author: JUSTICE BRESLIN

text:
    J AND B STEEL CONTRACTORS, INC., d/b/a J and B Steel Reinforcing and Erection, Plaintiff-Appellant, v. C. IBER AND SONS, INC., et al., Defendants-Appellees.
    Third District
    No. 3-92-0807
    Opinion filed June 4, 1993.
    Modified on denial of rehearing August 3, 1993.

      Miller, Hall & Triggs, of Peoria (William R. Kohlhase, of counsel), for appellant.
    Frank A. Hess, of Behrends & Gentry, of Peoria (F. Louis Behrends, of counsel), for appellees.
   JUSTICE BRESLIN

delivered the opinion of the court:

The plaintiff, J & B Steel Contractors, Inc., filed a four-count, second-amended complaint against the defendants, C. Iber & Sons, Inc., and Proctor Community Hospital. The trial court dismissed the plaintiff’s complaint with prejudice pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615). The plaintiff appeals. We reverse and remand for further proceedings.

The facts pleaded in the plaintiff’s complaint indicate that Proctor Community Hospital hired defendant C. Iber & Sons, Inc. (hereinafter the defendant), as a general contractor to make certain improvements on property that the hospital owned in Peoria, Illinois. Around December 4, 1989, the defendant subcontracted with the plaintiff to perform certain work on that project which involved a parking structure. On August 31, 1990, the plaintiff suspended its performance under the contract and subsequently filed this lawsuit.

Counts I through III of the plaintiff’s complaint sought foreclosure on a mechanics’ lien claim. Count IV sought damages for a breach of contract. All four counts referred to a contract between the parties which was attached to the complaint as exhibit A. The various counts all contained the following allegations. An “understanding” between the parties provided that the agreed price for the plaintiff’s work was $220,799 and that based on that agreed price, the plaintiff was not obligated to perform work beyond July 31, 1990. The contract between the parties was in accordance with the terms of a telephone “proposal” made on December 4, 1989, by the plaintiff to the defendant, and was “confirmed” by the defendant’s “Purchase Order *** dated December 7,1989” (exhibit A).

Counts I, III, and IV alleged that in its role as general contractor, the defendant had an obligation to supervise and coordinate the construction to allow the plaintiff to complete its work on or before July 31, 1990. Additionally, count I alleged that the defendant breached obligations of good faith and fair dealing implied in the contract by failing to correct problems in the progress of the work.

Count II alleged in the alternative that the plaintiff incurred extra costs as a consequence of a change in the “scope” of its work due to the defendant’s change in the schedule of the job so that it could not be completed by July 31, 1990. Count II further alleged that under the contract, the defendant was obligated to issue a change order to compensate the plaintiff for additional costs resulting from a change in “the scope of [the plaintiff’s] work to the period beyond July 31, 1990.”

Count III, unlike counts I and II, did not seek recovery for extra work or costs incurred as a result of the defendant’s breach of contract, but only recovery for the amount earned under the original contract price. Count IV sought recovery for lost profits on work that the plaintiff did not perform because of the defendant’s breach of contract.

The defendant filed a motion to dismiss the plaintiff’s second amended complaint pursuant to section 2 — 615 of the Code of Civil Procedure. The defendant’s motion alleged four different grounds for dismissal. Specifically, it alleged that: (1) the plaintiff did not comply with the notice requirements of section 24 of the Mechanics Lien Act (Ill. Rev. Stat. 1991, ch. 82, par. 24); (2) the “no damage for delay” clause in the written contract precluded any recovery for the plaintiff; (3) the plaintiff could not recover because it breached the contract; and (4) counts I through III of the plaintiff’s complaint were redundant. After a hearing on the motion, the trial court entered a written order granting the defendant’s motion to dismiss the plaintiff’s complaint with prejudice.

As a preliminary matter, we must address the issue of whether the plaintiff satisfied the statutory notice requirements under the Mechanics Lien Act.

Section 24 of the Mechanics Lien Act provides that the 90-day notice required to perfect a subcontractor’s lien must be “sent by registered or certified mail, with return receipt requested, and delivery limited to addressee only, to or personally served on the owner of record or his agent.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 82, par. 24.) Here, the certified mail receipt was not limited to addressee only. The receipt shows that Pat Anderson signed it. The record does not show what relationship the signatory had with the defendant hospital other than that he or she signed the certified receipt in the space for the signature of the agent.

Although Illinois case law provides that notice is required as a basis for bringing a cause of action under the Mechanics Lien Act, if the limited delivery language does not result in a lack of notification, then the lack of notice is not a basis for invalidating the plaintiff’s claim. Watson v. Auburn Iron Works, Inc. (1974), 23 Ill. App. 3d 265, 318 N.E.2d 508; Matthews Roofing Co. v. Community Bank & Trust Co. (1990), 194 Ill. App. 3d 200, 550 N.E.2d 1189; A.Y. McDonald Manufacturing Co. v. State Farm Mutual Automobile Insurance Co. (1992), 225 Ill. App. 3d 851, 587 N.E.2d 623.

The defendant argues that the plaintiff’s complaint should be dismissed because it does not specifically indicate that the defendant received actual notice.

We disagree. The defendant did not allege lack of actual notice and did not argue that it was prejudiced by a lack of actual notice. We find that it was incumbent on the defendant to assert that it did not receive actual notice. None of the cases cited by the parties allowed the dismissal of a complaint for lack of notice on a section 2— 615 motion to dismiss. Rather, the cited cases involved motions for summary judgment at which stage in the proceedings it could be conclusively determined whether the defendant received actual notice. Illinois courts interpret the strict requirements of notice by examining how effectively a party did in fact notify the other side rather than simply basing rights solely on whether every phrase of the statute was followed in exact detail. (See Matthews Roofing Co. v. Community Bank & Trust Co. (1990), 194 Ill. App. 3d 200, 550 N.E.2d 1189.) Accordingly, we hold that under the circumstance presented here, lack of notice was not a proper ground for dismissal on a section 2 — 615 motion to dismiss.

Turning to the merits, we note that the plaintiff first argues on appeal that the defendant had a duty to supervise the construction project so that the plaintiff could complete its work by July 31, 1990. While acknowledging that the written contract between the parties did not provide for a set completion date, the plaintiff argues that the written contract contemplated an “oral understanding” that the work would be completed by that date. In support of that argument, the plaintiff points to the following contractual provisions: (1) the first sentence of the contract stated, “Enter the following order in accordance with the terms and conditions of your telephone proposal on 12/4/89 ***”; (2) it was the responsibility of the plaintiff to supply a “full time foreman experienced in post-tension concrete, *** through July 31, 1990”; and (3) it was the defendant’s responsibility to “supply sufficient manpower and supervision to keep the job on schedule as agreed upon between [the parties].”

In response, the defendant points out that all four counts of the plaintiff’s complaint were premised on the allegation that it was “understood” that the plaintiff was not obligated to perform work beyond July 31, 1990. The defendant contends that the plaintiff’s reliance upon an alleged oral understanding or agreement was barred by the parol evidence rule and the doctrine of merger.

The parol evidence rule provides that when two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing. (3 A. Corbin, Corbin on Contracts §573, at 357 (1960); Maas v. Board of Trustees of Community College District No. 529 (1981), 94 Ill. App. 3d 562, 418 N.E.2d 1029.) Discussions, prior negotiations, and propositions are merged into the writing and the rights of the parties are governed by the written contract. (Evans v. Berko (1951), 408 Ill. 438, 97 N.E.2d 316.) However, the threshold question for the application of the rule is whether the writing was integrated, i.e., whether it was intended by the parties to be a final and complete expression of the entire agreement. Pecora v. Szabo (1981), 94 Ill. App. 3d 57, 418 N.E.2d 431.

Under Illinois law, there is a split of authority as to the proper standard to apply in determining whether an integration has taken place. According to one line of cases, the question of integration is normally to be decided by the trial court as a matter of law, and if the contract imports on its face to be a complete expression of the whole agreement, it is presumed that the parties introduced into it every material item, and parol evidence cannot be admitted to add another term to the agreement. (Pecora v. Szabo (1981), 94 Ill. App. 3d 57, 418 N.E.2d 431; Storybook Homes, Inc, v. Carlson (1974), 19 Ill. App. 3d 579, 312 N.E.2d 27; Armstrong Paint & Varnish Works v. Continental Can Co. (1921), 301 Ill. 102, 133 N.E. 711.) It has been noted that the court must determine this from the writing itself; the contentions of the parties are not the criterion which should guide the court in determining whether the written contract is a full expression of the agreement of the parties. (Armstrong Paint & Varnish Works v. Continental Can Co. (1921), 301 Ill. 102, 133 N.E. 711.) However, there is a second line of cases in Illinois holding that all relevant evidence may be considered to determine whether the document was a total integration and thus the complete agreement of the parties. Lewis v. Loyola University (1986), 149 Ill. App. 3d 88, 500 N.E.2d 47; Maas v. Board of Trustees of Community College District No. 529 (1981), 94 Ill. App. 3d 562, 418 N.E.2d 1029; Geoquest Productions, Ltd. v. Embassy Home Entertainment (1992), 229 Ill. App. 3d 41, 593 N.E.2d 727.

The ■ Illinois approach of determining whether an integration has taken place solely from the document itself is contrary to the approach taken by the Restatement (Second) of Contracts, the various treatise writers, and the weight of authority in other jurisdictions. (See Restatement (Second) of Contracts §209, at 115-16 (1981); 3 A. Corbin, Corbin on Contracts §588 (1960).) According to the Restatement approach, whether a writing has been adopted as an integrated agreement is a question of fact to be determined by the trial judge in the first instance as a question preliminary to an interpretative ruling or to the application of the parol evidence rule and is to be determined in accordance with all relevant evidence. (Restatement (Second) of Contracts §209, Illustration C, at 116 (1981).) Although the face of the document may weigh heavily in favor of the completeness of the integration (3 A. Corbin, Corbin on Contracts §585, at 485 (1960)), the party denying the integration must always be allowed to present respectable evidence to show that the antecedent agreement he alleges did in fact exist, and also to show that it has not been discharged or nullified by a new agreement, that is, that the writing produced in court was not assented to as a complete and accurate integration of a substituted agreement (3 A. Corbin, Corbin on Contracts §582, at 457 (1960)).

In the case sub judice, we note that the document at issue specifically referred to a prior telephone discussion and specifically directed that the contract be entered in accordance with the terms and conditions of that conversation. Moreover, the writing did not contain a clause purporting to merge all prior oral discussions into a final expression of the parties’ intention. We find that under the present circumstances, where the writing specifically refers to a prior oral discussion and does not purport on its face to be the sole or final expression of the parties’ intentions, the trial judge must consider all the surrounding facts and circumstances in determining the threshold question of whether the writing at issue amounted to a complete integration of the parties’ agreement. In other words, we decide to apply the standard enunciated in the Restatement and the second line of Illinois cases discussed above given the facts presented here. We further note that this threshold question is a preliminary question for the trial judge and parol evidence in that regard should not be presented in the presence of a jury. Furthermore, we again point out that if the trial judge finds a complete integration, then parol evidence may not be offered to vary the terms of the writing.

Accordingly, we hold that the trial court erred in granting the defendant’s motion to dismiss on this issue. In so holding, we note that this issue may be appropriate for resolution at the summary judgment stage if the pleadings, depositions, admissions, and affidavits show that there is no genuine issue as to any material fact. If a material issue of fact remains, the trial judge may then hear all relevant evidence of the integration issue. If the trial judge finds that the party asserting an integration has failed to meet its burden of proof in that regard, the court may then direct a verdict in favor of the opposing party.

The next issue raised on appeal is whether the “no damage for delay” clause precludes the plaintiff from recovery.

We note that Illinois courts have consistently recognized the validity of “no damage for delay” clauses. (See Bates & Rogers Construction Corp. v. Greeley & Hansen (1985), 109 Ill. 2d 225, 486 N.E.2d 902.) However, Illinois courts have also recognized several exceptions that prevent the application of that clause which include: bad faith; an unreasonable duration of delay; delay not within the contemplation of the parties; and delay attributable to inexcusable ignorance or incompetence. (John Burns Construction Co. v. City of Chicago (1992), 234 Ill. App. 3d 1027, 601 N.E.2d 1024.) In the instant case, we find that if the trial court determines that the parties had a specific agreement for a set completion date of July 31, 1990, then the defendant’s conduct would fall under an exception to the enforcement of the clause as delay not within the contemplation of the parties.

Next, the plaintiff claims that the typed provisions of the contract were inconsistent with certain printed provisions and that the typed provisions should control.

Initially, we note that this issue may be rendered moot depending on the trial court’s resolution of the integration issue. Nonetheless, we will address the issue since it might reoccur on remand. If it is determined that the parties did not have a valid oral agreement for a completion date of July 31, 1990, then we disagree that anything in the written contract was inconsistent to the point of requiring a need to resort to rules of construction. The typed provision at issue provides that the plaintiff was responsible to keep the job on schedule as agreed by the parties. The printed provision provided that the plaintiff had to prosecute the work in such a manner as the contractor may require and in accordance with a progress schedule that the defendant may provide. We find nothing inconsistent or ambiguous with these provisions.

Next, the defendant argues that the plaintiff was barred from recovering because the plaintiff first breached the contract by failing to prosecute the work.

If it is determined on remand that the parties had a valid agreement for a completion date of July 31, 1990, we would find that the defendant’s argument is without merit. Moreover, it is insignificant that the plaintiff waited one month to suspend its performance since it had a reasonable amount of time to choose its options. On the other hand, if it is determined that the defendant had no duty to allow the plaintiff to complete the work by July 31, 1990, then it follows that the plaintiff breached the contract by suspending its performance when it had no contractual right to do so.

Lastly, the plaintiff contends that the defendant breached its duty under the contract to give the plaintiff notice of a change in the “scope” of the work.

In count II of the complaint, plaintiff alleged that the defendant breached the contract by failing to give notice of a change in the scope of the work and that the change in job schedule was a change in the scope of the work. We find that this issue is a question of fact to be resolved by the trier of fact. If the time element was such an integral part of the parties’ contract, then a delay in the work could be a change in the scope of the work. It must be determined by the trier of fact whether the contract entered into by the parties contemplated that the scope of the work related to a set completion date.

For the foregoing reasons, we reverse the judgment of the circuit court of Peoria County and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.

LYTTON and STOUDER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    LORI GASAWAY, Petitioner-Appellee, v. DANIAL GASAWAY, Respondent-Appellant.
    Third District
    No. 3 — 92—0891
    Opinion filed July 1, 1993.

      Gary L. Morris, of Peoria, for appellant.
    Bill Butts Barrister, Ltd., of Galesburg (Bill Butts, of counsel), for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

The petitioner, Lori Gasaway, filed a petition for an order of protection against the respondent, Danial Gasaway, in the circuit court of Knox County. The trial court granted the order of protection. Danial appeals. We affirm as modified.

The record reveals that the parties were married in 1987 and had two children during the course of the marriage. They lived in Hammond, Indiana, until they were separated in December of 1991. At that time, Lori moved with the children to Knoxville, Illinois. The parties were divorced on June 30, 1992, by an order entered in an Indiana State court. The Indiana divorce decree awarded custody of the two minor children to Lori and granted Danial visitation.

Thereafter, Danial apparently had problems with visitation so he filed petitions for modification of visitation and for contempt against Lori in Lake County, Indiana. Lori did not appear, and on October 7, 1992, the Indiana court entered an order granting Danial temporary custody and issued a warrant for Lori’s arrest. One week later, Danial drove to Knox County, Illinois, and showed the custody order to an assistant State’s Attorney and was eventually told that the Knox County State’s Attorney’s office would not honor the Indiana order granting Danial custody. From there, Danial went to Lori’s home, but Lori would not relinquish custody of the children to Danial. Danial then returned to Hammond, Indiana. On October 15, 1992, Lori filed her petition for an order of protection against Danial.

On October 20, 1992, Danial went to the grade school in Knox County of the parties’ minor daughter, Whitney, and took her into his car after she exited the school bus. He then attempted to transport the child back to Indiana, but was stopped by a State trooper near Interstate 80 in Henry County, Illinois, and arrested on charges of child abduction.

The record further indicated that Danial made some threatening remarks to Lori over the phone in early 1992. There was also some evidence that the parties had a dispute over visitation in May 1992. The dispute eventually led to a “high speed chase” in which Lori’s brother pursued Danial’s truck down the highway while one of the children was a passenger in Danial’s vehicle.

On November 5, 1992, the court conducted a hearing on Lori’s petition for an order of protection at which it heard all of the above-mentioned evidence. At that hearing, Danial also presented Judge James B. Stewart with a certified copy of the Indiana custody order granting him temporary custody. Judge Stewart specifically asked Danial whether he intended to enforce the Indiana judgment by filing a petition to enroll it, and Danial responded that he did not. Judge Stewart then stated that he would not give effect to the Indiana custody order. He then entered a judgment granting Lori an order of protection which in relevant part prevented Danial from removing the children from the physical care of Lori or from the jurisdiction.

On appeal, Danial first argues that the trial court erred in not giving effect to Indiana’s modified temporary custody judgment even though he refused to enroll that judgment. He contends that section 7 of the Uniform Child Custody Jurisdiction Act (Custody Act) (Ill. Rev. Stat. 1991, ch. 40, par. 2107) prevented the trial court from exercising its jurisdiction in this case.

We disagree. Section 4(a)(1)(i) of the Uniform Child Custody Jurisdiction Act provides that Illinois has jurisdiction to make a child custody determination if Illinois is the child’s home State at the time of the commencement of the proceeding. (Ill. Rev. Stat. 1991, ch. 40, par. 2104(a)(1)(i).) Section 7 of the Uniform Child Custody Jurisdiction Act provides that a court of this State shall not exercise its jurisdiction under the Act if at the time of the filing of the petition a proceeding concerning custody of the child was pending in a court of another State exercising jurisdiction substantially in conformity with the Act. (Ill. Rev. Stat. 1991, ch. 40, par. 2107(a).) Section 7 of the Act further provides that if the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another State before the court assumed jurisdiction, it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum. Ill. Rev. Stat. 1991, ch. 40, par. 2107(c).

For a plenary order of protection to issue, the petitioner must establish jurisdiction under section 208 of the Illinois Domestic Violence Act of 1986 (Domestic Violence Act) (Ill. Rev. Stat. 1991, ch. 40, par. 2312 — 8). (In re Marriage of Los (1992), 229 Ill. App. 3d 357, 593 N.E.2d 126.) Section 208 of the Domestic Violence Act specifically states that personal jurisdiction is determined by the Uniform Child Custody Jurisdiction Act; thus, the same jurisdictional requirements for a custody modification order or enforcement of a custody order under the Custody Act apply to a proceeding for a plenary order of protection. (In re Marriage of Los (1992), 229 Ill. App. 3d 357, 593 N.E.2d 126.) However, the threshold question of whether Illinois has jurisdiction under section 4 of the Custody Act is separate from the question of whether Illinois should decline to exercise that jurisdiction under section 7 of the Custody Act. Under the Domestic Violence Act, the provisions for declining to exercise jurisdiction listed in section 7 of the Custody Act do not apply to the decision of whether jurisdiction is proper for an order of protection. (See Ill. Rev. Stat. 1991, ch. 40, par. 2311 — 1 et seq.) In other words, as long as jurisdiction is established under section 4 of the Custody Act, the trial court may enter an order of protection even though it might have been required to decline to exercise its jurisdiction under section 7 of the Custody Act if it had instead been faced only with a petition to modify an out-of-State custody judgment. This is in accord with the requirement that the Domestic Violence Act be liberally construed to promote the underlying purpose of the Act, which is to support the efforts of victims of domestic violence to avoid further abuse by promptly entering and diligently enforcing court orders which prohibit abuse so that victims are not trapped in abusive situations. (Ill. Rev. Stat. 1991, ch. 40, par. 2311 — 2(4).) Accordingly, we find that Danial’s reliance on section 7 is misplaced.

Here, Danial in essence sought to enforce an out-of-State custody judgment. The proper procedures to follow in enforcing an out-of-State custody judgment are found in section 511(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 511(c); see also Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785; Thomas v. Thomas (1974), 23 Ill. App. 3d 936, 321 N.E.2d 159), and section 16 of the Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1991, ch. 40, par. 2116; see also In re Marriage of Mauro (1989), 187 Ill. App. 3d 794, 543 N.E.2d 856). Section 511(c) of the Illinois Marriage and Dissolution of Marriage Act provides that in any post-judgment proceeding to enforce or modify the judgment of another State, the moving party shall commence the proceeding by filing a petition to enroll that judgment, attaching a copy thereof as a part of the petition. (Ill. Rev. Stat. 1991, ch. 40, par. 511(c).) Furthermore, a party seeking to enforce a custody judgment rendered by a sister State which meets the jurisdictional requirements of section 14 of the Custody Act must file a certified copy of the judgment with any clerk of an Illinois circuit court in order for it to have the same effect and be enforceable as a custody judgment rendered by an Illinois court. In re Marriage of Mauro (1989), 187 Ill. App. 3d 794, 543 N.E.2d 856.

In In re Marriage of Mauro (1989), 187 Ill. App. 3d 794, 543 N.E.2d 856, a father seeking to enforce an out-of-State custody modification appeared before an Illinois circuit court and presented a motion to enroll and enforce the out-of-State order pursuant to section 16 of the Act and to require the court to turn over custody to him. The Mauro court held that a certified copy of a custody judgment tendered by a sister State which meets the requirements of section 14 and has been filed with any clerk of an Illinois circuit court has the same effect and is enforceable as a custody judgment rendered by an Illinois court.

In the case at bar, Danial simply refused to follow the appropriate statutory procedures for enforcing an out-of-State custody judgment. Accordingly, we find that the trial court properly refused to consider his claim to temporary custody.

As an additional matter, we note that Danial is free to follow the Illinois statutory scheme for enforcement of the Indiana order and that he would then be entitled to enforcement of that order. However, we further note that the order in question is one of temporary custody. Accordingly, a final custody determination would have to be made in the case. At that point, Indiana would still have jurisdiction over custody matters in the case. (See Ill. Rev. Stat. 1991, ch. 40, par. 2104(b).) However, jurisdiction would also be proper in Illinois if Indiana conceded jurisdiction under section 7 of the Custody Act. Section 7 requires that an Illinois court, upon being informed that a proceeding concerning custody of a child was pending in another State, shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum. (Ill. Rev. Stat. 1991, ch. 40, par. 2107(c).) At that point, the most appropriate forum under the Custody Act would almost certainly be Illinois, since that would be the children’s home State, they would have resided there since December of 1991, much of the evidence of the children’s present and future care would be in Illinois, and the children would have a closer connection with Illinois. Thus, Illinois would most likely make the final custody determination in the case.

Danial next argues that the full faith and credit clause of the United States Constitution requires the trial court to recognize the Indiana order.

We find that Danial’s argument is without merit since it ignores the fact that Illinois readily gives full faith and credit to out-of-State custody orders when the previously mentioned statutory procedures are followed.

Danial next argues that the trial court erred in entering a protective order. He contends that his conduct did not warrant the imposition of a protective order.

Section 203 of the Domestic Violence Act of 1986 provides in relevant part that a petition for an order of protection shall allege that the petitioner has been abused by a former spouse. (Ill. Rev. Stat. 1991, ch. 40, par. 2312 — 3(a).) Under the Act, “abuse” includes “harassment,” which means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances, would cause a reasonable person emotional distress, and does cause emotional distress to the petitioner. (Ill. Rev. Stat. 1991, ch. 40, pars. 2311 — 3(1), (6).) A rebuttable presumption of emotional distress occurs when a respondent repeatedly threatens to improperly remove a child of the petitioner from the jurisdiction, improperly conceals that child from the petitioner, or makes a single such threat following an actual or attempted improper removal or concealment. (Ill. Rev. Stat. 1991, ch. 40, par. 2311 — 3(6)(v).) Moreover, section 214(b)(6) of the Domestic Violence Act allows the trial court to prohibit the respondent from removing a minor child from the State or concealing the child within the State. Ill. Rev. Stat. 1991, ch. 40, par. 2312 — 14(b)(6).

Here, it was undisputed that Danial attempted to remove the child from the State of Illinois and take custody of the child. We find that this was an improper attempt to remove the child from Lori. Danial claimed that he had a valid Indiana custody judgment. Again, we note that it was incumbent upon Danial to follow the applicable statutory requirements to enforce an out-of-State judgment. We hold that Danial’s actions constituted an improper removal or concealment of a child within the meaning of the Domestic Violence Act where he attempted to remove the child without either Lori’s permission or without an Illinois court order allowing him to do so.

Lastly, Danial argues that the trial court erred in imposing an order of protection without a termination date.

Initially, we note that there is no statutory provision requiring a trial court to state a termination date. However, section 220(b) of the Domestic Violence Act (Ill. Rev. Stat. 1991, ch. 40, par. 2312— 20(b)) provides that a plenary order of protection shall be valid for a fixed period of time, not to exceed two years. Thus, the instant order of protection would automatically expire two years from the date it was entered. Nonetheless, we find that under the circumstances presented here, where the children are not able to enjoy visitation with their father, the court should have set some limit on the duration of the order of protection. Accordingly, we hereby order that the trial court’s order of protection shall expire 90 days from the date the mandate is issued in this case.

For the foregoing reasons, the judgment of the circuit court of Knox County is affirmed as modified.

Affirmed as modified.

McCUSKEY, P.J., and STOUDER, J., concur.


author: JUSTICE BARRY

text:
    SCOTT HALL, Plaintiff-Appellee, v. JOHN KEATING, Defendant-Appellant (Chandelle Homes, Ltd., Defendant).
    Third District
    No. 3 — 92—0852
    Opinion filed July 9, 1993.
    Michael J. Martin, of Dunn, Martin & Miller, Ltd., of Joliet, for appellant.
    James P. Costello and Shannon M. Heilman, of James Paul Costello, Ltd., of Chicago, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The plaintiff, Scott Hall, joined a negligence action against the defendant, John Keating, with a Structural Work Act (Ill. Rev. Stat. 1991, ch. 48, par. 60 et seq.) claim already pending in Will County. Keating filed a motion to transfer venue to Du Page County. The circuit court of Will County denied his motion. Keating appeals.

The record reveals that on July 11, 1990, the plaintiff, Scott Hall, filed a complaint in the original action against the codefendant, Chandelle Homes, Ltd., alleging violation of the Structural Work Act. On November 4, 1990, Hall, a resident of Du Page County, was involved in an automobile accident with John Keating, a resident of Du Page County. The accident occurred in Du Page County.

On November 12, 1991, Hall amended his complaint against Chandelle Homes, Ltd., adding a negligence count against Keating. The negligence claim against Keating alleged that the automobile accident had aggravated the injuries previously sustained by Hall in the Chandelle Homes, Ltd., incident.

Keating filed the motion to transfer venue to Du Page County. The circuit court of Will County denied his motion. Keating appeals.

On appeal, Keating argues that the trial court abused its discretion by denying his motion to transfer venue.

The nature of venue is set forth in section 2 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 101). Section 2— 101 provides that:

“Except as otherwise provided in this Act, every action must be commenced (1) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him or her and not solely for the purpose of fixing venue in that county, or (2) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 110, par. 2 — 101.

In the instant case, the Structural Work Act claim arose in Will County. Additionally, defendant Chandelle Homes, Ltd., is a resident of Will County. Thus, the circuit court did not abuse its discretion by failing to transfer venue of the case against Chandelle Homes, Ltd., and Keating to Du Page County.

However, if Chandelle Homes, Ltd., were not a party to the suit, the trial court would have abused its discretion by failing to transfer venue to Du Page County because there would have been no cause of action arising in Will County nor any defendant residing in Will County. Additionally, as noted in section 2 — 101, venue would not be proper if Chandelle Homes, Ltd., were joined as a defendant for the sole purpose of fixing venue in Will County. Thus, we need to turn our attention to whether joinder was proper.

Section 2 — 405 of the Code of Civil Procedure provides:

“(a) Any person may be made a defendant who, either jointly, severally or in the alternative, is alleged to have or claim an interest in the controversy, or in any part thereof, or in the transaction or series of transactions out of which the controversy arose, or whom it is necessary to make a party for the complete determination or settlement of any question involved therein, or against whom a liability is asserted either jointly, severally or in the alternative arising out of the same transaction or series of transactions, regardless of the number of causes of action joined.
(b) It is not necessary that each defendant be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against him or her ***.
(c) If the plaintiff is in doubt as to the person from whom he or she is entitled to redress, he or she may join two or more defendants, and state his or her claim against them in the alternative in the same count or plead separate counts in the alternative against different defendants, to the intent that the question which, if any, of the defendants is liable, and to what extent, may be determined as between the parties.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 405.

Specifically, with regards to personal injury claims arising out of two occurrences, it has been held that unless it can be determined with reasonable certainty which occurrence plaintiff’s alleged injuries are attributable to, the extent to which each incident contributed thereto is a common question of fact. (Schwartz v. Swan (1965), 63 Ill. App. 2d 148, 211 N.E.2d 122.) More simply, joinder of separate causes is permissible: (1) where the separate acts of the defendants in question produce a single, indivisible injury; or (2) where one defendant causes the injury and the other defendant exacerbates that same injury. Denzel v. County of Cook (1978), 65 Ill. App. 3d 286, 382 N.E.2d 578; see Diehl v. H.J. Heinz Co. (7th Cir. 1990), 901 E2d 73; Yanan v. Ewing (1990), 205 Ill. App. 3d 96, 562 N.E.2d 1243; J. Friedenthal, M. Kane, A. Miller, Civil Procedure §6.4, at 331 (1985).

In the instant case, there was no evidence presented indicating that the plaintiff’s joinder of Keating into the Chandelle Homes, Ltd., case was done in bad faith or merely to establish venue in Will County. (See Barenbrugge v. Rich (1986), 141 Ill. App. 3d 1046, 490 N.E.2d 1368.) Moreover, the claim against Chandelle Homes, Ltd., was filed prior to the auto accident. Thus, this was not a case of Chandelle Homes, Ltd., being brought into a suit against Keating merely to gain a more favorable venue. Rather, this appears to be a case where the action against Keating was brought into the previously filed Chandelle Homes case to help assure that the liability for the injury was correctly apportioned between one defendant that allegedly caused the injury and the other defendant who allegedly exacerbated that same injury. (See J. Friedenthal, M. Kane, A. Miller, Civil Procedure §6.4, at 331 n.12 (1985).) Accordingly, joinder was proper.

Since joinder was proper, venue was proper in either Du Page County, where defendant Keating resided and the auto accident took place, or Will County, where defendant Chandelle Homes, Ltd., resided and the Structural Work Act claim arose. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 101.) Thus, Hall was entitled to choose the county in which to try the case. (See Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839.) The only reason for the circuit court to have interfered with that choice and transfer the case to Du Page County would have been based on the doctrine of forum non conveniens.

Our supreme court discussed the doctrine of forum non conveniens in Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 301 N.E.2d 729. In that case, the court stated that in the interest of fundamental fairness and sensible and effective judicial administration, a court may decline jurisdiction of a case even though it may have proper jurisdiction over the parties and the subject matter involved when another forum can better serve the convenience of the parties and the ends of justice.

In the instant case, Keating raised venue and joinder before the circuit court, but not forum non conveniens. Instead, forum non conveniens was put forth by Hall and Chandelle Homes, Ltd., as a reason for keeping the cause in Will County. While it is not clear whether the circuit court’s ruling was premised on forum non conveniens, it is clear that the forum non conveniens doctrine is not applicable to the instant case.

In the instant case, fundamental fairness and sensible and effective judicial administration did not favor one county over the other. We note that Will and Du Page Counties are adjacent to each other and thus the convenience factors are minimal. Additionally, although almost all of the witnesses for the Structural Work Act claim are in Will County, almost all of the witnesses for the auto accident claim are in Du Page County. Thus, the equities of convenience and the sensible administration of justice supported trying the case in either county almost equally. Unless the balance of those equities is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed. Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839.

In conclusion then, joinder was proper, and thus venue was proper in either Du Page County or Will County. Hall was therefore entitled to choose the county in which to try the case. The only reason for the circuit court to interfere with that choice and transfer the case to Du Page County would have been based on the doctrine of forum non conveniens. However, Keating did not argue for removal based upon forum non conveniens, and even if he had, removal to Du Page County on that basis would have been improper.

The circuit court of Will County is affirmed.

Affirmed.

STOUDER and BRESLIN, JJ., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNEST R. MYERS, Defendant-Appellant.
    Third District
    No. 3 — 92—0581
    Opinion filed July 2, 1993.

      Janet Gandy Fowler, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and J. Paul Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant Ernest Myers was convicted of unlawful possession of a controlled substance with intent to deliver and was sentenced to a 10-year term of imprisonment. On appeal, defendant contends that his defense counsel was ineffective and that he was denied a fair trial by certain comments by the prosecutor during closing argument. We affirm.

Officer James Reilly of the Joliet police department testified that he went to the area where the defendant was eventually arrested in response to a report of a possible burglary of a pickup truck. When Reilly first drove by the area, there was no one in the truck, but upon returning a short time later he saw a man leaning into the truck with his feet sticking out of the driver’s side. Reilly asked the man to get out of the truck, and Reilly recognized the man as Anthony Hite. Hite had prior arrests for weapon violations.

Reilly testified that when he arrived at the scene there was a car with its motor running parked directly ahead of the pickup truck and another vehicle about 20 to 25 feet ahead of the truck with a person inside. Hite told Reilly that the truck belonged to his sister, that it had broken down earlier, and he had come back to work on it. While Reilly talked with Hite, several other officers began to arrive, and the defendant got out of his car and approached the truck. The defendant told Reilly that he was there to help with the truck, and the defendant indicated to Hite that they should leave and get the truck later. While this conversation was taking place, Officer Gonzales saw a gun lying on the front seat of the car that was parked directly in front of the pickup truck. Gonzales asked Hite if the car was his, and Hite began to walk towards the car. The officers then began struggling with Hite in an attempt to place him under arrest, and Reilly told Officer Yrquidi to keep an eye on the defendant, who was standing near the truck. Yrquidi told the defendant to put his hands on the hood of the truck and he conducted a brief pat-down search of the defendant’s waist area. Yrquidi then continued to watch the defendant while the other officers took Hite into custody. According to Yrquidi, the defendant took his hands off the truck, reached into his pocket and dropped a small change purse onto the running board of the truck. After Hite was taken into custody, Reilly picked up the purse, which was found to contain 17.8 grams of cocaine. The defendant was then arrested and taken to the police station, where a subsequent search revealed that defendant was carrying a telephone pager and $260. Officer Yrquidi testified that approximately 15 to 30 seconds elapsed from the time that the gun was discovered until the defendant was taken into custody.

The defendant testified that Hite flagged him down as he was driving to his sister’s house. Officer Reilly asked the defendant if he had a license because someone was needed to drive the truck away from the area. Defendant replied that he did not want to leave his car, but he would try to get someone to drive the truck. As defendant was leaving, Officer Gonzales saw the gun in Hite’s car and Yrquidi pointed a gun at defendant and told him to put his hands on the truck. Defendant stated that he was halfway across the parking lot at the time. According to the defendant, he was standing with his hands on the hood of the truck for five to seven minutes and he was thoroughly searched during this time. Defendant denied ever having seen the change purse and he also denied having any drugs in his possession. As indicated earlier, the defendant was found guilty of unlawful possession of a controlled substance with intent to deliver.

Defendant maintains that his defense counsel was ineffective because he failed to file a motion to suppress the cocaine. Defendant contends that he was subjected to an unreasonable search and seizure and that the drugs were a product of improper police conduct. Defendant argues that the initial pat-down search was not based on specific and articulable facts as required by. Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, but was instead based on his mere association with a person suspected of criminal activity. (See Ybarra v. Illinois (1979), 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338.) Defendant further argues that even if the pat-down search was proper, his continued detention after Officer Yrquidi failed to find a weapon was improper because an investigative detention under Terry must be temporary and last no longer than is necessary to effectuate the purpose of the stop. See Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319.

To prevail on a claim of ineffective assistance of counsel, defendant must establish both that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that but for counsel’s errors the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Errors in trial strategy, judgment or tactics alone will not render counsel’s performance deficient. (People v. Siverly (1990), 194 Ill. App. 3d 981, 551 N.E.2d 1040.) It has often been held that the decision whether or not to file a motion to suppress is generally a matter of trial tactics and is not subject to review. (See People v. Morris (1992), 229 Ill. App. 3d 144, 593 N.E.2d 932; People v. Fernandez (1987), 162 Ill. App. 3d 981, 516 N.E.2d 366; People v. Atkins (1987), 161 Ill. App. 3d 600, 515 N.E.2d 272.) It has also been held, however, that failing to file a motion to suppress can constitute ineffective assistance of counsel under certain circumstances (see Fernandez, 162 Ill. App. 3d 981, 516 N.E.2d 366 (and cases cited therein)), such as where it appears from the record that such a motion constituted the defendant’s only viable defense (see, e.g., People v. Stewart (1991), 217 Ill. App. 3d 373, 577 N.E.2d 175). To prevail on a motion that trial counsel was ineffective for failing to file a motion to suppress, the defendant must show that the motion would have been granted and that the outcome of the trial would have been different if the evidence had been suppressed. Morris, 229 Ill. App. 3d 144, 593 N.E.2d 932.

In this case we find that defendant has failed to show that a motion to suppress would have been granted. A police officer may detain a suspect and conduct a limited search for weapons when he has reason to believe that the individual is armed. “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” (Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.) Here, in response to a report of a possible burglary, Officer Reilly encountered two men, one of whom he recognized as potentially dangerous from previous encounters. When the gun was discovered and the decision was made to arrest Hite, we believe that any reasonably prudent police officer would have briefly detained the defendant and determined whether he was armed. While a police officer may not search a person merely because he is with someone who has been arrested, the officer may conduct a pat-down of the arrested person’s companions to protect himself or others. (People v. Garner (1977), 50 Ill. App. 3d 294, 365 N.E.2d 595; see also People v. Santoro (1989), 192 Ill. App. 3d 895, 549 N.E.2d 708; People v. Williams (1975), 28 Ill. App. 3d 189, 328 N.E.2d 89.) As the court stated in United States v. Berryhill (9th Cir. 1971), 445 F.2d 1189, 1193:

“It is inconceivable that a peace officer effecting a lawful arrest of an occupant of a vehicle must expose himself to a shot in the back from defendant’s associate because he cannot, on the spot, make the nice distinction between whether the other is a companion in crime or social acquaintance. All companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory ‘pat-down’ reasonably necessary to give assurance that they are unarmed.”

We also find that the length of time the defendant was detained was not unreasonable. Officer Yrquidi testified that only 15 to 30 seconds elapsed from the time the gun was discovered until the time when the cocaine was found and the defendant was arrested. While the defendant testified that he was standing with his hands on the truck for five to seven minutes, we note that even longer periods of detention have been held to be permissible under Terry. (See United States v. Sharpe (1985), 470 U.S. 675, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (20 minutes); People v. Starks (1989), 190 Ill. App. 3d 503, 546 N.E.2d 71 (10 minutes).) Since defendant has failed to show that a motion to suppress would have been granted, his claim that defense counsel was ineffective must fail.

The defendant next contends that he was denied a fair trial by the following comments made by the prosecutor during closing argument:

“This is a big set up, all the police are lying. I submit to you they were not lying. They told you the truth. This incident happened relatively quickly. These were officers with two to three years’ experience on the force. You have to weigh the credibility of each witness that testified.
* * *
There was no conspiracy here. There was no make-believe story on the part of the police. They recovered the items. They told you what happened, they testified truthfully. They had no reason to come in here and lie.”

Defendant argues that the prosecutor interjected his personal belief in the veracity of the witnesses and also improperly argued that the police officers were more credible than the defense witnesses simply because of their status as police officers. We disagree.

Prosecutors have a great deal of latitude during closing arguments, and for a remark to constitute reversible error, it must have resulted in substantial prejudice to the accused, such that the verdict would have been different had it not been made. (People v. Morgan (1986), 112 Ill. 2d 111, 492 N.E.2d 1303.) Statements that are based upon facts in evidence, or upon reasonable inferences drawn from the evidence, are within the scope of proper argument. (People v. Fields (1990) , 135 Ill. 2d 18, 552 N.E.2d 791.) While it is generally improper to vouch for the credibility of a witness or to express a personal opinion on a case (People v. Emerson (1987), 122 Ill. 2d 411, 522 N.E.2d 1109), it is not improper to comment on the credibility of the witnesses when such comments are based on the evidence (People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612; People v. Killen (1991), 217 Ill. App. 3d 473, 577 N.E.2d 560). We find that the statements by the prosecutor were permissible comments on the evidence or reasonable inferences drawn therefrom. We also find nothing improper about the prosecutor’s reference to the officers’ experience or their lack of reason to lie. See Killen, 217 Ill. App. 3d 473, 577 N.E.2d 560 (repeated references to witness’ status as sworn police officer with no motive to lie not improper).

Finally, since we have found that the comments complained of by defendant were not improper, we reject defendant’s argument that his defense counsel was ineffective for failing to object to those comments. For the reasons stated above, the judgment of the circuit court is affirmed.

Affirmed.

BARRY and STOUDER, JJ., concur.


author: JUSTICE LYTTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAMONT WATSON, Defendant-Appellant.
    Third District
    No. 3 — 92—0910
    Opinion filed July 7, 1993.
    Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Clarke Erickson, State’s Attorney, of Kankakee (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LYTTON

delivered the opinion of the court:

Following a bench trial, the defendant, Lamont Watson, was convicted of armed violence, unlawful possession of a controlled substance, and unlawful use of weapons. He was sentenced to six years’ imprisonment. The defendant appeals.

The record reveals that the defendant’s arraignment was held on September 11, 1990. At that time, he pled not guilty and asserted his right to a jury trial.

A pretrial hearing was held on March 3, 1992. At that hearing, the defendant was represented by counsel but was not present in person. Defense counsel stated, “What I’d like to do is set [case number] 565 for bench trial and we need to make the note to do the jury waiver of Mr. Watson the date that we set.” The trial court then continued the cause for a bench trial, stating, “Somewhere in those minutes parenthetically in nice, capital letters get defendant’s jury waiver before starting trial.”

The trial was initially scheduled for May 12, 1992, but was rescheduled a number of times. The defendant was present at these reschedulings, at which time references were made to the defendant having a bench trial. A bench trial was eventually held on July 6, 1992. The defendant was found guilty and was sentenced to a six-year term of imprisonment.

On appeal, the defendant first argues that his convictions should be reversed and the cause remanded for a new trial because the record fails to establish that he knowingly waived his right to a jury trial. We agree and reverse.

We begin by noting that the defendant failed to raise this issue by objecting either at trial or in a post-trial motion. However, the right to a jury trial is a substantial right and should be considered even where it is not raised prior to appeal. 134 Ill. 2d R. 615(a); People v. Hall (1991), 221 Ill. App. 3d 864, 583 N.E.2d 54.

It is generally understood that a jury waiver must be knowingly and understandingly made. (People v. Smith (1985), 106 Ill. 2d 327, 478 N.E.2d 357.) A determination cannot rest on any precise formula and necessarily turns on the facts of each particular case. (People v. Frey (1984), 103 Ill. 2d 327, 469 N.E.2d 195.) A jury waiver may be valid if it is made by defense counsel in the presence of the defendant and the defendant does not object. (People v. Clauson (1989), 182 Ill. App. 3d 268, 537 N.E.2d 1048.) However, a defendant will not be deemed to acquiesce to a jury waiver his counsel made outside his presence. People v. Hall (1991), 221 Ill. App. 3d 864, 583 N.E.2d 54; People v. Clauson (1989), 182 Ill. App. 3d 268, 537 N.E.2d 1048.

The State argues that references to a bench trial which were made in the defendant’s presence when the trial was rescheduled constituted a jury waiver. We disagree.

In the instant case, at the March 3, 1992, pretrial hearing at which the defendant was not present, defense counsel indicated that a bench trial was desired. At that time, defense counsel noted that the defendant’s jury waiver would have to be obtained on the trial date. The trial court agreed that it would be necessary to obtain the defendant’s jury waiver prior to trial. The cause later proceeded to trial, but the record contains no evidence that the defendant’s waiver was ever obtained. Vague references to a bench trial at the rescheduling conferences were not sufficient to constitute a valid jury waiver, especially in light of the fact that the record is devoid of evidence suggesting that the defendant was ever apprised of his right to a jury trial. Under these circumstances, we are unable to say that the defendant waived his right to a jury trial.

Accordingly, we reverse and remand for a new trial based upon our-finding that the record fails to establish that the defendant knowingly and understanding^ waived his right to a jury trial. Because of our resolution of this issue, we do not reach the defendant’s other contentions of error.

The judgment of the circuit court of Kankakee County is reversed and this cause is remanded.

Reversed and remanded.

McCUSKEY, P.J., and BARRY, J., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS C. BENNETT, Defendant-Appellant.
    Third District
    No. 3-92-0203
    Opinion filed July 7, 1993.
    Edwin J. Anderson, of State Appellate Defender’s Office, of Mount Vernon, for appellant.

      Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Dennis C. Bennett, was tried by a jury and found guilty of two counts of child pornography. He was sentenced to 180 days in jail, four years of probation, a $2,000 fine, a $20 crime victims’ assistance fine, and payment of restitution to the victim for counseling expenses.

The sole issue on appeal is whether he is entitled to credit toward the $2,000 fine for the 61 days he spent in custody prior to sentencing.

The record shows that Bennett was taken into custody on July 21, 1991. He posted bond and was released on July 22, 1991. On December 11, 1991, Bennett was found guilty, and the court ordered him to be held without bail until sentencing. On February 7, 1992, the court imposed sentence.

Section 110 — 14 of the Code of Criminal Procedure of 1963 provides:

“Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant.” Ill. Rev. Stat. 1991, ch. 38, par. 110-14.

Bennett was in custody on July 21, 1991, and released on bond on July 22, 1991. This counts as two days in custody and $10 credit toward the fine, which the State concedes. The State, however, argues that Bennett is not entitled to credit for the 59 days he spent in custody after being found guilty but prior to being sentenced. The State contends that such credit is improper because Bennett was held without bail and because the incarceration occurred after a guilty finding. We disagree.

Where a statute is certain and unambiguous, it must be applied as its plain language dictates. (People v. Robinson (1982), 89 Ill. 2d 469, 433 N.E.2d 674.) Here, the statute provides for the award of fine credit to a defendant who is incarcerated on a “bailable” offense. The statute does not make a distinction between defendants who are financially unable to post bond and those who are denied the opportunity to post bond by the trial court. The statute also does not prohibit the award of credit for the period of incarceration after a guilty finding. Since Bennett was incarcerated on a bailable offense (Ill. Rev. Stat. 1991, ch. 38, par. 110 — 4), we conclude that he is entitled to the disputed credit for the entire 61 days. See People v. Peterson (1992), 227 Ill. App. 3d 20, 590 N.E.2d 935; People v. Goodey (1992), 227 Ill. App. 3d 232, 591 N.E.2d 102; People v. Tinoco (1989), 185 Ill. App. 3d 816, 541 N.E.2d 1198.

For the reasons indicated, we reduce Bennett’s $2,000 fine to $1,695. The judgment of the circuit court of Peoria County is affirmed as modified.

Affirmed as modified.

STOUDER and SLATER, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLARENCE WALTON, Defendant-Appellant.
    Third District
    No. 3-92-0867
    Opinion filed July 2, 1993.

      Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a jury trial, the defendant, Clarence Walton, was convicted of the offense of armed robbery. He was sentenced to a term of six years in the Department of Corrections. On appeal, the defendant argues that he was deprived of a fair trial when the prosecutor, during closing argument, commented that he had a motive to lie because he had been accused of a crime. The defendant also argues that the trial judge erred in refusing his modified jury instruction that would have told the jurors that they could take a witness’ drug addiction into account in judging the believability of the witness. For the reasons that follow, we affirm.

James O’Donnell testified that at about 12:30 a.m. on May 14, 1992, he was smoking a cigarette on his front porch when he was approached by the defendant. O’Donnell recognized the defendant as someone he had seen around the neighborhood and knew as “C.W.” The defendant held a knife to O’Donnell’s throat and asked if he had any money. O’Donnell replied that he had $11. The defendant then took $11 from O’Donnell’s pocket and walked away, patting his coat pocket as if he had a gun inside. The defendant told O’Donnell that he would “fill his ass full of holes” if he got into any trouble over the incident. O’Donnell went inside, got a baseball bat, and followed the defendant for awhile. Eventually, O’Donnell went back inside and called the police.

On cross-examination, O’Donnell admitted that he had been a crack cocaine addict. O’Donnell claimed that he had been straight for approximately six weeks to two months before the incident. At the time of trial, O’Donnell claimed to have been straight for the previous five months, with only one relapse that occurred at a party a few weeks after the robbery.

LaToya Johnson, the defendant’s girlfriend, testified that at about 8 p.m. on May 13, 1992, the defendant left their apartment to run some errands for his mother. Johnson went to bed at around the same time. The defendant was there when she got up at around 5:30 a.m.

Detective Glen Perkins of the Peoria police department testified that he arrested the defendant on May 20. At the time of his arrest, the defendant told police that his name was Andre Kelly. When questioned about the robbery incident, the defendant claimed to know nothing about it. The defendant stated that on the date in question he was at his girlfriend’s apartment from 3:30 p.m. until 7 a.m. the next morning.

The defendant related a.markedly different account of the robbery incident. The defendant testified that, on the night of the incident, he was walking past O’Donnell’s apartment when O'Donnell got his attention by tapping on his window. O’Donnell then came outside and asked the defendant if he had any drugs. The defendant claimed that he had known O’Donnell for about a year and had sold crack cocaine to him on several occasions.

The defendant offered to sell O’Donnell some crack cocaine for $20, but O’Donnell had only $11. O’Donnell said that he would get the rest of the money and he went back into his apartment. When O’Donnell came back out, the defendant gave him the cocaine. O’Donnell then pulled a knife on the defendant. The defendant and O’Donnell exchanged a few words, following which the defendant slapped the knife away from his face and turned and walked away. The defendant then said to O’Donnell, “Fuck it, I’m going to call the police on you anyway.” After reflecting further on the propriety of a drug pusher calling the police to complain that he was robbed of his crack, the defendant decided not to make the call. O’Donnell kept the crack cocaine and the $11.

In rebuttal, the State produced O’Donnell’s mother, who testified that when O’Donnell came into their apartment at about 12:30 a.m. on the date in question he was very upset and wanted to call the police. She did not see a knife on him.

The jury found the defendant guilty of armed robbery. The circuit court sentenced him to a term of six years’ imprisonment. The defendant now brings the instant appeal.

The defendant contends that he was denied a fair trial when the prosecutor asserted during closing argument that he had a motive to lie simply because he had been accused of a crime. We have condemned the prosecutor for making similar remarks in several recent cases. (See People v. Crowder (1993), 239 Ill. App. 3d 1027, 607 N.E.2d 277; People v. Ellis (1992), 233 Ill. App. 3d 508, 599 N.E.2d 498; People v. Watts (1992), 225 Ill. App. 3d 604, 588 N.E.2d 405.) As we pointed out in Ellis, the defendant has no motive to lie if he is innocent. By arguing that he has such a motive, the State is implying that he committed the crime charged. This implication serves to erode the presumption of innocence.

While we have made it clear to the State that we do not approve of such tactics, it is incumbent on defense counsel to point out errors in the trial court. To preserve an issue for review both a trial objection and a written post-trial motion raising the issue are required. (People v, Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Defense counsel neither objected to the improper argument nor raised it in the post-trial motion. Nevertheless, defendant wants us to address the issue as plain error pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). Plain error is defined as error of such magnitude that it denied the defendant a fair trial, or error in a trial where the evidence is closely balanced. (People v. Whitehead (1987), 116 Ill. 2d 425, 508 N.E.2d 687.) We find that the prosecutor’s comments, though improper, did not amount to plain error. The evidence showed that the defendant lied to the police about his true name and also about his whereabouts on the night of the incident. The defendant initially stated that he was Andre Kelly. He later admitted his true identity, but stated that he had been at his girlfriend’s apartment all evening on the date in question. Then, at trial, the defendant testified that he was at the scene of the crime, but that it was actually he who had been robbed. Given this set of circumstances, the prosecutor’s implication that the defendant was a liar could not have prejudiced him.

The defendant contends that the evidence was closely balanced because the case turned on a mere question of credibility between O’Donnell and himself. Such an argument ignores both the fact that O’Donnell’s version of the events was corroborated by his mother’s testimony that he was upset and wanted to call the police after the incident, and also the fact that the defendant had been impeached by his prior conduct and statements to the police. We decline to address the prosecutor’s comments as plain error.

The defendant also argues that the trial judge erroneously-refused one of his proposed jury instructions. The defendant proposed a modified version of Illinois Pattern Jury Instructions, Criminal, No. 1.02 (3d ed. 1992) (hereinafter IPI Criminal 3d No. 1.02), that was rejected by the trial court. The court gave the standard IPI Criminal 3d No. 1.02 instruction, which reads as follows:

“Only you are the judges of the believability of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias, or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case.
You should judge the testimony of the defendant in the same manner as you judge the testimony of any other witness.”

The defendant proposed adding the phrase “his drug addiction” to the list of factors that can be considered. According to the defendant, this tendered modification was “crucial” to the outcome of the instant case because the prosecution’s witness, James O’Donnell, was an admitted crack addict.

When a party tenders a non-IPI jury instruction, the trial judge has discretion to determine if the instruction should be given. (People v. Maldonado (1989), 193 Ill. App. 3d 1062, 550 N.E.2d 1011.) Also, any error in refusing a defendant’s tendered instruction on the credibility of a witness is harmless if the failure does not so prejudice the defendant as to affect the verdict. People v. Bertucci (1980), 81 Ill. App. 3d 851, 401 N.E.2d 1123.

We initially note that the evidence at trial did not support the giving of the tendered instruction. The unrebutted testimony of O’Donnell indicated that he was using drugs neither at the time of the incident nor at the time of trial. Further, the facts of O’Donnell’s drug usage, his previous addiction, and his relapse were explored in great detail during the trial. It is not reversible error to deny a tendered addict instruction, where evidence of the addiction is before the jury so that it can make its own determination of the believability of the witness. (People v. Steidl (1991), 142 Ill. 2d 204, 568 N.E.2d 837.) In Steidl, our supreme court rejected the addict instruction tendered by the defendant and held that the giving of the standard instruction on the believability of the witnesses (IPI Criminal 2d No. 1.02) was sufficient when the witness’ drug addiction was thoroughly discussed at trial. (Steidl, 142 Ill. 2d at 238-39, 568 N.E.2d at 851.) Similarly, in the instant case, O’Donnell’s drug addiction was thoroughly discussed at trial, making the standard IPI Criminal 3d No. 1.02 sufficient under the circumstances.

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

Affirmed.

SLATER and BARRY, JJ., concur.


text:
    QUANTUM CHEMICAL CORPORATION, Plaintiff-Appellant, v. HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY et al., Defendants-Appellees.
    Third District
    No. 3-92-0854
    Opinion filed July 9, 1993.

      Robert A. Downing, Gerard D. Kelly, and Robert E. Easton, all of Sidley & Austin, of Chicago (Eugene A. Schoon, of counsel), for appellant.
    Kimberley K. Baer and John A. Bannon, both of Skadden, Arps, Slate, Meagher & Flom, of Chicago (Susan Getzendanner, of counsel), for appellee Hartford Steam Boiler Inspection and Insurance Company.
    Lawrence Zelle and Michael R. Cashman, both of Zelle & Larson, of Minneapolis, Minnesota (Robert M. Wattson, of counsel), for appellee Industrial Risk Insurers.
    Henry K. Daar, of Kostow & Daar, of Chicago, for appellee DR Insurance Company.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff, Quantum Chemical Corporation (Quantum), appeals from an order of the circuit court of Grundy County dismissing plaintiff’s complaint pursuant to section 2 — 619(a)(3) of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(a)(3)). We affirm in part, reverse in part and remand.

Quantum owns and operates a chemical plant in Morris, Illinois. Defendant Hartford Steam Boiler Inspection and Insurance Company (HSB) provides boiler and machinery insurance to Quantum. Defendants Industrial Risk Insurers and DR Insurance Company (property insurers) provide Quantum with commercial property insurance.

On September 12, 1989, a heat exchanger failed at Quantum’s Morris plant. The failure and ensuing fire resulted in two deaths, several injuries and extensive property damage. Production was halted for more than six months.

Quantum submitted claims to its insurers for $34,356,554 for property damage and $152,766,000 for business interruption losses. HSB denied coverage for all losses from the incident, claiming that such losses resulted from an “explosion” which was excluded from coverage under the terms of its policy. The property insurers settled with Quantum for the property damage but denied coverage for business interruption losses and the loss of the heat exchanger, claiming that the incident resulted from a preexisting crack in the heat exchanger which was covered by HSB’s policies.

On October 29, 1991, HSB filed a declaratory judgment action in the United States District Court for the Northern District of Illinois seeking a determination that the damages resulting from the Morris plant accident were not covered by its policy. Jurisdiction in the Federal suit was based upon diversity of citizenship. On April 3, 1992, prior to filing an answer in the Federal suit, Quantum filed a complaint against HSB and the property insurers in Grundy County circuit court alleging breach of the insurance contracts and a bad-faith failure to pay under the policies.

On June 19, 1992, the defendants filed motions to dismiss Quantum’s complaint pursuant to section 2 — 619(a)(3). Defendants argued that Quantum’s complaint arose from the same events and occurrences that formed the basis of HSB’s previously filed Federal declaratory judgment action and, therefore, Quantum’s claims against HSB had to be asserted as a compulsory counterclaim in the Federal suit pursuant to Federal Rule 13(a). (Fed. R. Civ. P. 13(a).) Although diversity of citizenship is lacking between Quantum and the property insurers, the Federal court could exercise supplemental jurisdiction over Quantum’s claims against the property insurers since those claims also arise from the same events and occurrences and form a part of the same controversy as the original Federal suit filed by HSB. (See 28 U.S.C. §1367 (1990).) Defendants argued that because all of the parties could properly be brought before the Federal court, the policy of avoiding duplicative litigation and inconsistent judgments necessitated a dismissal or stay of the Grundy County action. The trial court agreed and dismissed Quantum’s complaint. Quantum’s motion to reconsider was denied and this appeal followed.

Section 2 — 619(a)(3) provides in relevant part:

“Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. ***
* * *
*** That there is another action pending between the same parties for the same cause.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(a)(3).)

The purpose of this statute is to avoid duplicative litigation. (A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 419 N.E.2d 23.) The decision to grant or deny a section 2 — 619(a)(3) motion is within the discretion of the trial court (Kellerman v. MCI Telecommunications Corp. (1986), 112 Ill. 2d 428, 493 N.E.2d 1045) and will not be disturbed absent an abuse of that discretion (Golden Rule Insurance Co. v. Robeza (1990), 194 Ill. App. 3d 468, 551 N.E.2d 693).

Initially, we reject Quantum’s argument that the trial court erred in dismissing its complaint because the Grundy County action and the Federal suit are not “for the same cause,” since the Federal suit did not include Quantum’s claims against the property insurers. The statute requires that the two suits involve the same cause, not the same cause of action. (Catalano v. Aetna Casualty & Surety Co. (1982), 105 Ill. App. 3d 195, 434 N.E.2d 31.) The “same cause” element of the statute is satisfied when both causes are based on substantially the same facts or issues. (SJcolnick v. Martin (1964), 32 Ill. 2d 55, 203 N.E.2d 428; Palatine National Bank v. Guardian Tampa Ltd. Partnership (1985), 131 Ill. App. 3d 441, 475 N.E.2d 1045.) “The crucial inquiry is whether the two actions arise out of the same transaction or occurrence, not whether the legal theories, issues, burden of proof or relief sought materially differ between the two actions ***.” Catalano, 105 Ill. App. 3d at 198, 434 N.E.2d at 34.

While HSB sued Quantum seeking a declaratory judgment and Quantum’s suit alleges breach of contract and bad-faith failure to pay, it is clear that both suits arose out of the same occurrence, i.e., the Morris plant accident, and both suits deal with the same fundamental issue, i.e., which insurance company is responsible to pay Quantum’s claim for damages resulting from the accident. Therefore, for purposes of section 2 — 619(a)(3), both proceedings involve the same cause.

A more difficult question is presented concerning the “same parties” requirement of the statute. At the time defendants’ motions were granted, there clearly was not an action pending “between the same parties.” The trial court agreed with the defendants’ argument that because Quantum was required to bring any claims it had against HSB as compulsory counterclaims in the Federal suit, and because Quantum could also bring its claims against the property insurers in the Federal suit by invoking the court’s supplemental jurisdiction, the “same parties” requirement could be, or most likely would be, satisfied. The trial court felt that the only thing preventing the “same parties” element from being met was Quantum's delay in filing an answer in the Federal suit. In the trial court’s view, once Quantum’s answer and counterclaim were filed, all parties to the State court action would be before the Federal court.

It is clear that Quantum and HSB are parties to both actions, and Quantum’s State court claims against HSB constitute compulsory counterclaims in the Federal suit under Federal Rule 13(a). It has been held not to be an abuse of discretion to dismiss a complaint under section 2 — 619(a)(3) where the allegations in the dismissed complaint amount to compulsory counterclaims in a pending Federal action. (International Games, Inc. v. Sims (1982), 111 Ill. App. 3d 922, 444 N.E.2d 736.) In this case, there is no question that Quantum’s claims against HSB will in fact be heard in the Federal court, and the State court claim will only result in duplicative litigation. Indeed, a State court would be barred from hearing such a complaint if it were not brought as a counterclaim in the Federal action. (McDonald’s Corp. v. Levine (1982), 108 Ill. App. 3d 732, 439 N.E.2d 475 (failure to file compulsory counterclaim bars litigation of issue in State court under doctrine of res judicata).) Therefore, Quantum’s State court claims against HSB were properly dismissed.

However, we find no authority for the proposition that Quantum’s State court claims against the property insurers were properly dismissed simply because Quantum could have included those claims in its Federal counterclaim. In fact, the case law seems to indicate that a contrary result is required.

In A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 419 N.E.2d 23, Swift filed a breach of contract action in Iowa. On the same day, Staley filed an action for breach of the same contract in Illinois. The trial court dismissed the Illinois action pursuant to section 48(1)(c) of the Civil Practice Act (now section 2 — 619(a)(3)). The appellate court reversed the dismissal, and our supreme court affirmed that portion of the appellate decision. The court pointed out that an important factor in its decision to reinstate Staley’s claim was that dismissal of the Illinois action would force Staley to proceed by counterclaim in the Iowa action. Noting that it appeared that the Iowa rules of court did not require such a counterclaim, the court held that the policy of avoiding duplicative litigation did not require that Illinois create a de facto compulsory counterclaim rule for Iowa courts. A.E. Staley, 84 Ill. 2d at 253, 419 N.E.2d at 27.

Similarly here, dismissal of Quantum’s State court claim against the property insurers forces Quantum to assert those claims by way of a third-party complaint in the Federal action. Unlike Quantum’s claims against HSB, the claims against the property insurers are not compulsory under the Federal rules. Following the court in Staley, we find it imprudent to create a de facto compulsory third-party claim rule for the Federal courts. Moreover, if and when Quantum does attempt to bring its claims against the property insurers in the Federal action, there is no guarantee that the Federal court will assume jurisdiction over those claims. It is within the discretion of the Federal district court to decline to exercise its supplemental jurisdiction. (See 28 U.S.C. §1367 (1990).) As the court stated in Staley, “the legislature did not intend ‘that [section 2 — 619(a)(3)] should be made so dependent on either the possible actions of a defendant or the laws of some other jurisdiction.’ ” (A.E. Staley, 84 Ill. 2d at 254, 419 N.E.2d at 28, quoting Continental Grain Co. v. FMC Corp. (1975), 27 Ill. App. 3d 819, 824, 327 N.E.2d 371.) Therefore, we find that the trial court abused its discretion in dismissing Quantum’s claims against the property insurers because: (1) the property insurers were not parties to the Federal action; (2) Quantum’s claims against them are not compulsory in the Federal courts; and (3) the Federal court’s jurisdiction over those claims is discretionary.

This does not mean, however, that both suits must be tried simultaneously. It was within the discretion of the trial court to stay the State court action pursuant to section 2 — 619(a)(3) pending the resolution of the Federal court action. (See People ex rel. Department of Public Aid v. Santos (1982), 92 Ill. 2d 120, 440 N.E.2d 876.) Our supreme court has articulated several factors to consider in deciding whether a stay is appropriate: comity; the prevention of multiplicity, vexation, and harassment; the likelihood of obtaining complete relief in a foreign jurisdiction; and the res judicata effect of a foreign judgment in the local forum. Santos, 92 Ill. 2d at 130, 440 N.E.2d at 881; A.E. Staley, 84 Ill. 2d at 254, 419 N.E.2d at 27-28.

Under the circumstances of this case, it appears that several of these factors may weigh in favor of staying the State court proceeding. For example, all parties to the State suit may in fact be made parties to the Federal action and the controversy may be totally resolved in that forum. A stay would thus prevent unnecessary duplicative litigation and waste of judicial resources. A stay would also decrease the risk of inconsistent judgments in the two forums.

The parties have raised another point which we believe weighs in favor of staying the State court action. In their briefs before this court, all parties have relied on the proposition that State courts should not speculate as to a Federal court’s decision in jurisdictional matters. (International Games, Inc. v. Sims (1982), 111 Ill. App. 3d 922, 444 N.E.2d 736; Palatine National Bank v. Guardian Tampa Ltd. Partnership (1985), 131 Ill. App. 3d 441, 475 N.E.2d 1045.) Quantum argues that in dismissing its State court action the trial court inappropriately speculated that the Federal court would exercise supplemental jurisdiction over its claims against the property insurers. Defendants argue that denial of their motions to dismiss would have required the trial court to inappropriately speculate that the Federal court would decline to exercise supplemental jurisdiction over those claims. Perhaps the best way to avoid any speculation would be to stay the State court action pending the outcome of the Federal case.

In summary, we affirm the dismissal of Quantum’s State court claims against HSB because there is a pending Federal suit between these parties for the same cause and because any claim Quantum has against HSB must be brought as a compulsory counterclaim in the Federal action. We reverse the dismissal of Quantum’s claims against the property insurers because they were not parties to the Federal suit at the time of dismissal. The fact that Quantum could assert these claims in the Federal action, and the Federal court may exercise jurisdiction over them is, in our opinion, too tenuous and speculative and provides an insufficient basis upon which to grant a dismissal under section 2 — 619(a)(3). On remand, the trial court should determine if a stay is appropriate at this juncture.

For the reasons stated above, the order of the circuit court is affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

McCUSKEY, P.J., and BARRY, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY GILSON, Defendant-Appellant.
    Third District
    Nos. 3 — 92—0901 through 3 — 92—0903 cons.
    Opinion filed July 7, 1993.
    Rehearing denied August 9, 1993.
    Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LYTTON

delivered the opinion of the court:

The defendant, Johnny Gilson, appeals from the denial of his motion to reconsider his sentence. The defendant contends that the cause must be remanded for further post-trial proceedings because defense counsel failed to file a certificate with the trial court as required by Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)). We disagree and dismiss.

The record shows that the defendant pled guilty to three counts of burglary, one count of felony theft, and two counts of misdemeanor theft. The trial court admonished the defendant and determined that the plea was voluntary. The defendant was then sentenced to concurrent terms of imprisonment of five years for each of the burglaries, two years for the felony theft, and 364 days for the misdemeanor thefts. Thereafter, defense counsel filed a motion to reconsider the sentences which the trial court denied.

Rule 604(d) requires that before an appeal may be taken from a judgment entered on a guilty plea:

“[t]he defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the sentence or the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.” (Emphasis added.) Official Reports Advance Sheet No. 8 (April 15, 1992), R. 604(d), eff. August 1, 1992.

We note that the above rule had been amended effective August 1, 1992, to include the requirement that defense counsel file a certificate which indicates that, he has consulted with the defendant concerning his contentions of error in the sentence or the guilty plea hearing. Prior to the amendment, the rule was silent as to sentence errors.

Recently, this court stated in People v. Hoskins (1992), 237 Ill. App. 3d 897, 605 N.E.2d 117, that Rule 604(d) must be strictly followed and that the failure to comply with the Rule results in a dismissal of the action. (See also People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218.) Hoskins also stated that under the amended rule a certificate was necessary to preserve sentencing issues.

We note that while the Hoskins court addressed the sentencing issue presented to it even though no sentencing certificate had been filed, it did so only because at the time the defendant was sentenced the amended rule was not yet in effect. We are not faced with that problem in the case at hand since the defendant here was sentenced after the amended rule went into effect. As such, we find that defense counsel was subject to the requirements of the amended rule.

Here, the parties agree that defense counsel did not file a certificate as required by Rule 604(d). Therefore, in accordance with the strict compliance rules set forth in Wilk and Hoskins, we dismiss the defendant’s appeal.

Dismissed.

McCUSKEY, P.J., and STOUDER, J., concur.