author: JUSTICE INGLIS JUSTICE NASH,

text:
    W.E. MUNDY LANDSCAPING & GARDEN CENTER, INC., Plaintiff-Appellee, v. JOSEPH HISH, Defendant-Appellant.
    Second District
    No. 2—88—1265
    Opinion filed August 16, 1989.
    NASH, J., specially concurring.
    Kenneth L. Kaergard, of Shearer, Blood, Agrella & Boose, of St. Charles, for appellant.
    Martin L. Cassell, of Goldsmith, Thelin, Schiller & Dickson, of Aurora, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Joseph Hish, appeals from a judgment entered in favor of plaintiff, W.E. Mundy Landscaping and Garden Center, Incorporated, in the amount of $3,737.50. Defendant contends on appeal that the trial court’s decision was against the manifest weight of the evidence. We affirm.

On August 30, 1988, plaintiff filed a complaint alleging that defendant breached an oral contract for landscaping services. The complaint alleged that defendant had requested certain services, that plaintiff had provided those services, and that defendant had refused to pay for the services. Plaintiff alleged that defendant owed $4,007.50.

The case proceeded to a bench trial, and judgment was entered in favor of plaintiff in the amount of $3,737.50. Apparently, there was no court reporter present during the trial; therefore, no verbatim transcript of the trial exists. After filing his notice of appeal, defendant prepared a proposed report of proceedings in accordance with Supreme Court Rule 323(c) (107 Ill. 2d R. 323(c)). Thereafter, plaintiff filed its own proposed report of proceedings. Although there is nothing in the record to indicate what happened after the filing of these proposed reports, defendant’s brief informs us that the trial judge “would not certify a Report of Proceedings.” The parties have not filed a stipulated report of proceedings or an agreed statement of facts. (See 107 Ill. 2d Rules 323(c), (d).) Defendant proceeded with his appeal notwithstanding the lack of a report of proceedings. Defendant raises no issue on appeal concerning the trial court’s refusal to certify a report, and we can find nothing in the record to indicate that the trial court improperly refused to make the certification.

On appeal, defendant asks this court to review the trial court’s ruling in favor of plaintiff and to determine if the evidence supported the decision of the trial court. As noted above, there was no verbatim transcript of the trial. The Illinois Supreme Court rules set forth the procedure to be followed in this situation. Supreme Court Rules 323(c) and (d) provide:

“(c) Procedure If No Verbatim Transcript Is Available. If no verbatim transcript of the evidence of proceedings is obtainable the appellant may prepare a proposed report of proceedings from the best available sources, including recollection. It shall be served within 14 days after the notice of appeal is filed. Within 28 days after the notice of appeal is filed, any other party may serve proposed amendments or his proposed report of proceedings. Within 7 days thereafter, the appellant shall, upon notice, present the proposed report or reports and any proposed amendments to the trial court for settlement and approval. The court, holding hearings if necessary, shall promptly settle, certify, and order filed an accurate report of proceedings. Absent stipulation, only the report of proceedings so certified shall be included in the record on appeal.
(d) Agreed Statement of Facts. The parties by written stipulation may agree upon a statement of facts material to the controversy and file it without certification in lieu of and within the time for filing a report of proceedings.” 107 Ill. 2d Rules 323(c), (d).

As noted above, the trial court would not certify a report of proceedings, and the parties did not stipulate to a report of proceedings or a statement of facts. The record does contain the parties’ proposed reports. However, these reports are very sketchy and conflict on at least one evidentiary issue: whether there was testimony that the architect’s charges were fair and reasonable. We conclude that the record is insufficient to support defendant’s contention that the trial court’s ruling was not supported by the evidence.

It is patent that, without an opportunity to actually review the evidence, a reviewing court cannot determine if the evidence supports the trial court’s judgment. The proposed reports included in the common-law record are neither stipulated to nor certified, and, as such, they are insufficient for review of the evidentiary issue raised on appeal. A properly authenticated report of proceedings is essential to the presentation of a record of sufficient completeness to permit a challenge to the evidence on the issues raised at trial. (Ill. Ann. Stat., ch. 110A, par. 323(c), Historical and Practice Notes, at 387 (Smith-Hurd 1985).) It is appellant’s duty to present a complete record on appeal so that the reviewing court is fully informed regarding the issues to be resolved. (Brandel Realty Co. v. Olson (1987), 159 Ill. App. 3d 230, 233; Davis v. Allstate Insurance Co. (1986), 147 Ill. App. 3d 581, 584.) Where the determination on appeal of whether a particular decision of the trial court constituted error depends on an examination of the evidence, and the record on appeal does not show or purport to show all pertinent evidence on which the decision is based, the reviewing court will presume that the evidence omitted supports the decision of the trial court. Lakemoor v. First Bank (1985), 136 Ill. App. 3d 35, 42-43.

For the foregoing reason, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

DUNN, J., concurs.

JUSTICE NASH,

specially concurring:

I agree with the result but not with all that is said, and left unsaid, in the opinion.

There is a presumption of correctness of a trial court’s judgment, as noted by the opinion, and I agree it should be applied in this instance as defendant has failed to provide this court with a sufficient record for review.

As there was no court reporter present at trial to make a verbatim transcript of the evidentiary proceedings, each party timely filed in the trial court a proposed bystander’s report of proceedings for certification by the judge pursuant to Supreme Court Rule 323(c) (107 Ill. 2d R. 323(c)). Defendant advises us in his brief that the judge would not certify a report of proceedings. Presumably, there again was no court reporter present, and neither the record nor advice of counsel in their briefs informs us of the basis for the trial judge’s refusal to comply with Rule 323(c).

In pertinent part, the rule provides that “the court, holding hearings if necessary, shall promptly settle, certify, and order filed an accurate report of proceedings.” (107 Ill. 2d R. 323(c).) The plain terms of the rule do not appear to give the judge discretion to avoid its precepts; to so hold would leave in the hands of the trial court the key to review of its judgments in such cases. As this court noted in an analogous context, “[w]e do not believe that the discretion vested in a trial court permits it to convert a presumption of correctness into an impenetrable cloak of infallibility. We are reluctant to deny review where a trial court by its own order has created an inadequate record.” (Schulz v. Rockwell Manufacturing Co. (1982), 108 Ill. App. 3d 113, 120, 438 N.E.2d 1230.) In Rockwell, the reviewing court reached the merits of the case by considering other matters in the record where the trial court had effectively precluded preparation of a bystander’s report by refusing to issue subpoenas and grant an evidentiary hearing for that purpose.

In the present case we are offered two versions of the proceedings, neither of which has been certified as correct and which the trial court declined to settle. We have no means to do so here and cannot chose between the versions of the evidence offered by the parties. Certification of the report of proceedings is not jurisdictional but designed to assure the accuracy of the record. Where no inaccuracy in an uncertified report of proceedings is alleged, this court may amend the record and treat it as properly certified (Ray v. Winter (1977), 67 Ill. 2d 296, 367 N.E.2d 678), but that is not the case here where conflicting versions are submitted.

Defendant’s remedy when the trial court declined to settle and certify a report of proceedings was in mandamus. (Urmoneit v. Purves (1975), 33 Ill. App. 3d 939, 338 N.E.2d 423.) Defendant might also have sought a supervisory order from our supreme court directing the trial judge to comply with its Rule 323(c). He did not seek such relief in this case, and we can then here only presume the correctness of the judgment of the trial court rather than review it.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    AUBREY WOODSON, Indiv. and as Father and Next Friend of Kyle Woodson, a Minor, Plaintiffs-Appellants, v. NORTH CHICAGO COMMUNITY SCHOOL DISTRICT NO. 64 et al., Defendants-Appellees.
    Second District
    No. 2—88—1229
    Opinion filed August 14, 1989.
    Rehearing denied September 20, 1989.

      Lewis D. Clarke, Jr., Mark B. Peavey, and Douglas E. Henderson, all of Snyder, Clarke, Dalziel & Johnson, of Waukegan, for appellants.
    William P. Anderson, of Fuqua, Winter, Stiles & Anderson, Ltd., of Waukegan, for appellees.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiffs, Aubrey and Kyle Woodson, appeal from an order of the circuit court dismissing their second amended complaint against defendants, the North Chicago Community School District and the North Chicago Board of Education. Plaintiffs raise one issue on appeal: whether the trial court erred by dismissing the second amended complaint for failure to state a cause of action.

Aubrey filed a complaint against defendants in his own behalf and on behalf of his nine-year-old son Kyle. The complaint alleged that, during a physical education class in the gymnasium of the Katzenmaier school, Kyle tripped over a hurdle and injured his knee while running a relay race. The complaint also alleged that defendants had a duty to provide “appropriate equipment, safety padding and protective devices” to protect Kyle from injuries. Defendants allegedly breached this duty by failing to supply an adequately protected or padded running surface; failing to supply padding, mats or other absorbent material to cushion the hard gymnasium floor; failing to provide “personal protective equipment such as knee pads” to prevent injury in the event of a fall on the hard floor; and failing to supply other safety equipment or floor padding.

Defendants filed a motion to strike and dismiss the complaint on the basis that it failed to state a cause of action because defendants have immunity from such suits and because, as a matter of law, it is not negligent to conduct running and jumping games on hard gymnasium floors. The court dismissed the complaint, finding that, under Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, and Lynch v. Board of Education (1980), 82 Ill. 2d 415, 412 N.E.2d 447, to state a cause of action against a school board for acts of ordinary negligence, a plaintiff must allege that either the school board or district supplied defective equipment, or that it failed to provide effective equipment to guard against injuries that are common and severe. Since plaintiffs did not allege that Kyle’s injury was a common type of injury which would have been prevented by the equipment specified by plaintiffs, the complaint failed to state a cause of action.

In their amended complaint, plaintiffs added that Kyle sustained severe and permanent injuries to his knee and that these injuries were a foreseeable and predictable result of a fall during a hurdle race and were the common and severe result of tripping over a hurdle during a race. In their motion to dismiss the amended complaint, defendants requested that the court strike the allegations that Kyle’s injuries were “common and severe” since those allegations stated conclusions of law and fact and argued that the amended complaint failed to allege any facts showing that the injury was “common and severe.” Defendants also argued that the district and board were immune from ordinary negligence suits and that conducting a hurdle race on a hard wooden floor does not constitute negligence. The court dismissed the amended complaint and granted plaintiffs leave to amend the amended complaint.

In their second amended complaint, plaintiffs elaborated on the nature of Kyle’s injury and further alleged that the injury was “of the type which might be commonly expected to be the result of the failure of the defendants to provide the appropriate and necessary safety equipment.” Defendants again filed a motion to dismiss, arguing that the second amended complaint suffered from the same defects as the amended complaint. In its order dismissing the second amended complaint with prejudice, the court found that the complaint failed to allege specific facts tending to show that the injury was “common, severe, and permanent.” The court struck these allegations for being conclusions of law and fact. The court then found that in accordance with the order dismissing the first complaint, defendants are immune from liability for negligence under section 24 — 24 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 24) and the Local Government and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 1 — 101 et seq.). The court denied plaintiffs’ motion to further amend their complaint because the court found that plaintiffs could state no facts on which a cause of action could be based.

Plaintiffs advance three arguments to support their contention on appeal that the court erred by dismissing the complaint: (1) the second amended complaint states a cause of action against defendants for ordinary negligence based on their duty to provide adequate safety equipment to prevent foreseeable injury to students; (2) the second amended complaint complies with the rules for pleadings; and (3) plaintiffs’ action is not barred by local governmental or school immunity.

When reviewing the dismissal of a complaint for failure to state a cause of action, the reviewing court must determine the legal sufficiency of the complaint. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 516, 513 N.E.2d 387, 391.) Although all well-pleaded facts are to be regarded as true (Kirk, 117 Ill. 2d at 514, 513 N.E.2d at 390), if the complaint does not allege facts necessary to state a cause of action, the deficiency may not be cured by liberal construction (Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 287, 527 N.E.2d 303, 305). The complaint must sufficiently set out every essential fact to be proved for a plaintiff to be entitled to judgment on the pleadings. In re Beatty (1987), 118 Ill. 2d 489, 499, 517 N.E.2d 1065,1069.

For a complaint to state a cause of action for negligence, the allegations must establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury which is the proximate result of that breach. (Teter v. Clemens (1986), 112 Ill. 2d 252, 256, 492 N.E.2d 1340, 1342.) The mere allegation of a duty is insufficient; the complaint must allege facts from which the law will raise a duty, and the existence of that duty is a question of law to be determined by the trial court. (Duncan v. Rzonca (1985), 133 Ill. App. 3d 184, 190, 478 N.E.2d 603, 606.) A motion to dismiss a complaint for failure to state a cause of action should only be affirmed where no set of facts can be proved under the pleadings which would entitle the plaintiff to relief. (Duncan, 133 Ill. App. 3d at 191, 478 N.E.2d at 607.) A reviewing court may affirm a dismissal of a complaint on any grounds which are supported by the record regardless of whether the trial court relied on those grounds or whether the trial court’s reasoning was correct. Beckman, 123 Ill. 2d at 286, 527 N.E.2d at 305.

A plaintiff is required to plead ultimate facts to support the cause of action. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 509, 520 N.E.2d 37, 42.) In Illinois, fact pleading, as opposed to notice pleading, is required. (Teter, 112 Ill. 2d at 256, 492 N.E.2d at 1342.) The drafter of a complaint must strike a balance between pleading too little or too much factual detail; however, distinguishing between conclusions, ultimate facts, and evidentiary facts is difficult because the classification of an allegation depends on the context of a particular case. (Sider v. Outboard Marine Corp. (1987), 160 Ill. App. 3d 290, 299, 513 N.E.2d 449, 455.) The Illinois Supreme Court has stated:

“[I]f a motion to dismiss admits only facts well pleaded and not conclusions, then, in considering the motion, if after deleting the conclusions that are pleaded there are not sufficient allegations of fact which state a cause of action against the defendant, the motion must be granted regardless of how many conclusions the count may contain and regardless of whether or not they inform the defendant in a general way of the nature of the claim against him.” Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426, 430 N.E.2d 976, 985.

Under the rule established in Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705, teachers, school boards and school districts are liable only for willful and wanton misconduct, not for ordinary negligence. (Kobylanski, 63 Ill. 2d at 173, 347 N.E.2d at 709.) Our supreme court carved out an exception to this rule in Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, holding that school districts have the duty of ordinary care to insure that athletic equipment provided for students is fit for the purpose intended. (Gerrity, 71 Ill. 2d at 52, 373 N.E.2d at 1326.) A school district may also be held liable for failing to provide necessary equipment. (Lynch v. Board of Education (1980), 82 Ill. 2d 415, 434, 412 N.E.2d 447, 460.) In Lynch, the court held that where students are engaged in school activities, a school district has an affirmative duty to furnish equipment to prevent serious injuries. The court further stated:

“At the least, a school district should furnish helmets and face guards for a game such as football, where head injuries are common and severe.” (Lynch, 82 Ill. 2d at 434-35, 412 N.E.2d at 459.)

In essence, a school board or district has an affirmative duty to provide equipment fit for the purpose of preventing serious injuries which commonly occur in a particular sport which students engage in as part of a school-related activity.

To allege sufficiently a breach of the duty of ordinary care, plaintiffs were required to state specific facts tending to show that Kyle was engaged in a school-related activity, that the injury he suffered is one which commonly occurs as a result of that activity, that his injury was severe, and that the equipment defendants failed to supply would have been fit for the purpose of preventing the injury.

Plaintiffs argue that their second amended complaint stated a cause of action because it alleged that during a regularly scheduled gym class, Kyle tripped over a hurdle and “sustained common, severe and permanent injuries to his right knee.” They further alleged that these injuries were the “foreseeable and predictable result of a fall during a hurdle race being run in a gymnasium and were the common and severe result of tripping over a hurdle” and that these injuries are of the type which “might commonly be expected to result” from defendants’ failure to provide appropriate safety equipment.

Plaintiffs’ allegations that the injuries were “foreseeable and predictable” and were the “common and severe result of tripping over a hurdle” are mere conclusions. Plaintiffs have alleged no facts tending to show that the injuries were in fact foreseeable. For example, plaintiffs needed to allege facts establishing the height of the hurdle because it is relevant to the foreseeability of the injuries; if the “hurdle” was six inches off the ground, the foreseeability of harm would be much less than if the hurdle were 3V2 feet high. Similarly, plaintiffs did not allege any facts establishing the number of hurdles Kyle was required to jump over; how many, if any, he jumped over; how far apart the hurdles were spaced; or whether the race required the students to perform another maneuver, such as running through tires, before encountering another hurdle. Neither did plaintiffs allege that this was a training session in which tripping on the hurdle would be expected, nor did they allege that Kyle was too short to surmount a hurdle safely.

Plaintiffs also failed to allege any facts to support the conclusion that a fractured kneecap is a common injury resulting from jumping over hurdles. In Lynch, the court described head injuries resulting from playing tackle football as common and severe. An allegation that the injury sustained was common and severe may be sufficient for a head injury sustained in a tackle football game because tackle football is a bodily contact sport where the player expects to be hit hard and knocked to the ground. Case law suggests that tackle football is an inherently dangerous sport (see Gerrity, 71 Ill. 2d 47, 373 N.E.2d 1323; Lynch, 82 Ill. 2d 415, 412 N.E.2d 447), but no authority exists for concluding that a hurdle race is inherently dangerous. Consequently, the bare statement that fractured kneecaps commonly result from jumping over hurdles is insufficient. The fact that Kyle fell and injured his knee while trying to jump a hurdle does not lead to the conclusion that this injury is one which commonly occurs with this activity. Plaintiffs did not allege that several children had previously tripped over hurdles and injured their knees or that padding and mats are commonly used in hurdling. Without such allegations of specific facts, the allegations that the injuries were foreseeable and common are only conclusions of law and fact which are insufficient to withstand a motion to dismiss. We therefore conclude that the trial court properly dismissed the second amended complaint.

The judgment of the circuit court is affirmed.

Affirmed.

DUNN and INGLIS, JJ., concur.


author: JUSTICE CAMPBELL

text:
    BALL CORPORATION, Plaintiff-Appellee, v. BOHLIN BUILDING CORPORATION et al., Defendants (Boice Roofing Company, Defendant-Appellant).
    First District (1st Division)
    No. 1—88—0387
    Opinion filed June 5, 1989.
    Rehearing denied September 11, 1989.

      Baker & McKenzie, of Chicago (Francis D. Morrissey, Charles B. Lewis, and Lisa Sopata, of counsel), for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Jeffrey J. Asperger, James R. Swinehart, and Jeanette M. Bourey, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

This appeal and cross-appeal arise from damages incurred by plaintiff, Ball Corporation, to portions of its warehouse roof as the result of a windstorm on April 5, 1979. On March 18, 1982, Ball filed a complaint against defendants, Bohlin Building Corporation, general contractor for the 1973 and 1977 roof additions to Ball’s warehouse; Dexter-Mook Roofing Sheet Metal Works, Inc., the roofing subcontractor for the 1977 addition; and Boice Roofing Company, the roofing subcontractor for the 1974 addition, alleging that each defendant had been careless and negligent. Subsequently, on March 12, 1986, Ball filed an amended complaint, adding breach of contract counts predicated on a third-party beneficiary theory against Boice and DexterMook and breach of contract and breach of implied warranty counts against Bohlin. The trial court denied motions for summary judgment filed by Bohlin, Boice and Dexter-Mook. Following a jury trial, the trial court directed a verdict in favor of defendants on the negligence counts and the jury found for Ball and against all defendants on the contract counts, assessing damages in the amount of $104,913.65. Bohlin was found liable for 20% of the damages, Boice for 50% and Dexter-Mook for 30%. Boice’s post-trial motions were denied.

On appeal, Boice, sole appellant, contends that the trial court erred in finding that Ball was a third-party beneficiary to the contract between Bohlin, general contractor, and Boice, subcontractor. On cross-appeal, Ball contends that the trial court erred in directing a verdict in favor of Boice on the negligence count. For the following reasons, we reverse the trial court’s judgment as to the contract count and affirm the trial court’s judgment entering a directed verdict in Boice’s favor as to the negligence count.

With respect to the contract count, Ball contends that it is entitled to damages as a third-party beneficiary to the contract between Bohlin and Boice. In response, Boice argues that the clear and unambiguous terms of the Ball-Bohlin contract, expressly incorporated into the Bohlin-Boice contract, state that Ball has no contractual relationship with any subcontractor, including Boice.

Pursuant to Illinois law, there is a strong presumption that parties to a contract intend that the contract’s provisions apply to only them and not to third parties. In order to overcome that presumption, the implication that the contract applies to third parties must be so strong as to be practically an express declaration. (Alaniz v. Schal Associates (1988), 175 Ill. App. 3d 310, 529 N.E.2d 832.) It is the intention of the parties as evidenced by the contract that determines whether another is a third-party beneficiary. It is not enough that the beneficiary is an incidental beneficiary, i.e., that the third party will reap incidental benefits from the contract. Only a direct beneficiary has a right against the promisor or promisee. (People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1980), 78 Ill. 2d 381, 400 N.E.2d 918.) A third party is a direct rather than an incidental beneficiary when the contracting parties have manifested in their contract an intention to confer a benefit upon the third party. (Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 421 N.E.2d 182; Santucci Construction Co. v. Baxter & Woodman, Inc. (1986), 151 Ill. App. 3d 547, 502 N.E.2d 1134.) Liability to a third-party must affirmatively appear from the contract’s language and from the circumstances surrounding the parties at the time of its execution, and cannot be expanded or enlarged simply because the situation and circumstances justify or demand further or other liability. Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 178 N.E.2d 498; Midwest Concrete Products Co. v. La Salle National Bank (1981), 94 Ill. App. 3d 394, 418 N.E.2d 988.

In the present case, the contract between Ball, the owner, and Bohlin, the general contractor, included the following specifications drafted by Ball:

“1-5 CONTRACTOR
Only one Contractor will be recognized as the other party in any specific contract, and this Contractor shall be held responsible as prime Contractor for the proper fittings of all work and for the coordination of all his tradesmen, subcontractors, materialmen, or suppliers engaged upon his part of the work. He shall also be fully and solely responsible to the Engineer for the acts or omissions of his men, his subcontractors, and of persons either directly or indirectly employed by his subcontractors or supplying materials or supplies to him or his subcontractors.
1-6 SUBCONTRACTORS
All portions of the work that the Contractor’s organization has not been accustomed to perform or that the Owner may approve shall be executed under separate subcontracts let by the Contractor.
The Contractor, being fully responsible for the work shall have full directing authority over the execution of the subcontracts under his general contract.
The Contractor shall notify the Owner in writing, the name of subcontractors and suppliers proposed for parts of his work not performed by himself, and for such other parts as the Owner may request. The Owner reserves the right of approval of all subcontractors.
Nothing contained in the contract documents shall create any contractual relation between any subcontractor and the Owner.
The subcontractor, however, under specific requirements of his contract with a prime contractor, shall be responsible through the contractor with whom he has a contract for his work, and wherever required by the specifications shall guarantee his work for a specified period of time.”

The above-stated specifications were, inter alia, expressly incorporated into the contract between Bohlin and Boice, the subcontractor. Accordingly, the Bohlin-Boice contract specifically provided that there was to be no contractual relationship between Ball, the owner, and Boice, the subcontractor. Rather, Boice’s sole contractual relationship was to be with Bohlin.

As previously stated, it is well established that in determining third-party beneficiary status, the contract is controlling. (Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 178 N.E.2d 498; People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1980), 78 Ill. 2d 381, 400 N.E.2d 918; Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 421 N.E.2d 182.) In our view, the intent in specification 1 — 6 is unequivocal that Ball intended that all contracts between Bohlin and its subcontractors impose obligations and benefits solely between those parties. Further, other paragraphs of specification 1 — 6 also support that conclusion, i.e., all of the contractor’s work not performed by its organization shall be executed under separate subcontracts let by the contractor; the contractor is fully responsible for the subcontractor’s work and has “full, directing” authority over the execution of the subcontracts; and the subcontractor is responsible through the contractor for his work. Moreover, all of these provisions were drafted by Ball and any ambiguities should be construed against Ball. Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314.

Furthermore, contrary to Ball’s position that Bohlin and Boice acted for its direct benefit, thereby making Ball a direct beneficiary of the Bohlin-Boice contract, we find that Bohlin and Boice acted entirely in their own self-interest and Ball was merely an incidental beneficiary. Bohlin contracted with Boice for materials and labor that it needed to fulfill its obligations under the general contract. Boice agreed to supply the material and the labor with the expectations of making a profit. Any benefit to Ball was incidental and, as such, does not confer third-party beneficiary status. To hold otherwise under these facts would allow Ball to have a contractual relationship with Boice when it would be economically beneficial to Ball and to disavow a contractual relationship in the event Boice, as subcontractor, is not paid by Bohlin. In addition, if Ball were granted third-party beneficiary status in a situation where an express contract provision indicates a contrary intent of the parties, it is difficult to imagine a situation where the owner of property would not be the third-party beneficiary of a contract between the general contractor and the subcontractor. Logically, an owner will always benefit from any work done on his property. However, in circumstances such as those at bar, that benefit is merely incidental to the contract between the general contractor and the subcontractor.

Both Ball and Boice cite to extensive authority in support of their positions. However, none of the cases cited contains the fact situation at bar, where the specifications in the contract between Ball and Bohlin, incorporated by reference into the contract between Bohlin and Boice, clearly state that the parties intend that no contractual relationship shall exist between Ball and Boice, as subcontractor. Accordingly, in light of the clear and unambiguous contractual agreements between the parties to prevent the creation of contractual rights between Ball and Boice, we conclude that the trial court erred in denying Boice’s motion for a directed verdict in its favor as to count VI, the breach of contract count.

On cross-appeal, Ball contends that the trial court erred in directing a verdict in favor of Boice on the negligence count. The established standard for granting a motion for a directed verdict is whether, considering the evidence most strongly against the movant, no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Ball contends that it presented ample evidence to support its theory that Boice had acted negligently by improperly and inadequately fastening the roofing materials to the deck and the trial court should have denied Boice’s motion for a directed verdict. In reliance on Ferentchak v. Village of Frankfort (1985), 105 Ill. 2d 474, 475 N.E.2d 822, Boice counters that, as a subcontractor, its scope of duty was limited and defined by the terms of its contract with Bohlin, which it had fully performed.

In Ferentchak, plaintiff homeowners sought recovery from the civil engineer, land developers and the village for damage to their homes from flooding due to low foundation grade levels. It was undisputed that the foundation grade levels were not in violation of the village’s minimum height regulation. The engineer was hired by the land developer to design and to observe the construction of the subdivision’s surface water drainage system. The contract did not require the engineer to set the foundation grade levels for each lot. When the engineer completed the design, he submitted the plans to the developer who, in turn, submitted them to the village for approval, which was given.

When the flooding occurred, plaintiffs filed a negligence action against the village, the engineer and the initial and subsequent land developers. At trial, plaintiffs’ expert testified that it was the engineer’s professional obligation to incorporate foundation grade levels on the plat. In response, the engineer stated that he purposefully had omitted that information because, inter alia, his contract did not require him to include it, and his responsibility to the plaintiffs was limited to his contractual obligations. The jury found the engineer liable and the appellate court affirmed.

On appeal to the Illinois Supreme Court, that court found that the engineer’s reliance on his contract, which did not require that he set foundation grade levels, was not misplaced because the contract defined the limitations of his duty. Moreover, even though there were no specified foundation grade levels, the land developer had accepted the engineer’s work and had filed it with the village, which also gave its approval. With respect to the argument raised at trial that, regardless of what the contract stated, the engineer had not exercised the degree of care and skill ordinarily required of other civil engineers in the community, the supreme court held that the degree of skill and care required of the engineer in this case was defined by the contract and the community standard was irrelevant. The supreme court concluded that, absent an obligation in the contract to specify foundation grade levels, the engineer could not be found liable in negligence for his failure to do so and his motion for a directed verdict should have been granted.

In our view, the present case is factually similar to Ferentchak. Both Ball’s engineer and its expert witness testified that the roofing materials put down by Boice tore away from the deck during the windstorm as the result of Boice’s improper application of adhesive. However, it is undisputed that the contract entered into between Bohlin and Boice did not specify what type of adhesive was to be used or how the adhesive was to be applied. Further, Ball’s engineer testified that the work done by Boice had complied with the plans and specifications which had been incorporated into its contract. Similarly, Ball’s roofing expert testified that the plans and specifications had nothing to do with the failure of the roof. In addition, not only did Ball approve Boice’s work; Johns-Mansville, manufacturer of the roofing materials, issued a bond to Ball, guaranteeing that the work had been done in accordance with its specifications, and the City had approved the plans and specifications prepared by Ball and followed by Boice.

Pursuant to Ferentchak, Boice’s contractual duties were defined by and limited to the terms of the contract, regardless of whether the degree and skill exercised by Boice was the same as that ordinarily exercised by roofing subcontractors in the community. Because the evidence indicates that Boice had complied with the terms of the contract, the manufacturer of the roofing materials had issued a bond indicating compliance with its specifications, and there was no evidence presented to the contrary, we find that Boice did not breach its duty as defined by the contract. Accordingly, in the absence of sufficient evidence to establish negligence, we conclude that the trial court properly granted Boice’s motion for a directed verdict on the negligence count.

As a further note, the testimony of Ball’s expert that the manufacturer’s specifications for application of its product and the City building code requirements are impliedly made a part of the original contract between Bohlin and Boice also does not establish a duty that Boice use a particular type of adhesive process. As stated, both the manufacturer and the City approved the plans and the work. Once the plans were approved by the City, it would not be incumbent upon Boice to assume there were additional requirements, not stated therein, that had to be met. (See Ferentchak v. Village of Frankfort (1985), 105 Ill. 2d 474, 475 N.E.2d 822.) Our conclusion that there was insufficient evidence to establish Boice’s negligence obviates the need to address the issue concerning the economic loss doctrine.

As a final point, Ball further claims that the trial court erred in stating that part of its reason for directing a verdict on the negligence count was that the contract and tort counts were inconsistent. Boice does not respond to this argument. In light of the fact that the directed verdict on the negligence count in favor of Boice was properly entered on the ground that no breach of duty had been established, this issue is moot.

For the aforementioned reasons, we reverse the trial court’s judgment as to the contract count; affirm the trial court’s judgment entering a directed verdict in favor of Boice as to the negligence count; and remand the cause for further proceedings as may be necessary.

Reversed in part; affirmed in part; and remanded.

MANNING, P.J., and BUCKLEY, J., concur.


author: JUSTICE WHITE

text:
    JACK HEALY et al., Plaintiffs-Appellants, v. OWENS-CORNING FIBERGLAS et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—88—1464
    Opinion filed June 21, 1989.
    Rehearing denied September 11, 1989.

      Terrence M. Johnson, of Chicago (Colleen M. Hickey and Thomas E. Brennan, of counsel), for appellants.
    Williams & Montgomery, Ltd., of Chicago (Kevin J. Babb, Barry L. Kroll, and Lloyd E. Williams, Jr., of counsel), for appellee Eagle-Picher Industries, Inc.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Daniel J. Cheely, John A. Krivicich, and Kimberly Kentra Gralen, of counsel), for other appellees.
   JUSTICE WHITE

delivered the opinion of the court:

On October 24, 1983, plaintiffs John and Dolores Healy filed an action in the circuit court of Cook County in which they sought to recover damages for injuries sustained by John Healy while working with products containing asbestos and for loss of consortium. In their complaint, plaintiffs alleged that John Healy was employed by various Illinois companies to install and remove asbestos insulation and that he was exposed to asbestos products designed, processed, manufactured, sold and distributed by defendants. On April 7, 1988, the circuit court entered an order granting summary judgment to defendants. The court found that John Healy’s action was barred by the two-year personal injury statute of limitations (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 202) and that Dolores Healy’s action for consortium, being derivative of John Healy’s action for personal injuries, was also barred.

Plaintiffs appeal from the order of the circuit court granting summary judgment to defendants and from an order of the court denying plaintiffs’ motion for reconsideration. As grounds for reversal of the orders, plaintiffs argue that: (1) they filed their complaint less than six months after John Healy discovered that he was injured; (2) the balancing test enunciated in Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656, requires application of the discovery rule in asbestos litigation; (3) the circuit court’s actions deprived plaintiffs of their right to a remedy for injuries suffered; (4) defendants’ claim that John Healy does not suffer from asbestosis should estop them from asserting that plaintiffs should have known in 1978 that John Healy had asbestosis; and (5) the circuit court should have allowed plaintiffs and their daughter, Judy Healy Jennings, to testify at the hearing on the motion for reconsideration. For the reasons stated below, we reverse and remand.

FACTS

John Healy testified at his deposition that he was employed in the asbestos insulation industry on a part-time basis during the summer of 1946 and the summer of 1947. In January 1949, he began working in the industry on a full-time basis. His full-time work consisted of installation and removal of asbestos insulation. In 1973, he became aware of the hazards involved in working with products containing asbestos. He began wearing a face mask and protective clothing at work. In 1978, at the urging of his daughter, Judy Healy Jennings, he had a chest X ray taken. His daughter explained to him that he should have an X ray taken every year because he worked with products containing asbestos. He had the X ray taken because he wanted to find out whether being an asbestos worker had in fact hurt his lungs. He was told that the X ray revealed an abnormality in his lungs and he considered the possibility that the abnormality was caused by his work with asbestos. However, he was not told by anyone that there was a connection between the abnormality and his occupation. In 1979 or early 1980, he had a second chest X ray taken at Christ Hospital. Again, the X ray revealed an abnormality in his lungs and he considered the possibility that the abnormality was caused by asbestos. Again, he was not told by anyone that there was a connection between the abnormality in his lungs and his occupation.

John Healy testified that on November 14, 1981, he attended a union meeting on the hazards of asbestos. At the meeting, he was screened for asbestos-related diseases. He had a chest X ray taken and submitted to a blood test and a urine test. The results of these tests were communicated to him in a letter from Dr. Irving J. Selikoff dated January 28, 1982. In the letter, Dr. Selikoff informed him that there was some problem with the chest X ray “in that what appeared to be a significant amount of scarring was seen in the left chest.” Dr. Selikoff also told him that the pulmonary function tests results mirrored the fact that there were chest changes. But the blood and urine tests showed nothing unusual. Dr. Selikoff asked him to send all previous chest X rays for comparison. John Healy testified that he was concerned that the scarring was caused by his work with asbestos. He forwarded the previous chest X rays to Dr. Selikoff and received a letter from Dr. Selikoff dated August 22, 1983, in which Dr. Selikoff stated that he could not tell whether certain variations in the test results were “associated with any potentially deleterious health effects.”

John Healy testified further that he suffers from high blood pressure. Otherwise, he enjoyed good health prior to 1983. In April of 1983, he developed a chronic cough. Dr. Frank J. Wall, Jr., his family physician, suggested that he consult Dr. Richard H. Earle, a pulmonologist. He was examined by Dr. Earle sometime before June 29, 1983. Dr. Earle told him that he had lost 35% of his breathing capacity and that he had asbestosis. Thereafter, he consulted Dr. Anderson of the Mayo Clinic for a second opinion. John Healy testified at the first session of his deposition that Dr. Anderson confirmed that he had asbestosis. However, at the second session of his deposition he testified that he could not recall what Dr. Anderson had told him was the cause of his lung problems. Furthermore, in a letter to Dr. Wall dated June 30, 1983, Dr. Anderson indicated that he was not certain of the etiology of John Healy’s lung disease, although the disease seemed consistent with asbestos exposure.

John Healy testified that he has been a member of the asbestos workers’ union since 1952. He receives a journal which is published by the union. He glances through the journal to see the subject of the articles and he reads some of the articles. He recalled seeing some green sheets which had been inserted in the journal but he did not recall reading the green sheets.

John Healy also testified that two of his co-workers died between 1977 and 1980 and he was told that they died of asbestos-related diseases.

DISCUSSION

It is well established in Illinois that summary judgment should be granted with caution so that the right to a trial, where conflicting facts and inferences are weighed, is not usurped. Only when the pleadings, depositions and affidavits on file show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law, should a case be so decided. (Aspegren v. Howmedica, Inc. (1984), 129 Ill. App. 3d 402, 403-04, 472 N.E.2d 822; Elliott v. Chicago Title Insurance Co. (1984), 123 Ill. App. 3d 226, 231, 462 N.E.2d 640.) Moreover, the pleadings, depositions and affidavits on file must be construed most strongly against the moving party and most liberally in favor of the party opposing the motion for summary judgment. (United Investors, Inc. v. Tsotsos (1985), 132 Ill. App. 3d 175, 180, 477 N.E.2d 40.) The right of the moving party to summary judgment must be free from doubt and determinable solely as a question of law. (Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1979), 74 Ill. App. 3d 778, 794, 392 N.E.2d 1352, aff’d (1981), 85 Ill. 2d 161.) In the instant case, we believe that genuine issues of material fact existed as to when plaintiffs knew, or reasonably should have known, both that John Healy was injured and that his injuries were wrongfully caused.

Initially, we note that plaintiffs filed their action in October 1983. Since the two-year personal injury statute of limitations applies to the action, the critical question is whether plaintiffs knew, or reasonably should have known, prior to October 1981, both that John Healy was injured and that his injuries were wrongfully caused. Consequently, any information or notice that plaintiffs received after October 1981 regarding John Healy’s condition should not be considered in determining whether plaintiffs’ action is barred.

John Healy’s deposition testimony showed that he was aware of the dangers involved in working with materials containing asbestos and he had chest X rays taken on two occasions between 1978 and 1980 to determine whether his health had been affected by his exposure to asbestos. These X rays showed that he had an abnormality in his lungs. After receiving the results of the X rays, he considered the possibility that the abnormality might be caused by his exposure to asbestos. He also learned during this period that two of his co-workers died of asbestos-related diseases. This testimony constitutes evidence of John Healy’s awareness that his lung condition might be connected with his exposure to asbestos. However, contrasted with this evidence is John Healy’s deposition testimony that, with the exception of his high blood pressure, he enjoyed good health prior to 1983. He believed that the abnormality in his lungs might be connected with pneumonia because, in interpreting his X rays, his doctors always asked whether he had had pneumonia as a child. Not until April of 1983 was he specifically advised that he had asbestosis. Prior to that time, apparently he was never told that his lung abnormality might be related to his exposure to asbestos. John Healy’s testimony constitutes evidence that prior to October 1981, plaintiffs did not know that John Healy was injured or that his injuries were wrongfully caused. We also note that as late as 1983, both Dr. Anderson of the Mayo Clinic, and Dr. Selikoff, a well-known figure in the field of asbestos-related diseases, were uncertain as to the cause of John Healy’s lung condition. This might be considered convincing proof that plaintiffs, who are laymen, reasonably could not have known of John Healy’s injuries prior to October 1981. We believe that the testimony shows that triable issues of fact existed regarding plaintiffs’ knowledge of John Healy’s injuries and awareness of the connection to asbestos exposure. Consequently, summary judgment was inappropriate.

Our decision in the present case is supported by the holding in Nolan v. Johns-Manville Asbestos & Magnesia (74 Ill. App. 3d at 778). Nolan was employed as an asbestos insulator from 1941 until 1973. In 1957, he began experiencing a generalized weakness throughout his body, shortness of breath and a little more difficulty in climbing stairs and carrying heavy equipment and materials while working. Some of his co-workers also suffered from the same problems. Nolan was aware of the dangers of asbestos products and he thought that his health problems might be caused by the asbestos products. He had an X ray taken in 1957 and was told that “there were problems in the lung” that he should have a doctor look into. He was examined by his family physician, who told him that he had lung problems but did not specify what they were. His family physician referred him to a psychiatrist, who examined him and had X rays taken. The psychiatrist told him that he did have a lung problem but that it might be partly mental. In 1965, Nolan consulted his family physician because his complaints had become more pronounced. Nolan was told that he had pulmonary fibrosis but asbestosis was never mentioned to him. He did not ask what pulmonary fibrosis meant; however, he had a strong suspicion that his physical condition and his contact with asbestos and fibrous products were related. In 1968, Nolan’s union began to publish The Asbestos Workers magazine. The magazine printed the results of tests conducted by Irving Selikoff that purported to establish a relationship between asbestos and lung problems. Nolan testified that the publication of Dr. Selikoff’s articles made him more aware of the relationship between asbestos and pulmonary conditions. In 1973, Nolan consulted Dr. Robert C. Kloempken because he began spitting up blood. Dr. Kloempken performed certain tests on Nolan and informed him that he had asbestosis as well as tuberculosis. Dr. Kloempken testified that the history taken from Nolan showed that Nolan was told in 1957 that he had pulmonary fibrosis secondary to asbestosis. However, Dr. Kloempken also testified that he was not sure that Nolan had actually used the words contained in the history. Catherine V. LeBlang, a nurse, testified that she interviewed Nolan’s wife in 1973. Her notes of the interview showed that Mrs. Nolan indicated that Nolan had been diagnosed in 1957 as having lung fibrosis from asbestos. Ms. LeBlang could not recall the words that Mrs. Nolan had actually used in the interview. Both Nolan and his wife denied that they told anyone that Nolan had been diagnosed in 1957 as having an asbestos-related disease. In a letter to a union representative dated June 23, 1973, Nolan wrote that he had a “lung biopsy that shows scar tissue & asbestos fibers *** something that has been known for years.” (74- Ill. App. 3d at 784.) Based upon these facts, the circuit court granted the motion of the defendants for summary judgment. On appeal, the appellate court reversed. The appellate court observed that portions of the evidence showed Nolan’s awareness of a lung condition which could have been connected with his exposure to asbestos. However, the testimony also supported Nolan’s contention that he did not know that he had contracted asbestosis before May of 1973. The appellate court concluded that “[t]hese conflicting evidentiary matters require that consideration and evaluation of weight to be accorded to each be resolved by a fact-finder.” Nolan, 74 Ill. App. 3d at 793.

On appeal, the Illinois Supreme Court affirmed the holding of the appellate court. The supreme court noted:

“The evidence is conflicting as to whether or when Nolan would have had sufficient information to reach [the conclusion that he had asbestosis before 1973]. The resolution of this question is not the province of this court. It is a question of fact, and in this case, a seriously' disputed one. Accordingly, summary judgment, which requires that no genuine issues of material fact exist (Ill. Rev. Stat. 1977, ch. 110, par. 57), is not an appropriate remedy here.” Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161,171-72, 421 N.E.2d 864.

Here, as in Nolan, there was some evidence supporting each of the opposite conclusions that the plaintiff was and was not aware of his lung condition and that it might be connected to asbestos exposure. The use of the summary judgment procedure to dispose of the complaint was improper in Nolan and is also improper in the case at bar.

We conclude that questions of fact existed as to when plaintiffs knew, or reasonably should have known, both that John Healy was injured and that his injuries were wrongfully caused. Thus, summary judgment in favor of defendants was improper. Because of this conclusion, we need not address the other arguments raised by plaintiffs on appeal. Accordingly, we reverse the order of the circuit court of Cook County entering summary judgment in favor of defendants, and we remand for further proceedings consistent with this opinion.

Reversed and remanded.

FREEMAN, P.J., and CERDA, J., concur.

      The complaint named 22 companies and corporations as defendants. Through various motions, the number of defendants has been reduced to nine. The companies and corporations which remain as defendants in this action are Owens-Corning Fiberglas, Eagle-Picher, Industries, Inc., the Celotex Corporation, Owens-Illinois, Inc., Pittsburgh Corning Corporation, Fibreboard Corporation, Keene Building Products Corporation, Keene Corporation, and Rock Wool Manufacturing Company and will be referred to collectively as the “defendants.”

      Judy Healy Jennings was a technician in the radiology department of Christ Hospital where the X ray was taken. She joined the hospital in 1978 upon her graduation from college.

      However, John Healy testified several times at his deposition that the doctors that he consulted regarding the X rays always asked him whether he had had pneumonia as a child, a question that he could not answer. Pneumonia can result in extensive scarring of the lungs. John Healy testified that he did not consider the possibility that the abnormality was caused by his work with products containing asbestos because of the doctors’ questions regarding pneumonia.

      Dr. Wall’s notes regarding his examination of John Healy in 1980 indicate that: “Jack-Had recent chest X ray — awaiting comparison [with] prior X rays — shows fibrotic changes (L) base-pronounced.” But there was no evidence that these notes were communicated to plaintiffs.

      We note that the letter from Dr. Selikoff was received by John Healy less than two years prior to the time that the plaintiffs filed their complaint. Thus, even if we assume that the letter from Dr. Selikoff gave notice to the plaintiffs of John Healy’s medical condition, plaintiffs’ action would not be barred by the applicable statutes of limitations.

      The deposition was in two sessions, the first on October 23, 1984, and the second on December 3, 1984. John Healy gave conflicting answers at the two sessions when asked what Dr. Anderson had told him regarding the cause of his lung problems.

      The green sheets were industrial health and hygiene reports which were inserted in the Asbestos Workers Journal.

      We have not considered the information communicated to John Healy by Dr. Selikoff since the X ray at issue was taken in November of 1981 and the results thereof were not available to John Healy until January of 1982.

      Defendants maintain that Dr. Anderson’s letter to Dr. Wall cannot “legitimately be considered” because the letter is unauthenticated and is hearsay. Plaintiffs tendered the letter, as well as the remainder of John Healy’s medical records, to the circuit court at the hearing on the motion for summary judgment. Plaintiffs relied upon the letter, without objection, in their argument against the motion for summary judgment. Moreover, in their argument on the motion for summary judgment, defendants invited the circuit court to examine John Healy’s medical records. We believe that the letter may properly be considered on review. See Miller v. St. Charles Condominium Association (1986), 141 Ill. App. 3d 834, 838, 491 N.E.2d 125.

       Justice Rizzi recused himself from this appeal. Justice Cerda read the briefs and listened to the oral argument tapes.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAURICE BARFIELD, Defendant-Appellant.
    First District (3rd Division)
    No. 1—86—2420
    Opinion filed June 28, 1989.
    Modified on denial of rehearing September 13, 1989.

      Michael J. Pelletier and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Patricia Y. Brown, and Lauren E. Brown, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Following a bench trial, defendant, Maurice Barfield, was found guilty of the murder and the attempted armed robbery of Maurice Davis. Defendant was sentenced to 66 years’ imprisonment for the murder, and 15 years’ imprisonment for the attempted armed robbery, the sentences to run concurrently. Defendant filed a timely appeal and he argues that: (1) he was denied effective representation of counsel; (2) the trial court erred in sentencing him to an extended term of imprisonment for murder; (3) his sentence should be reduced in light of the shorter sentences imposed on his codefendants, Anthony Castile and Lament Lowe; and (4) the trial court failed to order a presentence investigation report as required by statute. For the reasons stated below, we affirm defendant’s conviction and sentence.

A summary of the evidence adduced at trial follows.

Margaret Ann Davis, Maurice Davis’ mother, testified that her son was alive on the afternoon of January 30, 1985. She identified his body at the Cook County morgue on January 31,1985.

Dr. Edmond Donoghue is a forensic pathologist employed by the office of medical examiner of Cook County. On January 31, 1985, he examined the body of Maurice Davis. He observed a gunshot entry wound on the right side of the head, above and in front of the right ear. He also observed a gunshot entry wound on the left side of the head, above and in front of the left ear. He removed skin tissues from both entry wounds and examined the tissues under a microscope. The tissues from the left side entry wound revealed the presence of gunpowder residue. He did not observe any gunpowder residue in the tissues taken from the right side entry wound. Dr. Donoghue testified that in his opinion, Maurice Davis died of multiple gunshot wounds.

On cross-examination, Dr. Donoghue testified that he did not observe any other lacerations, bruises, injuries or evidence of recent trauma on the body.

Ricky Tate testified that, on January 30, 1985, he went to the High Roller Car Wash at 3419 W. Madison in Chicago to apply for a job. Defendant entered the car wash and asked him some questions. Defendant then went to the door of the car wash and talked with Lamont Lowe and Anthony Castile. Maurice Davis was also standing by the door. Defendant then walked over to the stairs in the car wash and talked with Wilson Shepard, the car wash manager. Defendant picked up his belongings by the stairs and returned to the door. Defendant then told Maurice Davis that he was disrespectful. Davis replied that he respected defendant and asked him not to shoot. At this point, Castile was holding Davis by the left leg, Lowe was holding him by the arm, and defendant was holding his shirt. Davis fell down in a sitting position. Defendant stood over Davis with his arms in front of him and pointed toward the ground, and the gun went off. Defendant then stuck his arm in his jacket and ran out of the car wash. Lowe and Castile went through Davis’ pockets and then ran out.

Ricky Tate testified that he drank some beer at approximately 3 p.m. on the afternoon of the incident. He was interviewed by the police after the incident. He told the police what had happened but said that he could not identify the offenders. He did not tell the police that he had seen the offenders nor did he describe the offenders.

On cross-examination, Ricky Tate testified that Janette Conway and Wilson Shepard were upstairs at the time of the shooting. The only other persons on the ground floor of the car wash were defendant, Lowe, Castile, Maurice Davis, and David McDonald. Mr. McDonald was approximately 35 feet away from the area of the shooting.

Janette Conway testified that she was working at the car wash on January 30, 1985. She was talking with Wilson Shepard when defendant, Lowe and Castile entered the car wash. She had known defendant, Lowe and Castile for some time prior to the shooting. Maurice Davis then entered the car wash and attempted to sell some merchandise to Shepard and Conway. Conway then testified that Lowe grabbed Davis by the neck while Castile started going through his pockets. Davis tried to get away, but, instead, fell down. Defendant then pointed a gun at Davis’ head, shot him twice, and ran out through the garage door of the car wash. Lowe and Castile searched Davis’ pockets and then went out through the side door of the car wash.

Later that evening, Janette Conway was interviewed by the police at the car wash. She told the police that defendant shot Davis. She was then taken to the police station where she told the police that defendant’s companions were Lamont Lowe and Dirty Red, Anthony Castile.

Janette Conway testified that she was on the ground floor of the car wash at the time of the shooting. She followed Wilson Shepard upstairs after the shooting. Ricky Tate followed her upstairs.

Wilson Shepard testified that on January 30, 1985, he was talking with Janette Conway when defendant, Anthony Castile, Lamont Lowe and Twat entered the car wash. Like Ms. Conway, he had known defendant, Castile and Lowe for some time prior to the incident. Maurice Davis then entered the car wash and asked of Conway or Shepard whether either of them wanted to buy some merchandise. When they said no, Davis went to the door at the front of the car wash. Mr. Shepard testified that he then heard Lamont Lowe say, “Come on, Maurice,” and Twat say, “I’m going to do that thing and I’m fixing to do it right now.” Twat walked to the front door while reaching for his right back pocket. Defendant staggered over to the shoeshine stand and got his jacket. Defendant then followed Lowe to the front door. Anthony Castile had walked up to the front door several minutes earlier. Mr. Shepard then heard a rumble, turned, heard some shots, ran upstairs, and called the police.

On cross-examination, Mr. Shepard testified that defendant was staggering earlier in the evening. Defendant had either been drinking or smoking. Approximately 10 minutes before the shooting, defendant approached him and said “Bigman, he said, I just don’t know, he said, I’m so__high it feels like I’m floating in the air.” Defendant then went to the juke box and lifted his arms like he was floating in the air.

Police officer Robert Grapenthien testified that on January 30, 1985, he responded to a call that a man had been shot at the car wash. He spoke to Janette Conway at the car wash. She identified defendant as the offender. He then proceeded to defendant’s apartment at 3407 Monroe Street in Chicago. He located defendant in a bedroom in the apartment and placed him under arrest. Officer Tondryk recovered a gun on the floor of the bedroom.

Officer Grapenthien further testified that defendant made the following statement. Defendant said that Maurice Davis had robbed them earlier that week and that they were going to rob him. Defendant had a gun. Castile, Lowe and Antoinne Stensón, known as Twat, grabbed Davis and hit him. Davis started fighting and they knocked him to the ground. Castile, Lowe and Stenson yelled out “shoot him” and defendant fired twice at Davis.

On cross-examination, Officer Grapenthien testified that his police report does not indicate that defendant told him that Davis had robbed him.

Sergeant Vincent Tondryk testified that on January 30, 1985, he recovered a Rossi revolver with a cut-off barrel on the floor of defendant’s bedroom. The revolver contained two expended rounds and three live rounds of ammunition.

Sergeant Vincent Lomoro testified that he examined a .38 caliber Rossi that was forwarded to the crime laboratory of the Chicago police department. He also examined two bullets that were forwarded to him by the coroner’s office. In his opinion, one of the bullets was fired from the .38 caliber Rossi. The second bullet had the same class characteristics as the first bullet. However, due to mutilation and loss of bullet surface, he could not say positively that the second bullet was also fired from the .38 caliber Rossi.

Assistant State’s Attorney Catherine Quattrocchi testified that on January 31, 1985, defendant gave her an account of the shooting. Defendant said that on January 30, 1985, he was at the car wash with Antoinne Stenson, Anthony Castile and Lament Lowe when Maurice Davis entered the car wash. Defendant heard someone say, “There he go, the one who tried to rob us.” Lament Lowe then handed a gun to him and said, “Let me grab [Davis].” Lowe grabbed Davis and “they were tussling.” Lowe, Castile and Antoinne Stenson then went through Davis’ pockets and bag, threw him down on the floor and said, “Shoot him, man, shoot him.” Defendant took the gun out of his pocket, waited for a little while and then shot Davis. He waited a while longer and shot Davis a second time. He then ran home from the car wash and placed the gun behind the dresser in his bedroom.

At the conclusion of the evidence, the trial court found defendant guilty of attempted armed robbery and murder. The trial court then held a death sentencing hearing at which the following testimony was adduced.

Police officer Grapenthien testified that defendant is a member of the Mad Black Souls, a faction of the Black Souls gang. Officer Grapenthien arrested defendant on October 8, 1984, after he observed defendant pull a gun out of his jacket pocket and throw it on the ground. On October 19, 1984, defendant pled guilty to unlawful use of weapons.

Sister Antoinette Burgen, the director of family and neighborhood services at Marillac House, testified for the defense. On October 17, 1983, she hired defendant as an aide at Marillac House. Defendant was employed at Marillac House until the date of his arrest. His employment history at Marillac House was satisfactory. He never had any problems dealing with the clientele of Marillac House.

Defendant testified that on the day of the shooting, he drank some Richard’s, some White Port, and some C.C., and smoked PCP happy sticks. PGP causes him to become violent and makes it difficult for him to tell the difference between right and wrong. Shortly before the shooting, Shepard told him that he should go home and get some sleep because he seemed to be in bad shape.

On cross-examination, defendant testified that he had used happy sticks on previous occasions and that he knew the effects of happy sticks. On the day of the shooting, he shared five happy sticks with several other persons.

At the conclusion of the hearing, the trial court decided that defendant should not be sentenced to death. Instead, the trial court sentenced defendant to a term of imprisonment.

Opinion

INEFFECTIVE ASSISTANCE OF COUNSEL

We first consider defendant’s contention that he was denied the effective assistance of counsel. To obtain a new trial, a defendant who asserts that he was denied the effective assistance of counsel must show both a deficiency in counsel’s performance and prejudice resulting from that. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; People v. Weir (1986), 111 Ill. 2d 334, 337, 490 N.E.2d 1.) Counsel’s performance is deficient if it falls below an objective standard of reasonableness considering all the circumstances. (Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065; Wiley v. Sowders (6th Cir, 1981), 647 F.2d 642, 648, cert. denied (1981), 454 U.S. 1091, 70 L. Ed. 2d 630, 102 S. Ct. 656; People v. Powell (1987), 159 Ill. App. 3d 1005, 1014, 512 N.E.2d 1364.) To show actual prejudice resulting from the alleged deficiency in counsel’s performance, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

The inquiry into the competency of counsel will not generally extend to the exercise of judgment, discretion, trial tactics or strategy even where appellate counsel or the reviewing court might have handled the matter differently. (People v. Schmidt (1988), 168 Ill. App. 3d 873, 882, 522 N.E.2d 1317.) A defendant is entitled to competent, not perfect, representation, and the fact that a tactic in retrospect proved unsuccessful does not demonstrate incompetence. (Wiley v. Sowders, 647 F.2d at 648; People v. Schmidt, 168 Ill. App. 3d at 882.) Moreover, a defendant may not rely on mere conjecture or speculation that the outcome would have been different with representation of higher caliber. People v. Schmidt, 168 Ill. App. 3d at 882; see also People v. Weir, 111 Ill. 2d at 339.

In a narrow range of cases, a defendant complaining of the ineffective assistance of counsel need not demonstrate that he suffered actual prejudice from counsel’s deficient performance. (Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Hattery (1985), 109 Ill. 2d 449, 461, 488 N.E.2d 513, cert. denied (1986), 478 U.S. 1013, 92 L. Ed. 2d 727, 106 S. Ct. 3314.) The sixth amendment requires, at a bare minimum, that defense counsel act as a true advocate for the accused. Where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” United States v. Cronic (1984), 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047; People v. Hattery, 109 Ill. 2d at 461.

In the case at bar, defendant asserts that counsel failed to act as a true advocate because counsel admitted that defendant was guilty of the murder. Citing People v. Hattery (109 Ill. 2d 449, 488 N.E.2d 513), defendant maintains that his claim of ineffective representation falls within the range of cases where prejudice will be presumed.

In People v. Hattery, the defendant was charged with the murder of a woman and her two children. The evidence showed that the defendant stood guard over the victims while a codefendant and the woman’s husband were trying to obtain drugs. The defendant confessed to the murders but claimed that the codefendant instructed him to kill the victims if the codefendant did not return within a short period of time. The defendant also claimed that the codefendant threatened to harm him and his family if he disobeyed the order to kill the victims. In the opening statement, defense counsel told the jury that, at the end of its deliberations, it would find the defendant guilty of murder and eligible for the death penalty. Defense counsel then told the jury that the only question would be whether to impose the death penalty on the defendant for trying to save the life of his family. Defense counsel did not present any theory of innocence at trial, did not present any evidence and did not make a closing argument. Rather, defense counsel attempted to show, in cross-examination, that the defendant’s actions were the result of compulsion. The defendant was convicted of the murders and sentenced to death. On appeal, the Illinois Supreme Court stated:

“After considering the actions of the defense counsel in the present case we are convinced that the prosecution’s case was not subjected to the ‘meaningful adversarial testing’ required by the sixth amendment. [Citation.] The concession of defendant’s guilt by his attorneys was unequivocal. *** The comments by defense counsel during the guilt-innocence phase that the trial was a ‘death penalty’ case further impressed upon the jury the false notion that the guilt or innocence of the defendant was not at issue but, rather, had already been decided.
Defense counsel’s trial strategy — which attempted to show that defendant was guilty of murder but undeserving of the death penalty — was totally at odds with defendant’s earlier plea of not guilty. There is no evidence that defendant consented to his attorneys’ strategy, and such consent will not be presumed from a silent record.” (People v. Hattery, 109 Ill. 2d at 464.)

The court concluded that defense counsel’s actions deprived the defendant of the right to have the issue of guilt or innocence presented to the jury as an adversarial issue, and the defendant was denied effective assistance of counsel.

We believe that there are important distinctions between the present case and People v. Hattery. First, in People v. Hattery, defendant was tried by a jury. In the present case, defendant was tried by the court. We believe that a trial court is less likely to be influenced by an admission of guilt. A trial court knows that the matter of guilt or innocence is to be decided by the trier of fact and that the burden is upon the prosecuting attorney to prove guilt beyond a reasonable doubt.

Second, in People v. Hattery, the defendant was charged with three counts of murder. The defendant’s counsel did not present any defense to the charges and told the jury that the defendant was guilty as charged. In the present case, defendant was charged with attempted armed robbery and murder. Defense counsel admitted that defendant was guilty of the murder but argued vigorously that defendant was not guilty of the attempted armed robbery. Two witnesses identified defendant as the person who killed the victim. In addition, the gun used in the shooting was found in defendant’s bedroom shortly after the shooting. Lastly, defendant made a recorded statement in which he admitted that he had killed the victim. The evidence of defendant’s guilt on the murder charge was overwhelming. On the other hand, the testimony of several witnesses showed that defendant ran out of the car wash immediately after the shooting and that codefendants Lowe and Castile searched the victim’s pockets after defendant left the car wash. Defense counsel argued that defendant could not be found guilty of attempted armed robbery because the testimony did not show that defendant and the codefendants planned the robbery in advance and the attempt by Lowe and Castile to rob the victim occurred after defendant ran from the car wash with the gun.

Defense counsel’s goal was to avoid a finding that the murder was committed during the course of the attempted armed robbery. Had counsel been successful in his argument, defendant would not have been eligible for imposition of the death penalty. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1.) In light of these facts, we cannot say that counsel failed to act as a true advocate, nor can we presume that defendant was prejudiced by counsel’s actions. See People v. Buford (1988), 178 Ill. App. 3d 329, 533 N.E.2d 472 (where defendant was charged with two counts of intentional murder and one count of felony murder, and defense counsel stated during closing argument that defendant had not intended to shoot the victim, assistance of counsel was effective since accident is a defense to intentional murder although it is not a defense to felony murder); People v. Gill (1988), 169 Ill. App. 3d 1049, 523 N.E.2d 1239 (court recognized the legitimacy of admitting guilt to less than all counts in a multicount indictment or less than all elements of the crime(s) charged where evidence of defendant’s guilt is overwhelming and counsel’s strategy is to win a reduced sentence); People v. Powell (1987), 159 Ill. App. 3d 1005 (it was not unreasonable for defense counsel to concede that defendant had shot three people where defendant had not denied the shootings and there was no question regarding defendant’s identity, and the only issue was defendant’s intentions during the shootings); People v. Weger (1987), 154 Ill. App. 3d 706, 506 N.E.2d 1072 (defendant received a true adversarial criminal trial where counsel conceded guilt on the charges of burglary and possession of burglary tools, for which there was overwhelming evidence, but vigorously contested the offense of armed violence).

Since we have rejected defendant’s contention that his counsel failed to act as a true advocate, we cannot presume that defendant was prejudiced by counsel’s actions. It follows that, in order to obtain a new trial, defendant must show that he was actually prejudiced by his counsel’s actions. Defendant has failed to make such a showing. The evidence of defendant’s guilt was overwhelming. It included testimony of eyewitnesses, defendant’s confession, and the murder weapon. In our opinion, there is no reasonable probability that the results of the trial would have been different, without the admission of guilt.

We conclude that defendant has failed to show that he was prejudiced by counsel’s actions. Accordingly, defendant is not entitled to a new trial.

EXTENDED-TERM SENTENCE

Next, defendant argues that the trial court erred in sentencing him to an extended term of 66 years’ imprisonment for murder. Defendant asserts that the murder was not so heinous and brutal as to justify the imposition of an extended term.

Initially, we note that the imposition of a sentence is a matter involving considerable judicial discretion (People v. LaPointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344; People v. Barkauskas (1986), 147 Ill. App. 3d 360, 373, 497 N.E.2d 1183), and, where the sentence imposed is within the statutory limits, a reviewing court will not exercise its power to reduce the sentence absent a finding that the trial court abused its discretion. (People v. Cabrera (1987), 116 Ill. 2d 474, 494, 508 N.E.2d 708, cert. denied (1987), 484 U.S. 929, 98 L. Ed. 2d 257, 108 S. Ct. 297; People v. Smith (1988), 172 Ill. App. 3d 94, 112, 526 N.E.2d 849.) It is generally recognized that the trial court is in a superior position during the trial and the hearing in aggravation and mitigation to make a sound determination as to the punishment to be imposed than are courts of review. People v. Cabrera, 116 Ill. 2d at 494.

Section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2) provides that a trial court may impose an extended-term sentence when a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Conduct is “heinous” if it is hatefully or shockingly evil, grossly bad, enormously and flagrantly criminal. (People v. La Pointe (1981), 88 Ill. 2d 482, 501, 431 N.E.2d 344; People v. Nester (1984), 123 Ill. App. 3d 501, 504, 462 N.E.2d 1011.) “Brutal” includes conduct which is grossly ruthless, devoid of mercy or compassion, or cruel and cold-blooded. (People v. LaPointe, 88 Ill. 2d at 501.) A showing that torture or unnecessary pain was inflicted upon the victim is not a prerequisite to finding that the defendant’s behavior was brutal or heinous. (People v. LaPointe, 88 Ill. at 501; People v. Hickman (1986), 143 Ill. App. 3d 195, 205, 492 N.E.2d 1041.) A single act which causes death or injury may be sufficient to demonstrate the existence of wanton cruelty. People v. Hickman, 143 Ill. App. 3d at 205; People v. Nester, 123 Ill. App. 3d at 506.

In the present case, the evidence at trial showed that defendant, Lament Lowe and Anthony Castile planned to rob the victim. When the victim entered the car wash, Lament Lowe said “[Cjome on Maurice,” and “[L]et me grab him.” Lament Lowe then handed a gun to defendant. Twat, defendants’ companion, said “I’m going to do that thing and I’m fixing to do it right now.” Defendant followed Lowe to the front door, where the victim was standing. Lowe held the victim by the arm, Castile held the victim by the leg and defendant grabbed the victim by the front of his shirt. The victim was thrown to the floor. Defendant’s companions said “[Sjhoot him, man, shoot him.” Defendant took the gun out of his pocket, waited for a little while and shot the victim in the head. He waited a while longer and shot the victim in the head a second time. One of the bullets left gunpowder residue on the victim’s skin, an indication that the gun was fired at close range. Defendant then ran from the car wash.

Defendant’s conduct demonstrates a cold-blooded attack upon a person who was on the ground and defenseless. Moreover, it has been held that a defendant’s subsequent demonstration of remorse for his conduct or a lack of a penitent spirit is an important factor in determining whether his conduct is indicative of wanton cruelty. (People v. Hickman, 142 Ill. App. 3d at 206; People v. Nester, 123 Ill. App. 3d at 506.) We have not found any evidence in the record that defendant exhibited remorse for his conduct. To the contrary, defendant ran from the car wash and made no attempt to help the victim. Defendant went home and attempted to hide the murder weapon. Based upon the record in this case, we cannot say that the trial court abused its discretion when it found that defendant’s conduct was indicative of wanton cruelty. See People v. La Pointe, 88 Ill. 2d 482 (defendant planned to rob a taxi driver, shot the driver twice in the back of the head, took the driver’s money and fled); People v. Nester, 123 Ill. App. 3d 501 (a cold-blooded attack upon a person who had already been beaten in a fight was indicative of wanton cruelty).

Defendant maintains that he was under the influence of drugs and alcohol on the day of the shooting, and, consequently, the trial court erred in finding that his conduct was indicative of wanton cruelty. Although Wilson Shepard’s testimony at trial and defendant’s testimony at the sentencing hearing provide some support for defendant’s claim that he was under the influence of drugs on the day of the shooting, other evidence in the record supports the inference that defendant was not incapacitated by his alleged use of drugs. We note that although defendant testified that he smoked PCP happy sticks on the day of the shooting, defendant nowhere testified that he was either intoxicated or drugged at the time of the shooting. Nor did defendant testify that, at the time of the shooting, he could not tell the difference between right and wrong. Moreover, defendant testified that he shared the PCP happy sticks with several other persons, and that he was able to unwrap the PCP happy sticks from the aluminum foil in which they were contained and light them.

Shortly after the shooting, defendant made a statement to police officer Grapenthien in which he admitted having planned to rob the victim and shooting the victim. Several hours after the shooting, defendant gave a detailed statement to State’s Attorney Quattrocchi and corrected several mistakes in the transcript of the statement. Furthermore, the presentence investigation report filed in the trial court indicates that defendant was able to stop using drugs, as well as aleohoi, sometime in 1984. The shooting occurred in January 1985. These facts indicate that defendant had not used any drugs on the night of the shooting or was not incapacitated by his use of drugs and alcohol. We conclude that the trial court’s findings that defendant was aware of his actions and that his conduct was indicative of wanton cruelty were not against the manifest weight of the evidence.

DISPARATE SENTENCES

Defendant argues that his sentence must be reduced in light of lesser sentences imposed on codefendants Lamont Lowe and Anthony Castile. We disagree. Although an arbitrary and unreasonable disparity between the sentences of codefendants is impermissible, the mere fact that one defendant receives a substantially longer sentence than another does not, by itself, establish a violation of fundamental fairness. (People v. Kline (1982), 92 Ill. 2d 490, 508, 442 N.E.2d 154.) A disparity between sentences may be supported by either a more serious criminal record or greater participation in the offense. People v. Godinez (1982), 91 Ill. 2d 47, 55, 434 N.E.2d 1121; People v. Treece (1987), 159 Ill. App. 3d 397, 418, 511 N.E.2d 1361; People v. Martin (1980), 81 Ill. App. 3d 238, 245, 401 N.E.2d 13.

Judge Gillis of the circuit court presided over defendant’s bench trial, and sentenced defendant to 66 years’ imprisonment for murder. Judge Gillis also presided over the jury trial and sentencing hearing of codefendants Lamont Lowe and Anthony Castile. He sentenced Lamont Lowe to 25 years’ imprisonment for murder. Anthony Castile received a sentence of 22 years’ imprisonment for murder. In imposing sentence over Lowe and Castile, Judge Gillis observed:

“The facts in this case were aggravated. As I indicated in the sentencing of Maurice Barfield, it was Maurice Barfield that did the heinous and brutal acts that killed maurice Davis. It may have been the joint plan, may have been the idea of Lamont Lowe to start this robbery or commit this robbery, but I cannot jump to the conclusion that the murder of Maurice Davis was a part of that. There’s no evidence of that and I cannot jump to the conclusion that every person who plans to commit a robbery plans to commit a murder or in this case, plans to commit a heinous brutal murder.
* * *
I want to emphasize again that the defendants, not Lamont Lowe and not Maurice Barfield — excuse me. Not Lamont Lowe and not Anthony Castile, neither of those men took a gun and shot the victim in this case. They were part of a robbery Mr. Lowe may have started. Initiated the robbery. They did not pull the trigger. They did not kill. They did continue to rob the dead or dying man. That’s a proper factor to be considered in aggravation and I have considered that. Shows a callousness one would hope not to see and experience and that standard is in the record, for what it is.”

Thus, it is clear that Judge Gillis belived that Lowe and Castile should receive lesser sentences because of their lesser participation in the murder.

The record shows that defendant approached the victim, held him by the shirt and told him that “he was disrespectful.” The victim replied that “he respected” defendant and asked defendant not to shoot. Castile held the victim by the left leg and Lowe held the victim by the arm. The victim fell to the floor. Defendant stood over the victim with his arms pointed toward the ground and shot the victim once on the right side of the head and once on the left side of the head. It is recognized that a court of review, in considering the appropriateness of punishment, must give great weight to the judgment of the trial court. (People v. Godinez, 91 Ill. 2d at 55.) The trial court’s decision may not be altered absent an abuse of discretion. (People v. Moon (1982), 107 Ill. App. 3d 568, 575, 437 N.E.2d 823; People v. Johnson (1978), 59 Ill. App. 3d 640, 642, 375 N.E.2d 1027.) Upon this record, we cannot say that Judge Gillis abused his discretion in sentencing defendant to a longer term of imprisonment than Lowe and Castile. See People v. Godinez, 91 Ill. 2d 47, 434 N.E.2d 1121 (disparity in sentences was justified where defendant entered the food store first, commanded the victims, and emptied the cash registers); People v. Treece, 159 Ill. App. 3d at 418-19 (disparity in sentences was justified where defendant took the victim from her home, at gunpoint, and fired the gun, killing the victim); People v. Ganter (1977), 56 Ill. App. 3d 316, 327-28, 371 N.E.2d 1072 (disparity in sentences was justified where defendant announced a stickup and shot the victim twice while the victim was in a helpless position).

PRESENTENCE INVESTIGATION REPORT

A presentence investigation report was filed with the trial court on June 10, 1985. Defendant was sentenced on August 18, 1986. The trial court did not order a new presentence investigation report for use at the sentencing hearing. Defendant argues that the trial court erred in failing to order a new presentence investigation report and asks that we remand for a new sentencing hearing. We refuse to do so.

Defendant failed to object to the use of the 1985 presentence report at the sentencing hearing. Defendant also failed to raise this issue in a motion for a new trial. It is the duty of defendant to bring to the attention of the trial court any alleged deficiency or inaccuracy in the presentence report. (People v. Meeks (1980), 81 Ill. 2d 524, 533, 411 N.E.2d 9; People v. Moore (1987), 159 Ill. App. 3d 1070, 1075, 513 N.E.2d 87; People v. Gornick (1982), 107 Ill. App. 3d 505, 515, 437 N.E.2d 892.) Accordingly, defendant has waived any purported deficiency in the presentence report with respect to its lack of current information. People v. Moore, 159 Ill. App. 3d at 1075 (absent an objection or a request for a supplemental report, the defense contention that the report lacked sufficiently current information is waived); People v. Gornick, 107 Ill. App. 3d at 515; People v. Chaney (1977), 48 Ill. App. 3d 775, 792, 362 N.E.2d 1375.

For the aforementioned reasons, defendant’s conviction and sentence are affirmed.

Affirmed.

FREEMAN, P.J., and McNAMARA, J., concur.

      In closing argument, defense counsel told the trial court:
      “The Court in this case, unlike the jury, heard all of the evidence and all of the witnesses. I don’t think there is any argument in this case about who the shooter was. In every instance each person has said that my client Maurice Barfield fired the fatal shot. I don’t think that there is any argument that the gun was recovered from his home.
      I think the issue in this case is, however, whether or not Maurice Barfield shot this man to aid in a robbery attempt.
      * * *
      The version is given and what was put in evidence here that the defendant fired these shots and immediately fled. And immediately fled. The fact that these men went through [the victim’s] pockets after he had ran [sic] away might make it a robbery but it certainly won’t make it an armed robbery.
      * * *
      And the circumstantial evidence case that the court is trying to make against this defendant is robbery which the defendant did not participate in. The defendant shot the man and fled. He immediately, that is the testimony of the shy witness Janette Conway, that is the testimony of the late recalling witness Ricky Tate, and that’s the *** statement in here from this defendant.
      I can only say this to the Court that if the defendant were participating in a robbery, intended to rob somebody, why would he run away as soon as he fired the shots.

        * ** **
      But that doesn’t make it come out of a robbery because after [defendant] shot the man and ran away someone decided to go in [the victim’s] pockets, it doesn’t make it a robbery, your Honor. Murder, yes; robbery, no.
      And that’s the evidence that the State presented to this Court.
      * * *
      That Mr. Shepard said to the Court that this kid took his jacket down and he asked him something and he said to Mr. Shepard, I’m high, I believe the expression was, a vulgarity as a___
      Now, Judge, I know that’s not the defense to murder and I’m not claiming it as a defense but I do think it’s a fact in this case to indicate how such a thing happened, how a person that young could suddenly take another human being’s life.”

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