author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEANARD PAYNE, Defendant-Appellant.
    First District (4th Division)
    No. 1—86—1435
    Opinion filed February 1, 1990.

      Michael J. Pelletier and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil Partee, State’s Attorney, of Chicago (Inge Fryklund, Judy L. Groeneveld, and Sidney Z. Felischman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial, defendant, Leanard Payne, was found guilty of residential burglary with intent to commit a felony therein (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 3) and sentenced to four years’ imprisonment. He appeals from this judgment of the circuit court of Cook County. The following issues are raised on appeal: (1) whether the People proved that defendant was guilty of residential burglary beyond a reasonable doubt; (2) whether the trial court incorrectly instructed the jury on the mental state required in order to be convicted of residential burglary; and (3) whether the trial court improperly permitted the People to amend the charge immediately prior to trial.

We reverse.

Originally defendant was charged by information with residential burglary with intent to commit theft. Prior to trial and before jury selection, the People moved to amend the charge to residential burglary with intent to commit a felony. The trial court overruled his objection and granted the motion to amend.

At trial, Ernestine Jackson testified that shortly before midnight on March 3, 1985, she was sitting in the living room of her home, located at 139 South 11th Avenue, Maywood, Illinois, listening to the radio. The house had two front doors; one leading to an enclosed porch, and one, the main door, leading directly into the house. When she heard the outside door slam, she looked out of the window and saw a man, later identified as Leanard Payne, the defendant, throwing his body against the door. Ernestine called to the man, but he failed to respond. She ran to the kitchen and picked up a knife; however, she put it back. She could still hear the intruder pushing against the door. Thereafter, she ran upstairs to awaken her mother, Leona Jackson. Leona immediately attempted to telephone the police, but she had dialed the wrong number; upon her second attempt to call them, there was no dial tone. Ernestine stated that she then left the house through a bedroom window and ran six blocks to the police station.

Leona Jackson testified that she awakened her husband, Eugene Jackson, to tell him someone was trying to break into the house. Eugene loaded his gun and went to the top of the stairs. Defendant, after gaining entry, began screaming, “Daddy! Daddy!” Eugene told him he had the wrong house and that he was not his father. Eugene asked defendant to identify himself, but there was no response. The defense objected to this testimony on the basis that the contents of the oral statement by defendant had not been tendered to the defense through discovery. The objection was overruled. Eugene further testified that he told defendant to leave, but he continued to come up the stairwell. Eugene fired a warning shot and defendant disappeared.

When Ernestine returned home with a police officer, she noticed that the window on the door leading from the stairs to the porch was broken. She also noticed that the lock on the outside door was damaged and that the entire frame to the main door was hanging off its hinges. The jacket defendant wore was lying on the living room floor. Eugene went into the downstairs bathroom and found one shoe and a broken window.

Lieutenant Harold Jenkins testified that on March 4, 1985, at approximately midnight, he was called to a home located at 111 South 10th Avenue, in Maywood, which is directly across the alley from the Jackson home. Officer Barnett met Jenkins at that location. Barnett and Jenkins observed defendant standing in the doorway, between the screen and frame doors. He was forcefully knocking at the door. He was not wearing a jacket, and one of his shoes was missing. Jenkins asked defendant why was he at the door, but there was no reply. He then ordered defendant to move away from the door. Again, defendant failed to respond in any manner. The resident of the house stated that she did not know the individual. Jenkins later established that the one shoe defendant was wearing matched the shoe found in the Jackson home.

After the People rested, defendant moved for a directed verdict, which was denied. Thereafter, the court held an instructions conference. The People tendered non-Illinois Pattern Jury Instructions (hereinafter IPI Criminal) for residential burglary. The court overruled defendant’s objections to these instructions.

The jury found defendant guilty of residential burglary with intent to commit a felony therein. The court ordered a TASC (Treatment Alternatives to Street Crimes) evaluation to have defendant treated for drug addiction in lieu of sentencing. Defendant admitted his drug addiction and stated that he wanted help. However, the TASC representative found defendant ineligible for the program because defendant lacked recognition of the need for treatment. The trial court, therefore, found defendant ineligible for the program and sentenced him to four years’ incarceration with a recommendation for psychiatric treatment.

Defendant’s first contention on appeal is that the People failed to prove him guilty of residential burglary beyond a reasonable doubt. Defendant argues that the People failed to prove that he entered the house with a felonious intent.

Residential burglary is the knowingly unauthorized entry into the dwelling place of another with the intent to commit a felony or theft therein. (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 3(a).) Felonious intent may be inferred from the defendant’s words, actions, violence and any other conduct. (People v. Cabrera (1987), 116 Ill. 2d 474, 492.) It is within the province of the trier of fact to consider all the facts and circumstances surrounding the offense in determining the question of intent. Cabrera, 116 Ill. 2d at 492.

“[Breaking and entering cannot be used to infer an intent to commit any other felony. If it could, the requirement of specific intent to commit that other felony would be meaningless. There would be no need to prove any specific intent at all, since all types of intent would be inferred from the unauthorized entry. Intent is often, of course, inferred from circumstantial evidence. But that does not mean that there is no separate element of intent, or that we can indulge in the hopelessly circular reasoning that the entry must be accompanied by an intent which stands proven by the entry itself.” People v. Toolate (1984), 101 Ill. 2d 301, 308.

The People argue that defendant’s felonious intent was to either harm the Jackson family or to take Eugene’s gun away from him. Initially we note that all instances of harm to another are not felonious. For example, battery, defined as causing bodily harm to another, is classified as a misdemeanor. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 3(b).) In order for a battery to constitute a felony, one or more of the following aggravating factors pertinent to the case at bar must be present: (1) the use of a deadly weapon; (2) the use of a disguise to conceal one’s identity; or (3) the infliction of great bodily harm. Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4.

The evidence fails to support the inference that defendant intended to commit aggravated battery. Defendant was not disguised nor did he have a weapon. There was no indication that he intended to inflict great bodily harm to any member of the Jackson family. As a matter of fact, defendant’s conduct was quite bizarre, as noted by the trial court. The trial court believed, and defendant admitted, that he was a drug addict and was under the influence of drugs on the day in question. Thus, we do not find that defendant intended to commit an aggravated battery.

Unlike battery, robbery is a felony. (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 1(b).) Robbery is the taking of property from another by use of threat of force. (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 1(a).) Again, we find no evidence to support the People’s argument that defendant intended to commit a felony. As mentioned above, defendant was not armed with a weapon nor did he threaten the Jackson family with the use of force. The only act that defendant committed was to break and enter into the Jackson home without their authority. This act alone is not sufficient to infer an intent to commit a felony. People v. Toolate (1984), 101 Ill. 2d 301, 308.

Defendant next contends that the trial court incorrectly instructed the jury on the mental state required for a conviction of residential burglary with intent to commit a felony. He argues that the jury instructions failed to specifically define felonious conduct and erroneously included the intent to commit a theft as a permissible basis for conviction. The following jury instructions, taken from IPI Criminal 2d Nos. 4.04, 14.05, and 14.06 (Illinois Pattern Jury Instructions, Criminal, Nos. 4.04, 14.05, 14.06 (2d ed. 1981)), pertaining to burglary were given:

“A person commits the offense of residential burglary when he knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.
The word ‘felony’ means an offense punishable by death or by imprisonment in the penitentiary.
To sustain the charge of residential burglary, the State must prove the following propositions:
First: That the defendant knowingly entered the dwelling place of another; and
Second: That the defendant did so without authority; and
Third: That the defendant did so with the intent to commit therein a felony or theft.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

Under IPI Criminal 2d No. 14.05 “burglary” is defined as follows: “A person commits the offense of residential burglary when he, without authority, knowingly *** (enters) *** [the dwelling place of another] with intent to commit therein the offense of_” At the end of the instruction, the offense defendant allegedly intended to commit should be inserted. The following is stated in the Committee Note to IPI Criminal 2d No. 14.05:

“The insertion in the specific intent clause at the conclusion of the instruction should be taken from the information or indictment. It should be either ‘theft,’ if that is the specified objective of the burglary, or the particular felony specified in the indictment or information as the object of the burglary. If the objective of the burglary has been alleged generally as ‘to commit a felony’ or if alternative objectives have been alleged, the conclusion of the instruction may refer to alternative objectives of the burglary, as are supported by sufficient evidence to merit inclusion in an instruction.” IPI Criminal 2d No. 14.05, Committee Note, at 311.

The issue instruction for burglary provides that the State must prove the following propositions: (1) the defendant knowingly entered.the dwelling place of another; (2) the defendant did so without authority; and (3) the defendant did so with the intent to commit the offense of_(IPI Criminal 2d No. 14.06.) The Committee Note to IPI Criminal 2d No. 14.06 refers to the Committee Note to IPI Criminal 2d No. 14.05 for the appropriate offense to insert at the conclusion of the instruction. It further “recommends that, at the request of either party, or sua sponte, the court define the offense (theft or the specified felony) alleged as the objective of the burglary.” IPI Criminal 2d No. 14.06, Committee Note, at 312.

The record reveals that contrary to the committee notes above, the jury instructions included the intent to commit theft as an alternative offense upon which to support a finding of guilt. Nevertheless, the intent to commit theft charge was not a factor of an objective stated in the amended charge against defendant. Furthermore, the People did not argue or present any evidence for this element. “The law is clear that the jury can be instructed only concerning the crime charged [citation]. The natural result of instructions based upon other crimes is prejudice to the defendant [citations]. It is reversible error to inject into the case, by way of instruction, issues which are not properly before the jury. [Citation.]” People v. McCauley (1972), 2 Ill. App. 3d 734, 736.

Moreover, the trial court failed to instruct the jury on what constitutes felonious conduct. As noted earlier, the jury was merely told that a felony is an offense punishable by death or imprisonment in the penitentiary. People v. Palmer (1980), 83 Ill. App. 3d 732, specifically addresses this issue. In Palmer, the defendant was charged with two counts of burglary with intent to commit therein a theft or felony. On appeal the burglary convictions were reversed and remanded due to improper jury instructions identical to those in the instant case.

Unlike the case at bar, in Palmer the court found the intent to commit theft was properly included in the instructions because the evidence showed that the defendant may have entered the dwelling to commit a theft. Nevertheless, noting that the Committee Note to IPI Criminal No. 14.06 requires the instruction to designate the crime defendant allegedly intended to commit, the court found that “the jury was neither informed as to what conduct would constitute any other offenses the defendant might have intended to commit nor whether those offenses carried a sufficient penalty to make them a felony.” (Palmer, 83 Ill. App. 3d at 737.) The court made the following conclusion:

“The argument in support of the instructions illustrates, however, the error in the form in which IPI No. 14.06 was given. The circumstantial evidence was fully sufficient for the jury to have inferred that the defendant intended to commit theft inside the apartment. *** But because of the defendant’s rather bizarre conduct, the jury could have rejected that inference and concluded that he intended to commit conduct of the type described in his tendered instructions. Under the format of instructions as given, the jury was not advised as to whether an intention to commit that type of offense would constitute a burglary and could have erroneously concluded that it did. Thus, giving of IPI Criminal No. 14.06 without specifying and defining felonious conduct, the intention to commit which would have been a basis for burglary, was reversible error.” Palmer, 83 Ill. App. 3d at 737.

Clearly, the, case at bar is practically identical to Palmer. As mentioned above, defendant exhibited bizarre behavior while in the Jackson home. He repeatedly called Eugene “Daddy.” He was not armed and did not threaten the family members with harm, either by word or gesture. After leaving the Jackson home, defendant went to another house directly across the alley from the Jacksons’ residence and exhibited similar bizarre behavior. The police found him pounding on the door, wearing no jacket and with his left shoe missing. When confronted by the police officers, he was unresponsive. The jury could infer from this type of conduct that defendant was suffering from some mental delusion or was under the influence of drugs or alcohol. However, without knowing what constitutes felonious behavior, the jury was unable to determine whether defendant intended to commit a felony. Thus, the failure to define felonious conduct constitutes reversible error.

The People argue that defendant has waived his objection to the jury instructions because he failed to object at trial or in his post-trial motion. The People are correct that, as a general rule, errors in jury instructions are waived on appeal if not objected to at trial. (People v. Ogunsola (1981), 87 Ill. 2d 216, 222.) However, “substantial defects are not waived by failure to make timely objections thereto if the interests of justice require.” 107 Ill. 2d R. 451(c).

According to Illinois law, the rule of waiver is modified in certain criminal cases based on the principles of a fair trial. (Ogunsola, 87 Ill. 2d at 222; People v. Parks (1976), 65 Ill. 2d 132, 137.)

“Fundamental fairness includes, among other things, seeing to it that certain basic instructions, essential to a fair determination of the case by the jury, are given. Instructions on the elements of the offense are among these basic instructions, and we have recognized that the trial court has responsibility for ensuring that they are given. [Citation.] The failure correctly to inform the jury of the elements of the crime charged has been held to be error so grave and fundamental that the waiver rule should not apply.” (Ogunsola, 87 Ill. 2d at 222.)

Since the alleged errors in the instructions concern the absence of one of the essential elements of the crime charged and affect the fundamental fairness of the trial, the waiver rule is inapplicable to the case at bar.

Defendant’s final contention is that the trial court improperly permitted the People to amend the charge immediately prior to trial. Defendant argues that this impropriety denied him the opportunity to prepare a defense for trial. The State argues that defendant has waived this issue for review. It asserts that pursuant to People v. Enoch (1988), 122 Ill. 2d 176, in order to preserve an issue for review, both a trial objection and a written post-trial motion raising the issue are required. Defendant made an objection at trial to the amendment, but he did not raise the issue in his motion for a new trial.

“Although the general rule in Illinois is that failure by a defendant to object at trial or to raise an issue in the appellate court constitutes a waiver, it ‘is well established that in the interest of justice, a reviewing court may consider all questions which appear to be plain error or affect substantial rights of a party.’ (Emphasis added.)” (People v. Martin (1988), 119 Ill. 2d 453, 458, quoting People v. Henderson (1970), 119 Ill. App. 2d 403, 405; see also, 107 Ill. 2d R. 615.) Enoch recognized this exception. In its holding the court specifically stated that its decision does not overrule the waiver exceptions, plain error being one of the three exceptions. (Enoch, 122 Ill. 2d at 189-90.) The plain error doctrine is applicable “only when the question of guilt is close and the evidence in question might have significantly affected the outcome of the case [citations], or where the error alleged is so substantial as to reflect on the fairness or impartiality of the trial regardless of how closely balanced the evidence is [citations].” People v. Sanders (1983), 99 Ill. 2d 262, 273.

We find the second prong applicable to the present case. Formal defects in a charging document may be amended at any time if the change is not material or does not alter the nature and elements of the offense charged. (See Ill. Rev. Stat. 1985, ch. 38, pars. 111-3(3), 111-5; People v. Troutt (1977), 51 Ill. App. 3d 656, 661.) In the case at bar, the amendment changed the mental state of the offense. Not only is the mental state an essential element of residential burglary, but residential burglary with intent to commit a theft is a different offense than residential burglary with intent to commit a felony. (People v. Toolate (1984), 101 Ill. 2d 301, 308.) More importantly, it was error to allow the People to amend the charge immediately prior to trial. Such error fails to apprise defendant of the precise offense charged, with sufficient time to prepare his defense. We find that the above reflects on the fairness and impartiality of the trial; therefore, the plain error exception to the waiver rule is applicable here. There is no need to reach the other contentions raised by defendant.

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

Reversed.

McMORROW, P.J., and LINN, J., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
      In re MARRIAGE OF REBECCA CLARKE, f/k/a Rebecca Antonacci, Petitioner-Appellant, and Tino L. Antonacci, Respondent-Appellee.
    First District (4th Division)
    No. 1—89—0607
    Opinion filed February 1, 1990.

      Sewell & Brown, of Chicago (J. Roger Sewell and Burton A. Brown, of counsel), for appellant.
    Aladar F. Siles, of Arlington Heights, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Petitioner, Rebecca Antonacci, in a post-dissolution of marriage proceeding, appeals from the trial court’s order that denied her motion to vacate an agreed order, which her attorney entered into allegedly without her authority. The agreed order modified the custody arrangements of the parties’ children from joint custody in the parties to sole custody in respondent, Tino Antonacci. On appeal, Rebecca contends that the trial court erred in holding her to the terms of the agreed order.

We affirm.

Background

Rebecca and Tino were divorced in January 1983. They have three children, all minors. By agreement, the children initially were in the sole custody of Rebecca. In December 1984 the court entered another agreed order, in which the custody of the children was granted to the parties jointly. This order set out a detailed schedule of the children’s time with each parent. In January 1987 the parties again modified the custody arrangement, by agreement, keeping the joint custody provision but awarding Tino sole physical custody with visitation in Rebecca.

In January 1988 Rebecca filed a petition for change of custody and other relief. She alleged that Tino had abused the children. The court appointed Dr. Janice Friedman to evaluate the parties and the children psychologically and to give an expert opinion bearing on the issues of custody and visitation. The parties agreed to her appointment.

On July 14, 1988, Dr. Friedman prepared her written report which found in part that “Tino Antonacci appears to be the psychological parent to the three boys and for this reason should be given sole custody with Ms. Rebecca Clarke having regular and frequent visitation.” She submitted her report to the court and the parties, but it was never formally introduced as evidence.

In September 1988 Tino filed his petition to terminate joint custody, requesting sole custody of the children. The court set the case for pretrial conference on November 28, 1988, and reserved trial dates of December 14,15, and 16,1988.

At the pretrial conference, Tino, his attorney, and an attorney from the office of Rebecca’s attorney met with the court in chambers. Rebecca’s attorney withdrew her petition for change of custody and sought increased visitation with the children, plus an increase in support during the time of the additional visitation. In the agreed order that was entered during the pretrial conference, Tino was awarded sole custody of the three children and Rebecca was given increased visitation.

On December 22, the parties appeared in court on a matter involving Tino’s alleged arrearages in child support payments. Rebecca’s attorney did not then, or at any earlier time, inform the court that his client had not intended to agree to that portion of the agreed order of November 28 which gave Tino sole custody. It was not until December 27, 1988, that Rebecca filed her motion to vacate the previously entered agreed order on the grounds that her attorney had erroneously agreed to a change in the custody provisions, without her knowledge or consent.

At the hearing on her motion to vacate, Rebecca’s attorney explained to the court the circumstances leading to his mistake. He asserted he was not the usual attorney who represented Rebecca and was not familiar with the file. He had been instructed to withdraw Rebecca’s petition for change of custody and to seek additional visitation. In an affidavit attached to the motion to vacate, however, he stated that he had not been authorized to agree to the change of custody that gave sole custody to Tino and that his client wished to contest Tino’s petition.

The court heard argument on the motion to vacate but found insufficient grounds to vacate the agreed order.

Opinion

The sole issue presented is whether Rebecca should be bound by the agreed order entered at the pretrial hearing on November 28, 1988. Rebecca specifically challenges the provision of the order that changed custody of the children from joint custody in the parties to sole custody in Tino.

In general, a party who retains an attorney holds out the attorney as an authorized agent to. receive correspondence and notices, including notice of court proceedings. (County of Cook v. Schroeder (1965), 55 Ill. App. 2d 449, 205 N.E.2d 257 (holding that notice of trial to the attorney was sufficient to attribute notice to the client).) Furthermore, an attorney’s statements may bind the client to a settlement agreement when the client later claims to have misunderstood the terms of the settlement (Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co. (1976), 42 Ill. App. 3d 865, 868, 356 N.E.2d 837, 840), particularly when the settlement is made in open court or in the presence of the client. (See Szymkowski v. Szymkowski (1982), 104 Ill. App. 3d 630, 432 N.E.2d 1209.) This authority is not unlimited, however, because an attorney who is hired to represent a client in litigation is not necessarily authorized to compromise the suit. Thus in Danziger v. Pittsfield Shoe Co. (1903), 204 Ill. 145, 149, the Illinois Supreme Court stated, “Before an attorney can compromise a suit, he must have a special authority for that purpose. [Citation.] Where an attorney, employed to prosecute or defend a suit, makes an agreement for the settlement of the same out of court, and without making the agreement a part of the decree or judgment in the suit, the client will not be bound *** without proof of authority in the attorney to bind the client, or acquiescence on the part of the client after knowledge of the facts; and, in such case, there is no presumption of authority, but the burden of proof rests on the party, alleging authority, to show that fact.”

A challenge to Danziger’s continued validity was recently rejected in Kazale v. Kar-Lee Flowers (1989), 185 Ill. App. 3d 224, 228, 541 N.E.2d 219. There the court reviewed the circumstances surrounding a settlement agreement that the plaintiff’s and defendant’s attorneys negotiated by telephone. The attorneys agreed upon a sum of money to completely settle the plaintiff’s personal injury lawsuit. The record lacked any indication that the plaintiff was even aware that her attorney was negotiating a settlement. Her attorney testified that he told the defendant’s attorney that the settlement agreement was contingent on his client’s agreement. Defendant’s attorney denied being informed that the settlement was contingent on anything. The plaintiff rejected the offer, and defendant then sought to enforce the oral settlement agreement between the attorneys. The appellate court reversed the trial court’s order enforcing the settlement on the ground that defendant failed to sustain his burden of proving that the plaintiff’s attorney had authority to conclude the settlement.

The pending case is factually distinguishable from Kazale v. Kar-Lee Flowers. Here, the agreed order was fashioned during a specially set pretrial conference in the presence of the judge. While it was not an agreement reached in open court in the presence of the client, as was the situation in Szymkowski, it was not a purely private discussion between the two attorneys, either. Rebecca’s attorney had been given instructions, authorized by Rebecca, to withdraw her petition to change custody in her favor. He further had been told to seek increased visitation for Rebecca, which he did. She did not wish to vacate those portions of the order, as they in fact accorded with her wishes. What she challenged, instead, was the change from joint custody to sole custody in Tino.

In one sense, then, the issue narrows to a consideration of scope of authority. Rebecca’s attorney had been given the basic authority to settle the issues at the pretrial conference. She does not claim that she had no notice of the pretrial conference and, indeed, such notice would be presumed under County of Cook v. Schroeder. She was aware that her attorney would be attempting to resolve the matter if possible, obviating the need for a trial. She had conveyed her position and did not attend the pretrial conference. Accordingly, even if there were a misunderstanding as to the change from joint custody, it does not automatically negate her attorney’s authority to enter the order that he did. To find otherwise would subject numerous pretrial settlements and agreed orders to vacation, virtually as a matter of course.

We do not imply that there never could be a vacation of an agreed order when one provision out of several is disputed. Particularly in child custody matters, the courts must be sensitive to the best interests of the children and policy matters that go beyond the parties’ personal concerns. (See In re Marriage of Solomon (1980), 84 Ill. App. 3d 901, 405 N.E.2d 1289.) Nevertheless, the record indicates that the trial court, on motion to reconsider, closely questioned Rebecca’s attorney to ascertain exactly what relief she was seeking. She had withdrawn her petition to obtain sole custody and had only sought increased visitation. Under the custody arrangements then in effect, Tino was already acting as the parent with sole “physical custody,” with visitation rights in Rebecca. She could only point to vaguely articulated parental rights in the joint custody order of January 1987 that she has been forced to relinquish because of her attorney’s mistake. She alludes to “parental rights to make decisions regarding the care, education, religious training and control of the children;” however, there is no indication that her parental rights to participate in such decisions have been affected by the agreed order. The previous order in effect, that of January 6, 1987, had given Tino “sole physical custody” and referred to Rebecca as the noncustodial parent with visitation rights. Even though the January 6 order refers to “joint custody,” it does not define what parental rights are intended thereunder. It does not address specific decision-making issues regarding the children’s health, education, or religious training. Instead, it is primarily concerned with a detailed schedule of Rebecca’s visitation and support rights. Only one paragraph of the order addresses the mediation procedure for the parties to follow should “any conflicts arise between the parents as to any of the provisions of this Joint Custody Order or the implementation thereof.”

At oral argument Rebecca’s attorney argued that the joint-parenting rights of section 602.1 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 602.1) include the right to make decisions regarding care, education, and religious training. He claims that Rebecca did not intend to give up these rights and that placing sole custody in Tino deprives her of participation in these decisions. Accordingly, he contends that there should have been an ev-identiary hearing on whether such change was in the children’s best interests.

We do not agree. The “change” in custody does not appear to be a real change from the arrangement that was in effect before the November 28 order. Tino had sole physical custody. He would thus be primarily responsible, on a day-to-day basis, for general decisions affecting the children’s care, health, and the like. (See In re Marriage of Tisckos (1987), 161 Ill. App. 3d 302, 312, 514 N.E.2d 523.) The record reflects that the parties have been in court on various matters over the years and have a history of agreed custody/visitation orders. While it is true that joint custody and joint-parenting agreements have legal significance regarding the parents’ shared decision making, Rebecca has not pointed to any cognizable relief that she would seek in a remand for a trial on Tino’s petition for change of custody. She withdrew her own petition. She was aware that the court-appointed psychotherapist had concluded after interviewing all parties that the children’s father was the “psychological parent” who should retain physical custody and that Rebecca should have regular and frequent visitation. She has made no showing or offer of proof to establish a ground for opposing the termination of joint custody in favor of Tino’s sole custody. Neither her brief nor the record indicates that her input into the care, education, or religious training of the children has been diminished as a result of the agreed order under review. In fact, the trial court questioned her attorney on this point. The attorney assured the court that he was not aware of any past problems that the parties had concerning this type of decision making. Furthermore, neither the parties nor the court found in the record any joint-parenting agreement that would have specified each parent’s authority. Accordingly, during the hearing on the motion to vacate the court relied on its broad discretion conferred under section 602.1 to award sole custody to Tino rather than fashion a joint custody arrangement.

We conclude that Rebecca’s attorney had actual authority to negotiate a settlement on her behalf. To the extent he exceeded his express authority, by allowing the change from joint to sole custody, we find that his authority was the logical, implied extension of his express authority. We further conclude that Rebecca’s parental rights were not prejudiced by what in this case appears to be only a nominal change of custody. See Kminek v. Kminek (1975), 27 Ill. App. 3d 78, 325 N.E.2d 741 (where there is no factual dispute as to an order changing custody from the mother to the father, since the parties had so agreed, the entry of an order without notice and full inquiry by the court was not improper).

In the alternative, we find that, to the extent Rebecca’s attorney lacked authority to enter the challenged portion of the agreed order, Rebecca subsequently ratified it. Ratification requires an act indicating approval of the originally unauthorized act of the agent. Hofner v. Glenn Ingram & Co. (1985), 140 Ill. App. 3d 874, 883, 489 N.E.2d 311, 316 (“Ratification may be express or inferred and occurs where the principal, with knowledge of the material facts of the unauthorized transaction, takes a position inconsistent with non-affirmation of transaction”).

In the pending case, Rebecca does not deny that she accepted the benefits of the increased visitation and support provision of the November 28 order. This indicates her knowledge of the other provisions of the order. Her failure to object immediately allowed the previously reserved trial dates in mid-December to pass, resulting in some prejudice to Tino, who presumably would have proceeded to trial and thus obtained a disposition at that time. On December 22, moreover, her attorney appeared in court on a different matter, which concerned Tino’s alleged arrearages in child support. No mention was made at that time that the agreed order was not an accurate reflection of the parties’ agreement. It was not until December 27, 1988, that Rebecca’s attorney filed the motion to vacate the agreed order on the grounds that it had been entered into without her authority.

We cannot agree with Rebecca that the mere filing of the motion within the statutory 30-day period following entry of the November 28 order indicates a timely objection to the agreed order. That time limit simply provides the outside limit in which a court has jurisdiction to reconsider a previous order as a matter of course. In accepting the provisions of the order that benefitted her, we believe that Rebecca ratified her attorney’s authority to agree to the order. The purpose of the pretrial conference was to determine whether a trial was necessary or whether the parties could resolve their conflict by agreement. She sought, and obtained, what she wanted; Tino obtained what he wanted. We see no reason to disturb the ruling of the trial court in declining to vacate the agreed order of November 28,1988.

For the foregoing reasons, we affirm the trial court’s decision.

Affirmed.

McMORROW, P.J., and JIGANTI, J., concur.


author: JUSTICE EGAN

text:
    JOSEPH MOSS et al., Plaintiffs-Appellees, v. ILDYKO ELOFSSON, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—1958
    Opinion filed February 2, 1990.

      William J. Harte, Ltd., and Wayne & LeVine, both of Chicago (William J. Harte, Sylvia A. Sotiras, and Edward LeVine, of counsel), for appellant.
    Sanford Kahn, Ltd., of Chicago (Richard W. Christoff, of counsel), for appellees.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, Ildyko Elofsson, appeals from an order entered in a forcible entry and detainer action declaring a forfeiture in her lease and ordering her to surrender possession to the plaintiffs.

On July 29, 1987, the named plaintiff, “2450 Lake View Trust,” initiated a forcible entry and detainer action against the defendant for possession of her apartment, which is located in a cooperative building at 2450 North Lake View in Chicago. On March 29, 1988, the court granted the plaintiff’s oral motion to amend the complaint by substituting plaintiffs, Joseph Moss, Michael Reiser, Gustave A. Bermudez and Lawrence Levy, as trustees of a 1922 trust indenture for the plaintiff “2450 Lake View Trust.”

The complaint sought possession of the defendant’s apartment after a fire occurred in the apartment. The trustees claimed that the defendant had allegedly breached the lease by failing to provide the trustees access following the fire. The complaint further claimed that the defendant failed to remedy her breach within 30 days after receiving a notice of termination of tenancy.

After a bench trial, the judge entered judgment in favor of the plaintiffs for possession of the defendant’s unit.

The defendant has advanced three grounds for reversal:

1. 2450 Lake View Trust was not a legal entity with capacity to sue, and the complaint was improperly amended to substitute the trustees as plaintiffs;

2. The notice of termination served on the defendant was legally defective on its face; and

3. The evidence failed to establish a breach of the lease on the defendant’s part.

Since we have determined that the record supports the defendant’s argument on the third ground advanced, we need not address the first two, although we will discuss the notice of termination and what was done after the defendant received it.

2450 Lake View Avenue is a residential cooperative apartment building consisting of 13 floors and 11 cooperative apartment units. A trust indenture, dated July 1, 1922, governs the ownership of the building and the apartment units within it.

Although the residents jointly “own” the building, the terms of the trust indenture provide that four trustees manage the trust and actually hold legal and equitable title to the building. Non-trustee residents own certificates of interest, or shares, which give them a beneficial interest in the building and its proceeds. As in 1922, the trustees and the beneficiaries occupy the building’s eleven cooperative apartment units.

The trust indenture authorizes and directs the four trustees to maintain the property, keep the books and records, pay the bills, hire and fire employees and generally run the building. They operate essentially as a board of directors. The trustees employ the management company of Wolin-Levin, Inc., to manage the building’s day-today affairs; Robert Levin supervises the building for Wolin & Levin. The trustees also employ seven other persons, including Philip Boboc (Boboc), the resident engineer who lives on the first floor, Charles Duffy (Duffy), and Mike Dorgan (Dorgan), doormen and elevator operators.

In accordance with their explicit power to execute leases, the original trustees executed the initial lease for the ninth floor of the building on May 1, 1924. In 1980 this lease was duly assigned to Mrs. Elofsson, a native of Hungary. Consequently, she is a residential unit owner of the ninth floor.

Elofsson’s apartment is extremely valuable. It was suggested in oral argument that the property is worth at least $1 million. Of the 11 cooperative units (excluding the first-floor unit occupied by the building engineer), all but two units occupy an entire floor. The nine single-floor units are located on floors 4 through 12 and measure approximately 8,300 square feet each. The two remaining units are split-levels and are located on floors 2 and 3; they measure approximately 4,300 square feet each. The plaintiffs Moss and Bermudez occupy the smaller split-level units. Elofsson occupied the larger single unit on the ninth floor with her husband, Masud Mazhar; her son, Christian Elofsson; her baby-sitter/housekeeper, Helena, and at various times, her stepson Jamal. The lease obligated Elofsson to “allow the lessors at reasonable hours every access” to the premises.

The four trustees are the plaintiffs, Joseph Moss, Michael Keiser, Lawrence Levy and Dr. Gustave Bermudez. Joseph Moss, a non-practicing lawyer, is experienced in real estate. He had lived with his family and a maid on the third floor of the building for five years. Three years before the trial he inspected Elofsson’s apartment with a sales agent; he was interested in purchasing the unit. Because of his real estate experience, the trustees entrusted Moss with supervising the management company and with generally taking care of things concerning the building. Moss would consult with the other trustees when he thought it necessary to do so.

Michael Keiser co-owned Recycled Paper Products, a greeting card publishing company located in Chicago. He had lived on the top floor of the building for approximately eight years and had been a trustee for several years.

Lawrence Levy was chairman of the Levy Organization, which included real estate, restaurant and newsstand businesses. He had lived on the eighth floor of the building for 10 years and had been a trustee for two years.

Dr. Gustave Bermudez was a medical doctor. He had lived with his wife on the third floor of the building for 16 years and had been a trustee since 1975.

A fire occurred in Elofsson’s apartment at approximately 9 a.m. on April 30, 1987. The fire originated in a sauna room which was located off the kitchen and which had been a part of the apartment since Elofsson moved into it. Her housekeeper, Helena, had placed a towel over an electrical heater in the sauna, and the towel ignited. Elofsson ran to get the fire extinguisher, then called for the elevator and telephoned the fire department. Helena, the housekeeper, Duffy and Frank, another elevator operator, and Boboc, the maintenance engineer, attempted to help Elofsson. Boboc testified that he could not pinpoint the location of the fire, but he saw flames coming from the wood. He attempted to use the fire extinguisher for only two or three seconds before he had to get out of the sauna. He could not “handle himself” because too much smoke got into his eyes. He “fell almost down to the floor.” He felt in a “bad situation” and went to the window to breathe. The fire department came within minutes.

The fire did not spread beyond the sauna. Both Moss and Levin were notified of the fire at approximately 9:15 a.m.; they immediately proceeded to the building. The fire department had already left. When Levin entered the building’s lobby, he smelled smoke, but it was not apparent to him that there had been much smoke damage. Neither Moss nor Levin was able to see any fire damage other than smoke. There was no evidence of any structural damage to the building or to any other apartment in the building.

When Moss got to the building he could see smoke in the lobby, and Duffy informed him that the smoke came from the Elofsson apartment. Duffy, Moss and Levin went to the apartment.

When the three men exited the elevator on the ninth floor, they found the door from the elevator lobby to Elofsson’s apartment half-open. Duffy called out to Elofsson and announced their arrival. Elofsson informed them that she was not clothed and requested that they wait until she dressed. Duffy waited by the elevator, and Moss and Levin waited to enter further into the apartment. They waited between 5 and 10 minutes. Elofsson went to her bedroom, washed her hands and face, put on a robe and greeted them. Moss told her that he and Levin wanted to inspect the damage from the fire.

Moss observed that Elofsson was “properly agitated,” “a little nervous, a little anxious, angry.” Elofsson told the men to follow her; she then walked Moss and Levin back towards the kitchen while Duffy stayed at the elevator door.

Moss testified that, as the three approached the kitchen, “Mrs. Elofsson drew her finger across an imaginary line [at the entry to the kitchen] and said, ‘That’s as far as you go, no more.’ ” Moss did not wait; he turned without a word and left without seeing any damage. Although Moss saw and smelled smoke in the unit, he could not see any damage. A week after the fire, Moss told Boboc that he (Boboe) was going to be a witness. Moss “thought” that he had instructed Bo-boc to inspect the apartment the day after the fire.

Levin, on the other hand, testified that Elofsson did not give them entry to her apartment beyond the entrance foyer. He could not recall being in the kitchen; he only remembered seeing the foyer of the unit. He believed that after being asked by Elofsson to wait a few minutes, she then asked them to leave. He did not believe that Moss proceeded any further into the apartment than he did. He did not recall walking through the apartment. He was in the apartment for “maybe several minutes.” He also testified that he left the apartment -without seeing any damage from the fire. Moss, however, specifically testified that Levin walked alongside him into the apartment.

Elofsson testified that, as she walked into the kitchen, she told her housekeeper, Helena, to put a rug down because the area was extremely dirty and messy from the fire. (The plaintiffs did not dispute the condition of the floor. However, neither Moss nor Levin remembered Elofsson saying anything about wanting to clean up the area.) She also testified that Moss responded, “We haven’t got the whole day to wait.” She said, “[If you don’t wait,] [t]hen that’s how far you go.” At that point, Moss threw his keys into the air and said to Levin, “Let’s go.” Moss and Levin departed immediately without any farther words. Elofsson asked them to “Please call [her] attorney and make an appointment to come in if [they wanted] to see the damage.” Moss could not recall saying that he did not have the time to wait. Levin testified that Elofsson did tell them to call her attorney.

Both Moss and Levin admitted that they were in the apartment for only a few minutes. According to Moss only one minute elapsed from the time he walked from the apartment’s foyer to the kitchen until the time he left the apartment. He never attempted to return to the apartment after that date.

From April 30, 1987, until the time Duffy served Elofsson with a notice of termination on June 15, 1987, Moss never personally requested that Elofsson permit him into her apartment. He never instructed his managing agent, Wolin-Levin, Inc., to gain permission to enter her apartment. Similarly, Levin never personally demanded to see Elofsson’s unit after April 30, and he did not think that any of his agents demanded to do so. Levin was never asked to return to the unit, and he never did go back.

When Elofsson called for the elevator around noon on the day of the fire, Duffy asked her how bad the fire damage was. She invited him in, and they walked to the sauna together. He looked at the sauna and expressed his regrets to her. She testified that she told Duffy, “[I]f anybody else would like to see it, just bring the people up [whether] I am home or not.” Duffy was called in rebuttal and denied that either Elofsson or her husband ever told him that Moss or any of the trustees could inspect the apartment. (His denial does not specifically rebut Elofsson’s testimony.) Duffy admitted that he was in the apartment after the fire; but he said he never personally saw the damage to the sauna. He did not explain why he was in the apartment after the fire.

Elofsson’s 14-year-old son, Christian, returned from school at approximately 4 p.m. on the day of the fire. Dorgan, another doorman and elevator operator, met him in the lobby and told him about the fire. Dorgan took Christian up in the elevator and asked him to ask his mother whether he could see the fire damage. Dorgan was invited into the apartment, and Elofsson, Christian and Dorgan went into the kitchen and sauna areas. Dorgan looked at the sauna for about “thirty seconds or so,” expressed his regrets and then left. Mrs. Elofsson’s testimony corroborated that of her son. Dorgan was not called to rebut the testimony of Christian Elofsson or that of his mother.

Elofsson left the country the first weekend of May and returned June 8. She received the notice of termination on June 15. When she received the notice of termination she called her attorney, Edward LeVine, and read him the notice, which informed her as follows:

“YOU HAVE defaulted in the terms of your Proprietary Lease for the above accommodations [2450 North Lake View, Unit 9, Chicago] as follows:
YOU HAVE failed to allow the Lessors reasonable access to the aforesaid premises in violation of Article First, Paragraph 5 of the Proprietary Lease.
YOU ARE FURTHER NOTIFIED that as a result of the aforesaid defaults, your Proprietary Lease and your Right to Occupy said premises thereunder, will expire and terminate within thirty (30) days of the date of service of this notice.
UNLESS you promptly comply with the above, suit will be instituted for possession together with the costs of such proceeding.”

On LeVine’s advice, Elofsson tried to contáct Moss. She had to ask Dorgan for Moss’ telephone number. She telephoned Moss sometime between June 15 and July 5. She identified herself to a woman who answered and asked if she could leave a message for Mr. Moss. She telephoned a second time a week later and asked a woman who answered if she could speak to Mr. Moss. Moss did not come to the telephone, and Elofsson left a message for him. She was not sure if it was the same woman with whom she had previously spoken. Neither Moss nor any of the other trustees ever asked to see her apartment. She continued to pay her rent to Levin; she delivered the rent to him a couple of times when she was downtown. Moss testified that no one told him that Mrs. Elofsson had called.

Gloria Odens, a secretary employed by the defendant’s attorney, testified that she telephoned Mr. Levin on the instructions of her employer. Because Mr. Levin was not in his office she left a message with the girl at his office that she was “calling from Wayne and LeVine on behalf of Mrs. Elofsson and that it would be all right to come up and look at [Elofsson’s] apartment at 2450 Lake View at their convenience.” The judge later struck all of Odens’ testimony on the ground that it was not proper rebuttal. We believe this ruling was an abuse of discretion, but the defendant makes no issue of the ruling and the judge later accepted the testimony as though it was in the record. Levin admitted that he spoke to LeVine several times between the date of the fire and July 15. He did not relate the substance of any of the conversations. He also recalled speaking with someone from LeVine’s office.

At the close of the evidence the judge made an analysis of the evidence and what we construe to be findings of fact. He said that he had a very difficult time deciding the case. If he ruled for the plaintiffs, the defendant was in a bad position, first, because she would be forced to sell under an adverse ruling; second, because the buyers would eventually learn of the adverse ruling. He recognized the animosity between the people involved and that at least one trustee “wants to kick her out. If he could kick her out tonight, he would.” (There was some evidence of previous disputes between Elofsson and at least one other tenant.) He said that any prospective buyer would find out and that she would be “forced to sell and they [would] squeeze her on the money *** so she [would be] put in a very adverse position.”

The judge acknowledged that “it was not a reasonable time for them to inspect while [Mrs. Elofsson] was standing behind the door nude, so she told them to wait until she went and got dressed.” He said that after she got dressed, “She let them into the apartment. She led them, so I find it was a reasonable time for them to inspect. And she acknowledged their right.” However, they never determined the extent of the fire on that day within that short period of time. “Moss was looking for something to get her out. They didn’t like her, although there’s not much evidence about that *** but the trustees wanted her out. Maybe it was just Moss, but he was a trustee and maybe he was looking for things.” (Emphasis added.)

He further acknowledged that Elofsson was in a state of anxiety and was not thinking in terms of the lease. He also recognized that “Moss grabbed onto it right away because he is in the real estate business and he maybe knew that that was a default” so Moss said, “okay and tossed his keys up and said ‘good-bye.’ He was gone in a minute. ‘You don’t want to let me in, good-bye,’ and [he] walked away and walked out, and he never tried to go back again. Maybe he knew legally he had her on a breach of the lease and she knew.” The judge again recognized that there were animosities between the people and concluded, “so [Elofsson] had to be above reproach like Caesar’s wife in regard to her legal obligations.”

He believed that Elofsson went to Europe after the fire but ruled that because she had been the “last actor,” because she had stopped the inspection, “the volley-ball or the ball swung to her *** [T]he ball shifted to her to see to it that the apartment was accessible and to be inspected by proper authority.” He also indicated that he believed that Elofsson probably told Moss to contact her attorney to make an appointment to inspect her apartment, but he ruled that Moss was not obligated to do that.

The judge also indicated that he believed that Elofsson attempted to telephone Moss twice, but he held that “she had to do more than that because Moss never came. Maybe he never came because he didn’t like her or he didn’t want to because he felt ‘I’m going to wait until this 30 days goes by after June 15th and we’re going to squeeze her, we’re going to sue her.’ So she sat by and she made the two calls. That was it.” (Emphasis added.)

He believed Elofsson’s testimony that the plaintiffs’ employees came into the apartment. Specifically, one came in to read the meter which was a short distance from the sauna and that he could “kind of peek over to see what happened.” He said, “[T]hat was the inspection right there, but they were not the proper authorities to look, although they could have been delegated.” (Emphasis added.) But, he added, “There’s no evidence that the trustees delegated them to go and look and see that damage *** That was her obligation to prove of going forward [sic].” (We point out that Elofsson’s testimony that Dorgan examined thé fire damage was unrebutted.)

The judge ruled that Elofsson had violated the lease by not giving the trustees the right to inspect and that “she should have been pushing hard. She could have gone down there and knocked on [Moss’] door and said, ‘Now, look, it’s six o’clock. I know you’re home’ or connected with the doorman and said, ‘Mr. Moss, I’m not giving you any written notice, but come on in and inspect.’ *** [S]he had to do something to overcome the weight of the notice that was pressing her. *** She had to do more.” Consequently, the judge found that Elofsson did not “effectively notify or arrange an inspection where common sense or knowledge, maybe legal knowledge, was required.” After that summation he ruled that Elofsson had breached her lease by failing to provide access and that the plaintiffs were entitled to possession.

We find it impossible to reconcile the judge’s findings of fact and analysis of the evidence with his ultimate conclusion that the plaintiffs had established their right to a forfeiture. We also believe that he misconstrued the duties imposed on the parties by the lease and by the law.

The judge, in effect, held that Moss had taken advantage of the situation that unexpectedly arose which was, in military parlance, a target of opportunity, and that Moss prepared to loose a cannonade. The judge’s holding is supported by the evidence. Of particular significance is Boboc’s testimony that only one week after the fire, long before any letter of termination was sent, Moss told him that he was going to be a witness. This testimony clearly indicates that Moss had made up his mind at that time to remove Elofsson by court action.

In view of the judge’s observation of the obligations of Elofsson to act like “Caesar’s wife,” it is appropriate to discuss the obligations of Moss. During oral argument the plaintiffs’ attorney agreed with the statement made by the defendant’s attorney that Moss was a fiduciary to the defendant. But, he added, Moss was also a fiduciary to all the other beneficiaries. The plaintiffs argue that it was Moss’ duty to examine the fire damage for the benefit of the other beneficiaries; their safety was in question. As the plaintiff Levy put it, the trustees were concerned about their inability to see the damage because they could not tell if there were “systemic” problems that would affect the other people in the building. He said, “It wasn’t the amount of damage that was done, it was the threat to the life safety of everybody else who lived in the building.” Levy, who lived in the apartment just below Elofsson’s, took no steps to determine whether there was any “systemic” problem nor did he direct anyone else to inspect Elofs-son’s apartment. If, in fact, the trustees were concerned about any potential danger to the safety of the other residents, their complete inertia after the confrontation between Elofsson and Moss reflects a disregard for their fiduciary obligations to the other residents. Similarly, Moss’ perfunctory request to examine the premises and his precipitous departure do not speak well of his attitude toward the other residents. One concerned with their safety would have remonstrated with Elofsson or cajoled or begged her, or threatened her with the legal consequences. It is more reasonable that the trustees knew that there was no compelling reason to inspect the premises.

With respect to Moss’ obligation to Elofsson, as a trustee he was a fiduciary to Elofsson as a matter of law. (Carroll v. Caldwell (1957), 12 Ill. 2d 487, 495, 147 N.E.2d 69, 73.) Regardless of the nature of the trust, the obligation of a trustee to a beneficiary is the same: The trustee is charged with equitable duties toward the beneficiary. It is the trustee’s duty to serve the interest of the beneficiary with complete loyalty, excluding all self-interest. (Home Federal Savings & Loan Association v. Zarkin (1982), 89 Ill. 2d 232, 432 N.E.2d 841.) It is our judgment that the judge’s findings, which, we repeat, are supported by the record, are not findings that Moss fulfilled his fiduciary obligation to Elofsson.

The fiduciary obligation of Moss to Elofsson, however, should not becloud the primary issue, which is whether Elofsson breached the lease by refusing access at a reasonable hour. In our judgment, the record fails, as a matter of law, to show a willful breach of the agreement to permit access at reasonable hours. The term “reasonable hours” is not restricted to a reasonable time of day. Common sense dictates that it be construed to mean under “reasonable circumstances” as well. The request itself should be made in a reasonable manner. The judge acknowledged that Elofsson was in a state of anxiety and was not thinking in terms of the lease. Her mental state was understandable. We construe the judge’s remarks to mean that he believed Elofsson’s testimony as to what occurred between her and Moss and Levin. Her testimony does not disclose a refusal of access under the circumstances that would support a forfeiture.

We also believe that, as a matter of law, Elofsson made it clear, before the notice of termination had been sent, that the premises were available for inspection. We further believe that, as a matter of law, the premises were inspected pursuant to the lease.

Elofsson’s son, Christian, testified that he saw Boboc looking around in the sauna room with a flashlight about three or four days after the fire. Boboc and Duffy both admitted that they were in the apartment after the fire but could not remember why they went there. Christian Elofsson also testified that Dorgan was permitted to examine the fire damage at Dorgan’s request. Elofsson testified to the same effect. Dorgan never refuted that testimony. The judge’s remarks can be construed only as an acceptance of the testimony of Christian and Elofsson. The judge held, however, that any inspection by Boboc, Duffy or Dorgan was legally insufficient because there was no proof that the trustees had delegated authority to inspect to any of those employees. We do not understand the basis of the judge’s holding. We note that Article Second, paragraph 4, of the lease provides that the lessee shall “at all reasonable times allow the representatives of the lessors to enter and inspect the demised premises for the purpose of determining the necessity and character of any such repairs or other work.” (Emphasis added.) It does not make sense that representatives could examine the premises on certain occasions but only trustees could on other occasions. Any doubts in the language of the lease will be construed in favor of the lessee. (American National Bank & Trust Co. v. Lembessis (1969), 116 Ill. App. 2d 5, 253 N.E.2d 126.) Significantly, the notice of termination was signed by an agent of the trustees. The trustees did not take the position that so important a step could not be delegated. Finally, we refer again to Moss’ testimony that he thought he instructed Boboc to inspect the apartment the day after the fire. In sum, the overwhelming evidence establishes that proper representatives of the plaintiff did inspect the premises.

Even assuming for the sake of argument that the evidence established that the confrontation between Elofsson and Moss on the day of the fire constituted a breach on her part, and that the premises were not inspected by proper persons, we believe the judge also erred in concluding that the defendant was obligated to do more than she did after she received the notice of termination. There is nothing in the lease which spells out what steps a lessee must take to notify the lessor of attempts to cure any breach. Again, any ambiguity in the lease will be resolved in favor of the lessee. It would serve no purpose to prolong this decision by repeating the evidence which the judge apparently believed, and properly so. The record shows the defendant’s good-faith efforts to disabuse the trustees of any notion that she was denying them access to her apartment. Suffice it to say that her efforts were reasonable under the circumstances.

A party seeking to enforce a forfeiture provision bears the burden of proving that the right to a forfeiture clearly and unequivocally exists and that the exercise of forfeiture does not result in injustice. (Bocchetta v. McCourt (1983), 115 Ill. App. 3d 297, 450 N.E.2d 907.) In addition to the failure of the plaintiffs to meet their burden of proof that there was a breach, entry of a forfeiture here will result in gross injustice.

For these reasons, the judgment of the circuit court is reversed.

Reversed.

LaPORTA, P.J., and CERDA, J., concur.


author: PRESIDING JUSTICE LaPORTA

text:
    PAULINE DOLIDO, Plaintiff-Appellant, v. ZENITH RADIO CORPORATION, Defendant-Appellee.
    First District (6th Division)
    No. 1—88—3390
    Opinion filed February 2, 1990.

      Pauline Dolido, of Chicago, appellant pro se.

    Johnson & Drozdzik, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff, Pauline Dolido, is the widow of Paul Dolido, who was employed by defendant, Zenith Radio Corporation, until his death on December 29, 1979. The deceased had a group life insurance policy sponsored by defendant with Aetna Life and Casualty Insurance Company.

On July 14, 1986, plaintiff filed a pro se complaint against defendant alleging that certain unpaid worker’s compensation benefits which were due the decedent at the time of his death should be paid to her, the only heir and dependent of the deceased. Defendant filed a motion to dismiss the complaint, which was granted.

Subsequently, plaintiff retained an attorney who filed an amended complaint on her behalf which alleged that as decedent’s only heir, she was entitled to life insurance and pension plan benefits under certain company group plans, as well as his personal property and the unpaid worker’s compensation amounts due him at the time of his death. Defendant filed a motion to dismiss in lieu of an answer. The court granted defendant’s motion and ordered plaintiff to file a second amended complaint by May 26, 1987. Plaintiff failed to file the second amended complaint, and the cause was dismissed on May 5, 1988. On May 31, 1988, plaintiff’s motion to reinstate was granted and plaintiff was given leave to file a second amended complaint by June 28, 1988. Simultaneously, defendant was given leave to file its petition for sanctions under section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611) if within the time provided “plaintiff does not file a complaint stating a cause of action for which relief may be granted.”

The second amended complaint was filed by plaintiff pro se on June 24, 1988. Defendant then filed a motion to dismiss the action on August 8, 1988, and simultaneously filed its motion for section 2— 611 sanctions against the plaintiff. On August 15, 1988, plaintiff’s attorney was given leave to withdraw his representation of the plaintiff. The court also set defendant’s motions to dismiss complaint and for sanctions for hearing on October 3,1988.

On September 28, 1988, plaintiff filed a pro se motion for voluntary dismissal, which was entered and continued by the court for hearing on October 3, 1988, at the same time as defendant’s motions to dismiss and for sanctions.

At the hearing on October 3, 1988, plaintiff advised the court that she had retained an attorney, that he knew of the hearing date, that she did not know why he was not present and, when the court gave her an opportunity to phone him, she stated she had been unable to reach him. The court denied plaintiff’s request for a continuance.

The court first ruled on the plaintiff’s pro se motion for voluntary dismissal and denied the motion for her failure to allege that all costs had been paid. The court stated:

“Here is what I am going to do today. A party has a right to voluntarily dismiss. Voluntarily dismissing, of course, doesn’t prevent a court from having a sanctions hearing under 2-611.
Sanctions hearing for monetary sanctions are the only sanctions that can be imposed by the Court. Your motion to voluntarily dismiss is improper because you haven’t alleged that all costs have been paid.
So I’m going to deny your motion to voluntarily dismiss, and what I’m going to do on your motion is to dismiss this cause with prejudice and not award fees and costs. Just dismiss it with prejudice.”

Plaintiff then moved the court for a change of venue. The court denied the motion as untimely and stated:

“But, Ma’am, you have presented this motion too late. You presented it after argument and disposition.”

It should be noted that the record discloses no argument made by defense counsel at this time. The entire transcript is a colloquy between the court and the court litigant.

The court further stated:

“Ma’am, we are going to do this in a way that keeps the record very clear.
I want you to draft an order that says, ‘This cause coming on to be heard on the motion for sanctions under 2 — 611 brought by Defendant, Zenith Radio Corporation, and upon Plaintiff Dolido’s continued motion for voluntary dismissal. The motion for voluntary dismissal is denied. Plaintiff Dolido having failed to comply with 2 — 1009 of the Civil Practice law by tendering costs. And on motion for sanctions Plaintiff Dolido’s cause is dismissed with prejudice pursuant to 2 — 611 of the Civil Practice Law. No award of attorney’s fees or costs.’
And I want this in the order too: ‘Petition for a change of bench venue presented subsequent to argument and ruling on prior motions is denied as untimely.’ ***
For the reasons stated by the Movant in his 2 — 611 request for sanctions that is what the Court believes is the appropriate sanction for frivolous pleading.”

Thereafter, on October 20, 1988, pursuant to section 2 — 1203 of the Code of Civil Procedure, plaintiff moved to vacate the court’s dismissal order (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1203), which was denied.

Plaintiff now appeals and argues that the trial court’s denial of her motion to vacate the dismissal order is reversible error. Defendant argues that the court did not abuse its discretion by ordering a dismissal with prejudice as a sanction when section 2 — 611 of the Code of Civil Procedure is violated.

Section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203) provides for post-trial motions in nonjury cases. A motion to vacate is designed to alert the trial court to errors it has committed and afford an opportunity for their correction. Such motion is addressed to the trial court’s discretion. (Abbey Plumbing & Heating, Inc. v. Brown (1977), 47 Ill. App. 3d 719, 365 N.E.2d 115.) Based upon the record presented to this court, we must determine whether the trial court abused its discretion and committed a reversible error in denying plaintiff’s motion to vacate the judgment. In expressly explaining its reasoning for dismissing the action with prejudice, the court stated that plaintiff’s pleadings were frivolous and used for delay.

An examination of section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611) discloses that the permissible penalty which may be assessed for violation of the section is “an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee.” Nowhere in section 2 — 611 is dismissal of the pleading a permissible penalty. The trial judge acknowledged this in his statement on the record that “sanctions hearing for monetary sanctions are the only sanctions that can be imposed by the Court,” but then stated, “On motion for sanctions Plaintiff Dolido’s cause is dismissed with prejudice pursuant to 2 — 611 of the Civil Practice Law. No award of attorney’s fees or costs.” The written order entered on the hearing date states the court’s finding that “on this record the appropriate sanction to be imposed on the Plaintiff in this cause pursaunt [sic] to Section 2 — 611 of the Code of Civil Procedure is a finding that the dismissal of her cause ought to be WITH PREJUDICE.” The court then ordered: “2. Defendant’s motion for sanctions is allowed, in part, and Plaintiff’s cause is dismissed WITH PREJUDICE. NO award of costs or fees.” Clearly, the court erred in imposing a sanction which was impermissible under section 2 — 611, and the order of dismissal with prejudice requires reversal.

We next consider the court’s denial of plaintiffs motion to voluntarily dismiss for failure to allege that all costs had been paid or tendered to defendant. Plaintiff then explains that she was unaware of defendant’s costs and on appeal states that she was “ready, willing and able to tender costs.” Plaintiff’s motion for voluntary dismissal was first presented to the court on September 28, 1988, and continued for hearing at the same time as the other pending motions. The court addressed the motion for voluntary dismissal before addressing the substantive motions.

Section 2 — 1009(a) of the Code of Civil Procedure states in relevant part:

“(a) The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1009.)

The requirements of plaintiff’s right to voluntarily dismiss are set forth unambiguously in the statute. The motion must be made before trial or hearing begins, and before a counterclaim is filed, and plaintiff must pay costs. (In re Marriage of Wright (1980), 92 Ill. App. 3d 708, 710, 415 N.E.2d 1196.) We find plaintiff’s motion was timely filed, albeit defective for failure to allege a necessary precondition to her right to the requested remedy. A pro se litigant while traversing the procedural minefield of litigation is bound to strict compliance with the requirements of the statute. The trial court properly denied plaintiff’s motion for voluntary dismissal.

Plaintiff’s petition for change of venue was presented to the court following the trial judge’s ruling on defendant’s motion for sanctions, which we find was a ruling on substantive matter. We find no error in the trial judge’s denial of the motion for change of venue as untimely.

For the foregoing reasons, we reverse and remand for further proceedings the trial court’s order dismissing plaintiff’s complaint as a section 2 — 611 sanction.

Order reversed in part and remanded for further proceedings.

McNAMARA and EGAN, JJ., concur.