author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES W. BREWER, Defendant-Appellant.
    Third District
    No. 3 — 91—0476
    Opinion filed June 9, 1993.
    Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Larry VanDerSnick, State’s Attorney, of Cambridge (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

A jury convicted the defendant, James W. Brewer, of three counts of armed violence, three counts of armed robbery, two counts of disarming a peace officer, two counts of aggravated kidnapping, one count of home invasion, and one count of attempted aggravated kidnapping. He was thereafter sentenced as an habitual criminal to life imprisonment. He appeals, and we affirm.

The record shows that the defendant, along with three other men, committed an armed robbery of a jewelry store in Davenport, Iowa, on October 19, 1989. The four men were from Indianapolis, and after the robbery, they headed back to that city. Outside of Atkinson, Illinois, two State Police officers spotted the suspects’ vehicle. The vehicle then exited the highway and entered a service station. The officers followed the car, and when three of the men exited it, they approached them. The officers were apparently unaware that codefendant Nathan Alexander was still in the car.

Alexander then exited the car with an Uzi semiautomatic weapon. He proceeded to disarm the officers, and the four men then left the service station -with the officers’ weapons. They drove to a supermarket parking lot in order to find a car to steal and a white person to drive them. When they saw Lynette Hull getting out of a van, they approached her, took her keys, and told her she was going with them. However, she managed to escape, and while she ran into the store, the men drove away in her van.

The men then drove around looking for another vehicle to steal. Eventually, they saw a van in a garage at the residence of Kim Verstraete. The men, armed with a gun, knocked at the door of the home and when Kim answered it, they entered her home without permission. They then forced her and her three-year-old son to accompany them to Chicago. Once in Chicago, they released her and her son.

Other evidence showed that codefendant Bruce Richardson testified against the defendant. He admitted that he faced the same charges as the defendant, and that he agreed to plead guilty and testify against the defendant in exchange for a recommendation by the State that he receive only a 20-year term of imprisonment. Defense counsel wanted to cross-examine Richardson regarding the fact that he faced a potential sentence of up to 90 years. However, the trial court refused to allow such cross-examination because it would also inform the jury of the potential sentence facing the defendant. As such, defense counsel was only allowed to ask Richardson if he knew he could get substantially more time than the 20 years of imprisonment he received. Richardson acknowledged that fact.

Richardson also testified that he had prior felony convictions for robbery and auto theft and a misdemeanor conviction for possession of stolen property. Other evidence presented to the jury showed that Richardson once identified himself to the police as the defendant, and that he and the defendant got into a heated argument over the incident. Richardson also threatened to “get” the defendant and “take care” of him.

Codefendant Mevester Lyles also testified against the defendant in exchange for a plea agreement with the State. Defense counsel was once again precluded from eliciting the fact that Lyles faced a potential sentence of up to 90 years. However, evidence was presented showing that Lyles had two prior felony theft convictions and that he had been found guilty of a number of the same offenses the defendant faced in the instant case.

On appeal, the defendant first argues that the trial court erred in limiting his cross-examination of Richardson and Lyles. Specifically, he contends that the failure to allow evidence of the possible prison sentence facing the codefendants constituted reversible error.

The right to cross-examination of a witness regarding possible bias or motive is guaranteed by the Federal and State constitutions. (People v. Gonzalez (1984), 104 Ill. 2d 332, 472 N.E.2d 417.) While a defendant should be given the widest possible latitude in cross-examining a State’s witness, the form that latitude takes rests in the sound discretion of the trial court. Any decision by the trial court regarding limitation of cross-examination will not be overturned upon review absent a showing of a clear abuse of discretion resulting in manifest prejudice. People v. Roy (1988), 172 Ill. App. 3d 16, 526 N.E.2d 204.

Case law also establishes that the trial court may properly preclude any inquiry regarding specific sentences of an accomplice witness when such disclosure would also reveal the potential sentence facing the defendant. The purpose of preventing disclosure of the potential sentence facing the defendant is that such evidence is irrelevant to the jury and could possibly prejudice the State’s right to a fair trial. People v. Lake (1978), 61 Ill. App. 3d 428, 378 N.E.2d 364; People v. Portis (1986), 147 Ill. App. 3d 917, 498 N.E.2d 675; People v. Roy (1988), 172 Ill. App. 3d 16, 526 N.E.2d 204.

Contrary to the foregoing, the defendant asks this court to follow its decision in People v. Graves (1977), 54 Ill. App. 3d 1027, 370 N.E.2d 1219. In Graves, we found that the potential sentence facing an accomplice witness could be revealed even though it would also reveal to the jury the sentence facing the defendant. However, we note that in Graves, unlike in the instant case, the defendant was apparently unable to elicit any testimony regarding the accomplice’s plea agreement with the State.

We also note that while a defendant’s objective in eliciting sentencing information is to show the accomplice’s bias, this is not an unlimited right and must be balanced with other competing interests. Therefore, in light of Lake, Portis, and Roy, we decline to follow Graves to the extent that it may conflict with these decisions. We now hold that a trial court may properly preclude such evidence in cases where the record shows that the defendant was able to conduct an extensive inquiry into the nature of the plea agreement with the State.

In the case at hand, the record shows that the defendant was able to elicit considerable evidence regarding the plea agreements and possible biases of Richardson and Lyle. The defendant was allowed to introduce evidence showing that the codefendants received deals in exchange for their testimony and that they received substantially less time than they might have had they not agreed to the deals. In addition, evidence was introduced showing that Richardson may have had a grudge against the defendant and was out to “get” him.

Consequently, we find that in light of the substantial amount of evidence presented regarding the plea agreements and the wide latitude afforded the defense during cross-examination to elicit other evidence of possible bias, the trial court did not abuse its discretion in precluding evidence regarding specific sentences.

The defendant next argues that the trial court committed reversible error in allowing a witness to testify about a gun the defendant left at the witness’ home. Specifically, he alleges that the State failed to show a connection between that gun and the gun taken from one of the officers.

The record shows that the defendant was charged with disarming a police officer. Both officers Daniel Wisdom and Robert DeLaRosa identified the defendant as one of the men present when their weapons were taken from them. Officer Wisdom’s weapon was later recovered, but Officer DeLaRosa’s weapon was not. DeLaRosa described his weapon as a nine-millimeter Smith and Wesson semiautomatic that had a black rubber grip on the handle. Richardson also testified that the defendant had one of the officers’ guns in his possession.

The defendant’s cousin, Andrew Mumford, testified that on the evening of October 30 or 31, 1989, he received a call from the defendant saying that he needed his pistol. Mumford stated that he did not know what gun the defendant was talking about. However, after searching his house he found a gun. He described it as a regular handgun that had a black handle. He did not give the gun to the defendant. Instead, he threw it into the White River. Mumford noted that he knows nothing about guns, which accounted for his inability to describe the gun in detail.

The defendant objected at trial to the admission of Mumford’s testimony. On appeal, he argues that the evidence regarding the gun was irrelevant since the State failed to show a connection between the gun disposed of and the gun taken from DeLaRosa.

The basic principle that animates our law of evidence is that what is relevant is admissible. Relevant evidence means evidence having any tendency to make the existence of any fact in issue more probable than it would be without the evidence. (People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295.) Evidentiary rulings lie within the discretion of the trial judge and will not be disturbed on review absent an abuse of that discretion. People v. Boclair (1989), 129 Ill. 2d 458, 544 N.E.2d 715.

In the case at hand, we note that the evidence was admissible because it tended to prove that the defendant had possessed DeLaRosa’s gun. Here, Richardson testified that the defendant had possessed one of the officers’ guns. DeLaRosa testified that the defendant was present when his gun was taken. The evidence also showed that the gun was never recovered. Mumford’s testimony therefore tended to make it more probable that the defendant had possessed the gun in question.

While the evidence connecting the defendant to the gun and the crime may have been tenuous, such facts go to the weight of the evidence, not its admissibility. Therefore, we cannot say that the trial court abused its discretion in admitting Mumford’s testimony into evidence.

The defendant’s last argument on appeal is that the trial court erred in excluding the testimony of a witness whose testimony tended to show the bias of Richardson. The record shows that the defendant offered the testimony of Keith Graves, who would testify that the defendant and a man named Bruce came to his house on October 20 or 21,1989, to see if Graves wanted to buy some merchandise.

The defendant argued that this testimony was relevant since it corroborated the testimony of another defense witness regarding Richardson’s bias against the defendant. That witness had testified that a man named Bruce wanted the defendant to sell some merchandise for him and that Bruce had become angry with the defendant and threatened to “get” him.

On appeal, the State correctly notes that this issue has been waived because the defendant failed to include it in his motion for a new trial. In his reply brief, the defendant contends that even if the matter was waived, this court should consider it as plain error pursuant to Supreme Court Rule 615(a). 134 HI. 2d R. 615(a).

Plain error is restricted to the correction of grave errors or to situations where the case is close factually and fundamental fairness requires a new trial. People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248.

Our review of the record in the instant case reveals that the evidence was not close. Two of the defendant's accomplices testified that the defendant participated in the crimes committed. Additionally, Officers Wisdom and DeLaRosa each identified the defendant as being one of the four men involved in the incident at the service station at which they were disarmed. Finally, the evidence showed that the defendant’s fingerprint was found inside a vehicle used during the commission of the offense.

We also find that no reversible error was committed since other evidence was presented showing the bias of Richardson. In this regard, we note that the jury was presented with evidence of his plea agreement with the State. In addition, evidence was presented showing that he and the defendant had a heated argument in the past and that Richardson was out to “get” the defendant.

Therefore, since the evidence was not close and no reversible error was committed, we decline to find that the trial court’s alleged error amounted to plain error.

Accordingly, the judgment of the circuit court of Henry County is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE STOUDER JUSTICE SLATER,

license: Public Domain

text:
    JOSEPH COSTILOE, Plaintiff, v. ALLIS-CHALMERS CORPORATION et al., Defendants and Third-Party Plaintiffs-Appellees (Quantum Chemical Corporation, Third-Party Defendant-Appellant; Kelly Services, Inc., Third-Party Defendant).
    Third District
    No. 3-92-0497
    Opinion filed June 14, 1993.
    SLATER, J., concurring in part and dissenting in part.

      John R. Brandenburg (argued) and William E. Nelson, both of John R. Brandenburg & Associates, Ltd., of Chicago, for appellant.
    Robert Townsend (argued) and Thomas H. Fegan, both of Johnson & Bell, Ltd., of Chicago, for appellees Allis-Chalmers Corporation and Allis-Chalmers Leasing Services Corporation.
    Cory D. Lund, of Hinshaw & Culbertson, of Joliet, and Bruce L. Carmen (argued), of Hinshaw & Culbertson, of Chicago, for appellee Carpenter & Klein Equipment Company.
   JUSTICE STOUDER

delivered the opinion of the court:

This case comes before the court as a permissive interlocutory appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308), and concerns a borrowing employer’s liability for contribution to a manufacturer who is sued by the employer’s borrowed employee. The issue presented in this appeal is whether a borrowing employer is entitled to the limitation on the amount of its contribution liability which is given to employers generally under Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 585 N.E.2d 1023. We find that borrowing employers are entitled to the Kotecki limitation.

Joseph Costiloe was an employee of Kelly Services, Inc. (Kelly), a company in the business of providing temporary employees to various employers. Costiloe was assigned to work at Quantum Chemical Corporation’s (Quantum’s) chemical plant in Morris, Illinois. He was injured while operating a forklift at the plant. Pursuant to an agreement between Kelly and Quantum, Kelly paid Costiloe’s worker’s compensation benefits in the amount of $35,693.22.

Costiloe brought a product liability action against the forklift manufacturer, Allis-Chalmers Corporation; the forklift distributor, Allis-Chalmers Leasing Corporation; and the lessor of the forklift, Carpenter & Klein Equipment Co., alleging that defendants manufactured and distributed an unreasonably dangerous and defective product. Defendants (hereinafter third-party plaintiffs) then filed third-party complaints for contribution against Quantum and Kelly. Quantum filed a motion for summary judgment, asserting that it was not liable for contribution to the third-party plaintiffs in light of the rule set out in Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 585 N.E.2d 1023. The trial court denied the motion.

In Kotecki, our supreme court addressed the issue of an employer’s liability under contribution when sued as a third-party defendant in a product liability case brought by its employee. After discussing the competing interests of the Joint Tortfeasor Contribution Act (Ill. Rev. Stat. 1989, ch. 70, pars. 301 through 305) and the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.), the court reaffirmed the general rule that an employer’s immunity from direct suit by its employee under the Workers’ Compensation Act does not bar an action for contribution asserted against an employer by a defendant liable to the injured employee. (Kotecki, 146 Ill. 2d at 163, 585 N.E.2d at 1027; Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382.) However, to protect the employer’s interest in limiting its liability to its employee, the court adopted the so-called “Minnesota Rule,” which limits an employer’s contribution liability to an amount not greater than its liability under the Workers’ Compensation Act. The court found this rule to be the fairest and most equitable balance “between the competing interests of the employer, as a participant in the workers’ compensation system, and the equitable interests of the third-party *** in not being forced to pay more than its established fault.” Kotecki, 146 Ill. 2d at 164, 585 N.E.2d at 1027.

Third-party plaintiffs argue that Quantum, as a borrowing employer, should not be afforded protection under Kotecki. They contend that the purpose of the Kotecki holding is to ensure that employers do not have to pay more than the benefits defined by the Workers’ Compensation Act. In this case, Kelly paid Costiloe’s benefits on behalf of Quantum. Because Quantum paid nothing, third-party plaintiffs argue that the policy considerations present in Kotecki are lacking here and that Quantum should not be entitled to limit its liability to the amount of Costiloe’s worker’s compensation benefits.

We disagree with the third-party plaintiffs’ argument. The Workers’ Compensation Act provides for joint and several liability between lending and borrowing employers. (Ill. Rev. Stat. 1991, ch. 48, par. 138.1(a)(4).) Between them, the borrowing employer is primarily liable, and the lending employer may recover from the borrowing employer any benefits paid to the employee, unless there is an agreement to the contrary. Section 1(a)(4) of the Workers’ Compensation Act provides in relevant part:

“Where an employer *** loans an employee *** the liability of such loaning and borrowing employers is joint and several, provided that such loaning employer is in the absence of agreement to the contrary entitled to receive from such borrowing employer full reimbursement for all funds paid when incurred pursuant to this paragraph ***. ***
An employer whose business or enterprise or a substantial part thereof consists of hiring, procuring or furnishing employees to or for other employers *** shall be deemed a loaning employer within the meaning and provisions of this Section.” 111. Rev. Stat. 1991, ch. 48, par. 138.1(a)(4).

The parties agree that this case involves a lending/borrowing employer situation. As the borrowing employer, Quantum was primarily liable for the payment of benefits. However, Quantum and Kelly had an agreement which provided that Kelly would pay the worker’s compensation benefits for its loaned employee. This is clearly the type of “agreement to the contrary” contemplated by section 1(a)(4). This agreement, however, does not change the fact that Quantum is primarily liable for the payment of its borrowed employee’s benefits. The agreement only affected Kelly’s right of reimbursement for funds paid as a result of its joint and several liability.

The fact that Quantum and Kelly agreed that Kelly would pay the benefits does not mean that Quantum was not a participant in the worker’s compensation system. Payment of benefits was part of the bargained-for consideration in the contract between Kelly and Quantum. Quantum relied on the fact that the payment of worker’s compensation benefits constituted the extent of its liability to an injured employee. The fact that Quantum contracted with Kelly for the payment of those benefits should not affect Quantum’s potential contribution. The third-party plaintiffs seem to argue that an employer cannot take advantage of the Kotecki limitation unless that employer pays worker’s compensation benefits out of its own pocket. Adopting this argument would lead to the result that employers could not rely on Kotecki if it is the employer’s insurance carrier, not the employer itself, who pays the benefits. We do not believe that was an intended result of Kotecki.

We disagree, however, with Quantum’s argument that because it is entitled to the Kotecki limitation on liability, it is entitled to summary judgment on the contribution claims. Quantum contends that its contribution liability has been “extinguished” since that liability is limited to an amount not greater than its workers’ compensation liability, and that amount (i.e:, Costiloe’s benefits) has already been paid. Quantum misconstrues the holding in Kotecki. Kotecki does not hold that an employer who has paid benefits is not liable for contribution. On the contrary, Kotecki reaffirmed the rule set out in Doyle that employers are liable for contribution regardless of the immunity provided by sections 5(a) and 11 of the Workers’ Compensation Act (Ill. Rev. Stat. 1991, ch. 48, pars. 138.5(a), 138.11). (Kotecki, 146 Ill. 2d at 163, 585 N.E.2d at 1027.) Kotecki dealt only with the amount of contribution that an employer may be liable for in such an action. (Kotecki, 146 Ill. 2d at 160, 585 N.E.2d at 1025.) The contribution action is between the third-party plaintiff and the employer/third-party defendant. Whether or not the employer has paid benefits to its employee is irrelevant to the question of whether the employer is liable for contribution.

An employer can be held liable for contribution up to the amount of its worker’s compensation liability even if it has already paid benefits. This is evident from a review of Lambertson v. Cincinnati Corp. (1977), 312 Minn. 114, 257 N.W.2d 679, the case from which the Kotecki court adopted the Minnesota rule. In Lambert-son, the court stated that the employer/third-party defendant had previously paid its employee’s benefits. Nevertheless, the court remanded the case with instructions to grant contribution to the third-party plaintiff from the employer in an amount proportional to its percentage of negligence, but not to exceed its total worker’s compensation liability to plaintiff. (Lambertson, 312 Minn, at 130, 257 N.W.2d at 689.) Clearly, the payment of benefits does not absolve the employer from contribution liability.

Quantum points to the statement of the court in Kotecki that “[t]he language of the Workers’ Compensation Act clearly shows an intent that the employer only be required to pay an employee the statutory benefits. These limited benefits are paid in exchange for a no-fault system of recovery.” (Kotecki, 146 Ill. 2d at 165, 585 N.E.2d at 1028.) We note that, under the Minnesota rule, an employer will only pay the worker’s compensation benefits once, because even if the employer is found negligent and required to contribute the full amount of its worker’s compensation liability to a third-party plaintiff, the employer will still be able to recover the original benefits paid to its employee through its statutory lien (Ill. Rev. Stat. 1991, ch. 48, par. 138.5(b)). (See Johnson v. Raske Building Systems, Inc. (Minn. 1979), 276 N.W.2d 79 (employers held liable for contribution under the Minnesota rule still entitled to statutory lien which protects employers from double liability).) We realize that in this case Kelly paid Costiloe’s benefits and therefore Quantum has no lien. That, however, is merely a result of the contractual relationship between the parties. That contractual relationship does not change the fact that, as an employer, Quantum may be found liable for contribution up to the amount of its worker’s compensation liability.

The order of the trial court also requests that we determine whether Kelly, as a lending employer, is entitled to the Kotecki liability limitation. We find that Kelly is so entitled. As stated above, loaning and borrowing employers are jointly and severally liable for the payment of benefits to a loaned/borrowed employee (Ill. Rev. Stat. 1991, ch. 48, par. 138.1(a)(4)). Although the borrowing employer is primarily liable, both employers are subject to the same potential liability to the injured employee. We see no reason why loaning employers should be subject to unlimited contribution liability when, in fact, they are subject to the same worker’s compensation liability as other employers.

We again note, however, that limiting Kelly’s potential liability does not mean that Kelly’s liability has been “extinguished” by the payment of benefits. The third-party plaintiffs may seek contribution from Kelly in an amount not to exceed Kelly’s worker’s compensation liability. In the event Kelly is found negligent and required to pay contribution, Kelly will be protected from double liability through enforcement of its statutory lien (Ill. Rev. Stat. 1991, ch. 48, par. 138.5(b)).

A question may arise on remand as to the actual amount of contribution which may be sought from each employer by the third-party plaintiffs. As previously noted, the liability between Quantum and Kelly under the Workers’ Compensation Act is joint and several. By creating joint and several liability between borrowing and lending employers, the Workers’ Compensation Act expresses an intent that the injured worker receive that to which he is entitled, without enlarging the amount that can be recovered. Quantum and Kelly were jointly and severally liable for $35,693.22 in worker’s compensation benefits. Therefore, the total amount that the third-party plaintiffs may seek in contribution is $35,693.22

The third-party plaintiffs seem to argue that they should be entitled to seek that amount in contribution from each employer. Under this interpretation, third-party plaintiffs could theoretically recover up to $71,386.44. However, such an interpretation would be a perversion of the rule of joint and several liability. When two or more parties are jointly and severally liable for a certain amount, they may be sued together or separately. The person suing can recover the full amount from the parties jointly or from any of them separately. What cannot happen is recovery of the full amount from all of the parties. Kotecki is clear in limiting the amount of contribution from an employer to an amount not to exceed the employer’s worker’s compensation liability. In this case, that liability is a joint and several liability between Quantum and Kelly for $35,693.22. Therefore, third-party plaintiffs can seek contribution from both Quantum and Kelly, but the total amount recovered cannot exceed $35,693.22.

In summary, we affirm the order of the trial court denying Quantum’s motion for summary judgment. The trial court is directed to strike the ad damnum clauses of the third-party complaints, and to permit the third-party plaintiffs to seek contribution from Quantum and Kelly in an amount proportional to each employer’s percentage of negligence, but not to exceed a total amount of $35,693.22.

Affirmed and remanded with directions.

BRESLIN, J., concurs.

JUSTICE SLATER,

concurring in part and dissenting in part:

I am in complete agreement with the majority’s decision that both Quantum and Kelly are entitled to the Kotecki liability limitation. I disagree with my colleagues only on the issue of the actual amount of contribution which may be sought from each employer in this case. I believe that the joint and several nature of the employers’ workers’ compensation liability under the Act should not carry over to the contribution action so as to further restrain the third-party plaintiffs’ right to have liability apportioned based upon relative fault. The fact that the employers were jointly and severally liable for the payment of benefits should not entitle them to a joint limit on liability in a completely separate contribution action.

While I agree that Kelly and Quantum could not both be required to pay $35,692.23 in workers’ compensation benefits, that is nevertheless the amount of each employer’s independent compensation liability. If the contribution action was brought against Quantum only, its potential liability would be $35,693.23. I see no reason why Quantum’s potential liability for contribution should change simply because Kelly is also sued for contribution. To hold otherwise means that a borrowing employer’s contribution liability depends not only upon its degree of fault and its workers’ compensation liability, but also upon whether the lending employer is found negligent and to what degree.

I would therefore hold that the third-party plaintiffs should be entitled to seek contribution in the amount of $35,693.23 from each employer. This interpretation would not lead to a double recovery for either the third-party plaintiffs or the employee. Nor would it result in either employer facing double liability. Rather, it would further the equitable policy of allocating liability based upon relative fault.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LORY OLINGER, Defendant-Appellant.
    Third District
    No. 3—92—0259
    Opinion filed June 11, 1993.
    Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Raymond Kimbell III, State’s Attorney, of Galesburg (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a bench trial, the defendant, Lory Olinger, was convicted of two counts of perjury. She was sentenced to consecutive terms of five and three years in prison and fined $10,000. On appeal, the defendant challenges the sufficiency of the State’s evidence to support her conviction. Because we find that the State failed to prove the materiality of the defendant’s false statements, we now reverse her convictions.

On May 21, 1991, the defendant was indicted on two counts of penury. Both counts involved the defendant’s failure to list a certain asset on an affidavit of assets and liabilities. Count I alleged that the defendant filed an affidavit of assets and liabilities in a forfeiture proceeding (91 — MR—4). The defendant failed to list rental income from property located on lot No. 31, Country Elms Trailer Park, in Gales-burg. Count II alleged that the defendant filed an affidavit of assets and liabilities in a criminal proceeding against her (91 — CF—90), in which she failed to list a certain house trailer as an asset.

The defendant waived her right to a jury trial, and the matter proceeded as a bench trial on December 16 and 20, 1991, and January 20, 1992. The State called several witnesses regarding the affidavits that the defendant signed and the trailer and the income received from it. David Reid Clark, an attorney and notary public, testified that he met with the defendant on March 25, 1991, regarding the affidavit filed in the forfeiture proceeding. Clark testified that the affidavit was filed to establish indigency for the purpose of waiving the 10% bond requirement required in a forfeiture proceeding. Clark had the defendant review the information on the affidavit and then sign it. Clark then notarized and filed the affidavit, and later filed a motion to proceed without cash bond.

Clark also testified regarding the affidavit filed in the criminal proceeding. On May 20, 1991, Clark met with the defendant regarding that affidavit. The affidavit was filled out and filed for the purpose of establishing indigency so that the defendant could have the public defender appointed to represent her. The defendant began to fill out the form in Clark’s presence; Clark then left the room. The defendant’s husband then brought the signed form out to Clark. When Clark later handed the form to the prosecutor, the prosecutor asked that the form be notarized. Clark then called his secretary, had her get his notary stamp, met her halfway between his office and the courthouse, notarized the form, and then had his secretary carry the form to the prosecutor. Clark testified that, with respect to both of the affidavits, he briefly discussed the information with the defendant and informed her that she did not need to list income from an ongoing operation if it was offset by expenses.

Kenneth Nelson, a friend of the defendant, testified about a meeting he had with the defendant in January 1991, about properties to be put into his name because of potential forfeiture problems. One of these properties was the mobile home at lot 31 in Country Elm Estates. Nelson had title of the trailer transferred to him, but did not pay for it or receive anything from it. The title history of the trailer showed that the trailer went to Nelson from Marjorie Waugh. Nelson did sign one rent receipt, but did so at the defendant’s direction.

The State’s next two witnesses, Ed Smith and his wife, Donna, both testified that they recalled renting a trailer at lot 31, Country Elm Estates, from January to March 1991. They rented the trailer from the defendant and her husband. They paid $180 rent in January, February, and March, and also paid a $100 deposit in January. They moved out in April 1991.

Ruby Gonces, the resident manager at Country Elm Estates Mobile Home Park, testified that defendant called her in either December 1990 or January 1991. The defendant’s call regarded a trailer she had purchased from Rebecca Coleman, the daughter of Marjorie Waugh. Gonces testified that the defendant began paying $90 a month for lot rental and did so from January to June. The defendant told Gonces that she rented the trailer to Donna Smith in January. According to Gonces, the defendant later rented the trailer to Melissa Payne, who had to be evicted, and then sold the trailer to Ben Dragoo in July.

Melissa Payne testified that she rented the trailer from the defendant beginning on May 16. She rented the trailer after responding to an ad in the paper. The rent was to be $200 a month, with $40 to be paid by Payne and $160 by General Assistance. The defendant served Payne with an eviction notice in late June or early July; the notice mentioned nonpayment of rent.

The State called two other witnesses to testify regarding the trailer. Rebecca Johnson testified that she sold the trailer to the defendant and her husband, Jim Olinger, in December 1990. She sold the trailer for $375 and an ounce of cannabis. Ben Dragoo recalled buying the trailer from the Olingers in June 1991. He paid $1,000 for the trailer. The Olingers also showed Dragoo a receipt, indicating that they had paid taxes on the trailer.

Gregg Gummerson, president of the Galesburg Burlington Credit Union, testified regarding a loan made to the defendant. The defendant took out the loan for the purpose of purchasing a Winnebago on October 17, 1989. The total amount financed was $4,126.65, to be paid off over two years in monthly installments of $199.89 The defense objected to this testimony on relevancy grounds, because it involved property not mentioned in the indictment. The court allowed the testimony for the limited purpose of showing that she owned the property.

The defendant testified that Ken Nelson was the owner of the trailer and that she and her husband merely managed it for him. The defendant testified that, with respect to both of the affidavits, she calculated receipts and expenses and did not list anything that broke even or lost money. She stated that she did so after asking Clark a question about rental income. The defense introduced as an exhibit a summary of expenses on the trailer. The defendant testified that she also used the “plus or minus” approach with respect to the Winnebago and did not list it because of the amount owed on it. When asked on cross-examination where on the affidavit it stated to only list assets that are profitable, the defendant responded that she did not know. The State also cross-examined the defendant with respect to other assets allegedly owned by her. The defense again objected on the ground that this examination did not concern the trailer. The defendant’s husband also testified, substantially corroborating the defendant’s story. On cross-examination, he admitted that he was a convicted felon.

In rebuttal, the State produced witnesses who testified regarding a duplex owned by the defendant. The defense unsuccessfully tried to bar this testimony as irrelevant. The defense then recalled the defendant to the stand in order to explain her various expenses related to the duplex property. The defendant claimed that the property either broke even or lost money.

The court found the defendant guilty. The trial judge stated that the case turned on a question of credibility, and he found the testimony of the defendant and her husband not credible. The court sentenced the defendant to consecutive terms of five and three years’ imprisonment, and ordered her to pay a fine of $10,000. This appeal followed.

The defendant argues on appeal that her conviction must be reversed because the evidence shows that she acted on advice of counsel in filling out the affidavits, because there were irregularities in the execution of the affidavits, and because the State failed to prove the materiality of her false statements. We agree with the defendant that the State failed to prove the materiality of the omissions on the affidavits and therefore see no reason to discuss the issues regarding advice of counsel and irregularities in execution.

The charges against the defendant were brought pursuant to section 32 — 2 of the Criminal Code of 1961 (111. Rev. Stat. 1989, ch. 38, par. 32 — 2). This section defines the offense of perjury as follows:

“A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation is required, he makes a false statement, material to the issue or point in question, which he does not believe to be true.” (Ill. Rev. Stat. 1989, ch. 38, par. 32 — 2(a).)

In order to establish a perjury charge, the State must establish that the defendant made a false statement, that the false statement was material to the issue in question, and that the defendant did not believe the statement to be true. (People v. Columbo (1983), 118 Ill. App. 3d 882, 455 N.E.2d 733.) The test for the determination of materiality in a perjury prosecution is whether the false testimony has a natural tendency to influence the trier of fact on the issue or point in question. (People v. Powell (1987), 160 Ill. App. 3d 689, 513 N.E.2d 1162.) The materiality issue is a question of law for the court. Powell, 160 Ill. App. 3d 689, 513 N.E.2d 1162.

The defendant initially contends that the State failed in its burden of proof as to materiality because the State did not present argument or proof as to what the issues were in the forfeiture and criminal proceedings. Nevertheless, it is apparent that the affidavits in both proceedings were filed for the purpose of establishing indigency. Therefore, the State’s burden of proof on the materiality question was whether the defendant’s failure to list the rental income from the trailer (in the forfeiture proceeding) and the trailer itself (in the criminal proceeding) had a natural tendency to influence the court on the question of indigency. The State failed in this respect.

Initially, it must be noted that the State limited itself in the indictment to the defendant’s failure to list rental income from the trailer as of March 25, 1991 (count I), and the trailer itself (count II). We cannot, as the State wishes us to do, consider the defendant’s failure to list other property, or the defendant’s rental income in count II, or rental income from different time periods. The defendant argues that the omissions alleged in the indictment were so minimal that they could not have affected the determination of indigency. The State re-spends that, if the court could have considered those assets, the defendant might not have been found indigent. We disagree.

With respect to count I, calculating the income and expenses on the trailer, in the manner requested by the State in its brief, yields a net gain to the defendant of $123.87. The affidavit filed by the defendant showed assets of $377 per month in public aid and $23.27 in a bank account. The affidavit showed liabilities of $12,000 in bills and a $297 monthly housing expense. The State utterly failed to show how the additional income of $123.87 over a three-month period would have been material to a determination of indigency. This omission by the defendant could not have influenced the trier of fact with respect to the question of indigency.

With respect to count II, the State argues that if the defendant had listed the trailer as an asset, she might have been found nonindigent for purposes of appointed counsel. Assuming the trailer was worth $1,000, the sum for which it was sold in June 1991, the defendant’s total assets, according to the affidavit filed in the criminal proceeding, would have totaled $1,775, plus $337 per month in public aid. The defendant’s liabilities included an outstanding mortgage of $29,500 and other liabilities in the amount of $13,000. Again, the State failed to prove how the failure to list this one asset could have influenced the determination of the question of indigency.

The State went to great lengths in this proceeding to establish the falsity of the defendant’s assertion with regard to ownership of the trailer, but seemed to ignore the issue of materiality. It is not apparent from the record whether the trial judge made a finding with respect to materiality. However, considering the defendant’s financial picture, such a finding would be erroneous as a matter of law.

Because we find that the State failed in its burden of proof with respect to the materiality of the defendant’s omissions on her affidavits, we reverse the defendant’s convictions of perjury.

Reversed.

McCUSKEY, P.J., and LYTTON, J., concur.


author: JUSTICE BOWMAN

text:
      In re J.M., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. M.M. et al., Respondents-Appellants).
    Second District
    No. 2 — 92—0737
    Opinion filed May 20, 1993.

      Jose M. Diokno, P.C., of Glen Ellyn (Jose Miguel Diokno, of counsel), for appellants.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Jeffrey B. Fawell, of Fawell & Fawell, of Wheaton, guardian ad litem.

   JUSTICE BOWMAN

delivered the opinion of the court:

Respondent parents, M.M. (adoptive father), and EM. (adoptive mother), appeal from orders of the circuit court of Du Page County (1) finding their adoptive child, respondent minor, J.M., neglected under the Juvenile Court Act of 1987 (111. Rev. Stat. 1991, ch. 37, par. 802 — 3), (2) appointing a guardian without the power to consent to adoption, and (3) requiring respondent parents to cooperate with any counselling program defined by J.M.’s caretaker including at least bimonthly visitation. The respondent parents assert on appeal that the trial court erred in (1) not entering an order requiring the State to prosecute a supplemental petition alleging J.M. dependent, (2) denying the respondent parents’ section 2 — 619 (111. Rev. Stat. 1991, ch. 110, par. 2 — 619) motion to dismiss the State’s petition alleging neglect, (3) finding J.M. a neglected child, (4) finding J.M. was not a dependent child, (5) appointing for J.M. a guardian without the power to consent to adoption, and (6) entering an order requiring the respondent parents to cooperate in a counselling program including bimonthly visitation at the institution where J.M. resides. We affirm.

On September 12, 1991, the State’s Attorney for Du Page County filed a petition for adjudication of wardship on behalf of J.M., alleging that J.M. was a neglected minor in that his parents did not provide the proper or necessary support, education as required by law, or medical or other remedial care recognized under State law as necessary for a minor’s well-being, or other care necessary for his well-being, including adequate food, clothing and shelter in violation of section 2 — 3(1) of the Juvenile Court Act of 1987 (the Act) (111. Rev. Stat. 1991, ch. 37, par. 802 — 3(1)). J.M.’s adoptive parents were named as respondents on the petition. Department of Children and Family Services (DCFS) was authorized to find suitable placement for J.M. Ultimately, J.M. was placed at a children’s hospital in Urbana. The trial court appointed a guardian ad litem to represent the minor. On October 2, 1991, respondent parents moved for leave to file a supplemental petition alleging that J.M. was a dependent minor as defined by section 2 — 4(d)(1) of the Act. This petition alleged that the respondent parents wished to be relieved of all residual parental rights and responsibilities, guardianship and custody over the minor, and had “good cause” for their wish to be so relieved. 111. Rev. Stat. 1991, ch. 37, par. 802-4(l)(d).

Hearings on those two petitions were held. Respondent parents filed a motion to dismiss the neglect petition on the basis that the claim asserted against the parents was barred by affirmative matter as set forth in affidavits pursuant to section 2 — 619(a)(9) of the Civil Practice Law. (111. Rev. Stat. 1991, ch. 110, par. 2 — 619(aX9).) That motion was denied. In addressing the merits of the petitions, the trial court decided first to hear testimony on the neglect petition, and then to hear testimony on the dependency petition, although the court acknowledged that some of the evidence that would be presented would apply to both petitions. Regarding the neglect petition, the State called the father as a witness, while respondent parents introduced the testimony of a child psychiatrist and two principals of the schools that J.M. attended while living with respondent parents. As regards the dependency petition, the State put on a caseworker from Catholic Charities, while respondent parents called a caseworker from DCFS, and then both parents testified themselves. The testimony revealed the following facts.

Respondent parents were residents of Wheaton and had one natural son of their own, G.M., who was 11 years old at the time of the hearing. In 1989 they discussed adopting another child. Respondent parents were in contact with Catholic Charities about adopting a child close in age to G.M. Since they were interested in a child older than four years old, it would be termed a special-needs adoption. Through their Catholic Charities contact, they became aware that J.M. was nine years old, a candidate for adoption and was located in a foster home in Decatur. DCFS provided a history of J.M.’s family so that the respondent parents could become familiar with the case. Respondent parents were made aware that J.M.’s biological mother neglected him, his mother’s paramours abused him, and he had been in several foster homes. J.M. had a history of not sustaining good relationships with women and with children his age and seemed only to bond well with adult males. Respondent parents indicated that they would like to meet J.M., and so a meeting was set up at the DCFS office in Decatur in October 1989. The interaction between J.M. and the M. family was positive, so the visits continued. While respondent parents felt that there were some minor problems in J.M.’s behavior and habits, they felt that with time he could adapt to their family. Eventually, J.M. moved into the respondent parents’ home early in November 1989. No adoption had been finalized because an adoption may be finalized only after a six-month period of having the child in the home.

Prior to J.M.’s moving in with them, respondent parents participated in a full-day seminar on adopting special-needs children. J.M. had been previously diagnosed as having attention-deficit disorder and was taking Ritalin when he moved into respondent parents’ home. Without consulting a physician, although at the suggestion of a social worker, respondent parents took him off the medication. J.M. had been getting counselling prior to moving in with them, but on the recommendation of a social worker at the Decatur Mental Health Hospital, respondent parents decided not to send him to a counselor since he would have so many new things to adjust to in his move to Wheaton. Prior to his moving in with them, the adoptive mother contacted the principal of the school J.M. would attend and arranged for J.M. to get special education at the school. She made sure he had an individual education program (IEP) which would permit him to be taken into the special education program at the school. The respondent parents were interested in how J.M. did at the school and were cooperative with the school. In March 1990, the school psychologist did an evaluation of J.M. which was later used for an annual review done by a committee at the school. The respondent parents were made aware of the results of the evaluation. The evaluation revealed perceptual disability, confusion, and impulsivity. Furthermore, J.M. had achievement scores far below his age-appropriate level of functioning. The evaluation also revealed that J.M. had an attention-deficit disorder and social behavioral difficulties. The school suggested that J.M. should see a neurologist. Although they could not contact a neurologist who participated with the Department of Public Aid (DPA) in the Wheaton area, the respondent parents did take J.M. to a neurologist at their own expense and complied with her recommendations. It was decided at the annual review that J.M. should be transferred to a school which had a more appropriate special education program for him.

Respondent parents had been spending a substantial amount of time with J.M. He had to be taught how to bathe himself and how to groom himself. Respondent parents also taught him how to tell time, how to tie his shoes, and how to ride a bicycle. His adoptive mother spent at least a couple of hours each day helping him with homework, math, or reading. There were times J.M. and G.M. got along and played as brothers for hours, and other times that they did not get along. J.M. had problems getting along with his peers; he would try to hold hands with his peers or hug them, as he sought approval, and this alienated other children. At times, he was very withdrawn and would stay in his room. At this time, he seemed to respond to both parents. Respondent parents seemed to think any problems he was having were “adjustment” problems due to all the recent changes in his life.

Respondent parents secured a judgment of adoption of J.M. on May 4, 1990, in Cook County. Respondent parents had an agreement with the State that services for J.M. would be available through DPA. During the summer of 1990, J.M. attended a special education summer program for half-day sessions during one month of the summer. The remainder of the summer, he participated in another academic program which consisted of one-hour sessions, five days a week. He was showing progress in his reading level and math acumen from the time when he first moved in with the M. family. His adoptive father indicated that he thought that J.M. was adjusting to life with his new family.

The family took vacations together. For Christmas 1989, all four of the M.’s went for two weeks to New Orleans to visit family, an annual trip made by the M. family. J.M. was welcomed by his extended family, got plenty of gifts, and seemed to enjoy meeting everyone. In the summer of 1990, the family flew to Florida and went to Disney World for a week. There, J.M. presented some minor disciplinary problems. Around that time, it was becoming evident that J.M. was more interested in talking to his adoptive father than to his adoptive brother or adoptive mother.

For the school year 1990-1991, J.M. started at a different public school which had a special education program more suited to his needs. At that time, J.M. was getting more “aggressive” with respect to other children and more obstinate about doing his homework. J.M. refused to do his homework. After consulting his pediatrician and teacher, respondent parents complied with the teacher’s recommendations about how to encourage modifications in his behavior. The family went to New Orleans for Christmas 1990. At that time, it was evident that discipline was becoming more of a problem with J.M. During the trip to New Orleans in the family van, he refused to go to the bathroom during rest stops and subsequently urinated all over himself in the van. This was the first incident in a pattern of incidents in which J.M. wet his pants and defecated in his pants which occurred in the beginning of 1991. During the first half of 1991, J.M. gradually verbally related progressively less to his adoptive mother. In June 1991, the adoptive father and G.M. went to Detroit for four days together on a business trip. On the second day while they were away, J.M. came out of his room, where he was spending most of his time, and informed his adoptive mother that he did not want to live in the M. house anymore, nor did he want to have the M. family as his family. He stated that he wanted to return to his biological mother in Decatur. While the adoptive father and G.M. were away, J.M. repeated these things several times to his adoptive mother.

In January 1991, when it became evident that J.M. was experiencing more behavioral problems, the adoptive father called the DCFS caseworker in Decatur to ask for services. She gave him a list of psychologists to call. Eventually, J.M. was referred to a neurologist in February. This neurologist suggested that J.M. be seen by a psychiatrist. Instead of seeing J.M., the psychiatrist referred the family to a psychologist. The psychologist saw each member of the family once, and J.M. twice, and then recommended that J.M. have an extensive neurological and psychiatric examination at an adolescent medical facility. The M. family paid for these consultations as DPA did not cover visits to this neurologist or psychologist. The adoptive father called DCFS to find out if there was a DPA facility at which such an evaluation could be done. The evaluation was estimated to run from $3,000 to $4,000 per week for three to six weeks. At one point the M. family considered paying for the evaluation, although eventually the hospital bills were paid by DPA. Eventually, the adoptive father identified a hospital at which the evaluation could take place, made arrangements, and took J.M. there the first week of August 1991.

At the hospital, J.M. was in the primary care of the medical director of the adolescent psychiatric unit and was evaluated on a neurological and psychological basis. This doctor was the child psychiatrist who testified on behalf of respondent parents. She led a team of professionals who evaluated J.M. She prepared a discharge report which summarized the results from the neurological tests and the psychological tests. The evaluation led to the conclusion that J.M. was emotionally disturbed and was not neurologically or genetically disturbed. The opinion was that he had profound problems forming attachments to other people that would allow him to feel comfortable in age-appropriate situations. The recommendation was that he would be best served in an institutional setting until he was able to support himself, as there he would not identify with a parent who might let him down, as so many had done in the past. In such a setting, he would identify with the institution, and would not identify with a single person such as a parent who has other responsibilities and might have cause to turn his or her attention or affection away from J.M. The doctor met with the respondent parents several times through the three- to four-week evaluation. The recommendation as to institutionalization was communicated to the respondent parents during one of these sessions.

Before J.M. was admitted to the hospital, he had made it clear to respondent parents that he no longer wished to live with them. As a result of this, respondent parents consulted several agencies to try to resolve whether they could relinquish rights to J.M. to the State. They consulted DCFS, the College of Du Page Intervention Service, the Cook County public guardian’s office and the Cook County public defender’s office. The contact in the public defender’s office suggested that they further discuss the situation. By that time, J.M. was undergoing evaluation at the hospital. The psychiatrist had already suggested that J.M. not return to the M. home. The contact at the public defender’s office got in contact with the State’s Attorney’s office, and together they arranged for there to be a hearing in which evidence would be presented. Respondent father testified that he anticipated that at this hearing the custody of J.M. would go back to the State, and the adoption would be vacated by Cook County.

The adoptive father related this development to the psychiatrist heading the team that was evaluating J.M. at the hospital. They set up a meeting between J.M. and the M. family to let him know he would not be coming back to live with them. It was the suggestion of the psychiatrist that they meet with him to say goodbye. The psychiatrist said that if arrangements could not be made to pick up J.M. by his release date, then she would notify DCFS to report that he was left at the hospital.

After that meeting, but before the court proceedings, the Cook County public defender’s office informed the respondent parents that there would be no wardship proceeding in Cook County because the respondents were not residents of Cook County. The adoptive father contacted several agencies in Du Page County, and he testified that after relating the situation to someone in the probation office the recommendation was made that the respondent parents pick up J.M. at the hospital and abandon him at a police station. The respondent parents did not believe that such an action was appropriate, yet they had been told by the psychiatrist that it would be detrimental for J.M. and the rest of the family for them to pick him up at the hospital and bring him home after having said goodbye. So the respondent parents did not pick up J.M. from the hospital, and he was eventually taken into custody by DCFS. The Du Page County State’s Attorney filed its petition alleging neglect on September 12, 1991. Respondent parents filed a supplemental petition alleging dependency on October 2, 1991. Hearings were held on the matter late in 1991 and early in 1992. On April 22, 1992, the trial court held that J.M. was a neglected child and was not a dependent child. On June 3, 1992, a guardian was appointed by the trial court, and the trial court ordered respondent parents to participate in counselling and visitation with J.M. J.M. is now in DCFS’ custody and resides at a children’s hospital in Urbana.

The first issue raised on appeal is whether the trial court erred in not ordering the State’s Attorney to prosecute the respondent parents’ supplemental petition alleging J.M. dependent. Before addressing the merits of that issue, we note that the State and the guardian ad litem argue that respondent parents’ counsel waived this issue by his display to the trial court of his willingness to prosecute the petition. Respondent parents’ counsel argues that he indicated a willingness to file the petition to the trial court and indicated a desire for the trial court to order the State’s Attorney to prosecute the petition.

We have observed from the record that colloquies in the trial court on two occasions are pertinent to the waiver of this issue:

“MR. DIOKNO [counsel for respondent parents]: Judge, *** I have also filed *** the motion for leave to file a supplemental dependency petition or for an order directing the filing of prosecution of a dependency petition by Du Page County State’s Attorney’s Office, which I set for this morning’s hearing also.
THE COURT: Leave granted to file it.
THE COURT: *** Now, let me ask you first, Mr. Collins, are you prepared to respond this morning to either of these?
MR. COLLINS [assistant State’s Attorney]: Yes, your Honor. As to the motion that the State’s Attorney prosecute a supplemental dependency petition, we would decline to do so.
THE COURT: Mr. Diokno, unless you have some case law to persuade me otherwise, I was going to say I would, in the alternative, of course grant you leave to file your supplemental *** dependency petition itself.
MR. DIOKNO: Judge, either way would be fine with us. We do have it prepared, a supplemental petition which is verified with supporting affidavits, which we could tender to the Court this morning as well as copies to the attorneys involved.”

On the basis of that colloquy, the State and the guardian ad litem argue that the respondent parents’ counsel agreed to prosecute the dependency petition and therefore the issue as to ordering the State’s Attorney to prosecute the petition is waived. However, there is other discussion in the record that indicates the issue was not waived by the respondent parents’ counsel. At a later hearing, the following colloquy occurred:

“THE COURT: I don’t know whether I expressly ruled at some time, Mr. Diokno, orally on that part of the dependency petition, which asked that the State be obliged to prosecute. Maybe you can refresh my memory on that.
MR. DIOKNO: My interpretation of the case law with respect to an independent, so to speak, filing was that the Court could either direct the filing or the prosecution of a petition in Juvenile Court.
And it was based on my interpretation of the case law—
THE COURT: I agree with you, the Court can do that.
MR. DIOKNO: And I was just working from the interpretation of the statute that does allow a filing by any person other than the State’s Attorney’s Office.
THE COURT: However, at this time I’m denying that portion of the, I believe it was the motion for leave to file a dependency or supplementary petition. I’m denying that portion which asks that the State’s Attorney’s Office be directed to carry the burden to prosecute, of taking forward that petition.”

On the basis of that colloquy, we determine that the respondent parents’ counsel did indicate to the trial court that he wished the court to order the State to prosecute the dependency petition, and thus the issue was not waived by the counsel for respondent parents.

On appeal, respondent parents argue that the trial court erred in not ordering the Du Page County State’s Attorney to prosecute the dependency petition. The State and the guardian ad litem argue that People ex rel. Davis v. Vazquez (1982), 92 Ill. 2d 132, and the other cases cited by respondent parents do not stand for the proposition that the trial court has the authority to order the State’s Attorney to prosecute a petition filed under the Act. Ill. Rev. Stat. 1991, ch. 37, par. 801 — 1 et seq.

We first look to the statute for guidance as to the authority of the court to order the State’s Attorney to prosecute a juvenile petition. Under the general provisions of the Act, we note that the statute identifies a general role for the State’s Attorney: “The State’s Attorneys of the several counties shall represent the people of the State of Illinois in proceedings under this Act in their respective counties.” (Ill. Rev. Stat. 1991, ch. 37, par. 801 — 6.) However, the filing of petitions is not limited to the State’s Attorney: “Any adult person, any agency or association by its representative may file, or the court on its own motion may direct the filing through the State’s Attorney of a petition in respect of a minor under this Act.” (Ill. Rev. Stat. 1991, ch. 37, par. 802 — 13(1).) Thus, it is clear that the court may order the State’s Attorney to file a petition in respect of a minor under the Act.

According to Vazquez, the ordering of the State’s Attorney to file a petition in respect of a minor is not an impermissible exercise by the judicial branch of powers belonging exclusively to the executive branch and thus does not violate article II, section 1, of the Illinois Constitution. (Vazquez, 92 Ill. 2d at 151.) Furthermore, the Illinois Appellate Court has extended Vazquez and held that a trial court has the power to order the State’s Attorney to prosecute a petition under the Juvenile Court Act. Sullivan v. Sullivan (1982), 110 Ill. App. 3d 714, 720-21.

Thus, the trial court did have the power to order the State’s Attorney to prosecute the dependency petition. Respondent parents argue that the trial court erred in not ordering the State’s Attorney to prosecute the petition. We determine that no error occurred. This is because the action had been initiated by the State’s Attorney’s filing of the neglect petition. The State’s Attorney had already taken the position that J.M. was a neglected child. Under these circumstances, the determination of J.M. as a neglected child or the determination of J.M. as a dependent child were mutually exclusive outcomes. Thus, it would have put the State’s Attorney in a conflict of interest position to have to prosecute both petitions. We determine that it was not trial court error not to order the State’s Attorney to prosecute the dependency petition.

The next issue on appeal is whether the trial court erred in denying the parents’ motion to dismiss because the claim asserted against defendant is barred by affirmative matter avoiding the legal effect of the claim pursuant to section 2 — 619(aX9). (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(aX9).) Respondent parents supported their motion by attaching affidavits from each adoptive parent. The State responds by questioning the applicability of a section 2 — 619 motion under the Act, since proceedings under the Act do not fit into the classic scheme of civil litigation between two parties. While cases dealing with section 2 — 619 motions in the context of the Act are not evident, we note that proceedings dealing with dependency and neglect under the Act are considered civil in nature. (People v. Davis (1973), 11 Ill. App. 3d 775, 778.) Furthermore, certain provisions of the Civil Practice Law are applicable to juvenile proceedings. (Ill. Rev. Stat. 1991, ch. 110, art. II; Davis, 11 Ill. App. 3d at 778.) Thus, we determine that a section 2 — 619 motion may be considered by the trial court under the Act.

However, we note that a section 2 — 619 motion to dismiss is analogous to a motion for summary judgment. The Historical and Practice Notes indicate that a motion to dismiss pursuant to section 2 — 619 is “a summary disposition of issues of law or of easily proved issues of fact, with a reservation of jury trial as to disputed questions of fact. *** This amounts to a summary judgment procedure on behalf of the defendant, or on behalf of the plaintiff.” (Ill. Ann. Stat., ch. 110, par. 2 — 619, Historical & Practice Notes, at 662 (Smith-Hurd 1983).) A denial of a motion for summary judgment is not reviewable on appeal because the result of such denial merges with the trial that follows. (Casson v. Nash (1977), 54 Ill. App. 3d 783, aff’d (1978), 74 Ill. 2d 164.) Similarly, it is not proper to raise the denial of a section 2 — 619 motion on appeal, as the evidence was completely presented to the trier of fact during trial, and to overturn the judgment on less evidence, that is, in this case only affidavits, would be improper. (Paulson v. Suson (1981), 97 Ill. App. 3d 326, 328.) Therefore we need not address the issue of error in the trial court’s denial of the section 2 — 619 motion.

Next, respondent parents contend that the trial court erred in determining that J.M. was a neglected child. They contend that they did all they could for J.M. They assert that they refused to pick him up from the hospital on the basis of the psychiatrist’s opinion that, since he would no longer live with them, it would be in J.M.’s best interest to leave him at the hospital until he could be taken into DCFS’ custody. The State and the guardian ad litem argue that clearly enough evidence was presented by the State to prove that J.M. was abandoned by his adoptive parents and they had vowed to no longer provide for him. The guardian ad litem posits that although the respondent parents may subjectively feel that their actions are in everyone’s best interests, in Illinois, neglect encompasses both wilful and unintentional disregard for parental duties.

The Act provides, in pertinent part, that a neglected minor includes a person under 18 years of age

“whose parent or other person responsible for the minor’s welfare does not provide the proper or necessary support, education as required by law, or medical or other remedial care recognized under State law as necessary for a minor’s well-being, or other care necessary for his or her well-being, including adequate food, clothing and shelter, or who is abandoned by his or her parents or other person responsible for the minor’s welfare.” (Ill. Rev. Stat. 1991, ch. 37, par. 802 — 3(a).)

In general, “neglect” is considered to be the failure by a responsible adult to exercise the care that circumstances justly demand and encompasses both wilful and unintentional disregard of parental duty. (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 624.) The term is not one of “fixed and measured meaning” and takes its content from the specific circumstances of each case. (Labrenz, 411 Ill. at 624; In re Stilley (1977), 66 Ill. 2d 515, 520; In re B.T. (1990), 204 Ill. App. 3d 277, 280.) In dependency and neglect proceedings, both the State’s Attorney and the court are charged with the duty of ensuring that at each step of the wardship adjudication process the best interests of the minor, the minor’s family, and the community are served. (In re J.J. (1991), 142 Ill. 2d 1, 9; In re A.F. (1991), 234 Ill. App. 3d 1010, 1014.) Such proceedings are sui generis. ((In re B.T., 204 Ill. App. 3d at 280.) The State has the burden of proving the neglect alleged in a wardship petition by a preponderance of the evidence. (In re B.T., 204 Ill. App. 3d at 280.) The trial court’s determination will not be disturbed on appeal unless it is against the manifest weight of the evidence. In re Stilley, 66 Ill. 2d at 520; In re S.D. (1991), 220 Ill. App. 3d 498, 502; In re B.T., 204 Ill. App. 3d at 280.

Based upon our review of the record, we conclude that the State’s evidence was sufficient to prove that respondent parents neglected J.M. by failing to provide the proper care and support necessary for his well-being, and that they abandoned him. The State called respondent’s adoptive father to testify as a State’s witness. He testified that he did not pick up his son, J.M., from the hospital on his release date. He testified that in October 1991, after J.M. was placed in a foster home by DCFS, respondent father visited J.M. and brought him money for a haircut and some clothing. Since October 1991, the respondent parents have not brought J.M. clothing or money. Respondent father declared that they have no intention of providing shelter, clothing, food, education, medical or remedial care, or emotional support for J.M. in the future. In our view, this evidence was sufficient to prove the State’s allegation that respondent parents neglected J.M. by failing to provide the care and support necessary for his welfare. Thus, the trial court was correct in finding J.M. to be a neglected minor.

Respondent parents argue that the trial court erred in rendering its decision on the neglect petition by asking the question of whether the dependency allegations override the neglect petition. We note that the trial court indicated some of its reasoning in the following colloquy:

“As for the initial and underlying petition by the State, I do find proven. And, in fact, I think, as I observed earlier, it is virtually uncontested as to the underlying facts on the neglect allegation. And the legal question all along has been whether or not, in effect, the dependency allegations could override it.
I do find then that the original petition has been proven. I do accordingly find the respondent minor, [J.M.], to be a neglected minor within the meaning of the Section 802 — 3 sub. 1, and there is an adjudication of wardship.”

We may sustain the trial court’s decision on any grounds in the record, regardless of whether the trial court relied on those grounds, and we do so sustain. Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 502; Schaumburg State Bank v. Bank of Wheaton (1990), 197 Ill. App. 3d 713, 719.

Respondent parents next argue that the trial court erred in denying their supplemental petition alleging J.M. a dependent minor and that the record shows that they satisfied the “good cause” requirement of the statute. A trial court’s determination on a dependency petition shall not be disturbed unless it is against the manifest weight of the evidence. (Petition of Breger v. Seymour (1966), 74 Ill. App. 2d 197, 202.) The pertinent portion of the Act defines a dependent minor as a person under 18 years of age

“(a) who is without a parent, guardian or legal custodian;
(b) who is without proper care because of the physical or mental disability of his parent, guardian or custodian; or
(c) who is without proper medical or other remedial care recognized under State law or other care necessary for his or her well being [sic] through no fault, neglect or lack of concern by his parents, guardian or custodian, provided that no order may be made terminating parental rights, nor may a minor be removed from the custody of his or her parents for longer than 6 months, pursuant to an adjudication as a dependent minor under this subsection (c); or
(d) who has a parent, guardian or legal custodian who with good cause wishes to be relieved of all residual parental rights and responsibilities, guardianship or custody, and who desires the appointment of a guardian of the person with power to consent to the adoption of the minor under Section 2 — 29.” Ill. Rev. Stat. 1991, ch. 37, par. 802 — 4.

All parties correctly note that “good cause,” under section 2 — 4(d) of the Act, has not yet been interpreted at the appellate court level, and thus each party puts forth its interpretation of what constitutes “good cause.” Respondent parents assert that they were advised that it would be in J.M.’s best interest for him to live in an institutional setting, and thus they seek to relinquish all rights and responsibilities toward him with “good cause.” The State argues that “good cause” should encompass an expression of good-faith performance and because the record shows that respondent parents did not show good faith in their care of J.M., “good cause” has not been demonstrated and J.M. cannot be adjudicated a dependent child under the statute. The guardian ad litem argues that respondent parents did not demonstrate “good cause” in their desire permanently to disavow themselves of the rights and responsibilities of caring for J.M. as there are less extreme measures such as the use of the “no-fault” dependency provision of the statute which would give them six months to be relieved of the custody of J.M. Ill. Rev. Stat. 1991, ch. 37, par. 802— 4(c).

Given that one of the purposes of the Act is “to preserve and strengthen the minor’s family ties whenever possible,” we determine that the language “good cause” in the context of relinquishing parental rights has a restricted application. (111. Rev. Stat. 1991, ch. 37, par. 801 — 2(1).) To construe “good cause” so as to allow a child to be turned over to the State child welfare system simply because he needed to be in residential placement for some time would not be consistent with the purposes of the Act. We agree that “good cause” should, in part, encompass an expression of good-faith effort.

If “good cause” encompasses an expression of good-faith effort, respondent parents have not consistently demonstrated that. Clearly, their conduct toward J.M. when he was living in their home was to be commended and was in good faith. The record reveals that they took the minor into their lives and gave him family nurturance and support. However, the respondent parents’ actions revealed a change in attitude. The fact that they took a recommendation of extended institutional care for J.M. as an opportunity to try to relinquish all parental rights and responsibilities does not demonstrate good faith and cannot be condoned under the auspices of the Act. Thus, in this decision to abandon J.M., the respondent parents did not give the appearance of acting in good faith, and this undermines their claims of acting in J.M.’s best interest. Although not considered a factor in our analysis, the appearance of a change in their attitude is reinforced by their refusal to participate in counselling efforts with J.M. in institutional placement as discussed below. We determine that the respondent parents have not demonstrated that they are relinquishing their rights and responsibilities for “good cause.” Thus, we determine that the trial court’s determination that J.M. was not dependent under subsection 2 — 4(d) was not against the manifest weight of the evidence.

In their discussion of “good cause,” both the guardian ad litem and the State’s Attorney cite In re A.F. as an analogous case under the Act and to illustrate an alternative which respondent parents in this case did not pursue. In re A.F. concerned a 16-year-old who was emotionally disturbed and adjudicated dependent under the no-fault dependency provision. (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 4(lXc).) Under this provision, A.F. was to stay in a foster home in DCFS’ custody for six months and then be returned to his parents’ custody. His parents effectively abandoned him. (In re A.F., 234 Ill. App. 3d at 1012.) The State and DCFS moved to vacate guardianship of A.F., terminate wardship, and return him to his parents’ custody. The public guardian moved the trial court to direct the State to file a second petition for adjudication of wardship on the grounds of parental neglect. The trial court denied all of these motions. The public guardian appealed, arguing that the trial court should have directed the State to file a petition for adjudication of wardship on the grounds that A.F. was neglected and abandoned. The appellate court reversed, finding that, based upon A.F.’s parents’ failure to maintain contact with him and their alleged lack of concern for his well-being, the trial court should have granted A.F.’s request to direct the State to file a petition for adjudication of wardship. (In re A.F., 234 Ill. App. 3d at 1016.) While we agree that respondent parents in the present case could have pursued a dependency petition under the no-fault dependency provision as was done in In re A.F. (Ill. Rev. Stat. 1991, ch. 37, par. 802 — 4(l)(c)), we note that what they could have done is not at issue here. Furthermore, we believe that In re A.F. is not applicable to the “good cause” analysis here because no such analysis was made in that case.

The next issue raised by the respondent parents on appeal is the alleged error of the trial court in appointing for J.M. a guardian without the power to consent to adoption. The respondent parents contend that the court must consider (1) whether the parents voluntarily relinquish rights and responsibilities toward their child, and (2) whether it is in the best interest of the child to have a guardian with the power to consent to adoption appointed. The respondent parents assert that, in this case, it was made clear to the court that they willingly will give up their parental rights to J.M. Also, the expert testimony of the psychiatrist that was on the team that evaluated J.M. made it clear that it is in his best interest, the parents assert, that he never see them again. Furthermore, J.M. is now in contact with his biological brother at his residential placement, and respondent parents assert that for him to see them now would cause more emotional and psychological harm. Thus, the parents assert, the trial court’s decision to deny their request to sever the familial relationship with J.M. is an abuse of discretion. Both the State and the guardian ad litem argue that the trial court’s decision was no abuse of discretion as it is in J.M.’s best interest to appoint a guardian without the power to consent to adoption and such a decision is most consistent with the purposes of the Act.

Trial courts have been given wide discretion in determining the appropriate disposition in juvenile cases, and unless an abuse of discretion is demonstrated, the trial court’s disposition should not be reversed. (In re T.A.C. (1985), 138 Ill. App. 3d 794, 798.) When construing the Act in concert with the Adoption Act, it is clear that when the child is a ward of the court, it is the order appointing the guardian with the power to consent to adoption that is the definitive act which terminates the rights of the parents. In re M.M. (1992), 226 Ill. App. 3d 202, 209-10.

We find respondent parents’ position untenable. It is true that the psychiatrist who participated on the team which evaluated J.M. at the hospital told the respondent parents that after saying goodbye to J.M., it would be detrimental to them and to him to bring him back to their home. Yet nowhere in her testimony was there a statement that they should relinquish all ties with J.M. She recommended that he live in an institutional placement “that is family like, but not a family.” Furthermore, the psychiatrist testified that the respondent parents told her prior to J.M.’s discharge date that they did not want him back in their house, and this bore on her opinion that J.M. should not be brought back to the M. home after saying goodbye. While that fact did not bear on her opinion about what was best for him, she had to address their unwillingness to take him back.

One of the underlying purposes of the Act is to strengthen family ties whenever possible. To terminate the rights of respondent parents at this point would have severed forever the ties between the M. family and J.M. We determine that the trial court did not abuse its discretion in not appointing a guardian with the power to consent to adoption.

Finally, respondent parents assert that the trial court erred in entering an order requiring the respondent parents to cooperate in a counselling program defined by the hospital in which J.M. now resides, including at least bimonthly visitations because it is not in J.M.’s best interest. Respondent parents assert again that, based upon the advice of the psychiatrist that evaluated J.M., they feel it would not be in his best interest for them to keep in contact with him. The State asserts that it is in his best interest for his adoptive family to keep in contact with him, and the guardian ad litem urges that the order for them to visit him and participate in counselling with him is consistent with the purposes of the Act.

We determine that it was not an abuse of discretion for the trial court to order such participation in counselling and visitation. The reasons that support this order are the same reasons that support the appointment of a guardian without the power to consent to adoption. To reiterate, such an order is consistent with the purposes of the Act. Furthermore, the psychiatrist did not urge that all family ties be severed between J.M. and his adoptive family. Thus, we affirm the trial court’s order to the respondent parents to participate in counselling and to make bimonthly visits to J.M.

The orders of the trial court which have been discussed in this opinion are affirmed.

Affirmed.

McLaren and COLWELL, JJ., concur.


author: JUSTICE QUETSCH

text:
    INDIANA INSURANCE COMPANY, Plaintiff-Appellee, v. HYDRA CORPORATION, Defendant-Appellant.
    Second District
    No. 2 — 92—1197
    Opinion filed June 11, 1993.

      Thomas A. Morris, Jr., of Brydges, Riseborough, Morris, Franke & Miller, of Chicago, and Brydges, Riseborough, Morris, Franke & Miller, of Waukegan (Janine H. Moffatt, of counsel), for appellant.
    Condon & Cook, of Chicago (Paul S. Festenstein, of counsel), for appellee.
   JUSTICE QUETSCH

delivered the opinion of the court:

Defendant, Hydra Corporation (Hydra), appeals from a judgment on the pleadings entered against it in favor of plaintiff, Indiana Insurance Company (Indiana). The trial court held that Hydra’s alleged breach of contract with a third party, B.K. Production Specialties (B.K.), did not constitute an “occurrence” under either of the insurance policies issued to Hydra by Indiana. Therefore, Indiana had no duty to defend or indemnify Hydra for property damage arising out of that alleged breach of contract.

Hydra contends on appeal that: (1) the facts and circumstances giving rise to the litigation filed by B.K. against Hydra constitute an occurrence under the policies of insurance issued by Indiana; (2) Indiana is estopped from raising any coverage issues, exclusions or defenses; and (3) the trial court should have allowed Hydra leave to file an amended counterclaim prior to the granting of judgment on the pleadings. We affirm the trial court.

The facts of this case, as alleged in B.K.’s first amended complaint and the arbitrator’s award attached as an exhibit thereto, are as follows. On May 1, 1987, Hydra contracted to build an industrial building for B.K. That contract provided for arbitration in the event of a dispute between the parties relating to the contract document or the breach thereof. B.K. subsequently filed a notice of demand for arbitration, claiming that numerous cracks had appeared on the surface of the concrete flooring. Further, the exterior of the building had developed an unsightly appearance due to loose paint. The arbitrator ordered Hydra to make repairs and to pay B.K. $3,000 for loss of production profits.

Hydra did not make the repairs, and B.K. filed a complaint seeking enforcement of the arbitration award or, alternatively, damages. B.K. also sought additional damages for Hydra’s allegedly willful failure to comply with the arbitration award, which exacerbated the construction defects and diminished the value of B.K.’s property. Hydra tendered B.K.’s first amended complaint to Indiana for the purposes of defense and indemnity. The coverage clauses of the policies issued by Indiana to Hydra, and attached as an exhibit to Indiana’s complaint for declaratory judgment, provide, in relevant part:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage A. bodily injury or Coverage B. property damage
to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage ***.”

Indiana brought a complaint for declaratory judgment, asking the court to find that it need not defend or indemnify Hydra in this matter because the damages suffered by B.K. were not caused by an occurrence. Hydra counterclaimed for declaratory judgment in its favor. The trial court granted Indiana’s motion for judgment on the pleadings. Hydra appeals.

Hydra argues that the trial court’s granting of Indiana’s motion for judgment on the pleadings is contrary to the law and that Indiana had a duty to indemnify and defend Hydra. A judgment on the pleadings is proper if only questions of law and not of fact exist after the pleadings have been filed. (Teeple v. Hunziker (1983), 118 Ill. App. 3d 492, 496.) On review of an order granting judgment on the pleadings, the appellate court must ascertain whether the trial court correctly decided that the pleadings presented no genuine issue of material fact and, if there was no such issue, whether judgment was correctly entered. Teeple, 118 Ill. App. 3d at 497.

When determining whether an insurance company must defend its insured in a suit filed against it, the court must look to the factual allegations of the underlying complaint and the provisions of the insurance policy. An insurance company has a duty to defend only if the complaint alleges facts within or potentially within the coverage of the policy (Thornton v. Paul (1978), 74 Ill. 2d 132, 144), unless the insurance company has knowledge of unpleaded facts which, when taken together with the complaint’s allegations, indicate that the claim is within or potentially within the policy coverage. (Aetna Casualty & Surety Co. v. Freyer (1980), 89 Ill. App. 3d 617, 621.) The policy should be liberally construed with any uncertainty resolved in favor of the insured. Travelers Insurance Cos. v. P.C. Quote, Inc. (1991), 211 Ill. App. 3d 719, 724.

The factual allegations underlying B.K.’s first amended complaint against Hydra are the same as those underlying its initial demand for repairs and its notice of demand for arbitration. B.K. claims that after Hydra constructed the building paint did not adhere to the exterior of the building and numerous cracks appeared in the concrete floor. Thus, Hydra breached its contractual obligation to furnish work, labor and materials of good and workmanlike quality. There is no evidence of any unpleaded facts which reveal B.K.’s damages to be other than from Hydra’s alleged breach of contract.

The general coverage provision in the policies issued by Indiana to Hydra states that Indiana must indemnify Hydra for damages which Hydra becomes legally obligated to pay as the result of bodily injury or property damages. Indiana must also defend any suit against Hydra seeking damages on account of such bodily injury or property damage. This provision does not provide coverage for damages resulting from breach of contractual obligations, as is the basis for B.K.’s complaint against Hydra. Aetna Casualty & Surety Co. v. Spancrete of Illinois, Inc. (N.D. Ill. 1989), 726 F. Supp. 204, 206.

Furthermore, the underlying complaint does not allege damages resulting from an “occurrence” as required by the policies. The use of the word “occurrence” in insurance policies broadens coverage and eliminates the need to find an exact cause of damages as long as they are neither intended nor expected by the insured. (Bituminous Casualty Corp. v. Gust K. Newburg Construction Co. (1991), 218 Ill. App. 3d 956, 965.) However, the occurrence must still be accidental. (Bituminous, 218 Ill. App. 3d at 965.) An accident is “an unforeseen occurrence, usually of an untoward or disastrous character or an undesigned sudden or unexpected event of an inflictive or unfortunate character.” (Aetna Casualty & Surety Co. v. Freyer (1980), 89 Ill. App. 3d 617, 619.) The natural and ordinary consequences of an act do not constitute an accident. Bituminous, 218 Ill. App. 3d at 966.

B.K.’s damages were not the result of an accident. This case is like Bituminous Casualty Corp. v. Gust K. Newburg Construction Co. (1991), 218 Ill. App. 3d 956. There, the State of Illinois contracted with Newburg Construction to provide it with a heating, ventilation and air conditioning (HVAC) system. The State alleged that the HVAC system that was installed in the building was not what it bargained for or expected. Newburg Construction sought, defense and indemnity from its insurance company, Bituminous Casualty. Bituminous Casualty denied coverage. The court stated that “the allegations of too hot and too cold temperatures in the building are no more than the natural and ordinary consequences of installing an inadequate HVAC system.” (Bituminous, 218 Ill. App. 3d at 966.) The court therefore concluded that the State’s complaint did not allege a loss of use of tangible property caused by an occurrence. (Bituminous, 218 Ill. App. 3d at 966.) Similarly, in the present case, the cracks in the floor and the loose paint on the exterior of the building are the natural and ordinary consequences of installing defective concrete flooring and applying the wrong type of paint.

Contrary to Hydra’s argument, we find that this case is not like Trovillion v. United States Fidelity & Guaranty Co. (1985), 130 Ill. App. 3d 694, and Harbor Insurance Co. v. Tishman Construction Co. (1991), 218 Ill. App. 3d 936. In Trovillion, the plaintiffs built a house as general contractors for James and Melissa Williamson. The Williamsons sued the plaintiffs for breach of contract because of their failure to erect the house in a good and workmanlike manner. The Williamsons’ complaint alleged that the floor sagged because of inadequate support and that the floor in the bedroom area buckled and became detached from the walls. The walls and the vinyl kitchen floor cracked. The complaint also alleged that the roof leaked and that the mortar and bricks in the exterior walls and the concrete footings cracked because of structural defects. Trovillion, 130 Ill. App. 3d at 697.

The plaintiffs’ insurance company initially undertook their defense under a reservation of rights but later withdrew its defense, citing certain policy exclusions. Those exclusions state that the insurance does not apply:

“(n) To property damage to the Named Insured’s products arising out of such products or any part of such products;
(o) to property damage to work performed by or on behalf of the Named Insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith ***.” Trovillion, 130 111. App. 3d at 697.

The court stated that the insurer must have been uncertain as to its potential liability, as it initially undertook the defense of the Williamsons’ claim. (Trovillion, 130 Ill. App. 3d at 699.) The court concluded that the applicability of the exclusionary clauses was not clear and free from doubt and that the Williamsons’ claim was potentially covered under the policy. Trovillion, 130 Ill. App. 3d at 699.

In Harbor Insurance Co., La Salle National Bank alleged that the contractors and subcontractors who performed construction work on the Apparel Mart and parking garage had breached their contractual duties and were liable for alleged design and construction defects and faulty workmanship. The defects alleged by La Salle included the “mislocation of a structural beam and its bearing pad, structural failure of the northwest comer of the parking garage, severe cracking and distress in the masonry wall and brick facade, inadequate expansion joints and bearings in the brick facade, defective roof flashings, defective installation and securing of insulation and firesafing, delamination and spalling of the topping slab throughout the parking garage, and inadequate and improper design and construction of the parking garage surface.” Harbor Insurance Co., 218 Ill. App. 3d at 938.

The contractors and subcontractors tendered the defense of the lawsuit to Harbor Insurance Company (Harbor). Harbor relied on two policy exclusions as a basis for denying coverage. Those exclusions state that the insurance does not apply:

“(y) to property damage *** (2) *** to *** (d) that particular part of any property, not on premises owned by or rented to the insured***. ***
(iii) the restoration, repair or replacement of which has been made or is necessary by reasons of faulty workmanship thereon by or on behalf of the insured ***;
(z) *** to property damage to work performed by the named insured arising out of the work or any portion thereof, or out of the materials, parts or equipment furnished in connection herewith.” Harbor Insurance Co., 218 111. App. 3d at 939.

Harbor filed a declaratory judgment action seeking a ruling that it was not obligated to defend or indemnify those entities claiming to be insureds under the Harbor comprehensive general liability policies. The trial court granted Harbor’s motion for summary judgment in the declaratory judgment action. The appellate court reversed. The court found that no Illinois courts had construed the exclusions relied upon by Harbor and that the underlying complaint alleged facts potentially within the policy coverage. Harbor Insurance Co., 218 111. App. 3d at 942.

The underlying complaint in both Trovillion and Harbor Insurance Co. alleged breach of contract by a contractor or contractors. In each case the reviewing court determined that the third party’s damages were potentially covered by the policy. However, Trovillion and Harbor Insurance Co. are distinguishable from this case because they involved the interpretation of various policy exclusions that are not at issue here. Further, neither case addressed the argument that the third party’s damages were not caused by an occurrence.

The pleadings in this case presented no questions of material fact, and Indiana was entitled to judgment in its favor. We hold that the trial court did not err in granting Indiana’s motion for judgment on the pleadings. Since we have determined that B.K.’s claim for breach of contract was not covered under the policies issued by Indiana, we need not rule upon Indiana’s other policy defenses.

We next address Hydra’s argument that Indiana was estopped from raising coverage issues, exclusions or defenses because it wrongfully failed to defend Hydra in the initial arbitration proceedings. An insurer’s wrongful failure to defend estops that insurer from later raising policy defenses or noncoverage in a subsequent action by the insured. (Thornton v. Paul, 74 Ill. 2d at 145.) However, Indiana was not required to defend Hydra in the initial arbitration proceedings because B.K.’s action against Hydra clearly did not allege a claim potentially within the policy coverage. (United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1991), 144 Ill. 2d 64, 73.) Since Indiana did not wrongfully fail to defend Hydra in the arbitration proceedings, it was not estopped from raising noncoverage in a subsequent action.

Lastly, Hydra contends that the trial court erred in denying its motion for leave to file an amended counterclaim prior to the court’s granting of judgment on the pleadings in favor of Indiana. The decision whether to allow an amendment under section 2 — 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 616) rests within the sound discretion of the trial court, and its decision will not be disturbed absent a showing of an abuse of that discretion. (Schwaner v. Belvidere Medical Building Partnership (1987), 155 Ill. App. 3d 976, 988.) One of the factors to be considered in deciding whether that discretion was properly exercised is whether the proposed amendment would cure the defective pleading. Schwaner, 155 Ill. App. 3d at 988.

Hydra’s original counterclaim for declaratory judgment alleged that B.K.’s action against it was covered under the insurance policies issued by Indiana. The trial court determined that B.K.’s action for breach of contract was not an “occurrence” and that Indiana had no duty to indemnify or defend Hydra for property damage arising out of that alleged breach of contract. Hydra’s amended counterclaim for declaratory judgment did not assert any new facts that would have required Indiana to defend or indemnify Hydra. The trial court did not abuse its discretion in denying Hydra’s motion for leave to file its amended counterclaim.

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

GEIGER and DOYLE, JJ., concur.