author: JUSTICE McCULLOUGH

text:
    THOMAS WHITMER, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Consolidated Freightways Corp., Appellee).
    First District (Industrial Commission Division)
    No. 1—88—1940WC
    Opinion filed August 11, 1989.
    Rehearing denied January 31, 1990.

      Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago (Richard A. Kimnach, of counsel), for appellant.
    Garofalo, Hanson, Schreiber & Vandlik, Chartered, of Chicago (Scott T. Schreiber and Philip G. Brinckerhoff, of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant appeals from an order of the trial court which quashed summons and dismissed his Industrial Commission (Commission) review proceeding for lack of subject-matter jurisdiction. Claimant contends the court erred in that determination. We disagree and affirm.

The facts are undisputed. Following the issuance of the Commission’s decision, claimant filed for review in the circuit court. Presented to the circuit clerk were the following documents:

(1) A summons to the Industrial Commission;
(2) A summons to respondent’s attorneys;
(3) A certificate of mailing; and
(4) A receipt for payment of the record to the Commission.

Claimant did not, however, file a separate document requesting issuance of summons by the clerk. Relying upon Daugherty v. Industrial Comm’n (1983), 99 Ill. 2d 1, 457 N.E.2d 381, Wolfe v. Industrial Comm’n (1985), 138 Ill. App. 3d 680, 486 N.E.2d 280, Luttrell v. Industrial Comm’n (1987), 154 Ill. App. 3d 943, 507 N.E.2d 533, and Chadwick v. Industrial Comm’n (1987), 154 Ill. App. 3d 859, 507 N.E.2d 878, the trial court dismissed the case, concluding the failure to file a written request for summons did not constitute strict compliance with section 19(f)(1) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)(1)).

In Daugherty claimant, filed a praecipe for writ of certiorari and scire facias which did not contain the name of a party in interest. As a result, that party, the second injury fund, was not served with summons until well after the proceedings for review had commenced in the circuit court. The supreme court held that jurisdiction could only be acquired by the timely filing of a written praecipe which met the statutory requirement that the praecipe contain the names of all parties in interest. The appeal was dismissed for failure to file a praecipe conforming to those requirements. The supreme court considered the fact the omitted party was eventually served irrelevant.

In Wolfe, claimant failed to file a written request for summons. Because respondent failed to perfect a cross-appeal, this court concluded law of the case made review of respondent’s jurisdictional argument inappropriate. Nevertheless we observed: “Strict compliance with section 19(f)(1) of the Act would appear to require that the request be in writing, and Daugherty requires strict compliance.” Wolfe, 138 Ill. App. 3d at 685-86, 486 N.E.2d at 284.

Claimant argues, however, there has been a tendency by courts to simplify procedure, honor substance over form, and prevent technicalities from depriving a party of the right to be heard, citing Luttrell and Chadwick. In Luttrell claimant filed for review on outdated forms after section 19(f)(1) had been amended by the legislature to require the use of summons instead of praecipes and writs. (Pub. Act 83— 360, eff. Sept. 14, 1983 (1983 Ill. Laws 3076).) This court determined the mere use of incorrect forms did not deprive the circuit court of subject-matter jurisdiction since there was no significant distinction between a written request for summons and a praecipe. We have also examined the cursory legislative history attendant to Public Act 83— 360. It clearly reveals the amendment was purely technical to correct terminology and make other “linguistic” changes. 83d Ill. Gen. Assem., House Proceedings, April 19, 1983, at 32 (statements of Representative Terzich).

In Chadwick the praecipe for writ named respondent as a party in interest but did not include its address. The praecipe did, however, set forth the address of the respondent’s attorney of record and respondent’s name and address were listed on the certificate of mailing. While we noted this was error, it was also clear claimant provided sufficient information in the praecipe and certificate of mailing to permit the clerk to properly notify respondent and its attorney of the pending appeal.

Neither Luttrell nor Chadwick is analogous to the situation here. In both Luttrell and Chadwick written requests, although imperfectly drawn, were actually filed. In the instant case, no written request was filed. The supreme court in Daugherty clearly stated that a request for summons must be in writing. We deem the failure to file any written request to be substantive, since to hold otherwise would completely emasculate a clear requirement of section 19(f)(1). We conclude the trial court properly determined it lacked subject-matter jurisdiction because of claimant’s failure to strictly comply with the statute.

Finally, although we need not reach any of the other issues presented because of the disposition we make, we acknowledge and approve respondent’s confession of error in the Industrial Commission decision to the extent respondent concedes it is obligated to reimburse claimant in the amount of $145 for the medical expense of a CAT scan performed upon claimant at the direction of respondent’s medical personnel. See Ill. Rev. Stat. 1987, ch. 48, par. 138.12.

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

Affirmed.

BARRY, P.J., and McNAMARA, WOODWARD, and LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    JAMES McGOUGHY, Plaintiff-Appellant, v. CHICAGO HOUSING AUTHORITY, a municipal corporation, Defendant-Appellee.
    First District (6th Division)
    No. 1—88—3268
    Opinion filed August 11, 1989.

      Leo M. Bleiman, P.C., of Chicago (Laura Monahan-Jarvis, of counsel), for appellant.
    Jones, Ware & Grenard, of Chicago (Mitchell Ware, Frank M. Grenard, Kevin T. Lee, and Anthony C. Swanagan, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, James McGoughy, appeals from a trial court order dismissing count II of his second amended complaint against defendant, Chicago Housing Authority (CHA) due to an inadequate description of the accident included in the notice required by the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, pars. 8 — 101 through 8 — 103). Count I remains pending in the trial court.

On April 20, 1983, plaintiff fell and injured himself while running down a stairway in a Chicago apartment building owned by defendant. He.left a friend’s apartment and was running, being attacked by unknown assailants at the time he fell.

An April 20, 1983, Michael Reese Hospital emergency room report states that plaintiff was hit over the head with a baseball bat by four individuals, punched in the eye, and that he fell down a flight of stairs, injuring his knee and leg.

On January 16, 1984, plaintiff timely served defendant with statutory notice of his intention to commence a civil action for damages. The notice included plaintiff’s name and address; the date, time and location of the accident; the treating hospitals and physicians; and a description of the accident:

“Claimant was going down the south staircase from the 13th floor, slipped and fell down. Stairwell unlighted and wet.”

On August 16, 1984, plaintiff filed a complaint alleging that defendant permitted the stairway to remain in a dangerous, unsafe, wet, unlighted and slippery condition, causing him to fall down the stairs.

Subsequently, both sides engaged in discovery. On December 24, 1984, defendant served plaintiff with interrogatories asking for details about the assault, including any advance notice that he might be in danger, precautions to avoid danger, description of assailants and “the number of persons and the objects carried by them as reported to hospital (Michael Reese),” and “how many floors were you chased by these assailants before you were actually attacked.”

On January 25, 1985, defendant answered the complaint, denying that as a cause of any alleged negligence of defendant, plaintiff “sustained any injuries ***, but states that any injuries sustained by plaintiff resulted from independent intervening criminal activity unrelated to any activity of the defendant.”

On February 11, 1985, defendant filed a motion to compel answers to the interrogatories relating to information plaintiff possessed about the criminal attack, arguing that because “of the generality of the claim or charge, [defendant] is unable to know with reasonable certainty what he is required to meet.”

On December 23, 1985, defendant answered plaintiff’s request for production of any party’s statement made to a third person by attaching the April 20, 1983, emergency room hospital report. The report is stamped as received September 18, 1984.

On August 5, 1986, plaintiff filed a pretrial memorandum stating the theory of the case was that his fall and injuries, which occurred while he was being chased by unknown assailants, were caused by defendant’s negligent maintenance of the stairway and by lack of adequate security.

On September 18, 1987, plaintiff asked in a supplemental production request to inspect any documents regarding criminal assaults or other violent crimes occurring at the CHA building between November 1, 1982, through May 1, 1983. On October 2, 1987, defendant responded that it had no such documents. Plaintiff later located 11 police reports which had been sent to defendant during that time period. The reports recorded criminal assaults which took place in that building, including one assault by an unknown assailant on a visitor one week before plaintiff’s injuries occurred.

On May 9, 1988, plaintiff filed a second amended complaint, adding count II, which alleged that plaintiff was bodily attacked on defendant’s premises and that defendant failed to provide adequate protection against felonious assault. Count II contains no allegations regarding negligence in permitting the stairs to remain wet and slippery, or in permitting the stairway to be insufficiently lit.

The trial court granted defendant’s section 2 — 619 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) motion to dismiss count II on the basis that plaintiff failed to provide defendant with adequate notice of that theory of recovery.

The Tort Immunity Act requires a claimant to notify the local governmental entity of his intent to sue within one year of the accrual of that injury. (Ill. Rev. Stat. 1983, ch. 83, par. 8 — 102. (Repealed for causes of action arising after November 25, 1986. See Pub. Act 84— 1431, art. 1, §3, art. 27, §1.)) The notice must include a description of the general nature of the accident. Plaintiff initially provided defendant with notice of the April 20, 1983, injury on January 16, 1984, within a year’s time. The narrow issue presented here concerns whether or not the notice’s statements of “the general nature of the accident” were adequate in regard to count II.

The courts take a liberal approach in determining the sufficiency of any element required under section 8 — 102. (Lando v. City of Chicago (1984), 128 Ill. App. 3d 597, 470 N.E.2d 1172; Bickel v. City of Chicago (1975), 25 Ill. App. 3d 684, 323 N.E.2d 832.) The test is whether the elements of the notice are set forth with sufficient clarity and accuracy so as to not mislead or prejudice the public entity. (Lando v. City of Chicago, 128 Ill. App. 3d 597, 470 N.E.2d 1172.) The purpose of the notice provision is to provide the governmental entity with the means to investigate the claim at an early date, to preserve evidence, to correct allegedly defective conditions, and to avoid future liabilities. (Stephens v. McBride (1983), 97 Ill. 2d 515, 455 N.E.2d 54; Carroll v. Chicago Housing Authority (1987), 155 Ill. App. 3d 710, 508 N.E.2d 285.) The statutory notice requirement, being in derogation of common law, must be strictly construed against the local public entity. H. Winter Metal Co. v. City of Chicago (1986), 143 Ill. App. 3d 542, 493 N.E.2d 93; Rio v. Edward Hospital (1983), 120 Ill. App. 3d 699, 458 N.E.2d 606, aff’d (1984), 104 Ill. 2d 354, 472 N.E.2d 421.

In the present case, the 1984 notice of the accident states that claimant slipped and fell down the unlighted and wet stairway. We do not believe it was necessary that the notice continue on and detail all of the circumstances surrounding the precise reasons that plaintiff was on the stairs at the exact moment of the fall. The notice informed defendant of the time, date, and location of the accident. Significantly, it also timely informed defendant of the names of the treating hospital and physicians. The hospital report recites in great detail the facts of the assault involved in defendant’s fall on the allegedly wet and unlit stairs.

We conclude that defendant had notice of or access to all facts to give it sufficient notice of the injury to facilitate investigation, settlement, or budget planning. (See Whitney v. City of Chicago (1987), 155 Ill. App. 3d 714, 508 N.E.2d 293.) Defendant has suffered no prejudice. Plaintiff is not required to set forth all of his theories of recovery, but instead need only state the general nature of the accident. Whitney v. City of Chicago, 155 Ill. App. 3d 714, 508 N.E.2d 293; see also Roesler v. Liberty National Bank (1954), 2 Ill. App. 2d 54, 118 N.E.2d 621; Thomas v. Douglas (1952), 346 Ill. App. 277, 105 N.E.2d 129.

Furthermore, without exploring various possibilities through the discovery process, plaintiff possessed no information which might signal the existence of a cause of action for failure to provide adequate security based on defendant’s prior knowledge of numerous criminal assaults occurring on its premises. This is particularly true because as late as October 1987 defendant was denying to plaintiff that it knew of any documentation regarding criminal assaults or other violent crimes occurring at the CHA building in question between November 1982 and May 1983. Plaintiff subsequently located 11 police reports of such violent crimes. One report shows a visitor to the building was attacked by an unknown assailant only one week before plaintiff’s injuries occurred. Thus, whether defendant might face liability for inadequate security in the face of these repeated assaults would best be known to defendant, not plaintiff.

We note further that by December 1984, defendant clearly knew of the assault, as indicated in its interrogatories. Moreover, defendant produced for plaintiff defendant’s copy of the April 1983 hospital report, which was stamped “received September 18, 1984.” Additionally, defendant’s January 1985 answer to the complaint states the injuries were caused by “independent intervening criminal activity.”

Defendant’s reliance on Carroll v. Chicago Housing Authority (1987), 155 Ill. App. 3d 710, 508 N.E.2d 285, is misplaced. In Carroll, the court found a notice inadequate where plaintiff only stated “Claimant was caused to become injured due to the negligence of the Chicago Housing Authority.” (155 Ill. App. 3d at 712.) The court held that there were no facts to indicate the nature of defendant’s negligence. In contrast, here defendant knew plaintiff fell on stairs, knew the condition of the stairway area, and had actual notice of or access to further facts preceding the fall within the one-year statutory notice period. We hold that the statutory notice to defendant was sufficient and that the court erred in dismissing count II of the complaint.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with the holdings contained herein.

Judgment reversed and remanded.

EGAN, P.J., and LaPORTA, J., concur.


text:
    TURNER CONSTRUCTION COMPANY, Plaintiff-Appellant, v. MIDWEST CURTAINWALLS, INC., Defendant-Appellee.
    First District (6th Division)
    No. 1—89—0731
    Opinion filed August 11, 1989.

      Greenberger, Krauss & Jacobs, Chartered, of Chicago (Steven G.M. Stein and Kent S. Ray, of counsel), for appellant.
    Epstein, Zaideman & Esrig, P.C., of Chicago (Jerry A. Esrig, Robert J. Zaideman, James R.. Epstein, and Francine Kaplan, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

In this construction dispute, plaintiff Turner Construction Company, the general contractor, filed a petition to stay arbitration proceedings after a demand for arbitration was filed by the subcontractor, defendant Midwest Curtainwalls, Inc., a/k/a Midwest Architectural Metals, Inc., and Ampat/Midwest Corporation. The trial court denied Turner’s petition to stay arbitration and granted Midwest’s motion to dismiss the petition pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). Turner appeals from this interlocutory order (107 Ill. 2d R. 307), contending that the general contract language permitting arbitration is not incorporated into the language of the subcontract entered into by the parties.

On November 16, 1984, Turner entered into a construction contract with the owner of certain property. On the same day, Midwest entered into an agreement with Turner.

The general contract between Turner and the owner provides for arbitration of certain disputes:

“Section 7.9.1: All Claims, disputes and other matters in question between the Contractor and the Owner arising out of, or relating to, the Contract Documents or the breach thereof *** shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. *** No person other than the Owner or contractor shall be included as an original third party or additional third party to an arbitration whose interest or responsibility is insubstantial. Any consent to arbitration involving an additional person or persons shall not constitute consent to arbitration of any dispute not described therein or with any person not named or described therein.”

The subcontract between Turner and Midwest contains no arbitration clause. Article II of the subcontract states:

“Article II: The Plans, Specifications, General Conditions, Special Conditions, Addenda and General Contract, hereinabove mentioned, are available for examination by the Subcontractor at all reasonable times at the office of Turner, all of the aforesaid, including this Agreement, being hereinafter sometimes referred to as the Contract Documents. The Subcontractor represents and agrees that it has carefully examined and understands this Agreement and the other Contract Documents
With respect to the Work to be performed and furnished by the Subcontractor hereunder, the Subcontractor agrees to be bound to Turner by each and all of the terms and provisions of the General Contract and the other Contract Document, and to assume toward Turner all of the duties, obligations and responsibilities that Turner by those Contract Documents assumes toward the Owner, and the Subcontractor agrees further that Turner shall have the same rights and remedies as against the Subcontractor as the Owner under the terms and provisions of the General Contract and the other Contract Documents has against Turner with the same force and effect as though every such duty, obligation, responsibility, right or remedy were set forth herein in full. The terms and provisions of this Agreement with Subcontractor hereunder are intended to be and shall be in addition to and not in substitution for any of the terms and provisions of the General Contract and the other Contract Documents.”

On June 16, 1988, Midwest served Turner with a demand for arbitration, seeking over $1 million for delaying its work and failure to pay retainage. Upon receipt of the demand, Turner initiated this suit to stay the arbitration proceedings.

Turner contends that neither the subcontract nor the general contract provides for arbitration of claims between the parties. Whether an ambiguity exists in a contract is to be determined by the court as a question of law. (Kenny Construction Co. v. Hinsdale Sanitary District (1982), 111 Ill. App. 3d 690, 444 N.E.2d 510.) We find that, as a matter of law, the language of the subcontract is ambiguous.

Article II of the subcontract states that Midwest agrees that Turner “shall have the same rights and remedies as.against the subcontractor as the owner under the terms and provisions of the general contract *** with the same force and effect as though every such duty, obligation, responsibility, right or remedy were set forth herein in full.” It is not disputed that one of the “rights and remedies” which Turner has against the owner is arbitration.

The ambiguity arises where the subcontract precedes the “same rights and remedies” language with the phrase “[w]ith respect to the work to be performed.” Turner maintains that the subcontract’s “flow down” clause, permitting certain of the obligations and rights between the general contract and owner to pass to the subcontract, relates only to the “work to be performed” and not to the resolution of disputes between the parties here.

Thus, the language is reasonably susceptible of more than one construction. (See W.H. Lyman Construction Co. v. Village of Gurnee (1985), 131 Ill. App. 3d 87, 475 N.E.2d 273.) The intent of the parties to a contract must be determined from the contract as a whole, not merely by reference to particular words or isolated phrases, but instead by viewing each part in light of the others. (La Throp v. Bell Federal Savings & Loan Association (1977), 68 C. 2d 375, 370 N.E.2d 188.) The subcontract as a whole demonstrates the parties’ intent to incorporate the general contract.

Generally, one instrument may incorporate another instrument by reference. (Provident Federal Savings & Loan Association v. Realty Centre, Ltd. (1983), 97 Ill. 2d 187, 454 N.E.2d 249.) The contract must show an intent to incorporate the other document and make it part of the contract itself. (Golen v. Chamberlain Manufacturing Corp. (1985), 139 Ill. App. 3d 53, 487 N.E.2d 121.) Thus, a subcontract can specifically include provisions of the general contract, and the additional provisions then become part of the subcontract as if they were expressly written in it. Preski v. Warchol Construction Co. (1982), 111 Ill. App. 3d 641, 444 N.E.2d 1105.

Article II of the subcontract states that the terms and provisions of the subcontract are “in addition to and not in substitution for any of the terms and provisions of the General Contract and the other Contract Documents.” The subcontract defines “Contract Documents” to include the “general conditions” of the general contract. The subcontract also requires Midwest to represent that it “has carefully examined and understands this Agreement and the other Contract Documents.” Article I of the subcontract requires Midwest to perform “in strict accordance” with the contract documents, including the “general conditions *** and with the terms and provisions of the General Contract.”

The general contract language supports this construction. The general contract provides in section 5.3.1 that Turner shall allow Midwest, “unless specifically provided otherwise in the Contractor-Subcontractor agreement, the benefit of all rights, remedies and redress against the Contractor that the Contractor *** has against the Owner.” In addition, the subcontractor must be bound by section 5.3, and the subcontractor must identify “any terms and conditions of the proposed subcontract which may be at variance” with the general contract.

Thus, in viewing the contract as a whole, we will not isolate the phrase “with respect to the work to be performed.” We believe that the parties intended the subcontract to incorporate the general contract’s provisions for “rights and remedies,” including the right and obligation to arbitrate disputes. This is particularly true because the relevant disputes would always arise “with respect to the work to be performed.”

Moreover, legal documents which are ambiguous are strictly construed against the party who prepared them. (Wachta v. First Federal Savings & Loan Association (1981), 103 Ill. App. 3d 174, 430 N.E.2d 708.) Here, Turner admittedly prepared the contract using its own form. Thus we shall strictly construe the ambiguous language against Turner.

While, unlike the trial court, we find some ambiguity, we reach the same conclusion. The trial court properly granted Midwest’s motion to dismiss Turner’s petition to stay arbitration. The subcontractor has the right, and the general contractor has the corresponding obligation, to arbitrate the dispute between the parties.

The holding is supported by other courts which have held that arbitration was required based upon the incorporation of an arbitration provision from the general contract, notwithstanding the fact that the subcontract contained no separate arbitration provisions.

In Uniroyal, Inc. v. A. Epstein & Sons, Inc. (7th Cir. 1970), 428 F.2d 523, the court reversed a trial court’s refusal to order arbitration between a general contractor and a subcontractor, rejecting the argument that the flow-through provisions incorporated only the terms concerning the quality and manner of performing the subcontract work. (See also Maxum Foundations, Inc. v. Salus Corp. (4th Cir. 1985), 779 F.2d 974; J.S. & H. Construction Co. v. Richmond County Hospital Authority (5th Cir. 1973), 473 F.2d 212; Bigge Crane & Rigging Co. v. Docutel Corp. (E.D.N.Y. 1973), 371 F. Supp. 240; Bartley, Inc. v. Jefferson Parish School Board (La. 1974), 302 So. 2d 280; Gibbons-Grable Co. v. Gilbane Building Co. (1986), 34 Ohio App. 3d 170, 517 N.E.2d 559.) We also note that in Illinois, arbitration is a favored method of settling disputes. Kostakos v. KSN Joint Venture No. 1 (1986), 142 Ill. App. 3d 533, 492 N.E.2d 1322.

We reject Turner’s argument that the obligation to arbitrate permits it to demand arbitration in a dispute with Midwest, but denies Midwest the same right. Such an interpretation would require us to find that Turner at its whim could exercise the right, but never be burdened by the obligation, to submit disputes to arbitration. We are unaware of any law to support this interpretation of the contracts presented here.

Turner’s reliance on United States Steel Corp. v. Turner Construction Co. (S.D.N.Y. 1983), 560 F. Supp. 871, is misplaced. In that case, the contract contained no provision extending “all rights and remedies” between the owner and general contractor passing through to the relationship between the general contractor and subcontractor. Moreover, the cases relied' upon by the court in U.S. Steel concern public works projects and have been distinguished by a long line of decisions. See, e.g., J & K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 456 N.E.2d 889.

In view of our holding, we do not address Midwest’s argument that Turner is estopped from evading arbitration because of a prior course of dealings between the parties.

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

Judgment affirmed.

EGAN, P.J., and LaPORTA, J., concur.


author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE L. COLSON et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1—85—2766, 1—85—2767 cons.
    Opinion filed August 14, 1989.

      Randolph N. Stone, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Gael M. O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Defendants, Johnnie L. Colson and Johnny Brown, were charged by indictment with attempted murder, murder, aggravated battery, armed robbery and armed violence. Brown filed a motion to suppress his statements which was denied after an evidentiary hearing. Following a bench trial both defendants were convicted of murder. The trial court imposed sentences of 30 years’ and 25 years’ imprisonment, respectively, against Brown and Colson. In this consolidated appeal, Brown asserts that his motion to suppress statements was improperly denied, and based thereon, that he should be granted a new trial. Additionally, both defendants contend that the evidence was insufficient to prove their guilt beyond a reasonable doubt, that their right to due process was denied when the trial court improperly shifted the burden of proof of self-defense to the defendants, and that they were denied effective assistance of counsel.

During the evidentiary hearing on Brown’s motion to suppress, both Officers Michael Cronin and Robert Drozd testified. Officer Cronin testified that he advised Brown of his Miranda rights before he and Officer Drozd arrested Brown at 11:30 a.m., on May 18, 1984, at 8148 South Drexel in Chicago, and transported him to the police station. Both policemen denied that they threatened Brown or promised him leniency or that Brown stated that he wanted to remain silent.

Brown testified that at 11:30 a.m. on May 18, 1984, he was awakened by Officer Cronin, ordered from his bed, and advised that he was being arrested for murder. He further testified that four police officers were present at the arrest scene and none of them advised him of his Miranda rights. Brown testified that he was interrogated for 10 minutes before being permitted to dress, and when he was escorted to the squad car, his head was “bumped” into the roof of the car by one of the police officers. He stated that Officer Drozd then said “it would be easier” if Brown told them where the gun was and that if he did not he would be dragged outside the car to the police station or would be pushed down the “elevator shaft” at 2417 West Adams. He testified that he was driven past 2417 West Adams en route to the police station. Officer Cronin also urged Brown to confess. Shortly before 8 p.m. a detective and an assistant State’s Attorney questioned Brown, but he refused to make a statement. After a uniformed policeman advised Brown of his Miranda rights, he was placed in a six-person lineup. During the lineup, while Brown observed that some conversation took place between a witness and a policeman, he was unable to discern what was being said. The witness and officer were only about five feet away from Brown.

Brown added that at 11 p.m., on May 18, 1984, he denied any knowledge of the shooting or that he had been at 2417 West Adams at the time of the incident. However, the policemen continued to question him and would not permit him to make a telephone call or leave. Detectives Thomas Blomstrand and James Griffin also testified. Detective Blomstrand stated that on the evening of May 16, 1984, he displayed a photograph array, which included Brown’s picture, to Reginald Jett, Reuben Ivy and Steven Thomas. Each of them separately identified Brown.

Detective Griffin testified that at 8:55 p.m., on May 18, 1984, he conducted a lineup in which Brown participated, and two witnesses, who separately viewed the lineup, identified Brown. Detective Griffin denied that he spoke with either witness during the lineup. After the lineup, Detective Griffin advised Brown that he had been identified. When Detective Griffin and Assistant State’s Attorney Frank Gaughan advised Brown of his Miranda rights, he continued to deny any knowledge of the crime.

At the trial, the testimony of Reginald Jett, James Williams, and Reuben Ivy was similar. Each stated that on May 16, 1984, he was a member of the Disciples street gang. At 4 p.m. on that date, Jett, Williams, Ivy, and the victim, Paul Jefferson, a non-gang member, as well as others, were “pitching pennies” and talking outside the apartment building located at 2417 West Adams in the Rockwell Gardens public housing complex. Willie Cason, another Disciple who was nearby, “yelled out.” The victim and other Disciples, excluding Cason, then ran into the building. Jett, Williams and Ivy then observed defendants, who were members of the rival Vice Lord street gang, enter the building.

According to Jett, when the defendants entered the building Col-son fired a shotgun into the first-floor ceiling, at which time Jett and his companions ran to the seventh-floor porch. The victim, who was carrying a radio, rested on a window sill while other Disciples conversed on the porch. Then when both defendants appeared on the seventh floor, James Williams hollered, “Look out, run, run.” Brown then fired a pistol at the Disciples as they fled from the seventh-floor porch. Later, Jett returned to the porch and observed the victim lying on the floor but his radio was gone. Subsequently, Jett toured the area with policemen in their squad car. He identified Colson, who was brought to the squad car in which Jett was riding. Jett testified that two days later he identified Brown in a five-man lineup as the man who shot at the Disciples on the seventh floor. Jett indicated that he and his companions were unarmed at the time of the incident.

James Williams, a 17-year-old whose background included a conviction for burglary, testified that on May 16, 1984, while on the playground at 2417 West Adams, he and “others” were told by Willie Ca-son that the Vice Lords were coming. The Disciples ran into the 2417 West Adams building, but he did not see anything in either defendants’ hands when they entered the building. However, when Williams reached the ramp on the fifth floor, he observed defendants remove their jackets and saw Colson pull out a shotgun and Brown a handgun. Williams ran up to the seventh floor where the victim and other Disciples had gathered. Williams then heard more gunshots and observed Brown coming up the stairs to the seventh floor with a gun, and Colson with a shotgun. Williams hollered “break,” and he ran into a stairwell at which time he observed the victim seated on a window sill. Shortly thereafter, Williams returned to the seventh floor, where he observed the victim lying on the floor and his radio was gone.

Reuben Ivy testified that when he and the other Disciples fled into 2417 West Adams insults were exchanged between the defendants and Disciples. Ivy proceeded to the seventh floor where the victim sat with his radio on a window sill and other Disciples had gathered. Ivy then saw Brown coming up the middle staircase, enter the seventh floor, and put his hand into his pants, at which time the Disciples ran. Ivy heard several gunshots as he fled to the twelfth floor, where he remained for five minutes, and when he returned to the seventh-floor porch, he saw the victim lying on the floor.

Andre Williams, 16 years of age, whose background included convictions for burglary, robbery and theft, testified that at 4:15 p.m., on May 16, 1984, he was near 2417 West Adams. He heard Willie Cason holler that Vice Lords had entered the building. Williams then entered the building and proceeded to the third floor. He then heard gunshots. When Williams arrived on the seventh floor, he observed the prostrate victim but did not see the latter’s radio or any weapon. Williams returned to the third floor and observed Brown and two other youths run from 2417 West Adams towards 340 South Western. Williams proceeded behind them and was shot in the leg by an unseen assailant.

Willie Cason testified that he was 18 years old and had been convicted of robbery. At 4 p.m., on May 16, 1984, Cason alerted fellow Disciple gang members that Brown and other Vice Lords were approaching 2417 West Adams. Cason remained outside the building, but the other Disciples entered and were followed by Brown and his companions. Cason then heard gunshots. Ten minutes later, he observed Brown carrying a large grey radio from the building similar to the victim’s radio.

Officer Michael Cronin testified that after he questioned several persons about the shooting, he toured the area with Reginald Jett and Willie Cason. The police officer then apprehended Colson after pursuing him and another youth who wore his hair in a “pony tail.” Later that night the officer recovered a .22 caliber semi-automatic Baretta pistol which was concealed in a sofa and a sawed-off shotgun in a school duffle bag stored under a bed in a sixth-floor apartment at 340 South Western. The next day the officer arrested Brown in an apartment on the south side. On the day of the homicide, Brown wore his hair in a “pony tail.” However, when Brown was arrested, he had no hair on his head.

Dr. Tae An, an assistant medical examiner, testified that on May 17, 1984, he performed an autopsy on the victim. According to the doctor, the cause of death was a gunshot wound to the chest which lacerated the heart and lung, and a wound to the left buttock.

Assistant State’s Attorney George Velcich testified that at 12:45 a.m., on May 20, 1984, he advised Brown of his Miranda rights, and the latter made the following statement: At 4:15 p.m., on May 16, 1984, the defendants and another Vice Lord, while armed with a .22 caliber pistol, a sawed-off shotgun and either a .38 or .32 caliber pistol, escorted Colson’s cousin “Anthony,” who was unarmed, to his tenth-floor apartment at 2417 West Adams. Brown further stated that when they entered the building the Disciples, who were gathered nearby, hollered epithets and pointed an object, resembling a gun, through a fence. Colson then discharged the shotgun into the ground floor; and after determining that the elevator was inoperable, Brown pulled out his pistol and proceeded up the stairway with his companions. When Brown was between the sixth and the seventh floor, he heard a Disciple exclaim, “Them whores in the building, man, let them come on up.” When Brown arrived on the seventh floor, one Disciple had his hand in his pocket and other Disciples ran toward defendants. Brown then pulled out his pistol and fired it although none of the Disciples shot at him. Defendants left the building and hid their weapons. Brown added that he subsequently shaved his hair to change his appearance when he heard that the police had found his gun and were looking for him. He also stated that his statement was voluntary, and that the police had not mistreated him, threatened him, or promised him leniency.

The parties then stipulated that if Assistant State’s Attorney Joseph Cavanaugh were called to testify he would state that at 2 a.m. on May 17, 1984, he advised Colson of his Miranda rights and that Colson made the following statement: At 4:15 p.m., on May 16, 1984, while carrying a loaded sawed-off shotgun, he, together with Brown and “Anthony,” who possessed handguns, and another unarmed Vice Lord whom he did not know, proceeded to 2417 West Adams. Upon their arrival, several Disciples ran inside the building. One Disciple stepped outside pretending he had a gun but then returned to the building. Colson followed the Disciples and fired the shotgun. Next the Vice Lords proceeded up the stairs to the seventh floor. Upon their arrival Colson was assigned to “watch everybody’s back” so that no one could “sneak up behind them” while Brown and “Anthony” fired shots at the Disciples whom the Vice Lords had been previously chasing. When the offenders left the seventh floor, Colson gave his shotgun to “Anthony,” threw his coat down the elevator shaft so that he could not be recognized and fled from the building: Colson conceded that the police had not mistreated or threatened him.

Others testifying included Officer O.C. High, Detective James McKenna and Officer Donald E. Smith. Officer High testified that when he responded to a call of a man shot, he observed the victim lying on the porch of the seventh floor. While Detective McKenna testified that he could not remember the conversation he had with Reuben Ivy, Reginald Jett and James Williams, he acknowledged that the police report he signed stated that Ivy, Jett and Williams indicated that they had observed Michael Collins with a gun on the seventh floor. Officer Smith, chief firearms examiner, testified that the bullet recovered by the medical examiner from the victim’s body was fired from a .38 special caliber revolver. The officer also examined a semi-automatic Baretta pistol with a magazine and a .22 caliber long rifle case body with a missing head as evidence that had been recovered from a sixth-floor apartment at 340 South Western during the investigation of the victim’s death.

The parties entered into the following stipulation: (1) that Detective Blomstrand would testify that on May 16, 1984, Reuben Ivy stated that he saw Michael Collins with a handgun outside 2417 West Adams, and that Andre Williams stated Kerry Ford shot him with a shotgun; (2) that Detectives Wayne Gehl and James Griffin would testify that during a lineup conducted at 10:20 p.m., on May 17, 1984, James Williams and Reuben Ivy identified Michael Collins and Kerry Ford, and that Williams stated that Ford shot Andre Williams and that Collins accompanied Paul Jefferson’s assailants; (3) that Andre Williams identified Ford and Collins in a lineup at 8:20 p.m., on May 18, 1984, and Williams stated Ford carried a shotgun and that when Williams left an apartment at 2417 West Adams he was confronted by Ford and Brown, and after he heard gunshots, he was chased by several persons; and (4) that Ivy stated that he was on the ground floor at 2417 West Adams when he was approached by five gunmen, one of whom was Michael Collins, and when Ivy was on the seventh floor, Colson arrived followed by other gunmen, and when Ivy yelled a warning, Colson fired his weapon.

First, we must consider Brown’s argument that the court improperly denied his motion to suppress statements and that he should be granted a new trial because the statements were obtained as a result of coercion and a material witness to his statement, Detective Peter McManamon, was not called to testify. When the voluntary nature of a statement is brought into issue by a motion to suppress, the State bears the burden of proving that it was voluntary (People v. Lumpp (1983), 113 Ill. App. 3d 694, 696, 447 N.E.2d 963; People v. Armstrong (1972), 51 Ill. 2d 471, 475-76, 282 N.E.2d 712), and the State must produce all material witnesses connected with the taking of the statements or explain their absence. (In re Lamb (1975), 61 Ill. 2d 383, 336 N.E.2d 753.) However, where the defendant fails to allege coercion or other misconduct when the written confession was executed, the State is not required to call all witnesses who were present when the statement was made. (Lamb, 61 Ill. 2d at 390.) A finding by the trial court that the statement was voluntary will not be disturbed unless it is contrary to the manifest weight of the evidence. People v, Andricopulos (1987), 162 Ill. App. 3d 899, 905, 516 N.E.2d 302.

Although Brown failed to raise this issue before the trial court, he now argues that his motion to suppress statements was improperly denied since the statements were coerced and because the State failed to produce Detective McManamon during the evidentiary hearing. Notwithstanding, our review of the record reveals that Brown testified that the alleged coercive tactics occurred when Officers Drozd and Cronin transported him to the police station and not when he executed the written statement in the presence of Detective McManamon. Therefore, Brown’s assertion that Detective McManamon was a material witness and should have been produced during the evidentiary hearing is not supported by the evidence since, as noted, Detective McManamon was not present when the alleged coercive tactics occurred and an individual cannot be a material witness if he is not present when the alleged coercive tactics occurred. (In re Lamb (1975), 61 Ill. 2d 383, 390, 336 N.E.2d 753; People v. Watson (1989), 178 Ill. App. 3d 796, 808, 533 N.E.2d 1011.) Therefore, under these circumstances, since Detective McManamon was not a material witness, the State was not required to call him as a witness at the suppression hearing or explain his absence. Lamb, 61 Ill. 2d at 390.

Further, Brown acknowledged that the enforcement officials used neither coercion nor promises of leniency to induce him to sign the statement. To the contrary, Brown specifically stated that the police had not mistreated him. Therefore, we also conclude that no coercive tactics occurred. Thus, it would be improper to conclude that Detective McManamon was a material witness whom the State was required to call to trial or that the trial court erroneously denied Brown's motion to suppress inculpatory statements made by him.

We must now consider defendants’ contention that the evidence was insufficient to support their convictions. Specifically, the defendants assert that the testimony of the prosecution witnesses was absurd and that there was nothing improbable about Brown’s statement of self-defense. It is well settled that in a bench trial it is the function of the trial court to determine the credibility of witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. (People v. Titone (1986), 115 Ill. 2d 413, 422, 505 N.E.2d 300; People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733.) A court of review will not substitute its judgment for the trier of fact when evidence is merely conflicting. (People v. Woods (1980), 81 Ill. 2d 537, 542, 410 N.E.2d 866.) Moreover, minor inconsistencies in the testimony of the witnesses do not of themselves create a reasonable doubt as to the defendants’ guilt. People v. Brisbon (1985), 106 Ill. 2d 342, 360, 478 N.E.2d 402.

Once the issue of self-defense has been raised, the State has the burden of proving defendant’s guilt beyond a reasonable doubt. (People v. Ranola (1987), 153 Ill. App. 3d 92, 97, 505 N.E.2d 1191; People v. Woods (1980), 81 Ill. 2d 537, 542, 410 N.E.2d 866.) In reaching its determination, the court must decide whether the facts and circumstances would induce a reasonable apprehension of serious bodily harm in light of defendant’s perception of the situation when he used force against his aggressor. People v. Jones (1988), 176 Ill. App. 3d 460, 464, 531 N.E.2d 88.

As we have heretofore indicated, the evidence established that defendants were the aggressors. Further, they were the only persons who were armed at the time of the shooting. The victim was carrying a radio and resting on a window ledge. There was no serious provocation or threat of imminent death or great bodily harm to defendants from the Disciple gang members who were on the seventh-floor porch. Additionally, had defendants proceeded directly to the tenth floor, which was their purported destination, rather than enter the seventh-floor porch, they would have avoided the confrontation. In view of these facts and the aforestated principles, we believe that there was sufficient evidence for the trial court to conclude beyond a reasonable doubt that defendants committed the offense for which they were convicted.

Defendants also maintain that the trial court violated their right to due process when it shifted the burden of proof of self-defense to defendants by commenting on their failure to call a witness on their behalf. The State argues that the trial court did not shift the burden of proving self-defense to the defendants. We agree. Due process requires the prosecution to prove beyond a reasonable doubt every element of an offense (People v. Salazar (1988), 126 Ill, 6. 2d 424, 449, 535 N.E.2d 766; In re Winship (1970), 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1073), and the “absence of self-defense is an element of every aggravated murder charge” (Moran v. Ohio (1984), 469 U.S. 948, 955, 83 L. Ed. 2d 285, 290, 105 S. Ct. 350, 355). Therefore, as previously noted, once the issue of self-defense has been raised, the State has the burden of proving the defendants’ guilt beyond a reasonable doubt. (People v. Brisbon (1985), 106 Ill. 2d 342, 360, 478 N.E.2d 402.) Moreover, when some evidence of self-defense is presented by a defendant, the State must disprove the defense beyond a reasonable doubt. People v. Estes (1984), 127 Ill. App. 3d 642, 651, 469 N.E.2d 275.

Our review of the record herein disclosed that the State brought forth evidence which established that although Brown testified that he and his armed companions escorted Colson’s cousin “Anthony” to 2417 West Adams to assure the latter’s safe passage to his tenth-floor apartment, neither Colson’s testimony nor defendants’ conduct supports that claim. It should also be noted that Colson testified that he did not know “Anthony’s” last name. The evidence presented by the State further revealed that the defendants went to the building of a rival gang armed with pistols and a sawed-off shotgun. They entered the building and discharged the shotgun. The defendants proceeded to follow the Disciples to the seventh floor. However, prior to entering the seventh-floor porch, Brown directed Colson to act as a lookout and protect the Vice Lords from any violence perpetrated by the Disciples. Defendants then entered the seventh-floor porch where the victim and other Disciples had gathered, and Brown then commenced shooting at the Disciples as the Disciples ran away, although none of the Disciples shot at the defendants. According to defendants’ testimony, they never proceeded to their tenth-floor destination where “Anthony” purportedly resided. Instead, Colson gave his shotgun to “Anthony,” who then accompanied Brown to another building.

The record does not disclose that the trial court based its decision that defendants did not act in self-defense upon the fact that “Anthony” was not called to testify. Moreover, the trial court did not shift to the defendants the burden of proving any of the elements of the crime for which they were charged. In light of our review of the record, we conclude that the facts herein do not support the defendants’ contention that their due process rights were violated. Therefore, defendants’ contention is without merit.

Finally, defendants assert that they were denied effective assistance of counsel when counsel claimed defendants had acted in self-defense but failed to raise the issue of voluntary manslaughter in order to reduce the sentence to which defendants could be subjected. The sixth amendment entitles defendants to the effective assistance of counsel at all stages of all criminal prosecutions. (U.S. Const., amend. VI; Strickland v. Washington (1984), 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692, 104 S. Ct. 2052, 2067.) Moreover, the defense counsel is required by the sixth amendment to serve as a true advocate of the accused. (People v. Hattery (1985), 109 Ill. 2d 449, 461, 488 N.E.2d 513; United States v. Cronic (1984), 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039.) A defendant must show that counsel’s performance was prejudicial to the defense of his case in order to establish ineffective representation by counsel. (People v. Barnard (1984), 104 Ill. 2d 218, 233, 470 N.E.2d 1005; Strickland v. Washington (1984), 466 U.S. 668, 696, 80 L. Ed. 2d 674, 699, 104 S. Ct. 2052, 2069.) In deciding whether a defendant has been ineffectively represented, the court must determine whether there is a reasonable probability that but for the occurrence of counsel’s errors, the result of the case would have been different. People v. Enoch (1988), 122 Ill. 2d 176, 202, 522 N.E.2d 1124; People v. Allanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1846.

In the instant case, defendants contend that they were acting in self-defense when the killing occurred; therefore, counsel should have raised the theory of voluntary manslaughter. Whether a killing is justified under the theory of self-defense depends upon the surrounding facts and circumstances and is to be decided by the trier of fact. (People v. Woods (1980), 81 Ill. 2d 537, 542, 410 N.E.2d 866.) Moreover, the decision of the trier of fact regarding the issue of self-defense will not be disturbed on review unless the decision is so unsatisfactory or improbable as to raise a reasonable doubt as to the defendants’ guilt. (People v. Balfour (1986), 148 Ill. App. 3d 215, 222, 498 N.E.2d 547.) A defendant establishes that he acted in self-defense when he proves that he was not the aggressor, but was confronted with unlawful force, that he reasonably believed the danger of harm was imminent and that the force he used was necessary to defend against that danger. (People v. Kyles (1980), 91 Ill. App. 3d 1019, 1021, 415 N.E.2d 499, 501; People v. Lenzi (1976), 41 Ill. App. 3d 825, 834, 355 N.E.2d 153.) When an accused raises a self-defense argument he may be convicted of voluntary manslaughter when it is established that he committed first degree murder but at the time of the killing he unreasonably believed that he acted in self-defense or he acted under sudden and intense passion resulting “from serious provocation.” Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a)(1).

In the instant matter, it is uncontested that defendants and their fellow Vice Lords were the only individuals who were armed at the time of the shooting. Upon entering its decision, the trial court noted that defendants could have proceeded to the tenth floor without stopping to avoid a confrontation with the Disciples who defendants knew had gathered on the seventh-floor porch. The trial court concluded that defendants were not acting in self-defense but had proceeded to 2417 West Adams to cause “mischief.” Thus, the defendants were the aggressor. Further, there does not appear to be sufficient testimony or other evidence in the record to reasonably justify a finding of voluntary manslaughter. There was no indication that the shooting was a reaction to serious provocation or exonerable under the theory of self-defense. Therefore, under the circumstances of this case, the failure of defense counsel to argue the theory of manslaughter did not constitute ineffective assistance of counsel because there was no showing that failure to raise the manslaughter argument was prejudicial to the defense of the case as required by Strickland, nor would such an argument have altered the result of the proceedings.

For the reasons stated, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

QUINLAN and O’CONNOR, JJ., concur.

      Michael Collins and Kerry Ford were indicted on the same charges and tried with defendants. However, Collins and Ford were acquitted and are not parties to this appeal.


author: JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD COPPAGE, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—1251
    Opinion filed August 14, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Karen A. Popek, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Maureen A. Hartón, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Defendant was tried in absentia in a bench trial and found guilty of burglary. (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1(a).) He was then sentenced to two years’ probation. He now appeals contending that his conviction should be reversed and a new trial ordered because he was not properly admonished in accordance with section 113 — 4(e) of the Code of Criminal Procedure of 1963 (hereafter Code) (Ill. Rev. Stat. 1985, ch. 38, par. 113 — 4(e)); he was never notified of the new trial date by certified mail as required by section 115 — 4.1(a) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4.1(a)); and the State failed to show by a preponderance of the evidence that his absence from the trial was willful.

The record shows that defendant was arrested on July 22, 1986, and subsequently charged by information with the burglary of Turner Language School in Chicago. At a preliminary hearing held November 7, 1986, the following exchange occurred:

“MR. RONKOWSKI (Prosecutor): Our file does not indicate the defendant has been admonished regarding trial in absentitia [sic].
THE COURT: Mr. Coppage, the State is referring to a statute which allows them to try you in your absence if you fial [sic] to appear for court. So make sure you make all your court dates.”

On March 5, 1987, trial commenced with defendant present and represented by counsel. The stipulated testimony of Mr. Malone was entered, indicating that he was employed by the Chicago Board of Education, which owned the property known as Turner Language School at 9300 South Princeton, and that on July 22, 1986, defendant did not have permission or authority to enter the school or remove property therefrom.

Chicago police officer Mark Fortuna then testified that on July 22, 1986, he had responded to a burglary-in-progress report at the Turner Language School and observed defendant and two other men at an open window on the west side of the school. He testified that he first saw defendant positioned half inside and half outside the window. Defendant then jumped out of the window and ran. He was soon apprehended by two other police officers who had also responded to the call.

Fortuna also testified that defendant agreed to make a statement after being informed of his Miranda rights. Defendant told police that he had not entered the school, although his two friends had done so. He also told police the whereabouts of certain items which had been stolen from the school.

After Fortuna testified the State requested a recess due to the fact that its next witness, Officer Tully, was not present. Shortly thereafter the court learned that Officer Tully would not be available, and the case was continued by agreement to March 13, 1986.

On March 13, 1986, the case was called and defendant was present. However, Officer Tully was still not available and the case was passed until 1 p.m. that day.

At 1 p.m. Officer Tully was still not available. At this time, however, defendant did not appear in court. Defense counsel informed the court that defendant was absent because he had gone to pick up a defense witness. The case was passed until 2 p.m., at which time both defendant and Officer Tully were still not present. Thus, the court agreed to another continuance until March 17, 1987. Because defendant had failed to appear, the court issued a bond forfeiture warrant against defendant.

When the case was called on March 17, 1987, defense counsel informed the court that defendant was aware that the trial had been continued to this date but that he was not present due to “transportation problems.” The State then indicated that it was electing to proceed in defendant’s absence. The court refused to proceed “without complying with the statute,” which the court interpreted as requiring that a certified letter be sent to defendant’s last known address and that a substantial showing be made that defendant’s absence was wilful. Therefore, the case was passed until 11 a.m. to await defendant’s arrival.

At 11:15 a.m., however, the trial court reconsidered its position and decided that defendant had been made aware of the court date by counsel and that the statutory requirement that a certified letter be sent to defendant regarding the court date was permissive and not mandatory. The trial court then held that the only statutory requirement was to wait two successive court dates before proceeding without defendant, upon a finding that his absence was willful, and that this requirement had been met. Therefore, the court allowed the State to proceed with its case. Officer Tully testified and corroborated Officer Fortuna’s testimony in every detail.

After Officer Tully’s testimony, the court continued the case until 1 p.m. that day to give defendant another chance to appear. However, at 1 p.m. defendant had still not arrived, and the court refused to grant another continuance to allow defense counsel an opportunity to locate defendant. Therefore, defense counsel merely submitted copies of the police reports, which contained defendant’s statement that he had not entered the school building. The court then found defendant guilty of burglary.

On April 15, 1987, defendant’s sentencing hearing was held. Defendant, who had surrendered to police on March 25, 1987, was present. The trial court first denied defendant’s motion for a new trial and then sentenced him to two years’ probation. Defendant appeals, contending that the trial court erred by proceeding with the trial in absentia because (1) he was insufficiently admonished that his right to confront the witnesses against him would be waived by his failure to appear at trial; (2) he was not notified of the new court date by certified mail; and (3) the State failed to make a prima facie showing that his absence had been willful.

We first address the State’s claim that defendant has waived his right to present these issues to this court because he failed to make a post-trial motion for a new trial pursuant to section 115— 4.1(e) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4.1(e)) and because he failed to raise the issues presented here in the new-trial motion that he did file. We cannot accept the State’s argument that defendant waived the issues he now raises by his failure to file a section 115 — 4.1(e) motion. Section 115 — 4.1(e) of the Code states:

“When a defendant who in his absence has been either convicted or sentenced or both convicted and sentenced appears before the court, he must be granted a new trial or new sentencing hearing if the defendant can establish that his failure to appear in court was both without his fault and due to circumstances beyond his control. A hearing with notice to the State’s Attorney on the defendant’s request for a new trial or a new sentencing hearing must be held before any such request may be granted. At any such hearing both the defendant and the State may present evidence.” (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4.1(e).)

However, our supreme court held in People v. Partee (1988), 125 Ill. 2d 24, 530 N.E.2d 460, that a section 115 — 4.1(e) motion was not a procedural or jurisdictional prerequisite to a direct appeal. Rather, a section 115 — 4.1(e) motion is a collateral attack and a request for a parallel proceeding which provides defendant with an additional means of securing a new trial. See also People v. Muir (1983), 113 Ill. App. 3d 1096, 448 N.E.2d 233; People v. Stark (1984), 121 Ill. App. 3d 787, 460 N.E.2d 47; People v. Sayles (1985), 130 Ill. App. 3d 882, 474 N.E.2d 870.

Furthermore, a section 115 — 4.1(e) motion, in which defendant would have the burden of proving that his absence was not willful, varies greatly from a direct appeal, where defendant asserts that the State failed to meet its burden of making a prima facie showing that defendant’s absence was willful. Since these two approaches are conceptually different, defendant’s failure to utilize one approach should not act as a bar to the other.

However, this does not completely resolve the issue of waiver. The question still remains whether defendant’s failure to raise the specific issues he now raises in the new-trial motion he filed acts as a bar to his appeal. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Although we agree that a defendant waives issues not specifically raised both in trial and in a post-trial motion, we find that the issues raised by defendant here, if found to be error, would amount to plain error and, thus, we shall proceed to address defendant’s issues on the merits.

Defendant’s first issue on appeal is whether he was sufficiently admonished that his failure to appear at trial could result in the waiver of his right of confrontation. Defendant concedes that on November 7, 1986, the court informed him that if he failed to appear for trial or any scheduled court dates, he could be tried in absentia. However, defendant contends that this warning was insufficient to comply with the statute. (See Ill. Rev. Stat. 1985, ch. 38, par. 113 — 4(e).) Defendant argues that only strict compliance with the statute protects a defendant’s constitutional rights and, thus, the cases which approve only substantial compliance, namely People v. Broyld (1986), 146 Ill. App. 3d 693, 497 N.E.2d 147, People v. Clark (1981), 96 Ill. App. 3d 491, 421 N.E.2d 590, and People v. Powell (1981), 95 Ill. App. 3d 93, 419 N.E.2d 708, were decided incorrectly.

We disagree. We acknowledge that the right of a defendant to be present at trial is substantial and that trials in absentia should be abhorred because of their inherent unfairness to the defendant. (People v. Lester (1988), 165 Ill. App. 3d 1056, 519 N.E.2d 1127.) However, statutory law allows a defendant to be tried in absentia if properly admonished pursuant to section 113 — 4(e) of the Code, which states:

“If a defendant pleads not guilty, the court shall advise him at that time or at any later court date on which he is present that if he escapes from custody or is released on bond and fails to appear in court when required by the court that his failure to appear would constitute a waiver of his right to confront the witnesses against him and trial could proceed in his absence.” (Ill. Rev. Stat. 1985, ch. 38, par. 113-4(e).)

We construe this provision to be a directive to the trial courts to notify defendants of their constitutional right to be present at their own trial, as well as caution them that they may forfeit that right by their willful absence. The exact wording used by the court to convey this message to defendant should be scrutinized to determine whether it sufficiently apprises the defendant of his right to be present so that a subsequent willful absence may be interpreted as a knowing waiver. However, the specific words used are not important as long as it is apparent that defendant was made aware that he has the right to be present at his trial but that his absence need not preclude the court from proceeding. Since defendant was advised to appear for all court dates and informed that trial could proceed without him, we find that there was substantial compliance with the statute and that defendant’s rights were sufficiently protected. Powell, 95 Ill. App. 3d 93, 419 N.E.2d 708; Clark, 96 Ill. App. 3d 491, 421 N.E.2d 590; Broyld, 146 Ill. App. 3d 693, 497 N.E.2d 147.

Defendant next contends that he never received notice of the new court date by certified mail in contravention of section 115— 4.1(a) of the Code. (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4.1(a).) However, we find a fundamental error in defendant’s argument. Section 115 — 4.1(a) of the Code states in pertinent part:

“When a defendant after arrest and an initial court appearance for a non-capital felony, fails to .appear for trial, at the request of the State and after the State has affirmatively proven through substantial evidence that the defendant is willfully avoiding trial, the court may commence trial in the absence of the defendant. *** If trial had previously commenced in the presence of the defendant and the defendant willfully absents himself for two successive court days, the court shall proceed to trial. All procedural rights guaranteed by the United States Constitution, Constitution of the State of Illinois, statutes of the State of Illinois, and rules of court shall apply to the proceedings the same as if the defendant were present in court and had not either forfeited his bail bond or escaped from custody. The court may set the case for a trial which may be conducted under this Section despite the failure of the defendant to appear at the hearing at which the trial date is set. When such trial date is set the clerk shall send to the defendant, by certified mail at his last known address indicated on his bond slip, notice of the new date which has been set for trial. Such notification shall be required when the defendant was not personally present in open court at the time when the case was set for trial." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4.1(a).)

The underscored portion of the cited statute, which indicates that a defendant must be notified by certified mail of the court date, applies only to those situations where the case is being set for trial and where defendant has failed to appear at the hearing at which the court date is set. On the other hand, the statute clearly indicates that in those situations where trial has previously commenced in the presence of the defendant and thereafter defendant willfully absents himself from the proceedings, the court “shall proceed” after waiting two successive court days. We find that the statute addresses two distinct sets of circumstances which are mutually exclusive and that the trial court acted correctly and according to statute when it proceeded with trial after waiting two successive court days after determining that defendant willfully absented himself from the proceedings.

In People v. Flores (1984), 104 Ill. 2d 40, 470 N.E.2d 307, our supreme court approved a trial in absentia where the defendant failed to appear the second day of trial. The Flores court determined that the two-day waiting period was permissive and not mandatory. It held that a defendant should not benefit from his own defiance of the judicial system and that to construe section 115 — 4.1(a) of the Code to require a two-day waiting period would be disruptive to the court’s docket and, thus, an unconstitutional infringement upon the powers of the judiciary. Although Flores does not directly address the mailing provision, it seems clear the provision was not complied with. In addition, the rationale expressed in Flores lends support for our finding that the mailing provision is inapplicable to those instances where trial has already commenced, as in the present case.

We also note that common sense and simple logic dictate that the mailing provision be inapplicable to situations where trial has already begun. A fundamental rule of statutory construction is that each word, clause or sentence must be given some reasonable meaning if possible. (Flores, 104 Ill. 2d at 52.) However, if we construed the mailing provision to be applicable to situations where trial has already commenced, the directive to the court to proceed with trial after waiting two successive court days would be rendered meaningless, or the mailing provision would be a useless gesture, since in many instances notification by certified mail would not reach a defendant before trial would recommence.

Finally, we address defendant’s contention that the State failed to show that his absence was willful. In People v. Devoe (1987), 163 Ill. App. 3d 855, 516 N.E.2d 1017, the court held that to prima facie establish that a defendant’s absence was willful avoidance, the State need only show that it complied with the statutory requirements and that defendant was not present in court. Since we have determined above that the statutory requirements were met, it follows that a prima facie showing of willful avoidance was also set forth.

We further find that the trial court did not err by determining that defendant’s absence was willful. Although defendant was not present in court when the case was continued the second time, defense counsel, as an officer of the court, informed the court that defendant had been contacted regarding the court date. When counsel further indicated that defendant was experiencing transportation difficulties and would be present by 11 a.m., the court passed the case. However, when defendant did not appear by that time, the court reasonably concluded that defendant willfully failed to appear and recommenced the trial. In light of the fact that defendant’s bond had been forfeited and a warrant issued due to his previous absence from court and defendant still did not appear by 1 p.m. on March 17, 1987, we find no error in the court’s actions.

The judgment of the circuit court is affirmed. Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request that defendant be assessed $50 as costs for the State’s defending this appeal and incorporate it as part of our judgment.

Affirmed.

MANNING, P.J., and O’CONNOR, J ., concur.


author: JUSTICE O’CONNOR

text:
    RENEE PARKS, on behalf of Corey Parks, a Minor, Petitioner-Appellant, v. JOHN ROMANS, Respondent-Appellee.
    First District (1st Division)
    No. 1—88—1924
    Opinion filed August 14, 1989.

      Cecil A. Partee, State’s Attorney, of Chicago (Caroline 0. Shoenberger and Leonard N. Foster, Assistant State’s Attorneys, of counsel), for appellant.
    Bernard Davis, of Chicago (Leonard D. Litwin, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from an order of the trial court limiting the amount of child support to the amount granted by the Illinois Department of Public Aid (IDEA), denying retroactive support and entering a withholding order applicable only to defendant’s current employer. We reverse and remand for further proceedings.

On December 29, 1986, Renee Parks, a public aid recipient, filed a complaint alleging that defendant, John Romans, was the father of her minor child, Corey L. Parks. A paternity judgment was entered against Romans on February 24,1987.

At a support hearing held on July 24, 1987, Romans testified that he was regularly employed, that his semimonthly net income was $644.86, and that he contributed to the support of a 35-year-old sister in Jamaica. His attorney later informed the court that he was also providing some support for another child attending college in New York.

The court took judicial notice that the assistance grant for a parent and two children is $341 per month, with $76.50 per month attributable to each child. The court held that the only consideration in the case was the amount of reimbursement due IDEA and entered an order for current support of $76.50 per month. Over the objections of plaintiff’s counsel, the court ordered that payment would not begin until September 1, 1987. The trial court also entered a withholding order showing defendant’s current employer as the payor over plaintiff’s objection that the order should be made applicable to any payor. The court further held that the State’s Attorney could not represent both the custodial parent and the IDPA in the proceedings and that the withholding statute, as written, was unenforceable.

On appeal plaintiff contends that the trial court erred in limiting the amount of support to the amount of the assistance grant as defendant’s earnings mandated a higher award under the statutory guidelines. Plaintiff maintains that the minor child is entitled to 20% of defendant’s net income under the statute ($128.97 semimonthly) and that the court 'impermissibly awarded a lesser amount without justifying doing so -with written findings. Defendant contends that the child’s public aid status and the amount of public aid received were relevant factors to be considered by the trial court under section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)), and therefore, the trial court’s support order in the amount of the public aid award was not an abuse of discretion.

The Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2501 et seq.) provides in pertinent part:

“[I]n determining the amount of any child support award, the court shall use the guidelines and standards set forth in subsection (a) of Section 505 of the Illinois Marriage and Dissolution of Marriage Act ***.” Ill. Rev. Stat. 1987, ch. 40, par. 2514(a).

Section 505(a) of the Dissolution Act sets the guidelines for a single child at 20% of the supporting parent’s net income as determined under subsection 505(a)(3). Subsection 505(a)(2) provides that the 20% guideline shall be applied unless there is evidence to support deviation, lists some relevant factors and requires the court to make express findings to justify a lower award. Section 505(a) has been held to create a rebuttable presumption that a specified percentage of a noncustodial parent’s income constitutes an appropriate child support award. (See In re Marriage of Blaisdell (1986), 142 Ill. App. 3d 1034, 1041-42, 492 N.E.2d 622.) Moreover, consideration of the statutory provisions of section 505(a) is mandatory rather than directory. (In re Marriage of Hilkovitch (1984), 124 Ill. App. 3d 401, 416, 464 N.E.2d 795.) A trial court deviating from the guidelines is required to consider evidence on such factors as the financial resources and needs of the child and the custodial and noncustodial parents, the standard of living the child would have enjoyed if the household had been one, and the physical and-emotional condition of the child and his educational needs. Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(2).

The trial court here did not hear evidence on the above statutory factors. The court instead concluded that the only relevant issue was the amount of reimbursement due IDPA and held that the amount mandated by the guidelines could be awarded only if safeguards were established to prevent plaintiff and her other child from benefitting from the support money paid on behalf of the minor in issue here. While recognizing that the guidelines are mandatory, the court declined to follow them in the apparent belief that pursuant to the Deficit Reduction Act of 1984, Public Law No. 98 — 369 (98 Stat. 494) (codified as amended in 42 U.S.C. §602 (Supp. IV 1986)) to do so would require defendant to pay an amount that would result in the family’s entire assistance grant being cancelled.

This concern is unwarranted. Although under the Deficit Reduction Act plaintiff’s monthly grant would be reduced as a result of the support from the noncustodial father, the effect here would not cause plaintiff’s grant to be cancelled. The first $50 per month of child support collected by the State from the noncustodial parent is “passed through” to the family receiving assistance. Plaintiff here, therefore, would receive her monthly assistance grant of $341 for herself and two children plus the first $50 of the child support payment assigned by plaintiff to the State. Assuming the minor’s expenses were, in fact, $76.50 per month, the minor child would be “contributing” one-third of the $391 total grant or $131 to the household, $54.50 over the amount allocated to the minor by Aid to Families with Dependent Children (AFDC). This result is more consistent with the purpose of the AFDC program, which is to insure the well-being of children irrespective of whether their parents were ever married, than the application of a presumption that a child on AFDC is only entitled to a child support award in the amount of an AFDC grant.

We find that People ex rel. Sheppard v. Money (1988), 124 Ill. 2d 265, 529 N.E.2d 542, is controlling here. In Sheppard, the same trial court entered a child support award equal to the monthly amount that the minor received in public aid. The Illinois Supreme Court reversed and remanded for a determination of the amount of support appropriate in light of the guidelines set forth in section 14(a) of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2514(a)).

In the case at bar the trial court also held that the withholding order statute was an invalid mandate of legislative authority to the judiciary and that the statute also improperly delegated judicial authority to employers and to the clerk of the court. Accordingly, the court entered an order for withholding showing the name and address of defendant’s current employer rather than making the order applicable to “any payor” as requested by plaintiff. Plaintiff now contends that this .was error, where the statute provides that the order for withholding shall direct “any payor” to withhold an amount equal to the order for support. See Ill. Rev. Stat. 1987, ch. 40, par. 2520(B)(3).

This issue also is controlled by People ex rel. Sheppard v. Money (1988), 124 Ill. 2d 265, 529 N.E.2d 542. In Sheppard, the trial court had entered an order holding that the withholding statute was unconstitutional. Upon direct appeal pursuant to Supreme Court Rule 302 (107 Ill. 2d R. 302), the supreme court reversed. The court stated:

“[W]e conclude that the procedures for wage withholding afford substantial protection to an obligor’s interest in his or her property. Withholding does not cut off other substantive rights, as the amount of withholding may be adjusted. An obligor is not denied access to the courts. The obligor is afforded adequate notice of the opportunity to be heard at meaningful times and in a meaningful manner.” (Sheppard, 124 Ill. 2d at 280.)

The court noted that “[t]he entry of an order for withholding directed to ‘any payor’ is consistent with the congressional mandate and our legislative scheme.” (Sheppard, 124 Ill. 2d at 282.) The court reasoned that since an order for withholding must apply to any source of income available to the obligor and not just to a single employer, it was necessary that orders be directed to “any payor” in order to accomplish the legislative goals. (Sheppard, 124 Ill. 2d at 283.) In light of Sheppard, we remand this matter to the trial court with directions to enter an order of withholding directed to “any payor” rather than solely to defendant’s current employer.

Plaintiff also contends that the trial court erred in holding that an inherent conflict of interest between plaintiff and the IDPA precluded the State’s Attorney from representing both. Plaintiff points out that although the complaint at issue was signed by Renee Parks on behalf of the minor, Corey Parks, the trial court based its ruling solely on the reimbursement claim of IDEA, holding that where there was an IDEA grant, the State’s Attorney could not represent the interest of the grantee. Defendant maintains that it was sufficient that a hearing was held prior to the entry of the support award and contends that plaintiff was adequately represented. Defendant further suggests that if the child was prejudiced thereby, she could show a change of circumstances and seek modification of the support order.

Although plaintiff was ostensibly represented by the State’s Attorney’s office, the trial court found that the only relevant support issue was the amount of the IDEA grant to the minor child. Thus the trial court refused to consider plaintiff’s claim that under section 505 of the Dissolution Act (Ill. Rev. Stat. 1987, ch. 40, par. 505), plaintiff might be entitled to 20% of the defendant father’s income, an amount substantially higher than the $76.50 IDPA grant. Plaintiff's interest was clearly independent of the IDPA’s interest in reimbursement. Therefore we must consider whether the alleged conflict existed and whether plaintiff’s due process rights were denied as a result of the trial court’s ruling.

Pursuant to section 12 — 16 of the Illinois Public Aid Code (Ill. Rev. Stat. 1987, ch. 23, par. 12 — 16), IDPA has contracted for representation in Cook County by the State’s Attorney’s office. Section 18(b) of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2518(b)) provides that upon the request of a mother or child seeking to establish paternity, the State’s Attorney must represent the mother or child in the trial court for the purpose of establishing or enforcing an order for support.

The IDPA grant received by the minor child is provided under the Title IV-D program of the Social Security Act. It is provided in order to insure that the grant family will not be at risk for lack of food, clothing and shelter. As in any insurance program, IDPA as the insurer reserves the right to proceed against a third party liable for support of the grant family in order to recover its payments from any third-party recovery. Not only are the custodial parent and the minor child necessary parties in an action to recover from a third-party obligor, the parent and child agreed to IDPA’s right of reimbursement as a condition of receiving the assistance grant. The recipient plaintiff is not required to repay IDPA for past benefits unless retroactive support is collected from defendant.

We recognize that if the support from defendant was sufficient to cancel all assistance to the family, a potential conflict would arise which would require informed consent. Here, however, the interest of the IDPA and the recipient are not in conflict and the State’s Attorney would have been able to represent the interests of both. (See Rogers v. Robson, Masters, Ryan, Brumund & Belom (1979), 74 Ill. App. 3d 467, 473-74, 392 N.E.2d 1365, affd (1980), 81 Ill. 2d 201, 407 N.E.2d 47.) We therefore hold that the trial court erred in terminating plaintiff’s representation by the State’s Attorney’s office and erred in holding that the State’s Attorney’s office could not represent the custodial parent where the parent was the recipient of an IDPA grant where, as here, there was no conflict of interest.

Plaintiff’s final argument is that the trial court erred in denying retroactive support and making the support order effective six weeks after the entry of the order.

The statute provides that the court may order any child support payments to be made for a period prior to the commencement of the action, including payments to reimburse any public agency for assistance granted on behalf of the child. (See Ill. Rev. Stat. 1987, ch. 40, par. 2514(b).) Courts are directed to consider five equitable factors in determining whether retroactive support should be ordered, including the extent to which the mother and the public agency previously informed the father of the child’s needs and the extent to which the father would be prejudiced by the delay in bringing the action.

While plaintiff sought to reserve the issue of retroactive support, the record reflects no evidence of the amount of support paid by public aid for which reimbursement was sought and no petition for reimbursement was filed. The only factors considered by the trial court were that the father was employed at a salary of approximately $19,000 per year, and that he was economically assisting a disabled sister in Jamaica and another child in college in New York. Because the requisite statutory factors were not adequately addressed in the trial court, we remand with directions to determine whether retroactive benefits are appropriate in accordance with section 14(b) of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2514(b)).

For the reasons stated above, we reverse the judgment of the circuit court of Cook County and remand with directions to determine the appropriate amount of child support, to enter a withholding order in accordance with the statutory guidelines, and to determine whether child support, should be granted retroactively based on the factors set out in section 14(b) of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2514(b)).

Judgment reversed and remanded with directions.

CAMPBELL and BUCKLEY, JJ., concur.


text:
    MAUDIE CHRISTMAS, Plaintiff, v. JESSE HUGHES, Defendant and Third-Party Plaintiff-Appellant (Lawrence J. Williams, Third-Party Defendant-Appellee).
    First District (1st Division)
    No. 1—88—2877
    Opinion filed August 14, 1989.

      Parrillo, Weiss & Moss, of Chicago (Keely Truax, of counsel), for appellant.
    Jesmer & Harris, of Chicago (Laurie A. Pegler, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Maudie Christmas was injured in an automobile collision involving a Yellow Cab. Christmas executed a covenant not to sue Yellow Cab and sued Jesse Hughes, driver of another car. Hughes brought a third-party claim for contribution against Lawrence Williams, driver of the Yellow Cab. The trial court granted Williams’ motion to dismiss the contribution claim due to the covenant not to sue. Hughes appeals.

On September 30, 1984, Maudie Christmas was a passenger in a car that was involved in a collision on Yates Avenue near 71st Street, Chicago. The record and the briefs are unclear as to whether two or three cars collided, who was driving which car, and in which car Christmas was a passenger. The record does show, however, that one of the cars was a Yellow Cab driven by Lawrence Williams and that Jesse Hughes was the driver of another car.

On June 18, 1985, Christmas executed a covenant not to sue the Yellow Cab Company and its agents, servants and employees for the injuries she sustained in the collision. Christmas received $300 in consideration for the covenant. On May 6, 1986, Christmas filed suit against Hughes. On July 10, 1988, Hughes filed a third-party complaint for contribution against Williams.

On July 27, 1988, Williams moved to dismiss the contribution claim due to the covenant not to sue. A copy of the covenant was attached to the motion. The existence of the covenant was not challenged, and Hughes’ attorney conceded that it applied to Williams. The trial court granted Williams’ motion and dismissed the contribution claim with prejudice. Hughes appeals.

Hughes argues that the motion to dismiss the contribution claim was improperly considered because no affidavits accompanied the motion. Hughes also argues that granting the motion to dismiss was error because Williams failed to allege, and the court failed to find, that the covenant not to sue had been made in good faith. Both arguments are without merit.

Hughes first argues that the trial court improperly considered Williams’ motion because no affidavits were filed with the motion, a requirement of section 2 — 619 of the Code of Civil Procedure, where the basis for the motion is not apparent on the face of the pleadings. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619.) Although the motion was not supported by affidavits, a copy of the covenant not to sue was submitted with the motion, and its existence was undisputed. Therefore, the covenant not to sue sufficed to support consideration of the motion. See White Way Sign & Maintenance Co. v. Montclare Lanes, Inc. (1976), 42 Ill. App. 3d 199, 201, 355 N.E.2d 632. See also Hays v. Louisiana Dock Co. (1983), 117 Ill. App. 3d 512, 452 N.E.2d 1383, appeal denied (1983), 96 Ill. 2d 560; Meyer v. Murray (1979), 70 Ill. App. 3d 106, 387 N.E.2d 878.

Hughes next argues that Williams failed to show, and the trial court failed to find, that the covenant not to sue between Christmas and Yellow Cab had been made in good faith. Neither the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.) nor any case, however, requires an allegation of good faith. Rather, Hughes had the burden of showing that the covenant was made in bad faith. (Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 478 N.E.2d 581; McCormick v. McCormick (1983), 118 Ill. App. 3d 455, 455 N.E.2d 103; Blaylock v. Toledo, Peoria & Western R.R. Co. (1976), 43 Ill. App. 3d 35, 356 N.E.2d 639.) Hughes did not raise the issue of bad faith in the trial court; therefore, the issue was waived. Even assuming that the issue was preserved for appeal, Hughes could not prevail.

Hughes contends that because the consideration paid for the covenant, $300, was very low in comparison to the more than $15,000 in damages asked, the covenant was executed in bad faith. Although comparison of the settlement to the damages asked has been used to determine good faith, the current trend rejects the so-called “ratio test” (e.g., Doellman v. Warner & Swasey Co. (1986), 147 Ill. App. 3d 842, 849, 498 N.E.2d 690; Ballweg v. City of Springfield (1984), 130 Ill. App. 3d 241, 250, 473 N.E.2d 342, aff’d in part, rev’d in part (1986), 114 Ill. 2d 107, 499 N.E.2d 1373; Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 94, 463 N.E.2d 792, appeal denied (1984), 101 Ill. 2d 547), or treats it as only one factor in determining good faith. (O'Connor v. Pinto Trucking Service, Inc. (1986), 149 Ill. App. 3d 911, 916, 501 N.E.2d 263; Perez v. Espinoza (1985), 137 Ill. App. 3d 762, 763-64, 484 N.E.2d 1232.) A settlement will not be overturned absent clear and convincing evidence of fraud or mutual mistake (Kalman v. Bertacchi (1978), 57 Ill. App. 3d 542, 373 N.E.2d 550), and the decision whether to hold a hearing on the settlement lies within the discretion of the trial court. See Perez v. Espinoza (1985), 137 Ill. App. 3d 762, 763-64, 484 N.E.2d 1232; Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 128, 478 N.E.2d 581; Pell v. Victor J. Andrew High School (1984), 123 Ill. App. 3d 423, 435, 262 N.E.2d 858, appeal denied (1984), 101 Ill. 2d 567.

Here, the only attack on the good faith of the covenant made before the trial court was an assertion by Hughes’ attorney that there had been no showing of good faith. Hughes offered no evidence, in fact did not even assert, that the covenant had been made on the basis of fraud or mutual mistake or any other grounds that might support a finding of bad faith. Nor did he request a hearing on the issue. Hughes does argue the fundamental fairness of the covenant, however, asserting that he was not given the same opportunity as Yellow Cab to settle with Christmas. Bad faith is not necessarily indicated, however, where a settlement has been made simply to avoid third-party liability. (Dixon v. Northwestern Publishing Co. (1988), 166 Ill. App. 3d 745, 752, 520 N.E.2d 932.) In the absence of any showing of bad faith, the trial court did not abuse its discretion in granting Williams’ motion to dismiss.

Despite conceding that the covenant applied to Williams, Hughes further argues that the covenant not to sue was in the nature of a contract between Christmas and the Yellow Cab Company and could not reach contribution claims against Williams. The covenant states, however, that Christmas agreed “forever to refrain from instituting, pressing, or in any way aiding any claim, or suit against Yellow Cab Company or any of its agents, servants or employees.” (Emphasis added.) Thus, the covenant released Yellow Cab from any claim, including contribution claims (see Rakowski v. Luiente (1984), 104 Ill. 2d 317, 472 N.E.2d 791), and specifically included Yellow Cab’s agents, servants and employees. Thus, the covenant reached any claims brought against Williams.

The trial court’s dismissal of the contribution claim was consistent with the provisions of section 2 of the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 302), which provides:

“Right of Contribution, (a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.
* * *
(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury of wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.
(d) The tortfeasor who settles with a claimant pursuant to paragraph (c) is discharged from all liability for any contribution to any other tortfeasor.
(e) A tortfeasor who settles with a claimant pursuant to paragraph (c) is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement.” (Ill. Rev. Stat. 1987, ch. 70, par. 302.)

Thus, a joint tortfeasor, who, like Williams, is included in the terms of a covenant not to sue, is discharged from all liability for any contribution to any other tortfeasor.

In summary, the covenant not to sue was sufficient to support consideration of Williams’ motion to dismiss, the trial court was within its discretion to grant the motion absent any evidence of bad faith, and its ruling was consistent with the Contribution Act. Accordingly, the dismissal of the contribution claim is affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.