author: JUSTICE SCOTT PRESIDING JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHARON K. STREIT, Defendant-Appellant.
    Third District
    No. 3—89—0397
    Opinion filed January 18, 1990.
    HEIPLE, P.J., concurring in part and dissenting in part.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Sharon K. Streit, pled guilty to two counts of State benefits fraud (Ill. Rev. Stat. 1987, ch. 38, par. 17 — 6). The trial court accepted her pleas and entered judgments of conviction on both counts. The court thereafter sentenced the defendant to concurrent terms of two years’ imprisonment. She appeals.

The record shows that count I against the defendant alleged that from August of 1982 through September of 1986, she had obtained monetary benefits from the State of Illinois through the knowing misrepresentation of her employment and financial status. Count II alleged that from September of 1987 through May of 1988, she had engaged in the same conduct as alleged in count I.

The factual basis for the defendant’s guilty pleas showed that from August of 1982 through September of 1986 the defendant received public aid in the form of Aid to Dependent Children (ADC) benefits and food stamps on the basis of her claim that she was unemployed. The defendant was in fact employed at the East Moline Care Center. As a result, she received $19,199 in excess benefits. In September of 1987, the defendant filed for bankruptcy and reapplied for ADC benefits and food stamps, claiming once again that she was unemployed. During this time, however, she was employed by Care Home, Incorporated. She continued receiving public aid benefits until May of 1988 and received a total of $3,202 in excess benefits.

In exchange for the defendant’s guilty pleas, the State agreed to recommend a sentence of no more than three years’ imprisonment. At the sentencing hearing, the defendant testified that she was a 47-year-old divorcee. She stated that when she committed the offenses, she had just obtained her general equivalency degree and was working at the East Moline Care Center. The defendant explained that she was unable to support herself and her three daughters on the minimum wage she was earning. The money she received from public aid was used to make her house and car payments and to purchase clothes for the children. She further stated that until recently she had been working two and three jobs. She estimated that she was working approximately 95 hours per week. The defendant noted that she had no alcohol or drug problems. She did, however, suffer from diabetes and required daily medication. Her only involvement with the police had been for minor traffic offenses. She testified that she felt very bad about what she had done and that she was prepared to pay 20% of her take-home pay, along with any tax refund she received, toward restitution. Several of the defendant’s family members testified that the defendant was very remorseful and that she could successfully complete a term of probation.

The State recommended a term of 30 months’ probation coupled with the conditions that she serve six months of home detention and pay restitution in the amount of 20% of her take-home pay. The State’s Attorney noted that a term of imprisonment in this case would simply be “throwing good money after bad,” and would be the least likely method of recouping the State’s loss.

In mitigation the trial court noted that the defendant’s conduct had not caused or threatened serious harm to another. It further noted that the money was used in part to support her children. However, the court stated that “some kind of message” had to be sent to the community regarding the seriousness of the offense. Therefore, it sentenced the defendant to two years’ imprisonment.

The defendant initially argues on appeal that her conviction on count I must be reversed because it was based upon conduct that occurred prior to the effective date of the statute. Count I alleged that from August of 1982 through September of 1986, the defendant obtained monetary benefits through the knowing misrepresentation of her employment and financial status. The State benefits fraud statute was not legally operative, however, until January 1, 1983. (Pub. Act 82 — 999, eff. Jan. 1, 1983.) Therefore, the defendant could not be charged under that statute for conduct occurring prior to January 1, 1983. People v. Wasson (1988), 175 Ill. App. 3d 851, 530 N.E.2d 527.

We note that although count I was clearly defective in charging the defendant with acts occurring prior to 1983, the count further alleged that she committed the same acts through 1986. The defendant could be properly charged with the offense of State benefits fraud for acts committed from January 1, 1983, through September 1986. In this regard, we find that the charging instrument contained sufficient information to apprise the defendant of the charge with enough particularity to enable her to prepare her defense and to protect her from double jeopardy. Therefore, since the defect was merely a formal one, her conviction for fraud committed from January 1, 1983, through September 1986 will be upheld. Cf. People v. Wasson (1988), 175 Ill. App. 3d 851, 530 N.E.2d 527.

The defendant next argues that the trial court abused its discretion in sentencing her to concurrent terms of two years’ imprisonment.

Initially, we note that the trial court’s sentencing decision is entitled to great deference and will not be altered on review unless it represents an abuse of, discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The sentence must, however, be proportionate to the offense and serve the objective of restoring the offender to useful citizenship. People v. Nelson (1982), 106 Ill. App. 3d 838, 436 N.E.2d 655.

It is interesting to note that in the instant case the State’s Attorney recommended that the defendant be sentenced to home detention rather than a term of imprisonment. He stated that sentencing the defendant to incarceration would merely drain the State’s funds even more than had already been lost by the defendant’s acts.

The record reveals that the defendant had no prior criminal history aside from minor traffic offenses. She stated that she had no alcohol or drug problems. The uncontroverted evidence showed that she was unable to raise her three children on the minimum wage she received and that she used the public aid to support her children. Further, she expressed remorse for her actions and said she was willing to pay 20% of her weekly earnings, along with any income tax refund she received, toward restitution.

We find that the trial court abused its discretion in sentencing the defendant to two years’ imprisonment. It is not our intention to deprecate the seriousness of the instant offenses. The defendant fraudulently procured over $22,000 in public aid benefits. However, we are unable to find that a two-year sentence of imprisonment would be of any benefit to society, to the defendant, or to our system of justice. Therefore, pursuant to Supreme Court Rule 615(b) (107 Ill. 2d R. 615(b)), we vacate the defendant’s sentence and remand the cause to the trial court for the imposition of a more appropriate sentence. Further, the defendant’s conduct prior to 1983 should not be considered in resentencing.

The judgment of the circuit court of Rock Island County finding the defendant guilty is affirmed; the defendant’s sentence is vacated and the cause is remanded for resentencing.

Affirmed in part; vacated and remanded in part.

WOMBACHER, J., concurs.

PRESIDING JUSTICE HEIPLE,

concurring in part and dissenting in part:

The defendant, Sharon Streit, was charged with two counts of State benefits fraud (Ill. Rev. Stat. 1987, ch. 38, par. 17 — 6). The prosecution alleged that defendant received public aid based on her unemployed status while she was, in fact, employed. The alleged incidents occurred between August 1982 and May 1988. Defendant pleaded guilty to both counts in exchange for the State’s agreement to recommend a sentence of no more than three years. At the sentencing hearing the State recommended a term of 30 months’ probation, six months’ home detention, and restitution. The trial court sentenced defendant to concurrent terms of two years’ imprisonment, the minimum sentence allowed by statute for a Class 3 felony conviction. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—l(aX6).

The issues on appeal are whether defendant’s conviction on count I must be reversed because it was based upon conduct that occurred prior to the effective date of the statute, and whether the trial court abused its discretion in sentencing her to concurrent terms of two years’ imprisonment. The majority concludes that any defect in count I was merely formal, and the conviction stands. The majority reverses and remands, however, based on its conclusion that the trial court abused its discretion in sentencing defendant. I respectfully disagree with that portion of the opinion.

Defendant admitted that over more than four years, August 1982 through September 1986, she received $19,199 in benefits to which she was not entitled. Defendant claimed she was unemployed in order to qualify for the benefits, but she actually held employment during that period. Defendant repeated this scenario between September 1987 and May 1988, collecting another $3,202 in excess benefits.

A trial court’s sentencing decision is entitled to great deference and will not be altered on review unless it represents an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149.) The record establishes that the court carefully examined the evidence before it when imposing the sentence. The court was offered evidence of mitigating and aggravating factors, and gave required consideration to defendant’s rehabilitative potential as well as the nature of the crime, protection of the public, deterrence and punishment. (People v. Darnell (1981), 94 Ill. App. 3d 830.) There is no indication that the trial court abused its discretion.

While it is a fact that the State recommended probation, it is imperative to remember that the comments of the State regarding sentencing are not decisions, but merely recommendations. The case at bar did not involve a negotiated sentence, but rather an open plea by defendant. A sentencing recommendation by the prosecution is not binding on the court. People v. Stidham (1989), 178 Ill. App. 3d 643.

The trial court did not exceed its discretionary powers in sentencing defendant to a term of imprisonment rather than probation. The trial court is in the best position to balance the appropriate factors and reach a determination of whether or not probation should be granted. (People ex rel. Ward v. Moran (1973), 54 Ill. 2d 552.) In the instant case, defendant committed two separate series of serious offenses. State benefits fraud is a costly crime to taxpayers, and the trial court recognized the need to acknowledge the seriousness of the offense and deter others from pursuing similar avenues. A term of imprisonment was deemed necessary to accomplish the trial court’s goals.

The Illinois Supreme Court has established that a reviewing court does not have authority to reduce a sentence of imprisonment to one of probation. (People v. Cox (1980), 82 Ill. 2d 268.) Since a two-year prison term is the minimum statutory sentencing, a reversal and remand is tantamount to reducing the sentence to probation. The decision of the majority amounts to a usurpation of the sentencing powers which have been specifically delegated to the trial court and denied to the appellate court. Such arrogation represents an evasion of judicial precedent and our own supreme court rule of law. I dissent.


source: Caselaw Access Project

author: JUSTICE WOMBACHER PRESIDING JUSTICE HEIPLE,

license: Public Domain

text:
    MARIANNE SCHLOSSER, d/b/a Select-A-Video, Plaintiff-Appellee, v. RHODA WELK, Defendant-Appellant.
    Third District
    No. 3-89-0027
    Opinion filed January 18,1990.

      HEIPLE, J., concurring in part and dissenting in part.
    Burt L. Dancey, of Elliff, Keyser, Oberle & Davies, P.C., of Pekin, for appellant,
    Harry M. Williams, of Peoria, for appellee.
   JUSTICE WOMBACHER

delivered the opinion of the court:

The defendant, Rhonda Welk, appeals from a $549 judgment entered in favor of the plaintiff, Marianne Schlosser, d/b/a Select-A-Video. The record shows that the defendant was an employee of Select-A-Video until her termination on October 5, 1987. As a general policy, employees were allowed to take video tapes home for their personal use without checking the tapes out or paying a rental fee. On the day the defendant was terminated, she had placed eight video tapes in her car. At the end of the work day, the defendant was told that she was being terminated. The defendant took the tapes home, and during a conversation with her husband, placed them in a storage closet. She testified that a number of weeks later she discovered the tapes while cleaning. She also testified that the tapes were never viewed by her or her family while they were in her possession. She returned the video tapes to the plaintiff’s store on December 10, 1987.

At the conclusion of the bench trial, the court found that an implied contract existed between the parties. The court then ruled that the plaintiff was entitled to $549, which was the amount the defendant would have owed if she had rented the tapes for the two months she kept them.

On appeal, the defendant contends that the trial court erred in granting judgment for the plaintiff, because the plaintiff failed to show that the defendant had watched the video tapes. According to the defendant, the plaintiff therefore failed to show that the defendant derived any benefit from her possession of the tapes. She claims that because the plaintiff failed to show a benefit to the defendant, the plaintiff failed to prove an essential element necessary for recovery on its unjust enrichment claim.

The theory of unjust enrichment is based upon a finding of a contract implied in law. (Premier Electrical Construction Co. v. La Salle National Bank (1984), 132 Ill. App. 3d 485, 477 N.E.2d 1249.) The essential element of a contract implied in law is the receipt of benefits by one party, which it would be inequitable for him to retain without payment; it is predicated on the principle that no one should unjustly enrich himself at another’s expense. Elliot v. Villa Park Trust & Savings Bank (1978), 63 Ill. App. 3d 714, 380 N.E.2d 507.

From the record, it is clear that the defendant derived a benefit from her possession of the plaintiff’s video tapes and that therefore an implied contract existed between herself and the plaintiff. The tapes were available for her use. Under any other circumstances she would have had to buy or rent the tapes in order to view them. In sum, by showing that the defendant had possession of the tapes for her private use, the plaintiff proved that the defendant had derived a benefit.

The defendant next argues that the trial court erred in determining the amount of the plaintiff’s recovery.

The plaintiff’s recovery is limited to the reasonable amount by which the trial court finds the defendant was unjustly enriched at the expense of the plaintiff. (Nardi & Co. v. Allabastro (1974), 20 Ill. App. 3d 323, 314 N.E.2d 367.) Since the amount of damages is purely a factual issue, a court of review may not set aside the determination of damages unless it is contrary to the manifest weight of the evidence. Ellis v. Photo America Corp. (1983), 113 Ill. App. 3d 493, 447 N.E.2d 852.

On review of the record, we find the evidence insufficient to support the full amount of the instant award. The unrebutted evidence showed that the defendant and her family never watched the video tapes. There was no evidence that the defendant intentionally withheld the tapes from the plaintiff. Further, the plaintiff presented no evidence that it lost money because it was unable to rent the tapes to a paying customer. Under the circumstances of this case, we find it unreasonable to treat the tapes as having been rented on a day-by-day basis for the entire time the defendant had them. The inequity in such an award is at least as great as allowing the defendant to retain the tapes without paying any rental fee. A more reasonable approach is to hold that the defendant was enriched to the extent of one day’s rental fee for each of the tapes in her possession. The evidence showed that the six children’s tapes held by the defendant each rented for $1 a day and the two adult tapes together rented for $3 a day during the week. Therefore, the defendant was enriched to the extent of $9, and the trial court should have entered judgment for the plaintiff in that amount. Accordingly, having found the trial court’s decision contrary to the manifest weight of the evidence, we modify the judgment in favor of the plaintiff, reducing the award from $549 to $9.

The judgment of the circuit court of Peoria County is affirmed as modified.

Affirmed as modified.

BARRY, J., concurs.

PRESIDING JUSTICE HEIPLE,

concurring in part and dissenting in part:

The plaintiff, d/b/a Select-A-Video, brought suit against its former employee, the defendant, Rhonda Welk. On the same day the defendant was fired from her job, she had placed eight video tapes in her car. Notified of her termination at the end of the day, she left the store and drove home with the tapes in her car. Two months later, she returned them. The trial court found that the plaintiff was entitled to $549, which was the amount the defendant would have owed if she had rented the tapes for the two months she kept them.

Once the defendant’s employment had been terminated, she had no greater right to take tapes home than a mere customer. That is to say, at that point in time she should either have taken the tapes from her car and returned them to the store or else rented them. Instead, she took them with her without right. At that moment, she unlawfully converted the tapes to her own use. The voluntary return of the tapes two months later does not undo that unlawful conversion.

The trial court found an implied contract had arisen which entitled the store to an award of $549 for lost rentals. While the majority order affirms the principle of implied contract, it reduces the damages to $9 on the grounds that there was not evidence that the defendant viewed the tapes more than once or that the plaintiff actually suffered a loss from lost rentals. I respectfully disagree with that portion of the order.

The evidence showed a daily rental rate of $1 for the six children’s tapes that were taken plus $1.50 a day for each of the two adult tapes. Hence, the majority arrived at a reduced figure of $9, which assumes a single viewing of each of the eight tapes during the course of one day’s rental.

The error here is that the question of whether the tapes were viewed or not and how many times they were viewed is wholly irrelevant. The fact is that the tapes were unlawfully in the possession of the defendant and available for viewing for a period of two months whether viewed in fact or not. Likewise, the plaintiff was deprived of the tapes for two months and thereby the possibility of renting them for that period of time. The benefit conferred on the defendant is the possession of the tapes for two months. Whether she viewed them once, not at all, or used them to prop up a short leg on her dining room table is really quite beside the point. She took them, kept them, had them in her possession for such use as she chose to make of them and, in fact, deprived the lawful owner of their use and potential rental for a period of two months. Therein lies the benefit and the detriment.

Although the majority gives lip service to the principle that a court of review should not set aside the determination of damages unless it is contrary to the manifest weight of the evidence, it then takes itself outside the evidence to speculate on what the evidence did not show. That is to say, the number of times that the tapes were viewed and the number of times that the rental store did not rent the tapes.

It is well settled that in order to recover lost profits, it is not necessary that the amount of loss be proven "with exact certainty. (Midland Hotel Corp. v. Reuben H. Donnelley Corp. (1987), 118 Ill. 2d 306.) Rather, given the prospective nature of such profits, recovery for lost profits may be had when there are any criteria by which probable profits can be estimated with reasonable certainty. (Barnett v. Caldwell Furniture Co. (1917), 277 Ill. 286.) Basing the damage award on the rental value of the tapes for the two months the defendant kept them was reasonable. Consequently, the trial court award of $549 was not against the manifest weight of the evidence. Accordingly, I dissent with respect to the reduction in the amount of the damage award.


author: JUSTICE McCULLOUGH

text:
    SCOTT SHULTS, Plaintiff-Appellant, v. GRIFFIN-RAHN INSURANCE AGENCY, INC., et al., Defendants-Appellees.
    Third District
    No. 3—89—0220
    Opinion filed January 5,1990.
    Rehearing denied February 20,1990.

      Nile J. Williamson, of Peoria, for appellant.
    Daniel L. Johns and Thomas W. O’Neal, both of Westervelt, Johnson, Nicoll & Keller, of Peoria, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On March 21, 1989, the circuit court of Tazewell County granted the motion of defendants Griffin-Rahn Insurance Agency and Betty Rahn and dismissed with prejudice the complaint filed against them by plaintiff Scott Shults. Plaintiff appeals.

The issues are whether defendant, as an insurance broker, has a duty to advise plaintiff of the appropriate amount of uninsured motorist coverage; whether the complaint sufficiently alleges the presence of a contract sufficient to support an allegation that an insurance broker breached the contract by failing to recommend higher uninsured motorist coverage; and whether an insurance broker breaches his duty to an insured by failing to recommend higher uninsured motorist coverage. We affirm.

On October 12, 1986, plaintiff was involved in an automobile accident with an uninsured motorist while driving his 1974 Monte Carlo. The other driver was killed. Plaintiff received numerous injuries, including a broken hip. A passenger in plaintiff’s car was also injured.

At the time of the accident, plaintiff’s parents had insurance pro-. cured for them by defendants some time prior to October 25, 1985. There is no indication how long this policy has-been in effect. Plaintiff was a member of the household, and the car he was driving was listed along with two others on the policy. The policy had a liability coverage of $500,000 per accident and an uninsured motorist (UM) coverage of $30,000 per accident. This latter amount was, then, the statutorily required minimum UM coverage. See Ill. Rev. Stat. 1985, ch. 73, par. 755(a)(1); ch. 951/2, par. 7 — 203 (requiring minimum $15,000 (one)/ $30,000 (two or more)) (eff. Jan. 1,1984).

On September 23, 1987, plaintiff filed his initial complaint. A third-amended count was filed on February 3, 1989. Since count I was settled with another defendant, only counts II through VII are involved in the current controversy.

Counts II and III sounded in negligence. It is alleged defendants had a duty to advise plaintiff and his parents “of such facts and information so as to enable said persons to purchase policy (policies) of insurance in such maximum amounts and coverages as were reasonable for the person(s) to be covered by said insurance.” It is then asserted defendants breached this duty by failing to inform insured that the maximum possible UM coverage is the same as the liability coverage; by procuring said policy without confirming that the insurance company had notified insureds of this possible maximum coverage; and by procuring a policy with coverage which was not reasonable for the coverage sought.

Counts IV and V were based 6n contract theory. It was alleged that defendants entered into an oral agreement with plaintiff’s parents where they agreed to purchase, and defendants agreed to procure, an automobile insurance policy in such maximum amounts of coverage for liability and UM as was reasonable; and plaintiff, as a member of his parents’ household, was an intended third-party beneficiary. It was alleged this agreement was breached by the failure of the procured policy to contain the same UM limits as those for liability coverage.

Finally, counts VI and VII allege that defendants were fiduciaries to plaintiff arising out of the transaction with plaintiff’s parents “in view of the fact that said SCOTT SHULTS relied upon the expertise of Defendants,” and each of them received a commission in procuring the policy. It was alleged this fiduciary duty was breached by failing to cause the UM limits to be the same as the liability limits.

Defendants filed a motion to dismiss the complaint asserting numerous reasons. On March 21, 1989, the court entered an order granting this motion and dismissing counts II through VII with prejudice. Plaintiff now appeals. We affirm.

Illinois law places a particular burden on an insurance broker to exercise competence and skill when he renders the service of procuring insurance. (Economy. Fire & Casualty Co. v. Bassett (1988), 170 Ill. App. 3d 765, 771-72, 525 N.E.2d 539, 543.) A broker is bound to exercise reasonable skill and diligence in the transaction of the business entrusted to him, and will be responsible to his principal for any loss resulting from his failure to do so. (Pittway Corp. v. American Motorists Insurance Co. (1977), 56 Ill. App. 3d 338, 347, 370 N.E.2d 1271, 1277.) In this regard, the broker’s primary function as it relates to the insured is to faithfully negotiate and procure an insurance policy according to the wishes and requirements of his client. (Bassett, 170 Ill. App. 3d at 772, 525 N.E.2d at 543; Pittway, 56 Ill. App. 3d at 347, 370 N.E.2d at 1277.) The relationship between an insured and his broker, acting as the insured’s agent, is a fiduciary one even though the broker may be compensated by a third party. (Black v. Illinois Fair Plan Association (1980), 87 Ill. App. 3d 1106, 1110, 409 N.E.2d 549, 552.) A broker is not liable if he acts in good faith and with reasonable care, skill, and diligence to place the insurance in compliance with his principal’s instructions. Omni Overseas Freighting Co. v. Cardell Insurance Agency (1979), 78 Ill. App. 3d 639, 643, 397 N.E.2d 112, 115.

The conventional claim against a broker has been for the broker’s failure to procure the insurance as directed. In this case, plaintiff acknowledges the insurance was procured. However, he is concerned with the disparity in the policy between the liability coverage ($500,000) and the UM coverage ($30,000). He wishes to place a duty on a broker to advise his clients of disparities between liability and UM coverages and of the possibility of having UM coverage in excess of the statutory minimum. Heretofore, no such duty has been recognized.

The existence of a duty, that is, a legal obligation to conform one’s conduct to a certain standard for the benefit or protection of another, is a matter of law to be determined by the court. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 555, 328 N.E.2d 538, 540; Gunterman v. Rice (1987), 160 Ill. App. 3d 545, 546, 514 N.E.2d 198, 199.) The question of its existence is ultimately a question of public policy. Sostock v. Reiss (1980), 92 Ill. App. 3d 200, 206, 415 N.E. 2d 1094, 1098.

Our legislature has already recognized the important public policy in insureds being covered against uninsured motorists with enactment of section 143a of the Illinois Insurance Code, which mandates that every insurance policy provide a minimum UM coverage. (Ill. Rev. Stat. 1985, ch. 73, par. 755a.) Further, in section 143a — 2(1) (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(1)), the legislature has acknowledged the need for insureds to be informed of higher possible UM coverage. This section requires that the insurance company notify the insured upon issuance of a policy that the insured may purchase UM coverage in an amount up to the limits of the liability coverage. However, it also provides that if the insured does not avail himself of this opportunity after being initially offered the coverage, the insurance company need not make this offer on subsequent renewals. (See Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(2).) If an insurance company fails to comply with section 143a — 2 by not making this additional coverage conspicuously known to the insured, the policy of insurance will be reformed to include the higher coverage. See Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill. 2d 430, 516 N.E.2d 268.

In view of these legislative enactments, we fail to see what purpose would be served by requiring brokers to duplicate the insurance companies’ obligation to advise clients of possible higher UM coverage. We note, in the present case, the original policy was issued prior to 1985 and the complaint contains no allegations that the insureds were not advised of the possible higher coverage by the company. Once an insured has been informed of this possibility and decided against accepting it, we see little public policy in requiring the brokers to readvise the client of the missed opportunity. Accordingly, we hold an insurance broker has no such duty to advise clients of possible increased UM coverage and failure to do so does not breach the fiduciary relationship or support a claim for negligence.

Plaintiff also maintains the court erred in dismissing his breach of contract claims. Plaintiff’s complaint alleges that a contract existed between plaintiff’s parents and defendant in which the parents agreed to purchase the insurance policy defendants procured and defendants agreed “to procure an automobile policy in such maximum amounts of coverage for liability and uninsured/underinsured motorist as was reasonable.” The complaint further alleged that plaintiff was an intended third-party beneficiary to the contract and defendants’ breach by failing to procure a policy which contained the same limits for UM coverage as that for liability coverage.

The parties spend much of their time and effort arguing whether plaintiff is an intended third-party beneficiary of this contract which gives him standing to sue on the contract. However, we need not resolve this question for we find the alleged contract was too vague to be enforced.

It is basic contract law that in order for a contract to be binding and enforceable, its terms must be definite and certain. (Panko v. Advanced Appliance Service (1977), 55 Ill. App. 3d 301, 304, 371 N.E.2d 3, 5; Kraftco Corp. v. Koblus (1971), 1 Ill. App. 3d 635, 638, 274 N.E.2d 153, 155.) They must also be free from ambiguity and doubt. (Morey v. Hoffman (1957), 12 Ill. 2d 125, 130, 145 N.E.2d 644, 647.) If the material terms are not ascertainable, no enforceable contract is created. A.S. & W. Club v. Drobnick (1962), 26 Ill. 2d 521, 525, 187 N.E.2d 247, 249.

In Nowell v. Dawn-Leavitt Agency, Inc. (1980), 127 Ariz. 48, 617 P.2d 1164, the court was faced with many of the same arguments presented here. There the court found an alleged contract where the agent was to obtain “the best policy” was unenforceable as being vague. (Nowell, 127 Ariz. at 52, 617 P.2d at 1168.) The court noted the word “best” is not susceptible to precise translation in this context, and held there was no meeting of the minds.

Similarly, we find in this case an agreement to procure reasonable amounts of coverage is unenforceable. In the context of insurance coverage, a “reasonable amount” is an ambiguous phrase not subject to any definite or certain interpretation. Plaintiff wishes this court to supply this missing term by implying an obligation on insurance brokers to ensure liability coverage amounts and UM coverage amounts are equal. However, where certainty is lacking in the essential terms of the contract, the court will not supply the missing essential terms. (Panko, 55 Ill. App. 3d at 304, 371 N.E.2d at 5; O’Neil & Santa Claus, Ltd. v. Xtra Value Imports, Inc. (1977), 51 Ill. App. 3d 11, 14, 365 N.E.2d 316, 318.) Accordingly, since the material terms are unascertainable, the court’s decision to dismiss the contract counts is proper.

For the above-mentioned reasons, the order of the Tazewell County court dismissing plaintiffs complaint is affirmed.

Affirmed.

KNECHT, P.J., and SPITZ, J., concur.


author: JUSTICE STOUDER

text:
    JEANEEN A. BECKER et al., Plaintiffs-Appellees, v. R.E. COOPER CORPORATION, Defendant-Appellant (Eaton Corporation et al., Defendants-Appellees).
    Third District
    No. 3—89—0019
    Opinion filed January 18,1990.

      Tressler, Soderstrom, Maloney & Priess, of Wheaton (Francis A. Spina and Robert S. Soderstrom, of counsel), for appellant.
    Edward V. Scoby and Richard D. Trainor, both of Reed, Scoby & Trainor, Ltd., of Chicago (Charles J. Reed, Louis Hilfman, John R. Fanone, and William F. Martin, of counsel), for appellee Jeaneen A. Becker.
    Louis Hilfman, of Law Office of Louis Hilfman, Ltd., of Chicago, for appellee Donna Planner.
    John R. Fanone and Thomas M. Sheehan, both of Robert D. Kolar & Associates, Ltd., of Chicago, for appellee Eaton Corporation.
    John R. Reidy and William F. Martin, both of Ruff, Weidenaar & Reidy, Ltd., of Chicago, for appellee Kankakee Lift Truck, Inc.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises from consolidated personal injury cases brought by plaintiffs-appellees, Jeaneen Becker and Donna Planner against, inter alia, defendant-appellant, R.E. Cooper Corporation (Cooper), and defendants-appellees, Eaton Corporation (Eaton) and the Kankakee Lift Truck, Incorporated. At the conclusion of the trial, the jury rendered verdicts in favor of plaintiffs-appellees and against defendant-appellant Cooper and defendant-appellee Kankakee Lift Truck. The jury also returned a verdict in favor of defendant-appellee Eaton Corporation. Following the arguments presented at the hearing on Kankakee Lift Truck’s post-trial motion, Kankakee Lift Truck and the plaintiffs-appellees agreed to a settlement of that portion of the verdict affecting Kankakee Lift Truck. Cooper brought the instant appeal.

Cooper raises several issues on appeal. However, since we find the trial court erred in denying Cooper’s motion for a change of venue, we need only state those facts necessary to reach such decision. On March 11, 1988, this case appeared on the mandatory trial status call to determine readiness for trial on March 14. On March 14, Judge Ewert continued the case until March 16. On March 16, the case was called and assigned to Judge Michael Lyons for trial. At that point, Cooper made a motion for a change of judge pursuant to the venue provisions set forth in section 2 — 1001 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1001). Cooper predicated its petition for a change of venue on the alleged prejudice of Judge Lyons against Cooper. No other party joined Cooper in its motion for change of venue. After hearing oral argument on Cooper’s motion, Judge Lyons denied the motion, citing Gouker v. Winnebago County Board of Supervisors (1967), 37 Ill. 2d 473, 228 N.E.2d 881, and noting that he previously held a pretrial conference with the parties involved.

We glean from the record that the February 23, 1988, pretrial conference lasted IV2 hours and that the parties discussed the nature of the case, the theories of potential liability, the witnesses, and potential evidentiary problems. Judge Lyons, at that time, was not the assigned trial judge in the case. There is nothing in the record to indicate that Judge Lyons made a ruling on a substantial issue at the pretrial conference. However, following the trial, Judge Lyons, in rejecting Cooper’s post-trial motion, commented that his previous denial of Cooper’s motion for a change of venue was based upon his extensive participation in the pretrial conference.

Cooper contends that its petition for a change of venue was improperly denied, rendering all orders entered subsequent thereto void. We agree. Section 2 — 1001(a)(2) of the Code of Civil Procedure provides “[a] change of venue in any civil action may be had *** [wjhere any party or his or her attorney fears that he or she will not receive a fair trial in the court in which the action is pending, because the inhabitants of the county are or the judge is prejudiced against him or her, or his or her attorney, or the adverse party has an undue influence over the minds of the inhabitants. In any such situation the venue shall not be changed except upon application, as provided herein, or by consent of the parties.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1001(a)(2).) The right to a change of venue is absolute where a motion alleging prejudice of the judge is filed before trial or hearing and before the judge presiding in the case has made any substantial ruling. (Stoller v. Paul Revere Life Insurance Co. (1987), 163 Ill. App. 3d 438, 517 N.E.2d 5.) The salutary principle is that one should not be compelled to plead his cause before a judge who is prejudiced, whether actually or only by suspicion, and the right is mandatory if made in apt time. (American State Bank v. County of Woodford (1977), 55 Ill. App. 3d 123, 371 N.E.2d 232.) Courts liberally construe the venue provisions to permit rather than defeat a change of venue, particularly where the movant charges prejudice on the part of the judge. (Stoller v. Paul Revere Life Insurance Co. (1987), 163 Ill. App. 3d 438, 517 N.E.2d 5.) Accordingly, Illinois courts have repeatedly held that if the petition for a change of venue is in proper form and timely filed, the trial judge must grant the petition. Rosewood Corp. v. Transamerica Insurance Co. (1974), 57 Ill. 2d 247, 311 N.E.2d 673; Frede v. McDaniels (1976), 37 Ill. App. 3d 1053, 347 N.E.2d 259.

A petition for change of venue, however, must be brought at the earliest practical moment. (Wagner v. David (1966), 35 Ill. 2d 494, 221 N.E.24 248.) A petition is untimely if brought after a hearing on the merits has started or the trial court has ruled on a substantial issue in the case. (Heman v. Jefferson (1985), 136 Ill. App. 3d 745, 483 N.E.2d 537.) The rationale for the timeliness requirement is that the courts have long condemned a litigant’s attempt to seek a change of venue after he has formed an opinion, based upon the court’s adverse rulings, that the judge may be unfavorably disposed toward his cause. (In re Marriage of Kozloff (1984), 101 Ill. 2d 526, 463 N.E.2d 719.) A party should not be free to “judge shop” until he or she finds a jurist who is favorably disposed to his cause of action. In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 494 N.E.2d 541.

Cases which have found that a petition for a change of venue was properly denied because the judge had made a ruling on a substantial issue in the case have involved, for example, rulings on motions to dismiss (see City of Peoria v. Peoria Rental, Inc. (1978), 61 Ill. App. 3d 1, 377 N.E.2d 546); or where the court had already held in favor of the plaintiffs on a count of their complaint (Dethloff v. Zeigler Coal Co. (1980), 82 Ill. 2d 393, 412 N.E.2d 526); or where the court had made pretrial rulings of law (In re Estate of Roselli (1979), 70 Ill. App. 3d 116, 388 N.E.2d 87). The rulings made by the trial judge in those cases pertained to matters going to the merits of the case.

In contrast, cases which have found that a petition for a change of venue was improperly denied because no rulings on substantial issues had been made involved rulings on motions for continuances (see Little v. Newell (1973), 14 Ill. App. 3d 564, 302 N.E.2d 739); a ruling on a notice to admit facts and after a pretrial conference where no decisions were made affecting the merits of the case (Fennema v. Joyce (1972), 6 Ill. App. 3d 108, 285 N.E.2d 156); and rulings on discovery motions and a motion for severance of issues (Delta Oil Co. v. Arnold (1978), 66 Ill. App. 3d 375, 384 N.E.2d 25). The rulings in those cases involved issues not directly related to the merits of the case.

In the instant case, therefore, the question is whether Judge Lyons ruled on a substantial issue in the case before Cooper filed its petition for a change of venue. After reviewing the record, we conclude that the trial judge had not ruled on a substantial issue prior to Cooper’s petition for a change of venue. Thus, Cooper timely presented its motion.

The record shows the case was before Judge Lyons on four occasions. Judge Lyons’ involvement consisted of setting the case for a pretrial conference on November 2, 1987, and continuing the case on December 2, 1987, and December 4, 1987. In addition, Judge Lyons held the pretrial conference on February 23, 1988. After reviewing the record, we believe that Judge Lyons made no substantial rulings going to the merits of the case during those proceedings.

Appellees further assert that “something happened” at the pretrial conference which should preclude Cooper from having a change of venue. The “something” is not specified by appellees, and indeed, the appellees fail to point to any substantial ruling or expression of opinion made by Judge Lyons at the pretrial conference. The record indicates that Judge Lyons made no substantial ruling on an issue in the case at the pretrial conference nor did he express his opinion with respect to the theories presented by Cooper’s counsel. However, in rejecting Cooper’s post-trial motion, Judge Lyons cited the case In re Custody of Peterson (1984), 129 Ill. App. 3d 887, 473 N.E.2d 412, rev’d on other grounds (1986), 112 Ill. 2d 48, 491 N.E.2d 1150, as authority for his denial of Cooper’s petition for a change of venue, and Judge Lyons commented that he extensively participated in the pretrial conference. We believe, however, that Peterson and the instant case are readily distinguishable.

In Peterson, a custody battle between the father of a child and the deceased mother’s parents, the court expressed its opinion regarding the outcome of the litigation. The court opined that the child’s grandparents had “an uphill battle *** pursuant to Illinois law.” (129 Ill. App. 3d at 889.) Also, the judge at the pretrial conference in Peterson was the assigned trial judge at the time of the pretrial conference. In contrast, the record indicates that Judge Lyons was not the assigned trial judge at the time of the pretrial conference and that during the pretrial conference he made no ruling on a substantial issue in the case.

We are not prepared to hold that a pretrial conference could never render untimely a motion for a change of venue, for we recognize a potential for abuse in a rule which would allow litigants to test the disposition of a trial judge during a pretrial conference while retaining an absolute right at change of venue. (See Fennema v. Joyce (1972), 6 Ill. App. 3d 108, 285 N.E.2d 156.) In the instant case, however, we believe Cooper was not able to determine the court’s attitude on the merits of the case at the pretrial conference.

The appellees next contend that Cooper’s motion for a change of venue was motivated for purposes of delaying the trial. If it is apparent that the request for a change of venue is made only to delay or avoid trial, the denial of the petition does not constitute error. (Hoffman v. Hoffman (1968), 40 Ill. 2d 344, 239 N.E.2d 792.) In Hoffman, a divorce proceeding, the wife made numerous motions for continuances which were denied by the assignment judge. After the case was assigned for trial, the wife again asked for a continuance, which was denied. The wife then made a motion for a change of venue. When asked by the trial judge for the basis of the motion for a change of venue, the wife’s counsel stated: “We are not ready, we have asked for a continuance and we do not feel we can get a fair and impartial trial.” (Hoffman v. Hoffman (1968), 40 Ill. 2d 344, 346, 239 N.E.2d 792, 793.) The court denied the motion for a change of venue, noting that the intention of the wife to delay the trial was plainly evident. In contrast, Cooper presented its motion for a change of venue prior to its motion for summary judgment. Although the appellees characterized Cooper’s motion for a change of venue as a mere “sophisticated manipulation of procedures,” we believe, after reviewing the record, Cooper’s motion for a change of venue was not motivated for purposes of delaying the trial nor was it in anyway a manipulation of procedural rules.

The record shows that two days after the denial of Cooper’s venue petition, Kankakee Lift Truck and Eaton both filed motions for summary judgment. In addition, Cooper’s motion for a continuance was not presented until March 23, 1988. There is no evidence in the record to indicate that these motions were made for purposes of delaying the trial and neither was there any evidence in the record to indicate that Cooper’s motion for a change of venue was made for purposes of delaying the trial. We therefore conclude that Cooper’s motion for a change of venue was not motivated to delay the trial.

The appellees further contend that they were not given adequate notice of the Cooper’s motion for a change of venue. Section 2— 1001(e) of the Code of Civil Procedure provides in part that reasonable notice of a motion for a change of venue must be given to the adverse party or his or her attorney. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1001(e).) What is reasonable notice under the venue statute depends upon the circumstances of each particular case. (Anderson v. City of Wheaton (1975), 25 Ill. App. 3d 100, 323 N.E.2d 129.) Appellees assert that Cooper’s motion for a change of venue was dated March 11, 1988, and thus, Cooper should have notified appellees of its intention to bring the motion for a change of venue at that time. The case Intini v. Schwartz (1979), 78 Ill. App. 3d 575, 397 N.E.2d 84, elucidates the purpose of the reasonable notice requirement within the venue statute. There, the assigned trial judge granted Intini a two-week continuance in order to prepare an argument to Schwartz’s motion to dismiss. Two weeks later, at the hearing on the motion to dismiss, Intini petitioned for a change of venue alleging a fear of prejudice of the trial judge. The trial judge asked Intini whether notice of the petition for a change of venue had been given, and upon learning that no such notice was given, the court denied the petition. The appellate court agreed with the trial court’s decision to deny the petition for a change of venue and noted that there was no excuse or explanation for Intini’s failure to give reasonable notice.

The instant case, however, was not assigned to a judge for trial until March 16, 1988. It would have been a useless act for Cooper to notify the appellees on March 11, 1988, of its intention to petition for a change of venue before the case was assigned to a trial judge. On March 11, 1988, Cooper did not know whether Judge Lyons would be the assigned trial judge. Indeed, on March 11, 1988, the instant case could have been assigned to Judge Lyons, Judge Ewert, or Judge Lechwar. Accordingly, under these circumstances, we conclude Cooper’s petition for a change of venue did not abridge the reasonable notice requirement of the venue statute.

Appellees next propose that Cooper, by asking the trial court for a remittitur and a judgement notwithstanding the verdict in its post-trial motion, has waived its claim regarding the denial of the petition for a change of venue. Cooper contends, however, that the appellees’ failure to cite a single statute or case supporting their argument operates as a waiver of the issue. The appellees’ proposition consists of one paragraph of argument devoid of any citations to case authority or statute in support of such argument. Accordingly, we hold that participating in post-judgment motion procedure does not constitute an exception to the usual change of venue rules.

Eaton alternatively argues that if this court reverses the trial court’s ruling on Cooper’s motion for a change of venue and remands the case for a new trial, Eaton should not have to be a party at the retrial because a verdict was rendered in its favor in the first proceeding. Eaton requests that this court employ Supreme Court Rule 366 and grant a partial new trial to only those parties which the jury found liable. (See 107 Ill. 2d R. 366(a)(5).) We do not question the ability of this court to modify an order reversing the trial court’s decision as to one party, remanding the case for a new trial with respect to that party, and yet affirming a judgment as to another party. However, under the circumstances presented herein, we believe Eaton should be a party at the retrial.

In its brief, Eaton cites the case Zahn v. Muscarello (1948), 336 Ill. App. 188, 83 N.E.2d 504, as support for its proposition that it should not have to be a party to a retrial. We believe, however, that Zahn is of little help to Eaton. In Zahn, a dramshop action, the court held that one of the defendants was not a proper party in the case and that the judgment against him should be reversed. The court affirmed the verdict against the other three defendants and did not give them the opportunity for a new trial. The court reasoned that the three other defendants had a fair trial as to the facts involving liability.

In the instant case, Cooper presented a motion for a change of venue based on alleged prejudice of the trial judge. Cooper was not joined by the other parties in its motion for a change of venue. Moreover, none of the cases cited by Eaton pertain to the improper denial of a motion for a change of venue.

More importantly, in those cases wherein the court found erroneous denials of petitions for a change of venue, the language employed by each of those courts is that all orders entered subsequent to an improper denial of a change of venue petition are void. (See generally Stoller v. Paul Revere Insurance Co. (1987), 163 Ill. App. 3d 438, 517 N.E.2d 5; Frede v. McDaniels (1976), 37 Ill. App. 3d 1053, 347 N.E.2d 259; Heman v. Jefferson (1985), 136 Ill. App. 3d 745, 483 N.E.2d 537.) In the instant case, we do not know whether the alleged prejudice of Judge Lyons benefitted Eaton to the detriment of Cooper. However, we do know that under Illinois law all orders entered subsequent to the improper denial of a motion for a change of venue are void. Accordingly, the verdict in favor of Eaton is also void.

For the foregoing reasons, the order of the circuit court of Will County denying Cooper’s petition for a change of venue and all orders entered subsequent thereto are vacated and the case remanded for a new trial before another judge in the twelfth judicial circuit.

Reversed and remanded.

HEIPLE, P.J., and SCOTT, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DUANE PAGE, Defendant-Appellant.
    Third District
    No. 3-89-0067
    Opinion filed January 18,1990.

      Michelle A. Zalisko, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Edward Burmila, State’s Attorney, of Joliet (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

A jury convicted the defendant, Duane Page, of murder and armed robbery (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(3), 18 — 2(a)). Following a death sentence hearing, he was sentenced to an extended term of 85 years’ imprisonment for the murder conviction and a concurrent term of 30 years’ imprisonment for the armed robbery conviction. The defendant appeals.

The record reveals that the victim, Robert De Young, was employed as a limousine driver. On January 11, 1988, he received a message from a man requesting transportation. The man stated that his name was Larry King, his address was 216 Eastern Avenue in Joliet, and his telephone number was 727-5596. De Young left his house about 5:30 p.m. in a black limousine to pick up his passenger. About 7:12 p.m. on the same evening, De Young’s body was discovered at A.E Hill Park. He had died from two gunshot wounds to the head. The defendant’s fingerprints were found on the window between the driver and passenger compartments, and on the rear passenger door of the limousine.

Dennis Soucie, an investigator for the Will County sheriff’s department, testified that Brian Page, Arthur Newell, and the defendant were arrested at the defendant’s parents’ house in Joliet. The defendant gave his address as 216 S. Eastern in Joliet and his telephone number as 727-5596. On January 12, 1988, the defendant waived his constitutional rights and agreed to give a statement to the police. According to Soucie, the defendant stated that on January 11, 1988, he was riding in a limousine with Page, Newell, Joe Robinson, and two other black males he did not know. Eventually, one of the passengers instructed the driver to stop in A.F. Hill Park. The defendant told Investigator Soucie that after the vehicle parked, he got out to urinate and then left the area because he felt something bad was going to happen. When he got to Rosalind Avenue, he heard what he thought were several gun shots. Looking toward the park, he saw Page and Newell running toward him. Newell had a gun and told the defendant that he had shot the driver.

Michael Swearengen, an investigator for the Will County sheriff’s department, testified that he had assisted Soucie with the defendant’s interview. According to Swearengen, about 12:30 a.m. on January 13, he and the defendant reviewed the statements the defendant had previously made to Investigator Soucie. The defendant reiterated that he had gotten out of the limousine in A.F. Hill Park to urinate. He then said to Swearengen: “If I told you what happened, I would be 80 years old before I got out.”

The record reveals that Joe Robinson pled guilty to obstructing justice and aiding a fugitive for his participation in the instant crime. The record further reveals that the State agreed to reduce the murder charge against Robinson in exchange for his testimony against the defendant. At the defendant’s trial, Robinson testified that Newell, Burnett, Brian Page, “Pooky,” and the defendant came to his house on the afternoon of January 11, 1988, in a gray limousine. Later that same day, the group got into a black limousine. Burnett was using the name Larry King. As the black limousine entered A.F. Hill Park, the defendant suggested that they rob the driver. Burnett put a sawed-off shotgun to the driver’s head and ordered him out of the car. Brian Page took the defendant’s stepson and left the park. The defendant then took the shotgun from Burnett, threw the limousine driver to the ground, put his foot on the driver’s head, and ordered Burnett to take his wallet. Robinson stayed at the scene about three minutes and then met Brian Page on a street corner. Robinson then took the defendant’s stepson to Robinson’s apartment.

Sometime later, the defendant, Burnett, Newell, and Brian Page arrived at Robinson’s house. According to Robinson, at that time he noticed that the defendant and Burnett each had a handgun, but that neither of them had the shotgun. As the group was leaving Robinson’s residence, Robinson heard Burnett say to the defendant: “Duane, you shot the man twice in the head.” The defendant replied: “So what, I did.”

On cross-examination, Robinson stated that he had surrendered to the police on January 13 around 10 p.m., and had given a statement to Investigator Hernandez around 10:30 p.m. Robinson admitted that he had told Hernandez that when the limousine pulled into the park, he walked away and did not see or hear anything. He also admitted that he had told Hernandez that he did not see the defendant with a gun until the defendant came to his house and that he did not know anyone had been killed until he heard some remarks at his house.

Will County investigator Anthony Hernandez testified over defense counsel’s objection that at 10:03 p.m. on January 13, Robinson had spoken with him about the murder in question. According to Hernandez, Robinson told him that after the limousine stopped at A.F. Hill Park, he, Brian Page, and the defendant’s stepson went home. Robinson was not present when the driver was shot. About 20 minutes after Robinson left the scene, Burnett and Newell told Robinson that the defendant had shot the driver. A short time later, the defendant admitted the shooting to Robinson.

The defendant first argues on appeal that he was denied a fair trial because the trial court allowed Investigator Hernandez to testify to prior consistent statements that Joe Robinson had made on January 13. The defendant further contends that any motive on the part of Robinson to fabricate arose prior to the January 13 statement.

As a general rule, a witness may not be rehabilitated by admitting former statements consistent with his trial testimony. (People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363.) However, where it is charged that the testimony is recently fabricated or that the witness has some motive for testifying falsely, then a prior consistent statement may be admitted, but only if made before the motive to fabricate arose or before the effect of the account could be foreseen. (People v. Harris (1988), 123 Ill. 2d 113, 526 N.E.2d 335.) Furthermore, where a witness has been impeached by proof that he has made prior inconsistent statements, the State may bring out all the prior statements to qualify or explain the inconsistency and rehabilitate the witness. People v. Klinkhammer (1982), 105 Ill. App. 3d 747, 434 N.E.2d 835.

In the instant case, Robinson was impeached with a statement he made to Hernandez at 10:30 p.m. on January 13. Robinson’s January 13 statement that he had not seen the defendant with a gun was inconsistent with his direct testimony that he had seen the defendant with a shotgun at the scene of the crime. The State’s attempt to rehabilitate Robinson through the testimony of Investigator Hernandez established merely that Robinson was not present when the victim was shot. This statement was not inconsistent with Robinson’s testimony on cross-examination. The witness had been impeached by proof that he had made a prior inconsistent statement, and the State simply brought out all of the prior statements to qualify or explain the inconsistency and to rehabilitate the witness. Therefore, we find that the trial court did not err in allowing this testimony into evidence. The amount of weight to be afforded each of the statements was a question for the jury to decide.

The defendant next argues that section 5 — 5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5— 3.2(b)(2)), which provides for an extended-term sentence when the trial judge finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, is unconstitutionally vague. He relies on Maynard v. Cartwright (1988), 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853, in which the court found in a death penalty case that similar language in an Oklahoma statute was unconstitutionally vague.

We initially note that the defendant did not raise this issue in the trial court. However, we will consider the issue, since a constitutional challenge to a statute may be raised at any time. People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221.

In People v. Barnhill (1989), 188 Ill. App. 3d 299, 543 N.E.2d 1374, the court found that the application of Maynard was limited to death penalty cases. The court then found that the language of section 5—8—1(a)(1)(b) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(1)(b)), which provides that the trial court may impose a sentence of life imprisonment if it finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, was not unconstitutionally vague. See also People v. La Pointe (1982), 88 Ill. 2d 482, 431 N.E.2d 344.

The defendant contends that Barnhill is distinguishable from the instant case because here the death penalty was an option available to the trial court, whereas in Barnhill the maximum sentence the defendant could receive was life imprisonment. He cites People v. McDonald (1989), 189 Ill. App. 3d 374, 545 N.E.2d 819, as support for the proposition that even though the death sentence was not ultimately imposed in the instant case, it was nevertheless a death penalty case.

We find that Barnhill and LaPointe are controlling here. Section 5 — 5—3.2(b)(2) is not unconstitutionally vague in nondeath penalty cases. Furthermore, we find that the defendant’s reliance on McDonald is misplaced. The McDonald court held only that the ultimate fact of whether a defendant is sentenced to death does not determine whether a ease is capital for the purpose of judging the admissibility of a victim impact statement. The rationale of McDonald does not extend to a trial court’s decision of whether to impose an extended-term sentence based on the aggravating factor listed in section 5 — 5—3.2(b)(2), where the court has already determined that certain mitigating factors preclude the imposition of the death penalty.

The defendant next argues that the facts of this case do not support the trial court’s finding that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. He relies on People v. Kane (1986), 140 Ill. App. 3d 928, 489 N.E.2d 500. The State, on the other hand, relies on People v. Walker (1985), 136 Ill. App. 3d 177, 483 N.E.2d 301, in support of its response that the extended term was properly imposed.

Similar factual scenarios were presented in Kane, Walker, and La Pointe. In all three cases, the defendants acted with premeditated, cold-blooded deliberation in deciding to kill and rob a cab driver by shooting him in the head or neck at close range. In both Walker and La Pointe, the courts found that the defendants’ conduct constituted exceptionally brutal or heinous behavior indicative of wanton cruelty. The Kane court, on the other hand, found that the defendant’s conduct was not brutal or heinous within the meaning of the statute. We find that the rationale of Walker and La Pointe is controlling. In reaching this conclusion, we note that Walker was decided by this court and La Pointe was decided by the Illinois Supreme Court. Thus, we are obliged to follow those cases. The record reveals that the instant defendant cold-bloodedly shot the victim twice in the head at close range without any provocation. Accordingly, we hold that the trial court did not err in imposing an extended-term sentence.

Lastly, the defendant contends that he should have been given 388 days of credit, instead of only 86 days, for the time he spent in custody between his arrest on the instant charges and the imposition of his sentence.

The record reveals that the defendant was serving another sentence on a parole revocation violation for all but 86 of the 388 days he spent in custody. A defendant is not entitled to credit against his sentence for time spent in custody as a result of an unrelated crime or parole violation. (People v. Hope (1986), 142 Ill. App. 3d 171, 491 N.E.2d 785.) Accordingly, we find that the defendant was not entitled to any additional credit.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

WOMBACHER and SCOTT, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
      In re MARRIAGE OF BETTY J. WILSON, Petitioner-Appellant, and JAY WILSON, a/k/a Carvel J. Wilson, Respondent-Appellee.
    Second District
    No. 2—88—0860
    Opinion filed January 24,1990.
    Rehearing denied February 21,1990.

      Howard W. Broecker, of Howard W. Broecker & Associates, Ltd., of Geneva, for appellant.
    John G. Plain, of Aurora, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The petitioner, Betty J. Wilson, appeals from the orders of the circuit court of Kane County dismissing her second amended complaint for dissolution of marriage and declaration of resulting trust on the ground of res judicata and denying her motion to reconsider. We vacate the court’s judgment and remand the cause for further proceedings.

Petitioner filed a petition for dissolution of her marriage to respondent, Carvel J. Wilson, on December 1, 1981, in the circuit court of Du Page County seeking dissolution, support and maintenance, property distribution and attorney fees. The primary marital asset alleged to have been acquired subsequent to the marriage was a residence located at 1135 McDonald Avenue, Aurora, Illinois.

In January 1982, respondent quitclaimed his interest in this property to Mary Louise Kennedy, the secretary of his attorney, John Plain. Kennedy subsequently executed a quitclaim deed for the subject property back to Carvel J. Wilson in October 1984 and, pursuant to motion and order, the deed presently is being held in escrow by Kennedy’s attorney.

In May 1982, respondent commenced his own dissolution of marriage proceeding in the circuit court for the Thirteenth Judicial Circuit in Hillsborough County, Florida. Summons directed to respondent in June 1982 on the petition for dissolution in Du Page County and the return thereon were quashed and subsequent attempted service of summons on respondent in Florida was never perfected.

Petitioner filed a special and limited appearance and motion to dismiss the Florida proceeding, which was denied, and a judgment dissolving the parties’ marriage was entered in June 1982 in Hillsborough County, Florida; no property rights or rights of support and maintenance were submitted for consideration or determined in that proceeding.

In March 1983, petitioner filed an amended petition for dissolution of marriage in the circuit court of Du Page County acknowledging the Florida dissolution and the quitclaim of the property to Kennedy, noting there was no disposition of the issues of property, support and maintenance or attorney fees in the Florida proceeding, and praying for a determination of same. Petitioner’s affidavit for service by publication on respondent was filed late in March 1983. In June 1983, petitioner filed a second amended complaint for dissolution of marriage and for declaration of resulting trust. John Plain and Mary Louise Kennedy were designated therein as additional parties defendant; both subsequently were dismissed, and they are not parties to this appeal.

In July 1983, Kennedy filed a motion to dismiss petitioner’s complaint on the ground of res judicata in light of the dissolution of the parties’ marriage in Hillsborough County, Florida. In January 1984, Du Page County associate judge Blair Varnes denied Kennedy’s motion to dismiss inasmuch as he found “that no determination was made by the Florida court as to marital property or as to maintenance” and “that the theory of res adjudicata is not applicable due to the fact that the Florida hearing did not involve the same issues [now] pending.” The judge’s order transferred the cause to the Sixteenth Judicial Circuit, Kane County, Illinois, which was the situs of the property and residence of “all parties of interest.”

In January 1986, a certificate of publication was filed showing a publication made in the Geneva Republican on July. 26, August 2 and August 9, 1984. Based upon this publication, petitioner procured the entry of several orders in and by which respondent was defaulted, the real estate was awarded to petitioner, and a supplemental judgment for dissolution of marriage was entered. Respondent filed a special and limited appearance on February 5, 1986, seeking to vacate these orders. The special and limited appearance was denied, and an appeal therefrom was taken to this court. In In re Marriage of Wilson (1986), 150 Ill. App. 3d 885, this court vacated all orders entered by the trial court which were premised upon jurisdiction over respondent due to defects in petitioner’s service by publication.

Respondent was then served with summons in April 1987, and, thereafter, in June, he filed his motion to dismiss petitioner’s second amended complaint on the ground of res judicata based on the prior Florida proceedings. In May 1988, this motion to dismiss was granted, and petitioner’s motion to reconsider pursuant to section 2 — 1203 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203) was denied in August. This appeal followed.

The petitioner argues the court’s order dismissing the cause “disregards and overrules” Judge Varnes’ January 1984 order which, inter alia, transferred venue and found no determination had been made in the Florida proceedings as to the marital property or maintenance and, therefore, the theory of res judicata was inapplicable. Petitioner cites no authority in support of her contention, however, thereby waiving it. (107 Ill. 2d R. 341(e)(7).) Moreover, it is clear that a trial judge is not bound by a prior interlocutory order of another trial judge in the same case and may, after careful consideration, amend or revise orders which it considers to be erroneous. People v. DeJesus (1989), 127 Ill. 2d 486, 494; Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113.

The petitioner further contends the court’s dismissal of her second amended complaint is contrary to the law, constituted a manifest abuse of discretion and deprived her of her due-process right to a hearing concerning the issue of the parties’ property rights which precluded the trial court from fashioning a just and equitable distribution of the marital assets.

Respondent contends petitioner has waived the issues of abuse of discretion and due process because she failed to raise them below. Respondent further argues that where petitioner personally appeared by counsel in the Florida proceeding and failed to raise any issue of property rights, the judgment of dissolution of marriage is entitled to full faith and credit and completely bars any subsequent action to determine the parties’ marital property rights.

As to the waiver of due process, we agree petitioner never raised the issue of due process in the trial court, nor, in fact, does she cite any authority in support of her conclusional argument here. It is clear that objections to a motion to dismiss which are not raised in the trial court cannot be raised on appeal. (McWane Cast Iron Pipe Co. v. Aetna Casualty & Surety Co. (1954), 3 Ill. App. 2d 399, 402.) Insofar as abuse of discretion, we note that in determining the propriety of the dismissal of a complaint, this court is concerned only with questions of law presented by the pleadings (Circle Security Agency, Inc. v. Ross (1981), 99 Ill. App. 3d 1111, 1114) and dismissal will be upheld on any basis found in the record (White Fence Farm, Inc. v. Land & Lakes Co. (1981), 99 Ill. App. 3d 234, 239). Whether to grant a motion to reconsider, however, is committed to the sound discretion of the trial judge. (In re Marriage of Rosen (1984), 126 Ill. App. 3d 766; In re Marriage of Hopkins (1982), 106 Ill. App. 3d 135.) Whether a court’s discretion has been abused in denying a party’s motion to reconsider is tested by considering whether the refusal violated the moving party’s right to fundamental justice and manifested an improper application of discretion. Harris v. Harris (1977), 45 Ill. App. 3d 820, 821.

Petitioner relies primarily on Vandervoort v. Vandervoort (Fla. Dist. App. 1973), 277 So. 2d 43, in support of her contention that it was error for the court to have dismissed her second amended complaint. In Vandervoort, a judgment dissolving the parties’ marriage was entered and a special master appointed by the court to take testimony and report his determination of the assets, liabilities and the method of distribution of the assets and liabilities of a partnership in which the parties had engaged in the business of owning, breeding and racing horses. After the master filed his report, the wife moved the court to adopt it, and the husband filed exceptions thereto which were overruled and the master’s report adopted. Adoption of the master’s report was upheld upon the husband’s appeal. The wife subsequently moved the court to make specific findings as to the assets and liabilities of the partnership, apparently with the object of having additions made to the judgment which she could argue were res judicata in opposing other litigation which she alleged had been instituted elsewhere by the husband.

Over the husband’s objection, the court acceded to this request of the wife and made findings, such as the master had made, and on two matters which had not been covered by the master. On appeal by the husband, the court reversed, stating in pertinent part:

“[T]he matters of property rights of the parties which were dealt with before the master, and reported by the master and confirmed by judgment of the court, are res judicata for the parties. As to matters of that nature which were not so dealt with before the master and not adjudicated by the judgment of August 9, 1972, the parties are at liberty to litigate them in other separate proceedings.” Vandervoort, 277 So. 2d at 45.

Acknowledging that Vandervoort subsequently was disapproved in Davis v. Dieujuste (Fla. 1986), 496 So. 2d 806, 809-10, petitioner nevertheless contends Vandervoort “was the law in June of 1982 when the judgment was entered by the circuit court for the Thirteenth Judicial Circuit, Hillsborough, Florida, dissolving the marriage of the parties.”

Petitioner’s contention is patently without merit. Decisions which do not announce a new rule of law or overrule precedent are not limited to prospective application (Rothe v. Maloney Cadillac, Inc. (1988), 119 Ill. 2d 288), and it is clear from the court’s decision in Davis that it considered Vandervoort an aberration of the settled law.

In pertinent part, the Davis court stated:

“In Finston we announced that where property rights were before the court ‘a final [divorce] decree *** settles all property rights of the parties and bars any action thereafter brought by either party to determine the question of property rights.’ [Citation.] This rule was expanded in Cooper where, discussing Finston, we noted: ‘the [trial] court had before it the question of property rights ***. Here the property rights were not introduced in the litigation but they could and should have been so the [doctrine of res judicata] applies.’ [Citation.] (Emphasis added).
The rule set forth in Cooper has been generally followed in this state. [Citations.] However, the Cooper decision was completely overlooked in Vandervoort v. Vandervoort, 277 So. 2d 43 (Fla. 3d DCA 1973). In Vandervoort, contrary to this Court’s decision in Cooper, the Third District Court of Appeal held that matters involving property rights of the parties to a dissolution action which were not dealt with before the trial court or were not adjudicated in the final judgment of dissolution may be litigated in ’other separate proceedings.’ ’’¿Davis, 496 So. 2d at 807-08.

In deciding the case before it, the Davis court noted the concept of “divisible divorce” adopted in Pawley v. Pawley (Fla. 1950), 46 So. 2d 464, which recognized two separable aspects of a dissolution proceeding: that which relates to the marital res and that which relates to the property rights and obligations of the parties. “While constructive service is sufficient for an adjudication of the former, personal jurisdiction is generally required for a determination of the latter.” (Davis, 496 So. 2d at 808.) Thus, the Davis court concluded, if the trial court in the cause before it had acquired jurisdiction to adjudicate the respective rights and obligations of the parties, the final judgment of dissolution settled all such matters as between the spouses evolving during the marriage, whether or not those matters were introduced in the dissolution proceeding, and the dissolution judgment acts as a bar to any action thereafter to determine any such rights and obligations. The court added that: “Any language to the contrary in Vandervoort is disapproved.” (Davis, 496 So. 2d at 810.) The cause in Davis was remanded for a determination of whether the trial court in the dissolution proceeding had jurisdiction to dispose of the real property at issue.

In the case at bar, petitioner points to the fact the original notice of action filed by the respondent was entitled “Notice of Action — No Property” and was addressed to her at 1135 McDonald Road, Aurora, Illinois, attempting to suggest, apparently, that the Florida trial court which granted the dissolution did not have jurisdiction to dispose of the real property at issue. The record shows, however, that petitioner filed a special and limited appearance and motion to dismiss the Florida proceedings. That motion alleged in part that she previously filed a petition for dissolution of marriage in Du Page County, Illinois, and that a determination as to the disposition of the parties’ marital home would have to be made by that court. (The record shows the respondent, Carvel J. Wilson, had not been served with process in the Du Page dissolution proceeding at the time the Florida court considered the petitioner’s motion to dismiss and, in fact, respondent was not effectively served with summons until April 1987.)

Petitioner’s filing of a motion to dismiss the Florida dissolution proceeding amounted to a general appearance inasmuch as any action taken by a litigant which recognizes the case as being in court will amount to a general entry of appearance unless such action was for the sole purpose of objecting to jurisdiction over the person. (In re Marriage of Lenhardt (1988), 176 Ill. App. 3d 429.) Personal jurisdiction is conferred by service of summons or by general appearance, and it is derived from actions of the person sought to be bound. (Meldoc Properties v. Prezell (1987), 158 Ill. App. 3d 212.) Consequently, the Florida court had personal jurisdiction of both the petitioner and the respondent and, per Davis, that court had jurisdiction to adjudicate the respective rights and obligations of the parties notwithstanding the fact that petitioner, through her attorney, failed to pursue the matter of the marital residence.

Petitioner argues further, however, that res judicata does not bar the instant cause since “it was stipulated to by and between the parties in the Florida proceedings that the only issue that would be determined by the trial court was the dissolution of marriage and not any issues relating to the rights of the parties in the Kane County, Illinois, real estate.” (Emphasis in original.)

The principle of res judicata ordinarily would bar litigation of the petitioner’s property claim here inasmuch as that principle applies not only to matters which were actually litigated but also those which could have been litigated. (Thorleif Larsen & Son, Inc. v. PPG Industries, Inc. (1988), 177 Ill. App. 3d 656.) However, “[i]t is further the rule that a judgment or decree is not a bar to the further prosecution of claims, or the interposition of defenses, where the same, although asserted or set up in the prior suit, were withdrawn from the consideration of the court or for any reason, such as by agreement of the parties, were not submitted for decision.” (Emphasis added.) Karas v. Snell (1957), 11 Ill. 2d 233, 247; see also Case Prestressing Corp. v. Chicago College of Osteopathic Medicine (1983), 118 Ill. App. 3d 782, 786.

As respondent argues, no “stipulation” as such appears in the record. However, petitioner’s motion to reconsider was supported by the affidavit of counsel who represented her in the Florida proceedings. Therein, counsel stated that when he moved to dismiss the Florida proceeding on the basis of the pending Du Page dissolution petition — which included the property issue — counsel for respondent represented to the court that respondent was seeking only a dissolution of the parties’ marriage and that the appropriate court in Illinois could determine the entitlement to an ownership of Illinois property at some other later time. Respondent’s reply to this motion to reconsider was supported by the affidavit of counsel who represented respondent in the Florida proceedings. In pertinent part, counsel stated therein that he argued to the Florida court that the only relief he was seeking on behalf of his client was the dissolution of the marriage; that he knew nothing of any marital property; and that opposing counsel could file whatever responsive pleadings he chose. Counsel further stated that, to the best of his memory, he did not recall telling petitioner’s counsel that he should litigate any issue about land in Illinois in the State of Illinois.

In denying petitioner’s motion to reconsider, the court here found that where the Florida court had personal jurisdiction of the parties who were represented by counsel, the property matter could have and should have been litigated. The court acknowledged the affidavits of counsel showed the parties “weren’t seeking any other relief, other than to dissolve the marriage” in the Florida proceeding, but it stated: “This court believes that those attorneys made a mistake.” The court expressly stated: “[T]hat as far as [petitioner] is concerned, she is being deprived of justice and equity. But the law speaks. And I must follow the law. And I believe the law under res judicata says should have or could have been litigated.”

Based on these comments, it is clear the court concluded that only the dissolution matter was submitted to the Florida court and that it was a “mistake” on the part of the parties’ attorneys that the property issue was not submitted as well.

As noted above, the property issue could properly, rather than mistakenly, have been removed from the Florida court’s consideration by agreement of the parties and, under those circumstances, the principle of res judicata would not bar litigation of the property issue at a later time or in a different forum. Inasmuch as the issue of whether the attorneys had such an agreement is a question of fact and counsel’s affidavits conflict on that point, the judgment of the circuit court of Kane County denying petitioner’s motion to reconsider the dismissal of her second amended complaint is vacated, and the cause is remanded for further proceedings consistent with this opinion.

Judgment vacated; cause remanded.

INGLIS and McLAREN, JJ., concur.