source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTWONE J. WILKES, Defendant-Appellant.
    Fifth District
    No. 5—91—0205
    Opinion filed August 12, 1992.

      Daniel M. Kirwan and Stanley P. Stasiulis, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Gary Duncan, State’s Attorney, of Mt. Vernon (Norbert J. Goetten, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The defendant, Antwone Wilkes, was charged with unlawful delivery of a controlled substance. He entered a negotiated plea of guilty, under which he was to pay all court costs, a fine of $500, and a drug-traffic-prevention fine of $1,000 by September 4, 1990, and to appear on that day to begin serving a three-year term of imprisonment. The plea agreement also provided that if defendant failed to appear or to pay by that date, the court would be free to treat the matter as an open plea. Defendant did not complete payment by the deadline and was sentenced to seven years’ imprisonment. He appeals. We vacate and remand.

On May 26, 1989, the defendant was charged with unlawful delivery of more than 10 but less than 30 grams of cocaine. Defendant was represented by private counsel, Larry Gibson, until June 13, 1990, at which time Gibson withdrew because defendant failed to pay him. On July 5, 1990, defendant alleged indigence and requested appointed counsel. The court ordered defendant to give the clerk jewelry defendant was then wearing as reimbursement to the county for not less than $300 for appointed counsel. The jewelry went directly to appointed counsel, but the court informed defendant that he could redeem it by paying $300 in cash. On July 6, 1990, Gibson was appointed to represent defendant.

On August 27, 1990, defendant entered into a negotiated plea which provided that the Class 1 felony would be reduced to Class 2 and defendant would be sentenced to three years’ imprisonment, a fine of $500, and a drug-traffic-prevention fine of $1,000, plus court costs, with payment and mittimus to be stayed until September 4, 1990, at 10 a.m.

After conducting a hearing in chambers, off the record, the court agreed to accept the plea. When tendered a sentencing order from the State’s Attorney, the judge modified it to reflect that the negotiation would be void and the plea of guilty would be treated as an open plea if defendant did not pay the balance due by September 4, 1990. Defendant was informed of this modification in open court.

On September 4, 1990, the defendant surrendered himself, but he did not make payment. The court then reset the matter for resenten-cing. Two days later, on September 6, 1990, defense counsel requested leave for late payment and imposition of the negotiated sentence. The court took the request under advisement and confirmed the sentencing hearing was set for September 24,1990.

At the September 24 hearing Gibson stated that he had erroneously informed defendant that he would owe approximately $700 after the $1,000 bond had been applied to fines and costs. Gibson stated that both he and the State had determined that same amount. He further believed that that amount had been discussed in chambers with the court.

Gibson also stated that he had been unaware of additional costs for defendant’s extradition of around $700, and that no one had ever stated in open court the precise amount owed by defendant. When Gibson did inform defendant that the actual amount due was almost double the amount originally discussed, defendant had only two business days within which to obtain the additional $700. Though the defendant had the full amount available on September 5, 1990, and the State’s Attorney had no objection to the additional $700 being paid late, Judge Irish could not be reached on that date.

The State’s Attorney conceded that she had not considered the extradition costs and stated she had no objection to late payment, deferring to the court’s discretion on the motion to reconsider.

The court denied late payment, stating that the defendant knew he had been extradited and that the court was entitled to assume that the parties were aware of the scope of their obligations. The court stated:

“[T]his is not a question of the defendant being penalized from the Court’s standpoint. It’s a question of there having been an agreement which the State carried out on their side and the defendant did not carry out on his.”

The court then resentenced the defendant to seven years’ imprisonment, a street-value fine of $1,000 and court costs.

Defendant contends that because the trial court never determined if defendant’s failure to pay was willful, this court should vacate the sentence and remand for a new sentencing hearing, order specific performance of defendant’s original negotiated plea, or remand this cause for a hearing to determine the willfulness of defendant’s failure to pay. The State counters that the defendant has waived his right to raise this issue and that, in any case, the “willfulness” of defendant’s failure to pay is irrelevant.

The Illinois Constitution states:

“No person shall be imprisoned for failure to pay a fíne in a criminal case unless he has been afforded adequate time to make payment, in installments if necessary, and has willfully failed to make payment.” (Ill. Const. 1970, art. I, §14.)

Along that same line, Illinois statutes provide:

“No defendant shall be committed to the Department of Corrections for the recovery of a fine or costs” (Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-6(d));

and:

“Probation, conditional discharge, periodic imprisonment and supervision shall not be revoked for failure to comply with conditions of a sentence or supervision, which imposes financial obligations upon the offender unless such failure is due to his willful refusal to pay.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(d).

The State claims that the defendant has waived his right to contend that the trial court erred in failing to consider whether his failure to pay was willful. Towards this end the State cites People v. Tharp (1991), 217 Ill. App. 3d 429, 577 N.E.2d 492. Tharp, however, is easily distinguishable from the instant case. In Tharp the defendant motioned the trial court to reconsider the amount of restitution to be paid. The appellate court said that Tharp, by stating his willingness to pay restitution, and by urging the trial court to sentence him to probation and to order him to pay restitution up to the amount of $13,463.14, had waived any complaint about his ability to pay restitution. In the instant case, however, no specified amount due in costs and fines was ever stated, nor does it seem that either party or the court had correctly determined the exact sum. It should also be noted that in Tharp the trial court did reduce defendant’s monthly payments and extend the total time in which restitution was to be made. The court, in Tharp, merely refused to reduce the total amount of restitution due. In the instant case, defendant asked only for a small delay in payment which the trial court here refused to grant, unlike the trial court in Tharp. We find Tharp inapposite and, therefore, conclude there has been no waiver on the part of defendant.

In the alternative, the State argues that defendant’s “willfulness,” as regards his failure to pay, is irrelevant in that the trial court merely treated the plea agreement as open due to defendant’s failure to fully comply with the agreement. Thus, the court did not revoke the defendant’s sentence under section 5 — 6—4(d) of the Unified Code of Corrections, since it had never been entered but was, in fact, void.

Defendant, to the contrary, suggests that the trial court in effect sentenced him to an additional four years’ imprisonment due to his failure to pay his fines and court costs by the prescribed deadline. Such a sentence, defendant argues, should not have been imposed absent a determination of defendant’s “willfulness” in his failure to pay, according to section 5 — 6—4(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(d)).

We find this argument convincing. The terms of the plea agreement were all but finalized, and the defendant was ready to tender his fine and court costs, when the trial court decided that defendant had failed to comply and voided the agreement. Such an action was analogous to a revocation for failure to comply with conditions of a sentence or supervision, which imposes financial obligations upon the offender. Absent a determination that defendant’s failure was due to a willful refusal to pay, the revocation should not have occurred. People v. Boucher (1989), 179 Ill. App. 3d 832, 535 N.E.2d 56; Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(d).

The State, assuming arguendo that a determination of “willfulness” is applicable, argues that the trial court did comply with this requirement. The State points out numerous examples in the record which reflect on defendant’s indigency and his ability or inability to pay the fines and costs due. The State claims that the court was well aware of defendant’s financial situation and took the element of “willfulness” into consideration when reviewing the defendant’s failure to pay. Unfortunately this assertion is not supported by the record.

While the record does seem to indicate that defendant was indigent and that the trial court was almost certainly aware of this, there is no evidence whatsoever which suggests that the trial court ever acknowledged that the defendant’s “willfulness” in his failure to pay was even an issue to be considered. The court regarded the situation as merely “a question of there having been an agreement which the State carried out on their side and the defendant did not carry out on his.” No mention of “willfulness” was ever made.

A court of review will not disturb a sentence imposed by a trial court unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose. (People v. Carlson (1980), 79 Ill. 2d 564, 587, 404 N.E.2d 233, 243.) If justice was originálly to be served by the plea agreement, how is it better served by the addition of four years’ imprisonment simply because of defendant’s failure to make payment by one day? To paraphrase Cicero, extreme justice is often injustice. This is just such a case. We find that the sentence imposed by the trial court constituted a great departure from the fundamental law and its spirit and purpose. It also failed to consider the defendant’s “willfulness” in his refusal to pay as required by section 5 — 6—4(d) of the Unified Code of Corrections. We, therefore, reverse and remand for a determination of defendant’s willfulness as regards his failure to pay and for a resentencing in accordance with the dictates of this opinion.

Vacated and remanded.

GOLDENHERSH, P.J., and RARICK, J., concur.


author: JUSTICE HENRY LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LONNIE JOHNSON, Defendant-Appellant.
    Fifth District
    No. 5—91—0118
    Opinion filed August 13, 1992.

      Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Rebecca Sanders, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HENRY LEWIS

delivered the opinion of the court;

Defendant, Lonnie Johnson, was indicted in St. Clair County for the attempted murder of Michael Hodges, armed violence and aggravated battery. After a bench trial, the defendant was convicted of all charges. The circuit court imposed 13-year concurrent sentences of imprisonment on all three convictions.

On appeal, this court affirmed the defendant’s conviction for attempted murder but vacated the convictions for armed violence and aggravated battery. (People v. Johnson (1990), 198 Ill. App. 3d 1112, 584 N.E.2d 1083 (unpublished order pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23)).) On March 29, 1989, the defendant filed a pro se post-conviction petition. On March 1, 1990, the defendant filed another pro se post-conviction petition. Thereafter, the circuit court ordered that P.K. Johnson, Jr., be appointed to represent the defendant. Defendant’s counsel then filed an amended petition for post-conviction relief. On November 27, 1990, the State moved to dismiss the petition and all amendments thereto. On that same date, defense counsel filed a Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)) certificate of compliance. At the defendant’s evidentiary hearing, the circuit court determined that it would proceed on the amended petition. After the ev-identiary hearing, the petition was denied, and direct appeal to this court followed.

The relevant facts can be succinctly stated. Michael Hodges was driven by Dwayne Williams (and possibly another unidentified person) to a trailer which was occupied by several individuals, in order to purchase cocaine. While there, Hodges became engaged in an argument with the occupants and shots were fired at Hodges. One of the shooters was the defendant. Hodges was shot in the back, and a bullet lodged in Hodges’ spine, causing paralysis. Another bullet passed through Hodges’ foot.

The defendant contends that his post-conviction counsel did not adequately present his contentions of error as required by Supreme Court Rule 651(c). He asserts that post-conviction counsel erred because he did not append to the defendant’s post-conviction petition an affidavit from Williams or the other unidentified person whom trial counsel could not locate, in order to show that trial counsel was ineffective for not interviewing or subpoenaing Williams (or the other unidentified person). In the defendant’s post-conviction hearing, he speculated that Williams’ testimony may have conflicted with the victim’s testimony that he had no gun, did not turn around and did not make any move toward the defendant. Although the defendant couches his claim in terms of an issue of strict compliance with Supreme Court Rule 651(c), apparently the defendant is alleging that post-conviction counsel was incompetent for his failure to attach an affidavits) from the witness(es) whom trial counsel was not able to locate.

In a post-conviction proceeding, the burden of proof is on the petitioner to establish a substantial deprivation of rights under the United States Constitution or the Constitution of Illinois before he is entitled to any relief. (People v. Del Vecchio (1989), 129 Ill. 2d 265, 274, 544 N.E.2d 312, 316.) The petitioner is not entitled to an eviden-tiary hearing on a post-conviction petition unless the allegations contained therein are supported by the trial record and accompanying affidavits and the defendant makes a substantial showing that his rights have been violated. People v. Spreitzer (1991), 143 Ill. 2d 210, 218, 572 N.E.2d 931, 934.

In the instant case, the defendant received an evidentiary hearing. At that hearing, the circuit court determined that trial counsel was not ineffective for the following reasons:

“(a) This issue was addressed in the post-trial motion and may be considered subject to the State’s motion to dismiss.
(b) Further, a review of the trial transcript reveals that the defendant has not demonstrated that his trial counsel’s performance fell below an objective standard of reasonableness or that there was a reasonable probability that, but for counsel’s purported errors or omissions, the result would have been different.”

In fact, a review of the record demonstrates that trial counsel asked his client where he might be able to locate Williams; however, the defendant “had no idea.” Further, trial counsel testified that he had looked in the East St. Louis, Washington Park and Centreville telephone books for Williams because he had no address or telephone number for him. Additionally, there was no indication in the police reports that Williams even had an address. Thus, trial counsel had no place from which to subpoena Williams.

In People v. Albanese (1984), 104 Ill. 2d 504, 527, 473 N.E.2d 1246, 1256, the Illinois Supreme Court determined that if a reviewing court may dispose of the defendant’s claim of ineffective assistance on the ground that the defendant failed to demonstrate sufficient prejudice, it may do so without determining whether counsel’s performance was sufficient. Because the defendant in the instant case has failed to show that he suffered prejudice through post-conviction counsel’s failure to append affidavits to the defendant’s petition, the defendant’s claim fails.

Supreme Court Rule 651(c) sets forth the responsibilities of appointed counsel representing an indigent inmate under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.). According to Supreme Court Rule 651(c):

“The record filed in [the trial] court shall contain a showing, which may be made by the certificate of petitioner’s attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” 134 Ill. 2d R. 651(c).

Here, the record shows that defendant’s counsel complied with Supreme Court Rule 651(c). On November 27, 1990, petitioner’s post-conviction counsel filed a certificate averring that he had personally consulted with the defendant on October 30, 1990, to ascertain his contentions of deprivation of his constitutional rights. The certificate of compliance also stated that post-conviction counsel had examined the entire record of proceedings at trial and that he had made all of the necessary amendments to the petition filed pro se that were necessary for an adequate presentation of the defendant’s contentions. The presumption is that post-conviction counsel did what he attested in the certificate, and that presumption remains. Further, it is clear from the defendant’s evidentiary hearing that trial counsel attempted to locate the missing witness and was not successful. Thus, the record shows that petitioner’s counsel complied, insofar as compliance was possible, with Rule 651(c). (See People v. Owens (1990), 139 Ill. 2d 351, 367, 564 N.E.2d 1184, 1191.) The record demonstrates that counsel consulted with petitioner and filed an amended post-conviction petition which raised numerous allegations of trial error. It would have been impossible for counsel to raise many of these errors without having examined the record of proceedings at trial. (Owens, 139 Ill. 2d at 368, 564 N.E.2d at 1191.) A mere failure to amend the pro se petition is not enough to establish inadequacy of representation in the absence of a showing that the petition could have been successfully amended. People v. Burns (1972), 4 Ill. App. 3d 893, 895, 282 N.E.2d 185, 186; People v. Wollenberg (1973), 9 Ill. App. 3d 1028, 1030, 293 N.E.2d 728, 730.

Trial counsel, in the case at bar, could not find the missing witness. The defendant asserts that post-conviction counsel knew that in order for the defendant’s petition to succeed, he had to attach an affidavit or present Williams’ testimony. In the absence of any evidence, or even any assertion, that Williams was available, this court refuses to engage in speculation about whether post-conviction counsel did not subpoena Williams because he did not know and could not ascertain his whereabouts after reasonable efforts, or that post-conviction counsel did not try to interview or contact Williams or ascertain what his testimony would have been. Further, a reviewing court cannot presume the existence of error which is not affirmatively shown of record. People v. Boshears (1992), 228 Ill. App. 3d 677, 681, 592 N.E.2d 1187, 1190-91.

The record, in fact, indicates that trial counsel testified that neither the defendant, the victim, nor the police knew where to locate Williams. Further, the record indicates that trial counsel attempted to locate the witness. The defendant speculates that Williams’ testimony-may have conflicted with the victim’s testimony that he had no gun, did not turn around and did not make any move toward the defendant; however, the defendant offered no evidence that Williams could be found or that Williams was available to testify. Hence, these are insufficient allegations to show that defendant’s post-conviction counsel was incompetent because he did not comply with Rule 651(c).

As such, we conclude that defendant’s counsel substantially complied with Rule 651(c) and, thus, was not incompetent for failing to append a missing witness’ affidavit.

Affirmed.

GOLDENHERSH, P.J., and HARRISON, J., concur.


text:
    LARRY KOEHLER et al., Plaintiffs-Appellants, v. THE FIRST NATIONAL BANK OF LOUISVILLE, Defendant-Appellee (Bank of West Frankfort et al., Defendants).
    Fifth District
    No. 5—90—0817
    Opinion filed August 14, 1992.

      Gordon Lambert, of Harris & Lambert, of Marion, for appellants.
    Brian D. Lewis, of Mitchell & Armstrong, Ltd., of Marion, for appellee.
   JUSTICE HENRY LEWIS

delivered the opinion of the court:

The plaintiffs, Larry Koehler and Carol Koehler, who are husband and wife, brought suit in six counts against three defendants, the First National Bank of Louisville, the Bank of West Frankfort, and the Bank of Egypt. In this appeal by the plaintiffs, brought pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), we are concerned with only count V of the second amendment to plaintiffs’ complaint, which is directed against a single defendant, the First National Bank of Louisville (hereafter referred to as the Bank). In this count the plaintiffs sought both compensatory and punitive damages, alleging that, by the Bank’s failure and refusal to close a certain loan with the plaintiffs, the Bank breached its “implied duty of good faith and fair dealing” owed to the plaintiffs. The trial court dismissed count V for failure to state a cause of action “recognized by the law of this state.” This interlocutory appeal followed in which the plaintiffs raise two issues for review: whether count V states a cause of action for the breach of the duty of good faith and fair dealing arising out of the contractual relationship and whether count V appropriately pleads allegations for punitive damages.

A motion to dismiss a complaint admits as true all properly pleaded facts and should not be granted unless it clearly appears from the pleadings that the plaintiff would not be entitled to recover under any set of facts which could be proved. (Powers v. Delnor Hospital (1985), 135 Ill. App. 3d 317, 481 N.E.2d 968.) In count V the plaintiffs allege that in January or February of 1987 they responded to a newspaper advertisement for fixed-rate mortgages to refinance homes at 8.125% interest for 15 or 30 years. Plaintiffs allege that they applied for such a mortgage and that the Bank of Egypt or the Bank of West Frankfort, both of which are owned by the Banterra Corporation, called the Bank and obtained a verbal commitment that the Bank would guarantee that $50,000 would be set aside for a period of 45 days from February 27, 1987, through April 13, 1987, for plaintiffs to borrow at the rate of 8.25%. The information was conveyed to the plaintiffs, who agreed to these terms on the same day. Plaintiffs allege that thereafter a commitment memo containing the terms of the agreement between the parties was prepared by the Bank of Egypt and submitted to the Bank. Thereafter, the plaintiffs submitted a signed loan application to refinance the existing loan on their residence on which they were paying interest at the rate of 11.5%. At the time they submitted the loan application they paid a “lock-in” fee of $500.

Plaintiffs allege that the Bank approved their loan application but later failed to close the loan at interest of 8.25%, as stated in the commitment memo, and have refused to conclude the loan at that rate. The Bank gave plaintiffs two reasons for its failure to close the loan at that rate of interest: (1) the date of employment given by Carol Koehler on the application was August 15, 1987, although the form was dated March 3, 1987, and (2) a credit report showed a balance owed to a savings and loan institution for a loan in addition to the one plaintiffs sought to refinance. The plaintiffs allege that during the first two weeks of April 1987, interest rates increased significantly over 8.25% and that “defendant’s failure and refusal to conclude and close the loan with plaintiffs at 8.25 per cent as above stated was done by defendant with such knowledge and for the purpose of coercing plaintiffs to accept a rate of interest higher than 8.25 per cent from defendant.” Plaintiffs allege that the Bank was advised that the error concerning the verification of Carol Koehler’s employment was a typographical one, the correct date being August 15, 1986, and that the credit bureau report meant to show that a prior mortgage in the amount of $18,000 had been paid with no balance due. The plaintiffs allege further that the failure and refusal of the Bank to close the loan of $50,000 for 15 years at a rate of interest of 8.25% by relying on the two reasons set forth above and with knowledge of the significant increase in interest rates during the first two weeks of April 1987, together with its purpose of coercing plaintiffs to accept a higher rate of interest, constituted a breach of the Bank’s implied duty of good faith and fair dealing owed to the plaintiffs. As a proximate result, the plaintiffs allege, they were required to continue making mortgage payments at an interest rate of 11.5% and have suffered as compensatory damages the difference since April 13, 1987, between the amount of interest paid at the rate of 11.5% and the amount of interest paid at a rate of 8.25%. Plaintiffs seek punitive damages in the sum of $10,000, alleging that the Bank’s action “was done with malice and/or with an utter indifference to or a conscious disregard for the safety of the plaintiffs’ property, and for the purpose of making additional profits from plaintiffs.”

In granting the Bank’s motion to dismiss count V in its order of June 26, 1990, the trial court expressed the opinion that this count, “which purports to sound in tort and seeks punitive damages, fails to state a cause of action recognized by the law of this state. This is a contract case.” The trial court subsequently denied the plaintiffs’ motion for rehearing concerning its granting of the motion to dismiss count V and, in an order filed November 21, 1990, found that there was no just reason for delaying enforcement or appeal of its order of June, 26, 1990.

We note that in an order entered on October 27, 1989, the trial court granted the motion of the Bank for summary judgment with respect to count II and granted the motion of all three defendants to dismiss count IV. Thereafter, in its order of November 20, 1990, the trial court found that there was no just reason for delaying enforcement or appeal of its order of October 27, 1989. However, as we have already indicated, in this interlocutory appeal we are asked to consider only count V. Trial on the remaining counts, including count I sounding in contract against the Bank, was continued by the trial court pending the outcome of plaintiffs’ interlocutory appeal.

Concerning the first issue presented for review, plaintiffs contend that count V states sufficiently a cause of action for the breach of the duty of good faith and fair dealing. Maintaining that “it is firmly established that a contractual relationship may give rise to both a contractual cause of action and a tort cause of action and that a breach of the duty of good faith and fair dealing is both a contract action and a tort action,” plaintiffs assert that “[t]his is a separate tort that flows from the set of facts originating in a contractual relationship” and that “this is the type of situation for which the tortious breach of contract theory was designed.” Plaintiffs rely principally upon the line of insurance-related cases that originated with Ledingham v. Blue Cross Plan for Hospital Care of Hospital Service Corp. (1975), 29 Ill. App. 3d 339, 330 N.E.2d 540, rev’d on other grounds (1976), 64 Ill. 2d 338, 356 N.E.2d 75, and includes Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App. 3d 631, 407 N.E.2d 156, Lynch v. Mid-America Fire & Marine Insurance Co. (1981), 94 Ill. App. 3d 21, 418 N.E.2d 421, Kohlmeier v. Shelter Insurance Co. (1988), 170 Ill. App. 3d 643, 525 N.E.2d 94, and Raprager v. Allstate Insurance Co. (1989), 183 Ill. App. 3d 847, 539 N.E.2d 787.

It is true that cases have held that every contract contains an implied covenant of good faith and fair dealing. (Carlson v. Carlson (1986), 147 Ill. App. 3d 610, 498 N.E.2d 708.) The same conduct may give rise in some cases to both tort and contract theories of recovery. (Martin v. Federal Life Insurance Co. (1982), 109 Ill. App. 3d 596, 440 N.E.2d 998.) In Chicago College of Osteopathic Medicine v. George A. Fuller Co. (7th Cir. 1983), 719 F.2d 1335, the court observed that no Illinois case or statute supports a cause of action for bad-faith dealing outside the areas of insurance and employment law. In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, the supreme court first recognized the tort action of retaliatory discharge in an at-will employment situation based upon public policy. (Chicago College of Osteopathic Medicine, 719 E2d 1335.) In the area of insurance law, the rationale for recognizing a cause of action for bad-faith dealing is grounded, in large part, on the special relationship between the insurer and the insured. (See Buehler Ltd. v. Home Life Insurance Co. (N.D. Ill. 1989), 722 F. Supp. 1554.) Care must be taken to prevent the transmutation of every breach of contract into an independent tort action through the bootstrapping of the general contract principle of good faith and fair dealing. Martin, 109 Ill. App. 3d 596, 440 N.E.2d 998.

The policy considerations undergirding Kelsay and the insurance-related cases upon which plaintiffs rely are plainly inapplicable to the instant case. In the absence of compelling policy considerations, we decline to extend the cause of action for bad-faith dealing to this area of the law. The trial court properly concluded that count V fails to state a cause of action cognizable in Illinois and rightly described the plaintiffs’ cause as a contract action.

In light of our disposition of this issue, we need not consider the remaining issue concerning punitive damages sought in count V. As we have said, in that count plaintiffs alleged that the Bank had engaged in tortious conduct for which they sought both compensatory and punitive damages. We note that, generally, punitive damages are not available in actions for breach of contract because a party suing for breach of contract is entitled only to the benefit of his bargain and the purpose of awarding damages is to place the injured party in the position he would have been had it not been for the breach (Bank of Illinois v. Bill’s King City Stationery, Inc. (1990), 198 Ill. App. 3d 434, 555 N.E.2d 1133). An exception to this rule exists where the breach constitutes an independent tort for which punitive damages are recoverable. (Bank of Illinois, 198 Ill. App. 3d 434, 555 N.E.2d 1133.) However, in the instant case the breach of contract alleged does not constitute an independent tort. Hence, no punitive damages are recoverable.

Affirmed.

HARRISON and WELCH, JJ., concur.


author: JUSTICE RARICK JUSTICE WELCH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES HARRE, Defendant-Appellant.
    Fifth District
    No. 5—90—0447
    Opinion filed August 18, 1992.

      Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Don Sheafor, State’s Attorney, of Vandalia (Kenneth R. Boyle, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Charles Harre, was convicted by a jury of armed violence in May of 1990 and was sentenced to 9V2 years’ imprisonment. Defendant was also ordered to pay a street value fine of $49,533.50 in connection with his earlier plea of guilty to unlawful possession of cannabis with intent to deliver (Ill. Rev. Stat. 1989, ch. 56x/2, par. 705(e)), the predicate offense for the armed violence conviction, as well as being sentenced to an additional five years’ imprisonment. On appeal, defendant contends that: (1) he was not proved guilty of armed violence beyond a reasonable doubt; (2) the cannabis conviction must be vacated as a lesser-included offense of armed violence; (3) he must receive $1,410 credit toward his fine for 282 days spent in pretrial incarceration pursuant to section 110 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 14); (4) the court improperly calculated the street value fine; and (5) the court abused its discretion in imposing sentences of imprisonment.

At trial, evidence was presented that police officers were notified of cannabis processing taking place in an abandoned house in rural Fayette County. After securing a search warrant, the house was searched on the evening of September 12, 1989. Twenty-three thousand four hundred and fifty-seven grams of cannabis were seized. Two individuals who were in the house at the time of the search, Allen and Diana Radcliff, were also arrested. Allen Radcliff informed police that defendant and his cousin, Reggie Harre, were to return later that night. At approximately 1:25 a.m. on September 13, 1989, two State Troopers observed, from approximately 150 feet away, an automobile rapidly travelling down the gravel road toward the house. The officers heard the car stop at the gate across the lane to the house, the car door open and close, the gate open and the car drive on. The gate was located approximately 250 feet from the public road. When the car pulled up to the house and parked, defendant was sitting on the hood of the automobile between the right wheel well and the windshield. Reggie Harre was the driver. Defendant was arrested as he stepped off the hood of the car. Reggie was arrested as he sat behind the steering wheel.

The owner of the car was Reggie Harre. On the bench seat, beside Reggie Harre’s right leg, was a .22 caliber pistol. A .22 caliber rifle was also found on the bench seat. The rifle butt, which was approximately 3V2 feet from the passenger door, was pointed up and toward either the driver or the middle of the seat. The barrel was pointed down, toward the right front fire wall, with the muzzle resting on the right front floorboard. Both weapons were loaded with the safety off. No guns were recovered on defendant’s person. Defendant did have a key to the trunk of the automobile in his pants pocket, however. The officers found a combined amount of 4,226 grams of cannabis from the passenger compartment and trunk of the car.

Defendant was never identified as the owner of either gun. No fingerprints were taken from the guns, and no fingerprints were taken from the car. Defendant was never seen inside the car. One officer opined defendant would have had to open the car door to gain possession of either gun. As a result of such testimony, defendant made a motion for directed verdict on the basis the State had failed to prove defendant was armed. The trial court denied defendant’s motion.

Defendant initially contends on appeal he was not proven guilty of armed violence, because no evidence was presented he was armed.

“A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.” (Ill. Rev. Stat. 1989, ch. 38, par. 33A— 2.) “Armed with a dangerous weapon” is defined as: “A person is considered armed with a dangerous weapon for purposes of this Article, when he carries on or about his person or is otherwise armed with a category I or category II weapon.” (Ill. Rev. Stat. 1989, ch. 38, par. 33A— 1(a).) The State urges us to find defendant was in “constructive possession” of the weapons in the motor vehicle such that he was “otherwise armed” for purposes of the armed violence statute. We decline to make such a finding. Instructive on this issue is People v. Condon (1992), 148 Ill. 2d 96, 592 N.E.2d 951. In Condon, defendant was arrested in a house where there were a number of guns, including two loaded pistols, discovered at various locations throughout the house. Most of the guns were located on the second floor of the house; only an unloaded shotgun and unloaded rifle were found on the first floor, in a bedroom. Condon was found in the kitchen, where there were no guns. After a bench trial, Condon was found guilty of armed violence, unlawful possession with intent to deliver cannabis, unlawful possession with intent to deliver cocaine, and unlawful delivery of a controlled substance. In affirming the appellate court’s reversal of Condon’s armed violence conviction, our supreme court reasoned it was impossible for the defendant to use the guns as they were situated because they were too far removed. The court noted that the intended purpose of the armed violence statute is to deter felons from using dangerous weapons so as to avoid the deadly consequences which might result if the felony victim resists. A felon with a weapon at his disposal is forced to make a spontaneous decision to kill without time to reflect on the use of such deadly force. Without a weapon at hand, the felon is not faced with such a deadly decision. The danger that Condon would be forced to make an instantaneous decision to use the guns was nonexistent because he had no “immediate access to” or “timely control over” the guns. (Condon, 148 Ill. 2d at 109-10, 592 N.E.2d at 958; see also People v. Melgoza (1992), 231 Ill. App. 3d 510, 532; People v. Shelato (1992), 228 Ill. App. 3d 622, 626-27, 592 N.E.2d 585, 589.) Likewise, defendant here had no immediate access or timely control over either the pistol or rifle. The rifle was pointed toward the floorboard, with the butt of the rifle near the driver, Reggie Harre, some 3V2 feet from the passenger door. The pistol was next to Reggie Harre’s right leg, and the butt of the rifle was over the pistol. Defendant, on the other hand, was outside the automobile and seated on the hood. In order to have gained immediate access to the rifle, he would have had to reach or lean through the window, grab the barrel of the gun, and pull it through the window, barrel first, or run to the door, open it, and grab the rifle. Defendant was arrested as he stepped off the hood of the car. Clearly, the quick action of police prevented him from possessing or having immediate access to the weapon. Moreover, defendant could not constructively possess the weapons as he was not in the passenger compartment of the car. See People v. Zambetta (1985), 132 Ill. App. 3d 740, 751, 477 N.E.2d 821, 829.

The State counters circumstantial evidence exists that defendant was in the automobile with the guns and cannabis; therefore, he was armed with a dangerous weapon. In particular, the State points to the testimony of the officers conducting surveillance on the road to the house who heard a car door open then close, the gate across the road open, and the car drive on. The State theorizes defendant got out of the car, opened the gate, and rode to the house on the hood of the car. A similar argument of possession was made in Condon. Our supreme court found such arguments too far-reaching. If the mere presence of guns in the house with Condon and the cocaine were enough to violate the armed violence statute, the purpose of the statute would be frustrated. (Condon, 148 Ill. 2d at 110, 592 N.E.2d at 958.) To be “otherwise armed” for the purposes of the statute, the court held that the defendant would have had to carry a weapon on his person or alternatively to have had “immediate access to” or “timely control over” a weapon when the police entered the house. (Condon, 148 Ill. 2d at 110, 592 N.E.2d at 958.) Applying the reasoning of Condon to the facts of the case at bar, defendant would have had to have carried a weapon on his person or alternatively to have had “immediate access to” or “timely control over” one of the guns in the car when the police arrested him. Clearly, defendant did not have a weapon at the time the police announced their presence, nor did he have “immediate access to” or “timely control over” either gun in the auto. The mere physical existence of a weapon does not satisfy the intendments of the armed violence statute. (Condon, 148 Ill. 2d at 110-12, 592 N.E.2d at 958-59; see also Melgazo, 231 Ill. App. 3d at 532; Shelato, 228 Ill. App. 3d at 626-27, 592 N.E.2d at 589.) We therefore reverse defendant’s conviction for armed violence.

Alternatively, the State contends defendant should be found guilty on the basis of accountability for the actions of Reggie Harre. This argument is unavailable, however, for no accountability instructions were given at defendant’s trial. See People v. Hudson (1983), 113 Ill. App. 3d 1041, 1043, 448 N.E.2d 178, 180.

Defendant next raises several other contentions in connection with his armed violence conviction. As we reverse that conviction, we need not address these issues.

Defendant’s last contentions of error on appeal concern his conviction for unlawful possession of cannabis with intent to deliver. Defendant argues that his sentence is excessive and that the court miscalculated the street value fíne. We cannot consider these issues because defendant failed to perfect an appeal from his cannabis conviction. Defendant was sentenced on July 19, 1990, for unlawful possession of cannabis with intent to deliver. While defendant filed a notice of appeal and motion for sentence reduction on August 2, 1990, defendant also asked by letter, filed on August 14, 1990, that the notice of appeal and motion for reduction of sentence be withdrawn. On September 5, 1990, defendant appeared in court and again personally stated he wished to withdraw his motion for reduction of sentence and notice of appeal. Once the court allowed the withdrawal of these documents, no appeal of defendant’s cannabis conviction remained pending. Moreover, defendant’s notice of appeal filed on his armed violence conviction cannot be said to include the cannabis conviction, especially when it was filed prior to the imposition of a sentence for the cannabis offense. We therefore conclude no notice of appeal was perfected on the cannabis conviction. See 134 Ill. 2d R. 301.

For the foregoing reasons, we reverse the judgment of the circuit court of Fayette County convicting defendant of armed violence.

Reversed.

GOLDENHERSH, P.J., concurs.

JUSTICE WELCH,

dissenting:

I dissent from the majority for two reasons: (1) I disagree with their conclusion that defendant did not have immediate access to or timely control over the weapons while seated on the hood of the car just prior to his arrest, and (2) I think there is sufficient circumstantial evidence for a jury to reasonably conclude that just moments before his arrest defendant had been seated in the passenger compartment of the car with the weapons next to him and certainly within his immediate control while at the same time unlawfully possessing cannabis with intent to deliver it. I would therefore affirm defendant’s conviction for armed violence.

There are now numerous cases which discuss the meaning of the phrase “otherwise armed” as used in section 33A — 1(a) of the Criminal Code of 1961. (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 1(a).) In People v. Zambetta (1985), 132 Ill. App. 3d 740, 477 N.E.2d 821, defendant’s conviction for armed violence was upheld based on a finding that defendant was “otherwise armed” with a dangerous weapon while seated in the driver’s seat of his car only a few feet from the unlocked glove compartment which contained a fully loaded revolver positioned in a shoulder holster. The court found that had the drug sale gone “sour,” defendant would have had ready access to the weapon.

In People v. King (1987), 155 Ill. App. 3d 363, 507 N.E.2d 1285, the court found that defendant was not “otherwise armed” with a dangerous weapon where she met the arresting officers at her door wrapped in only a blanket and explained that she was preparing to bathe, she did not live alone, an unloaded gun was found in a bedroom and defendant denied any knowledge of the gun. The court held that the mere physical existence of the weapon without knowledge or control, including immediate access to the weapon, is not within the meaning of the armed violence statute. The court stated that if the case fell within the purview of the armed violence statute,

“a defendant could be convicted of armed violence, in an otherwise factually similar situation as is present in this case, simply because a weapon was located anywhere in the home. This is a result not intended by the legislature.” 155 Ill. App. 3d at 368-69, 507 N.E.2d at 1288.

In People v. Bond (1989), 178 Ill. App. 3d 1020, 534 N.E.2d 156, defendant’s conviction for armed violence was affirmed where a gun was found underneath the seat cushions of the sofa in defendant’s apartment where he was seated when arrested. Defendant had been ordered to sit on the sofa by the police who, at the time, were unaware of the presence of the weapon. The court found that, although the gun was not physically in defendant’s hands or in actual contact with his person, it was immediately accessible to him. Defendant had knowledge of, control over, and access to the weapon while he was sitting on top of it, regardless of the fact the police had ordered him to sit there. The gun was clearly within defendant’s reach and constituted the kind of danger contemplated by the armed violence statute.

In People v. Shelato (1992), 228 Ill. App. 3d 622, 592 N.E.2d 585, defendant’s conviction for armed violence was vacated because defendant was not “otherwise armed” where, upon defendant’s arrest, a gun was found wrapped in a rag underneath some 60 bags of marijuana inside a zippered duffel bag located more than 10 feet away from defendant. The court held that in order to be “otherwise armed” within the meaning of the statute, defendant must have knowledge or control of the weapon and immediate access to it. If a weapon is not immediately accessible to the felon, the danger the statute seeks to curb is not present. The court held that had the gun been located beneath the cushion of the couch, as in Bond, or had it been “otherwise easily reached” by defendant, the court would find that the weapon was immediately accessible or readily available to be used by defendant. 228 Ill. App. 3d at 627, 592 N.E.2d at 589.

Finally, in People v. Condon (1992), 148 Ill. 2d 96, 592 N.E.2d 951, relied upon by the majority, our supreme court addressed this question. In Condon, defendant was arrested in the kitchen of his home where there were no guns. However, a number of guns were discovered at various locations throughout the house. The court found:

“It was impossible for the defendant to use the guns as they were situated because they were too far removed from the defendant. *** [H]e had no ‘immediate access to’ or ‘timely control over’ the guns.” Condon, 148 Ill. 2d at 110, 592 N.E.2d at 958.

Thus, our supreme court has made it clear that, in order to be “otherwise armed” within the meaning of the armed violence statute, a felon must have “some type of immediate access to or timely control over the weapon.” (Emphasis in original.) (Condon, 148 Ill. 2d at 110, 592 N.E.2d at 958.) This requirement serves the purpose of the statute, which is to deter felons from using dangerous weapons so as to avoid the deadly consequences which might result if the victim resists.

“A felon with a weapon at his or her disposal is forced to make a spontaneous and often instantaneous decision to kill without time to reflect on the use of such deadly force. [Citation.] Without a weapon at hand, the felon is not faced with such a deadly decision. Hence we have the deterrent purpose of the armed violence statute. Thus, for this purpose to be served, it would be necessary that the defendant have some type of immediate access to or timely control over the weapon.” (Emphasis in original.) Condon, 148 Ill. 2d at 109-10, 592 N.E.2d at 958.

I think in the instant case defendant had such immediate access to or timely control over the weapons located on the front seat of the car that he was in a position to make an instantaneous decision to use the guns. Defendant was not distant from the car and need only have reached through the window or opened the car door to grab one of the guns. Both weapons were loaded and the safeties off. This case is not like King or Condon, where the weapons were located some distance from the defendant, indeed in different rooms of the house. Nor is it like Shelato, where the gun was encumbered and not easily accessible. The instant case is similar to Zambetta, where defendant need only have reached into his unlocked glove compartment, or Bond, where defendant need only have reached underneath the sofa cushion on which he was seated.

I think the danger sought to be curbed by the armed violence statute was clearly present in the instant case. The presence of a weapon within easy and quick reach enhances the danger that any felony that is committed will have deadly consequences should the victim (or the police) resist. (Bond, 178 Ill. App. 3d at 1022, 534 N.E.2d at 158.) It is the ready availability of the weapon which poses the risk that the statute seeks to address. (Shelato, 228 Ill. App. 3d at 626, 592 N.E.2d at 589.) The weapons in the instant case were readily available and easily reachable by the defendant, and the jury could have reasonably so found. Possession and knowledge are questions of fact for the jury, and such findings will not be set aside on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. (People v. Stamos (1991), 214 Ill. App. 3d 895, 905, 574 N.E.2d 184, 190.) I do not think such is the case here.

I note for the sake of clarity that I do not rest my conclusion on a theory of “constructive possession,” as urged by the State. I simply think that defendant had immediate access to, or timely control over, the weapons such that he was “otherwise armed” within the meaning of the armed violence statute.

I also think there was sufficient circumstantial evidence that the jury could have reasonably found that minutes prior to his arrest defendant had been seated in the passenger compartment of the vehicle with the guns and cannabis and that he exited the vehicle to open the gate and rode to the house on the hood of the car. These are reasonable inferences from the evidence that police officers had observed the car travel rapidly down the gravel road leading to the driveway, turn sharply into the driveway and stop at the gate which blocked the driveway to the house. The officers then heard a car door open and shut, the gate open and the car drive through the gate. When the car pulled up to the house, defendant was seated on the hood of the car between the right wheel and the windshield. That defendant had in his pocket a key to the car trunk supports a finding that he had been a passenger in the car.

A criminal conviction should not be set aside unless the evidence is so unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (Shelato, 228 Ill. App. 3d at 625, 592 N.E.2d at 588.) The standard to be employed in reviewing the sufficiency of the evidence is not whether the reviewing court believes the evidence establishes defendant’s guilt beyond a reasonable doubt, but whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of crime beyond a reasonable doubt. (Shelato, 228 Ill. App. 3d at 625, 592 N.E.2d at 588.) I would not disturb the jury’s verdict in the instant case.


author: JUSTICE STOUDER

text:
    LENHARDT TOOL AND DIE COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Steve Decker, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5—91—0870WC
    Opinion filed August 13, 1992.

      James M. Gallen, of Evans & Dixon, of St. Louis, Missouri, for appellant.
    William J. Meacham, of Smith, Allen, Delaney, Mendenhall & Associates, of Alton, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The appellee, Steve Decker (the claimant), filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1991, ch. 48, par. 138.1 et seq.) contending he sustained com-pensable injuries in the course of and arising out of his employment with the appellant, Lenhardt Tool & Die Company (the employer). Following a hearing, the arbitrator denied compensation finding the claimant had failed to prove he sustained any permanent disability on the date of the alleged incident. The Industrial Commission (Commission) affirmed; however, the circuit court reversed, finding the decision was against the manifest weight of the evidence. The employer appealed to this court. We dismissed the appeal, finding the circuit court implicitly remanded the cause and therefore the circuit court’s order was not appealable. On remand, the Commission awarded benefits and the circuit court confirmed. The employer now appeals, challenging the original circuit court decision.

The claimant testified that on the morning of June 21, 1984, he was working on a grinder machine for the employer. At about 11:30 a.m. he attempted to remove the grinding wheel from the machine. He testified the wheel weighed about 100 pounds. As he removed the wheel from the machine, his heel caught in the rubber matting on the floor. The wheel hit his leg and his right leg “locked up” and he found he could not move. Within 15 to 20 minutes he could walk again; however, he found he could not put any weight on his right leg.

The claimant was seen in the emergency room of Alton Memorial Hospital by Dr. John Stimaman. X rays taken revealed advanced arthritic and degenerative changes in the right knee. In July of 1984, Stimaman recommended surgery.

The claimant sought a second opinion from Dr. Earl Holt. Holt also recommended surgery. On July 23, 1984, Holt performed a Marmor medial compartment arthroplasty on the claimant’s right knee. He found, among other things, advanced osteoarthritis. The claimant returned to work on October 29, 1984. The claimant continued to be treated by Holt until March of 1985.

The record shows the claimant had an extensive history of problems and treatments involving the right knee. According to the record, the claimant injured his knee playing high school football in October of 1974. He continued to have problems with the knee, and surgery was performed in April of 1975. The record shows complaints concerning the right knee in 1976 and an injury to the knee in February of 1977.

The October 1979 medical reports of Dr. H. Beemer state the claimant complained his knee had never been completely okay since the April 1975 surgery. An arthrogram was performed, which revealed extensive calcification of the posterior portion of the medial menicus and a probable tear of the regenerated medial cartilage. Beemer performed a de-bridement procedure on the right knee. The claimant continued receiving treatment of his right knee from Beemer through the spring of 1980.

The medical records of Dr. M. Taylor, dated October 17, 1983, state the claimant had been forced to limit his athletic activities since the de-bridement procedure in 1979. The examination of that date revealed mild effusion of the right knee. The X rays showed severe medial and moderate lateral compartment osteoarthritic changes of the right knee.

In his deposition testimony, Dr. Holt opined the claimant’s condition was related to his previous injuries. Dr. Stimaman disagreed with Holt’s opinion and believed the incident of June 21, 1984, aggravated his previous condition.

The arbitrator denied compensation, finding the claimant had failed to prove he sustained permanent injuries on June 21, 1984. The Commission without comment affirmed.

The circuit court reversed, finding the evidence “seems almost overwhelming that Petitioner [claimant] aggravated his pre-existing knee condition.” The circuit court dismissed the opinion of Dr. Holt as “untra-conservative [sic].” The court found Holt’s reports and testimony showed he took an adversarial approach to workers’ compensation cases.

The employer appealed to this court. The appeal was dismissed on the grounds that the circuit court order was not appealable because the order implicitly remanded the cause to the Commission for further proceedings. On remand, the Commission awarded temporary total disability benefits, medical expenses and permanent partial disability benefits representing a permanent loss of 45% of the use of the claimant’s right leg. The circuit court confirmed and the employer now brings this appeal.

On appeal, the employer argues the circuit court erred in finding the original decision of the Commission was against the manifest weight of the evidence. The employer argues that the circuit court has substituted its judgment for that of the Commission.

It is for the Commission to decide questions of fact, including the credibility of witnesses, and to choose between conflicting medical evidence. (Rowe Construction Co. v. Industrial Comm’n (1984), 128 Ill. App. 3d 365, 470 N.E.2d 1196.) The Commission’s findings and decisions will not be set aside on review unless they are against the manifest weight of the evidence. (Rambert v. Industrial Comm’n (1985), 133 Ill. App. 3d 895, 477 N.E.2d 1364.) The test of whether the Commission’s decision was supported by the manifest weight of the evidence is not whether the reviewing court or any other tribunal might reach the opposite conclusion on the same evidence, but whether there was sufficient factual evidence in the record to support the Commission’s decision. Benson v. Industrial Comm’n (1982), 91 Ill. 2d 445, 440 N.E.2d 90.

In the instant case, the claimant had an extensive history of injuries and problems involving his right knee over a period of 10 years. He underwent at least two operations on the knee.

Dr. Holt opined the problems for which he treated the claimant following the June 21, 1984, incident were related to the claimant’s previous problems. On July 23, 1984, Holt examined the knee during surgery and found nothing to suggest “a recent additional superimposed job related injury.” Dr. Stimaman disagreed with Holt’s opinion and believed the incident aggravated a preexisting condition.

We find the circuit court erred in substituting its judgment for that of the Commission. The Commission’s original decision is supported by the testimony of Dr. Holt and the claimant’s extensive history of problems with his right knee. In this case the medical testimony was conflicting. It was for the Commission to determine which testimony it found more credible. The record supports the Commission’s decision to deny compensation.

For the foregoing reasons, the judgment of the circuit court of Madison County is reversed, and the Commission’s original decision is reinstated.

Reversed; original Commission decision reinstated.

McCULLOUGH, P.J., and WOODWARD, H. LEWIS and RAKOW-SKI, JJ., concur.


text:
    G M A C MORTGAGE CORPORATION, Successor in Interest to Norwest Mortgage, Inc., Plaintiff and Counterdefendant-Appellant, v. LARRY W. LARSON et al., Defendants and Counterplaintiffs-Appellees (First Galesburg National Bank and Trust Company et al., Defendants-Counterplaintiffs).
    Third District
    No. 3—91—0825
    Opinion filed August 13, 1992.

      Guerard, Kalina & Musial, of Wheaton (John J. Pcolinski, Jr., of counsel), for appellant.
    Richard A. Dahl, of Barash, Stoerzbach & Henson, of Galesburg (Barry M. Barash, of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff/counterdefendant, G M A C Mortgage Corporation, appeals from a supplemental judgment awarding attorney fees to the defendants/counterplaintiffs, Larry W. Larson, Lynn G. Larson and First Galesburg National Bank & Trust Co. We reverse and remand.

On May 21, 1984, the Larsons granted a mortgage on their primary residence to secure a note evidencing a loan of $140,000 from Norwest Mortgage, Inc. The proceeds of the loan were used to pay off a $127,282.26 loan from First Galesburg National Bank & Trust Co. The balance of the loan proceeds paid various expenses and fees, and included a withholding of $9,100 representing a 6.5% loan discount.

The transaction was termed a capped one-year adjustable rate mortgage. The initial rate of interest charged was 9.875%. The note provided that on the “Change Date” a new interest rate would be determined by reference to an index (the weekly average yield on United States Treasury securities adjusted to a constant maturity of one year). The first “Change Date” was designated June 1, 1985.

On April 17, 1985, the Larsons were notified that as of June 1, 1985, the interest rate on their loan would increase from 9.875% to 11.875%. This change resulted in an increase in their monthly payments of approximately $208. The record shows the Larsons made payments on the loan through July 8, 1985. Sometime thereafter, the mortgage was acquired by G M A C Mortgage Corporation. On March 24, 1986, GMAC filed a complaint to foreclose on the mortgage.

Subsequently, the Larsons filed a six-count counterclaim. Count I, based on common law fraud, alleged Norwest intentionally and knowingly failed to disclose to the Larsons that the initial interest rate was a discounted rate and was not based on the index. Counts II and III based on the same facts alleged violations of the Consumer Fraud and Deceptive Business Practices Act (hereinafter referred to as the Consumer Fraud Act) (Ill. Rev. Stat. 1991, ch. 121V2, par. 261 et seq.). Count IV sought rescission of the transaction under section 1635(a) of the Truth in Lending Act (15 U.S.C. §1635(a) (1988)). Counts V and VI sought damages under the Truth in Lending Act (15 U.S.C. §1601 et seq. (1988)) for various discrepancies in the loan documents.

A bench trial was held on April 18, 1991, and May 3, 1991. Between the two hearing dates, the Larsons filed a motion for attorney fees, expenses and costs. On May 9, 1991, the trial court entered a memorandum opinion. In the opinion, the court found the Larsons had failed to prove that Norwest intentionally acted to defraud them. However, the court found in favor of the Larsons on the remaining five counts of their counterclaim. Consequently, the court found against GMAC on the complaint to foreclose. The court awarded $1,000 in damages under the State consumer fraud actions alleged in counts II and III. The court also awarded $1,000 in damage under the Truth in Lending actions alleged in counts V and VI. The court found in favor of the Larsons on count IV and declared the transaction rescinded. GMAC was directed to file a release of the mortgage upon the receipt of $112,651 from the Larsons. The court awarded attorney fees under counts II, III, IV, V and VI of the counterclaim and stated the court would hear evidence concerning the Larsons’ motion for attorney fees.

Pursuant to the memorandum opinion a judgment was entered on May 28, 1991. The judgment specifically reserved jurisdiction to determine the Larsons’ reasonable attorney fees and costs. On August 26, 1991, the Larsons filed an amended motion for attorney fees, expenses and costs. The amended motion requested that the attorney fees not be computed on an hourly basis, but that the reasonable fees be found to equal 33V3 of the “benefit” realized by the Larsons in prevailing on their counterclaim. The amended motion contained a table listing the attorneys, staff and experts who assisted in the case and the hourly rate for each person. Attached to the motion was a 24-page computer-generated statement. The statement listed specific dates, initials of the person performing the stated task, time spent on the task and a brief description of the task performed. The statement showed total hourly fees of $16,555.75 and total expenses of $770.60.

A hearing was held on the amended motion on September 23, 1991. No verbatim record was kept of this hearing; however, the trial court subsequently certified a bystander’s report of proceedings. According to the bystander’s report, Larry Larson testified there was no written fee agreement between himself and his attorney, Barry Barash. However, he had agreed to pay a reasonable fee at the conclusion of the proceedings.

Barash testified he was charging $150 per hour at the time he took the case, and that recently he had increased his hourly fee to $175. Barash testified he believed the fees reflected on the statement attached to the amended motion were reasonable.

Over the objection of GMAC, the trial court admitted a 1988 affidavit of Barry Barash from a case filed in the United States District Court for the Central District of Illinois. The affidavit stated Barash had extensive experience in the Truth in Lending Act. The affidavit listed 13 published appeals in which Barash was involved as counsel. The affidavit concluded with a quote from an opinion by Judge Richard Posner in a case {In re Pine (7th Cir. 1983), 705 F.2d 936) concerning whether Barash’s claimed fee in that case was reasonable.

In a memorandum opinion dated September 25, 1991, the trial court noted the Larsons were requesting the attorney fees be based on a percentage of the benefits they received as a result of prevailing on the counterclaim. The court stated the Larsons were contending that because they had use of the loan monies for a period in excess of four years, they received a benefit of approximately $109,000. The court found it was obligated to look to the benefits derived by the Larsons, as well as the time spent on the case and the uniqueness of the case.

The court recognized that part of the hourly time recorded in the computer-generated statement was spent on the common law fraud claim on which the Larsons did not prevail. The court opined “that a portion of the time involved has to be allotted to matters on which the Defendant [sic] did not prevail; that would include the matter relating to the Fraud [sic] allegations.”

The court viewed the case as very unique and involving difficult issues. The court believed the case was not an ordinary hourly rate fee case and felt obligated to “attach a degree of importance to the uniqueness of the case and the positive results to the client involved.” Therefore, the court awarded $13,555 in fees based on the time spent by the attorneys and staff, plus expenses of $770. In addition, the court awarded $12,790 based on the uniqueness of the case, the special questions presented, the degree of responsibility in the management of the case and the benefits to the Larsons. From this total award of $27,115 the court subtracted $2,234.15 to take into account Rule 11 (Fed. R. Civ. P. 11) sanctions paid by GMAC in a previous attempt to remove the matter to Federal court.

A supplemental judgment awarding a total of $24,880.85 in attorney fees was filed on September 30, 1991. On October 7, 1991, a satisfaction and release of judgment was filed by GMAC. The release and accompanying order specifically excluded the supplemental judgment awarding attorney fees to the Larsons. GMAC filed a timely appeal from the supplemental judgment.

Initially, we note numerous motions were filed with respect to the briefs in this case. Most of the outstanding motions were disposed of at or prior to oral argument, and it would appear the only remaining outstanding motion is the Larsons’ motion to strike GMAC’s reply brief. In any event, all outstanding motions regarding the briefs filed in this case are hereby denied.

In their appellee’s brief, the Larsons argue that GMAC’s satisfaction and release of judgment filed October 7, 1991, precludes further appeal on the issue of attorney fees. The Larsons contend GMAC should not be allowed to accept payment on the note and mortgage in return for release of the mortgage and continue to appeal the issue of attorney fees.

We find the Larsons’ contention to be without merit in this case. For while it is generally the rule in civil cases that when a judgment has been voluntarily paid or its benefits accepted the question becomes moot (see County of Cook v. Malysa (1968), 39 Ill. 2d 376, 235 N.E.2d 598), in the instant case, the payment and release of judgment filed on October 7, 1991, concerned the substantive underlying dispute between the parties and specifically exempted the supplemental judgment from the release. The cases cited by the Larsons are readily distinguishable in that they involve appeals from the same judgment with which the appealing party had already complied. In this case, the supplemental judgment is separate and distinct from the judgment rendered in the underlying dispute. As best we can determine, GMAC has not paid the award of attorney fees. We find a controversy continues to exist with respect to the independent supplemental judgment and therefore have jurisdiction to reach the merits of the issues raised on appeal.

On appeal, GMAC contends the trial court improperly awarded what amounts to a contingent-like attorney fee to the Larsons.

At oral argument, we note the Larsons characterized the total award of attorney fees as representing 25% of the benefit realized by them. It is apparent the trial court granted a contingent fee award, and we find this was improper given that no written contingent fee agreement existed between the Larsons and their attorney. (See 134 Ill. 2d R. 1.5.) In addition, we find the Larsons’ reliance on general pronouncement of law found in Blankenship v. Dialist International Corp. (1991), 209 Ill. App. 3d 920, 568 N.E.2d 503, irrelevant. In Blankenship, a written contingent fee contract existed. The only question before the court was whether an award of fees equivalent to the terms of the contract was reasonable.

In sum, the supplemental judgment must be reversed and the cause remanded for a new hearing on the issue of attorney fees. A new hearing is required because this court also finds error in the use of the “benefit” allegedly derived by the Larsons as the basis for calculating the attorney fees.

The trial court’s opinion specifically awarded $12,790 in additional fees based in part on the benefit derived by the Larsons. The court stated the Larsons were maintaining that they derived a benefit of $109,000 for the use of the loan proceeds for a period in excess of four years. It appears the trial court took this figure from the Lar-sons’ amended motion. In actuality, the $109,651 figure put forward in the Larsons’ amended motion was the difference between the $112,651 the Larsons were ordered to pay GMAC and the alleged $3,000 damage award received based on the Consumer Fraud and Truth in Lending Acts. How this figure related to the alleged benefit derived is unclear.

In any event, according to the amended motion the benefit derived was calculated using a formula based on the use of $140,000 for a period of 2,689 days (May 21, 1984, to October 1, 1991) multiplied by 10% and divided by 365. This yielded a contended savings of $103,140. Added to this was the $3,000 in damages awarded, for a contended total benefit of $106,140.

According to the Larsons’ theory, the benefit they realized resulted from the use of the loan proceeds from the date of the loan through the date they paid GMAC pursuant to the May 28, 1991, judgment. They cite no authority for this theory or the formula utilized in calculating the alleged benefit.

This court is not contending the Larsons did not benefit from the use of the loan proceeds during the 5V2 years of litigation. However, we find this formulation too uncertain given that the realized benefit is a function of the delay in the foreclosure proceedings, and there is also the difficulty of assessing whether the defendants in the proceedings (in this case the Larsons) are responsible for the delay and to what extent. It would be inappropriate to award attorney fees based on a formula that would in actuality award an attorney for delaying the case as long as possible. In the instant case, a number of actions by the Larsons delayed the outcome of GMAC’s foreclosure action, including the dismissal of the original complaint. So that while the Lar-sons were able to have the benefit of the use of the loan monies, this partly resulted from their own litigation strategy. In sum, we do not believe the “benefit” theory espoused by the Larsons is a viable theory under which damages can be assessed.

In any event, even though a benefit may have been realized by the Larsons, in the instant case that benefit was not calculated in a reasonable manner. The record fails to support a finding that the Lar-sons had use of the entire $140,000 for in excess of seven years (2,689 days). The record clearly reflects that some portion of the loan was repaid in the first year. Also, as discussed above, there was no attempt to take into account delays attributable to actions by the Lar-sons in the course of litigation which necessarily lengthened the proceedings.

In sum, the “benefit” theory advanced by the Larsons was unreliable, incorrectly calculated in the instant case and to the extent relied on by the trial court erroneous.

Because the issues may arise on remand we address the other contentions raised on appeal by GMAC.

GMAC argues the trial court erred in admitting the affidavit of Barry Barash. We find the affidavit was probably admissible but of little relevance. Barash could have testified concerning his involvement in the cases listed in the affidavit. The quote from Judge Posner’s opinion was inappropriate; however, it is derived from a published opinion readily available to the court. As far as reflecting the expertise of Barash or the reasonableness of his fees, the Pine case was nine years old at the time of the hearing in the instant matter and therefore of little relevance.

GMAC argues the time spent on the various causes of action advanced in the counterclaim were not sufficiently delineated.

It is incumbent upon a party petitioning for attorney fees to submit sufficient evidence to support the claim. (In re Marriage of Collins (1987), 154 Ill. App. 3d 655, 506 N.E.2d 1000.) Where a party can recover attorney fees for some of the claims brought but not on others, the moving party must differentiate what part of the attorney’s work was spent on the claims for which recovery is allowed. See Chesrow v. DuPage Auto Brokers, Inc. (1990), 200 Ill. App. 3d 72, 557 N.E.2d 1301.

In the instant case, the Larsons did not prevail on their common law fraud claim, for which they would not have been able to recover attorney fees in any event. The trial court made an ambiguous reference to this fact. Based on the hourly fees, the court awarded $13,555 in attorney fees. The statement attached to the amended motion listed a total of $16,555 in hourly fees. The trial court failed to disclose the basis for its award of $13,555. On remand, an attempt must be made to show how much of the attorney’s time was spent on count I of the counterclaim, and the trial court must state specifically how the award, if any, reflects the fact the Larsons did not prevail on this count.

In addition, the factors to be considered in awarding fees under the Consumer Fraud Act and the Truth in Lending Act differ in some respects. (See Kleidon v. Rizza Chevrolet, Inc. (1988), 173 Ill. App. 3d 116, 527 N.E.2d 374 (six factors); Barber v. Kimbrell’s, Inc. (4th Cir. 1978), 577 F.2d 216 (12 factors).) On remand, these factors should be reflected in the evidence presented and the decision of the trial court.

For the foregoing reasons, the supplemental judgment of the circuit court of Knox County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

GORMAN and HAASE, JJ., concur.


author: JUSTICE GORMAN

text:
    RONALD AFFRUNTI, Plaintiff-Appellee, v. VILLAGE FORD SALES, INC., Defendant-Appellant.
    Third District
    No. 3—91—0911
    Opinion filed August 7, 1992.

      Steven J. Prodehl, of June & Prodehl, of Joliet, for appellant.
    Ronald L. Caneva and John J. Hornicak, both of Luzbetak & Caneva, of Lockport, for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

The plaintiff, Ronald Affrunti, filed suit against the defendant, Village Ford Sales, Inc., to recover the difference between the price he paid for an automobile and the advertised sale price. The trial court held that the defendant had a duty to inform the plaintiff of the advertised price and rendered judgment in favor of the plaintiff in the amount of $1,529 plus costs. The defendant appeals. Additionally, the plaintiff seeks attorney fees for this appeal.

At trial, the plaintiff testified that on August 4, 1988, he went to the defendant’s dealership in his search to buy a family car. He parked by the used car lot and was met by Fred Galaraza, a salesman for the defendant. According to the plaintiff, he saw many used cars on the lot, including four Chevrolet Celebrities. Only one of the Celebrities was a 1986 model. He did not look at all the cars on the used car lot, and he did not know what other models were there.

The plaintiff became interested in the 1986 Celebrity, which he stated was the only blue one. Galaraza told the plaintiff that the car had 29,000 miles on it. The plaintiff confirmed this, and also checked the odometers on the other three Celebrities. Their readings were all above 50,000 miles. The plaintiff asked Galaraza the price of the 1986 Celebrity because it was not listed on the car. Galaraza replied that he did not know and would have to check in the office. However, Ga-laraza did not go back to the office. Instead, after the plaintiff looked at a few other cars, Galaraza told him that the price of the Celebrity was $8,600. The plaintiff test-drove the car and concluded a deal with Galaraza for $8,524, which included a trade-in and a discount for a front-end alignment.

The plaintiff further testified that he returned home a few hours later and read the defendant’s newspaper advertisement which listed the blue 1986 Celebrity with 29,000 miles on it at $6,995. The next day he called Galaraza and told him that he had sold the Celebrity for an amount higher than the advertised price. Galaraza put the plaintiff on hold and then came back on the line and said, “By God, it is the same.” The plaintiff asked to redo the deal. Galaraza again put the plaintiff on hold. When he came back on the line, Galaraza told the plaintiff that the car in the advertisement had been sent to auction. The following day, the defendant’s assistant manager told the plaintiff that the car in the advertisement had been sent to auction and there was nothing he could do about the deal.

Joseph Constanzo, the defendant’s sales manager, testified that Galaraza was no longer employed by the defendant at the time of trial. He stated that the records of the sale in question were no longer available. He further stated that there were no records to show how many Chevrolet Celebrities were either on the lot or sold in 1988.

Constanzo also testified that it was the general manager’s responsibility to place advertisements for the sale of cars in the local newspaper. He stated that the advertisements are not kept at the dealership, and the sales staff are not notified about the ads placed for a particular car. According to Constanzo, the prices of the cars are listed on the cars themselves, and the sales staff are permitted to negotiate with the customers. Finally, Constanzo stated that the prices listed in the advertisements do not mean that they are the prices of the cars listed, and the sales staff can sell the cars for a higher price.

A copy of the advertisement in question was introduced into evidence.

The trial court held that the defendant had a duty to inform the plaintiff of the advertised price of the car. Accordingly, it awarded the plaintiff the $1,529 difference between the purchase price and the advertised price, as well as costs.

On appeal, the defendant argues that its agents’ acts did not constitute a deceptive or unfair practice under the Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (Ill. Rev. Stat. 1991, ch. 121V2, par. 261 et seq.). We disagree.

Section 2 of the Consumer Fraud Act forbids unfair or deceptive acts or practices, including the use of any deception, fraud, false pretense, false promise, misrepresentation, or the concealment, suppression, or omission of any material fact, in the conduct of any trade or business with the intent that others rely on the deceptive practices. (Ill. Rev. Stat. 1991, ch. I2IV2, par. 262.) A misrepresentation is material if it relates to a matter upon which the plaintiff could be expected to rely in determining to engage in the conduct in question. Elder v. Coronet Insurance Co. (1990), 201 Ill. App. 3d 733, 558 N.E.2d 1312.

To fall within the purview of the Act, it need only be shown that the defendant is engaged in a trade or commerce and that he has committed unfair or deceptive acts or practices in the conduct of that trade or commerce. (People ex rel. Hartigan v. Knecht Services (1991), 216 Ill. App. 3d 843, 575 N.E.2d 1378.) The Act incorporates the definition of “deceptive trade practice” set forth in the Uniform Deceptive Trade Practices Act. (Ill. Rev. Stat. 1991, ch. 1211/2, par. 312.) This definition includes “advertising] goods or services with the intent not to sell them as advertised.” Ill. Rev. Stat. 1991, ch. 121V2, par. 312(9).

In the instant case, while the defendant’s sales manager testified that the car prices were listed on the cars themselves, the plaintiff stated that no price was listed on the 1986 Celebrity. The plaintiff asked the salesman, Galaraza, the price of the car. However, after first stating that he did not know the price, Galaraza quoted a price that was higher than the advertised price. Although the price was negotiable, the defendant ought to have informed the plaintiff of the advertised sale price since the advertisement was placed to draw in customers. There is no question that the price was a material fact. We find that the evidence presented supports the conclusion that the defendant advertised the car with the intent not to sell it as advertised. Therefore, the defendant’s failure to disclose the advertised sale price constituted deceptive conduct under the Act.

The defendant also argues that the trial court’s finding that the car bought by the plaintiff was the same one advertised was against the manifest weight of the evidence. Again, we disagree.

For a judgment to be against the manifest weight of the evidence, an opposite conclusion must be clearly evident. Acosta v. Chicago Transit Authority (1976), 39 Ill. App. 3d 80, 349 N.E.2d 613.

In the instant case, both the advertised car and the one the plaintiff purchased were 1986 Chevrolet Celebrities with 29,000 mile odometer readings. The plaintiff testified that the other three Celebrities he saw all had readings of over 50,000 miles. Furthermore, the defendant’s sales manager claimed that the sales records involving the car the defendant purchased were no longer available. He also claimed that there were no records to show how many Chevrolet Celebrities were either on the lot or sold in 1988. Considering this evidence, we find that it was not against the manifest weight of the evidence for the trial court to conclude that the car advertised was the car sold to the plaintiff.

Finally, the plaintiff requests an award of his reasonable attorney fees for this appeal.

Section 10a(c) of the Consumer Fraud Act provides that a court may award reasonable attorney fees to a prevailing party in “any action brought by a person under this Section.” (Ill. Rev. Stat. 1991, ch. 121V2, par. 270a(c).) Where the claim must be litigated not only at trial, but also on appeal, the attorney fees incurred by the prevailing party in connection with the appellate proceedings must be deemed an integral part of that claim and should be recoverable under the statute. Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464.

Here, the plaintiff’s attorney has provided an itemized bill for the services expended in this appeal. We find that his total of $1,937.50 is reasonable. We also find that allowing the recovery of appellate attorney fees is consistent with the purpose of the Consumer Fraud Act, which is to eradicate deceptive and unfair business practices. We therefore award the plaintiff $1,937.50 in attorney fees.

For the foregoing reasons, the judgment of the circuit court of Will County is affirmed and the plaintiff is awarded $1,937.50 in attorney fees.

Affirmed with fees awarded.

McCUSKEY and SLATER, JJ., concur.


author: JUSTICE SLATER

text:
      In re MARRIAGE OF ROBERT A. LOFFREDI, Petitioner-Appellant, and FLORENCE M. LOFFREDI, Respondent-Appellee.
    Third District
    No. 3—91—0531
    Opinion filed July 31, 1992.

      Ross B. Shugan and Robert J. Schmit, both of LeVine, Wittenberg, Eisner, Newman & Silverman, of Homewood (Howard M. LeVine, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Petitioner, Robert Loffredi, appeals the dismissal of a portion of his petition to modify a judgment for dissolution of marriage. While no appellee’s brief has been filed on this appeal, we reach the merits of this case since the record is simple and the claimed errors easily resolvable. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

On October 3, 1989, the circuit court of Will County entered a judgment dissolving the marriage of the petitioner and the respondent, Florence Loffredi. At the time of judgment, the parties had one minor child, Kevin, born November 6, 1973. The parties entered into a settlement agreement which was incorporated into the judgment of dissolution. The agreement provided in relevant part as follows:

“College Education
1. ROBERT shall pay and be solely responsible for, subject to his financial ability, the trade school or college education expenses of the children. By ‘education expenses’ there is meant and included, but not by way of limitation, tuition, books, supplies, registration and other required fees, board and lodging (if a child is in attendance at an out-of-town trade school or college), fraternity dues, assessments and charges, reasonable spending allowances, and round trip transportation expenses between the trade school or college and the home of a child (if a child is in attendance at an out-of-town trade school or college), the financial obligation of those round trips not to exceed four (4) in any calendar year. FLORENCE shall have no responsibility for the payment of any of the aforesaid expenses and ROBERT shall hold her harmless from same.”

The agreement specifically precluded modification of its terms.

Petitioner’s income at the time of the judgment was $90,000 per year. Sometime in early 1990, petitioner lost his job, and on June 6, 1990, he filed a petition to reduce his child support obligation. The court reduced that obligation from $1,000 to $275 per month on October 9, 1990.

On June 3, 1991, petitioner filed a petition to modify the judgment of dissolution alleging that he could no longer afford to pay for Kevin’s college education due to his unemployment. The petition requested, in part, a modification of the judgment to require respondent to contribute to the cost of education. The petition also sought to reduce or limit petitioner’s obligation to contribute to those expenses.

Respondent filed a motion to dismiss the petition pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) alleging that the relevant provision of the judgment was nonmodifiable under sections 502 and 513 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, pars. 502, 513) because the provision was entered in accordance with a settlement agreement which precluded modification of its terms. The trial court granted the motion to dismiss that portion of the petition which requested a modification of the judgment. Petitioner withdrew the remainder of his petition and filed this appeal.

The issue raised by this appeal is whether the trial court erred in finding that a provision in a dissolution judgment which provides for the payment of children’s college expenses is not modifiable when that provision is contained in a settlement agreement incorporated into the judgment. We find that the trial court did so err, and we reverse.

As noted above, the agreement in this case specifically precluded modification of its terms. Section 502(f) of the Act deals with modification of settlement agreements:

“Except for terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the agreement so provides. Otherwise, terms of an agreement set forth in the judgment are automatically modified by modification of the judgment.” (Ill. Rev. Stat. 1989, ch. 40, par. 502(f).)

Our decision in this case hinges on whether the provision in question is a term “concerning the support, custody or visitation of children.” The historical and practice notes to section 502 state that “[t]he purpose of subsection (f) is to permit the parties to preclude or limit modification of terms pertaining to maintenance, and other matters, excluding matters pertaining to children.” (Emphasis added.) (Ill. Ann. Stat., ch. 40, par. 502, Historical & Practice Notes, at 402 (Smith-Hurd 1980).) We conclude that a provision for the payment of a child’s college expenses is a “matter pertaining to children” and in the nature of child support.

Section 513 of the Act provides in relevant part:

“§513. Support for Non-minor Children and Educational Expenses. *** The Court also may make such provision for the education and maintenance of the child or children, whether of minor or majority age, out of the property and income of either or both of its parents as equity may require, whether application is made therefor before or after such child has, or children have, attained majority age. In making such awards, the court shall consider all relevant factors which shall appear reasonable and necessary, including:
(a) The financial resources of both parents.
(b) The standard of living the child would have enjoyed had the marriage not been dissolved.
(c) The financial resources of the child.” (Ill. Rev. Stat. 1987, ch. 40, par. 513.)

Section 513 grants the circuit court the discretion to extend a parent’s obligation for support of his or her children beyond their minority when that support is for educational expenses. (In re Marriage of Harsy (1990), 193 Ill. App. 3d 415, 549 N.E.2d 995.) “Educational expenses are the exception to the general rule that a parent’s responsibility to support his children terminates upon emancipation of the children.” Harsy, 193 Ill. App. 3d at 424, 549 N.E.2d at 1000.

It is well settled that orders entered pursuant to section 513 are always modifiable. (In re Marriage of Holderrieth (1989), 181 Ill. App. 3d 199, 206, 536 N.E.2d 946, 951; In re Marriage of Alltop (1990), 203 Ill. App. 3d 606, 561 N.E.2d 394.) In In re Marriage of Harsy (1990), 193 Ill. App. 3d 415, 549 N.E.2d 995, the circuit court granted a post-judgment petition requiring a father to establish two trusts for payment of the future college expenses of his minor children. On appeal, the father argued that there was no evidence that the children would even attend college upon becoming of age to do so. In affirming the order, the court stated:

“Clearly, if the child has no need or a lesser need for the provision for educational expenses when he or she reaches college age or if the child’s need is greater than that provided for, a modification for these expenses can be sought by either parent from the court and an adjustment to accommodate that change can be made at that time.” Harsy, 193 Ill. App. 3d at 423-24, 549 N.E.2d at 1000.

The reason such orders remain modifiable is because the Act provides that all provisions respecting support of children are modifiable at anytime. (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) In In re Marriage of Albiani (1987), 159 Ill. App. 3d 519, 512 N.E.2d 30, the appellant argued that the trial court had erred in its judgment of dissolution by failing to adjudicate the ultimate responsibility for payment of the future academic costs of the parties’ minor child. The court affirmed, stating:

“[I]f the parties at the time those expenses are incurred are unable to agree as to how the costs will be shared, the trial court retains jurisdiction to decide the contribution of each party. Indeed, our supreme court has expressed a public policy in favor of the welfare of children, and to this end it has stated that the ‘court retains jurisdiction of a divorce proceeding at all times to enforce, adjust or modify the original decree in regard to the custody or care of children as changing circumstances warrant.’ ” Albiani, 159 Ill. App. 3d at 526-27, 512 N.E.2d at 35, quoting Summer v. Borovic (1977), 69 Ill. 2d 220, 228-29, 370 N.E.2d 1028.

The trial court found that the provision at issue in this case was nonmodifiable because it was part of a settlement agreement which was incorporated into the judgment of dissolution. We disagree. We see no reason why a provision for the payment of college expenses should be modifiable if ordered by the court upon petition pursuant to section 513, but not modifiable if it is contained in a settlement agreement. In either case the purpose of the provision is to support the child.

It is well established that the circuit court has the authority to modify a child support provision in a dissolution of marriage judgment that was entered in accordance with a settlement agreement. (Blisset v. Blisset (1988), 123 Ill. 2d 161, 526 N.E.2d 125; In re Marriage of Geis (1987), 159 Ill. App. 3d 975, 512 N.E.2d 1354; Ill. Rev. Stat. 1989, ch. 40, pars. 502(f), 510(a).) Our supreme court has held that “the statutory power of a court to reduce the amount of *** child support, is not defeated by the fixing of the amount of the payments in a settlement agreement which was incorporated in the decree.” Lamp v. Lamp (1980), 81 Ill. 2d 364, 370, 410 N.E.2d 31.

In In re Marriage of Falat (1990), 201 Ill. App. 3d 320, 559 N.E.2d 33, the circuit court granted a post judgment petition requesting an increase in child support while the parties’ two adult children were attending college but living with their mother. On appeal, the father argued, inter alia, that while under the terms of a settlement agreement he agreed to continue child support while his children were in college, he did not agree to an increase in child support for his adult children. The court affirmed, holding that “[i]n marriage dissolution proceedings, a court is not bound by the agreements between the parties providing for the support of children.” Falat, 201 Ill. App. 3d at 327, 559 N.E.2d at 38.

The two cases cited by the respondent in her motion to dismiss are distinguishable from the case at bar. In In re Marriage of Houston (1986), 150 Ill. App. 3d 608, 501 N.E.2d 1015, a husband was found in contempt for failure to pay college expenses which had been allocated solely to him in the settlement agreement incorporated into the judgment for dissolution. The court specifically noted that the case involved only a petition to enforce a settlement agreement and not a petition to modify the judgment. The court therefore rejected the husband’s argument that he should have been allowed to present evidence at the contempt hearing bearing on the factors set forth in section 513 of the Act. “To hold otherwise would convert every proceeding under section 502 [citation] into a de novo review of the settlement agreement, rendering that statute a nullity.” Houston, 150 Ill. App. 3d at 614, 501 N.E.2d at 1019.

Initially, we note that the instant case involves a petition for modification of judgment, not enforcement. Moreover, we agree with the court in Houston that the factors set out in section 513 are irrelevant in enforcement proceedings. Those factors are likewise irrelevant in a modification proceeding. The pertinent question in determining whether to grant a petition for modification of a provision for payment of college expenses is the same as that on a petition to modify any other support term. That is, whether the petitioner has shown a substantial change in circumstances (Ill. Rev. Stat. 1989, ch. 40, par. 510(a)).

Respondent also relied on In re Marriage of Holderrieth (1989), 181 Ill. App. 3d 199, 536 N.E.2d 946. That case, like Houston, dealt specifically with enforcement of a settlement agreement, not modification, and is therefore inapposite to the case at bar.

In summary, we find that a provision in a dissolution judgment for the payment of a child’s college expenses is a term in the nature of child support. The circuit court therefore retains jurisdiction to modify such a provision at anytime pursuant to sections 502 and 510 of the Act regardless of whether the provision was ordered by the court under section 513, or incorporated into the judgment as a result of a settlement agreement. We do not hold that the provision at issue in this case should or should not be modified, but only that such provisions are modifiable. The order of the circuit court dismissing in part petitioner’s petition for modification of judgment is reversed and the case remanded for further proceedings consistent with this opinion.

Reversed and remanded.

BARRY, P.J., and STOUDER, J., concur.