author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE CLARENCE DAVIS, Defendant-Appellant.
    Third District
    No. 3—91—0931
    Opinion filed September 15, 1992.
    Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Nancy Rink Carter, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Willie Clarence Davis, was charged with two counts of first degree murder and one count of burglary. He pled guilty to one count of first degree murder and received a sentence of natural life imprisonment. Thereafter, he filed a motion to reduce sentence or withdraw his plea. The trial court denied the motion, and the defendant appeals.

At the guilty plea hearing, the State informed the court that the possible term for first degree murder was 20 to 100 years. The trial judge, sua sponte, explained to the defendant that the maximum sentence would be natural life if he found the murder was particularly heinous or brutal or was committed in the course of a felony. The defendant then pled guilty. In return for the plea, the State dropped the first degree felony murder and burglary charges, and agreed not to seek the death penalty.

The evidence offered at the plea and sentencing hearings showed that the defendant went to the victim’s residence to talk to the victim’s son. The son, however, was not present. When the victim refused to let the defendant inside, the defendant pushed his way into the residence. A confrontation ensued. The victim, whom the defendant had known for many years, called the defendant “a nigger.” The defendant then repeatedly stabbed and shot the victim. Leaving the victim for dead, the defendant stole a revolver and a .22 caliber shotgun. Later, the defendant tried to sell the guns.

The evidence further showed that the defendant had a history of substance abuse and mental problems. According to the presentence report, he was under the influence of drugs and alcohol on the night of the crime. His only explanation for the offense was that he was “trying to kill myself, or cause my own death.”

At the sentencing hearing, the trial judge stated, “the defendant is eligible for a sentence of natural life because it was an offense which the defendant could have received a sentence for death.” The court noted that the aggravating factor for the death sentence was that the defendant had committed a burglary in the course of the murder. The court specifically found that this factor did not have to be proved beyond a reasonable doubt. Thereafter, it imposed a sentence of natural life.

On appeal, the defendant argues that the trial court lacked authority to impose a natural life sentence because the evidence did not establish that the defendant had committed first degree murder “in the course of” committing a burglary. (See Ill. Rev. Stat. 1991, ch. 38, par. 9— l(b)(6).) He notes that for the murder to have been committed in the course of a burglary, he must have intended to commit a theft when entering the residence. (Ill. Rev. Stat. 1991, ch. 38, par. 19—1(a).) He maintains he had no intent to steal the guns at the time he entered the residence. The theft, he claims, was merely an afterthought. Accordingly, he argues that the intent element was not established by the evidence.

Initially, we note that the court was mistaken in finding that burglary did not have to be proved beyond a reasonable doubt. The natural life sentence was based on the fact that the defendant could have received a death sentence if the State had not agreed to forego seeking it. An aggravating factor for a death sentence must be proved beyond a reasonable doubt. (Ill. Rev. Stat. 1991, ch. 38, par. 9—1(f).) We find that under these circumstances, justice requires that the factor be proved beyond a reasonable doubt.

We further note that intent to commit burglary is usually established by circumstantial evidence since it is rarely susceptible of direct proof. (See People v. Fisher (1980), 83 Ill. App. 3d 619, 404 N.E.2d 859.) Here, the evidence shows that the defendant unlawfully entered the residence. Unlawful entry into a building containing personal property normally gives rise to an inference of intent sufficient to sustain a burglary conviction. (People v. Boguszewski (1991), 220 Ill. App. 3d 85, 580 N.E.2d 925.) However, this inference is not permissible if there are circumstances that are inconsistent with the intent to commit a theft. People v. Boguszewski (1991), 220 Ill. App. 3d 85, 580 N.E.2d 925.

In the instant case, the defendant went to the victim’s home to speak to his son. He made no effort to conceal his identity during his unlawful entry. The failure to conceal his identity suggests that he lacked the criminal intent to commit a burglary. (People v. Beasley (1976), 41 Ill. App. 3d 550, 353 N.E.2d 699.) Moreover, he said that he was under the influence of drugs and alcohol, and that he only intended to cause his own death. We therefore find that the evidence failed to establish beyond a reasonable doubt that the defendant intended to commit a burglary when he entered the residence. See People v. Obrochta (1986), 149 Ill. App. 3d 944, 500 N.E.2d 1059.

We further note that the defendant only pled guilty to first degree murder. The charges of burglary and felony murder were dropped by the State. However, the defendant was sentenced as if he pled guilty to felony murder because the trial judge found the crime was committed in the course of a felony. The integrity of the plea process is at risk when a defendant effectively pleads guilty to one crime but is sentenced to another.

The defendant also argues that the trial judge may have mistakenly believed the defendant was guilty of burglary by unlawfully remaining. In the instant case, the defendant admitted he unlawfully entered the victim’s home. Consequently, he could not have been guilty of burglary by remaining since that offense only applies in cases where the initial entry was lawful. (People v. Boone (1991), 217 Ill. App. 3d 532, 577 N.E.2d 788.) Moreover, nowhere in the record did the trial judge indicate that he found burglary based on unlawful remaining. Thus, we hold that the trial judge did not find, and could not have properly found, burglary based on this theory.

Based on the foregoing, we vacate the defendant’s sentence and remand the cause for resentencing. Our decision renders moot the defendant’s second argument concerning the length of his sentence.

Vacated and remanded.

McCUSKEY and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
    DONALD ORSO et al., Petitioners-Appellees, v. BART A. LINDSEY, Indiv. and as Ex’r of the Estate of Charles A. Galli, Deceased, et al., Respondents-Appellants.
    Fifth District
    No. 5—91—0701
    Opinion filed August 28, 1992.

      Donald R. Brandon, of Herrin, for appellants.
    Randy Patchett, of Winters, Brewster, Murphy, Crosby & Patchett, of Marion, for appellees.
   JUSTICE RARICK

delivered the opinion of the court;

Respondents, residuary devisees and/or legatees under the 1990 will of Charles Galli, appeal the entry of summary judgment by the circuit court of Williamson County in favor of petitioners, residuary devisees and/or legatees under the 1960 will of Charles and Marion (Mary 0.) Galli. We affirm.

Charles and Mary Galli executed a last will and testament which they declared to be their joint and mutual last will and testament on February 10, 1960. Mary Galli died in February of 1977, and the 1960 joint will was admitted to probate as her will. On July 12, 1990, Charles Galli executed a new will which purported to revoke all prior wills and codicils. Following Charles’ death in January 1991, Lindsey, executor of the estate of Charles Galli, filed a petition for admission of Charles’ 1990 will to probate. Petitioners subsequently filed a will contest attacking the 1990 will. Both petitioners and respondents filed motions for summary judgment requesting a ruling as to whether the 1960 joint will was revocable by the surviving spouse. The trial court, declaring the 1960 will to be irrevocable after the death of Mary Galli, found in favor of petitioners.

Respondents argue on appeal the trial court erred in granting summary judgment for petitioners. Respondents, relying primarily on paragraph “SECOND” of the will, believe the 1960 will gave all property to the surviving spouse in fee simple with an unqualified right, not limited to the lifetime of that spouse, to dispose of such property as he or she saw fit. Accordingly, Charles, as the surviving spouse, was therefore free to bequeath the property to anyone he wished with no restrictions, an option which he chose to do when he executed a new will in 1990. Respondents miss the point. The 1960 will of Charles and Mary Galli cannot be so narrowly construed as respondents urge but rather must be interpreted as a whole. We look first to the language of the will itself.

“LAST WILL AND TESTAMENT
We, CHARLES A. GALLI and MARION (MARY 0.) GALLI, husband and wife of the City of Herrin, Williamson County, Illinois, being of sound and disposing mind, memory and understanding, do hereby make, publish and declare this to be our joint and mutual last will and testament, hereby revoking any and all prior wills by us, or either of us, heretofore made.
FIRST
It is our will and we direct that all the just debts and funeral expenses of us, or either of us, be paid as soon as possible after our deaths, respectively, consistent with the proper administration of our estates.
SECOND
We give, will, devise and bequeath to each other, respectively, all the rest, residue and remainder of our estate, respectively, both real, personal and mixed, of whatsoever kind and nature, and wherever the same may be situate, of which we may die seized or possessed respectively, or to which we may be entitled at the time of our deaths, respectively. It is our desire, intention and will that the survivor of us take and hold the whole estate of the deceased in fee simple with the unqualified right to trade, sell, mortgage or otherwise dispose of all or any part of said estate as he or she shall see fit.
THIRD
After the decease of both of us, it is our will, and the will of each of us, and we, and each of us, do and does direct that all the estate which we, or either of us, shall own or be entitled at the time of our deaths, or the death of the survivor of us, both real, personal and mixed and wherever situate shall go and be paid over, delivered, transferred and conveyed as follows:
(a) [specific bequest to sister of Charles Galli]
(b) [specific bequest to sister of Mary Galli]
(c) [specific bequest to brother of Mary Galli]
(d) Any motor vehicle registered in our names jointly or in the name of one of us individually, shall, upon the death of the survivor of us, or upon the simultaneous! [sic] death of the both of us, shall become the absolute property of Bradlee Lindsay [sic].
(e) The Town Shop, located in Herrin, Illinois, or any other business owned by us or in which the survivor of us might be shown to have an interest at the time of his or her death; all cash on hand and all monies deposited in banks or other depositories; all real estate; all household furnishings and clothing; all insurance benefits; all stocks, bonds and jewelry, and any other property not specifically mentioned herein, which shall constitute the estate of the survivor of us, shall be equally divided among the following named individuals, namely: Donald Lee Orso—Shirley Ann Patrick—Reba Mae Harrison—William Bart Orso—Dolores McConnell—Bart Ray Lindsay [sic] and Bradlee Lindsay [sic]. It is our intention and will, and we do here collectively and individually declare it to be so, to disinherit any and all persons not specifically mentioned in this our joint and mutual last will and testament.
FOURTH
It is our desire and will that the several items mentioned in sub-paragraph (e) above be distributed among the bamed [sic] beneficiaries in kind so far as the same is practicable and our executor, hereinafter named, shall be allowed three (3) months after the issuance of letters testamentary to accomplish plan, satisfactory to the several beneficiaries, for such distribution. In the event the executor is unable to make an amicable division of the aforesaid mentioned items, the whole number shall be sold under order of court and the proceeds arising from said sale distributed among the several beneficiaries herein mentioned said sub-paragraph (e) in manner as therein directed. Any item mentioned in said sub-paragraph (e) not subject to division in kind is to be sold and the proceeds distributed as directed.
* * *
SIXTH
We do nominate and appoint the survivor of us as executor of this our joint and mutual last will and testament and direct that such executor be permitted to act as such without surety upon his bond.
SEVENTH
It is our will that upon the death of the survivor of us Ester Butson act as executor of this our last will and testament and we direct that she be permitted to act as such without surety upon her bond.
EIGHTH
This joint and mutual will is made in pursuance of a contract or agreement between us for the disposition of all of our property, whether owned by us as joint tenants or as tenants in common, in the manner hereinabove, in this, our last will and testament provided.”

Secondly, we are guided by several well-established principles useful not only in interpreting a joint and mutual will but also in determining whether a will is indeed joint and mutual. We start with the premise that a joint and mutual will is a single testamentary instrument which contains the wills of two or more persons. (In re Estate of Arnold (1986), 142 Ill. App. 3d 258, 262, 491 N.E.2d 458, 461; Rauch v. Rauch (1983), 112 Ill. App. 3d 198, 200, 445 N.E.2d 77, 79.) It is executed jointly and disposes of property owned in severalty, in common, or jointly by the testators. (Arnold, 142 Ill. App. 3d at 262, 491 N.E.2d at 461; Rauch, 112 Ill. App. 3d at 200, 445 N.E.2d at 79; see also Buettner v. Rintoul (1990), 195 Ill. App. 3d 874, 876, 553 N.E.2d 6, 7.) It must be executed pursuant to a contract or agreement, which the will itself may comprise, between the testators, requiring the survivor of them to dispose of the property as the will’s provisions instruct. (Arnold, 142 Ill. App. 3d at 262, 491 N.E.2d at 461; In re Estate of Schwebel (1985), 133 Ill. App. 3d 777, 782, 479 N.E.2d 500, 504; Rauch, 112 Ill. App. 3d at 200, 445 N.E.2d at 79.) As a result, the contract embodied in a joint and mutual will becomes irrevocable after the death of one of the testators. (Perino v. Eldert (1992), 229 Ill. App. 3d 602, 604, 593 N.E.2d 151, 152; Rauch, 112 Ill. App. 3d at 200, 445 N.E.2d at 80; see also Larison v. Record (1987), 117 Ill. 2d 444, 449-50, 512 N.E.2d 1251, 1253; In re Estate of Knight (1989), 178 Ill. App. 3d 777, 780, 533 N.E.2d 949, 951.) We also note that the purpose of construing a will is to ascertain, if possible, the intention of the testator or testators. (Arnold, 142 Ill. App. 3d at 263, 491 N.E.2d at 462.) This intention should be gathered from the four corners of the instrument, and when the four corners of the document reveal no ambiguity about the testator’s intentions, summary judgment may properly be entered. (In re Estate of Kaplan (1991), 219 Ill. App. 3d 448, 454, 579 N.E.2d 963, 966; Arnold, 142 Ill. App. 3d at 263, 491 N.E.2d at 462.) And finally, although each case must be viewed individually, five common characteristics are recognized as being useful to identify a joint and mutual will. (See Kaplan, 219 Ill. App. 3d at 454, 579 N.E.2d at 966-67; Rauch, 112 Ill. App. 3d at 200-01, 445 N.E.2d at 80.) These characteristics are: (1) the designation the testators have assigned to the will, whether they refer to it as their joint and mutual will; (2) reciprocal provisions in the will, i.e., a disposition of his or her entire estate in favor of the other; (3) a pooling of the testators’ interests whether owned jointly, in common, or severally into one joint fund; (4) a common dispositive scheme under which the testators dispose of the common fund in approximately equal shares to their heirs; and (5) use of common plural terms such as “we” and “our” as evidence of the testators’ intent to make a joint and mutual will. Rauch, 112 Ill. App. 3d at 201, 445 N.E.2d at 80; see also Perino, 229 Ill. App. 3d at 605, 593 N.E.2d at 152-53.

Applying these principles to the will at hand, we agree with the trial court’s determination that the 1960 will of Charles and Mary Galli is a joint and mutual will which became irrevocable after the death of Mary Galli. Each one of the five characteristics of a joint and mutual will is present in the 1960 will. The will repeatedly uses the plural terms “we,” “our” and “us” throughout the will. (Cf. Buettner, 195 Ill. App. 3d at 876-77, 553 N.E.2d at 7 (use of common language sporadic and irregular).) The testators made reciprocal provisions as evidenced by paragraph “SECOND” and pooled their interests and employed a common dispositive scheme as found in paragraphs “THIRD” and “FOURTH.” And, the testators declared in the will itself that it was their joint and mutual will made “in pursuance of a contract or agreement between us for the disposition of all of our property,” including upon the death of the survivor of the two. Reading the will as a whole, it is apparent that the testators did not intend to give the surviving spouse the power to revoke their joint and mutual will by making other dispositions of their property inconsistent with the dictates of the 1960 will. See Kaplan, 219 Ill. App. 3d 448, 579 N.E.2d 963; Schwebl, 133 Ill. App. 3d 777, 479 N.E.2d 500; Rauch, 112 Ill. App. 3d 198, 445 N.E.2d 77; cf. Perino, 229 Ill. App. 3d 602, 593 N.E.2d 151; In re Estate of Signore (1986), 149 Ill. App. 3d 904, 501 N.E.2d 282; In re Estate of Mueller (1975), 26 Ill. App. 3d 163, 324 N.E.2d 674; In re Estate of Briick (1959), 24 Ill. App. 2d 77, 164 N.E.2d 82.

Defendants argue, however, the language of paragraph “SECOND” of Charles and Mary Galli’s will which states, “It is our desire, intention and will that the survivor of us take and hold the whole estate of the deceased in fee simple with the unqualified right to trade, sell, mortgage, or otherwise dispose of all or any part of said estate as he or she shall see fit,” defeats the irrevocability of the will. We disagree. Again construing the will as a whole, this language gave the surviving spouse the unfettered right to use the property, including disposition of it by sale, gift, trade, etc., during that spouse’s lifetime only. It did not give the surviving spouse the freedom to leave the property, upon his or her death, in some manner inconsistent with the instructions of the prior joint and mutual will. The power to use the property however the surviving spouse sees fit does not mean he or she also has the power to change the testators’ dispositive scheme in contravention of their express agreement or contract. (See Arnold, 142 Ill. App. 3d at 263-64, 491 N.E.2d at 462; Rauch, 112 Ill. App. 3d at 201-02, 445 N.E.2d at 80; Helms v. Darmstatter (1966), 34 Ill. 2d 295, 301-02, 215 N.E.2d 245, 249; see also Kaplan, 219 Ill. App. 3d at 455-57, 579 N.E.2d at 967-69; cf. Larison, 117 Ill. 2d at 452-53, 512 N.E.2d at 1254-55; King v. Travis (1988), 170 Ill. App. 3d 1036, 1043-44, 524 N.E.2d 974, 979.) As stated in In re Estate of Bell (1972), 6 Ill. App. 3d 802, 286 N.E.2d 589, a joint and mutual will is “in effect a family settlement which should be '*** especially favored on grounds of public policy upholding the honor and peace of families.’ ” (6 Ill. App. 3d at 805, 286 N.E.2d at 591, quoting Ham v. Marshall (1964), 46 Ill. App. 2d 92, 96, 196 N.E.2d 377.) We therefore conclude the 1960 will of Charles and Mary Galli is a joint and mutual will which became irrevocable upon the death of Mary Galli. As a result, the 1990 will of Charles Galli, as the surviving spouse, is totally ineffective to distribute any of the proceeds of the estate in a manner inconsistent with the 1960 joint and mutual will.

For the aforementioned reasons, we affirm the granting of summary judgment in favor of petitioners as entered by the circuit court of Williamson County.

Affirmed.

GOLDENHERSH, P.J., and WELCH, J., concur.


author: JUSTICE HENRY LEWIS

text:
      In re MARRIAGE OF CONNIE R. HEIL, Petitioner-Appellant, and DOUGLAS W. HEIL, Respondent-Appellee.
    Fifth District
    No. 5—91—0277
    Opinion filed September 1, 1992.

      Robert H. Rath, of Rath & Fornes, of Harrisburg, for appellant.
    Michael V. Oshel, RC., of Harrisburg, for appellee.
   JUSTICE HENRY LEWIS

delivered the opinion of the court:

Petitioner, Connie R. Heil, appeals from a judgment of the circuit court of Saline County denying her petition for modification of child support. Petitioner contends that the court abused its discretion in denying the petition, because she did, in fact, show a “substantial change in circumstances” as required by the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 510(a)) (hereinafter Dissolution Act).

During Douglas and Connie Heil’s marriage, two daughters were born. Angela Dawn Heil was born August 17, 1973, and Candace L. Heil was born January 5, 1976. The parties, Douglas and Connie Heil, were divorced on July 14, 1978. Their daughters were almost 5 years old and 2V2 years old, respectively. Under the terms of the judgment for dissolution, Connie was awarded custody of the two girls. The divorce decree required that respondent pay $25 a week per child for each of their two daughters. Additionally, respondent was required to pay 10% of the amount of undistributed net profits paid over to the respondent at the close of the business fiscal year from his men’s clothing store, Stricklin Men’s Wear (Stricklin), for the duration of the partnership. However, if the respondent became a majority and controlling shareholder of Stricklin, the 10% would increase to 20% of the profits. When the first of the minor children attained 18 years of age, died, or became emancipated, the percentage would be reduced to 10%. Respondent was also required to pay his daughters’ medical, dental, ophthalmological, and optometric expenses.

Petitioner filed her petition for modification of child support on October 4, 1989, stating that the respondent’s income, the costs of supporting the minor children, and the needs of the minor children had substantially increased since the judgment of dissolution.

On August 6, 1990, a hearing was held on the petition for modification. Both parties testified. The trial court entered an order on March 21, 1991, dismissing the petition for modification. More specifically, the court determined that petitioner failed to meet her burden of proof because she did not show “anything with respect to the financial circumstances of petitioner or the children.” Further, the court stated that “[t]he personal income of respondent does not appear to require an increase.” This appeal followed.

Petitioner contends that she did, in fact, demonstrate a substantial change in circumstances. We agree.

Section 510(a) of the Dissolution Act (Ill. Rev. Stat. 1991, ch. 40, par. 510(a)) provides that a child support judgment can be modified only upon a showing of a “substantial change in circumstances.” (Fedun v. Kuczek (1987), 155 Ill. App. 3d 798, 801, 508 N.E.2d 531, 533.) After the threshold question of whether a substantial change in circumstances has occurred is answered, then and only then may the court determine the amount of the increase in child support. (Fedun, 155 Ill. App. 3d at 802, 508 N.E.2d at 534.) After the court finds a substantial change in circumstances under section 510(a), the same factors are considered in setting the amount of modified child support as were considered in determining the original amount under section 505. (Fedun, 155 Ill. App. 3d at 802, 508 N.E.2d at 534.) The relevant factors that the court is to consider are the following:

“(a) the financial resources of the child;
(b) the financial resources and needs of the custodial parent;
(c) the standard of living a child would have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the child, and his educational needs; and
(e) the financial resources and needs of the non-custodial parent.” Ill. Rev. Stat. 1991, ch. 40, pars. 505(a)(2)(a) through (a)(2)(e).

The modification of child support rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (In re Marriage of Dall (1991), 212 Ill. App. 3d 85, 96, 569 N.E.2d 1131, 1138.) Abuse of discretion occurs “where no reasonable man would take the view adopted by the trial court.” (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126, 129.) More recently, it has been stated that abuse of discretion occurs when a court’s decision is against the manifest weight of the evidence. In re Marriage of Stamberg (1991), 218 Ill. App. 3d 333, 336, 578 N.E.2d 261, 262.

In the case at bar, the trial court did not find that a substantial change in circumstances had occurred. We disagree. The following relevant facts were adduced at the hearing: at the time of the divorce, respondent was a partner and joint owner of Stricklin. In the mid-1980’s, respondent purchased his partner’s interest in Stricklin and became the sole owner. At the time of the divorce, respondent made $200 gross per week. After respondent became the sole owner, he received director’s fees which, in 1989, amounted to $4,250. Additionally, the respondent received $100 per week from his current wife’s company, Harrisburg Truss Company. Therefore, respondent’s undisputed gross income is as follows:

Stricklin salary $ 10,400
Stricklin director’s fee 4,250
Harrisburg Truss Company 5,200
Total $ 19,850

Hence, it is undisputed that respondent’s income has increased. The increased ability of the obligor parent alone can justify an increase in child support. (Legan v. Legan (1979), 69 Ill. App. 3d 304, 308-09, 387 N.E.2d 413, 416.) It should be noted that the Legan court stated, “Only some change in circumstances of any nature which would justify equitable action by the court in the best interests of the children *** is required.” (69 Ill. App. 3d at 308-09, 387 N.E.2d at 416.) Thus, without considering respondent’s benefits that he receives due to his self-employment, respondent’s income has almost doubled. At the time of the divorce, respondent’s gross income was approximately $10,400, and his undisputed gross income is now $19,850.

The primary difficulty in setting the proper amount of child support in this case is the difficulty in ascertaining respondent’s income. According to section 505(a) of the Dissolution Act, the minimum amount of support for two children is 25% of the supporting party’s net income as defined by statute. (In re Marriage of Lefler (1988), 185 Ill. App. 3d 677, 681, 542 N.E.2d 1, 4, appeal denied (1989), 128 Ill. 2d 664, 548 N.E.2d 1071.) “Net income” is defined as the total of all income from all sources, minus the following deductions:

“(a) Federal income tax (properly calculated withholding or estimated payments);
(b) State income tax (properly calculated withholding or estimated payments);
(c) Social Security (FICA payments);
(d) Mandatory retirement contributions required by law or as a condition of employment;
(e) Union dues;
(f) Dependant and individual health/hospitalization insurance premiums;
(g) Prior obligations of support or maintenance actually paid pursuant to a court order;
(h) Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of guests. The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self-executing modification upon termination of such payment period.” Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(3).

The respondent receives many benefits because he is self-employed that do not appear on his personal income tax statement. In August of 1988, Stricklin, which is now incorporated, purchased a hunting lodge in Pope County. The mortgage payment on the lodge is $500 per month plus $300 per year for real estate taxes and insurance which is also paid by the corporation. The corporation pays a yearly life insurance premium in the amount of $1,330. Another benefit respondent receives is that his wife’s company pays a $200 health insurance premium for respondent. Because respondent is self-employed, it is difficult to determine his true income. This is especially true because he is the sole decision-maker in determining how much money is left in his corporation and the amount of money which is taken out and paid over to him. The primary problem with respondent receiving such benefits is that an obligor parent who is not self-employed would not receive such benefits in addition to other income.

Section 505(3)(h) of the Dissolution Act exempts “[e]xpenditures for repayment of debts that represent reasonable and necessary expenses for the production of income” from a supporting parent’s net income for the purpose of calculating child support (Ill. Rev. Stat. 1991, ch. 40, par. 505(3)(h)). (In re Marriage of Cornale (1990), 199 Ill. App. 3d 134, 136, 556 N.E.2d 806, 808.) We believe that one-half of the mortgage payment on the hunting lodge, $250 per month, plus one-half of the taxes and insurance, $150 per year, should be added into respondent’s income when determining his true income for child support purposes. Although the respondent stated that the hunting lodge is used as a benefit to good customers of Stricklin, the respondent admitted that he and his family used the hunting lodge at least 50% of the time. Thus, $3,150 income should be imputed to the respondent’s personal income because the record contains no indication that at least one-half of these payments were reasonable and necessary expenditures for the production of income. Cornale, 199 Ill. App. 3d at 136, 556 N.E.2d at 808.

We do not, however, believe that respondent’s yearly life insurance premium of $1,330 which is paid by the corporation should be added into respondent’s income. The respondent testified that the previous beneficiary to the aforementioned insurance policy was his father, James Wayne Heil. However, respondent stated that he was currently in the process of changing the beneficiary designation to his current wife. Therefore, if the respondent died, his current wife would receive the proceeds, which would enable her to carry on Stricklin. This money could be used for the benefit of Stricklin and should not be supplemented to respondent’s personal income.

Although petitioner claims that the respondent’s health insurance premium, which Harrisburg Truss Company pays for him, should be added into respondent’s personal income, we decline to do so. According to section 505(a)(3)(f) (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(3)(f)), dependent and individual health/hospitalization insurance premiums are deducted from the obligor parent’s gross income to arrive at the obligor’s net income.

Therefore, respondent’s true gross income, for child support purposes, is at least $23,000 per year. We arrived at this figure by adding his income from Stricklin ($10,400 per year), director’s fees from Stricklin ($4,250 per year), income from Harrisburg Truss Company ($5,200 per year), one-half of the monthly mortgage payment on the hunting lodge which is paid by the corporation ($3,000 per year), and one-half of the insurance and taxes on the hunting lodge which is also paid by the corporation ($150 per year).

Petitioner testified that her current gross income is $15,000 per year. However, the petitioner stated that in 1989 she worked several hours’ overtime, which caused her gross income to be $19,000 per year.

Furthermore, petitioner testified that the costs for necessary expenses, such as food, housing, transportation, and clothing, for the parties’ two daughters had increased since the 1978 divorce. Petitioner testified to the following increases since 1978:

Cost at Dissolution Current Cost
(1978) (1989)
(1) Clothing $500 per year $3,000-$4,000 per year
(2) Food $1,820 per year $3,900 per year
($35 per week) ($150 every two weeks)
(3) Spending money $ None $780 per year
($15 per week)
(youngest daughter only, oldest daughter has a job)
(4) Allowances $ None $1,080 per year (school year)
(5) Haircuts $ None $120 per year
(6) Housing Costs
(Move to larger home necessitated by living in a small two-bedroom home at time of divorce.)
(a) Mortgage payment $110 per month $175 per month
(b) Utilities
(1) Water $96 per year $300 per year
(2) Electricity $420 per year $1,080 per year
(3) Gas $300 per year $600 per year
(7) Transportation (fuel) $ None $260 per year

Petitioner claims that at the time of the divorce in 1978, her costs for providing for the parties’ two daughters were $300 per month. Currently, petitioner believes her costs are between $700 to $1,000 per month. While there may be some question concerning some of the aforementioned amounts, it is sufficient to help show a substantial change in circumstances. (Fedun, 155 Ill. App. 3d at 802, 508 N.E.2d at 534.) After the respondent’s increased ability to pay is shown, the petitioner may establish increased needs of the children based on the fact that the children have grown older and the cost of living has risen. (In re Marriage of Falat (1990), 201 Ill. App. 3d 320, 327, 559 N.E.2d 33, 38.) The trial court may presume that the expenses associated with rearing children increase each year. (Falat, 201 Ill. App. 3d at 327, 559 N.E.2d at 38.) Furthermore, respondent admitted that since 1978, the costs of feeding and clothing his two daughters had increased by approximately 10% to 20%.

The trial court is justified in increasing child support if the needs of the children and the earnings of the supporting parent have increased since the judgment granting child support was entered. (Falat, 201 Ill. App. 3d at 327, 559 N.E.2d at 38.) On the basis of the record before us, petitioner clearly established both increased expenses for her daughters and respondent’s increased ability to support them. Hence, we find an abuse of discretion in the circuit court’s dismissal of petitioner’s petition for modification and find that the record supports an increase in child support in an amount calculated pursuant to section 505(a) of the guidelines. (In re Marriage of Partney (1991), 212 Ill. App. 3d 586, 589, 571 N.E.2d 266, 270.) Even though the guidelines are in the nature of a mandate to the court, an award of the guideline amount which exceeds the reasonable needs of the children can be an abuse of discretion. (Partney, 212 Ill. App. 3d at 590, 571 N.E.2d at 270.) In our opinion, a review of the record demonstrates that petitioner sufficiently proved that there had been an increase in the needs of the children and of the household. We believe that the petitioner demonstrated that the needs of the parties’ minor children were reasonable. We find respondent’s gross income, for the purpose of determining child support, to be at least $23,000 per year. Since inadequate testimony was elicited on respondent’s payments for Federal and State income taxes and FICA tax, we cannot determine respondent’s net income. Thus, we believe this case should be remanded for a determination of respondent’s net income based on our determination that respondent’s gross income is $23,000 per year. The question of whether modification should be retroactive is within the sound discretion of the trial court. (In re Marriage of Ingrassia (1986), 140 Ill. App. 3d 826, 832, 489 N.E.2d 386, 390.) Section 510(a) of the Dissolution Act does not mandate that modification of maintenance and support be retroactive to the date a petition is filed. (Ingrassia, 140 Ill. App. 3d at 832, 489 N.E.2d at 390.) Section 510(a) states:

“[T]he provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification and only upon a showing of substantial change in circumstances.” (Ill. Rev. Stat. 1991, ch. 40, par. 510(a).)

Thus, once a petition has been filed and upon a showing of a substantial change in circumstances, support payments can be modified as of the date the petition was filed. (In re Marriage of Roth (1981), 99 Ill. App. 3d 679, 687, 426 N.E.2d 246, 253.) The decision by the court to make the modification retroactive, however, is purely discretionary. (Roth, 99 Ill. App. 3d at 687, 426 N.E.2d at 253.) For these reasons, we reverse the trial court’s order and remand the case for a determination of respondent’s net income and the entry of an order based on the aforementioned analysis, retroactive to the date of the judgment, March 21, 1991.

Reversed and remanded.

HARRISON and RARICK, JJ., concur.


author: JUSTICE WELCH

text:
    CHARLES E. MILLER, Plaintiff-Appellant, v. ALTON AND SOUTHERN RAILWAY COMPANY, Defendant-Appellee.
    Fifth District
    No. 5—91—0786
    Opinion filed September 14, 1992.

      Jon G. Carlson, of Edwardsville, for appellant.
    Donald J. Dahlmann and Leslie G. Offergeld, both of Walker & Williams, P.C., of Belleville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, Charles Miller, appeals from a summary judgment entered in favor of defendant, Alton & Southern Railway Company, by the circuit court of Madison County, on count II of plaintiff’s complaint alleging violation of the Federal Safety Appliance Act. (45 U.S.C.S. §1 et seq. (Law. Co-Op 1992).) The complaint, filed September 27, 1989, alleges that plaintiff was employed as a conductor for defendant railroad and that while plaintiff was attempting to perform his duties uncoupling railroad cars, a defective pin lifter stuck and caused him to receive injuries to his back.

On October 21, 1991, defendant filed a motion for summary judgment alleging that plaintiff had successfully uncoupled the cars with the pin-lifting mechanism without the necessity of going between the cars and that therefore the Federal Safety Appliance Act did not apply. On that same date, the circuit court of Madison County granted defendant’s motion for summary judgment and, having entered judgment for defendant on count II of plaintiff’s complaint, found no just reason for delaying enforcement or appeal of the judgment. Accordingly, plaintiff brings this appeal.

Section 2 of the Federal Safety Appliance Act provides:

“[I]t shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” (45 U.S.C.S. §2 (Law. Co-Op 1992).)

It is clear that the phrase “without the necessity of men going between the ends of the cars” applies to both the acts of coupling and uncoupling. (Johnson v. Southern Pacific Co. (1904), 196 U.S. 1, 18-19, 49 L. Ed. 363, 370, 25 S. Ct. 158, 162.) The court explained, “[t]he phrase literally covers both coupling and uncoupling, and if read, as it should be, with a comma after the word ‘uncoupled,’ this becomes entirely clear.” 196 U.S. at 18-19, 49 L. Ed. at 370, 25 S. Ct. at 162.

A person injured as a result of a railroad’s violation of the Federal Safety Appliance Act may bring a civil action for damages under the Federal Employer’s Liability Act. (45 U.S.C. §51 et seq. (1988).) While the Federal Employer’s Liability Act (FELA) requires a finding of negligence on the part of the railroad, a violation of the Federal Safety Appliance Act (FSAA) is considered to be negligence per se, or conclusive proof of negligence, on the part of the railroad in an action brought under the FELA. Annot., 16 A.L.R.2d 654 (1951).

The evidence as to how plaintiff incurred his injury is undisputed. Plaintiff testified in his deposition that he pulled a pin lifter in an attempt to uncouple two railroad cars. The pin lifter stuck and threw plaintiff off balance, pulling him in one direction. Plaintiff kept a steady pull on the pin lifter until it finally released. When the pin lifter suddenly released, it threw plaintiff in the other direction, twisting and injuring his back. At no time was it necessary for plaintiff to go between the railroad cars to uncouple them, and plaintiff did successfully uncouple the cars without putting his body between them. The evidence also reveals that the car which plaintiff was attempting to uncouple had been “cornered,” that is, the corner of the car had come into contact with something and was caved in. The housing for the pin lifter, which holds it in the proper position, was bent down. The pin lifter operates to open the knuckle of the coupler mechanism, uncoupling the cars.

In support of its motion for summary judgment, defendant argues that a violation of section 2 of the FSAA occurs only when it is necessary for the employee to go between the railroad cars to effect uncoupling. Defendant also argues that where the employee is not required to go between the cars to effect uncoupling, there is no violation of the FSAA even if the pin lifter or uncoupling mechanism is defective and the employee is injured as a result.

Defendant relies on our opinion in Ellis v. St. Louis Southwestern Ry. Co. (1990), 193 Ill. App. 3d 357, 549 N.E.2d 899, in which we stated:

“Had the facts in the instant case unequivocally indicated that plaintiff was injured while going between two railway cars due to the cars’ failure to automatically couple, or uncouple, without it becoming necessary for an employee to go between the cars, then section 2 of the Act would be applicable. However, in this case, there is no evidence in the record to support a claim that plaintiff was injured while between two cars. *** Therefore, a finding of strict liability pursuant to the Act would have been improper on these facts.” (193 Ill. App. 3d at 363, 549 N.E.2d at 902-03.)

Defendant argues that Ellis stands for the proposition that section 2 of the FSAA simply does not apply where the employee is not required to go between the railroad cars to uncouple them. Thus, defendant argues, it is entitled to summary judgment in the instant case where it is undisputed that plaintiff was not required to go between the railroad cars to effect the uncoupling.

We see the need to clarify our holding in Ellis, for defendant relies on it for a proposition of law which we did not intend. In Ellis, as in the instant case, the plaintiff was injured while attempting to use a pin lifter to uncouple railroad cars. One of the pins did not release on the first pull. Plaintiff jerked on the pin three or four times, but was still unable to disengage the knuckle. Finally, plaintiff jerked hard on the pin, injuring his back.

On plaintiff’s suit for personal injuries, a jury returned a verdict for defendant railroad. One of plaintiff’s arguments on appeal was that the trial court had erred in failing to direct a verdict in favor of plaintiff, or in failing to set aside the jury’s verdict and order a new trial. Plaintiff argued that, pursuant to the FSAA, the railroad was strictly liable for plaintiff’s injuries which resulted from his attempt to correct a malfunctioning coupler. In affirming the trial court, we made the statement relied on by defendant herein. However, by that statement, we did not intend to hold that section 2 of the FSAA applies only when the plaintiff is required to go between railroad cars to uncouple them and thereby is injured.

What we held in Ellis is that where it is disputed whether the plaintiff was between the railroad cars when injured, a directed verdict is improper. Where the plaintiff is required to go between railroad cars in order to successfully uncouple them and is injured while so between the cars, the railroad is strictly liable for that plaintiff’s injuries, whether the uncoupler is defective or not. In such a case, where it is undisputed that the plaintiff was between the cars when injured, a directed verdict, or summary judgment, is proper.

However, where a plaintiff is injured, not while between railroad cars, but while attempting to uncouple them, the railroad is liable only if the coupler was defective at the time plaintiff attempted to use it and that defective condition was a proximate cause of plaintiff’s injuries. Because the questions whether the coupler was defective and whether the defect was a cause of plaintiff’s injuries are for the jury, directed verdict or summary judgment is not proper.

In Ellis, the trial court properly allowed the case to go to the jury on the questions whether plaintiff was, in fact, between the railroad cars when injured and, if not, whether the coupling mechanism was defective, causing plaintiff’s injury. If the jury found that plaintiff was not between the cars at the time he was injured but that the coupling mechanism was defective, causing plaintiff’s injuries, the railroad would be absolutely liable for plaintiff’s injuries. In such a case, the question of negligence, or due care, by the railroad is not at issue. A defective coupling mechanism violates the FSAA and is negligence per se.

Our intended holding in Ellis is consistent with decisions of the United States Supreme Court which have construed section 2 of the FSAA. Those cases hold that, under section 2 of the FSAA, not only must the railroad provide couplers which couple automatically and uncouple without the necessity of men going between the cars, but the couplers must also couple and uncouple safely and adequately, that is, they must not be defective. If an employee is injured as a result of a defective coupler, section 2 of the FSAA is violated regardless of whether the employee was between railroad cars at the time of the injury. Such an interpretation is consistent with the purpose of the FSAA, which is remedial in nature and therefore to be construed liberally. See Bocook v. Louisville & Nashville R.R. Co. (D. Ky. 1946), 67 F. Supp. 154, 159.

In Louisville & Nashville R.R. Co. v. Layton (1917), 243 U.S. 617, 61 L. Ed. 931, 37 S. Ct. 456, the plaintiff was injured when the railroad car on which he was standing for the purpose of releasing the brake was struck by a cut of cars which had failed to couple with the locomotive when impacted for that purpose. Instead of coupling, the force of the impact drove the cut of cars into the car on which plaintiff was standing, throwing him to the track and injuring him. Plaintiff recovered on the basis of a violation of section 2 of the FSAA because the cut of cars had not been equipped with a coupler which coupled automatically on impact. On appeal, the railroad argued that section 2 of the FSAA does not apply because it is intended only for the benefit of employees injured when between cars for the purpose of coupling or uncoupling them. In rejecting the railroad’s argument, the Supreme Court stated:

“While it is undoubtedly true that the immediate occasion for passing the laws requiring automatic couplers was the great number of deaths and injuries caused to employees who were obliged to go between cars to couple and uncouple them, yet these laws as written are by no means confined in their terms to the protection of employees only when so engaged. The language of the acts and the authorities we have cited make it entirely clear that the liability in damages to employees for failure to comply with the law springs from its being made unlawful to use cars not equipped as required, — not from the position the employee may be in, or the work which he may be doing at the moment when he is injured.” (243 U.S. at 621, 61 L. Ed. at 933-34, 37 S. Ct. at 457.)

Thus, it is not necessary that plaintiff be between railroad cars at the time of his injury in order for section 2 of the FSAA to apply.

In Minneapolis & St. Louis R.R. Co. v. Gotschall (1917), 244 U.S. 66, 61 L. Ed. 995, 37 S. Ct. 598, the plaintiff was a brakeman on a train. He was walking along the tops of the train cars toward the locomotive when the train separated because of the opening of a coupler on one of the cars, resulting in an automatic setting of the emergency brakes and a sudden jerk which threw plaintiff off the train. The Supreme Court held that the jury was properly instructed that it could infer negligence from the fact that the coupler failed to perform its function because of the positive duty imposed by the FSAA upon the railroad to furnish safe appliances for the coupling of cars. Thus, negligence could be inferred from the fact that the coupler was defective, even if it otherwise complied with the FSAA in that it coupled automatically upon impact without the necessity of men going between the ends of the cars.

Several cases have explicitly held that once the predicate of malfunctioning equipment has been established, it is irrelevant whether a workman places all or part of his body between the cars. “Indeed, if he is injured because of a defective coupler, he may recover without even having gone between the cars at all.” (Emphasis in original.) United Transportation Union v. Lewis (D.C. Cir. 1983), 711 F.2d 233, 249.

In Southern Pacific Co. v. Mahl (5th Cir. 1969), 406 F.2d 1201, the plaintiff was injured while trying to uncouple two railroad cars by use of a pin lifter. After signalling the engineer for slack, plaintiff attempted to lift the pin, but the uncoupling mechanism failed to release. Plaintiff again called for slack and repeated the process, but again the mechanism failed to release. He signalled the engineer for a third try, when he applied greater force, still without success, and in the process suffered a severe strain to his body. One count of plaintiff’s complaint against the railroad alleged that the uncoupling device was defective in violation of the FSAA. The jury agreed, finding that defendant had violated the FSAA and that the injury had resulted from this violation. The railroad appealed, arguing that a violation of the FSAA predicated upon the failure of a mechanism to uncouple cannot be established without proof of the necessity of men going between the ends of the cars. The railroad pointed out that the failure of a coupling device to uncouple may result from the absence of slack rather than from a defect in the mechanism. The court, pointing out that the broad purpose of the FSAA is to assure the safety of railroad employees by requiring the railroads to furnish safe appliances for the coupling of cars, held:

“ ‘The risk in coupling and uncoupling was the evil sought to be remedied,’ [citation], and that risk was to be obviated by the use of couplers coupling automatically by impact and uncoupling without the necessity of men going between the ends of cars. The duty to furnish the type of couplers specified by the statute is plainly imposed. But we think the statute requires more. As one court has stated:
‘It is not only the duty of the railroad to provide such couplers, but to keep them in such operative conditions that they will always perform their functions. The test of compliance is the operating efficiency of the couplers with which the car is equipped. (Emphasis added.)’
[Citation.] In short, the railroad is obligated to provide safe couplers that function without exposing employees who operate them to the risk of bodily harm. But under the interpretation urged upon us by the railroad, the use of a coupling device, no matter how dangerous it might prove on occasion to the employees charged with its operation, would not constitute a violation of the Act so long as its operation did not require men to go between the cars. This interpretation is unduly narrow.
The failure of a coupler to uncouple due to a defect therein is sufficient to establish liability under the Safety Appliance Act, regardless of whether it was necessary for the employee to go between the ends of the cars. Stated another way: In order to establish that the coupler was defective, proof of the necessity of going between the cars is not required.” (Mahl, 406 F.2d at 1203-04.)

The court went on to state, “If the switchman operates the coupler with due care in the normal manner, the jury can decide that the coupler is defective in violation of the Act by virtue of its failure to release after several attempts.” (406 F.2d at 1205.) The court pointed out that failure of the mechanism to uncouple may be due to the absence of proper slack and not to a defect in the mechanism. Whether the mechanism is defective is a jury question.

We agree with the holding and reasoning of the Mahl court. Where, as in the instant case, the evidence is undisputed that plaintiff was not required to go between the ends of the railroad cars in order to couple them, the questions of whether the uncoupling mechanism was defective and whether that defective condition was a proximate cause of plaintiff’s injuries remain for the jury. Thus, in the instant case, the trial court erred in granting summary judgment in favor of defendant railroad based solely on the fact that plaintiff was not required to go between the ends of the railroad cars to uncouple them.

Accordingly, we reverse the summary judgment entered by the circuit court of Madison County in favor of defendant, Alton & Southern Railway Company, on count II of plaintiff’s complaint and remand this cause for further proceedings not inconsistent with this opinion.

Reversed and remanded.

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


author: JUSTICE WILLIAM A. LEWIS

text:
    THOMAS BENEDICK, Plaintiff-Appellee, v. DEBRA MOHR, Defendant-Appellant.
    Fifth District
    No. 5—91—0516
    Opinion filed August 28, 1992.
    Rehearing denied October 14, 1992.

      John P. Turner, of Belleville, for appellant.

      Thomas Benedick, of O’Fallon, appellee pro se.

   JUSTICE WILLIAM A. LEWIS

delivered the opinion of the court:

Defendant appeals from a summary judgment entered against her for damages in the sum of $26,583.10. Defendant does not contest her liability to plaintiff, her ex-employer, for her theft, but she does contest the damages or the amount of her theft.

Defendant was charged in St. Clair County on March 8, 1990, in a criminal case, People v. Mohr, case No. 90— CF—275, with felony theft of more than $10,000 in violation of section 16— 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 16— 1(a)). The victim in the criminal case and plaintiff in this cause filed this civil suit on April 10, 1990, seeking damages for $26,983.10. Defendant pleaded guilty to the criminal charge on July 16, 1990, and the trial judge set a sentencing hearing for September 6, 1990.

When the proceedings of July 16, 1990, commenced, the trial judge, before he accepted the negotiated plea, was apprised by the assistant State’s Attorney that he needed to set a “restitution hearing to determine the exact amount of restitution owed. It’s a considerable sum and there’s a disagreement how much it is.” Defendant’s counsel informed the judge of the pending civil case and told the judge that the State was going to ask that the specific amount owed by defendant be determined in a restitution hearing. The trial judge ordered a presentence report and stated that such report include “a thorough check on the restitutionary matter.” An order accepting defendant’s plea of guilty, ordering a presentence report and setting a sentencing hearing with restitution to be determined on September 6, 1990, was filed on July 16, 1990.

On September 6, 1990, defendant’s counsel advised the court that the State was going to recommend probation, but that there was a disagreement as to the amount of restitution. Defendant’s counsel further advised the court that the victim had filed a civil suit against the defendant and further stated: “[defendant’s private counsel in the civil suit] is here on the restitution issue. I think this court first has to get past the threshold figure, whether this court is going to order the restitution, have a full hearing on the restitution, or whether this court is going to leave it to the civil case.”

Apparently the parties agreed to shorten the hearing after a brief recess, because defense counsel told the court: “[m]y understanding, there will be an inquiry made of my client as to her ability to make any restitution and then in writing the victims will submit to the court, either through their accountant or on their own, what they claim the loss would be.” The trial judge stated after accepting the presentence report: “Its [sic] my understanding that there’s going to be supplemental testimony and argument submitted by way of writing, however, that you wish to take testimony at this time; is that correct[?]” Defendant then testified as to her assets, and she also was asked about the money she had embezzled. The trial judge asked, after defendant testified as to her assets, liabilities and ability to pay restitution, if there was “[a]ny additional testimony other than the supplementation by writings.” Defense counsel replied, “[n]one from the defendant, your Honor.” The assistant State’s Attorney then recommended probation and full restitution of $31,983.10 minus the $5,000 the defendant had already paid back. The trial judge gave counsel 14 days to submit “further supplementation on these proceedings.”

The assistant State’s Attorney filed a paper entitled “Restitution Evidence For Sentencing” on September 17, 1990, and sent a copy to defendant’s counsel. This paper set out a recapitulation of the moneys defendant stole from plaintiff. On September 20, 1990, three sworn affidavits and exhibits, including numerous photocopies of checks, totaling 65 pages were filed, and these set forth in detail what monies defendant had embezzled from plaintiff. Defendant’s counsel wrote a letter to the trial judge on September 27, 1990, denying defendant stole more than $18,000 and stating, “[t]he restitution evidence submitted by Assistant State’s Attorney Pat Curran is strongly disputed.” Defense counsel did not submit any counteraffidavits.

The trial court entered an order on October 26, 1990, finding that the restitution should be $31,876.17 less $5,000 that the defendant had already paid, leaving a balance of $26,876.17. On December 6, 1990, after the 30 days to appeal expired in the criminal case, plaintiff filed a motion for summary judgment in this case in the amount of $26,876.17. The motion for summary judgment was heard and granted (although the trial judge somehow came up with the figure of $26,583.10) “based upon Defendant’s guilty plea in the felony case and the finding of the Court for restitution after a restitution hearing was held.” Defendant’s post-trial motion to reconsider was denied.

Defendant raises two issues on appeal. The first is whether the trial court erred in applying the doctrine of collateral estoppel or issue preclusion against defendant by holding that the finding and judgment as to restitution in the criminal case precluded defendant from challenging it in the subsequent civil suit. The second issue, which relates to the first issue, is whether the trial judge erred in granting a summary judgment against defendant as to the damages suffered by plaintiff.

We are treating this case as one involving a question of the doctrine of collateral estoppel as opposed to the doctrine of res judicata, since both parties argued the issue of collateral estoppel and avoided the possibility that the doctrine of res judicata may have been the correct applicable doctrine.

“The doctrine of res judicata provides that ‘a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.’ (Emphasis added.) [Citation.] ***

The doctrine of collateral estoppel applies when a party or someone in privity with a party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit by a court of competent jurisdiction.” (Emphasis in original.) (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251-52, 461 N.E.2d 959, 962.)

The policy of both doctrines is “to promote judicial economy and prevent repetitive litigation.” Stratemeyer v. West (1985), 136 Ill. App. 3d 1095, 1097, 484 N.E.2d 399, 400.

Defendant’s counsel pieced together requirements from several cases to arrive at the necessity of six factors being present before the doctrine of issue preclusion can apply. We adopt these factors with some modification, namely:

(1) The parties or their privies must have been involved in both cases;
(2) Some controlling fact or material question must be identical in both cases;
(3) The party sought to be precluded must have had a full and fair opportunity to litigate the issue in the first cause;
(4) The controlling issue or material fact must have been actually litigated or decided in the prior action (we use the words “or decided” guardedly to cover some situations where a party is held to have waived his right to litigate by his default and a judgment is entered) (see Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 461 N.E.2d 959);
(5) An injustice must not be done to the party estopped under the circumstances of the later case;
(6) The prior action must have been litigated in a court of competent jurisdiction (see People v. Moore (1990), 138 Ill. 2d 162, 561 N.E.2d 648 (where the supreme court declined to give preclusive effect to a finding of no probable cause in the statutory summary suspension hearing in the subsequent DUI case as it would thwart the legislative purpose of providing a swift administrative type of hearing)); and
(7) The prior judgment must be final.

See Stone v. Salvage & Bridges Agency, Inc. (1990), 206 Ill. App. 3d 615, 565 N.E.2d 318; Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 461 N.E.2d 959; Buttitta v. Newell (1988), 176 Ill. App. 3d 880, 531 N.E.2d 957; Stratemeyer v. West (1985), 136 Ill. App. 3d 1095, 484 N.E.2d 399.

Defendant admits that factors (1), (6) and (7) are present but contends that factors (2), (3), (4) and (5) have not been met.

As to factor (2), defendant argues that restitution was not a material issue in the criminal case. It is true that the exact amount of money that was embezzled was not a material issue or an element of the offense charged, as long as it was shown that more than $10,000 was stolen. Ill. Rev. Stat. 1989, ch. 38, par. 16—1.

Defendant cites Appley v. West (7th Cir. 1987), 832 F.2d 1021, as being “on all fours” with this case. In Appley, the plaintiff claimed that defendant had embezzled $975,000 from her and her mother. Defendant admitted to having embezzled $495,000, but he denied taking $975,000. The parties agreed that the government could submit its version of the offense. The trial judge ordered $975,000 in restitution based on the government’s version of the offense. In the subsequent civil suit the trial judge entered a summary judgment in favor of plaintiff for triple damages of $2,871,000 for a civil violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1962(b), (c), 1964(c) (1988). The United States Court of Appeals, Seventh Circuit, held that the summary judgment based on the collateral estoppel would work an injustice on defendant, because “there was little incentive to litigate the issue aggressively at the sentencing hearing” and “there was no litigation of the amount of restitution.” Appley, 832 F.2d at 1026.

If the Appley court had stopped with the aforesaid reasons, there would not be any disagreement with its ruling, although it could be strongly argued that the defendant should have been estopped since he chose not to contest the amount of restitution after being given the opportunity to do so. The court, however, went on to say that one of its reasons for refusing to apply the doctrine of collateral estoppel was that “the amount of restitution was not a material fact of the indictment on which the guilty plea was based.” (832 F.2d at 1026.) The court neither raised nor discussed the possibility of collateral estoppel if there had been a sentencing hearing in which the issue of restitution had been aggressively litigated. We have no problem with the holding that the plea of guilty to an indictment charging embezzlement of $575,000 was not an admission of embezzlement of $957,000 and in that sense the amount of restitution was not a material fact. If, however, the court meant that the only material issues in a criminal prosecution are the allegations in the indictment, information or complaint, then we respectfully disagree with the Appley court.

A criminal proceeding does not end with the determination of guilt. The Unified Code of Corrections provides for a sentencing hearing in which other issues arise that are material to the punishment that is to be imposed. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—4—1.) There is also a specific section that pertains to the issue of restitution. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—6.) If the Appley ruling were such that collateral estoppel or issue preclusion were limited solely to the allegations in the indictment, information or complaint, then the doctrine’s “laudable purpose of preventing the repeated litigation of the same factual issue” would be severely limited. People v. Hooker (1981), 96 Ill. App. 3d 127, 130, 421 N.E.2d 301, 303-04.

For collateral estoppel to apply, the material issue or controlling fact that is identical in both cases is not limited to the main issue or issues of guilt or liability. (See People v. Hooker (1981), 96 Ill. App. 3d 127, 421 N.E.2d 301 (for collateral estoppel in a motion to suppress identification); People v. Williams (1975), 59 Ill. 2d 557, 322 N.E.2d 461 (for collateral estoppel in a motion to suppress statements).) It is not necessary that the material issues be contained in the issue instructions of the Illinois Pattern Jury Instructions. The material issue must, however, be of such importance that it goes to the merits and forms a substantive part of the matter that is being litigated in a hearing before the court. “To operate as an estoppel by verdict it is absolutely necessary that there shall have been a finding of a specific fact in the former judgment or record that is material and controlling in that case and also material and controlling in the pending case.” (Hoffman v. Hoffman (1928), 330 Ill. 413, 418, 161 N.E. 723, 726.) It should go without saying that the amount of restitution goes to the merits and forms a substantive part of the issue to be determined in a restitution hearing under the Unified Code of Corrections. The amount of damages suffered by the victim in the present case includes the same issue of monetary loss that was determined in the restitution hearing. The court is being asked in both cases to specifically find how much defendant stole from her employer. This is the material issue that is identical and controlling in both cases, and any finding in the present case different to the finding in the restitution case would result in inconsistent judgments.

Defendant next argues that section 5—5—6(j) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—6(j)), which states, “[njothing contained in this Section shall preclude the right of any party to proceed in a civil action to recover for any damages incurred due to the criminal misconduct of the defendant,” causes one to conclude “that the question of restitution is never material in a criminal case.” We do not see how section 5—5—6 makes restitution immaterial in a criminal case. The clear and plain meaning of the statute is to protect the victim, not the wrongdoer. There are many reasons why the legislature protected the victim with this clause. Suffice it to say that the victim’s interest may not be fully protected or represented in the restitution hearing, since the victim is not a party to the prosecution, and the victim in many cases could not recover the full amount of his damages, since the victim cannot recover for pain and suffering, mental distress, punitive damages, etc. We cannot discern any indication that the legislature desired to protect the criminal under section 5—5—6. If the legislature intended to do so, then it would have legislated something to the effect: “nothing contained in this Section shall preclude the right of a defendant to any defense in a civil action brought by any victim.” The silence of the legislature leads us to believe otherwise.

Defendant next contends that she did not have a fair opportunity to litigate nor did she in fact litigate the propriety of restitution and the amount of restitution. We disagree. The record is replete with notices of the setting of the restitution hearing. In fact, defendant even had her private civil attorney present at the restitution hearing. The victim-plaintiff was present. Defendant even testified and admitted stealing at least $11,000. Defendant agreed through her counsel to allow the State to present its evidence by means of affidavits and exhibits rather than by testimony. Defendant made no effort to present counteraffidavits to the victim’s affidavits or to request the trial court set another restitution hearing so that she could rebut the State’s evidence. Finally, defendant did not file a motion to reconsider the amount of restitution, nor did she appeal the judgment.

The method used to litigate the propriety and the amount of restitution was not in strict compliance with the rules of evidence, but defendant only has herself to blame for agreeing to the supplementation of the record by affidavits and exhibits from plaintiff’s witnesses. Many cases and issues are litigated by means of affidavits, depositions, stipulations as to facts, and admissions in the pleadings. There is nothing inherently unjust, and there is no deprivation of constitutional rights, in litigating issues by these means as long as the parties freely and voluntarily agree to such method of litigation.

We see no reason to force plaintiff to go through the expense of a trial so that defendant can attempt to obtain an inconsistent judgment from another trier of fact or to escape her obligation to reimburse plaintiff fully for the money she has stolen. Defendant has had her day in court and she is precluded from relitigating the same factual issue over and over. We, therefore, affirm the trial court.

Affirmed.

WELCH and HARRISON, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES MICHAELS, Defendant-Appellant.
    Third District
    No. 3—91—0048
    Opinion filed March 5, 1992.
    Rehearing denied September 30, 1992.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Nancy Rink Carter, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

A jury found the defendant, James Michaels, guilty of home invasion, armed robbery, and aggravated battery (Ill. Rev. Stat. 1989, ch. 38, pars. 12—ll(a)(2), 18—2(a), 12—4(b)(l)). The trial court entered a judgment of conviction on the aggravated battery charge, but found that it merged into the home invasion charge. The court then sentenced Michaels to two concurrent 15-year terms of imprisonment for home invasion and armed robbery. Michaels appeals.

The record reveals that on June 8, 1990, two men wearing black clothing and masks broke into the home of Chesla and Tina Hill. Awakened by the scream of his wife, Chesla saw one of the men standing near him holding a knife. Chesla began struggling with that man and was cut several times. Although the other man struck Chesla with a bamboo stick, Chesla continued to struggle, and eventually the two intruders fled.

After the two men fled, Tina discovered $90 was missing from her purse. The police were notified and Tina and Chesla were asked to view a lineup that included the defendant. Tina was unable to identify the defendant. However, because the defendant’s mask had moved during the struggle, Chesla was able to identify him.

Paul Richardson testified that the defendant admitted to him that he had been involved in the robbery. Richardson indicated that he had agreed to testify against the defendant in exchange for the State dropping drug charges pending against him.

Christopher Williams also stated that the defendant admitted committing the offense. At the time of the trial, Williams was serving a sentence for armed robbery and had agreed to testify in return for a reduced sentence on another charge of armed robbery.

The defense called Brian Fink, a deputy sheriff at the Will County Adult Detention Facility, who testified that he had a public discussion with the defendant about the details of the case. He indicated that the discussion could have been overheard by other inmates.

Both the defendant’s mother, Sharon Michaels, and his girl friend, Cary Marcinko, testified that the defendant had been home at the time the crime was being committed. During cross-examination, Sharon and Cary were both asked why they waited until the week of the trial to inform the sheriff’s department that they were with the defendant at the time of the crime. Sharon responded that nobody had ever asked her, while Cary responded that no one talked to her and she did not know what to do.

Following deliberations, the jury found the defendant guilty of home invasion, armed robbery, and aggravated battery. However, the trial court ruled that, as a matter of law, it would be improper to convict the defendant of both aggravated battery and home invasion because both charges involved the same victims, the same incident, and the same course of events. The trial court entered a judgment of conviction on the aggravated battery charge, but found that it merged into home invasion. The trial court then sentenced the defendant to two concurrent 15-year terms of imprisonment for home invasion and armed robbery.

On appeal, the defendant initially argues that he was denied a fair trial because during closing arguments the prosecutor told the jury that the alibi was recently concocted and that the defense witnesses were lying. The defendant states that the prosecutor knew that the reason the State had not been informed of the alibi defense earlier was because of an administrative mix-up in the public defender’s office, not because it had been recently concocted. Therefore, the defendant contends that it was improper for the prosecutor to inform the jury in closing arguments that the alibi defense had never been mentioned until the week of the trial.

It is improper for a prosecutor to argue an inference from the evidence when the prosecutor knows that the inference is false. (People v. Cole (1980), 80 Ill. App. 3d 1105, 400 N.E.2d 931.) However, it is proper for the prosecutor to comment on the witnesses’ credibility if witness credibility is an issue and the prosecutor’s comments are based on the evidence. People v. Mays (1982), 91 Ill. 2d 251, 437 N.E.2d 633.

In the instant case, the State filed a pretrial motion to preclude the alibi defense. At the hearing on the motion, defense counsel disclosed to the State that the defendant had informed the public defender’s office of a potential alibi defense sometime before notice to the State was actually filed by the public defender’s office. Although the record does not disclose the actual date upon which the defendant informed the public defender’s office of his alibi, it appears to have been weeks before the trial. When asked at the hearing why notice of the alibi defense was not disclosed earlier, defense counsel admitted that he had not thought it was necessary until he learned that the State had a stronger case than he had anticipated. Additionally, some administrative inadvertence at the public defender’s office had prevented the notice from being properly filed. Because the failure to timely file the notice did not appear to be the fault of the defendant, the trial court allowed the alibi defense to be presented.

As noted above, Sharon Michaels and Cary Marcinko then testified at trial that the defendant was with them when the crime was being committed. In his closing arguments, the prosecutor stated:

“Ladies and gentlemen, is it consistent if you knew that somebody did not commit an offense and you knew you were with them, that you would withhold mentioning that to anybody, that you would not go down to the Sheriff’s Office, to the local police agency, and tell them that James Michaels didn’t commit this, I was with him? It didn’t happen. They never went to a police agency and they want you to believe that James Michaels was home. They waited [until] October 23, when Investigator Morrison sat them down at the Laraway Station and talked to them, to tell them about that.
Now, ladies and gentlemen, that just does not make sense. Now, [defense counsel] has talked about contrived stories and fabrications. Ladies and gentlemen, it is a fabrication, I submit to you that it is a fabrication, because it is not consistent. It is not logical.
What would be done if you had that information, if somebody had that information, ladies and gentlemen? They would go forward and they would submit it, and they would try to find the truth. They wouldn’t hold it back.
Again, they do have an interest in this. There is a bias here. They know this man. They live with him. They love him. It’s his mother. It’s his girlfriend. The father of her children.
Ladies and gentlemen, the evidence here shows that James Michaels is guilty. *** And now there is a fabricated alibi defense here that he wasn’t there. That was never mentioned until the 23rd of October, ladies and gentlemen. That wasn’t too long ago. And this offense was committed in June, June 18. There is a lot of time there, ladies and gentlemen. And all of a sudden it appears.
Nobody knows about it until the very end. Ladies and gentlemen, this man is guilty, and I ask you to find him guilty of these offenses. Thank you.”

It is apparent when the prosecutor’s remarks are read in context that he was attacking the credibility of Sharon Michaels and Cary Marcinko. The State is not precluded from inquiring into the credibility of defense witnesses merely because a defendant has previously informed the public defender of a potential alibi defense. Here, the State properly questioned the alibi witnesses’ credibility based upon the length of time that had passed before they came forward. The State’s comments were all based on evidence presented at trial, in that both witnesses admitted that they did not inform anyone of the alibi until just prior to the trial date. Accordingly, we find that the prosecutor’s comments were proper.

The defendant next argues that this cause must be remanded for additional hearings because the trial court failed to make even a preliminary inquiry into the defendant’s pro se post-trial motion which alleged ineffective assistance of counsel.

When a defendant during post-trial proceedings asserts that his attorney afforded him ineffective representation at trial, no new counsel should be appointed to represent the defendant if the trial judge conducts a preliminary investigation and determines the defendant’s allegations to be spurious or pertaining only to trial tactics. People v. Nitz (1991), 143 Ill. 2d 82, 572 N.E.2d 895.

In the instant case, the record shows that the trial court examined the defendant’s allegations and found them to be either spurious or pertaining only to trial tactics. The court made specific findings in rejecting the defendant’s contentions. Our review of the record indicates that the trial court’s conclusions were justified. Accordingly, we find it unnecessary to remand the cause for additional hearings on the defendant’s post-trial motion.

The final issue the defendant raises is that the 15-year term of imprisonment imposed upon him is excessive and grossly disparate to the three-year sentence imposed upon codefendant Frank Van Dyke, who pled guilty to robbery.

We begin by noting that a trial judge’s determination of a proper sentence will not be disturbed absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Further, when a codefendant receives a lighter sentence pursuant to a plea agreement, that sentence is no basis for a comparison. (People v. King (1988), 165 Ill. App. 3d 464, 518 N.E.2d 1309.) Additionally, we note that Van Dyke did not have the extensive criminal record that the defendant has. Finally, the defendant was identified as the perpetrator who used a knife to cut Mr. Hill. Accordingly, we find absolutely no merit to the defendant’s contention that his sentencing was improper.

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

Affirmed.

HAASE and SLATER, JJ., concur.


author: JUSTICE CAMPBELL

text:
    MICHAEL GEEVER et al., Plaintiffs-Appellants, v. O’SHEA AND SONS BUILDERS, INC., Defendant-Appellee (Steeple Hill Condominium Association et al., Defendants).
    First District (1st Division)
    No. 1—91—0021
    Opinion filed August 3, 1992.
    Donald A. Kurasch, Ltd., of Chicago (Donald A. Kurasch and Jessica B. Tucker, of counsel), for appellants.
    Robert Schey & Associates, of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs Michael Geever, Scott Swensen and James Sachs appeal an order of the circuit court of Cook County granting summary judgment in favor of defendant O’Shea and Sons Builders, Inc. (O’Shea and Sons), regarding count III of plaintiffs’ second amended complaint in a personal injury action. For the reasons which follow, we affirm.

The record on appeal indicates the following facts. Plaintiffs initially filed their personal injury suit against defendants on May 13, 1987. The trial court permitted plaintiffs to file a second amended complaint on March 9, 1990. Count III of the second amended complaint alleged that on January 17, 1987, defendants Steeple Hill Condominium Association (SHCA), Walter J. Kassuba, Kassuba Development Corp., Mark Holecek and unknown owners owned, operated and controlled a residential building in the City of Hoffman Estates, consisting of apartments leased or rented to various tenants. Plaintiff Geever resided in unit 313, which was on the third floor of this building; Geever rented this unit from defendant Holecek. On January 17, 1987, plaintiffs Swensen and Sachs were Geever’s guests on the premises. At 1:30 a.m., the railing on the balcony of unit 313 broke and gave way; plaintiffs fell to the ground and were injured.

Count III alleges that both prior and subsequent to January 17, 1987, defendant O’Shea and Sons provided carpentry repair work for the building at issue. The complaint alleges that O’Shea and Sons negligently: (1) permitted the balcony with metal railing to assume and remain in a dangerous, decayed, rotten and unsafe condition; (2) failed to make this condition known to plaintiffs; (3) failed to repair the balcony and railing; (4) failed to inspect the balcony and railing when repairs to other balconies on the premises were made; and (5) otherwise failed to inspect or repair said balcony. O’Shea and Sons’ answer denied that it was negligent with respect to the balcony at issue and denied having performed carpentry work on the balcony before January 17, 1987.

A number of discovery depositions were taken by the parties. Charles G. Corley, the president of the SHCA, stated that in December 1985, the condominium board of managers discussed an incident where a balcony broke away from a building in an apartment complex in the Village of Elk Grove. The board of managers, noting the age of the buildings in the SHCA, agreed that a structural engineer should be retained to inspect the balconies in their complex. The board of managers retained the firm of A.G. Freiman and Associates as structural engineers. The Board of Managers also retained O’Shea and Sons, who had prior experience doing carpentry work for the complex.

Corley stated that he felt that John O’Shea should accompany John Miller, an employee of A.G. Freiman, during the inspection of each balcony. The balconies were inspected in March and April of 1986. According to Corley, there were more than 300 balconies inspected.

A letter from A.G. Freiman to the SHCA dated April 22, 1986, indicates that John Miller concluded that some of the balconies were very dangerous due to rotting wood in the balconies and supporting joists. Miller recommended that these balconies be roped off from use pending repair. Miller also opined in the letter that, based on the inspection, all of the balconies were suspect.

Peggy Durkin, the property manager for SHCA, stated in her deposition that A.G. Freiman determined that the “worst” balconies— those with rotting wood in the balconies and floorboards — should be repaired first. The individual notes on each balcony were taken by John O’Shea. Letters were sent to each unit owner stating that each owner had the obligation to repair his or her balcony and that the work could be performed by O’Shea and Sons or by any other qualified carpenter.

John Hunt, the maintenance supervisor for the SHCA, indicated that O’Shea and Sons was retained to inspect the balconies and that he accompanied John O’Shea during these inspections. O’Shea made notes on each balcony under guidelines provided by A.G. Freiman. Hunt stated that O’Shea had him get in touch with A.G. Freiman regarding balconies where O’Shea did not know how to proceed. After the balcony inspections were completed, A.G. Freiman was called out to look at 55 balconies that “looked serious.” According to Hunt, the balcony for unit 313 was not among these 55 balconies. As a result of this later inspection, it was determined that 25 balconies needed immediate attention; repairs were completed on these balconies as soon as possible. After the first 25 balconies, O’Shea and Sons was to make the remaining repairs building by building. Hunt stated that in December 1986, the weather became cold, with snow and freezing rain, to the point where it became unsafe to work on ladders and balconies without railings. According to Hunt, O’Shea and Sons decided that the balcony repairs should be curtailed until the following spring; the board of managers concurred.

John Michael O’Shea, president of O’Shea and Sons, stated that he inspected over 300 balconies at the Steeple Hill Condominiums and had no specific recollection regarding the balcony for unit 313. O’Shea stated that on each balcony, he checked the railings, deck, floorboards, joists and dividers. O’Shea would place his ladder against the building or deck and “physically yank” on the railing before climbing onto each balcony. O’Shea stated that his notes on unit 313 indicated that the deck required replacement of three deck boards, joist and divider repairs and rebolting of the wrought-iron railing. As to the railing, O’Shea stated that some of the railings were nailed or screwed. The proper way to attach such a railing is with lags, which have hexagonal heads that are ratcheted into the exterior wood. According to O’Shea, if a railing had been loose, it would have been noted, but there was no such indication in his notes on unit 313.

O’Shea further stated that the balcony for unit 313 was not one of those closed off from use pending repair. The balconies that were repaired first were on a list prepared by SHCA, based on A.G. Freiman’s recommendations as to which balconies were in the worst condition.

At O’Shea’s deposition, counsel referred to two contracts: the first concerned 1986, the second concerned 1987. Counsel asked O’Shea about a term in the 1987 contract which purportedly stated “Work to commence no later than April 1st, 1987 and completed no later than November 1st of 1987.” O’Shea stated that these were projected dates and that not all repairs were to be completed by November 1, 1987. Rather, O’Shea and Sons was to complete those repairs which could be completed by November 1, 1987, within that time frame. According to O’Shea, work continued after November 1, 1987.

O’Shea stated that he did not work on unit 313 until January 19, 1987, at which time he replaced the railing. Other repairs on the unit 313 balcony were completed in October 1987. O’Shea did not know what caused the railing to break loose. He did not believe that the force of a 150-pound person leaning on the railing would cause it to break loose.

On July 10, 1990, O’Shea and Sons filed a motion for summary judgment. On November 20, 1990, the trial court granted the motion and found no reason for delay in the enforcement or appeal of its order. Plaintiffs timely filed a notice of appeal to this court.

Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c); Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, 484, 507 N.E.2d 19, 21.) In order to withstand a motion for summary judgment, the nonmoving party must come forward with evidentiary material that establishes a genuine issue of fact. (Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, 545 N.E.2d 184.) Absent an abuse of discretion by the trial court, summary judgment will not be reversed. Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 475 N.E.2d 549.

On appeal, plaintiffs do not point to any evidentiary material establishing a genuine issue of fact. Plaintiffs argue that O’Shea’s statement that the railing for unit 313 was not loose when inspected is “nonsensical[,] given the fact that O’Shea admitted that unit 313 was scheduled for repairs.” The record indicates that unit 313 was scheduled for various repairs. Indeed, the record indicates that the railing at issue was scheduled to be reattached to the building with lags. However, the record also indicates that O’Shea stated that if the railing had been loose, it would have been noted at the time of inspection and no such notation was made. Thus, the fact that the railing was to be reattached with lags does not require the inference that the railing was loose when inspected. Moreover, plaintiffs have failed to point to any evidence in the record indicating that the railing became loose at a later date.

Plaintiffs next argue:

“Given the fact that the structural engineer found all balconies to be suspect, given the fact that O’Shea found repairs necessary, including replacing the railing attachments, and given the fact that the balcony was not repaired prior to the occurrence, one could easily infer that O’Shea had a duty to reinspect the balcony for further decay and rot.”

Plaintiffs contend that whether a breach of this duty occurred is a question of fact.

O’Shea and Sons undertook the inspection and repair of the SHCA balconies as an independent contractor. In Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368, our supreme court stated:

“An independent contractor owes no duty to third persons to judge the plans, specifications or instructions which he has merely contracted to follow. If the contractor carefully carries out the specifications provided him, he is justified in relying upon the adequacy of the specifications unless they are so obviously dangerous that no competent contractor would follow them.” (Hunt, 74 Ill. 2d at 209, 384 N.E.2d at 371.)

In this case, the Corley deposition indicates that O’Shea acted under the instruction of SHCA and the guidelines of A.G. Freiman. O’Shea’s deposition indicates that he was told by SHCA or someone else to note balconies attached with nails or screws so that the balconies could be reattached with lags. Plaintiffs have failed to point to any evidence in the record that the instructions and guidelines required rein-spection. Nor have plaintiffs pointed to any evidence in the record that any failure to include reinspection was so obviously dangerous that no competent contractor would have followed the instructions or guidelines. Thus, this court declines to “infer” a duty to reinspect the balcony for unit 313.

Moreover, plaintiffs have failed to point to any of the contracts involved in this case to establish that defendant was required to make repairs to unit 313 prior to the occurrence at issue in this case.

Plaintiffs argue that the fact that the unit 313 balcony was not one of the 25 balconies roped off from use pending repair does not require the conclusion that the balcony was structurally sound. However, plaintiffs have failed to point to evidence in the record indicating that the railing was unsound pending reattachment with lags.

Finally, as in Stines v. Otis Elevator Co. (1982), 104 Ill. App. 3d 608, 432 N.E.2d 1298, plaintiffs have failed to point to evidence that defendant’s inspection was negligently performed or if it was that it was causally related to the occurrence at issue. (See Stines, 104 Ill. App. 3d at 611, 432 N.E.2d at 1300.) This court determined that summary judgment was premature in Stines, but the defendant in Stines performed inspections or maintenance on dates that had not been determined as of the hearing on summary judgment. Indeed, in Stines, this court noted that the defendant could again move for summary judgment following discovery regarding the undetermined inspection dates. (See Stines, 104 Ill. App. 3d at 611, 432 N.E.2d at 1300.) In this case, there is no contention that plaintiffs have not had adequate discovery regarding this defendant. Consequently, the entry of summary judgment was not premature.

For all of the aforementioned reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

O’CONNOR and MANNING, JJ., concur.

      Defendants Steeple Hill Condominium Association, Walter J. Kassuba, Kassuba Development Corp., North American Construction Corp., S & N Construction Corp., Mark Holecek, unknown owners, unknown others, American Marketing Company, Inc., Carol Bycowicz and A.G. Freiman & Associates are not parties to this appeal.