author: JUSTICE DiVITO

text:
    ALFRED SCHOON, Plaintiff-Appellee, v. JOHN HILL et al., Defendants (John Hill, Third-Party Plaintiff; Drekmeier Drug Company, Third-Party Defendant-Appellant).
    First District (2nd Division)
    No. 1—89—0560
    Opinion filed December 4, 1990.
    — Rehearing denied February 5, 1991—
    Modified opinion filed February 13, 1991.

      Francis J. Leyhane III and Mark E. Condon, both of Condon, Cook & Roche, of Chicago, for appellant.
    Barth H. Goldberg, of Goldberg & Goldberg, and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky and Linda A. Bryce-land, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Alfred Schoon filed suit against defendant John Hill, M.D., and defendant Upjohn Company (Upjohn) alleging medical malpractice, negligence, and products liability. Four years after the complaint was filed, Dr. Hill brought a third-party action against Drekmeier Drug Company (Drekmeier), a Wisconsin pharmacy. Within 90 days after the last day allowed for the filing of its answer, Drekmeier filed a motion to dismiss or transfer based on the doctrine of forum non conveniens. The circuit court denied the motion, and from this order Drekmeier appeals, raising the issue whether the circuit court abused its discretion in denying its motion to dismiss or transfer pursuant to the doctrine of forum non conveniens.

From May 2, 1962, until December 11, 1982, Dr. Hill, a general practitioner, was Schoon’s doctor. Sometime during this period, Dr. Hill diagnosed Schoon as suffering from rheumatoid arthritis and prescribed Medrol, a steroid drug manufactured by Upjohn. Schoon used the drug Medrol as prescribed by Dr. Hill.

In 1984, Schoon filed a three-count complaint against Dr. Hill and Upjohn alleging that Dr. Hill had negligently prescribed and administered Medrol, that Upjohn was negligent in the manufacture of Medrol, and that Medrol was an unreasonably dangerous drug.

On July 15, 1988, Dr. Hill filed a third-party complaint against Drekmeier, a Beloit, Wisconsin, pharmacy. Dr. Hill alleged that Drekmeier had sold Medrol to Schoon from July 1, 1972, through December 28, 1982. He further alleged that Drekmeier had dispensed Medrol to Schoon after the prescription had run out, had failed to monitor the administration of the drug, and had failed to warn Schoon of the risks associated with the use of the drug.

On November 1, 1988, Drekmeier filed a motion to dismiss or transfer the case pursuant to the doctrine of forum non conveniens. Drekmeier sought to have the matter transferred from Cook County to either Rock County, Wisconsin, where Drekmeier’s place of business was located, or to McHenry County, Illinois, where Dr. Hill resided and practiced. In support of its motion, Drekmeier offered Schoon’s answers to Dr. Hill’s and Upjohn’s interrogatories.

In his answers to the interrogatories, Schoon stated that he resides at 10650 Pearl Street, in Roscoe, Illinois, which is in Winnebago County. Previously, Schoon resided in Caledonia, Illinois, which is in Boone County. Schoon also stated that, in addition to himself and his wife, Dr. Austad of the Monroe Clinic in Monroe, Wisconsin; Dr. Andrea Dlesk of Marshfield, Wisconsin; and Dr. Kryda of Marshfield, Wisconsin, were witnesses to the alleged occurrence giving rise to this litigation. Moreover, Schoon listed a number of persons, many of them relatives, who had knowledge of the issues of liability or damages. Included in this list was Dr. Druchery of the Beloit Clinic in Beloit, Wisconsin.

In addition, Schoon stated that he had been treated for the injuries alleged in the complaint at St. Clair Hospital in Monroe, Wisconsin; at the Monroe Clinic in Monroe, Wisconsin; and at the Marshfield Clinic in Marshfield, Wisconsin. The attending physicians at these hospitals were Dr. Austad, Dr. Dlesk, and Dr. Kryda, all Wisconsin physicians.

On January 31, 1989, a hearing was held to consider Drekmeier’s forum non conveniens motion. Drekmeier argued at the hearing that because of the extensive contacts with Wisconsin and counties outside of Cook, venue would be proper elsewhere. Moreover, Drekmeier argued that the only contact which the case had to Cook County was that Schoon’s attorney had offices in Cook. In response to Drekmeier’s argument, the circuit court asked, “What about the fact that this Court’s been working on the case since 1984?” Drekmeier responded that it was only recently brought into the case and consequently it was not Drekmeier’s responsibility that the case had been pending for so long in Cook County. Drekmeier argued that the amount of time the case had been pending prior to its entry into the case should not be taken into consideration when ruling upon a forum non conveniens motion.

The circuit court, however, denied the motion to transfer pursuant to forum non conveniens, stating:

“I think it’s unfair for the Plaintiff to have been here and have been sitting for the past four years and now at this late date — I realize that I have to strike a balance between the Plaintiff, who had been here for four years, and you, who has just come into the case. But I think judicial economy is suggested.”

From the order denying Drekmeier’s motion to dismiss or transfer, we allowed Drekmeier’s petition for leave to appeal (107 Ill. 2d R. 306(a)(l)(ii)).

Drekemeier contends that the circuit court abused its discretion in denying the motion to dismiss or transfer pursuant to forum non conveniens. Specifically, Drekmeier contends that the court improperly considered the length of time the case had been pending in Cook County before Drekmeier was joined. According to Drekmeier, the court’s consideration of the time factor foreclosed, before Drekmeier was even joined as a party, Drekmeier’s right under Elinois Supreme Court Rule 187 (107 Ill. 2d R. 187) to have the case heard in a convenient forum.

Although broad discretion is vested in the circuit court to determine whether dismissal on the grounds of forum non conveniens is warranted, its decision will be reversed on appeal if its discretion was abused. (Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 497 N.E.2d 745.) The proper inquiry analyzes the relative convenience of the forum, and in this regard certain factors, involving the private interests of the litigants as well as the public interest, must be balanced by the circuit court in ruling on a forum non conveniens motion. Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839.

Factors relating to the private interests of the litigants include the “relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to.the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508, 91 L. Ed. 1055, 1062, 67 S. Ct. 839, 843.

Public interest factors affecting the administration of the courts include the difficulties flowing from court congestion; a local interest in having localized controversies decided at home; and the unfairness of burdening citizens in an unrelated forum with jury duty. Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 509, 91 L. Ed. 1055, 1063, 67 S. Ct. 839, 843. See also Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 El. 2d 112, 497 N.E.2d 745; Boston v. Rockford Memorial Hospital (1986), 140 Ill. App. 3d 969, 489 N.E.2d 429; Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 444 N.E.2d 157; Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 427 N.E.2d 111.

A further consideration under the forum non conveniens doctrine is deference to plaintiff’s choice of forum. Although a plaintiff’s choice of forum is generally accorded great weight and will not be disturbed unless the balance of factors strongly favors defendant, a plaintiff’s choice is entitled to less deference when plaintiff chooses a foreign forum. Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 554 N.E.2d 209; McClain v. Illinois Central Gulf R.R. Co. (1988), 121 Ill. 2d 278, 530 N.E.2d 368.

Drekmeier argues that the time a case has been pending prior to it being joined as a party is not one of the factors which a court may take into consideration. Drekmeier contends that its motion to dismiss or transfer was filed on November 1, 1988, less than 90 days after Drekmeier was served, well within the time period permitted under Rule 187. Drekmeier maintains that although it filed a timely motion to transfer, the court, in considering the time the case had been pending in Cook County, incorrectly denied forum non conveniens relief to it.

Rule 187 provides that a motion to transfer an action under the doctrine of forum non conveniens must be filed “not later than 90 days after the last day allowed for the filing of that party’s answer.” The committee comments to Rule 187 make abundantly clear that the reference to “that party’s answer” is intentional:

“Paragraph (a) refers to ‘that party’s answer’ to insure that a later-joined defendant is not foreclosed from filing & forum non conveniens motion by the failure of another defendant to do so in a timely manner.” (Emphasis in original.) (Ill. Ann. Stat., ch. 110A, par. 187, Committee Comments, at 70 (Smith-Hurd Supp. 1990).)

Thus, the period of time which a case has been pending is irrelevant if the later-joined party’s motion is brought in a timely fashion. Otherwise, a later-joined party will always be foreclosed from raising forum non conveniens grounds for transfer when the case has been pending ■ for a sufficiently long time prior to the joinder of the party. A later joined party should not be penalized for another defendant’s failure to bring a forum non conveniens motion. This would clearly be contrary to the intent of Rule 187.

Furthermore, although the circuit court relied upon the amount of time that this action had been pending in Cook County as a reason for denying transfer to another forum, forum non conveniens motions have been granted by reviewing courts even after an action has been tried to verdict. (See McClain v. Illinois Central Gulf R.R. Co. (1988), 121 Ill. 2d 278, 292, 530 N.E.2d 369.) Consequently, the circuit court should not have considered the amount of time the case had been pending in Cook County prior to Drekmeier’s joining the litigation.

Although the circuit court improperly considered the time the case had been pending in Cook County as a factor, transfer may still be improper if the balance weighs in favor of plaintiff’s chosen forum based upon the proper considerations set forth in Gulf Oil Corp. v. Gilbert or if, as Schoon argues, Drekmeier failed to satisfy its burden that the chosen forum is inconvenient to Drekmeier. Weaver v. Midwest Towing, Inc. (1987), 116 Ill. 2d 279, 285, 507 N.E.2d 838.

In the instant case, Schoon chose neither the county of his residence nor the situs of injury as a forum. Thus, his choice of Cook County is not given great deference. (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 506 N.E.2d 1291; McClain v. Illinois Central Gulf R.R. Co. (1988), 121 Ill. 2d 278, 530 N.E.2d 368.) However, the test is still whether the relevant factors, viewed in their totality, strongly favor transfer to the forum suggested by defendant. Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 554 N.E.2d 209.

Drekmeier argues that because the private and public interest factors strongly favor transfer, the circuit court abused its discretion in denying its motion to transfer. According to Drekmeier, a majority of the potential witnesses reside outside of Cook County. In addition, Drekmeier maintains that the sources of proof are all outside of Cook County. Drekmeier argues further that Cook County has no interest in resolving the instant litigation. In other words, Drekmeier contends that Cook County lacks any significant factual connection to this case. Add to these factors the crowded condition of the Cook County court dockets, Drekmeier argues, and it is apparent that the relevant factors strongly favor transfer.

However, upon review of the record in this case, we are unable to conclude that the circuit court abused its discretion in denying Drekmeier’s motion to transfer. Although Drekmeier has argued Cook County has no factual connection to this case, it has failed to show how either it or any of the other parties will be inconvenienced by the Cook County forum. See Weaver v. Midwest Towing, Inc., 116 Ill. 2d 279.

The first factor in the private interest analysis is the relative ease of access to sources of proof. (Gulf Oil Cory. v. Gilbert (1947), 330 U.S. 501, 508, 91 L. Ed. 1055, 1062, 67 S. Ct. 839, 843.) Here, Drekmeier contends that all the doctors named as Schoon’s treating physicians are from Wisconsin and that the hospitals and clinics where Schoon was treated are in that State. Moreover, Dr. Hill, the doctor who is alleged to have caused Schoon’s injuries, resides and works in McHenry County.

Although Drekmeier contends that the bulk of the medical records and sources of proof are outside plaintiff’s chosen forum, there is no showing in the record that Drekmeier would be inconvenienced by defending in Cook County. Drekmeiér offers Schoon’s responses to interrogatories in support of its motion; however, Drekmeier offers nothing to show that these hospitals and doctors have evidence which Drekmeier must use in its defense. Drekmeier argues that Rock County, Wisconsin, would be a more convenient forum; nevertheless, Drekmeier fails to show that there are any sources of proof in Rock County. Rather, Drekmeier merely shows that none of the responses tendered by Schoon to the interrogatories lists persons or businesses in Cook County.

The second factor in the analysis concerns the location and availability of witnesses. Drekmeier argues that none of the attending physicians and none of the physicians named by Schoon as witnesses reside in Cook County. Although Schoon listed a number of possible witnesses, including his family members, he failed to give their addresses. Thus, Drekmeier argues, from the list of addresses given for witnesses, not one resides or works in Cook County. Rather, most of them live and work in Wisconsin.

However, Drekmeier again reveals little, if any, inconvenience to the parties. Drekmeier does not indicate which would show which witnesses would actually be called to support its defense. Moreover, Drekmeier did not indicate what the testimony of potential witnesses would be, how their testimony would impact the defense or whether or not their depositions could be used successfully at trial. (Weaver v. Midwest Towing, Inc., 116 Ill. 2d at 289.) Significantly, Drekmeier did not even provide the names and addresses of its own employees who had knowledge about the case and who would testify at trial. The motion states only a conclusion and does not set out any facts to show that other forums would be more convenient for trial than Cook County. See Weaver v. Midwest Towing, Inc., 116 Ill. 2d 279.

The other factor to be considered, a possible jury view of the site, is a neutral factor in this case. Neither party asserts that it would be helpful to visit any of the hospitals, clinics, or doctor’s offices where Schoon was treated.

Drekmeier has failed, then, to sustain its burden of showing that the private interest factors weigh strongly in its favor. We next consider the public interest factors.

Drekmeier argues that the docket in Cook County is overcrowded. Although Drekmeier suggests that Wisconsin courts or a court in McHenry County would be a more convenient forum, it has offered no evidence as to the condition of the dockets of those courts, nor evidence as to whether, had Schoon instituted an action in those forums, he would have met with the same backlog as Drekmeier contends exists in Cook County. (See Weaver v. Midwest Towing, Inc., 116 Ill. 2d at 289.) Therefore, in these circumstances, Drekmeier’s argument based upon the backlog in Cook County is neither decisive nor even a persuasive factor.

Drekmeier next argues that the citizens of Cook County do not have an interest in deciding this lawsuit which arose from an occurrence outside Cook and they should not have to bear the time and financial burden of deciding the matter. (See Torrijas v. Midwest Steel Erection Co. (1984), 130 Ill. App. 3d 788, 794, 474 N.E.2d 1250.) Moreover, Drekmeier maintains that simply because Upjohn may be doing business in Cook County is not in itself enough to show a “local” interest in the controversy. (Torrijas v. Midwest Steel Erection Co. (1984), 130 Ill. App. 3d 788, 793.) On the contrary, according to Drekmeier, it is the citizens in Rock County, Wisconsin, where at least some of Schoon’s medical treatment occurred, who have an interest in this controversy. Likewise, Drekmeier contends, McHenry County citizens have more of an interest, because it was one of their doctors who is alleged to have been negligent, than do citizens of Cook County. Thus, Drekmeier argues, the public factors weigh in its favor.

Although we agree that Rock County and McHenry County have an interest in resolving this litigation, we cannot conclude that simply because these counties have an interest in the case that the circuit court abused its discretion in denying Drekmeier’s motion to transfer. The role of this court is not to substitute its judgment for that of the circuit court, or even to determine whether the circuit court exercised its discretion “wisely.” (Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 444 N.E.2d 157; Brummett v. Wepfer Marine, Inc. (1986), 111 Ill. 2d 495, 503, 490 N.E.2d 694.) Rather, our task is to determine if the circuit court abused its discretion; in the absence of an abuse of discretion, the decision of the circuit court in granting or denying a forum non conveniens motion will not be disturbed on review. Weaver v. Midwest Towing, Inc. (1987), 116 Ill. 2d 279, 288, 507 N.E.2d 838.

After considering the record of the hearing on Drekmeier’s motion to transfer, it is evident that the circuit court did not abuse its discretion. The factors considered do not balance strongly in Drekmeier’s favor; indeed Drekmeier’s motion to transfer is perfunctory, at best. Because Drekmeier failed to sustain its burden in support of its motion to transfer, plaintiff’s choice of forum must be honored. Weaver v. Midwest Towing, Inc., 116 Ill. 2d at 285.

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

Affirmed.

SCARIANO, P.J., and HARTMAN, J., concur.

       Although the interrogatory requested the addresses of these persons, Schoon did not provide addresses in his answer.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    CHESTER BORYS et al., Plaintiffs and Counterdefendants-Appellees, v. WILLIAM RUDD, Defendant and Counterplaintiff-Appellant.
    First District (1st Division)
    No. 1—89—3038
    Opinion filed December 10, 1990.
    — Rehearing denied February 4, 1991.—
    Modified opinion filed February 11, 1991.

      Jenner & Block, of Chicago (Russell J. Hoover, of counsel), for appellant.
    Brown & Statza, of Chicago (Gerald R. Statza, of counsel), for appellees.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from the accounting of the affairs of the dissolved Orland Humphrey Building Partnership (the partnership). Litigation commenced in 1987 when two of the partners, Chester Borys and Robert Scurio (plaintiffs), brought suit in the circuit court of Cook County against the third partner, William Rudd (defendant), seeking to enjoin defendant from acting as the sole manager of the partnership and seeking an accounting of the partnership business. The circuit court entered an injunctive order providing that all three partners manage the property equally by vote commencing January 1988, but the partnership dissolved shortly after the effective date. The circuit .court then entered an agreed order requiring defendant to account for the partnership operations from its inception through January 1988 and requiring plaintiffs to account for the period after January 1988. The parties also filed independent claims, alleging breaches of contract and fiduciary duty.

Following a bench trial, the circuit court entered an order distributing the partnership’s assets. Defendant appeals from those portions of the order requiring defendant to pay rent to the partnership for use of the building’s basement space, requiring defendant to pay real estate tax penalties and losses resulting from the settlement of a partnership claim, refusing defendant any interest on cash advances to the partnership, refusing defendant compensation for management and janitorial services, and ordering plaintiffs’ attorney fees be paid from the partnership assets.

In 1978, defendant requested that plaintiffs, his long-time friends and business acquaintances, become his partners in the construction and operation of an office building in Orland Park, Illinois. Plaintiffs and defendant orally agreed to the partnership, each agreeing to make a $50,000 capital contribution to the venture and that any additional cash advances loaned to the partnership would earn interest at the rate of 2% over the prime rate.

On August 4, 1979, the three partners entered into a written agreement with Rudd, who signed in his individual capacity. The agreement provided, in pertinent part:

“Be it resolved that the partnership has undertaken to construct a three story office building in Orland Park for the purposes of securing rental income with the eventuality of spliting [sic] off parts as condo office space, wherein the partnership will continue to hold that portion of condominium office space that they desire for income purposes. In consideration for William A. Rudd’s conception of the idea of the office building and for his efforts in procuring a suitable site for the building and his work and efforts in getting the office building constructed, the partnership has agreed to sell to William A. Rudd the basement at whatever additional cost was incurred to construct the basement. Additional cost is defined as that cost incurred by the partnership over and above what cost that would have been incurred anyway to build and occupy the three story office building.
Be it resolved that the partnership will enter into a lease with William Rudd so that the bank’s requirements for lease activity shall be satisfied and the amounts that will be payed [sic] under the lease arrangement will be only to the extent of paying for the cost listed above. Since the building will be mortgaged as an entire unit William Rudd will pay that portion that reflects his cost of the basement principal and interest and the partnership will pay the balance. *** Heat and light is to be separately metered and will be the expense of William Rudd for that portion which is his, the basement. Also pro rata re [sic] taxes, water.
William Rudd will furnish a management service for the building and will charge a fee based on the going market rate as determined by the average of Arthur Rubloff and Baird Warner for similar services. Janitorial services will be provided by personnel hired by William Rudd and on the payroll of Comprehensive Accounting and the partnership will be charged the going rate for janitorial services.
William Rudd will provide an accounting service at a rate consistent with that charge [sic] to other clients for similar services.”

On the same date, the parties also entered into an agreement establishing a land trust to hold title to the real estate at the Bank of Hickory Hills. Each partner originally held an undivided one-third beneficial interest in the land trust, with the agreement later being amended to provide that the partnership own the entire beneficial interest.

Through defendant’s efforts in finding a suitable construction site, in securing financing, in making arrangements for building construction, and in gaining the appropriate municipal approval, the partnership acquired the real estate at a cost of $150,000 and, by October 1980, completed construction on the three-story office building with basement at a cost of approximately $625,000. The latter cost in-eluded $82,096 for the additional cost of the basement construction and $10,445 for the cost of a telephone system installed in the basement.

Defendant moved his accounting business into the building’s basement in October 1980. Defendant undertook operation and leasing management of the building, including drafting and negotiating leases, laying out and supervising tenant build-outs, dealing with tenant complaints, collecting rent and paying bills. Commencing in the fall of 1980, defendant leased the building’s basement space for $2,000 per month to his corporation, Rudd, Inc., which, in turn, began subleasing a portion of the space in April 1987 to a tenant for $550 in monthly rent.

Defendant also maintained the partnership books and detailed accounting records. Defendant communicated with plaintiffs on a weekly basis during the period 1981 to 1986 regarding partnership and personal business. Defendant and plaintiffs disputed at trial whether defendant furnished written financial statements on an annual basis. Scurio admitted he received financial statements in 1981, 1984 and 1986 for the years 1981 through 1983 and the first six months in 1986, and Borys also admitted receiving statements for the years 1981 through 1983 and 1986.

The partnership did not show a profit until 1986, the first year the building was 100% rented. Defendant failed to file partnership income tax returns during the years the partnership operated at a loss, and he agreed to accept personal financial responsibility for the resulting annual late filing penalties of $750 assessed to the partnership. Defendant was unable to obtain any bank loans on behalf of the partnership, and the partnership’s 1981-1982 and 1984 unpaid real estate taxes were sold. The taxes were ultimately redeemed — the penalties from which amounted to $67,747.98. Defendant settled the partnership’s $15,000 disputed claim against the seller of the real estate, Terry Kunes, for $10,000. Defendant did not inform plaintiffs of the tax sales until 1987, and he did not obtain Scurio’s or Borys’ approval to settle the partnership claim.

In order to meet operating expenses, the partners advanced additional money to the venture. Promissory notes were given for most of the partners’ loans. Defendant and Borys signed all but one of the Scurio notes on behalf of the partnership, and defendant signed his and Borys’ notes on behalf of the partnership. Scurio’s advances were also evidenced by a security agreement and assignment of beneficial interest recorded with the land trustee.

Defendant accounted for the partners’ advances by establishing three separate “notes payable to related parties” accounts. Interest accrued on the accounts at a rate of 2% over the prime rate. Defendant increased the account balances when advances were made by the partners, and he decreased the balances when payments were made by the partnership to the partners. By the time of dissolution in 1988, the net balance in the Scurio account was $88,500, while the Borys account reflected a $22,000 net balance. Defendant’s account reflected actual cash advances totalling $322,810.90, unpaid charges to the partnership of $10,000 per year for his management services, and unpaid charges of $13,000 per year for janitorial services. Defendant deducted from his notes payable account his debt to the partnership for the basement space, prorating the partnership’s annual mortgage principal and interest payments, real estate taxes, and gas and electric bills. At the time of trial, after reducing his account by more than $140,000 for principal and interest payments, $92,541 of the principal remained on defendant’s debt to the partnership.

The partnership sold the office building for $1.1 million prior to trial. As of the time of trial, the partnership’s property available for distribution, after payment to third-party creditors, totalled $445,525.81. Although defendant’s calculations reported $68,024 in Borys’ note payable account, $213,918 in the Scurio account, and $607,389.56 in defendant’s account, the circuit court’s order found $6,025.81 to be due to defendant on cash advanced, $29,919.29 due to Borys on cash advanced, $165,238.31 due to Scurio on cash advanced. The court deducted the following from the remaining $247,939.29 balance: $3,750 in escrow to insure payment of tax penalties, $3,596.89 to close partnership account at Hickory Hills Bank, $7,922.06 for accounting fees by the recent accountant, $36,002.30 in legal fees to plaintiffs’ lawyers, and $50,000 in capital contributions to each of the partners. The court then divided the remaining balance into one-third distributions of $15,556.01. The court’s calculations resulted in total payments of $230,794.33 to Scurio; $95,475.30 to Borys; and $71,581.82 to defendant.

On appeal, defendant contests, not the order of the circuit court’s distribution of payment (see Ill. Rev. Stat. 1987, ch. IO6V2, par. 40(b)), but the court’s determination as to the extent of the partnership’s debt to defendant and the extent of defendant’s debt to the partnership. Defendant contends that the circuit court, in reaching these determinations, erroneously ignored the acknowledged agreement of the parties, misapplied the law, and made findings without substantial factual basis in the record. For clarity purposes, we will first collectively address defendant’s contentions regarding the written agreement between the parties.

Defendant argues that the court’s ruling contravened the 1979 written agreement between the parties that defendant would buy the basement at its construction cost and that defendant would receive compensation at the going market rate for management and janitorial services performed for the building. The circuit court denied any compensation to defendant for his management services, allowed only half of his janitorial fees for the years 1981 to 1987, and ordered to be set off against the partnership’s debt to defendant the construction cost of the basement and $252,500, representing the basement’s fair rental value for the years defendant occupied the basement.

It is established that partners may establish between themselves their rights and obligations in the partnership through a partnership agreement. (Estate of McKay v. Moses (1976), 35 Ill. App. 3d 458, 343 N.E.2d 45.) The partners here, after entering into an oral partnership agreement, entered into a written agreement regarding certain rights and obligations of the partners in the partnership venture. Plaintiffs offer no argument that the partners could not determine their specific rights through a subsequent agreement, but argue that the document signed by the parties is an unenforceable “agreement to agree.” The circuit court made the following pertinent findings regarding this agreement: (1) the contract is “neither clear nor concise nor unambiguous”; (2) defendant’s ownership interest in the basement “was never perfected” and was “not susceptible of being perfected”; and (3) defendant breached the agreement and his fiduciary duty to plaintiffs by failing to account to the partners for the management of the premises.

A court is to apply ordinary principles of contract law when construing an agreement between partners. (In re Estate of Johnson (1984), 129 Ill. App. 3d 22, 472 N.E.2d 72.) In so doing, the court’s primary objective is to give effect to the intent of the parties. (Johnson, 129 Ill. App. 3d 22, 472 N.E.2d 72.) The intent must be ascertained solely from the language of the agreement where the language is unambiguous; extrinsic evidence may be considered only where the terms are ambiguous. (P.A. Bergner & Co. v. Lloyds Jewelers, Inc. (1986), 112 Ill. 2d 196, 492 N.E.2d 1288.) The determination of whether a contract is ambiguous is a question of law to be determined by the court. Lenzi v. Morkin (1983), 116 Ill. App. 3d 1014, 452 N.E.2d 667.

The circuit court did not expound on its finding that the agreement was ambiguous. After carefully reviewing the document in question, we find no ambiguity in its terms. The clear and ordinary meaning of the language indicates the partners’ intent to sell defendant the basement for its cost in consideration for his conception of the partnership idea and for various efforts in the construction of the office building and to pay defendant a going market rate for the performance of management and janitorial services. We reject plaintiffs’ interpretation, asserted for the first time on appeal, that the partners intended defendant would own the basement only in the event that the building be converted to condominium units. The consideration provided for in the agreement does not include any efforts in converting the building to condominium units. The agreement merely states that the partnership has undertaken to construct the office building for “the purposes of securing rental income with the eventuality of splitting off parts as condo office space,” without placing any time requirement on the conversion or any obligation upon defendant. Thus, the circuit court erred as a matter of law to the extent its holding rests on a finding of ambiguity in the agreement.

The court also did not expound on its second finding, that defendant’s ownership interest in the basement “was never perfected” or “susceptible of being perfected.” We fail to understand this seemingly property-based analysis. While it is true that a partner must account to the partnership for any benefit derived by him from any use of the partnership property without his partners’ consent (Ill. Rev. Stat. 1983, ch. 106½, par. 21(1)), the agreement providing that the basement space would be sold to defendant, payment to be made over a period of time, establishes between the parties that the property was the individual property of defendant and not partnership property. Assuming defendant’s performance of his obligations under the contract, defendant would not be required to account for any benefits he received from use of his personal property.

The above leads us to the court’s third finding that defendant breached the agreement by failing to account to the partners for the management of the premises. It is established that only a material breach of a contract provision will justify nonperformance by the other party. (Circle Security Agency, Inc. v. Ross (1982), 107 Ill. App. 3d 195, 437 N.E.2d 667; Sahadi v. Continental Illinois National Bank & Trust Co. (7th Cir. 1983), 706 F.2d 193.) The determination of whether a party has committed breach of contract is a question of fact, which will not be disturbed on review unless the finding is against the manifest weight of the evidence. Barrows v. Maco, Inc. (1981), 94 Ill. App. 3d 959, 419 N.E.2d 634; Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791, 405 N.E.2d 1051.

The “multiple breaches” found by the court include defendant’s actions in failing to pay, arrange for payment, or consult with the partners regarding real estate taxes, his failure to file or consult with the partners regarding the Federal income taxes, his failure to discuss with the partners the settlement of a partnership claim, and his failure to account to the partners for the rents received for the basement space.

The final two “breaches” found by the court may be summarily disposed of here. As previously discussed, the agreement did not require defendant to account to the partners for rents received from the basement space, and the undisputed evidence reveals that defendant performed his obligations with regard to the basement space. No sound argument may be made that defendant’s business decision to settle, in lieu of costly litigation, the $15,000 partnership claim for $10,000, or his failure to seek the other partners’ approval of this decision, is a material breach of the contract provision for management services.

As to the court’s finding that defendant’s actions with regard to the income and real estate taxes were material breaches of the contract, the record reveals that defendant performed significant management services for the partnership during the period 1981 through 1987, including the drafting and negotiation of all tenant leases, the supervision of tenant build-outs, the handling of tenant complaints, the collection of rents and the payment of partnership bills. Undisputed evidence was presented that defendant regularly communicated with plaintiffs and provided plaintiffs with accurate written financial statements for at least four of the years in question. The record further reveals that the partnership lacked the funds to pay the real estate taxes despite considerable cash advances made by defendant in excess of his allocable share and that the partnership ultimately redeemed the property sold from the tax sale, thereby sustaining only a monetary loss in the form of penalties. Although defendant failed to file partnership returns with the Internal Revenue Service, he accepted personal financial responsibility for the $3,750 loss to the partnership for late filing penalties. In light of these factors, as well as the undisputed evidence of the significant activities performed by defendant in the management of the office building, we hold that the circuit court’s finding that defendant materially breached the contract is against the manifest weight of the evidence.

Accordingly, the circuit court erred in refusing to enforce the provisions of the 1979 agreement. In contravention of its terms, the court improperly offset from the partnership debt to defendant the fair value of the basement rent and improperly disallowed the partnership’s debt to defendant for his management and janitorial services.

The actions found by the court to warrant nonenforcement of the written agreement apparently also formed the basis for the court’s denial of any interest on defendant’s cash advances to the partnership under the partners’ oral agreement to allow interest. As previously discussed, these actions do not support the court’s refusal to enforce the parties’ agreements. Furthermore, defendant is entitled to the agreed-upon interest rate of 2% over the prime rate. Plaintiffs cite no case law to support the court’s decision to allow the agreed-upon interest rate only on Scurio’s cash advances. The court denied defendant and Borys the agreed-upon interest rate apparently on the basis that only Scurio’s advances were secured by notes executed by all three partners and an assignment of beneficial interest in a land trust. We agree with defendant that the manner in which the debt is evidenced is irrelevant to the issues in the case at bar since all the parties concede the amount of the cash advances made by each partner.

Turning now to defendant’s contention regarding the real estate tax penalties and settlement of the partnership’s third-party claim, the circuit court ordered that $67,747.78 in late penalties incurred by the partnership be set off against defendant’s cash advances to the partnership, as well as the $5,000 disputed third-party claim. Defendant contends that he should not be held liable for his exercise in business judgment where he derived no personal benefit from any of his mistakes. Plaintiffs, on the other hand, argue that the court did not err in assessing defendant these losses because he violated his fiduciary duty as managing partner to fully apprise his partners of these matters.

It is an established precept of tort law that partnership losses occasioned by a partner’s poor judgment or mistakes of judgment will be borne by the partnership so long as the decision does not involve fraud, illegality, or conflict of interest. (Fields v. Sax (1984), 123 Ill. App. 3d 460, 462 N.E.2d 983; Marcus v. Green (1973), 13 Ill. App. 3d 699, 300 N.E.2d 512.) Equally established is the principle that the partnership relationship is a fiduciary relationship, requiring each partner to fully disclose partnership business to other partners and to exercise the highest degree of honesty and good faith in dealings with each other. Saballus v. Timke (1983), 122 Ill. App. 3d 109, 460 N.E.2d 755; Ill. Rev. Stat. 1983, ch. IO6V2, par. 21.

The record is devoid of any evidence that defendant’s actions were tainted by fraud or that defendant lacked good faith. Defendant’s negotiation of the partnership’s $15,000 claim for $10,000, where the third party asserted only a $7,500 debt, occurred after repeated attempts to collect the debt. Plaintiffs concede that the real estate taxes were not paid due to a lack of funds, that defendant contributed significant cash advances to the partnership to meet its operating expenses, and that defendant made repeated efforts to borrow the funds from conventional lenders. Thus, defendant’s decision to settle the third-party claim and his decision to forego payment of the real estate taxes and incur late penalties through redemption of the taxes could only be viewed, if at all, as a poor exercise in business judgment.

Furthermore, the fact that defendant did not obtain plaintiffs’ approval of the settlement or inform plaintiffs of the tax sales, without more, does not demonstrate a lack of honesty or fair dealing on defendant’s part. Defendant provided plaintiffs with accurate statements of the financial condition of the partnership for the period 1981 through 1983 and the first six months of 1986, which detailed the partnership liability for the accrued real estate taxes. Plaintiffs were also aware of the disputed claim against the third party. The court’s finding that defendant, who was regularly making business decisions, breached his fiduciary duty to plaintiffs by not informing them of his decisions to settle the claim or to allow the taxes to be sold is against the manifest weight of the evidence.

Finally, we consider defendant’s contention that the circuit court erred in ordering plaintiffs’ attorney fees and certain accountant fees be paid from the partnership assets. The circuit court ordered to be paid from the partnership assets $7,922.06 in fees from the accountant hired by plaintiffs after the 1988 injunctive order and $36,002.30 representing fees by plaintiffs’ attorney after January 1988. Attorney fees and litigation expenses are generally not recoverable in the absence of statutory provision or agreement of the parties. (Susman v. Cypress Venture (1989), 187 Ill. App. 3d 312, 543 N.E.2d 184.) The parties do not dispute the absence of such a contract or statutory provision, but disagree as to whether the fees were properly assessed as the partnership entity’s fees.

Defendant argues that the services in issue consist exclusively of efforts aimed at maximizing plaintiffs’ interests and minimizing defendant’s interests on dissolution of the partnership. In response, plaintiffs have not directed us to any evidentiary support for a finding that the questioned fees are attributable to partnership services. Our review of the legal charges attached to the court’s judgment order reveals charges commencing on February 16, 1988, through the close of trial on this matter on October 10, 1989. For the most part, the services were rendered after defendant’s letter dissolving the partnership and include services for settlement efforts, trial preparation, and all aspects of the trial. Because these services pertain to plaintiffs’ individual interests, the circuit court had no authority to order the fees payable from the partnership assets.

The evidence relating to accounting services consists of testimony from the accountant hired by plaintiffs following the court’s injunctive order. On examination by defendant’s counsel, the accountant testified that he received payment for certain accounting services rendered, but that he had not been paid for statements of June 30, 1988, and August 31,1988. The following colloquy then ensued:

“THE COURT: Gentlemen, you heretofore represented to me that there were no third party obligations.
[DEFENDANT’S COUNSEL]: I was unaware of it.
THE COURT: Were you unaware?
[PLAINTIFFS’ COUNSEL]: Of Mr. Recchia’s outstanding bill?
THE COURT: Yes.
PLAINTIFFS’ ATTORNEY: I’m aware of it, your Honor, but I consider it a nonpartnership debt because you dissolved of [sic] the partnership in November of ’88 and this bill came after that.”

Defendant’s attorney abandoned further inquiry into the accountant’s services. Under these circumstances, it was error for the court to order the accountant fees to be paid from the partnership assets.

In summary, we reverse the following portions of the judgment order: (1) the $252,000 set off against the partnership’s debt to defendant for the basement rental value, (2) the $67,747.98 set off against the partnership’s debt to defendant for real estate tax penalties, (3) the $5,000 set off against the partnership’s debt to defendant for the third-party claim, (4) the assessment of $36,002.30 and $7,922.16 in attorney and accountant fees to the partnership, (5) the omission from the partnership’s debt owing to defendant compensation for management and janitorial services, and (6) the omission from the partnership’s debt to defendant interest on defendant’s cash advances at a rate of 2% over the prime rate. Accordingly, the case is remanded to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded.

CAMPBELL and O’CONNOR, JJ., concur.

      In preparing his final accounting, defendant established a separate asset account to reflect his indebtedness to the partnership for a $10,445 basement telephone system and, in turn, reduced his notes payable account by an annual pro rata share of the partnership mortgage principal and interest attributable to the cost of the telephone system.

      Defendant’s account was adjusted from $626,526 to $607,389.56 to correct water bill allocations and mischarged interest.

      Although not necessary to our holding, we note that a contrary interpretation is not supported by the extrinsic evidence. Plaintiffs signed affidavits submitted to the Internal Revenue Service in 1987, which provided:
      “In 1979, I did sign an agreement giving RUDD the basement section of the building at a cost to him for what improvements were necessary for use. BORYS [SCURIO] and I gave RUDD this property for all the work on obtaining the property, contractors, and other paperwork. Since RUDD intended on moving his accounting practice into the basement, it was agreed that RUDD would handle the management, leasing and maintenance services needed for the building and charge the partnership the average rate for those services.”


author: JUSTICE EGAN

text:
    JOSEPH T. RYERSON AND SON, INC., Plaintiff-Appellee, v. MANULIFE REAL ESTATE COMPANY et al., Defendants-Appellants.
    First District (6th Division)
    No. 1—89—3431
    Opinion filed November 26, 1990.
    — Rehearing denied January 24, 1991.

      Rosenthal & Schanfield, of Chicago (James M. Dash and Stephen P. Kikoler, of counsel), for appellants.
    Burke, Wilson & Mcllvaine, of Chicago (Leonard S. Shifflett and John W. Kalich, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Joseph T. Ryerson & Son, Inc. (Ryerson), brought suit to foreclose a mechanics’ lien on property owned by defendant Manufacturers Life Insurance Company (Manulife). Manulife had employed defendant E.W. Corrigan Construction Company (Corrigan) as the general contractor on a project requiring Corrigan to construct a new office building in Schaumburg, Illinois. Corrigan, in turn, entered into a subcontract with Crescent Corporation (Crescent) that required Crescent to fabricate and install a curtain wall on the project. Crescent then contracted with Ryerson for the furnishing of certain materials necessary for Crescent’s performance on the subcontract.

In December 1985 Crescent ceased to perform on its subcontract with Corrigan, allegedly in breach of that subcontract. Crescent also allegedly failed to pay Ryerson for materials and supplies worth $55,913 which Ryerson had delivered to Crescent and which were received and used in the project. On November 3, 1986, Ryerson filed the underlying suit against Manulife and Corrigan seeking to foreclose its alleged mechanics’ lien for the unpaid balance. Ryerson did not name Crescent as a party to the suit.

The defendants, Corrigan and Manulife, each filed a motion to strike the complaint, alleging that Crescent was a necessary party to the action and that the failure to name Crescent constituted a fatal defect in the pleading. Ryerson opposed the motion, and the trial judge denied it. The judge later granted Ryerson’s motion for summary judgment and entered judgment against the defendants jointly for $47,368.30 plus interest.

The defendants argue that the trial court erred in denying the motion to strike for failure to name a necessary party. Alternatively, the defendants challenge whether an owner and a general contractor can be required to pay a material supplier to a subcontractor more than the subcontract price or more than the amount owed to the subcontractor when the owner and general contractor received notice of the material supplier’s lien claim.

Section 22 of the Mechanics’ Liens Act (Act) provides the basis for Ryerson’s lien, stating:

“When the contractor shall sub-let his contract or a specific portion thereof to a sub-contractor, the party furnishing material to or performing labor for such sub-contractor shall have a lien therefor; and may enforce his lien in the same manner as is herein provided for the enforcement of liens by sub-contractors.” (Ill. Rev. Stat. 1989, ch. 82, par. 22.)

Section 28 of the Act provides for the enforcement of liens by subcontractors and states, in part, as follows:

“All suits and actions by sub-contractors shall be against both the contractor and owner jointly, and no judgment shall be rendered therein until both are duly brought before the court by process or publication ***.” (Ill. Rev. Stat. 1989, ch. 82, par. 28.)

Section 11 of the Act provides:

“§11. The complaint shall contain a brief statement of the contract or contracts on which it is founded ***. *** The plaintiff shall make all parties interested, of whose interest he is notified or has knowledge, parties defendant, and summons shall issue and service thereof be had as in other civil actions; * * * and his failure to so act with regard to summons or notice shall be ground for judgment against him as upon the merits. *** Parties in interest, within the meaning of this act, shall include *** all persons *** who are interested in the subject matter of the suit.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 82, par. 11.

Boiled down, the issue is whether Crescent is a person “interested in the subject matter of the suit.” The defendants cite John E. Burns Lumber Co. v. W.J. Reynolds Co. (1909), 148 Ill. App. 356, as the only Illinois authority directly in point. In Burns the appellate court found that the evidence showed that the plaintiff had contracted to supply material to a carpentry subcontractor, W.J. Reynolds, an individual. The complaint, however, had named the W. J. Reynolds Company as the alleged subcontractor. (The complaint also named the owner and the general contractor.) The appellate court reversed the judgment in favor of the plaintiff because the complaint had failed to name the true subcontractor, W.J. Reynolds, personally and individually. In so doing the court stated:

“The complainant [and other intervening material suppliers] are all furnishers of material for the subcontract and, being of that class, they *** claim liens under section 22 of the Mechanics’ Lien Act. They contracted with and trusted the subcontractor and, through that relation, they claim their lien upon the property. Should they eventually establish a right to liens and thereby the amount the owner would be obliged to pay for the carpenter work be made to exceed the contract price, a right to be reimbursed by the subcontractor, if not by the original contractor, would arise. It is, therefore, of the highest importance that the actual subcontractor, a party in interest and under the lien law a necessary party as such, be a party to this proceeding.” (Emphasis added.) 148 Ill. App. at 365-66.

The relation of the parties in Burns is identical to the relation of the parties in this case. The plaintiff in Burns claimed its lien through the subcontractor, Reynolds; Ryerson claimed its lien through its contract with the subcontractor, Crescent. Under the authority of Burns, therefore, it is inescapable that Crescent is “a party in interest and under the lien law a necessary party as such.” 148 Ill. App. at 366.

Ryerson seeks to distinguish Burns; it emphasizes that the trial court in Burns heard evidence which established the interest of the subcontractor, W.J. Reynolds; it further claims that the record in this case shows that Crescent had no interest because Crescent was bankrupt. First of all, there was no need to hear evidence to establish the relationship between Ryerson, Crescent and the defendants. Ryerson’s complaint established the relationship. Second, as the defendants point out, the record does not support a finding that Crescent was bankrupt. Moreover, the trial judge never made such a finding; he was never asked to do so. Indeed, in the memoranda filed by Ryerson in the trial court, no argument was made that Crescent was not a necessary party because it was bankrupt.

Ryerson’s supporting citations to the record on appeal reveal the following: Corrigan stated in its first affirmative defense that Crescent breached its contract, was not owed money by Corrigan and, in fact, owed money to Corrigan; during his deposition, Manulife’s architect was asked whether he had any conversations with Corrigan in December 1985 or January 1986 regarding Crescent, and he stated, “I am not sure of the time, but Crescent was in the process of going bankrupt, I don’t know if it refers to this period or not”; a vice-president of Corrigan stated in his affidavit that “Crescent became unable to perform its obligations under the subcontract with Corrigan and in December, 1985, Crescent completely stopped doing any work on the building.” In arguing the motion for summary judgment, Ryerson’s attorney stated to the judge, “As you’re aware, Crescent went into bankruptcy. The Crescent personnel were scattered to the winds. Their records are not obtainable.”

The matters cited by Ryerson fail to support a conclusion that Crescent was bankrupt and had no interest in the suit; therefore, Ryerson has failed to distinguish Burns on that ground. Corrigan’s affirmative defense and the affidavit of Corrigan’s vice-president merely state that Crescent breached or became unable to perform, not that Crescent became bankrupt. The argument of Ryerson’s attorney does not constitute evidence. Finally, the deposition testimony of the architect that at some undetermined time “Crescent was in the process of going bankrupt” does not indicate that Crescent indeed ever was involved in bankruptcy proceedings. Thus, without expressing an opinion as to whether a subcontractor’s bankrupt status would render the subcontractor nonnecessary in a suit by its material supplier, we simply conclude that there is no support in this record for a finding that Crescent was, in fact, bankrupt at any time. We agree with Ryerson’s counsel, who, in oral argument, conceded that if Crescent was not bankrupt or judgment proof, then Crescent was in fact a necessary party. Parenthetically, we note that in Christy v. Nabholz Supply Co. (1977), 261 Ark. 127, 546 S.W.2d 425, and in Rasmussen v. Reed (1974), 255 Ark. 1064, 505 S.W.2d 222, the Arkansas Supreme Court held that the bankruptcy of a necessary party did not excuse the failure to name him in the suit. Cf. Gipson v. Tyson Foods, Inc. (1981), 272 Ark. 485, 615 S.W.2d 363 (failure to name bankrupt necessary party excused where bankruptcy court enjoined action against the bankrupt).

In addition to failing to distinguish Burns, Ryerson fails to address the fact that its contract with Crescent to supply materials provides the relation through which it claims its lien against the defendants. (Burns, 148 Ill. App. at 366.) Instead, Ryerson argues that Burns silently has been “superseded” by a more recent line of cases, citing Atlee Electric Co. v. Johnson Construction Co. (1973), 14 Ill. App. 3d 716, 303 N.E.2d 192, Malkov Lumber Co. v. Serafine Builders, Inc. (1971), 1 Ill. App. 3d 543, 273 N.E.2d 654, Bingaman v. Dahm (1940), 307 Ill. App. 432, 30 N.E.2d 509, Matot v. Barnheisel (1918), 212 Ill. App. 489, and Howell v. Anderson (1912), 170 Ill. App. 14.

Ryerson relies principally on Bingaman, which declined to reverse a judgment for the plaintiff-lien claimant for nonjoinder of certain other potential lien claimants because the defendant failed to show that any of the other claimants were in fact unpaid at the time objection to their nonjoinder was made. Bingaman, however, is clearly distinguishable from this case. The nonjoined parties therein were outside the chain of contract between the plaintiff and the defendant, and, moreover, “the record show[ed] that the claims for lien, upon which the defendants base[d] their contention of omission of necessary parties, were unenforceable at the time objection was first raised by defendants.” (Bingaman, 307 Ill. App. at 439.) Malkov Lumber Co. and Atlee Electric Co. likewise involved suits by material suppliers who were outside the chain of contract between the plaintiffs and defendants. In Matot, the owner-defendant claimed that the contractor should have joined its own subcontractors. That case would be in point if the defendants were claiming that Ryerson failed to sue its own subcontractors. Thus these holdings are inapposite to that in Burns and to the case before us. In Howell the appellate court affirmed a finding against the plaintiff who improperly joined the trustee in bankruptcy of the “principal contractor.” The court refrained from passing on the propriety of joining the bankrupt principal contractor. Ryerson is wrong when it says that Howell held “that an insolvent contractor lacking assets to pay anyone is not a necessary party to a mechanic’s lien action.”

In Capitol Plumbing & Heating Supply, Inc. v. Van’s Plumbing & Heating (1978), 58 Ill. App. 3d 173, 373 N.E.2d 1089, the court held that a general contractor was a necessary party. It rejected the defendant’s argument that Burns held that only a subcontractor was a necessary party. It did not express disapproval oí Burns.

We, therefore, adhere to the decision of John E. Burns Lumber Co. v. W.J. Reynolds Co. and hold that Ryerson’s complaint should have been stricken for failure to name a necessary party. In view of our holding, it is unnecessary to pass on the defendants’ alternative arguments.

Judgment reversed.

LaPORTA, P.J., and McNAMARA, J., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWAYNE CURTIS et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—86—2619
    Opinion filed December 13, 1990.
    Michael J. Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant Rickey Jennings.
    Randolph N. Stone, Public Defender, of Chicago (James Perlman, Assistant Public Defender, of counsel), for appellant Dwayne Curtis.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Joseph G. Laspisa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

This cause is before us on remand from the Illinois Supreme Court. Defendants filed petitions in our supreme court for leave to appeal this court’s decision in People v. Curtis (1989), 190 Ill. App. 3d 207, or, alternatively, for issuance of a supervisory order. Our supreme court denied defendants’ petitions. Subsequently, defendants petitioned the supreme court for leave to file motions for reconsideration, which were allowed in part. Defendants’ motions for reconsideration were allowed and the supreme court’s orders, which denied the petitions for leave to appeal, were vacated and thereafter leave was allowed.

The supreme court remanded the cause for our further consideration in light of People v. Andrews (1989), 132 Ill. 2d 451. In Andrews, the central issue was whether the defendant’s conduct during the commission of the attempted murder and aggravated battery was exceptionally brutal or heinous so as to be indicative of wanton cruelty and justify imposition of an extended-term sentence. Andrews, 132 Ill. 2d at 463.

The circumstances of the crimes in the present case are fully set forth in Curtis (190 Ill. App. 3d 207), and we will include herein only those facts that may be necessary for a full understanding of the issue raised.

Defendants were convicted, by a jury, on charges of attempted murder, armed violence, three counts of aggravated battery, and conspiracy to commit murder. The circuit court sentenced defendants to 50-year extended terms for attempted murder, 50-year extended terms for armed violence, 10-year extended terms for aggravated battery, and 7-year terms for conspiracy to commit murder.

On appeal, we affirmed defendants’ 50-year extended-term sentences for attempted murder and their 7-year sentences for conspiracy to commit murder, vacated the convictions and extended-term sentences for armed violence, and vacated the 10-year extended-term sentences for aggravated battery and modified these sentences to 5 years. (People v. Curtis (1989), 190 Ill. App. 3d 207, 217.) The issue before us now is whether the circumstances surrounding the attempted murder support the circuit court’s imposition of 50-year extended-term sentences.

We reverse and remand.

In People v. LaPointe (1981), 88 Ill. 2d 482, the court used an abuse of discretion standard of review in determining whether a sentence was appropriate based on the circumstances of each case. This standard was also used in People v. Andrews (1989), 132 Ill. 2d 451, 464, to determine whether the trial court properly found defendant eligible for an extended-term sentence under section 5 — 5—3.2(b)(2) of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(b)(2)). The language of section 5 — 5—3.2(b)(2) of the Code, which allows imposition of an extended-term sentence, and section 5 — 8—1(a)(1)(b) of the Code, interpreted by the LaPointe court, is identical. (Andrews, 132 Ill. 2d at 465.) The La Pointe court found that section 5 — 8—1(a)(1)(b) of the Code, which permits the imposition of a natural life imprisonment sentence where conduct is “accompanied by exceptionally brutal or heinous behavior, indicative of wanton cruelty,” does not limit the imposition of a sentence of natural life imprisonment to only those offenses involving torture or the infliction of unnecessary pain. La Pointe, 88 Ill. 2d at 501.

In People v. Evans (1981), 87 Ill. 2d 77, 88-89, our supreme court found that the intent of the statutory language of section 5 — 8— 2 of the Code, which allows extended-term sentencing, was not to convert every offense into an offense that would be subject to an extended-term sentence. The court reasoned that the trial judge must examine a defendant’s prior history of violent crimes, defendant’s attitude and any expression of remorsefulness before exercising its discretion in sentencing a defendant to an extended-term sentence. (People v. Andrews (1989), 132 Ill. 2d 451, 466.) In Andrews, the court reversed and remanded the case to the circuit court for resentencing because there was no indication in the record that defendant had a history of committing violent crimes or a callous attitude and total lack of remorse following the offense.

In the present case, we agreed with the trial court that both defendants exhibited conduct that was exceptionally brutal or heinous and indicative of wanton cruelty. Our decision was based on defendants’ illogical and premeditated decision to shoot a police officer. However, there were no findings of prior histories of violent crimes or callous attitudes and lack of remorse after the offense was committed. Furthermore, there was no indication that defendants intended the shooting to be fatal.

Accordingly, we reverse that part of the circuit court’s order sentencing defendants to an extended term of 50 years’ imprisonment on the attempted murder convictions, and this cause is remanded to the circuit court for a new sentencing hearing in which all of the above factors are to be considered.

Reversed and remanded with directions.

McMORROW, P.J., and LINN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. D’ARTHAGAN SARGENT, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—3012
    Opinion filed December 13, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Barbara McClure, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial, defendant, D’Arthagan Sargent, was found guilty of murder. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a).) He was sentenced to 80 years in the Illinois Department of Corrections.

On appeal, defendant raises the following issues: (1) whether a voluntary manslaughter instruction erroneously stated the burden of proof; (2) whether the trial court abused its discretion in allowing into evidence slides of the deceased as she appeared at the morgue; (3) whether a felony review memorandum and the testimony of an assistant State’s Attorney concerning this memorandum were properly allowed into evidence; (4) whether the trial court erred in barring a witness from testifying as to defendant’s general reputation; (5) whether the prejudicial impact of testimony concerning the 14-month-old daughter of the deceased outweighed the probative value of such evidence; and (6) whether the trial court erred in considering defendant’s six prior arrests and a 1967 committal in sentencing him to 80 years of imprisonment.

We affirm.

The body of Rhonda Barnes was discovered on October 3, 1982, by her sister, Donna Johnson. The deceased’s throat had been cut three times. She had also been strangled. Defendant was later charged with this murder. Subsequently, the trial court ordered defendant’s arrest quashed and his confession suppressed. An expedited appeal followed. This court reversed the trial court’s decision quashing defendant’s arrest and suppressing his confession. (People v. Sargent (1985), 139 Ill. App. 3d 488.) A jury trial was then commenced on July 14, 1987.

At trial, the evidence established that defendant was employed as an emergency medical technician at the Chicago Rehabilitation Center. He met Rhonda Barnes while she was a patient at the facility. During this period, defendant was also employed by the Mid-America Red Cross. Although defendant shared an apartment with another woman, he maintained an intimate relationship with Rhonda.

Defendant and Rhonda dated from spring of 1980 to late fall of that year. Defendant did not see her again until April of 1982. When he saw Rhonda, he noticed that she had a child. The next time defendant saw Rhonda was on the evening of October 1, 1982, at her apartment. Defendant admitted that he had been drinking liquor earlier that evening. He stopped by Rhonda’s apartment en route to the apartment which he shared with his girlfriend.

After conversing with Rhonda for a time, defendant asked her if she would be interested in having sexual intercourse with him. Initially, Rhonda declined, but then defendant offered her some financial assistance. Rhonda later agreed to having sex with defendant but did not want any money in exchange for the act.

After having sexual intercourse with defendant, Rhonda told him that she did need his financial assistance. He offered her $20, but, according to defendant, Rhonda demanded more money. Defendant then offered to write her a check, which she refused.

Failing at his attempts to pacify Rhonda, defendant decided to leave the apartment. As he started to walk toward the door, Rhonda managed to get in front of him and block his exit. She told defendant that “[he was] not going to be such a big shot if [his] job finds out that [he was] in prison.” In fact, according to defendant, Rhonda told him that he would probably lose his job if the proper authorities found out about his past.

Defendant told her that he felt she would not tell the authorities and to let “bygones be bygones.” When defendant again attempted to leave, Rhonda struck him on the ear. In return, defendant slapped her. The parties then began to argue. When defendant again attempted to leave, Rhonda tried to hit him. Defendant then pulled out his razor to frighten her. He was uncertain as to whether or not she saw the razor as she kept trying to slap him. Defendant then opened his razor, pulled Rhonda toward him and cut her. Rhonda fell to the floor and defendant fell on top of her. Defendant admitted that he lost control of his anger and cut her again. He then strangled her with a blouse that he found on the floor.

After strangling Rhonda, defendant took off her pants and attempted to clean up some of the blood. The bloodied clothes were later put into a bag and thrown away by defendant. Before leaving the apartment, defendant saw the deceased’s 14-month-old child looking at him. Defendant then panicked and ran out of the apartment. The child was left alone in the apartment with her dead mother.

Donna Johnson, Rhonda’s sister, testified that she attempted to reach her sister by telephone beginning October 1. On October 3, the child finally lifted the receiver but just cried into the phone. Donna immediately proceeded to Rhonda’s apartment, where she found her sister’s body. The child, who was caked with blood, was sitting on top of her mother’s body. Donna then called the police.

On October 6, 1982, defendant’s sister contacted defendant to inform him that the police were looking for him. Defendant called an officer of the police department that same day and agreed to cooperate with the investigation of the incident. Subsequently, defendant was taken to the police station and later confessed to this crime.

At the conclusion of the trial, the jury found defendant guilty of murder. It is from this decision that defendant appeals.

Defendant first contends that improper voluntary murder instructions directed the jury to convict him of murder and, in effect, removed a lesser offense, voluntary manslaughter, from their consideration. Defendant relies upon People v. Reddick (1988), 123 Ill. 2d 184, in which the Illinois Supreme Court held that when voluntary manslaughter instructions and murder instructions are both presented in a murder trial, an erroneous burden of proof is stated on the issues of whether defendant either acted under intense passion or an unreasonable belief that his action was justifiable.

In Reddick, the court stated:

“The voluntary manslaughter instructions indicate that to obtain a voluntary manslaughter conviction the People must prove the existence of one of the alternative mitigating mental conditions which the People contend did not exist. By contrast, the murder instruction makes no mention of the mitigating mental condition. These instructions essentially assure that, if the jury follows them, the jury cannot possibly convict a defendant of voluntary manslaughter. The reason is that even if a mitigating mental state is proved, it will have been proved by defendant, not the People.” Reddick, 123 Ill. 2d at 194-95.

The State contends that the alleged Reddick error was harmless as there was no evidence that defendant could have been guilty of manslaughter. The State also urges this court not to apply the Reddick rule retrospectively.

Defendant argues that a Reddick error may not be treated as harmless pursuant to Falconer v. Lane (7th Cir. 1990), 905 F.2d 1129. We disagree; not all Reddick errors are reversible. People v. Riggins (1990), 205 Ill. App. 3d 904; People v. Williams (1989), 205 Ill. App. 3d 751; People v. Carter (1988), 177 Ill. App. 3d 593.

In People v. Carter (1988), 177 Ill. App. 3d 593, we held that the conviction need not be reversed as the Reddick error was harmless beyond a reasonable doubt. The defendant in Carter had not produced sufficient evidence to put the manslaughter defense at issue. (Carter, 177 Ill. App. 3d at 598-600.) According to the defendant, he killed his wife when, after earlier discovering her in bed with another man, she came toward him with a kitchen knife. The parties fought. The defendant eventually disarmed his wife and stabbed her repeatedly. Defendant claimed that the killing was justified as she initially came toward him armed with a knife and that the sight of her in bed with another man was sufficient provocation to warrant his behavior. The court explained that the mental state required in manslaughter is like an affirmative defense. (Carter, 177 Ill. App. 3d at 598; People v. Reddick (1988), 123 Ill. 2d 184, 195-97.) When sufficient evidence of manslaughter is produced by the defense, the burden shifts to the State to disprove the mitigating mental conditions of voluntary manslaughter beyond a reasonable doubt. Carter, 177 Ill. App. 3d at 598-99; Reddick, 123 Ill. 2d at 197.

In Carter, the evidence showed that the defendant was 8 inches taller and 42 pounds heavier than the victim; the defendant stabbed the unarmed victim to death with a knife; there was no evidence, beyond the defendant’s own testimony, to substantiate his manslaughter defense; the victim was stabbed four separate times; and the defendant did not sustain injuries as a result of his alleged struggle with the victim. The court found that this evidence was insufficient to support a manslaughter defense and, therefore, the Reddick error was harmless.

Similarly, in the instant case, the evidence established that defendant was physically larger than Rhonda; defendant was armed with a razor; Rhonda was unarmed; upon examination, it was found that defendant had no visible injuries as a result of his struggle with Rhonda; and other than defendant’s testimony, there was no other evidence to support his version of the events. Further, defendant admitted that he strangled Rhonda after she had fallen to the floor and after he had severely and repeatedly slashed her throat with a razor. He strangled her only after he saw that she was still moving.

We do not find that Rhonda’s verbal threats constitute sufficient provocation for murder nor do we find that, under the circumstances of this case, her alleged initial physical encounter with defendant constituted sufficient provocation for his actions. Therefore, the alleged error was harmless beyond a reasonable doubt.

We need not reach the retroactive application of the Reddick rule issue as we found the error to be harmless beyond a reasonable doubt. However, we note that in People v. Flowers (1990), 138 Ill. 2d 218, the Illinois Supreme Court held that Reddick may not be applied retroactively in collateral review cases. The instant case, however, was presented to this court on direct appeal. Arguably, Reddick may be applied retroactively in direct appeal cases. People v. Riggins (1990), 205 Ill. App. 3d 904.

Next, defendant argues that the trial court erred in admitting 11 slides of the deceased as she appeared at the morgue. The State maintains the slides were necessary and directly relevant to refute the defendant’s self-defense theory. We agree.

Admission of photographs of the deceased into evidence is a question within the sound discretion of the trial court. (People v. Walcher (1969), 42 Ill. 2d 159, 164.) If the photographs have sufficient probative value of a fact in issue, they may be admitted even though gruesome and inflammatory. (People v. Radford (1978), 65 Ill. App. 3d 107, 113-14.) Photographs may be properly admitted into evidence where probative of a defendant’s description of his “tussle” with the victim and his claim of self-defense. People v. Cleveland (1986), 140 Ill. App. 3d 462, 472.

We find that the trial court did not abuse its discretion in admitting the photographs of the deceased, where probative of the self-defense issue. As the State notes, the photographs were the only evidence available to refute defendant’s claim of self-defense.

The next issue defendant raises is whether the trial court erred in allowing Assistant State’s Attorney Ronald Riley to testify regarding his felony review memorandum. First, defendant argues that the assistant State’s Attorney’s references to and testimony from his felony review memorandum amounted to offering the jury his own personal belief in defendant’s guilt. The testimony and memorandum, according to defendant, indicated that the assistant State’s Attorney had approved of the murder charges against defendant. However, upon our review of the record and as the State argues, there is no testimony from the assistant State’s Attorney that he approved of the murder charges.

Second, defendant argues that the trial court improperly admitted the felony review memorandum in question into evidence. However, as the State notes, the trial judge specifically ruled that the memorandum would not go to the jury. Defendant, therefore, was not prejudiced by the memorandum.

The fourth issue raised is whether the trial court committed reversible error in preventing one of defendant’s co-workers from testifying about defendant’s general reputation. The standard for determining whether an error is harmless or requires reversal is whether the alleged error is harmless beyond a reasonable doubt. (People v. Glover-El (1981), 102 Ill. App. 3d 535, 541.) An inconsequential error may be deemed as harmless; or, if the error is more serious, it may be found to be harmless when balanced against the strength of the State’s evidence. People v. Cooper (1989), 188 Ill. App. 3d 971, 973.

In the instant case, Dan Plovanich worked with defendant for approximately one year at the American Red Cross. They went out after working on one occasion, and Plovanich dined at defendant’s apartment once. Plovanich also testified that defendant had been a guest at his wedding. When asked whether Plovanich talked about defendant’s reputation in the community with anyone, he responded “not necessarily, no.”

A defendant’s character can only be proved by evidence of general reputation based upon the witness’ contact with defendant’s neighbors and associates. (People v. Bascomb (1979), 74 Ill. App. 3d 392, 394.) It may not be based upon that witness’ personal opinion. (People v. Moretti (1955), 6 Ill. 2d 494, 523-24.) Plovanich admitted that he had not talked with anyone regarding defendant’s general reputation. Under these circumstances, we do not find that the trial court erred in refusing to admit this aspect of Plovanich’s testimony. Moreover, even if there was error, it was inconsequential in light of the overwhelming evidence against defendant. Therefore, the alleged error was harmless beyond a reasonable doubt. People v. Cooper (1989), 188 Ill. App. 3d 971, 973.

Defendant next argues that the repeated testimony concerning the deceased’s 14-month-old child, Leslie Barnes, deprived him of a fair trial. Donna Johnson testified that when she went to the deceased’s apartment, she found Leslie sitting on top of her mother’s body. The child was caked with blood.

Chicago police officer Linnea Laskey testified that the child left a trail of bloody foot and hand prints about the apartment, including the telephone, cabinets and refrigerator. There was also testimony that one of the trails led to an overturned garbage pail from which the child had apparently been eating. This testimony, however, was stricken. Chicago police officer Alan Szudarski also testified that he found bloody trails about the apartment. He also noted that the apartment was hot and humid at the time the child was found.

Defendant objects to the State’s inference that the child may have suffered physical injury. He argues that the prejudicial impact of such testimony denied him a fair trial. This is based upon speculation that the jury became distracted by this irrelevant evidence. The side issue of the child’s ordeal, defendant argues, is tantamount to an additional crime which, in effect, created another issue for the jury to ponder.

Evidence should be excluded if the probative value of such evidence is outweighed by its prejudicial and inflammatory effect upon a jury. (People v. Reimnitz (1979), 72 Ill. App. 3d 761, 762-63.) However, the error in admitting such evidence will not warrant reversing the conviction if it is harmless beyond a reasonable doubt. (People v. Glover-El (1982), 102 Ill. App. 3d 535, 541.) The error in admitting certain evidence may be harmless if the evidence against defendant is overwhelming. Glover-El, 102 Ill. App. 3d at 541.

In the instant case, we find that the jury would not have rendered a different verdict had the testimony complained of not been entered into evidence. Moreover, we will not reverse defendant’s conviction based upon speculation as to what might have been created in the jurors’ minds concerning the child’s condition.

Finally, defendant argues that the trial court erred in its consideration of defendant’s six prior arrests for rape and a 1967 committal. However, as the State notes, defendant did not object at the sentencing hearing when the State advised the court of this information. It was only later in the proceeding that defendant objected to the State’s argument on grounds that the rape victims suffered permanent psychological damage. The issue of the introduction of defendant’s prior criminal history is, arguably, waived.

Moreover, “information which may have been irrelevant or extremely prejudicial on the question of guilt might be relevant and admissible in a sentencing hearing.” (People v. Free (1983), 94 Ill. 2d 378, 426.) As we recently held in People v. Eshaya (1986), 144 Ill. App. 3d 757, 766, evidence of prior arrests which do not result in convictions may be admissible at the sentencing phase of a trial. Sentencing courts are allowed great discretion in the type of evidence to be considered in determining the extent of punishment to be imposed. Eshaya, 144 Ill. App. 3d at 766.

In light of the overwhelming evidence against defendant and the fact that defense counsel had referred to these alleged rape incidents at the sentencing hearing, we do not find that the trial court erred in its consideration of this prior misconduct.

For the foregoing reasons, the decision of the circuit court is affirmed. As part of our judgment, we grant the State’s request that defendant be assessed $75 as costs and fees for this appeal, pursuant to People v. Agnew (1985), 105 Ill. 2d 275, and People v. Nicholls (1978), 71 Ill. 2d 166.

Affirmed.

LINN and JIGANTI, JJ., concur.


author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY DEAN, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—0882
    Opinion filed December 14, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Robert Fox and Aaron L. Meyer, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and Miles J. Keleher, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Following a bench trial defendant was found guilty of unlawful use of weapons and sentenced to one year’s probation. (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1(a)(7).) On appeal, defendant contends that he was denied equal protection of the laws under the weapons statute and that the State failed to prove him guilty beyond a reasonable doubt.

At the trial, Officer Carl Loeffler testified that he responded to a radio dispatch to assist other officers at 10 a.m. on August 16, 1987. After meeting with the officers near the intersection of Homan and Harrison Streets in Chicago, Officer Loeffler proceeded down an alley behind Lexington Street. At the rear of 3420 West Lexington, Loeffler heard voices and the sound of the slide operation on a shotgun. From a crouched position Loeffler observed defendant clearly demonstrating to several other individuals how to load and unload a sawed-off shotgun. He then radioed this information to his fellow officers.

Officer Mark Vail testified that he and another officer approached the front of the residence at 3420 Lexington to investigate a report of a man with a weapon. After receiving the message from Loeffler, Vail ran to the rear of the property, where he observed defendant holding a shotgun and operating the slide mechanism. Defendant and others fled. Defendant was stopped after he handed the shotgun to Edward Boyce. Boyce was apprehended inside the second-floor apartment and the shotgun was recovered. Boyce told Vail that he owned the shotgun. The barrel length of the shotgun measured 14 inches.

Defendant testified that on the morning of his arrest he observed Boyce with the shotgun in his backyard of his home on Lexington. Defendant claimed that Boyce was trying to get rid of the gun when he saw the police. Defendant denied touching the gun.

Darryl Vanardo, defendant’s nephew, testified that he observed Boyce in the yard with the shotgun but did not see the defendant with the gun. When Vanardo observed a policeman “sneaking up with his gun out,” he called out that police were there and ran inside.

After assessing defendant’s testimony as unconvincing, the trial court found defendant guilty.

Defendant first claims that the weapons statute violates his constitutional right to equal protection under the laws. Defendant’s second contention is also based on his interpretation of the weapons statute. We will deal with both contentions together. In response, the State incorrectly argues that the constitutional issue has been waived because it was not previously raised. People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221.

Under defendant’s novel interpretation of the weapons statute, he claims that the statute violates his right to equal protection of the laws because sections 24 — 1(a)(4) and 24 — l(a)(10) of the Criminal Code allow a person to possess a firearm while on his own land or in his own abode whereas section 24 — 1(a)(7), under which he was convicted, fails to permit this exception. (Ill. Rev. Stat. 1987, ch. 38, pars. 24 — 1(a)(4), (a)(7), (a)(10).) Defendant contends that he was charged and convicted under only section 24 — 1(a)(7), which does not provide the exception to homeowners with firearms on their own property. We, however, reject defendant’s interpretation of the statute and corresponding constitutional analysis. Section 24 — 1(a)(7) provides that a person in possession of a sawed-off shotgun (a shotgun with a barrel less than 18 inches long) has committed a crime. No exceptions are allowed under this section because such weapons are considered to be inherently dangerous to human life. (People v. Stankovich, (1974), 20 Ill. App. 3d 162, 313 N.E.2d 276.) Our review of the statute indicates that it is sawed-off shotguns, not persons, which are treated differently by the statute. No constitutional violation is created by such disparate classification of firearms. The section of the statute under which defendant was charged and convicted treats alike all persons who carry sawed-off shotguns, and it creates no unconstitutional difference in treatment. Since defendant was not charged under the other two sections he notes and he has provided no legal support for his interpretation of the statutory framework, we refuse to find any constitutional infringement.

We also reject defendant’s second contention that sections 24 — 1(a)(4) and 24 — l(a)(10) of the Criminal Code allow persons to possess sawed-off shotguns while on their own land or in their own homes. Defendant again has provided no legal authority for this proposition and presents instead a statutory construction argument which we do not accept. The words “or other firearms,” which exist in both sections 24 — 1(a)(4) and 24 — l(a)(10) as part of the exception provided, do not include sawed-off shotguns. Such weapons are contraband per se. (People v. Wright (1986), 140 Ill. App. 3d 576, 488 N.E.2d 1344.) As the State points out, the logical extension of defendant’s argument would mean that a person could possess automatic weapons since they are “firearms” while in their own home or on their own land, and we are certain this was not the legislative intent. We will construe section 24 — 1(a)(7) of the Criminal Code in conjunction with previous Illinois opinions which make it a crime to possess a sawed-off shotgun in one’s abode. Wright, 140 Ill. App. 3d 576, 488 N.E.2d 1344.

We will also treat defendant’s next two contentions together. Defendant claims that he was not proved guilty beyond a reasonable doubt of (1) unlawful use of a weapon or (2) knowingly possessing a sawed-off shotgun. Defendant contends that the trial court weighed the evidence incorrectly, misunderstood defendant’s testimony and that the police officers’ testimony was impeached. Defendant also claims that he never had actual possession of the shotgun. Both police officers testified that they observed defendant holding the shotgun and demonstrating the slide mechanism. The officers also testified that defendant handed the gun to Boyce before fleeing. Both defendant and his nephew saw the police approach. While the latter both denied defendant had possession of the shotgun, the trial court need not accept defendant’s version of events. It is the responsibility of the trier of fact to resolve inconsistencies or conflicts in testimony. (People v. Crespo (1983), 118 Ill. App. 3d 815, 455 N.E.2d 854.) The trier of fact is not required to accept defendant’s exculpatory testimony but must consider the evidence as a whole, weighing all the circumstances of the incident in assessing the possibility of the accused’s version of events. (Crespo, 118 Ill. App. 3d 815, 455 N.E.2d 854.) When there is a challenge to the sufficiency of the evidence, the relevant question becomes whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt when viewing the evidence in the light most favorable to the prosecution. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.) In this case, defendant has been unable to persuade us that the trial court erred in its assessment of the evidence.

Accordingly, the judgment of the circuit court is affirmed, and as part of our judgment, we assess defendant $50 as cost of this appeal.

Judgement affirmed.

LORENZ, P.J., and COCCIA, J., concur.