author: JUSTICE McLAREN

text:
      In re ESTATE OF JOEL F. KIRK, Deceased (Cheryl A. Kirk O’Connor, Indiv. and as Guardian of the Estate and Person of Joel F. Kirk II, a Minor, et al., Petitioners-Appellants v. Harris Bank Barrington, N.A., Respondent-Appellee).
    Second District
    No. 2 — 92—0971
    Opinion filed March 17, 1993.
    Rehearing denied April 12, 1993.

      Bruce G. Wilkins, of O’Brien, Hanrahan, Wojcik & Fay, of Woodstock, for appellants.
    Paul T. Lahti, of Lahti & Cole, of Crystal Lake, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Cheryl A. Kirk O’Connor, individually and as guardian of the estate and person of Joel E Kirk II, minor, Lynda M. Kirk Jones, Lisa A. Kirk Staver, and Debra Lee Kirk Madenis, petitioners, appeal from an order denying their petition to remove the Harris Bank Bar-rington, respondent, as executor of the estate of Joel E Kirk. For the following reasons, we affirm.

Joel F. Kirk died on July 19, 1989, in Sioux City, Iowa, in the performance of his duties during the crash landing of United Air Lines Flight 232. Kirk was survived by his daughters, Cheryl A. Kirk O’Connor, Lisa A. Kirk Staver, and Lynda M. Kirk Jones, and two children who were minors at the time of their father’s death, Debra L. Kirk Madenis and Joel F. Kirk II. O’Connor was appointed guardian of the estate and person of the minor children.

Decedent’s will, dated December 21, 1979, nominated the First National Bank and Trust Company of Barrington, Illinois, and Janet L. Kirk as executors. The bank was nominated as guardian of the estate of any minor child. Janet L. Kirk and decedent were married and divorced on two separate occasions. Their second marriage was dissolved on July 13,1988.

On September 11, 1989, the Harris Bank Barrington, formerly known as the First National Bank and Trust Company of Barrington, Hlinois, filed a petition for probate of will and for letters testamentary. On September 26, 1989, the court admitted Kirk’s will, dated December 21, 1979, to probate and appointed the Harris Bank Bar-rington as executor of the estate of Joel F. Kirk.

On September 10, 1990, petitioners filed a petition for removal of the Harris Bank Barrington as executor of the estate of Joel F. Kirk. Thereafter, the court issued a citation ordering the Harris Bank Bar-rington to show cause why it should not be removed as executor of the estate of Joel F. Kirk. On July 24, 1992, the court entered an order granting the executor’s motion for a “directed verdict [sic]” on the basis that petitioners failed to sustain their burden of proving the executor should be removed. The petition for removal was denied and petitioners appealed.

Petitioners first contend that the trial court erred by finding that the executor denied all allegations contained in the petition to remove. The executor responded to each paragraph by denying “any and all allegations of wrong doing, ill-will, or breach of duty.” Petitioners contend that this format was too general as section 2 — 610(a) of the Code of Civil Procedure requires an explicit denial of each allegation of fact contained in the pleading to which it relates. 111. Rev. Stat. 1989, ch. 110, par. 2 — 610(a).

We find petitioners’ contention meritless. Supreme Court Rule 136 allows a pleader to deny all the allegations in a paragraph “without paraphrasing or separately describing each allegation denied.” (134 Ill. 2d R. 136(a).) We have reviewed the executor’s response and find it in compliance with Supreme Court Rule 136(a). Furthermore, the petitioners did not file any motions in the trial court attacking the executor’s response. Issues not raised in the trial court are deemed waived and cannot be argued for the first time on appeal. (In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 279.) Therefore, we deem the issue waived.

Next, petitioners contend that the trial court failed to follow proper procedure at the hearing on the petition to remove the executor. At the hearing on the petition for removal, petitioners were required to present evidence in support of their petition for removal. At the close of petitioners’ evidence, the court stated that it was granting the executor’s motion for a “directed verdict [sic],” based on a finding that petitioners failed to sustain their burden of providing evidence establishing reasonable grounds for removal. Thus, the petition to remove the executor was denied.

We note that the trial court stated that it was granting the executor’s motion for a “directed verdict [sic].” Since the hearing was before a judge and not a jury, the executor’s motion is properly termed a motion for a directed finding, or a motion for judgment at the close of plaintiff’s case. (111. Rev. Stat. 1989, ch. 110, par. 2 — 1110.) The trial court should apply a two-step analysis in ruling on this type of motion. First, the trial court determines whether the plaintiff has presented a prima facie case by presenting at least some evidence essential to each element of the cause asserted. (Zannini v. Reliance Insurance Co. of Illinois, Inc. (1992), 147 Ill. 2d 437, 449; Wehde v. Regional Transportation Authority (1992), 237 Ill. App. 3d 664, 675.) If so, the court must weigh the evidence, pass on the credibility of the witnesses, draw reasonable inferences and generally consider the weight and quality of the evidence. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1110; Wujcik v. Gallagher & Henry Contractors (1992), 232 Ill. App. 3d 323, 328.) If the plaintiff has not presented a prima facie case, the trial court should grant the motion and enter judgment in the defendant’s favor. (Zannini, 147 Ill. 2d at 449.) The trial court’s decision to direct a judgment will not be reversed on appeal unless it is against the manifest weight of the evidence. Kokinis v. Kotrich (1980), 81 Ill. 2d 151,154.

Petitioners contend that the procedure followed by the trial court was incorrect because it required petitioners to present a prima facie case for removal by providing evidence establishing reasonable grounds for removal. According to section 23 — 3 of the Probate Act of 1975, proceedings to remove an executor are commenced when the court issues a citation directing the representative to show cause why he should not be removed from office. (111. Rev. Stat. 1989, ch. lHP/a, par. 23 — 3(a).) Contrary to petitioners’ contention, the issuance of a citation does not place the burden of proving fitness to retain office on the executor. Rather, the challenged representative must answer the citation by admitting or denying the allegations in support of removal. If the representative admits the allegations, and the admissions establish a prima facie showing of removal based on reasonable grounds for removal, the representative bears the burden of proving fitness to retain office. If the representative denies the allegations of the citation, as the executor did in this case, the court commences proceedings on the petition for removal by conducting an evidentiary hearing. (See In re Estate of Glenos (1964), 50 Ill. App. 2d 89, 95.) At the hearing, petitioners bear the burden of providing a prima facie case for removal by introducing evidence establishing reasonable grounds for removal. If the petitioners sustain their burden, the burden then shifts to the executor to prove his fitness to retain office. In re Estate of Lucas (1978), 71 Ill. 2d 277, 282.

In this case, the executor was not required to prove its fitness to retain office. The trial court granted the executor’s motion for a directed finding on the basis that petitioners failed to present evidence establishing reasonable grounds for removal. We find the procedure followed by the trial court was consistent with that required by Estate of Lucas, the most recent supreme court case discussing this issue.

Next, petitioners claim that the court erred in failing to remove the executor. Section 23 — 2 of the Probate Act specifies the following grounds by which the court may remove a representative:

“If the representative:
(1) is acting under letters secured by false pretenses;
(2) is adjudged a person subject to involuntary admission under the Mental Health and Developmental Disabilities Code or is adjudged a disabled person;
(3) is convicted of a felony;
(4) wastes or mismanages the estate;
(5) conducts himself in such a manner as to endanger his co-representative or the surety on his bond;
(6) fails to give sufficient bond or security, counter security or a new bond, after being ordered by the court to do so;
(7) fails to file an inventory or accounting after being ordered by the court to do so;
(8) conceals himself so that process cannot be served upon him or notice cannot be given to him;
(9) becomes incapable of or unsuitable for the discharge of his duties; or
(10) there is other good cause.” (111. Rev. Stat. 1989, ch. lHUAs, par. 23 — 2(a).)

The trial court’s decision to remove an executor will not be disturbed on review unless it is against the manifest weight of the evidence. (In re Estate of Debevec (1990), 195 Ill. App. 3d 891, 897.) Petitioners contend that the executor should have been removed because it failed to properly discharge its duties and wasted or mismanaged the estate. Petitioners assert that the executor’s actions and attitude toward the petitioners indicate thoughtlessness and hostility. We will address each of petitioners’ assertions in turn.

GUARDIANSHIP OF DECEDENT’S MINOR CHILDREN

Petitioners assert that the executor should be removed for attempting to remove Cheryl O’Connor as guardian of the estates of Joel F. Kirk II and Debra L. Kirk, minor children of the decedent. Decedent’s will nominated the First National Bank and Trust Company of Barrington, now known as the Harris Bank Barrington, as guardian of the estate of his minor children. The petitioners’ brief devotes 10 pages to a discussion of the rights to custody and guardianship of Janet Layoff, the decedent’s former wife. However, the executor was not seeking custody of the minor children. The executor only sought guardianship of the estate of the minor children, as provided by decedent’s will. Our review of the record reveals that the petitioners failed to present sufficient evidence indicating how or why seeking guardianship pursuant to the testator’s declared intent constitutes cause for removal.

Petitioners also claim that the executor did not act in good faith by using the same attorney in its petition to be appointed guardian of the estate of the minor children and as executor of the decedent’s will. An attorney may not undertake employment which constitutes a conflict of interest, no matter how honest his motives or intentions might be. (In re La Pinska (1978), 72 Ill. 2d 461, 469.) However, the conduct of the attorney is not at issue. The sole issue concerns the conduct of the executor. Contrary to petitioners’ contention, the Harris Bank may act as both executor of decedent’s will and as guardian of the estate of the minor children. (See Stuart v. Continental Illinois National Bank & Trust Co. (1977), 68 Ill. 2d 502 (the bank and two sisters of decedent served as co-executors and cotrustees of decedent’s will and trust).) We determine that petitioners failed to present sufficient evidence indicating that the executor was not acting in the best interests of the estate by petitioning for guardianship of the estate of the minor children pursuant to the nomination in the will.

UNITED STATES SAVINGS BONDS

Next, petitioners claim that the executor mismanaged the estate by the manner in which it distributed United States Savings Bonds belonging to decedent. The executor collected 37 savings bonds, copied them, and mailed them to Lynda Jones, the successor titleholder designated on the face of the bonds, who apparently received them approximately two weeks later. Petitioners cite no authority indicating that the executor’s actions constituted mismanagement. Our review of the record reveals that no harm resulted by handling the estate in this manner. Thus, petitioners failed to sustain their burden of establishing reasonable grounds for removal.

SALE OF PERSONAL PROPERTY

Petitioners contend that the executor mismanaged the estate by selling personal property. The executor sold a tractor and equipment for $3,500 with permission of the petitioners. Although petitioners fail to state how the executor’s actions caused harm, they contend that the executor should be removed for failing to advise them of their rights to this property as beneficiaries under decedent’s will.

An executor has a fiduciary duty to advise persons of their rights as beneficiaries. (In re Estate of Nuyen (1982), 111 Ill. App. 3d 216, 223.) Decedent’s will specifically devised “personal and household effects not otherwise effectively disposed of, such as jewelry, clothing, automobiles, furniture, furnishings, silver, books and pictures, including policies of insurance” to his children that survived him for 30 days following his death. Assuming arguendo petitioners were entitled to the farm equipment under the terms of the will, there is no evidence in the record that the executor breached his fiduciary duty and caused harm to the estate, since the sale was made with petitioners’ consent and no harm has been alleged or proved.

INVENTORY

Petitioners also object to the inventory filed by the executor. The executor designated property in decedent’s home as property of the estate. Petitioners object on the basis that the property belonged to one of the five persons living in the home and should not have been included as property of the estate.

Section 14 — 1 of the Probate Act requires the representative of the estate to file a verified inventory of the real and personal property comprising the estate within 60 days of the issuance of the letters of office. (111. Rev. Stat. 1989, ch. llO1^, par. 14 — 1.) Once an asset has been inventoried in an estate, a party claiming title to or an interest in an asset preserves his interest by filing a claim within the statutory period. (Ill. Rev. Stat. 1989, ch. 110 V2, par. 18 — 1; Ilg v. Continental Illinois National Bank & Trust Co. (1968), 94 Ill. App. 2d 143, 150.) Petitioners contend that they objected to the inventory because it contained horses, a dirt bike, and a mini bike which they claimed as personal property.

Our review of the record reveals that petitioners did not file a claim with the court within the statutory period. Contrary to the executor’s contention, this does not bar the petitioner’s alleged objection to the inventory. Filing an inventory with the court is a preliminary investigation to determine probabilities, not ultimate rights. (In re Estate of Julian (1991), 227 Ill. App. 3d 369, 380.) An asset mistakenly inventoried as part of the estate does not become estate property merely by failing to file a claim within the statutory period. (See In re Estate of Toigo (1969), 107 Ill. App. 2d 395, 404.) Nevertheless, the issue before the court is whether there was sufficient evidence of misconduct by the executor in filing the inventory that the court’s decision not to remove the executor was against the manifest weight of the evidence. Our review of the record reveals that petitioners did not sustain their burden of proving misconduct by the executor, as the record is devoid of evidence indicating that the executor’s inventory included property where title was held in persons other than decedent.

CHILD’S AWARD

Petitioners also object to the manner in which the executor handled the child’s award. The executor filed a petition for child’s award. (111. Rev. Stat. 1989, ch. llOVa, par. 15 — 2.) Thereafter, the guardian of decedent’s minor children, Cheryl O’Connor, sought to waive the award because she did not want personal property of the estate sold to provide funds for the child’s award. On February 9, 1990, the court entered an award of $14,000 for the two minor children. Petitioners claim that the executor had a fiduciary duty to inform Mrs. O’Connor of her rights concerning the minors and that it breached this duty by failing to contact Mrs. O’Connor to request information concerning the status of the minors prior to decedent’s death.

Section 15 — 2 of the Probate Act, in effect at the time of decedent’s death, directed the court to provide to minor children of a decedent “a sum of money as the court deems reasonable *** for the period of 9 months after the death of the decedent in a manner suited to the condition in life of such children and to the condition of the estate.” (111. Rev. Stat. 1989, ch. lKP/a, par. 15 — 2(b).) The Act specified the amount of the award to be no less than $2,000 for each minor child, together with an additional sum not less than $10,000, to be divided equally among the minor children. 111. Rev. Stat. 1989, ch. IIOV2, par. 15 — 2(b).

This court has held that the child’s award is a statutory requirement and not a matter for the trial court’s discretion. (In re Estate of Meyers (1983), 113 Ill. App. 3d 886, 890.) Therefore, the executor’s request for a total of $14,000 was proper, as it was the minimum amount required by statute. Accordingly, we find no evidence indicating that the executor mismanaged the estate by complying with the statute and petitioning for a child’s award in the minimum amount provided by statute.

TRUST

On September 14, 1989, petitioners sought to remove the Harris Bank Barrington as trustee of decedent’s trust. Instead, the Harris Bank resigned as trustee on November 10, 1989, because the trust had no assets or income and would not be funded under the pour-over clause of decedent’s will. The Harris Bank required an original acceptance before it would turn over the original trust document to a successor. Petitioners contend that the executor attempted to obstruct the transfer of the trust to another bank which “raises doubt as to the efficient administration of the estate.”

Petitioners cite no authority for the proposition that a corporate fiduciary should be removed as executor because of its resignation as trustee of an unfunded trust. We determine the court’s directed finding in this regard was not against the manifest weight of the evidence as there is no evidence in the record indicating misconduct by the executor to the detriment of the estate.

SALE OF REAL ESTATE

Decedent’s residence was appraised at $200,000 and was listed for a sale price of $218,000 on January 2, 1990. In mid-January, the executor rejected an offer of $185,000 and an offer of $187,500 without counteroffers. On April 23, 1990, an offer of $195,000 was made. The executor counteroffered for $198,000. The home sold for $197,000. The real estate broker waived $1,000 of her commission to allow the estate to receive $198,000 for the sale. Petitioners contend that the executor mismanaged the estate by allowing the property to be sold under its appraised value.

The executor filed a petition to approve the sale of the real estate with notice to all interested parties. An order approving the sale was entered on June 8, 1990, without objection. Further, petitioners concede that the home was located near the site of a proposed solid waste landfill which inhibited the marketability of the property. We determine that the trial court’s directed finding in this regard was not against the manifest weight of the evidence as there is insufficient evidence that the executor mismanaged the estate in selling decedent’s residence.

INHERITANCE TAX

Petitioners contend that the executor wasted assets of the estate because a penalty of $468.88 was incurred for the late filings of Federal and State inheritance tax. The executor explains the late filings by the difficulty petitioners experienced in gathering the $92,900 needed for taxes. According to the executor, it expected the taxes would be paid from the proceeds of the sale of decedent’s home and from the proceeds of an insurance policy. Petitioners assert that the executor acted improperly by requesting that petitioners gather the $92,900 over an Easter weekend. The record reveals that the executor requested an extension of time to file the return. An extension was eventually granted, and the late penalty was refunded and returned to the estate.

An executor of an estate is responsible for paying inheritance taxes due and owing after distribution under a will. We do not argue with petitioners that these taxes should be paid on time. The executor in In re Estate of O’Brien (1988), 166 Ill. App. 3d 285, 288, was removed for failing to claim $75,000 in pension proceeds for the estate and for incurring $35,000 in penalties for the late payments of taxes. However, O’Brien did not establish a per se rule that an executor should be removed for paying taxes late, especially when there is evidence in the record that the estate was reimbursed. While we do not condone the executor’s actions in filing the taxes late, our review of the record reveals that the estate suffered no harm, as the late penalty was reimbursed to the estate.

Finally, petitioners contend that the court erred in failing to find other good cause for removal of the executor. Petitioners contend that the executor should have been removed because the attorney for the executor, Mr. Paul T. Lahti, was hostile to petitioners and was not acting with due care to protect the interests of the beneficiaries, as he allegedly stated in a meeting with petitioners that he was “in it for the money.” Petitioners cite no authority indicating that this action constitutes “other good cause” for removal of the executor, nor how Lahti’s statement may be imputed to the executor.

Petitioners may desire a different executor because they do not like the manner in which the Harris Bank Barrington has proceeded in the probate of their father’s estate. However, we must honor decedent’s intent as gleaned from the terms of his last will and testament. An executor may not be removed merely because the beneficiaries of the will might have handled the estate differently and prefer a different executor. Section 23 — 2 of the Probate Act specifies the causes for which the court may remove an executor. (111. Rev. Stat. 1989, ch. IIOV2, par. 23 — 2.) The petitioning party bears the burden of proving a prima facie case for removal by presenting evidence of one of these causes and establishing reasonable grounds for removal. (Lucas, 71 Ill. 2d at 282.) We agree with the trial court that petitioners failed to sustain their burden of proving a prima facie case for removal by failing to provide evidence establishing reasonable grounds for removal. Accordingly, the judgment of the trial court was not against the manifest weight of the evidence.

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

Affirmed.

INGLIS, P.J., and QUETSCH, J., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL DRAHEIM, Defendant-Appellant.
    Second District
    No. 2 — 91—0630
    Opinion filed March 4, 1993.

      Peter B. Nolte, of Rockford, for appellant.
    Roger T. Russell, State’s Attorney, of Belvidere, and Ruth Stern Geis, of Chicago (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

A jury convicted defendant, Michael Draheim, of one count of unlawful delivery of a controlled substance in an amount more than 1 gram, but not more than 15 grams in violation of section 401(bX2) of the Controlled Substances Act (111. Rev. Stat. 1989, ch. 56V2, par. 1401(bX2)). He was sentenced to a term of six years with the Department of Corrections and fined $2,250. Defendant presented an entrapment defense and asserts on appeal that (1) the State failed to prove beyond a reasonable doubt that he was not entrapped, (2) he was denied his sixth amendment right to confront witnesses when the trial court refused to aUow defense- counsel to inquire as to monies paid to the informant and how many other drug deals she had set up, (3) the State’s comments as to defendant’s character during closing argument exceeded the bounds of propriety and denied defendant a fair trial, and (4) the defendant’s sentence must be vacated and the cause remanded for resentencing where, he alleges, the trial court considered that, absent a statement of guilt by the defendant, a sentence other than one involving incarceration would not be imposed. We affirm.

Wendy Schindler was a confidential source for the Illinois State Police Department of Criminal Investigation (DCI) and testified for the State. According to the record, she became an informant because she had been a drug dealer herself, realized what happened to her, and did not want Michael Draheim to “die as a drug dealer.” She sold drugs from May 1988 through November 1988 to support her habit and, according to the witness, quit using drugs in February 1989. She resided in Belvidere and had worked at the Chrysler Assembly Plant in Belvidere for approximately 121/2 years. She had known the defendant, Michael Draheim, for years.

Wendy was referred to the DCI by a police officer that she had been in contact with regarding a battery charge for which she was the victim. According to the record, she began working as an informant in April 1989 “because [she] wanted to give a little bit back to the community and to where [she] worked to try to make it a better place to live.” She had never been arrested at any time for selling or dealing cocaine. There were no pending charges that she knew of that prompted her to work with DCI as an informant.

Schindler testified that she had phoned the defendant between noon and 1 p.m. on February 7, 1990, and asked if he would sell her and her friend, Karen Lowrey, one-eighth of an ounce of cocaine. Defendant responded that he only had one-sixteenth of an ounce but he would try to get more. He indicated that he would sell one-sixteenth of an ounce for the sum of $100, and Schindler then suggested that they all meet at Grandpa’s Restaurant parking lot at approximately 3 p.m.

After that phone conversation, the record reveals, Schindler testified that she contacted her “source” with DCI, Officer Berry, and told Officer Berry of the phone conversation that she had with the defendant. She then met Inspector Karen Lowrey, Sergeant Joe Rollins, and Officer Leon Berry at approximately 3 p.m. at the Oxford Inn parking lot. There, she and her vehicle were searched. Lowrey was currently employed by the Freeport police department and had been so for the past 25 months. For the previous 12 months Lowrey had been assigned to the Illinois State Police Narcotics Task Force. After the searches, Schindler and Lowrey drove to Grandpa’s Restaurant parking lot in Belvidere. They arrived at approximately 3:15 p.m. and waited there for defendant, who pulled into the lot in a blue pickup truck. According to the record, she and Lowrey got out of her car, walked over to defendant’s truck, and the defendant said, “get in.” The defendant was sitting in the truck and had an approximately three-year-old girl sitting on the seat next to him. Schindler testified that she got into the truck and Lowrey stood outside the truck for a “couple of minutes” and then Lowrey returned to Schindler’s car.

The defendant asked whether she had the money. Schindler called Lowrey over to the passenger side of the truck, telling the defendant that Lowrey had the money. Lowrey asked defendant how much it was, to which defendant replied $100. Defendant then took out a baggy containing what later was revealed to be cocaine and gave it to Lowrey by reaching over the little girl and Schindler. Schindler testified that Lowrey then handed the defendant $100 and watched him count the money. Defendant stated that he might be able to get one-sixteenth of an ounce later on.

Schindler testified that she had made only one telephone call to the defendant prior to or on February 7, 1990, in order to set up the cocaine purchase from defendant. She admitted that she was alone when she made the call to defendant and that the phone call was not monitored in any manner. Furthermore, the only information Officer Berry had concerning the call was what Schindler told him. Schindler stated that, as far as she knew, defendant had never seen Lowrey before. Despite this, defendant gave Lowrey the cocaine on February 7, 1990, rather than giving it to Schindler, whom he did know.

Schindler admitted that she had sold drugs to other Chrysler Corporation employees. In fact, she sold drugs to anyone who would purchase from her. Schindler also testified that she was acquainted with Darrell Hubbard, who, when she was seeing him in 1987, 1988, and 1989, was a cocaine dealer. Schindler testified that if she was out of cocaine she would get it from Darrell for free.

Schindler testified that she received $40 for each transaction that she set up for DCI, but the court sustained objections by the State when defense counsel asked the witness how many people she had set up, how many times she had been paid $40, and whether she had ever set up her friend Darrell Hubbard. Schindler testified that she saw defendant many times at Chrysler Corporation and she did, on many occasions, ask him to sell her cocaine. She admitted to calling the defendant once on the telephone between the February 7, 1990, transaction and March 2, 1990, in order to induce him to sell her more cocaine. On March 2, 1990, Schindler called defendant again to ask him to sell her cocaine, and they agreed to meet later that day. Ultimately, she and Karen Lowrey met the defendant at the Chrysler Corporation parking lot at approximately 3:15 p.m. There, defendant gave Schindler two baggies containing cocaine and received $200 from Lowrey. Lowrey then asked defendant whether they could purchase one ounce. Defendant said that he would see what he could do and would get in contact with Schindler. Schindler also testified that following the March 2, 1990, incident she asked the defendant on several occasions to sell her even greater quantities of cocaine, but he refused.

Lowrey then testified. Lowrey’s testimony regarding the events of the February 7, 1990, and March 2, 1990, transactions with defendant corroborated Schindler’s testimony as to the aspects of the transaction for which Lowrey was present. Lowrey identified defendant’s exhibit No. 2 as a report she wrote on February 7, 1990, regarding the details of the transaction at Grandpa’s Restaurant parking lot. She admitted that in the report she indicated that she never exited Schindler’s vehicle. Furthermore, she admitted that the report stated that Schindler exited the vehicle and walked to defendant’s truck, and then Schindler and defendant walked back to Schindler’s car, where Lowrey had remained.

Following this testimony, the State rested and the defendant’s motion for directed verdict, based upon the defense of entrapment, was denied. Defendant was then called as a witness on his own behalf. Defendant testified that he had lived his entire life in Belvidere and presently lived there with his girlfriend and her daughter. He stated that he had been employed by Chrysler Corporation for approximately 20 years. He testified that he had known Schindler and other members of her family for over 20 years, saw her from time to time in Belvidere, and considered her a friend.

Defendant testified that in 1988 he began using cocaine and used it once or twice a week, or sometimes not at all. When he started using cocaine he purchased it from Schindler because the two would often meet at Grandpa’s Restaurant after getting off work at Chrysler. It was Schindler who initiated the first conversation regarding cocaine by telling defendant that she could get it for him if he wanted it. During 1988 and 1989, he purchased it approximately 12 times from her. During 1988 she introduced defendant to her friend Darrell. She identified Darrell as her source of cocaine.

Defendant testified that, during the month of January 1990, defendant had several telephone conversations with Schindler and saw her several times at work. In all of these conversations she asked him to purchase cocaine for her. He replied that he could not get it from anyone and that she should try to buy some from Darrell. He estimated that there were at least 15 to 20 telephone calls from Schindler and four or five occasions when she made the same request at the Chrysler Plant while both of them were at work. There were additional similar phone calls from Schindler to defendant in February 1990. According to the record, on several occasions she mentioned the fact that he “owed her a favor because she had gotten it for [him] before.” He testified that he agreed to sell her one-sixteenth of an ounce on February 7, 1990, because he was tired of her pestering him. He got in touch with Darrell and purchased one-sixteenth of an ounce of cocaine from him for $100. He then met Schindler and Low-rey at the Grandpa’s Restaurant parking lot on February 7, 1990, and exchanged the one-sixteenth of an ounce of cocaine for $100. Defendant testified that Lowrey never got out of Schindler’s car.

Defendant testified that, following this incident, Schindler again called the defendant on numerous occasions asking him to purchase more cocaine for her. On March 2, 1990, he purchased two-sixteenths of an ounce from Darrell for the price of $200. He met Schindler and Lowrey in the Chrysler parking lot and gave Schindler the cocaine in exchange for $200. After the exchange, he started walking toward the plant to go to work, and Lowrey said that she would need an ounce on Friday. Defendant did not respond. Schindler called defendant many other times following March 2, 1990, and requested more cocaine, but defendant refused.

Defendant testified that he never made any money on the transactions and only went through with the transactions because Schindler was a friend of his. He testified that he never sold cocaine to other people and had never been a drug dealer or cocaine seller of any kind. Following this testimony, the defense rested and defendant again moved for directed verdict. This motion was denied. The jury then deliberated and returned a verdict of guilty.

At defendant’s sentencing hearing, following the denial of defendant’s post-trial motion, the State called a witness named Charles Martin Arnold. Arnold was, at that time, incarcerated in the Boone County jail, serving a 364-day sentence for the offense of driving while his license was revoked. Arnold testified that, in the autumn of 1989, he approached a police officer for the purpose of making a “deal” with them in order to get his license back. He then became an informant for the DCI. Arnold also testified that he hoped to have his jail sentence reduced by virtue of his cooperation with police.

Arnold testified that on December 20, 1989, he drove to. the defendant’s home on Ipsen Road, accompanied by Agent Mosback. Arnold went Into defendant’s house, obtained one-eighth of an ounce of cocaine, and took it outside to the car where Agent Mosback was waiting. Agent Mosback then gave Arnold $250, which Arnold took to the defendant in the house.

Arnold also testified that he had purchased cocaine from defendant, accompanied by a person named Jim Maschke, two times in 1989. The first time was in August. After that, Arnold started working with the DCI. The second purchase was in December. When Arnold related to Agent Mosback that he had made a cocaine purchase without consulting the DCI in December, Agent Mosback told him never to do that again.

Agent Mosback testified that he accompanied Arnold to an address on Ipsen Road on December 20, 1989, and that at that time Arnold went into the house. He remained there a short time, less than a minute, and returned to the car with a plastic bag containing a white substance. Agent Mosback gave Arnold $250 which Arnold then took into the house. Mosback denied ever having been told by Arnold that Arnold and Maschke had purchased drugs from defendant in December 1989.

Following the testimony of defendant’s wife and defendant, the court sentenced defendant to a term of six years with the Department of Corrections. It also imposed a street-value fine of $250 and a further fine of $2,000.

Subsequently, the defense filed a motion for reconsideration of the sentence. At the initial hearing on that motion, the court asked the defendant if he would waive his right to be present at a conference between the court and both counsel in chambers. Defendant waived his right to be present at that conference. The court indicated that it did not believe defendant and thought that defendant was a drug dealer. The court then made the following statement which is at issue here:

“So where are we at if he would admit that he was a pusher and he had engaged in this type of conduct? I would be willing to do other things, participate in programs other than a jail sentence. I don’t know what the other alternatives and stuff to a prison incarceration. I don’t know how you can approach him in that regard without him feeling like the Court is saying admit something you didn’t do and he might reduce your sentence. I don’t know where it puts it.”

Jim Maschke then testified for defendant, and the substance of his testimony was that he never accompanied Arnold to defendant’s house and never bought cocaine from defendant. Defendant then testified that Arnold had never been to his house to purchase cocaine and that on December 20, 1989, specifically, he did not see Charles Arnold at his house. He also testified that he hardly knew Arnold. Following this testimony the court declined to modify the sentence previously imposed. This appeal was timely filed.

On appeal, defendant’s first contention is that the State failed to prove beyond a reasonable doubt that he was not entrapped. The entrapment defense is set forth in the Criminal Code of 1961 (Criminal Code): Once the entrapment defense is raised, the burden is on the prosecution to prove beyond a reasonable doubt that entrapment did not occur. People v. Tipton (1980), 78 Ill. 2d 477, 487; People v. D’Angelo (1992), 223 Ill. App. 3d 754, 773-74.

“Entrapment. A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.” (111. Rev. Stat. 1989, ch. 38, par. 7 — 12.)

At the outset, we must address the proper standard of reviewing the sufficiency of the State’s evidence against the entrapment defense. The question of whether a defendant has been unlawfully entrapped is a factual question to be decided by the trier of fact. (Tipton, 78 Ill. 2d at 487; People v. Lambrecht (1992), 231 Ill. App. 3d 426, 434.) A reviewing court may not substitute its judgment for that of the trier of fact with respect to the weight of the evidence or the credibility of the witnesses. Furthermore, the reviewing court should not reverse a conviction unless the evidence is so improbable, unreasonable, or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. (People v. Campbell (1992), 146 Ill. 2d 363, 375.) Thus, the relevant inquiry is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) (People v. Collins (1985), 106 Ill. 2d 237, 261; see also Campbell, 146 Ill. 2d at 374.) Here, when the evidence is viewed under this standard, affirmance is warranted.

To support a finding of entrapment, the evidence must reveal (1) the State improperly induced the defendant to commit the crime, and (2) a lack of predisposition to commit the crime on the defendant’s part. (Lambrecht, 231 Ill. App. 3d at 434; People v. D’Angelo (1992), 223 Ill. App. 3d 754, 774.) A defendant’s predisposition to commit an offense is a critical element in overcoming an entrapment defense. (People v. Cross (1979), 77 Ill. 2d 396, 405, cert. denied (1980), 445 U.S. 929, 63 L. Ed. 2d 762, 100 S. Ct. 1316; Lambrecht, 231 Ill. App. 3d at 434.) Thus, in order to sustain its burden of proving that defendant was not entrapped, the State had to show that defendant was ready and willing to commit the crime without persuasion and therefore was predisposed to commit it. Lambrecht, 231 Ill. App. 3d at 434-35; D’Angelo, 223 Ill. App. 3d at 775.

There are several factors that courts consider when determining a defendant’s predisposition to commit a crime: the defendant’s initial reluctance or readiness to commit the offense, and, in the context of drug offenses, the defendant’s familiarity with drugs, his willingness to accommodate the needs of drug users, the defendant’s willingness to make a profit from the illegal act, the defendant’s own prior or current use of illicit drugs, whether he has a ready source to supply illicit drugs, and his participation in cutting or testing the drugs. (D’Angelo, 223 Ill. App. 3d at 776; People v. Schillaci (1988), 171 Ill. App. 3d 510, 517-18.) It is also significant whether defendant was involved in a course of conduct which involved similar offenses. (Lambrecht, 231 Ill. App. 3d at 435; People v. Beavers (1986), 141 Ill. App. 3d 790, 795.) While a factor to be considered is whether defendant has a prior criminal record, that alone is not enough to show entrapment. (Lambrecht, 231 Ill. App. 3d at 435; D’Angelo, 223 Ill. App. 3d at 776.) We determine that, based on the evidence presented to it, the jury could have found beyond a reasonable doubt that defendant was predisposed to commit the offense of which he was charged.

The evidence, when viewed in the light most favorable to the State, indicates that defendant was ready and willing to commit the offense. According to Schindler, on two of three occasions that she called defendant at home to solicit a sale of cocaine, February 7, 1990, and March 2, 1990, he met her within two or three hours of the call with the cocaine she requested. Thus, he was ready and willing to commit the offense.

Furthermore, on February 7, 1990, he showed an inclination to accommodate Schindler’s and Lowrey’s needs by stating that he would try to get them more cocaine later. He further showed a readiness to address their demands by stating on March 2, 1990, that he would try to work something out to get them a full ounce later on. Thus, he demonstrated a willingness to accommodate the drug user’s needs.

In addition, defendant apparently had a ready source of cocaine: on February 7, 1990, when he agreed to sell Schindler one-eighth of an ounce, he merely called Darrell Hubbard to purchase the cocaine necessary for the exchange. As far as defendant’s prior or current use of illicit drugs, the jury heard defendant’s testimony that he used cocaine one to two times per week or sometimes not at all in 1988 and 1989.

Some of the State’s evidence on the defendant’s predisposition was contested by defendant. Most evident of that conflict was defendant’s assertion that Schindler bothered him repeatedly by telephone calls and at work in the months of January and February 1990, in order to get him to sell cocaine to her. Nevertheless, where there are inconsistencies and conflicts in the evidence, it is up to the trier of fact to weigh the believability of the witnesses and resolve those inconsistencies. (Lambrecht, 231 Ill. App. 3d 426.) At trial, evidently the jury found the informant, Schindler, and Inspector Lowrey more believable than defendant.

Defendant contends that the facts of this case are like those of People v. Fisher, in which the court reversed the conviction, holding that defendant was entrapped. (People v. Fisher (1979), 74 Ill. App. 3d 330, 335.) We believe Fisher is distinguishable from the present case. In that case, the law enforcement officer’s testimony did not preclude the possibility that he may have attempted to make purchases from the defendant prior to the occasion at which the transaction occurred. Furthermore, the State did not present any other evidence of predisposition. On that basis, the court determined that the State did not sustain its burden to show defendant’s predisposition to commit the offense. Although in the present case Schindler made numerous attempts in person to purchase cocaine from defendant, thus likening this case to Fisher, there are other ways in which defendant’s predisposition was revealed. In the present case, there was evidence of defendant’s willingness to accommodate the drug user’s needs. There was also evidence that defendant had a ready source of cocaine. There was also evidence that defendant had used cocaine in the past. Thus, there was other evidence of predisposition in this case which supported the determination that there was no entrapment and, therefore, distinguishes this case from Fisher. We believe that sufficient evidence, when taken in the light most favorable to the State, was introduced to prove beyond a reasonable doubt that defendant was predisposed to commit the charged offense and, therefore, was not entrapped.

The defendant next contends that he was denied his sixth amendment right to confront witnesses when the court refused to allow defense counsel to inquire as to the total amount of money paid to Schindler to date by the police and how many other drug deals she had set up.

The sixth amendment to the Federal Constitution protects the defendant’s right of cross-examination (Davis v. Alaska (1974), 415 U.S. 308, 315-16, 39 L. Ed. 2d 347, 353, 94 S. Ct. 1105, 1110; People v. Owens (1984), 102 Ill. 2d 88, 103) and the Illinois Supreme Court has stated that defendants should be allowed a wide latitude to show bias. (Owens, 102 Ill. 2d at 103.) The scope of cross-examination rests mainly in the discretion of the trial court. Owens, 102 Ill. 2d at 103.

If trial error affects a Federal constitutional right, it is reversible error unless it is harmless beyond a reasonable doubt. (Owens, 102 Ill. 2d at 104; People v. Perez (1991), 209 Ill. App. 3d 457, 471.) In determining whether the error was harmless, the sufficiency of the evidence which proves guilt beyond a reasonable doubt must be considered. (Perez, 209 Ill. App. 3d at 471; People v. Pizzi (1981), 94 Ill. App. 3d 415, 421.) We determine that while error occurred in this case, it was harmless error, and thus the judgment is affirmed.

Schindler was the State’s main witness in this case. On direct examination and during her cross-examination it was revealed that she was working with the DCI to set up the drug transactions with defendant. On cross-examination, it was also revealed that she was paid $40 each time she set up a drug transaction for the police. Defense counsel was permitted to question her as to whether her police work was prompted by her fear that authorities would take her children from her. Defense counsel was also permitted to probe as to whether she had been assured that she would not be charged for her alleged criminal activities as long as she worked with the DCI. Defense counsel then asked how many people she had set up, how many times law enforcement personnel had given her $40, and whether she had occasion to set up her friend Darrell Hubbard. For each of those three questions, the State objected and the objection was sustained. Defendant argues that the refusal of the court to allow counsel to explore those areas for the purpose of showing bias, as well as the credibility of the witness, was reversible error.

Defendant relies on two cases to stand for the proposition that, in a case with facts similar to this one, the limitation by the court on the cross-examination of a witness was reversible error. (People v. Perez, 209 Ill. App. 3d at 472; People v. Garrett (1976), 44 Ill. App. 3d 429.) In Perez, defendant was convicted of delivery of a controlled substance and of calculated drug conspiracy. At trial defendant relied on the affirmative defense of entrapment. At issue was the cross-examination of the State’s informant who was instrumental in setting up three drug transactions between defendant and a Drug Enforcement Agency (DEA) agent. While the defense was permitted to probe as to the fact that informant was paid by the DEA for setting up the transactions with defendant, defense counsel was not permitted to question informant about any arrests that were pending during the time of the three drug transactions. Defense counsel argued that the informant’s arrest just prior to the first drug transaction and'the later dismissal of those charges were relevant to the informant’s bias and interest to testify against the defendant in that case. While the facts of Perez share some similarities with this case, that case is distinguishable in more than one way.

In the present case, the evidence of Schindler’s bias in favor of the State was admitted. In contrast, in Perez, the evidence of bias based on the dismissal of the informant’s arrest charges was kept out. Evidence of an arrest or charge with a crime is strong evidence of the likelihood of bias or motive. (People v. Triplett (1985), 108 Ill. 2d 463, 475.) Furthermore, reducing the informant’s credibility in Perez was crucial to the defendant’s case, since the only witnesses to testify to the defendant’s predisposition were the defendant and the informant. In contrast, in the present case, some of the evidence regarding defendant’s predisposition to commit the crime was undisputed or Schindler’s testimony was corroborated by Lowrey. For instance, defendant admitted himself that he had used cocaine repeatedly in 1988. Furthermore, both Schindler and Lowrey heard the defendant indicate that he would try to accommodate Schindler’s and Lowrey’s needs by trying to get them more cocaine later.

Furthermore, the Perez appellate court found the trial court’s action, to be in error, based on the record. That is, while the trial court did not permit defense counsel to question the information about his pending arrests, apparently defense counsel’s remarks as to why he was posing the question were in the trial court record. (Perez, 209 Ill. App. 3d at 464.) It was that record upon which the appellate court based its decision. Thus, the Perez appellate court could reasonably draw the conclusion that there was a likelihood of bias on the part of the informant, even though questions regarding the pending arrest were never permitted to be answered. In the present case, there is no indication in the record that Schindler made a substantial amount of money serving as an informant. Thus, we cannot speculate as to facts that were not revealed by the record.

Garrett may be distinguished from the present case as well. (Garrett, 44 Ill. App. 3d at 438.) In that case, the defense was completely foreclosed from inquiring about the informant’s financial relationship with the police, whether defendant’s credibility could be destroyed by the introduction of evidence of hospital records which would reveal that she had taken drugs after a certain date, and whether defendant’s mother had filed a complaint against the witness. In contrast, as discussed above, several inquiries were permitted in the present case, and Schindler’s bias was exposed. Thus, whereas no bias was permitted to be revealed in the Garrett case, in the present case, bias was divulged.

Because such a wide latitude is permitted on cross-examination to demonstrate bias, this court determines that the trial court committed error by preventing defense counsel from exploring how much total money Schindler had made by setting up drug transactions for the DCI. Although bias had been revealed, the degree to which it existed was not revealed when the court prevented Schindler from stating how much total money she made as an informant. But because bias was permitted to be demonstrated, and because some of the evidence regarding defendant’s predisposition was undisputed or attested to by Schindler and by Lowrey, this court determines that the sufficiency of the evidence sustains guilt beyond a reasonable doubt and the error that occurred was harmless error.

Defendant posits that the State’s comments during closing argument exceeded the bounds of propriety and denied the defendant a fair trial. At the conclusion of the State’s rebuttal the State related to the jury:

“In closing I just ask you to have an open mind and go over the facts of the case. You have heard them often enough. But one other thing that I am sure bothered the jury about the Defendant was the fact that he did bring the young girl along with him when he sold the cocaine the first time. Is that the type of person who you are going to believe here in Court?
[Defense Counsel]: I think that’s absolutely improper comment and I object to it, Judge.
THE COURT: Objection overruled.
[The State]: I pose that again, is that the type of person you would believe, a 3 year old girl [sic] in the middle of a drug deal? Thank you for your time and attention, ladies and gentlemen of the jury.”

The character and scope of argument to the trier of fact are left largely to the trial court, and every reasonable presumption must be indulged in that the trial judge has performed his duty and properly exercised the discretion vested in him. (People v. Smothers (1973), 55 Ill. 2d 172, 176.) A prosecutor has the right to make legitimate comments on the evidence that are relevant to the guilt or innocence of the defendant, but a prosecutor is prohibited from making any comment that serves no purpose but to inflame the passions of the jury. (People v. Tiller (1982), 94 Ill. 2d 303, 321.) A prosecuting attorney has the right to draw all legitimate inferences that he is able to from the facts in evidence, and the accused cannot complain that such deductions place him in a bad light before the jury. (People v. Heidman (1957), 11 Ill. 2d 501, 511.) Thus the prosecutor may comment upon the conduct of the defendant, and denounce his wickedness, if such comment is based upon evidence competent and pertinent to the issues. (Heidman, 11 Ill. 2d at 511.) We determine that if error occurred in this case, it was harmless.

In the present case, defendant’s credibility was at issue. When a defendant testifies, his credibility, like that of any other witness, is at issue. (People v. Tinsley (1970), 128 Ill. App. 2d 440, 445.) While it is true that it was in evidence that defendant brought a three-year-old girl with him to the first drug transaction, it is not a reasonable inference from the evidence that that fact would directly relate to defendant’s credibility. Despite this, it is apparent that defendant suffered no real prejudice here. The evidence that the child was brought by defendant to the drug deal was already heard by the jury. The discrepancies in defendant’s and the State’s witnesses’ stories contributed substantially to the lack of defendant’s credibility. Furthermore, the State’s question was not so strong a statement as to inflame the passions of the jury. (See Tiller, 94 Ill. 2d 303 (where the prosecution characterized the defendant in a trial for three murders as lower than an animal as he killed them without reason and, also, the prosecution characterized the three murders as a holocaust, similar to the Nazi holocaust).) It would thus appear that substantial evidence was presented from which the jury could judge defendant’s credibility and the error, if any, in permitting the State’s questions during closing argument was harmless beyond a reasonable doubt. People v. Owens (1984), 102 Ill. 2d 88, 104.

Defendant next argues that the sentence should be vacated and the cause remanded for resentencing since, he alleges, the trial court indicated that, absent a statement of guilt by the defendant, a sentence other than one involving incarceration would not be imposed. All penalties must be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. (Ill/Const. 1970, art. I, §11; 111. Rev. Stat. 1989, ch. 38, par. 1001 — 1—2(d).) Nevertheless, the trial judge’s decisions in regard to sentencing are entitled to great deference and weight. (People v. Streit (1991), 142 Ill. 2d 13, 18-19.) Sentencing is a matter for the discretion of the trial court and must not be reversed absent a showing of abuse of that discretion. (Streit, 142 Ill. 2d at 19; People v. Fetter (1992), 227 Ill. App. 3d 1003, 1009.) Our review of this record reveals no abuse of discretion.

A defendant’s punishment may not be increased because of his refusal to admit guilt following a conviction. (People v. Sherman (1977), 52 Ill. App. 3d 857, 859.) This is to protect an individual’s right of appeal or prospects of post-conviction relief which might otherwise be jeopardized by the rewarding of defendant’s admission of guilt following trial. (People v. Speed (1984), 129 Ill. App. 3d 348, 349, citing Sherman, 52 Ill. App. 3d at 859.) It is well established that the court may consider the lack of remorse in determining the appropriate sentence to be imposed upon a defendant, since this is a factor which may have a bearing on the defendant’s potential for rehabilitation. (Speed, 129 Ill. App. 3d at 349.) In addition, a sentencing judge may consider a defendant’s lack of truthfulness on the witness stand, since this, too, may have a bearing on defendant’s rehabilitative potential. Speed, 129 Ill. App. 3d at 349.

The transcript of the trial court’s reasons for imposing sentence at the original sentencing hearing encompasses five pages of the transcript. The trial court first stated that it considered all the information available to it, the evidence received at trial, the presentence report, the evidence offered in aggravation and mitigation, and arguments as to sentencing alternatives. The trial court considered defendant’s truthfulness as a relevant factor in sentencing. The court then indicated that it understood that defendant did not have to admit the offense but that he could consider that fact in sentencing. The court stated it had seriously considered probation but rejected that option because of the evidence of another sale that was introduced during the sentencing hearing. The trial court further stated that the seriousness of the offense and the necessity to deter others mandated a penitentiary sentence, and it sentenced defendant to a term of six years.

The record reveals that defendant filed a motion for reconsideration of sentence and, before hearing evidence or argument, the court suggested an in-chambers conference. Defendant waived his right to be present. In conference, the court indicated its disbelief as to defendant’s testimony and the poor prospects for defendant’s rehabilitation as long as he continued to deny his drug-dealing activities. It then stated the colloquy in issue, asking where would it be if defendant would admit his involvement in drug dealing. The court stated it would be willing to impose an alternative to prison incarceration.

Defendant asserts that a “fair” reading of those comments reveals that only if defendant abandoned his claim of innocence and admitted to the court he was a “[drug] pusher,” would the court have been “willing to do other things, [such as] participate in programs other than a jail sentence.” We disagree.

Defendant takes that colloquy out of the context of the entire sentencing process that took place in the trial court. In deciding whether to reverse a sentence imposed by the trial court, the reviewing court should not focus on a few words or statements of the trial court. Rather, the determination of whether a sentence was rendered properly must be made by considering the entire record as a whole. (People v. Ward (1986), 113 Ill. 2d 516, 526-27.) In the present case, we find that the trial judge evaluated the factors set out in the sentencing hearing guidelines in the Unified Code of Corrections. (111. Rev. Stat. 1989, ch. 38, par. 1005 — 4—1.) Furthermore, immediately before making the comments at issue, the court explored the defendant’s lack of rehabilitative potential as evidenced by the defendant’s apparent lack of truthfulness on the witness stand and lack of remorse. On this basis, we determine that the trial court did not abuse its discretion with respect to sentencing.

The conviction and the sentence imposed by the trial court are affirmed.

Affirmed.

INGLIS, P.J., and GEIGER, J., concur.


text:
    MELISSA NIKOLIC, Plaintiff-Appellant, v. LEWIS SEIDENBERG et al., Defendants-Appellees.
    Second District
    No. 2 — 92—0487
    Opinion filed March 12, 1993.

      Susan L. Mahoney, of Winston & Strawn, of Chicago, for appellant.
    Steven Christophell, of Schoen & Smith, Ltd., of Chicago, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Melissa Nikolic, appeals from an order granting a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (111. Rev. Stat. 1991, ch. 110, par. 2 — 619) filed by defendants, Lewis Seidenberg and River Woods Pet Clinic. For the following reasons, we reverse and remand.

On August 25, 1991, plaintiff adopted a female dog, which she named Sasha, from the Orphans of the Storm animal refuge. At the time of the adoption, plaintiff was required to sign a contract with Orphans of the Storm. In accordance with one of its provisions, plaintiff agreed to have Sasha spayed by Dr. Lewis Seidenberg, a veterinarian associated with Orphans of the Storm, at the River Woods Pet Clinic. Dr. Seidenberg owns and operates the clinic.

The operation was performed the day following the adoption. Plaintiff picked up Sasha from the River Woods Pet Clinic and took her home. For two days following the operation, Sasha vomited all the food and water she ingested, was listless, and was breathing heavily. On August 28, 1991, plaintiff called Dr. Seidenberg to report Sasha’s condition. Seidenberg responded that Sasha’s condition was normal since many sheltered dogs experience anxiety after surgery and upon entering a new environment. He advised plaintiff to continue monitoring the dog but did not suggest that plaintiff bring Sasha back for further examination.

Thereafter, plaintiff contacted a veterinarian at Norwood Park Animal Hospital who instructed her to bring Sasha in right away. Dr. Douglas Hammer, the treating veterinarian, determined that Sasha was totally dehydrated, had a higher than normal temperature, and was suffering from ileus, or inflammation of the intestine. Since Sasha did not respond to treatment, Dr. Hammer performed exploratory surgery on August 30, 1991, and discovered a one-half-inch cut in her intestine which was causing peritonitis. Dr. Hammer closed the cut and removed three liters of a hemopurulent fluid from the dog’s abdominal cavity. Sasha was released from the hospital after 11 days. After further treatment at home, Sasha eventually recovered.

On September 10, 1991, plaintiff requested reimbursement from Orphans of the Storm for Sasha’s medical expenses at the Norwood Park Animal Hospital. On February 13, 1992, plaintiff filed a pro se small claims complaint seeking reimbursement of medical costs incurred for Sasha’s treatment following a “surgical error” committed by Dr. Seidenberg. Seidenberg and the River Woods Pet Clinic (hereinafter defendants) responded by filing a section 2 — 619 motion to dismiss on the basis that plaintiff breached her contract with Orphans of the Storm by failing to bring Sasha back to the animal refuge for further treatment and was thereby barred from seeking relief from deféndants.

Following a hearing, the court found that plaintiff was required by the contract with Orphans of the Storm to bring Sasha back for further treatment. Because plaintiff did not bring Sasha back to Orphans of the Storm, the court ruled that she could not recover from defendants. Defendants’ motion was granted, and plaintiff appealed.

The purpose of a section 2 — 619 motion is to provide a means to dispose of issues of law or easily proved issues of fact. (Timberline, Inc. v. Towne (1992), 225 Ill. App. 3d 433, 438.) The motion should be granted and the complaint dismissed if, after construing the documents in the light most favorable to the nonmoving party, the court finds that no set of facts can be proved which would entitle the plaintiff to recover. (Wood v. Village of Grayslake (1992), 229 Ill. App. 3d 343, 348; Nagy v. Beckley (1991), 218 Ill. App. 3d 875, 878.) When reviewing the propriety of a section 2 — 619 dismissal, all well-pleaded facts alleged in the complaint are taken as true. (Elliott v. L R S L Enterprises, Inc. (1992), 226 Ill. App. 3d 724, 727.) Conclusions of law or conclusions of material fact unsupported by specific factual allegations must be disregarded. (Wood, 229 Ill. App. 3d at 348.) As such, the reviewing court is concerned solely with a question of law presented by the pleadings. (Milder v. Van Alstine (1992), 230 Ill. App. 3d 869, 871.) This type of review is independent, and the appellate court is not required to defer to the trial court’s reasoning. (Miranda v. Jewel Cos. (1989), 192 Ill. App. 3d 586, 588.) Thus, a section 2 — 619 dismissal may be affirmed on any grounds supported by the record, regardless of whether the trial court relied on those grounds or whether its reasoning was correct. Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 286.

The trial court dismissed plaintiff’s cause of action on the basis of the following language contained in the contract for adoption between plaintiff and Orphans of the Storm:

“If the animal is sick, I agree to return it to Orphans of the Storm within three days of adoption date. The refuge will cause it to be treated, if feasible, but, if in their judgment, and that of a veterinarian’s, treatment is unfeasible, I will abide by such judgment. This clause is to insure prompt medical attention if required. It is NOT to be construed as a time limit for free medical attention.
Free medical care HERE is covered for two weeks. We prefer ‘false alarm’ returns to an adopters decision ‘to wait a little longer and see’.
We cannot honor veterinary fees incurred by adopters to veterinarians not associated with this Refuge.
No guarantee whatever can be made with regard to animals adopted from this refuge. Some have been lost or abandoned; others have been relinquished by owners to us or other agencies. Even when relinquished by owners, we do not always get the truth about them. We do observe all animals closely as they are administered to and handled, and do not knowingly misrepresent any animal nor permit it to be adopted if we suspect it may be in ill health or temperamentally unsuited for adoption.”

Since plaintiff did not bring Sasha back to the refuge, the court found that she breached the contract thereby waiving her right to sue Dr. Seidenberg for negligence.

The trial court interpreted the above-quoted contractual language as an exculpatory clause relieving Dr. Seidenberg for negligence in treating Sasha. Although exculpatory clauses are not favored and must be strictly construed against the benefitting party, they are not violative of public policy as a matter of law. (Reuben H. Donnelley Corp. v. Krasny Supply Co. (1991), 227 Ill. App. 3d 414, 419.) A contract which shifts the risks of one’s own negligence to another contracting party will be enforced unless it would be against settled public policy to do so or there is something in the social relationship of the parties militating against upholding the agreement. (Harris v. Walker (1988), 119 Ill. 2d 542, 548.) However, such clauses must contain clear, explicit, and unequivocal language which spells out the intent of the parties and will not be construed to defeat a claim which is not explicitly covered by its terms. Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 395; Macek v. Schooner’s, Inc. (1991), 224 Ill. App. 3d 103, 105.

In this case, the language of the contract requires the adopter to bring a sick animal, not an injured animal, back to Orphans of the Storm for treatment within three days of the adoption. The contract further states that Orphans of the Storm will not honor fees of veterinarians not associated with the refuge. We find the language of the contract is not sufficiently clear and explicit to exculpate a veterinarian from negligence in treating an animal adopted at Orphans of the Storm. Nothing in the language of the contract illustrates plaintiff’s intent to waive her right to sue a veterinarian for negligent treatment of her dog. Further, the language of the contract is not sufficiently explicit to illustrate an intent by Orphans of the Storm to exculpate itself for negligent treatment of an animal adopted from the refuge and treated by an associated veterinarian.

In our interpretation, the contract obligated plaintiff to have Sasha spayed at the time indicated by Orphans of the Storm. Plaintiff complied with this provision by bringing Sasha to Dr. Seidenberg, the veterinarian assigned by the refuge, the day following the adoption. The spaying procedure was performed, and plaintiff brought Sasha home. Plaintiff became concerned when Sasha continued to vomit for two days following the surgery. It is undisputed that Dr. Seidenberg did not request that plaintiff bring Sasha in for further examination. Defendants contend that plaintiff breached the contract by failing to bring Sasha back to Orphans of the Storm for treatment.

Defendants’ reliance on this portion of the contract in support of their contention that plaintiff waived her right to sue Dr. Seidenberg and the River Woods Pet Clinic for negligence is misplaced. First, we note that plaintiff entered into the contract for adoption with Orphans of the Storm.

Dr. Seidenberg and the River Woods Pet Clinic were not parties to this contract. A third party acquires no rights under a contract entered into by others unless the provision at issue was intentionally included for the direct benefit of the third party. (Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp. (1991), 218 Ill. App. 3d 383, 393.) If the third party’s benefit is merely incidental, he has no right to rely on the contract. (Alaniz v. Schal Associates (1988), 175 Ill. App. 3d 310, 312.) A third party is a direct rather than an incidental beneficiary when the contracting parties manifest an intent to confer a direct benefit on the third party. (Village of Fox Lake v. Aetna Casualty & Surety Co. (1989), 178 Ill. App. 3d 887, 911.) The contract need not specifically name a third-party beneficiary. (Weil, 218 Ill. App. 3d at 393.) However, there is a strong presumption that parties to a contract intend its provisions to apply only to them and not to third parties. (155 Harbor Drive Condominium Association v. Harbor Point Inc. (1991), 209 Ill. App. 3d 631, 646.) To overcome that presumption, the intent to benefit a third party must affirmatively appear from the language of the instrument considering the entire contract and the circumstances surrounding the parties at the time of its execution. Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 54; Bates & Rogers Construction Corp. v. Greeley & Hansen (1985), 109 Ill. 2d 225, 232.

Our review of the contract between plaintiff and Orphans of the Storm reveals that Dr. Seidenberg and the River Woods Pet Clinic were not direct beneficiaries. The contract’s sole reference to veterinarians states that Orphans of the Storm will not pay for fees of veterinarians not associated with the refuge. In our view, the contract defines the rights and duties of plaintiff and the refuge in adopting an animal. It also defines the extent of liability of Orphans of the Storm for the adopted animal. However, the contract is silent regarding the rights and duties of a third-party veterinarian for negligent medical treatment. Furthermore, plaintiff seeks compensation for an injury allegedly inflicted by defendants. Thus, the relief plaintiff seeks is not precluded by the agreement.

Since the refuge does not have a complete history of each animal, the contract states that Orphans of the Storm cannot guarantee the health of animals adopted from the clinic. Viewing the entire contract as a whole, we interpret the clause to require the adopter to bring a “sick” animal back to Orphans of the Storm only when the animal is suffering from an illness. However, based on the record, Sasha was suffering from an injury, and not a sickness as contemplated by the terms of the contract. Since we do not equate an injury with a sickness, we do not view the contract as exculpating associated veterinarians for negligent treatment.

On appeal, defendants argue for the first time that plaintiff was required to file an affidavit in support of her complaint for veterinary malpractice. The Healing Art Malpractice Act requires a plaintiff seeking damages for injuries resulting from medical malpractice to attach an affidavit of merit and a written report from a health professional to the complaint. (111. Rev. Stat. 1991, ch. 110, par. 2 — 622.) The failure to file an affidavit in compliance with this requirement is ground for dismissal under section 2 — 619 of the Code of Civil Procedure. 111. Rev. Stat. 1991, ch. 110, par. 2 — 622(g).

Defendants moved for dismissal under section 2 — 619(aX9) on the sole basis that plaintiff breached her contract with Orphans of the Storm. At no time did defendants assert that a section 2 — 619 dismissal was warranted because plaintiff failed to file a section 2 — 622 affidavit. When the trial court enters an order granting a motion to dismiss without specifying the ground on which it is based, the appellate court is faced with every issue raised in the motion. If any ground raised by the motion was proper, the appellate court must affirm. (Williams v. Board of Education (1991), 222 Ill. App. 3d 559, 565.) However, when the record on appeal indicates that an issue urged on appeal was not raised in the trial court, the issue is not properly preserved and is deemed to be waived on appeal. (Williams, 222 Ill. App. 3d at 565.) Since defendants’ motion did not raise the issue of plaintiff’s failure to file a section 2 — 622 affidavit, we deem this issue waived.

Viewing the pleadings in the light most favorable to plaintiff, we find that the court erred in dismissing the complaint pursuant to section 2 — 619. For the foregoing reasons, we reverse the judgment of the circuit court of Lake County and remand this cause to the trial court for further proceedings in conformance with this opinion.

Reversed and remanded.

INGLIS, P.J., and QUETSCH, J., concur.


text:
    EUROPEAN TANSPA, INC., Plaintiff-Appellant, v. WINFRED SHRADER et al., Defendants-Appellees.
    Second District
    No. 2 — 92—0428
    Opinion filed March 12, 1993.
    Edward J. Welch and Richard W. Goeken, both of Dommermuth, Bres-tal, Cobine & West, Ltd., of Naperville, for appellant.
    William E. Hale and Richard L. Lucas, both of Richard L. Lucas & Associates, Ltd., of Addison, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, European Tanspa, Inc., appeals the order of the circuit court which granted the motion of defendants, Winfred and Ethel Shrader, under section 2 — 1401 of the Code of Civil Procedure (111. Rev. Stat. 1991, ch. 110, par. 2 — 1401) to vacate a default judgment. On appeal, plaintiff contends (1) that the petition is legally deficient in that it is unsupported by affidavit as required by statute; (2) the court erred in finding that defendants pleaded a meritorious defense; and (3) the court abused its discretion in holding that substantial justice required granting the petition. We reverse.

Defendants operated a tanning salon under a franchise agreement with plaintiff. On December 4, 1990, plaintiff filed a complaint for breach of contract in the circuit court of Du Page County. The complaint alleged that defendants had failed to pay certain licensing royalties. The parties settled that suit, No. 90 — LM—7622, on May 20, 1991, with the execution of a settlement agreement.

The settlement provided in part that defendants would pay plaintiff $9,000 in complete satisfaction of all outstanding debts, defendants agreed to release all claims and defenses against plaintiff, and both parties would continue to abide by the franchise agreement as modified. Based on this agreement, the court entered an order dismissing the action.

Defendants failed to make the first payment due under the settlement agreement. Plaintiffs attorney, Edward Welch, telephoned defendants’ attorney to notify him of the breach. After consulting with his clients, defendants’ attorney called Welch back to inform him that defendants would not comply with the settlement agreement.

Welch then sent defendants a certified letter informing them of the default. Ethel Shrader responded with a letter stating that she and her husband were experiencing extreme financial difficulties in operating the business and would probably have to sell their home to keep the business going. The letter also stated defendants’ belief that plaintiff had failed to train them properly to run the business. The letter concluded by stating, “Do what you think best.”

On September 26, 1991, plaintiff filed the instant action. The complaint contained four counts. Count I sought to enjoin defendants from doing business at their present location or any site within a 10-mile radius; from being affiliated with any competitor of plaintiff for one year and within a 10-mile radius of their current location; and to assign their business telephone number to plaintiff. Count II sought an accounting for all royalty payments allegedly due. Count III sought specific performance of the licensing agreement as well as a preliminary injunction to prohibit defendants from transferring the equipment used in the business. Count IV sought damages of $1,800 for licensing fees allegedly due as of September 1, 1991.

Attached to the complaint and incorporated by reference was a copy of the settlement agreement in 90 — LM—7622, but the complaint apparently did not seek a judgment for breach of this agreement.

The record shows that both defendants were served personally with the complaint and summons on October 6, 1991. On November 12, the court entered a default judgment for all the requested relief. Although defendants had not filed an appearance, Welch sent them a notice of the motion for default judgment.

On November 12, the court passed the case to the end of the call at approximately 10:30 a.m. and, when defendants failed to appear, entered judgment by default for all the relief requested. The judgment does not mention the settlement agreement in No. 90 — LM— 7622.

Apparently sometime later that day, defendants appeared in courtroom 2011, where the clerk informed them that a default judgment had been entered against them. Defendants were informed that they must move to vacate the default judgment within 30 days.

Joyce Cocogliato, plaintiff’s president, and a female companion, attempted to deliver a certified copy of the judgment to defendants’ place of business on December 30, 1991. According to Cocogliato’s affidavit, Winfred Shrader threatened to kill her, shouted obscenities at her, and attempted to push her and her assistant through a plate-glass window.

Plaintiff filed a motion for a rule to show cause why defendants should not be held in contempt of court for failure to abide by the November 12 judgment. A hearing on the motion was set for January 21, 1992. Defendants appeared at the hearing pro se. Ethel Shrader stated that she was in court on November 12. She further stated:

“It seemed like everybody [sic] had been entered against us, so we were waiting for — to see what came about that ***.”

The court advised defendants to get a lawyer. Mrs. Shrader protested repeatedly that defendants had no money and could not afford a lawyer. The court responded, “You can’t afford not to get a lawyer.” The court continued the matter to February 5.

On that date, attorney Richard Lucas represented to the court that he would be filing an appearance for defendants. The court granted defendants 21 days to file a section 2 — 1401 petition to vacate the default judgment.

Defendants filed their petition on March 5. The petition alleges that defendants attempted to appear on November 12, but “inadvertently failed to arrive in the appropriate courtroom” prior to the case being called. Defendants “diligently sought” counsel but lacked the financial resources to secure counsel at an earlier date. The petition further alleges as follows:

“5. The Defendants have a meritorious defense to the claims presented in the Complaint, including but not limited to the following:
a. Plaintiffs failed to comply with the licensing agreement, as pled in the complaint, including but not limited to failure to provide training to the Defendants in the operation of the materials, supplies and equipment comprising the European Tan-Spa franchise;
b. Defendants [sic] failed to comply with the terms of the settlement agreement, as to inspections, by demanding inspection without reasonable notice, by demanding inspections be carried out by persons specifically identified as not being an authorized agent of Plaintiff for the purpose of inspections;
c. Defendants [sic] have failed to comply with the terms of the licensing agreement, and have specifically failed to provide the disclosures required pursuant to the Illinois Franchise Disclosure Act of 1987.
d. Defendants [sic] have failed to properly account for monies paid to it by Defendants, including a franchise fee of $70,000.00, for which various materials, supplies and manuals have not been delivered, thereby preventing Defendants from performing and operating their franchise, and Defendants [sic] have failed to properly credit Defendants with such payments.
e. Plaintiff has engaged in violations of the antitrust laws of the United States and the State of Illinois, by requiring Defendants to purchase equipment and supplies directly from suppliers selected by Plaintiff.”

Defendants did not attach affidavits to the petition, but the petition itself was verified. Plaintiff filed a response to the petition as well as various affidavits.

On March 12, the court conducted a hearing on the motion, which consisted solely of argument by the parties’ attorneys. The court recognized, and plaintiff’s counsel agreed, that the complaint went beyond mere enforcement of the prior judgment. The court reiterated that the former judgment would be res judicata regarding any defense which could have been raised in that proceeding. The court nevertheless granted defendants’ petition and vacated the November 12 default judgment. The court stated that “justice requires” vacation of the default judgment. Plaintiff filed a timely notice of appeal.

Section 2 — 1401 provides a comprehensive statutory procedure by which final orders, judgments and decrees may be vacated more than 30 days after their entry. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1401; Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220.) To be entitled to such relief, a petitioner must affirmatively set forth specific factual allegations demonstrating (1) the existence of a meritorious claim or defense; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 — 1401 petition. (Smith, 114 Ill. 2d at 221; Bonanza International, Inc. v. Mar-Fil, Inc. (1984), 128 Ill. App. 3d 714, 717.) Whether a section 2 — 1401 petition should be granted lies within the sound discretion of the trial court, and, thus, a reviewing court is justified in disturbing the trial court’s judgment only if it finds that court abused its discretion. Smith, 114 Ill. 2d at 221.

In the instant case, the court abused its discretion because defendants completely failed to establish due diligence. The record reveals that defendants received notice of the November 12 hearing, yet failed to arrive at the courtroom until sometime after 10:30 a.m. At that time, they were told that they would need to vacate the judgment within 30 days. Yet they admittedly waited more than 60 days to “see what came about.”

Even after appearing at the January 21 hearing on plaintiff’s petition for rule to show cause, defendants did nothing for approximately 40 more days, when they filed their motion to vacate on March 5. While the petition alleges in conclusional fashion that defendants were unable to afford counsel, there are no facts to support this conclusion. Moreover, defendants do not explain how they were suddenly able to afford counsel who appeared on their behalf on February 5. In summary, the record reveals that defendants were served in the instant action on October 6, 1991, and were at all times made aware of the status of the proceedings, yet failed to take any action whatsoever until appearing at the January 21 hearing. When informed of the default judgment in person by plaintiff’s agent, defendants’ response was to assault the agent. They did not file an appearance until approximately six weeks after that when they filed the section 2 — 1401 petition.

A section 2 — 1401 petitioner must show that, through no fault or negligence of his own, an error of fact or the existence of a valid defense was not made to appear to the trial court. (Smith, 114 Ill. 2d at 222; Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505.) Relief under section 2 — 1401 is available only to those who diligently pursue their legal defenses in court, not to those who “ ‘disregard these procedures on the gamble that better results can be obtained through other procedures or at a cheaper cost.’ ” (Smith, 114 Ill. 2d at 224, quoting Abbell v. Munfield (1979), 76 Ill. App. 3d 384, 388.) In short, this section cannot be used to relieve a party of his own negligence. (Mercantile All-In-One Loans, Inc. v. Menna (1978), 63 Ill. App. 3d 931, 937.) The record shows that the default judgment here was the result of defendants’ indifference to the legal process, not an excusable mistake.

Defendants contend, however, that a section 2 — 1401 petition invokes the court’s equitable powers and that where justice and good conscience require it, a default judgment may be vacated even in the absence of defendants’ due diligence, citing Bonanza International, Inc. v. Mar-Fil, Inc. (1984), 128 Ill. App. 3d 714. Courts have on occasion vacated default judgments in the absence of a showing of due diligence. However, in each case there was evidence of fraudulent conduct by the plaintiff in procuring or concealing the judgment, or other unusual circumstances which made enforcement of the judgment unjust. See Halle v. Robertson (1991), 219 Ill. App. 3d 564; Bonanza International, 128 Ill. App. 3d at 719-20.

No such extraordinary circumstances exist here. The record shows that plaintiff kept defendants informed of the status of the case, even though defendants had not filed an appearance and were not technically entitled to notice. Although, strictly speaking, plaintiff did not seek to enforce the judgment for more than 30 days after it was entered, it is undisputed that defendants had actual notice of the judgment the day it was entered. Rather than attempt to vacate the judgment at that time, defendants elected to “see what comes about.” Thus, it is apparent that “defendants’ dilemma is the result of their own negligence and attitude of nonresponse.” Hogan & Farwell, Inc. v. Meitz (1976), 45 Ill. App. 3d 216, 222; see also Mid-America Federal Savings & Loan Association v. Liberty Bank (1990), 204 Ill. App. 3d 995, 1001 (defendant had notice of default judgment within 30 days, but “elected” to pursue separate action).

Since defendants failed to establish due diligence and there is no conduct by plaintiff which would make enforcement of the judgment unfair or unjust, the court abused its discretion in granting defendants’ section 2 — 1401 petition.

The judgment of the circuit court is reversed.

Reversed.

INGLIS, P.J., and QUETSCH, J., concur.