author: JUSTICE McLAREN

text:
    SAILENDRA N. BASU et al., Plaintiffs-Appellees, v. RUSSELL T. STELLE, Defendant-Appellant.
    Second District
    No. 2—92—0386
    Opinion filed November 17, 1992.

      Joseph M. Laraia and Kenneth D. Hubbard, both of Joseph M. Laraia & Associates, P.C., of Wheaton, for appellant.
    David J. Chroust, of Drendel, Schanlaber, Horwitz & Tatnall, of Aurora, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Russell T. Stelle, defendant, appeals from an order granting summary judgment in favor of Sailendra N. Basu, D. Chet McKee, and Robert D. Marcley, plaintiffs. For the following reasons, we affirm.

On November 20, 1987, defendant executed three separate promissory notes, each in the amount of $13,333.33. The notes were payable to Sailendra N. Basu, D. Chet McKee, and Robert D. Marcley, respectively. The terms of each note were identical, requiring defendant to pay the named payee “the sum of Thirteen Thousand Three Hundred Thirty Three and 33/100 Dollars ($13,333.33), together with interest at the rate of eight and one half percent (8.5%) per annum, payable as follows:

A. Principal payment of Six Thousand Six Hundred Sixty Six Dollars and 67/100 ($6,666.67) together with accrued interest on or before July 15, 1990 (subject to the provisions of paragraph C hereafter).
B. The balance of principal together with accrued interest on or before July 15, 1992 (subject to the provisions of paragraph C hereafter).
C. Notwithstanding the above, in the event that Stelle pays Claimant the entire amount of Thirteen Thousand Three Hundred Thirty Three Dollars and 33/100 ($13,333.33) [or $40,000 based on all three notes] on or before July 15, 1990, then no interest shall be assessed, and the interest set forth in paragraphs A and B above is waived.”

The note provided for payment to plaintiffs through their attorney, Richard L. Horwitz.

On November 9, 1990, plaintiffs filed a complaint alleging that defendant failed to tender payment in a timely manner and to remit accrued interest as required by the terms of the notes. Specifically, the complaint alleged that on August 23, 1990, defendant mailed a letter dated July 15, 1990, to Horwitz. Enclosed was a check dated July 15, 1990, in the amount of $20,000 and a copy of the trust deed securing the notes. The letter stated that the check was “to cover payment to you for the enclosed Morgage [sic] payment.” Plaintiffs contend that defendant breached the terms of the notes by failing to tender payment pursuant to paragraph A of the notes on or before July 15, 1990, and by failing to include accrued interest in such payment. Thus, plaintiffs sought a judgment against defendant in the amount of $30,064.28 plus interest and attorney fees.

On April 15, 1991, plaintiffs filed a motion for summary judgment. The motion asserted that plaintiffs were entitled to summary judgment as a matter of law on the basis of the following language in section 3—307(2) of the Uniform Commercial Code—Commercial Paper (Code):

“When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” Ill. Rev. Stat. 1989, ch. 26, par. 3—307(2).

Defendant’s response admitted that he executed the promissory notes. However, he asserted in his affirmative defense that no interest was due on the notes because the trust deed securing the notes contains no provision for interest and that plaintiffs’ attorney, Richard Horwitz, advised defendant to pay $20,000 on the note because no interest was due. Defendant also asserted that he tendered payment to Horwitz prior to July 15, 1990, and that he was not in default.

On June 6, 1991, the trial court granted plaintiffs’ motion for summary judgment and entered judgment against defendant for the sum of $31,691.07. After a hearing where the court assessed attorney fees, defendant appealed. The sole issue on appeal is whether the court erred in entering summary judgment in favor of plaintiffs.

The purpose of summary judgment is not to try the issues, but to determine whether any triable issues exist. (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 416.) As such, a plaintiff is not required to establish his case as he would at trial. Rather, the moving party must present some factual basis that would arguably entitle him to a judgment in his favor. (West v. Deere & Co. (1991), 145 Ill. 2d 177, 182.) A motion for summary judgment should be granted when the pleadings, depositions, and admissions on file, together with the affidavits, reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c); Balla v. Gambro, Inc. (1991), 145 Ill. 2d 492, 508.) The trial court’s decision to grant or deny a motion for summary judgment is not discretionary. (Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824.) Thus, the reviewing court must apply the de novo standard of review and consider anew the facts and law related to the case. Shull, 223 Ill. App. 3d at 824; Quinton v. Kuffer (1991), 221 Ill. App. 3d 466, 471.

The holder of a promissory note may recover under section 3—307(2) of the Uniform Commercial Code — Commercial Paper, by producing the instrument where the signatures are not in dispute, provided that the defendant does not establish a defense. (Ill. Rev. Stat. 1989, ch. 26, par. 3—307(2); Swerdlow v. Mallin (1985), 131 Ill. App. 3d 900, 907.) In this case, defendant admitted that he executed the promissory notes. However, he asserts in his affirmative defense that he fully complied with the terms of the notes by tendering payment to Horwitz on July 15, 1990, in the amount of $20,000. Defendant contends that no interest was due on the notes because the trust deed securing the notes contains no provision for interest and plaintiffs’ attorney, Richard Horwitz, advised defendant to pay $20,000 on the note because no interest was due.

The promissory notes are dated October 31, 1987. The clear and unambiguous terms of the notes require defendant to pay each payee the sum of $6,666.67 on or before July 15, 1990, with interest at the rate of 8.5% per year. The notes provide that defendant would secure the notes by a mortgage on certain named property to “be evidenced by a separate mortgage instrument *** which gives [the payees] a first lien on the property.” The trust deed securing the notes was executed between the Northbrook Trust & Savings Bank, the mortgagor, and Richard Horwitz, as trustee, on September 16, 1987. The deed states that the notes were financed at a total of $40,000, with $20,000 payable on July 15, 1990. No provision for interest was included in the trust deed. However, the trust deed was not incorporated by reference or otherwise made part of the notes.

Under the parol evidence rule, evidence of a prior or contemporaneous agreement may not be admitted to vary the terms of a complete, certain, and unambiguous instrument. (Chicago White Metal Casting, Inc. v. Treiber (1987), 162 Ill. App. 3d 562, 569.) The threshold inquiry for application of the rule is whether the writing was intended by the parties as a final and complete expression of the entire agreement. (Chicago White Metal Casting, 162 Ill. App. 3d at 570.) If the face of the instrument indicates no ambiguity regarding the parties’ intent that the writing be the complete expression of the entire agreement, the parties are bound by that writing. Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 288-89.

Unlike article 2 of the Uniform Commercial Code, article 3, applicable to negotiable instruments, does not provide general rules indicating when an instrument may be varied by parol evidence. The only comparable section is section 3—118, which states basic rules of construction applicable to instruments in the case of an ambiguity, precluding the necessity of parol evidence. Ill. Rev. Stat. 1989, ch. 26, par. 3—118.

When construing the terms of a negotiable instrument, courts look to the entire contract in writing and the circumstances under which it was executed. (Main Bank v. Baker (1981), 86 Ill. 2d 188, 200-01.) Thus, when a negotiable instrument is executed at the same time as another writing as part of the same transaction, the documents must be read together as a single agreement. (Ill. Rev. Stat. 1989, ch. 26, par. 3—119(1); Main Bank, 86 Ill. 2d at 201; Krilich v. Millikin Mortgage Co. (1990), 196 Ill. App. 3d 554, 562.) Typical examples of separate writings include agreements providing for a security interest such as a mortgage, chattel mortgage, conditional sale, or pledge. (Ill. Ann. Stat., ch. 26, par. 3—119, Uniform Commercial Code Comment 1, at 85 (Smith-Hurd 1963).) Under these circumstances, parol evidence is admissible for the sole purpose of establishing that the instruments were executed as part of the same transaction. Main Bank, 86 Ill. 2d at 201.

Although section 3—119 of the Code allows an instrument to be modified by a separate writing executed contemporaneously, “it otherwise follows the parol evidence rule that prior or collateral oral agreements are inadmissible to contradict the express terms of a written instrument.” (Main Bank, 86 Ill. 2d at 201-02.) The Uniform Commercial Code Comments emphasize that, when there is an outright contradiction between the note and an accompanying written agreement, “the note may be held to stand on its own feet and not to be affected by the contradiction.” Ill. Ann. Stat., ch. 26, par. 3—119, Uniform Commercial Code Comment 3, at 86 (Smith-Hurd 1963).

In this case, there was no evidence indicating that the notes and the trust deed were executed as part of the same transaction. Rather, the language of the documents indicates that they were executed as separate transactions. Although the notes provide that a security interest in certain property will be taken, the notes and the trust deed are dated 45 days apart. Furthermore, the payees of the notes are not named in the trust deed and did not sign the document. Viewing the entire transaction as a whole, we find the terms of the notes clearly and unambiguously indicate that interest at a rate of 8.5% per year is due and owing and that the notes were intended as a final and complete expression of the agreement between the parties. Thus, the terms of the notes will stand as the complete agreement between the parties.

The record reflects that defendant tendered a check dated July 15, 1990, payable to Richard Horwitz in the amount of $20,000. Assuming the $20,000 payment was timely tendered on July 15, 1990, defendant was still in breach. The terms of the notes required defendant to tender a sum of $6,666.67 to each payee, with interest, on or before July 15, 1990. The $20,000 payment, even if timely tendered, did not contain the interest due and owing under the clear and unambiguous terms of the note. Thus, defendant failed to establish a defense sufficient to refute plaintiffs’ prima facie case. Accordingly, viewing the pleadings, depositions, and admissions on file, together with the affidavits, in the light most favorable to defendant, the non-moving party, we find no genuine issue as to any material fact and that plaintiffs are entitled to judgment as a matter of law.

For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

Affirmed.

INGLIS, P.J., and BOWMAN, J., concur.

       Article 3 of the Uniform Commercial Code—Commercial Paper (Ill. Rev. Stat. 1989, ch. 26, par. 3—101 et seq.) was amended effective January 1, 1992. (See Ill. Rev. Stat. 1991, ch. 26, par. 3—101 et seq.) Section 3—307(2) was amended and renumbered section 3—308. The statutory language of section 3—307(2), cited above, was in effect at the time of the summary judgment hearing.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL OTT, Defendant-Appellant.
    Second Division
    No. 2—91—0867
    Opinion filed November 20, 1992.

      Frank M. Valenti, of Oak Park, and Kristine A. Karlin, of Judge & James, Ltd., of Park Ridge, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Michael Ott, appeals the trial court’s dismissal of his post-conviction petition. Defendant raises three issues on appeal: (1) whether the trial court erred in dismissing the petition without an evidentiary hearing; (2) whether defendant was denied a fair trial when the judge, in the jury trial, commented that defendant’s confession was voluntary; and (3) whether defendant was denied the effective assistance of trial counsel when his attorney did not move to sever the two charges.

Defendant was indicted for the unlawful possession of more than 500 grams of cannabis with the intent to deliver (Ill. Rev. Stat. 1991, ch. 56½, par. 705(e)) and for the unlawful delivery of more than 30 but less than 500 grams of cannabis (Ill. Rev. Stat. 1991, ch. 56½, par. 705(d)). Defendant was released on a recognizance bond and disappeared. Subsequently, defense counsel moved to suppress defendant’s confession. Following an evidentiary hearing, at which several police officers testified, the court denied the motion to suppress because it found that defendant’s statements were voluntary.

Defendant was tried in absentia. The State presented the following evidence. On February 3, 1988, the Lombard police arrested Roger Fisher for selling cannabis. Fisher agreed to participate in a controlled buy from his source, defendant. Several police officers set up surveillance at defendant’s home. On February 4, 1988, at five minutes to 11 p.m., Fisher went to defendant’s home with $365 in prerecorded bills. Fisher purchased one-quarter pound of marijuana and gave defendant the money. Fisher left defendant’s home at 11:05 p.m. and returned to the police station. Fisher gave the officers the bag of marijuana. Fisher told the officers that defendant took him into an office where defendant produced the bag of marijuana. The officers wrote up a search warrant and, at 3:30 a.m., had it signed by a judge in Wheaton.

The officers met with the other officers who were engaged in surveillance at the home in Medinah and then proceeded to execute the warrant. At 4 a.m., the officers knocked on the door. Defendant refused to open the door, so the officers broke the door down. Defendant, his teenage daughter, and his girlfriend were home. In an office in the house, the officers found a garbage bag with numerous smaller ziploc bags inside. The ziploc bags contained marijuana. The officers also found two other baggies of marijuana in the desk and a triple beam scale under the desk. Under a speaker in the living room, the officers found several thousand dollars in cash, including the $365 in prerecorded bills. Finally, the officers found four large garbage bags in the trunk of defendant’s car, which was parked in the attached garage. Each of these bags contained numerous baggies of marijuana. The police seized approximately 5,000 grams of marijuana.

At 6 a.m., one of the officers read the Miranda warnings to defendant, and defendant indicated that he wanted to speak to the officers out of the presence of his daughter. Defendant stated that he earned $300 per week at his job, but he made $700 to $1,000 per week selling marijuana. Defendant sold about 20 pounds per week. Defendant had just picked up 35 pounds of marijuana a few days earlier. Defendant told the officers the name and address of his supplier. Neither defendant’s girlfriend nor his daughter was arrested. The jury found defendant guilty of both offenses.

Defense counsel filed a post-trial motion, which was denied. On October 31, 1988, the court sentenced defendant in absentia to 14 years’ imprisonment. The court did not sentence defendant for the delivery offense because the prosecutor represented that it was a lesser included charge.

On November 29, 1990, defendant filed a motion for a new trial, alleging that his absence was due to circumstances beyond his control. The court denied the motion. On June 13, 1991, defendant filed a post-conviction petition. Defendant alleged that he was denied the effective assistance of counsel because his attorney failed to move to sever the charges. Defendant further alleged that joinder of the two offenses denied him a fair trial. Finally, defendant alleged that he was denied due process of law by the trial judge’s remark, in front of the jury, that defendant’s statements to the police already had been found to be voluntary. The State moved to dismiss the petition. The court granted the motion to dismiss, and defendant timely appealed.

Defendant’s first claim of error is that the trial court erred in dismissing the post-conviction petition without an evidentiary hearing. A post-conviction petition is a collateral attack on the conviction when a defendant’s constitutional rights have been violated (see Ill. Rev. Stat. 1991, ch. 38, par. 122—1). (People v. Enoch (1991), 146 Ill. 2d 44, 50.) A post-conviction petitioner is not entitled to an evidentiary hearing if the trial court, in ruling on the State’s motion to dismiss, determines that it may render a decision based on the petition itself and the record before it. (People v. Griffin (1992), 148 Ill. 2d 45, 53-54.) The trial court dismissed the petition pursuant to section 122—5 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122—5). We conclude that an evidentiary hearing on defendant’s claims was unnecessary because the relevant evidence relating to both issues raised in the petition was in the record before the post-conviction court.

We next address defendant’s contention that his trial counsel rendered ineffective assistance. The relevant standard is the two-pronged Strickland test: whether counsel’s performance was so deficient that it fell below an objective standard of reasonableness, and that, but for counsel's deficient performance, there exists a reasonable probability that the outcome of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; People v. Albanese (1984), 104 Ill. 2d 504.) We need not address the first factor because we conclude that defendant has failed to show any prejudice. People v. Burrows (1992), 148 Ill. 2d 196, 233.

Section 114—7 of the Code of Criminal Procedure of 1963 provides that two charges may be tried together if the offenses were part of a comprehensive transaction. (Ill. Rev. Stat. 1991, ch. 38, par. 114—7.) The most important factors courts consider are the proximity in time and location of the offenses (People v. Trail (1990), 197 Ill. App. 3d 742, 746) and whether there is common evidence for both offenses (People v. Harmon (1990), 194 Ill. App. 3d 135, 140). Here, the offenses occurred within hours of each other at the same location, and, in fact, defendant was committing the possession offense while the delivery offense occurred. The same evidence was relevant to both offenses, because the large amount of marijuana stored in the house rebutted any suggestion that defendant was entrapped into selling the marijuana to Fisher. We conclude that these offenses were so intertwined that they were part of the same transaction. Thus, counsel’s failure to request the severance of the charges did not prejudice defendant’s case, and the trial court properly concluded that this claim should be dismissed.

Finally, defendant contends that the court should not have dismissed his claim that he was denied due process of law when the trial judge stated that defendant’s confession was voluntary. However, improper remarks by a trial judge may be harmless error if the remarks did not constitute a material factor in the defendant’s conviction, or if the remark did not prejudice the defendant. (People v. Williams (1991), 209 Ill. App. 3d 709, 718-19.) The determination whether defendant’s confession was voluntary was not an ultimate issue. Cf. People v. Jenkins (1991), 209 Ill. App. 3d 249, 263 (the trial judge erroneously instructed the jury that an exhibit was a controlled substance when it was the jury’s function to decide that issue; however, the appellate court held that the error was harmless because there was other evidence which showed that it was a controlled substance).

Aside from the statement, the State presented evidence that defendant had several large garbage bags full of marijuana in the trunk of his car and one in the office in his home. Also in defendant’s office, the officers found a triple beam scale and ziploc bags. Fisher testified that defendant sold marijuana to him in the office in the home, and defendant pulled the bag of marijuana out of the desk drawer. Thus, even without the statement, the evidence supports the conclusion that defendant sold large quantities of marijuana. In light of the overwhelming evidence of defendant’s guilt, we conclude that if there was any error in this regard, it was harmless. See People v. Maiden (1991), 210 Ill. App. 3d 390, 396-97.

Moreover, the trial judge’s comment was a response to defense counsel’s objection. Defense counsel sought to prevent admission of the statement into evidence on the basis that it was involuntary. The trial court overruled the objection, remarking, “the voluntariness of the statement has already been determined.” The court then permitted the police officer to testify to the contents of defendant’s statement. We do not construe the judge’s comment as expressing the judge’s opinion on the voluntariness of the statement or as an intent to remove that question from the jury’s determination.

The judge gave the jury the following instruction:

“You have before you evidence that the defendant made a statement relating to the offense charged in the indictment. It is for you to determine whether the defendant made the statement, and if so, what weight should be given to the statement. In determining the weight to be given to a statement, you should consider all of the circumstances under which it was made.”

This is precisely the type of instruction recommended by the supreme court in People v. Cook (1965), 33 Ill. 2d 363, 370. The trial judge did not instruct the jury that defendant’s statement was voluntary, or that he believed that it was. On the contrary, the last sentence of the instruction states that the jury was to consider the circumstances of the statement, which would include the voluntariness of it. (See People v. Nodine (1991), 209 Ill. App. 3d 1031, 1034.) Defendant made a knowing waiver of his Miranda rights in his home, a noncoercive setting. The questioning lasted 20 to 30 minutes. The officers testified that they made no promises to defendant, nor did they threaten him. The evidence supports the conclusion that defendant’s confession was voluntary. See Nodine, 209 Ill. App. 3d at 1034.

Since there was no valid claim to support the post-conviction petition, we conclude the trial court properly dismissed it.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS, P.J., and DOYLE, J., concur.


author: JUSTICE GEIGER

text:
    DENNIS NELSON et al., Plaintiffs, v. GLENN GREENBERG, Defendant-Appellee (United States Fidelity & Guaranty Company, as Subrogee, Plaintiff-Appellant).
    Second District
    No. 2—92—0088
    Opinion filed November 17, 1992.
    Rehearing denied December 23, 1992.
    Richard K. Van Evera and Robert C. Pottinger, both of Barrick, Switzer, Long, Balsley & Van Evera, of Rockford, for appellants.
    John S. Lowry, of Brassfield, Cowan & Howard, of Rockford, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

United States Fidelity & Guaranty Company (USF&G) brought suit in the name of the plaintiffs, Dennis and Mary Nelson, claiming a right of subrogation as the plaintiffs’ insurance carrier for damages resulting from the negligence of the defendant, Glenn Greenberg. The plaintiffs now appeal from an order of the trial court granting summary judgment in favor of the defendant. The plaintiffs contend that summary judgment was improper because the defendant was liable for fire damage to the leased premises.

Prior to October 20, 1988, the plaintiffs entered into an agreement to lease to the defendant two parcels of property located at 613 and 615 Seventh Street, Rockford, Illinois. The locations were leased under separate, but similar, agreements. The lease for the 613 location stated:

“DEPOSIT MADE HEREWITH WILL BE REFUNDED UPON DEPARTURE PROVIDED THE FOLLOWING REQUIREMENTS ARE MET:
1. TENANTS REMAINING ONE YEAR-FULL REFUND.
2. TENANTS REMAINING 90 DAYS-ONE-HALF REFUND.
3. TENANTS REMAINING LESS-THAN 90 DAYS-NO REFUND.
SUBJECT TO 30 DAY NOTICE IN ANY CASE.
UTILITIES — Gas, lights and water will be paid by management.
OCCUPANCY SHALL BE LIMITED TO ABOVE NAMED TENANT. Tenant agrees not to sublet the apartment or assign this agreement. Tenant agrees to conduct him or herself in a manner which will not be inconsiderate of others’ rights. NO PETS — PARTIES—CHILDREN.
IF ANY legal action be necessary, fees will be paid by tenants.
MAJOR MAINTENANCE will be handled by management. Right to enter the apartment during reasonable business hours for the purpose of making repairs, or make routine inspection pursuant to making repairs, is reserved by management.
REPOSSESSION of apartment by management may be made upon three days written notice for non-payment of rent, disorderly conduct or other proper reason.
COLLECTION COSTS — Should tenant not pay the rent due under this agreement, management may take whatever steps necessary to collect said rents, and any collection costs will be added to amount due.
BREAKAGE — Tenants will be charged for all breakage.
NO OUTSIDE STORAGE — waste or trash to be removed weekly by tenant. ’ ’

Although the lease agreement for the 615 location contains minor differences, those differences are not in dispute and do not affect the disposition of this case.

At the time the leases were executed, the plaintiffs had obtained an insurance policy for both locations through USF&G. Although the plaintiffs alleged that the defendant had obtained a renter’s insurance policy covering both locations, there is no evidence in the record of any insurance procured by the defendant, nor what kind of coverage such insurance provided. On October 20, 1988, a fire destroyed both locations, resulting in $107,515.18 in damages. Pursuant to its policy, USF&G paid the plaintiffs the full amount for the fire loss.

USF&G filed this action in the plaintiffs’ names, alleging the defendant’s negligence caused the fire and seeking $107,515.18 in damages. The defendant filed a motion for summary judgment, contending that the plaintiffs had been reimbursed by USF&G for the fire loss and that, pursuant to this court’s ruling in McGinnis ex rel. C.I.E. Service Corp. v. LaShelle (1988), 166 Ill. App. 3d 131, a landlord’s insurer has no subrogation claim against a tenant who negligently caused damage to leased premises. The plaintiffs urged the trial court to follow the Appellate Court, Third District, case of Fire Insurance Exchange v. Geekie (1989), 179 Ill. App. 3d 679, which held that, in the absence of an express agreement to the contrary, a tenant is liable for damage to leased premises resulting from his own negligence.

After hearing argument, the trial court granted the defendant’s motion. In so ruling, the court acknowledged the conflicting cases and stated:

“I think the state of the law is changing to favor the argument presented by [plaintiffs]. Frankly, I think the — the equities are with [plaintiffs]. However, the factor that decided it for me is that [defendant’s] case [McGinnis v. LaShelle (1988), 166 Ill. App. 3d 131,] that he cited from [the second] district could not have been more on point. I think that even though the trial court may have feelings about the equities, that the people have the right to rely on the law as it’s established in this jurisdiction; and I have to accordingly grant the motion brought by [defendant].”

The plaintiffs appealed the order granting summary judgment.

The issue on appeal is whether a landlord’s insurer is entitled to subrogation from a tenant for fire loss where the lease agreement makes no reference to the parties’ liability for fire damage to the leased premises.

After the parties filed their briefs in this appeal, the Illinois Supreme Court rendered its decision in Dix Mutual Insurance Co. v. LaFramboise (1992), 149 Ill. 2d 314. In Dix, the tenant negligently caused a fire which damaged the premises in the amount of $40,579. The landlord’s insurer paid the landlord for the loss and then filed a subrogation action against the tenant for the fire loss. In Dix, the lease provided that the landlord was not responsible for damage to the tenant’s personal property in case of fire. (Dix, 149 Ill. 2d at 321.) However, the lease failed to address who bore the responsibility of the leased premises in case of fire.

Like the plaintiffs in the instant case, the insurance company in Dix contended that the tenant was liable for negligently causing fire damage because the lease did not contain a provision expressly relieving the tenant of liability. The court initially recognized that a tenant is generally liable for fire damage caused to the leased premises by his negligence unless the parties intended to exculpate the tenant from this responsibility. (Dix, 149 Ill. 2d at 319.) However, the court held that there is no requirement that there be an express exculpatory provision in the lease to relieve the tenant of this responsibility; rather, the lease should be viewed “as a whole” and the intent of the parties should determine who bears the burden of risk. (Dix, 149 Ill. 2d at 320-21.) “ ‘[B]ecause the contingency was not covered by express language, it does not follow that the lease may not, when all of its provisions are considered, show that the parties themselves intended that the lessee should not be liable.’ ” (Emphasis omitted.) (Dix, 149 Ill. 2d at 320, quoting Cerny-Pickas & Co. v. C.R. John Co. (1955), 7 Ill. 2d 393, 396.) The lease, when read as a whole, indicated to the court that each party intended to be responsible for his own property. (Dix, 149 Ill. 2d at 322.) The court therefore concluded that the parties intended that the tenant not be liable for fire damage to the premises and that the landlord would look solely to the insurance as compensation for any fire damage to the premises. (Dix, 149 Ill. 2d at 322.) Consequently, Dix held that the insurance company did not have subrogation rights against the tenant.

Here, the leases for both locations make no express provision regarding liability for fire damage or procurement of insurance by either party. Given the guidelines set forth in Dix, we must determine the intent of the parties in the present case by viewing the lease “as a whole.” (See Dix, 149 Ill. 2d at 320-21.) Similar to the lease in Dix, there is a provision in the instant lease which addresses the parties’ responsibility for breakage. The breakage provision provides that the “tenants will be charged for all breakage.” Absent language in the lease relating to fire insurance (cf. McGinnis ex rel. C.I.E. Service Corp. v. LaShelle (1988), 166 Ill. App. 3d 131 (where there was a provision in the lease addressing insurance)) and reading the lease agreement as a whole (see Dix, 149 Ill. 2d at 320-21), we find that it was the intent of the parties that the tenant be liable for the losses resulting from the tenant’s negligence. We therefore hold that the tenant may be liable for fire damage caused by his negligence.

For the reasons expressed above, we reverse the trial court’s order granting summary judgment in favor of the defendant, and we remand the cause for further proceedings.

Reversed and remanded.

McLAREN and BOWMAN, JJ., concur.


author: JUSTICE NICKELS

text:
    MICHAEL CHMIELEWSKI, Plaintiff-Appellant, v. GEORGE KAHLFELDT, Defendant (Oliver Steinhaus et al., Defendants-Appellees and Third-Party Plaintiffs; Joseph Gudlin et al., Third-Party Defendants-Appellees).
    Second District
    No. 2—91—1013
    Opinion filed December 9, 1992.

      Paul B. Episcope and Thomas D. Fazioli, both of Chicago, for appellant.
    Jon Yambert, of Lindner, Speers & Reuland, P.C., of Aurora, Alfred S. Vano and Paul 0. Watkiss, both of Leahy, Eisenberg & Fraenkel, Ltd., of Chicago, and Rooks, Pitts & Poust, of Wheaton, for appellees.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiff, Michael Chmielewski, appeals from an order of the circuit court of Du Page County which granted summary judgment for defendants, Oliver and Bertha Steinhaus, and third-party defendants, Joseph and Marjorie Gudlin, on plaintiff’s complaint for personal injury. Plaintiff’s affidavit was also ordered stricken. On appeal, plaintiff claims the trial court improperly struck his affidavit and that a question of fact exists as to whether the alleged defective condition of the stairs was a contributing proximate cause of plaintiff’s injuries.

Facts gleaned from the depositions and exhibits show that plaintiff and his mother, Margaret Chmielewski, attended a picnic at the home of Oliver and Bertha Steinhaus on July 4, 1985. The Steinhauses lived at 9020 Lemont Road in Downers Grove, Illinois. While being chased by a German shepherd dog, later determined to be owned by the Gudlins, plaintiff fell on the Steinhauses’ concrete steps and injured his knee. Plaintiff is a mentally challenged adult who completed educable mentally handicapped (EMH) classes. When he completed his education, he was at about the third-grade level. Plaintiff has never been declared legally incompetent.

On November 19, 1986, plaintiff filed a complaint against George Kahlfeldt and Oliver and Bertha Steinhaus. In count I plaintiff alleged certain violations of the Animal Control Act (Ill. Rev. Stat. 1983, ch. 8, pars. 365, 366) by Kahlfeldt as the owner of a German shepherd dog alleged to have attacked and injured plaintiff on July 4, 1985. The second count directed against the Steinhauses alleged that they negligently allowed the dog to roam unescorted and without control on their property. Subsequently, Steinhauses filed a third-party complaint against Joseph and Marjorie Gudlin alleging that the Gudlins owned the dog and seeking contribution.

Kahlfeldt filed a motion for summary judgment on September 26, 1989, on the basis that his dog was not the animal involved in the incident. The motions included the depositions of plaintiff taken on December 14, 1988, and plaintiff’s mother, Margaret Chmielewski, taken on April 4, 1989. Steinhauses filed a motion for summary judgment on October 11, 1989.

Plaintiff was allowed to file an amended complaint on December 18, 1989. Count I again alleged violations of the Animal Control Act by Kahlfeldt. Count II now alleged violations of that act by the Steinhauses. Count III sounded in negligence against the Steinhauses in that they failed to maintain adequately the stairs by allowing loose concrete to remain on them and failed to provide handrails by the stairs.

Since the motions for summary judgment were only filed on counts I and II, the trial court granted summary judgment for Kahlfeldt and Steinhauses on those counts. Plaintiff appealed. In a Rule 23 order (Chmielewski v. Kahlfeldt (2d Dist. 1991), No. 2—90—0150 (unpublished order under Supreme Court Rule 23)), this court affirmed the order" granting summary judgment for Kahlfeldt and Steinhauses on counts I and II.

Steinhauses filed a third amended third-party complaint against the Gudlins. Count I alleged negligence by Gudlins in allowing their dog to injure plaintiff. Count II alleged violations of the Animal Control Act. Pursuant to Gudlins’ motion to dismiss, the court dismissed count II. Count I was allowed to stand, and Gudlins filed an answer on July 12, 1990, admitting ownership of the dog.

On July 1, 1991, Gudlins filed a motion for summary judgment. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005.) Gudlins sought summary judgment based on the depositions of plaintiff and Margaret Chmielewski and argued that the Steinhauses owed no duty to plaintiff and that the stairs were not the proximate cause of plaintiff’s injuries but merely a condition. Steinhauses were allowed to join in this motion for summary judgment on July 3, 1991.

Plaintiff filed a response to the motion for summary judgment. The response included an affidavit by plaintiff. The affidavit provided that, after the dog pushed plaintiff, he started to lose his balance, but plaintiff continued to run up the Steinhauses’ stairs. When plaintiff’s foot went onto a stair, he felt it slip on the loose gravel. As he continued to fall, plaintiff reached out for something to prevent him from falling onto the steps, but there was nothing there. In the last paragraph, plaintiff stated that he believed he hit his knee due to a combination of facts, i.e., running away from the dog; the dog pushing plaintiff making him begin to lose his balance; the loose gravel on the stair making his foot slip; and that plaintiff could not stop the fall by grabbing any handrails.

Gudlins filed a motion to strike the affidavit of plaintiff on the ground that it contradicted facts he had testified to in his deposition. A hearing was held on August 7, 1991, and the motion to strike plaintiff’s affidavit was granted. Defendants’ (Steinhauses) and third-party defendants’ (Gudlins) motion for summary judgment was also granted. The. third amended third-party complaint for contribution was found moot. Plaintiff filed a timely notice of appeal.

We first address plaintiff’s contention that the trial court erred in striking his affidavit filed in response to defendants’ and third-party defendants’ motion for summary judgment. A party may not create a genuine issue of material fact by taking contradictory positions, nor may he remove a factual question from consideration just to raise it anew when convenient. (Van’s Material Co. v. Department of Revenue (1989), 131 Ill. 2d 196; Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475.) Admissions at pretrial depositions which are so deliberate, detailed and unequivocal, as to matters within the party’s personal knowledge, will conclusively bind the party-deponent, and he will not be heard to contradict the admissions at trial. (Van’s Material Co., 131 Ill. 2d at 212-13; Young v. Pease (1983), 114 Ill. App. 3d 120.) The judicial policy behind this rule, which is well accepted in summary judgment cases, is that once a party has given sworn testimony he should not be allowed to change his testimony to avoid the consequences of his prior testimony. Commonwealth Eastern Mortgage Co. v. Williams (1987), 163 Ill. App. 3d 103, 109.

Plaintiff claims that defendants did not direct the trial court to an actual clear and unequivocal contradiction in plaintiff’s deposition. In support of this statement, plaintiff points out that during the hearing on the motion to strike the affidavit defendants misstated some of the actual questions asked of plaintiff during his deposition. Plaintiff did not object during the hearing to defendants’ representation of what the deposition contained, and, therefore, any issue he is attempting to raise thereto is waived. (Rexroat v. Devine (1987), 157 Ill. App. 3d 284.) Furthermore, defendants’ motion for summary judgment as well as plaintiff’s response thereto contained pertinent excerpts from plaintiff’s deposition so that the trial court was fully aware of the actual questions posed.

At the time plaintiff’s deposition was taken, his complaint was based upon violations of the Animal Control Act by Kahlfeldt as owner of the dog alleged to have injured plaintiff and upon the Steinhauses’ negligence with respect to Kahlfeldt’s dog. Plaintiff correctly points out that he amended his complaint to add count III, premises liability, prior to the trial court’s and appellate court’s ruling on counts I and II. However, the amendment to the complaint was made after Kahlfeldt filed a motion for summary judgment based on the fact that his dog was not the dog that injured plaintiff. Plaintiff’s deposition was taken by Kahlfeldt’s attorney and Kahlfeldt is no longer a party to this action.

Defendants first respond that the trial court properly struck the affidavit because plaintiff did not sign it. While defendants acknowledge this issue was never raised before the trial court, the record copy shows the affidavit was not signed. Plaintiff’s statement recites that “I, Michael Chmielewski, having been sworn upon oath state.” Plaintiff’s name appears as the person who took the oath and is an affidavit despite his lack of signature. Manuel v. McKissack (1978), 60 Ill. App. 3d 654.

In determining whether plaintiff’s statements were so unequivocal and deliberate to preclude explanation or contradiction by way of affidavit, we are required to consider his entire deposition, not just isolated portions of it. (Schmall v. Village of Addison (1988), 171 Ill. App. 3d 344.) Plaintiff’s statements must be given a meaning consistent with the context in which they are found. (Schmall, 171 Ill. App. 3d at 348-49.) The question of equivocalness is a question of law when considering a motion for summary judgment. (Hansen, 155 Ill. App. 3d at 480.) After reviewing plaintiff’s entire deposition, we find that plaintiff’s testimony was unequivocal and direct in that he fell on the stairs because the dog pushed him. Some relevant parts of plaintiff’s testimony are as follows:

“Q. [Attorney]: And the dog is chasing you at that point?
A. Yes.
Q. Then what happened?
A. Then I ran towards the stairs.
Q. The stairs on the Steinhaus’ home?
A. Yes.
* * *
Q. Do you remember what kind of stairs they were?
A. Like regular concrete stairs.
Q. Concrete stairs. They weren’t wood stairs; they were concrete stairs?
A. Right, concrete stairs.
* * *
Q. Then what happened?
A. The dog pushed me under the stairs.
Q. The dog pushed you?
A. Yes.
Q. Where did the dog push you from? The back?
A. Yes.
* * *
Q. And where were you in relation to the stairs when the dog pushed you?
A. A few feet away from the stairs.
Q. Did you feel the dog push you?
A. Yes.
Q. Did he push you — How would you describe how he pushed you?
A. Hard.
* * *
Q. Then what happened after you felt the dog push you with his nose?
A. Then I fell on the stairs.
* * *
Q. So the dog pushes you, and you are about three feet away from the stairs?
A. Yes.
Q. And you continue to run?
A. Yes.
Q. Then you fell on the steps, correct?
A. Yes.
Q. And you hit your knee?
A. Yes.
Q. On one of the steps?
A. Yes.
* * *
Q. When you fell on the third step, the dog had not pushed you on that third step?
A. Right.
Q. Do you know how you fell on that third step?
A. The dog pushed me. I think so. I don’t know.
Q. Did you lose your balance?
A. Yes.
Q. Did your foot slip off the step?
A. Yes.
Q. The dog pushing you from a few feet away, did that cause you to lose your balance?
A. Yes.”

Plaintiff’s deposition testimony shows that the dog caused him to fall on the stairs. While plaintiff first indicates that he does not know why he fell on the third stair, he then clarifies that statement by stating that his foot slipped off the stair because he lost his balance, and he lost his balance because the dog pushed him. He earlier indicated that the dog pushed him, and he fell on the stairs. Plaintiff also indicated that the stairs were “ordinary concrete stairs.” Plaintiff’s subsequent affidavit which provides that he slipped on gravel on the stairs and reached out for something to prevent him from falling contradicts his deposition testimony and does not merely supplement or clarify it. The affidavit was properly stricken.

Plaintiff contends that Kahlfeldt’s attorney did not take an exhaustive deposition and points out that parties (Gudlins) who were not even parties at the time the deposition was taken sought to use the deposition to their advantage. Plaintiff claims that if this court accepts third-party defendants’ argument, it would have the effect of precluding amendments to a complaint to add new liability theories after a deposition is taken. Plaintiff has cited no authority for his suggestion that only parties at the time a deposition is taken may use a deposition in a motion for summary judgment. It was proper for the Gudlins to rely on plaintiff’s deposition. Nor do we believe that our finding will preclude amendments to complaints, but merely has the effect that any amendment raise an issue of material fact regarding any new theory of liability based on the evidence.

We also note that plaintiff was asked several questions and allowed to clarify his responses regarding the circumstances of his fall. His attorney was present and did not seek to supplement or clarify plaintiff’s responses as to any additional circumstances. (See generally Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1979), 71 Ill. App. 3d 562.) Furthermore, while plaintiff’s attorney stated at the beginning of the deposition that plaintiff’s competency was not being conceded and it was their position that plaintiff was not competent, plaintiff never raised an objection to the trial court concerning plaintiff’s competency. Any objection to plaintiff’s competency is therefore waived. (See Krilich v. Millikin Mortgage Co. (1990), 196 Ill. App. 3d 554.) The record shows that plaintiff was never declared legally incompetent. And, after examining plaintiff’s entire testimony, we find he was not confused as to the reason he believed that he fell on the stairs. While plaintiff cites to Young (114 Ill. App. 3d 120), wherein the facts referred to the deponent’s nervousness and likely confusion in being a deponent, the reviewing court’s discussion and holding do not rest on the issue of deponent’s competency. Cf. Olesker’s Exciting World, 71 Ill. App. 3d 562 (wherein the appellate court found the deponent was not confused).

Next, plaintiff contends that without his affidavit there is a question of fact whether the loose gravel on the steps and/or the lack of handrails were contributing causes of plaintiff’s injuries. He argues that the trial court had to ignore his deposition testimony that his foot slipped and his mother’s deposition testimony that there was loose gravel on the steps and no handrails. Plaintiff claims the trial court had to interpret the testimony to exclude other causes which could have contributed to the fall. Plaintiff asserts that the lack of handrails always presents a factual issue of proximate cause for a jury, citing Kalata v. Anheuser-Busch Cos. (1991), 144 Ill. 2d 425, Murphy v. Messerschmidt (1977), 68 Ill. 2d 79, O’Donnell v. Barach (1953), 1 Ill. App. 2d 157, and Doran v. Boston Store (1940), 307 Ill. App. 456.

The purpose of summary judgment is not to decide issues of fact but to determine whether any genuine issue of fact exists. (Commonwealth, Eastern Mortgage Co. v. Williams (1987), 163 Ill. App. 3d 103, 108.) A motion for summary judgment can only succeed “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).) A court of review will not reverse an order granting summary judgment unless it finds that a material question of fact is present and the moving party is not entitled to judgment as a matter of law. (Williams, 163 Ill. App. 3d at 108.) Absent affirmative and positive evidence that a defendant may have proximately caused a plaintiff’s injuries, a plaintiff fails to establish the existence of a genuine issue of material fact. (See Gatlin v. Ruder (1990), 137 Ill. 2d 284, 293; Kennedy v. Joseph T. Ryerson & Sons, Inc. (1989), 182 Ill. App. 3d 914, 918.) Liability cannot be established where the cause of the injury is shown by surmise or conjecture. Kennedy, 182 Ill. App. 3d at 918.

Margaret Chmielewski observed the incident. In her deposition, which was consistent with plaintiff’s on this point, she testified that the dog jumped on plaintiff’s legs before plaintiff was on the stairs. Plaintiff “kind of stumbled” when the dog jumped on him and plaintiff went up the stairs. Margaret Chmielewski said there was loose gravel on the stairs and no handrails; however, there is no evidence from her testimony that these conditions were the proximate cause of plaintiff’s injuries.

Plaintiff testified that the dog pushed him and he fell on the stairs. Plaintiff indicated at first that he did not know why he fell on the third stair. Based on this statement, even if there was some defect with the stairs, plaintiff could not show that any defect caused him to fall. Liability cannot be predicated upon surmise or conjecture as to the cause of the injury, but proximate cause can only be established when there is a reasonable certainty that defendants’ acts caused the injury. Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813; see Kennedy, 182 Ill. App. 3d at 919.

While plaintiff points out that plaintiff’s foot slipped off the third stair, it is apparent from plaintiff’s deposition that it did not slip due to loose gravel or the absence of handrails. Plaintiff said that he lost his balance and his foot slipped. He said he lost his balance because the dog pushed him. No genuine issue of material fact was presented regarding the proximate cause of plaintiff’s fall, and, therefore, summary judgment for defendants was proper. (See Gatlin, 137 Ill. 2d at 293.) This conclusion is not based upon two questions asked of plaintiff during his deposition as plaintiff suggests, but is based on all the evidence found in the depositions.

Plaintiff claims that the lack of handrails always presents a factual issue of proximate cause citing to Kalata v. Anheuser-Busch Cos. (1991), 144 Ill. 2d 425. In Kalata the plaintiff testified in a bench trial that another individual exiting before him used the left handrail because there was no right handrail. The plaintiff testified that then he took two steps across the icy stoop in order to reach the left handrail and fell as he took the two steps. Although the supreme court found that the purpose of handrails was to prevent falls down a stairway, it made that finding regarding the purview of the ordinance in issue which required handrails. Defendants herein distinguish Kalata on the basis that plaintiff did not allege an ordinance violation in his complaint. While plaintiff claims that defendants have waived this point because they did not move to strike plaintiff’s allegations or raise this point below, defendants have properly distinguished a case relied upon by plaintiff on appeal from the facts of this case. In any event, this argument concerns the negligence of the Kalata defendant when the distinction between Kalata and this case involves proximate cause.

The supreme court in Kalata found that the trial court could reasonably infer from the evidence that the absence of a right handrail resulted in the plaintiff taking the two steps which led to his fall. (Kalata, 144 Ill. 2d at 438.) The court noted that the trial court’s remark that “we can’t know what the plaintiff would do” if a right handrail had been available was merely an acknowledgement of the court’s inherent inability to recreate all the circumstances of the prior incident. (144 Ill. 2d at 438.) Unlike Kalata, there is no evidence in this case that would support a reasonable inference that the lack of a handrail was a proximate cause of plaintiff’s fall. To the contrary, the evidence showed that the dog was the proximate cause of plaintiff’s fall.

In Murphy v. Messerschmidt (1977), 68 Ill. 2d 79, the supreme court found that the appellate court erred in finding the lack of handrails was not a cause of the plaintiff’s fall. The appellate court had interpreted the evidence to reach its conclusion that a verdict should have been directed for the defendant on the basis of proximate cause. The plaintiff had testified that both of her hands were filled with something when she fell and “apparently” made no attempt to grasp the posts next to the steps. (Murphy v. Messerschmidt (1976), 41 Ill. App. 3d 659, 664.) The supreme court found the appellate court interpreted the evidence to determine that the severity of the rain caused the accident when these were questions of fact for the jury. Unlike Murphy, plaintiff’s deposition testimony not only failed to describe any attempt to grasp for a handrail, but established that the actions of the dog caused plaintiff’s fall. The evidence before the trial court did not have to be “interpreted” and raised no question of material fact to require a jury determination on proximate cause.

Plaintiff also cites to O’Donnell v. Barach (1953), 1 Ill. App. 2d 157, and Doran v. Boston Store (1940), 307 Ill. App. 456. These cases were cited by the Murphy court. (Murphy, 68 Ill. 2d at 87.) In O’Donnell there was evidence that as the plaintiff fell she reached for something to hold but there were no handrails. Doran also contained testimony by the plaintiff that as she was falling, she grasped for a railing but there was no railing. In each case there was evidence from which a factual question of proximate cause was presented. We note that in Morton v. F.B.D. Enterprises (1986), 141 Ill. App. 3d 553, the appellate court reversed a jury verdict for the plaintiff which was based on the negligence of the defendant. The plaintiff had fallen when she was struck by another patron when the patron fell down some stairs. The patron testified that she believed she fell because the top step was too heavily carpeted. She testified that there was no handrail, but she did not at any time indicate that the absence of the railing contributed in any way to her fall. The reviewing court concluded that based on the evidence there was no relationship shown between the defendant’s conduct (there were other aspects of this conduct in question as well) and the patron’s fall, which in turn caused the plaintiff’s fall. The plaintiff failed to establish a prima facie case due to her failure to establish causation. Morton, 141 Ill. App. 3d at 560.

The mere fact that Margaret Chmielewski testified in her deposition that there were no handrails by the stairs did not present a factual issue of proximate cause to be determined at a trial under the facts of this case. Plaintiff’s testimony established that he fell due to the actions of the dog and never indicated that the absence of handrails, or loose gravel, contributed in any way to his fall.

Based on the foregoing reasoning, the judgment of the circuit court is affirmed.

Affirmed.

WOODWARD and GEIGER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOROTHY MORRIS, Defendant-Appellant.
    Second District
    No. 2—90—1404
    Opinion filed November 10, 1992.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Dorothy Morris, was found guilty by a jury of first-degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(a)(1)) and one count of attempted murder (Ill. Rev. Stat. 1989, ch. 38, par. 8—4(a)). The circuit court of Winnebago County sentenced defendant to a 20-year term of incarceration for murder, followed by a 10-year consecutive sentence for attempted murder.

On appeal, defendant argues that (1) the judge tendered incorrect instructions on a special verdict of guilty but mentally ill, (2) the court abused its discretion in sentencing defendant to consecutive terms of imprisonment, and (3) the statutory scheme for first-degree and second-degree murder is unconstitutional. We vacate the judgment in part and remand the cause for resentencing.

On February 2, 1990, defendant began a search for her husband, Peanut, who did not return from work that evening. Proceeding to an area of town which she considered dangerous, defendant carried a gun on her person. From her automobile, defendant eventually spotted Peanut as he left a local tavern with another woman, Amelia Woods. Aware that he was being followed, Peanut stopped his vehicle and told defendant to cease following him. Defendant then returned home. The following morning, accompanied by a friend, defendant located Peanut’s vehicle and identified the house in which he was present. After gaining entrance to the house, defendant claims that she observed her husband and Woods engaging in sexual intercourse. Contrary to defendant’s claim, Woods denied that she and Peanut were having sexual intercourse when defendant arrived. Peanut stood up and, as he approached defendant, defendant shot him in the head with the gun she carried with her from the night before. Woods jumped behind a bed. Defendant then proceeded in Woods’ direction-, pointed the gun downward towards Woods’ forehead and said, “Bitch, I am going to kill you too.” The gun clicked five times, but did not fire.

Experts at trial explained that the bullets contained in defendant’s handgun were meant for a semiautomatic pistol rather than the revolver used by defendant. Specifically, the ammunition used lacked a rim around the base which would have held the cartridge in place. As a result of this error, when the gun was pointed downward, the cartridges slid forward in the chamber, thus preventing the gun from firing.

Defendant first argues that the jury received incorrect instructions on the guilty but mentally ill verdict, which resulted in error requiring a new trial. Before retiring for its deliberations, the court tendered to the jury the following instructions:

“A special verdict of guilty but mentally ill may be returned by you instead of a general verdict of guilty if you find that the State has proved beyond a reasonable doubt each of the following propositions to be present in this case:
First: That the defendant is guilty of whichever murder charge you found earlier to be applicable; and
Second: That the defendant was not legally insane at the time she committed that murder; and
Third: That the defendant was mentally ill at the time she committed that murder.
If you find from your consideration of all the evidence that each one of these propositions concerning the guilty but mentally ill verdict has been proved beyond a reasonable doubt, you may return the special verdict finding the defendant guilty but mentally ill of the murder charge that you earlier found to be applicable.
If you find from your consideration of all the evidence that either the second or third proposition concerning the guilty but mentally ill verdict has not been proved beyond a reasonable doubt, you should return the general verdict finding the defendant guilty of the murder charge that you earlier found to be applicable.” (Emphasis added.)

A similar instruction was given with respect to the charge of attempted murder.

Defendant argues that instructing the jury that it could not return a guilty but mentally ill verdict, unless the State proved mental illness beyond a reasonable doubt, effectively rendered first-degree murder and attempted murder verdicts easier to obtain than the special verdict of guilty but mentally ill. Defendant asserts that the instructions should have made provision for a special guilty but mentally ill verdict under circumstances where the defendant proved by a preponderance of the evidence that she was mentally ill.

In the present case, without objection by counsel, the trial court tendered jury instructions which were based upon a statute which was inapplicable to the instant criminal action due to the date of the criminal offense. The instructions tendered by the court mirrored the law in effect in 1989 which directed:

“[T]he court, where warranted by the evidence, shall also provide the jury with a special verdict form of guilty but mentally ill, as to each offense charged and shall separately instruct the jury that a special verdict of guilty but mentally ill may be returned instead of a general verdict, but that such special verdict requires a unanimous finding by the jury beyond a reasonable doubt that the defendant committed the acts charged and that the defendant was not legally insane at the time of the commission of those acts but that he was mentally ill at such time.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 115—4(j).

Defendant correctly asserts that trial court should have tendered an instruction based upon the law in effect as of 1990, which provided, in pertinent part:

“[A] special verdict of guilty but mentally ill may be returned instead of a general verdict, but that such special verdict requires a unanimous finding by the jury that: (1) the State has proven beyond a reasonable doubt that the defendant is guilty of the offense charged; and (2) the defendant has failed to prove his insanity as required in subsection (b) of Section 3—2 of the Criminal Code of 1961, as amended, and subsections (a), (b) and (e) of Section 6—2 of the Criminal Code of 1961, as amended; and (3) the defendant has proven by a preponderance of the evidence that he was mentally ill, as defined in subsections (c) and (d) of Section 6—2 of the Criminal Code of 1961, as amended, at the time of the offense.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 115—4(j).

Although defense counsel acquiesced in the giving of these instructions, we decline to apply the waiver rule on this issue because the plain error rule applies to constitutional errors which may deny a defendant a fair trial. People v. Buckner (1991), 220 Ill. App. 3d 468, 473.

Defendant relies upon People v. Fierer (1988), 124 Ill. 2d 176, in support of her request for a new trial because of the trial court’s misstatement of the quantum of proof necessary to support a guilty but mentally ill verdict. Defendant asserts that the instant trial court’s instruction prevents the jury from returning a guilty but mentally ill verdict unless the State proved such mental illness beyond a reasonable doubt. Defendant argues that a proper instruction would have allowed a guilty but mentally ill verdict if defendant had proved mental illness by a preponderance of the evidence. Thus, the erroneous instruction made first-degree murder and attempted murder verdicts easier to obtain than the special verdicts of guilty but mentally ill.

In Fierer, the trial court instructed the jury that in order to reach a guilty but mentally ill verdict it had to find defendant sane by a preponderance of the evidence and mentally ill beyond a reasonable doubt. Our supreme court held that this instruction imposed two different burdens for the same proposition. The court explained that the phrase “mental illness” is statutorily defined as a possession of certain thought, mood, or behavioral disorders which do not rise to the level of legal insanity. Thus, the erroneous instructions would essentially put the State in a position where it must prove noninsanity beyond a reasonable doubt. In other words, the State would have to prove sanity “by a preponderance of the evidence” as well as “beyond a reasonable doubt.”

The basis of the court’s reversal was that “[t]he modification of the burden of proof from ‘not insane beyond a reasonable doubt’ to ‘sane by a preponderance of the evidence’ had the undeniable effect of making the [guilty but mentally ill] verdict easier to attain and more likely to resdlt [than a not guilty verdict].” (Fierer, 124 Ill. 2d at 187.) In essence, the trial court was held to have altered the “beyond a reasonable doubt” language of section 115—4(j) such that the State had fewer hurdles. to overcome in order to achieve a guilty but mentally ill verdict. Because defendant in Fierer was found guilty but mentally ill at the trial level, our supreme court was then able to determine that such prejudice might have occurred and,' therefore, a retrial was justified.

The facts of the present case are distinguishable from those in Fierer because the instant instruction rendered the guilty but mentally ill verdict more difficult to obtain. Thus, the jury may have been more inclined to render a general verdict of guilt rather than a guilty but mentally ill verdict. In our view, this situation does not require retrial.

The danger the Fierer court sought to avoid was one where burdens of proof are misstated with the result that a guilty verdict is made easier to obtain. By modifying the burden of proof from “not insane beyond a reasonable doubt” to “sane by a preponderance of the evidence,” the trial court in Fierer created a situation where defendant’s insanity defense could be more easily defeated.

In the present case, the choice is not one between “guilt” and “innocence,” but rather one between “guilty” and “guilty but mentally ill.” A guilty but mentally ill verdict does not relieve a defendant of criminal responsibility. (People v. Johnson (1991), 146 Ill. 2d 109, 131.) A defendant convicted by a guilty but mentally ill verdict is subject to any sentence which could have been imposed upon a defendant who had been convicted of the same offense without a finding of mental illness, including the death penalty. (Johnson, 146 Ill. 2d at 131-32; Ill. Rev. Stat. 1989, ch. 38, pars. 6-2(c), 1005-2—6(a).) The principal difference between the two verdicts is that, upon a finding of guilty but mentally ill, the Department of Corrections must “cause periodic inquiry and examination to be made concerning the nature, extent, continuance, and treatment of the defendant’s mental illness” and to provide “such psychiatric, psychological, or other counseling and treatment for the defendant as it determines necessary.” Ill. Rev. Stat. 1989, ch. 38, par. 1005—2—6(b).

In the present case, the State concedes the presence of evidence sufficient to support a verdict of guilty but mentally ill and would not oppose a modification of the judgment to reflect such a verdict. Therefore, we modify the judgment below to reflect a guilty but mentally ill verdict in accordance with Supreme Court Rule 615(b)(1) (134 Ill. 2d R. 615(b)(1)). Our holding in this regard ameliorates any prejudice that may have occurred as a result of defense counsel’s failure to tender proper instructions, and, thus, an ineffective assistance of counsel claim cannot be supported.

The State asserts that resentencing is not required because the trial judge fully considered defendant’s mental illness at sentencing below. We do not agree. In our view, a new sentencing hearing is necessary to guarantee that the jury’s faulty verdicts did not affect the court’s sentencing decisions. See People v. Gurga (1988), 176 Ill. App. 3d 82.

We next address defendant’s assertion that it was error for the trial court to impose consecutive sentences because the murder and murder attempt constituted a single course of conduct. Because of our holding on the first issue, we address this matter because it will be relevant upon resentencing.

Defendant bases her claim in this regard on section 5—8—4(a), which provides:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where the defendant was convicted of a violation of Section 12—13 or 12—14 of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4(a).

Below, we will highlight a number of cases which apply the “single course of conduct” language used in the statute cited above. While some of these cases are critical of others, we believe they can be reconciled.

In determining whether the defendant’s actions constituted a single course of conduct, courts will often examine the motivations behind those actions. For example, in People v. Stokes (1988), 172 Ill. App. 3d 534, the defendant was convicted of two counts of armed robbery and one count of attempted murder. The murder attempt involved a shot fired by the defendant as he left the scene of the robbery. The court determined that the armed robbery involved a different criminal objective than did the murder attempt incident to the escape. Therefore, consecutive sentences were properly imposed. Thus, in imposing consecutive sentences, the court in Stokes examined the record for the existence of separate and distinct acts and then sought to determine whether separate motivations existed behind those acts. Stokes, 172 Ill. App. 3d at 537.

Not all crimes involving multiple acts are deemed to be the result of independent motivations. For example, in People v. Miller (1989), 193 Ill. App. 3d 918, the defendant was found guilty of the offenses of voluntary manslaughter of two individuals. The trial court ordered that the sentences for each conviction be served consecutively. However, on appeal, the court modified the consecutive sentence to concurrent sentences. The reason for the court's holding was that the defendant shot both the decedents on the basis of the same motivation, i.e., to protect himself from the decedents’ attack. Thus, because there was no change in the defendant’s motivation between the simultaneous shootings, no articulable basis could be found to support a substantial change in the nature of the criminal objective.

Our review of the cases in this area indicates that a finding of independent criminal motivation must be supported by the record. In People v. Davis (1986), 151 Ill. App. 3d 435, the court found error in the imposition of consecutive sentences where a paucity of evidence clouded the issue as to whether the defendant intended to commit two crimes in a single course of conduct. Thus, the appellate court determined that there was no basis in the record to support the trial court’s finding that the defendant’s sole objective was to commit a burglary and that the intent to commit sexual assault was found only after the home was entered.

The holding in Davis was strongly criticized by People v. Abrams (1990), 205 Ill. App. 3d 295. The basis of this criticism rested upon the following language used by the Davis court:

“It is equally possible under this evidence that defendant entered [the victim’s] home with the intent to commit both a theft and a sexual assault.” (Davis, 151 Ill. App. 3d at 445.)

The Abrams court determined that this “equally possible” test was not one known to the law. The Abrams court argued that a finding that a defendant’s action constituted a “single course of conduct” which would prevent the imposition of consecutive sentences is not a finding which is determined by answering the question which asks whether it is “equally possible” that defendant’s actions constituted a single course of conduct rather than one which involved a substantial change in the nature of the criminal objective. We respectfully disagree with the Abrams court’s reading of Davis.

In making its determination, the Davis court relied upon People v. Morgan (1976), 44 Ill. App. 3d 459. In Morgan, the court determined that there was nothing in the record which would support a finding that a substantial change in the nature of defendant’s criminal objective took place. Therefore, the court rejected the imposition of consecutive sentences by the trial judge. Morgan, 44 Ill. App. 3d at 467.

Likewise, the Davis court determined that there was nothing in the record to support a finding that defendant’s criminal objective changed during the course of the crime. (Davis, 151 Ill. App. 3d at 445.) Thus, the Davis court properly held that, absent evidence in the record which would support a finding that defendant’s criminal objective substantially changed, a consecutive sentence cannot be imposed. Contrary to the Abrams court, we do not view the Davis court’s comment regarding what was “equally possible” as a statement of a new standard of proof.

The defendant in Davis was convicted of the offenses of home invasion, residential burglary, and aggravated criminal sexual assault. The State contended that testimony by a, witness asserting defendant’s intention to “hustle,” the absence of cash in the victim’s purse, and defendant’s movement from the kitchen to the victim’s bedroom show that defendant did not form the intention to rape the victim until he had entered her home. The Davis court determined that this evidence was insufficient to support a finding that defendant formed a substantially different criminal objective during the course of the crime.

In Morgan, the defendant was found guilty of the offenses of burglary and arson. The State suggested that a consecutive sentence was proper because the defendant’s criminal objective changed to arson after he failed to open a safe. The court determined that this mere suggestion, alone, unaccompanied by other facts in the record, would not support a finding that there was a substantial change in the nature of the defendant’s criminal objective. Morgan, 44 Ill. App. 3d 459.

In Abrams, the defendant was convicted of the offenses of aggravated criminal sexual assault and residential burglary. The Abrams court determined that there was sufficient evidence to support a finding of a substantial change in the defendant’s criminal objective because, by his own admission, he was not aware of the victim’s presence while he was committing the burglary. It was only while he was checking the “rest of the apartment” when he took note of the victim and then proceeded to rape her. Thus, contrary to Davis and Morgan, the record in Abrams supported a finding of a changed criminal objective.

In People v. Miles (1991), 217 Ill. App. 3d 393, the defendant was convicted of two counts of home invasion, five counts of aggravated criminal sexual assault, one count of criminal sexual assault, one count of aggravated unlawful restraint, and two counts of residential burglary. The crimes committed on the victim in Miles took place over many hours during which the victim was sexually assaulted, physically abused, and forced to withdraw funds from her bank account.

Like Abrams, the Miles court rejected the “equally possible” language used in the Davis opinion. At this point we reassert this misapprehension of the Davis opinion. Davis simply held that there was insufficient evidence of changed criminal objective to support the imposition of a consecutive sentence. The Miles decision is not inconsistent with this view of the Davis opinion. The court in Miles enunciates the specific facts which support a finding that the defendant’s criminal objective substantially changed as the progress of the crime proceeded from robbery to rape. When the defendant’s motivation was to obtain money, he threatened to rape the victim if she did not procure the same. Subsequently, defendant’s objective changed, and he proceeded to rape the victim in accordance with a new motivation, which did not comport with the terms of his previous threat. Thus, applying the independent motivation test in light of supportive facts which rise to a level beyond that of mere allegation, these opinions can be reconciled.

We determine the imposition of consecutive sentences to have been proper because there is evidence to support a finding by the trial court that the attempted murder of Woods was motivated by a criminal objective which differed from the motivation to murder Peanut. To reiterate, the record supports the trial court’s implicit determination that the defendant’s objective changed. By this determination, we are not commenting on what sentence should be imposed upon remand.

Finally, defendant asserts that the current Illinois statutory scheme for first-degree and second-degree murder is unconstitutional. We rejected such an argument in People v. Jerome (1990), 206 Ill. App. 3d 428, and we see no reason to reverse that decision today.

The judgment of the circuit court of Winnebago County of guilty of murder is vacated; the judgment of guilty of murder but mentally ill is entered; the judgment of guilty of attempted murder is vacated; the judgment of guilty of attempted murder but mentally ill is entered; and the cause is remanded for resentencing on both convictions (guilty of murder but mentally ill and guilty of attempted murder but mentally ill) consistent with this opinion.

Affirmed in part; modified in part; vacated in part and remanded.

INGLIS, P.J., and DUNN, J., concur.