author: PRESIDING JUSTICE CERDA

text:
    JEFFREY MARS, d/b/a Mars Sewer Service, Plaintiff-Appellant, v. GEORGE PRIESTER, d/b/a Priester Aviation Service, et al., Defendants (Leonard Dombrowski, d/b/a The Plumbing and Heating Company, Defendant-Appellee).
    First District (3rd Division)
    No. 1—90—0590
    Opinion filed November 7, 1990.
    Rehearing denied December 20, 1990.

      Jerome W. Pinderski, Jr., of Pinderski & Pinderski, Ltd., of Palatine, for appellant.
    Thomas D. Resnick, of Palatine, for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

This is an appeal from a judgment entered in favor of plaintiff and against defendant Leonard Dombrowski, d/b/a The Plumbing and Heating Co., in the amount of $2,744. Plaintiff entered into a written contract with defendant whereby he would be paid $16,000 for the installation of storm and sanitary sewers at Palwaukee Airport in Wheeling, Illinois. Plaintiff installed the storm sewer lines and was paid $7,000. Plaintiff was unable to install the sanitary sewers because defendant did not remove excess water from the excavation site. Prior to trial, the parties stipulated that a settlement sum of $3,000 would be paid to plaintiff by the other defendants named in the lawsuit. Following a bench trial, the trial court entered a written order on September 6, 1989, that: (i) judgment was entered in favor of plaintiff and against defendant in the amount of $2,744; (2) attorney fees and costs in an undetermined amount were awarded to plaintiff as requested in count II of the complaint against defendant; and (3) a hearing was scheduled for October 20, 1989, to consider plaintiff’s petition for attorney fees and costs.

Plaintiff filed a petition for recovery of attorney fees and costs on October 20, 1989. Plaintiff also filed a motion to reconsider the amount of the judgment on November 30, 1989. The hearing on the petition for attorney fees was continued to November 30, 1989, when the trial court heard oral argument from the parties and took the questions under advisement. On February 14, 1990, the trial court denied plaintiff’s petition for attorney fees and costs because plaintiff had not sustained a showing of reasonableness. Two days later, the trial court denied plaintiff’s motion to reconsider the amount of the judgment because it had not been timely filed since the court believed that the order of September 6, 1989, had been a final judgment. Plaintiff then filed a notice of appeal on February 27, 1990.

Plaintiff raises the following issues on appeal: (1) the trial court erred in refusing to award him attorney fees and costs and (2) the trial court erred in denying his post-trial motion to reconsider the amount of the judgment because its order of September 6, 1989, was not a final judgment.

Initially, we must consider whether or not plaintiff’s notice of appeal was timely so that we would have jurisdiction to consider the merits of his appeal.

Supreme Court Rule 303(a)(1) (107 111. 2d R. 303(a)(1)) provides:

“Except as provided in paragraph (b) below, the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending post-trial motion.”

Where the circuit court enters a final order or judgment, a party to the action has 30 days within which to file an appeal, and for purposes of Supreme Court Rule 303 an order is final if it “ ‘terminatefs] the litigation between the parties on the merits of the cause,’ or ‘disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof.’ ” (Hernandez v. Fahner (1985), 135 Ill. App. 3d 372, 377, 481 N.E.2d 1004, 1008, quoting Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 48, 147 N.E.2d 371.) “If the order determines ‘the ultimate rights of the parties with respect to distinct matters which have no bearing on other matters left for further consideration or if the matters left for future determination are merely incidental to the ultimate rights which have been adjudicated,’ it must be considered final.” (Hernandez v. Fahner (1985), 135 Ill. App. 3d 372, 377, 481 N.E.2d 1004, 1008, quoting Barnhart v. Barnhart (1953), 415 Ill. 303, 309, 114 N.E.2d 378.) However, as long as any party’s timely post-trial motion remains unresolved, the underlying judgment is not final and complete jurisdiction remains in the circuit court. Hernandez v. Fahner (1985), 135 Ill. App. 3d 372, 481 N.E.2d 1004; In re Marriage of Uphoff (1983), 99 Ill. 2d 90, 457 N.E.2d 426.

The record shows that the order entered on September 6, 1989, did not dispose of the rights of the parties upon the entire controversy. In fact, the trial court specifically left unsettled the amount of attorney fees and costs sought in count II of the complaint, and the court indicated that the matter was to be determined at a later time.

We find that plaintiff’s request for attorney fees is a “claim” as that term is used in Supreme Court Rule 304(a) (107 111. 2d R. 304(a)). Supreme Court Rule 304(a) states in pertinent part:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.”

The attorney fees claim meets all of the criteria set out in Rule 304(a). It is a matter involved in the action; it is a possible right of plaintiff and a possible liability for defendant. (Hernandez v. Fahner (1985), 135 Ill. App. 3d 372, 481 N.E.2d 1004; Hise v. Hull (1983), 116 Ill. App. 3d 681, 452 N.E.2d 372.) Because the request for attorney fees and costs is a “claim” under Rule 304(a), it is not an issue incidental to the merits of the case. Therefore, the September 6, 1989, order was not a final judgment. The September 6, 1989, order did not state there was no just reason for delaying enforcement or appeal.

Plaintiff’s motion to reconsider the amount of the judgment therefore was timely and extended jurisdiction in the trial court until disposal of the motion. Since the 30-day period for filing a notice of appeal runs from the final judgment and the circuit court did not dispose of the last pending motion until February 16, 1990, plaintiff’s notice of appeal which was filed on February 27, 1990, was timely since it was within the 30-day period required by Supreme Court Rule 303(a). We will now proceed to discuss the merits of the appeal.

Plaintiff argues that the trial court erred in refusing to award him attorney fees and costs. Plaintiff claims that: (1) his petition for recovery of attorney fees and costs was legally sufficient to support the relief sought; (2) he has satisfied the criteria needed to judge the reasonableness of his attorney fees and costs; and (3) a refusal to allow him attorney fees and costs violates public policy.

In all cases where an award of attorney fees is appropriate, only those fees which are reasonable will be allowed, the determination of which is left to the sound discretion of the trial court. The party seeking the fees, whether for himself or on behalf of a client, always bears the burden of presenting sufficient evidence from which the trial court can render a decision as to their reasonableness. An appropriate fee consists of reasonable charges for reasonable services; however, to justify a fee, more must be presented than a mere compilation of hours multiplied by a fixed hourly rate or bills issued to the client. The petition for fees must specify the services performed, by whom they were performed, the time expended thereon and the hourly rate charged therefor. It is incumbent upon petitioner to present detailed records maintained during the course of the litigation containing facts and computations upon which the charges are predicated. Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424.

Initially, we note that the existence of a contractual provision obligating one party to pay attorney fees does not relieve the other of its burden to establish the reasonableness of the amount requested. (See Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424.) Here, counsel’s petition consisted of: (1) gen eral background of his legal qualifications; (2) hourly rate charged to his client; (3) monthly computations of time expended on various matters on behalf of his client; and (4) schedule of costs. After carefully reviewing the record in light of the holding in Kaiser v. MEPC American Properties, Inc., we affirm the trial court’s denial of attorney fees and costs. As in Kaiser, plaintiff has failed to provide an adequate basis in his petition on which to predicate a fee award, and without more detailed information concerning the nature of the actual time expended in each of the legal tasks performed, the identity of who performed them, how they related to the litigation and whether they were necessarily required, it was impossible for the trial court to render a finding that they were reasonable and, therefore, compensable. (See Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424.) Kaiser held that it is impossible to determine exactly what amount of time was expended on each task when the time for all work performed by an attorney on a given day has been aggregated into a single hourly total for that day. The plaintiff in the present case therefore cannot be permitted to aggregate all the work performed within a given month into a single hourly total for that month. The decision of the trial court will not be reversed absent an abuse of discretion (Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424; Losurdo Brothers v. Arkin Distributing Co. (1984), 125 Ill. App. 3d 267, 465 N.E.2d 139), and we hold that no abuse of discretion existed.

Finally, plaintiff argues that the trial court erred in its computation of damages awarded to plaintiff. Plaintiff argues that his costs ($1,244) should have been subtracted from the $6,000 owed to him and the $1,500 in consequential damages should have been added to the remainder, thus entitling him to an award of $6,256.

Although the trial court conducted a bench trial, the transcript of trial proceedings is not contained in the record on appeal. An appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error. (Dell’Armi Builders, Inc. v. Johnston (1988), 172 Ill. App. 3d 144, 526 N.E.2d 409.) Plaintiff has failed to supply the transcript here.

In the absence of such a record on appeal, and upon a claim of error, it will be presumed that the order entered by the trial court was in conformity with law and had a sufficient factual basis. Any doubts which may arise from the incompleteness of the record will be resolved against the appellant. (Dell’Armi Builders, Inc. v. Johnston (1988), 172 Ill. App. 3d 144, 526 N.E.2d 409; Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.) In the absence of a report of the proceedings, particularly when the judgment order states that the court was fully advised in the premises, a reviewing court will indulge in every reasonable presumption favorable to judgment, order or ruling from which an appeal is taken and must presume that the evidence heard by the trial court was sufficient to support the judgment absent any contrary indication in the record. (Dell’Armi Builders, Inc. v. Johnston (1988), 172 Ill. App. 3d 144, 526 N.E.2d 409.) The September 6, 1989, order states that the court was fully advised in the premises and that it had considered the evidence; therefore, we presume that the evidence heard by the trial court was sufficient to support its judgment. Accordingly, we cannot say that the trial court’s decision regarding the computation of damages was improper.

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

Judgment affirmed.

RIZZI and FREEMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANNY QUIVER, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—1017
    Opinion filed November 8, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Thomas J. Brosnan and Violet Ricks, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Jeanette Sublett, Special Assistant State’s Attorney, and Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial, defendant, Danny Quiver, was found guilty of home invasion (111. Rev. Stat. 1985, ch. 38, par. 12 — 11(a)(2)), residential burglary (111. Rev. Stat. 1985, ch. 38, par. 19 — 3), and aggravated battery (111. Rev. Stat. 1985, ch. 38, par. 12 — 4(a)). Defendant was sentenced to 12 years in the Illinois Department of Corrections.

Defendant appeals, seeking reversal of his home invasion and residential burglary convictions and remand of the cause for resentencing for the aggravated battery conviction; or reversal of all of his convictions and remand of the cause for a new trial; or remand of the cause for resentencing without the use of the victim impact statement. Defendant raises the following issues for our review: (1) whether the State proved that he knowingly entered an occupied dwelling place; (2) whether numerous instances of alleged misconduct in the State’s closing arguments deprived him of his right to a fair trial; and (3) whether the trial properly considered the victim impact statement as a factor in aggravation prior to imposing sentence.

We affirm.

At trial, the evidence established that on April 10, 1987, at approximately 1:30 a.m., defendant, without authority, entered complainant’s residence. Complainant lives in a 100-year-old mansion with his brother.

Complainant testified that on the evening of April 9, 1987, he and his brother went out for dinner. They returned home at approximately 12:30 a.m., April 10. The brothers entered the house through a side door. Complainant went up to his bedroom, located on the second floor toward the front of the house. His brother’s bedroom is on the third floor toward the rear of the house. Complainant fell asleep at approximately 1 a.m.

At approximately 1:30 a.m., complainant was awakened by a severe pain in the area of his head. When he got up from his bed, he noticed defendant standing on the other side of the room. Defendant then approached complainant and identified himself as a police officer. Complainant noticed that defendant carried a shiny object in his hand. Defendant then struck complainant with the object. It was later determined that the object defendant held was a pair of pliers.

After being struck, complainant fell to the floor. Defendant then proceeded to place his hands around complainant’s neck and told him that he was going to kill him. Complainant, after struggling with defendant, was able to push defendant off him. Defendant ran out of the bedroom and complainant went up to the third floor to check on his brother’s condition. Complainant’s brother was asleep and had not been harmed. Complainant got his brother’s .25 caliber automatic pistol. Both he and his brother then went downstairs to call the police. The telephone that complainant intended to use was located in the kitchen on the first floor. Complainant’s brother did not have a telephone in his bedroom.

Upon entering the kitchen, complainant noticed that the pantry door was partially closed. This door is normally kept open. When complainant opened the door, defendant lunged at him with what appeared to be a knife. Defendant then threatened to kill complainant. At that time complainant shot defendant three times. The object in defendant’s hand was a screwdriver.

When the police arrived, a rear window in the house was found open; a baseball cap was discovered on the ledge of the window; and a bicycle that did not belong to complainant was found beneath the open window.

As a result of his encounter with defendant, complainant sustained a broken nose, a broken cheekbone, and bruises and lacerations to his face. Complainant’s left eye remained completely closed for three weeks.

Defendant’s version of the events is vastly different from complainant’s testimony. According to defendant, he left his mother’s house on his 10-speed bicycle at about 11:20 p.m. on April 9, 1987. He testified that he was on his way to “hang out” with some friends on the near north side of Chicago. While in the vicinity of Clark Street and Diversey Avenue, he stopped for a rest. At that time, he noticed complainant staring at him. Complainant then allegedly approached defendant and invited him over to his house. Defendant believed that complainant wanted to have a sexual encounter.

Defendant testified that when they arrived at the house, complainant told him to leave his bicycle by the side of the house so as not to disturb his brother, who was also residing in the house. Complainant then allegedly took defendant to his bedroom and began to rub defendant’s chest. When defendant asked for money, complainant supposedly became enraged and a fight between the two ensued.

At some point in his struggle with complainant, defendant stated that he was able to break away from complainant. He did, however, see complainant run upstairs to the third floor of the house. Defendant ran downstairs to the first floor and hid in the pantry. Subsequently, complainant found defendant in the pantry and shot him once in the chest. The police were then called. Defendant further testified that complainant stated, “[T]he son of a bitch will be dead by the time [the police] get here” and proceeded to shoot defendant two more times.

Assistant State’s Attorney Lori Levin testified that she interviewed defendant while he was in the hospital. She was accompanied by two detectives from the Chicago police department. Defendant told her that his name was “Danny Davis” and that he parked his bicycle under a window outside of complainant’s house. Defendant stated that he opened a window and entered complainant’s house to see what was inside. He also admitted that his baseball cap fell from his head as he was climbing through the window. Defendant took a pair of pliers with him into the house. He also admitted to having struggled with complainant. Defendant never told the assistant State’s Attorney that the complainant picked him up to engage in some sort of homosexual act.

The State also introduced evidence of defendant’s prior burglary conviction and four prior theft convictions. In rebuttal, complainant denied defendant’s version of the incident.

After hearing all of the evidence, defendant was found guilty and sentenced to 12 years’ imprisonment. It is from this decision that defendant appeals.

At the outset, we acknowledge that there are two vastly dissimilar versions of the events which transpired between complainant and defendant. The jury found defendant guilty and, therefore, evidently believed plaintiff’s version of the incident. This court will not substitute its judgment for that of the trial court where evidence is conflicting. People v. Woods (1980), 81 Ill. 2d 537, 542.

Defendant first contends that his convictions for home invasion and residential burglary must be reversed because the State failed to prove that he knowingly entered a dwelling place of another. Defendant claims that he reasonably believed that complainant’s home was a church or a museum in which there were no inhabitants.

Section 19 — 3 of the Criminal Code of 1961 (111. Rev. Stat. 1985, ch. 38, par. 19 — 3) (hereinafter Code) defines “residential burglary” as knowingly and without authority entering into the dwelling place of another with the intent to commit a felony or theft therein. Section 12 — 11 of the Code (111. Rev. Stat. 1985, ch. 38, par. 12 — 11) requires that the State prove defendant knew or had reason to know that one or more persons were present when he entered the premises. Knowledge is ordinarily proved by circumstantial evidence, rather than by direct proof. (People v. Tackett (1986), 150 Ill. App. 3d 406, 420.) “However, the State must present sufficient evidence from which an inference of knowledge can be made, as the inference must be based on established facts and not pyramided on an intervening inference.” People v. Austin (1984), 123 Ill. App. 3d 788, 793.

In the instant case, we find there was sufficient circumstantial evidence that defendant knew or had reason to know the residence in question was an inhabited dwelling place. The house was located in a residential neighborhood. There were no signs or any indication that the structure was a museum or a church. We, however, note that at the front of the house there is a plaque indicating the mansion is of architectural and landmark significance. Whether a structure is a dwelling place of another depends upon the purpose for which it is used, not the nature of the structure. (People v. Bales (1985), 108 Ill. 2d 182, 190.) The structure was intended as a dwelling as complainant had lived in the house for 10 years.

Defendant entered the house through a kitchen window at approximately 1:30 a.m., a time when its inhabitants would be at home. (People v. Austin (1984), 123 Ill. App. 3d 788, 794.) The kitchen is located on the first floor of the house. The dining room is also located on the first floor. These rooms are more indicative of what would be found in a residence rather than in a church or museum.

Complainant also testified that he had the television on when he fell asleep. It is conceivable that light and sound would emanate from the television. Lights were left on in the front of the house and over the side entrance door which would also indicate that the dwelling was inhabited. Defendant entered the house through a window. As the State argues, this surreptitious conduct would also indicate that defendant was concerned about being detected by someone inside of the house and took these measures to avoid capture.

We also note that at trial defendant denied having broken into complainant’s house. On appeal, and according to a statement given by defendant to the assistant State’s Attorney, defendant argues that he entered the house, believing it was a museum or a church. These conflicting defense theories, in effect, make his entire version of the events incredible. Under the circumstances of this case, we will not disturb the findings of guilt on both the residential burglary and the home invasion charges.

Next, defendant contends that numerous instances of prosecutorial misconduct in the State’s closing arguments deprived him of his right to a fair trial. Defendant isolates each incident of alleged misconduct for our consideration and also asks this court to assess their cumulative effect.

Where numerous instances of misconduct are alleged, a reviewing court may consider their cumulative effect rather than assess the prejudicial effect of each isolated comment. (People v. Whitlow (1982), 89 Ill. 2d 322, 341.) Attorneys are allowed great latitude in closing arguments. (People v. Franklin (1976), 42 Ill. App. 3d 408, 421.) Reversible error, however, may be found where improper argument substantially prejudices the accused. People v. Cregar (1988), 172 Ill. App. 3d 807, 825-26.

Reviewing courts are reluctant to set aside a verdict based upon closing remarks unless such remarks are clearly prejudicial. (Franklin, 42 Ill. App. 3d at 423.) After carefully reviewing the State’s closing argument, we no not find that the comments cited by defendant substantially prejudiced him so as to warrant reversal. We also note that the State’s comments were based upon evidence presented at trial or reasonable inferences therefrom. See People v. Bryant (1983), 94 Ill. 2d 514.

Furthermore, as the State maintains, defense counsel’s failure to object to these alleged instances of misconduct arguably waived review of this issue. People v. Cregar (1988), 172 Ill. App. 3d 807, 825.

Finally, defendant argues that his 12-year sentence was excessive because the trial court considered an improper aggravating factor when it admitted the victim impact statement. However, this argument is without merit as victim impact statements may be considered in noncapital offense cases such as this. See People v. Felella (1989), 131 Ill. 2d 525; People v. Turner (1989), 128 Ill. 2d 540.

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

Affirmed.

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


author: JUSTICE MURRAY

text:
    J. & A. POCIASK CARTAGE, INC., Plaintiff-Appellant, v. JIM EDGAR, Secretary of State, Defendant-Appellee.
    First District (5th Division)
    No. 1—89—3457
    Opinion filed November 2, 1990.
    Rehearing denied November 29, 1990.

      Kurt E. Vragel, Jr., of Kurt E. Vragel, Jr., P.C., of Glenview, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, of Chicago, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Petitioner, J. & A. Pociask Cartage, Inc. (Pociask), filed a complaint for administrative review of a decision by the defendant Jim Edgar, Secretary of State, State of Illinois (Secretary), assessing additional registration fees totaling $5,809.37 on trucks owned by Pociask for the year 1987. The circuit court dismissed the action for lack of jurisdiction. Pociask appeals the decision of the trial court.

The facts are as follows.

On July 1, 1986, Pociask applied for registration of its trucks with the Secretary. It did so under the International Registration Plan (IRP). (92 111. Adm. Code §1010 App. B et seq. (1985).) The IRP is a reciprocity program among certain States and Canada. Under the IRP, an applicant registers to operate in several States by filing an application with a single State. That State, in turn, calculates the license fees owed to each other State by the applicant, issues license tags and registrations to the applicant, and disburses the proportional share of the applicant’s fees to those other States. Fees are computed according to a formula based on the miles traveled in each State and on the State’s rate formula. The applicant is then registered to operate in the several States in which it has chosen to operate. The IRP was drafted and adopted to resolve administrative and regulatory problems in the registering of trucks engaged in interstate and foreign commerce. Although the registration fee is based on the mileage actually traveled in each jurisdiction, the fee is due prior to the start of the registration year. Therefore, the applicant’s initial registration must estimate mileage based on anticipated business. For registration years after the first year, the fee is based on the actual mileage of the preceding year.

The July 1, 1986, registration, Pociask’s first, was effective for the remainder of the 1986 calendar year. In accordance with the plan, Pociask estimated on its initial application the number of miles to be traveled during the remainder of 1986. The procedural guidelines to the IRP specifically state that registrants who file apportioned registration applications based on estimated mileage may not be audited as to accuracy of mileage for the first registration year.

In December 1986, Pociask filed its second-year registration with the Secretary. Pociask used estimates of mileage to be traveled during the year 1987 on its second-year application.

In June of 1988, the Secretary audited Pociask for the year 1987. The Secretary used the actual miles traveled by Pociask between July 1986 and June 1987. Based on the audit, the Secretary assessed a deficiency in the amount of $5,809.37. The assessment amount was based on discrepancies between the miles estimated for the year 1986 by Pociask in his initial application and the actual miles traveled during that time.

Pociask objected to the audit. The hearing officer sustained the audit finding additional fees, interest and audit expenses totalling $5,809.37. The Secretary adopted the findings and recommendations of the hearing officer.

On June 7, 1989, Pociask filed his complaint for administrative review in the circuit court, of Cook County. The Secretary filed a motion to dismiss based on jurisdictional grounds. The trial court granted the motion to dismiss, concluding that it lacked jurisdiction. In addition, the trial court stated in its final order that “even if this court had jurisdiction it would support the findings of the hearing officer and would not modify the Secretary’s order against petitioner.”

Pociask has filed a timely appeal from the trial court’s order.

On appeal the Secretary does not contest the jurisdictional points. The Secretary points out that the final decision is subject to administrative review pursuant to sections 2 — 118(e) and 2 — 1240 of the Illinois Vehicle Code (111. Rev. Stat. 1989, ch. 95V2, pars. 2 — 118(e), 2 — 1240).

The only other point raised on appeal is whether the Secretary properly followed Illinois law in his final order. Pociask argues that the Secretary did not and the Secretary urges that he did. We conclude that the Secretary did follow the law, and therefore, we affirm the trial court’s decision on substantive rather than jurisdictional grounds.

Pociask argues that it was entitled to base its second-year application for registration under the IRP on estimates and that the Secretary was not entitled to audit Pociask’s second-year estimate. Pociask’s argument is based on the IRP. The Secretary argues that the audit was proper based on the Illinois Vehicle Code. 111. Rev. Stat. 1985, ch. 951/2, par. 3 — 402.

Although Pociask makes a forceful argument to the contrary, we must conclude that the Attorney General is correct that Illinois statutory and case law authorize the audit conducted by the Secretary.

The IRP has the force and effect of law since it is a compact with other States and Canada. However, the guidelines of the IRP relied on by Pociask only apply to an initial application, not a second-year application. Article IV, section A(6), of the American Association of Motor Vehicle Administrators, Vehicle Reciprocity Sub-Committee on Audit, Uniform Operational Audit Procedure Guidelines provides:

“For new operations, registrants who file apportioned registration applications based on estimated mileage may not be audited as to accuracy of mileage for the first registration year but may be contacted to insure proper record maintenance. However, that same registrant will be subject to audit on actual miles traveled during the preceding year (as defined in the IRP) prior to the second registration year, regardless of the number of months operated. Such audit shall apply only to the second application for apportioned registration that reflects the above information and shall not apply to any previous estimated application. If the new operation is the result of combining or eliminating fleets, those combined or eliminated fleets shall be subject to audit under normal audit criteria. If the registrant chooses to apportion for a second or subsequent registration year based on estimated miles in a member jurisdiction, the base jurisdiction may adjust the 100% apportionment distribution formula to exclude the estimated miles pursuant to IRP Article VIII.”

Article VIII of the IRP provides:

“Initial Application for proportional registration shall state the mileage data in all jurisdictions for the preceding year with respect to such vehicle or vehicles. If no operations were conducted with such vehicle or vehicles during the preceding year, the application shall contain a full statement of the proposed method of operation and estimates of the annual mileage in each jurisdiction. The registrant shall determine the in-jurisdiction and total mileage to be used in computing the proportional registration fee for the vehicle or vehicles. The base jurisdiction Commissioner may adjust the estimate in the application if the base jurisdiction Commissioner is not satisfied with its correctness.” (92 111. Adm. Code §1010 App. B, art. VIII(A) (1985).)

“Preceding year,” for IRP purposes, is defined as “the period of twelve consecutive months immediately prior to July 1 of the year immediately preceding the commencement of the registration or license year for which apportioned registration is sought.” 92 111. Adm. Code §1010 App. B, art. II(J) (1985).

Pocaisk’s December 1986 application was for 1987; therefore, the preceding year was the period of July 1, 1985, through June 30, 1986. Since Poeiask filed its first application in July of 1986, there were no miles in the preceding year for the 1987 application. Thus, Poeiask claims that since there were no miles reported for the preceding year, upon which everything is based for 1987, it properly estimated mileage for the second time on its December 1986 application.

The Secretary’s argument does not dispute that the IRP bases its applications on the preceding year’s information. Rather, the dispute centers around a second-year estimate where, because of the time of application for the first year, there was still no mileage in the “preceding year” for the second application. It is the Secretary’s position that section 3 — 402.1 of the Illinois Vehicle Code covers the situation. (111. Rev. Stat. 1987, ch. 95V2, par. 3 — 402.1.) The language found in section 3 — 402.1 indicates that if mileage data are not available for the preceding year, the Secretary may accept the latest 12-month period available. The Secretary goes on to argue that IRP registrants may use estimates for second-year applications but that records may be audited to determine the actual miles run prior to the second-year application to determine the appropriate fees. In response to Poeiask’s argument, the Secretary replies it was permissible for Poeiask to use estimates in filing its second-year application, but that it did so under risk of audit and that the audit was properly based upon miles run between July 1, 1986. and June 30. 1987.

By its express terms the Pociask estimate is binding on the State for its initial application. (Ecko, Inc. v. Edgar (1985), 135 Ill. App. 3d 557, 482 N.E.2d 130.) It is not binding on the second application. In Echo the court limited the IRP’s application to the first application and not the second. The court stated: “The fee for the second year, however, is based upon the actual mileage of the first year. A registration year ends on August 31. To insure that the proper fees are paid for the second year, the second sentence of the guideline allows audits of the first year’s actual mileage.” (Ecko, 135 Ill. App. 3d at 561, 482 N.E.2d at 133.) Furthermore the court stated: “We, therefore, construe the guideline to allow audits of first year mileage to determine the proper amount of second year fees but not to reassess first year fees.” Ecko, 135 Ill. App. 3d at 562, 130 N.E.2d at 133.

In this case the July 1986 application by Pociask for registration of its trucks was effective for the calendar year 1986. Pociask properly estimated the mileage, and its estimate was not subject to audit by the Secretary by reason of the cited language of the statute and the case of Ecko v. Edgar. Its.second application in December of 1986 became effective for the calendar year 1987. The second application was also based on estimated mileage. Yet, for the second year, Pociask’s actual mileage for the period July 1986 through June 1987 was available to the Secretary. At the time of the initial application, July 1, 1986, no actual mileage was available and any audit of Pociask’s actual mileage would be precluded by the plan and a waste of taxpayers’ money. Alternatively, the failure of the Secretary to audit the mileage for the year 1987 when the records were available would be contrary to the State statutes which authorize the Secretary to conduct audits of owners of trucks registered in Illinois (111. Rev. Stat. 1987, ch. 951k, pars. 3 — 402.2, 2 — 124(a), (e)) and the case of Ecko v Edgar.

Pociask argues that the Echo decision is dicta on the point. It may be dicta, but the dicta is supported by the State statute and was properly followed by the hearing officer, Secretary and trial judge.

Had the guidelines of the plan precluded the second audit, they may well have been an illegal encroachment on the powers and duties conferred on the Secretary under the Illinois Vehicle Code.

For the above reasons, we affirm the trial court’s dismissal of Pociask’s administrative review action.

Judgment affirmed.

COCCIA, P.J., and GORDON, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. BERNARD A. GRESIK, Respondent-Appellant.
    First District (4th Division)
    No. 1—88—2195
    Opinion filed November 8, 1990.
    Gary W. Adair, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and Michael Latz, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Bernard A. Gresik, appeals the trial court’s denial of his motion seeking to have his petition to rescind a statutory suspension of his driving privileges sustained. Defendant contends that he was denied due process when the State failed to grant him a hearing on the petition to rescind the statutory summary suspension of his driving privileges within 30 days of his written demand.

On May 19, 1988, defendant was arrested and charged with driving under the influence of alcohol. According to the arresting officer’s report, defendant either refused to submit to or failed to complete the breathalyzer test and his driving privileges were summarily suspended pursuant to the Illinois Vehicle Code (111. Rev. Stat. 1987, ch. 95x/2, par. 2 — 118.1(b)). The arresting officer issued a citation to defendant which noted that defendant was to appear in court on June 28, 1988, six days before the summary suspension was to begin. Defendant was also notified that a statutory summary suspension of his driver’s license was to become effective on July 4, 1988, 46 days after defendant’s arrest. On May 23, 1988, defendant filed a written petition to suspend the statutory summary suspension. Defendant’s petition noted that the court would hear arguments on the petition on June 22, 1988. On that date defendant answered ready for a hearing on the petition, but the State requested a continuance until June 28, 1988, i.e., the original hearing date set by the arresting officer. The trial court granted the continuance. On June 23, 1988, defendant filed a motion seeking to rescind the statutory suspension based on the State’s failure to proceed with a hearing within 30 days from the filing of the petition. On June 28, 1988, after a hearing, the trial court denied defendant’s motion. Rather than proceed on the petition to suspend the statutory summary suspension, defendant requested a continuance in order to appeal the trial court’s denial of the motion.

Section 2 — 118.1(b) of the Illinois Vehicle Code states:

“Upon the notice of statutory summary suspension served under Section 11 — 501.1, the person may make a written request for a judicial hearing in the circuit court of venue. The request to the circuit court shall state the grounds upon which the person seeks to have the statutory summary suspension rescinded. Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11 — 501 ***, the hearing shall be conducted by the circuit court having jurisdiction.” (Emphasis added.) 111. Rev. Stat. 1987, ch. 95x/2, par. 2— 118.1(b).

The Vehicle Code expressly states that when an individual requests a hearing to have a statutory summary suspension rescinded, a hearing shall be conducted by the circuit court within 30 days after receipt of the request or the appearance date stated on the traffic citation.

In support of his argument, defendant relies on In re Summary Suspension of Driver’s License of Trainor (1987), 156 Ill. App. 3d 918. In Trainor, defendant requested a hearing to rescind the statutory summary suspension of his driving privileges. The hearing date was timely set, but petitioner moved for substitution of judges. A new judge was appointed, but failed to hear petitioner within 30 days of petitioner advising the court that he had filed a petition and would like a prompt hearing. On review, the court found that when petitioner requests a hearing to rescind the statutory summary suspension, the hearing must be held within the time periods set by the statute; otherwise, defendant is entitled to rescission of summary suspension of his driver’s license. Trainor, 156 Ill. App. 3d at 923.

The People argue that defendant’s hearing to rescind the statutory summary suspension of his driving privileges was scheduled to be held within the time periods set forth in the Vehicle Code (111. Rev. Stat. 1987, ch. 95V2, par. 2 — 118.1(b)) so that there was no violation of defendant’s due process rights and, therefore, the suspension of defendant’s driving privileges should be affirmed. We agree.

In support of its argument, the State cites People v. Webb (1989), 182 Ill. App. 3d 908, and People v. Gerke (1988), 123 Ill. 2d 85. In Webb, defendant was arrested on January 1, 1988, for driving under the influence of alcohol. The traffic citation, issued by the arresting police officer at the time of defendant’s arrest, notified defendant to appear in court on February 5, 1988, to answer the charges contained in the citation. Defendant also received notice that his driver’s license would be suspended beginning on February 16, 1988. On January 4, 1988, defendant filed a petition to rescind the statutory summary suspension of his driving privileges. The trial court conducted the hearing on defendant’s petition on February 5, 1988, the appearance date contained in the citation. Defendant moved to dismiss the statutory suspension of his driving privileges, arguing that the hearing on his petition was not timely. The trial court granted defendant’s motion, but the Illinois Appellate Court reversed and remanded the case and stated as follows:

“[W]e conclude that defendant was not deprived of his due process right to a timely hearing when the hearing he requested would have taken place on the first appearance date specified on the traffic ticket. Although this date fell 31 days after his written request for a hearing, it conformed with the alternate time provision set forth in the statute, and since it was scheduled to take place 11 days before the effective date of the statutory summary suspension of his driving privileges, we conclude that due process was not violated.” Webb, 182 Ill. App. 3d at 913-14.

In Gerke, our supreme court stated that “[a] hearing on the suspension,' when requested, is to be conducted ‘[wjithin 30 days after receipt of the written request or the first appearance date of the Uniform Traffic Ticket.’ [Citation.] The first appearance date on the Uniform Traffic Ticket must be not less than 14 days but within 49 days after the date of arrest, whenever practicable. [Citation.] *** [T]he summary suspension hearing will be held not later than three days after the suspension is to become effective. *** [A] three-day delay is not nearly long enough to implicate the due process clause.” Gerke, 123 Ill. 2d at 91-92.

In the present case, the hearing on defendant’s petition to rescind the statutory summary suspension was heard on June 28, 1988. Defendant’s petition was denied and his summary suspension began six days later on July 4, 1988. We believe that the June 28, hearing satisfied the requirements of the Vehicle Code (111. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1(b)) as well as due process requirements.

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

Affirmed.

McMORROW, P.J., and JIGANTI, J., concur.


author: PRESIDING JUSTICE COCCIA

text:
      In re MARRIAGE OF RALPH BURCH, Petitioner-Appellant, and ARLENE BURCH, Respondent-Appellee.
    First District (5th Division)
    No. 1—88—1254
    Opinion filed November 9, 1990.

      Barbara J. Agnew, of Northbrook, for appellant.
    Richard R. Della Croce, of Blue Island, for appellee.
   PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

This is an appeal from the trial court’s denial of petitioner’s motion to set aside an orally agreed-to property settlement which was incorporated into the judgment of dissolution of marriage between the parties in this cause.

For the reasons expressed herein, we reverse the order of the trial court denying, without evidentiary hearing, the husband’s petition to vacate the oral prove up prior to entry of the judgment, and vacate that portion of the judgment of dissolution of marriage which pertains to the incorporated property settlement. We affirm the trial court’s order decreeing the dissolution of the marriage between the parties. We remand for further proceedings consistent with this opinion.

On June 22, 1984, Ralph Burch (petitioner) filed for dissolution of his 29-year marriage to Arlene Burch (respondent). A prove up on the petition was heard by the trial court on October 13, 1987, at which time the trial court found that grounds existed for the dissolution of the marriage. The trial court further found, at these proceedings, that an oral agreement had been reached regarding the distribution of the property of the parties and maintenance and that the agreement was fair and reasonable. This finding was predicated, at least in part, upon the petitioner’s statement during the oral prove up that he agreed to the settlement, that he was not coerced to do so, and that he understood all of its terms and provisions. The trial court accordingly held that it would accept the oral agreement and incorporate it into the judgment of dissolution of marriage. The petitioner was instructed to prepare and file the transcript of the prove up proceedings, along with a postponed judgment order, at which time the court would sign the order and make it final. Both counsel were instructed to sign off on the agreement and to review the transcript to make certain that it reflected what was said at the hearing.

Shortly following the prove up, petitioner’s suspicions increased that sometime during the marriage, respondent had fraudulently concealed a marital asset by purchasing an interest in a certain piece of improved realty, other than the marital domicile, and ultimately disposing of her interest in the property during the proceedings in the trial court, all without knowledge of or notice to petitioner, or to the court. Petitioner was also dissatisfied with certain provisions of the oral property agreement. He states that he was advised, following the prove up, by his then attorney that the oral agreement covering the property settlement would have to be written up, thus enabling the petitioner to make changes before it was finally accepted by the court. Petitioner, in his own mind, was of the opinion that since the oral agreement was to be written up and the order approving it ultimately was to be signed by the judge, the changes could be made prior to finalization. Within one month of the prove up, petitioner discharged his attorney and retained new counsel, attorney llene Wolf, who attempted to investigate petitioner’s fears that respondent had concealed marital property from him and from the court.

On February 25, 1988, respondent filed an emergency motion requesting the court to enter judgment, incorporating the property settlement, instanter, and further requesting attorney fees for the time and costs expended by respondent’s attorney in preparing the judgment order, preparing a transcript of the oral prove up, and preparing and presenting the emergency motion. Petitioner responded to the emergency motion and subsequently filed his own motion and petition seeking to vacate the oral prove up on grounds that the property agreement was unconscionable and requesting that a date be set for trial. In his petition to vacate, Mr. Burch listed several reasons why he believed that the property settlement was unconscionable. These related primarily to the distribution of the marital assets, including pension funds, and did not include any allegation of, or reference to, the fraudulent transfer of an undisclosed marital asset. Both motions were set for hearing before the trial court on March 23, 1988.

On March 23, 1988, during argument on these motions, petitioner’s counsel, in support of his motion-to vacate, advised the court that she had newly discovered information, apparently uncovered sometime after the filing of the petition to vacate the oral prove up, to the effect that the respondent had used $23,000 of marital funds, during the marriage, to purchase an ownership in real estate, other than the marital residence. Attorney Wolf further advised the court that the new information would establish that, on the date following respondent’s initial appearance in these proceedings, respondent at the direction or through the assistance of her divorce attorney deeded away through a deed in trust, and a trust agreement, her interest in this alleged marital property to her son and daughter-in-law without disclosing this fact to the petitioner or the court.

It is petitioner’s position that, given the initial discovery evidence obtained from respondent which reveals that she failed to disclose this transaction, coupled with her statement during. cross-examination at the time of the prove up that she had made full disclosure of her assets, which did not reflect this transaction, the property settlement agreement entered into at the time of the prove up must be vacated and set aside as unconscionable. In support of her argument, attorney Wolf provided the trial judge with copies of the deed in trust and the trust agreement, and asked the court to allow further discovery on the issues raised by the newly discovered information relating to fraud and unconscionability. The trial court in denying petitioner’s motion did so without conducting an evidentiary hearing on petitioner’s newly discovered information. The trial court did nonetheless allow argument from respondent’s counsel, without having taken any evidence in support thereof, to the effect that the funds initially used to purchase this property were nonmarital in nature. Stating that she had again reviewed the property agreement and had found that it was not unconscionable and that the parties had had three years prior to the oral prove up in which to conduct discovery, the trial judge granted respondent’s motion for entry of judgment, incorporating the property settlement, and granted the requested attorney fees. Petitioner brought this appeal.

Opinion

At the outset, we call attention to the pertinent provisions of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act), relating to property, support and attorney fees (111. Rev. Stat. 1987, ch. 40, pars. 502, 503), together with corresponding portions of the Smith-Hurd Historical and Practice Notes (1980). The statute provides in relevant part:

“§502. Agreement, (a) To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into a written or oral agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them and support *** of their children.
(b) The terms of the agreement *** are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.” (Emphasis added.) (111. Rev. Stat. 1987, ch. 40, pars. 502(a), (b).)
“§503. Disposition of Property. ***
* * *
(b) For purposes of distribution of property pursuant to this Section, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage *** is presumed to be marital property ***. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section.” (Emphasis added.) (111. Rev. Stat. 1987, ch. 40, par. 503(b).)

The Smith-Hurd Historical and Practice Notes (1980), in dealing with section 502(b), state as follows:

“Subsection (b) *** provides that the terms of the separation agreement, except as they pertain to children, are binding on the court unless the agreement is found to be unconscionable. * * *

Under prior Illinois law there was a different standard for court approval. Settlement agreements were approved by the court if found to be fair and reasonable. ***

This section does not eliminate many of the traditional grounds for setting aside settlement agreements, including grounds of fraud, coercion, and violation of any rule of law, public policy or morals. ***

* * *

The standard of unconscionability introduced by this section [502] *** is new to the area of Illinois matrimonial law ***. [Citation.] The standard as it relates to separation agreements includes ‘protection against overreaching, concealment of assets, and sharp dealing not consistent with the obligations of marital partners to deal fairly with each other.’ Uniform Marriage and Divorce Act (9A U.L.A.) §306, Commissioners’ Note at 137. The Commissioners’ Note further provides:

In order to determine whether the agreement is unconscionable, the court may look to the economic circumstances of the parties resulting from the agreement, and any other relevant evidence such as the conditions under which the agreement was made, including the knowledge of the other party. If the court finds the agreement not unconscionable, its terms respecting property division *** may not be altered by the court. ...

[Citation.]” (Emphasis added.) 111. Ann. Stat., ch. 40, par. 502(b), Historical and Practice Notes, at 400 (Smith-Hurd 1980).

Respondent initially contends that petitioner has failed to introduce any competent evidence of fraud, by way of affidavit or petition, in support of his allegation of fraud, and accordingly the trial court’s order entering judgment should be affirmed. In support of this theory respondent argues that it is an established rule of law that the burden of proving fraud is on the party asserting it, and that such evidence of fraud must be established by clear and convincing evidence and cannot be established upon mere suspicion. (Turzynski v. Libert (1970), 122 Ill. App. 2d 352, 359, 259 N.E.2d 295, 299.) Respondent bolsters her argument by citing the rule laid down in Garmisa v. Garmisa (1972), 4 Ill. App. 3d 411, 426, 280 N.E.2d 444, 454, which she claims holds that the burden is even more onerous when a party seeks to vacate a property settlement incorporated in a divorce decree, for. all presumptions must be held to be in favor of the validity of that settlement. Respondent further suggests that the holding of Guyton v. Guyton (1959), 17 Ill. 2d 439, 161 N.E.2d 832, also supports her position. In Guyton a judgment of dissolution of the marriage, with the property settlement annexed, was entered. A motion to vacate that decree was filed, supported by affidavits challenging the fairness of the oral property settlement, under the prior “fair and reasonable” standard. The court held that a property settlement agreement could be set aside and vacated where it resulted from fraud or coercion by either party. The Guyton court went on to hold that inequity and unfairness in the terms of the settlement, at least where its execution had been accompanied by coercion or misrepresentation, were enough to justify setting a decree aside. However, the court further stated that before such questions could be considered, there must be evidence in the record of the manner in which negotiations were conducted, the needs and station of life of the parties, or other circumstances affording a basis for setting the decree aside on such grounds. Guyton, 17 Ill. 2d at 445, 161 N.E.2d at 835.

We agree with the general principles set down in these cases, but believe that respondent’s reliance thereon is misplaced. In the instant case, petitioner’s motion and argument in support thereof were made prior to the entry of a decree granting dissolution of the marriage and incorporating the property settlement. All questions of proper procedural niceties aside, the trial court was in fact adequately advised by petitioner’s counsel of the results of her investigation into the suspicions of the husband which, if true, would establish the unconscionability of the distribution of property as a result of a fraudulent conveyance of a real estate interest purchased by the wife with marital funds. Documentary information in support thereof was submitted to the trial court for its perusal, which in and of itself was sufficient to require the court to hold an evidentiary hearing to establish the truth of the allegation. Further, respondent’s counsel’s response to the newly discovered and relevant information was that the property in question was purchased with nonmarital funds. This was equally a voluntary conclusion on the part of counsel, with no evidence to support the same having been taken by the court. Given this state of the record, and the fact that a rebuttable presumption exists that all property acquired after marriage is marital property (111. Rev. Stat. 1987, ch. 40, par. 503(b); Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 216, 446 N.E.2d 499, 502), so that proof would be necessary to establish that the assets used to purchase the property were nonmarital in nature, the trial court was required to hold an evidentiary hearing on all of these issues. Having failed to do so was an abuse of the trial court’s discretion.

•7 In so holding, we are in agreement with this court’s decision in Crawford v. Crawford (1976), 39 Ill. App. 3d 457, 350 N.E.2d 103, which sets forth the guidelines that are basic to our resolution of the issues in the instant case:

“While it is well settled in Illinois that the law looks with favor upon the amicable settlement of property rights between a husband and wife prior to their divorce [citations], it has also been held that a settlement agreement will be set aside and vacated if said agreement is procured by fraud, coercion, or if contrary to any rule of law, public policy, or morals. [Citations.] * * *
* * *
* * * It is our opinion that the settlement of property and alimony rights between married persons, particularly in situations involving long matrimonial relationships, cannot be concluded by the parties’ oral consent when it is diligently challenged by one spouse before a decree has been entered.” (Emphasis added.) Crawford, 39 Ill. App. 3d at 461-62, 350 N.E.2d at 107-08.

Respondent, however, relies on Lagen v. Lagen (1973), 14 Ill. App. 3d 74, 302 N.E.2d 201, in support of her argument that there was no showing of concealment with the intent to deceive on her part, with respect to the details of the alleged fraudulent disposition of the improved property. We acknowledge the basic principle that, although fraud may consist in the concealment of what is true as in the assertion of what is false, the concealment “must be shown to have been done with the intention to deceive under circumstances creating an opportunity and duty to speak.” (Lagen, 14 Ill. App. 3d at 79, 302 N.E.2d at 205.) However, we believe that respondent’s reliance on Lagen is equally misguided. Respondent states that there was no duty upon her to speak or volunteer any information that was not asked of her during discovery or other court proceedings. We hold that there was an affirmative duty to disclose.

In Garmisa v. Garmisa (1972), 4 Ill. App. 3d 411, 280 N.E.2d 444, a case which lends support to petitioner’s argument, the wife had filed a post-judgment petition to vacate a divorce decree incorporating a property settlement. Her petition alleged that the settlement had been procured by fraud, in that the husband had misrepresented the value of his business assets at the time of the settlement. The trial court, after hearing extensive testimony concerning the husband’s negotiations with American Broadcasting Company (ABC) during the course of the divorce proceedings, relating to the sale of his businesses to ABC, and the resulting consummation of the sale approximately six months after the divorce decree, as well as the husband’s acknowledgement that he did not take the potential sale into account in computing his net worth for purposes of the property settlement, had stated:

“The court finds that there was an affirmative duty on the part of the defendant to disclose the said negotiations to the plaintiff so that the plaintiff would have the same facts at her command as the defendant in negotiating a property settlement and that failure to disclose on the part of the defendant deprived the plaintiff of a material fact necessary to intelligently arrive at a property settlement, (even though said disclosure may not have affected the property settlement one way or the other, the plaintiff was entitled to make that decision) and therefore, in this sense, constituted a fraud ***.” (Garmisa, 4 Ill. App. 3d at 421, 280 N.E.2d at 450-51.)

The appellate court, in considering whether the wife had met her burden of proving fraud, first observed:

“[Defendant was under an obligation to disclose the fact that preliminary negotiations had taken place with ABC for the sale of John Roberts and Selected Tape. By the time the decree was entered defendant had met several times with ABC officials in serious negotiations.” (Garmisa, 4 Ill. App. 3d at 423, 280 N.E.2d at 452.)

However, the court went on to state:

“The non-disclosure in the instant case was in essence a misrepresentation as to the value of defendant’s interests in the two partnerships. In order for a misrepresentation to constitute fraud, in addition to other elements not relevant here, the complaining party (plaintiff) must show that it was false and that she relied on it to her injury. [Citation.] Fraud must be proven by clear and convincing evidence. [Citation.]” (Garmisa, 4 Ill. App. 3d at 423, 280 N.E.2d at 452.)

Because it determined, in light of the extensive testimony presented at trial, that the plaintiff-wife had not proved, by clear and convincing evidence, that the nondisclosure of the ABC negotiations resulted in her injury, the appellate court reversed the trial court’s order modifying the original divorce decree and reinstated the original property settlement. (Garmisa, 4 Ill. App. 3d at 426-27, 280 N.E.2d at 454-55.) In the case at bar, the mere fact that the parties are of divergent views concerning the nature of the subject property manifests the need for an evidentiary hearing to clarify the issues and to help the trial court reach a just result as to the conscionability of the property settlement.

Other appellate decisions likewise lend support to this view. For example, in In re Marriage of Lorenzi (1980), 84 Ill. App. 3d 427, 405 N.E.2d 507, a post-judgment petition to vacate a property settlement was denied by the trial court without a hearing. In remanding the case for an evidentiary hearing on the petition, the appellate court observed:

“The trial court states in its opinion that ‘[tjhere was no allegation here that there was duress or fraud perpetrated on Joyce B. Lorenzi.’ In fact, Mrs. Lorenzi’s verified petition does allege fraud. ***
It is apparent from both the petition and answers thereto that the matters at issue were dehors the record and could not be determined by the court’s examination of the records in the case. *** Where, as here, however, the facts are controverted, the proof should be presented at an orderly hearing by examination of witnesses, under oath, subject to cross-examination. [Citations].” (Lorenzi, 84 Ill. App. 3d at 432, 405 N.E.2d at 511.)

In a more recent decision, this court stated:

“A party alleging unconscionability of a settlement agreement must be permitted to present evidence relevant to that agreement (In re Marriage of Lorenzi (1980), 84 Ill. App. 3d 427, 431, 405 N.E.2d 507); however, the admission or exclusion of evidence is within the circuit court’s discretion and will not be disturbed absent an abuse thereof. [Citation.]” (In re Marriage of Smith (1987), 164 Ill. App. 3d 1011, 1020-21, 518 N.E.2d 450, 456.)

However, in the case at bar we feel that there was clearly an abuse of discretion in the trial court’s refusal to consider, in the context of a hearing on a petition to vacate an oral prove up on grounds of unconscionability, the documents presented in support of an alleged fraudulent transfer, as well as in its refusal to allow further discovery relating to this disputed allegation. Moreover, we believe that the information and documents brought forward at the hearing on petitioner’s motion sufficiently alleged circumstances entitling him to an evidentiary hearing on these matters.

Further support for an evidentiary hearing is to be found in Den drinos v. Dendrinos (1978), 58 Ill. App. 3d 639, 374 N.E.2d 1016, where the procedural context more closely paralleled that of the instant case. In Dendrinos, the trial court denied plaintiff’s petition to set aside a property settlement agreement solely on the basis of the attorneys’ arguments, after plaintiff had declined to sign the orally agreed-to settlement and alleged, inter alia, that defendant had falsely answered interrogatories by stating that he held no interest in certain real estate. This court reversed the trial court’s decision, concluding:

“We are far from satisfied that the court and counsel adequately discharged their duties to the litigants and the judicial system established to resolve disputes through orderly and fair proceedings. Consequently, the matter must be remanded to the trial court for a hearing.” Dendrinos, 58 Ill. App. 3d at 642, 374 N.E.2d at 1019.

Finally, we believe that the principles and the rationale set forth in In re Marriage of Reines (1989), 184 Ill. App. 3d 392, 540 N.E.2d 394, an opinion of this division, are determinative of the issues now before us. In Reines, petitioner-wife appealed from an order of the circuit court denying her motion to vacate or modify the judgment of dissolution of marriage from respondent-husband, as that judgment pertained to an incorporated property settlement. The marital settlement agreement had been signed by both parties after an oral prove up. It specifically stated that the husband and wife agreed on the terms of the settlement, “each having made full disclosure to the other of all their assets.” (Emphasis omitted.) (Reines, 184 Ill. App. 3d at 395, 540 N.E.2d at 395.) Following entry of the judgment, and after retaining different counsel, the wife filed a section 2 — 1401 petition (111. Rev. Stat. 1985, ch. 110, par. 2 — 1401). Her petition alleged, inter alia, that the property settlement failed to include or take into consideration various properties owned by the parties and was consequently unfair to her. Her petition stated that through discovery, she had learned that her husband had failed to disclose certain financial assets which he had purchased through payroll deductions. These assets would be retained by him under the terms of the agreement, while no interest or equivalent provisions were given to petitioner. She further claimed that her husband had effectively dictated the terms of the settlement and had employed his own attorney to accomplish this end, although the attorney ostensibly had appeared before the court on the wife’s behalf. Petitioner also moved for a court order to obtain full discovery and disclosure of the assets which the parties owned prior to the dissolution of the marriage, for the purpose of reassessing the proper allocation of marital and nonmarital property, asserting that no determination of the conscionability of the property division could be properly made without respondent’s full disclosure of his assets. The trial court struck the petition to vacate or modify the judgment of dissolution and denied petitioner’s request for discovery, all without an evidentiary hearing.

In reversing the trial court’s rulings, we cited with approval the case of In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 428 N.E.2d 1005, which relied on the authority of section 502 of the Dissolution Act and the unconscionability standard as defined in the Smith-Hurd Historical and Practice Notes (1980). That definition, as we have already noted, includes “protection against overreaching, concealment of assets,” “the obligation of marital partners to deal fairly with each other,” and “conditions under which the agreement was made, including the knowledge of the other party,” among the factors which are incorporated in the standard as it relates to separation agreements. (Emphasis omitted.) Reines, 184 Ill. App. 3d at 399-400, 540 N.E.2d at 398; Carlson, 101 Ill. App. 3d at 930, 428 N.E.2d at 1010; Ill. Ann. Stat., ch. 40, par. 502(b), Historical and Practice Notes, at 401 (Smith-Hurd 1980).

In Reines we also quoted favorably from Zieske v. Zieske (1976), 41 Ill. App. 3d 746, 354 N.E.2d 513, in which the appellate court held that the former husband was entitled to an evidentiary hearing where his post-judgment petition alleged that his former wife had failed to disclose to him certain material facts, including matters which cast doubt on the propriety of the property and custody agreement. In Zieske, the marital settlement agreement, as incorporated in the decree, recited that the parties, “after full disclosure of all pertinent facts, ha[d] *** agreed to settle their respective rights and obligations.” (Zieske, 41 Ill. App. 3d at 747, 354 N.E.2d at 514.) The Zieske court, summarizing the law under the prior “fairness” standard as stated in James v. James (1958), 14 Ill. 2d 295, 305, 152 N.E.2d 582, 587, and emphasizing the several traditional grounds for setting aside a property settlement which remain valid under current law, concluded:.

“The law is well settled that parties to an action for divorce may adjust between themselves the amount required for the future support of a wife by a husband, and that they may, if such a course is desired, voluntarily effect a settlement of their property interests. [Citations.] When such agreements are made a part of the divorce decree, they become merged in such decree and are regarded as contracts between the parties which, if fairly made and in good faith, will be accepted and enforced by the courts. [Citations.] They will, however, be set aside and vacated for fraud or coercion practiced by either party, or if contrary to any rule of law, public policy or morals. [Citations.] *** [Contracts of such nature are, in theory, in furtherance of the duty incumbent upon a husband to support his wife. Thus the interest of the public, as well as that of the parties, is involved, and public policy requires that such contracts be not only free from taint of actual fraud and coercion, but also reasonably fair and sufficient, having regard to the station in life and the circumstances of the parties.” (Emphasis added.) (Zieske, 41 Ill. App. 3d at 748, 354 N.E.2d at 515, quoted in Reines, 184 Ill. App. 3d at 401-02, 540 N.E.2d at 399.)

Accordingly, the Zieske court found that the trial court had erred in not allowing the husband to present testimony and other evidence in support of his section 72 (now section 2 — 1401) petition for post-judgment relief, and held that a “complete evidentiary hearing [wa]s necessary to determine justiciability of [his] position.” Zieske, 41 Ill. App. 3d at 749, 354 N.E.2d at 515.

Drawing upon the authority cited, we concluded in Reines:

“If the trial court *** had been made aware of respondent’s undisclosed pension benefits, the court could have and would have included the pension benefits in the couple’s property settlement agreement. Moreover, petitioner’s section 2 — 1401 petition brought to the attention of the court several other assets, respondent’s credit union account, withdrawals from that account, payroll deductions from his salary as a police officer, bonds and other investments, which respondent failed to disclose prior to entering into the settlement agreement with petitioner. Petitioner was thus deceived into disclaiming any maintenance on the part of her husband.
* * *
* * * The trial court erred in refusing to inquire further into the assets and conduct of respondent to determine whether he had, as alleged by petitioner, concealed the existence of material assets.” (Emphasis added.) Reines, 184 Ill. App. 3d at 402, 540 N.E.2d at 400.

Consequently, we held that the trial court should have permitted petitioner to proceed with discovery in support of her claim that the settlement agreement was procured by fraud and/or duress.

Although the case at bar involves a motion to vacate an oral prove up and a hearing on the motion, rather than a post-judgment petition and hearing, pursuant to section 2 — 1401 of the Code of Civil Procedure, the same legal and public policy principles logically apply. Therefore, we conclude that the trial court abused its discretion in not permitting further discovery and in not affording petitioner an evidentiary hearing where all of the pertinent facts relating to his allegations could have been adequately addressed.

With respect to the dissolution of the marriage, we find that no allegations were made or evidence adduced tending to show that the grounds of dissolution were not proved. Accordingly, we affirm the trial judge’s order of dissolution of the marriage between the parties.

However, for the reasons stated, we reverse the portion of the trial judge’s order approving the property settlement and awarding the requested fees to respondent’s attorney. We remand this cause to the trial court for the purpose of holding a full evidentiary hearing on the issue of the alleged unconscionability of the property settlement, which the record shows was freely and voluntarily entered into before the court by independently represented parties. In so doing, we instruct the trial court to take particular concern with the allegation that respondent may have committed a fraud on the court and against the petitioner in concealing her ownership of a substantial marital asset, and of divesting herself of that asset through conveyance thereof to her son and daughter-in-law during the pendency of the proceedings, all without disclosure to the petitioner or the court. Petitioner should be permitted to amend his motion to vacate so that this allegation, and an offer of supporting evidence, is stated in writing.

Should the trial court find that respondent shielded certain marital assets from the petitioner, and thus prevented petitioner from making an informed decision to enter into the property settlement, or the trial court from making a fair and equitable distribution of the marital property in just proportion, the court should find the orally agreed-to settlement unconscionable, vacate the oral prove up, and conduct further proceedings pursuant to section 502 of the Dissolution Act. (111. Rev. Stat. 1987, ch. 40, par. 502(c).) In this event, the court should also review the entire question of counsel’s role in participating in such conduct and the awarding of the requested attorney fees.

Should, on the other hand, the trial court find that there was no fraudulent conveyance of a marital asset by the respondent, that the role of respondent’s attorney in the transfer of property was totally within the realm of propriety, and that the negotiated property settlement was not unconscionable, the property settlement agreement should be approved by the court and incorporated into the judgment of dissolution of marriage. The award of attorney fees in connection with respondent’s emergency petition for entry of judgment should then be reconsidered and decided in light of such findings.

Affirmed in part; reversed in part and remanded with directions.

LORENZ and MURRAY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD WISE, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—2063
    Opinion filed November 9, 1990.

      Michael J. Pelletier and Linda Signer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of-Chicago (Renee Goldfarb, Walter P. Hehner, and Candace A. Williams, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant Ronald Wise (Wise) was charged with aggravated battery and robbery. (111. Rev. Stat. 1985, ch. 38, pars. 12 — 4(b)(8), 18— 1(a).) He was tried before a jury and, after the State’s evidence, was granted a directed finding on the aggravated battery count. The jury found Wise guilty of robbery, and he was later sentenced to 10 years’ incarceration in the Department of Corrections. He now brings this appeal in which he questions, among other things, the sufficiency of the evidence against him. Because we agree that the evidence leaves a reasonable doubt as to Wise’s guilt for the crime charged, we reverse.

The complaining witness, Reneal Neither (Neither), testified at trial that about midnight on January 4, 1987, he entered the Dunes Submarine Shop located at 39th and Martin Luther King Drive in Chicago. Inside this shop he noticed two men whom he knew and recognized as “Crazy Ron” (defendant) and Edgar Jones (Jones). According to Neither’s testimony, defendant, without provocation or cause, came up to him from behind and grabbed him in a “bear hug.” At the same time, Jones walked up to him, pulled a gold rope chain and medallion from his neck and then struck him in the left eye. Two police officers then arrived on the scene. As the officers entered the shop, defendant and Jones ran out of the store, and the police followed in pursuit.

Officer Bresnahan, who was one of the officers to respond to the scene, testified that he had monitored a police radio dispatch indicating that a fight was going on at 339 East 39th Street. Since he and his partner, Rodriguez, were nearby, they responded and arrived on the scene within a minute of receiving the radio message. As they approached the store, he could see that there was a struggle between “three black males,” whom he later identified as Neither, Wise and Jones. It appeared that Wise was holding Neither from behind, but he saw no blows being exchanged.

As the officers entered the store, Jones ran through the front door. Wise momentarily “got in the way” and then he, too, ran from the location. Officer Bresnahan stated that he heard someone say “there they go” and then he and his partner took off in pursuit. Shortly thereafter, they apprehended both Wise and Jones in a third-floor stairwell landing at the Ida B. Wells apartment complex. They returned to the submarine shop with Wise and Jones but found that the apparent victim (Neither) had left the area. They then transported Wise and Jones to the police station and, since no victim contacted the police, charged them only with disorderly conduct.

Neither testified that after the police left the shop in pursuit of Wise and Jones, he returned home. He did not contact the police to report what happened that night. In fact, it was not until two detectives located him the next day, as a result of their investigation of the incident, that Neither indicated that he had been the victim of a robbery. Neither then identified photographs of Wise and Jones and indicated that Jones had pulled a gold rope chain from his neck during the incident.

During the defense Neither’s trial testimony was impeached by evidence that he made subsequent statements exonerating defendant from any complicity in the robbery. On January 11, 1988, Neither was contacted by Michael Black, an investigator for the public defender’s office. Black testified that he called Neither for an appointment prior to visiting Neither at his home and that Neither agreed to meet him. Black further testified that when he arrived at Neither’s home, he identified himself as an investigator for the defense and showed Neither his identification and badge. He then asked Neither about the January 4, 1987, incident at the submarine shop. According to Black’s testimony, Neither indicated that Jones, not Wise, had taken his gold chain and that Wise had not been involved in the incident. Black asked Neither for a written statement to this effect and Neither agreed to sign a statement that Black then prepared, which read:

“Reneal relates that Ronald Wise had nothing to do with robbing him of his gold rope neck chain, and a gold neck medallion. Reneal further relates that Ronald Wise is innocent and that Edgar Jones is the person who robbed him of his gold chain and medallion, and will come to court and testify to this.”

At the request of Wise’s attorney, Black contacted Neither a second time and asked him if they could meet once more to discuss the robbery. Neither agreed to meet with Black at the public defender’s office in downtown Chicago. There Neither met with Black and defense counsel. After a discussion of the incident Neither agreed to sign another, more detailed statement, which read:

“Reneal says that Ronald Wise did not commit the robbery of taking his gold chain with a gold medallion connected. Reneal says Ronald Wise did not touch him or block his walk path by trying to help Edgar Jones robb [sic] him of his personal items. Edgar Jones is the person who had taken his gold chain with medallion. Reneal says that the chain was taken first and then Reneal and Edgar Jones started fighting together, and Ronald Wise did not help or get involved in the fight between Reneal and Edgar.”

In both instances, Black testified that Neither read and/or had the statement read to him and that Neither initialed and then signed the statement of his own free will after finding it to be an accurate and true account of his statements.

Neither, on the other hand, disavowed these statements. Although Neither admitted that he met with Black and signed the statements, he claimed that he was unaware of Black’s affiliation with the defense. He claimed that Black “flashed an ID” and indicated that he was from “downtown.” Neither claimed that he believed Black to be a police officer. Neither also claimed that Black did not ask about the incident but merely wrote something down and then asked him to sign it. He stated that he only “glanced” at what Black had written and then signed it because he was told that he would not have to come to court. With regard to the second statement, Neither admitted that he agreed to meet Black at the public defender’s office and that he saw the sign on the door when he arrived. However, he claimed that he didn’t know what this meant and, again, merely glanced at the written statement and signed it, upon the assurance that he would then not be required to come to court.

After argument and instructions to the jury, Wise was found

guilty of robbery and it is from this conviction that he appeals.

As stated earlier, defendant raises a question as to the sufficiency of the evidence against him. When faced with such a claim it is the reviewing court’s duty to examine the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime charged had been proven beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.) The Young court further stated:

“The due process clause of the fourteenth amendment (U.S. Const., amend. XIV) protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for which he is charged. (In re Winship (1970), 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1078.) When presented with a challenge to the sufficiency of the evidence, it is this court’s function to carefully examine the evidence, giving due consideration to the fact that the court and jury saw and heard the witnesses. If, after such consideration, this court is of the opinion that the evidence is not sufficient to remove all reasonable doubt of the defendant’s guilt and is not sufficient to create an abiding conviction that he is guilty of the crime charged, then the conviction must be reversed. People v. Bartall (1983), 98 Ill. 2d 294, 306; People v. Jefferson (1962), 24 Ill. 2d 398, 402.” 128 Ill. 2d at 48.

After a careful review of the evidence in this case we are not left with an abiding conviction of defendant’s guilt, and so we feel compelled to reverse defendant’s conviction.

The State repeatedly recites in its argument the proposition that discrepancies in testimony do not destroy credibility and that the testimony of a single witness, if positive and credible, even if contradicted, is sufficient to support a conviction. (People v. Ranola (1987), 153 Ill. App. 3d 92, 505 N.E.2d 1191; People v. Davis (1984), 130 Ill. App. 3d 41, 473 N.E.2d 387.) While these statements are undoubtedly true, they are not applicable to this case since in this case the single accusing witness’ testimony did not merely contain minor discrepancies. Instead, it was severely impeached by evidence of his own inconsistent statements concerning the robbery and defendant’s participation in it, thereby greatly reducing the credibility of Neither’s trial testimony. In light of this fact, and the lack of any corroborative evidence, we find Neither’s trial testimony insufficient.

Additionally, we observe that Wise was found guilty of robbery on an accountability theory. A person is legally accountable for the conduct of another when, either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid such other person in the planning or commission of the offense. (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2; People v. Green (1988), 179 Ill. App. 3d 1, 15, 535 N.E.2d 413.) Consequently, to prove Wise accountable for the robbery perpetrated by Jones, there must have been sufficient evidence that the actions of Wise were made with the intent to aid or abet Jones’ plan to commit the offense of robbery.

Although Neither remained singularly adamant concerning Edgar Jones’ culpability for the robbery, Neither was not as positive about Wise’s involvement. In fact, there was no evidence, except Neither’s questionable trial testimony, that Wise’s act of holding Neither had been with the intent of assisting Jones in accomplishing a robbery. The police were apparently called because a fight was going on between Jones and Neither. The fact that a fight took place between these two men was verified in Neither’s statements to Michael Black and defense counsel. It is unclear at what point Jones took the gold chain and when, and for what reason, Wise became involved in the altercation. Thus, even when viewing the evidence in a light most favorable to the prosecution, the evidence established, at best, that Wise held Neither from behind at some point during an encounter with Jones. Based on this evidence we do not find a sufficient basis for holding Wise accountable for the offense of robbery.

We note that Wise has raised two additional issues on appeal, namely, (1) that he was denied a fair trial based upon the admission of irrelevant and unduly prejudicial evidence, such as his use of an alias, and (2) prosecutorial misconduct or overreaching based upon certain unsubstantiated remarks made at trial which insinuated that Neither had been threatened or intimidated by defendant, defendant’s attorney or the investigator, into making the inconsistent statements and which served to bolster Neither’s credibility. We choose not to reach the merits of these issues. In light of our decision to reverse defendant’s conviction based on the lack of sufficient evidence, any commentary on these additional issues would be merely dicta and of no benefit or purpose.

For the reasons stated above we reverse defendant Wise’s conviction and the- sentence entered thereon.

Reversed.

COCCIA, P.J., and GORDON, J., concur.