source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
      In re ESTATE OF DENA HARMS, Deceased (Duane Harms et al., Petitioners-Appellees and Cross-Appellants, v. Ermyle Walters et al., Respondents-Appellants and Cross-Appellees).
    Fourth District
    No. 4—91—0778
    Opinion filed September 30, 1992.
    Modified on denial of rehearing November 17, 1992.

      W. Loren Thomson, of Bloomington, for appellants.
    James W. Yoder, of Bloomington, for appellees.
   JUSTICE COOK

delivered the opinion of the court:

Petitioners filed a citation proceeding on behalf of their grandmother’s estate seeking a determination of right and title to various savings bonds, bank accounts, and certificates of deposit (CDs) held in the name of decedent and one or both of her two daughters as joint tenants. The order entered in the estate proceeding directed respondents to pay over to the estate more than $128,000, representing income received and deposited into preexisting joint tenancy accounts for the three years preceding decedent’s death. Respondents appeal, alleging (1) the trial court improperly ruled that income generated subsequent to decedent’s stroke, although deposited in joint tenancy accounts, was payable to the estate; and (2) the court improperly relied on an expert witness it appointed to compute sums accruing subsequent to decedent’s stroke. Petitioners cross-appeal, alleging (1) both principal and income from all joint tenancy accounts are properly payable to the estate, as the accounts were established without donative intent and for convenience only; and (2) certain of the accounts failed to comply with the statutory requirements for creating a joint tenancy with a right of survivorship.

Dena A. Harms (decedent) was the widow of Henry Harms, who died in 1960. She had three children, her daughters Ermyle Walters and Lucille Gunther, respondents herein, and a son, Arthur Harms, who died in 1979. Petitioners are the adult children of Arthur Harms. Decedent apparently lived alone until March 20, 1984, when she suffered a stroke. She was taken to the hospital and transferred shortly thereafter to the Lida Nursing Home, where she remained until her death on April 12, 1987, at the age of 93. She left a will and two codicils, several parcels of farmland and numerous CDs, bank accounts, and treasury bonds.

Petitioners’ citation petition sought recovery of the joint tenancy property on the theory that respondent, Ermyle Walters, “acted as an agent for the decedent and conducted and managed her banking and business transactions.”

Evidence was presented showing that after the death of her husband and prior to the death of her son, decedent embarked on a course of creating joint tenancies in her bank accounts and CDs. Initially all three of her then living children were named as joint tenants, but when Arthur died in December 1979 his name was taken off the existing accounts. Additional accounts were created over time from funds contributed wholly by decedent with respondents named as joint tenants.

Following the death of her husband Henry in 1960, decedent took possession of certain United States Treasury E bonds which named only Arthur and Henry Harms as joint tenants. Decedent placed these bonds in her safe deposit box because she did not feel her children should receive any funds until after her death. She also executed a first codicil to her will, which expressed an intent to equalize the disparity between distributions received (or to be received) by each of her children from Henry’s estate. After Arthur’s death in 1979, decedent’s attorney explained to her that since both her husband and son were deceased, the bonds were the property of Arthur’s estate and had to be turned over. He explained to her the effects of joint tenancy ownership with rights of survivorship but decedent was unhappy the money was to be paid over to her son’s estate prior to her death.

At the hearing, Ermyle Walters testified that she had worked at Minonk State Bank (Minonk) for 18 years. During that time she had taken decedent to the bank to handle her banking affairs and had occasionally assisted decedent by making deposits, transferring funds or cashing checks on joint accounts at her mother’s request. She also advised her mother on interest rates available for CDs. •

Subsequent to decedent’s stroke on March 20, 1984, Walters became more active in assisting decedent in her banking affairs by making deposits, writing checks, and rolling over CDs as they matured. Pursuant to decedent’s request, her attorney went to the Lida Nursing Home to see decedent in February 1985. Decedent requested that he prepare for her signature a power of attorney appointing Walters as her attorney in fact. This document was executed by decedent on February 12,1985.

Following execution of the power of attorney, Walters continued to make deposits of income into joint tenancy accounts created prior to decedent’s stroke. Sources of the income included interest from the joint CDs, income tax refunds, proceeds from the sale of stock held by decedent individually, and farm income. Walters paid decedent’s expenses from the joint checking account and transferred funds from other joint accounts into checking to cover current expenses. None of the documents of record indicate that decedent maintained any bank accounts solely in her own name.

In March 1986, Walters withdrew $20,000 for emergency expenses from one of the joint tenancy accounts in response to a crisis in her mother’s health. When the crisis passed, the money was redeposited. In September 1986, respondents together withdrew $29,000 for their own use. According to Walters, this withdrawal was at decedent’s direction.

On March 28, 1990, the court entered an order finding as follows: (1) decedent was not incompetent following her stroke; (2) a confidential relationship existed between decedent and Walters from the date following the stroke until the execution of the power of attorney on February 21, 1985, and thereafter a fiduciary relationship existed; (3) Walters took action to benefit herself and the other joint tenant to the detriment of the estate; and (4) it was the intent of the decedent that only the amounts at the date of her stroke on March 20, 1984, were to become the property of the survivors. The court then concluded (1) decedent “intended to establish an unequal division of her estate between the various ‘branches’ of the family” and set up the joint accounts “with full understanding of the legal consequences”; (2) there was “no evidence that Ermyle Walters or Lucille Gunther claimed any of the joint property income as theirs during the lifetime of Dena Harms and thus her general estate bore this obligation”; (3) “[a]ny decision by a joint owner to create new joint property with the income or to increase the value of existing joint property with income if that person holds a confidential or fiduciary relationship at the time is presumptively invalid”; and (4) “the assets held jointly on the date of death pass to the person shown to be the joint owner on that date to the extent of the asset’s principal value on March 20, 1984.” The court then ordered the parties to make computations consistent with the order and, if they could not agree, an accountant was to be appointed by the court.

Both parties hired accountants and their reports did not agree. The court appointed a certified public accountant (CPA) who filed a report on June 14, 1991. That report indicated that $87,573.76 was not traceable to principal balances existing on March 20, 1984. Interest computed at the prime rate brought the total amount due the estate to $128,506.58 as of June 10, 1991.

For simplicity of discussion, we address first petitioners’ cross-appeal contending that the joint accounts were established for convenience only and all sums are property of the estate. At the creation of a statutory joint tenancy, a presumption of donative intent arises and a party claiming adversely to the instrument creating the joint account has the burden of proving by clear and convincing evidence that a gift was not intended. Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 589, 202 N.E.2d 470, 471-72; In re Estate of Lewis (1990), 193 Ill. App. 3d 316, 319, 549 N.E.2d 960, 962.

Petitioners speculate that since the pattern of creating joint tenancies was begun in the years prior to the death of decedent’s son in 1979 and the three children would take the funds in the same percentage they otherwise would under the terms of the will, the names must have been included only for convenience. Petitioners claim the accounts retained this “convenience” status following the death of decedent’s son Arthur since the two daughters would “logically” take care of their mother’s personal needs.

A “convenience account” is an account, apparently held in some form of joint tenancy, where in fact the creator did not intend the other tenant to have any interest, present or future, but had some other intent in creating the account. An example of a convenience account is an account where the creator only wanted the other tenant to write checks at the creator’s direction, and not to have any share in the account during the creator’s life or on the creator’s death.

A joint account is often used as a form of testamentary disposition, a will substitute, where the creator does not intend the other tenant to have any present interest, but does intend the other tenant to have the account on the creator’s death. Such an account is a true joint tenancy account with the right of survivorship, whether or not the other tenant claimed any interest in the account during the creator’s life. A joint account created as an alternate form of testamentary disposition is not a convenience account, at least not as far as the right of survivorship is concerned. It is illogical that an individual would place all of her substantial assets in joint accounts if she just wanted someone to relieve her of the day-to-day burden of writing checks. Petitioners do not suggest what “convenience” the creator would have intended in setting up any of these accounts, or why she would intend, contrary to the form of the accounts, that they not carry with them a right of survivorship. A lack of knowledge as to the purpose for creation of a survivorship account is insufficient as a matter of law to overcome the presumption of donative intent. (See In re Estate of Gibbons (1978), 65 Ill. App. 3d 314, 316, 382 N.E.2d 585, 587.) Moreover, the record reveals direct evidence supporting the presumption of donative intent. The terms of the first codicil to the will, dated January 15, 1975, indicate that decedent intended to monetarily benefit respondents from her personal estate in order to “equalize” sums received by her son from her husband’s estate. During the three years decedent resided at the nursing home, all the family members visited her from time to time, but Ermyle Walters went to see her every day, bringing her the mail and reading the newspaper to her. It is not unreasonable to conclude decedent intended to favor her daughters over her grandchildren.

The trial court found decedent

“understood the effect and consequences of the creation of joint accounts/ownership including the rights of survivorship.
*** [And] took actions in the creation of joint ownership of certain assets which were inconsistent with occasional statements and actions regarding her estate plan.”

Based on this finding, the trial court determined that as to account balances existing at March 20, 1984, or traceable to accounts in existence on that date, respondents acquired sole title by right of survivor-ship.

Petitioners cite authority wherein the surviving joint tenant was found not to have exercised authority over the account inconsistent with decedent’s ownership and there was evidence the decedent did not intend to make a gift of any interest in the account (see In re Estate of Guzak (1979), 69 Ill. App. 3d 552, 555, 388 N.E.2d 431, 433-34; In re Estate of Abbot (1987), 157 Ill. App. 3d 289, 293, 510 N.E.2d 619, 622; In re Estate of Schroeder (1979), 74 Ill. App. 3d 690, 694-95, 393 N.E.2d 1128, 1131-32 (decedent wanted someone to help manage her affairs while she was hospitalized); In re Estate of Friedman (1984), 123 Ill. App. 3d 82, 86-87, 462 N.E.2d 692, 695 (decedent established joint accounts after hospitalization, to assist in handling of her financial affairs)). In all of these cases, the evidence was found sufficient to rebut the presumption of donative intent. Due to a lack of any articulable facts showing decedent here established the joint tenancies merely for convenience, we cannot say the trial court’s conclusion that account balances existing on March 20, 1984, or traceable to accounts in existence at that time, are the property of respondents through operation of law is against the manifest weight of the evidence. See In re Estate of Lewis (1990), 193 Ill. App. 3d 316, 320, 549 N.E.2d 960, 962.

Petitioners argue that certain of the accounts do not meet the statutory requirements necessary to create a survivorship account. Section 2(a) of “An Act to revise the law in relation to joint rights and obligations” (Act) provides that when a deposit in a bank or trust company shall “be made in the names of two or more persons payable to them when the account is opened or thereafter” the deposit may be paid to any one of said persons whether the other be living or not. (Ill. Rev. Stat. 1989, ch. 76, par. 2(a).) Despite the argument that section 2(a) of the Act was intended as a bank protection statute, the section has been read to provide a statutory method by which a right of survivorship could be created as between the parties themselves. (Frey v. Wubbena (1962), 26 Ill. 2d 62, 66-67, 185 N.E.2d 850, 853; Murgic, 31 Ill. 2d at 589, 202 N.E.2d at 471-72.) “Public policy would seem to require the adoption by the courts of a more liberal and practical view of these common transactions.” (Frey, 26 Ill. 2d at 66, 185 N.E.2d at 853.) It is possible to read section 2(a) of the Act to authorize creation of a statutory survivorship account without the execution of a signed agreement, but an earlier case had required the signature of the parties,. and Frey refused to disturb that decision. (Frey, 26 Ill. 2d at 67-68, 185 N.E.2d at 854, citing Doubler v. Doubler (1952), 412 Ill. 597, 107 N.E.2d 789.) Another statute, with more extensive requirements, applies to the creation of statutory survivorship accounts in savings and loan institutions (Ill. Rev. Stat. 1989, ch. 17, par. 3304 — 8(a)), but that statute does not apply to this case, which involves bank accounts.

The checking account, No. 20 — 064—3, was opened January 10, 1983, in the names “Dena A. Harms or Lucille Gunther and Ermyle Walters,” with only one signature required for withdrawal. All three signatures appear on the account agreement. A number of blocks appear under the heading “Type of Account — Personal,” including “Individual,” and “Joint — With Survivorship.” Other blocks appear under the heading “Type of Account — Business.” None of the blocks was checked. The agreement provides that “[a]ny one of the persons who signs this agreement may withdraw all or any portion of the account balance.” The money market account, No. 70 — 199—0, is similar. There, a choice could be made between “Personal Account” and “Commercial Account,” and the personal account block was checked. Again the agreement provided that “[u]nless clearly indicated to the contrary, any one of you who signs *** may withdraw or transfer all or any part of the account balance at any time [subject to limitations not relevant here].” Both accounts accordingly complied with section 2(a) of the Act, as they were bank accounts, made in the names of two or more persons, and payable to any of them when the account was opened or thereafter. The accounts were also created pursuant to an agreement signed by all the parties at the time the account was opened. The trial court did not err in finding that both these accounts were statutory survivorship accounts under section 2(a) of the Act. It is not necessary for us to consider what the result might be if a block inconsistent with a right of survivorship had been checked.

Petitioners argue a contrary result is required by O’Vadka v. Rend Lake Bank (1990), 203 Ill. App. 3d 1007, 561 N.E.2d 360, apparently involving a checking account or savings account employing a signature card similar to those in this case. There was a question in O’Vadka whether the joint account with survivorship block had been checked, and the court deemed Murgie (and thereby Frey) inapplicable on the issue whether a statutory survivorship account had been created.

“The following conditions must be met in order to establish a joint tenancy with right of survivorship as personal property, and, except as the statute makes specific provisions governing certain other cases, the requirements are the same whether the property in question is located in a safety deposit box or elsewhere: (1) such an interest can be created only by means of a written instrument; (2) the instrument must express an intention to create a joint tenancy in personal property and apparently must expressly provide that the property so held is to be subject to the right of survivorship between the owners thereof; and (3) the instrument should comply with the general requirements of a will as to definitions of description of subject matter, parties, and certainty of its object.” (O’Vadka, 203 Ill. App. 3d at 1014-15, 561 N.E.2d at 365.)

O’Vadka relied for these requirements on David v. Ridgely-Farmers Safe Deposit Co. (1950), 342 Ill. App. 96, 95 N.E.2d 725, a decision which preceded Frey by 12 years. David involved a safe deposit box, not a savings or checking account, and the requirements discussed by the court were those under the introductory language of section 2, not section 2(a) of the Act. In David the court required that the amount of money involved be specified in the agreement, and held among other things that the statute is only a bank protection statute, that the statute does not provide a simplified method for the creation of a joint tenancy with right of survivorship, that the existence of the traditional four unities of title is essential to the creation of a joint tenancy, and that the right of survivorship must specifically be mentioned. To the extent David has any relevance in a case involving savings accounts or checking accounts, David is clearly not good law after Frey. Further, O’Vadka only reversed the granting of summary judgment, while in this case we affirm a decision after trial.

We further disagree with the implication in O’Vadka that Murgic and Frey have nothing to say on the creation of a statutory right of survivorship. Frey followed earlier cases which construed the statute to have “provided a statutory method by which a right of survivorship could be created as between the parties themselves” (Frey, 26 Ill. 2d at 67, 185 N.E.2d at 853), something which David refused to do with the introductory language of section 2 which applied to safe deposit boxes. (David, 342 Ill. App. at 109-10, 95 N.E.2d at 732.) Compliance with section 2(a) of the Act may lead to a finding of a right of survivorship in most cases where accounts are held in two names, unless there is a clear indication to the contrary, but we see that result as superior to a rule where the result would depend on the form the bank happened to be using at the moment, or the advice given the parties by a bank employee. In this case the cashier at Minonk testified the employees of the bank did not pay much attention to the different forms they used, but simply inserted the word “or” between the account holder names when a joint tenancy with right of survivor-ship was intended. Cf. Frey, 26 Ill. 2d at 74-75, 185 N.E.2d at 857 (use of word “or” does not indicate an intention to create a right of survivorship, and is insufficient where there is no deposit agreement).

Petitioners also argue that Minonk and the Farmers State Bank did not require signature cards for some CDs, and therefore those CDs could not give rise to a right of survivorship. Even assuming no signature cards were required, no signed agreement is necessary for the creation of a right of survivorship in a CD. CDs are not bank accounts under section 2(a), but “other evidences of indebtedness or of interest” (like stocks and bonds) under section 2(b) of the Act (Ill. Rev. Stat. 1989, ch. 76, par. 2(b)), which do not require any signed agreement. In re Estate of Baxter (1973), 56 Ill. 2d 223, 225-26, 306 N.E.2d 304, 306; In re Estate of Vale (1977), 55 Ill. App. 3d 712, 715, 371 N.E.2d 198, 200-01.

We turn now to the issues raised in the original appeal. The trial court determined that a confidential or fiduciary relationship existed between Ermyle Walters and decedent from March 20, 1984, the date of decedent’s stroke. Based on that relationship, the court found that Walters “took action regarding the joint ownership assets which served to benefit herself and the other joint owner to the detriment of the individual estate of the decedent.” This finding was apparently predicated upon evidence showing income earned by decedent or interest earned by virtue of the joint accounts was deposited by Walters into existing joint bank accounts, rather than (as suggested by petitioners) a trustee account. In determining these sums were property of the estate, the court then concluded: “Any decision by a joint owner to create new joint property with the income or to increase the value of existing joint property with income if that person holds a confidential or fiduciary relationship at the time is presumptively invalid,” citing In re Estate of Wernick (1986), 151 Ill. App. 3d 234, 502 N.E.2d 1146, modified on other grounds (1989), 127 Ill. 2d 61, 535 N.E.2d 876, and Crawford v. Krebs (1976), 40 Ill. App. 3d 568, 352 N.E.2d 76. However, we find both of those cases inapposite. Each involved a transfer of real property and money procured by fraud and undue influence on the part of the fiduciary. In neither case was the presumption of donative intent attaching to joint tenancy bank accounts at issue and neither case is dispositive of the issues herein.

As respondents do not contest the court’s finding that a fiduciary relationship existed between decedent and Walters as of March 20, 1984, we are confronted with the application of conflicting presumptions to the facts of this case. On the one hand, presumption of fraud attaches to gifts made to one who stands as a fiduciary to the donor. (Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 464, 448 N.E.2d 872, 877-78; In re Estate of Martin (1990), 201 Ill. App. 3d 1061, 1064, 559 N.E.2d 1112, 1114.) In contrast, a presumption of donative intent attendant to survivorship joint tenancies is conclusive unless clear and convincing evidence of a lack of donative intent is shown. Several cases have held that the burden of proof as to donative intent is not reversed based on the existence of a fiduciary relationship, absent evidence that the fiduciary relationship was abused. (See In re Estate of Foster (1969), 104 Ill. App. 2d 447, 453-54, 244 N.E.2d 620, 623-24; In re Estate of Copp (1971), 132 Ill. App. 2d 974, 980, 271 N.E.2d 1, 5; In re Estate of Wilkening (1982), 109 Ill. App. 3d 934, 939-40, 441 N.E.2d 158, 162.) Our view with regard to the application of conflicting presumptions is that they perform a dual role. The presumptions first establish each of the parties’ prima facie obligation and second negate the necessity for conclusive rebuttal evidence, leaving the trial court free to make a determination based on the facts and credibility of witnesses. (See In re Marriage of Rosen (1984), 126 Ill. App. 3d 766, 772-73, 467 N.E.2d 962, 966; Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 216, 446 N.E.2d 499, 502-03.) The conflicting presumptions cancel each other. Decisions made by the trial court under these circumstances will not be disturbed on review unless they are contrary to the manifest weight of the evidence.

In this instance, the court determined that essentially all additions to the joint accounts following decedent’s stroke on March 30, 1984, less expenses incurred by decedent were properly payable to the estate, including the $29,000 withdrawn by respondents in 1986 for their own use. We have determined that the right to the joint tenancy accounts devolved to respondents by operation of law. Based on the facts of this case and a lack of evidence of any manipulation of decedent’s assets by Ermyle Walters, even if the $29,000 was improperly withdrawn, respondents would have taken same on decedent’s death by virtue of their right of survivorship. Therefore, we need not comment on the propriety of this withdrawal.

Apparently the court’s finding that Ermyle Walters acted “to benefit herself and the other joint owner to the detriment of the individual estate of the decedent” was based on deposits of subsequently earned income into joint accounts. However, our review of the record fails to reveal any manipulation by Walters or deviation in the handling of the joint accounts from the custom and practice of decedent during the period prior to her stroke. Indeed, interest income accruing by virtue of the joint accounts would have been automatically credited by the banking institutions without any action by Walters at all. While Walters shifted funds from one joint account into newly created CDs, the accounts from which funds were transferred were joint accounts created prior to decedent’s stroke. There is no evidence decedent maintained any individual bank accounts. Under such circumstances, Walters was entitled to handle the accounts as her mother had in the past and there is no showing Walters did anything unusual. Therefore, periodic deposits of interest income into the joint accounts following March 20, 1984, cannot be characterized as a diversion of assets belonging to the estate.

Nevertheless, petitioners argue, and respondents concede, that income generated by individual assets or proceeds from converted assets were improperly deposited in joint accounts and are properly payable to the estate. Sources of funds originally standing in decedent’s name only include income tax refunds, farm income from the sale of grain, dividends from and proceeds of the sale of stock, and other payments to decedent derived from sources other than the joint tenancy bank accounts. From our review of the record, however, it appears funds from individual assets were properly applied to decedent’s debts and no sums belonging to the estate remained in the joint accounts.

The order finding $128,506.58 payable to the estate representing income accruing after March 20, 1984, and interest thereon to June 10, 1991, is against the manifest weight of the evidence and must be reversed. While it appears that income generated by individual assets of decedent and accruing after March 20, 1984, has been entirely subsumed by payment of decedent’s debts, we conclude better practice dictates this aspect of the case should be remanded with directions the trial court determine whether individual income exceeded expenses for the period March 20, 1984, to the date of death. To this end the court may take further evidence if it deems it necessary or appropriate.

Due to our resolution of the foregoing issues, we deem it unnecessary to reach the issue raised by respondents as to the court’s allegedly improper reliance on the CPA it appointed.

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

GREEN, P.J., and STEIGMANN, J., concur.


author: JUSTICE HAASE

text:
    MARTHA LaHOOD, as Ex’x of the Estate of Anthony T. LaHood, Deceased, Plaintiff-Appellee, v. PETER J. COURI, Defendant-Appellant (United Federal Savings Bank, f/k/a United Federal Savings and Loan Association of Illinois, et al., Defendants).
    Third District
    No. 3—92—0035
    Opinion filed October 6, 1992.
    Modified on denial of rehearing December 4, 1992.

      Moehle, Swearingen & Associates, Ltd., of Pekin (Valerie Moehle Umholtz, of counsel), for appellant.
    Kevin D. Schneider, L. Lee Smith, and James R. Morrison, all of Westervelt, Johnson, Nicoll & Keller, of Peoria, for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The present action comes before us for the third time (e.g., Couri v. Korn (1990), 202 Ill. App. 3d 848, 560 N.E.2d 379; Couri v. Korn (1990), 203 Ill. App. 3d 1091, 562 N.E.2d 235). Martha LaHood, the executrix of the estate of Anthony LaHood, brought the present foreclosure action against the defendant, Peter Couri. LaHood claims that Couri defaulted on a promissory note currently held by the estate of Anthony LaHood. The note at issue was assigned by the South Side Trust & Savings Bank of Peoria (South Side), to Anthony LaHood prior to his death. The note is secured by a mortgage on farm property owned by Couri. Couri claims that the mortgage was extinguished when South Side assigned the note to LaHood. LaHood filed a motion for summary judgment claiming that the propriety of the assignment had been litigated and resolved in its favor. Based upon this prior adjudication, LaHood argued that it was entitled to summary judgment. The trial court agreed and granted LaHood’s motion. Couri appeals. We affirm in part and reverse in part.

Anthony LaHood and Peter Couri signed a note for $12,645 at the South Side Trust & Savings Bank of Peoria. Because there is no indication to the contrary on the face of the note, it appears both Couri and LaHood signed as co-makers. The note was secured by a mortgage on property owned by Couri. When the note came due, La-Hood paid off the note. In exchange for the payment, South Side assigned its interest in the mortgage to LaHood. LaHood then demanded that Couri pay the amount due on the note. Couri refused and filed an action for quiet title. Approximately one year later, La-Hood filed the present foreclosure action. Couri then filed a motion to dismiss or, in the alternative, to stay the foreclosure proceedings pursuant to section 2 — 619(a)(3) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(3)). The trial court granted Couri’s motion and ordered the foreclosure proceedings stayed pending resolution of the quiet title action. LaHood appealed this order. We affirmed the trial court’s ruling (Couri v. Korn (1990), 203 Ill. App. 3d 1091, 562 N.E.2d 235), and upon remand, the court ruled in favor of LaHood. No further appeals were taken in that case.

After judgment was entered in the quiet title action, LaHood sought a judgment on its foreclosure action. Couri asserted, as a defense to the foreclosure action, the same theories he unsuccessfully argued in the quiet title action. The trial court ruled these issues had already been litigated and that LaHood was entitled to summary judgment as a matter of law. The trial court also awarded LaHood, pursuant to the terms and conditions of the note, his reasonable attorney fees and court costs. Couri appeals. Couri claims (1) the trial court erred by using “offensive” collateral estoppel and res judicata; and (2) the trial court erred in awarding the plaintiff his attorney fees.

In Illinois, summary judgment is appropriate “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 judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) The aim of summary judgment is not to try issues but to determine whether any triable issues exist. The court is to determine the existence or absence of a genuine issue as to any material fact from the affidavits, depositions, admissions, exhibits and pleadings in the case. Allen v. Meyer (1958), 14 Ill. 2d 284, 152 N.E. 576.

In the case at bar, the issue in dispute is the validity of the assignment of the mortgage from South Side to LaHood. Couri claims that LaHood was a co-maker on the note and that the debt was extinguished when paid by LaHood. LaHood claims he was an accommodation party and that the assignment was valid. This issue, however, was resolved in the quiet title action. In Couri v. Korn (1990), 203 Ill. App. 3d 1091, 562 N.E.2d 235, we ruled that the trial court acted properly in granting a stay of the foreclosure proceedings. We opined that the stay was proper because the issue to be litigated in the quiet title and foreclosure actions was the same, namely, the validity of the assignment of the mortgage to LaHood. We said that granting the stay would make it unnecessary to relitigate the validity of the assignment.

“The essential subject matter of the quiet title claim in the 1987 action and this foreclosure action is the same: the mortgage from Couri to plaintiff as assignee of South Side. Staying this foreclosure action will eliminate the need to relitigate the common issue in both cases; namely, the validity of the assignment to plaintiff by South Side.” (Emphasis added.) Couri, 203 Ill. App. 3d at 1094.

Couri now asks this court to disregard our prior ruling and allow him to relitigate the validity of the assignment. In effect, Couri argues that the trial court erred in the quiet title action. Couri may well be correct. In fact, a very strong argument may be made to that effect. The correctness of the court’s ruling in the quiet title action, however, is not before this court. The issue that is presently before us is whether the trial court erred in granting summary judgment in the foreclosure action. Couri argues that the prohibition against “offense” collateral estoppel and res judicata allow him to litigate this issue yet again. We disagree.

Illinois distinguishes between estoppel by judgment (res judicata in the narrow sense, i.e., claim preclusion) and estoppel by verdict (collateral or direct estoppel, i.e., issue preclusion). Redfern v. Sullivan (1983), 111 Ill. App. 3d 372, 375, 444 N.E.2d 205, 208; Morris v. Union Oil Co. (1981), 96 Ill. App. 3d 148, 153-54, 421 N.E.2d 278, 282. See People v. Bone (1980), 82 Ill. 2d 282, 412 N.E.2d 444, cert. denied (1981), 454 U.S. 839, 70 L. Ed. 2d 120, 102 S. Ct. 145; Gay v. Open Kitchens, Inc. (1981), 100 Ill. App. 3d 968, 427 N.E.2d 338.

There is a difference between the effect of a judgment as a bar to the prosecution of a second action upon the same claim or demand and the effect of a judgment as an estoppel in another suit between the same parties on a different claim or cause of action. (Bone, 82 Ill. 2d at 286-87, 412 N.E.2d at 446; Skolnik v. Petella (1941), 376 Ill. 500, 503-04, 34 N.E.2d 825, 826-27.) The former is res judicata (claim preclusion), which “operates as an absolute bar to a subsequent action where a prior judgment rests on the merits, ‘not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.’ ” (Bone, 82 Ill. 2d at 287, 412 N.E.2d at 446, quoting Cromwell v. County of Sac (1877), 94 U.S. (4 Otto) 351, 352, 24 L. Ed. 195, 197. See Skolnik, 376 Ill. at 504-05, 34 N.E.2d at 827; Redfern, 111 Ill. App. 3d at 375, 444 N.E.2d at 208; Morris, 96 Ill. App. 3d at 154, 421 N.E.2d at 282.) The latter constitutes collateral estoppel or estoppel by verdict (i.e., issue preclusion), which “concludes only ‘those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.’ ” Bone, 82 Ill. 2d at 287, 412 N.E.2d at 446, quoting Cromwell, 94 U.S. at 353, 24 L. Ed. 2d at 197. See Skolnik, 376 Ill. at 503, 34 N.E.2d at 826; Redfern, 111 Ill. App. 3d at 375, 444 N.E.2d at 208-09; Morris, 96 Ill. App. 3d at 153, 421 N.E.2d at 282.

In order to be barred by issue preclusion, or by claim preclusion where the claim was litigated, the prior decision must have been on the merits of the issue. (Bone, 82 Ill. 2d at 286-87, 412 N.E.2d at 446; Morris, 96 Ill. App. 3d at 153-54, 421 N.E.2d at 282; Rotogravure Service, Inc. v. R.W. Borrowdale Co. (1979), 77 Ill. App. 3d 518, 524, 395 N.E.2d 1143, 1148-49.) In addition, the party against whom the prior judgment is asserted must have had an effective opportunity to litigate the issue in the prior proceedings. (Gay v. Open Kitchens, 100 Ill. App. 3d at 971, 427 N.E.2d at 341.) For “while the purpose of the doctrine is to prevent a party from litigating the same issue twice, it should not be used to preclude a party from litigating the matter at all.” (100 Ill. App. 3d at 972, 427 N.E.2d at 341-42.) The party must have had a full and fair opportunity to litigate the issue, and it must not be an injustice to apply the doctrine. (Fred Olson Motor Service v. Container Corp. of America (1980), 81 Ill. App. 3d 825, 401 N.E.2d 1098. See Franciscy v. Jordan (1963), 43 Ill. App. 2d 344, 354-58, 193 N.E.2d 219, 223-25.) In this sense the doctrine is an equitable doctrine and subject to equitable principles. (Gay v. Open Kitchens, 100 Ill. App. 3d at 971, 427 N.E.2d at 341.) It “should only be applied as fairness and justice require.” Rotogravure Service, Inc. v. R.W. Borrowdale Co., 77 Ill. App. 3d at 525-26, 395 N.E.2d at 1149. Accord Fred Olson Motor Service, 81 Ill. App. 3d 825, 401 N.E.2d 1098.

The party asserting the preclusion bears the burden of showing with clarity and certainty what was determined by the prior judgment. (Redfern, 111 Ill. App. 3d at 377, 444 N.E.2d at 209; O’Neill v. DeLaney (1980), 92 Ill. App. 3d 292, 415 N.E.2d 1260; Gale v. Transamerica Corp. (1978), 65 Ill. App. 3d 553, 382 N.E.2d 412; Gonyo v. Gonyo (1973), 9 Ill. App. 3d 672, 292 N.E.2d 591.) This is a “heavy burden of proof” (Gale v. Transamerica Corp., 65 Ill. App. 3d at 558, 382 N.E.2d at 416); a court cannot “invoke the rule of estoppel by verdict or res judicata on pure speculation as to the finding of the trial court in the prior litigation.” (Lemanski v. Lemanski (1967), 87 Ill. App. 2d 405, 409, 231 N.E.2d 191, 194, cert. denied (1968), 393 U.S. 20, 21 L. Ed. 2d 21, 89 S. Ct. 52.) To speculate on the grounds for the prior judgment would be to remove the burden placed on the proponent. Redfern, 111 Ill. App. 3d at 377, 444 N.E.2d at 209.

Applying these principles to the action at bar, it is evident that the present action necessitates the application of the doctrine of collateral estoppel. The parties and issue litigated in the quiet title action (Couri v. Korn (1990), 203 Ill. App. 3d 1091, 562 N.E.2d 235) and the present foreclosure action are the same, namely, the validity of the assignment of the mortgage to LaHood from South Side. Once the validity of this assignment was adjudicated, Couri had the option of either accepting the court’s ruling or seeking appellate review. No appeal was taken and the judgment rendered in the quiet title action, therefore, is final.

Couri argues that the doctrine of collateral estoppel may not be applied in situations where there is a difference between the burdens of proof in the respective proceedings. We agree. For example, in One Lot Emerald Cut Stones v. United States (1972), 409 U.S. 232, 34 L. Ed. 2d 438, 93 S. Ct. 489, Francisco Farkac Klementova entered the United States without declaring to United States Customs one lot of emerald cut stones and one ring. Klementova was indicted, tried, and acquitted on criminal charges of violating 18 U.S.C. §545 (1988), by willfully and knowingly, with intent to defraud the United States, smuggling the articles into the United States without submitting to the required customs procedures. Following the acquittal, the government instituted a forfeiture action against the stones and ring. Klementova intervened in the proceedings and argued that his acquittal barred the forfeiture. The district court agreed and ruled that the forfeiture was barred by the doctrine of collateral estoppel. The United States Supreme Court reversed. The Court ruled the difference in the burdens of proof in criminal and civil cases precludes the application of this doctrine.

Couri cites the abovementioned case in support of his contention that the propriety of the assignment has not been properly adjudicated. Couri argues that the burdens of proof in the quiet title action and the foreclosure action vary. Couri is mistaken. In Rago v. Cosmopolitan National Bank (1967), 89 Ill. App. 2d 12, 19, the court ruled that possession and production into evidence by the holder of a note and mortgage, and production of evidence which establishes a default, establish a prima facie basis for recovery in favor of the holder. Once this evidence is produced, the burden is on the defendant to establish a defense. In the action at bar, this means that the defendant must produce evidence that LaHood was co-maker. We acknowledge that this seems to be an anomalous result in light of the fact that the note itself indicates that LaHood was a co-maker. Nonetheless, Couri failed to establish in a prior action that LaHood was a co-maker and there is no reason that this issue should be litigated again.

The doctrine of res judicata (or collateral estoppel) is a judicial doctrine “designed to protect litigants from the burden of retrying an identical cause of action *** and to enhance judicial economy by prohibiting repetitive litigation.” (People v. Bone (1980), 82 Ill. 2d 282, 286, 412 N.E.2d 444, cert. denied (1981), 454 U.S. 839, 70 L. Ed. 2d 120, 102 S. Ct. 145.) To allow Couri to relitigate his claim would violate this doctrine and would render our ruling in Couri v. Korn meaningless. We hold, therefore, that the trial court did not err in granting summary judgment in favor of LaHood.

The only remaining issue is the propriety of the attorney fees awarded LaHood by the trial court. Couri claims the trial court erred in ordering him to pay these fees because the plaintiff failed to produce detailed records upon which the fees and costs were predicated. LaHood did offer to produce detailed billing records for an in camera inspection by the court, but refused, under claim of privilege, to supply detailed copies of these records to opposing counsel. The defendant argues that without providing him a copy of the detailed billing records for his own inspection, he was unable to form an opinion as to the reasonableness of the fees and unable to object if need be. For this reason, the defendant argues the trial court erred in ordering him to pay the plaintiff’s attorney fees. We agree.

Provisions in contracts for awards of attorney fees are an exception to the general rule that the unsuccessful litigant in a civil action is not responsible for the payment of the opponent’s fees. (AbdulKarim v. First Federal Savings & Loan Association (1984), 101 Ill. 2d 400, 462 N.E.2d 488; Amoco Realty Co. v. Montalbano (1985), 133 Ill. App. 3d 327, 478 N.E.2d 860; Losurdo Brothers v. Arkin Distributing Co. (1984), 125 Ill. App. 3d 267, 465 N.E.2d 139.) In all cases, however, only those fees which are reasonable will be allowed (Fiorito v. Jones (1978), 72 Ill. 2d 73, 377 N.E.2d 1019; Leader v. Cullerton (1976), 62 Ill. 2d 483, 343 N.E.2d 897; In re Estate of Healy (1985), 137 Ill. App. 3d 406, 484 N.E.2d 890), the determination of which is left to the sound discretion of the trial court (Fiorito v. Jones (1978), 72 Ill. 2d 73, 377 N.E.2d 1019; Leader v. Cullerton (1976), 62 Ill. 2d 483, 343 N.E.2d 897; Board of Education of the Aptakisic-Tripp School District No. 102 v. County of Lake (1987), 156 Ill. App. 3d 1064, 509 N.E.2d 1088). It is also well settled that the party seeking the fees, whether for himself or on behalf of a client (First National Bank v. Barclay (1982), 111 Ill. App. 3d 162, 443 N.E.2d 780), always bears the burden of presenting sufficient evidence from which the trial court can render a decision as to their reasonableness. Fiorito v. Jones (1978), 72 Ill. 2d 73, 377 N.E.2d 1019; Heckmann v. Hospital Service Corp. (1982), 104 Ill. App. 3d 728, 432 N.E.2d 891; Ealy v. Peddy (1985), 138 Ill. App. 3d 397, 485 N.E.2d 1182.

An appropriate fee consists of reasonable charges for reasonable services (In re Estate of Healy (1985), 137 Ill. App. 3d 406, 484 N.E.2d 890); 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 (In re Marriage of Angiuli (1985), 134 Ill. App. 3d 417, 480 N.E.2d 513), since this type of data, without more, does not provide the court with sufficient information as to their reasonableness — a matter which cannot be determined on the basis of conjecture or on the opinion or conclusions of the attorney seeking the fees. (Flynn v. Kucharski (1974), 59 Ill. 2d 61, 319 N.E.2d 1; In re Marriage of Angiuli (1985), 134 Ill. App. 3d 417, 480 N.E.2d 513.) Rather, the petition for fees must specify the services performed, by whom they were performed, the time expended thereon and the hourly rate charged therefor. (Fiorito v. Jones (1978), 72 Ill. 2d 73, 377 N.E.2d 1019; Ealy v. Peddy (1985), 138 Ill. App. 3d 397, 485 N.E.2d 1182.) Because of the importance of these factors, it is incumbent upon the petitioner to present detailed records maintained during the course of the litigation containing facts and computations upon which the charges are predicated. Flynn v. Kucharski (1974), 59 Ill. 2d 61, 319 N.E.2d 1; Board of Education of the Aptakisic-Tripp School District No. 102 v. County of Lake (1987), 156 Ill. App. 3d 1064, 509 N.E.2d 1088.

Once presented with these facts, the trial court should consider a variety of additional factors such as the skill and standing of the attorneys, the nature of the case, the novelty and/or difficulty of the issues and work involved, the importance of the matter, the degree of responsibility required, the usual and customary charges for comparable services, the benefit to the client (Ashby v. Price (1983), 112 Ill. App. 3d 114, 445 N.E.2d 438), and whether there is a reasonable connection between the fees and the amount involved in the litigation (In re Estate of Healy (1985), 137 Ill. App. 3d 406, 484 N.E.2d 890; In re Marriage of Ransom (1981), 102 Ill. App. 3d 38, 429 N.E.2d 594). Finally, the decision of the trial court will not be reversed absent an abuse of discretion. Losurdo Brothers v. Arkin Distributing Co. (1984), 125 Ill. App. 3d 267, 465 N.E.2d 139.

In the action at bar, the plaintiff argues that it had the right to withhold itemized bills from opposing counsel under claim of privilege. We disagree. A party generally has no right to inquire into the hourly rate or number of hours billed by opposing counsel. When a party seeks to have the opposing party or counsel pay his attorney fees, however, access to such information is paramount. The very purpose of itemization is to ensure that there has been no unnecessary duplication of hours and to permit the court to disallow unnecessary, excessive or inefficient hours. (Board of Education of the Aptakisic-Tripp School District No. 102 v. County of Lake (1987), 156 Ill. App: 3d 1064, 1072.) Without providing the opposing party access to itemized billing, the court would be left to determine the reasonableness of the fees without benefit of the objections, insights and arguments of counsel. Instead, the court would be left with nothing more than a vague statement from opposing counsel that the number of hours billed seemed too high. Such a result would be plainly inconsistent with our adversarial system of jurisprudence. Courts do not make decisions in a vacuum. Under our system of justice, the party seeking recovery, whether in damages or attorney fees, must always be willing to put his proofs to the test of adversarial scrutiny.

Accordingly, we hold that the plaintiff failed to present sufficient evidence to support his claim for attorney fees. The judgment of the circuit court of Tazewell County awarding the plaintiff his attorney fees is reversed and the cause is remanded to the trial court for a hearing on fees in accordance with the views expressed herein. The court’s ruling granting summary judgment in favor of the plaintiff is affirmed.

Affirmed in part; reversed in part.

BARRY, RJ., and McCUSKEY, J., concur.


author: JUSTICE McCORMICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHERMAN ADDISON et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 1—87—0568, 1—87—0712 cons.
    Opinion filed September 29, 1992.

      Rita A. Fry, Public Defender, of Chicago (Greg Koster, Assistant Public Defender, of counsel), for appellant Sherman Addison.
    Julie L. Friedman, of Chicago, for appellant Annie Robinson.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Jane E. Loeb, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McCORMICK

delivered the opinion of the court;

Defendants, Sherman Addison and Annie Robinson, were indicted for offenses against Helen Smith. Separate juries found them both guilty of murder, armed robbery, home invasion and residential burglary. Defendant Addison was sentenced to 70 years’ imprisonment. Defendant Robinson was sentenced to natural life imprisonment. Both defendants appeal their convictions.

Defendant Robinson contends that she was not proved guilty beyond a reasonable doubt of armed robbery and murder and that the trial court erred in refusing to give a jury instruction on involuntary manslaughter. Defendant Addison contends that the trial court’s denial of his motion for severance from another codefendant, Marina Brown, and the admission into evidence of Brown’s confession at their joint trial violated his sixth amendment right to confrontation and Illinois evidentiary law.

We affirm Robinson’s conviction because the evidence is sufficient to find her guilty beyond a reasonable doubt, and we find that the trial court properly refused to give an involuntary manslaughter instruction where there was insufficient evidence to establish that this defendant’s conduct was unintentional or reckless. We reverse Addison’s conviction for murder, because the trial court erred by denying Addison’s motion to sever his trial from codefendant Brown and by allowing into evidence the confession of a nontestifying codefendant. We affirm Addison’s convictions for home invasion, armed robbery and residential burglary because we conclude that those convictions were unrelated to the admission of the confession of the nontestifying codefendant.

On February 20, 1985, friends of Helen Smith discovered her body in her home. The house had been ransacked. When Detective Richard Schak arrived at the victim’s home, he found no signs of forced entry. He observed that the victim’s body had a bra on, but it was pulled down around her waist. The victim had on a slip that was soaked with body fluids and what appeared to be blood. Schak also noticed that an elastic bandage was wrapped around the victim’s legs and a scarf was tied around her upper body. The scarf was wrapped a few times around the victim’s neck, going underneath her armpits to the back, and tied in a knot in the center of the back in a full Nelson pattern. There was blood coming from the victim’s head and one of her ears. The detective also observed egg shells and a red substance on the victim’s body. A can of red paint was found near the body. The detective found a small hunting knife in the porch area and a pipe about 12 feet from the body.

Larry Minniefield, who was Robinson’s boyfriend, was arrested for shoplifting. He told police that he had information regarding a murder and that some items relating to the murder could be found in his home. Eventually, this information led to the arrest of Addison, Robinson and Brown. The three of them made statements regarding the home invasion, murder and robbery of the victim to the police and to an assistant State’s Attorney.

Although their statements differed on some points, all three admitted most of the essential facts surrounding the crime.

All three stated that on February 16, 1985, Robinson, Addison and Brown went to the 69-year-old victim’s home to rob her. Robinson gained entry by pretending that she was looking for Brown, who was known by the victim. Once the victim opened the door, Robinson, who was armed with a gun, pushed her way in. Addison and Brown followed. Robinson proceeded to beat the victim in the face with her fists and a paint brush. She then carried the victim to a chair. Robinson tied a scarf around the victim’s neck, brought it under her arm and tied it in the back and then put the scarf around the doorknob. The victim’s legs were also tied with a bandage. Addison and Brown ransacked the victim’s home looking for money while Robinson continued to hit the victim.

Addison, Robinson and Brown all said that they found no money in the victim’s home. However, they did find and take two television sets, an answering machine, credit cards, whiskey, a pair of underwear, a belt and a T-shirt. They checked on the victim before they left her home and found that she had blood on her face and was quiet. Robinson had blood and paint on her clothes and Addison had blood on his boots.

Prior to trial, Brown moved for severance and the defendants joined in the motion. The trial court granted the motion as to Robinson, but denied the motion as to Brown and Addison. All three parties were tried simultaneously. Brown and Addison were tried by one jury while Robinson was tried by a separate jury. When the court allowed the State to present evidence admissible against only one defendant, the court excused the jury which was not to decide that person’s case.

The medical examiner testified that the victim’s death was caused by ligature strangulation and blunt head trauma. He also noticed a stab wound on the victim’s left calf.

Minniefield testified that on February 16, 1985, Robinson appeared at his apartment with Addison and Brown. Robinson had teeth marks on her right hand and possessed a headset and a black coat with a lining. Addison and Brown both had pillowcases. He observed that they pulled liquor, jewelry, a pistol, an answering machine, a portable television, and a smaller television set from the pillowcases. Minniefield further testified that they changed their clothes and sorted through the items and stated that everything would have to be burned. According to Minniefield, Brown subsequently informed him that she had burned everything.

William Smith testified that in February of 1985, Addison, Robinson and Brown approached him about getting rid of some merchandise. Smith arranged for the sale of a gun, an answering machine and the two television sets. He received a $10 commission.

An assistant State’s Attorney read Addison’s and Brown’s transcribed statements to the jury deciding their cases. After the court excused that jury and Robinson’s jury returned, an assistant State’s Attorney read Robinson’s statement to Robinson’s jury.

Robinson testified that Brown gave her the gun when they reached the victim’s house. Once the victim opened the door, Robinson pushed her way in. The victim and Robinson struggled and fell to the floor. Eggs and a can of paint were knocked over. After they struggled, Addison helped Robinson put the victim in a chair and she tied the victim’s arms. Robinson stated that she did not remember if she or Addison tied the victim’s legs, but she knew that they were tied. Robinson further testified that she did not hit the victim with a pipe, nor did she stab her with a knife. She also stated that she never intended to kill the victim.

Robinson’s jury found her guilty of murder. The jury for Addison and Brown found Addison guilty of murder and Brown not guilty of murder. Robinson, Addison and Brown were also found guilty of armed robbery, home invasion and residential burglary. This court has considered Brown’s separate appeal in People v. Brown (1989), 184 Ill. App. 3d 569, 540 N.E.2d 500. We now consider Robinson’s and Addison’s appeals.

Defendant Robinson initially contends that the State failed to prove her guilty of armed robbery beyond a reasonable doubt because she did not use or display the gun during the robbery. Section 18 — 2 of the Criminal Code of 1961 (Criminal Code) provides that “[a] person commits armed robbery when he or she violates Section 18 — 1 while he or she carries on or about his or her person or is otherwise armed with a dangerous weapon.” (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2.) Section 18 — 1 of the Criminal Code provides that “[a] person commits robbery when he takes property from the person or presence of another by the use of force.” Ill. Rev. Stat. 1985, ch. 38, par. 18 — 1.

The plain language of the Criminal Code states that an armed robbery occurs when a person carries or possesses a dangerous weapon during a robbery. The statute does not require that the dangerous weapon be displayed or used. People v. Downey (1987), 162 Ill. App. 3d 322, 333, 515 N.E.2d 362; accord People v. Thomas (1989), 189 Ill. App. 3d 365, 545 N.E.2d 289, 293.

In the case at bar, Robinson admits that she had a gun in her pocket when she entered the victim’s home, that she participated in taking items out of the home and that she beat the victim. The possession of the gun under these circumstances, notwithstanding the fact that it is not displayed or used, falls within the purview of the statutory definition of armed robbery.

Robinson further contends that the State failed to prove that she was guilty of murder beyond a reasonable doubt because she did not intend to kill the victim. Section 9 — 1(a) of the Criminal Code provides:

“A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
(3) He is attempting or committing a forcible felony other than voluntary manslaughter.” Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a).

Under the facts of the case at bar, Robinson’s intention with respect to killing the victim is irrelevant. Under section 9 — 1(a)(3), a defendant is guilty of murder when he or she kills a victim while committing a forcible felony. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(3).) There is no statutory requirement of a specific intent to kill the victim. If the acts that cause death are committed during a forcible felony other than voluntary manslaughter, the necessary element of the crime is present.

The relevant question on review, when faced with a challenge to the sufficiency of the proof, is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453.

Robinson admits that she gained entry into the victim’s home by deception, that she beat and restrained the victim and that she took the victim’s property. These admissions far exceed the standard required to defeat a challenge to the sufficiency of the proof. A rational trier of fact, after viewing this evidence in the light most favorable to the prosecution, could find the essential elements of the crime of felony murder beyond a reasonable doubt. In fact, the same finding could be made where the evidence in the case at bar is viewed in the light most favorable to Robinson.

The jury had sufficient evidence to find Robinson guilty of murder beyond a reasonable doubt.

Finally, Robinson contends that the trial court’s refusal to give the instruction she tendered on involuntary manslaughter was prejudicial error. Involuntary manslaughter is committed by one who “unintentionally kills an individual without lawful justification *** if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.” Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3(a).

In People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696, the Hlinois Supreme Court held that an involuntary manslaughter instruction should not be given where there is no evidence that would reduce the crime to manslaughter. (Ward, 101 Ill. 2d at 451.) In the instant case, there is no evidence to warrant the involuntary manslaughter instruction. After forcing her way into the victim’s home and struggling with her, defendant restrained the victim by tying her up. Robinson then beat the 69-year-old woman with her fists and a paint brush as hard as she could. She also strangled the victim and then tied her to a doorknob. The vicious manner in which defendant attacked the victim negates any suggestion that she did not intend to harm her.

The case at bar is somewhat similar to People v. Carter (1988), 168 Ill. App. 3d 237, 522 N.E.2d 653. In Carter, the victim was beaten while restrained with handcuffs. In addressing defendants’ claim that they did not intend to kill the victim, the court stated that “[t]he severity of defendants’ actions certainly gave them knowledge of the probability of death or great bodily harm, sufficient to constitute murder.” (Carter, 168 Ill. App. 3d at 248.) The severity of the beating that defendant inflicted upon the victim negates any suggestion that defendant’s conduct was only reckless. (See People v. Fickett (1990), 204 Ill. App. 3d 220, 231, 562 N.E.2d 238.) Based upon the evidence in the record, the trial court’s refusal to give the requested instruction on involuntary manslaughter was proper.

Defendant Addison contends that the denial of his motion to sever and the admission into evidence of the nontestifying codefendant’s confession at their joint trial violated his sixth amendment right to confrontation and Hlinois evidentiary law. His motion to sever was based solely on codefendant Brown’s statements. The trial court denied his motion, apparently relying on Parker v. Randolph (1979), 442 U.S. 62, 60 L. Ed. 2d 713, 99 S. Ct. 2132. However, Parker was overruled by Cruz v. New York (1987), 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714, where the Court held that in a joint trial, the pretrial confession of one codefendant that implicates another is not admissible unless the codefendant testifies and is subject to cross-examination. However, a codefendant’s confession may be admissible if it has adequate indicia of reliability. Cruz, 481 U.S. at 194, 95 L. Ed. 2d at 172, 107 S. Ct. at 1719.

Reliability can be inferred if the evidence falls within an exception to the hearsay rule or if there is a showing of “particularized guarantees of trustworthiness.” (Ohio v. Roberts (1980), 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539.) If the codefendant’s confession corroborates defendant’s confession, it is more likely to be true. (Cruz, 481 U.S. at 192, 95 L. Ed. 2d at 171, 107 S. Ct. at 1719.) However, a confession is not necessarily reliable because some of the facts stated interlock with the facts in a codefendant’s statements. (Lee v. Illinois (1986), 476 U.S. 530, 546, 90 L. Ed. 2d 514, 529-30, 106 S. Ct. 2056, 2065.) A codefendant’s confession is admissible if its account of defendant’s participation in the crime is thoroughly substantiated by defendant’s own confession. Lee, 476 U.S. at 546, 90 L. Ed. 2d at 530, 106 S. Ct. at 2065.

In the instant case, the trial court found that the statements sufficiently interlocked. However, we find that Brown’s confession contradicts Addison’s on significant points. Brown’s confession stated that (1) Addison talked her into going ahead with the crime after she had expressed a wish to abandon it; (2) the three of them planned for Addison and Robinson to tie up the old lady; (3) Addison entered the victim’s home right behind Robinson, and five minutes later when Brown entered the house, Robinson was straddling and beating the victim while Addison “was messing” with her feet; and (4) Brown blamed Addison and Robinson for the victim’s death. Addison’s confession does not substantiate any of these statements. The discrepancies between Brown’s and Addison’s confessions are significant. The admission of Brown’s confession into evidence against Addison violated Addison’s sixth amendment right to confront the witnesses against him. People v. MacFarland (1992), 228 Ill. App. 3d 107, 118.

Under Illinois evidentiary law, codefendants’ statements generally are inadmissible as hearsay against a defendant, unless defendant assented to the statements. (People v. Collins (1989), 184 Ill. App. 3d 321, 539 N.E.2d 736.) In People v. Duncan (1988), 124 Ill. 2d 400, 415, 530 N.E.2d 423, the court held that if an exception to the hearsay rule is not applicable, such statements are admissible only if limiting instructions are given and only if the statements make no reference to the codefendant.

Addison did not assent to Brown’s statement. Brown’s statement was not cleansed of all references to Addison. Therefore, it was error under Rlinois evidentiary law to admit Brown’s statement against her codefendant Addison.

The State argues that even if the trial court erroneously permitted the jury to consider Brown’s statement against Addison, the error was harmless. In Schneble v. Florida (1972), 405 U.S. 427, 430, 31 L. Ed. 2d 340, 344, 92 S. Ct. 1056, 1059, the Supreme Court held that in some cases the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the codefendant’s admission is so insignificant by .comparison, that it is clear beyond a reasonable doubt that the improper .use of the admission was harmless error. See Brown, 184 Ill. App. 3d at 574.

Addison was convicted of murder, armed robbery, home invasion and residential burglary on the theory of accountability. Addison confessed to going with Robinson and Brown to the victim’s house to rob her. He checked to be sure that the victim was at home. He stated that Robinson had a gun and he saw Robinson beat and tie the victim up. Addison admitted that they took items from the victim’s home. He was accountable for what happened based on his own statement.

Addison’s statement was corroborated by other witnesses. Minniefield’s and Smith’s testimony regarding the gun and other items taken from the victim’s home corroborated Addison’s statement. Brown’s confession corroborated Addison’s statement that there was a plan to invade the victim’s home to rob her and they carried it out.

However, Addison claims prejudice because he was convicted of murder, but Brown was not. He contends that he and Brown had equal roles in planning and executing the home invasion and robbery. Absent Brown’s confession, there would have been no evidence that Addison did anything other than search the victim’s home. Although the evidence properly admitted against Addison amply supports his conviction for murder on the theory of accountability, the evidence against Brown was, in all material respects, identical to the evidence properly admitted against Addison. Where codefendants are tried on the same facts, the verdicts should be consistent. People v. Beasley (1976), 41 Ill. App. 3d 550, 555, 353 N.E.2d 699.

Here, the significant differences in the evidence presented against Brown and Addison came from Brown’s statement which was improperly admitted against Addison. Because the jury reached different verdicts on the charge of murder against Addison and Brown, admitting Brown’s statement into evidence against Addison cannot be considered harmless error beyond a reasonable doubt.

For the foregoing reasons, we affirm the judgment against Robinson and affirm Addison’s convictions for home invasion, armed robbery and residential burglary. We reverse Addison’s conviction for murder and remand for a retrial on that charge.

The trial court imposed a sentence of 70 years’ imprisonment against Addison on the jury verdict finding him guilty of murder. The verdicts finding Addison guilty of home invasion, residential burglary, armed robbery and their respective sentences were merged with the sentence imposed in the murder conviction. In view of our reversal of Addison’s conviction for murder and our affirmance of his convictions for home invasion, armed robbery and residential burglary, we direct the circuit court to sentence Addison on the affirmed convictions.

No. 1 — 87—0568, Affirmed in part; reversed in part and remanded with directions.

No. 1-87-0712, Affirmed.

SCARIANO and DiVITO, JJ., concur.