author: JUSTICE LUND

text:
    THE CHAMPAIGN NATIONAL BANK, Plaintiff and Counterdefendant-Appellee, v. LANDERS SEED COMPANY, INC., et al., Defendants and Counterplaintiffs-Appellants (Charles Landers et al., Defendants-Counter-plaintiffs).—THE CHAMPAIGN NATIONAL BANK, Plaintiff and Counter-defendant-Appellee, v. LANDERS SEED COMPANY, INC., et al., Defendants and Counterplaintiffs-Appellants.
    Fourth District
    Nos. 4—89—0464, 4—90—0023 cons.
    Opinion filed March 15, 1990.
    Rehearing denied April 5, 1990.

      Law Offices of John H. Bisbee, of Macomb (John H. Bisbee, of counsel), for appellants.
    James W. Evans, Ltd., and Evans & Froelich, both of Champaign, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

The genesis of this dispute was the entering of a loan agreement between the Champaign National Bank (hereinafter Bank) and Land-ers Seed Co., Inc. (hereinafter Landers). As part of the agreement, four individuals had to sign as personal guarantors of the loan. They were: Charles and Lorelyn Landers and Charles’ parents, Glen and Maxine Landers. (For the sake of clarity, the individuals will henceforth be, at times, referred to by first names.)

On January 16, 1984, the Bank filed its complaint on the promissory note in the circuit court of Moultrie County. The case against Landers was severed from that against the guarantors. After a jury trial, judgment was entered for the Bank on the note in the amount of $724,637.77. Judgment was also entered for Landers for breach of an oral contract in the amount of $60,833.31. Both parties appealed.

This court in Champaign National Bank v. Landers Seed Co. (1988), 165 Ill. App. 3d 1090, 519 N.E.2d 957, cert. denied (1989), 489 U.S. 1019, 103 L. Ed. 2d 199, 109 S. Ct. 1138 (Landers I), reversed the judgment for Landers and affirmed that for the Bank. This court’s mandate issued on November 30, 1988.

The Bank then proceeded against Charles, Lorelyn, Glen, and Maxine. It filed motions for summary judgment in December 1988. Glen, Maxine, and Charles filed motions seeking permission to file additional affirmative defenses, which were denied. On February 21, 1989, Landers filed, pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401), a petition which asserted this court’s decision in Landers I was void as being beyond the scope of our authority, and requested the trial court to refuse to give any effect to the decision. On May 5, 1989, the circuit court entered orders denying Landers’ petition and granting the Bank judgments against Charles, Lorelyn, Glen, and Maxine. Lorelyn did not appeal. Landers now appeals the denial of its section 2 — 1401 petition. Charles, Glen, and Maxine (defendants) appeal the denial of their request to file additional affirmative defenses and the granting of the Bank’s summary judgment motions.

A

We first address the question of whether our decision in Landers I was void. The facts relating to the merits of the dispute on the note are set forth in Landers I.

In that appeal, the Bank, in its cross-appeal, alleged (1) the trial court erred by allowing evidence in violation of the parol evidence rule; (2) the evidence presented was legally insufficient to establish that the Bank’s breach of the asserted oral contract caused the failure of Landers; and (3) there were errors with the instructions. At oral argument before our court in Landers I, counsel for the Bank appeared to have admitted sufficient facts were present at trial to justify the jury finding an oral contract existed. The Bank’s counsel attacked the jury verdict, contending that admission of the evidence relating to an oral contract was a violation of the parol evidence rule. He argued that none of the evidence was admissible to reform a written contract, and that the written contracts were the various debt instruments.

In Landers I, this court, admitting so in the opinion, decided the case on grounds not argued on appeal by the Bank or Landers. This court determined that the facts presented by Landers failed to establish the existence of a valid oral contract. This holding is consistent with this court’s decision in McClellan v. Banc Midwest (1987), 164 Ill. App. 3d 304, 517 N.E.2d 762, which was filed approximately one month prior to Landers I being filed. This court also determined, as an alternative ground, that the jury’s decision that the contract was breached was against the manifest weight of the evidence.

Landers believes this order is void as being an improper exercise by the court and has so maintained in its petition for rehearing, petition for leave to appeal to the Illinois Supreme Court, writ of certio-rari to the United States Supreme Court and, now, its petition under section 2 — 1401 in the trial court. Landers advances four reasons for the Landers I order being void. These are: (1) since the grounds relied on by this court were not properly preserved by the Bank, this court was without subject-matter jurisdiction to decide the issue; (2) Landers was given no notice concerning the issue and was not given an opportunity to be heard on this issue; (3) the court’s procedure violated Landers’ due process rights; and (4) this court’s decision usurps Landers’ right to a jury trial.

In order to have a valid judgment, the court must have both jurisdiction over the subject matter of the litigation and jurisdiction over the parties. (In re Marriage of Verdung (1989), 126 Ill. 2d 542, 547, 535 N.E.2d 818, 820; State Bank v. Thill (1986), 113 Ill. 2d 294, 308, 497 N.E.2d 1156, 1161.) Landers maintains failure to have subject-matter jurisdiction will result in any order being void.

Landers observes that this court has subject-matter jurisdiction as such, because Supreme Court Rule 301 (107 Ill. 2d R. 301) allows appeal of all final judgments. However, it believes Rule 366(b)(2)(iii) (107 Ill. 2d R. 366(b)(iii)) and section 2 — 1202 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1202) provide how that review is to be exercised. Since the Bank did not comply with these provisions, Landers believes this court exceeded its jurisdiction and the decision is void.

Supreme Court Rule 366 sets forth the power of the reviewing court and the scope of permissible review. It provides in part:

“In all appeals the reviewing court may, in its discretion, and on such terms as it deems just,
(5) enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief, including a remandment, a partial reversal, the order of a partial new trial, the entry of a remitti-tur, or the enforcement of a judgment, that the case may require.” 107 Ill. 2d R. 366(a)(5).

The first case to discuss the language of this rule was Hux v. Roben (1967), 38 Ill. 2d 223, 230 N.E.2d 831. There, in a situation somewhat analogous to ours, the appellate court was asked to review the propriety of an entry of an order of specific performance. The appellate court, on its own, determined the matter should be reversed because the contract was not sufficiently definite. One party appealed to the supreme court, arguing the appellate court exceeded its authority. The supreme court initially observed that the appellate court briefs raised the issue of the adequacy of the contract. It then observed:

“A further word is appropriate, however, in view of the sweeping character of the attack on the judgment of the appellate court. The last sentence of Rule 341(e)(7) of the rules of this court (36 Ill. 2d 138), ‘Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing’, states an admonition to the parties, not a limitation upon the jurisdiction of the reviewing court. The distinction clearly appears when that sentence is read in conjunction with Rule 366, which deals with the powers of a reviewing court and the scope of review. Rule 366 provides: ‘(a) Powers. In all appeals the reviewing court may, in its discretion, and on such terms as it deems just *** (5) give any judgment and make any order that ought to have been given or made, ***’. (36 Ill. 2d 159.) A similar thought is expressed in the provision of Rule 615 with respect to the review of criminal cases: ‘Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.’ 36 Ill. 2d 182.
These provisions recognize that the responsibility of a reviewing court for a just result and for the maintenance of a sound and uniform body of precedent may sometimes override the considerations of waiver that stem from the adversary character of our system. [Citations.] There are limitations. ‘[A]n appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had they been presented at the trial.’ [Citation.] In exercising the power care should be taken that the litigants are not deprived of an opportunity to present argument. In the case before us the issue was one of law which involved no problem of proof, and the purchasers had an opportunity to file petition for rehearing in the appellate court, but they did not do so.” Hux, 38 Ill. 2d at 224-25, 230 N.E.2d at 832.

The supreme court has repeatedly relied on the Hux analysis. (See Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208, 210-11, 443 N.E.2d 563, 564; People v. Barnard (1984), 104 Ill. 2d 218, 228-29, 470 N.E.2d 1005, 1008.) In Barnard, the court observed that application of Rule 366 is similar to the plain error exception at Rule 615 (107 Ill. 2d R. 615). In Gatto v. Walgreen Drug Co. (1975), 61 Ill. 2d 513, 520, 337 N.E.2d 23, 28, the court, citing cases, observed that it had in many instances, pursuant to Rule 366, decided issues that had not been presented to, or decided by, the court which issued the decision that is being reviewed.

This holding has also been applied in numerous appellate court decisions. See, e.g., Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 608-09, 456 N.E.2d 958, 964; Brown v. Brown (1978), 62 Ill. App. 3d 328, 332-33, 379 N.E.2d 634, 637; Siebach v. Pienta (1978), 60 Ill. App. 3d 645, 647, 377 N.E.2d 393, 395; City of Wyoming v. Illinois Liquor Control Comm’n (1977), 48 Ill. App. 3d 404, 407-08, 362 N.E.2d 1080, 1083.

Landers argues Cockerill v. Wilson (1972), 51 Ill. 2d 179, 281 N.E.2d 648, distinguishes Hux\ and that this distinction is equally applicable to Landers I. However, in Cockerill, the appellate court construed the meaning of a covenant, an issue not argued on appeal; while Landers I involved a question of law, whether the facts presented at trial were sufficient to create a contract.

Landers’ argument of deprivation of due process by this court in Landers I also fails to point out its use of a petition for rehearing. We adopt the reasoning of Phelps v. O’Malley (1989), 187 Ill. App. 3d 150, 153-54, 543 N.E.2d 311, 313-14:

“Defendant fails to recognize that he has not been denied an opportunity to address his contentions to this court. This opportunity is provided to all parties of appeal through a petition for rehearing. Defendant filed a petition for rehearing ***. *** It is clear from defendant’s petition that he took full advantage of the opportunity to present his contentions to this court. Though defendant did not make the argument made in this appeal that the trial court exceeded its authority, defendant clearly had an opportunity to make this argument and failed to do so. Defendant’s arguments in his petition for rehearing were considered and denied. Defendant also took advantage of his right to petition the supreme court, and this was denied. Thus, defendant has had his opportunities.”

In the present case, the alleged oral agreement supposedly arose from the oral communications and the facts surrounding those communications which took place when the Bank changed from a participating lender to the principal lender. This was at a time when all parties were at least partly aware of Landers’ financial problems. During the trial of Landers I, over the objection of the Bank based on the parol evidence rule, an exhaustive examination of various parties concerning the new financing took place. This testimony provided the evidence upon which the alleged oral agreement was based. This evidence was considered by our court in determining the decision in Landers I. We conclude our decision in Landers I was not void and the trial court was correct in denying relief under the section 2 — 1401 motion.

B

Next, we address whether the trial court erred in granting summary judgment against Charles, Glen, and Maxine. Judgment was entered against Charles’ former wife, Lorelyn, but she is not a party to this appeal. After our mandate issued in Landers I, the Bank pursued its original actions against Charles, Lorelyn, Glen, and Maxine. The Bank’s actions were based on the loan guarantee executed by the four Landerses.

The answer by Charles was one of general denial, together •with two affirmative defenses. The affirmative defenses basically stated that Charles could not be held liable until there was a judicial determination that Landers Seed Company was liable and in default. This was determined in Landers I. Charles’ answer to the Bank’s motion for summary judgment was based on the theory that our decision in Landers I was void. No contest existed as to factual issues. The trial court correctly gave validity to our decision, and the summary judgment entered against Charles should be affirmed.

Glen and Maxine filed answers with general denials, together with two affirmative defenses and three counterclaims. The affirmative defenses were similar to those of Charles and, because of our holding in Landers I, were without merit. The three counterclaims contained allegations of oral contract. The alleged oral contract was the subject of our decision in Landers I. Glen and Maxine contended they should be allowed to contest the contract issue because they were not parties to the Landers I appeal. They contend neither res judicata nor collateral estoppel precludes their litigating the contract issue which we decided in Landers I.

However, the defendants miss the thrust of the trial court’s decision relating to the Bank’s motion for summary judgment. Charles, Glen, and Maxine’s answers to the motion for summary judgment do not contest the facts, but attack the Landers I appellate decision, contending that it is void. The trial court judgment in the present case appears to be based on regular summary judgment analysis.

It is well established that summary judgment should be granted only when the pleadings, depositions, and admissions, together with any affidavits, show there is no genuine issue as to a material fact and that the movant is entitled to judgment as a matter of law. (Clifford-Jacobs Forging Co. v. Capital Engineering & Manufacturing Co. (1982), 107 Ill. App. 3d 29, 33, 437 N.E.2d 22, 25.) It is improper to grant such a judgment where the material evidentiary facts are in dispute or where, when the facts are undisputed, reasonable minds might draw different reasonable inferences from such facts. (National Bank v. City of Lexington (1985), 138 Ill. App. 3d 805, 808, 486 N.E.2d 967, 969.) Because it is such a drastic method of disposing of a case, summary judgment should not be employed unless the right of the moving party to such judgment is free from doubt. Murphy v. Urso (1981), 88 Ill. 2d 444, 464, 430 N.E.2d 1079, 1088.

The Bank’s motion for summary judgment sets forth the debt owing the Bank from Landers Seed Company, the guarantee executed by Charles, Lorelyn, Glen, and Maxine, the defendants’ affirmative defenses; Glen and Maxine’s three counterclaims; and the opinion in Landers I, which establishes that the affirmative defenses no longer had merit. The answers to the motion for summary judgment do not contest the facts directly, attacking the validity of the decision in Landers I instead.

The summary judgment pleadings indicate that there is no issue as to the facts. We have determined, in Landers I, that the facts that existed did not, as a matter of law, sustain a finding of an oral agreement. As a result, the trial court had no choice but to grant summary judgment as to Glen and Maxine’s counterclaims.

C

Defendants’ final argument is that the court erred in denying the request to file a third affirmative defense. This affirmative defense is based on the claim of fraud in the inducement.

The record shows the appellate court mandate was issued on November 30, 1988. On December 15, a status hearing was held. Glen and Maxine’s counsel withdrew and counsel for Landers and Charles also entered his appearance for Glen and Maxine. At that time an order was entered setting a cutoff date for all other pleadings. While the order is unclear as to the exact date for cutoff, all parties acknowledge its existence. Defendants filed their request to file the extra defense on February 17, 1989. All parties agree this was done after the cutoff date.

Section 2 — 616(a) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(a)) provides:

“At any time before final judgment amendments may be allowed on just and reasonable terms, *** changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance *** which may enable *** the defendant to make a defense ***.”

Our courts have continually acknowledged that this section is to be liberally applied so that cases will be resolved on their merits rather than on procedural technicalities. Bloom v. Landy (1979), 72 Ill. App. 3d 383, 399, 389 N.E.2d 1286, 1299.

However, a trial court has broad discretion in the allowance of amendments to pleadings. (Old Salem Chautauqua Association v. Illinois District Council of the Assembly of God (1958), 13 Ill. 2d 258, 266, 148 N.E.2d 777, 781.) The test in determining whether the discretion was properly exercised is whether it furthers the ends of justice. (Bowman v. County of Lake (1963), 29 Ill. 2d 268, 281, 193 N.E.2d 833, 840.) The ultimate efficacy of the claim and previous opportunities to assert a claim may be taken into account. (City of Des Plaines v. Pollution Control Board (1978), 60 Ill. App. 3d 995, 1002, 377 N.E.2d 114, 120.) The denial of a motion to amend will not be considered prejudicial error unless there has been a manifest abuse of the court’s discretion. Mundt v. Ragnar Benson, Inc. (1975), 61 Ill. 2d 151, 161, 335 N.E.2d 10, 16; Bowman, 29 Ill. 2d at 281, 193 N.E.2d at 840.

Defendants acknowledge their request to amend their answer occurred after the cutoff date. However, Glen and Maxine point out they were represented by different counsel until December 14, 1988. When new counsel entered his appearance, he was busy dealing with Landers’ writ of certiorari to the United States Supreme Court. They maintain counsel did not have an opportunity to review the pleadings until after that time. They also observe that the asserted defense is the same as one of their counterclaims and the Bank would not be surprised. Further, since it introduces a new question, they note this amendment would defeat the Bank’s motion for summary judgment.

The Bank responds by first noting this case commenced in 1984. The defendants filed their answer on October 3, 1984. It observes Glen and Maxine’s new counsel was counsel for Charles and Landers throughout the proceeding and was intimately familiar with the case. Therefore, it argues that it would not take new counsel long to familiarize themselves with Glen and Maxine’s case. Further, it observes the writ to the Supreme Court was filed on December 31, 1988, which still gave counsel an opportunity to comply with the deadline.

We conclude the trial court was within its discretionary limits, and the judgment of the trial court should be affirmed.

Based on appellant’s motion, our court has consolidated the appeal in appellate court case No. 4 — 90—0023 (an appeal from a turnover order of the Moultrie County court) with this previously filed case in case No. 4 — 89—0464. The issue on appeal in case No. 4 — 90— 0023 is based on the theory that our decision in Landers I was void. That issue having been determined in the negative, the trial court’s order in case No. 4 — 90—0023 must be affirmed.

No. 4 — 89—0464, Affirmed.

No. 4 — 90—0023, Affirmed.

SPITZ and STEIGMANN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    THE COUNTY OF KANE, Plaintiff-Appellant, v. F. JOHN RANDALL, the Sheriff of Kane County, et al., Defendants-Appellees (F. John Randall, as Sheriff of Kane County, Counterplaintiff-Appellant; The County of Kane, American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO, et al., Counterdefendants-Appellees).
    Second District
    Nos. 2—89—0473, 2—89—0666 cons.
    Opinion filed March 13, 1990.
    Rehearing denied April 6, 1990.

      ■ Gary V. Johnson, State’s Attorney, of Geneva, and Sheridan & Associates, of Wheaton (Gerald M. Sheridan, Jr., of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellee Illinois State Labor Relations Board.
    Cornfield & Feldman, of Chicago (Melissa J. Auerbach, of counsel), for appellees Illinois Public Employees Council No. 31, and American Federation of State, County, and Municipal Employees.
    David R. Akemann, of Elgin, for F. John Randall.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, County of Kane (County) and counterplaintiff, F. John Randall (Sheriff), appeal the trial court’s dismissal of their claim and counterclaim. We reverse the trial court and remand these causes for further proceedings.

This court has previously dealt with issues arising amongst these parties in their pursuit of a collective-bargaining agreement. (See County of Kane v. Illinois State Labor Relations Board (1988), 165 Ill. App. 3d 614.) In County of Kane we upheld the order and decision of the State Labor Relations Board (Board), which found the Comity and the Sheriff to be joint employers of certain nonpeace officer personnel in the Kane County sheriffs office. The American Federation of State, County, and Municipal Employees (Union) was certified as the exclusive bargaining agent for both the peace and nonpeace officer units of the sheriffs office.

Following this certification, the Union filed an unfair labor practice charge with the Board, contending- that the County refused to negotiate. In May 1987, the Board issued a decision ordering the County to bargain with the Union. The County’s appeal of this order was dismissed by this court after it failed to file a brief. In October 1987, the Sheriff and the County filed with the Board cross-charges of unfair labor practices against each other as to the Sheriffs peace officer unit. The Sheriff and the County disputed the right of the other to bargain exclusively with the Union over various terms and conditions of employment, including wages, sick days, vacations, insurance, overtime, seniority, promotions, and pension and retirement plans. The executive director of the Board dismissed the charges, and the full Board upheld the dismissal. In its written decision, the Board stated in part:

“At the outset, we are presented with the question of whether Section 10(a)(4) of the Illinois Public Labor Relations Act (Act), Ill. Rev. Stat. 1985, ch. 48, par. 1601 et seq., permits one employer to file charges against another employer. Section 10(a)(4) makes it an unfair labor practice for an employer to refuse to bargain collectively in good faith with a labor organization which is the exclusive representative of public employees in an appropriate unit. There is no allegation herein that either employer is refusing to bargain with AFSCME, the labor organization representing their employees. Rather, each employer contends that the other is bargaining outside the scope of its authority. The Act, however, does not establish any duty owed by employers to each other. To the extent that collective bargaining may be deemed an adversarial process, the adversaries are the employer and the labor organization, not the employers. The presumption must be made that it is in the mutual interests of the joint employers to come together and cooperate at the bargaining table. Otherwise, the entire collective bargaining process would be eviscerated.
Clearly, the joint employers’ inability to agree with each other over what aspects of the employment relationship each controls subjects them both to a violation of the Act, since it poses a serious impediment to the exclusive representative’s ability and right [emphasis in original] to bargain with these employers as one employing entity. Had the exclusive bargaining representative filed this charge, we clearly would have the authority and obligation to hear the allegations as a Section 10(a)(4) charge. Absent a charge by the exclusive bargaining representative, however, we have no authority to involve ourselves in this matter.” (Emphasis added.)

The Board also quoted in a footnote from its decision in a 1986 case, Town of Decatur:

“The parties *** must determine for themselves their bargaining obligations and strategies, based upon the statutory constraints and their previous relationship. It is up to them to determine which entity has sufficient control over which aspects of the employment relationship so as to effectively bargain concerning them. We therefore will not elaborate upon the issue, and we decline to delineate areas of responsibility. In so concluding, we do not *** intrude into the bargaining process or create additional areas of responsibility for any party.” Town of Decatur, 2 Pub. Employee Rep. (Ill.) par. 2024 n.3 (ISLRB 1986).

Following this dismissal, the County filed a four-count complaint in the circuit court seeking, alternatively, a declaratory judgment delineating the exclusive bargaining rights and responsibilities of the joint employers or a declaration that the “Illinois Public Labor Relations Act” (Ill. Rev. Stat. 1985, ch. 48, par. 1601 et seq.) is unconstitutional under either article I, section 2, or article IV, section 8(d), of the 1970 Illinois Constitution (Ill. Const. 1970, art. I, §2; art. IV, §8(d)). The complaint also sought a preliminary injunction restraining the Sheriff, the Union, and the Board from proceeding with collective bargaining or arbitration until the rights of the joint employers had been adjudicated by the court. The Sheriff filed a counterclaim seeking a declaration that the County had a mandatory duty to appropriate a sum necessary for the Sheriff to properly administer his duties and that the Sheriff has the exclusive duty to negotiate with the Union over all mandatory subjects of bargaining except those areas expressly granted to the County by statute and the aggregate amounts in three areas of supplies, equipment and services. The court dismissed the County’s complaint and the Sheriffs counterclaim for lack of jurisdiction, stating:

“And I think that [this] is really the bottom line situation that we have here. ‘The Board did not find that it had no jurisdiction over the issues raised in the charges.’ And I think from the record that that is also clear. ‘Rather, the Board specifically found that it would have jurisdiction and the responsibility to determine the respective bargaining obligations of the joint employers if a charge were filed by’ the Union ‘against the joint employers.’
The Union memo stated ‘The proper route for the County to follow would be for the County to engage in good faith bargaining with’ the Union ‘until such time as a real dispute arose,’ and here I would insert concerning this issue, ‘and then to let the State Board resolve such dispute.’
The best argument that I heard during the arguments concerning this matter was from the Union, that if this Court enters a declaratory judgment to solve what the County and the Sheriff perceived as their problem, this Court is forever entangled in the labor negotiations between the Union, the County and the Sheriff.
One of the underlying purposes of the Act that we’re dealing with here was to keep the Circuit Court out of this type of problem, and I will not take jurisdiction of that matter because I should not. The Circuit Court does not belong involved in this matter.
Accordingly, then, I will grant the motions of the Union and the Attorney General to dismiss for want of jurisdiction.”

The County’s motion for reconsideration was denied, and this appeal followed.

The first question presented for our review is whether the trial court had jurisdiction to declare the respective bargaining rights and responsibilities of the County and the Sheriff. The court, characterizing the dispute as one involving “the labor negotiations between the Union, the County and the Sheriff,” found that “one of the underlying purposes of the Act *** was to keep the Circuit Court out of this type of problem.” However, we believe that the court misdiagnosed the problem and, therefore, was in error when it refused to provide a remedy.

The Illinois Public Labor Relations Act was created “to regulate labor relations between public employers and employees.” (Ill. Rev. Stat. 1987, ch. 48, par. 1602.) “ ‘The Act provides a comprehensive system of collective bargaining for those public employees and employers who fall within its scope.’ ” (City of Decatur v. American Federation of State, County & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 364, quoting County of Kane v. Carlson (1987), 116 Ill. 2d 186, 196.) However, the dispute before us does not fall within the scope of the Act. Count I of the County’s complaint involves a dispute between the County and the Sheriff, not the County and the Union. Nowhere in its text does the Act address disputes between co-employers. The Board, in its decision, determined that it had no jurisdiction over the dispute in the absence of a charge of unfair labor practice by the Union.

Both the Board and the Union, however, contend that the court has no jurisdiction because the dispute “involves the collective bargaining process.” While this suit will in all probability affect the bargaining process, the suit would not force the court to usurp the power of the Board and improperly involve itself in that process. Both the County and the Sheriff seek a declaration of their statutory powers and responsibilities which existed prior and subsequent to the enactment of the Act. An adequate avenue of resolution must exist for a dispute between governmental bodies and officials. Since the Board found that it lacked jurisdiction at this time, the court remains the only body capable of legally resolving the problem. The Board’s position, that only it has jurisdiction, and then only if the Union charged either of the joint employers with an unfair labor practice, is untenable. Governmental bodies and officials seeking resolution of legitimate legal disputes cannot be held hostage to the whims of a third party/union.

Under the Act, public employers and exclusive representatives have the duty to “negotiate in good faith.” (Ill. Rev. Stat. 1987, ch. 48, par. 1607.) It is an unfair labor practice for an employer to refuse to bargain collectively in good faith. (Ill. Rev. Stat. 1987, ch. 48, par. 1610(a)(4).) In the absence of a declaration of their respective rights and obligations, neither the County nor the Sheriff could fulfill its duty to negotiate in good faith. Negotiating with the Union on aspects of employment over which the parties do not have statutory authority is not negotiation in good faith. Furthermore, the Board’s solution of negotiation until unfair labor practice charges are brought is without basis in the words of the Act. In the absence of clear legislative intent to the contrary, we will not force our governmental bodies and officials to violate the laws they are sworn to uphold before they can resolve a dispute amongst themselves. Good-faith collective bargaining will only occur when the parties negotiate from positions of knowledge and legal authority. The trial court may provide the parties with the statutory interpretations necessary to achieve this knowledge without infringing upon the Board’s primary jurisdiction over public labor relations.

The Union cites the case of Board of Education v. Compton (1988), 123 Ill. 2d 216, to support the proposition that the County and the Sheriff must wait for the Union to charge one or both of them with an unfair labor practice before their dispute can be resolved. Compton concerned the interpretation of the Illinois Educational Labor Relations Act (Educational Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1701 et seq.), which, together with the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1601 et seq.), was to provide “ ‘a comprehensive regulatory scheme for public sector bargaining in Illinois.’ ” (Compton, 123 Ill. 2d at 221, quoting Chicago Board of Education v. Chicago Teachers Union (1986), 142 Ill. App. 3d 527, 530.) At issue in Compton was the trial court’s jurisdiction, or lack of same, over awards obtained via the binding arbitration required under section 10(c) of the Educational Act. (Ill. Rev. Stat. 1987, ch. 48, par. 1710(c).) The Board of Education contended that, if such awards were not reviewable by the circuit court, a party would be required to commit an unfair labor practice to obtain review of an arbitrator’s award. The court, while “sympathizing] with [the Board of Education’s] uneasiness at having to commit a technical breach of the law in order to obtain review,” determined that such a requirement flowed from the structure of the Educational Act and jibed with the act’s goal of minimizing disputes and encouraging arbitration. Compton, 123 Ill. 2d at 225-26.

We find Compton to be clearly distinguishable. Compton involved a dispute between an employee and an employer, a dispute clearly covered by the act there involved. Again, the case before us involves a dispute between joint employers. This dispute is not subject to the strictures of the Act. While the legislature may find it necessary and salutary to limit the review of decisions arising under the labor relations acts, it has not so limited the parties’ actions in this case. We find no intention on the part of the legislature to tie the hands of disputatious governmental bodies or officials and require them to violate the law in order to have their legitimate dispute resolved. We, therefore, determine that the court had jurisdiction to entertain both the County’s complaint and the Sheriff’s counterclaim seeking declaratory relief.

The court also refused to rule on the constitutionality of the Act as it relates to the issue of joint employers. The County contended that the Act was unconstitutionally vague in that it failed to define the rights and duties of joint employers and that it was in derogation of prior constitutional and statutory powers of the County and the Sheriff. The court found that it had no jurisdiction over this question.

Citations are not needed for the proposition that the circuit court has jurisdiction to rule on the constitutionality of statutes passed in this State. Both the Board and the Union contend, however, that consideration of the constitutional questions presented here is barred by the County’s failure to raise the issues in prior proceedings. The doctrine of res judicata provides that “ ‘a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand, or cause of action.’ ” (Emphasis in original.) (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251, quoting People v. Kidd (1947), 398 Ill. 405, 408.) This bar operates not only against all matters actually decided in the prior action, but also to all grounds of recovery which might have been presented in the prior proceedings. Housing Authority, 101 III. 2d at 251-52.

The dispute in the case before us, that between the County and the Sheriff, is not a reargument of whether those parties are joint employers. Neither party challenges that adjudication. The dispute, involving the application of the Act, arose after certification of the parties as joint employers and after attempts at collective bargaining were begun. Thus, the dispute did not exist at the time of the prior proceedings and could not have been decided at that time. Therefore, the doctrine of res judicata does not prevent the court from considering the constitutionality of the Act.

We conclude that the trial court erroneously dismissed for lack of jurisdiction both the County’s complaint and the Sheriff’s counterclaim. On remand, the trial court shall consider both the declaratory relief sought and the constitutional questions presented.

Reversed and remanded for further proceedings.

UNYERZAGT, P.J., and REINHARD, J., concur.


author: JUSTICE SCARIANO

text:
    MARIA CRUZ et al., Plaintiffs-Appellants, v. COLUMBUS-CUNEO-CABRINI MEDICAL CENTER et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—88—0666
    Opinion filed February 20, 1990.
    Rehearing denied April 2, 1990.

      Gordon & Gordon, Ltd., of Chicago (Robert E. Gordon, of counsel), for appellants.
    Ruff, Weidenaar & Reidy, Ltd., of Chicago (Charles E. Reiter III, of counsel), for appellees Columbus-Cuneo-Cabrini Medical Center, Michael T. Feingold, and Anthony Cirrincione.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Lisa Marco Kouba, Joyce Staat Lewis, and Sonia V. Odarczenko, of counsel), for appellee Matthew Ahranjani.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiffs in this medical malpractice action appeal from an order denying their motion to vacate the dismissal of their complaint as to all but one of the defendants. The motion to dismiss was granted by a downstate judge who was temporarily substituting for the assigned trial judge; this same downstate judge was also specially assigned to hear the motion to vacate. Plaintiffs contend that the circuit court erred in assigning the motion to vacate to the downstate judge, who is claimed to have erred in holding that he had no jurisdiction to rule on the motion because it was not filed with the clerk of the court within 30 days of the entry of the judgment. We affirm the judgment of the trial court.

Plaintiffs in this action are Maria Cruz and her husband. Defendants named as parties to this appeal are Dr. Matthew Ahranjani, Columbus-Cuneo-Cabrini Medical Center, Dr. Anthony Cirrincione, and Dr. Michael Feingold. Ahranjani is represented by separate counsel; the remaining defendants are referred to collectively as “Columbus.”

Ahranjani and Columbus both filed motions to dismiss plaintiffs’ action pursuant to Supreme Court Rule 219(c) (107 Ill. 2d R. 219(c)), claiming that they had not complied with four court orders regarding outstanding discovery and the disclosure of expert witnesses. A hearing on the motion and a pretrial conference were set for July 30, 1987. Although plaintiffs’ attorney received proper notice, he did not appear at the July 30 hearing. Circuit Court Judge Michael J. Hen-shaw, of Harrisburg, who was sitting in the absence of Judge Lester Bonaguro, the assigned judge, heard defendants’ argument and granted their motion to dismiss with prejudice. The order included Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) language permitting an immediate appeal.

Plaintiffs’ attorney prepared and delivered a section 2 — 1301 motion to vacate the July 30 order to the trial judge on August 5 (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1301), and a hearing on the motion was set for August 12. While a copy of the motion was apparently sent to opposing counsel, plaintiffs concede that it was never filed with the circuit court clerk, a fact not discovered by defendants until two months later because representations had been made by plaintiffs’ attorney that a filed-stamped copy existed. At the hearing, Judge Bonaguro expressed doubt as to whether he had authority to vacate a final order entered by another judge; instead, he entered an order stating plaintiffs’ motion to vacate was entered and continued, and that the parties should brief the issue.

A second hearing on the motion to vacate was held on September 14, after which Judge Bonaguro entered an order which stated: “This Court finds that it does not have jurisdiction to hear this motion because the order of July 30, 1987, was entered by Judge Hen-shaw who was sitting in his stead. This Court [is] further recommending that this motion be assigned to Judge Henshaw.” The motion was continued for a hearing before the assignment judge, who on October 20, 1987, transferred the motion to Judge Henshaw. It was shortly after this date that defendants learned there was no filed-stamped copy of the section 2 — 1301 motion.

After an additional round of briefs, a hearing was held before Judge Henshaw on November 9, 1987. Both Ahranjani and Columbus contended in their briefs that the court had no jurisdiction to hear the section 2 — 1301 motion because it had not been filed with the clerk of the court within 30 days of the July 30 judgment and, in the alternative, argued the merits of the judgment. Judge Henshaw entered an order on January 29, 1988, denying the motion for lack of jurisdiction. A notice of appeal was filed on February 24,1988.

I

Plaintiffs argue that Judge Bonaguro erred in transferring this case to Judge Henshaw for a ruling on their section 2 — 1301 motion to vacate. They cite several cases holding that an interlocutory order can be amended or revised at any time prior to entry of the final judgment, and that the order can be reviewed by a judge other than the one who initially entered the order. (Balciunas v. Duff (1983), 94 Ill. 2d 176, 446 N.E.2d 242; Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217; Richichi v. City of Chicago (1964), 49 Ill. App. 2d 320, 199 N.E.2d 652.) Plaintiffs also assert that a motion to vacate an ex parte order or an order entered in the absence of the affected party should be treated in the same way as an interlocutory order, and that since their attorney was not present at the July 30, 1987, hearing, Judge Bonaguro should properly have reviewed the order entered on July 30 by Judge Henshaw.

Plaintiffs cite no case law in support of this engaging analysis. Quite to the contrary, however, our supreme court has recently held that where a ruling is immediately appealable, rather than interlocutory in nature, review of the order by a different judge is improper. (People v. DeJesus (1989), 127 Ill. 2d 486, 537 N.E.2d 800.) A similar conclusion was reached in People ex rel. Kelly, Ketting, Furth, Inc. v. Epstein (1974), 61 Ill. 2d 229, 231, 335 N.E.2d 430, 431, where the court noted: “Review of the orders of one judge by another judge of the same court in the same case is neither consistent with the orderly administration of justice nor with our judicial system.” (See also Peoples Gas Light & Coke Co. v. Austin (1986), 147 Ill. App. 3d 26, 497 N.E.2d 790 (distinguishing between review of final judgment and interlocutory orders).) Plaintiffs have not in any way distinguished this line of cases from theirs.

The parties here do not dispute that the order entered by Judge Henshaw on July 30, which dismissed the complaint as to all but one of the defendants for failure to comply with court orders regarding discovery, was a final order due to the inclusion of the Rule 304(a) language. Consequently, the motion to vacate was properly transferred to Judge Henshaw, the judge who made the initial ruling. We find plaintiffs’ argument is without merit.

II

Plaintiffs also argue that Judge Henshaw erred in holding that the circuit court lost jurisdiction over the case because their motion was not received and stamped by the clerk of the court within 30 days after the judgment was entered. They rely primarily on Okumura v. Nisei Bowlium, Inc. (1976), 43 Ill. App. 3d 753, 357 N.E.2d 187, where the appellate court reversed the trial court’s grant of defendants’ motion to vacate a default judgment pursuant to section 72 of the Civil Practice Act (now Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). The section 72 petition was never filed with the clerk of the circuit court and was merely presented to the judge and opposing counsel at a hearing. The appellate court found that the trial court erred because it “considered a document which had not been filed, received in evidence, nor otherwise made a part of the record.” Okumura, 43 Ill. App. 3d at 756, 357 N.E.2d at 190.

Plaintiffs argue that this language sets up a three-part test, and that a motion can be considered by the court as long as it is “otherwise made a part of the record,” despite the fact that the motion has not been filed or received in evidence. Plaintiffs point to the fact that orders were entered on August 12, September 14, and October 20, 1987, which refer specifically to their motion to vacate. Further, briefs on the jurisdictional issue argued before Judge Bonaguro on September 14, which were properly filed with the clerk of the court, specifically referred to the motion. Plaintiffs assert that these filings incorporated the motion in such a way that it became a part of the official record.

Plaintiffs take undue comfort from their analysis of Oku-mura. In focusing on the language quoted above, they inexplicably ignore the following significant passage from the same decision:

“Insofar as [a section 72] petition is considered a pleading in a new action it must be filed as other pleadings in the manner provided by the Civil Practice Act. [Citation.] To constitute filing, the document must pass into the exclusive custody and control of the clerk to be made part of the court records. (Hamilton v. Beardslee (1869), 51 Ill. 478.) A document not properly a part of the trial court proceedings is dehors the record and may not be considered by this court on review. (Albert v. Albert (1950), 340 Ill. App. 582, 92 N.E.2d 491.)” (43 Ill. App. 3d at 755, 357 N.E.2d at 189-90.)

The language relied upon by plaintiffs does not persuade us that Okumura rejects the exclusive custody rule. Indeed, Okumura, decided by this court, obviously recognizes, as it must, the ancient and authoritative pedigree of the rule in its citation of the Hamilton case. Further and continued support for the application of the exclusive custody rule to this case is to be found in the language of Supreme Court Rule 104(b), which provides: “Pleadings subsequent to the complaint, written motions, and other papers required to be filed shall be filed with the clerk ***.” (Emphasis added.) 107 Ill. 2d R. 104(b).

Nor has the exclusive custody rule been limited to section 2— 1401 petitions, which initiate a new proceeding distinct from the original action (Manning v. Meier (1983), 114 Ill. App. 3d 835, 449 N.E.2d 560), but has also been applied to section 2 — 1301 motions (Fairfax Family Fund, Inc. v. Couch (1982), 103 Ill. App. 3d 492, 431 N.E.2d 461; Dangeles v. Marcus (1978), 57 Ill. App. 3d 662, 373 N.E.2d 645).

To be sure, some relatively minor deviations from the exclusive custody rule are permitted. For example, the Illinois Supreme Court has recently held that, for purposes of meeting the 30-day limitations period, a notice of appeal is considered filed when it is mailed, rather than when it is received by the circuit court clerk. (Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, 533 N.E.2d 1072.) However, such exceptions are clearly much more limited than the approach plaintiffs advance here, one which would virtually eliminate the well-established and well-defined exclusive custody rule.

Even if a section 2 — 1301 motion to vacate is not filed within the 30-day limitations period, and the trial court consequently loses jurisdiction over the matter, the parties can revest the court with jurisdiction if they actively participate without objection in further proceedings inconsistent with the prior judgment. (People v. Kaeding (1983), 98 Ill. 2d 237, 456 N.E.2d 11; Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 97 N.E.2d 877; Gentile v. Hansen (1984), 131 Ill. App. 3d 250, 475 N.E.2d 894; Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 424 N.E.2d 911.) A nonmovant who argues only the merits of the judgment revests the trial court with jurisdiction (Ridgely, 409 Ill. 46, 97 N.E.2d 877); a nonmovant who contests the trial court’s jurisdiction does not (Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610).

In this case, it is true that the jurisdictional defect caused by the failure to file a timely section 2 — 1301 motion was not raised at the August 12, 1987, hearing before Judge Bonaguro. However, this should not surprise anyone in light of the fact that defendants did not realize on August 12 that a motion to vacate had not been filed with the clerk of the court. Defendants assert, and plaintiffs do not dispute, that as late as October 29, plaintiffs’ counsel represented that he would provide defendants with a filed-stamped copy of the motion. After the facts were discovered, defendants’ memoranda of law submitted to Judge Henshaw made clear that they were not conceding the jurisdiction issue, and addressed the merits of the judgment only as an alternative argument.

On these facts, we find the Sears decision controls. Judge Hen-shaw properly held that the trial court had no jurisdiction to review the July 30, 1987, order; proceedings which took place in the trial court after that date were insufficient to revest the court with jurisdiction.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

BILANDIC and HARTMAN, JJ., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER BRADFORD, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—1358
    Opinion filed February 23, 1990.
    Randolph N. Stone, Public Defender, of Chicago (Thomas N. Swital, Assistant Public Defender, of counsel), for appellant.

      Cecil A. Partee, State’s Attorney, of Chicago (Gael O’Brien, Special Assistant State’s Attorney, and Inge Fryklund and Patrick J. Finley, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial, Walter Bradford was convicted of attempt (murder) (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 4) in the stabbing of Bethell James. Bradford was sentenced to six years’ imprisonment and three years’ mandatory supervised release.

We affirm.

The incident at issue occurred on Sunday, October 6, 1985.

Bethell James, the complainant, testified that at approximately 1:30 p.m. on that day, he was watching a “dice game” in the 1300 block of Wentworth Avenue in Chicago, while sharing a pint bottle of wine with someone, when a fight began between defendant and Larry Stewart. James stated he broke up the fight by pulling the defendant off of Stewart. Both defendant and James temporarily left the scene. James testified he returned approximately 20 minutes later, at which time he saw defendant coming toward him from a parking lot across the street. James stated defendant told him, “Don’t ever stop me from fighting,” and chased after James. In response to the State’s question regarding what the defendant did after catching up to him, James stated, “Well, I was strueken [sic]. I didn’t see what I was strucken [sic] with, but I was struck in the arm and in my stomach.” James indicated for the court how he had attempted to defend himself. James stated he did not see what defendant had in his hand at the time and did not know that he had been stabbed. James stated a man named Tim Walker witnessed the incident and drove James to St. James Hospital for treatment.

James admitted that, on the day of the incident, he was carrying a can of mace in a left inner pocket of his coat. James testified, however, that he had made no attempt to reach for it when the defendant had approached him and did not have anything in his hands when he was stabbed. James also admitted that he had begun drinking alcohol at 11 a.m. or 11:30 a.m. on that day. James denied that, when at the hospital, he was too intoxicated to sign a hospital consent form.

Dr. Amball K. Patel testified on defendant’s behalf pursuant to a stipulation that Patel was qualified to testify as an expert and that Patel was James’ attending physician in the emergency room at St. James Hospital. Patel testified that, prior to surgery, he examined James for approximately 15 to 20 minutes. Patel stated James was intoxicated and, because Patel did not believe James was able to make a judgment as to consent, James’ father signed the hospital consent form. Patel stated medical records indicated James’ blood-alcohol level was .481.

On cross-examination, Patel stated that, normally, a person with a blood-alcohol level of .300 would be comatose and unable to respond verbally. Further, a person with a blood-alcohol level of .481 would be near death. Patel admitted James was able to sit up and talk to Patel and that Patel had no trouble understanding James. However, Patel testified, James only answered some of his questions and was uncooperative. He stated James was in pain and thrashed about.

As to James’ wounds, Patel stated that, internally, the abdominal stab wound was three to four inches in length although, externally, it appeared smaller. Patel indicated the wound to James’ forearm was complicated by a severed nerve.

Baron Bradford, a cousin of the defendant, testified he was with the defendant on the day of the incident. Baron stated that shortly after defendant and Stewart started fighting, James “[came] out of nowhere” and tackled the defendant. Baron stated James and defendant then began to struggle and Baron separated them. Baron stated he and the defendant thereafter sat in a car for about 25 minutes near where the fight occurred. When James returned to the scene, Baron and defendant were standing out of the car. Baron stated defendant walked over to where James was and the two became involved in a second scuffle. Baron testified that, when he attempted to intervene, he saw that James had reached inside his coat and “the next thing [he] knew, [James] was cut.” Baron testified that before James put his hand in his pocket, defendant did not brandish a weapon.

On cross-examination, Baron admitted that he did not tell the police what he saw after learning that his cousin had been arrested. Baron also stated that, while he and the defendant were sitting in the car after defendant’s fight with Stewart, defendant indicated he was angered at James for breaking up that fight and also because, in breaking up the fight, James had hurt defendant’s hip. Lastly, although Baron testified James had been drinking, he stated he “had no idea” whether James was intoxicated or not.

In his own testimony, defendant gave the same account as Baron Bradford regarding defendant’s initial fight with Stewart, James’ intervention, James’ return to the scene, the ensuing struggle with James, and James’ reach inside his coat with his hand when Baron attempted to intervene. Defendant stated James reached into his coat with his right hand. At that point, defendant stated, he panicked and “rushed” James with a knife-like “scraper” because, he stated, he knew James “to carry *** weapons and what not” and that James might have had one on his person at the time. Defendant explained he kept the instrument “on his belt buckle” for use in his employment as a janitor at a nightclub to scrape gum off of the floor. Defendant stated he displayed the “scraper” after James put his hand in his coat. After the stabbing, defendant stated, he heard something metallic hit the ground. Defendant stated James “took off running” but then turned around and ran back at defendant. A second struggle between them ensued. Baron eventually intervened successfully.

On cross-examination, defendant admitted being angered at James for injuring defendant’s hip. Defendant also admitted that he had approached James and initiated the altercation with James when James had returned to the scene after intervening in the fight between defendant and Stewart. Defendant further admitted that he never actually saw James grab anything inside his coat. When defendant came at James, defendant stated, James raised up his left hand in defense. Defendant stated he took hold of James’ right hand which, defendant stated, was “caught up in his jacket.” Defendant testified that when James got his hand out of his pocket, he heard whatever it was that James had in his hand hit the ground; however, he did not look at the ground to see what the item was. Defendant testified that he could not remember whether he stabbed James in the abdomen before or after he heard the item hit the ground.

Opinion

On appeal, defendant first argues that the testimony of Bethell James was so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. Specifically, defendant directs our attention to Patel’s testimony concerning James’ state of intoxication, contending that that evidence undermines the reliability of James’ testimony. Defendant also asserts Patel’s testimony that James’ father signed the hospital consent form established that James’ testimony regarding the consent form was untruthful.

Defendant’s contention relates to James’ credibility, the assessment of which is properly made only by the trier of fact, who has had the opportunity to view, first hand, that testimony at trial. (People v. Henson (1963), 29 Ill. 2d 210, 193 N.E.2d 777.) The trial judge’s assessment in that respect is no more assailable where the witness is one who was allegedly drunk. (People v. Vandiver (1984), 127 Ill. App. 3d 63, 67, 468 N.E.2d 454, 457.) Moreover, after carefully reviewing all of the evidence in the light most favorable to the prosecution (see People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461), we do not believe the trial judge’s evaluation of James’ credibility was so unreasonable or improbable as to raise a reasonable doubt of defendant’s guilt (see People v. Neukom (1959), 16 Ill. 2d 340, 158 N.E.2d 53, rev’d on other grounds, People v. Davis (1976), 65 Ill. 2d 157, 357 N.E.2d 792). In contrast to Patel’s testimony, neither defendant’s own testimony, nor Baron Bradford’s, indicates defendant was so intoxicated as to be incapable of perceiving the events which took place on the day of the incident or of remembering them. In fact, their testimony substantially corroborates James’ testimony as to the sequence of events.

Defendant also contends the evidence supports, at most, only a conviction for aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4) because defendant purportedly stabbed James in self-defense. Defendant bases that contention on the extension of his argument above that the only credible account of the circumstances of the stabbing was given by the defendant and Baron Bradford.

We do not agree. The trial judge noted that the only significant conflict in the evidence was whether James reached into his coat pocket during the fight with the defendant such as to support defendant’s theory of defense. In resolving that conflict, the trial judge determined James to be credible and defendant’s use of force unjustified.

The specific intent required for the offense of attempted murder may be shown by the character of the assault, whether a dangerous weapon was used and other surrounding circumstances. (People v. Treadway (1985), 138 Ill. App. 3d 899, 486 N.E.2d 929.) By defendant’s own account, the defendant initiated the altercation with James after expressing anger over James’ intervention in a fight and for causing injury to defendant’s hip. Defendant pursued James and used a knife-life instrument to stab James twice. Defendant’s acts were sufficient to cause a four-inch internal abdominal wound and to sever a nerve in James’ arm. Based on those facts, we cannot conclude that the trial judge’s inference of defendant’s intent lacks support in the record.

We therefore affirm the judgment of the circuit court.

Affirmed.

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


author: JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRUCE PARKER, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—2413
    Opinion filed February 23, 1990.

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

delivered the opinion of the court:

Defendant Bruce Parker was convicted of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(2)), felony murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(3)), and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2) for actions against Louis Russell. He was convicted of attempted murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4, 9 — 1), armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2(a)), and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2) for actions against Linda Wiggins. After conviction, the court sentenced him to 20 years on the two murder counts and six years on each of the other four counts, the sentences to run concurrently with credit for time served. The court also entered a finding but no judgment for aggravated battery (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 4(a), (b)(1)) against Linda Wiggins.

On appeal, Parker raises the issues of: whether the trial court committed reversible error when (1) it found Parker guilty of murder even though he held a reasonable belief that he had acted in self-defense; (2) it found Parker guilty of felony murder based on the theory that he was a participant in a planned armed robbery; (3) it found Parker guilty of attempted murder and armed robbery based on the theory that he was responsible for his codefendant’s actions; (4) it restricted Parker’s testimony about his state of mind before he killed Russell; (5) it convicted Parker of both murder and felony murder even though both were based on a single act involving a single victim; (6) it convicted Parker of two counts of armed violence even though Parker was also convicted of the underlying felonies of murder and attempted murder; and (7) whether the mittimus for attempted murder must be amended to conform to the actual sentence imposed.

For the reasons given below, we affirm the judgments for murder, attempted murder, and armed robbery, but vacate the findings and judgments for felony murder and both counts of armed violence. We remand the case to the trial court to amend the mittimus for attempted murder. We also vacate the finding of aggravated battery.

This appeal involves convictions for actions that occurred on February 7, 1986. On that date Parker went to the home of William Lang at 726 N. Austin, Oak Park, to buy one-sixteenth of an ounce of cocaine. About two hours later, Linda Wiggins and a companion, Louis “Junior” Russell, arrived with the cocaine. Accounts differ as to the details about what happened next, but everyone agrees that Parker picked up a gun and shot Russell in the head at least once. Then Lang used the gun to shoot Wiggins three times.

In defense to the murder charge, Parker claimed self-defense or, in the alternative, action in the unreasonable belief that self-defense was necessary, which would reduce the charge to voluntary manslaughter. Parker also presented four character witnesses who testified about his dependability on the job and his reputation for being truthful and law abiding.

Parker himself testified that he arrived at Lang’s sometime before 6 p.m. Lang did not have the drugs but expected delivery soon. Parker agreed to wait because he was planning a party and wanted to have cocaine available for his friends. He also testified that the idea of waiting made him “nervous.” When Parker began to explain why he was nervous, the State objected, and the trial court sustained this objection. Parker continued his testimony, stating that he had only bought from Lang once before.

Finally, a woman arrived accompanied by a man. Lang introduced them to Parker as Linda Wiggins and a friend. The man kept his hand in his pocket and refused to shake hands with Parker. Parker noticed that Wiggins was sweating and looked “a little nervous.” Lang then led the party to his dining room. There, Parker stood while Wiggins and the man sat. The man sat down by moving his chair with his feet and still did not take his hand from his pocket. Parker noticed a gun on the bar nearby. When Wiggins asked for water, Parker got her a glass. After that, Lang took a sample of drugs into another room and returned to report it “wasn’t coming back too well.” Parker assumed the comment meant that the drugs did not meet Lang’s expectation for quality. Wiggins told Lang to get a scale. Parker then said he wanted to cancel his small order. Wiggins objected that if Lang cancelled the main order from her, something would happen to him.

At this point in the testimony, the State raised a hearsay objection. The court allowed Parker to continue, however, on the grounds that he was testifying about his state of mind prior to the shooting of Louis Russell.

Parker testified further that Lang left the room, possibly to get a scale. Parker called after Lang: “Well, I don’t want any of it and I’m not going to buy it.” Wiggins looked at Russell and said, “Fuck that, Junior.” Then Russell, who had been sitting the entire time with one hand in his pocket, started to stand, grabbed the bottom of his jacket with his free hand, and began to pull his hand out of his pocket. At this point in testimony, the following was said:

“MR. PETERS [Defense Counsel]: And what did you think was about to happen[?]
MS. CALLUM [Assistant State’s Attorney]: Objection, your Honor.
THE COURT: Sustained.
Q. What did you do then?
A. Well when he jumped up and grabbed the bottom of his coat I had thought he had a gun out of the pocket because he never removed his hand from the pocket. I snatched the gun off the bar and I fired it.”

Parker testified further that Lang ran over and said, “You going to have to finish him now.” Parker replied, “I can’t do that.” So Lang took the gun, shot Russell in the head and shot Wiggins three times. Parker left the room and waited in the apartment for about 20 minutes. Next he went out, got his van, and pulled up to the stairwell. He could see Lang and another man bringing Russell’s body down the stairs. At that point, Parker saw a police officer farther down the alley. So Parker slid open the van door and fled on foot. The officer followed and arrested him.

Linda Wiggins testified that she was the friend of a cocaine dealer who had authorized her to sell for him in his absence. About 4:45 that day, Wiggins was at home freebasing when she got a call from Lang on her friend’s beeper. Lang wanted to buy one ounce for $1,300 or $1,500. Wiggins told him the price would be $1,800. Lang stated he would go to the bank for more money and call her again when he got back. She continued using cocaine until 6 or 6:30. During this time, Louis Russell arrived. He was a retarded man and not a drughiser. Wiggins took Russell with her to pick up the drugs from the dealer’s apartment and then proceeded to Lang’s.

Wiggins testified further that she and Russell sat in the Lang dining room while Lang left the room. Lang returned to say he was having trouble with his scale; but, he wanted Wiggins to “be cool” and remain seated. Wiggins and Russell remained in the dining room, and each smoked a cigarette. Parker went to get Wiggins some water. After he returned, he stood by the bar and pointed the gun at Russell’s head. According to Wiggins, Russell was still smoking a cigarette when Parker shot him in the head at least once.

Lang returned immediately. Then Parker passed him the gun, and he shot Wiggins twice. Wiggins fell to the floor facedown. She heard someone empty her purse on the table. Two sets of feet were at the table, but Wiggins did not know which man actually emptied her purse. A voice said, “We got about two or three ounces of cocaine,” and “Go to the store and get the pipe.” Shortly after that Lang turned Wiggins’ body over and said, “[T]his bitch ain’t dead. Turn up the music.” According to Wiggins, Parker “went over and cut up the music.” Then Lang shot Wiggins in the head. Both men left the room. A few minutes later, two people returned. Wiggins had her eyes closed, but recognized the two people as Parker and Lang. One said, “Man, this bitch ain’t dead yet.” Wiggins recognized Lang’s voice in reply: “The bitch is going to die. I shot her in the head.” Someone wiped blood from the floor and placed a towel under Wiggins’ head. Then Wiggins got up and jumped out the second-story window. She did not take her purse, the cocaine, or any other belongings with her. After landing, Wiggins crossed Austin Avenue into Chicago and found someone to call the police.

Through stipulations and testimony, the State presented the following facts. Parker had no drugs or weapons when arrested. His open van was parked in the alley behind Lang’s apartment, about two to four feet from Russell’s body. In the Lang apartment, the police found two guns, ammunition, drugs, razors, and a bong for smoking drugs. Lang was arrested in the apartment of a neighbor on the first floor. At that time, he had drugs with him. Later the neighbor called the police to say she had found a purse, which she had seen Lang bring into the apartment, and a beeper. Both were identified as belonging to Wiggins. An autopsy of Russell revealed that he died from “multiple gunshot wounds” after two shots to the head, either of which could have killed him.

The State also presented the testimony of Assistant State’s Attorney Colin Simpson. He spoke to Parker at about 2:45 a.m. on February 8, 1986. In that conversation, Parker stated there were two guns on the bar, not one as he testified in court. When Simpson asked Parker if he had money to buy the drugs, Parker admitted that he did not have the money; Lang had money, but not nearly enough to buy an ounce of cocaine. When Simpson asked if Parker and Lang had planned “a drug ripoff,” Parker answered yes. On cross-examination, Simpson admitted that the remarks about the “drug ripoff” were not in his typed notes on the conversation. Furthermore, Oak Park police detective Zielke, who was present during the interview, did not recall the remarks about a ripoff or have any reference to these remarks in his notes.

At the end of the trial, the court reviewed the evidence and found:

“I have substantial doubts that the defendants between them had sufficient funds to make the purchase. *** But I don’t believe that they had that kind of money.
Now, Linda Wiggins didn’t say anything about Louis Russell standing up. Mr. Parker testified that Louis Russell had his hand in his pocket from the time he entered the apartment, that he stood up with his hands still in his pockets at which time Mr. Parker believed that Louis Russell had a weapon and shot in self-defense.
Linda Wiggins testified that the boy had a speech defect. I don’t know whether he talked to Mr. Parker or Mr. Lang at any time. She said he was slow, that he went to a special school. *** [T]o adopt the theory of self-defense, the Court would have to conclude that this young man with those physical handicaps gave the impression that he was standing up or even if he was not standing up, that he was with his hand in his pocket he was going to pull a weapon.
*** [F]or a Court to believe that he posed such a threat I think goes beyond what the evidence in this case would indicate.
I have to conclude that this was not a case of voluntary manslaughter. This was not a case of self-defense. This was a case of murder and it was murder in the course of a felony.”

A

The first four issues involve the sufficiency of evidence. For such issues, “the relevant question 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 461, 472, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.) Furthermore, “[o]nce a defendant has been found guilty of the crime charged, the factfinder’s role as the weigher of the evidence is preserved through a legal conclusion that upon judicial review all the evidence is to be considered in the light most favorable to the prosecution.” (Emphasis in original.) People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, quoting Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789.

I

Parker first contends that this court must reverse his conviction for murder because the State failed to prove he acted without a reasonable belief that he needed to shoot Russell in self-defense. In the alternative, Parker argues that even an unreasonable belief in the need for self-defense would reduce the charge to voluntary manslaughter. Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2(b).

The Illinois statute on self-defense states:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.” (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 1.)

(See also People v. White (1980), 87 Ill. App. 3d 321, 322-23, 409 N.E.2d 73, 74.) “[Self-defense] is an affirmative defense.” (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 14.) When a defendant raises an affirmative defense, the “State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue.” Ill. Rev. Stat. 1987, ch. 38, par. 3 — 2(b).

Killing in self-defense is justified where the following elements are present: (1) force has been threatened against a person; (2) the threatened person is not an aggressor; (3) the danger of harm is imminent; (4) the force threatened is unlawful; and (5) the defendant must reasonably believe that danger exists, countering it requires force, and the force required is the kind and amount of force used by defendant. (People v. Kyles (1980), 91 Ill. App. 3d 1019, 1021-22, 415 N.E.2d 499, 501.) A defendant may act in self-defense, even if his belief is erroneous, as long as the error is reasonable. White, 87 Ill. App. 3d at 323, 409 N.E.2d at 74.

In the alternative, Parker argues that if he held an unreasonable belief in the need for self-defense, then the appropriate charge would be voluntary manslaughter. The Illinois statute at the time of the offense provided:

“(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.” (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2(b).)

Thus, voluntary manslaughter may be viewed as an imperfect claim of self-defense. (People v. Monigan (1981), 97 Ill. App. 3d 885, 889, 423 N.E.2d 546, 549.) If the defendant did have a belief in the need for self-defense, but that belief was an unreasonable one, then the charge should be reduced from murder to voluntary manslaughter. People v. O’Neal (1984), 104 Ill. 2d 399, 405-06, 472 N.E.2d 441, 443-44.

The testimony against Parker on this issue came from Linda Wiggins. Parker cites cases to the effect that the testimony of addicts must be scrutinized with caution. (See, e.g., People v. Rollins (1982), 108 Ill. App. 3d 480, 494, 438 N.E.2d 1322, 1328.) Nonetheless, issues concerning the credibility of witnesses are for the trier of fact to decide. People v. Mosley (1979), 68 Ill. App. 3d 721, 725, 386 N.E.2d 545, 548.

Parker testified that during the drug deal he, Wiggins and Russell sat in the dining room. Wiggins was sweating and looked nervous. Russell kept one hand in his jacket pocket and even refused to shake hands. After Lang raised questions about the quality of the drugs, Wiggins objected that Lang would have to buy or something would happen to him. When Parker declared that he no longer wanted to buy, Wiggins said to her friend, “Fuck that, Junior.” According to Parker, Russell then started to stand, grabbed the bottom of his jacket, and began to pull out his hand. Parker thought that Russell had a gun. He grabbed a gun from the nearby bar and shot Russell in the head. Wiggins testified that she and Russell sat in the dining room smoking cigarettes. Lang told her to “be cool” and remain seated. She asked Parker for a glass of water. Shortly after Parker returned with the water, he pointed a gun at Russell’s head. Russell was still smoking and seated in a chair. Parker fired one or two shots at Russell.

In this case, the trier of fact had to evaluate the credibility of two witnesses with contradictory testimony. The court knew that Wiggins had been freebasing cocaine on the day of the shooting. Nonetheless, the court weighed the credibility of both witnesses and believed Wiggins. The court also acknowledged that a handicapped man like Russell might have a peculiar habit like keeping his hand in his pocket. But without evidence of a more substantial threat, the court would not accept this action as a basis for a reasonable belief in the need for self-defense.

The court did not find that Parker had even an unreasonable belief in the need for self-defense which would reduce the charge to' voluntary manslaughter.

In sum, the evidence, viewed in the light most favorable to the prosecution, does allow a rational trier of fact to find that Parker did not act with a belief, reasonable or unreasonable, in the need for self-defense. Therefore, we affirm the trial court’s finding of murder against Parker for the shooting of Louis Russell.

II

Parker contends as a second issue that this court must reverse his conviction for felony murder because the State failed to prove he participated with Lang in the armed robbery of Wiggins. We need not consider this issue, however, because we vacate the conviction for felony murder for reasons discussed below in issue five.

III

In Parker’s third issue, he claims that this court must reverse his conviction for attempted murder and armed robbery because the State did not present sufficient evidence that he was accountable for Lang’s actions. Under Illinois statute:

“A person is legally accountable for the conduct of another when:
(c) 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. 1987, ch. 38, par. 5 — 2(c).

Defendant notes that intent is one of the elements of this offense. (People v. Brumbeloe (1968), 97 Ill. App. 2d 370, 377-78, 240 N.E.2d 150, 154.) Thus, Parker argues, he cannot be accountable for Lang’s subsequent actions because Lang took the gun away after Parker refused to shoot Russell a second time. The State argues that it has met its burden of showing intent if it showed either a common design or a community of purpose. (People v. Hill (1977), 53 Ill. App. 3d 280, 284, 368 N.E.2d 714, 717.) Accountability will be upheld when one person engaged in an assault and the other encouraged it by his participation. Hill, 53 Ill. App. 3d at 284, 368 N.E.2d at 717.

Parker admitted a common plan to rob Wiggins during his conversation with Assistant State’s Attorney Simpson. Wiggins testified that two people opened her purse after she had been shot. One said, “We got about two or three ounces of cocaine” and “Go to the store and get the pipe.” Later Lang turned Wiggins’ body over and said, “[T]his bitch ain’t dead. Turn up the music.” After Parker increased the volume, Lang shot Wiggins in the head.

In sum, a rational trier of fact could find that Parker intended to help Lang during the drug robbery and shooting of Linda Wiggins. Therefore, we affirm Parker’s conviction for attempted murder and armed robbery.

IV

As the fourth issue, Parker argues that this court must reverse his conviction for murder because the court sustained two objections while he was testifying about his state of mind. Under Illinois statute, a defendant who pleads self-defense to a murder charge must claim that he had a reasonable belief that deadly force was necessary. (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 1.) In addition, a defendant who pleads guilty to voluntary manslaughter must claim an unreasonable belief in the need for deadly force. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2(b).) (See the discussion under issue one above.) Thus, Parker’s state of mind was a material issue for both his affirmative defense of self-defense and the alternative defense that he only committed voluntary manslaughter.

Parker argues that where the intention, motive or belief of a defendant is an issue in a criminal case, courts must allow the accused to testify on that point. (People v. Biella (1940), 374 Ill. 87, 89, 28 N.E.2d 111, 112.) When self-defense is an element in an issue in a murder case, failing to allow the defendant to testify about his state of mind is reversible error if the excluded testimony is essential to the defendant’s claim. People v. Kline (1980), 90 Ill. App. 3d 1008, 1014-15, 414 N.E.2d 141, 146.

The State does not contest the admissibility of evidence about Parker’s state of mind, but contends that such evidence was presented at trial in spite of the two exclusions at issue here.

Although we find error, we consider it harmless and not a basis for reversal. Harmless error is a “technical violation of a rule of evidence not considered a sufficient basis for reversal because the admission or exclusion did not affect a substantial right of a party.” (People v. Demeron (1987), 153 Ill. App. 3d 440, 446, 505 N.E.2d 1222, 1226.) This kind of error may be disregarded. (107 Ill. 2d R. 615(a).) One test for harmless error is “whether the evidence is cumulative or merely duplicates properly admitted evidence.” People v. Wilkerson (1981), 87 Ill. 2d 151, 157, 429 N.E.2d 526, 528.

The first exclusion barred Parker from explaining why he felt “nervous” at the prospect of waiting for a drug dealer in Lang’s apartment. However, even, though Parker was not allowed to detail the reasons for his nervousness, the fact that he was nervous did get into the record. The second occurred when Parker described the scene in Lang’s dining room just before he shot Russell. The court would not let him answer the question, “What did you think was about to happen?” However, the crucial content of that answer appeared in the answer to the next question when Parker explained that he thought Russell was removing a gun from his pocket. Furthermore, the court had allowed Parker to describe the conversation between himself, Wiggins, and Lang just prior to the shooting. When the State raised a hearsay objection, the court overruled it on the grounds that Parker was really testifying about his state of mind prior to shooting Russell.

In sum, the court incorrectly excluded answers to two specific questions about Parker’s state of mind. Nonetheless, since the court did allow Parker to give both direct and circumstantial evidence on this issue, the excluded evidence was merely cumulative. Furthermore, the court showed its awareness of this issue when it allowed evidence in over the State’s hearsay objection specifically because that evidence was indicative of Parker’s state of mind. Thus, the two exclusions did not deprive Parker of a fair trial and constitute only harmless error.

B

The State concedes that defendant should prevail on the last three issues.

V

Parker contends as a fifth issue that this court must vacate his conviction for either murder or felony murder since he was convicted of both crimes for the same acts against the same victim.

Parker was convicted on two counts of murder, under sections 9 — 1(a)(2) and 9 — 1(a)(3), respectively. (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(2), (a)(3).) In cases where there was only one death but two or more convictions for murder, a reviewing court must vacate all but one conviction and impose the penalty for the most serious one. (People v. Mack (1984), 105 Ill. 2d 103, 137, 473 N.E.2d 880, 898.) If a vacated conviction will not have a bearing on the sentence, it is not necessary to remand for resentencing. See, e.g., People v. Einstein (1982), 106 Ill. App. 3d 526, 536-37, 435 N.E.2d 1257, 1265.

In this case, the State has asked this court to vacate the felony murder, but offers no reason for this choice. The rule under Mack requires the court to impose the penalty for the more serious offense. (Mack, 105 Ill. 2d at 137, 473 N.E.2d at 898.) Under Illinois statute, the sentence is the same for either murder or felony murder. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(1).) Like the case here, Mack involved murder charges with the same statutory penalty. The Mack court affirmed the conviction for intentionally and knowingly killing the victim because the intent for that murder involved a more culpable mental state than either shooting with the probability of causing a death or shooting in the course of an armed robbery. Mack, 105 Ill. 2d at 137, 473 N.E.2d at 898.

In this case, Parker shot Russell with the knowledge that he might cause death or great bodily harm. That action required a more culpable mental state relative to the killing than simply being part of a felony in the course of which a victim might be killed. Therefore, we vacate the conviction for felony murder. Furthermore, since Parker’s 20-year sentence was the minimum for either conviction (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—l(l)(a)), we need not remand the cause for resentencing.

VI

Parker contends as his sixth issue that this court must vacate his conviction for armed violence because a trial court may not impose multiple convictions for both armed violence and the underlying felony where a single physical act is the basis for both charges. (People v. Payne (1983), 98 Ill. 2d 38, 54-55, 456 N.E.2d 44, 48; People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477, 478-79.) If found guilty of both, a defendant can be convicted and sentenced only for the more serious charge. People v. Smith (1984), 127 Ill. App. 3d 622, 635, 469 N.E.2d 634, 645.

The trial court convicted Parker on two counts of armed violence based on the same acts upon which it also convicted him of murder and attempted murder. Therefore, the convictions for armed violence are vacated.

VII

As his seventh issue, Parker claims that the mittimus for attempted murder must be amended so it will conform to the sentence imposed by the trial court. (See, e.g., People v. Tackett (1986), 150 Ill. App. 3d 406, 420-21, 501 N.E.2d 891, 901.) As the sentence imposed by the trial court was six years, the mittimus should be amended accordingly.

C

For these reasons, we affirm the judgment of the circuit court of Cook County on the convictions for murder, attempted murder, and armed robbery. We vacate the convictions for felony murder and both counts of armed violence. Although this was not addressed by the parties, we vacate the finding for aggravated battery, which was part of the underlying felony of attempted murder. Finally, we remand the case to the trial court with directions to amend the mittimus on the attempted murder.

Judgment affirmed in part, vacated in part, and the case remanded for action consistent with our findings.

Affirmed in part; vacated in part and remanded.

McNAMARA and EGAN, JJ., concur.


author: JUSTICE McNAMARA

text:
    LISA FRUIN, Plaintiff-Appellant, v. NORTHWESTERN MEDICAL FACULTY FOUNDATION, INC., et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—0663
    Opinion filed February 23, 1990.
    Rehearing denied April 3, 1990.

      Kenneth C. Chessiek and John W. Fisk, both of Schaumburg, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Joan S. Cherry, Myra J. Brown, and Helen Haynes, Assistant State’s Attorneys, of counsel), for ap-pellee Robert A. Miller.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Maxwell W. Griffin, and Bruce L. Carmen, of counsel), for appellee Arthur De Boer.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Lisa Fruin, appeals from the order of the circuit court of Cook County dismissing with prejudice her complaint against defendants, Arthur DeBoer, M.D., S.C., Arthur DeBoer, M.D., and Robert A. Miller, M.D. The basis of the dismissal was that the complaint was signed and filed by an attorney who was not licensed to practice in Illinois.

Plaintiff’s appeal arises from the following undisputed facts. On January 11, 1984, plaintiff underwent a surgical procedure for the implantation of a prosthetic aortic valve. The surgery was performed by Dr. DeBoer, and plaintiff was seen and treated by both Drs. De-Boer and Miller for post-operative care and examinations from January 21, 1984, through March 5, 1984. On March 27, 1985, plaintiff underwent emergency open-heart surgery.

On March 27, 1987, plaintiff filed a complaint alleging medical malpractice against Drs. DeBoer, Miller, and the Northwestern Medical Faculty Foundation. (Northwestern Medical has also been dismissed from the case but is not involved in this appeal.) Plaintiff’s complaint alleged that Drs. DeBoer and Miller failed to prescribe an appropriate anticoagulation regime for plaintiff, and that this failure led to medical problems resulting in the required emergency open-heart surgery. Plaintiff further alleged that the first time she knew or should have known that she should have maintained an anticoagu-lation regime was on or about April 1, 1985. Thus, her complaint was filed four days before the expiration of the applicable statute of limitations. See Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212.

The complaint was signed and filed by Michael J. Colgan, an attorney licensed in Wisconsin, but not in Illinois. Colgan consulted with an Illinois law firm, and that firm prepared the initial pleadings. On August 17, 1987, after the statute of limitations had run, a supplemental appearance was filed on plaintiff’s behalf by Kenneth C. Chessick, a licensed Illinois attorney. On January 6, 1988, Drs. De-Boer and Miller were served by alias summons. They filed a motion to dismiss, and on February 6, 1989, the trial court granted the motion to dismiss with prejudice.

Plaintiff alleges that the unique circumstances of her case require this court to reverse the trial court’s order of dismissal. Plaintiff notes that she did not know that Colgan was not licensed to practice in Illinois. Further, she points out that Colgan made reasonable and diligent efforts to secure the participation of Illinois counsel, and that she secured such participation by the entry of the supplemental appearance of licensed Illinois counsel. Finally, she observes that defendants have not suffered any prejudice as a result of the filing of the complaint by an attorney not licensed to practice in Illinois.

Absent leave of court pursuant to Supreme Court Rule 707, an attorney licensed to practice law in another State may not practice law in Illinois. (Lozoff v. Shore Heights, Ltd. (1976), 35 Ill. App. 3d 697, 342 N.E.2d 475; 107 Ill. 2d R. 707.) Generally, a pleading signed by a person not licensed to practice in Illinois is a nullity. (Marken Real Estate & Management Corp. v. Adams (1977), 56 Ill. App. 3d 426, 371 N.E.2d 1192; National Bank v. First Wisconsin National Bank (1977), 53 Ill. App. 3d 482, 368 N.E.2d 119; Leonard v. Walsh (1966), 73 Ill. App. 2d 45, 220 N.E.2d 57.) This rule applies even when subsequent court appearances are made by a duly licensed attorney. Housing Authority v. Tonsul (1983), 115 Ill. App. 3d 739, 450 N.E.2d 1248; Marken Real Estate & Management Corp. v. Adams, 56 Ill. App. 3d 426, 371 N.E.2d 1192.

Plaintiff notes, however, that this court fashioned an exception to the general rule in Janiczek v. Dover Management Co. (1985), 134 Ill. App. 3d 543, 481 N.E.2d 25. Plaintiff urges this court to extend its holding in Janiczek to encompass the situation here. In Janiczek, the plaintiff retained an Illinois licensed attorney to handle a workers’ compensation action and a personal injury claim. The attorney settled the workers’ compensation action and subsequently was disbarred. He then filed the plaintiff’s personal injury action, under the name of another attorney, without authorization to do so. This court held that the plaintiff’s case should not have been dismissed because plaintiff initially had retained an Illinois licensed attorney, and unbeknownst to plaintiff, that attorney was later disbarred. Significantly, the court did not question the reasoning or the results of those cases holding that proceedings instituted by nonattorneys or nonlicensed attorneys are void. Rather, the Janiczek court relied upon the unique circumstances of that case in deviating from the rule voiding proceedings instituted by nonattorneys.

In our view, this case does not present unique circumstances which would justify a similar deviation from the rule. Unlike the plaintiff in JaniczeJc, who hired an Illinois attorney, with offices in Illinois, plaintiff here hired a Wisconsin attorney, with offices in Wisconsin. Accordingly, plaintiff should have inquired into his ability to practice law in Illinois. Her failure to do so, while unfortunate, is not reason enough to permit a relaxation of the rules regarding the unauthorized practice of law. Similarly, Colgan’s failure to ensure that he obtained the necessary authorization to practice in another State cannot justify a deviation from that State’s rules.

Accordingly, we find that the trial court properly dismissed plaintiff’s complaint with prejudice. The court correctly concluded that the complaint was a nullity and, therefore, that no subsequent complaint could satisfy the applicable statute of limitations.

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

Judgment affirmed.

LaPORTA, P.J., and RAKOWSKI, J., concur.