author: JUSTICE WOODWARD

text:
    JOSEPH PETTIE, Plaintiff, v. WILLIAMS BROTHERS CONSTRUCTION, INC., Defendant and Third-Party Plaintiff-Appellant (Otto Baum and Sons, Inc., Third-Party Defendant-Appellee).
    Second District
    No. 2 — 91—1026
    Opinion filed March 12, 1992.

      Richard K. Hunsaker, of Heyl, Royster, Voelker & Allen, of Rockford, for appellant.
    Scott C. Sullivan and Stephen E. Balogh, both of Williams & McCarthy, P.C., of Rockford, and R. Wayne Harvey, of Harvey & Stuckel, Chartered, of Peoria, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant and third-party plaintiff, Williams Brothers Construction, Inc. (Williams Brothers), appeals from the trial court’s order of October 5, 1990, dismissing its third-party complaint which was premised upon an express indemnity agreement between Williams Brothers and third-party defendant, Otto Baum & Sons, Inc. (Otto Baum). We affirm.

On April 6, 1987, plaintiff, Joseph Pettie, filed a two-count personal injury complaint against Williams Brothers, alleging a violation of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.) in count I and negligence in count II. At the time of the accident in October 1985, plaintiff was employed by Otto Baum, a subcontractor of Williams Brothers. Plaintiff alleged that he fell from unguarded scaffolding while performing his work. There is no indication in the record that Otto Baum was ever made a defendant in the original cause filed by the plaintiff.

About years after the action was filed, plaintiff and Otto Baum reached a settlement and jointly petitioned the trial court for a finding pursuant to the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.) that their settlement was in good faith. The trial court entered an order finding that the settlement between plaintiff and Otto Baum was fair and reasonable, in good faith, and that any claim the defendant and all other joint tort-feasors may have against Otto Baum, whether asserting a right of contribution or under common law or a right of implied indemnity, was extinguished. This court affirmed that judgment in Pettie v. Williams Brothers Construction, Inc. (1990), 194 Ill. App. 3d 1114 (unpublished order under Supreme Court Rule 23).

Subsequently, on January 18, 1990, Williams Brothers successfully obtained leave of the trial court to file a third-party complaint against Otto Baum. Williams Brothers premised its third-party complaint against Otto Baum on an express indemnity agreement on the reverse side of defendant’s purchase order which states in pertinent part:

“Subcontractor agrees to observe and comply with all applicable federal, state and local safety rules and regulations, including, but not limited to the Federal Occupational Safety and Health Act. Subcontractor agrees to indemnify and hold harmless Contractor of and from any loss, including but not limited to any fines and penalties and the cost of any corrective measures, which Contractor may sustain by reason of Subcontractor’s failure to comply with said laws, rules and regulations.”

On March 30, 1990, Otto Baum filed its motion to dismiss Williams Brothers’ third-party complaint, asserting that Williams Brothers had been sued for its own violations of the Structural Work Act and its own negligence; none of the pleadings contained any allegation that plaintiff’s injuries resulted from a failure by Otto Baum to comply with any law, rule or regulation. Otto Baum argued that, since plaintiff had not alleged that Otto Baum was in any way at fault, then, pursuant to section 1 of “An Act in relation to indemnity in certain contracts” (Indemnity Act) (Ill. Rev. Stat. 1987, ch. 29, par. 61), the indemnification agreement was void as against public policy and was wholly unenforceable. Alternatively, Otto Baum argued that the indemnity agreement was inapplicable because Williams Brothers was being sued as the result of its own alleged fault and not as the result of Otto Baum’s fault.

The trial court agreed with Otto Baum that construing the indemnity provision so as to require Otto Baum to indemnify Williams Brothers would violate the Indemnity Act. In its order of October 5, 1990, dismissing the third-party complaint, the court found that the Indemnity Act renders void contractual provisions that hold subcontractors liable for injuries incurred as a result of the general contractor’s negligence or of its violation of the Structural Work Act. The court relied on Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, and Hibbler v. Ockerlund Construction Co. (1985), 130 Ill. App. 3d 30.

Williams Brothers filed a motion to reconsider which was denied; its initial appeal from that order in this court was dismissed for failure to obtain the requisite finding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d 304(a)); it returned to the trial court and, on August 1, 1991, successfully obtained the entry of an amended order pursuant to the rule, and a timely notice of appeal was filed.

Relying on Dixon v. Northwestern Publishing Co. (1988), 166 Ill. App. 3d 745, Williams Brothers argues that the trial court erred in dismissing its third-party complaint and in ruling that the express indemnity clause on which the complaint was based was void as against public policy under the Indemnity Act. Section 1 of the Indemnity Act states:

“With respect to contracts or agreements, either public or private, for the construction, alteration, repair or maintenance of a building, structure, highway bridge, viaducts or other work dealing with construction, or for any moving, demolition, or excavation connected therewith, every covenant, promise or agreement to indemnify or hold harmless another person from that person’s own negligence is void as against public policy and wholly unenforceable.” Ill. Rev. Stat. 1985, ch. 29, par. 61.

To thwart attempts to avoid the liability for one’s own acts and to insure a continuing motivation for persons responsible for construction activities to take accident-prevention measures, the Indemnity Act voids, as against public policy, indemnification provisions in construction contracts which relieve a party from liability for his own negligence. (Bosio v. Branigar Organization, Inc. (1987), 154 Ill. App. 3d 611, 613.) There is no question that the present contract involves construction and that the cause of action is within the purview of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.). In turn, Structural Work Act cases are within the reach of the Indemnity Act. (Davis, 61 Ill. 2d at 502.) This court has previously taken notice of our supreme court’s statement of policy found in Davis that the Indemnity Act serves to protect the construction worker and the general public from suffering construction-related injuries by encouraging accident-prevention measures. (Bosio, 154 Ill. App. 3d at 613.) This legislation appears to have been in response to the widespread use of indemnification agreements in the construction industry which may have removed or reduced the incentives to protect workers and others from injury by permitting those who have charge of the work to shift their liability to others by contractor’s agreement. Davis, 61 Ill. 2d at 499.

In the instant case, defendant, Williams Brothers, has been sued for its own negligence and violation of the Structural Work Act. However, said defendant urges a construction of the indemnity agreement which, at first blush, does not appear to violate the Indemnity Act, but upon closer examination appears to be void as applied. Defendant argues that because of the express agreement, if defendant becomes liable to a worker because of Otto Baum’s violation of a safety law (Structural Work Act), defendant should be indemnified for losses caused by Otto Baum’s conduct. Based on the weight of the authority we have reviewed, we hold that the agreement is void and unenforceable for the reasons that follow.

The real question before us is whether a party who may be found liable under the Structural Work Act (defendant Williams Brothers) may shift any portion of its liability to another negligent party by means of a prior express indemnity agreement. The Appellate Court, First District, has responded that such contractual indemnification would undermine the Indemnity Act. In Cox v. Lumbermens Mutual Casualty Co. (1st Dist. 1982), 108 Ill. App. 3d 643, the court concluded that “there are no Structural Work Act violations for which contractual indemnification is permitted.” (Cox, 108 Ill. App. 3d at 647.) For an enlightening and perceptive review of the cases on this issue, see Stifle v. Marathon Petroleum Co. (7th Cir. 1989), 876 F.2d 552.

In Cox, the defendant and third-party plaintiff urged that a party could violate the Structural Work Act by conduct that does not amount to negligence. The defendant argued that its liability was vicariously premised, not the result of its own negligence, and the contract under which it was suing provided that it would be indemnified for all liability arising out of a Structural Work Act violation. The Cox court rejected the argument that a cause of action could arise under the Act from conduct that is less than negligent and stated that fault of some kind is required, although it may range from passive negligence to wilful misconduct. After determining that liability could only result from a finding that the party itself was negligent, the court reasoned that indemnification (for the entire amount of damages) would violate the Indemnity Act. Accord Motor Vehicle Casualty Co. v. GSF Energy, Inc. (1st Dist. 1989), 193 Ill. App. 3d 1, 7 (defendant indemnitee must first be found to have wilfully violated Structural Work Act before it can look to contractor indemnitor for indemnification; the underlying implication is a proscribed attempt to uphold an express agreement to reimburse defendant for liability directly attributable for its own violation of the Act, not liability imposed vicariously or strictly); Hibbler, 130 Ill. App. 3d 30 (conduct that violates Act can range from passive negligence to wilful misconduct, and all indemnification agreements regarding such conduct are per se prohibited by the Indemnity Act); see Ryan v. E.A.I. Construction Corp. (1st Dist. 1987), 158 Ill. App. 3d 449, 464-65 (even if indemnitee is only passively or technically negligent, enforcing contractual indemnity provisions would enable indemnitee to seek indemnity for its own wilful violation of the Act); see also Shaheed v. Chicago Transit Authority (1st Dist. 1985), 137 Ill. App. 3d 352, 364-65.

The third and fifth districts have apparently reached the same result. Pilon v. George A. Johnson & Son (3d Dist. 1984), 125 Ill. App. 3d 590, 591-92 (attempt to pass liability on via contractual indemnity was barred by indemnity statute where indemnity agreement provided that subcontractor would indemnify and hold harmless general contractor against all claims resulting from violation of Structural Work Act as a result of performance of work by subcontractor); Long v. Bucyrus-Erie Co. (5th Dist. 1983), 112 Ill. App. 3d 578 (since defendant and third-party plaintiff indemnitee could not free itself of the fact of its own negligence under the Indemnity Act by invoking the terms of the construction contract, indemnitee had no claim for contractual indemnity, and trial court did not err in dismissing third-party complaint).

Defendant asserts that it should be permitted to look to Otto Baum, the indemnitor, for any loss which defendant may sustain by reason of Otto Baum’s failure to comply with any safety laws such as the Structural Work Act. However, in relying on Dixon v. Northwestern Publishing Co. (166 Ill. App. 3d 745), defendant, as indemnitee, is essentially arguing that, via its indemnity agreement, it should be permitted to litigate the comparative fault of Otto Baum and allow the finder of fact to assess the percentage of liability as it exists with respect to each party. We disagree with this approach, and we decline to follow Dixon on this point; we believe it is contrary to the weight of authority on the subject. It is unclear under what authority, if any, the Dixon court was able to conclude that the issue of comparative fault should be litigated under an express indemnity agreement.

In Dixon, in a Structural Work Act claim similar to the one at bar, the Appellate Court, Fourth District, decided that it was improper to dismiss a third-party complaint based on contractual indemnity even where there had been a settlement between the plaintiff, Dixon, and the indemnitor, Hall. In that settlement agreement, the plaintiff, Dixon, agreed that should he obtain judgment against the indemnitee Northwestern Publishing Company (d/b/a The Commercial News), he would not execute or seek to enforce any judgment for which Hall would be liable in indemnity or contribution to Northwestern.

The Dixon court stated that the supreme court had held that active-passive or implied indemnity is no longer a viable doctrine after passage of the Contribution Act (Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26; 111. Rev. Stat. 1985, ch. 70, par. 302); the Dixon court also stated that the supreme court had stated that “its decision was not meant to affect situations of wholly vicarious liability or situations where indemnity is sought based upon an express agreement.” (Dixon, 166 Ill. App. 3d at 752.) However, in making these observations, the Dixon court was citing dictum from the Allison decision (Allison, 113 Ill. 2d at 27) which did not consider whether an express indemnity provision could contravene the Indemnity Act.

The Dixon court then noted that although the settlement between the plaintiff and the indemnitor, Hall, precluded execution on an indemnity award in favor of Northwestern Publishing (Commercial News), it did not establish what percentage of plaintiff’s award should be attributed to Hall’s negligence. The Dixon court feared that Commercial News could be found responsible for the total amount of damage to the plaintiff despite a contrary, express indemnity agreement between Hall and Commercial News. Because of the express indemnity agreement and despite the fact that plaintiff could not execute on the judgment, the Dixon court concluded that there remained a justiciable issue regarding the percentage of liability and it was error to dismiss the third-party complaint.

We do not find this conclusion sound because it appears to misconstrue the meaning of the indemnity doctrine and ignores the effect of the Indemnity Act on construction contracts which are within the purview of the Structural Work Act. Like the Stifle court, we too fail to understand how the settlement agreement in Dixon between the plaintiff and third-party defendant (which implicitly endorsed the indemnification agreement’s superiority over the Contribution Act) casts any light on whether the express indemnification agreement between the defendant and the third-party defendant is void under the Indemnity Act. Stifle, 876 F.2d at 558 n.7.

The Stifle court made another useful observation applicable to the issue raised here by defendant. That court pointed out that indemnity is a common-law doctrine which shifts the entire responsibility from one tort-feasor, who has been compelled to pay the loss, to another tort-feasor, who is truly culpable. (Stifle, 876 F.2d at 558, citing Playskool, Inc. v. Elsa Benson, Inc. (1986), 147 Ill. App. 3d 292, 297.) Thus, a suit for indemnity is brought to recover the total amount of the payment by the plaintiff seeking indemnification. By contrast, a suit for contribution is brought for the recovery of a proportionate part of the sum paid by a plaintiff on the ground that the parties were both guilty of negligence and should share the costs. (876 F.2d at 559.) It has been stated that contribution, which is a statutory remedy that involves the sharing of payment of damages among liable parties, is a superior practice to indemnity, which completely shifts liability to another. Stephan v. Sears, Roebuck & Co. (1986), 147 Ill. App. 3d 833, 836, citing Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 349.

If indemnification is what was truly contemplated by the agreement between Williams Brothers and Otto Baum, then the agreement would require Otto Baum to indemnify Williams Brothers for all liabilities arising from Otto Baum’s performance. This is clearly impermissible under the Indemnity Act. Any liability which Williams Brothers would incur as a result of plaintiff’s claim against it would only be due to its own negligence or culpability, and not Otto Baum’s performance, because liability under the Structural Work Act only arises out of actual negligence and not vicariously (GSF, 193 Ill. App. 3d at 7) or strictly (Allison, 113 Ill. 2d at 35). Thus, even under Williams Brothers’ construction of the agreement, it would not be able to shift the entire amount of its liability to Otto Baum. Rather, it could only shift that portion of its liability which is attributable to Otto Baum’s degree of fault. As the Stifle court pointed out, it is hard to imagine a clearer example of contribution as opposed to indemnification. Stifle, 876 F.2d at 559.

As in Stifle and GSF, the indemnification agreement, as it purports to indemnify Williams Brothers for liability arising exclusively from Otto Baum’s performance, would not, on its face, run afoul of the Indemnity Act. However, Williams Brothers urges a construction that, if applied, would convert the indemnification agreement into an agreement for contribution without the statutory foreclosure upon a good-faith settlement which is central to the Contribution Act. (In order to encourage settlement (Rakowski v. Lucente (1984), 104 Ill. 2d 317, 325), the Contribution Act provides that a tort-feasor that settles in good faith with an injured party is then absolved from any further liability (Ill. Rev. Stat. 1987, ch. 70, par. 302); under proper circumstances, a right of setoff is also provided to prevent a double recovery (Wilson v. Hoffman Group, Inc. (1989), 131 Ill. 2d 308, 322-24).) We believe that defendant urges a construction of the agreement which does violence to the meaning of the term “indemnity” and, if adopted, would also undermine the viability of the Indemnity Act and would contravene the good-faith settlement whose approval we have already affirmed in this cause pursuant to the Contribution Act (Pettie, 194 Ill. App. 3d 1114; Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.).

Defendant is only being sued for its own potential negligence. Although defendant appears concerned that the jury may impose a greater degree of liability upon it than is warranted, such a concern must be addressed by proper presentation of the case and the evidence in the trial court. See Allison, 113 Ill. 2d at 35.

In sum, since Williams Brothers must first be found to have wilfully violated the Structural Work Act before it can look to Otto Baum for indemnification, the underlying implication is an attempt to uphold an express agreement to reimburse Williams Brothers for liability directly attributable to its own violation of the Act, not liability imposed vicariously or strictly. We hold that this type of agreement is proscribed by the Indemnity Act. We agree with the reasoning adopted in such cases as GSF and Cox. See GSF, 193 Ill. App. 3d at 7; Cox, 108 Ill. App. 3d at 647.

The judgment of the circuit court is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHARLES HARRISON III, Defendant-Appellee.
    Fifth District
    No. 5 — 91—0074
    Opinion filed March 11, 1992.

      William R. Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

The People of the State of Illinois appeal from the order of the circuit court of Madison County entered February 1, 1991, dismissing the felony indictment against defendant, Charles Harrison III, for driving under the influence of alcohol (hereinafter DUI).

Defendant was initially charged with felony DUI on July 25, 1989. A preliminary hearing was held on case No. 89—CF—681 on July 6, 1990. Officer Dennis Kaid testified at the preliminary hearing that he had stopped defendant’s vehicle on July 25, 1989, and noticed a strong odor of alcohol about defendant’s person and an open can of beer on the car floor. When asked for his driver’s license, defendant responded that it was suspended. Defendant was placed under arrest and transported to the police station where he was asked to perform certain field sobriety tests.

Defendant was unable to satisfactorily perform these tests and Officer Kaid determined that defendant was unfit to drive because he was under the influence of alcohol. Officer Kaid charged defendant with driving under the influence and asked defendant to submit to the breathalyzer test. Defendant was given the “warning to motorist” and Miranda warnings before voluntarily taking the breathalyzer test. Defendant received a 0.21 score on the breathalyzer test.

Officer Kaid testified that his records indicated that defendant was arrested and convicted twice in 1986 for DUI. He also testified that defendant was represented by counsel for each of those convictions. On cross-examination Officer Kaid admitted that both convictions were entered on August 1, 1986. Officer Kaid testified that in addition to the two DUI cases which resulted in convictions in 1986, information from the Secretary of State’s office indicated that defendant’s driver’s license had been revoked for DUI on April 5, 1985, in another jurisdiction. The assistant State’s Attorney also asked the court to take judicial notice of defendant’s conviction in 1983, apparently for DUI, but did not know whether defendant had been represented by counsel in either the 1983 or the 1985 case. The court would not consider evidence of the 1983 or 1985 DUI convictions without evidence that defendant had been represented by counsel in those cases.

Defendant also argued at the hearing that he could not be charged with felony DUI because the two 1986 convictions, in which he had been represented by counsel, occurred on the same day. Defendant contended that the language in the felony DUI statute (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501(d)(1)) was analogous to language in the second or subsequent offenses statute (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3(c)(8)) and the habitual criminal statute (Ill. Rev. Stat. 1989, ch. 38, par. 33B—1) and therefore this case would only support a misdemeanor charge. The court noted that the subsequent offenses and habitual criminal statutes required that an accused commit a crime, be convicted, then commit a second crime, be convicted, and then commit a third crime before the accused could be charged as a subsequent offender and that the legislative intent was to punish recidivism. The People argued, however, that the plain language of the DUI statute indicates that when an accused has twice been convicted of DUI and is charged with another DUI following those convictions, the charge is a Class 4 felony. The People noted that the two convictions in 1986 resulted from offenses committed on two separate occasions.

The court ruled that probable cause was lacking for the felony offense of DUI, although the court believed that defendant could be prosecuted for the misdemeanor offense of DUI, and the court dismissed the felony charge against defendant. This court dismissed the People’s appeal of the circuit court’s July 6, 1990, ruling. People v. Harrison (December 14, 1990), No. 5—90—0491 (unpublished summary order).

A Madison County grand jury indicted defendant on November 15, 1990, charging defendant with felony DUI for the offense committed on July 25, 1989, in case No. 90—CF—1140. Defendant moved to dismiss the indictment because defendant had previously been charged with the same offense in 89—CF—681, a preliminary hearing had been held thereon, a finding of no probable cause was made by the court on July 6, 1990, and this finding was res judicata with respect to case No. 90—CF—1140. Following hearing of defendant’s motion on February 1, 1990, the court ordered that the argument from the preliminary hearing in case No. 89—CF—681 and the report of proceedings in that case be incorporated into the record in the instant case. The circuit court ordered dismissal of the indictment on February 4, 1991, based on its finding at the preliminary hearing on case No. 89—CF—681 that two simultaneous convictions could not count as two convictions for the enhancement of a misdemeanor to a felony DUI charge.

The People argue on appeal that the circuit court erred in dismissing the indictment charging felony DUI because an indictment may not be dismissed prior to trial on the basis that there may be insufficient evidence to support the charge. Our review of the record, however, indicates that the court in the instant case made its finding of no probable cause for felony DUI because of its interpretation of the felony DUI statute. As such the court was finding as a matter of law that the charge or indictment did not state an offense for felony DUI because the two prior convictions stated in the charge in case No. 89 —CF—681 and the indictment in case No. 90—CF—1140 occurred on the same date. Section 114—1(a)(8) of the Code of Criminal Procedure of 1963 provides that upon written motion of defendant prior to trial the court may dismiss the indictment, information or complaint where the charge does not state an offense. (Ill. Rev. Stat. 1989, ch. 38, par. 114—1(a)(8).) The People also argue that the circuit court erred in dismissing the indictment for felony DUI where the two prior violations of the DUI statute which enhanced the charged offense to a felony occurred at different times in 1986 even though the defendant pleaded guilty to both charges on the same date. Our determination then of both issues raised on appeal requires an interpretation of the felony DUI statute, an issue of first impression, according to our perusal of Illinois case law. Because we believe the circuit court erred in interpreting the felony DUI statute to require that the two prior convictions for DUI not be entered on the same day in order to sustain a charge of felony DUI, we reverse.

Section 11—501 of the Illinois Vehicle Code provides, in pertinent part, that a person shall not drive or be in actual physical control of any vehicle within this State while the alcohol concentration in such person’s blood or breath is 0.10 or more. (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501(a).) Section 11—501(d)(1) of the Illinois Vehicle Code provides that every person convicted of committing a violation of this section shall be guilty of a Class 4 felony if such person committed a violation of paragraph (a) for the third or subsequent time. It is this latter subsection of section 11—501 that we refer to as the felony DUI statute.

The court’s interpretation of the felony DUI statute was apparently based on the language in certain enhanced-penalty criminal statutes and the case law interpreting them and the court’s finding that the felony DUI statute is also an enhanced-penalty statute. This court has stated that a statute which imposes additional punishment upon conviction for a second or subsequent conviction is highly penal and must be strictly construed and that such “enhanced penalty” statutes are enacted as a warning to a first offender of the consequences of a second conviction. (People v. Phillips (1978), 56 Ill. App. 3d 689, 695, 371 N.E.2d 1214, 1219.) In Phillips we were asked to interpret section 408 of the Controlled Substances Act, which provided:

“§408. (a) Any person convicted of a second or subsequent offense under this Act may be sentenced to imprisonment for a term up to twice the maximum term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.
(b) For purposes of this Section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this Act or under any law of the United States or of any State relating to controlled substances.” (Ill. Rev. Stat. 1975, ch. 56½, par. 1408.)

The issue on appeal in Phillips was whether the defendant therein could be treated as a second or subsequent offender where his two convictions occurred on the same day for violations which occurred within a four-day period. This court concluded that the words “convicted of a second or subsequent offense” prior to the fixing of penalties in section 408 did not contemplate the accumulation of a number of offenses within a four-day period but instead contemplated increased punishment for a person who after conviction did not reform but persisted in committing other offenses of a similar character. We held that sentencing of enhanced penalties under section 408 could only occur where the defendant was convicted of a narcotics violation charge, then committed another narcotics offense which leads to a second or subsequent conviction, and the enhanced-penalty provision is specifically invoked by the trial court when imposing sentence. Phillips, 56 Ill. App. 3d at 695, 371 N.E.2d at 1219.

Other courts interpreting criminal statutes with enhanced penalties for second or subsequent offenses have similarly found that since the statute was designed to warn first offenders that future violations will receive greater punishment, the penalty for second or subsequent offenses cannot be enhanced unless there has been a prior conviction of the defendant for the offense. (See People v. Leckner (1986), 149 Ill. App. 3d 314, 500 N.E.2d 721; People v. Carlock (1981), 102 Ill. App. 3d 1100, 430 N.E.2d 212.) In Leckner, the court on review was asked to interpret the penalty provisions of the deceptive practices statute (Ill. Rev. Stat. 1983, ch. 38, par. 17— 1(B)). The deceptive practices statute provides that an offense under the statute is a Class A misdemeanor but adds that “[a] person convicted of a deceptive practice in violation of paragraph (d) a second or subsequent time shall be guilty of a Class 4 felony.” (Ill. Rev. Stat. 1983, ch. 38, par. 17—1(B).) The court held that the underlying conviction which enhances the violation of the law from a misdemeanor to a felony must exist at the time the actions constituting the second offense take place, relying on our decision in the Phillips case, which it found to have interpreted an enhancement provision similar to section 17—1(B) of the deceptive practices statute. The court in Leckner found that a previous conviction for deceptive practice is an element of the felony deceptive practice offense with which the defendant was charged and therefore reversed defendant’s conviction for felony deceptive practices. Leckner, 149 Ill. App. 3d at 317, 500 N.E.2d at 723.

In Carlock, the court on review was asked to interpret the sentence provisions of the obscenity statute, which state that obscenity is a Class A misdemeanor but that “[a] second or subsequent offense is a Class 4 felony.” (Ill. Rev. Stat. 1979, ch. 38, par. 11—20(d).) The court noted that other sections of the Criminal Code provide for enhancement of penalties for subsequent “offenses” rather than “convictions” and that it could discern no intent of the legislature to depart from the requirement that the offense on which the subsequent enhancement is predicated must first be reduced to a conviction. The Carlock court held that the penalty for a second or subsequent offense for obscenity cannot be enhanced unless there has been a prior conviction of the defendant for an obscenity offense, and the court affirmed the order of the circuit court therein which dismissed the indictment for felony obscenity. Carlock, 102 Ill. App. 3d at 1103, 430 N.E.2d at 215.

We find critical differences with the statutory language interpreted in the Phillips, Carlock and Leckner cases and the language of the felony DUI statute which we have been asked to interpret. We also find factual differences with the charges or indictments involved in Phillips and its progeny and the indictment in the instant case which we believe are distinguishing. In each of these enhanced-penalty statutes, the felony conviction could be obtained for the second or subsequent offense. Moreover, the second offenses, selling of controlled substances, obscenity, and deceptive practices, were charged before conviction of the first such offense, in fact the second offenses were charged within a few days of the charge for the first offense. In each case there was no conviction when the charge or indictment for the second offense was issued. In the instant case, however, where the statute provides that the felony penalty is only in effect for the third or subsequent violation of DUI, there were two prior convictions of record when the charge in case No. 89—CF—681 and the indictment in case No. 90—CF—1140 were issued.

The felony DUI statute provides that a person convicted of committing a third or subsequent violation of the DUI law shall be guilty of a Class 4 felony. In our opinion this language is clear and unambiguous and evidences an intent of the legislature that a felony penalty inure for a third DUI conviction. It is well established that in construing a statute, the court is obligated to ascertain and give effect to the intent of the legislature, and, generally, the language of the statute itself is the best indicator of that intent. (People v. Brom (1989), 189 Ill. App. 3d 910, 912, 545 N.E.2d 1061, 1063.) While we would agree that the felony DUI statute requires that the offense which results in a person’s third conviction be preceded by two convictions, we will not read into the plain language of the statute a requirement that the second offense occur after conviction of the first offense.

In reaching its decision to dismiss the charge against defendant, the circuit court noted that the subsequent offenses and habitual criminal statutes required the sequence of an offense, a conviction of that offense, a second offense, a conviction of the second offense, a third offense and conviction for that offense. The habitual criminal statute provides for life imprisonment of a person who has twice been convicted of certain enumerated Illinois Class X or equivalent felony offenses of another jurisdiction and is thereafter convicted of a Class X felony committed after the two prior convictions, and the statute specifically states:

“(d) This Article shall not apply unless each of the following requirements are [sic] satisfied:
(1) the third offense was committed after the effective date of this Act;
(2) the third offense was committed within 20 years of the date that judgment was entered on the first conviction, provided, however, that time spent in custody shall not be counted;
(3) the third offense was committed after conviction on the second offense;
(4) the second offense was committed after conviction on the first offense.” (Ill. Rev. Stat. 1989, ch. 38, pars. 33B—1(d)(1) through (d)(4).)

Similarly, the subsequent offenses statute provides for the enhancement of a third or subsequent Class 1 or Class 2 felony to a Class X felony:

“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(c)(8).)

Defendant argues that the dissimilarity in language between these two statutes and the felony DUI statute is not dispositive if the legislative intent is the same, to prevent recidivism. We agree with the People, however, that if the legislature had intended to make the sequence duly specified in both the habitual criminal and subsequent offenses statutes applicable in the felony DUI statute, it certainly could have done so. (Cf. People v. Hamilton (1980), 81 Ill. App. 3d 297, 401 N.E.2d 318 (the court rejected application of reasoning in People v. Phillips to penalty-enhancement provision contained in section 5—5—3.2(b) of the Unified Code of Corrections, noting that while the habitual criminal statute and the subsequent offenses statute specifically state that they do not apply unless the first offense is committed after the effective date of the act, the second offense is committed after conviction for the first, and the third offense is committed after conviction for the second, no such similar requirement was included by the legislature in section 5—5—3.2(b)).) (Hamilton, 81 Ill. App. 3d at 303, 401 N.E.2d at 322.) When the language of the statute is clear and unambiguous the court is not authorized to resort to supplementary principles of statutory construction and may not read into such unambiguous statutory language exceptions, limitations or conditions. Brom, 189 Ill. App. 3d at 912-13, 545 N.E.2d at 1063.

The indictment against defendant stated that defendant, at the time of the July 25, 1989, offense, had twice been previously convicted for separate violations of the DUI law. It is our opinion that this indictment stated an offense for felony DUI under section 11—501(d)(1) of the Illinois Vehicle Code, and accordingly, the circuit court erred in dismissing the indictment. The February 1, 1991, order of the circuit court of Madison County is reversed, and case No. 90—CF — 1140 is remanded to that court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

GOLDENHERSH, P.J., and HARRISON, J., concur.


author: JUSTICE CHAPMAN

text:
    BRANDI CHIAPELLI, by her Mother and Next Friend, Vicki Ashton, Plaintiff-Appellee, v. VITO VIVIANO, Defendant-Appellant.
    Fifth District
    No. 5-91-0014
    Opinion filed March 13, 1992.

      Michael R. Bilbrey, of Bono, Goldenberg, Hopkins & Bilbrey, P.C., of Wood River, for appellant.
    H. Carl Runge, Jr., of Law Offices of H. Carl Runge, Jr., Ltd., of Collinsville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Brandi Chiapelli was born November 28, 1972. In 1974, her mother, Vicki Chiapelli (hereinafter referred to as Vicki Ashton), filed a paternity action against Vito Viviano, alleging that he was Brandi’s father. Ashton and Viviano entered into a stipulation wherein Vito denied paternity but consented to a court-approved settlement which provided that he would pay Ashton $3,000 to dismiss the case. On August 7, 1974, the court approved the settlement and ordered that any parental interest Viviano had in Brandi Chiapelli was terminated. The substantive provisions of the 1974 order are as follows:

“This cause comes on to be heard and the Court having considered the evidence and the argument of counsel and being fully advised in the premises, and the Court having further examined the Stipulation and agreement entered into between the parties, the Court finds as follows:
1. Said stipulation and agreement is fair and reasonable and should be approved by this Court.
2. That defendant denies paternity in this proceedings [sic] and that his liability in connection with said paternity is therefore disputed between the parties.
3. That it is in the best interests of the child that plaintiff have sole and exclusive custody of said child and defendant has waived any claims he might have as natural father of said child and agreed and consented to the adoption of the child by any person or persons or by any agency and waives service of process on him in any adoption proceedings and agreed that immediate default may be taken against him in any such proceedings.
4. That the financial security of the child, Brandy [sic], is adequately provided for and that the child and mother are not likely to become public charges.
IT IS THEREFORE ORDERED:
1. That the stipulation entered into between the parties shall be and the same is hereby approved and that the defendant is ordered to pay to the plaintiff the sum of Three Thousand Dollars ($3,000.00) in accordance with the terms of said stipulation.
2. That plaintiff shall have judgment against the defendant for said sum of Three Thousand Dollars ($3,000.00).
3. That plaintiff shall have sole care, custody and control of said child.
4. That any interest defendant may have in, or claims upon [sic] the child, Brandy [sic], are hereby terminated.
Dated this 7th day of August 1974.”

The order did not determine the paternity of the minor child, Brandi Chiapelli, and she was not a party to the 1974 proceedings. A release of judgment was filed with the court on September 20, 1974, indicating that Vito Viviano had paid $3,000 to Vicki Chiapelli.

On December 19, 1984, the Illinois Department of Public Aid (Department) filed a complaint on behalf of Brandi Chiapelli in an effort to establish the paternity of Vito Viviano. On March 15, 1985, the court entered an order dismissing the original complaint on the basis of defendant’s motion asserting that the complaint was not verified. On March 28, 1985, the Department filed an amended verified complaint once again alleging the paternity of defendant. Viviano filed a motion to dismiss the complaint on the grounds that the court lacked jurisdiction to hear the matter because of the 1974 court order. The trial court denied Viviano’s motion and after an evidentiary hearing found that he was the natural and biological father of Brandi Chiapelli. In February of 1988, the Department withdrew from the proceeding because it was no longer providing assistance to the minor child. On March 7, 1988, the court appointed a guardian ad litem for the minor, who filed a petition for support against Viviano. On March 29, 1989, the court ordered Viviano to pay future child support of $450 per month. A supplemental order was entered in December of 1990, whereby the court confirmed its previous order and further ordered Viviano to pay child support retroactive to February 1985 in the amount of $24,600. The court also ordered Viviano to pay the guardian ad litem fees.

Viviano first argues that the lower court was without jurisdiction to hear the 1984 paternity and support action because the court terminated his parental rights in and to the minor child in 1974. Once an order terminating parental rights is entered, the natural parent is relieved of all parental responsibility for that child. (Ill. Rev. Stat. 1989, ch. 40, par. 1521.) Defendant points to the court’s order of August 7, 1974, as proof that his parental rights and duties to Brandi were terminated:

“[D]efendant has waived any claims he might have as natural father of said child and agreed and consented to the adoption of the child by any person or persons or by any agency and waives service of process on him in any adoption proceedings and agreed that immediate default may be taken against him in any such proceedings.
* * *
*** That any interest defendant may have in, or claims upon [sic] the child, Brandy [sic], are hereby terminated.”

The Adoption Act provides four different forms of consent and surrender which enable parents to legally consent to the termination of their parental rights and to the adoption of their children. (Ill. Rev. Stat. 1989, ch. 40, par. 1512.) Substantially similar forms were available in 1974. (Ill. Rev. Stat. 1973, ch. 4, par. 9.1—8.) While a liberal rule of construction applies under the Adoption Act (Ill. Rev. Stat. 1989, ch. 40, par. 1524), substantial compliance with these suggested forms is required. (In re Custody of Mitchell (1983), 115 Ill. App. 3d 169, 450 N.E.2d 368; In re Adoption of Lucas (1980), 87 Ill. App. 3d 1100, 409 N.E.2d 521.) The 1974 court order, while purporting to memorialize the termination of Viviano’s parental rights, meets none of the formalities of the consent and surrender forms. The 1974 order does not refer to any such documents. In addition, the record contains no further proof that defendant consented to the termination of his parental rights, nor does defendant suggest that any proof exists other than the 1974 court order. We conclude that the 1974 court order did not terminate defendant’s parental rights.

Viviano next argues that the Department and Brandi Chiapelli did not have standing to file their complaint because the Paternity Act of 1957 (Ill. Rev. Stat. 1957, ch. 17, par. 31 et seq.) as it existed in 1972, the year of Brandi’s birth, provided neither the Department nor the minor with a right of action against the defendant. Defendant contends that the rights and liabilities of the father of an illegitimate child are to be determined by the statute in effect at the time of the child’s birth. We disagree.

Under the Paternity Act of 1957, as it existed at the time of Brandi’s birth, a proceeding to establish the paternity of a child could be instituted only by the mother of the child. (Ill. Rev. Stat. 1971, ch. 106¾, par. 54.) It was not until section 4 of the Paternity Act was amended in August 1975 that the Illinois Department of Public Aid was permitted to file suit on behalf of illegitimate minor children. (Ill. Rev. Stat. 1975, ch. 106½, par. 54, amended by Pub. Act 79— 474, eff. Aug. 22, 1975.) Minor children were first given authority to institute paternity actions with the passage of the Illinois Parentage Act of 1984 (Parentage Act). Ill. Rev. Stat. 1985, ch. 40, par. 2507.

Viviano contends that section 25 of the Parentage Act (Ill. Rev. Stat. 1985, ch. 40, par. 2525) supports his position that Brandi Chiapelli’s action is barred. Viviano cites that portion of section 25 which provides:

“[T]he repeal of the ‘Paternity Act’ *** shall not affect rights or liabilities which have accrued thereunder and which have been determined, settled or adjudicated prior to the effective date of this Act or which are the subject of proceedings pending thereunder on such effective date.” (Ill. Rev. Stat. 1985, ch. 40, par. 2525.)

“This provision extends finality to cases brought under the Paternity Act but its application is limited to rights and liabilities which have been ‘determined, settled or adjudicated.’ ” (Maller v. Cohen (1988), 176 Ill. App. 3d 987, 991, 531 N.E.2d 1029, 1032.) Here, Brandi Chiapelli did not file an action under the Paternity Act, nor was she permitted to. Technically, Brandi Chiapelli had no cause of action before, and, therefore, the dismissal of the mother’s suit has no effect whatsoever on the right of the child to bring an action under the Parentage Act. (People ex rel. Rice v. Graves (1989), 191 Ill. App. 3d 220, 547 N.E.2d 717; Department of Public Aid ex rel. Skelton v. Liesman (1991), 218 Ill. App. 3d 437, 578 N.E.2d 310.) The minor’s cause of action to establish paternity was not “determined, settled or adjudicated.” It is clear from reading the second sentence of section 25 that her claim is not barred. That sentence provides that the Parentage Act “shall not be construed to bar an action which *** could not have been maintained under the ‘Paternity Act,’ ” as long as the limitation periods of the Parentage Act are complied with. Ill. Rev. Stat. 1985, ch. 40, par. 2525.

In the recent supreme court decision Department of Public Aid ex rel. Cox v. Miller (1992), 146 Ill. 2d 399, the Department brought a paternity action on behalf of Monica Cox, a minor. The putative father filed a motion to dismiss based on a 1978 settlement agreement between him and- the child’s mother, wherein he agreed to pay the mother $5,000 and she agreed to a dismissal with prejudice of the paternity action she had filed. The court held that a settlement order and dismissal entered in a paternity action does not bar a subsequent action brought by or on behalf of the illegitimate minor for support. The Cox court noted that the Paternity Act was repealed in response to the United States Supreme Court’s denunciation of State statutes which denied equal protection to nonmarital children seeking support from their parents. (Cox, 146 Ill. 2d at 404, citing Klawitter v. Crawford (1989), 185 Ill. App. 3d 778, 781-82, 541 N.E.2d 1159, 1161.) The supreme court, reversing the appellate court, stated that under the circumstances the purpose of “securing finality” through out-of-court settlements is outweighed by the interest of nonmarital children pursuing monetary support from their parents. (Cox, 146 Ill. 2d at 412.) In view of the decision in Cox, we find the argument of Viviano to be without merit and hold that the trial court did not err in denying Viviano’s motion to dismiss the plaintiff’s amended complaint.

The final issue for our review is whether the trial court erred in awarding retroactive and future child support. The lower court ordered Viviano to pay future child support of $450 per month and support retroactive to February 1985 in the amount of $24,600. Viviano cites Department of Public Aid ex rel. Spurgetis v. Newburg (1989), 181 Ill. App. 3d 424, 537 N.E.2d 384, in support of his argument that child support cannot be sought where there is a prior court-approved settlement. In that case the Department filed a paternity action against the putative father for support. The appellate court affirmed the trial court’s dismissal of the action, holding that when the trial court approved a settlement of the mother’s paternity suit, the court lost jurisdiction and authority to enter any supplemental orders for support.

While the precise issue at bar was not addressed in Cox, we find the reasoning of the supreme court in that case most applicable to the issue herein:

“Legislative common sense dictates that if parents do not support their children, an already strained State welfare system must do so.
In weighing the opposing State interests, the appellate court concluded that the Parentage Act’s purpose of ‘securing finality’ outweighs the interest of nonmarital children in pursuing monetary support from their parents. *** We find these conclusions are contrary to the stated purpose of the Parentage Act and the public policy of this State. Thus, we interpret section 12.1 of the Parentage Act [(Ill. Rev. Stat. 1989, ch. 40, par. 2512.1)], which allows a child to bring an action to ascertain paternity, to also allow that child to bring an action seeking support from his or her parent. To find otherwise would be to denigrate the clearly expressed intent of the legislature as well as the public policy of the State.” (Cox, 146 Ill. 2d at 412.)

In light of Cox, we conclude that the lower court did not err in awarding future and retroactive child support.

Accordingly, the order of the circuit court of Madison County is affirmed.

Affirmed.

GOLDENHERSH, P.J., and LEWIS, J., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM C. PRICE, Defendant-Appellant.
    Third District
    No. 3 — 91—0567
    Opinion filed March 12, 1992.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The trial court convicted the defendant, William C. Price, of two counts of official misconduct (Ill. Rev. Stat. 1989, ch. 38, par. 33— 3). It thereafter sentenced him to a term of 18 months’ probation. He appeals, and we affirm in part and vacate in part.

The defendant raises three issues on appeal. He initially argues that count I of his indictment was defective since it failed to identify any statute, law, or regulation he was alleged to have violated. In addition, he contends that one of his two convictions should be vacated under the principle of one act, one crime, since both offenses were based on the same conduct.

The State concedes that both charges were predicated upon the defendant’s conduct of possessing and using a handgun to shoot a hog in a meat packing plant. As such, citing its prosecutorial discretion as to which conviction should be vacated, it asks this court to vacate the defendant’s conviction that was based on count I.

We agree with the defendant and the State that the two convictions were based upon the same conduct. As such, we vacate the defendant’s conviction of official misconduct as alleged in count I of the indictment. (See People v. Ellis (1986), 143 Ill. App. 3d 892, 493 N.E.2d 739 (multiple convictions based upon the same physical act or acts cannot stand).) We note that our disposition of count I renders the defendant’s first argument moot.

The defendant also argues that he was not proven guilty of official misconduct beyond a reasonable doubt because the evidence did not show that he knew he was violating any law by possessing a gun and shooting a hog in the course of his official duties.

The record shows that the defendant testified that he had worked for the State of Illinois since 1974 as a meat inspector. Part of his job was to inspect hogs to see if they had any disease that would make them unfit for human consumption. He stated that all hogs, whether diseased or not, were killed by being shocked and then having their throats slit.

He also stated that sometime in the first week of October 1990, he shot a diseased hog. He used a .22 caliber pistol to shoot the hog and he fired about four to five shots into the hog’s head. However, the hog did not die, so the plant employees shocked it and slit its throat.

The defendant further testified that he did not realize he was violating any law by shooting the hog and he was not aware of any regulation prohibiting an inspector from using a gun to kill an animal. He admitted he was given a manual which set forth the State and Federal regulations he was to follow in the course of his employment. He also acknowledged that he was responsible for knowing the manual’s contents.

Other evidence showed that the manual contained a regulation which prohibited inspectors from carrying firearms while performing their official duties. The manual also set forth the proper procedure for slaughtering animals. It stated that the slaughtering was to be done by plant employees in a humane manner, that is, the animal was to be rendered unconscious before being killed.

In addition, the evidence showed that new or amended regulations were regularly sent to the regional offices for distribution to the individual inspectors. Each inspector was required to keep a copy of the manual in his car and was required to follow all the regulations set forth in the manual.

The evidence regarding the exact date the regulation in question was enacted is conflicting; however, the defendant admitted that the regulation had been in effect since at least 1978. He also stated that he did not remember receiving the regulation in question, but admitted it could have been in his manual and he just never read it. He noted that he had never shot a hog before, since it was the plant employees’ responsibility to dispose of diseased animals. In addition, he stated that in the course of his employment with the State he had never seen an inspector kill an animal as part of his employment.

Citing People v. Samel (1983), 115 Ill. App. 3d 905, 451 N.E.2d 892, the defendant argues on appeal that the State had to prove actual knowledge in order to show the mental state necessary to secure a conviction for official misconduct. Samel held that the maxim that a party is presumed to know the law has no application to official misconduct proceedings under section 33—3 (Ill. Rev. Stat. 1989, ch. 38, par. 33—3). As such, the defendant contends that since he did not know it was against the law to carry a firearm in the course of his official duties, he did not have the requisite mental state to be proven guilty of that crime.

A public officer or employee commits misconduct when, in his official capacity, he knowingly performs an act which he knows he is forbidden by law to perform. (Ill. Rev. Stat. 1989, ch. 38, par. 33— 3(b).) When faced with a challenge to the sufficiency of the evidence in a criminal case, the function of a reviewing court is to determine whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) The determination of whether the defendant acted with the requisite intent is for the trier of fact. Intent may be inferred from the actions of the accused, as well as the surrounding circumstances. When the facts in a case give rise to more than one inference, a reviewing court shall not substitute its judgment for that of the trier of fact unless the inference accepted by the trier of fact is inherently impossible or unreasonable. (People v. Wehrwein (1990), 209 Ill. App. 3d 71, 568 N.E.2d 1.) Furthermore, the mental state of knowledge is ordinarily proven by circumstantial evidence as opposed to direct proof. People v. Sedlacko (1978), 65 Ill. App. 3d 659, 382 N.E.2d 363.

Here, viewing the evidence in the light most favorable to the prosecution, we find from the circumstances surrounding the case that a rational trier of fact could have concluded beyond a reasonable doubt that the defendant knew his actions were against the law. We note the trial judge specifically found that the defendant had the requisite intent. He stated:

“I believe that I would have to throw away all my sense of common knowledge and experience in life to say that Mr. Price did not know that he was performing these acts, not knowing he was forbidden by law to do so. All the evidence that I have heard and reasonable inferences that I have made from that evidence indicates in my opinion beyond a reasonable doubt that he was aware of the fact from his regulations of being an employee for 15 years that he could not conduct himself in the manner that was alleged ***.”

We do not find the trial court’s determination to be unreasonable. Although the defendant testified that he did not know about the regulation, it could be inferred from other evidence that he did know about it.

The regulation had been in effect since at least 1978 and the defendant was required to know the contents of his manual. In addition, he testified that during his 15 years of employment no other inspector had ever shot an animal, nor had he ever shot a hog before. Furthermore, he was aware of the proper slaughtering procedure and that the procedure certainly did not allow for inspectors to shoot hogs with a .22 caliber pistol.

Accordingly, the defendant’s conviction based on count II of the indictment is affirmed. The conviction based on count I is vacated.

The judgment of the circuit court of Peoria County is affirmed in part and vacated in part.

Affirmed in part; vacated in part.

HAASE and McCUSKEY, JJ., concur.


author: JUSTICE GORMAN

text:
      In re MARRIAGE OF DARRELL K. ROBINSON, Petitioner-Appellee, and MARILYN A. ROBINSON, Respondent-Appellant.
    Third District
    No. 3 — 91—0626
    Opinion filed March 9, 1992.
    Stephen C. Myers, of Myers, Daugherity, Berry & O’Conor, Ltd., of Streator, for appellant.
    Michael Guio, of Streator, for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

The trial court dissolved the marriage of the petitioner, Darrell K. Robinson, and the respondent, Marilyn A. Robinson. Marilyn appeals the dissolution order.

The record shows that Darrell sought a dissolution of the parties’ marriage based upon grounds of irreconcilable differences. It also shows that he orally waived, without objection from Marilyn, the required two-year waiting period necessary to obtain a dissolution on these grounds. Finally, the record shows that no written waiver of the two-year waiting period was ever filed with the court.

On appeal, Marilyn argues that since no written waiver was filed with the court, the court was without jurisdiction to enter an order of dissolution.

In order to obtain a decree of dissolution on the grounds of irreconcilable differences, it must be proved that the spouses have lived separate and apart for a continuous period in excess of two years and that irreconcilable differences have caused the irretrievable breakdown of the marriage. However, “if the spouses have lived separate and apart for a continuous period of not less than 6 months, *** the requirement of living separate and apart for a continuous period in excess of 2 years may be waived upon written stipulation of both spouses filed with the court.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 40, par. 401(a)(2).) Where a trial court is hearing matters relating to the dissolution of a marriage, it is not acting within the unlimited jurisdiction conferred on it by the constitution but, rather, is limited to that granted in the Illinois Marriage and Dissolution of Marriage Act (Marriage Act). (In re Marriage of Rifkin (1983), 114 Ill. App. 3d 555, 449 N.E.2d 173.) In addition, case law clearly states that the Marriage Act is to be strictly construed. In re Marriage of Rittmeyer (1982), 107 Ill. App. 3d 892, 438 N.E.2d 237.

Here, strictly construing the statute we find that the legislature intended that a written waiver be filed before the court could obtain jurisdiction over the matter. Accordingly, since a written waiver was not filed with the court, we find that the court was without subject matter jurisdiction to enter an order of dissolution.

We note that this is an unfortunate result since the lack of a filed written waiver was simply an understandable oversight by the trial court that had earlier indicated in open court to both parties that it was necessary to file the written stipulation. The trial court proceeded to conduct a full hearing and entered a well-considered judgment order, clearly believing that counsel could be trusted with the housekeeping matter of the stipulation. The result is also unfortunate since Marilyn did not object at trial to this oversight and only objects on appeal as a tactical matter to vacate the court’s adverse findings against her. However, because it involves a question of jurisdiction, the question may be raised at any time. See In re Estate of Randell (1973), 12 Ill. App. 3d 640, 298 N.E.2d 735.

Having found that the trial court lacked jurisdiction to dissolve the parties’ marriage, we need not consider the remaining contentions raised by the respondent.

The judgment of the circuit court of La Salle County is vacated.

Vacated.

McCUSKEY and SLATER, JJ., concur.


author: JUSTICE BOWMAN

text:
    NORTHERN TRUST COMPANY, as Guardian, Plaintiff-Appellant, v. BRENTWOOD NORTH NURSING AND REHABILITATION CENTER, INC., Defendant-Appellee (Orsini Nursing Agency, Ltd., et al., Defendants).
    Second District
    No. 2 — 91—0494
    Opinion filed March 3, 1992.

      Allen M. Anderson and William F. Castillo, both of Ariano, Anderson, Bazos, Hardy, Kramer & Castillo, P.C., and Josette Skelnik, of Robinson & Skelnik, both of Elgin, for appellant.
    Marc F. Benjoya, Timothy J. Ashe, and Kathlein K. Krider, all of Cassiday, Schade & Gloor, of Chicago, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, the Northern Trust Company, appeals the order of the circuit court which imposed confidentiality upon the parties and the attorneys to this action. Plaintiff contends that the trial court erred by imposing a term not included in the settlement agreement and that the order is unconstitutionally broad. Defendant Brentwood North Nursing and Rehabilitation Center, Inc. (Brentwood), contends that the order was a valid use of the court’s inherent authority to protect the parties to the litigation.

Plaintiff is the guardian of the estate of a disabled person. She was injured in a boating accident and has no control over her body although she remains fully conscious. While she was a patient at Brentwood, a nurse’s aide, Ravindrakumar Patel, was assigned to bathe her. Instead, while clothed, he “dry humped” her, for which he was convicted of criminal sexual assault. The facts surrounding his conduct were published in our opinion affirming his conviction. (See People v. Patel (1991), 213 Ill. App. 3d 688.) Patel was an employee of defendant Orsini Nursing Agency, Ltd., and was assigned to perform services at Brentwood.

Plaintiff brought a complaint against these defendants alleging negligence, willful and wanton conduct and violations of the Nursing Home Care Reform Act of 1979 (Ill. Rev. Stat. 1987, ch. 111½, par. 4151—101 et seq.). After a year of litigation and discovery, on October 22, 1990, the trial court entered an order stating as follows: “This matter coming before the Court for trial, the Court being appraised [sic] that settlement has been reached in this cause, it is hereby ordered that the above entitled cause is dismissed for want of prosecution, subject to the entry of a settlement agreement.” (Emphasis in original.) After obtaining approval from the court administering the probate estate, plaintiff petitioned the trial court for approval of the settlement. On November 16, 1990, the trial court entered an order approving the cash settlement.

On January 8, 1991, defendant Brentwood filed a motion to dismiss in which it alleged that the parties had signed a stipulation to dismiss the cause with prejudice. Brentwood also alleged that one of the major factors in its decision to settle was the purpose of avoiding a lengthy and public trial. Brentwood requested the court to order that the terms of the settlement and the facts underlying the action be kept confidential by the parties and their attorneys.

Plaintiff objected to the entry of the confidentiality order and supported its objection with certain documents. Plaintiff attached defense counsel’s letter in which defense counsel transmitted the proposed release, which included a covenant of confidentiality. Plaintiff attached its own counsel’s responding letter in which he objected to the confidentiality and stated that the term had never been a subject of the negotiations. Plaintiff then introduced defense counsel’s subsequent letter in which he stated that he removed the term from the proposed release. Plaintiff finally submitted the executed release, which did not include the confidentiality term.

Nonetheless, the trial court denied plaintiff’s objection and entered the judgment dismissing the cause. The trial court further included an order which stated: “[T]he facts and circumstances surrounding the litigation and the terms and conditions of the settlement agreement shall remain confidential as to all parties and their attorneys and shall not be disclosed in any manner. All parties and counsel are bound by this confidentiality order.” (Emphasis in original.) Plaintiff moved the court to reconsider the order on the ground that the order was an unconstitutional infringement of the freedom of speech. Plaintiff supported the motion by showing the facts were already public and submitted newspaper articles which described the underlying conduct and the criminal action. The motion was denied, and plaintiff Northern Trust Company filed a notice of appeal.

Plaintiff raises two issues: first, whether the trial court erred by entering a term which was expressly excluded from the settlement; and, second, whether the order is a violation of the right to the freedom of speech. We also note here that plaintiff does not have standing to raise arguments relating to the detriment suffered by its attorneys from the order because they did not file a notice of appeal. See Sherman Hospital v. Wingren (1988), 169 Ill. App. 3d 161,165.

A settlement agreement may not be altered as to material terms without the consent of both parties, and a court may not alter an agreement on its own accord. (Exchange National Bank v. Sampson (1989), 186 Ill. App. 3d 969, 972.) The ordinary rules of contract construction apply to settlement agreements, and valid assent to the terms of an agreement may be inferred from the conduct of a party. (186 Ill. App. 3d at 972.) It is the function of the court to determine the intent of the parties and to execute it, but it is not the function of a court to modify the document or create new terms different from those to which the parties have agreed. Northern Trust Co. v. Tarre (1981), 86 Ill. 2d 441, 450.

While plaintiff states that the confidentiality term was expressly excluded by the agreement, the release is actually silent about it. Plaintiff introduced parol evidence to show that the confidentiality clause was excluded. Ordinarily, parol evidence may not be used to consider the meaning of a contractual term when the terms are clear and unambiguous. (Lewis v. Loyola University (1986), 149 Ill. App. 3d 88, 92.) However, parol evidence is admissible to show a condition precedent to the existence of a contract. (Reavy Grady & Crouch Realtors v. Hall (1982), 110 Ill. App. 3d 325, 329.) The words of a release will not prevent inquiry into the circumstances to ascertain whether the release was fairly made and accurately reflected the intentions of the parties. (Gutierrez v. Schultz (1982), 109 Ill. App. 3d 372, 375.) Where a contract is not expressive of the complete agreement and understanding of the parties, consideration of antecedent proceedings does not serve to vary the contract terms but exemplifies the terms of the agreement. Furthermore, all relevant evidence may be considered to determine whether a particular writing is the complete agreement of the parties. (Lewis, 149 Ill. App. 3d at 93.) Thus, the court could consider plaintiff’s evidence that the confidentiality was excluded by their agreement.

Defendant contends that because the trial court has the inherent authority to enter a “gag order” with or without the consent of the parties (see Seattle Times Co. v. Rhinehart (1984), 467 U.S. 20, 81 L. Ed. 2d 17, 104 S. Ct. 2199; In re a Minor (1989), 127 Ill. 2d 247; In re Marriage of Granger (1990), 197 Ill. App. 3d 363, 373; Cummings v. Beaton & Associates, Inc. (1989), 192 Ill. App. 3d 792, 798), and the settlement agreement did not prohibit defendant from seeking an order, defendant could legally apply for such an order. With constitutional exceptions, the trial court has the authority to protect the privacy of those parties appearing before it. (In re a Minor, 127 Ill. 2d at 267-68.) For example, courts may restrict the dissemination of materials obtained through court-ordered discovery; the restraint prevents abuse of process and prevents the disclosure of private information. (Seattle Times, 467 U.S. at 34-35, 81 L. Ed. 2d at 28, 104 S. Ct. at 2208-09.) The court may also order that private information or trade secrets not be disclosed. (Cummings, 192 Ill. App. 3d at 798.) The public’s right to inspect court records is not absolute. 192 Ill. App. 3d at 798.

Defendant contends that plaintiff failed to assert that the absence of a confidentiality order was such an integral part of the settlement that, if the order was entered, there was no agreement. We disagree; the antecedent proceedings show that the striking of the confidentiality clause was a condition precedent to plaintiff’s acceptance of the contract. The term was not a condition precedent for defendant. Defendant contends that there is no evidence showing it agreed to abandon its efforts to obtain confidentiality. Thus, at most, defendant assumed the risks of taking its chances with the trial court and petitioning for a gag order. However, the evidence shows that it acquiesced to the request to exclude the term from the release. Defendant further argues that plaintiff should not be able to reap the benefits of the settlement by accepting cash while destroying defendant’s purpose in settling. However, defendant did not view the term as important as the termination of the litigation because it agreed to the release without the term. The parol evidence shows that terms of the contract formed by the parties excluded the confidentiality clause. Thus, the trial court should not have altered the terms of the contract by entering the gag order.

Because we reverse on the first issue, we decline to rule on the issue of whether the order was an unconstitutional prior restraint of plaintiff’s right of free speech.

Finally, defendant has moved this court to issue this opinion as an unpublished order pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23). However, the rule mandated by our supreme court states that we shall issue an opinion when the case involves an important new legal issue or modifies an existing rule of law or when the decision is of substantial public interest. (134 Ill. 2d R. 23.) We find that this case develops a legal issue because it informs practitioners that they must seek confidentiality orders either through a prior petition to the court or through agreement and not by the method employed by defendant in derogation of an agreement. Moreover, the additional detriment suffered by defendant by the publication of this opinion is slight. This opinion contains no facts which were not already published in newspapers or in the criminal proceeding against Patel. Moreover, it appears that defendant did not ask the trial court to seal the record, and the other facts remain a matter of public record.

For the above reasons, the order of the circuit court is reversed.

Reversed.

INGLIS, P.J., and WOODWARD, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SHERMAN M. MORISSETTE, Defendant-Appellee.
    Fourth District
    No. 4 — 91—0464
    Opinion filed March 5, 1992.

      Thomas J. Brown, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Defendant Sherman M. Morissette was indicted by a Livingston County grand jury for the offenses of attempt (escape) (Ill. Rev. Stat. 1989, ch. 38, par. 31—6), unlawful possession of contraband in a State penal institution (Ill. Rev. Stat. 1989, ch. 38, par. 31A—1.1(b)), and unlawful possession of a weapon by a person within the custody of a Department of Corrections (DOC) facility (Ill. Rev. Stat. 1989, ch. 38, par. 24—1.1(b)). On June 24, 1991, following a hearing, the court granted defendant’s motion to dismiss the indictment. The State appeals, contending that each of the three counts of the indictment sufficiently stated a criminal offense. We affirm the dismissal of counts II and III but reverse the dismissal as to count I.

A pretrial motion to dismiss an indictment is governed by the standards set forth in section 114—1 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 114—1). (People v. Pujoue (1975), 61 Ill. 2d 335, 339, 335 N.E.2d 437, 440.) That section provides in part:

“(a) Upon the written motion of the defendant made prior to trial *** the court may dismiss the indictment, information or complaint upon any of the following grounds:
* * *
(8) The charge does not state an offense ***.” Ill. Rev. Stat. 1989, ch. 38, par. 114—1(a)(8).

The standard of review is not, as argued by the State, whether the “entire trial record, including police reports and a bill of particulars, operate to bar subsequent prosecution.” (People v. Walker (1977), 47 Ill. App. 3d 737, 740, 365 N.E.2d 428, 431.) That standard has been said to be applicable only when the indictment was challenged for the first time on appeal (Pujoue, 61 Ill. 2d at 339, 335 N.E.2d at 440), where a complaint would be sufficient if it “apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.” In addition, the trial court should not look at the entire record, including the “voluminous investigative reports” to determine the sufficiency of the indictment. Rather, the court should look only at the charging instrument when deciding if it should dismiss a charge for failure to state an offense. People v. Stoudt (1990), 198 Ill. App. 3d 124, 125, 555 N.E.2d 825, 826.

Count I of the indictment charged defendant with the offense of attempt (escape) in that he, with the intent to commit the offense of escape (Ill. Rev. Stat. 1989, ch. 38, par. 31—6):

“[Performed a substantial step toward the commission of that offense, in that he, having been convicted of a felony, to-wit: Armed Robbery, in violation of Illinois Revised Statutes, Chapter 38, Section 18—2, obtained items to be used in an escape from the Pontiac Correctional Center, Pontiac, Illinois, a penal institution, in violation of Section 8 —4(a) of Chapter 38 of the Illinois Revised Statutes, a Class 3 felony.”

The trial court noted that “mere preparation” to commit a criminal offense does not constitute a substantial step for the purposes of the attempt statute. (People v. Terrell (1984), 99 Ill. 2d 427, 433, 459 N.E.2d 1337, 1340.) The court further noted, on the other hand, that it was not necessary to prove the defendant had performed the last deed immediately preceding that which would render the substantive crime complete. (Terrell, 99 Ill. 2d at 433, 459 N.E.2d at 1340.) A determination of what constitutes a “substantial step” must be made in each attempt case by evaluating the unique facts and circumstances of the particular case. The essential question which must be decided by the trier of fact is whether, given the intent to commit a specific offense, the defendant performed acts bringing him in “ ‘ “dangerous proximity to success” ’ ” in carrying out his intent. Terrell, 99 Ill. 2d at 434, 459 N.E.2d at 1341, quoting People v. Paluch (1966), 78 Ill. App. 2d 356, 360, 222 N.E.2d 508, 510, quoting Hyde v. United States (1912), 225 U.S. 347, 388, 56 L. Ed. 1114, 1134, 32 S. Ct. 793, 810 (Holmes, J., dissenting).

Here, however, the issue for us to decide is not what proof is required, but what must be alleged to state a charge. Count I did state that defendant intended to escape, and pursuant to that intent he took a substantial step toward escaping by obtaining items to be used in that escape. Whether the circumstances under which defendant acquired the items to be used in the escape, in fact, brought him “in dangerous proximity” to committing an escape so as to constitute a substantial step toward commission of escape would depend on the proof and would be a question of fact unless the proof completely failed. If the defendant needed more particular knowledge in order to prepare a defense to count I, he should have used the provision of section 111 — 6 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 111—6) and sought a bill of particulars.

In count II of the indictment, the State charged defendant with the offense of unlawful possession of contraband in a State penal institution, in that defendant possessed:

“[A] hacksaw blade, in the Pontiac Correctional Center, Pontiac, Livingston County, Illinois, a state penal institution, in violation of Section 31A—1.1(b) of Chapter 38 of the Illinois Revised Statutes, a Class 1 felony.”

The trial court determined that a hacksaw blade was not an item of contraband as defined in section 31A—1.1 of the Criminal Code of 1961 (Criminal Code). That section defines contraband as alcoholic liquor, cannabis, controlled substances, hypodermic syringes, weapons, or firearms. (Ill. Rev. Stat. 1989, ch. 38, par. 31A—1.1.) The only definition of contraband applicable here would be a weapon, or more specifically:

“[A]ny knife, dagger, dirk, billy, razor, stiletto, broken bottle, or other piece of glass which could be used as a dangerous weapon. Such term includes any of the devices or implements designated in subsections (a)(1), (a)(3) and (a)(6) of Section 24—1 of this Act, or any other dangerous weapon or instrument of like character.” (Ill. Rev. Stat. 1989, ch. 38, par. 31A— l.l(c)(2)(v).)

Sections 24—1(a)(1), (a)(3), and (a)(6) of the Criminal Code include weapons such as a bludgeon, “black-jack,” “slung-shot,” sand-club, “sand-bag,” metal knuckles, throwing star, or any knife, commonly referred to as a switchblade knife, a ballistic knife, tear gas or other noxious liquid gas, or any device or attachment used or intended for use in silencing the report of any firearm. Ill. Rev. Stat. 1989, ch. 38, pars. 24—1(a)(1), (a)(3), (a)(6).

The trial court found that a hacksaw blade was clearly not any of the items specifically listed in section 31A or 24—1 of the Criminal Code and concluded the State must have been relying on that portion of the definition which states “or any other dangerous weapon or instrument of like character.” Ill. Rev. Stat. 1989, ch. 38, par. 31A— l.l(c)(2)(v).

Dangerous weapons are divided into two categories: weapons which are dangerous per se and those which become dangerous because of the way they are used. The trial court noted, for example, a firearm is a dangerous weapon per se, but a common object such as a fingernail clipper is not considered dangerous unless it is used with the point of the fingernail file, a part of the clipper, pressed against a victim’s throat. (People v. Robinson (1978), 73 Ill. 2d 192, 383 N.E.2d 164.) The court did not consider a hacksaw blade, which is a common tool, to be dangerous per se, and in the absence of allegations of use which would make it a dangerous weapon, there was no criminal offense stated.

The State maintains that the purpose of the statute is to prohibit even the innocent possession of items that are likely to be hazardous in a penal setting. (People v. Ryan (1987), 117 Ill. 2d 28, 32-33, 509 N.E.2d 1001, 1002.) The State argues that a hacksaw blade is clearly likely to be hazardous in a penal setting and, contrary to the trial court’s statements, is not a common tool in a prison.

In Ryan, the defendants were inmates at Menard Correctional Center and were charged with possession of homemade weapons fashioned from a metal rod and sharpened into what was described as a dagger, dirk or pick. One defendant was charged with possession of two homemade knives, each about seven inches long and made from pieces of Plexiglas. The supreme court noted that the informations in each case described the weapon that was found and characterized it as “ ‘a dangerous weapon or deadly instrument.’ ” (Ryan, 117 Ill. 2d at 38, 509 N.E.2d at 1005.) The court found this to be sufficient notice of that element of the offense.

Here, however, the indictment did not describe the hacksaw or allege it was a dangerous weapon or deadly instrument. Thus, absent the allegations of such description or use, an indictment listing a tool which is not dangerous per se is insufficient. The trial court properly dismissed count II of the indictment.

Count III of the indictment charged defendant with the unlawful possession of a weapon by a person in the custody of a DOC facility. It charged defendant with possession of:

“[A] hacksaw blade while confined in the Pontiac Correctional Center, Pontiac, Illinois, a penal institution which is a facility of the Illinois Department of Corrections, in violation of Section 14—1.1(b) of Chapter 38, (Class 1 Felony) of the Illinois Revised Statutes.”

The trial court dismissed count III, based on its conclusion that “a hacksaw blade is not defined as a dangerous weapon anywhere in that section.” The court determined that, in order to fall under that section’s definition of “other dangerous or deadly weapon or instrument of like character,” there would have to be an allegation of use which made it a dangerous weapon. The court concluded count III failed to state a charge for the same reasons as set forth with respect to count II and that it also should be dismissed.

In this count, as in count II, the allegation was not sufficient to allege the hacksaw blade was a dangerous weapon or instrument of like character. A hacksaw blade is not dangerous per se, and “the unlawful weapons statute is not intended to make the possession of every tool, implement, or sporting device which has the potential to inflict serious bodily harm an unlawful weapon.” (City of Pekin v. Shindledecker (1981), 99 Ill. App. 3d 571, 574, 426 N.E.2d 13, 15.) The trial court properly dismissed count III for failing to state an offense.

Accordingly, for the reasons stated, we affirm the part of the judgment dismissing counts II and III and reverse the portion of the dismissal of count I. We remand to the circuit court for further proceedings.

Affirmed in part, reversed in part, remanded.

COOK and LUND, JJ., concur.


author: JUSTICE McLAREN

text:
    JAMES H. STACKE, as Ex’r of the Estate of George A. Bates, Deceased, Plaintiff-Appellee, v. MARY LUISE BATES, Defendant (Narusis and Narusis et al., Petitioners-Appellants).
    Second District
    Nos. 2 — 91—0360, 2 — 91—0689 cons.
    Opinion filed March 13, 1992.
    Regina F. Narusis, of Narusis & Narusis, of Cary, Jerome Marvin Kaplan, of Batler & Schwartz, of Buffalo Grove, and James F. Driscoll, of Driscoll & Driscoll, of Schaumburg, for appellants.
    Robert J. Wagner, of Bishop, Callas & Wagner, of Crystal Lake, Stephen H. Katz, of Schiller, DuCanto & Fleck, of Lake Forest, and Robert M. Ward, of Allegretti & Witcoff, Ltd., and James J. Carroll, of Sidley & Austin, both of Chicago, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Petitioners Narusis & Narusis, Jerome Kaplan, and Driscoll & Driscoll are legal representatives who appeal from (1) the trial court’s finding that it had no jurisdiction to hear a fee petition (Ill. Rev. Stat. 1989, ch. 40, par. 508), and (2) the trial court’s dismissal of a section 2 —1401 petition. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401.) Petitioners invoked the fee petition and section 2—1401 as a means of obtaining reconsideration of a previously granted attorney fee petition which, it is alleged, cannot be enforced due to the judgment debtor’s disappearance. These two issues were raised as separate appeals but have been consolidated in the interest of judicial economy. We affirm.

This appeal follows many years of litigation over the dissolution of the marriage between 39-year-old Mary Luise Bates and her wealthy husband, George A. Bates, who was in his 70s. Arguments were brought before the trial, appellate and supreme courts of Illinois. In the end, George died and Mary was left with neither property nor maintenance to show for her efforts. Now, before us today, Mary’s divorce lawyers seek compensation from George’s estate for services they rendered on Mary’s behalf. We will provide a brief history before addressing the issues on appeal.

On April 30, 1980, alleging acts of mental cruelty, George A. Bates sued to dissolve his marriage with Mary Luise Bates. Mary, represented by the law firm of Narusis & Narusis (Narusis), opposed dissolution and counterpetitioned for legal separation.

The trial court denied George’s request and granted Mary’s petition for a legal separation. However, the trial court refused Mary’s request that all of Narusis’ fees and expenses ($137,179.30) be assessed against George. Instead, the trial court ordered that George pay $50,000 to Narusis and that Mary pay the balance. George appealed the trial court’s refusal to dissolve the marriage. Mary cross-appealed the attorney fees ruling, claiming that George should be made to pay all her fees.

On appeal, we ruled that a no-fault divorce should have been granted to George. Because such ruling necessitated a redetermination of attorney fees, we did not then address the assessment of fees. In that appeal, Mary was represented by Narusis and Jerome Marvin Kaplan (Kaplan). In re Marriage of Bates (1986), 141 Ill. App. 3d 566.

After the first Bates appeal, Mary retained the law firm of Driscoll & Driscoll (Driscoll) to prosecute a petition for leave to appeal to the supreme court. When the petition was denied, Driscoll, along with Narusis, continued to represent Mary in the trial court.

On September 30, 1986, the trial court on remand entered a bifurcated judgment of dissolution in accordance with the appellate court’s mandate. George died on December 28, 1986, after the bifurcated judgment of dissolution was entered but before a final adjudication of property distribution and attorney fees. After George’s death, the trial court erroneously vacated the judgment of dissolution and declared that the dissolution proceedings had abated. The estate of George Bates appealed this decision.

On December 3, 1987, we remanded the case with instructions to reinstate the judgment of dissolution instanter and to conduct the hearings on property distribution and attorney fees which had been mandated in the first appeal. In re Marriage of Bates (1987), 163 Ill. App. 3d 893.

On October 31, 1988, after the marriage had been dissolved, both parties submitted briefs with respect to the division of property, cash, and attorney fees. On December 1, 1988, a hearing was held on the matter of attorney fees. Among those who requested relief: Driscoll sought $58,787.28; Narusis sought $142,369.45; and Kaplan sought $6,000. The executor opposed the assessment of any of these fees against the estate.

On August 31, 1989, the trial court denied Mary’s request that the estate pay her attorney fees and expenses. On September 21, 1989, the trial court entered a final judgment which contained a ruling to this effect. The relevant language was as follows:

“The Respondent [Mary Luise Bates] shall be solely responsible for the payment of her attorney’s fees and costs incurred by her in these proceedings. The Estate of George A. Bates shall be solely responsible for the payment of its own attorney’s fees and costs, as well as any debts or obligation of the Estate that may exist at this time.”

The estate filed an appeal for, among other things, the substantial award of maintenance in gross to Mary. Narusis, Driscoll and Kaplan sought a judgment against Mary for their fees. The trial court granted this motion.

On July 20, 1990, we entered our third opinion in this matter and reversed the post-death maintenance awards. We affirmed all other portions of the supplemental judgment of the trial court which included the order that Mary be responsible for her own attorney fees. Stacke v. Bates (1990), 200 Ill. App. 3d 85.

On October 10, 1990, Mary filed a motion asking this court to reconsider regarding the assessment of attorney fees. Citing Mary’s failure to file a cross-appeal on this matter, we granted the estate’s motion to strike Mary’s motion to reconsider.

While Mary’s motion to reconsider was still pending before this court, she filed a petition for leave to appeal in the supreme court citing error for our failure to remand the case to the trial court for reconsideration of attorney fees. Our supreme court denied Mary’s petition for leave to appeal on this issue. Stacke v. Bates (1990), 135 Ill. 2d 567.

In spite of these rulings, Driscoll, Narusis, and Kaplan filed new fee petitions which asked the trial court to reassess their fees against the estate. The trial court found that it was without jurisdiction to entertain the new fee petitions and therefore struck those petitions. Driscoll, Narusis and Kaplan then filed a section 2—1401 petition in order to obtain relief from a final judgment. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401.) The trial court granted the estate’s motion to strike the section 2— 401 petition, and petitioners appealed. We need go no further in discussing the merits of petitioners’ position. The trial court was barred from considering the attorney fees petitions by the doctrine of res judicata and acted properly in striking the section 2—1401 petition.

In People v. Mamolella (1969), 42 Ill. 2d 69, 72, our supreme court set forth the well-established rule that it is “not within the purpose of a [section 2—1401] proceeding *** to [consider claims] which could have been presented in the trial court and on direct review ***. Such claims which might have been raised, but were not, are waived.” We find particularly applicable the court’s language that “[t]he defendant was represented by an attorney of his own choice and his failure, if any, to exercise care and skill in the trial of the case may not be properly advanced as a basis for reversing the original judgment.” (Mamolella (1969), 42 Ill. 2d at 72.) Although Mamolella is a criminal case, procedurally it is a civil proceeding. The defendant’s conviction of a gambling violation was affirmed on appeal, and certiorari was denied by the supreme court. Defendant’s post-conviction petition to review his conviction was dismissed without a hearing. The supreme court held that the defendant’s post-conviction petition to review his conviction was properly denied without a hearing despite his numerous claims of error below because the claims were made through an attorney who had sufficient opportunity to raise such questions on post-trial motion or on direct review. Mamolella (1969), 42 Ill. 2d 69.

In the present case Mary failed in her attempt to compel the estate to pay her attorney fees and expenses on August 31, 1989. Instead of cross-appealing the denial of these fees, Narusis, Driscoll and Kaplan sought a judgment against Mary. The trial court unsurprisingly granted this motion. Thus, the attorneys rested on their rights and relied upon Mary as their judgment debtor and her expected award of maintenance in gross as their alleged source of payment. However, these attorneys neglected to recognize that this award in gross was subject to review and, indeed, was overturned on appeal. As in Mamolella we do not view these circumstances as affecting fundamental fairness to the extent that a section 2—1401 petition for review should be granted.

In light of (1) our affirmance of the trial court’s order that Mary be responsible for her attorney fees, (2) our refusal to entertain Mary’s motion to reconsider the assessment of attorney fees, and (3) our supreme court’s denial of Mary’s petition for leave to appeal on this matter, the case is, without doubt, res judicata. We hold that a section 2—1401 motion cannot be used as a substitute for appeal, nor can it be used to relitigate matters already validly adjudicated. (See Lacey v. Lacey (1974), 24 Ill. App. 3d 776, 778.) According to Lacey, the purpose of a post-judgment petition for relief is to “bring before the trial court facts not appearing in the record which, if known to the court at the time judgment was entered, would have prevented its entry.” (Lacey, 24 Ill. App. 3d at 778.) We determine that a petitioner’s difficulty in satisfying a judgment is not the type of fact that would prevent the entry of a judgment which petitioners themselves requested.

Petitioners argue that they were not in a position to cross-appeal the issue of attorney fees because they were granted all that they requested when a judgment in their favor was rendered against Mary for attorney fees. We agree that a cross-appeal is only necessary when affirmative relief is requested. (Ashton v. Sweeney (1953), 350 Ill. App. 135, 155.) However, petitioners’ contention that their circumstance did not lend itself to a request for affirmative relief is merit-less.

Petitioners failed to recognize that there were two distinct judgments below which affected the allocation of attorney fees: (1) the judgment favoring the executor, who opposed the assessment of any fees against the estate; and (2) the judgment granting petitioners’ request for the allocation of fees against Mary. The latter, admittedly, was not the proper subject of a cross-appeal because it would simply have sought to sustain the judgment of the trial court. (People v. Mannino (1989), 184 Ill. App. 3d 130, 131.) However, the former did create the necessity of filing a cross-appeal because it gave rise to circumstances which would require a request for the reversal or modification of a judgment below. (Mannino, 184 Ill. App. 3d at 131.) Therefore, in order to preserve their rights to make a claim against the estate of George Bates for attorney fees, petitioners should have cross-appealed the judgment denying such fees at the time the estate sought reversal of the maintenance in gross awarded to Mary. Thus, for the same reason that we denied Mary’s motion to reconsider regarding the assessment of attorney fees in the face of her failure to file a cross-appeal on this matter, we also deny petitioners’ belated request to reexamine this issue. Furthermore, it logically follows that the rationale behind the invalidity of the section 2—1401 petition is the same rationale that would serve to preclude the action for which the section 2—1401 petition was brought, i.e., it was barred by principles of res judicata.

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

Affirmed.

GEIGER and NICKELS, JJ., concur.