author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARRY RODRIGUEZ, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—1022
    Opinion filed September 6, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Elizabeth Burke and Jeffrey M. Howard, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Jean T. McGuire, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, Harry Rodriguez, was indicted for the capital murder of Raymond Carvis, residential burglary, home invasion and armed violence. Indicted with him were Fernando Gomez, Robert Car-dona, Gregory Cardona, Lowell Higgins-Bey and Michael McCastle. The defendant was tried separately and found guilty of murder, residential burglary and home invasion. He was sentenced to natural life without parole for murder, 30 years for home invasion and 15 years for residential burglary.

Two of the codefendants, Fernando Gomez, known as Pee Wee, and Lowell Higgins-Bey, known as Lowdown, testified for the prosecution. Before they testified, the State agreed to drop the capital murder charges against them and recommend four years’ imprisonment for residential burglary.

Gomez, who was 19 years old at the time of trial, testified that he was a former member of the Disciples and Spanish Cobras gangs. He quit the gangs five months before he met the defendant. He was on probation for attempted robbery at the time he testified.

On June 22, 1987, he met McCastle, known as Scandalous, Higgins-Bey, the Cardona brothers, known as Little Coco and Big Coco, and the defendant near a church on Wrightwood in Chicago. At that time the defendant talked about making some money and told Gomez to meet him at the Cardona apartment at 1 p.m. the next day.

At 1 p.m. the next day, Gomez went to the Cardona apartment building at Sawyer and Wrightwood. Outside the building he met the Cardona brothers, McCastle and the defendant. The Cardona apartment building was approximately one block away from the home of Raymond Carvis. The defendant announced that they were going to commit a burglary in the neighborhood.

They left the Cardona apartment, and the defendant told Robert Cardona and Higgins-Bey to walk down the alley behind Sawyer. The defendant, McCastle, Gregory Cardona and Gomez walked north on the sidewalk of Sawyer. At one point the defendant told the other men to stop, and the defendant walked on and turned somewhere. Gomez next saw the defendant as he opened the front door of Carvis’ house. Upon opening the door, the defendant told Gomez, McCastle and Gregory Cardona to come into the house.

When the front door opened, Gomez saw Carvis standing at the bottom of the stairs inside the house. Gomez, McCastle and Gregory Cardona rushed into the house. McCastle, Gregory Cardona and the defendant grabbed Carvis and carried him upstairs. Once upstairs, they carried Carvis to the left side of the staircase. Carvis fought in an attempt to break free.

While the others were wrestling with Carvis, Gomez walked into one of the upstairs rooms to look for property to steal. He walked out of the first room and saw the others were still wrestling with Carvis. Gomez went into a second room looking for things to take and spent 15 minutes there. When he left the second room he saw Higgins-Bey standing at the top of the stairs.

Gomez himself hit Carvis once or twice. Robert Cardona also hit Carvis a few times. Then everybody started hitting Carvis while McCastle held him by the neck.

The defendant then pulled a “butterfly knife” out of his back pocket and stabbed Carvis in the stomach. Gomez saw the defendant stab Carvis once. Carvis moaned and tried to wrestle free after the stabbing. Higgins-Bey, who had been at the top of the stairs, disappeared. After the stabbing, McCastle threw Carvis onto the floor while Gregory Cardona controlled his legs. Gomez and the two Cardonas then went into the second room, and looked for property to steal.

The defendant told them he needed something with which to tie Carvis up. Robert Cardona brought out a necktie and the defendant tied Carvis’ arms behind his back. After tying up Carvis, the defendant and McCastle forced Carvis to his knees. While McCastle held Carvis around the neck, the defendant put his penis near Carvis’ face and buttocks. Gomez then left the house through the front door. He did not take anything from the house. He was in the house for about one half-hour and did not hear or see any dogs in the house.

After leaving the house, he walked to the corner of Sawyer and Milwaukee and watched Carvis’ house. He saw Gregory Cardona leave the house with things in his hands. Cardona put the things in a car and returned to Carvis’ house. Cardona returned to sit in the car, after opening the trunk. Gomez then took the “el” home.

The following day Gomez saw all the other defendants at Diversey and Kedzie. The defendant gave $300 to Gomez, but there was no discussion of what had occurred the day before. He did not see any of the other defendants again until he was arrested two months later on August 29, 1987.

After his arrest, Gomez was questioned by the police, and he subsequently gave a court-reported statement. He admitted that during the police questioning he made up a story about cruising in a car. He told the police that he and the other men drove into an alley near Carvis’ house, went to a McDonald’s and then went to an apartment on Sawyer. He made up this story to avoid talking about the murder.

He also told the police the defendant knocked on Carvis’ door and McCastle and Higgins-Bey grabbed Carvis. He admitted he lied when he said Higgins-Bey was at the front door and that Higgins-Bey kicked Carvis. He explained that he was mad because the police told him that Higgins-Bey had made a statement against him. He did not tell the police that he met with the other men the day before the murder. Nor did he tell the police that he left Carvis’ home alone; he said he and the other men all ran out of the house together.

He agreed with the State’s Attorney’s office to testify; in return for his testimony, the murder charges would be dropped and he would be sentenced to four years’ imprisonment. He knew the agreement was “off” if he lied.

Lowell Higgins-Bey testified that he is a former member of the Milwaukee Kings gang, which was associated with the Disciples and Spanish Cobras, and that he was on probation for robbery at the time of trial. He had also spent time at St. Charles Reformatory for robbery as a juvenile.

On the day before the killing, he saw the defendant, McCastle and the two Cardonas. Gomez was about a half block away from the group when Higgins-Bey arrived. At that time McCastle told him that they were going to make some money the next day and to be around. This was the first time anyone mentioned a burglary.

At approximately 1:30 p.m., on June 23, 1987, he met Robert Car-dona at Sawyer and Diversey. They walked to the Cardona apartment at Wrightwood and Sawyer, where they saw Gregory Cardona, McCastle and the defendant in front of the apartment building. Higgins-Bey and Robert Cardona then walked to Schubert and Spaulding where they bought marijuana dipped in PGP (“Happy Sticks”) for $40. They returned to the Cardona apartment and the defendant, McCastle and the Cardonas smoked the “Happy Sticks.”

Outside the Cardona apartment building, the defendant started talking about making some money by committing a burglary. He told the others it would be nearby, and not to worry about anything. They all started walking north from the Cardona apartment building, and the defendant told him and Robert Cardona to walk in the alley. The other men walked up Sawyer. As Higgins-Bey and Robert Cardona waited in the alley, the defendant opened the back door, made a bird call and waved them in. Higgins-Bey and Robert Cardona then went to the back door and climbed on a little table and some crates to get in the door; there was no porch.

Inside the house, the defendant told Higgins-Bey and Robert Car-dona to wait in the kitchen. A man Higgins-Bey knew as Rudy came out of the door that led to the basement and told the defendant he was going outside to be the “look-out.” Rudy left the house through the front door. Higgins-Bey identified a picture of Rudy Ramirez as the Rudy he saw come up from the basement. He had seen Rudy several times before in the neighborhood. (Rudy was later identified as a person with whom Carvis was having an affair.)

He testified that the defendant then went upstairs. Higgins-Bey and Robert Cardona waited in the kitchen for one or two minutes before proceeding upstairs. He saw the defendant and McCastle at the top of the stairs holding Carvis. McCastle held Carvis’ neck and the defendant wrestled with him. Everyone then ran up and hit Carvis. The defendant pulled a knife out of his pocket and stabbed Carvis. The defendant swung the knife towards the front of Carvis’ body. The knife was a butterfly knife with a seven- or eight-inch blade, and the handle was the same length as the blade.

After the stabbing, Carvis was falling as he was being held by McCastle. After seeing the defendant stab Carvis, Higgins-Bey left the house through the back door. He walked down the alley and went to a church at Kedzie and Albany, where he stayed for an hour until the defendant arrived on foot.

He was arrested for the murder on July 15, 1987. He was questioned by the police and by an assistant State’s Attorney to whom he gave a court-reported statement. In his statement he said the following: the defendant stabbed the victim; he and Robert Cardona bought three “Happy Sticks” for $30; when they returned to the Car-dona apartment, Gomez was there with the other men; and everyone except himself smoked the “Happy Sticks”; he and Robert Cardona waited 5 to 10 minutes in the alley, heard a bird call and went into Carvis’ house. He did not tell the State’s Attorney about the other person named Rudy who was also in Carvis’ house at the time of the incident.

In November 1987 he made an agreement with the State’s Attorney’s office that if he were to testify and tell the truth, he would be sentenced to four years for residential burglary. If he gave false testimony, he would be tried for murder.

Francisco Martinez, who did odd jobs for Carvis, testified that he had known Carvis for about two years, and that only he, Ronald Griggs, and Carvis had keys to the house. He was employed by Carvis and his roommate, Ronald Griggs, to take care of their dogs and garden. He went to Carvis’ house at around 5 p.m. on June 23. He tried to open the front door with his keys, but had difficulty unlocking the door. He knew something was wrong because' he did not hear the dogs barking. Eventually he opened the door and entered; he saw the dogs in the kitchen and noticed the microwave oven on the kitchen floor with a garbage bag over it. Carvis’ body was tied up and lying in a pool of blood on the closet floor.

Chicago police detective William Kaupert arrived at Carvis’ house between 5:30 and 6 p.m. on June 23. Carvis was lying on the second floor in a pool of blood with his arms bound. The blood had begun to coagulate, which indicated to Kaupert that death had occurred a couple hours earlier.

The second-floor bedroom and den appeared to have been ransacked. A cake knife with a broken blade and what appeared to be dried blood near the handle and a steak knife with a serrated edge were found in a drawer in the kitchen.

Ronald Griggs testified that at 12:30 p.m. on June 23 he went to work in Cams’ car. When he returned home at 6:10 p.m. after a call from a neighbor, he found the house ransacked and his stereo and car stolen. The drawer where the police found the knives was not the drawer in which they were normally stored. When Griggs left the house the day of the killing, the knives were in their proper drawer.

Griggs testified that Carvis had a habit of leaving the doors unlocked when he was home. Carvis had two jobs with a rotating schedule, and he was not scheduled to work on June 23.

Officer John Naujokas, a laboratory technician, testified that he recovered two multicolored bedsheets that were wrapped around Carvis’ body, an unusually large knife with a broken blade, and a small steak knife, the knives which were identified by Griggs. The tip of the broken knife was not in the drawer. The broken knife appeared to have been wiped clean. Blood samples were taken from the bathroom wall-switch, the kitchen silverware drawer and Carvis’ wallet. None of the blood samples recovered matched the blood of the defendant. Naujokas also dusted the crime area for fingerprints. The defendant’s prints were not found. The only identifiable prints were those of Carvis on a drinking glass and the telephone.

Doctor Michael Chambliss performed the autopsy on Carvis’ body. Carvis suffered a total of 17 stab wounds and 12 incised wounds. An incised wound is one that is greater in length than in depth. A stab wound is greater in depth than in length. A portion of a knife blade was found in a stab wound in Carvis’ neck. Three of the deep stab wounds in Carvis’ neck could not have been caused by the knife, the tip of which was recovered from Carvis’ neck, because the length of the stab wounds was shorter than the width of the blade. There were five stab wounds in the chest and shoulder areas. There were eight incised wounds to both hands and the right forearm. (The doctor identified these as “defensive wounds,” that is, they were incurred while trying to fend off injury.) There was one stab wound to the abdomen. One stab wound in the chest area penetrated the lung. Another stab wound went through the right lobe of the liver. In the opinion of the doctor, none of the wounds could have been caused by a knife with a serrated edge.

Detective Ernest Halvorsen was assigned to investigate this case. During the investigation, he took oral statements from Higgins-Bey, McCastle and the Cardona brothers. An assistant State’s Attorney and a court reporter later took statements from Higgins-Bey and the Cardona brothers. After taking the statements, Halvorsen obtained and served an arrest warrant on the defendant.

The defense presented three witnesses: Fabian Pagan, Myrna Ortiz and Detective Raymond Schalk. Pagan testified that he lived in the neighborhood, came home from work about 4 p.m., and noticed that Ronald Griggs’ car was parked on the street. His sister-in-law came to his house to tell him that Carvis was dead. After hearing this, he noticed that Ronald Griggs’ car was gone. He did not see who took the car.

Myrna Ortiz was sitting on her sister-in-law’s front porch, across the street from Carvis’ house, between 12:30 p.m. and 5 p.m. on June 23. She did not see anyone enter or leave the house, except Francisco Martinez, who discovered the body. She saw Carvis in his yard earlier that day with his dogs. She saw Griggs’ blue car parked out front but did not see anyone move the car or put things into it.

Detective Ray Schalk talked to Francisco Martinez the day after Carvis died. Martinez told Schalk that he had been instructed by Carvis not to come over until late in the evening on Tuesdays. This was because Mike Vasquez would be there. Martinez did not say that Mike Vasquez had been to Carvis’ house the day he died.

By stipulation it was established that Carvis had type O blood, and examination of the broken blade and broken knife disclosed activity indicative of type 0 blood. The electric wire and the blood taken from the walls had type 0 blood. There was no semen present on the oral or anal swabs taken from Carvis.

The defendant first contends that the testimony of the two accomplices was incredible and, therefore, insufficient to support his conviction. Initially we recognize that the testimony of an accomplice is to be viewed with suspicion. However, the mere fact that a witness is an accomplice and expects leniency does not of itself raise a reasonable doubt. People v. Jackson (1986), 145 Ill. App. 3d 626, 495 N.E.2d 1207.

The defendant relies on People v. Kiel (1979), 75 Ill. App. 3d 1030, 394 N.E.2d 883, and People v. Price (1974), 21 Ill. App. 3d 665, 316 N.E.2d 289, in which the appellate court reversed convictions based on the testimony of accomplices. In Kiel, the accomplice witness was arrested for armed robbery and burglary which occurred two years after the offense for which the defendant was tried. The witness was never prosecuted for those offenses. In rejecting his testimony, the appellate court spoke as follows:

“[The accomplice was] a witness against whom later occurring offenses were dropped, a witness who failed to make known his story for nearly two years after the incident, and then only after being arrested for robbery and burglary, a witness who, trader oath at the time of the preliminary hearing, testified he had no remembrance of the event, a witness whose testimony is inconsistent with other statements and finally, but not the least important, a witness who admitted to the use of dope and mescaline at the time of the occurrence to the point that he was ‘burned out.’ ” Kiel, 75 Ill. App. 3d at 1035-36.

In Price, the accomplice witnesses, who were cousins, testified that they participated in the crime because of threats they received from the defendant and that the defendant had initiated and planned the robbery. Other witnesses, however, contradicted them. The appellate court pointed out the improbabilities and inconsistencies in their testimony. The court also had before it an alibi defense to which the defendant, his father and a co-worker of the defendant testified. The court compared the backgrounds of the accomplices and of the defendant. It noted his stable background, including the fact that he was married and had a child, had been honorably discharged from the service and had no criminal record. In addition, he presented the testimony of. his employer and foreman who testified to his general reputation for truth and veracity.

Factually, Kiel and Price are markedly different from the case before us. There is no inconsistency between the testimony of Gomez and Higgins-Bey. Higgins-Bey’s testimony was not impeached by any previous statements. It was established that both witnesses had identified the defendant in the previous statements. Carvis was found tied with a necktie as Gomez testified. Carvis was found on the second floor where both witnesses testified the defendant and others had taken him. Carvis was stabbed in the abdomen and chest; Gomez testified that the defendant stabbed Carvis in the stomach once; Higgins-Bey said the defendant stabbed Carvis somewhere in the front. Griggs testified that his car was stolen, corroborating Gomez’ testimony. Martinez corroborated Higgins-Bey’s testimony about Rudy Ramirez when Martinez testified that he had seen Rudy Ramirez at Carvis’ house 15 or 20 days before the murder and that Ramirez talked to Carvis about money. Gomez’ testimony that Carvis was wearing the type of robe one wears after a shower was also corroborated. Contrary to the defendant’s argument, Dr. Chambliss’ testimony corroborated, not contradicted, the testimony of Gomez and Higgins-Bey. In addition to his testimony that Carvis suffered a wound to the abdomen, the doctor also testified that the knife with the broken tip could not have caused all the wounds suffered by Carvis. He also established that the second knife found in the kitchen, the steak knife with the serrated edge, could not have caused any of the wounds. Obviously, that testimony necessarily establishes that a third knife was used. Both witnesses testified that the defendant used his own knife. Finally, no reason has been suggested why the witnesses would untruthfully implicate the defendant.

If the testimony of an accomplice satisfied a jury that the defendant is guilty beyond a reasonable doubt, a reviewing court should not disturb the verdict unless it is plainly apparent that the necessary degree of proof is lacking. (People v. Green (1984), 125 Ill. App. 3d 734, 466 N.E.2d 630.) In our judgment it is not plainly apparent that the necessary degree of proof is lacking. The fact finders, who were made aware of all of the infirmities of the testimony of the accomplices, could nonetheless reasonably conclude that Gomez and Higgins-Bey were telling the truth.

Needless to say, we cannot obey the defendant’s urging that we repudiate the pronouncement of the supreme court of Illinois in People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, which held that a reviewing court must view the evidence presented in the light most favorable to the prosecution and then determine whether the evidence could support a finding by any rational trier of fact that the defendant is guilty beyond a reasonable doubt. Under that pronouncement of Collins, the defendant’s argument that he was not proved guilty of murder beyond a reasonable doubt must be rejected.

The defendant next maintains that he was not proved guilty beyond a reasonable doubt of the crime of home invasion. A person may not be convicted of home invasion unless at the time of entry into the home he knows or has reason to know that one or more persons are present. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 11.) The defendant contends that there was no evidence that the defendant knew or had reason to know that Raymond Carvis or anyone else was present when he entered the house.

The jury heard evidence that Carvis left his door unlocked when he was home; that Rudy Ramirez, with whom Carvis was having an affair, was present; that the 23rd was a Tuesday, a day when, according to a statement by Martinez, Carvis would be home and wished to be undisturbed. It is reasonable to infer that Ramirez also knew that Carvis would be home and passed that information on to the defendant. A car of one of the residents, Griggs, was parked outside. (Cf. People v. Redisi (1988), 172 Ill. App. 3d 1003, 527 N.E.2d 684.) The defendant took five men with him, a fact from which a reasonable person could infer that he anticipated meeting resistance from someone in the house. The same observation could be made about the fact that he was armed with a knife. A reasonable person could also infer from the immediate reaction of the defendant upon entering the house and seeing Carvis that the defendant was not surprised to see him. We judge, therefore, that a fact finder could reasonably conclude beyond a reasonable doubt that the defendant knew or had reason to know that someone (other than Ramirez) was present when he entered Carvis’ home.

The defendant next contends that the judge improperly permitted evidence that the State witnesses were former members of gangs. He contends that the evidence left the inference that the defendant was acting as a street-gang leader during the commission of the crime.

The State first argues that review of this issue has been waived by the defendant’s failure to object at trial. The State refers to the fact that the defendant did not object at the time that Gomez and Higgins-Bey were testifying. There is no waiver on this point. The defendant preserved review of this point by his pretrial motion in limine seeking to bar any evidence concerning gangs. However, we find no reversible error in this evidence. Both witnesses said they were no longer gang members. Gomez said that he had left the gangs five months before he met the defendant. No suggestion or insinuation was made that the defendant was or ever had been a gang member. Since the jury heard evidence that the witnesses had been members of gangs but no evidence that the defendant had been a member, the more reasonable conclusion would be that the defendant was not and had not been a gang member. Under the circumstances, the admission of the witnesses that they had been gang members militated against them and in favor of the defendant.

In support of his argument the defendant points to the fact that a police officer testified that he learned of the nicknames of the codefendants through the “gangs.” That evidence was brought out by the defendant. He cannot complain of error he invited. People v. Bell (1972), 53 Ill. 2d 122, 290 N.E.2d 214.

The defendant also assigns as error the prosecutor’s argument that the defendant was the mastermind of the crime, the leader, the one with the plan. The prosecutor also said that the defendant was a “leader of lizards *** he and his lizards killed Raymond Carvis.” First, the evidence justified the remark that the defendant was the mastermind of the crime, the leader and the man with the plan, regardless of any reference to gangs. The prosecutor has the right to make an argument based on the facts or legitimate inferences drawn from the facts. (People v. Cisewski (1987), 118 Ill. 2d 163, 514 N.E.2d 970.) Second, the prosecution’s reference to the defendant as a “leader of lizards” was also invited by the defense attorney’s argument that Gomez and Higgins-Bey were “lizards.” He referred to them as “lizards” on four different occasions.

The defendant next contends reversible error occurred by admission of testimony referring to a statement made by Robert Cardona. Officer Halvorsen testified that Higgins-Bey, Gregory Cardona and Robert Cardona all gave court-reported statements that they signed. The officer first identified the court reporter statement of Higgins-Bey which was taken on July 16. The following occurred:

“Q. The statements that were given by Robert Cardona and Gregory Cardona, they were also court reporter statements, the same type and manner as this?
DEFENSE ATTORNEY: Objection.
THE COURT: Grounds?
DEFENSE ATTORNEY: Relevance.
THE COURT: Overruled.
STATE’S ATTORNEY: Is that correct?
A. The statements given by Robert Cardona and Gregory Cardona are the exact same type of a court-reported type statement which they signed.
Q. After that what did you do next with regards to your investigation?
A. I requested an arrest warrant for Harry Rodriguez.”

The defendant’s claim of error is restricted to the testimony concerning the court-reported statements by the Cardona brothers. No assignment of error is directed toward the testimony of Halvorsen that Robert Cardona made an oral statement “regarding this crime,” that the officer tried to locate specific individuals Cardona told him were involved in the crime, that Halvorsen had another conversation with Robert Cardona the next day and that after that conversation he located Higgins-Bey, McCastle, Gregory Cardona and the defendant.

This issue appears to be one of the most-often recurring in courts of review and continues in spite of the fact that the supreme court has made a specific pronouncement on the question. In People v. Gacho (1988), 122 Ill. 2d 221, 522 N.E.2d 1146, a police officer testified that he had spoken to a victim at a hospital and he and his partner went to look for the defendant. The supreme court rejected the defendant’s claim of error because the police officer did not testify to the substance of the conversation. It expressly held that to permit the officer to testify to the contents of the conversation would be error. 122 Ill. 2d at 248.

In the case before us, the jury had heard what Higgins-Bey had told the police. The effect of the testimony that his statement was the same type and manner as those of Robert Cardona and Gregory Cardona was that they, like Higgins-Bey, had implicated the defendant. In our judgment, the testimony was contrary to the rule of People v. Gacho. However, the defendant has waived any claim of error in Halvorsen’s testimony. The judge specifically asked for the grounds of the objection, and the defendant’s attorney said, “Relevance.” Failure to object on the proper ground waives any assignment of error. See People v. Daniels (1988), 172 Ill. App. 3d 616, 527 N.E.2d 59.

In his reply brief the defendant refers to the State’s closing argument in which the prosecutor referred to this evidence. A defense objection was sustained. That ruling is pertinent for two reasons. First, it is fair to assume that the judge would have sustained a proper objection if made while Halvorsen was testifying and, second, the sustaining of the objection and the judge’s subsequent instruction cured the error made during the argument. See Gacho, 122 Ill. 2d at 249.

The jury had already heard without objection that Robert Cardona had given Halvorsen an oral statement in which he “supplied information regarding this crime” and told him what individuals were involved in the murder. After that he looked for the defendant and others. The evidence of which the defendant now complains gave rise to an inference no more damaging to the defendant than the previous testimony to which no objection was made and is not assigned here as error. Therefore, any error was harmless. Before leaving this point, we wish to express our hope that in the future the State would follow the directions of the supreme court in People v. Gacho and would not persist in skirting, and often violating, the rules of admissibility governing hearsay.

The defendant next maintains that prejudicial error occurred when the judge permitted an amendment to the residential burglary indictment one month before trial. The State maintains that the amendment was to a formal defect in the indictment.

In July 1987, the grand jury returned an indictment charging the defendant and codefendants with murder, home invasion, residential burglary and armed violence. The indictment for residential burglary alleged that the defendant entered the dwelling place of Raymond Carvis with the intent to commit theft. The defendant’s name was erroneously omitted from the residential burglary count of that indictment. The defendant and codefendants were then reindicted. The residential burglary count in the second indictment erroneously described the intended felony as murder, rather than theft. On December 2, 1987, the State moved to amend the residential burglary count of the indictment to change the intended felony from murder to theft. On December 8, the judge allowed the State’s motion to amend the residential burglary count. On January 4, 1988, the judge denied the defendant’s motion for reconsideration of the amendment and the trial began.

Section 111 — 5 of the Code of Criminal Procedure of 1963 provides that an indictment “may be amended on motion by the State’s Attorney or defendant at any time because of formal defects.” (Ill. Rev. Stat. 1985, ch. 38, par. 111 — 5.) The issue is whether the “defect” in the indictment was formal or substantive. We believe it was formal.

In People v. McKendrick (1985), 138 Ill. App. 3d 1018, 486 N.E.2d 1297, two separate indictments charged the defendant with deviate sexual assault. One charged that the defendant compelled an act of oral copulation on August 31, 1982. The second indictment charged that he compelled an act of anal intercourse on November 29, 1982. The complainant testified that the defendant forced her to commit an act of anal intercourse on August 31 and an act of oral copulation on November 29. The court allowed the State to amend both indictments at the close of the case to conform to the evidence. In the first indictment the word “anal” was substituted for “oral,” and in the second indictment “oral” was substituted for “anal.” The appellate court upheld the ruling of the trial court, pointing out that the State “did not alter any essential element of the indictment nor broaden its scope and did not change the offense [] *** and the amendments merely changed the manner in which the offense was committed.” 138 Ill. App. 3d at 1027.

In People v. Doss (1987), 161 Ill. App. 3d 258, 514 N.E.2d 502, the defendant was charged with perjury. The indictment specified that the defendant made a particular statement under oath. It was later learned that the court reporter who testified to that statement before the grand jury had incorrectly transcribed the statement of the defendant which had been recorded on tape. The State was permitted to amend the indictment to allege the correct statement. The appellate court affirmed, holding that the amendment was to a formal defect.

The offense of residential burglary is committed when entry is made with intent to commit any felony or theft. (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 3.) Just as in McKendrick, in which either act alleged constituted deviate sexual assault, so also in this case, residential burglary would have been committed whether the defendant intended to commit murder or a theft. The amendment occurred one month before trial. It realleged the intent to commit a theft. The defendant does not claim, nor do we think he could properly claim, that he was surprised by the amendment. See People v. Coleman (1971), 49 Ill. 2d 565, 276 N.E.2d 721.

The case cited by the defendant, People v. Betts (1979), 78 Ill. App. 3d 200, 397 N.E.2d 106, involved an amendment which changed the very offense with which the defendant was charged. The indictment was changed from delivery of a controlled substance which was a narcotic to delivery of a controlled substance which was not a narcotic. For these reasons, we hold that the judge did not err in permitting the State to amend the indictment.

The last assignments of error are addressed to the defendant’s sentence. He contends that the sentence was excessive in view of his record and rehabilitation potential; that the murder was not accompanied by brutal and heinous behavior and, therefore, the sentence of natural life was improper; that the trial judge’s remarks indicated he considered improper factors; and that the penalty statute for murder is unconstitutional.

The judge first held that the defendant qualified for the death penalty but found that the defendant’s lack of substantial criminal background was a sufficient mitigating factor to prevent its imposition. Contrary to the defendant’s claim here, the judge was correct in determining that the defendant was subject to the death penalty because he had been found guilty of murder committed during a home invasion. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — l(bX6Xc).) The judge then focused on the serious nature of the defendant’s actions, and he expressly rejected the defendant’s arguments in mitigation. He based his sentence on the aggravating factor that the murder was accompanied by brutal and heinous conduct indicative of wanton cruelty and for the further reason that the murder was committed during the course of a home invasion. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(1).) Our affirmance of the conviction for home invasion justifies the sentence without any further discussion. However, we agree with the judge that the murder was exceptionally brutal and the defendant’s behavior was heinous and indicative of wanton cruelty. Carvis’ arms were bound, and he had been stabbed or cut 29 times. The defendant was, in fact, the leader of the attack by six men. We know that he inflicted the first stab wound on Carvis. The fact that the State was unable to prove that he inflicted any of the 28 other wounds is not controlling. (See People v. Wade (1989), 185 Ill. App. 3d 898, 542 N.E.2d 58 (Defendant convicted of felony murder through accountability properly sentenced to a natural life sentence based upon the brutal and heinous behavior of the co-offender).) Even after stabbing Carvis, the defendant taunted him by placing his penis near Carvis’ face and buttocks.

A'trial judge is given wide discretion in sentencing in order to permit reasoned judgments as to the penalty appropriate to the particular circumstances of each case. In addition, the trial judge is not required to detail for the record the process by which he concluded that the penalty he imposed was proper. People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.

We have examined the statements made by the judge before sentencing and conclude that he did not base his decision on consideration of improper factors. We agree with his observations concerning the seriousness of the offense outweighing the fact that the defendant lacked a substantial criminal record. We note also that the defendant’s lack of remorse and calculating approach to the justice system were reflected by his statement to Gomez even after indictment when the defendant was brought to court, “Don’t say nothing, we got the case beat.” It would unnecessarily prolong this opinion to discuss all the cases cited by the defendant and State regarding sentencing. Each case must be decided on its own facts, and reference to the facts of many other cases provides us with scant assistance. Suffice it to say that we find no abuse of discretion in the sentence imposed.

Last, the defendant claims that the penalty statute for murder violates the equal protection clause and the due process clause of both the United States Constitution and the Illinois Constitution. Those same claims were advanced and rejected in People v. Cartalino (1982), 111 Ill. App. 3d 578, 444 N.E.2d 662. The defendant implicitly asks us to refuse to follow Cartalino. We note that Cartalino has been cited with approval in People v. Wade (1989), 185 Ill. App. 3d 898, 542 N.E.2d 58, and People v. Nester (1984), 123 Ill. App. 3d 501, 462 N.E.2d 1011. We agree with the decision and reasoning of Cartalino.

The defendant has pointed out that judgment was inadvertently entered against the defendant on the charge of armed violence which had been dismissed by the State before trial. The judgment of conviction of armed violence, therefore, is vacated, and it is ordered that the mittimus shall be amended to remove the conviction of armed violence.

For these reasons, the judgments of conviction of murder, home invasion and residential burglary are affirmed. The judgment of conviction of armed violence is vacated with directions.

Judgment affirmed in part and vacated in part with directions.

RAKOWSKI, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: JUSTICE COCCIA

license: Public Domain

text:
    REUBEN H. DONNELLEY CORPORATION, Plaintiff and Counterdefendant-Appellee, v. KRASNY SUPPLY COMPANY, INC., Defendant and Counterplaintiff-Appellant.
    First District (2nd Division)
    No. 1—89—2660
    Opinion filed June 25, 1991.

      Richard D. Grossman, of Danne, Crane, Heyman & Simon, of Chicago, for appellant.
    Steven H. Hoeft, Martha V. Sackley, and Jennifer S. Walz, all of McDermott, Will & Emery, of Chicago, for appellee.
   JUSTICE COCCIA

delivered the opinion of the court:

Plaintiff Reuben H. Donnelley Corporation (Donnelley) filed a breach of contract action against defendant Krasny Supply Company, Inc., when defendant failed to pay the cost of an advertisement it placed in plaintiff’s telephone yellow pages directory. Defendant filed a counterclaim for consequential damages, alleging that plaintiff erroneously printed the advertisement with the telephone number of defendant’s competitor. The trial court entered partial summary judgment in favor of plaintiff on the counterclaim, based on an exculpatory clause limiting claims for lost profits. Defendant appeals from that order. On plaintiff’s own motion, its complaint was dismissed. No portion of the suit remains pending below.

The pleadings, affidavits and depositions in the record establish the following. For 15 years prior to 1981, defendant’s owners placed advertisements with plaintiff for various businesses which defendant’s owner operated.

In 1979, defendant bought the name “Krasny Supply Company, Inc.,” when the Krasny Supply Company, a restaurant supply wholesaler, went out of business. Defendant, which had been in the restaurant supply business for many years, began operating a restaurant equipment and supply business under the name “Krasny Supply Company, Inc.”

In 1981, the previous owners of Krasny Supply Company started a new business, named “Krasny & Company.” Krasny & Company was in direct competition with defendant Krasny Supply Company.

In September 1981, defendant Krasny Supply Company placed an advertisement in the 1982 yellow pages. The contract contained the following exculpatory clause:

“IT IS UNDERSTOOD AND AGREED BY [DEFENDANT], IN THE EVENT OF ANY ERRORS OR OMISSIONS ON THE PART OF [PLAINTIFF] IN CONNECTION WITH THE REPRESENTATION REQUESTED OR IN ANY LISTING REFERRED TO ON OR IN CONNECTION WITH SUCH REQUEST, AS TO ANY DIRECTORY ISSUE, THE LIABILITY OF [PLAINTIFF] ARISING FROM SUCH ERROR OR OMISSION IN THE REPRESENTATION REQUESTED SHALL BE LIMITED TO AND IN NO EVENT EXCEED THE AMOUNT PAID THEREFORE ] HEREUNDER WITH RESPECT TO SUCH ISSUE OF THE DIRECTORY. The limitation of liability provided hereunder shall apply no matter how caused or arising, no matter whether same shall constitute a breach of contract or a tort, negligent or otherwise and regardless of the form in which any legal or equitable action may be brought against [plaintiff]. Under no circumstances shall [plaintiff] be liable for special consequential or exemplary damages.”

When the Krasny Supply Company advertisement which defendant had purchased was published by plaintiff, it erroneously listed the telephone number for defendant’s competitor, Krasny & Company. Defendant Krasny Supply Company consequently refused to pay plaintiff the $2,703 cost of the advertisement. Apparently orders meant for defendant Krasny Supply Company were actually given to the competitor, Krasny & Company, due to the erroneous advertisement. This suit followed.

Irving Naiditch, president of defendant Krasny Supply Company, testified at a deposition that in 1982, when he purchased the 1982 advertisement from plaintiff, he objected to the exculpatory clause in the contract. Naiditch asked plaintiff’s salesman whether the exculpatory clause could be amended because he believed plaintiff should be responsible for any error. Plaintiff informed Naiditch that if defendant wanted to place the advertisement, there was no alternative but to sign the contract because there was only one “Red Book,” which is the Chicago area yellow pages. Naiditch testified further that defendant had no choice but to sign plaintiff’s contract because plaintiff had a “monopoly” and defendant had no place else to go for yellow pages advertising. Naiditch also stated that defendant advertised through the yellow pages, direct mail fliers, catalogues, and brochures.

Richard Amend, vice-president of defendant Krasny Supply Company, stated in an answer to plaintiff’s interrogatories that in 1978 or 1979, he also had objected to the exculpatory clause in regard to advertisements he placed with plaintiff for other companies he operated. Defendant was told that the contract was a standard form contract and its language was not negotiable. Amend would have to sign the contract exactly as printed or its advertising would not be accepted.

Plaintiff moved for partial summary judgment, seeking to strike defendant’s counterclaim for lost profits, based on the contract’s exculpatory clause.

On July 7, 1989, the court entered partial summary judgment in favor of plaintiff, finding no triable issue of fact as to the unconscionability of the exculpatory clause.

On August 29, 1989, the court granted defendant’s motion for reconsideration in part, only for the purpose of adding Naiditch’s full deposition transcript to the record. The court also dismissed plaintiff’s complaint on plaintiff’s own motion. The court entered judgment for defendant on the counterclaim to the extent that it relieved defendant from payment of the $2,703 cost of the advertisement. The court left intact its original partial summary judgment order finding no triable issue of fact as to the unconscionability of the contract. Defendant appeals from the August 29, 1989, order.

On appeal, defendant maintains that a triable issue of fact exists as to whether or not the contract was unconscionable.

A motion for summary judgment is properly granted where the pleadings, depositions, admissions and affidavits on file reveal that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 272 N.E.2d 497.

Plaintiff based its motion for summary judgment on the exculpatory clause contained in the contract. Once plaintiff established the existence of a valid exculpatory clause, the burden of production on the motion shifted to defendant.

A party ■ opposing a motion for summary judgment may come forward with counteraffidavits or other documents which establish that genuine issues of material fact exist, thus precluding summary judgment. Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 819, 416 N.E.2d 328, 333.

Defendant responded to plaintiff’s motion for summary judgment by arguing that the exculpatory clause was unconscionable. Defendant Krasny Supply Company, as counterplaintiff, bears the ultimate burden of proof at trial on the elements of its action. Where the issue of unconscionability is alleged, the party alleging the unconscionability has the burden at trial to produce sufficient evidence of unconscionability. Dana Point Condominium Association, Inc. v. Keystone Service Co., a Division of Cole Coin Operated Laundry Equipment, Inc. (1986), 141 Ill. App. 3d 916, 921, 491 N.E.2d 63, 67.

Defendant argues that the “gross disparity of bargaining power” between itself and plaintiff, the “absence of a meaningful choice” of advertisers, and the “unreasonably favorable terms for plaintiff” establish that the exculpatory clause at issue is unconscionable, or a contract of adhesion.

Exculpatory clauses are not favored and must be strictly construed against the benefitting party. (Harris v. Walker (1988), 119 Ill. 2d 542, 548, 519 N.E.2d 917.) Nevertheless, private parties to a contract may allocate the risk of negligence as they see fit and exculpatory clauses are not violative of public policy as a matter of law. (McClure Engineering Associates, Inc. v. Reuben H. Donnelley Corp. (1983), 95 Ill. 2d 68, 447 N.E.2d 400.) In the absence of legislation to the contrary, courts will not interfere with contracts containing exculpatory clauses, unless there is a defect in the contract negotiation process such that a disparity in bargaining power denied a party the absence of meaningful choice. (McClure Engineering Associates, Inc. v. Reuben H. Donnelley Corp., 95 Ill. 2d 68, 447 N.E.2d 400.) Absent such a defect, the contract will be enforced as written and a court will not set aside the contract merely because that agreement later turns out to be a bad bargain for one of the parties. Dana Point Condominium Association, Inc. v. Keystone Service Co., 141 Ill. App. 3d 916, 491 N.E.2d 63.

Our supreme court, with one dissenting justice, has held that the inclusion of an exculpatory clause in a yellow pages advertisements contract does not violate public policy. McClure Engineering Associates, 95 Ill. 2d at 72-73.

We go on to determine, therefore, whether the record reveals any factual questions regarding a disparate bargaining position.

In McClure Engineering Associates, the court upheld a directed verdict in favor of defendant Donnelley on the basis of plaintiff’s failure to establish that an exculpatory clause in its advertising contract was the result of unconscionability. The court held that plaintiff’s failure to show factual support for a claim of unconscionability properly resulted in a directed verdict for Donnelley.

In McClure, the court agreed with numerous jurisdictions which held that “yellow pages advertising is a nonregulated activity, [and refused] to find unconscionable bargaining, and [upheld] the exculpatory clauses used in such contracts.” (McClure Engineering Associates, 95 Ill. 2d at 74 (and the 16 cases cited therein).) We follow the holding in McClure under the facts before us here.

A contract is unconscionable where it is improvident, oppressive or totally one-sided. (Streams Sports Club, Ltd. v. Richmond (1983), 99 Ill. 2d 182, 191, 457 N.E.2d 1226.) Relevant factors include gross disparity in bargaining positions of the parties together with terms unreasonably favorable to the stronger party. (Ahern v. Knecht (1990), 202 Ill. App. 3d 709, 716, 563 N.E.2d 787.) Courts may look at the commercial experience of the parties in determining whether the aggrieved party had a meaningful choice when faced with unreasonably unfavorable terms. Ahern v. Knecht, 202 Ill. App. 3d 709, 563 N.E.2d 787.

It is undisputed here that defendant read and understood the exculpatory clause. Both parties have extensive commercial experience, and defendant has been advertising in plaintiff’s yellow pages for over 15 years. There is nothing in the record showing a disparate bargaining position. Moreover, the mere disparity of bargaining power is not sufficient grounds to vitiate contractual obligations. Streams Sports Club, Ltd. v. Richmond, 99 Ill. 2d 182, 457 N.E.2d 1226.

Furthermore, in regard to whether the terms were unreasonably unfair to defendant, plaintiff effectively points out that its advertisers receive the benefit of a lower price for advertising than they would if liability for consequential damages were not limited. Thus, the contractual limitation is commercially reasonable. Where the advertising rates are based on the existence of limited liability created by the exculpatory contract clause, there is not the type of one-sidedness that arises to the level of oppression. See University Hills Beauty Academy, Inc. v. Mountain States Telephone & Telegraph Co. (1976), 38 Colo. App. 194, 196, 554 P.2d 723, 725.

In addition, we note the record shows that alternative forms of advertising were available. (See Wille v. Southwestern Bell Telephone Co. (1976), 219 Kan. 755, 763, 549 P.2d 903, 909.) This further establishes the absence of unequal bargaining power.

Defendant relies primarily upon Naiditch’s deposition testimony that the yellow pages advertising was a monopoly. Naiditch’s unsupported assertion is insufficient to establish an issue of fact. In a summary judgment proceeding, a formal deposition may serve in place of an affidavit. (134 Ill. 2d R. 212(a)(4).) An affidavit in a summary judgment proceeding shall be made on personal knowledge and be based on particular facts, and shall not consist of conclusions, but of facts admissible in evidence. (134 Ill. 2d R. 191(a).) Naiditch’s unsupported assertions do not meet this standard. The statements are unsupported by specific facts. In determining whether factual issues exist for purposes of a summary judgment motion, the court must ignore personal conclusions, opinions and self-serving statements and consider only facts admissible in evidence. (Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 515 N.E.2d 1047; Jaffe v. Fogelson (1985), 137 Ill. App. 3d 961, 485 N.E.2d 531.) To the extent that the claim of monopoly is a lay opinion intended to illustrate that there was only one yellow pages supplier in the market, it is unpersuasive on the issue of whether a material fact exists on the issue of disparate bargaining power. (See Certified Mechanical Contractors, Inc. v. Wight & Co., 162 Ill. App. 3d at 402-03, 515 N.E.2d at 1054.) Furthermore, there are no additional affidavits or depositions introduced by defendant Krasny Supply Company to support its assertion of “monopoly.”

While defendant is not required to prove its case at the summary judgment stage, it bears the burden of presenting a factual basis which would at least arguably entitle it to judgment in its favor. Wooding v. L & J Press Corp. (1981), 99 Ill. App. 3d 382, 425 N.E.2d 1055.

We conclude that defendant has failed to produce facts tending to support its claim of unconscionability. It has failed to provide affidavits, depositions or other documents in the record which might show sufficient facts to withstand a motion for summary judgment.

We hold that the trial court properly entered partial summary judgment in favor of plaintiff on the issue of whether the exculpatory clause barred the consequential damages sought by defendant in its counterclaim.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

SCARIANO, P.J., and DiVITO, J., concur.


author: JUSTICE GREIMAN

text:
    LYNNE DeHEER-LISS, Plaintiff-Appellant and Cross-Appellee, v. EUGENE F. FRIEDMAN et al., Defendants-Appellees and Cross-Appellants.
    First District (3rd Division)
    Nos. 1—89—3251, 1—90—0646 cons.
    Opinion filed June 28, 1991.
    Rehearing denied May 5, 1992.

      Rosenthal & Schanfield, of Chicago (Robert R. Tepper and Lynn M. Esp, of counsel), for appellant.
    Eugene F. Friedman, Ltd., of Chicago (Eugene F. Friedman, of counsel), for appellees.
   JUSTICE GREIMAN

delivered the opinion of the court;

Following a bench trial, plaintiff, Lynne DeHeer-Liss, appeals from an adverse decision with respect to her complaint to recover overtime and other benefits due her as a result of her employment as a legal secretary. Defendants, Eugene F. Friedman, Gail T. Friedman and Eugene F. Friedman, Ltd., appeal from a dismissal of their counterclaim and petition for attorney fees under Supreme Court Rule 137 (134 Ill. 2d R. 137) and sanctions under Supreme Court Rule 375 (134 111. 2d R. 375) relating to frivolous appeals.

The plaintiff filed a two-count complaint. Count I alleged that defendants had entered into an oral employment contract with plaintiff, for which she was to receive in exchange for secretarial services: (a) an annual salary of $24,200; (b) overtime compensation of time and a half for time worked beyond a 40-hour work week; (c) medical insurance for plaintiff and her dependent daughter; (d) two weeks’ paid vacation, or two weeks’ salary in lieu thereof; and (e) a $1,000 bonus to be paid in December 1985.

Plaintiff further alleged in her complaint that she fulfilled all of her obligations under the contract but defendants had breached the contract by: (1) failing to pay plaintiff any overtime whatsoever for the entire employment period; (2) failing to provide medical insurance; and (3) failing to pay plaintiff for two weeks of vacation time. Count II of plaintiff’s complaint alleged a violation of the Illinois minimum wage statute. (Ill. Rev. Stat. 1987, ch. 48, par. 1001 et seq.) Plaintiff requested damages of $7,500, plus interest, attorney fees, costs and punitive damages.

Defendants filed an answer, affirmative defenses, and a counterclaim that alleged plaintiff had in her possession confidential work-product documents belonging to defendants. Defendants requested an injunction directing plaintiff to return these documents.

After the bench trial, the trial court orally announced judgment on both counts of plaintiffs complaint in favor of the defendants. The court did not orally rule on defendants’ counterclaim and the separate written order of October 31, 1989, entered by the court granting judgment for defendants on plaintiff’s complaint did not refer to the counterclaim. However, the “half-sheet” entry dated October 31, 1989, and file jacket which is in the record stated that the counterclaim was dismissed “as per d.o. [draft order].”

On November 27, 1989, plaintiff filed her notice of appeal from the October 31, 1989, trial court order. On February 1, 1990, the trial court entered an order which explicitly stated that the notations on the file jacket and October 31, 1989, “half-sheet” entry dismissing defendants’ counterclaim was the true order for purposes of the judgment on October 31, 1989. On March 2, 1990, defendants filed their notice of appeal from this February 1, 1990, order which clarified the prior dismissal of the counterclaim as well as their January 16, 1990, petition for attorney fees.

In support of her complaint, plaintiff testified that she had passed a difficult typing test prior to her employment interview. During the interview, plaintiff and defendant Eugene F. Friedman discussed her employment background and defendant offered plaintiff a position as a legal secretary, agreeing to pay $22,000 per year for a 40-hour work week with standard holidays and sick days and medical insurance for plaintiff and her dependent daughter.

After further discussion, plaintiff testified that she and defendant agreed on an annual salary of $24,200, a bonus of $1,000 in December if plaintiff was still employed at that time, time and a half for all hours worked in excess of 40 hours per week, holidays, sick days and medical insurance for herself and her dependent daughter.

After acceptance of this agreement, plaintiff began work in defendants’ law office on May 15, 1985, and continued in the defendants’ employ until May 15, 1986.

Plaintiff testified that during almost the entire time of her employment, she submitted to defendant time sheets detailing her overtime hours worked. These time sheets were not offered in evidence and defendant denied their existence.

However, plaintiff apparently kept a contemporaneous log of her overtime hours in several ways: in a notebook, on a personal calendar and in a steno book.

For the period of July 1985 through November 1985, overtime hours were kept in a notebook and copied from time sheets given to defendant. Plaintiff “conservatively” estimated that she had worked over 170 hours in overtime.

During December 1985, plaintiff noted 39 overtime hours on a calendar and in a notebook which the court received into evidence.

From time to time during her employment, plaintiff requested overtime pay from the defendant and was put off for a variety of reasons. Particularly in December 1985, she provided defendant with her calculations for the total 1985 overtime and these calculations were received into evidence.

During 1986 she logged an additional 144 hours of overtime in a docket-type book and in a steno book. Again, plaintiff claims that time sheets were submitted to the defendant and kept in his office although unavailable to the plaintiff at a later time.

Bruce Craig, an attorney employed by defendant, corroborated plaintiff’s testimony with respect to the content of the original job interview and the agreement reached with defendant relating to method of payments for time and a half of hours above 40 per week, insurance coverage and vacation time. Craig further testified that plaintiff and defendant had discussed overtime payments in his presence from time to time and recalled that defendant directly instructed plaintiff to “keep track of her hours” when one of the other secretaries in defendant’s employ had resigned, many additional overtime hours by plaintiff being then contemplated by the parties.

Mr. Craig testified that he often saw plaintiff working longer than a nine-hour day at least “several days a week” and that he did not recall plaintiff ever having received overtime pay.

Some months after plaintiff began working, her daughter was in an accident and had cause to be treated at a hospital. At this point, plaintiff discovered that she and her daughter were not covered by health insurance as was agreed to by the parties at the time of the initial job interview.

Thereafter, defendant told plaintiff to secure “some quotes and policy descriptions” from insurance companies.

While there is a good deal of testimony regarding plaintiff’s medical bills and her search for insurance, the question here is whether she was provided the coverage initially agreed upon and was damaged by defendant’s failure to provide such coverage.

At trial, there was some question as to whether the medical bills related to periods prior to the issuance of the agreed medical policy. Both plaintiff and Mr. Craig testified that defendant had promised to provide plaintiff with at least medical insurance coverage with a $200 deductible.

Defendant seeks to offset plaintiff’s vacation time with several days spent in Las Vegas, Nevada, accompanying defendant and a client to a trade convention in which defendant played a prominent part. Plaintiff’s duties at the convention were secretarial in nature and she was required to attend the convention at the direction of the defendant, her employer.

Throughout her employment, plaintiff’s actions were at all times consistent with what appeared to be the terms the parties had agreed upon: she kept track of her overtime hours and notified defendant of them on a regular basis, she made a claim for overtime hours from time to time, she attempted to obtain and file an insurance claim for medical expenses incurred and she sought two weeks’ vacation pay.

Similarly, defendant’s actions seemed to be consistent with the agreement alleged by the plaintiff: he required her to keep time sheets, he directed her, after the fact, to secure medical insurance and he apparently concedes the plaintiff’s right to a two-week vacation.

The trial court entered a finding for the defendant on counts I and II of plaintiff’s complaint at the close of the plaintiff’s case.

We now turn to the merits of plaintiff’s appeal. When ruling on a defendant’s motion for judgment at the close of plaintiff’s case in a nonjury trial, the court must first determine whether the plaintiff has made a prima facie case by presenting at least some evidence on every essential element of his cause of action, and then, if he has made out a prima facie case, the trial judge must weigh the plaintiff’s evidence to determine if the burden of proof has been met by a preponderance of evidence. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154; Mannion v. Stallings & Co. (1990), 204 Ill. App. 3d 179, 186.) The Mannion court determined that when a trial court considers the weight and quality of the evidence, it must consider evidence favorable to the defendant, the credibility of witnesses, and reasonable inferences to be drawn from the testimony. (Mannion, 204 Ill. App. 3d at 186.) The court further noted that if, after the evidence is weighed, the evidence necessary to the plaintiff’s prima facie case is almost absent or negated, the court should enter judgment in the defendant’s favor. But if there remains sufficient evidence to establish plaintiff’s prima facie case, the court should deny the defendants’ motion. Kokinis, 81 Ill. 2d at 155; Mannion, 204 Ill. App. 3d at 186.

A contract of employment is formed when one party promises to render services in exchange for the other party’s promise to pay wages. (Vandevier v. Mulay Plastics, Inc. (1985), 135 Ill. App. 3d 787, 793.) In the case at bar, evidence of the formation of such a contract is overwhelming.

For plaintiff to meet her burden of proof in a contract action, plaintiff must establish an offer and acceptance, consideration, definite and certain terms of the contract, plaintiff’s performance of all required contractual conditions, the defendant’s breach of the terms of the contract, and damages resulting from that breach. (Mannion, 204 Ill. App. 3d at 186; Vandevier, 135 Ill. App. 3d at 791; O’Neil & Santa Claus, Ltd. v. Xtra Value Imports, Inc. (1977), 51 Ill. App. 3d 11, 14.) We note that in reviewing the trial court’s finding that plaintiff did not sustain her burden of proof as to these elements, we cannot reverse that decision unless it is contrary to the manifest weight of the evidence. Mannion, 204 Ill. App. 3d at 186; Vandevier, 135 Ill. App. 3d at 790.

Courts of review must take great care that they do not provide litigants with a trial de novo and substitute their judgment for that of the trial court merely because they would have reached a different result.

But here the record is clear that the parties had a meeting of the minds as to the terms of employment and that the initial meeting of the parties was attended by an independent witness. While testimony and documentary evidence may not have been as clear or as thorough as the trier of fact might have liked, the evidence does establish significant amounts of overtime, some loss occasioned by the lack of medical coverage and failure to provide appropriate reimbursement for vacation time.

Plaintiff has met her burden of proof in this contract action and has established a prima facie case. The trial court’s ruling, therefore, was contrary to the manifest weight of the evidence, and we reverse and remand this cause of action for a new trial as to count I of plaintiff’s complaint.

As to count II of plaintiff’s complaint, her claim under the Illinois Minimum Wage Act, plaintiff failed to provide adequate evidence at trial to establish a prima facie case that employment was within the purview of the statute. We find that the trial court properly dismissed count II of plaintiff’s complaint.

We agree with plaintiff that this court has no jurisdiction to consider defendants’ appeal on dismissal of their counterclaim. The “half-sheet” in the record shows that a dismissal of the counterclaim as well as the counts in plaintiff’s complaint was entered on October 31, 1989. On February 1, 1990, the court entered another order explicitly stating that the prior order of October 31, 1989, was consistent with the “half-sheet” order dismissing the counterclaim and that the “half-sheet” order was the final order in the case.

Accordingly, plaintiff’s notice of appeal filed November 27, 1989, was timely, but defendants’ notice of appeal filed March 2, 1990, for dismissal of its counterclaim was not in accordance with Supreme Court Rule 303. (107 Ill. 2d R. 303.) Defendants’ reliance on Stoermer v. Edgar (1984), 104 Ill. 2d 287, 291, is inapposite because there the trial court’s memorandum stated that a formal order would be entered at a later time. (107 Ill. 2d R. 272.) In the case at bar, the trial court was merely rectifying a clerical error as a matter of course. See Virzint v. Beranek (1990), 202 Ill. App. 3d 511, 515; Hopedale Medical Foundation v. Zagel (1981), 97 Ill. App. 3d 513, 515.

In addressing defendants’ contention that the trial court erred in dismissing their petition for attorney fees, we note that such petition (134 Ill. 2d R. 137) cannot be brought as a collateral matter after the 30-day period for filing a notice of appeal has passed and jurisdiction in the principal action has vested in the appellate court. (See Cashmore v. Builders Square, Inc. (1990), 207 Ill. App. 3d 267.) Therefore, defendants’ January 16, 1990, petition in the trial court was brought after the 30-day period and after the notice of appeal of the principal action vested jurisdiction in this court. The Rule 137 petition brought by defendants in the trial court was untimely and dismissal appropriate.

Defendants have also requested sanctions against plaintiff directly from this court. Under Supreme Court Rule 375 (134 Ill. 2d R. 375), a party who has filed a frivolous appeal or an appeal increasing the cost of litigation could be ordered to pay the other party the reasonable costs of the appeal, including reasonable attorney fees.

Since we have reversed and remanded a portion of the proceedings for a new trial, it is certainly apparent that plaintiff has not prosecuted a frivolous appeal or prolonged the action. Defendants’ petition pursuant to Supreme Court Rule 375 is dismissed.

Accordingly, the judgment of the trial court is affirmed in part and reversed and remanded in part for a new trial, and defendants’ petition under Supreme Court Rule 375 is dismissed.

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

RIZZI and WHITE, JJ., concur.


author: JUSTICE McMORROW

text:
    CONCEPCION NOYOLA et al, Plaintiffs-Appellants, v. THE BOARD OF EDUCATION OF THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—90—1660
    Opinion filed March 19, 1992.

      Ruben Castillo and Arturo Jauregui, both of Mexican American Legal Defense Fund, and Michael Radzilowsky, of Radzilowsky & Dobish, both of Chicago, for appellants.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

This is an appeal from the trial court’s dismissal with prejudice of a complaint filed by plaintiffs, who are (1) parents of allegedly disadvantaged Chicago school children and (2) community-based advocacy groups whose members include parents of allegedly disadvantaged Chicago school children. The trial court dismissed plaintiffs’ complaint under section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) because it concluded that the plaintiffs lacked standing to challenge the method by which the defendants, the Board of Education of the City of Chicago (hereinafter the Chicago Board of Education) and the Illinois State Board of Education, allocate certain public funds for educational use. Because we find defendants’ arguments insufficient basis to dismiss plaintiffs’ complaint for lack of standing, we reverse and remand.

The plaintiffs in the instant cause are comprised of two groups. One group is parents of allegedly economically disadvantaged Chicago public school children. A second group is community-based advocacy organizations (Parents United for Responsible Education, Por Un Barrio Mejor, and United Neighborhood Organization of Chicago) whose members include parents of allegedly economically disadvantaged Chicago public school children. As ultimately amended, plaintiffs’ suit challenged the method by which the State Board of Education allocates to the Chicago School Board certain public school funds intended exclusively for economically disadvantaged students. These funds are referred to by the parties as “Title I funds,” and are provided for in section 18 — 8(i) of the Illinois School Code (Ill. Rev. Stat. 1989, ch. 122, par. 18 — 8(i)). Plaintiff’s pleading was filed as a class action suit on behalf of all economically disadvantaged students of Chicago public schools.

In their complaint, plaintiffs alleged that the Chicago School Board and the State Board of Education have been improperly allocating Title I funds among Chicago public schools. Count I of the complaint alleged that the defendants’ improper allocation of Title I funds violated the plaintiffs’ right to “adequate educational opportunities” under article X, section 1, of the Illinois Constitution. (Ill. Const. 1970, art. X, §1.) In count II, plaintiffs alleged that defendants’ improper use of Title I funds created a system of unequal distribution of educational resources among Chicago public school students, thereby violating the equal protection clause of the Illinois Constitution. (Ill. Const. 1970, art. I, §2.) Count III alleged that defendants’ actions were unlawful under the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1989, ch. 127, par. 1001 et seq.). In count IV, plaintiffs alleged that defendants’ improper use of Title I funds violated plaintiffs’ rights under section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1989)) and the equal protection clause of the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV). Plaintiffs requested injunctive and declaratory relief.

Defendants filed a motion to dismiss plaintiffs’ amended complaint, pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), for failure to state claims for which relief could be granted. Defendants argued inter alia that plaintiffs lacked standing to sue defendants for the alleged improper use of Title I funds. Following briefing and argument, the trial court allowed defendants’ motion to dismiss and dismissed plaintiffs’ complaint in its entirety with prejudice. Plaintiffs appeal.

We consider first the parties’ arguments regarding the standing of those plaintiffs who are parents of allegedly economically disadvantaged Chicago public school students. Defendants claim that these plaintiffs have no standing to challenge the use of Title I funds under section 18 — 8(i) of the School Code. Specifically, defendants assert that these plaintiffs cannot state a “private cause of action” under section 18-8®.

Under Illinois jurisprudence, a plaintiff possesses standing to sue when the plaintiff has suffered an injury in fact to a legally cognizable interest. (Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 492-93, 524 N.E.2d 561.) The Illinois Supreme Court has refused to expand the requirements of standing to include a “zone of interest” test. (See Greer, 122 Ill. 2d at 487-92.) Under the zone of interest test, a plaintiff must show that the defendant’s violation of the statute will cause the plaintiff to suffer an injury and that the interest asserted by the plaintiff lies within the “zone of interests” protected by the statute. Greer, 122 Ill. 2d at 487.

Defendants argue that in order to have standing to sue, plaintiffs must state a “private cause of action.” A private cause of action is found to exist where: (1) the plaintiff falls within the class of persons the statute is designed to benefit; (2) the plaintiff’s injury is one the statute is intended to prevent; (3) implying the cause of action is consistent with the underlying purpose of the statute; and (4) implying a private cause of action is necessary to effectuate the purpose of the statute. Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 470, 546 N.E.2d 580.

In light of Greer, we must decline defendants’ invitation to further engraft upon Illinois standing law the additional requirement that the plaintiffs satisfy the factors associated with the concept of a “private cause of action.” The criteria governing a private cause of action are markedly similar to the zone of interest test. In each test, the plaintiff must show that he has been injured by the defendant’s violation of the statute and that the plaintiff’s injury is one the statute is designed to prevent. Both analyses also require consideration of the underlying purposes of the statute in question. See Greer, 122 Ill. 2d at 487-91; Board of Education, 131 Ill. 2d at 470.

Because the Illinois Supreme Court has refused to apply the zone of interest test to Illinois standing requirements, we find the criteria of a private cause of action equally inapplicable to standing requirements under Illinois law. We adhere to the view expressed by the Illinois Supreme Court in Greer that it would serve no useful purpose to further expand the concept of standing in Illinois beyond the present requirement that the plaintiff show an injury in fact to a legally cognizable interest. Greer, 122 Ill. 2d at 492-93.

Accordingly, defendants’ argument regarding a private cause of action is not properly considered in the context of whether the plaintiffs have standing to bring the instant suit against the defendants. Defendants raise no argument with respect to whether plaintiffs have standing under Illinois law, viz., defendants do not argue that plaintiffs did not suffer an injury in fact to a legally cognizable interest. In light of these circumstances, we reverse the trial court’s dismissal of these plaintiffs’ complaint and remand the matter for further proceedings consistent herewith.

Defendants also argue that the plaintiffs who are community-based advocacy groups with members who are parents of economically disadvantaged Chicago public school children lack standing to file the instant suit against defendants.

As we have previously stated, to determine whether the plaintiffs have standing, the proper inquiry is whether the plaintiffs have suffered an injury in fact to a legally cognizable interest. (Greer, 122 Ill. 2d at 492.) Lack of standing is an affirmative defense, and it is the defendants’ burden to show that the plaintiffs do not have standing to sue. (Greer, 122 Ill. 2d at 494.) The issue is not appropriately presented in a section 2 — 615 motion to dismiss, which tests whether the complaint is sufficient to state a claim for which relief might be granted. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615; see Greer, 122 Ill. 2d at 494.

Defendants dispute whether the plaintiffs who are community-based advocacy groups have alleged sufficient facts to show that the groups have suffered an injury to a right or interest possessed by these advocacy groups. (See Spring Mill Townhomes Association v. OSLA Financial Services, Inc. (1983), 124 Ill. App. 3d 774, 777, 465 N.E.2d 490.) However, the record before us does not contain facts from which such an analysis can be made. It was defendants’ burden to plead and prove that these plaintiffs lacked standing. (Greer, 122 Ill. 2d at 494.) Having failed to satisfy this burden, defendants’ motion should not have been granted. Consequently, we reverse the trial court’s dismissal of the complaint filed on behalf of the plaintiffs who are community-based advocacy groups and remand the matter for further proceedings consistent herewith.

Defendants also raise other arguments regarding the sufficiency of plaintiffs’ complaint. The record indicates that the trial court declined to rule on these issues, because the court found the question of standing sufficient ground to dismiss the plaintiffs’ complaint with prejudice. For this reason, the trial court would not permit plaintiffs the opportunity to amend their complaint in response to the defendants’ additional arguments. On appeal, plaintiffs assert that they should have been allowed to amend their complaint. We find that the defendants’ additional arguments should be addressed by the trial court on remand, following amendments to the plaintiffs’ complaint as the trial court hereinafter permits. Consequently, we do not consider defendants’ additional arguments in this appeal.

For the reasons stated, the judgment of the trial court is reversed, and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

JIGANTI, P.J., and LINN, J., concur.