author: JUSTICE CAMPBELL

text:
    MAE J. NAGY et al., Plaintiffs-Appellants, v. JAMES E. BECKLEY et al., Defendants-Appellees.
    First District (1st Division)
    No. 1-90-0268
    Opinion filed August 26, 1991.

      Collins & Bargione, of Chicago (George B. Collins, Christopher Bar-gione, and Gregory A. Bedell, of counsel), for appellants.
    Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, David E. Morgans, Steven J. Rizzi, and Lloyd E. Williams, Jr., of counsel), for appel-lees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs Mae Nagy, Victor Nagy and Victor P. Nagy, Inc., appeal an order of the circuit court of Cook County dismissing counts II, III and IV of their complaint against defendants James E. Beckley and James E. Beckley & Associates, P.C.

The record on appeal discloses the following. Plaintiffs Mae and Victor Nagy are married residents of Michigan. Mae and Victor are also the shareholders, officers and directors of plaintiff Victor P. Nagy, Inc. (the corporation).

In 1971, Victor signed a franchise agreement with the Comprehensive Accounting Corporation (CAC), permitting the corporation to render bookkeeping services in Michigan. Mae did not sign the agreement. Under the agreement, the corporation provided services to accounts it purchased from CAC. The corporation financed these purchases through CAC, as well as signing pledges and loan agreements with CAC. Later, Victor and Mae signed 41 installment notes and security guarantees, both as individuals and as officers and shareholders of the corporation.

In 1983, CAC filed a suit (the CAC litigation) against plaintiffs arising from contractual disputes between the parties. Plaintiffs retained defendants as counsel to defend them.

The first trial on the merits was declared a mistrial due to the death of the judge. At the second trial, defendants asserted the defense of fraud on behalf of plaintiffs. After the close of proofs, defendants moved to conform the pleadings to the proof and argued that the agreement was unconscionable. In February 1987, the trial court in the CAC litigation entered a judgment against plaintiffs in the amount of $440,268.23, which was affirmed on appeal. Mae then agreed to pay CAC $150,000. Defendants received $102,881.44 for their legal services.

Plaintiffs subsequently filed a four-count complaint against defendants alleging legal malpractice. Count I, brought solely by Mae, alleged defendants neither asserted the defense that Mae never signed the franchise agreement nor told her that the availability of this defense might place her in an adverse position to the other plaintiffs. Count II, also brought solely by Mae, alleged that defendants breached their ethical duty to inform Mae of any potential conflict she might have with the other plaintiffs. Count III, brought by all plaintiffs, alleged defendants’ failure to assert illegality as a defense. Count IV, also brought by all plaintiffs, alleged defendants’ failure to assert the unconscionability defense before the close of proofs.

Defendants moved to dismiss the complaint pursuant to section 2— 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). In December 1989, the trial court dismissed counts II, III and IV; plaintiffs now appeal.

The purpose of a section 2 — 619 motion is to provide a mechanism to dispose of issues of law or easily proved issues of fact. (Chicago Steel Rule Die & Fabricators Co. v. Malan Construction Co. (1990), 200 Ill. App. 3d 701, 558 N.E.2d 341; Consumer Electric Co. v. Cobelcomex, Inc. (1986), 149 Ill. App. 3d 699, 501 N.E.2d 156.) A trial court should grant a motion to dismiss if after construing the documents in the light most favorable to the nonmoving party, the court finds no disputed issue of fact. (Samansky v. Rush-Presbyterian-St. Luke’s Medical Center (1990), 208 Ill. App. 3d 377, 567 N.E.2d 386.) The court assumes that the well-pleaded facts of plaintiffs’ complaint are true, but conclusions of law or fact unsupported by specific factual allegations may be disregarded. (Foreman v. Consolidated Rail Corp. (1991), 214 Ill. App. 3d 700.) We may affirm a dismissal granted pursuant to section 2 — 619 on any grounds supported by the record, regardless of the trial court’s reasons. See Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 286, 527 N.E.2d 303, 305.

I

Mae initially contends that the trial court erred in dismissing count II of plaintiffs’ complaint as duplicative of count I. A duplicative count may be properly dismissed. See, e.g., Hoth v. Stogsdill (1991), 210 Ill. App. 3d 659, 663, 569 N.E.2d 34, 37; Ill. Rev. Stat. 1987, ch. 110, pars. 2-619(aX3), (a)(9).

In this case, count I alleged that defendants negligently failed to raise the fact that Mae never signed the franchise agreement as a defense and negligently failed to tell Mae that this fact might place her in an adverse position to Victor and the corporation, who lacked this possible defense. The record shows that count II contains substantially the same allegations, but adds allegations that these failures violated duties arising under Canon 5 of the Illinois Code of Professional Responsibility, including Rule 5 — 105 (107 Ill. 2d R. 5 — 105 (repealed and superseded by new rules effective August 1, 1990); see 134 Ill. 2d R. 1.7), which prohibited attorneys from representing multiple clients where the representation was likely to adversely affect the exercise of the attorney’s independent judgment, unless the clients consented after receiving full disclosure of the relevant facts from the attorney. Mae argues that this rule gives rise to a duty separate from the duty alleged in count I.

What little authority there is on the subject in this jurisdiction suggests that the rules of legal ethics do not establish a separate duty or cause of action. (See Suppressed v. Suppressed (1990), 206 Ill. App. 3d 918, 565 N.E.2d 101; Berlin v. Nathan (1978), 64 Ill. App. 3d 940, 381 N.E.2d 1367; Lyddon v. Shaw (1978), 56 Ill App. 3d 815, 372 N.E.2d 685.) For example, the Berlin court was “not convinced by [the] argument that since the defendant attorneys are officers of the court and can be disciplined by the court, they should be held liable in tort for breach of *** the Illinois Code of Professional Responsibility.” Berlin, 64 Ill. App. 3d at 953, 381 N.E.2d at 1376.

Similarly, in Suppressed, the plaintiff client brought a legal malpractice claim alleging that coerced sexual relations between the attorney and client created a potential conflict of interest. (Suppressed, 206 Ill. App. 3d at 924, 565 N.E.2d at 105.) The court rejected this claim, stating that while “defendant’s behavior may have been unethical, we do not think that it equates to legal malpractice.” (Suppressed, 206 Ill. App. 3d at 925, 565 N.E.2d at 105.) The Suppressed court continued:

“We do not disagree with plaintiff’s suggestion that there should be a separate cause of action for a lawyer’s breach of the ethical duty to conduct himself in accordance with the rules of professional responsibility. However, we feel that it should be left to the legislature to address this matter.” Suppressed, 206 Ill. App. 3d at 926, 565 N.E.2d at 106.

Plaintiffs attempt to distinguish Berlin and Lyddon, noting that both involved attempts by physicians to ward off medical malpractice suits by claiming the suits were negligently filed; the claims were denied as an attempt to circumvent the requirements of a malicious prosecution action. Furthermore, because such claims were lodged against opposing counsel, an attorney-client relationship was not shown in either case. Suppressed, however, was not an attempt to circumvent the requirements of a malicious prosecution claim. Moreover, Suppressed involved a claim against the client’s own attorney.

We note that the Suppressed court implied that the complaint failed to allege a duty arising out of the attorney-client relationship. (See Suppressed, 206 Ill. App. 3d at 923, 565 N.E.2d at 105.) A tort based solely on a breach of ethical rules, however, would not (in theory) require an attorney-client relationship. (Cf. 134 Ill. 2d Rules 3.3 (conduct before a tribunal), 3.4 (fairness to opposing party and counsel), 4.4 (respect for rights of third persons).) Moreover, the conclusion that breach of an ethical duty is not a claim distinct from legal malpractice is supported not only by Lyddon, Berlin and Suppressed, but also by case law in other jurisdictions. See Annot., 28 A.L.R.3d 389, 393 (1969) (and cases cited therein).

Mae relies primarily on Rogers v. Robson, Masters, Ryan, Brumund & Belom (1979), 74 Ill. App. 3d 467, 392 N.E.2d 1365, aff'd (1980), 81 Ill. 2d 201, 407 N.E.2d 47, to support her claim. Rogers involved a conflict of interests between an insurer and an insured represented by the same law firm. The firm argued that its duties to the insured were based on the language of the insurance policy instead of an attorney-client relationship. This court disagreed, stating:

“[T]he principle to be gleaned is that the attorney does represent the insured and assumes all of the duties imposed by the attorney-client relationship. Not only does the attorney owe his client fidelity and loyalty, but also is required to exercise reasonable skill in the performance of his duties.” (Rogers, 74 Ill. App. 3d at 474, 392 N.E.2d at 1372.)

The Rogers court also stated:

“Some of the duties of an attorney to the insured originate with the basic principle embodied in Canon 5 of the Code of Professional Responsibility *** which provides:
‘A LAWYER SHOULD EXERCISE INDEPENDENT PROFESSIONAL JUDGMENT ON BEHALF OF A CLIENT.’
While it has been held in a disciplinary proceeding that the Code of Professional Responsibility is not binding on the court, the same decision recognizes that the Canons of Ethics contained in the Code constitute a safe guide for professional conduct and an attorney may be disciplined for not observing them. (In re Taylor (1977), 66 Ill. 2d 567, 363 N.E.2d 845.) It is true that the present action is one for malpractice and not a disciplinary proceeding, but it would be anomalous indeed to hold that professional standards of ethics are not relevant considerations in a tort action, but are in a disciplinary proceeding. Both malpractice actions and disciplinary proceedings involve conduct failing to adhere to certain minimum standards and we reject any suggestion that ethical standards are not relevant considerations in each.” (Rogers, 74 Ill. App. 3d at 472-73, 392 N.E.2d at 1371.)

Rogers was affirmed on appeal. (Rogers v. Robson, Masters, Ryan, Brumund & Belom (1980), 81 Ill. 2d 201, 407 N.E.2d 47.) We cannot help but note that our supreme court’s opinion in Rogers makes no reference to Canon 5 or any other rule of legal ethics.

Viewed in its entirety, Rogers does not support Mae’s argument. A lawyer’s duty to a client may “originate with the basic principle embodied in Canon 5” (emphasis added) (Rogers, 74 Ill. App. 3d at 472, 392 N.E.2d at 1371) without originating from Canon 5 itself. Indeed, in Rogers, this court characterized the duties as “imposed by the attorney-client relationship.” (Rogers, 74 Ill. App. 3d at 474, 392 N.E.2d at 1372.) Mae has not cited any authority expressly permitting “ethical malpractice” as a distinct cause of action; as noted above, the weight of authority in this jurisdiction and others suggests the contrary. Thus, while rules of legal ethics may be relevant to the standard of care in a legal malpractice suit (Rogers, 74 Ill. App. 3d at 473, 392 N.E.2d at 1371; cf. Barth v. Reagan (1990), 139 Ill. 2d 399, 410, 564 N.E.2d 1196, 1201 (conflict of interest concerns may be subject of expert testimony in legal malpractice case)), they are not an independent font of tort liability.

Mae also notes on appeal that count II specifically alleges that defendants breached Rule 5 — 101(a) (107 Ill. 2d R. 5 — 101(a)), which prohibited attorneys from representing clients where the attorney’s independent judgment might be affected by the attorney’s own financial interest, unless the client consented after full disclosure. However, the record indicates that Mae’s arguments in the trial court were based on the alleged conflict of interest arising from the multiple representation, not from defendants’ financial interests. Thus, the argument is waived. See Inland Real Estate Corp. v. Christoph (1981), 107 Ill. App. 3d 183, 437 N.E.2d 658.

In sum, as the record in this case indicates that both counts I and II are based on the same factual allegations, the trial court’s dismissal of count II as surplusage was not error.

II

Plaintiffs next challenge the dismissal of count III, which alleges legal malpractice based on defendants’ failure to raise illegality as a defense. Plaintiffs contend that a regulation promulgated by the Federal Trade Regulation (FTC) regarding the sale of franchises (see 16 C.F.R. §436.1 (1979)) made the franchise agreement upon which the CAC litigation was founded illegal. Defendants counter that the regulation, promulgated in 1979, does not invalidate the franchise agreement, which was signed in 1971. The trial court held that retroactive application of the FTC regulation would be unconstitutional.

Generally, our courts will not decide a constitutional issue if the case can be decided otherwise. (People v. Rogers (1989), 133 Ill. 2d 1, 549 N.E.2d 226.) We turn first, therefore, to examine whether the dismissal is supportable on other grounds.

Illegality may bar the enforcement of a contract (e.g., Purcell & Wardrope Chartered v. Hertz Corp. (1988), 175 Ill. App. 3d 1069, 530 N.E.2d 994), but the law upon which the party asserting illegality seeks to rely must have been in existence when the contract was formed. (Davies v. Arthur Murray, Inc. (1970), 124 Ill. App. 2d 141, 156, 260 N.E.2d 240, 248.) This rule is related to the rule that a law may not be applied retroactively without an express provision to that effect. (See Mulligan v. Joliet Regional Port District (1988), 123 Ill. 2d 303, 321, 527 N.E.2d 1264, 1273.) Retroactivity may be attacked in a section 2— 619 motion. See Hill v. Butler (1982), 107 Ill. App. 3d 721, 437 N.E.2d 1307.

The FTC regulation plaintiffs raise was promulgated long after they signed the franchise agreement. Plaintiffs cite no authority which supports their assertion that the validity of the illegality defense is measured from the date enforcement of the contract is sought. Thus, plaintiffs have failed to show that the trial court erred in dismissing count III of the complaint.

Ill

Finally, plaintiffs argue that the trial court erred in dismissing count IV of their complaint, which alleges that defendants negligently failed to raise the defense of unconscionability in the CAC litigation until after the close of proofs. Defendants respond that: (1) the initial decision not to assert unconscionability as a defense was, at worst, a mere error of judgment; and (2) the defense was raised and rejected by the trial and appellate courts in the CAC litigation.

Defendants’ latter contention sounds in collateral estoppel and estoppel by verdict, which can be raised by a section 2 — 619 motion in a legal malpractice action. (Todd v. Katz (1989), 187 Ill. App. 3d 670, 674, 543 N.E.2d 1066, 1068.) These doctrines apply when a party participates in two separate cases where different causes of action are alleged and a controlling fact or question material to the outcome of both causes has been decided against that party in the prior suit. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 252, 461 N.E.2d 959, 962.) The parties need not be identical in both cases, but the party against whom estoppel is asserted must have been able to litigate the issue. Todd, 187 Ill. App. 3d at 674, 543 N.E.2d at 1068.

In this case, plaintiffs were parties to the prior CAC litigation, in which the current defendants raised the unconscionability defense on plaintiffs’ behalf. The defense was rejected by the trial and appellate courts. The record shows that the trial court rejected the defense largely on the basis of plaintiffs’ admissions in court. Therefore, count IV of plaintiffs’ complaint is barred by collateral estoppel. Moreover, even if it would be inequitable in a given legal malpractice claim to allow an attorney to rely on an unfavorable judgment he or she allegedly caused, plaintiffs in this case have not alleged any specific facts to support the conclusory allegation that the result of the CAC litigation would have been different if the defense had been asserted earlier. (Compare with Albright v. Seyfarth, Fairweather, Shaw & Geraldson (1988), 176 Ill. App. 3d 921, 927-28, 531 N.E.2d 948, 952-53 (specific allegations of causation).) Hence, plaintiffs have faded to show the trial court erred in dismissing count IV of their complaint.

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

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.

      See Comprehensive Accounting Corp. v. Victor P. Nagy, Inc. (2d Dist. 1987), No. 2 — 87—0218 (unpublished order under Supreme Court Rule 23).


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK MASOR (Impleaded), Defendant-Appellant.
    First District (3rd Division)
    No. 1-87-2081
    Opinion filed August 28, 1991.
    Rehearing denied November 18, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Stephen L. Richards, Assistant Public Defender, of counsel), for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Paul Gliatta, and John deGrasse, Assistant State’s Attorneys, of counsel), for the People.

      Justice White heard oral arguments in this appeal prior to his retirement. Since that time, Justice Cerda was designated the third member of the panel and he has read the briefs and listened to the tapes.

   JUSTICE RIZZI

delivered the opinion of the court;

Following a joint bench trial, defendant Mark Masor was found guilty of delivery of a controlled substance and sentenced to serve a six-year prison term. His codefendant and father, Edward Masor, was also found guilty. Edward is not a party to this appeal. On appeal, Mark argues that (1) the trial judge erroneously excluded expert psychological testimony demonstrating his susceptibility to entrapment; (2) he was not proven guilty beyond a reasonable doubt; and (3) the State’s involvement in his arrest constituted outrageous governmental conduct which violated his right to due process of law. We affirm.

The State presented the following evidence at trial. On January 9, 1985, Brent Fowlar, a Skokie village detective assigned to the Northeastern Metropolitan Drug Enforcement Group (NEMEG), met with Officer Rafael Tovar of the Des Plaines police department, a group supervisor for NEMEG; William Plahm, a Cook County sheriff’s police officer assigned to NEMEG; and A1 Osslund, a confidential police informant. The parties arranged to execute an undercover drug buy and surveillance to be arranged by Osslund.

At 6:40 p.m. that evening, Tovar went with NEMEG Agent Plahm to the 2700 block of Pine Grove in Chicago to conduct the undercover surveillance. Osslund accompanied Agent Fowlar, who drove an undercover vehicle to 2727 Pine Grove, where they picked up Mark and Edward, who were waiting in the vestibule of the building at that address. Edward Masor directed Fowlar to a house where they could purchase drugs. Fowlar drove Mark and Edward to the 2700 block of Berwyn. When they arrived, Edward told Fowlar to wait in the car while he entered a building located at 2707 West Berwyn. Tovar watched these activities from his car.

After a short while, Edward returned to the car and gave Fowlar a bag containing what was later determined to be 0.9 grams of cocaine. Fowlar gave Edward $100 in prerecorded funds. Thereafter, Edward went back into the apartment building. When he returned, he told Fowlar that the cocaine was high quality and that he could obtain more. Mark told Fowlar that he could deliver as much cocaine as he wanted. Fowlar drove Mark and Edward to a bus stop at Foster and Western Avenues. After Fowlar gave the two men an undercover telephone number, and discussed future drug purchases, Mark stated that he would call Fowlar later to see if he liked the cocaine, and Mark and Edward exited the car. Later that evening, Tovar met with Fowlar and Osslund. Fowlar showed the other two men a plastic bag containing one gram of cocaine that he had purchased from Edward.

At approximately 10:30 p.m. that night, Fowlar received a call from Mark, who asked him how he liked the cocaine. Fowlar told Mark that he would like to purchase two additional ounces of cocaine and Mark told him that the price would be $3,300.

The next day, Fowlar met Mark in front of a taco stand near Berwyn and Lincoln Avenues. Tovar and Plahm watched Mark and Fowlar from a parked car. Mark entered Fowlar’s car and directed him to a parking space in a nearby lot. Mark asked to see the money, and Fowlar showed him the cash. Thereafter, Mark exited the car and entered the taco stand. Agent Plahm followed Mark into the restaurant and observed him talking on a public telephone. While Plahm was standing approximately 10 feet away, he overheard Mark say into the receiver, “What do you want me to do? I have a car.”

After Mark returned to Fowlar’s car, he told him that his father, Edward, would bring the cocaine. Edward subsequently arrived, entered the vehicle, and asked Fowlar to pull into an alley. When Fowlar refused, Edward left the vehicle and returned later in a blue car driven by John Waullowender. Edward took a bag from Waullo-wender and entered Fowlar’s car. Edward gave Fowlar the plastic bag, which was later determined to contain 51 grams of cocaine, and Fowlar gave Edward $3,300. Fowlar then signaled his fellow officers, and Mark and Edward were arrested. The $3,300 was recovered from Edward.

Edward Masor testified that he had known the State’s confidential informant, A1 Osslund, for two months. During that period, he exchanged his cocaine for Osslund’s heroin on numerous occasions. Edward further testified that on January 5, 1985, Osslund attempted to purchase cocaine from him and his son, Mark. He testified that after he refused several times, Osslund told him that he would not be given any more heroin. He testified that, because Osslund was his only source of heroin, he agreed to get cocaine for him. Edward admitted that he arranged for the sale of one gram of cocaine to Fowlar on January 9, 1985, but he did not profit from the sale. Edward stated that, thereafter, Fowlar called him at home and asked him to obtain two kilos of cocaine. When Edward laughed at the request, Fowlar requested two ounces instead, and Edward reluctantly agreed after Fowlar stated that he would give him some of the cocaine.

Mark testified that he had known A1 Osslund for five years prior to the incident. He further testified that Osslund introduced him to heroin and that he and Osslund used heroin together on a number of occasions. During this time period, Osslund and Mark exchanged or shared, but never sold, drugs to each other. On January 5 or 6, 1985, Osslund asked Mark and his father to help him purchase cocaine. Mark testified that both he and his father initially refused, but finally agreed when Osslund threatened to discontinue their heroin supply. Mark, who was 22 years old at the time of his arrest, testified that he had been a habitual drug user for the past 11 years.

Mark attempted to introduce the testimony of Mary Larsen, a drug counselor at Parkside Medical Center. The State objected to her testimony, and the trial court sustained the objection. Defense counsel made an offer of proof that if Mary Larsen were called to testify, she would state that a person in Mark’s situation would feel that he had no alternative but to get involved in the sale of narcotics when threatened with the discontinuation of his drug supply.

Following closing arguments, the trial court found Mark guilty and sentenced him to serve a term of six years’ imprisonment. This appeal followed.

On appeal Mark first argues that the trial court erred in excluding expert psychological testimony on the issue of his susceptibility to entrapment. We disagree.

Expert testimony is properly admissible when the subject matter is sufficiently beyond the common experience of ordinary lay individuals such that only persons of a particular skill or experience are capable of forming a judgment based on the facts presented. (People v. Cole (1988), 170 Ill. App. 3d 912, 929, 524 N.E.2d 926, 936.) An expert whose qualifications and experience give him or her knowledge which is beyond the ken of the average fact finder and whose testimony will aid, and not invade, the province of the fact finder in reaching its decision, should be allowed to testify. (People v. Barber (1983), 116 Ill. App. 3d 767, 776, 452 N.E.2d 725, 730.) Whether an expert is qualified to testify is within the sound discretion of the trial court, and its decision will not be overturned absent an abuse of discretion. People v. Sequoia Books, Inc. (1988), 172 Ill. App. 3d 627, 638, 527 N.E.2d 50, 57.

Here, Larsen’s testimony was properly excluded. Expert testimony was not required to determine that, based on Mark’s history of drug abuse, he would feel that he had no choice other than to facilitate an illegal drug transaction when faced with the discontinuation of his drug supply. Indeed, Larsen’s testimony would have gone beyond assisting the fact finder and would have instead invaded its province.

The trial court could not have reached its decision without considering Mark’s testimony that he had been a drug addict for 11 of his 22 years. It was obvious from Mark’s and his father’s testimony regarding their lifestyle that obtaining and using drugs was their main preoccupation. However, the court was also free to infer that a habitual drug user, who admittedly used a number of different illegal substances, had access to more than one drug supplier. In contemporary society, and particularly in the criminal courts, knowledge of the lifestyle within the drug milieu is not beyond the common experience of the average fact finder. We therefore conclude that the trial court did not err in excluding Mark’s proffered expert testimony on the issue of his alleged susceptibility to entrapment.

Mark next argues that he was not proven guilty beyond a reasonable doubt. It is his position that the State failed to rebut his affirmative defense of entrapment. We disagree.

To establish the affirmative defense of entrapment, the evidence must establish that the government, for the purpose of obtaining evidence, induced the defendant to commit a crime originated by the government and that the defendant was an innocent person who would not have committed the crime had he not been so induced. (People v. Boalbey (1986), 143 Ill. App. 3d 362, 364, 493 N.E.2d 369, 370-71; Ill. Rev. Stat. 1987, ch. 38, par. 7 — 12.) Once the defendant has presented some evidence in support of his contention that there was an entrapment, the State must prove beyond a reasonable doubt that defendant was not entrapped. (People v. Chanath (1989), 184 Ill. App. 3d 521, 524, 540 N.E.2d 468, 470.) More specifically, the defendant must demonstrate that the State induced him to commit a criminal act, and if the defendant does so, then the burden is on the State to prove the defendant was ready and willing to commit the crime without persuasion. People v. Poulos (1990), 196 Ill. App. 3d 653, 658, 554 N.E.2d 448, 451.

Here, the evidence in support of Mark’s contention that he was entrapped was rebutted beyond a reasonable doubt by evidence that he was predisposed to commit the criminal act. Mark testified that he was a habitual drug user who had exchanged cocaine for heroin with a police informant for the past five years. In addition, Agent Fowlar testified that Mark told him that he could deliver as much cocaine as Fowlar wanted, telephoned him to inquire about his satisfaction with the first delivery of cocaine, agreed to procure two additional ounces of cocaine, and consequently facilitated the delivery of 51 grams of cocaine. Mark was admittedly procuring, bartering and using cocaine and other illegal drugs long before the police informant requested that he obtain cocaine for Fowlar. Mark was clearly predisposed to commit the offense of delivery of a controlled substance. Based on this evidence, we conclude that Mark was proven guilty of delivery of a controlled substance beyond a reasonable doubt.

Finally, Mark argues that the State’s involvement in his arrest constituted outrageous governmental conduct which violated his right to due process of law. We disagree.

A defendant’s conviction may be reversed on appeal where it is evident that the nature and extent of police involvement was so overreaching as to bar prosecution as a matter of due process of law. (People ex rel. Difanis v. Boston (1981), 92 Ill. App. 3d 962, 965-66, 416 N.E.2d 333, 336; United States v. Twigg (3d Cir. 1978), 588 F.2d 373, 377.) In Twigg, the government agent proposed the creation of a factory to manufacture “speed,” undertook the acquisition of the necessary equipment, raw materials, and a production site. In addition, the government agent was completely in charge of the laboratory. In that case, the court found that the governmental activities reached a demonstrable level of outrageousness and reversed the defendants’ convictions.

In the present case, Mark contends that, over a five-year period, the police informant deliberately “hooked” him on heroin so that he could be “badgered” into purchasing cocaine for the agent and arrested for delivery of a controlled substance. Mark’s contention is contradicted by the evidence adduced at trial. Mark had been a habitual drug user for six years before he met the police informant, and he had used, bartered and exchanged heroin with the informant for five years before his arrest for the offense charged in the present case. Further, in the present case, unlike in Twigg, Mark acquired the drug source and arranged for its delivery. Moreover, while the informant was present during the first meeting and drug sale, there was no evidence that he was in any way involved in or present during the final delivery of 51 grams of cocaine which led to Mark’s arrest. In sum, the government’s involvement in the events which led to Mark’s arrest and conviction did not rise to the level of outrageous conduct vio-lative of his right to due process of law.

Accordingly, for all of the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CERDA, P.J., and GREIMAN, J., concur.


author: PRESIDING JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EVERETT BROWN, Defendant-Appellant.
    First District (3rd Division)
    No. 1-89-1708
    Opinion filed August 28, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Lisa Ottenfeld and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Loren A. Seidner, Assistant State’s Attorneys, of counsel), for the People.

      Justice Tully concurred with this modified opinion on denial of rehearing subsequent to Justice White’s retirement.

   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

After a bench trial, defendant, Everett Brown, was convicted of two counts of second degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2) and sentenced to 10 years’ imprisonment. On appeal, defendant asserts that (1) the second degree murder statute is unconstitutional because it shifts the burden of proving an element of murder to the defendant; (2) the second degree murder statute violates due process and equal protection by deterring those convicted of second degree murder from appealing their convictions; (3) he proved by a preponderance of the evidence that he was acting in self-defense when he shot Lloyd Williams; (4) he was improperly convicted of two counts of second degree murder for only one crime; and (5) the trial court abused its discretion in sentencing him to 10 years’ imprisonment.

On November 12, 1988, at approximately 7:30 p.m., defendant, Everett Brown, shot and killed Lloyd Williams. At trial, defendant claimed self-defense. Defendant met Williams through a mutual friend approximately two years before the shooting. A year before the shooting, defendant, Williams, and others were at Greg Cason’s apartment, where Christopher Washington and Williams began to argue. Cason got between them and told them to quiet down. Williams asked his friend for a gun, but was refused, so Williams took the gun from him and pushed Cason into Washington. When Washington retreated to a back bedroom, Williams pushed Cason into a bedroom, held him by the collar, pointed a gun toward his head, and fired. Cason fell to the ground, but was not hit. He later found a bullet lodged in the window frame. As Williams was leaving, defendant touched his arm and told him to leave before the police came. Williams turned around with the gun still in his hand and told defendant not to touch him.

A few months before that incident, defendant twice heard Williams bragging that he had killed a Jamaican man. Williams was known to carry a gun and had a reputation for being violent. Detective Carlos Mitchem testified for defendant, stating that Williams had been arrested three times for unlawful use of weapons, but not for shooting anyone. At the time of Williams’ death, charges were still pending on a May 4, 1988, charge involving a Mac-10 automatic machine gun. Defendant testified that he had seen Williams with a gun five or six times. In addition, three State witnesses and two defense witnesses besides defendant testified that they had seen Williams with a gun on various occasions and knew of Williams’ reputation to be violent.

Two or three weeks before the shooting, Williams and defendant had an argument that escalated into pushing and shoving. Defendant testified that Williams grabbed his hand and bent it back. After releasing his hand, Williams left the apartment, but returned later and began pushing, grabbing, and wrestling with defendant. After about an hour, Williams put defendant in a headlock. Defendant begged for help from the other people present, but no one responded. Williams then grabbed defendant’s leg, flipped him into the fireplace, and choked him again. Finally, at the urging of others, Williams released his hold.

On November 10, 1988, there was a fight between Williams and defendant. That night, Williams told defendant he would “kick [his] ass” until defendant paid him money he owed Williams. The two men argued over the money and went outside to fight. No one else was present outside. Defendant testified that Williams punched him four or five times, and the two tussled before the police arrived. Defendant did not say anything to the police because Williams told him not to. Defendant stated that Williams warned him, “I’m going to beat your ass every time I see you” and “the next time I see you, I’m going to bust a cap in your ass.” Defendant understood those threats to mean that Williams was going to shoot him. Defendant also testified that Williams told him, “I wish I had brought my pistol” and “you’d better have a pistol because I’ll have mine.” A State rebuttal witness testified that Williams and defendant came back to the apartment laughing together. Defendant testified that he was given a gun the next night in order to protect himself from Williams. Defendant stated that he was afraid of Williams and believed his reputation for violence.

On November 12, 1988, defendant, Richard Green, and Tyrone Bowie went to Ronald Green’s apartment. When Richard Green walked into the living room, he saw Williams, and the two men spoke briefly. Williams saw defendant standing in the doorway and asked him, “[A]re you ready?” When defendant did not respond, Williams asked him again. Defendant muttered “yes.” Williams was motioning with both his hands facing the ceiling, and was moving toward defendant. Shaking, defendant pulled out the pistol and kept saying “please, don’t make me do this.” Speaking and motioning with his hands, Williams continued toward defendant. When Williams bit his lip, defendant stated, he closed his eyes and pulled the trigger because Williams had a habit of biting his lip before he started striking defendant. Richard Green was trying to stop Williams from moving toward defendant and was yelling at defendant to not shoot.

The first time defendant shot, no bullet was fired. When defendant shot again, Williams smiled and clutched his left side, falling toward the couch. As Williams lay half on the couch and half on the floor, defendant shot again, hitting Williams in the left lower back. From the first to the third shot, 10 to 25 seconds passed.

Richard Green testified that he ran to defendant and tried to push him out of the room after the second shot. He then bent over Williams, and defendant pushed him aside, shooting for the third time. He also testified that defendant pointed the gun at Ronald Green, who tried to push defendant toward the door.

Defendant testified that Williams raised his right hand as he was half-lying on the couch. Thinking that Williams was getting a weapon from the couch area, defendant fired the third shot. He ran out of the apartment and threw the gun in the canal. The next day, he surrendered himself. Defendant conceded that he did not see Williams with a weapon on the day of the shooting.

The cause of death was two gunshot wounds to the lower abdomen and lower back. After closing arguments, the trial court found defendant guilty of two counts of second degree murder based on an unreasonable belief in self-defense. The trial court found that defendant actually believed he was in danger from Williams on the day of the shooting because of Williams’ history of carrying firearms, actually using a firearm at least once, three arrests for unlawful use of weapons, and the history of fights between defendant and Williams. The trial court also found, however, that defendant’s belief was unreasonable. The trial court stated that the violence between Williams and defendant never escalated beyond fist fights and uncorroborated death threats by Williams. Furthermore, the trial court indicated, Williams was not armed at the time of the shooting; there was no immediate or imminent access to a weapon; and his hands were visible at all times. The State proved beyond a reasonable doubt all the elements of first degree murder and that self-defense did not exist since defendant’s belief was not reasonable, the trial court concluded.

Following aggravation and mitigation evidence, the trial court sentenced defendant to 10 years’ imprisonment. The trial judge stated that she considered probation, but such a sentence would deprecate the seriousness of defendant’s act and would be inconsistent with the ends of justice. The trial court also took into consideration defendant’s lack of any criminal history and his caretaking functions for his family.

Defendant asserts on appeal that the second degree murder statute is unconstitutional because it relieves the State of its burden of proving beyond a reasonable doubt every element of the offense, and it violates due process and equal protection rights. The State contends that defendant lacks standing to raise the constitutionality issue. A defendant has standing to challenge the statute’s constitutionality if he has sustained or is in immediate danger of sustaining some direct injury as a result of the statute’s enforcement. (People v. Esposito (1988), 121 Ill. 2d 491, 512-13.) A person subject to criminal prosecution has clearly established the injury needed to oppose the prosecution by asserting any relevant constitutional right. (L. Tribe, American Constitutional Law 115 (2d ed. 1988).) Since defendant was convicted of second degree murder, he has standing to raise the statute’s constitutionality.

Defendant’s first argument is that the second degree murder statute violates due process rights because it relieves the State of proving every element of first degree and second degree murder beyond a reasonable doubt. Instead, defendant contends, the second degree murder statute requires that he negate the elements of first degree murder and prove the mitigating factor of second degree murder by a preponderance of the evidence. Defendant concentrates on the element of unlawfulness, stating that the elements of the first degree murder statute are the same as the former murder statute, which were the knowing, intentional, and unlawful taking of another’s life. People v. Walden (1976), 43 Ill. App. 3d 744, 752; People v. Bauman (1975), 34 Ill. App. 3d 582, 588.

Defendant, however, misreads the statute. The second degree murder statute does not require defendant to negate any of the elements of first degree murder. The first degree murder statute defines killing without lawful justification as a killing where the defendant performs the acts with intent and causation. The State must prove beyond a reasonable doubt that the killing was without legal justification by proving that the defendant had the intent to kill or cause great bodily harm and his acts caused the death. Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), (a)(2).

Furthermore, if there is evidence of self-defense, the State must negate self-defense beyond a reasonable doubt. The second degree murder statute requires that the State meet its burden of proving first degree murder before the mitigating factors of second degree murder are considered. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a).) Contrary to defendant’s assertion, the second degree murder statute does not shift the burden of proving self-defense from the State to defendant. Defendant is confusing self-defense with the second degree murder’s mitigating factor.

Defendant misplaces his reliance on People v. Reddick (1988), 123 Ill. 2d 184, because that case was decided under the former voluntary manslaughter statute. Unlike the former voluntary manslaughter statute, where the mitigating factor had to be disproved beyond a reasonable doubt by the State, the present second degree murder statute places the burden on the defendant to prove an unreasonable belief in the right to use self-defense by a preponderance of the evidence. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(c).) The United States Supreme Court has ruled that such burden-shifting is not unconstitutional. Patterson v. New York (1977), 432 U.S. 197, 216, 53 L. Ed. 2d 281, 295, 97 S. Ct. 2319, 2330.

Defendant misinterprets Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881, by claiming that the homicide statute in Mullaney was substantially identical to the Illinois second degree murder statute. The statute in Mullaney, however, required the defendant to disprove an element of homicide before the murder charge would be reduced to manslaughter. The jury was instructed that malice aforethought, which was an essential and indispensable element of the crime of murder, could be implied unless the defendant proved that he acted in the heat of passion on sudden provocation. The presumption of malice aforethought unconstitutionally shifted the burden to the defendant to negate that element. Mullaney, 421 U.S. at 704, 44 L. Ed. 2d at 522, 95 S. Ct. at 1892.

The Illinois second degree murder statute does not require the defendant to disprove any element of first degree murder. Instead, once the State has proven first degree murder beyond a reasonable doubt, the defendant must prove by a preponderance of the evidence that a mitigating factor existed before first degree murder will be reduced to second degree murder. The statute in Patterson, which was substantially the same as the Illinois second degree murder statute (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2), required the prosecution to prove beyond a reasonable doubt that there was an intent to cause the death of another person and the death of that person or of a third person was caused by the defendant’s acts. (432 U.S. at 205, 53 L. Ed. 2d at 289, 97 S. Ct. at 2324.) No further facts were presumed or inferred in order to constitute the offense. (Patterson, 432 U.S. at 205-06, 53 L. Ed. 2d at 289, 97 S. Ct. at 2324.) The court in Patterson held that it was constitutional to require the defendant to prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance, which was a mitigating factor to reduce murder to manslaughter. Patterson, 432 U.S. at 206, 53 L. Ed. 2d at 289, 97 S. Ct. at 2324-25.

Due process does not require the State to disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. (Patterson, 432 U.S. at 210, 53 L. Ed. 2d at 292, 97 S. Ct. at 2327.) Instead, it requires the prosecution to prove beyond a reasonable doubt all elements in-eluded in the definition of the offense with which the defendant is charged. (Patterson, 432 U.S. at 210, 53 L. Ed. 2d at 292, 97 S. Ct. at 2327.) The Illinois second degree murder statute provides that a person commits the offense of second degree murder when he commits the offense of first degree murder and present is the mitigating factor that, “[a]t the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of the Code, but his belief is unreasonable.” Ill. Rev. Stat. 1987, ch. 38, par. 9— 2(a)(1).

The statute requires the State to prove beyond a reasonable doubt all the elements of first degree murder; that is, that the defendant intended the killing, by proving either that he intended to kill or do great bodily harm to the person killed or another person, or that he knew that his acts would cause death to the person killed, or that he knew that his acts created a strong probability of death or great bodily harm to the person killed or to another person. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1.) If evidence of self-defense is raised, the State has the burden of proving beyond a reasonable doubt that the defendant did not have a reasonable belief in the necessity of using deadly force. Ill. Rev. Stat. 1987, ch. 38, par. 7-1.

If the State meets its burden, the defendant is guilty of first degree murder. To reduce first degree murder to second degree murder, the defendant must then prove by a preponderance of the evidence that he believed that the circumstances justified using self-defense, but that his belief was unreasonable. (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 2(a)(2), (c).) The defendant does not have to prove by a preponderance that he had a reasonable belief in self-defense. The mitigating factors present in the second degree murder statute are not elements of the offense of first degree murder. They lessen the culpability and severity of the punishment for murder. Therefore, it is constitutional to require the defendant to prove them by a preponderance of the evidence in order to reduce the first degree murder charge to second degree murder.

Defendant then asserts that the second degree murder statute violates due process and equal protection by deterring those convicted of second degree murder from appealing their convictions because on remand, the trial court might convict the defendant of first degree murder. Contrary to the State’s argument, defendant did not waive the issue because it was not raised in the trial court. A constitutional challenge to a statute can be raised at any time. People v. Bryant (1989), 128 Ill. 2d 448, 454.

Even so, defendant’s argument fails. There is an implied acquittal of an offense where there is a guilty verdict on a lesser offense and silence as to the charged offense. (Green v. United States (1957), 355 U.S. 184, 190-91, 2 L. Ed. 2d 199, 205-06, 78 S. Ct. 221, 225-26; Ill. Rev. Stat. 1987, ch. 38, par. 3 — 4(a).) In order to be classified as a lesser included offense, all the elements must be included within the greater offense or there must be a less culpable mental state. (People v. Smith (1980), 78 Ill. 2d 298, 306; Ill. Rev. Stat. 1987, ch. 38, par. 2 — 9.) Because the elements of first and second degree murder are the same, and second degree murder requires a less culpable mental state (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), (a)(2), 9 — 2(b)), second degree murder is a lesser included offense of first degree murder. A conviction for second degree murder is, therefore, an acquittal of first degree murder. (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 4(a).) If a defendant appeals his second degree murder conviction and it is overturned and remanded for a new trial, double jeopardy bars being retried for first degree murder. Consequently, the statute does not deter appeals and is not unconstitutional.

Defendant then argues that he proved by a preponderance of the evidence that he was acting in self-defense when he shot Lloyd Williams. Defendant uses the incorrect standard. To establish self-defense, defendant must show some evidence that unlawful force was threatened against him; the danger of harm was imminent; he was not the aggressor; that he actually believed that a danger existed, force was necessary to avert the danger, and the type and amount of force was necessary; and that his beliefs were reasonable. (People v. Alcazar (1988), 173 Ill. App. 3d 344, 349; People v. Seiber (1979), 76 Ill. App. 3d 9, 13.) Once shown, the burden of proof shifts to the State to prove beyond a reasonable doubt that defendant did not act in self-defense. (People v. White (1980), 90 Ill. App. 3d 1067, 1070; Ill. Rev. Stat. 1987, ch. 38, pars. 3-2, 7 — 1.) The State has carried its burden if it has negated any one of the elements beyond a reasonable doubt. Seiber, 76 Ill. App. 3d at 13.

Defendant argues that Williams was taller and 37 pounds heavier, and Richard Green was unable to keep Williams back. Additionally, defendant states that he was permanently disabled in a 1982 motorcycle accident. Defendant then concludes that Williams was capable of doing serious bodily harm or killing defendant without the use of a deadly weapon, and had the intent to do so.

Defendant relies on People v. Estes (1984), 127 Ill. App. 3d 642, 649, where the victim had previously inflicted serious bodily harm without being armed. The victim, who was married to the defendant, was a 6-foot-tall, 200-pound crane operator, who had previously broken the defendant’s tailbone by knocking her down. (Estes, 127 Ill. App. 3d at 649.) Furthermore, the defendant did not know whether the victim had a concealed weapon. In fact, a loaded gun was found in the car from which the victim exited. Estes, 127 Ill. App. 3d at 652.

The court in Estes stated that a defendant needs only the subjective belief that he was in danger of suffering great bodily harm or death to justify using deadly force. (127 Ill. App. 3d at 651.) That subjective belief exists if “the facts and circumstances would induce a reasonable apprehension of serious bodily harm in light of the defendant’s perception of the situation at the time he employed force against his aggressor.” Estes, 127 Ill. App. 3d at 651.

While it is true, as defendant contends, that the law does not require the aggressor be armed before the use of a deadly weapon in self-defense is justified, it must appear that the aggressor is capable of inflicting serious bodily harm without the use of a deadly weapon, and is intending to do so. (Estes, 127 Ill. App. 3d at 651.) There was no evidence, however, that Williams was either capable of causing serious bodily harm to defendant without using a weapon or had the intent to kill defendant. Williams and defendant had fought before and neither suffered serious bodily harm.

The trial court found that the State proved beyond a reasonable doubt that defendant did not have a reasonable belief that deadly force was justified. The trial court indicated that Williams was unarmed and his hands were visible at all times. This finding would result in a conviction for first degree murder. Then, the trial court ruled that defendant proved by a preponderance of the evidence that he had an actual, but unreasonable, belief in his right to use self-defense, thus reducing first degree murder to second degree murder.

The determination regarding whether a killing was justified under self-defense principles depends on the surrounding facts and circumstances and is a question of fact for the trial judge. (Alcazar, 173 Ill. App. 3d at 349.) The trial court decision will not be disturbed unless the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of guilt. (People v. Price (1987), 158 Ill. App. 3d 921, 926.) The trial court did not err in its finding that the State negated self-defense beyond a reasonable doubt. Therefore, the second degree murder conviction was proper.

Defendant next asserts that he was improperly convicted of two counts of second degree murder for only one crime. The State agrees. There can be only one murder conviction and one sentence for one count of murder where there was only one death. (People v. Hood (1989), 191 Ill. App. 3d 129, 134.) Therefore, the conviction on one count of second degree murder must be vacated.

Finally, defendant contends that the trial court abused its discretion in sentencing him to 10 years’ imprisonment. The defendant argues that the sentence does not take into consideration the mitigating factors of his general moral character, his lack of any criminal history, his age, his natural inclination or aversion to commit crime, and the stimuli which motivated his conduct. (People v. Morgan (1974), 59 Ill. 2d 276, 282.) Defendant emphasizes his lack of criminal history, his support for his family, the case’s facts, and sentences given in similar cases. Moreover, he asserts that the sentence does not serve the purpose of restoring the defendant to useful citizenship.

We reject defendant’s argument that his sentence is excessive when compared to sentences for similar crimes. The trial court has discretion to impose a suitable sentence. (People v. La Pointe (1981), 88 Ill. 2d 482, 501.) The trial judge is in a better position to determine the proper sentence, which depends on many factors, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age. (People v. Cox (1980), 82 Ill. 2d 268, 279.) The court can also consider the force employed and the physical manner in which the victim’s death occurred, but not the death itself. People v. Smith (1990), 195 Ill. App. 3d 878, 885.

Defendant was convicted of second degree murder, a Class 1 felony (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(d)), which carries a sentence of 4 to 15 years’ imprisonment. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(4).) The trial court can also order a sentence of probation, unless imprisonment is necessary to protect the public or probation would deprecate the seriousness of the defendant’s conduct and would be inconsistent with the ends of justice. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—1(a).) Probation is not an inherent or statutory right, but rather a discretionary matter for the court. (People v. Sprouse (1981), 94 Ill. App. 3d 665, 677.) Although the trial court is required to consider rehabilitation as an objective of the sentence (Alcazar, 173 Ill. App. 3d at 356), it is not required to give greater weight to the defendant’s potential for rehabilitation than to the seriousness of the ciime. People v. Shumate (1981), 94 Ill. App. 3d 478, 485.

The trial court considered probation, stating that such a sentence would deprecate the seriousness of defendant’s act and would be inconsistent with the ends of justice. The trial court also took into consideration defendant’s lack of any criminal history and his caretaking functions for his family. Furthermore, there is no evidence that the trial court considered the victim’s death as an aggravating factor. Therefore, in light of the court’s clear statement that it considered all relevant factors, the trial court did not abuse its discretion in sentencing defendant to 10 years’ imprisonment.

Based on the foregoing, the judgment of the circuit court for one count of second degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9— 1(a)) is affirmed. The second count of second degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a)) is vacated. The sentence of 10 years’ imprisonment is affirmed.

Affirmed in part; vacated in part.

RIZZI and TULLY, JJ., concur.


author: JUSTICE WHITE

text:
    WILLIAM JESSEN, Plaintiff-Appellant, v. SVERDRUP AND PARCEL AND ASSOCIATES, INC., Defendant-Appellee (Shappert Engineering Company, Defendant).
    First District (3rd Division)
    No. 1-89-3159
    Opinion filed August 28, 1991.
    Rehearing denied January 8, 1992.

      A. Denison Weaver, Ltd., of Chicago, for appellant.
    Hinshaw & Culbertson, of Chicago (Stephen R. Swofford, Kevin R. Sido, Michael J. Flaherty, and Gerald Haberkorn, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff William Jessen appeals from an order of the circuit court denying his request for leave to file a second amended complaint.

Plaintiff was injured while working on the La Salle Bridge project in La Salle County, Illinois. At the time he was injured, plaintiff was employed by S.J. Groves & Company as a carpenter. The injury occurred when plaintiff was stepping on a retaining wall used as a means of gaining access to the La Salle Bridge jobsite.

Plaintiff filed suit against Sverdrup & Parcel and Associates, Inc., a consulting engineer for the project, and Shappert Engineering Company, one of the general contractors on the project, charging them with violations of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, pars. 60 through 69). Defendants filed motions for summary judgment alleging that they had no right to supervise or otherwise exercise control over the work of plaintiff or his employer.

On the same day defendants’ motions were filed, plaintiff filed an amended complaint omitting the Structural Work Act claim and charging defendants with negligence for failing to provide a safe means of ingress and egress to the project.

Sverdrup filed a section 2 — 619 motion to dismiss plaintiffs amended complaint. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619.) In this motion, defendant alleged that under its contract for the La Salle Bridge project, it was required only to determine potential sites and develop design specifications for the bridge and, therefore, it had no duty to provide a safe means of ingress and egress to the work site.

The trial court granted Sverdrup’s motion, agreeing that the contract imposed no duty on it to provide safety specifications for the work site. Following the trial court’s ruling, plaintiff made an oral motion for leave to amend. This motion was denied, and the court’s order was made final and appealable pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Subsequently, plaintiff filed a motion to vacate the Rule 304(a) language and for leave to file a second amended complaint.

In the second amended complaint, plaintiff alleged that, under the contract for the bridge project, defendant was required to provide for drainage, drainage areas, cross drains, and subdrainage in and around the area in which the bridge was to be constructed. Plaintiff alleged that defendant negligently and carelessly failed to provide for adequate drainage for the area and negligently and carelessly provided for the construction of the retaining wall without providing means for water runoff from the areas adjacent to the wall. Plaintiff alleged that as a result of Sverdrup’s negligence, excessive water accumulated upon the earth embankment adjacent to the retaining wall, creating a hazardous condition for persons who were required to use the embankment as a means of ingress and egress to the work site, and causing plaintiff to fall while traversing the embankment.

Following a hearing, the trial court entered an order refusing to vacate its earlier ruling and denying plaintiff leave to file an amended complaint. This appeal followed.

In his briefs on appeal, plaintiff acknowledges that under the supreme court’s decision in Ferentchak v. Village of Frankfort (1985), 105 Ill. 2d 474, 475 N.E.2d 822, the trial court correctly dismissed his first amended complaint. However, plaintiff argues that the trial court abused its discretion when it denied leave to file a second amended complaint. We agree.

Section 2 — 616(c) of the Code of Civil Procedure states that a “pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.” (Ill. Rev. Stat. 1987, ch. 110, par. 2— 616(c).) Despite the broad nature of the language of section 2 — 616(c), courts have ruled that the question of whether an amendment should be allowed is addressed to the discretion of the trial court and that it is not an abuse of discretion to deny a motion for leave to amend when the proposed amendment would not cure the defect in the pleading. Prince v. Atchison, Topeka & Santa Fe Ry. Co. (1981), 95 Ill. App. 3d 856, 420 N.E.2d 737; Byron Chamber of Commerce, Inc. v. Long (1981), 92 Ill. App. 3d 864, 415 N.E.2d 1361; Kittay v. Allstate Insurance Co. (1979), 78 Ill. App. 3d 335, 397 N.E.2d 200.

In dismissing plaintiffs first amended complaint, the trial court found that under Ferentchak, the scope of Sverdrup’s duty was defined by the terms of the contract and that because the contract imposed no duty on Sverdrup to provide for work site safety, it could not be held liable for the failure to do so. In his second amended complaint, plaintiff alleged that Sverdrup’s contract imposed an obligation on it to provide for proper drainage in and around the jobsite. Plaintiff further alleged that, therefore, under the contract, Sverdrup had a duty to provide for proper drainage, that Sverdrup breached this duty, and that Sverdrup’s breach of duty was the proximate cause of plaintiff’s injury. We find that these allegations were sufficient to cure the defects of the first amended complaint.

In arguing that the trial court properly denied leave to amend, Sverdrup contends that the language in the contract concerning drainage imposed an obligation on it to design a bridge that would drain properly during rainstorms; it did not obligate Sverdrup to provide plans for drainage during construction. While this may be true, we agree with plaintiff’s argument that the issue is not properly before this court since the trial court has not yet ruled on the sufficiency of the second amended complaint. Accordingly, we decline to address the issue.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and this cause is remanded for further proceedings.

Judgment reversed and cause remanded for further proceedings.

RIZZI and GREIMAN, JJ., concur.

      This opinion was authored prior to Justice White’s retirement.


text:
    UPTOWN NATIONAL BANK OF CHICAGO, Plaintiff-Appellant, v. EVA STRAMER, Defendant-Appellee (Foodservice Imports, Inc., et al., Defendants).
    First District (3rd Division)
    No. 1-90-2500
    Opinion filed August 28, 1991.
    David F. Holland, of Des Plaines, for appellant.
    Ashman & Associates, of Chicago, for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Uptown National Bank of Chicago, a national banking association, appeals from the dismissal of count IV of its second amended complaint, which was brought against defendants Foodser-vice Imports, Inc., Max Stramer, and Eva Stramer in connection with defaulted loans. Plaintiff argues that its complaint sufficiently stated a cause of action for an equitable lien against Eva Stramer.

Plaintiffs complaint alleged the following facts. In January 1983, Max Stramer formed Foodservice and obtained loans from plaintiff by using financing statements and other forms of representations that falsely and fraudulently misrepresented his and Foodservice’s assets, liabilities, and income. In March 1985, Max Stramer informed plaintiff of his inability to make interest payments due on the loans and requested an extension of time. The Stramers furnished plaintiff with a financial statement that showed a substantial net worth in excess of all indebtedness and included Illinois and Florida residences that had been financed by plaintiff. But the Stramers did not have some of the assets claimed in the financial statement.

A loan agreement was entered into for the renewal of two loans to Max Stramer and one loan to Foodservice. As a condition to extend the existing credits, Eva Stramer was required to be a co-borrower on the notes of Max Stramer and a guarantor on the notes of Foodservice. The agreement stated in part:

“3. Max Stramer and Eva Stramer and each of them will not sell or otherwise dispose of any of their personal assets nor allow any liens to be placed thereon without the express permission of Lender.
8. Max Stramer and Eva Stramer hereby represent and warrant that there has been no material change in their financial condition from the condition disclosed in their personal financial statement dated March 31, 1985, which said statement both Max Stramer and Eva Stramer certify to be true, complete and correct.”

Max Stramer signed once as the president of Foodservice and once as an individual, and Eva Stramer signed as an individual.

Max Stramer, as president of Foodservice, signed a note for $299,732.55, which stated in part:

“As security for the payment of this Note and for the payment and performance of all other existing and future indebtedness, obligations and liabilities, direct or contingent, of the Undersigned, or any of them, to the Lender, the Undersigned hereby pledges, assigns, transfers and delivers and grants to Lender a security interest in the following property and in all other property of the Undersigned now or hereafter in the possession or control of the Lender (herein called ‘Collateral’) and in all proceeds thereof: UCC-1 ON ALL ACCOUNTS RECEIVABLE, INVENTORY, FIXTURES AND EQUIPMENT NOW OWNED OR HEREAFTER ACQUIRED.

The Undersigned agree(s) to deliver to the Lender forthwith upon its demand, such additional Collateral as it may request from time to time should the value of the Collateral decline or should the Lender deem itself insecure.”

In February 1986, about three months prior to his death, Max Stramer conveyed his interest in the real properties to Eva Stramer. In September 1989, Eva Stramer sold the Florida property and no longer had any of the sale proceeds, some of which had been applied to the mortgage on the Illinois property.

Plaintiff claimed a right to an equitable lien on the real and personal property listed in the financial statement. It alleged that Eva Stramer’s sale of the Florida property and the disposal of the sale proceeds denied its right to an equitable lien. Plaintiff prayed for findings that a substantial number of loans were obtained from plaintiff through the fraud of Max Stramer, that the loan proceeds were used to pay in part a loan “relating to” the Illinois property, and that Eva Stramer derived her title to this property from Max Stramer.

Eva Stramer’s motion to dismiss count IV was granted on the basis that plaintiff failed to state a cause of action.

Uptown argues on appeal that it was entitled to an equitable lien under the loan agreement because the Stramers agreed not to dispose of their personal assets, which were additional security for the loan, and because the personal financial statement sufficiently identified the property for the purpose of creating an equitable lien.

An equitable lien is the right to have property subjected to the payment of a claim. (W.E. Erickson Construction, Inc. v. Congress-Kenilworth Corp. (1985), 132 Ill. App. 3d 260, 263, 477 N.E.2d 513.) The essential elements of an equitable lien are a debt, duty, or obligation owing and a res to which that obligation fastens and which is identified or described with reasonable certainty. Marbach v. Gnadl (1966), 73 Ill. App. 2d 303, 313, 219 N.E.2d 572.

Equitable liens have been imposed where contracts manifested the intent that particular property or funds be security for debts wherever there has been a promise to convey or assign the property as security. (E.g., Marbach, 73 Ill. App. 2d at 315 (sellers of real estate were entitled to an equitable lien on fire insurance proceeds); Paine/Wetzel Associates, Inc. v. Gitles (1988), 174 Ill. App. 3d 389, 528 N.E.2d 358 (real estate brokerage agreement provided that, in the event of defendant’s independent sale or lease of the property, broker was granted a lien).) But if a contract expressly covered the entire subject matter and did not provide for a lien, a lien will not be inferred. Pruitt Office Machines, Inc. v. Liberty National Bank (1950), 341 Ill. App. 146, 149, 93 N.E.2d 104 (lessee not entitled to lien where lease provided for particular amount of damages in the case of lessor’s cancellation of lease); Bankers Trust Co. v. Chicago Title & Trust Co. (1980), 89 Ill. App. 3d 1014, 1018, 412 N.E.2d 660 (a contract stated that whenever in a particular year the client obtained a new land loan, the attorney would immediately be paid his fees, but it did not intend to create a security interest in the loan proceeds); Hibernian Banking Association v. Davis (1920), 295 Ill. 537, 543-44, 129 N.E. 540 (no intention to make property security for a debt was disclosed in an agreement to apply the proceeds of the sale of land to the payment of a debt).

The Foodservice promissory note provided for a security interest only in Foodservice’s accounts receivable, inventory, fixtures, and equipment. The Stramers’ personal assets could have been included in the promissory note, but they were omitted. An equitable lien cannot be imposed under the contract because the parties did not intend these assets to be security. There was no intention contained in the loan agreement to create a security interest in any of the real or personal property of Eva Stramer.

Plaintiff also argues that it is entitled to an equitable lien because some of the proceeds of the loans fraudulently obtained by Max Stramer were applied to the mortgage on the Illinois property. Although plaintiff did not allege that Eva Stramer was involved with her husband in obtaining the loans, it argues that she should not be permitted to benefit from his fraud. However, there was no allegation of any fraud committed by Eva Stramer and therefore there was no unjust enrichment.

Equitable liens may be imposed in the absence of an express agreement out of considerations of fairness. (E.g., Erickson, 132 Ill. App. 3d at 270 (company entitled to an equitable lien for the reasonable value of the permanent improvements it made); Calacurcio v. Levson (1966), 68 Ill. App. 2d 260, 263-64, 215 N.E.2d 839 (equitable lien on property based on contract payouts made by plaintiff for the owners with plaintiff’s money).) There is no equitable basis to impose an equitable lien on Eva Stramer’s personal property; the existing personal property has no relation to the allegedly prohibited sale of the Florida real property. There is also no equitable basis to impose an equitable lien on the Illinois real property because there was no allegation that Eva Stramer had defrauded plaintiff.

The judgment of the circuit court is affirmed.

Affirmed.

RIZZI and GREIMAN, JJ., concur.


author: JUSTICE LINN

text:
      In re MARRIAGE OF CLARETTE E. KRIEGSMAN, Petitioner-Appellee, and STEVEN A. KRIEGSMAN, Respondent-Appellee (Pedersen and Houpt, P.C., Appellant).
    First District (4th Division)
    Nos. 1-89-3348, 1-90-2049 cons.
    Opinion filed August 29, 1991.

      Pedersen & Houpt, P.C., of Chicago (Marc D. Janser and Cynthia L. Meltzer, of counsel), appellant pro se.

    Beermann, Swerdlove, Woloshin & Barezky, of Chicago (Howard A. London, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Pursuant to a judgment of dissolution of marriage, the trial court awarded custody of the minor child to the father, Steven Kriegsman, divided the parties’ property, and awarded attorney fees. The mother, Clarette Kriegsman, fled the jurisdiction with the child during the proceedings and has remained hidden ever since. Her attorneys, Pe-dersen & Houpt, P.C., continued to represent her in her absence. Although the trial court awarded Pedersen & Houpt substantial attorney fees for its services, to be collected from its own client, Clarette, the firm appeals on the ground that all property awarded to her was put into a trust fund and made available for other uses, which had the effect of nullifying the fee award.

We affirm.

Background

Clarette Kriegsman filed a petition for dissolution of marriage in May 1987. The ensuing litigation was bitter and protracted. In October of 1988 Clarette fled the jurisdiction with the parties’ toddler, Falcon, and she remains at large. Thereafter, she was held in contempt of court. Steven Kriegsman, who had maintained close and frequent contact with his son, has undertaken a massive search for his son at substantial expense.

Trial proceeded in Clarette’s absence, and the court heard evidence regarding the parties’ assets. Clarette was awarded one-half of the parties’ cooperative apartment, which Steven could purchase from her for $65,000; stocks in her possession or control at the time she left, valued at $72,000; personal property held by her or her father including jewelry, sculpture, and bank accounts; and her car. She also was found to have a nonmarital interest in Loop Limited Partnership, the value of which was shown to be between $13,271 and $30,752. Steven was awarded his business, valued at $50,000, and his one-half interest in the parties’ cooperative apartment, as well as his personal property and paintings, plus his car.

In the judgment of dissolution, the trial court impressed a trust upon Clarette’s interest in the cooperative apartment and the stock pursuant to section 503(g) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 503(g)). The trust was intended to facilitate Falcon’s return to Illinois, at which time any assets remaining in the trust would be available for the payment of the attorney fees. Pedersen & Houpt appeals from this and other findings in the trial court’s judgment of dissolution (appeal No. 1-89-3348).

Several months after the judgment of dissolution was entered, Steven petitioned the court to credit the money he had spent searching for Falcon against the money he owed Clarette for her share of the marital residence (held in the section 503(g) trust). Since the trial court had set up the trust for the best interests of the child, and returning him to his father’s custody in Illinois furthered that interest, the trial court granted Steven the requested relief. The court-appointed trustee reviewed Steven’s evidence of payment, and the court held an in camera hearing on the prove up of Steve’s claimed expenses. At Steven’s request, his ex-wife’s attorneys were barred from the hearing because of his fear that the proof of his search for Falcon might reveal information that could help Clarette continue to elude Steven’s investigators. Pedersen & Houpt believes that its fee award was rendered illusory by the $65,000 in credits given to Steven; accordingly, it also appeals from the trial court’s rulings in the post-judgment matter (appeal No. 1— 90-2049).

In the judgment for dissolution of marriage, the trial court awarded Pedersen & Houpt all of the fees and costs it had requested, totalling $62,467.50 in fees and $5,096.03 in costs. The court further ruled that its client, Clarette, was the party solely responsible for payment of the fees to Pedersen & Houpt. Moreover, the court assessed her $11,000 of the fees Steven incurred in defending against matters that were directly triggered by her leaving, including the attempt of Clarette’s parents, Patricia and A1 Frank, to intervene in the litigation and obtain legal custody of their grandson. The trial court expressly held that none of Clarette’s attorney fees were to be paid by Steven.

Opinion

Pedersen & Houpt represents its own interests in these consolidated appeals. Consequently, none of the trial court’s findings are in issue except those that bear directly on the payment of Pedersen & Houpt’s attorney fees. The law firm does not, and cannot, contest the fairness of the property division itself, since it appears the court roughly split the parties’ assets. Nor does the law firm argue that the court awarded Clarette insufficient assets from which its fees could be paid. Rather, the firm claims that she was not shown to have any income and that Steven should have been ordered to pay its fees because he has the financial resources to pay. The firm also argues that the court in effect nullified the fee award by impressing the property awarded to Clarette with a trust and then allowing the trust property to be diminished or depleted by Steven’s claims for reimbursements of money he spent searching for Falcon. Finally, Pedersen & Houpt challenges the trial court’s decision to allow Steven to prove his expenditures in a closed, in camera session from which the firm was barred on the grounds that Steven did not wish his ex-wife’s attorneys to learn the steps his private investigators had taken to locate the child.

STANDING

Steven challenges the entire appeal on the grounds that Peder-sen & Houpt lacks standing to appeal from the trial court’s allocation of fees or from the creation, funding, and distribution of the trust. Although he acknowledges that an attorney is given standing to obtain a fee award in his own name under section 508(c) of the Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 508(c)), Steven claims that the law firm has no right of appeal from the allocation of fees between the parties or to contest the creation and use of a section 503(g) trust, which permits property to be placed in trust for the benefit of the child.

Section 508 of the Act provides a mechanism whereby a party to the proceedings may be awarded attorney fees from the other spouse under certain conditions. Subsection (c) states as follows:

“(c) The court may order that the award of attorney’s fees and costs hereunder shall be paid directly to the attorney, who may enforce such order in his name, or that they be paid to the relevant party. Judgment may be entered and enforcement thereof had accordingly.” Ill. Rev. Stat. 1989, ch. 40, par. 508(c).

Section 508 creates an economic incentive to attorneys who otherwise may decline to represent a spouse with meager financial resources. By allowing fees to be awarded as part of the divorce proceedings, either on an interim basis or at the end, this section provides an exception to the general situation in which a lawyer must sue his client for unpaid bills and enforce the judgment in supplemental proceedings. Subsection (c) allows an attorney as the real party in interest in a fee petition to obtain the fee award in his own name.

While we believe that attorneys have sufficient interest in their fee awards to satisfy the basic concept of standing (a personal stake in the outcome of matters affecting the fee award), we also believe that the divorce attorney as creditor is not on firm footing when challenging the trial court’s division and distribution of the parties’ assets. In the pending case, the client, Clarette, would normally be the one to contest the property distribution as it related to her ability or lack of ability to pay her attorneys. She chose to forgo that right by violating the court’s orders and absconding with the child, leaving her former husband, her parents, assorted lawyers, and the courts to deal with the litigation she initiated and then abandoned. Because she is the proper party to contest or challenge the court’s substantive rulings, Pedersen & Houpt is in the difficult position of asserting rights that are actually derivative of hers. Because we cannot consider the merits of the lawyers’ claims without recognizing their general standing, however, we choose to relax strict application of the judge-made doctrine of standing in this context.

I. APPEAL NO. 1-89-3348

According to Pedersen & Houpt, the trial court failed to adhere to the law when it held Clarette instead of Steven responsible to pay the fees incurred on her behalf. In relevant part, section 508(a) of the Act provides that the court, “after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred or, for the purpose of enabling a party lacking sufficient financial resources to obtain or retain legal representation, expected to be incurred by the other spouse.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 40, par. 508(a).

Although this language does not require the court to award fees against the other spouse, Pedersen & Houpt argues that the trial court abused its discretion in assessing fees against Clarette in light of her inability to pay and Steven’s ability to pay. See, e.g., Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 400 N.E.2d 56 (court should consider relative financial stability of each party, distribution of property, and the financial inability or ability of a spouse to pay).

The law firm contends that Clarette lost her ability to pay when the court directed most of her property award into the trust for the benefit of Falcon. Pedersen & Houpt states that the record shows that Clarette had little income and received no maintenance. Further, the firm claims that the $72,000 in stock was never proved to be in existence at the time of trial or when the judgment was entered.

On the latter point, we can only conclude that Steven is not the party required to prove the whereabouts of stock in Clarette’s possession and control at the time she fled. (See Shumak v. Shumak (1975), 30 Ill. App. 3d 188, 332 N.E.2d 177.) Nor is the trial court hamstrung by a lack of evidence caused by an absent spouse.

The record contains evidence that Clarette had, in addition to the stock, a nonmarital, limited partnership interest worth between $13,271 and $30,752. Moreover, Clarette’s access to other sources of funds has been demonstrated by her apparent ability to support herself and the child during travels that have spanned the globe. In any event, absent Clarette’s testimony as to her financial condition at the time of the hearing on the fee petition, the court could not merely speculate that she had no income or assets available. Accordingly, the court viewed the evidence of record, including her substantial amount of stock, and determined that Clarette’s attorneys failed to show that she was unable to pay her own attorney fees.

The trial court was correct. The party requesting relief has the burden of proof, and there is no presumption that a wife is unable to pay her own fees. (In re Marriage of Meyer (1986), 140 Ill. App. 3d 1031, 1036, 489 N.E.2d 906.) Accordingly, because any right of Clarette’s lawyers to tap Steven for their fees derives from their own client’s inability to pay, they had the burden of establishing that she lacked the resources. (See In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 411 N.E.2d 947.) Deficiencies of proof as to her financial condition, therefore, are attributable to them and provide no reason to reverse the trial court. It would be manifestly unjust to pick Steven’s pocket simply because he stayed within the court’s jurisdiction. We note in passing that attorneys who represent a fugitive client and incur $40,000 in fees on top of a preflight balance of $22,000 might be viewed as assuming the risk of noncol-lection.

On the issue of Steven’s ability to pay, moreover, Pedersen & Houpt cannot focus exclusively on his potential income and property without considering his basic living expenses. He has also expended significant sums in the effort to retrieve his child. The sole evidence Pedersen & Houpt cites in support of his ability to pay their fees is the fact he was awarded Vintage Vinyl, his business valued at $50,000; one-half of the parties’ apartment ($65,000); and “use of the 503(g) trust.” It is unclear whether the lawyers would have him liquidate his business and residence to pay the fees generated by their client. In any event, they fail to set forth sufficient facts in their brief to show that Steven was financially able to pay their fees. In fact, the record indicates he owed his own lawyers a balance of $37,000 due on a bill of $62,880. Therefore, unless they could prove that Steven’s payment of $67,000 to them would not deplete his assets and undermine his economic stability, Pedersen & Houpt cannot seriously claim he has the financial ability to pay it. See In re Marriage of Piccione (1987), 158 Ill. App. 3d 955, 511 N.E.2d 1157, appeal denied (1987), 116 Ill. 2d 556, 515 N.E.2d 1220; In re Marriage of Holder (1985), 137 Ill. App. 3d 596, 605, 484 N.E.2d 485 (where husband was in no better position than wife to pay her fees, parties were properly required to pay their own).

Pedersen & Houpt also terms as “punitive” the court’s refusal to require Steven to pay Clarette’s fees. The firm argues that the court improperly punished Pedersen & Houpt for its client’s “alleged contempt.”

This argument borders on the frivolous. The trial court was not punishing Clarette by holding her responsible for her own attorney fees. On the issue of the parties’ relative financial ability, the court concluded that the law firm failed to carry the burden of persuasion; therefore, the court refused to shift the liability for the fees to Steven. The court was not blaming Pedersen & Houpt for Clarette’s conduct and in fact complimented the firm on the level of representation it had provided. If the law firm wishes to assess blame for a potentially uncollectible judgment, it cannot lay the charge before the trial court. While Pedersen & Houpt’s appeal does not directly involve Clarette’s conduct, one of the natural consequences of her flight is the hardship imposed on her attorneys. While they may lose money, others have suffered immeasurable losses caused by her flagrantly immature, arrogant conduct: Steven has lost his young son. Falcon has lost his father, grandparents, friends, school, and home. His mother is a fugitive from justice.

The record demonstrates that the trial court did not punish Clarette with respect to property division, attorney fees, or any other matter. On the contrary, the trial court’s evenhandedness throughout the protracted proceedings is to be commended. Clarette’s attorneys cannot overcome the fact that it is their client’s absence, not her financial status, that has created their current collection difficulties. We conclude that the trial court acted well within its discretion in finding that Steven was not responsible for Clarette’s attorney fees.

Pedersen & Houpt next claims that even assuming the court was correct in taxing the fees to Clarette, the court abused its discretion and rendered its fee award illusory by placing most of Clarette’s assets into the section 503(g) trust. Under the terms of the court’s judgment, the trust property could not be used to satisfy the fee award until Falcon is returned to the jurisdiction. The law firm contends that the trial court could have divided the property in some other way, such as awarding one parcel of assets to Steven, one to Clarette, and one to the trust. Presumably, the firm could then attach the property awarded to Clarette.

Section 503(g) of the Act permits the trial court to “set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent child of the parties” if the court deems it “necessary to protect and promote the best interests of the children.” (Ill. Rev. Stat. 1989, ch. 40, par. 503(g).) Pedersen & Houpt does not challenge the basic authority of the court to establish the trust in this case. The trial judge entered a finding in the judgment of dissolution to the effect that “[Clarette’s] absenting herself with the minor child from the jurisdiction of this Court could present no more compelling case for the imposition of a trust pursuant to Section 503(g) for the benefit of the minor, and in particular, to secure the prompt and safe return of the child to this jurisdiction.”

The lawyers’ interest in the trust assets is obviously linked to their ability to collect their fees. The trial court had found that the firm’s fees were reasonable and necessary and accordingly awarded judgment. The Act does not require the court to impress an attorney’s lien on any specific property, however, or to give priority to collection of fee awards over the needs of a child whose welfare may depend on the trust assets being made available to the custodial parent. We therefore conclude that Pedersen & Houpt fails to set forth valid grounds upon which to attack the trial court’s imposition of a trust on Clarette’s property.

We are not denigrating the firm’s desire to collect its judgment, but the trial court is not to be blamed for declining to put the firm’s convenience in collecting its fees ahead of the interests of the child who was wrongfully taken from the jurisdiction. We hold that the trial court acted well within its discretion.

II. APPEAL NO. 1-90-2049

VALIDITY OF POST-JUDGMENT ORDER PERMITTING STEVEN TO RECEIVE CREDITS AGAINST TRUST PROPERTY

Approximately six months after the trial court entered the judgment for dissolution of marriage, Steven petitioned the court for a “determination of credits” thereunder. According to the petition, Steven had spent or incurred liability for substantial amounts of money in attempting to locate his son. While he had paid some of this money during the dissolution proceedings, he did not seek credits or reimbursements from the section 503(g) trust until approximately six months after the judgment for dissolution was entered. After preliminary challenges to the law firm’s standing, the court allowed Pedersen & Houpt to represent its own interests insofar as the ruling affected the award of attorney fees.

On June 4, 1990, six months after the petition was filed, the trial court granted Steven’s request for relief and ordered that the evidence of his expenditures be presented in camera for a prove up. The court barred Pedersen & Houpt from that hearing, in part because of the “ongoing relationship that the law firm of Pedersen and Houpt has had with [Albert Franks, Clarette’s father].” The court did not think it would serve the best interests of the child for the law firm to participate in the closed hearing in which details of Steven’s investigation into Falcon’s whereabouts would be revealed. The trial court appointed a trustee, however, as an officer of the court and directed the trustee to review Steven’s expenses and to evaluate their legitimacy and reasonableness.

Because of her absence, Clarette Kriegsman has neither challenged the trust imposed on her share of the property nor appealed from the trial court’s findings in the judgment for dissolution of marriage. Hence, the trial court correctly determined that Pedersen & Houpt could not challenge Steven’s petition except insofar as it affected the firm’s fee award.

Pedersen & Houpt first contends that the trial court erred in modifying the property award set out in the judgment for dissolution because Steven’s petition failed to satisfy the requirements for post-judgment relief pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401).

The trial court found, however, that the disposition of the marital residence in the judgment of dissolution was “in the nature of child support” and as such may be modified at any time upon a showing of a substantial change in circumstances. (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) The trust in this case was expressly created to facilitate Falcon’s return, and the court commented, “Since the trust is in the nature of child support, it is my ruling that it makes absolutely no — that certainly [Steven] can get credit for funds that were spent prior to the entry of the judgment of dissolution of marriage.”

We agree with the trial court. This is not a case in which one spouse tries to alter property rights that have vested pursuant to a divorce decree. (See In re Marriage of Redmer (1982), 111 Ill. App. 3d 317, 443 N.E.2d 1075 (rejecting husband’s attempt two years after divorce to obtain exclusive possession of the former marital home on the theory that the modification of the judgment could be viewed as in the nature of “child support”).) Unlike the situation in Redmer, here Clarette’s interest in the marital residence was impressed with a trust for the benefit of the child from the outset. The terms of the judgment provide that the trust assets are to “be first expended in an effort to secure the prompt and safe return of the child” to the jurisdiction. The judgment of dissolution also requires the appointed trustee to report to the court periodically and provides that “[a]ny trust property left over after [Falcon’s return] may be sold or otherwise liquidated in order to pay the attorney’s fees set forth in this Judgment, if those fees cannot be satisfied in any other manner.”

The judgment of dissolution accordingly sets forth this priority of equitable claims against the trust assets: (1) money needed to secure Falcon’s return or otherwise serve his best interests and (2) money to pay the attorney fees, contingent upon there being assets left upon Falcon’s return and the unavailability of other sources to satisfy the fee award. Any remaining balance would belong to Clarette. Such an arrangement clearly demonstrates that Clarette’s interest in the property had not “vested” and become unalterable by the terms of the judgment for dissolution. Accordingly, we conclude that Steven was not required to proceed by way of a section 2 — 1401 petition for post-judgment relief.

The sole question remaining is whether the trial court abused its discretion in barring Pedersen & Houpt from attending or participating in the prove up of Steven’s claimed credits against the trust property. The law firm claims that, since it had standing to protect its fee award, there was no basis upon which the court could properly bar the firm from the prove up.

Contrary to Pedersen & Houpt’s position, there was an excellent reason for the court to proceed as it did. Steven had paid private investigators to locate Falcon and did not want to reveal the progress of his search to his ex-wife’s attorneys, who, incidentally, maintained an ongoing relationship with her father. The court-appointed trustee was charged with reviewing Steven’s documentation and verifying the reasonableness of the sums paid. The trial court also assured the law firm that it would be entitled to the trustee’s general report concerning the expenses incurred. The court reviewed each bill for which reimbursement or credit was requested. Following two hearings, one of which was conducted outside the presence of Pedersen & Houpt, the trial court entered an order finding that Steven had spent in excess of $65,210.02 in efforts to locate the child and that such expenditures were reasonably and necessarily incurred. Consequently, the court credited that amount as an offset against the sum of $65,000 that Steven owed Clarette for her one-half interest in the parties’ cooperative apartment. The court implemented its ruling by directing the trustee to sign the necessary papers for the assignment of Clarette’s interest in the residence to Steven.

The court declined Pedersen & Houpt’s request to participate in the in camera hearing because “that might imperil the safe return of [Falcon] to the jurisdiction, and that has to be of primary importance.” In such a sensitive matter the court was not required to choose an alternative way of ensuring confidentiality, such as ordering the law firm not to reveal details of Steven’s ongoing search for his son.

In reviewing the entire case, we find no abuse of discretion whatsoever, even though the incidental result of the court’s rulings may be, as the law firm complains, to “give with one hand and take away with the other.”

For the foregoing reasons, we affirm the trial court in all respects.

Affirmed.

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