author: JUSTICE O’CONNOR

text:
      In re MARRIAGE OF ERIKA BENEVENTO, Petitioner-Appellant and Cross-Appellee, and FRANK BENEVENTO, Respondent-Appellee and Cross-Appellant.
    First District (3rd Division)
    No. 82—2741
    Opinion filed September 21, 1983.

      Lawrence Jay Weiner, Fredric Bryan Lesser, and Lee M. Weisz, all of Weiner, Neuman & Spak, and Jack R. Davis, both of Chicago, for appellant.
    Edward D. Rosenberg, Steven R. Lake, Alan J. Toback, and Mary D. Paulsen, all of Lake, Rosenberg & Associates, Ltd., of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal in a marriage dissolution case by Erika Benevento, petitioner, from that portion of the order of the circuit court of Cook County awarding permanent custody of the couple’s SVa-year-old daughter, Jennie, to respondent, Frank Benevento, with liberal visitation rights to petitioner. Respondent cross-appeals from that portion of the order which awarded petitioner $4,163 in attorney fees, contending that the amount is excessive.

The parties had been married for three years when the petition for dissolution was filed. It was the first marriage for respondent, who was 51 years old at the time of trial, and the second for petitioner, who was 42 years old at the time of trial. One child, Jennie, was born to the parties. Petitioner also has. three children by a prior marriage, who lived in the marital home with their mother, respondent and their half-sister, Jennie. Roy Boland, 21, attends college; Janet Boland, 17, is a high school student; Randy Boland, 18, the middle child, also attends high school. He is autistic.

Gertrude Heckens, a mutual family friend of the parties, testified that petitioner kept a clean house and that all of the children were neat, clean and well-dressed. Petitioner testified that she has spent all her time caring for her children since the first one was born. She testitled to her daily routine of care for Jennie and how she takes her shopping and to the doctor’s office when necessary. She also stated that respondent never participated in the care of Jennie, never changing her diapers or feeding her. Petitioner had sole responsibility for Jennie’s toilet training; respondent did not help her. She further stated she had to beg respondent to put safety locks on the cabinet doors to prevent Jennie from getting hold of dangerous substances and that respondent kept Jennie up past her bedtime.

Respondent testified that he took care of his daughter. He stated that petitioner does not properly care for Jennie and does not feed her properly. He also stated that petitioner has left Jennie alone at times. He further testified that he took his daughter for walks and took her to the zoo.

Dr. Marvin Ziporyn, a psychiatrist, testified at trial. He examined both parties and also Randy. He found no mental disorders in either petitioner or respondent. He testified that petitioner was very concerned about the welfare of her children, but was defensive about Randy’s problems. Dr. Ziporyn diagnosed Randy as a juvenile schizophrenic, a condition of autism which causes him to focus on himself rather than deal with the outside world. Thus, errors in judgment can be made, which result in inappropriate behavior in a social situation. Dr. Ziporyn testified that after an initial denial, Randy told him that he (Randy) masturbates and had done so in the presence of Jennie. It was the doctor’s opinion that Randy presented a danger to Jennie because he exhibits sexually inappropriate behavior and harbors animosity toward Jennie. Dr. Ziporyn did conclude that both parents were fit for custody of their daughter. He also stated that petitioner’s defensive and protective attitude toward Randy would not offer adequate protection to Jennie. He added that this problem could be solved if Randy were permanently removed from the same home.

Randy testified that he lives with his uncle. He stated that he masturbates, but that he did not do this in front of other people. He also “whipped” his sister, Jennie, when they were just playing. He admitted that he once touched her between the legs. Randy also stated he easily gets nervous and upset and sometimes strikes people who call him names. He further stated that he loved Jennie and would not hurt her.

Testimony was presented by petitioner, respondent and respondent’s brother, Charles, about instances of masturbation by Randy. Petitioner stated she did not know about it until the onset of dissolution proceedings. Respondent and his brother both testified to instances of finding Randy masturbating. Respondent’s brother stated that he found Randy masturbating while watching television and with his sister, Jennie, present in the room. Respondent testified that he had seen Randy masturbating with his hand in Jennie’s vaginal opening.

Respondent also testified as to his health. He is overweight and suffers from hypertension and arthritis. Because of this, he limits his practice in podiatry, in which he and his brother Charles are engaged, to two days a week for several hours at a time. Petitioner testified that respondent normally awoke late in the morning and spent most of the day at a restaurant with his brother drinking coffee.

Petitioner contends the trial court erred in awarding custody of Jennie to respondent. She argues that the evidence shows she had a close, full-time, daily relationship with Jennie. It is further argued that respondent is not fit for custody because he is violent, foulmouthed, in ill health and has not taken much interest in his daughter.

The primary and paramount consideration in a child custody case is the best interest and welfare of the child. (In re Marriage of Milovich (1982), 105 Ill. App. 3d 596, 434 N.E.2d 811; Eaton v. Eaton (1977), 50 Ill. App. 3d 306, 365 N.E.2d 647.) Although the trial court has broad discretion when awarding custody of a child, it is not unlimited. (Applegate v. Applegate (1980), 80 Ill. App. 3d 81, 399 N.E.2d 330.) When the award of custody is contrary to the manifest weight of the evidence, it is the duty of a reviewing court to reverse the decision. In re Marriage of Leopando (1982), 106 Ill. App. 3d 444, 435 N.E.2d 1312, aff’d (1983), 96 Ill. 2d 114.

Petitioner relies heavily on Leopando for reversal. In Leopando, the ex-husband was granted custody of a four-year-old boy. On appeal, this court found the evidence overwhelmingly supported the mother’s contention that she should have been awarded custody of the child. (106 Ill. App. 3d 444, 449.) Petitioner points out the factual similarities of the circumstances considered in Leopando and the present case. These include the daily, close relationship of mother and child, the irregular hours of the father and the hostility on the part of the father. Petitioner also assails the trial court’s focus on the threat to Jennie by her 18-year-old autistic son, Jennie’s half-brother Randy.

As mentioned above, the evidence presented by both parties was conflicting. The trial court found both parents were fit to have custody of Jennie. However, there was a very real concern over the behavior of Randy and the threat to Jennie’s safety. Even though there was evidence that Randy had moved to an uncle’s house, the trial court was further concerned about the permanency of this move, noting that petitioner was bound by dual feelings of loyalty and affection for both children.

Petitioner argues that the court failed to give weight to the sex of the child and that of the custodial parent (In re Marriage of Lovejoy (1980), 84 Ill. App. 3d 53, 404 N.E.2d 1092) and to the health of the parties (In re Marriage of Ford (1980), 91 Ill. App. 3d 1066, 415 N.E.2d 546). However, it is no longer presumed that the mother is necessarily the better custodian for young children. (In re Marriage of Milovich (1982), 105 Ill. App. 3d 596, 434 N.E.2d 811.) The physical health of respondent is just one of many factors to be weighed by the trial court in determining the best interest and welfare of the child. (See Ill. Rev. Stat. 1981, ch. 40, par. 602(a)(5).) Evidence of respondent’s health problems was before the court and argued by counsel. These factors are properly considered along with the interrelationship of the child with her siblings. Ill. Rev. Stat. 1981, ch. 40, par. 602(a)(3).

The trial court had the opportunity to observe the parties and the other witnesses and thus had a superior vantage point to assess and evaluate their temperaments and personalities. (In re Marriage of Leopando; Comiskey v. Comiskey (1977), 48 Ill. App. 3d 17, 366 N.E.2d 87.) We have reviewed the record and find that the decision of the trial court granting custody of Jennie to respondent, her father, is not contrary to the manifest weight of the evidence, nor does it constitute an abuse of discretion.

Respondent argues on cross-appeal that the amount of petitioner’s attorney fees he was ordered to pay is excessive. It is well settled that the allowance of attorney fees rests within the sound discretion of the trial court and such an award will not be reversed unless the trial court has clearly abused its discretion. (Canady v. Canady (1964), 30 Ill. 2d 440, 197 N.E.2d 42; Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 373 N.E.2d 576.) It is also settled, however, that a court of review will not hesitate to reduce the fees awarded if they are unreasonably high. Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 400 N.E.2d 56.

We are well aware of the criteria to be considered in determining the award of attorney fees. (E.g., In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 421 N.E.2d 1308.) The petition for fees showed a specific number of hours, including 13 hours in court. It contained explanatory references indicating what was accomplished during the time referred to. No challenge was made at trial that inordinate and inflated time was reported in the petition for fees. All that appears in the record is a bare allegation that less time could have been spent on this matter. Petitioning counsel stated that the petition explained the time expended on this case. Respondent makes no argument in this regard on appeal. It is argued, however, that no novel areas of family law were litigated. In his brief, respondent argues that the amount of fees was never demonstrated to be reasonable and necessary. In fact, the only argument appears to be that petitioner’s counsel is not an “expert” in matrimonial law as certified by a matrimonial lawyers association.

The trial court properly applied its expertise and experience in this matter. (Carvallo v. Carvallo (1978), 62 Ill. App. 3d 394, 378 N.E.2d 1288.) Our examination of the record reveals that the award of fees was warranted and did not involve an abuse of discretion.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

RIZZI and WHITE, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
    EVANGELICAL TEACHER TRAINING ASSOCIATION, Plaintiff-Appellee, v. JOHN LOTUS NOVAK, Du Page County Treasurer, Defendant-Appellant.
    Second District
    No. 82—822
    Opinion filed September 28, 1983.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (George J. Sotos, Assistant State’s Attorney, of counsel), for appellant.
    James M. Huck, Jr., and Mark N. Pera, both of Huck & Walsh, of Wheaton, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The treasurer of Du Page County appeals from a judgment which found that the property of the Evangelical Teacher Training Association, an Illinois Not-for-Profit Corporation (ETTA), was not used entirely for religious purposes and thus was not entitled to tax exemption for the 1981 tax year.

Between 1977 and 1980 ETTA’s headquarters in Wheaton were exempted from real estate taxes. In 1981, the supervisor of assessments for Du Page County filed a complaint with the Du Page County Board of Review challenging the exemption on the basis that the property was not used exclusively for religious purposes. (Ill. Rev. Stat. 1979, ch. 120, par. 500.2.) ETTA then filed a complaint in the circuit court to enjoin the revocation of its tax exempt status and the collection of the taxes.

ETTA was organized in 1930 by five Bible colleges. ETTA’s purpose, as expressed in its charter, was to upgrade Christian education at varied academic levels including seminary studies, adult education, and Sunday school activities. Since 1930, it has grown to include 208 members. All of its members are approved schools, liberal arts and Bible colleges, seminaries and Bible institutes.

Biannual corporate meetings are attended by delegates elected from each of its member organizations. Those delegates elect members who sit on ETTA’s board of directors. Those directors appoint the corporate officers, and elect an executive committee.

Dr. Paul Loth, who began his professional career as a minister, and ETTA’s president since 1961, testified at the hearing.

Loth and his son, a seminary graduate and a Ph.D., who also works for ETTA, have numerous speaking engagements at local chapel services and classes, as well as at national conferences on the subject of Christian education. They lecture at member colleges and give advice to local faculty on the training and preparation of seminary students. No fee is charged for these speaking services.

In addition to speaking and lecture services, ETTA prepares materials for 14 separate Bible course offerings, which include texts, cassette tapes, overhead masters, instructor’s guides and lesson plans. The course offerings stress Bible lessons as well as Christian education techniques.

The materials are designed for use in seminaries, in adult education classes in local churches, and in Sunday schools. Qualified graduates of member schools are eligible to teach the courses. ETTA and member schools jointly issue a diploma to seminary graduates, certifying the graduate’s entitlement to teach the courses, often referring such individuals to local congregations who have requested personnel to teach one of ETTA’s courses at their church.

The courses themselves are written by faculty members at member schools, who receive a token honorarium for their efforts. The course material is then reviewed by an editorial committee, composed of faculty at member schools, and by two editors employed by ETTA. Once the editorial process is complete, the course material is translated into eight languages and distributed worldwide.

Course material packets are sold at $14.95, to those who can afford to buy them. ETTA has annual net sales of course materials and texts of $270,000. No royalty is exacted by it from members or nonmembers, relating to the teaching of its courses. Approximately half of the sales of teaching aid materials are distributed to nonmember schools.

ETTA does not produce materials to be distributed free of charge, but often donates its course and text materials to libraries and to “mission schools” without charge. Losses from such distribution are balanced by its income from “high volume textbook” sales.

In addition to sales, ETTA receives income in the form of $75 annual membership fees, a $5 diploma fee, and a relatively small amount of private donations ($2,700 in the past 10 months of its fiscal year). Donations are placed into a Christian education scholarship fund to promote its teacher training program in Third World countries.

In the fiscal year between June 30, 1981, and June 30, 1982, ETTA encountered a net operating loss of $22,605.47, on gross income of $222,946. That loss was offset by interest income of $23,681, to yield a net income of $1,075.53. It maintains a “quasi-endowment fund” of $125,000, for use, inter alia, in the development of new course materials. The remaining $339,000 in book assets include such items as inventory, accounts receivable, and property holdings.

ETTA’s sole administrative office is situated on its Wheaton, Illinois, property. All of its administrative functions originate from that office. Books and materials are shipped from a separate warehouse.

ETTA advertises its programs, but not its books and materials, in various Christian oriented magazines and at conventions (a booth is often rented at conventions for such purpose). It does not offer its materials for sale at workshops, which are oriented more toward selecting and enlisting teachers for programs at local churches. In contrast, ETTA may distribute its materials free of charge during seminars conducted at schools or conventions.

Section 19.2 of the Revenue Act of 1939 exempts from property tax “[a]ll property used exclusively for religious purposes, or used exclusively for school and religious purposes ***.” (Ill. Rev. Stat. 1981, ch. 120, par. 500.2.) The question is whether the providing and promoting of a common course in teacher training which instructs on the general principles and specific methods of teaching with particular emphasis given to Bible studies, personal evangelism and missions, is within the “religious” exemption.

Whether a party has been organized and operated exclusively for an exempt purpose is to be determined from its charter and bylaws and the actual facts relating to its method of operation. Scripture Press Foundation v. Annunzio (1953), 414 Ill. 339, 349.

In People ex rel. McCullough v. Deutsche Gemeinde (1911), 249 Ill. 132, 136-37, the court noted that, as applied to uses of property, “a religious purpose means a use of such property by a religious society or body of persons as a stated place for public worship, Sunday schools and religious instruction.” In People ex rel. Carson v. Muldoon (1922), 306 Ill. 234, 238, the court with reference to Deutsche Gemeinde, however, said, “[t]his was not stated as inclusive of everything that might in the future be regarded as a use for religious purposes but as illustrative of the nature of such use.” In Scripture Press Foundation v. Annunzio (1953), 414 Ill. 339, 352, the court noted that “no decision of this court attempting to lay down an all-inclusive definition or specification of what constitutes a religious purpose,” had been called to its attention. In so commenting, the court had before it Deutsche Gemeinde. (414 Ill. 339, 350-51.) See also Community Renewal Society v. Department of Labor (1982), 108 Ill. App. 3d 773, 778-79.

The county claims ETTA’s purposes are accomplished primarily by the sale of religious materials, teacher’s training aids, and religious courses to member religious institutions for use in conducting religious activity of these institutions. It relies principally on Scripture Press Foundation v. Annunzio (1953), 414 Ill. 339, in which the religious exemption was denied. We find the case to be distinguishable in substantial respects. In Scripture Press the court noted that the incorporators and parties “were neither ordained ministers, pastors, nor representatives of any ecclesiastical or church organization.” (414 Ill. 339, 355.) Here, the duties of ETTA are controlled by its members, each of whom are themselves religious organizations; and the operation is for the sole benefit of its member organizations and such other nonmembers individuals and organizations, who may avail themselves of the services, some of whom receive services and material free of charge or below cost. In Scripture Press, the court noted that the bylaws of the corporation gave private parties power to manipulate corporate activities, and conceivably, to distribute corporate assets to themselves either in the life of the corporation or upon dissolution. (414 Ill. 339, 357-58.) Here, upon dissolution ETTA’s assets would be applied to a charitable purpose similar to that stated in its charter (Ill. Rev. Stat. 1981, ch. 32, par. 163a44) and no party could benefit personally.

The charter of ETTA states its corporate purposes which is repetitive of the preamble to the constitution of the Evangelical Teacher Training Association.

“We, representatives of Bible institutes, schools of the Bible, colleges and seminaries in the United States and its possessions (Alaska, Puerto Rico), Canada, Central America, Cuba and Philippines, in order to foster a closer cooperation among evangelical Christian institutions; to certify to the public our deep interest and concern for Christian education; to provide and promote a common course in teacher training which will give adequate attention to a study of the Bible, Personal Evangelism, and Missions as well as instruction in the general principles and specialized methods of teaching; to recognize and encourage the use of textbooks of approved orthodoxy, do hereby associate ourselves”

In Congregational Sunday School & Publishing Society v. Board of Review (1919), 290 Ill. 108, where both the charitable and religious exemptions were involved, the court found that the dominant object of the Society was to spread the gospel by the written word and that it directly promoted its “religious, charitable and beneficent purposes” (290 Ill. 108, 123) by the distribution of its religious and moral books and Sunday school supplies. Thus, the purpose of the Society was accomplished by the effect on the minds and lives of the children and adults who read and studied its books and periodicals, enhanced by sending its workers and missionaries into areas where religious teaching had been neglected. 290 Ill. 108, 117-18. See also Inter-Varsity Christian Fellowship v. Hoffman (1978), 62 Ill. App. 3d 798, 801.

We recognize that both Congregational Sunday School and Inter-Varsity Christian Fellowship involve claims based on both religious and charitable purposes while this appeal is confined to only the claim for religious exemption. While the analysis required for charitable purposes may not be identical in all situations with that applicable to the religious exemption, it is a fair inference from the authorities that many of the same factors may be common to both claims for exemption in determining whether a religious or secular purpose is being performed. Thus in Congregational Publishing, the court noted, “they are so closely associated that we will discuss them together.” Congregational Sunday School & Publishing Society v. Board of Review (1919), 290 Ill. 108, 112. See also Scripture Press Foundation v. Annunzio (1953), 414 Ill. 339, 357-58.

While the county broadly asserts that ETTA’s stated purpose to improve Christian education at academic and local levels, is only accomplished through the sale of its religious books and materials to others, who in turn conduct the “religious” oriented activity, the opposite is manifest from the record. The chief officers of ETTA are both ministers and doctors of education. Their activities are primarily directed toward the teaching and demonstration of teacher training techniques, as is disclosed by their exhaustive travel, lecture, and workshop schedule. These travel and speaking activities serve to directly accomplish ETTA’s corporate purpose, the promotion of Christian education, in a manner which could not be achieved through the mere sale or distribution of its books and religious materials.

We conclude that ETTA has met its burden of proof to establish its qualification for exemption from real estate taxation pursuant to section 19.2 of the Revenue Act of 1939. The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

NASH and VAN DEUSEN, JJ, concur.

      The parties have not raised any question of procedures under the provision of the Revenue Act of 1939, which applied to the denial of tax exempt status for 1981. (Ill. Rev. Stat. 1979, ch. 120, par. 589(6).) We therefore do not address the question.


author: JUSTICE MEJDA

text:
    CELIA Z. PAREDES, Plaintiff and Counterdefendant-Appellee, v. FERNANDO JESUS PAREDES, Defendant and Counterplaintiff-Appellant (State of Utah, Plaintiff-Appellee).
    First District (5th Division)
    Nos. 83—362, 83—994 cons.
    Opinion filed August 5, 1983.
    Rehearing denied October 18, 1983.

      Terrence Michael Jordan, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Catherine Quattrocchi and James Kogut, Assistant State’s Attorneys, of counsel), for appellees.

      The original caption in the Utah certification reads: “Celia Z. Paredes and STATE OF UTAH, BY AND THROUGH DIRECTOR, DEPARTMENT OF SOCIAL SERVICES, AND Petitioner vs. Fernando Jesus Paredes Respondent.

   JUSTICE MEJDA

delivered the opinion of the court:

This action was initiated by the State of Utah to obtain reimbursement of public aid monies paid to Celia Z. Paredes (Celia) for the support of the children of Celia and Fernando Jesus Paredes, respondent, pursuant to the Revised Uniform Reciprocal Enforcement of Support Act (URESA) (Ill. Rev. Stat. 1981, ch. 40, par. 1201 et seq.). In appeal No. 83 — 362, respondent appeals from the order of the circuit court striking those portions of his answer stating certain affirmative defenses and also striking his counterclaim against Celia. In appeal No. 83 — 994 respondent appeals from a final order entered sua sponte dismissing without prejudice the entire case after a hearing on the merits but before entry of judgment. The two appeals are consolidated for review.

The following issues are raised on appeal: (1) whether in an URESA proceeding for reimbursement of public aid monies paid out as child support by an assignee State to an assignor-recipient, respondent can raise affirmative defenses alleging the recipient’s fraud and ineligibility to receive those funds; (2) whether in an URESA action for reimbursement of such public aid a recipient named as a co-petitioner has submitted herself to the jurisdiction of the Illinois courts so as to be subject to respondent’s counterclaim for maintenance and damages for fraud and conversion; and (3) whether the trial court erred in dismissing this case sua sponte without prejudice after trial on the merits but before entry of judgment.

The State of Utah on January 13, 1983, filed an original petition for reimbursement of support in the District Court of the Third Judicial District in and for Salt Lake City, Utah, pursuant to its Uniform Reciprocal Enforcement of Support Act (URESA) (Utah Code Ann. sec. 77 — 31—1 et seq. (1982)) to obtain reimbursement of monies paid to Celia for the support of the parties’ children during the years 1973 through 1978. The petition recited that respondent’s liability to the State had not been determined by court order but that a decree of divorce held child support in abeyance. It requested judgment and reimbursement of support arrearages of $9,893 and an order for support against respondent as deemed fair and reasonable. Exhibits attached to the petition included: a certified statement of public assistance rendered; an assignment dated January 16, 1973, from Celia to the Utah State Division of Family Services of the Department of Social Services of all monies payable to her and/or her children as alimony and/ or support from respondent as a condition of receiving public assistance in Utah; a computation of arrearages of $9,893; and a certified Utah default decree of divorce granted Celia on February 1, 1968, reciting service by publication and reserving support, alimony and attorney fees until personal service could be had. The Utah court certified that the pleadings were in “proper form” and ordered “that this certificate, together with three certified copies of the petition, be transmitted to the circuit court of Cook County.”

The Utah petition was filed in the circuit court and personal service was had upon the respondent. He filed an answer alleging affirmative defense against Celia and a counterclaim naming her as counter-defendant. The affirmative defense alleged that Celia had practiced a fraud upon the State of Utah by misrepresenting her financial status and eligibility to receive support payments, including an allegation that as a member of the Mormon Church she was ineligible for public assistance from the State of Utah “for the reason that the Mormon Church provides support of children of Mormons and the State is a source of support only as a last resort.” The counterclaim contained three counts, the first alleging fraud, the second conversion, and the third for maintenance. The facts contained in the counterclaim parallel those set forth in support of the affirmative defenses. Respondent’s answer admitted that he is the father of the children named in the petition; that the order dissolving their marriage did not provide for child support; and that Celia executed an assignment of her rights, if any, to receive child support payments from the State of Utah. All other allegations of the petition were generally denied. After a hearing, respondent’s affirmative defenses were stricken and he was denied leave to plead over. Respondent’s counterclaim was also stricken. The court found no just cause to delay enforcement or appeal of those orders, and respondent initiated an interlocutory appeal (No. 83 — 362). Subsequently, after a hearing on the merits of the URESA petition, the trial court entered its order of April 5, 1983, which, sua sponte, dismissed the petition without prejudice. Respondent also appeals this order (No. 83 — 994).

Opinion

Petitioner first contends that in an URESA action for reimbursement of public assistance paid by the State of Utah for support of his minor children, he has the right to raise affirmative defenses alleging the recipient’s (Celia’s) fraud and ineligibility to receive public assistance in Utah. The merits of this contention, however, are dubious in the first instance in that the Utah petition seeks recovery of public assistance paid to the parties’ children and does not involve public assistance paid for the benefit of Celia. Thus, Celia’s ineligibility for Utah public assistance does not even appear to have been an issue framed by the URESA petition. Accordingly, we believe that the trial court did not err in striking these defenses as immaterial or “collateral” on these grounds.

Notwithstanding the above, we believe that the affirmative defenses asserted herein are not proper subject matter in the context of an URESA proceeding for reimbursement of public assistance paid to a respondent’s children. The primary purpose of URESA is to secure support for dependent children from persons legally responsible for their support. (People ex rel. Oetjen v. Oetjen (1980), 92 Ill. App. 3d 699, 416 N.E.2d 278; People ex rel. Winger v. Young (1979), 78 Ill. App. 3d 512, 397 N.E.2d 253.) The goal to be achieved under URESA is to provide a separate and independent forum to promptly and expeditiously enforce the duty of support without allowing complex collateral issues to become involved. (Thompson v. Kite (1974), 214 Kan. 700, 522 P.2d 327.) Section 24 of URESA provides that if the responding court finds a duty of support it may order the obligor to furnish support or reimbursement therefor. (Ill. Rev. Stat. 1981, ch. 40, par. 1224.) Clearly, the duty of support is the paramount issue in an URESA action.

Under section 2 of URESA, “ ‘duty of support’ ” means a duty of support “whether imposed or imposable by law” and includes the duty to pay “arrearages of support past due and unpaid.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 40, par. 1202.) Section 8 of URESA permits a sister State which has furnished support to an individual obligee to initiate a proceeding under URESA for the purpose of securing reimbursement for support furnished from one having the duty of support. (Ill. Rev. Stat. 1981, ch. 40, par. 1208.) This section permits the State of Utah to stand in the recipient’s place to secure reimbursement, but it does not enlarge the expressed purpose of URESA. Oetjen; Chance v. LaPausky (1979), 43 Md. App. 84, 402 A.2d 1329.

Upon a reading of the entire Act, we conclude that the State of Utah may recover under URESA if it can be shown that the Illinois respondent has an imposed or imposable duty to support his minor children, that it has furnished support to these children, and that the alleged amounts are due and unpaid by him. The respondent’s affirmative defenses herein, however, raise matters which we consider to be collateral to the relevant URESA issues. Accordingly, we conclude that the trial court did not err in striking those portions of his answer as to the affirmative defenses.

The second issue raised is whether Celia as co-petitioner in an URESA proceeding has submitted herself to the jurisdiction of the Illinois court so as to be subject to counterclaims for maintenance, fraud and conversion. Respondent argues that under the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 608) he is entitled to bring a counterclaim for any relief so long as the court has jurisdiction over the subject matter and the parties. He relies on the rule that a court of original jurisdiction such as the circuit court of Cook County may adjudicate all justiciable matters before it. See In re Marriage of Papeck (1981), 95 Ill. App. 3d 624, 420 N.E.2d 528.

The URESA proceeding is a separate, independent action to enforce support obligations, and the remedies provided under the Act are “in addition to and not in substitution for any other remedies.” (Ill. Rev. Stat. 1981, ch. 40, par. 1203; People ex rel. Oetjen v. Oetjen (1980), 92 Ill. App. 3d 699, 416 N.E.2d 278.) Thus, strictly speaking, URESA proceedings are governed by URESA and not by the Code of Civil Procedure. Section 32 of the Illinois URESA states: “Participation in any proceeding under this Act does not confer jurisdiction upon any court over any of the parties thereto in any other proceeding.” (111. Rev. Stat. 1981, ch. 40, par. 1232.) Other jurisdictions interpreting this URESA provision have consistently struck down the theory that a petitioner by initiating a URESA proceeding has submitted herself to the general jurisdiction of the responding State court. (See, e.g., McDowell v. Orsini (1976), 54 Cal. App. 3d 951, 127 Cal. Rptr. 285; Thibadeau v. Thibadeau (1974), 133 Ga. App. 154, 210 S.E.2d 340; Blois v. Blois (Fla. App. 1962), 138 So. 2d 373.) In Ibach v. Ibach (1979), 123 Ariz. 507, 600 P.2d 1370, the Arizona Supreme Court held that section 32 of URESA, as generally interpreted, precludes counterclaims based merely on the theory that plaintiff by initiating the procedure had submitted herself to the jurisdiction of the court of the responding State for other purposes. Accordingly, it was held that when a person initiates an action for support under the Act respondent cannot counterclaim for divorce or raise issues concerning child custody or visitation privileges or other matters commonly determined in domestic relations cases.

We believe that the above principles are in accord with the purposes to be served by URESA. Under the Act, parties should be able to participate freely without exposing themselves to the danger of submitting to the jurisdiction of the responding court or in other independent proceedings. (Thompson v. Kite (1974), 214 Kan. 700, 522 P.2d 327.) Accordingly, we find that the order striking respondent’s counterclaim brought in an URESA action was properly granted under section 32 of the Act. Ill. Rev. Stat. 1981, ch. 40, par. 1232.

Finally, respondent urges that the trial court erred in sua sponte dismissing the URESA action “without prejudice” after a hearing on the merits but before entry of judgment. We agree. Section 2 — 1301(a) of the Code of Civil Procedure provides that:

“(a) The court shall determine the rights of the parties and grant to any party any affirmative relief to which the party may be entitled on the pleadings and proofs. ***” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1301(a).)

Under this provision, the parties are entitled to a judgment on the merits of the case. We do not express or intend any opinion thereon. Accordingly, the order of dismissal without prejudice is vacated and the cause remanded for such further proceedings as may be deemed necessary for an adjudication on the merits not inconsistent with the views expressed herein.

For the reasons stated, the orders of the circuit court striking respondent’s affirmative defenses and counterclaim are affirmed; the order dismissing the case without prejudice is vacated and the cause remanded.

Affirmed in part; dismissal vacated; cause remanded.

WILSON, P.J., and SULLIVAN, J., concur.


author: PRESIDING JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY ALEXANDER, Defendant-Appellant.
    First District (2nd Division)
    No. 81—3108
    Opinion filed September 6, 1983.
    Rehearing denied October 25, 1983.
    Steven Clark and Donna Finch, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Thomas J. Finn, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

Defendant, Jeffrey Alexander, appeals from his convictions of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2); burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1); unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 3); and, armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2). The sentences imposed were concurrent terms of 20 years’ imprisonment on both the armed robbery and armed violence counts; seven years’ imprisonment on the burglary count; and three years’ imprisonment on the unlawful restraint count.

Three grounds for reversal are presented by defendant: (1) that his four convictions are violative of the double jeopardy clause of the fifth amendment to the United States Constitution; (2) that the trial court clearly abused its discretion in determining his sentence; and (3) that his conviction for unlawful restraint should be vacated since it is based on the same act as the armed violence conviction. As the issue of reasonable doubt was not raised, only the pertinent evidence will be summarized.

On the afternoon of October 31, 1979, defendant broke into the Perkins’ residence located in Flossmoor, Illinois. Armed with an IversJohnson .22-caliber revolver, defendant grabbed complainant, Mrs. Leola Perkins, demanded her money and jewelry and, while brandishing the gun, threatened to return and kill her if she reported the incident to the police.

Upon discovering that complainant’s husband and children were to arrive home later that afternoon, defendant compelled complainant to go to various rooms to secure jewelry and money in the total amount of $115. At one point, complainant ran for the front door, but defendant grabbed her around the neck before she could reach the outside. He then held complainant between his arm and body, and proceeded to strike her in the face three or four times while yelling obscenities at her. Dragging her down the hall back to the kitchen, defendant pushed complainant on the floor and told her to stay there as he continued to search through the purse.

For the fifth time, defendant made a demand for more money. Complainant, sensing his desperation, informed defendant that more money was available in her children’s savings account. At gunpoint, complainant was then forced into her 1973 Buick Electra, and was instructed to drive to South Suburban Federal Savings located in Floss-moor Commons. On the way to the bank defendant told complainant that she was to go into the bank alone, withdraw funds from the account and, were she not to bring the money out, he would return and

kill her as well as everyone in her family. Leaving the keys in the car with defendant, complainant entered the bank and immediately advised bank personnel of the situation. As an employee of the bank was telephoning the police, defendant drove off in the Buick Electra.

On the night of November 11, 1979, officers of the Crete police department found defendant sitting behind the wheel of complainant’s car as it was parked along a street in Crete, located in Will County, Illinois. Following a registration check confirming that the vehicle had been stolen, the police officers placed defendant under arrest.

The State’s Attorney of Will County thereupon charged defendant with the felony theft of complainant’s car, in violation of section 16— 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(a)(1)). After a bench trial in June 1980, defendant was found guilty as charged and received a three-year sentence. That conviction was affirmed by both the appellate and supreme courts. People v. Alexander (1981), 99 Ill. App. 3d 810, 425 N.E.2d 1386, aff’d (1982), 93 Ill. 2d 73, 442 N.E.2d 887.

On February 4, 1980, a Cook County grand jury charged defendant with having committed armed robbery, burglary, home invasion, armed violence and unlawful restraint. Following a jury trial, defendant was found guilty of armed robbery, burglary, unlawful restraint and armed violence. From these convictions defendant now appeals.

I

We first consider defendant’s contention that his Cook County convictions are violative of the double jeopardy clause of the fifth amendment to the United States Constitution. Specifically, he maintains that since these crimes, as well as the Will County felony theft, were not joined and tried in Cook County — the place of complainant’s residence and South Suburban Federal Savings — the present action proceeded in violation of the constitutional prohibition against double jeopardy. We find this assertion to be without merit.

Defendant’s reliance on People v. Zegart (1980), 83 Ill. 2d 440, 415 N.E.2d 341, cert. denied (1981), 452 U.S. 948, 69 L. Ed. 2d 961, 101 S. Ct. 3094, is misplaced. The Zegart court held that the double jeopardy clause was violated where the State attempted to charge defendant for reckless homicide, after he was already convicted of crossing over a highway dividing median. The State was thus precluded from using the same factual basis which led to the first conviction as the basis for the second conviction. 83 Ill. 2d 440, 445.

Here, defendant was tried and convicted on completely distinct offenses, the commission of which occurred in two counties on two separate dates. Moreover, the State in no way attempted to prove that defendant committed armed robbery, burglary, armed violence and unlawful restraint in Cook County on October 31, 1979, by showing defendant’s exertion of unauthorized control over the Buick Electra in Will County on November 11, 1979. Defendant cites the related case, People v. Alexander (1981), 99 Ill. App. 3d 810, 425 N.E.2d 1386, aff’d (1982), 93 Ill. 2d 73, 442 N.E.2d 887, for the proposition that the State is prohibited from bringing a second prosecution based on the same factual situation which led to a conviction in a prior trial. We do not question the accuracy of this statement of well-settled decisional law. However, we find no merit to defendant’s assertion that the facts of this case warrant the application of such authority. The factual basis which led to the felony conviction in Will County was not used as the basis for the Cook County convictions; for, the Alexander court concluded that “the State’s theory was directed towards proof of the defendant’s guilt of exertion of unauthorized control over Ms. Perkins’ automobile in Will County, not with the initial theft in Cook County” (emphasis added). People v. Alexander (1982), 93 Ill. 2d 73, 81.

It is well established that there is no requirement of joinder or of a single disposition of multiple crimes which arise from a series of acts. (People v. Griffin (1967), 36 Ill. 2d 430, 433-34, 223 N.E.2d 158; People v. Patete (1980), 91 Ill. App. 3d 655, 657, 419 N.E.2d 921.) Because the offense in Will County was a crime entirely separate from the events which were the bases for the Cook County indictment, we are of the opinion that multiple prosecutions were permissible.

Moreover, proper venue over the charges of armed robbery, burglary, armed violence and unlawful restraint could only lie in Cook County; for, all of the events giving rise to these crimes occurred in Flossmoor, a village located within Cook County. Whereas, the supreme court in People v. Alexander (1982), 93 Ill. 2d 73, 81, indicated that proper venue over the charge of felony theft existed in Will County; for, it was there that defendant was found by the Crete police officers to be exerting unauthorized control over complainant’s car.

We further note that reference to the 1973 Buick Electra as an item stolen from the person and presence of complainant, at gunpoint, was stricken from count II of the Cook County indictment. Thus, as the trial court correctly stated: “The elimination, then, of the 1973 Buick motor vehicle from Count II eliminates the problem of double jeopardy.” See Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260; North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072.

II

Next, defendant contends that the trial court clearly abused its discretion in determining his sentence. We disagree.

Our supreme court has firmly established that the determination of a sentence is a matter of judicial discretion and that, absent an abuse of this discretion, the sentence imposed by the trial court may not be altered upon review. People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.

In addition to providing for the possibility of the offender’s rehabilitation, we recognize that the trial court is also charged with the “delicate responsibility” of fashioning a sentence that will protect the interests of society. (People v. Perruquet (1977), 68 Ill. 2d 149, 155, 368 N.E.2d 882.) Our review of the record in the present case clearly indicates that the lower court was fully aware of defendant’s past record, as well as his personal traits and family situation. However, it is also readily discernible that the court was faced with the task of imposing on defendant a penalty that was commensurate with the degree of seriousness involved in the offenses he committed.

Here, as the trial court aptly commented, complainant was put through “an experience in terror that will affect her sense of security for a long time to come.” For, upon breaking into her home, defendant did not just take cash and jewelry, and then leave. Rather, he proceeded to first put a .22-caliber revolver to complainant’s head and threaten to kill her, as well as her entire family, should she ever cooperate with the police in his apprehension; second, he repeatedly dragged her throughout her own home in search of more and more money and jewelry; third, after grabbing complainant by the neck to foil her escape attempt, he angrily beat her in the face three or four times while screaming obscenities at her; fourth, he then threw her on the floor and continued to desperately demand, as well as search for, more money; fifth, he forced complainant at gunpoint to drive him in her car to a bank in order that she could "withdraw money from her children’s savings account to further satisfy his financial desires; and sixth, while en route to the bank, he once again threatened to return and kill complainant, as well as her entire family, were she not to comply with his instructions.

At the hearing in aggravation and mitigation, there was a stipulation that if Barbara Broderick were called to the witness stand, she would testify that on October 24, 1979, upon returning to her home in Flossmoor, she was confronted by a man closely resembling defendant. This man proceeded to grab and drag her into a bedroom; he made a demand for money and jewelry; he made her lay on the floor while he bound her; and, he then robbed her of jewelry and over $100 in cash. Defendant asserts that his counsel withdrew this stipulation; however, our review of the record indicates that the trial court did not permit the withdrawal, and referred to it only for the purpose of illustrating defendant’s modus operandi on October 31, 1979.

Defendant asserts that Ms. Broderick’s stipulated testimony was incompetent information erroneously considered by the trial court as an aggravating factor. We find this argument to be without substance since our supreme court has recently held that evidence of other offenses not resulting in a conviction can be considered by a trial judge when determining a particular defendant’s sentence; for, the court is not strictly limited to consideration of only that information which would be admissible under the adversary circumstances of a trial. People v. La Pointe (1981), 88 Ill. 2d 482, 499, 431 N.E.2d 344.

In addition to the foregoing, the trial court indicated that a presentence report had been received. Recognizing that the trial court’s determination of a sentence is entitled to great deference and weight on appeal, we are of the opinion that, based upon a review of the record in the case at bar and irrespective of the alleged facts in the Broderick incident, defendant’s 20-year sentence should not be reduced.

Ill

Defendant maintains that his conviction for unlawful restraint should be vacated since it is based on the same act as the armed violence conviction. As the State concedes, however, it is defendant’s armed violence conviction that must be vacated in accordance with People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512. We do not believe that the vacation of this single conviction necessitates resentencing defendant on the remaining charges. The sentence of 20 years imposed on the armed robbery count was within the limits permitted by statute (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(3)), and was justified based upon the nature and gravity of defendant’s acts. Likewise, the other concurrent sentences were justified.

- For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part and vacated in part in accordance with the views expressed herein.

Affirmed in part and vacated in part.

STAMOS and PERLIN, JJ., concur.


author: JUSTICE JOHNSON

text:
    MARY N. STONE et al., Plaintiffs-Appellants, v. LA SALLE NATIONAL BANK, Trustee, et al., Defendants-Appellees.
    First District (4th Division)
    No. 82—437
    Opinion filed September 15, 1983.
    Joel S. Ostrow, of Chicago, for appellants.
    Leonard A. Nelson, of Schoenberg, Fisher & Newman, of Chicago, for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiffs, who are tenant-owners of cooperative apartment buildings located at 860-880 North Lake Shore Drive in Chicago, Illinois, appeal a trial court decision in favor of defendants who are managing trustees of the cooperative. They raise the following issues for review: (1) whether allegations that the managing trustees had no authority to adopt a new lease with a new assessment schedule stated a cause of action; (2) whether lack of personal notice to the tenant-owners of a new lease and increased assessments, and of a special assessment, barred imposition of such lease and assessments as a matter of law; and (3) whether allegations that the special assessment had been subject to collection without proper notice or authority stated a cause of action.

We affirm.

On November 3, 1981, plaintiffs filed an amended complaint as a class action, the class being holders of certificates of beneficial interest in the 860 Lake Shore Drive trust. Defendant La Salle National Bank is trustee of the trust in which the trust assets are held, and the individual defendants are managing trustees.

In count I of their complaint, plaintiffs alleged that the trust was created by an agreement dated April 1, 1949. Article 2.01 of the agreement provides for the issuance of certificates of beneficial interest which incorporate by reference all of the terms and provisions of the trust agreement. The certificates provide for issuance of a standard form lease. Paragraph 3 of the lease provides for payment of an annual assessment for maintenance and improvement of the buildings. The amount of the assessment is dependent on the size of the apartment as specified in the lease.

In April 1980, the managing trustees changed the lease so as to authorize increased assessments after a certain date and the imposition of special assessments at any time. Plaintiffs allege that this was a change within the provisions of the trust agreement.

On April 28, 1981, the managing trustees passed a resolution imposing substantial increases in assessments, effective July 1, 1981. On August 1, 1981, the trustees caused letters to be left in hallways informing tenants that a new lease had been adopted in April 1980. Tenants were advised to surrender the old lease and execute a new one. The new lease allowed trustees to impose changes in assessments at any time and to impose special assessments. The letter served as notice to the tenants and threatened legal action against tenants who failed to pay the increased assessment.

Plaintiffs argue that since the managing trustees did not submit the amendment to the lease to certificate holders as required by the trust agreement, the change in the lease and the imposition of an increased assessment were illegal and improper.

Plaintiffs asked for a temporary restraining order restraining defendants from collection of assessment, from filing of forcible entry and detainer actions, from other legal action against tenants to enforce the assessments, and from enacting amendments without approval by certificate holders. Plaintiffs asked for a declaratory judgment and for the return of assessments improperly collected.

In count II, plaintiffs alleged that the lease provided for service of notices by the lessor personally or by mail. Plaintiffs claim that defendants failed to serve notice of the increased assessment in accordance with the lease.

In count III, plaintiffs alleged that the August 1, 1981, letter threatened a special assessment. This was illegal because the assessment was selectively imposed on tenants who resisted payment of the increased assessment and was not proportioned to the schedule of assessment attached to the standard form lease.

In count IV, plaintiffs alleged that they were notified of a new special assessment for real estate taxes on October 9, 1981. Plaintiffs argued that since an amendment authorizing a special assessment was not submitted to certificate owners for a vote as required by the trust agreement, imposition of the assessment was illegal.

On November 10, 1981, defendants answered plaintiffs’ complaint and affirmatively pleaded the following. On April 10, 1980, the managing trustees decided to adopt a new lease. Minutes of the meeting were posted on bulletin boards in the buildings. On April 16, 1980, the new lease was formally adopted. Minutes of the meeting and the new lease were posted. In June 1981, a newsletter was distributed to tenants reminding them of the new lease.

On November 12, 1981, the managing trustees counter complained against Walter Baehrend, alleging that from October 1, 1980, to June 16, 1981, he was a managing trustee. They asked that if any judgment is entered against them it should be apportioned among them and Baehrend. Baehrend answered the countercomplaint by alleging that he objected to actions taken by the trustees during his term and resigned because of disagreement with the other managing trustees.

On February 8, 1982, the trial court granted defendants’ motions for summary judgment and judgment on the pleadings. Plaintiffs filed a notice of appeal of the February 8, 1982, order on February 26, 1982. On March 10, 1982, the countercomplaint was dismissed on defendants’ motion.

On appeal, plaintiffs make lengthy arguments regarding the trust agreement between the parties. They contend that defendants acted contrary to the trust agreement and that such was alleged in their complaint. They argue that by alleging the breach of the trust agreement, the complaint clearly stated a cause of action. Plaintiffs conclude that the trial court should not have granted defendants’ motion for summary judgment.

A number of questions are raised regarding the issuance of the new lease agreement. However, the dispute centers around the increased assessment imposed upon plaintiffs and the other cooperative owners; specifically, whether the notice requirement of the trust agreement was followed by the managing trustees prior to changing the lease and increasing the assessment charges to be paid by cooperative owners.

The certificates of beneficial interest issued under the trust agreement provide in part:

“So long as said lease is in effect, the apartment covered by said lease shall be the apartment originally designated as appertaining to this Certificate at the time of the original issuance hereof unless changed by the mutual consent of the holder hereof and the Managing Trustees. All of the leases to Certificate Holders shall be in substantially the same form except as to varying amounts of rent to be provided for therein. The terms and provisions of such leases may be changed from time to time by the Managing, Trustees.” (Emphasis added.)

The parties agreed during oral arguments that the managing trustees have the authority to increase the assessment charges imposed on cooperative owners. Plaintiffs’ objection is directed to the manner in which it was implemented as well as the question of whether the increase was necessary.

Article 7, section 7.01 of the trust agreement provides:

“7.01. This Trust Agreement may be amended, altered or modified by the resolution of the Managing Trustees. If, in the opinion of the Managing Trustees (which shall be conclusive), any such amendment, alteration or modification materially or substantially affect the rights of the Certificate Holders, the Managing Trustees shall notify the Certificate Holders of the nature of such amendment, alteration or modification not less than twenty days prior to the date on which it is proposed that such amendment, alteration or modification is to become effective and such amendment, alteration or modification shall not become effective unless prior to such date Certificate Holders holding not less than a majority of the total face amount of all the then outstanding Trust Certificates shall vote for or approve such amendment, alteration or modification.”

If the increased assessment and issuance of new leases is construed as a material alteration or amendment of the trust agreement, then the managing trustees were required to notify the cooperative owners as provided by section 7.01 of the trust agreement.

However, article 4, section 4.01 of the trust agreement provides in part:

“All leases to Certificate Holders demising apartments in the housing project which is the subject matter of the Trust shall be in substantially the same form except as to varying amounts of rent to be provided for therein. The terms and provisions of such leases may be changed from time to time by the Managing Trustees.” (Emphasis supplied.)

This language does not indicate that the managing trustees need the approval of a majority of the cooperative owners before changing the provisions of the lease. It does not appear that the material alteration or amendment of the trust agreement referred to in article 7, section 7.01, was intended to include changes in the lease agreement. Nowhere in the trust agreement is it suggested that the lease agreement may only be changed by action of the cooperative owners. Therefore, to determine whether the managing trustees acted improperly, we must determine the criteria for issuing a new lease agreement.

The certificates of beneficial interest issued under the trust agreement provide in part:

“The ownership of this Certificate shall entitle the holder hereof to a lease of........................in the housing project which is the subject of the trust, subject to the payment of the rent provided for in said lease and the performance and observance of all terms, provisions and conditions provided in said lease to be kept, performed or observed by the lessee thereunder, and subject to the provisions set forth below as to the effect of termination of said lease. So long as said lease is in effect, the apartment covered by said lease shall be the apartment originally designated as appertaining to this Certificate at the time of the original issuance hereof unless changed by mutual consent of the holder hereof and the Managing Trustees. All of the leases to Certificate Holders shall be in substantially the same form except as to varying amounts of rent to be provided for therein. The terms and provisions of such leases may be changed from time to time by the Managing Trustees.”

Additionally, paragraph 3(a) of the original lease agreement provides in part:

“Lessor shall notify Lessee in writing of any such increase or decrease not later than March 1st of any year, and Lessee shall thereupon pay the assessment specified in such notice monthly in advance, commencing on the first day of May for the succeeding twelve (12) months and for each succeeding twelve (12) months, unless and until a further notice of increase or decrease in the assessment is given by Lessor to Lessee, as herein provided.”

These two provisions give the general criteria to be used when issuing a new lease, amending the existing lease, and increasing or decreasing the assessment charges. Neither of these instruments spell out specifically how notice is to be given. Thus, they are not determinative and can only be used as guidelines in determining whether the managing trustees acted improperly in carrying out their duties.

On or about April 28, 1981, the managing trustees passed a resolution imposing an assessment increase, effective July 1, 1981. The cooperative owners were not notified of the increase until on or about August 1,1981. Section 7.04 of the trust agreement states in part:

“Any notice to be given to the Certificate Holders shall be duly given if mailed prepaid to each Certificate Holder, addressed to his last post office address as shown on the books of the Trustee. Every notice so given shall be effective whether or not received and the date of mailing shall be the date such notice is deemed given for all purposes.”

Additionally, paragraph 27 of the general provisions of the original lease agreement states:

“27. Any notice which Lessor may give to Lessee hereunder shall be sufficient if (a) personally served on Lessee or any member of his family above the age of fifteen (15) years or if (b) mailed by Lessor to Lessee by United States certified or registered mail, postage prepaid, addressed to Lessee at such address . as Lessee shall theretofore have furnished to Lessor in writing, or if no such address shall have been furnished Lessor then at the premises hereby demised, and the giving or serving of such notice or demand in either of the ways above specified shall constitute a good and sufficient notice or demand for any and all purposes, whether under the terms and provisions hereof or otherwise.”

The managing trustees gave the cooperative owners notice of the new lease and increased assessment in one or more of the following ways: (1) on May 1, 1980, minutes of the trustees’ meeting of April 16, 1980, was posted on bulletin boards in the buildings’ mail room; the minutes advised the cooperative owners that a new lease had been adopted; (2) on or about April 30, 1981, the building manager disseminated notice of an impending assessment increase. It appears that the dissemination was accomplished by leaving notices in various areas of the buildings; (3) from the end of June 1981, each cooperative owner received a statement of his assessment charge reflecting the increase; (4) a newsletter published by cooperative owners at the end of June 1981 announced the assessment increase; (5) a letter from the managing trustees to the cooperative owners advising them of the new lease and assessment increase. The letter was left outside the doors of all apartments in the buildings on or about August 1,1981.

An examination of the notice provisions of the trust agreement and lease shows that the managing trustees did not follow the provisions set out therein. They did not notify the cooperative owners of the assessment increase by March 1, 1981, as required by paragraph 3(a) of the lease agreement. Neither did they mail the notices to the cooperative owners as suggested by section 7.04 of the trust agreement. It is clear that the managing trustees did not use the best method available to notify the cooperative owners. However, that single failure in judgment is insufficient to nullify the managing trustees’ right to adopt a new lease and increase assessment charges.

There was no allegation of fraud or misrepresentation on the part of the managing trustees. Neither is there any requirement that there be a vote by the cooperative owners before a new lease or increased assessment charges could be adopted. While it is true that a better method of notice could have been used, plaintiffs have not denied that the cooperative owners were in fact aware of the impending charges.

The August 1, 1981, letter from the managing trustees to the cooperative owners in effect cured whatever notice defect existed. The cooperative owners were notified that they would not be required to pay the assessment increase until October 1, 1981 (60 days from the date of the notice). At the time of the litigation, all but two or three tenant owners had paid the increased assessment. This indicates that notice was received in some manner. Plaintiffs have shown no harm suffered as a result of the manner in which notice was given.

We reject plaintiffs’ argument that the fact that they suffered no material loss or prejudice should have no bearing on this court’s decision.

We will not make a determination on the basis of form rather than substance. (Reese v. Melahn (1973), 53 Ill. 2d 508, 513, 292 N.E.2d 375, 379.) Even if we accepted plaintiffs’ contentions and reversed the trial court, plaintiffs would find themselves in the same position in which they now stand. We will adhere to the equitable maxim that the law does not require the doing of a useless act. Haas v. Cravatta (1979), 71 Ill. App. 3d 325, 329, 389 N.E.2d 226, 229.

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

Affirmed.

ROMITI, P.J., and LINN, J., concur.


author: JUSTICE LINN

text:
      In re ESTATE OF PETER BROUSKOS, Deceased (Samuel J. Betar, Adm’r of the Estate of Peter Brouskos, Appellant, v. The People of the State of Illinois, Appellee).
    First District (4th Division)
    No. 82—2386
    Opinion filed September 15, 1983.
    Theodore Rodes, Jr., of Porikos & Rodes, and Robert E. Wiss, both of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Edward M. Kay, Assistant Attorney General, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

This is an appeal brought by the administrator of the estate of Peter Brouskos from a decision of the circuit court of Cook County that a residuary bequest to a charity located in Greece was not exempt from inheritance tax under section 28 of the Inheritance and Transfer Tax Law (Ill. Rev. Stat. 1979, ch. 120, par. 401). The administrator argues in this appeal that (1) the trial court’s findings that the charitable nature of the residuary beneficiary and the existence of reciprocity between Illinois and Greece had not been established were against the manifest weight of the evidence and (2) the inheritance tax exemption provided in section 28 is applicable to bequests to charitable organizations in foreign countries if reciprocity between that country and Illinois exists. The appellee, the State of Illinois, argues in addition that the circuit court lacked jurisdiction to hear the administrator’s petition for reassessment of inheritance tax.

The State does not dispute the charitable nature of the beneficiary or the existence of reciprocal inheritance tax exemptions from the government of Greece. Although these were the issues on which the trial court’s order was based, the State apparently abandoned its argument in this regard on appeal to rely instead on this court’s intervening decision in In re Estate of Cohen (1983), 112 Ill. App. 3d 265, 445 N.E.2d 391.

We affirm the decision of the trial court.

Facts

Peter Brouskos, a United States citizen, died testate in Greece in 1976. He owned real property in Illinois. The office of the Illinois Public Administrator was appointed to take responsibility for the assets of the estate, effect burial of the decedent, and administer the estate. Brouskos’ will was admitted to probate by the circuit court of Cook County on February 22, 1977. The administrator of the estate filed his inheritance tax return on April 16, 1979. The return claimed charitable exemptions under section 28 of the Inheritance and Transfer Tax Law (Ill. Rev. Stat. 1979, ch. 120, par. 401) for bequests to two beneficiaries: Saint Varvara Church, Tripolis, Arcadia, Greece, and the Dekazeion Home for the Aged, Tripolis, Arcadia, Greece.

The Attorney General filed objections to the inheritance tax return on behalf of the State of Illinois; a hearing on the matter was held on August 6, 1979. On December 31, 1979, the circuit court entered its order assessing inheritance tax against the bequest to the Dekazeion Home. On May 19, 1981, the Consul General of Greece wrote the Inheritance Tax Division of the Attorney General of Illinois that the Dekazeion Home is a private charitable institution receiving its financial support from private benefactors and the Greek Orthodox Church, not from the government of Greece.

On February 26, 1982, the administrator filed a petition under section 10 of the Inheritance and Transfer Tax Law (Ill. Rev. Stat. 1979, ch. 120, par. 384) seeking reassessment of the inheritance tax, specifically requesting that no tax be assessed against the bequest to the Dekazeion Home. The State’s response to the petition alleged that the assessment was proper because the Dekazeion Home is “[n]ot a private charitable organization, but an agency of the government ***. Further, the State denies that [the estate] is entitled to a reciprocal exemption in a situation such as this.” The State’s response further stated that “the Petition contains no new or additional facts under which a Petition for Reassessment could be entertained” under section 10. Memoranda in support of and opposition to the petition for reassessment subsequently were filed.

On September 1, 1982, the circuit court denied the administrator’s petition for reassessment. The order recited the court’s findings that the charitable status of the Dekazeion Home had not been established and that the “question of reciprocity between the foreign government and the State of Illinois does not exist.” The administrator appeals from this order.

Opinion

A threshold issue in this appeal is the State’s argument that the circuit court did not have jurisdiction to hear the administrator’s petition for reassessment because section 10 of the Inheritance and Transfer Tax Law, under which the petition was filed, is not applicable to the facts of the case at bar. Section 10 provides:

“Sec. 384. Refunding excess of tax by State Treasurer.
When it appears that errors have inadvertently occurred in the inheritance tax proceedings resulting in an erroneous amount of tax paid to the State Treasurer, such errors may be corrected and the order of assessment modified accordingly in a proper proceeding, and the executor, administrator or trustee, person or persons, corporation or corporations who have paid such tax in error, shall be entitled to a refund from the State Treasurer of the amount of such tax erroneously paid: Provided, that this section shall not apply to any errors in the valuations of the property of the decedent as appraised, or in the rules of law applied in determining the taxability of the several successions: Provided, that all applications for the repayment of any tax under this section shall be made within two years from the date of such payment.” (Ill. Rev. Stat. 1979, ch. 120, par. 384.)

The State disagrees with the administrator’s claim that an inadvertent error, which would invoke the application of this statutory provision, had occurred.

The alleged error occurred as a result of the illness and death of the attorney for the Public Administrator who had been responsible for the Brouskos estate’s inheritance tax return. This attorney, together with the attorney for the Consul General of Greece at Chicago, had worked on interpretation of the translated documents from Greece regarding this estate. At the time consent to the order assessing estate tax was requested of the Public Administrator, this attorney had just died; the Greek Consul’s attorney was hospitalized with a terminal illness. Thus, the administrator explains, another attorney for the Public Administrator, “without fully understanding the context in which words were used, misinterpreted the documentation and signed the consent to the Order Assessing Tax, thereby committing an inadvertent error.”

Although the State concedes that section 10 authorizes the circuit court to correct errors in the inheritance tax proceedings, it argues that the section is inapplicable in the case at bar because it “is expressly made inapplicable to any errors in the *** rules of law applied in determining the taxability.” The State cites In re Estate of Hamill (1949), 404 Ill. 217, 88 N.E.2d 440, in support of its argument that if the trial judge committed any errors in the rules of law he applied in determining that the transfer to the Dekazeion Home was taxable, such errors could not be corrected under this section. We disagree.

The Hamill case is factually distinguishable from the case at bar; it holds that later appellate decisions that alter the interpretation of the tax law do not permit reassessment of the tax assessed through an earlier differing interpretation. In the case at bar, no error in applying the appropriate rules of law occurred; the inadvertent error involved a misinterpretation of facts by the administrator. In our view, such a factual misunderstanding is the kind of inadvertent error contemplated by section 10. Accordingly, we hold that the circuit court had jurisdiction to hear the administrator’s petition for reassessment, and this court has jurisdiction to hear the appeal therefrom.

The first argument advanced by the administrator in this appeal is that the trial court’s findings that the charitable nature of the Dekazeion Home and the existence of reciprocity between Illinois and Greece had not been established were contrary to the manifest weight of the evidence. The administrator points to evidence in the record that the Dekazeion Home is a charitable organization and that under the laws of Greece inheritance tax exemptions that are reciprocal with other jurisdictions, including Illinois, do exist. Although the State disputed this argument by the administrator in the trial court, it does not pursue that position in this appeal. Accordingly, we must assume the parties to this appeal agree regarding the existence of both a charitable beneficiary and a reciprocal tax exemption.

The only remaining contested issue is whether the inheritance tax exemption provided in section 28 of the Inheritance and Transfer Tax Law is applicable to bequests to charitable organizations in foreign countries. Section 28 provides, in pertinent part:

“The exemption herein granted shall extend to persons, organizations, associations and corporations organized under the law of other states, and resident therein, provided the law of the other state grants to persons, organizations, associations and corporations organized under the law of Illinois, and resident therein, a like and equal exemption.” Ill. Rev. Stat. 1979, ch. 120, par. 401.

The administrator argues that the inheritance tax imposes a special burden and therefore should be construed strictly against the State and in favor of the taxpayer. (In re Estate of Marcley (1976), 38 Ill. App. 3d 316, 347 N.E.2d 13.) The construction most favorable to the taxpayer, of course, would extend the exemption to charitable beneficiaries in foreign countries. The administrator points out the logical inconsistency in the State’s objecting to the exemption for the gift to the Dekazeion Home without also objecting to an exemption for the gift to the church in the same Greek town. The administrator further points out that in other probate cases tax exemptions for bequests to charities in foreign countries have been allowed without dispute.

We agree that the State’s position with respect to these two charitable bequests is inconsistent; the administrator’s plea for evenhanded tax treatment of charitable bequests is well founded. In spite of our sympathy with these arguments, however, we find that we are bound by this court’s decision construing section 28 in In re Estate of Cohen (1983), 112 Ill. App. 3d 265, 268-69, 445 N.E.2d 391, 394: “In our opinion, the plain meaning of the Illinois statute does not include an exemption for bequests to foreign countries.” As the administrator correctly points out, Cohen is distinguishable from the case at bar in that the gift in Cohen was made to the State of Israel and not, as here, to a charitable organization within the foreign country. However, Cohen’s holding is not limited to bequests to foreign governments. In construing the language of section 28, Cohen held that “[w]e are satisfied that by using the words ‘other states,’ the legislature intended only the ‘other states’ of the United States.” (112 Ill. App. 3d 265, 268, 445 N.E.2d 391, 394.) Thus, the exemption is extended in section 28 only to charitable beneficiaries in other States of the United States, and beneficiaries in foreign countries, be they private charities or the foreign government itself, are not entitled to exemption from Illinois inheritance tax.

As Cohen observes, no other Illinois opinion construing this language exists. In deciding the issue of whether charitable bequests to foreign countries were tax exempt under a similar Wisconsin statute, the Supreme Court of Wisconsin held that use of the words “other states” precluded an interpretation including foreign nations. (In re Estate of Wieboldt (1958), 5 Wis. 2d 363, 92 N.W.2d 849.) In construing an inheritance tax law, the United States Supreme Court held “that the words ‘either by will or by the intestate laws of any State or Territory’ *** would apply only to *** any State or Territory of the United States.” Eidman v. Martinez (1902), 184 U.S. 578, 590, 46 L. Ed. 2d 697, 704, 22 S. Ct. 515, 520.

Tax exemption statutes should be strictly construed and not extended by judicial interpretation. (In re Estate of Schureman (1956), 8 Ill. 2d 125, 133 N.E.2d 7.) Furthermore, an exemption statute must be strictly construed in favor of taxation. (Hall v. Property Tax Appeal Board (1981), 98 Ill. App. 3d 824, 424 N.E.2d 375.) When a word having so potentially broad a definition as “state” is used in a statute it must be defined in the context of the statute, as was done in the cases cited above. We find it particularly significant that in section 1 of the Inheritance and Transfer Tax Law the term “foreign country” is expressly defined, a clear indication that the term was not intended to be synonymous with the word “state” in the context of the Law. Because the exemption of section 28 was not expressly extended to foreign countries, and the language of the section has been construed by this court to refer only to other States of the United States, we are compelled to hold that the bequest to the Dekazeion Home was not entitled to exemption from the Illinois inheritance tax. The decision of the circuit court is accordingly affirmed.

Affirmed.

JOHNSON and JIGANTI, JJ., concur.


text:
    PEOPLES GAS LIGHT & COKE COMPANY, Plaintiff-Appellee, v. GEORGE F. BARRETT, Deceased, by David Bortman, his Special Adm’r, et al., Defendants-Appellants—(Alice B. Fauls et al., Defendants).
    First District (4th Division)
    No. 82—2466
    Opinion filed September 15, 1983.
    Leslie Robbins, of Boraz & Robbins, Ltd., of Chicago, for appellants.

      Paul Heller, of Wexler & Heller, Ltd., of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

The estate of George Barrett and the deceased’s sister, Avis Barrett (defendants), appeal from a summary judgment entered against them on plaintiff’s third amended complaint. The judgment was for $17,759.80 owed for gas service provided by plaintiff between September 1977 and August 1978 to a 73-unit apartment building located at Lake and Waller Streets in Chicago. During that time, defendants were several of the beneficiaries of a land trust holding title to the property. On appeal, defendants raise several issues concerning whether genuine issues of material fact existed precluding summary judgment and whether computer printout records adequately established the amount owed.

The record shows that the Lake-Waller building was one of several properties placed in a trust in 1969 with the members of the Barrett family as the trust beneficiaries. The 73-unit building was located on the west side of Chicago, and over the years this building deteriorated into a slum.

Plaintiff filed suit and in the third amended complaint named George F. Barrett by his special administrator, David Bortman (George F. Barrett died during this litigation and a special administrator was appointed upon plaintiff’s request), Alice B. Fauls, Avis Barrett, Thomas Barrett and Northern Illinois Industrial Properties, Inc. (NIIP), as defendants. NIIP was a real estate management firm that took over supervision of the Lake-Waller building in February 1978. The record discloses an attempt by most of the trust beneficiaries to assign their interests to NIIP, although the record also suggests that Thomas Barrett did not do so. The trustee bank eventually accepted the assignments in July 1979.

The third amended complaint had four counts. The fourth count was dismissed and the matter proceeded. Count I named George Barrett, Avis Barrett and Thomas Barrett as the owners of the Lake-Waller property and sought $12,060.64 in payments from them for gas provided between September 1977 and February 6, 1978. Count III sought payments from these defendants for gas service between February 6, 1978, and August 29, 1978, when service was terminated. The amount claimed was $5,699.16. Count II sought relief against NIIP based on the same claim as set forth in count III.

On June 9, 1981, the trial court entered a summary judgment as to liability against the estate of George Barrett and Avis Barrett on count I finding they were the owners of the Lake-Waller property during the period in question. On August 4, 1981, the trial court entered summary judgment against the George Barrett estate and Avis Barrett establishing their liability for gas service for the time designated in count III. Summary judgment was entered in favor of NIIP on counts II and III. Finally, on October 13, 1981, damages of $17,759.80 were assessed against the estate of George Barrett and Avis Barrett.

We have originally considered this appeal (No. 81 — 2763). However, on September 9, 1982, we entered a Rule 23 order (87 Ill. 2d R. 23) dismissing the appeal because the record then did not show that the appeal was from a final judgment as to all the parties or that the trial court found that there was no just reason to delay enforcement or appeal of its judgment. (87 Ill. 2d R. 304(a).) On further proceedings, these matters were remedied when plaintiff’s action against Alice Barrett Fauls and Thomas Barrett was voluntarily dismissed by plaintiff. Defendants and plaintiff have now resubmitted the briefs and record previously filed to stand as the briefs and record in the present case.

Defendants primarily argue that summary judgment was improperly entered because there were disputed questions of material fact. Defendants’ first contention concerns two segments of events. First, defendants note that the gas service was installed in the building in 1976. About that time, George Barrett, a California resident, had taken over supervision of the building and several other properties owned by the Barrett family from Alice Barrett Fauls. A real estate management agent, Egbert Shirley, had day-to-day supervisory duties beginning in 1972 until George Barrett terminated him in January 1978 at the urging of NIIP. There was never a written management agreement between defendants and Shirley. Defendants now contend that a material question of fact existed whether George Barrett ever gave Shirley permission to install the gas service, thereby calling into question their liability under count I of the complaint. Second, defendants claim that under count III there was no liability against them. Defendants maintain that a material question of fact existed whether for that period of time specified in that count ownership had been transferred to NIIP or whether NIIP was merely defendants’ agent.

Shirley’s actions regarding the gas service are outlined in his deposition presented on the motion for summary judgment. He described the Lake-Waller property as having two stoker-fed coal, steam-heating systems. However, the use of coal created pollution violations, and it appeared that Shirley had to explain the violations in court. In addition, in the mid-1970’s the cost of coal had drastically risen and the sole Chicago coal supplier proved unreliable. Shirley indicated that he spoke to either George Barrett or Mrs. Fauls, or both, about the matter and then had the gas service installed. A letter from Shirley to George Barrett, dated November 8, 1976, explained the pollution problems and the cost of coal. This letter purportedly was written shortly after the gas service was requested as indicated by an affidavit of plaintiff’s account representative. Apparently, two gas units were placed in the Lake-Waller building.

In George Barrett’s deposition, this defendant stated that his gas service was installed without his consent, and he first learned of the matter in the latter part of 1977. Barrett explained that this was one reason why Shirley was discharged. He also stated that Shirley only had authority to collect rents and make ordinary expenditures. Barrett denied being advised by Shirley of the gas payments or gas bills.

Plaintiff takes the position, as the trial court did, that Shirley, as defendants’ agent, could take action concerning installation of gas heat that would bind them. However, defendants assert that material issues of fact exist concerning Shirley’s authority to bind them as principals.

We must reject defendants’ contention. Basically, the relationship of principal and agent imposes a fiduciary obligation upon the agent. (County of Cook v. Barrett (1975), 36 Ill. App. 3d 623, 628, 344 N.E.2d 540, 545.) A principal may be bound by his agent’s actions: (1) where the principal actually authorizes his agent to act; (2) where the agent has apparent authority; and (3) where the agent exercises an inherent power stemming from the agency relationships. Roscoe Co. v. Lewis University, College of Law (1979), 79 Ill. App. 3d 1098, 1101, 398 N.E.2d 1083, 1086.

In the present case, we believe there existed an inherent authority for Shirley to obtain gas service for the Lake-Waller building and, consequently, defendants cannot complain that the result of his actions are binding on them. First, we note that the record contains financial summaries for the building operations from 1974 to 1976. In those years heating costs for the building were about $20,400, $26,000, and $19,300, respectively. These sums were substantial and were generated, in most part, when the fuel source was coal.. In addition, there was undisputed evidence that coal produced pollution violations, was expensive, and could be provided only by an unreliable source. It seems that the bills for gas were comparable or somewhat less in comparison to coal and the natural gas was readily available. Obviously, in an attempt to maintain the building and fulfill his obligations to defendants, Shirley, as defendants’ agent, discussed the question of gas conversion with them and then proceeded to obtain gas heat in order to benefit defendants and the other trust beneficiaries by continuing the building operations. We must reject defendants’ assertions under the circumstances that a genuine issue of material fact existed as to Shirley’s authority to procure the gas service.

Defendants contend that even if Shirley acted properly, they were not liable for gas service after February 1, 1978, as generally set forth in count III of the third amended complaint. In this regard, the record shows that NIIP entered the picture shortly before this time when George Barrett attempted to secure assignments of all the beneficial interests in the land trust in order to transfer title to NIIP. However, the trustee would not accept the assignments because they lacked a corporate resolution by the assignee, there remained unpaid real estate taxes, and there is some suggestion that one of the beneficiaries refused to convey his 20% beneficial interest.

The record also shows that throughout 1978 difficulties with the building were multiplying, apparently culminating in a decision by the city of Chicago to seek a court order to vacate the remaining building tenants and seek demolition of the structure. However, NIIP eventually obtained the building in 1979 when the trustee accepted the assignments.

Defendants now argue that the trial court was presented with conflicting evidence concerning a material fact whether NIIP had an ownership interest in the property and liability for gas payments during the period set forth in count III, thereby precluding entry of summary judgment against defendants.

Here, the record shows that in November 1977 counsel for NIIP wrote to George Barrett indicating that a sale of the equity in the Lake-Waller building could be effected for $3,000 subject to all unpaid taxes and building code violations. On January 4, 1978, counsel wrote to Barrett advising him that he had prepared the assignments for execution. Counsel also suggested that Shirley be discharged and NIIP’s agent be appointed. One week later, George Barrett terminated Shirley. In March 1978, NIIP’s counsel wrote to George Barrett indicating he would hold the assignments subject to Barrett’s direction. The assignments were dated February 1, 1978. Apparently two other properties in the land trust were to be reassigned to the trust beneficiaries, but NIIP was to get the Lake-Waller building.

On April 10, 1978, NIIP’s agent wrote George Barrett explaining the problems with the Lake-Waller building and how it was inhabited by many undesirable tenants. Several monthly financial statements for that property and the two other properties in the trust accompanied this correspondence. On May 26, 1978, NIIP’s counsel wrote George Barrett stating that the Lake-Waller building was unmanageable and suggesting that it be boarded up. Counsel also indicated that NIIP did not have a full beneficial interest in the property and the assignments were being returned to Barrett because the trustee would not accept them. The trust agreement provided that the trustee would not be bound by an assignment of the beneficial interest until the trustee accepted the assignment. NIIP’s agent, however, would continue to operate the other trust properties for George Barrett. Several days later, George Barrett returned the assignments to NIIP’s counsel and emphasized his belief that their agreement was still in effect.

We must disagree with defendants that a genuine issue of material fact existed as to whether NIIP had acquired ownership of the Lake-Waller building on February 1, 1978, when several of the beneficiaries executed assignments of their beneficial interests in the trust to NIIP. The trust agreement reposed the right to sell the property in the beneficiaries. We recognize that real estate trust beneficiaries may contract to sell the property. (Bank of Barrington, Trust No. 11—1317 v. Oldenburg (1981), 101 Ill. App. 3d 283, 287, 427 N.E.2d 1312, 1315; see also Page v. Fosco (1980), 90 Ill. App. 3d 1113, 414 N.E.2d 89; and Lampinen v. Hicks (1979), 73 Ill. App. 3d 376, 391 N.E.2d 1105.) However, examination of the record discloses that NIIP had not obtained ownership control of the trust properties. All the beneficiaries apparently had not joined in the assignments, and the agreement was that NIIP would reconvey two other properties in the trust back to the Barretts. This was not done during the period designated in count III. Further, the correspondence between NIIP’s counsel and agent to George Barrett, which we have outlined above, clearly negates any valid basis that NIIP owned the property. Rather, the matters presented to the trial court show that NIIP acted as defendants’ agent. We therefore conclude that no issue of material fact existed as to defendants’ liability for count III.

Finally, defendants maintain that summary judgment was improper on the issue of damages. They maintain that plaintiff’s computer printout records detailing the amount owed were improperly considered because there was an inadequate foundation as to their accuracy. Defendants argue that computer printouts are admissible if it is shown that the electronic computing equipment used is recognized as standard, that the entries were made in the regular course of business at or reasonably near the time of the happening of the event recorded, and that the evidence satisfies the court that the sources of information, method and time of preparation are such to indicate their trustworthiness and justify their admission.

In the present case, accuracy of the amount owed to plaintiff was based on the affidavit and interrogatories of Roy Giersch, plaintiff’s special account representative. Defendants fault Giersch’s conclusion pertaining to the accuracy of the printout data because he did not specify the nature of the control and supervision he exercised over defendants’ account, and he did not show when the data was recorded or exactly what was meant by the records being prepared in the ordinary course of business. Finally, defendants claim that Giersch failed to show he had any knowledge of the persons who actually performed the meter readings, he made no statements regarding the nature or efficiency of the computing equipment, and he did not know who transferred the meter reading data into the computer or when it was done.

The record contains Roy Giersch’s affidavit in which he averred that he has been employed by plaintiff for more than 25 years; that he is a special account representative with supervision and control of all records for the gas accounts on the Lake-Waller property; that these records were prepared and maintained in the ordinary course of business; and that the record entries were made within a reasonable time after the events occurred. His affidavit then went on to generally detail the dates gas service was requested and the amount of the delinquent accounts based on actual meter readings. In his written interrogatories, Giersch was unable to specify who actually requested gas service at the Lake-Waller building. Also, Giersch listed the dates of the meter readings but could not identify the meter reader.

After ascertaining defendants’ liability, the trial court initially granted a 60-day continuance to defendants to depose Giersch before addressing the issue of damages. This occurred but his deposition is not contained in this record. Giersch was also present in court when the question of the validity of the meter readings was discussed, and plaintiff’s counsel indicated that at the deposition Giersch said that every final bill was based on a meter reading. The trial court then found that Giersch’s affidavit was sufficient.

In People v. Mormon (1981), 97 Ill. App. 3d 556, 422 N.E.2d 1065, aff’d (1982), 92 Ill. 2d 268, we had occasion to interpret our supreme court’s decision on Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 367 N.E.2d 1238, concerning the admissibility of computer-generated records. We noted that a proper foundation for the admissibility of such evidence is established by showing “(1) that the electronic computing equipment is standard; (2) the entries are made in the regular course of business at or near the time of the transaction or event recorded; and (3) the sources of information, method and time of preparation were such as to indicate its trustworthiness and justify its admission.” (People v. Mormon (1981), 97 Ill. App. 3d 556, 565-66.) Further, defendants never questioned the actual reliability of plaintiff’s computer system. Giersch’s affidavit asserted that the records were timely compiled, and, even though his deposition was taken, defendants never offered any basis to dispute this assertion. Finally, the unchallenged sources of the computer information were meter readers who examined the meters in the Lake-Waller building on specified occasions. We believe these readings, as reported on the computer printout, were sufficiently trustworthy to permit their introduction by way of a computer printout. See generally Annot., 7 A.L.R. 4th 8 (1981).

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

Affirmed.

LINN and JIGANTI, JJ., concur.