author: PRESIDING JUSTICE HARTMAN

text:
    PAUL MONTES, Plaintiff and Counterdefendant-Appellee, v. DARNELL HAWKINS, Defendant and Counterplaintiff-Appellant (Hyde Park Bank & Trust Co., Trustee, Defendant).
    First District (2nd Division)
    No. 83—422
    Opinion filed July 17, 1984.

      Garland W. Watt and Buglass & Hawkins, both of Chicago, for appellant.
    William M. Doty and Peck & Wolf, both of Chicago, for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

This appeal emanates from the granting of summary judgment to plaintiff Paul Montes and the denial of similar relief to defendant Darnell Hawkins, in an action for specific performance of an agreement and accounting, and a counterclaim for rescission of the agreement.

Montes was the sole owner of a parcel of land on West 103rd Street in Chicago on which he undertook and partially finished construction of a 47-room motel prior to May 1979. On May 21, 1979, Montes and Hawkins entered into a written real estate sales contract obligating Montes to sell and Hawkins to purchase the partially finished motel and land for $400,000. “Simultaneously” executed between the same parties was another written repurchase agreement (Agreement), which generally required Montes to pay Hawkins $100,000 and Hawkins would assign to Montes certain beneficial interests in a land trust, to which the parties agreed to convey title. Although the real estate contract has been consummated, the Agreement has not, for various reasons ascribed by the parties to each other, as will presently appear. Montes has retained his $100,000 repurchase price, and Hawkins remains sole owner of the property, subject to a financing bank’s interest.

No issues are raised as to the pleadings, which are constituted of: Montes’ two-count, verified complaint against Hawkins and the Hyde Park Bank & Trust Company, as land trustee (Trustee), for specific performance of the Agreement and for an accounting of profits; Hawkins’ answer, affirmative defenses and counterclaim, which sought rescission of the Agreement for breach of contract; and Mon-tes’ answer to Hawkins’ demanded bill of particulars and his answer to Hawkins’ counterclaim.

Both Montes and Hawkins filed motions for summary judgment. Montes’ motion was allowed, and Hawkins was ordered to assign to Montes the beneficial interests specified in the Agreement and to provide an accounting upon Montes’ payment to him of $100,000 plus interest. The order denied Hawkins’ motion for summary judgment. Hawkins’ motion for reconsideration resulted in modification of the order with regard to the assignment, but directed remaining provisions of the order to remain in full force and effect.

The issues raised on appeal include whether: (1) summary judgment, specific performance and accounting were improperly granted to Montes; and (2) Hawkins instead is entitled to summary judgment.

The repurchase Agreement provided, among other things, that: Hawkins would use “his best efforts” to secure interim financing necessary to complete the construction of the motel and to secure permanent financing to pay the interim loan and pay the balance due Mon-tes on his part purchase money mortgage. (Par. 1.) When construction was completed, Hawkins was required to “*** take whatever action is necessary to secure the disbursement of the permanent financing.” (Par. 6.) Upon disbursement of the permanent financing, and following conveyance of the property into a land trust, Montes would pay to Hawkins the sum of $100,000 and, upon payment of said sum, Hawkins would assign to Montes one-third of the beneficial interest in the land trust along with a 50% interest in the power of direction in that trust. (Par. 7.) After payment and assignment take place, the parties are to divide the profits from the operation of the motel, with Hawkins or his solely owned corporation to be manager under certain lease terms. (Par. 8.) Both parties agree that the Agreement evidences the intent to form a partnership.

Hawkins obtained interim financing, completed the construction and placed the property in a land trust by October of 1979. He then secured permanent financing in December of 1979 from Highland Community Bank (Bank). In order to secure the permanent financing, the Bank required Hawkins to assign the entire beneficial interest of the land trust to it for collateral purposes; give the Bank complete discretionary control over the power of direction of the land trust; give the Bank a personal guarantee; submit a personal financing statement to the Bank; and assign to the Bank a life insurance policy. Hawkins did so. The assignment given to the Bank by Hawkins states, in part, “*** that this assignment is for collateral purposes only ***.” On December 22, 1981, Montes, through his attorney, among other things, requested Hawkins to inform the Bank that the assignment for permanent financing was in error because it should have been limited to collateral purposes only, rather than the full assignment it purported to be. Montes submitted a proposed form that was identical to the one Hawkins had signed, limiting it to collateral purposes only with the same language. This, Hawkins refused to do.

By affidavits submitted in the summary judgment proceedings, both Montes and Hawkins claimed they were ready, willing and able to comply with their obligations under the Agreement, and each denied the readiness, willingness or ability of the other to so perform. For approximately one year, the terms of the Agreement were not met. On March 31, 1981, the parties met at the Trustee’s office to perform the requirements of the Agreement. Montes and his counsel averred that the Trustee’s representative, William T. Doody, told them Hawkins could not make the assignment because he had previously assigned all his interest in the trust to the Bank. Doody’s affidavit asserted that he recalled no such statement and that if an assignor mistakenly executes a full assignment, rather than one intended for collateral purposes only, the mistake can be routinely and expeditiously remedied by re-execution of the assignment, accomplishable on the same day or so. In an affidavit in support of Hawkins’ motion for reconsideration of the summary judgment entered in Montes’ favor, the Bank’s president, George R. Brokemond, averred that he told Montes prior to May 1979 that if the Bank provided the necessary financing it would require any party who has any interest in the real estate on which the motel is located to personally guaranty payment of the loan; assign life insurance to the Bank in an amount to cover the proportionate share of the loan balance; submit a personal financial statement to the Bank; and, if the real estate was to be held in a land trust, the Bank would require all beneficial owners to personally guaranty the loan and to assign a beneficial interest in the land trust for collateral purposes only. Brokemond averred further that Montes told him he understood the aforesaid requirements, with which he would comply. The Bank loaned Hawkins $50,000 in order to provide funds to start work on completing the motel, since repaid, and made a mortgage loan to the Trust in the amount of $375,000 after the Bank received the documents aforesaid from Hawkins. Montes submitted a countervailing affidavit denying his having ever discussed financial arrangements with Brokemond on any occasion.

The summary judgment leading to this appeal directed Hawkins to assign a one-third beneficial interest in the Trust and one-half of the power of direction thereof to Montes upon his payment of $100,000 to Hawkins, plus interest. Hawkins was also required to account for one-third of the profits since March 31, 1981. Hawkins moved for reconsideration of the order, supported by Brokemond’s previously described affidavit. The Bank, as holder of the land trust power of direction, took the position that it could not consent to Hawkins’ assignment of one-third beneficial interest in the Trust until Montes submitted the necessary personal documents. The circuit court modified the summary judgment by making the ordered assignment from Hawkins to Montes “subject only to whatever rights, title or interest *** [the Bank] may have by virtue of a certain assignment ‘for collateral purposes only.’ ”

I

Hawkins contends that material, triable issues of fact were presented by the pleadings, supporting affidavits and documents. The circuit court, therefore, should not have granted Montes summary judgment, nor specific performance, nor should the court have ordered Hawkins to account for profits from March 31, 1981. Among the disputed factual issues identified by Hawkins was whether: Hawkins acted in accordance with the parties’ intent and pursuant to the terms of the Agreement when he assigned interests in the property as collateral to secure the financing; Montes in May of 1979 knew of and agreed to comply with the financing Bank’s requirements; and, as of March 31, 1981 and thereafter, Montes was indeed willing to take the steps necessary to comply with the Bank’s requirements.

Summary judgment is recognized as a salutary procedure in the administration of justice (Allen v. Meyer (1958), 14 Ill. 2d 284, 152 N.E.2d 576), but must be cautiously granted so that the respondent’s right to trial is not usurped in the presence of material evidentiary conflicting facts and inferences. The function of the procedure is to determine the existence or absence of triable issues of fact, not to try them. (Diomar v. Landmark Associates (1980), 81 Ill. App. 3d 1135, 1138-39, 401 N.E.2d 1287; Stines v. Otis Elevator Co. (1982), 104 Ill. App. 3d 608, 610, 432 N.E.2d 1298.) The moving party for summary judgment must affirmatively show a clear legal right thereto, free from doubt. If any facts upon which reasonable persons may disagree are identified, or inferences may be fairly drawn from those facts leading to differing conclusions, the circuit court must deny the motion and direct the resolution of those facts and inferences be made at trial. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005; Nolan v. Johns-Man- ville Asbestos & Magnesia Materials Co. (1979), 74 Ill. App. 3d 778, 794, 392 N.E.2d 1352; Littrell v. The Coats Co. (1978), 62 Ill App. 3d 516, 519-20, 379 N.E.2d 293; Century Display Manufacturing Corp. v. D.R. Wager Construction Co. (1977), 46 Ill. App. 3d 643, 648, 360 N.E.2d 1346.) When an agreement contains material terms capable of being understood in more than one sense and pleadings and affidavits conflict as to their meaning or are insufficient as bases upon which to determine their meaning as a matter of law, the circuit court must resort to an evidentiary hearing, rather than summary judgment proceedings, so that the parties may present their respective positions at trial as to the true intent and agreement they have executed. Rivan Die Mold Corp. v. Stewart Warner Corp. (1975), 26 Ill. App. 3d 637, 642, 325 N.E.2d 357; First National Bank v. Victor Comptometer Corp. (1970), 123 Ill. App. 2d 335, 341, 260 N.E.2d 99.

In the instant case, paragraph 8 of the Agreement provides that Montes is entitled to share in the profits after he pays Hawkins $100,000 and Hawkins makes the assignments of interest to Montes. Under the Agreement, then, no profits appear payable and no accounting necessary unless and until the exchange takes place, or could have taken place, and is the exchange contemplated by the parties. The parties met for closing at the office of the land Trustee on March 31, 1981. The requisite $100,000 purchase price was neither offered nor paid, and the necessary assignment of any interest was not made. The reasons for these failures are in dispute and are material, triable issues of fact which must be resolved by a trial or evidentiary hearing in order to logically and fairly determine the rights of the parties and the date, if any as yet, from which Montes is entitled to one-third of the profits.

One of the asserted factual disputes is whether Hawkins was justified, if not authorized by the Agreement and its intent, to secure permanent financing by assigning, for collateral purposes only, 100% of the beneficial interest and power of direction in the land trust to the Bank. Hawkins maintains that it was the parties’ intent that he use the beneficial interest and power of direction in the trust as collateral to secure the permanent financing in light of language in paragraph 6 of the Agreement, which mandates that Hawkins “shall take whatever action is necessary to secure the disbursement of the permanent financing.” In Hawkins’ view, this meant compliance with the Bank’s financing requirements, since refusal to comply would have denied to the trust the $375,000 loan and also would have been in violation of paragraph 1 of the repurchase Agreement, which required him to use his “best efforts” to obtain permanent financing. Montes takes an opposing view and contends that Hawkins should not have executed the assignment to the Bank and to have done so was in breach of sections 13 and 14 of the Agreement, which relate to right of first refusal and conformity of ownership transfers to the terms and conditions of the Agreement. The issue thus present was material since, if Hawkins’ assignment was in accord with the intentions of the parties as evidenced by the Agreement, then Montes had the duty of complying •with such reasonable conditions imposed on him by the Bank as a person who would have an interest in the real estate. Had these conditions been fulfilled, the Bank could have agreed to the requisite assignment and the closing could have taken place.

There is also a material, triable issue of fact regarding Montes’ familiarity with the Bank’s requirements as a condition of approving the assignment of a one-third beneficial interest to him. Montes claims that under the Agreement he has no responsibilities in securing or guarantying a loan or otherwise complying with the Bank’s requests. Hawkins, through Brokemond’s affidavit, contends that Montes knew of and agreed to comply with the Bank’s insistence that he submit to it a personal financial statement; assign to it an acceptable and approved life insurance policy; and that if the real estate was to be held in a land trust, the Bank would require all beneficial owners to personally guaranty the loan and to assign a beneficial interest in the land trust for collateral purposes only. Hawkins maintains that Montes knew of the above requirements well before the March 31, 1981, meeting and agreed to comply with them. Montes directly contradicts that position, stating that he never discussed any financing arrangement with Brokemond on any occasion. If, after trial, Hawkins prevails, then Montes must comply with the Bank’s reasonable assignment requirements to which he agreed.

The existence of another material, triable issue of fact appears as to whether on the date of closing, March 31, 1981, Montes’ unwillingness to submit the necessary financial documents to the Bank was with or without foundation. Montes contends that Hawkins could not assign a one-third beneficial interest to him pursuant to the Agreement because Hawkins had previously executed a “full assignment” to the Bank rather than an assignment for collateral purposes only. Significantly, the document which Hawkins executed in 1979 appears to have been the same form of assignment for collateral purposes only as that later proposed by Montes’ attorney to be substituted.

One seeking specific performance of a contract must prove clearly and convincingly that he himself has been always ready, willing and able to perform the contract. (Jones v. Dove (1943), 382 Ill. 445, 452-53, 47 N.E .2d 447; Lasher v. Loeffler (1901), 190 Ill. 150, 155, 60 N.E. 85.) The Agreement between Montes and Hawkins contemplates that Montes would be entitled to profits only after he paid $100,000, became the owner of a one-third beneficial interest and possessed 50% of the power of direction in the land trust. The trier of fact could indeed find that the closing did not take place on March 31, 1981, due to Montes’ inaction. Since Montes could be found to have been unjustifiably unwilling to take the steps necessary to obtain the approval of the financing Bank in order to complete the transaction, his entitlement to profits is in question and must be resolved upon a full trial in the case. Wolford v. James E. Rolls Investment Co. (1978), 61 Ill. App. 3d 405, 409, 377 N.E.2d 1314; and see Sullivan v. Burke (1958), 15 Ill. 2d 101, 153 N.E.2d 824.

It follows from the foregoing that the circuit court’s order granting Montes specific performance, summary judgment and an accounting from March 31, 1981, was premature.

II

Hawkins urges that his motion for summary judgment was improperly denied because the Agreement required his personal services and the contract was indefinite and incomplete. He points to paragraph 8 of the Agreement and its fourth preamble, from which he concludes that he is to be the sole manager of the motel. Thus, he maintains, specific performance of the Agreement requires that Hawkins give his personal services as manager of the motel, which call for his personal skill and judgment, contrary to law, citing Clark v. Truitt (1899), 183 Ill. 239, 55 N.E. 683. Hawkins further contends that certain terms relating to future leasing of the property are crucial elements of the Agreement and have been left to future negotiations. For this reason, the Agreement is indefinite, incomplete and therefore unenforceable as a matter of law, relying on Hintz v. Lazarus (1978), 58 Ill. App. 3d 64, 373 N.E.2d 1018. Lastly, Hawkins argues that because the Agreement fails to specify the division of losses between the parties and fails to specify the extent to which they will share in the ordinary and extraordinary expenses of operating the motel, the contract is so uncertain that it is incapable of enforcement, citing Fox v. Lawson (1979), 76 Ill. App. 3d 806, 395 N.E .2d 588. We disagree.

Paragraph 8 of the Agreement, as well as the fourth preamble, refer to “Hawkins or his solely owned corporation,” as the prospective operator of the motel. The Agreement thereby merely provides that the entity involved, whether sole proprietorship or solely owned corporation, will operate the motel. The Agreement simply grants Hawkins the choice of who shall manage the motel; it does not require that he personally do so. Further, the operation of the motel does not relate to the partnership and its apportionment of rental income. Here, Montes seeks specific performance only of the assignment of an interest in the land trust and power of direction. The Uniform Partnership Act (Act) (Ill. Rev. Stat. 1979, ch. 106½, pars. 1 through 43) is applicable to the case at bar (State Farm Mutual Automobile Insurance Co. v. Hanover Development Corp. (1979), 73 Ill. App. 3d 326, 391 N.E.2d 562), and is deemed part of the Agreement to the same extent as though expressly referred to or incorporated in the contract itself. Subject to the Agreement, remuneration of the partners, their rights and duties, as well as allocation of losses, are governed by section 18 of the Act. (Ill. Rev. Stat. 1979, ch. 106½, par. 18.) The duration of the partnership is covered by section 23 of the Act. Ill. Rev. Stat. 1979, ch. 106½, par. 23.

Paragraph 8 of the Agreement directs the rental by the land trust of the motel to Hawkins or his solely owned corporation for a period of two years with an option to renew for one additional year. This provision does not relate to the operation of the partnership but authorizes the land trust, after the above-described lease expires, to lease the motel to Hawkins or his solely owned corporation, or to any other person or entity. The clause only identifies the time period for the initial lease and who the lessee will be.

From the foregoing, it is evident that the cases relied upon by Hawkins are inapposite and that the circuit court properly denied Hawkins’ motion for summary judgment.

Accordingly, the decision of the circuit court granting Montes summary judgment, specific performance and an accounting must be reversed and the cause remanded for trial. The denial of Hawkins’ motion for summary judgment is affirmed.

Reversed and remanded in part; affirmed in part.

STAMOS and PERLIN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MILLER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHERRYL DECKER, Defendant-Appellant.
    Fourth District
    No. 4—83—0729
    Opinion filed August 2, 1984.

      Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

The defendant, Sherryl Decker, was tried by a jury, acquitted of attempted murder but convicted of two counts each of armed violence and aggravated battery, and sentenced to 18 years’ imprisonment. The offenses occurred when a Vermilion County sheriff’s deputy was trying to serve an arrest warrant for a minor offense on the defendant’s husband; shooting broke out, and the deputy was wounded in the neck and in the abdomen. On appeal the defendant argues that armed violence was doubly enhanced and unconstitutionally disproportionate here, that the trial judge erred in excluding some testimony regarding the defendant’s husband’s acts of violence, and that her sentence is excessive. We affirm.

The defendant does not raise the question whether her guilt was proved beyond a reasonable doubt, so only a brief summary of the evidence is required. The offenses here occurred on April 11, 1983, in a rural area of Vermilion County. That day Deputy Deckard and Investigator Howard telephoned Robert Decker, the defendant’s husband, to tell him that they wanted to inspect his gun collection; some neighbors had complained about his firing of automatic weapons in the vicinity. They did not tell Decker that they were also going to serve him with an arrest warrant. Deckard and Howard arrived at the house at about 3 o’clock in the afternoon. The house was owned by Robert Peevler, husband of Connie Peevler, Robert Decker’s daughter. At the time involved here the defendant, Robert Decker, their three children, a nephew of Robert Decker, and the nephew’s girlfriend were living at the house with the Peevlers and their two children. After examining nine guns, none of which were fully automatic, the deputies told Robert Decker about the warrant for his arrest on a misdemeanor charge; Robert Decker told them that he would rather die than go to jail. The officers advised him that he would be released upon posting bond of $100, and Investigator Howard took hold of his arm. Robert Decker got loose, ran out of the house, and then fired a shot at the deputies. Shots were fired from inside the house too. Deputy Deckard was shot in the neck and the abdomen and wounded seriously. Robert Decker escaped; later that day he took a woman hostage and forced her at gunpoint to drive him to Indianapolis, where he let the hostage go and then killed himself.

The defendant was charged and tried both as a principal and an accomplice. She raised the affirmative defense of compulsion and testified that she fired a gun several times during the disturbance but did so only in response to her husband’s command. She testified that she did not aim at or hit anyone. Defendant also described a long history of brutal abuse inflicted on her by Robert Decker. Other family members, testifying in the defendant’s behalf, corroborated this information. The trial judge did not allow an additional witness, Dorothea Roby, mother of Robert Decker, to testify on this subject; the court agreed with the State’s objection that the occurrences described in Roby’s testimony were too remote in time to be relevant.

The jury found the defendant guilty of two counts of armed violence and of the predicate felonies of aggravated battery and acquitted her of attempted murder; two other charges, conspiracy to commit murder and aggravated battery by use of a deadly weapon, had been dismissed before trial on motion of the State. The trial judge did not impose sentence on the two convictions for aggravated battery, for they merged in the armed violence convictions. (People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.) The bases for the two counts of aggravated battery were the great bodily harm inflicted on Deputy Deckard (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(a)) and his employment as a peace officer carrying out official duties (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(b)(6)); the State did not distinguish the charges on the basis of the separate wounds suffered by the deputy. Thus, the convictions for armed violence stemmed from a single act, and the trial judge imposed sentence on only one of them, that predicated on great bodily harm. See People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838 (a single act may support only a single conviction and sentence).

I

The defendant’s first argument concerns the proper scope of the armed violence statute, which enhances the penalties for various felonies if they are committed while the defendant is armed with a dangerous weapon. The offense is defined by section 33A — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2), which says:

“A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.”

The armed violence statute may apply even though the weapon is not used in committing the predicate felony; its mere presence may be enough. (People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627.) Dangerous weapons are divided into two categories (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 1), and the weapon that was used here, a handgun, falls into the more serious category, making the offense a Class X felony (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 3). The defendant argues that the armed violence conviction on which she was sentenced resulted from the impermissible double enhancement of her use of a gun in committing the underlying act. She also argues that the Class X penalty for this conviction is unconstitutionally disproportionate because her conduct is punished more severely than other, more serious offenses. Although the defendant arguably has waived these questions by failing to properly present them in the trial court, we choose instead to address them on their merits.

A

The only conviction on which the defendant was sentenced was one for armed violence. The predicate offense for that was aggravated battery causing great bodily harm (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(a)), a Class 3 felony (Ill. Rev. Stat. 1981, ch. 38, par. 12— 4(e)); simple battery is a Class A misdemeanor (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3). Because the great bodily harm, consisting of Deputy Deckard’s serious neck and abdominal injuries, was caused by a gun, the defendant argues that that weapon should not then be used to raise aggravated battery to the Class X felony of armed violence. The defendant argues that the penalty for her criminal conduct is being doubly enhanced by her use of the gun, contrary to Haron. In Haron the court said:

“Our review of the language of the statute and the authorities leads us to conclude that the General Assembly did not intend that the presence of a weapon serve to enhance an offense from misdemeanor to felony and also to serve as the basis for a charge of armed violence. In our opinion the requirement of section 33A — 2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon.” (People v. Haron (1981), 85 Ill. 2d 261, 278, 422 N.E.2d 627, 634.)

Thus, the court held that a charge of aggravated battery based on the use of a deadly weapon could not serve as the predicate felony for armed violence. As in Haron, the chain of double enhancement here would begin with a misdemeanor, battery, and not with a felony; we are not confronted with the question whether Haron applies also to a predicate felony that already has been enhanced from another class of felony rather than from a misdemeanor. Compare People v. Del Percio (1983), 118 Ill. App. 3d 539, 454 N.E.2d 1169, appeal allowed (1984), 96 Ill. 2d 569, and People v. Goodman (1982), 109 Ill. App. 3d 203, 440 N.E.2d 345, with People v. Luden (1982), 109 Ill. App. 3d 412, 440 N.E.2d 899.

Here, unlike Haron, the predicate felony for armed violence is not aggravated battery by use of a deadly weapon (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(b)(1)) but the distinct offense of aggravated battery causing great bodily harm (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(a)). The elements of the predicate felony should guide us here and should provide the basis for determining whether a violation of Harón has occurred. The presence or use of a weapon is not an element of aggravated battery causing great bodily harm, so therefore that offense may serve as the predicate felony for armed violence even though, as in the case here, the evidence adduced at trial shows that the harm was caused by the dangerous weapon. See People v. Owens (1982), 109 Ill. App. 3d 1150, 441 N.E.2d 908, and People v. Garda (1981), 103 Ill. App. 3d 779, 431 N.E.2d 1234 (no double enhancement when predicate felony for armed violence is aggravated battery causing great bodily harm).

Further support for this decision is found in Harón itself. The court said:

“Although it would appear that the aggravated-battery charge could have been based on section 12 — 4(a), [i.e., aggravated-battery causing great bodily harm], the aggravated-battery count against Haron charges that in committing the offense he used a deadly weapon (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1)). Thus the enhancement of the offense of battery to that of aggravated battery was based on the use of a deadly weapon.” (People v. Haron (1981), 85 Ill. 2d 261, 277, 422 N.E.2d 627, 634.)

This suggests that the court would not have found double enhancement had Haron’s charge of armed violence been based instead on the form of aggravated battery used here, great bodily harm. Similarly, in People v. Van Winkle (1981), 88 Ill. 2d 220, 430 N.E.2d 987, which reversed a defendant’s conviction for armed violence because the predicate felony was aggravated battery by using a deadly weapon, the court observed that aggravated battery causing great bodily harm probably could have been charged instead. See also People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477 (under the rules that a single act may support only a single conviction and that the predicate felony is an included offense of armed violence, the court vacated the defendant’s conviction for aggravated battery causing great bodily harm, the predicate felony there for armed violence).

Therefore, we conclude that the defendant’s use of a gun was not doubly enhanced and her conviction for armed violence predicated on aggravated battery causing great bodily harm is not contrary to Harón.

B

The defendant also argues that the Class X penalty for her conviction for armed violence is unconstitutionally disproportionate because it is more severe than the potential punishment for a more serious offense, voluntary manslaughter. The defendant relies on two recent decisions' by the supreme court finding exceptions to the broad language of the armed violence statute, which purports to enhance any felony that one may commit while armed.

In People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48, the supreme court held that voluntary manslaughter, a Class 1 felony, may not serve as the predicate felony for a charge of armed violence. Thus, voluntary manslaughter, even when committed with a gun, remains a Class 1 felony, and the defendant argues that because her conduct here was less serious than the offense of voluntary manslaughter, her potential punishment may not be greater. The defendant borrows this analysis from People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512, which held that unlawful restraint may not serve as the predicate felony for armed violence because greater offenses committed while armed, aggravated kidnaping and forcible detention, are punished less severely. Wisslead held that this violates the provisions in the Illinois Constitution on due process and proportionate penalties (Ill. Const. 1970, art. I, secs. 2, 11). The defendant reaches a similar conclusion here, invoking the same provisions in the State constitution.' To hold otherwise, the defendant argues, would encourage the commission of the more serious offense.

Ordinarily one offense is considered more serious than another simply because it is punished more severely; the various classes of offenses, with their different available penalties, provide a clear method for ranking the relative gravity of different crimes, and in the usual case the inquiry ends there. When this ordering principle is called into question, as it is here, then other criteria must be examined. For example, “Few would dispute that a lesser included offense should not be punished more severely than the greater offense.” (Solem v. Helm (1983), 463 U.S. 277, 293, 77 L. Ed. 2d 637, 651, 103 S. Ct. 3001, 3011.) Wisslead illustrates the use of that principle. The defendant there was charged with unlawful restraint, a Class 4 felony, and with armed violence predicated on that. In holding that unlawful restraint may not serve as the predicate felony, the court compared that offense with two others, aggravated kidnaping and forcible detention. Though committed with the same type of weapon as the Class X armed violence, aggravated kidnaping would be a Class 1 felony and forcible detention a Class 2 felony. In concluding that aggravated kid-naping is more serious than armed violence predicated on unlawful restraint, the court noted, “The penalty prescribed for unlawful restraint and the type of conduct involved in its commission illustrate that it is less serious than kidnaping.” (People v. Wisslead (1983), 94 Ill. 2d 190, 195, 446 N.E.2d 512, 514.) Incongruously, the less serious offense committed while armed was punishable more severely than the more serious offense committed while armed. Also, armed violence predicated on unlawful restraint is an included offense of forcible detention, committed while armed, yet may be punished more severely. See also People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029 (punishing possession of controlled substance more severely than delivery of same substance was contrary to legislature’s express intent and violated due process).

Wisslead depended on a comparison of closely related offenses, classifiable as included and greater. Here, the offense with which the defendant compares her conviction for armed violence is voluntary manslaughter, something unrelated and fundamentally different, and aggravated battery causing great bodily harm is not included in it. Besides the principle that an included offense should not be punished more severely than a greater offense, a number of other criteria exist that may guide a court in judging the relative gravity of an offense, a function normally performed by the legislature. These criteria include the use or absence of violence or threat of violence, the magnitude of the crime, the culpability of the offender, his mental state, and his motive. Solem v. Helm (1983), 459 U.S. 986, 77 L. Ed. 2d 637, 103 S. Ct. 3001.

Certainly the death of the victim is one respect in which voluntary manslaughter is more serious than the offense here of armed violence. But that circumstance is inherent in every comparison of voluntary manslaughter with an offense in which no one is killed, and if that were the only criterion, then armed violence with a category I weapon — the Class X offense — could never be predicated on a nonfatal felony. We do not think that the court in Alejos intended that result. In other respects, such as the offender’s motive, voluntary manslaughter is less serious than the conduct in question here, and the reasons set out in Alejos for not applying the armed violence provision to voluntary manslaughter are relevant in this regard. In Alejos the court articulated the distinctive nature of voluntary manslaughter:

“Because it requires that the defendant’s act be motivated by either a sudden and intense passion resulting from serious provocation or an unreasonable but actual belief that the circumstances required the use of deadly force (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 2(a), (b)), voluntary manslaughter, by its common law as well as its statutory definition, is an unpremeditated crime, induced by sudden fear or duress and committed without time for proper reflection, [citations].” (People v. Alejos (1983), 97 Ill. 2d 502, 507, 455 N.E.2d 48, 50.)

These characteristics of voluntary manslaughter made it unsuitable to serve as the predicate felony for armed violence:

“The general application of the armed-violence provision could be expected to discourage those who contemplate a felonious act beforehand from carrying a weapon when they set forth to perform the act, and from this perspective the provision serves a needed purpose. Yet no one who commits voluntary manslaughter intends in advance to take a life or employ deadly force; the only ‘intent’ of this sort that enters into the crime is the decision, arrived at without deliberation and in most cases instantaneously, to use force capable of killing. Before that decision is arrived at, the person who is guilty of voluntary manslaughter typically has no criminal intent whatever.” 97 Ill. 2d 502, 509, 455 N.E.2d 48, 51.

Guided by the criteria suggested in Solem and by the nature of voluntary manslaughter, we conclude that aggravated battery causing great bodily harm, when committed with a weapon, may be considered more serious than voluntary manslaughter committed with a weapon, and therefore the statutory scheme producing this result is constitutional.

II

The defendant next argues that the trial court erred in excluding the testimony of Dorothea Roby, who would have provided confirmation of the vicious control that Robert Decker, her son, exerted over the members of his family, including his parents and the defendant. The defendant argues that Roby’s testimony was crucial to her defense of compulsion and that the court’s decision to exclude that testimony denied her the constitutional right to present a defense. (See Washington v. Texas (1967), 388 U.S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (right to present a defense is a fundamental element of due process).) The trial judge found that the occurrences that Roby would have testified about were too remote in time and therefore excluded that testimony as irrelevant.

Originally the defendant was charged only as a principal, and she raised the defense of compulsion to counter the State’s decision to try her as an accomplice also. Thus, at trial the defendant denied shooting at or wounding Deputy Deckard, and she testified that she harmlessly fired her gun several times at a wall or door in response to her husband’s command to help him and shoot. According to the defendant, after breaking loose from Investigator Howard, Robert Decker reentered the house, grabbed the defendant’s gun, and fired at and hit Deputy Deckard. Evidence introduced by the State showed instead that it was the defendant who shot and wounded the deputy.

Section 7 — 11(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 11(a)) sets forth the affirmative defense of compulsion:

“A person is not guilty of an offense, other than an offense punishable with death’ by reason of conduct which he performs under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believes death or great bodily harm will be inflicted upon him if he does not perform such conduct.”

The jury was instructed on compulsion. The defendant carried out her burden of producing some evidence of the defense by her own testimony, which detailed her 17-year relationship with Robert Decker, and by the testimony of two of her children, Debbie and Scott Decker, and the Peevlers; they described occurrences in the family’s life since September 1982, when the defendant moved to the house upon her release from prison in Indiana. This testimony showed that Robert Decker tyranically controlled the operation of the household and the lives of the inhabitants. He beat the defendant when she failed to follow his orders. He was fascinated by guns and practiced target shooting endlessly, sometimes trying to shoot out the lighted ends of cigarettes that the defendant held in her mouth. Whenever the defendant refused to be a target, or refused any of Robert Decker’s other orders, he beat her up.

The trial judge declined to admit into evidence the testimony of Dorothea Roby, Robert Decker’s mother. The court explained that the most recent occurrences that Roby would describe happened in 1981, about two years before the events here. In an offer of proof Roby recounted beatings inflicted on the defendant by Robert Decker, and Decker’s threats against his parents whenever they tried to intervene. Part of her testimony pertained to events occurring even before 1971.

A trial judge’s decision whether to admit or exclude testimony as relevant or irrelevant is reserved to his discretion. (People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696.) Evidence may be irrelevant if it is remote in time from the the fact of consequence that it is being offered to prove. (See People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696; People v. Dukett (1974), 56 Ill. 2d 432, 308 N.E.2d 590; People v. Wilson (1948), 400 Ill. 603, 81 N.E.2d 445.) Here, the trial judge was correct in excluding Roby’s testimony. What Robert Decker did in 1971 had little bearing on the defendant’s fear of him in 1983, and even occurrences in 1981 were too remote to be relevant evidence. The point in time at which these occurrences would have been relevant cannot be fixed with precision, and the trial judge did not abuse his discretion in barring this testimony, which concerned events that occurred two or more years before the offenses here. The trial judge’s decision did not deny the defendant her constitutional right to present the defense of compulsion. Other, relevant testimony on that was admitted.

III

The defendant argues last that her sentence of 18 years’ imprisonment, imposed on a single conviction for armed violence, is excessive. The offense here was a Class X felony, punishable by a term of imprisonment of between 6 and 30 years (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(3)) and a fine of up to $10,000 (Ill. Rev. Stat. 1981, ch. 38, par. 1005-9-l(a)(l)).

The defendant’s sentence is not an abuse of discretion. (See People v. La Pointe (1982), 88 Ill. 2d 482, 431 N.E.2d 344 (expressing standard for appellate review of sentences).) The defendant was convicted of several felonies and misdemeanors in Indiana in the period from 1979 to 1981; for the most part they were thefts or arose from her possession of guns. No sentence exceeded two years’ imprisonment. The conduct here was serious. When Robert Decker learned that the sheriff’s deputies were coming to his house, he ordered everyone present to arm himself or herself, and he handed the defendant her gun. In the events that followed Deputy Deckard was wounded seriously. The trial judge considered the factors offered by the defendant in mitigation. Given the nature and circumstances of the offense and the history and character of the defendant, we conclude that her 18-year sentence of imprisonment for armed violence predicated on aggravated battery causing great bodily harm is not an abuse of discretion. We said earlier that the predicate felonies merged in the two convictions for armed violence, which were based on the same act and redundant, and therefore we vacate the three extra convictions, on which the defendant was not sentenced.

Affirmed in part and vacated in part.

MILLS, RJ., and WEBBER, J., concur.


author: JUSTICE JONES

text:
    ELSIE RIKARD, Plaintiff-Appellant, v. DOVER ELEVATOR COMPANY et al., Defendants-Appellees.
    Fifth District
    No. 5—83—0571
    Opinion filed August 7, 1984.

      Harris, Lambert and Wilson, of Marion, for appellant.
    Dennis E. Rose, of Donovan, Hatch & Constance, of Belleville, for appel-lees.
   JUSTICE JONES

delivered the opinion of the court:

The plaintiff, Elsie Rikard, brought suit in negligence against the defendants, Dover Elevator Company, Ceder Elevator Company, Ceder Elevators and Equipment, Inc., and Martin A. Ceder, Inc., for personal injuries suffered when an elevator that she was using at the Marion Memorial Hospital malfunctioned. A jury found in favor of the defendants and against the plaintiff, and the trial court denied plaintiff’s post-trial motion. Of the numerous issues plaintiff presents for appeal we need consider, in view of the disposition we make, only one of the issues she raises concerning the trial court’s refusal to give plaintiff’s instruction No. 1 (Illinois Pattern Jury Instruction (IPI), Civil, No. 1.03 (2d ed. 1971)), relating to proof by circumstantial evidence; No. 4 (IPI Civil No. 2.11), relating to evidence presented by the reading of depositions; No. 5 (IPI Civil No. 10.01), defining “negligence”; No. 6 (IPI Civil No. 10.02), defining “ordinary care”; No. 8 (IPI Civil No. 15.01), defining “proximate cause”; and No. 10 (IPI Civil No. 21.01), defining burden of proof.

Upon the trial court’s refusal to give the instructions in question, the following colloquy ensued between defense counsel and the trial court:

“Attorney Rose: Your Honor, as the Court has indicated, that even though we made no objections to certain of Plaintiff’s Instructions, [sic] does not intend to give them to the jury. We, at this time, would like to show that we not only do not object, but also tender the same instructions. More specifically, I am concerned that in a negligence case, if the Plaintiff’s Instruction Number 5, which is the very definition of negligence, is not given, it gives the jury no standard on which to make their decision, no guideline, and, I think, that would be appropriate with respect to the definition or the burden of proof, jurors some having had criminal trials, some having had civil, need to be told that there is some burden and that there is some standard, specifically, more probably true than not true. And while that, again, gives them leeway, it seems to be the law in Illinois, and, if we don’t give them that, I am concerned that the record may be an admission, in terms of review. That’s all, your Honor. I think that the time you would take to give them those instructions, and the possible consequences on them to either side, if a verdict is either high or low, could leave us in a very difficult position; both sides have invested quite a bit of time and money in this case and given the guidelines that have been basically accepted by the various Court systems, I’m just concerned that not giving them might open us up for appeal on a problem that we really need not have. There are enough matters in the case that, I think, are going to be difficult for us to do; and, so we would respectfully accept the Court’s decision and ask to also tender those.
COURT: Jury instructions represent, probably, no more than an attempt by society to control the decision which is made by the jury. That does not mean that they are not instructed, with particularity, the two that you have focused on. The definition of negligence, as it is now, in Illinois, as it is now stated in I.RI. 10.01 simply tells the jury, negligence is anything you say it is. On the burden of proof, that instruction is best left to counsel, in their summations. They may use that language, precisely, in their summation. If it is not used precisely, then I have the instruction form here that I can then, on my own motion, without notice, give to the jury.”

It is elementary that the court instructs the jury in the law and the jury finds the facts and applies them to the law. Without basic instructions, each juror would be free to make his or her own interpretation of the law. Instructions provide jurors with a uniformity of approach in the application of the facts to the law. It is, likewise, elementary that different kinds of cases call for a different degree of persuasion to be met by the party who bears the burden of proof. In a negligence case the party hearing the' burden of proof must persuade the trier of fact that the proposition on which that party has the burden is, as IPI Civil No. 21.01 states, “more probably true than not true.” In a criminal case the burden is, of course, the familiar one of proof beyond a reasonable doubt (Illinois Pattern Jury Instruction, Criminal, No. 2.03 (2d ed. 1981)). In a case involving termination of parental rights, however, evidence of the parent’s unfitness must be clear and convincing. (Blakey v. Blakey (1979), 72 Ill. App. 3d 946, 391 N.E.2d 222.) Similarly, a claim based upon an alleged oral contract to make a will must be proved by clear, explicit, and convincing evidence. (In re Estate of Shed (1965), 58 Ill. App. 2d 196, 206 N.E.2d 121.) Other kinds of cases calling for a different degree of persuasion may be found. Indisputably, real distinctions exist among these burdens of persuasion. Jurors in any given case may well be aware of, or even have sat upon a jury in a prior case that called for, a standard of proof different from the one to be applied in the case before them.

The defendant relies upon Frank v. Davies (1966), 66 Ill. App. 2d 271, 214 N.E.2d 297, and Brennan v. Leshyn (1964), 51 Ill. App. 2d 132, 201 N.E.2d 167, in both of which the court held that the trial court’s failure to define burden of proof according to the IPI Civil instruction was not reversible error. In Brennan the court on review stated of the term that it “is commonly used and the jury may be presumed to know its meaning” (51 Ill. App. 2d 132, 142, 201 N.E.2d 167, 171). In Frank, which cites Brennan, the court commented, “In our country, the most litigious in the world, it is beyond belief that a jury would not know its meaning.” (66 Ill. App. 2d 271, 275, 214 N.E.2d 297, 299.) Because of the varying burdens of proof that obtain in different kinds of cases we choose not to follow Frank and Brennan. Without being instructed as to the burden of proof to be applied in the case before them, jurors may well apply the wrong standard, albeit one with which they are familiar, to the extreme prejudice of a litigant. The disparity in the burdens of persuasion in the many kinds of cases that come before courts render it impossible to say that jurors, without instruction, would know the burden of proof to be applied in a particular case. Therefore, it is essential that jurors receive a definition or description of the applicable burden of proof.

In this case that definition was not embodied in any of the other instructions given, and the failure to give plaintiff’s instruction No. 10 defining the burden of proof constitutes reversible error, quite apart from the trial court’s refusal to give the other instructions of which the plaintiff complains.

The trial court refused to instruct the jury upon the definition of “proximate cause.” We note that proximate cause was a contested issue at trial. Thus, on remand it would be advisable for the trial court to give that instruction if it is tendered. Similarly, on remand it would be advisable for the trial court to instruct the jury upon the definition of “negligence.” The trial court’s statement at the instruction conference does not represent a correct statement of the law of instructions. Further discussion of the other instructions omitted by the trial court is unwarranted, as is discussion of the issues unrelated to instructions plaintiff presents for review.

Reversed and remanded.

WELCH, P.J., and KASSERMAN, J., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAXINE GRAHAM, Defendant-Appellant.
    Fourth District
    No. 4—83—0826
    Opinion filed August 2, 1984.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J..Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Rebecca L. White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant was convicted by a jury of theft with a prior theft conviction. (Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1.) She was sentenced to six years’ imprisonment, the sentence to run concurrently with the six-year sentences in Champaign County cause Nos. 83 — CF—1323 and 83 — CF—959. Defendant appeals from the judgment of the circuit court of Champaign County. We affirm.

The single issue on appeal is whether the trial court erred in sentencing defendant to the maximum extended term of six years’ imprisonment for theft with a prior theft without the benefit of a pre-sentence investigation report, given the language of section 5 — 3—1 of the Unified Code of Corrections. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 3—1.) That section provides:

“A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.
However, the court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant’s history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment.”

Defendant was convicted of this charge on November 14, 1983. The cause was continued for sentencing to December 20, 1983, and the court services office was directed to conduct a presentence investigation and prepare a presentence report. On December 6, 1983, defendant pleaded guilty to Champaign County causes Nos. 83 — CF— 959 and 83 — CF—1323, both charges of theft with a prior theft conviction. This case was called for sentencing and pursuant to the terms of a plea agreement, she was sentenced in this case and in Nos. 83— CF — 959 and 83 — CF-1323 to concurrent terms of six years’ imprisonment. In addition, Champaign County causes Nos. 83 — T—13889, 83— CM — 1097, and 83 — CF—1475 were dismissed.

While accepting defendant’s guilty plea in causes Nos. 83 — CF— 959 and 83 — CF—1323, the following exchange ensued:

“THE COURT: *** I assume there is a waiver of any presen-tence investigation and report.
[DEFENSE COUNSEL]: That’s correct, your honor.
THE COURT: In connection with that, [prosecutor], I’m aware of a prior background here.
[DEFENSE COUNSEL]: Your honor, we would stipulate that the Court is aware of the prior background.”

The court then sentenced defendant. Defense counsel stated that the court had not advised defendant of her appellate rights. In response, the court ordered the clerk of the court to file a notice of appeal in this cause.

On appeal, defendant urges that the presentencing report requirement of section 5 — 3—1 is mandatory, relying on our supreme court’s decision in People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416, and that her sentence should be vacated and the cause remanded for a new sentencing hearing to be conducted with the benefit of a pre-sentencing report. Defendant now contends that (1) at no time did she state that she agreed to the imposition of a six-year period of imprisonment, and (2) merely stipulating that the judge knew of the defendant’s background did not provide a specific finding for the record as to what the background was. In Youngbey, the court held the presen-tence investigation and report to be a mandatory legislative requirement which cannot be waived, absent agreement between the parties as to the sentence to be imposed. The rationale for finding the report mandatory was that it was not solely for the benefit of the defendant, but also for the enlightenment of the court. Since it was intended to serve as a “useful tool for the sentencing judge,” it was not the defendant’s “personal right” which could be waived. See People v. Davis (1982), 93 Ill. 2d 155, 442 N.E.2d 855.

The State maintains that the exception embodied in the second paragraph of the statute, that of an agreement as to the sentence, applies here. In this regard we note the following exchange:

“THE COURT: Okay. [Prosecutor], there have been certain plea agreements?
[PROSECUTOR]: Yes, your honor. In Case 83-CF-959, my understanding is that the defendant will plead to Count 3 of the indictment, and we would recommend to the Court she be sentenced to six years in the Illinois Department of Corrections and be given credit for five days heretofore served, and that she will pay the court costs of $107.80. That sentence is to run concurrently with a six-year sentence in 83 — CF—907 and 83— CF — 1323. 83 — T—13889, 83-CM-1097, and 83-CF-1475 are to be dismissed.
In 83 — CF—1323, my understanding is that the defendant will plead to Count 2 of the information. In exchange we recommend she be placed in the Illinois Department of Corrections for six years, that she be given credit for seven days heretofore served, that she pay the court costs of $84.20, and, again, this sentence is to run concurrently with a six-year sentence in 83— CF — 907 and 83 — CF—959. I would state for the 'record that the court costs in 83 — CF—907 are $95.40.
THE COURT: [Defense counsel].
[DEFENSE COUNSEL]: Yes, your honor. That’s my understanding of the plea agreement.
THE COURT: [Defendant], did you understand the statements of the State’s Attorney concerning these agreements?
[DEFENDANT]: Yes.
THE COURT: You’ve talked to [defense counsel] about those?
[DEFENDANT]: Yes.
THE COURT: So, in fact, those are your agreements?
[DEFENDANT]: Yes.” (Emphasis added.)

We construe defendant’s responses as a concurrence in the terms of the agreement as stated. We do not deem the situation presented here to be such that waiver of a written presentence report of investigation could not be validly made within the meaning of the statute and consistent with Youngbey.

Section 5 — 3—1 of the Unified Code of Corrections speaks of a situation where “both parties agree” to a “specific sentence.” The phrase “both parties” obviously refers to the State and the defense. Clearly, agreement of the court, pursuant to Supreme Court Rule 402(d)(2) (87 Ill. 2d 402(d)(2)) or otherwise, is not required. As the State cannot impose sentence, its recommendation here for a sentence of six years’ imprisonment must be taken as an agreement for the imposition of that sentence. The position of the defense is not as clear. However, the defense made no objection to that sentence nor recommendation for a different sentence. (Contrast with People v. Zozak (1981), 101 Ill. App. 3d 590, 428 N.E.2d 524, wherein the State recommended two years’ imprisonment and defendant recommended probation with the first six months in custody.) When that position was taken by the defense in the context of the matter being presented to the court as part of an agreement between the parties, although the language used was perhaps not as specific as a strict reading of the statute would contemplate, the trial court was entitled to conclude that the defendant was in agreement within the meaning of section 5 — 3—1. As defendant stipulated to the court’s awareness of her prior criminal background, she cannot now complain on appeal that the court did not recite the specifics of her criminal record.

Affirmed.

GREEN and MILLER, JJ., concur.


author: JUSTICE SCOTT

text:
    RICHARD COOK, Plaintiff-Appellant, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    Third District
    No. 3—83—0702
    Opinion filed June 18, 1984.
    Modified on denial of rehearing August 23, 1984.
    Gary D. Nelson, Daniel L. Schmidt, and Judith A. Schieber, all of Heyl, Royster, Voelker & Allen, of Peoria, for appellant.
    James J. Elson and Walter D. Barra, both of Canton, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Richard Cook and Larry Hardesty were both employees of Grover DeCounter. DeCounter owned an automobile that Cook and Hardesty were using in their employment. Cook was the driver, Hardesty the passenger. An accident occurred in which Hardesty was injured. He brought suit against his co-employee, Cook.

DeCounter insured the automobile with Country Mutual. Country Mutual refused to defend the lawsuit by Hardesty against Cook. Cook settled the lawsuit with Hardesty. Cook now brings an action against Country Mutual for breach of its duty to defend.

The Country Mutual policy insured “anyone using an insured vehicle with [the named insured’s] permission.” However, the policy excludes from coverage “bodily injuries sustained by any employee of an insured in the course of employment for that insured.” Finally, the policy states that “the insurance coverage under Section 1 applies separately to each insured against whom a claim or lawsuit is filed.” Country Mutual bases its refusal to defend on the employee status of the injured party Hardesty. The circuit court of McDo-nough County ruled in favor of Country Mutual, determining that no obligation to defend existed, and this appeal by Cook is taken from that ruling.

Cook relies on a 1975 decision of the supreme court, United States Fidelity & Guaranty Co. v. Globe Indemnity Co. (1975), 60 Ill. 2d 295, 327 N.E.2d 321, which states:

"*** severability clause provides each insured with separate coverage, as if each were separately insured with a distinct policy, subject to the liability limits of the policy. The employee exclusion, therefore, does not exclude protection for an additional insured against an injury suffered by an employee of another insured. The exclusionary clause applies only to the situation where an insured is sued by its own employee.
A reasonable interpretation of the language of the severability clause, that ‘the insurance afforded applies separately to each insured,’ leads to the obvious conclusion that each insured is to be treated as if each were separately insured. The language shows that the insurer recognizes an obligation to additional insureds distinct from its obligations to the named insured.” (60 Ill. 2d 295, 299, 327 N.E.2d 321, 323.)

The supreme court goes on to explain that this interpretation of the employee exclusion is consistent with the purposes and the policies underlying the workman’s compensation law.

The opinion in United States Fidelity recognizes and distinguishes prior decisions which addressed the sole issue presented in this appeal. The instant case is controlled by the supreme court’s reasoning and decision in United States Fidelity. Country Mutual attempts to distinguish the language in the policies of insurance involved in the United States Fidelity case and the instant case. Specifically, Country Mutual argues that in the instant case the exclusionary clause refers to “an” insured rather than “the” insured and then goes on to argue that “an” means “any.” We are not impressed with this tenuous argument. To accept it would dictate that we accept any arbitrary definition of the word “an,” but of more import, we are impressed with the supreme court’s observation in United States Fidelity that “[i]f liability for this latter type occurrence was to be excluded from the policy, it could have been clearly stated.” (Emphasis added.) 60 Ill. 2d 295, 299, 327 N.E.2d 321, 323.

For the reasons set forth, the judgment of the circuit court of McDonough County which dismissed the plaintiff’s complaint is reversed, and this case is remanded for further proceedings.

Reversed and remanded.

STOUDER and HEIPLE, JJ., concur.


author: JUSTICE STOUDER

text:
    BEVERLY VAN FLEET, Plaintiff-Appellant, v. FRED VAN FLEET et al., Defendants-Appellees.
    Third District
    No. 3—83—0543
    Opinion filed August 6, 1984.
    Modified on denial of rehearing August 23, 1984.

      Herbert F. Schultz, of Wingard, Schultz, Shearer & Melaas, of Rock Island, for appellant.
    Karl Bredberg, of Aledo, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal is the result of a ruling by the circuit court of Mercer County that defendant-appellee, Tony Van Fleet, was a proper party entitled to redeem three tracts of real estate from a mortgage foreclosure sale to the purchaser, plaintiff-appellant Beverly Van Fleet.

In divorce proceedings between the plaintiff, Beverly Van Fleet, and her husband, Fred Van Fleet, an order was entered in July 1980 awarding Beverly a mortgage against three tracts of real estate owned by her husband in the amount of $103,460. In addition, certain other sums of money totaling $43,524 in settlement of property issues were awarded Beverly and reduced to judgment in November 1981. The court then ordered the execution of the judgment and the foreclosure of the mortgage.

On June 28, 1982, a judgment sale was held, at which time the three tracts were sold separately for the total amount of the November 1981 judgment plus accrued interest and costs. Tracts I and II were purchased by Beverly for $22,747 each and Tract III was purchased by Tony for $501.

The court entered a judgment for foreclosure and sale in this cause of action in October 1982 and on November 12, 1982, the three tracts were sold at a sheriff's sale en masse to Beverly for $178,336. Of this amount, $131,633 represented the mortgage debt plus costs and attorney’s fees, and $6,703 was the bid for the November 1981 judgment together with statutory interest. On January 7, 1983, the final redemption date set forth in the order of October 12, 1982, Beverly was issued a sheriff’s deed for all three tracts. Thereafter, on March 28, 1983, Tony received a sheriff’s deed as to the tract he had purchased on June 28,1982, and the next day he filed a motion to redeem.

On April 29, 1983, Fred Van Fleet quitclaimed his interest in all three tracts to Tony and on May 11, 1983, the court ruled on the motion to redeem, declaring Tony to be a proper party to redeem all three tracts and determining the final redemption date to be May 11, 1983. The court also found that the sheriff’s deed dated January 7, 1983, had been prematurely issued to Beverly prior to the expiration of the redemption period and that Beverly had extinguished her judgment by bidding the judgment amount at the mortgage foreclosure sale. The redemption amount was held to be $187,131, consisting of the foreclosure bid price of $178,336 plus $8,795 in accrued interest.

On May 11, 1983, Tony quitclaimed his interest in all three tracts to John D. Shunick, who redeemed the property that same day by paying the amount to the clerk of the court. The plaintiff declined to accept the amount so tendered and filed this appeal.

The issue raised by plaintiff on appeal is whether the defendant was a proper party to redeem all three tracts of the real estate in question. We find that he was entitled to redeem all three tracts.

Section 12 — 128 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 12 — 128) deals with the redemption rights of a defendant as to real property sold at a sheriff’s sale. This section applies to suits to foreclose the lien of a mortgage or trust deed in the nature of a mortgage executed on or after August 7, 1961, or to foreclose any other lien upon real estate, arising on or after August 7, 1961, which is not governed by sections 12 — 124, 12 — 125, 12 — 126 and 12-127.

On June 29, 1981, by Public Act 82 — 511, section 18e of “An Act in regard to judgments ***” (Ill. Rev. Stat. 1981, ch. 77, par. 18e) was amended to reduce the redemption period from 12 months to six months, effective January 1, 1982. On August 19, 1981, the legislature adopted Public Act 82 — 280, the Code of Civil Procedure, wherein section 18e of “An Act in regard to judgments ***” (Ill. Rev. Stat. 1981, ch. 77, par. 18e) was to become section 12 — 128 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 12 — 128), effective July 1, 1982.

Although section 18e had been prospectively amended, such amendment was not reflected in section 12 — 128 until July 13, 1982, when by Public Act 82 — 783, section 12 — 128 was amended to conform with the change in the redemption period effected by Public Act 82— 511. Thus, the redemption period for real estate sold at a mortgage foreclosure sale or a sale to foreclose any other lien upon real estate was six months from January 1, 1982, through June 30, 1982; 12 months from July 1,1982, through July 12, 1982; and six months thereafter.

Beverly contends that because the six-month redemption period was in effect on the date of the judgment sale, June 28, 1982, Fred’s right to redeem expired on December 28, 1982, at which time Beverly acquired Fred’s right to redeem Tracts I and II under the mortgage foreclosure sale. Beverly further contends that Tony acquired no right of redemption as to Tracts I and II under the mortgage foreclosure sale by virtue of the quitclaim deed conveyed to him from Fred. According to Beverly, Tony only had a right to redeem Tract III based on his sheriff’s deed acquired at the judgment sale, and because the property was sold en masse, Tony could only acquire title to Tract III by tendering the entire purchase price.

Section 12 — 138 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 12 — 138) provides that anyone entitled to redeem “may redeem the whole or any part of the premises sold, in like distinct parcels or quantities in which the same were sold.” This section has been construed to permit a redemption in “distinct parcels” only when the tracts were so sold. Where two or more tracts of land are sold en masse, redemption must be en masse. Oliver v. Croswell (1866), 42 Ill. 41; Oldfield v. Eulert (1893), 148 Ill. 614, 36 N.E. 615.

However, Beverly’s contention that she acquired Fred Van Fleet’s right of redemption under the mortgage foreclosure sale upon the expiration of the redemption period for the judgment sale is clearly erroneous. Beverly only received a certificate of sale for Tracts I and II following the judgment sale. She was never issued a sheriff’s deed for these tracts.

A certificate of sale is nothing more than a right to either the redemption money if a redemption is made or a deed in case no redemption is made. The title of the holder of the right to redeem is a fee title. If a deed is never issued to the holder of the certificate of sale, the title remains in the holder of the right to redeem and does not revest in him. The holder of the right to redeem never loses title until the deed actually issues. Lightcap v. Bradley (1900), 186 Ill. 510, 58 N.E. 221; Hack v. Snow (1929), 338 Ill. 28, 169 N.E. 819; Schroeder v. Bozarth (1906), 224 Ill. 310, 79 N.E. 583; Sutherland v. Long (1916), 273 Ill. 309,112 N.E. 660.

In Lightcap, the court stated:

“The certificate of purchase does not transfer title, but only assures to the purchaser a conveyance of the legal title if the premises are not redeemed ***.
*** In this State the purchaser under a sheriff’s sale upon judgment and execution, or at a master’s sale on foreclosure of a mortgage, acquires by his purchase no new title to the premises until the period of redemption has passed, and he is entitled to a deed. *** After the expiration of the period of redemption the title of the mortgagor would be absolutely gone, in the sense that the purchaser had become absolutely entitled to a conveyance of it and in this sense it has often been said that his title is gone, but it is never actually out of him until a conveyance is made. The purchaser cannot oust him from possession or call for an account of rents and profits, without a deed, and the certificate of purchase could never change from a lien into title to the land until a deed is made. The mortgagor’s right is gone if the purchaser complies with the statute and avails himself of the right to a conveyance of the title. By the decree and by the statute the title of the mortgagor and those claiming under him would only be divested, and the legal title vested in defendant upon the execution of a deed ***.” Lightcap v. Bradley (1900) 186 Ill. 510, 531-33, 58 N.E. 2d 222, 227-28.

Beverly successfully bid on Tracts I and II at the judgment sale and was issued a certificate of sale; however, she never received a sheriff’s deed for said tracts. Because of her failure to do so, Fred’s title to Tracts I and II was never divested. The quitclaim deed of April 29, 1983, conveyed Fred’s interest in Tracts I and II to Tony, including the right to redeem Tracts I and II under the mortgage foreclosure sale. By virtue of this interest in Tracts I and II, and his sheriff’s deed to Tract III, Tony Van Fleet was the proper person to redeem all three tracts of real estate under the mortgage foreclosure sale.

Beverly also contends that, while the sheriff’s deed of January 7, 1983, was erroneously issued, it should still be given effect. Beverly cites cases holding that erroneous application of a statute does not render the resulting judgment void and that a litigant’s only remedy is to appeal that decision. While these cases recite abstract propositions of law, they are not applicable to the present case.

It is well settled that the statutory right of redemption after the foreclosure sale is independent of the decree. The statute gives the right, not the decree. No action of the court is necessary to confer the right on the parties entitled, and no action of the court can take it away. (Illinois National Bank v. Gwinn (1945), 390 Ill. 345, 61 N.E .2d 249.) The court in Gwinn held that “A purchaser at a foreclosure sale buys the property subject to the statutory right of redemption, which can be exercised in the mode prescribed by statute, regardless of the provisions of the decree and notwithstanding the premature issuance of a master’s deed in accordance with such decree.” (390 Ill. 345, 353, 61 N.E.2d 249, 253.) It is important that anyone, who possesses the right of redemption, should not lose that right by mistake or misinterpretation. The trial court was correct in finding that the sheriff’s deed based on the foreclosure sale was prematurely given before the redemption period had run and in ordering it void.

Accordingly, the decision of the circuit court of Mercer County that defendant appellee Tony Van Fleet was a proper person to redeem all three tracts of property is affirmed.

Affirmed.

SCOTT and BARRY, JJ., concur.