author: JUSTICE STOUDER

text:
      In re ESTATE OF MYRON J. NAKAERTS, Deceased (Armand Nakaerts, Ex’r of the Last Will and Testament of Myron J. Nakaerts, Petitioner-Appellant, v. Patricia Nakaerts, Respondent-Appellee).
    Third District
    No. 3-83-0771
    Opinion filed July 20, 1984.
    Rehearing denied August 22, 1984.
    Ronald E. Boyer, of Watseka, for appellant.
    Leonard F. Sacks, of Kankakee, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The trial court entered a judgment holding that the respondent, Patricia Nakaerts, was entitled to a surviving spouse’s award and allowing her to renounce the will of the deceased, Myron J. Nakaerts. Armand Nakaerts, the executor of Myron’s estate and the petitioner, sought relief from the judgment under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1401), formerly section 72 of the Civil Practice Act. The court denied the executor’s petition. It is from that denial that the executor appeals.

The case has a lengthy history involving both dissolution and probate proceedings. Patricia and Myron were married in 1960. Two children were born of the marriage. In 1966 the couple executed a post-nuptial agreement and property settlement. That agreement did not condition its validity on separation or divorce. In essence, each of the parties agreed to own his or her separate property free from any interest of the other, not to renounce any will of the other, and to waive a surviving spouse’s award.

In March 1977, Patricia filed for divorce from Myron and for temporary custody and support. The court awarded Patricia temporary custody, support and maintenance. On May 22, 1978, the trial court found grounds for a dissolution and orally entered a judgment of dissolution of marriage. The court continued the cause to hear evidence on questions of child custody, support, property division and maintenance. The court did not enter a written order of dissolution.

On September 29, 1978, Myron died. Myron’s will was admitted to probate and the executor appointed. Based on the executor’s sworn evidence, the court entered an order establishing heirship which stated that Patricia’s and Myron’s marriage had ended in divorce. Thereafter, Patricia, acting as surviving spouse, filed a renunciation of the will and a demand for her statutory share of Myron’s estate. The executor filed a motion to strike the renunciation on alternative grounds. The executor’s motion was based on allegations that either the couple’s marriage was dissolved prior to Myron’s death or the couple’s 1966 post-nuptial agreement prohibited Patricia from renouncing Myron’s will.

In January 1979, Patricia filed a petition in the probate proceedings for, inter alia, a surviving spouse’s and a minor dependent child’s award. In his answer to Patricia’s petition the executor denied that Patricia was a surviving spouse.

In February 1981, the court held a hearing on the executor’s motion to strike Patricia’s renunciation of the will. At that hearing, the executor moved to withdraw as an issue in the case that there was a valid judgment of dissolution. The executor’s stated reason for the motion was that there was no formal judgment of dissolution entered prior to Myron’s death. The court struck the prior dissolution ground in the executor’s motion to strike. Ultimately, the court found that based on the post-nuptial agreement Patricia had released her right to renounce. The court granted the executor’s motion to strike the renunciation and denied Patricia’s petition for a spouse’s award.

On May 18, 1981, Patricia filed a notice of appeal from the court’s order. We reversed and remanded the case in In re Estate of Na-kaerts (1982), 106 Ill. App. 3d 166, 435 N.E.2d 791. On appeal neither party argued that Patricia’s and Myron’s marriage may have been dissolved so that Patricia was not a surviving spouse. Insofar as it is relevant to the current appeal, the first appeal held only that the post-nuptial agreement not to claim a surviving spouse award or renounce was abrogated. We held, then, that despite the agreement, Patricia was entitled both to receive a surviving spouse’s allowance and to renounce Myron’s will and receive a "widow’s intestate share of the estate. The mandate was issued on May 24,1982.

Concurrent with the probate proceedings Patricia pursued the dissolution proceedings that began before Myron’s death. On March 26, 1981, Patricia filed a motion to substitute the executor as the defendant in the dissolution case. On April 16, 1981, Myron’s representative moved to dismiss the dissolution proceedings alleging that when Myron died prior to the entry of a formal judgment of dissolution, the court lost jurisdiction of the parties and the subject matter.

On May 22, 1981, the court issued a memorandum opinion in the dissolution proceedings. In that opinion the court acknowledged that the probate proceedings had proceeded on the assumption that no dissolution had occurred. Nevertheless, the court found that the dissolution action did not abate upon Myron’s death. The court further found that the court’s oral dissolution order of May 22, 1978, could be construed to dissolve the marriage. Additionally, the court found that the post-nuptial agreement did not control Patricia’s and Myron’s rights upon dissolution. The court allowed Patricia’s motion to substitute the executor as party defendant and denied the executor’s motion to dismiss for abatement. On November 12, 1981, the court entered a final order dividing Patricia’s and Myron’s marital property and disposing of all issues remaining in the dissolution. The appellate court was not informed of these post-death dissolution proceedings.

On January 21, 1983, following both the final order in the dissolution proceedings and the issuance of the mandate on the appeal in the probate proceedings, the executor filed the petition for post-judgment relief which is the subject of the current appeal. In the petition the executor prayed for the court to vacate any judgment entered pursuant to the appellate decision which allows Patricia to renounce Myron’s will and to claim a surviving spouse’s award. The petition was in two counts.

In count I the executor alleged that the dissolution court’s memorandum opinion of May 22, 1981, held that a final judgment of dissolution was entered on May 22, 1978, prior to Myron’s death. The executor further alleged that at the probate hearing on the executor’s petition to strike the renunciation, all parties assumed that Patricia and Myron were married as of Myron’s death.

Additionally, the executor alleged that based on the final judgment of the dissolution court, the judgment of the appellate court was based upon a material error of fact: that Patricia was Myron’s surviving spouse. Count I alleged lastly that had the probate or appellate court known of the error, Patricia would have been barred any relief as a surviving spouse.

In count II of the petition the executor realleged that in the probate hearing on renunciation all parties assumed that Patricia was Myron’s surviving spouse. The executor further alleged that in the dissolution proceedings, which involved the same subject matter as the probate proceedings, Patricia took the inconsistent position that her marriage to Myron was dissolved prior to Myron’s death. Finally, the executor alleged that based on her inconsistent position in the dissolution proceedings Patricia should be barred and estopped from claiming that she is Myron’s surviving spouse.

The parties argued the petition at a hearing. The court made a careful procedural review of the relevant litigation as well as a thorough review of the arguments presented. The court then denied the petition. The executor brought the instant appeal.

On appeal the executor presents the sole issue of whether the trial court erred in denying his section 2 — 1401 petition. He presents two arguments. First, he argues that because she sought and received a judgment that her marriage was dissolved at the time of Myron’s death, Patricia is barred under either the doctrine of election of remedies, estoppel, or res judicata from receiving from Myron’s estate as the surviving spouse.

Second, he argues that a section 2 — 1401 petition is an appropriate approach to relief from the inconsistent judgments in this case. Specifically, in his second argument the executor contends that the court could have granted his petition despite the appellate court’s decision allowing Patricia a surviving spouse’s award. He also contends that the issue of Patricia’s and Myron’s marital status was not res judicata upon its withdrawal from the probate proceedings. Lastly, the executor contends that the parties’ failure to litigate the marital status in the probate proceedings does not bar 2 — 1401 relief. The executor argues that this is not a case of the executor’s negligence. Rather, the executor argues, he withdrew a defense which he believed not to be meritorious based on his justifiable determination that there was no dissolution.

To warrant post-judgment relief under section 2 — 1401 the petitioner must demonstrate by a preponderance of the evidence the existence of a meritorious defense or claim, due diligence in presenting this defense or claim in the original action, and due diligence in filing the petition for relief. The petitioner must also show by a preponderance of the evidence that through no fault or negligence of his own an error of fact or a valid defense or claim was not made to appear to the trial court at the time the challenged judgment order or decree was entered. (Mitchell v. Seidler (1979), 68 Ill. App. 3d 478, 386 N.E.2d 284.) Whether to grant a section 2 — 1401 petition is within the sound discretion of the trial court. An appellate court will disturb a judgment on a petition only when the trial court has abused its discretion. Beverly Bank v. Pentagon Investment Co. (1981), 100 Ill. App. 3d 1074, 427 N.E.2d 835.

We acknowledge, as the trial court did, that denying the petition leaves intact an anomalous situation where Patricia is treated as Myron’s surviving spouse in one cause and as Myron’s former spouse following dissolution of their marriage in another. Nevertheless, we do not find that the trial court abused its discretion in denying the executor’s petition. The trial court considered arguments similar to those which the parties presented before this court. It properly concluded that the executor had not adequately shown due diligence in the original action and an absence of fault.

The executor advanced no acceptable reason why he did not originally litigate the matter of dissolution in the probate proceedings. The facts upon which the court would determine Patricia’s and Myron’s marital status at Myron’s death were fully known at the time of the original probate hearing on Patricia’s renunciation. Additionally, if the executor had not withdrawn in the probate court his argument that the parties were divorced prior to Myron’s death, the issue would have been resolved in the original probate action.

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

Affirmed.

ALLOY, P.J., and HEIPLE, J., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    THE HYSTER COMPANY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Timothy Mason, Appellant).
    Third District (Industrial Commission Division)
    No. 3—84—0125WC
    Opinion filed July 23, 1984.
    Robert L. Silberstein, of Peoria, for appellant.
    John E. Cunningham, of Burgeson, Laughlin, Cunningham & Hare, of Chicago, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The petitioner-claimant, Timothy Mason, filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) for injuries sustained while employed by the respondent, the Hyster Company. The issues raised on appeal concern only the procedural history of the claim. The following facts are relevant to these issues.

The claimant suffered an injury to his leg on May 18, 1976, when a fixture fell from one of the respondent’s machines, striking the claimant in the knee. On October 9, 1979, the arbitrator entered a decision awarding benefits for 20% loss of use of the right leg. The claimant filed a petition for review in which he requested oral argument. The respondent did not make a request for oral argument.

A hearing was held on July 31, 1980, before the Commission. After all evidence had been received, the Commissioner asked the claimant’s attorney if he would waive oral argument. The claimant’s attorney agreed to waive. Counsel for the respondent then made a request for oral argument. The verbal motion was denied. Four days later, the respondent submitted a written motion for oral argument. On September 18, 1980, the Commission entered its decision granting benefits for medical expenses and total temporary disability for 2076/v weeks. In its order the Commission stated that oral argument had been waived.

The respondent appealed from the Commission’s decision. The respondent asserted on appeal that it was denied due process of law in that it was not allowed (1) to present oral arguments, or (2) to present arguments on its right to oral arguments. The circuit court made no finding, but remanded the cause to the Commission for a hearing on the respondent’s motion for oral argument.

On remand, the full Commission found: (1) that the respondent’s motion for argument should have been granted; and (2) the circuit court’s order remanding the cause was effectively a vacating of the Commission’s original award of benefits. The Commission therefore entered a new decision (hereafter second decision) in which the claimant was awarded temporary total disability for 65&h weeks and permanent partial disability of 71/2% of the use of the right leg.

The claimant appealed from the second decision. The circuit court found that the Commission had the authority to consider all pending matters during its hearing on remand. The circuit court further found that the Commission had ruled correctly in its second decision on all issues of law and on the claimant’s claim under the Act. It is from this order that the claimant now appeals.

The claimant asserts on appeal that: (1) the respondent’s motion for oral argument was not timely; (2) the Commission’s first decision was not set aside by the circuit court’s order of remandment; (3) the Commission had no authority to enter a new award following remandment; and (4) the respondent was bound by its earlier position on the circuit court’s order of remandment.

The claimant argues that the respondent’s motion for oral argument was not timely. As noted above, the respondent first requested oral argument during the hearing before the Commission. A written motion was submitted four days after the hearing.

Requests for oral argument are governed by section 19(e) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(e)), which provides, in relevant part:

“The taking of testimony on such hearing may be had before any member of the Commission and in the event either of the parties may desire an argument before others of the Commission, such argument may be had upon written demand therefor filed with the Commission at least 5 days before the date of the hearing ***.” (Emphasis added.)

The claimant argues that, because the Commission’s authority is statutory, the language of section 19(e) must be strictly construed.

The respondent argues that the statute requires only that one party request argument, and that, in the event the requesting party subsequently waives argument, the nonrequesting party is entitled to rely upon the original request. The respondent bases his argument upon analogy to Supreme Court Rule 352 (87 Ill. 2d R. 352) and section 2 — 1105 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1105).

Rule 352 governs requests for oral argument before the Illinois Supreme Court. Rule 352(a) provides that where a party requesting oral argument subsequently waives argument, any party who has filed a brief without requesting oral argument may then request it.

Section 2 — 1105 relates to the waiver of juries in civil cases. That section provides that if one party demands and then waives trial by jury, the opposing party may make a prompt jury demand.

The respondent asserts that section 19(e) should be construed consistent with Rule 352 and section 2 — 1105. However, both Rule 352 and section 2 — 1105 clearly set forth a procedure whereby the nonre-questing party may make a subsequent request. Section 19(e) provides no such procedure. It requires that a written request must be filed at least five days before the date of hearing. Statutory language which is certain and unambiguous must be enforced as enacted. (Thorton v. Mono Manufacturing Co. v. Mateika (1981), 99 Ill. App. 3d 722, 425 N.E.2d 522.) Courts are not permitted to add words to change the meaning of a statute. (Harvey Firemen’s Association v. City of Harvey (1979), 75 Ill. 2d 358, 389 N.E.2d 151.) To interpret section 19(e) as the respondent suggests would be to rewrite the statutory procedures established by the legislature when enacting the Workmen’s Compensation Act. This we decline to do.

We, therefore, find that the respondent’s request for oral argument was, on its face, untimely and not in compliance with section 19(e). Accordingly, the circuit court erred in remanding the cause to the Commission for a hearing on the issue of oral arguments.

Though the claimant raises several additional issues on appeal, because of our resolution of the issue of timeliness under section 19(e) is dispositive, we do not address these issues.

Therefore, the judgment of the circuit court of Peoria County affirming the Commission’s decision of March 17, 1982, is reversed. The decision of the Commission of September 18, 1980, is conformed.

Circuit court reversed.

SEIDENFELD, P.J., McNAMARA, WEBBER, and KASSER-MAN, JJ., concur.


author: JUSTICE McGLOON

text:
    EDWARD MALEK III, a Minor, by his Mother and Next Friend, Sherry Malek, Plaintiff-Appellant, v. LEDERLE LABORATORIES, a Division of American Cyanamid, Defendant-Appellee.
    First District (1st Division)
    No. 83—933
    Opinion filed June 25, 1984.
    Anthony M. Colantoni, of McDowell and Colantoni, Ltd., of Chicago, for appellant.
    Francis D. Morrissey, Thomas F. Bridgman, Miles J. Seyk, and J. Kent Mathewson, all of Baker & McKenzie, of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Sherry Malek, as mother and next friend of minor plaintiff, Edward Malek III, brought this personal injury action against defendant Lederle Laboratories (Lederle). Plaintiff’s two-count complaint sounding in strict liability and negligence alleged that on December 5, 1978, Edward Malek was vaccinated with a diptheria-tetanus-pertussis (DTP) vaccine manufactured and marketed by defendant under the brand name Tri-Immunol. He was four months old at the time. Within five to seven hours after receiving the vaccine, Edward Malek experienced convulsions and seizures which left him permanently retarded. Count I of the complaint alleged that the Tri-Immunol vaccine was unreasonably dangerous in that it was not accompanied by adequate warnings or directions concerning the proper use of the vaccine. Count II alleged that defendant was negligent in failing to provide adequate warnings with the vaccine and in failing to properly test the vaccine. Judgment was entered on the jury verdict in favor of defendant.

On appeal, plaintiff contends that the trial court abused its discretion in refusing to give a plaintiff-tendered jury instruction.

We affirm.

Sixteen witnesses called in this matter testified during a 21k week trial. However, we set forth only the facts relevant to our disposition of this appeal. Substantial evidence regarding defendant’s compliance with governmental regulations and licensing requirements was presented at trial. Several witnesses testified on behalf of defendant as to the procedures involved in obtaining licensing of the DTP vaccine. The Federal scheme as it relates to immunization practices was also described to the jury. Defendant established that it has been manufacturing and distributing the DTP vaccine since 1943, pursuant to a license it received from the Federal government. Before a particular lot of the vaccine can be released for distribution, it must be approved by the Bureau of Biologies (Bureau), a branch of the Food and Drug Administration (FDA). The Bureau is also responsible for licensing and approval of all pharmaceutical products and package inserts. Accordingly, the package insert which accompanied Tri-Immunol, containing information concerning contraindications, precautions and probable reactions to the vaccine, was approved by the Bureau. The evidence further established that in order to receive a license to manufacture and distribute its vaccine, defendant was required to present information concerning the effectiveness and safety of the vaccine to the Bureau.

During the jury instructions conference, counsel representing plaintiff tendered instruction No. 23. That instruction, which is not an Illinois Pattern Jury Instruction, read as follows:

“If you decide that the plaintiff has proved all the propositions of either count, then it is not a defense that the defendant complied with the Food and Drug Administration regulations.”

In support of the instruction, plaintiff argued that it was a fair statement of the law necessary in light of defendant’s evidence regarding governmental licensing and compliance with Federal standards. Defense counsel represented to the court that he would not argue during closing arguments, that compliance with FDA regulations was a defense to liability. Based on its representation, the trial court refused the instruction.

Plaintiff’s sole contention on appeal is that the trial court’s refusal to instruct the jury in accordance with plaintiff’s instruction No. 23 constitutes reversible error.

It is well established that every litigant is entitled to have the jury instructed as to the law governing the case. (Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 394 N.E.2d 1273.) The instructions must be sufficiently clear so as not to confuse or misled the jury. (Graves v. Wornson (1978), 56 Ill. App. 3d 873, 371 N.E.2d 692.) Even if an instruction correctly states the law, it must be refused if it would mislead the jury. (Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 394 N.E.2d 1273; Ryan v. Fleischman (1978), 64 Ill. App. 3d 75, 380 N.E.2d 1099.) Jury instructions should not overemphasize any particular matter. Ryan v. Monson (1961), 33 Ill. App. 2d 406, 179 N.E.2d 449.

The trial court has a great deal of discretion as to the form of jury instructions. (Miceikis v. Field (1976), 37 Ill. App. 3d 763, 347 N.E.2d 320.) Moreover, a reviewing court will not reverse a trial court for erroneously refusing an instruction unless prejudice has resulted. Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 394 N.E.2d 1273.

It is equally well settled that defendant is entitled to present evidence of compliance with Federal regulations. (Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534; Moehle v. Chrysler Motors Cory. (1982), 93 Ill. 2d 299, 443 N.E.2d 575.) Although such evidence is relevant for the jury to consider in determining whether a product is unreasonably dangerous (Hatfield v. Sandoz-Wander (1984), 124 Ill. App. 3d 780), it is not conclusive as to that issue. (Moehle v. Chrysler Motors Cory. (1982), 93 Ill. 2d 299, 443 N.E.2d 575; Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534.) Rather, it is merely a factor to be considered by the jury in reaching its decision. (Turney v. Ford Motor Co. (1981), 94 Ill. App. 3d 678, 418 N.E.2d 1079.) Plaintiff argues, however, that without instruction No. 23, the jury was free to place undue emphasis on the evidence of governmental licensing. This is of special concern where evidence of compliance relates to regulations or standards that are grossly minimal or antiquated. Plaintiff’s argument was addressed and rejected by the Illinois Supreme Court in Moehle. After noting that plaintiffs were free to dispute the importance of safety standard evidence, the court concluded that the jury was capable of giving proper weight to this type of evidence. (Moehle v. Chrysler Motors Cory. (1982), 93 Ill. 2d 299, 305.) This belief was recently reiterated in Hatfield, wherein the court reasoned that plaintiffs were able to attack the value to be ascribed to FDA approval during their closing argument.

In the instant case, the jury heard extensive evidence concerning defendant’s compliance with Federal regulations and the license granted to defendant by the government for the manufacture of Tri-Immunol. As was contemplated by the court in Moehle, plaintiff was free to dispute the importance of defendant’s evidence. Plaintiff’s attorney had the opportunity to cross-examine defendant’s witnesses concerning immunization practices in the United States as well as the procedure followed by the FDA regarding approval of the vaccine and package instructions. He also had the opportunity, as did plaintiff’s attorney in Hatfield, to suggest to the jury, during closing argument, the weight to be attributed to FDA approval. Moreover, consistent with his agreement, defense counsel refrained from urging the jury to find in favor of defendant solely because of compliance with Federal regulations and governmental licensing standards. Therefore, we believe the jury was able to properly evaluate the importance of the compliance evidence and weigh it with all the other evidence in the record. (Moehle v. Chrysler Motor's Cory. (1982), 93 Ill. 2d 299, 443 N.E.2d 575.) Additionally, the tendered instruction might have misled the jury by inferring that the compliance evidence should be considered separately from all other evidence.

Accordingly, we find that the trial court did not abuse its discretion in refusing plaintiff’s instruction. (Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 394 N.E.2d 1273.) For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

BUCKLEY, P.J., and GOLDBERG, J., concur.


author: JUSTICE JOHNSON

text:
    LORENZO BECK, Plaintiff-Appellant, v. ROSSI BROTHERS et al., Defendants-Appellees.
    First District (4th Division)
    No. 83—2045
    Opinion filed June 28, 1984.
    Albert F. Hofeld, Ltd., of Chicago (Howard Schaffner, of counsel), for appellant.
    Judge & Knight, Ltd., of Park Ridge (Jay S. Judge and Kristine A. Karlin, of counsel), for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Lorenzo Beck, appeals an order of the trial court dismissing his complaint for failure to state a cause of action. He raises the following issues for review: (1) whether the landlord’s knowledge of prior criminal activity upon its premises creates a duty to protect tenants from similar subsequent criminal acts, and (2) whether a landlord’s negligent performance of maintenance work, causing an outside entrance door, which fully closed prior to the work, to remain ajar and incapable of being fvdly closed after the work, gives rise to a cause of action where illegal entry is made through that door, resulting in criminal attack upon the plaintiff.

We affirm.

On December 27, 1982, plaintiff filed a complaint against Western National Bank of Cicero, Rossi Brothers Properties & Co., and Carl Rossi. Western National Bank was the trustee of the property owned by the other defendants and was eventually dismissed as a party. In the complaint, plaintiff alleged that on October 15, 1982, defendants owned and managed an apartment building at 6940 South Clyde Avenue in Chicago. Plaintiff was a tenant in the building. While present in a common area, he was injured as a result of shots fired at him by trespassers. Plaintiff claimed that defendants were negligent in failing to install and maintain locks on doors used for entry to the premises, in failing to maintain the doors so that the locks could be engaged, and in failing to provide proper security devices to safeguard the premises from trespassers. As a proximate result of defendants’ negligence, plaintiff suffered damages of $200,000.

On May 11, 1983, plaintiff filed his first amended complaint in which he further alleged that prior to October 15, 1982, defendants caused a lock to be placed upon an entrance door to the building and also caused work to be performed upon the door frame of the entrance. As a result of this work, the door did not close completely but remained ajar. This condition was apparent from outside the building. Prior to the repair work, the door closed completely. Prior to October 15, 1982, more than one trespasser had entered the building and committed crimes therein. This fact was known or should have been known by defendants.

On July 27, 1983, the trial court granted defendants’ motion to strike and dismiss plaintiff’s amended complaint with prejudice. Plaintiff appeals.

At issue in this case is whether plaintiff’s amended complaint states a cause of action. In Carrigan v. New World Enterprises, Ltd. (1983), 112 Ill. App. 3d 970, 446 N.E.2d 270, the court addressed the issue of a landlord’s duty to protect persons on his premises against criminal activities of third persons. In Carrigan, plaintiff’s action was against her landlord and its agents for injuries she received from being raped, which she alleged resulted from defendants’ failure to repair a burglar alarm located in her apartment. The appellate court reversed a jury award of $125,000 in compensatory damages and $50,000 in punitive damages.

After extensive review of case law (including most of the same cases cited by plaintiff in the instant case), the Carrigan court concluded that a limited duty has been imposed on the landlord in certain situations. (112 Ill. App. 3d 970, 977.) But this duty arises from contractual obligations and not from a voluntary undertaking to protect tenants from harm from third persons or to provide security to certain areas. (112 Ill. App. 3d 970, 975.) The court held that where the landlord failed to repair a burglar alarm, that contractual breach would not entail damages for harm caused to plaintiff by the intervening criminal act of a third party. (112 Ill. App. 3d 970, 978.) The court also held that the complaint was fatally defective in its allegation that the faulty burglar alarm proximately caused plaintiff’s injuries. To accept this theory, it would be necessary to engage in speculation and conjecture. Where precise cause of plaintiff’s loss is left to conjecture, then plaintiff cannot recover and evidence should not be submitted to the jury. 112 Ill. App. 3d 970, 978.

Plaintiff also cites Mims v. New York Life Insurance Co. (1971), 133 Ill. App. 2d 283, 273 N.E.2d 186, in support of his position that his complaint states a cause of action. In Mims, plaintiffs suffered a loss when defendant’s employee left their apartment door open. In our opinion, Mims fits into the category of cases described above in which a duty arose from a contractual obligation rather than a voluntary undertaking to protect tenants. In Mims, defendant’s employee, having unlocked plaintiffs’ door to inspect the premises, had a duty to lock the door.

In accordance with Carrigan, we hold that plaintiff’s complaint was properly dismissed for failure to state a cause of action.

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

Affirmed.

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


author: JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM McNEIL, a/k/a Otis McNeil, Defendant-Appellant.
    First District (2nd Division)
    No. 82—1752
    Opinion filed June 26, 1984.

      Steven Clark and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lawrence R. Stasica, and Mary Ann Sullivan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

Following a bench trial, defendant, William McNeil, was found guilty of two counts of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2), two counts of unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 3), two counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, pars. 33A — 2, 10 — 3), one count of home invasion (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11(a)(1)), and one count of felonious unlawful use of weapons (Ill. Rev. Stat. 1979, ch. 38, pars. 24 — l(a)(10), (b)). A sentence of natural life imprisonment was imposed pursuant to the habitual criminal act. Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1.

Two grounds for reversal are presented by defendant: (1) that section 33B — 1 of the Criminal Code of 1961 is violative of the United States and Illinois constitutions; and (2) that the judgment of conviction on the two armed violence counts, which was predicated on the offense of unlawful restraint, must be vacated in accordance with Peo ple v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512. As the issue of reasonable doubt was not raised, only a brief summary of the evidence is necessary.

On the night of October 12, 1981, defendant and two other men forcibly entered Gilbert Midina’s basement apartment, located in Chicago, after having falsely identified themselves as police officers. Mi-dina and his brother-in-law, Ricky Cruz, were robbed at gunpoint, bound and gagged. After the three men left the apartment, Midina freed himself, went to a neighbor’s house and notified the police.

Soon thereafter, Officers Kruk and Lenihan of the Chicago police department, who were on patrol in the 10th District, curbed a vehicle with three occupants for having failed to stop at a stop sign. While talking with the driver, Officer Kruk observed defendant exit the car from the passenger side, walk toward the front, crouch down and throw an object underneath the vehicle. This object, a .38-caliber handgun, was immediately recovered by the officer. Defendant was then placed under arrest for the unlawful use of a weapon, handcuffed and transported to the 10th District station. A subsequent search of defendant’s person and the automobile revealed a Chicago police department badge, jewelry, cameras, telephones, a television set, and a wallet containing Midina’s identification. Both Midina and Cruz later identified defendant in a lineup conducted at the 10th District station.

Defendant was thereupon charged with two counts of armed robbery, two counts of unlawful restraint, two counts of armed violence, one count of home invasion and one count of felonious unlawful use of weapons. Following a bench trial, he was found guilty as charged. Due to defendant’s previous convictions in 1966 and 1979 for armed robbery, the trial court ruled that he was a habitual criminal and, accordingly, sentenced defendant to a term of natural life imprisonment.

Defendant now appeals from the judgment of conviction on the two armed violence counts, and requests that this court vacate the sentencing order and remand the cause to the circuit court for re-sentencing.

I

On June 29, 1982, the trial court found defendant to be a habitual criminal in light of his “tragic history of being a professional armed robber.” As a result, a sentence of natural life imprisonment was imposed pursuant to the habitual criminal act which provided, in pertinent part, that:

“(a) Every person who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony or murder, and is thereafter convicted of a Class X felony or murder, committed after the 2 prior convictions, shall be adjudged an habitual criminal.
(e) Except when the death penalty is imposed, anyone adjudged an habitual criminal shall be sentenced to life imprisonment.” Ill. Rev. Stat. 1981, ch. 38, pars. 33B — 1(a), (e).

Defendant contests the constitutional validity of this legislative enactment.

A

At the outset, we note that a strong presumption of constitutionality attaches to a statute. (People v. La Pointe (1981), 88 Ill. 2d 482, 499, 431 N.E.2d 344.) The burden rests upon the party attacking a particular law to show that it is clearly arbitrary, unreasonable and has no foundation in the State’s police power. (People v. Copeland (1980), 92 Ill. App. 3d 475, 479-80, 415 N.E.2d 1173.) The paramount consideration in construing a statute is to give effect to the legislative intent. (People v. Beam (1979), 74 Ill. 2d 240, 242, 384 N.E.2d 1315.) “In determining legislative intent, a court may examine not only the language used, but also the reason for the law and the evil to be remedied, as well as the objects and purposes of the statute.” People v. McPherson (1978), 65 Ill. App. 3d 772, 774, 382 N.E.2d 858.

Defendant first argues that it is the prosecutor who, by filing a petition for the imposition of natural life imprisonment, actually determines the sentence to be imposed. We disagree. By filing the petition, the State merely initiates proceedings under the habitual criminal act. It is the legislature which, in exercising its recognized power to fix punishments for crimes, has necessarily limited a trial judge’s discretion as to the imposition of a life sentence pursuant to the habitual criminal act. We regard such a limitation to be constitutionally permissible since the Illinois Supreme Court has already held that “[t]he legislature may authorize the court to exercise broad discretion in the imposition of sentences by providing for the fixing of sentences within prescribed minimum and maximum years. Or the legislature may restrict the exercise of judicial discretion in sentencing, such as by providing for mandatory sentences.” (Emphasis added.) People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 549, 397 N.E.2d 809, cert, denied sub norm,. Brown v. Illinois (1980), 445 U.S. 953, 63 L. Ed. 2d 788, 100 S. Ct. 1603.

This judicial deference to legislative determinations of punishment has been further evinced in the recent case of People v. Taylor (1984), 102 Ill. 2d 201. In Taylor, the supreme court held that the provision in section 5 — 8—1 (a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, eh. 38, par. 1005 — 8—1(a)(1)(c)) for a mandatory sentence of natural life imprisonment upon conviction of murdering more than one victim, did not unconstitutionally infringe upon the judicial power. People v. Taylor (1984), 102 Ill. 2d 201, 209.

Defendant nonetheless claims that the habitual criminal act is constitutionally defective in that it preempts the sentencing function of the trial court by delegating to the prosecution the power to choose which defendants shall be subject to its terms. However, this court has recently held that the judicial function of sentencing is not preempted by the State, for the provisions of the habitual criminal act apply to “every person” meeting its criteria. (People v. Tobias (1984), 125 Ill. App. 3d 234, 240; People v. Withers (1983), 115 Ill. App. 3d 1077, 1088, 450 N.E.2d 1323, cert, denied (1984), 465 U.S. 1052, 79 L. Ed. 2d 726, 104 S. Ct. 1332.) As a consequence, the act places no discretion in the prosecution to determine which defendants qualify for a term of life imprisonment; rather, precise guidelines are set forth to enable the trial judge to determine the applicability of the recidivist statute.

B

Next, defendant contends that the mandatory imposition of a life sentence under the habitual criminal act is constitutionally invalid since it allegedly precludes consideration of the seriousness of the offense, as well as the rehabilitative potential of the offender.

It is argued that Solem v. Helm (1983), 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001, is dispositive of this issue. Solem, however, is readily distinguishable from the case at bar in that the defendant there was sentenced to a term of life imprisonment under a South Dakota recidivist statute because of his conviction for uttering a “no account” check for $100, coupled with his six prior nonviolent felony convictions. The Supreme Court concluded that defendant’s sentence was “significantly disproportionate to his crime, and is therefore prohibited by the Eighth Amendment.” Solem v. Helm (1983), 463 U.S. 277, 303, 77 L. Ed. 2d 637, 658, 103 S. Ct. 3001, 3016.

To the contrary, the applicability of the habitual criminal act here was premised on defendant’s repeated convictions for armed robbery — a violent offense against the person, characterized as a Class X felony. (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(b).) We therefore do not consider Solem binding; the imposition of life imprisonment is not, in our opinion, constitutionally disproportionate with successive armed robberies committed over a period of 16 years.

In addition, as we noted in Withers, our supreme court has held that since there is prior consideration of mitigating circumstances in the two previous adjudications, the “rehabilitative purposes of the system are not completely foresaken, but after the commission by an individual of a third serious offense, the interest of society in being protected from criminal conduct is given additional consideration.” (People ex rel. Carey v. Chrastka (1980), 83 Ill. 2d 67, 80, 413 N.E.2d 1269.) This reasoning is in accord with the Taylor decision, wherein the supreme court concluded that “[t]he rehabilitative objective of [Ill. Const. 1970, art I, sec. 11] should not and does not prevent the legislature from fixing mandatory minimum penalties where it has been determined that no set of mitigating circumstances could allow a proper penalty of less than natural life ***.” People v. Taylor (1984), 102 Ill. 2d 201, 206.

Regarding the instant matter, defendant’s predicate armed robbery convictions in 1966 and 1979 necessitated consideration of his rehabilitative potential during the attendant sentencing hearings. The constitutional mandate of rehabilitative recognition had thus been fulfilled. (People v. Tobias (1984), 125 Ill. App. 3d 234, 241.) In spite of previous opportunities to once again acquire useful membership in our society, defendant has continually manifested an egregious disregard for the rights of other citizens. His permanent removal from society was thereby warranted as a prevention of inevitable, violent dereliction.

C

Defendant maintains that the habitual criminal act is violative of the double jeopardy and ex post facto provisions of the United States and Illinois constitutions. Specifically, it is argued that defendant has been punished a second time for each of his previous armed robbery convictions, and that he has been punished for conduct which occurred prior to February 1, 1978, the effective date of the habitual criminal act. These arguments merit brief attention.

First, defendant was not punished twice for the same offense, for it is well settled that “[t]he punishment is for the new crime only, but the penalty is made heavier by statute because the defendant is an habitual criminal.” (Emphasis added.) People v. Lawrence (1945), 390 Ill. 499, 504, 61 N.E.2d 361, cert, denied (1945), 326 U.S. 731, 90 L. Ed. 435, 66 S. Ct. 38.

Second, the Illinois Supreme Court has also declared that “the Habitual Criminal Act does not create a new and independent crime. It merely prescribes circumstances wherein one found guilty of a specific crime may be more severely penalized because of a previous conviction.” (People v. Lawrence (1945), 390 Ill. 499, 504, 61 N.E.2d 361.) Here, the trial court allowed into evidence the certified copies of defendant’s prior armed robbery convictions for the sole purpose of establishing matters in aggravation in order to support the rendition of a natural life sentence. This limited use of prior adjudications was therefore not, in our opinion, violative of ex post facto prohibitions. See People ex rel. Carey v. Chrastka (1980), 83 Ill. 2d 67, 77-78, 412 N.E.2d 1269.

D

Defendant contends that the habitual criminal act is unconstitutional in that it does not require proof beyond a reasonable doubt of “THE EXITENCE [sic] OF THOSE FACTS REQUIRING THE ENHANCED PENALTY.” This contention is devoid of merit since the “facts” which trigger application of section 33B — 1 are two prior convictions, as opposed to charges, of a Class X felony or murder followed by a third conviction, as opposed to charge, of a class X felony or murder. (See People v. Mason (1983), 119 Ill. App. 3d 516, 521-22, 456 N.E.2d 864.) Defendant nonetheless asserts that the State failed to satisfy subsection (d)(4) of the habitual criminal act, which requires the second predicate offense to have been committed after the first predicate conviction.

Following defendant’s convictions for the instant offenses, the State filed a verified petition for the imposition of life imprisonment which indicated that defendant was charged with armed robbery in “Case 65 — 2523” for an offense that he committed on or about September 11, 1965. On April 28, 1966, a jury found defendant guilty as charged, and judgment was accordingly entered against him. Defendant was again charged with armed robbery in “Case 75 — 5833” for an offense that he committed on or about April 16, 1975; a plea of guilty to this second offense was entered on September 19,1979.

During the sentencing hearing held in connection with the instant offenses, the State produced certified copies of these two previous armed robbery convictions. Defendant, however, refused to acknowledge their authenticity. Thereupon, the State produced witnesses in support of the questioned exhibits. A commander of the Chicago police department testified that, with respect to the 1966 conviction, he apprehended defendant for the armed robbery of a furrier. It was further disclosed that defendant had in fact been found guilty as charged after a trial by jury. An assistant State’s Attorney then corroborated this testimony by stating that he had prosecuted defendant in the 1966 case, and that defendant was subsequently found guilty of armed robbery and received a sentence of 15 to 25 years’ imprisonment. Regarding the second predicate offense, another assistant State’s Attorney testified that on September 19, 1979, defendant withdrew his plea of not guilty, entered a plea of guilty to the commission of the 1975 armed robbery, and received a sentence of 10 years’ imprisonment. When the certified copies of these two previous convictions were offered into evidence, defense counsel did not contest their authenticity; rather, he stated that he was “just entering a general objection.” The proffered exhibits were then ruled admissible.

The introduction of such documentary evidence, coupled with the testimonial evidence presented in support thereof, justified the trial court’s finding that defendant was, in fact, convicted of the two previous armed robberies. We note that the second of these two predicate offenses could not have been committed before the first armed robbery conviction in 1966. This is because, under the Criminal Code of 1961, the 1975 prosecution for the second armed robbery had to be commenced within three years of its commission. Ill. Rev. Stat. 1973, ch. 38, par. 3 — 5(b).

In essence, the habitual criminal act is a constitutional exercise of this State’s police power to protect our society from habitually violent and heinous criminals. Since defendant’s recidivation to violent crimes from 1966 through 1981 satisfied the statutory prerequisites for invocation of the act, we conclude that the trial court’s imposition of a term of life imprisonment was thereby warranted.

II

The final question for resolution is whether defendant’s convictions on the two armed violence counts, which were both predicated on the offense of unlawful restraint, must be vacated under the authority of People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512.

In Wisslead, the supreme court affirmed the circuit court’s dismissal of an armed violence charge, holding that the armed violence statute, as applied to the unlawful restraint statute, was violative of the constitutional assurances of due process and proportionate penalties. The State nonetheless urges that the reasoning in Wisslead be rejected, and that the “well-reasoned and practical” dissent to the majority opinion be adopted instead.

It is fundamental to our judicial system that “[wjhere the supreme court has declared the law on any point, it alone can overrule or modify its previous opinion, the lower judicial tribunal being bound to follow such decision in similar cases.” (Super Liquors, Inc. v. Illinois Liquor Control Com. (1983), 113 Ill. App. 3d 229, 232, 446 N.E.2d 945, appeal denied (1983), 94 Ill. 2d 558.) Since it is solely the supreme court’s prerogative to reconsider the underlying rationale in Wisslead, we therefore reject the State’s arguments and vacate defendant’s convictions for armed violence. (See People v. Alexander (1983), 118 Ill. App. 3d 33, 38, 454 N.E.2d 691, appeal denied (1984), 96 HI. 2d 568.) The vacation of these two convictions does not necessitate resentencing defendant on the remaining convictions, for the imposition of life imprisonment was premised on his instant as well as prior convictions for armed robbery.

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; vacated in part.

HARTMAN, P.J. and PERLIN, J., concur.


author: JUSTICE CAMPBELL

text:
    PROCESS COLOR PLATE COMPANY, INC., et al., Plaintiffs, v. CHICAGO URBAN TRANSPORTATION DISTRICT et al., Defendants-Appellee (Keck, Mahin & Cate, Petitioner-Appellant).
    First District (1st Division)
    No. 83—900
    Opinion filed June 25, 1984.

      Keck, Mahin & Cate, of Chicago, pro se (John M. Betts, Donald G. Mu-lack, and Philip V. Martino, of counsel), for appellant.
    Isham, Lincoln & Beale, of Chicago (A. Daniel Feldman, David Narefsky, and Charles J. Risch, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Petitioner, Keck, Mahin & Cate, a law firm, appeals from a trial court order denying the enforcement of petitioner’s attorney’s lien served upon the Chicago Urban Transportation District, a municipal corporation. On appeal petitioner raises the following issues: (1) whether the district interfered with contracts between petitioner and its clients; (2) whether the district’s act of settling directly with petitioner’s clients rendered the district liable for petitioner’s attorney fees; and (3) whether petitioner’s attorney’s lien is enforceable against the assets of a municipal corporation.

Initially we note that upon motion of the Chicago Transit Authority, a municipal corporation, the Chicago Urban Transportation District, which was abolished as of January 1, 1984, pursuant to Public Act 82 — 1048 (Ill. Rev. Stat. 1983, ch. 1112/3, par. 519), was dismissed as defendant-appellee in this action and the Chicago Transit Authority (hereinafter district) substituted in its stead.

The record reveals that in 1970, the district was created to levy taxes on property within the designated district and to use those taxes to operate mass transit facilities within the district. The district collected $16,448,912 from January 1, 1974, to December 31, 1979. During the years from 1975 to 1980, petitioner was retained by numerous taxpayers within the district to file objections to the taxes levied by the district and to obtain refunds of approximately $3.4 million paid by those clients. According to petitioner, the clients each agreed to pay petitioner a sum equal to 20% of the amount recovered by petitioner through suit or settlement. Pursuant to its employment, petitioner filed 51 separate lawsuits against the district. On July 3, 1979, a class-action lawsuit, also seeking to obtain refunds of taxes, was filed against the district. The class action was filed on behalf of all taxpayers with the district including petitioner’s clients. Trial of the class-action lawsuit was conducted from September 1981 to February 1982. Following the trial, but before judgment was entered, counsel for the district and for the class plaintiffs conducted a series of settlement conferences. On April 1, 1982, an agreed order was entered providing for the settlement of the class-action suit. The settlement provided for the establishment of a $6.45 million settlement fund from which all fees and costs incurred in the action would be paid. Petitioner’s clients were entitled to a total of $1.7 million of the settlement fund in accordance with the amount of taxes they had paid. On May 25, 1982, the court approved the mailing and publication of notice of the proposed settlement to class members. The notice provided that any class member wishing to receive a share of the settlement fund was required to file a statement of claim no later than November 1, 1982. The statement mailed with the proposed settlement notice contained the following release:

“RELEASE
Conditioned upon the proposed settlement becoming effective, the undersigned hereby releases and discharges all defendants in the above entitled action and all other persons described in the accompanying notice from any and all claims the undersigned may have arising out of or relating to any of the claims alleged in the lawsuit, including but not limited to claims against the CUTD in any tax objection the undersigned may have made or may make.”

In response to the notice, 56 requests were received for exclusion from the settlement. None of the petitioner’s clients chose to be excluded. On November 3 and 4, 1982, petitioner served the district with its notice of attorney’s lien and on November 22, 1982, the district filed a petition to have the lien adjudicated. Subsequently, on December 23, 1982, petitioner filed a petition to enforce its attorney’s lien, alleging that the district refused to honor or recognize petitioner’s lien in the amount of $440,000, or 20% of the portion of the settlement fund to which petitioner’s clients were entitled. Petitioner asserted that the lien should be attached directly to the assets of the district and not to either the $6.45 million total settlement fund or to the $1.7 million portion of the fund to which petitioner’s clients were entitled.

We first address the issue whether the district interfered with employment contracts between petitioner and petitioner’s clients by creating a climate which made it impossible for petitioner to recover any fees for the 51 tax rate protest actions petitioner filed against the district. Petitioner claims that with knowledge of petitioner’s tax protest actions, the district nevertheless negotiated, executed and obtained court approval of a settlement in the class-action suit without providing for the satisfaction of petitioner’s attorney fees. Petitioner asserts that the district is liable for petitioner’s attorney fees under “An Act creating attorney’s lien ***” (Ill. Rev. Stat. 1981, ch. 13, par. 14), because the district was a party to the structuring of the settlement. Petitioner maintains that the act is controlling in this case because it provides for the attachment of a lien “to any verdict, judgment or order entered and to any money or property which may be recovered, on account of such suits ***.” (Ill. Rev. Stat. 1981, ch. 13, par. 14.) The statute, which was intended to give attorneys a lien which would protect them against any settlements that might be made, would be given effect regardless of whether a suit had been commenced, was pending or had been finally determined. (McArdle v. Great American Indemnity Co. (1942), 314 Ill. App. 455, 41 N.E.2d 964.) Moreover, petitioner claims that as here, where a defendant is properly served with notice of lien and then acts in derogation of the right of the attorney-lienor to reach the proceeds of the litigation or settlement, defendant becomes directly liable to the attorney. (Case v. Emerson-Brantingham Co. (1915), 269 Ill. 94, 109 N.E. 671; Bennett v. Chicago & Eastern Illinois R.R. Co. (1945), 327 Ill. App. 76, 63 N.E.2d 527.) Accordingly, the district is liable for petitioner’s fees.

This case proceeded as a class-action suit the primary purpose of which is to avoid a multiplicity of lawsuits. To advance this purpose, courts of chancery have broad powers to adjudicate all of the claims of the parties before it which arise out of the subject matter of the class-action lawsuit. (Alter v. Moellenkamp (1961), 23 Ill. 2d 506, 179 N.E .2d 4.) We cannot envision that the legislature intended that an attorney, with full awareness of a client’s voluntary participation in the settlement of a class action involving the same matter claimed in that attorney’s lien, and who has the opportunity to assert the statutory lien against the settlement proceeds going to that client and thereby achieving the purpose and effect of the act, should be free to ignore the benefits and proceeds flowing to the client and claim the benefits of the lien in another unrelated fund. The trial court avoided the possible duplication of fees problem in denying petitioner’s lien and we think the ruling of the trial court should be given effect and that “An Act creating attorney’s lien ***” is not controlling in this class action. (See Saltiel v. Olsen (1981), 85 Ill. 2d 484, 426 N.E.2d 1204.) Moreover, under the facts and circumstances of this case, we see no reason to reach a different conclusion based on petitioner’s assertion of prior contractual rights, particularly where petitioner’s claim is in conflict with promoting the ends of the class action. The attorney’s lien cannot be fairly characterized as unrestricted grants which may be used for whatever purpose desired in a class action.

Petitioner’s further claim that the district interfered with petitioner’s rights under the statute ignores the fact that the settlement was entered into with court approval, was deemed to be in the best interest of all of the members of the class, including petitioner’s clients, was approved by the court with knowledge of petitioner’s lien and that the overriding purpose of the settlement was to benefit class members, not to interfere with petitioner’s attorney’s lien. Furthermore, although the settlement order was entered on April 1, 1982, followed by the mailing and notice to the class members on May 25, 1982, it was not until November 3, 1982, that petitioner served notice of the lien on the district. At that time, the district brought the lien to the attention of the trial court, seeking to have the lien adjudicated. Similar actions for adjudicating the lienor’s rights were approved by our supreme court in McCallum v. Baltimore & Ohio R.R. Co. (1942), 379 Ill. 60, 39 N.E.2d 340. On that basis, we find that the district’s actions with regard to the lien were neither improper nor in derogation of any right of the petitioner. Additionally, because petitioner elected not to file any claim for fees against the settlement fund which was created for the purpose of satisfying such claims for fees, petitioner, by its voluntary action, was thereby foreclosed from having its claim for fees adjudicated by the trial court. The trial court was not obliged to create a second fund for the purpose of satisfying any purported attorney’s lien merely because of petitioner’s assertion of prior contractual rights. We therefore reject the claim that a class-action settlement may be used as a basis to support a claim of interference with prior attorney-client agreements as asserted by petitioner.

It is also contended that the district acted “at its peril” in settling directly with petitioner’s clients and thus is liable to pay petitioner’s attorney’s fees. Petitioner relies on Bennett v. Chicago & Eastern Illinois R.R. Co. (1945), 327 Ill. App. 76, 63 N.E.2d 527, in which an attorney recovered fees from a successor attorney who, with notice of the first attorney’s lien, nonetheless chose to settle directly with the client. Petitioner also cites McCallum v. Baltimore & Ohio R.R. Co. (1942), 379 Ill. 60, 39 N.E.2d 340, in support of its contention. In Mc-Callum, the court found that an attorney’s lien could be enforced only against a defendant who had destroyed or dissipated the property to which the lien would have attached. Petitioner claims that the district made it impossible for petitioner to collect fees when the district, with knowledge of petitioner’s lien, negotiated a settlement providing for payment of fees only to class counsel. The district’s actions, petitioner asserts, destroyed the possibility of attaching a lien to any recovery petitioner’s clients might have obtained.

At the outset we note that in both the Bennett and McCallum cases, the lienee acted in derogation of the lienor’s rights following notice of the lien. Consequently, the attorneys were entitled to their fees. Having held in this case that the district did not act in derogation of petitioner’s rights, we find the cases may be distinguished from the case at bar.

It is a basic principle of law that notwithstanding an attorney’s lien, a litigant can settle a case or satisfy and release a judgment without the knowledge or consent of his lawyer. (Anastos v. O’Brien (1972), 3 Ill. App. 3d 1015, 279 N.E.2d 759.) By virtue of “An Act creating attorney’s lien ***,” however, the lienee must stand ready to pay the lawyer that portion of the proceeds which the client agreed to pay the lawyer. (Anastos v. O’Brien (1972), 3 Ill. App. 3d 1015, 279 N.E.2d 759); Case v. Emerson-Brantingham Co. (1915), 269 Ill. 94, 109 N.E. 671.) However, the interest of the lawyer which is protected by “An Act creating attorney’s lien ***” is only in the proceeds of the litigation or its settlement. Anastos v. O’Brien (1972), 3 Ill. App. 3d 1015, 279 N.E.2d 759.

Here, it is undisputed that petitioner’s clients voluntarily released their individual tax objection suits when they agreed to join the class-action suit. Moreover, petitioner is correct in asserting that the release signed by its clients was not effective until after petitioner served notice of its lien. However, where an action is against a governmental body for the recovery of public funds, the creation of a fund under the control of the court has traditionally been a prerequisite to a fee award. (Rosemont Building Supply, Inc. v. Illinois Highway Trust Authority (1972), 51 Ill. 2d 126, 281 N.E.2d 338.) The “common fund” or “common benefit” doctrine allows a party who has conferred a benefit on another through litigation, to recover a share of attorney fees from those who benefit. In order for attorney fees to be awarded, therefore, a fund must have been brought within the control of the court. (Hamer v. Kirk (1976), 64 Ill. 2d 434, 356 N.E.2d 524; Hoffman v. Lehnhausen (1971), 48 Ill. 2d 323, 269 N.E.2d 465.) In the absence of a common fund, a plaintiff’s attorney is not entitled to fees merely because he has conferred a benefit upon members of a class. Hamer v. Kirk (1976), 64 Ill. 2d 434, 356 N.E.2d 524; Kaplan v. Mahin (1979), 79 Ill. App. 3d 848, 399 N.E.2d 315.

In the instant case, the trial court created a common fund of $6.45 million for the purpose of paying all costs and expenses incurred in the action. Petitioner’s clients were entitled to $1.7 million of that fund for the taxes they had paid. Petitioner therefore had two funds against which it could have asserted its lien. Petitioner, however, specifically requested that its lien not attach to either of those funds but instead insisted on being awarded its fees directly from the assets of the district. Although we are reluctant to bar attorneys from collecting fees after rendering valuable service, under the facts and circumstances in this case, we have no alternative but to affirm the circuit court’s denial of petitioner’s lien since petitioner has elected not to assert its lien against either the common fund or the proceeds recovered by its clients.

The district raises the alternative argument that petitioner’s lien is unenforceable against the district, claiming that attorney’s liens do not lie against the assets of municipal corporations. We need not reach this alternative argument, however, in view of our holding that petitioner cannot recover its fees from the district.

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

Judgment affirmed.

McGLOON and GOLDBERG, JJ., concur.


author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM GIL et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 83—116, 83—117 cons.
    Opinion filed June 29, 1984.

      James J. Doherty, Public Defender, of Chicago (R.H.R. Silvertrust, Assistant Public Defender, of counsel), for appellants.
    Richard M. Daley, of Chicago (Michael E. Shabat, Jane E. Liechty, and Neil J. Linehan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Following a bench trial, defendants, Patricia and William Gil, were found guilty of voluntary manslaughter, armed violence and concealment of the homicidal death of Jose Ramos. Defendants were each sentenced to consecutive terms of 14 years for armed violence and four years for concealment of a homicide. On appeal defendants contend: (1) that their convictions for armed violence cannot be based on voluntary manslaughter; and (2) that the trial judge erred in imposing consecutive sentences for armed violence and concealment of a homicidal death where the trial judge believed that he was required to do so. Additionally, William Gil contends that he cannot be held accountable for his wife’s actions in killing Jose Ramos.

On May 25, 1981, the Gil family and their friends were having a barbecue in the back yard of the Gils’ residence. Patricia Gil arrived home at approximately 8 p.m. Shortly thereafter she received a phone call from her former common law husband, Jose Ramos. Jose told her that he was coming to her house. She pleaded with him not to, and told him to leave her alone. Witnesses for the State testified that she also told Jose she would kill him if he came to her house. Patricia then came out to the yard and asked her husband for his gun. She stated that Jose was coming over and there might be trouble. After a short argument, William loaded the gun and gave it to her. Patricia then told William to take all the children to her mother’s apartment in the city. William got the children into the car, drove around the block, parked the car and returned on foot to the house. Daniel Anderson, a 17-year-old who resided with the Gils, and John Frye, Patricia’s brother, followed William back to the house. All three hid in the bushes alongside the driveway and waited for Jose’s arrival.

Jose arrived shortly thereafter. He walked first to the front door and then to the back of the house. He entered by the back door. Two minutes later a shot was heard. William, Daniel Anderson and John Frye ran to the house. Daniel was the first to reach the back door. Once inside the house Daniel saw Patricia in the dining room with a gun in her hands, and Jose lying on his back on the kitchen floor. Jose was bleeding from the neck area. He instructed Daniel to get help. Daniel reached for the telephone and dialed 911. At this point, William grabbed Daniel, threw him into the dining room, and hung up the telephone. Daniel told William that Jose would die if they did not call for help. William replied, “Let him die.” Daniel then grabbed a baseball bat and swung the bat at William. William took the bat from him and, with Patricia’s help, calmed him down. Patricia then left with Daniel to find the children.

William and John Frye remained at the house. John asked William what they were going to do. William replied that they were going to wait for Jose to die. John then went into the living room while William went outside to move Jose’s car into the driveway. Upon returning, William instructed John to get some old rags and a blanket from the basement. William then took Jose’s belt, tied Jose’s hands with the belt, removed Jose’s valuables from his pockets and wrapped Jose in the blanket. Next, William dragged Jose’s body outside and placed it in the trunk of Jose’s car. William then returned to the house and, with John’s assistance, cleaned the kitchen area. Thereafter the two changed clothes, put the clothes and the dirty rags into a plastic bag, and placed the bag in William’s car. They left the house in Jose’s car and drove into the city. On the way to the city, William told John to empty the glove compartment. John wrapped the items found in the glove compartment in a coat and threw the coat into a garbage can. Thereafter, William parked and left the car in an alley around Lawrence Avenue in Chicago.

Acting upon information regarding a possible homicide, Officer Bard, Sergeant Kozak and Detective Cauwe proceeded to the Gils’ residence. They arrived there at approximately 1 a.m. on the morning of the 26th. The officers found no one home but gained entrance to the house through a partially open kitchen window. They searched the house thoroughly and found no trace of a shooting.

The officers returned to the Gils’ residence approximately 20 minutes later and found Daniel Anderson and Patricia home. The officers told Patricia that they were investigating a reported shooting. She replied that someone was playing a joke on the police.

On May 29, 1981, Patricia travelled with Daniel Anderson to West Virginia. In Kentucky, they met with William, who was driving Jose’s car. Shortly thereafter, Jose’s car broke down. The Gils then had the car towed to Goal City, West Virginia. Once there, the Gils obtained gasoline, which they then poured over Jose’s car and ignited.

William Gil contends that his conviction of voluntary manslaughter cannot stand because he did not have the specific intent required by the accountability statute (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2(c)), or the mental state required by the voluntary manslaughter statute (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 2). We agree with defendant William that the record does not show that he possessed the mental state required by the voluntary manslaughter statute. However, such a showing is not required when a defendant is convicted of a crime on an accountability basis. Section 5 — 2 of the Criminal Code of 1961 provides:

“A person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2(c).)

In section 2 — 4 of the Criminal Code of 1961, conduct is defined as:

<<*** an aet or a series 0f acts, and the accompanying mental state.” (Ill. Rev. Stat. 1981, ch. 38, par. 2 — 4.)

The accountability statute thus ascribes to the defendant both the actions and the mental state of the perpetrator of the offense. Accordingly, the State need not show that the defendant possessed the intent to commit the offense, but only that the defendant possessed the intent to promote or facilitate the commission of the offense.

The intent to promote or facilitate a crime can be shown by evidence that defendant and the principal shared a community of unlawful purpose. (People v. Reed (1982), 104 Ill. App. 3d 331, 338, 432 N.E.2d 979; People v. Bolden (1978), 59 Ill. App. 3d 441, 448, 375 N.E.2d 898; People v. Hill (1977), 53 Ill. App. 3d 280, 284, 368 N.E.2d 714.) A community of unlawful purpose is proved by evidence of prior deliberation to commit the offense or by the spontaneous and combined participation of a group in the perpetration of the offense. People v. Reed (1982), 104 Ill. App. 3d 331, 338; People v. Bolden (1978) , 59 Ill. App. 3d 441, 448.

In the instant case, the record supports the conclusion that William Gil possessed the intent to promote or facilitate the fatal shooting of Jose Ramos. William supplied the gun. He ran to the house when he heard the shot. He physically prevented Daniel Anderson from calling for assistance for the wounded Jose. William told Daniel, “Let him die.” William later told John Frye that they were going to wait for Jose to die. Thereafter, William removed Jose’s valuables from his pockets, placed his body in the trunk of his car, and cleaned the kitchen area. William also dissuaded Patricia from calling the police when she wanted to report the incident. In our opinion William’s participation was sufficient to show an intent to facilitate the commission of the offense and to sustain his conviction of voluntary manslaughter.

William next contends that he cannot be held accountable for his wife’s actions in killing Jose Ramos. William argues that any actions taken by him occurred after the commission of the offense and should not be considered in determining legal accountability. However, it is well settled in Illinois that a crime is not completed until the offender has escaped from the scene. (People v. Johnson (1973), 55 Ill. 2d 62, 68-69, 302 N.E.2d 20; People v. Mumford (1979), 70 Ill. App. 3d 395, 400, 387 N.E.2d 910.) On the present record, we find that the trial court properly determined that William aided and abetted Patricia during the commission of the offense. See People v. Mumford (1979) , 70 Ill. App. 3d 395, 400-01.

We next consider William’s and Patricia’s contention that their armed violence convictions cannot be predicated on voluntary manslaughter. We find our supreme court’s decision in People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48, to be dispositive of this issue. The court there held that the armed violence statute (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 1 et seq.) is inapplicable to voluntary manslaughter. Consequently, we vacate the armed violence convictions entered against William and Patricia and remand for sentencing on the voluntary manslaughter convictions.

Since we vacate the armed violence convictions entered by the trial court, we do not address Patricia’s contention that the trial court abused its discretion in sentencing her to 14 years’ imprisonment for armed violence predicated upon voluntary manslaughter.

Lastly, we note that the trial judge believed that section 9— 3.1, concealment of homicidal death, required the imposition of a sentence to run consecutively to the sentence imposed for manslaughter. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3.1.) On remand for sentencing, we instruct the court that the statute does not require the imposition of consecutive sentences. People v. Schlemm (1980), 82 Ill. App. 3d 639, 402 N.E.2d 810, cert, denied (1981), 449 U.S. 1127, 67 L. Ed. 2d 115, 101 S. Ct. 948.

For the aforementioned reasons the judgment of the circuit court is affirmed in part, reversed in part and remanded.

Affirmed in part, reversed in part, and remanded.

RIZZI, P.J., and McGILLICUDDY, J., concur.

      The court found voluntary manslaughter to be a lesser included offense of armed violence and consequently did not impose sentence on the voluntary manslaughter convictions.


author: JUSTICE GOLDBERG

text:
    JOSEPH H. SPIEGEL (Joseph H. Spiegel, Ltd.), Plaintiff-Appellant, v. SHARP ELECTRONICS CORPORATION, Defendant-Appellee.
    First District (1st Division)
    No. 83—1084
    Opinion filed June 25, 1984.

      Spiegel & Fain, Ltd., of Chicago (Joseph H. Spiegel and Janel S. Fain, of counsel), for appellant.
    Wender, Murase & White, of New York, New York, and Schumacher, Jones, Kelly, Olson & Pusch, of Chicago (Robert D. Piliero, H. Barringer Pusch, and Richard A. Marsh, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

This appeal involves the purchase of a photocopier and a subsequent claim for damages regarding the proper functioning thereof. Joseph H. Spiegel (plaintiff) is an attorney. Joseph H. Spiegel, Ltd., a dissolved Illinois Professional Corporation, is included within the designation “plaintiff.” Sharp Electronics Corporation (Sharp) is the only defendant. The appeal comes to this court after entry of a final order by the trial court to dismiss with prejudice a number of counts in plaintiff’s complaint.

Defendant did not manufacture the copier. Defendant sold the machine to a distributor. This distributor, Coordinated Business Systems, Ltd. (CBS), was engaged in selling business equipment for defendant under the trade name of “Sharpfax.” Plaintiff personally did not purchase the copier. The actual buyer was First United Leasing Corporation. Plaintiff executed an equipment lease with this corporation. This was plaintiff’s method of financing the acquisition of the copier. The lease was subsequently assigned by First United Leasing to Michigan Avenue National Bank.

We will first restate the familiar applicable principles. Pleadings are liberally construed in an effort to accomplish substantial justice between the parties. (People ex rel. Scott v. College Hills Corp. (1982), 91 Ill. 2d 138, 145, 435 N.E.2d 463.) Although pleadings are to be liberally construed, a basic legal deficiency in a pleading “may not be cured by liberal construction or argument.” (People ex rel. Kucharski v. Loop Mortgage Co. (1969), 43 Ill. 2d 150, 152, 251 N.E.2d 211, quoted in Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 427, 430 N.E.2d 976.) It has been repeatedly and strongly held that, “in considering a motion to dismiss, the pleadings are to be construed strictly against the pleader.” Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 421.

The first 16 counts in the third amended complaint pray for damages: $2,275 paid on account and $7,331.50 the entire balance of payment for the copier; payments to “a licensed repair service” $700; cost of copies by other machines $600; “damage and inconvenience” to plaintiff’s business $15,000; being a total of $25,906.50. Count XVII also prays for $100,000 in punitive damages. Finally, count XVIII adds $300,000 in punitive damages.

Counts I Through IV

Counts I through IV of plaintiff’s complaint are based upon the warranty provisions of the Uniform Commercial Code (UCC) (see Ill. Rev. Stat. 1983, ch. 26, pars. 2 — 313 through 2 — 315). Plaintiff concedes, however, that the copier did not cause personal injury or property damage but solely economic loss and that plaintiff is not in privity of contract with defendant. Thus, a threshold question is presented as to whether plaintiff can recover solely economic losses on a warranty theory in the absence of privity. See Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 82, 435 N.E.2d 443 (defining economic loss).

Plaintiff takes the position that privity is unnecessary to recovery on a warranty theory. Plaintiff’s reply brief cites literally dozens of cases decided by courts throughout the United States relating to the need for privity of contact in a warranty action. We take the view that it is unnecessary for us to consider all or any of these cases in this opinion. On the contrary, we prefer to cite and be bound by the law of Illinois.

Although privity has been abolished as unnecessary in actions founded upon tort liability (Rozny v. Marnul (1969), 43 Ill. 2d 54, 62, 250 N.E.2d 656), privity generally remains a requirement in all warranty actions in Illinois except an action for personal injury based upon breach of an express or implied warranty against a remote manufacturer. See, e.g., Frank’s Maintenance & Engineering, Inc. v. C. A. Roberts Co. (1980), 86 Ill. App. 3d 980, 992-93, 408 N.E.2d 403; Ill. Rev. Stat. 1983, ch. 26, par. 2 — 318.

Plaintiff’s reply brief cites Crest Container Corp. v. R. H. Bishop Co. (1982), 111 Ill. App. 3d 1068, 445 N.E.2d 19, appeal denied (1983), 93 Ill. 2d 541, as foreshadowing the abolition of the privity requirements in cases involving only economic loss. Plaintiff describes this change in the law as “necessitated by a changing society.” We do not agree that Crest Container foreshadows the abolition of the privity requirement. On the contrary, the case simply describes a very narrow situation in which recovery of economic loss may be had on a warranty theory in the absence of privity. The exception dealt with by the court is limited to cases where a “remote manufacturer knows ‘the identity, purpose and requirements of the dealer’s customer and manufactured or delivered the goods specifically to meet those requirements.’ ” (Crest Container Corp. v. R. H. Bishop (1982), 111 Ill. App. 3d 1068, 1076, quoting Frank’s Maintenance & Engineering, Inc. v. C. A. Roberts Co. (1980), 86 Ill. App. 3d 980, 993.) No facts are alleged in the instant case regarding such knowledge on the part of defendant.

During oral argument, plaintiff cited section 2 — 318 of the UCC (Ill. Rev. Stat. 1983, ch. 26, par. 2 — 318). This enactment provides that a seller’s warranty may extend to any natural person who is in the family or household of the buyer or who is a guest in the buyer’s home “who is injured in person by breach of the warranty.” Manifestly the language of this statute has no application to the instant case. However, plaintiff cites Comment 3 of the Uniform Commercial Code Comment pertaining to this section (Ill. Ann. Stat., ch. 26, par. 2 — 318, Committee Comment, at 265 (Smith-Hurd 1963)). This Comment specifically states that section 2 — 318 “is neutral and is not intended to enlarge or restrict the developing case law on whether the seller’s warranties, given to his buyer who resells, extend to other persons in the distributive chain.” We cannot conclude that this portion of the UCC or the Comment advance plaintiff’s contentions in any respect.

It follows necessarily that because plaintiff was not in privity with defendant, plaintiff cannot recover his economic losses from this defendant based on a theory of breach of warranty. It is therefore unnecessary to address the individual counts for breach of warranty contained in the complaint. Counts I through IV of the third amended complaint were properly dismissed.

Count VIII

Count VIII of the complaint alleges that count I is properly maintained as a class action. Since we have concluded that count I was properly dismissed, it follows necessarily that the attempted class action fails. See Kittay v. Allstate Insurance Co. (1979), 78 Ill. App. 3d 335, 339, 397 N.E.2d 200, appeal denied (1980), 79 Ill. 2d 631, and cases there cited.

Counts V And VI

Counts V and VI of plaintiffs complaint allege that defendant made false representations as to its relationship with its distributor, Coordinated Business Systems, Inc. (CBS), and as to the quality and performance of the copier. The representations alleged to be false were contained in an advertisement placed by CBS. The specific representations were that CBS was a “factory authorized Sharp dealer” and the copier would make “picture perfect copies” and would “reduce error and waste.”

Initially, since the advertisement was not placed by defendant, there is no basis upon which defendant can be held liable for any representations made therein by CBS unless there existed an agency relationship between them. No such relationship exists between a supplier and a retailer which simply and only sells merchandise bearing the supplier’s brand name. See Washington v. Courtesy Motor Sales, Inc. (1964), 48 Ill. App. 2d 380, 199 N.E.2d 263.

Secondly, we find no merit in plaintiff’s argument that statements by CBS created an “apparent agency” between CBS and Sharp. To show the existence of an “apparent agency,” it is necessary to plead some act or conduct by the alleged principal which is sufficient to create the inference that the alleged agent was authorized to act on behalf of the principal. (Emmenegger Construction Co. v. King (1982), 103 Ill. App. 3d 423, 431 N.E.2d 738.) This plaintiff failed to do.

The fact that defendant reimbursed CBS for a percentage of the cost of the advertisement placed by CBS does not itself fulfill this requirement. Plaintiff did not discover this alleged reimbursement until after he filed suit. Manifestly, plaintiff did not believe CBS was defendant’s agent at the time of the purchase of the copier. Nor is the fact that defendant allowed representatives of CBS to attend its sales training seminars sufficient to create an apparent agency. Plaintiff was unaware of this fact at the time of the purchase.

Third, the representation made by CBS that it was a “factory authorized Sharp dealer,” even if false, is not alleged to have caused any injury to plaintiff. The economic losses plaintiff suffered were limited to allegedly poor performance by the copier. Plaintiff did not allege any cause and effect relationship between the alleged misrepresentation and plaintiff’s damages. There is no allegation describing how the status of CBS as an authorized dealer could have had any effect on the copier’s performance. Thus, counts V and VI lacked one of the essential elements for pleading a cause of action for ordinary fraud. See Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599.

The representations that the copier would make “picture perfect copies” and would “reduce error and paper waste” were also made by CBS, and not by defendant. Moreover, these statements amount to mere commendation or opinion, and thus cannot qualify as fraudulent misrepresentations. (See, e.g., Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, 489, 429 N.E.2d 1267, appeal denied (1982), 91 Ill. 2d 552.) Counts V and VI were properly dismissed.

Count VII

Count VII alleges that plaintiff should be considered a third-party beneficiary with reference to certain express and implied warranties running between defendant and CBS. This allegation is based upon plaintiff’s contention defendant knew that CBS purchased copiers for resale purposes. Count VII does not allege that defendant knew CBS would sell a copier to plaintiff, or that the contract between defendant and CBS defined any third party by any designation or description.

The law of Illinois is that third-party beneficiary status may only be conferred where the identification of the third party to be benefited is clear and the benefit to him is direct. (See, e.g., Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 257, 178 N.E. 498. See also Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 179, 441 N.E.2d 324.) Since count VII is devoid of any allegations that defendant knew plaintiff’s identity, or knew of any specific requirements plaintiff had, or specifically manufactured the copier to meet these requirements, count VII was properly dismissed. See Crest Container and Frank’s Maintenance.

Plaintiff relies upon Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 421 N.E.2d 182. There, the supreme court recognized the third-party beneficiary status of owners who contract for the construction of a building under certain circumstances. The court concluded, however, that a plaintiff cannot recover as a third-party beneficiary unless he alleges facts “which show an intent on the part of the developer to confer the benefit ***.” (85 Ill. 2d 44, 56.) Plaintiff’s count VII is based only upon the alleged knowledge of defendant that the copiers would be resold to ultimate purchasers. In our opinion, this basis is legally insufficient.

Also, in Altevogt, the court specifically rejected the suggestion that mere knowledge of resale to third parties is sufficient to create third-party beneficiary status. The court stated, “*** we do not believe that [the builder’s] knowledge that a third party would occupy the house establishes that the plaintiffs were direct beneficiaries.” (Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 56. See also Slate Printing Co. v. Metro Envelope Co. (N.D. Ill. 1982), 532 F. Supp. 431, 433.) We conclude that count VII was properly dismissed.

Count XVIII

Finally, plaintiff alleged that the statements relied upon to support his breach of warranty and fraud claims also constitute false representations which violate the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1983, ch. 1211/2, par. 261 et seq.). Because the representations were not made by defendant and, as above shown, were not sufficient to support an allegation of fraud, we conclude the allegations regarding these representations were not sufficient to support a claim of violation of the statute. Count XVIII was properly dismissed.

Finally, we must add that plaintiff originally included Coordinated Business Systems, Ltd., as a defendant here. Upon dismissal of a portion of the case as to CBS, plaintiff appealed to this court. That appeal was consolidated with the instant appeal. However, shortly prior to the oral argument of the consolidated cases, this court entered an order by agreement of the parties severing the two appeals and dismissing the case against CBS with prejudice.

The judgment appealed from is accordingly affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.