author: JUSTICE JIGANTI

text:
    LINDA FESS et al., Plaintiffs-Appellants, v. PARKE, DAVIS & COMPANY, Defendant-Appellee. — (Katherine Fess, a Minor, by Linda Fess et al., her Parents and Next Friends, Plaintiff; Bernard M. Greenwald et al. Defendants.)
    First District (4th Division)
    No. 82—52
    Opinion filed March 10, 1983.
    John D. Hayes & Associates, Ltd., of Chicago (John D. Hayes and David A. Novoselsky, of counsel), for appellants.

      Lord, Bissell & Brook, of Chicago (William J. White and Hugh C. Griffin, of counsel), for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

On November 19, 1979, the plaintiffs, Linda and Arthur Fess, parents of minor child, Katherine Fess, brought suit against the defendant, Parke, Davis & Company, on behalf of their daughter for the severe and permanent injuries which she sustained during her birth on November 24, 1974, The plaintiffs also brought an individual action against Parke Davis alleging that their daughter’s injuries rendered them liable for medical, hospital, nursing, caretaking and other related expenses, as well as loss of income and loss of consortium.

Parke Davis moved to dismiss those portions of the complaint brought by the parents individually as not being commenced within two years following the injuries pursuant to section 14.1 of the Limitations Act. That section is applicable to loss of consortium and other derivative type actions. (111. Rev. Stat. 1979, ch. 83, par. 15.1, now codified as Ill. Rev. Stat. 1981, ch. 110, par. 13 — 204.) The parents responded that section 21, commonly referred to as the savings section which extends the time for bringing a minor’s cause of action until two years after the minor has reached the age of 18, similarly tolled their derivative action. (111. Rev. Stat. 1979, ch. 83, par. 22, now codified as 111. Rev. Stat. 1981, ch. 110, par. 13 — 211.) The trial court granted the defendant’s motion to dismiss.

The relevant statutes are summarized as follows:

“Sec. 14. Actions for damages for an injury to the person *** shall be commenced within two years after the cause of action accrued.” 111. Rev. Stat. 1979, ch. 83, par. 15, now codified as 111. Rev. Stat. 1981, ch. 110, par. 13 — 203.
“Sec. 14.1. Actions for damages for loss of consortium or other actions deriving from injury to the person of another shall be commenced within the same period of time as actions for damages for injury to such other person.” 111. Rev. Stat. 1979, ch. 83, par. 15.1, now codified as 111. Rev. Stat. 1981, ch. 110, par. 13 — 204.
“Sec. 21. If the person entitled to bring an action *** is, at the time the cause of action accrued, within the age of 18 years *** he or she may bring the action within 2 years after the disability is removed.” 111. Rev. Stat. 1979, ch. 83, par. 22; now codified as 111. Rev. Stat. 1981, ch. 110, par. 13 — 211.

On appeal the parents argue that when the legislature amended section 14.1 on derivative actions in 1977, it reduced the filing time from five years to two years to conform the derivative action to the underlying injury action. According to the parents, this evinced an intent on the part of the legislature to conform derivative actions generally to the underlying injury. Consequently, the parents urge that since their child’s action is tolled under section 21 until two years after she reaches her majority, their derivative action is also tolled. We do not agree.

The language of section 21 specifically refers to the person who can avail himself of the savings clause as “*** the person entitled to bring an action *** [who] is, at the time the cause of action accrued, within the age of 18 years ***.” (Emphasis added.) (111. Rev. Stat. 1979, ch. 83, par. 22.) The defendant argues here, and rightfully so, that this language cannot refer to the parents because at the time their derivative action accrued, they were over the age of 18. Section 21 goes on to say that “he or she may bring the action within 2 years after the disability is removed.” Again, this language cannot refer to the parents because they are under no removable age disability. Therefore under the plain meaning of the savings clause, the clause applies only to a person who is under 18 years at the time that the cause of action accrued and only that person may bring an action within two years after the disability is removed. In construing a statute, a court must adhere to the plain meaning of the words employed by the legislature. Rushton v. O’Malley (1980), 89 Ill. App. 3d 103, 411 N.E.2d 528.

Furthermore in ascertaining legislative intent, it is an established rule regarding statutes of limitations that no exceptions which toll the statute or enlarge its scope will be implied. As the court stated in Fisher v. Rhodes (1974), 22 Ill. App. 3d 978, 317 N.E.2d 604, “for if the legislature had intended to except any class of persons from the effect of the statute, it would have done so and courts will not assume such authority or dominion. '*** [T]he court may construe only the clear words of the statute, and if its scope is to be enlarged, the remedy should be legislative rather than judicial. ***’ ” 22 Ill. App. 3d 978, 981-82, 317 N.E.2d 604, 607.

Also, the rationale for allowing a savings clause for minors has no application to a derivative action. The reason for tolling the statute of limitations for minors is that enforcement of a child’s right should not be left to the whim or mercy of some self-constituted next friend. (Girman v. County of Cook (1981), 103 Ill. App. 3d 897, 431 N.E.2d 1291.) An exception for minors is necessary “ ‘to protect the minor’s interest and preserve his day in court’ ” until he is able to bring suit in his own behalf. (103 Ill. App. 3d 897, 899, 431 N.E.2d 1291, 1293.) The parents, as adults, are quite capable of bringing suit on their own behalf within the two years of the child’s injury.

Finally, the conformity which the parents presume from their theory of legislative intent is not in fact present. If a derivative action is conformed to the time period allocated to minors under the savings section, it would still be possible for the minor to bring her action within a short time after injury while her parents would have almost 20 years to bring their action. This could not be the result intended by the legislature.

For the reasons stated above we affirm the judgment of the trial court.

Affirmed.

ROMITI, RJ., and LINN, J., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUBY COX, Defendant-Appellant.
    First District (4th Division)
    No. 82—859
    Opinion filed March 17, 1983.
    James J. Doherty, Public Defender, of Chicago (Robert D. Click, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Harry H. Semrow, Jr., Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a bench trial, the defendant, who had been charged with the murder of her four-year-old son, was convicted of involuntary manslaughter, and sentenced to an extended term of 10 years in the Department of Corrections. On appeal, she contends that the trial judge abused his discretion in imposing an extended-term sentence.

The evidence introduced at trial in this case clearly established that the defendant, a 20-year-old woman, brought her dead infant son to a hospital emergency room, where it was ascertained that he had sustained second and third degree burns on his wrists, and had gauze and tape on his hands. The admitting physician felt that the child had died several hours earlier, and further examination of the body revealed open cuts on the chin, lacerations and bruises near the groin, and a severe open wound between the shoulder blades.

The testimony of the investigating police officer disclosed that the defendant told him the child had been burned on the hands and back accidentally, when the child put his hands in a pot of cooking spaghetti that he pulled down on himself, and when he fell against a radiator after she struck him. After the defendant was taken to the police station and advised of her Miranda rights, she admitted that she had been beating her son for a number of months, and that she had immersed his hands in scalding water as punishment. In addition, the doctor who performed the autopsy testified about the multiple injuries on the body. He said that the thermal burns on the boy’s hands came several days before the child was brought to the hospital. He further testified that the condition of the boy’s burned hands was not consistent with either accidental exposure to scalding water or accidental immersion; the hands, he said, must have been held under water a longer time. The doctor opined that the pneumonia bacteria which caused the child’s death entered his body through his unprotected hand wounds. Also, the doctor testified that the burn between the child’s shoulder blades was not accidental; that there was no evidence of any medical treatment for the burns before the child was brought to the hospital; that the cut on the child’s chin was ulcerated and badly infected; and that the bruises on the child’s body could have been caused by a belt or by grabbing or squeezing.

The defense entered a stipulation that the admitting physician at the emergency room observed the child’s hands wrapped in gauze, taped, and treated with an unknown ointment. A psychologist then testified that the defendant abused her own child because she had been severely physically abused as a child; she had told him that when she placed her child’s hands under the hot water, she was not aware of what she was doing. Additional witnesses also testified on the defendant’s behalf. Finally, the defendant herself told the court that she put her son’s hands into the hot water for about one second when she was upset with him; she said she then treated his hands with ointment and covered them with gauze after she called a doctor. She further testified that four or five days later the child became ill with vomiting and diarrhea; she then took him to the hospital, where one of the doctors said her son was dead.

After hearing all the above testimony, the trial judge found the defendant guilty of involuntary manslaughter. A person who unintentionally kills another commits involuntary manslaughter if his acts are likely to cause death or great bodily harm, and he performs them recklessly. (See 111. Rev. Stat. 1979, ch. 38, par. 9 — 3(a).) After terming the defendant’s actions “cruel ***, mean, hideous, horrible,” and “accompanied by exceptionally brutal and heinous behavior *** indicative of wanton cruelty,” the trial judge sentenced the-defendant to the extended-term sentence of 10 years in the Department of Corrections that she now contests. See 111. Rev. Stat. 1979, ch. 38, par. 1005 — 5— 3.2(b)(2).

Although defendant argues that the extended-term sentence imposed by the trial court must be vacated, we reject this contention. In this case, there was no question that defendant brutally abused her own child, and that her actions directly caused his death. There was ample evidence to support the trial judge’s comments at sentencing that “it is wanton and blatant cruelty to take a *** child's hands and put them halfway above his wrist in scalding hot water. I think it is wanton cruelty to sit back three days *** before you take the child to the hospital.” Accordingly, when the judge found defendant guilty of involuntary manslaughter, he implicitly found that her reckless acts caused the child’s death, though she did not intentionally kill the child. (111. Rev. Stat. 1979, ch. 38, par. 9 — 3(a).) A reckless act is performed “wantonly, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.” (111. Rev. Stat. 1979, ch. 38, par. 4 — 6.) Thus, by definition, the finding of recklessness inherent in the offense of involuntary manslaughter is equivalent to a finding that defendant’s acts were performed wantonly. And, as the court stated in People v. Jones (1979), 73 Ill. App. 3d 99, 103, 391 N.E.2d 767, 769, “cruelty” can be a “disposition to inflict pain or suffering,” or “something that causes pain or suffering.” Given these definitions, the “wanton cruelty” necessary for the imposition of an extended-term sentence clearly was present. And, under the facts of this case, there can be no doubt that the offense was “accompanied by exceptionally brutal or heinous behavior,” as the extended-term statute also requires. Therefore, we reject the defendant’s argument that the trial judge abused his discretion, and we uphold the extended-term sentence imposed at trial.

We also find the defendant’s reliance on People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520, to be misplaced. In Evans, where the court rejected the imposition of an extended-term sentence, an accidental killing was found not to be accompanied by wanton cruelty. The court there also found that the defendant accidentally killed a victim he had no desire to harm, and that none of his actions were directed toward that victim. Here, however, it was painfully obvious from the evidence at trial that the defendant’s actions in beating, scalding and callously neglecting her child were exceptionally brutal and heinous, and accompanied by wanton cruelty. Also, there could be no doubt that all the defendant’s harmful actions were purposefully and directly aimed at her own child, regardless of the defendant’s subjective intent or lack of ability to control her own actions. In addition, recent case law indicates that the broad reading of Evans which the defendant urges is not appropriate. See People v. Brown (1982), 104 Ill. App. 3d 1110, 433 N.E.2d 1081.

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

Affirmed.

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


author: JUSTICE LEWIS

text:
      In re J.A.G., a Minor.—(The People of the State of Illinois, Petitioner-Appellee, v. J.A.G., Respondent-Appellant.)
    Fourth District
    No. 4—82—0212
    Opinion filed March 3, 1983.
    — Modified on denial of rehearing April 7, 1983.
    Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

This is an appeal from an order committing a delinquent minor to the juvenile division of the Department of Corrections following a finding that he had committed three batteries. His sole contention on appeal is that his commitment to the Department of Corrections is unlawful because he will not receive proper treatment for a drug abuse problem while incarcerated.

We cannot consider the merits of the above contention on direct appeal from respondent’s commitment. Those cases in which courts have held that the conditions of confinement of prisoners or residents of juvenile rehabilitation or mental health facilities violate the constitutional rights of such persons have consistently originated as civil suits against officials of the institutions where the affected individuals were confined. (See, e.g., Youngberg v. Romeo (1982), 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452; Nelson v. Heyne (7th Cir. 1974), 491 F.2d 352; Holt v. Sarver (E.D. Ark. 1969), 300 F. Supp. 825.) The reasons for this phenomenon are readily apparent. Generally speaking, the sentencing or committing judge does not select or designate the correctional or mental health institution to which a prisoner, juvenile delinquent or mental patient will be assigned; that decision is typically made by the governmental department or agency to whose care such person is committed. It follows that at the time he or she is sentenced or committed, a prisoner, juvenile offender, or mental health patient will usually have no specific knowledge as to what the conditions of his or her confinement will be and will therefore be unable to present evidence as to this matter at the sentencing or dispositional hearing.

Furthermore, the appropriate remedy for unconstitutional conditions of confinement is normally an injunction ordering the abatement of the unconstitutional conditions, as opposed to unconditional release of the affected prisoners, juvenile offenders or mental patients (see, e.g., Nelson; United States ex rel. Wilson v. Coughlin (7th Cir. 1973), 472 F.2d 100; Morales v. Turman (E.D. Tex. 1973), 364 F. Supp. 166). Since officials of the governmental departments and agencies responsible for the maintenance of prisons and juvenile detention and mental health facilities are obviously not parties to most criminal and civil commitment proceedings, a trial judge is usually incapable of affording any meaningful relief to a defendant or respondent who challenges the conditions of confinement at his or her sentencing or dispositional hearing, even if sufficient evidence as to the conditions of confinement is presented at that hearing.

Since a sentencing or dispositional hearing is not, therefore, a proper forum in which to advance contentions as to alleged unconstitutional conditions of a defendant’s or respondent’s impending confinement, direct appeal from an order of commitment or an order imposing sentence is likewise not a proper means of asserting the alleged unconstitutionality of conditions of confinement. Although in the instant case the respondent obviously had some knowledge as to the conditions of his confinement at the time that his appeal was briefed and argued before this court, consideration of whether those conditions violate any of respondent’s constitutional rights would require us to consider evidence outside of the record which was before the circuit court when it committed respondent to the Department of Corrections. An appellate court may not premise its decisions on such evidence. (See In re Marriage of Legge (1982), 111 Ill. App. 3d 198; Mid-City National Bank v. Mar Building Corp. (1975), 33 Ill. App. 3d 1083, 339 N.E.2d 497.) We must therefore affirm respondent’s commitment to the juvenile division of the Department of Corrections.

In his petition for rehearing, respondent concedes that a dispositional hearing is an improper forum for advancing contentions as to the alleged unconstitutionality of the conditions of a minor’s impending incarceration and also agrees that the judge presiding at a dispositional hearing is incapable of affording any relief to a minor on the basis of such contentions. The respondent asserts, however, that the trial court’s dispositional order itself represents an unconstitutional exercise of judicial authority which was violative of his right to drug abuse treatment. In support of this assertion, respondent relies on People v. Joseph (1982), 105 Ill. App. 3d 568, 434 N.E.2d 453, and analogizes the dispositional order entered in this case to an unconstitutional application of the death penalty.

Assuming, for purposes of argument only, that J.A.G. does indeed have a constitutional right to treatment for his drug abuse problem, his contention that his commitment to the Department of Corrections (DOC) is violative of that right must stand or fall on the basis of the evidence which was available to the trial court at the time of the dis-positional hearing. (See generally Mid-City National Bank v. Mar Building Corp. (1975), 33 Ill. App. 3d 1083, 339 N.E.2d 497.) At his dispositional hearing, the respondent testified that during a prior stay at the Hanna City juvenile correctional facility, the only drug abuse treatment that he received consisted of weekly sessions with a volunteer. According to respondent, these sessions were of very little help, and he continued to use drugs even while incarcerated.

The only other evidence bearing directly on the type of drug abuse treatment which was to be available to respondent while confined to the DOC as a result of the dispositional order entered in this case was the testimony of Roxanne Castleman, respondent’s probation officer, that she had been told by DOC officials that there are no formal drug abuse treatment programs available to minors in the custody of the DOC. The DOC does, however, make use of community resources to meet the drug abuse treatment needs of minors confined to each juvenile correctional facility.

The fact that respondent received little formalized drug abuse treatment while confined to the Hanna City juvenile facility does not amount to conclusive evidence as to the type of treatment which was to be available to him upon his incarceration following the dispositional hearing. The testimony of Ms. Castleman established only that the type of drug abuse treatment available at the juvenile correctional facilities operated by the DOC varies. In our view, this evidence falls far below that which would be required to establish that the circuit court’s order of commitment constituted an infringement of J.A.G.’s purported constitutional right to treatment for his drug abuse problem. Joseph and the cases in which the application of the death penalty was held unconstitutional do not require a different result. In Joseph, the sentence imposed (that during the period of his incarceration, defendant be placed in solitary confinement from sunrise to sunset on each anniversary of the murder of which he was convicted and be fed only bread and water during that time) was clearly of a type which the trial court was not statutorily empowered to impose, and, in the death penalty cases, the records contained facts which amply supported the determination that the death penalty was unconstitutionally applied.

For the above reasons, we are of the opinion that there is no basis upon which to alter our original disposition of this matter. The petition for rehearing is denied.

Affirmed.

MILLS and TRAPP, JJ., concur.


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY PEREZ, Defendant-Appellant.
    First District (1st Division)
    No. 81—374
    Opinion filed March 7, 1983.

      Steven Clark and Bruce Mosbacher, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean R Karlos, and Denise O’Malley Porn, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

Defendant Anthony Perez was found guilty of murder following a jury trial, and sentenced to a term of natural life. Defendant appeals, arguing: (1) his rights to remain silent and to counsel were not scrupulously honored; (2) the trial court erroneously restricted cross-examination of a key State witness and therefore the jury could not fairly assess the weight to be given defendant’s admission; (3) he was deprived a fair trial by the manner in which the prosecution presented defendant’s confession to the jury; (4) the trial court erroneously admitted into evidence a police investigator’s testimony regarding powder burns on the victim’s wounds, thereby prejudicing defendant; (5) he was denied a fair trial due to the prosecutor’s improper remarks; (6) he was denied due process when he was sentenced to a term of natural life because the trial judge told him, prior to trial, that the maximum sentence he could receive if he pleaded not guilty, was 80 years; (7) the case must be remanded for a new sentencing hearing because defense counsel was not afforded the presentence report in the requisite period of time; (8) the trial court abused its discretion by sentencing defendant to natural life because the evidence failed to prove that defendant participated in the mutilation of the deceased; and (9) the discretion vested in the trial judge to sentence a defendant to a natural life term violates the equal protection clause.

We affirm.

The frozen body of Victor Figueroa was discovered on February 23, 1979, by police officer James Tagliere in the gangway at 1027 N. Francisco Street, in Chicago. The victim had been shot. His penis had been amputated and had been forced into the victim’s mouth. Six .38-caliber cartridge cases were found on the windowsill above the victim. A gold chain with a Playboy bunny charm was found next to the body. The chief medical examiner of Cook County testified that an autopsy confirmed three bullet wounds to the chest and the amputation of the penis. The cause of death was a bullet wound to the heart.

In August 1976, Figueroa had been a witness for the State in the murder trial of Julio Munoz, Sr., who was convicted and sentenced to 75 to 150 years. Figueroa had received so many threats on his life from members of the Latin Kings street gang that he was relocated for protection.

Police Officer Jeremiah Lynch was assigned to investigate Figueroa’s murder. After several days, information was obtained which led to the arrest of defendant. After his arrest, defendant was given his Miranda warnings on six occasions during the transportation and interrogation. The circumstances surrounding defendant’s waiver of his rights will be discussed below.

While in custody, defendant initially denied any involvement in Figueroa’s murder. However, after making a phone call, he told Officer Lynch that he and another individual, known only as “Black Jack,” had decided to kill Figueroa because he had testified against the father of one of the Latin Kings. Defendant’s confession was read to him and he signed it. Defendant’s motion to suppress his oral and written statements was denied at trial. The trial judge allowed the State to read defendant’s statement to the jury and it was admitted into evidence. The written statement was also given to the jury.

Prior to the pretrial conference, the trial judge informed defendant that the maximum sentence which could be imposed for the crime of murder was 80 years. A plea bargaining session resulted in the State offering defendant 50 years in exchange for a guilty plea. Defendant rejected the State’s offer and decided to exercise his constitutional right to proceed to trial. After trial, defendant was found guilty and sentenced to a term of natural life.

First, defendant contends that his rights to remain silent and to have counsel present were not scrupulously honored. We disagree.

Defendant received the first set of Miranda warnings from Officer Sherry, while being transported from the scene of the arrest to headquarters. Later, defendant received Miranda warnings from assistant State’s Attorney Kopec. When defendant responded, “I don’t want to talk to you right now. I want to make a phone call,” Kopec immediately stopped his questioning and left the room. Defendant then told Lynch that he would be willing to tell the officers what happened after he made the phone call.

After making the phone call, once again defendant was informed of his rights, stated that he understood them and proceeded to disclose, in detail, how he murdered Figueroa. Kopec asked defendant if he would repeat his confession in the presence of a court reporter. Defendant agreed. A court reporter was called and recorded defendant’s confession. Defendant then gave Kopec a statement which was substantially the same as the statement he had previously given to Lynch. Defendant stated that, “I shot Playboy, but I didn’t cut off his dick.” Further, the statement revealed that defendant had been in a bar at 1100 North California when the victim came into the tavern hoping to buy drugs. He and Black Jack lured the victim to a gangway a short distance from the bar. Black Jack pretended to fall on the ice, dragging the victim down with him. Defendant then told the victim that his days were over and fired six rounds from a .38 revolver at the victim. Black Jack reloaded the weapon for defendant and told defendant to fire the seventh bullet into the victim’s heart, which he did. The pair then fled the scene.

Kopec then read the statement to defendant and defendant signed it. During trial, the statement was read to the jury by two assistant State’s Attorneys.

The Miranda decision established that a defendant may waive his rights to remain silent and to have, an attorney present, provided the waiver is made voluntarily, knowingly and intelligently.. Interrogations must cease when the accused indicates that he wishes to remain silent. Likewise, if he indicates that he wishes to consult with an attorney before speaking there can be no further questioning. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) However, subsequent decisions hold that admissibility of statements obtained after the accused asserts- his right to remain silent depend upon whether his right to cut off questioning was scrupulously honored. (Michigan v. Mosley (1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321.) It is equally clear that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused. (Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.) Furthermore, the United States Supreme Court has emphasized three circumstances which tended to show that defendant’s right of silence was scrupulously honored: (1) the passage of significant time between questioning, (2) a different officer conducted the second questioning and gave new Miranda warnings, and (3) the fact that the second questioning involved a completely different crime. (Michigan v. Mosley (1975), 423 U.S. 96, 106, 46 L. Ed. 2d 313, 322-23, 96 S. Ct. 321, 327-28.) This court has held that the fact to determine the voluntariness of a statement is whether it was made without compulsion or inducement. People v. Savory (1980), 82 Ill. App. 3d 767, 403 N.E.2d 118.

It is our opinion that defendant’s rights were scrupulously honored. He was given Miranda warnings on six separate occasions by “different authority,” Officer Lynch and assistant State’s Attorney Kopec, as required by Mosley. Moreover, here as in People v. Goodrich (1977), 48 Ill. App. 3d 141, 362 N.E.2d 798, defendant’s initial statement to Kopec indicated that he did not wish to discuss the crime until after he had made a phone call. Under Goodrich, this must be considered an “invitation to talk later,” after the phone call. If so interpreted, this fact further establishes that defendant’s rights were scrupulously honored. Goodrich.

Second, defendant contends that the jury was not able to determine fairly the weight to be given defendant’s confession because he was not allowed to cross-examine Investigator Lynch about his initial denial of involvement in the crime.

At trial, defense counsel attempted to question Lynch about defendant’s denial of his involvement in the homicide. The State objected on several grounds. The trial judge sustained the objection.

The Illinois Supreme Court has held that the trial court is vested with substantial discretion as to the range of cross-examination. (People v. McCain (1963), 29 Ill. 2d 132, 193 N.E.2d 784.) A reviewing court will not interfere absent a clear showing of abuse of such discretion, resulting in manifest prejudice to the defendant. People v. Halteman (1956), 10 Ill. 2d 74, 139 N.E.2d 286.

There was extensive direct and cross-examination concerning the circumstances surrounding the defendant’s confession. The testimony of Officer Lynch, who was present during defendant’s interrogation, established that defendant initially denied that he had murdered Figueroa. Given these facts, the jury was provided with sufficient information from which to decide what weight defendant’s admission should be given. Furthermore, in light of the overwhelming evidence of defendant’s guilt, any errors due to the limitation on the defense counsel’s cross-examination of Lynch was harmless error.

Third, defendant contends that he was denied a fair trial due to the manner in which defendant’s confession was read to the jury. The trial judge permitted assistant State’s Attorney Kopec to read the questions and rights he gave defendant in the presence of the court reporter. Another prosecutor read defendant’s responses. Defendant argues the procedure overemphasized the statement to his prejudice. We agree that the method used to present defendant’s confession to the jury was improper, and we would caution the State against using this method in introducing a written statement. However, we find that the procedure used did not overemphasize the statement to defendant’s prejudice. We find this error, if any, to be harmless.

Fourth, defendant contends that he was denied a fair trial by the prosecutor’s repeated improper remarks made during closing argument. The first comments which defendant identifies as improper were made by the prosecutor in direct rebuttal to defense counsel’s accusation that the State failed to produce certain witnesses. Where comments and arguments are invited by remarks of defense counsel, defendant will not be allowed to claim prejudice. (People v. Hardaway (1969), 108 Ill. App. 2d 325, 247 N.E.2d 626.) Moreover, any prejudice to defendant was cured when the judge admonished the jury to disregard the comments. People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.

Defendant also assigns error to the fact that the trial judge failed to sustain defendant’s objection regarding the prosecutor’s characterization of defense counsel’s attempts to implicate a third party as a “puff of smoke.” Again, the prosecutor’s remarks were provoked by defense counsel’s query as to whether the prosecutor excluded the reasonable hypothesis that another gang member killed Figueroa. (Hardaway.) And any prejudice resulting from the prosecutor’s references to defendant as a “hit man,” a “butcher” and a “pusher” were cured when defense counsel’s objections were promptly sustained. People v. Kitchen (1977), 53 Ill. App. 3d 521, 368 N.E.2d 528.

Additionally, defendant contends that various other remarks, similar to the ones above, were clearly prejudicial. He argues that their prejudicial effect mandates that defendant’s conviction be reversed. We disagree.

The trial court is given wide latitude in determining the propriety of the closing argument. A reviewing court will not disturb the trial court’s determination absent a clear abuse of discretion based upon the record as a whole and the arguments in their entirety. (People v. Boyd (1980), 88 Ill. App. 3d 825, 410 N.E.2d 931.) After thoroughly reviewing the record we find any error which may have been committed would not warrant a reversal. People v. Nilsson (1970), 44 Ill. 2d 244, 255 N.E.2d 432, cert. denied (1970), 398 U.S. 954, 26 L. Ed. 2d 296, 90 S. Ct. 1881.

Fifth, defendant contends that he was denied his due process right to knowingly and intelligently exercise his right to trial. He urges that his sentence must be reduced from natural life to 80 years because he was informed by the trial judge, prior to plea negotiations, that the maximum sentence he could receive would be 80 years.

The record shows that before the plea bargaining conference, the trial judge admonished defendant that,

“[ujnder certain circumstances, for instance if you have a history of prior delinquency of criminal activity, or if an extended term is necessary to determine — deter others from committing the same crime, or the crime is accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, the maximum number of years that the court could assess under an extended term would become eighty years.”

Defendant was subsequently offered a 50-year term in exchange for a guilty plea, but declined the offer. Following trial and arguments on sentencing, the trial judge stated that because the victim was savagely mutilated, he must “sentence this defendant to the greatest possible penalty under the law; and that is confinement for the rest of his natural life.”

The State argues that defendant has waived this issue since it was not specifically set forth in his motion for a new trial. However, Supreme Court Rule 615 (87 Ill. 2d R. 615) provides that plain errors affecting substantial rights may be addressed although they were not brought to the trial court’s attention. The exercise is discretionary by the reviewing court. (People v. Benniefield (1980), 88 Ill. App. 3d 150, 410 N.E.2d 455.) In the interest of justice and fairness we choose to address the issue.

The United States Supreme Court has recognized that plea bargaining is an essential component of the administration of justice. (Santobello v. New York (1971), 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495.) Brodenkircher v. Hayes (1978), 434 U.S. 357, 54 L. Ed. 2d 604, 98 S. Ct. 663, stands for the proposition that defendants who make knowingly, voluntary and intelligent choices to risk increased sanctions rather than plead guilty pursuant to a plea bargain will be held to that choice. In so holding, Bordenkireher and subsequent cases, address situations wherein a plea bargaining session resulted in defendant pleading guilty.

Illinois Supreme Court Rule 402(a)(2) (87 Ill. 2d R. 402(a)(2)), as interpreted by this court, also provides that the possible penalties must be known to the defendant, on the record, at the time of his plea of guilty. (Emphasis added.) (People v. Lundeen (1977), 55 Ill. App. 3d 799, 371 N.E.2d 329.) Rule 402(a)(2) does not address any other situation wherein the judge is required to inform defendant of potential sentences. In the instant case, defendant chose not to accept the State’s offer. He was afforded the constitutional safeguards inherent in exercising his sixth amendment rights. Moreover, we find nothing in our research to indicate that the trial judge is obligated to inform defendant of the possible sentences defendant may receive for a crime unless that defendant has chosen to plead guilty. Furthermore, defendant was represented by competent counsel at the plea bargaining conference and throughout the trial. Therefore, we find that defendant’s sentence to a term of natural life must stand.

Finally, defendant contends that the totally unbridled discretion, vested in the trial judge, to sentence a defendant to a term of natural life rather than an extended term violates the equal protection clause guaranty of equality of punishment. Because defendant’s contention was not raised at either the sentencing hearing or in his motion for a new trial, the issue is waived. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Assuming there had been no waiver, we find no merit in defendant’s contention. The identical issue was recently considered by the Appellate Court, First District, in People v. Cartalino (1982), 111 Ill. App. 3d 578. The court found that the merits of defendant’s contention are unsupportable. We agree with the Cartalino holding. Further, we find that defendant’s remaining contentions are without merit.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

O’CONNOR and CAMPBELL, JJ., concur.


author: JUSTICE O’CONNOR

text:
    MILDRED MACK, Plaintiff-Appellant, v. BENJAMIN SEAMAN et al., Defendants-Appellees.
    First District (1st Division)
    No. 82—0169
    Opinion filed February 28, 1983.

      David G. Wilkins and James M. Sulzer, both of Strauss, Sulzer, Shopiro & Wilkins, of Chicago, for appellant.
    Morgan, Tuchow & Karzov, of Chicago (Arnold J. Karzov and Philip S. Witt, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff-buyer brought suit to rescind a contract for the sale of a dwelling structure by reason of defendants-sellers’ failure to comply with “An Act relating to installment contracts to sell dwelling structures” (111. Rev. Stat. 1979, ch. 29, par. 8 — 21 et seq.) (hereinafter referred to as “Code Violation Disclosure Act”). The Act defines “installment contract” and provides that contracts for deeds shall become voidable at the election of the buyer if a certificate regarding government dwelling code violations is not attached to the contract or if the seller does not warrant in the contract either that he has received no notice of code violations within 10 years of the contract date or that all such notices (and violations) are disclosed in the contract. (111. Rev. Stat. 1979, ch. 29, par. 8.22.) Defendants do not deny that the subject transaction falls within the definition of installment contract set forth in the statute, nor is there any factual dispute as to defendants’ noncompliance with the Act, but, rather, defendants contend that the provisions of the statute are inapplicable to the contract at hand. Defendants claim exemption from the Code Violation Disclosure Act requirements by reasoning that the subject transaction, which involves property held in a land trust, does not fall with the “common and ordinary definition” of a real estate installment contract, as codified in section 1 of “An Act in relation to certain contracts involving property held in land trusts and providing penalties for the violation thereof” (111. Rev. Stat. 1979, ch. 29, par. 8.31) (hereinafter referred to as “Land Trust Disclosure Act”). Unlike the definition provided in the Code Violation Disclosure Act, which makes no distinction as to when title to the property passes, the Land Trust Disclosure Act applies only to situations where title to property is retained by the seller until all or a specified portion of the purchase price is paid. Defendants argue that because the instant transaction contemplated the conveyance of title to plaintiff-buyer at closing, with defendants-sellers to take a purchase money mortgage to cover part of the purchase price, it does not fall within the latter definition and, therefore, is not an installment contract.

Defendants’ contention is that the very existence of thé latter more restrictive definition creates an ambiguity as to the former, and necessarily supersedes it. Defendants also contend that such an interpretation is consistent with the policy behind the Code Violation Disclosure Act.

The trial court originally denied defendants’ motion to strike and dismiss plaintiff’s fourth amended complaint and subsequently denied plaintiff’s motion for judgment on the pleadings on count VI, which is the subject of this appeal. Upon hearing of the plaintiff’s motion for clarification of its two earlier rulings, the trial court dismissed plaintiff’s count VI, based in part on its reasoning that when a term has been used in “various related statutes” an interpretation of those terms must be given consistent or similar meanings. The court also “noted parenthetically” that the property here was sold “as is,” signifying an awareness by both parties of the absence of warranties. We disagree with the trial court’s assessment and reverse, based on our finding that the two acts have unrelated and distinct purposes and that a broader definition in one act and a more restrictive definition in the other are reasonably designed to carry out the different mandates of each statute.

It is well settled that statutory language must be given its plain, ordinary meaning and, in enforcing statutory provisions, courts are bound by the clear and unambiguous language of the statute itself. (Chicago-Midwest Meat Association v. City of Evanston (1981), 96 Ill. App. 3d 966, 969, 422 N.E.2d 205; Illinois Racing Board v. Arlington Park Thoroughbred Race Track Corp. (1979), 76 Ill. App. 3d 289, 292, 395 N.E.2d 93.) Where, however the language employed is susceptible of different interpretations, it is incumbent upon courts to construe and interpret the statute so as to effect the intentions of the legislature. In order to ascertain that intent, it may be necessary to look beyond express words and to consider the prospective and remedial objectives or purpose to be served by the statute. Illinois Racing Board v. Arlington Park Thoroughbred Racing Corp. (1979), 76 Ill. App. 3d 289, 292; Parliament Insurance Co. v. Department of Revenue (1977), 50 Ill. App. 3d 341, 346, 365 N.E.2d 667, appeal denied (1977), 66 Ill. 2d 631.

It is also fundamental that the legislature has the power to articulate reasonable definitions of any terms within its enactment and that such definitions for the purposes of its acts will be sustained to the exclusion of hypothetical indulgences. (Chicago-Midwest Meat Association v. City of Evanston (1981), 96 Ill. App. 3d 966, 969; Bohm v. State Employees’ Retirement System (1949), 404 Ill. 117, 88 N.E.2d 29.) In addition, separate acts with separate purposes need not define similar terms in the same way, but, rather, the same word may mean one thing in one statute and something different in another, dependent upon the connection in which the word is used, the object or purpose of the statute and the consequences which probably will result from the proposed construction. People ex rel. De Boer v. Geary (1944), 323 Ill. App. 32, 39, 54 N.E.2d 840; Gormley v. Uthe (1886), 116 Ill. 643, 648, 7 N.E. 73, affirmed (1890), 133 U.S. 655, 33 L. Ed. 776, 10 S. Ct. 415.

As used in the Code Violation Disclosure Act (unless the context requires otherwise):

“ ‘Installment contract’ means any contract or agreement, including contracts for deeds, bonds for deeds or any other sale ■ or legal device, whereby a contract seller agrees to sell and a buyer agrees to buy a dwelling structure, wherein the consideration for such sale is payable in installments for a period of at least one year after buyer takes possession of the dwelling structure and the contract seller continues to have an interest, or security for the purchase price or otherwise in that property.” (111. Rev. Stat. 1979, ch. 29, par. 8.21(e).)

“Contract seller” is defined in the Act as “the owner of a legal or beneficial interest in a dwelling structure, or the owner’s agent who executes an installment contract to sell a dwelling structure for the owner.” (111. Rev. Stat. 1979, ch. 29, par. 8.21(d).) Section 2 relates to the necessary certificate of compliance regarding dwelling code violations (or alternative warranty of no notice of violations) and specifically states that the requirements of this section cannot be waived by either party. 111. Rev. Stat. 1979, ch. 29, par. 8.22.

The subject transaction clearly fulfills the two criteria of section 1 for installment sales: the contract entered into between plaintiff and defendants provided for a payment term of 10 years and a retention by defendant-sellers of a purchase money mortgage as “security” for the purchase price. The statutory definition does not relate to when title passes or who holds title to the property, but requires only that the seller maintains “security for the purchase price.” The plain meaning of the term “security” is “[protection; assurance; indemnification *** usually applied to an obligation, pledge, mortgage, deposit, lien, etc., given by a debtor in order to assure the payment or performance of his debt, by furnishing the creditor with a resource to be used in case of failure in the principal obligation. ***” (Black’s Law Dictionary 1216 (5th ed. 1979).) The specific words of a statute are the best indicators of the legislative intent behind the enactment. (Parliament Insurance Co. v. Department of Revenue (1977), 50 Ill. App. 3d 341, 345.) It is clear from the unambiguous language of the statute itself that the code violation disclosure requirements of section 2 were intended to apply to the specific situation before us. (Ill. Rev. Stat. 1979, ch. 29, par. 8.22.) We believe this determination to be consistent with the remedial objectives of the Act.

The purpose of the Act, which also applies to property held in land trusts, is to force the seller to furnish information for the protection of the buyer as to the condition of the property he is buying without requiring that buyer to search the records or cause an inspection of the house for possible violations of municipal or county ordinances, as well as of other governmental dwelling authorities, such as State health and fire protection and environmental protection agencies. (Shanle v. Moll (1974), 25 Ill. App. 3d 113, 116, 323 N.E.2d 148.) As the trial court correctly recognized, “installment sales” are by their very nature susceptible to a greater degree of seller overreach than are traditional real estate sales. Unlike the traditional sale, there is no third-party bank or lending institution involved in the typical installment sale or purchase-money mortgage situation upon whose experience and self-interest a buyer can also rely for protection. We find that the broad definition of “installment sales” as set forth in section 1 (Ill. Rev. Stat. 1979, ch. 29, par. 8.21) was specifically designed to give added protection to buyers in these situations.

In contrast, defendants urge application of the statutory definition of “real estate installment contract” set forth in the Land Trust Disclosure Act, which includes

<<*** any agreement or contract for a trustee’s or warranty-deed, or otherwise, under which the purchase price of residential property is to be paid in installments over a period in excess of 5 years with title to the property to be conveyed to the buyer upon his payment of the purchase price or a specified portion thereof.” (111. Rev. Stat. 1979, ch. 29, par. 8.31.)

This section classifies which installment contracts will be subject to rescission (voidable at the purchaser’s option): if the property being sold is under a land trust; if the seller does not disclose the designation of the trust, the names of the trustee and beneficiaries; and if the contract is not signed by the parties having power of direction. (111. Rev. Stat. 1979, ch. 29, par. 8.32.) The apparent statutory purpose here is to aid the buyer to gain knowledge of the existence of a land trust in order to protect him from mistakenly dealing with a beneficiary rather than the trustee, who is the proper party to contract. See Madigan v. Buehr (1970), 125 Ill. App. 2d 8, 260 N.E.2d 431; Gulitz, Buyer and Seller Protection in Residential Contracts for Deed, 69 Ill. B. J. 310 (1981).

It is clear that the two statutes were enacted at different times, for distinctly different purposes, and we are bound by their mandate to enforce the words of each as plainly written. Defendants failed to comply with the statutory directive (111. Rev. Stat. 1979, ch. 29, par. 8.22) by failing to give notice of building code violations. Because the Act specifies that the conditions of section 2 (111. Rev. Stat. 1979, ch. 29, par. 8.22) cannot be waived by either party, this omission made the contract voidable at plaintiff’s option. Plaintiff is entitled to the return of her earnest money.

For the foregoing reasons the judgment of the trial court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

GOLDBERG and McGLOON, JJ., concur.


author: JUSTICE SULLIVAN

text:
    INTER-INSURANCE EXCHANGE OF THE CHICAGO MOTOR CLUB, Plaintiff-Appellee, v. STATE FARM INSURANCE COMPANY et al., Defendants.—(Frank M. Foster, Defendant-Appellant.)
    First District (5th Division)
    No. 82—1891
    Opinion filed March 4, 1983.

      Eileen Kavanagh, of Chicago (J. Dillon Hoey and H. Thomas Lenz, of counsel), for appellant.
    Christie E. Smith and John J. O’Connor, both of Chicago, for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

In an action for declaratory judgment, plaintiff’s motion for summary judgment was granted with a holding that Frank M. Foster (defendant) was precluded by an “other insurance” clause from recovering under an automobile insurance policy issued to him by plaintiff. In this appeal, defendant contends that he is entitled to both uninsured motorist and medical payments benefits under that policy.

An uninsured motorist struck and injured defendant and Raymond Kaminski (Kaminski) as they stood next to a parked automobile owned by Kaminski and insured by State Farm Insurance Company (State Farm). State Farm refused to extend uninsured motorist coverage to defendant, contending that he was not insured under the terms of its policy. Defendant then made a claim under his own policy issued by plaintiff which refused to honor the claim and then brought this action seeking a declaration of the rights of the parties with respect to the two policies and a finding that State Farm was obligated to provide uninsured motorist benefits to defendant.

The parties filled cross-motions for summary judgment on the issue of coverage under the uninsured motorist provisions of the two policies. State Farm sought a declaration that its policy did not apply because defendant was not in, on, or alighting from Kaminski’s vehicle at the time of the accident and therefore was not a defined insured under its policy. Plaintiff asked the court to determine that its policy did not apply on the grounds that defendant had not complied with its notice requirements and that the injury was covered by the State Farm policy. Defendant requested a finding that the uninsured motorist provisions of both policies applied, and his motion also contained an allegation that he was entitled to medical payments benefits under a separate provision of plaintiff’s policy. Thereafter, defendant counterclaimed for declaratory judgment against plaintiff and State Farm, seeking a determination that he is entitled to uninsured motorist and medical payments benefits under plaintiff’s policy as- well as uninsured motorist benefits under the State Farm policy. The record contains no answer by plaintiff to this counterclaim.

The uninsured motorist coverage of plaintiff’s policy provides for payment of “all sums which the insured *** shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury *** sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile ***.” Payment thereunder is limited by an “other insurance” clause, which provides in relevant part:

“With respect to bodily injury to an insured while occupying an automobile not owned by the Subscriber, the insurance under [the uninsured motorist coverage] shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.”

A separate section of plaintiff’s policy, entitled “Expenses for Medical Services,” provides for payment of “all reasonable expenses incurred within one year from the date of accident *** to or for the Subscriber *** who sustains bodily injury *** caused by accident, *** through being struck by an automobile ***.” This coverage, too, is limited by an “other insurance” clause, but this clause provides:

“If there is other automobile medical payments insurance against a loss covered by [the medical payments provision] of this policy the Exchange shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible automobile medical payments insurance ***.”

At a hearing on the cross-motions for summary judgment, the trial court noted that the issue to be decided was whether defendant, at the time of the accident, came within the definition of “occupant” contained in the State Farm policy; that is, whether he was “on, upon or alighting from” Kaminski’s vehicle when struck by an uninsured motorist. Defendant also argued that he should be allowed to stack coverage under the two uninsured motorist provisions, but no mention was made of the medical payments benefits raised in his motion and sought in his counterclaim as due him under a separate provision of plaintiffs policy.

The trial court, in denying summary judgment to State Farm, found that defendant was an occupant of Kaminski’s vehicle at the time in question, and thus that State Farm’s policy covered defendant’s claim. In granting summary judgment to plaintiff, the court held that its policy does not apply and that the “other insurance” provision contained in plaintiff’s policy precluded stacking with the State Farm policy. Defendant appeals only the grant of summary judgment to plaintiff. No other appeals have been taken from this order.

Opinion

Defendant first contends that he is entitled to recover uninsured motorist benefits under both policies. He acknowledges that the Illinois Supreme Court established a contrary rule in Morelock v. Millers’ Mutual Insurance Association (1971), 49 Ill. 2d 234, 274 N.E.2d l, and Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill. 2d 71, 269 N.E.2d 97, but argues that subsequent decisions of that court mandate reconsideration and overruling of Morelock and Putnam.

In Putnam, the court considered an “other insurance” clause virtually identical to that in the instant action. There, the plaintiffs were passengers in a car owned by a friend and insured by Hartford Accident and Indemnity Company when it was struck by an uninsured motorist. Hartford covered all injuries arising from the accident to the extent of the $20,000 per accident limit of its uninsured motorist coverage, and each plaintiff received a pro rata share of $7,500. Plaintiffs then sought compensation under their own uninsured motorist coverage with New Amsterdam Casualty Company to the extent that their damages exceeded the $7,500 recovered from Hartford. The court, finding that the “excess-escape” limiting clause of the New Amsterdam policy was clear and unambiguous, held that plaintiffs were precluded from recovering under it.

Morelock again considered an “other insurance” clause identical to the one in the instant action and determined that it was not contrary to public policy. The court noted that “[construing an insurance contract accurately and giving it the effect which its language clearly commands, is not ipso facto a breach of public policy merely because it disappoints the innocent victim of an uninsured motorist.” 49 Ill. 2d 234, 238, 274 N.E.2d 1, 3.

Defendant maintains that the court in Morelock and Putnam was using a “Strict textual” approach in deciding that the clause in question was not ambiguous and did not contravene public policy. He argues that the court should have considered the factual context or the reasonable expectations of the policyholders, an approach he insists was adopted by the court in subsequent decisions.

Initially, we note that once our supreme court has declared the law on a point, we are bound by that decision (Vinke v. Artim Transportation System, Inc. (1980), 87 Ill. App. 3d 400, 408 N.E.2d 1112), and it can be overruled only by a subsequent decision of the supreme court (Rusher v. Smith (1979), 70 Ill. App. 3d 889, 388 N.E.2d 906; Benza v. Shulman Air Freight (1977), 46 Ill. App. 3d 521, 361 N.E.3d 91). In Putnam, the supreme court confronted the same issue raised here by defendant, involving the same limitation clause and the same factual situation, and decided that the clause at issue was not ambiguous and did not contravene public policy. Subsequent supreme court decisions, far from overruling Putnam, as argued by defendant, have either distinguished it (Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247), or cited it extensively (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539). Therefore, we are bound by the Putnam decision, which is dispositive of the issue before us.

Furthermore, the cases defendant relies on in asserting that subsequent decisions require a reexamination of Putnam involve different factual situations. The supreme court has found a limiting clause ambiguous where multiple policies were issued by the same insurer to one insured (Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, 370 N.E.2d 1044; Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247) or to members of the same household (Kaufmann v. Economy Fire & Casualty Co. (1979), 76 Ill. 2d 11, 389 N.E.2d 1150). However, we have distinguished these cases and adhered to the rule established in Putnam where the policies in question, as here, were issued by different insurers “to insureds who were entirely different from each other, with no common connection other than the fact that each policy covered [the injured person] as an insured” at the time of the accident. Wilhelm v. Universal Underwriters Insurance Co. (1978), 60 Ill. App., 3d 894, 899, 377 N.E.2d 62, 65.

Defendant also argues that we must consider the reasonable expectations of the parties and the so-called “premium rule” which states- that “when premiums have been paid for separate policies, it seems both equitable and desirable to- permit recovery under more than one policy until the claimant is fully indemnified.” (Maid. v. Illinois Farmers Insurance Co. (1981), 101 Ill. App., 3d 1065, 1067, 428 N.E.2d 1139, 1141.) However, as recent cases have noted, these considerations are appropriate only where the language of the clause is ambiguous, for they are rules of construction. Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539; Maid v. Illinois Farmers Insurance Co. (1981), 101 Ill. App. 3d 1065, 428. N.E.2d 1139.

Finally, we note that the rule- established in Putnam was recently considered by the supreme court in Menke v. Country. Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539. There, the court was asked to construe an “other insurance” clause in an uninsured motorist provision which limited an insured’s recovery under multiple policies issued by the same insurer. The clause considered was worded similarly to the clause in the instant action, and the court held that it was to be applied as written because it was neither ambiguous nor contrary to public policy. In the light of this most recent reaffirmation of the principles established in Putnam, we do not believe that any reconsideration of the law is mandated.

Defendant next contends that the court’s order denying him any recovery under plaintiff’s policy is erroneous. He maintains that, even if recovery is precluded under the uninsured motorist provisions of that policy, he is still entitled to recover under the medical payments provision, since the “other insurance” clause therein does not contain the same limitations. Plaintiff argues that this issue is not properly before us, since it was never presented to nor considered by the trial court. It maintains that even if the issue was raised by the pleadings, defendant’s failure to pursue that issue before the trial court precludes our review.

The parties are not in agreement on the question whether defendant’s recovery under the medical payments provision of plaintiff’s policy was decided by the trial court in these cross-motions for summary judgment. It is apparently defendant’s position that the issue was considered, but decided adversely to him, while plaintiff contends that the issue was not before the trial court. Therefore, we must first determine what issue was presented by the various motions for summary judgment.

State Farm’s motion for summary judgment sought a declaration “that there is no coverage afforded to [defendant] under the Uninsured Motorist provisions” of its policy. Plaintiff’s motion asked for a ruling “that [State Farm] provides Uninsured Motorist Coverage to [defendant] and that [plaintiff! provides no [uninsured motorist coverage] in this instance to [defendant] ***.” Paragraph 7 of defendant’s motion for summary judgment recites that a claim was made against plaintiff for uninsured motorist and medical payments benefits, and paragraph 9 sets forth a portion of the medical payments provision of plaintiff’s policy. However, defendant asks the court to declare only “that there is coverage afforded to [defendant] under the Uninsured Motorist Provisions of the pertinent insurance policies of Plaintiff *** and [State Farm] ***.”

Thus, it appears that the sole issue raised in the cross-motions for summary judgment concerned the uninsured motorist provisions of the two policies. This conclusion is supported by the trial court’s statement, at the hearing on these motions, that “[t]he issue in the case is *** a question of whether or not the applicable provision of the insurance policy which provided for insurance coverage for accidents suffered when an insured is on, upon or alighting from his motor vehicle applies in this case.” None of the parties objected to this characterization of the motions, or sought to argue the applicability of any provision other than the uninsured motorist benefits. Therefore, we believe that the single issue before the court on these motions was recovery of uninsured motorist benefits.

While we do not agree with defendant that the medical payments issue has been decided by the trial court, neither do we accept plaintiff’s contention that defendant waived this issue by not raising it in the trial court. This contention assumes that the court’s order was a final adjudication of all matters pending before the court — an assumption with which we are not in accord. In this regard, we initially note that orders must be interpreted within the context of the motions which accompany them (Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 424 N.E.2d 911), and because the sole question before the trial court concerned the uninsured motorist provisions, the court’s order precludes defendant’s recovery only under those provisions of plaintiff’s policy. Furthermore, defendant filed a counterclaim seeking a declaratory judgment of his rights under the uninsured motorist provisions of both policies and under the medical payments provisions of plaintiff’s policy. While aspects of that counterclaim have been adjudicated on the motions for summary judgment, that portion dealing with the medical payments provisions is still pending. The court could not have granted summary judgment on that issue for either party, since it could not grant a motion which was never made by any of the parties. Crooks Terminal Warehouses, Inc. v. American National Bank & Trust Co. (1980), 83 Ill. App. 3d 693, 404 N.E.2d 889.

Finally, we do not believe that defendant’s failure to raise the issue of medical payments benefits in its motion for summary judgment was fatal to its rights of recovery thereunder, as plaintiff seems to imply, for section 2 — 1005 of the Code of Civil Procedure (HI. Rev. Stat. 1981, ch. 110, par. 2 — 1005), formerly section 57 of the Illinois Civil Practice Act (111. Rev. Stat. 1979, ch. 110, par. 57) specifically provides that either party may move “for a summary judgment in his or her favor as to all or any fart of the relief sought.” (Emphasis added.) Therefore, defendant’s motion here should be treated as being for partial summary judgment, and it is immaterial that there are other claims before the court upon which defendant might obtain relief. (Brewer v. Daubert Chemical Co. (1979), 72 Ill. App. 3d 718, 391 N.E.2d 110.) Moreover, a partial summary judgment is a final order which is appealable where, as here, there is a finding under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)) of “no just reason for delaying enforcement or appeal.” Bloom v. Landy (1979), 72 Ill. App. 3d 383, 389 N.E.2d 1286.

For the foregoing reasons, the summary judgment for plaintiff is affirmed and the cause remanded for further proceedings.

Affirmed and remanded.

WILSON, P.J., and LORENZ, J., concur.

       We note that Morelock was subsequently overruled to the extent that it is in conflict with Kaufmann v. Economy Fire & Casualty Co. (1979), 76 Ill. 2d 11, 389 N.E.2d 1150. Kaufmann did not address the issue for which defendant cites Morelock; i.e., whether an “other insurance” .clause contravenes the public policy reflected in the uninsured motorist provisions of section 143a of the Illinois Insurance Code (111. Rev. Stat. 1979, ch. 73, par. 755a). Furthermore, the supreme court recently reached the same conclusion on the public policy question that it stated in Morelock, albeit without citation thereto. Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539.


text:
    HARTWIG TRANSIT, INC., Plaintiff-Appellee, v. ANTHONY MENOLASCINO, Defendant-Appellant.
    First District (5th Division)
    No. 81—3199
    Opinion filed February 18, 1983.

      Harry J. Smith, Jr., of River Grove (Lawrence J. Czepiel, of counsel), for appellant.
    Jacque L. Meister, of Barrington (Sidney Z. Karasik, of counsel), for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from an order granting possession of leased premises to the lessor (plaintiff) in an action brought pursuant to the Forcible Entry and Detainer Act. (111. Rev. Stat. 1979, ch. 57, par. 1 et seq.) The lessee (defendant) contends that the trial court erred in finding that he breached the terms of the lease by refusing to execute a subordination agreement presented for his signature.

Plaintiff leased commercial property (the ground lease) from Harris Trust and Savings Bank, as trustee under a land trust (Harris) and then negotiated a sublease with defendant after informing him of the ground lease from Harris. Paragraph 15 of the sublease provides in relevant part:

“15. Subordination to Ground Lease and Mortgage.
This lease shall be subject and subordinate at all times to any ground or underlying lease, to the lien of any mortgage which may now or hereafter affect the leased property, and to all renewals, modifications, amendments, consolidations, replacements, and extensions thereof. The Lessee will execute and deliver any instrument which may be reasonably required by the Lessor in confirmation of such subordination promptly upon the Lessor’s request. The Lessor, however, will exercise its best efforts to arrange with the holder of any such underlying lease or mortgage for an agreement that if, by dispossess [sic], foreclosure, or otherwise such holder, or any successor in interest, shall come into possession of the leased property, or shall become the owner of the leased property, or take over the rights of the Lessor in the leased property, it will not disturb the possession, use, or enjoyment of the leased property by the Lessee, its successors or assigns, nor disaffirm this lease or the Lessee’s rights or estate hereunder, so long as all of the obligations of the Lessee are fully performed in accordance with the terms of this lease. Lessor covenants that should it acquire title to the demised premises, any subsequent conveyance shall be subject to this lease.”

The sublease further provides that if a default occurs, including “[l]es-see’s default in performing any of the *** covenants and agreements,” the lessor may elect to terminate the lease.

Several months after the parties entered into the sublease, plaintiff, in accordance with paragraph 15 thereof, requested defendant to sign a lease amendment described by it as a confirmation of subordination, which was a substitution for paragraph 15 of the sublease. The lease amendment, in relevant part, was as follows:

“15. This Lease shall be subject and subordinate at all times to the terms of the Harris-Hartwig Lease, including any amendment thereto heretofore or hereafter made. In the event that Lessor is in default under the Harris-Hartwig Lease, then this lease shall be deemed in default and if the Harris-Hartwig Lease is terminated by default or otherwise, including agreement by the parties thereto, except for purchase by Hartwig of the premises, then this lease shall likewise be terminated and Lessee, upon ten days written notice from Harris Trust and Savings Bank, as Trustee, Lessor of the Harris-Hartwig lease, of such termination shall immediately vacate such premises. If Lessee fails to vacate said premises upon termination as above, Lessee shall be liable for all costs, including but not limited to, attorneys fees, damages, etc. as set forth in paragraphs 17 and 28(a) of this Lease.”

When defendant refused to sign the amendment, after receiving notice that his lease would be terminated if he did not do so, plaintiff instituted the present action seeking to repossess the property.

At trial, plaintiff’s treasurer, Hartwig, testified that he discussed a proposed lease amendment with defendant, who agreed to sign whatever was needed. After its preparation by Harris, the amendment was approved and signed by plaintiff and presented to defendant for his signature. Despite repeated requests, defendant did not sign it and gave no reason for refusing to do so. Hartwig admitted that the lease amendment omits the portion of paragraph 15 in the sublease requiring plaintiff to use its best efforts to secure a nondisturbance agreement on defendant’s behalf if its ground lease terminated.

Defendant testified in effect that he did not sign the lease amendment because it did not merely subordinate the sublease to the ground lease but totally contradicted paragraph 15 in the sublease. He acknowledged that, during negotiations of the sublease, he was represented by an attorney and understood its terms.

The trial court granted possession of the premises to plaintiff, and this appeal followed.

Opinion

Defendant first contends that sublease paragraph 15 required him to confirm subordination of the lease only if the ground lease is terminated or the property is sold at foreclosure, neither of which occurred. In support of this argument, he cites an explanation of a similar subordination clause contained in a legal form book which interprets such clauses as an agreement by the lessee to attorn to a purchaser at foreclosure or to a ground lessor upon termination of the ground lease.

Interpretation of a lease is a question of law (Advertising Checking Bureau, Inc. v. Canal-Randolph Associates (1981), 101 Ill. App. 3d 140, 427 N.E.2d 1039) to be determined by this court independently of the trial court’s judgment (Illinois Valley Asphalt, Inc. v. LaSalle National Bank (1977), 54 Ill. App. 3d 317, 369 N.E.2d 525) and in accordance with the general rules applicable to contract construction (Sol K. Graff & Sons v. Leopold (1980), 92 Ill. App. 3d 769, 416 N.E.2d 275). Our principal function in construing a lease is to give effect to the intention of the parties thereto (Kurek v. State Oil Co. (1981), 98 Ill. App. 3d 6, 424 N.E.2d 56) through consideration of the instrument as a whole (One Hundred South Wacker Drive, Inc. v. Szabo Food Service, Inc. (1975), 60 Ill. 2d 312, 326 N.E.2d 400) and by giving the words used by the parties their common and generally accepted meaning (American National Bank & Trust Co. v. Olympic Savings & Loan Association (1978), 60 Ill. App. 3d 722, 377 N.E.2d 255). However, where the language of the agreement is clear and unambiguous, we need not resort to judicial interpretation (Hoffman v. Clark Street Roadhouse, Ltd. (1979), 79 Ill. App. 3d 41, 398 N.E.2d 238), but extrinsic evidence may be considered to explain language which is reasonably susceptible to more than one meaning (Great Atlantic & Pacific Tea Co. v. LaSalle National Bank (1979), 77 Ill. App. 3d 478, 395 N.E.2d 1193).

The interpretation urged by defendant is not within the express language of paragraph 15 of the sublease, which provides that defendant was to execute and deliver any instrument “which may be reasonably required” in confirmation of subordination. While defendant has not argued that there is ambiguity in this provision, such a conclusion is inherent in his reliance on extrinsic evidence to establish the intention of the parties. However, even if we find some ambiguity in the language, for example, in the term “reasonably required,” the limitation which defendant would have us adopt is inconsistent with paragraph 15 when considered as a whole.

Paragraph 15 subordinates the sublease to any ground lease, to any present or future mortgage, and to “all renewals, modifications, amendments, consolidations, replacements, and extensions thereof.” Defendant argues that the last phrase refers only to mortgages, not to leases, citing Storybook Homes, Inc. v. Carlson (1974), 19 Ill. App. 3d 579, 312 N.E.2d 27, which holds that a qualifying phrase refers only to its last antecedent. However, it is our view that the instant case is distinguishable from Storybook Homes. Here, the quoted phrase is not a mere modifier, dependent for its grammatical existence on the word, phrase, or clause which it modifies; rather, it is a phrase grammatically equal with the two preceding phrases. (See Strunk & White, The Elements of Style 26 (3d ed. 1979).) Furthermore, in Storybook Homes, the court looked not only to grammatical structure, but also to logical meaning in interpreting the contract. Here, we believe the terms “renewal” and “modification” more logically refer to a lease than to a mortgage lien. Thus, a reading of paragraph 15 leads us to the conclusion that the sublease is subordinate to not only existing ground leases and mortgages, but also future mortgages and renewals or modifications of the ground lease. In any of these events, the lessor or mortgagee might require a confirmation that the sublease is subordinate to the new or modified mortgage or ground lease, and the narrow construction urged by defendant would preclude plaintiff from complying with such a requirement.

Moreover, the explanation suggested by plaintiff does not support his argument, for it clearly refers to the effect of subordination in general, rather than qualifying the sublessor’s right to require execution of an instrument confirming subordination. The source quoted explains that, in a subordination clause the tenant “subordinates [his] rights under the lease to the rights of the mortgage or ground lessor and agrees, upon request of a purchaser at a foreclosure sale following foreclosure, or a ground lessor following termination of the underlying lease, to attorn to such purchaser or ground lessor.” (Landlord-Tenant Practice I, at 5 — 105 (111. Inst. Cont. Leg. Educ. 1979).) This explanation refers to the rights of parties other than the sublessor, who would have no need to request a confirmation of subordination once the property had been sold or his own lease terminated. Further, the explanation refers to an attornment; i.e., an acknowledgment by a tenant of his obligation to a new landlord (Arendt v. Lake View Courts Associates (1977), 51 Ill. App. 3d 564, 366 N.E.2d 1096) rather than to a confirmation of subordination.

Defendant next contends that the lease amendment is not a confirmation of subordination, but a modification of the sublease. He maintains that the amendment deprives him of certain rights and adds certain obligations contrary to paragraph 15 of the sublease which limits plaintiff’s right to demand execution of an instrument to a document confirming subordination of the sublease. Plaintiff does not dispute this, but maintains that the lease amendment is a proper confirmation. Therefore, we must determine the legal effect of the amendment, which is a question of law. (Illinois Valley Asphalt, Inc. v. LaSalle National Bank (1977), 54 Ill. App. 3d 317, 369 N.E.2d 525; compare Dayenian v. Americal National Bank & Trust Co. (1980), 91 Ill. App. 3d 622, 414 N.E.2d 1199 (whether document was an assignment or a sublease was a question of law).) A confirmation makes Something firm or certain, or gives new assurances of truth or certainty; it may also complete or establish something which was imperfect or uncertain, or remove past doubts (Black’s Law Dictionary 270 (5th ed. 1979)), whereas a modification changes something, either by adding new elements or canceling others, usually without changing the general purpose and effect of the original (Black’s Law Dictionary 905 (5th ed. 1979); see Union Electric Co. v. Illinois Commerce Com. (1968), 39 Ill. 2d 386, 235 N.E.2d 604).

In the instant case, the lease amendment in many respects merely indicates with greater certainty the consequences of subordination, i.e., that if the ground lease is terminated, defendant’s sublease is also terminated. Defendant, however, maintains that certain provisions actually change paragraph 15 of the sublease. He argues that the amendment, unlike paragraph 15, makes his lease subordinate to any subsequent amendments to the ground lease and provides for termination of the sublease if the ground lease is terminated by agreement between plaintiff and Harris. As noted above, however, paragraph 15 does subordinate defendant’s sublease to amendments of the ground lease; therefore, the amendment does not change this provision, but makes it clearer, which is one function of a confirmation. Furthermore, because defendant’s sublease is subordinate to the ground lease, it would terminate when the ground lease terminates, whether by expiration of the term, by default, or by agreement between Harris and plaintiff. (Bellows v. Ziv (1962), 38 Ill. App. 2d 342, 187 N.E.2d 265.) Thus, the amendment in this respect merely makes explicit that which is implicit in paragraph 15 — the consequences of subordination.

Defendant also argues that the amendment eliminates rights which he has under the sublease and adds provisions which are not contained therein. He points out that in paragraph 15, plaintiff promises to use its best efforts to obtain a nondisturbance agreement on defendant’s behalf if its ground lease is terminated but that the amendment omits this promise. While admitting this change, plaintiff argues it is not a substantial right since there was no guarantee that it could deliver a nondisturbance agreement. However, we believe the nature of the change is immaterial, since the right in question was part of the bargained-for exchange, and we presume that everything in a lease was inserted deliberately and for a purpose. (Arrington v. Walter E. Heller International Corp. (1975), 30 Ill. App. 3d 631, 333 N.E.2d 50.) Moreover, paragraph 15 allows only a confirmation and not a modification, and under it defendant has a right to demand performance from plaintiff and may bring suit for damages if plaintiff fails to tender that performance. Because this right is lost if defendant signs the amendment, that aspect is clearly a modification.

Further, the amendment gives certain rights to Harris which are not necessarily incident to subordination of defendant’s sublease and which are not contained in paragraph 15 or elsewhere in the sublease. Under the amendment, defendant must immediately vacate “upon ten days written notice from Harris,” a time limit not contained in the original sublease. In addition, under the amendment, if Harris must undertake repossession proceedings, defendant becomes liable to Harris “for all costs, including but not limited to, attorney fees, damages, etc., as set forth in paragraphs 17 and 28(a) of the [sublease.” Thus, Harris, not an original party of the sublease, is given rights thereunder for which it provides no consideration and which it did not previously have; since, in the absence of a statute or a contractual agreement, it would ordinarily not be entitled to recover attorney fees or the usual expenses of litigation. Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859.

The amendment, then, has elements of both a modification and a confirmation, and defendant could not sign one part without also accepting the other. Since, under paragraph 15, plaintiff is entitled only to a confirmation, defendant did not breach the sublease by refusing to execute the amendment, and plaintiff was not entitled to possession of the premises.

Finally, we note defendant’s contention that there was no proof the amendment was reasonably required by plaintiff, since the only testimony was that Harris requested execution of the substitution.

Whether a contract has been performed according to its terms is a question of fact (Illinois Valley Asphalt, Inc. v. La Salle National Bank (1977), 54 Ill. App. 3d 317, 369 N.E.2d 525), and the trial court’s findings will not be disturbed unless contrary to the manifest weight of the evidence (Weigel v. O’Connor (1978), 57 Ill. App. 3d 1017, 373 N.E.2d 421). Here, it is undisputed that Harris, plaintiff’s lessor, requested a confirmation of subrogation. Such a request will normally originate with a third-party lessor or mortgagee, since plaintiff itself would have no need for such confirmation. Therefore, we do not believe that the trial court’s implicit finding that plaintiff reasonably required a confirmation was contrary to the manifest weight of the evidence.

For the foregoing reasons, the order granting possession of the leased premises to plaintiff is reversed.

Reversed.

WILSON, P.J., and LORENZ, J., concur.