author: Mr. JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CECIL CHAMPION, Defendant-Appellant.
    Fourth District
    No. 17233
    Opinion filed November 13, 1981.
    Daniel D. Yuhas and Charles M. Schiedel, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lee J. Plummer, State’s Attorney, of Jerseyville (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE MILLS

delivered the opinion of the court:

Can a trial judge issue a “Certificate of Importance” in a criminal case?

Can he sua sponte order an appeal following a negotiated plea of guilty?

Negative — on both.

No authority.

On March 24, 1980, Champion was charged by information with aggravated battery in which it was alleged that on March 23 he had intentionally caused great bodily harm to Donald Estes by striking Estes in the face several times.

Some 14 months later — on May 22, 1981, Champion filed a motion for discharge based on an alleged violation of his right to a speedy trial. A hearing was held on this motion on June 2, 1981, and the motion was denied on June 4.

After a recess following the denial of the speedy trial motion, the court was informed that the defendant had decided to enter a negotiated plea. The court then carefully advised Champion of the nature of the charge, the possible penalties, his right to a jury or bench trial, the terms of the plea agreement, and the agreed sentence of 2 years. After finding a factual basis, the court then accepted Champion’s plea and sentenced him to a term of 2 years.

The trial judge then advised Champion that before he could appeal he would have to file a motion asking that the plea of guilty be set aside and that if that motion was allowed, and he went to trial, the misdemean- or case that had been dismissed by the State could be reinstated. The judge stated that any errors not set forth in the motion would be waived for purposes of appeal.

Then — Judge White made these comments:

“Gentlemen, I feel that this petition for discharge was of such importance, and that the law is sort of in a hazy condition, on my own motion I’m going to appoint the Appellate Defender to represent him on the ruling on the motion for discharge, and I’m going to let him appeal that on my own motion, whether he wants to or not. * * *.
So, on my own motion, e ” e I’m going to issue a Certificate of Importance out of the trial court to the Appellate Court of the Fourth District, and let those folks determine whether or not I was right in my ruling under the circumstances of this case.
Not going to hurt anything. If I’m right, then he’s got his negotiated plea; if I’m wrong, then he shouldn’t be penalized. If I’m reversed on that finding, then this whole thing will be set aside and that will be it.”

This concluded the proceedings. The same day, a notice of appeal was filed.

Well, these “folks” remand.

After correctly admonishing defendant as to the procedure necessary to effect an appeal from his plea, the trial court decided that, on its own motion, a “Certificate of Importance” (!) would be issued to this court so that the denial of the speedy trial motion for discharge could be reviewed. This perhaps well-intentioned — but equally misguided — action by the trial judge in fact deprived defendant of his right to appeal following a guilty plea. Supreme Court Rule 604(d) (Ill. Rev. Stat. 1979, ch. 110A, par. 604(d)) clearly mandates that no appeal may be taken following a plea of guilty unless the defendant, within 30 days of sentencing, files a motion to withdraw his plea in the trial court.

The trial judge attempted to fashion a novel method of review. But it won’t wash. Rule 604(d) is a model of lucidity and clarity: no appeal without first a motion to withdraw. Judge White meticulously advised defendant of this proper procedure, but then turned around and completely countermanded it — emasculated the admonishment — by sua sponte declaring a “Certificate of Importance” (for which we are aware of no authority) and ordering an appeal himself. He, quite effectively, destroyed the validity of the correct procedure by immediately fashioning an incorrect one. The second cancelled the first and defendant was left in limbo — as though he had not been properly advised at all as to his appeal rights.

Although a limited exception to Rule 604(d) exists where both the State and defendant agree that the record on appeal permits an evaluation of the merits of a motion to withdraw a guilty plea (People v. Petrovich (1979), 77 Ill. App. 3d 737, 396 N.E.2d 629), such is not the case here. Not only does this defendant argue that further proceedings in the circuit court are required herein, but the issue of a speedy trial has been neither briefed nor argued.

Defendant’s failure to file a motion to vacate is certainly understandable, given the action of the trial court. The only way to rectify the situation and to protect his appellate rights is to remand with instructions that he be allowed to file a motion to vacate if he so desires. The current state of the record raises at least a particle of a question as to whether Champion understood that his plea of guilty would waive any claim that he had been denied a speedy trial, and he did not receive any specific admonishments on this point.

Remanded with directions.

TRAPP, P. J., and GREEN, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE GREEN

license: Public Domain

text:
    THE DOCK CLUB, INC., d/b/a The N’Ferno, Plaintiff-Appellee, v. ILLINOIS LIQUOR CONTROL COMMISSION, Defendant-Appellant.
    Fourth District
    No. 17088
    Opinion filed November 19, 1981.
    Tyrone C. Fahner, Attorney General, of Chicago (Patricia Rosen, Assistant Attorney General, of counsel), for appellant.
    Burditt and Immel, of Springfield (Thomas J. Immel, of counsel), for appellee.
   Mr. JUSTICE GREEN

delivered the opinion of the court:

We hold here that a practice of plaintiff, The Dock Club, Inc., in operating a licensed dramshop, to sponsor as a promotion, “ladies nights” whereby only females but not males were permitted to purchase drinks at a price reduced from plaintiff’s regular price did not violate article VI, section 12b, of the Dramshop Act. That section provides:

“No licensee licensed under the provisions of this Act shall deny or permit his agents and employees to deny any person the full and equal enjoyment of the accommodations, advantages, facilities and privileges of any premises in which alcoholic liquors are authorized to be sold subject only to the conditions and limitations established by law and applicable alike to all citizens.” Ill. Rev. Stat. 1979, ch. 43, par. 133.

On January 18,1980, defendant, Illinois Liquor Control Commission, issued a citation and notice of hearing against plaintiff setting forth dates upon which “ladies nights” had been held by plaintiff and charging the practice to violate section 12b of the Dramshop Act. On October 8,1980, a hearing was held by defendant. On December 10, 1980, defendant issued an administrative order finding plaintiff to have violated section 12b and fining plaintiff $500. On January 7, 1981, defendant denied plaintiff’s petition for rehearing. On January 13, 1981, plaintiff filed a complaint under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) in the circuit court of Sangamon County. After a hearing, the circuit court reversed the administrative order on March 13, 1981. Defendant has appealed.

Prior to the institution of the administrative proceedings, defendant, had complained to plaintiff about its practice of holding “ladies nights.” On December 5,1979, plaintiff filed suit in the circuit court of Sangamon County seeking primarily a declaratory judgment approving its use of the “ladies night” promotion. That court issued an interlocutory order enjoining defendant’s pursuit of its citation proceedings then in process. On interlocutory appeal we reversed that order, holding that plaintiff was not entitled to relief prior to its exhaustion of its administrative remedies. Dock Club, Inc. v. Illinois Liquor Control Com. (1980), 83 Ill. App. 3d 1034, 404 N.E.2d 1050.

On appeal from the circuit court’s reversal of the administrative order, the defendant Commission maintains that under both the literal language of article VI, section 12b, of the Dramshop Act and well-settled rules of construction, the section prohibits a dramshop from establishing a price differential determined by the sex of the customer. Plaintiff responds, arguing: (1) defendant had no standing “to litigate the rights of nonexistent third parties,” (2) section 12b applies only to restriction upon entry and obtaining service in the establishment and does not prohibit charging different groups of people different prices for drinks, and (3) the imposition of the fine was improper even if a violation occurred.

We summarily refute plaintiff’s claim that defendant had no standing. Its theory arises from the decision in Illinois Liquor Control Com. v. City of Joliet (1975), 26 Ill. App. 3d 27, 324 N.E.2d 453, where the court held the Commission had no standing to challenge validity of a Joliet ordinance raising the drinking age to 21 years. The Commission claimed the rights of those 19 and 20 years of age were being violated, but the court stated the Commission had no standing to .vindicate the constitutional rights of third parties. Here, the issue was whether plaintiff was in violation of the Dramshop Act and article III, section 12(1) of the Act (Ill. Rev. Stat. 1979, ch. 43, par. 108(1)) which includes among the powers granted to defendant, the power to suspend or revoke licenses and to order fines against licensees for violation of the Act. Defendant was in the exercise of these statutory powers in conducting the instant administrative proceedings.

In examining the question of whether the practice of holding “ladies nights” was in violation of the Act, we are impressed with the lack of precedent. Article VI, section 12b, was part of the original Dramshop Act as adopted in 1934. No case involving a promotion by a dramshop whereby one class of customers may purchase drinks at reduced prices has been called to our attention, nor has any similar case arising under similar legislation concerning discrimination in the general furnishing of public accommodations. Ill. Rev. Stat. 1979, ch. 38, par. 13 — 2, repealed effective July 1,1980 (see Ill. Rev. Stat., 1980 Supp., ch. 68, par. 5 — 101).

The only nearly similar case from another jurisdiction is Magid v. Oak Park Racquet Club Associates, Ltd. (1978), 84 Mich. App. 522, 269 N.W.2d 661, where the defendant club had a policy of offering discounted annual memberships to women as a promotion to attract more female members. The Michigan statute prohibited such a facility from denying “full and equal accommodations, advantages, facilities, and privileges.” (Mich. Comp. Laws Ann. §750.146 (1968).) The court construed that section of the statute with other sections (Mich. Comp. Laws Ann. §750.147 (1968)) which provided for awards of damages upon “a withholding, refusal or denial” of public accommodations (84 Mich. App. 522, 527, 269 N.W.2d 661, 663). The court concluded that a cause of action arose only if there was a withholding, refusal, or denial of accommodations and did not arise from the existence of a price differential for membership.

Both sides discuss Dugans Bistro, Inc. v. Daley (1977), 56 Ill. App. 3d 463, 371 N.E.2d 1116, and Walton Playboy Clubs, Inc. v. City of Chicago (1962), 37 Ill. App. 2d 425,185 N.E.2d 719. Both cases concern the right of access to a dramshop. In the former case the court held that a trier of fact could conclude that a would be patron to a dramshop was deprived of her rights under article VI, section 12b, when she was required to furnish an unreasonable amount of identification before being allowed to enter. The court stated: “The statute forbids the licensee to deny any person the full enjoyment of the accommodation, advantages, facilities and privileges.” (56 Ill. App. 3d 463, 473, 371 N.E.2d 1116, 1124.) In Walton Playboy Clubs, Inc., the appellate court affirmed a portion of a declaratory judgment ruling that a dramshop did not violate article VI, section 12b, or more general legislation entitling all persons “to the full and equal enjoyment of the accommodation, advantages, facilities and privileges of * * * taverns ” # (Ill. Rev. Stat. 1959, ch. 38, par. 125.) The claimed discrimination arose from the dramshop’s requirement that all persons who entered the premises must have purchased a $50 membership, accompany one who had, or pay $50 upon seeking admission. The court noted that entry was conditioned upon a financial requirement applicable to all.

Legislation similar to article VI, section 12b, was enacted shortly after the Civil War (see Walton Playboy Club, Inc.) and has continued to this date with a most recent enactment being that of the Illinois Human Rights Act (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1 — 101 et seq.). As far as the public accommodations aspect of this legislation has been concerned, the focus of its enactment and of the decisions interpreting it has been upon restrictions that denied the use of places of public accommodations and denial of receipt of the services there provided. Little, if any, consideration has been given to the propriety of price differentials imposed to obtain the service. However, we cannot agree that article VI, section 12b, like the Michigan statute interpreted in Magid, has no reference to price differentials that might be charged for obtaining the services furnished by the establishment. Section 12b is not subject to other provisions limiting a cause of action arising thereunder to “a withholding, refusal or denial” of service.

The references in section 12b to the “enjoyment of the accommodations, advantages, facilities and privileges” of a dramshop obviously includes the opportunity to obtain a drink of intoxicating liquor within the establishment. The furnishing of the same is the very purpose for which the establishment has been licensed under the Dramshop Act. The crucial question is whether the price differential denies persons, not able to obtain the lower price, the “equal enjoyment” of the facilities. Clearly, if the higher price was exacted for the purpose of discouraging those charged the higher price from patronizing the establishment, or if it had that effect, it would deny them of the equal enjoyment. Here, however, the price charged males on ladies night was the regular established price and obviously not a price established for the purpose of discouraging their patronage. That charged females was a price reduced to a nominal sum and one obviously set for the purpose of encouraging their patronage.

Section 12b speaks of the dealings of dramshop operators with “any person.” It does not state that their dealings with any class or classes of customers or prospective customers are suspect and no case has so held. As pointed out by plaintiff, to hold the statute to prohibit the practice of on occasion offering drinks at reduced prices to females would, by analogy, require holding it to prohibit a similar offering to (1) persons of Irish descent on St. Patrick’s Day, (2) persons in the military or naval service on Armed Forces Day, (3) certain conventioneers when conventions are being held in the city, (4) senior citizens, or (5) members of any other groups. Almost all businesses, on occasion, offer reduced prices to some sort of group, usually for the purpose of obtaining their business. The lack of any litigation over the offering of prices less than the usual rate for nearly 50 years under the Dramshop Act and for over 100 years under the various public accommodation statutes of this State indicates no evil sought to be remedied occurred here. We conclude that section 12b was not violated.

Accordingly, we need not consider the propriety of the fine imposed. We affirm the circuit court’s reversal of the order of the defendant Commission.

Affirmed.

WEBBER and MILLS, JJ., concur.


text:
    HELEN M. RINGSTROM, Plaintiff-Appellant, v. LARRY ALLEN RINGSTROM, Defendant-Appellee.
    Fourth District
    No. 17203
    Opinion filed November 19, 1981.
    James Caleb Stanfield, of Paris, for appellant.
    M. Eugene Wright, of Danville, for appellee.
   Mr. JUSTICE MILLS

delivered the opinion of the court:

Marriage.

Divorce.

Remarriage.

Another divorce.

Husband now liable for child support arrearages under first decree?

No.

We affirm.

Plaintiff appeals the trial court’s order dismissing á rule to show cause why defendant should not be held in contempt for failing to pay child support arrearages for the years 1971 to 1974, and 1976 to 1977. The parties were originally married in 1965, separated in 1971, and a decree of divorce based on mental cruelty was entered by the trial court on June 15, 1971. A negotiated property settlement was approved by the court and custody of their minor children was granted to plaintiff, with defendant to pay child support in the amount of $150 per month.

On July 18,1977, the parties were remarried to each other. They were again divorced on May 25, 1978.

On October 30, 1980, plaintiff filed a petition for rule to show cause alleging that defendant had failed to pay child support for the years 1971, 1972,1973,1974,1976, and 1977. She alleges that from June 15,1971, until July 18,1977 — the date of a remarriage of the parties — defendant amassed child support arrearages in the sum of $6,800 after deducting payments of slightly more than $4,000 which he made during that period. Plaintiff asked the trial court to enforce the 1971 divorce decree requiring child support payments and a rule to show cause was entered by the trial court.

On January 28, 1981, a hearing was held on the rule to show cause. The trial court held, as a matter of law, that there could not be a claim for arrearages in child support based upon the 1971 decree. The court further ruled that any issue as to arrearages should have been raised in the 1978 dissolution proceedings.

A petition for rehearing and to vacate the trial court’s order was denied and a written order dismissing the rule to show cause was filed on May 20, 1981.

On appeal, plaintiff argues that the remarriage of the parties to each other did not affect the validity of the 1971 divorce decree and that the trial court retained jurisdiction to enforce its provisions. Alternatively, plaintiff contends that since child support arrearages are personal obligations, the rule to show cause is supported by language in the 1978 dissolution decree to the effect that the parties are responsible for their personal debts.

The primary issue in this case is the effect of the remarriage of the parties to each other upon the prior divorce decree. Though only one Illinois case concerning this issue has been called to our attention, In re Marriage of Leon (1980), 84 Ill. App. 3d 50, 404 N.E.2d 1071, it is in accord with the vast weight of authority from other jurisdictions which hold that upon remarriage of the parties to each other, the prior divorce decree is annulled and rendered void. The parties áre restored to their rights as if they had never been divorced. After remarriage, the parties’ relationship to the children and the duty to furnish support become exactly as they were before the. divorce and upon the showing of remarriage, judgment for custody or for an amount for support of the children cannot be maintained based on the prior decree. The court simply lacks jurisdiction to reexamine the prior decree. Jenkins v. Followell (Okla. 1953), 262 P.2d 880; Davis v. Davis (Cal. App. 1967), 59 Cal. Rptr. 788, vacated (1968), 68 Cal. 2d 290, 437 P.2d 502, 66 Cal. Rptr. 14; Carson v. Carson (1930), 143 Okla. 274, 288 P. 475; Thomas v. Thomas (Okla. App. 1976), 565 P.2d 722; Ex parte Phillips (1957), 266 Ala. 198, 95 So.2d 77; Rasch v. Rasch (1964), 250 Miss. 885, 168 So.2d 738; In re Marriage of Helm (Iowa 1978), 271 N.W.2d 725.

Though each of these cases is factually distinguishable from the instant case, the theory upon which they rely is not. Illustrative is the case of Davis. In Davis, the parties were initially divorced in 1958. No order for child support was entered at that time because the husband was not a resident of California. In 1959, the parties agreed between themselves that the husband would pay $100 a month child support. A support order was then entered and made a part of the original divorce decree.

- The parties were remarried in 1960 and the husband left the country to pursue his business. In 1961 the second divorce was granted to the wife. The second decree again did not provide for any support payments because the husband was not present in California.

In 1964 the husband returned to the country, agreed to a second support order, and began making payments under its terms. The wife then brought suit to collect child support from the period between the separation that followed the remarriage and the date the second support order was entered of record. Her claim for arrearages was based on the theory that the subsequent remarriage did not nullify the first child support order. The trial court denied relief.

Though the appellate court held that the remarriage did not, ipso facto, disqualify the wife from maintaining an action based on the first divorce decree, the Supreme Court of California disagreed and affirmed the trial court. While the court noted that there was no basic quarrel with the notion that the father had a basic duty to support the minor children, the precise question was the effect of the remarriage upon the child support order made in the earlier divorce proceeding. Citing a number of cases from other jurisdictions, the California Supreme Court agreed with a passage from Lockard v. Lockard (1951), 49 Ohio Op. 163, 102 N.E.2d 747, which concluded:

“ ‘Where a decree of divorce makes provision for the custody, care, control, and support of minor children of divorced parents, 0 0 0 the jurisdiction of the court over custody continues ° ° *.
<* e #
But if the parties remarry they no longer have separate rights of custody ” * *. Instead there is a resumption of the same joint right to custody which antedated the separation and the divorce * * * [and] the basis for the court’s further jurisdiction ceases.
It is generally the law that remarriage of the parents terminates a divorce court’s jurisdiction over the parties and their minor children.’ ” (Davis, 68 Cal. 2d 290, 292-93, 437 P.2d 502, 504, 66 Cal. Rptr. 14, 16.)

In the same opinion, the Supreme Court of California determined that the term “custody” encompassed the notion of monetary support since a custody award to the mother ordinarily carried with it a support order against the father.

The same result was reached in a different factual context in In re Marriage of Leon (1980), 84 Ill. App. 3d 50, 404 N.E.2d 1071. In Leon, the parties were married in 1972. They were divorced in La Salle County in 1976. The La Salle County decree reserved for future consideration numerous items concerning ownership of household furniture and other property.

The couples were remarried in Arizona and again divorced in Arizona. The wife returned to Illinois and sought to invoke the authority of La Salle County to determine the issues reserved in the 1976 decree. The trial court concluded that it had authority to act with respect to the personal property reserved in the prior decree despite the remarriage and subsequent divorce of the parties. The Fifth District Appellate Court, however, reversed and vacated the trial court’s order on the basis that the trial court lacked jurisdiction to consider the prior decree.

The appellate court relied upon Mitchell v. Mitchell (1951), 171 Kan. 390, 233 P.2d 517, in concluding that the provisions of the second decree superseded provisions of the first decree with regard to the disposition of property. The appellate court held that the subsequent remarriage and redivorce of the parties divested the trial court of further jurisdiction to divide property between the parties under the tenets of the first decree.

We find the reasoning in the cited cases to be persuasive. The original divorce decree existed only because the parties sought a judicial determination of their respective rights and liabilities after the breakup of the marital relationship. Once the parties remarry each other they are restored to their respective rights as husband and wife and parents as if they had never been divorced. The remarriage leaves nothing to be enforced by the court in the absence of a valid antenuptial agreement.

Neither logic nor the orderly administration of judicial proceedings dictates a contrary result. If, for instance, neither of the parties can successfully maintain an action against the other to modify a prior divorce decree while a subsequent marriage between the parties exists (Wilkerson v. Hoover (1936), 192 Ark. 337, 91 S.W.2d 274; Carson v. Carson (1930), 143 Okla. 274, 288 P. 475), it would be anomalous to suggest that the prior decree somehow revives after a subsequent divorce. Moreover, section 503(c)(5), (6), of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, pars. 503(c)(5), (6)) expressly provides that these issues can be preserved and determined at the time the subsequent dissolution decree is entered.

While we do not quarrel with plaintiff’s theory that past due installments for child support are vested rights which a court is without authority to modify (Strum v. Strum (1974), 22 Ill. App. 3d 147, 317 N.E.2d 59), that conclusion is predicated upon an enforceable order being present. Since the remarriage of the parties annuls the prior order, the question of rights of the parties, vested or otherwise, is never reached.

Plaintiff also contends that irrespective of the validity of the first decree, the rule to show cause may be supported by considering the language in the 1978 dissolution decree. The second decree recites, in boilerplate fashion, that each of the parties is responsible for personal debts. Plaintiff reasons that defendant is liable under this language citing cases that have held that past due support arrearages are personal debts. Carroll v. Carroll (1978), 64 Ill. App. 3d 925, 382 N.E.2d 7; In re Marriage of Pickell (1979), 76 Ill. App. 3d 855, 395 N.E.2d 673.

The trial court rejected this theory, concluding that the second divorce decree did not sufficiently protect or raise the issue of past due arrearages. The second decree provides for subsequent child support in the amount of $200 per month. It makes no specific reference to any prior debts or child support arrearages. These facts bear a striking resemblance to the case of Calkins v. Calkins (1942), 155 Kan. 43, 122 P.2d 750. Calkins was the basis for the holding in Mitchell v. Mitchell (1951), 171 Kan. 390, 233 P.2d 517, which was relied upon by the Fifth District in in re Marriage of Leon (1980), 84 Ill. App. 3d 50, 404 N.E.2d 1071.

At the time of Calkins, Kansas law permitted separate-maintenance orders without the necessity of subsequent divorce proceedings. The facts showed that a separate maintenance order was entered on behalf of the wife which ordered the husband to pay $70-a-month maintenance. The record was undisputed that the husband paid $425 toward this obligation. A divorce between the parties was subsequently granted, and it was again undisputed that the husband was $415 in arrears in maintenance payments at the time the divorce was granted. The divorce decree recited that the wife was to receive $2,000 as maintenance.

The wife then attempted to sue for the unpaid $415 which accrued prior to the divorce decree. The question before the court was whether the arrearages could be enforced. The Kansas court indicated that at the time of the divorce action there was no evidence of any arrearages under the first order. The court concluded that where one spouse is indebted to the other at the time of the divorce action and a decree fixing the property rights is rendered, it will be presumed that such indebtedness is settled, adjudicated, and adjusted in that decree. If the matter is not presented at the time of the divorce, further consideration of it is barred. The court in Calkins noted that the divorce decree recited a $2,000 judgment for maintenance without specifically delineating that any or all of that amount was an arrearage. Without any specific agreement as to arrearages, the husband was liable only for $2,000 under the plain terms of the decree. This is the precise situation present in this case.

We must reject plaintiff’s contention that the boilerplate language concerning liability for personal debts was intended to apply to debts between the parties. The customary interpretation of that provision is that it applies as between the parties only to claims made by third persons to whom either of the individuals owes sums of money or other valuable consideration. This conclusion is appropriate since the very reason property settlements are incorporated into dissolution decrees is to resolve, in specific terms, any conflicts between the parties in that regard.

(The cases cited by plaintiff are distinguishable. In both Carroll and Pickell, temporary custody and child support orders had been entered against the respective husbands prior to final dissolution. Arrearages in those support payments had accrued before the final decree was entered. In both cases, the trial courts ordered that the past due payments be deducted from proceeds of the sale of the marital home prior to the division of the proceeds between the parties. Both appellate courts reversed on the theory that past due support payments became debts of the individuals obligated to pay and could not be reduced or excused by the court. In those cases, the temporary support decrees were specific and unequivocal. The debt accrued as a direct consequence of the failure to comply with the order. In this case, no corresponding factual relationship exists since the debt, if any, predated the second dissolution proceeding and can only be maintained by a tenuous inference.)

Affirmed.

TRAPP, P. J., and LONDRIGAN, J., concur.


author: Mr. JUSTICE KARNS Mr. JUSTICE JONES,

text:
    JOHN SCHUTZENHOFER, Plaintiff-Appellee, v. GRANITE CITY STEEL COMPANY, Defendant-Appellant.
    Fifth District
    No. 80-225
    Opinion filed November 9, 1981.
    JONES, J., dissenting.
    Pope and Driemeyer, of Belleville (James R. Parham and Allan Goodloe, Jr., of counsel), for appellant.

      William S. Beatty and Kathryn P. Taylor, both of the Law Offices of William W. Schooley, of Granite City, for appellee.
   Mr. JUSTICE KARNS

delivered the opinion of the court:

John Schutzenhofer brought this action to recover damages for injuries received during the course of his employment as a switchman under the Federal Safety Appliance Act (45 U.S.C. §1 et seq. (1976)) and the Federal Employers’ Liability Act (45 U.S.C. §51 et seq. (1976)). Plaintiff’s employer, Granite City Steel Company, defendant, appeals from the judgment entered on the general verdict in plaintiff’s favor after a jury trial in the Circuit Court of Madison County.

On appeal, defendant argues that under the facts, which are not in substantial dispute, it is not, as a matter of law, a common carrier by rail engaged in interstate commerce within the meaning of the Safety Appliance Act (45 U.S.C. §1 (1976)) and the Employers’ Liability Act (45 U.S.C. §51 (1976)). Plaintiff moved for partial summary judgment in the trial court on the question of defendant’s status as a common carrier by rail in interstate commerce after defendant had answered denying that it was a common carrier by rail (Ill. Rev. Stat. 1979, ch. 110, par. 57(1)). Defendant thereafter filed an affirmative defense alleging that the exclusive remedy of plaintiff was the Illinois Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.5) as the alleged injuries of plaintiff were received while he was an employee of defendant who was not a common carrier by rail engaged in interstate commerce at the time of the occurrence in question. The trial court ruled in favor of the plaintiff and found defendant to be a common carrier engaged in interstate commerce and granted summary judgment in favor of plaintiff on that issue, thereby removing it from the trial of the case.

Defendant is engaged in the manufacture of steel at its industrial complex in Granite City. It owns 14 locomotives and 509 railroad cars which travel over approximately 55 miles of track. It employs 251 people to operate and maintain the railroad equipment and tracks. Plaintiff was employed by defendant as a switchman and on September 1, 1975, was the conductor of the train when he was injured. The evidence at trial was that plaintiff’s switch engine moved ladle cars of molten pig iron from the blast furnace located on the south side of Illinois Route 203 in Granite City to the basic oxygen furnace on the north side of Illinois Route 203. Plaintiff was in the process of supervising the movement of empty ladle cars out of the basic oxygen furnace when a stirrup on the ladle car on which plaintiff stepped broke causing plaintiff to fall to the ground resulting in an injury to his back.

In addition to the movement of ladle cars on which plaintiff works, which do not travel outside the boundaries of defendant’s plant except to cross Route 203, defendant currently performs switching operations for three other industries and has performed switching services for other industries either now defunct or not presently in need of defendant’s services. Two of the other industries, Lipsett Steel Products, Inc., a subsidiary of Luria Bros. Co., Inc., and International Mill Service, Inc. (hereinafter I.M.S.), lease their property from defendant and are located within defendant’s plant yard. The third business, Air Products and Chemicals (Air Products), is located immediately adjacent to defendant’s property.

The railroad traffic between defendant and the three satellite industries has been governed by a series of agreements among defendant, the satellite industries and two railroads, Terminal Railroad Association and Illinois Terminal Railroad. One set of agreements executed in 1957 provided that defendant was to act as the agent of the railroads in switching cars from an interchange point at McCambridge and Edwardsville Road, referred to as Block F yard, onto the sidings of the three satellite industries. The tracks at the Block F yard are maintained by the railroads on property leased from defendant. For this service defendant was compensated at the rate of $3.75 per loaded car. These agreements were terminated orally on March 1, 1975, the agreements later being reduced to writing. The new agreements provided that defendant was no longer to act as the agent for the railroads and was not to receive any compensation for switching cars.

Defendant and the Terminal Railroad also entered into a lease on August 5, 1965, which provided that defendant would switch cars over tracks on the leased premises owned by the Illinois Terminal Railroad for industries located adjacent to 16th Street between Madison Avenue and State Street in Granite City. Defendant paid an annual rent of $1,081.37 to the Terminal Railroad for use of the leased premises and received $4.50 per loaded car switched onto the above described property. On March 26,1975, the lease was amended to relieve defendant of the obligation to provide switching services to industries adjacent to 16th Street. The amendment provided that the defendant was to “[u]se said premises and improvements for the purpose of switching traffic of the Lessee [Granite City Steel] * * Defendant was not to receive any compensation from the Terminal Railroad under the lease as amended.

Railroad traffic is also regulated by agreements among defendant and Luria Brothers, I.M.S. and Air Products. The substance of each agreement provided that in switching cars from Block F yard onto the industries’ sidings defendant was acting as a private carrier and no compensation was to be received for performing switching services. Each agreement also incorporated the St. Louis-East St. Louis Terminal Lines Switch Tariff 1-F (ICC 5187), which provided that the obligation of the Terminal Railroad and Illinois Terminal Railroad was limited to the delivery and pickup of railroad cars at the Block F yard.

Other than the above agreements, railroad traffic of defendant is not regulated. Granite City Steel does not operate pursuant to a certificate of public convenience and necessity granted by the Interstate Commerce Commission or Illinois Commerce Commission; it is not regulated by any governmental agency, nor does it publish a tariff.

On the basis of the above facts the trial court found as a matter of law defendant to be operating as a common carrier by rail in interstate commerce. After the jury’s verdict in favor of the plaintiff, defendant did not move for a new trial but did request that judgment be entered notwithstanding the verdict.

Plaintiff has filed a motion to dismiss this appeal which we have taken with the case. He argues that the defendant has not preserved for review the question it asks this court to decide, that is, whether defendant is entitled to judgment in this court as a matter of law.

In the trial court defendant took the position that the question of its status as a common carrier by rail engaged in interstate commerce was one of fact for the jury’s determination, which it would be under disputed facts. (Avance v. Thompson (1944), 387 Ill. 77, 55 N.E.2d 57.) It filed no countermotion for summary judgment, but resisted plaintiff’s motion on the ground .that there was a bona fide question of fact as to defendant’s status.

After partial summary judgment was entered in plaintiff’s favor, the question of defendant’s status as a common carrier was removed from the trial of the lawsuit. The jury resolved the remaining issues in plaintiff’s favor.

After the jury verdict in favor of plaintiff, the defendant did not file a motion for a new trial. It did file a motion for judgment notwithstanding the verdict alleging that the trial court erred in granting partial summary judgment on behalf of plaintiff as there were genuine issues of fact concerning defendant’s status as a common carrier engaged in interstate commerce. The motion stated that it had denied the allegation in plaintiff’s complaint that it was so engaged in its answer. It further alleged that it was entitled to summary judgment on this question, although, as we have noted, it filed no motion for summary judgment. The motion further alleged as error the denial of its motion for a directed verdict on the question of the status of Granite City Steel as a common carrier engaged in interstate commerce; however, that issue had been removed from the case by the-granting of partial summary judgment in plaintiff’s favor.

The motion for judgment notwithstanding the verdict stated that “there were genuine issues as to material facts at the time” partial summary judgment was granted. The motion also stated that defendant, as a matter of law, was entitled to summary judgment finding that it was not a common carrier by rail, We see the issue before this court to be whether defendant’s motion for judgment notwithstanding the verdict can be treated as a motion for summary judgment, or, stated otherwise, whether judgment can be entered in defendant’s favor in this court on the basis of denial of defendant’s motion for judgment notwithstanding the verdict where the issue raised by defendant was not tried to verdict before the jury.

In its brief, defendant concedes that it has waived any right it might have to a remandment and a new trial on any issue (Walden v. C. & N.W. Ry. Co. (1952), 411 Ill. 378, 104 N.E.2d 240), and emphasizes it is not seeking a new trial, but a determination that as a matter of law, on the facts which are not in dispute, it is not subject to liability under the Federal Employers’ Liability Act or the Safety Appliance Act inasmuch as it is not a common carrier engaged in interstate commerce.

Defendant argues that it has preserved this question for review by filing a motion to dismiss plaintiff’s complaint; by thereafter filing motions for directed verdict stating that plaintiff failed to establish a prima facie case as to the status of defendant as a common carrier in interstate commerce; and finally, by filing a motion for judgment notwithstanding the verdict, all motions raising the question of the status of defendant as a common carrier engaged in interstate commerce.

We would observe that while the record contains references to a motion to dismiss, we have searched the record and have been unable to find any such motion in the record on appeal. Defendant did file an affirmative defense, as we have noted, which in substance was a restatement of its denial of plaintiff’s averment that defendant was a common carrier engaged in interstate commerce at the time of the occurrence, and further alleging that plaintiff’s only remedy was under the Illinois Workmen’s Compensation Act; however, defendant never filed a motion challenging the legal sufficiency of the complaint.

Plaintiff insists that defendant could only preserve this issue for review by moving for summary judgment in opposition to plaintiff’s motion for summary judgment. He cites as authority for this proposition Cooper v. Liberty National Bank (1947), 332 Ill. App. 459, 75 N.E.2d 769, and Cobbins v. General Accident Fire & Life Assurance Corporation, Ltd. (1972), 3 Ill. App. 3d 379, 279 N.E.2d 443, rev’d on other grounds (1972), 53 Ill. 2d 285, 290 N.E.2d 873.

In Cooper, the defendants resisted plaintiff’s motion for summary judgment but did not themselves move for summary judgment. The appellate court agreed that summary judgment was improperly entered in favor of plaintiff and, apparently, that defendants were entitled to judgment on the established facts. The opinion states that “inasmuch as defendants did not ask for summary judgment, we would not be -warranted in entering judgment in their favor here, and are therefore obliged to remand the cause with directions that such further proceedings be had as may be appropriate under the pleadings heretofore filed and the views herein expressed.” 332 Ill. App. 459, 467-68, 75 N.E.2d 769, 773.

In Cobbins, an insurer was granted summary judgment in an action for declaratory judgment to determine if a policy of insurance afforded coverage to an occurrence wherein plaintiff was injured. The court determined that the trial court had improperly determined that no coverage was afforded under the policy in question and summary judgment was improper. Citing Cooper with approval, the court stated, “inasmuch as plaintiff did not move for that relief in the trial court, we cannot, in this court, grant his prayer that judgment be entered here in his favor.” 3 Ill. App. 3d 379, 387, 379 N.E.2d 443, 448.

Admittedly, the precise meaning of the quoted language is not clear. It would appear to say that the reviewing court may not afford relief not properly requested. Here, defendant only asks this court to enter judgment in its behalf. It did not request remandment to the trial court for any purpose. Similar language appears in Stanfield v. Medalist Industries, Inc. (1975), 34 Ill. App. 3d 635, 390 N.E.2d 276, where plaintiff requested the reviewing court to enter summary judgment in her favor in a products liability case when plaintiff had failed to move for summary judgment in the trial court. The court stated that it could not grant such relief, citing Cobbins and Cooper. The court further noted that triable issues of fact existed and remanded the cause for trial, relief not here requested.

In response to plaintiff’s motion to dismiss the appeal, the defendant argues that this court can grant any relief the trial court could have afforded defendant, citing Supreme Court Rules 366(a)(5) and 366(b)(3), which are concerned with powers of reviewing courts (73 Ill. 2d R. 366(a)(5), 366(b)(3)). Supreme Court Rule 366(a)(5) provides that the reviewing court may, in its discretion:

“* 9 0 give any judgment and make any order that ought to have _been given or made, and make any other and further orders and grant any relief, including a remandment, a partial reversal, the order of a partial new trial, * * * that the case may require.”

Supreme Court Rule 366(b)(3) deals with the scope of review in nonjury cases. Defendant argues that the effect of granting partial summary judgment on the question of defendant’s status as a common carrier engaged in interstate commerce transforms these proceedings, pro tanto, into a nonjury trial. It argues that when these supreme court rules are read with section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3), which provides that in a nonjury case a party may within 30 days of entry of judgment “file a motion for a rehearing, or a retrial, 99 9 or for other relief,” defendant’s post-trial motion asking the court to reconsider its ruling entering partial summary judgment preserves for review any question it may ask this court to consider and authorizes this court to grant any relief even though not requested in the trial court, including the entry of summary judgment on defendant’s behalf or the remandment of the cause to the trial court for that purpose.

Defendant has cited no authority in support of its position, and we do not believe that the cited rules can be read so broadly. Granting of partial summary judgment does not change these proceedings into a nonjury trial, in our opinion.

Nor do we believe that Supreme Court Rule 366(a)(5) can be read to authorize this court to grant relief not requested in the trial court. The rule states that a reviewing court may “give any judgment and make any order that ought to have been given or made.” We interpret this to mean that the relief requested in the reviewing court must have been properly requested and preserved for review in the trial court. The Illinois Supreme Court has recently spoken to the necessity of strict compliance with the rules governing the trial and appeal of civil cases in Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337, and in Creek v. Clark (1981), 88 Ill. 2d 54,_ N.E.2d _, wherein it disapproved of fashioning an inappropriate remedy by the use of Supreme Court Rule 366(a)(5). We would note that the point addressed in the dissent was never raised by defendant in the trial court or on appeal in this court, and the relief granted defendant, a new trial, was never requested in this court.

For the court to approve any other informal procedure would render meaningless the rules governing the trial and appeal of civil cases and the explicit language of section 68.1 of the Civil Practice Act governing the proper purpose and function of a motion for judgment notwithstanding the verdict. See Ill. Ann. Stat., ch. 110, par. 68.1, Joint Committee Comments and Historical and Practice Notes, at 32 etseq. (Smith-Hurd 1968).

We now return to the issue before the court. Does defendant’s motion for judgment notwithstanding the verdict preserve for review the defendant’s claimed error and permit this court to enter judgment in defendant’s behalf in this court, the only relief requested.

Section 68.1(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.1(2)) provides:

“* « o Reuef after trial may include the entry of judgment if under the evidence in the case it would have been the duty of the court to direct a verdict without submitting the case to the jury °

It has been stated numerous times that the function of the motion for judgment notwithstanding the verdict is the same as the motion for directed verdict. It only permits the court to determine if the proof at trial is sufficient to present a question for the jury’s determination. (Yates v. Cummings (1972), 4 Ill. App. 3d 899, 282 N.E.2d 261.) Here the defendant does not question the jury’s verdict in favor of plaintiff under the evidence presented to the jury. It questions the sufficiency of the proof to support the granting of partial summary judgment on plaintiff’s behalf. It is well settled, however, that motions for judgment notwithstanding the verdict can only be employed to correct the jury’s improper determination of factual questions as it serves the same function as a motion for a directed verdict under the rule of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

We find plaintiff’s motion to dismiss this appeal well taken; accordingly, this appeal is dismissed and the judgment of the Circuit Court of Madison County is affirmed.

Appeal dismissed; judgment affirmed.

HARRISON, J., concurs.

Mr. JUSTICE JONES,

dissenting:

The unusual and unauthorized use of a pretrial summary judgment as to one of the principal issues of the case has resulted in a procedural dilemma that seemingly precludes review of the case on appeal.

In view of the direction taken by the case in the trial court, the result reached by the majority is understandable. Nevertheless, I am persuaded that the improper use of summary judgment in the case has produced the unusual posture in which it comes to us and that the only way to rectify the error is to order a new trial upon all issues. Such a directive by this court is authorized by the applicable rules, and fundamental fairness and justice require it. Accordingly, I respectfully dissent.

Section 57(1) of the Civil Practice Act provides that a plaintiff may move for summary judgment in his favor for all or any part of the relief sought. Use of the word “relief” in that section of the statute was a matter of specific choice, not of random selection.

The summary judgment granted by the trial court did not grant any of the relief sought by the plaintiff. The only relief sought by the plaintiff in his one-count complaint was a judgment for damages. Rather, the summary judgment was granted as to but one element or issue comprised in the single cause of action asserted by the plaintiff. By no manner of interpretation could the summary judgment rendered be considered a judgment in the traditional sense, and citation of authority for that proposition should be unnecessary. No relief was granted by the judgment. There was nothing to enforce, and, even if the findings required for appeal by Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)) had been made, the summary judgment would not be appealable because it did not dispose of one of several claims or of one of several parties.

The summary judgment was granted prior to commencement of the trial upon a consideration of pleadings, depositions, exhibits and affidavits. When the proceeding leading to the summary judgment is fairly considered, it is readily apparent that it was improperly granted since there was- a serious dispute as to the facts which should have been resolved by the jury. That, however, is not the focus of my disagreement and will be discussed no further.

Had the trial court followed the applicable Illinois practice, the motion for a pretrial summary judgment upon a constituent issue of the single claim asserted would not have been entertained. Rather, the court would have directed that the case proceed to trial. Either at the close of plaintiff’s evidence, or at the close of all the evidence, the court could have entertained plaintiff’s motion for a directed verdict or finding that the defendant was a common carrier by rail engaged in interstate commerce. His ruling would be governed by his determination of the quantum of certainty or doubt established by the evidence that had been presented. If warranted by the evidence, the trial court could remove the issue from consideration by the jury by a directed verdict or finding as to that issue and leave the balance of the issues for resolution by the jury. That the trial court may direct a verdict of finding in a proper case upon a certain issue or issues is not questioned in Illinois. See Smith v. Bishop (1965), 32 Ill. 2d 380, 205 N.E.2d 461; Bartolomucci v. Clarke (1965), 60 Ill. App. 2d 229, 208 N.E.2d 616; Betzold v. Erickson (1962), 35 Ill. App. 2d 203, 182 N.E.2d 342.

The procedure followed by the trial court and the plaintiff apparently was that used in the Federal practice. The practice of rendering summary judgment upon an issue involved in a claim was expressly rejected in Illinois. Thus, our summary judgment statute provides that such judgment may be granted for all or part of the relief sought, not as to all or some of the issues involved. This appears from the Historical and Practice Notes in the Smith-Hurd Statutes (Ill. Ann. Stat., ch. 110, par. 57, Historical and Practice Notes, at 61-62 (Smith-Hurd 1968)), which state in pertinent part:

“Revised section 57 does not include the provision of Federal Rule 56(d) that even if judgment is not rendered on the whole case the court may determine what facts appear without substantial controversy and enter an order specifying them, which order obviates the necessity of proof on those facts at the trial. A provision to that effect, included in the early drafts of revised section 57, was eliminated in the final draft because a majority of the Joint Committee felt that it tended to invite encroachment upon the right to trial by jury or court on evidence adduced in open court.”

Fundamental fairness and justice dictate that both the interlocutory summary judgment and the final judgment be set aside and the case remanded for a new trial. Supreme Court Rule 366(a)(5) authorizes this court to “grant any relief * * * that the case may require,” and that constitutes sufficient authority for such an order by this court. Cf. Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831.


author: Mr. JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARLTON E. HUNTER, Defendant-Appellant.
    Fifth District
    No. 80-332
    Opinion filed November 10, 1981.
    John H. Reid and Patrick M. Carmody, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    R. Glen Wright, State’s Attorney, of Shelbyville (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE HARRISON

delivered the opinion of the court:

The defendant, Carlton E. Hunter, was convicted by a jury in the circuit court of Shelby County of aggravated arson (Ill. Rev. Stat. 1979, ch. 38, par. 20 — 1.1(a) (1)). Defendant was sentenced to 10 years’ imprisonment. The only issue on appeal is whether the trial court abused its discretion by considering improper factors in aggravation when sentencing defendant. We affirm the judgment of the trial court.

The relevant facts of the offense can be summarized. Defendant owned a duplex residence in Windsor, Shelby County, Illinois. Defendant and his wife lived in one part of the duplex, and the other part was rented to the Paul family. After defendant’s wife died, he desired to sell the duplex and move from Windsor. When no prospective buyers appeared, defendant threatened to burn the duplex if he could not sell it. In November of 1979 during a trip to Hopkinsville, Kentucky, defendant offered his cousin $2000 to help him. On November 5, 1979, at approximately 10 p.m., defendant returned to Windsor with his cousin. Defendant poured gasoline throughout the part of the duplex in which he lived and went to a tavern while his cousin started the fire. An explosion was heard throughout the neighborhood. The Pauls, upon hearing the explosion and seeing a bright light, ran from the duplex with their two-year-old daughter. They alerted officials, who fought for one hour to contain the blaze but were unable to save the house.

In sentencing the defendant, the court stated:

“Very well, at this time, it is the duty of the Court to make a sentence based on my independent assessment of all the elements. Going into the character of the defendant, nature of the circumstance of the offense, public interest, due regard to the various factors of aggravation and mitigation set forth by the statute, aggravating factors specifically being the fact that the defendant’s conduct threatened serious harm to the Pauls including one child and but for some alertness on the part of public officials it could have very easily resulted in a death. When you deal with arson, it has to be punished severely so as to deter others from committing the same crime especially when this one was on the evidence for the purpose of getting rid of his house to the insurance company because he couldn’t sell it. I think if everybody could burn down a house to get money instead of selling to another person, then we would be in a sad situation.”

Section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2) provides certain factors which the trial court may consider as reasons to impose a more severe sentence. Among the factors properly considered in aggravation is that the defendant’s conduct caused or threatened serious harm. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(a)(1).) The penalty for aggravated arson, a Class X offense, is a determinate sentence of not less than six years nor more than 30 years. (Ill. Rev. Stat. 1979, ch. 38, pars. 20 — 1.1(b) and 1005 — 8—1(a)(3).) In the case at bar defendant received a sentence of four years in excess of the penal minimum..

Defendant, citing People v. Conover (1981), 84 Ill. 2d 400, 404, 419 N.E.2d 906, argues that the court should not have considered that his conduct threatened serious harm. In Conover, the supreme court stated:

“Just as this court determined in Brownell that a factor necessarily implicit in every murder should not be utilized as an aggravating factor, we believe that a factor implicit in most burglaries and every theft should not be used as an aggravating factor at sentencing.”

The court then vacated the sentences and remanded for new sentencing hearings.

In this case, defendant argues that the threat of harm is implicit in the definition of aggravated arson. He points out that in order to be convicted of aggravated arson, as charged, defendant must have known or reasonably should have known that at least one person was present in the structure which he set ablaze. (Ill. Rev. Stat. 1979, ch. 38, par. 20 — 1.1(a)(1).) Relying on Conover, defendant concludes that the threat of serious harm should not, therefore, have been considered a second time to increase his prison term.

Although Conover does stand for the proposition on which defendant relies, the supreme court did not intend an inflexible construction of the rule. With compelling logic, the court in People v. Tolliver rejected a rigid application of Conover. (People v. Tolliver (1981), 98 Ill. App. 3d 116, 117-18, 424 N.E.2d 44, 45.) In Tolliver, an appeal from an armed robbery conviction, the court said that although Conover held that a specific act inherent in a charged offense could not be considered to aggravate a sentence, a judge may still consider “the nature and circumstances of the offense, including the nature and extent of each element of the offense as committed by the defendant.” (98 Ill. App. 3d 116, 117-18.) It concluded that even though a judge could not take into account the fact that violence was used or that compensation was received, he could properly consider the “degree of force employed and the amount of money taken.” (Emphasis added.) 98 Ill. App. 3d 116, 118.

Applying the logic of Tolliver to this case, we find that the judge properly considered the degree of gravity of defendant’s conduct. Although he did mention that persons were exposed to serious harm, a fact which is implicit in the charge of aggravated arson and which, as defendant correctly maintains, cannot be considered in aggravation, he did not necessarily depend on that fact to impose a sentence greater than the minimum. He went on to note that the blaze endangered the lives of an entire family, including a small child. He emphasized the seriousness of arson, generally, and the danger to the victims in this situation, specifically. (The record reveals that the fire was set in the adjoining duplex at a time when the family was likely to be sleeping.) Finally, he based his decision on the obvious venal motivation of the defendant in destroying the house to gain insurance proceeds. These factors constituted the “nature and circumstances” of the crime which should have been considered in aggravation. Thus, the sentencing judge did not abuse his discretion by taking them into account.

In applying the rationale suggested in Tolliver, we have not departed from the spirit and purpose of section 5 — 5—3.2, nor have we fashioned a rule inconsistent with Conover. The supreme court did not intend to restrict the function of a sentencing judge by forcing him to ignore factors relevant to the imposition of sentence. Sound public policy demands that a defendant’s sentence be varied in accordance with the particular circumstances of the criminal act committed. Occasionally, certain conduct may warrant a harsher penalty than other conduct, even though both are technically punishable under the same statute. We believe, therefore, that the best approach is to continue to afford the trial judge a significant measure of discretion in sentencing matters.

Finally, we have examined the transcript of the sentencing hearing in light of defendant’s other assignments of error and find his challenges to be without merit. Accordingly, we affirm the judgment of the trial court.

Affirmed.

KARNS and WELCH, JJ., concur.


text:
    INGE BHATTACHARYA McCUTCHEN, Plaintiff-Appellant, v. KAREN J. BIGLER, Defendant-Appellee.
    Fifth District
    No. 80-616
    Opinion filed November 10, 1981.
    — Rehearing denied December 8, 1981.
    William L. Broom, III, of Barrett, Morris & Broom, of Carbondale, for appellant.
    Richard A. Green, of Feirich, Schoen, Mager, Green and Associates, of Carbondale, for appellee.
   Mr. JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Inge McCutchen, appeals from the trial court’s denial of her motion for a new trial on the ground that the jury verdict in favor of defendant-appellee, Karen Bigler, was against the manifest weight of the evidence. We reverse the judgment of the trial court and remand.

This litigation stems from a three-car accident which occurred in Carbondale on July 29, 1976. Three vehicles were traveling in single file on West Main Street. The essence of the dispute before us is the order in which the vehicles struck one another. Defendant’s theory of the case at trial was that all three vehicles had stopped in response to a traffic light and, after resuming speed, the plaintiff stopped suddenly and without warning, causing the middle vehicle to strike the plaintiff’s car and subsequently causing the defendant’s vehicle to crash into the middle car. The plaintiff’s theory of the case was that while the plaintiff and the middle vehicle were stopped for the light, the defendant struck the latter vehicle and caused it to strike the plaintiff’s automobile. The plaintiff brought suit complaining of injuries to her neck and other portions of her body. The jury returned a general verdict in favor of the defendant but answered the following special interrogatory in the negative:

“At the time of and just before the collision of July 29,1976, was the Plaintiff, Inge McCutcheon [sic], negligent so as to proximately cause her own injury?
Answer: No.”

Section 65 of the Civil Practice Act provides that where the answer to a special interrogatory conflicts with the general verdict, the special interrogatory controls the general verdict. (Ill. Rev. Stat. 1979, ch. 110, par. 65.) In determining whether the answer to a special interrogatory is inconsistent with a general verdict, the general rule is that a court of review may not look to the evidence, but must determine, as a matter of law, that the two findings are irreconcilable. (Finnegan v. Davis (1979), 68 Ill. App. 3d 118, 123-125, 385 N.E.2d 1103.) The Finnegan case carved an exception, of extremely limited application, to this general rule. This narrow and sharply circumscribed situation exists only where “under the evidence, * * 9 one or the other of two vehicle drivers must necessarily have been negligent * * (Finnegan v. Davis (1979), 68 Ill. App. 3d 118, 126.) Where this exception applies, the consequence is that a court of review may look to the evidence to determine whether the answer to the special interrogatory conflicts with the general verdict. The Finnegan court concluded that “where, under the evidence, there is no reasonable hypothesis whereby the general verdict can be found to be consistent with the answer to a special interrogatory, the latter controls the court’s judgment even though, under the issues drawn by the pleadings, the two may be consistent.” Finnegan v. Davis (1979), 68 Ill. App. 3d 118, 125.

The evidence adduced at trial presented only two possible explanations of the cause of the accident: either the plaintiff was stopped at the traffic signal waiting for it to change when the defendant collided with the middle vehicle and in turn struck the plaintiff’s vehicle, or the plaintiff stopped suddenly on the road, causing the collision. The evidence demonstrated that the accident necessarily was proximately caused by the negligence of either the plaintiff or the defendant, since no evidence of a third party’s negligence was adduced nor were such weather or road conditions shown which could have caused an unavoidable accident. We find that this rear-end collision, under the conditions just described, must have been the result of the negligence of either the plaintiff or the defendant. Hence this case falls within the narrow ambit of the Finnegan case, and consequently we may consider the evidence in determining whether the general verdict can be reconciled with the special interrogatory.

Traditionally, where special findings which are allegedly inconsistent with the general verdict do not cover all the issues submitted to the jury, the general verdict has been harmonized with the special findings, without looking to the evidence, by concluding that the general verdict represents a response to the issues not determined by the special findings. (See, e.g., Cohen v. Sager (1971), 2 Ill. App. 3d 1018, 278 N.E.2d 453.) In Cohen, the special interrogatories did not, under the pleadings, dispose of the issues of whether the plaintiff was injured by the occurrence and whether the defendant’s negligence was a proximate cause thereof. The court in Cohen concluded that the general verdict was a response to those issues not reached by the special interrogatories, and determined that, therefore, no inconsistency existed between the general verdict and the answers to the special interrogatories.

In the instant case, the special interrogatory found that the plaintiff was free from contributory negligence. This finding necessarily rejects the defendant’s theory of the case, which is that the plaintiff stopped suddenly and without warning. Because we have already determined that the collision must have been the result of the negligence of one or the other of the parties, under the facts of the instant case, the defendant must have been negligent. (See Finnegan v. Davis (1979), 68 Ill. App. 3d 118, 125.) There was ample evidence in the record of the injury and the proximate cause thereof. The record further demonstrates that none of the expert testimony adduced at trial tended to establish that the condition which became manifest after the accident was not caused by the collision. Since no other evidence bearing on the plaintiff’s physical condition was adduced, the jury had no evidence before it which tended to establish that the plaintiff’s injury was not proximately caused by the collision. Therefore, the only factual question involved — the negligence issue — was answered by the special interogatory. The answer to the special interrogatory also was in conflict with the general verdict, hence the answer to the special interrogatory controls. (Ill. Rev. Stat. 1979, ch. 110, par. 65.) We therefore reverse and remand with directions to enter judgment on the issue of liability for plaintiff and to conduct a trial on the issue of damages.

Reversed and remanded with directions.

KARNS and WELCH, JJ., concur.


author: Mr. JUSTICE KARNS

text:
    HAROLD M. BURGENER, Plaintiff-Appellee, v. J. R. GAIN, Defendant-Appellant.
    Fifth District
    No. 81-2
    Opinion filed November 13, 1981.
    Fieger, Quindry, Molt, Harvey, Fyie & Hawkins, of Fairfield (Morris Lane Harvey, of counsel), for appellant.

      Schniederjon, Weber, Harvey & Stephens, of Effingham (Frank H. Schniederjon, of counsel), for appellee.
   Mr. JUSTICE KARNS

delivered the opinion of the court:

Plaintiff, Harold M. Burgener, obtained judgment by confession on a promissory note against the defendant, J. R. Gain, in the Circuit Court of Wayne County. The court granted defendant’s motion to open judgment and to plead a defense to plaintiff’s complaint. Defendant counterclaimed for credits due from plaintiff under a contract for the sale of plaintiff’s business, such credits including, among other things, the accounts receivable. After a bench trial, the court awarded judgment for the plaintiff on a promissory note allegedly given as part of the purchase price of the business in the amount of $63,387.11 which included principal and interest and for the defendant on his counterclaim for $49,043.79 including interest. Both parties have appealed only as to those parts of the judgment relating to the note and accounts receivable and the interest awarded thereon.

The basic issue involved in this appeal is which of several documents constituted the contract of the parties for the sale of plaintiff’s business. In order to understand the specific contentions of the parties, a detailed recitation of the facts is necessary.

Plaintiff was the owner of Burgener Well Survey, Inc., an Illinois corporation, engaged in the business of oil well servicing, electric logging and perforating. The defendant was an employee of the corporation. In September 1972, the parties discussed the purchase of plaintiff’s business by defendant and plaintiff’s son, Harold E. Burgener. Plaintiff’s son was a party to the various transactions involved in the present controversy, but he is not a party to this litigation and reference shall be made only to defendant J. R. Gain.

On September 19,1972, the parties entered into an agreement for the purchase of plaintiff’s business by defendant, the purchase price being $105,000, but the listed value of the assets sold was $108,310.90. Accounts receivable were not included in the sales contract. This agreement was contingent upon the defendant obtaining a loan in the amount of $90,000 from a Centralia, Illinois, bank, to be guaranteed by the United States Small Business Administration. The Centralia bank refused to finance the transaction. The parties were refused financing by two other Illinois banks. The parties then sought financing through the Wayne County Bank, where a loan officer referred the parties to a regional office of the Small Business Administration. In October 1972, a representative of the Small Business Administration informed plaintiff and defendant of the requirements for obtaining an SBA loan. The requirements relevant to the instant appeal were that the defendant own assets in plaintiff’s business valued at one-third of the amount of the loan and that the accounts receivable on the date of sale be pledged as collateral for the loan to the Wayne County Bank.

On October 14, defendant submitted a loan application in compliance with the above requirements. In particular, defendant represented to the Small Business Administration that he owned certain tools and accessories valued at $32,310.90, the face amount of the promissory note now in dispute. The Small Business Administration was not told about the note. In addition, the accounts receivable were pledged as collateral. The loan in the amount of $90,000 was approved and closed on December 22,1972.

The parties entered into another purchase agreement, dated October 18,1972. The actual date that the agreement was signed is in dispute. The significant differences between the September 19 agreement and the October 18 agreement were as follows: the purchase price was reduced to $76,000, and the accounts receivable on the date of the sale were included in the inventory of items purchased. Two bills of sale were delivered to defendant. The December 19, 1972, bill of sale represented the sale of tools and accessories valued at $32,310.90. The December 23,1972, bill of sale, in addition to the tools and accessories, covered the sale of several trucks and the accounts receivable. The Wayne County Bank loan officer testified at the trial that the second bill of sale was executed in order to comply with the SB A loan requirements.

The promissory note was dated December 23, 1972. At the trial, plaintiff testified that the note was signed and delivered on that date. Defendant testified that he signed the note sometime in October. Plaintiff testified that the promissory note was given in exchange for the tools and accessories. Defendant testified that the parties never intended the note to be collected but rather it was executed in order to meet the SBA loan requirements.

The accounts receivable were never assigned to defendant and defendant testified that he did not demand the accounts receivable from plaintiff prior to commencement of the present suit. Defendant further testified that he bought one account from plaintiff in order to maintain a friendly relationship with one of his clients. Plaintiff testified that because the defendant’s business remained at plaintiff’s location, the payments on outstanding accounts were delivered to defendant. Plaintiff further testified that defendant turned these payments over to him.

On appeal, defendant argues that the October 18, 1972, purchase agreement and the December 22,1972, bill of sale are the sole documents that govern the rights and duties of the parties. In this regard, defendant first contends that the September 19, 1972, purchase agreement (hereinafter referred to as the first agreement) and the December 19,1972, bill of sale are inconsistent with the October 18,1972, purchase agreement (hereinafter referred to as the second agreement) and the December 22, 1972, bill of sale, this inconsistency indicating the parties’ intention to abrogate the first agreement and to substitute the second agreement. At trial, defendant objected to the admission of any evidence concerning the first agreement as violative of the parol evidence rule. It is not disputed that the second agreement was inconsistent with and modified the first agreement. We do not agree, however, with defendant’s conclusion that the second agreement and the December 22, 1972, bill of sale are the only relevant documents.

Where different instruments are executed by the same parties and in the course of the same transaction, the instruments are to be read and construed together. (Pecora v. Szabo (1981), 94 Ill. App. 3d 57, 418 N.E.2d 431.) Here, the parties executed a promissory note, dated December 23, 1972, in addition to the second agreement. Although there is a dispute between the parties as to the actual date the note was executed, it is clear that the note and the second agreement were executed in the course of the same transaction, that is, the sale of plaintiff’s business. Because we find that the trial court’s finding that the second agreement was not intended by the parties to be a final and complete expression of their entire agreement was correct and not against the manifest weight of the evidence, we reject defendant’s conclusion that the second agreement and bill of sale alone control the rights and duties of the parties.

Defendant next contends that the second agreement and the December 22,1972, bill of sale are clear and unambiguous written expressions of the parties’ agreement; and, therefore, the court should look only to these documents to ascertain the parties’ intent. The courts frequently admit extrinsic evidence in order to determine whether the parties have expressed their intent clearly. (Keep Productions v. Arlington Park Towers Hotel Corp. (1977), 49 Ill. App. 3d 258, 364 N.E.2d 939.) The trial court here properly admitted parol evidence of the negotiations between the parties. Plaintiff testified that the December 19,1972, bill of sale of certain tools and accessories was given in exchange for the promissory note. The December 22, 1972, bill of sale and the inventory of purchased, items attached to the second agreement also included the tools and accessories. This duplication raises uncertainty as to what portion of the assets of plaintiff’s business were intended to be included under the terms of the second agreement and what effect the promissory note had on the sales transaction. Clearly, the parties did not express their agreement in an unambiguous, integrated writing. Viewing all the facts surrounding the execution of the documents, we find that the trial court was correct in concluding that the parties substituted the second agreement for the first agreement for a limited purpose and did not intend this substitution to change the proposed transaction as set forth in the first agreement. Jost v. Cornelius (1948), 334 Ill. App. 279, 79 N.E.2d 310.

Defendant contends that the obligation underlying the promissory note was satisfied by his payment of the stated purchase price of $76,000 according to the second agreement. Where the court admits extrinsic evidence in order to determine the intention of the parties, the court’s construction of the contract will not be disturbed unless contrary to the manifest weight of the evidence. Keep Productions v. Arlington Park Towers Hotel Corp. (1977), 49 Ill. App. 3d 258, 364 N.E.2d 939.

Prior to going to the Wayne County Bank, the parties had tried to secure financing from three other banks. During this time the first agreement formed the basis of the proposed transaction. On the advice of a Wayne County Bank loan officer, the parties met with an SBA representative who informed the parties of the requirements for obtaining an SBA loan. One such requirement was that the purchasers own assets in plaintiff’s business valued at one-third of the amount of the loan. The purchasers were applying for a $90,000 loan; hence, the SBA required that the purchasers own assets in plaintiff’s business valued at $30,000. According to the terms of the first agreement, the total equipment inventory was valued at $108,310.90, which included certain tools and accessories valued at $32,310.90. The purchase price stated in the first agreement was $105,000. After meeting with the SBA representative, the parties entered into the second agreement, wherein the agreed purchase price was $76,000. Significantly, the face value of the promissory note, $32,310.90, added to the purchase price of the second agreement, $76,000, equaled the value of the total equipment inventory, $108,310.90, stated in the first agreement. The facts surrounding the transactions between the parties suggest that they rearranged the terms of the first agreement in order to secure the SBA loan. The parties represented to the SBA that defendant owned the tools and accessories valued at $32,310.90. The parties did not inform the SBA of the note. A fair inference to be drawn from the evidence is that the parties intended the promissory note together with the purchase price recited in the second agreement to be the true agreed purchase price. We, therefore, will not disturb the trial court’s judgment in favor of plaintiff on the promissory note.

Plaintiff appeals from the part of the judgment granting defendant a set-off for accounts receivable due on the contract of sale. Plaintiff argues, in substance, that the court’s findings that the parties intended the accounts receivable to be part of the bargain is against the manifest weight of the evidence. We agree.

The last paragraph of the equipment inventory attached to the second agreement states as follows:

“All accounts receivable on hand at the date the sale is completed.” As discussed above, the parties modified the terms of the first agreement after learning the requirements for securing an SBA loan. The accounts receivable were not included in the first agreement. The bank loan officer testified that the SBA required the purchasers to pledge the accounts receivable as collateral for the loan. There was no evidence of the value of the accounts receivable so far as their collectibility or how many were paid or remain to be paid.

It is a fundamental principle of contract construction that where the agreement is indefinite, the courts will look to and adopt the interpretation which the parties themselves have placed on it. (Moran v. Commonwealth Edison Co. (1979), 74 Ill. App. 3d 964, 393 N.E.2d 1269.) The actions of defendant reveal that he did not consider the accounts receivable to be included within the agreement. Defendant did not demand the accounts receivable from plaintiff prior to the instant suit. Defendant gave to plaintiff checks that he received on the outstanding accounts of plaintiff’s business. In addition, defendant purchased one of the outstanding accounts from plaintiff. His explanation for this transaction was certainly not reasonable or to us convincing. Defendant’s actions are inconsistent with his present claim of ownership. We find that the parties included the accounts receivable in the second agreement for the sole purpose of obtaining the SBA loan.

The judgment of the Circuit Court of Wayne County is, therefore, affirmed in part and reversed in part, and the cause is remanded for a redetermination of the amount due defendant on his counterclaim.

Affirmed in part; reversed in part; remanded.

KASSERMAN, P. J„ and HARRISON, J., concur.


author: Mr. JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GENE LOVITZ, Defendant-Appellant.
    Second District
    No. 80-307
    Opinion filed November 19, 1981.

      Mary Robinson and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE NASH

delivered the opinion of the court:

Defendant, Gene Lovitz, appeals from an order of the circuit court of Du Page County which dismissed his petition filed under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1979, ch. 38, par. 122 — 1 et seq.) without an evidentiary hearing. After a jury trial in April 1974, defendant was convicted of the murder of his wife, Donna Lovitz, and was sentenced to a term of 14 to 45 years’ imprisonment. On direct appeal, this court affirmed that conviction (People v. Lovitz (1976), 39 Ill. App. 3d 624, 350 N.E.2d 276); the Illinois Supreme Court denied leave to appeal (64 Ill. 2d 597) and the United States Supreme Court denied certiorari (Lovitz v. Illinois (1977), 434 U.S. 842, 54 L. Ed. 2d 107, 98 S. Ct. 141).

Defendant was represented by privately retained counsel, attorney Wayne B. Giampietro, in both his trial and on direct appeal. The public defender of Du Page County represented defendant in these post-conviction proceedings in the trial court, and the State Appellate defender is his counsel on this appeal. Defendant contends that his petition raised substantial claims of denial of his constitutional rights, asserting: (1) that he was denied a fair trial because an expert witness called by the State testified on the basis of facts later established to be erroneous, causing the expert to reverse his opinion since the trial and (2) that he lacked effective assistance of counsel in trial. He asserts the trial court erred in dismissing his petition on the State’s motion without holding an evidentiary hearing to establish the truth or falsity of the facts alleged in the petition and supporting affidavits.

While most of the relevant facts are adequately set forth in this court’s earlier opinion, certain other matters from the trial record must be considered in order to evaluate the issues now raised by defendant. At his trial defendant testified that the death of his wife occurred during an argument between them during which she produced a .380 Llama semiautomatic pistol and threatened to kill him, their two-year old daughter and herself. He stated that as she was waving the gun at him he could see that it was loaded, the positive safety was off and the hammer fully cocked. According to defendant, the fatal shot was fired accidentally while he struggled with his wife to gain control of the gun. He testified that, to his knowledge, he was unable to take the gun from her, it was in her hand during the struggle and he did not pull the trigger on the weapon.

According to the testimony of Dr. Dennis Dorsey, a pathologist, the decedent died as a result of a contact gunshot wound to the head. The bullet entered the skull a few inches behind the right ear and exited just above the left ear. There was also evidence of a puncture wound measuring two millimeters by four millimeters found on decedent’s right hand near the rear portion of the thumb; a photograph of the hand and wound was admitted in evidence. Evidence was also presented that the rear portion of the slide on the gun had the same dimensions as the puncture wound. In support of his theory of defense defendant sought to establish that this wound was caused when the gun discharged, forcing the slide back onto his wife’s hand, thereby proving that she was holding the gun when the fatal shot was fired.

Describing himself as an “armchair firearms expert,” having written several articles for gun magazines, defendant testified that in order to fire the gun the hammer had to be fully cocked, the positive safety, consisting of a lever on the side of the gun, had to be depressed and the grip safety had to be engaged. He stated that in the normal handling of the gun the grip would be depressed, thereby engaging the grip safety, and that the gun would not discharge unless the grip safety was depressed.

George Nonte, a qualified firearms expert, testified for the defense as to the operation of the gun. He stated that when he test-fired the weapon he received a similar injury to his hand, on the web of skin between the thumb and forefinger, as a result of his hand being pinched between the spur of the hammer and the spur of the grip safety. He stated that such a wound could be caused by the rear portion of the slide as it moved back upon discharge and that he had seen such marks made on the hands of others in that manner. It was Nonte’s opinion that the wound on Donna Lovitz’ hand was consistent with an injury which could have been made when firing a Llama .380.

Joseph Nicol, also a qualified firearms expert with a much wider background of experience than Nonte, testified on behalf of the State. Based upon test firings of the pistol and highspeed photographs taken as it discharged, it was Nicol’s opinion that the slide would clear the back of the hand by about one-half inch. He testified, “it would be highly improbable for this weapon to have struck the hand of the deceased in the area described.” When asked on cross-examination whether it was impossible for the gun to be held in a position to cause such a wound, he responded: “I was unable to determine a position * * * that would expose the upper surface of the thumb so that a wound would be received # 0 0 [in] my opinion [there is] no position in which this gun could be held and fired [that] would produce a mark on the shooter’s hand ° # Nicol’s opinion was also based upon the velocity and force of the recoil of the pistol and his belief at that time that the gun would not fire unless the grip safety was engaged and the trigger squeezed.

In count I of his amended petition, defendant alleged that after his trial a design defect had been discovered in Llama .380 pistols which would permit them to discharge even though the grip safety was not depressed. Sufficient force applied to a fully cocked hammer would engage the grip safety, causing the gun to discharge. Defendant also alleged that Joseph Nicol had then re-examined the gun and, in light of the defect which was unknown to him at trial, his testimony would have been significantly different. Submitted in support of defendant’s petition was an affidavit in which Nicol stated:

“In view of the aforementioned defect, it would not be inconsistent for the weapon to have accidentally discharged during a struggle, as testified to at said trial by GENE H. LOVITZ, wherein Lovitz and the decedent purportedly slid down a wall and impacted with the floor at which time the gun was to have discharged.
Also in view of this inherent defect and the testimony of the defendant, GENE H. LOVITZ, as mentioned above, there are positions in which the gun could have been oriented at the time it discharged so as to cause the rear corner of the gun slide to engage the decedent’s hand and cause the 2mm x 4mm puncture as shown in the photographs * #

A defendant is entitled to an evidentiary hearing of his petition for post-conviction relief if the well-pleaded allegations and supporting affidavits make a substantial showing of an abridgment of a constitutional right. (People v. Shaw (1971), 49 Ill. 2d 309, 311, 273 N.E.2d 816, 817; People v. Williams (1970), 47 Ill. 2d 1, 3, 264 N.E.2d 697, 698; People v. Edwards (1980), 83 Ill. App. 3d 128, 131, 403 N.E.2d 771, 774, cert. denied (1981), 449 U.S. 1087, 66 L. Ed. 2d 813, 101 S. Ct. 877.) If the allegations of a post-conviction petition warrant a fair inference of a violation of constitutional rights, and they are not negated by the State or the record, an evidentiary hearing is required. (People v. Cagle (1979), 68 Ill. App. 3d 72, 74, 385 N.E.2d 838, 839, appeal denied (1979), 75 Ill. 2d 589.) The right to a fair trial is protected by the due process clause of the fourteenth amendment to the United States Constitution and by article I, section 2 of the Illinois Constitution of 1970. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2; People v. McDonald (1970), 46 Ill. 2d 92, 263 N.E.2d 75.

Defendant contends that the recantation of the expert opinion given in trial by Joseph Nicol rebutting defendant’s theory the gun discharged accidentally, taken with his present opinion which is consistent with defendant’s innocence, presents a fair trial issue requiring an evidentiary hearing. In response, the State suggests that even if the mark on decedent’s hand could have been made when the gun was fired, that corrected fact would not necessarily establish it was in her hand at that time. The State also points out that Nicol’s trial testimony was but a small portion of the evidence presented against defendant and, as the revised opinion would not be sufficient to cause the jury to reach a different result, it does not raise a significant constitutional issue. See People v. Heral (1977), 54 Ill. App. 3d 527, 369 N.E.2d 922, appeal denied (1978), 71 Ill. 2d 597.

The cornerstone of the defense offered at trial was that defendant’s wife produced the weapon and threatened defendant with it, the two struggled and the gun accidentally discharged while in her hand when they fell to the floor. Defendant so testified and his version of the event was partially corroborated by his expert witness, Nonte, who stated the small mark on the hand of the deceased could have been made if the Llama .380 was in her hand when fired. Nicol’s trial testimony strongly refuted this argument, however, by stating there was no position in which the weapon could have been held and fired so as to produce such a mark on a hand. According to his affidavit, it appears Nicol would not now disagree with the testimony of defendant’s expert and would in fact lend support to defendant on the question of who was in possession of the weapon when it discharged. That issue was heavily contested during trial and in argument to the jury. We believe the scope of Nicol’s revised opinion relating to the weapon and the effect, if any, it had upon the outcome of the case can only be determined by an evidentiary hearing at which the arguments of the parties can be directed to the essential issue of whether defendant’s right to a fair trial was inadvertently violated so as to require a new trial. See People v. Garrett (1975), 26 Ill. App. 3d 786, 326 N.E.2d 143, rev'd on other grounds (1975), 62 Ill. 2d 151, 339 N.E.2d 753; see also People v. Bland (1978), 67 Ill. App. 3d 716, 384 N.E.2d 1380, appeal denied (1979), 75 Ill. 2d 591.

Defendant also asserts he was denied effective assistance of counsel at trial and that the trial court erred in dismissing his post-conviction petition without holding a hearing of its allegations in that regard. Essentially, defendant contends that his retained counsel failed to adequately investigate or prepare for trial, which resulted in his failure to discover evidence or present witnesses favorable to the defense. People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203; People v. Stepheny (1970), 46 Ill. 2d 153, 263 N.E.2d 83; People v. Howard (1979), 74 Ill. App. 3d 138, 392 N.E.2d 775; People v. Bland (1978), 67 Ill. App. 3d 716, 384 N.E.2d 1380.

Ordinarily, we would undertake an analysis of the numerous allegations of incompetency of counsel to determine whether they were barred by res judicata (see People v. Adams (1972), 52 Ill. 2d 224, 225, 287 N.E.2d 695, 696; People v. Mengedoht (1980), 91 Ill. App. 3d 239, 241, 414 N.E.2d 893, 894), or whether the waiver rule should be relaxed because trial counsel also represented defendant in his direct appeal as in this case. (See People v. Green (1975), 34 Ill. App. 3d 153, 340 N.E.2d 58, appeal denied (1976), 62 Ill. 2d 590; People v. McClain (1973), 15 Ill. App. 3d 929, 305 N.E.2d 423.) In this case, however, we are presented with the unique circumstance of an affidavit by defendant’s former counsel, Wayne B. Giampietro, filed in support of the charge defendant lacked effective assistance of counsel, in which his attorney states that it was impossible for him to prepare for the trial of defendant’s case because of other commitments. It is difficult for this court to draw any firm conclusions based only upon the general terms of Mr. Giampietro’s supporting affidavit, however, and it clearly raised an issue which must be explored in an evidentiary hearing.

An admission by a retained attorney that he did not prepare for the defense of a murder charge against his client, in support of a defendant’s claim he was ineffectively represented at trial, raises serious questions and has great potential for abuse. Mr. Giampietro is an able and experienced attorney; whether his affidavit represents his sincere opinion that his client lacked effective assistance of counsel at trial or is simply a tactical device offered in a continuing effort to assist defendant will be better understood after a full hearing.

We conclude this case must be remanded for an evidentiary hearing of the issues we have discussed. In counts II, IV, V, VII and VIII of his petition for post-conviction relief defendant also alleged he had been denied due process in other respects. These matters were not argued in this court, however, and are waived. See Ill. Rev. Stat. 1979, ch. 110A, pars. 341(e)(7), 612(i).

We also note that following the decision of the United States Supreme Court in Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708, the same standard in reviewing competency pertains to retained and appointed counsel, that being whether defendant’s attorney was actually incompetent in carrying out his duty to his client to defendant’s substantial prejudice. People v. Talley (1981), 97 Ill. App. 3d 439, 443, 422 N.E.2d 1084, 1087-88; People v. Scott (1981), 94 Ill. App. 3d 159, 163, 418 N.E.2d 805, 808; see also People v. Haywood (1980), 82 Ill. 2d 540, 543-44, 413 N.E.2d 410, 412; People v. Carlson (1980), 79 Ill. 2d 564, 584-85, 404 N.E.2d 233, 242.

Accordingly, the judgment of the circuit court of Du Page County will be reversed and this cause remanded for an evidentiary hearing.

Reversed and remanded.

SEIDENFELD, P. J., and LINDBERG, J., concur.