author: JUSTICE SULLIVAN

text:
    HUSEIN BECOVIC et al., Plaintiffs and Counterdefendants-Appellants, v. HARRIS TRUST & SAVINGS BANK, Trustee, Defendant-Appellee (Vincent O’Malley et al., Defendants and Counterplaintiffs and Counterdefendants-Appellees and Cross-Appellants; Cynthia R. Miller, Defendant and Counterplaintiff-Appellee and Cross-Appellee).
    First District (5th Division)
    No. 83—2274
    Opinion filed October 5, 1984.

      Theodore Birndorf, Seymour J. Layfer, and Barry B. Berk, all of Chicago, for appellants.
    Kenneth Ditkowsky and Jay Contorer, both of Ditkowsky & Contorer, of Chicago, for cross-appellants.
    David G. Lynch and Vincent A. Lavieri, both of Rudnick & Wolfe, of Chicago, for cross-appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from a partial summary judgment entered for defendant Cynthia Miller (Miller) on her counterclaim seeking a declaration that she is the sole beneficial owner of certain property held in trust by defendant Harris Trust & Savings Bank under trust number 35945 (the Harris trust), and a judgment against defendants Vincent and Christina O’Malley (the O’Malleys) for an amount due under a certain note. The sole issue before us is the propriety of that order.

It appears from the pleadings and documents attached thereto that this action arises from the sale of a 36-unit apartment building (the property). For some time prior to May 1, 1974, Miller and her husband, Joseph, were the beneficial owners thereof, with title being held by the National Bank of Albany Park as trustee. Various transactions then occurred, as evidenced by the following documents, each dated May 1,1974.

1. The National Bank of Albany Park, through a nominee, conveyed title to La Salle National Bank, as trustee under trust number 46985 (the La Salle trust). It appears that the beneficiary of that trust was David Kaufman (Kaufman).

2. La Salle National Bank, as maker and in its capacity as trustee, executed a bearer note in the principal amount of $329,500 (the La Salle note). The note recites that it is secured by a trust deed under trust No. 46985 and further states:

“It is agreed at the election of the holder *** hereof and without notice, the principal sum remaining unpaid hereon, together with accrued interest thereon, shall become at once due and payable *** in case of default on the payment of principal or interest when due in accordance with the terms hereof or in case at anytime hereafter the right to foreclose the trust deed shall accrue to the legal holders hereof under any of the provisions contained in said trust deed.”

The note also states that “[t]he makers, sureties, guarantors and endorsers of the note, jointly and severally, do hereby waive demand, presentment for payment, notice of non-payment and protest ***.” The O’Malleys signed the note as guarantors.

3. La Salle National Bank, as trustee, also executed a trust deed (the La Salle trust deed) for the property in favor of Chicago Title & Trust Co., as trustee, to secure the above note. Paragraph 15 thereof (the due-on-sale clause) provides in pertinent part:

“Time is of the essence hereof and if default be made in performance of any covenant herein contained or in making any payment under said Note or any extension or renewal thereof *** or if the Mortgagor or Guarantor shall sell said property under a contract for deed or in any other manner transfer title or beneficial interest to said property, then and in any of said events, the Mortgagee is hereby authorized and empowered, at its option, *** to declare, without notice, all sums secured hereby immediately due and payable whether or not such default be remedied by the Mortgagor or Guarantor, and apply toward the payment of said mortgage indebtedness of the Mortgagee to the Mortgagor or Guarantor, and said Mortgagee may also immediately proceed to foreclose said mortgage.” _

No signature other than that of a La Salle National Bank officer appears on the trust deed.

4. A trust agreement, No. 35945, between Harris Trust & Savings Bank and the O’Malleys, the first page of which bears the date May 1, 1974, recites that Harris Bank, as trustee, “is about to take title” to the property and names the O’Malleys as beneficiaries thereunder. Inserted under the declaration of the O’Malleys’ rights is a provision stating, “SUBJECT TO: Collateral Assignment dated June 21, 1974 to Cynthia R Miller.” The agreement was executed on July 17, 1974. Although it is agreed that, at some time, title to the property was transferred from the La Salle trust to the Harris trust, there is no document in the record evidencing that transaction.

5. An assignment by the O’Malleys to Miller of the beneficial interest in the Harris trust (the collateral assignment), the first page of which also bears the date May 1,1974, provides in pertinent part:

“This Assignment is made and given as collateral security for payment in full of (i) all principal and interest in that certain Note of the Assignor or its agents, dated May 1, 1974, in the original principal amount of $329,500 ***.
Upon nonpayment at maturity (whether by acceleration or otherwise) of the principal or interest on the indebtedness secured hereby, or at any time or times or from time to time thereafter, said Collateral Assignee may: (a) exercise any one or more of all of the rights or remedies set forth in the Note hereinabove described *** and, in addition, *** shall have full power and authority to exercise all the rights of a secured party under the Uniform Commercial Code of Illinois. Any requirement of the Code for reasonable notice shall be met if such notice is mailed, postage prepaid, to the Assignor at the address of the Assignor as shown on the records of the Collateral Assignee at least 5 days prior to the time of the sale, disposition or other event or thing giving rise to the requirement notice.”

The assignment was accepted by Miller on June 21, 1974, and received by Harris Bank on July 3,1974.

After possessing the property, collecting the rents, and making the required payments for approximately five years, the O’Malleys entered into a contract for sale of the subject property to plaintiffs, Husein and Ese Becovic (the Becovics). The document was made “subject to the rights that Cynthia R. Miller who holds Purchase Money Notes on the subject property has to the subject property.”

The O’Malleys and the Becovics then signed “Articles of Agreement for Warranty Deed” on February 29, 1980, which provided that the “conveyance to be made by Seller shall be expressly subject to *** (g) Mortgage to Dovenmuehle, Inc., Dated 12/11/62 Recorded 7/24/63 *** and Mortgage to Chicago Title & Trust Co., Trustee, dated 5/1/74 which will be paid by seller.” A rider attached thereto and made a part thereof states that the “entire Agreement is subject to the rights of Cynthia R. Miller in said property and in prior notes and security interests in said property as described in the terms of said security instruments and notes and notes and documents and rights of all parties hereto are made expressly subject thereto.”

The Becovics gave the O’Malleys a down payment of $80,000, entered into possession of the property, began collecting rents, and made periodic installment payments through and including June 1980. It is alleged that the O’Malleys, in turn, made the required installment payments to Miller.

On or about June 23, 1980, Miller gave notice that the beneficial interest in the Harris trust would be sold at a public sale pursuant to section 9 — 504 of the Uniform Commercial Code. (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 504.) The sale was held on July 8, 1980, at which Miller purportedly purchased the interest, as sole bidder, for an amount substantially less than the indebtedness remaining due under the note the O’Malleys had signed as guarantors.

The instant action was commenced by the Becovics when both Miller and the O’Malleys demanded payment from them. Their complaint is in the nature of an interpleader, and alleged that Miller’s demand was based on her purported purchase of the beneficial interest in the Harris trust, whereas the O’Malleys asserted that the sale was void and claimed the right to be paid pursuant to the articles of agreement for warranty deed. The Becovics requested that they be allowed to pay the contested funds into court, and that Miller and the O’Malleys interplead to resolve their differences.

Miller counterclaimed against the Becovics and the O’Malleys, asserting that she was the holder of the bearer note secured by the La Salle trust deed and assignment of beneficial interest in the Harris trust; that the O’Malleys’ sale of the property to the Becovics entitled her to foreclose under the terms of the due-on-sale clause contained in the trust deed; that with the right to foreclose, there accrued the right to accelerate payments due under the La Salle note, pursuant to the terms thereof; that acceleration had been declared and demand for payment made; that the O’Malleys had refused to pay, and the note was therefore in default; that under the terms of the collateral assignment, she was authorized to sell the security upon default on the note; and that a public sale was held on July 8, 1980, at which she purchased the interest in the Harris trust for $29,286.15 less than the amount due her under the note. Miller requested that she be declared the sole beneficiary under the Harris trust and entitled to an accounting and payment of all rents and profits since the date of sale; that she be granted judgment for possession as against the O’Malleys and the Becovics and a deficiency judgment for the $29,286.15 remaining due from the O’Malleys.

In response, the O’Malleys denied that they signed as guarantors of a bearer note on May 14 (sic), 1974 — alleging that the documents bearing the date May 1, 1974, had been backdated by Miller — or that they caused the note to be delivered to Miller. They asserted that they purchased the property from Kaufman, not from Miller; that Kaufman was the beneficiary of the La Salle trust; and that they had merely assumed the mortgage made by Kaufman, signing the note as guarantors upon Miller’s insistence. They also raised several affirmative defenses, including (1) that Miller is not the holder or owner of the La Salle note; (2) that there was no privity of contract between them and Miller; (3) that Miller waived her right to enforce the due-on-sale clause by consenting to the transfer from Kaufman to them, and by accepting payments of arrearages and installments due with prior knowledge of the contract sale to the Becovics; (4) that Miller released the O’Malleys as guarantors when she released Kaufman, the principal obligor; and (5) that Miller never declared a default or demanded payment of the balance due on the note. The O’Malleys also counterclaimed against the Becovics for $290,000, asserting that they had failed to make the payments required by the articles of agreement for warranty deed, and that by virtue of this default, the entire principal became immediately due and payable.

Miller and the O’Malleys filed cross-motions for partial summary judgment on the question of ownership of the beneficial interest in the Harris trust, and on September 6, 1983, the trial court granted Miller’s motion, finding that she became the sole beneficial owner under the Harris trust on July 8, 1980, by virtue of her acceleration of the indebtedness and purchase of the beneficial interest therein. The order declared that she was entitled to immediate possession and to all rents and profits from and after July 8, 1980. Judgment was also entered against the O’Malleys on the question of liability for the deficiency after the sale, and this appeal was then brought by the Becovics and the O’Malleys.

Opinion

It is contended here that (1) the trial court erred in ruling, as a matter of law, that the due-on-sale clause was enforceable against the O’Malleys; and (2) several questions of material fact were raised in the pleadings which rendered summary judgment for Miller improper.

Initially, we note that while summary judgment should be granted where the pleadings, exhibits, depositions, and admissions on file — together with the affidavits, if any — show there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005), it is a drastic measure to be granted only where the evidence, when construed most strongly against the moving party, establishes clearly and without doubt his right thereto (Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 456 N.E.2d 958).

We first consider the Becovics’ contention that the due-on-sale clause contained in the La Salle trust deed constituted an unreasonable restraint on alienation of the property. Acknowledging that in Baker v. Loves Park Savings & Loan Association (1975), 61 Ill. 2d 119, 333 N.E.2d 1, our supreme court held that due-on-sale clauses are valid, the Becovics nevertheless argue that the trend in cases decided since Baker is to examine the reasonableness of each due-on-sale clause on a case-by-case basis and to deny enforcement thereof absent a demonstration that it is necessary to protect against impairment of the security or risk of default, citing as an example the California supreme court opinion in Wellenkamp v. Bank of America (1978), 21 Cal. 3d 943, 582 P.2d 970, 148 Cal. Rptr. 379. We note, however, that the Baker court expressly rejected the case-by-case test of reasonableness, stating that “[sjince stability of real estate titles is of paramount importance it is necessary that the court follow a policy in construing restraints on alienation which will produce a reasonable degree of certainty,” and that “judging the reasonableness of [due-on-sale clauses] under the circumstances in each case would not promote the desired stability of titles ***.” Moreover, the supreme court has had occasion to reconsider this question in the recent cases of Provident Federal Savings & Loan Association v. Realty Centre, Ltd. (1983), 97 Ill. 2d 187, 454 N.E.2d 249, and Abdul-Karim v. First Federal Savings & Loan Association (1984), 101 Ill. 2d 400, 462 N.E.2d 488, where, in adhering to its holding in Baker, the court stated, “[t]his court recognizes due-on-sale provisions as valid per se” (101 Ill. 2d 400, 405, 462 N.E.2d 488, 490). Consequently, the Becovics’ argument that the clause in question here is unenforceable as a matter of law because its only purpose was to extract a higher rate of interest from them must fail under established law in this State.

The Becovics and the O’Malleys also contend that, even if valid on its face, the due-on-sale clause in this case was not enforceable because the O’Malleys did not sign the trust deed, which was the only instrument containing that proviso and, correlatively, that as subsequent purchasers from Kaufman, there was no privity of contract between them and Miller. Specifically, they point out that neither the nóte the O’Malleys signed as guarantors of the indebtedness secured by the La Salle trust deed nor the collateral assignment to Miller of the beneficial interest in the Harris trust contained a due-on-sale provision, and reason therefrom that Miller could not predicate an acceleration of the note or sale of the beneficial interest upon a provision not contained in those documents.

In support thereof, they cite 2140 Lincoln Park West v. American National Bank & Trust Co. (1980), 88 Ill. App. 3d 660, 410 N.E.2d 990, where, in affirming the trial court’s disallowance of the bank’s attempt to accelerate a note on the basis of a default of a due-on-sale clause not contained therein, the court stated:

“[W]e find that the trust deed and the note are wholly independent documents, and unless there is sufficient language in the note that would incorporate a provision in the trust deed, that provision is entirely ineffective as to the note.” (88 Ill. App. 3d 660, 664, 410 N.E.2d 990, 993.)

Subsequently, however, in Abdul-Karim v. First Federal Savings & Loan Association (1984), 101 Ill. 2d 400, 462 N.E.2d 488, wherein plaintiff sought a declaratory judgment that the due-on-sale clause which appeared in the mortgage but was neither incorporated nor specifically referred to in the note precluded the lender from foreclosing the mortgage, the court in Abdul-Karim stated that “to the extent it [2140 Lincoln Park West] held that the mortgage provision provided a covenant without a remedy [citation], the holding was in error,” but it agreed to the soundness of the general principle set out in Conerty v. Richtsteig (1942), 379 Ill. 360, 41 N.E.2d 476, and Oswianza v. Wengler & Mandell, Inc. (1934), 358 Ill. 302, 193 N.E. 123, on which the court in 2140 Lincoln Park West relied; namely, that “clauses in security instruments cannot affect notes unless they are also set forth in the note or at least incorporated by reference ***.” Abdul-Karim v. First Federal Savings & Loan Association (1984), 101 Ill. 2d 400, 408, 462 N.E.2d 488, 492.

An analogous situation was presented in Provident Federal Savings & Loan Association v. Realty Centre, Ltd. (1983), 97 Ill. 2d 187, 454 N.E.2d 249, wherein plaintiff, a federally-chartered lending institution, appealed from the dismissal of its complaint seeking foreclosure on a mortgage because of a default by defendant-mortgagor of the due-on-sale clause contained in the note but not in the mortgage instrument. Although the principal issue was whether Federal banking regulations preempted State limitations on due-on-sale clauses, in reversing the dismissal of the complaint and remanding for resolution of certain factual questions and consideration of equitable defenses which had been raised by the mortgagor, the court also held that the language of the mortgage, which “clearly and affirmatively” incorporated the terms of the note, was sufficient to give notice of the due-on-sale clause to subsequent purchasers.

Examining the note before us, we find that the La Salle trust deed was specifically referred to — both by name and number — in the first paragraph, and that it further recited:

“[P]ayment *** is secured by trust deed bearing even date herewith, to Chicago Title & Trust Co. ***. It is agreed that at the election of the holder *** and without notice, the principal sum remaining unpaid hereon, together with accrued interest thereon shall become at once due and payable * * * in case at any time hereafter the right to foreclose the said trust deed shall accrue to the legal holders hereof under any of the provisions contained in said trust deed. ” (Emphasis added.)

Thus, while it is true that the O’Malleys did not actually sign the La Salle trust deed, it appears that under the standards enunciated in Abdul-Karim v. First Federal Savings & Loan Association (1984), 101 Ill. 2d 400, 462 N.E.2d 488, and Provident Federal Savings & Loan Association (1983), 97 Ill. 2d 187, 454 N.E.2d 249, as well as the general principle set forth in 2140 Lincoln Park West v. American National Bank & Trust Co. (1980), 88 Ill. App. 3d 660, 410 N.E.2d 990, the specific references thereto, when read in conjunction with the language granting “the right to foreclose the trust deed *** under any of the provisions contained [therein]” was sufficient to incorporate the due-on-sale term of the trust deed into the note signed by the O’Malleys as guarantors, and to put them on notice that the holder of the note had the right to foreclose the mortgage and/or bring a personal liability action against them in the event of a default thereof.

However, as the O’Malleys also point out, Miller did not elect to pursue either of these remedial options; rather, she proceeded, pursuant to section 9 — 504 of the Illinois Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 504), to cause a public sale — at which she was the sole bidder — of the beneficial interest in the Harris trust, and to thereafter seek, by way of counterclaim in this action, a deficiency judgment against them for the $29,286.15 remaining unpaid on the La Salle note. Asserting that the sale was void, the O’Malleys essentially argue that the collateral assignment of the beneficial interest of the Harris trust was a contract independent of the La Salle loan transaction consisting of the trust deed containing the due-on-sale clause and the note secured by that deed, and that Miller should not therefore be permitted to rely on the provisions of the trust deed to trigger a right to sell the beneficial interest assigned to her under a separate and unrelated document.

It thus becomes necessary to determine whether the Harris trust instruments also sufficiently incorporate the due-on-sale clause of the La Salle trust deed as to permit a sale of the beneficial interest upon default of the latter. Initially, we note that although the parties agree that at some point title to the property was transferred from La Salle to Harris, the record contains no deed in trust or other instrument evidencing that conveyance or even establishing when it occurred; indeed, we find only two documents directly relating to the Harris trust transaction. The first is the trust agreement, No. 35945, which recites that Harris “is about to take title” to the property at issue, followed by a paragraph naming the O’Malleys as beneficiaries, under which is typewritten “Subject to Collateral Assignment dated June 21, 1974 to Cynthia Miller,” and while the first page bears the date May 1, 1974, the following page — on which the O’Malleys signed — states that the agreement was executed on July 17, 1974. The remainder of the document merely sets forth, in standard, preprinted form, the rights and duties of Harris as trustee. We find no language therein — nor does Miller point to any — incorporating the due-on-sale clause contained in the La Salle trust deed or the note secured thereby. Rather, she directs our attention to certain language included in the collateral assignment of the beneficial interest — the second document relating to the Harris trust transaction — which provides:

“[T]his assignment is made and given as collateral security for payment *** on that certain note of the Assignor, or its agents, dated May 1, 1974, in the original principal amount of $329,500”;

and further states that the collateral assignee

“may exercise any one or more of all of the rights or remedies set forth in the Note hereinabove described.”

Preliminarily, we note that Miller’s reliance on this language as support for her argument that her right to cause a public sale of the beneficial interest in the Harris trust accrued upon default of the due-on-sale clause in the La Salle trust deed presupposes our acceptance of the premise that the terms of the trust deed were sufficiently incorporated by reference into the La Salle note and, in turn, into the collateral assignment of the Harris trust through the above-quoted provisions — which is, of course, the very issue requiring resolution.

As we have already determined, the language of the La Salle note specifically referring to the trust deed, both by name and number, and generally incorporating all of the terms contained therein, was sufficient to entitle the holder of the note — a bearer instrument — to either foreclose the mortgage, sue on the note, or both, in the event of a default of a provision in the trust deed. In contrast, the collateral assignment, like the Harris trust agreement, is devoid of any reference whatsoever to the La Salle trust; and while it does specify that the “certain note” was dated May 1, 1974, we have examined the documents contained in the record relating to the property prior to the 1980 contract sale to the Becovics — which reflect at least three separate transfers thereof, involving several persons in addition to those who are parties in this action — and find that they all bear that date. Thus, we cannot assume, as Miller’s argument does, that the “certain note” referred to in the collateral assignment was that signed by the O’Malleys as part of the transfer from the La Salle trust to the Harris trust, particularly since it was alleged in the O’Malleys’ answer to Miller’s countercomplaint that the Harris trust was not established until July 1974, and that the documents relating thereto had been backdated by Miller. Although, as we have previously stated, the record contains nothing evidencing the actual conveyance of title from La Salle to Harris, the fact that the Harris trust agreement, providing that Harris was “about to take title” to the property, was not executed until July 17, 1974, seems to lend support for that allegation and thus raises questions of fact not only as to the identity of the note referred to in the collateral assignment, but also as to the accuracy and validity of the documents presented in evidence.

Moreover, as mentioned above, in Abdul-Karim v. First Federal Savings & Loan Association (1984), 101 Ill. 2d 400, 462 N.E.2d 488 (affirming 116 Ill. App. 3d 579, 451 N.E.2d 618), the note in issue contained a provision similar to the one in the collateral assignment here, which read, “[t]his note is secured by a mortgage of even date to said association ***.” While upholding the lender’s right to foreclose the mortgage because of a default of the due-on-sale clause contained therein, both the supreme and appellate courts noted that, being the only reference to the mortgage, the quoted language was not sufficient to incorporate the terms thereof into the note so as to also entitle the lender to a money judgment against the mortgagor in a suit on the note, notwithstanding the fact that the mortgagor had signed both documents.

In the light of the above, we cannot say that the evidence, when construed most strongly against Miller, so clearly establishes that the due-on-sale clause of the La Salle trust deed was sufficiently incorporated into the collateral assignment as to entitle her, as a matter of law, to a judgment on her counterclaim for a declaration that she is the owner of the beneficial interest of the Harris trust by virtue of her purchase at a public sale thereof.

Having determined that summary judgment for Miller was improper, we nevertheless consider the O’Malleys’ and the Becovics’ contention that certain affirmative defenses in the O’Malleys’ answer to Miller’s countercomplaint raised material questions of fact requiring a hearing.

Initially, we note that although the supreme court has held that due-on-sale clauses are valid per se (Provident Federal Savings & Loan Association v. Realty Centre, Ltd. (1983), 97 Ill. 2d 187, 454 N.E.2d 249) and are not to be tested for reasonableness on a case-by-case basis (Baker v. Loves Park Savings & Loan Association (1975), 61 Ill. 2d 119, 333 N.E.2d 1), the Baker court left undisturbed the borrower’s right to raise traditional equitable defenses, and stated that “a court may relieve a borrower from unconscionable or inequitable conduct of the lender [citation].” 61 Ill. 2d 119, 126, 333 N.E.2d 1, 5.

Asserting the equitable defenses of waiver, laches and unclean hands, the O’Malleys alleged that Miller (a) had prior knowledge of the January 1980 contract sale to the Becovics and, in fact, induced them to sell the property to the Becovics in order to cure arrearages on the loan; and (b) thereafter knowingly benefitted from the contract sale by accepting payment of the arrearages as well as two installment payments before conducting a public sale of the beneficial interest on July 8, 1980. On appeal, they argue that Miller’s failure to deny, or in any way respond to, these allegations in their pleadings constitutes a binding admission thereof and therefore renders summary judgment for Miller improper.

It is well settled that the failure to reply to new matter raised by way of affirmative defense in an answer or countercomplaint results in an admission of the allegations contained therein (Ill. Rev. Stat. 1979, ch. 110, par. 40(2); First Federal Savings & Loan Association v. American National Bank & Trust Co. (1968), 100 Ill. App. 2d 460, 241 N.E.2d 615), although such failure does not necessarily amount to an admission that the new matter constitutes a valid legal defense (Kratovil v. Thieda (1965), 62 Ill. App. 2d 234, 210 N.E.2d 819).

In her brief and in arguments before us, Miller responds that the O’Malleys failed to support their allegations with affidavits or depositions, and thus, the allegations standing alone did not create any triable issues of fact to which she was required to respond. This argument, however, ignores the fundamental rule that it is the burden of the party moving for summary judgment to establish that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005.) Only where the movant has made some evidentiary showing which refutes the allegations made must the party opposing summary judgment present counteraffidavits. (Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 456 N.E.2d 958.) Here, Miller presented nothing to controvert the O’Malleys’ allegations that she knew of the proposed contract sale to the Becovics; that she voiced no opposition to it; or that she thereafter knowingly accepted arrearage and installment payments derived from the proceeds of that sale. Consequently, we must accept these factual allegations as true. However, whether Miller’s failure to voice opposition to the sale or to refuse the payments tendered by the O’Malleys amounted to a waiver of her right to declare a default of the trust deed, and whether the lapse of time between these events and the notification to the O’Malleys of her intention to enforce the due-on-sale clause was an unreasonable delay which caused prejudice to them and to the Becovics and thus constituted laches, are questions requiring resolution by the trial court upon a full hearing. See Damen Savings & Loan Association v. Heritage Standard Bank & Trust Co. (1982), 103 Ill. App. 3d 301, 431 N.E.2d 34; First National Bank v. Brown (1980), 90 Ill. App. 3d 215, 412 N.E.2d 1078.

The O’Malleys also raise the defense of waiver on the ground that Miller did not enforce the due-on-sale clause when the property was transferred by Kaufman, as beneficiary of the La Salle trust, to them, as beneficiaries of the Harris trust, alleging that Miller also knew and acquiesced to that transaction. Although Miller did not directly respond to these allegations in her pleadings, she did assert, in a memorandum in support of her motion for summary judgment, that the O’Malleys — not Kaufman — were the beneficiaries of the- La Salle trust. The record is unclear as to Kaufman’s role in these transactions; however, if, as the O’Malleys allege, he was a bona fide purchaser of the beneficial interest in the La Salle trust from Miller, there remains the question whether, by virtue of her failure to enforce the due-on-sale clause upon Kaufman’s transfer of the property to the O’Malleys, she waived or should be estopped from enforcing her right to declare a default thereof upon the O’Malleys’ transfer to the Becovics. See First National Bank v. Brown (1980), 90 Ill. App. 3d 215, 412 N.E.2d 1078.

The O’Malleys also assert that there is a material question of fact as to whether Miller is the real party in interest in this action. They posit that Cynthia’s husband, Joseph Miller, is the person with whom they dealt since their purchase of the property, and that Cynthia is merely a “proxy or nominee” through whom Joseph is litigating his interests in the property. The record reveals, however, that the La Salle note which Miller purported to accelerate was a bearer instrument and that the assignment of the beneficial interest in the Harris trust by the O’Malleys was made to and accepted by Cynthia Miller. Under these circumstances, we cannot say that Cynthia Miller is not a real party in interest in this action.

Finally, the O’Malleys contend that there is a material question with regard to whether acceleration of the note was declared or demand for payment made. While it is true that the O’Malleys denied Miller’s allegations in the countercomplaint that she declared an acceleration of the La Salle note and demanded payment of the sum remaining due thereunder, our examination of the note reveals that demand for presentment for payment and notice of nonpayment and protest were expressly waived. The note further recites that payment shall “at once become due and payable without notice upon default” of a provision in the La Salle trust deed. Thus, assuming that Miller had the right to enforce the due-on-sale clause against the O’Malleys, the dispute over whether she declared acceleration or demanded payment of the sum remaining due on the note does not appear to have constituted such a material question of fact as to preclude summary judgment for Miller. See Solomon v. Baron (1984), 123 Ill. App. 3d 255.

For the reasons stated, the order of the trial court granting summary judgment for Miller is reversed and the cause remanded for further proceedings not inconsistent with the views expressed herein.

Reversed and remanded.

MEJDA, P.J., and PINCHAM, J., concur.


source: Caselaw Access Project

author: JUSTICE MILLER

license: Public Domain

text:
    HAROLD F. TENNEY, Plaintiff-Appellee, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—83—0432
    Opinion filed September 28, 1984.
    Rehearing denied November 16, 1984.
    Donald E. Brilley and Glen A. Featherstun, both of Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur, for appellant.
    Harold F. Tenney, of Tenney, Tietz & Heavner, of Decatur, for appellee.
   JUSTICE MILLER

delivered the opinion of the court:■

On January 21, 1983, plaintiff, Harold E Tenney, filed this action against American Family Mutual Insurance Company for legal fees and expenses incurred in the recovery of a subrogation claim. Following a bench trial, the trial court entered judgment for plaintiff in the amount of $694.31. Defendant, American Family Mutual Insurance Company, appeals.

The basic facts of the case are uncontroverted. On May 13, 1981, a vehicle driven by Robin Moore was struck in the rear by a vehicle driven by Barbara Spencer. Defendant, Moore’s insurer, paid him $2,042.50 under its medical payments coverage. On January 14, 1982, Moore retained the plaintiff to represent him in his claim against Spencer.

By letter dated October 29, 1981, defendant notified Moore that it had a subrogated claim against Spencer to the extent of the medical payments it had advanced. The letter advised that defendant would deal directly with Spencer’s insurer, State Farm Insurance Company, regarding the subrogation claim. Defendant also informed Spencer and State Farm of its subrogation claim, and of the company’s determination to collect.

On February 25, 1982, defendant expressly notified plaintiff that he was not to collect the subrogation claim. Plaintiff replied by letter, stating in part:

“I am aware of your subrogation rights but nonetheless want you to make payment [of Moore’s medical bills]. We will have to see what is involved in Robin’s claim against State Farm before we know whether you should contribute to his legal expenses. However, I acknowledge that you are denying responsibility at this time.”

At trial, plaintiff admitted that soon after he began representing Moore, he became aware that defendant did not wish him to collect the subrogation claim and would not pay him if he did so.

On November 24, 1982, plaintiff filed suit on behalf of Moore against Spencer. Shortly thereafter, a settlement was reached in the amount of $2,625 for bodily injury and $517.36 for damages to Moore’s automobile.

State Farm tendered a check made payable to Moore, plaintiff, and defendant. Plaintiff offered to endorse the check if defendant would agree that an endorsement would not constitute a waiver of plaintiff’s claim for attorney’s fees and expenses in connection with the recovery of the subrogation claim. Defendant refused to assent, demanded that plaintiff endorse the check, and threatened to file suit if he refused to do so. Plaintiff then filed the present claim against the defendant for legal fees and expenses.

The trial court ruled in favor of plaintiff by applying the “fund doctrine.” The “fund doctrine” is based on the equitable concept that an attorney who performs services in creating a fund should in equity and good conscience be allowed compensation out of the whole fund from those who seek to benefit from it. (Baier v. State Farm Insurance Co. (1977), 66 Ill. 2d 119, 361 N.E.2d 1100.)

“In order to recover under the doctrine it is necessary for a plaintiff seeking recovery from a subrogee to show (1) that the fund was created as a result of legal services performed by an attorney *** (2) that the subrogee did not participate in the creation of the fund, and (3) that the subrogee benefited out of the fund that was created.” Smith v. Marzolf (1980), 81 Ill. App. 3d 59, 64, 400 N.E.2d 949, 953.

Defendant argues that the fund doctrine does not apply because: (1) plaintiff was informed that he was not representing defendant, (2) yet plaintiff forced his services on defendant, and (3) defendant assisted in creation of the fund.

Defendant claims that its efforts, and not plaintiff’s, created the fund. The record does not support this argument. Plaintiff filed suit on Moore’s behalf, prepared interrogatories, took other preliminary steps for discovery, and arranged for Moore to be examined by a medical expert in preparation for litigation. The record indicates that it was through plaintiff’s negotiation that the suit was settled.

Defendant asserted its subrogation claim to Spencer and State' Farm by letter and indicated that it would look to State Farm for payment. However, the correspondence also indicated that defendant merely expected State Farm to reimburse it after State Farm settled with Moore. Defendant did nothing to enforce its claim by legal process. State Farm denied all liability and offered no settlement until plaintiff filed the lawsuit on behalf of Moore.

Illinois courts have recognized that the fund doctrine should be used with caution. (Powell v. Inghram (1983), 117 Ill. App. 3d 895, 453 N.E.2d 1163; Boehm & Weinstein, Chartered v. City of Chicago (1978), 62 Ill. App. 3d 68, 379 N.E.2d 4; Maynard v. Parker (1979), 75 Ill. 2d 73, 387 N.E.2d 298.) In Maynard, the plaintiff was obligated to pay his hospital bill whether or not he recovered anything on a personal injury suit. The supreme court held that the fund doctrine did not apply and that the hospital was not required to pay a portion of the plaintiff’s attorney fees even though the hospital’s statutory lien against the plaintiff’s personal injury claim was satisfied with the funds obtained by the settlement of plaintiff’s claim. The court distinguished the situation in Maynard from the situation in which a plaintiff is obligated to pay the subrogee only in the event, and to the extent, that any net recovery is obtained.

In Boehm & Weinstein, the court held that the fund doctrine did not apply where the defendant merely had a lien for plaintiff’s medical expenses which was satisfied from the proceeds of the settlement of plaintiff’s tort action. The court stated that the fund doctrine should be applied only in cases where the subrogee is an insurance carrier and there is an express subrogation agreement between the insured and the insurer, requiring the insured to initiate legal action against the tortfeasor.

An issue similar to that presented in this appeal was addressed in the recent case of Powell v. Inghram (1983), 117 Ill. App. 3d 895, 453 N.E.2d 1163. In Powell, the plaintiff had signed a subrogation agreement with the defendant insurance company. The agreement required plaintiff to pay her insurer from any recovery received by judgment or settlement. The defendant insurance company notified plaintiff’s attorney of its subrogation lien, and disclaimed any intention of employing plaintiff’s attorney to collect the lien, but requested him to “protect” its interests in the event of a settlement. The appellate court held that the insurance company’s refusal to hire the plaintiff’s attorney while seeking to benefit from his services in obtaining a fund from which it would be reimbursed required application of the fund doctrine.

Powell differs from the case at bar significantly. In Powell, the plaintiff, through her attorney, had filed suit against the tortfeasor several months before any correspondence occurred between the attorney and plaintiff’s insurance company. This suit sought the total amount of damages arising from the tort. Ten months later, the plaintiff submitted a claim for medical expenses to her insurance company. The claim included her agreement to reimburse her insurance company in the event damages were recovered by settlement or judgment. Plaintiff’s insurance company then sent plaintiff’s attorney a letter notifying the attorney of its subrogation rights and indicating that it would not be employing the attorney. Therefore, in Powell the attorney had filed suit and had been involved in the case for 10 months before the insurance company indicated that he would not be retained as counsel.

In the case at bar, the attorney admitted that he was aware soon after he began representing Moore that defendant did not want him to collect its subrogation claim and did not intend to pay him anything if he did. The attorney filed suit on behalf of his client nine months after this notification. We find no reason why plaintiff could not have filed suit on behalf of his client for damages minus the insurer’s subrogation claim. The insurance company had the right to file suit on its own behalf for its subrogation claim. Hitchcock Air Conditioning, Heating & Piping Co. v. Hazen (1976), 43 Ill. App. 3d 483, 357 N.E.2d 69; Ill. Rev. Stat. 1981, ch. 110, par. 2 — 403(a).

A claim for attorney fees under the fund doctrine is an equitable remedy. One is not entitled to recover for services, however, when the services have been knowingly rendered for an unwilling recipient. (See Pope v. Speiser (1955), 7 Ill. 2d 231, 130 N.E.2d 507.) This principle applies to recovery for attorney fees under the fund doctrine. Powell differs from the case at bar because the attorney in Powell had filed suit and had been involved with the case for 10 months before he was notified by the insurance company that the insurer would be an unwilling recipient. The attorney in the case at bar admitted that he became aware that the insurance company would not pay for his services shortly after he undertook representation of his client, Moore.

Under the circumstances of the case at bar, we find that it would be inequitable to apply the fund doctrine. Accordingly, we reverse the judgment of the circuit court of Macon County.

Reversed.

GREEN and WEBBER, JJ., concur.


author: JUSTICE HEIPLE

text:
    WILLIAM SCHRANZ, Indiv. and as Next Friend of Kimberly Schranz, Plaintiff-Appellant, v. DOROTHY HALLEY, Defendant-Appellee.
    Third District
    No. 3—84—0098
    Opinion filed October 9, 1984.

      Andrew J. Kleczek, of Gray, Kleczek & Kielian, P.C., of Joliet, for appellants.
    Harry Leinenweber, of Dunn, Leinenweber & Dunn, Ltd., of Joliet, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This case has been tried twice to a jury. After the first trial, we reversed a verdict in favor of defendant because of an error in a jury instruction. Schranz v. Halley (1983), 114 Ill. App. 3d 159, 448 N.E.2d 601.

Although the facts are well summarized in our first opinion, they are uncomplicated and are here restated for convenience and clarity. Suffice it to say that Kimberly Schranz, a seven-year-old girl, was leaning against a second-story exterior stair railing of a next-door apartment. The stair railing gave way and she fell to the ground. She was injured. She sued the building’s owner.

On retrial, the jury returned a verdict in the sum of $556.56 for the minor plaintiff. That figure was achieved by a finding that the plaintiff had suffered damages in the sum of $1,391.40 for her “medical bills as presented.” This latter figure was reduced by 60%, which was the degree of negligence the jury attributed to the plaintiff.

Once again, we reverse and remand.

We reverse because the jury, although this time finding for the plaintiff, found the plaintiff’s damages to be limited to the exact penny of the medical bills. So that this finding could not be misunderstood, the jurors even pencilled in the words “medical bills as presented” on the verdict form. The element of pain and suffering was totally discounted. If damages awarded are manifestly inadequate or if an important element of the damages has been overlooked, then the reviewing court may order a new trial. (Stamat v. Merry (1979), 78 Ill. App. 3d 445, 397 N.E.2d 141.) To determine whether damages are inadequate, the record as a whole must be considered. Potter v. Rodrick (1979), 77 Ill. App. 3d 7, 345 N.E.2d 746.

While the testimony regarding the less tangible elements of damages was somewhat scanty, it is clear from the record that a verdict reflecting only the amount of medical expenses is palpably inadequate. As to other possible elements such as disability and future pain and suffering, we defer to the jury. There was considerable testimony that Kimberly had made a complete recovery. Furthermore, the only possible lingering effects testified to were Kimberly’s headaches. However, these complaints are entirely subjective. Thus, we are reluctant to substitute our judgment for the jury as to these elements. (Bledsoe v. Amiel (1978), 57 Ill. App. 3d 54, 372 N.E.2d 1022.) Nonetheless, a new trial is required. The jury’s failure to award damages for past pain and suffering finds no support in the record. Kimberly suffered a basal skull fracture, a concussion and cerebral contusions. She was hospitalized for a week. Dr. McCoy testified that the injuries suffered were consistent with a diagnosis of pain. Kimberly testified that she experienced headaches and double vision for a month after she was released from the hospital. Neither witness was contradicted on these points. While we believe it was within the province of the jury to reject a finding of future pain and suffering due to a lack of objective symptoms, the experiencing of pain is such an obvious and natural result of the injury suffered here that a failure to award damages therefor constitutes reversible error.

Numerous cases mandate reversal where the jury has ignored elements of damages. In Kelly v. Reynolds (1971), 132 Ill. App. 2d 1098, 271 N.E.2d 370, plaintiff was awarded a verdict of medical expenses only. The nature and extent of the injuries (significant fractures; permanent knee damage) served as the basis for the reviewing court’s finding of inadequate damages. Such was also the case in Stamat v. Merry (1979), 78 Ill. App. 3d 445, 397 N.E.2d 141. There, a verdict of $11,000 for an auto accident victim was reversed. Special damages of $9,246.10 were proved. Plaintiff received numerous facial fractures resulting in permanent injuries. While we agree that the objective injuries suffered in this case are not as significant as those sustained in Kelly and Stamat, it is clear that the inadequacies that mandated reversals in those cases are present here.

Plaintiff also asks that we reverse the jury’s finding that she was 60% negligent. It is claimed that no evidence was presented to rebut the presumption that a seven-year-old child cannot be contributorily negligent.

The rule in Illinois on the contributory negligence of children is as follows:

“A child between the ages of 7 and 14 is presumed to be incapable of contributory negligence ***. The presumption, however, may be rebutted by offering proof that the particular child, based on age, mental capacity, intelligence and experience, was accountable for his actions ***. Once such proof is offered, the question of contributory negligence becomes a question of fact which must be left to the jury to determine.” Riley v. Johnson (1981), 98 Ill. App. 3d 688, 691-92, 424 N.E.2d 842, 846.

The record indicates that plaintiff has waived the benefit of this presumption. Plaintiff tendered an instruction that contributory negligence was not an issue in this case. The trial judge refused the instruction, but plaintiff did not object on the specific ground of this presumption. Nor did plaintiff object on this ground to the giving of contributory/comparative negligence instructions.

For the reasons given, the judgment of the trial court in this case is again reversed and the cause is remanded for retrial solely on the issue of damages. Since we do not disturb the jury’s finding of 60% contributory negligence, the trial judge shall enter judgment in the amount of 40% of the verdict on remand.

Affirmed in part, reversed in part and remanded.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE HEIPLE JUSTICE BARRY,

text:
    THE PEOPLE ex rel. JOHN A. BARRA, State’s Attorney of Peoria County, Plaintiff-Appellee, v. DONNA LEE, Defendant-Appellant.
    Third District
    No. 3—84—0033
    Opinion filed October 10, 1984.
    BARRY, J., specially concurring.
    Kevin W. Lyons, Ltd., of Peoria, for appellant.

      John A. Barra, State’s Attorney, of Peoria (John X. Breslin and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

On September 1, 1983, defendant Donna Lee was driving a 1968 Chevrolet van in the village of Bartonville. Three friends accompanied her. A Bartonville police officer spotted the flashing yellow light of what he believed to be a street barricade in the rear of the van.

Upon stopping the van, the officer found open beer, as well as the barricade. Lee was then placed under arrest. A search of her purse incident to the arrest uncovered a small plastic bag containing several pills. These pills were later determined to contain a controlled substance.

Defendant ultimately pleaded guilty to unlawful possession of a controlled substance. She was sentenced to two years’ probation and ordered to pay costs. The People then petitioned the court to forfeit the van pursuant to article 36 of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 36 — 1 et seq.). The court ordered the vehicle forfeited.

The forfeiture statute states, in pertinent part:

“Sec. 36 — 2. Action for forfeiture, (a) *** If the State’s Attorney does not cause the forfeiture to be remitted he shall forthwith bring an action for forfeiture in the Circuit Court ***. *** The State shall show at such hearing by a preponderance of the evidence, that such *** vehicle was used in the commission of an offense described in section 36 — 1.” Ill. Rev. Stat. 1981, ch. 38, par. 36 — 2.

The People cite People ex rel. Mihm v. Miller (1980), 89 Ill. App. 3d 148, 411 N.E.2d 592, as the leading case supporting forfeiture for this kind of offense. There, the evidence showed that the controlled substance was found on defendant’s person after stepping out of the vehicle upon request. The Miller court relied principally upon People ex rel. Hanrahan v. One 1965 Oldsmobile (1972), 52 Ill. 2d 37, 284 N.E.2d 646, rev’d on other grounds, Robinson v. Hanrahan (1972), 409 U.S. 38, 34 L. Ed. 2d 47, 93 S. Ct. 30. The critical holding in Hanrahan was that no distinction should exist for vehicles used in smuggling and vehicles used to “facilitate commission of an alleged felony” (52 Ill. 2d 37, 44, 284 N.E.2d 646). The Miller court applied this reasoning as follows:

“While there may be some question as to whether an automobile facilitates the actual possession of a very small amount of a controlled substance which is carried on the person of the driver, to the extent the automobile adds a dimension of privacy, however, it does facilitate the possession.” 89 Ill. App. 3d 148, 149-50, 411 N.E.2d 593.

The doubt expressed in Miller finds full fruition here. In Miller the contraband was located in the defendant’s pocket. The contraband fell from the defendant’s pocket, thus demonstrating that the defendant’s pocket was neither a secure nor a secret place. The vehicle in Miller thus afforded the defendant the exclusive means of privacy. In the instant case, on the other hand, the contraband was completely concealed within a closed purse. Thus, the vehicle furnished no additional dimension of privacy. Accordingly, it strains the imagination to characterize the vehicle in question as facilitating the commission of this offense.

For these and the foregoing reasons, the decision of the circuit court is reversed. The vehicle in question shall be remitted forthwith to the defendant.

Reversed.

STOUDER, J., concurs.

JUSTICE BARRY,

specially concurring.

Contra to Miller, here the vehicle did not facilitate the possession of the substance, and I concur.


author: JUSTICE STOUDER

text:
      In re MARRIAGE OF JAMES V. MAGNUSON, Petitioner and Counterrespondent-Appellant, and MARY ELIZABETH GOODELL MAGNUSON, Respondent and Counterpetitioner-Appellee.
    Third District
    No. 3—84—0073
    Opinion filed October 2, 1984.

      Rolfe F. Ehrmann, of Ehrmann & Gehlbach, of Dixon, for appellant.
    James L. Reese, of Blodgett, Reese, Merritt & Albert, of Rock Falls, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The petitioner-appellant, James V. Magnuson (hereafter the husband), appeals from an order of the circuit court of Whiteside County awarding prospective attorney fees to the respondent-appellee, Mary Elizabeth Goodell Magnuson (hereafter the wife). The husband raises two issues on appeal. First, he argues that the circuit court was without jurisdiction to award attorney fees, because appellate court jurisdiction had previously attached. Second, the husband contends that, even if the circuit court retained jurisdiction, its award of $2,000 was an abuse of discretion. We affirm.

On December 7, 1983, the wife filed in the circuit court an amended petition for prospective attorney fees. The petition requested payment of fees to be incurred in defense of an appeal taken by the husband in the principal cause. On January 3, 1984, a hearing was scheduled on the wife’s petition. The husband entered a special appearance contesting subject matter jurisdiction. The court ruled that it had jurisdiction to award prospective attorney fees, and after a hearing on the merits, awarded such fees to the wife in the requested amount of $2,000.

The first issue presented by the husband for our review is whether the trial court retained jurisdiction to award attorney fees incurred in a pending appeal. We have previously spoken to this issue, holding that a trial court, after notice of appeal has been filed, retains jurisdiction to award attorney fees for the defense of an appeal. (In re Marriage of McBride (1981), 102 Ill. App. 3d 84, 429 N.E.2d 867.) The trial court may entertain matters that are purely collateral or supplemental to the appeal, and the award of attorney fees is such a collateral matter. In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058, 419 N.E.2d 598.

The rationale behind retention of jurisdiction by the circuit court was explained in McBride:

“Permitting the filing of a notice of an appeal to serve as a bar to an award of attorney fees for the purpose of defending an appeal is fraught with danger and highly undesirable results. It can be envisioned that the denial of an award of attorney fees could be tantamount to the foreclosure of a party’s right to defend an appeal.” (In re Marriage of McBride (1981), 102 Ill. App. 3d 84, 87, 429 N.E.2d 867, 870.)

We recognize, as the husband points out, that the courts of this State are not in accord on this issue (see In re Marriage of Pease (1982), 106 Ill. App. 3d 617, 435 N.E.2d 1361), but we find nothing in the husband’s argument which would persuade us to adopt a position contrary to that enunciated in McBride.

The husband next argues that the circuit court abused its discretion in awarding attorney fees in the amount of $2,000. He argues that because the record fails to reflect a basis upon which prospective attorney fees could be awarded, the circuit court’s award of $2,000 was speculative and unsubstantiated. Quite to the contrary, we find ample basis in the record for the court’s determination.

A full evidentiary hearing was held at which both parties were given the opportunity to present evidence of their respective financial statuses. The wife submitted an affidavit which showed her expenses to be greater than her income. The wife testified that she had custody of the couple’s two minor children, and that she worked two part-time jobs in order to make ends meet. She testified that her yearly income was less than half of what her husband made. Finally, the wife testified that she owned no real estate, but that her husband owned two houses and an interest in some apartments.

The wife’s attorney testified that the appeal would require, at an absolute minimum, 30 hours of his time and that he charged $75 per hour. Thus, his services would cost somewhat more than the $2,000 requested by the wife.

The husband did not personally appear, and consequently, did not testify as to his financial status. The husband’s attorney requested that the court take notice of the husband’s testimony and affidavit submitted in the principal cause. The court denied counsel’s request, noting that the cause began some 18 months earlier, and the husband’s income and expenses had changed during that period. Further, the court noted that the husband had notice of the hearing and could have appeared had he wanted to present evidence of financial status.

After hearing all the evidence, the court found that $2,000 was a reasonable amount, representing the minimum amount necessary to adequately defend the appeal. Further, the court stated that without the award, the wife would likely be unable to adequately defend the appeal.

On the basis of the foregoing, we cannot say that the'trial court abused its discretion. Accordingly, the judgment of the circuit court of Whiteside County is affirmed.

Affirmed.

SCOTT and HEIPLE, JJ., concur.


author: JUSTICE SCOTT

text:
      In re ESTATE OF MULVANEY, Deceased (Clyde Mulvaney et al., Petitioners-Appellants, v. Willard A. Mulvaney et al., Respondents-Appellees).
    Third District
    No. 3—84—0112
    Opinion filed October 2, 1984.

      Robert G. Day, Jr., of Moehle, Swearingen & Day, Ltd., of Peoria, for appellants.
    Brent H. Gwillim, of Heyl, Royster, Voelker and Allen, and Sidney D. Davidson, both of Peoria, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

The petitioners, Clyde Mulvaney and Lorraine Smallberger, are two of the five children of the decedent, Esther Mulvaney. The respondents, Willard A. Mulvaney and Dorothy Garner, are also the children of Esther and are additionally the co-executors of Esther’s estate. The petitioners filed suit in the probate proceedings for Esther’s estate, alleging that the executors had mismanaged Esther’s estate. The trial court granted the executors’ motion to strike the petitioners’ jury demand. Following a bench trial, the trial court entered judgment for the executors. The petitioners now bring this appeal.

One asset in Esther’s estate was a 150-acre farm. Sixty-six acres of the farmland were tillable. Esther died in 1979. The executors fulfilled a lease for the year 1979 entered into by Esther with Harold Pauli for rental of the 66 acres. Esther rented the farmland to Pauli for $35 per acre. Following Esther’s death, the executors continued to rent the land to Pauli. During the years 1980 and 1981, Pauli paid rent of $35 per acre. In 1982, the rent charged was increased to $40 per acre.

The petitioners filed suit alleging that the executors had negligently managed this farmland by renting it at less than its fair market rental value from 1979 to 1982. Initially, their petition was filed in the probate proceedings as a citation to discover assets. This petition was dismissed. The petitioners then filed an amended petition alleging negligent mismanagement. While no specific statute was cited as the basis for the petition, the petitioners filed the petition in the probate proceedings and alleged that the negligent mismanagement arose out of the executors’ violation of section 20 — 2 of the Probate Act of 1975 (hereinafter the Probate Act) (Ill. Rev. Stat. 1983, ch. 1101^, par. 20— 2).

This amended petition was also dismissed. However, the dismissal was vacated pursuant to an agreement between the parties. In their motion to vacate the dismissal, the executors acknowledged that the petitioners had stated a cause of action under section 24 — 18 of the Probate Act (Ill. Rev. Stat. 1983, ch. 110V2, par. 24 — 18).

The trial court subsequently granted the executors’ motion to strike the petitioners’ jury demand. The cause proceeded to trial. The petitioners presented evidence that the fair market rental value of the land was $80 per acre. The petitioners also introduced evidence that the average rental value for farmland in Illinois at this time was $107 to $119 per acre. The executors presented evidence that the fair market rental value of the land was approximately $35 per acre.

The trial court found that the executors had not breached their duty to the petitioners. Judgment was entered for the executors and the petitioners appealed.

The petitioners raise two issues on appeal. They assert first that the trial court erred in striking their jury demand. The petitioners rely for their argument on article I, section 13, of the Illinois Constitution, which provides: “The right of trial by jury as heretofore enjoyed shall remain inviolate.”

The flaw in the petitioners’ argument is that they fail to demonstrate any common law or statutory right to a trial by jury in the type of action they have pursued in the instant case. Probate is a purely statutory proceeding, and, unless specifically provided for by statute, no right to a jury exists. (In re Estate of Grabow (1979), 74 Ill. App. 3d 336, 392 N.E.2d 980.) Thus, no common law right to a jury trial is present to be preserved in probate proceedings.

Further, the petitioners brought suit for mismanagement, a statutory cause of action established under section 24 — 18 of the Probate Act. This cause of action is established in that portion of the Probate Act dealing with accounting by the representative. (Ill. Rev. Stat. 1983, ch. 11072, pars. 24 — 1 to 24 — 22.) Nowhere in this statutory scheme is a right to trial by jury established.

The petitioners argue that a right to a jury trial is established in sections 16 — 3 and 18 — 6 of the Probate Act. (Ill. Rev. Stat. 1983, ch. 11072, pars. 16 — 8, 18 — 6.) It is clear that the right to a jury trial established in these sections is limited to actions for citations to discover assets and for claims against the estate, respectively. To read the right to a jury trial from these limited proceedings into the remainder of the Probate Act would render the sections meaningless because of their similarity. It is well established that a statute should be construed so that no clause is rendered meaningless or superfluous. (People v. Lofton (1977), 69 Ill. 2d 67, 370 N.E.2d 517.) Had the legislature intended to create the right to trial by jury in proceedings brought under section 24 — 18, it would have expressly done so. It did not.

The right to a jury trial did not exist under common law and was not established under the Probate Act. The trial court properly struck the petitioners’ demand for a trial by jury.

The petitioners’ second argument on appeal is that the trial court’s judgment is contrary to the manifest weight of the evidence. The standard for determining whether a representative has mismanaged a decedent’s estate is whether the representative acted as an ordinarily prudent and cautious person who is the trustee of property of another. (In re Estate of Busby (1937), 288 Ill. App. 500, 6 N.E.2d 451; In re Estate of Venturelli (1977), 54 Ill. App. 3d 997, 370 N.E.2d 290.) The petitioners argue that the executors violated this standard by failing to submit the real estate lease to the court, as required in section 20 — 2 of the Probate Act (Ill. Rev. Stat. 1983, ch. 11072, par. 20-2).

We initially reject any suggestion that failure to submit a lease under section 20 — 2 constitutes a per se breach of the representatives’ duty. A breach of duty must be shown on the evidence.

In the instant case, both parties presented evidence as to the fair market rental value of the land. The executors continued to lease to a party who was known to them from prior dealings. We find that the court did not err in determining that the executors’ actions did not constitute a breach of their duty to act as ordinarily prudent and cautious people.

The executors have filed a motion to strike that part of the petitioners’ reply brief in which the petitioners, for the first time, raise the argument that they are entitled to a jury based upon their designation of the instant claim as a common law tort action joined with a probate proceeding. The raising of a new argument in a reply brief does not comport with the requirements of Supreme Court Rule 341(g) (87 Ill. 2d R. 341(g)). The executors’ motion is therefore granted.

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

Affirmed.

HEIPLE and STOUDER, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WENDY LEE MOORHEAD, Defendant-Appellant.
    Second District
    No. 2—83—1013
    Opinion filed October 15, 1984.
    Rehearing denied November 20, 1984.

      G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Judith M. Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Wendy Lee Moorhead, was charged by information with solicitation -to commit murder (Ill. Rev. Stat. 1988, ch. 38, par. 8 — 1(a)) in that she, with the intent to commit murder (Ill. Rev. Stat. 1983, ch. 38, par. 9 — -1(a)(1)), requested Paul Olson, a special agent with the Illinois Department of Law Enforcement, to kill her husband, John Moorhead. Following a mistrial in her original trial when the jury was unable to reach a verdict, she was found guilty of that offense in a second jury trial. Defendant was subsequently sentenced to a 25-year term of imprisonment.

Two issues are raised on appeal: (1) whether defendant was denied her constitutional rights to proportionate penalties and due process of law where the maximum penalty provided for solicitation to commit murder, 30 years, is more severe than the maximum penalty provided for conspiracy to commit murder, 7 years, since, she contends, solicitation is a less serious offense; and (2) whether the 25-year sentence of imprisonment is excessive.

Preliminarily, we consider the State’s contention that the constitutional issue has been waived by defendant’s failure to raise it in the trial court. While the general rule is that the failure to raise the issue of a statute’s constitutionality in the trial court is a waiver of that issue on review (People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353; People v. Luckey (1969), 42 Ill. 2d 115, 245 N.E.2d 769; People v. Coleman (1983), 120 Ill. App. 3d 851, 459 N.E.2d 5), it has been held that where the conviction was under an unconstitutional statute, it is a nullity, and there is no need for a defendant to preserve the error by post-trial motion since the conviction is void and can be attacked at any time. (People v. Wagner (1982), 89 Ill. 2d 308, 311, 433 N.E.2d 267.) Where, as here, a substantial question of constitutionality is raised, which, if sustained, would make void the applicable statute or a pertinent part thereof, we may decline to apply the waiver rule and address the merits of the contention even though we may upon analysis ultimately reject the contention. (People v. McNeal (1983), 120 Ill. App. 3d 625, 627-29, 458 N.E.2d 630; see also People v. Coleman (1983), 120 Ill. App. 3d 851, 459 N.E.2d 5.) We decline to apply the waiver rule to the constitutional issue presented here.

Defendant contends that the maximum penalty for solicitation to commit murder is unconstitutional because there is a violation of the due process clause under the Illinois and Federal constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2) which, she maintains, require that the statutory scheme of sentencing must be “reasonably designed to remedy the evil at which it is aimed.” Defendant also asserts that the policy underlying section 11, article I, of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 11), which provides for penalties to be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship, is violated here. More specifically, defendant argues that conspiracy to commit murder is a more serious offense and presents a greater danger to the public than solicitation to commit murder, yet the maximum penalty for conspiracy to commit murder is imprisonment for seven years, while the maximum penalty for solicitation to commit murder is imprisonment for 30 years.

Several arguments are advanced by defendant to support her theory that conspiracy to commit murder is the more serious offense. Defendant states that while in both solicitation and conspiracy the prosecution must prove the defendant had the intent to commit the offense of murder, the offense of conspiracy not only requires the involvement of two or more persons, but also requires the commission of an act in furtherance of the agreement to commit murder. She also contends that two or more individuals agreeing to act in concert to commit an offense presents a greater threat to the public than one acting alone and a greater likelihood that the object offense will actually be committed.

The State basically contends that from the statutory definitions of both offenses it cannot be determined that solicitation is a less serious offense, and looking to the penalties provided it is clear that the legislature has determined that solicitation to commit murder is more serious than conspiracy to commit murder. Thus, the State argues that courts should not interfere with this legislative authority unless the challenged penalty is clearly in excess of the very broad and general constitutional limitations applicable.

The elements of the offense of solicitation are:

“A person commits solicitation when, with intent that an offense be committed, he commands, encourages or requests another to commit that offense.” (Ill. Rev. Stat. 1983, ch. 38, par. 8 — 1(a).)

The elements of the offense of conspiracy are:

“A person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement is alleged and proved to have been committed by him or by a co-conspirator.” (Ill. Rev. Stat. 1983, ch. 38, par. 8 — 2(a).)

The penalty for solicitation is as follows:

“A person convicted of solicitation may be fined or imprisoned or both not to exceed the maximum provided for the offense solicited: Provided, however, the penalty shall not exceed the corresponding maximum limit provided by subparagraph (c) of Section 8 — 4 of this Act, as heretofore and hereafter amended.” (Ill. Rev. Stat. 1983, ch. 38, par. 8 — 1(b).)

As set forth in the penalty section for solicitation, the maximum penalty is linked to the corresponding maximum penalty for the offense of attempt, which is as follows:

“A person convicted of an attempt may be fined or imprisoned or both not to exceed the maximum provided for the offense attempted but, except for an attempt to commit the offense defined in Section 33A-2 of this Act,

(1) the sentence for attempt to commit murder is the sentence for a Class X felony;

(2) the sentence for attempt to commit a Class X felony is the sentence for a Class 1 felony;

(3) the sentence for attempt to commit a Class 1 felony is the sentence for a Class 2 felony;

(4) the sentence for attempt to commit a Class 2 felony is the sentence for a Class 3 felony; and

(5) the sentence for attempt to commit any felony other than those specified in Subsections (1), (2), (3) and (4) hereof is the sentence for a Class A misdemeanor.” (Ill. Rev. Stat. 1983, ch. 38, par. 8 — 4(c).)

The penalty for conspiracy is as follows:

“A person convicted of conspiracy may be fined or imprisoned or both not to exceed the maximum provided for the offense which is the object of the conspiracy, except that if the object is an offense prohibited by Sections 11 — 15, 11 — 16, 11— 17, 11-19, 24 — 1(a)(1), 24 — 1(a)(7), 28-1, 28-3 and 28-4 of the ‘Criminal Code of 1961’, approved July 28, 1961, as amended or prohibited by Sections 401, 402, 403, 404, 406(b) or 407 of the ‘Illinois Controlled Substances Act’, enacted by the 77th General Assembly, or an inchoate offense related to any of the aforesaid principal offenses the person convicted may be sentenced for a Class 3 felony however, conspiracy to commit treason, murder, or aggravated kidnapping shall not be sentenced in excess of a Class 2 felony, and conspiracy to commit any offense other than those specified in this subsection shall not be sentenced in excess of a Class 4 felony.” (Ill. Rev. Stat. 1983, ch. 38, par. 8 — 2(c).)

From a comparison of these provisions, it is apparent, as defendant asserts, that the maximum penalty provided for solicitation to commit murder, upon reference to the penalty for attempt, is the maximum sentence for a Class X felony, which is 30 years, whereas the maximum penalty for conspiracy to commit murder is not in excess of the maximum penalty for a Class 2 felony, which is seven years.

Until adoption of the Criminal Code of 1961, solicitation was not a statutory offense in Illinois but w’as recognized as a common law offense. Our supreme court held in People v. Stroner (1983), 96 Ill. 2d 204, 449 N.E.2d 1326, that solicitation is not a lesser included offense of conspiracy. (96 Ill. 2d 204, 209-10, 449 N.E.2d 1326.) Solicitation requires a command, encouragement, or request of another to commit a crime; conspiracy requires an agreement to commit a specific crime and an overt act in furtherance of the agreement. (96 Ill. 2d 204, 209, 449 N.E.2d 1326.) In a conspiracy, one person may tell another he is going to commit a crime and the other person may volunteer to join in its commission without being commanded, encouraged or requested to do so. (96 Ill. 2d 204, 209-10, 449 N.E.2d 1326.) Neither solicitation nor conspiracy is a lesser included offense of the other. People v. Latham (1979), 73 Ill. App. 3d 995, 997, 392 N.E.2d 43.

The Illinois conspiracy statute encompasses the bilateral theory of conspiracy requiring the actual agreement of at least two participants. (People v. Foster (1983), 99 Ill. 2d 48, 457 N.E.2d 405.) The solicitation statute embraces virtually every situation in which one could be convicted of conspiracy under the unilateral theory. (99 Ill. 2d 48, 53, 457 N.E.2d 405.) It can thus be seen that the two inchoate offenses address distinct conduct.

Examination of the statutory provisions for penalties for solicitation and conspiracy since enactment of the Criminal Code of 1961 reveals the following. Upon adoption of the Criminal Code in 1961, the penalty section for solicitation provided that no fine or imprisonment could exceed the maximum provided for the offense solicited, except that no penalty could exceed imprisonment for one year. (Ill. Rev. Stat. 1961, ch. 38, par. 8 — 1(b).) The applicable penalty for conspiracy in the Criminal Code of 1961 provided, in pertinent part, that no fine or imprisonment could exceed the maximum provided for the offense which is the object of the conspiracy, except that no penalty for conspiracy to commit murder shall exceed imprisonment for 20 years. (Ill. Rev. Stat. 1961, ch. 38, par. 8 — 2(c).) In 1967, the penalty provision for solicitation was amended to delete the one-year maximum limitation and substitute the language, still present, which provides that “the penalty shall not exceed the corresponding limit provided by subparagraph (c) of Section 8 — 4 of this Act, as heretofore and hereafter amended.” (Ill. Rev. Stat. 1967, ch. 38, par. 8 — 1(b).) The maximum penalty for attempt to commit murder in 1967 was imprisonment not to exceed 20 years. It can be seen that while in 1961 solicitation carried a less severe sentence than conspiracy, in 1967 the penalty for solicitation became linked with that for attempt, and in 1967 the maximum penalty for both solicitation to commit murder and conspiracy to commit murder became the same.

Following the adoption of the Unified Code of Corrections in July 1972 and corresponding amendments to the penalty provisions of the Criminal Code, the attempt penalty provisions were amended to provide, inter alia, that the maximum penalty for attempt to commit murder shall not exceed a Class 1 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 8 — 4(c).) The conspiracy penalty provisions were amended to provide, inter alia, that the maximum penalty for conspiracy to commit murder shall not exceed a Class 2 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 8 — 2(c).) Public Act 80 — 1099, effective February 1, 1978, substituted “Class X” for “Class 1” in the attempt-to-commit murder provision. Thus, as it stands now, solicitation to commit murder, which by statutory references corresponds to the penalty for attempted murder, has a maximum sentence not to exceed the sentence for a Class X felony, 30 years, and conspiracy to commit murder has a maximum penalty not in excess of a Class 2 felony, 7 years.

The committee comments to the Criminal Code of 1961 for the inchoate offenses of solicitation and conspiracy do not disclose any indication of which offense is more serious, nor do they comment on the difference in penalties — the penalty for conspiracy to commit murder being set higher than that for solicitation to commit murder at the time of adoption of the Code. Also, we have been unable to find any legislative history which might reveal any floor debate of legislative intent when the maximum penalties for solicitation were made to correspond to that of attempt in 1967 or when the maximum penalty for solicitation to commit murder became higher in 1973, and again in 1978, than the maximum penalty for conspiracy to commit murder.

It is a settled rule of law that the legislature has the authority to set the nature and extent of penalties. (People ex rel. Carey v. Bentivenga (1981), 83 Ill. 2d 537, 542, 416 N.E.2d 259.) Courts will not interfere with such legislation unless the challenged penalty is clearly in excess of the very broad and general constitutional limitations applicable. (83 Ill. 2d 537, 542, 416 N.E.2d 259.) The legislature’s power to fix penalties is, however, subject to the constitutional proscription found in section 2 of article I of the Illinois Constitution, which prohibits the deprivation of liberty without due process of law. (People v. Bradley (1980), 79 Ill. 2d 410, 417, 403 N.E.2d 1029.) As our supreme court stated in Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 128 N.E.2d 691,

“We have consistently stated that the standard of a proper exercise of the police power is whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare. Vissering Mercantile Co. v. Annunzio, 1 Ill. 2d 108; Stewart v. Brady, 300 Ill. 425; City of Belleville v. St. Clair County Turnpike Co. 234 Ill. 428.” (6 Ill. 2d 152, 159, 128 N.E.2d 691.)

The test focuses on the purposes and objectives of the enactments in question. People v. Bradley (1980), 79 Ill. 2d 410, 417, 403 N.E.2d 1029.

Where the legislature clearly intends to punish one offense more severely than another, the constitutional guarantee of due process is violated if the penalty prescribed for the more serious offense is not as great or greater than the penalty prescribed for a less serious offense. In such circumstances, the enactment is not reasonably designed to remedy the evil which the legislature determined to be a greater threat to the public. People v. Wagner (1982), 89 Ill. 2d 308, 312-13, 433 N.E.2d 267; People v. Bradley (1980), 79 Ill. 2d 410, 417-19, 403 N.E.2d 1029; cf. People v. Wisslead (1983), 94 Ill. 2d 190, 196, 446 N.E.2d 512 (unconstitutionally disproportionate penalties).

Unlike the clear legislative purpose and objective found to be present in People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029 (intent that those who traffic in drugs should be subject to more severe penalty than those who possess them), defendant has not cited nor have we found any express indication by the Illinois legislature that either solicitation or conspiracy is a greater threat to the public than the other offense. What is present, however, is the legislative prescription of penalties for both offenses that provides for a more severe penalty for solicitation to commit murder than for conspiracy to commit murder. As stated above, under the State’s police power the legislature has wide discretion to prescribe penalties for defined offenses.

In an effort to determine whether the solicitation statute is reasonably designed to remedy the evil which the legislature has determined to be a threat to the public health, safety, and general welfare, we have also consulted text material on the subject. According to M. Bassiouni:

“Authorities are not always in agreement as to whether solicitation in and of itself presents a genuine social danger. On the one hand, the solicitor can be thought to show a reluctance to do the crime himself and has the benefit of an independent agent between himself and the crime and, therefore, is of small import as a social menace. Others indicate that the true significance of solicitation is a more sophisticated and well thought out scheme to effectuate a crime and hence more dangerous to society because the actor is shielded by his hireling.” (M. Bassiouni, Substantive Criminal Law 223 (1978).)

It has also been stated that solicitation is, if anything, more dangerous than a direct attempt because it may give rise to cooperation among criminals, which is a special hazard. The solicitor working his way through one or more agents manifests an approach to crime more intelligent and masterful than the efforts of his hireling. W. La-Fave & A. Scott, Criminal Law sec. 58, at 416 (1972).

The Model Penal Code grades for sentencing purposes the offenses of attempt, solicitation, and conspiracy as the same. (Model Penal Code sec. 5.05 (1962).) The comments to the Model Penal Code indicate that prevailing law reflects no general or coherent theory in determining the sanctions that are authorized upon conviction of attempt, solicitation, or conspiracy. Model Penal Code sec. 5.05, comments, at 174-75 (Tent. Draft No. 10, 1960).

From these sources and considering the Illinois legislative scheme of penalties prescribed for solicitation and conspiracy, we are not persuaded by defendant’s argument that conspiracy presents a more serious threat to the public than solicitation. The due process provision of the Illinois Constitution is not violated where the statute is reasonably designed to remedy the evil which the legislature determined to be a threat to the public health, safety, and general welfare.

Although defendant argues that a greater threat to the public is posed in a conspiracy where two or more persons are involved and that there is a greater likelihood the offense will be committed, the offense of solicitation addresses at least an equally dangerous evil. The person who solicits another by command, encouragement, or request to commit murder generally represents a more sophisticated and planned criminal intent by an actor who attempts to shield himself through his hireling. Imposition of a severe penalty for criminal solicitation may be an important means by which the leadership of a criminal movement may be suppressed. The offense of conspiracy is aimed at group criminality, an evil to the public distinct from solicitation. Although conspiracy requires an act in furtherance of the agreement to the commission of the offense, which is not required in solicitation, the solicitation to commit a crime itself is the serious act sought to be prevented by the legislation.

In conclusion, we do not find that the legislative scheme of penalties for solicitation and conspiracy is violative of the due process clause of the Federal or Illinois constitutions. Although defendant also stated in her brief that section 11 of article 1 of the Illinois Constitution providing that “[a]ll penalties shall be determined both according to the seriousness of the offense and the objective of restoring the offender to useful citizenship” is violated under this legislation, counsel for defendant agreed at oral argument that this constitutional provision is only supportive of the due process provision, and defendant is not raising this as a separate argument. In any event, we conclude that both offenses are serious and the legislature, within its broad authority to set penalties, has not violated the Illinois Constitution.

Defendant’s only other contention raised on this appeal is that her 25-year sentence of imprisonment is excessive. She contends that in the light of her youth, age 24, her lack of any prior adult or juvenile criminal record, her history of alcohol abuse and psychiatric problems, her potential for rehabilitation as evinced by her efforts towards counselling while incarcerated, and the general circumstances of the offense itself, she should not have received nearly the maximum term of imprisonment, and this court should reduce her sentence.

We briefly set forth the relevant facts adduced at trial. Sam Korcovelos, defendant’s hair stylist, testified that at one of her appointments defendant told him she did not want her hair cut but wished to discuss a problem. She told Korcovelos that she wanted to get rid of her husband, and that she did not want a divorce, she wanted him killed. She left a telephone number and said he could call her if he located somebody to do it. Korcovelos said defendant may have been drinking, but he could not smell anything on her breath. Defendant came in the following week and wanted to know if Korcovelos had located someone. Korcovelos had previously called the police, and acting under their instructions, he told her yes, he had, and she would be contacted. On this second occasion, defendant showed Korcovelos a notebook with instructions on what she needed to do before and after the killing.

Donna Clouse, a friend of defendant, testified that defendant called her to tell her she was making arrangements to have her husband murdered. During her several conversations with defendant regarding the murder plan, Clouse believed defendant was not drinking. Defendant did ask Clouse to come over to her house on Sunday and be her alibi.

Paul Olson, special agent for the Illinois Department of Law Enforcement, testified that he got defendant’s telephone number from Korcovelos and called her, introducing himself as Paul, Sam’s friend. In a subsequent call, he told defendant he needed an itinerary of her husband’s activities, photographs of her husband, and $500 for a down payment. Two days later, he and other agents and police officers went to the Travelodge. The others were in an adjoining room monitoring a recording of the transaction. Olson called defendant from the motel. Defendant told him she had $400 but would have to cash a check for another $100. Olson told her that $400 would be sufficient, and about 10 minutes later defendant arrived at the motel.

The jury viewed the videotape of the transaction. A review of the videotape discloses that defendant presented Olson with $400, her husband’s itinerary, and photographs, explaining that although he had a beard in the pictures, he had recently shaved it off, but there was no way Olson could miss him because he would be wearing his white uniform. Defendant stated that she wanted it done on Sunday at 12 o’clock, when her husband got off duty, because it was late at night and could be made to look like a mugging; that she wanted him killed; that she had no regrets, no conscience; that she sounded cold-hearted; that Olson could just shoot him; that she had worked out every detail; that she wanted the insurance money and she wanted him out of her life; that there was only $30,000 in insurance money, so it was not really the money, she wanted to be free; that he was going to take her little boy and could, because of her prior stays in mental institutions, so there was no way for divorce; that she hated him and wanted him dead; that she was totally selfish; that she realized that if he survived, she would go to prison for life; that she was very determined and would not change her mind; that she had all the money spent; that she had no drug or alcohol problems and no mental problems except being selfish; that she was unhappy and this would make her happy; that she was not a remorseful person; that she was an excellent actress and an excellent liar; that she was really excited, not scared, and could not believe it was finally going to happen; and that he was a bore and she hated him.

After the videotape had been shown, Olson further stated that after she exited the motel room, defendant was arrested. In a blue notebook found in defendant’s purse were lists of things to purchase and things to do after her husband was dead.

Defendant testified that she had been drinking prior to visiting her hairdresser, was very upset, and said she needed to get rid of her husband; that he told her she should come back and she did, again after she had been drinking; that he said he had contacted this person who was a professional Mafia hit man and that she’d better be deadly serious or there’d be trouble for her; that during those conversations, she never intended to go through with the plan; that the videotape was an accurate description of the meeting but that she didn’t intend to go through with the plan; that after hearing a Chicago Mafia hit man had been contacted, she was scared for her own life and her son’s life and afraid the man would think she was trying to set him up or get him arrested; that she intended to stop it on Sunday at the last minute; and that the list of things to do was prepared in case something was to happen to her husband and she did not anticipate something happening to her husband.

At the sentencing hearing, neither side presented evidence, although a pre sentence report, a letter from Dr. Leo G. Goldman, a letter from a clinical social worker at the Lake County jail, a hospital report, and letters from defendant and her parents were submitted. The trial judge stated that he had read the presentence report and all accompanying letters; that in considering the statutory factors in mitigation, there was no history of prior criminal activity and he would like to find no threat of serious physical harm and an unlikelihood to recur, but he was not sure that under the circumstances those findings would be appropriate; that he had seen the videotape, and defendant had the opportunity to back out; that there was no question that defendant intended her husband to be dead; that imprisonment was necessary for the protection of the public; and that even if probation were allowed it would deprecate the seriousness of the offense. Defendant was then sentenced to a 25-year term of imprisonment.

Our supreme court has repeatedly emphasized the undesirability of a reviewing court’s simply substituting its judgment or preference as to punishment for that of the sentencing court. The trial judge is ordinarily best situated to tailor a sentence or other disposition to the needs of the case. He balances the appropriate factors in imposing sentence, and the exercise of the discretion should not be altered upon review absent an abuse of that discretion. People v. Hicks (1984), 101 Ill. 2d 366, 375, 462 N.E.2d 473.

The record discloses that the trial court examined the statutory factors in aggravation and mitigation, specifically stating that defendant had no prior history of criminal activity, that defendant’s conduct threatened serious physical harm, that it could not say that it was unlikely to recur, and that sentence was necessary to deter others from committing the same crime. Apparently concerning the sentencing factor of excessive hardship on her dependent, the trial judge said that defendant wanted him to be concerned about her son’s losing a mother but that defendant was not concerned about her son’s losing a father. Defendant stood to collect $30,000 in insurance proceeds and had already decided how those proceeds would be spent. She had meticulously thought out what needed to be done before and after her husband’s death.

While the letters, psychological reports, absence of prior criminal activity, youth and history of alcohol abuse may have been mitigating factors, there is no indication in the record that the trial court failed to consider them. Where mitigation evidence is before the court, it is presumed that the sentencing judge considered the evidence, absent some indication, other than the sentence imposed, to the contrary. (People v. Bergman (1984), 121 Ill. App. 3d 100, 109, 458 N.E.2d 1370.) Furthermore, the factors in mitigation must be offset by defendant’s own statements on the videotape, where, among other things, she admitted to being an excellent liar and actress, where she denied that she would ever have any remorse, and where she stated that she had no regrets, no conscience. Although defendant contends the severe sentence indicates the court failed to give adequate consideration to her rehabilitation potential, we are convinced that on this record the trial judge incorporated all the information provided at the sentencing hearing, which included her rehabilitative potential, in his sentencing decision. See People v. Bergman (1984), 121 Ill. App. 3d 100, 109-10, 458 N.E.2d 1370.

It is apparent from the evidence at trial and the trial judge’s remarks at sentencing that the defendant had carefully calculated to have her husband killed and took the necessary steps over a period of time to solicit someone to commit murder. She also made plans for an alibi. The videotape of her arrangements for the murder of her husband graphically and vividly depicted her intent and attitude towards her crime and the consequences of it. Although the 25-year sentence was near the maximum penalty for this offense, under all the circumstances shown by this record we find no abuse of the trial judge’s sentencing discretion.

Affirmed.

LINDBERG and HOPF, JJ., concur.