author: PRESIDING JUSTICE SULLIVAN

text:
      In re MARRIAGE OF JOAN A. LEVY, Petitioner-Appellee, and RICHARD F. LEVY, Respondent-Appellant.
    First District (5th Division)
    No. 81-1838
    Opinion filed March 26, 1982.

      James T. Friedman, of Schiff, Hardin & Waite, Stephen Novack, Beverly Susler Parkhurst, and Richard F. Levy, pro se, all of Levy and Erens, both of Chicago, for appellant.
    Block, Levy & Becker and Kirsh & Berman, both of Chicago, for appellee.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Respondent appeals from two orders entered pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA) in one of which the court declined to exercise jurisdiction over the subject matter of custody of the parties’ minor child, vacated and dissolved a temporary injunction enjoining petitioner from proceeding in New York, denied injunctive relief, and struck other portions of respondent’s motion for rehearing and his supplemental petition in regard to the minor’s visitation.

The trial court, in a judgment of dissolution of marriage entered in January 1980, provided for joint custody of a 10-year-old minor child (minor) but granted physical custody to petitioner pursuant to a marital settlement agreement approved and adopted by the court. The agreement also provided that there should be reasonable visitation rights for respondent; that petitioner would not change the minor’s residence from the Chicago area without the prior consent of respondent or order of the court; and that, if asked for a permanent change in the minor’s residence, respondent’s response would be based only on his views as to the minor’s best interests.

In February 1980, petitioner married Ronald Friedland, president of an organization headquartered in New York and India called Sidia Yoga Dham Ashram Foundation whose head is an Indian guru known as “Baba.” Although it is undisputed that in 1979 Friedland established a residence in New York, he testified at hearings before the trial court that due to health problems he could not spend winters in a cold climate and that his position as president of the foundation had a bearing on where he lives throughout the year.

After her remarriage, petitioner resided in Chicago with the minor until she moved to New York in April 1980. The minor remained with respondent in Chicago until he completed school in June 1980, when he and his belongings were moved to New York. Petitioner testified" that in December 1979 or January 1980 she told respondent that she would be moving to New York in the spring; that respondent suggested that the minor remain in Chicago to finish the school year; and that, when her remarriage was discussed, he made no objection to her moving to New York with the minor. Respondent testified that petitioner told him at that time she did not believe she would marry Friedland or leave Chicago; that the minor would continue to reside in Chicago and stay in the same school; that he never assented to moving the minor’s residency to New York; and that in April 1980 he learned from petitioner of her intention to go to New York to be with Friedland and her guru until the latter’s next stop on his world tour.

During the summer of 1980, the minor spent between 5 and 7 weeks in New York and the remainder in Chicago with respondent. From September 1980 to May 1981, petitioner, the minor, and Friedland resided in California because of the latter’s health problem and also to be near “Baba.” During that period, the minor was enrolled in a California school system.

Petitioner testified that during the summer of 1980, she had discussions with respondent concerning her intention to spend the winter in California with Friedland and the minor, but there was no understanding that the minor would return to Chicago in the fall. Respondent testified that during their discussions, he reminded her of her promise that she would not remove the minor from Chicago and that he did not commence court action before the California move because “he couldn’t bear to inflict the pain on [the minor] when he asked him not to.” He also stated that while petitioner was in California she told him that “Baba” was going to India and she planned to follow him there with the minor, and when he (respondent) objected she agreed that while she was in India he could return to school in Chicago; that the minor came to Chicago in April 1981 and was interviewed at the school for readmission; and that subsequently, during a telephone conversation, the minor said he would be leaving his California school before the end of the term to be in New York for “Baba’s” birthday.

Petitioner returned to New York with the minor and two weeks later petitioned there to modify the Illinois separation agreement for permission to remove the minor to India and to reside with the minor in New York and other parts of the United States and/or the world, with reasonable rights of visitation and temporary periods of custody in Chicago.

On June 8, 1981, respondent filed a petition here requesting, in pertinent part, an injunction to prevent petitioner from continuing the action in New York; a finding that New York is an inappropriate forum; a modification of the original judgment to change the minor’s resident to respondent’s home; and an order requiring petitioner to show cause why she should not be held in contempt for disregarding orders of the Illinois court. After petitioner moved to strike and dismiss, the court temporarily enjoined petitioner from proceeding in the New York action.

In a hearing on respondent’s petition, the court identified the issues to be whether (a) it should exercise subject matter jurisdiction over a modification of the original judgment and (b) it should issue an injunction restraining petitioner from continuing her action in New York. The court then found that Illinois was not the home State of the minor under the UCCJA; that the minor no longer had significant connections with Illinois — not having been a resident for over one year; and that substantial evidence regarding the minor’s well-being is available in another State. Based upon those findings, it entered an order declining to exercise jurisdiction over the subject matter of custody, vacating the temporary injunction, denying further injunctive relief, and striking portions of respondent’s petition to custody and injunctive relief. Respondent’s motion for rehearing and a supplemental petition to permit visitation were denied on July 27.

Respondent appealed the July 20 and July 27 orders under Supreme Court Rule 304(a) and (b) and, subsequently, filed an amended notice of interlocutory appeal under Supreme Court Rule 307.

Opinion

It is essentially the contention of respondent that the court erred in its application of the provisions of the UCCJA.

We first consider the question of our jurisdiction to consider this appeal. The record shows that on July 27,1981, petitioner filed a notice of appeal from the July 20 and July 27 orders of the trial court under Supreme Court Rule 304 (Ill. Rev. Stat. 1979, ch. 110A, par. 304). An amended notice of interlocutory appeal subsequently was filed on August 21 under Supreme Court Rule 307 (Ill. Rev. Stat. 1979, ch. 110A, par. 307) from the same orders. Respondent argues that this appeal is before us under Rule 307 and thus, that the scope of our review is limited to a determination of whether it was within the discretion of the trial court to deny injunctive relief, and that a discussion of the trial court’s jurisdictional analysis relating to the UCCJA is proper only under Rule 304. We are of the opinion that the appeal is before us under Rule 307, which provides for an appeal as of right from an order refusing to grant an injunction; but that, in any event, the issue is the same under either rule as, in determining whether the trial court properly refused to enjoin petitioner from proceeding in the New York courts, we must necessarily determine whether the trial court here had jurisdiction under the UCCJA.

The statutory authority relevant to the court’s determination of its jurisdiction over this custody matter is contained within the provisions of UCCJA as adopted in Illinois (Ill. Rev. Stat. 1979, ch. 40, par. 2101 et seq.), the stated principal purposes of which are to avoid conflict with courts of other States, to protect the best interests of the child, and to discourage forum shopping (Ill. Rev. Stat. 1979, ch. 40, par. 2102).

Section 4 of the UCCJA (Ill. Rev. Stat. 1979, ch. 40, par. 2104) provides, in relevant part:

“(a) The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:
1. this State
(i) is the home state of the child at the time of commencement of the proceeding, or
(ii) had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or
2. it is in the best interest of the child that a court of this State assume jurisdiction because
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and
(ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or

Section 7 (Ill. Rev. Stat. 1979, ch. 40, par. 2107) provides:

“(a) A court of this State shall not exercise its jurisdiction under this Act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Act, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons.

Section 8 (Ill. Rev. Stat. 1979, ch. 40, par. 2108) provides, in part:

“(a) A court which has jurisdiction under this Act to make an initial or modificiation judgment may decline to exercise its jurisdiction any time before making a judgment if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
(b) A finding of inconvenient forum may be made upon the court’s own motion or upon motion of a party or a guardian ad litem or other representative of the child.
(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
1. if another state is or recently was the child’s home state;
2. if another state has a closer connection with the child and his family or with the child and one or more of the contestants;
3. if substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;

We initially note that although the UCCJA appears to confer subject matter jurisdiction of child custody determinations, the term “jurisdiction” is not used in its traditional sense but as a limitation on the existing jurisdiction conferred on the courts by the Illinois Constitution (Ill. Const. 1970, art. VI, §9). Siegel v. Siegel (1981), 84 Ill. 2d 212, 417 N.E.2d 1312.

Subsequent to the trial court’s decision and effective August 14,1981, section 4 of the UCCJA was amended to include a provision that “a court, once having obtained jurisdiction over a child, shall retain such jurisdiction unless it concedes jurisdiction to a foreign state or none of the parties to the action, including the child, remain in Illinois.” Act of Sept. 11,1979, Pub. Act 82-190 (to be codified in Ill. Rev. Stat., ch. 40, par. 2104(b)).

Generally, statutory amendments are presumed to operate prospectively unless the legislature clearly intended otherwise; but, where an amendment relates only to remedies or procedure, it is given retrospective application. (People v. Theo (1971), 133 Ill. App. 2d 684, 273 N.E.2d 498.) However, an exception to this rule exists, and an amendment will not be construed retroactively where a procedural rule destroys a substantive right. Hogan v. Bleeker (1963), 29 Ill. 2d 181, 193 N.E.2d 844.

Since the amendment here is clearly a rule of procedure which does not affect the substantive rights of the parties, it should be given retrospective application, and we will review this action in light of the amendment.

In this regard, there is no question that the trial court initially had jurisdiction over the custody of the minor in the instant case and, under this amendment, as respondent remains in Illinois, jurisdiction should be retained unless it is conceded to New York under the UCCJA. The trial court here determined that it did not have jurisdiction under section 4 and thus made no concession thereof under section 8, and accordingly, we reverse and remand to determine whether it should concede its jurisdiction to New York.

Moreover, we are of the belief that even under the provisions of the UCCJA prior to the effective date of the amendment, the record does not support the trial court’s findings that the minor no longer had significant connection with the State of Illinois and that substantial evidence regarding the child’s present and future well-being was available in another State.

Because the UCCJA was only recently adopted in Illinois and the case law applying its provisions is not well established in this State, we look to the decisions of other jurisdictions and to the Commissioners’ Notes to the UCCJA for guidance. It appears therefrom that the UCCJA involves a process in which the court must first resolve whether it has jurisdiction under section 4 of the UCCJA and, after such a finding, it must determine under sections 7 and 8 whether it should decline to exercise jurisdiction. See Vanneck v. Vanneck (1980), 49 N.Y.2d 602, 427 N.Y.S.2d 735, 404 N.E.2d 1278; Smith v. Smith (1979), 40 Ore. App. 257, 594 P.2d 1292; Etter v. Etter (1979), 43 Md. App. 395, 405 A.2d 760; Campbell v. Campbell (Ind. App. 1979), 388 N.E.2d 607; Carson v. Carson (1977), 29 Ore. App. 861, 565 P.2d 763, aff'd (1978), 282 Ore. 469, 579 P.2d 846; Priscilla S. v. Albert B. (Fam. Ct. 1980), 102 Misc. 2d 650, 424 N.Y.S.2d 613.

The first inquiry as to jurisdiction involves an analysis of the facts under section 4 of the UCCJA, relevant of which here are paragraphs one and two concerning the home State of the minor and the minor’s best interests.

Paragraph one provides that jurisdiction exists if the State is the home State of the child at the time of the commencement of the proceeding or if the State had been the child’s home State within six months before the proceeding and a parent continues to live in this State. “Home state” is defined in the UCCJA as “the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least 6 consecutive months, ” e ° however, periods of temporary absence of any of the named persons are counted as part of the 6-month or other period.” Ill. Rev. Stat. 1979, ch. 40, par. 2103.04.

Here, we believe the trial court properly found that Illinois does not qualify as the home State. The minor spent approximately one-half of the summer of 1980 in Illinois and one-half of the summer in New York. He then went to California with his mother and Friedland and remained there, except for brief periods, until returning to New York in the spring of 1981. The minor clearly had not lived in Illinois for a period of six consecutive months immediately preceding commencement of the action in June 1981 nor had Illinois been the home State within six months before commencement of the proceeding.

Since Illinois does not have jurisdiction under paragraph one, we next consider whether under paragraph two it is in the best interest of the minor that Illinois assume jurisdiction. This determination involves questions as to whether the minor and respondent have a significant connection with Illinois and as to whether there is substantial evidence in Illinois concerning the child’s present and future care, protection, training, and personal relationships.

The Commissioners’ Note to this subsection indicates that the purpose of paragraph two “is to limit jurisdiction rather than to proliferate it” and “[t]he interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state.” (9 Unif. Laws Ann. 124 (1979).) In Carson v. Carson (1977), 29 Ore. App. 861, 565 P.2d 763, aff'd (1978), 282 Ore. 469, 579 P.2d 846, it was explained that in using the terms “optimum” and “maximum” the commissioners intended only a high degree of connection and access to evidence and that they were obviously advocating that the term “substantial evidence” in the statute was not intended to be used as a substitute for “some evidence” as may be used in other legal contexts.

We believe that both of the paragraph two criteria are met in this case. The record shows that the minor spent his entire life and had all of his schooling in Illinois prior to the divorce proceeding, and that most of his school records are in Illinois as are his brother, sister, grandmother, and an aunt and uncle who lived with the family for a number of years. Further, not only are potential witnesses concerning the minor’s education, personal relationships, and well-being in Illinois, but respondent also lives and works in this State and has done so since the minor’s birth.

We note that in Siegel v. Siegel (1981), 84 Ill. 2d 212, 417 N.E.2d 1312, where the children involved in a custody dispute were born in Illinois, lived in Illinois for seven years, and had a father and grandfather who resided in Illinois, the court found that while the children once had a significant connection in Illinois, at the time of the action no such significant connection existed. The Siegel court went on to find that the UCCJA emphasizes available evidence as a factor in whether the court should act and that such evidence in California included the fact that the children had a mother, aunt, and uncle there and, because they had lived there for three years prior to the proceeding, there was evidence of their education, health, personal relationships, and homelife. The instant case is unlike Siegel in that the available evidence of the minor’s education and personal relationships are also in Illinois and because he had resided in New York for, at most, only a total of nine weeks in the year preceding this action. See also In re Marriage of Wass (1981), 94 Ill. App. 3d 436, 419 N.E.2d 32.

Furthermore, we note that the trial court’s finding that the minor no longer has significant connections with Illinois was based upon the fact that he had not been a resident of Illinois for over one year and that this is inconsistent with section 4(c) of the UCCJA, which specifically provides that although physical presence of a child in the State is desirable, it is not a prerequisite for jurisdiction. Ill. Rev. Stat. 1979, ch. 40, par. 2104(c).

Having ascertained that there is jurisdiction, the UCCJA requires a consideration of whether under the circumstances of the case jurisdiction should be declined. We need not be concerned here with section 7, which requires that a court decline to exercise jurisdiction if at the time of filing a petition a child custody proceeding was pending in another State exercising jurisdiction under the UCCJA, unless the proceeding is stayed by the court of the other State — as we are informed here that the New York court has stayed its proceeding.

However, under section 8 of the UCCJA, a court may decline to exercise its jurisdiction if it finds that it is an inconvenient forum. The Commissioners’ Note indicates that the purpose of the inconvenient forum section is to “encourage judicial restraint in exercising jurisdiction whenever another state appears to be in a better position to determine custody of a child. It serves as a second check on jurisdiction” once the tests of.section 4 have been met. 9 Unif. Laws Ann. 139 (1979).

The statute sets forth five factors which may be used by the court in determining whether it is an inconvenient forum. They involve not only a consideration of connections and evidence concerning the child in the second State, but also whether the exercise of jurisdiction by the courts of Illinois would contravene the purposes of the UCCJA.

On the basis of the record here, it appears that the trial court did not reach a consideration whether, under section 8, it was an inconvenient forum. It found only that it did not have jurisdiction under section 4.

Thus, whether the action is decided under the provisions of the UCCJA prior to or after the effective date of the amendment, it is our belief that the trial court had jurisdiction and that there remains the requirement under section 8 of a determination as to whether it should decline to exercise its jurisdiction. A finding as to whether another State is a more appropriate forum requires information concerning the child’s contacts in New York — evidence which does not appear to have been presented before the trial court (see Dowhanik v. Dowhanik (1979), 43 Ore. App. 379, 602 P.2d 1127; Smith v. Smith (1979), 40 Ore. App. 257, 594 P.2d 1292), and this matter will be remanded for that determination.

For the reasons stated, the orders appealed from are reversed, and this matter is remanded for further proceedings consistent with the content of this opinion.

Reversed and remanded.

LORENZ and WILSON, JJ., concur.

       Although Wass and Siegel were decided under section 601 of the Illinois Marriage and Dissolution Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.), both cases indicate that due to virtually identical provisions under section 601 and section 4 of the UCCJA, their decisions under either statute would have been the same.


source: Caselaw Access Project

author: PRESIDING JUSTICE CAMPBELL

license: Public Domain

text:
    LEE T. OLSEN et al., Plaintiffs-Appellants, v. FINANCIAL FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellee.
    First District (1st Division)
    No. 80-930
    Opinion filed March 29, 1982.
    Drucker and Duax, Ltd., of Chicago, for appellants.
    Schumacher, Jones, Vallely, Kelly & Olson, of Chicago, for appellee.
    Office of the General Counsel, Federal Home Loan Bank Board, of Washington, D. C. (Milan C. Miskovsky, Ralph W. Christy, Harvey Simon, and Paul W. Grace, of counsel), for amicus curiae Federal Home Loan Bank Board.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs Lee and Nancy Olsen bring the instant appeal from an order of the circuit court of Cook County dismissing their complaint brought under the Illinois Mortgage Escrow Account Act (Ill. Rev. Stat. 1975, ch. 95, par. 101 et seq.) for injunctive relief and money damages for the nonpayment of interest on sums placed with defendant, Financial Federal Savings and Loan (hereinafter Financial). The action was filed by plaintiffs personally and as representatives of the class of persons who obtained mortgages with defendant for the purchase of owner-occupied single-family residences after January 1, 1976, the effective date of the Illinois Mortgage Escrow Account Act, and were required to secure the payment of real estate taxes on their residences. The trial court dismissed the complaint. The pivotal issue raised in this appeal is whether a federally chartered savings and loan association may be required to comply with the provisions of a State statute concerning escrow accounts.

For the reasons stated herein, we affirm.

In their complaint, plaintiffs allege that in November 1978, they applied to Financial for a first mortgage loan in order to purchase a single-family residence which would serve as their principal residence. Pursuant to their application, Financial lent plaintiffs $94,880 for the purchase of the residence and a promissory note, mortgage and assignment of rents were executed to secure the loan. At the real estate closing, Financial required plaintiffs to deposit the sum of $1,661.15 into an escrow account to secure the payment of the general real estate taxes. Plaintiffs were also required to make monthly payments of one-twelth of the estimated general real estate taxes which would be deposited by Financial into the escrow account. Financial denied plaintiffs’ request to place the money in the escrow account into an interest-bearing savings account. The complaint also alleges that Financial did not make the requisite disclosures required by the Mortgage Escrow Account Act at the plaintiffs’ closing.

As to the alleged “class,” it was contended that Financial has failed to provide notices to any individuals who, like plaintiffs, obtained loans from it for the purchase of single-family owner occupied residences secured by first mortgages as required by the Mortgage Escrow Account Act. Nor did Financial allow these individuals to establish interest bearing accounts, in lieu of escrow accounts, as provided under the Act to secure the payment of real estate taxes on the mortgaged properties.

Plaintiffs’ complaint sought inter alia an injunction requiring Financial to comply with the notice provisions of the Mortgage Escrow Account Act, an accounting on all money held in escrow by defendant after January 1,1976, damages based on the amount of interest which the escrow funds could have earned calculated at the rate of interest Financial paid on its regular savings accounts during this period, and attorney fees and costs.

Financial filed a motion to dismiss plaintiffs’ complaint alleging three separate bases. It was first contended that plaintiffs’ complaint failed to sufficiently allege the grounds for a class action. It was next alleged that the provisions of the Mortgage Escrow Account Act were preempted because the defendant was subject to the provisions of the Federal Home Loan Bank Act of 1932 (12 U.S.C. §1421 et seq. (1976)) and the Homeowners Loan Act of 1933 (12 U.S.C. §1461 et seq. (1976)) (hereinafter HOLA). Financial’s final argument was that the complaint failed to sufficiently allege certain preconditions for the applicability of the Mortgage Escrow Account Act and that, therefore, the complaint failed to allege a cause of action under that Act. After extensive briefing, the trial court entered an order on March 4, 1980, dismissing the complaint upon two specific findings: (1) that the provisions of the Mortgage Escrow Account Act were not applicable to Financial by reason of the doctrine of Federal preemption as a matter of law; and (2) that the cause of action was not properly certifiable as a class action as a matter of law. It is from this order that plaintiffs now appeal.

Because we believe that the result we reach on the preemption question will control the issue of whether the cause of action was certifiable as a class, we address it first. The supremacy clause of the United States Constitution (U.S. Const., art. VI) provides:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which . shall be made, under the Authority of the United States, shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

This clause has been interpreted in a number of United States Supreme Court decisions as well as a number of Federal and State decisions. (Ridgway v. Ridgway (1981), 451 U.S. 905, 70 L. Ed. 2d 39, 102 S. Ct. 49; Ray v. Atlantic Richfield Co. (1978), 435 U.S. 151, 55 L. Ed. 2d 179, 98 S. Ct. 988; First Federal Savings & Loan Association v. Greenwald (1st Cir. 1979), 591 F.2d 417; Glen Ellyn Savings & Loan Association v. Tsoumas (1978), 71 Ill. 2d 493, 377 N.E.2d 1.) These decisions clearly establish the power of Congress to preempt any legislative field over which it has jurisdiction. (De Canas v. Bica (1976), 424 U.S. 351, 47 L. Ed. 2d 43, 96 S. Ct. 933; Campbell v. Hussey (1961), 368 U.S. 297, 7 L. Ed. 2d 299, 82 S. Ct. 327; Parker v. Brown (1942), 317 U.S. 341, 87 L. Ed. 315, 63 S. Ct. 307.) However, preemption is established only where a “clear and manifest Purpose of Congress” exists to foreclose a particular field to State legislations. (Ray v. Atlantic Richfield Co.; Jones v. Rath Packing Co. (1977), 430 U.S. 519, 51 L. Ed. 2d 604, 97 S. Ct. 1305; Rice v. Santa Fe Elevator Corp. (1947), 331 U.S. 218, 91 L. Ed. 1447, 67 S. Ct. 1146.) In Rice v. Santa Fe Elevator Corp. (1947), 331 U.S. 218, 230, 91 L. Ed. 1447, 1459, 67 S. Ct. 1146, 1152, the Supreme Court explained that congressional purpose:

“* * ° may be evidenced in several ways. The scheme of federal regulation may be so persuasive as to make reasonable the inference that Congress left no room for the States to supplement it. [Citations.] Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws of the same subject. [Citation.] Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. [Citations.]”

Where Congress has not entirely “occupied a field” to foreclose State legislation on a particular field, the supremacy clause may also preempt State regulation if the State statute is in actual conflict with Federal legislation. An actual conflict between a Federal statute and a State statute exists where compliance with both is a physical impossibility (Florida Lime & Avocado Growers, Inc. v. Paul (1963), 373 U.S. 132, 10 L. Ed. 2d 248, 83 S. Ct. 1210), or where compliance with the State statute would act as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Ray v. Atlantic Richfield Co.; Jones v. Rath Packing Co.; Hines v. Davidowitz (1941), 312 U.S. 52, 85 L. Ed. 581, 61 S. Ct. 399.

The parties to the present appeal do not refute the general principles enunciated by these decisions; rather they argue whether Congress has evidenced its intent to totally occupy the field of Federal savings and loan associations by enacting the Home Owners’ Loan Act of 1933 or in the alternative whether the provisions of the Mortgage Escrow Account Act are in actual conflict with Federal regulations. In that we conclude that certain of the provisions of the Mortgage Escrow Account Act do actually conflict with Federal legislation passed concerning this area, we find it unnecessary to determine whether Congress has totally occupied the field of Federal savings and loan association regulation so that any State legislation in this field would be deemed preempted.

Plaintiffs argue that adoption of section 545.8 — 3(c) by the Federal Homeowners Bank Board (hereinafter Board) evidenced a Congressional intent to permit States to regulate in the area of Federal savings and loan association and that there is no conflict between rules promulgated by the Board and the Mortgage Escrow Account Act.

Section 545.8 — 3(c) provides in pertinent part:

“(c) Payment of interest on escrow accounts (1) An association shall pay interest on escrow accounts maintained in connection with a loan, if:
(iii) A specific statutory provision(s) of the State in which the security property is located generally requires State-chartered savings and loan associations, mutual savings bank, and similar institutions to pay such interest.
(3) Unless obligated by contract, a Federal association shall have no obligation, other than under this paragraph (c) to pay interest on escrow accounts.” 12 C.F.R. §545.8 — 3(c).

Plaintiffs urge that the Mortgage Escrow Account Act is a State statute which requires State chartered savings and loan associations to pay interest on escrow accounts and, as such, codifies the obligation set forth in Federal Regulation 545.8 — 3(c)(iii), which explicitly allows States to regulate escrow accounts in Federal savings and loan associations. We disagree. The Mortgage Escrow Account Act does not, as appellants contend, provide for interest for escrow accounts for State-chartered savings and loan associations, mutual savings banks, and similar intitutions. The Mortgage Escrow Account Act makes no reference to interest bearing escrow accounts; its only provision as to interest-bearing accounts, section 6, provides for interest-bearing pledged savings accounts to secure the payment of anticipated taxes. (Ill. Rev. Stat. 1975, ch. 95, par. 106.) Moreover, section 6 does not require State savings and loan associations to establish interest bearing pledged savings accounts but gives the borrower the option to have such an account maintained. Accordingly, the Mortgage Escrow Account Act is not the type of specific statutory provision which is envisioned by section 545.8 — 3(c).

Moreover, this section does not suggest that a State may enact legislation requiring Federal savings and loan associations to pay interest on escrow accounts. Rather, it places an obligation on Federal savings and loan associations to pay interest on escrow accounts where a State statute requires State savings and loan associations to pay interest on escrow accounts. This obligation, “requiring Federal [savings and loan] associations, solely as a matter of Federal law, under certain circumstances and subject to certain limitations to pay interest on funds held by them in escrow accounts,” exists on the basis of section 545.8(c), as promulgated under HOLA. See Preamble to Resolution No. 75 — 415, 40 Fed. Reg. 20,942 (1975).

Nor can we accept plaintiffs’ argument that the Mortgage Escrow Account Act and Federal regulations concerning interest on escrow accounts enacted by the Board pursuant to HOLA are not in actual conflict. The Board has promulgated regulations which allow installment loans to be made under certain terms and conditions (12 C.F.R. §§545.6 — 2, 545.8 — 3.) Under section 545.6 — 2 Federal savings and loan associations may make 30-year loans not exceeding 80% of the value of the security property. That section also provides for loans exceeding 80% of the value of the security but not exceeding 90% of the value of the security if the loan contract requires payment by the borrower of one-twelfth of the estimated annual taxes and assessments on the security property to be paid monthly, in advance, to the association. Accordingly, under this regulation of the Board, a 30-year mortgage may be obtained without the requirement of an escrow account for mortgages under 80% of the value of the security property. However, loans for greater than 80% of the value of the security property may only be obtained if escrow accounts are established to protect the lender’s interest in the property.

Section 545.8 — 3(a), also promulgated by the Board, provides that the loan instruments of a Federal savings and loan association shall provide “full protection” with respect to the insurance, taxes, assessments, governmental levies, maintenance and repairs of the secured property. (12 C.F.R. §545.8 — 3(a).) Additionally, section 545.8 — 3(b) provides that an association may require all or a part of these charges to be paid in advance and deposited into an escrow account along with interest and principal payments so that the association may pay these charges when due for the protection of its interest in the security property. 12 C.F.R. §545.8 — 3(b).

Section 545.8 — 3(c) pertains specifically to payment of interest on said escrow accounts. It provides:

“(c) Payment of interest on escrow accounts.
(1) An association shall pay interest on an escrow account maintained in connection with a loan, if:
(1) The loan is on the security of a single-family dwelling occupied or to be occupied by the borrower;
(ii) The loan was made after June 15, 1975, and no bona fide loan commitment was made before that date; and
(iii) A specific statutory provision(s) of the State in which the security property is located generally requires State-chartered savings and loan associations, mutual savings banks, and similar institutions to pay such interest.
(2) The interest rate shall at least equal the rate required for such State-chartered institutions but shall not exceed the rate of the Federal association pays on regular accounts.
(3) Unless obligated by contract, a Federal association shall have no obligation, other than under this paragraph (c), to pay interest on escrow accounts.” 12 C.F.R. §545.8 — 3(c).

In contrast, the Illinois Mortgage Escrow Account Act provides, in pertinent part, that a borrower may, in lieu of establishing an escrow account, “pledge an interest bearing savings account with the mortgage lender in an amount sufficient to secure the payment of anticipated taxes.” (Ill. Rev. Stat. 1975, par. 95, par. 106.) Under the Act, a borrower may also terminate an escrow account, established incident to the original loan for the deposit of monthly advance payments for interest, taxes, principal and other charges, if the mortgage is reduced to 65% of its original amount. Ill. Rev. Stat. 1975, ch. 95, par. 105.

We believe that these provisions are, contrary to plaintiffs’ assertions, in actual conflict with the aforementioned Federal regulations concerning escrow accounts in several respects. First, if the Mortgage Escrow Account Act were applied to Federal savings and loan associations, these associations would have to allow a borrower to exercise his options under the Act to maintain separate interest bearing pledged accounts in lieu of escrow accounts. Such an obligation is in conflict with sections 545.8 — 3 and 545.6 — 2, which provide that the only federally authorized method to secure payment of taxes and assessments is the establishment of an escrow account. While appellants urge us to find that the establishment of an escrow account and the establishment of a pledged savings account is a theoretically indistinguishable act, we do not agree.

Federal regulations make distinct references to escrow accounts and pledged savings accounts evidencing the Board’s position that these accounts are viewed as totally distinct methods for securing the payments of charges incident to the mortgage. (Compare 12 C.F.R. §545.6 — 2(a) (l)-(5) and 12 C.F.R. §545.7.) Similarly, the Mortgage Escrow Account Act distinguishes and distinctly treats escrow accounts and pledged savings accounts. (Compare Ill. Rev. Stat. 1975, ch. 95, pars. 102(a) and 106.) Moreover, while plaintiffs might correctly contend that both escrow accounts and pledged savings accounts purportedly accomplish the same general goal, security of the lender’s interest in the security property and payment of all charges incident to the ownership of the property, the devices as already noted, are distinct. In an escrow account, the lender has possession of the property of the borrower to be used for a specific purpose to benefit the borrower. In contract, in a pledged savings account the borrower maintains ownership of the account.

Section 545.8 — 3 provides that Federal associations shall have “full protection” with regard to insurance, taxes and other charges and that loan instruments shall include provisions to provide such full coverage. In order to clarify what the Board envisioned by “full protection,” regulations were promulgated which set forth the requisite contract terms and conditions to be used in Federal savings and loan associations loan documents. These regulations provide for escrow accounts not pledged savings accounts. (12 C.F.R. §545.6 — 2(a)(2)(iv); 12 C.F.R. §545.8 — 3(b).) Indeed, for loans which exceed 80% of the value of the security property, regulations mandate the maintenance of escrow accounts. Enforcement of the Mortgage Escrow Account Act against Federal savings and loan associations would not afford the associations the “full protection” mandated by the regulations. Under the Act the lender would have the option of using a pledged savings account in lieu of an escrow account and of terminating an escrow account after the “mortgage is reduced to 65% of its original amount by payments of the borrower.” Ill. Rev. Stat. 1975, ch. 95, par. 105.

Indeed, as the subject of escrow accounts to secure payment of property taxes on mortgage property is specifically addressed by regulations promulgated by the Board in its exercise of its Congressional mandate to provide for the operation of Federal savings and loan associations, this area is preempted (Meyers v. Beverly Hills Federal Savings & Loan Ass’n (9th Cir. 1974), 499 F.2d 1145; Glendale Federal Savings & Loan Ass’n v. Fox (C.D. Cal. 1978), 459 F. Supp. 903; Greenwald v. First Federal Savings & Loan Association (D. Mass. 1978), 446 F. Supp. 620), and any attempt by a State to regulate which potentially conflicts with Federal legislation or regulations or with their purpose or that results in a lack of uniformity in the internal management or lending practices of a Federal savings and loan association is subordinated to Federal law. The Board, by promulgating regulations on the use of escrow accounts by Federal savings and loan associations, attempted to establish national uniform policies and standards of lending practices which it believed to be the “best practices” for local and Federal savings and loan institutions. To allow a State to thwart the intent of Congress to achieve a national policy in those areas where it has chosen to regulate would be to totally ignore the supremacy of the Federal government and would denigrate the supremacy clause.

Based on the foregoing analysis, we hold that the trial court below properly dismissed the plaintiffs’ action based on its finding that the provisions of the Rlinois Mortgage Escrow Account Act are not applicable to Federal savings and loan associations because of the constitutional doctrine of Federal preemption. In so concluding, we find it unnecessary to address the issue of whether the trial court properly refused to certify the “class” in this action. As no cause of action existed under the Illinois Mortgage Escrow Account Act, no action in any form, including a class action, could be brought.

For the foregoing reasons, the order of the circuit court of Cook County dismissing the plaintiffs’ complaint is affirmed.

Affirmed.

McGLOON and O’CONNOR, JJ„ concur.


author: JUSTICE GOLDBERG JUSTICE McGLOON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GLORIA WILLIAMS, Defendant-Appellant.
    First District (1st Division)
    No. 80-2979
    Opinion filed March 29, 1982.
    McGLOON, J., specially concurring.
    James J. Doherty, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Edward Cozzi, and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GOLDBERG

delivered the opinion of the court:

After a bench trial, Gloria Williams (defendant), was found guilty of child abduction (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 5(b)(2)) and sentenced to probation for one year. She appeals.

I

Defendant contends the proof was inadequate under the reasonable doubt standard and also failed to establish she had knowledge of the court order which she allegedly violated. Clinton Williams, the child in question, testified he was 12 years old. In January of 1980 he saw his mother at his school in Markham. He went home to Harvey with her on the bus. He did not sleep in his mother’s home, but she brought him over to sleep at the home of a neighbor.

Estella Fleming testified she was duly designated as a foster parent. Clinton Williams lived with her from about February 28, 1979, until January of 1980. The boy attended school in Markham. He did not return from school on January 11, 1980. She did not give the boy permission to leave. After he left for school on January 11,1980, she did not see him for a month.

A social worker identified a copy of an order entered by the juvenile branch of the circuit court on February 23, 1979, taking the custody of Clinton Williams from his mother. On January 11, 1980, Fleming told the witness the boy was missing and had been “kidnapped.”

The social worker also testified that on January 14, 1980, he went to the area of 70th and Clyde. He saw the defendant leave the premises at 7043-7045 Clyde and return to her own address which was 7031 Clyde. Defendant was then alone. He and his department did not at any time ever give anyone, other than Estella Fleming, custody and control of the boy.

Defendant testified in her own behalf. She stated the police searched her premises on January 11,1980, but no "one was found. She testified she last saw her son on January 7, 1980, or January 8, 1980. On January 14, 1980, she was arrested. She had never heard about the order for change of her son’s custody and never received a copy thereof. She was in juvenile court on the day in question but the judge did not say anything about the custody of the child.

Laura Bowers, a schoolmate of the boy, testified in rebuttal. On January 11, 1980, she attended school with Clinton Williams. At about 3 o’clock when school was over, she walked out of the building with Clinton some 3 feet in front of her. She saw a lady, whom she identified as the defendant, on the other side of the street. That day the police showed her a picture which was that of the same lady. She told the police that was the person who took Clinton. She recognized this lady as the one who called Clinton over to her.

In our opinion, despite the denial by defendant, the evidence proves beyond reasonable doubt and to a moral certainty that defendant not only was aware of the order for custody but deliberately sought to evade it by taking Clinton from the school and keeping him in her custody for a number of days. She concealed Clinton by taking him over to the neighbor’s house at night. The denial by defendant simply raises an issue of credibility. In our opinion, the trial judge correctly resolved the issue of credibility. His determination may not be reversed by this court. We may not substitute our judgment for that of the trial judge. People v. Powell (1978), 72 Ill. 2d 50, 65, 377 N.E.2d 803, cert. denied (1979), 440 U.S. 907, 59 L. Ed. 2d 455, 99 S. Ct. 1214.

II

Defendant urges her son Clinton, 12 years old, and Laura Bowers, 11 years old, were not competent witnesses. As regards Clinton, the trial court conducted a thorough hearing regarding his competency to testify. Both counsel supplemented the questions put by the trial court. As regards Laura Bowers, the trial judge conducted a thorough examination of the witness. Both counsel indicated they had no additional questions. The trial court found each of these witnesses competent.

As a general matter, “the degree of a child’s intelligence, and not his age, determines his competency * * (People v. Edwards (1973), 55 Ill. 2d 25, 33, 302 N.E.2d 306, cert. denied (1974), 415 U.S. 928, 39 L. Ed. 2d 486, 94 S. Ct. 1438.) This proposition has been correctly described as “axiomatic in Illinois.” (People v. Nash (1980), 90 Ill. App. 3d 612, 617, 413 N.E.2d 16, and cases there cited.) In In re Cruz (1979), 76 Ill. App. 3d 565, 568, 395 N.E.2d 388, this court, following People v. Ballinger (1967), 36 Ill. 2d 620, 622, 225 N.E.2d 10, cert. denied (1967), 388 U.S. 920, 18 L. Ed. 2d 1366, 87 S. Ct. 2141, held:

“In determining the minor’s intelligence, the judge should consider whether the minor is sufficiently mature to: (1) receive correct impressions from his senses; (2) recollect these impressions; (3) understand questions and narrate answers intelligently; and (4) appreciate the moral duty to tell the truth.”

Thus, the age of the young witness is not the governing point. The courts have held witnesses of 10 or even 8 years of age competent to testify. (See People v. Luigs (1981), 96 Ill. App. 3d 700, 706-07, 421 N.E.2d 961.) In addition, it is universally adjudged that the determination of competency by the trial judge “will not be overturned unless it appears that there was a manifest abuse of discretion.” People v. Luigs (1981), 96 Ill. App. 3d 700, 707. See also In re Cruz (1979), 76 Ill. App. 3d 565, 568.

We find no abuse of discretion as regards the competency of either of these witnesses. On the contrary, the able and thorough trial judge acted with complete legal propriety in his ruling on the competency of both witnesses. We need note only defendant’s argument that Clinton was not competent because he stated he had 17 sisters. The record shows that the witness last saw his sisters when he was about 3 years old. As the State correctly points out, this argument raises simply the point regarding the ability of a 3-year-old to recollect. We find no error in this regard.

Defendant adds criticism of the trial court in allegedly basing his finding of guilty on matters outside the record. On the issue of whether defendant had actual knowledge of the order of the juvenile court, the trial court observed that he had sat in the juvenile court, was familiar to an extent with the proceedings there and therefore was “mindful of the notice that must be given to parents before such orders are entered.”

We regard this argument as being without substance. Defendant cites and relies upon inapplicable cases such as People v. Nelson (1974), 58 Ill. 2d 61, 317 N.E.2d 31, in which the trial judge held fact-finding conferences in his chambers outside of the presence of defendant or his counsel. In the case before us the trial court made a simple statement regarding general practice with which every judge and member of the bar is familiar regarding the need for notice before an order is entered taking a child from the custody of the natural mother. In addition, as above shown, the record is strong beyond reasonable doubt in demonstrating that the defendant had full knowledge of the order removing her child from her custody. We find no merit in defendant’s contention.

Ill

As regards defendant’s claim for violation of her statutory right to speedy trial (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(a)), the pertinent statute provides:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by an examination for competency ordered pursuant to Section 104 — 2 of this Act, by a competency hearing, by an adjudication of incompetency for trial, by a continuance allowed pursuant to Section 114 — 4 of this Act after a court’s determination of the defendant’s physical incapacity for trial, or by an interlocutory appeal.”

The cases follow the direct language of the statute. (See People v. Siglar (1971), 49 Ill. 2d 491, 496, 274 N.E.2d 65.) These are the pertinent calculations:

January 14, 1980 — Defendant arrested.

January 21, 1980 to February 11, 1980 — By agreement of the parties hearing continued for psychiatric evaluation.

February 25, 1980 — Information filed. Order of court continued to March 5,1980, for fitness hearing and then continued to March 6,1980, by agreement of the parties.

March 6, 1980 — Fitness examination of defendant ordered. On motion of defendant, case continued to March 21,1980.

March 21, 1980 — Pursuant to petition alleging defendant was unfit, order of court finding defendant unfit but also there was “a substantial probability that the defendant, if provided with a course of treatment, will attain fitness in one year.”

July 15,1980 — Petition of defendant for discharge on the ground that after examination a physican has found her competent.

July 15,1980 — Defendant adjudged competent and ordered released from jurisdiction of the Department of Mental Health. Trial commenced.

The above shows a delay of seven days from January 14, 1980, to January 21, 1980. However, subsequent delays allowed on January 21, 1980, February 25, 1980, and March 6,1980, were all obtained by motion of defendant or by agreement of the parties. The statutory period was therefore tolled on all of these dates and until March 21,1980. (People v. Boyd (1980), 88 Ill. App. 3d 825, 839, 410 N.E.2d 931, cert. pending.) The remaining delay on March 21, 1980, was caused by the adjudication of incompetency of the defendant. In accordance with the language of the statute above quoted, when it appeared that defendant was restored to competency her trial was started immediately and without delay. We find no violation of defendant’s rights in this regard. The judgment is accordingly affirmed.

Judgment affirmed.

CAMPBELL, P. J., concurs.

JUSTICE McGLOON,

specially concurring:

I concur with the result reached by my colleagues, but believe that defendant’s argument based on section 104 — 23 of the Code of Criminal Procedure of 1963 should be addressed because of the uncertainty expressed by the trial court regarding the application of this and related statutes involving unfit defendants.

Defendant has argued that her right to a speedy trial was violated where the trial court failed to conduct a discharge hearing within 120 days of her arrest. She further maintained that a discharge hearing was required by section 104 — 23(a). (Ill. Rev. Stat., 1979 Supp., ch. 38, par. 104 — 23(a).) The trial court ruled that defendant was not entitled to a discharge hearing as there was a substantial probability that she would attain fitness within one year. The court based its ruling on its belief that section 104 — 16(d) (Ill. Rev. Stat., 1979 Supp., ch. 38, par. 104 — 16(d)) allowed discharge hearings only for those not likely to become fit within one year after a finding of unfitness.

Section 104 — 23 provides in part:

“Cases involving an unfit defendant who demands a discharge hearing or a defendant who cannot become fit to stand trial and for whom no special provisions or assistance can compensate for his disability and render him fit shall proceed in the following manner:
(a) At any time after a finding of unfitness to enter a plea or to stand trial, a defendant or the attorney for the defendant may move for a discharge hearing pursuant to the provisions of Section 104 — 25. The speedy trial provisions of Section 103 — 5 shall commence with the filing of a motion for a discharge hearing.
(b) If at any time the court determines that there is not a substantial probability that the defendant will become fit to stand trial or to plead within one year from the date of the original finding of unfitness, or if at the end of one year from that date the court finds the defendant still unfit and for whom no special provisions or assistance can compensate for his disabilities and render him fit, the speedy trial provisions of Section 103 — 5 shall commence to run 9 9 9

Section 103 — 5 (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5) provides for a 120-day period for those not released on bond or recognizance.

The pertinent part of section 104 — 25, referred to in 104 — 23(a), states:

“(a) As provided for in paragraph (a) of Section 104 — 23 and sub-paragraph (1) of paragraph (b) of Section 104 — 23 a hearing to determine the sufficiency of the evidence shall be held. Such hearing shall be conducted by the court without a jury. The State and the defendant may introduce evidence relevant to the question of defendant’s guilt of the crime charged.
The court may admit hearsay or affidavit evidence on secondary matters such as testimony to establish the chain of possession of physical evidence, laboratory reports, authentication of transcripts taken by official reporters, court and business records, and public documents.” Ill. Rev. Stat., 1979 Supp., ch. 38, par. 104 — 25(a).

The purpose of the discharge hearing provided in section 104 — 25 is to alleviate any unfairness in holding criminal charges against an unfit defendant without giving him the opportunity to prove his innocence. (See People v. Lang (1979), 76 Ill. 2d 311, 329-30, 391 N.E.2d 350, 357-58.) Keeping this purpose in mind and construing these sections as a whole, I would find that in the absence of any delays attributable to defendant, an unfit defendant is entitled to a discharge hearing within 120 days after a motion for said hearing is made. If sections 104 — 23 and 104-25 were construed in any other manner, their obvious intent and purpose would not be effectuated.

I would further find that section 104 — 16(d) (Ill. Rev. Stat., 1979 Supp., ch. 38, par. 104 — 16(d)) does not conflict with the above interpretation or warrant a contrary conclusion. The pertinent sentence of 104 — 16(d) provides that if there is not a substantial probability that defendant will attain fitness within one year, the court should proceed as provided in section 104 — 23. Section 104 — 23(b) provides a separate procedure to be followed in such cases. However, section 104 — 23(a) is not restricted to cases where defendant will not attain fitness within one year. The introductory language to section 104 — 23 states that any unfit defendant may request a discharge hearing.

As a point of clarification, I would add that I agree with my colleagues’ general assertion that delay caused by an adjudication of incompetency tolls the speedy trial statute (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5). However, as noted above, a discharge hearing must be timely held if a motion for the hearing is made after the adjudication of incompetency.

In the case at bar, defendant’s attorney motioned for a discharge hearing on March 21, 1980, after defendant was found unfit. Thus, the time period imposed by section 104 — 23(a) began to run. But defendant was found fit atid tried 105 days after the motion for discharge hearing was made. Thus, the rights afforded defendant under sections 104 — 23 and 104 — 25 were not substantially impaired, and the purpose of these statutes was met in substance. For this reason, I would affirm the judgment of the circuit court of Cook County.


author: JUSTICE McGLOON

text:
    AMALGAMATED FINANCIAL CORPORATION et al., Plaintiffs-Appellees, v. ATLANTIS, INC., et al., Defendants-Appellants.
    First District (1st Division)
    No. 81-234
    Opinion filed March 29, 1982.
    Hanson and Shire, of Chicago (Chris Goodman, of counsel), for appellants.
    Sloan and Connelly, of Chicago (Mark A. Moynihan, of counsel), for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Amalgamated Financial Corporation brought an action against Union Realty Mortgage Corporation for tortious interference with a contract between Amalgamated and Atlantis, Inc. The trial court entered judgment upon a jury verdict in favor of Amalgamated and against Union Realty. Union Realty now appeals.

On appeal, Union Realty argues that: (1) the jury’s finding that a contract existed between Amalgamated and Atlantis was against the manifest weight of the evidence; (2) the jury’s finding that Union Realty maliciously interfered with the alleged contract was against the manifest weight of the evidence; and (3) the trial court erred in denying its tendered instruction which would have advised the jury that interference with a contract is justified if it results from impersonal business reasons.

Atlantis, Inc. (Atlantis), was a Wisconsin corporation engaged in the business of real estate development. Amalgamated Financial Corporation (Amalgamated) was a finance broker whose principal ‘business was obtaining loan commitments from financial institutions for clients for a fee. Union Realty Mortgage Corporation (Union Realty) was a corporation engaged in the business of providing mortgage financing. Phillip Lind was the president and Carl Schaffner was the vice-president of Atlantis. Maurice Katz was an executive vice-president of Amalgamated. Martin Graff was an employee of Union Realty.

In July of 1973, Atlantis was in need of financing to build a nursing home in Merrill, Wisconsin. Atlantis’ agent Carl Schaffner contacted Maurice Katz of Amalgamated to assist Atlantis in obtaining a loan commitment for the construction project from a willing lender. Katz explained to Schaffner that in exchange for obtaining a loan commitment from a lender for the project, he would require a commission from Atlantis in the amount of 3% of the total loan if the lender charged Atlantis points for making the loan, or 5% if the lender did not charge any points.

Katz made several attempts to obtain a loan for Atlantis, but was unsuccessful until he contacted Martin Graff of Union Realty. Katz explained to Graff the nature of the construction project and the financing which would be required for such a project. He also explained to Graff the details of his commission fee agreement with Atlantis. After he studied the feasibility of Union Realty financing such a project, Graff telephoned Katz and asked him to arrange a meeting between him (Graff) and Atlantis at Union Realty’s office. Katz arranged the meeting. Union Realty’s representatives stated at that meeting that unless Atlantis agreed to certain terms, no loan commitment would be made. One of those terms required Atlantis to limit to 1% the amount of a commission fee to be paid Amalgamated. Atlantis and Union Realty entered into a loan agreement which contained the term.

Amalgamated and Katz brought an action against Union Realty and Atlantis. Prior to trial, Amalgamated and Katz took a voluntary nonsuit as to Atlantis pursuant to a covenant not to sue. The complaint against Union Realty alleged that Union Realty knowingly and without justification induced Atlantis to breach its agreement with Amalgamated.

The jury found Union Realty guilty of wrongfully inducing a breach of contract between Atlantis and Amalgamated for commission fees. A judgment was entered upon the verdict and Amalgamated was awarded damages in the amount of $19,040. Union Realty appeals.

The essential elements of the tort of interference with contractual relations are (1) the existence of a valid and enforceable contract between plaintiff and another party; (2) defendant’s knowledge of the existing contract; (3) an intentional and malicious inducement of a breach by defendant; (4) a subsequent breach by the other party to the contract; and (5) damages to plaintiff. (Mitchell v. Weiger (1980), 87 Ill. App. 3d 302, 304, 409 N.E.2d 38; Zamouski v. Gerrard (1971), 1 Ill. App. 3d 890, 897, 275 N.E.2d 429.) The first two issues raised by Union in this appeal involve the first and third elements of the tort.

First, Union argues that the jury’s finding that a contract existed between Amalgamated and Atlantis was against the manifest weight of the evidence. We disagree. The trial court record is replete with evidence supporting the existence of a valid and enforceable contract.

Katz testified that he told Atlantis’ agent Carl Schaffner that if he, Katz, obtained a loan commitment from a lender, he would charge a commission fee in the amount of 2>% of the total loan if the lender charged Atlantis points, or 5% if the lender charged Atlantis no points. He further stated that Schaffner totally agreed to the terms of the commission fee contract. Although Schaffner did not testify, Atlantis’ president Phillips Lind testified that there was a valid contract between Atlantis and Amalgamated. Additionally, Union Realty’s own witness, Martin Graff, stated at trial that he was aware of the terms of the agreement between Atlantis and Amalgamated. Since both parties to the agreement stated that there was a contract and Union Realty’s own witness admitted that there was an agreement, we cannot say that the jury’s finding was against the manifest weight of the evidence.

Second, Union Realty argues that the jury’s finding that it maliciously induced a breach of the contract between Atlantis and Amalgamated was against the manifest weight of the evidence. In its brief, Union Realty misapprehends the meaning of the term “malice” when used in the context of the tort involved herein. It is not necessary to prove that defendant acted with ill will, hostility or an intent to injure. (See Gorman Publishing Co. v. Stillman (N.D. Ill. 1980), 516 F. Supp. 98; Worrick v. Flora (1971), 133 Ill. App. 2d 755, 272 N.E.2d 708.) It is only necessary to show that the defendant acted intentionally and without just cause. (See W. P. Iverson & Co. v. Dunham Manufacturing Co. (1958), 18 Ill. App. 2d 404, 152 N.E.2d 615.) In the present case, Union Realty’s interference clearly was intentional. Martin Graff testified that he was aware of the terms of the agreement between Atlantis and Amalgamated. Nevertheless, Union placed Atlantis in such a position that it could only obtain financing if it agreed to limit the commission to be paid Amalgamated to 1%. Since the interference was clearly intentional, the only remaining question is whether there was just cause for the interference.

Union Realty contends that its inducement of the breach of contract was “justifiable and grounded on sound business judgment.” In essence, Union Realty argues that economic self-interest constitutes justification for inducing a breach of contract and is therefore a defense. The Federal District Court for the Northern District of Illinois recently addressed a similar argument.

In Gorman Publishing Co. v. Stillman (N.D. Ill. 1980), 516 F. Supp. 98, a publishing company and one of its employees, Stillman, entered into a contract not to compete. Stillman terminated his employment with the publishing company and began working with Chilton, a competitor of the publishing company, thereby violating his agreement not to compete. The publishing company sued Chilton for tortious interference with contractual relations. Chilton argued that its conduct was justified by its desire to secure the benefit of Stillman’s abilities. The court rejected Chilton’s argument, finding that “[t]o hold otherwise would amount to holding that any interference with a contractual relationship is justified so long as it is beneficial to the interfering party.” (516 F. Supp. 98, 106.) Similarly, we reject Union Realty’s assertion that since its inducement of the breach of contract was grounded on sound business judgment, it was justified. In our opinion, it was incumbent on Union Realty to show something more than its economic self-interest as justification for inducing the breach of contract between Atlantis and Amalgamated.

Finally, Union Realty argues that the trial court erred in refusing to submit to the jury a particular jury instruction. The tendered instruction read: “The jury are instructed that if you find Union Realty interfered with the contract of Atlantis and the plaintiff, Amalgamated then you must determine if such interference was justified. Interference is justified if it results from impersonal business reasons.” In light of our holding that economic self-interest alone is not a defense to interference with contractual relations, we find that it was not error for the trial court to deny Union Realty’s tendered instruction.

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

Judgment affirmed.

GOLDBERG and O’CONNOR, JJ., concur.


text:
    DONNA G. ROBERTS, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.—(RICHARD B. OGILVIE, Trustee, Defendant and Third-Party Plaintiff, v. COMMONWEALTH EDISON COMPANY et al., Third-Party Defendants.)
    First District (1st Division)
    No. 81-757
    Opinion filed March 29, 1982.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Leon Pawlykowycz, Assistant Corporation Counsel, of counsel), for appellant.
    Joseph R. Curcio, Thomas W. Stewart, and Sidney Z. Karasik, all of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Donna Roberts brought a personal injury action against the City of Chicago and the Milwaukee Railroad Company to recover for injuries she sustained when she lost control of her automobile and collided with another automobile after hitting a pothole on or near a railroad crossing. Midway through the trial, Milwaukee Railroad Company settled with Roberts and was dismissed from the suit. The trial continued with the City of Chicago as the sole defendant. The jury found for Roberts and awarded her $300,000 in damages. The City of Chicago now appeals. The issues on appeal are whether the trial court erred in: (1) not allowing the City of Chicago to file a third-party complaint against the Milwaukee Railroad; (2) in refusing to instruct the jury as to the statutory duty of railroads to maintain railroad crossings; and (3) in permitting plaintiff’s previously undisclosed witness to testify.

We reverse.

On June 14, 1974, at 8 p.m., Donna Roberts (plaintiff) was involved in an automobile accident near a railroad crossing at 6605 West Diversey in Chicago. As she approached the railroad crossing, plaintiff slowed down and applied the brakes. When plaintiff drove across the tracks, her car hit one or more potholes and bounced. The steering wheel jerked out of plaintiff’s hands and her car veered to the left and collided with another automobile.

Plaintiff brought an action against the City of Chicago (the City) and Milwaukee, St. Paul & Pacific Railroad Company (Milwaukee Railroad). In her complaint, she alleged that as a result of the City’s failure to maintain the railroad crossing, she lost control of her car and collided with another vehicle. Further, she alleged that Milwaukee Railroad was guilty of negligence in maintaining the grade crossing.

The case went to trial on January 13, 1981. Midway through trial, Milwaukee Railroad reached a settlement with plaintiff in the amount of $50,000 and was dismissed from the suit. The City asked for leave to file a third-party complaint against Milwaukee Railroad. The motion was denied. The trial continued with the City as the sole defendant.

Numerous witnesses testified on behalf of both plaintiff and the City. Their testimony will be referred to as necessary in the body of this opinion.

The City tendered a jury instruction which stated that a railroad company must maintain highway grade crossings over its tracks and approaches thereto. The trial court refused to submit the instruction to the jury. On January 22, 1981, the jury returned a verdict for plaintiff in the amount of $300,000.

First, the City argues that the trial court erred in not allowing it to file a third-party complaint against Milwaukee Railroad. On January 20,1981, Milwaukee Railroad was dismissed. The following day, the City requested leave to file a third-party complaint against Milwaukee Railroad. The trial court denied the City’s request. The basis for the trial court’s decision was that it did not want to further delay the trial. We note that the City had years between the date the lawsuit was filed and the date the trial began in which to file a counterclaim (Ill. Rev. Stat. 1979, ch. 110, par. 38) or a third-party action (Ill. Rev. Stat. 1979, ch. 110, par. 25(2)). Instead, the City waited until after midtrial and after Milwaukee Railroad had been dismissed from the suit. Under these circumstances, we cannot say that the trial court abused its discretion in refusing the City’s request. See Hastings v. Abernathy Taxi Association, Inc. (1973), 16 Ill. App. 3d 671, 306 N.E.2d 498.

Next, the City argues that the trial court erred in refusing to submit to the jury an instruction relating to a railroad’s statutory duty to maintain its railroad crossing. The tendered instruction included part of section 58 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 62) and was patterned after IPI Civil No. 60.01 (Illinois Pattern Jury Instructions, Civil, No. 60.01 (2d ed. 1971)). The full text of the instruction is as follows:

“At the time of the occurrence in question, there was in full force and effect in the STATE OF ILLINOIS and the CITY OF CHICAGO, a certain statute which provided that:

‘e * 6 Every railroad company operating in the State of Illinois shall construct and maintain every highway grade crossing over its tracks within the State so that the roadway at the intersection shall be flush with the rails, and, unless otherwise ordered by the commission, shall construct and maintain the approaches thereto at a grade of not more than five (5) per cent within the right of way for a distance of not less than twenty-five (25) feet on each side of such tracks

If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the party was negligent before and at the time of the occurrence.”

The trial court’s reason for refusing to give the instruction was that Milwaukee Railroad was no longer a party to the lawsuit. The jury instruction unquestionably would have been appropriate if the trial court had permitted the City to file a third-party complaint. The fact that Milwaukee Railroad settled with plaintiff and was dismissed from the lawsuit raises a question as to the applicability of the instruction.

In order to determine whether the City was guilty of negligence, it was first necessary for the jury to determine whether it was the City’s duty to maintain the crossway. In our opinion, the statutory provision included in the tendered jury instruction is dispositive of that issue. Clearly, it states that the railroad company has the duty of maintaining railroad crossings. Another portion of section 58 permits the Illinois Commerce Commission to relegate this duty to municipalities. (See Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 62; City of Chicago v. Illinois Commerce Com. (1979), 70 Ill. App. 3d 655, 388 N.E.2d 1084.) The record in this case, however, contains no evidence of any order assigning this duty to the City.

Plaintiff urges that the City was not prejudiced by the trial court’s rejection of the instruction because the City was permitted to read pertinent provisions of section 58 to the jury and to refer to the statute in its closing argument. In our view, one of the essential purposes of an instruction is to highlight the law applicable to the facts of a case. Permitting defense counsel to read a statute to the jury and to refer to it in closing argument does not have the same effect as a jury instruction. We hold that the tendered instruction was a correct statement of the law applicable to the facts in this case and that the trial court erred in refusing to give it.

One additional point which merits mention is that plaintiff presented two witnesses who testified, in essence, that it was the duty of city police officers to report street hazards. Neither of these witnesses were listed in plaintiff’s interrogatories or supplemental interrogatories. We recognize that the decision as whether to exclude a witness under these circumstances is within a trial judge’s discretion. (See Smith v. Realcoa Construction Co. (1973), 13 Ill. App. 3d 254, 300 N.E.2d 855.) In light of our disposition of the case on the specific interrogatory issue, we need not determine whether the trial court abused its discretion in permitting these witnesses to testify. We note, however, that the testimony of these two witnesses was the only evidence regarding a city police officer’s duty to report hazardous conditions and that it may have influenced the jury in its finding for plaintiff.

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

Judgment reversed.

CAMPBELL, P. J., and O’CONNOR, J., concur.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS WORTHEN, Defendant-Appellant.
    First District (2nd Division)
    No. 80-1034
    Opinion filed March 30, 1982.

      Ralph Ruebner, Steven Clark, and Bradley S. Bridge, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lester M. Joseph, and Lawrence Stasica, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendant, Thomas Worthen, was indicted on two counts of armed robbery, two counts of attempt murder, four counts of aggravated battery and two counts of armed violence. (Ill. Rev. Stat. 1977, ch. 38, pars. 18 — 2, 8 — 4, 12 — 4, 33A — 2.) In a bench trial defendant was found guilty of one count of armed robbery, one count of attempt murder and one count of aggravated battery. Defendant was sentenced to serve concurrent terms of imprisonment of 20 years for armed robbery, 15 years for attempt murder and 5 years for aggravated battery. Defendant appeals contending that (1) the trial court improperly denied defendant’s motion for a new trial; (2) the State improperly referred to an out-of-court identification of defendant by a complainant who did not testify at trial; (3) defendant was not proved guilty beyond a reasonable doubt; (4) the trial court abused its discretion in imposing a 20-year sentence for armed robbery after imposing a lesser sentence of 15 years for attempt murder; and (5) defendant’s case should be remanded for resentencing where defendant was improperly convicted and sentenced for aggravated battery, a lesser-included offense of attempt murder. For the reasons which follow, we affirm defendant’s convictions and sentences for armed robbery and attempt murder and vacate his conviction and sentence for aggravated battery.

A recitation of the evidence relevant and material to the issues presented in the appeal will appear in our discussion of those issues.

I

Defendant argues that the trial judge improperly rejected Loretta Tyler’s testimony, given after trial, that defendant was not the man who had robbed and stabbed her.

Approximately one month after trial, defendant moved for a new trial on the ground that the victim, Loretta Tyler, realized that defendant was not the man who attacked her on December 25, 1978. Tyler testified that she saw the actual offender sitting in a grocery store one week after defendant’s trial. The State presented evidence impeaching her account and indicating a possible bias because of a friendship between defendant’s sister and Tyler’s aunt. Because of the importance defendant places on the trial judge’s reasons for rejecting Tyler’s recantation, we have excerpted his remarks in their entirety:

“I did not believe Miss Tyler today. Miss Tyler is unfortunately nothing but one of the witnesses in a criminal justice system that has to come forward. I suppose her testimony here today helped her, maybe saved her life. I don’t know what pressure’s been put on that witness since she’s last appeared in this court.
Her story of March 10th, I do not accept and do not believe. Mr. Worthen was proven guilty beyond all doubt in this courtroom and after 15 months the witness now sees a man at a store at a bus stop and that’s the man. I can’t accept that, I don’t believe it, and I feel sorry for Miss Tyler to have to come into this court and do what she had to do today. The pressures must be inexplicable as to what she has to deal with in terms of the Defendant’s sister and her sister or aunt rather, and the other individuals where Miss Tyler evidently is continuing to live.
But after 15 months Miss Tyler was very clear. And then we have this, in my mind, unbelievable incident, unbelievable actions on her part, and I’m not going to accept it and I’m not going to allow the courts in this county to be intimidated, if Miss Tyler I’m sure was intimidated, but we’re not going to conduct the courts, the criminal justice systems, although we’ll have to be aware of that problem. But we’re going to proceed in trying cases. And got [God?] help the victims because they’re afraid to come to court and they’re afraid to sometimes live in their own buildings.
Motion for a new trial is denied.”

Defendant argues that the trial judge’s remarks that Tyler was pressured into changing her testimony were “unsupported conclusions, based on no more than the court’s private notions or investigations, « « We cannot agree that the judge’s comments indicated that he had conducted a private investigation into the facts of the case. (See People v. Wallenberg (1962), 24 Ill. 2d 350, 181 N.E.2d 143.) The judge clearly rejected Tyler’s testimony on proper grounds, finding it unacceptable and unbelievable. Recantation of trial testimony is generally unreliable, and a new trial should be denied where the trial judge is not satisfied that such testimony is true. (People v. Evans (1977), 54 Ill. App. 3d 883, 886, 370 N.E.2d 284.) Based on our examination of the record, we cannot say that the trial judge’s rejection of Tyler’s testimony was improper.

II

Defendant contends that his right to confrontation was denied by evidence of an out-of-court identification of defendant by Jackie Bryant, a complainant who did not testify at trial.

Officer Capesius testified on direct examination that on December 30,1978, he showed a group of photographs including one of defendant to both Loretta Tyler and Jackie Bryant. Capesius did not testify that Bryant identified defendant but he did state that after showing the photographs “to both of these victims” he then charged defendant with attempt murder. In closing argument the prosecutor stated:

“It’s also important to remember that these [photographs] were shown to two victims. There is not just one victim in this case, and they were shown separately and independently to each victim, and after the photographs were shown to each victim, [defendant] was then charged with, not one but two counts of Attempt Murder and Two counts of Armed Violence, and Two counts of Armed Robbery, meaning two victims.”

When defense counsel objected to these inferences the trial court told the prosecutor to “continue with your argument.” Defendant now contends that the testimony of Officer Capesius combined with the comments of the prosecutor had the effect of buttressing the State’s case against defendant through the use of an inadmissible out-of-court identification of defendant by a witness who did not testify at trial. See People v. Rogers (1980), 81 Ill. 2d 571, 579, 411 N.E.2d 223.

We cannot accept defendant’s argument for three reasons: (1) although the trial court did not sustain defendant’s objection to the prosecutor’s remarks, there is nothing in the record to indicate that the court affirmatively relied on those inferences in finding defendant guilty; (2) logically the prejudice, if any, to defendant from these comments would have been manifested in finding defendant guilty for either the armed robbery or the aggravated battery of Jackie Bryant, who allegedly made the identification. Defendant, however, was found not guilty on all charges involving Bryant; (3) any error in not sustaining defendant’s objection must be viewed as harmless in light of the strong identification testimony of Loretta Tyler.

Ill

Defendant contends that he was not proved guilty beyond a reasonable doubt. Defendant relies on four factors: (1) that the trial court failed to properly evaluate the credibility of Loretta Tyler who, after trial and before sentencing, recanted her trial testimony; (2) the alibi testimony of Linda Mitchell; (3) that Mitchell’s credibility was improperly impeached by the State; and (4) that the trial court improperly allowed the introduction of hearsay identification of the defendant Jackie Bryant. The first and fourth factors have been considered previously and will not be discussed further here.

With respect to the second factor, defendant has placed great emphasis on the alibi testimony of Linda Mitchell. The credibility of Mitchell’s testimony, however, was properly a matter for the trial court, sitting as the trier of fact, to decide. A trial court need not accept the alibi testimony of a witness even if that witness is unimpeached. (People v. Jackson (1973), 54 Ill. 2d 143, 149, 295 N.E.2d 462.) Here, however, we note that there was evidence of a possible bias in that Mitchell had been defendant’s girlfriend, had been intimate with him and had known his sister for several years.

The third factor on which defendant relies is that the trial court could not have made a detached evaluation of Mitchell’s credibility because of the State’s improper attempt to impeach her on cross-examination.

In cross-examining Mitchell the State suggested that she had used assumed names, that she had had repeated dealings with the police and numerous changes of address. Mitchell denied these accusations which apparently were being made to show that she had a criminal background. During a recess in the trial the State discovered that its attempted impeachment concerned a different Linda Mitchell. The State informed the court that the impeachment could not be proved up and that “as far as that is concerned, it’s not the same Linda Mitchell” and requested the court to disregard the predicate laid for impeachment. The court stated that in a bench trial it could disregard the impeachment and that it would “disregard the questions and answers which were posed to Linda Mitchell since the impeachment wasn’t perfected.” The court then stated: “I think that they have totally cleared the air, and I will disregard the line of questioning and deny your motion for a mistrial.”

There is a presumption that in a bench trial the court will consider only competent evidence. Resort to this presumption is unnecessary in the present case because the trial judge expressly stated that he would ignore the line of questioning of which defendant complains. Nothing in the record indicates anything to the contrary. People v. Nuccio (1969), 43 Ill. 2d 375, 253 N.E.2d 353, cited by defendant, is readily distinguishable on its facts. We are satisfied that defendant was proved guilty beyond a reasonable doubt.

IV

Defendant contends that the trial court abused its discretion in imposing a 20-year sentence for armed robbery after imposing a lesser sentence of 15 years for attempt murder. Although both armed robbery and attempt murder are punishable as Class X felonies (Ill. Rev. Stat., 1978 Supp., eh. 38, pars. 18 — 2,8—4(c)(1)), defendant argues that attempt murder is “the more serious of the two crimes because attempt murder threatens an individual’s life.” From this premise and based upon the facts of this case, defendant asserts that it was an abuse of discretion for the trial court to impose a longer sentence on the armed robbery conviction than on the attempt murder conviction. He therefore asks that the sentence for armed robbery be reduced to the sentence imposed for the attempt murder, 15 years.

Defendant cites no authority for the proposition that it is improper to impose a greater sentence for armed robbery than for attempt murder and we are aware of none.. In People v. Dozier (1974), 19 Ill. App. 3d 668, 312 N.E.2d 311, a case decided before the Class X legislation was enacted, the court upheld concurrent sentences of 15 to 30 years for armed robbery and 15 to 20 years for attempt murder over defendant’s contention that the sentences were excessive. Moreover, while defendant may be correct in stating that the attempt murder in this case was more serious than the armed robbery, defendant had two previous convictions for armed robbery, which the trial court specifically mentioned in imposing sentence. The court may well have believed that a longer sentence for armed robbery was required by virtue of defendant’s prior convictions for the same offense. We cannot say that the 20-year sentence imposed for armed robbery was an abuse of discretion. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

V

Finally, defendant contends that his conviction for aggravated battery should be vacated and the case remanded for resentencing on the attempt murder and armed robbery convictions because the trial court erred in convicting and sentencing him for both attempt murder and aggravated battery where both offenses arose out of the same conduct and aggravated battery is a lesser included offense of attempt murder. The State concedes that the conviction and sentence for aggravated battery must be vacated (see People ex rel. Walker v. Pate (1973), 53 Ill. 2d 485, 489, 507, 292 N.E.2d 387; People v. Nolden (1980), 91 Ill. App. 3d 532, 543, 414 N.E.2d 1124), but contends that the armed robbery and attempt murder offenses should not be remanded for resentencing. We agree.

The trial court imposed separate sentences on each of defendant’s convictions. This distinguishes two of the cases defendant cites in support of his argument that the cause should be remanded for resentencing on the other convictions. (See People v. Smith (1980), 86 Ill. App. 3d 302, 408 N.E.2d 101, and People v. Ross (1978), 60 Ill. App. 3d 857, 377 N.E.2d 230.) We also note that the trial court imposed greater sentences for the armed robbery and attempt murder offenses than it imposed for aggravated battery. Unlike People v. Jones (1980), 89 Ill. App. 3d 1030, 412 N.E.2d 683, where the court mistakenly believed aggravated battery was a Class X felony and imposed three concurrent nine-year terms for armed robbery, aggravated battery and armed violence, or People v. Deal (1979), 69 Ill. App. 3d 74, 387 N.E.2d 21, where the appellate court reversed the more serious of defendant’s two convictions, there is nothing in this record to suggest that the trial court was influenced by the aggravated battery conviction and sentence in imposing the sentences for attempt murder and armed robbery. Accordingly, while the judgment of defendant’s conviction for aggravated battery must be vacated, we affirm the sentences on the remaining convictions of armed robbery and attempt murder.

For the reasons hereinabove stated we affirm defendant’s convictions and sentences for armed robbery and attempt murder and vacate his

conviction and sentence for aggravated battery.

Affirmed in part and vacated in part.

DOWNING and HARTMAN, JJ„ concur.

       For the sake of clarity we note that defendant was charged with the armed robbery, attempt murder and aggravated battery of Loretta Tyler and Jackie Bryant. Defendant was also charged with armed violence. Tyler testified against defendant. Bryant did not testify and the trial court sustained defense counsel’s objections to the State’s attempt to establish her whereabouts (apparently Grand Rapids, Michigan) and explain her absence from the trial.