author: JUSTICE JIGANTI

text:
    ELLEN R. RUBENSON, Plaintiff-Appellant, v. MSI REAL ESTATE, Defendant-Appellee.
    First District (4th Division)
    No. 81 — 1405
    Opinion filed June 24, 1982.
    Rehearing denied September 13,1982.
    Robert W. Patterson and Peter F. Lovato III, both of Chicago (Hopkins & Sutter, of counsel), for appellant.
    William I. Goldberg and John H. Ward, both of Antonow & Fink, of Chicago, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Ellen R. Rubenson, brought this action against the defendant, MSI Real Estate, to recover compensation for procuring a tenant for the defendant’s building. The trial court dismissed the plaintiff’s amended complaint with prejudice on the grounds that she was not a licensed real estate salesman at the time she provided the services for which she seeks compensation. The trial court based its ruling on section 7 of the Real Estate Brokers and Salesmen License Act (License Act) which prohibits any person who is not licensed under the Act from bringing a suit for compensation for acts restricted to licensed real estate salesmen and brokers. (Ill. Rev. Stat. 1979, ch. Ill, par. 5714.) The plaintiff appeals, contending that she was exempt from the provisions of the Act and, alternatively, that if she fell within the prohibition, she could still recover the claimed compensation based upon services she performed after obtaining a license.

The plaintiff’s amended complaint alleges that on May 23, 1977, the defendant offered to employ her as a “regular salaried employee” to perform leasing services in connection with Three Illinois Center, a high-rise office building owned in part and developed by the defendant. The agreement did not provide for such services with respect to any other property. She was offered an annual “salary” of $12,000 and additional compensation computed in accordance with a specific formula in the event she obtained any tenants. The plaintiff accepted the offer of employment. This agreement was not reduced to writing. She was not a licensed salesperson at the time. On July 20, 1977, she contacted a representative of Peat, Marwick, Mitchell & Company (Peat-Marwick) to determine whether that firm had any interest in leasing space in the defendant’s building. She was informed of Peat-Marwick’s possible interest and met with its representative on July 27, 1977. On August 9, 1977, the plaintiff and a vice-president of the defendant took certain officers of Peat-Marwick to lunch and on an inspection tour of the building.

On November 2, 1977, the plaintiff learned that she had fulfilled the requirements for obtaining a real estate salesman’s license. On that same date the plaintiff and the defendant entered into a written employment agreement which recited the fact that she was a licensed real estate salesman. The agreement, which is attached to the plaintiff’s complaint, states that it was effective as of May 23, 1977, the date of the oral employment agreement. Unlike the oral agreement, it does not restrict the plaintiff’s services to obtaining tenants for Three Illinois Center. It provides that the plaintiff would receive a $12,000 “annual draw” which would be deducted from the total amount of commissions earned by her in that year. The agreement then sets out a formula for determining the amount of commissions earned by the plaintiff for procuring leases.

The plaintiff alleges that after she received her license, she “kept in contact” with the representative of Peat-Marwick whom she had originally contacted and prepared surveys of space usage in the building then occupied by Peat-Marwick. From time to time, the plaintiff was apprised of meetings between senior officials of the defendant and Peat-Marwick but was instructed not to attend the meetings. The defendant advised her orally that despite her “more passive role” in the negotiations, she would recover a commission if Peat-Marwick signed a lease.

In December 1978, while negotiations with Peat-Marwick were continuing, the defendant terminated the plaintiff’s employment. In May of 1979, Peat-Marwick signed a lease and the plaintiff subsequently demanded compensation.

Section 7 of the License Act prohibits a suit for compensation for any services which the Act restricts to licensed real estate brokers and salesmen unless the person performing those services was licensed prior to “offering to perform” them or “procuring any promise” of compensation therefore. (Ill. Rev. Stat. 1979, ch. Ill, par. 5714.) The plaintiff’s complaint shows that she was not licensed in May of 1977 when she offered to perform leasing services for the defendant, nor was she licensed in July of 1977 when she entered into negotiations with Peat-Marwick.

The plaintiff argues that the provisions of section 6 serve to exempt her from section 7. Section 6 provides as follows:

“The provisions of this Act shall not apply to any * * * corporation who as owner or lessor shall perform any of the acts aforesaid with reference to property owned or leased by them, or to the regular salaried employees thereof, with respect to the property so owned or leased, where such acts are performed in the regular course of, or as an incident to, the management of such property and the investment therein, and not in connection with a whole or partial vocation of selling or offering to sell, buying or offering to buy, or negotiating the purchase or sale or exchange of real estate, or the leasing or offering to lease, or renting or offering for rent of any real estate, or the negotiation of leases therefore or of the improvements thereon.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. Ill, par. .5713.

Section 6 provides generally that an action for compensation by a building owner’s regular salaried employee may be brought despite the fact that the employee is not licensed, where that employee leases property in the regular course of managing the property. Such an action may not be brought, however, if the employee is engaged in the vocation of leasing real estate. According to Rubenson’s allegations, her only duty was to lease the property involved. The provision of section 6 regarding persons engaged in the “vocation of leasing” would have no meaning if it could not be applied to a person such as Rubenson. The statute would have to be read as saying that the vocation of leasing provision does not apply to persons employed by owners of buildings to manage the property even if those employees are engaged solely in leasing the property. In our judgment, that construction does not comport with the general purpose of the License Act which is to evaluate the competence of those engaged in the real estate profession.

In support of her position, Rubenson cites Brandenberry Park East Apartments v. Zale (1978), 63 Ill. App. 3d 253, 379 N.E.2d 674. In Brandenberry, Zale was the contract seller of a building purchased by Brandenberry, and, after signing the contract to sell, continued to manage the property for Brandenberry under a contract calling for management fees. Brandenberry refused to pay the management fees on the theory that the “management” services really constituted nothing more than leasing apartments and were therefore restricted by the License Act to licensed salesmen. The court found that section 6 of the License Act exempted Zale from the license requirement and allowed his suit for compensation. Rubenson argues that by allowing Zale to recover, the court found that despite the fact that he performed only leasing services, he was not engaged in the vocation of leasing.

We do not believe that to be a proper interpretation of the holding in Brandenberry. First, no one raised the issue of whether Zale was in the vocation of leasing, and there are few facts in the opinion which bear on that question. Second, although Rubenson accepts as a fact the allegation by Brandenberry that Zale performed no management services other than leasing, the court clearly stated that there was no evidence to support that allegation. Thus, we cannot draw the conclusion that Zale was in the vocation of leasing.

The plaintiff next argues that even if she is not exempt from the license requirement, she is entitled to recover for services rendered after she obtained a license. According to her allegations, these services amounted to “keeping in contact” with a representative of Peat-Marwick and preparing a space usage survey.

Section 7 explicitly bars suits to recover compensation for services coming under the definition of “real estate salesman” unless the person claiming such compensation was licensed “prior to the time of offering to perform *** or procuring any promise or contract for the payment of compensation for” such services. (Emphasis added.) (Ill. Rev. Stat. 1979, ch. Ill, par. 5714.) As we construe the plaintiff’s complaint, she is seeking compensation, in accordance with the formula set forth in the written agreement for computing commissions. We do not believe she is seeking restitution from MSI for unjust enrichment in connection with her efforts in preparing the survey and keeping in contact with Peat-Marwick. To allow her to recover the amount she is claiming would necessarily involve compensating her for leasing services which she offered to perform in May of 1977 — five months before she was licensed under the Act.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON, P. J., and ROMITI, J., concur.


source: Caselaw Access Project

author: JUSTICE MCNAMARA

license: Public Domain

text:
    BOARD OF EDUCATION OF POSEN-ROBBINS SCHOOL DISTRICT NO. 143½, COOK COUNTY, Plaintiff-Appellant, v. JOE DANIELS et al., Defendants-Appellees.
    First District (3rd Division)
    No. 81 — 2542
    Opinion filed August 4, 1982.

      Scariano, Kula & Associates, of Chicago Heights (Alan T. Sraga and Anthony Scariano, of counsel), for appellant.
    Cornfield and Feldman, of Chicago (Jacob Pomeranz, of counsel), for ap-pellees.
   JUSTICE MCNAMARA

delivered the opinion of the court:

Plaintiff, Board of Education of the Posen-Robbins School District No. 1431/2 (Board), filed this action seeking a declaratory judgment to vacate an arbitration award on the grounds that it was based on gross errors of fact and law, and that the arbitrator’s decision was contrary to the manifest weight of the evidence. The trial court considered defendants’ motion to dismiss as a motion for summary judgment and entered judgment for defendants, finding that the arbitration award should not be disturbed. The Board appeals.

The initial dispute arose from defendants’ objection to the Board’s interpretation of a provision of article V, paragraph 17 of their collective bargaining agreement. That provision provided in pertinent part:

“That commencing with the school year September 1, 1973, each teacher shall, every five-year period thereafter, be required to pursue additional academic training at either graduate or undergraduate level, earning within said period a minimum of six (6) credit hours. Upon failing to comply with said provision, the teacher shall be barred from any annual increments otherwise payable on the salary schedule as adopted from time to time.
That all lateral moves on the salary schedule shall be in accordance with a plan of instruction previously approved by the Superintendent of Schools of the District. No lateral movement on the salary schedule shall be recognized or compensated unless this condition has been met.”

In a letter dated August 22, 1978, the Board announced its intent to impose the sanction provided in paragraph 17 against 28 teachers who had failed to pursue the additional academic training required by that provision. The Board interpreted the provision as allowing it to freeze the salaries of the 28 teachers so that they received the same salaries in the 1978-79 school year that they had received in the 1977-78 school year.

In June 1979, the 28 teachers affected by the salary freeze first filed their grievances. Only the defendant teachers continued to the later grievance stages. The Board denied the grievances, finding that they were not timely filed and that the sanctions were appropriate in light of the grievants’ failure to pursue the additional academic training required by paragraph 17. The matter proceeded to arbitration as provided by the collective bargaining agreement.

At issue in the arbitration were the timeliness of the filing of the grievances and the meaning of the word “increments” as it appeared in paragraph 17. Defendants maintained that the sanction was intended to freeze the status of the noncomplying teacher on the salary schedule, thus denying that teacher all lateral step increases based on additional education or years of service, while still affording such teacher any across the board salary increase which would affect the schedule as a whole. The Board countered that it had been correct in precluding each noncomplying teacher from any and all salary increases, thereby freezing the salary itself at its present dollar amount.

In ruling in favor of defendants, the arbitrator determined that the Board had improperly frozen the teachers’ salaries. As to the timeliness of the grievances, the arbitrator found that although the official grievances were not formally filed until June 1979, the Board was aware of the existence of the grievances from the time its interpretation was applied in the fall of 1978. Furthermore, the Board’s improper application of the language was of a continuous nature. The arbitrator thus concluded that the grievances were properly before him and ordered that the grievants be made whole for losses incurred as a result of the Board’s improper action. The trial court upheld that award and this appeal follows.

We first address the Board’s contention that the trial court erred in failing to vacate that portion of the award which determined that the teachers were entitled to a salary increase. Specifically the Board argues that the arbitrator’s interpretation of the word “increments,” as it appears in paragraph 17, was based on gross errors of law and was contrary to the manifest weight of the evidence. The Board asserts further that it was denied its right to judicial review as provided in the collective bargaining agreement because the trial court exercised undue restraint in its review of the arbitrator’s interpretation of the language of that agreement.

The courts have long recognized the overriding interest in finality inherent in the submission of a dispute to arbitration. (White Star Mining Co. v. Hultberg (1906), 220 Ill. 578, 77 N.E. 327.) The interpretation of a collective bargaining agreement is a function of the arbitrator. It is the arbitrator’s construction which was bargained for and the courts will not overrule that construction simply because their own interpretation differs from that of the arbitrator. (Board of Trustees v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 386 N.E.2d 47.) Accordingly, a court will review an arbitrator’s contract interpretation only to determine whether the award drew its essence from the agreement so as to prevent a manifest disregard of that agreement. Board of Trustees v. Cook County College Teachers Union, Local 1600.

The Board maintains, however, that due to a provision in their collective bargaining agreement, review of the award should not be limited by the general rule of restraint normally applicable to review of arbitration awards. Article IV A 3 of the agreement provides that any unresolved disputes between the parties are to be settled by arbitration. Although the agreement recites that “[t]he Board and the Union will abide in good faith with the decision of the arbitrator to the extent permitted by law,” it provides further that:

“The Union shall have no right to appeal from the decision of the Arbitration. The School Board has the right to appeal from the decision of the Arbitrator, and should they do so, the Union shall have no right to appeal from the Trial Court decision, but the School Board may do so if they so desire.”

Relying on language in White Star Mining Co. v. Hultberg (1906), 220 Ill. 578, 77 N.E. 327, and Aldrich v. Aldrich (1931), 260 Ill. App. 333, the board argues that the above provision entitles it to full judicial review. In White Star Mining, while exercising the restraint normally required when reviewing an arbitration award, the court alluded to a possible exception to this general principle where the contract contains an express intention to the contrary. Similarly in Aldrich the court referred to such a possible exception when it found mutuality in a contract even though the contract provided that one party had agreed to be bound absolutely by arbitration while the second party agreed to be bound only after court approval. Absent from both decisions, however, is any guidance as to what scope of review the exception might warrant. Nor does the provision in question here specify that the Board is entitled to any greatér "scope of review than that normally exercised in review of an arbitration award. We therefore find that the trial court was correct in limiting its scope of review in accord with the general rule.

We reject the Board’s contention that the arbitrator ignored the plain and unambiguous meaning of the term “increments” and erred in considering extrinsic evidence concerning its trade meaning and in relying on his own personal experience. We note that the Board itself introduced extrinsic evidence to support its own interpretation of the term. Leonard Garriere, chief negotiator for the Board, testified that prior to 1969 a similar provision in the agreement between the parties provided that noncomplying teachers be denied “the annual increment.” According to Garriere, this was subsequently changed to “any annual increments” in order to give the Board some control over teachers who had reached the top of the salary schedule and who therefore had no incentive to secure additional education absent the threat of a salary freeze.

The testimony to which the Board objects was that of Thomas C. Holland, an officer of the Illinois Federation of Teachers. He stated that the term “increments,” as it is commonly used in collective bargaining agreements, refers, not to an across the board pay increase as urged by the Board, but rather to a step increase based on past or professional experience. We find that the term “increments” as used in paragraph 17 was susceptible to more than one meaning and that Holland’s testimony was relevant as to the meaning intended by the parties since both had previously entered similar agreements.

We likewise agree with the trial court that the arbitrator’s utilization of his own past experience in arriving at his decision did not amount to a gross error of law. Relying on his own experience and the testimony of experts, the arbitrator also based his interpretation of the term “increments” on the relationship of the term to the agreement as a whole. We find that the award was drawn from the essence of the agreement. Whether or not this court’s thoughts as to the proper interpretation of the term “increments” differ from those of the arbitrator is of no consequence. It was the aribitrator’s interpretation, not that of the court, for which the parties bargained. Board of Trustees v. Cook County College Teachers Union, Local 1600.

The Board also contends that the trial court erred by failing to vacate that portion of the abitration award which determined defendants’ grievances to be timely filed. Article IV A 3 of the collective bargaining agreement provides in pertinent part:

“The aggrieved teacher shall file the grievance in writing and at a mutually agreeable time, discuss the matter with the principal in the presence of a Union representative, if so desired, with the objective of resolving the matter. The filing of the grievance at the first stage must be within five (5) school days of the aggrieved becoming aware of the grievance.”

The salary freeze in question was imposed at the start of the 1978-79 school year. Although no formal grievances were filed until June 1979, the arbitrator found that the Board was aware of the grievants’ and Union’s dissatisfaction immediately upon learning of the Board’s interpretation and application of the language in question. In light of this awareness and of the continuous nature of the Board’s improper application of the language, the arbitrator found that the delay in filing the formal grievance did not amount to an abandonment of the grievances by defendants.

Questions involving contractual time limitations are for the arbitrators, not the courts to decide. (Village of Carpentersville v. Mayfair Construction Co. (1981), 100 Ill. App. 3d 128, 426 N.E.2d 558.) Such decisions usually require construing the contract in light of the customs and practices of the industry, a task peculiarly within the competence of the arbitrator. (Village of Carpentersville v. Mayfair Construction Co.) Moreover, since the parties have bargained for the arbitrator’s construction of the agreement, the courts will not overrule the arbitrator’s decision because their interpretation is different from that of the arbitrator. (Board of Trustees v. Cook County College Teachers Union, Local 1600.) In the present case we find that the arbitrator’s decision as to timeliness did not constitute a manifest disregard of the agreement between the parties so as to justify our overruling it.

For the reasons stated, the judgment of the circuit court of Cook County upholding the arbitration award is affirmed.

Judgment affirmed.

McGILLICUDDY and RIZZI, JJ., concur.


author: JUSTICE LINN

text:
      In re MARRIAGE OF LYNN KELLER, Petitioner-Appellant, and GARY KELLER, Respondent-Appellee.
    First District (4th Division)
    No. 81 — 1699
    Opinion filed August 5, 1982.

      Wayne T. Lofthouse and Richard N. Mueller, both of Schiller Park, for appellant.
    Feiwell, Galper & Lasky, of Chicago (Michael J. Berger and Craig P. Ehrlich, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

After eight years of marriage, Lynn and Gary Keller obtained a dissolution of their marriage in July 1981. Lynn appeals from that portion of the judgment of dissolution of marriage pertaining to the valuation and division of marital property, and the award of attorney fees to be paid her attorneys by Gary. The issues presented for review are whether (1) the trial court, after awarding the marital home to Lynn, erred in requiring her to pay Gary for his interest in the home’s equity; (2) the trial court’s award to Lynn of an interest in Gary’s retirement plan was inadequate; (3) the trial court erred in not requiring Gary to account for disbursements from a savings account; and (4) the trial court’s award of attorney fees and costs to Lynn’s counsel was inadequate.

We affirm the judgment of the trial court.

Facts

Gary and Lynn Keller were married on October 21, 1972. They have two children, born in 1976 and 1979. In 1979, Lynn filed her petition for legal separation, which was subsequently amended to a petition for dissolution of marriage. In 1981, at the hearing of the cause, the parties stipulated to the majority of the factual issues, including the grounds for dissolution of their marriage.

The evidence and stipulations disclosed that Gary was employed as a truck driver. His gross salary, including base pay and bonus, was $46,800 per year, with a net income of $2212 per month. Lynn had been employed intermittently as a receptionist at a medical center, and ended her latest employment there in November 1980. She had been earning $90 per week at that time. During the marriage, the parties resided in a house they owned in Franklin Park, Illinois. The home was valued at $60,000, and at that time the parties had a net equity of $28,000.

Gary had a Keogh retirement plan, valued at $40,525, which would mature only in the event of Gary’s employment termination, permanent disability, attaining the age of 59V2, or death. Gary did not have the right to borrow against the plan.

The parties also had a joint savings account, which at one time had a balance of $3000. However, Gary had substantially depleted the account in order to pay for various bills and expenses incurred by both parties.

At the conclusion of the hearing, the trial court entered a judgment of dissolution of marriage. Pursuant to the parties’ agreement, the court awarded custody of the two minor children to Lynn, and required Gary to continue to be responsible for their major medical and dental expenses. Gary also was required to maintain the children as beneficiaries of his life insurance policy. The judgment further incorporated the parties’ agreement giving Lynn the substantial portion of the personal property.

As for the contested issues, the trial court awarded Lynn the marital home. Gary would receive from Lynn one-half of the home’s current equity, $14,000, within six months after the occurrence of any of certain enumerated events: Lynn’s remarriage or cohabitation with another person on a resident, continuing conjugal basis; sale of the marital residence; or September 5, 1984. Lynn was also awarded 25% of Gary’s retirement plan, $10,125, payable when the plan matured.

In addition, Lynn was awarded unallocated maintenance and child support of $1000 per month for four years, plus 30% of any bonus Gary might receive. After the conclusion of this period, Lynn is to receive child support payments of $400 per month and 25% of Gary’s bonuses.

Last, Gary was required to pay all of Lynn’s attorney fees and costs. Lynn’s attorneys had petitioned the court for fees and costs to-talling over $13,300. Gary was ordered to pay $1320, which was in addition to $2434 that had already been paid.

Opinion

I

Lynn contends that the trial court erred in dividing the parties’ marital property. Initially, we note that section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)) provides the court with 10 factors to consider when dividing marital property. The trial court, after considering these factors, has broad discretion in rendering its award, and it is well established that a reviewing court is not justified in substituting its discretion for that of the trial court. In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 403 N.E.2d 730.

Lynn first argues that it was error to require her to pay Gary $14,000 for his share of the equity in the marital home, since she will certainly be unable to make this payment when it becomes due within four years. It is claimed that the effect of the court’s judgment wil be to force Lynn to sell the home and move at a time when the children remain of tender age. We find this argument unpersuasive.

Section 503(c)(4) of the Act states that, in dividing marital property, consideration should be given to the desirability of awarding the family home for a reasonable period to the spouse having custody of the children. This statutory directive is intended to minimize disruption in the lives of children whose parents have dissolved their marriage. The trial court in the instant case obviously took cognizance of this guideline and awarded the home to Lynn. The only requirement placed upon her was that she pay Gary one-half of the home’s present equity within four years. However, Lynn does not have to sell the home or otherwise disrupt the children in order to fulfill this obligation. By allowing several years before Gary must be paid, the trial court properly balanced the needs of Lynn and the children with the right of Gary to share in the home’s equity.

In In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561, 425 N.E.2d 1146, a similar award was upheld. In Rothbardt, the sole child of the parties was eight years old at the time of the proceedings. The trial court awarded the marital home to the custodial spouse and required her to pay the husband his equity interest in the property within two years. (See also In re Marriage of Woolsey (1980), 85 Ill. App. 3d 636, 406 N.E.2d 1142; In re Marriage of Thompson (1979), 79 Ill. App. 3d 310, 398 N.E.2d 17; Schuppe v. Schuppe (1979), 69 Ill. App. 3d 200, 387 N.E.2d 346.) In the present case, we do not believe that the trial court abused its discretion, and that portion of the judgment pertaining to the marital home is affirmed.

II

Lynn next argues that the trial court improperly divided Gary’s Keogh plan. Pursuant to stipulation, the plan was valued at $40,500. The trial court awarded Lynn 25% of the plan’s value, $10,125, to be paid to her when Gary receives the fund after it matures.

Lynn contends that the trial court did not make sufficient findings concerning the plan’s value. We find no merit to this argument. The judgment specifically recited that the plan, valued at $40,500, was marital property, and further stated that the award to Lynn of 25% equaled $10,125. Clearly, the trial court valued the plan in accordance with the parties’ stipulation.

Furthermore, the trial court’s division of this asset was entirely proper under the circumstances. During their marriage, the parties acquired two assets of substantial value, the marital home and the Keogh plan, in addition to nominal liquid assets, such as cash, which could be divided between the parties. Thus, there were few assets that could have been awarded to Lynn to offset an award of the entire plan to Gary. Additionally, there was uncertainty as to when the plan would be mature.

In In re Marriage of Hunt (1979), 78 III. App. 3d 653, 663, 397 N.E.2d 511, 519, we affirmed a similar division of a pension plan:

“In those instances where it is difficult to place a present value on the pension or profit-sharing interest due to uncertainties regarding vesting or maturation, or when the present value can be ascertained but the type, or lack, of other marital property makes it impractical or impossible to award sufficient offsetting marital property to the nonemployee spouse, then the trial court in its discretion may award each spouse an appropriate percentage of the pension to be paid ‘if, as and when’ the pension becomes payable.”

Accordingly, it was proper to award Lynn an appropriate percentage of the retirement plan, to be paid when the funds become available.

Lynn also contests the award to Gary of a savings account which, at one time, had a balance of $3000. However, the evidence at trial disclosed that virtually all of the funds in this account had been depleted to pay for Gary’s attorney fees and Lynn’s charge accounts. As a result, there was little, if any, money remaining in the account which could have been awarded to either party.

In sum, the trial court correctly considered the evidence presented at trial and the parties’ stipulations to the nature-and value of their assets in arriving at its judgment. We hold that the division of property between the parties, under the circumstances of this case, was a proper exercise of the court’s discretion.

Ill

Last, Lynn contends that the trial court erred in failing to grant a larger award of attorney fees to her counsel. Lynn’s attorneys had requested a total of $13,609 for their fees and costs. After a hearing, the trial court granted an award of $1320, which was in addition to $2434 that Gary had already paid Lynn’s attorneys.

The award of attorney fees rests in the discretion of the trial court and is not to be disturbed absent an abuse of discretion. (In re Marriage of Lovell (1981), 98 Ill. App. 3d 865, 424 N.E.2d 995.) In Christian v. Christian (1979), 69 Ill. App. 3d 450, 458-59, 387 N.E.2d 1254, 1260-61, the standards for determining an appropriate award of attorney fees were set forth:

“In addition to the relative financial positions of the parties, ■ the amount of fees to be allowed in a divorce proceeding depends on a consideration of the skill and standing of the attorneys employed, the nature of the controversy, and the novelty and difficulty of the questions at issue; the amount and importance of the subject matter, especially from a family law standpoint; the degree of responsibility involved in the management of the case; the time and labor required; the usual and customary charge in the community; and the benefits resulting to the client. (See Collins v. Collins (1977), 47 Ill. App. 3d 258, 263, 361 N.E.2d 787, 790; Greenbaum v. Greenbaum (1973), 14 Ill. App. 3d 217, 302 N.E.2d 165.) The work for which the compensation is sought must be shown to be reasonably required and necessary for the proper performance of legal services under the circumstances. (Gasperini v. Gasperini (1978), 57-Ill. App. 3d 578, 373 N.E.2d 576; see Moreau v. Moreau (1973), 9 Ill. App. 3d 1008, 282 N.E.2d 680.) The fees allowed should be fair and just to all of the parties involved; namely, the attorney to be compensated, the client, and the person who is required to pay. Gasperini v. Gasperini; Green v. Green (1976), 41 Ill. App. 3d 154, 354 N.E.2d 661.”

In the instant case, virtually all of the facts were presented to the court in the form of stipulations, and the issues involved were neither complex nor difficult. After reviewing the entire record in this cause, we conclude that the amount of attorney fees awarded by the trial court was well within the scope of its discretion and is therefore affirmed.

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

Affirmed.

JOHNSON, P. J., and ROMITI, J., concur.

      Gary’s counterpetition for dissolution of marriage was voluntarily dismissed before the final determination of the cause. '

      Lynn was granted the option, exercisable within 30 days of entry of the judgment, to receive $3750 immediately. Lynn did not elect to do so. As a result, any issue arising by reason of this alternative award has become moot.


author: PRESIDING JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELRIGE ANDERSON, a/k/a Eldridge Anderson, Defendant-Appellant.
    First District (5th Division)
    No. 81 — 405
    Opinion filed August 6, 1982.
    Rehearing denied September 15, 1982.

      James J. Doherty, Public Defender, of Chicago (Marc Fogelberg, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and David A. Stoioff, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant was convicted in a jury trial of attempted murder, armed robbery, and aggravated battery and sentenced concurrently to 25 years for attempted murder and armed robbery and to 5 years for aggravated battery. On appeal, he contends that (1) he was not proved guilty of attempted murder beyond a reasonable doubt; (2) the trial court erred (a) by improperly instructing the jury on attempted murder and (b) by admitting evidence of other crimes; (3) evidence of another robbery allegedly committed by defendant was precluded from admission by the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 702 — 9(1)); (4) he was 16 at the time of the offenses for which he was tried; and (5) his convictions for aggravated battery and attempted murder were based on the same act.

Complainant testified that she returned home from work at 1 a.m. on November 22, 1978; that as she was parking her car in front of her house at 5243 West Kammerling, in Chicago, she observed a man, whom she identified in court as defendant, walking down the sidewalk adjacent to her house; that after she parked the car, she walked to the sidewalk and asked defendant, who was then standing on the step of her house, whether she could help him; that he asked whether Judy was home — to which she replied that he had the wrong house; that defendant then walked toward her and, when he was 2 to 3 feet away, she saw a small dark gun in his hand pointed at her abdominal area with his finger on the trigger; that he told her if she said anything he would kill her, and he ordered her to give him her purse; that she told him, “You can have the purse, there’s nothing in it, but you can have it”; that he then placed his right arm around her neck and, holding the gun in his left hand, pressed it against her face and started walking her away from the house toward the alley; that she repeatedly asked him not to hurt her; that when they had walked four or five steps, she “started pulling away” from him, and he shot her in the lower left jaw; and that he then released her and walked away with her purse. She identified in court a gun, a dark navy pea jacket, and a blue knit ski hat as similar to those defendant had on the night in question.

On cross-examination, plaintiff testified that “as soon as I tried to pull away I was shot” and then, when asked whether her assailant put more force around her neck with his arm when she started to pull away, she answered, “I don’t remember because when I started to pull away it seems to me that simultaneously I was shot.”

Over defense objection, the State also presented testimony concerning two other armed robberies of women — one before and one after the occurrence in question — which were allegedly committed by defendant. Officer Richard Banaszkiewicz testified that at the time he arrested defendant for one of those armed robberies, he recovered a navy pea jacket, a blue knit ski hat, a nylon stocking mask, and a .22-caliber pistol.

The sole witness for the defense was defendant’s mother, who testified that her son was born at 8:45 a.m. on November 22, 1961.

Opinion

We consider first the contention of defendant that he was not proved guilty beyond a reasonable doubt.

To sustain a conviction for attempted murder, it must be shown that the accused acted with the specific intent to kill (People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331), but intent is a state of mind which, if not admitted, can be shown by surrounding circumstances, and the intent to take a life may be inferred from the character of the assault, the use of a deadly weapon, and other circumstances (People v. Koshiol (1970), 45 Ill. 2d 573, 262 N.E.2d 446, cert. denied (1971), 401 U.S. 978, 28 L. Ed. 2d 329, 91 S. Ct. 1209).

In the case before us, complainant testified that defendant pointed a gun to her stomach and said he would kill her if she said anything; that after he took her purse, he grabbed her and began walking her to a nearby alley, holding her around the neck with his right arm and pressing the gun held in his left hand to her jaw; that after they had walked four or. five steps she started to pull away, and he shot her in the face; and that when she started screaming, he walked away with her purse.

On cross-examination, when she was asked whether defendant put more force around her neck with his right arm when she started to pull away, she answered, “I don’t remember, because when I started to pull away it seems to me that simultaneously I was shot.” Based solely upon complainant’s use of the word “simultaneously,” defendant argues “Mrs. Hall [complainant] was shot at the instant she tried to jerk away. This indicates that the shooting was accidental, a reflex action ***, not an intentional act.”

This argument assumes that complainant, in attempting to free herself, used force sufficient to cause defendant to accidentally discharge the gun. There is, however, nothing in the record to support such an assumption. No questions were asked of complainant to clarify her use of the word “simultaneously,” and no inquiry was made to determine either the nature of any effort she made to free herself or whether she had in fact used any force to do so at the time of the shooting. She stated only that when she started to pull away from defendant, it seemed to her that simultaneously she was shot.

Furthermore, the record does not otherwise indicate that the shooting was accidental. Complainant gave uncontradicted testimony that with the gun pointed at her stomach and his finger on the trigger, defendant threatened to kill her; that he was pulling her toward the alley with the gun pressed to her face when it was discharged; and that after the shooting he neither said nor did anything to indicate an accidental shooting. In addition, from the testimony of defendant’s mother that she always kept the gun unloaded, it is reasonable to conclude that defendant loaded the gun prior to the shooting. Moreover, the apparent difficulty in the trigger pull of the gun further negates the assumption of an accidental shooting. Defense counsel, referring to the gun in closing argument, stated “[t]his trigger, it is a little difficult to pull, not so difficult to pull that it can’t be jerked, but difficult to pull,” and he then suggested to the jurors that they try to pull the trigger in the jury room “to see how difficult it is to pull with the hand that you don’t normally use.” Conceivably, the jurors followed this suggestion and perhaps found that the trigger was so difficult to pull that it could not be discharged accidentally, as contended by defendant. Furthermore, it has been stated that “the very fact of firing a gun at a person supports the conclusion that the person doing so acted with the intent to kill.” (People v. Seats (1979), 68 Ill. App. 3d 889, 895, 386 N.E.2d 879, 884; see also People v. Bingham (1979), 75 Ill. App. 3d 418, 394 N.E.2d 430; People v. Thorns (1978), 62 Ill. App. 3d 1028, 379 N.E.2d 641.) In light of the above, we are of the opinion that intent to kill was established and that defendant’s guilt was proved beyond a reasonable doubt.

We turn then to the contention of defendant that the court improperly instructed the jury that he could be convicted of attempted murder if he acted with intent to cause great bodily harm. It is clear that to convict for attempted murder an intent to kill must be shown, and it is error to instruct that a defendant could be found guilty of attempted murder if he acted with intent to do great bodily harm. People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28.

The giving of the specific instruction complained of, Illinois Pattern Jury Instruction, Criminal, No. 7.01 (1968) (hereinafter cited as IPI Criminal), stating that “[a] person commits the crime of murder who kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual,” was found to be error in Harris. We note, however, that no objection was made to the giving of IPI Criminal No. 7.01 and no question was raised concerning it in defendant’s post-trial motion. Under such circumstances, it has been held that the error was waived (People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513; People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856), and the State posits that the instructional error was not so plain, substantial, or grave as to warrant our taking notice of it (58 Ill. 2d Rules 451(c), 615(a)). In People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331, the court applied the waiver rule strictly and found that instructional error identical to that in the instant case did not present a substantial defect which required consideration in the interests of justice. As stated in Roberts:

“[T]he instruction defining murder was erroneous when considered in the context of the crime of attempted murder. The instruction was bad in that it told the jury that a person may commit the crime of murder when he has not only the intent to kill, but also when he has certain mental states other than an intent to kill. However, the inclusion of these other mental states in the nonmandatory definitional instruction does not constitute ‘grave error’ contemplated by the cases cited, which have applied the limited exception to the waiver rule provision of our Rule 451(c). In this case it is not necessary ‘as a matter of grace’ to apply this limited exception to assure the defendant a substantial means of enjoying a fair trial, and the evidence in this case is not ‘closely balanced’.” (75 Ill. 2d 1, 14-15, 387 N.E.2d 331, 337.)

See also People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343, where the same instructional error was held to be harmless because the evidence as to intent to kill was closely balanced.

Here, it is uncontradicted that defendant was pulling complainant toward an alley with one arm around her neck and with the other hand holding a gun to her face, when the gun was discharged by him. As we have explained above, the defense of an accidental shooting is not supported by the record and, in the absence thereof, it is clear that the evidence was not closely balanced. Accordingly, we find the instructional error to be harmless.

We next consider defendant’s contention that the trial court erred in admitting the testimony of two women who stated that defendant robbed them in separate incidents apart from the present case. We find no merit to this contention.

The record indicates that two women testified that they were victims of robberies by defendant. The first said that she was robbed by defendant at about 10:30 p.m. on November 9, 1978, as she was returning from school to her home at 1305 North Lockwood; that after she exited her car in front of her house and entered the vestibule, defendant forced his way inside, produced a revolver which he pointed at her stomach, and told her “Don’t scream. Give me your purse”; that she screamed anyway and backed up until she was against a wall; that she next remembered lying on the floor with defendant standing over her still pointing the gun at her; that she then gave him her purse, and he left; and that he was wearing a black knee-length topcoat but was not wearing a cap.

The second victim testified that she was robbed by defendant in the alley behind her home at 5035 West Crystal on November 28, 1978, at about 1 a.m. as she was parking her car in her garage directly behind her house because she could not find a place in front; that as she opened the door, she saw defendant standing about three feet from her pointing a gun at her; that he was wearing a blue knit hat and navy pea coat and had a nylon stocking over his face; that when he raised the stocking to wipe his face, she recognized him as someone she had seen in the neighborhood; and that he ordered her into the back seat of her car, where he took her purse.

In general, evidence of other crimes for which the accused is not on trial is inadmissible (People v. Lehman (1955), 5 Ill. 2d 337, 125 N.E.2d 506), particularly to show a propensity on the part of the accused to commit criminal acts (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489). However, such evidence is admissible to show other facts in issue, such as motive, intent, absence of mistake or accident, or modus operandi, for then it has independent relevance. (People v. Armstrong (1968), 41 Ill. 2d 390, 243 N.E.2d 825, cert. denied sub nom. Sumlin v. Illinois (1969), 394 U.S. 992, 22 L. Ed. 2d 768, 89 S. Ct. 1483; People v. Lehman (1955), 5 Ill. 2d 337, 125 N.E.2d 506.) Moreover, in order for evidence of other crimes to be admissible, its probative value must outweigh its prejudicial impact. People v. Romero (1977), 66 Ill. 2d 325, 362 N.E.2d 288.

With respect to the modus operandi principle, it was stated in People v. Butler (1978), 63 Ill. App. 3d 132, 140-41, 379 N.E.2d 703, 709:

“Evidence of other crimes is admissible to prove modus operandi if there is some clear connection between the prior offense and the crime charged which creates a logical inference that if defendant was guilty of one he may be guilty of the other. This inference of identity does not arise from the mere fact that the charged and prior offenses share certain common features or marks of similarity, for it may be that these similarities are shared not only by the charged crime and defendant’s prior offense but also by numerous distinct crimes committed by persons other than the defendant. [Citation.] Rather, the inference is created when both offenses share peculiar and distinctive common features [citations], so as to earmark both crimes as the handiwork of the accused [citations].”

Furthermore, it is unnecessary that the offenses be identical; rather, it is sufficient that when the significant common features of the offenses are considered together, a distinctive combination will become evident. (People v. Pavic (1982), 104 Ill. App. 3d 436, 432 N.E.2d 1074.) Finally, the decision to admit such evidence rests with the sound discretion of the trial court, and its determination will not be disturbed on review absent abuse of discretion. People v. Martin (1979), 80 Ill. App. 3d 281, 399 N.E.2d 265.

Here, the record reveals sufficient similarities to warrant the admission of the testimony of two prior armed robbery victims. In all three attacks the assailant used a small, dark gun which he held in his left hand. The women were attacked as they came home alone late at night, after leaving their cars. Two victims were accosted after they parked in front of their homes, and the third after she failed to find a parking space in front and parked in her garage. In each instance, the assailant pointed his gun at the victim’s stomach or chest and demanded her purse or money. In all three attacks, the purses of the women were taken. Finally, each attack took place within a 3-week period and in places of close geographical relationship — within an area 1100 to 1400 north and 5200 to 5300 west in the City of Chicago. In addition, after the attacks the victims gave the police similar descriptions of the assailant.

Although the attacker of the second victim attempted to hide his identity, that fact is insignificant in our view, since she recognized him as someone she knew in the neighborhood, and he may also have known that she might be able to recognize him. We also do not believe that the alleged rape of the third victim or the shooting of complainant here diminished the strong pattern of similarities among the armed robberies as recounted by each victim, nor was the alleged rape of one prejudicial to defendant since the jury was not informed of it. The potential prejudice was further alleviated by the jury instruction given here that evidence of other crimes should be considered only for the limited purpose of showing identification and design. (See People v. Kirkwood (1980), 82 Ill. App. 3d 252, 402 N.E.2d 677.) In light of the foregoing, we find no abuse of discretion.

Defendant next contends that the testimony of Doris Martinez was precluded from admission by the provisions of the Juvenile Court Act (the Act). He maintains because he was only 16 years old at the time of the Doris Martinez robbery, he was subject to the jurisdiction of the juvenile court, and that he might successfully challenge the jurisdiction of the adult court as to that incident. Defendant bases this contention on section 2 — 9(1) of the Act (Ill. Rev. Stat. 1977, ch. 37, par. 702 — 9(1)), which provides in relevant part:

“No adjudication, disposition or evidence given in proceedings under this Act is admissible as evidence against the minor for any purpose whatever in any civil, criminal or other cause or proceeding except in subsequent proceedings under this Act concerning the same minor.”

There is nothing in the record here to indicate that there was an adjudication or disposition or that any evidence was given in any proceeding under this Act concerning the Martinez robbery. Accordingly, section 2 — 9(1) does not preclude the admission in the present case of Martinez’ testimony — particularly since the purpose of such evidence was to show identity and design as to defendant — and thus it met the requirements of the rule prohibiting “other crimes” evidence, as discussed above. Considering this point and the fact that defendant was charged by information with the armed robbery of Martinez, we view his contention to be speculative and without merit.

Defendant further contends that he was under 17 years of age at the time of the alleged offense and thus could not have been prosecuted as an adult offender under the criminal laws of this State. (See Ill. Rev. Stat. 1977, ch. 37, par. 702 — 7(1).) In support of his position, defendant refers to the testimony of his mother that he was born at 8:45 a.m., November 22, 1961, and the fact that the alleged offense occurred at 1 a.m., November 22, 1978. Thus, defendant maintains that he was about 7 hours short of being 17 years old at the time of the occurrence in question. We reject this contention.

It is a familiar principle that in computing the age of an individual, the law does not recognize fractions of a day. In State v. Brown (Mo. 1969), 443 S.W.2d 805, the defendant contended that he did not become an adult until the anniversary of the precise hour and moment of his birth. Rejecting that contention, the court stated:

“[A]s a general rule, the law does not consider fractions of a day [citation]. While exceptions to this rule have been made by various courts, most relate to situations where the two acts occur on the same day, such as priorities of liens or deeds filed on the same day. As to computation of a person’s age, the same contention as defendant here makes was made in the early case (1633) of Herbert v. Turball 1 Keble 590, 83 Eng. Reprint 1129, 1 Sid 162, 82 Eng. Reprint 1033, and the court stated: '*** and whatever hour he was bom is not material, there being no fraction of days.’ ”

(Also see Erwin v. Benton (1905), 120 Ky. 536, 87 S.W. 291; Commonwealth v. Howe (1908), 35 Pa. Super. 554.) Applying the rule of Brown to the present case, it is apparent that defendant had attained the age of 17 at the time of the offense in question.

Finally, we note the agreement of the State that the same physical act of shooting was the basis for the convictions of both aggravated battery and attempted murder, the former being a lesser-included offense of the latter, and thus the conviction of aggravated battery and the sentence thereon will be vacated.

For the reasons stated, the judgments as to attempted murder and armed robbery are affirmed, but the judgment as to aggravated battery is vacated.

Affirmed in part; vacated in part.

LORENZ and MEJDA, JJ., concur.

      In the second of which the jury was not informed that the victim was also raped.

      The record further indicates that the witness was raped, but the jury was not informed of that offense.


author: JUSTICE O'CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN THOMAS LYNCH, Defendant-Appellant.
    First District (1st Division)
    No. 80 — 3171
    Opinion filed August 9, 1982.

      James J. Doherty, Public Defender, of Chicago (Robert M. Guch, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ca-simir J. Bartnik, and Raymond Brogan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O'CONNOR

delivered the opinion of the court:

Defendant, Steven Thomas Lynch, was found guilty by a jury of the murder of Jack Herdenberg and sentenced to a term of 40 years. He appeals, contending that he was not proved guilty of murder beyond a reasonable doubt and that his sentence was excessive. We affirm.

The record shows: On September 23, 1979, the body of Jack Her-denberg was found in an alley in Maywood by police. He had been shot twice from close range, once in the stomach and once in the head. He also had two cuts on his hand, a cut on his chin and a cut on his neck. The latter was about 2 inches long and IV2 inches deep at the left end but not as deep on the right. In the opinion of the pathologist, the neck wound could have been an attempt to slash his throat.

On September 30, 1979, the police received a call from Bob Green in which he gave them defendant’s name in connection with the death of Herdenberg. The next day the police arrested defendant in the parking lot behind his apartment. During a search of his van, the police found two concrete blocks. Immediately after being given his rights, defendant stated he had killed Herdenberg during a fight, but did not murder him. Defendant had a wound on his head and abrasions on his cheek and shin. The police took him to the hospital. At the hospital, the police played for him a tape of Green’s phone call.

Police Sergeant John Reed testified that defendant then told the police that on September 22 he went to Herdenberg’s apartment around 4:30 p.m. in connection with some money Herdenberg owed him. Herdenberg attacked defendant with a knife and stabbed defendant on the head and told defendant he was going to kill him.

The record also shows that defendant shot Herdenberg point blank in the stomach and face and slashed his throat. Defendant then went to work his shift as a delivery driver. When his shift ended, he returned to the victim’s apartment, cleaned up the blood and disposed of the gun and the blood-soaked cleaning towels. He then placed the body in a sleeping bag, covered the head with a garbage bag and bundled the body up with a belt and chain. He placed the body in his van, which contained two concrete blocks to weight down the body in the river. In order to properly secure the victim’s body in the sleeping so it would remain submerged and hidden from the police, defendant had to make additional holes in the belt that helped truss up the body in the bag. He drove his van to a bridge over the Des Plaines River, but before he could discard the body, a police car pulled up. Defendant told the approaching officer that he was fixing a flat tire. When the officer left, defendant abandoned his original plans and drove to May-wood and there dumped the body in an alley.

Judy Baker testified that she moved in with defendant during the first week of July. A few days after this she met Herdenberg, who lived next door to defendant. For the next three weeks she saw Her-denberg every day and became his lover. She also stated that Herden-berg had been hospitalized for drug usage and she knew he took P.C.P. On August 3 defendant told her he was going to kill Herden-berg because he had been pimping or selling out defendant’s wife. She told defendant he was crazy. About a week later, she and defendant drove defendant’s van to New York. During this trip defendant allegedly told her that when they got back to Chicago he was going to shoot Herdenberg and throw his body in the river. A month later they returned to Cicero and she went to live with Bob Green, who was the father of her illegitimate child. A week after this she again moved in with defendant. Around September 21 Baker visited Herdenberg, but never mentioned defendant’s alleged plan. The most she did was to tell Herdenberg that defendant was crazy and to be careful.

On September 23 defendant told her he “had killed him.” Defendant said that he went to Herdenberg’s apartment and asked him for some money. The latter had only $25 and tried to give defendant his car. They then started fighting and defendant was cut by a knife as they wrestled around. During this time Herdenberg wound up on the floor, pinned under defendant. Defendant allegedly asked Herdenberg if he had any last words and then shot him. Defendant then cleaned up the apartment and around 3 a.m. disposed of the body. He told her that if caught by the police he would run or tell them he could not remember anything. She informed Bob Green about the killing.

William Ptack testified that he had been convicted of possession of a stolen vehicle and was currently charged with the theft of some silver. He could not make bond and was in jail, where he became defendant’s cellmate. Defendant stated that Herdenberg had been killed because he knew where a Nazi Academy was to be built. Defendant also stated he pulled a gun on Herdenberg, but the latter knocked it from defendant and picked up a knife. Defendant then took the knife from Herdenberg, who cut his hand attempting to retrieve the knife. Eventually Herdenberg retrieved the knife and stabbed defendant, at which time defendant shot him.

Ptack went to the State’s Attorney and told him about conversations he and defendant had. Later Ptack had his bond lowered to an amount he could afford. He also stated that as a result of his testimony against defendant the State’s Attorney would, during Ptack’s trial, inform the court that Ptack had been a crucial witness in defendant’s trial.

Defendant testified that on September 22 around 4:30 p.m. he went to Herdenberg’s apartment. They talked about the $85 defendant had loaned Herdenberg when he bailed him out of jail. Defendant also noticed at this time that Herdenberg was high on P.C.P. and was playing with a combat knife that he always kept around. When defendant got up to go, Herdenberg asked him to stay because he was bored and lonely. When defendant asked him if he was weird, Herden-berg picked up the knife, jumped at defendant and stabbed him on the right cheek. Herdenberg lunged again and a struggle ensued in the kitchen, during which defendant’s arm went through the wall. During this struggle, defendant knocked the knife to the floor and they both dived for it. Defendant got the knife first and held on while Herden-berg grabbed the blade in an attempt to retrieve the knife.

Defendant then poked Herdenberg in the stomach and chest with the knife and headed for the door. Before he reached the door, however, Herdenberg grabbed him from behind and put him in a choke-hold. Defendant poked Herdenberg a few times more and they both fell to the floor, with defendant landing on top. Defendant then pointed the knife at Herdenberg’s throat and told him to calm down. Herdenberg bucked his legs and threw defendant forward so that the knife speared Herdenberg’s neck. Defendant was able to pin him again and then threw the knife to the side. Both were bleeding and defendant offered to call an ambulance for Herdenberg. This was refused. Defendant then entered the bathroom and put a wet towel on his face. At the same time Herdenberg entered the living room with the knife, looked in the mirror and said, “Oh my God” over and over.

Suddenly Herdenberg said, “Steve, I’m going to kill you,” and lunged at defendant, cutting his scalp. Defendant then took a derringer from his pocket and shot Herdenberg once in the stomach. Defendant headed for the door, but was grabbed by Herdenberg, who turned him around, knocked the gun from his hand and threw him to the floor. As Herdenberg again approached, defendant grabbed his gun and shot Herdenberg fatally in the head.

Defendant stayed in the apartment until 3 a.m. He then panicked and, because he thought that no one would believe what happened, he cleaned up the apartment and took the body out to dispose of it. After an aborted attempt to throw the body in the river, he put it in an alley. He also threw away the knife, gun, bloody towels and clothes.

Defendant also testified that Ptack had told him he wanted to get out of prison and would do anything to achieve that goal.

Police Officer Zekas testified that he recovered blood swabs from 12 different locations in the apartment. He would have expected to find more blood if a big fight had occurred.

Mr. Imburgia, manager of the restaurant for which defendant delivered pizza, testified that defendant worked from 6 p.m. on September 22 to 2 a.m. on the 23d.

Other than defendant, there were no eyewitnesses to the killing. Defendant claims that he was not proved guilty of murder beyond a reasonable doubt because the testimony of Judith Baker and William Ptack was “suspect” since the former never informed the police about the murder when it would have been the natural thing to do and the latter, being in prison, had a motive to lie. This argument of defendant is merely an attack on the credibility of these two witnesses. The jury heard and saw them and was informed of all the facts which bore on their credibility. The jury chose to believe them and not defendant. The question of credibility is properly for the jury to resolve. People v. Warmack (1980), 83 Ill. 2d 112, 128, 413 N.E.2d 1254.

Defendant also argues that he was acting in self defense in killing Herdenberg. This defense is based solely on his own testimony. This involved a question of his credibility. By their verdict, the jury did not believe him. In light of the other extrinsic evidence, the State met its burden of proving beyond a reasonable doubt that defendant did not act in self defense. The evidence proves that defendant carried out the plan he had earlier told others he was going to do.

Defendant further argues that even if his actions were not justified, he was guilty of no more than voluntary manslaughter under sections 9 — 2(a)(1) and 9 — 2(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 2(a)(1), (b)). He claims that he killed Herdenberg while in a heated fight and that under section 9 — 2(a)(1) he was acting under a sudden and intense passion resulting from serious provocation and under section 9 — 2(b) he believed the circumstances to be such that if they existed they would justify the killing, but his belief was unreasonable. These arguments, too, depend upon his credibility. The extrinsic facts show otherwise. He shot Herdenberg twice at close range and slashed his throat. This, together with his previously announced plan to kill Herdenberg, refutes his claim of mutual heated combat.

The evidence in the record does not raise any reasonable doubt as to defendant’s guilt. The holding of the supreme court in People v. Owens (1976), 65 Ill. 2d 83, 357 N.E.2d 465, is applicable here:

“We find apposite here our statement in People v. McDonald, 62 Ill. 2d 448, 456, that ‘it is the function of the jury to pass upon a question of an accused’s guilt, and we will not reverse a conviction unless the evidence is so improbable as to justify a reasonable doubt of the accused’s guilt. (People v. Stringer, 52 Ill. 2d 564, 568; People v. Peto, 38 Ill. 2d 45, 49.) We cannot say the evidence in the record before us raises a reasonable doubt of the defendant’s guilt.’ ” 65 Ill. 2d 83, 90L

Defendant contends that the trial court, when sentencing him, conducted the hearing without regard to the objective of rehabilitating defendant and restoring him to useful citizenship and that, therefore, the 40-year sentence imposed was excessive. We disagree.

At the sentencing hearing, the trial court stated:

“The question before the court is a question of punishment. Never does it enter into my mind in such a situation as presents me at this time, rehabilitation. That is a false concept which has been proffered to the Court, rejected by this Court and shall be rejected in almost 99 per cent of the cases, because in 99 per cent of the cases it is a ridiculous fiction.
We are talking about punishment. That’s what we are talking about. *** ”

From this statement it is clear that the court had considered rehabilitation but had rejected it because of the circumstances of the killing. Nor can this court say that the 40-year term was excessive. It was within the proper range. (Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 5—3(c)(1), 1005— 8 — l(a)(1).) The trial court specifically rejected the imposition of an extended term.

In People v. Willingham (1982), 89 Ill. 2d 352, 364-65, 432 N.E.2d 861, the court said:

“A reviewing court may intervene only upon a showing that the trial court abused the sentencing discretion entrusted to it. (People v. Cox (1980), 82 Ill. 2d 268, 275; People v. Perruquet (1977), 68 Ill. 2d 149, 154.) The trial court is the appropriate forum to determine a suitable sentence, and the trial judge’s decisions with regard to sentencing must be accorded great deference and weight. (People v. La Pointe (1981), 88 Ill. 2d 482, 492-93; People v. Perruquet (1977), 68 Ill. 2d 149,154.)”

We cannot say that the trial court here abused its discretion. The conviction and sentence are affirmed.

Affirmed.

CAMPBELL, P. J., and McGLOON, J., concur.


author: JUSTICE O’CONNOR

text:
    EDWARD BEDORE et al., Plaintiffs-Appellants, v. McCULLOCH OIL CORPORATION et al., Defendants-Appellees.
    First District (1st Division)
    No. 81 — 0692
    Opinion filed August 9, 1982.

      Sommer & Barnard, of Indianapolis, Indiana, and Clausen, Miller, Gor-man, Caffrey & Witous, of Chicago (William C. Barnard, James E. Hughes, W. William Weeks, and James T. Ferrini, of counsel), for appellants.
    Thomas J. McDermott, Craig N. Hentschel, and Polly Horn, all of Kadi-son, Pfaelzer, Woodard, Quinn & Rossi, of Los Angeles, California, and Patrick W. O'Brien and Lee Ann Conti, both of Mayer, Brown & Platt, of Chicago, for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal of the dismissal of plaintiffs’ amended complaint pursuant to the doctrine of forum non conveniens. Plaintiffs are a group of 160 Illinois residents or former residents who purchased land in a proposed planned city known as Pueblo West, near Pueblo, Colorado. The numerous defendants are: McCulloch Oil Corporation; Mc-Culloch Properties, Inc.; McCulloch Properties Credit Corporation; Holly Development' Co., Inc.; Pratt Properties, Inc.; Western States Publishers, Inc.; Pacific Western Lands, Inc.; Lome Pratt Enterprises, Inc.; Arthur Hewitt d/b/a Ash Publications; and Teckla, Inc. Two defendants, Trico International, Inc., and Trico Colorado, Inc., were dismissed from the action by stipulation. Teckla, Inc., did not respond to plaintiffs’ amended complaint.

Defendants all appear to be related in many ways. Primarily it is alleged that defendants engaged in the promotion, sale and financing of the lots sold to plaintiffs. These lots were to be part of a planned community developed by defendants. Plaintiffs allege that this development has failed and seek relief on grounds of fraudulent sales, breach of contract, violations of Illinois security laws and the Interstate Land Sales Full Disclosure Act (15 U.S.C. sec. 1701 et seq. (1976)).

This action is related to identical suits filed in five other State courts in Iowa, Indiana, Massachusetts, Michigan and Wisconsin. Defendants filed similar motions to dismiss on the basis of forum non conveniens in those cases. During the pendency of this appeal, these motions have been rejected by the respective jurisdictions.

Defendants presented several grounds to the trial court for a dismissal based on the doctrine of forum non conveniens. Essentially these are: (1) Colorado is a more convenient forum than Hlinois for all the defendants and nonparty witnesses; (2) there is easy access of documents and records in Colorado; (3) Colorado courts would better understand and evaluate Colorado water law and related issues; and (4) a view of the Pueblo West area would be easier facilitated. The trial court granted defendants’ motion. In doing so the trial court was most concerned about the defense of the case and the tactical problems confronting defendants. The- trial court also appeared to be influenced by its belief that the case could be transferred to Colorado.

Plaintiffs appeal, contending that the trial court abused its discretion in dismissing this case. For the reasons stated below, we agree with this contention.

It is well settled that the doctrine of forum non conveniens is predicated upon fundamental fairness in the pursuit of justice and effective judicial administration. Whether dismissal of an action is warranted is within the discretion of the trial court to determine and such a decision will not be disturbed unless the facts demonstrate that the court abused its discretion. Unless the balance strongly favors the defendant, however, the plaintiff’s choice of forum should rarely be disturbed. People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 383 N.E.2d 977, cert. denied (1979), 441 U.S. 932, 60 L. Ed. 2d 660, 99 S. Ct. 2052; Stone Container Corp. v: Industrial Risk Insurers (1980), 91 Ill. App. 3d 807, 414 N.E.2d 1227.

Guidelines by which Illinois courts have considered the doctrine of forum non conveniens are found in the oft-cited landmark case Gulf Oil Corp v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839. These include: (1) the private interest of the litigant; (2) the relevant ease of access to sources of proof; (3) availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; (4) the possibility of a view of the premises, if appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. (330 U.S. 501, 508, 91 L. Ed. 1055, 1062, 67 S. Ct. 839, 843.) Pertinent factors of public interest are the congestion of litigation in the forum court, the interest in having local controversies decided at home and the advantage of having a court, familiar with the law to be applied, apply that law. Whitney v. Madden (1948), 400 Ill. 185, 79 N.E.2d 593, cert. de nied (1948), 335 U.S. 828, 93 L. Ed. 382, 69 S. Ct. 55; cf. Stone Container Corp. v. Industrial Risk Insurers (1980), 91 Ill. App. 3d 807, 414 N.E.2d 1227 (application of another forum’s.law is not alone dis-positive of the issue).

Plaintiffs contend that the trial court abused its discretion in granting defendants’ motion because they are or were Elinois residents who chose to bring this action in their home forum and because there are relevant connections between this forum and the litigation. Some of the relevant connections are: defendants’ agents and salespersons lived or stayed in Elinois while soliciting Elinois residents in their homes; sales promotion and advertising took place in Elinois newspapers; sales meetings conducted by defendants took place at various locations in Elinois; and defendants conducted further meetings to reassure plaintiffs that the Pueblo West project was viable. In light of the deference accorded to the choice of Illinois as the forum for litigation by Elinois residents and the relevant connections, plaintiffs believe there is a strong basis upon which the motion should have been denied, citing American Home Assurance Co. v. Northwest Industries, Inc. (1977), 50 Ill. App. 3d 807, 365 N.E.2d 956; Sears, Roebuck & Co. v. Continental Insurance Co. (1972), 9 Ill. App. 3d 287, 292 N.E.2d 75.

An examination of the record reveals insufficient factors to weight the balance strongly in favor of defendants so that plaintiffs’ choice of forum should be disturbed. Stone Container Co.; American Home Assurance Co.; Sears, Roebuck & Co.

Defendants contend strenuously that a view of the development is necessary for their defense. This was not a reason relied upon by the trial court in making its decision. The court specifically stated as much and noted that it would not be difficult for “the court” or even a jury to visit the site. We note, too, that the main issues in this case are the allegations of fraud in the sale of the lots to plaintiffs. A view would most likely be of secondary importance in light of the evidence relating to defendants’ sales techniques and promotional material.

Defendants argue that Colorado would provide ease of access to witnesses and documents. In support of this contention, affidavits were appended to their trial memorandum. These affidavits show: it is difficult to determine who will testify for defendants; witnesses will likely be “key executives and employees” who live in California, Arizona or Colorado; and expense and personal inconvenience would be lessened by trial in Colorado. As was noted during oral arguments, it seems rather incongruous for defendants to claim it is too expensive and inconvenient to defend themselves in Elinois against allegations of fraudulent activities by their agents and salespersons who came to Illinois soliciting business from Illinois residents. Also, defendants’ arguments apparently do not take into consideration the fact that travel to Colorado would also be expensive and inconvenient for the Illinois plaintiffs testifying during the trial. We note, too, that defendants’ witnesses would have to be inconvenienced by travel to Colorado if that were the chosen forum.

Defendants have not identified what records located in various foreign jurisdictions are needed for their defense. Neither was the relevancy of these records established in the record before us. It appears that the corporate headquarters of the remaining defendants are all located outside of Colorado, defendants’ choice of forum. From the standpoint of expense, the transportation of records would be a factor, regardless of the trial location. We do not believe this factor significantly outweighs plaintiffs’ choice of forum.

Defendants assert the dismissal was proper because Colorado law is applicable to the issues raised by the complaint. They argue that plaintiffs’ allegations center around the availability of water or the lack thereof. Since Colorado law relating to water rights and usage are complex, it is argued, there is a greater likelihood of a fair trial in the Colorado courts. Defendants state they “will need to offer proof that there is water available,” that it is adequate to serve the needs of the development and that the cost is reasonable.

The crux of this case is the allegation of fraud made in the complaint. Testimony along the lines suggested by defendants will be necessary for their defense. We are sure that defendants, as well as plaintiffs, will present expert testimony relating to the issue of water. We do not think that defendants seriously believe the issues to be too complex for Illinois courts or that a fair trial cannot be had by the parties. Even if Colorado law were to be applied, in light of the other factors and relevant connections with Illinois, this issue cannot be deemed dispositive. Stone Container Corp.; Sears, Roebuck & Co..

Defendants finally argue that the dismissal better serves the public interest by relieving the congested Cook County docket of the administrative difficulties of this case. They also point out that judicial economy could better be served by consolidation of this case in Colorado with those pending in other jurisdictions. As noted above, this would be impossible because similar motions to dismiss have been rejected by the trial courts in those jurisdictions.

Despite the addition of one more case, with 160 plaintiffs, we think the State of Illinois and its courts have a very definite interest in the trial of this action in Illinois courts. As noted above, defendants sent their employees to Hlinois seeking business. While here, they presumably could avail themselves of the safety of Hlinois laws and courts. Those same laws and courts should not be denied to Hlinois residents seeking redress against defendants for alleged fraudulent practices.

From the foregoing, it is apparent plaintiffs have sufficiently established substantial and relevant connections between the litigation and Hli-nois. No factors strongly favor the removal of this case contrary to plaintiffs’ choice. Accordingly, we find the trial court’s order of dismissal must be reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

CAMPBELL, P. J., and GOLDBERG, J., concur.


author: JUSTICE PERLIN

text:
    CONTINENTAL ILLINOIS LEASING CORPORATION et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    First District (2nd Division)
    No. 81 — 1152
    Opinion filed August 10, 1982.
    Rehearing denied September 7, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield (Paul P. Biebel, Jr., Patricia Rosen, and Ronald P. Stake, Assistant Attorneys General, of counsel), for appellant.
    Morgan, Lanoff, Denniston & Madigan, Ltd., of Chicago (Edmund Gronkiewicz and James E. McFarland, of counsel), for appellees.
   JUSTICE PERLIN

delivered the opinion of the court:

Following a hearing before the Illinois Department of Revenue (Department), Continental Illinois Leasing Corporation (Continental) received a final assessment for the period from July 1, 1974, through February 28, 1977, of $195,859.17, including penalty and interest allegedly due under the Illinois Use Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 439.1 et seq.) (Use Tax Act). Continental thereafter filed an administrative review action in the circuit court of Cook County, which court reversed the Department’s decision. The Department appeals.

The State of Illinois imposes a tax upon the privilege of using, in this State, tangible personal property purchased at retail from a retailer. (Ill. Rev. Stat. 1979, ch. 120, par. 439.2.) The tax applies whether the property is purchased in Illinois or elsewhere (Turner v. Wright (1957), 11 Ill. 2d 161, 142 N.E.2d 84.) The purchaser incurs the primary liability for payment of the tax. (Klein Town Builders, Inc. v. Department of Revenue (1966), 36 Ill. 2d 301, 222 N.E.2d 482.) The tax does not apply to property purchased and used by an institution organized or operated exclusively for charitable purposes. Nor does the tax apply to the use of tangible personal property “purchased from an isolated or occasional seller who is not engaged in the business of selling such tangible personal property.” (Use Tax Rules 3(6) and 3(2).) The issue presented for our review is whether Continental purchased certain hospital equipment from a retailer in a sale at retail so as to incur use tax liability.

St. Mary of Nazareth Hospital Center (hospital), an Illinois not-for-profit corporation which operates St. Mary of Nazareth Hospital, is the true plaintiff-in-interest in the instant case. Although the use tax was assessed against Continental, the hospital under its contract with Continental is responsible for payment of the tax.

In 1972 the hospital began construction of a new facility. As part of the hospital’s financial plan for equipping and furnishing the new facility, the hospital entered into a “Master Lease Agreement” with Continental on October 20, 1974. This agreement was subsequently amended when on December 16, 1974, Continental and the hospital executed a document entitled “Amended and Restated Master Lease.” (Amended lease.)

Under the amended lease, Continental agreed to pay the “acquisition cost” of $3,000,000 worth of “high technology” radiology and radioisotope equipment which was to be selected by the hospital. The term of the lease was to “commence on the date of delivery” of the equipment to the hospital. The lease also provided that:

“10(a) The equipment shall be the exclusive property of Lessor [Continental] and Lessee [hospital] shall have no rights therein except the right to use it so long as Lessee is not in default hereunder.
* * *
10(e) Lessee shall place and maintain on each unit of equipment a notice conspicuously disclosing Lessor’s ownership.”

In acquiring the equipment under the amended lease, the hospital negotiated directly with the manufacturers regarding the type of equipment to be purchased and its purchase price. The equipment was delivered to and accepted by the hospital. The hospital agreed to bear the obligation of all taxes imposed as an incident to the equipment purchases. Continental had the right, for tax purposes, to take the investment tax credit and depreciation on the equipment.

The hospital issued a total of 44 purchase orders directly to various manufacturers for all of the equipment ultimately accepted by it under the lease. The purchase orders were issued between September 10, 1973, and May 13, 1975. Subsequent to the execution of the amended lease, the hospital assigned 21 of these purchase orders to Continental. Each assignment provides:

“The undersigned (‘Assignor’) hereby assigns to Continental Illinois Leasing Corporation (‘Assignee’) all of the Assignor’s right, title and interest in and to the Purchase Orders ***.”

The record discloses that Continental made all payments directly to the manufacturers for the full amount of the “acquisition cost” of the equipment. The only payments of record which the hospital made were rental payments to Continental under the amended lease. Although the record does not contain original bills of sale or invoices, it does show that the hospital issued a “Confirmatory Bill of Sale” dated January 1977 to Continental which provided:

“*** -n consideration of one dollar and other good and valuable consideration *** does hereby confirm *** that immediately prior to or simultaneously with the commencement of the term of lease *** dated December 16, 1974 *** [the hospital] sold and assigned to the buyer [Continental] all of its right, title and interest *** to the equipment.”

Continental’s general ledger indicated that Continental had purchased the equipment from the hospital.

Following an audit, the Department issued to Continental a notice of tax liability based on the determination by the Department’s auditor that Continental had purchased the equipment directly from the manufacturers, not from the hospital. Continental protested and requested a hearing, which was granted.

At the Department hearing on August 22, 1978, witnesses for Continental and the hospital testified that the hospital actually purchased the equipment from the retailers, sold it to Continental and then leased it back. According to Richard Pietrzak, the hospital’s vice-president of financial management, the payments made by Continental were merely “interim financing.” He explained that the equipment delivered to the hospital under the terms of the amended lease was not “accepted” by the hospital until it had been installed, tested and approved. Because of the nature of the equipment, there was a substantial delay between the delivery of the equipment and its final approval by the hospital. The manufacturers, however, required a size-able down payment upon delivery. Consequently, the agreement between the hospital and Continental obligated Continental to make the down payment to the manufacturers upon their delivery of the equipment to the hospital. Thus, according to Pietrzak, Continental financed the equipment’s purchase during the interim period between its delivery and ultimate approval.

The hospital argued that the transactions which led to its acquisition of equipment under the amended lease were exempt from use tax. The hospital contended that its purchase of the equipment from the manufacturers was exempt under the charitable institution exemption and that the subsequent sale by the hospital to Continental was exempt as an occasional sale. The Department relied on the amended lease agreement, the purchase order assignments and the fact that Continental made all payments for the equipment directly to the manufacturers to argue that Continental had purchased the equipment from the manufacturers in a sale at retail. In the alternative, the Department argued that even if it were determined that the hospital had purchased the equipment direct from the manufacturers, the hospital’s subsequent sale of such equipment to Continental was not exempt as an occasional sale. Thus, Continental would have incurred a use tax liability when it purchased the equipment from the hospital.

The hearing referee held that the hospital never acquired title to the equipment and that Continental had purchased it directly from the manufacturers. The referee found that the equipment was “future goods,” i.e., not yet manufactured at the time the hospital issued its purchase orders. Under section 2 — 401(2) of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 401(2)), title to such goods passes at the time and place at which the seller completes delivery of the goods. The referee also found that delivery of the equipment occurred subsequent to the execution of the amended lease, December 16, 1974. Since the amended lease commenced upon delivery to the hospital and under such lease Continental exercised all powers of ownership, the referee concluded that Continental acquired title direct from the manufacturers upon delivery of the equipment to the hospital. The hearing referee also ruled that even if the hospital had taken title directly from the manufacturers, the hospital’s subsequent sale to Continental would have been a sale at retail and not exempt as an occasional sale.

The trial court reversed the ruling of the Department, noting that one of the purchase orders issued by the hospital prior to the execution of the lease indicated that delivery was also to precede the lease date. Based on this single purchase order, the trial court concluded that the equipment had actually been delivered to the hospital prior to the execution of the lease. Accordingly, the trial court agreed that under section 2 — 401(2) the hospital acquired title direct from the manufacturers and then passed title to Continental in a subsequent sale. The trial court also found that the hospital’s sale to Continental was not a sale at retail and hence was exempt from use tax.

Upon appeal, the Department contends that the evidence presented at the Department hearing established that Continental incurred liability for the use tax whether the company purchased the equipment from the manufacturers or from the hospital.

Use Tax Rule 2(3) defines a purchaser as “*** anyone who, through a sale at retail, acquires the ownership of or title to, tangible personal property for a valuable consideration.” To determine when, for taxation purposes, ownership of or title to property is transferred, Illinois courts have applied the title passing tests of the Uniform Commercial Code. (See O’Brien v. Isaacs (1965), 32 Ill. 2d 105, 203 N.E.2d 890; United Technical Corp. v. Department of Revenue (1982), 107 Ill. App. 3d 1062, 438 N.E.2d 535.) Section 2-401(2) of the Uniform Commercial Code provides that “identification to the contract,” a necessary prerequisite to the passing of title, occurs in the case of future goods when goods are shipped, marked, or otherwise set aside, and that unless otherwise explicitly agreed upon, title passes at the time and place at which the seller completes his performance with respect to the delivery of the goods. In the instant case the record shows no explicit agreement regarding the passing of title nor is there any indication that the equipment was “identified to the contract” prior to its delivery. Accordingly, we must conclude that title to the equipment passed from the manufacturers upon its delivery to the hospital. The issue to be determined, therefore, is to whom title passed.

In our opinion the evidence of record does not support the trial court’s finding that the equipment had actually been delivered to the hospital prior to December 16, 1974, the date the amended lease was executed. The scheduled delivery dates noted on the purchase order by the trial court are December 31, 1973, and May 31, 1974. There is nothing in the record to indicate, however, that delivery was actually made on either day. Indeed, the record shows that delivery was actually made subsequent to December 16, 1974. This same purchase order provided that 80% of the purchase price was due upon delivery of the equipment to the hospital. Continental made this payment to the manufacturers. Although the precise date of this payment cannot be determined from the record before us, it is clear that Continental was not obligated to make payments to the manufacturers for equipment delivered to the hospital prior to the execution of the amended lease. Consequently, it would appear from the fact that Continental made such payments that delivery to the hospital occurred after the execution of the amended lease.

As heretofore noted, the amended lease provided that upon delivery the equipment became “the exclusive property of [Continental] and [the hospital] had no rights therein except the right to use it.” From the date of its delivery Continental exercised the powers incident to ownership of the equipment. The only rights the hospital acquired in the equipment were derived from the lease. Given these facts, we hold that for purposes of the use tax Continental acquired title to and ownership of the equipment from the manufacturers and that the hospital never took title. There is no dispute but that the sale by the manufacturers, whether to Continental or to the hospital, was a sale at retail7

Upon delivery Continental became the owner and lessor of the equipment. The law is clear that the owner-lessor of property is the “user” of the property within the meaning of the Use Tax Act. (Telco Leasing, Inc. v. Allphin (1976), 63 Ill. 2d 305, 347 N.E.2d 729; Philco Corp. v. Department of Revenue (1968), 40 Ill. 2d 312, 239 N.E.2d 805; International Business Machines Corp. v. Department of Revenue (1962), 25 Ill. 2d 503, 185 N.E.2d 257.) In Telco a company engaged in the business of leasing medical equipment to hospitals, laboratories and other research institutions protested a use tax delinquency which had been assessed against it. The company argued that it merely leased equipment to the hospital and that the hospital was the actual user of the equipment. The court rejected this argument, stating that “ ‘[a] mere lessee does not exercise over the property any rights or powers incident to the ownership of the property.’ ” (63 Ill. 2d 305, 310.) The court noted that the term “use” in its statutory sense encompasses the utilization of property for profit-making purposes by means of leasing. 63 Ill. 2d 305, 310.

In Telco the hospital issued its purchase orders to the leasing company which then purchased the equipment from the manufacturers. The equipment was delivered to and accepted by the hospital so that the leasing company never actually took physical possession. Continental argues that Telco is distinguishable from the instant case because in Telco the hospital issued its purchase orders to the leasing company while here the hospital issued them to the manufacturers. Given the fact, however, that in both Telco and the instant case the leasing companies purchased the equipment from the manufacturers and exercised dominion over such equipment, we do not believe that the difference in the method of issuing purchase orders is significant. In accordance with Telco we hold that Continental as owner-lessor of the equipment is liable for the use tax delinquency assessed against it.

Since we have concluded that Continental acquired title to the equipment from the manufacturers, we need not consider the question whether the hospital’s purported sale of such equipment to Continental was a taxable transaction.

For the foregoing reasons we reverse the judgment of the trial court.

Reversed.

STAMOS, P. J., and HARTMAN, J., concur.