author: Mr. PRESIDING JUSTICE BURMAN

text:
    Milton Rosenstein et al., Plaintiffs-Appellees, v. The Chicago Transit Authority et al., Defendants-Appellants.
    (No. 58312:
    First District (4th Division) —
    June 13, 1973.

      James G. O’Donohue and Jerome F. Dixon, both of Chicago, for appellants.
    Reibman and Hoffman, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

This is a personal injury action brought by Milton Rosenstein and his son, Howard, against the Chicago Transit Authority and its driver, Richard Trefny. The case was tried before the court without a jury, resulting in a judgment for $36,000 in favor of Milton Rosenstein (hereinafter referred to as plaintiff) and $100 in favor of Howard Rosenstein, his nine year old son who was a passenger in the car. The defendants appeal.

The sole contention presented for review is that the damagés awarded to plaintiff were excessive.

The record discloses that on July 6, 1969, at about 8.T5 P.M., plaintiff’s car was struck while he was stopped at a red light at the intersection of Peterson and Maplewood Avenues. The bus driver, defendant Richard Trefny, testified that the bus was about 90 feet away from the Rosenstein car when he first applied the brakes. He stated that the pavement was slippery. When he hit the brakes, the bus turned sideways and he lost control of it momentarily. It straightened out just about the time it collided with plaintiff’s car. Trefny said that the Rosenstein car was struck hard enough to knock it into the car ahead of it. He also testified that he did not use the emergency brake or sound the horn prior to hitting plaintiff’s car. The bffl for repairs to the Rosenstein automobüe was $385.80.

Plaintiff, Mffton Rosenstein, testified that he was 49 years old and had been employed by the police department for 25 years. His present rank is lieutenant. Plaintiff testified that immediately after the accident, he noticed that the lower part of his back and the upper part of his back near the neck hurt. The next day he went to see Dr. Clarence A. Peckler, who gave him a heat treatment. The following day, on the advice of Dr. Peckler, plaintiff entered Bethesda Hospital, where he stayed for 11 days. The lower part of his body was put in traction and he had a surgical collar around his neck. He was also given physical therapy. Plaintiff described the traction as a pulley type contraption on his legs. He stated that it was very uncomfortable to sleep in the traction device. Plaintiff also testified that he experienced sharp pain from the hip to the lower thigh in the left leg which prevented him from walking. He also experienced pain in the neck.

Plaintiff testified further that he continued to have the same pains when he was discharged from Bethesda Hospital although he was able to walk a little bit better. He continued to see the doctor for several months after his discharge from the hospital, receiving heat treatments on his back several times a week. In February, 1970, plaintiff again saw Dr. Peckler because his condition had worsened. He had tingling pains in his left hand, his shoulder and neck hurt and he had severe headaches. Dr. Peckler gave him more heat treatments. On February 21, 1970, plaintiff entered Edgewater Hospital, where he stayed for about three weeks. He was in severe pain and in traction for the better part of that time. He continued seeing Dr. Peckler for a couple of months after he was discharged from the hospital. At the suggestion of Dr. Peckler, plaintiff also saw Dr. Milton Tinsley, a specialist in neurological surgery.

Plaintiff further testified that he continued to have the same pains he had when he left the hospital. He said he couldn’t lift his head and had pains in the arm, neck and head. Plaintiff stated that several times a week, he had sharp pain from the lower back to the left thigh which prevented him from walking. He also said that there were many things which he could not do because of his condition.

The only medical witnesses who testified as to plaintiff’s physical condition were Drs. Peckler and Tinsley. Dr. Peckler stated that when he first saw the plaintiff, he had neck and back pains, and couldn’t move the neck or back or walk without pain. His examination revealed a tenderness and spasm of aU the neck muscles. Plaintiff had a great deal of pain in moving the neck and therefore the range of motion was restricted. In the lower back, he had tenderness over the fourth and fifth lumbar vertebra. The muscles alongside the vertebra on each side were tender and spastic. Plaintiff held his body in a stiff manner and he walked very slowly in order to decrease his pain symptoms. Dr. Peckler diagnosed the plaintiffs injury as a severe whiplash neck type injury with a strain in the neck and in the lower back.

Dr. Milton Tinsley testified that he examined plaintiff in May, 1970. Plaintiff complained of pain in the neck, arm, hip and leg. Dr. Tinsley took a general neurological examination of plaintiff and he examined certain of the X-rays taken at Edgewater Hospital in February, 1970. His diagnosis was “osteoarthritis with spur formation involving C5 nerve.” His opinion was that the spur was in existence prior to the accident. He recommended that plaintiff have a myelography and if the myelography confirmed his diagnosis that the nerve be decompressed by a laminatomy. Dr. Tinsley testified that there is a certain minimal risk of discomfort and possibly other complications in a myelogram. He stated that there is always a risk in a laminatomy of hemorrhage, infection and anesthetic involvement.

Dr. Tinsley further testified that if a laminatomy were performed, plaintiff would be hospitalized for two to two and a half weeks. The cost of a hospital stay would be about $100 a day, plus additional charges for the operating room, X-rays and medication of about $1000. The surgical fee for the myelogram would be about $100 and about $750 for the laminatomy. Plaintiff would be incapacitated for six weeks to two months following the surgery. In answer to a hypothetical question, Dr. Tinsley stated that in his opinion plaintiff’s pre-existing condition was aggravated as a result of the accident. He further testified that the condition would be permanent and would cause pain if no surgery were performed.

The defendants strongly urge that the trial court misconceived the law of damages resulting in an award contrary to law and requiring a reversal. This argument is based on the fact that after the trial judge assessed the damages he said,

“In the event that it becomes interesting to anyone as to how I arrived at the particular amount of the verdict, I took all the specials to date, including and also the projected specials, and multiplied by three and added three thousand dollars for the pain and suffering, which I have no doubt the plaintiff has been and will experience until he submits to this surgery.”

Defendants’ counsel, in his brief, comments that it is a fact of common knowledge among lawyers that personal injury liabilities are paid by settlements where liability is either clear or close, based upon a rule of thumb of three times the special damages. We subscribe to the fact that this procedure in settling tort matters is generally practiced in Cook County. We hasten to point out, however, that this litigation was not amicably settled, but proceeded to a contested trial. We must therefore determine whether the award of damages was excessive without regard to the conclusionary remarks of the trial judge.

It has been repeatedly held that the goal of an award of damages is fair and reasonable compensation. (Swearinger v. Klinger, 91 Ill.App.2d 251, 256, 234 N.E.2d 61, 63.) The record shows and the parties agreed that Milton Rósenstein had a total of $5700 in actual damages consisting of medical bills, hospital bills and lost time from work. The future expenses, should plaintiff submit to an operation, were projected as a hospital bill of approximately $2500, surgical fees of $850 and about $1800 in lost wages totalling $5150. Adding this figure to the sum of $5700, plaintiffs actual and future damages total $10,850.

The defendants argue that it is inconceivable that plaintiff would be entitled to an award for a future operation which he has refused to have. We do not find this argument persuasive. When plaintiff was asked why he had not submitted to an operation, he replied,

“First, no money. I didn’t have the money to pay for something like that, or another reason was I saw too many cases of permanent damage, crippling of a person that where a knife may have slipped a little bit and I am familiar with some of the people that that happened to. I’m scared of an operation unless it’s absolutely, unless I’m flat on my back, and I can’t do anything else.”

The plaintiff testified to extensive pain and suffering as a result of his present condition. Dr. Tinsley’s statement that in his opinion, if no surgery were performed, the condition would be permanent, was un-contradicted. Under these circumstances, it seems reasonable to assume that the plaintiff will eventually submit to surgery. If he does, he will not be able to recover additional damages in any subsequent lawsuit against defendants. The plaintiff can recover for future foreseeable damages only in the instant proceeding. For this reason, we think the trial judge did not err in including the expense of a foreseeable future operation in calculating plaintiff’s special damages. .

Defendants also maintain that the trial court should have considered the fact that plaintiff’s condition could have been corrected and his damages thereby mitigated had he agreed to surgery. We disagree. In Rockford Clutch Division v. Industrial Com., 34 Ill.2d 240, 215 N.E.2d 209, the claimant refused the employer’s offer to pay the cost of surgery similar to the operation needed by this plaintiff. The supreme court rejected the employer’s argument that the employee could not elaim total disability because he refused to help himself by having surgery. Justice Schaefer, in speaking for the court stated:

“The Workmen’s Compensation Act is not designed simply to protect employees who follow the best medical opinion of the day. It is designed for employees with divergent personalities, belief, and fears. If a claimant’s response to an offer of treatment is within the bounds of reason, his freedom of choice should be preserved even when an operation might mitigate the employer’s damages.” 34 Ill.2d at 247-8, 215 N.E.2d at 212.

To the same effect is Florczak v. Industrial Com., 381 Ill. 120, 44 N.E.2d 836.

There is no contention that the amount of the judgment was so excessive as to indicate passion and prejudice by the court. The damages assessed must be examined in the light of the particular injury involved. (Lau v. West Towns Bus Co., 16 Ill.2d 442, 453, 158 N.E.2d 63, 69.) In Lau, the plaintiff, a woman of 50, sustained a fracture of the right femur requiring surgery. She was unable to walk without crutches for almost three years and had a stiffening of the right hip joint and knee. Her condition was progressive and permanent. She had incurred special damages of $1500 and there was testimony that she would have to submit to an arthroplasty to separate the head of the femur from the acetabulum. The Supreme Court in affirming a judgment in the amount of $75,000, commented that although the award was large in comparison to plaintiff’s actual expenses, “we cannot limit compensable damages for pain and suffering to a set percentage of medical, hospital and kindred expenses.” 16 Ill.2d at 453, 158 N.E.2d at 69.

In the instant case, the plaintiff suffered a serious disabffity as a result of defendants’ negligence. He underwent two periods of hospitalization and treatment and incurred substantial medical biUs. In addition, he has experienced extensive pain and suffering and will continue to do so. He has difficulty in walking and is prevented from engaging in many of his normal activities. The uncontradicted testimony was that this condition is permanent unless the plaintiff agrees to undergo surgery. Under these circumstances, we cannot say that the judgment for the amount of $36,000 awarded to Milton Rosenstein by the trial court was so excessive as to be against the manifest weight of the evidence.

The judgment of the circuit court is therefore affirmed.

Affirmed.

ADESKO and DIERINGER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. New Melrose Fireworks Display Company, Defendant-Appellee.
    (No. 73-217;
    Second District —
    July 10, 1973.
    Wüliam J. Cowlin, State’s Attorney, of Woodstock, (James M. Boback, Assistant State’s Attorney, of counsel,) for the People.
    Simon Stickgold, of Woodstock, for appeHee.
   PER CURIAM:

On June 14, 1973, the plaintiff filed a petition for confiscation and destruction of certain fireworks owned by defendant, the New Melrose Fireworks Display Company, and valued in excess of $100,000. Upon motion, the trial court entered a final order dismissing plaintiffs petition, from which decision plaintiff appeals. We granted the joint motion of the parties to waive abstracts or excerpts and to advance the cause for oral argument as an emergency matter to be decided prior to July 4th. We have affirmed the judgment below specifying that a written opinion would foHow.

The petition was filed pursuant to the provisions of section 4 of “An Act to prohibit the sale, offering or exposing for sale of fireworks; defining fireworks and to regulate the manner of using fireworks, and to provide penalties for the violation of the provisions of the Act.” (Ill. Rev. Stat. 1971, ch. 127%, par. 130.) The petition is based on violation by defendant of section 2 of the Act (Ill. Rev. Stat. 1971, ch. 127%, par. 128), which prohibits the use or explosion of fireworks without a public display permit.

No evidence was taken in the proceedings below, but the parties have stipulated that defendant was in possession of a large quantity of fireworks which were seized, and that defendant has exploded fireworks on the premises of its plant for testing purposes without a public display permit. Plaintiff has also acknowledged that defendant is duly certificated by the State of Illinois to engage in the manufacture of fireworks.

The Act upon which the petition is based (Ill. Rev. Stat. 1971, ch. 127%, pars. 127 — 131), is designed, as the title indicates, to prohibit and regulate the sale and use of fireworks. Standing alone, a literal application of section 2 (Ill. Rev. Stat. 1971, ch. 127%, par. 128) under the facts stipulated would find defendant in violation of its terms for testing its product. However, as it relates to manufacturers of fireworks, the Act under which the State seeks confiscation should not be so construed.

. Pertinent is the Fireworks Regulation Act (Ill. Rev. Stat. 1971, ch. 127%, pars. 101 — 126), which, as its title indicates, relates to the manufacture, possession, storage, transportation, sale and use of fireworks. Under its provisions fireworks plants are certificated and specifically regulated. Nowhere directly mentioned is a procedure by which fireworks manufacturers may test their product. However, section 5 of the Fireworks Regulation Act (Ill. Rev. Stat. 1971, ch. 127%, par. 105) provides:

“No fireworks shall be discharged, ignited or exploded at any point in the State within 600 feet of any hospital, asylum or infirmary.”

It is inconceivable to us that the legislature intended to permit the manufacture of fireworks in this State without also permitting the manufacturer, for reasons of safety, to test fireworks it produces. We therefore hold that section 5 above cited impliedly authorizes a manufacturer of fireworks to test its fireworks, provided it does not discharge, ignite or explode fireworks within 600 feet of any hospital, asylum or infirmary; and provided that the other provisions of the Act are complied with, including any applicable rules and regulations adopted by the Department of Law Enforcement.

We further hold that section 2 of the Act prohibiting the sale and regulating the use of fireworks (Ill. Rev. Stat. 1971, ch. 127%, par. 128), in so far as it applies to manufacturers of fireworks, should be read ■in pari materia with section 5 of the Act relating to the manufacture, possession, storage, transportation, sale and use of fireworks (Ill. Rev. Stat. 1971, ch. 127%, par. 105), so that defendant’s explosion of fireworks for testing purposes as authorized by the latter provision should not be deemed to constitute a violation under section 2. (See People ex rel. Killeen v. Kankakee School Dist. (1971), 48 Ill.2d 419, 422-423.) There being no violation, plaintiffs petition for confiscation and destruction was properly dismissed. We therefore affirm the judgment of the trial court.

Judgment affirmed.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Dalton et al., Defendants-Appellants.
    (No. 55828;
    First District (2nd Division) —
    June 19, 1973.
    Opinion by Mr. JUSTICE LEIGHTON.
    Gerald W. Getty, Public Defender, of Chicago, (Saul H. Brauner and James J. Doherty, Assistant Public Defenders, of counsel,) for appellants.
    Edward V. Hanrahan, State’s- Attorney, of Chicago, (Elmer C. Kis-sane, Assistant State’s Attorney, of counsel,) for the People.


author: JUSTICE VAN DEUSEN

text:
    JUDITH THOMPSON, Plaintiff-Appellee, v. BOARD OF REVIEW, ILLINOIS DEPARTMENT OF LABOR, et al., Defendants-Appellants.
    Second District
    No. 82—855
    Opinion filed December 12, 1983.

      NASH, J., dissenting.
    Neil F. Hartigan, Attorney General, of Springfield (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellants.
    David Wolowitz, of Prairie State Legal Services, of Geneva, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Defendant, Board of Review, Illinois Department of Labor (Board) determined that plaintiff, Judith L. Thompson, was ineligible to receive Illinois unemployment insurance benefits from May 25, 1980, through August 2, 1980, because she had failed to apply for available suitable work when so directed by the State employment service. On review under the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.), the trial court found the Board’s decision to be against the manifest weight of the evidence and reversed that portion of the Board’s decision which denied plaintiff benefits during the period from May 25, 1980, through August 2, 1980, and which permitted recoupment of benefits paid to plaintiff during that period. The Illinois Department of Labor has appealed, contending that the trial court erred in finding its administrative decision to be against the manifest weight of the evidence.

Section 603 of the Unemployment Insurance Act (Ill. Rev. Stat. 1981, ch. 48, par. 433) provides in pertinent part “[a]n individual shall be ineligible for benefits if he has failed, without good cause *** to apply for available, suitable work, when so directed by the employment office or the Director ***” (Emphasis added.)

The single and narrow issue presented on this appeal is whether plaintiff had good cause for not applying for work as directed by the State Job Service. No issue is raised concerning the suitability or availability of the work.

On May 27, 1980, the State Job Service referred plaintiff to a possible job in West Chicago. Plaintiff lived in Carpentersville. Plaintiff’s previous employment, which terminated May 18, 1980, had been with Pheasant Run, a resort motel located in St. Charles. Pheasant Run was 22 miles from plaintiff’s home. Amco Containers, the West Chicago employer, was an additional four to five miles away. Plaintiff had worked in room service at Pheasant Run, earning $2.65 per hour plus “excellent” tips. The job opening at Amco was for a utility person, with wages of $4.03 per hour. Plaintiff, after notifying Job Service, did not go to apply for the job at Amco as she did not have money to buy gas for the trip to West Chicago.

We turn first to the question of what constitutes good cause under section 603 of the Unemployment Insurance Act. In Keystone Steel & Wire Division, Keystone Consolidated Industries v. Department of Labor (1976), 37 Ill. App. 3d 704, the appellate court, in considering the contention that claimants voluntarily left work without good cause contrary to section 603 of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 433), found that a substantial reduction in wages can be “good cause” for leaving employment, depending upon the attendant circumstances. (37 Ill. App. 3d 704, 706-07.) While we have not found any other Illinois cases on point, good cause has been described in cases from other States. Good cause for refusing work must involve circumstances which are real, substantial, and reasonable, not arbitrary, immaterial, or capricious. (Meyer v. Skyline Mobile Homes (1979), 99 Idaho 754, 589 P.2d 89; Bentz v. Unemployment Compensation Board of Review (1959), 190 Pa. Super. 582, 155 A.2d 461.) Good cause may not, however, be predicated on mere inconvenience. (Meyer v. Skyline Mobile Homes (1979), 99 Idaho 754, 589 P.2d 89.) An important consideration is whether the claimant’s behavior manifests good faith consistent with a general desire to be employed. (Ennis v. Pennsylvania Unemployment Compensation Board of Review (1975), 18 Pa. Commw. 344, 336 A.2d 438; see In re Watson (1968), 273 N.C. 629, 161 S.E.2d 1.) Good cause should not be analyzed in purely subjective and personal terms which are unique to the claimant, but must be considered in light of a standard of reasonableness for the average person. (Meyer v. Skyline Mobile Homes (1979), 99 Idaho 754, 589 P.2d 89.) However, if a reasonable person would view the circumstances involved as being real, substantial, and compelling, purely personal factors may constitute good cause. (99 Idaho 754, 589 P.2d 89; see Wallace v. Bureau of Unemployment Compensation (Ohio C.P. 1959), 81 Ohio Abs. 495, 160 N.E.2d 580.) Some courts have noted that, to constitute good cause, the reason for refusal must be one which pertains to the job itself or, if a personal factor, the reason must be of a temporary and emergency character. Swanson v. Minneapolis-Honeywell Regulator Co. (1953), 240 Minn. 449, 61 N.W.2d 526; see Meyer v. Skyline Mobile Homes (1979), 99 Idaho 754, 589 P.2d 89.

On the other hand, good cause may not be viewed in such a restrictive manner in Illinois, where the statute does not require that good cause be a reason connected with the employer, and where it may be based on personal or domestic considerations. See Conlon v. Director of Division of Employment Security (Mass. 1980), 413 N.E.2d 727; In re Watson (1968), 273 N.C. 629, 161 S.E.2d 1; see Ill. Rev. Stat. 1981, ch. 48, par. 433.

The Department of Labor, in its Manual of Benefit Precedent Decisions, has noted that good cause for refusing work is not confined to causes directly attributable to the employment or the employing unit, but may be found in the claimant’s personal circumstances or the unsuitability of the particular job for the individual claimant. (M.B.P.D.T. No. 157, R.W. 210.05 (Jan. 31, 1979).) Thus, according to the Department’s interpretation of the statute, good cause may be found in the claimant’s domestic circumstances, health, and prospects for other work as well as in the type of work offered, its wages, hours, and location. (M.B.P.D.T. No. 157, R.W. 210.05 (Jan. 31, 1979).) Because application for employment and acceptance of a job offer involve different levels of commitment of time and resources, the facts which constitute good cause could differ in each situation. However, the basic principles as to what constitutes good cause appear equally applicable in either situation. (See Palucci v. Department of Employment Security (1977), 135 Vt. 156, 376 A.2d 14.) In examining the Thompson case, the Board applied as a standard that whether an individual has good cause for failing to apply for work as directed should be judged by the reasonableness of his actions in light of the circumstances which exist in his particular case. We agree that such standard is proper.

Once the legal standard of “good cause” is established, the determination of what particular conduct meets that standard is ordinarily a factual issue. In an administrative hearing such as the present one, the claimant has the burden of proof that she had good cause for not applying for work as directed. (See Brown v. Board of Review (1972), 8 Ill. App. 3d 19, 23.) Agency findings on questions of fact are prima facie true and correct, and they cannot be disturbed by this court nor a trial court unless they are against the manifest weight of the evidence. (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 110.) Courts will not reweigh the evidence adduced at an agency hearing; their review is restricted to making an assessment of whether the agency’s final decision was just and reasonable in light of the evidence presented. (Davern v. Civil Service Com. (1970), 47 Ill. 2d 469, 471-72, cert, denied (1971), 403 U.S. 918, 29 L. Ed. 2d 695, 91 S. Ct. 2229.) Where a conclusion opposite to that of the agency’s is “clearly evident” from the evidence, a court must overturn the agency’s factual finding. Legones v. License Appeal Com. (1968), 100 Ill. App. 2d 394, 403; Division-Kostner Currency Exchange, Inc. v. Montgomery (1974), 18 Ill. App. 3d 225, 228; Pryka v. Board of Fire & Police Commissioners (1979), 67 Ill. App. 3d 210, 213-14.

The Board’s decision in this matter rests entirely on the record made at the hearing before its referee on December 23, 1980. The only evidence presented at the hearing was the testimony of the plaintiff. The former employer did not appear in opposition to the claim and no evidence was adduced or offered other than the testimony of plaintiff.

The uncontradicted testimony of the plaintiff established that she was 39 years of age, single, without a high school diploma and the mother of a three-year-old child. Job Services scheduled a job interview at Amco Container which plaintiff thought she could accept because it was not much further than Pheasant Run. Plaintiff had no money and did not have gas to drive to West Chicago. She called Job Services and notified them that she was not going to be able to keep the interview. The Board referee asked if she had called and tried to set another interview date for herself. Plaintiff answered in the negative. While further inquiry by the referee revealed that the plaintiff had not been given a phone number for Amco Containers, the questioning failed to disclose what information she had been given by Job Services concerning the Amco Container interview.

Plaintiff further testified that during the period in question, May 28, to August 2, she was able and available for work, actively seeking a job, and contacting about two or three prospective employers a week. She added that she was still unemployed but wished that she was working. Plaintiff also testified that she had always been healthy and available to work every day, that there had not been a day that she had not looked in the paper for employment, and that she would always go out and look if she ever had a lead on a job.

Transportation difficulties may be good cause for a refusal to apply for a particular job; especially when considered in light of other circumstances in the case, such as the plaintiff’s job search efforts and knowledge of his or her responsibilities regarding eligibility for unemployment insurance benefits. (Ennis v. Pennsylvania Unemploy ment Compensation Board of Review (1975), 18 Pa. Commw. 344, 336 A.2d 438.) A lack of effort to make transportation arrangements is a fact which may indicate that plaintiff failed to act in good faith or in a reasonable manner -(see Unemployment Compensation Board of Review v. DelGrosso (1976), 24 Pa. Commw. 292, 355 A.2d 622; Szojka v. Unemployment Compensation Board of Review (1958), 187 Pa. Super. 643, 146 A.2d 81.) However, the record here is devoid of any evidence in this regard. A reading of the Board’s decision indicates that the principal element in its finding that plaintiff had not met the “good cause” standard was the single fact that she did not attempt to reschedule the Amco interview. The Board argues that this fact illustrated plaintiff’s lack of interest in pursuing work opportunities. However, the evidence established that plaintiff did not have the phone number of her prospective employer and the record is silent as to what information she did have. The record is also silent on other matters, such as whether she had available alternative means of transportation on the interview date, whether at a later date plaintiff had the means to secure funds for gasoline, and whether Job Services had advised her to reapply when she notified them that she could not keep the initial appointment. In the absence of any evidence concerning these matters, little weight can be ascribed to the single isolated fact that plaintiff did not reschedule her interview. On the other hand, the validity of plaintiff’s excuse for not attending the interview is bolstered both by her good faith notification to the Job Services office that she would not be able to attend the interview as well as her repeated efforts to find a job, making two or three employer contacts per week plus searching daily for job opportunities in the newspaper.

We conclude that the single fact of plaintiff’s failure to attempt to reschedule her interview date, in light of all the other undisputed evidence, was insufficient to overcome the plaintiff’s prima facie case that she had good cause for not attending the scheduled work interview, and that she had not failed to apply without good cause for available suitable work as directed by the Job Service office. We agree with the trial court that the Board’s decision to the contrary is against the manifest weight of the evidence. The judgment of the trial court is affirmed.

Affirmed.

SEIDENFELD, P.J., concurs.

JUSTICE NASH, dissenting:

I respectfully dissent having concluded plaintiff did not establish she had “good cause” to fail to apply for work as directed by the State employment service. I also consider that the majority appears to have shifted the burden for proof of good cause from plaintiff to the agency.

It is established in this State that the receipt of unemployment insurance benefits is a conditional right and the burden of proving eligibility before the agency is on the claimant. (Yadro v. Bowling (1980), 91 Ill. App. 3d 889, 892-93, 414 N.E.2d 1244; Rosenbaum v. Johnson (1978), 60 Ill. App. 3d 657, 662, 377 N.E.2d 258; Brown v. Board of Review (1972), 8 Ill. App. 3d 19, 23, 289 N.E.2d 40.) The only evidence relevant to the issue of good cause offered by plaintiff was that she failed to apply for the job opening to which she had been referred because she had no funds with which to buy gas for her car. The majority refers to other evidence which, if found in the record, would be relevant to the issue of good cause. It notes, however, that the record is devoid of any evidence in that regard and concludes that plaintiff’s excuse she lacked money for gas established a prima facie case she had good cause not to attend the scheduled job interview which was not overcome by the other evidence.

No Illinois case has held that the burden of proof will shift to the administrative agency once a claimant has made a prima facie case for benefit eligibility under the Act. The court did so in Sanchez v. Unemployment Insurance Appeals Board (1977), 20 Cal. 3d 55, 569 P.2d 740, 141 Cal. Rptr. 146; however, that view was rejected by our appellate court in Yadro v. Bowling (1980), 91 Ill. App. 3d 889, 893, 414 N.E.2d 1244.

A telephone call by a claimant advising that he is out of gas, is ill or has no baby-sitter should not be sufficient to shift the burden of proof to the agency to establish claimant lacked good cause to avoid a job opportunity. As I understand it, that is not the law in Illinois and for that reason decline to join with the majority.


author: JUSTICE UNVERZAGT

text:
    JAM PRODUCTIONS, LTD., Plaintiff-Appellee, v. DOMINICK’S FINER FOODS, INC., Defendant-Appellant.
    Second District
    No. 83—563
    Opinion filed December 12, 1983.
    Sidney N. Herman and Jonathan B. Newcomb, both of Kirkland & Ellis, of Chicago, for appellant.
    Murray R. Conzelman and John M. Mullen, both of Conzelman, Schultz, Snarski & Mullen, of Waukegan, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Jam Productions, Ltd., instituted this breach of contract action against defendant, Dominick’s Finer Foods, Inc., in the circuit court of Lake County, Illinois. These parties are also involved in a class action suit involving the same general subject matter, pending in the circuit court of Cook County, Illinois. Defendant moved the circuit court of Lake County to stay those proceedings, pending the resolution of the Cook County class action. That motion was denied. Defendant now appeals pursuant to Supreme Court Rule 307 (87 Ill. 2d R. 307). We reverse.

The parties to this appeal, together with Field Communications Corp., Southland Corp., Convenient Food Marts, Inc., 3-D Video Corp., and certain other individuals were involved in a promotion to air a 1955 movie entitled “Revenge of the Creature” in a newly-developed “3-D” format for television. The show was to be broadcast on WFLD — Channel 32 TV on July 29, 1982. Various chain stores, includ-' ing the defendant, contracted to distribute special 3-D viewing glasses supplied by plaintiff. Plaintiff contracted to provide the defendant with 3-D glasses “suitable” for use in viewing “Revenge of the Creature.” Distributing stores, including the defendant, publicly promoted the airing of the “Creature” through various advertising media.

On the day following the airing of “Revenge of the Creature,” parties who had purchased 3-D glasses from the defendant and others sought their own form of revenge, though the vehicle of a class action suit filed in the circuit court of Cook County (the Harris action). The plaintiff was not named as a party defendant in the Harris action.

The defendants in the Harris action were charged with breach of express warranty, breach of implied warranty, fraud, breach of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121V2, par. 262), and the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1981, ch. I2IV2, par. 311 et seq.) The alleged underlying factual basis for all of these counts was that the 3-D glasses supplied by the defendant and the other distributors did not perform as had been warranted. Apparently, the “Creature” did not appear in 3-D, much to the displeasure and disappointment of class members.

It was alleged in the defendant’s pleadings (and it is now not disputed by the parties), that the defendant notified the plaintiff of the pendency of the Harris action four days after it was filed, pursuant to section 2 — 607(5)(a) of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 607(5)(a)). The plaintiff declined to assume the defense of that lawsuit.

On November 3, 1982, the plaintiff filed the instant breach of contract action against the defendant in the circuit court of Lake County. The defendant appeared and moved for a stay of proceedings on December 3, 1982. After the cause was transferred to another judge (on plaintiff’s motion), the defendant refiled its motion for a stay before Judge Harry D. Strouse, Jr. That motion, as it stood before Judge Strouse, alleged that the defendant had moved for leave to file a third-party complaint against the plaintiff in the Harris action, which third-party complaint involved substantially the same subject matter as was then before the Lake County circuit court. Judge Strouse denied the motion for stay. The defendant thereafter answered the plaintiff’s complaint.

The defendant filed a third motion for stay before Judge Strouse on February 7, 1983. This motion alleged that the defendant had been granted leave to file its third-party complaint against the plaintiff in the Harris action, and that the plaintiff had become impleaded in that suit. Following a series of continuances, the defendant again filed a copy of its motion for stay in the circuit court on March 23, 1983.

The matter was thereafter continued twice more. Then, the cause was transferred (on defendant’s motion) to be heard by Judge Lawrence D. Inglis.

Following that transfer, yet another incarnation of the defendant’s motion for stay was filed on May 5, 1983. This motion had grown to become 56 pages in length, including exhibits.

The circuit court denied the defendant’s motion for stay on May

19, 1983. The circuit court found that the defendant’s motion for stay had been filed on five separate dates, and that its repeated filing had placed “a burden on the court system.” The court observed that another judge had denied the defendant’s motion for stay on December

20, 1982, and that there was “no showing of a change in circumstances since the last ruling.”

The circuit court found that the defendant, through its repeated filing of its motion for stay, had delayed the litigation from December 3, 1982, until the date of its ruling (May 19, 1983). The circuit court concluded that “as a result of plaintiff’s [sic] action there has been an effective stay for a reasonable length of time in Lake County and this matter should not be delayed further without significant advancement of the matter filed in Cook County.” This appeal ensued.

Two issues are presented:

1. Whether the circuit court abused its discretion when it denied the defendant’s motion for a stay of proceedings pending the resolution of a similar suit involving the parties which was filed in a sister county.

2. Whether this court lacks supervisory authority over the administration of the Lake County circuit court and, therefore, must deny the defendant’s request for the entry of a supervisory writ to that court.

The first issue in this interlocutory appeal is whether the circuit court abused its discretion when it denied the defendant’s petition for a stay of proceedings pending the outcome of the Harris action. (Schlenz v. Castle (1980), 80 Ill. App. 3d 1131, 1135, modified on other grounds (1981), 84 Ill. 2d 196, appeal dismissed (1981), 454 U.S. 804, 70 L. Ed. 2d 73, 102 S. Ct. 76.) We are of the opinion that a stay should have been entered, and accordingly we reverse.

When determining whether to stay the latter of two suits brought concerning a given controversy, the courts consider a number of factors which include: “comity; prevention of multiplicity, vexation and harassment; likelihood of obtaining complete relief in the foreign jurisdiction; and the res judicata effect of a foreign judgment in the local forum.” (A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 254.) Here, the Harris action was filed prior to the plaintiff’s complaint in this cause. The plaintiff was given an opportunity pursuant to section 2 — 607(5)(a) of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 607(5)(a)), to enter into that suit and litigate, inter alia, the factual dispute regarding the suitability of the 3-D glasses it supplied to the defendant, for use in viewing the televised 3-D broadcast. Instead, the plaintiff chose to file a separate suit in Lake County, Illinois, in which it must have known that an issue regarding the sufficiency of the 3-D glasses would arise. The question before this court is whether the circuit court abused its discretion when it refused to stay the Lake County suit, as the latter of two suits brought on this single factual controversy involving both parties.

The defendant advances two significant reasons why a stay of the Lake County action would be appropriate. First, it is alleged that a stay is necessary to protect the defendant from the risk of inconsistent judgments. Second, the defendant asserts that a stay is required to prevent needless duplicitous litigation between the parties. The plaintiff, in its appellate brief, nowhere denies the existence and viability of each of these grounds for the entry of a stay.

The defendant is quite correct that the concurrent pendency of both the Harris and Lake County actions might require it to “pay twice”; a finding entered in the Harris action that the glasses were defective would subject the defendant to liability to the class; a finding in the Lake County action that the glasses were not defective would subject the defendant to liability to the plaintiff. The pivotal factual controversy common to each lawsuit involves the quality of the 3-D glasses supplied by the plaintiff to the defendant (who in turn sold them to Harris class members).

The plaintiff does not dispute that the plaintiff could become subject to conflicting judgments if the Lake County action is not stayed. Under Illinois case law, the grant of such a stay is necessary, as a matter of fairness, to safeguard the defendant from the possibility of double liability. See People ex rel. Department of Public Aid v. Santos (1982), 92 Ill. 2d 120, 131.

Nor does the plaintiff dispute that the stay of its Lake County suit would avoid wasteful, duplicative litigation between the parties. Given the pendency of the defendant’s third-party complaint against the plaintiff in the Harris action, the plaintiff could assert its present cause of action against the defendant as a counterclaim to the defendant’s third-party complaint. (See Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 406(b), 2 — 608.) Moreover, other parties who might be liable over to the plaintiff in the event that the 3-D glasses are ultimately found to be defective, are already parties to the Harris action. We conclude that the plaintiff can obtain complete relief against the defendant in the Harris action, and that there is no counterbalancing reason appearing of record, which would otherwise justify the maintenance of separate suits in sister counties regarding the factual transaction involved herein.

We note that the defendant’s conduct in the prosecution of its request for a stay in the Lake County action appears from the record to be both diligent and straightforward. The plaintiff’s allegations to the contrary must be based upon a misconstruction of the record. The defendant first requested a stay on the date it formally appeared in the Lake County suit. Judge Jack Hoogasian, who initially presided over this suit, granted the plaintiff’s motion for a change of judge before he had an opportunity to pass on the defendant’s motion for a stay. The defendant’s motion for a stay was ruled upon for the first time by Judge Strouse on December 29, 1982, a date which preceded the defendant’s filing of its third-party complaint against plaintiff in the Harris action.

After the defendant filed its third-party complaint in the Harris action, it again moved for a stay of the Lake County proceedings alleging this change in circumstances. The cause was transferred to the courtroom of Judge Inglis before Judge Strouse had an opportunity to rule upon the defendant’s new motion for stay. The plaintiff is simply incorrect in its assertion that the defendant presented “the same” motion for a stay before three different circuit court judges, and that such motion was denied by the court on five separate occasions. The opposite is apparent from the record, in that the defendant appears to have diligently and in good faith pursued its request for a stay. In this regard, it is noted that the delay encountered in the Lake County litigation between December 1982 and May 1983 was not attributable to the defendant’s motion for a stay. Instead, it appears of record that the defendant’s motion for a stay was repeatedly continued, pending disposition of the plaintiff’s motion for summary judgment.

Indeed, there seems to be no support in the record for the circuit court’s finding that the defendant’s refiling of its motion for a stay was responsible for the delay of the Lake County suit since December 1982. The circuit court, furthermore, was incorrect in its finding that the defendant failed to demonstrate a change in circumstances since December 1982, which would merit the grant of its request for a stay. The defendant’s filing of its third-party complaint in the Harris action was such a change in circumstances. Although the circuit court may have correctly noted that the defendant’s repeated refiling of its lengthy motion for a stay was an unnecessary, abusive practice, this factor alone cannot overcome the positive reasons cited by the defendant in favor of the grant of its motion for a stay.

We do not accept the plaintiff’s conclusions regarding the general state of class action litigation in Cook County, Illinois, without some factual basis in the record to support those conclusions. The plaintiff is correct in its observation that the circuit court could properly decline to stay the Lake County action, if it found that the parties in the Harris action were not diligently advancing that litigation. (See Medline Industries, Inc. v. Pascal (1974), 23 Ill. App. 3d 346, 349-50.) However, the plaintiff is factually incorrect in its assertion that the circuit court in this case reviewed the progress of the Harris action on five separate occasions, and found it to be inadequate.

On remand, the circuit court should consider an updated assessment of the progress of the Harris action, in determining the terms and length of the stay of the Lake County proceedings.

The defendant, as an alternate contention, has requested this court to exercise its alleged supervisory authority over the circuit court and enter a supervisory writ requiring such court to grant the defendant’s motion for a stay. However, supervisory authority over the circuit court of Lake County rests with the Supreme Court of this State. (Ill. Const., art. VI, sec. 16; see Horn v. Rincker (1981), 84 Ill. 2d 139, 149.) This court, therefore, lacks authority to grant the defendant’s prayer for the entry of a supervisory writ.

In view of the foregoing, we reverse the judgment of the trial court. We grant the defendant a stay. We remand to the trial court for that court to determine the terms of the stay and its length.

Reversed and remanded.

LINDBERG and NASH, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ONDRA HODGES, Defendant-Appellant.
    Third District
    No. 3—82—0726
    Opinion filed December 14, 1983.
    Robert Agostinelli and Verlin R.F. Meinz, both of State Appellate Defender’s Office, of Ottawa, for appellant.

      L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Ondra Hodges, was charged by complaint, and later by indictment, with the offense of retail theft. The charge was elevated to a felony because of two prior convictions for the same offense. In the defendant’s original two-day trial the jury was deadlocked and the trial court declared a mistrial. Following a second three-day trial the defendant was convicted of the offense of retail theft. The judge then sentenced the defendant to a term of three years of imprisonment and ordered the payment of fees and costs.

On appeal the defendant raises the following issue: Whether the trial court properly imposed costs for the defendant’s first trial which resulted in a mistrial.

The record indicates that when the trial court entered judgment for costs against the defendant after his conviction and sentence for retail theft, it also included various fees and costs involved in the first trial which resulted in a mistrial. The order referred to five days of trial time which included two days for the first trial and three days for the second trial.

The trial court assessed court costs against the defendant pursuant to section 13 of division XIV of the Criminal Code of 1874 (Ill. Rev. Stat. 1981, ch. 38, par. 180 — 3) (hereafter the Act), which reads as follows:

“When any person is convicted of an offense under any statute, or at common law, the court shall give judgment that the offender pay the costs of prosecution.”

The defendant argues that the language of the Act suggests that costs can be assessed only for a conviction. The defendant asserts that because the judgment included the cost of the mistrial, the order was improper and must be recalculated. The defendant does not question the assessment of costs pertaining to the second trial at which he was convicted.

The State does not deny that when the trial court assessed costs against the defendant, the order included costs for the original two-day mistrial. Rather, it argues that under the Act, one who is convicted of an offense must pay the costs of prosecution which include the expenses incurred in the two-day mistrial.

The allowance and recovery of costs, being unknown at common law, rests entirely upon the statutory provisions, which must be strictly construed. (People v. Nicholls (1978), 71 Ill. 2d 166, 173, 374 N.E.2d 194, 197; People v. Kluck (1979), 70 Ill. App. 3d 582, 584, 388 N.E.2d 918, 919; Galpin v. City of Chicago (1911), 249 Ill. 554, 566, 94 N.E. 961, 965.) Furthermore, the assessment of costs or fees not authorized by statute has been held to be an abuse of discretion. People v. Kluck (1979), 70 Ill. App. 3d 582, 584, 388 N.E .2d 918, 919; People v. Nicholls (1977), 45 Ill. App. 3d 312, 314, 359 N.E.2d 1095, 1098, affd in part and rev’d in part on other grounds (1978), 71 Ill. 2d 166, 374 N.E.2d 194.

A trial court can properly assess costs only against a convicted defendant under the Act. (Ill. Rev. Stat. 1981, ch. 38, par. 180 — 3.) It is clear that a conviction is a prerequisite for the assessment of costs. (People v. Halliday (1979), 73 Ill. App. 3d 615, 618, 392 N.E.2d 389, 391.) In this case, the defendant was not convicted during the first trial. Instead, the trial court declared a mistrial. While the legal effect of a mistrial is not an acquittal, neither is it a conviction. Thus, the trial court lacked authority to assess costs against the defendant for the first two-day trial.

The State also argues that the defendant waived his right to challenge the assessment of costs by failing to file a motion to retax in the trial court. (Ill. Rev. Stat. 1981, ch. 33, par. 26.) The cases cited by the State, People v. Horn (1978), 64 Ill. App. 3d 717, 381 N.E.2d 790, County of McHenry v. Duenser (1977), 49 Ill. App. 3d 125, 363 N.E.2d 1197, and People v. Harbarugh (1976), 40 Ill. App. 3d 295, 352 N.E.2d 412, are distinguishable.

As stated above, a trial court may only assess costs when they are authorized by statute. Assessing costs when they are not authorized is an abuse of discretion. The Act, strictly construed, requires that a person be convicted before costs may be assessed against him. In all three of the cases cited by the State, the defendants were convicted at the original bench trial and costs were assessed against them. Since there was a conviction, the court in each case had authority to assess costs. In contrast, the defendant in the present case was not convicted at his first trial. Therefore, without the prerequisite conviction, the trial court had no authority to assess costs against him for the mistrial.

Furthermore, in both Duenser and Harbarugh, the defendants challenged the constitutionality of the cost statute for the first time on appeal although neither defendant had made a motion to retax costs in the trial court. It should be noted that the court stated in Harbarugh that, “The question of the constitutionality of a statute is properly preserved for review only when it has been raised in and passed upon by the trial court. [Citations.]” (Emphasis added.) 40 Ill. App. 3d 295, 302.

The defendant in the present case clearly has not questioned the constitutionality of the cost statute. He has simply challenged the authority of the trial court to assess costs for the mistrial.

Finally, in People v. Keagbine (1979), 77 Ill. App. 3d 1039, 396 N.E.2d 1341, cert, denied (1980), 449 U.S. 951, 66 L. Ed. 2d 215, 101 S. Ct. 354, the trial court neglected to impose costs following the defendant’s conviction and sentence. For the first time on appeal the State asked that the case be remanded so that costs could be entered. (Ill. Rev. Stat. 1981, ch. 38, par. 180 — 3.) Reasoning that such costs are imposed by the clerk of the court as part of his ministerial duties and are nondiscretionary, the appellate court held that the failure of the trial court to assess those costs would not preclude a subsequent correction of the error. (People v. Keagbine (1979), 77 Ill. App. 3d 1039, 1047, 396 N.E.2d 1341, 1347.) Likewise, in the present case, we believe that the failure of the trial court to properly assess costs against the defendant does not preclude correction of that error on remand.

For the reasons stated above, the trial court is instructed to recalculate the costs so that the defendant is assessed only for the costs of the second trial in which he was convicted of the offense of retail theft.

The order of the circuit court of Kankakee County assessing costs is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

ALLOY and SCOTT, JJ., concur.


author: JUSTICE ALLOY

text:
      In re ESTATE OF LELIA A. WEIR, Deceased—(Rebecca Zaborac, Petitioner-Appellee, v. Marie Adams, as Adm’r of the Estate of Lelia Weir, Deceased, and as Heir and Ex’r of the Estate of Naomi Hoffman, Deceased, Respondent-Appellant).
    Third District
    No. 3—83—0230
    Opinion filed December 14, 1983.

      Tom B. Ewing, of Lewiston, for appellants.
    Ralph Froehling, of Froehling, Taylor & Weber, of Canton, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

Marie Adams, as former administrator of the estate of Lelia Weir, and as executor of the estate of Naomi Hoffman, her mother, appeals from the decision and judgment of the circuit court in this probate matter. Adams was appointed administrator of the estate of Lelia Weir in March 1982, her petition indicating that Lelia Weir died on September 6, 1981, leaving no will. Subsequent to Adams’ appointment, Rebecca Zaborac, appellee herein, filed a petition for probate of will and letters testamentary, requesting admission to probate of a lost will of the decedent, dated April 26, 1978. A copy of the will was attached to the petition. A hearing on the admission of the lost will to probate, as Lelia Weir’s last will and testament, was scheduled and the trial court authorized Marie Adams, as sitting administrator of the estate, to employ counsel, on behalf of the estate and at estate expense, to represent the estate in that proceeding. Marie Adams did so and vigorously attacked the validity of the April 26, 1978, will as the decedent’s valid last will and testament. A hearing on the admission of the lost will to probate was held over two days, in June of 1982, before the trial judge. A number of witnesses testified concerning that will and concerning Lelia Weir’s intention respecting the disposition of her property upon death. The focus of the hearing was a mimeographed copy of the April 26, 1978, will made by Lelia Weir and actions and statements by her respecting the main beneficiary thereunder, Rebecca Zaborac. At the conclusion of the hearing, which produced much conflicting testimony as to Lelia Weir’s intentions and attitudes, the trial judge found that the presumption of revocation by failure to produce the original had been overcome by petitioner, Rebecca Zaborac. The court admitted the April 26, 1978, will to probate as Lelia Weir’s last will and testament. Its order appointed Rebecca Za-borac as executor, named in the will, and the court also revoked the letters of administration previously issued to Marie Adams. Notice of the admission of the will to probate (Ill. Rev. Stat. 1981, ch. lUR/s, par. 6 — 10) and of the heirs’ rights to file a petition for formal proof of the will, under section 6 — 21 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. llOVa, par. 6 — 21) was sent to the 51 heirs of the decedent, including Naomi Hoffman, a cousin of Lelia Weir and mother of Marie Adams.

Following the decision of the court in June, admitting the will to probate, post-trial motions were filed in July by Marie Adams and Naomi Hoffman. The Hoffman petition for formal proof of will, under section 6 — 21 of the Probate Act of 1975, was filed in August 1982. Zaborac responded to the petition for formal proof from Hoffman, and to another petition from one Karen Rynearson, by filing motions to strike the petitions. A hearing, on all pending motions, was held in March 1983, before the trial judge. The trial court, at the conclusion, denied the post-trial motions and granted Zaborac’s motion to strike the Hoffman petition for formal proof of the will. Notice of appeal followed, with Marie Adams, as former administrator of the estate of Lelia Weir, appealing from the denial of her post-trial motion for vaca-ture of the June order admitting the will to probate, or, alternatively, a new hearing on that matter. Marie Adams, as executor of the estate of Naomi Hoffman, deceased, also appealed from the denial of Hoffman’s petition for formal proof of the will.

The first issue on appeal is whether the court erred in its finding that the presumption of revocation, arising from nonproduction of the original April 1978 will, was overcome by the evidence presented by petitioner, Rebecca Zaborac. We find no error in the court’s conclusion. The law respecting lost wills is well established.

“Where a last will and testament, after its execution, is retained by the testator and cannot be found upon his death, it is the well-settled rule of this and of the majority of jurisdictions that it will be presumed to have been destroyed by him animo revocandi. [Citations.] The same cases establish that the presumption is subject to being rebutted by circumstances which tend to show a contrary conclusion, and that the burden is on one seeking to probate such a will to prove that it was unrevoked at the testator’s death.” (In re Estate of Moos (1953), 414 Ill. 54, 57, 110 N.E.2d 194, noted in In re Estate of Netherton (1978), 62 Ill. App. 3d 55, 57-58.)

Factors to be considered in addressing the rebuttal of the presumption include evidence as to statements from the testator that he did not intend to revoke the will, evidence that he entertained a kind and loving attitude toward the proposed beneficiary under the will, and evidence of other’s access to the will prior to death. (Jackson v. Jackson (1971), 132 Ill. App. 2d 66, 71, 268 N.E.2d 62.) Especially noteworthy in establishing a lack of revocation is evidence of a continuing friendly and loving relation, supplemented by declarations of the testator, subsequent to execution of the will and prior to and at the time of death, which indicate an unchanged attitude on the part of the testator relative to the disposition of his property. (In re Estate of Moos (1953), 414 Ill. 54, 61.) We find, on the basis of the record and evidence therein, which need not be detailed in this opinion, that the evidence before the trial court supported its findings and conclusions. The record clearly indicates that Lelia Weir directed the preparation of the April 26, 1978, will and that the will was executed and attested to on that date. Mrs. Zaborac was named executor under that will, and she and her husband were named residual legatees thereunder. The only special bequests totaled $10,000, thereby leaving most of the Weir estate to the Zaboracs under the will. In addition, there was considerable testimony, much of it from third parties, indicating Lelia Weir’s attitude of love and affection for Rebecca Zaborac up to the time of Weir’s death. On appeal, Marie Adams, in seeking to reverse the court’s judgment, emphasizes other evidence contradicting the presence of such a relationship and indicating that harmonious relations between Zaborac and Weir did not exist. In such a situation, questions of credibility and the weight to be given evidence, are for the trial court to determine, and his findings will not be disturbed unless contrary to the manifest weight of the evidence. (Brown v. Zimmerman (1959), 18 Ill. 2d 94, 102, 163 N.E.2d 518; In re Estate of Netherton (1978), 62 Ill. App. 3d 55, 57, 378 N.E.2d 800.) We find the court’s findings on the evidence amply supported in the record. Also present in the record is considerable testimony, again from third parties, establishing that the decedent made a number of declarations, some within days of her death, wherein she indicated that her property would pass to Rebecca Zaborac and her desire for the same. These statements by the decedent prior to her death reaffirm and further substantiate her continued satisfaction with the disposition of her property in the April 1978 will and her intention and direction as expressed in that will. Again, Marie Adams notes testimony from other witnesses contradicting the evidence of such declarations, but, as noted previously, such were matters of credibility and weight to be determined by the trial court. We have fully examined the evidence presented and find no error in the court’s findings and judgment that the presumption of revocation was rebutted and that the April 26, 1978, will was the last will and testament of Lelia Weir.

The second assigned error relates to an evidentiary ruling by the trial court during counsel’s cross-examination of Rebecca Zaborac. During cross, counsel inquired as to Zaborac’s intention to file a claim against the estate for services rendered, in the event she was not successful in probating the lost will. The court sustained objections to the question, finding that it pertained to matters not in issue before the court. It is now contended that the court’s ruling prejudicially limited Adams’ right to cross-examine Zaborac on a matter in issue, that is, the relationship between the decedent and Zaborac during the decedent’s lifetime. The relationship, however, had been covered to a large extent previously. In response to cross, Zaborac had clearly indicated that she was not paid for her help by Weir and that payment was not a part of any agreement they had. She testified that she never asked for compensation, nor filed any claim for compensation. She did, in response to counsel’s question, indicate her intention to file a claim for compensation in the future. Counsel then re-asked the question, inquiring if that was her intention should she prove unsuccessful in her attempt to probate the lost will. Objection to the latter was made and sustained. We find no prejudicial error in the court’s ruling. Counsel had already elicited testimony indicating a future intention to file a claim for services. The circumstances under which such a claim would be filed, which was the focus of counsel’s objected to question, were not the relevant facts. Rather, the relevant facts were the basis for such a claim for services. No question as to the basis for a future claim was asked by Adams’ counsel. Moreover, counsel did produce other evidence, through his own witnesses, which indicated that there was a payment-for-services arrangement between Weir and Zaborac. Evidentiary rulings are within the discretion of the trial court, and absent an abuse of discretion resulting in prejudice to the party objecting, those rulings will not be disturbed. In light of the admission by Zaborac that she intended to file a claim, and the other evidence covering the arrangements between Weir and Zaborac, we find no reversible error in the decision of the trial court as to this evidentiary ruling.

Counsel for respondent Marie Adams next contends that the judgment of the circuit court must be reversed because the court lacked jurisdiction to hear the petition for probate of the will. The argument is that the Probate Act of 1975 requires prior notice to heirs and legatees of a hearing of a petition to admit a will to probate, where the subject is a lost will, and that such prior notice was not given in the instant case. This position is without basis. Section 6 — 4 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. IIOV2, par. 6 — 4) is the section governing admissions of wills to probate, and it pertains to petitions, whether based upon fully executed originals or the probate of lost wills. (See In re Estate of Millsap (1979), 75 Ill. 2d 247, 250-54, 388 N.E.2d 374.) Nothing in section 6 — 4 requires prior notice to heirs and legatees of such a petition. Furthermore, section 6 — 10 (Ill. Rev. Stat. 1981, ch. llOVa, par. 6 — 10), relied upon by Adams, expressly requires notice within 14 days after entry of the order admitting a will to probate. This section was complied with by Zaborac. Section 6 — 21 (Ill. Rev. Stat. 1981, ch. llO1^, par. 6 — 21) sets forth the procedure for interested parties, who receive notice under section 6 — 10, to request and obtain formal proof of the will after admission under the abbreviated procedures of section 6 — 4. Nothing in these sections indicates or suggests that prior notice of a hearing on the petition to admit a will to probate must be given heirs and legatees. The express provisions are clearly otherwise. The court had jurisdiction to proceed on the hearing concerning Zaborac’s petition for probate of the will.

The final issue before us is whether the court erred in denying the petition for formal proof of the will on behalf of the estate of Naomi Hoffman, Marie Adams, executor. Section 6 — 21 states:

“Formal proof of will. If a will has been admitted to probate before notice in accordance with Section 6 — 4, any person entitled to notice under Section 6 — 10 may file a petition within 42 days after the effective date of the original order admitting the will to probate to require proof of the will pursuant to this Section. The court must set the matter for hearing upon such notice to interested persons as the court directs. At the hearing the proponent must establish the will by testimony of the witnesses as provided in subsection 6 — 4(b)(1) or Section 6 — 5 or other evidence as provided in this Act, but not as provided in subsection 6 — 4(b)(2) or subsection 6 — 4(bX3) [permitting proof by attestation clause or affidavit], as if the will had not originally been admitted to probate. If the proponent establishes the will by sufficient competent evidence, the original order admitting it to probate and the original order appointing the representative shall be confirmed and are effective as to all persons, including creditors, as of the dates of their entries, unless there is proof of fraud, forgery, compulsion or other improper conduct, which in the opinion of the court is sufficient to invalidate or destroy the will. ***.” (Ill. Rev. Stat. 1981, ch. IMP-k, par. 6-21.)

Section 6 — 21 sets forth a procedure whereby interested persons entitled to notice under section 6 — 10, who have not been given prior notice of the hearing on the petition to admit a will to probate, may require formal proof of the will after its initial admission to probate. Clearly, the core circumstances addressed in this section are those in which the abbreviated procedure for proof of a will, under section 6— 4(b)(2) of section 6 — 4(b)(3), has been utilized, without prior notice to heirs and legatees. However, the language of the statute is mandatory. The court must set a hearing on a petition for formal proof by a party who had no prior notice of the original hearing, and the proponent, at that hearing, must establish the will as set forth in the section. In the instant case, there are a number of unusual circumstances and considerations bearing upon Hoffman’s petition for formal proof under section 6 — 21. As is apparent from the extensive evidence heard at the hearing in June of 1982, the hearing on Rebecca Za-borac’s petition to admit the will to probate was not the abbreviated proceeding as provided for in sections 6 — 4(bX2) and (bX3). Extensive evidence, on both sides of the issue, was presented to the court. It was clearly an adversary proceeding, wherein the estate was represented by the court-appointed administrator, Marie Adams, who had been authorized by the court to obtain legal counsel, on behalf of the estate. Expenses for that legal representation were paid from estate assets. Thus, formal proof of the will was required and was presented at that hearing. Notice of the hearing had been given to Marie Adams, acting administrator of the Lelia Weir Estate, and the court authorized her to obtain counsel to represent the Estate at the hearing. It is established that an administrator or executor for an estate is impressed with fiduciary duties toward all the heirs and legatees. Such representatives are held to be trustees for all of the heirs and distrib-utees. (Christensen v. Christensen (1927), 327 Ill. 448, 453, 158 N.E. 706.) Thus, Marie Adams, as acting administrator, had a fiduciary obligation to represent all beneficiaries under the intestate estate and was acting as the court-appointed representative of them at the hearing to probate the lost will. The record is clear that she and her counsel faithfully and vigorously advanced the interests of those persons by their prosecution of the case against probate of the April 1978 will. There is no allegation or evidence that the other beneficiaries under the intestate estate did not receive adequate and proper representation through Marie Adams, as acting administrator for the estate. In addition, Marie Adams, acting now as executor of the Estate of Naomi Hoffman, and not as administrator, is the person seeking formal proof under section 6 — 21. Noteworthy in this connection is the fact that Naomi Hoffman filed a post-trial motion seeking to vacate the order admitting the will to probate.

While the unique factual circumstances of the case pressure this appellate court to conclude that the court did not err in striking the petition for formal proof under section 6 — 21, given Adams’ prior participation as administrator in the initial hearing, we decline to do so. Such a conclusion would deprive heirs and beneficiaries, who had no notice of the hearing to admit a will to probate, of a chance to require formal proof, under section 6 — 21, with counsel of their own choosing, in situations wherein the estate was represented by an appointed representative at such hearing. They would be left to pursue claims that the appointed representative did not fulfill his obligations at such hearing in order to challenge the findings of the court. The requirements of the Probate Act of 1975 in section 6 — 21 are clear, direct and mandatory. We believe it best to enforce them to the letter, so as to ensure the rights of all interested persons in such proceedings. We would note that in cases of the probate of a lost will, in order to avoid the obligation to perhaps have to twice prove up such a will, the better procedure is to proceed to such a hearing only after giving notice to all heirs, legatees and devisees, except those who have filed entries of appearance. Thus, careful and prudent counsel can prevent the unfortunate result obtained in the present case.

For the reasons stated, the order of the circuit court striking Naomi Hoffman’s petition for formal proof of the will, under section 6 — 21, is reversed and the cause remanded for a hearing pursuant to that section.

We further direct, however, that the hearing for formal proof of the will be limited to evidence relating to the execution of the will document, as provided in section 6 — 4(b)(1) and section 6 — 5. The revocation issue has been decided previously, at the initial proceeding, and may also arise within any will contest action as well.

The judgment of the circuit court of Fulton County is affirmed in part and reversed in part, and the cause is remanded for hearing on the petition of Naomi Hoffman for formal proof of the will, under section 6 — 21.

Reversed in part and affirmed in part, with remandment for further proceedings consistent with the views expressed in this opinion.

STOUDER, RJ., and BARRY, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OLLIE SMITHEY, Defendant-Appellant.
    Second District
    No. 82—216
    Opinion filed December 12, 1983.

      G. Joseph Weller and Kyle Wesendorf, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Cherri A. Novak, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The deféndant, Ollie Smithey, entered a negotiated plea of guilty to the charge of armed robbery and was sentenced to the agreed term of imprisonment of 18 years. On appeal, the defendant contends that the trial court abused its discretion when it denied his petition to withdraw his guilty plea.

The State charged the defendant by information with the offenses of armed robbery and home invasion stemming from an incident in Winnebago County. After entering a plea of not guilty to both charges, the defendant entered into plea negotiations.

On the date scheduled for trial, the State’s Attorney and defense counsel informed the court of the terms of the plea agreement. According to the State’s Attorney, the defendant agreed to plead guilty to the count of armed robbery and receive a sentence of imprisonment of 18 years, with credit for time already served. In return, the State agreed to dismiss the home-invasion count and unrelated charges in Winnebago County, which consisted of home invasion and armed robbery and a fugitive-from-justice complaint based on an armed robbery in the State of Louisiana. The 18-year sentence in this case was to be made concurrent with any sentence he later received in Ogle County, in Wisconsin, or in Federal court. The defendant was promised that he would be transferred to Ogle County where he would receive an 18-year sentence on another armed robbery charge, which sentence would run concurrently with the one he received in the present case.

The State’s Attorney also remarked that because the sentence in this case would be the first one entered, it was the other jurisdictions that would have to be willing to make their sentences concurrent with the present one. He remarked further that he was aware that the court could not make the instant sentence concurrent with something that had not happened yet. The court below stressed that it had no control over other courts.

The court below cautioned the defendant that, since it was the first court in a multi-jurisdiction plea negotiation to consider the agreement, “if *** [the defendant is] tried in some other court, that then there’s no agreement that can be made at this time in this court that will forbid another court from giving him a consecutive sentence.” The defendant responded that he understood.

Defense counsel stated that the defendant was aware of the possibilities of sentencing in other jurisdictions and that those had been worked out. Counsel remarked further that the defendant “understood that you can’t bind any other jurisdiction, but those, to my knowledge have been worked out, also.” He also articulated that there had been negotiations in this case with Wisconsin, Ogle County, and the Federal government.

The court again explained to the defendant that the present plea agreement in Winnebago County did not mean that the defendant would not have to address the question of the imposition of concurrent or consecutive sentences in other courts. The defendant acknowledged that he understood the court’s warning.

The court then recited the terms of the plea agreement as it understood them. The court stated that, according to the negotiated plea, the defendant agreed to plead guilty to the armed robbery count of the present information and would be sentenced to an 18-year term of imprisonment for that offense, while the State agreed to dismiss all other charges now pending against the defendant in Winnebago County. The defendant concurred with the court’s recitation and interpretation of the plea agreement. Later, the court stressed that any sentence imposed in the present case applied only to the armed robbery to which the defendant pleaded guilty and not to any other crimes the defendant may have committed. The defendant expressed his agreement with the court’s statement.

After hearing the factual basis and conducting other matters not germane to the issue raised on appeal, the court stated that it would concur in the plea agreement and accept it. At that point the following colloquy ensued:

“THE COURT: Has your lawyer or anyone else promised you anything except the promises contained in this plea agreement?
THE DEFENDANT: No Sir. Just that they would run concurrent with the federal — the charges going to be brought on me and I’d be serving my time in the federal penitentiary.
THE COURT: All right. Now that agreement is something that you and they must have going with the rest of them.
THE DEFENDANT: Yes Sir.”

The court then emphasized that its actions could not bind other jurisdictions; that after the plea agreement was carried out and after the defendant was sentenced to 18 years in the penitentiary, he would have to take his chances with the rest of the jurisdictions; and that if the defendant had any other agreement beyond the terms of the current plea agreement regarding action to be taken after he was sentenced in this case, the court had no control over that agreement or another court. The defendant stated that he understood the court’s remarks. In addition, the court stated that while it had no control over another court’s decision whether to impose a sentence concurrent with the one in this case, the court expressed its agreement with such a procedure and commented that it was the defendant’s “expectation in those other courts that the sentence would be concurrent.”

The defendant entered a plea of guilty to the armed robbery charge; the court accepted the guilty plea, entered a judgment of conviction, and sentenced the defendant to 18 years in the Illinois Department of Corrections. The court also advised the defendant of his rights to file a motion to vacate his guilty plea and to appeal if such a motion were denied.

Subsequently, on April 13, 1981, the defendant filed a pro se petition to withdraw his guilty plea pursuant to Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)). The petition alleged, among other things, that the defendant’s attorney in Ogle County, Donald Manzullo, had coordinated multi-jurisdiction plea negotiations involving charges in Ogle and Winnebago Counties in Illinois plus pending charges in Alabama, Wisconsin, and Louisiana. He stated further that when he pleaded guilty in the present case, he was under the impression that all the jurisdictions mentioned above had agreed to go along with the plea bargain emanating from Ogle County. After he pleaded guilty, he learned that the State of Louisiana had refused to concur with the plea bargain offered by the Ogle County State’s Attorney, Dennis Schumacher. He would not have agreed to plead guilty in the case at bar had he known that other jurisdictions would continue to prosecute him. In addition, the petition alleged (1) that an FBI agent had informed the defendant that, in the event Federal charges were brought against him, he “would see what could be done” about the defendant serving time in a Federal penitentiary concurrent with the State time being served, and (2) that the defendant was under the impression that the agent had the authority to bind the Federal government, “as opposed to merely making a suggestion that any federal time would be served concurrent with state time and any time to be spent would be spent in a federal penitentiary.” He would not have pleaded guilty to the charge in question if he had realized that the agent did not have the power to bind the Federal government.

Attached to the defendant’s petition was a copy of a letter Mr. Schumacher sent to Attorney Manzullo in which the terms of a plea agreement were set forth. The letter, which was dated March 3, 1981, stated in part that the defendant would be sentenced to 18 years in the penitentiary, with the Winnebago County sentence to be served concurrently with the Ogle County sentence. The last paragraph of the letter related that “[a]ll other jurisdictions will dismiss their cases against the defendant.” Those jurisdictions (which were unnamed) were to forward letters acknowledging that they would not conduct criminal proceedings against the defendant concerning their cases.

On October 13, 1981, the trial court held a hearing relative to the defendant’s motion to withdraw his guilty plea. The defendant was not present at the hearing, and neither defense counsel nor the State presented any witnesses. The defendant’s attorney produced a letter from his client which was dated July 27, 1981; the attorney summarized the defendant’s letter as stating that Smithey pleaded guilty in the present case with the belief that the other jurisdictions would go along with the 18-year sentence imposed in Winnebago County and run their subsequent sentences concurrent with the instant one.

After arguments of the parties, and after reviewing the entire transcript of the earlier plea agreement proceedings in this case, the court below denied the defendant’s motion to withdraw his guilty plea. Defendant appealed.

In this court, the defendant contends that the trial court abused its discretion when it denied the petition to withdraw his guilty plea that the defendant filed under Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)). He advances a two-fold argument in support of his assertion that he should have been allowed to withdraw his plea of guilty to the charge of armed robbery. He asserts first that the plea was induced by the State’s promise, which has not been fulfilled, that all other jurisdictions currently contemplating prosecuting the defendant had agreed to the terms of the present plea agreement. Secondly, he avers that he entered the agreement under the misapprehension of two facts: (1) that all jurisdictions with charges pending against him, including the State of Louisiana, had agreed that he would receive an 18-year term of imprisonment; and (2) that he would serve his incarceration in a Federal penitentiary.

The State responds that the court below correctly denied the defendant’s petition to withdraw his guilty plea, because (1) the plea agreement as presented in court was followed scrupulously, and (2) the record negates the defendant’s assertion that he misapprehended certain terms of the plea bargain.

The general principles of law governing the withdrawal of guilty pleas are well known. It is axiomatic that the defendant has no absolute right to withdraw his plea of guilty (People v. Douthit (1977), 51 Ill. App. 3d 758, 761; People v. Thompson (1975), 29 Ill. App. 3d 334, 336); rather, he bears the burden of demonstrating to the trial court the necessity of withdrawing his guilty plea (People v. Galvan (1980), 85 Ill. App. 3d 800, 804, cert, denied (1981), 450 U.S. 1001, 68 L. Ed. 2d 204, 101 S. Ct. 1710; People v. Bovinett (1979), 73 Ill. App. 3d 833, 835). The general rule is that it is within the sound discretion of the court below to determine whether a plea of guilty, once entered, may be withdrawn. (People v. Hale (1980), 82 Ill. 2d 172, 175-76; People v. Benedetto (1981), 102 Ill. App. 3d 10, 16; People v. Nichols (1981), 96 Ill. App. 3d 354, 356.) The defendant correctly notes that the well-established precept that a plea of guilty which was induced by the unfulfilled promise of the prosecutor loses its voluntary nature, will be considered void and, hence, must be vacated. (Santobello v. New York (1971), 404 U.S. 257, 262, 30 L. Ed. 2d 427, 433, 92 S. Ct. 495, 499; People v. Pier (1972), 51 Ill. 2d 96, 99; People v. Robinson (1978), 66 Ill. App. 3d 601, 603; People v. Spurlock (1974), 19 Ill. App. 3d 474, 475.) The withdrawal of a guilty plea should be allowed in circumstances where the plea resulted from the misapprehension of law or fact, or in cases where it appears the plea was entered as a result of a misrepresentation by counsel, the State’s Attorney, or someone else in authority. People v. Benedetto (1981), 102 Ill. App. 3d 10, 16, and cases cited therein; People v. Paul (1981), 93 Ill. App. 3d. 302, 311.

The defendant first contends that the plea bargain agreement in this case contained the State’s Attorney’s promise that all other jurisdictions having charges pending against him agreed either to dismiss their charges or to make any sentences they imposed upon him concurrent and co-extensive with the 18-year term of imprisonment imposed in Winnebago County. After a review of this record, we believe the defendant has failed to establish the existence of the prosecutor’s alleged promise.

Supreme Court Rule 402(b) (87 Ill. 2d R. 402(b)) requires that when a guilty plea is entered as a result of a plea agreement, “the agreement shall be stated in open court.” One major objective of this requirement is “to give visibility to the plea agreement process and thus provide the reviewing court with a record containing an accurate and complete account of all relevant circumstances surrounding the guilty plea.” (Ill. Ann. Stat., ch. 110A, par. 402, Committee Comments, at 530 (Smith-Hurd 1976).) In the present case, the only terms of the plea agreement expressly set forth in the record at the hearing held on March 16, 1981, were that the defendant would plead guilty to the present armed-robbery charge and receive a sentence of imprisonment of 18 years. The defendant was also promised that he would receive an 18-year sentence in Ogle County on another armed-robbery charge and that the sentence imposed there would be concurrent with the one he received in the present case. In addition, the State concedes that the record reflects that the Wisconsin, Ogle County, and Federal authorities agreed, as part of the present plea bargain, to impose sentences concurrent with the instant 18-year term of imprisonment. Also, the State agreed to dismiss the home invasion count of the information in this case as well as unrelated charges of home invasion and armed robbery and a fugitive-from-justice complaint based on an armed robbery in Louisiana, all of which charges were currently pending in Winnebago County.

Based on the express terms of the agreement and our examination of the record, it is clear that the defendant’s argument — that “[t]he record here plainly shows that the agreement between the defendant and the State of Illinois included the promise that all other states, including Louisiana, concurred in that agreement and thus the defendant would serve no more than 18 years on all charges” — is unfounded. We note that the defendant’s citations to the record of the March 16, 1981, hearing do not support this position. There is no indication in the record that the State of Louisiana agreed to be bound by the terms of the plea agreement or that Louisiana was otherwise included in the agreement. While the defendant argues on appeal that Ogle County State’s Attorney Schumacher and attorney Man-zullo had reached an agreement that all States, including Louisiana, had concurred in the plea agreement and agreed that the defendant would serve no more than 18 years on all charges, we note that the defendant’s motion to vacate did not contain an affidavit from either of those persons (see 87 Ill. 2d R. 604(d)). Furthermore, when the motion to withdraw was brought up for a hearing in the court below, the defendant did not request an evidentiary hearing on the motion or offer any further proof, by affidavit or otherwise, to support the allegations in his motion. It is well established that, as a minimum, the defendant must establish a factual basis for or give substance to his claim that the prosecutor reneged on a purported condition of the plea agreement; a bare allegation to this effect is not sufficient. (Cf. People v. Martin (1978), 58 Ill. App. 3d 633, 638; People v. Dumas (1977), 50 Ill. App. 3d 637, 641.) Here, it is clear that the defendant made no serious effort to pursue further the bare claims made in his motion to withdraw the plea. In addition, the letter of March 3, 1981, from State’s Attorney Schumacher to attorney Manzullo, standing alone, does not support the defendant’s argument. Any plea bargain agreement between the defendant and Ogle County State’s Attorney Schumacher did not necessarily form the express terms of the subsequent agreement in Winnebago County. Moreover, the letter of March 3 makes no specific reference to the State of Louisiana.

In light of the record in this case, it is manifest that the defendant’s claim that the State breached a condition of the plea agreement is based solely on unsupported allegations. Accordingly, the defendant’s claim that he is entitled to withdraw his guilty plea due to an unfulfilled promise is devoid of merit and must be rejected.

The defendant’s second and alternate contention is that, even if the State fulfilled all the terms of the plea agreement, he nevertheless should have been permitted to withdraw his guilty plea because he was laboring under two misapprehensions of fact: (1) that all jurisdictions with charges pending against him, including the State of Louisiana, had agreed that he would receive an 18-year term of imprisonment; (2) that he would serve his incarceration in a Federal penitentiary.

The well-settled doctrine in this State is that mistaken subjective impressions, in the absence of substantial objective proof showing that they were reasonably justified, do not provide sufficient grounds upon which to vacate a guilty plea. The defendant bears the burden of establishing that the circumstances existing at the time of the plea, judged by objective standards, justified the mistaken impressions. (People v. Hale (1980), 82 Ill. 2d 172, 176; People v. Cohn (1980), 91 Ill. App. 3d 209, 214-15.) Similarly, the fact that the defendant entered a guilty plea under a misapprehension that was not induced by the State or the judge’s conduct is an insufficient ground for the withdrawal of a guilty plea. People v. Cohn (1980), 91 Ill. App. 3d 209, 214; see People v. Paul (1981), 93 Ill. App. 3d 302, 313; People v. Ryan (1979), 74 Ill. App. 3d 886, 890.

With respect to the question of the imposition of concurrent sentences, the record clearly establishes that the Winnebago County State’s Attorney did not promise that Louisiana would be bound by the terms of the plea agreement. Nor is there any evidence in the record that any representative of the State or the court itself induced the defendant’s unfounded belief regarding the imposition of a concurrent sentence in Louisiana. Furthermore, based on our reading of the entire record, it is abundantly clear that the defendant has not provided any objective evidence that reasonably justified his mistaken impression of the substance of the plea agreement. Lastly, although the defendant’s attorney read from the defendant’s letter of July 27, 1981, at the hearing on the petition to withdraw, the defendant neither testified at the hearing on his petition to withdraw his guilty plea nor provided an affidavit; thus, this court had no direct evidence of what the defendant understood at the time of the plea agreement. See People v. Douthit (1977), 51 Ill. App. 3d 758, 763.

We turn lastly to the defendant’s contention that he was under the impression that, as part of the plea agreement, he would be incarcerated in a Federal penitentiary. The record reflects that the question of incarceration in a Federal penitentiary was discussed in the court below prior to the time the court accepted the defendant’s negotiated plea. At one juncture, when the trial court inquired about the involvement of the Federal courts, the defendant acknowledged that no Federal charges were pending against him. At the same time the defendant’s attorney remarked that the Federal court was involved only as far as where the defendant will be serving his time. Shortly thereafter, the following colloquy took place:

“THE COURT: Has your lawyer or anyone else promised you anything except the promises contained in this plea agreement?
THE DEFENDANT: No Sir. Just that they would run concurrent with the federal — the charges going to be brought on me and I’d be serving my time in the federal penitentiary.
THE COURT: All right. Now that agreement is something that you and they must have going with the rest of them.
THE DEFENDANT: Yes Sir.”

Later, the defendant inquired when the Federal authorities would get him; the court responded that it did not know if they ever would. On two occasions, the court below informed the defendant that if it accepted the negotiated plea of guilty, the court would sentence him to 18 years’ imprisonment in the Department of Corrections. The defendant responded that he understood. Subsequently, the court sentenced the defendant to an 18-year term in the Illinois Department of Corrections.

In this case, although there was discussion of a possible sentence in the Federal penitentiary, we do not believe that either the court or the State’s Attorney induced or encouraged the belief that the defendant would be placed in a Federal prison as part of the current plea agreement. In the case at bar, the State’s Attorney, although not objecting to the defendant’s statement that he would serve his time in a Federal correctional institution, did not encourage the defendant’s belief by indicating the defendant’s remark, if it related to his place of imprisonment in this case, was true. (Compare People v. Wadlington (1979), 78 Ill. App. 3d 1072, 1078.) Furthermore, given the facts (1) that the defendant acknowledged that no Federal charges were currently pending against him, (2) that the court admonished the defendant that it would sentence him to 18 years in the Department of Corrections (see People v. Matthews (1974), 17 Ill. App. 3d 395, 400, aff’d (1975), 60 Ill. 2d 123) and (3) that it then sentenced him to the Illinois Department of Corrections, the defendant has failed to satisfy his burden of demonstrating that the facts and circumstances existing at the time of the plea, when judged by objective standards, justified his mistaken impression regarding the place of imprisonment. We note also that that part of the defendant’s motion to withdraw his plea that related to the question of incarceration in a Federal penitentiary is based totally on bare, unsupported allegations regarding a discussion with an FBI agent. Similarly, the defendant did not present an affidavit as part of the motion and did not proffer any testimonial evidence at the hearing on the motion relative to the question of his purported misapprehension of the location of incarceration as a result of his discussion with the agent.

In view of the above analysis and the whole record in this case, the defendant has failed to establish that he was entitled to withdraw his plea of guilty on the ground that he misapprehended the two facts discussed above.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

LINDBERG and NASH, JJ., concur.