933 So.2d 19 (2006)
GREENACRE PROPERTIES, INC., Appellant,
v.
Radhakrishna K. RAO, Appellee.
No. 2D04-5569.
District Court of Appeal of Florida, Second District.
May 3, 2006.
*20 Steven H. Mezer, Keith D. Skorewicz, and Eric N. Appleton of Bush Ross, P.A., Tampa, for Appellant.
Jennifer J. Card of Abbey, Adams, Byelick, Kiernan, Mueller & Lancaster, L.L.P., St. Petersburg, for Appellee.
ALTENBERND, Judge.
Greenacre Properties, Inc., appeals a final judgment in the amount of $9300 in favor of Dr. Radhakrishna K. Rao. We reverse because Dr. Rao was not an intended third-party beneficiary of the contract on which he sued; he was not entitled to damages under section 720.303(5), Florida Statutes (2000), against an entity that was not a homeowners' association; and he was not entitled to damages for lost income under a negligence theory when he had sustained no bodily injury or property damage.

I. THE FIRST LAWSUIT
Dr. Rao owns a home and resides in a community called Van Dyke Farms. As a result, he is a member of the Van Dyke Farms Homeowners' Association ("the Association"). In 1992, the Association entered into a contract with Greenacre Properties, a property management company, for the management of the Association and its community facilities. Under the contract, Greenacre Properties was specifically charged with maintaining the financial records and other records of the Association.
*21 Since 1999, Dr. Rao and the Association have been engaged in a bitter dispute that seems to have been engendered by the construction of a small pond in his yard.[1] Viewed in the light most favorable to Dr. Rao, the evidence presented in this case suggests Greenacre Properties may have advised the Association's board of directors that Dr. Rao was not in compliance with certain restrictive covenants and recommended the Association file suit at a time when Greenacre Properties knew or should have known that there were no existing violations. In May 1999, the Association filed a lawsuit against Dr. Rao and his wife, seeking injunctive relief related to alleged violations of deed restrictions. Dr. Rao responded to the complaint and, as part of his defense, alleged that the Association was selectively enforcing the restrictive covenants against him. Greenacre Properties was not a party to this previous lawsuit.
In October 2000, while this previous lawsuit was pending, Dr. Rao contacted Greenacre Properties and asked to review all files kept by Greenacre Properties for the Association for the period between January 1998 and November 2000. This request was apparently made as an indirect method to obtain discovery in the pending lawsuit between Dr. Rao and the Association. In November, Dr. Rao went to the offices of Greenacre Properties to review these records but was only permitted to review the "official records" of the Association as defined in section 720.303(4). The attorney for the Association had advised Greenacre Properties that it should only permit review of the official records and not all of the records in its possession.
The issues surrounding the production of these documents presumably could have been resolved in the previous lawsuit through motions to compel the Association to produce the documents. Apparently without a resolution of these issues, the lawsuit between the Association and Dr. Rao went to trial in September 2002. At the conclusion of that trial, the trial judge dismissed the Association's complaint for injunctive relief and rejected Dr. Rao's claims of selective enforcement. In his oral pronouncement, the trial judge opined that the protracted litigation between the parties was the result of a simple misunderstanding the parties should have resolved between themselves. The trial judge concluded that Dr. Rao was the prevailing party in the litigation and thus entitled to attorneys' fees pursuant to section 720.305(1). The trial judge limited the award of attorneys' fee to $5545, however, based upon a finding that both parties had incurred unnecessary or unreasonable attorneys' fees during the litigation.

II. THIS LAWSUIT
On January 23, 2001, while the lawsuit between Dr. Rao and the Association was still pending, Dr. Rao filed this lawsuit against Greenacre Properties. One count of the complaint against Greenacre Properties alleged that Greenacre Properties breached its contract with the Van Dyke Farms Homeowners' Association, based upon the theory that Dr. Rao had rights under that contract as a third-party beneficiary. This count claimed that Greenacre Properties breached the contract by failing to produce records to Dr. Rao for inspection, failing to adequately maintain the records of the Association, and failing to provide *22 Dr. Rao with "necessary notices" that the Association was required to send to Dr. Rao.
The second count of the complaint alleged that negligence on the part of Greenacre Properties resulted in damage to Dr. Rao. This count alleged that Greenacre Properties negligently performed its duties under the contract with the Association, specifically related to the requirement to provide certain notices to Dr. Rao or to keep and maintain the Association's records. This count stated, "As a result of [Greenacre Properties] failing to perform their duty under the Agreement, [Dr. Rao] has suffered damages, as well as emotional stress and physical hardships."
As Dr. Rao's case against Greenacre Properties progressed, it became clear that Dr. Rao was seeking as part of his damages the approximately $30,000 he had paid to attorneys to represent him in the lawsuit between him and the Association. Prior to trial, the circuit court ruled that Dr. Rao could not claim these expenses as damages in this action, given that the trial judge in the preceding action had awarded Dr. Rao attorneys' fees but found that the majority of the fees incurred were not reasonable or necessary.
The case proceeded to a nonjury trial, at which Dr. Rao asserted that the 1999 lawsuit initiated by the Association was unfounded and based upon faulty information provided by Greenacre Properties. Dr. Rao also testified about the incident in 2000 when Greenacre Properties denied him access to certain records of the Association when he requested them.[2] Regarding his damages, Dr. Rao testified that he suffered severe emotional distress as a result of the prior litigation with the Association. He asserted he missed seventeen days of work for hearings, depositions, and inspections related to the litigation, seven additional days due to rescheduling various appointments because of the demands of the lawsuit, and thirty-three hours of work for telephone conferences. Dr. Rao, who is a pediatric neurologist, testified he normally receives revenue of $275 per hour or $3000 per day.
After the trial, the circuit court entered a nineteen-page judgment that has all of the indicia of a judgment prepared by plaintiff's counsel.[3] In the judgment, the trial court concluded that Dr. Rao was a third-party beneficiary to the management contract between the Association and Greenacre Properties and that Greenacre Properties had breached the agreement. The court held that Dr. Rao was entitled to statutory damages under section 720.305 in the amount of $500. Finally, the court determined that Greenacre Properties had been negligent in fulfilling, on behalf of the Association, its duties to Dr. Rao concerning these records. The court awarded Dr. Rao $8800 in damages, representing his lost earnings or earning capacity because the earlier lawsuit between the Association and Dr. Rao had distracted Dr. Rao from his professional duties. Accordingly, the trial court entered judgment for Dr. Rao in the total amount of $9300 against Greenacre Properties.[4] We reverse as to all of these decisions.

*23 III. A HOMEOWNER IS NOT GENERALLY A THIRD-PARTY BENEFICIARY TO AN AGREEMENT BETWEEN A HOMEOWNERS' ASSOCIATION AND ITS MANAGEMENT COMPANY
Chapter 720, Florida Statutes (2000), regulates homeowners' associations. Under this chapter, homeowners' associations have certain powers and duties, and must maintain certain records. See § 720.303. It is common for a homeowners' association to contract with a property management company to fulfill some of the association's duties. These contracts may provide incidental benefits to homeowners who are members of the Association, but they are not usually intended to directly benefit the homeowners.
The management agreement between Van Dyke Farms Homeowners' Association and Greenacre Properties is a typical management agreement. Greenacre Properties is required to perform certain functions for the Association. The contract does contain a paragraph that states: "All records kept by [Greenacre] shall be kept at the office of [Greenacre] and shall be available for inspection during [Greenacre's] office hours by association members." The manager, however, is "responsible to the Board of Directors concerning the management and operation of the Association." Greenacre Properties is required to "assist the Board or committees in administering the Rules and Regulations promulgated by the Association." The contract contains an indemnification clause in which the Association agrees to indemnify Greenacre Properties as its "agent."
As a general rule, a person who is not a party to a contract cannot sue for a breach of the contract even if the person receives some incidental benefit from the contract. A third party must establish that the contract either expressly creates rights for them as a third party or that the provisions of the contract primarily and directly benefit the third party or a class of persons of which the third party is a member. See Caretta Trucking v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1031 (Fla. 4th DCA 1994).
This contract creates no express rights for the homeowners vis-a-vis Greenacre Properties. While the homeowners may incidentally benefit from the record-keeping efforts of Greenacre Properties, it cannot be disputed that Greenacre Properties is performing that function primarily for the Association to assure that the Association fulfills its legal obligations under chapter 720. In a similar context involving a condominium association, this court has held that the condominium owners were not third-party beneficiaries of a management agreement entered into between a condominium association and its management company. See Clearwater Key Ass'n  S. Beach, Inc. v. Thacker, 431 So.2d 641, 645 (Fla. 2d DCA 1983).
In holding that Dr. Rao was an intended third-party beneficiary, the trial court's judgment relied on Hialeah Hospital, Inc. v. Raventos, 425 So.2d 1205 (Fla. 3d DCA 1983). In that case, however, Hialeah Hospital sought payment of a debt pursuant to a contract between two individuals that specifically asserted that there were debts owed to Hialeah Hospital and designated who would be responsible to pay the debts to the hospital. Further, the case involved an order dismissing a complaint for failure to state a cause of action, and the holding asserted simply, "[W]e are unable at this stage of the pleadings to draw the . . . conclusion that . . . Hialeah Hospital, Inc., was a mere incidental beneficiary." Id. at 1205.
*24 To the extent Dr. Rao's breach of contract claim involves Greenacre Properties' refusal to provide Dr. Rao access to certain records of the Association, the merits of his claim are particularly tenuous. Under the facts of this case, the Association instructed Greenacre Properties, as its agent, not to produce certain documents to Dr. Rao. We do not need to decide whether Dr. Rao was entitled to see the documents he requested under the broad language of the contracts, even if the documents were not official records for purposes of chapter 720. We merely determine that Greenacre Properties was an agent with but one master. When the Association ordered Greenacre Properties not to disclose these documents, Greenacre Properties was entitled, if not required, to obey that instruction. There is nothing in the contract or in chapter 720 that would create an obligation on the part of Greenacre Properties to obey the varying commands of individual homeowners, especially when they conflict with the instructions of the Association with whom it had a written agency agreement. Whether the documents were subject to production was a matter between the Association and Dr. Rao that could have been sorted out in their lawsuit; it was not a matter that Dr. Rao could directly enforce under third-party rights. Accordingly, the trial court erred as a matter of law when it concluded that Greenacre Properties had breached a contractual duty that it owed to Dr. Rao.

IV. GREENACRE PROPERTIES IS NOT A HOMEOWNERS' ASSOCIATION SUBJECT TO THE PENALTIES CONTAINED IN SECTION 720.303
The judgment recites that Dr. Rao is entitled to $500 in statutory damages for the failure of Greenacre Properties to comply with section 720.303(5).[5] Section 720.303(5) addresses a homeowners' association's obligation to maintain official records that are open and available for inspection by members of the association. Under section 720.303(5)(b), "a member who is denied access to official records is entitled to the actual damages or minimum damages for the association's willful failure to comply with this subsection." "Minimum damages" are defined as $50 per day for a maximum of ten days.
At the outset, we must note that Dr. Rao did not plead a cause of action under the statute, and we can find no reference to section 720.303(5) in the complaint. Even if Dr. Rao had sought such relief in his pleadings, he would not have stated a valid cause of action against Greenacre Properties. An "association" for purposes of this statute is defined in section 720.301(7) as "a Florida corporation responsible for the operation of a community... in which the voting membership is made up of parcel owners." This definition does not include a property management company. This definition of "association" does, of course, describe an entity such as Van Dyke Farms Homeowners' Association. Simply put, Greenacre Properties is not an association and nothing in chapter 720 would permit the trial court to impose these statutory "minimum damages" against an agent that the Association relied upon or contracted with to perform its statutory duties. If Dr. Rao wanted to recover this statutory claim, he was required to sue Van Dyke Farms Homeowners' Association for the statutory violation. Accordingly, the trial court erred in imposing this award of statutory minimum damages.

*25 V. NO CLAIM FOR DAMAGES IN NEGLIGENCE EXISTS IN THE ABSENCE OF PHYSICAL IMPACT OF BODILY INJURY
It is doubtful that count II of Dr. Rao's complaint even stated a cause of action for negligence against Greenacre Properties. The alleged theory is essentially that Greenacre Properties' negligence in maintaining the records of the Association resulted in unspecified "damages" and "emotional stress and physical hardships." The complaint does not allege that Greenacre Properties breached any traditional standard of care in negligence that resulted in bodily injury or property damage.[6]
The final judgment stated that Greenacre Properties owed a duty to Dr. Rao based on a case in which a hotel owed a duty to a guest who slipped and fell in a bathtub and sustained bodily injuries. See Cooper Hotel Servs., Inc. v. MacFarland, 662 So.2d 710 (Fla. 2d DCA 1995). With all due respect to the author of this judgment, we fail to see the comparison. The final judgment also contains a discussion of a breach of a fiduciary duty owed by Greenacre Properties to the members of the Association when no such theory was ever alleged in the complaint.
The trial court's judgment contains a paragraph in bold in which the court finds that Dr. Rao did not present "sufficient evidence to show that he suffered either a physical injury or illness which manifested itself as emotional distress," and thus Dr. Rao was barred from recovering damages for emotional distress. Thereafter, however, the judgment states that Dr. Rao sustained thirty-two hours of lost earnings at the rate of $275 per hour due to the negligence of Greenacre Properties and thus awards Dr. Rao damages of $8800.
The author of the final judgment has misread the supreme court's decision in Rowell v. Holt, 850 So.2d 474 (Fla.2003). The final judgment recognizes that, as a general rule, a party cannot recover damages for emotional distress in the absence of physical injury or illness. However, this "impact doctrine" or "impact rule," which is explained in a long line of cases including Rowell and R.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla.1995), does not merely prevent an award of monetary damages representing a party's "emotional distress" while permitting recovery for other types of damages. Rather, this doctrine generally requires proof of a physical injury or illness before a plaintiff is permitted to recover any type of damages awardable under a negligence theory.
Given that the "impact rule" prevents the award of Dr. Rao's lost wages in this case, we hesitate to further muddy the waters of the dreaded economic loss rule by addressing its application to this case. Suffice it to say that a negligence claim must generally allege a bodily injury or property damage; a negligence claim for purely economic losses is recognized in only very limited circumstances. See Monroe v. Sarasota County Sch. Bd., 746 So.2d 530, 531 (Fla. 2d DCA 1999). When members of a homeowners' association can allege statutory and contractual claims against the association for purely economic damages, we see no reason to create a special negligence cause of action for the members against an agent of the association that has contractual responsibilities to perform the statutory duties of the association.
*26 We also hesitate to discuss a theory of breach of fiduciary duty that was never pleaded. Dr. Rao failed to establish that he had a contractual relationship with Greenacre Properties, that he was a third-party beneficiary of a contract between Greenacre Properties and the Association, or that he has any claim in negligence against Greenacre Properties to compensate him for his lost earnings. A fiduciary relationship is not easily defined, but an essential aspect of such a relationship is a level of trust and confidence by the plaintiff that has been bestowed upon and accepted by the defendant. See Doe v. Evans, 814 So.2d 370, 374 (Fla.2002). We see nothing in the indirect relationship between an association's members and the agents performing the association's duties under a written contract that would create a fiduciary duty affecting the matters described in the complaint. Dr. Rao has not provided any precedent for such a theory in this appeal.
Because Dr. Rao failed to present evidence supporting any valid cause of action against Greenacre Properties, whether for breach of contract, a statutory violation, or negligence, we reverse the final judgment entered in favor of Dr. Rao and instruct the trial court to enter judgment in favor of Greenacre Properties on remand.
Reversed and remanded.
WHATLEY and CASANUEVA, JJ., Concur.
NOTES
[1]  Just as it is doubtful that the Defenestration of Prague was the actual cause of the Thirty Years' War in 1618, it is unlikely that Dr. Rao's pond, all by itself, precipitated the subsequent litigation. It is the only explanation in the record, though, and an adequate one for our purposes.
[2]  It is important to note that Dr. Rao did not identify any specific document that he was not shown that would have affected the lawsuit between him and the Association. Thus, there was no evidence that Greenacre Properties' failure to disclose a particular document caused any specific damage to Dr. Rao.
[3]  Dr. Rao's counsel in this appeal is not the attorney who represented him before the circuit court.
[4]  We note that the Association has a contractual obligation to indemnify Greenacre Properties in this case. As such, it appears that this lawsuit might have been pursued to obtain damages from the Association that Dr. Rao had not successfully recovered in the first trial.
[5]  Dr. Rao has asserted that this recitation makes Dr. Rao the prevailing party in this litigation under chapter 720, entitling him to attorneys' fees. See § 720.305(1).
[6]  We note that Dr. Rao made no attempt to assert a claim for malicious prosecution against the Association or Greenacre Properties and failed to present any evidence that Greenacre Properties committed any intentional tort in this regard.


54 F.3d 784
Steven D. Turnerv.Mary Ann Young
NO. 95-1546
United States Court of Appeals,Eighth Circuit.
Mar 24, 1995
Appeal From:  W.D.Mo., No. 94-CV-898

1
AFFIRMED.


843 F.2d 1140
HAMPTON FOODS, INC., Appellee,v.The AETNA CASUALTY AND SURETY CO., Appellant.
No. 87-1038.
United States Court of Appeals,Eighth Circuit.
Submitted Oct. 14, 1987.Decided April 6, 1988.Rehearing Denied May 4, 1988.

Gary P. Paul, Clayton, Mo., for appellant.
John A. Walsh, Jr., St. Louis, Mo., for appellee.
Before LAY, Chief Judge, and ARNOLD and BOWMAN, Circuit Judges.
BOWMAN, Circuit Judge.

1
The Aetna Casualty and Surety Company (Aetna) appeals from an order of the District Court holding Aetna liable under a business interruption insurance policy for accrued interest on the indebtedness of the insured, Hampton Foods, Inc.  (Hampton).

2
This case is before us for the second time.  The first appeal was from the District Court's decision that Aetna's policy provided coverage for losses suffered by Hampton when Hampton was forced to vacate a building that was in danger of collapsing, but that denied recovery to Hampton for lost profits and accrued interest on alleged corporate indebtedness, as well as prejudgment interest and penalties for vexatious refusal to pay.  We affirmed the finding of coverage, the denial of liability for lost profits, prejudgment interest, and penalties for vexatious refusal to pay, and reversed and remanded on the issue of Aetna's liability for accrued interest on Hampton's alleged corporate indebtedness.   Hampton Foods, Inc. v. Aetna Casualty and Sur. Co., 787 F.2d 349 (8th Cir.1986) (Hampton Foods I ).  A more detailed discussion of the factual background pertinent to the present appeal is contained in that opinion.   See Hampton Foods I, 787 F.2d at 351.

3
On remand the District Court was to determine whether and to what extent Aetna should be held liable for the accrued interest on Hampton's alleged corporate indebtedness.  In order to make that determination, the District Court needed to resolve the following issues:  1) whether the relevant loans were used for Hampton's business purposes;  2) whether Hampton incurred interest expenses from the loans and, if so, the magnitude of those expenses;  3) the extent to which Hampton would have been able to pay its interest charges had its business not been interrupted;  and 4) the time period for which Hampton's accrued interest charges are recoverable.   See Hampton Foods I, 787 F.2d at 354-55.  Aetna contends that the District Court erroneously resolved the first, second, and fourth issues and failed to deal with the third.

4
The principal issues on appeal are whether the District Court's findings of fact are adequate with respect to the issues we remanded and, if so, whether the findings are clearly erroneous.  See Fed.R.Civ.P. 52(a).1

I.

5
In Hampton Foods I we held that Aetna could be held liable only "for interest on that portion of the loans used for Hampton's business purposes."   Hampton Foods I, 787 F.2d at 354.  Thus, the District Court was to determine on remand whether the loans underlying the interest charges at issue were used for the business purposes of Hampton.  The District Court found that the loans were so used.

6
A number of loans were made to Don and Joyce Hipp, the principals of Hampton, and apparently were used in their business.  But insofar as this appeal is concerned, the argument is over a single $140,000 loan from the Bank2 to the Hipps.3   The District Court found that this loan was used for Hampton's business purposes, a finding Aetna attacks as clearly erroneous.  We disagree with Aetna.

7
Shortly after receiving this loan, the Hipps loaned $140,000 to Hampton.  Aetna argues that the $140,000 Bank loan could not have been "used for Hampton's business purposes" because it was made to the Hipps in their individual capacities before Hampton was established.  This argument is, of course, a non sequitur.  As Hampton points out, the entire $140,000 later was loaned by the Hipps to Hampton to be used in the business.  The question we asked the District Court to answer on remand was not, as Aetna suggests, to whom the Bank made the loan, but whether the loan was "used for Hampton's business purposes."   Hampton Foods I, 787 F.2d at 354.  The District Court answered that question affirmatively.  Since the entire $140,000 was put into Hampton's business, we cannot say that the District Court's finding is clearly erroneous.

II.

8
On remand the District Court was to determine whether Hampton in fact had incurred interest expenses and, if so, the magnitude of those expenses.   See Hampton Foods I, 787 F.2d at 354.  The District Court found that Hampton had incurred an interest obligation on the loan extended by the Hipps to Hampton.  The court also determined the amount of that obligation.

9
Aetna contends that Hampton did not incur any interest obligation.  Having reviewed the record, however, we do not believe that the District Court's finding is clearly erroneous.  It is undisputed that the Hipps extended Hampton a loan of the same size and at the same rate of interest as was provided to the Hipps by the Bank.  The Hipps, practically speaking, simply served as a conduit for the funds.  There is evidence that Hampton became liable for principal and interest, and even made payments on the loan directly to the Bank.  We therefore have no basis for overturning as clearly erroneous the finding that Hampton incurred an interest obligation commensurate with the interest obligation on the loan from the Bank to the Hipps.

III.

10
In Hampton Foods I we held that Hampton's interest expenses "are includable in its damages to the extent Hampton would have been able to pay these charges [out of its business income] had the building difficulties not occurred" and remanded this issue to the District Court for resolution.   Hampton Foods I, 787 F.2d at 354.

11
On remand the District Court failed to make a finding of fact on this crucial issue.  We agree with Aetna that this was error.  Apparently, the District Court did not realize that the issue needed to be decided.  See Designated Record (D.R.) at 243.  (District Court states that "Eighth Circuit held that two issues ... needed to be resolved by this trial court," the first being whether the loan was for business purposes and the second being the duration of the theoretical period of restoration).

12
This factual issue must be resolved before liability may be imposed on Aetna.  Aetna's liability for interest charges is limited to the interest charges that Hampton would have been able to pay from income generated by its business had the building problems not arisen.  To the extent that Hampton could not have met its interest obligations even if it had remained open for business, Aetna cannot be held liable for the interest charges that Hampton incurred while its business was closed.  As factfinding is the basic responsibility of the district courts, this crucial issue should not be dealt with for the first time on appeal.   See Pullman-Standard v. Swint, 456 U.S. 273, 291-92, 102 S.Ct. 1781, 1791, 92, 72 L.Ed.2d 66 (1982);  DeMarco v. U.S., 415 U.S. 449, 450 n., 94 S.Ct. 1185, 1186 n., 39 L.Ed.2d 501 (1974).  In circumstances where, as here, the necessary findings of fact have not been made at trial, "the appropriate course of action is to vacate the judgment and remand the case to the District Court."   Rule v. International Ass'n of Bridge Workers Local 396, 568 F.2d 558, 568 (8th Cir.1977).   See Pullman-Standard, 456 U.S. at 292 n. 22, 102 S.Ct. at 1792 n. 22 (1982);  Fogarty v. Piper, 767 F.2d 513, 515 (8th Cir.1985);  5A J. Moore & J. Lucas, Moore's Federal Practice p 52.06 (2d ed. 1987).  We therefore remand this case to the District Court with directions that it make a finding on this pivotal question of fact.

IV.

13
In Hampton Foods I we remanded the issue of "the time period for which Hampton's continuing interest charges are recoverable."   Hampton Foods I, 787 F.2d at 355.  But before doing so, we discussed the approach the District Court was to use to resolve this issue.  We first examined the period of coverage contemplated by the insurance policy and noted:

14
The policy covers losses "during the period of restoration."    Part III, subsection C [of the policy], defines "period of restoration" as

15
[t]he length of time, commencing with the date of damage or destruction, which would be required, with the exercise of due diligence or dispatch, to repair, or rebuild or replace the damaged or destroyed property.

16
It is clear that this language contemplates the "theoretical time period it would have taken to" reenter business.   Omaha Paper Stock Co. v. Harbor Ins. Co., 596 F.2d 283, 290 (8th Cir.1979).

17
Hampton Foods I, 787 F.2d at 355 (emphasis in original).  We then indicated that the time period for which interest charges are recoverable could extend beyond the theoretical period of restoration under the approach taken by the court in Omaha Paper Stock Co. v. Harbor Ins. Co., 445 F.Supp. 179 (D.Neb.1978), aff'd, 596 F.2d 283 (8th Cir.1979).  In that case "the court used the standard of a theoretical period of restoration but allowed a reasonable extension of that period where restoration delay was due to actions of the insurance company."   Hampton Foods I, 787 F.2d at 355.  This was the approach that the District Court was to apply on remand.

18
Under the Omaha Paper Stock approach, Aetna should be liable for business interruption coverage for the duration of the reasonable period of time needed for Hampton to reenter business plus any delay attributable to Aetna's failure to perform its duties under the policy, but not for any period of delay caused by other obstacles to restoration such as Hampton's alleged lack of due diligence or poor financial condition.  The District Court concluded that "the record clearly indicates that [Aetna's] refusal to pay [Hampton] amounts owed to it under the terms of the insurance policy prevented the prompt restoration of [Hampton's] business," D.R. at 244, and noted that it believed that Hampton would have received financing to restore the business had Aetna paid what it owed under the insurance policy.  D.R. at 244.  The District Court rejected Aetna's contention that the delay was (even partly) due to Hampton's failure to act with due diligence or to its poor financial condition.  In short, the District Court found that but for Aetna's refusal to pay the amount it owed Hampton under the policy, Hampton could have promptly restored its business and, therefore, the delay in restoration was attributable to Aetna.

19
Aetna argues that even if it had paid what it owed under the policy, the Bank would not have provided the financing needed to restore Hampton's business.  Citing Hampton's outstanding debts and lack of assets, Aetna maintains that Hampton's poor financial condition precluded such a loan and that the District Court's finding to the contrary is clearly erroneous.

20
The record, however, provides support for the District Court's finding.  A letter from the Bank indicates that had Aetna promptly paid what it owed Hampton, and had Hampton in turn used the insurance proceeds to reduce what was owed to the Bank, the Bank would have provided the Hipps with financial assistance to restore their business.  The letter, dated August 10, 1983 and written by Paul Siebels, then a Bank vice president, states in pertinent part:

21
Under the policy of our bank, had the Hipps, operating as Hampton Foods, Inc., been able to reduce the outstanding obligation by one-hundred-thousand dollars ($100,000.00), or more, within a few months after their loss in the summer of 1980, the bank would have assisted the Hipps with financing to reestablish a retail grocery business, based on the satisfactory performance on their credit with the bank.

22
Plaintiff's Exhibit no. 11.  The evidence indicates that during the summer of 1980 Hampton had assets, consisting largely of its claim against Aetna, worth approximately $100,000.  In other words, had Aetna paid Hampton's claim, Hampton would have had approximately $100,000 at its disposal, which it could have used to satisfy the Bank's conditions for new financing to restore the business.

23
Aetna argues that Siebels's letter should not be given much evidentiary weight.  Pointing to Siebels's testimony before the District Court, Aetna emphasizes that Siebels says, contrary to his letter, that there was no guarantee that the Bank would have provided the financing.  But the weighing of the evidence and the assessment of apparent inconsistencies or conflicts in the evidence is for the trier of fact, not for a court of appeals.  Even if we would have weighed the evidence differently, under the clearly erroneous standard of review of Fed.R.Civ.P. 52(a), we would not be entitled to reverse the finding of the District Court.   Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).  While it may not have been a certainty that the Bank would have provided the financing, the evidence sufficiently supports the finding made by the District Court.  Because the District Court's view of the evidence is plausible in light of the record viewed in its entirety, we hold that its finding is not clearly erroneous.   See Anderson, 470 U.S. at 573-74, 105 S.Ct. at 1511-12.

24
Nor are we persuaded by Aetna's argument that as a matter of law Hampton failed to act with due diligence.  Aetna maintains that in addition to attempting to find financing the Hipps should have taken "other steps" to restore the business.  These "other steps" are, presumably, such things as arranging for a building, equipment, suppliers, a work force and so on.  See Brief of Appellant Aetna at 29.  But as the District Court observed, restoration of the business required financing, and to obtain financing Hampton needed the money owed it under the insurance policy.  Thus, when Aetna refused to pay, Hampton had no opportunity to restore the business.  D.R. at 245.  We do not believe that "due diligence" requires the doing of useless acts, and, for that reason, do not believe that Hampton was required to locate a building, suppliers, equipment, et cetera, for a business that, absent payment by Aetna, had no chance of being restored.4   Moreover, there is nothing in the record to suggest that Hampton could not have obtained the other things needed for the restoration of its business had the necessary financing been available.

25
Having found that the delay in restoration resulted from Aetna's conduct and not from Hampton's financial condition or lack of due diligence, the District Court held Aetna liable for interest expenses accruing during the delay.  Additionally, the District Court found Aetna liable for the interest expenses accruing over a six-month theoretical period of restoration, to begin upon payment by Aetna of its interest expense obligation.  D.R. at 245-46.  We find this consonant with the approach in Omaha Paper Stock.    In essence, it puts Hampton in the position it would have been in had Aetna not caused a delay in restoration.

26
The District Court also states, however, that the amount it adjudges Aetna to owe Hampton "includes $6,550.20 for a 180-day extension of the restoration period at $36.64 per day.  The 180 days shall begin upon entry of the Court's order."    D.R. at 246.  We have questions regarding this 180-day extension, such as, what the basis is for it and whether it was intended to run concurrently with the six-month theoretical period of restoration.  We agree with the District Court that application of the Omaha Paper Stock approach would require Aetna to pay for the interest expenses accruing during the period of delay found to have been caused by Aetna and the six-month theoretical period of restoration.  But because we do not understand (nor apparently do the parties) the purpose or meaning of the 180-day extension, and because it is not apparent to us how this extension can be justified under Omaha Paper Stock, we ask the District Court to re-think this aspect of any judgment it may award to Hampton after further proceedings on remand.

V.

27
In summary, we hold that the District Court's findings of fact concerning the purpose of the $140,000 loan, the magnitude of Hampton's interest obligation, and the causal connection between Aetna's failure to pay Hampton's claim and the delay in the restoration of Hampton's business are not clearly erroneous.  However, the question of the extent to which Hampton could have paid its interest expenses had it remained open for business must be answered before liability may be imposed on Aetna.  For this reason, the District Court's order must be vacated and the case remanded for further proceedings.

28
If on remand the District Court finds that had Hampton remained open for business it nevertheless would have been unable to meet its interest obligations, then Aetna cannot be held liable for Hampton's interest expenses.  On the other hand, to the extent that the District Court finds Hampton could have paid its interest expenses had it remained in business, Aetna is liable for those expenses.  In ordering this remand, we point out that Hampton's total recovery of interest expenses should not exceed (1) its interest expenses for the period of delay caused by Aetna's failure to pay, plus (2) its interest expenses for the theoretical six-month period of restoration once payment is made.

29
The order of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.

1
 Each of the issues is entirely an issue of fact, except the fourth issue, which involves, in addition to purely factual questions, the question of whether the District Court properly applied Omaha Paper Stock Co. v. Harbor Ins. Co., 445 F.Supp. 179 (D.Neb.1978), aff'd, 596 F.2d 283 (8th Cir.1979)

2
 The "Bank" in this opinion refers to Hampton Metro Bank

3
 Appellant presents no arguments specifically addressing any loans other than the $140,000 loan

4
 The conduct of Hampton sharply contrasts with that of the insured in Omaha Paper Stock, where the insured was found to have acted without due diligence.  There the insured added to the delay in restoration by "consciously ignor[ing] an apparent mistake made by the insurer" and failing to act in a manner "dictated by good business practice."   Omaha Paper Stock, 445 F.Supp. at 187


                                    2018 IL App (1st) 152616

                                                                          SIXTH DIVISION
                                                                       FEBRUARY 13, 2018

No. 1-15-2616

THE PEOPLE OF THE STATE OF ILLINOIS,                        )      Appeal from the
                                                            )      Circuit Court of
            Plaintiff-Appellee,                             )      Cook County.
                                                            )
v.                                                          )      No. 13 CR 22405
                                                            )
JARROD CURRY,                                               )      Honorable
                                                            )      Carol M. Howard,
             Defendant-Appellant.                           )      Judge Presiding.

       JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
       Justices Connors and Delort concurred in the judgment and opinion.

                                           OPINION

¶1     Following a bench trial, the defendant-appellant, Jarrod Curry, was convicted of armed

violence (count I), possession of a controlled substance with intent to deliver more than 15 grams

but less than 100 grams of heroin (count II), and possession of a controlled substance with intent

to deliver less than 1 gram of cocaine within 100 feet of a park (count III). He was sentenced to

15 years’ imprisonment on count I, 15 years’ imprisonment on count II, and 5 years’

imprisonment on count III, with all three sentences to run concurrently. The defendant now

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

in part, vacate the judgment in part, order the mittimus to be corrected, and order the fines and

fees to be corrected.

¶2                                      BACKGROUND

¶3     At the defendant’s bench trial, Sergeant David Koenig, Officer Jose Rojas, and Officer

Richard Piek of the Chicago Police Department testified on behalf of the State. The officers
1-15-2616

testified that on October 19, 2013, at 8:40 a.m., 12 police officers executed a search warrant at the

second-floor rear apartment at 1444 South Trumbull Avenue, Chicago, Illinois. The search

warrant was based on a report that a man named “Tony” was selling drugs out of that apartment.

The officers were all in civilian dress, but were readily identifiable as police officers because

they wore vests, outer stars, weapons, radios, handcuffs, and duty belts. The police officers

approached the apartment from the rear alley and saw the defendant standing on the second-floor

landing near the back door of the apartment. They saw the defendant turn, face them, and “pull

like his right side, like the waistband area, and proceed to run into the second-floor apartment,”

closing the door behind him. Within minutes, the police officers knocked on the door, yelled

“Chicago Police,” and made a forced entry through the back door.

¶4     Once inside, Officer Rojas saw the defendant running toward the front door and pursued

him into the interior stairwell. Sergeant Koenig and Officer Piek followed a few feet behind

Officer Rojas. Once they were inside the interior stairwell, Officer Rojas observed the defendant

“go into his right waistband area along with his right hand and his left hand go into the [front

sweatshirt pocket]” and discard two items onto the second-floor landing. Sergeant Koenig also

saw the defendant retrieve something from the right side of his body and “flee as he was

discarding the items.” Officer Rojas picked up the discarded items, which consisted of a “plastic

baggie containing numerous pink tinted Ziploc baggies of suspect heroin,” and a .25-caliber

Beretta with six live rounds, including one in the chamber. Sergeant Koenig pursued the

defendant down the stairs and out of the building, where the defendant was detained by two

officers who had been waiting on the sidewalk.

¶5     The police officers searched the apartment. They found two females who lived in the

apartment. They also recovered “three rubber band pink tinted Ziploc baggies of suspect heroin,

                                                -2
1-15-2616

as well as four clear plastic knotted baggies of suspect crack cocaine, and [$37] on top of the

kitchen cabinet.”

¶6      The police officers then took the defendant to the police station, where Officer Rojas and

Officer Piek interrogated him. Both officers testified that the defendant told them he was selling

heroin and crack for a guy named “Young Money,” who dropped drugs off at the apartment

every day at 7 a.m. He also told them that he had been living in the apartment for a couple of

months and that the drugs and gun belonged to him and “not the girl that was in the apartment.”

The defendant explained that he had the gun because “he didn’t want to be robbed or stuck up by

someone or a crew.”

¶7      The parties stipulated that Daniel Bryant, a forensic scientist with the Illinois State

Police, would testify that 38 items found by the police in the apartment tested positive for 15.2

grams of heroin and another item tested positive for 0.1 gram of cocaine.

¶8      After the State rested, the trial continued with the defendant’s testimony. The defendant

testified that, on October 19, 2013, he went to retrieve a bus card from his friend, Charita, who

lived at the apartment. He arrived at the apartment at 8 a.m. and was there with Charita and her

mother for 15 minutes when the police officers came in with guns drawn and masks on. He put

his hands up when told to do so by the police. The police officers then put defendant in

handcuffs in the living room while they searched the apartment. Two officers emerged from the

kitchen and showed the gun and drugs to the defendant, saying “We found your merch.” The

defendant told the officers that they could put it back in their pockets as that is where they got it

from.

¶9      The defendant denied that he ever told the police officers that he had a gun for protection,

that he sold drugs, or that he worked for someone named “Young Money.” He further denied that

                                                -3
1-15-2616

he ran, threw a gun, or threw any drugs. The defense rested after his testimony.

¶ 10   At the end of the trial, the court stated that it found the officers to be more credible than the

defendant. The trial court then found the defendant guilty of armed violence (count I), possession

of a controlled substance with intent to deliver more than 15 grams but less than 100 grams of

heroin (count II), and possession of a controlled substance with intent to deliver less than 1 gram

of cocaine within 100 feet of a park (count III). In finding the defendant guilty of armed

violence, the court stated: “In this situation, the officers saw the defendant with both the drugs and

the gun. So he was armed with a gun at the same time that he had the drugs on his possession.”

¶ 11   The trial court sentenced the defendant to 15 years’ imprisonment on count I, 15 years’

imprisonment on count II, and 5 years’ imprisonment on count III, with all three sentences to run

concurrently. The defendant subsequently filed this notice of appeal.

¶ 12                                        ANALYSIS

¶ 13   We note that we have jurisdiction to review the trial court’s order, as the defendant filed a

timely notice of appeal. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. Dec. 11, 2014).

¶ 14   The defendant now makes four separate arguments: (1) that the State failed to prove him

guilty of armed violence beyond a reasonable doubt where there was insufficient evidence that

he had immediate access to or timely control over the gun, (2) that, alternatively, this court must

vacate his conviction for possession of a controlled substance with intent to deliver more than 15

grams but less than 100 grams of heroin because it violates the one-act, one-crime rule, (3) that

this court should correct the mittimus to clarify that he was sentenced for committing a Class X

felony and not, as it currently states, sentenced as a Class X offender, and (4) that his fines and

fees order must be corrected to vacate the $5 electronic citation fee and to apply presentence

                                                 -4
1-15-2616

custody credit against the assessed $15 state police operations “fee” and $50 court system “fee,”

which are actually fines subject to offset. We take each argument in turn.

¶ 15   The defendant first argues that the State failed to prove him guilty of armed violence

beyond a reasonable doubt. Relying on People v. Smith, 191 Ill. 2d 408 (2000), the defendant

claims that in order to be convicted of armed violence, a defendant must have immediate access

or timely control over a weapon at the time he is confronted by police. The defendant argues that

he discarded the gun “mere moments” into his flight from the police and before his arrest, and

thus, his armed violence conviction is contrary to the purpose of the armed violence statute.

¶ 16   We note that the parties disagree over the standard of review. The defendant claims that

because the relevant facts are not in dispute, we must review this issue de novo. The State argues

that the defendant is challenging the sufficiency of an element of the armed violence conviction,

so that we should review the evidence in the light most favorable to the prosecution and ask if

any rational trier of fact could have found guilt proven beyond a reasonable doubt. We agree

with the State. De novo review applies only when the facts are not in dispute and the defendant’s

guilt is a question of law. Id. at 411. While the defendant’s brief refers to the State’s evidence

that he discarded the gun while fleeing from the police, he does not acknowledge that there were

disputed facts at trial. Significantly, at trial, the defendant denied that he possessed a gun,

possessed drugs, or ran from the police. The defendant’s guilt is not a question of law, as he is

challenging the sufficiency of the evidence to prove an element of the armed violence

conviction, that is, whether he was “armed.” Accordingly, we must determine whether, after

viewing the evidence in the light most favorable to the State, any rational trier of fact could have

found the essential elements of the crime charged beyond a reasonable doubt. People v.

Beauchamp, 241 Ill. 2d 1, 8 (2011).

                                               -5
1-15-2616

¶ 17   A person commits armed violence when he commits certain felonies, including

possession of drugs with intent to deliver, “while armed with a dangerous weapon.” 720 ILCS

5/33A-2(a) (West 2012). Our supreme court has emphasized that the statute’s purpose is to deter

felons from using dangerous weapons, thereby minimizing the deadly consequences that may

result when a felony victim resists. People v. Condon, 148 Ill. 2d 96, 109 (1992).

¶ 18   We agree with the State that the armed violence statute does not require a defendant to be

armed at the time of an arrest. Rather, the plain reading of the statute requires a defendant to be

armed during a confrontation with police or during the commission of a felony offense.

¶ 19   The defendant’s reliance on Smith is misplaced. In Smith, our supreme court reversed the

defendant’s conviction for armed violence “because he dropped the gun out of the window as

soon as he became aware that police were approaching,” and thus “exhibited no propensity to

violence.” Smith, 191 Ill. 2d at 412-13. The court focused on the fact that the defendant did not

have “ ‘immediate access to’ ” or “ ‘timely control over’ ” a weapon when the police entered his

building. Id. (quoting Condon, 148 Ill. 2d at 110). However, there was no evidence, let alone any

discussion by the court, that the defendant possessed the weapon during his underlying felony of

unlawful possession of a controlled substance.

¶ 20   We find People v. Harre, 155 Ill. 2d 392 (1993), to be more instructive regarding

resolution of the issue raised by the defendant. There, our supreme court upheld the defendant’s

armed violence conviction partly because the circumstantial evidence “supported the inference”

that the defendant possessed a gun during a drug delivery. Id. at 400. The court rejected the

defendant’s argument that he could not be convicted of armed violence because he abandoned

his initial intention to open a car passenger door and grab a gun when he saw the police. Id. at

401. The court stated that “the determination of whether a defendant is armed is not made at the

                                                 -6
1-15-2616

moment of arrest. Rather, armed violence occurs if a defendant commits a felony while having

on or about his person a dangerous weapon or if a defendant is otherwise armed.” (Emphasis

omitted.) Id.

¶ 21   This court has previously interpreted the principle culled from Smith and Harre to be that

“a defendant is not guilty of armed violence unless he possesses a weapon at a time when there is

the immediate potential for violence, such as during a drug transaction or an escalating

encounter with the police”; “whether or not the immediate potential for violence exists will

depend on the unique facts of each case.” (Emphasis added.) People v. Anderson, 364 Ill. App.

3d 528, 542 (2006).

¶ 22   We now apply this principle to the case at hand. The police officers testified that they

saw the defendant throw the loaded gun and drugs as he ran, that the defendant admitted to

selling drugs, and that the defendant told them he carried a gun because “he didn’t want to be

robbed or stuck up by someone or a crew.” Based on this circumstantial evidence, it was

reasonable for the trial court to find that the defendant possessed a gun while committing the

felony of possessing drugs with the intent to deliver, especially because the trial court found the

police officers’ testimony to be credible. In his argument before this court, the defendant does

not dispute that he possessed a gun while selling drugs. Instead, he focuses his argument solely

on his physical separation from the gun immediately prior to his arrest. Possessing a gun during

a drug transaction presents a potentially violent situation that the armed violence statute is

specifically designed to address. Thus, the possession of the gun while possessing drugs with the

intent to deliver establishes the defendant’s guilt, regardless of how quickly he threw away the

gun as he fled from the police. Accordingly, we affirm the defendant’s armed violence

conviction.

                                               -7
1-15-2616

¶ 23   The defendant next argues that, alternatively, this court must vacate his conviction and

sentence for possession of a controlled substance with intent to deliver more than 15 grams but

less than 100 grams of heroin. He claims that this conviction arose out of the same physical act

as his conviction for armed violence, which violates the one-act, one crime rule.

¶ 24   The State responds that in 2009, the legislature changed the sentencing statute (730 ILCS

5/5-8-4(d) (West 2012)), creating clear legislative intent to provide for separate convictions for

armed violence and possession of a controlled substance with intent to deliver, and so there is no

violation of the one-act, one-crime rule.

¶ 25   The defendant acknowledges that he did not preserve this issue, but he contends that it is

reviewable under the plain error doctrine. See People v. Thompson, 238 Ill. 2d 598, 611 (2010)

(“To preserve a claim for review, a defendant must both object at trial and include the alleged

error in a written posttrial motion.”). The plain error doctrine “bypasses normal forfeiture

principles and allows a reviewing court to consider unpreserved claims of error in specific

circumstances.” Id. at 613. “We will apply the plain-error doctrine when: (1) a clear or obvious

error occurred and the evidence is so closely balanced that the error alone threatened to tip the

scales of justice against the defendant, regardless of the seriousness of the error or (2) a clear or

obvious error occurred and that error is so serious that it affected the fairness of the defendant’s

trial and challenged the integrity of the judicial process, regardless of the closeness of the

evidence.” (Internal quotation marks omitted.) Id. “[F]orfeited one-act, one-crime arguments are

properly reviewed under the second prong of the plain-error rule because they implicate the

integrity of the judicial process.” People v. Nunez, 236 Ill. 2d 488, 493 (2010).

¶ 26   Under the one-act, one-crime rule, “a defendant may not be convicted of multiple

offenses that are based upon precisely the same single physical act.” People v. Johnson, 237 Ill.

                                                -8
1-15-2616

2d 81, 97 (2010). The reviewing court first determines whether the defendant’s conduct

consisted of a single physical act or separate acts. People v. Rodriguez, 169 Ill. 2d 183, 186

(1996). If one physical act was undertaken, then multiple convictions are improper. Id. Second, if

the defendant committed multiple acts, the court determines whether any of the convictions are

for lesser-included offenses. Id. Multiple convictions for lesser-included offenses are also

impermissible. Id. Our supreme court has long held that the predicate offense for another crime

is a lesser-included offense of the other crime. People v. Gillespie, 2014 IL App (4th) 121146,

¶ 14. The application of the one-act, one-crime rule is a question of law, which we review

de novo. Johnson, 237 Ill. 2d at 97.

¶ 27   Our supreme court said in People v. Donaldson, 91 Ill. 2d 164, 168 (1982):

               “From [reading the armed violence statute,] it cannot be said that

               the legislature clearly intended to provide for the imposition of

               multiple convictions and sentences based on a single act. It is

               reasonable to say that the legislature intended only to increase or

               enhance the minimum penalty upon conviction of a felony when

               the violator was in possession of a dangerous weapon while

               committing the felony. *** If it were its intention the legislature

               could have expressly provided for separate convictions and

               sentences on charges of armed violence and its predicate or

               underlying felony.”

¶ 28   Here, the defendant’s armed violence conviction is predicated upon his intent to deliver

drugs while armed with a dangerous weapon. This was based on evidence that the defendant

possessed a gun while also possessing drugs. He could not have violated the armed violence

                                              -9
1-15-2616

statute without committing the underlying felony of possessing drugs with the intent to deliver.

Thus, the two convictions clearly arise out of the same physical act. See id. at 170 (the alleging

of a predicate felony in the armed violence charge has the effect, upon conviction, of making it a

necessarily included offense). We find that there was an error here because it was improper for

the trial court to convict the defendant for possession of a controlled substance with intent to

deliver more than 15 grams but less than 100 grams of heroin, as it was the lesser-included

offense of his armed violence conviction.

¶ 29    We now address the State’s argument that the legislature did, in fact, change the

sentencing statute to create clear legislative intent to provide for separate convictions for armed

violence and possession of a controlled substance with intent to deliver even when based on a

single act. The State claims that Public Act 95-1052 (eff. July 1, 2009), which was enacted in

2009, clarified “once vague statutes to established judicial interpretations, changing the

sentencing provisions regarding concurrent and consecutive terms and providing for where

consecutive sentences are mandated.” More plainly, the State claims that Public Act 95-1052

amended section 5-8-4(d) of the sentencing statute to mandate consecutive sentences for armed

violence and drug trafficking, demonstrating the legislature’s intent for separate convictions.

¶ 30    The current language of section 5-8-4(d) of the sentencing statute, which the State relies

upon, states, in pertinent part:

                “The court shall impose consecutive sentences in each of the

                following circumstances:

                                                ***

                                   (3) The defendant was convicted of armed violence

                        based upon the predicate offense of any of the following:

                                                 - 10
1-15-2616

                       *** controlled substance trafficking involving a Class X

                       felony amount of controlled substance under Section 401 of

                       the Illinois Controlled Substances Act [(720 ILCS 570/401

                       (West 2012))].” 730 ILCS 5/5-8-4(d) (West 2012).

This language has actually been part of the sentencing statute since 2000. The version enacted on

January 1, 2000, stated, in pertinent part:

               “The court shall not impose consecutive sentences for offenses

               which were committed as part of a single course of conduct during

               which there was no substantial change in the nature of the criminal

               objective, unless:

                                              ***

                               (iii) the defendant was convicted of armed violence

                       based upon the predicate offense of *** controlled

                       substance trafficking involving a Class X felony amount of

                       controlled substance under Section 401 of the Illinois

                       Controlled Substances Act (720 ILCS 570/401).” 730 ILCS

                       5/5-8-4(a) (West 2000).

¶ 31   Clearly, although the wording is slightly different, the effect of the statute is the same

today as it was in 2000. Thus, the State is incorrect that this was a “change” enacted by the

legislature. Further, as the defendant points out, the sponsor of the bill enacted as Public Act 95

1052, made it clear that the bill was not making any substantive changes to the sentencing

statute; rather, the amendment simply rearranged the statute in order to make it easier to

understand. See 95th Ill. Gen. Assem., Senate Proceedings, May 24, 2007 (“This is a bill” that

                                               - 11
1-15-2616

does not make “any substantive changes, but—recodifies [the sentencing provisions] and puts

them in a different order”). (Remarks of Sen. Cullerton).

¶ 32   Moreover, we disagree with the State that this language “demonstrates the legislative

intent was to allow both the armed violence conviction and the underlying felony conviction to

remain, and not allow the underlying felony to be vacated.” The statute is expressly directed to

sentencing. It contains nothing to suggest intent to permit multiple convictions. The plain reading

of the sentencing statute states that when there is an armed violence conviction predicated upon

certain enumerated felonies, it triggers mandatory consecutive sentencing, such that any other

convictions for which a defendant was sentenced must be served consecutively to the armed

violence conviction. This in inapplicable to the defendant’s convictions. As we have already

explained, his conviction for possession of a controlled substance with intent to deliver more

than 15 grams but less than 100 grams of heroin is invalid because it violates the one-act, one-

crime rule.

¶ 33   Interestingly, the defendant does not challenge his conviction for possession of a

controlled substance with intent to deliver less than 1 gram of cocaine within 100 feet of a park

(count 3) under this same rationale. As he does not address it, neither will we. Accordingly, we

vacate the defendant’s conviction and sentence for possession of a controlled substance with

intent to deliver more than 15 grams but less than 100 grams of heroin. We note, however, that

remand for resentencing is unnecessary, as his sentence was imposed to run concurrently with

his 15-year sentence for armed violence.

¶ 34   The defendant next argues that this court should correct the mittimus to clarify that he

was sentenced for committing a Class X felony and not, as it currently states, sentenced as a

Class X offender due to prior convictions. The State concedes this issue. We therefore order the

                                              - 12
1-15-2616

mittimus to be corrected to clarify that the defendant was sentenced for committing a Class X

felony and not as a Class X offender.

¶ 35   Finally, the defendant argues that his fines and fees should be corrected. Specifically, he

claims that the $5 electronic citation fee was improperly imposed because it does not apply to

felonies pursuant to section 27.3e of the Clerks of Courts Act. 705 ILCS 105/27.3e (West 2012).

He further claims that the court failed to offset the $15 state police operations fee and $50 court

system fee by the 642 days that he spent in presentence custody. The defendant argues that both

of these “fees” are actually fines that should be offset by his $3210 in presentence credit. The

State concedes that all these fines and fees were improperly assessed, but argues that the

defendant has forfeited this argument.

¶ 36   The defendant acknowledges that he has forfeited this argument, but he contends that it is

reviewable under the plain error doctrine, or alternatively, that his trial counsel rendered

ineffective assistance of counsel for failing to object to the unauthorized fines and fees.

However, forfeiture is a limitation on the parties, not the court, and we may exercise our

discretion to review an otherwise forfeited issue. Great American Insurance Co. of New York v.

Heneghan Wrecking & Excavating Co., 2015 IL App (1st) 133376, ¶ 81 (Gordon, J., specially

concurring). Accordingly, we exercise our discretion to consider this issue without resorting to

the defendant’s arguments on plain error and ineffective assistance of counsel.

¶ 37   A reviewing court may modify a fines and fees order without remanding the matter to the

trial court under Illinois Supreme Court Rule 615(b)(1). People v. Bryant, 2016 IL App (1st)

140421, ¶ 22. The State concedes that the defendant’s fines and fees were improperly assessed,

and we agree. Accordingly, we order the fines and fees to be corrected. Specifically, we order the

$5 electronic citation fee to be vacated, and the $15 state police operations fee and the $50 court

                                              - 13
1-15-2616

system fee to be offset by the defendant’s $3210 in presentence credit. Therefore, we direct the

clerk of the circuit court to correct the fines and fees order to reflect a total assessment of $679

against the defendant.

¶ 38                                  CONCLUSION

¶ 39   For the foregoing reasons, we affirm the defendant’s conviction for counts I and III, we

vacate the defendant’s conviction and sentence for count II, we order the mittimus to be

corrected to clarify that the defendant was sentenced for committing a Class X felony and not as

a Class X offender, and we order the fines and fees order be corrected to reflect a total

assessment of $679 against the defendant.

¶ 40   Affirmed in part, vacated in part, and mittimus corrected; fines and fees order corrected.

                                               - 14


625 F.2d 499
John K. DEWEY, D.D.S., Plaintiff-Appellee,v.LOUISIANA STATE BOARD OF DENTISTRY, Defendant-Appellant.
No. 79-1155.
United States Court of Appeals, Fifth Circuit.
July 21, 1980.

Appeal from the United States District Court for the Eastern District of Louisiana; Edward J. Boyle, Sr., Judge.
Norman J. Robinson, Jr., New Orleans, for defendant-appellant.
Adams & Reese, New Orleans, La., William S. Poole, Jr., Demopolis, Ala., for plaintiff-appellee.
Before GODBOLD, SIMPSON and THOMAS A. CLARK, Circuit Judges.
PER CURIAM:

1
The decision is affirmed on the basis of the district court opinion, 491 F.Supp. 132 (E.D.La., 1980).

2
AFFIRMED.


857 F.Supp. 32 (1994)
Ruth Dalferes KEMP,
v.
UNITED STATES DEPARTMENT OF DEFENSE, Defense Finance and Accounting Service.
Civ. A. No. 93-1768.
United States District Court, W.D. Louisiana, Shreveport Division.
May 6, 1994.
*33 Robert W. Cook, Haughton, LA, for plaintiff.
John Robert Halliburton, Asst. U.S. Atty., Shreveport, LA, for U.S. Dept. of Defense.

MEMORANDUM RULING
STAGG, Senior District Judge.
Presently before the court is a motion to dismiss by the defendant and a motion for summary judgment by the plaintiff. For the reasons stated below, defendant's motion to dismiss is GRANTED and plaintiff's motion for summary judgment is DENIED.
On August 10, 1978, in the 26th Judicial District Court, Bossier Parish, Louisiana, a judgment of divorce was rendered which dissolved the matrimonial regime between plaintiff, Mrs. Ruth Dalferes Kemp, and her then husband, Oris A. Kemp. The judgment of divorce recognizes each as a one-half owner of all the property acquired during the existence of the marriage. The judgment, however, does not contain any reference to Mr. Kemp's military retirement pay. On March 5, 1990, that same court rendered a judgment which decreed, inter alia, that Ruth D. Kemp was "entitled to .36168 percent of all past and future military retirement received and to be received by" Oris A. Kemp. An amended judgment rendered on April 2, 1992 contained this identical provision. The defendant in this matter, the Defense Finance and Accounting Service, was not a party to either of these state court actions.
By the present suit, the plaintiff seeks a judgment from this court recognizing her entitlement to the direct payment of her share of her former husband's military retirement pay as provided by the state court judgments, and ordering the Defense Finance and Accounting Service to begin making such payments directly to plaintiff. The defendant has previously refused plaintiff's application for benefits, taking the position that such payments are not authorized under the Uniformed Services Former Spouses Protection Act.
Under 10 U.S.C. § 1408(c)(1),
[a] court may not treat retired pay as property in any proceeding to divide or partition any amount of retired pay of a member as the property of the member and the member's spouse or former spouse if a final decree of divorce, dissolution, annulment or legal separation (including a court ordered, ratified, or approved property settlement incident to such decree) affecting the member and the member's spouse or spouse (A) was issued before June 25, 1981, and (B) did not treat (or reserve jurisdiction to treat) any amount of retired pay of the member as property of the member and the member's spouse or former spouse.
In this case, a final decree of divorce was issued on April 10, 1978, and the decree "did not treat (or reserve jurisdiction to treat) any amount of retired pay of the member as property of the member and the member's spouse." As stated earlier, the state court judgment of divorce did not contain any reference to Mr. Kemp's military retirement pay.
It is clear that the March 5, 1990 and April 2, 1992 judgments are not in accordance with the clear mandate of § 1408(c)(1) and the Louisiana jurisprudence interpreting same. See e.g., White v. White, 623 So.2d 31 (La.App. 1st Cir.1993); Johnson v. Johnson, 605 So.2d 1157 (La.App. 2nd Cir.1992); and Dunham v. Dunham, 602 So.2d 1139 (La. App. 1st Cir.1992). As this court has no appellate jurisdiction over state courts, however, *34 it is powerless to amend the judgments by that court. 28 U.S.C. § 1257; Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Nevertheless, it is axiomatic that a judgment is conclusive only as between the parties to the suit and has no res judicata effect as to third persons. Thus, the Defense Finance and Accounting Service is not bound by the state court judgments.
Notwithstanding the existence of a valid state court judgment between plaintiff and her former husband and this court's duty to give full faith and credit to that judgment, this court cannot order that a third party comply with the terms of a judgment that is contrary to clearly established federal law. Accordingly, defendant's motion to dismiss is GRANTED and plaintiff's case is DISMISSED WITH PREJUDICE.
A judgment consistent with the terms of this Memorandum Ruling shall issue herewith.
THUS DONE AND SIGNED at Shreveport, Louisiana, this 5th day of May, 1994.

JUDGMENT
For the reasons assigned in the foregoing Memorandum Ruling,
IT IS ORDERED, ADJUDGED AND DECREED that plaintiff's motion for summary judgment is DENIED, that defendant's motion to dismiss is GRANTED, and that plaintiff's case is DISMISSED WITH PREJUDICE.
THUS DONE AND SIGNED at Shreveport, Louisiana, this 5th day of May, 1994.