author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT MILLER, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 89—1071
    Opinion filed January 24, 1992.

      Michael J. Pelletier and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Defendant, Robert Miller, was found guilty by a jury of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18—2), and sentenced to 10 years’ imprisonment. He appeals, contending that he was denied a fair trial and his right of confrontation where the State made comments in opening and closing arguments and elicited testimony implying that he had been named as an accomplice by a nontestifying codefendant, and that the trial judge erred in not allowing him to introduce evidence to correct the erroneous implication. Defendant further contends that his sentence should be reduced or, alternatively, that he should be granted a new sentencing hearing, because the trial judge’s characterization of the offense as “very aggravated” was not supported by the evidence. For the reasons set forth below, we affirm.

Facts

Defendant, Robert Miller, was charged, along with Willie Gibson, Joseph Williams and Julius Moore, with the August 28, 1986, armed robbery of Leonard McKinnon. The defendants were tried separately.

In opening statements to the jury, the prosecution said that the defendant was one of a group of individuals who robbed McKinnon at gunpoint. The police apprehended one of the robbers, Willie Gibson, who was wearing a jacket taken from McKinnon. The prosecution went on to say “that individual, Gibson, was questioned and that led to the arrest of Robert Miller and that’s the individual who’s on trial today.”

Counsel for defendant, in his opening statement, said that Gibson did not give the police defendant’s name or address, but rather the name and address of another co-offender, Julius Moore. When the police went to Moore’s apartment, they happened to find the defendant asleep in the apartment, but found no evidence directly on him linking him to the crime.

The victim, McKinnon, testified that he was 55 years old and retired from the Illinois National Guard. On the evening of April 27, 1986, he had gone to a lounge at 41st and Wells at seven or eight o’clock after umpiring a softball game. He left the bar in his car at about 12:30 or one o’clock, after drinking approximately six beers. He was headed to an all-night diner at 61st and King Drive to get a sandwich.

At 48th and Michigan, he pulled into a lot to relieve himself. When he finished, he looked up and saw a small caliber pistol in his face. The person holding the gun told him “this is a stick-up” and to back up. When McKinnon backed up, he saw three other individuals ransacking the interior of his car. One of them took his car keys and opened and searched the trunk. The individual with the gun then told McKinnon to take off his jacket and gym shoes, give him his money and lie down. McKinnon obeyed. According to McKinnon, they took over $300 in currency and a coin purse containing a silver dollar and two Kennedy half dollars. They also took his sports watch and 14-carat gold ring with a cateye in it.

McKinnon remained on the ground facedown until he saw the four individuals on the other side of Michigan Avenue. He then went to the street and flagged down a patrol car. Upon telling the officers that he had just been robbed, they took him to the police station at 51st and Wentworth. About half an hour later, the police brought in an individual (later identified as Willie Gibson) who was wearing McKinnon’s jacket, a blue jacket with “Chicago” down the side and “Leonard” on it, and McKinnon’s new Etonic gym shoes.

McKinnon then went home, but returned to the station the next morning when asked to by the police. There he identified three individuals in a lineup, one of whom was the defendant.

McKinnon also identified the defendant in open court, but was unable to describe with specificity what defendant was doing during the robbery. He could only say that the defendant was one of three individuals going through his car and trunk while a fourth person held a gun to him.

An assistant State’s Attorney testified for the State. He interviewed the defendant on August 28, 1986. After being advised of his constitutional rights, defendant made an oral statement to him, which was later reduced to writing and signed by the defendant.

In the statement, defendant said that he was with his friends when Julius suggested that they “should make some money by robbing guys who were with prostitutes.” According to defendant’s statement, they saw the victim with a prostitute having sex in his car. After the prostitute was gone, defendant waited on the corner as a lookout, while the others went over to McKinnon and robbed him at gunpoint. The group then went to a submarine place. Defendant went home after being given a silver dollar, two Kennedy half dollars and some change by Julius Moore.

Officer Kaye Hajduk of the Chicago police department testified that on August 28, 1986, at 2:20 a.m. she was driving down Michigan Avenue on routine patrol with her partner Officer Laurel Johnson. They were flagged down by McKinnon, who told them that he had just been robbed. He told them that the robbers had taken his jacket, shoes, cash and coins.

After driving McKinnon to the station, they continued on patrol. About a half hour later, they observed a male black wearing the jacket he had described. He was also wearing McKinnon’s gym shoes. Hajduk and Johnson placed this individual, later identified as Willie Gibson, under arrest, and transported him to the police station.

Following a conversation with Gibson, Hajduk and her partner Johnson, together with Detectives Utter and Dwyer, went to 4500 South State, apartment 905. The door was opened by a woman, who allowed the police to enter. In the bedroom, the detectives found the defendant and placed him under arrest.

On cross-examination, defense counsel asked Officer Hajduk about her conversation with Gibson:

"Q. Now, you had a conversation with Mr. Willie Gibson, is that correct?
A. Yes.
Q. He gave you some information, is that correct?
A. Yes.
Q. He gave you some names, I believe you said?
A. Yes.
Q. He gave you the name of Julius, is that correct?”

The State objected on the grounds of hearsay, and the court sustained the objection.

In his offer of proof, defense counsel elicited that if permitted to answer, Officer Hajduk would testify that Gibson gave the police the name and address of Julius Moore, not that of defendant Miller.

Detective Robert Utter testified about the arrest of the defendant. When he went into the bedroom of apartment 905 at 4500 South State, he found defendant sleeping on the bed. After defendant got out of bed, Utter noticed some coins underneath him on the bed. These were a silver dollar and two Kennedy half dollars. Defendant was placed under arrest. Julius Moore was also arrested at the apartment.

Utter further testified that defendant and Moore were taken back to the police station and a lineup was conducted. In that lineup, McKinnon identified defendant, Moore and Williams.

On cross-examination, Detective Utter said that after defendant’s arrest, the police learned that defendant lived on South Forestville, not in the apartment on South State where he was arrested. Utter also said that no proof that defendant lived in the apartment where he was arrested, such as a gas or light bill, was found.

Defendant’s motion for a directed verdict of acquittal was denied, and the defense rested without presenting any witnesses.

In closing arguments, the prosecutor again related the events leading up to the defendant’s arrest. The police arrested Willie Gibson wearing McKinnon’s jacket and shoes, and “[a]fter talking to Willie Gibson, she [Officer Hajduk] goes along with two other detectives, one being Detective Utter, to an address on south State Street. They go up to an apartment that was named, knocked on the door and was admitted entry. At that time Robert Miller was arrested.”

The jury found defendant guilty of armed robbery. The court denied defendant’s motion for a new trial and sentenced him to 10 years’ imprisonment. Defendant now appeals.

Opinion

Defendant’s first claim of error is that he was denied a fair trial and his right of confrontation where the State made comments in opening and closing arguments and elicited testimony from two witnesses which implied that a codefendant, Willie Gibson, who did not testify at defendant’s trial, had named the defendant as his accomplice. Defendant contends that the cumulative effect of these comments constituted reversible error. We disagree.

The first alleged error concerns the opening statement by the State. The prosecutor said:

“Those police officers took Mr. McKinnon, the victim, to a police station. *** A short time later, they apprehended an individual by the name of Willie Gibson.
Once Mr. Gibson was arrested, he was brought back to the police station. Mr. Gibson had on the jacket that Mr. McKinnon was wearing when he was robbed and his shoes. The defendant, Willie Gibson, was wearing the victim’s shoes. Leonard McKinnon noted this at the police station. That individual, Gibson, was questioned and that led to the arrest of Robert Miller and that’s the individual who’s on trial today.”

Whether a prosecutor’s comments constituted prejudicial error is determined by looking to the language used, its relation to the evidence, and its effect on the defendant’s right to a fair and impartial trial. (People v. Bivens (1987), 163 Ill. App. 3d 472, 482, 516 N.E.2d 738.) The scope and latitude of the statement are within the discretion of the trial court. People v. Rader (1988), 178 Ill. App. 3d 453, 532 N.E.2d 1365.

There was nothing in the language of the opening statement designed or calculated to arouse the prejudice of the jurors. (See People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174; People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.) The fact that the State said that the police questioned Gibson and that questioning led to the arrest of the defendant is not improper. (People v. Thibudeaux (1981), 98 Ill. App. 3d 1105, 424 N.E.2d 1178 (no error where State referred in opening statement to meeting between defendant and others without going into any explicit declarations of co-conspirators, even in light of pretrial order by court to avoid references to statements by co-conspirators).) The language used avoided any reference to the substance of the conversation between the police officers and Gibson and was fully supported by the evidence later introduced at trial. (People v. Rader (1988), 178 Ill. App. 3d 453, 462, 532 N.E.2d 1365 (prosecution may comment in opening statement on evidence which it in good faith expects to introduce at trial).) Accordingly, we find there was no error in the State’s opening statement.

In regard to the testimony of Officer Hajduk which defendant contends contributed to the cumulative error, we also find no error. She was testifying about the investigation following the arrest of Gibson.

“Q. Did you ask him anything in response to those rights?
A. We asked him — we asked him questions about the other
offenders.
***
We asked him questions about the other offenders that were
with him.
* * *
Q. Once you had this conversation with Mr. Gibson, did you have occasion to go anywhere at this point?
A. With the information that Mr. Gibson gave us, myself
and my partner and the detectives went over to 4500 South State apartment 905.”

There is no question that the introduction of a co-offender’s hearsay statement implicating the defendant violates the defendant’s sixth amendment (U.S. Const., amend. VI) right to confrontation. (Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.) But police testimony regarding investigatory procedures which reveals the occurrence of a conversation with a co-offender but not its contents is not hearsay, as it is based upon the officer’s personal knowledge. (People v. Gacho (1988), 122 Ill. 2d 221, 248, 522 N.E.2d 1146.) As long as the testimony recounting the steps taken in a police investigation does not gratuitously reveal the substance of their statements and so inform the jury that they told the police that the defendant was responsible for the crime, such testimony does not violate the sixth amendment and is admissible. (People v. Henderson (1990) , 142 Ill. 2d 258, 304, 568 N.E.2d 1234.) “The mere fact that one of the many inferences which the jurors could have drawn from this testimony was that [codefendant] told the police defendant [was involved] *** does not mean that defendant was denied his sixth amendment rights when [the codefendant] did not testify at trial.” Henderson (1990), 142 Ill. 2d at 303-04. See also People v. Simms (1991) , 143 Ill. 2d 154, 572 N.E.2d 947 (it is not error to admit such testimony even though it may suggest that a nontestifying witness has implicated the defendant); People v. Hunter (1984), 124 Ill. App. 3d 516, 529, 464 N.E.2d 659 (such evidence “is admissible although the inference logically to be drawn therefrom is that the information received motivated the officers’ subsequent conduct”).

As with Officer Hajduk’s testimony, we disagree with defendant’s contention that it was error to admit the testimony of Detective Utter, who said “there was one that was in custody and as a result of information we visited other locations looking for — ,” and who was merely recounting the steps taken in the investigation, which as discussed above is admissible evidence so long as the substance of the out-of-court conversation was not revealed.

Regarding the State’s closing argument, we likewise find no error. Here, too, there was no disclosure of the substance of the conversation with Gibson.

“She (Officer Hajduk) picks him up, she arrests Willie Gibson at that time and takes him back to the station.
After talking to Willie Gibson, she goes along with two other detectives, one being Detective Utter, to an address on south State Street. They go up to an apartment that was named, knocked on the door and was [sic] admitted entry. At that time Robert Miller was arrested.”

Although we find no overt error in the State’s closing argument, we do not condone the repeated and unnecessary reference by the State’s Attorney to that conversation. Such repetition would serve mainly to reinforce the possible inference which the trier of fact would make that the co-offender had identified the defendant as an accomplice. For that reason, unnecessary repetition alluding to such conversations should be avoided. This repetition only serves to increase the suspicion of such an ulterior motive. The cases of People v. Johnson (1987), 116 Ill. 2d 13, 28, 506 N.E.2d 563, and People v. Campbell (1983), 115 Ill. App. 3d 631, 450 N.E.2d 1318, cited by defendant are inapposite, however. In those cases, in addition to what was done here, there was explicit testimony as to the content of the out-of-court statements. Moreover, in Campbell, the prosecution persisted in its objectionable questioning in spite of orders by the court to desist, and commented upon the objectionable testimony four times in closing arguments.

In any event, even if we were to find error in the State’s closing argument, it would not constitute reversible error. In order for a remark made by the State in closing argument to be deemed reversible error, “the complained-of remark must have resulted in substantial prejudice to the accused, such that the verdict would have been different had it not been made.” (People v. Morgan (1991), 142 Ill. 2d 410, 453, 568 N.E.2d 755, cert, granted (1991),_U.S._, 116 L. Ed. 2d 239, 112 S. Ct. 295.) Here, the remarks were comments on the evidence properly introduced at trial. Due to the overwhelming evidence of defendant’s guilt, they did not result in substantial prejudice to the defendant. We cannot say that the verdict would have been different absent these remarks.

There was overwhelming evidence of defendant’s guilt. Defendant, in his own unrecanted statement to the assistant State’s Attorney, admitted his participation in the robbery. In addition, when the police arrested defendant, they found items taken from the victim, a silver dollar and two Kennedy half dollars, on the bed where defendant had been lying. Finally, the victim identified defendant twice, first in a lineup the morning after the robbery, and later in open court.

Defendant’s second contention is an outgrowth of his first argument. He urges that he should have been allowed on cross-examination of Officer Hajduk to elicit admittedly hearsay testimony that Gibson named Julius, not the defendant, in order to correct the false impression her direct testimony had created that a codefendant had implicated the defendant. Although we have held that the use of the conversation with Gibson as a means of establishing the steps leading up to defendant’s arrest was not error, this does not foreclose the possibility that the jury would be left with the erroneous impression that Gibson had implicated the defendant. Consequently, there is no reason why the court should not have permitted the cross-examination to disavow any such inference. We agree that permitting this cross-examination would have been preferable, but find that failure to do so falls short of an abuse of discretion.

In People v. Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 255, the court held that when the State introduced portions of a defendant’s conversation with a neighbor, the defendant must have the right on cross-examination to introduce the entire conversation. “In view of the possibility that the jurors would be misled into thinking that the defendant has said nothing else, we believe the trial court should have allowed [the neighbor] to testify to the defendant’s statement.” Weaver, 92 Ill. 2d at 556-57.

In People v. Payne (1983), 98 Ill. 2d 45, 456 N.E.2d 44, the court found that there was no error in allowing the State to introduce evidence on redirect examination to correct a false implication created by defense questioning on cross. “[A]llowing the defense or prosecution to misrepresent to the jury the actual facts of the case is neither consistent with the proper functioning and continued integrity of the judicial system nor with the policies of the exclusionary rules.” Payne, 98 Ill. 2d at 51-52.

In People v. Wilbert (1973), 15 Ill. App. 3d 974, 305 N.E.2d 173, the court applied the doctrine of “curative admissibility” in holding that it was not error to allow the State to introduce rebuttal evidence regarding defendant’s gang affiliation, finding that the defendant had opened the door to the subject of gang membership. “Under the circumstances of this case applying the rule of curative admissibility which allows an opponent to introduce similar evidence in order to combat any prejudice which may ensue from the original evidence was the better way to proceed.” Wilbert, 15 Ill. App. 3d at 987.

Here, it was the defendant rather than the State, as in Payne and Wilbert, who sought to introduce otherwise inadmissible evidence. It follows, a fortiori, that a defendant should be permitted the same latitude as the State in introducing otherwise inadmissible evidence to counter a possible misconception or false impression created by the State’s evidence. Although, unlike Weaver, the State did not directly introduce any of the conversation between Gibson and the police, the jurors may have nonetheless been misled to believe that Gibson named the defendant as an accomplice. We believe, as did the court in Weaver, that the court should have allowed the witness to testify to the conversation. Defendant should have been allowed to introduce the testimony that Gibson had not named the defendant as an accomplice.

However, the trial court’s limitation on defendant’s cross-examination of Hajduk does not require reversal of his conviction. The latitude of cross-examination rests in the sound discretion of the trial court and will not be disturbed on review absent a clear abuse of that discretion resulting in manifest prejudice to the defendant. (People v. Maldonado (1989), 193 Ill. App. 3d 1062, 1069, 550 N.E.2d 1011.) To determine the constitutional sufficiency of cross-examination, the court looks not to what the defendant was not allowed to ask, but rather what he was allowed to do, an inquiry made by looking at the entire record. Maldonado, 193 Ill. App. 3d 1062, 550 N.E.2d 1011.

As previously noted, there was no testimony elicited by the State which specifically indicated that Gibson had named the defendant. Nor were such comments made during opening or closing arguments. That the jurors may have drawn such an inference is not a certainty, and the fear that defendant was prejudiced from such an inference is only conjecture.

Moreover, any false implication that may have been made was somewhat lessened by the testimony of Detective Utter. On direct examination, Utter said that Julius Moore was arrested along with the defendant at the apartment at 4500 South State. On cross-examination, Utter said that after defendant’s arrest, the police learned that the defendant lived on South Forestville, not South State where he was arrested. Further, the police found no evidence in the apartment, such as gas or electric bills addressed to the defendant, which might indicate that it was his apartment. The introduction of this evidence tended to establish that the defendant was not a resident of the apartment where he was arrested, thereby diluting any inference the jury might otherwise make that Gibson had identified the defendant as the person to be apprehended at the State Street apartment. This testimony would have permitted the defendant to argue in closing, and for the jury to consider, that it was Moore’s name and address which Gibson provided to the police, not that of the defendant. See People v. Boyd (1980), 88 Ill. App. 3d 825, 410 N.E.2d 931 (restriction of defendant’s cross-examination of police officer proper where defendant was able to solicit same information through testimony of other witnesses).

Further, even if defendant were denied his right of confrontation, this does not necessarily require reversal. (People v. Johnson (1987), 116 Ill. 2d 13, 506 N.E.2d 563 (confrontation errors, although constitutional, do not automatically warrant reversal).) If we are able to conclude that the error was harmless beyond a reasonable doubt, we may affirm the conviction notwithstanding the error (People v. Johnson (1987), 116 Ill. 2d 13, 506 N.E.2d 563), and would do so here.

As discussed previously, the evidence of defendant’s guilt was overwhelming. Defendant admitted his participation, and the police found proceeds of the robbery when they arrested the defendant. Also, the victim twice identified the defendant.

Defendant, however, argues that the errors here were not harmless, citing People v. Mullen (1990), 141 Ill. 2d 394, 566 N.E.2d 222, where the court reversed a conviction based upon a single improper closing statement by the prosecution. The court rejected the State’s argument that defendant’s confession was sufficient by itself to sustain a conviction, saying “a confession standing alone, in light of other conflicting evidence, may not be enough to sustain a murder conviction, when a fundamental error occurred at trial.” (Mullen, 141 Ill. 2d at 403.) As discussed above, however, defendant’s confession in this case did not stand alone. The police found items taken from the victim in the bed where they arrested defendant. Also, the victim twice identified the defendant.

For all the above reasons, we find no reversible error in any of the complained-of testimony, the limitation on cross-examination or the statements by the prosecution, either individually or cumulatively, and affirm defendant’s conviction.

Defendant’s final contention is that he should receive a reduced sentence or a new sentencing hearing due to the fact that the court’s characterization of the armed robbery as a “very aggravated situation” was not supported by the evidence. We disagree.

In sentencing defendant to a term of 10 years, the court said:

“Robert Miller, you have been convicted by a jury to the charge of armed robbery. In this very aggravated situation based upon the evidence I heard I have reviewed all the facts and all the witnesses’ testimony this morning. I will hearby sentence you to serve a term of ten years in the Illinois State Penitentiary.”

Defendant interprets these comments as indicating that the trial court perceived the armed robbery at issue as more than “a basic armed robbery which did not contain factors more aggravating than the basic elements of the offense itself.” He contends that just the opposite is true: that this robbery was less aggravated than most armed robberies.

Defense counsel emphasized that the defendant, 21 years old with no prior convictions, was a “bit player” in the robbery, a lookout a block away from the actual robbery. As a result, defendant asked for leniency.

Imposition of a sentence is a matter of judicial discretion, and absent an abuse of that discretion, we may not disturb a sentence upon review. {People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) We find no such abuse here.

Although a court in imposing sentence may not consider the bare elements of an offense as aggravating factors (see People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906), it may consider “ ‘the nature and circumstances of the offense, including the nature and extent of each element of the offense as committed by the defendant.’ ” People v. Saldivar (1986), 113 Ill. 2d 256, 268-69, 497 N.E.2d 1138, quoting People v. Hunter (1981), 101 Ill. App. 3d 692, 694, 426 N.E.2d 666; People v. Tolliver (1981), 98 Ill. App. 3d 116, 117-18, 424 N.E.2d 44.

“While the classification of a crime determines the sentencing range, the severity of the sentence depends upon the degree of harm caused to the victim and as such may be considered as an aggravating factor in determining the exact length of a particular sentence, even in cases where serious bodily harm is arguably implicit in the offense for which a defendant is convicted.” (Emphasis in original.) Saldivar, 113 Ill. 2d at 269.

We need not conclude that the trial court’s remarks indicate that it improperly relied upon the basic elements implicit in the offense of armed robbery as factors in aggravation. The trial court here stated that it had considered all the facts and the witnesses’ testimony prior to imposing sentence. Its characterization of this crime as a “very aggravated situation” is not unsupported by the facts, as pointed out by the State at the sentencing hearing. The lone victim was robbed by four persons, one armed with a gun, at 2 o’clock in the morning. The victim was a 55-year-old man, while the four robbers were young men, who ransacked his car, made him lie on the ground and took from him virtually everything that could be taken: his clothes, shoes, jewelry and money.

It is clear from the sentence actually imposed that the court did not abuse its discretion in sentencing defendant to 10 years’ imprisonment. The sentence imposed is not disproportionate to the circumstances of the crime committed. Armed robbery is a Class X felony, punishable by 6 to 30 years’ imprisonment. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—l(a)(3) Here, defendant’s sentence of 10 years is within the statutory limit, and is, in fact, at the low end of the statutory range. Accordingly, we affirm defendant’s sentence as well as his conviction.

Affirmed.

McNULTY, PM., and LORENZ, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    CAROLYN D. MILLER, Plaintiff-Appellee, v. THE TOWN OF CICERO et al., Defendants (The Village of Stickney, Defendant-Appellant).
    First District (5th Division)
    No. 1 — 89—3475
    Opinion filed January 24, 1992.

      Altheimer & Gray, of Chicago (Donald J. Kreger, Kenneth C. Shepro, and Ruth Krugly, of counsel), for appellant.
    Serpico, Novelle, Dvorak & Navigato, Ltd., of Chicago (Kevin J. O’Shea and William D. Serpico, of counsel), for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

Plaintiff Carolyn D. Miller filed a personal injury action against defendants, the Town of Cicero, the Village of Stickney and the County of Cook. The trial court entered a default judgment against the Village of Stickney. Stickney sought to quash service and vacate the default judgment. The trial court denied the motion, and Stickney appeals. The other defendants are not parties to this appeal.

On February 19, 1982, plaintiff filed a personal injury action after she collided with a concrete platform in the center of Pershing Road at the intersection where the towns of Cicero and Stickney meet. Count II sought damages against Stickney, alleging that Stickney had control of the portion of Pershing Road where the accident occurred. Attached to the complaint as exhibit 2 is a statutory notice of accident form to Arthur Rawers, clerk of the Village of Stickney. The space indicating receipt by the village clerk is blank.

The summons was issued on February 19, 1982. It included the following directions: “Sheriff, please serve: *** Village of Stickney, Village of Stickney Administration Building,” and a street address in Stickney.

On February 26, 1982, a deputy sheriff, Jerry Geraci, left a copy of the summons with Lillian Rotrekl, an employee in the office of the Stickney village clerk. The return states that Geraci served the summons “[b]y leaving a copy with Lillian Rotrekl, agent of said defendant.”

On May 11, 1982, the trial court granted Cook County’s motion to quash service on the basis that service was made on the superintendent of highways, and not on the chairman of the county board or the county clerk as required by statute. On June 9, 1982, Cook County was re-served at the clerk’s office, and Cook County filed a general appearance in the action on July 9,1982.

On August 18, 1982, the trial court entered a default judgment against Stickney. A notice of the motion for entry of the default judgment was mailed to “Village of Stickney” on July 30,1982.

On April 11, 1984, Cook County filed a motion for summary judgment on the basis that it did not control Pershing Road and instead it was built and maintained by the Illinois Department of Transportation.

On June 15, 1984, Cicero filed a motion for summary judgment on the same basis. On the same day, Cicero was given leave to withdraw the motion for summary judgment without prejudice.

On June 15, 1984, the trial court entered an order granting the County of Cook’s motion for summary judgment, dismissing the case against the County of Cook with prejudice.

On December 20, 1984, after prove up, the court entered a default judgment against Stickney in the amount of $25,000 plus costs.

On January 31, 1985, pursuant to stipulation, the court entered an order dismissing the Town of Cicero with prejudice and providing that the cause continue as to Stickney.

On February 2, 1987, plaintiff attempted to serve a citation to discover assets on Stickney. The returns on this citation, and several other citation forms, show that service was not made. The reasons are not specified.

On March 13, 1987, Mary Ellen Prerost, the deputy clerk of Stickney, accepted service by mail of plaintiff’s citation to discover assets. Stickney did not appear at the March 23, 1987, hearing, and the matter was continued.

On April 6, 1987, Rotrekl accepted service from a deputy sheriff of another citation to discover assets. Stickney did not appear at the April 27, 1987, hearing, and the matter was again continued.

On June 12, 1987, Prerost accepted service by certified mail of another citation to discover assets. Stickney did not appear at the July 1, or July 10, 1987, hearing, and the matter was continued once again, in order for plaintiff to serve a properly elected official pursuant to Supreme Court Rule 277(c)(3) (134 Ill. 2d R. 277(c)(3)).

On July 13, 1987, the mayor of Stickney and the clerk of Stickney were served with a citation to discover assets.

On July 31, 1987, the court found that proof of service was “apparently” made on the mayor and the village clerk of Stickney. The court found that defendant Stickney had once again failed to appear, and it issued a rule to show cause why the mayor and village clerk should not be held in contempt for failing to appear in court on the citation to discover assets.

On August 31, 1987, Stickney filed a special and limited appearance to object to personal jurisdiction, and a motion to quash service of summons and vacate the default judgment. Stickney attached the affidavit of Prerost, stating that in February 1982 Rotrekl was not authorized to accept service of summons on behalf of Stickney, and was not the president, village clerk or deputy clerk of Stickney.

On September 10, 1987, plaintiff moved to strike the affidavit of Prerost. The court denied the motion, but granted leave to depose Rotrekl and Prerost.

On March 31, 1989, the depositions of Rotrekl, Prerost, and Village Clerk Arthur Rawers were taken by plaintiff.

Rotrekl testified at her deposition that in February 1982 she held the position of “office clerk” for the village of Stickney. Prerost, the treasurer, deputy clerk and office manager, was Rotrekl’s supervisor. Rotrekl’s duties included answering telephones, “taking care of the [customer] window, the water department, licensing and miscellaneous duties.”

Rotrekl did not recall whether she was at work on February 26, 1982, or whether she had accepted legal process. She testified, however, that she was not authorized as part of her duties of employment with the village to accept legal papers on behalf of the village. She did not know who was authorized to accept service. She “probably” accepted legal papers on behalf of the city at various times. If she had accepted any papers, they “would have been just laid on Mary Ellen[’s] desk, not even looked at, just laid there because it was not my responsibility.”

Prerost testified at a deposition that at the relevant time she held the positions of treasurer, collector and deputy clerk for the village of Stickney. As deputy clerk, her responsibilities were “[t]o assist the village clerk in any way I ha[d] to.” Prerost did not recall the service of summons relating to the present case.

Prerost testified further that the village clerk was authorized to accept service of legal process, but “[i]n his absence, I would be.” There was no document which authorized Prerost to accept service of summons. The authorization was “[j]ust an accepted fact.” She continued: “Everybody that work[ed] in the office” knew it, including Rotrekl. Prerost never advised Rotrekl that they were not authorized to accept service of summons. There were no circumstances whatsoever under which Rotrekl was authorized to accept service.

Prerost also testified, however, that there were no circumstances trader which she would have objected to office personnel accepting service of summons. During the eight years Rotrekl worked for the village, Rotrekl accepted service “many” times, and the village never objected to that practice.

Prerost testified that Rotrekl’s duties included collecting money for water bills, issuing vehicle stickers and dog tags, dispersing mail in the office and general office work. Rotrekl was never the village clerk, deputy clerk or president.

Rawers testified at a deposition that at the relevant time he was clerk of the Village of Stickney. The position of village clerk was a part-time position. Rawers did not recall anything relating to the present action.

Rawers was not aware of the persons who were authorized to accept, or who would normally have accepted, service of process on behalf of the village in February 1982. He had neither authorized anyone to accept service, nor had he directed anyone not to accept service. In the 12 years which he had been village clerk, he had only personally accepted service one time, and that was only because he “just happened to be in the office at that time.” Rawers stated: “Somebody receives [service]. I don’t care who receives it.”

In 1982, Rotrekl functioned basically as a secretary. She had never been a village clerk, deputy clerk or president.

An April 27, 1989, affidavit by Terry Geraci, attached to Stickney’s motion to quash, states that “it was always my practice when serving a municipal corporation that I would inquire as to whether or not the person was authorized and able to accept the service of process on behalf of the particular municipality.” In addition: “I would never leave service of summons with any person at a municipality unless they had indicated to me that they were authorized to accept said service on behalf of the municipal corporation.”

On November 28, 1989, the court denied Stickney’s motion to quash service and vacate default judgment.

Opinion

Stickney maintains that the trial court erred in finding it had personal jurisdiction and that service was properly made on Rotrekl. We agree. Section 2—211 of the Code of Civil Procedure provides:

“Service on public, municipal, governmental and quasi-municipal corporations. In actions against public, municipal, governmental or quasi-municipal corporations, summons may be served by leaving a copy with the chairperson of the county board or county clerk in the case of a county, with the mayor or city clerk in the case of a city, with the president of the board of trustees or village clerk in the case of a village, with the supervisor or town clerk in the case of a town, and with the president or clerk or other officer corresponding thereto in the case of any other public, municipal, governmental or quasi-municipal corporation or body.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 211.)

Personal jurisdiction does not exist unless proper service of summons has been made. (Giralamo v. O’Connell (1986), 145 Ill. App. 3d 527, 495 N.E.2d 1180.) Absent proper service of summons, unless there is a general appearance or a waiver of process, personal jurisdiction can be obtained only by compliance with the applicable statute specifying the precise manner of service of process. Without such compliance, the judgment is void even where defendant had actual knowledge of the proceedings. State Bank v. Thill (1986), 113 Ill. 2d 294, 497 N.E.2d 1156.

Here, the statute provides that with respect to a village, service must be made to the president of the board of trustees or the village clerk. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 211.) Plaintiff served Lillian Rotrekl, an office clerk with general clerical duties. The parties do not dispute that Rotrekl was not the president of the board of trustees or the village clerk of Stickney. Thus, the service was obviously not in compliance with the plain language of the statute.

The general principle governing the effect of service upon employees or agents of a public body other than those expressly designated by statute to receive summons on behalf of that public body has been enunciated in the early Supreme Court decision of Amy v. City of Watertown (1889), 130 U.S. 301, 32 L. Ed. 946, 9 S. Ct. 530. There, the Court held that no in personam jurisdiction attached where the statute required service on the mayor and, because the office of mayor was temporarily vacant, service was instead made on the ex-mayor, the city clerk, the city attorney and the last presiding officer of the board of street commissioners. The Court stated:

“ ‘The principle is too elementary to need discussion that a court can only acquire jurisdiction of a party, where there is no appearance, by the service of process in the manner prescribed by law.’ *** ‘When the statute prescribes a particular mode of service, that mode must be followed. *** When the statute designates a particular officer to whom the process may be delivered and with whom it may be left, as service upon the [municipal] corporation, no other officer or person can be substituted in his place. The designation of one particular officer upon whom service may be made excludes all others.’ ” Watertown, 130 U.S. at 317, 32 L. Ed. at 952, 9 S. Ct. at 536.

This rule, which does not permit alternate service on agents of a public body other than those listed in the statute, has been stringently followed. Substitute service on a municipal entity is not a permissible method of service. See Johnson v. City of Raleigh (1990), 98 N.C. App. 147, 389 S.E.2d 849 (city is not a natural person for purposes of substituted personal process); Vergo v. City of Mulberry (1949), 167 Kan. 561, 562, 207 P.2d 370, 371 (a city is not a company or private corporation; where statute provides a particular municipal officer for acceptance of service, the statute must be followed); In re Heinisch (1986), 121 A.D.2d 721, 723, 503 N.Y.S.2d 901, 902 (municipality is not a private corporation for purposes of service of summons analysis; service on woman working at counter in town hall was ineffective where statute requires service on chairman, secretary, clerk or member of town board of appeals).

See also Amen v. City of Dearborn (6th Cir. 1976), 532 E2d 554, 557 (service on secretary of city clerk and on elections director was ineffective where statute required service on mayor, city clerk or city attorney; however, service effective where statute permits service on person in charge of office of those listed in statute); Rankel v. Green-burgh (S.D.N.Y. 1987), 117 F.R.D. 50 (service on town attorney was ineffective where statute requires service on town supervisor or town clerk; however, action not dismissed because plaintiff is pro se and town filed answer without objection to service); Tucker v. Eaton (1986), 426 Mich. 179, 393 N.W.2d 827 (service on administrative secretary for city hospital was ineffective where statute requires service on mayor, city clerk or city attorney); Nitardy v. Snohomish County (1986), 105 Wash. 2d 133, 712 P.2d 296 (service on secretary to county executive was not effective where statute requires service on county auditor); Town of Washington v. Village of Cecil (1972), 53 Wis. 2d 710, 193 N.W.2d 674 (service on clerk’s wife at home was ineffective where statute requires service on village president or clerk); Walters v. Dock Comm’n (1928), 126 Or. 478, 270 P. 778 (service on secretary of dock commission ineffective where statute requires service on city clerk); Landreville v. Shoreline Community College District (1988), 53 Wash. App. 330, 766 P.2d 1107 (service on administrative assistant in the office of the attorney general was ineffective where statute requires service on attorney general or assistant attorney general); City of Mesquite v. Bellingar (Tex. Ct. App. 1985), 701 S.W.2d 335 (service on city attorney ineffective where statute requires service on city’s mayor, clerk, secretary or treasurer); Meadowdale Neighborhood Committee v. City of Edmonds (1980), 27 Wash. App. 261, 616 P.2d 1257 (service on mayor’s secretary and on city clerk was ineffective where statute requires service on mayor).

See generally 56 Am. Jur. 2d Municipal Corporations §854, at 836 (1971) (“when the statute designates a particular municipal officer upon whom process may be served, no other officer or person may be substituted”); 64 C.J.S. Municipal Corporations §2205(c)(3), at 1053 (1950) (“[J]urisdiction is not acquired by service on one other than the officer or agent named in the statute”). Accord 17 E. McQuillin, Municipal Corporations §49.32, at 215 n.10 (3d ed. 1982).

While there is a dearth of dispositive cases in Illinois pertaining to the availability of substituted service upon a governmental body, Town of Hutton v. Ingram (1929), 255 Ill. App. 97, comes close. There, the defendant in error failed to serve the town supervisor or town clerk as required by statute. Notwithstanding this absence of personal service upon the statutorily designated agent of the town, the trial court found that it nevertheless had jurisdiction over defendant in error, and entered judgment against it for $750. The appellate court reversed, relying on the fact that the applicable statute required that process be served on the supervisor or town clerk. After determining that no personal service was effected, the court went on to state that the lack of service was not cured or made moot by the stipulation of its attorney to a consent judgment, stating:

“The record does not disclose any authority from the town of Hutton to Charles Wallace, who appeared for the town to defend the case as attorney, to compromise or settle the alleged claim or to consent to an allowance of a judgment for the sum of $750 against the town of Hutton.” (Hutton, 255 Ill. App. at 99.)

The facts reflected in the opinion are obscure as to the identity of the alternate person actually served on behalf of the town. But the decision was clear that it did “not appear from the return that either the supervisor or the town clerk of the town of Hutton were [sic] served as required by the statute” (Hutton, 255 Ill. App. at 99), and therefore no in personam jurisdiction was obtained. The holding in Hutton is therefore consistent with the basic principle set forth in Amy v. Watertown and followed by the majority of other jurisdictions, which does not permit service upon alternate public employees or agents in place of those designated by statute. See 17 E. McQuillin, Municipal Corporations §49.32, at 215 n.10 (citing Hutton v. Ingram, 255 Ill. App. 97, for the principle that “[w]here the law designates the officer who shall be served, usually service upon some other officer will be insufficient”).

Plaintiff attempts to distinguish the holding in Hutton by pointing to the partial quote in that case that the “record does not disclose any authority from the Town of Hutton to” Wallace. As indicated in the full quote recited above, however, the court in Hutton was discussing authority to settle, not authority to accept summons. As previously indicated, the opinion does not even identify Wallace as the person who was served.

It is true that our holding, which requires the trial court to vacate the default judgment and quash service of summons, may seem “an unnecessary hardship, stressing technicalities rather than the realities of the situation, since there is no claim that the county authorities did not receive the summons from the employee.” However, we must conclude, as did the court in Fillyow v. County of Westchester, that “[this] is a matter of concern for the legislature, and not for the court, which must enforce the law as it reads.” Fillyow v. County of Westchester (1961), 33 Misc. 2d 501,_, 225 N.Y.S.2d 848, 850; see also Meadowdale Neighborhood Committee, 27 Wash. App. at 268, 616 P.2d at 1262 (any hardship caused by quashing service of summons on municipality is a matter for the legislature).

Plaintiff maintains that “the act of Rotrekl on numerous occasions, accepting service, the clerks’ knowledge of her acceptance, and their tacit approval of Rotrekl accepting service, authorized the validity of service of summons upon Rotrekl. The Village of Stickney is estopped from denying, at this point, that Rotrekl was authorized to accept service of summons.”

In general, estoppel against public bodies is not favored and is found only in rare circumstances. (County of Cook v. Patka (1980), 85 Ill. App. 3d 5, 405 N.E.2d 1376.) A governmental body cannot be estopped by an act of its agent which exceeds the authority conferred on that agent. (County of Cook v. Patka, 85 Ill. App. 3d 5, 405 N.E.2d 1376.) “Anyone dealing with a governmental body takes the risk of accurately ascertaining that he who purports to act for that body stays within the bounds of his authority, and this is so even though the agent himself may have been unaware of the limitations on his authority.” County of Cook v. Patka, 85 Ill. App. 3d at 12.

Furthermore, we find that there is insufficient basis to support the invocation of the doctrine of equitable estoppel here. There is no evidence that Stickney took action intended to cause plaintiff to rely on any presumption that there had been proper service. (See Henderson v. City of New York (1988), 143 A.D.20d 884, 533 N.Y.S.2d 547; Tucker v. Eaton (1986), 426 Mich. 179, 393 N.W.2d 827; Landreville v. Shoreline Community College District (1988), 53 Wash. App. 330, 766 P.2d 1107.) There has been no showing that plaintiff was misled by any representation or concealment of fact by Stickney, and no showing that a proper official of Stickney had notice of the action within the limitation period and made a conscious decision to delay raising the defect in service until after the limitation period had run. See Tucker v. Eaton, 426 Mich, at 184-85, 393 N.W.2d at 830-32 (rejecting appellate court’s holding that an exception exists if the municipal defendant had established a systematic alternative method of accepting service). See also French v. Gabriel (1991), 116 Wash. 2d 584, 806 P.2d 1234 (defendant not estopped from raising defense of insufficient service of process where plaintiff failed to show any act or statement by defendant that was inconsistent with the defense and that plaintiff relied on to his detriment).

Plaintiff also relies on the affidavit of Deputy Sheriff Geraci, which states that as a matter of general practice, when serving a municipality, he would have asked for the person “authorized” to accept service. Geraci, however, had no specific recollection of the service he made in this case, while Rotrekl testified that in fact she had no such authority.

Moreover, in view of the clear language of the statute, any reliance upon Rotrekl’s statement that she had authority to accept service would have been unreasonable. See Landreville v. Shoreline Community College District, 53 Wash. App. 330, 766 P.2d 1107 (court rejects argument that the State should be estopped from contesting service of process because the administrative assistant in the Attorney General’s office who accepted service represented that she had the authority to accept service; reliance upon her statements would be unreasonable where the statute clearly requires service upon the Attorney General or an assistant Attorney General).

We note that plaintiff made no attempt to ascertain the proper person for service and include appropriate directions for the sheriff on the summons. The summons simply gave the name “Village of Stickney” with a street address. We also note that plaintiff made the identical mistake in serving another defendant in this action. Cook County successfully moved to quash service where plaintiff served the superintendent of highways instead of the proper person authorized by statute. Cf Justice v. Lyng (D. Ariz. 1988), 716 F. Supp. 1567, 1570 (plaintiff permitted to re-serve defendant United States attorney where failure to properly serve was not a result of counsel’s inadvertence or half-hearted attempts to serve).

We conclude that the trial court erred in denying Stickney’s motion to quash service of summons and vacate default judgment.

Stickney urges us to go on to find that the underlying action is “utterly meritless” because the summary judgment proceedings involving defendant Cook County show that the location of the accident “is not and never has been within the corporate boundaries of the Village of Stickney.” In light of our holding that no personal jurisdiction existed, we need not consider the merits of plaintiff’s underlying action.

Accordingly, the judgment of the circuit court of Cook County is reversed, and the cause is remanded for further proceedings consistent with the holdings contained herein.

Reversed and remanded.

MURRAY and LORENZ, JJ., concur.


author: JUSTICE LORENZ

text:
      In re MARRIAGE OF WILSON (Bruce A. Wilson, Petitioner-Appellant, v. Kathryn M. Wilson, n/k/a Kathryn M. Hamann, Respondent-Appellee).
    First District (5th Division)
    No. 1 — 90—1299
    Opinion filed January 24, 1992.

      William A. Ensing, of Fuchs & Roselli, Ltd., of Chicago, for appellant.
    James B. Pritikin, P.C., of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Petitioner, Bruce A. Wilson, appeals from an order dismissing with prejudice his petition to modify a property settlement agreement which required him to pay maintenance to respondent, Kathryn M. Wilson. He argues that the agreement did not require a change in the tax code to adversely affect him before he could file a petition to modify the agreement. For the following reasons, we reverse and remand.

The parties’ marriage was dissolved on April 23, 1986. The maintenance provision of their property settlement agreement stated:

“The Husband shall pay to the Wife as and for her maintenance and support a specific monthly amount each month as follows:
a. The sum of $17,000.00 on the first day of the first month after the date of this Agreement, and the further sum of $4,500.00 per month *** for a period of 72 additional consecutive months thereafter, as required by Sections 71 and 215 of the Internal Revenue Code of 1954 as amended in order to preserve the deductibility of said payments; starting with the first day of the first month after the date of this Agreement. It is further agreed that: (i) in the event said Sections of the Code are hereafter changed so as to affect the aforesaid 73 consecutive month period currently in existence as a requirement of preserving the deductibility of maintenance payments, and (ii) the Wife’s income shall increase substantially (but only upon the happening of both such events), then the Husband shall have the right to petition the Court for an adjustment of his aforesaid maintenance payments.” (Emphasis added.)

At the time the parties entered into the agreement, the Internal Revenue Code provided that maintenance payments in excess of $10,000 in one year could only be deducted from the payor’s gross income if the payments continued for 73 consecutive months. (I.R.C. §71(f) (1986).) Subsequently, the tax code was amended and reduced the required period from 73 months to 37 months. I.R.C. §71(f) (1988).

On November 9, 1988, Bruce petitioned the court to modify the maintenance provision of the agreement. He alleged that an amendment to the tax code changed the required period from 73 months to 37 months and that Kathryn's income had increased substantially. He requested the court to modify the agreement and terminate maintenance payments after the 37th month, reimburse him for excess payments, and reduce future payments.

Kathryn answered the petition denying the material allegations.

In a hearing, Bruce argued he was entitled to petition the court to modify the maintenance payments because both conditions of the agreement had occurred. He contended that the tax code had changed the required period from 73 months to 37 months but conceded that the change did not affect his ability to deduct his maintenance payments to Kathryn. Kathryn responded that the first condition was not satisfied because the change in the code did not affect Bruce.

The judge interpreted the agreement as requiring the change in the tax code to adversely affect Bruce’s ability to deduct the maintenance payments before he could petition the court to modify the agreement. Because the change in the tax code did not affect Bruce, the judge dismissed the petition with prejudice on June 12,1989.

Within 30 days, Bruce filed a motion to vacate which was denied and he now appeals.

Opinion

The terms of a property settlement agreement are enforceable as a contract. (Ill. Rev. Stat. 1989, ch. 40, par. 502(e).) The interpretation of the agreement is a question of law, and a court should construe the agreement to give effect to the intent of the parties. (Rimkus v. Rimkus (1990), 199 Ill. App. 3d 903, 557 N.E.2d 638.) The parties’ intent must be ascertained from reading the language of the agreement as a whole, giving the words their plain and obvious meaning. In re Marriage of Holderrieth (1989), 181 Ill. App. 3d 199, 536 N.E.2d 946.

Bruce argues that the trial judge’s interpretation of the agreement ignored its plain language. He contends that the agreement only required an amendment to the tax code to affect the 73-month period required to preserve a deduction for maintenance payments. Because the code was amended, reducing the required period from 73 months to 37 months, the condition was satisfied although the amendment did not affect his ability to deduct his maintenance payments to Kathryn. Bruce notes that contrary to the judge’s interpretation, the agreement does not state that the change to the tax code had to affect his ability to deduct the payments.

On the other hand, Kathryn argues that the judge’s interpretation was correct and the agreement requires the amendment to the tax code to adversely affect Bruce’s ability to deduct the maintenance payments he made to her. Because Bruce concedes that the change did not affect him, he cannot petition the court to modify the agreement.

Bruce responds that, contrary to Kathryn’s argument, any change to the tax code after the date of the agreement would have been prospective and would not have affected his ability to deduct the maintenance payments.

The agreement provided that Bruce could petition the court to adjust his maintenance payments if the tax code “changed so as to affect the aforesaid 73 consecutive month period currently in existence as a requirement of preserving the deductibility of maintenance payments.” This phrase refers to the requirement of the tax code, in effect at the time of the agreement, that maintenance payments in excess of $10,000 in one year continue for 73 months to be deductible. The language used indicates that the change to the tax code had to “affect” the required 73-month period then in existence. There were no other requirements in that phrase pertaining to the tax code. Specifically, contrary to Kathryn’s argument, there was no stated requirement that the change in the tax code had to affect Bruce’s ability to deduct the maintenance payments. If the parties intended that the change had to adversely affect Bruce’s ability to deduct his maintenance payments to Kathryn, they would have stated that in the agreement. To construe the agreement according to Kathryn’s argument would require reading words into the agreement that are not present. Further, the condition would have been useless because, as Bruce notes, any future change to the tax code would not have affected him.

Additionally, reading the agreement as a whole, the condition that the 73-month period in the tax code had to change was coupled with the condition that Kathryn’s income had to substantially increase. It is clear that based on these two conditions, the parties intended that Bruce could benefit from a change to the tax code’s requirement of continuing maintenance payments for 73 months if Kathryn was in a financial position to accept a reduction in the length of time maintenance payments continued.

The first condition of the agreement only required that an amendment to the tax code affect the 73-month period. Because the tax code was amended, changing the required period from 73 months to 37 months, the first condition of the agreement was satisfied. As a result, the trial judge erred in dismissing Bruce’s petition to modify the agreement on the basis that the first condition was not satisfied.

Reversed and remanded.

McNULTY, P.J., and GORDON, J., concur.


author: JUSTICE McNAMARA

text:
    ERIC SODERHOLM, Plaintiff-Appellant, v. CHICAGO NATIONAL LEAGUE BALL CLUB, INC., Defendant-Appellee.
    First District (6th Division)
    No. 1 — 91—1234
    Opinion filed January 24, 1992.

      Lawrence Wolf Levin and Steven R. Decker, both of Chicago, for appellant.
    William F. Conlon, Richard B. Kapnick, and Jared M. Barliant, all of Sidley & Austin, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Eric Soderholm, filed a complaint for specific performance and sought a temporary restraining order and preliminary injunction to require defendant, the Chicago National League Ball Club, Inc. (the Cubs), to sell him 18 Cubs season tickets for the 1991 season. After a hearing, the trial court directed a finding for defendant pursuant to section 2—1110 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1110), and dismissed plaintiff’s complaint. The sole issue on appeal is whether the purchase of Cubs season tickets from 1985 through 1990 gave plaintiff an option to purchase season tickets for the 1991 season.

The following relevant facts were established at the hearing. In 1985, Soderholm purchased 24 Cubs season tickets for the 1985 season. At the end of the 1985 season, defendant sent plaintiff an invoice offering him the same season tickets for the next season. Plaintiff accepted by returning payment with the invoice. Plaintiff received Cubs season tickets in this manner for the 1985 through 1990 seasons. By the close of the 1990 season, plaintiff held 18 season tickets in his name and in the name of his company, the Eric Soderholm Batting Schools.

In January 1990, after hearing “rumors” that plaintiff was reselling tickets at a price above face value, defendant sent plaintiff a letter warning him as follows:

“The Chicago Cubs will not sell tickets to people who resell tickets at inflated prices. Our security reports indicate that your tickets have been repeatedly sold at above face value prices. ***
If you continue to resell your existing tickets your account will be in jeopardy of not being renewed in 1991.”

After the 1990 season, defendant informed plaintiff by letter dated November 1990 that it would not offer plaintiff 1991 season tickets because plaintiff had resold tickets in violation of defendant’s ticket policy. Defendant did not send plaintiff an invoice for the purchase of 1991 season tickets. Plaintiff sent a deposit check for 1991 season tickets which defendant returned to plaintiff. By letter dated December 20, 1990, defendant offered to sell plaintiff six season tickets for the 1991 season subject

“to all of the terms applicable to all Cubs season tickets, including the prohibition against resale at any price above face value as well as the fact that all sales are made on a one-year basis with no automatic right of first refusal or renewal.”

Defendant’s “Season Ticket Fact Sheet” which accompanied invoices sent out for 1991 season tickets provided in pertinent part as follows:

“TICKETRENEWAL PROCEDURE A deposit of $125 per seat must be mailed with the enclosed invoice by November 27, 1990. Full payment must be received by February 8, 1991. Seats will not be renewed if the above payment deadlines are not met. Season tickets and seat locations are offered on a one-year basis.”

Plaintiff filed this action for specific performance and injunctive relief in January 1991. Plaintiff testified that no agent of defendant ever represented to him orally or in writing that he had a right of first refusal for season tickets the following season. He argued that he had a contract right to the season tickets. In addition to stating that no contract existed between the parties, defendant also claimed that the unclean hands doctrine barred equitable relief because plaintiff had resold tickets above face value contrary to the conditions on the tickets. After the hearing, the court found that plaintiff failed to prove any contract right entitling him to a right of first refusal to purchase the season tickets. The court directed a finding for defendant and dismissed the complaint without addressing defendant’s unclean hands defense.

Initially, we consider plaintiff’s argument that his purchase of season tickets constituted an option contract. It is well settled under Illinois law that an option is a right acquired by contract consisting of two elements: a unilateral offer to sell and a contract to leave the offer open for a specified time. (Sutton Place Development Co. v. Bank of Commerce & Industry (1986), 149 Ill. App. 3d 513, 501 N.E.2d 143.) Moreover, an essential element for the formation of a contract is manifestation of agreement or mutual assent by the parties. (Deleon Group, Inc. v. Northern Trust Corp. (1989), 187 Ill. App. 3d 635, 543 N.E.2d 595.) Upon review of the record in this case, we conclude that plaintiff failed to show any evidence of mutual assent between the parties to enter a contract. Although plaintiff alleged in his complaint that he and defendant entered an agreement in 1985 and in each subsequent year granting him a right of first refusal to purchase season tickets, plaintiff produced no written contract or evidence of an oral agreement containing terms of an option contract. Indeed, plaintiff testified that defendant never represented to him, either orally or in writing, that his purchase of season tickets gave him an option to purchase tickets for the next year. In the absence of such agreement, we cannot conclude that the sale of season tickets to plaintiff from 1985 through 1990 obligated defendant to sell plaintiff season tickets in 1991. Rather, the invoice and “Season Ticket Fact Sheet” sent by defendant to season ticket holders at the end of the season constitute defendant’s offer to sell season tickets for the subsequent season which the offeree accepts by timely payment. Defendant did not send an invoice to plaintiff in 1990 and therefore made no offer to sell plaintiff season tickets for the 1991 season.

Few courts have considered the rights of a season ticket holder as against the season ticket seller, and this is a case of first impression in Illinois. We consider, however, the following decisions from other jurisdictions which discuss the nature of season tickets and the rights and obligations of season ticket sellers and buyers. In re Tucker Freight Lines, Inc. (Bankr. W.D. Mich. July 30, 1984), No. HK83— 02391, Adv. Pro. No. 84—0381; State Block, Inc. v. Poche (La. App. 1984), 444 So. 2d 680; Kully v. Goldman (1981), 208 Neb. 760, 305 N.W.2d 800.

In Kully, plaintiff and defendant orally agreed in 1961 that defendant would acquire eight University of Nebraska football season tickets, four for defendant and four for plaintiff. From 1961 until 1979, defendant purchased the tickets as agreed. Plaintiff filed this action in 1979 to enjoin defendant, inter alia, from doing anything to prejudice defendant’s “future ability to receive such tickets from the University.” The trial court found that an implied trust existed between plaintiff and defendant and mandatorily enjoined defendant to obtain tickets for plaintiff “for all future seasons.” (Kully, 208 Neb. at 761, 305 N.W.2d at 801.) The Nebraska Supreme Court reversed, finding that defendant had no contractual right with the university to purchase the season tickets in the future, and, therefore, no property right existed which could be the res of the subject matter of a trust.

In State Block v. Poche, the Louisiana Court of Appeals came to an opposite conclusion about the nature of season tickets in an analogous situation. That case arose from a dispute between plaintiff-corporation and its former officer over ownership of eight season tickets to Louisiana State University football games. In prior years, the tickets were issued in defendant’s name, but were paid for by plaintiff. The court relied in part upon language in the reorder form that the university sent to season ticket holders at the end of the season. The court concluded that the season tickets gave the holder, in addition to a seat at the particular games, an option to purchase tickets for the next season. The court, in characterizing season tickets as a lease with an option to renew at the end of the season, viewed the transaction as “more in the nature of a lease than [a] sale.” (State Block, 440 So. 2d at 684.) The court, however, affirmed the trial court’s dismissal of the suit on the ground that the parties failed to name the university as a party, and the court therefore lacked the authority to order the university to issue tickets in plaintiff’s name.

In re Tucker Freight Lines, decided by the United States Bankruptcy Court, is most factually similar to this case. In Tucker, plaintiff-corporation had purchased 110 season tickets for University of Notre Dame football games annually for almost 40 years. In order to accommodate the demand for tickets and to allow more people to purchase tickets, the University decided to reduce the number of season tickets offered. As a result, the University did not offer plaintiff season tickets for the 1984 football season, and plaintiff sought an injunction requiring Notre Dame to sell it season tickets as previously. The court rejected plaintiff’s claim that it had a contractual right to purchase tickets, stating in its oral opinion as follows:

“[Plaintiff claims] that this custom of receiving these tickets from Notre Dame University from year after year has somehow or other become a contract and that, therefore, [plaintiff] is entitled to continue to receive the same number of tickets, I guess, into perpetuity. [This] Court cannot agree. [Notre Dame] — without there being any contract, and there was no contract here, it is agreed there was no contract, Notre Dame had the right to sell tickets to whomever it chose.” Tucker Freight Lines, slip op. at 2-3.

While none of the above cases presents controlling authority for this court, we find the reasoning of the Kully and Tucker courts persuasive, sound and consistent with Illinois law. As in those cases, no written document or oral agreement exists here supporting an option to purchase or a right of first refusal. Moreover, we reject the State Block court’s characterization of season tickets as a lease rather than a sale.

Based upon the evidence presented and the persuasive authority from other jurisdictions, we hold that no option contract existed and plaintiff had no right of first refusal to season tickets. As such, we cannot conclude that the trial court’s denial of injunctive relief and dismissal of plaintiff’s complaint was against the manifest weight of the evidence. Fields v. Sax (1984), 123 Ill. App. 3d 460, 462 N.E.2d 983.

In his alternative argument on appeal, plaintiff claims that a season ticket is a lease, “a periodic tenancy for a period of one year,” and that defendant gave improper notice of termination. We disagree and hold that a season ticket is a revocable license.

A license grants the licensee a right to enter upon the licensor’s land and use it for a specific purpose, without giving up the licensor’s legal possession and control over the property; a lease, by contrast, grants the lessee an estate and control over the property against the lessor and all the world. (Charlton v. Champaign Park District (1982), 110 Ill. App. 3d 554, 442 N.E.2d 915.) A license is revocable at any time at the will of the licensor (O’Hara v. Chicago Title & Trust Co. (1983), 115 Ill. App. 3d 309, 450 N.E.2d 1183), and mere permission to use land does not ripen into a prescriptive right regardless of the length of time that such enjoyment is permitted. Keck v. Scharf(1980), 80 Ill. App. 3d 832, 400 N.E.2d 503.

It is clear that a Cubs season ticket consists of a series of revocable licenses, rather than a lease. The record does not suggest that defendant intended to grant a season ticket holder a leasehold estate, or exclusive possession of the specific seat. Each individual ticket permits the holder to enter the ball park on the date and at the time stated on the ticket for the specific purpose of attending the identified game and sitting in the specified seat, subject to all terms, conditions and policies established by the Chicago Cubs. Plaintiff conceded at oral argument before this court that an individual ticket to a public attraction is a license, but suggested that the purchase of a series of tickets somehow amounts to a lease. We disagree. Neither an individual ticket holder nor a season ticket holder is entitled to enter the ball park except upon the terms and conditions specified on the individual tickets and by defendant’s policies. Nothing in the record or the case law requires us to find that season tickets constitute anything more than a series of licenses. This conclusion is consistent with the authority from other jurisdictions. (Jacksonville Bulls Football, Ltd. v. Blatt (Fla. App. 1988), 535 So. 2d 626; Bickett v. Buffalo Bills, Inc. (1983), 122 Misc. 2d 880, 472 N.Y.S.2d 245; Foster v. Shubert Holding Co. (1944), 316 Mass. 470, 55 N.E.2d 772; Finnesey v. Seattle Baseball Club, Inc. (1922), 122 Wash. 276, 210 P. 679.) Moreover, as licensor, defendant was entitled to revoke the license at its option as it did here. O’Hara v. Chicago Title & Trust Co. (1983), 115 Ill. App. 3d 309, 450 N.E.2d 1183.

In summary, we conclude that no contract existed entitling plaintiff to a right of first refusal to defendant’s season tickets. Because we so conclude, we need not address defendant’s unclean hands defense.

For the foregoing reasons, the directed finding in defendant’s favor and dismissal of plaintiff’s complaint was not against the manifest weight of the evidence, and accordingly, we affirm the order of the circuit court of Cook County.

Judgment affirmed.

EGAN, P.J., and LaPORTA, J., concur.


author: JUSTICE MANNING

text:
    LOUISE JOLLY, Indiv. and as Adm’r of the Estate of William Jolly, Deceased, Plaintiff-Appellant, v. MICHAEL REESE HEALTH PLAN FOUNDATION, f/k/a Michael Reese Health Plan, Defendant-Appellee (Arnulfo V. Vieglo et al., Defendants).
    First District (1st Division)
    Nos. 1 — 89—1455, 1 — 90—1119 cons.
    Opinion filed January 27, 1992.

      Hayes & Power, of Chicago (Larry R. Rogers, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (Hugh C. Griffin, M.J. Yardley, and Diane I. Jennings, of counsel), for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

Plaintiff, Louise Jolly, filed a medical malpractice action individually and as administrator of the estate of her deceased husband, William Jolly, against Myles Standish, Drs. Richard Gainey and Arnulfo Vieglo and the Michael Reese Health Plan, Inc. (hereinafter MRHP), which was incorporated under the Voluntary Health Services Plans Act (hereinafter VHSPA) (Ill. Rev. Stat. 1983, ch. 32, par. 595). MRHP filed a motion to dismiss pursuant to section 26 of the statute, and the court granted defendant’s motion, holding that pursuant to section 26 of the statute MRHP was immune from liability. The court also held that there was no just cause to delay enforcement or appeal of its order.

In August 1988, the General Assembly amended the VHSPA. (Ill. Rev. Stat., 1988 Supp., ch. 32, par. 620.) The amendment removed the statutory immunity that was previously granted to health care providers incorporated under the VHSPA. Plaintiff’s action was pending at the time that the statute was amended, and the trial court’s ruling in favor of defendant was based on the prior statute.

Plaintiff argues on appeal that: (1) the trial court erred in relying upon the immunity clause in the VHSPA at the time it granted defendant’s motion to dismiss; (2) defendant did not meet the statutory requirements under the VHSPA sufficient to entitle it to immunity; and (3) the trial court’s grant of immunity to defendant violates the special legislation and equal protection provisions of the constitution of the State of Illinois.

From November 1984 through January 1988, plaintiff’s decedent, William Jolly, was treated by Dr. Vieglo for peptic ulcer disease at MRHP facility. According to plaintiff’s complaint, decedent was also treated once by physician’s assistant Standish on May 14, 1985, and once by Dr. Gainey on December 12, 1985. On February 10, 1988, decedent underwent an endoscopy and biopsy, after which gastric cancer was discovered. Decedent died on October 7, 1988.

Plaintiff, as administrator of decedent’s estate, filed a three-count complaint against defendant, the doctors and the assistant alleging that during the period of time that decedent was treated by physicians at MRHP he actually suffered from gastric cancer, and that the treating physicians failed to properly diagnose his illness. Plaintiff alleged that, as a proximate result of defendants’ negligent acts, decedent suffered permanent injuries and ultimately died. Plaintiff amended her complaint to also allege a wrongful death count.

Plaintiff’s initial complaint was filed on July 5, 1988. On August 30, 1988, the Illinois General Assembly amended the immunity clause of the VHSPA, preserving immunity only to those health service plan corporations that were incorporated prior to January 1, 1965. MRHP was incorporated under the VHSPA on October 13, 1972. MRHP was also federally qualified as a health maintenance organization (hereinafter HMO) on April 17,1978.

On August 24, 1988, defendant filed a motion to dismiss plaintiff’s complaint. Defendant asserted that pursuant to section 26 of the VHSPA it was not liable for medical malpractice of employees and health care providers. Plaintiff filed its response to that motion on January 20, 1989. Plaintiff argued that defendant should be denied exemption because it failed to comply with statutory requirements, and that the protection granted by the VHSPA was inapplicable because defendant was acting as an HMO and not as a health services plan corporation. The statute was amended with an effective date of August 24, 1988. The amendment provided that only health services plan corporations incorporated prior to 1965 were entitled to immunity. On May 11, 1989, after hearing arguments, the court granted defendant’s motion.

Plaintiff first argues that the trial court erred in relying on the immunity clause of the VHSPA in granting defendant’s motion to dismiss. Specifically, plaintiff contends that at the effective date of the amendment to section 26 of the VHSPA, her case was pending and that under Illinois law the court should have applied the law in effect at the time of the decision. General Telephone Co. v. Johnson (1984), 103 Ill. 2d 363, 469 N.E.2d 1067.

In Moshe v. Anchor Organization for Health Maintenance (1990), 199 Ill. App. 3d 585, 602, 557 N.E.2d 451, appeal denied (1990), 133 Ill. 2d 559, 561 N.E.2d 698, the court held that the statutory amendment to section 26 which took away immunity from health service organizations incorporated under the VHSPA cannot be afforded retroactive application. In Moshe plaintiff brought a medical malpractice action on behalf of her minor son against several physicians and Anchor Health Maintenance Organization. The complaint alleged that the doctors were negligent in failing to diagnose that the minor had ketoacidosis and in failing to hospitalize and observe the minor.

Anchor filed a motion to dismiss on the ground that it was a health service plan corporation organized and chartered under the VHSPA, and thus statutorily exempt from malpractice liability. Plaintiff argued that there was a question of fact as to whether Anchor was operating as an HMO, in which case the immunity did not apply, or whether it was providing services as a Voluntary Health Services Plans Act corporation. Plaintiff also argued that there were factual issues of whether Anchor had properly regulated physician care or otherwise violated the “unique organizational structure” required under the statute, thereby relinquishing its right to insulation from liability. Anchor countered that it had at all times during its operations been subject to supervision by the Illinois Director of Insurance, and that its charter had never been revoked. After hearing arguments and reviewing the Voluntary Health Services Plans Act and relevant case law, the court granted Anchor’s motion.

Plaintiff appealed the decision, during which time the Voluntary Health Services Plans Act was amended. The amendment provided:

“A health services plan corporation incorporated prior to January 1, 1965, operated on a not for profit basis, and neither owned [n]or controlled by a hospital shall not be liable for injuries resulting from negligence, misfeasance, malfeasance, nonfeasance or malpractice on the part of any officer or employee of the corporation, or on the part of any person, organization, agency or corporation rendering health services to the health services plan corporation’s subscribers and beneficiaries.” Ill. Rev. Stat., 1988 Supp., ch. 32, par. 620.

Plaintiff subsequently submitted a reply brief in which she argued that based on the statutory amendment, Anchor no longer was entitled to immunity. The appellate court, after extensive comment on the legislative history of the amendment, held that the presumption of prospectivity was not rebutted, and that the immunity provision, as amended, could not be afforded retroactive application. Moshe, 199 Ill. App. 3d at 602.

The facts in Moshe are similar to the facts in the instant case. In Moshe, plaintiff’s appeal was pending on appeal when the statute was amended, and in the instant case, plaintiff’s cause was pending in the trial court when the statute was amended. Therefore, we find Moshe persuasive and hold that the amendatory act does not preempt defendant’s immunity.

Plaintiff next argues that even if statutory immunity were available under the VHSPA, defendant did not meet the statutory requirements sufficient to be granted immunity. According to the statute, to qualify for the immunity granted, health services corporations are required to meet several criteria: (1) 30% of the trustees of the health plan corporation must be physicians licensed to practice in Illinois; (2) the plan must file a schedule of rates with the Illinois Director of Insurance for approval; and (3) the plan must maintain a not-for-profit status. (Ill. Rev. Stat. 1983, ch. 32, par. 601.) Plaintiff asserts that only 13% of defendant’s 15-member board were licensed physicians in 1987; thus, she argues that defendant did not comply with the statute. Plaintiff cites Brown v. Michael Reese Health Plan, Inc. (1986), 150 Ill. App. 3d 959, 502 N.E.2d 433, appeal denied (1987), 114 Ill. 2d 543, 508 N.E.2d 725, for the proposition that defendant is not entitled to claim exemption where it failed to meet all of the statutory requirements.

In Brown, plaintiff challenged the grant of immunity provided in the statute as a violation of the equal protection clauses of both the Federal and Illinois Constitutions, and as a violation of the special legislation clause of the Illinois Constitution. In granting defendant’s motion to dismiss, the court held that the unique organizational structure and regulation of the voluntary health services plans organizations provided a rational basis for providing it a grant of immunity from liability which is denied other health care providers. (Brown, 150 Ill. App. 3d at 961.) The court explained that the voluntary health services plan was distinguishable from other health care providers because “they serve[d] the unique function of both insurer and health care provider.” (Brown, 150 Ill. App. 3d at 961.) However, the court in Brown did not determine whether the grant of immunity would be withdrawn if a health service provider failed to meet one of the statutory criteria.

The primary rule of statutory construction is to ascertain and give effect to the intention of the legislature. (Stewart v. Industrial Comm’n (1987), 115 Ill. 2d 337, 341, 504 N.E.2d 84.) Where that intent can be ascertained from the language alone, it will be given effect without resorting to other aids of construction. (Peoples Gas Light & Coke Co. v. Illinois Commerce Comm’n (1987), 165 Ill. App. 3d 235, 240, 520 N.E.2d 46.) Courts are not free to engraft conditions not within the purview of the statute. Ralston v. Plogger (1985), 132 Ill. App. 3d 90, 98, 476 N.E.2d 1378.

From our reading of the provisions of the Voluntary Health Services Plans Act, we believe that the legislature has clearly carved out a separate and distinct classification of health care providers. The language of the statutory grant of immunity prior to 1988 stated:

“A health services plan corporation shall not be liable for injuries resulting from negligence, misfeasance, malfeasance, nonfeasance or malpractice on the part of any officer or employee of the corporation, or on the part of any person, organization, agency or corporation rendering health services to the health services plan corporation’s subscribers or beneficiaries.” Ill. Rev. Stat. 1983, ch. 32, par. 620.

Although plaintiff contends that defendant’s failure to meet the statutory requirement that 30% of its board members be licensed physicians, we note that the Director of Insurance has the responsibility of regulating the health services plan organizations. The Director here determined that section 5 of the VHSPA was preempted by Federal law and, therefore, unenforceable. Plaintiff’s sole authority in opposition to the Department of Insurance’s determination is Brown. However, as stated earlier, that case was concerned solely with the constitutionality of section 26. We do not feel compelled to find that the Department’s determination was incorrect in light of the regulatory power given it under the statute.

Plaintiff also alleges that defendant failed to comply with the statute by allowing Myles Standish, a physician’s assistant, to provide primary care to decedent. Plaintiff alleges that Standish made diagnoses and prescribed drugs for decedent.

Plaintiff’s claim here also is one of negligence. As already stated, defendant’s status as a VHSPA corporation entitled it to exemption from liability for negligence. The evidence in the record does not support plaintiff’s claim. The record establishes that the physician’s assistant at all times relevant to the incident was supervised by a physician. The service that the assistant rendered to decedent was a physical examination in connection with decedent’s gastric distress, and treatment with an antacid. Further, the VHSPA permits treatment by a physician’s assistant acting under professional supervision and does not limit the scope of the care which he may render. (Ill. Rev. Stat. 1987, ch. 32, par. 596(e).) Moreover, the physician’s assistant held Federal and State licenses.

For the foregoing reasons, we cannot say that the trial court erred in determining that defendant was exempt from liability.

Plaintiff finally argues that the statutory immunity granted defendant violates the special legislation and equal protection provisions of the Illinois Constitution.

We again point out that, in Brown, we upheld the constitutionality of the immunity granted VHSPA corporations. Further, in Moshe, the court noted that “Brown leaves no question about the legitimacy of the statutory immunity conferred upon all Health Plans Act corporations by section 26, prior to its recent amendment.” Moshe, 199 Ill. App. 3d at 596.

Plaintiff cites Jenkins v. Wu (1984), 102 Ill. 2d 468, 468 N.E.2d 1162, for the proposition that the legislature may not arbitrarily or without a reasonable basis exercise police powers by granting certain rights to certain classifications of persons. It is clear from Brown and Moshe that the court’s basis for excluding health services organizations incorporated under the VHSPA from malpractice liability was not arbitrary and without a reasonable basis. The court reasoned that health care providers organized under the VHSPA provide the unique roles of insurer and health care provider. Therefore, we hold that the statutory immunity granted defendant did not violate special legislation or the equal protection clause of the State Constitution.

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

Affirmed.

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