author: JUSTICE BARRY

text:
    JEFFREY F. KURE, Plaintiff-Appellant, v. KIMBERLY L. SLUSKI, Defendant-Appellee.
    Third District
    No. 3—88—0574
    Opinion filed July 27, 1989.

      Richard T. Buck, of McKeown, Fitzgerald, Zollner, Buck & Sangmeister, of Joliet, for appellant.
    Esther Joy Schwartz and Mary A. Mazurk, both of Orner & Wasserman, Ltd., of Chicago, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The plaintiff, Jeffrey E Kure, sued the defendant, Kimberly L. Sluski, in negligence for injuries he received in an auto accident. The jury found in favor of the defendant. The plaintiff appeals.

The defendant testified that on the evening of March 16, 1986, she gave the plaintiff a ride northbound on Illinois Route 171. The defendant stated that it was dark and her lights were on. As they proceeded in a 55-miles-per-hour zone, they came upon a car heading north at about 40 miles per hour. They followed the car for about a quarter of a mile, until the road changed from a no passing zone to a passing zone. She was aware of the change because she saw a sign that said “passing zone” and the center line changed from solid to broken. The defendant pulled into the southbound lane to pass. As she pulled out, she did not see any oncoming vehicles. When she pulled ahead of the other car, however, she saw an oncoming pickup truck with its lights off about four car lengths from her vehicle. The truck’s driver then turned on his lights. The defendant attempted to pull back into the right lane, but the plaintiff grabbed the wheel and tried to turn it to the left. The car went into the northbound lane, then went out of control and slid across the highway before colliding with a tree on the left side of the road.

Darvin Schultz testified that he was driving north on Route 171 at a speed of 40 to 45 miles per hour when the defendant attempted to pass him. When the defendant pulled out to pass, the cars were in a no passing zone. However, as the defendant pulled even with Schultz, the road changed to a passing zone. Schultz estimated that the defendant’s speed was at least 60 miles per hour. According to Schultz, while the defendant was in the southbound lane and slightly behind Schultz’s car, an oncoming pickup truck about 200 feet away turned on its lights. Schultz braked his car to allow the defendant’s car back into the northbound lane. The defendant’s car went into the northbound lane and then went out of control. It spun around as it crossed the highway and then collided with a tree on the left side of the road.

The plaintiff testified that the defendant began to pass in a no passing zone as they were proceeding up a hill. The defendant was driving about 73 to 75 miles per hour as she passed the car. When the pickup truck came over the hill, it was at least four car lengths away. The defendant turned back into the northbound lane but lost control of the car. The plaintiff stated that he did not attempt to turn the wheel to the left. He did not recall anything after the car went out of control.

Illinois State trooper Dale Pesavento testified that there was not a “passing zone” sign in the area where the accident occurred. He also stated that there were several “no passing zone” signs in that area.

The jury returned a verdict in favor of the defendant. The plaintiff moved for a new trial, which the trial court denied.

The plaintiff first argues on appeal that the jury’s verdict should be overturned because it was arbitrary and not based on the evidence. He contends that the jury ignored evidence that the defendant had negligently attempted to pass in a no passing zone. He also argues that the evidence of his comparative negligence was incredible and unworthy of belief.

A jury verdict should be set aside and a new trial ordered when the verdict is against the manifest weight of the evidence. (Mizowek v. DeFranco (1976), 64 Ill. 2d 303, 356 N.E.2d 32.) A verdict is against the manifest weight when the opposite conclusion is clearly evident or when the findings are unreasonable, arbitrary, and not based on the evidence. (Monier v. Winkler (1987), 158 Ill. App. 3d 724, 511 N.E.2d 246.) In making this determination, a reviewing court must view the evidence in the light most favorable to the appellee. Kemper v. McDougal-Hartmann Co. (1984), 127 Ill. App. 3d 512, 468 N.E.2d 998.

In the instant case, there was conflicting testimony as to whether the defendant was negligent in passing the vehicle. Consequently, the jury’s decision largely rested on the witnesses’ credibility. The weighing of credibility is normally within the province of the trier of fact. (Mizowek, 64 Ill. 2d at 309-10, 356 N.E.2d at 35.) Our review of the record leads us to conclude that the evidence was not so balanced in the plaintiff’s favor that the verdict should be overturned.

The plaintiff next argues on appeal that the trial court gave improper verdict forms to the jury. The trial court gave the jury Illinois Pattern Jury Instructions, Civil, No. A45.08 (2d ed. Supp. 1986), which is a general verdict form in favor of the defendant, and Illinois Pattern Jury Instructions, Civil, No. A45.06 (2d ed. Supp. 1986) (hereinafter IPI Civil 2d No. A45.06), which is a modified general verdict form in favor of the plaintiff that also addresses comparative negligence. The trial court refused to give Illinois Pattern Jury Instructions, Civil, No. A45.09 (2d ed. Supp. 1986) (hereinafter IPI Civil 2d No. A45.09), which is a general verdict form in favor of the plaintiff. The plaintiff argues that there was insufficient evidence of comparative negligence to give IPI Civil 2d No. A45.06. He further contends that the failure to give IPI Civil 2d No. A45.09 precluded the jury from making a finding in his favor undiminished by his comparative negligence.

Verdict forms must be drawn to insure that they cover every possible finding under the evidence from the viewpoints of all parties. (Hunter v. Sukkar (1982), 111 Ill. App. 3d 169, 443 N.E.2d 774.) The form of the instructions is a matter within the discretion of the trial court. Loitz v. Remington Arms Co. (1988), 177 Ill. App. 3d 1034, 532 N.E.2d 1091.

We shall first address the question of whether there was sufficient evidence of comparative negligence to give IPI Civil 2d No. A45.06. We again note that the defendant testified that the plaintiff attempted to turn the wheel to the left before the car went out of control. There was also testimony that the car came to rest off the left side of the road. We therefore find that there was sufficient evidence of comparative negligence for the trial court to give IPI Civil 2d No. A45.06. See Loitz, 177 Ill. App. 3d at 1048, 532 N.E.2d at 1099.

Turning to the question of whether the jury could only find in favor of the .plaintiff if it also found that he was comparatively negligent, we note that IPI Civil 2d No. A45.06 states in relevant part:

“We, the jury, find for the plaintiff and against the defendant and further find the following:
First. Without taking into consideration the question of damages due to the negligence of the plaintiff, if any, we find that the total amount of damages suffered by the plaintiff as a proximate result of the occurrence in question is $__
Second: Assuming that 100 percent represents the total combined negligence of the plaintiff and of the defendant, we find that the percentage of negligence that was a proximate cause of plaintiff’s injury attributable solely to the plaintiff is _percent (%).” Illinois Pattern Jury Instructions, Civil, No. A45.06 (2d ed. Supp. 1986).

As can be seen from the instruction, the jury could find in favor of the plaintiff without having to reduce his award because of comparative negligence. The instruction refers to the plaintiff’s negligence “if any” and does not preclude the jury from finding 100% of the negligence to be attributable to the defendant. In this regard, we note that the plaintiff referred to this instruction in his closing argument and urged the jury to find that all of the negligence was attributable to the defendant. We also note that the committee comments to IPI Civil 2d No. A45.06 state that if this instruction is given, it is not necessary to give IPI Civil 2d No. A45.09. (IPI Civil 2d No. A45.06, Comment, at A — 35.) We conclude that the trial court’s instructions adequately covered all of the theories of the case from the viewpoints of both parties. Accordingly, we find no error. Hunter, 111 Ill. App. 3d at 177-78, 443 N.E.2d at 780; Mackey v. Daddio (1985), 139 Ill. App. 3d 604, 487 N.E.2d 1167.

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

Affirmed.

HEIPLE and SCOTT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    RANDALL WALDSCHMIDT, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Consolidated Freightways, Inc., Appellee).
    Third District (Industrial Commission Division)
    No. 3—88—0669WC
    Opinion filed August 1, 1989,

      nunc pro tunc May 24, 1989.

      Kenneth R. Given, of Krol, Bongiorno & Given, Ltd., of Chicago, for appellant.
    Michael E. Rusin, of Stevenson, Rusin & Friedman, Ltd., of Chicago, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant appeals from an order of the Industrial Commission (Commission) which reduced the amount of penalties awarded by the arbitrator under section 19(7) of the Workers’ Compensation Act (Act) and denied penalties and attorney fees under sections 19(k) and 16a of the Act (Ill. Rev. Stat. 1987, ch. 48, pars. 138.19(l), (k), 138.16a). We affirm.

In a prior appeal this court affirmed a Commission order assessing penalties of $980 under section 19(7) as well as an award of attorney fees of $1,678 under section 16a of the Act. (Consolidated Freightways, Inc. v. Industrial Comm’n (1985), 136 Ill. App. 3d 630, 483 N.E.2d 652.) The case was remanded for further proceedings to consider additional temporary and permanent disability questions.

Following a second arbitration hearing, claimant was awarded 166/7 weeks temporary total disability, in addition to the original 223h weeks previously awarded, and was found to be permanently disabled to the extent of 25% under section 8(d)(2) of the Act. (Ill. Rev. Stat. 1987, ch. 48, par. 138.8(d)(2).) The arbitrator also awarded an additional $2,500 under section 19(7), as well as $1,606 in attorney fees under section 16a of the Act.

On review, the Commission reduced the temporary total disability slightly to a total of 39 weeks and further reduced the permanent disability finding to 12%. The Commission also reduced the section 19(7) award to $1,520 and made a finding claimant was not entitled to penalties under section 19(k) which precluded an award of attorney fees under section 16a of the Act. Claimant does not contest the Commission’s findings with respect to either temporary or permanent disability.

Initially, claimant argues the Commission improperly reduced the amount of additional 19(7) compensation. That section provides:

“In case the employer or his insurance carrier shall without good and just cause fail, neglect, refuse or unreasonably delay the payment of weekly compensation benefits due to an injured employee during the period of temporary total disability the arbitrator or the Commission shall allow to the employee additional compensation in the sum of $10 per day for each day that a weekly compensation payment has been so withheld or refused, provided that such additional compensation shall not exceed the sum of $2,500.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(1).)

In this case, the Commission reduced the arbitrator’s award to $1,520 to take into account the fact $980 had previously been awarded in the first arbitration proceeding.

Claimant initially contends section 19(1) does not limit his recovery to a maximum of $2,500 on his entire claim. Rather, he argues, he is entitled to recover up to $2,500 for each hearing held before the arbitrator or Commission. We disagree.

Nothing in the statute admits of such a construction. Additional compensation is awarded under section 19(1) based on the failure to pay weekly compensation. The number of hearings held is irrelevant since the extent of liability is determined solely by the number of days compensation is withheld up to a maximum of $2,500 on any one claim. Nothing in the statute supports claimant’s view the legislature intended to permit multiple awards of up to $2,500 for each hearing held in a particular case. The Commission did not err in reducing claimant’s section 19(1) award.

Claimant also contends the Commission erred by failing to assess additional penalties under section 19(k) of the Act. Under that section, the Commission may award up to 50% of the compensation award as a penalty when there has been an unreasonable or vexatious delay of payment, intentional underpayment, or when frivolous proceedings are instituted by the party liable for compensation. (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(k).) Where there is a delay in paying compensation, it is the employer’s burden to show it had a reasonable belief that the delay was justified. Whether the employer’s conduct justifies the imposition of penalties is to be considered in terms of reasonableness and is a factual question for the Commission. Boker v. Industrial Comm’n (1986), 141 Ill. App. 3d 51, 57, 489 N.E.2d 913, 918.

In this case, claimant predicates his entitlement to section 19(k) penalties on unreasonable delay in payment of temporary benefits. In this case, payment was not made until after the second arbitration hearing on January 6, 1986, following remand after the conclusion of the first appeal. Claimant notes the Commission made a finding respondent was not justified in delaying payment of temporary benefits after September 6, 1983. Such inordinate delay in the face of admitted liability, claimant reasons, justifies the additional sanction.

Respondent concedes that its failure to pay temporary benefits during the pendency of the first appeal justifies the award of section 19(l) penalties. It denies, however, the delay was vexatious within the meaning of the statute, arguing there was a significant dispute between the parties over the extent of claimant’s disability and the amount of compensation to which he was entitled. Respondent points to the fact that on remand claimant did not receive the entire amount of benefits to which he believed he was entitled and the Commission further reduced the arbitrator’s award of both temporary and permanent disability.

While the Commission concluded the delay in payment justified the imposition of additional section 19(7) penalties, it did not find section 19(k) penalties were appropriate under the facts. Here, the claim was paid after the hearing following this court’s remand to the Commission. The issue of extent of liability was contested and there is no claim respondent’s position was frivolous. In these circumstances, we conclude the Commission’s determination section 19(k) penalties were inappropriate is not against the manifest weight of the evidence.

Finally, claimant argues he is entitled to attorney fees under section 16a of the Act. Those fees were denied by the Commission based on this court’s decision in Boker, which held that attorney fees under section 16a are not recoverable in the absence of an award of penalties under section 19(k).

Claimant contends denial of fees cannot be justified because this court previously affirmed an award of attorney fees in the first appeal of this cause. We disagree. In the first instance, the propriety of the attorney fee award under the theory raised in Boker was not presented to this court in the first appeal of this case and, in any event, this court’s decision in the first appeal antedates our opinion in Boker in which the issue was raised and decided by the court. On the authority of Boker, the Commission properly denied attorney fees.

Accordingly, the judgment of the La Salle County circuit court is affirmed.

Affirmed.

BARRY, P.J., and McNAMARA, WOODWARD, and LEWIS, JJ., concur.


author: PRESIDING JUSTICE WOMBACHER

text:
    KENNETH L. CAMP, Plaintiff-Appellant, v. STAR ERECTION SERVICE, INC., et al., Defendants (Middleton Associates, Inc., Third-Party Plaintiff and Counterplaintiff; HCI Heinz Construction, Inc., Third-Party Plaintiff and Counterdefendant; Star Erection Service, Inc., Counterdefendant and Counterplaintiff; Transamerica Insurance Company, Intervenor-Appellee).
    Third District
    No. 3—88—0523
    Opinion filed June 8, 1989.
    Rehearing denied September 1, 1989.
    Jerome Mirza & Associates, Ltd., of Bloomington (David V. Dorris, of counsel), for appellant.

      Prusak & Winne, Ltd., of Peoria (Nathan R. Miller, of counsel), for appellee.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The plaintiff, Kenneth L. Camp, appeals the trial court’s order finding the existence of a workers’ compensation lien in favor of the intervenor-appellee, Transamerica Insurance Company (hereinafter Transamerica). Transamerica provided workers’ compensation and general liability coverage to plaintiff’s employer, HCI Heinz Construction Company (hereinafter Heinz).

The plaintiff was injured on August 25, 1981, when he fell off a ladder owned by Star Erection Service, Inc. (hereinafter Star), and was injured while employed by Heinz. Transamerica paid plaintiff workers’ compensation benefits totaling $162,809.69.

The plaintiff filed suit against Star, which counterclaimed against Heinz for contribution which eventually resulted in a verdict of $456,000, plus $118.20 in costs. The jury determined that Star was 30% at fault and Heinz was 70%. Judgment was entered against Heinz for $319,200 plus $82.74 in costs and against Star for the remainder. The plaintiff received the balance from Star, which was then completely released from this suit. Heinz, through Transamerica, paid the plaintiff $157,869.83, plus $1,819.32 in interest.

Transamerica claimed a workers’ compensation lien of $162,809.69 against the plaintiff, which equalled the amount of workers’ compensation benefits it earlier paid the plaintiff. However, a $2,500 penalty was imposed against Heinz and was not recoverable. Therefore, Transamerica’s recoverable amount was $160,309.69.

The plaintiff objected to the amount of this lien and claimed that Transamerica should not be entitled to receive the full amount of its lien; rather, the lien should be reduced to the relative proportion of fault assessed by the court (jury) in the earlier trial. The trial court found Transamerica was so entitled to the full amount of its lien and that amount should be set off against Heinz’s portion of the judgment. The trial court further found that the plaintiff was not entitled to interest of the full amount of the judgment, but only upon that amount outstanding and due after partial satisfaction of the judgment and setoff.

The plaintiff raises three issues on appeal. First, he argues that his employer, Heinz, should be limited to the jury award for damages in recovering its workers’ compensation lien. We disagree with plaintiff’s first argument. It is undisputed that Transamerica’s workers’ compensation lien was $160,309.69. The plaintiff claims this amount should be reduced to $106,000, which is 70% of the full recoverable lien.

The Workers’ Compensation Act (hereinafter the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) does not place any limitations or qualifications on the recovery of the workers’ compensation lien on the employer. The Act provides, “from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b).) The employer has a right to reimbursement of any recovery without regard to the type of damages the employee receives payment for in the third-party action. (Ullman v. Wolverine Insurance Co. (1970), 48 Ill. 2d 1, 269 N.E.2d 195.) An employer who has paid compensation to an injured employee under the Act is entitled to be reimbursed from the entire third-party recovery by the employee.

Second, the plaintiff contends that the interest generated by the unsatisfied portion of the original judgment of $319,000 should be paid to him. We also disagree with this contention. An analogous situation occurred in Emberton v. State Farm Mutual Auto Insurance Co. (1980), 85 Ill. App. 3d 247, 406 N.E.2d 219, where the insurance company covered the employer’s workers’ compensation and general liability insurance. A tort judgment was rendered in favor of the employee in addition to workers’ compensation benefits. The insurer was entitled to a refund of money paid, which was a setoff of the money the insurer previously paid as workers’ compensation benefits.

Since the setoff was proper and allowed from the insurer in Emberton and from Transamerica in this case, only that portion of the judgment exceeding the workers’ compensation lien would accrue interest. Therefore, the plaintiff was not entitled to interest on the full judgment of $319,000; rather, he was entitled to interest on $158,890.31, which is the difference between the workers’ compensation lien and the total judgment. The trial court correctly ruled that the plaintiff was not entitled to any further interest with respect to any sum he accepted as partial satisfaction of the judgment.

Finally, the plaintiff claims the workers’ compensation lien should be reduced by 70% because Heinz was found to be 70% at fault. We likewise disagree with this contention. Negligence on the part of the employer or employee does not affect the employee’s workers’ compensation award or the employer’s workers’ compensation lien. (Carver v. Grossman (1973), 55 Ill. 2d 507, 305 N.E.2d 161.) An employer, regardless of negligence, has a right to recover any workers’ compensation payments he has made to an injured employee. Negligence of either the employer or employee is not a factor in determining the value of the employer’s workers’ compensation lien. (Rochan v. Arcade Electric Co. (1987), 160 Ill. App. 3d 1, 512 N.E.2d 1295.) The trial court correctly held that Transameriea’s workers’ compensation lien should not be reduced.

Based on the foregoing, the circuit court of Peoria County is affirmed.

Affirmed.

HEIPLE and STOUDER, JJ., concur.


text:
    CYNTHIA McCOMBS, Plaintiff, v. LYLE DEXTER, Indiv., and d/b/a Dexter’s Den, et al., Defendants and Counterplaintiffs-Appellants (Victoria Patterson, Defendant and Counterdefendant-Appellee).
    Third District
    No. 3—88—0588
    Opinion filed August 4, 1989.

      Ward, Murray, Pace & Johnson, of Sterling (Lisa A. Treviranus, of counsel), for appellants.
    Pignatelli & Pignatelli, of Rock Falls (Patrick J. Liston, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

This litigation had its origin in an accident occurring on February 9, 1980, when Cynthia McCombs fell on some stairs on the premises of a tavern operated by Lyle and Lois Dexter and known as Dexter’s Den. McCombs, who was a guest at a private wedding anniversary party in the basement area of the tavern, had gone upstairs to the restroom and was returning when she fell near the bottom of the stairs and injured one foot.

McCombs filed a complaint for personal injuries and named as defendants Lyle and Lois Dexter, the tenants of the premises, and Victoria Patterson, the owner and landlord. The complaint alleged that both the tenants and the landlord were guilty of the following negligent acts or omissions:

(1) Failed to provide adequate lighting in the area of the stairs leading to the party area in the basement; and

(2) Failed to provide adequate handrails for the staircase.

The landlord filed a motion for summary judgment which asserted that a landlord is not liable for injuries occurring on premises which are in the possession and control of tenants at the time of injury. Next, the tenants Lyle and Lois Dexter filed a counterclaim for contribution against the landlord. The landlord’s motion for summary judgment was granted, and judgment was entered in favor of defendant Victoria Patterson.

Landlord Patterson next filed a motion for summary judgment on the counterclaim for contribution, and following a hearing, that motion was granted. Defendants Lyle and Lois Dexter appeal from the judgment on the. counterclaim and contend (1) that their right to contribution was not extinguished by the judgment in favor of the landlord on the first summary judgment, and (2) that the doctrine of collateral estoppel was not a bar to the counterclaim. We affirm.

The determinative issue is the first one. The Dexters argue that their action for contribution was based upon different legal theories than those contained in plaintiff’s complaint. The counterclaim alleged that the landlord was guilty of one or both of the following negligent acts or omissions:

(1) Constructed, owned and maintained a building with structural defects which resulted in plaintiff’s injuries; and
(2) Failed to provide the building with guardrails for the protection of tenants and foreseeable invitees “contrary to the requirements of code and law.”

The Dexters rely upon certain exceptions to the rule that landlords are generally not liable for injuries occurring on rented property. We have held that a landlord may be liable for latent defects existing at the time the premises were leased, fraudulent concealment of a known dangerous condition, defects causing harm which amounts to a nuisance, breach of contracts to repair the premises, and a violation of a statute or ordinance. (Gilbreath v. Greenwalt (1980), 88 Ill. App. 3d 308, 410 N.E.2d 539.) None of these exceptions were asserted in the complaint of the underlying action brought by plaintiff.

In our view, the crucial question is whether the summary judgment on the complaint, absolving Patterson from liability to plaintiff McCombs, is a bar to the Dexters’ counterclaim against Patterson for contribution. Section 2 of “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1987, ch. 70, par. 301) provides in part:

“(a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.”

The Dexters contend that the phrase “subject to liability in tort” means that an action for contribution may be premised upon legal theories of liability not contained in the plaintiff’s complaint. Certainly, there is no requirement that the bases for liability among the contributors be the same or that the basis for contribution be identical to the theory of recovery asserted in the original action. (J.I. Case Co. v. McMartin-McAuliffe Plumbing & Heating, Inc. (1987), 118 Ill. 2d 447, 462, 516 N.E.2d 260.) However, the language of the statute is plain that the basis for a contribution claim is the potential liability of both the person seeking contribution and the person from whom contribution is sought. In other words, unless both the Dexters and Patterson are subject to liability in tort, the Dexters have no right of contribution.

Patterson asserted a defense to the complaint which was ruled to bar plaintiff’s action against her as a matter of law. That judgment was not appealed and would be res judicata as to any future attempts by plaintiff to assert an action against Patterson based upon the same or different theories of liability.

We stated the doctrine of res judicata in National Tea Co. v. Confection Specialties, Inc. (1977), 48 Ill. App. 3d 650, 654, 362 N.E.2d 1150, 1153, as follows:

“Once a court of competent jurisdiction has determined a cause of action on the merits, except for a direct attack on appeal, that judgment is a bar to any subsequent cause of action between the same parties, or their privies, which was or might have been litigated in the earlier proceeding.” Accord Woolard v. United States Steel Corp. (1988), 166 Ill. App. 3d 833.

Of note here is the ruling in Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382, where plaintiff Doyle filed suit against Rhodes to recover for injuries suffered when he was struck by an automobile driven by Rhodes while at work as a highway flagman at a construction area. The defendant Rhodes sought contribution in a third-party complaint against Doyle’s employer, a highway contractor. The employer argued that a workers’ compensation claim is the sole remedy in Illinois for an injured employee against his employer and that the employer is not “subject to liability in tort” to its employee under the Contribution Act. The supreme court ruled that an employee could recover in tort against an employer if the employer failed to raise the defense of statutory immunity. The court stated:

“The potential for tort liability exists until the defense is established. *** At the time of an injury for which an employer’s negligence is partly responsible, the employer is in fact ‘subject to liability in tort’ to his employee, although that liability can be defeated depending on the response he chooses to make to his employee’s claim in the event the employee decides to sue in tort.” (Emphasis added.) 101 Ill. 2d at 10-11.

In the case at bar, the potential for Patterson’s tort liability was extinguished and her defense was established when judgment was entered in her favor and became final. Hence, there is no longer any basis for the Dexters’ contribution action.

We affirm the judgment of the circuit court of Whiteside County.

Affirmed.

WOMBACHER, P.J., and SCOTT, J., concur.


author: JUSTICE STOUDER JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY WOODS, Defendant-Appellant.
    Third District
    Nos. 3—87—0449, 3—87—0571 cons.
    Opinion filed August 4, 1989.
    BARRY, J., dissenting.
    Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Masters, State’s Attorney, of Joliet (John X. Breslin and Walter P. Hehner, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

A jury found the defendant, Gregory Woods, guilty of the offenses of armed violence and unlawful delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 38, par. 33A-2; ch. 56V2, par. 1401(c)). The trial court sentenced him to two concurrent 14-year terms of imprisonment. The defendant appeals.

Prior to trial, the defendant moved for disclosure of the name and address of the informant who tipped off the police about the defendant’s drug activities. At- the hearing on the motion, the prosecutor stated that the informant’s only role in the offenses was to introduce the defendant to an undercover police officer. The prosecutor further stated that the informant was not present when the defendant sold the drugs to the officer. The trial court denied the motion.

On the day set for trial, the court stated that it had viewed two confidential police reports in camera to determine whether they should be disclosed to the defendant. The reports, which are part of the record on appeal, stated that Jerry Stevenson was the informant who told the police that the defendant sold cannabis and cocaine. The reports further stated that Stevenson had introduced the defendant to undercover officer Kevin McCarthy. The trial court did not disclose to the defendant any information found in the reports.

The defendant subsequently moved for a continuance. Prior to trial, the defendant had served a subpoena on Jerry Stevenson. On the day set for trial, defense counsel learned that Stevenson would not honor the subpoena. Defense counsel therefore requested a continuance in order to secure Stevenson as a witness. In an affidavit accompanying the motion, the defendant alleged that Stevenson had supplied the drugs that the defendant sold to Officer McCarthy. The prosecutor argued that the defendant’s attempt to subpoena Stevenson was improper and presented an affidavit from Stevenson in support of his argument. In the affidavit, Stevenson stated that he had been out of the State from April 8 to June 30, 1986, the period in which the alleged offenses occurred. Stevenson further stated that during that time he had not contacted the defendant in order to induce him to sell drugs. The trial court denied the motion for a continuance and entered a rule to show cause why Stevenson should not be held in contempt of court.

At trial, Officer McCarthy testified that a confidential informant had introduced him to the defendant on April 3, 1986. The informant told the defendant that he was leaving town and that he was giving the defendant his customers. He further told the defendant that McCarthy was interested in buying something. McCarthy then told the defendant that he was “looking for a gram.” The defendant replied that McCarthy should contact him later at his home.

McCarthy stated in court that he tried to contact the defendant several times but was unable to do so. On April 8, 1986, he received a message that the defendant had called him. When he returned the call,' the defendant offered to sell him one-eighth of an ounce of cocaine. On April 9, 1986, the defendant sold him a substance containing cocaine.

McCarthy further testified that approximately one week later he tried to contact the defendant. The defendant returned his call and McCarthy asked him if he could purchase another eighth of an ounce of cocaine. The defendant said that he could probably sell him the drug. On April 22, 1986, the defendant sold McCarthy a substance containing cocaine. McCarthy then gave a prearranged signal and the other police officers in the area arrested the defendant. When they patted him down, they found a knife in the defendant’s pants pocket.

Officer McCarthy testified that the informant was paid for each introduction that led to a drug purchase or an arrest. He did not know how much the informant had been paid in this case but said that the usual amount was $100 for an introduction.

The defendant testified that Stevenson had introduced him to McCarthy. After being introduced, the defendant said that he did not sell drugs. Stevenson responded that the defendant knew people who did. According to the defendant, Stevenson also said that he had shown McCarthy the defendant’s house. Stevenson urged the defendant to do something for McCarthy if he should come by. Stevenson further told the defendant that McCarthy’s father had a roofing business and that the defendant probably could get a job if he helped McCarthy.

The defendant admitted that he sold cocaine to McCarthy on April 9 and April 22. He said that he did so to stop McCarthy from coming around his house. The defendant also stated that Stevenson provided the drugs that he sold to McCarthy. The defendant denied having been involved in a previous drug transaction. Subsequent testimony established, however, that in 1981 the defendant had been convicted of unlawful delivery of cannabis.

The defendant argues on appeal that the trial court erred in refusing to order disclosure of the informant’s name and address. The State contends that the trial court properly refused to order disclosure.

An important factor in deciding whether to disclose an informant’s identity is whether the informant was a participant or a witness to the charged offense. (People v. Thornton (1984), 125 Ill. App. 3d 316, 465 N.E.2d 1049.) Even if the informant is not present at the alleged offense, his identity should be disclosed if he played an important role in setting up the offense. People v. Raess (1986), 146 Ill. App. 3d 384, 496 N.E.2d 1186.

In the case at bar, the informant introduced the defendant to the undercover officer and encouraged him to sell drugs to the officer. Moreover, the defendant asserted that the informant supplied the drugs that were sold to the officer. Consequently, the informant’s testimony was material to the defendant’s entrapment defense. (People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812.) We therefore find that the trial court erred in failing to order disclosure of the informant’s name and address.

Although the defendant had subpoenaed Stevenson and attempted to bring him to trial, the failure to disclose Stevenson as the informant was not harmless error. Had disclosure been made and the defendant had all the proper facts before him, he could have moved for the State to produce Stevenson for trial. People v. Stumpe (1979), 80 Ill. App. 3d 158, 399 N.E.2d 292.

The order of the circuit court of Will County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

WOMBACHER, P.J., concurs.

JUSTICE BARRY,

dissenting:

I would affirm the circuit court of Will County in this cause, and, therefore, I must dissent.

A careful review of the record discloses a number of relevant facts omitted from the majority opinion. Defendant testified that the informant, Jerry Stevenson, had given him two packets of cocaine before he introduced defendant to McCarthy, the police officer. Defendant said that the informant instructed him to sell the cocaine to McCarthy for him so that McCarthy would not know the informant was dealing. Defendant also said that, at the time of the introduction, the informant urged defendant to do what he could for McCarthy because McCarthy could get defendant a good construction job if he was pleased with defendant. Defendant further testified that the informant said he was leaving town, and defendant did not mention seeing the informant again. Defendant also stated that after the first sale, he gave the money to the informant’s “old lady,” who said she knew where the informant was and that he had not gone out of town as everyone thought.

Defendant and McCarthy both testified about negotiations for a big sale of cocaine which occurred after the first sale. According to McCarthy, defendant said he could get two ounces for a price of $2,000 and that his “connection” wanted the money up front. Defendant says he quoted a price of $4,000 and did not mention a connection. Defendant testified that he never intended to make such a sale but rather hoped to steal the money from McCarthy. The sale never took place.

The informant was served with a defense subpoena, and according to the process server’s return, the informant has had a “sex change” operation and is now Jenny Stevenson. Documents in the record indicate that the informant came to the office of defense counsel shortly before trial to state that he/she knew nothing about the transactions involved in this case. The informant also went to the State’s Attorney’s office the same day and signed an affidavit stating that he/she had been out of Illinois from April 8 to June 30, 1986, and had no contact with defendant during this time period.

Accompanying the motion for continuance was defendant’s answering affidavit which did not deny any of the informant’s assertions but instead recited that he believed the informant would testify that he furnished the drugs and solicited defendant to deliver them. Defendant’s trial testimony, of course, indicates that this happened before defendant had been introduced to McCarthy. The informant’s affidavit only refers to the informant’s lack of involvement after McCarthy was introduced to defendant, not before. These facts do not provide much basis for finding an entrapment defense.

However, even if entrapment were properly at issue, I cannot agree that the failure of the State to reveal the informant’s name was prejudicial error. Defendant knew the informant’s name and had him/ her served with a subpoena. In addition, the informant actually came to defense counsel’s office prior to trial. Thus, defendant would have gained no advantage from disclosure that he did not already have of his own knowledge. Of course, the witness declined to appear at trial, but defendant does not demonstrate how pretrial disclosure by the State of a name and address already known by defendant would have helped defendant.

Similarly, defendant does not establish how he would have been aided by a continuance. The majority cites People v. Stumpe for the proposition that defendant could have moved for the State to produce the informant if the State had disclosed his/her identity, but that case was one involving a question of whether the testimony of the informant, whose identity had previously been disclosed, would be favorable to the defendant. The court found it would not and noted that the burden of producing the witness would have been on the State had the defendant established the relevance and materiality of the missing witness. In the case at bar, the witness is not “missing” or unknown. He/she was known by defendant, was found by a process server, appeared in counsel’s office, but nonetheless declined to appear for trial. Whatever the remedy should be for the informant’s refusal to testify, I cannot see how a pretrial order of disclosure or a continuance would have benefitted defendant in this case. Hence, the error asserted by defendant was harmless, and I would affirm defendant’s conviction.


author: JUSTICE INGLIS

text:
    FARMERS INSURANCE EXCHANGE et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF LABOR et al., Defendants-Appellants (Johnnie T. Leithoff, Defendant).
    Second District
    No. 2—88—1254
    Opinion filed August 8, 1989.
    Rehearing denied August 28, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Diane Curry Grapsas, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Joseph C. Loran, Patrick M. Kinnally, and Robert M. Foote, all of Murphy, Hupp, Foote, Mielke & Kinnally, of Aurora, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendants, the Department of Employment Security, Board of Review (Board), and the Department of Labor (Department), appeal from the judgment of the circuit court of Kane County which reversed the Board’s decision finding claimant, Johnnie T. Leithoff, eligible for unemployment insurance benefits. On appeal, defendants contend that the Board correctly determined that (1) claimant was an employee and not an independent contractor; (2) claimant did not voluntarily leave his job without “good cause”; and (3) claimant was not paid solely by commission and, as such, an exclusion from benefits would not apply to him. We reverse.

In June 1983, plaintiff, Farmers Insurance Exchange (Farmers), hired claimant, a licensed insurance agent, to work as a part-time insurance agent. In November 1983, after claimant successfully completed Farmers’ training program, he signed an “appointment agreement” (agreement) and became a full-time agent. The agreement provided that Farmers would pay claimant a commission based on the sale of insurance policies. At the same time, claimant entered into a “guaranteed income plan” (plan) with Farmers. The plan provided that Farmers would guarantee claimant an income of $1,300 per month, provided that claimant met certain sales production requirements. The plan was set up to cover claimant in those months in which claimant’s commissions totalled less than $1,300. In such a situation, Farmers would provide claimant with the difference between his actual commissions and $1,300. However, claimant would have to reimburse Farmers 50% of any amounts advanced to him under the plan.

Claimant set up an office in his home. He furnished the office, bought supplies and paid all utility bills without reimbursement from Farmers. Farmers did reimburse claimant for 50% of the cost of placing an advertisement in the local telephone book. In addition, Farmers supplied claimant with insurance applications and forms. Claimant’s business card identified him as an agent for Farmers.

Farmers did not regulate the number of hours claimant would work, but did require him to meet with the district sales manager on a weekly basis. Claimant was also obligated to submit all applications for insurance to Farmers, thus giving Farmers the opportunity to accept or reject any particular application. Claimant was permitted to submit an application to other insurance companies only if Farmers declined the opportunity to issue a policy.

In February 1984, Farmers terminated the income plan because claimant failed to maintain his sales quota. Claimant requested that he be allowed to return to part-time status with Farmers. Farmers denied claimant’s request in a letter in which the district sales manager wrote:

“I checked with the Region as to whether we would allow you to go to a part-time contract, they said no.
Therefore it appears logical to me for you to send me a letter of resignation and I’ll stop by and pick up your manual, files and etc.
Unless something has changed favorably in your production in the last few weeks, I would not recommend that you attend the district meeting Wed. I’ll be waiting to hear from you. Regards, Duane.
ES. I am sincerely sorry that this letter doesn’t have better news in it.”

Shortly thereafter, claimant resigned and filed for unemployment insurance benefits. The claims adjustor determined that claimant was eligible for benefits. Farmers challenged the adjustor’s decision, and three administrative hearings were held. Following the third hearing, the hearing referee issued his written findings agreeing with the adjustor, stating:

“Here, the claimant’s placing of business was controlled by the company. The claimant was not free to place business with other companies until he had first offered it to this company. The company had control over the acceptance or refusal of the contracts.
Also, the terms of his contract obligated him to make a certain number of client contacts each week. This was at the direction of the company.
This being the case, it cannot be said that the claimant was free from control.
Therefore, the Referee finds that the claimant was ‘in employment’ and that the exclusion under Section 212 of the Act does not apply.
In regards to the separation from work, it was the employer who was the moving party. The employer stopped making the advances and, in effect, forced the claimant to resign.
In these circumstances, it must be concluded that the claimant was discharged. He was discharged for failing to meet the employer’s expectations.
A failure to meet an employer’s production standards is not, by itself, misconduct. In this case, no evidence has been established to show that the claimant [sic] failure to meet his quota was due to any intentional or willful neglect of his job responsibilities.
Therefore, the Referee finds that the claimant was discharged for reasons other than misconduct.
The determination is affirmed.”

On January 12, 1988, the Board affirmed the referee’s decision. On February 16, 1988, Farmers filed a complaint for administrative review in the circuit court of Kane County to review the Board’s decision. On November 22, 1988, the circuit court reversed the Board’s decision. This appeal followed.

Defendants contend on appeal that the Board correctly determined that claimant was “in employment” and not subject to any exclusion under “An Act in relation to a system of unemployment insurance” (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 300 et seq.). At the outset, we note that the findings of an administrative agency on factual questions are prima facie true and correct and will not be disturbed on appeal unless they are contrary to the manifest weight of the evidence. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110; Popoff v. Department of Labor (1986), 144 Ill. App. 3d 575, 576-77; Crocker v. Department of Labor (1984), 121 Ill. App. 3d 185, 189.) It is not the reviewing court’s function to make independent determinations on questions of fact; rather, the court’s sole function is to determine whether the administrative agency’s final decision was just and reasonable. (Legal Process Service, Inc. v. Ward (1988), 165 Ill. App. 3d 83, 86; Markowski v. Edgar (1986), 151 Ill. App. 3d 176, 180.) The Act should be liberally construed for the benefit of the unemployed worker. Davis v. Board of Review of Department of Labor (1984), 125 Ill. App. 3d 67, 72.

Defendants first contend that the Board correctly determined that claimant was an employee and not an independent contractor for purposes of the Act. Farmers disagrees, contending that claimant satisfied each element of the “independent contractor” test contained in section 212 of the Act. (Ill. Rev. Stat. 1987, ch. 48, par. 322.) Section 212 of the Act provides:

“Service performed by an individual for an employing unit, whether or not such individual employs others in connection with the performance of such services, shall be deemed to be employment unless and until it is proven in any proceeding where such issue is involved that—
A. Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and
B. Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
C. Such individual is engaged in an independently established trade, occupation, profession, or business.” (Ill. Rev. Stat. 1987, ch. 48, par. 322.)

All three conditions must be met before a claimant is considered to be an independent contractor, and hence not eligible for benefits, under the Act. (Bennett v. Department of Employment Security (1988), 175 Ill. App. 3d 793, 796.) The party claiming an independent contractor exemption is held to a strict burden of proof. (Griffitts Construction Co. v. Department of Labor (1979), 76 Ill. 2d 99, 104.) In addition, the common-law definition of independent contractor, along with the concept of master and servant, does not control under the Act. (Spahn v. Department of Labor (1962), 25 Ill. 2d 482, 486; Legal Process Service, 165 Ill. App. 3d at 87.) The statutory definition of employee is a broad definition and includes relationships not ordinarily considered to constitute employment at common law. Spahn, 25 Ill. 2d at 486; Parks Cab Co. v. Annunzio (1952), 412 Ill. 549, 551-52.

The first requirement set forth in section 212 of the Act is that the claimant must be free from control over his performance. General control is all that is necessary, and the mere existence of such general control will make the claimant an employee, even though details of an assignment may be left to the claimant’s judgment. Stauffer Reducing, Inc. v. Cummins (1962), 23 Ill. 2d 567, 569; Bennett, 175 Ill. App. 3d at 797; Hart v. Johnson (1979), 68 Ill. App. 3d 968, 975.

In the case at bar, Farmers argues that claimant was “free from control” based on the specific language in claimant’s contract with Farmers. The contract stated:

“[T]he Agent [claimant] is an independent contractor for all purposes.
The time to be expended by the Agent is solely within the Agent’s discretion, and the persons to be solicited and the area wherein solicitation shall be conducted is at the election of the Agent.
The Agent shall, as an independent contractor, exercise sole right to determine the time, place and manner in which the objectives of this Agreement are carried out ***.”

In addition, Farmers contends that consistent with the contract, it in fact exercised no control over claimant. Farmers asserts that it did not control claimant’s hours, contacts, choice of office location, equipment, and did not impose a geographical limitation on his sales territory. Furthermore, Farmers states that it allowed claimant to write insurance policies for other insurance companies.

Defendants disagree, instead contending that Farmers exercised control over claimant by requiring claimant to give Farmers the right to accept or reject all policies claimant wrote. In addition, defendants assert that Farmers set up production requirements and quotas in order to maintain claimant’s loan guarantee. Defendants also point out that Farmers exercised control over claimant by denying claimant’s request to work on a part-time basis.

Initially, we note that the designation and terminology used by the parties in the contract are not controlling on this issue. (Griffitts Construction, 76 Ill. 2d at 104.) Rather, our inquiry is directed to the actual relationship, and not to the alleged relationship, that the parties in fact had. (76 Ill. 2d at 104-05.) Thus, simply because Farmers designated claimant as an independent contractor in the contract does not control our disposition of this issue.

We believe that the present case is an example of general control. Claimant was not free to write insurance policies for any company he desired, but instead had to give Farmers the opportunity to accept or reject any policy claimant wrote. It was only after Farmers rejected a policy that claimant could do business with another insurance company. Farmers also declined claimant’s request to work part-time, presumably because it had determined that it was “very hard to provide professional service if you’re not devoting 100% of your efforts to the insurance business.”

In addition, Farmers set up a sales quota and production requirements for claimant to maintain. Claimant was required to contact at least 75 potential clients each week in order to receive the loan guarantee. While Farmers argues that the income plan and employment agreement were independent of each other, we nevertheless believe that the quotas and production requirements are indicia of general control. This is especially true given that Farmers set a specific minimum number of prospective clients for claimant to contact each week. Therefore, we conclude that the Board’s determination as to the first element is not against the manifest weight of the evidence.

Under section 212, Farmers was required to satisfy each of the three elements of the “independent contractor” test. Because we conclude that Farmers did not prove the first element, we need not consider whether Farmers has met the other two conditions for an exemption. See Ill. Rev. Stat. 1987, ch. 48, par. 322; Griffitts Construction, 76 Ill. 2d at 105.

Having determined that claimant is an employee for purposes of the Act, we must next decide whether claimant voluntarily left his job without good cause. Section 601(A) of the Act provides, in pertinent part:

“An individual shall be ineligible for benefits for the week in which he has left work voluntarily without good cause attributable to the employing unit ***.” (Ill. Rev. Stat. 1987, ch. 48, par. 431(A).)

The provisions of this section are subject to five exceptions (Ill. Rev. Stat. 1987, ch. 48, par. 431(B)), none of which are applicable in the present case. The statute does not define “good cause,” but courts have defined the term as “such cause [which] justifies an employee in voluntarily departing the ranks of the employed and in joining the ranks of the unemployed.” (Burke v. Board of Review, Department of Labor (1985), 132 Ill. App. 3d 1094, 1101; see also Popoff, 144 Ill. App. 3d at 578.) In addition, “good cause” may be found in the claimant’s unique personal circumstances and should be judged by the reasonableness of the claimant’s actions in his or her own particular case. (Eddings v. Department of Labor (1986), 146 Ill. App. 3d 62, 66-67.) Whether a particular case satisfies the “good cause” test is ordinarily a factual matter for the Board to decide. Burke, 132 Ill. App. 3d at 1100; Thompson v. Board of Review, Department of Labor (1983), 120 Ill. App. 3d 1, 4.

In the present case, the hearing referee specifically found that claimant did not voluntarily leave his job without good cause. The referee stated:

“The employer stopped making the advances and, in effect, forced the claimant to resign.
In these circumstances, it must be concluded that the claimant was discharged.”

The Board agreed with the referee and affirmed his decision. We do not believe that the Board’s decision was against the manifest weight of the evidence. We make this determination by noting that a substantial unilateral change in employment may render a job unsuitable and thus entitle the claimant to benefits. (See Eddings, 146 Ill. App. 3d at 67 (uncertain employment status coupled with 40% pay reduction was sufficient to satisfy good cause); Komarec v. Illinois Department of Labor (1986), 144 Ill. App. 3d 1105, 1111-12 (substantial salary reduction rendered job unsuitable); Mangan v. Bernardi (1985), 131 Ill. App. 3d 1081, 1084-85 (wage reduction and loss of fringe benefits, including medical insurance, sufficient to satisfy good cause); Keystone Steel & Wire Division, Keystone Consolidated Industries v. Department of Labor (1976), 37 Ill. App. 3d 704, 705, 709 (30% to 47% reduction in pay good cause for leaving position).) With these considerations in mind, we believe that the Board was correct when it determined that the elimination of the income guarantee was a substantial unilateral change in claimant’s employment which entitled claimant to unemployment insurance benefits.

Defendants’ last contention on appeal is that section 228 of the Act does not apply in this case because claimant was not solely paid by commission. Section 228 states:

“The term ‘employment’ shall not include services performed by an individual as an insurance agent or insurance solicitor, if all such services performed by such individual are performed for remuneration solely by way of commission.” (Ill. Rev. Stat. 1987, ch. 48, par. 338.)

Both parties agree that claimant was an insurance agent within the context of the Act. However, they disagree as to whether claimant was paid solely by commission. Farmers argues that the loan payments directly depended on the work performed and subsequent commissions earned, thus satisfying the requirement that the agent be paid solely by commission. Farmers also argues that claimant was required to repay the loan such that claimant was actually paid solely by commission. The Board disagrees, arguing that claimant was only required to repay Farmers 50% of the income guarantee, while being allowed to keep the other 50% of the guarantee even if no sales were made. Thus, the Board argues that 50% of the income guarantee constituted income other than by way of commission such that section 228 of the Act does not apply.

In Commonwealth Life & Accident Insurance Co. v. Board of Review of Department of Labor (1953), 414 Ill. 475, the court was faced with a situation in which an insurance agent received a 20% commission on sales of insurance, with a minimum earnings guarantee of $45 per week. The insurance company guaranteed the agent $45 per week whether or not the agent sold any new insurance policies during that week. The court held that the presence of the earnings guarantee defeated the insurance company’s claim that the agent was paid solely by commission. (Commonwealth Insurance, 414 Ill. at 485.) The court made this ruling after determining that “solely” was synonymous with “exclusive,” and defining “commission” as “compensation paid for work measured by results achieved.” 414 Ill. at 484.

We believe that the Commonwealth Insurance decision supports the Board’s determination that claimant was not paid solely by commission. We do not agree with Farmers’ contention that the fact that claimant’s guaranteed income varied from month to month distinguishes this case from Commonwealth Insurance. While it is true that the agent in Commonwealth Insurance received a fixed sum per week, we believe that in both cases these amounts were remuneration other than commission.

We also disagree with Farmers’ contention that claimant was required to pay back the loan upon the termination of his agency agreement. A reading of the loan guarantee reveals that claimant was required to fully pay back the unpaid balance in the loan account. However, this amount does not include 50% of the loan that claimant was never required to pay back. The fact that claimant received 50% of the income guarantee without an obligation to repay Farmers constitutes remuneration other than commission. Thus, the exception found in section 228 of the Act is inapplicable to the unique circumstances in this case.

Because the findings of the Board were not contrary to the manifest weight of the evidence, the trial court erred when it reversed the Board’s decision. Accordingly, the judgment of the circuit court of Kane County is reversed.

Reversed.

UNYERZAGT, P.J., and NASH, J., concur.


author: JUSTICE McLAREN

text:
    JOHN HUBER et al., Plaintiffs-Appellees, v. FRANK B. SEATON, Defendant-Appellant (Richard Janowitz, Defendant).
    Second District
    No. 2—88—0705
    Opinion filed July 26, 1989.
    Rehearing denied August 30, 1989.

      John P. Callahan, of Querrey & Harrow, Ltd., of Geneva, and Victor J. Piekarski and Michael Resis, both of Querrey & Harrow, Ltd., of Chicago, for appellant.
    John M. O’Halloran, of Coleman & O’Halloran, of Chicago, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiffs, John and Joan Huber, filed a negligence action against defendants, Frank B. Seaton and Richard Janowitz, for damages sustained as the result of a fire on May 6, 1984. The jury returned a verdict for both plaintiffs and assessed damages at $40,000. Defendant Seaton’s post-trial motion was denied, and this appeal followed. Codefendant Janowitz is not a party to this appeal. We reverse.

The majority of alleged facts in this case were set out in a previous opinion issued by this court. (Huber v. Seaton (1988), 165 Ill. App. 3d 445.) We will only set out additional facts pertinent to the issues present in this appeal.

On May 6, 1984, a fire occurred at the townhouse owned by defendant Seaton and occupied by plaintiffs. At trial, plaintiffs alleged the fire was caused by the negligence of Janowitz, an independent contractor hired by defendant. Plaintiffs alleged Janowitz negligently left the valve open on a propane torch that he set down, allowing gas to escape and subsequently causing the fire. Plaintiffs also alleged Seaton negligently hired Janowitz. In particular, plaintiffs alleged that Seaton never checked to see if Janowitz was licensed to do plumbing work, and if Janowitz carried liability insurance, nor did Seaton obtain any information concerning the quality of Janowitz’s work before hiring him.

In our prior opinion, we held Seaton’s motion for summary judgment should not have been granted because a question of material fact remained as to whether Seaton negligently selected Janowitz as an independent contractor. (Huber, 165 Ill. App. 3d at 450-51.) We noted an employer is generally insulated from liability for the negligent acts of an independent contractor. (Huber, 165 Ill. App. 3d at 450, citing Gomien v. Wear-Ever Aluminum, Inc. (1971), 50 Ill. 2d 19, 21.) However, a recognized exception to the general rule exists if the employer fails to exercise reasonable care in the selection of the independent contractor. (Huber, 165 Ill. App. 3d at 450; Kouba v. East Joliet Bank (1985), 135 Ill. App. 3d 264, 267.) This court in its prior opinion held that the materials in support of the motion for summary judgment did not eliminate a potential fact question as to the issue of negligent hiring.

At the time of the first appeal, however, this court was in no position to pass upon the sufficiency of the amended complaint, the instructions or the evidence at trial. Although questions of law actually decided in a previous appeal are binding, matters concerning the merits of a controversy which were not decided by the appellate court do not become the law of the case. (Zokoych v. Spalding (1980), 84 Ill. App. 3d 661, 667.) The prior opinion did not address and resolve questions of fact.

Seaton raises three issues on appeal: (1) whether the court erroneously instructed the jury as to statutory licensing violations and absence of liability insurance; (2) whether the jury verdict was against the manifest weight of the evidence; and (3) whether the evidence supports a finding that Seaton negligently hired Janowitz.

It is well established that a cause of action exists against an employer for negligently hiring an employee he knew, or should have known, was unfit for the job so as to create a danger of harm to third persons. (Fallon v. Indian Trail School (1986), 148 Ill. App. 3d 931, 935; Malorney v. B & L Motor Freight, Inc. (1986), 146 Ill. App. 3d 265, 268; Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 338.) The Restatement (Second) of Agency describes the cause of action as follows:

“A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others ***.” Restatement (Second) of Agency §213, at 458 (1958).

Seaton first contends the trial court improperly instructed the jury as to Janowitz’s lack of a plumber’s license. The instructions in question stated Seaton could be held liable for:

“Carelessly and negligently hiring Richard Janowitz to perform plumbing services on the premises in question when he knew or, in the exercise of ordinary care, should have known that Richard Janowitz was not a licensed plumber as required under Chapter 111, Section 1101 et. [sic] seq. of the Illinois Revised Statutes.”

Plaintiffs respond by asserting the instructions in question were properly submitted to the jury to show that Seaton was negligent in hiring Janowitz. Plaintiffs argue a reasonable person would have inquired into whether Janowitz was a licensed plumber before hiring Janowitz to do the repair work. Further, that had Seaton done so, he would have found Janowitz lacked the requisite skills to do the work.

Plaintiffs also contend that section 1 of the Illinois Plumbing License Law (Licensing Law) (Ill. Rev. Stat. 1987, ch. 111, par. 1101) was enacted to protect the general public by requiring those who install plumbing to be licensed. Plaintiffs claim that they were members of the class of persons which the statute was intended to protect.

We believe the trial court erred in instructing the jury as to Janowitz’s lack of a plumber’s license. It is improper to instruct the jury as to a statutory violation when there is no evidence to show the injury or damage was proximately caused by the statutory violation. Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 390; Greenlee v. First National Bank (1988), 175 Ill. App. 3d 236, 240; Grabner v. American Airlines, Inc. (1980), 81 Ill. App. 3d 894, 900.

In the instant case, plaintiffs alleged a violation of the Licensing Law. However, plaintiffs failed to establish sufficient facts to show the alleged statutory violation (lack of a plumbing license) was proximately related to the negligent act (the propane torch valve left open). A review of the record fails to set forth any evidence showing that a person needs to have proficiency with propane torches before receiving a plumber’s license, or that a person may not operate a propane torch without a “plumber’s license.” Without a proper foundation, we fail to see how the absence of a plumber’s license was proximately related to the alleged negligent act with the propane torch. Thus, we believe the trial court erroneously instructed the jury as to the alleged statutory licensing violation in this case.

Seaton next contends the trial court improperly instructed the jury as to Janowitz’s lack of liability insurance. The instructions in question stated that Seaton could be held liable for:

“Carelessly and negligently hiring Richard Janowitz to perform plumbing services on the premises in question when he knew or, in the exercise of ordinary care, should have known that Richard Janowitz did not have any liability insurance to cover him in the performance of his work at the leased premises on the day of the occurrence.”

Seaton argues the reference to insurance was prejudicial error. In addition, Seaton asserts it was error to give such a jury instruction without first showing that the lack of insurance was the proximate cause of the fire.

Plaintiffs respond by asserting the instruction was properly submitted to the jury to show that Seaton was negligent in hiring Janowitz. Plaintiffs argue a reasonable person would have inquired into whether Janowitz carried liability insurance before hiring Janowitz to do the repair work. Further, that had Seaton done so, he would have found Janowitz lacked the requisite skills to do the work.

It is generally reversible error to inform the jury in a negligence action as to the existence or absence of insurance. (Imparato v. Rooney (1981), 95 Ill. App. 3d 11, 15.) In Imparato, the court stated that the fact that a person is insured, or not insured, has no possible bearing on the question of negligence. (Imparato, 95 Ill. App. 3d at 15-17.) The court determined that a retrial was necessary, and that “evidence of defendant’s insurer shall have no place in the retrial of this cause.” (95 Ill. App. 3d at 17.) We find the reasoning in Imparato to be persuasive in the case at bar.

We believe Seaton was prejudiced when the jury was informed Janowitz lacked liability insurance. An obvious implication of this information was that Janowitz lacked the financial resources to satisfy any judgment rendered for plaintiffs. Thus, if plaintiffs were to recover at all, they would have to recover from Seaton. More important than possible prejudice is the failure of plaintiffs to establish any relationship between lack of insurance and the negligent act of Janowitz or the negligent hiring by Seaton. There is nothing in the record to connect the lack of insurance with the cause of the fire or with Janowitz’s “particular unfitness.”

A cause of action for negligent hiring must establish that a “particular unfitness” of an applicant creates a danger of harm to a third person which the employer knew, or should have known, when he hired and placed this applicant in employment where he could injure others. Fallon, 148 Ill. App. 3d at 935.

Plaintiffs must also establish a causal relationship between the particular unfitness and the negligent act of the agent. (Woodward v. Mettille (1980), 81 Ill. App. 3d 168, 184.) In other words, plaintiffs must establish that Janowitz did not have the experience, competence and knowledge to turn off the valve of a torch and the failure to turn off the valve was a result of Janowitz’s lack of expertise.

The record is devoid of information, which Seaton could have reasonably acquired, that would have put him on notice that Janowitz had a particular unfitness. Plaintiffs argue that lack of a plumber’s license and lack of insurance is such “information.” As previously determined, such “information” was not relevant because there was no causal connection shown between this “information” and the negligent act. Woodward, 81 Ill. App. 3d at 184.

The trial record shows that Seaton had used Janowitz on other occasions for repair work, including plumbing. Janowitz had previously used a propane torch on work he performed at Seaton’s home. Seaton never had any problems or bad experience with Janowitz. In addition, Seaton never had any problems with the workmanship of Janowitz.

Plaintiffs have failed to present evidence to establish Janowitz was incompetent or inexperienced with regard to the operation of the torch valve.

Had Seaton first done a detailed investigation, requesting references, examining his prior work and calling others for recommendations, there is not a scintilla of proof that Janowitz’s work was unworkmanlike. Without some evidence, it is irrelevant that Seaton did not make as extensive an investigation as plaintiffs argue is required.

Had Seaton specifically inquired about Janowitz’s knowledge, skill or experience in the use of a propane torch, Seaton would not have been put on notice that Janowitz was incompetent or inexperienced. Janowitz, in fact, had used a propane torch in the past in doing work for Seaton without incident. Certainly, the use of a torch is not an inherently dangerous activity requiring that special precautions be taken with regard to its use. Woodward, 81 Ill. App. 3d at 176-77.

The standards to be followed by the court when considering a motion for judgment “non obstante veredicto” (j.n.o.v.) and motion for a new trial differ. Both standards are set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494. To be awarded a new trial, the movant must establish that the jury’s verdict is against the manifest weight of the evidence. (Pedrick, 37 Ill. 2d at 510.) To obtain a j.n.o.v., however, requires meeting a higher evidentiary standard commonly now referred to as “the Pedrick rule.”

“In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick, 37 Ill. 2d at 510.

The lack of evidence in this case meets both standards and establishes that Seaton was not proved to have been negligent.

For the reasons stated above, the judgment of the circuit court of McHenry County is reversed.

Reversed.

DUNN and LINDBERG, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CALVIN BUTLER, Defendant-Appellant.
    Second District
    Nos. 2—87—0247, 2—87—0248 cons.
    Opinion filed June 28, 1989.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Michael J. Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Virginia M. Ashley, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Calvin Butler, appeals the dismissal of his amended post-conviction petition, contending he was deprived of the effective assistance of his appointed post-conviction counsel. We affirm in part, and vacate and remand in part.

The defendant entered negotiated pleas of guilty to the offenses of felony theft (Ill. Rev. Stat. 1988, ch. 38, par. 16 — 1(a)(1)) and burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19 — 1). He was not admonished as to the possibility of a consecutive sentence. (107 Ill. 2d R. 402(a)(2).) Following a hearing in aggravation and mitigation and review of the defendant’s presentence report, on May 18, 1984, the court imposed concurrent 30-month terms of probation for each offense, with the condition he perform 100 hours of public service on the theft and 150 hours of public service or full-time employment on the burglary. The defendant was admonished he must withdraw his guilty plea within 30 days if he wished to appeal the judgment and sentence. 107 Ill. 2d R. 605(b).

Upon the defendant’s failure to comply with these conditions of probation, probation for both offenses was revoked on June 29, and he was sentenced immediately to two- and four-year concurrent terms of imprisonment in the Department of Corrections, respectively, for the offenses of theft and burglary He filed notices of appeal that same day which later were allowed to be withdrawn. On July 2, he filed a motion to reconsider the revocation, alleging inter alia that he was entitled to a presentence investigation and sentencing hearing. After a hearing that day, the trial court ruled the revocation of the theft probation would stand, but the sentence would be vacated and a hearing held. As to the burglary offense, the court vacated the defendant’s sentence, credited him with 150 hours of public service and reinstated his probation.

After a hearing in aggravation and mitigation on the theft offense, at which the defendant was provided an opportunity to amend or supplement the previously prepared presentence report, the court sentenced the defendant on July 13 to a four-year term in the Department of Corrections. Nothing in the record supports the defendant’s statement that he also was ordered to pay restitution. Defendant filed a notice of appeal.

Also on July 13, the court granted the State leave to file a petition for revocation of the defendant’s burglary probation alleging four misdemeanor offenses then pending against him. Following a hearing on July 20, the defendant was found in violation of his burglary probation, and it was revoked. On July 27, he was sentenced to a seven-year term in the Department of Corrections to be served consecutively to his four-year sentence for theft, and he appealed.

The burglary and theft appeals were consolidated, and both revocations of probation and sentences were affirmed by this court. (People v. Butler (1985), 137 Ill. App. 3d 704.) In his theft appeal, the defendant raised three issues: (1) whether the terms and conditions of his probation were too vague and ambiguous to inform him of his obligations; (2) whether the trial judge improperly assumed the role of prosecutor by questioning witnesses at the sentencing hearing; and (3) whether he was deprived of the effective assistance of counsel in that counsel presented witnesses at the sentencing hearing whose testimony undermined representations made in his prior motion to reconsider and by failing to move for a substitution of judge. In his burglary appeal he raised two issues: (1) whether he was deprived of the effective assistance of counsel for failing to seek a substitution of judges for cause at the second revocation hearing and (2) whether the seven-year sentence was excessive.

In 1986, the defendant filed a pro se petition for post-conviction relief from both his convictions. His appointed post-conviction counsel filed an amended petition alleging, inter alia, that the defendant was denied the effective assistance of trial counsel in that (1) counsel neither advised nor consulted with him about the withdrawal of the notices of appeal and substitution of the motions to reconsider; (2) counsel did not inform him of the risks associated with a motion to reconsider; (3) counsel did not inform him that violation of his concurrent probationary sentences could result in consecutive sentences of imprisonment; and (4) counsel did not bring to the sentencing court’s attention the fact its sentences were in the nature of resentencings subject to the provisions of 5 — 5—4 of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—4), which prohibit the imposition of a more severe sentence than that originally imposed when a conviction or sentence has been set aside on direct review or on collateral attack.

On January 20, 1987, the court granted the State leave to file its motion to dismiss the amended post-conviction petition. In its order dismissing the defendant’s amended post-conviction petition, the court noted the issue of competency of trial counsel was addressed by this court in the defendant’s direct appeal from the revocations and concluded that the defendant had failed to show his trial counsel’s performance was so deficient and so serious an error as to deprive him of the counsel guaranteed by the sixth amendment or that he was prejudiced. The defendant then brought the instant appeals, which we consolidated for review.

NO. 2-87-0247

THEFT

The defendant asserts he was deprived of the effective assistance of post-conviction counsel. He points out the meritorious issue of his improperly increased sentence for theft from two years to four years upon his motion for reconsideration was not raised by appointed appellate counsel on direct appeal, nor was the ineffectiveness of appellate counsel due to this failure raised by his appointed post-conviction counsel. Defendant relies on section 5 — 8—1(c) of the Code, which allows a reduction or modification of a sentence within 30 days of its entry, but expressly prohibits an increase in the sentence. Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-l(c).

The State argues against the meritoriousness of the issue. It contends the court’s original two-year sentence was a nullity since a formal sentencing hearing pursuant to section 5 — 4—1 of the Code had not been held following revocation of probation as required by section 5 — 6—4 of the Code. (Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 4—1, 1005 — 6—4(h).) Accordingly, it contends the court had the authority to set aside a sentence which was beyond its authority to enter (People v. Wade (1985), 137 Ill. App. 3d 878, aff’d (1987), 116 Ill. 2d 1) and to impose the four-year sentence following the required sentencing hearing at which the court found the defendant’s testimony at the prior revocation hearing concerning his employment status was intentionally misleading. The State posits the instant cause is analogous to People v. Adams (1988), 169 Ill. App. 3d 312. There, the court held that imposing a 12-year sentence after the defendant withdrew his guilty plea, for which he had received a 10-year sentence, did not violate the fourteenth amendment or the sentencing statute codifying the defendant’s right to be free from vindictiveness in resentencing inasmuch as the increased sentence was based on identifiable conduct justifying it. As such, the State argues appellate counsel’s failure to challenge the increased sentence cannot be considered to be patently wrong, and the issue is barred under principles of res judicata. It follows then, the State argues, that post-conviction counsel was not ineffective for failing to assert an issue barred by res judicata, and, moreover, the issue of appellate counsel’s ineffectiveness was not raised in the defendant’s amended post-conviction petition, thus waiving the issue.

The defendant replies that Wade is inapplicable here because the two-year sentence originally imposed for theft was within the statutory sentencing range unlike the probation imposed in Wade for which the defendant there was statutorily ineligible. Further, the Adams case relied on by the State did not deal with the sentence reconsideration statute at issue here (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8— 1(c)), nor, in fact, was the resentencing statute (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—4) found applicable in that case where the defendant's conviction was neither set aside on direct review nor collateral attack but, rather, was set aside as a result of the defendant’s withdrawal of his guilty plea. As to the State’s res judicata and waiver arguments, defendant points out those principles are inapplicable here where the ineffectiveness of appellate and post-conviction counsel are the ultimate issues presented. People v. Barnard (1984), 104 Ill. 2d 218.

We agree the issue of the increased sentence is not barred under principles of res judicata where the failure to raise the issue may have been due to the ineffectiveness of appellate counsel and where the failure to raise the issue of the ineffectiveness of appellate counsel is alleged to stem from the incompetency of post-conviction counsel. People v. Barnard (1984), 104 Ill. 2d 218, 229; People v. Frank (1971), 48 Ill. 2d 500, 503.

It has been stated that the right to the effective assistance of counsel is dependent upon the right to counsel itself. (People v. James (1986), 111 Ill. 2d 283, 291, quoting Evitts v. Lucey (1985), 469 U.S. 387, 397 n.7, 83 L. Ed. 2d 821, 830 n.7, 105 S. Ct. 830, 836 n.7.) A criminal appellant pursuing a first appeal as of right has a right to counsel (Douglas v. California (1963), 372 U.S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814), which, in turn, encompasses the right to the effective assistance of counsel (Evitts, 469 U.S. at 396, 83 L, Ed. 2d at 830, 105 S. Ct. at 836; McMann v. Richardson (1970), 397 U.S. 759, 25 L. Ed. 2d 763, 90 S. Ct. 1441). In contrast, the right to counsel at post-conviction proceedings is a matter of legislative grace and favor which may be altered by the legislature at will. People v. Ward (1984), 124 Ill. App. 3d 974.

The principles governing claims of the ineffectiveness of criminal defense counsel set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and adopted in Illinois in People v. Albanese (1984), 104 Ill. 2d 504, apply on direct appeal and in a motion for a new trial as well. (466 U.S. at 697, 80 L. Ed. 2d at 700, 104 S. Ct. at 2069.) A post-conviction proceeding is not an appeal but is a collateral attack on a judgment. People v. James (1986), 111 Ill. 2d 283, 290.

In order to prevail on an ineffectiveness claim under the Strickland standard, the defendant must show that counsel’s performance was deficient and that this deficient performance prejudiced him. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) To overcome the presumption that counsel’s performance fell within the wide range of professionally competent assistance, the defendant must prove that counsel’s representation fell below an objective standard of reasonableness. (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065; People v. Owens (1989), 129 Ill. 2d 303, 309.) To show he was prejudiced by counsel’s deficient performance, the defendant must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; Owens, 129 Ill. 2d at 309.) Although appellate counsel is not required to brief every possible issue on appeal (Jones v. Barnes (1983), 463 U.S. 745, 77 L. Ed. 2d 987, 103 S. Ct. 3308), the failure to raise an issue on appeal which is patently meritorious can constitute incompetence. People v. Frank (1971), 48 Ill. 2d 500, 505.

As to counsel appointed to represent a petitioner under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1 et seq.), the appointment of an attorney is but an empty formality unless proper representation is afforded. (People v. Garrison (1969), 43 Ill. 2d 121, 123; People v. Wilson (1985), 132 Ill. App. 3d 48, 50.) The quality of representation required of counsel appointed to represent an indigent prisoner in proceedings under the Act was set forth in People v. Slaughter (1968), 39 Ill. 2d 278, 285:

“The [Act] can not perform its function unless the attorney appointed to represent an indigent petitioner ascertains the basis of his complaints, shapes those complaints into appropriate legal form and presents them to the court.”

To this end, Supreme Court Rule 651 requires appointed post-conviction counsel to file a certificate indicating he consulted with petitioner, examined the trial record, and made any necessary amendments to the defendant’s pro se post-conviction petition. (107 Ill. 2d R. 651(c).) Failure of counsel to file the certificate has been held to be harmless error, however, where examination of the record clearly indicates that counsel met the requirements of the rule. (People v. Bone (1987), 154 Ill. App. 3d 412.) Although post-conviction counsel need not amend the petition to raise frivolous allegations, meritorious allegations should be raised. People v. Townsel (1973), 14 Ill. App. 3d 105.

No Rule 651(c) certificate appears in this record, but examination thereof indicates counsel conferred with the defendant, requested transcripts of the trial proceedings and amended defendant’s pro se petition. We find counsel’s amendment of the petition was not deficient with respect to the sentence modification issue.

As the defendant argues, the two-year sentence originally imposed by the court for theft was within the sentencing range for that offense as distinguished from the sentence of probation imposed in People v. Wade (1985), 137 Ill. App. 3d 878, affd (1987), 116 Ill. 2d 1, relied on by the State., for which the defendant there was ineligible. Although we agree that Wade is distinguishable, we nevertheless agree with the thrust of the State’s argument that the original two-year sentence imposed was a nullity in that the court was without the authority to enter it. ''

It is well established that a defendant may waive the right to a hearing in aggravation and mitigation as provided in section 5 — 4—1 of the Code. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 4—1.) However, except in accordance with the provisions of section 5 — 3—1 of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 3—1), a defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court (People v. Youngbey (1980), 82 Ill. 2d 556, 561-65), and this requirement applies to resentencing following probation revocation (People v. Harris (1985), 105 Ill. 2d 290, 299; People v. Farmer (1988), 176 Ill. App. 3d 436). Moreover, a defendant may not waive the requirement of section 5 — 3—1 either by an express waiver or by failing to object to the absence of the report since the presentence report is not a personal right that is for a defendant’s benefit alone. Harris, 105 Ill. 2d at 301-02; Youngbey, 82 Ill. 2d at 560-65.

Even though there was a presentence report prepared here at the time the defendant was placed on probation approximately one month before the revocation proceedings, the defendant was not given the opportunity to present any “additional information” before the court sentenced him. (Cf. People v. Walker (1987), 164 Ill. App. 3d 133, 137-38 (additional presentence investigation report not necessary in a probation revocation proceeding where trial court considered a presentence investigation report when the defendant was originally placed on probation, and that report, or an update thereof, is relatively current and the defendant is given the opportunity to present any additional information); see also People v. Brady (1988), 172 Ill. App. 3d 1079.) Accordingly, the two-year sentence initially imposed by the court upon revocation of probation was per se invalid, and section 5 — 8—1(c) was inapplicable. It was within the court’s discretion subsequently to impose the four-year sentence after reconsidering the previously prepared presentence report and affording the defendant a hearing in aggravation and mitigation as he requested in his motion to reconsider. In this regard, the defendant’s poor conduct while on probation was'a proper factor for the court to take into consideration in assessing his history, character and rehabilitative potential (People v. Gaurige (1988), 168 Ill. App. 3d 855, 868-69; People v. Reznick (1986), 141 Ill. App. 3d 593, 597), as was the defendant’s perceived perjury during the revocation hearing (People v. Moffitt (1985), 138 Ill. App. 3d 106). The defendant’s motion to reconsider did not request sentence modification or reduction but, rather, it alleged — correctly so — that he was entitled to a presentence investigation and sentencing hearing.

We conclude the issue characterized here by the defendant as “patently meritorious” was not so and find post-conviction counsel was not ineffective for failing to amend the post-conviction petition to include a claim of the ineffective assistance of appellate counsel based on this issue.

NO. 2-87-0248

BURGLARY

The defendant further asserts he was deprived of the effective assistance of his appointed post-conviction counsel in that the meritorious issue of his improper consecutive seven-year sentence for burglary, which was not raised on direct appeal, also was not included in the amended post-conviction petition by way of a claim of the ineffective assistance of appellate counsel. The defendant argues that because he was not advised of the possibility of the imposition of consecutive sentences at the time he entered his guilty plea, it was not an available disposition at the initial sentencing and, thus, also was not available upon resentencing after revocation of his probation. Section 5 — 6—4 of the Code provides that if the court finds a defendant has violated a condition of his probation, it may “impose any other sentence that was available under section 5 — 5—3 [Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3] at the time of initial sentencing.” (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 6—4(e).) The defendant requests his consecutive sentence be modified to run concurrently with his four-year sentence for theft.

The State argues this issue is waived under the provisions of section 122 — 3 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 3) because the defendant’s amended petition does not allege he was denied the effective assistance of appellate counsel, nor does it allege the trial court’s guilty plea admonishments precluded the imposition of a consecutive sentence. The State also asserts the issue of the improper imposition of a consecutive sentence is not of constitutional stature and it may not be raised in a post-conviction petition.

The State’s waiver argument is unpersuasive. As noted above, principles of waiver do not bar issues from consideration where the alleged waiver stems from the incompetency of counsel. (People v. Barnard (1984), 104 Ill. 2d 218.) The issue of the competency of counsel is clearly one of constitutional proportions which is cognizable in a post-conviction proceeding (Barnard, 104 Ill. 2d at 229), as is the issue of whether the defendant’s guilty plea was intelligently and voluntarily made (People v. Akers (1985), 137 Ill. App. 3d 922, 926).

Addressing the merits of the issue, the record shows the defendant was not admonished as required by Supreme Court Rule 402 (107 Ill. 2d R. 402(a)(2)) about the possibility of a consecutive sentence prior to entry of his guilty plea for the offense of burglary. The defendant was admonished only that he could be sentenced “for a definite period of time between 3 and 7 years, plus 3 years’ mandatory supervised release on that charge.” The defendant argues the lack of an admonishment concerning the possibility of a consecutive sentence at the time a guilty plea is entered has been found to bar imposition of such a sentence upon revocation of probation. In support, he cites People v. Willingham (1976), 38 Ill. App. 3d 612, 615, and People v. Eisenberg (1982), 109 Ill. App. 3d 98.

Generally, a violation of a statute or procedural rule which does not constitute a deprivation of fundamental rights is not cognizable under proceedings for post-conviction relief. (Akers, 137 Ill. App. 3d at 926; People v. Wenger (1976), 42 Ill. App. 3d 608.) Notwithstanding that general rule, noncompliance with Supreme Court Rule 402 is relevant in a post-conviction proceeding inasmuch as the record must demonstrate that the defendant’s plea was intelligently and voluntarily made. (Akers, 137 Ill. App. 3d at 926.) A court’s failure to substantially comply with Supreme Court Rule 402 by stating the minimum and maximum sentence to which the defendant is subject, “including *** the penalty to which the defendant may be subjected because of *** consecutive sentences” (107 Ill. 2d R. 402(a)(2)), renders a defendant’s guilty plea involuntary. Akers, 137 Ill. App. 3d at 926-27; People v. Lundeen (1977), 55 Ill. App. 3d 799.

In People v. Flannigan (1971), 131 Ill. App. 2d 1059, 1064-65, the court stated:

“Where a defendant is charged with more than one crime, the manner in which he may have to serve the sentences imposed for those crimes, whether consecutively or concurrently, is obviously a consequence of his plea, and must be considered as crucial to his decision as the admonition on the maximum penalty for each of the charges.
*** The validity of defendant’s guilty plea must be reviewed in the posture in which that plea was entered and defendant is entitled to enter his plea with full knowledge of the possible consequences of that plea as they exist at that time.”

As noted above, the defendant has framed the issue here in the context of the ineffective assistance of counsel. Appellate counsel did not raise the issue of consecutive sentences on direct appeal from the revocation order, and post-conviction counsel’s amended petition neither raised the issue of the ineffectiveness of appellate counsel for failure to raise the consecutive-sentence issue nor raised the issue of the voluntariness of the defendant’s plea.

We find the imposition of consecutive sentences upon the defendant in the absence of the appropriate admonishment required by Supreme Court Rule 402 (107 Ill. 2d R. 402(a)(2)) was a meritorious issue which, if raised by post-conviction counsel, would have affected the outcome of the proceeding. Willingham and Eisenherg, although distinguishable in that they were direct appeals and Eisenherg involved periodic imprisonment and an extended term rather than probation and a consecutive sentence, nevertheless support defendant’s contention that where the court is aware of the possibility of consecutive sentences, such sentences may not be imposed in the absence of an admonishment as to that possibility prior to plea. (Willingham, 38 Ill. App. 3d at 615; Eisenherg, 109 Ill. App. 3d at 100; see also People v. Flannigan (1971), 131 Ill. App. 3d 1059, 1063-65; People v. Wills (1974), 23 Ill. App. 3d 25, 32, affd in part, rev’d in part on other grounds (1975), 61 Ill. 2d 105.) The defendant’s guilty pleas here were entered the same day; accordingly, the court was aware that a consecutive sentence was an available disposition inasmuch as defendant’s theft and burglary offenses were not part of “a single course of conduct during which there was no substantial change in the nature of the criminal objective.” Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—4(a).

Although the defendant requests his sentences be modified to run concurrently, we believe the proper disposition of this case, considering the procedural posture, is to vacate the court’s order dismissing the amended post-conviction petition inasmuch as post-conviction counsel was ineffective in presenting defendant’s claim, vacate the sentence imposed for burglary, vacate the defendant’s plea of guilty of burglary, and remand the cause to give the defendant an opportunity to plead anew. This is essentially the result reached in Akers (137 Ill. App. 3d at 927, 929).

The judgment of the circuit court of Lake County in No. 2 — 87— 0247 is affirmed.

The judgment of the circuit court of Lake County in No. 2 — 87— 0248 is vacated; the defendant’s sentence and plea are vacated, and the cause is remanded so the defendant may plead anew.

No. 2 — 87—0247, affirmed.

No. 2 — 87—0248, vacated and remanded.

DUNN and McLAREN, JJ., concur.