author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN PAUL TRIPP, Defendant-Appellant.
    Fifth District
    No. 5 — 92—0550
    Opinion filed August 2, 1993.

      Bruce D. Stewart, of Stewart, Lambert & Beggs, of Harrisburg, for appellant.
    Terry M. Green, State’s Attorney, of Benton (Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

On November 28, 1988, defendant, Stephen Paul Tripp, pleaded guilty to two counts of theft and four counts of murder in the deaths of two different victims. Defendant was subsequently sentenced to natural life imprisonment. Three years later, defendant filed a post-conviction petition alleging his pleas were involuntarily entered because he was never properly admonished that the minimum sentence for multiple murders was mandatory life imprisonment. Following an evidentiary hearing, defendant’s petition for post-conviction relief was denied. Defendant appeals and raises two issues for review: (1) whether the trial court erred in denying the petition for post-conviction relief because defendant was denied due process of law by the trial court’s failure to advise him, prior to acceptance of his guilty pleas, that the minimum sentence for multiple murders was natural life imprisonment and (2) whether the trial court erred in denying defendant’s petition for post-conviction relief because defendant was denied effective assistance of counsel by his attorney’s failure to advise him, prior to the entry of his guilty pleas, that the minimum sentence for multiple murders was natural life imprisonment. We reverse the trial court’s order denying post-conviction relief; we vacate defendant’s murder convictions and we remand to the circuit court with directions that defendant be allowed to plead anew.

On October 26, 1986, the bodies of Rick Stroud and George Brunton were discovered at Brunton’s farm in Franklin County, Illinois. Both victims had been beaten, shot, and robbed. Eighteen months later, defendant was apprehended in New Mexico; he confessed to the crimes and was returned to Illinois. Originally, defendant pleaded not guilty to the double murder, but he entered a change of plea on November 28, 1988.

At the plea hearing, the court was informed that in exchange for defendant’s pleas of guilty to all six charges, the State had agreed to waive the death penalty. Defendant was informed of the nature of the charges against him. He was further admonished that he had a right to remain silent, that he had a right to persist in his not-guilty plea, and that if he pleaded guilty he was waiving his right to a jury trial and the right to confront the witnesses against him. (134 Ill. 2d Rules 402(a)(1), (a)(3), (a)(4).) With respect to the minimum and maximum sentence which could be imposed, the trial court advised defendant that he could be sentenced to a determinate term of 20 to 40 years’ imprisonment or an extended term of 40 to 80 years’ imprisonment and that the maximum possible sentence was natural life imprisonment. (134 Ill. 2d R. 402(a)(2). Defendant acknowledged that he understood the possible range of sentences recited by the court. The court accepted defendant’s pleas, entered judgment on the verdicts, ordered a presentence investigation report, and set the cause for sentencing six weeks hence. The parties do not now dispute that the court’s admonishment on the range of penalties was erroneous as section 5 — 8—1 of the Unified Code of Corrections mandates a minimum sentence of natural life imprisonment for multiple murders. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(1)(c).

The parties appeared at sentencing prepared to put on evidence in aggravation and mitigation. Apparently, by this time, the trial judge discovered that the statute provided a mandatory term of natural life imprisonment. The sentencing transcript is three pages long and provides in pertinent part:

“THE COURT: Okay, I would point out to those present here that in this particular case the statute provides that a person found guilty of murdering more than one victim shall be sentenced to a term of natural life imprisonment. That factor has been discussed with the defendant and he has indicated through his attorney that the Court should go ahead and impose that sentence and that there would be no necessity to put on any factors in aggravation or mitigation in any kind of attempt to reduce the sentence down to one of a determinate sentence to the Department of Corrections. The Court, under that particular section, has no alternative but to impose a mandatory natural life term of imprisonment. So, with regard to Count I and Count IV of the Indictment, this Court will impose a term of natural life in prison. Counts II and III, the Judgments of conviction will be vacated. With regard to the offense of Theft, *** Counts V and VI, the Court will impose a term of 5 years on each of those, to run concurrently. There is no provision, of course, for mandatory supervised release on a natural life sentence.
Now, Mr. Tripp, do you have any question at all about that sentence?
DEFENDANT: I guess not, Your Honor.”

The court then informed defendant of his right to appeal and the lecessity of filing a motion to withdraw his guilty pleas under Supreme Court Rule 604(d). (134 Ill. 2d R. 604(d).) Defendant did not file a motion to withdraw his guilty pleas; no direct appeal was taken.

On January 9, 1992, defendant filed a petition for post-conviction relief alleging he was denied due process of law and effective assistance of counsel because neither the court nor his counsel advised him, prior to entry of his pleas, that the minimum possible sentence for murdering more than one person was natural life in prison. Defendant alleged these failures rendered his pleas involuntary. He requested that his convictions and sentence be vacated and that he be allowed to plead anew.

Defendant’s petition for post-conviction relief proceeded to hearing on July 30, 1992. Defendant testified that he was never advised by his attorney or the court, prior to acceptance of his guilty plea, that the minimum sentence which must be imposed would be natural life imprisonment. Tripp further testified that it was his understanding at the time he pleaded guilty that he could possibly receive a sentence ranging from 20 to 80 years’ imprisonment. His pleas were entered in reliance on such a possibility. He further testified that he would not have pleaded guilty had he known the minimum mandatory term was natural life imprisonment. Tripp also testified that on the date of the plea hearing, he was under the influence oi prescription medication which affected his ability to understand the nature of the proceedings at that time. On cross-examination, defendant admitted that at the time his pleas were entered, the court advised him that the maximum possible penalty which could be imposed was natural life imprisonment. However, Tripp testified that the first time he was advised that natural life imprisonment was, in fact, the minimum penalty that could be imposed was on the date of sentencing.

Bernard Paul, defendant’s attorney at the time of the plea and the sentencing hearing, was called as a witness for the State. Counsel testified that just prior to the sentencing hearing, the judge hele an in-chambers conference with the two attorneys. Defendant was not present at the conference. At this meeting, the judge advisee the attorneys that he had just discovered that defendant must be sentenced to natural life imprisonment. The judge told counsel that he should advise his client that he could persist in his pleas and be sentenced to natural life or he could withdraw his guilty pleas. Counsel testified that he then conducted a private conference with defendant and several of defendant’s family members. Mr. Paul testified that he advised defendant that he could persist in his pleas and be sentenced to natural life or he could withdraw his guilt} pleas, but if he did withdraw his guilty pleas the State would have the option of seeking the death penalty. Counsel was not sure whether he told defendant that he could move to withdraw his pleas that very day or whether he told defendant he could file such a motion within 30 days. Counsel stated that the private discussion wit! his client took between 30 to 45 minutes, and at the end of the discussion, defendant decided to persist in his pleas. Mr. Paul testifiec that he never advised his client to persist in the pleas in order tc avoid the possibility of the death penalty. He left that decision up tc defendant. Counsel further stated that although defendant was upset, he appeared coherent throughout the discussion, and counsel believed defendant fully understood the implications of persisting in his pleas. On cross-examination, counsel readily conceded that, at the time of the plea hearing, both attorneys and the judge were under the mistaken impression that defendant could be sentenced to a minimum term of 20 years’ imprisonment.

At the post-conviction hearing, the judge stated that it was his recollection that, at the time of sentencing, he advised Mr. Paul to tell his client that he could either persist in his pleas and receive a natural life sentence or he would be allowed to withdraw the pleas. After the judge made his statement, Mr. Paul testified that this comported with his own recollection of what had occurred on the day of sentencing.

Defendant countered that the discussion with his attorney took only about five minutes. He admitted that his attorney advised him of the mandatory life term and that this information upset him. However, defendant testified that his attorney did not tell him that he could withdraw his guilty pleas that very day. Defendant did admit that counsel advised him that he could change his pleas “within a certain period of time, afterwards.” Furthermore, defendant conceded that, after he was sentenced, the court advised him about “some time limit” to withdraw his pleas. Finally, defendant testified that he believed his only option was to accept the sentence of mandatory life imprisonment and that counsel advised him to persist in bis pleas. At the conclusion of the hearing, defendant’s petition for post-conviction relief was denied. This appeal ensued.

As a preliminary matter, we must address the State’s contention that the defendant has waived any allegations of error by failing to file a motion to withdraw his guilty pleas and perfect a direct appeal. However, the law is well settled that defendant does not waive the right to proceed under the Post-Conviction Hearing Act (725 ILCS 5/122 — 1 et seq. (West 1992)) by failing to file a post-trial motion or a direct appeal. (See People v. Rose (1969), 43 Ill. 2d 273, 279, 253 N.E.2d 456, 460-61; People v. Tice (1992), 235 Ill. App. 3d 118, 119, 600 N.E.2d 920, 921.) As our supreme court has noted, the Post-Conviction Hearing Act provides a separate remedy, the availability of which is not contingent upon exhaustion of any nther remedy. (Rose, 43 Ill. 2d at 279, 253 N.E.2d .at 460.) While failure to take a direct appeal may waive claims of nonconstituional error, it does not bar review of constitutional claims raised in a post-conviction petition. (See Rose, 43 Ill. 2d at 279, 253 N.E.2d at 461.) As defendant herein raised claims of constitutional magnitude in his petition for post-conviction relief, these claims are properly before us.

Defendant first alleges the trial court erred in denying his post-conviction petition because the record clearly demonstrates that his due process rights were violated by the trial court’s failure to admonish him, prior to acceptance of his pleas, that the minimum sentence for the murder of more than one person was natural life imprisonment.

In Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709, the United States Supreme Court held that due process of law requires that the record in a criminal case affirmatively establish that the guilty plea was made knowingly and voluntarily and with a full understanding of its consequences. In Boykin, the record was silent as to what admonishments, if any, were given to defendant prior to acceptance of his guilty plea. In reversing the conviction, the Court stated as follows:

“It was error, plain on the face of the record, for the trial judge to accept the petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary. ***
* * *
What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.” (Boykin, 395 U.S. at 242-44, 23 L. Ed. 2d at 279-80, 89 S. Ct. at 1711-12.)

In discussing the impact of Boykin, our supreme court has noted:

“The constitutional requirement for a valid plea of guilty is that it be intelligent and voluntary, and as we said in People v. Reeves [(1971)], 50 Ill. 2d 28, 29[, 276 N.E.2d 318, 319], ‘Boykin adds the requirement that if the guilty plea is to withstand appellate or post-conviction review “the record must affirmatively disclose that the defendant who pleads guilty enters his plea understandingly and voluntarily.” (Brady v. United States [(1970)], 397 U.S. 742, 747 footnote (4), 25 L. Ed. 2d 747, 756, 90 S. Ct. 1463, 1468.)’ ” (Emphasis added.) People v. Wills (1975), 61 Ill. 2d 105, 110-11, 330 N.E.2d 505, 508.

Supreme Court Rule 402 was adopted to ensure compliance with the Boykin requirement that the record affirmatively disclose that the guilty plea was understandingly and voluntarily entered. [Wills, 61 Ill. 2d at 111, 330 N.E.2d at 508.) Rule 402 governs the procedures on guilty pleas. The rule provides in pertinent part:

“The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
***
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences. (134 Ill. 2d R. 402(a)(2).)

Subparagraph (a)(2) of the rule specifically provides that a guilty plea shall not be accepted unless the defendant is personally admonished in open court of the minimum and maximum penalties which can be imposed. At the time of the plea hearing, the court advised defendant that the minimum term which could be imposed was 20 rears’ imprisonment and the maximum term was life behind bars. Such admonishment was clearly erroneous as section 5 — 8—1 of the Unified Code of Corrections provides for a mandatory minimum term of life imprisonment upon convictions for multiple murders. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(1)(c).) Defendant asserts that the court’s failure to advise him on the minimum sentence prescribed by law renders his plea involuntary and merits va:atur of his convictions for double murder. Defendant contends the court’s failure to advise him of the minimum term severely prejudiced him because he would never have pleaded guilty to the double murder had he known he would spend the rest of his life in the penitentiary.

The State counters that not every violation of Rule 402 amounts o a constitutional deprivation because a plea of guilty is valid if here is “substantial compliance” with the rule. The State argues hat, notwithstanding the erroneous admonishment regarding the possible penalties, the trial court substantially complied with the rule because defendant received the benefit of the plea bargain made with the State. That is, the State contends that as defendant entered “open” pleas to the double murder in exchange for the State’s waiver of the death penalty, then the imposition of any sentence (other than death) would have been permissible. As defendant was admonished that natural life imprisonment was the maximum possible sentence, then defendant cannot now claim unfairness or surprise by the imposition of that sentence. Alternatively, the State asserts that assuming arguendo the pleas were rendered invalid by the improper admonishment, this defect was nevertheless cured by the subsequent discussions which took place on the date of sentencing. As a final alternative, the State argues that even if the court’s admonishments were deficient, they were not so egregious so as to now entitle defendant to withdraw his pleas. The State reasons that if defendant were erroneously advised that he could receive a determinate prison term, this error merely created in defendant an expectation that he could present evidence which would mitigate his sentence from natural life to a term of years. At most, the error defeated defendant’s expectation of a full sentencing hearing wherein he could present mitigating evidence. The State argues that defendant’s remedy, if any, is a remand for a sentencing hearing at which the circuit court may consider a penalty range from 2( years’ to natural life imprisonment. We disagree.

We first note that this is not a “benefit of the bargain’ case in which the defendant points a finger at the prosecution and claims vacatur of his guilty plea is warranted because of the prose cution’s failure to live up to its part of the plea bargain. Instead this is an improper-admonishment case in which defendant alleges error on the part of the court and counsel for their failure to advise him of the minimum penalty which must be imposed when a defend ant pleads guilty to multiple murders. Defendant’s allegations clearly implicate Supreme Court Rule 402, which governs the acceptance of guilty pleas. The requirements of Rule 402 still must be satisfied irrespective of the nature of the bargain entered into fr the parties. As defendant is not seeking to enforce a plea agreement, we find untenable the State’s position that the only appropriate remedy is a remand for a new sentencing hearing where the full range of sentences originally suggested to defendant at the time of a plea hearing would be available to him. A remand with directions to the trial court to conduct such a hearing would be an exercise in futility; as the statute requires a minimum mandator term of natural life imprisonment, neither this court nor the circuit court would have the power to impose any sentence less than natural life imprisonment.

We next concede the State’s point that every deviation from the requirements of Supreme Court Rule 402 does not require reversal that the plea was intelligent and voluntary may be shown by “substantial” rather than literal compliance with the provisions of the rule. (People v. McCoy (1979), 74 Ill. 2d 398, 402, 385 N.E.2d 696, 698.) Noncompliance with the rule reaches constitutional dimension only if defendant can demonstrate that the noncompliance affected the intelligent and voluntary nature of his plea. See People v. White (1976), 39 Ill. App. 3d 770, 772, 350 N.E.2d 556, 558.

It has been stated that a guilty plea is rendered involuntary if the court fails to advise defendant of the possible minimum sentence or recites a possible minimum penalty lower than that authorized. (See People v. Price (1990), 196 Ill. App. 3d 321, 326, 553 N.E.2d 760, 763.) The purpose of the requirement to advise defendant of the maximum and minimum penalty which can be imposed is to ensure that defendant makes a voluntary and intelligent decision ay understanding all the possible consequences of his decision. Thus, when a defendant has been advised the minimum sentence is less than it actually is, he cannot be deemed to have made an inteligent decision because the range of possible penalties is greater than he believed. (Price, 196 Ill. App. 3d at 326, 553 N.E.2d at 763.) Moreover, our supreme court has specifically held that a plea 3f guilty to the murder of more than one person is involuntary if the trial court fails to inform defendant that the minimum penalty which can be imposed is mandatory life imprisonment. People v. Kidd (1989), 129 Ill. 2d 432, 446-47, 544 N.E.2d 704, 710.

In Kidd, defendant made open pleas of guilty to nine counts sf murder in exchange for the State’s promise to dismiss lesser iharges. Defendant knew the State was seeking the death penalty. Prior to accepting defendant’s pleas, the court admonished defendant: “[W]hether or not a life sentence, that is something that is controlled by the statute. I have no control over that.” (129 Ill. 2d at 440.) Defendant’s pleas were accepted and he was subsequently sentenced to death. He then filed a motion to withdraw his guilty 3leas, alleging he was never informed of nor did he understand the ninimum sentence which could be imposed. Defendant’s motion to vithdraw his pleas was denied. On appeal, the supreme court vacated the convictions and remanded with directions that defendant be allowed to plead anew, holding that the trial court’s reference to ‘a life sentence” “controlled by statute” did not adequately convey to defendant that the minimum sentence was mandatory life imprisonment. The improper admonishment rendered the pleas involuntary. Similar cases are in accord. (People v. Didley (1991), 213 Ill. App. 3d 910, 572 N.E.2d 423 (failure to admonish defendant of nandatory supervised release term rendered plea involuntary); People v. O’Toole (1988), 174 Ill. App. 3d 800, 529 N.E.2d 54 (post-condction relief granted where defendant not admonished that “flat” 10-year prison term carried additional two-year term of mandatory supervised release).) The State attempts to distinguish Kidd on the basis that defendant herein was advised at the plea hearing that a mandatory life term was at least a possibility. However, it cannot be seriously argued that the possibility of life imprisonment can be equated with a mandatory life term. We have previously rejected a similar argument, and we do so again. See People v. Brown (1991) 217 Ill. App. 3d 66, 576 N.E.2d 887.

We must now consider the primary issue in this case, that is whether the defect in the plea hearing was remedied by. subsequent events that took place on the date of sentencing. Specifically, we must decide the following question: if defendant’s pleas were rendered in voluntary by the trial court’s failure to admonish him of the mandatory life term, was this defect cured by an off-the-record discussion unaudited by the court, in which counsel advised defendant of the mandatory life term and defendant persisted in his pleas? The State contends that review of the entire record, including the post-conviction testimony, clearly indicates that defendant’s persistence in his pleas was voluntarily and intelligently made and, therefore, there is no reversible error. Defendant counters that if due process requires that the record affirmatively disclose that the guilty plea was voluntarily and intelligently made, then that constitutional requirement cannot be satisfied by an off-the-record discussion in which the cour took no part. We agree with defendant. We hold that, based on the facts of this case, the private discussion which took place between defendant and counsel cannot substitute for the type of proceeding contemplated, by Supreme Court Rule 402.

Entry of a valid guilty plea in compliance with Rule 402 requires that the trial judge determine that the plea is knowing and voluntary (People v. Huante (1991), 143 Ill. 2d 61, 70, 571 N.E.2d 736, 740.) To ensure that the defendant enters his guilty plea knowingly, the judge must advise the defendant of the nature of the charges and the minimum and maximum sentence as prescribed by law. (Huante, 143 Ill. 2d at 70, 571 N.E.2d at 741.) Furthermore,- the court shall not accep the plea without first addressing the defendant personally in open court. (134 Ill. 2d R. 402(a).) We find instructive subparagraph (d)(2 of the rule, which provides that if the court concurs or conditionally concurs in the plea agreement, such concurrence shall be stated fo: the record, but if the judge later determines before sentencing that : more severe disposition is called for, he must so advise the defendan and give him an opportunity to withdraw the plea. (134 Ill. 2d R 402(d)(2) & Committee Comments, at 341.) This subparagraph applie “in addition to the preceding paragraphs” (134 Ill. 2d R. 402(d)), thus incorporating by reference the requirement that defendant be admonished in open court.

Here, there is no indication in the sentencing transcript that defendant was personally advised in open court that the previous admonishment regarding the penalty range was erroneous and that he would have to accept the mandatory life term or withdraw his pleas. The State contends, however, that the post-conviction testimony clearly indicates that counsel advised defendant of the mandatory term and of his right to withdraw his pleas but, nevertheless, defendant persisted in pleading guilty. Therefore, reasons the State, because defendant was properly admonished by his attorney, this court should consider his pleas voluntarily and intelligently made. We decline to do so. In People v. Weakley (1970), 45 Ill. 2d 549, 259 N.E.2d 802, the supreme court reversed the trial court’s order denying post-conviction relief and remanded the cause where the record did not show that the trial court had personally advised the defendant of the maximum term prescribed by law even though defendant’s attorney had done so out of court. In that case, the trial judge did not participate in nor did he audit the out-of-court discussion but merely presumed that counsel’s admonishment as to the maximum term was accurate and adequate. The supreme court held that the trial court’s duty to personally address the defendant in open court cannot be delegated to counsel. The law is well settled that it is the responsibility of the court, and not counsel, to inform defendant of the minimum and maximum sentences prescribed by law for the offense to which he is pleading guilty. (People v. Packard (1991), 221 Ill. App. 3d 295, 581 N.E.2d 837; People v. Brown (1991), 217 Ill. App. 3d 66, 576 N.E.2d 887; People v. Jones 1985), 135 Ill. App. 3d 1023, 482 N.E.2d 1031.) Here, there was no iirect colloquy between the court and the defendant other than the court’s perfunctory question as to whether or not defendant understood his sentence. This perfunctory inquiry was insufficient to show ;hat defendant’s persistence in his pleas was knowingly and voluntarly made. We note that while defendant testified his attorney advised dm of the mandatory term, he also testified he did not understand he could withdraw his pleas that very day. The trial judge’s statement at ;he post-conviction hearing that he had so advised counsel such an op-ion would be granted does not amount to an affirmative showing of record that defendant was so advised. We cannot accept the State’s rosition that defendant’s persistence in his pleas was voluntary because he was admonished by his attorney in an off-the-record discusión in which the court did not participate. To so find would subvert he very purpose of the rule. Rule 402 has two objectives: (1) to insure compliance with Boykin’s “affirmative disclosure” requirement and (2) to give visibility to the plea agreement process and thus provide the reviewing court with a record containing an accurate and complete account of all relevant circumstances surrounding the guilty plea. (134 Ill. 2d R. 402, Committee Comments, at 340.) Here, the off-the-record discussion between counsel and defendant scarcely meets the affirmative disclosure requirement of Boykin, nor does it “give visibility” to the plea agreement process. Under Boykin, due process requires certain safeguards to be afforded to an accused who pleads guilty, including an on-the-record inquiry by the judge accepting the plea that it was knowingly and voluntarily entered. (People v. Boyt (1985), 109 Ill. 2d 403, 413, 488 N.E.2d 264, 269.) Furthermore, it is the defendant’s understanding of all possible consequences of his plea which the rule seeks to ensure. (See People v. Robinson (1976), 63 Ill. 2d 141, 145, 345 N.E.2d 465, 467.) Whether or not defendant fully understood the implications of his pleas must be demonstrated by an adequate record. The affirmative disclosure requirement of Boykin was designed to prevent the very thing which occurred here — an out-of-court admonishment which was neither conducted by the court nor reduced to a transcript. As Boykin warned:

“When the judge discharges that function [insures defendant has a full understanding of the implications of his plea], he leaves a record adequate for any review that may be later sought [citations], and forestalls the spin-off of collateral proceedings that seek to probe murky memories.” (Boykin, 395 U.S. at 244, 23 L. Ed. 2d at 280, 89 S. Ct. at 1712-13.)

We find manifestly erroneous the trial court’s order denying post-conviction relief as scrutiny of the entire record does not demonstrate that defendant fully understood the consequences of his pleas. Basing our holding on due process grounds, we need not address defendant’s claims of ineffective assistance of counsel. In light of the foregoing, defendant’s murder convictions cannot stand. We reverse the order of the circuit court of Franklin County denying post-conviction relief; we vacate defendant’s murder convictions and remand this cause to the circuit court with directions that defendant be allowed to plead anew.

Reversed; murder convictions vacated and cause remanded with directions.

GOLDENHERSH and LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MAAG

license: Public Domain

text:
    WABASH INDEPENDENT OIL COMPANY, Plaintiff-Appellee and Cross-Appellant, v. KING AND WILLS INSURANCE AGENCY et al., Defendants and Counterplaintiffs-Appellants and Cross-Appellees and Third-Party Plaintiffs (Jerry Hall, Defendant and Counterdefendant; First National Bank and Trust Company of Douglas County, Third-Party Defendant).
    Fifth District
    No. 5 — 92—0262
    Opinion filed August 4, 1993.

      Michael E. Raub, Heyl, Royster, Voelker & Allen, of Urbana, for appellants.
    LeFevre, Zeman, Oldfield & Schwarm Law Group, Ltd., of Vandalia (Larry L. LeFevre, of counsel), for appellee.
   JUSTICE MAAG

delivered the opinion of the court:

The plaintiff, Wabash Independent Oil Co., brought suit against defendants, King & Wills Insurance Agency, Phillip A. Wills and Phillip Joseph Wills, as partners doing business as King & Wills Insurance Agency, Phil A. Wills, an individual, and Phillip Joseph Wills, an individual (hereinafter collectively referred to as King & Wills), and Jerry R. Hall.

The facts of this case are not in serious dispute. On May 15, 1988, Jerry R. Hall signed a solicitor’s agreement with King & Wills Insurance Agency. Pursuant to the terms of the agreement, Hall was to work as an independent contractor for King & Wills by soliciting insurance business for King & Wills.

Hall continued to work under the parties’ agreement until on or about October 24, 1989. During this period that Hall worked under the solicitor’s agreement, he sold insurance policies for King & Wills which included auto, home, health, and commercial insurance policies. King & Wills provided Hall with office space in their office. They also provided Hall with business cards which name Jerry R. Hall as a sales representative of King & Wills. King & Wills obtained a life insurance policy on Hall’s life. Phillip A. Wills signed the life insurance application which lists King & Wills as Hall’s employer and beneficiary. In various advertisements, which included the yellow pages, a billboard, and a newspaper article published in June of 1988, King & Wills held Hall out as a member of their agency. Hall’s name also appeared on King & Wills’ outdoor office sign.

In approximately October of 1988, Hall met with the principals of Wabash and quoted an insurance premium price to Wabash for a full commercial insurance package. Ultimately, a worker’s compensation policy was placed for Wabash by Hall, and King & Wills sent premium notices to Wabash. King & Wills received a commission for the worker’s compensation policy Hall sold to Wabash.

In response to the commercial insurance package quotation, Hall received a down payment from Wabash. The down payment was tendered to Hall in the form of a Wabash check made payable to King & Wills. The full commercial insurance policy was to run from November 1, 1988, to November 1, 1989. Jerry Hall deposited the down payment check into a business account of his own. Hall never procured the insurance promised to Wabash. Hall created a fictitious policy for Wabash made of computer printouts and cover pages from a legitimate policy Hall had procured insuring Wabash. Hall admitted to creating the fictitious policy after business hours or on Saturdays when the King & Wills office was closed.

From time to time, Hall sent premium notices to Wabash for the fictitious commercial policy. Wabash sent checks to King & Wills payable to King & Wills in response to the premium notices. Hall intercepted these checks by removing the checks from King & Wills’ post office box. Ultimately, Hall received approximately $60,000 from Wabash and used it for his own benefit.

King & Wills never required Hall to provide an itinerary of the places he visited to solicit business, nor did they monitor his activities. King & Wills were not aware that Hall had been receiving and cashing the premium checks from Wabash. King & Wills never received any of the monies misappropriated by Hall. During the time Hall worked under the solicitor’s agreement, Darrel May, one of the principals of Wabash, received communications from King & Wills concerning a personal auto policy which he had obtained through Hall. Hall also entertained the Wabash principals at the Urbana Country Club by using Phillip Joseph Will’s membership with that institution.

The record indicates that because no policy was actually issued, there are $1,416.12 in unpaid claims. These claims would have been paid if a genuine policy had been procured.

On May 24, 1990, Wabash filed a complaint against King & Wills and Hall. Hall filed bankruptcy, which stayed the proceedings against him. Four counts of Wabash’s complaint are directed against King & Wills. Count III alleges misappropriation of funds, count IV alleges deceptive trade practices, count V alleges a failure to procure insurance, and count VI alleges errors and omissions. King & Wills and Wabash both filed motions for summary judgment. The trial court granted King & Wills’ motion for summary judgment on count IV (deceptive trade practices) and denied both parties’ motions with respect to count VI (errors and omissions). The trial court granted Wabash’s motion for summary judgment on the issue of liability on count III (misappropriation of funds) and count V (failure to procure insurance).

On January 24, 1992, the trial court entered judgment in favor of Wabash and against King & Wills in the amount of $60,137.32 plus prejudgment interest on count III and in the sum of $60,137.32 under count V. The trial court refused to award Wabash attorney fees under count V.

On appeal, King & Wills raise the following issues:

1. Did the trial court err in entering summary judgment on a finding that Hall was an agent or employee of King & Wills?

2. Even if Hall was properly found to be an agent or employee of King & Wills, did the trial court err in holding King & Wills liable for Hall’s misappropriation under the facts presented?

3. Was the correct measure of damages applied with respect to the count alleging misappropriation of funds?

Although summary judgment is a drastic remedy which should only be employed if the right of the movant is free from doubt (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871), it is appropriate when the parties agree on the material facts and the only dispute concerns the legal effect of those facts. (Hagy v. McHenry County Conservation District (1989), 190 Ill. App. 3d 833, 842, 546 N.E.2d 77, 84-85.) In the present case, the parties do not dispute the relevant facts; they only disagree under the facts of this case whether Hall was an agent of King & Wills. On appeal from the grant of a motion for summary judgment, a reviewing court must determine whether the trial court properly ruled that no genuine issue of material fact was raised and, if none was raised, whether summary judgment was properly entered as a matter of law. (Dockery v. Ortiz (1989), 185 Ill. App. 3d 296, 305, 541 N.E.2d 226, 231.) In the case before us, we find that no genuine issue of material fact was raised and summary judgment was properly entered as a matter of law.

The general rule is that a party injured by the negligence of another must seek his remedy against the person who caused the injury. An exception is the doctrine of respondeat superior. (Metzler v. Layton (1939), 373 Ill. 88, 91, 25 N.E.2d 60, 61.) Whether the relationship of principal and agent, or owner and independent contractor, exists is a question of fact, unless the relationship is so clear as to be indisputable. Yuhas v. Allis-Chalmers Distribution Service Corp. (1973), 12 Ill. App. 3d 814, 821, 299 N.E.2d 166, 170.

King & Wills allege that the trial court erred in finding Hall to be an agent or employee of King & Wills. The basis of their argument is that Hall was an independent contractor. They rely upon the solicitor’s agreement which specifically labels Hall an independent contractor, and they also rely on the fact that they did not monitor Hall and exercised little control over how Hall performed his duties. King & Wills correctly state that the test to determine whether one person is an agent of another centers on the principal’s right to control the actions of the agent. (Wargel v. First National Bank (1984), 121 Ill. App. 3d 730, 460 N.E.2d 331.)

“The right to control the manner of doing the work is an important if not the principle consideration that determines whether the worker is an employee or an independent contractor.” Perkinson v. Manion (1987), 163 Ill. App. 3d 262, 266, 516 N.E.2d 977, 980.

At no time have King & Wills argued that they could not monitor or direct Hall’s duties and activities; they simply state that they did not monitor, direct, or control Hall’s activities.

We believe that the case before us is one of apparent agency. Generally, one who holds out another as his agent to act in a given capacity and by habits and course of dealings justifies the inference that such person is authorized to act as an agent, whether it be a single transaction or in a series of transactions, will not be heard to deny the agency to the prejudice of an innocent person who has been led to rely on the appearance of authority in the agent. Morse v. Illinois Power & Light Corp. (1938), 294 Ill. App. 498, 503-04, 14 N.E.2d 259, 251.

The doctrine of apparent agency is based upon the doctrine of equitable estoppel (Crittendon v. State Oil Co. (1966), 78 Ill. App. 2d 112, 115, 222 N.E.2d 561, 563-64, quoting Morse v. Illinois Power & Light Corp., 294 Ill. App. at 503-04), and it is only conduct or representations of the alleged principal that can be set up as a basis for estoppel. (Crittendon v. State Oil Co., 78 Ill. App. 2d at 116, 222 N.E.2d at 564.) Both doctrines, when used to bind a principal to the acts of an agent as against a third person, are based upon the same elements.

To prove apparent agency, one must establish:

“(1) the principal’s consent to or knowing acquiescence in the agent’s exercise of authority, (2) the third person’s knowledge of the facts and good-faith belief that the agent possessed such authority, and (3) the third person’s reliance on the agent’s apparent authority to his or her detriment.” Northern Trust Co. v. St. Francis Hospital (1988), 168 Ill. App. 3d 270, 278, 522 N.E.2d 699, 704, citing 3 Am. Jur. 2d Agency §80 (1986).

In the case before us, there is no doubt that King & Wills consented to Hall soliciting insurance business on their behalf. King & Wills held Hall out to the public as their employee or agent by their advertisements, business cards, business sign, and acts. Based upon the public representations made by King & Wills, as well as the prior legitimate insurance dealings, including Wabash’s worker’s compensation policy and the personal auto insurance, it would not be unreasonable for Wabash to possess a good-faith belief that Hall was the agent of King & Wills. It is equally apparent that Wabash relied upon Hall’s apparent authority to its detriment.

A principal who has placed an agent in a situation where he may be presumed to have authority to act is estopped as against third persons from denying the agent’s apparent authority. (Crawford Savings & Loan Association v. Dvorak (1976), 40 Ill. App. 3d 288, 292-93, 352 N.E.2d 261, 264.) We believe that the trial court properly found Hall to be an agent of King & Wills. They placed Hall in a position equivalent to the agent in a principal-agent relationship, and King & Wills are estopped from denying that Hall was acting as their agent.

The second contention of error raised by King & Wills is that the trial court erred in holding King & Wills liable for Hall’s misappropriation. King & Wills argue that Hall’s apparent agency does not answer the pivotal question of whether the apparent agency encompasses Hall’s theft of the checks. It is their contention that they are not liable for Hall’s wrongful acts since Hall left the scope of any agency he enjoyed with King & Wills the first time he received a check from Wabash and converted it to his own use. We answer the pivotal question in the affirmative: the theory of apparent agency does encompass Hall’s theft.

The doctrine of estoppel developed to prevent injustice or fraud (Northern Trust Co. v. St. Francis Hospital, 168 Ill. App. 3d at 279, 522 N.E.2d at 705), and where injury has resulted from the wrongful act of a third person, the damages flowing from the wrongful act must be borne by the party whose conduct made possible the wrongdoer’s act, breach of trust, fraud, or negligence. When one of two innocent persons must suffer by the act of a third, he who by his conduct, act, or omission enabled the third person to occasion the loss must sustain the loss. (First National Bank v. Paris (1934), 358 Ill. 378, 193 N.E. 207; 18 Ill. L. & Prac. Estoppel §27 (1956).) And when one of two innocent persons, i.e., persons each guiltless of an intentional moral wrong, must suffer a loss, it must be borne by that one of them who by his conduct has rendered the injury possible or who could have prevented it. National Premium Budget Plan Corp. v. LaSalle Casualty Co. (1967), 81 Ill. App. 2d 466, 471, 225 N.E .2d 400, 403, citing 28 Am. Jur. 2d Estoppel & Waiver §62 (1966).

Clearly, Wabash and King & Wills were innocent of any intentional wrongful act, but it is also patently clear that King & Wills did little to monitor Hall or his activities. In their brief, King & Wills correctly state that the mere fact that Hall was able to accomplish the fraud indicates that King & Wills did not constantly monitor or direct Hall’s activities. Certainly, King & Wills, by their conduct, rendered the injury possible, and of the two parties, they were in the superior position to prevent the loss. Accordingly, the loss must be borne by King & Wills.

The last issue raised by King & Wills is that the trial court employed an improper measure of damage. With respect to count III (misappropriation), King & Wills correctly point out that the proper legal name that should attach to count III is that of conversion. It is their position that Wabash did not establish the facts necessary to recover under the tort of conversion and Wabash is not entitled, therefore, to recover damages under this theory.

King & Wills rely upon the case of General Motors Corp. v. Douglass (1990), 206 Ill. App. 3d 881, 565 N.E.2d 93, to advance their argument that Wabash did not establish the facts necessary to recover under a theory of conversion. The General Motors case involved the issue of whether a defendant can convert a check made payable to the defendant. General Motors sued one of its dealers claiming that it had mistakenly paid the dealer. The dealer cashed the check although General Motors had demonstrated its entitlement to the money and had demanded the return of the check. The trial court entered summary judgment in General Motors’ favor, but the appellate court reversed.

The appellate court held: “a proper complaint for conversion must allege: (1) an unauthorized and wrongful assumption of control, dominion, or ownership by defendant over plaintiff’s personality; (2) plaintiff’s right in the property; (3) plaintiff’s right to the immediate possession of the property, absolutely and unconditionally; and (4) a demand for possession of the property [citation]. The essence of conversion is the wrongful deprivation of one who has a right to the immediate possession of the object unlawfully held.” General Motors, 206 Ill. App. 3d at 886, 565 N.E.2d at 96-97.

The appellate court found that one of the essential elements of conversion, that being General Motors’ right to immediate possession as against the defendant, was lacking. General Motors failed to establish that the money, at all times, belonged to it and that the defendant had converted it to his own use. General Motors, 206 Ill. App. 3d at 892, 565 N.E.2d 100.

The case before us is clearly distinguishable from the General Motors case. It is true that the checks that Wabash wrote were made payable to King & Wills, but there is no question that the money at all times belonged to Wabash. Wabash had the absolute and unconditional right to possession of the money based upon the fiduciary relationship imposed by the Illinois Insurance Code. Ill. Rev. Stat. 1987, ch. 73, par. 613 et seq.

Section 508.1 of the Insurance Code provides:

“Any money which an insurance producer *** receives for soliciting, negotiating, effecting, procuring, renewing, continuing or binding policies of insurance shall be held in a fiduciary capacity, and shall not be misappropriated, converted or improperly withheld.” Ill. Rev. Stat. 1987, ch. 73, par. 1065.55 — 1.

Under Illinois law the measure of damages is prima facie the amount of the face value of the notes and bills in question (Bentley, Murray & Co. v. La Salle Street Trust & Savings Bank (1916), 197 Ill. App. 322), and the value of property in an action for conversion is fixed as of the date of the conversion. On that date, the amount of the check is prima facie evidence of its value. (Gustin Bacon Manufacturing Co. v. First National Bank (1922), 224 Ill. App. 457, 466, aff’d (1922), 306 Ill. 179, 137 N.E. 793; see Smith v. General Casualty Co. (1979), 75 Ill. App. 3d 971, 394 N.E.2d 804.) We find no error in the trial court’s award of the face amount of the checks as damages under count III.

We turn now to the damages awarded under count V (failure to procure insurance). Our supreme court ruled in Cottingham v. National Mutual Church Insurance Co. (1919), 290 Ill. 26, 32, 124 N.E. 822, that to prove a contract to procure insurance has been entered into, “[i]t is sufficient if one of the parties to such a contract proposed to be insured and the other party agrees to insure, and the subject, the period, the amount and the rate of insurance are ascertained or understood and the premium paid if demanded.”

It is King & Wills’ contention that the only damages that Wabash is entitled to is the $1,416.12 in unpaid claims. These unpaid claims are the only damages Wabash has substantiated. Wabash argues in response that it sought a full commercial policy which included products liability coverage. This would result in coverage for claims for many years, since an occurrence rather than a claims-made policy was requested.

We find King & Wills’ argument in this regard to be without merit. Basic contract law provides that the measure of damages for the breach of a contract is the amount necessary to compensate the injured person for the loss which a fulfillment of the contract would have prevented. Hirsch v. Bollmeier (1962), 34 Ill. App. 2d 203, 180 N.E.2d 521.

In cases involving a wrongful failure to procure insurance, the law will impose the terms of the contract that would have been issued if there had been compliance with the agreement to procure. See Wheaton National Bank v. Dudek (1978), 59 Ill. App. 3d 970, 973, 376 N.E.2d 633; Scarsdale Villas Associates, Ltd. v. Korman Associates Insurance Agency, Inc. (1988), 178 Ill. App. 3d 261, 533 N.E.2d 81.

The plaintiff in the Wheaton case sued its insurance agent, claiming that the agent had failed to properly insure several snowmobiles that the plaintiff owned. The appellate court affirmed the jury verdict in favor of the plaintiff and found that, since no contract of insurance was ever produced, it was impossible to determine the measure of damages agreed upon apart from the $50 deductible on each snowmobile. The court ruled that the proper measure of damages was the fair market value of the items immediately prior to the loss. (Wheaton, 59 Ill. App. 3d at 973, 376 N.E.2d at 636.) The Wheaton court essentially placed the insurance agent in the position of an insurer, requiring him to make good on the losses which would have been covered had proper insurance been obtained.

Generally, the value of the item sought to be insured and the damages awarded in cases involving a wrongful failure to procure insurance greatly exceed the premiums that would be due on the policy. In the case before us, we have a situation where a large premium was paid, and the window of opportunity for substantial losses extends for a long period of time. Wabash simply sought the amount of the premium paid although it may have been entitled to have King & Wills placed in the position of the insurer for claims arising under the nonexistent full commercial insurance policy. We find no error in the trial court’s award of damages consistent with Wabash’s prayer that it merely receive as damages the amount of the premiums paid.

Lastly, we address the issue of Wabash’s attorney fees. It is a well-established principle of Illinois law that, absent a statutory or contractual basis, each party to litigation must bear its own attorney fees. (Ritter v. Ritter (1943), 381 Ill. 549, 46 N.E.2d 41.) Wabash relies, on National Boulevard Bank v. Brokerage Resources, Inc. (1978), 62 Ill. App. 3d 159, 378 N.E.2d 1217, to support its argument that it is entitled to attorney fees under count V (failure to procure insurance) as damages. The court, in National Boulevard Bank, did grant the plaintiff’s attorney fees, but the fees awarded as damages were not incurred by the plaintiff in prosecuting its claim against its insurance agent for failure to properly obtain insurance. Rather, the fees awarded were premised on fees incurred in litigation with a third party. In the instant case, Wabash was merely prosecuting its claims against King & Wills. The fees incurred were merely a normal incident of any breach of contract action. Wabash must bear its own attorney fees.

Conclusion

Accordingly, the summary judgment entered by the circuit court against King & Wills in favor of Wabash on counts III (misappropriation of funds) and V (failure to procure insurance) of Wabash’s complaint as amended is affirmed. The summary judgment entered by the circuit court against Wabash and in favor of King & Wills on count IV (deceptive trade practices) on Wabash’s complaint as amended is affirmed. The circuit court’s denial of Wabash’s attorney fees is affirmed.

Affirmed.

GOLDENHERSH and WELCH, JJ., concur.


author: JUSTICE MAAG JUSTICE RARICK,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK J. SMITH, Defendant-Appellant.
    Fifth District
    No. 5-91-0187
    Opinion filed August 9, 1993.
    RARICK, J., dissenting.
    Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Gerry Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE MAAG

delivered the opinion of the court:

The defendant, Frank J. Smith, pleaded guilty to burglary in two separate cases and to felony theft in a third case.

On appeal, he only contends that he must be allowed to file a new motion, pursuant to Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)), to withdraw his guilty pleas, because defense counsel did not comply with the spirit and purpose of Rule 604(d) and because defendant was not furnished with a copy of the guilty plea transcript in accordance with Rule 604(d).

In St. Clair County No. 89 — CF—890, defendant was charged with burglary. On December 14, 1989, he pleaded guilty to burglary, and on February 8, 1990, he was sentenced to two years’ probation.

On August 24, 1990, defendant was charged with burglary in St. Clair County No. 90 — CF—793.

On December 31, 1990, defendant was charged with burglary in St. Clair County No. 90 — CF—1377. On January 7, 1991, in No. 89— CF — 890, the State filed a petition to revoke probation which alleged that defendant had committed burglary.

On February 7, 1991, the State amended the charge in No. 90— CF — 793 to felony theft and agreed to recommend concurrent three-year sentences in No. 89 — CF—890 and 90 — CF—1377 and to recommend a consecutive sentence of 30 months’ imprisonment in No. 90 — CF—793. Defendant agreed to plead guilty to burglary in No. 90 — CF—1377 and to felony theft in No. 90 — CF—793. He further agreed to admit the violation of probation in No. 89 — CF—890. The court accepted the guilty pleas and the admission to violating probation and sentenced defendant in accordance with the guilty plea agreement.

On February 8, 1991, defendant wrote a letter to the court in which he alleged that he had not been properly represented by the assistant public defender, Brian Trentman. The court appointed another attorney, Lloyd Cueto, to represent defendant.

On February 19, 1991, appointed counsel filed a motion to withdraw the guilty pleas or, in the alternative, to modify the sentences. The motion alleges that defendant did not fully comprehend or understand the admonishments of the court prior to pleading guilty and that the sentences are excessive. Stapled to the motion is a “certificate of counsel pursuant to Illinois Supreme Court Rule 604(d)” which states “[that counsel Cueto has] consulted with the defendant to ascertain his contentions of error in this cause; and that he has examined the trial court file and report of proceedings of the plea of guilty; and that defendant offers no amendments to the motion to withdraw guilty plea.” The certificate was signed by counsel.

On February 21, 1991, a hearing was held on defendant’s motion. Counsel stated that he had reviewed the court file and had several discussions with defendant, which are the bases for filing the Rule 604(d) motion; however, counsel had not been able to review the transcript of the February 7 hearing. The court stated that neither the Rule 604(d) motion nor defendant’s letter of February 8 appeared to raise any substantial issues concerning the court’s Supreme Court Rule 402 (134 Ill. 2d R. 402) admonishments. The court ruled that it would hear defendant’s testimony and, if necessary, ask the court reporter to transcribe the February 7 hearing.

Defendant testified that while confined in the county jail, he had been “jumped on a couple of times.” Mr. Grear, the superintendent of the jail, asked him if he did not want to plead guilty, make a deal, and get out of the jail. Defendant responded that he would like to do the foregoing. That evening at approximately 6 p.m., Brian Trentman, defendant’s trial counsel, came to the jail and talked to him for 5 or 10 minutes, during which he was informed of the plea agreement. The next day he was called to go to court, although prior to that time he did not know that he was going to court. Trentman told him to either accept the plea agreement now or receive more prison time later. At that time, defendant was “scared,” “had problems,” and had “a nervous condition.” He did not know “what happened.” Although Trent-man had represented him for two or three months on various cases, defendant only talked with him for a total of 15 minutes. He admitted that he was out on bond on the first burglary offense and in “treatment” when he was charged with the second burglary offense.

During the cross-examination of the defendant by the assistant State’s Attorney, the court informed defense counsel that the transcript of the February 7 hearing had been prepared.

The cross-examination continued, and the defendant further testified that he did not understand what was occurring at the plea proceedings, as “everything moved too fast.” Defendant acknowledged that on February 7 he told the court that he understood the admonishments; however, the decision to plead guilty was forced on him by Trentman and by Grear. Although defendant admitted that he had been charged with approximately 30 traffic or misdemeanor offenses since 1980, he stated he had no general knowledge of his rights or of the court system. Defendant maintained that in spite of the trial court’s lengthy admonishments on February 7, he did not understand his rights prior to pleading guilty.

After the completion of the cross-examination of defendant, the court stated that during the testimony of defendant it had the clerk contact the court reporter for the February 7 hearing. The court was in possession of the transcript, which lacked a cover and certification. Defense counsel had an opportunity to read through the transcript during defendant’s testimony. The court asked defense counsel if he needed more time to review the transcript, and defense counsel stated, “No, your Honor, I’ve had ample opportunity.” The court then asked defense counsel if his view of the transcript suggested any further questions of defendant, and defense counsel replied, “No.”

The court then questioned defendant as to whether he remembered telling the court on February 7 that he understood the proceedings. Defendant replied that his mind was in a “flew state,” and that Trentman had told him what to say prior to coming to court. When the court specifically asked defendant what he did not understand on February 7, defendant replied: “I don’t know”; “I don’t understand”; and “I just did what I was told to do. That’s all I could say. I just— everything was just — like just running through.”

Brian Trentman, a part-time assistant public defender in St. Clair County, testified that he initially represented defendant after the petition to revoke probation in No. 89 — CF—890 was filed. Trentman filed motions for bond in Nos. 89 — CF—890 and 90 — CF—793 which were granted. He asked Cheryl Probst to make a psychological evaluation of defendant, which Trentman reviewed. A tentative plea agreement was worked out with the State in which the State would ask for three years’ imprisonment and the defendant could ask for probation coupled with drug or alcohol treatment; however, before the offer could be conveyed to defendant, he was arrested in No. 90 — CF—1377. Trent-man then related the State’s offer of 5½ years’ imprisonment. Trent-man explained the agreement, the efforts to have him serve his sentences in a prison other than Menard, where defendant had been a guard, the strength of the State’s cases, and good-conduct credit.

On February 7, defendant told Trentman that he did not want to plead guilty because he hoped the State would offer three year’s imprisonment. Trentman explained that the State had put a deadline on the offer, that the offer would not get better, and that he would be sentenced to substantially more time if he went to trial. Defendant accepted the plea agreement and pleaded guilty. Trentman then filed a motion to dismiss numerous traffic cases pending against the defendant. Trentman talked with defendant at least five times during the period he represented him.

Trentman denied anyone from the jail contacted him concerning defendant and denied he told defendant how to answer the court’s questions.

After hearing argument of counsel, the court stated it had read the February 7 transcript and had observed defense counsel read the transcript. A review of that transcript indicated that defendant was not confused, coerced, or under any mental infirmity. The court remembered that defendant appeared unhappy but did not appear confused. The court denied the motion to withdraw the pleas.

On appeal, defendant only contends that he should be allowed to file a new motion to withdraw his pleas, because the spirit and purpose of Rule 604(d) were not complied with where defense counsel was not furnished with a transcript of the guilty plea hearing until during defendant’s testimony at the hearing on the motion to withdraw the pleas of guilty.

On February 21, 1991, at the time of the hearing on defendant’s Rule 604(d) motion, Rule 604(d) provided:

“Appeal by Defendant From a Judgment Entered Upon a Plea of Guilty. No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment. The motion shall be in writing and shall state the grounds therefor. When the motion is based on facts that do not appear of record it shall be supported by affidavit. The motion shall be presented promptly to the trial judge by whom the defendant was sentenced, and if that judge is then not sitting in the court in which the judgment was entered, then to the chief judge of the circuit, or to such other judge as the chief judge shall designate. The trial court shall then determine whether the defendant is represented by counsel, and if the defendant is indigent and desires counsel, the trial court shall appoint counsel. If the defendant is indigent, the trial court shall order a copy of the transcript as provided in Rule 402(e) be furnished the defendant without cost. The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.” (134 Ill. 2d R. 604(d).)

Rule 604(d) must be strictly followed. (People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221; People v. Hayes (1990), 195 Ill. App. 3d 957, 961, 553 N.E.2d 30, 33; People v. Mabry (1991), 209 Ill. App. 3d 976, 977, 568 N.E.2d 473, 474.) The better procedure is for defense counsel to be provided with the transcript of the plea proceedings and of sentencing prior to the Rule 604(d) hearing in order that counsel have sufficient time to prepare a Rule 604(d) motion and for the hearing. However, Rule 604(d) does not require that the transcript be provided in advance of the hearing. On the facts of this case, we cannot find that Rule 604(d) was violated. During the hearing, counsel was supplied with a copy of the transcript of the February 7, 1991, negotiated plea proceedings. In response to the trial court questions, defense counsel stated that he had sufficient time to review the transcript and that an examination of the transcript did not suggest other questions to be asked defendant. Nothing in the record suggests, as defendant contends, that attorney “Cueto ignored the cross-examination of defendant by the State” while reading the transcript. Further, defendant on appeal does not suggest what other questions the transcript might have suggested. This court holds that there was compliance with Rule 604(d).

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

Affirmed.

CHAPMAN, P.J., concurs.

JUSTICE RARICK,

dissenting:

While the majority correctly notes that Rule 604(d) does not specifically require the transcript of the guilty plea proceedings be provided to defendant and his counsel in advance of the hearing on a motion to withdraw a guilty plea, I do not believe the procedure followed here complies with the spirit and purpose of Rule 604(d) as set out in People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, and People v. Hayes (1990), 195 Ill. App. 3d 957, 553 N.E.2d 30. Therefore, I write this dissent. Transcribing and reading the report of proceedings during the hearing on the motion to withdraw a guilty plea does not permit either defendant or his counsel the opportunity to fully review the proceedings without distraction, prevents defense counsel from paying complete attention to the hearing at hand, and denies defendant and counsel the use of the report of such proceedings in formulating the motion to withdraw defendant’s plea. Clearly this is not strict compliance with Rule 604(d). Defendant’s interests certainly were not protected by the cavalier manner in which his hearing was conducted. I therefore believe defendant should be given the opportunity to file a new motion to withdraw his plea as well as the opportunity to be heard on that motion.


text:
    KATHY BETTS, Plaintiff-Appellant, v. RAY CRAWSHAW, Defendant-Appellee.
    Fifth District
    No. 5-91-0670
    Opinion filed August 10, 1993.
    John D. Alleman, of R. Courtney Hughes & Associates, of Carbondale, for appellant.
    Charles E. Schmidt and Stephen W. Stone, both of Brandon, Schmidt & Palmer, of Carbondale, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Kathy Betts, brought an action in the circuit court of Jackson County against the defendant, Ray Crawshaw, for injuries sustained when a clothesline pole fell and struck her. Betts and her family leased a house from the defendant, Ray Crawshaw, pursuant to a verbal month-to-month lease. Two “T” shaped steel clothesline poles were located on the property. Both were rusted and unstable. On or about August 23, 1989, a horizontal crossbar on one of the poles fell and struck plaintiff as she, was mowing her lawn. Betts suffered head and neck injuries.

Plaintiff filed a one-count complaint, and defendant moved for summary judgment. The motion was denied, and plaintiff subsequently added a second count sounding in res ipsa loquitur. Defendant filed motions to dismiss both counts. The trial court granted the motions to dismiss, finding that neither count stated a cause of action. Specifically, the trial court found that “[t]he amended complaint [did] not show that the defendant had knowledge of the defect with regard to the clothesline pole at the time the premises was rented to the plaintiff,” nor any other time, and plaintiff failed to allege that inspection of the pole would have disclosed the dangerous condition. The trial court also stated that “summary judgment should be entered based on the fact that no party having contact with the clothesline pole had knowledge of any defect,” but the parties disagree as to whether summary judgment was actually entered in favor of defendant.

On appeal, plaintiff argues that she adequately stated a cause of action under both count I and count II of her amended complaint.

Count I alleges in pertinent part:

“4. Immediately prior to the premises being rented to the Plaintiff by the Defendant, and at all times referred to herein, at the position where the poles intersected between the vertical pole and the horizontal pole, the weld which was performed to hold said poles together had sustained severe erosion and rusting which had caused the weld and the poles to deteriorate and become loose, unsecure and unstable.
5. That at all times referred to herein the Defendant reserved unto himself the sole right and responsibility for all maintenance, alteration, modification, repair and/or removal of said clothesline pole on the rental premises.
6. That the Defendant rented the premises to the Plaintiff when the subject clothesline pole closest to the home was in a dangerous condition due to the erosion and rusting around the weld of the two metal bars aforementioned making said bars loose, unsecure and unstable.
* * *
8. Then and there the Defendant breached his duty as a landlord to the Plaintiff as follows:
A. The defendant failed to perform an adequate inspection of the subject premises, and particularly of the clothesline pole at issue, prior to renting same to the Plaintiff when a careful and prudent inspection of said pole would have revealed it to be in a dangerous condition likely to lead to the 40 pound crossbar falling down and hitting and injuring an individual.
R The Defendant failed to repair the subject clothesline pole when a careful inspection of same would have revealed it to be in the dangerous condition aforementioned.
C. The Defendant failed to warn the Plaintiff of the aforementioned dangerous condition when a careful inspection of same would have revealed the weld to have eroded and rusted such that the intersection of the two bars or poles had deteriorated and become loose and unsecure and unstable over time.”

Count II alleges in pertinent part:

“7. The injuries sustained by the Plaintiff as hereinafter alleged were received from said horizontal cross-bar which was under the management of the Defendant-Landlord as alleged supra.
8. The injuries sustained by the Plaintiff as hereinafter alleged would not have occurred within the normal course of events if the Defendant-Landlord had exercised reasonable care in inspecting and maintaining said horizontal pole aforementioned.”

On appeal, Betts argues that the trial court erred in dismissing tier complaint for failing to state a cause of action. To sufficiently state a cause of action, a complaint must set forth a legally recognized claim and plead facts which bring the claim within the cause of iction alleged. (Lester v. Chicago Park District (1987), 159 Ill. App. 3d 1054, 513 N.E.2d 72.) In determining whether a cause of action should be dismissed for failure to state a cause of action, all wellileaded factual allegations must be taken as true and all reasonable inferences must be construed in plaintiff’s favor. (Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213, 217, 517 N.E.2d 656, 659; Long v. City of New Boston (1981), 95 Ill. App. 3d 430, 420 N.E.2d 282.) A complaint should not be dismissed unless it clearly appears ;hat no set of facts can be proved which will entitle plaintiff to recover. Anderson v. Marquette National Bank (1987), 164 Ill. App. 3d 626, 627-28, 518 N.E.2d 196, 203.

In the present case, count I of plaintiff’s complaint alleges a cause of action for negligence. To state a cause of action for negligence, a plaintiff must plead facts demonstrating that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that plaintiff was damaged as a proximate result of such breach. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.) Count I of plaintiff’s complaint alleges that defendant had a duty to plaintiff by virtue of the fact that he reserved unto himself the sole right and responsibility for all maintenance, alteration, modification, repair, and/or removal of the clothesline pole, and that defendant breached this duty by one or more of the following: (1) failing to inspect the clothesline pole prior to tenancy; (2) failing to repair the clothesline pole during tenancy when adequate inspection would have revealed a dangerous condition; and (3) failing to warn plaintiff of the dangerous condition.

Generally, landlords are not liable for injuries occurring on premises leased to a tenant and under the tenant’s control. (Dapkunas v. Cagle (1976), 42 Ill. App. 3d 644, 356 N.E.2d 575.) There are four exceptions to this rule:

“ ‘(1) where a latent defect exists at the time of the leasing, which defect is known or should have been known to the landlord in the exercise of reasonable care and which could not have been discovered upon a reasonable examination of the premises by the tenant; (2) where the landlord fraudulently conceals from the tenant a known, dangerous condition; (3) where the defect causing the harm, in the law, amounts to a nuisance; and (4) where the landlord promises the tenant to repair the premises at the time of the leasing.’ ” Dapkunas, 42 Ill. App. 3d at 647, 356 N.E.2d at 577, quoting Thorson v. Aronson (1970), 122 Ill. App. 2d 156, 160, 258 N.E.2d 33, 34-35.

It is not sufficient for a complaint to merely allege that a duty exists; a plaintiff must allege facts from which the law will raise a duty. (Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 523 N.E.2d 594.) Defendant maintains that plaintiff merely alleged duties to inspect and repair without alleging any facts establishing such duties.

With respect to the duty to repair, section 357 of the Restatement (Second) of Torts was adopted in Looger v. Reynolds (1975), 25 Ill. App. 3d 1042, 324 N.E.2d 238. Section 357 provides:

“A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if
(a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and
(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented, and
(c) the lessor fails to exercise reasonable care to perform his contract.” Restatement (Second) of Torts §357 (1965).

Plaintiff’s complaint alleges in paragraph 5 of count I that defendant “reserved unto himself the sole right and responsibility for all maintenance, alteration, repair and/or removal of said clothesline pole.” (Emphasis added.) Such language clearly supports a reasonable inference that defendant contracted, either as a provision of the lease or otherwise, to keep the clothesline pole in good repair. Such language also necessarily implies an agreement to inspect. We conclude that count I of plaintiff’s complaint adequately states a cause of action for negligence.

Count II sets forth a cause of action for negligence based upon the doctrine of res ipsa loquitur. To state a cause of action for negligence based upon res ipsa loquitur, a plaintiff must allege facts showing: (1) plaintiff was injured in an occurrence which would not ordinarily occur absent some negligence; (2) by an instrumentality or agency under the management or control of the defendants; and (3) under circumstances indicating that the injury was not the result of any act or omission on the part of the plaintiff. Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 592, 491 N.E.2d 803, 809, citing Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 443 N.E.2d 569.

In the present case, count II alleges that the clothesline pole had sustained severe erosion and rusting which caused it to become unstable; that the pole fell on plaintiff, injuring her; and that such injuries would not have occurred within the normal course of events had defendant exercised reasonable care in inspecting and maintaining said pole. Together, these allegations clearly satisfy the first and third elements. The issue we must address is whether count II adequately alleges that the clothesline pole was under the management or control if the defendant.

Plaintiff argues that paragraph 5 of count II, which alleges “[t]hat it all times referred to herein the Defendant reserved unto himself the sole right and responsibility for all maintenance, alteration, modification, repair and/or removal of said clothesline pole,” is sufficient to allege that defendant retained control over the instrument which caused plaintiff’s injury. We agree.

Illinois has adopted a flexible standard of control. (Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 443 N.E.2d 569.) The control that must be established, or in this case alleged, is that necessary to support an inference that the defendant was negligent. (Lynch, 93 Ill. 2d at 274, 443 N.E.2d at 573.) As commentary to section 328D of the Restatement (Second) of Torts explains, the key question is whether the probable cause of the accident is one which the defendant was under a duty to anticipate or guard against. (Restatement (Second) of Torts §328D, Comment g, at 161 (1965).) Similarly, Prosser and Keeton provide: “ ‘Control,’ if it is not to be pernicious and misleading, must be a very flexible term. It may be enough that the defendant has the right or power of control, and the opportunity to exercise it ***. It is enough that the defendant is under a duty which he cannot delegate to another ***.” W. Keeton, Prosser & Keeton on Torts §39, at 250 (5th ed. 1984).

The allegation that defendant reserved the sole right to maintain the clothesline pole sufficiently alleged the requisite degree of control necessary. This allegation asserts that defendant reserved to himself the sole right and responsibility of maintaining the pole in good repair. If true, as we must assume it to be, defendant denied plaintiff any right to maintain or repair the pole and thus assumed the duty to anticipate and guard against any injury which might arise from the pole’s condition. The allegation supports the inference that the defendant was necessarily negligent. This allegation and those discussed above sufficiently state a cause of action for negligence based upon res ipsa loquitur.

Finally, plaintiff argues that both count I and count II raise genuine issues of material fact such that summary judgment for defendant was improper. As noted above, the parties do not agree on whether summary judgment was entered. Both parties agree, however, that no motion for summary judgment was properly before the trial court and that this court should limit its review to the propriety of the motion to dismiss. Having reviewed the trial court’s order, we believe that the trial court was merely expressing its opinion that summary judgment would have been appropriate, not actually entering summary judgment. Indeed, it would have been inappropriate for the trial court to simultaneously consider the legal sufficiency of the complaint and the propriety of summary judgment. Our supreme court expressly disapproved of this practice in Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605:

“To combine an inquiry into whether a pleading is sufficient to state a cause of action with an examination which almost necessarily assumes that a cause of action has been stated and proceeds to determine whether there are any material issues of fact to be tried is likely to confuse both the parties and the court. If this sort of procedure were sanctioned, it would be left to the reviewing courts to sort matters out and to remand with directions to allow leave to amend the complaint, to require plaintiff to file counteraffidavits, or to provide other appropriate instructions. We therefore expressly disapprove the procedure followed in the trial court. *** When, and only when, a legally sufficient cause of action has been stated should the court have entertained the motions for summary judgment and considered the affidavits filed in support thereof.” (Janes, 57 Ill. 2d at 406, 312 N.E.2d at 609.)

The various districts of this court have likewise condemned this dubious practice. (See Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 603 N.E.2d 1215; Gardner v. Navistar International Transportation Corp. (1991), 213 Ill. App. 3d 242, 571 N.E.2d 1107; Premier Electrical Construction Co. v. LaSalle National Bank (1983), 115 Ill. App. 3d 638, 450 N.E.2d 1360.) In any event, our resolution of the arguments with respect to the motion to dismiss is dispositive, and we need not address the propriety of summary judgment.

For the foregoing reasons, the judgment of the circuit court of Jackson County is reversed and remanded.

Reversed and remanded.

CHAPMAN, P.J., and LEWIS, J., concur.


author: JUSTICE SCHWARTZ

text:
    ROBERT GRAHAM, Plaintiff-Appellee, v. THOMAS E. HILDEBRAND, Defendant-Appellant.
    Fifth District
    No. 5 — 91—0727
    Opinion filed August 9, 1993.
    Thomas E. Hildebrand, of Granite City, appellant pro se.

    Gail Gaus Renshaw, of Wood River, for appellee.
   JUSTICE SCHWARTZ

delivered the opinion of the court:

A brief review of the facts which led to the bringing of the motion for sanctions is necessary to an understanding of the position of this case. A judgment was rendered against a client of the defendant attorney. A post-trial motion was filed with respect to the judgment. While the post-trial motion was waiting to be heard, the judgment debtor filed for bankruptcy. The attorney for the judgment creditor (the plaintiff in the prior proceeding is also the plaintiff in this proceeding) secured an assignment from the trustee in bankruptcy for a malpractice action against the attorney for the judgment debtor (the attorney for the judgment debtor is the defendant in this proceeding). The alleged malpractice was the failure of the attorney for the judgment debtor to submit a claim to the homeowner’s insurance carrier of the judgment debtor for the injuries which had allegedly occurred to the judgment creditor.

The complaint alleging malpractice was filed on June 25, 1990. The post-trial motion was ruled upon on August 7, 1990. The request of the post-trial motion was granted, and a new trial was ordered thereby setting aside the judgment. A motion to dismiss the malpractice action was filed on September 18, 1990, by the defendant, alleging several reasons why the complaint should be dismissed, including the fact that an action for attorney malpractice is not assignable and the fact that the judgment had been set aside by virtue of the granting of a new trial. Three months after the order was entered granting a new trial to the judgment debtor and nearly two months after the defendant filed the motion to dismiss, an order was entered on November 2, 1990, granting the motion of the plaintiff to voluntarily dismiss the malpractice action. No written motion for voluntary dismissal is found of record. One month after the order was entered granting the voluntary dismissal of the malpractice action, the defendant filed a motion pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137) and section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611). A hearing was held on this motion on September 20, 1991, and on the same date an order was entered denying the motion but directing the plaintiff to pay the court costs of the defendant. This appeal is taken from the order entered September 20, 1991.

Initially, it should be noted that Supreme Court Rule 137 became effective August 1, 1989, and it preempted all matters sought to be covered by section 2 — 611 of the Code of Civil Procedure. (See In re Marriage of Sykes (1992), 231 Ill. App. 3d 940, 946, 596 N.E.2d 1226, 1230; Chicago City Bank & Trust Co. v. Pick (1992), 235 Ill. App. 3d 252, 256, 602 N.E.2d 484, 487; People ex rel. Village of Buffalo Grove v. Village of Long Grove (1990), 199 Ill. App. 3d 395, 417, 557 N.E.2d 343, 658.) Supreme Court Rule 137 and section 2 — 611 are the same “except that Rule 137 provides that a circuit court ‘may’ impose sanctions for violations of the rule while section 2 — 611 provides that sanctions ‘shall’ be imposed.” Monco v. Janus (1991), 222 Ill. App. 3d 280, 297, 583 N.E.2d 575, 586.

The decision as to whether sanctions should be imposed is within the sound discretion of the trial judge and will not be reversed on appeal absent an abuse of discretion. (Yassin v. Certified Grocers of Illinois, Inc. (1990), 133 Ill. 2d 458, 467, 551 N.E.2d 1319, 1323.) The Illinois Appellate Court, Third District, set forth baseline criteria in such cases in its decision in the case of In re Estate of Smith (1990), 201 Ill. App. 3d 1005, 1009-10, 559 N.E.2d 571, 573:

“However, the predicate to such deference is that the circuit court make an informed and reasoned decision. A hearing ought to be held to give the parties involved an opportunity to present any evidence needed to substantiate or rebut the claim for sanctions and an opportunity to argue their positions. A hearing was held in this case on the motion for fees and expenses, but the order entered suggests that no evidence was taken at that hearing. In the absence of findings which would justify foregoing an evidentiary hearing, the circuit court erred in not having such a hearing. See Beno v. McNew (1989), 186 Ill. App. 3d 359, 542 N.E.2d 533.
The decision of the circuit court needs to clearly set forth the factual basis for the result reached in order to be accorded deferential treatment. The appellate court in reviewing a decision on a motion for sanctions should primarily be determining whether (1) the circuit court’s decision was an informed one, (2) the decision was based on valid reasons that fit the case, and (3) the decision followed logically from the application of the reasons stated to the particular circumstances of the case. Secondarily, the appellate court should maintain some consistency of result at least for certain situations which are common and for which a clear result follows from the spirit as well as the letter of the applicable rules or statutes. (See generally Mars Steel Corp. v. Continental Bank N.A. (7th Cir. 1989), 880 F.2d 928 (Seventh Circuit’s en banc decision on how to approach review of decisions under Rule 11 of the Federal Rules of Civil Procedure, the rule on which section 2 — 611 and Rule 137 are patterned).) For a court of review to enter its decision without benefit of the trial court’s explicit findings tends to establish too many ad hoc rules of law as to the correct result in any given case. In this case the circuit court undoubtedly had reasons for its decision; however, it failed to express those reasons.”

In Bertuli v. Gaull (1991), 215 Ill. App. 3d 603, 605, 574 N.E.2d 1390, 1391, the Illinois Appellate Court, Third District, followed the ruling set forth in the case of In re Estate of Smith and stated:

“The predicate to such deference, however, is that the circuit court make explicit factual findings upon which a court of review may make an informed and reasoned decision.”

A hearing was held on September 20, 1991, with respect to the motion pursuant to Supreme Court Rule 137 and section 2 — 611 filed by the defendant on December 3, 1990. However, the hearing degenerated into an argument between the attorneys during which no witnesses were sworn, no exhibits were offered, and no evidence was received. The transcript reflects a summary end to the proceedings, with the presiding judge denying the motion. No findings were rendered from the bench or in the order which was entered the same date as the hearing.

During the hearing the defendant alleged that the complaint was spurious and had no basis in law or fact. The defendant further alleged that the malpractice action was filed before the post-trial motion was ruled upon, which is correct based upon the record. He further alleged that the attorney whose signature appears on the complaint knew nothing about it. The defendant alleged that he owes the law firm which represented him in the malpractice action the sum of $1,292.35. No bills, statements, or invoices were offered into evidence.

During the hearing the plaintiff stated that he was informed through discovery that the judgment debtor did not have homeowner’s insurance. However, while waiting on the post-trial motion to be ruled upon, the judgment debtor filed for bankruptcy and the attorney for the plaintiff knew that the judgment “had a chance of being dismissed.” Therefore, the attorney for the plaintiff alleges that he discussed a malpractice action with the senior partner of the firm with the idea that the carrier of the malpractice insurance would pay the judgment in settlement of the malpractice claim. The discussion was whether there was a statute of limitations problem with a malpractice action. The attorney for the plaintiff then went to bankruptcy court and worked out an arrangement with the bankruptcy trustee to have the malpractice action assigned to the plaintiff for a percentage of any amount recovered.

The court then ruled that the matter was not proper under Supreme Court Rule 137 but should be the subject of a malicious prosecution action, and the court denied the motion but awarded court costs.

The decision of the trial court is accorded great deference on appeal and will normally be affirmed if supported by a review of the entire record. However, Supreme Court Rule 137 is penal in nature, requiring the special consideration described by the Illinois Appellate Court, Third District, in In re Estate of Smith (1990), 201 Ill. App. 3d 1005, 559 N.E.2d 571. Using the criteria set forth in the case of In re Estate of Smith, the trial court did not make an informed and reasoned decision. The trial court erred in ruling that this matter was not proper under Supreme Court Rule 137. Supreme Court Rule 137 provides:

“The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** All proceedings under this rule shall be within and part of the civil action in which the pleading, motion or other paper referred to has been filed, and no violation or alleged violation of this rule shall give rise to a separate cause of action, or another cause of action within the civil action in question, by, on behalf of or against any party to the civil action in question, and by, on behalf of or against any attorney involved in the civil action in question.” (134 Ill. 2d R. 137.)

The defendant chose to bring this matter before the court pursuant to Supreme Court Rule 137. The motion of the defendant was appropriate and deserving of an evidentiary hearing. The trial court erred in stating, “I’m denying your motion, as I don’t think it comes under this.”

Therefore, the judgment of the circuit court in this case is reversed, and this cause is remanded with instructions to the trial court to hold a hearing on the motion in conformity with the criteria set forth in In re Estate of Smith.

Reversed and remanded with directions.

LEWIS and McLAUGHLIN, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    DALE SCHICKEDANZ, Plaintiff-Appellant, v. THE CITY OF O’FALLON et al., Defendants-Appellees.
    Fifth District
    No. 5 — 91—0862
    Opinion filed August 13, 1993.
    Rehearing denied September 14, 1993.

      Melroy B. Hutnick, of Belleville, for appellant.
    Delmar O. Koebel, of Lebanon, for appellee City of O’Fallon.
    Robert J. Sprague, of Sprague & Sprague, of Belleville, for appellees Board of Fire and Police Commissioners, Gene Nute, Linda Lang, and Russ Thoman.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Dale Schickedanz, appeals from a judgment of the circuit court of St. Clair County dismissing his complaint for mandamus for lack of subject matter jurisdiction. Plaintiff contends on appeal that the circuit court did have subject matter jurisdiction over the issue ind erred in dismissing the complaint. We affirm.

Plaintiff applied for the position of patrolman with the City of O’Fallon police department. After completing the necessary tests and ob requirements, plaintiff was put on the police patrolman final eligibility roster. When a position became vacant, the city did not hire plaintiff, and he was told that he would not be employed as a police officer. Plaintiff then filed a complaint for mandamus against defendants, City of O’Fallon, Mayor Kristi Vetri, Board of Fire and Police Commissioners (the Board), and Gene Nute, Linda Lang, and Russ Thoman, members of the Board, individually, seeking an order requiring the city and the Board to hire him as a police officer. Defendants filed motions to dismiss, and the trial court dismissed the action with prejudice, stating that the court lacked subject matter jurisdiction over the action. The court further stated that administrative review was the proper procedure to attack a decision of the Board.

Plaintiff argues that we should follow the holding of the Appellate Court, Second District, that the only administrative decisions of the Board to which administrative review law would apply are those relating to removal or discharge of members of fire and police departments. (See Foster v. Board, of Fire & Police Commissioners (1980), 81 Ill. App. 3d 48, 400 N.E.2d 1089; Barrows v. City of North Chicago (1975), 32 Ill. App. 3d 960, 336 N.E.2d 596.) After a thorough analysis of the applicable principles of law, however, we decline to do so. Section 10 — 2.1—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—17) provides that the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.) shall apply to and govern all the proceedings for judicial review for the final administrative decisions of the Board of Fire and Police Commissioners. In Mandeville v. Trucano (1992), 225 Ill. App. 3d 505, 588 N.E.2d 327, this court held that the statute expressly adopts the Administrative Review Law to review the final administrative decisions of the Board of Fire and Police Commissioners. (Mandeville, 225 Ill. App. 3d at 507, 588 N.E.2d at 329.) An administrative decision is defined as:

“[A]ny decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency.” Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101.

It is undisputed that the Board notified plaintiff that he would not be hired. We find that this constituted a final administrative decision as it affected the legal rights, duties, and privileges of plaintiff, and there is no indication of any future proceedings before the Board on the issue of plaintiff’s hiring. Therefore, the Board’s decision not to hire plaintiff was reviewable only by the Administrative Review Law, and the trial court was correct in dismissing plaintiff’s complaint for mandamus.

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

Affirmed.

CHAPMAN, P.J., and LEWIS, J., concur.