author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LONNIE ARSBERRY, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 90—3616
    Opinion filed March 4, 1993.
    Rita A. Fry, Public Defender, of Chicago (John T. Kennedy, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Barbara Jones, and Joseph Alesia, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a trial by jury in the circuit court of Cook County, defendant, Lonnie Arsberry, was convicted of armed robbery (111. Rev. Stat. 1985, ch. 38, par. 18 — 2) and two counts of aggravated battery (111. Rev. Stat. 1985, ch. 38, par. 12 — 4). He was sentenced to 60 years’ imprisonment for the armed robbery conviction and to concurrent five-year terms for each aggravated battery conviction, to be served consecutively to the armed robbery term.

On appeal, defendant contends that (1) he was not tried within 120 days of his arrest; (2) he was erroneously convicted of aggravated battery because the requisite statutory mental element was not proved; (3) the prosecutor made prejudicial and improper remarks during closing argument; and (4) the trial court abused its discretion in dismissing defendant’s petition for discharge without making specific findings of fact.

We affirm.

The following facts were adduced at trial. Deborah Garr, former manager of the Payless Shoe Store at 1935 Mannheim Road in Mel-rose Park, testified that she was working at the store on October 10, 1989, at 2 p.m. She stated that she went to greet a customer at the front of the store when he ordered her and a co-worker, Caroline Bartlett, to go to the back of the store. The women did not move and the man pulled out a gun. He repeated his demand and they complied.

Garr heard another voice at the front of the store instructing someone to “get the manager.” She immediately headed toward the front of the store while the other man continued to point the gun at her. She walked until she stood directly in front of the man who demanded the manager. She identified this man as defendant.

Defendant handed the gunman a “brownish looking” bank bag and told him to get the money. Defendant then went to the back of the store and told Caroline Bartlett to “get on the floor.” The gunman directed Garr to the cash register and ordered her to open it. She opened the register and he reached in and took all the cash except the $1 bills. The gunman then told her to open the safe behind the front counter. He emptied the safe while holding the gun to Garr’s head.

The gunman then walked Garr to the back of the store, nudging her with the gun. At the back of the store she saw Bartlett and the two were ordered to lie on their stomachs. Defendant and the gunman fled the scene, and Garr immediately called the Melrose Park police department. She told police that the men were driving a new, blue Chevrolet Corsica and were traveling south on Mannheim.

Later that afternoon, Garr and Bartlett went to the Melrose Park police department to view a lineup. Garr identified both defendant and the gunman. She also identified the bank bag containing the stolen cash and other items. Bartlett corroborated Garr’s testimony.

Officer Frank Esposito, a patrolman with the Stone Park police department, testified that, on October 10, 1989, he received a dispatch from the Melrose Park police department. He was informed of an armed robbery at the Payless Shoe Store in Melrose Crossing. The dispatch provided a description of the offenders, a description of the vehicle in which they were traveling, and the direction in which they were going.

After receiving the dispatch, Officer Esposito exited the police station and observed a late model, blue Chevrolet Corsica traveling southbound in front of the station. He got into his squad car, followed the Corsica and stopped directly behind it at the intersection of Lake and Mannheim Roads. He observed that the car had Ohio plates and radioed the information to the station. He then turned on his headlights and trailed the vehicle. He pointed to the curb, indicating that the driver should pull over. The vehicle appeared to be pulling over and then accelerated quickly, proceeding eastbound on St. Charles Road.

Officer Esposito continued to pursue the car, activating his siren and his mars lights. At this point, he saw another occupant in the car. He said the car was traveling in excess of 60 miles per hour and he followed it for approximately 10 to 15 blocks.

The car veered onto the curb at 19th Avenue and St. Charles Road, hitting the base of a stoplight. It continued eastbound on the sidewalk about 100 feet, heading into a crowd of people. While driving past the southeast corner of that intersection, he saw one person on the ground and a woman on the hood of the car, which sped away at about 60 miles per hour. He stated that the car traveled about 14 blocks at speeds of between 60 and 70 miles per hour, with the woman on the hood. It eventually hit a railroad sign and some cement pillars on 4th Avenue.

The officer observed the woman fall off the car and saw defendant and the gunman exit the car. Officer Piemonti, also of the Melrose Park police department, proceeded to chase defendant, ordering him to stop. Defendant failed to obey this direction. Maywood police officer Chris Brown finally stopped defendant, and Officer Piemonti handcuffed him and brought him back to 4th Avenue. There he observed a brown bag in defendant’s car. Officer Brown testified that he pursued the car and chased and arrested the gunman.

Patrice Williams testified that on the afternoon of October 10, 1989, she and her boyfriend, Ryan Gwin, were on the southeast corner of 19th Avenue and St. Charles Road. She stated that a car struck Gwin on the left side while they were standing on the sidewalk. As she observed Gwin, she was hit and flew onto the hood of the car. Williams then saw the driver and another man leaning down in the back seat.

After she landed on the car, it accelerated and proceeded down St. Charles Road. She remained on the hood of the car with her face pressed against the windshield. She was crying and begging the driver to stop the car. She testified that defendant never said anything, continued to drive the car, and looked around her body so he could see the road.

Williams was thrown off the car at 4th Avenue and St. Charles Road. She sustained a broken left wrist, a broken left ankle, a two-inch scar on her head, and numerous abrasions.

Ryan Gwin testified to similar facts. He stated that before driving off with Williams on the hood, the car struck his leg, pinning it between the car and a building. He fell onto his back and the car sped down the street. His resulting injuries include a fractured ankle, stitches in his left elbow, and mass abrasions on his back. Presently, he walks with a limp.

After both sides completed closing arguments, the jury convicted defendant of armed robbery and two counts of aggravated battery. He was sentenced to 60 years’ imprisonment for the armed robbery conviction and to concurrent five-year terms for each aggravated battery conviction, to be served consecutively to the armed robbery term. Defendant now appeals his conviction.

Defendant initially argues that he was not brought to trial within 120 days of his arrest in violation of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1987, ch. 38, par. 103 — 5(a)). The statutory provision is as follows:

“§103 — 5. Speedy trial, (a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.” HI. Rev. Stat. 1987, ch. 38, par. 103 — 5(a).

Defendant was arrested on October 10, 1989, and his trial began on October 16, 1990. The case was originally set for trial on July 9, 1990, and defendant does not contest any days between that date and the actual trial date. Consequently, we confine our examination to the period between October 10, 1989, and July 9, 1990, in determining the delays for which defendant is held accountable.

Defendant appeared in court on October 11, 1989, the day immediately following his arrest. The case was continued until October 16, 1989. On this day, defendant expressly consented to a continuance until October 23, 1989, as his lawyer was not present. On the 23rd, defendant still did not have a lawyer and requested “8 or 9 days” to ensure the presence of counsel and the court granted him one week. “A delay is considered ‘occasioned by the defendant’ if his acts have caused or contributed to actual delay (.People v. Donalson (1976), 64 Ill. 2d 536), or where he has expressly agreed to a continuance on the record.” (People v. Brown (1988), 170 Ill. App. 3d 273, 284.) The record clearly illustrates that these initial two delays described above are unequivocally attributable to defendant.

On October 30, 1989, the record shows a “by agreement” continuance until November 13, 1989. On the 23rd, defendant was granted a continuance in order to secure a lawyer, and by the 30th he still had no representation. The continuance until the 13th of November resulted from defendant’s continued lack of counsel. Defendant’s statement that he was ready to proceed with the public defender is of no import. Previously, he had given the impression that he was in the process of securing private counsel and that on October 30, 1989, counsel would be present to represent him. The proceedings on the 30th reflect the continued absence of counsel which necessitated the delay until November 13, 1989. This delay is occasioned by defendant. On the 13th, the State had a motion to supersede with indictment and requested a three-week date for arraignment. December 4, 1989, was set by order of the court, and this period is chargeable to the State.

On December 4, defendant made a motion for substitution of judges which was sustained and the case was assigned to another judge. The court then ordered a “by agreement” continuance until December 8, 1989, and these days are not disputed by defendant. On December 8, defendant requested that his case be severed from that of his codefendant and asked for another substitution of judges. The case was continued until December 12 so the State could research the law pertaining to the allowable number of substitution of judges. “A delay chargeable to a defendant encompasses not only the time period required to hear a motion, but also the additional time necessary to implement the relief requested.” (People v. Helton (1987), 153 Ill. App. 3d 726, 730.) Defendant’s motion for a second substitution of judges engendered the State’s need for time to research the law. Therefore, although the continuance was requested by the State, it is the immediate consequence of defendant’s motion and is accordingly not attributable to the State.

On December 12, 1989, defendant’s substitution of judges motion was granted and the court said it would determine who would hear the case. Prior to this date, the record indicates an agreement to continue the case until December 19 for the filing of discovery. Defendant is bound by acts of counsel (People v. Clay (1981), 98 Ill. App. 3d 534, 541), although his assent to the continuance was not specifically manifested. On December 19, defense counsel explicitly consented to a continuance until January 3, 1990. “When the defense counsel verbally indicates to the trial court that he or she is agreeable to a continuance, he or she has been held to cause or contribute to any delay.” (People v. Brown (1988), 170 Ill. App. 3d 273, 284; see People v. Jarnagan (1987), 154 Ill. App. 3d 187.) This delay is therefore occasioned by defendant.

On January 3, 1990, defense counsel requested one additional status date, rejecting the proposed setting of a trial date. He expressly agreed to continue the case until January 24, 1990. On January 24, defense counsel, who consistently had been the public defender, requested a “motion defendant” until February 16, 1990, so defendant could secure private counsel. Defendant is responsible for this delay.

The next three dates, December 16, 23, and 28, defendant failed to appear in court as he was in Federal custody. This term inclusive of the above dates is not charged to defendant. The 120-day statutory period does not run while the defendant is in the custody of the Federal government. (People v. Neumann (1986), 148 Ill. App. 3d 362, 368.) On February 28, 1990, defense counsel, still the public defender, asked the court to “hold on call March 9, 1990.” “[A]ny delays occasioned by defense counsel are attributed to the defendant ***.” (People v. Clay (1981), 98 Ill. App. 3d 534, 541.) Defendant is accountable for this period.

On March 3, 1990, defense counsel stated that he intended to file a motion for severance and agreed to March 13, 1990, for a hearing on that motion. “A defendant cannot escape responsibility for delay where his action caused the rescheduling.” (People v. Paulsgrove (1989), 178 Ill. App. 3d 1073, 1077.) On March 13, defense counsel responded “sure” in his consent to continue the case until April 2, 1990. “[An] affirmative act [causing a delay] may be manifested as an express agreement to a continuance on the record.” (People v. Reimolds (1982), 92 Ill. 2d 101, 106; see People v. Cunningham (1979), 77 Ill. App. 3d 949.) As previously established and illustrated, defendant is bound by acts of his counsel, and this delay is attributable to him.

On April 2, 1990, defense counsel requested a continuance to April 16 for a hearing on his motion for discovery. The next date on the record is April 25, 1990. This delay was evidently due to a scheduling misinterpretation involving the trial judge. On the 25th, defense counsel agreed to continue the case until May 1, 1990, for a hearing on his motion for severance. “A defendant is considered to have occasioned a delay when he requests a continuance, agrees to a continuance, or when his actions otherwise cause or contribute to a delay.” (People v. Grayson (1988), 165 Ill. App. 3d 1038, 1041.) The period between April 25 and May 1 is chargeable to defendant.

Finally, on May 1, 1990, the motion for severance was heard and the trial court stated that it would rule on the motion on May 7, 1990. “Delays occasioned by a defendant’s own motions *** have been held to be delays attributable to the defendant.” (People v. Helton (1987), 153 Ill. App. 3d 726, 731.) The period between the hearing on the motion and the ruling on the motion is one for which defendant is responsible. The record is silent as to May 7,1990.

Thereafter, on May 8, 1990, defendant’s motion to sever was granted and defense counsel indicated his intention to file motions by June 8, 1990. Also on May 8, a trial date was set for July 9, 1990. This concludes the disputed days.

“A court of review must determine the issues before it solely on the basis of the record made in the trial court.” (People v. Reimolds (1982), 92 Ill. 2d 101, 106-07.) Although the record fails to reflect the express articulation of the party responsible for the delay in each instance, we believe defendant’s actions contributed almost habitually to every delay. “Defendants carry the burden to affirmatively establish a violation of the right to a speedy trial, and delays attributable to a defendant toll the statutory period.” (People v. Grayson (1988), 165 Ill. App. 3d 1038, 1041.) Defendant has resoundingly failed to satisfy this burden. His postulation as to this issue, attributing 167 days of delay to the State, taken in context with the above evaluation of the proceedings, is nothing short of inconceivable.

Defendant next contends that he was erroneously convicted of aggravated battery because the State failed to prove the necessary statutory elements of intentionally or knowingly. We disagree.

The relevant statute as to mental state provides:

“§4 — 4. Intent. A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.” 111. Rev. Stat. 1987, ch. 38, par. 4 — 4.
“§4 — 5. Knowledge. A person knows, or acts knowingly or with knowledge of:
* * *
(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.” 111. Rev. Stat. 1987, ch. 38, par. 4 — 5.

The facts are incontrovertible. Defendant, traveling in dangerous excess of the speed limit, drove onto the sidewalk at 19th Avenue and St. Charles Road striking two people. Undeniably, an individual who drives at such high rates of speed, between 60 and 70 miles per hour, cannot lack the conscious awareness that he might hit someone or something.

A person commits aggravated battery when he intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement. (111. Rev. Stat. 1985, ch. 38, par. 12 — 4.) Defendant drove with Patrice Williams clinging to the hood of the car for 14 blocks before she was eventually thrown off the car and onto the pavement. We cannot state that defendant was not consciously aware that driving at such high speeds with a person on the hood of his car would not result in serious bodily harm to that individual. His actions with respect to Ryan Gwin bring us to the identical conclusion.

The determining inquiry relative to this issue was promulgated by Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781, and adopted by People v. Young (1989), 128 Ill. 2d 1. “ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) (Young, 128 Ill. 2d at 49, quoting Jackson, 443 U.S. at 318-19, 61 L. Ed. 2d at 573-74, 99 S. Ct. at 2788-89.) A thorough perusal of the record reveals the jury’s rational resolution of this issue.

Defendant’s last two arguments, trial court abuse of discretion in denying his petition for discharge and improper prosecutorial comments during closing argument, are waived on appeal. Preservation of an issue on appeal mandates both the objection at trial and the inclusion of the issue in the post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) As defendant has failed to adhere to these essential steps, these arguments are accordingly waived.

For the aforementioned reasons, we affirm the judgment of the circuit court.

Affirmed.

JIGANTI, P.J., and CAHILL, J., concur.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    ANDREW RYDER et al., Plaintiffs-Appellants, v. BANK OF HICKORY HILLS et al., Defendants-Appellees.
    First District (1st Division)
    No. 1 — 88—0923
    Opinion filed February 16, 1993.

      Ambrose & Cushing, RC., of Chicago (John C. Ambrose, of counsel), for appellants.
    Callahan, Fitzpatrick, Lakoma & McGlynn, of Oak Lawn (William F. Fitzpatrick, of counsel), for appellees.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiffs, Andrew Ryder and his wife, Rose Marie Ryder, and Eugene Ryder and his wife, Diane Ryder, brought an action for rescission of a deed conveying title to land to defendants James and Frank Hannigan. Plaintiffs’ complaint included counts against defendant Bank of Hickory Hills (Bank) in connection with the Uniform Commercial Code (UCC) sale of the collateral for a commercial loan. Plaintiffs sought an accounting for the surplus between the balance due on the collateral note and the sum paid at the UCC sale for the collateral. Additionally, plaintiffs sought a judgment against the Bank for its failure to comply with the UCC sale requirements. Following a bench trial, the circuit court found in favor of defendants. Plaintiffs appealed from that judgment. The appellate court found that the circuit court erred in refusing to find that the Bank waived its right to accelerate the loans and, accordingly, reversed and remanded the cause. The Bank appealed that decision. The supreme court reversed the appellate court and remanded the cause back to the appellate court in order to address the remaining issues which were briefed in the initial appeal.

In June 1980, Eugene Ryder obtained a commercial loan in the amount of $21,809.51 for his business, E.A. Ryder’s Carpet Fashions, Inc. In order to obtain the loan, Eugene and his wife, Diane, along with Eugene’s parents, Andrew and Rose Ryder, signed a note dated June 18, 1980, requiring payments totalling $36,409.20 (Commercial Note) and also signed a security agreement to secure the commercial loan. Pursuant to the security agreement, Eugene and Diane assigned their preexisting beneficial interest in their condominium residence at 9830 South Sayer, Chicago Ridge, Illinois, under land trust number 1794, which was secured by the condominium and subject to a mortgage. In addition, Andrew and Rose assigned their preexisting beneficial interest in their residence located at 3744 West 105th Street, Chicago, Illinois, under land trust number 671, which was secured by the residence.

With respect to the above collateral, the Commercial Note contained a “cross collateralization” clause, which provided that the “Bank’s security interest secures all other existing and future indebtedness and obligations of debtor to Bank.” At the time of execution of the security agreement, Eugene Ryder had two other loans at the Bank: a note dated January 20, 1979, for $30,000 (Mortgage Note) which was secured by a first mortgage on Eugene and Diane Ryder’s condominium in Chicago Ridge and an unsecured note made on November 29,1982, for $3,208.68 (Unsecured Note).

In the summer of 1981, Eugene and Diane Ryder entered into a contract for the sale of their condominium to John and Pamela Panos for $50,000. The terms of the contract provided that the Panoses pay Eugene and Diane $10,000 on execution of the contract with the balance to be paid in monthly installments of $310 with a balloon payment at the end of three years. On or about October 1, 1981, Eugene and Diane transferred possession of the condominium to the Panoses and moved to another residence. They did not notify the Bank of the above events.

Philip Sirotzke, the Bank’s loan officer assigned to Eugene Ryder’s commercial loan account, testified that the Bank learned of the condominium sale in October 1983 at a time when it had also learned that the Internal Revenue Service had issued a $17,000 tax levy against Eugene Ryder. Furthermore, Eugene Ryder, whose commercial loan was “continually past-due,” had fallen four to five months behind on the loan payments. Sirotzke testified that the above circumstances caused him to feel very insecure about the Commercial Note and the other loans. On or about October 11, 1983, the Bank sent certified letters to Eugene Ryder and Andrew and Rose Ryder demanding payment in full of the Commercial Note, the Mortgage Note and the Unsecured Note. The letters were returned to the Bank marked “unclaimed.”

In November 1983, Eugene Ryder and Sirotzke had a telephone conversation wherein Sirotzke informed Eugene that the Bank had accelerated the commercial loans and that “to prevent a foreclosure [the Panoses would] have to go out and get a loan right away.” Subsequently, Eugene Ryder accompanied the Panoses to State Equity Company to apply for a loan with the intent to use the loan proceeds to pay the Ryders’ obligations to the Bank. The Bank deferred further action. In March 1984, the Bank was advised that State Equity had disapproved the Panoses’ loan application.

On April 2, 1984, Eugene Ryder made payments to the Bank consisting of six checks totalling $3,059.10, but did not inform Sirotzke of the payments until April 13, 1984. On April 4, 1984, the Bank sent a notice of public sale of the collateral via certified mail to Eugene and Andrew Ryder. After receiving the notice, Eugene and his attorney, Tom Georgis, met with Sirotzke at the Bank on April 13, 1984, at which time they first informed him of the April 2 payments. Sirotzke agreed to continue the sale of April 19, 1984, and give Eugene Ryder an additional 30 days to “refinance or sell the condominium.” Sirotzke also stated that the Bank would consider a further extension if Eugene paid the balance of the $10,000 he received from the sale of his condominium.

On April 19, 1984, Eugene paid the Bank $1,000. On May 10, 1984, the Bank sent the Ryders notices, via certified mail, of a June 1, 1984, public sale. Eugene and Diane Ryder acknowledged receipt of the notice. The certified mailed notice to Andrew Ryder was returned “unclaimed.” A notice sent to Andrew by regular mail, however, was not returned. On May 30, 1984, Eugene telephoned Sirotzke and offered to pay $2,700 to call off the sale, but Sirotzke refused the offer. Prior to the June 1 public sale, a notice of public sale was published in the Southtown Economist three times from May 16 to May 27, as well as three times in the Chicago Daily Law Bulletin. Andrew Ryder claimed that he had no actual knowledge of the June 1 sale. At the sale, James and Frank Hannigan submitted the only bid. The Hanni-gans’ $39,200 bid was accepted. The Hannigans had learned of the sale through one of the newspaper advertisements.

Plaintiffs’ expert appraised the fair market value of the Andrew Ryder residence to be $84,000 and the fair market value of the condominium to be $44,500. The Ryders received no proceeds from the sale. The Ryders subsequently repurchased the Andrew Ryder residence for $43,000, at the same time they arranged a third party to purchase the condominium for $42,000.

Article 9 of the UCC applies to any transaction which is intended to create a security interest in personal property, including goods, documents, instruments, general intangibles, chattel paper or accounts. (111. Rev. Stat. 1985, ch. 26, par. 9 — 102(a).) In Illinois, a beneficial interest in a land trust is personal property classified as a general intangible. (111. Ann. Stat., ch. 26, par. 9 — 106, Illinois Code Comment, at 69 (Smith-Hurd 1974); Levine v. Pascal (1968), 94 111. App. 2d 43, 236 N.E.2d 425; Wambach v. Randall (7th Cir. 1973), 484 E2d 572.) In the case at bar, the cross-collateralization clause gave a security interest in the beneficial interests in the land trusts to secure two other indebtednesses, the Mortgage Note and the Unsecured Note. Article 9, therefore, applies to the transaction and security interest in the case at bar.

The proceeds from the sale of article 9 collateral must be applied to “the satisfaction of indebtedness secured by the security interest under which the disposition was made.” (111. Rev. Stat. 1985, ch. 26, par. 9 — 504(b).) Thus, in the case at bar, the proceeds from the sale of the collateral were properly applied to satisfy the Commercial Note, the Mortgage Note, and the Unsecured Note.

Plaintiffs argue that the proceeds should not have been used to pay off the mortgage debt because the Mortgage Note gave the Ryders all their rights under the Illinois mortgage law of redemption and the 90-day cure period. (111. Rev. Stat. 1987, ch. 110, par. 15— 1101 et seq.) Defendants respond that this argument confuses the mortgage with the debt secured by the mortgage. We agree that the Ryders’ rights in the mortgage securing the mortgage indebtedness are irrelevant under the circumstances in the instant case because the sale involves an article 9 security interest in the debt which is separate from the mortgage securing the debt.

Although not cited by the parties, it is helpful to note an example given in the official comments to the UCC’s article 9:

“The owner of Blackacre borrows $10,000 from his neighbor, and secures his note by a mortgage on Blackacre. [Article 9] is not applicable to the creation of the real estate mortgage. Nor is it applicable to a sale of the note by the mortgagee, even though the mortgage continues to secure the note. However, when the mortgagee pledges the note to secure his own obligation to.X, [article 9] applies to the security interest thus created, which is a security interest in an instrument even though the instrument is secured by a real estate mortgage.” (See 111. Ann. Stat., ch. 26, par. 9 — 102(3), Uniform Commercial Code Comment 3, at 23 (Smith-Hurd 1974).)

Article 9’s application should also not be affected in the circumstances present here merely because the debt is also subject to a mortgage. Under article 9, the proceeds from the UCC sale must be applied to “the satisfaction of indebtedness secured by the security interest under which the disposition was made.” (Emphasis added.) (111. Rev. Stat. 1987, ch. 26, par. 9 — 504(b).) Since the Mortgage Note is covered by the Commercial Note’s “cross collateralization” clause, the Mortgage Note is clearly included in the disposition of proceeds under article 9. (111. Rev. Stat. 1987, ch. 26, par. 9-504(b).) We find that the proceeds from the UCC sale, therefore, were properly applied to satisfy the mortgage debt.

Section 9 — 504(3) requires the commercial sale to be reasonable. (111. Rev. Stat. 1987, ch. 26, par. 9 — 504(3).) The circuit court’s finding as to whether the sale is commercially reasonable will not be reversed unless against the manifest weight of the evidence. (Heritage Standard Bank & Trust Co. v. Heritage Standard Bank & Trust Co. (1986), 149 111. App. 3d 563, 500 N.E.2d 60; Spillers v. First National Bank (1980), 81 111. App. 3d 199, 400 N.E.2d 1057.) The'circuit court found that the $39,200 realized on the forced sale was not a commercially unreasonable price even accepting the Ryders’ expert appraisals that the fair market value of Andrew and Rose Ryder’s home was $84,000 and the fair market value of the condominium was $44,500, for a total market value of $128,500. The circuit court, however, stated that it believed the expert’s opinion as to the above values is questionable in light of the comparables utilized and the fact that the condominium and residence were subsequently repurchased in an arm’s length transaction for a total price of approximately $85,000. The court found that 3072% of the expert’s appraised market value did not establish commercial unreasonableness under the circumstances where there was a legitimate disinterested third-party bidder.

Section 9 — 507(2) of the UCC states that “[t]he fact that a better price could have been obtained by a sale at a different time or in a different method *** is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner.” (111. Rev. Stat. 1985, ch. 26, par. 9 — 507(2).) Illinois courts have found commercially reasonable prices where the UCC sale realized 62% of the collateral’s fair market value (Chicago City Bank & Trust Co. v. Wilson (1980) , 86 Ill. App. 3d 452, 407 N.E.2d 964 (rev’d on other grounds)), where the sale realized 50% (National Boulevard Bank v. Jackson (1981) , 92 Ill. App. 3d 928, 416 N.E.2d 358), and where the beneficial interest had a fair market value of $55,000 but sold for only $3,500 (Horney v. Hayes (1957), 11 Ill. 2d 178, 142 N.E.2d 94).

Based upon the above case law, we hold that the circuit court’s finding was not against the manifest weight of the evidence where the sale of the collateral realized approximately 46% of the actual market value, about $85,000, which was the price paid for the properties in an arm’s length transaction subsequent to the forced sale.

Lastly, plaintiffs contend that the circuit court erred in refusing to award Andrew and Rose Ryder damages pursuant to section 9 — 507(1) of the UCC (111. Rev. Stat. 1987, ch. 26, par. 9 — 507(1)) because the unclaimed notice sent to Andrew via certified mail was not in compliance with the UCC or the terms of the contract, which required the notice be sent to Andrew at a Hickory Hills address. Section 9 — 504(3) of the UCC requires “reasonable notification of the time and place of any public sale *** [to be] sent by the secured party to the debtor.” (111. Rev. Stat. 1987, ch. 26, par. 9 — 504(3).) This section does not require proof of “actual receipt” by the debtor to satisfy the reasonable notice requirement. {La Grange Bank & Trust Co. v. Rodriguez (1985), 137 Ill. App. 3d 1009, 485 N.E.2d 394.) To send a reasonable notice, the notification must be deposited in the mail with postage prepaid and properly addressed. 111. Rev. Stat. 1987, ch. 26, par. 1-201(38).

The circuit court found that the Bank complied with the UCC notice provision. The court noted that the Bank deposited in the mail, postage prepaid, the notification of the June 1 sale to Andrew and Rose Ryder. Further, the post office gave notice to Andrew of the certified mailing by the Bank, first on May 11 and again on May 18. Andrew never claimed the notice. The circuit court stated that “[i]t makes no sense that a debtor could defeat the notice merely by failing to claim mail properly sent.” The Bank published the June 1 sale in the Southtown Economist for three successive weeks beginning on May 16. The circuit court also felt that Andrew and Rose had actual knowledge of the sale, even though such knowledge was denied. The circuit court found the above denial incredible. Andrew admitted that he went to his neighbor’s house to look at the Southtown Economist notice of the public sale. The circuit court reasoned that the publication was for the June 1 sale because he had received notice of the April sale and, therefore, would have no reason to check on a sale about which he already knew. Finally, the court found it unbelievable that Eugene and Andrew did not speak about the June sale before it occurred. We hold that the circuit court’s finding that the notice complied with the UCC is not against the manifest weight of the evidence.

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

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


author: JUSTICE COUSINS

text:
    JANE B. GRABER, Plaintiff-Appellant, v. JANE E. BADEGIAN, Defendant-Appellee.
    First District (5th Division)
    No. 1 — 92—1735
    Opinion filed March 5, 1993.
    Rehearing denied April 16, 1993.
    Rieck & Grotty, P.C., of Chicago (Richard J. Sorman, of counsel), for appellant.
    Bollinger, Ruberry & Garvey, of Chicago (Kenneth E. North and Thomas More Ryan, of counsel), for appellee.
   JUSTICE COUSINS

delivered the opinion of the court:

Plaintiff appeals from an interlocutory order of the circuit court denying her petition for a preliminary injunction to enforce a restrictive covenant. Plaintiff, a dentist, sought to enjoin the defendant, her former associate, from practicing dentistry within a four-mile radius of plaintiff’s office. The trial court denied injunctive relief for the following reasons: (1) the hardship to the defendant which would result if the preliminary injunction was granted outweighed any injury to the plaintiff which would occur if the preliminary injunction was denied; (2) it was unclear whether defendant’s conduct fell within the scope of the covenant because the language of the covenant was ambiguous; and (3) an adequate legal remedy was available — the liquidated damages set forth in the parties’ contract.

We affirm.

Background

The plaintiff, Jane B. Graber, is a dentist licensed to practice in the State of Illinois. Graber has been practicing dentistry for approximately 13 years and has maintained a. practice at 1240 Meadow, Northbrook, Illinois, for approximately eight years. During this time, Graber developed a substantial client patient base.

On January 1, 1988, Graber entered into an agreement with the defendant, Jane E. Badegian, who is also a licensed dentist. Pursuant to the agreement, Badegian was to provide dental services, as an independent contractor, for Graber’s practice. At the time of the agreement, Badegian was recently licensed and had no patients of her own.

The agreement provided in pertinent part:

“1. Association. JANE BADEGIAN will be associated as an independent contractor with the dental practice of JANE B. GRABER as a general dentist in a part-time basis commencing January 1, 1988. The term of association shall be for twelve months and can be renewed from year to year or terminated as provided herein.
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4. Expenses.
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(f) In the event of the termination of the association described herein, a letter endorsing the Practice, in substantially the form of Exhibit C attached hereto and made a part hereof, shall be sent, within thirty days of the termination, to all patients of the Practice who have been treated by BADEGIAN, and the costs of printing and mailing shall be borne by BADE-GIAN.
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8. Restrictive Covenants.
A. BADEGIAN agrees that for a period of five years following the termination of her association with the Practice, BADEGIAN shall not telephone, mail announcements to, or in any way approach or attempt to solicit or cause any other person, firm or corporation to solicit any patient of the Practice or any person whose name appears on patient lists assembled by the Practice or patient lists in possession of the Practice for purpose of providing dental services of any kind.
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C. BADEGIAN agrees that if her association is terminated for any reason by either BADEGIAN or the Practice, she will not be associated in any capacity with any dental office within a four mile radius of the practice for a period of two years. In the event of breach of this sub-paragraph c of Paragraph 8, BADEGIAN agrees that she will pay liquidated damages of thirty-thousand ($30,000) dollars to the Practice.
D. In the event that BADEGIAN violates any of the provisions of this Paragraph 8, the parties acknowledge that the remedy at law for any breach will be inadequate. The Practice shall be entitled, in addition to the liquidated damages specified, (1) to obtain specific performance and injunctive relief to prohibit BADEGIAN from such practices and (2) to obtain money damages for any injury to the Practice resulting from such violations and the Practice shall be relieved of the necessity of proving actual damages or the inadequacy of the legal remedy.”

On August 30, 1990, Graber and Badegian amended the agreement. The amendment reworded the letter referenced in paragraph 4(f), but left the other essential provisions intact.

At some time between April 15 and April 18, 1991, the parties terminated their agreement. On or about April 18, 1991, Badegian advised Graber that she intended to relocate her dentistry practice to 4115 Dundee Road (Sanders Court), Northbrook, Hlinois. According to the plaintiff, Badegian represented to Graber that the Dundee office was more than four miles from Graber’s Meadow office. In contrast, Badegian maintains that she told Graber that the distance was no more that 3.9 miles away from Graber’s office. The actual distance was 2.85 miles.

On approximately April 19, 1991, both parties signed the following letter which was presented to Graber by Badegian:

“This is to confirm our conversation and agreement of Thursday, April 18, 1991, regarding the termination of our association and contract dated 1990. Subsequent to our agreement, you will display a notice in the reception area, stating my final date of professional services at your office will be May 16, 1991. Furthermore, this notice per our agreement identifies my new location as 4115 Dundee Road (Sanders Court), North-brook, Illinois.”

On June 20, 1991, Graber filed her verified complaint and petition against Badegian seeking a temporary restraining order and preliminary injunction to prohibit Badegian’s violation of the agreement. The court, Hon. Sophia Hall, presiding, denied the injunctive relief sought by Graber on June 26, 1991, and again on July 15, 1991, when Graber renewed the petition.

Subsequently, Badegian decided to relocate her dental practice. She retained the services of Jackie Elliott, a real estate agent, who suggested the location commonly known as 1304 Waukegan Road, Glenview, Illinois. Elliott measured the distance from the new location to Graber’s office and concluded that the offices were over four miles apart. Prior to executing a lease at the Glenview office, defendant also sought the advice of village planners.

On or about November 8, 1991, Badegian advised Graber that she was considering leasing office space for a dental practice at 1304 Waukegan Road in Glenview. Graber responded that she would seek strict enforcement of the restrictive covenant. Subsequently, on December 20, 1991, Badegian executed a five-year lease for the Glen-view office.

On April 1, 1992, plaintiff commissioned a licensed land surveyor to determine the distance between the plaintiff’s Meadow office and 1304 Waukegan Road. The surveyor reported that the distance between the buildings was 3.8657 miles, 709.1 feet short of four miles.

On April 9, 1992, Graber, filed an amended verified complaint for a temporary restraining order and preliminary injunction. On April 27, 1992, the court, Hon. Everette Braden, presiding, denied the plaintiff’s petition for the following reasons:

“[T]he Court feels that by granting the injunction, it would cause an extreme harsh result to the defendant, and the Court in that regard was particularly mindful of the case of Boot [sic] where in that case there was an injunction before the court, and the Court agrees with the ruling in Boot [sic] that it requires the court to consider a balancing of the injury of the parties in considering whether an injunction should be granted.
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*** [T]his Court considers this case to be an antithesis of Boot [sic]. In that case, the granting of the injunction, the court felt that it would cause an extreme injury to the plaintiff if the injunction was not granted. In this case, the Court considers that just the opposite. If the injunction is granted, the Court feels that it would be an extreme hardship to the defendant. Also, the court feels that the injury here could be compensated by adequate remedy at law as far as damages are set forth in the agreement itself.
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*** [With respect to] the language of the agreement itself the Court certainly feels that there is some question as to whether that restriction in the agreement as far as association is concerned, whether the defendant’s conduct of engaging in practice as a sole practitioner would fall within the scope and ambit of that language.
So for that reason, the Court is denying the relieve [sic] requested by the plaintiff in asking that the conduct of the defendant be enjoined.”

On April 30, 1992, Graber filed her notice of interlocutory appeal, pursuant to Illinois Supreme Court Rule 307 (134 111. 2d R. 307).

Opinion

The trial court is vested with a large measure of discretion in the grant or refusal to grant a preliminary injunction, and its determination will not be overturned on review absent a showing of the abuse of that discretion. (Hayden’s Sport Center, Inc. v. Johnson (1982), 109 Ill. App. 3d 1140, 1144-45, 441 N.E.2d 927; Shorr Paper Products, Inc. v. Frary (1979), 74 Ill. App. 3d 498, 502, 392 N.E.2d 1148.) In determining whether the circuit court abused its discretion, this court should not decide whether it agrees with the circuit court’s decision, but rather, should determine whether the circuit court acted arbitrarily, or in view of all the circumstances, exceeded the bounds of reason and ignored recognized principles of law. Zurich Insurance Co. v. Raymark Industries, Inc. (1991), 213 Ill. App. 3d 591, 572 N.E.2d 1119.

A preliminary injunction is an extraordinary remedy and should be granted with the utmost care. (Hayden’s Sport Center, 109 Ill. App. 3d at 1145; Shorr Paper Products, 74 111. App. 3d at 505.) The party seeking a preliminary injunction must carry the burden of persuasion on four issues: (1) there is no adequate remedy at law and there will be irreparable injury if the injunction is not granted; (2) the threatened injury to him will be immediate, certain, and great if the injunction is denied while the loss or inconvenience to the defendant is comparatively small and insignificant if granted; (3) there is a reasonable likelihood of prevailing on the merits of the case; and (4) there would be no injurious effect upon the general public. McCor mick v. Empire Accounts Service, Inc. (1977), 49 Ill. App. 3d 415, 417, 364 N.E.2d 420.

In this case, plaintiff Graber sought to enjoin her former associate, Badegian, from practicing dentistry within a four-mile radius of Graber’s office. The circuit court denied the plaintiff’s petition for a preliminary injunction primarily because it found that the second prerequisite for the issuance of a preliminary injunction was not met. The circuit court found that the hardship to the defendant which would result if a preliminary injunction was granted outweighed any injury to the plaintiff which would occur if the preliminary injunction was denied. We agree.

The contract entered into by the parties contained a restrictive covenant which provided that Badegian would not be associated with any dental office within a four-mile radius of Graber’s office for a period of two years. The licensed land surveyor which the plaintiff commissioned to determine the distance between plaintiff’s office at 1240 Meadow, Northbrook, Illinois, and the defendant’s office at 1304 Waukegan Road, Glenview, Illinois, reported that the distance between the buildings was 3.8657 miles, 709.1 feet short of four miles. We note that the difference between 3.8657 and 4 miles is equivalent to a deviation of 3.3%.

Graber did not demonstrate that she was injured as a result of the defendant’s 3.3% deviation from the terms of the agreement. Instead, she urges this court to presume injury. Graber insists that she has a protectable interest in her patients. She argues that once a protectable interest is demonstrated, “injury to plaintiff will presumably follow if that interest is not protected.” See Morrison Metalweld Process Corp. v. Valent (1981), 97 Ill. App. 3d 373, 380, 422 N.E.2d 1034.

The trial court made no findings with respect to the question of whether Graber possessed a protectable interest in her patients. Assuming, arguendo, that Graber does have a protectable interest in her patients, the trial court must still balance the hardships which might result to the parties from the grant or denial of an injunction. (See Booth v. Greber (1977), 48 Ill. App. 3d 213, 363 N.E.2d 6.) In balancing the hardships, the trial court must conclude that the granting of temporary relief outweighs any possible injury which the defendant might suffer by its issuance. Booth, 48 Ill. App. 3d at 217; Professional Business Management, Inc. v. Clark (1967), 83 Ill. App. 2d 236, 241, 227 N.E.2d 371.

The record contains no evidence of substantial injury to Graber. In light of modem methods of transportation, the difference between 4 miles and 3.8657 miles is minuscule.

In contrast, the record indicates that if the preliminary injunction is granted, the injury to the defendant would be great. Badegian produced evidence which indicates that if she is forced to move from the Glenview office, she will lose her entire investment in that office, and in all likelihood, enter bankruptcy. In addition to statements prepared by her accountant which attest to her financial condition, Badegian provided evidence of a five-year lease commitment as well as other obligations resulting from her investment in the Glenview office. Furthermore, she demonstrated her good-faith belief that her new office was in fact four miles from the plaintiff’s office by providing affidavits from her real estate agent and the village planner.

In light of all the evidence presented, we cannot say that the trial court abused its discretion in concluding that the hardship to the defendant which would result if the preliminary injunction was granted outweighed any injury to the plaintiff which would result if the preliminary injunction was denied. Therefore, we hold that the preliminary injunction was properly denied.

The circuit court relied upon two additional grounds to support its decision to deny the petition for a preliminary injunction. Although the validity of these additional grounds does not affect our holding, these issues may resurface in the subsequent proceedings below. Therefore, we briefly address the alternate grounds for the trial court’s holding.

The circuit court expressed doubt that plaintiff would succeed on the merits. The court was not convinced that the restrictive covenant actually prohibited the behavior plaintiff sought to enjoin. The relevant portion of the parties’ agreement provides: “BADEGIAN agrees that if her association is terminated for any reason by either BADE-GIAN or the Practice, she will not be associated in any capacity with any dental office within a four-mile radius of the practice for a period of two years.” (Emphasis added.)

Badegian insists that this language indicates that the parties only wished to prohibit Badegian from associating with another dental office (i.e., a competitor), and did not prohibit her from setting up a solo practice within the four-mile radius. On the other hand, Graber maintains that the parties intended to prohibit defendant from practicing dentistry in any capacity within a four-mile radius.

Defendant argues that because the language is ambiguous, it must be construed against the drafter, Graber, in this case. (See City of Chicago v. Carpenter (1968), 95 Ill. App. 2d 81, 283 N.E.2d 70.) The trial court apparently believed that there was some ambiguity surrounding the meaning of the word “association.”

We find no ambiguity in this language. The restrictive covenant plainly prohibits Badegian from associating with any dental office, within a four-mile radius, in any capacity. The language is broad enough to encompass solo practice as well as any form of association.

Finally, the trial court denied injunctive relief on the ground that an adequate legal remedy was available to the plaintiff — -the liquidated damages provided for in the agreement. While we hold that the preliminary injunction was properly denied, we consider it premature to determine the adequacy of a legal remedy at this time. The denial of the preliminary injunction does not preclude the trial court from subsequently issuing a permanent injunction. The determination of the appropriate remedy in this case cannot be made without additional factual findings.

For the foregoing reasons, we hold that the circuit court did not abuse its discretion in refusing to enter a preliminary injunction against the defendant.

Affirmed.

GORDON, P.J., and MURRAY, J., concur.