text:
    TODD B. McKEE et al., Plaintiffs-Appellees, v. THE FIRST NATIONAL BANK OF BRIGHTON, Defendant-Appellant.
    Fourth District
    No. 4—90—0788
    Opinion filed October 17, 1991.

      Ronald C. Mottaz, of Thomas, Mottaz, Eastman & Sherwood, of Alton, for appellant.
    John M. Delaney, Jr., and Steven Selby, both of Allen, Mendenhall, Delaney & Associates, of Alton, for appellees.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Following a bench trial, the circuit court of Macoupin County awarded damages to plaintiffs Todd and Suzanne McKee in the amount of $216,375 for the breach of a loan commitment by defendant the First National Bank of Brighton. Of this amount, $196,000 was awarded for plaintiffs’ loss of profits. The balance of the judgment was for reimbursement to plaintiffs for various out-of-pocket expenses. Defendant now appeals from this judgment, claiming (1) there was no contract; or (2) if there was a contract, there was no breach of the loan commitment by the defendant; and (3) if there was a breach, the trial court erred in awarding any lost profits to plaintiffs. We reverse.

In September 1986, plaintiffs applied to defendant for a construction loan to build a gasoline service station-convenience store, to be known as PDQ Mart (PDQ). The land on which the improvements were to be constructed had been purchased for this purpose by Fassero Oil Company (FOC), plaintiffs’ partner in the project. FOC had taken record title to one of the lots, and had purchased the other lot through an assignment of a contract that had a favorable interest rate. Plaintiffs were to own and operate the improvements, and FOC was to lease the land to plaintiffs for a 20-year period. FOC would own the underground gasoline storage tanks and other equipment and supply gasoline to plaintiffs. FOC and plaintiffs were to split profits on sales of self-service gasoline.

Plaintiffs, together with John and Ben Fassero, principals of FOC, met with officials of defendant in early September 1986 to discuss the project and the terms of a proposed loan. These negotiations led to a written offer from defendant to make a loan to plaintiffs in the amount of $340,000. This loan was to be made only to plaintiffs, not FOC. The loan commitment was made subject to the following conditions: plaintiffs were to grant defendant a security interest in the building, equipment and inventory, assign their lease with FOC to defendant, grant defendant a second mortgage on their personal residence, and obtain life insurance on themselves and assign it to defendant. A further condition was that FOC take record title to all the land in its own name and subordinate its interest in the land to defendant’s loan, a condition to which FOC had agreed in principle at the prior meeting. The letter did not specify how the subordination would be accomplished.

Although plaintiffs did not accept the loan commitment offer in writing, they verbally informed defendant’s officials that the loan commitment was acceptable to them. Further, they requested, and received, a letter from defendant to give to their architect confirming the loan commitment. Plaintiffs also began immediately to fulfill some of the loan conditions. By late September 1986, plaintiffs had purchased the required life insurance and assigned it to defendant. Within approximately two months of the date of the loan commitment, most of the conditions in the commitment letter had either been complied with or were expected to be met. Loan conditions were still being met by plaintiffs and FOC as late as December 1986, when an amendment to plaintiffs’ lease with FOC was signed, assigning the lease to defendant in the event of plaintiffs’ default on the proposed loan.

Plaintiffs commenced construction on the project shortly after approval of the loan. Defendant became concerned about plaintiffs beginning construction without all loan conditions having been met. One of defendant’s officials hand-delivered a letter to plaintiffs on October 9, 1986, advising plaintiffs that they were proceeding at their own risk in continuing with construction before all conditions had been met. The letter cautioned plaintiffs that defendant’s approval of the loan was conditional and not an absolute commitment of funds. The letter further stated that no loan could be made to plaintiffs until all conditions of the loan commitment letter had been met, defendant had adequate security, and proper documents had been executed by all parties and recorded. Despite this warning, plaintiffs continued with construction, evidently believing that all loan conditions would eventually be met.

FOC was represented by an attorney, Richard Meno (Meno), in regard to the subordination matter. Defendant retained Robert Watson (Watson) as legal counsel to assist in the accomplishment of the subordination. All negotiations were handled between the two attorneys.

Meno submitted a proposed subordination agreement to Watson, by which FOC would subordinate its interest in the land to defendant’s loan. In the event of plaintiffs’ default on the loan, FOC was given the right to take over the loan. If FOC chose not to exercise this right, the agreement obligated FOC to execute “a good and sufficient Warranty Deed” of the real estate to defendant. After sale of the real estate, the agreement provided for FOG to receive any proceeds of sale remaining after satisfaction of defendant’s loan and expenses. About the same time, Meno also submitted to Watson some proposed language for inclusion in plaintiffs’ note and mortgage, by which FOG would be relieved of any personal liability for repayment of plaintiffs’ loan, thus recognizing the possibility of accomplishing the subordination by FOG joining in the note and mortgage. It was clear from testimony at the trial, however, that FOG preferred to accomplish the subordination by means of the proposed subordination agreement. Despite the condition in the loan commitment letter requiring FOG to take record title to the land, FOG still hoped to retain its favorable contract on one of the lots.

Watson submitted this proposed agreement to Attorneys’ Title Guaranty Fund, Inc. (Attorneys’ Title), for an opinion on the sufficiency of the agreement and on the insurability of defendant’s proposed mortgage with plaintiffs. The reply he received from corporate counsel for Attorneys’ Title stated that defendant’s mortgage on the premises could be insured only if FOG, as owner of the fee, joined in the execution of the mortgage. Watson relayed this information to Meno and indicated he preferred to accomplish the subordination by FOG signing plaintiffs’ note and mortgage. Watson prepared the note and mortgage for signature by plaintiffs and FOG. Both the note and mortgage contained exculpatory language as to FOG, relieving it of any liability for repayment of the note or for any deficiency upon foreclosure of the mortgage. Both documents also gave FOG the right to take over plaintiffs’ payments on the note and mortgage in the event of their default.

' FOG refused to sign the note and mortgage. Testimony at trial indicated that some of FOC’s stockholders were concerned about FOG being committed to plaintiffs’ loan and the possible limitation on FOC’s future ability to borrow as long as plaintiffs’ loan with defendant was outstanding.

Plaintiffs were notified on January 15, 1987, by John Fassero that FOG would not cosign the note and mortgage. At that time, PDQ was only a few weeks away from completion, because plaintiffs had continued with construction despite receiving no disbursement of funds on the loan by defendant.

Evidence at trial was conflicting concerning what plaintiffs knew about events taking place regarding the subordination issue. Defendant’s officials testified they had advised plaintiffs from time to time that there were some problems with the paperwork. Apparently, no one specifically told plaintiffs the deal might fall through because of the lack of acceptable subordination by FOC. In fact, it is not clear from the record just when defendant was notified about FOC’s refusal to sign the note and mortgage. It would appear the first indication defendant had about FOC’s refusal may have come from plaintiffs themselves in January 1987, after they were told by John Fassero of FOC’s decision.

After learning of FOC’s refusal to meet the subordination condition in the manner required by defendant, plaintiffs made no demand upon defendant to make the loan to them. In fact, it appears plaintiffs and officials of defendant simply let the matter drop. One of defendant’s officials testified that as far as he was concerned, the loan was still open. However, it is clear defendant was not willing to disburse any funds to plaintiffs under its commitment, unless FOC agreed to subordinate its interest in the land in the manner required by defendant.

After the loan from defendant fell through, FOC paid for construction of PDQ and took over its operation. Plaintiffs entered into negotiations with FOC, attempting to salvage something from the PDQ project. They entered into an oral lease, by which plaintiffs operated the service station portion of PDQ for approximately six months. After that, plaintiffs entered into a lease to operate the Brighton Amoco station across the street from PDQ. Plaintiffs were operating this business at the time of trial in this cause. Plaintiffs then filed suit, seeking damages for the alleged breach of the loan commitment by defendant.

On appeal, we need address only the questions of whether a contract existed and, if so, whether defendant breached that contract.

Defendant argues there was no contract because of the failure of plaintiffs to “accept” the key subordination condition; that because plaintiffs did not perform this condition, there was no acceptance of defendant’s offer. We disagree.

The evidence shows a contract between the parties did in fact exist. A contract requires an offer, an acceptance, and consideration. (LaSalle National Bank v. Vega (1988), 167 Ill. App. 3d 154, 520 N.E.2d 1129.) An offer was made by defendant in its September 17, 1986, loan commitment letter. That letter did not require any particular mode of acceptance by plaintiffs. It simply stated: “Upon acceptance of the above terms and conditions^] The First National Bank of Brighton will proceed as quickly as possible to complete the transaction.” While it was undisputed that plaintiffs did not accept the offer in writing, the testimony at trial indicated plaintiffs had verbally advised defendant’s officials of their acceptance. They requested, and received, a letter from defendant confirming the loan commitment to give to their architect. These manifestations of assent to the offer by plaintiffs were sufficient to constitute acceptance of the offer. Testimony at trial indicated that in prior loan transactions between the parties, defendant had prepared all necessary paperwork for plaintiffs to sign. In light of this past relationship, the only reasonable interpretation of the above-quoted sentence from defendant’s offer is that once plaintiffs notified defendant the conditions were satisfactory, defendant would begin the process of completing the paperwork necessary to the payout of the loan proceeds. Thus, defendant’s offer did not contemplate that the offer of a loan commitment could be accepted only upon completion of all conditions; that is not to say, however, that the payout of the loan proceeds was not subject to the performance of the enumerated conditions.

An offeree may also accept an offer by performance of an act required by the offer. (Weather-Gard Industries, Inc. v. Fairfield Savings & Loan Association (1969), 110 Ill. App. 2d 13, 248 N.E.2d 794.) Here, plaintiffs not only verbally accepted the loan commitment offer, they almost immediately commenced performance of the conditions which it was possible for them to perform, as is evidenced by their fulfillment of the life insurance requirement.

There was adequate consideration to support the contract in this case. “[A]ny act or promise which is of benefit to one party or disadvantage to the other is a sufficient consideration to support a contract.” (Libertyville Township v. Woodbury (1984), 121 Ill. App. 3d 587, 592, 460 N.E.2d 66, 71.) Here, defendant promised to loan a considerable amount of money to plaintiffs if the specified conditions Were met. Plaintiffs agreed to perform those conditions and did, in fact, perform several of them.

This brings us to the second of defendant’s arguments — that, if a contract existed, there was no breach of it by defendant because not all conditions of the loan had been met by plaintiffs and FOC.

Findings of fact made by the trial court will not be disturbed on review unless they are contrary to the manifest weight of the evidence. (Village of Wilsonville v. SCA Services, Inc. (1981), 86 Ill. 2d 1, 15, 426 N.E.2d 824, 831; John J. Calnan Co. v. Talsma Builders, Inc. (1977), 67 Ill. 2d 213, 218, 367 N.E.2d 695, 698.) However, we must set aside the findings of the trial court in this case for reasons set forth below.

Defendant’s September 17, 1986, commitment letter contained several conditions which had to be met by plaintiffs to secure the loan from defendant. The only condition with which there was any diffictdty was the requirement that FOC subordinate its interest in the land to defendant’s loan. The trial court was of the opinion that the subordination agreement proposed by FOC would have been sufficient to accomplish the subordination of FOC’s interest in the land to the lien of defendant’s mortgage with plaintiffs. The court believed that defendant’s requirement that FOC cosign plaintiffs’ note and mortgage as the only satisfactory method of subordination was without merit. The court found that by refusing to accept FOC’s proffered subordination agreement, defendant breached the contract to make the loan to plaintiffs. In making these findings, the trial court implicitly found that defendant had acted unreasonably in requiring FOC to execute the note and mortgage. We disagree with this reasoning.

Defendant relied upon its legal counsel in deciding what form the subordination should take. Defendant’s attorney submitted FOC’s proposed agreement to Attorneys’ Title for an opinion as to the sufficiency of the agreement and the insurability of defendant’s mortgage. The answer he received was clear and unequivocal — FOC must join in the mortgage in order to provide defendant with adequate security. The mortgage would not be insurable without the owner of the real estate joining in the execution of it. It was only after receiving this communication from Attorneys’ Title that defendant’s attorney told FOC’s attorney that FOC would have to sign the note and mortgage.

The attorneys for defendant and FOC both testified at trial. Both men agreed that subordination of FOC’s interest in the land could be accomplished through a separate agreement, or through FOC joining in the note and mortgage with appropriate exculpatory language. Watson testified that execution of plaintiffs’ note and mortgage by FOC would have provided defendant with a lien on the property of a more secure nature. He further testified that the proposed subordination agreement had not been prepared with the apparent intention of recording it. Therefore, it would not be notice to third parties that FOC had any obligation to subordinate its interest in the land to defendant’s loan with plaintiffs. He also testified that nothing in the agreement would have prevented FOC from removing its improvements from the land, thus impairing defendant’s security. In the event of a default by plaintiffs on their loan and, if FOC did not willingly comply with its agreement to convey the land to defendant, it would have been necessary for defendant to file two lawsuits in order to realize on its security — one against plaintiffs and the other against FOC asking for specific performance of the subordination agreement. Defendant’s counsel testified these potential problems would be eliminated by FOC joining in the note and mortgage.

FOC’s counsel also testified along the same lines. He said the proposed subordination agreement would have been fine for FOC’s purposes, but he admitted defendant would have a difficult time realizing on its security with only the protection of the subordination agreement. One of the reasons he had originally drafted this agreement was that FOG wanted to keep its favorable contract for deed on part of the land, despite the explicit condition of the loan commitment that FOG acquire record title to all the land.

Every contract implies a duty of good faith and fair dealing between the parties. (Carrico v. Delp (1986), 141 Ill. App. 3d 684, 490 N.E.2d 972; Honkomp v. Dixon (1981), 97 Ill. App. 3d 476, 422 N.E.2d 949.) Implicit in the trial court’s decision on this issue is the finding that defendant breached this duty to plaintiffs by insisting that FOG execute the note and mortgage as the only acceptable manner of subordination. Such a finding is not supported by the evidence. Both Watson and Meno testified that the purpose of the subordination would dictate how it should be accomplished. Here, the obvious purpose of FOC’s subordination was to provide the maximum security possible for what was to be a very substantial loan from defendant to plaintiffs. From FOC’s standpoint, the purpose would have been to induce the defendant to make the loan to plaintiffs but, at the same time, to protect FOG from any liability for repayment of the loan. All the testimony at trial indicated that the proposed exculpatory language placed in the note and mortgage would have accomplished everyone’s goals. Indeed, the language used was provided by FOC’s own attorney. Under the circumstances, defendant’s requirements of FOG with regard to the subordination were entirely reasonable, and they did not cause a breach of the contract with plaintiffs.

Along with the other loan conditions, the condition requiring FOG to subordinate its interest in the land to defendant’s loan was a condition precedent to defendant’s duty to perform its obligations under the contract. A condition precedent is one which must be performed before a contract becomes effective or which is to be performed by one party to an existing contract before the other party is obligated to perform. (Lyntel Products, Inc. v. Alcan Aluminum Corp. (1981), 107 Ill. App. 3d 176, 437 N.E.2d 653.) If the condition remains unsatisfied, the obligations of the parties are at an end. Whether an act is necessary to the formation of the contract or to the performance of an obligation depends upon the facts of the case. (Lyntel, 107 Ill. App. 3d at 181, 437 N.E.2d at 657.) The language “subject to” generally indicates a party’s promise is not to be performed unless a condition occurs. In re Estate of Bajonski (1984), 129 Ill. App. 3d 361, 472 N.E.2d 809.

Under the facts in the instant case, as indicated above, the loan conditions were clearly intended to be performed prior to defendant’s obligation to make the loan, rather than prior to the formation of the contract. Although it is true that the performance of the key subordination condition was not within plaintiffs’ control, it was the responsibility of FOG as plaintiffs’ partner in the PDQ project. The failure of FOG to perform this condition to defendant’s satisfaction meant that defendant did not have the duty to make the loan to plaintiffs. Its obligation to perform under the contract therefore did not arise and there was no breach when the loan was not made.

The judgment of the trial court is therefore reversed.

Reversed.

STEIGMANN and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN PRESIDING JUSTICE LUND, JUSTICE GREEN,

license: Public Domain

text:
    BOARD OF EDUCATION OF THE CITY OF PEORIA, SCHOOL DISTRICT No. 150, a/k/a Peoria School District No. 150, Petitioner, v. THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—91—0029
    Opinion filed October 24, 1991.

      LUND, P.J., specially concurring.
    GREEN, J., specially concurring.
    Julian E. Cannell, of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria, for petitioner.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jerald S. Post, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Arlene Y. Coleman-Romeo, of Witwer, Burlage, Poltrock & Giampietro, of Chicago, for respondent Peoria Federation of Teachers.
   JUSTICE STEIGMANN

delivered the opinion of the court:

After the Peoria School District No. 150 (District) fired Clarice Russell, she filed a complaint with the Illinois Educational Labor Relations Board (Board). In August 1990, a hearing officer for the Board found that the District had violated section 14(a)(3) and, derivatively, section 14(a)(1) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1989, ch. 48, pars. 1714(a)(3), (a)(1)). (Peoria School District 150, 6 Pub. Employee Rep. (Ill.) par. 1120, No. 90—CA—0017—S (Illinois Educational Labor Relations Board, Hearing Officer’s Recommended Decision and Order, Aug. 27, 1990) (hereinafter 6 Pub. Employee Rep. (Ill.) par. 1120 (Hearing Officer’s Recommended Decision)).) The District filed exceptions to the hearing officer’s recommended decision, but the Board, in December 1990, affirmed the hearing officer’s findings and adopted his rationale and order. (Peoria School District 150, 7 Pub. Employee Rep. (Ill.) par. 1009, No. 90—CA—0017—S (Illinois Educational Labor Relations Board, Dec. 19, 1990) (hereinafter 7 Pub. Employee Rep. (Ill.) par. 1009).) The District appeals and we reverse.

I. Facts

The District hired Russell in August 1988 as a class “B” secretary and assigned her as the vocational education secretary reporting to associate superintendent Dennis L. Gainey. In November or December 1988, Chester W. Dugger replaced Gainey as Russell’s boss.

Dugger was not satisfied with Russell’s work and wrote a memo on February 24, 1989, describing her deficiencies and recommending that Russell be “removed from her present position.” Maxine Wortham, executive director of personnel, and her assistant, Mary Ryon, informed Russell of Dugger’s complaints at a performance review in June 1989. Dugger wrote a second memo on June 8, 1989, again recommending that the District remove Russell from her current position. Russell was not aware of this memo until after the District fired her. On June 22, 1989, Dugger wrote a third memo, this time specifically requesting that Russell be terminated. This memo was prompted by a phone call between Dugger and Robert Senn, a computer consultant who had been working for the district. Senn complained to Dugger that Russell was uncooperative and verbally abusive toward him. In his third memo, Dugger said that Russell engaged in similar behavior with other district employees, specifically Cindy Bennett and Dale Hoffman.

Russell met with Dugger and Wortham on July 14, 1989, to discuss Russell’s job performance. Russell testified that she requested union representation at this meeting, but Wortham told her that because it was a nondisciplinary meeting, union representation was not required. Russell attended the meeting despite not having a union representative present. In the weeks following this meeting, Wortham began to recommend to Russell that she consider transferring to another position within the school district. Wortham and Ryon informed Russell of other positions available within the school district, but Russell rejected all of them.

On August 4, 1989, Dugger asked Russell to meet with him and Wortham to discuss an incident between Russell and Hoffman. Russell testified that as she and Dugger walked to Wortham’s office, she requested a union representative, but Dugger told her it was a nondisciplinary meeting, meaning that a union representative would not be necessary. At Wortham’s office, Dugger, Wortham, and Russell all sat at a small table. Dugger informed Russell that things were not working out. At that point, Russell immediately responded in an abrupt and defensive manner, charging that Dugger was out to fire her. Wortham suggested to Russell that she listen to what Dugger had to say. Dugger told Russell that he had decided to replace her, at which point Russell accused Dugger of not liking her, of liking another office employee better, and asserted that Dugger just did not want Russell to have this job. Russell’s voice became quite loud and she expressed her wish to have a union representative with her during the meeting if they were going to fire her. She then left the office. Dugger subsequently testified that it was his intention only to remove Russell from her position as vocational education secretary.

Approximately five minutes later, Russell returned to Wortham’s office with the union representative, but Dugger had already returned to his office. Later that afternoon, Dugger consulted with either Wortham or Ryon and then informed Russell in writing that she was fired “due to your insubordinate behavior at the time Dr. Wortham and I tried to talk with you at approximately 2:15 p.m. today; this is symptomatic of your attitude not only with myself, but with others with whom you have had contact with [sic] throughout the year.” Although Dugger did not have authority to fire Russell, Wortham did formally fire Russell from the District on Monday, August 7, 1989, when Russell reported back to work. Wortham testified that the cause of Russell’s termination was her “insubordinate behavior and inability to work with others after being warned.”

II. The Complaint

The relevant portions of section 14 of the Act are as follows:

“(a) Educational employers, their agents or representatives are prohibited from:
(1) Interfering, restraining or coercing employees in the exercise of the rights guaranteed under this Act.
* * *
(3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any employee organization.
* * *
(5) Refusing to bargain collectively in good faith with an employee representative which is the exclusive representative of employees in an appropriate unit, including but not limited to the discussing of grievances with the exclusive representative ***.” Ill. Rev. Stat. 1989, ch. 48, pars. 1714(a)(1), (a)(3), (a)(5).

Russell’s complaint asserted the following three violations of the Act: (1) the District violated sections 14(a)(1) and (a)(3) by denying Russell union representation at the disciplinary meeting; (2) the District violated section 14(a)(3) by terminating Russell because of her refusal to attend the meeting without union representation; and (3) the District refused to bargain collectively and in good faith, violating section 14(a)(5) and, derivatively, section 14(a)(1), by denying Russell union representation at the meeting.

The hearing officer made two specific findings. First, he found that the District did not violate either sections 14(a)(1) or (a)(5) by denying Russell union representation at the meeting on August 4, 1989, because the investigatory interview, in fact, never took place. In reaching this conclusion, the hearing officer noted that Russell left Wortham’s office before the meeting could begin and Wortham and Dugger then discontinued the meeting. Second, the hearing officer found that the District’s decision to terminate Russell “on the basis- of her conduct during the meeting” violated section 14(a)(3) and, derivatively, section 14(a)(1). (6 Pub. Employee Rep. (Ill.) par. 1120, at IX — 441 (Hearing Officer’s Recommended Decision).) The Board adopted the hearing officer’s findings. 7 Pub. Employee Rep. (Ill.) par. 1009.

III. Analysis

Courts of review will not disturb administrative findings and conclusions on questions of fact unless they are contrary to the manifest weight of the evidence. (Garland v. Department of Labor (1984), 104 Ill. 2d 383, 392, 472 N.E.2d 434, 437; Hardin County Education Association v. Illinois Educational Labor Relations Board (1988), 174 Ill. App. 3d 168, 178, 528 N.E.2d 737, 743.) A finding is against the manifest weight of the evidence only if an opposite conclusion is “clearly evident.” (Burnham City Hospital v. Human Rights Comm’n (1984), 126 Ill. App. 3d 999, 1003, 467 N.E.2d 635, 637; see also Lyles v. Department of Transportation (1989), 183 Ill. App. 3d 901, 908, 539 N.E.2d 833, 837.) In other words, rejecting a finding is possible only if the reviewing court can say that all reasonable and unbiased persons, acting within the limits prescribed by law and drawing all inferences in support of the finding, would agree that it is erroneous. (Tinner v. Police Board (1978), 62 Ill. App. 3d 204, 208, 378 N.E.2d 1166, 1169; Daniels v. Police Board (1976), 37 Ill. App. 3d 1018, 1023, 349 N.E.2d 504, 508.) While findings and conclusions of an administrative agency on questions of fact are considered prima facie true and correct (Ill. Rev. Stat. 1989, ch. 110, par. 3—110; Hardin, 174 Ill. App. 3d at 178, 528 N.E.2d at 743), those factual findings must still be based on evidence presented. (Crabtree v. Illinois Department of Agriculture (1989), 128 Ill. 2d 510, 518, 539 N.E.2d 1252, 1257.) After considering this record in light of the foregoing authority, we conclude that the Board’s decision is contrary to the manifest weight of the evidence.

In order to establish a prima facie case of discriminatory discharge under section 14(a)(3) of the Act, a complainant must show (1) the employee engaged in an activity protected under section 14(a)(3) of the Act; (2) the District was aware of that protected activity; and (3) the employee was discharged for engaging in that activity. (See Hardin, 174 Ill. App. 3d at 178-79, 528 N.E.2d at 743.) “Once the complainant has made this showing, the burden shifts to the employer to demonstrate by a preponderance of the evidence that the same action would have taken place even in the absence of the protected activity.” Hardin, 174 Ill. App. 3d at 179, 528 N.E.2d at 743; see also NLRB v. Transportation Management Corp. (1983), 462 U.S. 393, 400, 76 L. Ed. 2d 667, 674, 103 S. Ct. 2469, 2473 (characterizing the burden shifting as an affirmative defense for the employer).

A. The Conclusion That Complainant Established a Prima Facie Case

The hearing officer concluded there could be “no dispute” that the complainant had satisfied the first and second elements of the prima facie case. (6 Pub. Employee Rep. (Ill.) par. 1120, at IX—441 (Hearing Officer’s Recommended Decision).) In addressing the third element, the hearing officer cited to City of Burbank v. Illinois State Labor Relations Board (1989), 128 Ill. 2d 335, 538 N.E.2d 1146. We, too, quote from that case as follows:

“Where an employer is charged with an unfair labor practice because of the discharge of an employee engaged in protected activity, the charging party must first show, by a preponderance of the evidence, that the adverse employment action was ‘based in whole or in part on antiunion animus — or *** that the employee’s protected conduct was a substantial or motivating factor in the adverse action.’ (NLRB v. Transportation Management Corp. (1983), 462 U.S. 393, 401, 76 L. Ed. 2d 667, 675, 103 S. Ct. 2469, 2474.) Since motive is a question of fact, the Board may infer discriminatory motivation from either direct or circumstantial evidence, and, because motive involves a factual determination, the Board’s finding must be accepted if supported by substantial evidence. [Citation.] Antiunion motivation may reasonably be inferred from a variety of factors, such as an employer’s expressed hostility towards unionization, together with knowledge of the employee’s union activities [citation], proximity in time between the employees’ union activities and their discharge [citation], disparate treatment of employees or a pattern of conduct which targets union supporters for adverse employment action [citations], inconsistencies between the proffered reason for discharge and other actions of the employer [citation], and shifting explanations for the discharge [citations].” (City of Burbank, 128 Ill. 2d at 345-46, 538 N.E.2d at 1149-50.)

The hearing officer, after recognizing the task of evaluating the presence of this third factor, then apparently found that this element had been established. The relevant part of his decision is as follows:

“This case is complicated by the fact that there is a wealth of evidence which demonstrates that the District had decided to move Russell from her position as a Class B Secretary long before August 4, 1989. *** Dugger’s complaints about Russell’s abilities to perform as a Class B Secretary are documented as far back as February of 1989. *** For this reason I find that the District’s decision to remove Russell from her position as a Class B Secretary does not in any way violate the Illinois Educational Labor Relations Act.
The record, however, indicates that the District did not plan to both remove her from her position as a Class B Secretary and at the same time terminate her employment with the District. Instead, the record indicates that when Russell was removed from her position as a Class B Secretary the District was planning to offer her any one of a number of other jobs that Wortham and Ryon felt she was qualified to hold. The result of the District’s adverse action, then, is not Russell’s loss of her position as a Class B Secretary because this was not improper. The termination of Russell’s employment by the District in any capacity, her loss of the opportunity to select another position that Wortham and Ryon felt she was qualified to hold is the result of the District’s adverse action. The question that remains to be answered is whether or not this adverse employment action would have taken place had Clarice Russell not engaged in protected activity on the afternoon of August 4, 1989.” (6 Pub. Employee Rep. (Ill.) par. 1120, at IX—441 (Hearing Officer’s Recommended Decision).)

Somewhere in this section of the hearing officer’s decision is his conclusion that the District fired Russell because she engaged in union activity, presumably by asserting the right to have a union representative present at the meeting. We must assume that the hearing officer so concluded because he went on to address the District’s affirmative defense.

B. The District’s Affirmative Defense

In finding that the District had not carried its burden with regard to the affirmative defense, the hearing officer made the following findings:

“The District’s allegation that Russell’s behavior in Wortham’s office on August 4, 1989 is part of a continued pattern of abusive behavior directed at District employees is a mischaracterization of the incident. Russell’s behavior on August 4, 1989, was qualitatively different than the ‘abusive’ behavior the District had previously cited. First of all I do not find her reaction to be in any way improper. Additionally, the situation which prompted Russell’s reaction on August 4, 1989 was different than the situations in which Russell had allegedly acted improperly against other District Employees. The behavior Russell exhibited prior to August 4, 1989 was prompted by on-the-job activities that necessitated her interacting with other District Employees. Russell’s behavior on August 4, 1989, however, was prompted by a meeting with administrators who were making evaluative comments about her skills and competencies as a District employee. Russell’s reaction was a rather benign attempt to defend herself. Had Russell engaged in the sort of exchange she had on August 4 with Wortham and Dugger at a different time with another District employee, and had that exchange been witnessed by Wortham (or Dugger) I do not believe she would have been disciplined. The difference on August 4 was Russell’s engaging in protected activity.” (6 Pub. Employee Rep. (Ill.) par. 1120, at IX—442 (Hearing Officer’s Recommended Decision).)

However, the hearing officer added, in a footnote, the following observation:

“I do not doubt that Russell had problems interacting with other District Employees. Absent Wortham’s testimony that prior to the August 4, 1989 meeting Russell had an option to transfer I could find no violation of the Act if the District had terminated Russell from employment with the District. But the unmistakable fact is that Russell engaged in protected activity on August 4, 1989 and the transfer option disappeared. Conduct of this nature violates the [A]ct.” 6 Pub. Employee Rep. (Ill.) par. 1120, at IX—443 n.7 (Hearing Officer’s Recommended Decision).

C. Review of the Hearing Officer’s Decision

A review of the record reveals that the conclusion of the hearing officer, adopted by the Board, is contrary to the manifest weight of the evidence. As stated earlier, the law requires Russell to show that the District fired her for engaging in protected activity. Without referring to any one of the specific factors set forth in City of Burbank, the hearing officer apparently concluded that Russell had proved antiunion motivation on the part of the District because, after attempts were made to find her another job within the school district, the District took the transfer option away from her after the August 4 meeting. Apparently, the hearing officer believed that Russell was entitled to a job — any job — somewhere in the school district, and that the District acted improperly by taking this option away from Russell by means of termination.

Just because the District had previously made attempts to accommodate Russell by finding other positions within the school district does not forever preclude the District from firing her because of her unprofessional conduct. We reject the notion that an employer is prohibited from terminating an employee solely because it has tolerated unprofessional conduct in the past but subsequently decides to tolerate repeated instances of it no further. See Hardin, 174 Ill. App. 3d at 186, 528 N.E.2d at 748 (finding that the district had “not extinguished] its right to discipline an employee whose performance continues to deteriorate”).

Other than the proximity between Russell’s abrupt departure from Wortham’s office and her notice from Dugger, not a scintilla of evidence was produced at the hearing which supports the hearing officer’s finding that the District fired Russell for engaging in protected activity.

This record contains no evidence that the District had any antiutiion animus or had expressed any hostility towards the union. The record further fails to show any knowledge by the District of Russell’s union activities (other than her requests to have a union representative present when her superiors were evaluating her job performance), any disparate treatment of employees, any pattern of conduct which targeted union supporters, or any inconsistent or shifting reasons for discharge. See City of Burbank, 128 Ill. 2d at 345-46, 538 N.E.2d at 1149-50.

In our view, the hearing officer’s conclusion that Russell’s behavior at the August 4 meeting was somehow different from other instances of misbehavior or mischaracterized by the District is groundless. The February 24 memo written by Dugger specifically states as follows:

“In situations requiring interaction with others, Clarice often creates the impression that she is being confrontive. In addition to my own experience in this regard, I have received complaints from Mr. Hoffman, Mr. England, several teachers of driver education, personnel from S&K Cheverolet [sic] where we get some of our driver education cars, and personnel within the administration building.”

Again, the June 22 Dugger memo relates other abusive personality confrontations Russell had with two other district employees and an outside consultant. Finally, the testimony of Dugger and Wortham is completely contrary to the hearing officer’s findings. Dugger and Wortham are themselves District employees who were verbally abused and challenged by Russell.

The hearing officer’s findings suggest that Russell’s previous, confrontive behavior was somehow different than her behavior towards Dugger and Wortham. In all instances, however, Russell exhibited confrontive, abusive behavior on the job while dealing with other District employees, be they fellow office workers or the executive director of personnel. The hearing officer’s conclusion that Russell’s behavior was “benign” (which, according to the American Heritage Dictionary means “[o]f a kind disposition,” “[manifesting gentleness and mildness” (American Heritage Dictionary 123 (1975)) simply does not square with the evidence.

Finally, the hearing officer’s conclusion that Russell would not have been disciplined had she engaged in similar verbal exchanges with other District employees is contradicted by memos that were placed in Russell’s employment file for precisely similar behavior. The evidence in this record is directly and completely contrary to the hearing officer’s findings; accordingly, his findings, adopted by the Board, are against the manifest weight of the evidence.

Not only is the finding that Russell was discharged for engaging in union activity contrary to the manifest weight of the evidence, it is also clear that if this were not so, the District demonstrated by a preponderance of the evidence that Russell would have been terminated even in the absence of the protected activity. (See Hardin, 174 Ill. App. 3d at 182-86, 528 N.E.2d at 745-48.) In Hardin, this court affirmed the Board’s conclusion that the school district had proven its affirmative defense by a preponderance of the evidence because the school district showed a history of poor performance communicated to the complainant in evaluation meetings, while the union could not show disparate treatment. (Hardin, 174 Ill. App. 3d at 185-86, 528 N.E.2d at 747-48.) Overall, the evidence presented by the district in Hardin was uncontroverted; we conclude the same is true here.

The uncontroverted evidence of Wortham was that Russell was terminated because of Russell’s unprofessional conduct towards her and Dugger. Russell’s conduct and behavior at the August 4 meeting provided the basis for her termination. Wortham testified as follows:

“Q. [Mr. Cannell, attorney for District:] What impact did her demeanor and her words on that day have upon her decision not to place her in another job?
A. As before that date I just, I — until that date I had just gone on reports of her behavior, I had never seen it in action, and I got to see the, what I had been told about in action that day. I had never seen Mrs. Russell upset before that time or I, it — it had only been reported to me of incidents that had happened by way of Dr. Dugger, and this day I was able to see it for myself what he was talking about.”

Wortham was finally able to see for herself the behavior complained of in Dugger’s previous memos. In addition, Russell’s conduct at the August 4 meeting evidenced an inappropriate pattern of behavior that was not isolated to particular contexts or settings.

Similarly, Dugger testified that he decided to terminate Russell from her position because of her behavior both in the past and at the August 4 meeting. The mere fact that Russell had requested union representation had nothing to do with Dugger’s decision. Dugger testified as follows:

“Q. [Ms. Coleman-Romeo, attorney for complainant:] Isn’t it true that you considered her actions of walking out of the meeting to be insubordination?
A. Not necessarily walking out of the meeting. I — I thought that the manner that she did it was completely inappropriate; but I was used to that. Frankly, I found that Clarice anytime that she was agitated or I gave her something to do that she didn’t like, it was almost as if well, I’ll do it but I want you to know I don’t like it. I was very uncomfortable working with Clarice because she was, to me had a confrontive kind of behavior towards me and I didn’t like that and I didn’t like it toward other people particularly.”

The testimony of Russell, Dugger, and Wortham concerning the August 4 meeting shows that Russell interrupted twice, stood up, and stormed out of the room to get her union representative. The hearing officer put appropriate emphasis on the testimony relating to Russell’s conduct and behavior beyond the mere choreography of the August 4 meeting and concluded that “[ajbsent Wortham’s testimony that prior to the August 4, 1989 meeting Russell had an option to transfer I could find no violation of the Act if the District had terminated Russell from employment with the District.” (Emphasis added.) However, Russell’s stated desire at the August 4 meeting to get her union representative is not a magical incantation, transforming by itself a record devoid of antiunion animus into one which supports a finding of a violation of the Act. The record fully supports the District’s affirmative defense; the hearing officer’s decision to the contrary was against the manifest weight of the evidence, and so was the Board’s decision adopting it.

Reversed.

PRESIDING JUSTICE LUND,

specially concurring:

An employee’s union involvement must never be a factor in employee discipline considerations. When employee discipline appears to have been affected by union involvement, the discipline or termination should be suspect. In the present case, however, the findings of the hearing officer and the determination of the Board are not justified by the evidence. In my opinion, the danger of a lack of objectivity is present. It is not the function of the Board to provide wholesale job security.

I disagree with Justice Green’s statement that the evidence is not “quite as one-sided” as the majority opinion suggests. Russell’s request for union representation was an insignificant part of the overall problem. The evidence establishes the District administrative personnel were making substantial efforts to provide alternative employment for an employee unable or unwilling to perform her assigned duties in an acceptable fashion. Russell’s abusive responses to this assistance were clearly the factor triggering the termination. Our reversal is called for by the record.

JUSTICE GREEN,

specially concurring:

I concur in the decision to reverse the order of the Board as contrary to the manifest weight of the evidence. However, I do not interpret the evidence to be quite as one-sided as does the majority. I write this special concurrence to explain my view of the evidence.

The hearing officer’s decision involved several steps. First, he determined that prior to the August 4, 1989, meeting, Russell’s supervising authorities had intended to merely change her job rather than to fire her. This was admitted by Dugger’s testimony. The hearing officer then concluded that Russell’s conduct at the August 4 meeting prior to her request for union representation was not as insubordinate as the Board’s witnesses indicated. The hearing officer took into consideration that many .people are not likely to be calm when they perceive themselves threatened with loss of a desirable position.

We must give some deference to the hearing officer’s interpretation of the witnesses whom he saw and heard. However, the crucial aspect of this evidence is not how reasonable or unreasonable Russell’s conduct was but rather the effect it had upon the sentiment of Dugger and Wortham in regard to Russell’s continued employment. The hearing officer reasoned that because Russell’s response was one which many would be likely to make, the determinative factor in the ultimate decision to fire must have been Russell’s request for union representation.

Wortham and Dugger would have been well advised to have returned to the meeting when Russell and her union representative returned. Because of (1) the proximity between the August 4 meeting and the firing (see City of Burbank, 128 Ill. 2d at 345-46, 538 N.E.2d at 1149-50), and (2) the fact that Wortham and Dugger did not return, I do not find the decision of the Board, inherent in its order, that Russell’s request for union representation had a causal relationship to the firing was contrary to the manifest weight of the evidence. However, the evidence is overwhelming that the accelerating dissatisfaction with Russell’s attitude, conduct and work, and the impossibility of finding any solution short of firing was the determinative factor resulting in her firing.

The District had the burden of proving that the firing would have occurred regardless of whether Russell had requested support by the presence of her representative. However, in view of the strength of the evidence, the Board’s rejection of that defense was contrary to the manifest weight of the evidence.


author: JUSTICE STEIGMANN JUSTICE GREEN, JUSTICE McCULLOUGH,

text:
      In re M.D., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. M.D., a Minor, Respondent-Appellant).
    Fourth District
    No. 4—91—0159
    Opinion filed October 21, 1991.
    GREEN, J., specially concurring.
    McCULLOUGH, J., dissenting.

      Robert G. Kirchner, of Lerner & Kirchner, of Champaign, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In In re V.L.F. (1988), 174 Ill. App. 3d 930, 937-38, 529 N.E.2d 312, 316-17, this court held that a period of detention, preceded by a remission hearing, could be imposed as a condition of probation in a juvenile delinquency case. This appeal presents the question of whether a court may impose multiple periods of detention, preceded by remission hearings, as a condition of probation in a juvenile delinquency case. We answer that question yes.

The procedural history of this case is as follows. On April 3, 1990, the State filed a two-count delinquency petition alleging that M.D., the 13-year-old respondent minor, committed the offenses of burglary and criminal damage to property. On May 29, 1990, while proceedings on this initial petition were pending, the State filed a supplemental juvenile delinquency petition charging unlawful use of weapons. After a detention hearing, the court ordered respondent detained and allotted the case for an adjudicatory hearing on June 4,1990.

On June 4, 1990, respondent admitted and stipulated to the original charge of criminal damage to property, and the two other pending charges were dismissed. The court ordered respondent released from the Champaign County youth detention center and allotted a dispositional hearing for July 10, 1990. The dispositional hearing scheduled for that day was vacated and reallotted because of the recommendation of the Champaign County court services department that the Illinois Department of Children and Family Services (DCFS) be requested by the court to prepare a home and background investigation regarding respondent and his family.

On August 15, 1990, the court held the dispositional hearing, formally adjudicated respondent a ward of the court, and placed him on probation subject to certain conditions. One of those conditions was the requirement that respondent serve 22 days in the Champaign County youth detention center, beginning with a three-day increment commencing at 4:15 p.m. on September 7, 1990 (Friday), and ending on 4:15 p.m. on September 9, 1990 (Sunday). The court further directed that it would conduct a remission hearing regarding that three-day period at 4:15 p.m. on September 7, 1990.

At the dispositional hearing, the probation officer for the intensive juvenile probation program recommended that the respondent minor, as a special probationary condition, “serve delayed periods of detention, as the court would direct.” The DCFS home and background report quoted respondent as saying he did not want any return visits to the Champaign County youth detention center. With this information (and a good deal more) before it, the trial court at the dispositional hearing explained the reason for its imposition of the 22-day period of detention (broken into three-day increments) as follows:

“I think that it is *** in your best interests that [I impose different increments of detention] or else I’d be sentencing you to 22 days right now straight time in the detention center, but I don’t think that’s good for you. I think that it is better for you to be able to work that off and not have to do any of those days in the detention center, and I’m going to give you that opportunity to do that and show me that you can follow the law and show me that you can follow my orders and never have to go to the detention center.
So, as opposed to what’s being requested, because in lieu of sending you to the Department of Corrections, I am going to order a period of detention that is delayed. I’m going to order it a few days at a time to give you the chance never to have to step foot in the detention center again as opposed to having to go for 22 days.
* * *
And, finally, the Respondent Minor is ordered to serve a period of 22 days in the Champaign County Youth Detention Center, the first three days of which will be served beginning September 7, 1990, at 4:15 p.m., for the Respondent Minor to be released September 9, 1990, at 4:15 p.m. Remission hearing is set for September 7,1990, 4:15 p.m. in Courtroom J.
* * *
Finally, as I told you, the first three days of detention will begin Friday afternoon, September 7th. It’s up to you as to whether you go there on that day or not. I am giving you the keys to the detention center. If, in the next few weeks, you abide by all the terms of your probation, if you start school, if you don’t have any problems in school, then when you come here on September 7th, I will say, ‘You do not have to go to the detention center for those three days. Those three days are gone. You will not have to serve them.’ However, if you cannot abide by the things you are supposed to do, then you will go for those three days. ***
* * *
When you are back here on September 7th, I will be setting another few days of detention for you of the 22 that you have to serve.”

On September 7, 1990, the court conducted a hearing and remitted the three-day period of detention set to begin that day. The court also entered a new written detention order for a three-day period of detention, beginning October 9, 1990, at 10:30 a.m., with a remission hearing scheduled for that same date and time.

On October 9, 1990, the court again remitted the detention order and entered a new written order for detention, beginning on November 16, 1990, at 3:30 p.m., with a remission hearing again to be held on that same date and time.

The court followed the same procedure on November 16, 1990, and on January 3, 1991. On that latter date, the court entered a written detention order for three days, beginning February 26, 1991, at 9:20 a.m., with a remission hearing again to be held on that same date and time.

At the remission hearing conducted on February 26, 1991, the court received reports regarding respondent and, based thereon, declined to remit the three-day increment of detention respondent was then supposed to begin. Respondent appeals from the court’s February 26, 1991, order.

On appeal, respondent does not argue that the trial court abused its discretion by not entering an order of remission on February 26, 1991, nor does respondent argue that a single order of detention, preceded by a remission hearing, would have been improper. Instead, respondent’s sole argument on appeal is that the trial court may not impose multiple periods of detention because section 5—23(1)(a)(5) of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1989, ch. 37, par. 805—23(1)(a)(5)) prohibits such an order. That section reads as follows:

“Kinds of dispositional orders. (1) The following kinds of orders of disposition may be made in respect of wards of the court: (a) A minor found to be a delinquent *** may be *** (5) placed in detention for a period not to exceed 30 days, either as the exclusive order of disposition or, where appropriate, in conjunction with any other order of disposition issued under this paragraph ***.” (Ill. Rev. Stat. 1989, ch. 37, par. 805—23(1)(a)(5).)

Respondent argues on appeal that “[n]o statutory provisions under the Juvenile Court Act provide for, or permit the Court as part of a dispositional Order, to enter multiple periods of detention, or to impose periodic detention.” We are unpersuaded.

We hold that the phrase “detention for a period not to exceed 30 days” was meant by the legislature simply to serve as a bar to a court’s ordering a juvenile delinquent to serve more than 30 days in detention. We find nothing in section 5—23 of the Act (or anywhere else in the Act) which suggests in any way that the legislature intended to bar the imposition of multiple periods of detention, preceded by remission hearings, the sum total of which do not exceed 30 days.

Because the primary purpose of juvenile delinquency proceedings is to correct and rehabilitate juvenile offenders (In re Armour (1974), 59 Ill. 2d 102, 104, 319 N.E.2d 496, 498; In re M.D.B. (1984), 121 Ill. App. 3d 77, 83, 458 N.E.2d 1380, 1385), the Act should be construed in a fashion that would authorize the reasonable exercise of the juvenile court’s discretion to achieve those goals, such as the court’s orders in the present case. A series of short, intermittent periods of detention, all subject to remission for good behavior, can be a very useful tool in obtaining compliance with the terms of probation imposed upon a juvenile delinquent. Further, a court could conclude that imposition of such intermittent periods of detention with the possibility of remission might be less disruptive of a juvenile’s schooling or his other worthwhile activities. This might especially be true when, as here, a youthful delinquent has already served a period of detention and the court is hopeful that the juvenile’s experience will deter him from behavior which would cause him ever to be detained again.

In the present case, the trial court determined that a 22-day period of detention would be appropriate but decided to break it up into a series of three-day increments. The results of that decision were orders of remission vacating the three-day increments that were to begin on September 7, October 9, and November 16, 1990, and January 3, 1991. Thus, in the very case before us, respondent, by his behavior, earned remission of 12 of the 22 days that he was ordered to serve in detention. Regrettably, the behavior of respondent that the court found worthy of earlier remission orders did not continue so as to warrant a remission order at the February 26, 1991, hearing.

It is hard for us to understand how respondent in the present case would benefit if the trial court initially could not have broken its 22-day order of detention into three-day increments as it did. Similarly, we fail to see how such a crabbed interpretation of the Act would be consistent either with its purposes or with the vast discretion the legislature has granted to juvenile courts when placing juvenile delinquents, such as this respondent, on probation. In this regard, we note that section 5—24 of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 805—24) sets forth 23 separate conditions that the trial court may impose as conditions of juvenile probation. Furthermore, and just in case the legislature might have overlooked a condition that some juvenile court in a given case might deem appropriate and desirable, the legislature also provided that (in addition to the 23 specific conditions enumerated) the court could order a juvenile delinquent to “comply with other conditions as may be ordered by the court.” Ill. Rev. Stat. 1989, ch. 37, par. 805-24(2)(t).

We also note that section 5—23(1)(a)(5) of the Act, which authorizes placement of a delinquent in detention for a period not to exceed 30 days, speaks of that order as being “where appropriate, in conjunction with any other order of disposition issued under this paragraph.” (Ill. Rev. Stat. 1989, ch. 37, par. 805—23(1)(a)(5).) One of the “other order[s] of disposition” authorized by that section is placing a juvenile delinquent on probation, the action taken by the court in the present case. See Ill. Rev. Stat. 1989, ch. 37, par. 805—23(1)(a)(1).

Before concluding, we wish to point out that we believe the better practice in cases of this kind would be for the court at the original dispositional hearing to set forth all of the dates and times for all of the three-day increments that a respondent is to serve in a detention facility and to provide, as was done here, that remission hearings shall take place immediately prior to the commencement of any detention. This procedure would provide a respondent with additional notice and certainty. Because such orders would still be modifiable under section 5—25(5) of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 805—25(5)), we see no reason not to specify dates to begin with. See People v. Tipton (1981), 88 Ill. 2d 256, 261-62, 430 N.E.2d 1023, 1026.

For the reasons stated, the judgment of the circuit court of Champaign County is affirmed.

Affirmed.

JUSTICE GREEN,

specially concurring:

I concur in the decision to affirm the order on appeal.

The question of whether a court may impose multiple periods of detention, preceded by remission hearings, as a condition of probation in a juvenile case is a close one. However, for the reasons Justice Steigmann has stated, I agree such multiple periods may be imposed. I question the propriety of such an order when it does not also set forth the times when such incarceration is to be served. However, I do not consider that uncertainty is of the same quality as the uncertainty created by dispositional orders which fail to set forth the length of a probation period, thus rendering the order void. (In re T.E. (1981), 85 Ill. 2d 326, 423 N.E.2d 910.) The time for the performance of every condition of probation need not be set out in a probation order to give the court jurisdiction to enter the order.

Here, the circuit court had jurisdiction to enter the August 15, 1990, dispositional order. That order was appealable because of its finality. As no timely appeal was taken and no post-trial motion was made, the order became res judicata 30 days after its entry. (See In re T.E. (1981), 85 Ill. 2d 326, 423 N.E.2d 910; People v. Stueve (1977), 66 Ill. 2d 174, 361 N.E.2d 579.) Any error in that order is not now subject to review on direct appeal. This appeal is taken from the February 26, 1991, order which was, in effect, a modification of the terms of probation. (Ill. Rev. Stat. 1989, ch. 37, par. 805—25(5).) That order did not lack specificity as it fully set forth the date the imprisonment was to be served.

JUSTICE McCULLOUGH,

dissenting:

The entry of the detention order August 15, 1990, was error. The trial court at the dispositional hearing ordered the respondent to “serve a period of 22 days” in the youth detention center and set the first three days to be served and a contemporaneous remission hearing. The trial court did not order the respondent to serve the balance of the 19 days at a specific time or times. The respondent was told that when he next appeared in court, “I will be setting another few days of detention for you of the 22 that you have to serve.”

Waiver could well be the appropriate disposition as to defendant’s claim. He did not make timely appeal of the August 15, 1990, order. As stated in In re T.E. (1981), 85 Ill. 2d 326, 333, 423 N.E.2d 910, 913:

“The general rule is that where no direct appeal was taken from the original order of probation and the time for appeal had expired, a court will be later precluded from collaterally reviewing the propriety of that initial order in an appeal from the revocation of that probation.”

If waiver is not appropriate, the trial court’s order is error. The Act does not permit the trial court to impose multiple periods of detention. Additionally, the trial court’s order for detention was not definite and certain.

The trial court’s order is objectionable; one, it circumvents the possible revocation of probation safeguards provided to respondent per section 5 — 25; second, the order for detention is not definite and certain. The respondent has no idea when the detention will be required. The only direction by the trial court was the detention would be served a “few days at a time” during the 18-month period of probation.

Respondent may be “placed in detention for a period” (not periods) “not to exceed 30 days.” Ill. Rev. Stat. 1989, ch. 37, par. 805—23(1)(a)(5).

As the Tipton court stated, “the imposition of delayed confinement subject to remission could degenerate into a substitute for the revocation of probation to which statutorily incorporated due process requirements now apply.” Tipton, 88 Ill. 2d at 266, 430 N.E.2d at 1028.

The dispositional order also is not definite and certain. “A sentencing order should be so complete as to not require further action by the court or a ministerial officer to ascertain its meaning.” People v. White (1986), 146 Ill. App. 3d 998, 1003, 497 N.E.2d 888, 892.

In People v. Dennison (1948), 399 Ill. 484, 487, 78 N.E.2d 232, 233, the supreme court stated:

“It is of importance to a prisoner that the terms of his sentence should be stated with accuracy and should be so definite and certain that the time of the commencement of his imprisonment and the time of its termination can be ascertained from the words of the sentence without the necessity of construing or supplementing the same. The right to such a sentence is accorded to every prisoner.”

A minor respondent under the Act is entitled to these same rights. While there is merit to the trial court’s rationale, it is not provided for in the Act.

In summary, the trial court erred in ordering 22 days’ detention “a few days at a time.” The Code does not provide for detention “a few days at a time,” it provides for a “period not to exceed 30 days.” A respondent is entitled to know the time of the period of detention, when the dispositional order is entered.


author: JUSTICE GREEN

text:
      In re MARRIAGE OF NANCY L. HOBSON, Petitioner-Appellee, and JOHN A. HOBSON, Respondent-Appellant.
    Fourth District
    No. 4—91—0235
    Opinion filed October 21, 1991.

      Harold M. Jennings, of Jennings, Novick, Taseff, Smalley & Davis, of Bloomington, for appellant.
    Thomson & Weintraub, of Bloomington (Alan I. Weintraub, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On September 6, 1988, the circuit court of McLean County entered a bifurcated judgment dissolving the marriage of petitioner Nancy L. Hobson and respondent John A. Hobson, reserving the remaining issues for a later hearing. Then, on March 22, 1990, the circuit court entered a supplemental judgment of dissolution of marriage which essentially incorporated a stipulation entered into by the parties on January 22, 1990, resolving issues of property distribution, child custody, and child support. Respondent now appeals an order entered by the circuit court on March 4, 1991, allowing petitioner’s post-decree petition to modify the supplemental judgment. The court ordered respondent to establish a trust for the purposes of child support, to be funded by $20,000 less certain deductions owed to respondent by petitioner under the terms of their January 22, 1990, stipulation.

The court ordered the establishment of the support trust pursuant to section 503(g) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 503(g)), entitled “Disposition of property,” which provides:

“The court if necessary to protect and promote the best interests of the children may set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent child of the parties.” Ill. Rev. Stat. 1989, ch. 40, par. 503(g).

On appeal, respondent maintains the circuit court abused its discretion (1) in imposing any trust for the benefit of his children; (2) in failing to impose the manner in which the trust was to be administered or as to his rights in the corpus or residue of the trust; and (3) in any event, in imposing a trust upon property which the parties’ stipulation provided he would receive. We hold the court did not err in establishing a trust but should have prescribed the provisions of the trust in much greater detail.

The January 22, 1990, stipulation resolving issues of property distribution, child custody, and child support provided, in pertinent part: (1) petitioner should be awarded sole custody of the parties’ four adopted children; (2) respondent “shall pay to petitioner 40% of his net earnings from either his full-time employment, unemployment, or workers[’] compensation temporary payments”; (3) respondent “shall pay to petitioner the sum of $608.40 as and for arrearage on child support between August 15 and October 17th,” to be paid within five days of receipt of money owing from petitioner to respondent; (4) respondent shall maintain medical insurance for his children through his place of employment, and pay one-half of noncovered medical expenses incurred by his children; (5) respondent shall maintain a life insurance policy naming his children as beneficiaries; and (6) the marital residence shall be awarded to petitioner, who shall pay respondent $20,000, for his portion of the equity in the marital home, within 30 days of that agreement.

The stipulation further provided that petitioner shall pay respondent one-half of the balance in their joint account at the time of their separation, and within five days of receiving this money respondent shall pay petitioner $1,000 for outstanding marital debts assumed by petitioner.

The supplemental judgment of dissolution of marriage entered by the court on March 22, 1990, approved and adopted the foregoing stipulation and ordered: (1) respondent to pay as child support “a sum equal to 40% of his net take-home pay as it applies to wages, payments in lieu of wages pursuant to the Workers’ Compensation Act, and unemployment compensation”; (2) petitioner shall “withhold the sum of $1,608.40 from the lump sum payment of $20,000” referred to in the parties’ stipulation; and (3) the court “expressly retains jurisdiction of this cause for the purposes of enforcing all the terms of the supplemental judgment of dissolution of marriage, including all the terms of the stipulation.”

Subsequently, petitioner hired new counsel, and on April 6, 1990, within 30 days of the entry of the supplemental judgment, petitioner filed a petition for rule to show cause, alleging respondent had wilfully failed to pay the ordered child support. Additionally, petitioner filed a petition to vacate the supplemental judgment, a petition to modify the supplemental judgment, and a petition for “Establishment of a Section 503(g) Support Trust.”

On July 13, 1990, a hearing was held before Judge Freese, who had not entered the dissolution judgments. Apparently, there was some discussion at the hearing as to whether the court should proceed with the foregoing petitions as a “post-decretal matter,” or whether petitioner intended to use the petitions as a means to “reopen the property settlement agreement,” in which case Judge Townley, who had entered the dissolution judgments, must hear the petitions. Petitioner’s counsel argued that a petition for a section 503(g) trust can be used to modify a prior child support order, but maintained that at the present time petitioner was seeking to modify or vacate a judgment entered within 30 days. Accordingly, the parties agreed to reschedule the hearing before Judge Townley.

On December 17, 1990, a hearing was held before Judge Townley. Evidence was presented and at the conclusion of the hearing the court essentially found that a petition for a section 503(g) trust could not be used to vacate the original supplemental judgment. The court entered its order on the official record sheet, stating:

“Both parties appear with counsel for hearing on petitioner’s motion to modify and motion to establish support trust. Counsel for respondent stipulates that the provisions of the supplemental petition for dissolution provide for the respondent to pay 40% of any earned income, unemployment compensation, and temporary total benefits of workmen’s compensation as and for child support. Respondent personally confirms that interpretation and based on that petitioner requests no further relief. Hearing held on motion to establish support trust and the Court holds that since the petitioner entered into the marital settlement agreement she may not attack the same for matters which were within her knowledge at the time she entered into the agreement and that any circumstances which have arisen subsequent to the entry of the agreement which may justify the modification of the supplemental judgment must be litigated in a new petition to modify rather than a petition which is attacking the underlying basis for the original supplemental judgment. Motion is denied.”

Then, on January 4, 1991, petitioner filed another petition to modify the supplemental judgment which incorporated the previously filed petition for “Establishment of a Section 503(g) Support Trust.” The petition to modify the supplemental judgment alleged that “since the entry of the supplemental judgment, there had been a substantial change of circumstances necessitating the modification of the support provisions,” including: (1) the 40% formula for child support payments had “become unworkable and ha[d] led to support abuses”; (2) “[Respondent has provided inadequate support for the [parties’ four adopted children]”; (3) two of the parties’ children have “special needs requiring additional funding”; (4) “[Respondent ha[d] failed to apply monies available to him for the support of the children, instead giving priority to other debts, including attorney’s fees and credit cards”; (5) respondent now claims to be “either incapable to perform or unable to locate full or part-time employment and that other compensation benefits have been cut off or terminated”; (6) respondent has failed to pay his share of the children’s noncovered medical expenses; and (7) respondent has failed to maintain medical insurance for the children. The petition requested the court to establish a section 503(g) trust to be funded by the $20,000 due to respondent from petitioner and respondent’s pending workers’ compensation claim and/ or settlement.

On January 28, 1991, a hearing was held before Judge Freese on petitioner’s petition to modify the supplemental judgment and respondent’s petition for rule to show cause filed on January 10, 1991, asking that petitioner be held in contempt for her wilful refusal to tender the $20,000 she owed to respondent, with allowance for a set-off of $1,608.40. At the hearing petitioner voluntarily dismissed the petition for rule to show cause filed on April 6, 1990, against respondent which was not ruled on at the December 17, 1990, hearing. Petitioner conceded there was no evidence of respondent’s wilful contempt of the court support order since he had no income from which to pay his support obligation.

Evidence was presented by both parties, and in a written order dated March 4, 1991, the court dismissed respondent’s petition for rule to show cause and ordered the imposition of a section 503(g) support trust. The court’s order establishing the section 503(g) support trust stated, in part, as follows:

“The Court has considered the demonstrated history of the failure of Respondent to pay support, his current medical circumstances which suggests [sic] that future payments of support are uncertain, and the substantial evidence of the current medical, emotional, and physical needs of the minor children which support a finding that future and regular support is needed.
In considering Section 503(g) of the Illinois Marriage and Dissolution of Marriage Act and in considering the authority in the Court to provide child support for and on behalf of minor children in accordance with the statutory guidelines in Section 505 of the Act, this Court finds that the establishment of a trust in accordance with Section 503(g) is appropriate in light of the evidence presented herein.”

The court reserved ruling on additional funding for the trust by contribution from any workers’ compensation monies. This is the order which is the subject of this appeal.

The supreme court has passed upon the propriety of an order creating a section 503(d) trust only once. In In re Marriage of Atkinson (1980), 82 Ill. App. 3d 617, 402 N.E.2d 831, parties to a divorce proceeding were shown to both be devoted parents of two young daughters whose custody was awarded to the mother. The father had in excess of $1 million worth of nonmarital assets with a reasonable income as a young lawyer and the children were beneficiaries of $70,000 of insurance on the father’s life. The trial court ordered the father to pay the mother $261 per week for child support. The court ordered the father to set up a $100,000 trust with income to accumulate and with distribution to be made to the children when the youngest became 23 years old. The father’s assets had been reduced somewhat during the marriage as he supported himself, the mother, and later the children while he and the mother were both in college and in law school. The appellate court found no need existed for the establishment of the trust and reversed that portion of the decree. The supreme court affirmed, stating:

“We concur in the appellate court’s assessment that the imposition of a section 503(d) trust is ‘inappropriate in the absence of evidence showing some need to protect the interests of the children’ (82 Ill. App. 3d 617, 627[, 402 N.E.2d 831, 838]) and therefore inappropriately applied to a responsible parent.” Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 179, 429 N.E.2d 465, 467.

Section 503(d) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 503(d)), considered by the supreme court in Atkinson was the then counterpart of the now section 503(g) of the Act but was not prefaced by the requirement that the trust be necessary “to protect and promote the best interests of the children” (Ill. Rev. Stat. 1989, ch. 40, par. 503(g)). Rather, the former provision stated that the “court may protect and promote the best interests of the children” by providing for a trust. Ill. Rev. Stat. 1977, ch. 40, par. 503(d).

In In re Marriage of Harsy (1990), 193 Ill. App. 3d 415, 549 N.E.2d 995, the circuit court allowed petitioner’s post-judgment petition requesting that respondent be ordered to establish two section 503(g) trust funds for his minor children for the purposes of paying their future college expenses. The appellate court affirmed the imposition of the trust, but modified the portion of the circuit court’s order directing the remainder of the trust be distributed to the children upon termination of the trust.

In Harsy, unlike the instant case, evidence was presented showing that the respondent was unwilling to pay his children’s future college expenses and had been held in contempt for failing to pay child support. However, in upholding the section 503(g) trust, the appellate court considered it relevant that the respondent’s opportunity for future stable income had been greatly reduced due to a work-related accident, and it was unlikely that the funds for the children’s future education would be available when needed. The court also noted that the respondent did not believe he would be financially able to meet his child-support obligations.

Recently, the Second District Appellate Court had occasion to pass upon the requirements for a section 503(g) trust in In re Marriage of Vucic (1991), 216 Ill. App. 3d 692, 576 N.E.2d 406. There, a dissolution decree established such a trust for the minor children. The father had assets of some substance but was imprisoned. The court reversed, except as to the dissolution, and remanded with directions to reconsider, among other matters, the question of the trust. The appellate court concluded that evidence of the father’s incarceration might be sufficient to show his inability to pay but no such findings had been made. The appellate court also held that appointing the mother the trustee of the trust which had assets some of which might be returned to the father upon termination of the trust was error because of her conflict of interest. Thus, in Vucic the necessity requirement of section 503(g) was met by the likely inability of the father to make the payments without a showing of unwillingness.

In In re Marriage of Amato (1980), 80 Ill. App. 3d 395, 399 N.E.2d 1018, the award of property in a dissolution proceeding was reversed and the cause remanded. The statutory provision for a trust to secure support payments then in force was that applicable at the time of Atkinson. At the time of the decree the father was 70 and the mother was 44 and the parties had minor children. The father was unemployed and receiving social security but had large race track and real estate holdings. The appellate court recommended that on remand the circuit court might consider requiring setting up a trust for the children’s support. In Amato, unwillingness of the parent to pay support was not considered a necessary element for requiring a trust.

The supreme court in Atkinson spoke first of the need to protect children as the criterion for imposition of the trust in question. The language in regard to the statutory trust provision being “inappropriately applied to a responsible parent” (Atkinson, 87 Ill. 2d at 179, 429 N.E.2d at 467) can well be taken to indicate that the order for a trust was inappropriate when imposed on that responsible parent. In any event, language in In re Marriage of Alltop (1990), 203 Ill. App. 3d 606, 617-18, 561 N.E.2d 394, 401-02, and Harsy (193 Ill. App. 3d at 422, 549 N.E.2d at 999) has indicated that necessity may be shown by either unwillingness or inability of a parent charged with child support to make payment. Both Vucic and Amato have held that inability to pay is a sufficient ground. For reasons we will explain, we hold the record here showed necessity through the inability of the respondent to pay.

In the instant case, at the January 28, 1991, hearing on the petition to modify the supplemental judgment, petitioner testified as follows: (1) she has been a kindergarten teacher for 23 years; (2) the parties adopted four children during their marriage; (3) two of the children have learning disabilities and one of them was presently seeing a psychiatrist and taking antidepressants; (4) she was under the belief that the parties’ stipulation provided that respondent would pay her $1,608.40, for child support arrearages and reimbursement for marital debts when she paid him one-half of the amount of their joint savings account; (5) she did not know, at the time of the entry of the supplemental judgment, that her attorney agreed that the $1,608.40 would be credited against the $20,000 she owed respondent; (6) she paid him one-half of the amount in their joint savings account and respondent never paid her the $1,608.40; (7) she had not yet paid respondent the $20,000; and (8) she placed the $20,000 she borrowed from her mother to pay respondent in her checking account, along with her own paychecks, and spent approximately $8,000 for living expenses.

Petitioner further testified that she has only received two child support payments from respondent since they entered into their January 22, 1990, stipulation. She received a check for $523.75 sometime in June 1990, and another check for $524 shortly after. Petitioner testified the parties’ oldest son planned to go to college soon, which would cost approximately $6,830 per year. In addition, another child needed orthodontic work done.

Respondent testified as follows: (1) he injured himself working for Rowe Construction in June 1989; (2) because of the injury he was off work until September 1, 1989; (3) he was fired from Rowe sometime in October 1989; (4) he believed he was fired from Rowe because he filed a workers’ compensation claim, not because of an alcohol problem; (5) he worked for Warning Lights for three days in October 1989; (6) he did not work again until June 1990, when he worked four days; (7) he has not worked since June 1990; (8) he was on public aid and received food stamps; (9) he borrowed money from his brother in order to pay his expenses; (10) he is unable to work because he has arthritis in both knees, a blood clot in his left leg, arthritis in his back and left shoulder; (11) his prospects for future employment are “very, very, slight”; and (12) at the time he entered into the stipulation with petitioner he did not realize he would not be able to work.

Respondent also testified that he had not searched for nonphysical employment, and the last time he looked for a job was in June 1990. Respondent stated he paid all of his share of the parties’ joint savings account to his attorney for legal fees. In addition, he stated he had tentative plans to take one of his sons to Jamaica when he received his workers’ compensation settlement. Respondent claimed he did not wilfully withhold child support, he just does not have any money.

Here, respondent had made only two payments during the nine-month period between the supplemental decree approving the settlement and the hearing on the petition to modify. This was in conformity to the decree for child support because the payments did constitute 40% of his income but they were totally inadequate to support the children. The $20,000 fund is the only reasonably certain source of support payments. The respondent’s financial picture is partially contingent upon settlement by him of a workers’ compensation claim and a possible claim for retaliatory discharge. His opportunities for employment are clearly impaired and also at least partially contingent upon his diligence in seeking work. Using the trust fund as a source of child support and giving respondent the maximum incentive to handle the questions of settlement of claims and further work on a basis where the benefits will all be his is reasonable. To condition the chances of the child support being paid upon circumstances which deter respondent’s incentive to realize income is counter to the best interests of the children and creates a necessity for the trust.

Section 503(g) of the Act is an added tool available to courts in dissolution proceedings including those where, as here, modification is sought. (Harsy, 193 Ill. App. 3d 415, 549 N.E.2d 995; In re Marriage of Rochford, (1980), 91 Ill. App. 3d 769, 414 N.E.2d 1096.) A sufficient necessity existed here to permit the circuit court, in its discretion, to order the creation of a trust. However, the terms of the trust were not described with sufficient particularity. The terms were merely stated in these words:

“The Court further finds that a trust ought to be established through a banking institution with trust powers and that a regular and on-going accounting of any expenditures for the support of the minor children and expenditures for the junior or senior high school education of the minor children ought to be maintained. Further, Petitioner ought to be allowed to seek reimbursement from the trust for Respondent’s share of the minor children’s non-insured medical or dental expense and an accounting of that reimbursement ought to be maintained.”

First, the amount of support to be paid must be redetermined. Under the existing decree that amount is stated to be 40% of respondent’s income. The petition to modify alleges this has proved to be unworkable. In In re Marriage of Wassom (1988), 165 Ill. App. 3d 1076, 519 N.E.2d 1147, this court held that section 505(a)(5) of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 505(a)(5)) requires child support to be stated in dollar amounts. That provision is still in force (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(5)). In any event, the 40% provision is unworkable here and has created the situation requiring the trust. A substantial change in circumstances has occurred. On remand, the court shall determine a dollar amount of child support and require any trustee appointed to make regular payments from the fund. The payments need not be limited to income but the court should consider the need for the fund to continue for an extended period in finding the amount of child support.

We recognize the expenses for a trust, funded only by $20,000, When periodic payments are required is high. The court shall name a trustee who shall not be the petitioner. If a proper individual can be found, the court may name an individual trustee but, if the court finds it more efficient or appropriate to name an authorized corporate trustee, it may do so. Reasonable provisions shall be made for payment of the children’s reasonable noninsured medical or dental expenses, and for accounting. The order must also provide for termination of the trust upon emancipation of the children and for payment of any residue to the respondent, his heirs, personal representative, or assignees. However, reasonable provisions may be made for college expenses for the children.

Respondent’s final argument is that section 502(b) of the Act, regarding written or oral settlement agreements, requires the court to give effect to an agreement on the distribution of property, unless the court finds the agreement unconscionable. Here, the court did not find the parties’ stipulation unconscionable; therefore, respondent claims the court cannot negate the parties’ agreement and impress respondent’s $20,000 in a support trust. Clearly, section 502(b) of the Act does state that the “terms of the agreement, except those providing for the support, custody *** are binding upon the court unless it finds *** that the agreement is unconscionable.” (Ill. Rev. Stat. 1989, ch. 40, par. 502(b).) Nonetheless, the court here did not alter the parties’ agreement that petitioner shall pay respondent $20,000 for his share of the equity in the marital home. Rather, the court ordered that respondent’s $20,000 be put in a trust for the benefit of his children. The petitioner agrees that because of setoffs which we have explained, the amount owed by her to respondent pursuant to the property settlement is less than $20,000. However, petitioner has agreed that if a trust fund for support payments is approved and ordered, she will fund it with the full sum of $20,000 in satisfaction of her responsibility to make payment to respondent.

Accordingly, we vacate the judgment on the petition to modify which is on appeal and remand the cause to the circuit court of McLean County with directions to modify the support order previously entered and to proceed within its discretion and in conformity with this opinion. That court may hold such further hearings, with or without further evidence being taken, as it deems appropriate.

Judgment vacated and cause remanded with directions.

LUND, P.J., and STEIGMANN, J., concur.