author: JUSTICE DUNN

text:
      In re ESTATE OF JOHN H. MILLER, Deceased (John L. Miller, Plaintiff-Appellant, v. Charles J. Miller, Defendant-Appellee).
    Second District
    No. 2—88—1264
    Opinion filed October 2, 1989.

      Richard T. Wimmer, of Klein, Thorpe & Jenkins, Ltd., of Chicago (J. Scott Perry, of Downers Grove, and David A. Izzo, of counsel), for appellant.
    William J. Connell, of Elmwood Park, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, John L. Miller, filed a petition to contest the will of his father, John H. Miller, that was admitted to probate. Decedent’s other son, Charles Miller, defendant, is executor. Plaintiff alleged (1) decedent was not of sound mind and memory when he signed the will; and (2) defendant asserted undue influence over decedent. Plaintiff’s motion for a directed verdict at the close of the evidence was denied. The jury found that the will was valid, and plaintiff’s motion for judgment notwithstanding the verdict or a new trial was denied.

On appeal, plaintiff raises essentially three issues: (1) whether the defendant was required under a will-contest proceeding to prove that decedent was of sound mind and memory when he signed the will; (2) whether the trial court erred in ruling that a tape recording consisting of telephone answering machine messages left by decedent was inadmissible under the Dead Man’s Act (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 201); and (3) whether the jury’s verdict should be reversed because it is against the manifest weight of the evidence. We affirm.

At trial, the parties stipulated that a copy of decedent’s will dated June 6, 1985, was a true and accurate copy of the last will and testament of decedent. The will left decedent’s entire estate to his son, Charles, and specifically excluded plaintiff from receiving any of the estate. The will was admitted into evidence along with an attached witnesses’ affidavit.

The testimony of the witnesses is summarized as follows.

Plaintiff testified that in October 1984 his father called him and left two messages on his answering machine. Up until this time he spoke with his father a couple times a year. After the phone messages in October, he spoke with his father every weekend and holidays. On April 20, 1985, he left his home in Florida to visit his father in Illinois. His father, 87 at this time, appeared weak and tired. He was forgetful and could not carry on a conversation. He had a lesion on his nose from cancer. In May 1985, plaintiff visited his father again to take him to the hospital for an operation on his nose. His father, however, refused to go to the hospital. On May 5, 1985, his father told a police officer that plaintiff had tried to kidnap him. Plaintiff said he had not tried to kidnap his father. A week later, his father called and said that his son Charles was trying to poison him by sprinkling powder in his apartment and putting toothpicks in his heels; he told him he called the fire department.

Police officer Philip Wander testified he responded to a call for assistance at decedent’s residence on August 12, 1985. Decedent complained to him that his son was placing caustic material in his apartment, causing his eyes to water and causing him difficulty breathing. Wander found nothing in the apartment to cause these symptoms. He made a referral to the health and human resources department because he believed decedent was having some mental problems.

Fire Captain Charles Staffeldt testified that on August 7, 1985, he went to decedent’s residence to check on a report of a smell or smoke in the residence. Decedent complained that his eyes were burning from something in his apartment. Staffeldt was unable to find any fumes or smoke in the apartment.

Dr. John Adams testified for plaintiff as an expert in psychiatry. He had reviewed decedent’s hospital records, records from a nursing home, and a tape of messages left by decedent on plaintiff’s answering machine. One record from a hospital dated August 30, 1985, reported that decedent suffered from senile dementia. The report stated decedent had a history of becoming increasingly confused over the last several months. Another record from a nursing home dated September 18, 1985, reported decedent was at times confused and hallucinated. He was fearful, suspicious, and demanding. It also stated that the date of the onset of confusion was July 1985. Dr. Adams testified that the conditions of decedent did not arise overnight, but were reflective of an extended period of development. It was his opinion decedent did not have the capacity to appreciate the nature of his assets and to make a considered plan for their distribution upon his death when he made his will on June 6,1985.

Charles Miller testified for defendant. He spoke to his father every day and visited him almost every Saturday up until August 30, 1985, when his father was hospitalized. In September and October 1985, he and his wife added their signatures to decedent’s bank account signature cards, but they had no authority over decedent’s accounts prior to September 1985. He identified a group of canceled checks from decedent’s account dated from January 2, 1985, to September 7, 1985. He testified that with the exception of the last five, which were written by him at the end of August and beginning of September, the checks were written and signed by decedent. The last check written by decedent was a check to Illinois Bell dated August 10, 1985. Charles testified that he contacted his attorney to draft the will for decedent, and the will was signed in Charles’ house. He never discussed the contents of the will with his father prior to June 6, 1985.

John Knox testified he witnessed decedent sign his will on June 6, 1985, at Charles Miller’s house. He stated he had a conversation with decedent after he witnessed the signing and that decedent actively participated in the discussion.

Helen Knox testified she witnessed decedent sign his will on June 6, 1985. She stated she stayed at the house after witnessing the will and had a conversation with decedent.

Plaintiff first contends the trial court should have granted a directed verdict and judgment notwithstanding the verdict because defendant failed to rebut his prima facie case. A verdict should be directed only when all of the evidence viewed most favorably to the opponent overwhelmingly favors the movant so that no contrary verdict could stand. (Sloan v. O’Dell (1987), 159 Ill. App. 3d 268, 272; Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494.) Plaintiff argues that after he established a prima facie case, the burden of proof shifted to defendant to prove the validity of the will by proving the statutory requirements of section 6 — 4 of the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. llOhk, par. 6 — 4), specifically, that decedent was of sound mind and memory when he signed the will (Ill. Rev. Stat. 1987, ch. llOVz, par. 6-4(a)(3)).

Plaintiff’s interpretation of the burden of proof in a will-contest proceeding is misguided. Plaintiff cites Sternberg v. St. Louis Union Trust Co. (1946), 394 Ill. 452, which held that the validity of a will in a will-contest proceeding is tried de novo, and the earlier order of admitting the will is of no force. (Sternberg, 394 Ill. at 461.) In a later case, however, the supreme court explained that a proponent of a will is not required in a will-contest proceeding to prove the statutory requirements of the will. In Metzger v. Mowe (1956), 8 Ill. 2d 274, 277-79, the court stated:

“Plaintiff’s theory seems to be based upon the premise that upon the filing of a suit to contest a will the order of probate previously entered by the probate court is null and void and whether the contestant is or is not able to sustain his complaint the proponent of the will must proceed to get a finding in the contest proceeding that the will is the will of the deceased and a new order of probate.
Prior to the Civil Practice Act which became effective January 1, 1934, there might have been merit in plaintiff’s contention. Formerly, in a will contest suit, the proponent of the will was required to make a prima facie case by showing the will and its execution complied with the statutory requirements. [Citation.] This procedure, however, has been changed by statute and by the rules of this court.
* * *
*** In Friberg v. Zeutschel, 379 Ill. 480, at page 486, we stated: ‘The distinction between the old practice and the present is that formerly the proponent had to establish the validity of the will and its due execution, which necessarily required its production and identification by the attesting witnesses. The present rule and statute, however, makes the invalidity of the will the issue, and requires the contestant to make such proof before the proponent makes his.’ ” (Emphasis in original.)

It is clear from Metzger that a will proponent is not required to prove the will in a will-contest proceeding. Plaintiff contends, however, that this case is distinguished because unlike Metzger, he established a prima facie case. Nothing in Metzger suggests, however, that its analysis would have been different if the contestant had made a prima facie case. The clear import of Metzger is that a will proponent is not required to prove the statutory requirements of a will in a will-contest proceeding.

If, assuming arguendo, plaintiff also means to argue that defendant had the burden to rebut his prima facie case, though not necessarily by proving the statutory requirements, this also is not correct. The statute does not require this, nor does common law. The relevant part of the will-contest statute provides:

“The contestant shall in the first instance proceed with proof to establish the invalidity of the will. At the close of the contestant’s case, the proponent may present evidence to sustain the will.” (Ill. Rev. Stat. 1987, ch. lHPAz, par. 8 — 1(c).)

The statute provides that the proponent “may” present evidence to sustain the will. The use of the word “may” establishes that the legislature did not intend to require the proponent to present evidence in response to the contestant. Nor do general principles of common law require a defendant to introduce evidence contrary to plaintiff’s prima facie case before the case may go to the trier of fact. A defendant may submit the issue to the trier of fact on plaintiff’s evidence alone. See M. Graham, Cleary & Graham's Handbook of Illinois Evidence §301.4 (4th ed. 1984); Caley v. Manicke (1961), 29 Ill. App. 2d 323, 328-29.

Even if we agreed with plaintiff’s outdated interpretation of the law, we would still find for defendant on this issue since we find, contrary to plaintiff’s assertions, that the record contained evidence, which, if believed, proved decedent was of sound mind and memory. The witnesses’ affidavit attached to the will was admitted into evidence. In this affidavit John and Helen Knox stated they believed decedent to be of sound mind and memory when he signed the will. Section 6 — 4 of the Probate Act provides that the statements of a witness to prove a will may be made by an affidavit which is signed by the witness at or after the time of attestation and which forms part of the will or is attached to the will. (Ill. Rev. Stat. 1987, ch. llO1^, par. 6 — 4(b).) Furthermore, section 8 — 1 of the Probate Act provides that an affidavit of any witness received in evidence under section 6 — 4 is admissible in a will-contest proceeding. (Ill. Rev. Stat. 1987, ch. IIOV2, par. 8 — 1(c).) Thus, there clearly was probative evidence to prove decedent’s sound mind and memory.

Plaintiff argues in his reply brief that the will and affidavit were not admitted into evidence. This is blatantly inaccurate. The record shows that the will and attached affidavit were tendered to the court by plaintiff as plaintiff’s exhibit No. 4. A stipulation was read that the parties agreed that the document was a true and accurate copy of the last will and testament of decedent, and the document was admitted by the court.

Next, plaintiff contends the court erred in denying admission of a cassette tape containing several telephone messages left by decedent on plaintiff’s telephone answering machine. The trial court ruled that admission of the tape was barred by the Dead Man’s Act (the Act) (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 201). The Act provides:

“In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability ***.” Ill. Rev. Stat. 1987, eh. 110, par. 8 — 201.

Plaintiff, citing Muka v. Estate of Muka (1987), 164 Ill. App. 3d 223, contends that the Act does not apply to taped statements of the decedent. In Muka, this court held that the Act prohibits an interested party from testifying in his own behalf regarding a conversation with the deceased, but does not prohibit the introduction of a tape recording made by the decedent himself. (Muka, 164 Ill. App. 3d at 231.) In Muka, decedent had made a tape of what he intended to be his last will and testament. (Muka, 164 Ill. App. 3d at 226.) Muka is consistent with a supreme court case which held that a taped conversation between decedent and an interested party was not barred by section 2 of the Evidence Act (Ill. Rev. Stat. 1953, ch. 51, par. 2), the precursor to the Dead Man’s Act. (Belfield v. Coop (1956), 8 Ill. 2d 293, 303-04.) In Belfield, the defendant made a recording of a conversation she had with decedent in which decedent responded to her reading of the will and other questions she posed regarding his estate. The court drew an analogy comparing a tape recording to a competent witness who overhears a conversation between decedent and an incompetent witness. Since a competent witness could testify to the conversation (Garrus v. Davis (1908), 234 Ill. 326), the court held a tape recording was likewise admissible provided that a proper foundation was made. (Belfield, 8 Ill. 2d at 303-04.) Thus, in Muka and Belfield the tape was admissible because it was not -testimony by an interested party about a conversation or event in the presence of decedent.

Defendant contends, nonetheless, that the taped messages in this case are barred by the Act. At trial defendant’s theory of defense was that decedent was of sound mind and memory on June 6, 1985, when he signed the will, and any evidence to the contrary was evidence of decedent’s incapacity sometime other than June 6, 1985. Thus, defendant argues that the tape cannot be admitted without a proper foundation to show when the messages were left by decedent. Defendant contends plaintiff is the only one who can testify to this, and since the purpose of the Dead Man’s Act is to remove the temptation of a survivor to testify to matters which cannot be answered by reason of death of decedent (In re Estate of Segur (1972), 5 Ill. App. 3d 459, 461-62), plaintiff may not testify to this information.

We are persuaded by this argument. Our review of the tape shows that it is impossible to tell from the tape when decedent left these messages. The tape consists of 14 messages left by decedent. Plaintiff contends that the messages were left over a period from October 24, 1984, to June 30, 1985. In messages left, according to plaintiff, on November 12 and 24, and December 19, 1984, decedent talks in vague terms about having just made a will. (This appears to be in reference to a prior will that left plaintiff and defendant each half of the estate. This will was not admitted into evidence.) On May 31, 1985, according to plaintiff, decedent talks about going to defendant’s house for dinner. Then on June 7, 1985, according to plaintiff, decedent says someone is trying to hurt him and that defendant is involved in it. He says he is being railroaded. He also says that the bank account is in trouble “on account of a lot of signatures, and it’s got to be changed.” In the last message, according to plaintiff, on June 30, 1985, decedent called to say everything was all right, but he then stated that “they are scheming on something.” He asked for a lawyer in case “they” tried to send him to a nursing home.

The only person who can testify to when decedent left these messages is the plaintiff. The only one who can dispute the plaintiff is decedent. Plaintiff’s testimony about the dates of these messages cannot be allowed under the Act. The Act bars testimony by an interested party to any conversation or event in the presence of decedent. Even assuming arguendo that a taped phone message may not be termed a conversation, plaintiff’s testimony would still be barred as testimony about an event in the presence of the decedent. In Manning v. Mock (1983), 119 Ill. App. 3d 788, 799, the court, after noting that no prior decisions had interpreted the word “event” as used in the current statute, simply looked to the dictionary definition which defined “event” as a “happening or occurrence” (Webster’s New World Dictionary 485 (2d college ed. 1976)). Decedent’s act of leaving a message on a phone answering machine is a happening or occurrence. Thus, testimony by plaintiff on his own behalf about that happening or occurrence is barred by the Act. Therefore, whether the phone messages are called a conversation or an event, plaintiff cannot testify to the dates of these messages. Since plaintiff cannot testify to the dates, there is no evidence to show when the messages were made. Thus, the messages lack the proper foundation for admission.

In his final issue, plaintiff contends the jury’s verdict is against the manifest weight of the evidence. A verdict is against the manifest weight of the evidence where it is palpably erroneous and wholly unwarranted, or appears to be arbitrary, unreasonable, and not based upon the evidence. (Sloan, 159 Ill. App. 3d at 272.) Plaintiff’s sole contention is, again, that defendant failed to prove decedent was of sound mind and memory when he signed the will. As already discussed, the affidavit attached to the will was admitted into evidence. This evidence is sufficient to support a jury verdict for defendant. Thus, there is no merit to plaintiff’s contention.

The decision of the circuit court denying plaintiff’s motion for judgment notwithstanding the verdict or for a new trial is affirmed.

Affirmed.

WOODWARD and LINDBERG, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
    JANET MITCHELL et al., Plaintiffs-Appellants, v. JOHN WADDELL et al., Defendants-Appellees.
    Fourth District
    No. 4—89—0137
    Opinion filed September 28, 1989.

      Alan D. Bourey, of Decatur, for appellants.

      Robert D. Winters and Frederic L. Kenney, both of Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur, for appellees John Waddell and Lorraine Waddell.
    Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, John A. Ess, and Gary S. Schwab, of counsel), for appellee Millikin University.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by plaintiffs Janet and Everett Mitchell from the order of the circuit court of Macon County granting judgment on the pleadings in favor of defendants John and Lorraine Waddell and Millikin University. Plaintiffs’ amended complaint was framed in six counts seeking recovery for the personal injuries to Janet and loss of Janet’s society for Everett as a proximate result of the negligence and wilful misconduct of defendants by maintaining an unreasonably unsafe condition on the premises and by failing to warn thereof. It is alleged Janet fell in a hole while on a farm owned by Millikin and leased to the Waddells. It is further alleged that Janet was invited to the farm by Lorraine Waddell for the purpose of visiting with Lorraine Waddell and relatives and for collecting insects for an insect collection. The wilful misconduct counts allege defendants should have covered the hole or erected a barrier because defendants knew the hole posed a significant danger to plaintiff. In granting judgment on the pleadings, the trial court found that plaintiff’s presence on the property constituted a recreational or conservation use and that the Recreational Use of Land and Water Areas Act (Act) (Ill. Rev. Stat. 1987, ch. 70, par. 31 et seq.) provides that a landowner “owes no duty of care to keep the premises safe for entry or use of any person for recreational or conservation purposes, or to give any warning of a natural or artificial dangerous condition and an owner of land who permits any person without charge to use such property for recreational or conservation purposes does not assume responsibility for any injury to such person caused by any natural or artificial condition.” The trial court also found that the provisions of the Act applied to tenants as well as land owners. After judgment was entered in favor of the defendants, the complaint was stricken. The minute order of the trial court does not refer to each of the counts of the complaint separately.

Section 2 — 615(e) of the Code of Civil Procedure (Code) permits a party to file a motion for judgment on the pleadings. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615(e).) Although a motion for judgment on the pleadings is akin to a motion for summary judgment, since both suggest no genuine issue of material fact exists, the two motions differ in that a motion for judgment on the pleadings submits that no issue of triable fact existed and the movant is entitled to judgment under the averments and admissions of the pleadings, while a motion for summary judgment may utilize affidavits and other documents to establish the absence of a genuine issue of a material fact. (Tompkins v. France (1959), 21 Ill. App. 2d 227, 157 N.E.2d 799.) A motion for judgment on the pleadings asks the trial court to review the pleadings and determine, as a matter of law, that the pleadings fail to present a triable issue of fact. (Maywood Sportservice, Inc. v. Maywood Park Trotting Association, Inc. (1976), 40 Ill. App. 3d 1028, 353 N.E.2d 295.) All well-pleaded facts contained in the pleading of the non-moving party, and the fair inferences therefrom, are considered admitted for the purposes of determining the motion. (Baker-Wendell, Inc. v. Edward M. Cohon & Associates, Ltd. (1981), 100 Ill. App. 3d 924, 427 N.E.2d 317.) Although a motion for judgment on the pleadings is ordinarily made after the parties are at issue so that the court may consider both the complaint and the answer, the motion can be addressed to a complaint alone (Pollack v. Marathon Oil Co. (1976), 34 Ill. App. 3d 861, 341 N.E.2d 101), and the motion may ask for judgment even though the only ground therefor is that the allegations of the complaint are insufficient to state a cause of action. Bohnert v. Ben Hur Life Association (1936), 362 Ill. 403, 200 N.E. 326.

After the judgment on the pleadings is entered, the reviewing court must ascertain whether the trial court’s determination that no genuine issue as to any material fact was presented in the pleadings was correct. If no such issues exist, then the reviewing court must determine whether judgment was properly entered. Upper Avenue National Bank v. First Arlington National Bank (1980), 81 Ill. App. 3d 208, 400 N.E.2d 1105.

The Act relieves landowners who allow their land to be used for recreational purposes without charge from the duties of maintaining a safe premises for such use or from warning recreational users of the land of dangerous conditions on the premises. The Act specifies that liability for wilful or malicious failure to guard against or warn of a dangerous condition, use, structure, or activity is not limited. (Ill. Rev. Stat. 1985, ch. 70, pars. 31 through 37.) Plaintiffs filed two counts against defendants for wilful misconduct.

The incident is alleged to have occurred on or about September 22, 1986. Although the statutes have since been amended by Public Act 85 — 959, effective December 8, 1987 (1987 Ill. Laws 4282, 4284-85), plaintiffs do not argue for the retroactive application of the amendment. Of greatest significance to the case at bar would be the fact the “willful or malicious” language of section 6 has been changed to “willful and wanton.” This seems to be in direct response to the opinion of Davis v. United States (7th Cir. 1983), 716 F.2d 418, which concluded that the legislature meant that only conduct more serious than wilful and wanton must have occurred before a cause of action can lie, otherwise the legislature would have said wilful and wanton. Plaintiffs rely on Miller v. United States (N.D. Ill. 1976), 442 F. Supp. 555, which interpreted the “wilful and malicious” language by referring to the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, pars. 60 through 69) and the court interpretations thereof. Under these cases, “wilful” means a defendant knew of or should have discovered a dangerous condition by the exercise of reasonable care. Under the Scaffold Act (Ill. Rev. Stat. 1957, ch. 48, pars. 60 through 69), wilfully is synonymous with knowingly. Kennerly v. Shell Oil Co. (1958), 13 Ill. 2d 431, 150 N.E.2d 134.

However, this is not a Structural Work Act case. As Davis points out, the use of the terms “wilful” and “wanton” in landowner liability have long-standing application and there would seem to be no reason to turn to the Structural Work Act to arrive at a definition of “wilfulness” in this statute. Another consideration is that the Act is in derogation of the common law and therefore must be strictly construed.- (Forthenberry v. Franciscan Sisters Health Care Corp. (1987), 156 Ill. App. 3d 634, 509 N.E.2d 166.) This is the basis for the Davis opinion. Had the legislature intended the same effect as the common law, there was no reason to utilize different language.

Furthermore, this court need not decide whether the facts as alleged in the complaint warrant awarding defendants judgment on the pleadings under the reasoning in Davis. The Act clearly makes an exception for wilful or malicious conduct. The plaintiffs attempt to state a cause of action which fits within the statutory exception. The alleged wilful or malicious conduct must be manifested in the facts alleged, and conclusory allegations or mere characterizations of alleged acts as wilful are not sufficient. (See Loftus v. Mingo (1987), 158 Ill. App. 3d 733, 511 N.E.2d 203.) While counts V and VI of plaintiffs’ complaint should properly have been dismissed as conclusory, plaintiffs should have been afforded an opportunity to replead. For this reason, the judgment on the pleadings as to counts V and VI is reversed.

As to counts I through IV alleging negligence, plaintiffs suggest that Janet was there to socialize with Lorraine as well as collect insects. Certainly, collecting insects is a recreational activity as defined under the statute. (Ill. Rev. Stat. 1985, ch. 70, par. 32(c) (nature study).) This is not disputed. Plaintiffs argue, however, that merely because she might also socialize with Lorraine the statute can be avoided.

Plaintiffs ask this court to look to the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) and respondeat superior cases to consider the determination of when an individual is acting within the scope or course of his employment as an analogy to the instant case. Plaintiff argues that at some time while she was on the property her activity changed from insect collecting to socializing.

The key, however, is what the legislature intended. (Johnson v. Stryker Corp. (1979), 70 Ill. App. 3d 717, 388 N.E.2d 932.) Section 1 of the Act (Ill. Rev. Stat. 1985, ch. 70, par. 31) states:

“The purpose of this Act is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.”

Here, plaintiff admittedly entered on the land for a recreational purpose. She did not depart from the land and then return later for a different purpose. Having entered upon the land for a recreational purpose, the landowner is relieved of liability, and the fact the plaintiff decided to engage in some additional activity while on the land does not avoid the effect of the statute. (See Fisher v. United States (D. Mont. 1982), 534 F. Supp. 514.) Therefore, the granting of judgment on the pleadings as to counts I though IV is affirmed.

For the foregoing reasons, the judgment of the circuit court of Macon County is affirmed in part, reversed in part, and remanded with directions to allow plaintiffs an opportunity to amend counts V and VI.

Affirmed in part; reversed in part and remanded.

LUND and STEIGMANN, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee and Cross-Appellant, v. SCOTT P. JENNINGS, Defendant-Appellant and Cross-Appellee.
    Fourth District
    No. 4—89—0158
    Opinion filed September 28, 1989.

      Gerald R Rodeen, of Dilks, Rodeen & Gibson, of Paxton, for appellant.
    Tony Lee, State’s Attorney, of Paxton (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

Defendant Scott P. Jennings appeals from an order of the circuit court of Ford County entered February 9, 1989, in which the court denied his petition to rescind the statutory summary suspension of his driver’s license. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1.) The State also cross-appeals from an order of the court entered that same date staying the summary suspension pending appeal of that court’s decision. We affirm.

At the hearing on his petition, defendant testified he had been involved in a motor vehicle accident on the evening of December 16, 1988, in which he sustained injuries. Defendant stated he had been transported to a local hospital. However, he said no one administered blood or breath tests to him following the accident nor did he remember being treated by a registered nurse while at the hospital.

Following defendant’s testimony, the State asked the court to make certain findings from a law officer’s sworn report prepared by police officer James Morris. Those findings included defendant’s arrest for driving under the influence, a description of defendant’s physical characteristics observed by the officer, and the results of a blood-alcohol test performed on defendant. It requested the court to deny defendant’s petition to rescind based solely on the evidence contained in that report. However, the court denied that request, concluding defendant had established a prima facie case that no blood-alcohol tests were performed on him.

Police officer James Morris then testified that, at approximately 11 or 11:30 p.m. on December 16, 1988, he observed a black 1983 Chevrolet Camaro run a stop sign, slide, and almost run into his squad car. He admitted the weather conditions on the evening in question were “terrible,” as it was snowing, and there had been some sleet and freezing rain which had caused icy pavements.

The officer said that, after he observed the car in question, he turned on his lights and sirens, and the car fled at a high rate of speed. He followed the car and found it after the driver had driven the car into a tree. The officer discovered the driver was unconscious and had several gashes in his forehead. He also smelled of alcohol. The officer immediately called for an ambulance.

Officer Morris stated he asked defendant at the hospital whether he had been drinking, and defendant responded he had. He also observed the defendant had watery and bloodshot eyes and appeared to be somewhat confused. Officer Morris said he strongly believed defendant had been under the influence of alcohol while driving his vehicle.

The officer said he twice read defendant the warning to motorists pursuant to section 11 — 501.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501.1). He said defendant told him he understood those warnings and then consented, both verbally and by signing a hospital consent form, to a blood test. The officer stated he was present when a nurse drew two vials of blood from the defendant. He said he labeled the vials and mailed them to a laboratory for analysis.

Over defense objection to any matters contained in the law officer’s sworn report based upon hearsay and lack of foundation grounds, the officer testified he received the results of the blood test and then prepared his law officer’s sworn report as provided by law. He said he mailed a copy of that report to defendant, which report indicated the results of the blood test performed on defendant had disclosed a blood-alcohol concentration of 0.15.

Officer Morris conceded during cross-examination he did not know what training the nurse who performed the blood test on defendant had received. He further indicated he did not have direct knowledge of whether the laboratory which performed the analysis on defendant’s blood was certified. He also did not have the documentation of the lab results with him.

The court then sustained objections by the State following further inquiry of the officer by defendant regarding certification and compliance with the rules and regulations of the Department of Public Health. The court concluded the State was “required to lay a foundation” for the blood test only “if there is some showing [by defendant] the blood test [was] invalid” (emphasis added).

The court decided that, since the only prima facie case made by defendant was that no blood tests had been performed, the State only had to rebut what was challenged and did not have to lay a foundation before admitting the results of the blood test. The court concluded the State had sufficiently rebutted defendant’s prima facie case by showing a blood test had, in fact, been taken of the defendant. The court determined defendant had not met his burden of proof and, therefore, denied his petition to rescind the statutory summary suspension of his driver’s license.

On appeal, defendant contends we must reverse the judgment of the trial court denying his petition because it erred in failing to require the State to lay a foundation before admitting the results of defendant’s blood test. We disagree.

The supreme court has recently held that, once a motorist has made a prima facie case that a test result did not disclose a blood-alcohol concentration of 0.10 or more, or a test result did not accurately reflect his blood-alcohol concentration, in order to avoid rescission of the statutory summary suspension, the State must move to admit the test into evidence and lay the required foundation for it. People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.

The court did not fully elaborate on what would constitute a prima facie case but instead indicated that whether a defendant met his or her burden in a given case depended on the particular evidence presented by the defendant. The court did note the burden would shift to the State to lay a proper foundation for the admission of test results only if the trial court found the testimony presented by defendant was credible.

Here, the trial court decided defendant had made a prima facie case that no blood or breath test had been performed on him but also concluded the State was not required to establish a proper foundation in accordance with Orth because the defendant had not met his burden of establishing the test was somehow invalid or inaccurate. We believe the trial court accurately interpreted Orth in reaching that conclusion.

While the court in Orth did not limit what would constitute a prima facie case, it did hold a defendant would meet his burden if his evidence showed the test results did not disclose a blood-alcohol level of 0.10 or more or the results were somehow inaccurate. Here, defendant did not attack the findings or accuracy of any tests performed but instead testified no tests had been performed on him. We conclude the State sufficiently rebutted this contention through testimony that a blood test had, in fact, been administered.

We consider Orth to establish a policy of requiring the State, in proceedings of rescission of statutory summary suspensions, to incur the expense and other burdens of laying a foundation for the introduction of the results of blood-alcohol tests which the circuit court finds to have been administered to a licensee only in cases where the licensee presents credible evidence that (1) the tests’ results failed to disclose a blood-alcohol content of 0.10 or more; or (2) the test result was not accurate. In cases such as here, where the only dispute raised by the licensee is whether the tests were administered, the court can decide that question on the evidence produced without the need of going into the technical foundation questions ordinarily involved in laying a foundation for admission of test results.

The judgment denying defendant’s petition must be affirmed.

The State also cross-appeals the order entered by the court in which it stayed defendant’s statutory summary suspension pending a decision on appeal. It contends the court lacked the requisite authority to impose such a stay. We disagree.

As we have indicated, the State contends on cross-appeal that the circuit court erred when it entered an order staying the summary suspension ordered by the Secretary of State pending this appeal. The State’s theory is based upon the provisions of section 2 — 118.1(b) of the Code which, in describing proceedings before the circuit court for rescission of such a suspension, states:

“This judicial hearing, request, or process shall not stay or delay the statutory summary suspension.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1(b).)

The State also relies upon the decision of the Appellate Court for the Second District in People v. Cronin (1987), 163 Ill. App. 3d 911, 517 N.E.2d 28. There, the Secretary of State appealed an order of the circuit court, entered in a proceeding for rescission of a statutory summary suspension of an operator’s license, staying the suspension nunc pro time the date of the issuance of the summary suspension while the case was held in abeyance before the circuit court while awaiting a supreme court decision on the constitutionality of the provisions for summary suspension. That court held the cited provisions of section 2 — 118.1(b) of the Code deprived the circuit court of authority to order such a stay.

Here, unlike in Cronin, the stay operated upon the summary suspension from the time of the circuit court’s order pending appeal to this court. In the case of In re Summary Suspension of Driver’s License of Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614, this court held the cited provisions of section 2 — 118.1(b) did not apply to stays of suspensions ordered after the circuit court had ruled upon a request for rescission and pending appeal to the appellate court. This holding was made in the context of a contention by the licensee that section 2 — 118.1(b) was void as an unconstitutional restriction upon the supreme court’s rulemaking power in regard to appeals. (Ill. Const. 1970, art. VI, §16; 107 Ill. 2d R. 305(b)(1).) This court deemed it appropriate to give section 2 — 118.1(b) an interpretation consistent with constitutional propriety. People v. Davis (1982), 93 Ill. 2d 155, 442 N.E.2d 855; Morton Grove Park District v. American National Bank & Trust Co. (1980), 78 Ill. 2d 353, 399 N.E.2d 1295.

The State contends our decision in Trainor is contrary to the decision in Cronin. As we have indicated, our decision concerned a stay pending appeal after a circuit court judgment. Cronin involved a stay while the matter was pending before the circuit court. We need not reject the Cronin decision in order to continue to follow Trainor. We confirm our holding in Trainor and need not pass upon whether we agree with Cronin. We do note section 2 — 118.1(b) of the Code speaks of stays arising from a (1) “judicial hearing”; (2) “request”; or (3) “process.” Nothing is mentioned concerning a stay arising from a court order for that stay.

Supreme Court Rule 305(b)(1), upon which the power of the circuit court to grant the instant stay is based, provides that, upon motion, a trial or reviewing court can “stay pending appeal *** the enforcement, force and effect of any other final or interlocutory *** administrative order” (107 Ill. 2d R. 305(b)(1)). The State contends that, because the summary suspension is automatic upon the filing of the law enforcement officer’s report, no administrative order exists for the court to stay. However, section 11 — 501.1(e) of the Code provides that, upon receipt of such a report, “the Secretary of State shall enter the statutory summary suspension.” (Ill. Rev. Stat. 1987, ch. 95%, par. 11 — 501.1(e).) That entry by the Secretary of State is the order suspended here.

Accordingly, we affirm all orders appealed.

Affirmed.

McCULLOUGH, PM., and STEIGMANN, J., concur.


author: JUSTICE LINN

text:
    FRED JUNG, Plaintiff-Appellee, v. HARRY ZEMEL, Defendant-Appellant (Kwang Mun, Defendant).
    First District (4th Division)
    No. 1—87—1689
    Opinion filed September 21, 1989.

      Lester Shapiro, of Zemel & Shapiro, of Chicago, for appellant.
    Allen Weissman, of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Fred Jung, brought an action in forcible entry and detainer for possession of commercial premises in a building that he owns. His lessee, Harry Zemel, had used the premises for his dry cleaning business for several years. Zemel had entered a written agreement with Kwang Mun under which Mun was designated “manager” of the business. Jung sued both Zemel and Mun on the grounds that the agreement between Zemel and Mun was actually a sublease and that Zemel’s failure to obtain Jung’s prior written consent to Mun’s subtenancy constituted a violation of the lease. The trial court found in favor of Jung.

On appeal, Zemel contends that his agreement with Mun was not a sublease; that even if it could be so construed, Jung waived any objection he had to Mun’s tenancy; and that he did not receive proper notice of the termination of his leasehold.

We reverse.

Background

The evidence adduced at trial reveals the following.

In 1977, Zemel entered into a lease with a prior owner, Marco Fernandez. He improved the premises to accommodate his dry cleaning store, putting in tiles, panelling, an electrical system, and fixtures at his own expense. Under the original lease, and renewal options, Zemel remained in possession as lessee from 1978 through 1984. During this period Jung purchased the building and became Zemel’s lessor.

Jung and Zemel agreed to continue the leasing arrangement upon the expiration of the original lease in 1984, and they entered into a new lease with a higher rent but essentially the same terms. Zemel also paid Jung $10,000, the purpose of which is not clear in the record, although it was characterized as “back rent” and “unpaid gas and heat.” The new lease was dated January 1985 and Zemel continued paying rent under this lease through the time of trial.

After Zemel had finished remodeling the premises in early 1978 he hired a Spanish woman to run the business. Fernandez, the prior lessor, was aware that this woman was operating the business but he never discussed her with Zemel or asked Zemel about the operation of the store.

In April 1981 Zemel entered into an agreement with Kwang Mun. Zemel wrote the agreement in longhand and both parties signed it. Under the terms of the document, Mun was to manage the cleaners for a three-year period. The hours of operation were set out. All profits were to remain with Mun and she was to pay all expenses. In return, Zemel was to receive $75 per month “as a return on Zemel’s investment.” Zemel retained the power to designate the firm that would handle all dry cleaning and pressing. He retained title to the fixtures and granted Mun first option to buy if Zemel wanted to sell the store. The agreement contained a clause under which Mrs. Mun and her husband agreed not to compete with Zemel’s business within a one-half-mile radius for two years following termination of the agreement. The agreement stated that Mun was not Zemel’s employee.

Zemel did not give Jung a copy of this agreement, nor did he request Jung’s consent to the arrangement he had with Mun. Zemel testified that he never intended to assign his lease. He also testified regarding the extent and nature of his control over the dry cleaning business.

According to Zemel, Jung learned of his agreement with Mun in late 1984, and he and Jung discussed it in December of that year. Zemel told Jung that with the rent increases and the $10,000 Jung had demanded, he was not making any profit from the store. The money that Mun was paying to Zemel for the rent expense was less than Zemel was obligated to pay to Jung.

Marcos Fernandez, the original lessor, testified that he never had any trouble with Zemel and that it made no difference to him who ran the store as long as the person was not drunk or breaking things. Zemel was the one who paid Fernandez the rent. Fernandez paid for the heat under the lease and never asked for water or gas.

Jung testified that he became the owner of the building in March 1978. He admitted that he visited the store several times a month and was aware that Mun occupied the store. He did not recall ever seeing Zemel in the store.

Jung stated that Mun showed him the agreement between her and Zemel in December 1984, when she discussed the fact that she and Zemel were negotiating for the sale of the business. According to Jung, the handwriting was so difficult to read that it took him awhile to transcribe it and understand its effect. He showed it to several people, including an attorney. He thought he became aware that it was a sublease in February 1985. He then contacted Zemel, claiming that it violated their lease.

Jung testified that he told Zemel one way to cure the lease violation would be to consummate the sales negotiations with Mun. He, Zemel, Mun, and Mun’s attorney discussed the sale during a meeting. Jung testified that he believed the negotiations were at an impasse in April 1985 and he sent a notice of termination of tenancy on May 1. He served the notice on Zemel by handing it to Mrs. Mun at the dry cleaners. He admitted that he knew Zemel’s address in Highland Park, which was on the lease. After the expiration of the 30-day period, nothing happened.

Jung testified that he filed the forcible detainer action pro se on July 31, 1985. He had served five-day notices before and after filing the lawsuit.

In a letter dated January 4, 1986, months after the notice of termination and the institution of the lawsuit, Jung informed Zemel that he wanted the 6% rental increase that was called for in the 1985 lease.

Mun testified that she operates the cleaning business and pays rent to Zemel each month. She admitted that she showed Jung the agreement she had with Zemel in December of 1984. Zemel had asked her to buy the store and they were negotiating in January or February 1985. She said she paid Zemel all the rent that she owed him.

Zemel moved for directed finding at the close of Jung’s case, which was denied.

Zemel called Jung to testify as an adverse witness, using Jung’s deposition to impeach his trial testimony concerning when Mun contacted him about Zemel’s request for the $10,000 and whether Jung had told Mun that he was going to end the lease with Zemel.

Jung admitted that he had told Zemel, in effect, that he wanted $9,000 to allow the sublease. However, Jung maintained that Mun was never formally offered to him as a sublessee.

Regarding the $10,000 payment that he received from Zemel, Jung testified that he received $4,500 in November 1984 and another $5,500 at the end of December. He said that the money was to pay for gas bills that he had not previously collected and for what he considered to be low rent in the past. He admitted that the “back rent” figure he came up with was not part of the rent in the lease, but merely what the rent should have been, according to his valuation of the lease. He also testified that he interpreted certain paragraphs in the lease as requiring the lessee to pay the gas and heat.

Zemel testified in his own behalf. He stated that when he and Jung met to discuss renewing the lease in 1984, Jung wanted $10,000 as back rent and gas and heat. Zemel did not owe him any money and had paid the rent regularly and on time. His prior landlord had paid for heat because it was a centrally heated store.

Zemel contacted Mun and told her that since she was responsible for the expenses of the store she should pay him the $10,000 as reimbursement. Mun apparently complained to Jung, who then called Zemel and told him that he should not try to get the money from Mun. Jung told Zemel that he should sell Mun the store because that would take care of the lease violation.

Zemel testified that when he went to the meeting with Mun and her attorney to discuss the sale of the business, Jung was there and said he was “representing” her and looking out for her interests. Zemel told Mun’s attorney that he would sell the store for $35,000, since he had already given Jung $10,000, leaving a net of $25,000. Jung said he thought that was too much and offered his opinion that $8,000 would be a fair price.

Zemel further testified that Jung telephoned him at home in February of 1985 and accused him of harassing Mun and of violating the Sherman Antitrust Act.

According to Zemel, in April 1986 Jung asked Zemel for $9,000 in exchange for his permission to transfer the lease to Mun. At that time the sales price had been negotiated to $22,500 and Mun’s attorney had drawn up a contract with that amount. Zemel told Jung that if he gave him $9,000 he would end up with only $3,500 because of the previous $10,000 he had paid Jung to renew the lease.

Mun testified that although she signed the agreement that Zemel prepared she does not understand English. Her husband does, however, and he reviewed it.

At the close of the evidence the court ruled in favor of Jung, granting him possession of the premises. The court stated that “Mr. Zemel apparently viewed himself as operating the business and managing one of the cleaning establishments. That’s what I ruled. He had a lease with the landlord, which was technical documents [sic], and I never did ask whatever he thought he was doing with Ms. Mun or any of the private people. *** [He entered into a sublease] and he never asked for consent until now. That’s a violation of the terms of the lease.”

Opinion

The ultimate issue in this forcible entry and detainer action is who is entitled to possession of the leased premises. Jung, the owner of the building and lessor, bases his right to possession on the failure of his lessee, Zemel, to obtain his prior written consent before allowing Mun to occupy the premises. Zemel counters that he was not required to obtain Jung’s approval of Mun because she was not a subtenant. Further, he maintains that Jung had no objection to Mun’s tenancy and waived any objection to her by urging Zemel to sell the business to Mun. Since the law requires that a landlord may not withhold consent unreasonably, Jung’s conduct was an improper restraint on the transfer of the leasehold.

Zemel initially asks this court to reverse the trial court’s finding that his agreement with Mun constituted a sublease. He does not argue that the determination is against the manifest weight of the evidence, but instead argues that the trial court’s construction of the agreement was erroneous as a matter of law. Additionally, he contends that the trial court was unduly influenced by a preliminary injunction order issued by a different judge in a separate, preliminary injunction action, which found the agreement in question to be a sublease.

While we acknowledge that Zemel retained certain indicia of control over the leased premises, and that he may not have intended to create a sublease, we also note that in substance the agreement could be construed as one. However, because we believe that the dispositive issue in this case is whether Jung waived the landlord consent provision, we will assume that the agreement between Zemel and Mun is a true sublease.

Since Zemel did not obtain Jung’s prior, written consent to Mun’s subtenancy, Zemel was in violation of the lease, as the trial court found. However, strict compliance with contractual provisions can be waived by the conduct of the parties. (See, e.g., Swerdlow v. Mallin (1985), 131 Ill. App. 3d 900, 476 N.E.2d 464.) Moreover, Illinois law does not favor forfeitures, and courts have noted their readiness to find circumstances that indicate an intent to waive forfeiture. (See Waukegan Times Theatre Corp. v. Conrad (1945), 324 Ill. App. 622, 59 N.E.2d 308 (lessor who accepted rent from assignee was barred from asserting forfeiture based on a lease provision which stated premises could not be assigned without lessor’s prior written consent).) In addition, covenants that restrict the assignment or subletting of leased premises are to be strictly construed against the lessor. See, e.g., Chanslor-Western Oil & Development Co. v. Metropolitan Sanitary District (1970), 131 Ill. App. 2d 527, 266 N.E.2d 405.

In the pending case, the parties’ dealings indicate that Jung did not object to having Mun as a subtenant. On the contrary, he was willing to keep her as his main tenant under a new lease if Zemel sold her the business.

Jung, as successor to the prior landlord, purchased the building subject to Zemel’s leasehold. During the several years remaining on the original and extended lease, Jung accepted the rent Zemel paid and apparently never requested additional money for heat and gas. Jung had seen Mun, not Zemel, in the store running the business. He voiced no objections to the way Zemel’s business was operating and simply looked to Zemel for the rent.

Jung also was willing to renew Zemel’s lease when the old one expired at the end of 1984. To this end, he and Zemel negotiated a lease to take effect in January 1985 with a higher rent and yearly increases. He also demanded that Zemel pay him a total of $10,000. He claimed $4,500 in “back rent,” money that was not required under the original lease but which Jung apparently felt better reflected the value of the lease. He also claimed that he was due $5,500 for heat and gas that he believed was the lessee’s obligation under the original lease, even though it had never before been requested or collected from Zemel.

Although Jung admitted that he was shown the Zemel/Mun agreement in December 1984 (a time when he was entering the new lease with Zemel and collecting $10,000), he did not notify Zemel of the potential lease violation until February 1985. Even then, he participated in negotiations between Zemel and Mun for the sale of the dry cleaning business, telling Zemel the lease violation would be cured if the sale went through, provided that he received more money. That he did not find Mun an objectionable subtenant or even main tenant is clear from his words and acts. Under these circumstances, we do not find it appropriate to allow the forfeiture of the lease and the award of possession of the premises to Jung.

In Illinois, a landlord may not unreasonably withhold his consent to a commercially reasonable subtenant. See Jack Frost Sales, Inc. v. Harris Trust & Savings Bank (1982), 104 Ill. App. 3d 933, 433 N.E.2d 941; Vranas & Associates, Inc. v. Family Pride Finer Foods, Inc. (1986), 147 Ill. App. 3d 995, 498 N.E.2d 333 (Commercially reasonable standards may include the financial responsibility of the proposed subtenant, the type of business to be conducted, and whether it competes with the business of the lessor or other tenants).

In the pending case Jung does not assert that Mun is an unacceptable tenant or that she has not shown herself to be financially responsible in operating the business. Rather, he maintains that Mun was never tendered to him as a subtenant. Ergo, he could not consent to that which was never offered.

In taking this simplistic approach Jung does not analyze the waiver issue but simply ignores it. Since under the law Jung could not have withheld his consent to Mun unless he had a reasonable basis for doing so, his attempt to terminate the lease is revealed for what it was — use of the technical lease violation in an attempt to force Zemel to pay him a substantial sum in exchange for permitting Mun’s continued operation of the dry cleaners.

From the beginning of his lease in 1978 Zemel had others operate the dry cleaning business. He considered himself the owner of the business and the party responsible under the lease to perform the rental and other obligations owed to Jung. When he made his deal with Mun, in 1981, Zemel was not seeking a way out of his lease with Jung or planning to vacate the premises, as is often the case when the landlord’s refusal to consent to a sublease is in issue. (See, e.g., Wohl v. Yelen (1959), 22 Ill. App. 2d 455, 161 N.E.2d 339; Scheinfeld v. Muntz TV, Inc. (1966), 67 Ill. App. 2d 8, 214 N.E.2d 506.) As far as Jung was concerned, no change in the business occurred and no threat to his collection of rent arose. Jung was not required to find a new tenant to fulfill an unexpired term.

Nevertheless, several weeks after seeing a copy of the Zemel/Mun agreement, Jung took the position that because Zemel had not obtained Jung’s consent to Mun’s sublease, he could declare the lease forfeited at any time. Armed with that belief, he waited for months to do so, first telling Zemel to forget about getting the $10,000 from Mun and then telling him that the violation could be cured if Zemel sold Mun the business and paid him additional sums of money to permit the transfer. In the meantime, the business operated as usual, Jung continued to collect all rents due under the new lease, including demands for additional sums in heat and gas. Mun continued to run the store, as she had for years with Jung’s awareness of her existence, if not legal status. The only thing that had changed was Jung’s perception of the arrangement between Zemel and Mun. His financial risk did not change. Once he decided that Mun was a subtenant, he apparently thought that he was entitled to profit from the situation, far beyond the terms of the lease or the expectations of the parties. Meanwhile, he continued to treat the 1985 lease as being in effect and he even sent a reminder in January 1986 that a percentage rent increase was due from Zemel. See Waukegan Times Theatre Corp. v. Conrad (1945), 324 Ill. App. 622, 632, 59 N.E.2d 308, 312 (Landlord “cannot be heard to say [lease] is valid for one purpose, and, in the same breath, that it is invalid for all other purposes”).

We conclude that Jung’s conduct constituted a waiver of strict compliance with the lease provision that required his prior consent to Mun’s subtenancy. That he had no commercially reasonable objection to Mun’s occupancy of the leased premises is evident from his dealings with Zemel and Mun in connection with the proposed sale of the business to Mun. Accordingly, we hold that the judgment granting Jung possession must be reversed and judgment entered in favor of Zemel.

Because of our holding, we need not reach the notice issue.

For the foregoing reasons, we reverse the judgment of the trial court.

Reversed.

JOHNSON and McMORROW, JJ., concur.

       Although Zemel took the position at trial that he did not owe the $10,000 to Jung, he nonetheless paid it. He claimed that Jung otherwise would not have renewed the lease. Zemel then attempted to collect it from Mun under his agreement with her that she pay the “expenses” of the store. Not surprisingly, she balked at paying a $10,000 charge of which she had no knowledge or control. When Zemel explained what it was for and she then questioned Jung, he attempted to prevent Zemel from bothering Mun for the money. He even interceded in the sales negotiations that Mun and Zemel were conducting. This peculiar situation grew worse when Jung told Zemel that he wanted $9,000 if Mun purchased the business from Zemel.


author: JUSTICE JOHNSON PRESIDING JUSTICE JIGANTI,

text:
    NANCY GITTLEMAN et al., Plaintiffs-Appellants, v. CREATE, INC., Defendant-Appellee.
    First District (4th Division)
    No. 1—87—2712
    Opinion filed September 21, 1989.

      JIGANTI, RJ., dissenting.
    Ken Klimczak, of Michael R. Ranter & Associates, of Chicago, for appellants.
    Larry J. Meyer, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiffs, Nancy Gittleman and Debra Hanch, appeal from the order of the circuit court of Cook County finding that they were not entitled to the full statutory penalty of an amount equal to their security deposits, costs, and reasonable attorney fees, pursuant to section 2 of the security deposits on residential leases act (Ill. Rev. Stat. 1985, ch. 80, par. 122) (hereinafter the Act). Defendant herein is Create, Incorporated, an Illinois corporation engaged in the business of managing residential apartment buildings. The sole issue on review is whether the trial court erred in failing to impose the statutory penalty.

We reverse.

Plaintiffs were tenants of apartments leased by defendant under a one-year written lease dated September 30, 1986. Gittleman resided at 1371 West Estes, Apartment 2F, Chicago, Illinois, and Hanch resided at 1367 West Estes, Apartment K, Chicago, Illinois. Under the terms of each lease, the security amount and the amount of rent per month would be $300.

Prior to the termination of their leases, plaintiffs made oral and written demands for the return of their security deposits. Subsequently, plaintiffs moved to new residences. An inspection checklist prepared by defendant revealed no damages to plaintiffs’ apartments at the end of their tenancies.

On October 27, 1986, defendant mailed a $300 check to Hanch and to Gittleman. Both checks were sent certified mail to their respective former addresses, i.e., 1367 West Estes, Apartment K, and 1371 West Estes, Apartment 2F. Hanch’s check was returned “addressee unknown” and not forwarded to any other address. Gittleman’s check was returned, marked “unclaimed.” On March 3, 1987, another check was mailed to Hanch, which she did receive. The check was mailed prior to defendant being served with summons in this case. A second check was mailed to Gittleman in December 1986; however, it was again returned unclaimed.

On February 17, 1987, plaintiffs filed suit against defendant and Earl Niemoth for their security deposits and interest refunds. Defendant was served on March 10, 1987. A special appearance was filed on behalf of both defendants. The trial date was set for April 2, 1987, but was continued pending a hearing on the special appearance and defendant’s motion to quash service. The motion was denied on April 30, 1987. Also on that date voluntary nonsuit was taken against Niemoth, who was dismissed as a party defendant.

Plaintiffs filed their motion for summary judgment on June 10, 1987, but it was stricken due to improper notice. On June 16, 1987, defendant filed its motion for summary judgment, which was scheduled to be heard on June 29, 1987. Plaintiffs refiled their motion for summary judgment on June 18, 1987, which was scheduled to be heard on June 25, 1987, but was continued to June 29 pending the hearing on defendant’s motion for summary judgment.

On July 27, 1987, arguments were heard on the cross-motions for summary judgment. The court rendered a decision in favor of plaintiffs. It ordered defendant to pay each plaintiff $15 in interest on their security deposits and to pay Gittleman $300 as her security deposit return. The court further ordered defendant to pay costs; however, the court found that plaintiffs were not entitled to an amount equal to the security deposits or attorney fees. This appeal followed.

Plaintiffs contend on appeal that the trial court erred in failing to award them the statutory penalty for refusal to pay interest on their security deposits, pursuant to sections 1 and 2 of the Act. (Ill. Rev. Stat. 1985, ch. 80, pars. 121, 122.) Defendant argues that the leases expressly provided for the disposition of interest on the deposit. A provision stamped onto the lease provided in relevant part: “It is understood that the security deposit is net of security deposit interest, if any.” Defendant claims that the interest on the $300 security deposit is $15 per year, or $1.25 per month, which is deducted from the rent. Thus, defendant asserts that the gross rent is 301.25; net rent of $300, and $1.25 credited monthly as interest on the security deposit.

Defendant further argues that its refusal to pay the interest was not willful. It claims that in order to impose the statutory penalty the court must find its failure to pay the interest was willful. Defendant primarily relies on Mallah v. Barkauskas (1985), 130 Ill. App. 3d 815, to support this argument.

Mallah involved the refusal of a lessor to return a security deposit. The court ordered the lessor to return the security deposit, but did not impose the statutory penalty pursuant to section 1 of the security deposits for rent or compensation for damages act (Ill. Rev. Stat. 1983, ch. 80, par. 101), since it found that the lessor did not act in bad faith.

Mallah is not dispositive of the present issue. Mallah involves a different issue governed by a different provision. Under the provision relied on in Mallah, in order to impose the statutory penalty one must prove that the lessor acted in bad faith. However, under section 2 of the Act, which is applicable in the present case, the statutory penalty will be imposed if it is determined that the lessor’s conduct is willful. Hence, Mallah is inapplicable to the case at bar.

The law is well settled that when construing statutes this court must give effect to the legislative intent. (Village of Schaumburg v. Franberg (1981), 99 Ill. App. 3d 1, 5.) “In ascertaining legislative intent, the entire statute must be considered [citation] as well as giving effect to ‘the evil to be remedied and the object to be attained’ [citation].” (Chastek v. Anderson (1981), 83 Ill. 2d 502, 511.) In those instances where the legislative intent is clear from the plain and ordinary language of the statute, we are without authority to construe it otherwise. Weisberg v. Byrne (1981), 92 Ill. App. 3d 780, 784.

Section 1 of the Act provides:

“A lessor of residential real property, containing 25 or more units, who receives a security deposit from a lessee to secure the payment of rent or compensation for damage to property shall pay interest to the lessee computed from the date of the deposit at a rate of 5% per year on any such deposit held by the lessor for more than 6 months.” (Ill. Rev. Stat. 1985, ch. 80, par. 121.)

Section 2 of the Act provides:

“The lessor shall, within 30 days after the end of each 12 month rental period, pay to the lessee any interest, by cash or credit to be applied to rent due, except when the lessee is in default under the terms of the lease.
A lessor who willfully fails or refuses to pay the interest required by this Act shall, upon a finding by a circuit court that he has willfully failed or refused to pay, be liable for an amount equal to the amount of the security deposit, together with court costs and reasonable attorney’s fees.” Ill. Rev. Stat. 1985, ch. 80, par. 122.

The words of the above two provisions are clear. We find no ambiguities in their meaning. A lessor who receives a security deposit which is held over six months must pay 5% interest per year on that deposit. Within 30 days from the end of a 12-month period the lessor must pay the lessee the interest. If the lessor willfully fails or refuses to pay the interest, he is liable for costs, reasonable attorney fees, and an amount equal to the amount of the security deposit.

As mentioned earlier, plaintiffs’ leases had a stamped provision referring to the interest. During the summary judgment hearing defendant claimed that the provision meant that the gross rent was $301.25; the net rent was $300, and $1.25 was credited monthly as interest on the security deposit.

We cannot find, neither do the leases reflect, the above calculation or explanation, and a contractual acceptance of such explanation is questionable. Accordingly, the trial court ordered defendant to pay the interest due on the security deposits and impliedly found the stamped provision invalid. Nevertheless, the court only ordered defendant to pay costs.

We are of the opinion that defendant willfully refused to pay plaintiffs the interest on their security deposits. Defendant’s proffered explanation of the stamped provision appears to be a means of circumventing the mandate of section 1 of the Act. The legislative history clearly states that the purpose of section 2 was to set forth a penalty for lessors who ignored the mandate of section 1 of the Act. While debating the severity of the penalty to be imposed for violation of section 1, one of the legislators stated:

“[I]t was pointed out to me that the average rent is three hundred, so it would mean that the landlord would be liable or the management firm would be liable for fifteen dollars[.] [Y]ou and I know that this is not a realistic figure that he’s not going to abide by the law for fifteen dollars knowing full well that the tenants would not engage a lawyer, would not take the day off *** to appear in court and as a result we had to bring it to a realistic position so that, the owners of these buildings would comply and this is the reason for it.” 79th Ill. Gen. Assem., House Proceedings, August 20, 1976, at 13-14 (statements of Representative Merlo).

Another legislator noted that from his experience in his district lessors were not abiding by their legal obligation under section 1 of the Act to pay interest on security deposits. (79th Ill. Gen. Assem., House Proceedings, August 26, 1976, at 11 (statements of Representative Lundy).) In essence, the legislative purpose was to impose a statutory penalty at a severity level that would secure statutory compliance by lessors.

It is evident from plaintiffs’ leases that defendant was fully aware of its legal obligation to pay interest on security deposits. As mentioned above, the lease unambiguously stated that the rent amount per month and the security deposit would be $300. Clearly, the stamped provision and defendant’s explanation of its meaning are an attempt to avoid paying the interest. We conclude that, to the extent that defendant tried to circumvent the mandates of the statute, it willfully refused to pay the required interest. Therefore, plaintiffs are entitled to the full statutory penalty of costs, which the trial court awarded, attorney fees and an amount equal to the amount of the security deposit.

Accordingly, the order of the circuit court of Cook County is reversed.

Reversed.

McMORROW, J., concurs.

PRESIDING JUSTICE JIGANTI,

dissenting:

I respectfully dissent. By statute, the defendant-landlord was required to pay interest on the security deposit it held. (Ill. Rev. Stat. 1985, ch. 80, par. 121.) Also by statute a landlord “who willfully fails or refuses to pay the interest” shall be liable for an amount equal to the security deposit together with costs and reasonable attorney fees. (Ill. Rev. Stat. 1985, ch. 80, par. 122.) After cross-motions for summary judgment, the trial court entered judgment against the landlord in the amount of the interest of $15. The court, however, did not enter judgment for an amount equal to the security deposit nor did it award reasonable attorney fees. The plaintiffs appeal, contending that they are entitled to those items. The question presented is whether, under the statute, the landlord’s conduct was a willful failure or refusal to pay interest. The parties treat the hearing on the motion for a summary judgment as a trial and I will also.

When the suit was filed, there were other matters at issue but only the nonpayment of interest and failure to award attorney fees are here on appeal. The plaintiffs alleged that they repeatedly requested the interest and that the landlord willfully failed or refused to pay. The defendant-landlord did not answer the complaint but filed a motion for summary judgment. The essence of that motion is that there was no interest due. In the motion for summary judgment the defendant noted that the lease contained a provision which stated, “It is understood that the security deposit is net of security deposit interest, if any.” On the hearing on the cross-motions for summary judgment, the attorney for the landlord stated that the provision means that the yearly interest on the $300 at 5% is $15 per year or $1.25 per month. In fact, therefore, the rent is $300 plus $1.25 per month so that the rent actually paid by each plaintiff, $300 per month, was the net figure after the deduction for interest. During the course of the hearing the attorney for the plaintiff said that he thought the clause in the lease was against public policy; however, the plaintiff did not file a response to the defendant’s motion for summary judgment nor make any other challenge to the defendant’s interpretation of the clause.

The trial court ordered the payment of the interest but refused to order payment of penalties. The court did not make a specific finding concerning the issue of willful failure but did comment that the landlord had attempted to return the security deposit. The court’s order and comments imply a finding that the defendant did not willfully fail or refuse to pay.

While the trial court did not find that the conduct of the landlord was willful, the majority of this court did. Black’s Law Dictionary defines “willful” as voluntary or intending the result which actually comes to pass. As a further definition it states that willful is voluntary and intentional with the specific intent “to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law.” (Black’s Law Dictionary 1434 (5th ed. 1979).) The author of an article in the University of Illinois Law Forum discusses the term “willful” in the context of security deposits. (Kalish, Residential Tenant Security Deposits: A Legislative Proposal, 1974 U. Ill. L.F. 569.) The author states that “wrongful” connotes that the deposit was retained when there is no right but that “willful” has the connotation that there is an intention to retain wrongfully. (1974 U. Ill. L.F. at 606 n.117.) Further, the author states that where the landlord makes an innocent mistake, the remedy is to allow the tenant to recover the deposit. Only if the landlord acts willfully should he be subjected to severe penalties. 1974 U. Ill. L.F. at 607.

The trial court, in refusing to impose the statutory penalty of an amount equal to the security deposit along with attorney fees, impliedly found that the landlord was not motivated by bad purpose or an intent to retain wrongfully. A finding that the landlord’s conduct was not willful is amply supported by the evidence. The landlord attempted to return the security deposit. Further, the plaintiff did not challenge the landlord’s contention that the $300 rent that was collected was net rent after deducting the security deposit interest of $1.25. There is no suggestion as to what else this provision in the lease might mean.

I believe it was the intent of the legislature that the meaning of the phrase “willfully fails or refuses to pay” is that in order to penalize the landlord there must be an intention to retain wrongfully. The trial court found none and I would defer to the judgment of the trial court.