text:
    BEARD IMPLEMENT COMPANY, INC., Plaintiff-Appellee, v. CARL KRUSA, Defendant-Appellant.
    Fourth District
    No. 4—90—0487
    Opinion filed February 21, 1991.
    Rehearing denied March 20, 1991.
    Dwight H. O’Keefe III and Emmet A. Fairfield, both of Brown, Hay & Stephens, of Springfield, for appellant.

      McClure, Brannan & Hardwick, of Beardstown (Thomas J. Brannan, of counsel), for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

This action involves an alleged breach of contract between plaintiff seller, Beard Implement Company, Inc., a farm implement dealership, and defendant buyer, Carl Krusa, a farmer, for the purchase of a 1985 Deutz-Allis N-5 combine. The dispositive issue on appeal is whether the trial court in a bench trial erred in finding a contract existed between the parties. Specifically, defendant contends that plaintiff never accepted defendant’s offer to purchase the combine. We agree and reverse.

At trial, defendant testified that between December 20 and December 23, 1985, he had several conversations with plaintiff’s representatives concerning the purchase of a new combine. Defendant owned a 1980 Deutz-Allis N-5 combine at that time. In fall 1985, both spindles on his combine had broken and defendant spoke with plaintiff’s representatives about repairing them.

On December 23, 1985, defendant met with plaintiff’s representatives at plaintiff’s office in Arenzville, Illinois. Defendant testified that one of plaintiff’s representatives, either Jim Beard or Gerry Beard, filled out a purchase order for a new combine for the price of $52,800 cash and the trade-in of the combine defendant then owned. (See appendix for a copy of this order.) Defendant signed the Allis-Chalmers purchase order, which was dated December 23, 1985. None of plaintiff’s representatives signed that order on December 23, 1985, or at any time thereafter. The bottom left corner of this order reads as follows:

DEALER’S SALESMAN
This order subject to acceptance by dealer.
Accepted by: _
DEALER”

At the same time defendant signed the purchase order, he also signed a counter check drawn on a local bank in the amount of $5,200. Defendant testified that because he did not have his checkbook, plaintiff provided him with the counter check. The check was undated and intended to represent a down payment on the combine. Defendant testified that the check was not dated because he was to call plaintiff later and let plaintiff know if he wanted to proceed with the transaction. At that time, plaintiff would put a date on the check.

Defendant testified that he had misgivings over the Christmas weekend and, after discussing the situation with his wife, telephoned plaintiff’s manager, Duane Hess, on December 26, 1985, and told Hess that he did not wish to proceed with the transaction. Defendant explained to Hess that defendant and his wife had determined that “the price was too high” and they “did not want to go further into debt to finance the transaction.” Defendant testified that Hess told him that if defendant thought the combine was too expensive, Hess would let defendant out of the deal. Hess did not indicate whether he had signed the order.

Earlier on December 26, 1985, defendant had met with a representative of Cox Implement Company. Defendant identified a copy of the order form that one of Cox’s salesman had filled out. This order was dated December 26, 1985, but was signed on December 27. Defendant testified that he told Cox’s salesman that his price was too high and that defendant could not go through with either that bid or plaintiff’s bid. However, after Cox’s quoted price was reduced and the figures on the purchase order were scratched out, defendant signed the purchase order with Cox on December 27, 1985. Defendant stated the agreement with Cox was for the same model combine he was negotiating for with plaintiff but at a lower price. He wanted to consummate the transaction by December 31, 1985, in order to take advantage of the investment tax credit.

Defendant wrote a letter to plaintiff that was dated December 26, 1985, but sent on December 27, 1985. That letter read as follows:

“Dec. 26, ’85
Dear Sirs:
As I told you by phone on Dec. 26, ’85, I do not wish to purchase the 1985 N-5 combine we talked about so please send me the uncashed counter check on the Bank of Bluffs for the amount of $5,200. Since my ‘Purchase Order Sheet’ had not yet been signed by the dealer rep, the check wasn’t cashed before notification, & the combine wasn’t picked up, the [inconvenience] should have been slight.
Feel free to consult my attorney, John D. Coonrod, for details. Again, excuse these changes of events.
Sincerely,
Carl W. Krusa
(FOR ‘K’ FARMS)”

Defendant testified that Jim Beard visited defendant at his farm around lunchtime on December 27, 1985. During this visit, Jim told defendant, “There’s no problem, Carl, just please send a check to Tony Thomas for his time explaining the differences between models and options.” Defendant recalled that their conversation was friendly and that Jim told him something to the effect that, “Carl, we maybe lost a little bit of commission on this, but don’t worry about it. I’ll make it up on the next sales.” Defendant signed the contract with Cox later that afternoon.

Defendant testified that when he spoke with Hess on the evening of December 26, Hess did not indicate that he had signed the order that had been signed earlier by defendant. Defendant testified that in his letter to plaintiff, he enclosed a check for $100 made payable to Thomas for Thomas’ time. Defendant believed that once this sum was paid, he was released from any obligation to plaintiff seller.

Jim Beard testified that in fall 1985, he approached defendant several times about purchasing a new combine. Jim testified that he again spoke with defendant about purchasing a new combine at plaintiff’s Arenzville office at 3:30 or 4 p.m. on December 23, 1985. Gerry Beard was also present. Jim stated that he did not have the authority to sell the combine at a given price; only Gerry and Hess had that authority. The price quoted by Gerry to defendant was $52,800 and the trade-in of defendant’s existing combine. Jim identified the purchase order bearing defendant’s signature. Jim filled in all the other information on that order.

Jim testified that defendant did not make any statements that he was going to consider the purchase further after signing the purchase order. Jim also stated that defendant did not make any statements to the effect that the purchase order was not to be considered a completed contract.

Jim identified the counter check payable to plaintiff for $5,200. He stated that he filled out the check and defendant signed it, but that he forgot to fill in the date on the check. Jim did not recall any statement made by defendant that the check should be held. Jim recalled that the purchase order and check were signed at approximately 5:30 p.m. He stated that defendant was not threatened or told that he could not leave the office until he signed the order. Jim stated that he would not have signed the order if defendant had said anything about reserving the right to call back later and cancel the deal.

Jim next spoke with defendant on December 27, 1985. Hess told Jim that defendant did not want to buy the combine and asked Jim to visit defendant. Jim met with defendant that same day and asked defendant why he could not buy the combine. Defendant told him that he could not afford it. Jim stated that defendant did not mention that he had purchased a combine from someone else.

On cross-examination, Jim admitted that he did not sign the purchase order which defendant had signed. He testified that Gerry and Hess are authorized to accept offers on behalf of plaintiff, but that neither one signed the order.

Gerry Beard testified that defendant came to plaintiff’s office in the afternoon of December 23. Gerry stated that he attempted to persuade defendant to purchase a new combine. Gerry testified that he offered to sell the new combine to defendant for $52,800 and that defendant replied, “I’ll take the deal.” Defendant then signed the order and counter check and left plaintiff’s offices.

Gerry stated that he is authorized to accept contracts on behalf of plaintiff. He testified that he accepted the contract with defendant. Gerry stated that defendant did not indicate, after signing the counter check and purchase order, that the transaction was not a completed deal.

On appeal, defendant argues that the trial court erred in finding that a contract existed between him and plaintiff for the purchase of a combine. Defendant argues plaintiff never accepted defendant’s offer to purchase the combine because the purchase order defendant signed required a signature by a “dealer” on behalf of plaintiff for acceptance and none of plaintiff’s representatives ever signed that order. Accordingly, defendant’s subsequent refusal to “go through with the deal” constituted a valid revocation of his offer.

Plaintiff argues that a contract existed between the parties even before their agreement was reduced to writing. Essentially, plaintiff contends that after the verbal agreement was reached, the terms of that agreement were memorialized on the purchase order, which was then signed by defendant. Further, plaintiff argues that this verbal agreement was evidenced by a counter check, which was also signed by defendant and which represented a down payment on the combine. Plaintiff asserts that it accepted both the purchase order and the down payment by placing those documents in its office.

In deciding whether the offer in the present case has been accepted, this court must first identify both the offeror and the offer. A treatise on contract law provides some guidance on this issue: “A [] problem arises when A, through a salesman, has frequently solicited orders from B, the contract to arise when approved by A at A’s home office. As we have seen in this situationf,] B is the offeror and A the offeree.” J. Calamar! & J. Perillo, Contracts §2 — 18, at 85 (3d ed. 1987).

In Foremost Pro Color, Inc. v. Eastman Kodak Co. (9th Cir. 1983), 703 F.2d 534, the court considered whether a contract existed based on two unsigned purchase orders. The district court had concluded that no contract existed because the purchase orders were merely offers to buy, inviting acceptance either by a prompt promise to ship or by prompt or current shipment. (Foremost, 703 F.2d at 538.) The court of appeals agreed and stated that the weight of authority suggests that purchase orders are not enforceable contracts until accepted by the offeree. Foremost, 703 F.2d at 539.

In the instant case, the purchase order form signed by defendant constitutes an offer made by defendant to plaintiff. Thus, this court needs to determine whether defendant’s offer was accepted by plaintiff.

Section 2 — 206 of the Uniform Commercial Code — Sales (Code) states the following:

“(1) Unless otherwise unambiguously indicated by the language or circumstances
(a) an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances;
(b) an order or other offer to buy goods for prompt or current shipment shall be construed as inviting acceptance either by a prompt promise to ship or by the prompt or current shipment of conforming or non-conforming goods, but such a shipment of non-conforming goods does not constitute an acceptance if the seller seasonably notifies the buyer that the shipment is offered only as an accommodation to the buyer.
(2) Where the beginning of a requested performance is a reasonable mode of acceptance an offeror who is not notified of acceptance within a reasonable time may treat the offer as having lapsed before acceptance.” (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 206.)

For the purposes of the present case, the key word in this statute is the term “unambiguously.” If defendant’s offer contained on the purchase order is unambiguous in inviting acceptance only by the signature of plaintiff’s “dealer,” no contract exists until the purchase order is signed accordingly. If, however, defendant’s offer is ambiguous in inviting plaintiff’s acceptance, a contract between plaintiff and defendant could be found to exist.

On appeal, defendant has cited several cases supporting the argument that the purchase order he signed unambiguously invites acceptance only by signature of plaintiff’s “dealer.” One such case is Brophy v. City of Joliet (1957), 14 Ill. App. 2d 443, 144 N.E.2d 816, which involved the sale of revenue bonds. In that case, the court stated that where an offer requires an acceptance to be made in writing, no other form of acceptance can be made. The offer in Brophy read as follows:

“ ‘The signed acceptance of this proposal shall constitute a contract between the undersigned and the city ***. ***
□Accepted for and on behalf of ***, which is hereby acknowledged by the duly, qualified officials.
[] -
Mayor
[] -
City Clerk’ ”
Brophy, 14 Ill. App. 2d at 448, 144 N.E.2d at 819.

In La Salle National Bank v. Vega (1988), 167 Ill. App. 3d 154, 520 N.E.2d 1129, the court dealt with a real estate sales document which was signed by the seller as offeror and clearly stated that a contract would be in full force upon execution by the purchasing trust. The court held that the document did not constitute a valid contract in the absence of acceptance by the written execution of the purchasing trust. The court noted that an offeror has complete control over his offer and its terms of acceptance, and no other mode may be used where a written acceptance is required. La Salle National Bank, 167 Ill. App. 3d at 161-62, 520 N.E.2d at 1133.

In Zinni v. Royal Lincoln-Mercury, Inc. (1980), 84 Ill. App. 3d 1093, 406 N.E.2d 212, the court wrote the following:

“Although the modes of a valid acceptance may be varied, the requirement of an acceptance by the offeror still exists. *** Where an order form, containing the buyer’s offer, requires the acceptance of the seller, no contract will exist until the seller has manifested acceptance of the offer. [Citation.] The record before us contains no manifestation of the defendant’s acceptance of the plaintiff’s offer. Although the order form contains a space for the defendant’s signature, defendant did not sign it. While we believe defendant’s acceptance may be manifested in ways other than its signature, plaintiff’s complaint fails to allege an alternative manifestation of defendant’s acceptance. Absent an acceptance by the defendant, no contract existed between the parties.” Zinni, 84 Ill. App. 3d at 1094-95, 406 N.E.2d at 214.

In Southwestern Stationery & Bank Supply, Inc. v. Harris Corp. (10th Cir. 1980), 624 F.2d 168, the court held that the seller’s purchase order, which provided that the order was “ ‘subject to acceptance by Seller’ ” and that “ ‘Seller shall mail to Purchaser a signed duplicate copy hereof, and the same shall constitute the entire contract between the parties,’ ” unambiguously specified the proper method of acceptance. (Southwestern Stationery, 624 F.2d at 169.) Therefore, in absence of a written acceptance by the seller, there was no contract for the sale of a printing press. The face of that purchase order stated the following:

“ ‘This order is hereby accepted and dated at Seller’s Cleveland, Ohio, Office on _ HARRIS CORPO-
RATION, a Delaware Corporation Sheet Fed Press Division, Seller
By_’ ”
Southwestern Stationery, 624 F.2d at 170.

A case most like the present one is Antonucci v. Stevens Dodge, Inc. (N.Y. Civ. Ct. 1973), 73 Misc. 2d 173, 340 N.Y.S.2d 979, where the civil court of the City of New York wrote:

“When the offeror extends a promise and asks for a promise in return, and where the offeree accepts the offer by making the requested promise, the agreement is called a bilateral contract. Where the agreement takes the form of a written instrument, the acceptance is effective only when the document has been signed and delivered, unless it was clearly the intention of the parties that the earlier verbal agreement be binding and that the writing act merely as a memorandum or better evidence of the oral contract.
The printed form agreement before the Court was drafted by the defendant and contains the following clause: ‘This order cancels and supersedes any prior agreement and as of the date hereof comprises the entire agreement relating to the subject matters covered hereby ***.’ It is clear that the defendant, the offeree, intended that this form agreement be deemed to be the entire contract and any verbal agreements, if contrary to the terms of the written agreement, not be binding.
In the bottom lefthand corner of the agreement there is printed in large underlined type: ‘... THIS ORDER SHALL NOT BECOME BINDING UNTIL ACCEPTED BY DEALER OR HIS AUTHORIZED REPRESENTATIVE.’ *** At the bottom of the paragraph containing this sentence is a blank line under which is printed ‘purchaser’s signature.’ Plaintiff signed on this line. Below this is a blank line which has printed before it ‘Accepted By.’ Under this line is printed ‘Dealer or his Authorized Representative.’ This line bears no signature.
On the back of the agreement are printed ten conditions. *** Paragraph 10 states: ‘This order is subject to acceptance by the dealer, which acceptance shall be signified by the signature of Dealer, Dealer’s Manager or other authorized signature on the reverse side hereof.’
It is obvious that the parties intended the agreement to be bilateral and that the offer by the plaintiff to purchase the pickup be deemed accepted by the defendant only when he or his authorized representative signed the order.
The presenting of the order by the dealer was an invitation to the plaintiff to make an offer to purchase the pickup truck. The signing of the order by the plaintiff constituted an offer by him to purchase the truck. By the printed terms of the agreement only the signature of the defendant or its authorized representatives would constitute acceptance of the plaintiff’s offer and thus create a binding bilateral contract. In a bilateral contract it is essential that the fact of acceptance be communicated to the offeror. [Citations.] "The failure of the defendant or his representative to sign the order is conclusive proof that the defendant did not accept the offer. [Citation.] It was the defendant who drafted the agreement and set forth the manner in which it would accept an offer. The fact that defendant ordered and accepted delivery of a pickup truck does not constitute acceptance under the terms of the agreement. By the terms of the agreement only the signature of the defendant could constitute acceptance. The plaintiff’s refusal to accept the truck constituted a valid revocation of his offer. [Citation.] As a general rule, an offer may be revoked or withdrawn at any time before it is accepted with certain exceptions set forth in the Uniform Commercial Code. This case does not fall within any of the code exceptions.
The Court finds by a fair preponderance of the credible evidence that an enforceable bilateral contract was not formed because of defendant’s failure to accept plaintiff’s offer and that plaintiff validly revoked his offer.” Antonucci, 73 Misc. 2d at _, 340 N.Y.S.2d at 982-83.

Plaintiff counters defendant’s argument by contending that plaintiff was the one to offer the combine to defendant and defendant accepted plaintiff’s offer by signing a counter check and giving that check to plaintiff as a down payment on the combine. We are unpersuaded.

We construe section 2 — 206 of the Code as giving approval to an ancient and cardinal rule of the law of contracts: the offeror is the master of his offer. An offeror may prescribe as many conditions or terms of the method of acceptance as he may wish, including, but not limited to, the time, place, and manner. (Kroeze v. Chloride Group Ltd. (5th Cir. 1978), 572 F.2d 1099, 1105.) We also note that contracts are generally construed against the party who drafted the document (see Restatement (Second) of Contracts §206, at 105 (1981)) and that plaintiff drafted the purchase order in the present case, and then gave it to defendant to use for his offer to purchase the combine.

Based on the foregoing, we conclude that the purchase order in this case “unambiguously” required the signature by plaintiff’s “dealer” in order to be a proper acceptance of defendant’s offer. Because plaintiff’s “dealer” never signed the purchase order, no contract ever existed.

For the reasons stated, the judgment in favor of plaintiff is reversed.

Reversed.

LUND, P.J., and GREEN, J., concur.

APPENDIX


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    GRACE S. BAILEY, Indiv. and as Ex’x of the Estate of Weldon J. Bailey, Deceased, Plaintiff-Appellee, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—90—0036
    Opinion filed February 21, 1991.
    Rehearing denied March 21, 1991.
    Stephen W. Thomson and Curtis L. Blood, both of Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge, P.C., of Edwardsville, for appellant.
    Evan A. Strawn, of Bloomington, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff Grace Bailey, individually and as executrix of the estate of her deceased husband, Weldon Bailey, brought this action for declaratory judgment regarding the amount of insurance coverage available under the terms of an excess insurance policy issued by defendant insurance company. Defendant filed a motion to dismiss this cause as barred by a prior judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2— 619(a)(4)) or, alternatively, for judgment on the pleadings (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615(e)). The trial court denied the motion. Defendant filed this permissive interlocutory appeal (107 Ill. 2d R. 308). The question of law presented is whether the present action is barred on the grounds of res judicata. We hold it is not and affirm.

On April 21, 1980, plaintiff’s husband was killed when struck by an uninsured motorist. At the time of the accident, the Baileys had automobile insurance coverage for all four of their cars from defendant, State Farm Fire and Casualty Company (State Farm). The terms of the base or underlying policy, which was renewable on a regular six-month basis, provided a liability coverage limit for bodily injury and death of $100,000 per person or $300,000 per occurrence ($100,000/$300,000) and uninsured motorist (UM) coverage of $10,000/ $20,000, until it was renewed on March 21, 1980 — one month prior to the accident — at which time the UM coverage was increased to equal the bodily injury limits. The renewed base policy then met the requirements of an amendment to section 143a of the Illinois Insurance Code (Code) (Ill. Rev. Stat., 1980 Supp., ch. 73, par. 755a). The amendment, effective March 1, 1980, and applicable to all policies issued or renewed after that date, stated no auto insurance policy for liability for bodily injury or death shall be issued unless the insured is provided UM coverage equal to the bodily injury and death coverage, subject to rejection by the insured. Ill. Rev. Stat., 1980 Supp., ch. 73, par. 755a(1).

Prior to renewal of the base policy dated March 21, 1980, on September 21, 1979, the Baileys had purchased, from defendant, an excess automobile insurance policy, “Success Protector Policy No. 73— 08 — 7416,” renewable on a yearly basis.

The terms of this excess policy, secured in excess of the underlying policy, provided for personal liability coverage of $1 million, and UM coverage of $35,000 “less the retained limit — Coverage U as defined.” The policy stated the following as to “Coverage U”:

“2. COVERAGE U: UNINSURED MOTORISTS This Company will pay all sums up to $35,000, less the amount of the Retained Limit — Coverage U, which the Insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile or an underinsured automobile, provided:
(a) this Company’s liability hereunder shall be only in excess
of the Retained Limit — Coverage U, and
(b) coverage hereunder for loss involving such uninsured or underinsured automobile shall apply only in accordance with the terms and conditions of underlying Uninsured Motorists insurance afforded to the Insured at the time of loss, or in the absence thereof, Uninsured Motorists insurance afforded to the Insured as of the effective date of this policy.”

“Retained Limit — Coverage U” was defined as:

“The greater of:
(1) the total amount of insurance payable to the Insured under other Uninsured Motorist, Underinsured Motorist or automobile liability insurance; or
(2) the minimum amount specified by the financial responsibility law of the state in which the accident shall occur.”

The procedural history of the litigation between the parties is as follows. In 1980, plaintiff sued defendant for declaratory judgment in Madison County case No. 80 — MR—382, alleging (1) the umbrella policy issued by defendant was a motor vehicle policy under section 143a of the Code (Ill. Rev. Stat. 1981, ch. 73, par. 755a), and (2) defendant had failed to offer the amount of UM coverage required by that section by not raising the UM coverage in the excess coverage policy from $35,000 to the $1 million bodily injury and death coverage. After amending several times, the amended complaint was dismissed with leave to amend, and thereafter plaintiff filed a motion to voluntarily dismiss her complaint without prejudice, which was allowed, while defendant’s motion for dismissal with prejudice was denied. The insurer appealed, and the trial court’s decision was upheld by the Fifth District Appellate Court in Bailey v. State Farm Fire & Casualty Co. (1985) , 137 Ill. App. 3d 155, 484 N.E.2d 522 (Bailey I), appeal denied (1986) , 111 Ill. 2d 566.

In 1986, plaintiff filed a first-amended seven-count complaint against defendant insurer in Peoria County case No. 84 — L—2185. That complaint, as shown in the record on appeal, alleged defendant owed plaintiff a duty to offer UM coverage equal to the limit for bodily injury and death stipulated on the excess policy. It was based on the same accident and injury as is the instant complaint. Count I alleged (1) defendant knew, given the relationship of the underlying policy renewed (and upgraded in UM coverage) March 21, 1980, and the excess policy, that UM coverage of the excess policy was rendered illusory; but defendant (2) took the insureds’ premium and failed to inform them of the option to upgrade such coverage in the excess policy, constituting unjust enrichment. Count II contained many of the allegations of count I. This count further alleged that defendant failed to make an offer of UM coverage in the manner and form required bylaw when renewing the underlying policy on March 21, 1980, and, with knowledge of the consequences of its actions, “failed to offer [the Baileys] U.M. coverage in an amount equal to the Baileys’ total bodily injury liability limits set forth in the combination of the underlying and excess policies ($1,000,000 per person).” Count II also alleged State Farm did not obtain a written rejection of such coverage. Count III alleged that but for defendant’s negligent failures to act, including its failure to inform the insureds of the availability of additional UM coverage under the excess policy, the insureds would have increased their UM coverage under the excess policy prior to the fatal accident. Count IV alleged defendant’s conduct amounted to a breach of its duty of good faith and fair dealing. Count V alleged defendant had a fiduciary duty to the insureds, and breached that duty. Count VI essentially alleged defendant’s course of conduct amounted to common law fraud. Count VII alleged defendant’s course of conduct violated the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 1211/2, par. 261 et seq.).

Counts I and II requested reform of the same excess policy as is involved here, so that it would afford UM protection of $1 million per person. These counts also requested submission to arbitration of the issues of liability and damages arising from the fatal accident involving Weldon J. Bailey, actual, compensatory, and punitive damages as appropriate, interest at the legal rate, costs, and “such other and further relief, both general and special, legal and equitable,” to which plaintiff might establish she is entitled. Counts III through VII requested a finding that “[p]laintiff has been damaged in an amount equal to that which the uninsured motorist is legally obligated to pay for the claims arising out of the wrongful death of WELDON J. BAILEY, up to $1,000,000,” an order requiring determination of the amount of such damages by arbitration, other appropriate actual, compensatory, and punitive damages, and court costs. These counts also contain the general prayer for other unspecified relief which appears in counts I and II.

The trial court granted judgment on the pleadings for the defendant, and the Third District Appellate Court affirmed. (Bailey v. State Farm Fire & Casualty Co. (1987), 156 Ill. App. 3d 979, 985, 509 N.E.2d 1064, 1068 (Bailey II), appeal denied (1987), 117 Ill. 2d 541.) The Third District Appellate Court held defendant’s duty to offer UM coverage on the excess policy was controlled by the statute as it existed on September 21, 1979, the day the excess policy vested, and neither the passage of the amendment effective March 1, 1980, nor the renewal of the underlying policy on March 21, 1980, affected the UM coverage under the excess policy.

On March 1, 1988, plaintiff filed the instant complaint for declaratoiy judgment against the defendant, McLean County case No. 88— CH — 24. The complaint alleged that (1) the Baileys had four autos, each covered by a separate policy meeting the underlying insurance requirements of the declarations page of the excess policy, with combined UM coverage of $220,000; (2) State Farm, in calculating what it will pay and the definition of “Retained Limit — Coverage U,” regards the “retained limit” as including the amounts payable from the four underlying policies ($220,000), which must then be deducted from the $35,000 UM coverage of the excess policy, leaving nothing from which to make a payment under the excess policy; (3) contrary to State Farm’s position, the plaintiff interprets the excess policy to mean the “retained limit” is to be deducted from total damages (as opposed to $35,000), leaving at least $35,000 for payment of damages; (4) the agreement to pay “up to $35,000” is applicable to all four underlying policies which, when added together or “stacked,” amounts to $140,000 in additional UM protection under the excess policy, absent a limitation in the excess policy to limit such application to one and only one underlying policy in the case of multiple insured vehicles; and (5) State Farm breached its contract by denying it owes plaintiff any amount under the UM provisions of the excess policy, thereby giving rise to an actual controversy. Plaintiff prayed for a declaratory judgment construing the excess policy and a determination that $140,000 of additional UM protection is available to the plaintiff thereunder. This complaint also includes a general prayer for other and further relief necessary to permit the parties to enforce their rights and obligations under the excess policy.

The defendant filed a motion to dismiss on the basis of res judicata (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(4)), or in the alternative for judgment on the pleadings. This motion was denied by the trial court on June 29, 1988. Thereafter, a first-amended complaint was filed, count II of which was subsequently stricken; and the court thereafter denied defendant’s motion to reconsider its June 29, 1988, order on the issue of res judicata, and later filed a statement for the interlocutory appeal.

The doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction is an absolute bar to a subsequent suit involving the same claim, demand, or cause of action. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251, 461 N.E.2d 959, 961-62.) In order for the doctrine to serve as an absolute bar to a subsequent action, it must be established “that the cause of action, the thing to be recovered and the parties are the same in both proceedings.” (Charles E. Harding Co. v. Harding (1933), 352 Ill. 417, 426, 186 N.E. 152, 155; see also Wright v. Griffey (1893), 147 Ill. 496, 498, 35 N.E. 732, 733.) Also, the evidence necessary to sustain a verdict for the plaintiff in the second proceeding must suffice to sustain the verdict which the plaintiff requested in the first proceeding. In other words, the claims asserted in the first and second proceedings must be based on a common core of operative facts. Rodgers v. St. Mary’s Hospital (1990), 198 Ill. App. 3d 871, 880, 556 N.E.2d 913, 919.

Our research has failed to reveal any cases dealing with the applicability of the doctrine of res judicata to the precise factual situation presented by the case at bar. Other decisions, however, have held the doctrine is inapplicable to somewhat similar factual situations. In Harding (352 Ill. at 424-28, 186 N.E. at 154-56), for instance, the court held a decision in an injunction suit which involved issues concerning a contract’s terms and legal effect did not bar a subsequent action seeking to have the same contract held invalid on the basis of duress, constructive fraud, and overreaching of one of the parties to the contract. Furthermore, an unsuccessful action based on an alleged compromise settlement agreement or contract to settle claims arising under an insurance policy does not preclude the insured from later filing a suit seeking payment of the same claims under the terms of the same insurance policy. 18 G. Couch, Insurance §74:806, at 1079 & n.9 (Rhodes rev. ed. 1983), citing Hines v. Thomas Jefferson Fire Insurance Co. (Ky. 1953), 267 S.W.2d 709, 711.

The present action fails all of the tests which are applicable in determining whether the broad bar of the doctrine of res judicata applies. The claims and demands asserted in the Peoria County action were premised on (1) a change in statutory law, (2) State Farm’s alleged failure to inform the insureds of the consequences of that change, and (3) the omission from the excess policy of provisions which reflected the change in statutory law. In the seven counts of the complaint in the Peoria County action, plaintiff asserted causes of action based on statute, equitable principles, and principles of tort law. By contrast, the complaint involved in the present case is based solely on the language of insurance policies issued by defendant and asserts a cause of action premised on principles of contract law. Although counts III through VII of the Peoria County action requested a finding that plaintiff sustained monetary damages, and a decision favorable to plaintiff in the present action would also provide a basis for awarding her monetary damages, the maximum amounts of damages and the bases for awarding them are vastly different. In the Peoria County action, the ultimate basis for awarding damages would have been enhanced UM coverage under terms of the amended statute; in the present action, the basis for any monetary award would be the language of the insurance policies themselves, unaffected by the statutory amendments concerning UM coverage.

Furthermore, the evidence needed to sustain a judgment for plaintiff in the present action would not have been sufficient to sustain a judgment in plaintiffs favor under the theories asserted in the Peoria County action. In the present action, the evidence of major relevance to plaintiff’s claims would be State Farm’s refusal to pay the amounts which plaintiff claims are due under the excess policy and any parol evidence concerning the meaning of the policy which the trial court would hold admissible. This evidence would not have been sufficient to sustain a judgment for plaintiff in the first action. In order to obtain a recovery in that suit, it would have been necessary for plaintiff to present evidence concerning State Farm’s failure to offer the insureds enhanced UM coverage pursuant to the amended statute. This evidence would not have been relevant to any issue in the present case.

In support of its argument that res judicata bars the present action, State Farm relies principally on Downen v. Country Mutual Insurance Co. (1989), 181 Ill. App. 3d 716, 718-19, 537 N.E.2d 445, 446-47. We agree that, in Downen, the facts are quite similar to those in the case at bar. We nevertheless find Downen inapposite.

First, the res judicata discussion there was dicta inasmuch as the Downen court affirmed the dismissal on the basis that plaintiffs failed to allege facts to give them standing to bring suit, and then went on to address the circuit court’s further ruling that the action was barred by res judicata. Second, the prior action underlying Downen was brought by David Barrett to “stack” underinsured (UIM) • motorist coverage under policies owned by his parents; plaintiff appealed in that action and the court “held that David Barrett could not ‘stack’ the underinsured motorist coverage and specifically found that the amount of underinsured coverage available to Barrett under defendant’s policies was $100,000.” (Downen, 181 Ill. App. 3d at 717, 527 N.E.2d at 446 (discussing the appellate decision in Barrett v. Country Mutual Insurance Co. (1988), 165 Ill. App. 3d 1167 (unpublished order under Supreme Court Rule 23), appeal denied (1988), 121 Ill. 2d 567, 526 N.E.2d 827).) Barrett’s parents subsequently brought the second action, apparently seeking reformation of the same policies based on the insurer’s alleged failure (1) to offer UIM coverage to them in the amount required by the Code, (2) to advise UIM coverage was available in the same amounts as bodily injury liability coverage, and (3) to specify the amount of premiums and nature and extent of UIM coverage available. Hence, the dismissal of the second action could as easily have been upheld based on the narrower bar of the collateral estoppel, or estoppel by verdict, branch of res judicata because there was a specific finding in the prior case that the amount of coverage available to plaintiff Barrett under defendant’s policies was $100,000 — a dollar limit which was essentially subjected to collateral attack in Downen.

We hold the present litigation does not involve the same claims, demands, or causes of action as the Peoria County litigation to which plaintiff and defendant were parties. Moreover, plaintiff's claims in the present case and in the Peoria County litigation are not premised on a common core of operative facts. Thus, the present action is not barred by the doctrine of res judicata.

The circuit court orders which denied State Farm’s motion to dismiss and motion to reconsider are affirmed.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


author: JUSTICE INGLIS

text:
      In re MARRIAGE OF BARBARA RUCHALA, n/k/a Barbara Ross, Petitioner-Appellant, and ALLAN RUCHALA, Respondent-Appellee.
    Second District
    No. 2—90—0521
    Opinion filed February 21, 1991.

      Lynda J. Khan, of Chicago, for appellant.
    No brief filed for appellee.
    Robert D. Boyd, of Woodridge, guardian ad litem.

   JUSTICE INGLIS

delivered the opinion of the court:

Petitioner, Barbara Ross, appeals from an order of the circuit court of Du Page County which determined that she should not be granted visitation with her three minor children and found her in contempt of court. Petitioner contends that the trial court’s ruling on the visitation issue: (1) improperly shifted the burden of proof to her; and (2) was manifestly erroneous. In addition, petitioner argues that the court violated her due process rights when it held her in criminal contempt of court.

Initially, we note that respondent, Allan Ruchala, has not filed a brief in this case. We will review this case in conformance with the guidelines set out in First Capitol Mortgage Corp. v. Talandis Con struction Corp. (1976), 63 Ill. 2d 128, 133.

The parties’ marriage was dissolved on August 19, 1981. Following the dissolution, the parties have returned to court on numerous occasions, often the result of disputes concerning visitation with the couple’s three minor children. The most recent dispute, which is the subject of this appeal, occurred when respondent filed a verified petition for an order of protection on April 4, 1988. Respondent alleged that petitioner was obligated to return the three children to him on April 2, 1988, but refused to do so. The children were not returned as of the filing of the petition. The trial court entered an emergency order of protection based on the allegations contained in the petition. On April 14,1988, the court entered a plenary order of protection.

On August 31, 1988, respondent filed a petition for rule to show cause, alleging that petitioner failed to comply with the court’s April 14, 1988, order of protection. On January 6, 1989, before a hearing was held on respondent’s petition, the attorney for the minor children filed an emergency petition to suspend visitation. The basis for this emergency motion was petitioner’s alleged failure to return the children at the agreed time and telling the children to lie to the police, both of which caused the children to suffer “great emotional distress' and concern.” The court set March 22, 1989, for a hearing “on all pending matters.” Following numerous continuances, the hearing finally began on April 12,1990.

Petitioner testified at the hearing that she picked up her three children from respondent’s home on April 1, 1988, and telephoned the Department of Children and Family Services (DCFS) shortly thereafter due to her concerns with the youngest child. On April 2, 1988, petitioner attempted to call respondent, but was unable to contact him. She was able to speak to him on the following day, but respondent “threatened [her] with jail” if she spoke to anyone and then hung up on her. On April 4, 1988, petitioner stated that a DCFS caseworker came to her home to speak with the children. Following the interview, petitioner informed the children that they would have to return to respondent’s home. At this time, the children “went wild” and pleaded with her to allow them to stay with her. Petitioner telephoned the Skokie police department for assistance in returning the children to their father. The children were eventually taken to the Lombard police department before they were returned to respondent.

Respondent testified that he was the father of the children and was awarded custody of them in September 1985. He indicated that he allowed petitioner to have visitation for the Easter weekend beginning on April 1, 1988. Respondent attempted to contact petitioner on April 2, 1988, to find out when she would return the children to him. However, he was unable to speak with her until approximately 8:30 p.m. on April 3, 1988. At this time, petitioner informed respondent that she would not return the children until after they saw a counselor on the following day. Respondent indicated that the children were supposed to be returned by 6 p.m. on April 2, 1988, due to the Easter holiday. Respondent filed a petition for an order of protection on April 4, 1988, due to petitioner’s failure to return the children.

Several other witnesses also testified at the hearing, including police officers, a physician, a DCFS caseworker, and the three minor children. On April 20, 1990, the trial court entered an order denying petitioner’s request to set a visitation schedule. The court terminated her rights to visitation and allowed her to have contact with the children only if the children telephoned her. The court also reserved ruling on the issue of attorney fees. In addition, petitioner was found to be “guilty of wilful contempt of court” for failing to return the children on April 2, 1988, from their weekend visitation. Petitioner was sentenced to 30 days in the county jail as a result of the contempt order.

On May 14, 1990, petitioner filed her notice of appeal. Thereafter, attorneys involved in this case filed their petitions and affidavits for attorney fees. The record on appeal ends with an August 1, 1990, filing of a response to an attorney fee affidavit.

Before addressing petitioner’s arguments concerning the propriety of the trial court’s order on visitation rights, we must first determine whether we have jurisdiction to review this issue. An appellate court may only hear appeals from final judgments or orders, or in situations in which an exception specified in the supreme court rules is applicable. (Flores v. Dugan (1982), 91 Ill. 2d 108, 112; Village of Cary v. Paris (1988), 171 Ill. App. 3d 1072, 1073.) We find that we lack jurisdiction to consider this issue because the order appealed is not final and does not fall within any authorized exception.

In the present case, respondent filed a petition for a rule to show cause as a result of petitioner’s failure to return the children at the agreed time on April 2, 1988. The title of the petition, along with the prayer for relief, specifically sought attorney fees as a result of petitioner’s alleged violations of a previous court order. The trial court specifically found that petitioner violated the court’s order by failing to return the children on April 2, 1988. The court used this violation as a basis to decide the questions regarding visitation and to hold petitioner in contempt of court. The last paragraph of the order states: “[tjhat the issue of attorneys Fee’s [sic] is reserved until the filing of affavicts [sic] of the Attorneys and notice.” The record on appeal does not indicate if the attorney fees question has been resolved.

It is thus apparent that the attorney fees question is, for purposes of this appeal, still pending in the trial court. Supreme Court Rule 304(a) provides that an appeal may be taken from a final judgment as to fewer than all claims “only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.” (134 Ill. 2d R. 304(a).) The trial court did not make the requisite Rule 304(a) findings in this case. Since the order at issue in this case disposed of fewer than all claims, it is not final and appealable. See In re Marriage of Piceione (1987), 158 Ill. App. 3d 955, 963-64 (order on child support which reserved attorney fees dispute was not final and appealable); In re Marriage of Derning (1983), 117 Ill. App. 3d 620, 628-29 (order dissolving marriage and awarding maintenance and child custody was not final and appealable because the attorney fees issue was still pending in the trial court).

This case is another example of why Supreme Court Rule 341(e)(4)(ii) (134 Ill. 2d R. 341(e)(4)(ii)) was enacted. This rule requires a brief explanation in the appellant’s brief, under the heading of “Jurisdiction,” of the basis for the appeal.

The jurisdictional statement in petitioner’s brief reads, in its entirety: “This court has jurisdiction pursuant to Ill. Rev. Stat. Ch. 110A §303(a)(i).” However, the purpose of this statement is not merely to tell this court that it has jurisdiction. (Waitcus v. Village of Gilberts (1989), 185 Ill. App. 3d 248, 252.) Instead, the jurisdictional statement requirement was intended to provoke counsel to make an independent determination of the right to appeal before writing the briefs. (See Waitcus, 185 Ill. App. 3d at 252.) Had petitioner taken the time to write an explanatory statement of jurisdiction, she would have hopefully recognized that a claim of attorney fees requested in the pleadings and reserved for ruling in the court’s order remained pending in the trial court. We do not have jurisdiction to consider this claim at this time.

In making this determination, we are aware that we previously denied respondent’s motion to dismiss this appeal. Respondent correctly argued that the attorney fees issue remained pending in the trial court. However, respondent failed to realize that the contempt issue was, as we will discuss, immediately appealable and was not affected by the pending attorney fees issue. Thus, we could not grant respondent’s motion to dismiss the entire appeal.

As we indicated, it is our opinion that we have jurisdiction to decide petitioner’s final contention on appeal, namely, whether the trial court violated her due process rights when it found her guilty of criminal contempt of court. In general, an adjudication of contempt is considered to be final and appealable because it is collateral to and independent of the case in which it arises, as long as the sanction imposed does not directly affect the outcome of the principal action. (Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 414-15, cert. denied (1970) , 400 U.S. 926, 27 L. Ed. 2d 186, 91 S. Ct. 188; In re Marriage of Ryan (1989), 188 Ill. App. 3d 679, 682.) However, a contempt order is not appealable until the trial court imposes a sanction. Ryan, 188 Ill. App. 3d at 682; In re Marriage of Kitchen (1984), 126 Ill. App. 3d 192, 194.

In this case, the contempt order was collateral to and independent of the issue of visitation and did not directly affect the outcome in the visitation action. For example, the trial court could have made the same ruling on the -visitation issue and not have held petitioner in contempt of court. Given that the court imposed a sanction on petitioner, it is our opinion that the contempt order in this case was final and appealable.

In addressing the merits of this issue, we note that the trial court, in its written order, found that petitioner “has willfully and intentionally violated the Courts [sic] orders by her failure to return the children on 4-2-88 and is sentenced to 30 days in the County Jail.” Petitioner contends that the court’s contempt ruling was criminal in nature and, as such, the burden of proof should not have shifted to her.

Criminal contempt is conduct which is directed against the dignity and authority of the court. (People ex rel. Kazubowski v. Ray (1971), 48 Ill. 2d 413, 416, cert. denied (1971), 404 U.S. 818, 30 L. Ed. 2d 118, 92 S. Ct. 78; Cesena v. Du Page County (1990), 201 Ill. App. 3d 96, 112-13.) Conversely, civil contempt is coercive, and not punitive, in nature and usually involves failing to comply with a court order. (Cesena, 201 Ill. App. 3d at 113.) The contempt in the present case was criminal because the court was not attempting to coerce petitioner into returning the children, but instead was punishing her for failing to abide by several previous orders concerning visitation rights and schedules.

After making this determination, we must next decide whether the contempt was direct or indirect. Direct contempt arises from conduct which occurs in the presence of the judge, while indirect contempt involves acts which occur out of the court’s presence. (People v. L.A.S. (1986), 111 Ill. 2d 539, 543; Cesena, 201 Ill. App. 3d at 113.) In this case, the contemptuous conduct involved petitioner’s failure to return the children on April 2, 1988, in violation of a previous court order. This conduct occurred outside of the court’s presence and thus must be construed as indirect criminal contempt.

An indirect criminal contempt proceeding must conform to all of the procedural requirements and rights applicable to criminal trials. (In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 58.) Included among these rights are the right to be proved guilty beyond a reasonable doubt, the presumption of innocence, and the privilege against self-incrimination. Betts, 200 Ill. App. 3d at 58; In re Marriage of Wilde (1986), 141 Ill. App. 3d 464, 471.

Petitioner argues that her due process rights were violated when she was required to “show cause” as to why she should not be held in criminal contempt of court. Petitioner points out that this impermissibly shifted the burden of proof to her. We agree. As the Betts court stated, a person cannot be required to “show cause” as to why he or she should not be held in indirect criminal contempt of court because that person has a right not to testify based on the privilege against self-incrimination. (Betts, 200 Ill. App. 3d at 58-59.) Instead, the alleged contemnor is entitled to have the charges in the petition proved beyond a reasonable doubt. (200 Ill. App. 3d at 59.) Petitioner’s contempt adjudication, therefore, must be reversed in this case, as the burden of proof should not have been on petitioner to “show cause” as to why she should not be held in contempt of court.

In conclusion, we hold that we do not have jurisdiction to decide petitioner’s arguments with respect to the visitation portion of the order, as this is not final and appealable at this time. We do, however, have jurisdiction to decide petitioner’s challenge to her contempt citation and find that this portion of the order must be reversed.

Appeal dismissed in part; reversed in part.

WOODWARD and NICKELS, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL M. STEIGER, Defendant-Appellant.
    Second District
    No. 2—89—0513
    Opinion filed February 19, 1991.

      G. Joseph Weller, Steven E. Wiltgen, and Robert C. Cooper, all of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Following a bench trial in the circuit court of Du Page County, defendant, Michael M. Steiger, was convicted of driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501) and was sentenced to 10 days in the county jail, one year’s probation, and was fined $300. Defendant appeals, contending that he did not knowingly and voluntarily waive his right to a jury trial because the trial court did not admonish him concerning or inquire into his reasons for the waiver.

On December 23, 1987, defendant was issued traffic citations alleging that he had violated local ordinances by failing to stop at a stop sign, recklessly driving his automobile, and improperly operating a motor vehicle due to excessive tire friction, in addition to the above-mentioned driving under the influence of alcohol charge.

On April 11, 1989, defendant’s case came up for trial. After his case was called, defendant’s attorney stated: “I have had a conference with my client[.] [H]e has indicated to me that his choice is to proceed to trial by your Honor, and he is tendering a waiver of trial by jury; is that correct, Michael[?]” Defendant then responded, “Yes, sir.” Defendant also signed a written jury waiver form. The trial court accepted defendant’s waiver, but did not ask defendant any questions about the reasons for the waiver and did not admonish him concerning the consequences of the waiver.

Defendant’s case then proceeded to a bench trial after which he was found guilty of driving under the influence of alcohol. Defendant’s sole contention on appeal is that he did not knowingly and voluntarily waive his right to a jury trial. In support thereof, defendant points out that the trial court failed to admonish him concerning his right to a jury trial and failed to question him about his decision to waive this right. We disagree with defendant and affirm the trial court.

We first note that defendant did not raise this issue in his post-trial motion; therefore, the issue has not been properly preserved for review. (People v. Enoch (1988), 122 Ill. 2d 176, 186, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) However, we may review plain errors affecting substantial rights under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), even though the error may not have been brought to the trial court’s attention. (People v. Smith (1985), 106 Ill. 2d 327, 333.) We will consider the issue as it is presented in this case.

Under the Illinois Constitution an accused is guaranteed the right to a jury trial. (Ill. Const. 1970, art. I, §8.) In addition, section 103 — 6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 6) states that an accused has a right to a jury trial unless he or she understandably waives that right. Circuit courts have the duty of insuring that a defendant’s waiver of his right to a jury trial be made expressly and understandably. (Smith, 106 Ill. 2d at 334.) However, there is no set formula for determining whether this waiver was made knowingly, and thus the determination necessarily turns on the facts of each case. People v. Tucker (1989), 183 Ill. App. 3d 333, 334-35.

While it may be preferable for a trial court to advise a defendant of his right to a jury trial, the trial court is not constitutionally required to do so in order to maintain a valid waiver. (People v. Murrell (1975), 60 Ill. 2d 287, 291; see also Tucker, 183 Ill. App. 3d at 335.) Also, a trial court does not necessarily have to give a defendant an explanation concerning the ramifications of a jury waiver unless there is an indication that the defendant did not understand his right to a jury trial. (People v. Villareal (1983), 114 Ill. App. 3d 389, 392.) Our supreme court has recognized the validity of a waiver made by the defense counsel, in the presence of the defendant, and without objection by the defendant. (Smith, 106 Ill. 2d at 334.) Furthermore, a statement by the defense attorney, made in the presence of the defendant, is a sufficient record of the jury waiver. Tucker, 183 Ill. App. 3d at 335; People v. Burton (1984), 121 Ill. App. 3d 182, 183-84.

A defendant speaks and acts through his attorney; therefore, a trial court may rely on the defense attorney to execute his professional responsibilities. (Tucker, 183 Ill. App. 3d at 335.) Thus, where the defense counsel informs the trial court of the defendant’s desire to waive his right to a jury trial, the defendant has knowingly and understandingly consented to the waiver. Tucker, 183 Ill. App. 3d at 335.

In the present case, defendant spoke and acted through his attorney concerning defendant’s waiver of his right to a trial by jury. Defense counsel stated in court and on the record that he had discussed with defendant whether defendant should waive his right to a jury trial. Defense counsel then informed the court that defendant wished to waive this right and questioned defendant to determine whether defendant was still in agreement with this decision. Defendant responded in the affirmative. Therefore, under these circumstances, we find that defendant knowingly and understanding^ waived his right to a trial by jury.

We also note that defendant signed a written jury waiver form in this case. Although a signed jury waiver form alone is insufficient proof to demonstrate that the defendant made an understanding waiver of the right to a jury trial (People v. Sebag (1982), 110 Ill. App. 3d 821, 828), the signed jury waiver in this case lessens the probability that the waiver was not made knowingly. Tucker, 183 Ill. App. 3d at 335.

For these reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

WOODWARD and NICKELS, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE RONALD BRIGHAM, Defendant-Appellant.
    Second District
    No. 2—90—0226
    Opinion filed February 21, 1991.

      Josette Skelnik, of Robinson & Skelnik, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, George Brigham, appeals from an order of the circuit court of Du Page County which dismissed his post-conviction petition without an evidentiary hearing. Defendant contends that his petition should not have been dismissed because he was denied his constitutional right to counsel at his trial. In addition, defendant asserts that he was denied the effective assistance of counsel in the trial court and on direct appeal to this court. We reverse and remand.

In August 1985, defendant was charged with unlawful possession with intent to deliver 30 grams or more of a controlled substance (cocaine) (Ill. Rev. Stat. 1985, ch. BGW, par. 1401(a)(2)), unlawful possession of 30 grams or more of a controlled substance (cocaine) (Ill. Rev. Stat. 1985, ch. 561/2, par. 1402(a)(2)), unlawful possession of more than 30 grams but not more than 500 grams of a substance containing cannabis (Ill. Rev. Stat. 1985, ch. 561/2, par. 704(d)), and unlawful possession of a firearm (Ill. Rev. Stat. 1985, ch. 38, par. 24 — 3.1(a)(3)). Following a jury trial, defendant was found guilty of each offense and was subsequently sentenced to 18 years’ imprisonment for the possession with intent to deliver cocaine charge, along with concurrent terms of six years for unlawful possession of a firearm and four years for unlawful possession of cannabis. Defendant was also assessed a $190,000 fine based on his possession of cocaine with intent to deliver conviction. No sentence was imposed on defendant’s conviction of possession of cocaine.

Defendant’s motion for a new trial was denied, and he subsequently filed a notice of appeal to this court. On January 20, 1988, this court affirmed defendant’s convictions in an order filed pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23). People v. Brigham (1988), 165 Ill. App. 3d 1162 (unpublished order under Supreme Court Rule 23).

On October 23, 1989, defendant filed a two-count petition for post-conviction relief. In the petition, defendant alleged that he was denied his constitutional right to counsel when he was represented at trial by an attorney who was not authorized to practice law in this State. In count II of the petition, defendant asserted that he did not receive the effective assistance of counsel based on the failure of his attorney to tender a jury instruction on a lesser included offense.

The facts underlying the chronology of defendant’s petition are summarized as follows. Defendant’s attorney, Phillip Walker, was removed from the master roll of attorneys on February 1, 1986, for failure to pay his registration fees. Walker never paid his past-due fees and was thus never reinstated to the master roll. On July 3, 1986, Walker entered his appearance in this case, which was subsequently tried in September 1986. Following the guilty verdicts, Walker was granted leave of court to withdraw as counsel for defendant and was replaced by attorney Sam Adam. Adam later filed a motion for a new trial, primarily based on allegations of ineffective assistance of counsel, and later represented defendant on appeal. On February 4, 1987, Walker was suspended from the practice of law in this State for the failure to respond to two subpoenas duces tecum and remained suspended as of February 16, 1989, according to a letter from the Attorney Registration and Disciplinary Commission (ARDC) found in the record on appeal.

As we previously indicated, defendant filed his post-conviction petition on August 23, 1989. Attached to the petition was defendant’s affidavit in which he stated that he believed Walker was licensed to practice law in this State at the time defendant retained Walker. Furthermore, defendant averred that he would not have hired Walker had he known that Walker was not licensed.

On January 9, 1990, the State filed a motion to dismiss defendant’s petition, arguing that defendant’s new attorney, Sam Adam, was aware that Walker’s name did not appear on the master roll but failed to make the argument on defendant’s direct appeal to this court. Thus, the State contended that the issue was waived. In addition, the State argued that the mere absence of Walker’s name from the master roll in no way resulted in ineffective assistance of counsel because defendant could not demonstrate that the outcome of the trial would have been different had his attorney “not been laboring under such a disability.” The State attached to its motion to dismiss an affidavit of the assistant State’s Attorney who prosecuted defendant’s case. In the affidavit, the prosecutor stated that Walker was allowed to withdraw from the case after Adam informed the court that Walker’s name had been removed from the master roll at the time of the trial.

On January 25, 1990, defendant filed an answer to the State’s motion to dismiss in which he admitted that attorney Adam was aware that Walker’s name was not on the master roll, but denied that Adam knew of any other disciplinary or professional problems of Walker. Defendant also argued that he was not simply contending that he was denied the effective assistance of counsel, but instead that Walker “was not ‘counsel’ for purposes of satisfying constitutional requirements.” Defendant attached an affidavit of Sam Adam to his answer in which Adam agreed that he advised the trial judge and prosecutor of Walker’s nonregistration status for 1986. However, defendant was not aware of Walker’s professional status at this time. In addition, Adam indicated that he was unaware that Walker was subject to an ARDC investigation at that time and was later suspended from the practice of law.

On February 20, 1990, the trial court granted the State’s motion to dismiss defendant’s petition. The court determined that defendant waived the issue of Walker’s nonregistration by failing to raise it in the initial appeal. Notwithstanding waiver, the court further concluded that the absence of Walker’s name on the master roll in no way resulted in incompetent representation or fell below the objective reasonable standard announced in Strickland. The court thus found no constitutional violation in this case. Defendant filed a timely notice of appeal.

Defendant first contends that he is entitled to a new trial because he was represented by an attorney who was not licensed to practice law at the time of defendant’s trial. Defendant argues that his attorney did not qualify as “counsel” for purposes of satisfying his constitutional right to the assistance of counsel at trial. See U.S. Const., amend VI.

The State disagrees, arguing instead that defendant has waived this issue by failing to raise the argument on his direct appeal to this court. In addition, the State contends that, even absent any waiver, defendant cannot prevail because he is simply challenging his counsel’s trial performance and is thus claiming that he did not receive the effective assistance of counsel. The State asserts that this case should be determined based on the two-prong test enunciated in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. Under this test, defendant cannot prevail unless he can demonstrate that his attorney’s conduct was professionally deficient and, but for the deficiency, there is a reasonable probability that the result of the trial would have been different. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064-65.

We first consider the State’s contention that defendant waived consideration of this issue by failing to raise the issue during his first appeal. The State argues that defendant’s second attorney, Sam Adam, was aware that Walker’s name had been removed from the master roll, and thus the issue could have been raised previously.

We note, however, that defendant himself was not aware of his attorney’s unregistered status until after our Rule 23 disposition affirmed his convictions. Defendant did not participate in the in-chambers conference at which his trial attorney’s unregistered status was first revealed. Instead, only the judge, prosecutor, and new defense attorney were present. It would be fundamentally unfair to hold that defendant waived the issue of whether he was denied the right to counsel at trial under these specific facts. See People v. Burns (1979), 75 Ill. 2d 282, 290 (strict application of waiver rule should be relaxed in instances where fundamental fairness so requires, whether on direct appeal or in post-conviction proceedings).

Supreme Court Rule 756 (134 Ill. 2d R. 756) governs the registration of attorneys in this State. This rule provides, in pertinent part:

“(b) The Master Roll. The Administrator shall prepare a master roll of attorneys consisting of the names of attorneys who have registered and have paid or are exempt from paying the registration fee. *** An attorney who is not listed on the master roll is not entitled to practice law or to hold himself out as authorized to practice law in this State.
* * *
(d) Removal From the Master Roll. On February 1 of each year the Administrator shall remove from the master roll the name of any person who has not registered for that year. Any person whose name is not on the master roll and who practices law or who holds himself out as being authorized to practice law in this State is engaged in the unauthorized practice of law and may also be held in contempt of the court.” (Emphasis added.) (134 Ill. 2d Rules 756(b), (d).)

The question we must answer is whether defense counsel’s failure to pay his registration fees, which subsequently resulted in his removal from the master roll and, in effect, the unauthorized practice of law, denied defendant his right to counsel.

Defendant argues that the facts found in the present case are analogous to those found in People v. Schlaiss (1988), 174 Ill. App. 3d 78. In Schlaiss, the defendant was represented by a law student pursuant to Supreme Court Rule 711 (107 Ill. 2d R. 711). However, the defendant did not consent in writing to be represented by the law student, in violation of Supreme Court Rule 711(c) (107 Ill. 2d R. 711(c)). This court reversed the defendant’s conviction of battery, stating that “[bjecause the conditions necessary for [the law student’s] representation of [the defendant] were not met, he cannot be considered ‘counsel’ for constitutional purposes.” (Schlaiss, 174 Ill. App. 3d at 81.) We held that the defendant was thus denied the right to counsel as guaranteed by the sixth amendment to the United States Constitution. 174 Ill. App. 3d at 81-82, citing Holloway v. Arkansas (1978), 435 U.S. 475, 489, 55 L. Ed. 2d 426, 437-38, 98 S. Ct. 1173, 1181.

The State disagrees, arguing that Schlaiss does not apply in the present case because the defendant in Schlaiss was not informed that his “attorney” was actually a law student and did not consent in writing to such an arrangement. The State points out that defendant, in the present case, proceeded to trial with “the counsel of his choice” and was provided effective representation. Thus, the State contends that defendant was not deprived of his right to counsel in this case.

Instead, the State argues that this case more closely resembles the facts present in People v. Elvart (1989), 189 Ill. App. 3d 524. In Elvart, the defendant argued that he was denied the effective assistance of counsel because, inter alia, his trial counsel was not a registered attorney in Illinois. The appellate court disagreed, holding that the Strickland test was not satisfied “by a mere showing that defense counsel was removed from the Master Roll of Attorneys for failing to pay his registration fee.” (Elvart, 189 Ill. App. 3d at 529.) The court noted that Supreme Court Rule 756 does not suggest that the nonpayment of fees renders an attorney per se constitutionally ineffective. 189 Ill. App. 3d at 530.

We, however, decline to follow the ruling in Elvart based on our reading of the specific wording of Supreme Court Rule 756. This rule specifically states that “[a]n attorney who is not listed on the master roll is not entitled to practice law or hold himself out as authorized to practice law in this State.” (134 Ill. 2d R. 756(b).) It is undisputed that defendant’s attorney at trial was not listed on the master roll at the time of the trial, and we can find nothing in the record to indicate that he was ever reinstated to the master roll. Since this condition was not met, defendant’s attorney was not authorized to practice law in this State and thus cannot be considered “counsel” for constitutional purposes in this case. Therefore, under these facts, we conclude that defendant was denied counsel under the sixth amendment to the United States Constitution, and his conviction must be reversed and the cause remanded for a new trial. See Schlaiss, 174 Ill. App. 3d at 81-82.

In so doing, we recognize the possible impact this decision may have upon many cases in which an attorney is not legitimately entitled to practice law because he or she failed to pay the requisite fees. We urge our supreme court to consider this case as a vehicle by which it may reveal its intent with respect to Supreme Court Rule 756 under these situations.

Furthermore, we disagree with the State’s suggestion that the appropriate sanction is to “subject the lawyer to the court’s contempt power” in cases such as this. The rule specifically states that an attorney who fails to register and continues to practice law “is engaged in the unauthorized practice of law and may also be held in contempt of the court.” (Emphasis added.) (134 Ill. 2d R. 756(d).) At a minimum, defendant was constitutionally entitled to be represented by an attorney who was authorized to practice law in this State. Simply subjecting an attorney to the court’s contempt power, without more, in no way vitiates this constitutional deficiency. We believe the only way to remedy this sixth amendment violation is to provide defendant with a new trial so that he can have a registered and “authorized” attorney represent him.

Because of our disposition of this issue, we need not address defendant’s second contention concerning defense counsel’s failure to tender a certain jury instruction at trial and the ineffectiveness of appellate counsel in failing to raise the issue on appeal.

For these reasons, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

WOODWARD and NICKELS, JJ., concur.


author: PRESIDING JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BARBARA LOGSDON, Defendant-Appellee.
    Fifth District
    No. 5—88—0811
    Opinion filed February 25, 1991.

      Don Sheafor, State’s Attorney, of Vandalia (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

The State appeals from the order of the circuit court of Fayette County granting the motion of defendant, Barbara Logsdon, to suppress evidence illegally seized. The question presented is whether a police officer who enters a house with the consent of the owner, sees marijuana and then leaves the house to call for backup and a search warrant, may reenter the house without a warrant to seize the marijuana. We reverse.

On April 3, 1988, defendant, while hospitalized, called the Effing-ham County sheriff’s department and explained that her ex-husband had made harassing telephone calls to her in the hospital and that her home had been burglarized in the past. She requested that the sheriff’s department watch her residence for strange cars or people. The sheriff's deputy called the St. Elmo police department to have them check the house.

Officer Mattingly of the St. Elmo police department went to the home around 11 p.m. that evening. He found the front door locked, but found the screen door torn, and pry or “jimmy” marks on the kitchen door. The wood next to the door lock was chipped. The officer tried the door and found it unlocked. He opened the door and entered the house with his weapon drawn and a flashlight, checking for anyone who might be hiding. In each room, he looked under and behind objects where a person might hide.

In one bedroom, Officer Mattingly found a door with no handle, which appeared to lead upstairs. The door had an old lock which appeared to take a skeleton key. It was not locked. With a pen, Officer Mattingly flipped the latch and opened the door. Inside this door was another door into a cubbyhole just large enough for someone to pass through. This door was open six or eight inches. He shined his light into the cubbyhole and saw a clear plastic bag which appeared to contain marijuana.

Officer Mattingly was familiar with marijuana, having conducted more than 100 field tests on marijuana in his 15 years of law enforcement. He picked up the bag, looked at it and concluded that it was marijuana. The officer did not move anything in the cubbyhole to see the marijuana. He reached under a garbage bag in the cubbyhole and felt another bag similar to the first. He left both bags and continued his check for intruders in the house. Upon completing his search, he went to his squad car to call for another officer to secure the house while he went to obtain a search warrant.

Backup arrived at approximately 11:50 p.m. Officer Mattingly then called the State’s Attorney, who instructed him to reenter the house and seize the marijuana without a search warrant. Mattingly and his backup reentered the house and searched it again in case he had missed someone on his first entry. This second search was more thorough than the first. This time, the officers seized the bags and found them to contain 18 separate, individually wrapped bags of marijuana.

On April 13, 1988, Officer Mattingly and Mary Meyers, a city employee, visited defendant in the hospital. After waiving her Miranda rights (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602), defendant confirmed that she called the sheriff’s department and asked to have her home checked. She stated that if the police were to find anything unusual, she expected them to enter the house to see if anyone was there.

The circuit court found Officer Mattingly acted properly from the time he received the initial telephone call from the sheriff’s department until he left the house to obtain a search warrant. The court concluded, however, that when Mattingly reentered the house without a warrant, he exceeded the scope of defendant’s consent. The circuit court therefore suppressed the evidence.

The underlying issue in this appeal is whether the second search exceeded the scope of defendant’s consent. Specifically, the State argues the search was, in fact, one continuous search to which defendant consented. Defendant responds the second search was a separate, independent search beyond the scope of her consent. Under the circumstances presented here, we believe the State is correct.

The fourth amendment to the United States Constitution (U.S. Const., amend. IV) and article I, section 6, of the Illinois Constitution (Ill. Const. 1970, art. I, §6) prohibit unreasonable searches and seizures as well as the issuance of warrants without probable cause. A search conducted pursuant to consent, however, is one of the established exceptions to the requirements of both a warrant and probable cause before a police search. (People v. Bruce (1989), 185 Ill. App. 3d 356, 368, 541 N.E.2d 708, 715.) While generally a consent to search is given with the understanding that the search will be conducted forthwith and that only a single search will be made, under appropriate circumstances, second or subsequent searches are acceptable. (See People v. Wilson (1985), 133 Ill. App. 3d 265, 271-72, 478 N.E.2d 561, 566; People v. Lee (1981), 93 Ill. App. 3d 894, 896-97, 417 N.E.2d 1090, 1092.) We believe, however, that here, just as in People v. Manikowski (1989), 186 Ill. App. 3d 1007, 542 N.E.2d 1148, we are not faced with two searches, but rather with one continuous search. A brief interruption or a temporary suspension of a search does not transform one continuous search into two separate searches. Manikowski, 186 Ill. App. 3d 1007, 542 N.E.2d 1148; see also Michigan v. Tyler (1978), 436 U.S. 499, 56 L. Ed. 2d 486, 98 S. Ct. 1942.

The record reveals Officer Mattingly never abandoned his investigation, relinquished control over the defendant’s house, or indicated an intent not to seize the marijuana. He only briefly interrupted his search to call for backup and to reach the assistant State’s Attorney. The call for backup clearly demonstrated an intent to keep control of the house and maintain a police presence there, and the call to the assistant State’s Attorney surely revealed his intent to take possession of the contraband. Only one search occurred, albeit temporarily suspended. Officer Mattingly therefore did not exceed the scope of defendant’s consent upon reentering the premises. In addition, because Officer Mattingly was legally justified in being in defendant’s residence, he lawfully could seize the marijuana in plain view, even if on his second pass through the house. (See People v. Torres (1986), 144 Ill. App. 3d 187, 190, 494 N.E.2d 752, 754; see also Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535.) The trial court therefore erred in suppressing the evidence in this instance.

Even if we were to agree with defendant and find that two separate searches occurred here, we still would reach the same conclusion. The evidence should not have been suppressed because the searches took place within the scope of defendant’s consent. Defendant consented to allow her house to be searched while she was hospitalized. Implicit in this consent was the right of the police officer to search the house as many times as needed and any place where an intruder might hide. Officer Mattingly searched the house while defendant was in the hospital at a time when there was evidence of a forcible entry and searched an area where uncontrovertedly a person could have crawled inside to hide. Mattingly therefore searched the house within the time limits and physical boundaries set by defendant’s consent. A consent to search which is unlimited as to time and number of searches must be judged under a rule of reason. (Manikowski, 186 Ill. App. 3d at 1011-12, 542 N.E.2d at 1151; People v. Shelton (1982), 110 Ill. App. 3d 625, 629, 442 N.E.2d 928, 932.) Under the facts presented here, we find Officer Mattingly’s searches to be within that rule of reason. (See Wilson, 133 Ill. App. 3d at 271-72, 478 N.E.2d at 566; Lee, 93 Ill. App. 3d at 896-97, 417 N.E.2d at 1092-93.) Mattingly’s first entry into the house was consensual and proper. He found the marijuana on his first search through the house. While he could have seized the contraband at that point, Officer Mattingly was in the process of searching a dark house late at night for intruders. Instead of immediately seizing the contraband, he wisely continued his search of the house. Once Mattingly saw the marijuana, however, defendant lost any protected privacy interest in it. Once no privacy interest remains, greater latitude is given to authorities in the methods by which they seize contraband. (People v. Hebel (1988), 174 Ill. App. 3d 1, 25, 527 N.E.2d 1367, 1382; People v. Uran (1987), 157 Ill. App. 3d 294, 299, 510 N.E.2d 610, 613.) Accordingly, Mattingly could leave the house temporarily, call for a backup and search warrant, and reenter without violating any of defendant’s privacy interests. Under either reasoning, the trial court erred in suppressing the marijuana found in defendant’s home.

For the aforementioned reasons, we reverse the judgment of the circuit court of Fayette County and remand for further proceedings.

Reversed and remanded.

HARRISON and GOLDENHERSH, JJ., concur.