author: PRESIDING JUSTICE TULLY JUSTICE GREIMAN,

text:
    EILEEN M. CARATINI, as Adm’r of the Estate of John M. Caratini, Jr., Deceased, Plaintiff-Appellant, v. CASUALTY INSURANCE COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 1 — 90—3636
    Opinion filed April 14, 1993.
    Rehearing denied June 15, 1993.

      GREIMAN, J., dissenting on denial of rehearing.
    David H. Lucas, of Lucas, Murphy & Kerwin, and Robert J. Kennedy, of Huff & Kennedy, both of Chicago, for appellant.
    Kiesler & Berman, of Chicago (Robert L. Kiesler, Marvin D. Berman, and Jeanne M. Zeiger, of counsel), for appellee.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

Plaintiff Eileen Caratini, as administrator of the estate of decedent John M. Caratini, appeals from an order of the circuit court of Cook County dismissing her declaratory judgment action against defendant Casualty Insurance Company pursuant to its finding that defendant made an offer of uninsured motorist coverage to plaintiff’s decedent as required by section 143a — 2 of the Illinois Insurance Code (section 143a — 2) (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2). On appeal, plaintiff contends that the trial court erred in finding that defendant offered plaintiff’s decedent uninsured motorist insurance in a manner which satisfied the requisites of section 143a — 2. We reverse and remand.

In December 1985, decedent contacted the Marvin Schoen Insurance Agency in Glen Ellyn, Illinois, in reference to obtaining workers’ compensation and motor vehicle liability insurance for his trucking company. On December 6, 1985, decedent met with Marvin Schoen at the agency to discuss the trucking company’s insurance needs. At this meeting, decedent brought in a list of his vehicles and requested bodily injury coverage with a limit of $500,000. During the meeting, uninsured motorist coverage was mentioned and Schoen telephoned Steve Kelley, an underwriter for defendant, regarding the cost of such coverage with a $500,000 limit. Kelley quoted Schoen a figure of $50 per vehicle for the uninsured motorist coverage. However, Kelley stated that he was unsure as to whether defendant would write $500,000 of uninsured motorist coverage. Kelley incorrectly believed the top amount of such coverage defendant would write was $300,000.

Schoen then relayed Kelley’s quote to decedent and Schoen’s belief that between the proposed regular liability and workers’ compensation insurance decedent would be fully covered. When told the uninsured motorist coverage would cost $50 per vehicle, decedent responded, “I cannot afford it — the premium’s too high already.” Responding to decedent’s concern over cost, Schoen erroneously stated that the basic uninsured motorist insurance of $15,000 per person and $30,000 per accident (15/30), which cost $4 per vehicle, could be waived by writing a letter to defendant to the effect that such coverage is not desired. Decedent indicated that it was not worth the trouble of writing a letter over $4.

Subsequently, an application for insurance on behalf of decedent was completed by Schoen’s secretary, Eileen Tarsa. Tarsa signed decedent’s name to the application. The application had requested the basic 15/30 uninsured motorist coverage. Pursuant to this application, defendant issued policy number GAL — 86 29118, effective January 21, 1986. The policy had a single coverage limit of $500,000 for bodily injury coverage and did not mention the uninsured motorist insurance. Subsequent to the effective date of the policy, decedent was fatally injured in a motor vehicle collision alleged to have been caused by the negligence of an uninsured driver. Uninsured motorist coverage was added by defendant to the policy by endorsement on July 28, 1986, after decedent’s death.

We now turn to plaintiff’s argument that the trial court erred in finding that defendant offered plaintiff’s decedent uninsured motorist insurance in a manner which satisfied the requisites of section 143a — 2. Section 143a — 2 provides, in pertinent part, as follows:

“(1) Required offer of additional uninsured motor vehicle coverage. No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless uninsured motorist coverage as required in Section 143a of this Act is offered in an amount up to the insured’s bodily injury liability limits.” (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(1).)

Thus, the question in this case becomes whether defendant “offered” uninsured motorist coverage to decedent within the meaning of section 143a — 2. Defendant asserts that Schoen, as its agent, fulfilled the requisites of section 143a — 2. Plaintiff argues that Schoen was not an agent of defendant and thus could not have made the required offer of uninsured motorist coverage and that even if one assumes, arguendo, that Schoen was defendant’s agent, he still did not make an offer within the meaning of section 143a — 2. We agree with plaintiff’s argument that Schoen’s actions were inadequate under section 143a— 2 and, therefore, we need not decide whether he was an agent of defendant and make no comment on that issue.

In the case of Cloninger v. National General Insurance Co. (1984), 109 Ill. 2d 419, 488 N.E.2d 548, our supreme court gave its imprimatur to the appellate court’s holding in Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329, 456 N.E.2d 956. Tucker adopted a four-part test employed by the Minnesota Supreme Court in Hastings v. United Pacific Insurance Co. (Minn. 1982), 318 N.W.2d 849, to determine under a similar provision of Minnesota law requiring insurers to offer optional coverages, including uninsured motorist insurance, whether an offer of such coverage was made. Tucker summarized the Hastings test which insurers must meet in order to comply with section 143a — 2 as follows:

“([1]) If the offer is made in other than face to face negotiations, the notification process must be commercially reasonable; (2) the insurer must specify the limits of its optional coverages and not merely offer them in general terms; (3) the insurer must intelligibly advise the insured of the nature of the optional coverages; and (4) the insured must be advised that optional coverages are available for a relatively modest increase in premium.” Tucker, 125 Ill. App. 3d at 335.

Upon a careful review of all the circumstances of this case, we conclude that none of the Tucker-Hastings factors were met. By no stretch of the imagination can it be said that the notification process was commercially reasonable. At the time of decedent’s meeting with Schoen, Schoen and Kelley had only a vague idea of how much the premium for the uninsured motorist coverage would cost. Neither Schoen nor Kelley knew what the limits of such coverage could be or what the requirements of section 143a — 2 were. Consequently, it was impossible for them to intelligently advise decedent of the nature of the optional coverage and its availability at a relatively modest increase in premium. Therefore, we find that defendant's offer of uninsured motorist coverage was insufficient under the requirements of section 143a — 2. We further find that the insurance policy at issue in this case by operation of law implies uninsured motorist coverage in limits equal to the bodily injury limits.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

RIZZI and GREIMAN, JJ., concur.

DISSENT UPON DENIAL OF REHEARING

JUSTICE GREIMAN,

dissenting:

Although I believed that the case was a close one at the time I concurred with the majority’s opinion, upon consideration of the meaningful petition for rehearing, I have determined that this court should have affirmed the trial court.

This appeal comes to us following a bench trial where the trial court entered a detailed order including its findings of fact and conclusions of law. It is well established that a trial court’s findings in a bench trial will not be disturbed unless they are against the manifest weight of the evidence which requires the opposite conclusion to be clearly evident. Holland v. State Farm Mutual Automobile Insurance Co. (1991), 216 Ill. App. 3d 463, 468, 576 N.E.2d 981; Trident Industrial Products Corp. v. American National Bank & Trust Co., N.A. (1986), 149 Ill. App. 3d 857, 865, 501 N.E.2d 273.

The trial court concluded that defendant satisfied the requirements of section 143a — 2 (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2) and the four-part test enunciated in Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 425-26, 488 N.E.2d 548, and Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329, 465 N.E.2d 956.

The first prong of the test only applies where the offer is made in other than face-to-face negotiations. In the present case, the negotiations at issue took place in the context of a face-to-face meeting between Caratini and Marvin Schoen and as such are sufficient to forego the element addressing the commercially reasonable nature of the notification process. (Holland, 216 Ill. App. 3d at 467 (“the first criterion has been met by the meeting between plaintiff and defendant’s agent); Houser v. State Farm Insurance Co. (1989), 193 Ill. App. 3d 125, 549 N.E.2d 17 (where an offer of insurance was made by mail, the court considered whether the notification process was commercially reasonable).) Accordingly, I disagree with the majority’s statement that “[b]y no stretch of the imagination can it be said that the notification process was commercially reasonable.” 248 Ill. App. 3d at 73.

The evidence in the record also supports the trial court’s conclusion that the three remaining elements of the Tucker test were satisfied. As acknowledged by the majority, Schoen ascertained the exact premium for increased uninsured motorist coverage in a telephone conversation with Steve Kelley and then quoted a figure of $50 per vehicle for the uninsured motorist coverage to Caratini. An offer for optional coverage need not include a listing of all available coverages and their respective costs. (Krska v. Allstate Insurance Co. (1987), 162 Ill. App. 3d 549, 554-55, 515 N.E.2d 1304.) In response to this information, Caratini rejected the increased coverage and stated “I cannot afford it — the premium’s too high already.”

Schoen also explained to Caratini the differences between uninsured motorist coverage, underinsured motorist coverage, and worker’s compensation coverage as to damages recoverable. Schoen further advised Caratini that the basic uninsured motorist coverage of $15,000 per person and $30,000 per occurrence would cost $4 per vehicle. Schoen erroneously told Caratini that the basic coverage could be waived by writing a letter to that effect, but Caratini dismissed this idea by saying that it was not worth the trouble of writing a letter. The erroneous information regarding the waiver of the minimum coverage conveyed by Schoen impacts little, if at all, on the fact that Schoen explained and offered the optional coverages to Caratini.

In a bench trial, the trial court determines the weight and credibility of the witnesses’ testimony and resolves inconsistencies and conflicts. (Holland, 216 Ill. App. 3d at 467-68.) A reviewing court will affirm if there is evidence in the record to support the trial court’s judgment because it is not sufficient to show that the record will support a contrary decision. Trident Industrial Products, 149 Ill. App. 3d at 865.

Accordingly, I would affirm the trial court’s judgment.


source: Caselaw Access Project

author: JUSTICE McNULTY

license: Public Domain

text:
      In re B.M. et al., Minors (The People of the State of Illinois, Petitioner-Appellant, v. Barbara M. et al., Respondents-Appellees).
    First District (5th Division)
    No. 1 — 92—4034
    Opinion filed May 28, 1993.
    Patrick T. Murphy, Public Guardian, of Chicago (Kathleen G. Kennedy, of counsel), for appellants.
    Rita A. Fry, Public Defender, of Chicago (Lynn Flanagan Wilson, Assistant Public Defender, of counsel), for appellees.
   JUSTICE McNULTY

delivered the opinion of the court:

The State appeals the dismissal of its petitions for adjudication of wardship of three-year-old B.M. and his 11-year-old-sister L.B. The juvenile court conducted a temporary custody hearing on petitions to adjudicate B.M. and L.B. wards of the court due to parental neglect. At the hearing, Beverly Jordan, investigator from the Division of Child Protection of the Illinois Department of Children and Family Services (DCFS), testified that around noon on September 13, 1992, B.M.’s parents brought their son to Ravenswood Hospital. B.M. had a knife wound to his stomach and his “guts were hanging out.” According to a nurse, the parents did not know how B.M. received the wound.

A week after the incident, Jordan spoke with B.M.’s parents. The father told Jordan that he was in bed at the time of the incident and therefore did not know how B.M.’s injury occurred. The father also told Jordan that the night before the incident he and his brother were out on their boat drinking. When they returned home at about 2 a.m., the father went to bed, leaving his pocket knife in his pants pocket.

Jordan also spoke with Elizabeth Powell, a physician with Children’s Memorial Hospital. Powell stated that B.M.’s wound was located under the left rib cage near the bowel, but did not cause any internal damage. There were no other marks or bruises found on B.M.’s body and a bone survey showed no visible previous bone breakage. Powell stated that a three-year-old could inflict this kind of injury on himself but it would take a lot of force. Powell stated that the parents’ explanation of how B.M.’s injury occurred was inconsistent with B.M.’s injury. Powell stated that this case was “very bizarre” and that B.M. did not “show any kind of normal responses for the type of trauma he had been through.” Specifically, he did not flinch or cry when he was inserted with intravenous tubes. Powell suspected that B.M. suffered from battered child syndrome personality. She referred the case to Dr. Levine for a psychiatric evaluation, but Dr. Levine did not believe B.M. was a battered child.

Mary Gazda, a social worker employed by the hospital, told Jordan that “never in the history of Children’s Memorial Hospital had they seen an injury like this given by a three year old to himself.” The protective service team determined that even though it could not say that someone actually stabbed B.M., the case was “highly suspicious.”

At the hospital, B.M. did not say anything regarding how he received his injury. The police officers to whom Jordan spoke said that B.M. told them that he was playing with a knife and injured himself. The police concluded that B.M. was strong enough to open the pocket knife himself.

B.M.’s mother first told the hospital staff that she believed B.M. was injured while playing outside. She told Jordan that B.M. was injured while playing with his father’s pocket knife. The mother told Jordan that B.M. informed her that he had stabbed himself. One of the nurses noted that the mother seemed nervous and jittery.

B.M.’s uncle told Jordan that the morning of the incident, he watched TV with B.M. while B.M.’s parents slept. B.M. asked to go outside. Because the back door was broken, the uncle went out the front door and opened the back door from the outside. When the uncle returned, B.M. was sitting on the couch, clutching his stomach. The uncle saw B.M.’s “guts hanging out.” The uncle woke B.M.’s parents and the parents took B.M. to the hospital. The uncle said that he noticed the stab wound at about 9:30 a.m. The hospital report indicates. that the parents did not bring B.M. to the emergency room until around noon.

Jordan also spoke to the maternal grandmother, Linda White. White stated that B.M. and L.B. are being emotionally abused in their home, the children are not being treated right, the children are not fed properly, and the home has no heat or gas. Jordan observed several black hoses running to the kitchen, reportedly used to heat water. She was not able to verify that the gas or heat was working in the home, but she had been told that the home had both. White told Jordan that L.B. and her friend were going to call the hotline because they observed Barbara using cocaine in the kitchen. According to White, Barbara’s first priority is drugs.

Jordan referred the parents to- the Family First program for services. The parents did not want the Family First worker to come to their home twice a week and the parents did not want any services. Also, the parents did not bring B.M. to a scheduled follow-up surgical appointment.

On the basis of this evidence, the State sought temporary custody of the children, and the children’s attorney and guardian ad litem sought a finding of probable cause, with the children remaining in the custody of the parents under a protective order. The court found no probable cause and no immediate necessity and dismissed the petitions for adjudication of wardship.

In this appeal, we must determine whether the trial court erred in failing to find probable cause and dismissing the petitions for adjudication of wardship. Initially, respondents contend that this appeal is not from a final order and therefore should be dismissed. However, the court in In re Joseph B. (1993), 243 Ill. App. 3d 339, found that the dismissal of a petition for adjudication of wardship is final and appealable. See also In re J.J. (1991), 142 Ill. 2d 1, 566 N.E.2d 1345.

Turning to the merits, we note that the best interest and welfare of the child is the standard applicable to proceedings under the Juvenile Court Act. (In re Carlenn H. (1989), 186 Ill. App. 3d 535, 542 N.E.2d 959.) Because injurious environment is an amorphous concept which cannot be defined with particularity, each case should be reviewed considering the specific circumstances of that case. (In re S.D. (1991), 220 Ill. App. 3d 498, 581 N.E.2d 158.) The determination of neglect lies within the province of the trial court, and its findings will not be disturbed on review unless contrary to the manifest weight of the evidence. In re S.D., 220 Ill. App. 3d 498, 581 N.E.2d 158.

A petition for adjudication of wardship is to be dismissed if the courts find no probable cause to believe the minor is abused, neglected or dependent. (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 10(1).) The State urges us to conclude that a finding of probable cause requires only a scintilla of evidence. However, no statutory or case law has found the proper standard in a temporary custody hearing to be a scintilla of evidence. Moreover, it is within the province of the legislature and not this court to change the burden of proof.

Based on our review of the record, we do not find the trial court’s decision to dismiss the petitions for lack of probable cause to be against the manifest weight of the evidence. Evidence established that B.M.’s father inadvertently left his knife in his pants pocket. B.M. informed the police and his mother that he had injured himself while playing with his father’s pocket knife. The police found that B.M. was strong enough to open the knife. Although B.M.’s parents were asleep at the time of the incident, B.M. was being supervised by his uncle. A psychiatrist determined that B.M. was not a battered child, the hospital staff found no other bruises or marks on B.M.’s body, and a bone survey showed no previous bone breakage.

The State believes that the trial court failed to take into consideration the out-of-court statement of B.M.’s grandmother that B.M.’s mother uses drugs. The record reveals that the trial court did in fact consider the grandmother’s hearsay testimony but simply assigned it little weight. Furthermore, while the grandmother told Jordan that there was no heat or gas in the house, there was also evidence that the house did have the appropriate utilities. In addition, there was testimony that B.M.’s behavior was strange, and the parents failed to take B.M. to his follow-up appointment at the hospital. However, it is not our prerogative to reweigh the evidence, and the record presented simply does not allow us to determine that the trial court’s decision was against the manifest weight of the evidence.

Accordingly, the trial court decision to dismiss the State’s petitions for adjudication of wardship is affirmed.

Affirmed.

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


author: JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT SMITH, Defendant-Appellee.
    First District (3rd Division)
    No. 1 — 88—3360
    Opinion filed June 2, 1993.

      Jack O’Malley, State’s Attorney, of Chicago (Inge Fryklund, Theodore Burtzos, and Paul Gliatta, Assistant State’s Attorneys, of counsel), for the People.
    Rita A. Fry, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellee.
   JUSTICE GREIMAN

delivered the opinion of the court:

The circuit court of Cook County suppressed incriminating statements defendant Robert Smith made during a custodial interrogation by police, on grounds that they were secured by acts which violate defendant’s right to counsel under the fifth amendment of the United States Constitution (U.S. Const., amend. V) and article I, section 10 of the Illinois Constitution (Ill. Const. 1970, art. I, §10). The State appealed, contending the trial court improperly granted the motion to suppress.

We affirmed the trial court’s order suppressing defendant’s statements (People v. Smith (1991), 220 Ill. App. 3d 678, 581 N.E.2d 80) (Smith I), and on October 30, 1991, the State filed a petition for leave to appeal with the supreme court. On November 24, 1992, the supreme court filed its opinion in People v. Griggs (1992), 152 Ill. 2d 1, 604 N.E.2d 257, and thereafter on February 3, 1993, by supervisory order vacated the opinion in Smith I and directed that we consider this matter in light of Griggs.

We have considered the facts and circumstances of this case in light of the supreme court’s opinion in Griggs and we affirm the trial court.

In Griggs the supreme court determined that an incarcerated suspect who knows that an attorney has been retained for him, but is not informed that the attorney is present and trying to see him, cannot make a valid waiver of his right to counsel. Griggs, 152 Ill. 2d at 23-30.

The Griggs court remanded the cause for a new hearing on defendant’s motion to suppress to determine (1) whether defendant knew that an attorney was being retained for him; and (2) whether the attorney retained for defendant was present at the police station before the interrogation of defendant was completed.

“If. the circuit court determines the attorney retained for defendant was present at the police station before the interrogation of defendant was completed, the circuit court shall determine whether the attorney had requested access to his client before the interrogation of defendant was completed and whether defendant was. so informed. If the circuit court finds that the defendant knew that an attorney was being retained for him, the attorney, was present and had requested access to defendant before the completion of the custodial interrogation of defendant, and that police refused to so inform defendant of the immediate availability of his attorney, the circuit court shall allow defendant’s motion to suppress ***.” Griggs, 152 Ill. 2d at 29-30.

In Griggs, defendant telephoned his sister approximately two hours after his arrest and was advised by his sister, “[D]on’t worry because first, of all we’d gotten [you] a lawyer and so don’t say anything to nobody.” (Griggs, 152 Ill. 2d at 5.) The sister testified that she told the defendant the attorney’s name and hired the attorney after she received defendant’s call.

In the case at bar, the evidence at the suppression hearing is clearly within the Griggs rule and answers the questions for which Griggs was remanded. Smith’s sister testified that early in the evening of the arrest, the defendant told her “I’m going to need a lawyer. I’m going to try and get in contact with Stamos and I want you to try and get in contact with Stamos.”

The sister further testified that she, in fact, had phoned attorney James Stamos in response to her brother’s request after receiving a call from defendant’s girl friend that he had been arrested. Defendant’s girl friend, Kelly Matthews, also testified that at the time of the arrest, defendant directed that she call defendant’s sister and secure a lawyer.

The sister further testified that Matthews had called her and advised her of the arrest and that. defendant said she was to contact Stamos that night.

In Griggs, knowledge that an attorney was retained for defendant is based upon the family’s representation that they intended to secure counsel for defendant, while in the case at bar, defendant has asked that a lawyer be called and has designated the specific lawyer to be called.

Moreover, both the defendant here and the Griggs defendant testified that they wished to be represented by counsel. In the case at bar, the defendant continued requests to make a phone call in a further attempt to contact counsel; the detectives testified that defendant made no such request.

In Smith I we detailed defense counsel’s agonizing attempts to contact his client. (Smith, 220 Ill. App. 3d at 680.) Suffice it to say that in the hours he spent in the police station, counsel made at least eight requests to see defendant and made it clear that he had been retained to represent defendant and wished to speak to the client before further interrogation was continued.

At varying times the police responded by advising counsel that the defendant was to be charged only for “traffic warrants” and another time one of the detectives repeated that no murder charges had been filed and defendant would be downstairs momentarily. At another point in time, detectives advised counsel that the detectives were conducting a lineup and defendant would be available immediately thereafter. It seems clear that this pattern of conduct was calculated to ensure that defendant did not have access to counsel during the period of interrogation.

The trial court found it more probable than not that defendant had instructed his girl friend to call his sister regarding counsel and that he had told his sister of his expectations in that regard.

We first find that defendant’s confession must be suppressed since a suspect’s waiver of his right to counsel is invalid if police refuse or fail to inform a suspect who knows that an attorney has been retained for him of the efforts of the attorney, present at the place of interrogation, to render assistance to the suspect prior to the termination of the interrogation. Griggs, 152 Ill. 2d at 29.

In Griggs, the court stated that when police withhold such information from the suspect, it amounts to “affirmative police interference in a communication between an attorney and a suspect [when the information withheld by the police] bears directly on the right to counsel that police are asking the suspect to waive.” Griggs, 152 Ill. 2d at 27-28.

While the supreme court recognizes that it is not the attorney’s intervention that invokes the personal right of the suspect to advice and presence of counsel, it nonetheless finds that counsel’s efforts to communicate may not be dismissed as constitutionally insignificant or irrelevant to the capacity of the suspect to make a knowing and intelligent choice whether to invoke the right to counsel. The defense attorney is not a mere supernumerary in the criminal justice system. Griggs, 152 Ill. 2d at 26-28.

The Griggs court reiterated its reasoning previously endorsed in People v. Smith (1982), 93 Ill. 2d 179, 186, 442 N.E.2d 1325:

“ ‘To pass up an abstract offer to call some unknown lawyer is very different from refusing to talk with an identified attorney actually available to provide at least initial assistance and advice, whatever might be arranged in the long run. A suspect indifferent to the first offer may well react quite differently to the second.’ ” Griggs, 152 Ill. 2d at 26-27, quoting State v. Haynes (1979), 288 Or. 59, 72, 602 P.2d 272, 278, reaffirmed in State v. Isom (1988), 306 Or. 587, 761 P.2d 524.

The supreme court set out the evidence a trial court must examine when evaluating a defendant’s motion to suppress: (1) did the defendant know that an attorney was being retained for him; (2) was the attorney present at the place of interrogation and requesting access to defendant before the completion of the custodial interrogation of defendant; and (3) did police refuse or fail to so inform defendant of the immediate availability of his attorney? If the answer to these questions is affirmative, then the trial court must allow defendant’s motion to suppress, since under these circumstances, there could be no knowing waiver of defendant’s constitutional right against self-incrimination. Griggs, 152 Ill. 2d at 29-30; Smith, 93 Ill. 2d at 189.

Other cases which have considered this issue were discussed in Griggs. In Smith, the supreme court stated: '

“[W]hen police, prior to or during custodial interrogation, refuse an attorney appointed or retained to assist a suspect access to the suspect, there can be no knowing waiver of the right to counsel if the suspect has not been informed that the attorney was present and seeking to consult with him.” Smith, 93 Ill. 2d at 189.

' The defendant in Smith had retained an attorney who was present at the police station requesting to see his client but was denied access before defendant made his incriminating statements. Smith, 93 Ill. 2d at 182-83.

The supreme court distinguished Smith from Moran v. Burbine (1986), 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135, and People v. Holland (1987), 121 Ill. 2d 136, 520 N.E.2d 270.

In Burbine, the Supreme Court held that the fifth amendment did not prohibit police from refusing or failing to inform a suspect of an attorney’s efforts to reach him. Unlike Smith and Griggs, the defendant in Burbine did not know that an attorney had been retained for him. Griggs, 152 Ill. 2d at 25.

The Holland court followed Burbine, finding no error in the fail-rue by police to inform a suspect, unaware that a relative had secured counsel for him, that counsel had telephoned police regarding the suspect. Griggs distinguishes Smith from Holland because counsel in Holland never requested access to his client, so there could be no wrongful denial of attorney access. (Griggs, 152 Ill. 2d at 24.) Thus, Holland still stands to uphold an otherwise valid waiver of constitutional rights if the facts demonstrate that a suspect is unaware that an attorney has been retained for him and there is no evidence presented of a denial of attorney access. Griggs, 152 Ill. 2d at 24.

Applying the principles enunciated in Griggs to the case at bar, we agree with the trial court that defendant was not able to make a knowing and voluntary waiver of his constitutional right against self-incrimination because he was denied access to his attorney.

The record establishes that: defendant was in custodial interrogation; he had asked his sister and his girl friend to attend to retaining an attorney for him; his sister did so; the attorney was present at the place of the interrogation before the completion of the interrogation and had requested access to his client approximately eight times before the completion of the interrogation; and detectives were aware that defendant’s attorney was in the building continuously attempting to contact defendant but denied him access to his client prior to defendant’s completion of the interrogation and his subsequent incriminating statement. This evidence demonstrates that defendant was denied his constitutional right to counsel.

In light of the supreme court’s decision in Griggs and for all of the foregoing reasons, we affirm the trial court’s determination.

Affirmed.

TULLY, P.J., and CERDA, J., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    CENTRAL STATES TRUCKING COMPANY, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPLOYMENT SECURITY, Defendant-Appellee.
    First District (4th Division)
    No. 1 — 92—0166
    Opinion filed June 3, 1993.
    J. Kevin Hennessy and Ann L. Crane, both of Banta, Cox & Hennessy, of Chicago, for appellant.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Central States Trucking Company (Central), appeals from the trial court’s dismissal of its complaint for administrative review of the decision of the defendant, the Department of Employment Security, in an underlying dispute over the plaintiff’s failure to pay assessments pursuant to the Unemployment Insurance Act (Ill. Rev. Stat. 1991, ch. 48, par. 300 et seq.). The court granted the defendant’s motion to dismiss the plaintiff’s complaint for failure to name the Director of the Department of Employment Security as a defendant. The court also denied the plaintiff’s motion to amend the complaint.

On appeal, the plaintiff contends the court erred in dismissing the complaint because its failure to name the Director is not a jurisdictional requirement and the court should have allowed the plaintiff to amend its complaint under the “good-faith exception!” The plaintiff further argues that although the word “Director” was not in the caption of the complaint, the Director was incorporated by reference by virtue of two exhibits which were attached to the complaint naming the Director.

On December 31, 1990, the Director of the Department of Employment Security, Sally Jackson, issued a decision in which she affirmed the recommendation of her representative as to determinations and assessments against Central for unpaid contributions. On January 25, 1991, Central filed a complaint for administrative review with the circuit court of Cook County. In the complaint, Central named “State of Illinois, Department of Employment Security” as the only defendant. Central attached two exhibits to the complaint. One exhibit was the full text of the decision of the Director of Employment Security, dated December 30, 1990. The other exhibit was a letter from Central’s attorney, dated January 23, 1991, and addressed to Sally Jackson, Director of Employment Security. The letter advised Jackson that Central was seeking review of the captioned cases. The letter stated that “[t]he Complaint and summons will be served shortly.” On January 25, 1991, a summons was issued in the case of “Central States Trucking Co., Plaintiff, v. State of Illinois, Department of Employment Security, Defendant.” The certificate of mailing named the defendant as “State of Illinois, Dept. of Employment Security (Sally A. Jackson, Director).” The return receipt was stamped by an employee of the Department of Employment Security and the clerk of the court wrote “D” before Sally Jackson’s (Ward) name.

On February 21, 1991, the Department filed a motion to dismiss the complaint because the circuit court lacked jurisdiction as a result of Central’s failure to name the Director a necessary party defendant in the case. Following a hearing, the court dismissed the complaint, without granting leave to amend, ruling that it did not have jurisdiction because the failure to name the Director as a party defendant was a fatal defect depriving the court of jurisdiction over the case.

The procedural requirements for the judicial review of an administrative decision are governed by the Administrative Review Law (Act) (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 101 et seq.). Circuit courts derive their power to review administrative actions from our State Constitution. “Circuit Courts shall have such power to review administrative action as provided by law.” (Ill. Const. 1970, art. VI, §9.) In the exercise of special statutory jurisdiction, if the mode of the procedure prescribed by statute is not strictly pursued, no jurisdiction is conferred on the circuit court. See Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 486 N.E.2d 893; Demchuk v. Duplancich (1982), 92 Ill. 2d 1, 440 N.E.2d 112.

Pursuant to the Administrative Review Law, an action for administrative review “shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 103.) The form of the summons shall be according to the rules of the supreme court. (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 103.) Summons must be issued on the administrative agency itself and on all defendants. (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 105.) Section 3 — 107 requires that “all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.” (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 107.) Section 3— 102 provides that “jujnless review is sought *** within the time and in the manner herein provided,” a party is barred from bringing an action for administrative review. (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 102.) Since administrative review law is a departure from common law, the procedures it establishes must be strictly adhered to. Winston v. Zoning Board of Appeals (1950), 407 Ill. 588, 95 N.E.2d 864.

Central does not dispute that the Director was a party of record to the proceedings and should have been made a defendant, as mandated by section 3 — 107 of the Act. However, Central first asserts that it complied with sections 3 — 103 and 3 — 105 of the Act because, within the 35-day time period, a summons and a copy of the complaint were served upon the Director, Sally Jackson, and she was also named as the defendant on the summons.

We do not agree that Central complied with the Act’s requirements as it pertains to the summons. As we mentioned earlier, section 3 — 103 requires that the form of the summons shall be in accordance with the supreme court rules. Supreme Court Rule 101 specifies that the summons “shall be directed to each defendant.” (134 Ill. 2d R. 101(a).) Rule 101(d) states that each defendant must be named in the caption of the summons. Contrary to Central’s assertion that the summons was proper, the Director was not named in the caption and was named only parenthetically on the certificate of mailing. The Director was served with the summons, not as a named defendant, but rather in her capacity as head of the department. Thus, the requirements of sections 3 — 103 and 3 — 105 were not met.

Central has further argued that the trial judge erred in finding that the Director was not named in the body of the complaint. Central asserts that the Director was included in the complaint by the incorporation of two exhibits, the full text of the Director’s decision and a letter from Central’s counsel which was addressed to the Director informing her that Central was seeking review of her decision. Central contends that the trial judge ignored well-settled case law which holds that exhibits which are attached to the complaint become part of the pleadings and the facts stated in such exhibits are considered as being alleged in the complaint.

We do not agree that parties can be incorporated by reference by attaching exhibits to a complaint. This conclusion is unsupported by case law. Moreover, this argument ignores the clear and unambiguous language of the Act, which requires that “all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.” (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 107(a).) Further, this requirement has been held to be mandatory and specific, and admits of no modification. (Winston v. Zoning Board of Appeals (1950), 407 Ill. 588, 595, 95 N.E.2d 864.) The Director was simply not named as a defendant in Central’s complaint and the requirement of section 3 — 107 of the Act was not met.

Central contends the court erred in finding that its failure to name the Director was jurisdictional. Central argues that the supreme court decision in Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266, should be read as holding that the section 3— 107 requirement to name a necessary party is only mandatory. The significance of this distinction lies in the Lockett court’s application of a good-faith exception to the mandatory 35-day summons requirement. Thus, Central argues, if naming a necessary party is considered a mandatory requirement, the court in the case at bar would have concluded that the facts warranted the good-faith exception and would not have dismissed the complaint.

Both Central and the Department cite various appellate court cases which have varying views on whether the naming of defendants in administrative review cases should be considered a jurisdictional or mandatory requirement. It is not necessary that we determine the correct interpretation of Lockett as to this issue because no evidence exists in the instant case that Central made any effort to name the Director as a defendant. Central points to the attachments to the complaint, service of summons on the Director, and the timely filing of the complaint. We do not believe that these facts prove that Central made a good-faith effort to name the Director in its complaint. The good-faith exceptions, as depicted in Lockett, are situations where “due to some circumstance beyond their control, summons was not issued within the statutory period.” (Lockett, 133 Ill. 2d at 355, 549 N.E.2d at 1268.) We find no indication of circumstances beyond Central’s control which led to its failure to name the Director in its complaint. Our research has not found any cases in which a plaintiff’s inadvertence in naming a necessary party was considered to be a good-faith effort.

We conclude that in the instant case the Director was not properly named in the complaint, the form of the summons was not according to the supreme court rules, and we have" not found any evidence of a good-faith effort to comply with the requirements of the Act. (See Ill. Rev. Stat. 1991, ch. 110, pars. 3 — 103, 3 — 105, 3 — 107.) Accordingly, we find that the complaint for administrative review was properly dismissed by the circuit court.

For all of the aforementioned reasons, the judgment of the circuit court is affirmed.

Affirmed.

CAHILL and HOFFMAN, JJ., concur.


author: JUSTICE JOHNSON

text:
    CLARENCE JOHNSON, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY et al., Defendants-Appellees.
    First District (4th Division)
    No. 1 — 91—3256
    Opinion filed June 3, 1993.
    Robert J. Kelleher, of Kralovec, Jambois & Schwartz, of Chicago, for appellant.
    Christopher W. Graul, of Stanley L. Hill & Associates, of Chicago, for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Clarence Johnson, brought this action in the circuit court of Cook County against defendants, Chicago Transit Authority (CTA) and Oliver Robertson, based on an injury plaintiff sustained after colliding with a CTA bus. Following trial, the jury returned a verdict in favor of defendants upon which judgment was entered. Plaintiff now appeals that judgment, contending (1) the trial court erred in denying his motion for a directed verdict, and (2) the jury’s verdict was against the manifest weight of the evidence.

We affirm.

On June 13, 1984, at approximately 7:20 a.m., plaintiff and two other pedestrians were standing at the intersection of State and Lake Streets in Chicago. The three were at the southeast corner waiting for the stoplight to turn green before attempting to cross the street. The CTA bus in question, operated by defendant Robertson, had been travelling north on State Street and was also stopped at the light. When the signal light turned green, defendant’s bus began to make a right-hand turn onto Lake Street. At that same time, plaintiff and the two other pedestrians began to cross from the southeast to the northeast corner of the intersection. The two pedestrians remained in the crosswalk, while plaintiff walked outside of the crosswalk and collided with defendant’s bus.

At trial, defendant Robertson testified that as a CTA bus driver, he had made the right-hand turn from State Street onto Lake Street over 1,000 times prior to June 13, 1984. On that particular day, he did not observe any pedestrians attempting to cross the street as he was making the right-hand turn. Defendant Robertson admitted that he did not see the collision, but was informed of it by a passenger riding the bus.

Mr. Anthony Ross, a CTA supervisor, testified concerning standard operating procedures for CTA bus drivers. Mr. Ross stated that when making a right-hand turn, drivers were required to yield to oncoming traffic and pedestrians. Mr. Ross also testified that at the particular intersection in question, pedestrians commonly exited the crosswalk and angled toward the stairs leading to the El platform located at the intersection.

Plaintiff testified at trial that as he attempted to cross the street, he neither saw nor heard the CTA bus. After walking six to seven feet into the street, plaintiff felt a sharp pain in his left shoulder just before falling to the ground. Plaintiff stated the next thing he remembered was lying on his back while looking at the CTA bus above him. Plaintiff admitted that he had exited the crosswalk before colliding with the bus.

Michael Lowe testified that he was one of the pedestrians crossing Lake Street with plaintiff on June 13, 1984. Lowe stated when he and the other pedestrian were five to seven feet into the street, they stopped walking to avoid being hit by defendant’s bus which passed in front of them. According to Lowe, plaintiff was approximately 10 feet outside of the crosswalk when the CTA bus struck plaintiff on his left side.

Yolonda Nash testified that she was a passenger on defendants’ bus at the time of the collision. She further testified that plaintiff remained inside the crosswalk and that the collision occurred inside the crosswalk. On direct examination, Nash stated that plaintiff walked into the bus. On cross-examination, however, Nash admitted she previously stated to an investigator that the bus hit plaintiff and that the latter statement was correct.

Following trial, the jury returned a verdict in favor of defendants and the trial court entered judgment consistent with the verdict. Plaintiff filed post-trial motions for a directed verdict, a judgment notwithstanding the verdict, and a new trial, all of which the trial court denied. This appeal followed.

First, plaintiff claims that the trial court erred in denying his motion for a directed verdict. In Illinois, the law is well settled that directed verdicts are properly granted only where the evidence, when viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the moving party that no contrary verdict could stand. (Santos v. Chicago Transit Authority (1990), 198 Ill. App. 3d 866, 868.) A directed verdict is improper where disputed issues of fact exist requiring either the assessment of witnesses’ credibility or the election between conflicting evidence. Wilson v. Chicago Transit Authority (1983), 118 Ill. App. 3d 714, 718.

In the present case, we believe there were conflicts in the evidence which supported the trial court’s decision to deny plaintiff’s motion for a directed verdict. There was conflicting testimony presented concerning whether defendant was inside the crosswalk when the collision occurred. Ms. Nash testified that defendant was inside that crosswalk, while defendant Robertson, Mr. Lowe, and plaintiff each testified that plaintiff was outside the crosswalk when the collision occurred.

Ms. Nash also presented conflicting testimony as to whether defendant was actually struck by defendant’s bus or whether plaintiff walked into the bus. No other witness testified that he actually saw the collision. Given these substantial conflicts in the evidence, we cannot say that plaintiff was entitled to judgment as a matter of law. (See Santos v. Chicago Transit Authority (1990), 198 Ill. App. 3d 866.) Hence, we hold that the trial court properly denied plaintiff’s motion for a directed verdict.

Plaintiff also contends that he should be granted a new trial arguing that the evidence, even when viewed in light most favorable to defendants, clearly demonstrates that defendants were negligent. Plaintiff claims that the jury’s finding of not guilty was contrary to the manifest weight of the evidence and, therefore, should be overturned. We cannot agree.

A reviewing court should not set aside a jury verdict unless it determines that the verdict is contrary to the manifest weight of the evidence. (Skelton v. Chicago Transit Authority (1991), 214 Ill. App. 3d 554, 580.) A jury verdict is considered against the manifest weight where “the opposite conclusion is clearly apparent or when the finding of the jury appears arbitrary or unsubstantiated by the evidence.” (Pharr v. Chicago Transit Authority (1991), 220 Ill. App. 3d 509, 521.) However, where credible evidence in favor of the defendant supports the verdict, the jury’s determination should not be disturbed. Skelton, 214 Ill. App. 3d at 580.

The determination of whether certain conduct was negligent is rarely made as a matter of law, but rather is left for the trier of fact to decide. (Johnson v. Colley (1986), 111 Ill. 2d 468, 475.) Also, it is the jury who weighs contradictory evidence and makes inferences from the evidence and draws the ultimate conclusion as to the facts. (Johnson v. Chicago Transit Authority (1975), 28 Ill. App. 3d 945, 950.) In the present case, the jury heard the evidence and determined that defendants were not negligent. The evidence, including testimony that plaintiff was outside the crosswalk when the collision occurred and that he, unlike the other pedestrians, did not see or hear the bus in question, supports the jury’s verdict. Therefore, we cannot say, as a matter of law, that the inferences and conclusions drawn by the jury are not supported by the evidence.

Notwithstanding, plaintiff cites Houston v. Chicago Transit Authority (1976), 35 Ill. App. 3d 428, to support his argument that defendants here were negligent. In Houston, plaintiff was injured by defendant’s bus while walking inside the crosswalk, and the court held that the pedestrian had the right-of-way and had no duty to keep a constant watch for turning vehicles. (Houston, 35 Ill. App. 3d at 431.) Here, however, plaintiff himself testified that he was outside the crosswalk when the collision occurred. This point alone sufficiently distinguishes Houston from the case at bar.

Moreover, Illinois law provides that a pedestrian crossing the roadway outside of the crosswalk must yield the right-of-way to all vehicles on the roadway. (Ill. Rev. Stat. 1983, ch. 95½, par. 11— 1003(a).) Plaintiff cannot reasonably maintain that the fact that he was outside of the crosswalk when the collision occurred bears some relevance to the issue of whether defendants were negligent. After reviewing the record, we do not find that the jury’s verdict was so clearly erroneous and wholly unwarranted that plaintiff should be granted a new trial.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI, P.J., and HOFFMAN, J., concur.


author: JUSTICE BUCKLEY

text:
    FRED W. BRZOZOWSKI, Plaintiff-Appellee and Cross-Appellant, v. NORTHERN TRUST COMPANY, Defendant-Appellant and Cross-Appellee.
    First District (1st Division)
    No. 1 — 92—0434
    Opinion filed June 1, 1993.

      Coffield, Ungaretti & Harris (Kevin M. Flynn and Ann L. Gibson, of counsel), and The Northern Trust Company, Legal Department (Rose A. Ellis, of counsel), both of Chicago, for appellant.
    Law Offices of Joseph A. Macaluso, of Chicago (Joseph A. Macaluso and Robert J. Shelist, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff Fred Brzozowski brought a declaratory judgment action against defendant The Northern Trust Company to determine plaintiff’s rights and obligations as the guarantor under a guaranty agreement-entered into with defendant. Plaintiff specifically sought the return of funds being held by defendant and a declaration that any liability of plaintiff to defendant is released and extinguished. After a bench trial, the circuit court held that the guaranty between plaintiff and defendant was enforceable and that plaintiff was liable to defendant under the terms of it in the amount of $38,100. The circuit court also found that plaintiff was liable, pursuant to the guaranty, for defendant’s attorney fees and costs incurred in connection with enforcing the guaranty and collecting the indebtedness in the maximum amount of $8,165.77. Further, the court ordered that the remainder of plaintiff’s funds being held by defendant be released. Finally, the court found that the defenses of release of collateral, impairment of collateral and material change were waived by the terms of the guaranty.

Defendant appeals the circuit court’s judgment limiting the attorney fees and expenses which it could recover from plaintiff and restricting its right of setoff. Additionally, defendant appeals the order granting plaintiff leave to amend his complaint to include a count for reformation.

Plaintiff filed a cross-appeal. He argues that the circuit court erred in finding that (1) a valid and enforceable contract existed between him and defendant; (2) he was not entitled to rescission of the guaranty as a matter of law; (3) the waiver language of the guaranty applied to the facts of this case; (4) he failed to establish a prima facie case of lack of good faith; and (5) he was responsible for defendant’s attorney fees and costs.

Plaintiff and defendant entered into a guaranty agreement on July 25, 1985, whereby plaintiff guaranteed the indebtedness of Nicholas J. Ahrens to defendant. The preprinted form guaranty states that it applies to all indebtedness and other obligations of Ahrens to defendant. The amount of $38,100 was typed into the right of recovery limitation provision. There was also a provision in which plaintiff guaranteed the interest on the indebtedness and all expenses including attorney fees and legal expenses incurred by defendant in endeavoring to collect the above-mentioned indebtedness and in enforcing the guaranty.

The debt underlying the guaranty was owed by Ahrens to defendant and was secured by, inter alia, an associate membership to the Chicago Board of Trade (CBOT). Due to tax deficiencies, indebtedness to defendant and other personal indebtedness, Ahrens decided to sell his CBOT membership for $272,000. The outstanding balance of Ahrens’ indebtedness to defendant at the time of the sale of the membership was $262,000, and his debt to the Internal Revenue Service (IRS) was in excess of that owed to defendant. The proceeds of that sale were subject to the CBOT’s Exchange Rule to Hierarchy of Claims. Ahrens, the IRS and defendant, through loan officer Robert Jones, agreed to a certain distribution of the proceeds from that sale. After the sale, defendant received $100,000, the IRS received $122,000 and Ahrens retained $50,000 in order to continue trading. Jones testified at trial that he believed that the agreement and resulting distribution were in the best interests of defendant, plaintiff and Ahrens, reasoning that defendant received a significant payment towards Ahrens’ debt, Ahrens remained solvent and defendant did not need to call the guaranty.

Subsequent to the CBOT membership sale, Ahrens continued to make payments to defendant. Eventually, however, Ahrens began having financial difficulty. In October 1990, defendant discussed with plaintiff the poor payment record of Ahrens, but at that time did not call for payment under the guaranty. On December 14, 1990, defendant notified plaintiff of its intent to enforce the guaranty because of Ahrens’ failure to pay the underlying debt. Under the terms of the guaranty, defendant asserted its right to set off amounts owed by plaintiff under the guaranty by holding one of his depository accounts in the amount of $77,436.86. On March 18, 1991, plaintiff filed the declaratory judgment action. After the bench trial, defendant filed this appeal and plaintiff cross-appealed.

The logical manner in which to review the issues presented here is to resolve plaintiff’s cross-appeal issues prior to defendant’s issues. Thus, we will discuss plaintiff’s five cross-appeal issues and then address defendant’s three issues on appeal.

On cross-appeal, plaintiff contends that the circuit court erred in finding that the guaranty was an unambiguous, valid and enforceable contract. Plaintiff argues that the guaranty is ambiguous because the first paragraph indicates that he is liable to defendant absolutely and unconditionally for Ahrens’ entire indebtedness including expenses and attorney fees incurred in endeavoring to collect such indebtedness and in enforcing the guaranty, but the second paragraph limits defendant’s right of recovery against him to $38,100. The guaranty is a standard preprinted form. The dollar amount limitation of the right of recovery was typed onto the form and prominently stands out from the other provisions in it.

Ambiguity exists in a contract where, as written, the contract is susceptible to more than one meaning. (Lease Management Corp. v. G.I.C. Financial Services (1990), 202 Ill. App. 3d 188, 559 N.E.2d 880.) However, where ambiguities exist in a contract between two provisions, the more specific provision relating to the same subject matter controls over the more general provision. (Lima Lake Drainage District v. Hunt Drainage District (1990), 204 Ill. App. 3d 521, 561 N.E.2d 1351.) Therefore, where one intention is expressed in one provision of a contract and a conflicting intention appears in another provision, full effect should be given to the more principal and specific provision, and the general provision should be subjected to such modification or qualification as the specific provisions make necessary. (McDonald’s Corp. v. Butler Co. (1987), 158 Ill. App. 3d 902, 511 N.E.2d 912.) Furthermore, where an ambiguity exists between a typed provision and the printed form, then the typed provision is to be given effect over the printed provision. (Farmers & Mechanics Bank v. Davies (1981), 97 Ill. App. 3d 195, 422 N.E.2d 864.) Where a court is able to determine the meaning of the language in a contract, the express provisions govern and. no construction or inquiry as to intent is necessary. P.A. Bergner & Co. v. Lloyds Jewelers, Inc. (1986), 112 Ill. 2d 196, 492 N.E.2d 1288.

The guaranty in the instant case does contain two contrary provisions in the first and second paragraphs regarding the amount recoverable from plaintiff. The circuit court properly gave effect to the typed provision limiting the amount recoverable from plaintiff to $38,100 plus attorney fees and costs in collecting and enforcing the guaranty. Accordingly, we affirm the circuit court’s finding that the complained-of contradiction in the first and second paragraphs did not render the guaranty invalid or unenforceable.

Next, plaintiff argues that he is entitled to rescission of the guaranty as a matter of law because he intended that his obligation under the guaranty be limited to $38,100. Illinois does recognize a right to rescind a contract based upon unilateral mistake. (See Cummings v. Dusenbury (1984), 129 Ill. App. 3d 338, 472 N.E.2d 575.) A unilateral mistake occurs if

“ '*** there is apparently a valid contract in writing, but by reason of a mistake of fact by one of the parties, not due to his negligence, the contract is different with respect to the subject matter or terms from what was intended, equity will give to such party a remedy by cancellation where the parties can be placed in statu quo.’ ” (Cummings, 129 Ill. App. 3d at 342, 472 N.E.2d at 578, quoting Steinmeyer v. Schroeppel (1907), 226 Ill. 9, 13, 80 N.E. 564, 565.)

The three requirements for rescission based upon unilateral mistake are (1) the mistake must relate to a material feature of the contract, (2) the mistake must have occurred despite the exercise of reasonable care, and (3) the other party must be placed in the position it was in prior to the contract being made. John J. Calnan Co. v. Talsma Builders, Inc. (1977), 67 Ill. 2d 213, 367 N.E.2d 695.

In the case at bar, the alleged mistake, the amount of plaintiff’s maximum obligation to defendant, is a material feature of the contract. The circuit court, however, found that the specific typed provision limiting plaintiff’s responsibility to $38,100 be given effect and we affirmed that finding. Thus, there was no mistake as plaintiff alleges. Furthermore, defendant cannot be placed in the position it was in prior to the guaranty being signed. Defendant loaned Ahrens money relying on plaintiff’s execution of the guaranty. Defendant would have to be able to receive the loaned money back if it were to be placed in the position it was in prior to the execution of the guaranty. Clearly, defendant cannot get the loaned money back from Ahrens and that is the reason it enforced the guaranty. Therefore, we affirm the circuit court’s refusal to rescind the guaranty.

Plaintiff’s third contention is that the circuit court erred in applying the waiver language of the guaranty to the facts of this case. Plaintiff argues that defendant had an affirmative obligation and duty to collect the full amount of the proceeds from the sale of Ahrens’ CBOT membership and satisfy and extinguish Ahrens’ indebtedness. The pertinent part of the waiver language of the guaranty is as follows:

“[Defendant] may at any time and from time to time, without notice to [plaintiff], take any or all of the following actions without affecting or impairing the liability of [plaintiff] on this guaranty: (a) renew or extend time of payment of the Indebtedness; (b) accept, substitute, release or surrender any security for the Indebtedness ***. The liability of [plaintiff] under this guaranty shall in no way be affected or impaired by any failure or delaying in enforcing payment of the Indebtedness or this guaranty or any security therefor, or in exercising any right or power in respect thereto, or by any compromise, waiver, settlement, change, subordination, modification or disposition of the Indebtedness or of any security for the Indebtedness or for this guaranty.”

The guaranty further states that “there shall be no obligation on the part of [defendant], at any time, to resort for payment to [Ahrens] or any other guaranty or to any security for the Indebtedness.”

A guarantor may consent to changes to an underlying debt or to releases of security for such a debt by clear language in the guaranty. (Bank of Homewood v. Sjo (1983), 113 Ill. App. 3d 179, 446 N.E.2d 1214.) In Bank of Homewood, the appellate court held that a guarantor was not released from his obligations under a guaranty due to the lender’s release of a co-debtor from his responsibilities of the underlying debt, because the language of the guaranty provided that

“any and all such collateral and security and guaranties and other obligors, if any, may, from time to time, without notice to or consent of the undersigned, be sold, released *** without in any manner affecting or impairing the liability of the undersigned.” (Emphasis added.) Bank of Homewood, 113 Ill. App. 3d at 181-82, 446 N.E.2d at 1216.

Just as in Bank of Homewood, where the lender had a right to release a co-debtor without affecting the validity of the guaranty, defendant in the instant case had the right to release Ahrens’ collateral. Moreover, according to the terms of the guaranty, defendant had no obligation to collect the full amount of the proceeds from the sale of that collateral. The guaranty states that defendant is entitled to release the collateral and enter into any settlement regarding it without affecting or impairing the guaranty. Thus, we hold that the circuit court properly applied the guaranty’s waiver language to the facts of this case and found that the release of the collateral and subsequent settlement regarding proceeds from the sale of it in no way affected defendant’s ability to enforce the guaranty.

Fourth, plaintiff argues that the circuit court erred in failing to find that he had established a prima facie case of lack of good faith. Plaintiff bases his assertion of lack of good faith on the fact that defendant failed to disclose the details of the agreement between it, Ahrens and the IRS regarding distribution of proceeds from the sale of the CBOT membership.

A guaranty includes an implied obligation of good faith between the parties in regard to the transaction. (Morris v. Columbia National Bank (N.D. Ill. 1987), 79 Bankr. 777.) This duty of good faith requires the lender not to injure the guarantor by action or omission and not to act inconsistently with the guarantor’s rights. (Morris, 79 Bankr. at 785, quoting Barrett v. Shanks (1943), 382 Ill. 434, 47 N.E.2d 481.) The lender, however, is not in a fiduciary relationship with the guarantor, and consequently, “the threshold for finding that [defendant] did not act in good faith amounts to the same standard as fraudulent conduct.” (Morris, 79 Bankr. at 785.) Thus, a lender has a good-faith duty to disclose circumstances which materially increase the risk to the guarantor, to avoid working a fraud on him. Morris, 79 Bankr. at 785; McHenry State Bank v. Y & A Trucking, Inc. (1983), 117 Ill. App. 3d 629, 454 N.E.2d 345.

Plaintiff’s reliance on Morris and McHenry State Bank is misplaced. In Morris, the bankruptcy court did not consider the issue of good faith and, therefore, the case was remanded for such determination. (Morris, 79 Bankr. at 785.) In the case at bar, the circuit court fully considered plaintiff’s claim of lack of good faith and found that he did not establish a prima facie case. McHenry State Bank is inapplicable here because there was no evidence that the guaranty in that case contained any waiver language which would allow the lender to release collateral. Accordingly, the lender’s failure in McHenry State Bank to perfect a security interest materially increased the guarantor’s risk beyond that contemplated by the guaranty. In the instant case, however, the guaranty clearly permits defendant to release the collateral and enter into settlements regarding it, without notice to plaintiff and without affecting the enforceability of the guaranty.

Since defendant was allowed by the guaranty to release collateral and enter into settlements, plaintiff had knowledge that his risk existed throughout the duration of the guaranty. Therefore, defendant’s actions regarding the sale of the CBOT membership and the settlement agreement concerning the proceeds therefrom did not materially increase any risk of which plaintiff was or should have been aware. We agree with the circuit court that there was no evidence of fraudulent conduct on the part of defendant or any indication of bad faith.

Fifth, plaintiff argues that because of the amount typed into the right of recovery provision in the guaranty, defendant cannot recover more than $38,100 from him. Plaintiff specifically contends that the $38,100 amount includes not only the debt amount, but the legal expenses and attorney fees which defendant may collect from him. The guaranty, however, is clear. It states that defendant’s right of recovery against plaintiff is “limited to the amount of $38,100 plus the interest on such amount and plus all expenses hereinbefore mentioned.” (Emphasis added.) The expenses “hereinbefore mentioned” include attorney fees and legal expenses paid or incurred by defendant in collecting and enforcing the guaranty. We, therefore, find that the circuit court did not err in finding that plaintiff was responsible for attorney fees and expenses in addition to the $38,100.

Now we review defendant’s issues on appeal. Defendant initially argues that the circuit court erred in failing to enforce the provisions of the guaranty regarding the payment of attorney fees and costs in connection with the underlying litigation from which this appeal originates. The circuit court found that plaintiff should not be held responsible for any of defendant’s attorney fees or other expenses related to the instant lawsuit. We agree.

The guaranty states that plaintiff is obligated to pay all expenses including attorney fees and costs paid or incurred by defendant in endeavoring to collect the indebtedness and in enforcing the guaranty. Defendant is correct that it is well-settled that courts will enforce provisions in contracts for the award of attorney fees. (Hadley Gear Manufacturing Co. v. Zmigrocki (1986), 152 Ill. App. 3d 358, 502 N.E.2d 6.) Where parties have agreed to shift the obligation for attorney fees, the court will award reasonable attorney fees according to the specific provisions of the contract. 334 Barry In Town Homes, Inc. v. Farago (1990), 205 Ill. App. 3d 846, 563 N.E.2d 856; In re Estate of Szorek (1990), 194 Ill. App. 3d 750, 551 N.E.2d 697.

In the case at bar, defendant held one of plaintiff’s depository accounts in the amount of $77,436.86. Out of this amount, $38,100 was properly applied pursuant to the guaranty to pay down the indebtedness covered by it. Defendant claims that the remainder of those funds, approximately $39,336.86, was being held to ensure plaintiff’s obligation under the guaranty to pay attorney fees and costs incurred in collecting the indebtedness. Thus, defendant was holding funds to cover legal fees and costs in an amount greater than the indebtedness plaintiff guaranteed. As a result of defendant’s blatant overreaching, plaintiff filed the declaratory judgment action. The circuit court has discretion to determine the reasonableness of attorney fees and costs pursuant to contractual provisions. (Mercado v. Calumet Federal Savings & Loan Association (1990), 196 Ill. App. 3d 483, 554 N.E.2d 305.) Since defendant’s overreaching caused plaintiff to file this -case, the circuit court’s decision that plaintiff is not responsible for defendant’s attorney fees and costs associated with it because it would be unreasonable is not an abuse of discretion.

Defendant’s next contention is that the circuit court’s decision in limiting plaintiff’s obligation to pay defendant’s attorney fees and costs in endeavoring to collect the indebtedness was unreasonable. Defendant, citing The Northern Trust Co. v. Brown (N.D. Ill. August 31, 1992), No. 91 C 3136, argues that the guaranty covers all legal costs and fees in connection with collecting Ahrens’ total indebtedness to it, which exceeded $200,000. The circuit court found and we agreed that plaintiff guaranteed Ahrens’ indebtedness for the principal amount of $38,100, not $200,000. In The Northern Trust Co. case cited by defendant, there is no indication that there was an amount typed into the right of recovery provision in the guaranty. In the instant case, there was a typed amount, and that fact distinguishes this case from the above-cited case.

In the case at bar, the circuit court held that the maximum amount of attorney fees and/or costs of collection sought from plaintiff cannot exceed the percentage that the principal amount of the guaranty bears to the total amount of the debt which is sought to be collected, provided that such costs and fees are reasonable. Using that formula, the circuit court further found that defendant was not entitled to hold more than $8,165.77 for attorney fees and costs, which is 21.43% of $38,100. We reiterate that the circuit court’s determination concerning awarding of attorney fees and costs is discretionary and should not be reversed absent a clear abuse of discretion. (Galowich v. Beech Aircraft Corp. (1991), 209 Ill. App. 3d 128, 568 N.E.2d 46.) We find that the court’s determination of attorney fees and costs was reasonable.

Finally, defendant argues that the circuit court erred in granting plaintiff leave to file an amendment to his complaint to include a count for reformation because he did not raise the theory at trial and there was no evidence in the record to support such a theory. Section 2 — 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616(c)) provides that pleadings may be amended at any time, before or after judgment, to conform the pleadings to the proof. The decision to allow an amendment to the pleadings at any time prior to final judgment lies within the sound discretion of the circuit court. (Rosengard v. McDonald (1990), 205 Ill. App. 3d 208, 562 N.E.2d 583.) Thus, the circuit court’s decision will not be disturbed on review except in cases of clear abuse of discretion. (Trident Industrial Products Corp. v. American National Bank & Trust Co. (1986), 149 Ill. App. 3d 857, 501 N.E.2d 273.) The test for determining whether a court’s discretion was properly exercised in permitting an amendment is whether allowance of the amendment furthers the ends of justice. Trident Industrial Products, 149 Ill. App. 3d 857, 501 N.E.2d 273.

The circuit court determined that plaintiff guaranteed $38,100 of Ahrens’ underlying indebtedness to defendant, which was far in excess of that amount. However, since the guaranty was silent as to how much responsibility plaintiff had regarding legal fees and costs, the circuit court reformed it by imposing the formula discussed above. The record and the appellate briefs do not divulge any evidence that the circuit court abused its discretion in allowing plaintiff to amend the complaint.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

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


text:
    RESOLUTION TRUST CORPORATION, Plaintiff-Appellee, v. RICHARD M. HOLTZMAN et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1 — 91—2539
    Opinion filed June 2, 1993.
    Rehearing denied July 19, 1993.

      Robert K. Blain, of Law Offices of Robert K. Blain, of Chicago, for appellants.
    Daniel S. Hefter and Edward M. Benyas, both of Hefter & Radke, of Chicago, for appellee.
   JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiff, Resolution Trust Corporation, filed an action to foreclose a mortgage secured by a multi-unit apartment building, title to which is in codefendant Harris Trust & Savings Bank, as trustee, under trust agreement known as trust No. 43840. Richard M. Holtzman (Holtzman) guaranteed the mortgage note and was joined as a defendant.

The trial court entered judgment for foreclosure in favor of plaintiff, later confirmed the sheriff’s sale in the sum of $414,800 and entered a deficiency judgment against Holtzman for $398,207.67 on the guaranty.

On appeal, defendants contend that the trial court erred in (1) denying defendants leave to file an amended affirmative defense and counterclaim alleging plaintiffs breach of a duty of good faith and fair dealing, and (2) approving the sheriff’s sale which defendants allege yielded a grossly inadequate bid below the market value of the subject premises.

For the reasons which follow, we affirm the trial court’s judgment of foreclosure but reverse the order confirming the sale to allow the trial court to afford a hearing to defendants by reason of sections 15 — 1508(b)(2) and (b)(3) of the Illinois Mortgage Foreclosure Law (Ill. Rev. Stat. 1989, ch. 110, pars. 15 — 1508(b)(2), (b)(3)).

On December 9, 1988, defendants obtained a $900,000 loan from plaintiff’s predecessor to purchase a residential apartment building located at 1029 West Bryn Mawr in Chicago. The loan was secured by a mortgage in favor of plaintiff’s predecessor as the mortgagee and defendant Harris Trust & Savings Bank, as trustee, was the mortgagor and the mortgage note was personally guaranteed by defendant Holtzman.

On or about June 1, 1989, defendants defaulted in payments required under the mortgage, a balance of $677,730.47 being then due. Plaintiff then filed a complaint to foreclose.

Thereafter, on February 14, 1990, plaintiff filed an amended complaint seeking in count I to foreclose the mortgage and in count II to obtain a judgment against the personal guarantor (Holtzman) for any deficiency.

Defendants filed their answer to plaintiff’s amended complaint and an affirmative defense. Defendants admitted default in the payment of the installment which became due on June 1, 1989. However, by affirmative defense, defendants asserted that plaintiff breached an oral agreement by refusing to permit the marketing of the apartments as condominiums which would have required plaintiff to consent to the filing of a condominium declaration and subordination of the mortgage to it and provide for partial releases from the mortgage loan. Plaintiff claims that the continued ownership and development of the premises were not otherwise economically feasible.

Thereafter, plaintiff filed a motion for judgment which included a prayer that the affirmative defense be stricken by reason of the merger into the mortgage of any previous oral agreement.

On August 15, 1990, defendants asked leave to file amended affirmative defenses which essentially reiterated their original affirmative defense that plaintiff had breached an oral agreement by refusing to allow for the conversion of the premises into condominiums and additionally suggested a breach of paragraph 12 of the mortgage document, which authorized the plaintiff, at its option and without giving notice, to extend payment or reduce payments, release any person as to any indebtedness, accept renewal notes, modify the terms of payment from time to time, take on additional security, or release any part of the encumbered property from the lien of the mortgage.

On September 17, 1990, the trial court entered an order granting plaintiff’s motion for judgment, implicitly striking defendants’ affirmative defenses, and denying defendants' then pending motion for leave to file the August 15 amended affirmative defenses. The judgment order directed a sheriff’s sale upon defendants’ failure to redeem and expressly retained jurisdiction of the subject matter for the purpose of enforcing the judgment order.

Fifty-three days after the entry of the judgment for foreclosure, defendants filed a motion to vacate that judgment and for leave to file additional amended affirmative defenses and counterclaim. The original affirmative defenses alleged plaintiff’s failure to comply with the terms of an oral agreement to allow the mortgage to be subrogated to the condominium declaration while the later affirmative defenses alleged plaintiff’s contractual breach of a duty of good faith and fair dealing.

Defendants’ affirmative defenses contained exhibits of letters from defendants to plaintiff requesting plaintiff’s consent to condominium conversion and a claim that four or five units out of eight had already been accounted for and their sales could be closed to provide plaintiff with sufficient funds to satisfy the entire mortgage obligation. Additionally, letters from plaintiff were attached indicating plaintiff’s agreement to execute condominium conversion documents, place them in escrow, and provide for them to be spread of record upon closing and payment of the proceeds of the various real estate transactions defendants allegedly were negotiating.

On December 7, 1990, the trial court denied defendants’ motion to vacate and determined that the theory of breach of good faith and the covenant to deal fairly was not properly “postulated in this mortgagor/mortgagee relationship.”

On December 12, 1990, the sheriff’s sale was held and the only bid at the sale was submitted by plaintiff in the amount of $414,800. After the sale upon these terms, there remained a deficiency of $398,207.67 on the mortgage indebtedness.

Thereafter, plaintiff sought an order confirming the sale and applied for entry of a judgment on count II of the complaint which would impose a deficiency judgment against defendant Holtzman on his personal guarantee on the amount of the deficiency. In its response to plaintiff’s motion, defendants asserted that the amount of plaintiff’s accepted bid was inadequate on the basis of prior appraisals of the property, that the court should allow discovery with respect to the fair market value of the property and provide a full evidentiary hearing in that regard.

On February 14, 1991, the trial court entered an order confirming the sheriff’s sale and a judgment against Holtzman on count II of plaintiff’s complaint in the amount of $398,207.67 plus interest.

On appeal, defendants first assert that the trial court erred in its December 7, 1990, order by denying them leave to present their affirmative defenses based on plaintiff’s alleged breach of its duty of good faith and fair dealing.

Plaintiff contends that the denial of defendants’ motion to file amended affirmative defenses and counterclaim was proper because defendants raised no legally cognizable defense or counterclaim, and because defendants’ motion was untimely since the trial court had already entered judgment on this matter on September 27, 1990. Plaintiff argues that the trial court correctly ruled “that a lender has no implied covenant of good faith and fair dealing to relinquish a part of its security prior to receipt of payment in full.”

The parties correctly agree that the decision to grant leave to file amended affirmative defenses and a counterclaim rests within the sound discretion of the trial court and such decision will not be disturbed absent an abuse of that discretion. Champaign National Bank v. Landers Seed Co. (1990), 194 Ill. App. 3d 1019, 551 N.E.2d 1122 (no abuse of discretion to deny the defendants’ request to file a third affirmative defense).

Amendment of pleadings is not an absolute right despite our State’s liberal policy of permitting amendment of pleadings. (In re Estate of Sutera (1990), 199 Ill. App. 3d 531, 540, 557 N.E.2d 371.) Rather, amendment may be allowed only at the trial court’s discretion. Sutera, 199 Ill. App. 3d at 540.

Before the entry of final judgment, a trial court has broad discretion in motions to amend pleadings. Tongate v. Wyeth Laboratories (1991), 220 Ill. App. 3d 952, 970, 580 N.E.2d 1220 (no abuse of discretion to deny plaintiffs’ request to amend their complaint five weeks before trial).

The right to amend pleadings, however, is not absolute. (Trans World Airlines, Inc. v. Martin Automatic, Inc. (1991), 215 Ill. App. 3d 622, 627, 575 N.E.2d 592 (TWA).) “The test to be applied in determining whether the trial court’s discretion was properly exercised is whether allowance of the amendment furthers the ends of justice.” TWA, 215 Ill. App. 3d at 628 (no abuse of discretion in denying defendant’s motion to file a second amended counterclaim).

In its determination of whether to allow amendment to pleadings, the trial court can consider the timeliness of such request (TWA, 215 Ill. App. 3d at 627), previous opportunities to assert a claim, and the ultimate efficacy of the claim (Champaign National Bank, 194 Ill. App. 3d at 1027).

As to the timeliness, we have already noted that the motion was filed 53 days after the entry of judgment. Section 2 — 616 of the Code of Civil Procedure authorizes. amendment at any time before final judgment except as to amendments to conform the pleadings to the proofs. (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 616(a), (c).) We shall riot rest our opinion on whether or not the judgment of foreclosure was a final judgment within the meaning of section 2 — 616 and could only be vacated by a section 2 — 1401 petition (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). We believe defendants have not been timely for the purposes of a motion under section 2 — 1203. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203.) The judgment of foreclosure might not meet the definition of final judgment for the purpose of instituting an appeal but does meet the standard for section 2 — 616. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616.

In any event, the trial court considered the ultimate efficacy of defendants’ claims and found that the tendered affirmative defenses did not advance a cognizable legal theory which would abate the foreclosure. We agree.

A mortgage is an interest in land created by a written instrument providing security for the performance of a duty or the payment of a debt. (In re Application of Busse (1984), 124 Ill. App. 3d 433, 440, 464 N.E.2d 651.) The mortgage instrument is merely a contract as between the immediate parties. (Petkus v. St. Charles Savings & Loan Association (1989), 182 Ill. App. 3d 327, 330, 538 N.E.2d 766.) The rules of contract provide that the parties to a contract are presumed to have intended what their language clearly imports so that a trial court has no discretion to require parties to accept any terms other than those in their contract. Bornstein v. First United (1992), 232 Ill. App. 3d 623, 630, 597 N.E.2d 870.

The mortgage instrument in the present case states that “upon payment in full, the mortgage will be released.” Defendants admit that the mortgage does not contain any provision to consider partial release of the mortgage upon the renovation of individual units. Furthermore, defendants do not contend, nor could they, that the mortgage is ambiguous. See Farmers & Mechanics Bank v. Davies (1981), 97 Ill. App. 3d 195, 201, 422 N.E.2d 864 (if ambiguous, the mortgage should be construed against its maker).

The paragraph in the mortgage upon which defendants rely provides the lender with a series of options which at its sole discretion it may wish to exercise. Plaintiff could have allowed its mortgage to be subordinated to the condominium declaration, could have provided for partial releases, and could have had a greater understanding for defendants’ economic problems. However, nothing in the mortgage documents requires a lender to soften its position or its heart.

When. the terms of a contract are clear and unambiguous, they must be enforced as written and no court can rewrite a contract to provide a better bargain to suit one of the parties. Continental Mobile Telephone Co. v. Chicago SMSA Ltd. Partnership (1992), 225 Ill. App. 3d 317, 323, 587 N.E.2d 1169; UIDC Management, Inc. v. Sears Roebuck &Co. (1986), 141 Ill. App. 3d 227, 230, 490 N.E.2d 164 (“the court does not have the authority to rewrite the contract into one which the parties did not enter into”).

While we may entertain sympathy for the mortgagor desperately seeking to vary the terms of the security instruments, we should be tempered by remembering that lender and borrower enjoy the freedom of the marketplace to negotiate whatever they wisely or foolishly believe is in their best interests and a court is powerless to alter the clear terms of a mortgage contract. National Acceptance Co. of America v. Exchange National Bank (1968), 101 Ill. App. 2d 396, 405, 243 N.E.2d 264.

Although every contract implies good faith and fair dealing (First National Bank v. Sylvester (1990), 196 Ill. App. 3d 902, 910, 554 N.E.2d 1063), the duty of good faith and fair dealing is, as conceded by defendants, a derivative principle of contract law, (La Scola v. U S Sprint Communications (N.D. Ill. 1990), 739 E Supp. 431, 436.) While this obligation exists in every contract in Illinois, it is essentially used as a construction aid in determining the intent of the parties where an instrument is susceptible of two conflicting constructions. Calumet Construction Corp. v. Metropolitan Sanitary District (1991), 222 Ill. App. 3d 374, 381, 581 N.E.2d 206; Anderson v. Burton Associates, Ltd. (1991), 218 Ill. App. 3d 261, 267, 578 N.E.2d 199.

Generally, problems involving the duty of good faith and fair dealing arise where one party to a contract is given broad discretion in performance. The doctrine of good faith then requires the party vested with contractual discretion to exercise that discretion reasonably and with proper motive, not arbitrarily, capriciously, or in a manner inconsistent with the reasonable expectations of the parties. Syl vester, 196 Ill. App. 3d at 910-11; Dayan v. McDonald’s Corp. (1984), 125 Ill. App. 3d 972, 990-91, 466 N.E.2d 958.

Paragraph 12 of the mortgage upon which defendants rely did not repose in plaintiff the kind of discretion described in Sylvester and Dayan. Parties are entitled to enforce the terms of negotiated contracts to the letter without being mulcted for lack of good faith. (Hentze v. Unverfehrt (1992), 237 Ill. App. 3d 606, 611, 604 N.E.2d 536.) Express covenants abrogate the operation of implied covenants so courts will not permit implied agreements to overrule or modify the express contract of the parties. Sol K. Graff & Sons v. Leopold (1981), 92 Ill. App. 3d 769, 772, 416 N.E.2d 275.

In addition, we note that defendants’ offer was not based upon clear and concrete terms but rather rested upon the speculation that the units could be more effectively marketed by a change in the form of ownership of the premises. It is not surprising that a cautious lender is reluctant to recast the loan based on the dreams and hopes of a developer, albeit a seemingly most sincere one.

For all the foregoing reasons, we find that the trial court did not abuse its discretion in disallowing defendants’ affirmative defense of a breach of the covenant of good faith and fair dealing since such defense is inapplicable in the present case. See Anderson, 218 Ill. App. 3d at 267.

Second, defendants assert that the trial court erred in approving the sheriff’s sale because the accepted selling price was so low as to demonstrate that justice was clearly not done.

The Illinois Mortgage Foreclosure Law provides that following a sheriff’s sale, the court shall enter an order confirming the sale unless the court finds that: (1) proper notice was not given; (2) the terms of the sale were unconscionable; (3) the sale was conducted fraudulently; or (4) justice was otherwise not done. (Ill. Rev. Stat. 1989, ch. 110, par. 15 — 1508(b).) The argument advanced by defendants is that the accepted bid was so low as to be unconscionable and that the large deficiency judgment, by reason of the low bid, resulted in justice not being done.

The parties correctly agree that the Illinois Supreme Court, even before the 1987 amendment to the Illinois Mortgage Foreclosure Law, in Levy v. Broadway-Carmen Building Corp. (1937), 366 Ill. 279, 288, 8 N.E.2d 671, held that courts have the discretion to disapprove a judicial sale “where the amount bid is so grossly inadequate that it shocks the conscience of a court of equity.”

However, prior to the 1987 amendment, courts consistently held that mere inadequacy of price was not a sufficient reason to disturb a judicial sale unless there were some other irregularities. Unless there was evidence of mistake, fraud or violation of duty by the officers conducting the sale, price alone would not be sufficient cause to set aside a sale. (See, e.g., Mini Federal Savings & Loan Association v. Doering (1987), 162 Ill. App. 3d 768, 771-72, 516 N.E.2d 609 (and cases cited therein).) This rule is premised on the policy which provides stability and permanency to judicial sales, and on the well-established acknowledgment that property does not bring its full value at forced sales and that the price depends on many circumstances for which the debtor must expect to suffer a loss. Illini Federal, 162 Ill. App. 3d at 771-72.

In the present case, the sheriff’s sale was held on December 12, 1990, and the accepted highest bid was $414,800. Defendants maintain that this bid should be compared with an early 1988 appraisal, which valued the property at $1.2 million. Plaintiff submits that the 1990 appraisal which valued the property at or near the time of sale at $488,000 is the pertinent comparison figure.

We must acknowledge that the General Assembly intended to create a new, but limited, level of inquiry. Courts were directed to conduct a hearing on the confirmation of the foreclosure sale. The court is empowered under certain circumstances to examine whether the terms of sale were unconscionable. The legislature, however, did not intend to impose upon the court the kind of inquiry provided in the Uniform Commercial Code that all sales “must be commercially reasonable” (Ill. Rev. Stat. 1983, ch. 26, par. 9 — 504(3); Standard Bank & Trust Co. v. Callaghan (1988), 177 Ill. App. 3d 973, 532 N.E.2d 1015) or in the Bankruptcy Act, which requires aggressive advertising of the proposed sale and a foreclosure sale price of “a reasonably equivalent value” for the property (11 U.S.C. §548(a)(2)(A) (Supp. TV 1986); In re Bundles (7th Cir. 1988), 856 F.2d 815).

Even after the 1987 amendment, courts have cited Mini Federal with approval. In Lyons Savings & Loan Association v. Gash Associates (1989), 189 Ill. App. 3d 684, 545 N.E.2d 412, the defendant submitted fairly recent appraisals by affidavit that showed value of the premises at 25% to 45% in excess of the judicial sale. Affidavits were tendered by the plaintiff placing the value just below the bid price. Notwithstanding this disparity, the Lyons court affirmed the trial court’s determination that the bid was not grossly inadequate. Although the disparity between defendants’ appraisal and the bid price is greater in the instant case, the appraisal here is significantly more remote in time and accordingly, of less probative value.

Although the bid is only 34% of the old appraisal, it represents 84% of the more current appraisal. Before the 1987 statute, but on authority of Levy, this court declined to disturb a judicial sale which generated a best bid amounting to less than 33% of an appraised value of the property. Glanz v. Taken (1937), 293 Ill. App. 74, 11 N.E.2d 634.

Our courts can probably look forward to a plethora of mortgage foreclosures on many parcels which were the subject matter of loans predicated upon inflated or suspect real estate appraisals submitted by borrowers to financial institutions whose assets are now operated by the Resolution Trust Corporation.

We do not believe that the General Assembly intended to require an extended evidentiary hearing after each sheriff’s sale. To determine the extent of the hearing to be afforded the mortgagor, the court should look to the defendant’s petition or motion, and if there is an allegation of a current appraisal or other current indicia of value which is so measurably different than the sales price as to be unconscionable, then a hearing should be afforded the defendant. On the other hand, if the allegation of unconscionability rests on an appraisal rendered remote in time, the requisite of a formal hearing is not required under the amendatory act.

Defendants in the present case offer more than merely a 34-month-old appraisal. They also allege that during 1989 and 1990, buyers of units were available and, in at least one case went to contract, at prices which would have fully satisfied the mortgage obligation upon the sale of only four of eight units. Only when the less-than-current appraisal is coupled with these later potential sales can we conclude that defendants were entitled to an evidentiary hearing and limited discovery necessary to prepare for the narrow scope of the hearing for which we here provide.

We therefore affirm in part and reverse in part, remanding for a hearing in accordance with the views expressed herein.

Affirmed in part; reversed in part and remanded.

TULLY, P.J., and RIZZI, J., concur.

       Resolution Trust Corporation was substituted for the original plaintiff, Great American Savings & Loan Association, after control of Great American was assumed by Resolution Trust Corporation during the pendency of this litigation.