author: JUSTICE LaPORTA

text:
    DANNY SHEPPARD, Plaintiff-Appellant, v. FREDERIC B. KROL, Defendant-Appellee.
    First District (6th Division)
    No. 1-89-0397
    Opinion filed August 2, 1991.

      Lane & Munday and Frank Leonard LaPort & Associates, Ltd., both of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Thomas L. Browne, and Mark M. Christerson, of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff brought suit against defendant alleging legal malpractice due to negligent representation. On defendant’s motion, the trial court dismissed his first amended complaint with prejudice for failure to state a cause of action. Plaintiff appealed.

In his first amended complaint, plaintiff alleged that in the course of his employment with Jay’s Foods, Inc., he was required to operate a certain forklift truck. He alleged that on September 6, 1983, while he was standing in close proximity to it, the unattended forklift -with motor running suddenly changed gears from neutral to reverse and struck him, causing his injuries. Plaintiff alleged that the forklift was defective and unreasonably dangerous as a result of a design or mechanical defect present when purchased by Jay’s Foods and was defective and unreasonably dangerous immediately prior to striking him “in that the transmission would shift from neutral to reverse when the motor of said forklift was running and the forklift was left unattended.” He alleged he suffered severe and permanent injuries as a result of the accident and therefore contracted with defendant to act on his behalf for both a worker’s compensation claim and a product liability claim. Defendant’s conduct with regard to the worker’s compensation claim is not at issue in this case.

Plaintiff’s complaint alleged further that defendant undertook to represent him as his attorney in the personal injury suit and agreed “to investigate and process a product liability claim against the manufacturer or seller of the forklift” and therefore it was his duty to exercise ordinary care and caution in the legal representation of plaintiff. Plaintiff alleged that defendant breached his duty to plaintiff by carelessly and negligently: (a) failing to ascertain the identity of the forklift truck; (b) failing to retain a mechanical engineer or other expert to inspect the forklift; (c) failing to institute legal proceedings against the manufacturer or seller of the forklift; (d) failing to impound the forklift; (e) failing to properly investigate the circumstances of plaintiff’s injuries to determine the manufacturer of the forklift; and (f) failing to identify, preserve and inspect the forklift.

Plaintiff alleged that as a direct and proximate result of defendant’s action the forklift “was destroyed, sold or otherwise disposed of by Jay’s Foods, Inc.,” and it became “impossible to ascertain the make, manufacturer, seller or mechanical condition of the forklift that was involved in plaintiff’s injury.” Plaintiff alleged that but for defendant’s negligence, plaintiff would have had legal grounds for a cause of action against the manufacturer or seller of the forklift.

Defendant moved to dismiss the first amended complaint at law on July 9, 1987, contending that plaintiff could not succeed in the malpractice action because he did not plead and could not prove he would have prevailed in a product liability action “but for” the negligence of his attorney. On October 5, 1987, the trial judge granted defendant’s motion and dismissed the suit with prejudice. The court subsequently denied plaintiff’s motion to reconsider and plaintiff appealed.

On appeal plaintiff presents the following issues: (1) did plaintiff state a cause of action for legal malpractice where plaintiff charged defendant with negligently failing to ascertain the identity of the manufacturer of a defective product, which caused plaintiff’s injury, before the product was disposed of by its owner; (2) did plaintiff plead an underlying cause of action; and (3) is plaintiff required to plead the identity of defendant in the underlying cause of action and the specific defect in the forklift on which that action is based?

In any legal malpractice action, a plaintiff must plead the existence of a valid underlying cause of action. (Claire Associates v. Pontikes (1986), 151 Ill. App. 3d 116, 502 N.E.2d 1186.) Four elements must be alleged and proven: (1) the existence of an attorney-client relationship that establishes a duty on the part of the attorney; (2) a negligent act or omission that breached that duty; (3) proximate cause that establishes that but for the attorney’s negligence, plaintiff would not have suffered an injury; and (4) damages. Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96.

Because a plaintiff must establish that but for the attorney’s negligence he would have been successful in the underlying action, plaintiff is essentially required to prove a case within a case, specifically, establishing a prima facie product liability case and then proving it in order to prove the legal malpractice case. (Cook v. Gould (1982), 109 Ill. App. 3d 311, 314, 440 N.E.2d 448.) This is required because of the damages element of the action; no malpractice exists unless counsel’s negligence has resulted in the loss of an underlying action. Claire Associates, 151 Ill. App. 3d at 122.

Therefore, we must consider whether plaintiff’s legal malpractice complaint alleged the facts to establish he not only had a valid product liability cause of action, but that he would have been successful in that cause. To establish a prima facie case for strict liability in a product liability action, a plaintiff must show that: (1) his injuries or damages resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time it left the manufacturer’s control. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623, 210 N.E.2d 182, 188.

Plaintiff contends that his legal malpractice action properly stated a cause of action for product liability. Plaintiff argues that his legal malpractice complaint alleged he was injured by a forklift and that the forklift was defective and unreasonably dangerous as a result of a mechanical defect. The three other requisite factors alleged in plaintiff’s first amended complaint include plaintiff contracting with defendant to represent him, defendant’s failure to identify the manufacturer of the forklift and concludes that “but for” defendant’s action, plaintiff would have “obtained compensation from the manufacturer or seller.” On a motion to dismiss, the trial court must accept as true all well-pleaded facts. Bishop v. Ellsworth (1968), 91 Ill. App. 2d 386, 234 N.E.2d 49.

Plaintiff contends that these facts alone are enough to permit his legal malpractice action to go to trial. Plaintiff argues that he should not be required to identify the manufacturer of the forklift in his complaint because it was defendant’s negligence that prevented the manufacturer from being discovered. Plaintiff argues that to dismiss his complaint at the pleading stage would prevent him from conducting the proper discovery to see if the manufacturer could be established. The mere fact that the forklift has been or may have been destroyed is not a bar to a negligence action. Mote v. Montgomery Ward & Co. (1984), 125 Ill. App. 3d 839, 466 N.E.2d 593; Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 507 N.E.2d 1213.

Defendant concedes that plaintiffs complaint establishes that an attorney-client relationship existed and that defendant breached his duty to his client. But defendant contends plaintiffs complaint does not allege proximate cause, i.e., “but for” the negligence of the attorney plaintiff would have been successful in the underlying cause of action.

Defendant contends that plaintiff failed to meet the proximate cause requirement in three specific ways and that failure prevents plaintiff from succeeding in his legal malpractice case. First, plaintiff has alleged no facts to establish defendant could have identified the forklift involved in his accident. Second, plaintiff failed to plead facts that establish that “but for” the attorney’s conduct, he would have been successful in his product liability action. Third, plaintiff failed to allege facts to establish that a judgment against a manufacturer would have been collectible.

Initially, defendant contends that plaintiff alleges no facts that establish defendant could have identified the forklift which caused the injury even given the opportunity. The record establishes that before the dismissal of plaintiff’s action, plaintiff responded to interrogatories that he did not know the manufacturer of the forklift. He admits the same in his brief. Defendant poses the question, how was defendant to identify the forklift involved without plaintiff’s assistance? Plaintiff alleged that in his employment he was required to operate this forklift truck, that the truck was defective because of its design and that he was injured by the unattended truck. Because he operated the forklift in his employment, he was in the best position to identify the manufacturer and to give that information to his attorney. The complaint does not allege that this was done.

Next, defendant contends that even if we assume the attorney was negligent, plaintiff must still prove that defendant’s negligence was the proximate cause of his loss, i.e., had the attorney identified the forklift involved, the plaintiff would have prevailed in the product liability action. Cook v. Gould (1982), 109 Ill. App. 3d 311, 440 N.E.2d 448.

Plaintiff’s brief admits that plaintiff cannot now identify the manufacturer of the forklift. Defendant cites Dunavan v. Calandrino (1988), 167 Ill. App. 3d 952, 964-65, 522 N.E.2d 347, 354, which held that “[wjhere a legal malpractice case involves an underlying cause of action that never reached the trial stage because of alleged negligence on the part of plaintiff’s attorney, plaintiff must allege that he had a valid cause of action and must ultimately prove up his case at trial.” (Dunavan v. Calandrino, 167 Ill. App. 3d at 964-65.) Damages in a legal malpractice action will not be presumed, and the plaintiff bears the burden of proving that damages resulted. Zych v. Jones (1980), 84 Ill. App. 3d 647, 652, 406 N.E.2d 70.

Defendant contends that plaintiff’s malpractice complaint is devoid of specific details necessary to plead a product liability case. Defendant cites Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 1059-60, 473 N.E.2d 444, where the court held that it “cannot legally be presumed from evidence of the mere occurrence of an accident involving a product that the product was defective when it left the manufacturer’s control.” (Ralston v. Casanova, 129 Ill. App. 3d at 1060.) “While it may indeed be possible to introduce sufficient evidence to establish a prima facie case of strict liability even in the absence of the allegedly defective product itself *** plaintiff must present some evidence to raise a material issue as to the absence of abnormal use and the elimination of reasonable secondary causes to prove what condition the product was in when it left [the manufacturer’s] control.” (Emphasis in original.) Ralston, 129 Ill. App. 3d at 1059-60.

We note that the complaint does not allege how close defendant was to the forklift when he was injured, whether he or someone else was using the forklift immediately before the accident, the type or style of forklift, the forklift manufacturer or any alleged failures on the manufacturer’s part nor does he allege any prior difficulties with its operation. The record contains plaintiff’s answers to defendant’s interrogatories where plaintiff responds to questions about the identity of the forklift manufacturer, alterations or maintenance of the machine by anyone, and other injuries caused by the machine as “unknown at this time.” Though the accident occurred on September 6, 1983, plaintiff terminated defendant’s representation on June 5, 1985, and plaintiff’s malpractice action was filed on October 30, 1985, plaintiff conducted no discovery before the case was dismissed in 1989 that might have resulted in identifying the forklift manufacturer or providing more detail about the accident.

Finally, defendant contends that plaintiff has alleged no facts to establish that a judgment against a manufacturer would have been collectible. When a claim is alleged to have been lost by the attorney’s negligence, the plaintiff must plead and prove the existence of a solvent defendant in the underlying claim. Goldzier v. Poole (1898), 82 Ill. App. 469, 471; see also Kohler v. Woollen, Brown & Hawkins (1973), 15 Ill. App. 3d 455, 458, 304 N.E.2d 677.

Defendant contends that, without the element of collectibility, the plaintiff has not shown that he would have recovered for his injuries “but for” the attorney’s actions. We note that the plaintiff argued before the trial court:

“We have alleged that an attorney had a chance to — first of all, understood the duty to investigate the case, had a chance to inspect the forklift and did not do that. And as a result, the forklift was destroyed. *** We say that the forklift was defective and unreasonably dangerous. We say that we cannot ascertain the manufacturer or the mechanical condition. *** We don’t say we would have recovered from whom. We don’t know from whom we would have recovered because we don’t know who manufactured the forklift as a result of his inability to determine that.”

Plaintiff also argues here on appeal that he should be able to bring his legal malpractice action although he cannot identify against whom he would have filed suit in the underlying products liability action. Plaintiff argues that it is enough to plead that he was injured by a defective product and that someone is liable. Even though we may sympathize with the injured plaintiff, where his complaint fails to allege the necessary elements of a legal malpractice claim, he may not recover from his attorney the amount he would have hoped to realize in the underlying suit.

Illinois law is clear that, in a malpractice action, the plaintiff essentially must prove his case within the case. Plaintiff acknowledges this requirement on appeal. Plaintiff must show that but for his lawyer’s negligence he would have recovered. Plaintiff is unable to meet this burden of proof and readily admitted so before the trial court and again in his brief before this court. Plaintiff states in his brief: “The only element of a products liability case the plaintiff was unable to allege was the identity of the manufacturer *** the plaintiff here should *** be allowed to seek compensation for the loss of any chance he had to recover against the manufacturer, even though he may not be able to establish that he had a better than even possibility of recovery.” As defendant properly avers in his brief, our legal system does not permit liability based on conjecture.

For the foregoing reasons, we affirm the trial court’s granting of defendant’s motion to dismiss plaintiff’s action with prejudice.

Affirmed.

RAKOWSKI, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE RAKOWSKI

license: Public Domain

text:
    RICHARD ANDERSON, Plaintiff-Appellee, v. BURTON ASSOCIATES, LTD., Defendant-Appellant (Lawrence B. Irwin, Defendant).
    First District (6th Division)
    No. 1-90-2916
    Opinion filed August 2, 1991.

      Bischoff, Maurides & Swabowski, Ltd., of Chicago (Mark P. Bischoff, Thomas J. Swabowski, and Paul G. O’Toole, of counsel), for appellant.
    Levenfeld, Eisenberg, Janger, Glassberg, Samotny & Halper, of Chicago (James T. Rohlfing, of counsel), for appellee.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Defendant-appellant Burton Associates, Inc. (Burton), appeals from an order granting partial summary judgment to plaintiff-appellee Richard Anderson (Anderson) on count I of Anderson’s complaint. The judgment awarded Anderson full value for his stock in Burton, which was Anderson’s former employer, pursuant to a shareholders’ stock redemption agreement.

Burton is an Illinois professional corporation in the business of certified public accounting. Defendant Lawrence B. Irwin (Irwin), an accountant, was the owner of 120 of the 126 issued shares. Anderson, also an accountant, was the owner of the remaining six shares. On July 1, 1986, Anderson, Irwin and Burton entered into a shareholder’s agreement (Agreement). Anderson was also made a director and officer of Burton upon his purchase of the six shares. Anderson left the employ of Burton on either July 14, 1989, or in September of 1989, and shortly after this, joined another accounting firm.

In October of 1989, Anderson filed a two-count complaint against Burton and Irwin. Count I of the complaint alleged that pursuant to paragraph 8 of the Agreement, the parties agreed that shares held by any shareholder would be redeemed upon the shareholder’s voluntary termination from employment. The complaint alleged that Anderson terminated his employment with Burton pursuant to the terms of the Agreement, but that Burton and Irwin refused to redeem Anderson’s stock, which was valued at $49,235.29. Count II of the complaint was an action for recovery of wages, bonus, and profit sharing and is not at issue in this appeal.

Burton answered the complaint, admitting the existence of the Agreement between the parties, and admitted that it had not redeemed Anderson’s shares of stock, although Burton denied that this was in violation of the Agreement. Burton also pleaded two affirmative defenses, namely: (1) that Anderson breached his fiduciary duty to Burton by soliciting clients away from Burton; and (2) that Anderson breached his obligations under the Agreement of good faith and fair dealing (by soliciting clients).

In March of 1990, plaintiff brought a motion for partial summary judgment. Attached to the motion was the Agreement, the complaint and answer to the complaint, and certain correspondence between the parties. Although defendant responded to the motion, no evidentiary material was produced. In reply, plaintiff relied upon additional evi-dentiary material, to wit, a request to admit facts which was served upon Burton in January of 1990, and which Burton had not replied to. The request to admit, standing admitted, would establish, inter alia, that other than the alleged solicitation of clients, Burton had no other basis to refuse to redeem, that defendant refused to redeem, that none of Burton’s customers were contractually obligated to continue doing business with Burton, and that Anderson had performed his contractual obligations of the Agreement.

Burton was subsequently given permission to file an affidavit and a further memorandum. Defendant filed the affidavit of Irwin. In the affidavit, Irwin averred: that as a principal of Burton, Anderson had direct contact with clients, that Anderson would not have been given client contact, and would not have been able to develop relationships with clients, were it not for Anderson’s status as a shareholder and principal and that as a result of Anderson’s status, he was given access to a number of clients (a list of names was included). Paragraph 8 of Irwin’s affidavit stated “Richard Anderson used his contacts and relationship with the above clients to solicit them to use the accounting services of himself [and Anderson’s subsequent employer] and to cease using the services of Burton.”

Irwin further averred, upon information and belief, that prior to Anderson’s leaving Burton, Anderson solicited a number of Burton clients (listing the names of six Burton clients). Ad&fionally, after Anderson left Burton numerous other Burton clients left Burton for Anderson and Anderson’s subsequent employer. Irwin averred, again upon information and belief, that “these clients left as a result of solicitation by Richard Anderson.”

Irwin’s affidavit also related that a meeting between Irwin and Anderson took place on July 12, 1989, at which time the payment to Anderson for Anderson’s Burton stock was discussed. Irwin stated “[w]e discussed and agreed that Richard Anderson would receive a promissory note calling for payment over 60 months with interest at the rate provided in the shareholder agreement rather than a lump sum payment. To be deducted from that would be IV2 times the annual billings of any client that Richard Anderson took from Burton to his accounting firm. *** Richard Anderson also said that such a deduction would be unnecessary as he would not take any Burton clients.” Attached to the affidavit was a handwritten letter, which, according to Irwin, was the complete agreement of the parties. The letter referred to the promissory note, but was silent as to any V-k times annual billings of Burton clients. The letter stated that clients Anderson retained was an item “open for discussion.” In the affidavit, Irwin explained that this reference was to “the identity of any clients taken by Richard Anderson.”

An important aspect of this case is that an amended counterclaim has been filed, which alleges that Anderson breached his fiduciary duty to Burton by solicitation of clients both before and after his termination. Neither the amended counterclaim nor the affirmative defenses on file mention the meeting of July 12, 1989, that Irwin referred to in his affidavit, nor does either pleading refer to any of the alleged terms of any agreement reached at that meeting.

Judge Dean J. Sodaro entered summary judgment in favor of Anderson on the issue of defendants’ liability under the Agreement. Judge Thomas R Quinn entered final judgment and included language pursuant to Rule 304(a) (134 Ill. 2d R. 304(a)) on September 18, 1990.

The first issue we address is whether a genuine issue of material fact existed so as to preclude the granting of summary judgment in favor of Anderson.

Burton has argued that the trial judge applied the wrong standard in granting partial summary judgment. We find this not to be the case. The standards for the determination of whether a motion for summary judgment should be granted are clear. “In determining whether a genuine issue of material fact exists, the court must consider the pleadings, depositions, admissions, exhibits and affidavits on file and construe them strictly against the movant and in favor of the opponent.” (O’Hara v. Holy Cross Hospital (1990), 137 Ill. 2d 332, 343, 561 N.E.2d 18.) Summary judgment should be granted “only when the right of the moving party is clear and free from doubt.” Gatlin v. Ruder (1990), 137 Ill. 2d 284, 293, 560 N.E.2d 586.

Burton argues that the trial court erred in granting summary judgment, in that the trial court erroneously weighed the evidence and thus decided factual issues (see Gatlin, 137 Ill. 2d at 294). In so doing, Burton focuses on one comment of the trial judge, where the trial judge stated “[b]ut right now it is very iffy.” In fact, this comment appears to be taken out of context. The trial court made this statement in relationship to discussing the counterclaim of Burton as to Anderson’s alleged breach of fiduciary duties. Nothing in the record indicates that the trial court applied the wrong standard in considering Anderson’s motion for summary judgment.

Before proceeding to the merits of the case, a number of observations as to the somewhat curious posture of the briefing in the court below are in order. While plaintiff’s motion was brought as a motion for partial summary judgment, it would have more appropriately been brought as a motion for judgment on the pleadings. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615(e).) This is because the motion relied on only the complaint (and exhibits to the complaint such as the Agreement) and defendant’s answer to the complaint. As shall be discussed, these pleadings were all that were necessary to decide the issue. Burton, in responding to the motion, failed to offer any counter evidentiary material. Then, improperly (by way of reply and for the first time), Anderson offered new evidentiary material, in the form of the “unresponded” to (or rather tardily responded to) request to admit. The admissions added no new material evidence to the motion. The record reveals that the only apparent consequence of the new evi-dentiary material was to further muddy the record by providing Burton with an opportunity to file the supplemental response and introduce the Irwin affidavit.

Regardless of the manner of briefing below, neither party now disputes that the Irwin affidavit is part of the record and that we should consider it.

The affidavit’s description of the July 12, 1989, meeting, however, and the allusion to a subsequent agreement or modification of the shareholders’ agreement did not prevent the entry of summary judgment. For one, the affidavit is somewhat unclear as to whether Anderson actually agreed to reimburse Irwin or the corporation for the taking of clients. Further, the affidavit is inherently contradictory, in that Irwin initially alludes to an agreement that Anderson would reimburse him for any clients he should take to his subsequent employer. However, the letter, which Irwin states was the entire agreement between the parties, says nothing about such reimbursement. Finally, the alleged agreement of the July 12, 1989, meeting appears to contemplate, not prohibit, the solicitation of clients.

As Burton itself is the appellant, not Irwin, it is irrelevant as to whether Irwin was owed a fiduciary duty. Anderson, by virtue of being an employee and an officer of Burton, owed Burton a fiduciary duty, and clearly, pretermination solicitation of Burton clients would be a breach of this fiduciary duty. (See ABC Trans National Transport, Inc. v. Aeronautic Forwarders, Inc. (1978), 62 Ill. App. 3d 671, 683, 379 N.E.2d 1228; Dangeles v. Muhlenfeld (1990), 191 Ill. App. 3d 791, 548 N.E.2d 45.) We accept that the unobjected-to affidavit established pretermination solicitation in this case.

However, Anderson is correct to argue that the affirmative defenses are not proper ones. The shareholder’s agreement provides Anderson with the right to have his stock redeemed. Burton has not challenged the existence of sufficient consideration or argued that Anderson did not pay for his shares. Whether Anderson breached his fiduciary duty to the corporation by soliciting Burton clients would not defeat Anderson’s right to his money. Thus, no new matter is introduced to defeat Anderson’s claim, and the breach of fiduciary duty defense fails the test for a proper affirmative defense. (See Worner Agency, Inc. v. Doyle (1984), 121 Ill. App. 3d 219, 222, 459 N.E.2d 633.) Therefore, the breach of fiduciary duty, while the proper basis for a counterclaim (as remains between these parties below), is not an affirmative defense.

At argument on the motion for summary judgment, counsel for Burton contended that summary judgment should not be entered due to Anderson’s alleged breach of fiduciary duty. The trial judge asked if this meant Anderson forfeited his stock. Counsel for Burton responded “I am not saying that. We believe we are entitled to a set off.” At oral argument before this court, counsel for Burton argued that Anderson should not receive the value of his stock pursuant to the Agreement because the value of the Burton stock allegedly decreased as a result of the alleged solicitation. In support of this argument, our attention was called to the case of Hagshenas v. Gaylord (1990), 199 Ill. App. 3d 60, 557 N.E.2d 316. In that case, however, the trial court ordered the stockholder who breached his fiduciary duty to the corporation to turn his stock over to the corporation, after a trial on the merits. In fact, the appellate court in Hagshenas did not sanction such a remedy and reversed this action of the trial court. The trial court had ruled that the diminution in value of the corporation due to the breach of fiduciary duty was too speculative to form the basis of an award of damages. This ruling, the Hagshenas court held, was error. (Hagshenas, 199 Ill. App. 3d at 75-78.) In this case, too, Burton will have the opportunity to recover for any diminution in value due to the alleged solicitation upon the trial of the counterclaim.

Likewise, the second pleaded affirmative defense — violation of the implied covenant of good faith — was not a proper basis to deny summary judgment in this case due to the doctrine’s inapplicability to the case. While it is true that this obligation exists in every contract in Illinois (see Martindale v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 154 N.E.2d 683), it is essentially used as a construction aid in determining parties’ intent (Martin v. Federal Life Insurance Co. (1982), 109 Ill. App. 3d 596, 605, 440 N.E.2d 998), and “vague notions of fair dealing” do not form the basis for an independent tort. Foster Enterprises, Inc. v. Germania Federal Savings & Loan Association (1981), 97 Ill. App. 3d 22, 31, 421 N.E.2d 1375.

In the case of Dayan v. McDonald’s Corp. (1984), 125 Ill. App. 3d 972, 466 N.E.2d 958, the court discussed some of the different types of situations where the concepts of good faith and fair dealing have been implicated. These include the duty of a party to bring about a condition precedent or the discharging of an at-will employee due to improper motive. “Problems relating to good faith performance typically arise where one party to the contract is given broad discretion in performance. The dependant party must then rely on the party in control to exercise that discretion fairly.” Dayan, 125 Ill. App. 3d at 990.

The instant case does not deal with an exercise of discretion by Anderson, and the record reveals no action by Anderson which rendered Burton unable to perform. Nor does the shareholder’s agreement which Anderson seeks to recover under beg for interpretation. Furthermore, the alluded subsequent agreement or purported modification, which says nothing about Anderson no longer receiving stock redemption, appears to contemplate, not prohibit, the solicitation of Burton employees. Thus, the second pleaded affirmative defense, like the first, is legally improper.

In sum, we affirm the entry of summary judgment in favor of Anderson, given the entitlement of Anderson to have his shares redeemed under the shareholder’s agreement. As a final matter we note that, in this case, a wage claim remains pending between the parties. Moreover, the allegation of breach of fiduciary duty on the part of Anderson remains pending in the form of Burton’s counterclaim. Irwin averred that the value of the corporation has been diminished as a result of the alleged solicitation, and there is no evidence in the record to suggest otherwise. It is conceivable that Anderson’s liability to Burton may exceed what is due Anderson pursuant to the Agreement and wage claim. Under the circumstances and in fairness to Burton, we remand the case to the trial court with instructions to stay enforcement until final judgment in the underlying counterclaim.

Affirmed and remanded with instructions.

McNAMARA and EGAN, JJ., concur.


author: JUSTICE HARTMAN

text:
    EVA HAMILTON, on Behalf of Ricky Ceasar, a Minor, Petitioner-Appellee, v. RICKY CEASAR, Respondent-Appellant.
    First District (2nd Division)
    No. 1-90-2308
    Opinion filed August 6, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Stephen L. Richards, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Obyrietta Gammett Scott and Leonard N. Foster, Assistant State’s Attorneys, of counsel), for appel-lee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Respondent Ricky Ceasar’s (Ceasar’s) jury demand in the underlying paternity suit was stricken because he failed to pay the statutory jury fee. Leave to appeal from this interlocutory order was granted pursuant to Supreme Court Rule 308. (134 Ill. 2d R. 308.) The issue certified by the circuit court is:

“Whether a respondent in a parentage action, under the Illinois Parentage Act of 1984, as amended, who had been determined by the branch court judge to be indigent, within the meaning of the Act, and hence, appointment of the Public Defender to represent him because of his indigency [sic], may constitutionally be deprived of the statutorily created right to trial by jury, solely because he did not pay the necessary fee to obtain a jury trial.”

We hold that the jury fee requirement does not impinge upon any constitutional rights possessed by Ceasar and affirm.

Petitioner, Eva Hamilton, initiated this paternity suit under the Parentage Act of 1984 (III. Rev. Stat. 1987, ch. 40, par. 2501 et seq.) (Act) on January 1, 1988. The circuit court found Ceasar to be indigent, and the public defender was appointed as his attorney. Blood group tests were also performed upon the parties at no cost to Ceasar.

On the day set for trial, the circuit judge sua sponte struck Ceasar’s jury demand because the jury fee had not been paid. His motion to vacate that order was denied. The circuit judge, however, certified the aforementioned issue in compliance with Rule 808 (134 Ill. 2d R. 308), and this court granted the application for leave to appeal.

The issue presented in this appeal is similar to that decided by the Fourth District Appellate Court in People ex rel. Lockwood v. McDaniel (1989), 180 Ill. App. 3d 13, 536 N.E.2d 80 (McDaniel). In that paternity action it was held that the circuit court properly struck an indigent defendant’s jury request for failure to pay the jury fee. (McDaniel, 180 Ill. App. 3d at 17.) The circuit court in this case based its ruling upon McDaniel. On appeal, Ceasar claims that he was denied his rights to a jury trial, due process, and equal protection.

The Illinois Constitution of 1970 provides that “[t]he right of trial by jury as heretofore enjoyed shall remain inviolate.” (Ill. Const. 1970, art. I, §13.) This does not require a trial to be held before a jury in every case; nor are all restrictions on the exercise of that right precluded. (Hudson v. Leverenz (1956), 10 Ill. 2d 87, 91, 139 N.E.2d 255.) Determination of paternity was not recognized at common law; therefore, no constitutional right to trial by jury inheres in such an action. (See City of Monmouth v. Pollution Control Board (1974), 57 Ill. 2d 482, 485, 313 N.E.2d 161; Ehorn v. Podraza (1977), 51 Ill. App. 3d 816, 817, 367 N.E.2d 300.) Further, the sixth amendment of the United States Constitution does not require a jury trial absent potential imprisonment, as here. Frank v. United States (1969), 395 U.S. 147, 151, 23 L. Ed. 2d 162, 167, 89 S. Ct. 1503, 1506.

In Illinois, a fee must be paid to the clerk of the circuit court by the party demanding a jury trial “for the services of a jury in every civil action not quasi-criminal in its nature.” (Ill. Rev. Stat. 1987, ch. 25, par. 27.2(14)(b).) A paternity proceeding, although criminal in form, is a civil proceeding to determine the identity of the putative father and not to impose a penalty (People ex rel. Cizek v. Azzarello (1980), 81 Ill. App. 3d 1102, 1105, 401 N.E.2d 1177) (Azzarello), and is governed by the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 1 — 101 et seq.), unless otherwise required. Ill. Rev. Stat. 1987, ch. 40, par. 2513; People ex rel. Mathis v. Brown (1976), 44 Ill. App. 3d 783, 786, 358 N.E.2d 1160.

Relying upon Little v. Streater (1981), 452 U.S. 1, 68 L. Ed. 2d 627, 101 S. Ct. 2202 (Streater), a case not considered in McDaniel, Ceasar argues that the denial of a jury trial based on failure to pay the jury fee violates his right to due process under both the United States and Illinois Constitutions. In Streater, the indigent appellant was the subject of a paternity suit in Connecticut and moved the trial court to order blood group tests of the appellee-mother and her child. The court ordered the tests, but denied the request that they be furnished at the State’s expense, with the result that no tests were performed. After trial, that appellant was determined to be the child’s father, and he was ordered to pay child support directly to the State. (Streater, 452 U.S. at 3-4, 68 L. Ed. 2d at 631, 101 S. Ct. at 2204.) The Supreme Court characterized paternity proceedings brought under the Connecticut statutes as having “quasi-criminal” overtones. Further, an indigent defendant was at a distinct disadvantage due to the burden placed upon him by Connecticut law; the mother was enabled to establish a prima facie case by the constancy of her accusation, and the putative father then had the burden of coming forward with evidence other than his own testimony. Some of the most probative evidence that a defendant might offer to prove his innocence are results of blood group tests. It was a denial of due process, therefore, to require an indigent defendant to pay for the evidentiary blood group tests. Streater, 452 U.S. at 9-12, 68 L. Ed. 2d at 634-36, 101 S. Ct. at 2207-09.

The Illinois Act significantly differs from the Connecticut statutory scheme presented in Streater, in that an Illinois defendant need not appear at court proceedings or face arrest, post bond or face incarceration, or plead “guilty” or “not guilty” to the charge. One commentator indeed noted that “[t]he 1984 [Illinois] act significantly changes the old, rigid, quasi-criminal rights and procedures.” (Klages, The Illinois Parentage Act of 1984: The Continuing Shift Toward Civil Enforcement, 73 Ill. B.J. 564 (1985).) Further, Illinois law imposes upon a defendant no unusual evidentiary obstacles; it is the mother’s burden to establish paternity by a preponderance of the evidence. (Azzarello, 81 Ill. App. 3d at 1108.) Streater, therefore, lends little support to the case sub judice.

Jury fee statutes have been upheld against constitutional challenges in other circumstances. In quoting the supreme court of Minnesota, our supreme court said:

“ ‘We can see no valid objection to a reasonable fee of this kind. The constitution does not guarantee to the citizen the right to litigate without expense, but simply protects him from the imposition of such terms as unreasonably and injuriously interfere with his right to a remedy in the law or impede the due administration of justice ***.’ ” (Williams v. Gottschalk (1907), 231 Ill. 175, 179, 83 N.E. 141, quoting Adams v. Corriston (1862), 7 Minn. 456, 461.)

In Morrison Hotel & Restaurant Co. v. Kirsner (1910), 245 Ill. 431, 433, 92 N.E. 285, the supreme court held that the jury fee requirement did not impinge upon the right to a jury trial, observing:

“It is not a right to command the services of a jury without cost but is of the same nature as the right to have official services performed by public officers, and a requirement for the payment of a reasonable amount for jury fees, such as will necessarily be required in every jury trial, is not a denial or encroachment upon the right.”

See also Fried v. Danaher (1970), 46 Ill. 2d 475, 478-80, 263 N.E.2d 820; People ex rel. Flanagan v. McDonough (1962), 24 Ill. 2d 178, 180, 180 N.E.2d 486; Stephens v. Kasten (1943), 383 Ill. 127, 132-33, 48 N.E.2d 508; Annot., 68 A.L.R.4th 343 (1989).

Ceasar’s equal protection claim also fails. The purpose of the jury fee is to offset some of the costs of a jury trial, and it is required of every civil litigant who requests such a trial. A free jury trial in the context of paternity proceedings neither implicates a fundamental right, nor involves a statutory classification based on race, alienage, or national origin. (See United States v. Kras (1973), 409 U.S. 434, 446, 34 L. Ed. 2d 626, 636, 93 S. Ct. 631, 638.) Instead, a paternity suit is essentially an action to recover money damages for the support of the child. (Ehorn, 51 Ill. App. 3d at 817.) The statute, then, only must be rationally justified as serving a legitimate State interest. (Kras, 409 U.S. at 446, 34 L. Ed. 2d at 636, 93 S. Ct. at 638.) Unlike the litigants in Boddie v. Connecticut (1971), 401 U.S. 371, 380-82, 28 L. Ed. 2d 113, 120-21, 91 S. Ct. 780, 787-88, Ceasar here was not denied access to the courts by the imposition of fees; he was denied only a jury, and “[a] court is fully organized and competent for the transaction of business without the presence of a jury.” Hunt v. Rosenbaum Grain Corp. (1934), 355 Ill. 504, 511, 189 N.E. 907.

Other jurisdictions faced with this issue have held that the denial of a jury trial in a paternity suit based upon an indigent’s inability to pay the jury fee is not unconstitutional. (See Robertson v. Apuzzo (1976), 170 Conn. 367, 365 A.2d 824, cert. denied (1976), 429 U.S. 852, 50 L. Ed. 2d 126, 97 S. Ct. 142; People v. Marshall (1978), 82 Mich. App. 92, 266 N.W.2d 678; see also In re GP (Wyo. 1984), 679 P.2d 976, 986-88 (denial of jury trial for failure to pay jury fee in parental-termination proceeding did not violate due process).) Both Robertson and Marshall were relied upon by the Fourth District Appellate Court in McDaniel.

Ceasar nonetheless argues that the circuit court could have waived his fees pursuant to section 5 — 105 of the Code of Civil Procedure, which provides a poor person with “all the necessary processes, appearances and proceedings, as in other civil cases, without fees or charges.” (Ill. Rev. Stat. 1987, ch. 110, par. 5 — 105.) This provision does not state that no expenses shall be borne by the indigent party, but is intended simply to provide equal access to the courts, which Ceasar commands here. People v. Nicholls (1978), 71 Ill. 2d 166, 176, 374 N.E.2d 194; McDaniel, 180 Ill. App. 3d at 16.

The circuit court did not err in striking indigent Ceasar’s jury demand for lack of payment of the jury fee in the underlying paternity action. Accordingly, we affirm.

Affirmed.

SCARIANO, P.J., and DiVITO, J., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT C. NICHOLSON, Defendant-Appellant.
    First District (3rd Division)
    No. 1-87-1535
    Opinion filed August 7, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Denise R. Avant and Ronald Alwin, Assistant Public Defenders, of counsel), for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Inge Fryklund and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.

      Justice White participated in this opinion prior to his retirement.

   JUSTICE RIZZI

delivered the opinion of the court:

Following a jury trial, defendant Robert Nicholson was convicted of possession of a stolen motor vehicle and criminal trespass to vehicle. Defendant was subsequently sentenced to serve a term of six years’ imprisonment. On appeal defendant argues that (1) the trial court erred in ruling that he failed to establish a prima facie case of racial discrimination in the State’s exercise of its peremptory challenges; (2) the trial court erred when it refused to dismiss for cause jurors who were biased, thus forcing him to exercise his peremptory challenges to eliminate the jurors and to accept an unwanted juror; and (3) the possession of stolen motor vehicle statute violates the due process and proportionate penalties clauses of the Illinois Constitution. We remand for a Batson hearing.

During the jury selection process, the State exercised six peremptory challenges. Five of those challenges were used to exclude African-American venirepersons. One challenge was used to exclude a venireperson who had a Hispanic surname. After the State had exercised peremptory challenges to dismiss two African-American venire-persons, defendant, a black man, raised a Batson objection. In chambers, both the State and the court noted that the accepted panel of four jurors had a black female member. Although the judge did not require the State to explain its peremptory challenges, the assistant State’s Attorney stated that he dismissed one black juror because he was the same age as defendant and had no roots in the community. Defense counsel pointed out that a white male juror who was also in the same age group had been accepted by the State. The State further explained that the juror did not properly respond to the judge’s questions. Defense counsel argued that the potential juror responded that he was married with three children and on general assistance. The trial court denied the defendant’s motion stating, “I don’t see any systematic exclusion.”

After the State had exercised its fifth peremptory challenge, defendant raised another Batson objection. Defense counsel argued that the State had exercised all five of its peremptory challenges to strike blacks from the jury. Defense counsel noted that the State had dismissed an additional two black females and a black male. The court noted that there was no systematic exclusion because, at that point, there were two black jurors on the panel. The State responded that one of the excluded veniremen had a prior misdemeanor criminal conviction and cleaned his fingernails during the voir dire. The court reprimanded the State for failure to disclose information regarding a potential juror’s criminal history to the court and defense counsel, but denied defendant’s motion for a Batson hearing.

At trial, the following evidence was adduced. On August 29, 1986, at approximately 9 p.m., Annette Wilson parked her red 1985 Chevrolet Camero “Z28,” license plate number NETO 1, near El Tori-to’s restaurant in Lombard. When she exited the car, Ms. Wilson locked the door and took her car key with her. At approximately 12:15 a.m., when she returned to the location where she had parked her car, it was not there. According to Ms. Wilson, she never gave anyone permission to enter into or drive her car. She reported the theft of her automobile to the Lombard police department.

At approximately 5:55 p.m. on August 30, 1986, Chicago police officer Sam Ruffino was on patrol duty in the vicinity of Kostner and Courtland Streets in Chicago when he observed a red Z28 automobile with license plate number NETO 1 run a stop sign. Officer Ruffino pulled the car over, and both he and the driver, whom he later identified as defendant, exited their respective autos. Ruffino told the driver why he was stopped and requested a driver’s license. When the driver indicated that he did not have a license, Ruffino instructed him to follow him to the police station to post a cash bond.

When they arrived at the station, the police department computer was “down” so Ruffino was unable to run a license plate check on defendant’s vehicle. Defendant identified himself as Ben Joseph, and Ruffino issued two traffic citations in that name and released defendant on his own recognizance. On September 2, 1986, in an unrelated incident, Steven Pryor found two Chicago traffic tickets and a bond receipt issued to Ben Joseph inside his automobile. Pryor took the items to the Itasca police department. Itasca Detective Peter Anderson performed a computer check of the license plate number on the tickets which revealed that the automobile had been reported stolen. Anderson contacted Ruffino and arranged for him to view a photographic array. Ruffino identified defendant as the driver that he issued traffic citations to on August 30,1986.

On September 5, 1986, Schaumburg police officer Fess Cloonan observed a red Chevrolet Camero with license plate number NETO 1 parked in an awkward manner next to the Woodfield Mall Theater. After the car remained unmoved for two hours, Cloonan ran a computer check of the license plate number which revealed that the automobile was stolen. Cloonan’s inspection of the automobile revealed that the steering column was cracked and the car radio was missing.

On September 9, 1986, Schaumburg Detective Anderson and a fellow officer went to the Glendale Heights address listed on the traffic citations issued in the name of Ben Joseph. When they arrived, defendant was in the parking lot of the apartment complex. Anderson asked defendant if he knew the whereabouts of Ben Joseph, and defendant took him to an apartment in the building. The officers were admitted into the apartment by Ben Joseph who told them that he was in Detroit on the day that the tickets were issued and that he did not know anything about the incident.

On January 11, 1987, defendant was arrested by Chicago police officers. During a post-arrest interview, the officers told defendant that the victim’s car had been stolen and asked him about the tickets that were issued while he was driving the car. According to Officer Baumhardt, defendant replied, “Oh yes, I remember that car.” Baumhardt testified that defendant admitted he had taken the car but stated that it belonged to his girl friend and he was unable to return it. Defendant’s statement was not reduced to writing. After the jury found defendant guilty of possession of a stolen motor vehicle and criminal trespass to vehicle, the trial court sentenced him to serve six years in the Illinois Department of Corrections. This appeal followed.

Defendant first argues that the trial court erred in ruling that he had failed to establish a prima facie case of racial discrimination in the State’s use of its peremptory challenges. We agree.

The equal protection clause prohibits a prosecutor from using the State’s peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race. (Batson v. Kentucky (1986), 476 U.S. 79, 90, 90 L. Ed. 2d 69, 83, 106 S. Ct. 1712, 1719.) A criminal defendant may object to race-based exclusions of jurors through peremptory challenges whether or not the defendant and the excluded jurors share the same race. Powers v. Ohio (1991), 499 U.S. 400, _, 113 L. Ed. 2d 411, 419, 111 S. Ct. 1364, 1366.

In order to establish a prima facie case of racial discrimination in jury selection, defendant is entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits those who are of a mind to discriminate to discriminate. (Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1724.) Defendant must show that this fact and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude veniremen from the petit jury on account of their race. (Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1724.) The relevant circumstances the trial court may consider when determining whether there was discrimination include: a pattern of strikes against black jurors; the prosecutor’s questions and statements during voir dire examination and in exercising challenges; the disproportionate use of peremptory challenges against blacks; the level of black representation in the venire as compared to the jury; whether the excluded blacks were a heterogeneous group sharing race as their only common characteristic; and the race of the defendant, victim and witnesses. People v. Evans (1988), 125 Ill. 2d 50, 63-64, 530 N.E.2d 1360, 1365.

The presence of this combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination. (Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1724.) In deciding whether defendant has made the requisite showing, the trial court should consider all relevant circumstances. (Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1724.) In considering these circumstances, the trial court must be mindful that the exclusion of just one minority venireperson for racial reasons is unconstitutional and provides grounds for reversal. People v. Harris (1989), 129 Ill. 2d 123, 175, 544 N.E.2d 357, 380.

Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. The prosecutor may not rebut the case merely by denying that he had a discriminatory motive or affirming his good faith in making individual selections. (Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1724.) If these general assertions were accepted as rebutting a defendant’s prima facie case, compliance with the dictates of the equal protection clause would be a vain and illusory requirement. The prosecutor must, therefore, articulate a neutral explanation related to the particular case to be tried. The court will then have the duty to determine if the defendant has established purposeful discrimination.

The standard of review to be applied in determining whether the trial judge erred in ruling that defendant has failed to establish a prima facie case of purposeful prosecutorial discrimination against black venirepersons is whether the ruling is against the manifest weight of the evidence. People v. Henderson (1990), 142 Ill. 2d 258, 287, 568 N.E.2d 1234, 1248.

In the present case, the court conducted the voir dire in the following manner. The judge questioned the venirepersons generally, asking whether they knew any of the lawyers or the defendant in the present case or if they were familiar with the facts of the case. After eliminating from the venire everyone who was currently involved in a lawsuit, or had been convicted of a crime, the court proceeded to call venirepersons in groups of four. After the four venirepersons were seated in the jury box, the court questioned them individually. The court asked each person the same basic questions using the juror identification cards and some of the questions proposed by the defense. The court generally asked the venirepersons where they worked, their marital status, and their children’s ages and occupations, if relevant. The judge also asked if they had any friends or relatives who were lawyers, judges or doctors and if they or their family or friends had ever been the victim of a crime. The judge discussed the burden of proof in a criminal case, and asked each juror if he or she could give both sides a fair trial. If the jurors indicated that they knew lawyers, judges, or doctors, or that they or their family or friends had been a crime victim, the court would inquire further to elicit additional detail.

After the court had questioned four potential jurors, it tendered the panel to the State for acceptance. If the State exercised one or more challenges, the court would have additional venirepersons called and proceed to question each person. After the questioning was complete, the court would again tender the panel of four potential jurors to the State for acceptance. Once the State accepted a complete panel of four jurors, the court would tender the panel to the defense for acceptance. When the defense finally accepted four jurors using the same method, the court would swear in the panel of four, dismiss them and call in a new panel of four potential jurors. The attorneys’ statements in the presence of the venire were limited to their excusal of a juror, acceptance of a panel or request for a sidebar.

During the jury selection process the State exercised its peremptory challenges to dismiss the following African-American jurors:

(1) Lavenia McCardy, a female, married with three children ages 32, 29 and 28. Ms. McCardy was employed as a social technician and her husband worked as a forklift operator. Her three children were employed as a post office employee, a secretary and a welder. Ms. Mc-Cardy did not know anyone who was a lawyer, doctor or policeman. Neither she nor any of her close family members or friends had been the victim of a crime.

(2) Otis Conner, a male, married with three children. Mr. Conner was unemployed and a general assistance recipient. He had no close family members or friends who were lawyers, doctors or judges. Neither he nor any of his close friends or family members had been victims of crime. He stated that he could give both sides a fair and impartial trial.

(3) Diana Buckner, a female, single, employed as a teacher of retarded children. Ms. Buckner had never served on a jury, and none of her close friends or family members had been victims of crime. She knew someone who was a real estate attorney.

(4) Earl Young, a male, was employed as a school teacher. He was a widower and had never served on a jury before. Two of his automobiles had been broken into, but he felt that he could give both sides a fair trial.

(5) Mary Alice McKinney, a female, Continental Baking employee and mother of one. She did not know any lawyers, doctors or judges and neither she nor any of her family members or friends had been the victim of a crime. She was previously called for civil jury service, but excused. She stated that she could give both sides a fair trial.

The jury was composed of the following people:

Panel One

(1) Robert Brixner, a white male, employed as a teacher and married to a teacher. He and his wife did not have children. Mr. Brixner did not know any lawyers, doctors or judges and neither he nor his family or friends had been the victim of a crime.

(2) Aldine Davis, a black female, post office employee, married to a post office employee. Ms. Davis was the mother of two adult children, one employed as a computer engineer and the other a City of Chicago employee. She had never served on a jury and neither she nor her family had ever been the victim of a crime.

(3) William Caldaliario, a white male, employed as an electric assembler, married to a bank financial counselor. Parent to three school-age children. Prior jury service in a criminal case. He indicated that he was satisfied with the trial process and that he could give both sides a fair trial. Mr. Caldaliario’s father was robbed at gunpoint during the 1970’s.

(4) Thomas Cheatam, a white male, employed as a set-up operator for Dual-Fast. Mr. Cheatam was married, with two kids. His wife is employed with Northrup. Mr. Cheatam had one child in school and the other worked for Little Caesars. Called for jury service on a prior occasion, but excused. No lawyers, judges or doctors as friends or family. No family or friends had been a victim of a crime.

Panel Two

(5) Ernesto Delos Reyes, a white male, employed in a hospital chemistry lab. His wife is employed as a hospital dietician. Mr. Reyes is a parent and was called for jury service on a previous occasion, but excused. He did not know any lawyers or judges. Mr. Reyes had never been the victim of a crime. His father was shot 15 years ago in the Philippines. The offender was never apprehended. He stated he could give both sides a fair trial.

(6) Dale Daniels, a white male, accountant for Continental Materials. His wife is a homemaker with two children. No lawyers, doctors or judges as family or friends. Neither family nor friends had ever been the victim of a crime.

(7) Lenor Miller, a white female, retired, widow. Her husband died of heart failure. They did not have any children. Neither she nor family or friends had ever been the victim of a crime. She stated that she could give both sides a fair trial.

(8) Allan Berglund, a white male, employed as a process engineer. Married with one infant child, his wife is a homemaker. No prior jury service, no friends or family who are judges, lawyers or doctors. Never been a victim of crime and willing to give both sides a fair trial.

Panel Three

(9) Grace Tillman, female, race unknown, single, public aid caseworker. Called for jury duty on prior occasion, but excused. Both a family member and a friend are Chicago police department detectives. She stated that she would not give more weight to a policeman’s testimony. Ms. Tillman had her car stolen some time ago; no one was apprehended. Her sister’s apartment was burglarized recently. She stated that she could give both sides a fair trial.

(10) Adlorga Cabarubio, white male, engineering technician. Married to an accountant, parent of two school-age children. No prior jury service, no friends or family who are lawyers, judges or doctors. He stated that he could give both sides a fair trial.

(11) Jackson Link, male, race unknown, employed in a hospital supply department. His wife and son are both employed at the same hospital. His wife works as a nurse; his son works in the engineering department. Mr. Link’s daughter is a typist. He has served on a grand jury and was called for criminal petit jury service, but not selected. Neither he nor his family had ever been the victim of a crime. He stated that he would give both sides a fair trial.

At this point in the jury selection process, defense counsel requested a sidebar. Thereafter, the parties agreed in chambers that two African-American venirepersons had been accepted by the State. The first black juror was Aldine Davis. The identity of the second black juror is not clear from the record although it is apparent from the in-chambers conversation of the judge, State’s Attorney and defense counsel that the second black juror was a member of the third panel and, therefore, by a process of elimination, either Grace Tillman or Jackson Link.

(12) Bessie Chambers, female, race unknown. Illinois Bell employee, single, prior civil jury service, case was settled prior to trial. She knows a lawyer who recently passed the bar examination and is working in Springfield. Her brother was killed when she was a child. She stated that she would give both sides a fair trial.

Alternates

(13) Donna Lindsey, female, race unknown, mental health technician, married to a truck driver. Mother of four, two of her children are in college. She never served on a jury and none of her close friends or family members are lawyers, doctors or judges. In addition, neither she nor any of her family and friends had ever been a crime victim.

(14) Lloyd Bingham, male, race unknown, single, custodial worker for the Chicago Board of Education. A close friend was a police officer, but he would not give more weight to a police officer’s testimony. Neither he nor his family or friends had ever been the victim of a crime. He would give both sides a fair trial.

The first issue on appeal is whether the trial court abused its discretion in finding that the defendant failed to establish a prima facie case of racial discrimination in the State’s use of its peremptory challenges. We will review the trial court’s decision by examining the weight of the evidence on each of the relevant circumstances which may be used to establish a prima facie case of racial discrimination in the use of peremptory challenges.

Under Batson, one of the relevant circumstances which the trial court may consider is a pattern of strikes against black potential jurors. In the present case, the State exercised six peremptory challenges. Five of those challenges were used to exclude blacks from the jury. We find that the State’s use of five of six peremptory challenges to exclude African-Americans from the venire constitutes a pattern of strikes against blacks. See People v. Lockhart (1990), 201 Ill. App. 3d 700, 710, 558 N.E.2d 1345, 1351.

Two other factors which the trial court may consider are the disproportionate use of peremptory challenges against blacks and the level of black representation in the venire as compared to the jury. A review of the record and briefs in this case does not reveal the total number of blacks in the venire. However, the record does reveal that, exclusive of the jurors who were excused for cause by the court, 27 potential jurors were considered by the State and defendant. Of these 27 venirepersons, 13 were excused through the use of peremptory challenges. Defendant exercised seven peremptory challenges. The record does not reveal whether any of those seven challenges were used to excuse black venirepersons. However, the in-chambers conversations of the parties following defendant’s two Batson objections, and especially the discussion held after the second objection, indicate that defendant did not exclude any black jurors.

Based on this circumstantial evidence, we conclude that 7 of the 27 potential jurors considered by the State and defendant were black. Of these seven potential black jurors, five were peremptorily challenged by the State. The remaining two black venirepersons became members of the jury. Therefore, African-Americans constituted 26% of the venire considered by both the State and defendant. In contrast, black jurors comprised 14% of the final jury of 14, which had two black members, including alternates. The State exercised one peremptory challenge against a potential juror who had a Hispanic surname. Assuming arguendo that Hispanic persons are considered white for Batson purposes (prior to the Supreme Court decision in Powers v. Ohio (1991), 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (which held that a defendant may object to race-based exclusions of jurors whether or not the defendant and excluded jurors share the same race)), the State exercised only one peremptory challenge to the pool of 20 white potential jurors. Based on this data, we conclude that the State exercised a disproportionate number of peremptory challenges against black as compared with white potential jurors. In addition, we find that the State’s disproportionate use of challenges against black venirepersons contributed to the resultant low level of black representation on the jury.

Another factor which the court may consider in assessing whether or not defendant has established a prima facie case of racial discrimination in the selection of jurors is whether the excluded blacks were a heterogeneous or dissimilar group of people with varied backgrounds sharing race as their only common characteristic.

Here, the record reveals that the black prospective jurors excused by the State were indeed a heterogeneous group. Two of the black potential jurors were married, two were single and one was a widower. Three of the potential jurors were parents, two were not. Four of the potential jurors were employed. Their various occupations were social technician, special education teacher, general public school teacher and baking company employee. One juror was unemployed. Four of the jurors had never served on a jury before. One potential juror had been called for service, but not selected. Four of the jurors stated that neither they nor any friends or family members had ever been the victim of a crime. One potential juror indicated that he had been the victim of two automobile burglaries, but indicated that it would not affect his consideration of the case. Four of the potential jurors did not know any lawyers, doctors or judges. One juror stated that she knew a real estate attorney.

In contrast, among the white empaneled jury members there was a teacher, an electrical assembler, and a retired widow. In addition, two of the white jurors were single, four of the jurors or their friends or family members had been a crime victim, one had prior criminal jury service, and four of the selected white jurors had been called for prior jury service, but excused.

In sum, the potential black jurors excluded by the State were a heterogeneous group -with their only common characteristic being their race. In addition, they shared common characteristics with several of the selected white jurors. The selection of white and the exclusion of black jurors who share common characteristics raises the inference that the black jurors were excluded on the basis of their race alone.

Some final factors to be considered are the prosecutor’s remarks during voir dire and the race of the defendant, victim and witnesses. Here, the trial court conducted the voir dire so the prosecutor’s limited remarks are not relevant. However, the record reveals that defendant is black, while according to defendant the victim and witnesses are white. The State disputes defendant’s contention that the victim and witnesses are white; that issue should be resolved upon remand. The State also argues that the race of jurors Bessie Chambers, Donna Lindsey and Lloyd Bingham is unknown. While a prima facie case of racial discrimination in the State’s use of its peremptory challenges can be inferred from the other factors considered, the race of these three jurors is relevant and should be ascertained with further certainty upon remand.

The centrality of the jury system to our democratic form of government warrants vigilant and sensitive trial court supervision of the selection and empaneling of the petit jury. The prosecution can no longer be allowed to provide pretextual, nonsensical and irrelevant reasons in support of their exercise of peremptory challenges to exclude minority venirepersons. The trial court must evaluate the State’s responses in light of the day-to-day realities of practice in the criminal courts of Illinois. The trial court should also consider the backgrounds of white jurors selected by the prosecution and be wary of the use of peremptory challenges to exclude blacks who share common characteristics with accepted white jurors. Racial discrimination in the selection of jurors offends the dignity of persons and the integrity of the courts. Powers v. Ohio (1991), 499 U.S. 400, _, 113 L. Ed. 2d 411, 419, 111 S. Ct. 1364, 1366.

Considering these factors in light of the facts of this case, we conclude that the trial court’s finding that defendant failed to establish a prima facie case of racial discrimination in the State’s use of peremptory challenges is against the manifest weight of the evidence. Accordingly, this matter is remanded to the trial court for a Batson hearing.

Defendant next argues that the trial court erred when it refused to dismiss for cause jurors who were biased, thus forcing him to exercise his peremptory challenges to eliminate the jurors and to accept an unwanted juror. We disagree.

The trial judge is granted broad discretion in conducting and managing voir dire. (People v. Edwards (1988), 167 Ill. App. 3d 324, 328, 521 N.E.2d 185, 188; 107 Ill. 2d R. 234.) The determination of whether a prospective juror possesses the state of mind which will enable him or her to give the accused a fair and impartial trial rests within the sound discretion of the trial court. (People v. Britz (1989), 185 Ill. App. 3d 191, 200-01, 541 N.E.2d 505, 511.) The trial court’s determination of whether prospective jurors can give the accused a fair trial should not be set aside unless that determination was contrary to the manifest weight of the evidence. (People v. Johnson (1987), 162 Ill. App. 3d 952, 953, 516 N.E.2d 343, 344.) In addition, a conviction will not be reversed unless the trial court’s abuse of discretion has denied defendant his right to an impartial hearing. Johnson, 162 Ill. App. 3d at 953.

Defendant contends that two jurors whom he excluded through the use of peremptory challenges should have been dismissed for cause. The first potential juror was Edward Dziubek. Defendant argues that Dziubek should have been dismissed for cause because his son worked for the child support division of the State’s Attorney’s office and two of his nephews were police officers. However, the record reveals that this juror’s son’s employment was not related to the prosecution of the present case. In addition, in response to the court’s questioning, Dziubek indicated that he could be unbiased. The court’s voir dire of Dziubek did not indicate that he was unable to be a fair and impartial juror in this case.

The second potential juror was Huey Nakamura. Defendant argues that Mr. Nakamura should have been dismissed for cause because he stated that he had been the victim of a car theft and, as a result, his automobile insurance premiums were expensive. However, the record reveals that when the trial court asked Nakamura if he could assess the trial testimony and determine its truth, he responded, “I will try, yes.” Contrary to defendant’s contentions, Mr. Nakamura’s voir dire testimony did not demonstrate that he was unable to be a fair and impartial juror in this case.

Defendant argues that he suffered prejudice because his use of peremptory challenges to excuse Dziubek and Nakamura precluded him from excluding Jackson Link who sat on the final jury. Defendant argues that Link should have also been excused for cause because his prior service as a grand jury member and as a criminal jury member gave him a one-sided view of the criminal justice system. Defendant concedes that his assessment of Link’s impartiality is merely speculative. However, mere speculation alone is insufficient to demonstrate a juror’s bias. Because defendant cannot demonstrate either that Link was a biased juror or that he was prejudiced by his presence on the jury, we conclude that the trial court did not err in denying his motion to dismiss venirepersons Dziubek and Nakamura for cause.

Finally, defendant argues that the possession of stolen motor vehicle statute violates the due process and proportionate penalties clauses of the Illinois Constitution. We disagree.

In People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221, the supreme court held that section 4 — 103 of the Illinois Vehicle Code does not violate the due process and proportionate penalties clauses of the Illinois Constitution. (Ill. Rev. Stat. 1985, ch. Q&k, par. 4 — 103.)

The court found that section 4 — 103 applies to all persons, including organized motor vehicle thieves. The supreme court therefore concluded that the appellate court in Bryant erred in determining that possessors of stolen motor vehicles are punished more severely than organized motor vehicle thieves. The court reached this conclusion because all persons who possess a stolen motor vehicle, including organized motor vehicle thieves, are punishable under section 4 — 103(b) of the Code. (Bryant, 128 Ill. 2d at 456.) The court also concluded that the steady increase in the penalty provision for possession of a stolen motor vehicle was indicative of the legislature’s intent to make possession of a stolen motor vehicle a separate, more serious offense than theft, rather than a lesser included offense of theft. (Bryant, 128 Ill. 2d at 457.) Since the supreme court has upheld the constitutionality of section 4 — 103 of the Illinois Vehicle Code, we reject defendant’s argument.

For all of the foregoing reasons, this matter is remanded to the circuit court for a Batson hearing. Because we find that defendant has established a prima facie case of racial discrimination in the State’s use of peremptory challenges, upon remand, the State must come forward with neutral explanations sufficient to rebut defendant’s prima facie case. If the State fails to come forward with neutral explanations, the defendant’s conviction is vacated and defendant is to receive a new trial. If, however, the State presents what is determined by the trial court to be neutral explanations sufficient to rebut defendant’s prima facie case of racial discrimination, the defendant’s conviction is affirmed.

Remanded with directions.

CERDA, P.J., and WHITE, J., concur.