author: JUSTICE STOUDER

text:
    ROBERT SPROWLS, Indiv. and d/b/a Sprowls Oil Company, Plaintiff-Appellant, v. FIRST STATE BANK OF PRINCETON, Defendant-Appellee.
    Third District
    No. 3-90-0143
    Opinion filed October 5, 1990.
    Rehearing denied November 14, 1990.
    Linn C. Goldsmith, of Boyle, Goldsmith, Shore & Bolin, of Hennepin (Roger C. Bolin, of counsel), for appellant.
    Vonachen, Lawless, Trager & Slevin, of Peoria (Stephen A. Kouri, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

This lawsuit arises out of a contract to supply fuel and oil products between the plaintiff, Robert Sprowls, as supplier, and Clarence and Randall Coomer, as buyers. Sprowls brought a five-count complaint against the defendant, First State Bank of Princeton, Illinois. The specific counts and their respective theories alleged were as follows:

Count I — Breach of contract implied in law.
Count II — Breach of contract implied in fact.
Count III — Breach of express, oral contract.
Count IV — Equitable estoppel.
Count V — Third-party beneficiary.

The bank filed a motion to dismiss. The trial court dismissed counts I and II. Counts III, IV, and V were repleaded in an amended complaint. The bank, thereafter, filed a motion for summary judgment as to the remaining counts. The trial court granted the bank’s summary judgment motion. Sprowls appeals.

Sprowls operates a fuel and petroleum distributorship in Bureau County. Coomer was one of Sprowls’ farm customers and kept an account at the bank.

In early 1986, Sprowls heard rumors to the effect that Coomer was in financial trouble and that the bank was in charge of his financial affairs. The rumors proved to be accurate. The bank cleared all deposits and withdrawals from the Coomer account, and Coomer’s debt payments, living expenses, and operating costs were paid for only after receiving the bank’s approval. Coomer advised Sprowls of this arrangement he had with the bank.

Sprowls contacted the bank in March 1986 to confirm that the bank was in charge of Coomer’s account and to determine whether he would be paid for delivering fuel that year. Sprowls spoke with James Tolan, the bank’s vice-president in charge of loans, who was the officer in charge of the Coomer account. Sprowls informed Tolan that he was Coomer’s fuel supplier and that he had heard that Coomer was in financial trouble. Tolan told Sprowls that the bank was handling Coomer’s account and assured him that there would be no problem with payment of the fuel bill.

In July 1986, Sprowls spoke with Tolan again. Tolan advised Sprowls that as soon as the money became available the fuel bill would be paid. Sprowls again spoke with Tolan in August 1986, just prior to the harvest. Sprowls was again assured that there would be no problem with payment and that Coomer’s crops looked good, and that Sprowls would be paid out of the proceeds generated by the crop. Sprowls continued to supply fuel and by year’s end generated an account exceeding $17,000.

In late December 1986, Coomer delivered a check to Sprowls in payment of the account balance. Coomer told Sprowls that the check could be cashed as soon as he received certain corn proceeds. On January 8, 1987, Coomer told Sprowls to cash the check. That day, Sprowls attempted to cash the check but was told that the bank could not cash it without the approval of an officer and that none was available at that time. At this time, it should be noted that Coomer deposited approximately $220,000 into his account from his crop proceeds.

The next day, Sprowls called Mel Heckman, a bank officer, regarding the check. Heckman advised Sprowls that there was no money in Coomer’s account and that Coomer would be out of business. The check was dishonored because the amount of money Coomer deposited had been credited to Coomer’s obligation to the bank. Subsequently, Sprowls continued to pursue payment from Coomer by filing suit against him in Sprowls v. Coomer in Bureau County Case No. 87—L—13. The bank was not joined in that suit as a party defendant.

As anticipated, Coomer filed for bankruptcy in 1987. Coomer’s bankruptcy proceeding is still pending. After Coomer filed for bankruptcy, the instant suit was filed.

Sprowls first contends that the trial court erred in dismissing counts I and II of his original complaint. Specifically, he asserts that the original complaint adequately stated causes of action for breach of contract implied in law or unjust enrichment and for breach of contract implied in fact.

Sprowls’ complaint alleged that he periodically delivered fuel to Coomer with the bank’s knowledge, that the bank had control over Coomer’s account, that the deliveries of fuel enabled Coomer to produce a crop, that the bank received all or substantially all of the income from the farm operation that year, and that the bank derived a benefit from Sprowls that would be unjust to retain without payment. Sprowls further contends that the bank led him to believe that he would be paid out of the proceeds from the crops.

A motion to dismiss should be granted only if it clearly appears that no set of facts can be proved permitting the plaintiff the recovery he seeks. (J.J. Harrington & Co. v. Timmerman (1977), 50 Ill. App. 3d 404, 365 N.E.2d 721.) An implied contract is created by law as a result of the parties’ acts. (Bull v. Mitchell (1983), 114 Ill. App. 3d 177, 448 N.E.2d 1016.) The essence of a cause of action for a contract implied in law is the defendant’s failure to make equitable payment for a benefit which it voluntarily accepted from the plaintiff. (Elliot v. Villa Park Trust & Savings Bank (1978), 63 Ill. App. 3d 714, 380 N.E.2d 507.) The action is predicated on the fundamental principle that no one should unjustly enrich himself at another’s expense. First National Bank v. Glenn (1971), 132 Ill App. 2d 322, 270 N.E.2d 493.

In the instant case, Sprowls alleges that by reason of its control over Coomer’s farming operation, the bank manifested an intention and expectation that Sprowls would be paid from farm revenues. When taking the facts alleged in Sprowls’ complaint as true, Sprowls could recover under the theory he advanced in counts I and II. The bank argues that Sprowls’ failure to allege a written agreement between the parties is a proper basis for the trial court’s rulings on both the motion to dismiss and the motion for summary judgment. However, the two counts alleging the breach of an implied contract do not require the existence of an express contract. It therefore follows that the absence of a written contract is not fatal to counts I and II based on implied contract.

At the pleading stage, a plaintiff may allege in one count that an implied contract was established while in another count allege the breach of an express contract. (See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 613(b).) The plaintiff, once the evidence has been established, has the option of electing whether to proceed under an implied contract theory or an express contract theory. We conclude, therefore, that the trial court erred in dismissing counts I and II.

In the instant case, the trial court granted the bank’s motion for summary judgment as to counts III, IY, and V because they are essentially indemnity agreements and are unenforceable under the Statute of Frauds (Ill. Rev. Stat. 1985, ch. 59, par. 1 et seq.). We agree with the trial court’s reasoning, and Sprowls has cited no authority to the contrary.

For the reasons stated, the judgment of the circuit court of Bureau County is affirmed as to counts III, IV, and V of the complaint, reversed as to counts I and II of the complaint, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

HEIPLE, P.J., and BARRY, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE ex rel. JIM EDGAR, Secretary of State, Plaintiff-Appellant, v. FRANK E. TOPPING, Defendant-Appellee.
    Third District
    No. 3 — 90—0197
    Opinion filed October 12, 1990.
    Neil F. Hartigan, Attorney General, of Springfield (Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The Secretary of State appeals from an order of the trial court directing the Secretary to issue a judicial driving permit (JDP) (Ill. Rev. Stat. 1989, ch. 95V2, par. 6 — 206.1) to the defendant, Frank E. Topping. We reverse.

Initially, we note that the defendant has not submitted an appellee’s brief. Nevertheless, when the record is simple and the court of review can easily decide the disputed errors without an appellee’s brief, the reviewing court may decide the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The record shows that the defendant was arrested on April 20, 1985, for driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1983, ch. 95V2, par. 11 — 501(a)(2)). On July 17, 1985, the trial court convicted him of DUI and placed him on court supervision. As a result of his April 20, 1985, DUI arrest and his subsequent refusal to submit to chemical testing to determine his blood-alcohol concentration, he was required to serve an implied consent suspension of his driving privileges from August 6, 1985, through February 6, 1986. (Ill. Rev. Stat. 1983, ch. 95V2, pars. 6-206(a)17, 11-501.1.) On November 15, 1989, the defendant was again arrested for a DUI violation and again refused to submit to chemical testing. As a result, his license was summarily suspended for two years. Ill. Rev. Stat. 1989, ch. 95V2, pars. 11-501.1, 6-208.1(a)(3).

On January 8, 1990, the defendant pled guilty to DUI and was sentenced to serve 12 months’ probation and pay a $300 fine. On that same day, the trial court ordered the Secretary to issue the defendant a judicial driving permit. On January 19, 1990, the Secretary asked the court to reconsider its ruling, informing the court that the defendant was not a “first offender” as defined in section 11 — 500 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 500) and therefore he was ineligible for a JDP. The court subsequently denied the Secretary’s request and reentered its finding that the defendant was eligible for a JDP. In so doing, it stated that the defendant had not had a prior conviction or a court-assigned supervision for a DUI offense within the last five years and that the charges leading to his prior statutory summary suspension had been dismissed.

On appeal, the State argues that the trial court erred in concluding that the defendant was a first offender.

Section 11 — 500 of the Code defines a “first offender” in relevant part as “any person who has not had a previous conviction or court assigned supervision for violating Section 11 — 501, *** or any person who has not had a driver’s license suspension for Section 11— 501.1 within 5 years prior to the date of the current offense, except in cases where the driver submitted to chemical testing *** and was subsequently found not guilty of violating Section 11 — 501.” (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 500.) Where the intention of the legislature is clearly expressed, the plain meaning of the statute should be given effect. Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12.

Section 11 — 500 plainly provides that a driver is not a first offender for JDP purposes if within the last five years he has had a DUI-related conviction, court-assigned supervision, or license suspension. (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 500.) In the instant case, the record shows that the defendant was placed on court supervision for a DUI conviction on July 17, 1985, and was again arrested for a DUI violation on November 15, 1989. His second DUI arrest occurred within five years of his receiving court-assigned supervision. He therefore was not a first offender as defined in section 11 — 500. (See People ex rel. Edgar v. Pence (1989), 191 Ill. App. 3d 96, 546 N.E.2d 1182.) We further note that the defendant was not a first offender for the additional reason that he had received a license suspension within five years of his November 15,1985, DUI violation.

Although it is not entirely clear from the record, it appears that the trial court granted the JDP believing that the exception contained in section 11 — 500 was applicable because the defendant’s 1985 DUI charge was later dismissed. For the exception to apply, the statute requires both that the defendant submit to chemical testing and that he be found not guilty. Here, the exception is inapplicable for two reasons. First, the defendant was actually found guilty of the 1985 DUI charge and placed on court supervision. The case was dismissed only after the defendant successfully met the conditions of his court-assigned supervision. Second, the defendant’s driving abstract indicates that he refused to submit to chemical testing when arrested for the 1985 DUI. We therefore conclude that the trial court erred in finding that the defendant was a first offender for JDP purposes.

The judgment of the circuit court of Rock Island County is reversed.

Reversed.

HEIPLE, P.J., and BARRY, J., concur.


text:
    LIMA LAKE DRAINAGE DISTRICT OF ADAMS COUNTY, Plaintiff-Appellant, v. HUNT DRAINAGE DISTRICT OF HANCOCK COUNTY, Defendant-Appellee.
    Third District
    No. 3 — 90—0140
    Opinion filed October 12, 1990.

      Lewis, Blickhan, Longlett & Timmerwilke, of Quincy (George J. Lewis, of counsel), for appellant.
    Capps, Ancelet & Stoverink, of Carthage (David F. Stoverink, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, Lima Lake Drainage District of Adams County, filed suit against the defendant, Hunt Drainage District of Hancock County, for breach of contract. The plaintiff alleged, inter alia, that the defendant had failed to remove the internal waters from a 692-' acre area of land within the defendant district and had allowed water therefrom to flow into the plaintiff district. The defendant filed a counterclaim for damages on behalf of certain landowners within its district, alleging that the plaintiff had failed to drain water from certain land within the defendant district as required by an agreement between the parties. Following a bench trial, the court ruled that the contract between the parties had not been breached. The court further ruled that the plaintiffs claim was barred by the applicable 10-year statute of limitations. Thereafter, the court denied the plaintiff’s motion to reconsider. The plaintiff appeals.

The record reveals that the parties are public levee and drainage districts. The defendant district consists of approximately 16,039 acres and is situated wholly in Hancock County. The plaintiff district consists of 13,476 acres and is situated wholly in Adams County. The southern boundary of the defendant district is coextensive with the northern boundary of the plaintiff district.

During the 1880’s, both districts were organized and were each protected by a levee constructed by the Army Corps of Engineers. The levee formed the western boundary of the districts. In May of 1920, the commissioners of the respective districts agreed to formulate and implement a comprehensive scheme of internal drainage for the benefit of both districts. To accomplish that task, they employed engineers Robert Isham Randolph and Webster R Bushnell to make a study and survey of both districts and to report thereon with the necessary maps, plats, plans, profiles, and estimates of cost for the proposed work.

On February 1, 1921, the drainage plan proposed by engineers Randolph and Bushnell and their report, together with the maps, plans, profiles and estimates of cost for the proposed work, were approved by the respective districts and were expressly made a part of the contract governing the internal drainage of the districts. The contract provided among other things that the internal drainage of each district was to be the burden and obligation of each district individually and that neither district should permit its internal waters to flow into and upon the lands of the other. The contract excepted a 2,050-acre area of land in the southeast corner of the defendant district, known as the Wehner territory. Water arising upon the Wehner territory was to be drained into the plaintiff district.

Thereafter, the engineers submitted an amended report and plan of drainage dated June 1, 1922, which was also approved by the respective districts. On July 26, 1922, the Adams County and Hancock County courts, after making some modifications, approved the contract, which incorporated by reference the 1921 and 1922 engineering reports.

Construction of the drainage project was completed by the early 1930’s. In 1981, the plaintiff filed the instant suit alleging that the defendant had violated the contract from its inception to the time of the filing of suit in that the defendant throughout that period had failed by means of ditches, drains, levees, and pumping plants to take care of and remove the internal waters from a specified 692-acre area located in the defendant district and not a part of the Wehner territory. The plaintiff further alleged that the defendant had breached the contract by permitting water arising on the 692 acres to flow into and upon the lands of the plaintiff district. In support of its position, the plaintiff relied on the following contractual language:

“[T]he internal drainage of each district is the burden and obligation of each district individually; and *** each district shall by means of ditches, drains, levees and pumping plants, take care of and remove the internal waters within its boundaries and protect its lands and the other district therefrom at its own proper charge and expense and without cost or contribution from the other district in such behalf; and neither district shall suffer or permit any of its internal waters to flow into and upon the lands of the other district, except however that the water arising upon a tract of land in the southeast corner of Hunt Drainage District embracing 2050 acres, hereinafter referred to as the Wehner Territory, and hereinafter more particularly bounded and described, but excluding the waters of the remainder of the district, shall, subject to the terms and conditions of this contract, be drained into the ditches of the Lima Lake District.”

Prior to trial, the defendant filed a motion to dismiss the plaintiff’s complaint, alleging that the plaintiff’s claim was barred by the applicable statute of limitations. The trial court granted the defendant’s motion, but allowed the plaintiff leave to file an amended complaint alleging only breaches of contract occurring in the 10 years preceding the suit and during its pendency.

The plaintiff subsequently filed an amended complaint. In count I, it sought damages for increased pumping and ditch clean-out costs incurred during the 10 years before the filing of the suit and thereafter. In count II, it requested a mandatory injunction to compel the defendant’s future compliance with the contract. In count III, it requested in the alternative that the defendant reimburse the plaintiff pursuant to sections 11 — 2 and 11 — 9 of the Illinois Drainage Code (the Code) (Ill. Rev. Stat. 1989, ch. 42, pars. 11 — 2, 11 — 9) for future expenses resulting from the defendant’s failure to perform under the contract.

The evidence at trial showed that water from the 692-acre area in the defendant district did drain upon the land of the plaintiff district, thereby increasing the ditch clean-out and pumping costs in the plaintiff district beyond what they would otherwise be. The evidence further showed that the situation had remained the same from the time the parties completed their work in the early 1930’s until the time of trial. The evidence also showed that the ditches and levees in the area in question were constructed in accordance with the plans approved by the district commissioners and the county courts in 1921 and 1922.

Given that the instant trial commenced more than 60 years after the contract was approved by the county courts, no testimony was presented from the framers of the contract, the engineers who prepared the drainage plans, or the original landowners affected by the drainage system. However, various witnesses, including the current commissioners of both districts, testified either that they were unaware that the 692-acre area drained into the plaintiff district or that they believed the area was part of the Wehner territory.

William Klinger testified that he had worked as an engineer for the plaintiff from 1936 until 1972 and for the defendant from the early 1940’s until the time of trial. He stated that he was aware of the 692-acre area, but believed it was part of the Wehner territory. He noted that he had knowledge of the contours of the 692-acre area and that he periodically reviewed the contour maps with the commissioners of both districts. He further noted that those maps showed that the drainage of water from the area in question was southerly, toward the plaintiff district.

In denying the plaintiff relief, the court found that an ambiguity existed in the contract between the general language requiring each district to be responsible for the drainage of water arising within its boundaries, except for the Wehner territory, and the more specific engineering-related provisions regarding the location and design of ditches and levees. The court further found that the more specific language in the engineering plans was controlling, that all the ditches and levees were constructed in accordance with those plans, and that therefore the contract had not been breached. The court also found that the plaintiff’s action for damages and injunctive relief was barred by the 10-year statute of limitations applicable to written contracts. Additionally, the court denied the plaintiff the alternative relief requested in count III of its complaint, noting that the statutory sections relied upon were inapplicable to the instant case because the parties had previously determined their rights pursuant to a binding written contract.

On appeal, the plaintiff contends that the trial court erred in interpreting the contract. In that regard, it argues that the most specific reference in the entire contract is the exception created for the Wehner territory. Therefore, it continues, since the Wehner territory represents the only exception from the requirement that each district assume responsibility for its internal drainage, the court erroneously carved out an exception for the 692-acre area. The plaintiff also contends that the court erred in denying it the statutory relief requested in count III of its amended complaint.

In response, the defendant argues on appeal that while the contract provided generally that the defendant should drain its own internal waters with the exception of waters arising on the Wehner territory, the specific directions in the engineering plans as to how that drainage was to be accomplished were also a part of the contract and should take precedence over the language relied upon by the plaintiff.

We note that a contract is ambiguous if it is reasonably susceptible of being understood in more than one sense or is obscure in meaning. (Boise Cascade Home & Land Corp. v. Utilities, Inc. (1984), 127 Ill. App. 3d 4, 468 N.E.2d 442.) In construing an ambiguous or inconsistent contract, the fundamental question is always the intent of the parties, which intent may be gathered from all the facts and circumstances surrounding the making of the contract. (Cedar Park Cemetery Association, Inc. v. Village of Calumet Park (1947), 398 Ill. 324, 75 N.E.2d 874; In re Estate of Klinker (1979), 80 Ill. App. 3d 28, 399 N.E.2d 299.) Furthermore, a court may determine the parties’ intent by looking to the interpretation which the parties themselves have placed on the agreement as shown by their contemporaneous or subsequent acts. (Thread & Gage Co. v. Kucinski (1983), 116 Ill. App. 3d 178, 451 N.E.2d 1292.) Additionally, we note that where one intention is expressed in one clause of an instrument and a different, conflicting intention appears in another clause of the same instrument, effect should be given to the clause which is more specific, and the general clause should be subjected to such modification or qualification as the specific clause makes necessary. McDonald’s Corp. v. Butler Co. (1987), 158 Ill. App. 3d 902, 511 N.E.2d 912.

Applying the above principles to the circumstances of the instant case, we find that the trial court properly concluded that the defendant did not breach the contract. The engineering plans provided the specific methods by which the general purposes of the contract were to be accomplished and thus served to modify and qualify the general language relied upon by the plaintiff.

More importantly, the plans showed that the flow of water from the 692-acre area was generally in a southerly direction into the plaintiff district. Even so, the county courts specifically approved those plans. In so doing, both courts stated that the plans disclosed “in full and in detail, the entire plan and scheme of drainage.” In light of the approval of the engineering plans by the county courts and the original district commissioners, we find that it can be inferred that the parties and the courts contemplated that as a part of the parties’ mutual obligation water from the 692-acre area would drain into the plaintiff district.

We next turn to the plaintiff’s statutory claim as set forth in count III of its amended complaint. Section 11 — 8 of the Code provides for the relief requested by the plaintiff only when the parties have not entered into a written contract concerning the matter in dispute. (Ill. Rev. Stat. 1989, ch. 42, par. 11 — 8.) Here, the parties specifically agreed by written contract that each district would construct and maintain its own ditches, drains, levees, and pumping plants without contribution from the other district. Accordingly, the trial court properly denied the plaintiff relief.

The judgment of the circuit court of Hancock County is affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.


author: JUSTICE GORMAN

text:
    PETER GUERTIN et al., Plaintiffs-Appellees, v. HAZEL GUERTIN, Defendant-Appellant (First Midwest Bank/Illinois, f/k/a National Bank of Joliet, Defendant).
    Third District
    No. 3-90-0127
    Opinion filed October 12, 1990.

      Bennett J. Braun, of Stefanich, McGarry, Wols & Okrei, Ltd., of Joliet (Roman Okrei, of counsel), for appellant.
    Timothy J. Rathbun, of McKeown Law Office, of Joliet, for appellees.
   JUSTICE GORMAN

delivered the opinion of the court:

Defendant Hazel Guertin (Hazel) appeals from the trial court’s issuance of an indirect civil contempt order. We vacate the contempt order.

Peter Guertin, Jeanette Wheeler, Arthur Guertin (now deceased) and Wilfred Guertin (now deceased) are siblings. Hazel was the wife of Arthur Guertin. From 1975 until his death in 1988, Wilfred lived in a boarding house near Arthur and Hazel in Joliet, Illinois. Wilfred was blind and dependent upon Arthur and Hazel for assistance.

Shortly after moving to Joliet, Wilfred purchased three certificates of deposit with the First National Bank of Joliet (n/k/a First Midwest Bank/Illinois). These certificates of deposit totalled $55,000 and represented the bulk of Wilfred’s net worth. In 1987, Wilfred executed his last will, distributing his property equally among his then-surviving brothers and sister. However, prior to execution of the will, Wilfred made Arthur and Hazel joint tenants with him on the certificates of deposit.

After Wilfred’s death, Peter and Jeanette speculated that the inclusion of Arthur and Hazel as joint tenants on the certificates of deposit could have been the result of undue influence exerted by Hazel or that Wilfred did not know that he was adding them as joint tenants. Peter and Jeanette filed an unverified equitable bill of discovery in order to depose Hazel and First Midwest Bank to aid in possible claims.

Hazel filed a special and limited appearance, moving to dismiss the petition on the basis that the court possessed no jurisdiction over the subject matter in that the petition was merely one to seek discovery to determine whether a cause of action existed against a known defendant. The motion was denied. Hazel moved for an order authorizing an interlocutory appeal. This also was denied. Hazel then moved this court for leave to appeal in order to avoid having to be held in contempt for this court to consider the issue. The appellees filed both a motion to dismiss the appeal and a motion to impose sanctions pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611). Both motions were allowed.

When this cause was remanded to the trial court, Peter and Jeanette set Hazel’s deposition. Hazel did not appear, and the court held her to be in civil contempt. She was ordered to pay total fines and costs of $100. Hazel appeals, requesting that this court vacate the trial court’s order holding her in indirect civil contempt.

Generally, a court order is conclusive and must be obeyed until it is modified or set aside. While contempt is a proper means for a court to enforce its orders, contempt will not lie where the court lacked jurisdiction to enter such an order. (Jenner v. Wissore (1988), 164 Ill. App. 3d 259, 517 N.E.2d 1220; People v. Huntley (1986), 144 Ill. App. 3d 64, 493 N.E.2d 1193.) Jurisdiction in a particular case constitutes not only the power of a court to hear and determine the matter before it, but also the power to render particular judgment in it, and every act of a court beyond its jurisdiction is void. Talandis Construction Corp. v. Illinois Building Authority (1978), 60 Ill. App. 3d 715, 377 N.E.2d 237.

The relief sought in this case was requested in the form of an “equitable bill of discovery.” Appellees speculated that Hazel had exerted undue influence over Wilfred and sought to depose her and the bank officials before the filing of a complaint. The issue before us is whether the trial court had jurisdiction to grant the appellees’ motion. If the trial court had jurisdiction, the order of contempt should be enforced. If the court was without jurisdiction, then its action was void ab initio and the court’s contempt citation must be vacated.

At common law, the courts had no power to require a party to an action to answer interrogatories. The equitable bill of discovery was used to enable a plaintiff to obtain information and prepare his cause for trial on the ultimate issues. (16 Ill. L. & Prac. Discovery §2 (1971).) These bills were made ancillary to already pending claims for substantive legal or equitable relief. See, e.g., Ashton v. Macqueen (1935), 361 Ill. 132, 197 N.E. 561; Brandenburg v. Buda Co. (1921), 299 Ill. 133, 132 N.E. 514; Kendallville Refrigerator Co. v. Davis (1891), 40 Ill. App. 616; Philadelphia Fire Insurance Co. v. Central National Bank (1878), 1 Ill. App. 344.

We have found only one case where a court allowed a party’s motion for an equitable bill of discovery in the absence of any pending claims for relief. In City of Chicago v. Hart Building Corp. (1969), 116 Ill. App. 2d 39, 253 N.E.2d 496, the contemnor (Keefe) had served as a receiver appointed by the court to manage certain properties. Keefe attempted to conceal his self-dealing in the receivership properties through subterfuge. The City of Chicago, alleging that Keefe had breached his fiduciary duty, brought an equitable bill of discovery against Keefe seeking certain information. Keefe initially moved to strike the pleading, arguing that the trial court had no jurisdiction over him or the subject matter since his final report had been approved and he had been discharged as a receiver. Additionally, he contended that as the city’s petition was not ancillary to and in aid of any pending civil suit at law, the bill was an improper pleading. The trial court rejected these arguments and refused to strike the City’s bill. Keefe eventually gave a full account of what had transpired and he was held in contempt of court.

On appeal, Keefe contended once again that the trial court did not have jurisdiction over him. The appellate court rejected Keefe’s argument. Acknowledging this to be a unique application of the bill, the court in Hart Building limited its holding by stating “[wjithin the unusual facts of this case, we hold that no error was committed when the City commenced these proceedings with its petition for disclosure, thereby compelling Keefe to produce the necessary information.” Hart Building, 116 Ill. App. 2d at 49.

We have found only one case in which a court applied the Hart Building decision. (See People v. B.R. MacKay & Sons, Inc. (1986), 141 Ill. App. 3d 137, 490 N.E.2d 74.) We note that in that case, as in Hart Building, an individual had made misrepresentations to a court in a previous matter. As did the court in Hart Building, the court in B.R. MacKay & Sons indicated that it was “the unusual facts present” in the case and the predicament that “[t]o rule otherwise would allow respondent to profit from its own wrongs” that provided the impetus for the unusual decision. B.R. MacKay & Sons, Inc., 141 Ill. App. 3d at 140-41.

Under the Code of Civil Procedure (Code) discovery, including the taking of depositions, is to be conducted in accordance with the rules. (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 1003 (a), (b).) Accordingly, it is necessary to examine the Code and the supreme court rules to determine if the equitable bill of discovery has been codified.

Supreme Court Rule 224 (134 Ill. 2d R. 224) is entitled “Discovery Before Suit to Identify Responsible Persons and Entities” and provides, in pertinent part:

“(i) A person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for such discovery.
(ii) The action for discovery shall be initiated by the filing of a verified petition in the circuit court of the county in which the action or proceeding might be brought or in which one or more of the persons or entities from whom discovery is sought resides. *** The order allowing the petition will limit discovery to the identification of responsible persons and entities ***.”

Supreme Court Rule 224 is inapplicable to the instant case as the identity of the defendant is already known. Additionally, it must be noted that Rule 224 requires a verified petition. The petition in the instant case was unverified. Accordingly, even if this rule had been applicable, the appellees failed to comply with the procedural requirements of the rule.

Appellees contend that section 2 — 402 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 402) represents a codification of the common law equitable bill of discovery and that their motion falls within the purview of section 2 — 402. We disagree with both of these assertions.

Section 2 — 402, entitled “Respondents in discovery” states in part:

“The plaintiff in any civil action may designate as respondents in discovery in his or her pleading those individuals or other entities, other than the named defendants, believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the action.
Persons or entities so named as respondents in discovery shall be required to respond to discovery by the plaintiff in the same manner as are defendants and may, on motion of the plaintiff, be added as defendants if the evidence discloses the existence of probable cause for such action.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 110, par. 2 — 402.

Initially, we note that the appellees’ brief cites no authority for the proposition that section 2 — 402 is a codification of the equitable bill of discovery. We have found no authority to support this proposition. It is our opinion that the equitable bill of discovery, utilized in a time when courts were without power to compel discovery, has been rendered obsolete by our current system of pleading and practice. By the very clear language of section 2 — 402 (see italics in the statute) it is contemplated that a complaint has been filed with at least one named defendant before a party may employ section 2 — 402. We therefore reject the appellees’ argument that section 2 — 402 applies to the instant case.

We find no other grounds, either in the Code or the rules, to support the trial court’s granting of appellees’ motion to depose Hazel prior to the filing of a complaint. Accordingly, we are of the opinion that the trial court was without jurisdiction to compel Hazel’s deposition. The trial court’s action was void ab initio and must be reversed. As the underlying action was outside the trial court’s jurisdiction, the contempt citation must be vacated.

For the reasons listed above, the order of the circuit court of Will County requiring Hazel to make herself available for deposition is reversed. The contempt citation issued against Hazel for failing to comply with the deposition order is vacated.

Order reversed; contempt citation vacated.

SCOTT and BARRY, JJ., concur.


author: PRESIDING JUSTICE HEIPLE JUSTICE BARRY,

text:
    GROWER SERVICE CORPORATION, Plaintiff-Appellee, v. CHARLES W. BROWN, JR., et al., Defendants (Smith Trust and Savings Bank, Defendant-Appellant).
    Third District
    No. 3 — 89—0361
    Opinion filed October 9, 1990.

      BARRY, J., dissenting.
    Ludens, Potter & Burch, of Morrison (Thomas J. Potter, of counsel), for appellant.
    Plager, Hasting & Krug, Ltd., of Freeport (Ralph E. Elliott, of counsel), for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Defendant Smith Trust & Savings Bank (Bank) appeals from an order of the circuit court of Whiteside County refusing to dissolve a preliminary injunction which prevents defendant from applying certain funds belonging to Erie Ag Service (Erie Ag) to satisfy outstanding unsecured loans owed by Erie Ag to defendant. Grower Service Corporation, plaintiff, is also an unsecured creditor of Erie Ag.

According to the record, Grower Service Corporation sold agricultural chemicals to Erie Ag Service on an open account for the year 1988. In October of 1988, Erie Ag transmitted to plaintiff a check in the sum of $49,998 drawn on the defendant Bank. That check was returned for insufficient funds in October and twice in November of 1988. In December of 1988, Erie Ag transmitted a new check to plaintiff in the sum of $50,000 after having made deposits totaling $81,800 during November. That check too was returned three times for insufficient funds. Plaintiff was eventually notified that deposits made by Erie Ag were being applied directly to outstanding debts with defendant Bank.

On February 9, 1989, Erie Ag held a public sale of equipment and other items which resulted in proceeds in excess of $200,000, which Erie Ag deposited in defendant Bank. The Bank placed these funds in escrow for application to the debts owed by Erie Ag to the Bank. In April, plaintiff filed an unverified complaint for preliminary and permanent injunctions to prevent disbursement of the escrowed funds, alleging that Erie Ag owed plaintiff $67,716 as of March 27, 1989, plus interest thereafter, that the escrowed funds were the only resource available for payment of the amount due plaintiff, and that plaintiff would otherwise suffer irreparable injury for which there is no adequate remedy at law.

After notice and hearing, the trial court granted the preliminary injunction in order to maintain the status quo pending a hearing on the permanent injunction. No appeal was taken from that order, but subsequently defendant Bank filed a motion to dissolve the preliminary injunction. After a hearing, the trial court denied the motion, and the Bank filed this interlocutory appeal from that ruling, pursuant to Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)).

When presented with a motion to dissolve a temporary injunction, the trial court has broad discretionary powers. (Stoller v. Village of Northbrook (1987), 162 Ill. App. 3d 1001.) The standard of review on appeal from the denial of a motion to dissolve a preliminary injunction was well stated by Justice Stamos, writing for the majority, in Stoller v. Village of Northbrook, as follows:

“When a party presents a motion to dissolve a temporary injunction, it is only necessary that the party in whose favor the restraining order has been issued show to the trial court, in the statement of his case on the merits, that there is a fair question as to the existence of his rights. [Citation.] If the party in whose favor the restraining order has been issued shows, to the trial court’s satisfaction, that the matter out of which his asserted rights arise should be preserved until a decision on the merits, then the trial court may deny the motion to dissolve the restraining order.” (162 Ill. App. 3d at 1008-09.)

The fact that Erie Ag is indebted to plaintiff is not in dispute. The only question is whether plaintiff is entitled to a temporary injunction to prevent the loss of money owed to it pending a decision on the merits.

Defendant Bank first contends that the injunction was invalid because it amounted to a prejudgment attachment without meeting the conditions set forth in the attachment statute. (See Ill. Rev. Stat. 1987, ch. 110, par. 4 — 101.) As a general rule, an unsecured creditor must obtain a judgment before it is entitled to an equitable remedy to enforce its claim. The Illinois view was stated in Lewis v. West Side Trust & Savings Bank (1937), 288 Ill. App. 271, 278, and quoted in Carriage Way Apartments v. Pojman (1988), 172 Ill. App. 3d 827, 838, as follows:

“ ‘[T]he theory of taking away the control of a person’s property by means of an injunction for the purpose of anticipating a judgment which may or may not thereafter be obtained by a litigant is abhorrent to the principles of equitable jurisdiction.’ ”

Injunctive relief is reserved for those situations where there exists no adequate legal remedy. Where money damages provide adequate remedy, injunctive relief is not proper. (Allstate Amusement Co. of Illinois, Inc. v. Pasinato (1981), 96 Ill. App. 3d 306.) Because the only relief requested by plaintiff is monetary, injunctive relief is inappropriate and resembles a prejudgment attachment. The sole exception to the rule prohibiting prejudgment attachments is where the funds which are the subject of the injunction are also the subject of the dispute. (American Re-Insurance Co. v. MGIC Investment Corp. (1979), 73 Ill. App. 3d 316.) The exception contemplates specific funds such as insurance proceeds or inheritances. Injunctive relief has been found inappropriate in disputes involving the proceeds from the sale of real estate to which defendants believed they were entitled (Carriage Way Apartments v. Pojman (1988), 172 Ill. App. 3d 827), and real estate commissions to which a plaintiff felt he was entitled (Mass v. Cohen Associates, Inc. (1983), 112 Ill. App. 3d 191). Neither case met the requirements of the exception because the funds sought to be enjoined were not the specific funds in dispute. Similarly, in the instant case, plaintiff merely seeks satisfaction of its debt with interest. Plaintiff has no specified interest in the $200,000 sale proceeds that are the subject of the injunction.

The trial court imposed the injunction in order to maintain the status quo. The basis for allowing an injunction to maintain the status quo is to avoid irreparable harm. (Kessler v. Continental Casualty Co. (1985), 132 Ill. App. 3d 540.) In the instant case, plaintiff will not suffer irreparable harm even if the escrow fund is depleted, because money damages are available as a legal remedy. It is notable that Kessler involves insurance proceeds which fall squarely within the above-named exception. The instant case involves no such funds and injunctive relief is inappropriate.

Therefore, we reverse the denial of the motion to dissolve the injunction and remand the matter for further proceedings in accordance with this matter.

Reversed and remanded.

STOUDER, J., concurs.

JUSTICE BARRY,

dissenting:

I dissent from the decision of the majority in this cause. In Carriage Way Apartments v. Pojman (1988), 172 Ill. App. 3d 827, 527 N.E.2d 89, the court ruled that a preliminary injunction to place the disputed funds in escrow does not change the status quo but rather preserves the status quo as it existed prior to the controversy. The funds are thus protected from dissipation while the dispute is litigated. The same purpose is present here. The defendant Bank has plainly evidenced an intent to apply the disputed funds to the debt owing from Erie Ag to the Bank although Erie Ag deposited the funds in its checking account and drew checks upon it in payment of other debts. The Bank’s refusal to honor Erie Ag’s checks was an attempt to determine the priority of creditors by placing itself ahead of plaintiff. Since the Bank is both a creditor and a depository, it should not be able to control Erie Ag’s funds for its own benefit until the merits of the dispute have been litigated. When a court of equity acts to prevent such an injustice, as the trial court did here, I would affirm.

The majority opinion of this court concludes that plaintiff is seeking money damages and, therefore, has an adequate remedy at law. However, when the debtor is insolvent and has not other assets with which to discharge the obligation involved, the remedy at law will not be adequate. In that situation a preliminary injunction may be issued to prevent irreparable injury. Allstate Amusement Co. of Illinois, Inc. v. Pasinato (1981), 96 Ill. App. 3d 306, 421 N.E.2d 374.

To buttress plaintiff’s claim of irreparable harm, one need look no further than the complaint which alleged that two different checks issued in payment of Erie Ag’s debt to plaintiff were returned six different times for insufficient funds after Erie Ag had deposited money in its account in defendant Bank. The complaint also alleged that Erie Ag had no available sources for payment of the claim other than the fund held by the Bank. Testimony was presented in support of the latter allegation that plaintiff knows of no other assets for payment of Erie Ag’s debt. According to the record (R-3 through R-5), defendant’s attorney argued in the trial court that Erie Ag had to have additional money advanced by the Bank in order to continue its business operations. This fact alone would indicate to the trial court that Erie Ag had no other assets. As a final note, at oral argument before this court, it was admitted that Erie Ag filed voluntary bankruptcy in July of 1989. The facts before the trial court were sufficient to support its ruling, and the court did not abuse its discretion in denying the motion to dissolve the preliminary injunction. I would, therefore, affirm the denial of the motion to dissolve.

Nonetheless, I believe defendant is correct in its contention that the injunction was overly broad in that it prevents disbursement of all the proceeds of the sale of equipment and other property of Erie Ag. Plaintiff’s proof in support of its complaint indicated that Erie Ag owed plaintiff $52,000 for chemicals previously supplied and an additional $15,000 interest at the rate of 2% per month as of March 27, 1989. Plaintiff contends on appeal that additional interest and possible punitive damages justify an injunction to preserve the entire fund. On the basis of the record, I can only conclude that the injunction is in fact overly broad in that it purported to maintain a fund far in excess of the amount in controversy.

Plaintiff has filed in the circuit court a motion to amend its complaint to add a count for punitive damages, but that motion has not been heard or allowed. As the pleadings stood at the time the preliminary injunction was granted and as the pleadings stand now, there is no basis for enjoining disbursement of funds in excess of the amount of plaintiff’s claim.

Accordingly, the injunction should be modified to prohibit disbursement of no more than the amount in dispute.


text:
    FARM CREDIT BANK OF ST. LOUIS, Plaintiff-Appellee, v. BONNIE J. LYNN et al., Defendants-Appellants.
    Third District
    No. 3 — 90—0436
    Opinion filed October 12, 1990.

      Law Offices of Charles O. Henry, of Kankakee (Charles O. Henry, of counsel), for appellants.
    Hatch, Blockman & McPheters, of Champaign (Jeffrey L. Fehrenbacher, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

The defendants, Bonnie J. Lynn and the Eastern Illinois Trust and Savings Bank, appeal an order preventing them from transferring certain property and requiring them to disclose certain names and addresses. We affirm.

The record shows that on February 23, 1990, the plaintiff, Farm Credit Bank of St. Louis, filed a verified complaint under the Uniform Fraudulent Transfer Act (the Act) (Ill. Rev. Stat. 1989, ch. 59, pars. 101 through 112). The plaintiff alleged the following: (1) it held a promissory note in the original amount of $195,000 from Bonnie J. Lynn and her ex-husband; (2) on December 30, 1988, Lynn executed two warranty deeds to the Eastern Illinois Trust and Savings Bank as trustee under trust No. 0338; (3) both deeds stated that they were exempt from transfer declarations under section 4(e) of the Real Estate Transfer Tax Act (Ill. Rev. Stat. 1989, ch. 120, par. 1004(e)); (4) section 4(e) exempted transfer declarations where the consideration was less than $100; (5) the Eastern Illinois Trust and Savings Bank later certified that Lynn did not own a beneficial interest in trust No. 0338; (6) on August 18, 1989, the plaintiff filed suit to collect money owed on the note; (7) Lynn refused to disclose the owners of the beneficial interest of the trust or the consideration she received for transferring the real estate; (8) Lynn was still a debtor to the plaintiff within the meaning of the Act; and (9) the transfer of real estate was fraudulent under the Act. The plaintiff sought various forms of relief, including an order preventing the defendants from transferring the real estate and requiring them to disclose the names and addresses of the holders of the beneficial interest in trust No. 0338.

The defendants moved to dismiss the complaint on the grounds that the Act was enacted after the alleged transfer and should not be given retroactive effect. After the trial court denied their motion, the defendants filed their answer to the complaint. They denied several of the plaintiff’s allegations, including the assertions that Lynn was a debtor to the plaintiff and that the transfer was fraudulent. They also alleged that the real estate was transferred for $205,000 and that Lynn was not insolvent at the time of the transfer.

The trial court subsequently enjoined Eastern Illinois Trust and Savings Bank from transferring the real estate. The court also ordered the defendants to disclose the names and addresses of the holders of the beneficial interest in trust No. 0338. The court did so so the plaintiff could identify and serve any other necessary parties to the action.

On appeal, the defendants first argue that the court lacked the power to issue an injunction. The defendants note that the predecessor to the Act did not expressly provide for injunctive relief. (See Ill. Rev. Stat. 1987, ch. 59, pars. 4 through 7.) Although the Act now provides for an injunction against the disposition of property or for any other relief the circumstances may require (Ill. Rev. Stat. 1989, ch. 59, pars. 108(a)(3)(A), (a)(3)(C)), the defendants argue that it should not be given retroactive effect.

The issue of whether a statute should be retroactively applied is primarily a question of legislative intent. (Champaign County Nursing Home v. Petry Roofing, Inc. (1983), 117 Ill. App. 3d 76, 452 N.E.2d 847.) Moreover, the issue should be decided on the basis of whether justice, fairness, and equity militate for or against the retroactive application of the statute to a particular class of persons. (National Can Corp. v. Industrial Comm’n (1986), 148 Ill. App. 3d 1079, 500 N.E.2d 437.) In applying these fundamental concepts, an important inquiry is whether retroactive application gives effect to, or defeats, the good-faith expectations of the members of the class. National Can Corp., 148 Ill. App. 3d at 1083, 500 N.E.2d at 440.

Here, the Act replaced the provisions in the Statute of Frauds (Ill. Rev. Stat. 1989, ch. 59, pars. 1 through 18) addressing fraudulent conveyances. The legislature’s express purpose was to harmonize Illinois law with the laws of other States. (Ill. Rev. Stat. 1989, ch. 59, par. 112.) Although the prior statute did not mention injunctive relief, it did not preclude a party from seeking an injunction under the common law. Under these circumstances, we find that justice would best be served by retroactive application of the injunction provisions. We therefore hold that the court had the power to issue an injunction.

The defendants next argue that even if the trial court had the power to enjoin the transfer of the property, it should not have done so. They contend that the factors justifying such relief were not present in this case.

The purpose of a preliminary injunction is to preserve the status quo until the case can be disposed of on its merits. (Bismarck Hotel Co. v. Sutherland (1980), 92 Ill. App. 3d 167, 415 N.E.2d 517.) A party seeking a preliminary injunction must establish the following: (1) it has no adequate remedy at law and will be irreparably injured if the injunction is not granted; (2) the threatened injury to it will be immediate, certain, and great, while the loss to the opposing party will be comparatively insignificant; (3) it has a reasonable likelihood of prevailing on the merits; and (4) granting the injunction will not injure the general public. (Hoover v. Crippen (1987), 151 Ill. App. 3d 864, 503 N.E.2d 848.) The decision of whether to grant a preliminary injunction rests within the sound discretion of the trial court, and appellate review is restricted to determining whether the trial court correctly exercised its broad discretion. Central Building & Cleaning Co. v. Vodnansky (1980), 84 Ill. App. 3d 586, 406 N.E.2d 32.

The instant plaintiffs verified complaint sufficiently alleged fraud under the Act. The injunction served to preserve the status quo and to prevent further possible fraud. Accordingly, we find that the court did not abuse its discretion in enjoining transfer of the property.

In conjunction with their previous argument, the defendants also contend that the trial court should not have ordered the disclosure of the names and addresses of the holders of the beneficial interest in trust No. 0338.

The purpose of the trial court’s order was to allow the plaintiff to identify the holders of the beneficial interest so it could serve them with summonses and complaints. Under the plaintiff’s allegations, such parties may be necessary for the resolution of the case. Additionally, disclosure of the names would impose no undue hardship on the defendants. We therefore find that the trial court did not err in ordering disclosure of the names and addresses.

The judgment of the circuit court of Iroquois County is affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN BRUMAS, Defendant-Appellant.
    Third District
    Nos. 3 — 89—0558 through 3 — 89—0562 cons.
    Opinion filed October 16, 1990.

      Catherine Fitzsimmons, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (Gary F. Knidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

This case comes on appeal for a second time pursuant to defendant’s petition for post-conviction relief. In the first appeal, this court determined that defendant was entitled to an evidentiary hearing for the purpose of determining whether defendant was the victim of ineffective assistance of counsel, thereby making his guilty pleas involuntary. (See People v. Brumas (1986), 142 Ill. App. 3d 178, 491 N.E.2d 773.) An evidentiary hearing was subsequently held after which the trial court denied defendant’s petition for post-conviction relief. Defendant now appeals the trial court’s order entered September 5, 1989, raising the following three specific issues for review: whether the trial court erred in denying the defendant’s post-conviction petition on the basis that defendant voluntarily waived his attorney’s conflict of interest; whether the trial court erred in denying the defendant’s post-conviction petition on the basis that trial counsel made no threat to withdraw from the case if defendant did not accept the people’s tendered plea offer; and, finally, whether defendant was denied effective assistance of post-conviction counsel because of counsel’s failure to assert an issue regarding restitution.

Defendant was originally charged with five counts of unlawful delivery of a controlled substance, two counts of unlawful delivery of cannabis, and one count of misdemeanor theft. Defendant entered negotiated pleas of guilty in April 1984 to the five charges of unlawful delivery of a controlled substance. In exchange, the State dismissed the other three charges and recommended that defendant be sentenced to concurrent terms of imprisonment ranging from three years to six years. The plea agreement also imposed fines and ordered restitution to the City of Moline in the amount of $9,000, which was the amount spent by the Moline police department in purchasing drugs from defendant.

Defendant subsequently filed a post-conviction petition alleging his pleas were involuntary because he had been denied effective assistance of counsel. Specifically, defendant alleged his attorney, Richard McClean, had a conflict of interest because his firm acted as special assistant Attorney General in consumer fraud cases. Moreover, defendant alleged that his attorney told him if he did not accept the negotiated plea, he would withdraw. On defendant’s first post-conviction appeal, he also argued that the trial court was without authority to order defendant to pay restitution to the City of Moline.

After remand from the first appeal, the Rock Island public defender’s office was appointed on May 4, 1987, to represent defendant at the post-conviction hearing. On May 16, 1989, the State filed a motion to dismiss for want of prosecution. The trial court denied the motion but directed that a hearing on the matter be held within 60 days. A hearing was subsequently commenced on August 21, 1989. At the hearing, defendant testified as follows: That he was represented by Richard McClean; that he believed the cause would go to trial until four days prior to the actual trial date; that he became aware his attorney worked for the Attorney General three to four weeks after his arrest; that he was aware two to three weeks after his arrest that he needed to sign a waiver before McClean could continue to represent him; that he signed the waiver the day he pleaded guilty because he felt he had no choice; that the plea agreement was first offered two days prior to trial and that his attorney advised “[i]f you don’t take it you’ll have to find another attorney”; that he had paid his attorney $2,200 and he had no funds to hire another attorney; that he knew he had the option of getting a court-appointed attorney but he did not seek one because “I didn’t know any better”; that he was pressured to sign the waiver in order for his attorney to represent him; that it was not his desire to plead guilty; that prior to his plea he spent no more than 2V2 to 3 hours discussing this case with his attorney; and that he believed his attorney’s conflict denied him effective assistance of counsel because he really didn’t have a lawyer that tried to help him.

On cross-examination, however, defendant acknowledged that he did not relay any of his concerns regarding the waiver to the judge after having been asked to do so by the judge. Defendant further acknowledged that his apparent lack of choice about the waiver and about his attorney threatening to withdraw were not expressed to the judge after having been asked if he had anything else he would like to add. Finally, defendant admitted the extent of his drug addiction and the circumstances surrounding his purchases of drugs leading up to the arrests.

After hearing defendant’s testimony, the court continued the hearing to August 28, 1989, to hear the testimony of Richard McClean. At this hearing McClean testified, in relevant part, as follows: that prior to defendant’s plea he had numerous conferences with defendant; that he told defendant he had no defense to the charges; that the defense of entrapment had been thoroughly discussed with defendant qnd case law was presented to defendant substantiating his position that entrapment was not available as a defense; that he recommended to defendant that defendant accept the State’s offer including a prison term for the minimum of six years; that he advised defendant that he could arrange for another attorney to look into the case and provide a second opinion if defendant was uncomfortable with his advise; that he told defendant the State intended to try each case separately and he could not do six felony trials for $2,500.

The trial court determined that at the time defendant entered into the negotiated plea he was “as agreeable as anybody could be to that disposition.” Further, that defendant was satisfied with his attorney’s representation and that defendant knew if his attorney withdrew from the case, that he had available to him the services of the public defender’s office. Finally, the trial court determined that defendant had no feasible entrapment defense. Thus, considering the circumstances presented, the trial court denied the petition for post-conviction relief.

Regarding the conflict of interest issue, defendant asserts that the trial court misapprehended the law when it stated that defendant’s attorney did not have a conflict of interest. Defendant argues that a per se conflict of interest develops when a special assistant Attorney General represents a criminal defendant. (People v. Washington (1984), 101 Ill. 2d 104, 461 N.E.2d 393; People v. Coslet (1977), 67 Ill. 2d 127, 364 N.E.2d 67; People v. Fife (1976), 76 Ill. 2d 418, 392 N.E.2d 1345.) We agree, however, the cases cited above for this proposition also indicate that the conflict may be nullified if the defendant is adequately informed of the conflict and knowingly and intelligently waives the conflict. We consider the trial court’s statements to be made after having heard sufficient testimony and agreement, not as a statement of law.

In this case, defendant’s attorney had disclosed in writing shortly after taking on defendant’s case that his law firm had a conflict of interest because it acted as special assistant Attorney General for the consumer fraud division and in that regard advised that the firm has earned fees from and established a close relationship with Attorney General’s office. The defendant was also asked to execute a receipt and waiver which indicated that defendant understood his attorney’s conflict and the possibility that it could influence his attorney’s representation. Defendant executed the waiver and acknowledged to the court at his sentencing hearing that he had executed the waiver with full knowledge and understanding of its contents. Defendant’s statement that he had “no choice” in the matter does not correlate with his execution of the waiver prior to the plea hearing, his knowledge that he could have had the services of the public defender and his in court statements to the judge at the plea hearing. There was nothing more that defendant’s attorney could have done to advise defendant of his conflict and allow the defendant the opportunity to seek other counsel. We therefore find that defendant knowingly and intelligently waived his attorney’s per se conflict of interest.

The second issue to be addressed is whether defendant’s attorney coerced defendant into pleading guilty against his wishes by threatening to withdraw from the case if the State’s offer was not accepted. Again, defendant claims he had “no choice” in the matter because he stated his attorney told him to accept the offer or get another attorney a few days prior to the trial date. Mr. McClean, however, stated that at no time did he threaten to withdraw from the case. He did, however, advise that his client accept the offer as there was no reasonable defense to be made and he could not take six felony cases to trial for $2,500. Apparently, defendant believed that entrapment would be used as a defense to the charges against him; however, Mr. McClean indicated he advised defendant entrapment was not available and provided cases to defendant to support his position. Most significant, however, is defendant’s answers to the court’s questions regarding the plea agreement. The record reveals that the court thoroughly advised defendant of his rights, the charges against him and the consequences of pleading guilty to the offenses. Defendant at all times persisted in his plea of guilty and desire to enter into the plea negotiation. Moreover, just prior to imposing sentence, the court asked defendant the following questions and defendant gave the following responses:

“THE COURT: Mr. Brumas, before the court imposes sentencing, is there anything you wish to tell me regarding this case; that is, how you were treated or represented or anything else you believe the court should hear at this time?
THE DEFENDANT: No, Ma’am.
THE COURT: This is the time to say anything if you believe you would want to advise the court of anything.
THE DEFENDANT: Just one thing. I was strung out before this investigation started, and I was hurting for money at the time.”

Additionally, we note that defendant’s cross-examination testimony at the post-conviction hearing supports Mr. McClean’s position that entrapment was not available to defendant. It is not our duty to rethink the strategy of the attorney in advising his client to plead guilty. Our determination is limited to whether counsel’s representation fell below an objective standard of reasonableness and, if so, whether there was a reasonable probability that, but for counsel’s unprofessional conduct, the result of the proceedings would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) We fail to find that counsel acted unreasonably, but determine that negotiating for a minimum sentence appeared to be the reasonable strategy to take. The record does not show signs of any threat made by defendant’s attorney to withdraw other than defendant’s statements made years after the fact. Defendant’s plea was voluntary.

Finally, defendant claims trial counsel at the post-conviction proceedings was ineffective for failing to raise the issue of whether the restitution judgment entered in favor of the City of Moline was inappropriate. In People v. Evans (1984), 122 Ill. App. 3d 733, 461 N.E.2d 634, this court determined that a governmental entity is not a “victim” as defined by section 5 — 5—6(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—6(b)) where public moneys have been expended to purchase drugs from a suspect. The circumstances presented in Evans regarding the drug purchased by undercover agents are indistinguishable from the facts presented herein. The State, however, contends that Evans has no application here because this was a fully negotiated plea arrangement and defendant has waived the right to complain about the propriety of the restitution order. Secondly, the State asserts that this court, on the first appeal, in essence determined that the restitution issue was intrinsically associated with the overall voluntariness of petitioner’s guilty pleas. Our previous opinion, however, addressed only the issue of whether defendant was entitled to a hearing. We made absolutely no determination regarding the restitution.

We do find, however, that Evans does not apply to this case because, unlike Evans, this restitution order was made pursuant to a fully negotiated plea agreement. Since defendant voluntarily entered into the plea agreement with a full understanding of all of its terms and conditions, he cannot now claim ineffective assistance of counsel for trial counsel’s failure to raise the restitution issue at the post-conviction proceeding. To vacate the restitution order would require a finding that defendant involuntarily entered into the plea agreement. Such a finding is simply not dictated by the record.

For all of the foregoing reasons, the trial court’s order denying defendant’s petition for post-conviction relief is affirmed.

Affirmed.

HEIPLE, P.J., and BARRY, J., concur.


author: PRESIDING JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD CROSBY, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 88—1067
    Opinion filed September 28, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Stephanie L. Ellbogen, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Daniel G. Galivan, Assistant State’s Attorney, of counsel), for the People.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Following a bench trial defendant was convicted of the charge of unlawful use of a weapon by a felon and sentenced to an extended term of eight years’ incarceration in the Illinois Department of Corrections.

The sole issue raised by defendant for our review is whether defendant’s sentence must be vacated and the cause remanded for re-sentencing where the trial court considered defendant’s prior convictions to enhance the unlawful use of weapons charge from a misdemeanor to a felony and to sentence him to an extended term.

At trial Chicago police officer Thomas Ward testified that on December 30, 1987, he and his partner David Betz were assigned to the public housing unit at Cabrini Green and were in uniform. Shortly after 7 p.m. on that date, the officers were conducting a “building check” at Ill. South Cleveland Avenue in Chicago, Illinois. While Ward was on the fifth floor, he heard two gunshots which sounded as if they came from the building’s lobby area.

Ward ran down the stairs with gun drawn. As he reached the second floor, he heard voices from the lobby and another shot. He testified that as he entered the lobby area, he saw defendant, who was reloading the small automatic pistol in his hand. Ward ordered defendant to drop the gun, which he did. Ward recovered the gun, removed one unexpended bullet, recovered three live bullets from the floor where defendant stood and four expended shell casings about 15 feet away. Ward scratched his identification mark on the gun.

On cross-examination, Ward testified that two black males who were with defendant in the lobby ran off as the officers approached. He testified he did not know if the gun was test fired after it was inventoried at the police station. Ward stated that when defendant surrendered the gun he said it was a cap gun.

Defendant testified that on December 30, at about 7:30 p.m., he was arrested by Chicago police officers in the first-floor lobby at Ill. North Cleveland, one of the buildings in the Cabrini Green Chicago Housing Authority complex. He testified that prior to his arrest he and his girlfriend, Rhonda Robinson, had gone to the building lobby to wait for his sister, who was on her way home from work. Defendant stated that when they got to the lobby there were some men there who were strangers to him. Two of the men began hitting him with sticks or bats, and he was defending himself by hitting them with his flashlight while his girlfriend ran upstairs to get his mother. He testified that when Officer Ward came into the lobby, the other men ran. He and Officer Ward struggled and he was arrested. He testified that he carried a flashlight but had no gun and that there were no lights on in the lobby. He denied hearing a gunshot.

Rhonda Robinson testified for the defense. She stated that when she and defendant got to the lobby, she saw four men standing there, that two men grabbed the defendant and she ran back to his mother’s apartment. Within 10 minutes she, defendant’s mother and two sisters got back down to the lobby, where the police were holding the defendant and were asking him what he was doing in the building. There were seven or eight policemen there. The police searched defendant. The lobby lights were out. One of defendant’s sisters had a flashlight. A police officer asked to use it and found a gun in the hallway. She testified she had heard two or three gunshots before she and defendant went down to the lobby. She testified she would not be able to identify the men who fought with defendant in the lobby.

On rebuttal the State called police officer Daniel Lukensmeyer, who testified that on December 30 between 7 and 7:30 p.m., he was in uniform and on duty patrolling the playground area between Ill. and Ill. N. Cleveland in a patrol car. He heard two shots come from the lobby area of the Ill. building. He testified he looked in the direction of the shots and saw defendant fire another shot. He stated he was about 150 feet from the outside of that building when he saw defendant. Lukensmeyer testified that he radioed in shots fired, drove his vehicle to the building, heard screaming and saw Officer Ward and his partner struggling with defendant. The lobby was lighted by three ceiling lights. Other people came down to the lobby while the officers were arresting defendant. Other officers arrived in response to the call for help.

Defense counsel stipulated that defendant was a felon, but contended the State had failed to prove defendant had a weapon when arrested. Following closing arguments, the courted stated it found the testimony of the police officers credible. The court found the defendant guilty of the charge of unlawful use of a weapon by a felon. The defense motion for a new trial was denied.

At sentencing, the court entered judgment on the guilty finding and sentenced defendant to an extended term of eight years’ incarceration under the Unified Code of Corrections, section 5 — 5—3.2(b)(1) (Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2(b)(l)).

The issue on appeal is whether it was proper for the trial court, based on defendant’s prior convictions, to enhance the unlawful use of a weapon charge from a misdemeanor to a felony and then to sentence him to an extended term based on those prior convictions. Defendant contends that the extended-term sentence must be vacated and the cause remanded for a new sentencing hearing, arguing that the trial court erred in considering his prior convictions in aggravation to impose an extended-term sentence.

The information by which the defendant was charged under section 24 — 1.1 recites that defendant “knowingly possessed on or about his person, a semi-automatic handgun, after having been convicted of the felony offenses of robbery, armed robbery and burglary.” See Ill. Rev. Stat. 1985, ch. 38, par. 24 — 1.1.

We note that while the information cites to the 1985 statute and the incident here occurred on December 30, 1987, and the statute as it existed in 1987 applies, a comparison of the language of the 1985 statute under which defendant was charged is identical to the 1987 statutory language. For this reason, our discussion here cites the 1987 statute.

At the commencement of trial the court granted the State’s motion to amend the information to strike “burglary,” leaving robbery as the underlying prior conviction(s). Defense counsel did not oppose the motion.

At the conclusion of the State’s evidence and prior to testimony in the defense case, counsel for defendant stipulated with the State that defendant was convicted of robbery on February 7, 1978, and sentenced to one to three years; on February 4, 1977, he pled guilty to armed robbery and was sentenced to four years to four years and a day; on January 7, 1981, he pled guilty to robbery and was sentenced to four years. Counsel for the State added “Judge, one conviction would be sufficient.” The court noted the stipulation and the State rested.

Defendant is charged with violation of section 24 — 1.1 of the

Criminal Code of 1961, which provides in part:

“(a) It is unlawful for a person to knowingly possess on or about his person or on his land or his own abode or fixed place of business any weapon prohibited under Section 24 — 1 of this Act or any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction. * * *
* * *
(d) Sentence. Violation of this Section by a person not confined in a penal institution shall be a Class 3 felony.” (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1.)

The Unified Code of Corrections, at section 5 — 8—1(a)(6), states:

“[F]or a Class 3 felony, the sentence shall not be less than 2 years and not more than 5 years.” HI. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(6).

The Unified Code of Corrections further provides for an extended - term as follows:

“A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present. Where the judge finds that such factors were present, he may sentence an offender to the following:
* * *
(5) for a Class 3 felony, a term shall not be less than 5 years and not more than 10 years.” Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a)(5).

Section 5 — 5—3.2, in setting out the factors in aggravation which permit the imposition of an extended-term sentence, provides:

“(b) the following factors may be considered by the court as reasons to impose an extended term sentence under Section 5— 8 — 2 upon any offender who was at least 17 years old on the date the crime was committed:
(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts.” Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(1).

In his argument in favor of vacating the extended-term sentence and his request for a resentencing hearing, defendant contends that the prior convictions enhanced the charge against him from a misdemeanor to a Class 3 felony. He argues that since the prior convictions are a factor inherent in the Class 3 felony of which he is convicted, the trial court erred in its reliance on those same convictions as an aggravating factor which justified the imposition of an enhanced sentence. Defendant cites People v. Hobbs (1981), 86 Ill. 2d 242, 246, 427 N.E.2d 558, in which the supreme court held that it was impermissible double enhancement for the trial court to consider a prior theft conviction to enhance the offense from a misdemeanor to a felony and to consider the same prior theft conviction as an aggravating factor to impose an extended-term sentence. The Hobbs court remanded the case for resentencing. Here the defendant argues double enhancement which violates statutory sentencing standards.

Similarly, defendant argues, the appellate court has held that the trial court committed error when a felony conviction for robbery used to enhance the pending unlawful use of a weapon charge from misdemeanor to felony was also the conviction considered by the court to impose an enhanced sentence. People v. Gresham (1982), 104 Ill. App. 3d 81, 88-89, 432 N.E.2d 654.

The State contends, however, that at the sentencing hearing, in response to defendant’s double enhancement argument, the assistant State’s Attorney argued to the court that the defense was incorrect in its assertion that the.charge against defendant relied on all prior convictions of defendant since only one conviction was necessary to elevate the crime from misdemeanor to felony and there were numerous other convictions on which the court could rely to enhance the penalty to an extended term.

At the sentencing hearing, the State argued that in 1974 defendant was convicted of battery and received two years’ probation. In 1977 he was convicted of robbery and sentenced to one to three years’ incarceration. In February 1977, he was convicted of armed robbery and sentenced to four years’ incarceration. He was paroled in 1979, violated parole and returned to Pontiac, and later released in April 1980. In January 1981, defendant was convicted of robbery and sentenced to four years, and in June 1983, he was convicted of robbery and sentenced to four years’ incarceration. Of these, the 1974 and 1983 convictions were not included in the stipulation at the close of State’s case in chief.

At sentencing the court addressed the following remarks to the defendant:

“You in the past have indicated your ability not to comply with the law. You on this occasion had a weapon. I don’t own a gun, you have no business with a weapon since you have the prior convictions. Under all the attendant circumstances, I would sentence you to an extended term. I would hereby sentence you to a term of eight years in the Illinois Department of Corrections. I would enter judgment on the finding and on the sentence.”

The State argues here that the Hobbs and Gresham cases are distinguishable from the case before us because in each of those cited cases the crime was enhanced by the same prior conviction as was considered in aggravation to impose an enhanced sentence. The State cites People v. Clodfelder (1988), 172 Ill. App. 3d 1030, 1036, 527 N.E.2d 632, where the defendant’s crime was enhanced to a Class 3 felony and he was sentenced to an extended term, both enhancements based on prior convictions. There the defendant urged the reviewing court to find error, contending the court considered a prior conviction to both enhance the offense to a more serious crime and to justify the imposition of a extended term sentence. The reviewing court found this argument to be without merit, commenting that the defendant had numerous prior convictions but only one of those convictions was necessary to constitute an element of the felony of which he was convicted. Clodfelder, 172 Ill. App. 3d at 1036.

The Clodfelder court further adds, “[T]he record does not indicate that felony conviction had any substantial basis [in] the determination to impose a seven-year sentence upon [defendant].” (Clodfelder, 172 Ill. App. 3d at 1036.) However, the facts recited in the opinion were that the defendant’s vehicle was stopped for a license plate violation, that a rifle was found directly behind the driver’s seat, that defendant was operating the vehicle and that defendant had numerous prior felony convictions. We can see no other possible rationale except prior convictions for the imposition of an extended-term sentence under the facts of that case. The seven-year sentence was within the 5-to 10-year enhanced sentencing range and whether this sentence does or does not indicate substantial reliance on prior felony convictions is of no consequence. The court found no error in sentencing.

Only the Clodfelder case concerns a conviction under section 24— 1.1 for the unlawful use of a weapon by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1) and the imposition of an extended-term sentence based on a prior conviction (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5— 3.2(b)(1)). We note that any conviction under section 24 — 1.1 is a felony.

In reply defendant cites People v. Hurd (1989), 190 Ill. App. 3d 800, 546 N.E.2d 1096, and People v. Spearman (1982), 108 Ill. App. 3d 237, 438 N.E.2d 1329, as authority for his argument that where the underlying offense is enhanced to a felony because of prior conviction, but the conduct itself constitutes only a misdemeanor, then no extended-term sentence may be imposed. (Hurd, 190 Ill. App. 3d at 803; see also Hobbs, 86 Ill. 2d at 246.) Both Hurd and Spearman are retail theft cases, Spearman being charged with the theft of steaks valued at $14.13 and Hurd with unlawful possession of a hypodermic needle, value less than $150. We find a substantial distinction between the crime in those cases and the conduct of the defendant in this case.

We also find substantial factual differences in the present case when compared to Hobbs (86 Ill. 2d 242). The facts in the Hobbs case are as follows: in September 1979, defendant stole five bottles of whiskey valued under $150 and was charged with misdemeanor retail theft. His record included an April 1978 conviction for misdemeanor theft and an October 1978 conviction for felony theft. Count I of the information alleged the prior misdemeanor theft conviction, and count II of the information alleged the prior felony theft conviction. The trial court took judicial notice of both convictions, but the jury was informed only of the felony theft conviction. Defendant was convicted of the enhanced crime of felony retail theft and thereafter sentenced to an extended-term sentence of six years based on the court’s consideration of the prior felony theft conviction.

The supreme court vacated the extended-term sentence and remanded for resentencing. The court held that the logical interpretation of the language of section 5 — 5—3.2(b) indicates an intent to severely punish a recidivist defendant convicted of separate felonies within 10 years where the latest offense consisted of conduct which itself constituted a felony. (Hobbs, 86 Ill. 2d at 246.) The court reasoned that since the 1979 conduct was not itself a felony, it did not appear to fit within the legislative intent of the statutory extended-term sentencing language “[wjhen a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years.” Hobbs, 86 Ill. 2d at 245.

In contrast to the Hobbs case, where the defendant was charged with retail theft of goods valued at less than $150, and in contrast to the Clodfelder case, where the defendant’s conviction for unlawful use of weapons was based on the fact that he had a rifle behind the driver’s seat of his vehicle, here the defendant when arrested was firing a weapon in a public area of his apartment building and was a danger to other persons in the area. His prior convictions included armed robbery. Clearly the use of weapons was repeat conduct for this defendant.

The prior convictions relied on to establish that the defendant was a felon who could be charged under section 24 — 1.1 were a robbery conviction on February 7, 1978, an armed robbery conviction on February 4, 1977, and a robbery conviction on January 7, 1981. At the sentencing hearing the State argued two additional prior convictions in support of its argument for an extended sentence, i.e., a 1974 battery conviction and a 1983 robbery conviction. The extended sentencing range was 5 to 10 years. The court sentenced defendant to an eight-year term, based on prior convictions arising out of different acts than the prior convictions alleged and proved to establish defendant as a felon under section 24 — 1.1. We find no error in sentencing nor do we find any impermissible double enhancement on the record before us.

For all of the foregoing reasons, we affirm the judgment and sentence of the trial court.

Affirmed.

EGAN and RAKOWSKI, JJ., concur.