text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEWAYNE TUCKER et al., Defendants-Appellants.
    First District (6th Division)
    Nos. 1—87—1377, 1—87—1388 cons.
    Opinion filed July 21, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Ellen Fishbein and Hugh Stevens, Assistant Public Defenders, of counsel), for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Christine C. Perille, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE QUINLAN

delivered the opinion of the court:

The defendants, DeWayne Tucker and Marvin Ester, were convicted in a jury trial in the circuit court of Cook County for possession of a stolen motor vehicle and burglary. Each defendant was sentenced to a three-year term of incarceration in the Illinois Department of Corrections. Defendants have now appealed their convictions. We affirm.

During the voir dire proceedings, immediately prior to the beginning of the defendants’ trial, the trial judge made certain remarks to the prospective jurors concerning the burden of proof in the case. The court specifically noted that the State had the burden of proof, that the State was required to prove every material allegation of the charges beyond a reasonable doubt, that the defendants “need not prove anything” at trial, and that the defendants were “cloaked with the presumption of innocence,” which the court said meant that the defendants had a “slight advantage” at the beginning of the case. After the trial judge had made these general remarks, he then asked the jurors individual questions about whether any of them had ever been a victim of a crime. As a result of this inquiry, the judge learned that one of the prospective jurors, Richard Kaltoft, had been the victim of an automobile crime where his car was broken into and certain automobile parts were taken. The judge told Mr. Kaltoft that the facts of the present case were similar to the incident he had experienced and then asked Mr. Kaltoft a number of questions to ascertain if, in spite of this similarity, Mr. Kaltoft could be fair and impartial to the defendants. Mr. Kaltoft answered that he would be fair, and, following the inquiry, Mr. Kaltoft was picked as a juror in the present case. Defense counsel did not object to the remarks of the trial judge or to the selection of Mr. Kaltoft as a juror.

Once the jury was selected, opening statements were then made, and following the opening statements of the parties, the State presented its first witness, Kristen Towner. Ms. Towner testified that, in the morning of July 28, 1986, her sister and brother-in-law, Jane and William Watkins, from Louisiana, arrived at her home at 5436 South Harper in Chicago, Illinois. The Watkins arrived at Towner’s home in a green Buick Park Avenue automobile, which had Louisiana license plates. Ms. Towner testified that this was the same car that the Watkins had when she had visited them in Louisiana several months earlier. Ms. Towner also stated that she saw the Watkins’ car on July 28, 1986, between five and six o’clock in the evening, and did not observe any damage to the vehicle at that time. She said that she and the Watkins then went out that evening, and, when they returned at approximately 10 o’clock, she again saw the car, still parked in the same spot, and did not notice any damage to the car. The next morning, Ms. Towner testified, the car was gone from that parking spot, and she did not see the car again until a few days later. When she saw the car at that time, she testified that her brother-in-law was again in possession of the automobile, but she noticed that the dashboard of the car was damaged and the “whole drive shaft on the inside of the car had been broken away.”

The State next presented the testimony of Eddie Harris, an off-duty police officer. Harris stated that at approximately 11:45 p.m. on July 29, 1986, he was in a building in the 4900 block of South Champlain in Chicago. He said he looked out a window in the direction of a vacant lot below and saw a car pull into the lot. He stated that four black men were in the car and that the two men in the back seat exited the car and walked away, down an adjacent alley. Harris said he then saw the driver, whom he identified in court as the defendant Tucker, and the front seat passenger, whom he also identified in court as the defendant Ester, exit the car. Just after Tucker got out of the car, however, he suddenly got back in the car, and lay down on the front seat, where Harris saw him tamper with something under the dashboard of the car. Harris then called the police and reported the incident. Harris returned to the window and saw Tucker in what appeared to be a stooped-down position, doing something to one of the wheels of the car, while Ester stood nearby, looking back and forth. Harris called the police a second time, and shortly thereafter, the police arrived on the scene. Harris stated that once the police arrived, Tucker jumped up, ran, and then suddenly stopped and fell to the ground, at which point Harris saw the police take him into custody. At the same time, Ester had run down the alley and two officers had chased after him, Harris said.

Officer Hanserd, one of the officers who responded to Harris’ call, testified next for the State. Officer Hanserd stated that he and two other officers, Officers Kampenga and Skayhill, responded to the call. When the officers arrived on the scene, he said, Tucker was crouched near the wheel of the car, about 25 feet from him. Tucker looked towards the officers, jumped up, and then ran towards them, threw his hands up, stopped and said, “[Ojkay, you got me.” Officer Hanserd said he then arrested Tucker. He also stated that Officers Kampenga and Skayhill had followed Ester, who had run away, and that they returned shortly thereafter with Ester in handcuffs. Officer Hanserd described the vehicle at the scene as a four-door Buick Park Avenue automobile, Louisiana license plate number 2801873. On examination of the automobile, Hanserd discovered that the trunk lock had been knocked out and was lying on the ground, that the dashboard was damaged, that the steering column had been peeled or stripped, allowing the car to be started without a key, that the radio was missing, and that the lug nuts on the tires were loose. After the officers had arrested the defendants, Hanserd said, they took the defendants to the police station.

Next, the State presented Officer Kampenga’s testimony. Kampenga testified that when he caught Ester, he searched him and found a “T-bar,” which was a tool used to pry off spoked hubcaps. Officer Kampenga said he also noticed the same damage to the car as had Officer Hanserd, but, in addition, he also noticed that the glove compartment lock had been pried open.

Officer Kampenga further stated that after the defendants had been arrested, he checked with the police dispatcher by radio to determine if the vehicle had been reported stolen and was told that the vehicle had been reported as stolen. He obtained the name and phone number of the individual who had reported it stolen from the dispatcher and, subsequently, called that number and spoke to a person on the telephone, who identified himself to Kampenga as William Watkins. He further testified that a short time later a man, who said he was William Watkins, came down to the police station and showed Officer Kampenga his Louisiana driver’s license. This person who identified himself as William Watkins, Kampenga stated, then inspected the car and signed for it, and the car was released to him.

Additionally, in his testimony, Officer Kampenga related that he had spoken to Tucker at the police station and asked him what he had been doing at the scene, and that Tucker had told him that he was there only to steal the tires from the car. Officer Kampenga further testified that a jack was found at the scene on the ground near the front of the car when the defendants were arrested.

At the conclusion of this evidence, the State rested its case. The defense did not present any evidence and, thereafter, the jury found both defendants guilty on the charges of possession of a stolen motor vehicle and burglary. As stated earlier, the trial judge sentenced each defendant to a term of three years’ incarceration in the Illinois Department of Corrections.

Defendants raise seven issues on review: (1) whether the remarks of the trial judge during voir dire deprived the defendants of a fair trial; (2) whether the State improperly relied on inadmissible hearsay evidence to establish the ownership of the vehicle for the crime of burglary and to establish that the vehicle was stolen for the purpose of the crime of possession of a stolen motor vehicle; (3) whether the evidence established that the defendants were guilty of burglary beyond a reasonable doubt; (4) whether the evidence demonstrated that the defendant Ester was guilty of possession of a stolen motor vehicle beyond a reasonable doubt; (5) whether the statute proscribing possession of a stolen motor vehicle (Ill. Rev. Stat. 1985, ch. 95½, par. 4 — 103(b)) is unconstitutional; (6) whether the trial court erred when it refused to tender defendant’s instruction on the offense of criminal trespass to property; and (7) whether the trial court erred when it gave only one set of jury instructions for both defendants.

The defendants argue that the trial court committed reversible error when it “undercut” the State’s burden of proof in the case through its comments during voir dire that the defendant begins the case with a slight advantage. The defendants assert that the trial court further erred during voir dire when, in response to the prospective juror’s statements that he had been the victim of a burglary involving a theft of auto parts and vandalism, the court said that the facts of this case were similar when, in fact, the defendants claim, the facts were dissimilar.

Conversely, the State argues that these matters were waived by the defendants because they did not object to the remarks at trial and did not raise them in a post-trial motion. Moreover, the State argues, even if there were no waiver, the statements when viewed in the context of all of the trial judge’s remarks were proper. The State asserts that the trial court’s statements regarding the burden of proof were proper and that, in any event, the instructions at the close of trial accurately set forth the burden of proof. In addition, the State contends, the facts of this case were actually similar to the particular juror’s own criminal experience, but, even if these remarks were somehow erroneous, the State claims that any such error was harmless, since the defendants did not, and cannot, show any prejudice from these remarks.

In People v. Zehr, our supreme court ruled that it is essential for jurors in a criminal case to know that a defendant is presumed innocent until proven guilty, that the defendant is not required to present evidence in his own behalf, and that he must be proved guilty beyond a reasonable doubt. (People v. Zehr (1984), 103 Ill. 2d 472, 477-78, 469 N.E.2d 1062, 1064.) It is accordingly proper for a trial judge to cover this subject matter in voir dire, and there is no set procedure that trial judges must follow in doing so. (See People v. Emerson (1987), 122 Ill. 2d 411, 426-27, 522 N.E.2d 1109, 1114; Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062.) Additionally, to preserve an issue alleging error in such a procedure for review, a party must raise an objection at trial and must also specify the objection in a •written post-trial motion. People v. Enoch (1988), 122 Ill. 2d 176, 187-88, 522 N.E.2d 1124, 1129-30.

We find the State’s contention persuasive. Defense counsel made no objection to any of these remarks during voir dire, nor was there any mention of this matter in the defendants’ post-trial motion. Hence, the defendants did waive this issue for purposes of review here. Nevertheless, if defendants had not waived this issue, no reversible error occurred because the defendants have made no showing of any resulting prejudice from the remarks of the court. Even though we find some of the trial judge’s remarks improper, in particular, the court’s comment that the defendants had a “slight advantage,” we find this error to be harmless, inasmuch as the defendants have not suggested or demonstrated how they were prejudiced by this remark, other than the bald claim that they were. In fact, it actually appears that if the statements concerning the burden of proof had any effect at all, they were of benefit to defendants’ position. Also, the court’s statements to the prospective juror concerning the juror’s experience regarding a similar crime were not erroneous, for we find that the juror’s experience and the instant case were factually similar. In any event, the trial judge here asked the juror a number of specific questions about whether he could be fair and impartial, and the juror responded that he could, and the defendants made no objection to this procedure. Thus, we conclude that, under these circumstances, none of the court’s remarks here amounted to reversible error.

The defendants next raise, as their second issue, the contention that the State failed to prove ownership, which, they assert, is an element of the crime of burglary and, also, that the State failed to prove that the vehicle was stolen, which is an element of the crime of possession of a stolen motor vehicle. The only evidence to support either of these requirements, the defendants assert, was the inadmissible hearsay testimony of Officer Kampenga. The defendants argue that the officer improperly testified that he requested that the police computer check the status of the vehicle at the scene, that the dispatcher responded that the vehicle had been stolen, and that the dispatcher gave him the phone number of the person who had reported the car as stolen. They also assert that the court further erred when it allowed the officer to also state that he had contacted the person identified as the owner of the vehicle, and that person had come into the station, where he had identified himself to Kampenga as William Watkins, had shown him a Louisiana driver’s license, and had signed for the return of the car.

The issue of the admissibility of this evidence, the State argues, was waived because, although the defendants’ post-trial motion stated that the ownership element was not properly proven, there was no mention of the admission of hearsay evidence as the basis for this contention. Alternatively, the State asserts, if waiver did not occur, the remainder of the evidence, even without this alleged hearsay, established Watkins’ ownership of the vehicle and that the vehicle had been stolen from him. Finally, the State contends that any error in this regard was again harmless error.

“A person commits burglary when without authority he knowingly enters or without authority remains within a *** motor vehicle *** with intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1.) In the trial of a defendant charged with burglary, the State need not prove specific ownership of the property; ownership is no longer a required element of the crime of burglary. (People v. Rothermel (1982), 88 Ill. 2d 541, 544-47, 431 N.E.2d 378, 380-81.) Rather, the State need only establish that someone other than the defendant possessed or held an interest in the property. (Rothermel, 88 Ill. 2d at 546, 431 N.E.2d at 380-81.) The proof necessary to show that someone other than the defendant possessed the property is sufficient if it allows the defendant to prepare his defense, protects the defendant from a second prosecution for the same offense, and establishes that someone other than the defendant has a superior interest in the property. See Rothermel, 88 Ill. 2d at 546, 431 N.E.2d at 380-81.

Similarly, a person commits the crime of possession of a stolen motor vehicle when that person, who is not entitled to the possession of a vehicle, receives or possesses that vehicle “knowing it to have been stolen or converted.” (Ill. Rev. Stat. 1987, ch. 95½, par. 4 — 103.) Thus, the crimes of burglary and possession of a stolen motor vehicle both require only a showing that someone other than the defendant had a superior interest in the property. This essential requirement may be proven by circumstantial evidence and the reasonable inferences therefrom. See People v. Span (1987), 156 Ill. App. 3d 1046; 1050-52, 509 N.E.2d 1057, 1059-60; see also People v. Harris (1987), 162 Ill. App. 3d 618, 622, 515 N.E.2d 1272, 1274.

Initially, we agree with the defendants and find that a portion of Officer Kampenga’s testimony was improper hearsay evidence, viz., that portion concerning the dispatcher’s response to Officer Kampenga’s request, which, Kampenga said, gave him the name and phone number of the person who had reported the car stolen, i.e., the “owner.” (See People v. White (1985), 134 Ill. App. 3d 262, 282, 479 N.E.2d 1121, 1134; People v. Hope (1979), 69 Ill. App. 3d 375, 380, 387 N.E.2d 795, 799.) Nonetheless, we also find that when the evidence here is viewed in its entirety, even without the benefit of this improper testimony, there was sufficient evidence presented to establish and prove that someone other than the defendants, namely, William Watkins, had a superior possessory interest in the vehicle.

The properly presented evidence, which included Ms. Towner’s testimony and Officer Kampenga’s properly admitted testimony, established the make, model and color of the vehicle, that the vehicle had Louisiana license plates, that a certain individual, Watkins, had possession of that previously undamaged car the day before the arrest, that Watkins came to the station after the arrest, showed Officer Kampenga his Louisiana driver’s license, inspected the car, signed for it, and obtained the release of the car from the police. The car was then seen in Watkins’ possession immediately thereafter, in a damaged condition. This evidence was, we find, clearly sufficient to support defendants’ conviction for burglary and possession of a stolen motor vehicle. Furthermore, the properly presented evidence was strong enough that no reasonable argument can be made that if the improper evidence had not been admitted, the defendants would have been acquitted. (See People v. White (1985), 134 Ill. App. 3d 262, 283, 479 N.E.2d 1121, 1135.) Thus, we conclude that no reversible error occurred.

The defendants next argue that the evidence was still insufficient to establish guilt on the burglary charge because there was no evidence, either direct or circumstantial, represented at trial to show that the defendants had formed an intent to commit a theft at the time of the unauthorized entry of the vehicle. The defendants contend that there was no evidence concerning how or why they entered the car, and that none of the reportedly missing items were found on the defendants or at the scene. In addition, defendants claim, Ester’s mere presence and flight from the scene were not enough to prove his guilt beyond a reasonable doubt.

The State, however, argues that the evidence here was sufficient to convict both defendants. The direct and circumstantial evidence, as well as the inferences from that evidence, the State asserts, properly supported the jury’s verdict.

As we noted earlier, a defendant may be convicted of burglary when the evidence shows that he knowingly and without authority enters a motor vehicle with the intent to steal the vehicle, and this may be proven by circumstantial evidence and the inferences that may be drawn from that evidence. (Ill. Rev. Stat. 1987, ch. 95½, par. 4 — 103; People v. Steppan (1985), 105 Ill. 2d 310, 317, 473 N.E.2d 1300, 1304; People v. O’Malley (1986), 143 Ill. App. 3d 474, 477, 493 N.E.2d 82, 84; In re Stokes (1982), 108 Ill. App. 3d 637, 641, 439 N.E.2d 514, 517.) Once such evidence has been presented, it is for the jury to weigh the evidence, judge the credibility of the evidence, and determine the facts. (People v. Adams (1984), 129 Ill. App. 3d 202, 205, 472 N.E.2d 135, 138.) Additionally, the jury’s verdict will not be overturned on review unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt. People v. Adams (1984), 129 Ill. App. 3d 202, 206, 472 N.E.2d 135, 138.

Here, we agree with the State that there was sufficient evidence, both direct and circumstantial, to convict both defendants of burglary. The State’s witness, Eddie Harris, an off-duty police officer, testified that both defendants drove up in the car and parked it in a vacant lot, that two other male passengers got out of the car, and that, thereafter, both defendants got out themselves. Harris said that immediately thereafter he saw Tucker get back in, lie down on the seat, and tamper with something under the dashboard. Tucker than got out of the car again, stooped down by the tire of the car and tampered with it, while Ester kept a lookout. As soon as the defendants saw the police, the testimony at trial established that they fled. Ester ran away from the police, but Tucker ran towards them, and as the officers who arrived at the scene testified, Tucker stopped suddenly and said, “[0]kay, you got me.” Ester, when caught, had in his possession a tool commonly used for prying off spoked wheels. Finally, when the police examined the car which Tucker and Ester had driven to the area, they discovered that the vehicle’s steering column was peeled, the dashboard was damaged, the radio was missing, the glove compartment lock was damaged, and the trunk lock was popped out and on the ground. We find this evidence more than sufficient for the jury to have found the defendants guilty of the crimes charged beyond a reasonable doubt.

Nonetheless, the defendant Ester further contends that there was no direct proof presented at trial that he was in possession of the stolen car or that he knew it was stolen. Specifically, Ester asserts that there was no direct evidence that he had control of the car, drove it, or was observed stripping it. Hence, he claims, a reasonable conclusion here could have been that he had merely entered the car with the consent of Tucker, not knowing that it was stolen, and, consequently, he argues, his conviction should be overturned.

On the other hand, the State asserts that the evidence was more than sufficient to convict Ester, and that the use of circumstantial evidence was entirely proper. The State notes that the jury was to weigh the credibility of the evidence, and that the evidence here showed that Ester was a front seat passenger in the car with Tucker, that he acted as a lookout, that he took off when the police arrived, and, finally, that he had a tool for removing spoked wheels when he was caught. Also, the State observes, Ester was in joint possession of the stolen vehicle with Tucker at the time of his arrest.

As stated earlier, for the State to prove guilt on a charge of possession of a stolen motor vehicle, the State must only prove, beyond a reasonable doubt, that the defendant was in possession of a motor vehicle, that the vehicle was stolen, and that the defendant knew the vehicle was stolen. These facts, however, all may be shown by circumstantial evidence, or inferred from the surrounding facts and circumstances. See People v. Mijoskov (1986), 140 Ill. App. 3d 473, 477, 488 N.E.2d 1374, 1377; see also Ill. Rev. Stat. 1987, ch. 95½, par. 4 — 103(a)(1).

A defendant who is a passenger in a stolen motor vehicle may be found guilty of possession of a stolen motor vehicle, where the circumstantial evidence shows that a reasonable person would have believed that the vehicle was stolen. (See People v. Span (1987), 156 Ill. App. 3d 1046, 1050, 509 N.E.2d 1057, 1059.) Furthermore, evidence of flight may be considered to infer the defendant’s knowledge that the vehicle was stolen. (See Span, 156 Ill. App. 3d at 1050, 509 N.E.2d at 1060.) In addition, as we have stated above, a reviewing court will not overturn a jury verdict unless the evidence is so improbable as to create a reasonable doubt as to defendant’s guilt. Span, 156 Ill. App. 3d at 1050, 509 N.E.2d at 1060.

Here, the evidence presented showed that Ester was guilty of possession of a stolen motor vehicle beyond a reasonable doubt. Ester was a passenger here in the Buick Park Avenue automobile with Louisiana license plates. The glove compartment lock of the vehicle here was damaged and had been pried open, the trunk lock was popped and on the ground, and the steering column had been peeled away. Ester, moreover, stood by the car and kept a lookout while Tucker tampered under the dashboard, and also stood lookout while Tucker tampered with the tire of the car, apparently, as Tucker later told police, as he tried to steal it. Ester stood watch the entire time until he saw the police, at which point he then fled from the scene. (See Span, 156 Ill. App. 3d at 1050, 509 N.E.2d at 1059-60.) Furthermore, when Ester was apprehended, he had a tool in his possession that is commonly used to remove spoked wheels from automobiles. All of these facts and circumstances, we believe, were sufficient for the jury to find the defendant Ester guilty of the offense of possession of a stolen motor vehicle beyond a reasonable doubt.

Next, the defendants claim that section 4 — 103(b) of the Illinois Vehicle Code is unconstitutional (see Ill. Rev. Stat. 1987, ch. 95½, par. 4 — 103(b)), relying upon the first district opinion in People v. Bryant (1988), 165 Ill. App. 3d 996, 520 N.E.2d 890. However, after oral arguments were heard in this case, this decision was reversed. (People v. Bryant (1989), 128 Ill. 2d 448; see Ill. Rev. Stat. 1987, ch. 95½, par. 4 — 103(b).) The Illinois Supreme Court reversed the appellate court’s decision in Bryant, specifically holding that section 4 — 103(b) is constitutional. (Bryant (1989), 128 Ill. 2d 448; see Ill. Rev. Stat. 1987, ch. 95½, par. 4 — 103(b).) We are bound to follow that ruling, and, thus, we will not consider defendants’ argument further. See Clark Oil & Refining Corp. v. Johnson (1987), 154 Ill. App. 3d 773, 506 N.E.2d 1362.

The defendants next argue that they were entitled to an instruction on a lesser offense of criminal trespass to property because such an instruction would have allowed the jury to find the defendants guilty of the lesser offense of criminal trespass and permitted them to acquit the defendants of the more serious offense of burglary.

The State asserts, again, that this issue was waived because there is nothing in the record to show that such an instruction was ever properly tendered by the defendants, or that there was any objection when the trial judge refused to include such an instruction. Nevertheless, even if there was no waiver, the State still contends that there was no error, because if there was error, any such error was harmless, inasmuch as the evidence here was clearly sufficient to convict the defendants on the burglary charge, and the jury could not, in any event, have acquitted the defendants on that charge.

Generally, a defendant is entitled to an instruction on an offense of a less serious nature than the one with which he is charged, if the elements of the crime charged can constitute the lesser crime. (People v. Velarde (1985), 137 Ill. App. 3d 492, 484 N.E.2d 939.) However, if the evidence is so overwhelming that no rational jury could conclude that the lesser offense was proper, then refusal to give the instruction on the less serious offense is not tantamount to reversible error. (People v. Fonville (1987), 158 Ill. App. 3d 676, 511 N.E.2d 1255; People v. Velarde (1985), 137 Ill. App. 3d 492, 484 N.E.2d 939; see also People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413.) Failure to object to a jury instruction ruling at the jury conference constitutes waiver. People v. Travis (1988), 170 Ill. App. 3d 873, 889, 525 N.E.2d 1137, 1146.

The record here supports the State’s assertion that this issue was waived since there is nothing in the record to show that the defense tendered an instruction to the court or that the defense objected to the court’s refusal to give such an instruction. The only mention that any instruction was even presented, other than in defendants’ post-trial motion, is in a brief oral reference to such an instruction by the trial judge after the agreed-upon instructions had been given to the jury, in which the judge merely noted that an instruction had been requested by the defense and denied by the court during the instruction conference. (The instruction conference was not reported in the record.) Even if this issue was not waived, reversible error did not occur, because we agree with the State’s argument and find that the evidence was more than sufficient for the jury to find the defendants guilty on the burglary charge and that there was no evidence for a rational jury to find defendants guilty of the lesser offense.

The defendants’ final claim is that the trial court erred when it gave one set of instructions for both defendants, because, the defendants claim, the procedure was misleading and confusing. The State again argues that this issue was also waived, and, if it was not waived, any error that did occur was cured by the clear wording of the instructions themselves, the trial judge’s clear admonitions to the jury that each defendant was to be considered separately, and the use of separate verdict forms for each defendant.

We find, as the State claims, that this issue was waived. (See Enoch, 122 Ill. 2d at 187-88, 522 N.E.2d at 1129-30.) The record does not indicate any objection by defense counsel to this procedure either at trial or in the post-trial motion. But, even if there had not been a waiver, any error here would have been cured by the trial judge’s careful admonitions to the jury that each defendant was to be considered separately, and by the use of separate verdict forms for each defendant, Hence, we do not find, under these circumstances, that the trial court committed any reversible error by its use of a procedure where one set of instructions was given for both defendants.

Accordingly, for all of the reasons set forth above, the judgment of the circuit court is affirmed.

Judgment affirmed.

EGAN, P.J., and LaPORTA, J., concur.


source: Caselaw Access Project

author: JUSTICE QUINLAN

license: Public Domain

text:
    CHICAGO CITY BANK AND TRUST COMPANY, as Successor Trustee, Plaintiff-Appellee, v. GERTRUDE PICK LESMAN et al., Defendants-Appellants.
    First District (6th Division)
    No. 1—88—0220
    Opinion filed July 21, 1989.
    Rehearing denied August 17, 1989.

      John Albert Pick, of Lake Worth, Florida, appellant pro se.

    Baker & McKenzie, of Chicago (Michael J. Garvey, of counsel), for appellee.
   JUSTICE QUINLAN

delivered the opinion of the court:

The plaintiff, Chicago City Bank and Trust Company (the Bank), aeting as the trustee for a trust established by Albert Pick, Sr., filed a complaint in the chancery division of the circuit court of Cook County, for instructions concerning the identification of remainder beneficiaries and the distribution of the remaining funds in the trust. Thereafter, one of the remainder beneficiaries, John Albert Pick (John A.) filed a pro se counterclaim against the Bank in which he alleged that the Bank had breached its fiduciary duties to him and the other beneficiaries, and, based on the allegations, he requested an accounting. The Bank moved to dismiss the counterclaim and requested fees and costs. Subsequently, the trial court dismissed the counterclaim and awarded attorney fees and costs to the Bank, to be paid out of the trust. John A. appeals the dismissal of his counterclaim and the award of fees and costs. We affirm.

In 1946, Albert Pick, Sr., set up a $25,000 trust for his son, John L. Pick (John L.), who was to receive $100 a month from the trust for the rest of his life. John L., the income beneficiary of the trust, died intestate in 1983. Apparently, the terms of the trust were somewhat ambiguous concerning the designation of the remainder beneficiaries and the distribution of the remainder of the trust, and so, to avoid the costs of litigation, the Bank sought an agreed settlement from those who apparently would be the remainder beneficiaries about the distribution of the remaining funds in the trust, which was about $30,000.

John A., John L.’s son, identified by the Bank as a remainder beneficiary, refused to agree to this settlement until a full accounting was proffered by the trustee for the entire 34-year history of the trust. John A. asserted that there was some type of fraud or mismanagement and collusion in the administration of the trust because only $30,000 remained. The Bank refused John A.’s demand for an accounting, and when John A. still refused to agree to the proposed distribution, the Bank informed him that the matter would have to be resolved in court.

The Bank then filed the present complaint for instructions, asking the court to interpret the ambiguous terms of the trust and to determine who the remainder beneficiaries were and what the proper distribution of the remaining funds in the trust should be. John A., as noted, responded by filing a pro se counterclaim, and then an amended counterclaim, against the Bank which basically alleged malicious and fraudulent breach of fiduciary duty. John A. also requested a full accounting of the trust and damages in excess of $5 million for economic loss and emotional distress, as well as punitive damages. In addition to these claims, John A. also filed a third-party complaint against Metzel, the conservator, and others. This third-party complaint against the conservator and others was later transferred to the probate division on April 30,1987.

The Bank filed a section 2 — 611 motion for sanctions based on John A.’s counterclaim. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) On December 15, 1987, a pretrial conference was held on these pending matters. This pretrial conference was not transcribed, but, during oral argument before this court, the parties explained that the Bank made an oral section 2 — 615 motion to dismiss the counterclaim (see Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), and, specifically, John A. stated that he had made no objection to this motion then, and that he was, in fact, in favor of the entry of a final order in the matter at that time because, he said, he wanted to take the matter up in a different court, i.e., the appellate court.

As a result of the pretrial conference, an order was entered which directed the distribution of the remainder of the trust in the amount of one-third to John L.’s widow, and the remaining two-thirds to the issue of John L., with John A. designated as a lawful issue; identified the beneficiaries, including John A. as a beneficiary; ordered the Bank to submit a final accounting for court approval at the conclusion of the matter of all administration expenses incurred in connection with the trust and the suit, including attorney fees and costs, and that those costs were to be paid from the trust estate prior to distribution; dismissed John A.’s counterclaim with prejudice and denied his request for an accounting based on the representations of the parties that the Bank had regularly provided accountings to the conservator of the trust during John L.’s lifetime; and provided that the order was final and appealable and disposed of all of the pending matters in the litigation.

On January 11, 1988, John A. filed a notice of appeal as to that portion of the December 15, 1987,- order which granted the payment of attorney fees and dismissed his counterclaim with prejudice. John A. also appealed from the trial court’s order of April 30, 1987, which transferred his third-party complaint from the chancery division to the probate division.

Three basic issues are raised on appeal: (1) whether the trial court properly dismissed John A.’s counterclaim; (2) whether the trial court properly awarded fees and costs; and (3) whether the trial court erred when it transferred his third-party complaint to the probate division.

John A. first argues that the trial court improperly dismissed his counterclaim. The counterclaim essentially is based upon a claim of breach of fiduciary duty and a claim for an accounting. The oral motion to dismiss was made pursuant to section 2 — 615 of the Code of Civil Procedure, and, thus, was premised on the argument that the counterclaim failed to state a cause of action, because either there was no such cause of action or the counterclaim was not supported by proper factual allegations. See Ill. Rev. Stat. 1987, ch. 110, par. 2— 615.

A cause of action for breach of fiduciary duty must set forth allegations, supported by facts, that a fiduciary relationship existed between the parties, that the trustee owed certain, specific duties to the plaintiff, that the trustee breached those duties, and that there were resulting damages. (See McCormick v. McCormick (1983), 118 Ill. App. 3d 455, 463, 455 N.E.2d 103, 110.) Remainder beneficiaries to a trust are “interested persons” who have an interest in maintaining the assets of the estate, and, as such, may institute actions for mismanagement of the trust or may object to a final accounting. (See In re Estate of Proms (1975), 30 Ill. App. 3d 378, 332 N.E.2d 759.) Therefore, on this basis, and for certain limited purposes, a trustee owes duties to the remainder beneficiaries.

The right to demand an accounting is not an absolute right, but is one which may be asserted on equitable principles, and such a claim must include allegations that the circumstances make an accounting necessary and proper, that the party asked for and was denied access to the trust records, or that those records were inadequate, and that the party made a demand for an accounting and that demand was refused. (Tankersley v. Albright (7th Cir. 1975), 514 F.2d 956, 970-71.) There must also be allegations of wrongdoing or impropriety other than the trustee’s failure to voluntarily provide an accounting. (Tankersley, 514 F.2d at 970.) The mere fact that a trust was in existence for a long period of time is not a sufficient basis for a cause of action for an accounting. See Tankersley, 514 F.2d at 970-71 (sparse allegations based on fact that trust was in existence for 40 years are not enough).

John A. argues here that the trial court erred when it dismissed his counterclaim. He claims that as a remainder beneficiary, he has the right to demand an accounting, and that the Bank, when it denied him that right, maliciously breached its fiduciary duty to him. He also claims that the Bank’s refusal to disburse funds to him until after he signed the release, and the Bank’s threat of litigation when he refused to sign the release, constituted improper duress, and was a breach of fiduciary duty. He further asserts that the Bank’s failure to file the instant litigation to identify the remainder beneficiaries for two years was also a breach of its fiduciary duty. John A. additionally contends that the fact that the trust was opened in 1946 with $25,000 and the fact that it is now worth only approximately $30,000 is a basis for a claim of mismanagement which entitles him to a full accounting. He also claims that the trustee’s negligence in ascertaining who the remaindermen were established a breach of fiduciary duty.

Defendant argues that the trial court properly dismissed the counterclaim because there are no facts alleged to support a breach of fiduciary duty and John A.’s counterclaim does not set forth a valid basis for an accounting. The counterclaim is based on mere conclusions, the defendant asserts, and not on specific facts to sufficiently support the cause of action under Illinois law. The defendant asserts that it properly and regularly accounted, as the trial court found, to the conservator, Metzel, during John L.’s lifetime. John A.’s status as a remainder beneficiary does not, the defendant argues, automatically entitle him to an accounting.

Here, John A.’s allegations concerning breach of fiduciary duty and the right to an accounting are not sufficient to support a cause of action. His claim is based in large part upon the Bank’s refusal to voluntarily provide an accounting, which is an insufficient basis for his claim for an accounting, and under the facts alleged, is also an insufficient basis for his claim of a breach of fiduciary duty. The only other fact alleged in support of his claim for breach of fiduciary duty and an accounting is that the Bank paid funds to Metzel and that Metzel was not legally the conservator. However, later, John A. himself relies on and, in fact, concedes that Metzel was the court-appointed conservator in other portions of his counterclaim. His claim that the Bank breached its fiduciary duty by its negligence in ascertaming the names of the remainder beneficiaries simply does not amount, under the allegations, to a breach of any fiduciary duty owed to a remainder beneficiary. Indeed, it seems that certain of these actions that John A. claims amounted to a breach of fiduciary duty were a result of his own demands for an accounting and his refusal to agree to the Bank’s suggested distribution until he received a full accounting. There simply is not a valid basis for a breach of fiduciary duty claim stated here.

John A., furthermore, made no allegations that proper, regular accountings were not made, nor did he allege that he ever asked for and was denied access to the trustee’s records, or that those records were inadequate. Under the McCormick case, such allegations are essential. (See McCormick, 118 Ill. App. 3d 455, 455 N.E.2d 103.) Here, there are simply no allegations as to why an accounting is necessary, other than some vague references to some sort of collusion between the trustee and Metzel, and the suggestion that a $5,000 increase in the corpus of the trust over 34 years is unreasonably small. This simply is not enough to require a complete, independent audit of the entire history of the 34-year old trust, the remainder of which was $30,000. Moreover, although irrelevant to the motion to dismiss, the trial court noted in its order that it found that the trustee had regularly accounted to the conservator during the lifetime of the beneficiary, John L., and this finding was based upon statements made in a letter from the conservator to John A., attached as an exhibit to the counterclaim. Finally, we note that, pursuant to the court’s order, a final accounting, in any event, must be submitted by the trustee and approved by the court, and John A., as a legally designated beneficiary, may properly object to that final accounting, provided he can present a valid and sufficient basis for such an objection. (See Tankersley, 514 F.2d at 970 n.39; In re Estate of Provus, 30 Ill. App. 3d 378, 332 N.E.2d 759.) Therefore, John A.’s claim for an accounting must also fail, as a matter of law.

Plaintiff next contends that the trial court erred when it awarded the Bank fees and costs to be paid out of the trust estate. In its order of December 15, 1987, the trial court awarded the Bank attorney fees and costs, in connection with the suit, to be paid out of the trust estate. The record here is somewhat unclear as to the basis for that award because the Bank made a written section 2 — 611 motion, and the order entered by the court does not definitively state whether fees and costs were awarded pursuant to section 2 — 611 or under the terms of the trust agreement. See Ill. Rev. Stat. 1987, ch. 110, par. 2-611.

Because section 2 — 611 is subject to strict construction and the sanctions imposed can be quite serious, a court will generally require a separate section 2 — 611 hearing be held to give both sides an opportunity to present and respond to the allegations and the possible sanctions. (See generally In re Estate of Wernick (1989), 127 Ill. 2d 61, 535 N.E.2d 876.) There was no such hearing in the trial court below, and neither party on appeal argues that the fees awarded here were based on section 2 — 611. Rather, counsel for the Bank asserted on appeal that the fees award in the December 15, 1987, order was granted solely on the basis of the language of the trust agreement itself. We agree and find that the court’s award of fees in the December 15 order was intended by the court to be made on the basis of the terms of the trust agreement, and also find that this conclusion is supported by the fact that there are no contrary indications in the record.

Additionally, John A. argues that because the Bank brought him into court, the Bank breached its fiduciary duties to him, and that, accordingly, the Bank should not have been awarded fees and costs. On the contrary, the Bank now contends, as noted, that it was properly awarded fees and costs under the terms of the trust agreement.

The trust agreement here clearly states that “[o]ut of the Income derived by the Trustee from the Trust Estate, the Trustee shall first pay all necessary costs and expenses of administering and protecting the Trust.” Such an award is, therefore, proper in this situation on that basis. (See Bartsch v. Gordon N. Plumb, Inc. (1985), 138 Ill. App. 3d 188, 203, 485 N.E.2d 1105, 1117 (award of fees must be based upon contractual or statutory authority).) The award of fees and the amount thereof, in this type of situation, is within the discretion of the trial court, and will not be overturned absent an abuse of that discretion. (See Northern Trust Co. v. Winona Lake School of Theology (1978), 61 Ill. App. 3d 966, 377 N.E.2d 1182.) Although no amount was assigned for any fees here, counsel for the Bank correctly noted that any final amount submitted will be subject to court approval and, hence, will not be arbitrary or unreasonable. John A. has not, therefore, made the required showing that the trial court, in its order of December 15, 1987, abused its discretion.

Finally, John A. asks us to review the trial court’s April 30, 1987, order which transferred his third-party complaint to probate. This is not a proper issue on appeal from the dismissal of the counterclaim, because it is based on an entirely different cause of action and these claims are still pending in the probate court below and, consequently, do not involve a final and appealable order.

Thus, for all of the reasons stated above, the court’s order of December 15, 1987, is affirmed in its entirety.

Order affirmed.

EGAN, P.J., and LaPORTA, J., concur.

         A brief background of the facts surrounding the creation of the trust and the income beneficiary of the trust, John L., is helpful in order to understand the nature of this case. Albert Pick, Sr., of the Pick hotel chain, became estranged from his son, John L., who apparently was constantly in some type of trouble. Despite this falling out, Albert evidently wanted to provide John L. with some income for the rest of John L.’s life, and so, Albert set up a $25,000 trust with Metropolitan Trust Company as the trustee, for the lifetime benefit of John L., and John L. was to receive $100 per month for the rest of his life. In 1948, John L. got into trouble with the law and was charged with armed robbery. Apparently, in connection with the armed robbery charges, later that year John L. was adjudged by a Los Angeles court to be insane and committed to a State hospital. In 1949, John L. escaped from the State hospital.
      When the trustee found out that John L. had been adjudged insane, it stopped payments and informed Albert’s attorney that it would only make the payments to a conservator. Thus, in 1951, Edward Metzel, a colleague of Albert’s attorney, became the conservator. In 1957, Metropolitan resigned as trustee and Chicago City Bank and Trust Company was appointed the new trustee. Throughout his lifetime, John L. had several wives and children, and one of them was a son named John Albert Pick (John A.).

       Although oral motions are not generally favored because of the potential for uncertainty and error resulting in prejudice to the opposing party, as well as the fact that there is no written record for purposes of review, it is clear that there was no prejudice to the plaintiff here. As noted earlier, the pro se plaintiff, during oral argument before this court, explained that he understood that defendant had made an oral motion to dismiss the counterclaim, and that he did not object to this motion. In fact, as noted above, John A. explained that he was in favor of the court’s entry of a final order in the case so that he could present his case to a different court since it appeared to him that he could get no further relief in the court below.

       Indeed, we note that even if John A. had requested a review of the records relating to the trust prior to December 15, 1987, there could have been a problem with the Bank’s release of any documentation to him, because he was not legally designated as a remainder beneficiary until the court’s order of December 15,1987.


text:
    WHITING CORPORATION, Plaintiff-Appellee and Cross-Appellant, v. PROFESSIONAL EMPLOYMENT, INC., Defendant-Appellant and Cross-Appellee.
    First District (6th Division)
    No. 1—88—1002
    Opinion filed July 21, 1989.

      Patrick I. Hartnett and Robert D. Shearer, Jr., both of Chicago, for appellant.
    Winston & Strawn, of Chicago (Thomas J. Frederick and Robert S. Grabemann, of counsel), for appellee.
   JUSTICE QUINLAN

delivered the opinion of the court:

Plaintiff, Whiting Corporation (Whiting), sued the defendant, Professional Employment, Inc. (Professional), for breach of contract and the recovery of a $5,980 fee which plaintiff had paid to defendant for referring an individual to it for employment as an engineer. The employee that defendant had referred to Whiting was later fired, and plaintiff requested its money back in accordance with defendant’s unconditional guarantee. The defendant refused, and after a bench trial, the circuit court of Cook County entered judgment for the plaintiff in the amount of the fee that plaintiff had paid to the defendant, Professional. The trial court, however, denied plaintiff’s request for attorney fees for the allegedly false and baseless pleadings and defense of defendant pursuant to section 2 — 611 of the Code of Civil Procedure. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) Defendant now appeals the court’s judgment which awarded plaintiff $5,980, and plaintiff cross-appeals the court’s denial of attorney fees under section 2 — 611.

In 1986, the plaintiff, Whiting, was interested in hiring a field service engineer, and as a result hired the defendant, a firm that specialized in employee placement, to find a suitable candidate. The defendant referred Russel Vogel to plaintiff as a candidate for the position. Vogel was interviewed by the plaintiff’s director of employee operations, John Fisher, who, although he believed that Vogel was technically qualified for the job, had some reservations about whether Vogel was properly suited for the position. Whiting decided that it needed a trial period in order to appropriately evaluate Vogel for the job. Thus, Whiting inquired about the defendant’s guarantee policy before it hired Vogel, and the defendant told plaintiff it had a 100% unconditional guarantee policy, which plaintiff took to mean a money-back policy. Both plaintiff and defendant thereafter agreed to the terms which provided that, under defendant’s unconditional guarantee, plaintiff had 60 days within which to terminate Vogel’s employment, as long as plaintiff paid the full fee within 10 days of Vogel’s hiring.

On May 19, 1986, plaintiff hired Vogel, and within 10 days, plaintiff paid the defendant the agreed-upon fee of $5,980. A few weeks later, plaintiff determined that Vogel was not suitable for the position, and so, on June 13, 1986, plaintiff fired Vogel. Plaintiff then requested a refund of the $5,980 fee it had paid. As stated above, defendant refused to refund plaintiff’s money, and plaintiff filed this lawsuit to recover the fee, alleging that defendant’s unconditional guarantee entitled plaintiff to repayment of the fee if plaintiff fired Vogel within a 60-day period and plaintiff had paid defendant’s fee within 10 days of Vogel’s hiring. The defendant denied that it had ever told or represented to the plaintiff that the guarantee entitled plaintiff to a refund of its money, and asserted that its unconditional guarantee meant only that it would provide a replacement without any additional cost to plaintiff.

Subsequently, the case proceeded to trial before the court, and the plaintiff presented several witnesses who worked at Whiting to explain the agreement between Whiting and the defendant. The plaintiff presented the testimony of Fred Teggelar, Whiting’s risk manager; John Fisher, the director of employee relations at Whiting; and David Witthrow, a manager at Whiting. Their testimony basically established that Whiting had negotiated the agreement with defendant through John Culkeen, an employee of defendant, and that Culkeen had assured plaintiff that the guarantee was unconditional if Vogel was fired within 60 days and the fee was paid within 10 days of Vogel’s hiring..Whiting’s witnesses testified that they accordingly believed that the defendant’s unconditional guarantee meant that defendant would refund Whiting’s fee if the employee did not work out. However, these witnesses admitted that no one had explicitly told them that “unconditional guarantee” meant a full refund of the fee. On the other hand, Whiting’s witnesses further stated that no one from defendant’s office ever told them, prior to Vogel’s hiring, that “unconditional guarantee” meant only free replacement of the employee.

Whiting’s chief financial officer, Jefferey Kahn, also testified and said that he had specifically discussed the defendant’s unconditional guarantee with John Fisher. Kahn stated that there was no mention of a replacement-only policy in their discussion, and that he was only concerned with whether their money would be refunded if they later fired the employee. In addition, Kahn said that in November 1986, several months after the Vogel incident, he had a conversation with Jim Ford, who worked for defendant. Ford had called Kahn to inquire about Whiting using defendant’s services to fill financial positions at Whiting. Kahn said that he had told Ford at that time that before he would agree to use defendant’s services, he wanted to know what defendant’s guarantee policy was and that Ford then told him that if the employee left within 30 days, the client company would not have to pay, and, if the client paid, the fee would be refunded. Kahn then stated that he asked Ford for a written confirmation of this policy, and Ford sent Kahn defendant’s brochure, which was admitted at trial. That brochure stated that there was a “Full 30 Day Unconditional Guarantee.” Kahn called Ford again and specifically asked him for something in writing to confirm that this guarantee was a refund policy. Ford agreed, but later called Kahn back and told him that his manager would not allow him to do so, and that he, Ford, had misunderstood the policy. Nevertheless, Ford also told Kahn that since most clients did not pay within 30 days, the refund issue really didn’t matter anyway.

Plaintiff presented Ms. Joyce Markmann as a witness. Ms. Markmann worked for the Illinois Department of Labor and was, at the time of her testimony, responsible for the licensing and regulation of employment agencies, but not executive search firms, since they did not need to register with the State. Ms. Markmann testified that she also handled complaints about these agencies and that these complaints often involved “guarantee” types of issues for both agencies and executive search firms. She testified that in the industry, “unconditional guarantee” means that if the employee is fired within 30 days, the agency will refund 100% of the fee.

Ms. Markmann also testified regarding two of defendant’s Illinois Department of Labor applications for registration with the State, which it had filed with the Department in 1979 and 1982. These applications, as required by law, she explained, set forth defendant’s guarantee policy. The guarantee policy, as stated in the 1979 application, was a 30-day guarantee that provided if the employee was terminated within that time, the fee would be refunded within 24 hours. On its 1982 application, she further testified, the defendant’s guarantee policy was described simply as an unconditional guarantee. Markmann also stated that employment agencies that must register with the Department are required to offer a certain minimum amount money-back guarantee.

In its case the defendant presented its president, Douglas Dawson, who testified that the term “unconditional guarantee,” by both his own and the industry definition, meant merely replacement, not refund, and he said that he never had nor would he ever promise a cash refund to plaintiff or anyone else. Dawson also testified that before 1982 the defendant was more of an employment agency and, hence, was required to register with the Department of Labor and only as part of those requirements did it offer a refund guarantee. In addition, the defendant presented Mr. Leslie Vaughn, who was the president of his own executive search firm. Mr. Vaughn testified that in the industry “unconditional guarantee” normally means that if the employee doesn’t last 30 days, the firm will replace the employee free of charge, or will offer a credit towards a future placement. He stated that it is not customary to refund fees. On cross-examination, however, Mr. Vaughn admitted that he had formerly been employed by the defendant and that he had also signed the defendant’s 1982 Department of Labor application for registration in his capacity as the secretary of the defendant’s corporation.

Finally, the defense presented Anderson Richardson, who was the defendant’s engineering department manager at the time of Vogel’s hiring. Richardson testified that John Culkeen had worked in defendant’s engineering department and that Culkeen was the employee who had negotiated the arrangement with plaintiff. Richardson stated that Culkeen came to him for approval of the extended, 60-day guarantee with plaintiff and that he had approved the extension. Richardson stated that “unconditional guarantee” meant replacement, not refund, and that neither he, nor anyone he was aware of, offered plaintiff a cash refund.

After the close of this evidence, the trial court heard closing arguments and found that the express terms of the contract controlled over custom and usage and that the contract terms here were to be given their generally accepted meaning. The court ruled that the agreement, i.e., the defendant’s unconditional guarantee, in its opinion, was clearly intended to mean a return of the fee paid and, consequently, entered judgment for the plaintiff. The court also noted that it had found that the. credibility of the plaintiff’s witnesses outweighed the credibility of the defense witnesses, that the defendant’s employees had merely “danced around” the issue of what the policy meant and what they told the plaintiff it meant, and that the plaintiff’s witnesses were more straightforward, and, thus, more believable. The court, however, as noted earlier, denied the plaintiff’s request for attorney fees under section 2 — 611 of the Code of Civil Procedure. See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.

On appeal, defendant raises the issue of whether the trial court erred when it entered judgment for plaintiff because: (1) plaintiff failed to meet its burden of proof; or, alternatively, (2) extrinsic evidence was improperly admitted concerning the term “unconditional guarantee,” including the admission of defendant’s prior Department of Labor applications and the testimony concerning the representations made to Jeffrey Kahn, by Jim Ford, concerning defendant’s guarantee policy. In its cross-appeal, the plaintiff again argues that the trial court should have granted plaintiff attorney fees under section 2 — 611 based on defendant’s baseless denials of liability.

Defendant first alleges that the court erred in entering judgment for the plaintiff because the plaintiff failed to prove, by a preponderance of the evidence, the specific allegation in its complaint that the defendant told plaintiff that “unconditional guarantee” meant that plaintiff was entitled to a full refund of the fee. Defendant claims that, at best, plaintiff may have proven that “unconditional guarantee” meant that if Vogel was fired within 60 days, the agreed upon time period for the guarantee, there would be “no cost” to plaintiff. Defendant asserts that its witnesses testified that the term meant replacement only, not refund. Hence, defendant concludes that plaintiff failed to prove its case.

As an alternative argument, the defendant claims that because the term “unconditional guarantee” was clear and unambiguous, the court was bound to judge the matter on the basis of the common meaning of the unambiguous term, and, thus, the consideration of any extrinsic evidence to interpret the unambiguous term was erroneous. The defendant specifically contends that the admission of Joyce Markmann’s testimony concerning the custom and usage definition of “unconditional guarantee” was also improper because, as stated, the term was unambiguous. Moreover, defendant argues, Markmann’s testimony was both improper and irrelevant since she only dealt with employment agencies, and not executive search firms, and the defendant was admittedly an executive search firm when it placed Vogel. Similarly, defendant asserts that the trial court improperly admitted defendant’s 1979 and 1982 applications for registration because they had been filed at a time when defendant was an employment agency, and required by law to offer a refund, and thus, these applications were irrelevant. Additionally, defendant also claims that Jeffrey Kahn’s testimony was improper because, first, he testified as to the hearsay statements of Jim Ford, and, second, the conversations between Kahn and Ford were irrelevant, in any event, because they took place well after the Vogel incident and because Ford was not a supervisor for the defendant and was not in a position to speak on defendant’s policy.

The plaintiff, on the other hand, claims that it properly proved its case before the trial court. Plaintiff asserts that it had no burden to present direct evidence that the defendant’s employees specifically stated that “unconditional guarantee” meant that plaintiff would get its money back. The only thing, plaintiff contends, that it was required to do was to show that defendant gave an unconditional guarantee, that this reasonably meant a refund, and that defendant had never indicated anything to the contrary. Plaintiff asserts that it proved these matters at trial. The term “unconditional guarantee” was, the plaintiff argues, found to be clear and unambiguous, and, therefore, the court properly entered judgment for the plaintiff. However, even if the term was determined to be ambiguous, plaintiff argues, it would, nevertheless, be construed against the drafter, i.e., the defendant here, and since the defendant used the term and made no effort to clarify its meaning, plaintiff was reasonable in believing that defendant was required to return the fee.

Plaintiff agrees with the defendant that the law does not allow extrinsic evidence in a situation such as this, but claims that a review of the trial court record clearly demonstrates that the trial court did not rely on any extrinsic evidence in its ruling here. The court properly found that there was an agreement between plaintiff and defendant providing for an unconditional guarantee, which meant that a return of the money would be provided if the plaintiff was dissatisfied.

However, if the term was ambiguous, and the admission of the extrinsic evidence was appropriate, plaintiff asserts that, nonetheless, Ms. Markmann’s testimony would have been proper. She was a qualified expert witness in this area and defendant never made any objections to her qualifications or to the custom and usage definition of “unconditional guarantee” to which she testified. Moreover, even defendant’s own theory at trial, plaintiff asserts, was based on its own experts’ custom and usage definition. The admission of defendant’s registration applications was proper if the term was ambiguous, plaintiff also contends, as was the admission of Kahn’s testimony which showed the inconsistency in defendant’s representations of its guarantee policy to its clients.

It is the function of the trier of fact to assess the credibility of the witnesses and the weight to be accorded their testimony, and the trier of fact’s determination will not be overturned on review unless it is contrary to the manifest weight of the evidence. Midland Hotel Corp. v. Reuben H. Donnelly Corp. (1987), 118 Ill. 2d 306, 312-13, 515 N.E.2d 61, 64.

When a dispute arises over a certain term in a contract, the court must first determine whether the disputed term is ambiguous or unambiguous. Where the contract term is clear and unambiguous, that term must be given its ordinary and natural meaning, and other rules of contract construction, as well as extrinsic evidence, do not apply. (McDonald’s Corp. v. Mazur (1984), 127 Ill. App. 3d 608, 612-13, 469 N.E.2d 430, 434.) Contract language is not rendered ambiguous merely because the parties do not agree upon the meaning of the language. (Berutti v. Dierks Foods, Inc. (1986), 145 Ill. App. 3d 931, 934, 496 N.E.2d 350, 352.) A contract term is ambiguous if, and only if, it is reasonably or fairly susceptible of different constructions, and it is not ambiguous if a court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of the language in general, its meaning depends. (Berutti, 145 Ill. App. 3d at 934, 496 N.E.2d at 352.) Additionally, it is well settled in Illinois that contract language which is ambiguous or uncertain should be resolved against the party who created it. Berutti, 145 Ill. App. 3d at 934, 496 N.E.2d at 352.

There does not seem to be any question that the plaintiff met its burden of proof here. The defendant apparently relies only on the language in plaintiff’s complaint as support for its claim that plaintiff did not prove its cause of action. We find no foundation for the defendant’s contentions. The allegations here were of a breach of contract, and the evidence offered in support of those allegations, when viewed as a whole, was sufficient to support the court’s judgment. Plaintiff established that there was a valid agreement by presenting evidence of the essential terms of the contract, to which defendant, with the exception of the definition of “unconditional guarantee,” agreed. There was, in addition, evidence of the breach of the agreement and evidence of the damages plaintiff suffered as a result of defendant’s breach. Hence, there was no need for plaintiff to prove any specific statements made to plaintiff by defendant’s employees in order to establish its case. Here, the plaintiff met its burden of proof, as required by its allegations, and the trial court’s finding was not contrary to the manifest weight of the evidence.

While both parties, in their briefs, seem to agree that the disputed term “unconditional guarantee” was unambiguous, they disagree on the meaning of the term. In such a case, where a term is unambiguous, the common and ordinary meaning must be used to resolve the dispute. (See McDonald’s, 127 Ill. App. 3d 608, 469 N.E.2d 430.) Surely, the common meaning of 100% unconditional guarantee would encompass a full, money-back refund. Thus, we agree with the trial court’s finding here that the common and ordinary meaning of this unambiguous term required a return of the fee that plaintiff had paid to defendant.

Since we agree with the trial court and, apparently now, both parties, that this term was unambiguous, there was no need for the trial court to consider any extrinsic evidence. However, we do not believe that admission of this evidence was reversible error because the trial court did not rely on this extrinsic evidence in its ruling below. Even if it could be argued that the admission of this evidence somehow clouded the court’s judgment, it is unclear how the defendant was prejudiced, because even though extrinsic evidence was actually presented by the plaintiff, such evidence was presented by the defendant as well. Furthermore, the defendant never objected to Ms. Markmann’s qualifications at trial, nor did it object to Jeffrey Kahn’s testimony concerning Jim Ford’s representations to him, and, thus, any error in these matters was waived for review. We find that the trial court properly entered judgment for the plaintiff and did not err by allowing this testimony.

On cross-appeal, plaintiff contends that the trial court erred when it denied its motion for attorney fees under section 2 — 611. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) Plaintiff argues that it was entitled to recover attorney fees under section 2 — 611 because defendant denied all liability in its pleadings and stated that it had told plaintiff of its alleged replacement policy and then failed to present any evidence at trial in support of that claim. This demonstrated, plaintiff asserts, that the defendant had an improper purpose in denying liability and that it was merely attempting to drag out the litigation. Defendant responds that the trial judge properly denied the plaintiff’s fees claim because it had no improper purpose in denying liability and, in fact, every defendant is entitled to deny liability, thereby forcing plaintiff to prove its allegations.

The decision of the trial judge whether to allow a recovery under section 2 — 611 is within the sound discretion of the trial judge, and, absent an abuse of that discretion, that decision will not be overturned on appeal. (In re Estate of Wernick (1989), 127 Ill. 2d 61, 77-78, 535 N.E.2d 876, 883.) Section 2 — 611 is also to be strictly construed, and the party seeking to recover under it has the burden of proving that his opponent made untrue allegations without reasonable cause. Wernick, 127 Ill. 2d at 77, 535 N.E.2d at 883.

There was no abuse of discretion here. Plaintiff essentially claims that because the defendant denied liability in its pleadings, and then lost the case in court, that it should now, because of this, be required to pay attorney fees under section 2 — 611. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) The mere denial of liability, where the defendant is ultimately found liable, is not a sufficient basis for the award of section 2 — 611 fees. Thus, plaintiff was not entitled to fees and the trial court correctly denied its request.

For all of the above reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McNAMARA and LaPORTA, JJ., concur.

       The testimony at trial revealed that employment agencies are different than executive search firms in that, basically, executive search firms place people only in executive, professional, and managerial types of positions. The defense testimony suggested that defendant previously placed employees in all types of positions, but, after 1982, defendant placed people only in executive, professional, and managerial positions, and, thus, did not have to register with the Illinois Department of Labor at the time of this suit.

       As Ms. Markmann explained, only employment agencies, not executive search firms, are required to be licensed by the State Department of Labor, and thus, prior to 1982, defendant, as an employment agency, was required to file these applications in order to be registered with the State.


text:
    BRADLEY BATKA, Plaintiff-Appellant, v. THE BOARD OF TRUSTEES OF THE VILLAGE OF ORLAND PARK POLICE PENSION FUND et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—88—1215
    Opinion filed July 21, 1989.

      George J. Cullen & Associates, Ltd., of Chicago (Charles G. Haskins, Jr., of counsel), for appellant.
    Richard F. McPartlin, of Chicago, for appellees.
   JUSTICE QUINLAN

delivered the opinion of the court:

The plaintiff, Bradley Batka, filed an application for a disability pension with the defendants, the Board of Trustees of the Village of Orland Park Police Pension Fund, and its members, Charles Cassata, George Gilbert, Ronald Noteboom, John Sullivan and Ted Loutis (collectively referred to as the Board), and after a hearing, the Board denied his application. Plaintiff appealed the denial to the circuit court of Cook County. The court affirmed the Board’s decision, and the plaintiff now appeals to this court.

The plaintiff, born in 1952, began working for the Orland Park police department in 1974 as a patrol officer. In January 1979, he became a detective in the investigations unit, and, in October 1981, he was returned to patrol duty, and later assigned to a tactical unit. In 1983, because of several incidents involving the plaintiff, the chief of police, Chief Gorris, ordered him to see John Dietche, a counselor, who was affiliated with the department. Dietche referred Batka to a clinical psychologist, Robert Puls. Plaintiff was also referred to two psychiatrists, Dr. Nyquist, on the recommendation of plaintiff’s personal physician, and Dr. Zimbroff, on the recommendation of Chief Gorris. In September 1983, plaintiff was relieved of his duties by Chief Gorris. Thereafter, plaintiff filed this application for disability benefits with the Board, and, at the Board’s request, plaintiff was then examined by Dr. Lawton and Dr. Doshi, who were also psychiatrists.

When the hearing before the Board began, plaintiff requested that a certain Board member that plaintiff knew recuse himself, Mr. Gilbert, and he further requested that any other Board members who could not be impartial also recuse themselves (apparently plaintiff knew other Board members as well). Plaintiff argued to the Board that Gilbert, in particular, was biased because plaintiff knew Gilbert and, a few months before the hearing, plaintiff and Gilbert spoke to each other at a party and, during their conversation, Gilbert told plaintiff that he hoped they would not become enemies over the matter pending before the Board. The hearing proceeded and none of the Board members recused themselves.

The evidence which plaintiff offered at the hearing established that he had made numerous complaints to his superiors about various problems he had experienced as a police officer and that the stress from these problems prevented him from performing his duties as a policeman. At the hearing, Batka claimed that his stress was disabling, and that he was accordingly entitled to either “line-of-duty” or “not-on-duty” disability benefits. (See Ill. Rev. Stat. 1987, ch. 108½, pars. 3 — 114.1, 3 — 114.2.) The problems that plaintiff argued entitled him to either a “line-of-duty” or a “not-on-duty” pension included: his excessive work hours and workload as a detective; his inability to take allotted vacation time; his numerous disagreements with the chief of police, Chief Gorris, as a result of Gorris’ criticisms of his work performance and his “bad attitude”; his physical problems including his ulcers, headaches, eye irritation, fatigue, and sinus trouble; his disappointment at failing the sergeant’s exam, and his resentment towards less senior officers who had passed the exam; his difficulty with a certain case where a two-year-old child, who reminded him of his daughter, had drowned; his problems with the other officers who teased him and referred to him as “Norman Bates” because he was seeing a counselor; his divorce, which was allegedly the result of his problems with his job; and his violent propensities on the job that resulted in certain incidents where he struck prisoners or suspects, or let them injure themselves without justification.

Plaintiff claimed that these problems caused him severe stress, and resulted in ulcers, headaches, fatigue, depression, sleeping disorders, and irritability. He asserted that these problems prevented him from performing his job as a policeman and, thus, entitled him to a pension.

Other testimony at the hearing included the testimony of plaintiff’s supervisor in the investigations unit, and the testimony of several psychiatrists, a psychologist, and a counselor who had examined or counseled plaintiff concerning these difficulties. However, the evidence at the hearing also established that plaintiff’s workload was not excessively high when compared to that of the other detectives working for the Village, and that, contrary to plaintiff’s allegations, he had, in fact, taken a number of consecutive paid days off. Other evidence at the hearing indicated that plaintiff had handled other homicides and suicides in addition to that of the two-year-old girl and that, apparently, plaintiff’s extreme reaction to the child’s death was an isolated incident. Finally, the plaintiff admitted, in his own testimony, that he had been a heavy drinker in the past.

All of the doctors and counselors that examined plaintiff agreed that he was suffering from stress, much of which was centered on his problems with Chief Gorris, but they disagreed on whether plaintiff could continue to work as a police officer. The specific recommendations of those persons who had examined plaintiff were varied. Dr. Nyquist, a psychiatrist who saw plaintiff from August 1983 to March 1984, testified and recommended that plaintiff not be employed in police work anywhere because of his personality structure and the stress of the job. Dr. Nyquist stated that he believed that the plaintiff’s condition could manifest itself in another job and that plaintiff’s divorce and his drinking exacerbated his problems; he felt that if plaintiff continued in police work, it could cause him to “explode” or harm someone.

Dr. Zimbroff, a psychiatrist, also evaluated plaintiff twice in August 1983. He testified that in his opinion, plaintiff needed “fairly intensive psychotherapy” due to his stress, but he felt that plaintiff had sufficient strength to properly function as a policeman. Dr. Zimbroff also noted in his testimony that, from his experience in examining other police officers, he had observed that complaints such as the plaintiff’s were similar to those of other officers.

A report by Dr. Lawton, another psychiatrist who saw plaintiff once in May 1985, at the Board’s request, was also admitted into evidence. Dr. Lawton’s recommendation, in his report, was that plaintiff not return to police duty until his psychological problems were resolved. In addition, a report by Dr. Doshi, a psychiatrist who saw plaintiff twice in January 1985, at the Board’s request, was also admitted into evidence. In his report, Dr. Doshi concluded that plaintiff’s problems “practically preclude[ ] him from resuming his work as a police officer.” Robert Puls, a nonregistered clinical psychologist, also saw plaintiff once in May 1983. He testified that he believed plaintiff could continue his work as a policeman, but that he should also continue in supportive psychotherapy to deal with his stress.

John Dietche, a member of the National Board of Certified Counselors, saw plaintiff numerous times in 1983. He testified that he felt that plaintiff could continue to work as a police officer, but he stated that it was not part of his job to diagnose Batka’s condition, but only to counsel him. He did state, however, that he felt plaintiff needed to continue therapy, and agreed with Mr. Puls’ recommendations.

After reviewing all of this evidence, the Board denied plaintiff’s application for either “line-of-duty” disability benefits, or, alternatively, “not-on-duty” disability benefits. (See Ill. Rev. Stat. 1987, ch. 108½, pars. 3 — 114.1, 3 — 114.2.) Plaintiff then, as stated above, sought judicial review in the circuit court. Although the court found that plaintiff had received a fair hearing, the court, nevertheless, remanded the case for further cross-examination of Robert Puls, the clinical psychologist, on hypothetical questions concerning certain of the specific incidents on which Batka had based his claim for disability benefits. On remand, Puls was asked hypothetical questions concerning incidents where plaintiff, while he was on the job, had struck prisoners or suspects or had let them injure themselves. Puls testified that he would not change his opinion that plaintiff could return to police work, based upon the general facts of the hypotheticals. However, Puls stated that if he had been provided with additional information about the circumstances surrounding these hypothetical incidents, such as whether or not plaintiff was in therapy at the time of the hypothetical incident, or how plaintiff had been functioning at the time of the hypothetical incident, he would then have to weigh all of the factors again and, depending upon the nature of such additional information, it was possible that his opinion could change.

After this testimony, the Board again denied plaintiffs application, and plaintiff, once again, sought judicial review in the circuit court. This time, the circuit court affirmed the Board’s finding. In announcing its decision, the court stated that it agreed with the testimony that found that Batka was unable to return to work and specifically disagreed with Dr. Zimbroff’s testimony. The court, however, noted that it was bound by the standard of review which required it to affirm the Board’s finding if the Board’s decision was not contrary to the manifest weight of the evidence.

On appeal to this court, plaintiff raises two issues: (1) whether the plaintiff received a fair and impartial hearing before the Board; and (2) whether the Board’s decision was contrary to the manifest weight of the evidence.

Plaintiff first contends that he did not receive a fair hearing before the Board because the Board was biased against him. Our supreme court addressed a similar issue of bias involving a board of education in Grissom v. Board of Education (1979), 75 Ill. 2d 314, 388 N.E.2d 398. The court there said that State administrators are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own merits. Additionally, the court stated that a decision maker is not disqualified simply because he has taken a position on a policy issue related to the dispute, unless it can be shown that the particular decision maker is not capable of judging a controversy solely on the basis of its own circumstances. Grissom, 75 Ill. 2d at 320, 388 N.E.2d at 400.

In Grissom, the court reviewed a claim by the plaintiff there that the board of education was biased and, because of this, had unfairly overruled most of the plaintiff’s objections and sustained all of his opponent’s objections. The plaintiff claimed bias because one board member’s child had been disciplined by the plaintiff, a teacher, and because the chairman of the board there had told a prospective plaintiff’s witness, in front of another board member, that the plaintiff was an unreasonable and incompetent teacher. (Grissom, 75 Ill. 2d at 321, 388 N.E.2d at 400.) The Grissom court found that these incidents were insufficient to establish bias since, even though the chairman’s remarks were thoughtless and indiscreet, the comments were not so substantial as to constitute bias or prejudice against the plaintiff. (Grissom, 75 Ill. 2d at 321, 388 N.E.2d at 400.) The Grissom court went on to explain that to establish bias, one must show more than the mere possibility of bias. Moreover, the court noted that the plaintiff there was represented by counsel and that the plaintiff had had the opportunity to cross-examine the witnesses. Hence, under those circumstances, the court concluded, the plaintiff had received a fair hearing. Grissom, 75 Ill. 2d at 321-22, 388 N.E.2d at 400.

In this case, the plaintiff contends that he did not receive a fair hearing because the Board, and in particular, Gilbert, was biased. Plaintiff first argues that Gilbert’s remarks to him, made at a graduation party, in which Gilbert essentially told plaintiff that he hoped that they would not become bitter enemies because of the Board hearing, showed that Gilbert was biased. Plaintiff also asserts that certain of Gilbert’s comments during the hearing showed that he was biased. One of the examples that plaintiff cites took place during plaintiff’s testimony at the hearing. Plaintiff, during his testimony, stated that he felt many of the remarks Chief Gorris made to him were offensive and insulting. At that point, Gilbert interrupted plaintiff’s testimony and stated that it was well known that Chief Gorris’ remarks were often made in a joking manner. Another example cited by plaintiff occurred when plaintiff testified at length about the numerous police department commendations he had received. During that testimony, Gilbert objected to the relevancy of this detailed testimony. These examples, and others, plaintiff claims, demonstrated Gilbert’s bias. In addition, plaintiff claims that other Board members’ remarks during the hearing showed bias or prejudice. In particular, plaintiff argues that the statement of one Board member, at the end of one of the evening hearing sessions, to the effect that continuing the hearing was “ridiculous,” clearly showed that the Board was biased.

The Board, on the other hand, asserts that plaintiff received a fair hearing and that, under the Grissom holding, the plaintiff has not established bias here. (See Grissom, 75 Ill. 2d 314, 388 N.E.2d 398.) Furthermore, the Board argues that plaintiff’s complaints of bias are solely premised on remarks of the Board members that were taken out of context.

We agree with the Board. While certain of Gilbert’s remarks may have been indiscreet, they do not come close to the level of the remarks in Grissom, and, hence, they were not a violation of plaintiff’s due process rights. (See Grissom, 75 Ill. 2d 314, 388 N.E.2d 398.) Moreover, certain of the remarks were clearly taken out of context. Plaintiff’s complaint concerning the statement that to continue the hearing was “ridiculous” was actually a neutral observation as far as the plaintiff was concerned, because the statement was directed towards whether the hearing should be continued when it was already 11 p.m. Additionally, plaintiff did not submit any evidence which would show that either Gilbert or the Board was prejudiced. As noted earlier, merely showing that the possibility of prejudice existed is insufficient to establish bias. Here, similar to the plaintiff in Grissom, Batka was represented by counsel, and he had adequate opportunities to cross-examine the witnesses at the hearing. (See Grissom, 75 Ill. 2d 314, 388 N.E.2d 398.) Thus, the plaintiff has not established that he was denied a fair hearing before the Board.

Plaintiff next asks us to consider whether the Board’s decision was contrary to the manifest weight of the evidence. Initially, we note that the provisions of a police pension plan are to be construed liberally in favor of those to be benefitted. (Hahn v. Police Pension Fund (1985), 138 Ill. App. 3d 206, 211, 485 N.E.2d 871, 876.) However, when analyzing claims arising from an administrative agency’s determinations, the agency’s findings and conclusions on questions of fact are held to be prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) Therefore, on appeal, a reviewing court will only examine the agency’s findings of fact to determine if they are contrary to the manifest weight of the evidence. (Wall v. Police Pension Board (1988), 178 Ill. App. 3d 438, 533 N.E.2d 458.) To make such a finding, a court must conclude that all reasonable and unbiased persons, acting within the limits prescribed by law and drawing all inferences in support of the finding, would agree that the finding is erroneous and that the opposite conclusion is clearly evident. Hahn, 138 Ill. App. 3d at 209, 485 N.E.2d at 874.

Plaintiff here applied for “line-of-duty” disability benefits (see Ill. Rev. Stat. 1987, ch. 108½, par. 3 — 114.1), and, alternatively, “not-on-duty” pension benefits (see Ill. Rev. Stat. 1987, ch. 108½, par. 3— 114.2). Section 3 — 114.1 of the Illinois Pension Code, which authorizes pension benefits for “line-of-duty” injuries, allows an award of benefits where an officer is disabled as the result of sickness, accident, or injury incurred in or resulting from the performance of an act of duty. Section 3 — 114.2, the “not-on-duty” provision, allows an award of benefits where an officer is disabled from service on the police force as a result of any cause other than the performance of an act of duty. Both sections are premised upon a finding that the plaintiff’s disability rendered him unfit for duty. (See Wall, 178 Ill. App. 3d 438, 533 N.E.2d 458; Hahn, 138 Ill. App. 3d 206, 485 N.E.2d 871.) On review, therefore, we must first determine whether there was some competent evidence in the record to support the Board’s finding that plaintiff was not so physically or mentally disabled for service as to entitle him to disability benefits under section 3 — 114.1 or section 3 — 114.2 of the Illinois Pension Code. See Ill. Rev. Stat. 1987, ch. 108½, pars. 3— 114.1, 3-114.2.

Plaintiff argues that the weight of the evidence overwhelmingly showed that plaintiff was unfit to perform his duties under either the “line-of-duty” or the “not-on-duty” provisions of the Pension Code. (See Ill. Rev. Stat. 1987, ch. 108½, pars. 3-114.1, 3-114.2.) The Board, however, argues that there was clearly sufficient, competent, and proper evidence before it to support the finding that plaintiff could perform his duties as a police officer.

The Board here found that plaintiff was not disabled from service as a police officer and did not, therefore, qualify for either “line-of-duty” or “not-on-duty” benefits. (See Ill. Rev. Stat. 1987, ch. 108½, pars. 3 — 114.1, 3 — 114.2.) However, we believe that the evidence before the Board showed that Batka was unable to perform his duties as police officer and, accordingly, the Board’s finding that he was not disabled was contrary to the manifest weight of the evidence.

The record on appeal demonstrates that the opinion of three board-certified psychiatrists at the hearing found that Batka was not fit for duty, and one board-certified psychiatrist found that, although Batka was fit for duty, he needed “fairly intensive psychotherapy.” In addition, although the two nonphysicians, the psychologist, Robert Puls, and the counselor, John Dietche, believed that Batka was fit for duty, they both agreed that Batka needed to continue in supportive therapy if he was to return to police work. (See Hahn, 138 Ill. App. 3d 206, 485 N.E.2d 871.) On the basis of this record, we, thus, conclude that the Board’s finding that Batka was fit for duty was contrary to the manifest weight of the evidence and find that the record here established that Batka was disabled from performing his duty.

Even though we find that plaintiff was disabled, we do not find that he was entitled to “line-of-duty” benefits. (See Ill. Rev. Stat. 1987, ch. 108½, par. 3 — 114.1.) This conclusion is supported by our recent decisions in Wall v. Police Pension Board (1988), 178 Ill. App. 3d 438, 533 N.E.2d 458, and Olson v. City of Wheaton Police Pension Board (1987), 153 Ill. App. 3d 595, 505 N.E.2d 1387. In both Wall and Olson, the officers there claimed that they were entitled to “line-of-duty” benefits as a result of their stress-related disabilities, which they claimed were particularly a result of the performance of their unique duties as police officers. In these cases, the plaintiffs claimed that the problems with their jobs caused their stress-related disabilities. The problems that were the basis for their claims included differences with superiors in management style; demeaning job assignments relative to rank or seniority; the negative image of the police in the public’s eye; the intense pressure caused both from the responsibilities of an officer and the heavy workload of an officer; the tendency toward physical violence on the job; marital difficulties; and alcohol or drug abuse as a result of the job. These problems, the courts there concluded, were not unique to police officers and, consequently, in both cases the courts denied “line-of-duty” disability benefits, finding that no causal relationship existed between the duties of a police officer, and the alleged stress that occurred there. Similarly here, the evidence indicated that no causal relationship existed between Batka’s duties as a police officer and his alleged stress. Hence, we find that the Board properly determined that Batka was not entitled to “line-of-duty” benefits under section 3 — 144.1, and the trial court properly affirmed that determination. See Ill. Rev. Stat. 1987, ch. 108½, par. 3-114.1.

Although we find that plaintiff is not entitled to “line-of-duty” benefits, we do find that plaintiff is entitled to “not-on-duty” benefits under section 3 — 114.2. (See Ill. Rev. Stat. 1987, ch. 108½, par. 3 — 114.2.) Plaintiff here was, in fact, “disabled as a result of [a] cause other than the performance of an act of duty.” (See Ill. Rev. Stat. 1987, ch. 108½, par. 3 — 114.2.) Further, since, as noted previously, pension provisions are to be construed in favor of those to be benefited, we must find that Batka is entitled to “not-on-duty” benefits. In so holding, we also note that section 3 — 115 of the Illinois Pension Code also requires that an officer’s disabled status be annually reviewed to monitor the officer’s fitness for duty, and, in the event that the officer refuses to comply with or participate in these annual reviews, the officer’s disability pension payments may be terminated. (See Ill. Rev. Stat. 1987, ch. 108½, par. 3 — 115; Hahn, 138 Ill. App. 3d at 213, 485 N.E.2d at 876.) Consequently, while Batka is entitled to receive a “not-on-duty” disability pension, this determination is subject to annual review by the Board to monitor the status of Batka’s disabled condition, and, thus, the continuation or termination of disability benefits.

Accordingly, we reverse the decision of the Board and the circuit court and order the Board to award Batka the applicable “not-on-duty” pension benefits.

Judgment reversed.

EGAN, P.J., and LaPORTA, J., concur.

       At the time of his testimony, Mr. Puls was a candidate for a doctoral degree in psychology.

       The testimony and opinions of the doctors, the clinical psychologist and the counselor were all properly presented before the Board at plaintiff’s hearing. (See Ill. Rev. Stat. 1987, ch. 108½, par. 3 — 115 (certificate of disability for pension benefits must be sworn to by three practicing physicians but Board may require “other evidence” of disability).) We do, however, believe that the testimony of the physicians should generally be accorded greater weight than the testimony and opinions of the nonphysicians. (See generally Ill. Rev. Stat. 1987, ch. 108½, par. 3 — 115 (while certificate of disability for pension benefits must be sworn to by “three practicing physicians,” the Board may nonetheless require other evidence of disability); see also Caauwe v. Police Pension Board (1989), 184 Ill. App. 3d 482.