author: JUSTICE RIZZI

text:
    TAPRECIA WASHINGTON, a Minor, by her Parent and Next Friend, Denise Patton, Plaintiff-Appellee, v. CAROL SMITH, in her Official Capacity as President of the Board of Education, School District No. 215, et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1 — 93—0121
    Opinion filed June 9, 1993.

      Robert H. Ellch, John M. Izzo, and Kelly A. Hayden, all of Chicago Heights, for appellants.
    Eugene C. Edwards and Mischelle Causey-Drake, both of Cook County Legal Assistance Foundation, of Harvey, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Taprecia Washington (Taprecia), a minor, by her parent and next friend, Denise Patton, brought a common law certiorari proceeding for injunctive and declarative relief from an order of the Board of Education, School District No. 215 (Board). The Board’s order expelled her for one semester from Thornton Fractional North High School (Thornton), for possessing an ice pick while on school property. Carol Smith, Steven Toth, Mary Lou Coneen, Ralph Spargo, Beatrice Taylor and Debbie Waitekus were named defendants in their official capacities as officers and members of the Board. The trial court entered a preliminary injunction allowing Taprecia to continue school for the semester. After a hearing, the trial court reversed the Board’s order. The defendants have appealed from the trial court’s order reversing the Board’s order. We affirm.

During the spring semester of 1992, Taprecia was completing her third year of high school at Thornton. On May 22, 1992, the dean of students received information that Taprecia brought a weapon to school, and he asked her if she was carrying a weapon. Taprecia then removed an ice pick from her purse and gave it to him. As a result, Taprecia was immediately suspended from school for 10 days. After the 10-day suspension, she was allowed to return to school to take her final examinations for the semester.

Thornton also recommended to the Board that Taprecia be expelled for one school semester for possessing a weapon on school property. Following a hearing on June 16, 1992, the Board entered an order expelling Taprecia from school for the 1992 fall semester. Thereupon, Taprecia brought the present proceeding in the circuit court.

The trial court entered a preliminary injunction enjoining the defendants and the Board from suspending Taprecia from school for the 1992 fall semester. After conducting a hearing, the trial court reversed the Board’s June 16, 1992, order and entered an injunction enjoining the defendants and the Board from expelling Taprecia from school for the 1992 fall semester and from any other semester.

The trial court entered its order on the basis that the report of proceedings by the Board was inadequate to allow the trial court to review the Board’s decision under a common law certiorari proceeding. The trial court stated:

“It is with genuine regret that this Court finds it must reverse the Board’s finding because of an insufficient record of proceedings before it that does not allow the Court to intelligently fulfill its certiorari obligations.
* * *
The problem here is the record of proceedings which has been presented to the Court. *** To affirm, based upon the incomplete record produced here, would be a condonation of the less than due process afforded students under circumstances where the serious penalty of expulsion is a possibility.”

The report of proceedings consisted of an audio tape that is partially inaudible and an affidavit of the recording secretary of the Board “charged with the responsibility of keeping the record of proceedings before the Board.” The affiant attached six typewritten pages of testimony before the Board, but not all of the testimony was transcribed.

We disagree with the trial court’s conclusion that the report of proceedings before the Board was inadequate to allow review of the Board’s decision. The supreme court rules provide that if no verbatim transcript of the evidence of proceedings is obtainable, a proposed report of proceedings from the best available sources, including recollection, may be filed. (See 134 Ill. 2d R. 323(c).) We believe this rule, which is applicable to appeals from the trial court to the appellate court, is also applicable for review of an administrative agency’s decision by the trial court by way of a common law writ of certiorari.

Here, the report of proceedings before the Board from the best available sources, including recollection,' was filed. Although the report of proceedings does have some voids, it is plainly sufficient to apprise the court as to the proceedings before the Board. Moreover, the trial court stated in its memorandum of opinion: “The material facts are not disputed.” Also, on appeal the parties do not dispute the material facts. Under the circumstances, we conclude that the record before the trial court was sufficient to allow review of the Board’s decision.

The remaining question for our review deals with whether the Board’s June 16, 1992, order is against the manifest weight of the evidence and an abuse of discretion. (See Norton v. Nicholson (1989), 187 Ill. App. 3d 1046, 1058, 543 N.E.2d 1053, 1059.) It is within the discretion of a school board to expel a student who is guilty of gross disobedience or misconduct. (Ill. Rev. Stat. 1991, ch. 122, par. 10 — 22.6.) The discretion, however, does have limits.

In the present case, we agree with the Board that when a student carries an ice pick on school property without any legitimate, school-related purpose it is misconduct. There is no evidence, however, that Taprecia exhibited, brandished or otherwise threatened anyone with the ice pick. Her explanation for possessing the ice pick was that she was returning it to a friend who left it at her house the previous evening. Moreover, although Taprecia’s past conduct is not exemplary, neither is it egregious. The school principal testified that “Taprecia’s disciplinary record contained six or seven disciplinary incidents, including one suspension for fighting.” The Board concedes, however, that Taprecia “has never had a ‘severe’ referral” disciplinary problem.

Under all the circumstances, the misconduct involved in this case is plainly not sufficient to expel Taprecia from school for a semester. This is especially true since she has already been suspended 10 days for the incident. The Board’s order of suspension for a semester is therefore palpably against the manifest weight of the evidence. In addition, the Board’s order expelling Taprecia from school for the 1992 fall semester for the misconduct that is involved here is an abuse of discretion because the misconduct is plainly not sufficient to expel her for a semester.

Accordingly, the trial court’s order reversing the Board’s order which expelled Taprecia for one semester from Thornton is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE HOFFMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WYDELL FEAZELL, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 90—0505
    Opinion filed June 10, 1993.
    Rehearing denied June 28, 1993.

      Allan A. Ackerman and Joelle H. Hollander, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Margaret J. Faustmann, and Fabio Valentini, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HOFFMAN

delivered the opinion of the court:

After a jury trial, defendant, Wydell Feazell, was convicted of possession of a controlled substance with intent to deliver, possession of cannabis with intent to deliver, unlawful use of weapons, and unlawful use of weapons by a felon. (Ill. Rev. Stat. 1985, ch. 56½, pars. 1401(a)(2), 705(e); ch. 38, pars. 24 — 1(a)(7), 24 — 1.1(a).) Defendant now appeals and we consider the following issues: (1) whether the denial of his motion to suppress was plain error because consent was not voluntary; (2) whether defendant was denied effective assistance of trial counsel when the motion to suppress issue was not raised in his post-trial motions; and (3) whether the evidence at trial was sufficient to prove beyond a reasonable doubt that defendant constructively possessed the drugs and weapons. For the following reasons, we affirm.

On June 1, 1988, defendant was arrested without a warrant after an altercation with his neighbor. Without a search warrant, the police searched the apartment where defendant was arrested and seized , cocaine, cannabis, and weapons. He was charged with aggravated battery, possession of a controlled substance with intent to deliver, possession of cannabis with intent to deliver, unlawful use of weapons, and unlawful use of weapons by a felon. The aggravated battery charge was nol-prossed. Prior to trial, defendant moved to suppress the evidence found in the apartment arguing that the police entered without consent.

In the hearing on the motion to suppress, Officer David Strain testified that on June 1, 1988, he responded to a complaint from defendant’s neighbor who said that defendant attacked him with an ax handle and a gun. From a previous incident, Strain knew defendant lived at 320 West Evergreen.

Strain, accompanied by Sergeant Phillip Watzke and Officer David Schmidt, arrived at that address without an arrest or search warrant. Strain saw defendant and his son, Wydell Jr., in the yard. When defendant saw the officers, he ran up to the third-floor apartment in the building. The officers followed him, but the door was locked with a combination lock. They knocked and shouted defendant’s name but he did not answer. Strain testified that, without being asked, Wydell Jr. came up to the third floor, entered the combination, and unlocked the door. Defendant was arrested, handcuffed, and read his Miranda rights.

The officers recovered a bloody ax handle on the back porch. Strain testified that the officers were discussing obtaining a search warrant when defendant asked if that could be avoided because he thought the police would ransack the apartment while searching it. Strain explained to defendant that he could accompany the officers while they conducted a plain view search for the gun involved in the aggravated battery. Defendant agreed. From an open pantry shelf, Strain recovered bags of white powder and crushed green plant, which he suspected were cocaine and cannabis, and miscellaneous types of ammunition.

Officer Schmidt testified that Wydell Jr. unlocked the door to the third-floor apartment without being requested to do so. In the search of the apartment, Schmidt recovered an antique gun, two cross bows, a sawed-off rifle which defendant said was real, a machine gun, and an Uzi submachine gun. They did not, however, recover the gun allegedly used in the aggravated battery.

Sergeant Watzke testified that when he saw the third-floor apartment was locked, he went back down to the yard and asked Marjorie Tatum, who was in the yard with defendant’s son and daughter, if anyone would assume responsibility for defendant’s children. She dedined and Watzke shouted to defendant, who was on the third floor, that the children would either go to the police station or to the Audy home because no one would take responsibility for them. Wydell Jr. left the yard and defendant was arrested shortly thereafter. Watzke testified that when the officers were discussing obtaining a search warrant, defendant stated that he knew what happened when the police searched a house with a search warrant and asked if there was another way to handle it. He agreed to a plain view search of the apartment.

Wydell Jr., defendant’s 13-year-old son, referred to the third-floor apartment as defendant’s house and stated that he lived with defendant there from “time to time.” Wydell Jr. testified that when the police were trying to get into the locked apartment, they asked him to open the door but he told them he did not know the combination. The officers told him that they would take him to the Audy home if he did not open the door. Wydell Jr. testified that he entered the combination to the lock because the police threatened to take him away.

Tatum testified that she was in the yard when the police officers arrived and one of them told her, in front of Wydell Jr., that he was going to take Wydell Jr. and his sister to the Audy home. Wydell Jr. then went up to the apartment. Tatum referred to the third floor as defendant’s apartment.

After the hearing, the trial judge denied defendant’s motion to suppress finding, among other things, that the police were given consent to enter.

In a jury trial, the State presented the testimony of Officers Strain and Schmidt which was similar to their testimony in the hearing on the motion to suppress. In addition to the drugs and weapons seized, Strain testified that they recovered a pharmaceutical scale and a beeper. Strain also testified that when they recovered the cannabis, defendant told the police that it was his. Defendant also said that the rocky white powder was cocaine but the other bags were fake. Further, defendant told the police that the Uzi submachine gun was a replica but the shotgun was real. Strain read part of his police report into evidence which stated that defendant admitted the seized contraband was his. Similarly, Schmidt also testified that defendant admitted that all of the seized items were his.

The State presented the testimony of a forensic chemist and a criminologist who testified that the plastic bags contained 1,657 grams of tetracaine, 43.4 grams of cocaine, and 1,846 grams of cannabis.

The parties stipulated that defendant had a 1980 Federal firearms conviction.

Defendant presented the testimony of Quenton Curtis, a fireman and police officer, who testified that Debbie Sherwood owned the building and lived in the third-floor apartment. Defendant lived at 1511 North Wieland. Curtis also testified that he knew the combination to the lock on the third-floor apartment and that he kept a uniform and ammunition there.

Dennis Murphy testified that he lived in the building. No one lived in the third-floor apartment, but it was used to store construction equipment and supplies. Murphy also testified that he knew the combination to the third-floor apartment and that defendant did not live there. Murphy, however, did not live in the building at the time defendant was arrested.

Aaron Feazell, defendant’s nephew, testified that he had previously lived in a basement apartment in the building. At the time he testified, Feazell was in jail awaiting trial for armed robbery. Feazell testified that Sherwood used the third-floor apartment for guests and that defendant did not live there. Feazell also had the combination to the third-floor lock and kept clothes in that apartment. Feazell testified that one of the weapons found in the apartment belonged to a former tenant.

Jennifer Rivers, defendant’s ex-wife, testified that defendant lived at 1511 North Wieland and she thought Sherwood lived in the third-floor apartment.

Defendant testified that at the time of his arrest, he lived at 1511 North Wieland. He admitted that he kept clothes in the third-floor apartment and he was there three to four times a week. He explained that several other people had the combination to the apartment for construction or business purposes. After he was arrested, the officers told him they would get a search warrant unless defendant told them they could search the apartment. Defendant admitted that he told the officers they could search. Defendant testified that he and Sherwood were the stockholders of a corporation that owned the apartment building. Defendant denied ever seeing the contraband that was seized from the apartment and denied that he told the police it was his. He recognized the rifle as belonging to a former tenant. Defendant told the officers that none of the seized items were his.

The jury found defendant guilty of possession of a controlled substance with intent to deliver, possession of cannabis with intent to deliver, unlawful use of weapons, and unlawful use of weapons by a felon.

Defendant filed a post-trial motion requesting a new trial and raising the issues that the State failed to prove him guilty beyond a reasonable doubt and that the State’s closing argument was prejudicial. Before a ruling on the motion, defendant filed a second post-trial motion requesting a new trial on the basis of newly discovered evidence. Defendant alleged that Milton Goodman would testify that the controlled substances which were found in the third-floor apartment were his. A hearing was held where Goodman testified, but the trial judge found his testimony unbelievable and denied defendant’s post-trial motions.

Defendant was sentenced to concurrent terms of six years and five years in prison and fined a total of $20,000. Defendant now appeals.

Opinion

Defendant argues that his motion to suppress should have been granted because the consent to enter was not voluntary. Defendant acknowledges that this issue was not properly preserved for review because his trial attorneys failed to raise it in his post-trial motions. He urges this court to consider the issue as plain error.

The failure to raise an objection at trial and in a post-trial motion results in a waiver of that issue on appeal (People v. Herrett (1990), 137 Ill. 2d 195, 561 N.E.2d 1), but plain errors affecting substantial rights may be considered on appeal even though they were not properly preserved for review (134 Ill. 2d R. 615(a)). The plain error rule allows a reviewing court to consider waived issues when the evidence at trial was closely balanced or when the error was so fundamental and of such magnitude that the defendant was denied a fair trial. Herrett, 137 Ill. 2d 195, 561 N.E.2d 1.

. Whether consent was voluntary is dependent on the totality of the circumstances. (People v. Casazza (1991), 144 Ill. 2d 414, 581 N.E.2d 651.) A reviewing court will not disturb the finding on a motion to suppress unless it was manifestly erroneous. (People v. Williams (1991), 147 Ill. 2d 173, 588 N.E.2d 983.) If the testimony on a motion to suppress is contradictory, the reviewing court should not substitute its assessment of the credibility of the witnesses for that of the trial judge. People v. Graham (1991), 214 Ill. App. 3d 798, 573 N.E.2d 1346.

In the hearing on defendant’s motion to suppress evidence, Officers Strain and Schmidt testified that Wydell Jr. unlocked the combination lock without being asked to do so. Sergeant Watzke testified that he told defendant, in Wydell Jr.’s presence, that the children would have to go to the police station or to the Audy home if no one would take care of them. Tatum testified that Watzke told her that if no one assumed responsibility for the children, they would have to go to the Audy home. Wydell Jr., testified that the officers threatened him directly that if he did not open the door, he would be taken to the Audy home.

In this case, the court did not err when it denied defendant’s motion to suppress because, viewing the totality of the circumstances, consent to enter was voluntary. The officers testified that Wydell Jr. entered the combination without being asked to do so. Tatum testified that Watzke told her the children would go to the Audy home; she did not state that Watzke threatened Wydell Jr. if he did not open the door. Only Wydell Jr. testified that he was directly threatened. It was the trial judge’s responsibility to assess the witnesses’ credibility and apparently he credited the police officers’ testimony and discredited Wydell Jr.’s testimony. Generally, the reviewing court should not substitute its judgment for that of the trial judge on issues of credibility. The testimony supported a finding that the consent to enter was voluntary.

Defendant also argues that his consent to search the apartment was not voluntary because the police told him they would get a search warrant if he did not consent. Assuming that the apartment was defendant’s home (see People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677), the testimony showed the consent to search was voluntary. Even though consent to search in the type of situation defendant describes has been found voluntary (People v. Magby (1967), 37 Ill. 2d 197, 226 N.E.2d 33), the testimony in this case shows that defendant offered to allow the police to search without obtaining a warrant while they were discussing obtaining a warrant amongst themselves. As a result, the testimony also supported a finding that the consent to search was voluntary.

Because there was no error in denying his motion to suppress, defendant’s argument that it amounted to plain error is without merit.

Defendant also argues that he was denied effective assistance of trial counsel because his attorneys failed to raise the motion to suppress issue in his post-trial motions.

Generally, to establish a claim of ineffective assistance of counsel, a defendant must show that the attorney’s performance was so defective that he was not functioning as counsel guaranteed under the sixth amendment and that the deficient performance prejudiced defendant to such an extent that he was denied a fair trial. (Strick land v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) When a defendant argues that the failure to raise an issue in a post-trial motion amounted to ineffective assistance of trial counsel, he must show that he was prejudiced to the extent that if the issue was raised he would have been granted a new trial. (See People v. Henderson (1990), 142 Ill. 2d 258, 568 N.E.2d 1234; People v. Alexander (1991), 212 Ill. App. 3d 1091, 571 N.E.2d 1075.) Defendant must show that he was substantially prejudiced in that the outcome probably would have been different had counsel been effective. People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

Here, defendant’s trial attorneys filed two post-trial motions but neither raised the issue that the motion to suppress was denied erroneously. To be successful in claiming that he was denied effective assistance of trial counsel, defendant must show that if the motion to suppress issue had been raised, he would have been granted a new trial. As discussed previously, the denial of the motion to suppress was not erroneous and, therefore, would not have resulted in a new trial had it been raised in a post-trial motion. The failure to raise the issue in a post-trial motion did not prejudice defendant and did not amount to ineffective assistance of counsel.

Lastly, defendant argues that the evidence at trial was insufficient to prove beyond a reasonable doubt that he constructively possessed the drugs and weapons seized from the apartment.

To support a finding of constructive possession, the State must prove that the defendant knew the contraband was present and that it was in defendant’s immediate and exclusive control. (People v. Crisantos (1991), 211 Ill. App. 3d 870, 570 N.E.2d 843.) Knowledge may be proved by evidence of defendant’s acts, declarations, or conduct from which it can be inferred that he knew the contraband existed in the place where it was found. (People v. Romero (1989), 189 Ill. App. 3d 749, 546 N.E.2d 7.) Constructive possession may be proved by showing that defendant controlled the premises where the contraband was found. People v. Maiden (1991), 210 Ill. App. 3d 390, 569 N.E.2d 120.

The elements of possession or knowledge are questions of fact for the jury and are rarely susceptible to direct proof. (Crisantos, 211 Ill. App. 3d 870, 570 N.E.2d 843.) The evidence at trial must be viewed in a light most favorable to the prosecution (People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344), and the reviewing court should not substitute its judgment for the jury’s when the evidence is conflicting (Crisantos, 211 Ill. App. 3d 870, 570 N.E.2d 843).

Defendant relies on People v. Wolski (1975), 27 Ill. App. 3d 526, 327 N.E.2d 308, where the court found that the State did not prove constructive possession of cannabis found in an apartment defendant shared with his brother because there was no corroborating evidence associating defendant with the contraband and other people had access to the premises. However, the present case is unlike Wolski. Although there was testimony here that other people had access to the apartment, there was no evidence that defendant shared the apartment with another person. Further, there was evidence here that defendant admitted ownership of the drugs and weapons.

Viewing the evidence presented at trial in a light most favorable to the State, Strain testified that when they discovered the cannabis, defendant admitted it was his. He also demonstrated knowledge of the cocaine and the weapons when he told the officers which items were real. Also, Strain and Schmidt testified that defendant told them all of the seized items were his. Further, Strain knew defendant lived there from a previous incident and even defendant’s son referred to the apartment as defendant’s home. Even though other people testified they had access to the apartment, the jury may not have found that testimony credible. The evidence was sufficient to find that defendant had constructive possession of the drugs and weapons seized in the apartment.

It should be noted that for this argument, defendant also relies on Goodman’s testimony at the post-trial hearing that the drugs found in the apartment belonged to him. However, Goodman did not testify at trial and his testimony in the post-trial hearing cannot be considered in reviewing whether the State proved constructive possession.

Affirmed.

JOHNSON and CAHILL, JJ., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL W. SCHAFF, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 90—3190
    Opinion filed June 10, 1993.
    Stephen M. Komie and Robert S. Bailey, both of Komie & Associates, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial in the circuit court of Cook County, defendant, Paul Schaff, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(b)(l)), and criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 13(a)(2)), of a seven-year-old boy. He was subsequently sentenced to a 10-year term in the Illinois Department of Corrections.

On appeal, defendant contends (1) the trial court’s supplemental instruction to the jury was coercive and that the trial court’s inquiry into the numerical breakdown of the jury during deliberations prejudiced him, and (2) the jury’s awareness of extraneous prejudicial information denied him a fair trial.

We affirm.

At 4:30 p.m. on June 25, 1990, the first day of deliberations, the jury sent the trial judge a note stating, “Please provide us with available transcripts.” The trial judge told the jury to continue with deliberations. The following day, June 26, 1990, at 8:05 a.m., the trial judge received another note from the jury which asked for the “legal description or legal definition of reasonable doubt.” The jury was again told to continue to deliberate. At 10:05 a.m., the jury sent another note inquiring as to options other than guilty or not guilty. The trial judge responded: “Please continue to deliberate.”

At 11:40 a.m., defense counsel made a motion for a mistrial because the jury was under the misapprehension that it had to reach a verdict. Judge Pope, substituting for the judge who presided at trial, conferred with the absent judge, who instructed him that the jury should deliberate into the lunch hour. The motion for a mistrial was denied.

After lunch, the court reconvened at 1:30 p.m. whereupon defense counsel again requested a mistrial. The jury was brought out and the foreperson stated that he did not believe it reasonably probable that a verdict could be reached. He also agreed that a further jury instruction would be of no assistance in arriving at a verdict. The trial court inquired into the number of ballots taken thus far and the foreperson indicated that six ballots had been taken. The trial court then asked for the numerical breakdown of the last ballot without providing an indication of which side was favored. The foreperson stated that the count was 7 to 5 and that further deliberations were not likely to result in a verdict.

At approximately 1:40 p.m., the trial judge gave the jury a supplemental instruction and asked the jury to resume deliberations. Defense counsel then made another motion for a mistrial. The motion was denied, and the trial judge stated that the jury was to deliberate until 3 p.m.

At 3:45 p.m., the judge who presided at trial had returned, and defense counsel requested a mistrial. The trial judge ordered that the jury be brought out so she could inquire as to its progress. The foreperson stated that the jury was still unable to reach a verdict. However, when asked if he felt that the jury was hopelessly deadlocked, he responded, “I would like another half-hour or so.” The trial judge then asked him for the last count without indicating which side was favored. He stated that the count was 11 to 1. The jury was ordered to continue to deliberate and the motion for a mistrial was denied.

At this point, the record reflects that the jury had deliberated from 2 p.m. to 9 p.m. on June 25, 1990, allotting 1½ hours for dinner. The next day, the jury commenced deliberations at approximately 8:15 a.m., and shortly before 4 p.m. it still had not reached a verdict. When the half-hour previously requested by the foreperson had expired, defense counsel made a motion for a mistrial. The trial judge denied the motion but stated, “If they have not reached a verdict by 4:30 p.m., I will declare a mistrial.”

At 4:22 p.m., the jury requested new verdict forms to fill out and defense counsel made another motion for a mistrial. The motion was denied and the verdict forms were tendered to the jury at approximately 4:30 p.m. About 10 minutes later, the jury was brought out and defendant was found guilty of aggravated criminal sexual assault and criminal sexual assault.

The trial judge delayed sentencing defendant and granted him a continuance to investigate the jury’s possible exposure to extraneous prejudicial information prior to the rendition of the verdict.

An evidentiary hearing was conducted on September 14, 1990, to determine whether the jury possessed unauthorized prejudicial information which may have affected the verdict. Defendant subpoenaed two jurors to testify at the hearing. Juror Virginia Beatty testified she informed the court, in writing, that some jurors may have been aware of similar charges pending against defendant during deliberations. At the end of the trial, she stated that another juror approached her and stated that she overheard something in the courtroom which suggested that there were additional charges against defendant. Beatty, testified that she believed the other juror’s extraneous knowledge “had not affected her [the juror’s] perception of the whole matter.”

Juror Janet Johnson testified that prior to the trial’s conclusion she overheard a child in the courtroom whisper to his mother, “ ‘Is this something I’ll have to go through[?],’ something to that effect.” After the trial ended, she spoke with another juror who overheard the same statement. Johnson testified that nothing she overheard was discussed during deliberations and that she did not associate the statement’s significance with defendant. She further stated that she did not know if the statement even related to defendant.

Following argument on both sides and after explicitly careful consideration, the trial court denied defendant’s motion for a new trial. He was sentenced to a 10-year term of imprisonment in the Illinois Department of Corrections.

On appeal, defendant initially maintains that the trial court’s supplemental instruction was coercive and prejudiced him. After the jury had taken six ballots, the foreperson expressed that he did not foresee a verdict resulting from continued deliberations. The trial court then gave the jury the following instruction:

“The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous. It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberation, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous, but do not surrender because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. You are not partisans. You are the judges, judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.”

The jury was directed to resume deliberations.

In People v. Prim (1972), 53 Ill. 2d 62, our supreme court promulgated an instruction to be given to a deadlocked jury in order to facilitate the arrival at a verdict. The instant instruction differs from the Prim instruction in only one respect. Here, the instruction omitted the phrase, “But do not surrender your honest conviction as to the weight or effect of evidence ***.” (Prim, 53 Ill. 2d at 76.) Defendant’s assertion of coercion is grounded in this omission. He postulates that the trial court’s failure to recite the precise Prim language resulted in the jury’s arrival at an unduly pressured verdict. We disagree.

The instruction, while admittedly not identical to the one set out in Prim, was wholly free of coercion. The trial court’s instruction cautioned the jurors, similar to the verbatim Prim instruction, not to abandon their beliefs simply to return a verdict. This is the crucial part of the instruction. We are manifestly aware of the impropriety of the emergence of a verdict from an unjustly influenced jury. After a careful review of the language of the instruction, we find no abuse of discretion.

Further, we accord due consideration to the three hours which transpired between the time the instruction was given and the next time the jury was summoned to the courtroom. During that interval, the jury had not reached a verdict. While not dispositive of the issue, we believe that the failure of the jury to reach a verdict three hours after being given the supplemental instruction is some evidence that the instruction failed to improperly pressure the jury.

Defendant also opines that he was prejudiced by the trial court’s two inquiries into the numerical division of the jury. “While it is error for the trial court to inquire into the numerical division of the jury [citation], it is not per se reversible error in Illinois.” (People v. Griggs (1984), 126 Ill. App. 3d 477, 481-82.) The trial court inquired as to the numerical breakdown, which was 7 to 5, before the jury was given a supplemental instruction at approximately 1:40 p.m. The trial court then ordered the jury to continue with deliberations.

At about 3:45 p.m., the trial court asked the foreperson if he felt that the jury was hopelessly deadlocked, and the foreperson responded that he “would like another half-hour or so.” The trial court then requested the numerical division of the jury without inquiring as to which side was favored. The count was 11 to 1. The jury was directed to continue with deliberations. At 4:38 p.m., the jury returned guilty verdicts.

We believe that the trial judge’s inquiries to the jury were not prejudicial. “Whether error is harmless or prejudicial depends upon the facts of the case.” (People v. Golub (1929), 333 Ill. 554, 561.) Here, there was no threat of sequestration, the supplemental instruction was not coercive, and no time limit was placed on the jury for reaching a verdict. Furthermore, as the trial judge was never aware of which side the jury favored, we believe the inquiry was hannless. People v. Logston (1990), 196 Ill. App. 3d 30, 37.

Belatedly, the request for the numerical breakdown alone does not constitute prejudice. Instead, defendant must actively demonstrate that this request hastened or interfered with the verdict. (People v. Griggs (1984), 126 Ill. App. 3d 477, 482; see People v. Green (1980), 91 Ill. App. 3d 1085.) Defendant has failed to make this demonstration. Upon examination of the numerical breakdown inquiries correlative to the totality of the court’s conduct (People v. Sanchez (1981), 96 Ill. App. 3d 774, 779), we find no prejudice.

Second, defendant contends that the jury’s awareness of other similar charges against him precluded his right to a fair trial.

After the trial judge was apprised of the possibility that the jury was improperly influenced by information not in evidence, she conducted a presentencing, evidentiary hearing to determine whether jurors were tainted by unauthorized information which affected their perception of the case.

Defendant subpoenaed two jurors to testify at the hearing and, after their testimony concluded, the trial judge was convinced that defendant’s right to a fair trial was preserved. Juror Virginia Beatty testified that another juror told her of the similar charges against defendant after the trial had ended. She stated that she did not believe the other juror considered those charges during deliberations. Juror Janet Johnson testified that, in the courtroom, she overheard a boy ask his mother, “Is this something I’ll have to go through[?]” or words to that effect. She stated that she did not discuss this statement with any members of the jury prior to reaching a verdict. She also stated that she did not consider the statement during deliberations and that she did not even know if the statement pertained to defendant. The trial judge characterized the boy’s statement as “pretty innocuous” and was generally satisfied that the jury was not prejudiced.

The determination of whether the jury was influenced by extraneous information is entirely within the province of the trial court which must infer, in view of the instant facts and circumstances, whether a fair trial has been impeded. This finding will hot be disturbed absent an abuse of discretion. (People v. Malmenato (1958), 14 Ill. 2d 52, 63.) The testimony given at the evidentiary hearing clearly establishes that the jury was not improperly influenced by extraneous information. One juror was not even aware of the information until after the conclusion of the trial and the other simply overheard a statement from a boy to his mother in the courtroom which did not facially bear any relation to defendant. At the hearing, defendant did not offer any additional evidence of prejudice.

Based on the evidence presented we do not believe the trial judge abused her discretion in finding that defendant’s right to a fair trial was safeguarded. “To warrant a reversal, it must reasonably appear that at least some of the jurors have been so influenced or prejudiced that they cannot be fair and impartial.” (People v. Collins (1979), 71 Ill. App. 3d 815, 823.) We believe that the evidence convincingly establishes the jury’s impartiality The trial court’s resolution of this issue was not improper and was in complete accord with the evidence adduced.

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

Affirmed.

JIGANTI, P.J., and CAHILL, J., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    McCRACKEN AND McCRACKEN, P.C., Plaintiff-Appellee, v. EUGENE HAEGELE, Defendant (Allen Schoeneman, Defendant-Appellant).
    First District (4th Division)
    No. 1 — 91—1994
    Opinion filed June 10, 1993.

      Kiesler & Berman, of Chicago (R. Howard Jump and David A. Wells, Jr., of counsel), for appellant.

      James L. Fox, Peter J. Karabas, and James W. Fessler, all of Abramson & Fox, of Chicago, for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, McCracken & McCracken, P.C. (McCracken), brought an action against the defendants, Allen Schoeneman and Eugene Haegele, to recover attorney fees pursuant to written contracts whereby McCracken represented the defendants in obtaining property tax reductions. Following a trial without a jury, the court entered a judgment in favor of McCracken and against Schoeneman in the amount of $17,244.75. When Haegele failed to appear for trial, the court entered judgment on the pleadings against him for $34,527.84 plus costs; Haegele has not appealed from the judgment against him. Schoeneman has appealed, contending that the trial court erred in refusing to set aside the contingent fee contract on the grounds of undue influence and in barring evidence concerning the reasonableness of the fee. Schoeneman also contends that the trial court’s finding that he entered into the fee contract in his individual capacity rather than as president of a corporation was against the manifest weight of the evidence. Schoeneman further contends that the trial court erred in refusing to dismiss the action based on Mc-Cracken’s alleged repudiation of its claim on the written fee contract.

On April 12, 1986, Schoeneman and five individuals known collectively as the Class 4 partnership, in conjunction with Haegele, purchased hotel property at 3010 North Mannheim Road in Franklin Park, Elinois. Legal title to the property was subsequently transferred in trust, with Haegele retaining a 50% beneficial interest, and Schoeneman retaining 50% on behalf of the Class 4 partnership. On December 26, 1986, Franklin House, Inc., was formed to manage the hotel property. Schoeneman was the president of the corporation.

On February 4, 1987, Haegele entered into a written contingent fee agreement with McCracken. McCracken instituted proceedings before the Cook County assessor to seek reduction in the assessed valuation of the property for the 1986 tax year. The fee agreement provided that Haegele would pay McCracken one-third of any tax savings. The assessor reduced the assessed valuation by $756,514, and McCracken billed Haegele for $32,076, which was one-third of the tax savings resulting from the reduction. Haegele did not pay McCracken’s fee. This matter subsequently resulted in the judgment against Haegele.

On October 26, 1987, Schoeneman, acting for the Class 4 partnership, purchased Haegele’s 50% interest in the property. Subsequently, David McCracken, president of McCracken & McCracken, P.C., called Haegele to discuss challenging the assessed valuation of the property for the 1987 tax year. Haegele informed McCracken that he had sold his interest in the property and suggested that McCracken call Schoeneman. McCracken did so, and on November 17, 1987, Schoeneman and McCracken entered into the contingent fee agreement which is at issue here. The agreement provided that McCracken would receive a fee of one-fourth of any tax savings realized from an assessment reduction for the 1987 tax year. The written fee agreement was sent to “Mr. Allen Schoeneman do Franklin House Hotel.” Schoeneman signed the contract, “Allen Schoeneman pres.”

Thereafter, McCracken filed a complaint with the assessor and secured a reduction in the assessed valuation of $567,236 resulting in a tax savings of $72,152. McCracken then sent a bill to Schoeneman for $17,950, which was not paid.

McCracken filed a complaint seeking damages of $32,076 plus costs against Haegele for the 1986 tax work and $17,950 plus costs against Schoeneman for the 1987 tax work. Counts I and II were directed against Haegele alleging breach of the February 4, 1987, contingent fee agreement and an account stated. Haegele answered, admitting the allegations of the complaint. Haegele then counterclaimed against Schoeneman for indemnification. When Haegele subsequently failed to appear for trial, the court entered a default judgment against him in the amount of $34,527.84 and dismissed his counterclaim. Haegele did not appeal.

Counts III, IV and V of the complaint were directed against Schoeneman, alleging breach of the November 17, 1987, contingent fee contract, account stated and unjust enrichment. The breach of contract count alleges that Schoeneman, as the beneficial owner of the property, was liable to pay the real estate taxes and entered into a contingent fee contract with McCracken to secure a reduction in the assessed valuation of the property for the 1987 tax year. The complaint further alleges that “[t]he fees charged by McCracken were fair, reasonable and commensurate with fees charged by other Chicago law firms for similar services.” Schoeneman’s answer essentially denied the allegations of the complaint and specifically alleged that “the fees charged were excessive, inappropriate, unreasonable, unconscionable, and bear no relationship to the work actually performed.”

The answer did not allege a defense based on undue influence. However, prior to trial, Schoeneman filed a “Motion to Set Aside Attorney Client Fee,” alleging that McCracken’s fees were excessive and that the contingent fee agreement was obtained through Mc-Cracken’s use of undue influence. McCracken then made a motion in limine to bar any evidence regarding the reasonableness of the fee agreement, maintaining that it was negotiated and executed at arm’s length and that the fees were unambiguously set forth and reasonable. Finding that the contingent fee contract was entered into “between two adults,” the court denied Schoeneman’s motion and granted the motion in limine.

During trial, Schoeneman was permitted to make an offer of proof as to the unreasonableness of McCracken’s fee. David Mc-Cracken testified that he probably spent “a few hours,” less than five, on the matter. Robert Behrens, an attorney employed by McCracken, testified that he spent between 10 and 20 hours on the project. Also, evidence was presented that Franklin House, Inc., retained attorney Patrick Quinn to obtain a reduction of the 1988 assessment. Quinn obtained a reduction of $309,002 and had charged a fee of $7,500. The court refused further evidence on this matter, but as an offer of proof, Schoeneman testified that Quinn had to appear before the tax appeals board.

At trial, Schoeneman testified that he signed the contingent fee agreement in his capacity as president of Franklin House, Inc. He stated that he did not pay McCracken’s fee because he thought it was too high and because the hotel was in financial trouble. He testified that at one point, he and McCracken agreed to settle the 1986 and 1987 attorney fees for $15,000. However, when Schoeneman sent McCracken a check for $15,000, McCracken refused to accept it. On cross-examination, Schoeneman stated that Franklin House, Inc., never held an ownership interest in the property and that the partnership was obligated to pay the property taxes. After purchasing Haegele’s interest, Schoeneman held 100% of the beneficial interest in the land trust as agent for and partner of the partnership. In a deposition, Schoeneman stated that he “never knew” or met with David McCracken and spoke with him “only by phone,” having conversed with him a few times in the previous two years. Prior to the time he signed the fee agreement, tax matters for the property had been handled by Haegele, who was an accountant. Schoeneman admitted retaining McCracken to reduce the 1987 taxes on the property and stated that the reason McCracken’s fee for the successful tax reduction was unpaid was because Franklin House, Inc., had “no money.”

McCracken testified that Schoeneman never requested him to draft the contingent fee agreement in the name of Franklin House, Inc., and that it was only after the commencement of the litigation that he learned that Franklin House, Inc., existed. Apparently, McCracken’s position was that he believed he was dealing with Schoeneman in his capacity as a partner in the partnership which owned the property.

At one point during his testimony, David McCracken stated that he was not suing on the written contract of February 4, 1987, but was suing on an oral contract made prior to that time, the evidence of which was the letter dated February 4, 1987. The portion of the complaint pertaining to the February 4, 1987, contract was directed against Haegele only. Schoeneman subsequently made a motion to dismiss McCracken’s lawsuit on the grounds that contingent fee agreements must be in writing. The motion was denied.

Schoeneman first contends that the trial court erred in failing to recognize the presumption of undue influence based on the attorney-client relationship that existed with Schoeneman and his then partner, Haegele, prior to the execution of the November 17, 1987, contingent fee contract. McCracken was hired by Haegele in February of 1987 to obtain a reduction of the 1986 assessment. McCracken responds that no attorney-client relationship had been established with Schoeneman prior to the execution of. the November 17, 1987, fee contract. The trial court found that no attorney-client relationship existed and accordingly did not apply the presumption of undue influence.

We do not believe that the record supports the trial court’s finding that no prior attorney-client relationship existed.

The record shows that Haegele and Schoeneman were partners in the ownership of the property during the 1986 representation, until Haegele sold his interest. Although Schoeneman left the tax matters to be handled by Haegele, Schoeneman was at least aware that an attorney had been hired to challenge the 1986 taxes. There is no evidence that Schoeneman ever objected to the retention of McCracken or that he did not intend to be bound by the 1986 tax reduction. It therefore appears that Schoeneman, by his conduct, at least ratified Haegele’s retention of McCracken and that, through Haegele, had an attorney-client relationship with him prior to the November fee agreement.

The question then becomes what effect this prior relationship has on the instant lawsuit. In Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872, the supreme court recognized that a presumption of undue influence arises when an attorney enters into a transaction with a client during the existence of the fiduciary relationship. However, the strength of the presumption and the amount of proof required to overcome it are not determined by any fixed rule but rather depend upon the circumstances of each case. (Franciscan Sisters, 95 Ill. 2d at 463, 448 N.E.2d at 877.) In Franciscan Sisters and also in Klaskin v. Klepak (1989), 126 Ill. 2d 376, 386-87, 534 N.E.2d 971, the court stated that a strong presumption of undue influence arises when an attorney benefits from a transaction with a client. Where the presumption is particularly strong, it must be rebutted by clear and convincing evidence. Klaskin, 126 Ill. 2d 376, 534 N.E.2d 971.

Franciscan Sisters and Klaskin both involve situations in which a strong presumption of undue influence was found to exist. In Franciscan Sisters, an attorney who drafted a will for his client stood to receive a substantial legacy under the terms of the will. In Klaskin, an attorney who represented a client in the purchase of a condominium unit was subsequently named as a contingent beneficiary of the land trust in which the condominium was placed. In those cases the supreme court found that a strong presumption of undue influence arose because the attorney benefitted from the transaction with the client.

In the instant cause, McCracken did not benefit in any way other than to receive a fee, which occurs in all attorney-client transactions. In our view, the circumstances of the case at bar do not support a strong presumption of undue influence. The evidence presented at trial shows that Schoeneman had very little contact with Mc-Cracken prior to contracting with him in November 1987. Schoeneman testified that before that time tax matters for the property had been handled by Haegele, who was an accountant. Schoeneman “never knew” McCracken, having spoken with him only once or twice by telephone in Haegele’s office. Furthermore, when McCracken contacted Schoeneman about the 1987 tax challenge, Schoeneman was actually able to negotiate a reduction in McCracken’s customary fee. The contract called for McCracken to receive one-fourth of the tax savings rather than his customary one-third. At his deposition, Schoeneman stated that he did not dispute the amount of the fee but did not pay it because the project lacked money. Although the trial court did not consider the presumption of undue influence, we believe that the evidence at trial was sufficient to rebut the presumption as a matter of law.

Schoeneman next contends that even absent the presumption of undue influence, the court erred in granting McCracken’s motion in limine to exclude evidence concerning the reasonableness of the fee. Schoeneman argues that the charging of an excessive fee was prohibited by disciplinary Rule 2 — 106 of the Code of Professional Responsibility (87 Ill. 2d R. 2 — 106) and therefore constituted a defense to McCracken’s action to enforce the contingent fee contract. McCracken responds that evidence concerning the reasonableness of a fee is irrelevant where an attorney and a client enter into an express contract, and that Schoeneman may raise the excessiveness of a fee only in a disciplinary proceeding.

Rule 2 — 106 provides in pertinent part:

“(a) A lawyer shall not enter into an agreement for, charge, or collect an illegal or excessive fee.
(b) A fee is excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood that the acceptance of the particular employment would preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature arid length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.” 87 Ill. 2d R. 2-106.

In Maksym v. Loesch (7th Cir. 1991), 937 F.2d 1237, an attorney sued his client to recover on a contract for attorney fees. One of the defenses raised by the client was that the fee was excessive and violative of Rule 2 — 106. The seventh circuit, applying Illinois law, found that a contract for professional services can be rendered unenforceable by being found to be contrary to public policy. The court stated that although not every violation of the rules of professional ethics will make a lawyer’s contract with his client voidable per se, “conduct which violates both professional ethics and contract law, such as the charging of exorbitant fees by a lawyer, is not placed beyond the reach of contract law because it violates professional standards as well.” (Maksym, 937 F.2d at 1244.) In Pocius v. Halvorsen (1963), 30 Ill. 2d 73, 83, 195 N.E.2d 137, the Illinois Supreme Court held that contingent fee contracts are always subject to the supervision of the courts, whether or not they are entered into during the attorney-client relationship, and will be enforced as written only if they are reasonable.

In the case at bar, Schoeneman raised the excessiveness of the contingent fee as a defense to McCracken’s action on the contract. We believe that the court was required to consider evidence concerning the reasonableness of the fee and that it erred in granting McCracken’s motion in limine. For this reason, we believe it is necessary to remand the cause solely for a determination on the reasonableness of the fee.

Schoeneman next contends that the trial court’s finding that McCracken intended to deal with Schoeneman in his personal capacity rather than on behalf of Franklin House, Inc., was against the manifest weight of the evidence. The signature of a corporate officer may be sufficient to bind the corporation even if the officer fails to indicate his corporate affiliation if it was the intention of the parties to bind the corporation. (People ex rel. City of Prospect Heights v. Village of Wheeling (1986), 147 Ill. App. 3d 838, 840, 498 N.E.2d 601.) In determining whether it was the party’s intention to bind the corporation principal or the purported agent individually, all the facts and circumstances surrounding the making of the contract are properly considered by the court. (People ex rel. City of Prospect Heights, 147 Ill. App. 3d 838, 498 N.E.2d 601.) The intention of the parties on this issue is a question of fact (Wottowa Insurance Agency, Inc. v. Bock (1984), 104 Ill. 2d 311, 316, 472 N.E.2d 411) and, as such, is best resolved by the trial court (Commonwealth Edison Co. v. Department of Revenue (1989), 179 Ill. App. 3d 968, 975, 535 N.E.2d 30). The trial court’s factual findings will not be disturbed unless contrary to the manifest weight of the evidence. Commonwealth Edison, 179 Ill. App. 3d 968, 535 N.E.2d 30.

In the case at bar, the trial court found that Schoeneman intended to contract in an individual capacity, and these findings do not appear to be against the manifest weight of the evidence. McCracken testified that he had never heard of Franklin House, Inc., until the instant lawsuit. Neither the February 4, 1987, nor the February 17, 1987, contract was drafted in the name of Franklin House, Inc. Moreover, by Schoeneman’s own admission, Franklin House, Inc., had no ownership interest in the property or its contents and no legal obligation to pay taxes on it.

Schoeneman’s final contention is that the trial court should have granted his motion to dismiss after McCracken allegedly “repudiated” his cause of action while testifying at trial. Specifically, during his testimony, McCracken stated that he was not suing on the written contract of February 4, 1987, but was suing on an oral contract made prior to that time, the, evidence of which was the letter dated February 4, 1987. Schoeneman then moved to dismiss the claim as to this contract, arguing that the contract was invalid as a matter of law because contingent fee agreements must be in writing. See 87 Ill. 2d R. 2 — 106(c)(2).

We do not believe that David McCracken’s alleged repudiation of the February 4, 1987, contract had any effect at all on McCracken’s claim against Schoeneman, which is based on a different contract. Therefore, the court acted properly in denying the motion to dismiss.

Accordingly, the judgment of the circuit court is affirmed in part and reversed and remanded in part for proceedings consistent with this opinion.

Affirmed in part; reversed and remanded in part.

JOHNSON and CAHILL, JJ., concur.


text:
    JACQUELINE PATCH, Indiv. and as Adm’r of the Estate of Charles P. Patch, Deceased, Plaintiff-Appellee and Cross-Appellant, v. GRANGE J. GLOVER et al., Defendants (Jackson Park Hospital, Defendant and Cross-Appellee; Pratap C. Kumar, Defendant-Appellant and Cross-Appellee).
    First District (4th Division)
    No. 1 — 91—2252
    Opinion filed June 10, 1993.

      Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Kevin J. Glenn, Kimberly A. Wilkins, and Edward A. Wilkins, of counsel), for appellant.
    Laser, Schostok, Kolman & Frank, of Chicago (Stephen J. Schostok and Michael Lee Tinaglia, of counsel), for appellee Jacqueline Patch.
    Peterson & Ross, of Chicago (James M. Bream, Thomas A. Morrissey, and Sandra L. Wright, of counsel), for appellee Jackson Park Hospital.
   JUSTICE HOFFMAN

delivered the opinion of the court:

On October 10, 1981, Charles P. Patch fell from the second-floor landing of a building at 7009 S. Chappel, in Chicago, Illinois. As a result, Patch was injured and taken to Jackson Park Hospital (Jackson Park), where he was treated by Dr. Pratap Kumar and Dr. Mikal Ramadan. Patch died in the hospital two days later. He was.survived by his wife, Jacqueline Patch, and three adult children, Jacqueline Patch Whiteside, Terry Patch, and Philip Patch.

Plaintiff, Jacqueline Patch, as administrator of Patch’s estate, brought suit against Jackson Park, Dr. Kumar, and the owners and managers of the building where Patch fell: Grange J. Glover, Anna M. Glover, John J. Sarac, Elizabeth Sarac, and Orner, Shane & Rizner; Inc. (collectively referred to as the real estate defendants). Count I of plaintiff’s second-amended complaint was a wrongful death action against the real estate defendants alleging that they were negligent in maintaining the stairway from which Patch fell. Count II, also a wrongful death action, sought recovery from all defendants for the medical negligence of Dr. Kumar and Jackson Park through its employee, Dr.. Ramadan. Count III was a survival action against all defendants.

Jackson Park filed a third-party complaint against Dr. Ramadan for indemnity and contribution. The indemnity claim was severed from the underlying action; the contribution claim was dismissed.

Plaintiff settled her claims against the real estate defendants for $75,000. Pursuant to the real estate defendants’ motion, the trial court found that the settlement was in good faith under section 2 of the Contribution Act (Ill. Rev. Stat. 1991, ch. 70, par. 302) and dismissed them.

After the settlement, plaintiff filed a third-amended complaint against Jackson Park and Dr. Kumar. Count I was a wrongful death action and count II was a survival action. Both counts were based on medical negligence.

The case was tried before a jury. The trial court refused plaintiff’s tendered instruction relating to the survival action and, in essence, granted defendants a directed verdict on that count. The jury found in favor of plaintiff and against Dr. Kumar on the wrongful death action and assessed plaintiff’s damages at $50,000. The jury also found in favor of Jackson Park and against the plaintiff. The trial court entered judgment on the verdict.

Dr. Kumar moved to reduce the judgment entered against him claiming a right to a setoff under section 2(c) of the Contribution Act (Ill. Rev. Stat. 1991, ch. 70, par. 302(c)) due to plaintiff’s settlement with the real estate defendants. The trial court denied Dr. Kumar’s motion and he appeals from that order.

Plaintiff filed a post-trial motion seeking a variety of relief ranging from judgment notwithstanding the verdict to a new trial on the issue of damages only. Plaintiff’s motion was denied and she now appeals.

Opinion

For his part, Dr. Kumar claims the trial court erred in failing to grant him a setoff in the amount of the real estate defendants’ settlement with plaintiff.

For her part, plaintiff makes the following assignments of error: (1) the trial court excluded expert testimony on the value of loss of society; (2) the court excluded the alleged admissions in Jackson Park’s third-party complaint against Dr. Ramadan; (3) the court allowed evidence that Patch was intoxicated when he was admitted to the hospital; and (4) the court denied her motion for a new trial on damages.

We will first address plaintiff’s arguments.

Plaintiff contends that the trial court erred when it barred her economics expert, Stanley Smith, from offering testimony as to the value of the loss of society sustained by plaintiff and the children on Patch’s death. Prior to trial, both Dr. Kumar and Jackson Park filed motions in limine to bar plaintiff from eliciting testimony from Smith as to the value of the loss of Patch’s ability to enjoy life and the value of the loss of society sustained by reason of his death.

Prior to granting the motions, a voir dire examination of Smith was conducted. Smith testified he was an economist retained by plaintiff to render opinions on certain elements of damage sustained as a consequence of Patch’s death: (1) the value of wages and fringe benefits lost; (2) the value of the loss of Patch’s ability to enjoy the full value of life; and (3) the value of the loss of Patch’s society and companionship. Defendants stipulated to Smith’s expertise to testify as to the value of lost wages and fringe benefits. As to Smith’s opinions relating to Patch’s loss of his ability to enjoy the full value of life, because the jury only considered plaintiff’s wrongful death claim, any damages sustained by Patch personally are irrelevant. The measure of damages recoverable in a wrongful death action is limited to the pecuniary loss to the spouse and next of kin of the decedent. (Saunders v. Schultz (1960), 20 Ill. 2d 301, 170 N.E.2d 163.) Our analysis is restricted to Smith’s opinions on the value of the loss of society sustained by plaintiff and the children.

Smith testified during his voir dire examination that, in his opinion, the value of the loss of society and companionship sustained by Patch’s surviving family was about $819,000. He arrived at this figure through what he termed was the “willingness to pay methodology.” Smith stated that by examining available data, he concluded, based on the amount of money that American society spends on average to save lives, the “statistically average” person, a 31-year-old with a life expectancy of 45 more years, has a value to society of $2.3 million. That net figure excludes the amount of money the person would have earned in his lifetime. According to Smith, most of the $2.3 million nonmonetary value of the statistically average person is captured by those people who have a direct, palpable, and immediate relationship with the individual. The group includes the spouse, children, siblings, parents, grandparents, aunts, “close family[,] loved ones,” and close friends. To this gross value figure, Smith applied a factor based on the decedent’s remaining life expectancy, as determined by sex, race, and age at the time of death, to arrive at the value of the loss of society sustained in any given case. Smith admitted, albeit reluctantly, that as applied, the value of the loss of society sustained by the survivors of any person of the same sex, race, and age as Patch would be the same.

The admission of evidence is a matter largely within the discretion of the trial court, and its rulings will not be disturbed on appeal absent an abuse of discretion. (Jackson v. Pellerano (1991), 210 Ill. App. 3d 464, 569 N.E.2d 167.) Plaintiff argues that the trial court abused its discretion when it barred Smith’s testimony on the value of the loss of society. In support of this argument, plaintiff contends that Smith’s opinions are based on accepted economic principles and were both relevant and admissible. Assuming, arguendo, that Smith’s opinions on the value of loss of society are, in fact, based on accepted economic principles, we will analyze their relevance and admissibility.

The parties do not dispute that loss of society is a component of pecuniary injuries recoverable in a wrongful death action. (Johnson v. Village of Libertyville (1986), 150 Ill. App. 3d 971, 502 N.E.2d 474.) To be relevant, evidence must establish a fact of consequence to the determination of the pending action; it must be both material and have probative value. (In re Elias (1986), 114 Ill. 2d 321, 499 N.E.2d 1327.) Even if evidence is arguably relevant it may still be excluded if it would confuse the issues or tend to mislead the jury. See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §403.1, at 169 (5th ed. 1990).

Recovery under the Wrongful Death Act (Ill. Rev. Stat. 1991, ch. 70, par. 1 et seq.) is circumscribed both quantitatively and qualitatively. The Act limits recovery to the pecuniary injuries suffered as a consequence of the decedent’s death (the quantity) by the decedent’s spouse and next of kin (the quality). In a variety of contexts, courts of review in this State have held that damages for loss of society are difficult to estimate exactly and no standard of value applies; rather, their assessment is committed to the sound discretion of the jury as to what is reasonable under the circumstances of any given case guided by its observations, experience, and sense of fairness. (See Drews v. Gobel Freight Lines, Inc. (1991), 144 Ill. 2d 84, 578 N.E.2d 970; Elliott v. Willis (1982), 92 Ill. 2d 530, 442 N.E.2d 163; Tonarelli v. Gibbons (1984), 121 Ill. App. 3d 1042, 460 N.E.2d 464; Bohnen v. Wingereid (1979), 80 Ill. App. 3d 232, 398 N.E.2d 1204.) To be sure, expert testimony is admissible when it will assist the jury even as to matters within the common knowledge of the average juror. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246; Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 273 N.E.2d 809.) But when the expert’s testimony does not aid the jury to determine the questions at issue, it will not be admitted. Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90, 382 N.E.2d 1201.

We believe that Smith’s proffered testimony on the value of the loss of society was marginally relevant, potentially confusing, and misleading. The jury’s task was to assess the value of the loss of society sustained by plaintiff and the children as Patch’s spouse and next of kin. Smith’s valuations speak to the noneconomic societal value of the statistically average person, not Patch. The only attributes of Patch that entered into Smith’s calculations were his age, sex, and race.

Smith admits that the value society places on the nonmonetary contribution of the statistically average person inures to the benefit of those who have an immediate relationship with the person. Smith includes within this group the person’s family and close friends. But the Wrongful Death Act provides a recovery to a clearly defined group: the decedent’s spouse and next of kin. When, as in this case, the decedent is survived by his children, the group of beneficiaries under the Act does not include the decedent’s parents, siblings, aunts, or uncles. And under no circumstances does the group of beneficiaries include the decedent’s close friends. The type of evidence that Smith offered would, out of necessity, provoke an extended line of inquiry into Patch’s relationships with family members and friends, who are not entitled to recover under the Act, so that their loss of society could be factored out of the gross value of the loss of society. All of which would serve no purpose other than to distract the jury from its real task, which is to apply their collective common sense to assess the value of the society lost by plaintiff and the children. Moreover, Smith’s testimony on this issue would mislead the jury into believing the false notion that the distinct and personal relationship that one has with his wife and children has commercial value which can be determined by a comparison to the value that society places on the non-monetary contributions of the statistically average person. It is our belief that the type of evidence that plaintiff sought to introduce through Smith’s testimony would be the antithesis of a reasonable and practical consideration of the fair and just compensation for the loss of society suffered by the spouse and next of kin of a decedent under the peculiar facts of any given case. The cornerstone of our civil justice system is the faith that we place in our juries and the notion that when properly instructed they will, by the impartial exercise of their collective conscience and sound judgment, determine reasonable compensation for noneconomic damages. Our juries have been admirably discharging this difficult task for over 200 years without the aid of experts, and we believe that they should continue to do so. Hence, we agree with the court in Fetzer v. Wood (1991), 211 Ill. App. 3d 70, 569 N.E.2d 1237, when it found that juries are in a better position to decide what is fair and just compensation for loss of society without imposing an expert’s theory as to value. As a consequence, we find that the trial court did not abuse its discretion when it excluded Smith’s testimony on the value of the loss of society sustained on Patch’s death.

Plaintiff next argues that it was error for the trial court to bar her from introducing into evidence Jackson Park’s third-party complaint against Dr. Ramadan as an admission of the facts alleged therein. Plaintiff contends that because the allegations against Dr. Ramadan in the third-party complaint are “complete, unequivocal and unconditional” and, further, because the allegations are not phrased hypothetically or in the alternative, they should have been admitted as admissions on the part of the pleader, Jackson Park. We disagree.

In its answers to plaintiff’s first-amended and second-amended complaints, Jackson Park denied the allegations that its employees, including Dr. Ramadan, were negligent in treating Patch. Subsequently, Jackson Park filed a third-party unverified complaint against Dr. Ramadan for indemnity and contribution. Prior to trial, Jackson Park sought and received an in limine order which barred plaintiff from introducing evidence of the third-party complaint or from making reference to its allegations in front of the jury.

Actions for indemnity and contribution are, by their very nature, contingent claims; each is contingent on the party seeking the relief first having been found liable in tort to the plaintiff in the underlying action. Therefore, to determine whether a complaint seeking indemnity or contribution is an alternative pleading, the court must consider the pleadings between the party seeking indemnity or contribution and the plaintiff in the underlying action. If the party seeking indemnity or contribution has denied in its answer to the underlying complaint the very same facts that form the basis of its claim for indemnity or contribution, then the allegation of those facts, regardless of whether they are phrased hypothetically or in the alternative, are alternative in nature and cannot be used in the underlying action as admissions against the pleader. See Tuttle v. Fruehauf Division of Fruehauf Corp. (1984), 122 Ill. App. 3d 835, 462 N.E.2d 645; Ill. Rev. Stat. 1991, ch. 110, par. 2 — 613(b).

Trial judges have a duty to examine the pleadings in sequence of issue formation to prevent distorting an alternative pleading into an admission or converting a contingent allegation into an unconditional one. The trial judge in this case discharged that duty ably, and we concur in his conclusion that Jackson Park’s third-party complaint against Dr. Ramadan was pled in the alternative to its answer to plaintiff’s complaint and, as such, could not be introduced as an admission of the facts alleged therein.

Plaintiff also argues that the trial court erred when it allowed evidence that Patch was intoxicated when he was admitted to the hospital because it was irrelevant and highly prejudicial. It is true, as plaintiff argues, that evidence of a patient’s intoxication in a medical negligence action is irrelevant and inflammatory when it has no bearing on the issue of whether the defendants breached the standard of care. (Jackson v. Pellerano (1991), 210 Ill. App. 3d 464, 569 N.E.2d 167.) But the corollary to that proposition is that evidence of a patient’s intoxication is both relevant and admissible in a medical negligence action when intoxication impacts on the question of a breach of the standard of care.

In her third-amended complaint, plaintiff charged that Dr. Kumar breached the standard of care in treating Patch by, inter alia, failing to diagnose or treat the condition of a lacerated and injured spleen and kidney. In support, plaintiff offered the testimony of her expert witness, Dr. Richard Printz, who opined that Dr. Kumar deviated from the standard of care because he failed to recognize that Patch was bleeding internally. Dr. Printz further opined that if an operation had been performed on Patch earlier, he could have survived.

Dr. Kumar countered with the testimony of his expert witness, Dr. Coleman Seskind, who testified that in his opinion Dr. Kumar’s treatment of Patch conformed to the applicable standard of care. In support, Dr. Seskind testified that at the time Patch was hospitalized he was acutely intoxicated, which complicated a diagnosis of his condition. It affected Patch’s ability to give an accurate history, to tell Dr. Kumar how he felt, or to explain if he experienced any change in condition. Dr. Seskind further testified that Patch’s intoxication affected his ability to survive an operation. It was his opinion that if Dr. Kumar had recommended surgery earlier than it was actually performed, Patch “would have died on the table.”

As a result, Patch’s intoxication was both relevant and admissible because it addressed whether Dr. Kumar breached the standard of care.

In her last argument, plaintiff contends that the jury’s award of $50,000 in damages was manifestly inadequate and could only have been the result of prejudice or complete disregard of proven elements of recoverable damages.

The assessment of damages is a matter committed to the sound discretion of the jury and a court will not substitute its judgment on the issue unless the jury’s award is contrary to the manifest weight of the evidence. (Johanek v. Ringsby Truck Lines, Inc. (1987), 157 Ill. App. 3d 140, 509 N.E.2d 1295; Voss v. Tune (1984), 121 Ill. App. 3d 692, 460 N.E.2d 51.) A jury’s award of damages is contrary to the manifest weight of the evidence when it is palpably inadequate as a consequence of passion or prejudice or when the jury disregards proven elements of damages. Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 485 N.E.2d 4; Barr v. Groll (1991), 208 Ill. App. 3d 318, 567 N.E.2d 13.

Plaintiff contends that in awarding damages, the jury disregarded both the testimony relating to plaintiff’s loss of support and the presumption of a substantial pecuniary loss to plaintiff, as a surviving spouse, and the children, as the next of kin.

Plaintiff testified that Patch was contributing about $100 every other week to her support. The evidence reflects that Patch was not contributing to the support his three adult children. In support of her claim of loss of support, plaintiff relied on Smith, who opined that had Patch lived and continued working to the end of his statistical life expectancy, 13.8 years after his death, he would have had $247,339 available to contribute to the support of others. On cross-examination, Smith admitted that although Patch had a statistical life expectancy of 13.8 years at the time of his death, his statistical work life expectancy was only 2.3 years when he died. Smith admitted that if Patch only worked to the end of his statistical work life expectancy, he would have had $30,845 available to contribute to the support of others. Smith admitted that his statistical analysis did not take into account the actual contributions that Patch had made to support plaintiff prior to his death; rather, he prepared an analysis of the amount of money Patch would have had available to contribute to the support of others. He acknowledged that based on plaintiff’s testimony of the sums Patch had given to her prior to his death, Patch was giving plaintiff about 20% of the total amount that he had available to contribute to the support of others. Based on the testimony of plaintiff’s own expert, the jury could have assessed plaintiff’s loss of support damages from a low of $6,169 (20% of $30,845) to a high of $247,339.

As to the damages for loss of society, the jury was exposed to contradictory evidence. To be sure, as plaintiff argues, there is a presumption of substantial pecuniary loss when a husband and father dies; however, the presumption is rebuttable. (Cooper v. Chicago Transit Authority (1987), 153 Ill. App. 3d 511, 505 N.E.2d 1239.) Plaintiff testified that she and Patch had been separated for about two years before he died; however, one of the children testified that his parents had not lived together since 1955 or 1956. In her answer to an interrogatory, which was read to the jury, plaintiff stated that she and Patch were estranged. The jury also heard the testimony of Dorothy Jones, who stated that Patch ate most of his meals at her home and often slept there. Jones accompanied Patch to the hospital after his injury. Plaintiff did not visit Patch while he was in the hospital. Jones, who had been Patch’s friend for about two years, only saw Patch with one of his children, Philip. Philip Patch did not testify at trial.

It is the jury’s function to weigh contradictory evidence, judge the credibility of the witnesses, and draw the ultimate conclusion as to the facts. (Finley v. New York Central R.R. Co. (1960), 19 Ill. 2d 428, 167 N.E.2d 212.) After weighing the evidence in this case, as viewed in a light most favorable to Dr. Kumar (see Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App. 3d 409, 458 N.E.2d 530), we are unable to conclude that the jury acted out of prejudice or failed to consider proven elements of damages. The jury was properly instructed on the measure of damages, it heard the evidence and judged the credibility of the witnesses, and we will not substitute our judgment for the jury’s on the amount of damages that should be awarded. (See Baird v. Chicago, Burlington & Quincy R.R. Co. (1976), 63 Ill. 2d 463, 349 N.E.2d 413.) For these reasons, we find the trial court did not err in denying plaintiff’s request for a new trial based on inadequate damages.

We now address Dr. Kumar’s claim that the trial court erred in denying a setoff based on plaintiff’s pretrial settlement with the real estate defendants.

Section 2(c) of the Contribution Act (Ill. Rev. Stat. 1991, ch. 70, par. 302(c)) provides:

“When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.”

When plaintiff settled with the real estate defendants, she had two claims pending against them: one was for wrongful death and the other was a survival action. A wrongful death action is brought to compensate the surviving spouse and next of kin of a decedent for the pecuniary loss that they sustained. (Ill. Rev. Stat. 1991, ch. 70, par. 2.) A survival action is brought pursuant to the Survival Act (Ill. Rev. Stat. 1991, ch. 110½, par. 27 — 6) for the benefit of the decedent’s estate. The statute permits the representative of the estate to prosecute a claim for personal injury that the decedent could have brought had he lived. The recoverable damages are those compensatory damages which the decedent would have been entitled to had he prosecuted the claim. Fountas v. Breed (1983), 118 Ill. App. 3d 669, 455 N.E.2d 200.

Clearly the settlement between plaintiff and the real estate defendants extinguished both claims; however, the trial court did not allocate the settlement between the wrongful death claim and the survival action in its order dismissing the real estate defendants and finding that the settlement was in good faith. As this court recently noted in Foster v. Kanuri (1992), 241 Ill. App. 3d 677, 681, 608 N.E.2d 8, 11:

“When reviewing a proposed settlement, the trial court should consider, in addition to the good-faith elements, the percentage of the settlement to be allocated with respect to the particular cause of action. When a lawsuit involves claims under both the survival and wrongful death statutes, the allocations should be made according to the claim. Expenses for conspicuous pain and suffering, expenses and loss of earnings of the decedent up to his or her date of death should be allocated to the survival action and the loss of benefits of the survivors should be allocated to the action for the wrongful death.”

In this case, the required allocation of the settlement was critical. Because Dr. Kumar was found liable to plaintiff on the wrongful death claim, to the extent that plaintiff’s settlement with the real estate defendants was for the wrongful death action, the trial court erred in denying Dr. Kumar the setoff which he was entitled to under the plain language of section 2(c) of the Contribution Act.

Accordingly, we affirm the trial court’s denial of plaintiff’s post-trial motion in all respects; but, we reverse the trial court’s denial of Dr. Kumar’s motion for a setoff and remand this cause to the trial court with directions to allocate the settlement between the wrongful death claim and the survival action and then to grant Dr. Kumar a setoff against the judgment entered against him in an amount equal to that portion of the settlement allocated to the wrongful death claim.

Affirmed in part; reversed in part and remanded with directions.

JOHNSON and CAHILL, JJ., concur.


author: JUSTICE O’CONNOR

text:
    JULIUS GRONER, Plaintiff-Appellant and Counterdefendant-Appellant, v. REGENCY FEDERAL SAVINGS AND LOAN ASSOCIATION, DefendantAppellee and Counterplaintiff-Appellee.
    First District (1st Division)
    No. 1 — 91—4011
    Opinion filed June 14, 1993.

      Edward H. Norton, of Highland Park, for appellant.
    Rock, Fusco, Reynolds & Garvey, Ltd., of Chicago (Kevin W. Horan, of counsel), for appellee Regency Savings Bank.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Julius Groner appeals from a final judgment of the circuit court of Cook County entered against him on his complaint for rescission of a promissory note and in favor of defendant Regency Federal Savings & Loan Association on its counterclaim for judgment on the same note. Plaintiff requests this court to vacate the judgment and to remand for a new trial based on numerous evidentiary rulings which prejudiced his ability to prove his case. We affirm.

On March 21, 1989, plaintiff sued defendant for rescission of a promissory note and restitution of all amounts which he had paid. Dated September 28, 1986, the note was payable in installments to the order of Rothchild Realty Partners 130.14 Limited Partnership (Rothchild). The note bore the following indorsement:

“PAY TO THE ORDER OF
WITHOUT RECOURSE
ROTHCHILD REALTY PARTNERS 130.14
BY: TRU MANAGEMENT CORE, GENERAL PARTNER
BY: L[.] STOE V.P.”

On December 15, 1987, plaintiff received a letter from defendant which advised him that Rothchild had defaulted on obligations owed defendant; that defendant was the holder of plaintiff’s note; and that plaintiff should make future payments to defendant. Plaintiff made payments to defendant as requested until he filed the instant action.

To support the relief claimed, plaintiff alleged that defendant was not a “holder in due course” as that term is defined under article 3 of the Uniform Commercial Code (the Code) (Ill. Rev. Stat. 1989, ch. 26, par. 3 — 101 et seq.) and, thus, took the note subject to plaintiff’s claim that the instrument was procured through fraud, of which defendant knew or should have known. Plaintiff’s fraud allegations were more particularized in a 160-page lawsuit filed February 1988, in a New York Federal court. Plaintiff attached the complaint in that action as an exhibit to his complaint. Plaintiff is named therein as a plaintiff; however, defendant is not a named party.

To further support his allegation that defendant was not a holder in due course, plaintiff asserted that defendant did not take the note “for value”; took the note despite facial irregularities appearing thereon, namely, that the payee (Rothchild) had indorsed it “in blank” and “without recourse”; and took the note as part of a bulk transaction (see Ill. Rev. Stat. 1989, ch. 26, par. 3 — 302).

Defendant counterclaimed and asserted its status as owner and holder of the note, plaintiff’s default thereunder and defendant’s right to accelerate the note upon default. Defendant sought judgment on the note, attorney fees and court costs. Plaintiff’s answer to defendant’s counterclaim admitted that defendant was the owner and holder of the note.

At trial, plaintiff called one witness: Frank L. Bogden, defendant’s senior vice-president and head officer of defendant’s real estate loan department. Bogden testified that on or about February 1986, defendant made a loan for $2.6 million to Rothchild Reserve International Investments, Inc. (RRII). The loan was secured by a third mortgage on an office building in Denver, Colorado. However, defendant required additional collateral.

Accordingly, defendant entered into an agreement with RRII and another entity — American Realty Associates, a New York limited partnership (ARA) — wherein various notes would be given to defendant as additional collateral for the loan. From time to time, defendant allowed a substitution of other notes for the original notes. The first substitution occurred in May 1986. A second substitution occurred in October 1986. Plaintiff’s note was one of the notes included in this second substitution. Each substitution occurred by way of written agreement between defendant, RRII and ARA. These agreements amended the initial collateral agreement.

Plaintiff attempted to ask Bogden questions concerning the May 1986 amendment. Defendant’s relevancy objection was sustained. Plaintiff made no offer of proof. The court similarly sustained relevancy objections to questions concerning the original collateral assignment agreement and a February 11, 1986, opinion letter from a law firm to defendant. This letter discussed the collateral assignment. Plaintiff made no offer of proof. In general, the court found any questions concerning transactions which predated the execution of the note irrelevant to plaintiff’s having to disprove defendant’s holder in due course status.

Frustrated by the court’s evidentiary rulings, plaintiff rested after offering into evidence (and the court receiving): (1) the original promissory note; (2) the October 1986 agreement allowing a second substitution of collateral; and (3) the June 5, 1989, affidavit of Frank Bogden. The court, however, denied admission of: (1) the original collateral assignment agreement; (2) the May 1986 substitution agreement; and (3) the February 1986 opinion letter.

Following the close of plaintiff’s case, the circuit court entered judgment against plaintiff on his complaint. The court also entered judgment in favor of defendant on the balance of the note, plus interest, attorney fees and court costs.

Plaintiff’s ability at trial to obtain rescission turned on proving grounds for rescission and that defendant was not a holder in due course. Our review of the record leads us to conclude that plaintiff’s proof on either of these propositions is utterly lacking. In fact, the opposite appears true: defendant is indeed a holder in due course.

A holder in due course is a holder who takes the instrument for value, in good faith, and without notice of any defense against or claim to it. (Ill. Rev. Stat. 1989, ch. 26, par. 3 — 302(1).) However, a holder does not become a holder in due course of an instrument by purchasing it as part of a bulk transaction not in the regular course of business of the transferor. Ill. Rev. Stat. 1989, ch. 26, par. 3— 302(3)(c).

Here, plaintiff in his answer to defendant’s counterclaim admitted that defendant was the owner and holder of his note. Thus, defendant is a holder for purposes-of this action.

The record also shows that defendant took the note for value. Frank Bogden, defendant’s senior vice-president and head officer of defendant’s real estate loan department, testified that defendant made a loan for $2.6 million to RRII in February 1986. The loan was secured by a third mortgage on certain improved property and by certain notes given to defendant by ARA. Substitutions of notes occurred in May 1986 and later, in October 1986. Defendant received plaintiff’s note as part of this latter substitution.

Section 3 — 303 of the Code states that a holder takes the instrument for value “when he takes the instrument in payment of or as security for an antecedent claim against any person.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 26, par. 3 — 303.) The transaction in question falls squarely within this section of the Code. Defendant thus took plaintiff’s note for value.

Regarding the elements of good faith and notice, plaintiff introduced no evidence to contradict the reasonable inference from Bogden’s testimony that defendant received plaintiff’s note as part of an ordinary transaction between a bank and borrower. Plaintiff asserts on appeal that his ability to disprove these matters was unduly restricted by the circuit court’s erroneous evidentiary rulings. Plaintiff’s failure, however, to make any offer of proof whatsoever during the trial constitutes a waiver of any error on review:

“Just as the objection is the key to saving for review any error in admitting evidence, the offer of proof is the key to saving error in excluding evidence. [Citation.] The purpose of the offer of proof is to disclose the nature of offered evidence to which objection is interposed, for the information of the trial judge and opposing counsel, and to enable the reviewing court to determine whether the exclusion was erroneous and harmful. [Citations.] When the circumstances and the question itself sufficiently indicate the purpose and substance of the evidence sought, and when the question is in proper form and clearly admits of a favorable answer, an offer is not required although clearly the safer course. [Citations.] When it is not clear what the witness would say, what is the basis for her so saying, and what the purpose of the evidence is, a detailed and specific offer of proof is required.” M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §103.7 (5th ed. 1990).

We believe this is a case in which an offer of proof was necessary to preserve our ability to review the alleged improper exclusion of evidence. If defendant did not take plaintiff’s note in good faith or with notice of the fact that plaintiff was somehow swindled, it was incumbent upon plaintiff to produce evidence of such facts. In the event plaintiff’s attempts at trial were met with sustained objections, plaintiff should have proceeded by way of an offer of proof. Because plaintiff did not do so in this case, we can only speculate as to what the proffered evidence would be. We will not undertake such a course of conduct.

Similarly, plaintiff’s failure to make an offer of proof on his bulk transaction theory bars any substantive review of that aspect of plaintiff’s case. Moreover, to defeat defendant’s holder in due course status under this theory, defendant must have “purchased” plaintiff’s note as part of a bulk transaction. The record shows, however, that defendant’s acquisition of plaintiff’s note was not by “purchase” as required by section 3 — 302(3)(c). Rather, defendant took plaintiff’s note as security for a loan. Plaintiff’s bulk transaction theory accordingly fails.

Plaintiff also raises the argument that defendant took with notice of defenses to enforcement of the note because the note is “so incomplete, bears such visible evidence of forgery or alteration, or is otherwise so irregular as to call into question its validity, terms or ownership.” (Ill. Rev. Stat. 1989, ch. 26, par. 3 — 304(l)(a).) Plaintiff asserts in support the fact that the payee of his note indorsed it in blank and without recourse. However, the Code clearly allows an indorsement to be “in blank” (see Ill. Rev. Stat. 1989, ch. 26, par. 3 — 204(2)) and “without recourse” (see Ill. Rev. Stat. 1989, ch. 26, par. 3 — 414). Accordingly, these matters cannot serve as notice to defendant of any irregularity.

Another effect of plaintiff’s failure to make any offer of proof at trial is that this court can only speculate as to the nature of “the fraud” committed upon plaintiff. Even if plaintiff could defeat defendant’s holder in due course status, plaintiff, to obtain rescission, would have to prove grounds to support such relief. Plaintiff’s complaint made reference to an action pending in Federal court in New York. However, at trial, no proof of fraud was introduced into evidence or that defendant had knowledge of such fraud. Absent proof supporting rescission, such relief cannot be granted.

For the foregoing reasons, the circuit court properly entered judgment against plaintiff following the close of his case. We accordingly affirm that portion of the judgment on review.

We also believe the court properly awarded judgment in favor of defendant on its counterclaim. Under section 3 — 307 of the Code, “When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” Ill. Rev. Stat. 1989, ch. 26, par. 3 — 307(2).

Here, plaintiff’s complaint admits his execution of the note in question and, as noted, plaintiff admits defendant’s status as a holder and owner of the noté. Thus, under the Code, defendant is entitled to enforce the note upon production unless plaintiff establishes a defense. The record reveals no defense. Plaintiff does not contest his default on the note and has not appealed the amount of the judgment entered against him. Accordingly, the judgment entered on defendant’s counterclaim is affirmed.

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

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.