author: JUSTICE HARTMAN

text:
    JOSEPH STEVENS, Adm’r of the Estate of Ingrid Stefanski, Deceased et al., Plaintiffs-Appellants, v. LOU’S LEMON TREE, LTD., et al., Defendants-Appellees (Vernell Ayers, Jr., Defendant).
    First District (2nd Division)
    Nos. 1—88—0963, 1—88—2206 cons.
    Opinion filed August 15, 1989.

      George M. Elsener & Associates, of Chicago (George M. Elsener and James N. Karahalios, of counsel), for appellants.
    Law Offices of Sherwin Greenberg, of Chicago (Michael F. Burns, of counsel), for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

Upon two successive defense motions, the circuit court dismissed counts IV and V of plaintiffs’ second amended complaint, and counts II and III of plaintiffs’ third amended complaint, for failure to state causes of action. By these consolidated appeals, plaintiffs seek recognition of a common law dramshop action and, alternatively, a finding that the Liquor Control Act of 1934 (Ill. Rev. Stat. 1987, ch. 43, pars. 94, 135) (Act) is unconstitutional insofar as it denies recovery for loss of consortium damages and places a cap upon the amount of damages recoverable.

On February 7, 1986, plaintiffs Joseph Stevens, as administrator of the estate of Ingrid Stefanski (Ingrid), and Alexander Stefanski (Alexander), individually, filed a complaint against Vernell Ayers, Jr. (Ayers). In count I, plaintiffs alleged that on January 1, 1986, Ayers negligently struck and killed Ingrid with an automobile as she crossed Burley Street in Chicago. Plaintiffs’ second amended complaint named as defendants: Ayers; Lou’s Lemon Tree, Limited (Lou’s), a corporation; and Daniel Delich (Delich) (sometimes collectively defendants). Count I was repeated and count II asserted that Lou’s owned, operated and managed a tavern and licensed dramshop, known as the Lemon Tree Inn, on Muskegon Street in Chicago. Delich allegedly owned the Lemon Tree Inn building and premises and permitted the giving or selling of alcoholic liquors on those premises. On January 1, 1986, Delich and Lou’s, acting through Lou’s agents or servants, allegedly sold or gave to Ayers alcoholic liquor which he consumed, causing his intoxication, which was “at least one cause” of the accident. As a result of this occurrence, Ingrid suffered personal injury and permanent damage, and both Ingrid and Alexander incurred damage to their property, in the nature of hospital, medical and funeral expenses. Citing the Act (Ill. Rev. Stat. 1987, ch. 43, pars. 93.9, 135), plaintiffs sought judgment against Lou’s and Delich for the property damage delineated above.

In count III, plaintiffs again sought recovery pursuant to the Act, contending that as a result of defendants’ negligence and Ingrid’s death, Alexander suffered injury to his means of support, suitable comforts which might have been expected from Ingrid and deprivation of Ingrid’s companionship, society, love and affection.

Counts IV and V alleged common law negligence, otherwise tracking the preceding allegations.

Lou’s section 2 — 615 motion to dismiss plaintiffs’ second amended complaint (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), joined in by Delich, resulted in an order entered February 29, 1988, which: dismissed counts IV and V of the second amended complaint with prejudice; struck counts II and III with leave to refile; and found no just reason to delay appeal of the order. (124 Ill. 2d R. 304(a).) On March 23, 1988, plaintiffs filed a notice of appeal (docket No. 1 — 88—0963).

In their third amended complaint, filed March 25, 1988, plaintiffs asserted second and third counts virtually identical to those alleged in the second amended complaint, which were again dismissed, on June 28, 1988. By notice filed July 11, 1988, plaintiffs appealed this order (docket No. 1 — 88—2206). The appeals were consolidated. Ayers is not a party to these appeals.

I

Plaintiffs first assign error to the circuit court’s refusal to recognize a common law, dramshop cause of action, permitting recovery against Lou’s and Delich for damages allegedly incurred by Alexander as a result of Ingrid’s death. Admitting all well-pleaded facts and any reasonable inferences they permit, this court must determine whether those facts, viewed most favorably to plaintiffs, are sufficient to set forth causes of action upon which relief may be granted. Farmers State Bank & Trust Co. v. Lakey’s Lounge, Inc. (1988), 165 Ill. App. 3d 473, 479, 519 N.E.2d 121.

The right of recovery by virtue of negligence caused by intoxication was unknown at common law. (Howlett v. Doglio (1949), 402 Ill. 311, 318, 83 N.E.2d 708; Thompson v. Capasso (1959), 21 Ill. App. 2d 1, 4, 157 N.E.2d 75.) The legislature has recognized such an action in the Act (Ill. Rev. Stat. 1987, ch. 34, par. 135) and has the power to set the terms of recovery and liability therefor, without interference from the courts. (Howlett v. Doglio, 402 Ill. at 320-21; Zamiar v. Linderman (1985), 132 Ill. App. 3d 886, 889, 478 N.E.2d 534; Thompson v. Capasso, 21 Ill. App. 2d at 8.) As many Illinois authorities have held, the Act provides the only remedy against tavern operators and owners of tavern premises for injuries to person, property or means of support by an intoxicated person. Cunningham v. Brown (1961), 22 Ill. 2d 23, 30-31, 174 N.E.2d 153; Puckett v. Mr. Lucky’s Ltd. (1988), 175 Ill. App. 3d 355, 357, 529 N.E.2d 1169 (collecting authorities); see also Hopkins v. Powers (1986), 113 Ill. 2d 206, 210, 497 N.E.2d 757; Demchuk v. Duplancich (1982), 92 Ill. 2d 1, 5, 440 N.E.2d 112; Ruth v. Benvenutti (1983), 114 Ill. App. 3d 404, 406, 449 N.E.2d 209.

Claiming that the $40,000 ceiling on damages now available under the Act is almost worthless by virtue of inflationary erosion and the unrealistic limitation articulated in the Act on the types of damages offered (Ill. Rev. Stat. 1987, ch. 43, par. 135), plaintiffs contend that the deterrent intent underpinning the statute (see Ill. Rev. Stat. 1987, ch. 43, par. 94) has dissipated. In effect, tavern owners and operators are immunized from the exponentially larger amounts commonly awarded today as damages in simple negligence claims. Plaintiffs well recognize legislative prerogatives and limitative precedent; nevertheless, they press for a change in the law which has created the present state of injustice. They point to recent cases in which reviewing courts explicitly have called for legislative relief to no avail (Zamiar v. Linderman, 132 Ill. App. 3d at 890; Ruth v. Benvenutti, 114 Ill. App. 3d at 406), and inferentially urge that we follow the cogent and erudite dissent written by Justice Knecht in Puckett v. Mr. Lucky’s Ltd. (175 Ill. App. 3d at 358-66), if parity is to be established for recovery in dramshop cases and common law recoveries. Parenthetically, we note that our supreme court recently denied leave to appeal in Puckett (124 Ill. 2d 561). Plaintiffs earnestly importune this court to act where the legislature will not and recognize a common law cause of action for recovery against dramshop operators without a monetary cap and impose liability on liquor sellers and purveyors for the loss of society, love, comfort and affection incurred by the spouse of an individual killed by an intoxicated motorist.

As examples of judicial action taken where the legislature has not acted, plaintiffs cite Alvis v. Ribar (1981), 85 Ill. 2d 1, 21, 421 N.E.2d 886, where our supreme court abandoned the concept of contributory negligence in favor of comparative negligence, explicitly noting that judge-created doctrines, such as contributory negligence, may be altered or totally replaced by the court which created them; and Smith v. Eli Lilly & Co. (1988), 173 Ill. App. 3d 1, 527 N.E.2d 333, appeal allowed (1988), 123 Ill. 2d 567, 535 N.E.2d 411, which marked a change in court-made theories by recognizing a modified market share theory of recovery for drug product damages in Illinois. Purely statutory causes of action such as in the present case, however, demand greater judicial restraint and restrict the freedom with which a court may act to alleviate perceived injustices. Smith v. Eli Lilly & Co., 173 Ill. App. 3d at 26-27.

Plaintiffs also urge expansion of damages to include compensation for loss of love, society, affection and comfort of the deceased. The Act restricts damages to personal injury, injury to property and injury to “means of support.” (Ill. Rev. Stat. 1987, ch. 43, par. 135.) “Means of support” contemplates a person’s wage-earning potential only, measurable by such tangibles as lost wages and inability to continue to earn a living. (Farmers State Bank & Trust Co. v. Lahey’s Lounge, Inc., 165 Ill. App. 3d at 477; Wilberton v. Freddie’s Pepper Box, Inc. (1986), 148 Ill. App. 3d 319, 323, 499 N.E.2d 615; Martin v. American Legion Post No. 784 (1978), 66 Ill. App. 3d 116, 118, 383 N.E.2d 672.) Decisions emanating from this court have repeatedly rejected litigants’ attempts to broaden the spectrum of damages cognizable as “means of support.” See, e.g., Farmers State Bank & Trust Co. v. Lahey’s Lounge, Inc., 165 Ill. App. 3d 473, 519 N.E.2d 121 (no recovery for maternal and domestic services); Wilberton v. Freddie’s Pepper Box, Inc., 148 Ill. App. 3d 319, 499 N.E.2d 615 (no recovery for maternal and domestic services); Stevens v. B &L Package Liquors, Inc. (1978), 66 Ill. App. 3d 120, 383 N.E.2d 676 (“means of support” does not include value of domestic chores and services rendered by minor); Robertson v. White (1956), 11 Ill. App. 2d 177, 136 N.E.2d 550 (potential earnings of minor child not contemplated in “means of support”).

The foregoing opinions explain as well the rationale prompting their adherence to the letter of the statute. The Act has been characterized as “essentially penal in character” because it provides recovery for injuries resulting from conduct of intoxicated persons without regard to fault; recovery, therefore, has been limited to “those classes named or fairly encompassed within [its] terms.” Farmers State Bank & Trust Co. v. Lahey’s Lounge, Inc., 165 Ill. App. 3d at 477.

Amendments to a statute, furthermore, are assumed to be enacted with the legislature’s knowledge of judicial construction of the law. Despite several amendments to the damages provision from time to time, one of which raised the cap on damages in 1985, and the latest a technical amendment occurring in 1986 (Pub. Act 84 — 1438, eff. Dec. 22, 1986 (amending Ill. Rev. Stat. 1987, ch. 43, par. 135)), the legislature has implicitly accepted these judicial interpretations of “means of support” by declining to expand the scope of damages available under the Act further. Demchuk v. Duplancich, 92 Ill. 2d at 8, 9; Wilberton v. Freddie’s Pepper Box, Inc., 148 Ill. App. 3d at 324.

In the case sub judice, plaintiffs never attributed to Ingrid any present or potential earning capacity; instead, the lost “means of support” are described as “suitable comforts” which Alexander might have “expected” from her and as “companionship, society, love and affection.” Indeed, plaintiffs conceded in the second amended complaint that neither Ingrid nor Alexander was employed in January 1986. Reading “means of support” so narrowly does not, as plaintiffs argue, evade the statute’s prescription that its terms be “liberally construed.” (Ill. Rev. Stat. 1987, ch. 43, par. 94.) Although the courts must faithfully apply the remedy offered by the Act, they cannot enlarge the statute’s scope beyond a reasonable interpretation of its language. Robertson v. White, 11 Ill. App. 2d at 186.

Failure to expand the category of damages would not betray established tort theory which creates liability to, inter alia, deter potentially injurious behavior and compensate victims of tortious conduct, as plaintiffs argue, because the liability imposed on the dramshop by the statute does not create a duty in tort. (Hopkins v. Powers, 113 Ill. 2d at 210-11.) Where the defendant bears no duty, he or she cannot be found guilty of tortious conduct. (Wimmer v. Koenigseder, 108 Ill. 2d at 444.) The circuit court correctly dismissed counts IV and V of the third amended complaint.

II

Plaintiffs argue in the alternative that if this court finds no common law dramshop action to exist, it should declare the Act unconstitutional as violative of several State and Federal constitutional provisions.

The first constitutional objection levelled at the Act is that it breaches the State Constitution’s prohibition against “special legislation.” Ill. Const. 1970, art. IV, §13.

Plaintiffs refer this court to Grace v. Howlett (1972), 51 Ill. 2d 478, 487, 283 N.E.2d 474, where the supreme court held certain provisions of the Insurance Code unconstitutional on these grounds. Subsequently, however, in Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313, 330, 347 N.E.2d 736, on which plaintiffs also rely, the court found unconstitutional statutory caps placed on monetary damages recoverable in a medical malpractice action; nonetheless, the court specifically distinguished the Act, noting that recovery against dramshop operators for injuries inflicted by an intoxicated person was entirely a legislative creation and, as such, was legitimately subject to whatever limitations the legislature imposed upon it. Wright v. Central Du Page Hospital Association, 63 Ill. 2d at 326. See also Mulhern v. Talk of the Town, Inc. (1985), 138 Ill. App. 3d 829, 836, 486 N.E.2d 383.

Does the Act deny plaintiffs their right to “a certain remedy,” guaranteed by the Illinois Constitution, as they next claim? (Ill. Const. 1970, art. I, §12.) This question was disposed of in Cunningham v. Bown (22 Ill. 2d at 30), where the supreme court stated that the existence of a legislative remedy, albeit limited, does not require the courts to recognize an additional or expanded remedy. See also Knierim v. Izzo (1961), 22 Ill. 2d 73, 77, 174 N.E.2d 157.

Plaintiffs further claim that the Act deprives them of their constitutional right to a jury trial, pursuant to both the Illinois and Federal Constitutions. (U.S. Const., amend. VII; Ill. Const. 1970, art. I, §13.) Plaintiffs rely principally on Kansas Malpractice Victims Coalition v. Bell (1988), 243 Kan. 333, 334, 757 P.2d 251, 258-60, and the Kansas Supreme Court’s ruling that the jury’s function is to determine all factual issues, including damage awards, and thus statutory limitations on damages available to medical malpractice victims deprived them of their right to a jury trial as set forth in the State Constitution. In Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313, 347 N.E.2d 736, our supreme court noted critical distinctions between causes of action known at common law, such as claims alleging medical malpractice, and classes of claims which are purely statutory in nature. Claims created by statute need not be tried by a jury, as the right to a jury trial is conferred on common law claims. (In re Estate of Grabow (1979), 74 Ill. App. 3d 336, 337, 392 N.E.2d 980.) Moreover, the guaranty of a jury trial articulated in the United States Constitution does not extend to the States through the fourteenth amendment, contrary to plaintiffs’ assertion. Boyd v. Bulala (W.D. Va. 1986), 647 F. Supp. 781, 788; In re Estate of Grabow, 74 Ill. App. 3d at 338.

Plaintiffs insist that the limitations placed upon recovery under the Act, including who may collect damages; the one-year limitations period attached to the statute; and the fact that no right of contribution exists against dramshops by codefendants, rob them of their due process rights. (See U.S. Const, amend. XIV: Ill. Const. 1970, art. I, §2; Demchuk v. Duplancich, 92 Ill. 2d at 9; Mulhern v. Talk of the Town, Inc., 138 Ill. App. 3d at 835; Akin v. J.R.’s Lounge, Inc. (1987), 158 Ill. App. 3d 834, 837, 512 N.E.2d 130.) Restraints on recovery imposed by the legislature reduce the remedy to a virtual nullity, plaintiffs contend.

No Illinois authority is cited in support of plaintiffs’ proposition, however, and cases from foreign jurisdictions to which they refer do not construe dramshop statutes. No decisions on which plaintiffs rely address the facts at bar. Because there was no common law remedy for injuries inflicted through third parties by sellers and purveyors of liquor, the Act in fact provides, rather than abrogates, a remedy; there is no infringement on plaintiffs’ rights. (Zostautas v. St. Anthony De Padua Hospital (1961), 23 Ill. 2d 326, 336, 178 N.E.2d 303.) We are cautioned to recognize that the legislature must be given wide latitude in defining the perimeters of the cause of action it creates. Hall v. Gillins (1958), 13 Ill. 2d 26, 29, 147 N.E.2d 352.

An additional case plaintiffs refer to our attention is similarly distinguishable. In Ontiveros v. Borak (1983), 136 Ariz. 500, 513, 667 P.2d 200, 213, the Arizona Supreme Court recognized for the first time a common law dramshop cause of action in that State; however, due process was not an issue before the court.

Plaintiffs maintain the Act denies them equal protection of the laws (U,S. Const., amend. XIV; Ill. Const. 1970, art. I, §2) because it arbitrarily classifies who may recover under the Act. The classes allegedly discriminated against essentially fall into two groups: (1) families of deceased individuals who may demand damages for loss of the decedent’s love, society and affection against all wrongdoers except liquor sellers and purveyors; and (2) families of decedents who were unemployed and providing no “means of support” at their death.

This appeal encompasses neither a fundamental right nor a suspect class; the legislature may differentiate between persons similarly situated if there is a reasonable basis for doing so, i.e., when: (1) the statute’s purpose is reasonable; and (2) the statute rationally advances that purpose. (Linnabery v. DePauw (C.D. Ill. 1988), 695 F. Supp. 411, 413; Glinka v. Flame of Countryside, Inc. (1988), 171 Ill. App. 3d 81, 84, 524 N.E.2d 1102.) The underlying purposes of the Act are to protect and promote the safety and welfare of the State’s citizens, to foster temperance, and to place the burden of securing these goals on those profiting from trafficking in liquor. (See Linnabery v. DePauw, 695 F. Supp. at 413; Ill. Rev. Stat. 1987, ch. 43, par. 94.) As recovery allowed under the Act was unknown at common law, the legislature itself defined the nature of the damages and the class of beneficiaries it desired to benefit from the statute’s stated purpose. The fact that the legislature also employed limitations on these terms reasonably may reflect the State’s additional interest in protecting putative defendants from excessive liability. (See In re Air Crash Disaster Near Chicago, Illinois, on May 25, 1979 (1981), 644 F.2d 594, 610.) The rational promotion of the Act’s purposes therefore does not deny plaintiffs equal protection of the laws. The circuit court did not err in dismissing counts II through IV of plaintiffs’ third amended complaint.

For the reasons set forth above, we are constrained to affirm the judgments of the circuit court.

Affirmed.

BILANDIC, P.J., and SCARIANO, J., concur.

      Defendants correctly observe that plaintiffs present no arguments in their briefs regarding count II of the third amended complaint, in which plaintiffs sought recovery for personal injury and property damage. Issues or questions not raised in the briefs are waived. Svec v. Allstate Insurance Co. (1977), 53 Ill. App. 3d 1033, 1037, 369 N.E.2d 205.

      Plaintiffs urge that the Act infringes upon two fundamental rights: the right to trial by jury and the right to a remedy. It has already been determined, however, that the constitutional guaranty of a jury trial does not attach to claims unknown at common law (In re Estate of Grabow, 74 Ill. App. 3d at 337), and that the legislature may define the remedies available in causes of action it creates itself. Cunningham v. Brown, 22 Ill. 2d at 30.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    THE CITY OF CHICAGO, Plaintiff-Appellant, v. THE ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellees (South Austin Coalition Community Council et al., Plaintiffs).
    First District (3rd Division)
    Nos. 1—87—2787, 1—87—2995 cons.
    Opinion filed August 16, 1989.

      Kelly R. Welsh, of Chicago (Ruth M. Moscovitch and Jeffrey P. Smith, of counsel), for appellant.
    Edward P. O’Brien, of Chicago, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, City of Chicago (hereinafter referred to as the City), appeals from an order of the circuit court of Cook County granting attorney fees against defendant Illinois Commerce Commission and other individually named defendants. The City argues that the trial court abused its discretion when it awarded attorney fees at actual costs rather than at market value in accordance with experience and expertise. We reverse and remand.

The City, South Austin Coalition Community Council, and the Labor Coalition on Public Utilities prevailed in litigation seeking to invalidate an Illinois Commerce Commission rule allowing certain types of ex parte communications. The City and the South Austin Coalition Community Council sought attorney fees under section 14.1 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1985, ch. 127, par. 1014.1) at the rate of $100 per hour. The defendants agreed that an hourly rate of $100 was a reasonable reflection of the market rate for attorneys of similar experience and expertise and that most of the hours expended were reasonable. The trial court awarded fees to the South Austin Coalition Community Council at the market rate of $100 per hour for its attorneys, the Handel Legal Clinic, but granted the City attorney fees commensurate with the attorneys’ salaries and law department overhead expenditures attributable to the litigation. The court awarded the City $10,769.04 for 216 hours, an average attorney rate of approximately $50 per hour. The City argues that this was an abuse of the trial court’s discretion since the attorney fees were not comparable to the rates commanded by attorneys of similar experience and expertise. We agree.

Section 14.1(b) of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1985, ch. 127, par. 1014.1(b)), provides:

“In any case in which a party has any administrative rule invalidated by a court for any reason, including but not limited to the agency’s exceeding its statutory authority or the agency’s failure to follow statutory procedures in the adoption of the rule, the court shall award the party bringing the action the reasonable expenses of the litigation, including reasonable attorney’s fees.” (Emphasis added.)

The purposes of section 14.1(b) of the Administrative Procedure Act are to discourage enforcement of invalid rules and to provide incentive to those subject to regulations to oppose doubtful rules where compliance would otherwise be less costly than litigation. (Board of Education v. Illinois State Board of Education (1984), 122 Ill. App. 3d 471, 480, 461 N.E.2d 567, 574.) One manner of providing incentive for litigation where compliance would otherwise be less costly is to provide market-rate attorney fees. In Brewington v. Illinois Department of Corrections (1987), 161 Ill. App. 3d 54, 65, 513 N.E.2d 1056, 1064, this court noted that one of the purposes of the Illinois Human Rights Act’s attorney fees provision (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 8 — 108(G)) is to encourage the bringing of civil rights actions by providing, as part of the relief awarded, payment of the costs of maintaining the action, including market-rate attorney fees.

Two approaches have been utilized by trial courts when assessing the amount to be awarded as reasonable attorney fees. Under one method, the court determines the amount of the fee based upon consideration of the time and labor required, the novelty and difficulty of the issues, the skill required to litigate the case, the preclusion of other employment due to acceptance of the case, the customary fee charged in the community, the amount involved, the results obtained, the attorney’s experience, reputation and ability, and awards entered in similar cases. (In re Estate of Healy (1985), 137 Ill. App. 3d 406, 409, 484 N.E.2d 890, 893.) The other computative method provides that the fee award is premised upon the number of hours spent on the case and the attorney’s hourly billing rate, with the assumption that these factors reflect the aforementioned considerations. In re Healy, 137 Ill. App. 3d at 410.

Where the client was under no obligation to pay attorney fees to the Legal Assistance Foundation, this court interpreted provisions for reasonable attorney fees in the Truth in Lending Act (15 U.S.C. §1640 (1982)) and the Illinois Interest Act (Ill. Rev. Stat. 1975, ch. 74, par. 6) as requiring an award to the Legal Assistance Foundation at rates prevalent for attorneys with comparable experience and expertise. (Merchandise National Bank v. Scanlon (1980), 86 Ill. App. 3d 719, 408 N.E.2d 248.) The decision relies on the rulings in Fairley v. Patterson (5th Cir. 1974), 493 F.2d 598, that allowable fees and expenses may not be reduced because appellant’s attorney is employed or funded by a civil rights organization and/or tax-exempt foundation or because the attorney does not exact a fee, and that whether the attorney charges a fee or has an agreement that the organization that employs him will receive any awarded attorney fees are not proper bases on which to deny or limit attorney fees or expenses. The Merchandise National case also refers to Torres v. Sachs (2d Cir. 1976), 538 F.2d 10, wherein the court rejected the argument that fees awarded to publicly financed legal services organizations should be less than the fees received by privately employed counsel for work of comparable importance, extent and complexity. 86 Ill. App. 3d at 729.

In Fairley, the court specifically stated that the trial court’s rationale for limiting fees because the funds would flow into the “coffers of the Ford Foundation” was impermissible. Fairley, 493 F.2d at 606. See also In re Marriage of Brockett (1984), 130 Ill. App. 3d 499, 501, 474 N.E.2d 754, 756 (which held that when apportioning attorney fees, the trial court should not have considered that the petitioner was represented by Land of Lincoln Legal Assistance).

In Rodriguez v. Taylor (3d Cir. 1977), 569 F.2d 1231, 1248, cert. denied (1978), 436 U.S. 913, 56 L. Ed. 2d 414, 98 S. Ct. 2254, the court found that the trial court abused its discretion by emphasizing the salaries paid by the legal services organization in computing an hourly rate of compensation, noting that legal services salaries are generally considerably lower than salaries paid in private firms given comparable experience and credentials. 569 F.2d at 1248.

Similarly, in a suit for attorney fees for services rendered in a successful Freedom of Information Act case, wherein the court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred, the court reaffirmed the basic framework for computation of attorney fee awards as the market value approach, derived by multiplying the number of hours reasonably expended by the hourly rate prevailing in the community for similar work, not the amount actually received by the attorney. (Jordan v. United States Department of Justice (D.C. Cir. 1982), 691 F.2d 514, 524.) In Jordan, the court stated further that policy considerations dictate that the awarded fees be calibrated to true market value, such that fees for student legal work, if otherwise properly allowable, should represent the market value of their services, not the sum the client may pay to the clinic as a fee, nor the amount the clinic may pay to the students as compensation. Thus, the court rejected an actual-cost analysis. (691 F.2d at 524.) The court additionally noted that absent fee awards at market rates, the party opposing a litigant represented by a clinic program might be more disposed to litigate than settle.

Parenthetically, we note that section 14.1(b) of the Illinois Administrative Procedure Act does not include the language “attorney fees incurred” as does section 508 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 508). Absent such language, we will not construe the language reasonable attorney fees as requiring payment for actual costs. Rather, section 14.1(b) requires the provision of reasonable attorney fees calculated at market rates commensurate with experience and expertise.

We find that the trial court abused its discretion when it awarded fees to the City of Chicago equalling their actual costs and failed to award fees at market value in accordance with experience and expertise. Accordingly, we reverse and remand for recalculation of the City’s attorney fee award.

Reversed and remanded with directions.

WHITE and McNAMARA, JJ., concur.

       Justice McNamara participated in this opinion prior to his assignment to the sixth division.


author: JUSTICE CERDA

text:
    GERALD J. MANNIX, Indiv. and as Adm’r of the Estate of Ercel C. DeForce, Deceased, and on Behalf of All Heirs and Legatees of the Estate of Ercel C. DeForce, Deceased, and on Behalf of All Persons Similarly Situated, Plaintiff-Appellant, v. JAMES H. DONNEWALD, Treasurer, Defendant-Appellee.
    First District (3rd Division)
    No. 1—87—2865
    Opinion filed August 16, 1989.

      Chadwell & Kayser, Ltd., of Chicago (Julia D. Mannix and Bruce C. Howard, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert W. Cushing, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

The plaintiff, individually and as administrator of the estate of Ercel C. DeForce, deceased, filed this class action suit after receiving a tax refund to recover interest earned on estate funds deposited with the State Treasurer pending determination by the circuit court of the actual amount of inheritance tax due. The parties filed cross-motions for summary judgment, and the plaintiff appeals from the trial court’s order granting summary judgment in favor of the defendant. There are no questions of fact, and the sole issue presented for review is whether an estate is entitled to the interest earned on funds deposited with the State Treasurer pending a determination of the amount of inheritance taxes due, when the amount determined to be due is less than the amount deposited, and the estate receives a refund. Certification of the class was continued pending resolution of the parties’ cross-motions for summary judgment.

Ercel C. DeForce died on September 25, 1977. The inheritance taxes on her estate accrued and became due on the date of her death pursuant to section 3 of the Inheritance and Transfer Tax Law (Act) (Ill. Rev. Stat. 1977, ch. 120, par. 377). Section 3 provides that the State will charge interest at the rate of 7% per annum for such time as the taxes remain unpaid. Because the amount of the inheritance taxes due were unknown, the taxes had to be determined in the circuit court. (Ill. Rev. Stat. 1977, ch. 120, par. 385.) Section 3 contains a provision, however, providing that the charging of interest pending determination of the amount of taxes due can be avoided if a deposit is made with the county treasurer. (Ill. Rev. Stat. 1977, ch. 120, par. 377(c).) That provision provides in pertinent part:

“All taxes imposed by this Act, unless otherwise herein provided for, shall accrue and be due and payable, at the death of the decedent. Interest at the rate of 7% per annum shall be charged and collected for such time as the tax is not paid; except *** (c) where prior to the final determination of the tax a deposit is made with the County Treasurer to be applied to the payment of the tax when finally determined ***.” (Ill. Rev. Stat. 1977, ch. 120, par. 377(c).)

The plaintiff accordingly deposited $75,000 with the county treasurer on September 25, 1978. That deposit was remitted to the State Treasurer in accordance with the Act. On August 20, 1981, four years later, the circuit court determined the estate’s inheritance tax to be $33,584.75. The plaintiff subsequently received a refund of $41,451.25 from his deposit. The State Treasurer, however, refused to credit to the estate the interest earned on the amount refunded. Answers to interrogatories reveal that between 1978 and 1986 over $27 million in excess deposits were refunded without interest. In granting the defendant’s motion for summary judgment, the trial court, relying on Lakefront Realty Corp. v. Lorenz (1960), 19 Ill. 2d 415, 167 N.E.2d 236, held that the State Treasurer is not obligated to pay interest to the estate in the absence of statutory authorization.

In Lakefront Realty Corp. v. Lorenz, our supreme court addressed for the first time the question of whether a taxpayer is entitled to interest on a tax refund. The court held that the taxpayer was not entitled to the interest on the grounds that interest, being a creature of statute or contract, is not recoverable without statutory authorization, and in practice, the tax collector has no money to pay interest in the absence of a statute authorizing him to establish a fund for that purpose. (Lakefront Realty Corp., 19 Ill. 2d at 423.) This holding has repeatedly been reaffirmed. (See City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 576, 413 N.E.2d 394; People v. Meyerowitz (1975), 61 Ill. 2d 200, 211, 335 N.E.2d 1; Clarendon Associates v. Korzen (1973), 56 Ill. 2d 95, 109, 306 N.E.2d 299.) Lakefront Realty is based on the rule that the sovereign is not obligated to pay interest unless it gives its consent by act of its legislature or by contract entered into by its officers. (United States v. North Carolina (1890), 136 U.S. 211, 216, 34 L. Ed. 336, 338, 10 S. Ct. 920, 922.) This rule is founded on the principle that in the absence of a contract to pay interest, interest is only awarded for delay or default by the debtor, and delay or default cannot be attributed to the government as the government is presumed to be always ready to pay what it owes. Schlesinger v. State (1928), 195 Wis. 366, 368-69, 218 N.W. 440, 441, cited with approval in Lakefront Realty Corp. v. Lorenz, 19 Ill. 2d at 421.

The plaintiff does not dispute the rule’s validity, but questions its applicability in the present case. The plaintiff contends that under the statute in question, the money deposited with the State Treasurer is private property having legal consequences which are controlling. The plaintiff refers us to the statutory language which distinguishes between a “deposit” of funds and a “payment” of taxes. Under the Act, interest to be charged for unpaid taxes is avoided if “a deposit is made with the county treasurer to be applied to the payment of the tax when finally determined.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 120, par. 377(c).) The plaintiff asserts that the funds deposited with the Treasurer are owned by the estate because the funds are not “applied to the payment” of the inheritance tax until the amount owing has been finally determined. Hence, the excess deposit, having always belonged to the estate, must be refunded along with any interest earned through its investment. The plaintiff does not maintain that such deposits have to be invested, but contends that when they are, any interest earned belongs to the depositor. The plaintiff rests this conclusion on several theories as set forth in his four-count complaint.

Beginning with the premise that the deposit is private property, the plaintiff argues the funds are protected by the fifth amendment prohibition against the taking of private property for public use without just compensation as applied to the States through the fourteenth amendment. (U.S. Const., amends. V, XIV.) The plaintiff also relies on the identical prohibition contained in the Illinois Constitution. (Ill. Const. 1970, art. 1, §15.) The plaintiff further argues that withholding the interest constitutes a breach of fiduciary duty and unjust enrichment. Consequently, the plaintiff prays that a constructive trust be placed upon the interest income. For these latter contentions, the plaintiff relies on the rule that equity may award interest when warranted by equitable considerations even though the statute in question is silent as to interest liability. City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 413 N.E.2d 394.

In contending that there is a “taking” of private property in violation of the fifth amendment and article I, section 15, of the Illinois Constitution, the plaintiff focuses on the drafters’ use of the term “deposit” in section 3. Citing Sears v. First Federal Savings & Loan Association (1971), 1 Ill. App. 3d 621, 628, 275 N.E.2d 300, the plaintiff asserts that by definition, a depositor retains property rights in his deposit, among which is the right to receive back all or part of the deposit. In contrast, a “payment” is money paid to a creditor in satisfaction of a debt. (Sears, 1 Ill. App. 3d at 629.) From this, the plaintiff maintains that the estate’s deposit is private property and, thus, the government cannot use it for public purpose without just compensation. The plaintiff relies on our supreme court’s decision in Morton Grove Park District v. American National Bank & Trust Co. (1980), 78 Ill. 2d 353, 399 N.E.2d 1295, for the proposition that using the deposit to earn interest is a taking of private property for public purpose without just compensation.

In Morton Grove, the park district had condemned several parcels of real estate under authority of the Eminent Domain Act. A jury determined the fair market value of the real estate, and the condemnees appealed the amount awarded. Pursuant to the act, the park district was placed in possession of the property, and the condemnation award was deposited with the county treasurer pending appeal. The condemnees lost their appeal and subsequently petitioned the trial court, requesting that the county treasurer be ordered to pay out the condemnation award and the interest income that had been earned during the appeal process. The trial court denied the condemnees the interest income and the appellate court affirmed.

In addressing the question of whether the condemnees were entitled to the interest income, the supreme court evaluated the procedures under the Eminent Domain Act. The court noted that the condemnor is placed in possession of the condemned property even though the condemnees appeal the amount of the award. Because the condemnation award that is deposited with the county treasurer is a substitute for the property owned by the condemnees, the court concluded that the deposited funds were private property. (Morton Grove Park District, 78 Ill. 2d at 360.) Therefore, the court held that the use of the money by the county to earn interest constituted a taking of private property without just compensation. Morton Grove Park District, 78 Ill. 2d at 362.

The plaintiffs argument is persuasive, but we disagree with his conclusions. The plaintiff may be correct that the estate’s deposit is private property, but it does not necessarily follow that the government’s action constitutes a “taking” of such property. The plaintiffs argument is defective because it fails to take into account the true nature of the transaction. Also, the condemnation award was not a tax.

The power of taxation is inherent in a sovereign State. (See generally 71 Am. Jur. 2d State & Local Taxation §71 (1973); 26 Ruling Case Law, Taxation §12, at 26 (1920).) The power to tax exists independently of the State’s Constitution because government cannot exist without it. (71 Am. Jur. 2d State & Local Taxation §6 (1973); 26 Ruling Case Law, Taxation §12, at 26 (1920).) Thus, the provisions of the sovereign State’s Constitution which relate to the power of taxation do not operate as grants of the power of taxation, but constitute limitations upon a power which is otherwise without limit. (71 Am. Jur. 2d State & Local Taxation §68 (1973); 26 Ruling Case Law, Taxation §12, at 26 (1920).) In implementing the power of taxation, the legislature enacts what it deems the most efficient methods for raising and collecting revenue. 71 Am. Jur. 2d State & Local Taxation §73 (1973).

The statutory method of collecting inheritance taxes enacted in Illinois is analogous to the Federal system of collecting income taxes whereby income is periodically withheld (a deposit) and overpayments are refunded. In Jacobs v. Gromatsky (5th Cir. 1974), 494 F.2d 513, a taxpayer filed a class action suit alleging that the Federal tax-collecting scheme was unconstitutional in violation of the fifth amendment. The taxpayer advanced the same argument that the failure of the tax statutes to provide for the payment of interest on withholding and estimated tax payments which are later refunded as overpayments constituted a taking of property without just compensation. The government responded with the same contention as advanced here, that interest liability cannot be imposed upon the government in the absence of statutory authority. The court upheld the tax-collecting scheme, but not for the reasons advanced by the government. The court explained:

“The complete answer lies instead in the powers vested in the Congress to lay and collect taxes on incomes, under the sixteenth amendment. This power not only includes prescribing the basic rates of taxation, the time and manner in which taxes are to be paid; but also includes the means and methods for making refunds — with or without interest, which must be viewed realistically as no more than one function of the overall rate of such exaction.” (Jacobs v. Gromatsky, 494 F.2d at 514.)

The power of the State to lay and collect taxes no doubt includes the authority to implement similar tax-collecting methods, including payment of deposits pending final determination of the amount of taxes owed. (Ill. Const. 1970, art. 9, §1.) The deposits made pursuant to the Inheritance and Transfer Tax Law are part of the overall machinery for tax collection in this State, and the benefit inuring to the State through investment of the deposits must also be viewed as part of the overall rate of exaction. See also Cameron v. Internal Revenue Service (N.D. Ind. 1984), 593 F. Supp. 1540, 1554 (wherein the court held that the failure to take into account the effect of inflation for Federal income tax refunds did not constitute a “taking” in violation of the fifth amendment).

Placing great emphasis on the drafters’ use of the term “deposit,” the plaintiff asserted in oral argument that Jacobs is distinguishable. We believe, however, that whether a transfer of funds to the government is a withholding, estimated tax, advance payment or a deposit, such transfers are functionally the same. Our research reveals that the plaintiff places too much emphasis on the term “deposit.” There are older cases where taxpayers sought to avoid the term, contending that their estimated tax payments were “payments” and not “deposits” in order to bring their estimated tax payments within the Federal revenue statute providing for interest on overpayments. In Moses v. United States (S.D.N.Y. 1939), 28 F. Supp. 817, an executor sent to the collector a check for $20,000 with a letter stating that the check “was to apply on account of the federal estate tax liability” of the deceased. (Moses, 28 F. Supp. at 818.) After the estate tax was finally determined, the executor received a refund without interest, prompting the executor to file a complaint. Relying on the rule that government is not liable for interest without its consent, the court examined the nature of the transaction to determine whether the executor’s advance payment constituted a “payment” of taxes under the applicable statute providing for interest on overpayments. (Moses, 28 F. Supp. at 818.) The court held that the executor’s advance payment was a deposit and, therefore, the executor was not entitled to interest on his refund. (Moses, 28 F. Supp. at 819.) In describing the nature of the transaction, the court wrote:

“In this case the Government was powerless at the time the money was delivered to it to determine how much, if any, was actually due. The excess contained in this taxpayer’s deposit was, in no sense, either payment or overpayment but a deposit made to suit his own convenience. This is true before and after assessment. Although the regulations do not explicitly authorize the Collector to accept unliquidated amounts in payment of estate taxes, we see no reason why any citizen should not have the right to defeat the addition of interest, 26 U.S.C.A. §493(a), by payment if he so desires. Neither do we see why the Government, for so accommodating him, should be required to pay interest on the money it may thus accept. The taxpayer has all the advantage; the computation of the debt is his own, and he is done no injustice by insistence on his own accuracy.” Moses, 28 F. Supp. at 819.

This identical issue was addressed in Busser v. United States (3rd Cir. 1942), 130 F.2d 537. There, the Third Circuit arrived at the same conclusion, holding that an executor was not entitled to interest on a refund because his advance payment was a deposit and not a payment. (Busser, 130 F.2d at 539.) The court applied the same principle, stating that “[t]he question turns upon the application of an appropriate statute for the sovereign is not liable for interest unless there is a statutory requirement or a contract to pay it.” (Busser, 130 F.2d at 538.) These decisions were cited by the United States Supreme Court in Rosenman v. United States (1945), 323 U.S. 658, 662-63, 89 L. Ed. 535, 540, 65 S. Ct. 536, 539, wherein the Court explained that “[m]oney in these accounts is held not as taxes duly collected are held but as a deposit made in the nature of a cash bond for the payment of taxes thereafter found to be due.” Thus, it is clear that in the absence of an applicable statute expressing the sovereign’s consent to pay interest, taxpayers are not entitled to interest on funds deposited with the government that are subsequently refunded after a part of such funds are applied for payment of taxes. It is presumed that the legislature acted with full knowledge of judicial decisions concerning prior and existing law and legislation. (Kozak v. Retirement Board of Firemen’s Annuity & Benefit Fund (1981), 99 Ill. App. 3d 1015, 1018, 425 N.E.2d 1371.) Accordingly, we hold that the State’s use of estate funds deposited pursuant to the Inheritance and Transfer Tax Law to earn interest is not a taking in violation of the United States Constitution or the Illinois Constitution.

Having decided there is no “taking,” we turn to the relevant statutes for determining whether the State is obligated to pay interest when excess funds are refunded to the estate. Section 3 is silent on the subject of interest on refunds for excess deposits. Because a sovereign does not have to pay interest without its consent, such silence discloses an intent to deny interest. (Lakefront Realty Corp. v. Lorenz, 19 Ill. 2d at 423; Schlesinger v. State, 195 Wis. at 368-69, 218 N.W. at 441.) Thus, in the absence of clear language imposing such liability, the State does not have to pay interest. (Lakefront Realty Corp., 19 Ill. 2d at 423.) Further, notwithstanding this rule of statutory construction, it is clear that the General Assembly’s silence on the subject of interest in section 3 was not an inadvertent omission. The clause in dispute here allowing the estate to avoid the addition of interest on unpaid taxes by making a deposit was added to section 3 in 1933. (Ill. Rev. Stat. 1933, ch. 120, par. 377.) As initially approved in 1909, section 25 required the State to pay interest at the rate of 3% per annum on estate tax refunds dealing with conditional or contingent transfers. (Ill. Rev. Stat. 1909, ch. 120, par. 412.) The General Assembly, however, deleted this interest clause in 1937, thereby removing the only provision providing for interest on refunds. (Ill. Rev. Stat. 1937, ch. 120, par. 398.) Thus, the silence on the subject of interest on refunds in section 3 is, if anything, indicative of an intent to deny interest.

In addition to the failure of the legislature to clearly provide for interest on refunds in section 3, there is statutory authority permitting the State Treasurer to invest the estate’s deposit and keep the interest income. Pursuant to “An Act relating to certain investments of public funds by public agencies” (the Public Funds Act) (Ill. Rev. Stat. 1981, ch. 85, par. 902), any public agency may invest public funds and:

“To the extent a public agency has custody of funds not owned by it or another public agency and does not otherwise have authority to invest such funds, the public agency may invest such funds as if they were its own.” (Ill. Rev. Stat. 1981, ch. 85, par. 902.)

The Public Funds Act further provides:

“All earning accruing on any investments or deposits made pursuant to the provisions of this Act shall be credited to the public agency by or for which such investments or deposits were made, except where by specific statutory provisions such earnings are directed to be credited to and paid to a particular fund.” (Ill. Rev. Stat. 1981, ch. 85, par. 902.)

Additionally, section 2 of “An Act in relation to State moneys” (Ill. Rev. Stat. 1985, ch. 130, par. 21) provides in pertinent part:

“All interest received or paid on account of money in the State treasury belonging to or for the use of the State so deposited in banks or savings and loan associations, shall be the property of the State of Illinois. If any moneys held in special funds in the State treasury, not belonging to the State, shall be deposited in banks or savings and loan associations pursuant to the provisions of this Act, the interest received thereon shall be credited to the special fund so deposited.”

The estate’s deposit was collected by the State Treasurer on behalf of the State, and the Inheritance and Transfer Tax Law does not contain any provision directing the State Treasurer to deposit the funds in a “particular fund.” Similarly, the inheritance tax law makes no mention of “special funds.” Compare Shell Oil Co. v. Department of Revenue (1983), 95 Ill. 2d 541, 548-49, 449 N.E.2d 65.

In Shell Oil funds were deposited in a “particular fund.” In Shell Oil the question was whether a taxpayer whose protest had been upheld was entitled to interest income earned on the erroneously assessed taxes that by order of court were paid into a protest fund and held by the State Treasurer as trustee. This case involved the retail occupation tax on sales of jet fuel. Retail taxes were paid under protest pursuant to “An Act in relation to the payment and disposition of moneys received by officers and employees of the State of Illinois by virtue of their office or employment” (the Protest Monies Act) (Ill. Rev. Stat. 1979, ch. 127, par. 170 et seq.). Shell Oil reaffirmed Lakefront Realty, stating “[ijnterest is not normally recoverable, in the absence of a statute or an agreement providing for it.” (Shell Oil Co. v. Department of Revenue (1983), 95 Ill. 2d 541, 546, 449 N.E.2d 65.) Nonetheless, the court awarded the interest income to Shell Oil Company, holding that at no time did the protest fund become the property of the State and that the Treasurer acted as trustee of the protest fund. The Protest Monies Act specifically provides for money paid under protest to be placed by the Treasurer in a special fund to be known as a protest fund until further order or judgment of the court. Ill. Rev. Stat. 1979, ch. 127, par. 172.

In the case before us, there is no statute providing for a “particular fund” to be set up in order to keep the funds segregated, nor do we have a court order directing payment to a “particular fund” to be held by the Treasurer as trustee. Thus, the State Treasurer is authorized to invest the estate’s deposit and keep the interest income.

The plaintiff also contends that equitable considerations require that a constructive trust be imposed. In City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 579, 413 N.E.2d 394, the court reiterated the principle that equity may award interest even though the statute in question does not provide for it. The plaintiff contends that the State Treasurer owes a fiduciary duty to the estate and, therefore, the Treasurer must pass along any benefits gained on the deposit to the estate. The plaintiff urges this court to impose a constructive trust in order to prevent the State from becoming unjustly enriched.

A court will generally utilize the remedy of constructive trust where there exists either fraud or abuse of a confidential or fiduciary relationship. (E.g., People ex rel. Daley v. Warren Motors, Inc. (1985), 136 Ill. App. 3d 505, 511, 483 N.E.2d 427.) In Illinois, however, it has been established that the remedy is not limited to those grounds. (People ex rel. Daley v. Warren Motors, Inc., 136 Ill. App. 3d at 511.) “The purpose of a constructive trust is to compel the party unfairly holding the money or property to convey it to whom it justly belongs,” and the circumstances under which a constructive trust will be imposed are “as numberless as the modes by which property may be obtained through bad faith and unconscientious acts.” People ex rel. Daley v. Warren Motors, Inc., 136 Ill. App. 3d at 510, 511.

In view of our earlier findings, this case does not present the circumstances required to invoke the equitable powers of the court. The State Treasurer is not wrongfully holding property that justly belongs to the estate. Further, in Gonzales v. Danaher (1975), 30 Ill. App. 3d 992, 995, 332 N.E.2d 603, a case dealing with interest income earned on a bail bond, this court rejected the contention that the clerk of the court acted in a fiduciary capacity and applied Lakefront Realty in holding that Gonzales was not entitled to the interest. (See also Thornton, Ltd. v. Kusper (1979), 77 Ill. App. 3d 192, 196, 395 N.E.2d 1050.) Most recently, in Madlener v. Finley (1989), 128 Ill. 2d 147, 154, 538 N.E.2d 520, our supreme court held that government officials do not have a fiduciary duty to invest funds deposited with them in interest-bearing accounts where they are not required by statute to pay interest. Thus, the State Treasurer does not stand in a fiduciary capacity as to the estate. To some, the use of these deposits to earn interest for the State’s benefit may seem unfair, but the question of fairness is one for the General Assembly and not for the judiciary.

In summary, we hold that use of the estate’s deposit to earn interest is not a “taking” of private property for public use without just compensation. Because section 3 is silent on the subject of interest on refunds of excess deposits, the State is not obligated to pay interest on such refunds. Moreover, the State Treasurer is authorized to invest the estate’s funds and keep the interest income under the Public Funds Act. Consequently, there are no equitable considerations requiring imposition of a constructive trust.

For the foregoing reasons the order of circuit court is affirmed.

Judgment affirmed.

FREEMAN, P.J., and WHITE, J., concur.


author: PRESIDING JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE RODRIGUEZ, Defendant-Appellant.
    First District (3rd District)
    No. 1—88—1066
    Opinion filed August 16, 1989.

      Edward D. Stern, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Marie Quinlivan Czech, and Timothy F. Moran, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court.

After a bench trial, defendant, Jose Rodriguez, was found guilty of aggravated battery, armed violence and unlawful use of a weapon by a felon as a result of the shooting of the victim, Edward Cervantes. Defendant was sentenced to six years’ imprisonment on the armed violence offense, which merged with the aggravated battery conviction, and a concurrent five years’ imprisonment on the unlawful use of a weapon offense. He appeals his aggravated battery and armed violence convictions.

Edward Cervantes testified to the following for the State. On October 23, 1986, around 1 a.m., he and about seven fellow members of the Latin King Cobras street gang were passing the intersection of 107th and Calhoun Streets in Chicago on their way to buy liquor. The Cobras had left a wake of a fellow gang member at approximately 10 p.m. the preceding evening and had thereafter begun drinking beer and schnapps. As they approached the intersection of 107th and Calhoun, the Cobras saw four or five other youths, including defendant and Andrea and Mario Espinoza, on the southeast comer. At that time, defendant ran downstairs and Mario ran upstairs into a walk-up at 10703 S. Calhoun. When the Cobras reached the youths remaining at the intersection, they began shaking hands with them. However, Andrea Espinoza went up to Cervantes, shoved him and told him to get the hell out of there. Cervantes and Andrea then began fighting. Within a few seconds, Andrea turned and ran into the same walk-up as defendant had gone into earlier.

Not being deterred by Andrea’s flight, Cervantes gave chase. However, he was stopped short by the appearance of defendant and Mario, who were carrying shotguns. Cervantes, who was then about eight feet away from the pair, began to back away from them. While he was doing so, defendant shot his weapon twice. The first shot hit the ground in front of Cervantes. The second round hit Cervantes in the right thigh. Neither Cerantees nor any of his friends were armed with any weapons. The area of 107th and Calhoun was turf of a street gang called the Party People Organization, of which the Espinozas and two of the boys with them, Omar Diaz and “Andy,” were members. Two of Cervantes’ cohorts, Rodney Roberts and Louis DeLeon, substantially corroborated his version of the shooting, the latter in rebuttal.

Chicago police officer Mike Migliano also testified for the State. After the officer arrived at the scene, he arrested defendant, who was lying on the roof of the building adjoining 10703 South Calhoun. After being transported to the police station, defendant admitted shooting Cervantes because he feared that Cervantes was going to harm him. However, defendant did not tell Migliano that Cervantes had a weapon. Defendant also admitted having buried the shotgun in his backyard. Thereafter, Migliano transported defendant back to the scene and recovered the shotgun from under some shrubbery and dirt.

Andrea Espinoza, called as a witness for Mario, who was tried jointly with defendant, gave the following testimony relevant to the State’s case against defendant.

Mario and Andrea left work, at midnight on October 22, 1986. After they arrived home, two boys approached Mario, Andrea and a couple of their friends. One of the two, who was a Latin King Cobra, began “flashing” a gun in his belt. While Mario and Andrea were standing in front of their apartment, some other boys emerged from the “projects” across the street and threatened to get them because they were insulting their dead friend. Cervantes then began hitting Andrea with a chain. As soon as Andrea was hit, he fell to the ground and covered his head with his hands. Other people then began to hit and kick him. The beating lasted two to three minutes. While he was being beaten on the ground, Andrea heard two gunshots. Thereafter his attackers ran off. Neither Andrea, Mario nor defendant belonged to any street gang. Defendant was not outside with Mario, Andrea and their friends. Andrea surmised that Cervantes was one of the boys who was beating him when the gunshots rang out but subsequently retracted this statement. Andrea received only bruises from the beating and did not seek medical treatment. He did not see defendant with a shotgun that night. While they were beating him, Andrea could see the Cobras holding cans of beer.

Defendant’s wife, Leticia, testified that defendant, who had been home since 6 p.m., and she were watching television in their basement apartment at 10703 South Calhoun on October 23, 1986, at about 1 a.m. At that time, they heard a loud commotion outside. Defendant looked out and told Leticia there was a bunch of people outside. Defendant then went to their bedroom, pulled a gun from under the mattress and left the apartment.

Defendant testified that after obtaining the shotgun from under the mattress he went outside to see what was going on. When he got outside, defendant saw Andrea laying on the ground while being beaten by some people, including the victim. Defendant stated that when he saw Andrea being beaten, he panicked, saw “one of the guys” reaching into his jacket for what he thought was a weapon and was trying to protect his family and Andrea at the same time. When asked where this person was in relation to Cervantes, defendant stated, “They were all together.” Defendant also testified that he was afraid that the people beating Andrea would go into his house. Defendant admitted firing the shotgun twice into the ground. Defendant denied belonging to any street gang.

On cross-examination, defendant testified that he was standing at the fence of his building for about a minute or two before he fired. He also admitted that he was the only person with a weapon. Defendant further stated that he “tried to scare them but they wouldn’t go away.” When asked if he hit Cervantes with his second shot, defendant stated that he “didn’t see because a lot of people fell over where they were running.” He also testified that Cervantes and his friends were beating up Andrea, who was on the ground, when he fired the shotgun. When asked whether the pellets which he fired hit only Cervantes and a young woman with the Cobras, defendant responded that he “didn’t see it.” Defendant also testified that the crowd of people attacking Andrea surrounded the house after his first shot. But after testifying that only “[sjeconds” separated the first and second shots, defendant stated that they surrounded the house after the second shot. Defendant further testified that between the first and second shots the crowd surrounded him and he threw the gun away. Defendant denied that Cervantes was backing away when he fired the second shot.

In announcing it verdicts, the trial court first found that defendant was not outside when the trouble between Cervantes and Andrea Espinoza began. Addressing the reasonableness of defendant’s belief in the necessity to use force as it related to the unlawful use of weapon offense, the court then found that there was no immediacy in the situation defendant encountered necessitating his going outside and using the shotgun. Addressing defendant’s self-defense theory as it related to the armed violence and aggravated battery charges, the court found no immediacy in the threat which Cervantes posed to defendant because defendant could have retreated back into the house.

Opinion

On appeal, defendant contends that his belief in the need to use deadly force to prevent imminent death or great bodily harm to Andrea was reasonable. (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1.) Defendant concedes that, if the testimony of the State’s witnesses was truthful, his use of force would have been unreasonable. However, he argues that his witnesses were more credible. The trial court, defendant notes, did not believe Cervantes’ testimony that defendant was outside when Cervantes and Andrea fought. Defendant also argues that the trial court erred in ignoring his testimony that he saw Andrea being beaten while lying on the ground and, instead, relying upon the lack of any immediacy in the situation given Cervantes’ distance from defendant and defendant’s failure to retreat.

A person may use deadly force to protect himself or another if he reasonably believes that he or the other person is in imminent danger of death or great bodily harm. (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1.) The privilege exists even though the person is mistaken or the danger is only apparent. (People v. White (1980), 87 Ill. App. 3d 321, 409 N.E.2d 73.) The test is what the defendant, as a reasonable man, believed under the circumstances. (White, 87 Ill. App. 3d 321, 409 N.E.2d 73.) Before addressing the merits of defendant’s argument, we must also remind him that it is the correctness of the trial court’s judgment, not its rationale, which is the subject of appellate review. (People v. Norks (1985), 137 Ill. App. 3d 1078, 484 N.E.2d 1261.) As such, we may sustain the judgment on any ground appearing in the record, regardless whether the trial court’s reasoning was incorrect (People v. Merz (1984), 122 Ill. App. 3d 972, 461 N.E.2d 1380) or whether that ground was relied upon by the trial court (People v. Bolden (1987), 152 Ill. App. 3d 631, 504 N.E.2d 835).

In view of the foregoing, we disagree with defendant that the trial court erred in finding him guilty of the offenses charged. As defendant notes, there is no duty to retreat before one is entitled to defend himself or another. (People v Hughes (1977), 46 Ill. App. 3d 490, 360 N.E.2d 1363; People v. Millet (1965), 60 Ill. App. 2d 22, 208 N.E.2d 670.) As such, the trial court erred in relying on defendant’s failure to retreat to find no “immediacy” in the situation he faced.

That error notwithstanding, defendant’s testimony was inadequate, either alone or when viewed in light of other defense evidence, to show that his belief in the need to use deadly force to protect Andrea was reasonable.

Specifically, defendant’s testimony that he. was standing at the fence of the apartment building for about a minute or two before he fired contradicted his testimony that, when he got outside, he saw Andrea lying on the ground while being beaten and “panicked.” Also, defendant’s admission that he was the only person with a weapon contradicted Andrea’s testimony that Cervantes was beating him with a chain. Significantly, defendant never mentioned or alluded to a chain in his testimony.

Moreover, as defendant does not contend that he fired the shotgun in self-defense, the fact that he saw a person reach into his jacket for what he believed to be a weapon is of no avail absent any testimony that he believed the weapon would be used against Andrea. Similarly, because defendant does not contend that he used the shotgun out of fear for his family or dwelling, the fact that he was “trying to protect his family” is also of no avail to him. In this regard, we find both the fear of the person who reached into his jacket and the fear that the crowd would invade his home to be merely products of defendant’s imagination and not based on any reasonable belief. See People v. Limas (1977), 45 Ill. App. 3d 643, 359 N.E.2d 1194.

Defendant’s claim that the crowd surrounded the house after his first shot was also relevant to the reasonableness of his belief in the necessity to fire again. However, the conclusion that this had not, in fact, occurred was amply supported by his admission that only “[s]econds” separated the first and second shots and that the crowd surrounded the house after the second shot. Thus, defendant had no more reason to believe that anyone was threatened with death or great bodily harm at the time of the second shot than at the time of the first. Moreover, it was a reasonable inference from defendant’s testimony that the Cobras posed even less of a danger after the first shot. Defendant admitted that he “didn’t see” whether he had shot Cervantes because a lot of people were running and fell at that time.

Defendant’s own testimony, in toto, fails to convince us that he had a reasonable belief, i.e., the belief of a reasonable man, in the need to use deadly force to defend another under the circumstances of this case. The defense evidence itself revealed beyond a reasonable doubt that any danger to Andrea which defendant apprehended, whether actual or apparent, was wholly insufficient to warrant the use of deadly force against it.

Beyond the fact that defendant’s convictions are amply supported by the inadequacies in his testimony and the other defense evidence, the guilty verdicts are unassailable to the extent that they reflect a credibility determination. It is the function of the trier of fact to determine the credibility of the witnesses and the weight to be given their testimony and its determination will not be disturbed where the evidence is merely conflicting. (People v. Franklin (1985), 130 Ill. App. 3d 514, 516, 474 N.E.2d 776.) In performing that function, a trier of fact is free to accept one part of a witness’ testimony and reject another. (People v. Little (1974), 18 Ill. App. 3d 1081, 1085, 311 N.E.2d 173.) The fact that the trial court did not believe Cervantes’ claim that defendant was outside when he and his cohorts approached did not mean that it was required to accept defendant’s version regarding the circumstances of the shooting itself. See People v. Young (1973), 11 Ill. App. 3d 609, 615-16, 297 N.E.2d 298.

For all of the foregoing reasons, we affirm defendant’s convic- ' tions for aggravated battery and armed violence.

Affirmed.

WHITE and CERDA, JJ., concur.