author: PRESIDING JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY CHANDLER, Defendant-Appellant.
    First District (5th Division)
    No. 1-90-1115
    Opinion filed July 26, 1991.
    Randolph N. Stone, Public Defender, of Chicago (Elyse Krug Miller, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Sta-brawa, and Stephen Ferrucci, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Defendant, Henry Chandler, was convicted of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(a)) and, because he had two prior Class 2 felony convictions, was sentenced to an enhanced term of six years’ imprisonment as a Class X offender (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(c)(8)). On appeal, defendant challenges his sentence as a Class X offender. We consider: (1) whether it was improper to sentence defendant as a Class X offender when there was no evidence presented as to when the prior Class 2 felonies were committed; and (2) whether double jeopardy bars the State from seeking a Class X sentence on remand. For the following reasons, we reverse defendant’s sentence and remand for resentencing.

After a bench trial, the judge found defendant guilty of committing a burglary that occurred on May 8, 1989. For the sentencing hearing, a presentence investigation report was prepared and listed defendant’s prior convictions. That report and defendant’s arrest record show he was arrested for burglary on December 16, 1985, convicted of that offense on June 7, 1986, and sentenced to 30 months’ probation; arrested for theft on May 21, 1986, convicted of that offense on September 11, 1986, and sentenced to two years’ imprisonment; and arrested for robbery on March 21, 1987, convicted of that offense on March 23, 1987, and sentenced to four years’ probation.

At the sentencing hearing, the State requested the trial judge to sentence defendant to an enhanced term as a Class X offender because he had two prior Class 2 felony convictions. The State informed the judge that defendant was convicted for the Class 2 felonies of burglary on July 7, 1986, and robbery on March 23, 1987. Defendant did not challenge his eligibility for Class X sentencing but requested the minimum sentence for a Class 2 felony. The judge sentenced defendant as a Class X offender to six years’ imprisonment.

Defendant now appeals.

Opinion

Defendant argues that the State failed to prove the required elements for a Class X sentence. The Class X sentencing provision states:

“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after [February 1, 1978]; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(c)(8).)

On appeal, defendant contends that there was no evidence presented at the sentencing hearing as to when he committed the prior Class 2 felonies and, without those dates, the dates he was convicted of those felonies were insufficient to prove his eligibility as a Class X offender. The State argues that the Class X sentence was proper because the dates the prior felonies were committed can be inferred from the dates of arrest and conviction for those felonies.

Although defendant failed to object to the Class X sentence at the sentencing hearing or in his post-trial motion, the issue was not waived and this court will consider the issue. People v. Washington (1990), 195 Ill. App. 3d 520, 552 N.E.2d 1067.

We note that the issues involved in this case are currently pending before our supreme court in five consolidated cases. (People v. Hamilton (1990), 198 Ill. App. 3d 108, 555 N.E.2d 785, appeal denied (1990), 135 Ill. 2d 561, consolidated with Nos. 70253, 70302, 70538, 70565.) In Hamilton, the appellate court found that the dates of defendant’s prior arrests and convictions did not establish defendant’s eligibility for Class X sentencing. Without proof of the dates that defendant committed the prior felonies, the court held it was error to sentence defendant as a Class X offender. On the other hand, in People v. Williams (1990), 201 Ill. App. 3d 434, 559 N.E.2d 96, which is consolidated for review with Hamilton, the appellate court reached a different conclusion. The court held that the dates of arrest and conviction for the prior felonies were circumstantial evidence which proved, by inference, that defendant committed the felonies in the sequence required by the Class X statute.

As evidenced by Hamilton and Williams, there is a conflict within the appellate court as to whether a defendant can be sentenced as a Class X offender when the State only presented the dates of arrest and conviction for the prior felonies but not the dates they were committed. Several cases have reached the same conclusion as Hamilton and held that without the dates of commission, the dates of arrest and conviction were insufficient (People v. Shelton (1991), 208 Ill. App. 3d 1094, 567 N.E.2d 680; People v. Brooks (1990), 202 Ill. App. 3d 164, 559 N.E.2d 859; People v. Pietruszynski (1989), 189 Ill. App. 3d 1071, 545 N.E.2d 942), and others have reached the same conclusion as Williams and held that the dates of commission can be inferred from the dates of arrest and conviction (People v. Kinzer (1991), 214 Ill. App. 3d 790, 797; People v. Kennard (1990), 204 Ill. App. 3d 641, 561 N.E.2d 1188; People v. Stewart (1989), 186 Ill. App. 3d 833, 542 N.E.2d 915). This court has previously addressed the issue and stated, in dicta, that the dates of commission of the prior felonies cannot be inferred from the dates of arrest and conviction. (Washington, 195 Ill. App. 3d 520, 552 N.E.2d 1067; accord People v. Lopez (1991), 216 Ill. App. 3d 83, 88.) We will continue to adhere to that position until the issue is resolved otherwise by the supreme court.

In this case, the record shows that defendant was arrested for the first felony on December 16, 1985, and convicted on June 7, 1986, he was arrested for the second felony on March 21, 1987, and convicted on March 23, 1987, and he committed the third felony on May 8, 1989. There was no evidence in the record as to when defendant committed the first or second felony.

The State argues that based on the arrest and conviction dates, this court can infer that the second felony was committed after defendant was convicted of the first felony. This argument is without merit. To be sentenced as a Class X offender, defendant would have had to have committed the second felony between June 7, 1986, the date he was convicted of the first felony, and March 21, 1987, the date he was arrested for the second felony. These dates, spanning only a nine-month period, evidence the possibility that defendant committed the second felony prior to his conviction for the first felony. Therefore, the dates of arrest and conviction do not support an inference that defendant committed the prior felonies in the sequence required for Class X sentencing. As a result, defendant’s sentence as a Class X offender must be reversed and remanded for resentencing.

Defendant also argues that if his sentence is reversed, double jeopardy bars the State from seeking a Class X sentence on remand.

The constitutional prohibition of double jeopardy prevents a prosecution for an offense after an acquittal or conviction of the same offense and prevents multiple punishments for the same offense. (Washington, 195 Ill. App. 3d 520, 552 N.E.2d 1067.) Generally, double jeopardy does not apply to a sentencing proceeding unless the proceeding was “ ‘a trial on the issue of punishment.’ ” People v. Davis (1986), 112 Ill. 2d 78, 82, 491 N.E.2d 1163, 1165, quoting Bullington v. Missouri (1981), 451 U.S. 430, 438, 68 L. Ed. 2d 270, 279, 101 S. Ct. 1852, 1858.

This issue is pending before the supreme court in Hamilton, where the appellate court held that double jeopardy barred the State from seeking a Class X sentence on remand. (Hamilton, 198 Ill. App. 3d 108, 555 N.E.2d 785, appeal denied (1990), 135 Ill. 2d 561.) However, other appellate court cases have reached the opposite conclusion. (Lopez, 216 Ill. App. 3d at 88; Shelton, 208 Ill. App. 3d 1094, 567 N.E.2d 680; Brooks, 202 Ill. App. 3d 164, 559 N.E.2d 859; Washington, 195 Ill. App. 3d 520, 552 N.E.2d 1067.) In Washington, this court held that double jeopardy did not apply to resentencing a defendant to another Class X sentence because the sentencing hearing was not a trial on the issue of punishment. We will follow our holding in Washington until the supreme court decides otherwise. Therefore, in this case, double jeopardy does not prevent the State from seeking a Class X sentence on remand.

Reversed and remanded for resentencing.

MURRAY and GORDON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    MICHAEL H. McMANN et al., Plaintiffs-Appellants, v. AURELIA PUCINSKI, Clerk of the Circuit Court of Cook County, et al., Defendants-Appellees (American Federation of State, County, and Municipal Employees, AFL-CIO, et al., Intervenors).
    First District (5th Division)
    No. 1-90-1421
    Opinion filed July 26, 1991.

      Richard J. Reimer, of Chicago, for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Joan S. Cherry, Karen J. Dimond, and LaVerne Rolle Saunders, Assistant Attorneys, of counsel), for appellees.

      Joel A. D’Alba and Anne Wells Clark, both of Asher, Gittler, Greenfield, Cohen & D’Alba, Ltd., of Chicago, for intervenor Illinois State Federation of Labor, AFL-CIO.
    Thomas J. Edstrom, of American Federation of State, County, and Municipal Employees, AFL-CIO, of Chicago, for other intervenor.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiffs appeal from the denial of their request for preliminary injunction and from the dismissal of their complaint for declaratory judgment and injunctive relief. The undisputed facts are as follows.

In June 1988, a collective bargaining agreement was entered into between the Cook County clerk’s office and the American Federation of State, County and Municipal Employees (AFSCME or Union), effective for the period of December 1, 1987, through November 30, 1990. This agreement provided, among other things, that the AFSCME local union would be entitled to a “fair share” of the costs of collective bargaining from nonunion employees “upon satisfactory demonstration to the County that the Union has more than 50% of the eligible employees in the bargaining unit signed up as dues paying members.”

In August 1988, AFSCME Local 3368 filed a grievance against Aurelia Pueinski, clerk of the circuit court of Cook County (Pueinski or Clerk), asserting that the “fair share provision” (article I, section 4, of the collective bargaining agreement) should have been implemented as of June 1988. The Clerk disputed the application of the fair share provision, contending that the Union had not demonstrated that the requisite number of employees had signed up as dues-paying members of the Union to trigger the provision’s implementation.

In November 1989, the dispute went to arbitration as provided by the collective bargaining agreement. The arbitrator found that the requisite union membership had been sufficiently demonstrated and that the fair share provision should have been implemented effective June 1988.

In a letter dated March 30, 1990, the nonunion employees of the Clerk’s office received notice from the Union that a “fair share” amount would be deducted from their paychecks beginning May 1, 1990. A letter from the Clerk dated April 16, 1990, confirmed that a “fair share” wage deduction would begin May 1, 1990, and also informed employees that “[questions about the challenges to the ‘fair share’ deduction, or the amount itself, should be directed to the Officer of the Day.” On April 25, 1990, however, Pucinski filed a complaint in the circuit court to vacate the arbitrator’s decision and to stay implementation of the dues deduction provision. Pucinski v. American Federation of State, County & Municipal Employees (1990), No. 90-CH-4016.

On April 30, 1990, 670 nonunion employees of the Clerk of the circuit court of Cook County (plaintiffs herein) filed a complaint for declaratory judgment and injunctive relief against their employer, Pu-cinski, as the Clerk of the circuit court of Cook County. Plaintiffs asked the court to temporarily enjoin Pucinski from deducting a fair share amount from their paychecks until it determined whether it was proper for Pucinski to deduct the fair share amount and, upon a ruling in their favor, to permanently enjoin Pucinski from making the deductions. In their complaint, plaintiffs alleged that the deduction of a fair share amount from their paychecks would be a violation of the Illinois Wage Payment and Collection Act (Ill. Rev. Stat. 1989, ch. 48, par. 39m — 1 et seq.), the Illinois Constitution (Ill. Const. 1970, art. I, §2), as well as the collective bargaining agreement between the Clerk and AFSCME Local 3368, because the Union never attained, and still lacked, the greater than 50% membership which was a prerequisite to the “fair share” deduction.

Plaintiffs moved to consolidate their cause of action against Pu-cinski with the action brought by Pucinski against AFSCME (90— CH — 4016) and this motion was granted on April 30, 1990, by Judge Shields. On the same date Pucinski’s emergency motion to stay the arbitrator’s award was denied by Judge Curry. Despite the court’s denial of Pucinski’s motion for a stay, plaintiffs filed a separate motion for preliminary injunction on May 1, 1990, again asking the court to enjoin the Clerk from making the deductions from their paychecks pending the determination on their complaint.

Also on May 1, 1990, both AFSCME and the Illinois State Federation of Labor and Congress of Industrial Organizations (State Federation) filed motions to intervene in the plaintiffs’ action, and on May 7, 1990, prior to a ruling on their motion to intervene, the State Federation also filed a motion to dismiss plaintiffs’ complaint, pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2-615).

On May 9, 1990, both AFSCME and the State Federation were allowed to intervene and a hearing was held on plaintiffs’ motion for preliminary injunction. Not only was plaintiffs’ motion for injunctive relief denied, but the trial court granted the State Federation’s motion to dismiss the complaint. Plaintiffs did not object to the entry of the order, nor did plaintiffs file any motions with the trial court subsequent to the dismissal of their complaint. Instead, plaintiffs filed the present appeal in which they contend that jurisdiction over the matter is conferred upon this court by virtue of Supreme Court Rule 303 (107 Ill. 2d R. 303) and allege the following errors:

1. That the trial court improperly dismissed plaintiffs’ complaint without notice and without an opportunity to be heard.
2. That the trial court erred by denying plaintiffs’ request for a preliminary injunction.
3. That the trial court erred by allowing the State Federation to intervene.

Plaintiffs’ position on appeal is that AFSCME had a continuing obligation to maintain a 50% membership quota as a condition precedent to their ability to obtain the fair share amount from nonmember employees. While acknowledging that arbitration on the issue took place, plaintiffs maintain that their lack of participation in the arbitration makes the arbitrator’s decision nonbinding on them and, further, that the arbitrator’s decision as to the number of Union members as of June 1988 is irrelevant, since the right to “fair share” is contingent upon the continued maintenance of more than 50% membership.

Before addressing the merits of the issues raised, we must first address the issue of this court’s jurisdiction over the appeal. We note that in plaintiffs’ statement of jurisdiction in their original brief on appeal they indicated that jurisdiction was based upon Illinois Supreme Court Rules 304(a) and 307(a)(1). Plaintiffs apparently cited to Rule 304(a) because their claim had been consolidated with Pucinski’s complaint against AFSCME and so they believed that the dismissal of their complaint did not dispose of the entire matter before the court.

Supreme Court Rule 304(a) states that, where multiple parties or multiple claims for relief are involved in an action, an appeal may be had from a final judgment as to one or more of the parties or claims even if the entire proceeding is not disposed of, if the trial court makes an express written finding that “there is no just reason for delaying enforcement or appeal” of the order appealed from. (134 Ill. 2d R. 304(a).) In the present case no such findings were made.

The order appealed from stated, in pertinent part:

“3. Plaintiff’s Motion for Preliminary Injunction is denied.
4. Intervenor State Fed. Motion to Dismiss the Complaint is granted.
5. There is no just cause to delay the entry of this order.”

Without addressing the ramification of the consolidation of the two cases, and perhaps recognizing that the “magic language” of Rule 304(a) was lacking, the briefs filed in this appeal by defendant Pucinski and the intervenors, AFSCME and the State Federation, challenged plaintiffs’ statement of jurisdiction, arguing that the appeal was not governed by Rule 304(a), but rather Rule 303. It was their position that the trial court’s dismissal of plaintiffs’ complaint was a final order which disposed of the entire action.

In their reply brief, plaintiffs amended their statement of jurisdiction, averring that their complaint had only been consolidated for hearing with Pucinski’s complaint and, thus, the two complaints were only to be treated as companion cases. Therefore, plaintiffs now contended, in agreement with defendant and intervenors, the order appealed from was a final order which terminated all issues as to all parties and that jurisdiction was proper pursuant to Supreme Court Rule 303.

We agree that the consolidation of the two complaints so that they could be heard as companion cases did not cause them to be joined as a single cause of action for the purposes of appeal. However, this decision does not eliminate our concern as to our jurisdiction over the appeal. The question that is raised in this court’s mind as to the finality of the order stems from the fact that the trial court merely granted the State Federation’s motion to dismiss, but did not specify whether the dismissal of the complaint was “with prejudice” or “without prejudice.”

Generally, a dismissal of a complaint is not a final and appeal-able order unless the court states that the dismissal is “with prejudice.” (J. Eck & Son, Inc. v. Reuben H. Donnelley Corp. (1989), 188 Ill. App. 3d 1090, 1093, 545 N.E.2d 170.) On the other hand, an order of dismissal which specifies that it is “without prejudice” is non-appealable on its face. (Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480; O’Hara v. State Farm Mutual Automobile Insurance Co. (1985), 137 Ill. App. 3d 131, 484 N.E.2d 834.) In the present case the trial court did not include either language in its order of dismissal. For this reason it is necessary to look to the substance of what was actually decided by the dismissal order to determine if the order is a final and appealable one. O’Fallon Development Co. v. City of O’Fallon (1976), 43 Ill. App. 3d 348, 356 N.E.2d 1293.

Our review of the trial court’s comments at the preliminary injunction hearing indicates to this court that the dismissal of the plaintiffs’ complaint was with prejudice. The trial court found that the plaintiffs “have no individual rights in this dispute” and that their “position has been heard and adjudicated and is not available for further judicial action.” The trial court also found that the plaintiffs’ complaint was a collateral attack on the arbitrator’s decision regarding the Union’s compliance with the 50% prerequisite to the fair share implementation and that they “had no likelihood of success on the merits” in their cause.

It seems clear from these comments that the trial court envisioned that it was terminating the cause of action and, therefore, we believe that the dismissal was with prejudice. The fact that the trial court suggested that the plaintiffs were still free to challenge the arbitrator’s decision by seeking to intervene in the complaint filed by the Clerk or pursue some other avenue does not alter the fact that the trial court believed that the present action was not viable.

Having found that this court has jurisdiction over the appeal, we must now consider whether the dismissal was proper. Plaintiffs’ argument is that the trial court’s dismissal order is void because they did not receive proper notice or have an opportunity to be heard. We find no merit to this argument.

Although it may have been error for the trial court to have entertained the motion to dismiss at the hearing on plaintiffs’ motion for preliminary injunction (see Alper Services, Inc. v. Wilson (1980), 85 Ill. App. 3d 908, 407 N.E.2d 677), an order is not rendered void because of error or impropriety, but only by lack of jurisdiction. (Vulcan Materials Co. v. Bee Construction (1983), 96 Ill. 2d 159, 449 N.E.2d 812.) Moreover, in this case plaintiffs waived the error by failing to object to the court’s ruling on the motion at the hearing and by failing to bring the issue to the attention of the trial court in the form of a motion to vacate.

Furthermore, even if plaintiffs had not waived the error, we would not find it necessary to reverse the dismissal since plaintiffs were not prejudiced by the cited errors. In this case plaintiffs’ complaint sought injunctive relief, and the rationale set forth by plaintiffs in their complaint regarding their entitlement to this injunctive relief was identical to the rationale espoused in their motion for preliminary injunction. Thus, by having an opportunity to be heard on the matter of the preliminary injunction, plaintiffs fully and comprehensively argued the merits of their claim and were not prejudiced by the fact that they were not given a separate opportunity to be heard on the matter of the dismissal of their complaint.

Ironically, plaintiffs do not question the substantive merits of the trial court’s decision to dismiss their complaint, but rather, plaintiffs next argue that the trial court erred by denying their motion for preliminary injunction. This issue, however, is moot (Gilpin v. American Federation of State, County, & Municipal Employees (7th Cir. 1989), 875 F.2d 1310) and need not be addressed. Nevertheless, we shall address the issue of plaintiff’s entitlement to declaratory and injunctive relief.

An injunction, whether preliminary or permanent, is an extraordinary remedy, the use of which is limited to those instances where the remedy at law is inadequate and serious irreparable harm would result without immediate relief. (Sadat v. American Motors Corp. (1984), 104 Ill. 2d 105, 115, 470 N.E. 2d 997.) Although the party seeking a preliminary injunction need not carry the same burden of proof as is necessary to support the issuance of a permanent injunction, in both instances the party must establish, through well-pled facts, that: (1) he possesses a clearly ascertainable right or pro-tectable interest which will suffer irreparable damage in the absence of relief, and (2) he has an inadequate remedy at law. Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 387, 483 N.E.2d 1271.

In the present case it is undisputed that the plaintiffs have a protectable interest in their salaries. However, plaintiffs failed to demonstrate the manner in which they would have suffered irreparable harm. At best, plaintiffs indicated that they would be deprived of a portion of their salaries during the pendency of the dispute between the Clerk’s office and AFSCME. Such potential monetary damages do not amount to serious and irreparable harm.

More importantly, plaintiffs failed to show that they were without an adequate remedy at law. We agree with the trial court that plaintiffs did, in fact, have an adequate remedy at law of which they did not avail themselves. A procedure was set forth within the collective bargaining agreement whereby nonunion employees, such as plaintiffs here, could challenge fair share deductions through the State Labor Board. The collective bargaining agreement stated that “Objections to the amount of fair share deductions shall be resolved by the Illinois Local Labor Relations Board according to its rules and regulations.” We do not believe that this language limited the ability of nonunion employees to object to the fair share deduction strictly on the basis of the dollar figure, but rather provided nonunion employees, such as plaintiffs, with a means to challenge the propriety of the entire fair share fee, including the Union’s need to comply with the membership prerequisite to the fair share deduction.

Lastly, we shall not disturb the trial court’s ruling which allowed the State Federation to intervene in this action. A trial court may exercise discretion in granting such a petition (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 415 N.E.2d 1034), and we do not find that in this instance it clearly abused its discretion in doing so.

For all the reasons cited above, we affirm the order of the trial court which denied the plaintiffs’ motion for preliminary injunction and dismissed the complaint.

Affirmed.

GORDON and McNULTY, JJ., concur.


text:
    KEITH GAYLE, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees.
    First District (5th Division)
    No. 1-00-3240
    Opinion filed July 26, 1991.

      Robert R. Cohen and Scott Downing, both of Edwin F. Mandel Legal Aid Clinic of the University of Chicago Law School Legal Aid Bureau, of Chicago, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Alison O’Hara, Assistant Attorney General, of Chicago, of counsel), for respondents Illinois Human Rights Commission and Illinois Department of Human Rights.
    Lawrence I. Kipperman and Glenn D. Newman, both of Sidley & Austin, of Chicago, for respondent Viskase Corporation.
   JUSTICE MURRAY

delivered the opinion of the court:

Pursuant to Illinois law (Ill. Rev. Stat. 1989, ch. 68, par. 8 — 111; 134 Ill. 2d R. 335), Keith Gayle (Gayle) appeals directly to this court for review of a final order of the Illinois Human Rights Commission (IHRC or Commission), denying him relief after he filed charges against the Viskase Corporation (Viskase) alleging discrimination in hiring. Gayle contends that the Commission erroneously dismissed his charge of discrimination for lack of substantial evidence and that procedures followed by the Illinois Department of Human Rights (Department) in investigating the charge were inadequate and violated his constitutional right to due process and equal protection. For reasons that follow we affirm the order of the Commission.

According to the record, Gayle is a Jamaican-born black man who speaks with a Jamaican accent and is a member of the Ethiopian Orthodox Church, one of the two fundamental branches of the Rastafarian religion. As an orthodox follower of his religion, he believes that he is forbidden to cut the hair on his head with sharp objects and, for this reason, wears a beard and keeps his hair in a fashion commonly referred to as “dreadlocks.”

On October 23, 1986, Gayle, while employed by Manpower Temporary Services, was assigned to work at Yiskase as a mail handler. His employment at Viskase was to be temporary, while the company searched for a permanent replacement for the previous worker, a black man, who had been promoted. When Gayle learned that the company was looking to hire someone to fill the position permanently, he asked if he could apply and was told by Carol Biske, supervisor of office services at Viskase, to fill out an application.

According to the record, after Gayle inquired about the permanent position, Biske called Manpower Temporary Services, at which time she indicated that Gayle was being considered for the permanent position but that Gayle’s grooming and appearance needed attention. A representative at Manpower Temporary Services suggested that Biske speak directly to Gayle about his appearance but noted that she thought his appearance “was related to his heritage.”

On Monday, November 3, 1986, Gayle was interviewed for the mail handler position by M. D. Fields and Ms. Biske. Allegedly, during the interview with Biske, Gayle was told that initially there had been a lot of questions about his appearance but that his supervisor reported that he had done a good job during the week that he had worked at the company. However, Biske also allegedly told him that the company was conservative and that “his appearance was not what the company was looking for.” She then told him that the position was no longer available and that his temporary services would no longer be required.

Gayle does not allege that he ever told Biske that he had religious and cultural reasons for wearing his hair in the fashion that he did. Additionally, eight other applicants were interviewed for the position and Viskase subsequently hired a white female, who had three years of mail room experience, to fill the position.

Believing that he had been discriminated against because of his appearance, which was directly related to his race, religion and his national origin, in violation of the provisions of the Illinois Human Rights Act (IHRA or Act) (Ill. Rev. Stat. 1985, ch. 68, par. 1 — 101 et seq.), Gayle filed a charge against the Viskase Corporation with the Illinois Department of Human Rights on November 10, 1986. An investigation of Gayle’s charge was undertaken by the Department and, at the conclusion of the investigation, Gayle’s charge was dismissed for lack of substantial evidence. Ill. Rev. Stat. 1985, ch. 68, par. 7— 102.

As provided for in the Act, Gayle sought review of the dismissal by the IHRC. Gayle’s charge was then reviewed by a three-member panel of the Commission and, in an order dated November 14, 1989, the dismissal was affirmed, with one panel member dissenting.

Gayle then requested, and was granted, a rehearing by the full Commission. Oral argument was heard, after which the full Commission, with 2 of the 11 commissioners dissenting, concluded in an 18-page written decision that there was a lack of substantial evidence to support all aspects of Gayle’s charges. The Commission then entered a final order, dated October 10, 1990, affirming the dismissal of Gayle’s charge. Gayle now appeals directly to this court for review of the Commission’s order, raising constitutional, evidentiary, and procedural questions.

With respect to the constitutional issues, Gayle contends that he was denied due process and equal protection. Specifically, Gayle contends that because his charge was filed in 1986, prior to certain amendments to the Act, he was not provided with a copy of Viskase’s verified response or given an opportunity to reply to such response. Consequently, he argues, relying on Lemon v. Tucker (N.D. Ill. 1988), 695 F. Supp. 963, that his due process rights were violated and that his charge should be reinstated and a new investigation undertaken. He also argues that his due process rights were violated in that (1) he was not supplied with the substance of the evidence relied upon by the Department, (2) the Department investigated the charge via ex parte communications with the respondent, and (3) he was not allowed to cross-examine witnesses or compel them, by means of subpoena, to testify. Additionally, Gayle contends that the Act violates equal protection guarantees because it treats employees differently than it treats employers and because it denies employees a full evi-dentiary hearing, thereby treating them differently than other types of persons seeking to protect their interests.

Gayle apparently misapprehends the roles of the Department, the Commission, and the court in the procedures that Illinois has adopted to consider complaints alleging violations of a person’s civil rights. As stated in Jabbari v. Human Rights Comm’n (1988), 173 Ill. App. 3d 227, 232, 527 N.E.2d 480, “the Department is the investigatory agency, whose duties commence when a charge is filed and end when the Department files a complaint with the HRC, the adjudicatory agency. The HRC’s duties commence when the complaint is filed by the Department or when a party files a request for review and ends when the HRC issues an order.” The IHRC’s final order is then subject to judicial review, at which time the findings of fact are held prima facie correct and the decision sustained unless contrary to the manifest weight of the evidence. Ill. Rev. Stat. 1985, ch. 68, par. 8— 111.

In this case the charge filed by Gayle was dismissed by the Department for lack of substantial evidence and no complaint was ever filed with the IHRC. Consequently, this case never advanced beyond the investigatory stage. Accordingly, the “full panoply” of due process rights need not have been afforded him. See Hannah v. Larche (1960), 363 U.S. 420, 4 L. Ed. 2d 1307, 80 S. Ct. 1502.

Gayle’s heavy reliance on Lemon v. Tucker as support for his due process arguments is misplaced for several reasons. First, the import of the Lemon decision is questionable at best. Lemon was a class action suit which challenged the constitutionality of the procedures for processing claims under the IHRC. The court held that the procedures, as set forth in the Act prior to its amendment in September 1987, violated a claimant’s due process rights because they did not provide claimants with the right to a verified response or an opportunity to reply to the defenses. The court ordered that the class was entitled to reinstatement of their claims so that they could be processed under the new procedures.

It is noteworthy, however, that the class of persons that was certified as plaintiffs by the court was limited to those individuals whose claims were not governed by the amendments, but specifically excluded those individuals who were entitled to an evidentiary hearing by virtue of the fact that their claim had not been fully processed within 300 days of filing. (See Ill. Rev. Stat. 1987, ch. 68, pars. 7— 102(G)(1), (G)(2).) Moreover, in a later amended opinion, issued after reconsideration, the Lemon court’s initial recommendation as to relief was stricken. The court found that the procedural deprivations did not so undermine the proceedings that they lacked legitimacy and that, balanced against the administrative burden in reopening the cases, retroactive relief in the form of reinstatement of claims was not warranted.

In the present case, despite the fact that Gayle’s claim was filed in 1986, prior to amendment of the Act, his claim was not processed within 300 days of filing and he was entitled to an evidentiary hearing. Thus the Lemon opinion would not apply. Furthermore, Gayle, having raised this issue in his petition for review before the Commission, was granted an evidentiary hearing, at which time he was made aware of the responses and defenses raised by Viskase and had the opportunity to reply. Thus, his initial deprivation is of little consequence.

In addition, contrary to Gayle’s portrayal, Lemon does not stand for the proposition that the process due a claimant filing a charge pursuant to the Illinois Human Rights Act must be complete. Rather, it reaffirms earlier case law which holds that due process is a flexible concept which allows for procedural protections that may vary as the situation demands. (See Walters v. National Association of Radiation Survivors (1985), 473 U.S. 305, 87 L. Ed. 2d 220, 105 S. Ct. 3180; Mathews v. Eldridge (1976), 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893; Morrissey v. Brewer (1972), 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593.) Accordingly, Lemon states that, because there exists a legitimate and significant State interest in providing a simple, non-adversarial procedure for determining whether claims have merit, the procedures set forth in the amended Act for investigating claims, although they do not allow for some procedural protections such as cross-examination of witnesses, etc., do not deny a claimant due process.

Gayle’s equal protection claims are also without merit. In Jab-bari, the court rejected arguments identical to the ones posited by the claimant here, finding that such disparate treatment arguments “ex-emplif[y] the erroneous conclusions which can result from the failure to properly distinguish between an investigation and an adjudication.” Jabbari, 173 Ill. App. 3d at 234.

Stripped of his procedural due process arguments, the crux of Gayle’s appeal is that, contrary to the Commission’s conclusion, there was adequate evidence, either direct or indirect, to support the filing of a discrimination complaint. Gayle asks us to reject the findings made by the hearing officer, a panel of commissioners and, later, by the full Commission, that Viskase was unaware that Gayle’s appearance was related to his race, religion or national origin, and that its hiring of a white female was based upon her greater experience.

When this court is called upon to review a final order of the Commission, its findings on questions of fact are to be given great deference and sustained unless they are found to be against the manifest weight of the evidence. (Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 545 N.E.2d 684.) Based upon this standard we may not reverse the Commission’s decisions because the record reveals that (1) Gayle presented no evidence to show that Viskase, or any of its employees involved in the hiring process, knew or should have known that his hair style was mandated by his religion or national origin, and (2) Gayle was unable to present any substantial evidence that Viskase’s articulated reason for not hiring him, i.e., the mailroom experience of the other applicant, was merely a pretext for discrimination. In Gayle’s argument that Viskase’s articulated reasons for hiring another candidate are pretextual, he uses circular reasoning, stating that the “indirect” proof of pretext can be derived from the direct proof that he was rejected based upon his appearance. However, the material issue, which Gayle disregards, is that discrimination based upon appearance is not illegal discrimination unless it can be linked to the employer’s knowledge that the appearance was a reflection of the individual’s race, religion, or national origin. It is this factor which is missing from the equation in this case. Consequently, we do not find that the Commission’s decision was against the manifest weight of the evidence.

Gayle raises two final issues, that the Commission’s decision to dismiss his charge should be vacated because: (a) the Department’s investigation was inadequate, and (b) because the Department did not oppose his request for review. Neither of these arguments is persuasive. In the first instance, it is up to the Commission to determine the sufficiency of the Department’s investigation, not the claimant. If, however, the claimant does not believe that the Department’s report is sufficient, he/she may submit supplemental evidence to the Commission for its review. (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 103(B).) In this case, Gayle had two separate opportunities to supplement the Department’s report with additional evidence that he felt was pertinent to the Commission’s decision.

Lastly, we agree with the Commission that it was not required to vacate the Department’s dismissal of Gayle’s charge by the mere fact that the Department’s response to Gayle’s request for review was the single statement that it “elects to make no further response to Complainant’s Request for Review.” This court does not interpret the Department’s response as an abandonment of its earlier position as set forth in its written report, but rather as an acquiescence to the review process available to the complainant. Although the Department’s failure to oppose a request for review may “authorize” the Commission to vacate the order of dismissal, it does not require that result.

For all the reasons set forth above, we affirm the order of the Illinois Human Rights Commission dismissing Gayle’s discrimination complaint.

Affirmed.

GORDON and McNULTY, JJ., concur.

      The record indicates that Gayle listed his religion as Jewish in his original discrimination charge against the Viskase Corporation because Rastafarians consider themselves to be descendants of the Israelite nation.


author: JUSTICE McNAMARA

text:
    LINDA CROCKETT, Appellant, v. THE INDUSTRIAL COMMISSION et al. (American Airlines, Appellee).
    First District (Industrial Commission Division)
    No. 1-90-2631WC
    Opinion filed July 26, 1991.

      Rittenberg & Buffen, Ltd., of Chicago (Ivan M. Rittenberg, of counsel), for appellant.
    Law Offices of Jobin & Flynn, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Linda Crockett, sought workers’ compensation benefits for lower back, knee and neck injuries following a work accident sustained in the course of employment with respondent, American Airlines. The arbitrator awarded petitioner medical benefits and $416.25 per week for a period of 52 weeks (June 14, 1987, to September 1, 1988, and October 7, 1988, to July 20, 1989) as temporary total disability. The Industrial Commission (Commission) affirmed the arbitrator’s decision awarding petitioner temporary total disability benefits. The Commission disallowed petitioner’s claim for penalties and attorney fees pursuant to sections 16, 19(k), and 19(1) of the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, pars. 138.16, 138.19(k), (1). The circuit court of Cook County modified the decision of the Commission regarding petitioner’s weekly wage rate of temporary total disability and confirmed that she was not entitled to penalties and attorney fees. Petitioner’s sole challenge on appeal pertains to that portion of the Commission’s order disallowing the imposition of penalties and attorney fees.

Petitioner, age 39, was employed by American Airlines as a flight attendant. For the past 17 years, petitioner has been flight certified by respondent’s medical department. During a flight from Puerto Rico to Chicago on June 14, 1987, petitioner sustained an injury while walking to the forward part of the cabin when the heel of her shoe caught in the rug near the galley. Petitioner twisted the lower part of her body while avoiding the jump seat, and noticed pain in her knees, neck and lower part of her back. Upon arriving at O’Hare Airport, petitioner was transported to Resurrection Immediate Care Center.

On June 23, 1987, petitioner sought medical treatment from Dr. Olthoff at Chicago Osteopathic Hospital, complaining of pain in her back, right leg and neck. An X ray revealed partial sacralization of L5 at the right. Dr. Olthoff attributed petitioner’s condition to the work injury. Petitioner received physical therapy including manipulations and acupuncture on numerous occasions from June through September 1987. In a letter dated July 29, 1987, Dr. Olthoff opined that with physical therapy, complete resolution of pain would occur within 4 to 12 weeks. Petitioner received temporary total disability benefits from the date of injury until she returned to work on September 1,1987.

Petitioner testified that in October 1987, after receiving physical therapy, the lower back pain and numbness in her leg subsided, but periodically returned. Petitioner also complained that muscle spasms in her neck continued to bother her. Petitioner was referred to Dr. Michael Thomas at Chicago Osteopathic Hospital.

On November 12, 1987, Dr. Thomas referred petitioner to Dr. John Kenny, a chiropractor. Dr. Kenny ordered petitioner to undergo an EMG, which showed no clear cut indication of a lower motor neuron lesion. Dr. Kenny performed numerous chiropractic manipulations for petitioner’s neck and low back from November 1987 through May 1988. In a progress report dated December 15, 1987, petitioner’s current status is described as 50% to 60% improved, and the prognosis is “guarded, but favorable.”

Dr. Kenny informed respondent in a letter dated January 26, 1988, that petitioner was currently under his care for a low back condition sustained while at work on June 14, 1987, and recommended that she be placed on light duty to avoid pushing and pulling of carts.

On April 23, 1988, as petitioner was home preparing for work, her right leg buckled and she twisted her lower back while carrying luggage down the stairs. Although petitioner did not fall, she thought at the time that she had twisted her ankle. Petitioner reported this incident to her supervisor, James Moses, and to Dr. Kenny, who prepared two reports of the incident and forwarded them to respondent. On cross-examination, respondent asked petitioner if she told Moses that she had fallen down the stairs in her garage. Petitioner denied making the statement, but respondent never called Moses as a witness.

In a report dated April 26, 1988, Dr. Kenny diagnosed her condition as “re-exacerbation of lumbar sprain/strain.” In a report on May 3, 1988, Dr. Kenny opined that petitioner’s “current low-back injury is a re-exacerbation of her previous injury that was treated in November” and recommended further examination by respondent’s company doctor prior to returning to work. Dr. Kenny subsequently moved his practice out of State, and petitioner received no treatment from May through October 1988. Prior to moving, Dr. Kenny referred petitioner to Dr. Angelo Larcher.

On June 30, 1988, petitioner was examined by Dr. Barry L. Fischer. Dr. Fischer diagnosed petitioner’s condition as a lumbosacral strain injury with a loss of range of motion of the lumbar spine in flexion and extension; straight leg raising limited bilaterally, more so on the right, indicating lumbar root irritation. It was Dr. Fischer’s opinion that petitioner sustained an injury resulting in permanent partial disability to the right leg of moderate extent with some additional industrial loss of the left leg.

Respondent’s physician, Dr. Kowalsky, removed petitioner from work status on October 7, 1988, apparently on the basis that the incident of April 23, 1988, was an intervening accident and not work related. On October 27, 1988, petitioner sought treatment with Dr. Per Frietag of Head Orthopedic Surgery Specialists concerning complaints of numbness in her leg, back pain, and stiffness in the neck. Petitioner testified that she experienced these problems continuously from March through October, and that the pain was more severe at certain times. Dr. Frietag referred petitioner for an MRI on November 3, 1988, which showed a small central herniation at L4-L5 which did not seem to be producing any nerve root compression. Dr. Frietag prescribed physical therapy to be administered by Dr. Larcher and continued treating petitioner through December 1988.

In November 1988, Dr. Frietag advised petitioner that he would recommend surgery if her condition did not improve after physical therapy. In December 1988, Dr. Frietag released petitioner to return to light duty work, provided that she did not perform any lifting over 25 pounds, and no stooping or bending.

Petitioner testified that in January 1989 she noticed that her condition was improving and inquired whether a light-duty position had become available. In February 1989, respondent offered petitioner a position in passenger sales at its Schaumburg facility, but she was unable to accept because of the unavailability of public transportation to that location. (As petitioner was under medication, pain killers, and muscle relaxants, she was not permitted to drive.)

Dr. Frietag referred petitioner to Dr. Spiros G. Stamelos in February 1989. In a letter dated February 26, 1989, Dr. Stamelos opined that petitioner had been plagued with a work-related injury that occurred on June 14, 1987, resulting in bothersome back pain and discomfort that required her to be treated by several orthopedic and osteopathic doctors.

In his deposition, Dr. Stamelos stated that petitioner complained of numbness in her legs, that she could not run, and that her activities were restricted because of the numbness and pain she was experiencing. Petitioner’s L4-L5 levels were herniated. On April 27, 1989, petitioner underwent a percutaneous automated diskectomy of L4-L5. After petitioner successfully recovered from surgery, Dr. Stamelos released her to return to full-time work on July 17,1989.

In a letter dated June 30, 1989, Dr. Stamelos stated that petitioner’s long history of severe back pain and leg pain was treated in numerous ways without much success. Dr. Stamelos further stated that petitioner’s injury was work related, as manifested by the numbness and thigh pain, and that it affected her working potential.

On June 7, 1989, a petition for an immediate hearing under section 19(b — 1) was filed after respondent refused to pay petitioner’s medical expenses incurred after March 14, 1988 (including the cost of the MRI and a portion of Drs. Frietag’s and Larcher’s medical bills). Petitioner subsequently filed for bankruptcy.

The arbitrator concluded that as a result of the injury sustained during the course of employment on June 14, 1987, petitioner was temporarily totally disabled for a period of 52 weeks and was entitled to $11,080.02 for reasonable and necessary medical expenses.

Respondent sought review, but the Commission upheld the arbitrator’s decision. The Commission found that petitioner did not sustain an intervening accident on April 23, 1988, and that the work injury itself caused her subsequent medical problems. Thus, the chain of causation had not been broken. The Commission, however, found the imposition of additional compensation and penalties inappropriate, as it was not unreasonable for the respondent to believe that an intervening cause had occurred. The circuit court confirmed the decision of the Commission as to penalties and attorney fees.

The Act provides an income stream to an injured worker, who is typically left without income while he is disabled. (Avon Products, Inc. v. Industrial Comm’n (1980), 82 Ill. 2d 297, 412 N.E.2d 468.) Sections 19 (k) and (1) are intended to prevent bad-faith and unreasonable withholding of compensation benefits from injured workers. (Board of Education v. Industrial Comm’n (1982), 93 Ill. 2d 1, 442 N.E.2d 861.) The penalty section provides in pertinent part as follows:

**§16 ***
* * *
Whenever the Commission shall find that the employer, his or her agent, service company or insurance carrier has been guilty of delay or unfairness towards an employee in the adjustment, settlement or payment of benefits due such employee *** or has been guilty of unreasonable or vexatious delay, intentional under-payment of compensation benefits, or has engaged in frivolous defenses which do not present a real controversy within the purview of the provisions of paragraph (k) of Section 19 of this Act, the Commission may assess all or any part of the attorney’s fees and costs against such employer and his insurance carrier.” Ill. Rev. Stat. 1985, ch. 48, par. 138.16.

Where a delay has occurred in payment of workers’ compensation benefits, the employer bears the burden of justifying the delay. (Board of Education v. Industrial Comm’n (1982), 93 Ill. 2d 1, 442 N.E.2d 861, citing City of Chicago v. Industrial Comm’n (1976), 63 Ill. 2d 99, 345 N.E.2d 477.) The test is whether the employer’s reliance was objectively reasonable under the circumstances. (Consolidated Freightways, Inc. v. Industrial Comm’n (1985), 136 Ill. App. 3d 630, 483 N.E.2d 652.) Whether an employer has acted reasonably in refusing to pay benefits is to be decided on a case-by-case basis; and whether the employer's conduct justifies the imposition of penalties is to be considered in terms of reasonableness. (McKay Plating Co. v. Industrial Comm’n (1982), 91 Ill. 2d 198, 437 N.E.2d 617.) This is a question of fact, and a court will not disturb the Commission’s determination unless it is contrary to the manifest weight of the evidence. (Board of Education v. Industrial Comm’n (1982), 93 Ill. 2d 1, 442 N.E.2d 861.) The employer bears the burden of justifying the delay in paying the benefits. City of Chicago v. Industrial Comm’n (1976), 63 Ill. 2d 99, 345 N.E.2d 477.

After careful review of the record in this case, we find that respondent’s actions in delaying section 8(b) benefits to petitioner fails to meet the objective standard of reasonableness as set forth above. At the outset, we note that though petitioner returned to work on September 1, 1987, she continued to experience lower back pain, numbness in her legs, and neck pain. As a result, she began receiving chiropractic manipulations from Dr. Kenny in November 1987, and continued treatments through May 1988. Dr. Kenny described petitioner’s status as “50-60%” improved in a progress report dated December 15, 1987; subsequently, on January 26, 1988, Dr. Kenny ordered that she be placed on light duty.

While the Commission stated that it was not “unreasonable for respondent to believe that an intervening accident had occurred” on April 23, 1988, when petitioner’s leg buckled while she was carrying luggage, we find that determination to be against the manifest weight of the evidence. Immediately after her leg buckled in this incident, petitioner informed Dr. Kenny, who diagnosed petitioner’s condition as a “re-exacerbation of lumbar sprain/strain”; moreover, that evaluation was repeated in his report dated May 3, 1988. (Emphasis added.) Similarly, Dr. Fischer diagnosed petitioner’s condition on June 30, 1988, as a “lumbosacral strain injury” resulting in permanent partial disability to the right leg.

Petitioner testified that she experienced numbness in her leg, back pain and stiffness in the neck continuously from March through October 1987. Nevertheless, petitioner continued to work in spite of her pain and discomfort until respondent’s physician, Dr. Kowalsky, removed her from work status on October 7, 1988. Significantly, petitioner inquired of respondent as to why her benefits were ceased. Respondent’s agent replied in writing that Dr. Kowalsky had informed respondent that petitioner’s present condition was not work related. Yet respondent offered no evidence from Dr. Kowalsky, thus leaving as unrebutted the medical evidence offered by petitioner that the incident of April 23, 1988, was not an intervening accident.

Shortly after Dr. Kowalsky made his decision, on November 3, 1988, petitioner underwent an MRI and continued on a course of extensive physical therapy with Dr. Larcher. Finally, petitioner’s low back injury culminated in a percutaneous automated diskectomy on April 27, 1989. Petitioner’s surgeon, Dr. Stamelos, cited the work-related injury sustained on June 14, 1987, as the source of her bothersome back pain and discomfort that required treatment by several orthopedic and osteopathic doctors.

We find the extensive medical evidence in this case provided respondent with clear proof that petitioner was still suffering low back, neck and leg problems sustained during the June 14, 1987, injury. Respondent’s insistence upon an intervening accident is unreasonable under the circumstances here, especially in view of the fact that no adverse evidence was presented at arbitration or before the Commission. Therefore, we hold that the imposition of penalties and attorney fees for unreasonably withholding benefits from petitioner is warranted in the present case. The record indicates that petitioner was anxious to return to work for financial reasons, and entered into bankruptcy proceedings over the course of her illness. We find that respondent’s refusal to extend section 8(b) benefits to petitioner is indeed vexatious and unfair under the facts in this case, which demonstrate the continuing nature of petitioner’s injury over an extended period of time.

Accordingly, the judgment of the circuit court of Cook County is reversed. The cause is remanded to the Commission to award appropriate penalties and attorney fees under the Act.

Reversed and remanded with directions.

McCULLOUGH, P.J., and WOODWARD, STOUDER, and LEWIS, JJ., concur.


author: PRESIDING JUSTICE RAKOWSKI

text:
      In re ESTATE OF AILEEN CROAKE, Deceased (American Archives Association, Plaintiff-Appellee, v. William J. Casey III, Defendant-Appellant).
    First District (6th Division)
    No. 1-90-2868
    Opinion filed July 26, 1991.

      Edward V. Hanrahan, of Oak Park, for appellant.
    Marc S. Mayer and Alan Jacobs, both of Chicago, for appellee.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County denying the motion of defendant William J. Casey III for summary judgment and granting the motion of plaintiff American Archives Association for summary judgment. Defendant contests the correctness of that decision.

On February 16, 1990, plaintiff filed its petition requesting the circuit court to spread of record a purported assignment from defendant, assignor and heir of the decedent, Aileen Croake. On June 8, 1989, defendant had signed an agreement and assignment after plaintiff had advised him of a possible inheritance. Defendant agreed to “grant, bargain, sell, convey, transfer, set over and assign unto the said American Archives Association an undivided one-third (f-k) - of all my rights, title and interest in and to said fund of money, property, real or personal, joint bank account, insurance or other assets left by said deceased, and in any claims arising directly or indirectly out of the death of said deceased, or other assets awarded to me therefrom.” The name of the deceased was not disclosed in the document when defendant signed it. On June 16, 1989, plaintiff informed defendant that it had received the “Agreement and Assignment” and that the deceased’s estate was that of Aileen Croake. Plaintiff advised defendant of a lawyer that it had retained in Illinois who could also represent the defendant’s interests in this matter. Defendant was provided with and executed an authorization form on June 19, 1989, which authorized Charles Kogut to provide legal representation for him in the estate of Aileen Croake because defendant believed that he might be entitled to a share of the estate. However, defendant did not execute and return a second document authorizing “American Archives Association to insert in the aforementioned Agreement and Assignment, the full name of the decedent, at such time as full cooperation is secured.”

The sole issue on appeal is whether the circuit court erred in giving plaintiff leave to spread of record in the estate of Aileen Croake its agreement and assignment. Defendant argues that the agreement and assignment is unenforceable because he executed it in blank with decedent’s name missing and therefore the parties never reached an agreement. We do not agree. The general rule is that in the absence of evidence of a contrary intention, where two or more instruments are executed by the same contracting parties in the course of the same transaction, the instruments will be considered together and construed with reference to one another because they are, in the eyes of the law, one contract. (See Tepfer v. Deerfield Savings & Loan Association (1983), 118 Ill. App. 3d 77, 80, 454 N.E.2d 676.) Since the letter that plaintiff received from defendant on June 16, 1989, informing him of the decedent’s identity and the accompanying authorization form which plaintiff signed occurred in the course of the same transaction, these instruments were properly construed as pertaining to one contract. We find that these documents, together with the original agreement and assignment signed by defendant, when construed together, clearly authorized plaintiff and plaintiff’s attorney to represent defendant’s interests in seeking a portion of the estate of Aileen Croake in return for one-third of any assets recovered.

Defendant also argues that since he never signed or returned to plaintiff the document specifically authorizing plaintiff to insert the name of decedent in the agreement and assignment upon which plaintiff relied in this lawsuit, the latter document is fraudulent and, therefore, is not an enforceable contract. Our determination that defendant had agreed to representation by plaintiff in the estate of Aileen Croake disposes of this contention of fraud.

Summary judgment is proper where the parties agree on the relevant facts and the record presents purely questions of law. (See J.M. Beals Enterprises, Inc. v. Industrial Hard Chrome, Ltd. (1990), 194 Ill. App. 3d 744, 748, 551 N.E.2d 340; International Insurance Co. v. Melrose Park National Bank (1986), 145 Ill. App. 3d 286, 288, 495 N.E.2d 1197.) The record indicates that defendant willingly executed an assignment agreement in blank without initiating his own search. After the name of the decedent was disclosed to him, defendant subsequently signed a letter authorizing plaintiff’s attorney to represent him. A court will not set aside a contract merely because the agreement is not a wise one from the standpoint of the party seeking rescission. (Guess v. Brophy (1987), 164 Ill. App. 3d 75, 83, 517 N.E.2d 693; Scott & Fetzer Co. v. Montgomery Ward & Co. (1984), 129 Ill. App. 3d 1011, 1022, 473 N.E.2d 421.) Nor will a court set aside a contract merely because it is unfair. See In re Marriage of Kloster (1984), 127 Ill. App. 3d 583, 587, 469 N.E.2d 381.

To the extent that defendant also suggests this agreement was unconscionable, we note that a contract will be treated as unconscionable when it is so one-sided that only one under delusion would make it and only one unfair and dishonest would accept it. (In re Marriage of Lee (1985), 135 Ill. App. 3d 509, 514, 481 N.E.2d 1045.) An unconscionable contract is one where a party has no meaningful choice and the terms are unreasonably favorable to the other party. (In re Marriage of Riedy (1985), 130 Ill. App. 3d 311, 317, 474 N.E.2d 28.) Although defendant may assert that he had no meaningful choice and the terms are unreasonably favorable to plaintiff, we cannot conclude that defendant was under any delusion when he executed the agreement and assignment. Defendant could have inquired of relatives as to the death of any relative. Defendant was aware of the identity of the decedent when he signed the authorization form for legal representation. Plaintiff has, no doubt, also undergone some detriment in locating defendant. The contract was not so unfavorable to defendant as to justify the court in setting it aside. We also note that a contract containing a similar assignment in Guess did not list the name of the decedent and yet it was found not to be fraudulent. Guess, 164 Ill. App. 3d 75.

Because of our disposition of this appeal, we also reject defendant’s request that we order the circuit court to impose sanctions on plaintiff for plaintiffs alleged fraud.

The circuit court properly granted plaintiffs cross-motion for summary judgment and denied defendant’s motion for summary judgment. Accordingly the judgment is affirmed.

Affirmed.

McNAMARA and LaPORTA, JJ., concur.


author: JUSTICE O’CONNOR PRESIDING JUSTICE MANNING,

text:
    SUSAN YATES, Plaintiff-Appellee, v. BARNABY’S OF NORTHBROOK, a/k/a Barnaby’s Family Inn, a/k/a Bally’s Tomfoolery, Inc., Defendant-Appellant.
    First District (1st Division)
    No. 1-89-2449
    Opinion filed July 29, 1991.
    Condon, Cook & Roche, of Chicago (Francis J. Leyhane III and Mary Rose C. Manczak, of counsel), for appellant.
    Cantwell & Cantwell, of Chicago (Peter A. Cantwell, Stephen F. Boulton, and Peter A. Gaido, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff’s personal injury action was dismissed on April 8, 1988, on defendant’s motion for sanctions when plaintiff failed to comply with discovery. (107 Ill. 2d R. 219(c).) Defendant now appeals from entry of the trial court’s order granting plaintiff’s amended section 2— 1401 petition (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) to vacate the dismissal. Defendant contends that the trial court abused its discretion because plaintiffs petition was unsupported by competent affidavits and failed to demonstrate due diligence.

In February 1987, plaintiff filed a lawsuit against defendant alleging personal injuries when she slipped and fell in defendant’s restaurant. In April 1987, defendant filed interrogatories and a request for production. In October 1987, defendant filed a motion for sanctions because plaintiff had failed to respond to discovery requests. In March 1988, plaintiff’s original attorney was granted leave to withdraw as plaintiff’s counsel and substitute counsel appeared. Defendant’s motion for sanctions was entertained ex parte in April 1988 and the court entered a dismissal with prejudice.

In July 1988, plaintiff filed a petition to vacate the dismissal pursuant to section 2 — 1401 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401.) Defendant then moved to dismiss the petition and the attached affidavits. These motions were continued from time to time, and in March 1989 an order was entered striking plaintiff’s petition and all three supporting affidavits. Plaintiff filed an amended petition on March 31, 1989. In response, defendant again filed a motion to strike the affidavits attached to the amended petition. At the hearing on August 8, 1989, the affidavits attached to plaintiff’s amended petition were stricken, but the trial court reinstated plaintiff’s case despite finding negligence and a lack of diligence on plaintiff’s part in prosecution of her claim. Defendant appeals from entry of that portion of the order reinstating plaintiff’s case.

In prosecution of this appeal, defendant also moves to strike plaintiff’s statement of facts, contending that this portion of plaintiff’s responsive brief is replete with argumentative assertions that are not relevant to the appeal. No response was filed to this motion, and we took this motion with the case. While we agree that plaintiff’s recitation of the facts includes matters not before this court, rather than strike the entire section we deny defendant’s motion but shall ignore those matters factual or otherwise not on appeal here.

Defendant claims that the trial court abused its discretion in allowing plaintiff’s petition to vacate once the supporting affidavits were stricken. Section 2 — 1401 of the Illinois Code of Civil Procedure provides for relief from judgments and “must be supported by affidavit or other appropriate showing as to matters not of record.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401(b).) Our review of plaintiff’s amended petition to vacate indicates that it is based totally on circumstances which occurred outside the record: lack of cooperation between original and substitute counsel for plaintiff, confusion regarding the hearing on defendant’s motion for sanctions and failure of plaintiff’s substitute counsel to locate and review the court file before learning of the dismissal. Although this information is not competent evidence without the supporting affidavits of the individuals involved, letters written by substitute counsel to plaintiff’s original counsel were also attached as exhibits of plaintiff’s petition to vacate. They set forth circumstances sufficient to support plaintiff’s petition to vacate the dismissal without the affidavits. These letters indicate the lack of cooperation between plaintiff’s original and substitute counsel.

Although the trial court specifically found negligence and a lack of diligence on the part of plaintiff’s original and substitute counsel in prosecuting plaintiff’s claim, justice and fairness may require that the judgment be vacated even though the due diligence requirement has not been met. (Resto v. Walker (1978), 66 Ill. App. 3d 733, 740, 383 N.E.2d 1361.) In this case, we agree with the trial court that fairness mandates vacation of the dismissal order.

Affirmed.

CAMPBELL, J., concurs.

PRESIDING JUSTICE MANNING,

dissenting:

I must respectfully dissent. Although I agree that under certain circumstances, the fairness doctrine may be the significant basis for vacating an order pursuant to section 2 — 1401, I do not believe that the factual matrix here presented mandates such a result. Fairness is a fundamental doctrine that often mandates relaxation of rules and principles of law. However, because one is unhappy with a particular result or is otherwise sympathetic to a losing litigant do not operate as improper reasons for granting section 2 — 1401 relief. The grant of such relief is addressed to the trial court’s discretion. The trial court is allowed to correct errors or review the orders in light of new information received, that had such information been available the ruling would have been different. There are very specific requirements, i.e., “[t]he petition [for section 2 — 1401 relief must be supported by affidavit or other appropriate showing as to matters not of record.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401(b).) Here, defendant claims that the trial court abused its discretion in allowing plaintiff’s petition to vacate once the supporting affidavits were stricken. I agree that reinstatement of plaintiff’s claim was improper for the following reasons. Section 2 — 1401 of the Illinois Code of Civil Procedure provides for relief from judgments and “must be supported by affidavit or other appropriate showing as to matters not of record.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401(b).) My review of plaintiff’s amended petition to vacate indicates that it is based totally on circumstances purportedly within the specific knowledge of person(s) involved which occurred outside the pleadings: lack of cooperation between original and substitute counsel for plaintiff, confusion regarding the hearing on defendant’s motion for sanctions, and failure of plaintiff’s substitute counsel to locate and review the court file before learning of the dismissal. I believe this information is incompetent evidence without the supporting affidavits of the individuals involved, thus leaving the petition alone incomplete and insufficient. Letters written by substitute counsel to plaintiff’s original counsel attached as exhibits to plaintiff’s petition to vacate also fail to set forth circumstances to support plaintiff’s petition sufficient to vacate the dismissal without the affidavits. I further note that plaintiff has not cross-appealed the trial court’s order striking the affidavits. Thus, I believe the only alternative is to reverse the trial court’s order granting plaintiff’s amended petition to vacate the dismissal. Once the trial court entered the order striking the affidavits, there were insufficient facts before the trial court in support of the section 2 — 1401 petition.

Moreover, I also note that the trial court specifically found negligence and a lack of diligence on the part of plaintiff’s original and substitute counsel in prosecuting plaintiff’s claim and such a finding warrants denial of plaintiff’s petition to vacate with or without supporting affidavits. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381.) A petitioner must assert specific facts supporting the existence of due diligence in prosecution of his or her claim and in bringing the petition to vacate. A party may not simply assume that his or her attorney is doing everything necessary in conduct of litigation. (Welfelt v. Schultz Transit Co. (1986), 144 Ill. App. 3d 767, 494 N.E.2d 699.) Nor does section 2 — 1401 operate to relieve a litigant of the consequences of an attorney’s neglect in the matter. Kaput v. Hoey (1988), 124 Ill. 2d 370, 530 N.E.2d 230.

Accordingly, I respectfully dissent and would reverse the judgment of the circuit court.