text:
    CITY NATIONAL BANK OF MURPHYSBORO, Plaintiff-Appellee and Cross-Appellant, v. WILLARD DEAN REIMAN, Defendant-Appellant and Cross-Appellee (Frank Stokes et al., Defendants).
    Fifth District
    No. 5—90—0812
    Opinion filed October 19, 1992.

      Donald E. Elmore, of Wolff & Jones, of Murphysboro, for appellant.
    Edward J. Heller, of Reed, Heller & Mansfield, of Murphysboro, for appellee.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Willard Dean Reiman, appeals from a judgment of the circuit court of Jackson County in the amount of $55,862.36 for plaintiff, City National Bank of Murphysboro, entered after a jury verdict for plaintiff in that amount. In this cause defendant raises the following contentions: (1) that the trial court improperly granted summary judgment on defendant’s first affirmative defense, impairment of collateral; (2) that the trial court improperly granted summary judgment on defendant’s third affirmative defense, demand for suit by surety pursuant to section 1 of “An Act to revise the law in relation to sureties” (the Act) (Ill. Rev. Stat. 1989, ch. 132, par. 1); (3) that the trial court improperly sustained objections to tendered testimony, exhibits, and offers of proof; (4) that the jury instructions contained errors and read as a whole failed to sufficiently instruct the jury and/or misled the jury; (5) that the submission of special interrogatories to the jury was error; (6) that the instruction of the jury prior to final argument was error; (7) that the trial court improperly responded to questions from the jury during deliberations; and (8) that the trial court’s acceptance of special interrogatories which were not signed by all jurors was error. We affirm and remand.

This case arises from a loan guaranty agreement dated December 31, 1985, made between defendant, a voluntary guarantor, and plaintiff. The guaranty was to cover a loan made to Frank and Patricia Stokes and their company, Hoke Investment Company, for $133,000. A debtor-creditor relationship had existed for several years prior to 1985 between plaintiff and the Stokeses. In December 1985, the Stokeses had an outstanding indebtedness to plaintiff for $55,000.

The Stokeses operated three businesses, namely Hunker’s Lounge, Frank’s Cleaning Service, and a concession business. In December 1985, the property in which Hunker’s Lounge was housed was owned by Hoke Investment Company. This property consisted of a two-story building with Hunker’s Lounge and three other business fronts on the ground floor and at least three furnished apartments on the second floor. The Stokeses had possession of the entire premises in December 1985 under a purchase agreement entered into in 1981 in which the Stokeses agreed to purchase the stock of Hoke Investment Company for $127,000. In 1985, the Stokeses made arrangements with plaintiff to borrow an additional $78,000 to complete the purchase of Hoke and to consolidate their debts. The loan was evidenced by a $133,000 promissory note from the Stokeses to the bank. As security for the note, plaintiff took a security interest in, among other things, all equipment, fixtures, and furniture owned by Frank and Patricia Stokes and used in the operation of Hunker’s Lounge, the cleaning business, the concession business, and the apartment rentals. A detailed list of the items was compiled and attached to the agreement. Plaintiff also took mortgages on the building housing Hunker’s Lounge (hereinafter business property) and a residence and farm owned by the Stokeses in a rural area near Murphysboro (hereinafter rural property). Plaintiff requested that the Stokeses obtain a guarantor for the debt, which is how defendant became involved.

Defendant was a friend of. the Stokeses and at their request went to plaintiff on or about November 25, 1985. Defendant gave personal financial information to the president of the bank, Robert Streuter. On December 31, 1985, defendant received a call from Frank Stokes requesting that he go to the bank and sign papers. According to defendant, he signed the.guaranty with the understanding that all property owned by the Stokeses was to stand as security for the debt. The security interest was granted by a written agreement, which included an extensive list of furniture, fixtures, equipment, and inventory owned by the Stokeses. As part of the loan transaction, Streuter appraised the business property at $165,000 and the rural property at $25,000. Streuter believed that the value of the equipment in Hunker’s Lounge was around $17,000.

In December 1987, Streuter contacted defendant concerning problems the Stokeses were having meeting their loan obligations. At Streuter’s request, defendant went to the bank where he was informed by Streuter that the Stokeses were in default under their loan obligation. Streuter requested that defendant cure the default. Defendant then told Streuter that if there were problems with the Stokeses’ payments, the bank should proceed against the Stokeses on their security.

After this meeting, defendant sent plaintiff a revocation of guaranty giving notice that his guaranty, signed on December 31, 1985, was revoked effective upon receipt of notice. The revocation was dated and delivered on December 22, 1987. Accompanying the revocation was a request by defendant for “specific information regarding any acceptance of the loan guaranty agreement by City National Bank and any indebtedness or obligation of Hoke Investment Company *** and Frank Stokes and Patricia Stokes *** which City National Bank considers guaranted [sic] by the above referenced loan guaranty agreement.” Defendant specifically asked for the following information: (1) the date of making of any obligations and indebtedness; (2) photocopies of all documentation relating to any indebtedness and obligations; (3) a statement with respect to the balance due as of December 22, 1987, under any indebtedness and obligation; and (4) a statement with respect to any default as to any indebtedness and obligations, and if there was a default, the nature and extent of such default. On December 24, 1987, three payments were applied on the loan account, presumably by the Stokeses. Plaintiff made no reply to defendant’s notice of revocation or defendant’s request for information.

The next correspondence between the parties occurred on July 21, 1988, when plaintiff sent a letter to defendant by certified mail requesting and demanding that he pay past-due amounts due under the note for the months of May, June and July 1988. On July 26, 1988, defendant sent a response to plaintiff reminding plaintiff of his December 1987 revocation and request for- specific information regarding any acceptance of the loan guaranty agreement by plaintiff and any obligations of Hoke Investment Company or the Stokeses. Defendant further stated in his letter that he took plaintiff’s failure to respond as an acknowledgement that no extension of credit had been made under the loan guaranty agreement which he had revoked on December 22, 1987. Defendant also demanded that plaintiff sue the Stokeses immediately, claiming rights under section 1 of the Act (Ill. Rev. Stat. 1987, ch. 132, par. 1).

Plaintiff received a request from the Stokeses to purchase the release of the rural property from the mortgage. Plaintiff apparently had received an offer on the rural property. There was also a prospective purchaser for the business property. Neither sale was made. With no sale on either the mortgaged business property or the rural property, plaintiff filed a complaint for foreclosure on both pieces of property on November 10, 1988. On December 31, 1988, plaintiff received $20,000 from Pauline Leedy, who purchased the rural property. The rural property was subsequently released from the lien created by plaintiff’s mortgage on the property. Plaintiff credited $5,835 of the proceeds of the sale to principal under their indebtedness, $5,506.08 to interest under the indebtedness through December 3, 1988, $6,941.37 to back taxes, and $1,717.55 for outstanding legal fees.

On January 10, 1989, judgment was rendered on the foreclosure and on the note against the Stokeses in the amount of $118,006.60. Plaintiff, as mortgagee, was placed in possession of the mortgaged business property, subject to the pending foreclosure action. Patricia Stokes testified that she turned over the keys to the business property in January 1989. Streuter was not sure when plaintiff received possession of personal property. He further stated that the bank had no policy for making regular inspections or inventory of the personal property covered by the security agreement and that no inventories had been made during the course of the loan. Mrs. Stokes opined that the personal property that was left was not worth carrying off. She testified that some of the property listed on the security agreements did not exist, some was worn out, and some was sold at flea markets. She further testified that there was a fire in 1987 at the rural property. At the time of the fire there was insurance coverage on the residence, but plaintiff was not listed as an additional insured as required by the mortgage. $12,896.13 was paid by the insurance carrier to the Stokeses. The proceeds were not used to rebuild the residence. According to Mrs. Stokes, $6,000 of the insurance proceeds was used to make three regular payments on the note. Plaintiff received no other money from the insurance proceeds.

On June 16, 1989, plaintiff purchased the business property at the foreclosure sale for $80,000. Using the following formula, a deficiency of $42,862.13 remained:

“a) Pursuant to Judgment January 10,1989 $118,006.60
b) Interest on Judgment to date of sale 157 days at $29.10/day 4,568.70
c) Additional Expenses and Attorney Fees 1,124.30
d) Less Funds Applied From Rents - 837.47
TOTAL DUE DATE OF SALE $122,862.13
Amount of Bid 80,000.00
Amount of Deficiency 42,862.13.”

The personal property was sold at a public sale at which time plaintiff purchased the personal property for $1,350.

Defendant was originally joined as a defendant under counts I and II but was later dismissed as an improperly joined party in both counts. Defendant answered count III of the complaint and raised the following three affirmative defenses: (1) that subsequent to the execution of the loan agreement, plaintiff unjustifiably impaired the collateral held for the underlying indebtedness of Hoke Investment Company, Frank Stokes and Patricia Stokes; (2) that defendant delivered a revocation of his guaranty to plaintiff on December 22, 1987, as well as a request for plaintiff to provide defendant with additional information, and that plaintiff in failing to provide the requested information acknowledged that there had been no acceptance of the guaranty or extension of credit thereunder; and (3) that plaintiff did not within a reasonable time and with due diligence commence suit and proceed with collection against Hoke Investment Company, Frank Stokes and Patricia Stokes, and defendant Willard Dean Reiman, and, therefore, defendant has been discharged from any obligation that may have existed under the above-referenced loan guaranty agreement pursuant to section 1 of the Act (Ill. Rev. Stat. 1987, ch. 132, par. 1).

Plaintiff filed a motion attacking defendant’s answer and requested that defendant’s three affirmative defenses be stricken, and defendant filed a response to the motion attacking his answer. The matter was heard by the trial court, which entered an order denying plaintiff’s motion attacking defendant’s answer. Plaintiff subsequently filed its response to defendant’s affirmative defenses. On September 21, 1990, plaintiff filed a motion for summary judgment, to which defendant filed a response. The trial court heard arguments on plaintiff’s motion for summary judgment. The judge who heard these arguments was not the same judge who had heard plaintiff’s motion attacking defendant’s answer and request that defendant’s three affirmative defenses be stricken. On October 2, 1990, the trial court entered an order denying plaintiff’s request for summary judgment with regard to the issue of acceptance and reliance, and granting summary judgment in favor of plaintiff on the issues of impairment of collateral and due diligence, defendant’s first and third affirmative defenses. The case then proceeded to trial on the remaining issues. Ultimately, the jury rendered a verdict for plaintiff in the amount of $55,862.36. Defendant filed a post-trial motion seeking a new trial, which was denied by the trial court. Defendant appeals this denial.

I

The first issue we are asked to consider is whether the trial court’s entry of summary judgment on the affirmative defense of impairment of collateral was error. Defendant argues that impairment of collateral as alleged in his first affirmative defense is still a viable defense under the laws of our State, and that this difference was not obliterated by adoption of the Uniform Commercial Code (the Code) (Ill. Rev. Stat. 1989, ch. 26, par. 1 — 101 et seq.). Defendant further argues that it was error not to allow him to present his defense of impairment of collateral which would have included evidence of plaintiff failing to monitor collateral, failing to insist on insurance coverages which were required, and failing to service the loan in a reasonable manner for a bank by regularly checking on collateral. Finally, defendant argues that the case relied upon by the trial court in making its decision to grant plaintiff’s motion for summary judgment on the impairment of collateral issue, Ishak v. Elgin National Bank (1977), 48 Ill. App. 3d 614, 363 N.E.2d 159, is distinguishable. Plaintiff responds that the trial court’s order granting summary judgment was proper because the loan guaranty agreement is clear and unambiguous, and in it defendant waived diligence in collection and gave consent without notice to making settlements and compromises and taking and releasing collateral. Plaintiff further argues that the right of a guarantor to require a bank to use due diligence to collect from the principal may be waived and, if waived, the contract is conclusive on this issue.

Illinois courts have repeatedly emphasized that the purpose of summary judgment is not to try an issue of fact, but to determine whether a triable question of fact exists. (Hadley v. Witt Unit School District 66 (1984), 123 Ill. App. 3d 19, 23, 462 N.E.2d 877, 881-82.) Summary judgment is a drastic remedy. It must be awarded with caution to avoid preempting a litigant’s right to trial by jury or his right to fully present the factual basis of a case where a material fact is in dispute. (Holbrook v. Peric (1984), 129 Ill. App. 3d 996, 998, 473 N.E.2d 531, 534.) In passing on a summary judgment motion, the trial court is therefore required to construe the pleadings, affidavits, depositions and admissions on file strictly against the moving party and liberally in favor of the opponent. (Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 164, 463 N.E.2d 1339, 1344.) Only if these materials establish that the movant’s entitlement to summary judgment is clear and free from doubt may such a. motion be granted. Fremont Indemnity Co. v. Special Earth Equipment Corp. (1985), 131 Ill. App. 3d 108, 112, 474 N.E.2d 926, 930.

In order to determine whether summary judgment was proper, we must consider the guaranty signed by defendant. Defendant signed a guaranty which was on a preprinted form with a few of the items typed in to allow for differences between such agreements. The guaranty signed by defendant provided in pertinent part:

“LOAN GUARANTY AGREEMENT
FOR "VALUE RECEIVED and to enable Hoke Investment Company, formerly Cochran-Webster, Inc. A Delaware Corporation, having authority to transact business in the State of Illinois and Frank Stokes and Patricia Stokes of Murphysboro, Illinois, hereinafter designated as ‘Debtor,’ to obtain credit, from time to time, of City National Bank of Murphysboro, we hereby request said Bank to extend to said Debtor such credit as said Bank may deem proper, and we hereby jointly and severally guarantee the full and prompt payment to said Bank at maturity, and at all times thereafter, and also at the time hereinafter provided, of any and all indebtedness, liabilities and obligations of every nature and kind of said Debtor to said Bank, and every balance and part thereof, whether now owing or due, or which may hereafter, from time to time, be owing or due, and howsoever heretofore or hereafter created or arising or evidenced, to the extent of
One Hundred Thirty Three Thousand and .00/100 ($133,000.00) Dollars, and we jointly and severally also agree to pay in addition thereto, all costs, expenses and reasonable attorney’s fees at any time paid or incurred in endeavoring to collect said indebtedness, liabilities and obligations, and in and about enforcing this instrument.
All diligence in collection, and all presentment for payment, demand, protest, notice of protest and notice of non-payment, dishonor and default, and of the acceptance of this guaranty, and of any and all extensions of credit hereunder, are hereby expressly waived.
The granting of credit from time to time by said Bank to said Debtor in excess of the amount of this guaranty and without notice to the undersigned, is hereby authorized and shall in no way affect or impair this guaranty. We hereby subordinate any sums now or hereafter due us from said Debtor to the payment of any sums now or hereafter due you.
Authority and consent are hereby expressly given said Bank from time to time, and without any notice to the undersigned, to give and make such extensions, renewals, indulgences, settlements and compromises as it may deem proper with respect to any of the indebtedness, liabilities and obligations covered by this guaranty, including the taking or releasing of security and surrendering of documents.”

The meaning of a guaranty is a matter of law to be determined by the trial court. Guaranty agreements must be strictly construed in favor of the guarantor. (King Korn Stamp Co. v. Guaranty Bank & Trust Co. (1969), 114 Ill. App. 2d 428, 437, 252 N.E.2d 734, 739.) This is especially true where, as here, the guaranty is on a printed form supplied by the party to whom the guaranty runs, and where, as here, the guarantor is receiving no compensation. (Kesner v. Faroll (1932), 268 Ill. App. 531, 540.) However, where the language of a contract is clear and unambiguous, extrinsic facts are not to be considered. Katz v. Diabetes Association (1975), 31 Ill. App. 3d 240, 243, 333 N.E.2d 293, 295.

In the instant case, plaintiff contends that the language in the contract specifically waived the defense of impairment of collateral and diligence in collection. Defendant argues he revoked his guaranty as of December 22, 1987, and at the same time made a specific request for information regarding the acceptance of the loan guaranty agreement by plaintiff and any indebtedness plaintiff considered guaranteed by defendant’s guaranty, which request plaintiff ignored.

A continuing guaranty may be revoked at any time provided due notice is given. (Panknin v. Inspiration Placers, Inc. (1940), 307 Ill. App. 241, 29 N.E.2d 864 (abstract of opinion); Mamerow v. Na tional Lead Co. (1903), 206 Ill. 626, 69 N.E. 504.) When a guaranty is revoked, a guarantor’s liability extends only to transactions occurring pursuant to the guaranty before notice of revocation. (206 Ill. at 635, 69 N.E. at 507.) However, a guarantor’s revocation does not release him from liabilities incurred prior to the revocation. We agree with plaintiff that the language in the contract, quoted above, waived the defenses of impairment of collateral and diligence in collection. We also note that the loan in question was made, and the guarantor’s liability incurred, prior to defendant’s revocation.

Section 3 — 606 of the Code in force at the time, provided, in pertinent part:

“(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder
* * *
(b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.” (Ill. Rev. Stat. 1989, ch. 26, par. 3 — 606(1)(b) (repealed by Pub. Act 87 — 582, §2, January 1, 1992).)

In its order granting summary judgment for plaintiff on the issue of impairment of collateral, the trial court found that the defense based on section 3 — 606(1)(b) of the Code did not lie as a matter of law and cited the case of Ishak v. Elgin National Bank (1977), 48 Ill. App. 3d 614, 363 N.E.2d 159. The trial court specifically stated:

“i. ‘Impairment of collateral’ is created by the Uniform Commercial Code (Illinois Revised Statutes, ch. 26, par. 3 — 606(b). However, the statutory reference relates to negotiable instrument. Ishak v. Elgin National Bank, 48 Ill. App. 3d 614 (1977) Second District stated in a case with a separate guaranty such as is presented in the instant case,
Thus, the plaintiff will not be discharged from any liability arising under the guaranty by the Bank’s failure to file a financing statement with the Secretary of State under Section 9 — 401(i)(c) because the guaranty is not a negotiable instrument and the Uniform Commercial Code is not applicable to it.”

The trial court followed our colleagues on the Second District Appellate Court, who found that the impairment of collateral defense under section 3 — 606(i)(b) is unavailable to a guarantor executing a separate contract from the instrument. (Ishak v. Elgin National Bank (1977), 48 Ill. App. 3d 614, 363 N.E.2d 159.) We agree with Ishak; see also First City Bank, N.A. v. Air Capitol Aircraft Sales, Inc. (10th Cir. 1987), 820 F.2d 1127.

In light of our conclusions concerning waiver by defendant and section 3 — 606, the trial court’s entry of summary judgment in favor of plaintiff on defendant’s first affirmative defense was proper.

II

The next issue we are asked to address is whether the trial court’s entry of summary judgment on the affirmative defense of demand for suit by surety pursuant to section 1 of the Act (Ill. Rev. Stat. 1989, ch. 132, par. 1) was error. Defendant contends that the trial court’s determination as to this issue failed to consider that defendant had revoked his guaranty and any waiver or release contained in the document.

Section 1 of the Act provides:

“§1. When any person is bound, in writing, as surety for another for the payment of money, or the performance of any other contract, apprehends that his principal is likely to become insolvent or to remove himself from the state, without discharging the contract, if a right of action has accrued on the contract, he may, in writing, require the creditor to sue forthwith upon the same; and unless such creditor, within a reasonable time and with due diligence, commences an action thereon, and prosecutes the same to final judgment and proceeds with the enforcement thereof, the surety shall be discharged; but such discharge shall not in any case affect the rights of the creditor against the principal debtor.” (Ill. Rev. Stat. 1989, ch. 132, par. 1.)

This law protecting sureties was first passed in 1874. The statute was enacted to compel diligence by a creditor to make certain that a surety is protected against loss. (Wurster v. Albrecht (1925), 237 Ill. App. 284, 287.) This protection may be waived by the language in a contract of guaranty. (Continental & Commercial National Bank v. Cobb (1st Cir. 1912), 200 F. 511.) In Continental & Commercial National Bank, the following language was found to supersede the statute:

“It is also stipulated that said bank may, at any time, in such manner and upon such terms as it may see fit, extend the time and alter the manner for the payment of said indebtedness or any part thereof of said Albert W. Cobb and Lawrence, without notice to John C. Cobb, he hereby agreeing beforehand that no such alteration of time or terms of credit shall in any manner affect the liability of John C. Cobb hereunder.” (200 F. at 516.)

In finding that the language of the contract took precedence over section 1 of the Act, the Continental & Commercial National Bank court stated:

“Now, the claim to apply the Illinois statute to this agreement, if successful, would cut this part up by the roots; and it must be conceded that the statute yields to the contract as it exists, so that, by virtue of the plain letter of the contract, the statute cannot be used to require the plaintiff to bring a suit at any specific time in direct contravention of the obligation which itself provides that the plaintiff might give the principal obligor any time it saw fit, and might also renew this grace or favor from time to time.” (200 F. at 516.)

In light of the guarantee language quoted above, we conclude that defendant waived this defense. Summary judgment for plaintiff therefore was'proper.

Ill

Defendant raises a number of issues along with his affirmative defenses. He claims the trial court committed error in sustaining plaintiff’s objections to defendant’s tendered testimony and exhibits concerning the value of real estate, the monitoring of the loan in question, plaintiff’s failure to check the maintenance of the secured property, and the failure to require proper maintenance of that property and insurance. Plaintiff’s objections to these elements of testimony Were generally sustained or resulted in severely restricted proof by defendant. Plaintiff argues, and we agree, that in light of the trial court’s proper disposition of defendant’s first and third affirmative defenses, the trial court’s rulings on the relevancy objections by plaintiff were proper.

Defendant also claims error by the trial court on numerous instructions, both in giving instructions tendered by plaintiff and refusing those tendered by defendant. Defendant claims plaintiff’s instructions individually, and read as a whole, misstated the law and gave undue emphasis to the factual matters at issue in plaintiff’s case. After review of the instructions, we determine that the instructions as a whole gave proper guidance to the jury, did not mislead the trier of fact, and accurately stated the law and that those terms defined, such as “guarantor,” were defined in such a manner as to help the jury and not to mislead it.

In particular, plaintiff’s instruction No. 11, construing a written guaranty agreement, reads as follows:

“A written guaranty agreement is a contract. Where there is a written contract in evidence, the intentions of the parties must be determined from its language alone, not from what the parties thought.”

This was a non-Illinois Pattern Jury Instructions (IPI) instruction based on Dee v. Bank of Oakbrook Terrace (1980), 84 Ill. App. 3d 1022, 406 N.E.2d 195. Defendant argues that this non-IPI instruction confused the jury while plaintiff claims it accurately stated the law in the Dee case. The court in Dee summarized the applicable law as follows:

“The meaning of a guaranty is a matter of law, to be determined by the court. Guaranty agreements are to be strictly construed in favor of the guarantor. (King Korn Stamp Co. v. Guaranty Bank & Trust Co. (1969), 114 Ill. App. 2d 428, 437, 252 N.E.2d 734, 739.) This is especially true where, as is the case here, the guaranty is on a printed form supplied by the party to whom the guaranty runs, and where the guarantor is a volunteer receiving no compensation. (Kesner v. Faroll (1932), 268 Ill. App. 531, 540.) The agreement is to be construed to give effect to the intentions of the parties. (Scovill Manufacturing Co. v. Cassidy (1916), 275 Ill. 462, 474, 114 N.E. 181, 186.) But where there is a written contract in evidence, the intentions of the parties must be determined from its language alone, not from what the parties thought. (Saddler v. National Bank of Bloomington (1949), 403 Ill. 218, 228, 85 N.E.2d 733.) Where the language of the contract is clear and unambiguous, extrinsic facts are not to be considered. (Katz v. Diabetes Association (1975), 31 Ill. App. 3d 240, 243, 333 N.E.2d 293.) Only where the guaranty agreement is ambiguous or where there is a question of the parties’ intention may the subsequent acts of the parties be used as evidence of their intentions. Claude Southern Corp. v. Henry’s Drive-In, Inc. (1964), 51 Ill. App. 2d 289, 299-300, 201 N.E.2d 127, 132.” (Dee, 84 Ill. App. 3d at 1024-25, 406 N.E.2d at 197.)

(See also United States v. Crispen (N.D. Ill. 1985), 622 F. Supp. 75.) We conclude that the matters of law determined by the trial court relating to the guaranty agreement in this cause were accurately determined by that court and appropriately reflected in the instructions given to the jury. We also determine that those instructions tendered by defendant, in light of the trial court’s ruling on its affirmative defenses and its construction of the guaranty agreement, were properly refused.

Defendant further claims that the special interrogatories submitted by the trial court also constituted error since the court accepted the return on the special interrogatories without their being signed by the jury. Section 2 — 1108 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1108) indicates that special interrogatories are to be treated as instructions. Given this general directive, we do not conclude the trial court committed reversible error by not requiring jury signatures on the return on the special interrogatories. We also note that the answers to those special interrogatories were consistent with the general verdict rendered by the jury and properly framed issues for the jury, i.e., whether plaintiff relied on the guaranty agreement, what amount was due under the guaranty agreement, and whether defendant executed the guaranty agreement to induce plaintiff to loan the funds, to which an answer in conflict with the general verdict would have controlled the general verdict. '

Defendant further alleges error in the court’s handling of two written questions from the jury. The first question was: “Please define subordinate. A verb,” to which the trial judge returned a note stating: “You have received all the instructions that you are going to receive. I’m sorry that I cannot further define terms. Please retain this note for the file.” In a second note, the jury asked: “We have forms to fill out. RE: Proposition Number one. Made a loan. Three, Plaintiff relied on loan guaranty. Five, amount due. Do we need to fill out forms on Prop, two and four. RE: Inducing the Loan and the Default.” The trial court’s answer on the note was: “You need to fill out one verdict form and three additional forms which pose specific questions. Those are the only forms which need to be completed. Save this note for the file.” The court did not notify the attorneys of these communications and its answers prior to accepting the verdict and discharging the jury. Defendant claims error from this, in effect that he was prejudiced by this denial of an opportunity to comment upon the jury’s questions and help formulate an answer. Plaintiff responds that there was no prejudice shown and that this is required before setting aside a jury verdict, citing People ex rel. Walker v. Pate (1973), 53 Ill. 2d 485, 292 N.E.2d 387.

Upon consideration of this entire record, we agree with plaintiff that there was no prejudice shown as is required by People ex rel. Walker. By this ruling we do not endorse or encourage this method of handling inquiries from juries, since the preferable practice is to attempt to contact the attorneys before responding. (Hunter v. Smallwood (1975), 28 Ill. App. 3d 386, 328 N.E.2d 344; see also R. Hunter, Trial Handbook for Illinois Lawyers (Civil) §§65.14, 65.10 (6th ed. 1989).) If responding to the jurors’ inquiries without contacting the counsel in this case was error, it was harmless error which resulted in no prejudice to either party.

A unique aspect of this case was also a point of error alleged by defendant. In this cause the trial court instructed the jury before counsel’s closing argument, stating:

“Gentlemen, it is my intention to do something somewhat unusual, and that is to instruct the jury before the closing arguments so that they know what the law is during the course of the closing arguments. Then I will allow you to proceed to closing arguments.
* * *
MR. ELMORE [defense counsel]: *** On the record I would like to object to the presenting of the instructions prior to the arguments, because I believe the instructions are the directions to the jury allowing the argument after the reading of instructions and it puts undue emphasis on the arguments, and it takes away the emphasis that is due and owing to the instructions.
THE COURT: The alternative to that is that the jury knows what the law is and when they hear the instructions or hear the arguments they can apply it in a more meaningful fashion. That’s why I decided to do it that way. Your objection is noted, Mr. Elmore.”

Defendant claims that this action by the trial court was in violation of section 2 — 1107 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1107), and plaintiff concedes that the sequence of instruction of this jury was not in accord with section 2 — 1107. Plaintiff also argues, however, that defendant must show prejudice by this action (Allen v. Dorris (1974), 16 Ill. App. 3d 980, 307 N.E.2d 225) and argues that no prejudice has been shown. We agree with the parties that it was in contravention of section 2 — 1107. We also agree with plaintiff that the standard for review of this action is whether the complaining party has been prejudiced. We find no prejudice to defendant in the manner in which the court instructed the jury. Based on the above findings, the trial court’s denial of defendant’s post-trial motion was proper.

Plaintiff also appears before us as cross-appellant requesting this court to remand this cause for a determination of attorney fees for post-trial and appeal services. Considering our disposition of the issues in this cause, we agree that remand would be appropriate so the trial court may determine this issue. American Savings Association v. Conrath (1984), 123 Ill. App. 3d 140, 462 N.E.2d 849.

In light of the disposition of the issues in this cause, as noted above, the judgment of the circuit court of Jackson County is affirmed and the cause is remanded for further proceedings not inconsistent with this opinion.

Affirmed and remanded.

HARRISON and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author:
JUSTICE DOYLE
      JUSTICE GEIGER,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER SIMAC, Defendant (David Sotomayor, Contemnor-Appellant).
    Second District
    No. 2—90—1420
    Opinion filed November 3, 1992.
    Rehearing denied December 4, 1992.

      GEIGER, J., dissenting.
    David Sotomayor, of Sotomayor & Bird, pro se, and Ram sell & Associates, both of Wheaton, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Defense attorney David Sotomayor (contemnor) appeals the judgment of direct criminal contempt entered against him at the conclusion of the trial of defendant, Christopher Simac. On appeal, the contemnor argues that (1) the evidence is insufficient to support a finding of contempt; and (2) the grounds stated in the order of contempt are conclusory and unsupported by the record.

Defendant was charged with driving while his license was revoked and with failing to yield while making a left turn. At his bench trial on December 11, 1990, the court directed all witnesses who were going to testify to come forward and be sworn. The contemnor indicated that defendant would not be testifying. Initially, the State’s only witness was Officer Ronald H. Lamorte of the City of Wood Dale, Illinois. A person later identified as David R Armanentos, a clerical employee of defense counsel’s law firm, sat near the contemnor at counsel table.

Officer Lamorte testified regarding an automobile accident he investigated on March 20, 1990. He sought out the drivers of the vehicles. He identified Armanentos, who was sitting next to the contemnor and dressed in a white shirt with blue stripes, as being the defendant. The court stated, “Identity of the defendant is noted for the record.” Lamorte stated that, at the scene of the accident, the person he had identified as defendant told Lamorte he was the driver of the Pontiac involved in the accident. The driver of the Pontiac admitted that he had attempted to make a left-hand turn and proceed westbound on Irving Park Road and he was struck by a Chevrolet Nova. Lamorte later arrested defendant for driving on a revoked license and for failure to yield while making a left-hand turn. Lamorte testified regarding the certified driving abstract of defendant which was admitted into evidence.

On cross-examination, Lamorte admitted that he had never seen defendant driving and did not witness the accident. The State then rested.

The contemnor’s motion to exclude witnesses was granted, and the officer was asked to wait outside the courtroom. The contemnor then asked to call a witness. When the court asked if this witness had been sworn, the clerk answered, “No.” The witness, who had been sitting next to the contemnor, was David Armanentos. After being sworn, Armanentos stated that he was not the driver of the vehicle in question on March 20, 1990.

Under cross-examination by the prosecutor, Armanentos said that he did not know defendant. He said he worked as a clerical employee in the contemnor’s law firm. Contemnor had brought him in and instructed him to sit at counsel table to see whether he would be identified as the defendant.

Armanentos had been told that defendant looked a little like him. Armanentos did not know anything about the accident. He identified a white male (the defendant) sitting in the back row of the courtroom as being a man he had seen the contemnor speaking to before the trial began. The white male had dark blond hair and was wearing glasses and a white shirt with red stripes. Armanentos was also wearing glasses. His hair was parted down the middle, but the other individual’s hair was combed straight back. Armanentos admitted that he resembled the other individual, who was tall, white, and thin. The court asked Armanentos where he was when the witnesses were sworn. He replied that he was seated at the table.

The contemnor was permitted to state for the record that Armanentos never approached the bench, that he was seated where he was told and was not sworn when the witnesses were called forward. The contemnor argued that there was no fraud perpetrated on the court and the defendant was in open court as required. The State’s witness, Officer Lamerte, identified the person next to the contemnor as the defendant and as the one to whom he spoke on the date of the accident. Because of the misidentification, the contemnor asked for a directed finding in favor of defendant.

When the court asked if the State had any other witnesses, the State requested that defendant, Christopher Simac, be called to the stand. The contemnor objected that the State had no right to call defendant in view of his fifth amendment privilege. Over objection, defendant was called to the stand and was sworn. After stating his name for the record, defendant invoked his right not to answer the State’s questions and was excused. The State then requested that the contemnor be called to testify, and the court denied this request. The State asked that defendant take “his position” next to his attorney and that it be permitted to recall the police officer. The court stated: “[Defendant] can sit any place he wants to in the courtroom. He is here.” The State was permitted to recall the officer over the contemnor’s objection.

When Officer Lamorte retook the stand, he was asked to “take a good look around the courtroom right now” to identify defendant. The officer again identified Armanentos as the one to whom he had spoken at the scene. The court directed a finding of not guilty because of the misidentification.

The court also found that defense counsel should be held in direct criminal contempt of court for placing Armanentos in such a manner as to mislead the State’s Attorney and the officer. The court added this was “purposely done” to “mislead the Court.” The contemnor urged that he did not misrepresent anything to the court and that Armanentos did not approach the bench. The contemnor pointed out that defendant was in open court and the officer had two opportunities to identify him among four individuals present in the courtroom. The order entered on December 11, 1990, stated that the contemnor was held in direct contempt of court “for having a person bearing the likeness” of the defendant “sit at the counsel table with him in the location usually occupied by the [defendant].” A fine of $500 was imposed, but the payment was stayed until the following day, the cause having been continued.

The following day, the trial court made supplemental findings in a written order. The court found that it was the totality of the conduct of counsel in court in connection with this incident that was the basis for the court’s finding of direct criminal contempt for misrepresentation by inference. The following paraphrases the court’s findings:

(1) the person (Armanentos) with the likeness of the defendant, a young white male, was the only person with defense counsel- at the counsel table when defense counsel came to the bench and said, “Here is a jury waiver”;
(2) that person was dressed in jeans and a shirt with no tie; this is not the courtroom attire of an attorney or cocounsel, yet that person sat in the customary location of a defendant throughout the State’s case;
(3) that person was asked by the clerk to be sworn with other witnesses at the start of the trial, and defense counsel stated that that person was not going to testify; the obvious inference of this comment to the court and the clerk was that that person was the defendant because witnesses were excluded except for defendant;
(4) that person was identified as the defendant by the State’s witness (the police officer), and all of the foregoing resulted in the court’s comment that the record would show that defendant had been identified for the record; there was no response by defense counsel to the court’s comment as to its impression and finding based on all that had occurred, and the court was misled as to the identity of defendant;
(5) that person’s only apparent purpose in the courtroom in defendant’s customary location with defense counsel was to raise an inference with the court that he was the defendant and this was done with full knowledge on the part of defense counsel; and
(6) while there was no express verbal misrepresentation, the totality of the conduct by defense counsel amounted to a misrepresentation by inference, and this was the basis of the finding of criminal contempt.

The contemnor’s motion to reconsider, which was filed on the same date, averred that, prior to the commencement of the trial, defendant was seated in the courtroom. When the trial began, a clerical employee from the contemnor’s law firm sat next to him. At no time did the contemnor make any misrepresentation to the court, the State’s Attorney or anyone else that the employee was the defendant, and the employee did not approach the bench, nor did he take any affirmative action to falsely represent his identity. At the time of the trial, seated within the courtroom were two police officers in the jury box; one black individual in the third row bench; one Hispanic individual seated in the second row bench; and two white individuals in the third row bench, one of whom was the defendant. The contemnor argued that his conduct did not embarrass, hinder or obstruct the court in its administration of justice and sought to vacate the court’s order. The motion to reconsider was denied, and this timely appeal followed.

On appeal, the contemnor argues that, absent an affirmative showing of an attempt to deceive the court, it was not contemptuous for counsel to place an individual other than defendant next to him for the purpose of challenging the identification by the State’s witness. He further argues that the court’s findings were not sufficiently specific to support its judgment.

Criminal contempt is described as conduct that is calculated to embarrass, hinder or obstruct the court in its administration of justice or to derogate from the court’s authority or dignity or bring the administration of law into disrepute. (People v. Toomin (1974), 18 Ill. App. 3d 824, 826, citing People v. Miller (1972), 51 Ill. 2d 76.) Direct criminal contempt is contemptuous conduct which occurs in the presence of the judge, making all of the elements of the offense within his own personal knowledge. (People v. L.A.S. (1986), 111 Ill. 2d 539, 543.) Such conduct is summarily punishable because all of the elements are before the court; consequently, the usual safeguards of procedural due process are not required. L.A.S., 111 Ill. 2d at 543.

In a criminal contempt proceeding, guilt must be proved beyond a reasonable doubt. (People v. Gorisek (1988), 176 Ill. App. 3d 266, 268, citing O’Leary v. Allphin (1976), 64 Ill. 2d 500, 512.) On appeal, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Penson (1990), 197 Ill. App. 3d 941, 944.) Direct criminal contempt is predicated on specific misconduct which interferes with the orderly administration of justice, and the order imposing punishment must state, or the record must show, the specific acts upon which it is based and such an order must be sustained upon the ground on which it was imposed or not at all. Miller, 51 Ill. 2d at 78.

The conduct of the contemnor must be volitional, such that it can be said to require a wilful or knowing state of mind. Intent or at least knowledge of the nature of one’s act is a necessary element of contempt because contempt requires some form of constructive or actual knowledge of what conduct is forbidden, and the requisite intent in a direct contempt can be inferred from the conduct itself. (People v. Sheahan (1986), 150 Ill. App. 3d 572, 574.) It has been said, for example, that contemptuous conduct can be inferred from acts which common sense dictates will disturb or disrupt the court’s proceedings. See In re Watts (1978), 66 Ill. App. 3d 971, 975.

When attorneys are charged with contempt during the course of making honest efforts to advance their clients’ interests, a certain latitude is allowed regarding what is permissible conduct. Because an independent judiciary and a vigorous, independent bar are both indispensable parts of our system of justice, a stand taken by counsel in good faith and in the interest of his client should not ordinarily serve as a basis for a charge of contempt. (People v. Kuelper (1977), 46 Ill. App. 3d 420, 423, citing In re Criminal Contempt of McConnell (1962), 370 U.S. 230, 8 L. Ed. 2d 434, 82 S. Ct. 1288.) However, good-faith, vigorous advocacy cannot immunize all conduct undertaken by an attorney in behalf of a client (see United States v. Thoreen (9th Cir. 1981), 653 F.2d 1332, 1339, 1342), and the latitude given attorneys as vigorous advocates does not extend to deceiving or manipulating the court (see People v. Sleezer (1956), 10 Ill. 2d 47, 54).

Based on its facts, this case is one of first impression in this court. Neither the contemnor nor the State has submitted any cases directly determining whether it is contemptuous conduct for defense counsel to substitute another person in defendant’s customary place at the counsel table with the intent to test an identification without the knowledge or permission of the court. Our research, however, has disclosed two extrajurisdictional cases, both of which have held this conduct to be contemptuous. See Thoreen, 653 F.2d 1332; Miskovsky v. State ex rel. Jones (Okla. Crim. App. 1978), 586 P.2d 1104.

In Thoreen, an attorney representing a client accused of violating a preliminary injunction against salmon fishing apparently hoped that the government agent who had cited the client could not identify him. Counsel decided to test the witness’ identification by placing at the counsel table another person who resembled the client. The substitute was dressed in outdoor clothing while the defendant was dressed in a business suit and sat behind the rail in a row normally reserved for the press. Defense counsel neither notified the government nor asked the court’s permission to arrange this substitution. On defense counsel’s motion, the court ordered all witnesses excluded from the courtroom. During the trial, counsel did not correct any mistaken impression of the court when it expressly referred to the substitute as the defendant for the record. Two government witnesses misidentified the substitute as the defendant. Following the government’s case, defense counsel called the substitute as a witness and disclosed the substitution. The State was allowed to reopen its case, and defendant was identified.

On appeal, the order finding defense counsel in direct contempt was affirmed. The Thoreen court reasoned that defense counsel must be scrupulously candid and truthful in his representations of any matter before the court and the conduct was unethical under the rules of professional conduct then in effect in Washington State. Counsel’s substitution amounted to misbehavior that obstructed justice and was inappropriate because it was done without consent, violated court custom to allow only counsel, parties, and others having the court’s permission to sit forward of the rail, and was unprofessional conduct violative of the State’s disciplinary provisions. In addition, counsel violated the court’s order to exclude witnesses when he knew from the outset that the substitute would testify after the anticipated misidentification. The deception delayed the proceedings and impeded the court’s ability to ascertain the truth.

In support of its reasoning, the Thoreen court referred to an early opinion of the American Bar Association committee on professional ethics that stated that the substitution of a person for the defendant in a criminal case without a court’s knowledge is considered to be unethical behavior. (Thoreen, 653 F.2d at 1340.) The court rejected the good-faith defense and concluded that defense counsel had the requisite intent because he knew or reasonably should have known that he was exceeding the outermost limits of his proper role and was hindering rather than facilitating the search for truth. Finally, the court pointed out that there were acceptable alternative methods of testing the credibility of witnesses such as seeking the court’s permission to seat two or more persons at the counsel table without identifying the defendant, having no one at counsel table, or holding an in-court lineup. Thoreen, 653 F.2d at 1342, 1342 n.7.

Under similar circumstances, defense counsel in Miskovsky substituted another person at counsel table and had his client sit in the gallery. The reviewing court found that counsel’s conduct consisted of knowingly implementing a plan of deception which would affect the witnesses, the District Attorney, and the court. The court emphasized that counsel’s conduct was designed to create a mistaken assumption, that his actions indicated a disrespectful attitude for the judicial process in resorting to deception to protect his client’s interests and constituted conduct directed against the dignity and authority of the court which was obstructive of the administration of justice. Miskovsky, 586 P.2d at 1108.

The Miskovsky court emphasized that the contemptuous conduct was not merely the substitution of another person for the defendant, a tactic that may have been commonly used in Oklahoma County. The gravamen of the offense was that the substitution occurred without the knowledge of the court. The court also pointed out that the State’s professional code of responsibility prohibited lawyers from engaging in any conduct involving dishonesty, fraud, deceit or misrepresentation or from misleading judges by any artifice or false statements of facts or law. The court concluded that these ethical standards justified a court’s reliance upon defense counsel to refrain from this type of misrepresentation. (Miskovsky, 586 P.2d at 1108-09.) We are persuaded by the reasoning in Thoreen and Miskovsky and find their rationale applicable to the case at bar.

Similarly, Illinois law imposes a duty upon attorneys, as officers of the court, to make full and frank disclosure of all matters and facts which the court ought to know. (People v. Buckley (1987), 164 Ill. App. 3d 407, 413 (attorney guilty of civil contempt for refusing to advise court regarding the calculation of the running of the term under speedy-trial requirements), citing People v. Sleezer (1955), 8 Ill. App. 2d 12, 22, aff'd as modified (1956), 10 Ill. 2d 47 (attorney guilty of criminal contempt for obstructing the administration of justice when he falsely created the impression that the defendant was without counsel and thereby delayed the proceedings).) An attorney’s zeal to serve his client should never be carried to the extent of causing him to seek to accomplish his purpose by a disregard of the authority of the court or by seeking to secure from a court an order or judgment without a full and frank disclosure of all matters and facts which the court ought to know. People ex rel. Fahey v. Burr (1925), 316 Ill. 166, 182 (attorneys guilty of contempt of court when they intentionally sought to embarrass the court and obstruct the administration of justice by concealing facts regarding former adoption proceedings in filing second petition for writ of habeas corpus).

As in other jurisdictions, the Illinois Rules of Professional Conduct prohibit attorneys from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentations, engaging in conduct prejudicial to the administration of justice (134 Ill. 2d Rules 8.4(a)(4), (a)(5)), misrepresenting any material facts or law to a tribunal or participating in the creation or preservation of evidence when the lawyer knows or reasonably should know the evidence is false (134 Ill. 2d Rules 3.3(a)(1), (a)(5)). While a violation of the rules of ethical conduct does not necessarily constitute criminal contempt of court (see People v. Wolf (1987), 162 Ill. App. 3d 57, 60), we believe that, in this case, defense counsel knowingly exceeded the outermost limits of acceptable conduct before a tribunal when he engaged in this deceptive experiment without the court’s permission.

Our trial courts have the duty and the power to control the course and conduct of trials in such a manner as will inspire respect for the law and the administration of justice, to ensure orderly, expeditious and fair trial proceedings, and to protect its processes from prejudicial influences. Kemner v. Norfolk & Western Ry. Co. (1985), 133 Ill. App. 3d 597, 602, rev’d on other grounds (1986), 112 Ill. 2d 223; People v. Ray (1984), 126 Ill. App. 3d 656, 664; People ex rel. Woodward v. Oliver (1975), 25 Ill. App. 3d 66, 76.

There are a variety of practical considerations which militate against permitting the trial court to be deceived, even temporarily, concerning the identity of persons at counsel table. An accused person has a general right to be personally present during all stages of his trial. (People v. Bean (1990), 137 Ill. 2d 65, 80.) It follows that it is the responsibility of the trial court to ensure the defendant’s presence and to avoid unnecessarily proceeding in the defendant’s absence. In discharging that responsibility, the court, in our view, should be permitted to assume the presence of the defendant at the counsel table under the circumstances present here in the absence of a contrary explanation by defense counsel. It should be unnecessary for the court to be burdened in every case by the need for specific inquiry to establish the identity of someone counsel has placed at the table.

Further, as occurred in this case, it is customary for the judge to confirm for the record that a witness has made an in-court identification of a defendant. The judge, therefore, before making his statement, must be aware of the defendant’s identity and location in the courtroom in order to determine whether the witness has correctly pointed toward the defendant. In the present case, the trial court was lured by counsel’s misconduct into making an incorrect confirmation of identification.

Similarly, unless the court is aware of the defendant’s location at the time of a witness’ in-court identification, it may become impossible for the court to take notice of whether the defendant was even present in the room or was situated in such a location and position to be visible to the witness at the critical time of identification. In such a circumstance, it might become necessary for the court to delay the progress of the trial to hear testimony for the purpose of establishing these facts.

Here, counsel’s experiment was conducted without the permission or knowledge of the court. The substitute’s testimony established that the substitution was deliberate and was calculated to mislead the State and the court. The contemnor’s conduct derogated from the court’s authority to control its process, resulted in a delay in the proceedings, and embarrassed and otherwise hindered the court in the administration of justice.

Zealous advocacy within the bounds of the law and acceptable conduct is to be encouraged. However, for the foregoing reasons, we cannot condone the type of deception employed by the contemner. (See Buckley, 164 Ill. App. 3d at 414.) We believe such a practice shows a disrespect for the authority and dignity of our courts.

The contemnor’s second argument, that the findings of the court were not sufficiently specific, is without merit in view of the detailed statement of facts we have recited here from the record and the detailed supplemental findings of the court. (See Miller, 51 Ill. 2d at 78.) Any rational trier of fact could have found the elements of the offense based on the facts in the record and in the trial court’s orders.

Although we conclude that the contemnor’s conduct in deceiving the court amounted to direct criminal contempt of court, we elect to modify the penalty under Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)). In view of the fact that this is the first case in Illinois that deals with the conduct described herein, it is our opinion that the fine of $500 imposed by the circuit court should be reduced to $100. We affirm the judgment of the circuit court as to the finding of direct criminal contempt, but we reduce the fine to $100 and enter judgment to that effect.

Affirmed as modified.

WOODWARD, J., concurs.

JUSTICE GEIGER,

dissenting:

I agree with the majority that the preferred procedure for defense counsel to have followed in this case would have been to advise the court, in advance of the trial, that he would not have the defendant seated at the counsel table. Nevertheless, despite counsel’s belated revelation to the court, I would not find that the evidence supported a conviction of direct criminal contempt. Thus, I must respectfully dissent.

In this case, the record does not contain any court rule which required the defendant to be seated at the counsel table. Likewise, the record does not indicate any direct misrepresentation or misidentification by the defense attorney, either of the defendant or of the other person seated at the counsel table.

As the majority observe, to establish direct criminal contempt requires proof of conduct in the presence of a judge that is calculated either to embarrass, hinder, or obstruct the court in its administration of justice or to derogate from the court’s authority or dignity or to bring the administration of law into disrepute. (People v. L.A.S. (1986), 111 Ill. 2d 539, 543; People v. Miller (1972), 51 Ill. 2d 76, 78; People v. Toomin (1974), 18 Ill. App. 3d 824, 826.) I do not condone counsel’s failure to give advance notice to the court. Nevertheless, even when construing the evidence in this case to favor the prosecution, I do not find evidence from which a rational trier of fact could find beyond a reasonable doubt (see People v. Penson (1990), 197 Ill. App. 3d 941, 944) that, as judged from the court’s immediate knowledge, counsel’s intent was to embarrass, hinder, derogate, or obstruct the court in its administration of justice. See L.A.S., 111 Ill. 2d at 543.

The courts of this State clearly attach significance to courtroom identification of a criminal defendant. They frequently, for example, cite to an in-court identification as support for the existence of sufficient evidence to convict. (See People v. Ocasio (1990), 205 Ill. App. 3d 157, 163; People v. Zambrano (1989), 188 Ill. App. 3d 432, 440.) In an atmosphere where a criminal defendant may be convicted with reference to the strength of his identification in court, courtroom identifications must likewise include protections against taint.

Our supreme court recently has recognized the importance of an in-court identification. There, the court found no error in the trial court’s decision not to hold a hearing on suppression of an in-court identification because the identification’s reliability was supported by an unchallenged, independent basis. (People v. Morgan (1991), 142 Ill. 2d 410, 459.) Given the influence of in-court identifications, and the possibility that an arguably otherwise unreliable identification will be tainted by the defendant’s placement at the counsel table, defense counsel’s good-faith representation of his client should include freedom to assure that the in-court identification of a defendant is, in fact, based on the recognition of the defendant by the witness and is not merely because the witness knows where the defendant will be placed in the courtroom.

Here, with his prompt post-identification revelation to the court, counsel revealed his respect for the court’s role as administrator of the law and negated any suggestion of an intent to embarrass, hinder, or obstruct. I do not find that the record supports a finding other than that counsel’s action here was one taken in the interest of his client, in good faith, and with respect for the court. (See People v. Kuelper (1977), 46 Ill. App. 3d 420, 423.) Consequently, I would reverse the conviction.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD C. SCHOENNEMAN, Defendant-Appellant.
    Second District
    No. 2—91—0129
    Opinion filed November 6, 1992.

      Dominick P. Dolci, of Dolci & Lauer, of Oakbrook Terrace, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Anthony J. Peracia, of Chicago (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Following a bench trial, defendant, Richard Schoenneman, was found guilty of doing business as a used car dealer without a license (Ill. Rev. Stat. 1987, ch. 95½, par. 5—102) and failure to keep records as required by the Illinois Secretary of State while operating as a used vehicle dealer (Ill. Rev. Stat. 1987, ch. 95½, par. 5—404(a)). Defendant appeals, contending the evidence was insufficient to prove his guilt beyond a reasonable doubt. We affirm.

Joe Rubin testified that he was president of Auburn Auto & Truck Parts at 1250 Ellis in Bensenville. Auburn Auto is an auto salvage business which purchases damaged vehicles, dismantles them, and sells the parts to body shops. In April or May 1989, Rubin leased some property at 1130 Irving Park Road in Bensenville to defendant. Defendant represented his company as “M&R Auto Brokers” (M&R) of Hammond, Indiana. Thereafter, Rubin did not deal personally with defendant for the purchase of any vehicles. At trial, Rubin identified Auburn Auto’s “police record book” reflecting certain purchases from M&R. Rubin identified entries dated December 12, 1989, and January 24, 1990, reflecting 17 vehicles purchased by Auburn Auto from M&R. Rubin admitted that there was nothing in the records themselves to determine whether the purchases were made in Illinois or in Indiana. However, Rubin stated M&R would deliver the cars to Auburn Auto and Auburn Auto would pay and receive titles for each vehicle at Auburn Auto’s office.

Leon Voorhees, manager of Auburn Auto, was responsible for buying vehicles and selling auto parts. He had known defendant for two years. Voorhees dealt with defendant mainly by telephone, but defendant would also visit Auburn Auto’s office at various times. Defendant would generally call Voorhees and describe vehicles defendant thought Voorhees might purchase, although defendant would never divulge where he was calling from during these conversations. When Voorhees would indicate a certain vehicle he was interested in buying, defendant or his employee, Angelo Morales, would usually bring that vehicle to Voorhees. Voorhees would buy it on behalf of Auburn Auto, and defendant or Morales would give the title to Voorhees at that time. On the average, Voorhees purchased 10 to 12 cars per month from M&R in this manner. Voorhees identified defendant’s signature on title histories of eight vehicles sold by M&R to Auburn Auto on December 12, 1989, and on title histories of 12 additional vehicles purchased by Auburn Auto from M&R early in 1990.

Angelo Morales testified that he worked as an auto repairman for defendant at M&R’s Bensenville location. In 1989 and early in 1990, defendant had approximately 20 cars at the Bensenville location. Morales identified his signature on title histories reflecting M&R sales of six vehicles to Auburn Auto in January and February 1990 and testified that he delivered these cars and titles to Auburn Auto.

Lawrence Johnson, a police officer for the Illinois Secretary of State, testified that every licensed car dealer is required to keep a police ledger book, showing the year, make, model, serial number and other data for each vehicle available for sale. In July 1989, Johnson saw 20 to 30 cars during an inspection of M&R’s Bensenville lot, some with “for sale” signs on them. In October 1989, Johnson spoke to defendant at the lot and told defendant he could not sell cars without a license. Defendant replied that he had an Indiana license. When Johnson stated that was insufficient, defendant excused himself, stating he was going to an auction. During another inspection in November 1989, defendant refused to let Johnson inspect a folder which defendant claimed contained titles to the cars on his Bensenville lot. Defendant admitted he did not have a police ledger book and also told Johnson that he was buying and selling cars in Illinois. At trial, Johnson identified 36 title histories of vehicle sales by M&R to Auburn Auto, which he had examined while inspecting Auburn Auto’s police ledger book.

Various certified documents from the Illinois Secretary of State were admitted into evidence. These documents stated there were no records of a dealer license for either defendant or M&R Auto Brokers in Illinois for 1988,1989, or 1990.

Defendant testified that he did not have an Illinois license to sell or repair cars, but rather defendant had a “wholesale” license in Indiana. Defendant admitted leasing the lot in Bensenville, storing vehicles there, and selling them to other dealers. For most sales, Auburn Auto would send someone to defendant’s Indiana lot to pick up the cars. Other times, Auburn Auto’s representative would travel to various auction sites to pick up cars purchased from M&R.

Although defendant stated he sold cars to Auburn Auto by telephone from M&R’s office in Hammond, Indiana, defendant also stated he called Leon Voorhees from “some” auctions in Illinois at various times. In 1989, defendant bought some cars at an auction in Alsip, Illinois, and sold some of these cars to Auburn Auto. All checks from Auburn Auto were picked up at Auburn Auto’s office by defendant or Morales.

The trial court found defendant guilty of “not having a license and doing business as a used car dealer, dealing with five or more vehicles” (Ill. Rev. Stat. 1987, ch. 95½, par. 5—102) and failure to keep records while operating as a used vehicle dealer (Ill. Rev. Stat. 1987, ch. 95½, par. 5—404(a)). Defendant was sentenced to one year’s probation for the first offense and 24 months’ probation for the second offense and, for each offense, was ordered to pay a $100 fine and court costs.

Defendant filed a “motion for new trial and arrest of judgment” contending, inter alia, the court was without jurisdiction since there was no evidence that the offenses were committed within the State of Illinois. The motion further asserted the State failed to prove five particular acts of selling or dealing used vehicles within the State of Illinois. The trial court denied defendant’s motion and this appeal followed.

When a defendant challenges the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty of the crime charged. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) The fact finder’s role as the weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. (People v. Young (1989), 128 Ill. 2d 1, 49.) The trier of fact is in the best position to judge the credibility of the witnesses, to determine the weight to be accorded their testimony, and to resolve any conflicts in that testimony. (People v. Collins (1985), 106 Ill. 2d 237, 261-62.) On review, the trial court’s judgment will not be set aside unless the proof is so unsatisfactory, improbable or implausible as to justify a reasonable doubt of the defendant’s guilt. People v. Slim (1989), 127 Ill. 2d 302, 307.

Defendant admits that he did not keep any records as required by the Illinois Secretary of State while operating as a used vehicle dealer under section 5—404(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 5—404(a)). Rather, defendant contends that the State failed to provide sufficient evidence that defendant was an “unlicensed used car dealer” under section 5—102 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 5—102), because the State failed to prove that defendant engaged in five or more sales involving used vehicles within the State of Illinois. According to defendant, because he did not engage in five or more sales within the State of Illinois, he was not a “used car dealer” and therefore was not required to keep business records.

The law requiring used vehicle dealers to be licensed states:

“No person, other than a licensed new vehicle dealer, shall engage in the business of selling or dealing in, on consignment or otherwise, 5 or more used vehicles of any make during the year *** or act as an intermediary, agent or broker for any licensed dealer or vehicle purchaser (other than as a salesperson) or represent or advertise that he is so engaged or intends to so engage in such business unless licensed to do so by the Secretary of State under the provisions of this Section.” Ill. Rev. Stat. 1987, ch. 95½, par. 5—102(a).

Defendant contends that the evidence did not show that defendant engaged in the business of selling or dealing in five or more used vehicles. Defendant relies on section 2—106 of the Uniform Commercial Code—Sales (Code) (Ill. Rev. Stat. 1989, ch. 26, par. 2—106), which defines a sale as consisting of “the passing of title from the seller to the buyer for a price.” Defendant next points to section 2—401(1) of the Code (Ill. Rev. Stat. 1989, ch. 26, par. 2—401(1)) which states, in pertinent part: “Subject to these provisions and to the provisions of the Article on Secured Transactions ***, title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties.” Further, defendant relies on section 2—301 of the Code (Ill. Rev. Stat. 1989, ch. 26, par. 2—301), stating that the obligation of the seller is to transfer and deliver and that of the buyer is to accept and pay in accordance with the contract.

With certain exceptions, the laws which define our State’s criminal jurisdiction limit such jurisdiction to offenses which are committed within the State:

“§1—5. State criminal jurisdiction, (a) A person is subject to prosecution in this State for an offense which he commits, while either within or without the State, by his own conduct or that of another for which he is legally accountable, if:
(1) The offense is committed either wholly or partly within the State; or
* * *
(b) An offense is committed partly within this State, if either the conduct which is an element of the offense, or the result which is such an element, occurs within the State.” Ill. Rev. Stat. 1991, ch. 38, pars. 1—5(a), (b).

Defendant contends that a sale does not occur “partly” within the State of Illinois. Rather, according to defendant, the sale occurs at a specific time. Defendant relies on the telephone conversations between defendant and Leon Voorhees concerning the sales of vehicles to Auburn Auto. Defendant specifically contends that he sold vehicles to Auburn Auto by telephone from his office in Indiana and asserts that title to the vehicles passed from defendant to Voorhees (Auburn Auto) when those parties agreed to the purchase and sale of the vehicles during these telephone conversations. Consequently, defendant contends there was insufficient proof that five or more of these telephone “deals” occurred within the State of Illinois.

We disagree. Although the intent of the parties governs the passing of title under both the Illinois Vehicle Code and the Uniform Commercial Code, an explicit agreement regarding the passing of title is required under section 2—401 of the Code (Ill. Rev. Stat. 1987, ch. 26, par. 2—401). We believe the evidence does not support defendant’s contention that the parties explicitly agreed to transfer title, and therefore consummate the sales of the vehicles involved, over the telephone.

Joe Rubin testified that Auburn Auto would not purchase any cars without receiving title. Rubin further stated that he saw defendant or defendant’s agent, Morales, deliver cars to Auburn Auto and that Auburn Auto would pay M&R by check upon receipt of the titles at Auburn Auto’s office. Rubin’s intention was to buy cars that were actually brought to his company’s location, not to buy them sight unseen over the telephone. Moreover, Leon Voorhees stated that either defendant or Morales would bring vehicles to Auburn Auto and at that point Voorhees would purchase vehicles on behalf of Auburn Auto. When such purchases were made, Morales would deliver title to Voorhees. Also, defendant’s own employee, Morales, testified that he delivered at least six cars and their titles to Auburn Auto.

Additionally, Officer Johnson testified that in December 1989 and January 1990 he saw at least 20 vehicles on M&R’s Bensenville lot and that a number of them had “for sale” signs on them. Moreover, defendant admitted to Johnson that he was selling used cars in Illinois.

Although defendant contends on appeal that all of the telephone calls were made from his office in Indiana, defendant testified that he called Voorhees from auctions in Illinois on several occasions and sold Auburn Auto “some” vehicles resulting from those telephone conversations. The remaining witnesses testified that defendant sold at least 6, and as many as 36, vehicles to Auburn Auto, and that such sales occurred in Illinois. The trial court was in the best position to judge the credibility of the witnesses, determine the weight of their testimony, and resolve any conflicting testimony. (People v. Collins (1985), 106 Ill. 2d 237, 261-62.) Faced with this evidence, the trial court rationally concluded that defendant conducted five or more sales within the State of Illinois. Consequently, defendant was bound under Illinois law to obtain a license and keep appropriate business records of all his Illinois transactions.

For these reasons, the judgment of the circuit court of Du Page County finding defendant guilty of operating as a used car dealer without a license and of failing to keep records while operating as a used car dealer is affirmed.

Affirmed.

INGLIS, P.J., and DOYLE, J., concur.