author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. LOUIS FRENCH, Petitioner-Appellant.
    Second District
    No. 2 — 89—0523
    Opinion filed March 20, 1991.

      G. Joseph Weller and Beth Katz, both of State Appellate Defender’s Office, of Elgin, and Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Louis French, appeals from an order of the circuit court of DuPage County dismissing his petition for post-conviction relief. On appeal, defendant contends that: (1) the trial court erred by denying him an evidentiary hearing on various constitutional claims allegedly raised in the petition; (2) the court should have appointed an attorney outside the public defender’s office to represent him; and (3) reversal is required because of his attorney’s failure to comply with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)) by making necessary amendments to his pro se petition. We affirm.

In May 1987, defendant filed a pro se petition for post-conviction relief from a 1965 armed robbery conviction and a 1978 armed robbery conviction. Defendant received a sentence of 5 to 15 years of imprisonment on the 1965 conviction. That conviction was affirmed by this court in People v. French (1966), 75 Ill. App. 2d 453. Defendant filed his initial petition for post-conviction relief from this conviction in 1968. That petition was dismissed by the circuit court of Du Page County, and the dismissal was affirmed by our supreme court in People v. French (1970), 46 Ill. 2d 104.

Defendant was released from prison in 1973. He was then arrested in 1977, tried by the circuit court of DuPage County, and again convicted of armed robbery. The trial judge sentenced him to a term of between 50 and 100, years in prison. This court affirmed defendant’s conviction in People v. Larson (1980), 82 Ill. App. 3d 129. (Larson was a codefendant.) Defendant’s 1987 petition is his initial petition for post-conviction relief from the 1978 conviction.

The 62-page pro se petition filed by defendant in 1987 is barely coherent at many stages and sets forth far-flung, unsubstantiated allegations of a conspiracy allegedly directed against him by numerous present and former Du Page County judges and prosecutors and others, including a former governor of this State. The petition also alleges that the State failed to reveal prior to trial that one of its witnesses, Alberta Meyer, defendant’s ex-wife, had been convicted of forgery and deceptive practice involving bad checks on two separate occasions. According to the petition, the first such conviction was in Du Page County in 1965; the second was in Cook County in 1968 or 1969, and the prosecuting attorney and trial judge were aware of these convictions but failed to reveal them to defendant.

The petition states that the prosecuting attorney and trial judge were also aware that Meyer held a State liquor license illegally and the prosecution and an investigator threatened her with imprisonment if she did not testify against defendant. Defendant also alleged that his sentence of between 50 and 100 years for the 1978 conviction was excessive.

With regard to the 1965 conviction, defendant alleged that his appellate counsel was operating under a conflict of interest. This was because, prior to defendant’s 1965 trial, the Du Page County State’s Attorney was held in contempt of court for failing to turn over a certain transcript of grand jury testimony to defendant (see People v. French (1965), 61 Ill. App. 2d 439). Defendant asserted that the same law firm that represented him in his appeal from the 1965 conviction also represented the State’s Attorney in his successful appeal from the contempt order, thus producing the conflict. As we shall see, this contention is not factually correct and is based upon a misreading of the attorney listings in the case reporter.

The circuit court originally appointed Eugene Wojcik, an assistant public defender, to represent defendant in the post-conviction proceedings. Numerous status hearings were held regarding the petition, largely because of defendant’s continuing requests for appointment of counsel from outside the public defender’s office. On August 11, 1988, the court held a hearing on defendant’s contention that outside counsel should be appointed because the current public defender, Peter Dockery, had been an assistant State’s Attorney at the time of defendant’s 1978 trial. Dockery testified that he was not involved in any way in the 1978 prosecution of defendant. The court refused to appoint outside counsel.

At a September 8, 1988, hearing, Wojcik informed the trial court that defendant did not want Wojcik to continue representing him. Peter Dockery appeared at a September 29, 1988, hearing and stated that defendant did not -wish to have any attorney from the public defender’s office representing him because of the long-standing government conspiracy directed against him. The trial court again refused to appoint outside counsel for defendant. Defendant then stated that he would proceed pro se with standby assistance from the public defender’s office.

On December 14, 1988, Assistant Public Defender Scott Conger appeared at a hearing in Wojcik’s place because Wojcik was on vacation. Conger advised the court that defendant had agreed to have Wojcik represent him. On February 8, 1989, however, Wojcik advised the court that defendant did not wish to be represented by him or any other assistant public defender. Wojcik again asked the court to appoint outside counsel for defendant, but the court refused to do so. Instead, the court directed the public defender to appoint an attorney from the office other than Wojcik or Dockery to represent defendant. Scott Conger was chosen.

Conger appeared at a hearing on February 17, 1989, and told the court defendant did not wish to be represented by him or any other assistant public defender. Conger and defendant both told the court the same thing at a March 13, 1989, hearing. Conger stated that he had told defendant during a meeting at the penitentiary that he would review the transcripts and appellate record from the 1978 conviction to determine what amendments should be made to the post-conviction petition, but he would not delve into the 1965 conviction unless he was convinced a connection existed between it and the 1978 conviction. According to Conger, defendant then stated he did not wish to have Conger represent him, and he terminated the prison meeting.

The next hearing was held on March 20, 1989. Defendant asked for the appointment of outside counsel, and the trial court again rejected this request. Defendant also again stated that he did not wish to have Conger represent him. The trial court granted defendant leave to represent himself with standby assistance from the public defender’s office. Defendant stated, however, that he did not desire such assistance, and he represented himself from that point on.

The State subsequently filed a motion to dismiss the post-conviction petition. The trial court granted the motion on May 25, 1989. Defendant now appeals.

Defendant argues that he should have received an evidentiary hearing on several constitutional claims allegedly raised in his petition. A post-conviction petitioner does not have an automatic right to an evidentiary hearing. (People v. Del Vecchio (1989), 129 Ill. 2d 265, 279.) The petitioner will only be granted an evidentiary hearing if he or she makes a substantial showing of a violation of a constitutional right and the allegations are supported by the record or by affidavits accompanying the petition. Del Vecchio, 129 Ill. 2d at 279.

According to defendant, one of his viable constitutional claims is that the State violated a discovery order prior to his 1978 trial by failing to disclose prior convictions of Alberta Meyer, his ex-wife, who testified against him. Defendant asserts that these convictions could have been used at trial to impeach Meyer’s credibility. A prior conviction may be used to impeach a witness if it involved dishonesty or was punishable by imprisonment in excess of one year and the conviction or release from imprisonment occurred in the preceding 10 years. (People v. Powell (1985), 139 Ill. App. 3d 701, 707.) Defendant’s petition contained no affidavits or documents supporting the allegation in his petition that Meyer had twice been convicted of deceptive practice charges involving bad checks. While the petition referred to the testimony of a police sergeant at defendant’s 1965 trial that he met defendant at a police station early in 1964 after his wife (Meyer) had been arrested on a charge involving bad checks (see People v. French (1966), 75 Ill. App. 2d 453, 456), this testimony does not indicate whether Meyer was ever convicted of such a charge.

Defendant also alleged in his petition that at the time of his 1978 trial, Meyer illegally held a liquor license, referring to a certain individual’s alleged grand jury testimony. Defendant suggests in the petition that the State coerced Meyer into testifying against him. There are no affidavits or other documents attached to the petition in support of this claim, however. Because defendant’s claims concerning Meyer are not substantiated by affidavits or the record, the trial court properly denied him an evidentiary hearing on these allegations.

According to defendant, he was also entitled to an evidentiary hearing on his claim that the law firm representing him in the appeal from his 1965 conviction was operating under a per se conflict of interest, having previously represented the Du Page County State’s Attorney in an appeal from an order holding him in contempt and fining him $50 for refusing to turn over a grand jury transcript to defendant. Defendant argues that this also tainted his 1978 sentence because convictions obtained in 'violation of a defendant’s right to counsel should not be used against defendant in a subsequent proceeding. See People v. Martin-Trigona (1986), 111 Ill. 2d 295, 298.

In support of the factual allegations made in both his petition and his appellate brief concerning this alleged conflict, defendant cites only the appellate opinions in People v. French (1965), 61 Ill. App. 2d 439, the contempt case, and People v. French (1966), 75 Ill. App. 2d 453, defendant’s appeal. The attorneys involved in both cases are listed immediately prior to the texts of the opinions. A close examination of the attorney listings in these cases reveals that defendant’s factual contention is not accurate.

The opinion in defendant's appeal lists Corrigan and Mackay of Wheaton as defendant’s attorney. (See French, 75 Ill. App. 2d at 454.) The opinion in the contempt case against William Hopf, the Du Page County State’s Attorney, lists “Edgar J. Elliot, of Wheaton, for defendant-appellant” and “Corrigan and Mackay, of Wheaton ***, for plaintiff-appellee.” (See French, 61 Ill. App. 2d at 440.) The caption at the beginning of the case lists the People of the State of Illinois as the plaintiff-appellee and William V. Hopf as the defendant-appellant. Therefore, it is evident that Corrigan and Mackay was not representing the Du Page County State’s Attorney in the appeal from the contempt action; rather, the firm was representing the State, which had prosecuted the case against the State’s Attorney.

Under these circumstances, no per se conflict of interest existed. Our supreme court has held that a per se conflict of interest exists in a criminal case if defendant’s attorney has a tie to an entity which would benefit from a verdict unfavorable to defendant. (People v. Spreitzer (1988), 123 Ill. 2d 1, 16.) In each case holding that such a conflict existed, the conflict was created by defense counsel’s prior or contemporaneous association with the alleged victim or the prosecution. (See Spreitzer, 123 Ill. 2d at 14.) If Corrigan and Mackay had represented the State’s Attorney in the contempt action, a per se conflict may very well have existed. As we have seen, however, that firm was the State’s Attorney’s adversary in the appeal from the contempt order. By seeking to have the contempt order upheld, Corrigan and Mackay was actually acting in defendant’s interest since that order resulted from the State’s Attorney’s refusal to produce a grand jury transcript requested by defendant. There was no conflict of interest because of Corrigan and Mackay’s involvement in the contempt appeal, and defendant was not entitled to post-conviction relief on this basis.

Defendant also contends that he should have received an evidentiary hearing on the allegation in his petition that his 50- to 100-year sentence was excessive and disproportionate when compared with codefendant Larson’s 15- to 20-year sentence. This issue was not raised in defendant’s direct appeal (see People v. Larson (1980), 82 Ill. App. 3d 129). Issues which a defendant could have presented on direct appeal but failed to present are waived for purposes of future post-convictions petitions. (People v. Stewart (1988), 123 Ill. 2d 368, 372.) Clearly, defendant’s sentencing issues could have been raised on direct appeal.

Defendant argues that this court should consider his sentencing issues because the waiver doctrine should not prevent issues from being considered if the alleged waiver results from the incompetency of appointed counsel on appeal. (People v. Barnard (1984), 104 Ill. 2d 218, 229.) Barnard did not involve a post-conviction proceeding, but instead involved a direct appeal in which defendant raised an issue in the supreme court that had not been raised in the appellate court. While we believe the above principle still applies to post-conviction proceedings, we note that defendant did not allege in his petition that his appellate counsel for the 1978 conviction was ineffective. Failure to raise an issue in a post-conviction petition or amended petition results in a waiver of the issue. (Ill. Rev. Stat. 1989, ch. 38, par. 122-3; People v. Free (1988), 122 Ill. 2d 367, 375-76.) Thus, unless defendant’s attorneys in the post-conviction proceedings were ineffective, the ineffective assistance of appellate counsel issue and the sentencing issues are waived.

Defendant does raise such a claim, asserting that post-conviction counsel failed to follow the dictates of Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)) because his attorneys did not file an amended post-conviction petition. The rule states that the record on appeal in a post-conviction proceeding shall contain a showing that petitioner’s attorney consulted with petitioner to ascertain his or her contentions of deprivation of constitutional rights, has examined the record of proceedings at trial, and has made any necessary amendments to the pro se petition; the requisite showing may be made by filing a certificate. (134 Ill. 2d R. 651(c).) No certificate was filed in the case at bar. While compliance with Rule 651(c) may be established by the record (People v. Wilson (1985), 132 Ill. App. 3d 48, 50), it is clear from the record that no amended petition was filed and, in light of the erratic nature of the pro se petition, it should have been amended.

Our supreme court has stated, however, that, if a post-conviction petitioner refuses to cooperate with his or her attorney, the petitioner cannot complain of inadequate representation which is attributable to his or her conduct. (People v. Curtis (1971), 48 Ill. 2d 25, 30.) The record in this case illustrates defendant’s continual refusal to cooperate with the attorneys representing him. Defendant continuously sought the removal of Eugene Wojcik as his appointed attorney and the appointment of counsel from outside the public defender’s office. Another assistant public defender, Scott Conger, was designated to represent defendant. The record reveals that Conger visited defendant in prison and stated that he would review the trial record so he could make any necessary amendments to the petition. After Conger stated that he would not look into the 1965 conviction unless he could perceive a connection between it and the 1978 conviction, defendant said he did not wish to have Conger represent him and terminated the conversation.

At a subsequent hearing, defendant advised the court that he did not wish to have Conger or any other assistant public defender represent him, and he would prefer to proceed pro se. The trial judge allowed him to do so during the remaining proceedings on the petition. Later, at the same hearing, the trial judge asked if defendant desired time to amend the petition. Defendant stated that he did not wish to amend the petition. It is apparent from the above that any failure of defendant’s attorneys to comply with Rule 651(c) resulted from defendant’s own actions. Therefore, defendant may not successfully claim ineffective assistance of counsel. Furthermore, the right to appointed counsel pursuant to Rule 651(c) in a post-conviction proceeding may be waived. (See People v. Peeples (1987), 153 Ill. App. 3d 1050, 1054.) Here, as in Peeples, defendant expressed to the court a desire to represent himself and thereby waived his right to appointed counsel. Since defendant’s argument that he was entitled to an evidentiary hearing on his sentencing claims was dependent upon the success of his ineffective assistance of counsel contention, the sentencing arguments are waived.

Defendant also contends that the trial court abused its discretion by refusing to appoint counsel from outside the public defender’s office despite his repeated requests. An indigent defendant is not entitled to representation by the counsel of his or her choice; an attorney from outside the public defender’s office should be appointed only after a showing of good cause. (People v. Powell (1985), 139 Ill. App. 3d 701, 706.) Defendant argues that a conflict of interest existed because Peter Dockery, DuPage County public defender at the time of his post-conviction proceedings, was an assistant State’s Attorney at the time of his trial. Dockery, however, did not take part in the prosecution of defendant in 1977 and 1978. In People v. Spreitzer (1988), 123 Ill. 2d 1, the defendant raised a similar contention, arguing that his representation by an assistant public defender in DuPage County created a per se conflict of interest because Dockery, then the public defender, had been an assistant State’s Attorney at the time of his trial and had participated in the decision to charge defendant with murder. (See Spreitzer, 123 Ill. 2d at 12.) Our supreme court held that no per se conflict of interest existed, concluding that Dockery’s former ties to the prosecution would be counterbalanced by his subsequent role as public defender. (123 Ill. 2d at 22.) Spreitzer is controlling here, and it mandates the conclusion that no per se conflict existed.

If a potential conflict of interest is brought to the trial court’s attention at an early stage, the court must either appoint separate counsel or take adequate steps to determine whether the risk of conflict is too remote to justify separate counsel. (123 Ill. 2d at 18.) Defendant did raise this potential conflict to the trial court, but the court did take adequate steps to ascertain whether separate counsel was warranted by holding a hearing at which Dockery testified he was not involved in prosecuting defendant. Under these circumstances, the trial court correctly determined that any potential conflict of interest was too remote to warrant separate counsel.

The record reflects that the main reason defendant sought separate counsel is that Wojcik and Conger advised him that it would be futile to seek relief from the 1965 conviction. The record reveals that this advice angered defendant because of his belief that this conviction was the beginning of the massive conspiracy allegedly directed against him. Since there is a 10-year statute of limitations for post-conviction petitions (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1), this advice was very sound. Additionally, relief under the Act is only available to individuals whose liberty is constrained because of a criminal conviction. (People v. Martin-Trigona (1986), 111 Ill. 2d 295, 301.) Defendant was released from imprisonment for the 1965 conviction in 1973, and he was no longer on parole for that conviction when he filed the 1987 petition. The fact that defendant’s attorneys from the public defender’s office correctly advised him that relief from the 1965 conviction was unobtainable and should not be sought was not good cause for the appointment of outside counsel. The trial court did not err by refusing to appoint outside counsel to represent defendant.

For the above reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS and GEIGER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DARRELL SIMMONS, Defendant-Appellee.
    Second District
    No. 2 — 89—0491
    Opinion filed March 20, 1991.

      Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender's Office, of Elgin, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

The State appeals from an order of the circuit court suppressing the evidence against defendant, Darrell Simmons. Defendant was charged with possession of a substance containing less than 15 grams of cocaine (Ill. Rev. Stat. 1989, ch. h&lz, par. 1402(b)). He filed a motion to suppress the evidence, which was denied. After a stipulated bench trial, the court found defendant guilty of the offense. Defendant filed a motion for a new trial and to reconsider the motion to suppress. The court granted those motions, and the State filed this appeal pursuant to Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)). The State raises one issue on appeal: whether a police officer, executing a search warrant authorizing the search of a building and of an unidentified person, could search defendant, who was present on the scene and who had some of the characteristics of the person described in the warrant.

In the motion to suppress, defendant alleged that the search of his person was unlawful because defendant had no connection to the residence searched; he was not named in the search warrant; and he was not observed in the commission of a crime nor did the police have probable cause to believe that he had committed a crime. The search warrant authorized the search of “an unidentified male black, approximately 5 feet 8 inches, 180 lbs with brown hair and brown eyes, medium complexion and approximately 22 years of age” and of the residence located at 520 Eighth Street, in Waukegan. The warrant authorized the seizure of cocaine, drug paraphernalia associated with the use and sale of cocaine, and evidence of occupancy or ownership of the premises. In the complaint for the search warrant, the affiant, Officer Michael Bettasso, stated that an informant had made two controlled purchases of cocaine from the subject of the warrant, at 520 Eighth Street. The informant told Bettasso about the purchases and also told Bettasso that on one occasion the informant observed a room to the right of the staircase on the landing. The subject told the informant that this room was the “Smoker room,” where those who purchased cocaine could ingest it by “Freebasing” or inhaling it. The informant observed several people inside the “Smoker room” inhaling what he believed was cocaine.

At the hearing, Officer John Angelos, of the Waukegan police department, testified that on March 14, 1989, at 5:30 a.m. he went to 520 Eighth Street in Waukegan to execute a search warrant. Angelos was accompanied by Lieutenant Burleson and Officers Henriquez, Bettasso, and Bartlett. Angelos and his partner entered the bedroom off of the stairway. There were three black males in the room. Two were seated on the bed, and the other person was sitting on a chair next to the closet. Defendant was one of the men. The officers told the men to put their hands on their heads and to lie facedown on the floor. All three complied. Angelos then had defendant stand up. Angelos patted him down and then went through defendant’s pockets, where he found a packet of cocaine. Angelos further testified that when the officers first entered the room, the men did not make any move to destroy or conceal evidence, nor did they make any threatening gestures. The officers did not question defendant before they searched him. Angelos admitted that he did not know whom he was supposed to search. Angelos stated that, in addition to the packet of cocaine that he found in defendant’s pocket, the officers recovered a handgun from the bedroom and a large quantity of drugs from the basement.

On cross-examination, Angelos stated that defendant fit the description of the unidentified person described in the warrant. However, when Angelos entered the room, he did not know which one of the three men was the person described in the warrant. Angelos further stated that he found drug paraphernalia (“copper scouring powder, scrubbers, burning materials to heat up these items, baking soda for cutting purposes, and *** used *** pony packs”) on the floor, the desk and the television in the bedroom. Although the loaded handgun found in the bedroom was “not in direct view,” it was within five to six feet of defendant. Angelos had each of the three men get up, one by one, and patted them down for weapons. Angelos admitted that he searched defendant’s pocket because he believed that it contained contraband since defendant was in the “Smoker room.” During the search, Angelos did not “pay any attention to” defendant’s height and later estimated that defendant’s height was 5 feet 11 inches.

Defendant testified that on March 15, 1989, he was between 6 feet and 6 feet 1 inch tall and he was living in Bellwood, Illinois. Defendant was 23 years old. Defendant admitted that he weighed 175 pounds and had a “[mjedium complexion.”

After hearing the arguments of counsel, the court noted that people frequented the residence at 520 Eighth Street to buy drugs and that the room where defendant was found was used to consume drugs. It was not clear to the court whether the gun was concealed. The court stated that it appeared that only one officer was in the room and there was a gun in the room; thus, the search of the men was justified as a protective search. The court also noted that there was a two- to four-inch discrepancy in the height, but that all the other characteristics of the person described in the warrant fit defendant: “180 pounds, brown hair[,] brown eyes, medium complexion, approximately twenty-two years of age.” Consequently, the court denied the motion.

Following the stipulated bench trial, wherein the court found defendant guilty of the offense, defendant filed a motion for a new trial or to reconsider the ruling on the motion to suppress. At the hearing on that motion, the court admitted that it made some unwarranted assumptions on which it based its prior ruling. The court emphasized that there was no evidence that the gun was in plain view, nor was there evidence of any pat downs that may have resulted in finding a gun, because the officer reached into defendant’s pocket, rather than just patting him down to determine whether he had a concealed weapon. There was also no evidence of the physical characteristics of the two other men in the room. The court also erroneously assumed that Angelos was the only police officer in the room. The court indicated that it based its prior ruling on the probable cause to arrest defendant for unlawful use of weapons. The court rejected the State’s argument that the search of defendant was lawful as pursuant to a search warrant, stating, “[i]f there were some evidence the other two did not fit that description,” the State would be correct. Defense counsel argued that the State could not rely on the warrant because it was overly broad. The court then granted the original motion to suppress.

On appeal, the State contends that the search of defendant was valid for two reasons: (1) defendant fit the description in the warrant of the person to be searched; and (2) the officers had probable cause to believe that defendant was concealing contraband.

In this appeal, the State must overcome the presumption in favor of the suppression order because a trial court’s decision to suppress evidence will not be overturned on review unless that decision is clearly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153, 162.) Although the defendant has the burden of proof to make a prima facie showing that the police obtained the evidence illegally, once he satisfies that burden, the burden of proof then shifts to the State to show that the search was legal. People v. Kolody (1990), 200 Ill. App. 3d 130, 134.

The State argues that the search of defendant was proper because he substantially fit the warrant description of the person to be searched. The fourth amendment to the United States Constitution “prohibits the issuance of any warrant except one ‘particularly describing the place to be searched and the persons or things to be seized.’ The manifest purpose of this particularity requirement was to prevent general searches.” (Maryland v. Garrison (1987), 480 U.S. 79, 84, 94 L. Ed. 2d 72, 80, 107 S. Ct. 1013, 1016.) The Code of Criminal Procedure of 1963 also requires that the person to be searched must be described with particularity. (See Ill. Rev. Stat. 1989, ch. 38, pars. 108 — 3, 108 — 7.) The State, without citation to authority, asserts that the warrant was not vague or uncertain because it described the physical characteristics of the intended subject of the warrant.

The warrant authorized the search of an “unidentified” person. This is a “John Doe” type warrant. Generally, “John Doe” warrants have been held illegal, unless the warrant somehow names the person or describes him sufficiently. (West v. Cabell (1894), 153 U.S. 78, 85, 38 L. Ed. 643, 644-45, 14 S. Ct. 752, 753; see also United States v. Doe (3d Cir. 1983), 703 F.2d 745, 747.) To determine the warrant’s validity, courts must decide how much information must be supplied by it. Doe, 703 F.2d at 748.

A search warrant that does not have any name or with only a first name may be valid if, on its face, the warrant includes other facts such as a physical description and a location where the person may be found. (2 W. LaFave, Search & Seizure §4.5(e), at 228-29 (2d ed. 1987).) A search warrant for a person must describe the person to be searched in such manner as to leave the executing officer no doubt or discretion about whom to search. (People v. Staes (1968), 92 Ill. App. 2d 156, 160; Clark v. State (Ala. Crim. App. 1987), 527 So. 2d 161, 162.) Whether a search warrant is sufficiently particular depends on the facts and surrounding circumstances. People v. Dorris (1982), 110 Ill. App. 3d 660, 664.

In United States v. Ferrone (3d Cir. 1971), 438 F.2d 381, 389, the court upheld a warrant that authorized the search of “ ‘John Doe, a white male with black wavy hair and stocky build observed using the telephone in Apartment 4-C, 1806 Patricia Lane, East McKeesport, Pennsylvania.’ ” A similar warrant was upheld in United States v. Espinosa (9th Cir. 1987), 827 F.2d 604. The warrant authorized a search of a hotel room into which the defendant had moved, an apartment on Sepulveda, and two automobiles, a BMW and a Honda. The warrant also authorized the search of a “male Latin, approximately 35 years of age, 5 feet 8 inches/5 feet 10 inches, approximately 200 pounds with black hair and black full beard.” (Espinosa, 827 F.2d at 607.) The officers had been watching the defendant for about two weeks; they saw him driving a grey BMW and a Honda; and they saw him go into an apartment on Sepulveda.

The warrant in State v. Malave (1974), 127 N.J. Super. 151, 316 A.2d 706, also did not contain the name of the person to be searched. There, the search warrant authorized the search of “the premises of 851 Madison Ave 3rd floor and all parts connected thereto. Plus a Puerto Rican male in his forties about 5 feet 6 in height[,] medium build who lives at said address.” (Malave, 127 N.J. Super, at 153, 316 A.2d at 707.) While the court recognized that “the description of defendant in the warrant would fit a large number of people in Paterson, New Jersey,” the particularity of the warrant was “enhanced by the fact that the affiant in support of” the search warrant participated in its execution. (Malave, 127 N.J. Super, at 154, 316 A.2d at 708.) This principle is based on the theory that the chance for mistake is greatly decreased because the officer executing the warrant already knows whom he is supposed to search. Malave, 127 N.J. Super, at 155, 316 A.2d at 708.

The search warrant in the present case authorized the search of premises and an unidentified person. The description of the person is more limited than it first appears. Since most blacks have dark hair and dark eyes, the warrant only describes the person as a young black male, 5 feet 8 inches in height and weighing 180 pounds. This type of description is similar to those in Espinosa and Ferrone and is exactly the same as that in Malave-, it would fit a large number of people in Waukegan. The crucial difference between those cases and the present case is that here the affiant, Officer Bettasso, did not know the person described in the search warrant. In the other cases, the officers had seen the subject of the warrant and knew whom they were supposed to search.

Since the officers here did not have personal knowledge of the identity of the subject of the warrant, they had great discretion in determining whom to search, and there was nothing to diminish the possibility that the officers would search the wrong person by mistake. Without recognition of the subject of the search warrant, the warrant in this case operated as a general warrant, which is forbidden under the fourth amendment. See Malave, 127 N.J. Super, at 154, 316 A.2d at 708; see also People v. Nieves (1975), 36 N.Y.2d 396, 400-01, 369 N.Y.S.2d 50, 56-57.

Even if the warrant were valid, the search of defendant was beyond the scope of the warrant. The warrant authorized the search of a medium height, heavyset or muscular man who was the occupant of the premises. Defendant is tall and of average build and was not a resident of the premises. The State complains that it would not be practical for officers to carry a tape measure and scale to determine whether a person fits the warrant’s description. The State has missed the point: the officers could have, and later did, determine the approximate height of defendant. The height and weight description in the warrant described the build of the person to be searched. Common experience should have told the officers that a person who is 5 feet 8 inches in height and who weighs 180 pounds is heavyset or muscular. Although there is no evidence in the record to establish the build or height of the other two men in the room, it is clear from the record that the officers were not concerned with determining which of them might be the person described in the warrant because the officers did not ask any questions and searched all three men. Thus, we agree with the trial court’s conclusion that the officers did not search defendant in the mistaken belief that he was the person described in the warrant.

The State next argues that even if the search of defendant cannot be based on the warrant, the search was a permissible warrantless search based on probable cause. Section 108 — 9 of the Code of Criminal Procedure of 1963 governs the detention and search of persons on the premises during the execution of a search warrant. Section 108 — 9 provides that a police officer “may reasonably detain to search any person” on the premises only “[t]o protect himself from attack,” or “[t]o prevent the disposal or concealment of any instruments, articles or things particularly described in the warrant.” Ill. Rev. Stat. 1989, ch. 38, par. 108 — 9.

Warrantless searches are per se unreasonable. (Payton v. New York (1980), 445 U.S. 573, 586, 63 L. Ed. 2d 639, 651, 100 S. Ct. 1371, 1380.) When a warrantless search is challenged, the burden of going forward with evidence to demonstrate the legal justification for a search shifts to the State once the defendant has presented evidence showing that he was doing nothing unusual at the time of the search. (People v. Broge (1987), 159 Ill. App. 3d 127, 140; see also People v. Bohan (1987), 158 Ill. App. 3d 811, 820.) The record shows that the police officers searched defendant without a warrant, and he was sitting in a room with two other people, doing nothing unusual. Thus, the State was required to prove that the search of defendant was reasonable. The trial court concluded that the State failed to sustain its burden.

It is well established that a person may not be searched during the execution of a search warrant merely because that person happens to be present on the premises. (Ybarra v. Illinois (1979), 444 U.S. 85, 90-91, 62 L. Ed. 2d 238, 245, 100 S. Ct. 338, 341-42.) There must be a sufficient connection between the person searched and the premises (People v. Gutierrez (1985), 109 Ill. 2d 59, 62), or independent probable cause to search a person on the premises (Ybarra, 444 U.S. at 91, 62 L. Ed. 2d at 245, 100 S. Ct. at 342). According to the State, the officers had probable cause to search defendant because he was in the “Smoker room” and there were numerous items of drug paraphernalia scattered about the room. In addition, it was alleged in the complaint for the search warrant that the premises were used for the purchase and consumption of cocaine.

Defendant was not an occupant of the premises; therefore, the State was required to show some independent probable cause to search him. Because “Ybarra does not condition a person’s expectation of privacy on the type of premises being searched,” the requirement of probable cause to search applies to private residences as well as public places. (People v. Gross (1984), 124 Ill. App. 3d 1036, 1039.) The court in Gross found that the police did not have probable cause to search the defendant, a social guest who was present during the execution of a search warrant, even though the premises were the site of suspected drug trafficking and the search revealed an “array of drugs” throughout the house. Gross, 124 Ill. App. 3d at 1039.

We agree with defendant that this case is similar to Gross. The State did not present any evidence to show that defendant was not a social guest on the premises. The State failed to establish a sufficient nexus between defendant and the premises, yet the State seeks to bootstrap the nature of the room and the objects found in it to amount to probable cause to search defendant. If, in fact, the room was a “Smoker room,” one would expect there to be paraphernalia in it. That does not necessarily mandate the conclusion that defendant engaged in the smoking or ingesting of cocaine in that room. The State presented no evidence that the room was used exclusively for the consumption of cocaine. The record shows that the room had a bed, a desk, a dresser, a television and at least one chair. The argument, that because defendant was present in that room there was probable cause to search him, falls afoul of the holding of Ybarra. The probable cause “requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search *** the premises where the person may happen to be.” Ybarra, 444 U.S. at 91, 62 L. Ed. 2d at 245, 100 S. Ct. at 342.

Therefore, the State needed to show that there was independent probable cause to search defendant. We conclude that the evidence does not support a finding of probable cause. There was no contraband in open view. Defendant cooperated with the police officers and did not act in a suspicious manner or make any furtive gestures. (See Gross, 124 Ill. App. 3d at 1039; cf. People v. Redmiles (1989), 191 Ill. App. 3d 198, 201-02 (there was probable cause to search the defendant based on his flight when he saw the police officers approach the house).) In addition, the State failed to present any evidence to show that the paraphernalia had been used recently. (See 2 W. LaFave, Search & Seizure §3.6(b), at 42 (2d ed. 1987) (“even the observation of [paraphernalia] would not establish probable cause for a search, at least in the absence of other evidence tending to show its recent use”).) Thus, the belief that defendant possessed cocaine was a mere hunch or suspicion, which is insufficient to establish probable cause to search him. (See Terry v. Ohio (1968), 392 U.S. 1, 22, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880.) We therefore conclude that the trial court’s decision to grant the motion to suppress was not against the manifest weight of the evidence.

The judgment of the circuit court is affirmed.

Affirmed.

WOODWARD and UNVERZAGT, JJ., concur.


text:
    JEFFERY CONDON, Plaintiff-Appellant, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, INC., Defendant-Appellee.
    Second District
    No. 2 — 90—0578
    Opinion filed February 6, 1991.
    — Rehearing denied April 23, 1991.

      Robert Gonnella, of Chicago, for appellant.
    Tracy D. Kasson, of Rathje, Woodward, Dyer & Burt, of Wheaton (Gary L. Taylor, of counsel), for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Jeffery Condon, appeals from a directed verdict for the defendant, American Telephone and Telegraph Company (AT&T), on plaintiff’s claim of breach of an implied contract. At issue in this case is whether an employer may alter policies contained in employment handbooks and manuals to prevent contractual rights in those policies from arising in its employees. In this case the employer, defendant AT&T, altered an existing manual to disclaim any contractual obligation to its employees which may arise by virtue of the policies contained therein. The plaintiff claims that the disclaimers are not valid because AT&T may not alter an existing policy to change the plaintiff’s rights and, therefore, AT&T breached an implied contract in those policies when it demoted him. In directing the verdict, the trial court found the disclaimers were valid and prevented any such contractual rights from arising. We affirm. The facts of the case are as follows.

Plaintiff Condon joined the Illinois Bell Company after college as a management trainee in 1966 and thereafter worked in numerous capacities. At that time Illinois Bell was a wholly owned subsidiary of AT&T. Plaintiff left Illinois Bell to work directly for AT&T in 1983. The Bell System contained six “levels” of management. While at AT&T, plaintiff achieved a “third level” field position.

On January 1, 1984, the regional Bell companies were divested from AT&T. Early in 1985, during one of its many corporate reorganizations following divestiture, AT&T eliminated the third level of management from its field operations. Plaintiff was given the option of a transfer to New Jersey as a third level staff manager or to remain in Illinois in a second level position with a guarantee of two ye ',rs of income protection, which meant his base salary would remain that of a third level manager. Plaintiff chose to stay in Illinois.

Later that year, as a part of this reorganization and downsizing, defendant AT&T offered managers a method of voluntarily terminating their employment called the Managers Income Protection Program (MIPP) in areas where a surplus of employees had been declared. If a manager elected MIPP by the election date deadline of October 4, 1985, the manager would receive severance pay of up to one year’s salary based upon his or her years of service. Plaintiff was eligible to receive a full year’s salary payable in monthly installments over one or two years.

Plaintiff then inquired of his supervisor, Mr. Richard Kiltz, if he would be able to receive the MIPP offering in one lump sum instead of monthly payments. Mr. Kiltz transmitted this request to his supervisor, Mr. William Lloyd. He later informed Mr. Kiltz that the plaintiff’s request was not approved. However, plaintiff was not informed of the denial of his request until after the October 5, 1985, deadline had passed. When plaintiff attempted to elect the MIPP plan as offered, he was told the election date had passed and the offer was no longer available.

Plaintiff was then assigned to a staff position with Dehlia O’Malley as his immediate supervisor beginning January 1, 1986. Up until this time, the plaintiff had been rated as outstanding or excellent in his yearly performance appraisals by his superiors. Ms. O’Malley met with the plaintiff periodically to discuss his performance. On April 14, 1986, Ms. O’Malley expressed her dissatisfaction with the plaintiff’s work to the plaintiff. On May 9, 1986, she informed the plaintiff that the problems had not improved.

Plaintiff was temporarily assigned to Cleveland, Ohio, for strike duty during a work stoppage by nonmanagement employees on or about June 1, 1986. Upon his return he was summoned to Dehlia O’Malley’s office and presented with a letter listing a number of deficiencies in his performance. The letter informed him that his performance was unsatisfactory and effective July 1, 1986, he had the option of finding a position elsewhere within AT&T or accepting a demotion to a first level store manager’s position and assigned to the Worth, Illinois, phone store. The date on the letter was May 27, 1986. Plaintiff did not see a copy of the letter until his return on June 20, 1986.

Plaintiff attempted to have his job action reviewed by his superiors. He wrote to Ms. O’Malley’s superior, Robert Martin, asking for a review of his file and informing Mr. Martin that he would refuse a demotion. On June 30, 1986, Martin wrote back to inform the plaintiff that he concurred in the job action and stated that AT&T would accept his resignation if he did not want to be demoted. Plaintiff wrote back to Martin on July 5, 1986, informing him that he was not resigning and requesting a hearing on his job action. Ms. O’Malley wrote to plaintiff and stated that whether he was resigning or not, his failure to report to the phone store was considered job abandonment and he was terminated.

Plaintiff asserts that the actions of AT&T were in violation of certain written policies contained in personnel and management training manuals, specifically the AT&T Information Systems Managers’ Personnel Guide and the Employee Development System/Management Booklet. Those policies contain language requiring the use of certain procedures when dealing with “non-performing” employees. The policies include (a) written notification of deficiency; (b) written improvement plans with objectives and time frames for improvement; and (c) written notification to the employee on the results of the improvement program. These manuals were disseminated to management personnel. As a manager, plaintiff had occasion to utilize or supervise the use of them himself when dealing with lower level management employees or other supervisors. Plaintiff contends these policies created an expectation that he would be treated according to written procedures and that AT&T’s actions were in violation of those written procedures.

Plaintiff does not recall seeing disclaimers in either handbook before November 1984, which is a year ahd a half after the plaintiff moved from Illinois Bell to AT&T. Various portions of the copy of the Manager’s Personnel Guide admitted into evidence are marked with issue dates ranging from October 1984 to February 1986. The Managers’ Guide has a number of disclaimers.

A general disclaimer is placed on the first page following the table of contents. It has an issuance date of February 1986. Chapter 17 of the Managers’ Guide pertains to performance appraisals. It contains a disclaimer on the first page of the chapter which states:

“This section of the Managers’ Personnel Guide, like all other personnel handbooks published by AT&T, represents internal policy guidelines. It is not a contract or guarantee and should not be construed as such. No employee should construe this section as limiting the right of the company to:

—discharge or discipline, or

—utilize certain procedures in regards to discharge or discipline.

The policies contained in this section can be changed at any time but only by the Vice President of Personnel and Labor.”

This chapter has an issue date of November 1984.

Similarly, Chapter 18 of the Managers’ Guide, which pertains to termination of employment, contains a disclaimer on the first page of the chapter. That disclaimer states:

“This chapter *** is intended as a general policy statement containing broad internal policy guidelines and not as a contract or commitment. None of the policies/guidelines we set forth herein are exclusive or all-inclusive ***. All policies/ guidelines contained herein may be changed unilaterally at any time ***. Nothing herein should be interpreted as a limitation on the right to discharge or on the procedures for discharge or termination of employees. All management employees are employed ‘at will’. They may leave the company at any time for any reason. The company may discharge or terminate them at any time for any reason.”

The issue date on this chapter is February 1986.

Plaintiff claims the disclaimers are invalid because they were not contained in the original policy statement disseminated to the plaintiff when he was hired. Plaintiff argues an implied contract arose by virtue of the original policies and AT&T may not unilaterally alter those policies at a later date to negate that implied contract. We believe an employer may unilaterally alter existing policies to disclaim those policies in order to prevent contractual obligations from arising under Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482. We turn now to our discussion of the issue.

Because this case comes to us on appeal from a directed verdict, a special standard of review must be used. In reviewing a verdict directed by the trial court, the evidence must be viewed in the light most favorable to the nonmoving party, and all inferences will be drawn in favor of the nonmoving party. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) Thus, a directed verdict is proper only when the evidence “so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand.” (Pedrick, 37 Ill. 2d at 510.) Accordingly, we believe the trial court was correct in directing a verdict for the defendant on plaintiff’s claim for breach of an implied contract.

Plaintiff is claiming an implied contract arose by virtue of AT&T policy handbooks under Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482. In that case, our supreme court held that, while employment for an indefinite period of time is presumed to be terminable at will, this presumption may be overcome by proof that the parties contracted otherwise. (Duldulao, 115 Ill. 2d at 489.) The plaintiff in Duldulao alleged that an employee handbook which had been disseminated to all employees and contained specific procedures for dismissal created a contract between the defendant and its employees. The plaintiff claimed her termination violated procedural rights she had by virtue of this implied contract with the defendant.

The court concluded that an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are met. The court set out a three-part test for contract formation:

“First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement.” Duldulao, 115 Ill. 2d at 490.

The court went on to state that when these conditions are present, the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles, a valid contract is formed. (Duldulao, 115 Ill. 2d at 490.) The court noted that no disclaimers were piesent to negate the promises made. (Duldulao, 115 Ill. 2d at 491.) In finding for the plaintiff, our supreme court relied on the reasoning of the supreme court of Minnesota in a similar case, Pine River State Bank v. Mettille (Minn. 1983), 333 N.W.2d 622.

Since Duldulao, this court has found the presence of disclaimers in an employee handbook or manual negates contract formation under Duldulao. (Moore v. Illinois Bell Telephone Co. (1987), 155 Ill. App. 3d 781.) In Moore, the plaintiffs alleged the defendant, Illinois Bell, breached an implied contract to set incentive pay according to a published incentive plan. However, that plan contained a written disclaimer on the first page of the plan following the title page. The disclaimer stated:

“ ‘AT&T reserves the right to amend, change, or cancel the Incentive Plan at its discretion. It also reserves the right to reduce, modify, or withhold awards based on individual performance or management modification. The Plan is a statement of management’s intent and is not a contract or assurance of compensation.’ ” (Moore, 155 Ill. App. 3d at 783.)

Thus, the incentive plan did not create an implied contract because the first requirement for contract formation under Duldulao was lacking. The incentive plan did not “contain a promise clear enough that an employee would reasonably believe that an offer has been made.” (Duldulao, 115 Ill. 2d at 490.) The disclaimer prevented the incentive plan from being interpreted as creating an implied contract enforceable by the plaintiffs.

In the present case, plaintiff alleges a contract was created between himself and AT&T by virtue of certain personnel and management training manuals specifying procedures to be followed before dismissal or demotion of a “non-performing” employee. The plaintiff contends that the procedures set out in both the AT&T Information Systems Managers’ Personnel Guide and the Employee Development System/Management Booklet create a clear promise under Duldulao that AT&T would follow those procedures before the dismissal or demotion of an employee. However, these documents both contain clear disclaimers.

Plaintiff does not recall seeing the disclaimers in these handbooks before November 1984, a year and a half after he began working for AT&T. The Managers’ Personnel Guide, which contains a number of disclaimers, does not have one issuance date, but rather different portions of the document have different issue dates, the earliest being October 1984. The record before us does not reveal when, in fact, the disclaimers were inserted. Because the record is silent as to whether the disclaimers were present before the plaintiff recalls seeing them in November 1984, viewing the evidence in the light most favorable to the plaintiff the disclaimers cannot be read into the Managers’ Personnel Guide until that time. As for the Employee Development System Booklet, the evidence shows it contained a disclaimer from its inception in May 1986 and was disseminated as such. Plaintiff argues the disclaimers were not initially a part of the policy; therefore, AT&T is prohibited from unilaterally altering its policies to disclaim contractual rights under Duldulao at a later date. We disagree.

The implied contract which arises under the Duldulao doctrine is unilateral in nature. In setting out its test for contract formation, the Duldulao court stated in part three of the test that the employee accepts the offer by working or continuing to work. (Duldulao, 115 Ill. 2d at 490.) The only way an employee could accept an offer by continuing to work is if the employee was already employed and the employer altered an existing policy. Implicit in this requirement is that the employer may unilaterally change its own policies.

As stated previously, the Duldulao court relied on the reasoning of the Pine River court in reaching its decision. In Pine River, the Minnesota Supreme Court also described the contractual relationship which arises between an employee and an employer by virtue of an employee handbook as unilateral. The employer makes the offer through the handbook and the employee accepts that offer by working. The court went on to explain:

“In the case of unilateral contracts for employment, where an at-will employee retains employment with knowledge of new or changed conditions, the new or changed conditions may become a contractual obligation. In this manner, an original employment contract may be modified or replaced by a subsequent unilateral contract. The employee’s retention of employment constitutes acceptance of the offer of a unilateral contract; by continuing to stay on the job, although free to leave, the employee supplies the necessary consideration for the offer.” Pine River State Bank v. Mettille (Minn. 1983), 333 N.W.2d at 627.

Plaintiff argues the defendant should not be allowed to change its policy once contractual rights have arisen because to do so would defeat the purpose of Duldulao. However, it is clear that neither the Duldulao court nor the Pine River court meant to limit an employer’s right to alter its own policies. Nor are we prepared to hold that once employers create a policy they are not free to change it.

The supreme court of Michigan was faced with a similar question and noted that the definition of “policy” is commonly understood to be a flexible framework for operational guidance, not a perpetually binding contractual obligation. (In re Certified Question (1989), 432 Mich. 438, 456, 443 N.W.2d 112, 120.) To hold an employer may not change a policy once it has been created may deter employers from creating such policies in the first place. The Michigan Supreme Court also noted that in the modern economic climate, the operating policies of a business enterprise must be adaptable and responsive to change. (432 Mich. at 456, 443 N.W.2d at 120.) We agree with these observations.

Accordingly, we hold that plaintiff is bound by the disclaimers. The Duldulao court stated that, when the three conditions for contract formation are present, the employee’s continued work constitutes consideration for the promises contained in the statement. (Duldulao, 115 Ill. 2d at 490.) Therefore, the implied contract that arises is unilateral and may be modified or revoked. The plaintiff continued to work after the disclaimers were inserted and is therefore bound by them. See Duldulao, 115 Ill. 2d at 490; see also Bartinikas v. Clarklift of Chicago North, Inc. (N.D. Ill. 1981), 508 F. Supp. 959.

Plaintiff also contends that, even if the disclaimers are valid, they constitute an affirmative defense and the trial court erred in allowing them into evidence because they were not raised in the defendant’s answer. The trial judge did not allow the defendant to amend its pleadings to include the disclaimers as an affirmative defense because he did not believe they constituted an affirmative defense. We agree with the trial court.

The test for whether a defense is affirmative and must be pleaded by the defendant was set out by our court in Worner Agency, Inc. v. Doyle (1984), 121 Ill. App. 3d 219. The court stated the test is whether the defense gives color to the opposing party’s claim and then asserts new matter by which the apparent right is defeated. (Worner, 121 Ill. App. 3d at 222.) In Worner, the court found that want of consideration is not an affirmative defense because it does not give color to the plaintiff’s claim but rather attacks the sufficiency of that claim. (121 Ill. App. 3d at 222-23.) In contrast, the court explained that failure of consideration is an affirmative defense because it impliedly admits the sufficiency of the underlying contract but offers an excuse of the defendant’s failure to perform. 121 Ill. App. 3d at 222.

The trial court was correct in finding the disclaimers prevented a contract from being formed ab initio under Duldulao. The disclaimers do not constitute an affirmative defense because they do not give color to the plaintiff’s claim of breach of an implied contract under Duldulao, but rather prevent a contract from being formed. Thus, the trial court was correct in allowing evidence of the disclaimers to be introduced into evidence at trial.

In sum, the trial court was correct in directing a verdict for the defendant on plaintiff’s claim of breach of an implied contract. The disclaimers clearly prevent a contract from being formed under Duldulao. AT&T is not bound to follow the policies cited by the plaintiff. AT&T reserved the right to terminate employees for any reason.

The judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT and BOWMAN, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK E. YARBROUGH, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0080
    Opinion filed March 14, 1991.

      Daniel D. Yuhas and Lori L. Mosby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On December 26, 1989, the circuit court of McLean County, following a hearing, denied defendant Frederick Yarbrough’s petition for post-conviction relief. Defendant now appeals.

On July 16, 1986, defendant was found guilty by a jury of committing multiple criminal offenses. This court affirmed his convictions for home invasion, heinous battery, robbery, aggravated battery, and residential burglary (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 11(a)(2), 12— 4.1, 18 — 1, 12 — 4, 19 — 3), and the 50-year extended-term prison sentences imposed for the first two offenses in People v. Yarbrough (1987), 156 Ill. App. 3d 643, 509 N.E.2d 747. The facts of these offenses are adequately set forth there and need not be recounted for purposes of this disposition.

In 1987, defendant filed a pro se petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. .1987, ch. 38, pars. 122 — 1 through 122 — 8). Counsel was appointed and, on October 17, 1988, an amended post-conviction petition was filed. This petition alleged defendant had received ineffective assistance of counsel at trial, and it contained 50 specific allegations with references to the trial transcript. On May 12 and December 26, 1989, hearings on the petition were conducted, with defendant being present and testifying each day. The court, on December 26, 1989, denied defendant’s petition.

Defendant now appeals, asserting this matter must be remanded for a new hearing on his petition because trial counsel failed to file a certificate of compliance pursuant to Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). Defendant observes various courts have concluded that failure of counsel to file a certificate of compliance pursuant to this rule is harmless error, if an examination of the record clearly indicates counsel met the requirements of the rule. (See People v. Bone (1987), 154 Ill. App. 3d 412, 417, 506 N.E.2d 1033, 1036; People v. Butler (1989), 186 Ill. App. 3d 510, 517, 541 N.E.2d 171, 174-75; People v. Alexander (1990), 197 Ill. App. 3d 571, 572, 554 N.E.2d 1078, 1079.) However, he believes application of People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, calls for a different conclusion. In Wilk, the court held it was never harmless for counsel to fail to file the mandatory certificate of Rule 604(d) (134 Ill. 2d R. 604(d)). Defendant believes this analysis should apply with equal validity to Rule 651(c) and that the failure to file a Rule 651(c) certificate cannot be harmless error.

Unfortunately for defendant, his argument must fail because it rests upon a faulty foundation, which is that it is mandatory under Rule 651(c) that counsel file a certificate of compliance.

Rule 651(c) provides that on appeal:

“The record filed in that court shall contain a showing, which may be made by the certificate of petitioner’s attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” 134 Ill. 2d R. 651(c).

Admittedly, the Bone, Butler, and Alexander courts have held the failure of counsel to file the certificate is harmless error in the circumstances before those courts. However, to the extent that they suggest the filing of the certificate is required in every case and that the failure to do so is error, these cases are incorrect. These mistaken conclusions are predicated upon an unfortunate miscitation.

Both Butler and Alexander cite Bone for the above proposition. Bone cites to People v. Ford (1981), 99 Ill. App. 3d 973, 426 N.E.2d 340. However, Ford does not stand for this proposition. In Ford, the court stated:

“Compliance with Rule 651(c) need not be determined solely from a certificate, however. The law only requires the record to show that counsel has fulfilled these obligations.” {Ford, 99 Ill. App. 3d at 975, 426 N.E.2d at 342.)

In making this statement, the court cited to People v. Drew (1976), 36 Ill. App. 3d 807, 809, 345 N.E.2d 45, 47, which is also cited favorably in People v. Bennett (1980), 82 Ill. App. 3d 596, 601, 403 N.E.2d 50, 55, and People v. Allen (1986), 151 Ill. App. 3d 391, 394, 502 N.E.2d 1260, 1262. Thus, it is evident the proper holding is that Rule 651(c) does not require the filing of a certificate of compliance by counsel.

This conclusion complies with the clear reading of Rule 651(c). The rule only requires that the record shows that counsel has performed certain duties. It provides that this showing may be made by a certificate of compliance, but it does not require one be filed as in other rules. See, e.g., 134 Ill. 2d R. 604(d).

It is also supported by our supreme court’s analysis. In People v. Brown (1972), 52 Ill. 2d 227, 287 N.E.2d 663, the court concluded the case had to be remanded for failure to comply with Rule 651(c). However, it is interesting that the court did not reach that conclusion based upon the failure of counsel to file the certificate. Rather, it stated:

“An examination of the record of the post-conviction proceedings *** shows that it does not meet the record requirements set out in our Rule 651(c).” (Emphasis added.) (Brown, 52 Ill. 2d at 229, 287 N.E.2d at 665.)

Later, the court stated:

“[I]t is clear there is nothing in the record to show that appointed counsel examined the record of the petitioner’s trial proceedings. The State does not dispute this but first replies that there is nothing to indicate that counsel did not examine the trial record. There is no merit to this reply, for Rule 651(c) explicitly requires a- showing that counsel has examined the trial record.” (Brown, 52 Ill. 2d at 230, 287 N.E.2d at 665.)

Thus, it is clear the court is not concerned with the presence or absence of a certificate, but with the state of the record.

This conclusion is also buttressed by People v. Dodd (1974), 58 Ill. 2d 53, 317 N.E.2d 28, where defendant contended there was no compliance with Rule 651(c). The court stated:

“Although the better practice would be to show compliance with Rule 651(c) by the certificate of petitioner’s appointed counsel, the transcript of the oral argument before the trial court shows that appointed counsel was familiar with the trial court record and that he knew, and argued to the circuit court, the allegations contained in the pro se petition. From our examination of the record we conclude that petitioner was adequately represented in the circuit court.” Dodd, 58 Ill. 2d at 56, 317 N.E.2d at 30.

Accordingly, we conclude, as indicated above, that Rule 651(c) does not require the filing of a certificate of compliance by counsel. It only requires that the record shows that counsel complied with its mandates. The rule does provide that this compliance can be shown by the filing of a certificate of compliance, and we agree with the Dodd court that the filing of such a certificate is the better practice as it would help avoid disputes such as this. However, it is not required and, therefore, failure to do so is not error, harmless or otherwise.

Having established that, we now turn to the record in the case at bar. The record establishes that counsel amended the petition to include 50 allegations of ineffective assistance. Also, it shows from argument at the hearing and the petition itself where he cites to pages of the trial transcript that counsel had examined and was familiar with the record. Last, defendant appeared twice in court with counsel, and a letter from defendant to the court indicates that counsel communicated with defendant prior to the filing of the amended complaint. We conclude this sufficiently establishes that Rule 651(c) has been complied with.

Further, this court allowed the State to supplement the record with counsel’s certificate of compliance. The filing of such a certificate during the pendency of an appeal satisfies Rule 651(c). (People v. Harris (1971), 50 Ill. 2d 31, 34-35, 276 N.E.2d 327, 329; Allen, 151 Ill. App. 3d at 393-94, 502 N.E.2d at 1262; People v. Akers (1985), 137 Ill. App. 3d 922, 928, 484 N.E.2d 1160, 1164.) This also resolves the question.

Defendant finally asserts that he is entitled to a new hearing because counsel failed to obtain a specific ruling from the court on each allegation. He believes it is incumbent on counsel to do so. He cites no authority for this creative proposition. However, it is clear he received the rulings he seeks. While the court specifically addressed only some of the 50 allegations and not others, the court did deny the entire petition. Thus, the court must have necessarily found all the allegations contained therein meritless, as we do this argument.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


author: JUSTICE GREEN

text:
    MAX W. HARBAUGH, Plaintiff-Appellee, v. NANCY R. HAUSMAN et al., Co-Ex’rs of the Estate of C.A. Rice, Deceased, Defendants-Appellants.
    Fourth District
    No. 4 — 90—0622
    Opinion filed March 7, 1991.
    — Rehearing denied April 2, 1991.

      Jeffrey W. Tock, of Phebus, Tummelson, Bryan & Knox, of Urbana, for appellants.
    Emerson L. Moore, of Lemn'a, Moore & Carroll, of Tuscola, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

This case concerns the illusive concepts involved in the rescission of a contract on the basis of a mutual mistake as to antecedent matters which include questions of law. The case began on January 27, 1989, when plaintiff Max W. Harbaugh filed a complaint in the circuit court of Douglas County against defendants Nancy R. Hausman and Christopher Hausman, coexecutors of the estate of C.A. Rice, deceased. Plaintiff sought specific performance of a contract whereby defendant’s decedent agreed to sell him 330 shares of the capital stock of the Villa Grove Bank (Bank). On June 27, 1990, the court granted plaintiff’s motion for summary judgment. On July 3, 1990, defendants filed a motion to reconsider. On August 14, 1990, defendants were given leave to file affirmative defenses requesting a rescission of the contract. After a hearing on defendants’ motion for reconsideration, that motion was denied on August 14, 1990.

Defendants have appealed, contending the affirmative defenses together with depositions and exhibits on file create at least a factual question as to whether a mutual mistake as to the legal effect of a preexisting option agreement between the parties requires rescission of the contract upon which suit was brought. We recognize the reluctance of courts to rescind contracts upon the basis of mutual mistakes of law. (Holbrook v. Tomlinson (1922), 304 Ill. 579, 136 N.E. 745.) However, we deem some explanation of the facts of the case is appropriate before we confront the legal question upon which this case turns. Because, in order to be entitled to a summary judgment, a movant must show undisputed facts which established the movant is entitled to judgment as a matter of law (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867), we recite those facts in the light most favorable to the defendants against whom the summary judgment was entered.

Defendants’ decedent was chairman of the board of the Bank at times pertinent until December 1983. On December 20, 1976, decedent entered into a contract with Harrison J. McCown, the majority shareholder of a holding company owning a controlling interest in the Bank. That contract granted McCown (1) an option of first refusal to purchase decedent’s bank shares at any time during decedent’s lifetime for $8,000, and (2) an absolute option right to purchase those shares for that price for 60 days following decedent’s death. On November 24, 1978, a tripartite agreement was entered into between the decedent, plaintiff, who was then president of the Bank, and McCown whereby McCown released decedent from the 1976 option agreement and decedent granted the same option terms to plaintiff. That agreement provided that “in consideration of SELLER [decedent] granting to BUYER [plaintiff] the exclusive first option, BUYER agrees to pay to SELLER $100.00 the receipt of which is hereby acknowledged by SELLER.”

Evidence indicated a check for $100 was executed by plaintiff at the time of the foregoing 1978 transaction but was made payable to McCown, who had released decedent from the 1976 option agreement, rather than to decedent, who was to receive $100 under the terms of the 1978 agreement and who acknowledged receipt of that sum by the terms of the instrument. At the time of the 1978 agreement, McCown was representing decedent as an attorney and drafted the document but the record gives no indication that McCown received the money on behalf of the decedent or turned the money over to him. The first element of defendants’ affirmative defense theory is that at least a factual question exists as to whether decedent received any consideration for his grant of options in the 1978 agreement. If decedent received no consideration, then, as to him, that agreement merely constitutes an offer of options which can be withdrawn prior to acceptance. Hermes v. Wm. F. Meyer Co. (1978), 65 Ill. App. 3d 745, 749, 382 N.E.2d 841, 844.

The contract upon which suit was brought was entered into between decedent and plaintiff on December 24, 1983. It recited the existence of the 1978 option agreement whereby plaintiff had an option to purchase decedent’s stock for $8,000. The contract also stated: “Seller [decedent] has requested that said option agreement be converted into a firm agreement providing for the sale of said 300 shares of stock from Seller to Buyer, and Buyer is willing to honor said request.” The contract then stated the sale was to take effect upon the decedent’s death. Thus, for the first time, plaintiff was under an obligation to buy the shares. However, evidence was also introduced that earlier in December 1983 decedent had resigned as chairman of the Bank board of directors and, after the meeting where he resigned, he had a conversation with McCown and plaintiff. Evidence indicated the decedent told them he did not want to sell his Bank stock for $8,000 and it was worth more than that.

Citing Jones v. Dove (1943), 382 Ill. 445, 47 N.E.2d 447, and Kalman v. Bertacchi (1980), 80 Ill. App. 3d 530, 400 N.E.2d 507, defendants maintain the above conversation between the decedent, McCown and plaintiff could be deemed by a trier of fact to constitute a rescission of decedent’s option offer which existed if the 1978 agreement lacked consideration. The existence of a rescission of that “offer” is the second element of defendants’ theory that the 1983 contract should be rescinded.

Both Jones and Kalman concern the question of whether conduct of vendees under contracts for sales of real estate constituted rescission of those contracts barring them from obtaining specific performance of those contracts. In Jones the vendee’s conduct in leaving the premises and stating he could not make payments was held to constitute a rescission. In Kalman the failure of the vendee to make a substantial escrow payment required by a court-imposed settlement agreement between the parties was held not to constitute a rescission of the agreement as a matter of law. That court stated:

“Rescission or abandonment of a contract may be deduced from circumstances or from a course of conduct which clearly evidences an abandonment thereof. (Lasher v. Loeffler (1901), 190 Ill. 150, 60 N.E. 85; Jones v. Dove (1943), 382 Ill. 445, 47 N.E.2d 447.) To constitute abandonment of a contract for the sale of land by conduct, the acts relied on must be positive, unequivocal and inconsistent with the existence of the contract. Grossman v. Liedeker (Tex. Civ. App. 1947), 202 S.W.2d 267.” Kalman, 80 Ill. App. 3d at 533, 400 N.E.2d at 510.

Here, evidence indicated the decedent forcefully stated that he did not want to sell his stock for $8,000 and he did not think it was fair that he should have to do so. On the other hand, plaintiff emphasizes that the 1983 contract recites decedent requested the contract and points out that decedent benefited from the contract because, for the first time, plaintiff was required to buy decedent’s shares. The mental state of the decedent at this time was a question of fact for the trier of fact. However, if, as defendants contend, the decedent did not know the 1978 option agreement was merely an offer, a trier of fact could not find decedent positively and unequivocally withdrew that offer although much evidence indicates that he would have done so if he had believed the 1978 option agreement was actually only an offer. In any event, failure of defendants to establish that the decedent’s “offer,” arising from the 1978 agreement, was not withdrawn does not necessarily mean that, in entering into the 1983 agreement, plaintiff was accepting the offer of an option. The 1983 contract did not give plaintiff an option. Rather, it required plaintiff to buy the shares.

If the 1978 agreement was void as to the decedent for lack of consideration, some evidence indicates neither the decedent nor plaintiff thought that was so. The evidence of the conversation between decedent, McCown, and plaintiff wherein decedent stated he did not want to sell the shares for $8,000 is sufficient to justify a trier of fact to find the decedent would not have entered into the 1983 contract had he not thought the 1978 agreement was binding upon him. Plaintiff’s signing of the 1983 contract which recites the existence of a first option possessed by him to buy decedent’s Bank shares for $8,000 before sale could be made to anyone else is evidence of substance that plaintiff thought the 1978 option agreement was valid.

Accordingly, we reach the heart of the case. The third element of defendants’ theory is that if the decedent and plaintiff were mistaken as to the legal effect of the 1978 option agreement and the decedent would not have entered into the 1983 agreement if he had known this, the 1983 contract should be rescinded.

Citing Holbrook, plaintiff maintains any mutual mistake of the decedent and plaintiff as to the validity of plaintiff’s purported option to purchase the decedent’s shares was a mistake of law which is not recognized in Illinois law as a grounds for revocation. Holbrook is similar to the instant case in an important way. The mistake between parties to a contract there concerned a matter antecedent to the entry into the contract sought to be set aside. There, daughters of an intestate decedent by a first marriage met with the decedent’s widow and an attorney. They agreed that the widow should have one-third of his real estate in fee and the other two-thirds would be equally divided in fee between the daughters as his only heirs. Under the law in regard to succession of estate upon intestacy in force at that time, the -widow was only entitled to a life estate in one-third of the decedent’s realty. Contending that they entered into agreement with the widow based upon a mistaken belief that the widow’s statutory share was a one-third interest in fee, the daughters brought suit to set aside deeds made pursuant to the agreement. The supreme court affirmed a circuit court order dismissing the case for want of equity, holding no relief could be granted for a “mistake of law, pure and simple.” Holbrook, 304 Ill. at 585, 136 N.E. at 747.

Holbrook has been relied upon to deny relief from instruments entered into with a mistake as to the legal significance of that instrument in Joseph v. Lake Michigan Mortgage Co. (1982), 106 Ill. App. 3d 988, 436 N.E.2d 663, McCarthy v. McCarthy (1956), 9 Ill. App. 2d 462, 133 N.E.2d 763, and In re Estate of Mcllrath (1934), 276 Ill. App. 408. Those cases did not concern mistakes as to a matter antecedent to the agreement sought to be set aside as is the case in Holbrook and here.

Defendants rely upon several Illinois Supreme Court cases, the most recent of which is Barkhausen v. Continental Illinois National Bank & Trust Co. (1954), 3 Ill. 2d 254, 120 N.E.2d 649. There, beneficiaries of a land trust which had purchased real estate that was subject to a mortgage brought suit to obtain a declaration they were not personally liable for the indebtedness secured by the mortgage to which the property was subject. Their fear was that the action of the trustee, acting in that capacity, in assuming the covenants of the mortgagor of the mortgage had imposed liability upon the beneficiaries. The circuit court granted summary judgment for the plaintiffs. The appellate court reversed, holding that the power given the beneficiaries to manage the building subjected them to liability on the mortgage (Barkhausen v. Continental Illinois National Bank & Trust Co. (1953), 351 Ill. App. 388, 406-07, 115 N.E.2d 640, 648). The supreme court reversed the appellate court and affirmed the circuit court. Most of the opinion concerned a discussion of how all of the dealings between the parties in regard to the purchase of the property subject to the mortgage was conducted upon the basis that the beneficiaries would not be liable for deficiencies upon foreclosure of the mortgage.

Finally, the Barkhausen court addressed the beneficiaries’ request to have the assumption agreement executed by the trustee modified to make clear the intent of the parties and show that no personal liability of the beneficiaries was intended. The court agreed to do so and stated that the possibility that the mutual mistake of the parties in regard to the question of beneficiaries’ liability was one of law was no hindrance to ruling on this issue. We quote from the opinion at great length because this is the most recent statement of the supreme court on the issue of granting relief for mistakes which include elements of law. In addition, it gives a good review of the supreme court cases relied upon by defendants. In this respect, the Barkhausen court stated in a single paragraph:

“But, appellee says that this court is powerless to remedy the mistake, if there was one, because it was a mutual mistake of law. What constitutes a mistake of law or a mistake of fact is a subject upon which many conflicting and irreconcilable discourses have been written. In Illinois there are well-reasoned opinions that hold that relief is appropriate whether one views a mistake to be one of fact or one of law. Darst v. Lang, 367 Ill. 119[, 123-24, 10 N.E.2d 659, 662], is one that is peculiarly applicable. In that case aging parents deeded to their beloved daughter their farm, intending to reserve unto themselves a life estate but mistakenly failing to do so. This daughter after several years, upon learning of their failure to reserve their life estate, sought to deprive her father and mother of the proceeds of the premises which they had been enjoying uninterruptedly since the execution of the deed. In that proceeding reformation was sought because of a mistake, but the daughter urged the applicability of the rules that extrinsic evidence cannot be considered and that a court of equity is powerless to remedy a mistake of law. The court in rejecting those arguments used this language which we believe appropriately applies to the situation before us: ‘Relief is not barred in a proper case because the mistake is one of law. In Peter v. Peter, 343 Ill. 493[, 499-500, 175 N.E. 846, 849], we recently said: “The general rule that relief may not be had in equity against mistakes of law has by no means been invariably applied in this country nor in England. Where injustice would be done by its enforcement such injustice has been avoided by declaring that a mistake such as to the title to property or the existence of a certain particular right, though caused by an erroneous idea as to the legal effect of a deed, *** was really a mistake of fact and not strictly one of law and so did not constitute an insuperable bar to relief. *** The distinction between ignorance or mistake as to a general rule of law prescribing conduct and a mistake as to private rights or interests of a party to a written instrument has frequently been drawn. It has also been said that there is no established rule forbidding the giving of relief in any case to one injured by reason of a mistake of law, but that whenever it is clearly shown that parties in their dealings with each other have acted under a common mistake of law and the party injured thereby can be relieved without doing injury to others, equity will afford him redress.” In Reggio v. Warren, 207 Mass. 525, [534-35,] 93 N.E. 805[, 807], the court said, “So it has been said that the important question was not whether the mistake was one of law or of fact, but whether the particular mistake was such as a court of equity will correct, and this depends upon whether the case falls within the fundamental principle of equity that no one shall be allowed to enrich himself unjustly at the expense of another by reason of an innocent mistake of law or fact entertained by both parties.” ’ ” (Barkhausen, 3 Ill. 2d at 269-70, 120 N.E.2d at 657-65.)

The court then explained that in that case requiring the beneficiaries to be liable on the mortgage debt which encumbered the property would be grossly unfair.

In making our decision we must consider that leading texts on the law of contracts (Restatement (Second) of Contracts §151, comment b, at 384 (1981); 3 A. Corbin, Contracts §616 (1960); 13 S. Williston, Contracts §1581 (3d ed. 1970)) all set forth that great inroads have been made upon any rule that a contract cannot be rescinded for a mutual mistake merely because the mistake is one of law. Even in Holbrook the refusal to grant relief for a mutual mistake of law was limited to a mistake of law which was that “pure and simple.” (Holbrook, 304 Ill. at 585, 136 N.E. at 747, citing 2 J. Pomeroy, Equity Jurisprudence §842 (3d ed.).) Other sections of Pomeroy’s Equity Jurisprudence indicate what is meant by the phrase “pure and simple.” A mistake of that nature arises when a person enters into a contract not fully understanding the legal ramifications of the contract. (3 J. Pomeroy, Equity Jurisprudence §841 (5th ed. 1941).) However, where a person is mistaken “as to his own antecedent existing legal rights,” relief may be granted in regard to a subsequent contract he enters into in reliance on his mistaken belief as to antecedent rights. (3 J. Pomeroy, Equity Jurisprudence §849, at 308 (5th ed. 1941).) Moreover, the concept by which a mistake is one of law “pure and simple” is more likely to arise when the mistake is as to a general rule of law than when the mistake is as to an individual’s rights arising from a particular antecedent transaction. 3 J. Pomeroy, Equity Jurisprudence §849 (5th ed. 1941).

Here, as in Holbrook, the alleged mistake concerns an antecedent matter. There, the antecedent matter was the rights of a widow to an intestate estate. Here, the alleged mistake was as to the validity of the 1978 option. However, in Holbrook the antecedent question was entirely encompassed in the widow’s statutory intestate rights. Here, the mistake concerned the legal ramifications of a prior transaction. The mistake here could be a lack of knowledge of the necessity for consideration to support a contract or the mistake could be a lack of knowledge as to what happened to the proceeds of the $100 check. Thus, here the alleged mistake is more closely related to a prior particular transaction than that in Holbrook and more mixed with aspects of fact. Even under the “pure and simple” question of law criterion of Holbrook, the alleged mistake here appears to be of a nature which would permit it to be the basis of a suit for rescission.

When we also take into consideration the precedent of Barkhausen and the trend indicated in the texts we have cited, we conclude defendants have alleged a valid affirmative defense to plaintiff’s suit for specific performance. The matters properly before the court in regard to plaintiff’s motion for summary judgment do not show that plaintiff was entitled to judgment as a matter of law. Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.

We end with a cautionary note. The Barkhausen court indicated that the fairness of a transaction sought to be rescinded for mutual mistake bearing on a question of law is an important matter for consideration in such a suit. Fairness is also a consideration when rescission is sought for mutual mistake of fact independent of a legal question. (John Burns Construction Co. v. Interlake, Inc. (1982), 105 Ill. App. 3d 19, 433 N.E.2d 1126; Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 536 N.E.2d 194.) Defendants maintain that permitting plaintiff’s specific performance of the instant contract would work a grave injustice on them because when the 1983 contract was entered into and at the time of hearing, the value of the Bank stock was much higher than the $8,000 price determined by the option contract. The likelihood of this happening is inherent in every situation where one party grants another an option to purchase property in the future at a stated price.

For the reasons stated, we reverse the summary judgment entered for plaintiff and remand the cause to the circuit court of Douglas County for further proceedings.

Reversed and remanded.

LUND, P.J., and STEIGMANN, J., concur.