text:
    PAUL J. ARRA et al., Plaintiffs-Appellants, v. FIRST STATE BANK AND TRUST COMPANY OF FRANKLIN PARK, Defendant-Appellee.
    First District (4th Division)
    No. 1 — 92—3529
    Opinion filed July 29, 1993.

      Richard M. Kates, of Chicago, for appellants.
    Carey, Filter, White & Boland, of Chicago (Daniel R. Harper and Edmund P. Boland, of counsel), for appellee.
   JUSTICE HOFFMAN

delivered the opinion of the court:

In July 1986, a debtor-creditor relationship existed between the plaintiffs, Paul J. Arra and Mary Ann Arra, and the defendant, the First State Bank and Trust Company of Franklin Park (now known as Affiliated Bank/Franklin Park). Under the notes and other instruments evidencing the relationship, the defendant obtained both a mortgage interest in the plaintiffs’ home located in Glen Ellyn, Illinois (the property), and a collateral assignment of the beneficial interest of the land trust which held legal title to the property. Among other provisions, the collateral instruments provided that, in the event of a default, the defendant could recover all reasonable expenses incurred by it in exercising its rights including attorney fees and court costs.

The plaintiffs defaulted under the terms of the notes because they did not pay the installments due. As a consequence, the defendant filed a foreclosure proceeding in the circuit court of Du Page County on July 15, 1986. Additionally, on October 10, 1986, the defendant gave notice of a public sale of the beneficial interest of the trust holding title to the property pursuant to section 9 — 504 of the Uniform Commercial Code (the UCC sale) (Ill. Rev. Stat. 1985, ch. 26, par. 9— 504). The UCC sale was scheduled for November 20,1986.

In addition to the defendant’s collateral interests, the property was also encumbered by a Federal tax lien in favor of the Internal Revenue Service.

On November 20, 1986, prior to the scheduled UCC sale, the plaintiffs filed for protection under chapter 11 of the Bankruptcy Code (11 U.S.C. §1101 et seq. (1982)) in the United States Bankruptcy Court for the Northern District of Illinois, Eastern Division. As a result, the foreclosure action and the UCC sale were automatically stayed. See 11 U.S.C. §362 (1982).

In 1989, while the bankruptcy proceeding was pending, the plaintiffs litigated their dispute with the Internal Revenue Service to a conclusion with a finding that no tax was owed.

On November 21, 1989, an order was entered in the bankruptcy proceeding modifying the automatic stay to permit the defendant to enforce its collateral rights in the property after January 22, 1990. On January 22, 1990, the plaintiffs filed an emergency motion before the bankruptcy court requesting that the stay be reinstated. In support of their motion they alleged, inter alia, that they had not yet received a commitment for refinancing of the property which would allow them to pay off the defendant and that the defendant’s payoff figure tendered to the plaintiffs included $14,000 for attorney fees which were being contested. At the hearing on the plaintiffs’ emergency motion, the plaintiffs’ attorney informed the bankruptcy judge in the presence of the defendant’s attorney that the attorney fees included in the payoff figure were in question and that if the plaintiffs had to pay the fees to obtain refinancing they would do so and then sue the defendant. On January 23, 1990, the judge in the bankruptcy proceeding entered an order on the plaintiffs’ emergency motion granting a final extension of the stay until February 22,1990.

The plaintiffs obtained refinancing of the property and scheduled a loan closing for the afternoon of February 22, 1990. In preparation for the loan closing, the plaintiffs secured an updated payoff statement from the defendant on that date which included attorney fees of $15,409.19. At 10 a.m., on the samé day, the plaintiffs’ attorney secured the dismissal of the bankruptcy proceeding. In the afternoon, the plaintiffs closed the refinancing loan and from its proceeds paid the defendant the full sum reflected in the payoff statement including the attorney fees.

The plaintiffs demanded a return of a portion of the attorney fees paid to the defendant. When the defendant refused, the plaintiffs filed the instant action. Although in two counts, the plaintiffs’ amended complaint sought a judgment against the defendant for the attorney fees paid in excess of reasonable charges.

The defendant answered the plaintiffs’ amended complaint, filed two affirmative defenses, and moved for summary judgment. The defendant argued that the plaintiffs’ payment of the demanded sums for attorney fees was not made under duress but was a voluntary payment, and, by failing to raise their objection to the fees demanded in either the bankruptcy proceeding or the foreclosure proceeding, the plaintiffs waived any cause of action for a return of the attorney fees.

The trial court granted the defendant’s motion for summary judgment on both counts of the plaintiffs’ amended complaint and the plaintiffs now appeal. For the reasons which follow, we reverse the judgment of the trial court and remand this action for further proceedings.

Because this case is on appeal from the entry of summary judgment, the issue on review is the same as that before the trial court: namely, whether the evidentiary material before the trial court, when. viewed in a light most favorable to the plaintiff, establishes the absence of a genuine issue of material fact and the defendant’s entitlement to judgment as a matter of law. Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867; Murphy v. Urso (1981), 88 Ill. 2d 444, 430 N.E.2d 1079; Kolakowski v. Voris (1980), 83 Ill. 2d 388, 415 N.E.2d 397; Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.

As a preliminary matter, the defendant points to an apparent conflict in this district as to the appropriate standard of review in cases involving an appeal from the entry of summary judgment. To be sure, there are a group of cases which suggest that an abuse of discretion standard should be applied. (See, e.g., Choi v. Commonwealth Edison Co. (1991), 217 Ill. App. 3d 952, 578 N.E.2d 33; Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 475 N.E.2d 549.) We, however, follow the line of cases which holds that whether summary judgment is appropriate is a question of law to be determined by a de novo review independent of the trial court’s reasoning on the issues presented. (Demos v. National Bank (1991), 209 Ill. App. 3d 655, 567 N.E.2d 1083; Hatton v. Money Lenders & Associates, Ltd. (1984), 127 Ill. App. 3d 577, 469 N.E.2d 360.) If, from a review of the evidentiary material before the trial court, a reviewing court determines that a material issue of fact exists or that summary judgment was based upon an erroneous interpretation of the law, a reversal is warranted. Reed v. Fleming (1985), 132 Ill. App. 3d 722, 477 N.E.2d 733; Warren v. Lemay (1986), 144 Ill. App. 3d 107, 494 N.E.2d 206.

The resolution of this appeal rests upon the application of the voluntary-payment doctrine to the facts of this case. Our supreme court articulated this doctrine in Illinois Glass Co. v. Chicago Telephone Co. (1908), 234 Ill. 535, 541, 85 N.E. 200, 201:

“It has been a universally recognized rule that money voluntarily paid under a claim of right to the payment and with knowledge of the facts by the person making the payment cannot be recovered back on the ground that the claim was illegal. It has been deemed necessary not only to show that the claim asserted was unlawful, but also that the payment was not voluntary; that there was some necessity which amounted to compulsion, and payment was made under the influence of such compulsion.”

The court reaffirmed the voluntary-payment doctrine in Geary v. Dominick’s Finer Foods, Inc. (1989), 129 Ill. 2d 389, 393, 544 N.E.2d 344, 346, and Getto v. City of Chicago (1981), 86 Ill. 2d 39, 48-49, 426 N.E.2d 844, 849.

In this case, there is no question that the defendant demanded payment of attorney fees under a claim of right and that the plaintiffs paid the fees with sufficient knowledge of the source of the defendant’s claim and the quantum of legal services incurred to form a conclusion as to the propriety of the amount demanded. But the fact that payment was demanded under a claim of right and paid with knowledge of the relevant facts does not mandate the application of the voluntary-payment doctrine to bar the plaintiffs’ right to recover the sums paid for attorney fees in excess of reasonable fees. The voluntariness of a payment is a prerequisite to the application of the doctrine. (Isenstein v. Rosewell (1985), 106 Ill. 2d 301, 478 N.E.2d 330.) If a payment is made after a protest (Isenstein, 106 Ill. 2d at 309), or as a result of compulsion or duress (Getto, 86 Ill. 2d at 51-52), it is stripped of its voluntary character.

The facts of this case reveal that the plaintiffs objected to the amount the defendant demanded for attorney fees in both the bankruptcy proceeding on January 22, 1990, and in the arguments of their attorney in the hearing of the emergency motion on the same day. In the presence of the defendant’s counsel, the plaintiffs’ attorney informed the bankruptcy judge: “[i]f we have to pay the attorney fees, we will pay them. We will turn around, and we will sue them.” The defendant argues that the plaintiffs did not pay the disputed fees under protest because after it issued the revised payoff statement on February 22, 1990, the plaintiffs did not protest prior to payment later that day. The defendant further contends that not only did the plaintiffs have an opportunity to again protest before the bankruptcy judge in the hearing on that day, but that when the plaintiffs’ payment was tendered in the afternoon of the same day, it was made under a cover letter which stated: “[tjhese checks represent payment in full on said proceeds letter.”

The notes and security instruments which govern the contractual relationship of the parties do not contain any provisions for paying under protest. Our research fails to reveal any cases in this jurisdiction which address the adequacy of a protest in the absence of a designated procedure. We are of the opinion that when the payor objects or protests in some manner, the question of whether the objection was adequate or whether the payor waived the objection prior to payment is peculiarly a question for the trier of fact to determine when considering all of the facts and circumstances of the case. As such, it would be error to hold that as a matter of law the plaintiffs in this case did not pay the attorney fees demanded by the defendant under protest.

Even if the plaintiffs failed to pay the defendant under protest, the voluntary-payment doctrine would not bar their right of action if the payment was made under duress. “[Plaintiffs have always been allowed to use duress as an exception to the doctrine, regardless of whether they failed to protest ***.” Geary, 129 Ill. 2d at 407.

In determining whether duress motivated the payment of a demanded sum, attention must be given to the nature of the asset involved and the consequences of nonpayment. If the asset is a necessity and the consequences of nonpayment would adversely affect the asset, a case might be made for duress as a motivating factor in payment. (See Geary, 129 Ill. 2d at 398.) The asset in this case was the plaintiffs’ home, which was certainly a necessity. The effect of nonpayment of the sums demanded by the defendant would have been that the defendant would not have released its liens upon the property, the refinancing loan would not have closed, the bankruptcy stay would have expired on February 22, 1990, and the defendant would have been at liberty to proceed with its foreclosure action and, more threatening, its UCC sale. The plaintiffs could have litigated the fee issue in the bankruptcy proceeding but they would have been required to do so without the protection of the statutory stay because the bankruptcy judge granted a final extension of the stay in the order of January 22, 1990. The plaintiffs also could have litigated the issue in the foreclosure proceeding but only after the bankruptcy stay was lifted. In either case, the property would have been at risk.

When a person, to prevent injury to his property, is required to make a payment of money to which the payee is not entitled and no adequate opportunity is afforded to the payor to resist the demand, the payment is made under duress and can be recovered. (Schlossberg v. E.L. Trendel & Associates, Inc. (1978), 63 Ill. App. 3d 939, 380 N.E.2d 950.) The questions of whether duress was actually present and whether remedies alternative to a payment of the demanded sum were adequate in light of the circumstances of the transaction are questions of fact for the trier of fact to resolve. Schlossberg, 63 Ill. App. 3d 939, 380 N.E.2d 950.

Our review of the evidentiary material that was before the trial court, when construed in a light most favorable to the plaintiffs, leads us to the conclusion that genuine issues of material fact exist as to whether the plaintiffs’ protest of the sums demanded by the defendant for attorney fees was adequate and whether the plaintiffs paid those sums under duress. As such, we hold that the trial court erred when it granted summary judgment in the defendant’s favor on counts I and II of the plaintiffs’ amended complaint.

For the foregoing reasons, we reverse the judgment of the circuit court of Cook County and remand this cause for further proceedings.

Reversed and remanded.

JOHNSON and CAHILL, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COUSINS

license: Public Domain

text:
    ANTHONY CALIENDO et al., Plaintiffs-Appellants, v. LEROY MARTIN, Superintendent of Police, et al., Defendants-Appellees.
    First District (5th Division)
    No. 1 — 91—2741
    Opinion filed July 30, 1993.

      Richard S. Jolovec & Associates, Ltd., of Chicago (Donna Baffoe McDonald, of counsel), for appellants.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Bobbie McGee Gregg, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE COUSINS

delivered the opinion of the court:

This appeal involves the review of an administrative determination made by the police board of the City of Chicago (the Board). On September 10, 1990, the Board determined that the plaintiffs, Anthony Caliendo (Caliendo) and Arthur Secor (Secor), were guilty of violating Chicago police department rules and ordered that Caliendo and Secor be discharged from their positions as police officers with the Chicago police department. The plaintiffs petitioned for administrative review in the circuit court on October 12, 1990. A hearing was held and on July 25, 1991, the circuit court affirmed the findings and decision of the Board.

Plaintiffs raise the following issues on appeal: (1) whether the Board’s determination that plaintiffs violated police department rules by accepting bribes is against the manifest weight of the evidence; (2) whether the Board’s decision to impose the sanction of discharge was unreasonable and arbitrary, or unrelated to the requirements of service; and (3) whether plaintiffs were deprived of any of their due process rights so as to render the decision of the Board fundamentally unfair.

We affirm.

Background

On August 16, 1984, the superintendent of police filed charges against Caliendo and Secor for violating the following Chicago police department rules:

Rule 2: Any action or conduct which impedes the department’s efforts to achieve its policy and goals or brings discredit upon the department.
Rule 3: Any conduct or action taken to use the official position for personal gain or influence.
Rule 21: Failure to report promptly to the department any information concerning any crime or other unlawful action.
Rule 48: Soliciting or accepting any gratuity, or soliciting or accepting a gift, present, reward or any other thing of value for any service rendered as a department member, or as a condition for the rendering of such service, or as a condition for not performing sworn duties.

The complaint indicated that Caliendo and Secor were accused of accepting bribes instead of issuing traffic citations on two separate occasions during May of 1984. Commencing March 23, 1990, five days of hearings were held before a hearing officer on the charges against Caliendo and Secor.

THE MAY 7,1984, INCIDENT

Officer Brian Smith (Smith) of the Internal Affairs Division of the Chicago police department testified that on May 7, 1984, he was assigned to conduct an undercover investigation of Caliendo and Secor to determine whether they would accept or solicit a bribe in exchange for failing to issue a traffic citation. Smith testified that on May 7, he was driving an unmarked station wagon near the intersection of Clark and Fullerton when he spotted the plaintiffs in a marked patrol car. He deliberately made an illegal U-tum in front of Caliendo and Secor, and they signalled him to stop his car.

Smith got out of his car, and Secor stepped out of the patrol car. Secor told Smith that he had committed two traffic violations: making an illegal U-tum and failing to have a Chicago sticker on his car. Secor took Smith’s driver’s license and got back into the squad car.

Smith testified that he walked over to the squad car, leaned into the window, and had the following conversation with Secor:

“OFFICER SMITH: What can we do?
SECOR: Whatever you want to do.
OFFICER SMITH: Whatever you want to do is all right with me.
SECOR: Whatever you want to do just be discreet.
OFFICER SMITH: Would $20 be enough?
SECOR: Whatever. Just be discreet.”

Smith testified that he then squatted down near the driver’s door, inserted his arm through the window of the police car and dropped $20 into Secor’s lap. The money was in plain view and neither Secor nor Caliendo rejected it. Instead, Secor returned Smith’s license to him without issuing any traffic citations.

In his defense, Secor testified that he generally did not issue a traffic citation to every motorist he stopped for a traffic violation. He stated that out of approximately 150 motorists he stopped per month, he gave a pass to about 110 motorists. He also testified that he considered a U-tum to be a minor violation.

Secor testified that on May 7, he and Caliendo stopped Smith for making a U-tum. Caliendo did not get out of the squad car on this occasion or talk with Smith. Secor exited the squad car and engaged in a conversation with Smith, who explained that he was lost and asked for directions to the outer drive.

After Secor checked Smith’s driver’s license and found that everything appeared to be in order, he gave Smith directions and returned to his squad car. At that point Smith walked back to the squad car, stood next to it and said “I just want to really thank you for giving me directions. I really appreciated it.” Secor responded by saying, “Well just be on your way and just be careful, you know watch your driving.” At this point, Smith returned to his vehicle and drove away.

Secor testified that Smith did not kneel next to the squad car and did not reach his hand inside the car. Secor testified that Smith did not drop money into the car. Secor denied ever asking Smith for money and stated that he never found any money on the floor, seat, or anywhere in the car.

Caliendo testified that on May 7, 1984, he never talked with Smith and did not get out of the squad car. He testified that he never saw any money dropped into the car.

THE MAY 18,1984, INCIDENT

Officer Marion Williams (Williams) testified that on May 18, 1984, the Chicago police department assigned him to the undercover investigation of Secor and Caliendo. Williams testified that on the evening of May 18, he was driving an unmarked car and wearing a concealed tape recorder. He located the plaintiffs’ patrol car near the intersection of Clark and Fullerton and made an illegal U-turn in front of Secor and Caliendo’s squad car. Secor and Caliendo signalled for Williams to stop. As Williams got out of his car, Caliendo and Secor both emerged from the squad car. Secor briefly scanned Officer Williams’ vehicle for danger and then returned to the squad car. After Caliendo informed Williams that he had made an improper U-turn, the following conversation ensued:

“OFFICER WILLIAMS: I’m sorry. How about giving me a pass?
CALIENDO: Let me see your driver’s license. You’re obstructing traffic.
* * *
CALIENDO: I could give you four tickets.
OFFICER WILLIAMS: Please don’t give me four tickets. Maybe we can take care of things out here. If you would, I would appreciate what you could do for me.
CALIENDO: Okay, have a seat in the car and I will be right back with you.”

Williams got back in his car and Caliendo returned to the squad car. After a few minutes, Caliendo approached Williams, handed him a piece of paper and told him to pretend to write on it.

Williams told Caliendo that he had a $10 bill and a $20 bill and asked, “What do you want?” Williams had his wallet in his hand. Caliendo reached into the wallet and took the $20 bill. Williams testified that he had the following conversation with Caliendo:

“OFFICER WILLIAMS: Do you want 10, also?
CALIENDO: Well, if you want me to have it. If you want to, it’s all right with me.”

Caliendo reached into the wallet, took the $10 bill, and returned to his squad car. Williams drove away.

Immediately after leaving Caliendo and Secor, Williams met with evidence technician Frank Kenny. Officer Kenny removed the hidden tape recorder and took possession of the recording of the conversation between Williams and Caliendo.

Secor testified that on May 18, he and Caliendo stopped Williams after he made a U-tum. Caliendo got out to speak with Williams. Secor exited the police vehicle to check Williams’ vehicle and then returned to the squad car. Secor never had a conversation with Williams and did not exit the squad car again. Secor testified that he recognized Caliendo’s voice on the tape recording.

Caliendo gave the following account of events. After stopping Williams for making a U-tum, both Caliendo and Secor exited the police vehicle. Secor checked Williams’ car and then returned to the police vehicle. Caliendo testified that the area of the alleged incident had heavy foot traffic and there was an outdoor cafe approximately six to eight feet from the curb.

Caliendo engaged in a conversation with Williams and Williams told him that he was unfamiliar with the area and was simply trying to get back to his home on the south side. Caliendo took Williams’ driver’s license and told him to have a seat in his car. Caliendo then returned to his squad car with the license. Caliendo testified that he tried to run Williams’ license on the computer, but was unsuccessful because the computers were down.

Caliendo then went back to Williams’ car and returned his license. Caliendo testified that he did not issue Williams a ticket, but did ask him to sign a miscellaneous paper so that it looked like Williams had received a ticket. Caliendo testified that he did this because many people were watching the incident and he did not want them to think that he let everyone go.

Caliendo testified that he had his radio on while he was talking to Williams and the radio was about six inches from his ear. He testified that additional noise was generated by traffic and pedestrians as well. Caliendo testified that due to the radio and other noise, he was unable to hear everything that Williams said to him. He did not hear Williams offer him a $20 bill or a $10 bill, and he did not take any money from Williams.

On cross-examination, Caliendo admitted that he recognized his voice on the tape. He also testified that he heard Williams offer money on the tape, but maintains that Williams did not offer him money during the traffic stop.

THE DECISION

On September 10, 1990, the Board issued its findings and decision. Caliendo and Secor were found guilty of all charges, and the Board ordered them discharged from the department.

On or about October 12, 1990, Caliendo and Secor attempted to file a motion for reconsideration before the Board. They petitioned the circuit court for administrative review the same day. On November 19, 1991, the superintendent of police filed a motion to strike various allegations from plaintiffs’ complaint for administrative review as well as certain exhibits attached thereto, including the motion to reconsider. On May 17, 1991, after hearing arguments of counsel, the circuit court granted the motion to strike in part and reserved ruling on certain allegations. Plaintiffs were given leave to file additional authority with respect to the points that the court reserved ruling on, but plaintiffs ultimately declined to do so.

On July 25, 1991, the circuit court entered an order affirming the findings and decision of the Board. Caliendo and Secor filed a timely notice of appeal from that order.

Opinion

The scope of review regarding an administrative agency’s decision to discharge a public employee requires a two-step analysis. First, the court must determine if the agency’s findings of fact are contrary to the manifest weight of the evidence. (Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 105.) Second, it must determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge exists. (Walsh, 96 Ill. 2d at 105.) An administrative tribunal’s finding of “cause” for discharge commands the reviewing court’s deference and will not be overturned unless it is arbitrary and unreasonable, or unrelated to the requirements of the service. Launius v. Board, of Fire & Police Commissioners (1992), 151 Ill. 2d 419, 435; Walsh, 96 Ill. 2d at 105-06.

I

The first issue before this court is whether the Board’s determination that Secor and Caliendo accepted bribes on two occasions in 1984 is against the manifest weight of the evidence. Factual findings made by an administrative tribunal are deemed prima facie true and correct. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110; Launius, 151 Ill. 2d at 427.) In reviewing the findings of an administrative agency, it is not the function of this court to resolve factual inconsistencies or to reweigh the evidence, but merely to determine whether the findings are against the manifest weight of the evidence. (Launius, 151 Ill. 2d at 427-28; Collura v. Board of Police Commissioners (1986), 113 Ill. 2d 361, 372-73.) “In order for a court of review to find that an agency’s decision is against the manifest weight of the evidence ***, the court must be able to conclude that ‘all reasonable and unbiased persons, acting within the limits prescribed by the law and drawing all inferences in support of the finding, would agree that the finding is erroneous,’ [citation] and that the opposite conclusion is clearly evident.” (O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 653.) The fact that an opposite conclusion might be reasonable or that this court might have reached a different conclusion is not sufficient to set aside the agency’s decision. (O’Boyle, 119 Ill. App. 3d at 653.) If there is anything in the record which fairly supports the conclusions of the agency, the decision is not against the manifest weight of the evidence and must be sustained on judicial review. O’Boyle, 119 Ill. App. 3d at 653.

Plaintiffs argue that no competent evidence was presented which fairly supports the Board’s conclusion that they were guilty of soliciting or accepting bribes. With respect to the alleged bribery incident of May 7, 1984, plaintiffs argue that the only evidence against them was the testimony of Smith which was not credible because (1) it was not corroborated by any other witness or any other tangible evidence, such as a tape recording of the conversation or the introduction of marked bribe money, and (2) because after six years, Smith could not recall whether there was any foot traffic passing by, whether the amount of the bribe was $20 or $25, or whether Secor was later searched for the bribe money.

Plaintiffs’ argument goes to Smith’s credibility as a witness. The weight to be given to the evidence and the credibility of witnesses is within the province of the Board. (Jackson v. Board of Review (1985), 105 Ill. 2d 501, 513.) Plaintiffs were allowed to fully develop the inconsistencies of Smith’s testimony on cross-examination and had the opportunity to argue that the testimony was not credible during closing argument. The Board was well apprised of the complained-of inconsistencies in Smith’s testimony and nonetheless found him to be a credible witness. It is not the function of this court to reweigh the evidence presented to an administrative tribunal, but instead to determine whether the findings are supported by some evidence. (Collura, 113 Ill. 2d at 272-73.) In this case, Smith testified that Caliendo and Secor pulled him over for making a U-turn and Smith asked what could be done. In response, Se-cor told him to be discreet and accepted his offer of $20. This testimony was sufficient to support the Board’s decision. Accordingly, we conclude that the Board’s determination that Caliendo and Secor participated in a bribery transaction on May 7, 1984, is not against the manifest weight of the evidence.

With respect to the alleged bribery incident on May 18, 1984, plaintiffs argue that the Board’s determination is against the manifest weight of the evidence because the only evidence against them consisted of an inadmissable copy of a tape recording and the incompetent testimony of Williams.

Initially, plaintiffs maintain that the tape was inadmissible because the original was lost and no chain of custody could be established for the copy presented at the hearing. Although the record indicates that the tape itself was admitted into evidence by the Board, the record also indicates that the contents of the tape were not played at the hearing. We do not find the admission of the tape itself to be error. Assuming arguendo that the admission of the tape was improper, the error was harmless because even without the tape, the evidence was sufficient to sustain the decision of the Board. Williams testified that on May 18, 1984, Caliendo accepted a $30 bribe from him in lieu of issuing a traffic ticket, and his testimony was sufficient to sustain the Board’s decision.

Plaintiffs next contend that Williams' testimony should have been disregarded by the Board because he had no independent recollection of the conversation which took place on May 18, 1984, before he listened to the tape recording which possessed no indicia of reliability. In addition, plaintiffs claim that Officer Williams’ testimony was not credible because he was unable to identify Caliendo at the earlier criminal trial, and he mistakenly testified that Caliendo was driving the squad car.

The fact that Williams refreshed his recollection with a tape which is alleged to be unreliable does not affect the admissibility of his testimony; it goes only to his credibility as a witness. (Corrales v. American Cab Co. (1988), 170 Ill. App. 3d 907, 911.) Likewise, plaintiffs’ allegations concerning Williams’ ability to identify Caliendo also go to his credibility. It is the function of the Board to assess the credibility of the witnesses and this court will not reweigh the evidence. (Jackson, 105 Ill. 2d at 513.) We conclude that the Board’s determination that Caliendo and Secor engaged in an act of bribery on May 18, 1984, is not against the manifest weight of the evidence.

II

Next, we must determine whether the Board’s decision that there was cause to discharge the plaintiffs was arbitrary and unreasonable or unrelated to the requirements of service. (See Walsh, 96 Ill. 2d at 105.) “Cause” for discharge has been defined as “some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position.” Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 551.

A single finding of a violation of a single department rule may be sufficient grounds for discharge. (See, e.g., Kinter v. Board of Police & Fire Commissioners (1990), 194 Ill. App. 3d 126, 134; Rispoli v. Police Board (1989), 188 Ill. App. 3d 622, 638.) In this case, the police board imposed the sanction of discharge upon finding that plaintiffs’ conduct violated four department rules: (1) bringing discredit on the police department; (2) using official position for personal gain; (3) failing to report promptly any crime; and (4) soliciting or receiving a gratuity. Moreover, discharge is an appropriate sanction when a police officer’s misconduct manifests a disrespect for the law and tends to undermine public confidence in the honesty and integrity of the police force. (Kappel v. Police Board (1991), 220 Ill. App. 3d 580, 592.) Surely, engaging in bribery manifests a disrespect for the law and tends to undermine public confidence in the police force.

Plaintiffs do not argue that the sanction of discharge is unreasonable or arbitrary based solely upon the facts of their case, however. Instead, plaintiffs argue that when their case is compared to other cases in which police officers were found guilty of violating police rules, it becomes apparent that they were subject to arbitrary and unreasonable treatment.

In their petition for administrative review before the circuit court, plaintiffs alleged that the Board’s decision to discharge them was arbitrary and unreasonable because other officers who engaged in similar conduct in unrelated cases (the Wagon Men) were merely suspended. Plaintiffs attached a report of proceedings from one of the Wagon Men decisions to their complaint. This evidence was not presented to the Board. The trial court determined that evidence of other unrelated Board cases was irrelevant and struck all allegations and submissions relating thereto. Plaintiffs contend that the circuit court’s refusal to consider evidence of sanctions given in other Board cases or to remand the case to the Board for further hearing on the matter constituted an abuse of discretion. We disagree.

Judicial review of administrative decisions is restricted to the record compiled by the agency. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110; Crabtree v. Illinois Department of Agriculture (1989), 128 Ill. 2d 510, 517.) No new or additional evidence shall be heard by the court. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110; Crabtree v. Illinois Department of Agriculture (1989), 128 Ill. 2d 510, 517.) Since the evidence of sanctions given in other Board cases did not constitute part of the administrative record before the circuit court, the court was precluded from considering this evidence.

Plaintiffs argue that the Board’s decisions in the Wagon Men cases were not available until after the conclusion of their hearing and, therefore, could not have been presented to the Board. Plaintiffs assert that the Wagon Men cases constituted new evidence and the trial court should have remanded the case to the Board for further proceedings.

The question of whether to remand a case to an administrative tribunal for further hearing is a matter which lies within the discretion of the trial court. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 111(7); Salvation Army v. Department of Revenue (1988), 170 Ill. App. 3d 336, 346.) Section 3 — 111 of the Code of Civil Procedure provides in relevant part:

“§3 — IllPowers of circuit court, (a) The Circuit Court has power:
* * *
(7) where a hearing has been held by the agency, to remand for the purpose of taking additional evidence when from the state of the record of the administrative agency or otherwise it shall appear that such action is just. However, no remandment shall be made on the ground of newly discovered evidence unless it appears to the satisfaction of the court that such evidence has in fact been discovered subsequent to the termination of the proceedings before the administrative agency and that it could not by the exercise of reasonable diligence have been obtained at such proceedings; and that such evidence is material to the issues and is not cumulative.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 111.)

Under the statute, newly discovered evidence does not warrant remandment if it is not material. Evidence is material where it is relevant and goes to substantial matters in dispute. (Wolfe v. Board of Education (1988), 171 Ill. App. 3d 208, 212.) In the case at bar, the trial court did not remand the case to the Board for further proceedings; the trial court found that the evidence of unrelated incidents did not provide a valid basis for comparison and, therefore, was irrelevant.

Relying on Wilson v. Board of Fire & Police Commissioners (1990), 205 Ill. App. 3d 984, plaintiffs argue that the trial court’s conclusion that the other Board decisions were irrelevant was erroneous. In Wilson, two police officers were found guilty of violating police department rules and regulations. Although the violations arose from the same incident, separate hearings were held. One police officer was suspended for 30 days and the other was discharged. Both parties petitioned for administrative review in the circuit court and again separate hearings were held. The decisions of the Board were upheld in both instances.

On review, the appellate court found that as the events surrounding the two cases were completely related there appeared to be a gross disparity between the two sanctions. (Wilson, 205 Ill. App. 3d at 992.) Therefore, the appellate court remanded the case for a new hearing on the appropriateness of the ordered sanctions. (Wilson, 205 Ill. App. 3d at 992.) Wilson did not involve a comparison of the complaining police officers’ sanctions to the sanctions given to other police officers in unrelated incidents. Therefore, Wilson is inapposite to the case at bar.

In Launius, our supreme court recognized that “[a]n administrative tribunal’s finding of ‘cause’ for discharge may be considered arbitrary and unreasonable when it is compared to the discipline imposed in a completely related case” like Wilson (emphasis added) (Launius, 151 Ill. 2d at 441-42), but the court emphasized that cause for discharge can be found regardless of whether other employees have been disciplined differently. (Launius, 151 Ill. 2d at 442; see also Jones v. Civil Service Comm’n (1979), 80 Ill. App. 3d 74, 76.) In Launius, two police officers were disciplined for misconduct arising during a flood. The defendant, Launius, was discharged after leaving his post to check on his family after being denied permission to do so. Launius presented evidence to the police board that another officer, Czyzewski, only received a suspension when he refused to come to work on an off-duty day after his superior ordered him to report for duty because of the emergency conditions created by the flood. The supreme court held that the facts of the two cases were not sufficiently related to conclude that the board’s decision to discharge Launius was arbitrary and unreasonable. Launius, 151 Ill. 2d at 442.

In Launius, the same surrounding circumstances, the emergency conditions created by a flood, gave rise to the officers’ misconduct. Yet the supreme court determined that the facts were not similar enough to conclude that the imposition of different sanctions under these circumstances was arbitrary and unreasonable. In the case at bar, the decisions that plaintiffs submitted to the trial court did not involve the same surrounding circumstances. The bribes accepted in the Wagon Men cases took place during different times under completely unrelated circumstances. Furthermore, the Wagon Men pled guilty to criminal charges instead of going to trial like the plaintiffs. In light of the complete lack of similarity between plaintiffs’ case and the Wagon Men cases presented to the trial court, we cannot say that the trial court abused its discretion in concluding that the evidence was irrelevant and, therefore, did not warrant remand.

Ill

Plaintiffs next contend that they were deprived of their due process right to an impartial tribunal. Plaintiffs assert that the Board was biased against them because: (1) the members of the Board, the hearing officer, and the assistant corporation counsel who presented the police department’s case against plaintiffs are all “connected to the City of Chicago,” and (2) because “the hearing officer made a determination of their guilt at the conclusion of the City’s case.” Plaintiffs point to the following exchange between the trial court and counsel in support of their contention that the hearing officer made a determination of guilt before they were allowed to present their case:

“HEARING OFFICER HALL: I am going to deny your motion to reconsider. For the record, so you will have a basis for appeal my belief is that Marion Williams who is a party to the tape, has testified and corroborated what is on the tape; and therefore, because this is an administrative review matter, it is admissible as evidence against Officers Caliendo and Secor.
Now, the Department has rested in this matter and you have not, is that correct?
MR. JALOVEC: That’s correct. I’m going to call some witnesses, Mr. Hall.”

Plaintiffs’ argument fails to set forth a genuine claim of partiality. Due process does guarantee the right to an impartial tribunal in an administrative proceeding. (Collura, 113 Ill. 2d at 369.) However, it is not enough to complain merely that investigator, prosecutor, and adjudicator are all institutionally connected. (See Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42, 54-55.) This same complaint could be made in the majority of agency cases. Rather, plaintiffs must “ ‘overcome á presumption of honesty and integrity in those serving as adjudicators’ ” by showing in the record that the administrative proceeding “ ‘was either tainted by dishonesty or contained an unacceptable risk of bias.’ ” Scott, 84 Ill. 2d at 55-56, quoting Martin-Trigona v. Underwood (7th Cir. 1975), 529 F.2d 33, 37.

Plaintiffs attempt to make such a showing by pointing to the hearing officer’s statement that he was providing his reasons for overruling plaintiffs’ objection to the admissibility of the tape recording “so [plaintiffs] would have a basis for appeal.” This statement, however, does not demonstrate either bias or that the hearing officer had already decided the case against plaintiffs without hearing all the evidence. Although judges, as well as hearing officers, need not state a reason for their evidentiary rulings, they often do so to give a reviewing court a more complete record. It is entirely proper for the trier of fact to state the basis of its evidentiary rulings (South Park Commissioners v. Ayer (1910), 245 Ill. 402, 410), which is precisely what the hearing officer did in this case. We conclude that plaintiffs were not deprived of any due process rights by the Board during the hearing.

IV

Finally, plaintiffs argue without citation to any authority that their due process rights were violated because the police department suspended them without pay and did not interview them prior to suspending them.

Due process is satisfied when a party receives notice of the charges against him, a hearing before an impartial tribunal and the opportunity to defend himself before the tribunal. (Sheehan v. Board of Fire & Police Commissioners (1987), 158 Ill. App. 3d 275.) Plaintiffs were not denied any of these fundamental rights during the proceedings before the Board; consequently, plaintiffs were not deprived of due process.

For all of the foregoing reasons, we affirm the judgment of the circuit court upholding the Board’s decision to discharge the plaintiffs.

Affirmed.

GORDON, P.J., and MURRAY, J., concur.


author: JUSTICE McNULTY

text:
    OGNJEN MIMICA, Plaintiff-Appellee, v. AREA INTERSTATE TRUCKING, INC., Defendant-Appellant.
    First District (5th Division)
    No. 1 — 92—2508
    Opinion filed July 30, 1993.

      Fagel & Haber, of Chicago (Steven J. Teplinsky and Alvin D. Meyers, of counsel), for appellant.
    Greenberger, Krauss & Tenenbaum, Chartered, of Chicago, for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff Ognjen Mímica brought an action for monetary, declaratory and injunctive relief concerning the invention of a device called the Quality Control Carrier (QCC). The action challenged the validity of plaintiff’s assignment to defendant of his rights in the patent application for the QCC. The court granted plaintiff’s motion for declaratory judgment. This appeal is taken pursuant to Supreme Court Rule 304(a). (134 Ill. 2d R. 304(a).) At issue is the propriety of the granting of declaratory judgment.

In the late summer of 1990, plaintiff invented a new kind of truck trailer which improves the safety and efficiency of transporting steel coils. At the time of the invention plaintiff was employed by defendant Area Interstate Trucking, Inc. (AIT), as general manager. AIT is in the business of transporting metal products. AIT recommended a law firm, Fitch, Even, Tabin & Flannery (Fitch Even) to prepare a patent application. On May 24, 1991, Fitch Even prepared and filed in Mimica’s name a declaration for patent application with the United States Patent and Trademark Office. The application listed Mímica as the sole inventor of the QCC. A prototype of the QCC was developed at AIT’s expense. AIT’s patent attorney prepared a patent application for the QCC. AIT paid for the preparation of the patent application. AIT employees participated in building the prototype.

On June 6, 1991, AIT’s president and principal shareholder, Richard Dickson, requested plaintiff to come to a meeting at Dickson’s office in Homewood, Illinois. At that meeting the other AIT shareholders, Kelly and Trainer, were also present. During the meeting Dickson accused plaintiff of not being a “team player” and of disloyalty. Dickson demanded that all rights in the QCC be owned by AIT because its development was a team effort and Dickson demanded that plaintiff sign any documents necessary to accomplish the ownership transfer. Dickson made it clear to Mímica that unless he signed the documents he would not remain part of “the team.” Dickson does not dispute that he threatened to terminate Mímica. Mímica asked for time to think about the matter. A meeting was scheduled for 7 a.m. the next morning. That evening Mímica called Dickson and they met at a restaurant in Tinley Park, Illinois, where Mímica agreed to assign all his rights in the Mímica application to AIT. On June 19, 1991, Dickson asked Mímica to come to his office to sign some documents. Dickson presented Mímica with a document entitled “Assignment” which purported to assign all of Mimica’s rights in the Mímica patent application to AIT. Mímica signed the assignment but testified that he did so because he feared he would be fired if he refused. Later that day Mímica retained outside legal counsel, who wrote Dickson a letter declaring the assignment void. On July 1, 1991, Dickson terminated Mímica based upon Dickson’s determination that the letter received from plaintiff’s attorney declaring the assignment void illustrated that Mímica was not a team player.

On July 15, 1991, Mímica filed a verified complaint seeking injunctive relief, declaratory relief (including a declaration that plaintiff was entitled to all right and title in the patent application), and money damages. On October 29, 1991, the trial court granted plaintiff’s motion for declaratory judgment and ordered that “Plaintiff’s assignment signed on June 19, 1991, which purportedly assigned his rights to the QCC, is null and void. Thus, Plaintiff Ognjen Mímica is the sole owner of all past, present and future rights of patent number 07/ 705,555 (the number of the QCC).” However, the court also granted AIT shop rights to the invention because the invention was developed and perfected in the employer’s plant with its time, materials and appliances, and wholly at its expense. See Grip Nut Co. v. Sharp (7th Cir. 1945), 150 F.2d 192, 196-97.

Defendant’s appeal asks this court to reverse the parts of the order of October 28, 1991, declaring that the assignment of June 19, 1991, was null and void and declaring that plaintiff was the sole owner of all past, present and future rights of patent in the QCC without disturbing that part of the order which grants defendant shop rights in the invention. Plaintiff contends that defendant’s notice of appeal is defective. A notice of appeal gives a reviewing court jurisdiction over only the judgments or parts thereof specified in the notice of appeal. (Mydra v. Coronet Insurance Co. (1991), 221 Ill. App. 3d 482, 492, 582 N.E.2d 274, 280.) When an appeal is taken from a specified judgment only, or from a part of a specified judgment, the court of review acquires no jurisdiction to review other judgments or parts thereof not so specified or not fairly to be inferred from the notice as intended for review on appeal. (Mydra, 221 Ill. App. 3d at 492.) We find that the arguments raised in defendant’s brief are not so inconsistent with the relief requested in the notice of appeal as to constitute a substantive defect in the notice of appeal. The appeal raises two issues: (1) whether the motion for declaratory judgment failed to meet the statutory requirements (Ill. Rev. Stat. 1991, ch. 110, par. 2-701 (now 735 ILCS 5/2-701 (West 1992))); and (2) whether defendant is entitled to a jury trial on the merits of plaintiff’s request for a declaration of rights in the ownership of the patent application.

The general guidelines for determining whether the entry of a declaratory judgment is authorized are clear. There must be an actual controversy and it must appear that the judgment or order would terminate the controversy or some part of the dispute giving rise to the proceeding. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 701 (now 735 ILCS 5/2 — 701 (West 1992)).) The granting or denying of declaratory relief rests within the sound discretion of the trial court, and the complaining party on appeal must show affirmatively an abuse of discretion. (Marlow v. American Suzuki Motor Corp. (1991), 222 Ill. App. 3d 722, 584 N.E.2d 345.) The statute authorizing courts to enter declaratory judgments does not prescribe any particular form of prayer for the entry of such a judgment, and further provides that a declaratory judgment may be sought as an incident to or part of a pleading seeking other relief. Krebs v. Mini (1977), 53 Ill. App. 3d 787, 791, 368 N.E.2d 159, 162-63.

Defendant denies that the actual controversy requirement is satisfied here. It contends that the underlying facts and issues were premature. Its reliance, however, on Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 362 N.E.2d 298, is misplaced. That case makes it clear that an actual controversy exists where a plaintiff alleges injury or a threat of injury to itself. (Underground Contractors, 66 Ill. 2d at 375.) A wrong need not have been committed. Nor is it necessary that an injury have been inflicted. Rather, the case must only present a “concrete dispute admitting of an immediate and definitive determination of the parties’ rights.” (Underground Contractors, 66 Ill. 2d at 375.) Moreover, “the party seeking relief must possess a personal claim, status, or right which is capable of being affected.” (Underground Contractors, 66 Ill. 2d at 376.) In Underground Contractors the actual controversy requirement was not satisfied. There a trade association sought to have declared invalid certain bidding procedures intended to encourage the hiring of minorities by firms which bid on public works projects. The association was not a contractor and did not compete for public works contracts. Therefore the trade association was not in a position to allege the threat of injury to itself required to present an actual controversy. In contrast, here, the plaintiff alleges the threat of injury to his personal pecuniary interests in the patent application. If the assignment in question was found to be valid, then the plaintiff would lose all rights in the patent application.

In an effort to show the absence of an actual controversy, defendant speculates as to what would happen should the United States Patent Office refuse to issue a patent on the QCC. It maintains that in that event “all of the litigation *** will be for naught. The Court will have declared Plaintiff to be the sole owner of the rights to nothing. That is exactly what the ‘actual controversy’ requirement seeks to prevent.” Our review of the cases persuades us that that is not what the actual controversy requirement seeks to prevent. Defendant’s speculation ignores the fact that the actual controversy requirement is satisfied by a threat of injury alone. No actual injury need be incurred. Moreover, defendant’s assertion that the declaratory relief may entitle plaintiff to “the rights to nothing” belies the aggressiveness with which it contests this relief.

Stone v. Omnicom Cable Television of Illinois, Inc. (1985), 131 Ill. App. 3d 210, 475 N.E.2d 223, sheds further light on the proper application of the actual controversy requirement. There the court stated that “the condition of justiciability is satisfied where the mere existence of a claim, assertion or challenge to the plaintiff’s legal interests portends the ripening seeds of litigation and casts doubt, insecurity and uncertainty upon the plaintiff’s rights or status, thereby damaging the plaintiff’s pecuniary or material interests.” (Stone, 131 Ill. App. 3d at 214.) In Stone there was an actual controversy. The city used eminent domain in regard to statutes authorizing installation of a cable television system on plaintiff’s land. Defendant franchisee entered onto plaintiff’s land. The statutes presented a challenge to plaintiff’s protected legal interest in view of the continuing trespass and the likelihood of defendant’s reliance on those statutes. The instant case is analogous in the sense that defendant directly challenges plaintiff’s legal interests in the patent application. Defendant claims that the agreement signed by plaintiff under threat of termination is a valid assignment of plaintiff’s rights in his patent application. Such a claim gives rise to an actual controversy.

Defendant also maintains that the requirement that the declaratory judgment terminate the controversy or some part thereof is not satisfied here. In asking this court to reverse the trial court, defendant cites two cases: Marlow v. American Suzuki Motor Corp. (1991), 222 Ill. App. 3d 722, 584 N.E.2d 345, and Krebs v. Mini (1977), 53 Ill. App. 3d 787, 368 N.E.2d 159. Both of these are cases where the appellate court upheld the trial courts where, in the exercise of their discretion, they dismissed prayers for declaratory relief. The courts upholding those dismissals did not decide that they were required as a matter of law but, rather, only that the dismissals did not constitute an abuse of discretion. The complaints were dismissed because the declaratory relief would not have finalized “an important and autonomous part of the controversy” but rather would have resulted “in impermissible piecemeal litigation.” (Marlow, 222 Ill. App. 3d at 731.) For example, in Marlow, if the trial court had found that the parties were partners, the finding would have left the parties in litigation over the terms of the partnership agreement and whether or not there had been a breach of those terms. Marlow, 222 Ill. App. 3d at 730-31.

Contrary to defendant’s theory, the trial court’s granting of declaratory judgment has not left the parties in an analogous situation. Rather, that judgment terminated an autonomous controversy. It finalized any question as to the validity of plaintiff’s assignment signed on June 19, 1991, which purportedly assigned his rights to the QCC to AIT and, therefore, it resolved the question of ownership of all past, present and future rights in the patent application.

Defendant also argues that the trial court improperly entered declaratory judgment even though the matter “was not properly before the court and there was no opportunity to be heard.” Purporting to support this contention defendant cites two cases: Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787, and Inter-Insurance Exchange of the Chicago Motor Club v. State Farm Insurance Co. (1983), 113 Ill. App. 3d 157, 446 N.E.2d 1224.

Kahle held that the voluntary dismissal of a case under section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1009 (now 735 ILCS 5/2 — 1009 (West 1992))) was a final order appealable by defendant. That case also held that a trial or hearing had not begun and that therefore the dismissal was without prejudice. While defendant correctly observes that Kahle describes a hearing as both “the equitable equivalent of a trial” and “a *** proceeding in which evidence is taken,” it does not clarify how this observation aids it in the present case. Kahle, 104 Ill. 2d at 309.

Defendant relies on Inter-Insurance for the proposition that, as defendant states in its brief: “A Court’s Order must be interpreted in the context of the motions that accompany them.” In that case the parties disagreed as to whether a particular issue had been before the trial court. The appellate court decided this question by considering what the parties had sought in their various motions, how the trial court characterized those motions, and what objections (if any) to those motions the parties made. Inter-Insurance, 113 Ill. App. 3d at 163.

Under Inter-Insurance, when a party objects to opposing counsel’s characterization of the motion before the court, such an objection raises a doubt as to what is actually before the court. But even if the motion for preliminary injunction was properly before the court rather than the motion for declaratory judgment, any error made was harmless rather than prejudicial. Defendant had ample notice and opportunity to be heard.

Mímica filed his motion for declaratory judgment requesting a declaration of rights on July 29, 1991, and the motion was first called for hearing on July 31, 1991. On that date both sides presented oral argument on the motion. The court declined to rule on that date and continued the motion for declaratory judgment until September 3, 1991, at the same time as plaintiff’s motion for preliminary injunction was set for hearing. While the court did not indicate that it would necessarily rule on the motion for declaratory judgment after the hearing which began on September 3, 1991, it clearly reserved the right to do so and told counsel that in any event there would be only one hearing on both motions. Responding to the arguments of counsel concerning whether the court should rule on the motion for declaratory judgment on September 3, 1991, the court stated, “Well, we will see what happens that day. I am not going to do it twice.”

On September 3, 1991, plaintiff presented evidence at the hearing and filed a brief in support of the motion for declaratory judgment as well as his motion for preliminary injunction. Defendant had an opportunity to do the same as it was at all times in possession of all evidence relevant to the issue of what consideration plaintiff received in exchange for the assignment of his patent application rights.

It was not until September 12, 1991, after the close of plaintiff’s case that defense counsel objected to the court’s ruling on the motion for declaratory judgment. The only objection expressed by counsel was that the court had not set a briefing schedule on that motion. It did not request or indicate the need for a second evidentiary hearing on the motion for declaratory judgment.

On that date also both sides filed lengthy trial memoranda which fully briefed the issue raised by plaintiff’s motion for declaratory judgment. Further, defendant’s trial memorandum filed September 3, 1991, in opposition to plaintiff’s motion for preliminary injunction fully briefed the issue of adequacy of consideration, which was the central issue raised by plaintiff’s motion for declaratory judgment. Defendant argued in its trial memorandum that continuing employment for just 12 days past the threat of termination was sufficient consideration to support the assignment of the patent application.

Upon hearing the testimony of plaintiff and Mr. Dickson, defendant’s president, the trial court correctly determined that there was no material factual dispute between the parties as to what plaintiff received from AIT, or did not receive, in exchange for the assignment of his patent application. The court responded by issuing a declaration of rights by order entered October 28, 1991, that the assignment was void, and that the consideration of 12 days’ additional employment shocked the conscience and was, in fact, no consideration at all.

Neither defendant’s motion to vacate that order, its supporting memorandum of law, nor its brief or argument before this court introduces any new arguments or identifies any new evidence beyond that which was made or introduced by defendant prior to the trial court’s ruling on October 28,1991.

Defendant was provided with ample opportunity to produce evidence that no duress existed or to show that adequate consideration was given for plaintiff’s assignment of the patent application to defendant. Despite its oral and written opportunities, it did not succeed.

The trial court properly used declaratory judgment to resolve on an expeditious basis an urgent and actual controversy between the parties concerning the ownership of a pending patent application and the existence of shop rights. The declaratory judgment remedy should be liberally applied and not restricted by unduly technical interpretations. Kluk v. Lang (1988), 125 Ill. 2d 306, 531 N.E.2d 790.

Chicago Division of the Illinois Education Association v. Board of Education (1966), 76 Ill. App. 2d 456, 222 N.E.2d 243, is illustrative of the proposition that there are few procedural constraints on courts regarding the issuance of declaratory relief. That court affirmed in part the declaratory relief granted below in an “Opinion and Decree.” The court responded to the defendant’s questions as to the enforceability of the decree by stating that “[t]he court considered the pleadings, affidavits and exhibits and obviously decided that no material dispute existed as to the facts and that, therefore, there was no triable issue of fact. The court was within its equity powers in its attempt to give summary and complete relief in this case and dispose of the principal issues on such equitable terms as the court deemed required ***.” (Chicago Division, 76 Ill. App. 2d at 473.) The court stated that “there is no technical form prescribed for the declaration of rights; it is sufficient if the rights may be ascertained therefrom in connection with the findings of court or jury in view of the controversy presented.” (Chicago Division, 76 Ill. App. 2d at 474.) Our review of the record persuades us that the trial court treated this case similarly.

The cases of Bituminous Casualty Co. v. Fulkerson (1991), 212 Ill. App. 3d 556, 571 N.E.2d 256, and Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24, cited by defendant underscore the rule that declaratory judgments are not to be used as a vehicle for prematurely determining disputed factual issues that are crucial to an underlying suit. That rule is satisfied here. The trial court perceived and the record reveals that there were no material facts in dispute. It is not disputed that on June 19, 1991, under threat of termination plaintiff signed an assignment of all of his rights in the patent application he had filed to his employer. It is not disputed that plaintiff was never paid anything for that assignment other than an illusory promise. (Mr. Dickson testified that had plaintiff not protested the assignment, he would have enjoyed the benefits of future career opportunities with AIT. However, since his employee-at-will status never changed, all of those opportunities were within Mr. Dickson’s control.) Nor is it disputed that on July 1, 1991, shortly after having spoken with legal counsel who challenged the validity of the assignment by letter to his employer, AIT, plaintiff was fired by Mr. Dickson.

If defendant withheld evidence or argument because it believed that the court could not issue a declaration of rights in this case without a jury trial, it was mistaken. Count II of plaintiff’s complaint, which contains the prayer for declaratory relief, is equitable in nature because it asks the court to declare that plaintiff’s assignment of the patent application to defendant is void as a matter of law. A suit to have a contract declared void is a suit in equity, not law. At issue was whether the consideration received by plaintiff was adequate to support the purported assignment of his patent application to defendant on June 19, 1991. Whether consideration is legally adequate to support a contract is a question of law for the court to decide, not a question of fact for the jury. Abrams v. Awotin (1944), 388 Ill. 42, 57 N.E.2d 464; Russell v. Jim Russell Supply, Inc. (1990), 200 Ill. App. 3d 855, 558 N.E.2d 115.

Where the amount of the consideration which passed is not only so grossly inadequate as to shock the conscience of the court, but also accompanied by circumstances of unfairness, the court is in a position to set aside the transaction. (O’Neill v. De Laney (1980), 92 Ill. App. 3d 292, 297, 415 N.E.2d 1260, 1265; Bonner v. Westbound Records, Inc. (1979), 76 Ill. App. 3d 736, 394 N.E.2d 1303; Zempel v. Hughes (1908), 235 Ill. 424, 85 N.E. 641.) Where the inadequacy is great, the circumstances of unfairness need only be slight to cause this court to set aside the transaction. (Levy v. Broadway-Carmen Building Corp. (1937), 366 Ill. 279, 285, 8 N.E.2d 675.) Here, where valuable economic rights were exchanged for an illusory promise, we find the amount of consideration so grossly inadequate as to amount to none at all. Moreover, the alleged consideration was accompanied by circumstances of unfairness. Where the parties to a transaction are in an employer/employee relationship, as in the case here, an assumption arises that the employer has superior bargaining power. (Steger v. Lappin (1970), 119 Ill. App. 2d 146, 150, 255 N.E.2d 87, 89.) The employer here took undue advantage of that superior bargaining power. Dickson’s threat of termination substantially impaired plaintiff’s exercise of free will in the execution of the assignment and the court properly determined that the assignment was void for lack of consideration.

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

Affirmed.

MURRAY and COUSINS, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    ELECTRO-MOTIVE DIVISION, General Motors Corporation, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Margaret Jasko, Indiv. and as Guardian of Christina Jasko, et al., Minors, Appellees).
    First District (Industrial Commission Division)
    No. 1 — 92—0762WC
    Opinion filed July 30, 1993.

      Alan C. Garrett, of Nyhan, Pfister, Bambrick & Kinzie, P.C., of Chicago, for appellant.
    Brian J. McManus and Thomas J. Loucks, both of Brian J. McManus & Associates, Ltd., of Chicago, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The employer, Electro-Motive Division, General Motors Corporation (Electro-Motive), appeals the order of the Industrial Commission (Commission) awarding penalties in the amount of $21,168.75 pursuant to section 19(k) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(k)) and attorney fees in the amount of $14,233.75 pursuant to section 16 of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.16). Electro-Motive contends the award of fees and penalties was against the manifest weight of the evidence because its failure to pay the award was not unreasonable and vexatious. We affirm.

On July 30, 1981, the employee, Joseph Jasko, sustained an accidental injury to his back while employed by Electro-Motive when an overhead drill fell on him. He filed an application for adjustment of claim on August 21, 1981. Jasko (decedent) died of unrelated causes on May 13, 1984. Decedent’s widow and two surviving children (claimants) filed an amended application for adjustment of claim on April 2, 1987.

On October 10, 1986, the arbitrator entered his decision awarding decedent 463/t weeks of temporary total disability (TTD), $839 in medical expenses and $282.25 per week for 150 weeks pursuant to section 8(d)(2) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.8(d)(2)) for permanent partial disability (PPD) to the extent of 30% of the man as a whole.

Electro-Motive filed a petition for review and a petition pursuant to section 19(h) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(h)) on April 2, 1987. Electro-Motive alleged in the section 19(h) petition that as of the date of decedent’s death, its obligation to pay PPD pursuant to section 8(d)(2) of the Act ended. Electro-Motive contended that, under section 8(d)(2), there was no provision providing that this type of disability award survives the death of the claimant.

The Commission conducted a hearing on April 2, 1987, noting it was a hearing under section 19(h) of the Act pursuant to Electro-Motive’s petition and a cross-review of the arbitrator’s award. The death certificate of decedent was admitted into evidence. As of this date, Electro-Motive had made no payment on this award. Also at this time, claimants filed a notice of motion for attorney fees and penalties, a petition for penalties and attorney fees and an amended application for adjustment of claim.

A discussion occurred at this hearing on whether the Commission could combine a hearing on Electro-Motive’s section 19(h) petition and the cross-review of the arbitrator’s award. Claimants contended the section 19(h) petition was premature because there was no final decision by the Commission on the matter. Electro-Motive alleged the hearings could be combined because decedent’s disability ended with his death, terminating its liability. Commissioner Cooke concluded the Commission could hear the matters at the same time only if the evidence established Electro-Motive’s obligation to PPD ended with decedent’s death.

On April 20, 1989, the Commission entered its decision. It affirmed the arbitrator’s award and found that Electro-Motive’s section 19(h) petition was premature since it was filed before the review process was completed. No appeal of that decision by the Commission was taken. On May 25, 1989, Electro-Motive paid a portion of the award, including the 463Ar weeks of TTD, the medical expenses and the PPD award through the date of decedent’s death.

On July 13, 1989, claimants filed a motion for penalties under sections 19(k) and 19(1) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(1)) and attorney fees under section 16 of the Act for ElectroMotive’s failure to pay the entire award. Although no transcript appears in the record, the parties contend that on July 20, 1989, claimants’ motion was presented to Commissioner Cooke. On this date, Electro-Motive filed its response to that motion for penalties and attorney fees and filed an amended section 19(h) petition. The record on appeal does contain a file-stamped copy of the amended section 19(h) petition dated July 20,1989.

On February 8, 1990, a notice of predecision memorandum on review was filed containing the following notation: “The decision on petition for penalties award 19(k) of 21,168.75 and section 16 of 14,233.75.” Electro-Motive sent a letter by messenger to the Commission on February 22, 1990, noting the notice of predecision and requesting the Commission to issue a notice of decision on the amended section 19(h) petition at the earliest possible date so that the full written decision would contain reasons for ruling on both matters.

On October 25, 1990, the Commission entered a decision on claimants’ petition for attorney fees and penalties. The Commission, after considering the entire record, concluded claimants were entitled to $14,233.75 in attorney fees under section 16 of the Act and $21,168.75 for additional compensation under section 19(k) of the Act.

The Commission found that on or about May 25, 1989, ElectroMotive elected not to appeal the decision of the Commission affirming the arbitrator’s award but instead paid a portion of the award. The court further found that as of February 22, 1990, Electro-Motive had failed to pay the award as provided by the April 20, 1989, decision of the Commission and this failure to pay the award was unreasonable and vexatious. Accordingly, the Commission awarded the above-mentioned attorney fees and penalties. This decision made no explicit mention of Electro-Motive’s amended section 19(h) petition except the general notation that it had considered “the entire record.”

On January 31, 1992, the circuit court of Cook County confirmed the Commission’s decision. Electro-Motive timely filed its notice of appeal.

Section 16 of the Act provided, in pertinent part:

“Whenever the Commission shall find that the employer, his or her agent, service company or insurance carrier has been guilty of delay or unfairness towards an employee in the adjustment, settlement or payment of benefits due such employee *** or has been guilty of unreasonable or vexatious delay, intentional under-payment of compensation benefits, or has engaged in frivolous defenses which do not present a real controversy, within the purview of the provisions of paragraph (k) of Section 19 of this Act, the Commission may assess all or any part of the attorney’s fees and costs against such employer and his or her insurance carrier.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.16.)

Section 19(k) of the Act stated:

“In case where there has been any unreasonable or vexatious delay of payment or intentional underpayment of compensation, or proceedings have been instituted or carried on by the one liable to pay the compensation, which do not present a real controversy, but are merely frivolous or for delay, then the Commission may award compensation additional to that otherwise payable under this Act equal to 50% of the amount payable at the time of such award.” Ill. Rev. Stat. 1989, ch. 48, par. 138.19(k).

Where a delay has occurred in payment of workers’ compensation benefits, the employer bears the burden of justifying the delay. The test is whether the employer’s reliance was objectively reasonable under the circumstances. (Crockett v. Industrial Comm’n (1991), 218 Ill. App. 3d 116, 121, 578 N.E.2d 140, 143.) Courts have refused to assess penalties under section 19(k) of the Act where the evidence indicates that the employer reasonably could have believed that the employee was not entitled to the withheld compensation. The standard an employer is held to is one of objective reasonableness in its belief. Thus, it is not good enough to merely assert honest belief that the employee’s claim is invalid or that his award is not supported by the evidence; the employer’s belief is “honest” only if the facts which a reasonable person in the employer’s position would have would justify it. Board of Education v. Industrial Comm’n (1982), 93 Ill. 2d 1, 9-10, 442 N.E.2d 861, 865.

WTiether the employer’s conduct justifies the imposition of penalties is to be considered in terms of reasonableness. (McKay Plating Co. v. Industrial Comm’n (1982), 91 Ill. 2d 198, 209, 437 N.E.2d 617, 623.) Whether an employer has acted reasonably in refusing to pay benefits is to be decided on a case-by-case basis and is a question of fact. A reviewing court will not disturb the Commission’s determination in that regard unless it is contrary to the manifest weight of the evidence. Crockett, 218 Ill. App. 3d at 121-22, 578 N.E.2d at 143.

Electro-Motive contends the Commission’s decision granting the motion for attorney fees and penalties was against the manifest weight of the evidence. It alleges it has made a “good faith” and reasonable challenge to its liability to pay compensation past the date of decedent’s death. Its challenge to its liability to pay the remaining part of the award is based on the assertion that under section 19(h) of the Act, decedent’s disability “ended” with his death and thus relieved Electro-Motive of its obligation to pay any PPD benefits past that date.

We will first address the issue of whether awards made under section 8(d)(2) of the Act survive the death of the claimant when such death is unrelated to the accidental injury.

There are three sections of the Act which are crucial to the resolution of this issue. First, section 19(h) of the Act provides:

“[A]s to accidents occurring subsequent to July 1, 1955, which are covered by any agreement or award under this Act providing for compensation in installments made as a result of such accident, such agreement or award may at any time within 30 months after such agreement or award be reviewed by the Commission at the request of either the employer or the employee on the ground that the disability of the employee has subsequently recurred, increased, diminished or ended.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(h).)

Section 8(eX19) of the Act provides:

“In a case of specific loss and the subsequent death of such injured employee from other causes than such injury leaving a widow, widower, or dependents surviving before payment or payment in full for such injury, then the amount due for such injury is payable to the widow or widower and, if there be no widow or widower, then to such dependents, in the proportion which such dependency bears to total dependency.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(e)(19).)

Finally, section 8(h) of the Act provides:

“In case death occurs from any cause before the total compensation to which the employee would have been entitled has been paid, then in case the employee leaves any widow, widower, child, *** such compensation shall be paid to the beneficiaries of the deceased employee and distributed as provided in paragraph (g) of Section 7.” Ill. Rev. Stat. 1989, ch. 48, par. 138.8(h).

Electro-Motive first notes that section 8(e)(19) of the Act refers to a specific loss and, thus, by its own terms is limited to those kinds of cases. It further notes that there is no analogous provision applicable to section 8(d)(2) of the Act, and thereby concludes this section provides no support for the contention that liability to pay the award did not end with decedent’s death.

Next, Electro-Motive contends that sections 19(h) and 8(h) of the Act must be read together. Electro-Motive focuses on the phrase “the total compensation to which the employee would have been entitled” in section 8(h). Electro-Motive reasons that, pursuant to section 19(h), and specifically the phrase referring to the disability “ending,” if the week before decedent’s death, his disability had ended, he would not have been entitled to the rest of the compensation. Electro-Motive draws an analogy by asserting that what actually happened here is that the disability “ended” because of decedent’s death. Electro-Motive contends because of decedent’s death, he was not “entitled to any compensation” after his death, since his disability “ended,” and thus section 8(h) of the Act does not apply.

Section 8(h) of the Act is clear and unambiguous. The language of that section provides that benefits, to which the employee would have been entitled, but for his death, are to be paid to the employee’s survivors upon his death from any cause. Electro-Motive alleges decedent’s disability ended upon his death. Decedent would have been entitled to the remaining weeks of PPD had he not died, assuming nothing else had occurred to change the status of the disability. Electro-Motive offered no evidence to suggest that but for his untimely death, decedent’s disability would not have continued for the entire 150 weeks of the award. Thus, Electro-Motive’s argument that section 19(h) applies because decedent was not entitled to the full 150 weeks of PPD because his disability ended with his death is erroneous.

Therefore, the imposition.of penalties and attorney fees was warranted in this instance. First, Electro-Motive attempted to avoid the plain language of section 8(h) by using section 19(h) to argue that decedent was not entitled to the compensation after his death because of the “ending” of his disability. Rather than appeal the Commission’s decision affirming the arbitrator’s award, Electro-Motive elected to pay a portion of the award, file an amended section 19(h) petition and attempt to reduce its amount of liability in that manner. Electro-Motive could have appealed the Commission’s award and alleged as an issue on appeal that its obligation to pay the PPD ended with decedent’s death. Electro-Motive tried to circumvent the language of section 8(h) by throwing in the language of section 19(h) when it appears not to be an appropriate way to challenge its liability.

Electro-Motive ignored the language of section 8(h). Respondent did not seek review of the Commission’s April 20, 1989, decision; did not seek review of the Commission’s determination that the 19(h) petition filed on February 27, 1987, was premature; and did not file its amended section 19(h) petition until July 20, 1989, after claimants had filed the petition for penalties. These actions in themselves do not indicate an objective reasonable belief that the delay in payment was reasonable. The Commission’s imposition of attorney fees and penalties was not against the manifest weight of the evidence.

Because of our decision in this matter, we need not resolve the issue raised by claimants of whether the propriety of the amended section 19(h) petition is properly before this court.

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

Affirmed.

RAKOWSKI, WOODWARD, SLATER, and RARICK, JJ., concur.