author: JUSTICE GORDON

text:
    JUDITH P. SAWYIER et al., Plaintiffs-Appellees, v. WILLIAM H. YOUNG, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—0728
    Opinion filed May 18, 1990.

      Robert L. Scott, of Chicago, for appellant.
    Joyce & Kubasiak, P.C., of Chicago (Richard S. Reizen, of counsel), for appellees.
   JUSTICE GORDON

delivered the opinion of the court:

Defendant appeals from an order of the circuit court of Cook County which (1) denied his motion to enter a default judgment for plaintiffs’ failure to answer his counterclaim or, alternatively, to set a trial date on the counterclaim, and (2) dismissed the counterclaim on grounds that it was not within the jurisdiction of a court hearing forcible entry and detainer actions. He contends that the trial court exceeded its authority in denying his motion and improperly dismissed his counterclaim on the grounds that it was not germane to a forcible detainer proceeding. Both defendant and plaintiffs seek an award of attorney fees for this appeal. We affirm the trial court’s denial of defendant’s motion and deny an award of fees to either side.

In March of 1988, defendant entered into a contract to sell real estate at 4849 South Ellis in Chicago, consisting of a main house and coach house, to plaintiffs for $270,000. A rider to the contract provided defendant with the right to live rent free in the coach house for the remainder of his life. At the closing, defendant and plaintiffs signed a memorandum of understanding confirming this arrangement and further stating that plaintiffs would never engage in a course of conduct to harass defendant into leaving the coach house unless defendant in bad faith refused to perform his residency, utility or maintenance obligations.

Thereafter, the parties became involved in two lawsuits involving this coach house. On November 30, 1988, plaintiffs filed a forcible entry and detainer complaint against defendant claiming that they were entitled to possession of the coach house and defendant unlawfully withheld possession of it. The complaint was silent as to the basis for these claims. On December 12, defendant filed a separate action in chancery seeking a rescission of the real estate contract based upon allegations that plaintiffs, contrary to the memorandum of understanding, had engaged in a course of conduct to force him out of the coach house.

On December 19, 1988, the date for appearance and possible trial in the forcible detainer action, defendant filed his appearance and demanded a jury trial. He did not file any answer at that time. Nothing further transpired on this action until January 4, 1989, when plaintiffs served a notice that they would appear on January 6 to move to voluntarily dismiss their forcible detainer action. On January 5, defendant, without leave of court, filed a combined answer and counterclaim to the forcible detainer action in the court clerk’s office. In his answer, defendant “admitted” that plaintiffs were entitled to the possession of the main house at 4849 South Ellis, but did not address their possession claim on the coach house. Defendant, however, did deny that he wrongfully possessed the coach house, alleging that he had vacated the house because of certain wrongful acts of plaintiffs, set forth in the counterclaim, but that he made no further claim to the coach house. His counterclaim alleged that plaintiffs had breached the real estate contract and committed various torts based on essentially the same facts alleged in his chancery complaint and sought monetary damages, including damages measured by the value of rent-free use of the coach house for the remainder of his life. On January 6, the trial court granted plaintiffs’ motion to voluntarily dismiss the forcible detainer action. The order makes no mention of the counterclaim. On February 3, defendant and plaintiffs agreed to dismiss the chancery proceeding with prejudice.

On February 17, 1989, defendant presented a written motion to the forcible detainer court asking it to either enter a default judgment against plaintiffs for failing to answer his counterclaim or to set the counterclaim for trial. At the hearing on the motion, the trial court noted that defendant’s counterclaim did not appear on its half sheet and “incidentally” was not germane to the issue of possession and denied defendant’s motion. The trial court then denied the motion. Immediately after denying the motion, it permitted defendant to further argue on oral motion that, regardless whether the counterclaim was duly filed, the trial court had jurisdiction to hear the counterclaim because it was germane to the issue of possession. In again denying the motion, the court responded by first noting that possession was no longer an issue because of defendant’s answer and then stated that, regardless whether the counterclaim was properly filed, it had no jurisdiction to consider what was set forth in the counterclaim. It further stated that because of this, defendant was not harmed by the January 6 voluntary dismissal order.

Opinion

A threshold issue in this appeal, touched upon but not fully articulated by the parties, is whether defendant’s counterclaim was filed timely and thus properly before the trial court when it entered its January 6, 1989, order voluntarily dismissing the forcible detainer action. If it was properly filed, then a voluntary dismissal would not have been appropriate without defendant’s consent. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1009.) If it was not properly filed, the dismissal order terminated the forcible detainer action and the filing of any counterclaim would thereafter no longer be possible. Upon review of the record, we find that it was not properly filed.

The facts which pertain to this issue are undisputed. On December 19, 1988, the date on which defendant was required to appear and be ready for trial, defendant filed his appearance and jury demand but filed no answer. At that time, the trial court did not enter any order directing defendant to file an answer. On January 5, 1989, the day before the scheduled hearing on plaintiffs’ voluntary dismissal motion, defendant unilaterally filed an answer and counterclaim in the court clerk’s office. The trial court neither ordered nor granted leave to file these pleadings. On January 6, the trial court granted the voluntary dismissal motion.

Our determination of whether the counterclaim was filed timely begins with a consideration of the time for filing an answer in the forcible detainer action since, ordinarily, the time for filing a counterclaim is the same as the time for filing the answer. (Ill. Rev. Stat. 1987, ch. 110, par. 2—608(b).) Supreme Court Rule 181 (107 Ill. 2d R. 181) sets forth various times for filing answers in courts in Illinois. (107 Ill. 2d R. 181(a) (answer due within 30 days after date of service); 107 Ill. 2d R. 181(b)(1) (answer due within 10 days after the date for appearance).) However, -with respect to forcible detainer actions, Rule 181(b)(2) provides:

“In actions for forcible detainer (see Rule 101(b)), the defendant must appear at the time and place specified in the summons. If the defendant appears, he need not file an answer unless ordered by the court; and when no answer is ordered, the allegations of the complaint will be deemed denied, and any defense may be proved as if it were specifically pleaded.” 107 Ill. 2d R. 181(b)(2).

Defendant seemingly argues that because Rule 181(b)(2) does not set forth a specific date or time frame for filing an answer in a forcible detainer action, his answer and his counterclaim, filed with the clerk 17 days after the due date for filing his appearance, were timely filed and properly before the court. We disagree. We find that this rule only permits a defendant until the date of appearance to file an answer, after which he must either obtain leave from or be ordered by the court to file an answer. The rule states that “[i]f the defendant appears, he need not file an answer unless ordered by the court.” We read this provision to mean that an answer, if it is to be filed, is due on the date the appearance is filed and thereafter may only be filed by order of court.

Our finding that the appearance date in a forcible detainer action marks the time within which a written answer and, correspondingly, a counterclaim may be filed as a matter of right is supported by the decision in First Bank v. Carswell (1982), 111 Ill. App. 3d 71, 443 N.E.2d 755. There, the issue was the time for filing a jury demand in a forcible detainer action. The court’s decision that a defendant must make a jury demand by the date of appearance conforms with the conclusion that the answer, too, is due by the date of appearance since, in civil actions, a defendant must file his jury demand not later than the date for filing his or her answer. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1105.) Additionally, this case sheds some light directly on the issue of whether a court order is needed to file an answer and counterclaim after the appearance date, because the facts of the case indicate that defendant obtained leave of court to file a late appearance, answer, and counterclaim.

This finding is consistent "with the general purpose of our supreme court rules, which is to facilitate the orderly disposition of the business of courts and to expedite the prompt administration of justice. (See Gibellina v. Handley (1989), 127 Ill. 2d 122, 134, 535 N.E.2d 858, 864.) A rule which controls the time frame for filing an answer is more likely to facilitate the orderly disposition of the business of courts and expedite the prompt administration of justice than one which allows a defendant to file his answer at will. In fact, it could lead to chaos to permit a party to file pleadings without any control by the courts. This is particularly true in the case of filing an answer and counterclaim after the date of appearance in a forcible detainer action where, at least in theory, the appearance date could also be the trial date. (See Cook County Circuit Ct. R. 10.5.) By giving courts control over late pleadings, we avoid surprise, hardship, prejudice and unnecessary delays in proceedings.

Another consideration for finding that an answer and counterclaim are due on the date of appearance is that by doing so we give meaning to all of the language of Rule 181(b)(2). (See People v. Redmond (1974), 59 Ill. 2d 328, 334, 320 N.E.2d 321, 324.) If we were to read this rule as permitting the filing of the answer and counterclaim at any time, then the language in the rule concerning the posture of the pleadings when no answer is ordered would be at best tentative, without firm stability or finality to the issues framed. A final consideration is that if we were to permit a party to control the timing of pleadings in a forcible detainer action, we would be giving that party the power to circumvent a prime purpose of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1987, ch. 110, par. 9—101 et seq.), which is to provide a speedy remedy to give possession to those entitled to it. (Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, 251, 263 N.E.2d 833, 835.) To permit a party to file a pleading when he or she chooses after the appearance date could defeat this speedy remedy.

Defendant failed to file his answer by December 19, 1988, the date for filing his appearance, but did file an answer and counterclaim in the clerk’s office on January 5, 1989, without leave of court. His failure to obtain leave of court rendered his answer and counterclaim liable at the discretion of the court to be disregarded or treated as a nullity. (See Balulis v. Hooper (1929), 338 Ill. 21, 22-23, 169 N.E. 821, 821-22.) The mere act of filing a late pleading in the clerk’s office does not place the late pleading properly before the court. If the result were to be otherwise, then Supreme Court Rule 183, which gives courts the power to grant extensions of time to file pleadings, would be without real efficacy. 107 Ill. 2d R. 183.

Accordingly, when plaintiffs moved for a voluntary dismissal, only their complaint was properly before the court. Under these circumstances, the trial court’s order dismissing the complaint was proper. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1009.) In fact, the trial court was compelled to dismiss the complaint. (Estate of Jackson v. Smith (1987), 183 Ill. App. 3d 663, 671, 541 N.E .2d 1117, 1122.) Once the forcible detainer action was dismissed, even with special leave of court, defendant could no longer file his claim as a counterclaim but instead would have to file his claim as an independent cause of action. Since the counterclaim never was properly before the court, the court’s denial of the motion for a default judgment on that counterclaim or to set it for trial was not error. See McGinnis v. A.R. Abrams, Inc. (1986), 141 Ill. App. 3d 417, 490 N.E.2d 115.

Although our decision that defendant’s counterclaim was not properly before the court resolves this appeal, we also find that even if defendant’s counterclaim had been properly before the court, a dismissal would have been proper because the counterclaim was not germane to the distinctive purpose of the forcible entry and detainer proceeding.

Section 9—106 of the Forcible Entry and Detainer Act provides:

“The defendant may under a general denial of the allegations of the complaint offer in evidence any matter in defense of the action. No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise. However, a claim for rent may be joined in the complaint, and judgment may be entered for the amount of rent found due.” (Ill. Rev. Stat. 1987, ch. 110, par. 9—106.)

A forcible entry and detainer proceeding is a summary statutory proceeding to adjudicate possession rights and should not be burdened by matters unrelated to the issue of possession. (Bismarck Hotel Co. v. Sutherland (1980), 92 Ill. App. 3d 167, 174, 415 N.E.2d 517, 522.) A counterclaim which does not dispute possession but which instead seeks damages for fraud or misrepresentation is not germane to the issue of possession. (Reid v. Arceneaux (1965), 63 Ill. App. 2d 113, 211 N.E.2d 24.) Defendant contends that his counterclaim is germane to the issue of possession. He claims that by his counterclaim he seeks a determination of his right to possession of the coach house under the terms of the real estate contract, albeit for the purpose of compelling an award of money equivalent to unpaid rent.

The matters raised by defendant’s counterclaim are not germane to the issue of possession of the coach house and therefore not properly joined in forcible detainer action. (Ill. Rev. Stat. 1987, ch. 110, par. 9—106.) Although defendant claims to be seeking a determination of his right to possession of the coach house, he, in effect, conceded the issue of possession when, in his answer, he stated that he had vacated the coach house and no longer claimed any interest in it. Thus, the issue of possession was not even involved in the proceeding. Additionally, although he now claims that the damages sought in his counterclaim include the equivalent of unpaid rent, it is clear from his pleading that he is seeking only monetary damages, including damages measured by the value of rent-free use of the coach house for the remainder of his life, for the alleged breach of the real estate contract and misrepresentation of plaintiffs. Where a claim seeks damages and not possession, it is not germane to the distinct purposes of the forcible entry and detainer proceeding. See Great American Fed eral Savings & Loan Association v. Grivas (1985), 137 Ill. App. 3d 267, 484 N.E.2d 429; Bismarck Hotel Co. v. Sutherland (1980), 92 Ill. App. 3d 167, 415 N.E.2d 517; Reid v. Arceneaux (1965), 63 Ill. App. 2d 113, 211 N.E.2d 24.

Reid v. Arceneaux (1965), 63 Ill. App. 2d 113, 211 N.E.2d 24, involved a situation somewhat similar to the facts in the present case. There, plaintiffs filed a forcible action to regain possession of a building on the basis that the defendant was in default under articles of agreement for warranty deed. Defendant chose not to contest possession but instead counterclaimed that plaintiffs had committed fraud and misrepresentation in the inducement for the purchase of the property and requested a rescission and monetary damages. The Reid court found that since defendant’s counterclaim did not dispute possession but rather sought relief other than possession, it was not germane to the distinctive purpose of the Forcible Entry and Detainer Act. (Reid, 63 Ill. App. 2d at 116, 211 N.E.2d at 26.) Similarly, in the present case, since defendant’s counterclaim did not dispute possession but rather sought relief in the form of monetary damages, it is not germane to the purpose of the Act.

The types of claims which Illinois courts have found to be germane to the issue of possession generally fall into one of four categories: (1) claims asserting a paramount right of possession (Allensworth v. First Galesburg National Bank & Trust Co. (1955), 7 Ill. App. 2d 1, 128 N.E.2d 600); (2) claims denying the breach of any agreement vesting possession in plaintiff (Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, 280 N.E.2d 208); (3) claims questioning the validity or enforceability of the document upon which plaintiff’s right to possession is based (Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, 263 N.E.2d 833); and (4) claims questioning a plaintiff’s motivation for the bringing of the forcible action (Clore v. Fredman (1974), 59 Ill. 2d 20, 319 N.E.2d 18). Defendant’s claim does not fall into any of these categories because, in each, the question of possession is at issue. As a result of defendant’s pleadings, possession is not in issue in this case. His claim only seeks monetary damages for plaintiffs’ alleged breach of the real estate contract and the various torts. Where a claim essentially involves damages and not possession, it is not germane to forcible actions. Bismarck Hotel Co. v. Sutherland (1980), 92 Ill. App. 3d 167, 174, 415 N.E.2d 517, 522.

Defendant cites to Fisher v. Holt (1977), 52 Ill. App. 3d 164, 367 N.E.2d 370, as support for his position, but we find it to be factually distinguishable. Fisher was a suit for possession of an apartment for nonpayment of rent. Defendant filed a counterclaim which raised the question of whether she owed rent. Thus, the counterclaim raised an issue over whether the plaintiff was entitled to possession. The Fisher court found this claim to be germane to the claim for possession based on the nonpayment of rent. (Fisher, 52 Ill. App. 3d at 166, 367 N.E.2d at 371.) The present case is different because, as indicated, the parties were not at issue over whether plaintiffs were entitled to possession. That issue had been removed by the pleadings. Without an issue over the possession of the coach house, the counterclaim was not germane to the distinct purpose of forcible detainer proceeding.

Defendant’s final contention is that he is entitled to an award of attorney fees on appeal because he was forced to take this appeal from a judgment which was based on the “sparse facts and misstated law” presented by plaintiffs. Plaintiffs also request an award of fees, claiming that defendant brought this appeal without any legal basis and in bad faith. We find no basis for an award of fees to either defendant or plaintiffs.

An award of fees on appeal is authorized by section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). (See Aroonsakul v. Flanagan (1987), 155 Ill. App. 3d 223, 229-30, 507 N.E.2d 1, 15-16.) An award of fees is warranted where the appeal is without any legal basis (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 505 N.E.2d 387) or is brought in bad faith. (Aroonsakul v. Flanagan (1987), 155 Ill. App. 3d 223, 507 N.E.2d 1; Manchester Insurance & Indemnity Co. v. Strom (1970), 122 Ill. App. 2d 183, 258 N.E.2d 150.) A determination that a party’s arguments are unavailing is not equivalent to finding that they are without legal basis. Davis v. Chicago Housing Authority (1988), 176 Ill. App. 3d 976, 986, 531 N.E.2d 1018, 1025.

Defendant’s claim for fees must fail because we have sustained the trial court’s judgment on the basis of the same facts and law presented to that court. Plaintiffs’ claim for fees fails, even though we have ruled against defendant, because we cannot characterize the position he took as devoid of any arguable legal support. Although defendant’s arguments were unavailing, they were not the types of arguments which would warrant the sanction of attorney fees. (E.g., Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 505 N.E.2d 387.) Additionally, our review of the record does not reveal any evidence of bad faith so as to warrant an award of fees on appeal. See Aroonsakul v. Flanagan (1987), 155 Ill. App. 3d 223, 507 N.E.2d 1.

In addition to the issues raised by this appeal, plaintiffs have urged this court to determine whether defendant was otherwise barred, under the doctrine of res judicata, from bringing his counterclaim by virtue of the agreed order to dismiss his chancery proceeding with prejudice. Since we have concluded that the counterclaim was never properly before the trial court and, further, was not germane to the distinct purpose of a forcible detainer proceeding, we need not make this determination.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

COCCIA, P.J., and LORENZ, J., concur.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    JOHN W. HOUGH, Plaintiff-Appellant, v. JACK OSSWALD, Defendant-Appellee (Robert P. Howington, Jr., Plaintiff).
    First District (5th Division)
    No. 1—89—1327
    Opinion filed May 18, 1990.

      John W. Hough, of Hough, Weatherhead & Kins ella, of Chicago, for appellant.
    Jack Osswald, of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

John W. Hough (Hough), a plaintiff, appeals from a judgment in the amount of $57,524.18 in an action stemming from an arbitration award. The trial court’s action involved was an appeal under the Uniform Arbitration Act (Ill. Rev. Stat. 1985, ch. 10, par. 101). The facts are as follows.

Hough and Robert P. Howington, Jr., plaintiffs below, and Jack Osswald (Osswald), defendant, entered into a law partnership agreement in May of 1980. The partnership agreement provided for resolution of disputes by arbitration. In October of 1984 Osswald was ousted from the firm. Osswald filed a claim for arbitration. Hearings on Osswald’s claim were held by the arbitrator for 21 days during January and February. The arbitrator concluded that Hough and Howington owed Osswald $57,524.18,

In a second amended complaint Hough and Howington charged Osswald, not the arbitrator, with fraudulent conduct. However, Hough and Howington charged that as a consequence of such conduct the award of the arbitrator was procured by Osswald’s fraud or undue means. The trial court dismissed the second amended complaint, holding that allegations of fraud and deception by one of the parties is not a basis for an appeal under the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1985, ch. 10, par. 101 et seq.). The court thereupon entered judgment on the award. Only Hough has appealed from the trial court’s final order.

On appeal Hough argues that the provisions of the Uniform Arbitration Act provided for relief when one of the parties has procured an award through undue means, such as wrongful concealment and deception. We agree with Hough’s statement as a general proposition but must affirm the trial court’s action for the following reason.

The Illinois Uniform Arbitration Act reads in part:

“Upon application of a party, a court shall vacate an award where:
(1) The award was procured by corruption, fraud or other undue means ***.” Ill. Rev. Stat. 1985, ch. 10, par. 112(a).

The object of arbitration is to avoid the formalities, delay and expenses of litigation in court. Judicial review of an arbitrator’s award is more limited than an appellate review of a trial court’s decision. (Garver v. Ferguson (1979), 76 Ill. 2d 1, 389 N.E.2d 1181.) Whenever possible a court must construe an award so as to uphold its validity, and gross errors of judgment or a gross mistake of fact will not serve to vitiate the award unless those mistakes or errors are apparent on the face of the award. (Seither & Cherry Co. v. Illinois Bank Building Corp. (1981), 95 Ill. App. 3d 191, 419 N.E.2d 940.) A decision of an arbitrator acting within the powers granted to him by an agreement is final and is not reviewable unless the party attacking the decision can demonstrate partiality or fraud on the part of the arbitrator. Fredman Brothers Furniture Co. v. Retail Store Employees Union, Local 575 (1979), 70 Ill. App. 3d 518, 388 N.E.2d 849.

These well-settled rules require this court to affirm the trial court, which followed these settled principles in dismissing Hough’s second amended complaint. Paragraph 31 of the partnership agreement involved in this case provided for the very arbitration Hough now attacks. The partnership agreement provides “its [arbitrator’s] decision shall be final and binding on all parties. Judgment may be entered on the award.”

Furthermore, the plaintiff even stated in the record, “I want to keep it on the record that I didn’t think the arbitrator engaged in any wrongdoing.” The only Illinois case cited by Hough in support of his contention that a trial court can set aside an arbitration award procured by the fraud of a party to the arbitration under the review provision of the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1985, ch. 110, par. 112(a)) is Rosee v. Board of Trade (1976), 43 Ill. App. 3d 203, 356 N.E.2d 1012, cert. denied (1977), 434 U.S. 837, 54 L. Ed. 2d 99, 98 S. Ct. 127. That case does not appear to be a case involving review of an arbitration award under the Illinois Uniform Arbitration Act. It involved a lengthy and complicated review of a trial court’s judgment in a case in which the trial court awarded damages and exemplary damages in a case involving an alleged fraudulent conspiracy between arbitrators and parties to the arbitration. Rather than supporting Hough’s position, Rosee reenforces the decision of the trial court in this case by stating in its opinion:

“Reasoning from the premise that the members of the Arbitration Committee and officials of the Board of Trade were not guilty of any conspiracy, partiality of other misconduct, it follows necessarily that the award should have all the force of any other legal adjudication so as to preclude the parties thereto from further litigation upon the same matters.” Rosee v. Board of Trade (1976), 43 Ill. App. 3d 203, 240, 356 N.E.2d 1012, 1037, cert. denied (1977), 434 U.S. 837, 54 L. Ed. 2d 99, 98 S. Ct. 127.

Hough and Howington’s complaint in this case was brought pursuant to sections 12 and 13 of the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1985, ch. 10, pars. 112, 113.) It was not an action against Osswald for fraudulent deceit. Thus, absent (1) any allegations of fraud or wrongdoing on the part of the arbitrator, and in light of (2) the admission by plaintiff of no wrongdoing on the part of the arbitrator, and (3) no error or fraud or mistake appearing on the face of the arbitrator’s award, the trial court properly dismissed the complaint and entered judgment on the arbitral award.

Hough forcefully argues New Jersey law as a basis for overturning the trial court’s decision. In New Jersey the Uniform Arbitration Act has been applied to a case where the employer, a party to the arbitration proceeding, intentionally withheld records. (Teamsters Local Union 11 v. Abad (1975), 135 N.J. Super. 552, 343 A.2d 804, rev’d on other grounds Teamsters Local Union No. 11 v. Abad (1976), 144 N.J. Super. 239, 365 A.2d 209.) We feel we must follow settled Illinois law until it has been changed by the Illinois Supreme Court or the State legislature.

For the above reasons, we affirm.

Judgment affirmed.

COCCIA, P.J., and GORDON, J., concur.


author: JUSTICE McNAMARA

text:
    MARK J. CONTRERAS et al., Plaintiffs-Appellants, v. CITIBANK (South Dakota) et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—88—3088
    Opinion filed May 18, 1990.

      Onesto, Giglio, Meltreger & Associates, of Chicago, for appellants.
    O’Connor & Schiff, of Chicago, and Donald S. Rothschild, of Oak Park, for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs Mark J. Contreras, Donna A. Contreras and Robert Schmidt brought a class action against defendants Citibank (South Dakota), Wilk & Waller, Randy Kadet, Scott Marks, Marilyn Kadet and Accurate Process Service, alleging fraudulent conduct relating to the collection, in separate proceedings, of delinquent credit card accounts. The trial court dismissed the complaint on the basis that it had no jurisdiction to declare the collection judgments void in this proceeding. Plaintiffs contend on appeal that the trial court had jurisdiction to declare the judgments void; that the court-appointed process servers acted under color of law; that plaintiffs sufficiently pled conspiracy; that they sufficiently pled fraud and a violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121½, par. 261 et seq.); that there is a private right of action under the false affidavit of service statute and the wrongful wage deduction statute; and that they sufficiently pled negligent hiring.

The complaint alleges that the Contrerases held accounts with Citibank, and incurred debts to Citibank, which initiated collection actions on April 21, 1987, in the municipal division under the case name Citibank v. Contreras. The complaint further alleges that on May 27, 1987, the sheriff of Cook County returned the summons with an affidavit stating he was unable to serve the Contrerases.

On June 29, 1987, Wilk & Waller, a private process server acting on behalf of Citibank, had the clerk of the court issue an alias summons with a return date of August 11, 1987. It also set for hearing on July 13, 1987, an ex parte motion for appointment of Randy Kadet as special process server. Subsequently, Kadet prepared a false affidavit of service indicating he made substitute service on a Ms. Contreras, a female Hispanic, approximately 30 years of age, at 2300 North Mango, Chicago, on July 13, 1987, at 7:27 p.m. Marilyn Kadet notarized the affidavit, dated July 13, 1987. Randy Kadet returned the affidavit and alias summons to Wilk & Waller. On July 2, 1987, Wilk & Waller filed the papers, which showed the false service date of July 13, 1987, with the clerk of the court.

On July 13, 1987, the court appointed Randy Kadet as special process server. On August 11, 1987, a default was entered against the Contrerases. On August 25, 1987, judgment was entered against them on the default in the amount of $1,350.95 plus costs. On September 1, 1987, Wilk & Waller filed an affidavit for a wage deduction order, and the clerk of the court issued a wage deduction summons to Mark Contreras’ employer, the United States Post Office. On October 30, 1987, the employer withheld his wages.

In regard to Robert Schmidt, Wilk & Waller filed an action against him on behalf of Citibank on January 13, 1987, for collection of the balance outstanding on a VISA account. On February 23, 1987, the sheriff of Cook County returned the summons with an affidavit stating he could not serve it. On March 25, 1987, Wilk & Waller had the clerk of the court issue an alias summons with a return date of May 5, 1987. On April 3, 1987, Wilk & Waller set for hearing on April 10, 1987, an ex parte motion for appointment of Randy Kadet as special process server.

Subsequently, Kadet prepared a false affidavit of service indicating he made substitute service on a Mr. Schmidt, a white male, approximately 35 years of age, at 4304 North Francisco, Chicago, on April 10, 1987, at 6:05 p.m. Marilyn Kadet notarized the affidavit and dated it April 10, 1987.

At 11:20 a.m. on April 10, 1987, Wilk & Waller filed the alias summons and false affidavit with the clerk of the court. At 1:45 p.m. that day, Wilk & Waller had the court appoint Kadet as special process server.

On May 5, 1987, a default was entered against Schmidt. On May 19, 1987, judgment was entered on the default in the amount of $1,711.40 plus costs. On May 27, 1987, Wilk & Waller filed an affidavit for wage deduction order. The court issued a wage deduction summons to Schmidt’s employer, the Chicago Park District, returnable on August 26, 1987.

The record includes a July 10, 1987, release of judgment filed by Wilk & Waller for Citibank, stating it had “received full satisfaction and payment” from Schmidt. On August 18, 1987, a stipulation to dismiss the garnishment was filed. On August 26, 1987, conditional judgment was entered against the Chicago Park District in the amount of $1,821.76. Schmidt does not allege in either complaint that his wages were ever in fact garnished.

Plaintiffs’ motion for leave to take discovery on the class stated that in reviewing 300 of the 1,500 collection cases filed in Cook County in 1987 by Wilk & Waller on behalf of Citibank, they discovered 34 cases in which the affidavit of service was filed on a date and time well in advance of the date and time of purported service.

In Citibank v. Contreras, on September 24, 1987, pursuant to section 2—1301(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1301(e)), the Contrerases filed a motion to vacate the judgment entered against them on August 25, 1987. A hearing on the motion to vacate was set for October 1, 1987, and was continued to October 15. The Contrerases also filed a special and limited appearance, a motion to quash service of summons, and a petition for a rule to show cause on the private process server under section 2—203 of the Code of Civil Procedure.

On October 13, 1987, the Contrerases moved for leave to withdraw the petition for a rule to show cause and filed an amended motion to quash. On October 15, 1987, at 1:18 p.m., they filed the present suit in the chancery division.

On the same day, at 2 p.m., the Contrerases appeared in the municipal division regarding Citibank v. Contreras and offered to pay Citibank the outstanding balance in full, as settlement and release of the Citibank v. Contreras action. Citibank accepted payment on the same day. The Contrerases then tendered a typewritten agreed order dismissing Citibank v. Contreras and withdrew all previously filed motions in that case.

Defendants in the present suit filed a motion to strike and dismiss all counts of the complaint. On December 2, 1987, Wilk & Waller filed a motion to disqualify plaintiffs’ attorney and a motion to dismiss based on the argument that on October 1, 1987, the Contrerases submitted to the jurisdiction of the municipal division in Citibank v. Contreras, and later settled the suit, and were therefore disqualified as representatives of the class.

On January 27, 1988, an order was entered stating that the “court sua sponte dismissed plaintiffs’ complaint.” The court found it had no jurisdiction to vacate the judgments in the underlying actions and declare them void. The court stated:

“While certain issue[s] are asserted which relate to jurisdiction, they relate to jurisdiction by means of perpetuating the fraud. Moreover, this is not a Court of Appeals, and neither party has addressed the propriety of a collateral attack on the judgments obtained in the Municipal Court. This Court concludes, therefore, that the plaintiff is not barred from asserting the facts presented as they related to the scheme of fraud, but the plaintiffs cannot ask this court to vacate the judgments in the Municipal Court or declare them void. The remedy, therefore, is dismissal pursuant to the Illinois Code of Civil Procedure, section 2—615, with leave to amend. This Court will dismiss the complaint sua sponte pursuant to 2—615.”

On March 29, 1988, the court denied plaintiff’s motion for reconsideration, finding that a section 2—1401 petition for relief from judgment should have been filed in the same proceeding in which the order of judgment was entered. The court stated: “In dismissing this matter previously, this court made clear that it’s not to be substituted as a court of review. That is not its proper role.”

In this class action, count I of the original complaint sought a declaratory judgment pursuant to section 2—701 (Ill. Rev. Stat. 1987, ch. 110, par. 2—701), declaring the default judgments void. Count II alleged conspiracy to violate civil rights by summarily denying due process of law and notice of the collection suits, in violation of 42 U.S.C. section 1983 (1986). Count III alleged a violation of the class members’ civil rights. Count IV alleged common law fraud. Count V alleged a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. Count VI alleged an implied cause of action under section 2-203 (Ill. Rev. Stat. 1987, ch. 110, par. 2-203(c)). Count VII alleged a private cause of action under section 12—817 (Ill. Rev. Stat. 1987, ch. 110, par. 12—817). Count VIII alleged negligent hiring and failure to supervise. All counts sought a return of all moneys obtained as a result of the void judgments, plus compensatory and punitive damages.

On April 12, 1988, plaintiffs filed an amended complaint excluding count I, which sought a declaration in chancery that multiple municipal judgments were void. Each defendant filed a motion to strike and dismiss the first amended complaint.

On July 26, 1988, the first amended complaint was dismissed with leave to amend. The court addressed each count in the amended complaint. As to counts I and II, the court found plaintiffs failed to sufficiently allege State action. Counts III and IV alleging fraud were deficient because they failed to sufficiently allege defendants’ intent that plaintiffs rely on their misrepresentations, and failed to plead damages. Count V was dismissed because there was no separate cause of action under section 2—603. Count VI was dismissed because section 12—208 could not be used where plaintiffs admitted their indebtedness to Citibank. Count VII alleging negligent hiring and supervision contained only conclusory statements and insufficient facts. The court then stated its alternative reason for dismissing the complaint:

“Although plaintiffs argue otherwise, this court has determined that by way of the nature of the relief prayed for, returning sums obtained through the ‘void’ judgments, plaintiff continues to ask this court for relief which it is not empowered to grant. That is a determination that the default judgments rendered in the municipal division are void. This is akin to vacating the judgments. *** Once more, *** I am going to grant you the right to file a second amended complaint to see if you can meet muster. This case, if you can meet muster, should be transferred to the court of original jurisdiction wherein the judgments were entered.”

On December 1, 1988, plaintiffs chose to stand on the amended complaint, and the court allowed the election to stand as to count I of the original complaint and as to all counts in the first amended complaint.

Plaintiffs contend that the chancery division of the trial court erred in concluding it had no power to vacate or declare void a judgment of the municipal division. Plaintiffs maintain the judgments in the underlying actions are void and that void judgments are subject to collateral attack at any time, in any court. Plaintiffs argue that the judgments are void because there was no personal jurisdiction, since they were never actually served, and because the judgments were procured through fraud.

Everything in this action is based on the judgments entered in the underlying suits. Plaintiffs seek to have those judgments declared void. Each count in their complaint asks for relief involving those judgments. The complaint seeks to compel Citibank and Wilk & Waller to return any money obtained as a result of “said void judgments,” and award the class $2,500,000 in compensatory damages and $5 million in punitive damages. The trial court properly explained that “plaintiffs paid the judgment voluntarily [in one court] yet seek to recoup the funds paid by having the judgment declared void” in another court. The record shows that the Contrerases paid the debt to defendant in full. The July 10, 1987, release of judgment for Schmidt’s debt states that “full satisfaction and payment” was made to defendant. The trial court noted at the January 27, 1988, hearing on the motion to dismiss the complaint that as to Schmidt, “[j]ust like in the Contreras situation, a default judgment and wage garnishment followed, although the garnishment was dismissed on August 18, 1987.” At the July 26, 1988, hearing on the motion to dismiss the first amended complaint, the court stated that the “named plaintiffs have excluded themselves from the return of any monies by Citibank and Wilk and Waller because they negotiated a settlement of Citibank’s claim against them.”

The simple answer is that plaintiffs should have made that attack in the underlying suits instead of bringing this separate action. Instead, the municipal division heard the Contrerases’ (defendants in that case) motion to vacate the default judgment. The court repeatedly asked plaintiffs’ counsel if there was a meritorious defense. Counsel refused to answer the question, insisting that the only question was whether the service of process affidavits were false. The court continued the case to permit plaintiffs to offer some proof that the affidavits were false. Instead, the Contrerases voluntarily paid the judgment. Schmidt’s judgment was also paid, and he has alleged no meritorious defense.

Relief from a judgment entered in the trial court may be obtained under either section 2—1301(e) of the Code of Civil Procedure (within 30 days of entry of judgment), or under section 2—1401 of the Code of Civil Procedure (after 30 days but before two years have passed). (Ill. Rev. Stat. 1987, ch. 110, pars. 2—1301(e), 2—1401.) Moreover, where a party seeks to contest personal jurisdiction, he must enter a special and limited appearance under section 2—301 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2—301.) This special appearance may be made after a judgment has been entered, thereby rendering the judgment void. LaMotte v. Constantine (1980), 92 Ill. App. 3d 216, 416 N.E.2d 23; Washington v. Clayter (1980), 91 Ill. App. 3d 489, 414 N.E.2d 1085.

Here, plaintiffs appeared in the underlying actions, and entered into settlement agreements, and the court released them from the default judgments. On October 15, 1987, the Contrerases filed the present suit attacking and seeking relief from the underlying judgment. Less than an hour later, in the municipal division they opted to abandon their motion to vacate under section 2—1301, and entered an agreed order of settlement. In effect, the three named plaintiffs asked the chancery division to review the municipal division’s action. We find no law permitting such a review.

Plaintiffs are not seeking to enforce the judgments in the underlying suits. Instead, they are seeking to sidestep the municipal division’s decisions in regard to the default judgments by going over to chancery, as an alternate forum. Plaintiffs’ attempt to rely on collateral attack here is merely forum shopping, which is not permitted under the law. Ill. Rev. Stat. 1987, ch. 110, par. 2—1002; Balciunas v. Duff (1983), 94 Ill. 2d 176, 446 N.E.2d 242.

Thus, we agree with the trial court’s interpretation of the scope of collateral attack. Plaintiffs may not use collateral attack to circumvent the requirements of sections 2—1301, 2—1401 and 2—301 of the Code of Civil Procedure. The chancery division was without power to vacate the municipal division’s judgments.

In view of our holding, it is unnecessary to address plaintiffs’ arguments that the various counts of the complaint were not subject to dismissal under section 2—615.

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

Judgment affirmed.

EGAN and RAKOWSKI, JJ., concur.

       Justice William Quinlan participated in the above entitled cause prior to his resignation. Justice Thomas Rakowski was designated the third member of the panel and has read the briefs and listened to the tapes of oral argument.


author: JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICO TORRES, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—3427
    Opinion filed May 18, 1990.

      Elliot Samuels, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Walter Hehner, and Michael G. Rogers, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Following a jury trial, defendant Frederico Torres was found guilty of possession of a controlled substance with intent to deliver and sentenced to five years in prison. He appeals.

On appeal, defendant argues that: (1) the trial court erred in denying a motion to suppress statements he made prior to Miranda warnings; (2) juror responses during voir dire unfairly prejudiced the defendant by tainting those other veniremen present who later comprised the jury; (3) the trial court erred by admitting improper rebuttal evidence; and (4) the State failed to prove the defendant’s guilt beyond a reasonable doubt. We affirm.

The facts are these. Torres was arrested on March 19, 1987, when a Chicago police officer acting pursuant to a warrant conducted a search of his home and recovered cocaine.

During the search, Torres made a statement accepting responsibility for the narcotics found. He filed a motion to suppress the statement contending that he was held in his home, not free to leave and that police interrogated him without advising him- of his Miranda rights.

Police officer Moran, the only witness at the suppression hearing, stated that some civilians including the defendant were held in the living room during the search. None were free to leave. After Moran found narcotics, Torres made a statement. Moran then gave Torres his Miranda warnings in the form of questions, and Torres answered yes to each one. Afterwards, Torres asked if he could make an additional statement. On cross-examination, Moran admitted that his written report on the search and arrest did not mention the Miranda warnings.

At trial, as prospective jurors were examined, the judge asked 37 candidates if they had any strong feelings about drugs which would interfere with their ability to serve. Eleven responded with negative views based on personal experience with family members or friends and were excused. No record was kept as defendant had waived a court reporter during voir dire. Defendant moved for a mistrial on the grounds that these remarks, made in the presence of other veniremen, tainted the selected jury. The court denied the motion.

The State’s first witness was police officer John Moran. He testified that on March 19, 1987, he and other officers executed a search warrant for the home of “Carmen” at 2751 N. Artesian, Chicago, Illinois. Prior to conducting the search, the officers centralized and neutralized the civilians present in the living room. This group included defendant Frederico Torres and his wife, Carmen.

Moran then searched the premises. In the pantry, he found two scales of the kind commonly used to bag cocaine, some papers which showed defendant’s residence as the premises, and paint rollers containing bags of a white substance which field tested as cocaine. The officers collected these items in the dining room and told their sergeant that the warrant was “positive.” According to Moran, Torres then told the police that the narcotics were his, not his wife’s or anybody else’s from the house.

Next, Moran testified, he looked at the front bedroom of the first floor and saw a canopy bed and a closet with girl’s clothes. In the rear bedroom, he saw a closet with clothes for an adult man and woman. He searched under the carpet and linoleum of the rear bedroom and uncovered $13,680 (or $14,680, the record is unclear) in bills ranging from hundreds to fives.

At that point, Moran was about to place Carmen Torres under arrest and had begun advising her of her Miranda rights. He testified that Frederico Torres once again stated that the drugs were his, not his wife’s, and he would take responsibility.

According to Moran’s partner, Bill Szeczepaniak, Moran then read the Miranda rights to defendant Torres and asked him if he understood. Torres said he did and, for a third time, told Moran that the drugs and money in the house were his.

Then Moran placed Torres under arrest. Moran stated he did not arrest Mrs. Torres since Mr. Torres had admitted responsibility, and the police did not want to arrest both parents while small children were left in the home.

At the end of the State’s case, the parties stipulated that the substance found in the Torres pantry was 12.5 grams of cocaine.

Defendant Torres testified that he lived at the Artesian address with his wife, five children, and two other adults. He denied having ever seen cocaine in the home. He claimed he had not entered the pantry for two years and did not sleep in the downstairs bedroom where the money was found. At one point, he admitted seeing the small scale in someone else’s possession but later he denied having ever seen it.

Torres testified further that he spoke to the police when they were going to arrest his wife, saying:

“I’m the man of the house, I control the house.
* * *
I told officers I cannot let [them] arrest my wife because I’m supposed to be responsible in the house and if they [are] going to arrest somebody to take me in.”

Torres also testified that he had no knowledge of where large sums of money were hidden in the house. He explained that he had sold a building and given $8,500 in cash to his wife. He also gave her $10, $20, and $50 bills from his weekly paychecks. He stated that the money had been found in his daughter’s bedroom.

The State then recalled Officer Moran as a rebuttal witness. Moran testified that five of the bills recovered from the Torres home were marked bills which had been used in police drug transactions on December 9 and December 19, 1986. On both occasions, an undercover officer drove near defendant’s home and sent a buyer in for drugs. On both occasions, the buyer returned to the police with the drugs, received the marked money, and rode away in the car with the undercover officer. Five of the bills recovered from the Torres home matched the serial numbers in police records of cash used in these two drug buys.

I

Torres first asserts that the trial court erred in denying his motion to suppress statements made during the police search of his home.

Rulings on suppression motions are based primarily on factual determinations and will not be reversed on appeal unless manifestly erroneous or against the manifest weight of the evidence. (People v. Mallett (1970), 45 Ill. 2d 388, 395-96, 259 N.E.2d 241, 245.) Questions concerning credibility which must be resolved to determine a suppression motion are for the trier of fact. People v. Davis (1983), 97 Ill. 2d 1, 20, 452 N.E.2d 525, 534.

In Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, the Supreme Court set forth rules of procedure applicable to interrogations in custodial settings. These rules apply whenever there is “questioning *** by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612.

Defendant argues that once contraband was discovered Miranda warnings should have been given and that any statement made prior to the warnings should be suppressed. He reasons that he was in a custodial setting, held in the living room while police searched his home. We disagree. Torres had simply been detained during a proper search of his home. Michigan v. Summers (1981), 452 U.S. 692, 694, 69 L. Ed. 2d 340, 344, 101 S. Ct. 2587, 2590.

Nonetheless, assuming arguendo that a custodial situation did exist, Miranda protections are not triggered unless there is also “questioning by law enforcement officers.” The important issue is not whether an individual in custody can talk to the police without counsel but whether he can bp interrogated. (Miranda, 384 U.S. at 478, 16 L. Ed. 2d at 726, 86 S. Ct. at 1630.) Even for defendants in custody “[volunteered statements of any kind are not barred by the Fifth Amendment.” Miranda, 384 U.S. at 478, 16 L. Ed. 2d at 726, 86 S. Ct. at 1630; see also People v. Shelton (1969), 42 Ill. 2d 490, 492, 248 N.E.2d 65, 67; People v. Hill (1968), 39 Ill. 2d 125, 130-31, 233 N.E.2d 367, 371.

Defendant cites three cases for the proposition that the State may not use statements elicited by the police in the absence of Miranda warnings. (People v. Hentz (1979), 75 Ill. App. 3d 526, 530-31, 394 N.E.2d 586, 589; People v. Szerletich (1980), 86 Ill. App. 3d 1121, 1129, 408 N.E.2d 1098, 1103; People v. Roundtree (1985), 135 Ill. App. 3d 1075, 1080, 482 N.E.2d 693, 697.) Torres also cites People v. Levendoski (1981), 100 Ill. App. 3d 755, 759, 426 N.E.2d 1241, 1243, for the proposition that even if the police have not asked direct questions, they must give Miranda warnings before using words or actions “reasonably likely to elicit an incriminating response from the suspect.”

These cases do not apply to statements which are volunteered by defendants. In Hentz, Szerletich, and Roundtree, police directly questioned the defendant. In Levendoski, a defendant already in custody for one offense was brought to speak to the sheriff about another.

In this case, Torres made two unelicited statements. At the time of the first statement, police had just told the sergeant they had a “positive” warrant. At the time of the second statement, police were talking to Torres’ wife. It is likely, as Torres argues, that he had a natural interest in protecting his. home and wife. However, the protection of Miranda does not exclude statements simply because of the defendant’s motives in making them.

Furthermore, Torres also made a third statement after police had read him his Miranda rights. Officer Moran testified to this at the suppression hearing and at trial. Such statements are properly admitted even if the defendant had previously given inadmissible statements. Oregon v. Elstad (1985), 470 U.S. 298, 314, 84 L. Ed. 2d 222, 235, 105 S. Ct. 1285, 1296.

In sum, of the three statements which Torres would now like to suppress, two were made gratuitously by defendant and one was made after proper Miranda warnings. Therefore, we find that the trial court’s decision was not manifestly erroneous or against the manifest weight of the evidence when it-denied defendant’s motion to suppress.

II

Next Torres contends that the trial court erred in denying defendant’s motion for mistrial on the grounds that negative comments about drugs made by some veniremen during voir dire tainted the disposition of other veniremen who eventually made up the jury.

After voir dire defendant moved for a mistrial. The court denied the motion because the inquiry about juror experience with drugs had been made for the benefit of defendant.

Torres argues the general proposition that nothing should be considered against a defendant except competent evidence. He relies on People v. Rivers (1951), 410 Ill. 410, 416-19, 102 N.E.2d 303, 306-07.

It should first be noted that defendant does not cite any authority for the proposition that answers given by excluded veniremen during voir dire are items that improperly influence a jury. People v. Rivers is not on point.

Second, the defendant had waived a court reporter during voir dire and, consequently, did not preserve the record which an appellant must have to challenge jury selection on appeal. (People v. McCoy (1987), 156 Ill. App. 3d 194, 198-99, 509 N.E.2d 567, 569-70.) Since appeals involving the propriety of voir dire are factual in nature, it is impossible to review them without a record. (People v. Prante (1986), 147 Ill. App. 3d 1039, 1063, 498 N.E.2d 889, 905.) Furthermore, the responsibility for preserving this record rests on the appellant. People v. Edwards (1978), 74 Ill. 2d 1, 6, 383 N.E.2d 944, 947.

In this case, no record was kept during jury selection. There is not any evidence that the trial court was unfair in its selection procedure. Therefore we find that the trial court did not err in denying defendant’s motion for mistrial.

Ill

Third, Torres claims that the trial court erred by allowing rebuttal evidence that was improperly admitted and unduly prejudicial.

Proper rebuttal evidence answers or contradicts affirmative matters raised by the defense in its case in chief. (People v. Harvey (1980), 92 Ill. App. 3d 465, 470, 415 N.E.2d 1161, 1165.) Where the defendant’s defense rests on his own credibility, rebuttal evidence that is offered or impeachment must rebut the defendant’s testimony. (People v. Sepka (1977), 51 Ill. App. 3d 244, 261, 367 N.E.2d 138, 151.) What constitutes proper rebuttal evidence is a matter of discretion for the trial court and ordinarily will not be set aside on review. (People v. Waller (1977), 67 Ill. 2d 381, 387, 367 N.E.2d 1283, 1286.) Furthermore, the determination of whether the prejudicial impact of evidence outweighs its probative value is “a matter within the sound discretion of the trial court.” People v. Rader (1988), 178 Ill. App. 3d 453, 464, 532 N.E.2d 1365, 1371.

In this case, Torres contends that rebuttal evidence was both improper and unduly prejudicial. Officer Moran testified that five of the bills found in the Torres home were marked bills from police drug buys. Torres claims that this evidence did not contradict any of his testimony. During his case in chief, he had admitted giving his wife money from a building sale and from his weekly paychecks, but he denied knowing whether the money found in the rear bedroom was that money.

Torres relies on Sepka (51 Ill. App. 3d at 260-61, 367 N.E.2d at 150-51). We disagree. In Sepka, police officer defendants testified they believed that a woman named Carol was also known to them as a prostitute named Ann Bloomgardner. The rebuttal witness testified that no one named Ann Bloomgardner had ever been arrested for prostitution. The court held that the rebuttal evidence spoke to whether or not anyone named Ann Bloomgardner had ever been arrested for prostitution while the officers had only testified that they believed the woman named Carol was a prostitute named Ann Bloomgardner. In short, the evidence offered in rebuttal about the arrest record did not in fact rebut anything offered by the defendants about their belief.

The State counters that Torres did admit he knew money was hidden in the house and clearly implied that it came from legitimate sources. He admitted giving his wife $8,500 in cash from a building sale and $10, $20, and $50 bills from his weekly paychecks. He stated that she had hidden this cash, but he did not know where. This testimony, the State claims, implied that the money in the house came from legitimate sources.

While it is true that Torres’ testimony did not directly state that all of the money recovered had come from legitimate sources, it certainly can be argued that such an inference did flow from defendant’s testimony regarding the sources of the cash. Defendant was charged with possession of a controlled substance with the intent to deliver. No one would deny that $14,000 in cash found in a bedroom under the carpet is damaging evidence indeed. Torres did not object to the introduction of this money into evidence. Rather, he created an inference that some or all of the money was from a source other than drug trafficking. Under these circumstances, we believe the State had the right to attempt to dispel that inference.

Officer Moran’s testimony about the marked bills did contradict Torres’ implication that some or all money in the house came from legitimate sources. Moran’s testimony did not prove that Torres himself had conducted the drug deals with the marked money. But the weight of the evidence is a question for the jury, not a reason for exclusion. Moreover, we find the trial court’s decision that the probative value of this evidence outweighed its prejudicial impact was not an abuse of discretion and, therefore, not error.

IV

Defendant’s fourth issue is that the State failed to prove beyond a reasonable doubt that Torres was guilty of possession of a controlled substance with the intent to deliver.

To prove a defendant guilty of possession, the State must prove that the defendant knew of the presence of the substance and that the substance was in his immediate and exclusive control. (People v. Trask (1988), 167 Ill. App. 3d 694, 707, 521 N.E.2d 1222, 1231, citing People v. Nettles (1961), 23 Ill. 2d 306, 307, 178 N.E.2d 361, 362.) When the State proves that a controlled substance was “found on premises under the control of a defendant, this fact *** gives rise to an inference of knowledge and possession by defendant which may be sufficient to sustain a conviction for unlawful possession.” Trask, 167 Ill. App. 3d at 707, 521 N.E.2d at 1231.

On review, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.

Defendant contends that the most telling pieces of evidence against him are the self-incriminating statements and rebuttal testimony which he tried to exclude. Further, he argues, even with this testimony, the State has not proved his guilt beyond a reasonable doubt.

The police search of defendant’s home yielded 12.5 grams of cocaine, two scales for weighing drugs, and roughly $14,000 in cash including the marked bills. Papers found in the home indicated that defendant lived there. He had easy access to the places where drugs, scales, and cash were found. He even told the police that the drugs were his.

In sum, viewed in the light most favorable to the prosecution, the evidence here would allow a rational trier of fact to find defendant guilty.

For these reasons, we affirm the judgment of the circuit court of Cook County. As part of our judgment, we grant the State’s request and assess defendant $50 as costs for this appeal and $25 as costs for the oral argument.

Judgment affirmed.

McNAMARA and EGAN, JJ., concur.


author: JUSTICE EGAN

text:
    JENNIE SAUNDERS, Plaintiff-Appellant, v. THE DEPARTMENT OF PUBLIC AID et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—0312
    Opinion filed May 18, 1990.

      Mary D. Aversano, of Grabowski & Clutts, of Evanston, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (William D. Leslie, Special Assistant Attorney General, of counsel), for appellees.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Jennie Saunders, appeals from a judgment of the circuit court dismissing her complaint for administrative review of a decision by the defendants, the Illinois Department of Public Aid (Department) and the Director of the Department.

On December 7, 1987, the plaintiff filed a request for medical assistance with the Department. On February 11, 1988, the defendants denied the plaintiff’s request due to an alleged lack of cooperation in disclosure and verification of income by the plaintiff.

On April 11, 1988, the plaintiff filed an administrative notice to appeal; a hearing was conducted on May 27, 1988; and on June 6, the defendants affirmed the denial of the plaintiff’s request in a final administrative decision. The plaintiff filed a complaint for administrative review of the Department’s decision on July 14, 1988. Ill. Rev. Stat. 1985, ch. 110, par. 3—101 et seq.

The defendants moved to dismiss the complaint contending that it had been filed beyond the 35-day period for judicial review of administrative decisions. (Ill. Rev. Stat. 1985, ch. 110, par. 3—103.) After a hearing the judge dismissed the complaint on the ground that it was not timely filed. He subsequently denied the plaintiff’s motion to reconsider. The plaintiff contends that the judge’s finding is not supported by the evidence.

The statute in issue provides, in part, as follows:

“Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby. *** [A] decision shall be deemed to have been served either when personally delivered or when deposited in the United States mail, in a sealed envelope or package, with postage prepaid, addressed to the party affected thereby at his or her last known residence or place of business.” Ill. Rev. Stat. 1987, ch. 110, par. 3-103.

The defendants claimed in their motion to dismiss that the decision was mailed to the plaintiff and to her attorney on January 6, 1988, and that the complaint was filed 39 days later. In support of the motion the defendants attached a certificate of mailing of a Department employee, Zina Bland, in which she swore that copies of the decision “were placed in separate envelopes addressed to” the defendant and her lawyer and were deposited in the mail by Bland “in the regular course of her duties as Clerk II employed by the Illinois Department of Public Aid.”

In her response to the motion to dismiss, the plaintiff contended that Bland’s certificate of mailing was false. In support of that contention the plaintiff attached a memorandum that the Department had prepared in an unrelated circuit court case. In that unrelated case the Department had submitted affidavits of three employees of the Department describing the procedure used by the Department on March 17,1988, in mailing administrative decisions.

The defendants filed a reply memorandum in support of their motion and included an affidavit of Zina Bland which is as follows:

“1) On June 6, 1988, I was employed as a Clerk II by the Illinois Department of Public Aid (TDPA’) at 624 South Michigan Avenue, Chicago, Illinois.
2) Among my duties as a Clerk II was preparation for mailing of Final Administrative Decisions rendered by IDPA’s Assistant Hearing Section.
3) Customarily Final Administrative Decisions ready for mailing would be put on my desk by Dewey Young, Policy Reviewer.
4) In the course of preparing a Final Administrative Decision for mailing, I would check to see whether the pages of the decision were in order, whether the appellant’s address on the cover letter accompanying the decision was correct, stamp the current date on the cover letter, photocopy the decision for other persons entitled to copies, address envelopes directed to all persons entitled to receive copies of the decision, and put all the copies of the decision in the envelopes.
5) As I prepared each day’s Final Administrative Decisions for mailing, I would simultaneously log the decisions on the daily affidavit of mailing, which would subsequently be attested to and notarized.
6) If the day’s Final Administrative Decisions were ready for mailing prior to 3:40 p.m., the envelopes containing them would be given to another IDPA employee for transferral to ID-PA’s central mail room. If, however, the day’s Final Administrative Decisions were not ready for mailing prior to 3:40 p.m., I would personally transfer the envelopes containing them to IDPA’s central mail room.
7) I affirm that the document attached to this affidavit is a true and correct copy of the affidavit of mailing I filled out on June 6, 1988. This affidavit records those Final Administrative Decisions I prepared for mailing on June 6,1988.
8) The name of Jennie Saunders appears as the twelfth name on my affidavit of mailing for June 6, 1988. This entry indicates that, on June 6, 1988, I prepared a Final Administrative Decision for mailing to Ms. Saunders, dated the decision’s cover letter June 6, 1988, put the decision in an envelope addressed to Ms. Saunders at her address of record, and put another copy of the decision in an envelope addressed to her attorney, Ruth Watson, of the law firm of Hayt, Hayt and Landau, and had both envelopes containing the decisions transferred to the IDPA’s central mail room.”

Attached to that affidavit was another affidavit of Zina Bland which was sworn to on June 7, 1988, in which she said that on June 6, 1988, she “mailed” 12 letters with copies of findings of fact and decisions. The second affidavit contained the appeal numbers and the names and addresses of each of the persons to whom the letters were to be sent. The plaintiff was the last name listed.

The applicable rule provides that mere evidence of office custom, standing alone, is insufficient to establish a date of mailing. Rather, when the defendant, who has the burden of proof, relies on office custom, the law requires evidence of corroborating circumstances to show that the custom has been followed. Kocourek v. Bowling (1981), 96 Ill. App. 3d 310, 421 N.E.2d 397.

The issue in this appeal is whether the defendants proved the date of mailing. Before beginning a discussion on the merits of the case, however, we wish to express our disfavor for some of the arguments advanced by the plaintiff. In the trial court the plaintiff argued that the defendants failed to prove that the decision was mailed at all, and, alternatively, that the defendant failed to prove that the decision was mailed on June 6, 1988. The defendants argued that corroborating evidence of mailing “was the simple fact that the plaintiff did file a complaint for administrative review” proving “that she did receive the Department’s final administrative decision absent any evidence to the contrary.” Thus, the defendants put the plaintiff on notice of what should have been already obvious to the plaintiff — its own complaint showed that she had received the decision.

In spite of that additional notice, the plaintiff persisted in her opening brief in this court in arguing that there was no evidence of mailing, let alone evidence of mailing on June 6. After the defendants, in their brief, again called attention to the fact that the complaint showed that the plaintiff had received the decision, the plaintiff, in her reply brief and in oral argument, belatedly abandoned any claim that there was no evidence of mailing. She now agrees that the sole issue is whether the evidence shows that the mailing took place on June 6.

The plaintiff has also argued that the affidavits for the other three employees, which the plaintiff introduced from an unrelated case, establish only what the procedures were on March 17, 1988, and not on June 6, 1988. That argument is not consistent with the purpose for which the plaintiff offered the affidavits. They were offered by the plaintiff specifically in an attempt to show that what Zina Bland said she did on June 6 was false. It necessarily follows that the plaintiff was telling the court that the procedures followed on March 17, 1988, were the same procedures followed by the Department on June 6. It would unnecessarily lengthen this opinion to set forth the contents of those three affidavits. Suffice it to say that they establish the office custom of the defendants on June 6. Even if we were to conclude that they did not, we deem the second affidavit of Zina Bland to be sufficient to establish office custom. The issue, therefore, is reduced to this question: Did the defendants establish corroborating circumstances to show that the custom had been followed?

The plaintiff relies principally on Commonwealth Edison Co. v. Property Tax Appeal Board (1978), 67 Ill. App. 3d 428, 384 N.E.2d 504, Kocourek v. Bowling (1981), 96 Ill. App. 3d 310, 421 N.E.2d 397, and M.S. Kaplan Co. v. Cullerton (1977), 49 Ill. App. 3d 374, 364 N.E.2d 381.

In Commonwealth Edison, an employee submitted two affidavits. In the first, she said that she had “caused” copies of the decision to be deposited in the mail on a certain date. In the second, she said that she mailed the decision to the parties “in the usual course of business.” The court held that her first affidavit that she “caused” the mailing was a conclusion and that the second affidavit was in violation of Supreme Court Rule 191(a). (107 Ill. 2d R. 191(a).) Consequently the court ruled that the affidavits were insufficient to justify a summary disposition and remanded the case for an evidentiary hearing.

We think that the case is helpful to the defendants’ position here, rather than the plaintiff’s, because factually it contains matters that are pointedly missing in this case. The plaintiff in Commonwealth Edison submitted two affidavits; one stated that the decision had not been received by the plaintiff until five days after it had allegedly been mailed. The other affidavit alleged that the affiant had a conversation with the employee who had submitted the affidavit on behalf of the defendant. He said that the employee told him she had not personally mailed the decision but that she put copies of the decision in envelopes and placed those envelopes in an “out-box.” The court held that the plaintiff’s counteraffidavits rebutted what otherwise would be evidence corroborating the defendants’ employee’s affidavits. We emphasize that the plaintiff in this case provided no affidavits establishing the time she received the decision.

After the evidentiary hearing which had been ordered by the appellate court in Commonwealth Edison, the trial court again dismissed the complaint. In addition to testimony establishing office custom, the employee who had previously submitted an affidavit testified that the mail clerk collected letters from her out-box sometime before she left. She specifically recalled the decision at issue because it was a “large” decision involving a lot of money and she knew it was important to get it out. The court affirmed the dismissal despite the fact that no one was able to testify to the actual act of mailing. The court rejected the plaintiff’s argument that proof was required that a deposit was made within a mail receptacle. Commonwealth Edison Co. v. Property Tax Appeal Board (1980), 86 Ill. App. 3d 414, 407 N.E.2d 1088.

In Kaplan, a taxpayer testified that he received a notice of a proposed increased assessment from the county assessor on April 14, 1972, informing him that a hearing was to have been held on April 3, 1972. Through his attorney the plaintiff requested a hearing but was refused.

An employee of the assessor testified that the records in his office indicated that the notice to the plaintiff was prepared on March 27, 1972, but he did not know who mailed the notice or when it was received by the plaintiff. The court held that the assessor failed to prove that it had mailed the notice in sufficient time to reach the plaintiff before the April 3 hearing. Factually, the Kaplan case is wide of the mark in this case. In addition to the paucity of proof on the part of the assessor, there was testimony from the plaintiff that he received the notice 17 days after it had allegedly been mailed.

In Kocourek, the defendant Department of Labor submitted three affidavits from employees in support of its motion to dismiss a complaint for administrative review. All three testified to the Department’s procedure on March 29, 1979, the date the notice of decision was allegedly sent to the plaintiff. The complaint for administrative review was filed 36 days after March 29. None of the affiants claimed any personal recollection of the decision in issue.

The plaintiff submitted an affidavit in which she stated that she received notice of the decision on March 31, 1979, and that she had discarded the envelope in which the decision was mailed; she did not recall whether or on what date it may have been post-marked. She was not cross-examined. The trial court denied the defendants’ motion to dismiss, and the appellate court affirmed, making the pointed observation that the plaintiff’s affidavit “sufficiently challenge^] the conclusions of defendants’ affidavits so as to create a question of fact as to the actual mailing date.” Kocourek, 96 Ill. App. 3d at 313.

In sum, in all three cases cited by the plaintiff, the plaintiff submitted proof from which it could be inferred that the defendant had not mailed the decision on the date claimed by the defendant. In addition, in all three cases, there was an absence of proof that the persons responsible for mailing the decisions had any personal knowledge of the decision in issue.

In this case, Bland’s second affidavit established her personal knowledge of the decision in issue in this case. We agree with the trial judge that her second affidavit constituted some corroboration of her first affidavit which, we repeat, established the office custom. Thus, her affidavits established that she put the decision in this case in an envelope on June 6 and either gave it to a clerk to be taken to the mail room or she took it to the mail room herself.

The plaintiff, of course, is correct that there is no direct proof that the decision was mailed on June 6. We emphasize, however, that the defendants’ burden is not to prove the time of mailing beyond a reasonable doubt; it is sufficient if the proof shows that it is more probably true than not true that the decision was mailed on June 6. It is possible, but it is not reasonable, that the letter remained in the mail room for three days before being actually mailed. In our judgment the defendants’ evidence was prima facie proof of mailing on June 6.

We have observed that the plaintiff, unlike the plaintiffs in the cases she cited, submitted no proof establishing the actual date of reception of the decision. We make the additional observation that the plaintiff did not produce the envelope containing the decision nor did she explain its absence, as did the plaintiff in Kocourek. Where a party fails to produce evidence in his control, the presumption arises that the evidence would be adverse to that party. (Kane v. Northwest Special Recreation Association (1987), 155 Ill. App. 3d 624, 508 N.E.2d 257.) The judge justifiably considered that failure to produce in determining that the defendants had sufficiently established the date of mailing as June 6.

Although not controlling in our decision, we find the failure to produce the envelope further significant because the record shows that the same law firm representing the plaintiff in this case represented the plaintiff in the unrelated case to which we have referred; and, in that case, the plaintiff submitted copies of four decisions by the Department of Public Aid in which the envelopes containing the decisions bore later postal-meter dates than the dates on the cover letters accompanying the decisions.

For these reasons, we conclude that the judge’s finding is not against the manifest weight of the evidence; the judgment of the circuit court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and McNAMARA, J., concur.