author: JUSTICE GREIMAN

text:
    ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Plaintiff-Appellee, v. WILLIAM DOWNS et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1—91—3880
    Opinion filed May 26, 1993.

      Michael D. Hughes, of Hughes & Associates, of Flossmoor, for appellant Elise Ziemann.
    No brief filed for appellant William Downs.
    Hinshaw & Culbertson, of Chicago (Carol Proctor, Nancy G. Lischer, and Marisa A. Mancini, of counsel), for appellee.
   JUSTICE GREIMAN

delivered the opinion of the court:

In a declaratory judgment action concerning the scope of coverage available trader a professional liability insurance policy issued by plaintiff St. Paul Fire & Marine Insurance Company (St. Paul), the trial court granted summary judgment in favor of St. Paul, applying the doctrine of collateral estoppel to prohibit relitigation of the issue of whether a psychotherapist, defendant William Downs (Downs), was acting within the scope of his duties at the time he allegedly engaged in sexual misconduct with defendant Elise Ziemann (Ziemann). In an underlying action, another court had earlier determined that Downs’ employer was not liable for his acts under the doctrine of respondeat superior.

Ziemann now appeals and asserts that the doctrine of collateral estoppel was improperly applied by the trial court because (1) the issue decided in the underlying lawsuit differed from the issue presented in the instant declaratory judgment action; and (2) the parties to the prior proceeding (i.e., proceedings on a motion to dismiss) differed from the parties to the declaratory judgment action.

For the reasons which follow, we affirm the granting of summary judgment for St. Paul on theory of collateral estoppel.

Elise Ziemann filed a lawsuit (hereinafter the underlying action) against William Downs, her psychotherapist, and Downs’ employer, Family Service and Mental Health Center of South Cook County (hereinafter the Center). In her amended complaint, Ziemann alleged that while she was receiving treatment from Downs, he invited her to his residence in Olympia Fields and initiated sexual contact with her. Thereafter, on numerous occasions spanning from November 1987 through February or March 1988, Downs and Ziemann engaged in sexual intercourse.

Ziemann’s complaint contained two counts (counts V and VI) against the Center. Count V alleged that the Center was vicariously liable for the acts of Downs. Count VI alleged that the Center breached its duties to Ziemann, alleging several negligent acts or omissions by the Center.

Paragraph 12 of both counts specifically states:

“12. At all times relevant hereto, Defendant DOWNS was an employee, agent or servant of Defendant MENTAL HEALTH CENTER, acting within the scope of his employment as a psychotherapist.”

Ziemann’s complaint also included four counts against Downs: (1) breach of therapist’s duties; (2) assault and battery; (3) intentional infliction of emotional distress; and (4) punitive damages. The counts against Downs are not a part of this appeal and apparently are still pending.

The Center filed a motion to dismiss counts V and VI. It argued that count V should be dismissed because “Downs was acting for his sole benefit and not acting in the course of his employment when he engaged in sexual conduct with Elise Ziemann. Therefore, Family Service and Mental Health Center of South Cook County cannot be held vicariously liable under a doctrine of respondeat superior for William Downs’ acts.”

The Center contended that count VI should be dismissed “[because of the convoluted manner in which Count VI is pleaded it is unknown what cause of action is being alleged against [the Center].”

In her response to the Center’s motion to dismiss, Ziemann only addressed count V and contended that it alleges a cause of action under the doctrine of respondeat superior and bases the Center’s liability “upon the wrongful and negligent acts and omissions committed by its employee [Downs], in the course of his treatment of [Ziemann] as a psychotherapist employed by the Mental Health Center” and that these acts have been committed in the course of his employment, which gives rise to the vicarious liability of the Center alleged in count V.

Ziemann and the Center agreed that an employer may be held liable for the negligent, wilful, malicious or criminal acts of its employees where such acts are committed in the course of employment but not liable for acts committed solely for the benefit of the employee and outside the scope of his employment.

However, the parties disagreed as to how the scope of employment element should be applied to these facts. Ziemann contended that whether an employee’s act was committed within the scope of employment is a question of fact for the jury to decide, while the Center asserted it to be a proper threshold question of law for the court.

In the underlying action, on October 16, 1990, Judge Odas Nicholson entered an order that (1) dismissed count V with prejudice and without leave to amend; (2) dismissed count VI without prejudice; and (3) granted Ziemann leave to amend count VI by November 14, 1990. Apparently no hearing preceded this order and there were no findings or reasons given by Judge Nicholson. It does not appear that count VI was amended.

St. Paul, the present plaintiff, issued a professional liability insurance policy to the Center. Following the October 1990 order, St. Paul filed a declaratory judgment action seeking a determination that no coverage existed under the insurance policy issued to the Center for any liability incurred by Downs by reason of the sexual misconduct alleged against Downs occurring outside the scope of his duties as a psychotherapist.

The relevant portions contained in St. Paul’s insurance policy provide:

“Liability. We’ll pay amounts you or others protected under this agreement are legally required to pay as damages for covered professional liability claims. To be covered, claims must be based on events that arise out of the profession named in the Coverage Summary.
* * *
Employees. Your employees are protected against covered claims while working for you within the scope of their duties.”

St. Paul filed a motion for summary judgment asserting that the Center’s motion to dismiss the vicarious liability claim against the Center in the underlying action “was granted on the basis that Mr. DOWNS’ alleged sexual misconduct was not within the scope of his employment.” Thus, “the alleged sexual exploitation of Ms. ZIEMANN by Mr. DOWNS is outside the scope of his duties as a psychotherapist and, therefore, he is not an insured under the St. Paul policy.”

At the November 8, 1991, hearing, the trial court granted St. Paul’s motion for summary judgment based on the doctrine of collateral estoppel reasoning that Ziemann and Downs “are prohibited from relitigating the issue of whether Downs was acting within the scope of his duties.” As to the identity of issues, the trial court found that “[t]he issue before the court in the underlying action on the motion to dismiss was whether Downs was acting within the scope of his employment when engaging in sexual conduct with Ziemann or was sexual conduct committed solely for his own benefit. The identical issue is presented in this declaratory judgment action.” As to the identity of the parties involved, the trial court found that both “Downs and Ziemann were parties to the ‘prior action.’ ”

Ziemann now appeals the November 1991 order granting summary judgment in favor of St. Paul. Ziemann asserts that the trial court erroneously invoked the doctrine of collateral estoppel because the issue and the parties were different in the declaratory judgment action and the underlying lawsuit. We disagree.

Three elements are required for the application of collateral estoppel: (1) a final judgment on the merits entered in the prior action; (2) the issue decided in the prior adjudication is identical with the one presented in the suit in question; and (3) the party against whom estoppel is asserted was a party or in privity with a party to the prior action. In re Owens (1988), 125 Ill. 2d 390, 399-400, 532 N.E.2d 248.

Regarding the first element, the parties do not dispute that a final judgment was entered on the merits in the prior action, i.e., the ruling on the Center’s motion to dismiss count V of Ziemann’s complaint. The order of dismissal provided appropriate language under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) so that it was final and appealable. However, no one appealed that order.

The second element of collateral estoppel, i.e., the identity of issues, presents the primary dispute in this case. In the declaratory judgment action, the trial court clearly stated its belief that the issue to be decided there was whether Downs was acting within the scope of his duties and that collateral estoppel was appropriate based on the prior adjudication which resulted in dismissal of Ziemann’s vicarious liability count against the Center.

Ziemann maintains that there is a distinction between the court’s determination in the underlying action that she had not stated a cause of action against the Center and the court here construing the language of an insurance policy although both admittedly deal with the question of whether the employee is working within the scope of his duties. Ziemann does not suggest that there are any special rules such as presumptions, adverse construction or otherwise in examining the insurance policy nor does she suggest the existence of an ambiguity that would bring these rules of construction into play.

On the other hand, St. Paul contends that the identical issue presented in both suits is whether the sexual misconduct of Downs was within the scope of his employment. St. Paul argues that the underlying court necessarily decided this issue because it was the only issue before that court based on Ziemann’s allegations in count V of her complaint wherein Ziemann alleged that Downs was an employee of the Center acting within the scope of his employment as a psychotherapist.

Although the causes of action involved in the prior judgment and in the subsequent action are different in nature, the doctrine of collateral estoppel applies and operates as a bar in the subsequent action as to the question, and only that question, actually determined in the prior suit and not as to other matters which might have been litigated and determined. Benton v. Smith (1987), 157 Ill. App. 3d 847, 853, 510 N.E.2d 952, citing Housing Authority v. Y M C A (1984), 101 Ill. 2d 246, 461 N.E.2d 959.

Moreover, mere similarity in pleadings does not determine the issue of collateral estoppel. (Benton, 157 Ill. App. 3d at 855-56.) Rather, a court must interpret an order in the prior action within the context and parameters of the motions that accompany it and upon which it is predicated (see Lewy v. Koeckritz International, Inc. (1991), 211 Ill. App. 3d 330, 335, 570 N.E.2d 361).

In the YMCA case, the Illinois Supreme Court explained:

“The doctrine of collateral estoppel applies when a party or someone in privity with a party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit by a court of competent jurisdiction.” (Emphasis in original.) YMCA, 101 Ill. 2d at 252.

It is difficult to imagine the exercise in semantics necessary to draw a distinction between the “scope of employment” used in the common law criteria and the “scope of their [employees’] duties” set out in the issued insurance policy. The Center is liable under the theory of respondeat superior only for its employees’ conduct within the scope of employment and St. Paul’s policy insures only conduct within the scope of the Center’s employees’ duties. If there is a difference between the two, “duties” seems to be more restrictive than “employment.” For example, injury at a company-sponsored baseball game might be within the scope of employment but not likely to be within the scope of any employee’s duties. Law Offices of William W. Schooley v. Industrial Comm’n (1987), 151 Ill. App. 3d 1069, 503 N.E.2d 1186; see, e.g., Board of Education v. Industrial Comm’n (1980), 81 Ill. 2d 17, 405 N.E.2d 783.

However, we do not make that distinction. Although courts have recognized that no precise definition on “scope of employment” exists, the focus is generally upon issues of whether the employee’s act was conducted within the constraints of authorized time and location of the employment and whether the conduct was actuated at least in part by a purpose to further the employer’s business. Wilson v. Clark Oil & Refining Corp. (1985), 134 Ill. App. 3d 1084, 1089, 481 N.E.2d 840; Sunseri v. Puccia (1981), 97 Ill. App. 3d 488, 493, 422 N.E.2d 925.

We must acknowledge that the second element of collateral estoppel has been satisfied because the issue as to scope of employment decided in the prior adjudication is indistinguishable from the issue presented to the court in the declaratory judgment action.

The third and final factor to be considered for collateral estoppel is whether the party against whom estoppel is asserted was a party or in privity with a party to the prior action.

In the present case, Ziemann challenges the application of collateral estoppel against Downs and argues that Downs was not a party to count V of Ziemann’s complaint, did not answer count V, made no response to the Center’s motion to dismiss count V of the complaint, and had no opportunity to litigate the issues raised there. Ziemann also argues that Downs was not in privity with any party to the prior action because his interests were adverse to both Ziemann and the Center, the only parties to the proceedings regarding count V of Ziemann’s complaint.

St. Paul contends that Ziemann’s arguments are without merit because Downs was a named defendant in the underlying case and thus certainly had an opportunity to respond to the Center’s motion and appeal if warranted.

A person who was a party to the first lawsuit is subject to the doctrine of collateral estoppel in the subsequent action. (Shimkus v. Board of Review of the Illinois Department of Labor (1983), 117 Ill. App. 3d 826, 830, 454 N.E.2d 36.) “[A] party is one who is named as such in the record and has been properly served with summons or has entered an appearance.” Collins v. St. Jude Temple No. 1 (1987), 157 Ill. App. 3d 708, 711, 510 N.E.2d 979.

To apply collateral estoppel, the parties need not have been arrayed on opposite sides in the prior adjudication and formal issues need not have been raised between them. Pechous v. Field Enterprises, Inc. (1983), 114 Ill. App. 3d 605, 608, 449 N.E.2d 243; Kramer v. Chicago Title & Trust Co. (1979), 69 Ill. App. 3d 1015, 387 N.E.2d 1105.

Downs is indisputably a named party in the underlying action and as such is susceptible to being collaterally estopped from relitigating issues decided therein.

Even though the technical requirements of collateral estoppel may be satisfied, equity should be considered so that the preclusive effect of collateral estoppel will not be applied where it would result in manifest injustice. Benton, 157 Ill. App. 3d at 856.

Downs apparently did not respond to the Center’s motion to dismiss in the underlying action. The Illinois Supreme Court has noted that “[ujnder special circumstances, the absence of an incentive to litigate might be relevant in the application of collateral estoppel.” (Y M C A, 101 Ill. 2d at 255, citing Restatement (Second) of Judgments §28(5)(c) (1982).) However, the case at bar presents a clear incentive on the part of Downs to respond to the Center’s motion because it directly affected his right to claim the protection afforded by insurance. The record reveals that St. Paul sent a reservation of rights letter to Downs on January 2, 1990, before the motion to dismiss was filed on April 30,1990. In this letter St. Paul stated:

“[T]he acts alleged in the Ziemann Complaint do not constitute acts performed by Mr. Downs while working within the scope of his duties for Family Service & Mental Health Center of South Cook County.
* * *
*** [T]he policy of liability insurance *** does not afford coverage for the matters alleged in [Ziemann’s complaint].”

Accordingly, Downs knew that the outcome of the Center’s motion to dismiss, which was based on the assertion that Downs’ alleged misconduct occurred outside the scope of his employment, could impact his right to claim insurance coverage and had ample incentive to participate in the underlying proceedings.

Ziemann’s reliance on Gay v. Open Kitchens, Inc. (1981), 100 Ill. App. 3d 968, 971, 427 N.E.2d 338, is misplaced because the original two codefendants in Gay “were not in adversary positions either legaily or in fact” in the first proceeding. In contrast, the codefendants in the underlying action, i.e., Downs and the Center, were adversaries as indicated by the reservation of rights letter which clearly revealed the antagonistic position taken by the Center’s insurer.

A named party may not sit idly by as an issue is decided which ■undermines protection under insurance policies issued to protect such party. Cf Tokar v. Crestwood Imports, Inc. (1988), 177 Ill. App. 3d 422, 434, 532 N.E.2d 382 (“[a] party cannot sit idly by while the trial court undertakes a course of action and then allege error in that regard”).

In addition, a party may challenge any judgment adverse to its interests. (Cortes v. Ryder Truck Rental, Inc. (1991), 220 Ill. App. 3d 632, 637, 581 N.E.2d 1 (a codefendant had the right to challenge a directed verdict entered against another codefendant).) Even a non-party has standing to appeal if he has a direct, immediate and substantial interest in the subject matter which would be prejudiced by the judgment or benefited by its reversal. (In re Estate of Strong (1990), 194 Ill. App. 3d 219, 550 N.E.2d 1201.) Accordingly, Downs could have contested the granting of the Center’s motion to dismiss and would have had standing to pursue an appeal.

For all the foregoing reasons, we find that the court in the declaratory judgment action properly invoked the doctrine of collateral estoppel to grant summary judgment in favor of St. Paul.

Although we find that the elements of collateral estoppel have been satisfied, we note that St. Paul alternatively contended that summary judgment was proper even if the doctrine of collateral estoppel did not apply because, as a matter of law, Downs’ alleged sexual misconduct with his patient is not within the scope of his duties with the Center.

To support this contention, St. Paul relies on decisions where the courts have ruled that engaging in sexual conduct is outside the scope of one’s employment, as a matter of law, as to a day-care teacher (Randi F. v. High Ridge Y M C A (1988), 170 Ill. App. 3d 962, 968-69, 524 N.E.2d 966 (“the assault and sexual molestation of a three-year-old child by a teacher’s aide at a day-care center is a deviation from the scope of the employment having no relation to the business of the day-care center or the furtherance thereof” and thus there is no basis to hold the employer liable under a theory of respondeat superior)); a security guard (Webb v. Jewel Cos. (1985), 137 Ill. App. 3d 1004, 1008, 485 N.E.2d 409 (“the sexual molestation of a young girl by a security guard is *** a deviation having no relation to the business of Jewel or the furtherance thereof” and thus it was proper to dismiss the allegations against the employer, Jewel, for failure to state a cause of action on the theory of respondeat superior))-, and a medical doctor (Hoover v. University of Chicago Hospitals (1977), 51 Ill. App. 3d 263, 366 N.E.2d 925 (the alleged sexual assault of a patient by a medical doctor in his office “cannot be interpreted as an act in furtherance of the hospital’s business,” so it was proper to dismiss a count of the complaint which involved the employer hospital)).

We believe that the nature of the work performed by a psychotherapist is substantially different than that of a day-care teacher as in Randi F or a security guard as in Webb or a medical doctor as in Hoover so that a psychotherapist who engages in sexual relations with a patient could not be said, as a matter of law, to have acted outside the scope of his employment.

The fiduciary duty owed by a psychotherapist exists due to “the very nature of the therapist-patient relationship, which *** gives rise to a clear duty on the therapist’s part to engage only in activity or conduct which is calculated to improve the patient’s mental or emotional well-being, and to refrain from any activity or conduct which carries with it a foreseeable and unreasonable risk of mental or emotional harm to the patient.” Horak v. Biris (1985), 130 Ill. App. 3d 140, 145, 474 N.E.2d 13 (the court recognized a cause of action for social worker malpractice).

A medically recognized phenomenon known as “transference” often results during therapy. (Suppressed v. Suppressed (1990), 206 Ill. App. 3d 918, 924 n.2, 565 N.E.2d 101.) In psychiatric practice, transference has been defined as “ ‘a phenomenon *** by which the patient transfers feelings toward everyone else to the doctor, who then must react with a proper response, the countertransference, in order to avoid emotional involvement and assist the patient in overcoming problems.’ ” Horak, 130 Ill. App. 3d at 146, quoting Aetna Life & Casualty Co. v. McCabe (E.D. Pa. 1983), 556 F. Supp. 1342, 1346.

The psychological dependency of a patient frequently causes the transference phenomenon. (Suppressed, 206 Ill. App. 3d at 924 n.2.) A psychotherapist incurs liability for malpractice where the therapist mishandled this phenomenon, as it generally results in sexual relations with the patient.

“The mishandling of this phenomenon, which generally results in sexual relations or involvement between the psychiatrist or therapist and the patient, has uniformily been considered as malpractice or gross negligence in other jurisdictions, whether the sexual relations were prescribed by the doctor as part of the therapy, or occurred outside the scope of treatment.” (Emphasis added.) (Horak, 130 Ill. App. 3d at 146 (and cases cited therein).)

Accordingly, the sexual misconduct of a therapist could be viewed as inside the scope of treatment under the guise of therapy.

Indeed our supreme court has recognized a cause of action grounded in negligence against a therapist who engages in sexual relations with his patient and that patient need not allege physical injury in order to recover for emotional distress. (Corgan v. Muehling (1991), 143 Ill. 2d 296, 574 N.E.2d 602.) In Corgan, the supreme court cited with approval a Washington case which held that sexual involvement between a psychotherapist and a patient raises a jury question as to the therapist’s malpractice. Corgan, 143 Ill. 2d at 308, citing Omer v. Edgren (1984), 38 Wash. App. 376, 685 P.2d 635.

The elements of a malpractice action are the same elements required of any negligence action as alleged in the present complaint. (Horak, 130 Ill. App. 3d at 144.) Although the existence of a duty is a question of law for the court to determine, the alleged breach of a duty is a question of fact for the jury to decide. Horak, 130 Ill. App. 3d at 144.

In Corgan, the plaintiff alleged that, in having intercourse with her, the defendant failed to recognize or properly deal with the phenomenon of transference and countertransference. The facts alleged in Ziemann’s complaint are that Downs, during the course of treatment of Ziemann, breached the duty of care by, among other things, failing “to take appropriate clinical measures with respect to counter-transference from” Downs to Ziemann. Were this appeal taken from the order of the underlying action, we might entertain an analysis of how this failure to deal with transference might provide new emotional injury totally unrelated to the condition for which Ziemann originally sought treatment and perhaps a proper matter for a jury’s consideration.

The order in the underlying action dismissed count V with prejudice and without leave to amend. We may not have been inclined to preclude Ziemann from amending her complaint to allege counts as recognized in Corgan and Horak, such as psychological malpractice and negligent infliction of emotional distress.

However, we have determined the application of the principles of collateral estoppel and although we might have addressed an appeal from the underlying action differently than the trial court, we are bound by that court’s determination since no appeal was forthcoming.

We recognize that after the alleged events in the present case, the General Assembly enacted the Sexual Exploitation in Psychotherapy Act (Act) (Ill. Rev. Stat. 1991, ch. 70, par. 800 et seq.), which created a cause of action allowing the patient to make the psychotherapist accountable when the therapist engages in sexual contact with the patient (Ill. Rev. Stat. 1991, ch. 70, par. 802) and the employer liable when it knows or has reason to know that the psychotherapist has engaged in sexual contact with a patient (Ill. Rev. Stat. 1991, ch. 70, par. 803). By its express terms, the Act “applies only to causes of action arising on or after its effective date [January 1, 1989].” (Ill. Rev. Stat. 1991, ch. 70, par. 807.) The sexual intercourse alleged in Ziemann’s complaint occurred from November 1987 through February or March 1988.

We therefore affirm the decision of the circuit court of Cook County.

Judgment affirmed.

TULLY, P.J., and CERDA, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE JIGANTI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL EICHWEDEL, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—1190
    Opinion filed May 27, 1993.

      Michael J. Pelletier and Manuel S. Serritos, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Ann L. Benedek, Special Assistant State’s Attorney, and Renee Goldfarb and James Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Following a bench trial, the defendant Paul Eichwedel was convicted of first degree murder and solicitation to commit murder and sentenced to concurrent prison terms of 50 years and 30 years, respectively. He contends on appeal that the trial court erred in refusing to suppress his confession because it was made after the police failed to honor his request for counsel and because it was involuntarily given. The defendant also contends that he was improperly convicted of both the principal and inchoate offenses, that the judgment order must be corrected to accurately state his sentence for solicitation and that the trial court abused its discretion in imposing sentence.

The defendant was charged with murder, conspiracy to commit murder and solicitation to commit murder in connection with the homicide of his brother-in-law, David Schultz, on July 5, 1986. Prior to trial, he made a motion to suppress his confession on the grounds that it was made after the police refused his request for counsel and that it was involuntarily given. The following is a summary of the evidence presented at the hearing on the motion to suppress.

On November 13, 1987, undercover officers made a purchase of narcotics from the defendant at his apartment. This was the third such transaction. After the defendant was arrested, he expressed a desire to cooperate with the police in an effort to avoid going to jail. The defendant was taken to the State’s Attorney’s office at 26th and California, advised of his constitutional rights, then questioned about thefts of gas from Peoples Gas Company. The defendant provided the police with information concerning the thefts. The defendant testified that during the course of the interrogation, he was told that he would serve a minimum of 18 years on the drug charges, that his family’s property would be forfeited and that if he failed to cooperate he would be taken to the Cook County jail, where he would be subjected to acts of sodomy by the other inmates. At least one of the officers admitted discussing the potential jail sentence; the officers denied making the remaining statements testified to by the defendant. At approximately 3 a.m., the defendant was taken to the witness quarters located in the State’s Attorney’s office.

On November 14, 1987, at approximately 5 p.m., the defendant was questioned by Investigator Michael Staunton. It was during this interview that the defendant claims his request for counsel was denied. Staunton testified to the following exchange with the defendant:

“[ASSISTANT STATE’S ATTORNEY] Q. What, if anything, did you say to the defendant and what, if anything, did the defendant say to you?
[STAUNTON] A. He asked me to call, if he could call Jeff Williams.
Q. And what did you say to the defendant at this point?
A. I asked him if he was a criminal attorney.
Q. What did he say?
A. He said no.
Q. And what did you say at this point?
A. I told him to sit still and wait there for awhile, that I would be right back and I left the room.
Q. Did you return to the room a period of time later?
A. Yes.
Q. How long?
A. I would say I was gone maybe ten minutes.
Q. Was anybody else there when you got back besides the defendant?
A. No.
Q. Did you resume your conversation with the defendant at that point?
A. Yes, I did.
Q. What did you say to him and what did he say to you?
A. I asked him if he knew a criminal attorney and he said no. I then said that we could provide him with a list of criminal attorneys and he would be able to call one of those.
Q. What did he say?
A. He said, ‘What would happen if he called a criminal attorney?’ And I said—
Q. What did you say to him?
A. I said that we would have to process him, that he [had] not been processed yet; that we would have to take him across the street to the Cook County Jail to have him processed and sent into the system.
Q. Did you tell him that if he wanted an attorney, that he couldn’t cooperate anymore?
A. No, I did not.
Q. And what did he say, did he tell you after you said this?
A. He asked me what would happen if he continued to cooperate with us.
Q. And what did you?
A. I said, well, we would have to have you sign a Miranda, your Miranda Rights and then we could continue the interview.
Q. And what did he say?
A. He at that time agreed to sign the Miranda Rights.”

The defendant testified that during the conversation with Staunton he specifically asked to call “Jeff Williams, my attorney, at that time.” During the course of the questioning that followed, the defendant confessed to hiring a co-worker named Danny Robinson to kill the defendant’s brother-in-law, David Schultz. This confession was the subject of the defendant’s motion to suppress.

The trial court denied the motion, finding that the defendant’s will had not been overborne by police threats or promises and that the confession was therefore voluntarily given. With respect to the claimed denial of the defendant’s request for counsel, the court made the following findings:

“My recollection when I reviewed the record was that [the defendant] asked if he could contact a Jeff Williams and identified him initially himself as an attorney. That inquiry, as I understand it from the evidence, I don’t think can be construed as the defendant invoking his right to counsel. It was an inquiry. I don’t have any doubt that the inquiry was made.
*** I am not convinced that [the defendant] persisted in that or made it perfectly clear that he didn’t want to talk anymore unless he could talk to Jeff Williams. I didn’t see any unequivocal a man wanting an attorney.”

The court accordingly denied the defendant’s motion to suppress his confession.

The defendant was tried in a bench trial held simultaneously with Danny Robinson’s jury trial. The defendant’s confession was introduced into evidence. The State also presented evidence that the defendant had solicited two other men to murder the victim and that he had made statements wishing for the victim’s death. The evidence also showed that the defendant had obtained insurance policies on the life of the victim and had collected the proceeds. A handwriting expert testified that a payment schedule of monies paid to Robinson had been written by the defendant.

Following trial, the defendant was convicted of first degree murder and solicitation to commit murder and sentenced to concurrent prison terms of 50 years and 30 years, respectively.

On appeal, the defendant contends that the court erred in denying the motion to suppress his confession. He argues that the police refused to honor his request for counsel and to immediately terminate the questioning, thereby violating his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, and Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880. The State’s sole response to this contention is that the defendant’s query as to whether he could call his attorney was a mere inquiry and was insufficient to constitute an invocation of his right to counsel.

An accused in custody, “having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him,” unless he validly waives his earlier request for the assistance of counsel. (Edwards v. Arizona (1981), 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1885.) This is a rigid prophylactic rule embodying two distinct inquiries. (Smith v. Illinois (1984), 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490.) First, the court must consider the threshold inquiry of whether the accused actually invoked his right to counsel. If it is determined that he did, his responses to further questioning may be admitted only where the defendant (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. Edwards v. Arizona, 451 U.S. at 486 n.9, 68 L. Ed. 2d at 387 n.9, 101 S. Ct. at 1885 n.9.

This cause concerns the threshold inquiry of whether the defendant’s words constituted an invocation of his right to counsel. In making this determination, we note the language of Miranda v. Arizona stating that questioning must cease if the accused “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking.” (Miranda v. Arizona (1966), 384 U.S. 436, 444-45, 16 L. Ed. 2d 694, 707, 86 S. Ct. 1602, 1612.) Here, Investigator Staunton testified that at one point during the questioning, the defendant “asked me to call, if he could call Jeff Williams.” The defendant testified that he identified Jeff Williams as an attorney, and the trial court stated in its findings that the defendant identified Jeff Williams as an attorney. In our view, the defendant’s request as to whether he could call his attorney was a sufficient invocation of his right to counsel. We find the defendant’s words distinguishable from the words used in the cases cited by the State, such as People v. Krueger (1980), 82 Ill. 2d 305, 308, 412 N.E.2d 537, 538, cert, denied (1981), 451 U.S. 1019, 69 L. Ed. 2d 390, 101 S. Ct. 3009 (“Maybe I need a lawyer”), and People v. Wieland (1984), 123 Ill. App. 3d 576, 580, 462 N.E.2d 1256, 1259 (defendant stated he was not sure whether he should take a polygraph test because he did not have a lawyer). Although the defendant here phrased his request as an inquiry, we read the language in Miranda, which allows the invocation to be made “in any manner,” as requiring the rejection of any suggestion that exact, talismanic language is required.

Instead of immediately discontinuing the questioning, Staunton asked the defendant whether Jeff Williams was a criminal attorney, and, after conferring with his supervisor, offered to provide the defendant with a list of criminal attorneys. Staunton told the defendant that “he would be able to call one of those.” After further discussion, the defendant signed a Miranda waiver and eventually confessed.

The State characterizes Staunton’s actions as an attempt to answer the defendant’s inquiries concerning his right to an attorney rather than as continued interrogation. A very similar situation was considered by the Supreme Court in Smith v. Illinois (1984), 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490. In Smith, the defendant was arrested and taken to an interrogation room. The officer questioning the defendant gave him the Miranda warnings, informing him that “[y]ou have a right to consult with a lawyer and to have a lawyer present with you when you’re being questioned. Do you understand that?” The defendant responded, “Uh, yeah, I’d like to do that.” Instead of terminating the questioning at that point, the officer finished reading Smith the Miranda rights, then asked, “Do you wish to talk to me at this time without a lawyer being present?” The defendant answered, “Yeah and no, uh, I don’t know what’s what, really.” He subsequently agreed to answer questions without the presence of counsel. The Supreme Court held that the defendant’s initial response constituted an unequivocal request for counsel and that, under the bright-line rule stated in Edwards, “all questioning must cease after an accused requests counsel.” (Emphasis in original.) Smith, 469 U.S. at 98, 83 L. Ed. 2d at 495,105 S. Ct. at 494.

We believe that the defendant’s right to have counsel present during questioning was violated and that the trial court erred in denying the motion to suppress his confession. Accordingly, we reverse the judgment of the circuit court and remand the cause for a new trial. In doing so, we reject the State’s contention that the error was harmless. The admission of an unlawfully obtained confession will rarely be considered harmless error (People v. St. Pierre (1988), 122 Ill. 2d 95, 114, 522 N.E.2d 61), and we do not believe it was harmless in the case at bar.

Our disposition of the cause on this basis makes it unnecessary for us to address the remaining issues raised by the defendant.

Accordingly, the judgment of the circuit court is reversed and remanded.

Reversed and remanded.

CAHILL and HOFFMAN, JJ., concur.


author: JUSTICE HOFFMAN

text:
    LONNIE AUSTIN, Appellant, v. CIVIL SERVICE COMMISSION et al., Appellees.
    First District (4th Division)
    No. 1—91—3852
    Opinion filed May 27, 1993.

      Cornfield & Feldman, of Chicago (Richard J. Tupper, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Kimberly W. White, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE HOFFMAN

delivered the opinion of the court:

On March 5, 1989, Lonnie Austin (Lt. Austin), was a lieutenant in the employ of the Department of Corrections assigned to supervise the inmates in a dining room of the Joliet Correctional Center. In that capacity, Lt. Austin had control over how and when the inmates were fed and was charged with the responsibility of coordinating the movement of the inmates into and out of the dining room.

It appears from the record that inmates at the correctional facility were allowed only one tray of food at each meal. While performing his duties, Lt. Austin observed inmate Hughes get into the serving line to obtain a second tray of food. As Lt. Austin ordered Hughes to get out of the serving line and sit down, he noticed that Hughes was wearing an earring. The wearing of jewelry is prohibited in the facility and earrings are considered “minor contraband.” Lt. Austin ordered Hughes to turn the earring over to him; but, before he obtained the earring from Hughes, another correctional officer notified Lt. Austin that other inmates were getting into the serving line attempting to get additional trays of food. Lt. Austin directed his attention to the serving line problem. However, after Lt. Austin quelled the disturbance, he did not seek out inmate Hughes to retrieve the earring.

When the meal period ended, Lt. Austin ordered the inmates to return to the east cell house. Inmate Hughes was one of the last inmates to leave the dining room. Lt. Austin observed that Hughes was still wearing the earring. He ordered Hughes to stop but Hughes ignored the order and proceeded down the “alley.” Lt. Austin followed Hughes. Hughes refused to relinquish the earring and threatened Lt. Austin with bodily harm. At this point, about 75 inmates were walking ahead of Lt. Austin and Hughes. Lt. Austin attempted to handcuff Hughes but Hughes resisted and struck Lt. Austin. When he did so, Lt. Austin sprayed Hughes with mace. The other inmates reversed direction and ran toward Lt. Austin and Hughes. After ignoring warnings to stop and return to the east cell house, a tower guard fired a warning shot. The inmates again reversed direction and ran into the east cell house. With the assistanee of another correctional officer, Lt. Austin restrained Hughes and he was taken to the shift commander’s office.

As a consequence of the incident, Lt. Austin was charged with negligence and the improper handling of a contraband situation.

An employee review hearing was held on the charges against Lt. Austin after which the hearing officer recommended that Lt. Austin be suspended pending discharge.

The Department of Corrections filed a written notice of Lt. Austin’s discharge for cause with Central Management Services. The notice read as follows:

“Lonnie Austin, employed by the Department of Corrections in the position of Correctional Lieutenant, is discharged for cause, in that:
On March 5, 1989, an incident occurred between Lieutenant Austin, who was assigned to the dining room, and Inmate Hughes. The incident initially began when Lieutenant Austin tried to reclaim an earring from Inmate Hughes but neglected to follow through and obtain the earring since there was another disturbance in the dining room.
While returning 5 Gallery from the dining room to the cellhouse, Lieutenant Austin saw Inmate Hughes with the earring still in his ear. When Inmate Hughes refused to relinquish the earring, Lieutenant Austin pursued him. An altercation occurred between the two resulting in Lieutenant Austin macing the inmate. During this time, at approximately 3:50 p.m., approximately 30-40 inmates were running through the East Cellhouse, agitated, and verbally abusive towards security staff. A warning shot was fired by the yard tower officer to control the inmates running to the location of Inmate Hughes and Lieutenant Austin.
Lieutenant Austin is charged with negligence in leaving his assignment unsupervised while a gallery of inmates [was] still inside. Lieutenant Austin is charged with negligence in failing to notify his supervisor. Lieutenant Austin is also charged with the improper handling of a contraband situation in that he exercised poor judgment in not initially obtaining the contraband and dispensing of the incident.
Lieutenant [Austin] has previously received a 25-day suspension for a related offense in October of 1985, a 1-day suspension in February of 1989, and a 3-day suspension in February of 1989.”

The director of Central Management Services approved the charges against Lt. Austin.

On Lt. Austin’s request, a hearing was held on the charges before a hearing officer for the Civil Service Commission. The officer issued his written findings and recommendations on the charges. The officer found that Lt. Austin acted reasonably when he initially abandoned his effort to obtain the earring from Hughes in the dining room and directed his attention to the other inmates who were attempting to obtain additional trays of food; and the evidence, when viewed in its entirety, failed to support a finding that Lt. Austin either left his assignment or failed to notify his supervisor. However, the officer found that Lt. Austin used poor judgment in confronting Hughes in the alley which resulted in a potentially dangerous situation and, as a consequence, recommended that Lt. Austin be suspended from duty for 90 days in addition to his period of suspension pending his discharge. The hearing officer found that Lt. Austin’s actions did not warrant discharge.

After considering its hearing officer’s written findings and recommendations, the commission rendered the following decision:

“The Undersigned, having read the decision of the hearing officer dated February 13, 1990, hereby adopt said decision to the extent not inconsistent with the comments set forth below and hereby certify it to the Director of the Department of Central Management Services, State of Illinois, for enforcement.
We do not concur with the hearing officer’s analysis of the incident which is the subject of this appeal. We find that the seriousness of the incident, when viewed in light of the totality of the circumstances, warrants the discharge of Lonnie Austin.”

Lt. Austin filed a complaint for administrative review in the circuit court of Cook County. After previously having heard argument and denying a motion to reconsider, the trial court found that the discharge of Lt. Austin was too harsh a sanction and, as a consequence, reversed the commission’s decision and remanded the case to the commission to determine an appropriate penalty.

On remand, after taking exception to the circuit court’s reduction in penalty, the commission ordered Lt. Austin suspended from duty for a period of 90 days in addition to his original suspension pending discharge.

Subsequently, the circuit court entered a final order and this appeal followed.

The scope of review of an administrative agency’s decision to discharge an employee is a two-step process, as explained in Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 426 N.E.2d 885. First, the court must determine if the agency’s findings of fact are contrary to the manifest weight of the evidence. In doing so, the court must consider the agency’s findings and conclusions on questions of fact to be prima facie true and correct. (Ill. Rev. Stat. 1991, ch. 110, par. 3—110.) Secondly, the court must determine if the agency’s findings of fact provide a sufficient basis for its conclusion that there is cause for the employee’s discharge. Cause is “ ‘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, 85 Ill. 2d at 551, 426 N.E.2d at 887, quoting Kreiser v. Police Board (1976), 40 Ill. App. 3d 436, 441, 352 N.E.2d 389, aff’d (1977), 69 Ill. 2d 27, 370 N.E.2d 511.) The administrative agency must determine whether there is sufficient cause to warrant the discharge of an employee and substantial deference must be accorded to its decision. As such, the agency’s decision as to whether cause for discharge exists will not be reversed unless it is arbitrary, unreasonable, or unrelated to the requirements of service. Launius v. Board of Fire & Police Commissioners (1992), 151 Ill. 2d 419, 603 N.E.2d 477; Kloss v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 252, 449 N.E.2d 845; Department of Mental Health, 85 Ill. 2d 547, 426 N.E.2d 885.

Our review of this case involves only the second prong of the test; namely, whether there was sufficient cause for the commission to discharge Lt. Austin. The trial court reversed the commission, finding that the discharge was “too harsh a sanction.” However, the question for the court is not whether it would administer a more lenient sanction than discharge were it to initially determine what discipline would be appropriate under the facts of any given case. The question for the court is whether in opting for discharge, the agency acted arbitrarily, unreasonably, or selected a form of discipline unrelated to the needs of the service. (Launius, 151 Ill. 2d at 436, 603 N.E.2d at 484; Sutton v. Civil Service Comm’n (1982), 91 Ill. 2d 404, 411, 438 N.E.2d 147, 150.) However, the judgment of a trial court may be sustained on review on any ground appearing in the record regardless of whether the trial court relied on it. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12.

Section 14 of the Illinois Administrative Procedure Act states in pertinent part:

“A final decision or order adverse to a party (other than the agency) in a contested case shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accomplished by a concise and explicit statement of the underlying facts supporting the findings.” (Ill. Rev. Stat. 1991, ch. 127, par. 1014.)

The commission’s hearing officer, in issuing his 17-page findings and recommendation, complied in all respects with the statute. The commission’s decision is quite another matter; it is wholly conclusory. It states that it adopts the decision of the hearing officer to the extent that it is not inconsistent with its conclusion that the seriousness of the incident warrants the discharge of Lt. Austin. The commission never rejected any of the hearing officer’s findings of fact nor did it make any findings of fact inconsistent with those of the hearing officer. A reader of the commission’s decision is left to divine which portion of the hearing officer’s decision it found to be inconsistent with its conclusion. The decision of the commission is void of any statement of fact to support its findings that the seriousness of the incident at issue warranted the discharge of Lt. Austin. In section 14 of the Act, the legislature has specifically mandated that the final decision of an administrative agency contain an explicit statement of fact. Because the commission failed to set forth any facts in its opinion to support its decision to discharge Lt. Austin, its decision was arbitrary and unreasonable. Bell v. Civil Service Comm’n (1987), 161 Ill. App. 3d 644, 515 N.E.2d 248; Bodine v. Civil Service Comm’n (1985), 134 Ill. App. 3d 341, 480 N.E.2d 160.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and CAHILL, JJ., concur.


author: JUSTICE CAHILL

text:
    GREGG AMOS, Indiv. and d/b/a Gregg’s A-Team Shell, Inc., et al., Counter-claimants-Appellants, v. SHELL OIL COMPANY, Counterdefendant-Appellee.
    First District (4th Division)
    No. 1—92—0824
    Opinion filed May 27, 1993.

      Donald E. Amos, of Chicago, for appellants.
    Tribler & Orpett, P.C., of Chicago (Douglas C. Crone and Panos T. Topalis, of counsel), for appellee.
   JUSTICE CAHILL

delivered the opinion of the court:

We address the impact of the Federal Petroleum Marketing and Practices Act (PMPA) (15 U.S.C. §2801 et seq. (1978)) on the right of oil companies to abruptly terminate franchise agreements with gasoline service stations and to repossess the station when the operator defaults on his obligations. We hold that under certain circumstances an oil company may unilaterally terminate a franchise agreement, repossess a service station, and lock out an operator who engages in fraudulent conduct. We further hold that the PMPA preempts the Illinois Forcible Entry and Detainer Act (Ill. Rev. Stat. 1987, ch. 110, par. 9—102) in disputes that arise out of franchise leases between a national gasoline distributor and its local retailers. In so doing, we affirm the decision of the trial court.

After receiving numerous bad checks from Amos, but before filing suit, a Shell area manager and an armed private security guard closed and repossessed the station from which Amos did business. The Shell Oil Company then sued Gregg Amos and Gregg’s A-Team Shell, Inc., for money owed on the gasoline deliveries for which Amos had tendered the dishonored checks. Amos counterclaimed, alleging that Shell violated the Illinois Forcible Entry and Detainer Act (Ill. Rev. Stat. 1987, ch. 110, par. 9—102) and the Federal Petroleum Marketing Practices Act (15 U.S.C. §2801 et seq. (1978)) when it repossessed the gas station. After a bench trial, the judge entered judgment for Shell and rejected Amos’ counterclaims.

Amos appeals the trial court’s ruling, making two arguments: (1) that Shell violated various provisions of the PMPA and a franchise agreement when it repossessed the gas station; and (2) that the PMPA does not preempt the Illinois Forcible Entry and Detainer Act and, therefore, that Shell violated Illinois law.

Amos operated a gas and service station in Chicago under a franchise agreement with Shell signed in 1984. Between March 9 and March 28, 1988, Amos wrote 15 insufficient fund checks to pay for gasoline from Shell. They totalled approximately $122,000. At the time, Shell’s delivery drivers were under instructions to accept only cash or certified funds from Amos for gasoline deliveries. Amos physically altered eight of the insufficient fund checks, either by imprinting them or punching holes in them, so that they would appear to be certified.

On March 30, 1988, Frank Katie, Shell’s area manager in charge of Amos’ station, met with Amos to discuss the checks. The parties did not reach a resolution, but they agreed to meet the following day. On the afternoon of March 30, Katie went to the Chicago police department financial crimes unit and informed them that Amos had written the bad checks. He arranged for two police officers to be with him when he met with Amos the following day. One of the policemen testified that they went to the meeting with the intention of arresting Amos.

Amos brought $12,000 in cash to the meeting on March 31, 1988, allegedly the first installment of a payment plan on the insufficient funds checks that would permit him to continue to operate the station. Katie informed Amos that his relationship with Shell was terminated because of the bad checks. The two police officers then arrested Amos. They confiscated the $12,000 and a gun Amos carried in a briefcase. The $12,000 was subsequently credited to Amos’ delinquent account with Shell, but the record is silent on how this occurred. That same day, Katie mailed a certified letter to Amos notifying him that the franchise was terminated.

The next day, April 1, 1988, Katie arrived at the gas station with an armed security guard. Amos was not present. Katie ordered the employees out of the station and closed it. The incident was peaceful, and the employees were not physically threatened. At least one employee, however, testified that the presence of the armed security guard intimidated him.

For several days after the station was closed, Katie and one of Amos’ employees conducted an inventory. Shell gave Amos a credit on the amount owed for equipment repossessed and returned Amos’ personal belongings.

Amos pled guilty to the criminal charges brought against him for intentionally writing bad checks. The court placed him on probation and ordered him to pay Shell the amount he owed it on the bad checks minus his credits as restitution. Shell subsequently brought this civil proceeding to obtain a judgment for the amount owed. To date, Amos has not paid any of the money owed to Shell.

Amos first argues on appeal that the termination of his franchise was unreasonable, and even if reasonable, that it lacked adequate notice under the PMPA. The PMPA provides that a franchise may be terminated if an event occurs which is relevant to the franchise relationship and if such termination would be reasonable. (15 U.S.C.A. §2802(bX2XC) (West 1978).) The Act defines relevant events to include fraud or criminal misconduct by the franchisee in operating the marketing premises, and failure by the franchisee to pay to the franchisor in a timely manner when due all sums to which the franchisor is legally entitled. (15 U.S.C.A. §§2802(cXl), (cX8) (West 1978).) Because the evidence is uncontradicted that Amos wrote 15 insufficient funds checks and altered eight of them so that they would appear to be certified, we find that the termination was reasonable under the PMPA.

Notice that a franchise is to be terminated normally must be given to the franchisee at least 90 days before the date of termination. (15 U.S.C.A. §2804(aX2) (West 1978).) The Act provides, however, that if notice 90 days before termination would not be reasonable, then the franchisor may provide less than 90-day notice if given on the earliest date reasonably practicable. 15 U.S.C.A. §2804(bXlXA) (West 1978).

We find that it would not have been reasonable to require Shell to give Amos notice of termination on March 31 and then to wait 90 days before closing the station. Given Amos’ past behavior, the delay would have unfairly put Shell at risk.

We also find notice was given as early as was reasonably practicable under the circumstances. The record revealed that Shell’s area manager was out of town when Amos wrote the checks and that he gave notice of termination to Amos within one day of returning. Under these circumstances, we find that the notice was given at the earliest practicable date and therefore in compliance with the requirements of the PMPA.

Amos cites numerous cases where courts have upheld notice of less than 90 days, but observes that in each of these cases the franchisee was given some amount of time to cure the default before termination. (See, e.g., Amoco Oil Co. v. D.Z. Enterprises, Inc. (E.D.N.Y. 1985), 607 F. Supp. 595, 601-02; California Petroleum Distributors, Inc. v. Chevron U.S.A., Inc. (E.D.N.Y. 1984), 589 F. Supp. 282, 289 n.2.) We note that the PMPA requires time to cure only if termination is sought because of the franchisee’s failure to exert good-faith efforts to carry out the provisions of the franchise agreement. (15 U.S.C.A. §2802(bX2)(BXi) (West 1978); Glenside West Corp. v. Exxon Co., U.S.A., Division of Exxon Corp. (D.N.J. 1991), 761 F. Supp. 1100, 1117.) If termination is sought for one of the enumerated events “relevant to the franchise relationship,” then no right to cure exists. (15 U.S.C.A. §§2802(bX2XC), (c) (West 1978); Glenside West Corp., 761 F.Supp. at 1117; Wisser Co. v. Mobil Oil Corp. (2d Cir. 1984), 730 F.2d 54, 59 (“[T]he proposition that a franchisee always has the right to cure a default is obviously wrong”).) Given Amos’ behavior, Shell acted reasonably in immediately stemming the flow of bad checks from Amos’ enterprise. No time to cure was required, nor would it have been intelligent, under the circumstances. See Wisser, 730 F.2d at 61 (zero days’ notice upheld); Loomis v. Gulf Oil Corp. (M.D. Fla. 1983), 567 F. Supp. 591, 597 (three days to cure before termination upheld); but see Escobar v. Mobil Oil Corp. (D. Conn. 1981), 522 F. Supp. 593, 600 (outside action by agency is necessary to justify less than 90 days’ notice), rev’d on other grounds (2d Cir. 1982), 678 F.2d 398.

Amos next argues that seizure of the station violated the Illinois Forcible Entry and Detainer Act, which provides: “No person shall make an entry into lands or tenements except in cases where entry is allowed by law, and in such cases he or she shall not enter with force, but in a peaceable manner.” (Ill. Rev. Stat. 1978, ch. 110, par. 9—101.) He stresses that self-help is not the law of Hlinois, and that those with a right to property who are not in possession must obtain a court order to repossess.

Shell responds that the PMPA preempts the Hlinois law. We agree. Section 2806 of the PMPA reads in relevant part:

“To the extent that any provision of this subchapter applies to the termination *** of any franchise *** no State or any political subdivision thereof may adopt, enforce, or continue in effect any provision of any law or regulation *** with respect to termination *** of any such franchise *** unless such provision of such law or regulation is the same as the applicable provision of this subchapter.” 15 U.S.C.A. §2806 (West 1978).

The Act also provides that upon termination, the franchisor may repossess leased premises if the franchise agreement so provides. (15 U.S.C.A. §2804(bXlXBXü) (West 1978).) The motor fuel station lease signed by the parties in 1987 provides in section 10.2: “Following any termination or the expiration of this lease, (a) Shell may reenter and repossess the Premises, without prejudice to any other rights or remedies provided hereunder or by law ***.” The PMPA, read together with the franchise agreement, creates in Shell a right to reenter and repossess the leased premises without a court order. Since the Illinois Forcible Entry and Detainer Act is inconsistent with this remedy, it is preempted by Federal law.

The cases cited by Amos for the proposition that the Illinois law is not preempted are clearly distinguishable. In cases where preemption has not been found, the PMPA and the State law were not in conflict. (See Bellmore v. Mobil Oil Corp. (2d Cir. 1986), 783 F.2d 300, 305; Webber Oil Co. v. Murray (Me. 1988), 551 A.2d 1371, 1374; Johnson v. Mobil Oil Corp. (1987), 364 Pa. Super. 275, 283, 286-90, 528 A.2d 155, 159, 161-63, rev’d on other grounds (1989), 522 Pa. 105, 560 A.2d 124; E.S. Bills, Inc. v. Tzucanow (1985), 38 Cal. 3d 824, 828 n.4, 700 P.2d 1280, 1282 n.4, 215 Cal. Rptr. 278, 280 n.4.) In cases where an inconsistency between State law and the PMPA has been found, the case law uniformly holds , that the State law is preempted. (See Brach v. Amoco Oil Co. (N.D. Ill. 1983), 570 F. Supp. 1437, 1442-43; Mobil Oil Corp. v. Superior Court (1987), 189 Cal. App. 3d 485, 234 Cal. Rptr. 482; California Arco Distributors, Inc. v. Atlantic Richfield Co. (1984), 158 Cal. App. 3d 349, 204 Cal. Rptr. 743; Ricco v. Shell Oil Co. (1981), 180 N.J. Super 399, 434 A.2d 1151.) Because there is an inconsistency in this case, preemption occurs and Shell did not violate the PMPA or the Illinois law.

In finding for Shell, the trial court expressed concern over the behavior of the corporation. We share this concern. If Amos had not intentionally defrauded Shell, his creditor, then the actions of Shell in immediately terminating the franchise would not have met the notice requirements of the PMPA as we construe the case law. The reasonableness of less than 90 days’ notice of termination is to be determined on a case-by-case basis under the particular circumstances of each case. (Marathon Petroleum Co. v. Pendleton (N.D. Ohio 1988), 689 F. Supp. 739, 744, affd (6th Cir. 1989), 889 F.2d 1509.) Thus, our holding today that less than 90 days’ notice was reasonable is limited to the peculiar facts of this case.

For the foregoing reasons, we affirm the order of the trial court.

Affirmed.

JOHNSON and HOFFMAN, JJ., concur.


text:
    CLAIRE V. HANSEN et al., Plaintiffs-Appellants, v. DAVID H. ORTH et al., Defendants-Appellees (Wallace Herdlein et al., Plaintiffs).
    First District (4th Division)
    No. 1—92—1291
    Opinion filed May 27, 1993.
    Rehearing denied June 22, 1993.
    Thomas D. Rosenwein and Kathryn E. Garipay, both of Schaefer, Rosenwein & Fleming, of Chicago, for appellants.
    Richard J. Hoskins, of Schiff, Hardin & Waite, and Michael Silverman, of Kwiatt & Silverman, Ltd., both of Chicago, for appellees.
   JUSTICE CAHILL

delivered the opinion of the court:

Plaintiffs and defendants are neighbors and home owners in Graymoor, a planned community in Olympia Fields, Illinois. A certain ambiance is cultivated. There are no streetlights, curbs, or sidewalks. Property in the community is subject to a recorded declaration of protective covenants, conditions, and restrictions. Two of the covenants are relevant to this lawsuit. A building approval covenant prohibits construction on, or alteration of the exterior of property without approval of the architectural control committee of the Graymoor Land Owners Association board of directors. However, the covenant provides that if a lawsuit is not filed to enjoin unapproved construction before the work is done, the covenant “will be deemed to have been fully complied with.” There is also a land use and building use covenant which prohibits “noxious or offensive activity,” or “anything *** which may or becomes an annoyance or nuisance.” This covenant is silent on the need to file a lawsuit before the nuisance becomes a fact of Graymoor life.

Defendants rely on compliance with the building approval covenant to justify erection of lights on their tennis court. Plaintiffs contend that the lights are a nuisance under the land use covenant, and their suit for injunctive relief, filed after defendants installed the lights, requests that the lights be removed. On cross-motions for summary judgment, the trial court held that the building approval covenant applied to the facts presented to it and found for defendants. On appeal plaintiffs argue that the court erred in applying the building approval covenant because, they allege, they brought the lawsuit under the nuisance language of the land use covenant, which has no time limitation. Plaintiffs also argue that the building approval covenant refers to buildings and therefore does not apply because lights are not buildings within the meaning of the covenant. We agree with the decision of the trial court.

In 1979 defendants sought approval from the architectural committee under the building approval covenant to build a tennis court on their property. The committee approved the request, but stated in a letter to defendants that no exterior lights were to be “attached to or directed towards the court.” Defendants complied, and built the tennis court without lights.

Ten peaceful years passed in Graymoor. Then, in 1989, defendants began to erect six light standards around the tennis court. The president of the association told them that approval was required. Defendants suspended construction and sought approval from the architectural control committee. The committee denied their request. Defendants ignored the decision of the committee and resumed construction of the lights.

Before construction was complete, the association sent a letter accompanied by two ballots to each Graymoor resident. The first ballot asked whether the resident would support a $200 special assessment to fund a lawsuit to enjoin erection of the lights. The second ballot asked if the resident opposed the litigation. A majority of Graymoor residents opposed the litigation and voted against the special assessment.

Meanwhile, defendants finished erecting the lights.

Four months after the lights were in place, plaintiffs filed this lawsuit to enjoin defendants from using the lights and to require removal. Defendants responded with a motion for summary judgment and argued that the complaint was barred by the time limitation in the building approval covenant.

The trial court found that plaintiffs’ lawsuit was barred because they filed it four months after defendants finished erecting the lights. The court relied on two cases, Hawthorne Hills Association v. Lawrence (1980), 85 Ill. App. 3d 377, 406 N.E.2d 869, and Garden Quarter I Association v. Thoren (1979), 76 Ill. App. 3d 99, 394 N.E.2d 878, in finding that the time limitation language in the building approval covenant applied to bar plaintiffs’ lawsuit.

On appeal plaintiffs argue that the court erred in finding that the building approval covenant was applicable because, they allege, their lawsuit is based on the declaration’s “Land Use and Building Use” covenant, which has no time limitation. Plaintiffs attempt to distinguish Hawthorne Hills and Garden Quarter on the grounds that the plaintiffs in those cases relied solely on covenant provisions similar to the building approval covenant in this case, and not on a nuisance covenant.

The complete declaration governs the actions of property owners, and, where possible, the covenants should be read together. Plaintiffs’ complaint states that the tennis lights are an annoyance and a nuisance. They amended their complaint to remove any reference to the building approval covenant. However, a party cannot escape a covenant’s relevance by failing to mention it in the complaint.

Hawthorne Hills and Garden Quarter provide guidance. These cases were lawsuits for injunctive relief brought by a home owners’ association whose property was also subject to a recorded declaration of covenants. Each declaration contained a restrictive covenant governing additions, alterations or changes to buildings with time limitation language almost identical to the language in the building approval covenant in this case. In Hawthorne Hills, the court held that the time limitation of the restrictive covenant barred plaintiff’s action for a mandatory injunction to require defendants to remove a swimming pool and deck from their property because plaintiff filed the suit one month after construction was completed. (Hawthorne Hills, 85 Ill. App. 3d 377, 406 N.E.2d 869.) In Garden Quarter, the court held that plaintiffs action for injunctive relief was barred by the time limitation of the restrictive covenant when plaintiff filed suit more than two months after defendants installed green carpeting on their outside door stoop and stairs. Garden Quarter, 76 Ill. App. 3d 99, 394 N.E.2d 878.

The circumstances in this case are virtually the same, except that this case involves light poles rather than swimming pools or outdoor carpeting. Although plaintiffs state in the complaint that the lights are a nuisance, they offer no evidence to support their claim. There are no allegations that defendants are cavorting about their tennis court under blazing lights at 4 o’clock in the morning or that the glare from the court has besmirched the gentle glow of a Graymoor twilight.

Plaintiffs also argue that the building approval covenant does not apply because it refers to buildings and, they argue, light poles are not buildings. We find little merit in this lexigraphic argument. The building approval covenant refers not only to buildings, but also to structures and to alterations to building sites. A “structure” is something made up of more or less interdependent elements or parts — something having a definite or fixed pattern of organization. We need not scour the case law to safely conclude that a light pole may be a structure wherever English is spoken. We also conclude that the light poles were an alteration of a building site — the tennis court.

Affirmed.

JOHNSON and HOFFMAN, JJ., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN RICE, Defendant-Appellant.
    First District (4th Division)
    No. 1—92—1308
    Opinion filed May 27, 1993.
    Frederick F. Cohn, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Susan Schierl, and Jon J. Walters, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial in the circuit court of Cook County, defendant, Kevin Rice, was convicted of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1985, ch. 561/2, par. 1401(a)(1)) and was sentenced to a 20-year term in the Illinois Department of Corrections.

On appeal, defendant contends (1) the trial court erred in disallowing the testimony of a codefendant given under oath at the motion to suppress hearing prior to trial; (2) the trial court erroneously instructed the jury that if it found sufficient evidence to convict either defendant, it should convict both defendants; (3) the evidence was seized in violation of the fourth amendment and the due process clause of the fourteenth amendment; (4) the trial court failed to instruct the jury on the relevant law; (5) the trial court erroneously denied a severance of his trial from that of his codefendant where their defenses were antagonistic; and (6) the evidence was insufficient to sustain a conviction of possession with intent.

We reverse and remand.

The following pertinent facts were adduced at trial. On June 13, 1989, Chicago police officers Robert Drozd and Michael Cronin observed defendant and codefendant traveling north on Sacramento Avenue. Officer Cronin determined that the car was going 40 miles per hour in a 30-mile-per-hour zone and the officers proceeded to follow it. Officer Drozd motioned for defendant to pull over and he complied.

Officer Drozd got out of the car and approached defendant’s vehicle. Through the open window, the officer saw defendant hand codefendant, who was in the passenger seat, a brown bag which codefendant placed in his waistband area. Codefendant then exited the car, and Officer Drozd patted down the area where codefendant placed the brown bag, believing it to be a gun. Officer Drozd removed the bag from codefendant, unwrapped it and saw that it contained a hard rock, white substance he recognized to be a narcotic. Lab tests performed later determined the substance to be heroin. Officer Drozd placed codefendant under arrest.

Contemporaneously, Officer Cronin was talking to defendant, who had also stepped out of the car. Officer Drozd informed Officer Cronin that he observed defendant pass the bag containing the substance to codefendant, and defendant was placed under arrest.

Prior to trial, a suppression of evidence hearing was conducted. Codefendant testified that he placed the brown bag in his underpants about two hours before the police pulled him and defendant over. At trial, defense counsel moved to admit this testimony into evidence because codefendant indicated his desire to invoke his fifth amendment privilege against self-incrimination at trial. The trial judge ruled that codefendant’s testimony would not be admitted at trial.

Defendant was found guilty of possession of a controlled substance with intent to deliver and was sentenced to 20 years in the Illinois Department of Corrections. He appeals.

Initially on appeal, defendant posits that the trial court erroneously failed to admit codefendant’s exculpatory testimony given at the motion to suppress hearing. We agree.

Codefendant’s testimony was properly admissible under the statement against interest exception to the hearsay rule (Fed. R. Evid. 804(bX3)), which requires the declarant to be unavailable as a witness. The rule states:

“A statement which was at the time of its making *** so far tended to subject him [the declarant] to civil or criminal liability, *** that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”

In United States v. Garcia (7th Cir. 1993), 986 F.2d 1135, the court outlined a test used to determine whether a statement falls within the confines of Rule 804(b)(3). Admission is predicated on the satisfaction of the following prongs: (1) the declarant must have been unavailable to testify, (2) the declarant’s statements must have been against his penal interest, and (3) corroborating circumstances must support the trustworthiness of the statement. Garcia, 986 F.2d at 1139; see United States v. Garcia (7th Cir. 1990), 897 F.2d 1413.

Our evaluation of the first prong of the Garcia test demonstrates, contrary to the State’s assertions, that the declarant was indeed unavailable. Codefendant’s utilization of his fifth amendment privilege against self-incrimination constitutes a refusal to testify encompassed within the requisite unavailability part of the test. (Garcia, 986 F.2d at 1139.) The State argues that codefendant was not unavailable for purposes of Rule 804(b)(3) because his unavailability was not attributable to a physical condition. The unavailability aspect of the rule, however, is not so rigid.

The second prong of the Gareia test, the statements must have been against the declarant’s penal interest, also fails to merit lengthy analytical discussion. The advisory committee’s notes pertaining to Rule 804(b)(3) state in part: “Whether a statement is *** against penal interest must be determined from the circumstances of each case.” (Fed. R. Evid. 804(b)(3), Advisory Committee’s Notes.) Codefendant testified that he solely possessed the bag containing the heroin and that defendant did not hand it to him as Officer Drozd contended. This statement subjected codefendant to criminal liability and was accordingly contrary to his penal interest.

Examination of the third part of the Garcia test, the presence of corroborating circumstances sufficiently indicative of the statement’s trustworthiness, is less facile.

Neither Rule 804(b)(3) nor the associated notes specifically delineate what constitutes corroborating circumstances. “The requirement of corroboration should be construed in such a manner as to effectuate its purpose of circumventing fabrication,” thus ensuring the trustworthiness of the statement. (Fed. R. Evid. 804(b)(3), Advisory Committee’s Notes.) In accordance with the spirit of the rule, we will consider several factors promoting reliability which may constitute corroborating circumstances.

First, we do not believe that codefendant had a motive to fabricate. The record fails to evince a close relationship between defendant and codefendant which would increase the likelihood of fabrication to protect a friend. Second, codefendant’s statements do not contain inconsistencies reflecting unfavorably on his veracity. Third, there is no evidence that codefendant was coerced into making the statement exonerating defendant. Fourth, there is also no evidence that the statement was made in order to curry favor with authorities.

Supplemental to the aforementioned factors indicative of trustworthiness, we will consider a widely interpreted and utilized standard promulgated by the Supreme Court of the United States for the express purpose of analyzing reliability of a declaration against penal interest. Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038, formulated four factors which provide a declaration against penal interest with some indicia of trustworthiness: (1) the statement was made to a close acquaintance shortly following the crime; (2) the statement was corroborated by other evidence; (3) the statement was against the declarant’s interest and self-incriminatory; and (4) the declarant was subjected to sufficient cross-examination. Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49.

This court has precedingly used these factors mechanistically as preconditions for admissibility. (See People v. Powell (1985), 139 Ill. App. 3d 701; People v. Newell (1985), 135 Ill. App. 3d 417; People v. Bracey (1981), 93 Ill. App. 3d 864.) This, however, is no longer the correct approach in Illinois. Our supreme court has stated: “The four factors which the court enumerated in Chambers *** are to be regarded simply as indicia of trustworthiness and not as requirements of admissibility.” People v. Bowel (1986), 111 Ill. 2d 58, 67.

Furthermore, we acknowledge, as did the court in Bowel, that Rule 804(b)(3) was developed subsequent to Chambers, and had the Chambers factors been intended as a threshold for admissibility, they would have been included in the rule. (Bowel, 111 Ill. 2d at 68.) Instead, the rule does not contain corroborating circumstances that must be satisfied in order to properly admit a declaration against penal interest. Therefore, we use the Chambers factors only as considerations, not as prerequisites in the ultimate determination of admissibility.

Here, codefendant’s testimony satisfies three of the four Chambers factors. As previously discussed, codefendant’s statement was corroborated by other evidence and it was against his penal interest. Codefendant was also exposed to cross-examination by the State at the suppression of evidence hearing. The unfulfillment of the initial prong of the Chambers test does not bear adversely upon the overall reliability of the statement.

Although seemingly mindful of Bowel’s interpretation of Chambers, the State incongruously urges us to accept the assertion that because codefendant’s testimony fails to satisfy all of the Chambers factors, it is automatically inadmissible. In view of the foregoing, this position is without merit.

“The *** [trial] court must find only that sufficient corroborating circumstances exist and then permit the jury to make the ultimate determination concerning the truth of the statements.” (United States v. Garcia (7th Cir. 1993), 986 F.2d at 1141.) We find that codefendant’s testimony was sufficiently trustworthy and that the trial court erroneously failed to allow the jury to consider it.

We are unpersuaded by the State’s argument that this exclusion is harmless error. The State opines that due to the overwhelming evidence of defendant’s guilt and due to the trial court’s finding that co-defendant’s testimony lacked credibility, the verdict was unaffected by the exclusion of the testimony. We believe that, had codefendant’s testimony exonerating defendant been admitted, the outcome might have been different.

In light of the above determination, a review of defendant’s additional contentions is superfluous.

For the aforementioned reasons, the judgment of the circuit court of Cook County is reversed and this cause is remanded to the trial court for a new trial.

Reversed and remanded.

HOFFMAN and CAHILL, JJ., concur.