author: Mr. JUSTICE MEJDA

text:
    The People ex rel. William J. Scott, Attorney General, Plaintiff-Appellant, v. Cardet International, Inc., et al., Defendants-Appellees.
    (No. 59947;
    First District (3rd Division)
    December 5, 1974.

      William J. Scott, Attorney General, of Chicago (Maria A. Elden and Howard R. Kaufman, Assistant Attorneys General, of counsel), for appellant.
    Freeman and Tingler, of Chicago (Robert A. Tingler and Richard A. Redmond, of counsel), for appellees.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff, People of the State of Illinois ex rel. William J. Scott, Attorney General of the State of Illinois, filed a complaint against Cardet International, Inc. (Cardet), Sheldon Serlin, its president, A1 Schwarz, its executive vice-president, and M.L.C. Corporation, Inc. (MLC), alleging violations and a conspiracy to violate the Illinois Consumer Fraud Act (111. Rev. Stat. 1971, ch. 121%, par. 261 et seq.). The violation allegedly arose out of the sale and financing of marketing franchises in Cárdet. An order was entered on motion of defendant MLC to dismiss the complaint’ against it. A further order was entered denying plaintiff’s motion to modify the dismissal order by deleting the finding that there was no just reason to delay enforcement or appeal (Illinois Supreme Court Rule 304(a)) and for leave to file an amended complaint. Plaintiff appeals from both orders.

On appeal, plaintiff contends that:

“1) The sale of distributorships' by a marketing franchiser constitutes the sale of “merchandise” under the Illinois Consumer Fraud Act;
2) The trial court erred in holding that the sale of distributorships and the loans extended to finance the purchase thereof were business transactions and outside the scope of the Illinois Consumer Fraud Act;
3) The Illinois Consumer Fraud Act is applicable to a loan company which commits fraud in connection with the sale of “merchandise” by a third party;
4) The trial court erred in denying plaintiff’s motion for leave to file an amended complaint”

The allegations of the complaint which were admitted for the purposes of the motion to dismiss set forth the following facts. Cardet represented itself as being in the marketing of household and personal items and offered the sale of franchises on two levels — distributors and area managers. As to the first, upon the payment of $5,000, a buyer could become a distributor and receive an exclusive territory of 2500 residences in which he could sell Cardet products by distributing catalogs to the homes, and the public would send orders directly to Cardet. The merchandise would then be delivered to the distributor for delivery to the customer. Distributors were to receive a 25% sales commission.

The second level of franchises was that of area manager. Upon payment of $5,000, the area manager would receive an exclusive territory of 50,000 residences from which he was to recruit new distributors. The area managers were to receive from Cardet a graduated fee for each distributor and also a 5% commission on all merchandise orders obtained by each distributor in their territory.

The complaint consisted of three counts, the first of which alleged that Cardet, Serlin and Schwarz made certain misrepresentations of fact to induce the purchase of Cardet franchises which included alleged misrepresentation concerning the organization of Cardet; the affiliation of Dick Butkus (a prominent football player) with Cardet; the financial success of previous distributors and area managers; and Cardet’s policy concerning the repurchase of franchises from dissatisfied buyers.

Count II of the complaint was directed against all of the defendants, including MLC, described as an independent loan company which financed the purchase for 47 of the (approximately) 80 franchises sold by Cardet. Defendant MLC allegedly made misrepresentations of fact and concealed other material facts in connection with the making of pinchase loans to the buyers of Cardet franchises. The alleged misrepresentations included statements as to the past financial success of Cardet franchisees which enabled early repayment of their loans; the early repayments enabled MLC to reduce the monthly payments required on new loans; the only collateral required to secure a purchase loan was the Cardet franchise itself; and MLC was a subsidiary of a bank through which the financing could be handled. The material facts allegedly concealed by defendant MLC included the existence of an agreement between MLC and Cardet by which Serlin and Schwarz would receive money for each loan made to a Cardet prospect in sums varying from $200 to $825 for at least 19 of the loans made by MLC, which payments were added to the total cost of the loans. It was further alleged that MLC concealed the nature of the documents executed to obtain the loans and that the loan from MLC would be secured in part by a mortgage on the home of the Cardet prospect.

Count III of the complaint alleged that all of the defendants conspired to violate the Illinois Consumer Fraud Act. Defendant MLC made a motion to dismiss the complaint for failing to state a cause of action against it and that the Attorney General lacked standing to sue and bring the action. The trial court granted the motion to dismiss on the ground that the Illinois Consumer Fraud Act does not apply to business loans utilized in the purchase of a franchise or business. Thereafter, the trial court denied plaintiffs motion for leave to file an amended complaint. At the hearing, plaintiff did not present a proposed amended complaint but stated that in part its amended complaint would allege that the facts set forth in the original complaint as to MLC constituted a violation of the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1971, ch. 121%, par. 137.1 et seq.). Plaintiff appeals from these orders which concern only Counts II and III of the complaint and involve only defendant MLC.

Plaintiff first contends that the sale of distributorships and area managerships by Cardet constituted the sale of “merchandise” under the Illinois Consumer Fraud Act. Merchandise is defined as “any objects, wares, goods, commodities, intangibles, real estate situated outside the State of Illinois, or services.” (Ill. Rev. Stat. 1971, ch. 121%, par. 261 (b).) Although the term “intangibles” has not been previously construed within this statutory definition, it must be assumed that the legislature intended it to be understood in its ordinary sense. “Intangible” has been defined as property which has no intrinsic value but which is representative or evidence of value, such as certificates of stocks, bonds, promissory notes and franchises (In re Estate of Berman (1963), 39 Ill.App.2d 175, 179, 187 N.E.2d 541.) Cardet’s licensing agreements provided that the buyers of distributor and area manager positions acquired the right to use the Cardet trade name, the good will of Cardet, and certain operational services to facilitate the carrying on of whichever type of franchise was purchased. Clearly, the operational services which a buyer was to receive from Cardet are expressly included within the definition pf “merchandise” in sectipn 1(b) pf the statute (Ill. Rev. Stat. 1971, ch. 121%, par. 261(b)). .Good will and the right to the use of a trade name each constitute property. (United States Ozone Co. v. United States Ozone Co. (7th Cir. 1932), 62 F.2d 881.) Moreover, each is property which has no intrinsic value of its own but only evidences value. As the sale of Cardet distributorships and area managerships consisted of the acquisition of both services and intangibles, these franchises did constitute “merchandise” under the Illinois Consumer Fraud Act.

Plaintiff next contends that the trial court erred in holding that the Illinois Consumer Fraud Act was inapplicable to the business loans used for the purchase of a franchise. Plaintiff argues that the trial court’s construction of the statute is contrary to the express provisions of the statute itself, the legislative intent, and the case law authority. We disagree. The allegations against defendant MLC contained in Counts II and III of the complaint charged violations of section 2 of the Illinois Consumer Fraud Act and the defendants’ participation in a conspiracy to commit such violation. The Act provides in pertinent part as follows.:

“AN ACT to protect consumers and borrowers against fraud and certain other practices by or on behalf of sellers and lenders of money and to give the Attorney General certain powers and duties for the enforcement thereof.
# # #
§ 1. * * * (b) The term “merchandise” includes any objects, wares, goods, commodities, intangibles, real estate situated outside the State of Illinois, or services;
(c) The term “person” includes any natural person or his legal representative, partnership, corporation (domestic and foreign), company, trust, business entity or association, and any agent, employee, salesman, partner, officer, director, member, stockholder, associate, trustee or cestui que trust thereof;
(e) The term “consumer” means any person who purchases or contracts for the purchase of merchandise not, for resale in the ordinary course of his trade or business but for his. use or that of a member of his household or in connection with the operation of his household.
§ 2. The act, use or employment by any person .of any deception, fraud, false pretense, false promise, misrepresentation,, or the concealment, suppression, or omission of any material fact with intent that others rely upon such .concealment, suppression or omission, in connection with tire, sale .qr advertisement of any merchandise, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice; 9 9 9.” 111. Rev. Stat. 1971, ch. 121%, pars. 261, 262.

It is to be noted that section 2 of the Act does not contain the word “consumer,” but employs the word “person” in respect to those protected from unlawful practices. The plaintiff asserts that the omission of the word “consumer” is reflective of a legislative intent that the section should be given a broad construction to afford protection to all buyers of “merchandise.” However, by defining “consumer” in section 1(e), it is evident that the legislature intended within the definition of that term that one protected from unlawful practices must not only be a “person” but must also be a person acting in the capacity of a “consumer.” Any other interpretation would make the inclusion of a definition of “consumer” in the statute totafiy unnecessary. This construction also finds support in the legislature’s expressly stated purpose of providing an act to “protect consumers and borrowers.” Thus, before the question arises of whether the defendants’ activities constituted unlawful practices, it must be shown that the purchaser of a Cardet franchise was buying such in the capacity of a “consumer.”

Plaintiff cited Rice v. Snarlin, Inc. (1970), 131 Ill.App.2d 434, 266 N.E.2d 183, for the rule that the mere characterization of a sale of merchandise as a business transaction will not defeat the applicability of the Consumer Fraud Act. In Rice, the plaintiffs daughter contracted with the defendant to be listed in defendant’s directory of models which was to be mailed to 500 companies which could directly therefrom retain the services of a model. The alleged violation of the Act consisted of the concealment of the material facts that the directory was merely an advertising flyer which was sent to 500 companies at random without any consideration of their need for models. Although the court did reject without discussion the defendant’s contention that the plaintiff’s daughter was not a consumer under the Consumer Fraud Act, the ceritral issue in the case was whether the Act authorized private suits for damages. The precise issue here is whether a franchise purchaser was a consumer subject to the Act. Plaintiff maintains that as in Rice, the purchaser in the instant case is also a consumer.

Plaintiff argues that even if a Cardet franchise purchaser must be a “consumer” within the statutory definition of that term, such a purchaser would qualify, as the franchise was purchased not for resale but to be carried on as a personal business. If viewed in isolation, the definition of “consumer” in section 1(e) would appear to encompass an individual who makes a purchase of a franchise in that the purchase is made not with the intention of reselling but for the purchasers own personal business use. However, plaintiff’s complaint was filed on March 25, 1973, under the Consumer Fraud Act as it then provided. On October 1, 1973, an amendment to the Act become effective (111. Rev. Stat. 1973, ch. 121%, pars. 261, 262) which provided in pertinent part:

“AN ACT to protect consumers and borrowers and businessmen against fraud, unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce * # *.
# # #
§ 1. * * * (f) The terms “trade” and “commerce” mean the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of the State.
§ 2. Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment^ suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the “Uniform Deceptive Trade Practices Act”, approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby. In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act.”

It is apparent that the prior act upon which the allegations against defendants were grounded has been substantially amended to afford protection for not only “consumers and borrowers” but also “businessmen,” and not just “in connection with the sale or advertisement of merchandise” but from sharp practices “in the conduct of any trade or commerce.” As stated in Western National Bank v. Village of Kildeer (1960), 19 Ill.2d 342, 353-54, 167 N.E.2d 169:

“The interpretation placed upon a statute by the legislative department may go far to remove doubt as to its meaning, and it is proper for us to consider the subsequent amendment to a statute in determining the intent and meaning of the statute prior to amendment. [Citations.] The addition of a new provision in a statute by amendment is an indication of the absence of its implied or prior existence. [Citation.]”

In the instant case, the amendment of the Consumer Fraud Act in 1973, to include protection for “businessmen” acting as such in the conduct of “any trade or commerce,” indicates that the legislature did not envision that a purchaser of a franchise would be within the definition of a “consumer” under the previous act. Also significant is the Illinois Franchise Disclosure Act, effective January 1, 1974, which contains preventive and remedial measures to cure sharp practices in the sale and financing of franchises such as are here alleged against defendants Cardet, Schwarz and Serlin. (Ill. Rev. Stat. 1973, ch. 121%, par. 701 et seq.)

Plaintiff cites decisions from other jurisdictions wherein consumer fraud acts similar to the prior Illinois act have been held applicable to the sale of franchises. We find the cited cases to be distinguishable. In Kugler v. Koscot Interplanetary, Inc. (1972), 120 N.J. Super. 216, 293 A. 2d 682, and State ex rel. Turner v. Koscot Interplanetary, Inc. (Ia. 1971), 191 N.W.2d 624, state consumer fraud acts were held applicable to the sale of franchises, but unlike Illinois, neither the New Jersey nor Iowa act contained definitions of “consumer.” In State ex rel. Sanborn v. Koscot Interplanetary, Inc. (1973), 212 Kan. 668, 512 P.2d 416, misrepresentations made to induce the purchase of franchises were held to be violative of the Kansas Buyer Protection Act, which does contain a definition of “buyer” substantially the same as our Act’s definition of “consumer.” However, unlike the Illinois Act, the Kansas statute had not been amended to reflect a narrower scope to a prior use of the term “buyer.”

We conclude that the purchaser of a Cardet franchise, whether a distributorship or an area managership, was not a consumer within section 1(e) of the prior act. It therefore follows that defendants’ activities in extending financing “in connection with” the purchase of these franchises could not result in the prior act becoming applicable to such financing. This is because the defendants’ activities, although in connection with the purchase of 47 franchises, were not in connection with their sale to one who came within the Act’s protection.

The same rationale defeats any liability on the part of the defendants under Count III of plaintiff’s complaint which alleged defendants’ involvement in a conspiracy to violate the prior Consumer Fraud Act. The gravemen of the conspiracy charge was the alleged violation of the statute. As the franchise pinchases and the loans made in connection therewith are not within the Act, there can be no violations of the statute to sustain Count III.

We hold that the trial court did not err in dismissing the plaintiff’s complaint for failure to state a cause of action under the Illinois Consumer Fraud Act as to defendant MLC. We next proceed to a consideration of whether the trial court erred in denying plaintiffs motion for leave to file an amended complaint.

Plaintiff contends that it was reversible error for the trial court to deny its motion for leave to file an amended complaint without Considering and malting a finding on whether the proposed amendment would cure the defect in the original complaint. Again, we disagree. Following the dismissal of the original complaint, the plaintiff moved for leave to file an amended complaint on the basis that the sales and financing of Cardet franchises were violative of the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1971, ch. 121%, par. 137.1 et seq.) The plaintiffs motion for leave to amend was not accompanied by a copy of the proposed amended complaint. There is no presumption in the law that a proposed amendment will be a proper one, and it is not error to refuse leave to file an amendment which is not presented to the trial court and where there are no means of determining whether the proposed amendment will be a proper and sufficient one. (Deasey v. City of Chicago (1952), 412 Ill. 151, 105 N.E.2d 727; Dilcher v. Schorik (1904), 207 Ill. 528, 69 N.E. 807; McFarland v. Claypool (1889), 128 Ill. 397; Thomas v. Carroll Construction Co. (1957), 14 Ill.App.2d 205, 144 N.E. 2d 461.) We find no abuse of discretion in the trial court’s denying the plaintiffs motion for leave to amend. Deasey v. City of Chicago, supra.

For the reasons stated, the orders of the Circuit Court of Cook County are affirmed.

Affirmed.

McNAMARA, P. J., and DEMPSEY, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE McGLOON

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lorenzo Dalfonso, Defendant-Appellant.
    (No. 59581;
    First District (3rd Division)
    December 5, 1974.

      Jerome Rotenberg, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

The present appeal is taken by the defendant, Lorenzo Dalfonso, from a trial court order entered September 18, 1973, finding that the defendant remained incompetent to stand trial on the charges of arson and conspiracy pending against him.

We reverse and remand.

Defendant contends on appeal (1) that the trial court erred in ruling that the defendant was unfit to stand trial and (2) that a defendant whose mental capability is maintained through the use of prescribed medication is competent to stand trial.

The defendant, Lorenzo Dalfonso, was indicted and charged with arson and conspiracy to commit arson in connection with the burning of a building on April 13, 1971. Pursuant to the State’s Attorney’s request, a competency hearing was held on September 26, 1972, concerning defendant’s competency to stand trial. At this hearing, the trial court sitting without a jury found the defendant incompetent to stand trial and ordered the defendant committed to the Illinois State Hospital at Chester, Illinois, until such time as he might regain full competency to be tried on the charges pending against him. On May 2, 1973, defendant filed a motion seeking a release from confinement, and pursuant to this motion another hearing was held on September 18, 1973, to determine whether the defendant had recovered his competency sufficiently to stand trial. At this hearing the defendant executed a jury waiver, and the trial judge, after hearing all the evidence, entered a finding that the defendant was still not competent to stand trial. It is this ruling of the trial judge of September 18, 1973, which gives rise to the present appeal.

At the hearing in question, the only witness who testified as to the competency of the defendant to stand trial was Dr. Robert A. Reifman, M. D.) Assistant Director of the Psychiatric Institute of the Circuit Court of Cook County. Dr. Reifman testified that he had examined the defendant on September 12, 1973 and that on the basis of that examination had concluded that the defendant was able to understand the nature and purpose of the proceeding against him, was able to assist counsel in his own defense, and was mentally fit and competent to stand trial. Dr. Reifman also testified that when he examined the defendant and at the time of the competency hearing the defendant was taking a drug known as Haldol, and that if the defendant failed to receive this drug he could be susceptible to mental agitation of a type that would render him unfit to stand trial. However, Dr. Reifman went on to state that if the medication were taken away it was not certain that mental agitation would reappear.

The standard to be used in determining one’s fitness for trial is set forth as follows in section 5 — 2—1(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—1(a)):

“(a) For the purposes of this Section a defendant is unfit to stand trial or be sentenced if, because of a mental or physical condition, he is unable:
(1) to understand the nature and purpose of the proceedings against him; or
(2) to assist in his defense.”

In the case at bar, the only witness who testified at the hearing of September 18,1973, concerning the competency of the defendant to stand trial was Dr. Reifman who clearly stated that the defendant was able to understand the nature and purpose of the proceeding against him and also able to assist counsel in his own defense. It is true that Dr. Reifman did further state that if the defendant’s medication were taken away the defendant would be susceptible to the type of mental agitation that could render him unfit to stand trial. However, in determining whether or not the defendant had recovered sufficiently his competency to stand trial, the test is not whether the defendant will maintain his competency for some time in the future, but whether or not at the time of the competency hearing the defendant was competent to stand trial. Under this test and considering the evidence presented at the hearing, we believe the trial court erred in ruling that the defendant remained incompetent, to stand trial.

Furthermore, we think that a defendant whose mental capabilities are maintained through the use of prescribed medication, is competent to stand trial. Although our research has disclosed no Illinois case in point, the courts of several other states have ruled on this specific issue. In State v. Hampton (1989), 253 La. 399, 218 So.2d 311, the Supreme Court of Louisiana considered the defendant’s contention that he was incapable of standing trial because his sanity, induced by the drug Thorazin, was “synthetic.” In ruling that the defendant was fit to stand trial, the Louisiana Supreme Court stated as follows:

“That this condition has resulted from the use of a prescribed tranquilizing medication is of no legal consequence. Under the codal test, the court looks to the condition only. It does not look beyond existing competency and erase improvement produced by medical science.” State v. Hampton (1969) 253 La. 399, 403, 218 So.2d 311, 312; see also State v. Plaisance (1968) 252 La. 212, 210 So.2d 323.

Similarly, in the very recent case of State v. Potter (1974), 285 N.C, 238, 204 S.E.2d 649, the North Carolina Supreme Court considered defendant’s contention that his sanity was “synthetic” because it depended upon taking the prescribed medication, Haldol. Quoting extensively from Hampton, supra, the court found the defendant, although his competency was maintained through the use of a prescribed drug, competent to stand trial. See also State v. Hancock (1967), 247 Ore. 21, 426 P.2d 872; State v. Rand (1969), 20 Ohio Misc. 98, 247 N.E.2d 342.

Applying the reasoning in the above cases to the case at bar, we believe that the defendant, Lorenzo Dalfonso, is competent to stand trial even though his competency may depend upon taking the prescribed medication, Haldol.

For the reasons stated above, we reverse and remand with directions that the trial court enter a finding that the defendant is fit to stand trial.

Order reversed and cause remanded with directions.

McNAMARA, P. J., and MEJDA, J., concur.


author: Mr. JUSTICE HALLETT

text:
    Rose Block, Plaintiff-Appellant, v. Blue Shield Plan of Illinois Medical Service, Inc., Defendant-Appellee.
    (No. 58874;
    First District (1st Division)
    November 18, 1974.

      Alvin R. Becker, of Chicago, for appellant.
    Kirkland & Ellis, of Chicago (Donald J. Duffy and Gary M. Elden, of counsel), for appellee.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The plaintiff originally commenced this action against said defendant (hereinafter Blue Shield) individually and as a class action on behalf of all subscribers similarly situated, alleging, in substance, that Blue Shield had refused to pay its 80% of a claim submitted to it by her attending physician although, under the terms of her policy, said claim should have been paid. Said complaint was stricken, an amended complaint of a similar character was filed, all class allegations and prayers of the amended complaint were stricken and dismissed, the remaining individual claim of the plaintiff finally went to trial on an answer challenging only the damages (the plaintiff claimed $175 and the defendant conceded $128) and a judgment was finally entered for the smaller sum, which the defendant tendered in open court but the plaintiff refused.

The plaintiff has appealed to this court, a record has been filed, both parties have filed briefs, and the case has been argued orally and taken. There remains, however, a motion, taken with the case, by the defendant to dismiss the appeal for want of jurisdiction on the ground that, although the order here challenged was actually entered on July 14, 1972, the plaintiff’s notice of appeal erroneously designated it as having been entered on April 28, 1972. The plaintiff answers by now seeking to amend her notice of appeal to specify the correct date. We hold that this cannot now be done and therefore allow the defendant’s motion and dismiss the appeal.

This, of course, calls for a rather detailed review of the various pleadings, motions, orders, judgments and the notice of appeal.

The plaintiff originally began this action sometime in 1971. On April 21, 1972, the trial court, on the defendant’s motion directed against tire original complaint, filed a written opinion and, on April 28, 1972, held that there was not “a sufficient community of interest in the subject matter or remedy to support a class action” and dismissed “the class action allegations” but gave the plaintiff leave to.file an amended complaint, which was done on June 20, 1972.

This amended complaint was virtually identical with the original complaint. It was brought by the plaintiff individually and as. a class action on behalf of all subscribers similarly situated, attaching a copy of her “Non-Group” Blue Cross, Blue Shield policy, and alleging that said policy was identical with other policies issued to other “non-group” subscribers; that, under article 11(e)(1)(2) of said policy, the defendant agreed to pay 80% of the usual and customary medical charges for care rendered in a hospital by the attending physician but that article IIIA(5) of said policy expressly excluded charges of a. physician where his services are only rendered as a consultant; that plaintiff from May 25, 1971, through June 11, 1971, was a patient in the Evanston Hospital and received medical care from her attending physician, Dr. Adelson, who consulted with Dr. Brieur on behalf of plaintiff; that the said consultant’s bill for $45 was submitted to the defendant first and that 80% thereof ($36) was paid hipa; that thereafter said attending physican’s bill for $247 was submitted to the defendant, which refused to pay any part thereof on the ground that it had already received (and paid its 80% share)) Dr. Brieur’s. bill first; that such is the defendant’s “unalterable practice and custom,” contrary to the express terms of the policy; that she brings this, auction on behalf of herself as an individual and on behalf of all other subspribers who are similarly situated; and that such persons are “so numerous that it would be impractical to bring them before this Court. It would also be manifestly unfair to such persons to require them to bring their separate suits. The claim of Rose Block is typical and almost identical with the claims of such other persons except for the amounts involved. Questions of law and fact with respect to such other claims are common to or identical with respect to the claim of Rose Block.” It sought a judgment for $175 on her individual claim, that the court declare that all similarly situated subscribers are entitled to be paid for the medical charges of their attending physicians, that the defendant be required to disclose to the court all similar cases and deposit certain funds on hand in court, that a receiver be appointed and that a judgment be entered “for costs, expenses and for reasonable attorney’s fees out of the common fund established and created to be distributed.”

On July 6, 1972, the defendant filed a motion to dismiss all class-allegations of the amended complaint and to transfer the remaining individual claim for damages to the law docket. On July 14, .1972, the trial court entered an order striking and dismissing all allegations and prayers relating to the purported class action, giving the defendant- 30 days to answer the remaining allegations and the plaintiff 3 days to-reply, denying the.motion to transfer to the law docket and setting the. case for trial on August 25, 1972. No words of finality (“no just cause,” etc.) were included. On July 17, 1972, the defendant filed its answer to so much of said amended complaint as remained, stating that with “respect to plaintiff s individual cause of action, defendant contests only the question of damages.”

On January 8, 1973, the cause came on for trial, and, after such hearing, the court entered a final judgment order that the “plaintiff Rose Block have and recover of and from defendant Blue Shield Plan of Illinois Medical Service, Inc., in the sum of $128.00 and that execution issue,” and reciting that “defendant in open court has tendered $128.00 plus costs to plaintiff. Plaintiff has refused said proper tender.”

On February 2, 1973, the plaintiff served and filed a notice of appeal “from the order of the Circuit Court of Cook County, Illinois, entered in said cause on April 28, 1972, insofar as said order struck from the amended complaint all allegations with respect to maintaining a class or representative suit and from the judgment order of January 8, 1973.” It prayed that said judgment be reversed and the cause remanded for a trial on the issue and proofs of the class or representative allegations of the amended complaint.

The plaintiffs praecipe requested the clerk to certify an appeal record containing the amended complaint, the motion to dismiss the class allegations and to transfer to the law docket the plaintiffs individual claims for damages, the order entered April 28, 1972, dismissing the class suit allegations, the defendant’s answer, the judgment order entered January 8, 1972, and the notice of appeal. The defendant then filed an additional praecipe, adding to the record on appeal its motion to dismiss, filed February 7, 1972, its later motion to dismiss, the court’s opinion, filed April 21, 1972, the additional praecipe and a stipulation filed on February 15, 1973. On April 4, 1973, a record on appeal as so designated was filed, and on June 20, 1973, the plaintiffs opening brief was filed.

On July 11, 1973, the defendant filed its appellee brief and also moved to dismiss the appeal for want of jurisdiction on the ground that the order challenged in the appellant’s brief (the order of July 14, 1972, which became appealable as of January 8, 1973, when the final judgment was entered disposing of the entire case) was neither specified in the notice of appeal nor included in the record on appeal. The plaintiff answered, conceding that the order from which she intended to appeal was in fact entered on July 14, 1972, and that her notice of appeal specified and the record on appeal included only the earlier order of April 28, 1972. She cited and replied upon Supreme Court Rule 303(c)(4) relating to the amendment of notices of appeal and prayed that her notice of appeal be amended on its fact so as to specify the order “entered on July 14, 1972, rather than April 28, 1972,” that she be given leave to add a certified copy of the order entered July 14, 1972, to the record on appeal and that the appellee’s motion to dismiss be denied.

On July 11, 1973, the appellant’s motion to amend the record on appeal instanter was allowed, but her appeal was dismissed “for lack of final order. See Supreme Court Rule 304(A).” Subsequently, on August 21, 1973, this court reversed itself, allowed the notice of appeal to be amended, and reinstated the appeal.

On December 11, 1973, the appellee, citing several recently decided cases, moved for leave to cite said opinions and again urged this court to deny tire appellant’s “untimely” motions for leave to amend her notice of appeal and the record on appeal and that this court dismiss the appeal for want of jurisdiction for lack of a proper notice of appeal and record on appeal. This motion was taken with the case and we now deal with it.

Supreme Court Rule 303 (111. Rev. Stat. 1971, ch. 110A, § 303) in pertinent parts, provides as follows:

“303. (Supreme Court Rule 303). Appeals From Final Judgments of the Circuit Court in Civil Cases
(a) Time. * * * the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the motion.
* # *
(c) Form and Contents of Notice of Appeal.
# » #
(2) It shall specify the judgment or part thereof appealed from and the relief sought from the reviewing court.
# # #
(4) The notice of appeal may be amended without leave of court within 30 days after the entry of tire judgment or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or nonjury case, within 30 days after the entry of the order disposing of the motion. Thereafter it may be amended only on motion, in the trial court before the appeal is docketed and in the reviewing court after the appeal is docketed. Amendments relate back to the time of the filing of the notice of appeal. An amendment specifying a part of the judgment not specified in the original notice of appeal may not be made later than 30 days after the entry of the judgment, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or nonjury case, later than 30 days after the entry of the order disposing of the motion, except upon motion pursuant to paragraph (e) of this rule.
* # #
(e) Extension of Time in Certain Circumstances. On motion supported by a showing of reasonable excuse for failure to file a notice of appeal on time, accompanied by the proposed notice of appeal, filed in the reviewing court within 30 days of the expiration of the time for filing a notice of appeal, the reviewing court may grant leave to appeal and order the clerk to transmit the notice of appeal to the trial court for filing.”

The following comments by the Illinois Supreme Court Rules Committee are pertinent:

“Paragraph (c) does not change the substance of its predecessor, former Rule 33, which was in effect prior to 1967, except that subparagraph (4) eliminates the necessity of obtaining an order’ of court to amend the notice of appeal within 30 days after the entry of the judgment. The last sentence of subparagraph (4) reduced from 60 days to 30 days the time within which an appeal may be taken by amendment of the notice of appeal, from a part of the judgment not specified in the original notice of appeal. This conforms to the reduction from 60 to 30 days of the time for filing notice of appeal, but the 30 days may be enlarged by a motion pursuant to paragraph (e) of tins rule.
# # #
Paragraph (e), which is similar to Federal Rule of "Appellate Procedure 4(a), provides an additional 30-day ‘safety-valve’ for the filing of a notice of appeal upon a showing to the reviewing court of reasonable excuse for failure to file a notice of appeal on time, i.e., within the original 30-day period. This replaced the provision of former section 76 of the Civil Practice Act for a delayed appeal within one year upon leave granted by the reviewing court within 14 months. (See comments on paragraph (a) of this rale). The special circumstances that would warrant the granting of leave to file an appeal after the time has expired, such as illness of counsel, unpredictable delay in the mails, etc., in almost all cases will require no more than an additional 30 days, which this rale provides. Under the previous practice no one could be certain that any judgment was final for 14 months, even if no notice of áppeal had been filed. This delay in tire finality of all judgments was more harmful than the rarely justifiable alleviation of hardship by allowing a 12-month instead of a 30-day safety valve.
It is also to be noted that by the language of paragraph (c), amendment of the notice of appeal to include a part of the judgment not originally specified is governed by paragraph (e).” S.H.A., ch. 110A, par. 303 (1974 pocket port).

It is obvious (and conceded) that the plaintiff challenges only and intended to appeal only from so much of the order entered on July 14, 1972 (made appealable as of January 8, 1973, by the final judgment order of that date) as struck and dismissed all allegations and prayers of the amended complaint relating to the purported class or representative action. It is equally obvious (and conceded) that her notice of appeal, filed on February 2, 1973, specified the wrong date by some 2V2 months. It is also obvious (and conceded) that her first attempt to amend her notice of appeal (in this court) was not made until July 13, 1973, more than 6 months after the order here challenged became final and appealable.

The plaintiff’s answer to the motion to dismiss her appeal is, in brief, that said Rule 303(c) (4) provides that, even after 30 days, the notice of appeal may, on motion, be amended in the reviewing court if the record on appeal has been filed, and that such “amendments relate back to the time of the filing of the notice of appeal.” The flaw in this contention is that the rule goes on to say that:

“An amendment specifying a part of the judgment not specified in the original notice of appeal may not be made later than 30 days after the entry of the judgment, * *

Concerning this, the committee’s comment (above quoted) says that:

“The last sentence of subparagraph (4) reduced from 60 days to 30 days the time within which an appeal may be taken by amendment of the notice of appeal, from a part of the judgment not specified in the original notice of appeal”.

There is, in addition to the original 30 days, a “safety-valve” of 30 days as provided in (e) above quoted; but since the first move to amend the notice of appeal was not even attempted until more than six months had passed since the order of- July 14, 1972, first became final and appealable on January 8, 1973, this 30 plus 30 “safety-valve” is not available to the plaintiff.

Hence, the plaintiff’s notice of appeal missed the mark intended by over 2 months and cannot now be amended.' In our view, this disposes of the matter and we must and do dismiss her appeal.

Such a result is in line with Renfield Importers, Ltd. v. Modern Liquors, Inc. (1973), 55 Ill.2d 546, 548, 304 N.E.2d 626 (where the Supreme Court affirmed this court’s dismissal of an appeal because a record on appeal was filed late); Glenview State Bank v. Joseph (1973), 14 Ill.App.3d 403, 302 N.E.2d 733 (where this court dismissed an appeal because the notice of appeal specified the wrong date by some two weeks and was filed late); and Gregory v. Williams (1973), 14 Ill.App.3d 905, 908, 303 N.E.2d 621 (where this court dismissed an appeal because the notice of appeal was not reflected in the abstract).

For cases where the judgment was affirmed because the notice of appeal. did not specify the judgment or part of the judgment challenged by the appellant’s brief, see Place v. Improvement Federal Savings & Loan Ass’n (1962), 24 Ill.2d 245, 247, 181 N.E.2d 94; Grossi Brothers, Inc. v. Schmidt (1963), 44 Ill.App.2d 228, 230-231, 194 N.E.2d 557; Scheffler v. Ringhofer (1966), 67 Ill.App.2d 222, 225, 214 N.E.2d 575; and City of Chicago v. Baran (1972), 6 Ill.App.3d 29, 32, 284 N.E.2d 320.

After lengthy deliberation, we conclude that we have no alternative but to dismiss the within appeal for want of jurisdiction.

Appeal dismissed.

EGAN, P. J., and GOLDBERG, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dorothy Davis (Impleaded), Defendant-Appellant.
    (No. 59711;
    First District (3rd Division)
    December 5, 1974.

      James J. Doherty, Public Defender, of Chicago (Suzanne M. Xinos, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Frank J. Parkerson, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Defendant, Dorothy Davis, was charged by indictment with three counts of murder and two counts of armed robbery. On July 13, 1973, the three counts of murder were nolle prossed and the defendant entered a negotiated plea of guilty to the two counts of armed robbery. She was sentenced to concurrent terms of 10 to 20 years on each armed robbery count. Defendant now appeals, contending that the trial court, prior to the acceptance of her plea of guilty, failed to properly admonish her, pursuant to Supreme Court Buie 402, of the following: (1) The nature of the charge; (2) the minimum and maximum possible sentence; (3) her right to plead not guilty and to persist in that plea; and (4) that her guilty plea constituted a waiver of the right to a trial of any .type.

On July 13, 1973, when the case was called defendant’s counsel in her presence informed the trial judge that there had been several pretrial conferences, the results of which had been conveyed to defendant. Her counsel stated that pursuant to the plea negotiations defendant wished to withdraw her previous plea of not guilty and to enter a plea of guilty to two counts of armed robbery. The trial judge informed defendant that she was charged with two counts of armed robbery and that by pleading guilty she waived her constitutional right to have a jury of 12 people determine her guilt or innocence and her right to have the court, sitting without a jury, determine her guilt or innocence. Defendant responded that she understood, and the trial judge admonished her that by entering a plea of guilty she also waived her constitutional right to have witnesses testify under oath against her, subject to cross-examination. Defendant replied that she understood.

Upon inquiry by the trial judge, defendant further stated that she had not been threatened, abused or forced in any way to enter a plea of guilty. The judge then specifically informed her that at the pretrial com ference the State had agreed to nolle prosse the three murder counts and upon a plea of guilty to recommended concurrent sentences of 10 to 20 years on each count of armed robbery. The judge stated that upon plea of guilty he would impose that sentence. The evidence which would, be presented by the State’s witnesses was then read into the record and defendant’s counsel stipulated that the witnesses would so testify: if called. Defendant’s plea of guilty was then accepted by the trial judge and defendant was sentenced to concurrent terms of 10 to 20 years on each count of armed robbery.

Defendant’s contentions upon appeal relate to Supreme Court Rule 402(a) (111. Rev. Stat. 1973, ch. 110A, par. 402(a)), which provides:

“Pleas of Guilty
In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences;
(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and
(4) that if he pleads guilty there wiU not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.”

Defendant initiaHy argues that the trial judge failed to inform her of and to determine that she understood the nature of the charge. The IHinois Supreme Court has recently held that the trial judge’s reference to the offense by name accompanied by an accused’s acquiescence to the recital of the anticipated prosecution evidence is sufficient to satisfy the requirement of Rule 402(a)(1). (People v. Krantz (1974), 58 Ill.2d 187, 193, — N.E.2d —.) In the instant case the trial judge on two separate occasions informed defendant that she was charged with two counts of armed robbery. Moreover, neither the defendant nor her counsel demurred to the prosecutor’s rendition of the factual basis for the charges. This was sufficient to properly admonish defendant as to the nature of the charges.

Defendant next argues that the trial judge erred in failing to inform her of the possible minimum and maximum sentence prescribed by law for armed robbery. The trial judge did not so inform defendant. While Rule 402(a)(2) states that the trial court shall inform a defendant of the possible minimum and maximum sentence prescribed by law, we are cognizant of the fact that the Illinois Supreme Court has recently established a less stringent approach to the implementation of this particular requirement. In People v. Krantz, supra, the court stated that there will have been “adequate substantial compliance’ ” with the minimum and maximum sentence admonishment requirement if prior to the acceptance of an accused’s guilty plea he is advised by the trial court of the sentence that might at that time be imposed if his plea is accepted. This is precisely what occurred in the instant case. The trial judge informed defendant of the State’s sentence recommendation if a plea of guilty were accepted, and that this recommendation would be followed by the court. The sentence imposed was in accord with the recommendation. In accordance with Krantz, we hold that the trial court did not commit reversible error in failing to advise defendant of the possible minimum and maximum sentence prescribed by law.

Defendant’s third argument is that the trial judge did not inform her that she had the right to plead not guilty and to persist in that plea. As she had already entered a plea of not guilty prior to her case being called on July 13, 1973, the only question which arises is whether the trial judge failed to advise her that she had the right to persist in that plea of not guilty. The judge informed defendant of the nature of the charges against her; that she had the right to a trial by jury, or alternatively, to a bench trial; that she had the right to be confronted by the witnesses against her and to have them testify in open court under oath, subject to cross-examination; and that by pleading guilty she would waive these rights. Defendant responded affirmatively when asked if she understood that these would be the consequences of her guilty plea, and she further stated that no force or duress was used to obtain her plea of guilty.

The remarks and advice of the trial judge must be read in a praqtical and realistic manner, and if an ordinary person in the circumstances of the accused would understand them as conveying the information required by Rule 402, the essentials of the rule have been complied with. (People v. Caldwell (1973), 55 Ill.2d 152, 304 N.E.2d 292.) On the basis of the admonitions of the trial judge and the defendant’s responses, the. judge’s remarks were sufficient to convey to defendant that she had the right to persist in her plea of not guilty.

Defendant’s final argument is that the trial judge did not inform her that by entering a plea of guilty she would waive the right to a trial of any type. An examination of the record demonstrates that this contention is without merit. The basic purpose of Supreme Court Rule 402 is to insure that an accused has on record made an intelligent and understanding guilty plea through substantial compliance with the rule, but the rule does not require a trial judge to recite a number of specifically prescribed formal phrases. (People v. Anderson (1973), 10 Ill.App.3d 558, 294 N.E.2d 763.) Here, the trial judge expressly advised defendant that if she entered a plea of guilty she would waive her constitutional right to have a jury of 12 people determine her guilt or innocence, or in the alternative, to have the court make that determination without a jury. The rule requires substantial compliance, not such literal compliance as to require that the trial judge parrot back the exact language employed. The statement of the trial judge was sufficient to inform the defendant that a guilty plea would result in her waiving a trial of any type.

For the foregoing reasons the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

McNAMARA, P. J., and McGLOON, J., concur.


author: Mr. JUSTICE BURMAN

text:
      In re Estate of Abraham M. Saperstein, Deceased.—(Sylvia Saperstein et al., Respondents-Appellants, v. Martin L. Silverman et al., Petitioners-Appellees.)
    (No. 59064;
    First District (4th Division)
    November 27, 1974.
    Mark S. Lieberman and Jack B. Schmetterer, both of Gottlieb and Schwartz, of Chicago, for appellants.
    Ira D. Schultz, of Chicago (Sidney Z. Karasik and Gary E. Dienstag, of counsel), for appellees.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

This appeal arises from a petition filed in the Probate Division of the Circuit Court asking that court to allow a fair and reasonable sum as fees for services rendered by Allan R. Bloch as attorney for the estate of Abraham M. Saperstein, deceased. Allan R. Bloch died before the administration of the estate was completed and the petition for fees was therefore filed by the executor of Bloch’s estate and by attorneys, Martin L. Silverman and Beryl A. Birndorf, former law partners of Bloch. The respondents herein whose interests comprise 88% of the estate of Abraham Saperstein, objected to the petition for fees. After a lengthy evidentiary hearing, the trial court determined $140,000 to be a fair and reasonable fee and awarded petitioner that amount. The respondents bring this appeal contending solely that the amount awarded by the trial court, in addition to other amounts totaling $123,000 previously received by attorney Bloch, is unreasonable and excessive.

During an extensive hearing on the contested petition for fees in the probate division, much evidence was adduced relating to the amount and nature of the services performed by Allan R. Bloch in regard to the administration of the Superstein estate, and whether those services supported the amount of fees awarded. Our determination necessitates a review of that evidence.

Abraham M. Saperstein (Saperstein) died testate on March 15, 1966. Named as co-executors in his will were Allan R. Bloch (Bloch) and the Continental Illinois National Bank and Trust Company of Chicago (Continental or “the bank”). The executors engaged Bloch’s law firm, Bloch, Birndorf, and Silverman to represent them in the administration of the estate.

Among the assets of Superstein was the world renowned “Harlem Globetrotters” exhibition basketball team. It was originally organized in Chicago by Superstein in 1926 as tire “Savoy Big Five.” It was renamed the Harlem Globetrotters in 1927, and was owned and operated by Saperstein during his life as a sole proprietorship. When Superstein died, the co-executors Bloch and Continental had the obligation of managing his affairs, including operation of the Globetrotters. As will be discussed further below, they initially incorporated the enterprise on April 4, 1966, and eventually arranged for its sale in June, 1967.

Marie Linehan was Saperstein’s personal secretary for more than 20 years and handled most of the operational work for the team. She testified on behalf of petitioners. She stated that at the time of Saperstein’s death, the Globetrotters, who had traveled to 87 countries around the globe, were comprised of two teams of eight or nine players apiece, or a total of 19 or 20 professional players. Out of these men, there were four key players or “stars.” Meadowlark Lemon was “key clown, key performer” with one unit, and Fred Neil was second on that unit. He was regarded as a “highly skilled dribbler and basketball player.” On the other unit the two key men were Robert Hall and Hubert Ausbie, both comics with great basketball skill. None of these four stars was under written contract at the time of Saperstein’s death.

Linehan further stated that Allan Bloch had, during Saperstein’s life, continuously acted as attorney for Saperstein and the Globetrotters, and had become thoroughly familiar with the operation of die teams. He had represented Saperstein and the Globetrotters in infringement cases and handled all contractual work with television networks as well as personal legal matters for the individual team members. He traveled with the club on various occasions overseas and in this country. According to her, Bloch immediately upon Saperstein’s death actively took over “responsibility” for the Globetrotters and continued to do so until it was sold. He procured the signatures of the four stars on written contracts. He visited Europe during the summer of 1966 in advance of the club to reassure the European promoters that the Globetrotters operation would continue. Bloch visited the Globetrotters’ office in Chicago several times a week and Linehan called him “virtually every day.”

Under cross-examination she testified that she was thoroughly familiar with the operation of the club and that she could conduct the operational work for the teams, e.g., booking games and making arrangements for special transportation. She considered herself the office manager. Other people who had done bookkeeping, scheduling, publicity and advance work, and coaching, or who acted as equipment manager, business manager, announcer, driver, prop man, and road manager for the Globetrotters organization during Saperstein’s life remained with the teams after his death. Bloch, however, took over Saperstein’s responsibility of making the critical decisions. During his visit to Europe in the summer of 1966, Bloch not only reassured the promoters of a continuing relationship, but he also did some scheduling. Bloch dealt with whatever problems would arise in connection with the teams or their operation. As to Bloch’s signing tire stars to a written contract, she was not aware of any difficulty encountered by him in that endeavor, and all the stars received an increase in salary. They had in previous years signed written contracts which contained reserve clauses.

Anthony J. Morrone, an attorney since 1957, was in charge of the Saperstein estate on behalf of Continental Bank as co-executor. He was a trust officer of Continental and had been employed by the bank for 15 years in the estate administration department, which is responsible for the bank’s probate matters. He testified as a witness for the petitioners. He discussed the assets of the estate with Bloch before they were officially appointed as co-executors and was told by him that the main asset was the Globetrotters. Morrone stated that in his experience he never had occasion to operate a sole proprietorship business the nature and value of the Globetrotters and that neither he nor anyone else in the bank had any experience in the handling of a similar estate. It was, in his opinion, a highly unique and unusual estate presenting peculiar problems.

A provision in the will allowed for incorporation of the Globetrotters in the discretion of the executors, and Bloch and Morrone decided that this should be done to limit potential liability and to gain tax advantages for the estate. Accordingly, Abe Saperstein Enterprises, Inc., was formed on April 4, 1966, and the proprietorship assets were transferred to the corporation in exchange for all of its stock. The board of directors of the corporation was composed of seven people: Block, Silverman (one of Bloch’s law partners), Morrone, Charles Lenz (also from Continental), Marie Linehan and William Margolis — long time employees of Saperstein — and the decedent’s widow. The latter was made chairman of the board, but Bloch was chief operating officer. Legal services in creating the corporation, as well as all other legal work required in connection with the operation of the estate during the first year, were rendered by Bloch, Birndorf and Silverman. Morrone contacted them “very frequently” and Bloch “almost every day.” Bloch secured written contracts for the key players.

Since Saperstein’s death had come at an inopportune time in terms of cash flow and the estate was cash poor when his will was first admitted to probate, Continental borrowed $50,000 from its own commercial department on May 10, 1966, in order to get the estate started. The cash requirements of the estate tax to be paid were such that Bloch and Morrone decided that the teams would have to be sold. This was one reason why Bloch felt it important to sign the key players to written contracts, because without such contracts it would be difficult to sell the teams. The first offer of purchase came from Metromedia about 6 months after the death of Saperstein. Bloch conducted the negotiations at the outset and received an initial offer of $3 million.

The co-executors filed a petition in the probate division of the circuit court on May 29, 1967, asking that a contract between them and Metro-media for the sale of the Globetrotters at that amount be approved, or, in the event that prior to the entry of any final order authorizing sale of the Globetrotters, other offers or contracts were presented to the court for the purchase thereof, that the court approve the offer or contract which would be in the best interests of the estate. Subsequently other offers were made. A group headed by Potter Palmer made a higher cash bid, and Bloch and Morrone conducted negotiations with that group. Another offer was received from a group headed by Jack Brick-house. Lin Broadcasting also made an offer consisting partly of cash and partly of convertible debentures and stock in the new subsidiary which would be organized to run the teams. The Potter Palmer cash bid of $3,710,000 was finally approved in open court on June 8, 1967, by Judge Dunne. Since the Saperstein family wished to retain ownership of the teams they had favored the Lin offer, and engaged independent counsel, Gottlieb and Schwartz, to represent their interests at the hearing, but the court found the Potter Palmer bid to be “the highest and best offer received by the Co-executors”

The federal estate tax return filed by the co-executors for the Saperstein estate placed the value of the Globetrotters at $2 million at date of death, and that figure was ultimately accepted by the government. Morrone felt an increase in value during the 15 months between Saperstein’s death and the sale of the teams was due to the fact that the co-executors demonstrated, by using good business procedures and cutting costs, that the enterprise could be operated at a profit. The absence of key players’ contracts at Saperstein’s death also affected the value. Dining negotiations with the Potter-Palmer group, a member of that group, George Gillette, had asked Morrone and Bloch if there were contracts with the key players and they assured him that there were.

Certain fees totaling $123,000 were paid to the firm of Bloch, Birndorf, and Silverman from Abe Saperstein Enterprises, Inc., pursuant to corporate resolution during the period of February 28, 1967, to October 19, 1967. These amounts were as follows:

February 28, 1967..............................$27,000

April 10, 1967..................................$ 1,000

May 8, 1967..’.................................$ 1,000

July 7, 1967....................................$ 2,000

August 7, 1967.................................$ 1,000

September 11, 1967.............................$ 1,000

October 19, 1967...............................$90,000

Another payment to Bloch, Birndorf, and Silverman from the assets of the estate in the amount of $10,000 had been made on November 4, 1966. A credit was taken on the corporate income tax return for the $123,000 paid out to Bloch, Birndorf, and Silverman.

When preparing the federal estate tax return, Morrone asked Bloch what his fee would be and Bloch said $140,000. When Morrone filed the federal estate tax return he therefore deducted a figure of $140,000 for “estimated” attorney’s fees to be paid to Bloch’s finn as an expense of administration. He said he knew at that time that $123,000 had already been paid to Bloch by the corporation, pursuant to corporate resolution, and that the $140,000 was in addition to that amount, to be charged to the estate. He further stated that he had about 300 estates under his jurisdiction pending in court at the time. Almost all these estates were valued at over $60,000 and thus required the filing of a federal estate tax return. Based on his experience he was of the opinion that under the unique circumstances, the total amount of fees of $263,000 was fair and reasonable.

Under cross-examination Morrone testified that a $35,000 fee paid to the law firm of Gottlieb and Schwartz, for services it performed for the estate in regard to tax matters at the request of the Saperstein family, was approved by corporate resolution on September 29, 1967. The $90,000 fee paid out to the firm of Bloch, Birndorf, and Silverman, on October 19, 1967, and authorized in the same resolution was for services rendered by Bloch as “chief operating officer of the corporation.” Bloch was on 24-hour call by the corporation, and “whenever [it] had a question to ask, they [sic] would call him, and he performed services above and beyond the duties that he had as attorney for the estate and as co-executor, and he billed the corporation for those services.” Morrone voted for the fees as a director of the corporation because he felt they were reasonable in light of the services performed by Bloch — “he spent considerable time, * * * went to Paris, and # # he was completely devoted to seeing that this was a success * *

The $27,000 payment to Bloch, Birndorf, and Silverman, authorized by the corporation on February 28, 1967, was for a myriad of duties performed by Bloch for the corporation up to that time — e.g., drawing contracts, scheduling, conferring about tax problems. The $1000 payments were monthly retainers. Morrone did not know what transpired during negotiations between Bloch and the star players regarding the written contracts.

The bank’s own co-executor fee of $90,000 was higher than normal because the assets of the estate were unique requiring additional services by it. In addition, Morrone reiterated that the total amount of fees paid out were reasonable taking into consideration the complexities of the estate, the size, the uniqueness of a sole proprietorship unfranchised basketball team with players not under contract and the problems in finding a buyer for a team which “only had a name and a bunch of players.”

On re-direct examination it was established that since the $140,000 deduction for attorney’s fees on the federal estate tax return was disallowed by the government — the usual procedure where fees have not yet been paid or determined — a claim for tax refund was later filed on behalf of the Saperstein heirs. This refund, filed by Gottlieb and Schwartz, re-estimated deductible attorney’s fees at $180,000 rather than the previous $140,000. Morrone testified on re-cross, however, that it is usual and normal to file a claim for refund setting forth the maximum amount allowable under any conceivable set of circumstances.

Charles W. Lenz, a commercial banking officer for Continental who had been employed by it for 21 years, also testified for the petitioners. He was employed as a financial analyst in Continental’s Trust Department at the time he was involved with the Saperstein estate and handled about 150 or 200 closely held corporations a year. During his 12-year experience in that position with almost every type of business imaginable, he had never encountered a business like the Globetrotters, — a sole proprietorship non-league, non-franchised sports activity. He detailed at length various problems which arose as a result of the Globetrotters being outside of an established league or franchise, including scheduling, location of game sites, publicity, and obtaining players without the benefit of a “draft” system.

Soon after Saperstein’s death, he was contacted by Morrone and he estimated that “if we just closed the doors [and liquidated the business], that we could possibly get something in the area of $200,000 in cash” for the equipment and the like. The key to a successful sale, he said, would be (1) incorporation of the entity, (2) the signing of certain key players, and (3) the successful completion of the American and European tours to show that the operation was profitable. Upon the death of a strong sole proprietor an organization could completely collapse. They had to show potential investors that the organization was “alive, well, and profitable.” That was why the insistence on a corporation and why Meadowlark Lemon was signed by Bloch to a long-term contract. Allan Bloch ran and managed the operation of the Globetrotters until it was sold. Lenz did not consider himself qualified to run the teams, and he felt no-one else in the Globetrotters’ organization could do so. A strong individual who knew the whole operation was required, and Bloch was the man. He was of the opinion that signing of the stars by Bloch substantially increased the value of the Globetrotters.

For the full fiscal year that Bloch ran the Globetrotters with the bank, the net income before taxes was in excess of $400,000. The net profits before taxes for the 3 years preceding Saperstein’s death were $57,000, $40,000, and $84,000. Lenz participated in the negotiations regarding the sale of the Globetrotters. A balance sheet covering the period of October 1,1966, to April 30,1967, and showing a net profit before taxes of $666,884 and after taxes of $382,061, was made available to prospective purchasers.

Under cross-examination Lenz said he began analyzing the values of businesses in 1958 and he had previously been called upon to analyze the value of about two or three sole proprietorships a year. He stated that a sole proprietorship is unique because it ceases as an entity at the date of death, whereas a corporation may have perpetual life. Tire amount of good will built up by Saperstein would continue only to the extent that the Globetrotters as an entity could be continued as a profitable enterprise. He had no background to determine whether the executors could operate profitably. Rather than liquidate, the executors took a risk that the Globetrotters could continue as a viable entity upon incorporation under Bloch’s management. In the tax valuation report prepared by him in 1967 for estate and inheritance tax purposes, the fair value of the business as of March 15, 1966, was placed at $2 million, which reflected the figures of the three previous operational years. This was his opinion of the Globetrotters’ value at the date of Saperstein’s death based on his observation of the teams’ money-making ability subsequent to Saperstein’s death. He described in technical detail how he arrived at the $2 million figure. He had originally started with a valuation of between $200,000 and $500,000 but revised it upwards as the profit performance developed. Corporate earnings after tax for the period April 4, 1966, to April 30, 1967, were $322,000 or more than nine times the average annual earnings (assuming after corporate taxes) of $38,000 for 1963, 1964 and 1965.

The sale took place approximately 15 months after the date of death, when the organization was incorporated and the business was highly profitable. The difference between the date of death figure of $2 million and the sale price of $3,710,000 was due to the entity’s profitability. The earnings were increased almost 10 times with only a 10% increase in gross receipts through a tightening up of the whole organization, including a sharp reduction in operating expenses. Lenz agreed that Saperstein’s death produced tremendous publicity throughout the world, and that in certain situations there was free publicity because of that fact.

The respondents called Martin L. Silverman as an adverse witness pursuant to section 60 of the Illinois Civil Practice Act. He was admitted to the Rlinois bar in 1951 and was a member of the firm of Bloch, Birndorf, and Silverman. He testified that the firm maintained some time records in connection with the representation of the Saperstein estate, but they did not accurately reflect the time expended. He did not have any of the time records in court because he was not requested to bring them. Silverman further stated that Bloch did not ordinarily use time sheets because of the nature of the work he was frequently involved in.

Charles D. Stein testified next for the respondents. He had practiced law since 1947 and was a partner in the firm of Gottlieb and Schwartz until 1969, and afterwards was “of counsel” for that firm. He stated that he had a conversation with Allan Bloch regarding fees in connection with the representation of this estate in the latter part of September 1967. Bloch told him that he thought a fair fee for his services would be $140,000. Bloch asked what Gottlieb and Schwartz would ask for a fee, and Stein told him $35,000. Bloch then suggested that his $140,000 fee be allocated between the corporation and the estate on the basis of $90,000 to the corporation and $50,000 to the estate since the services were overlapping. Bloch told him, too, that he was also currently charging $1,000 a month for general corporate services which included drafting contracts, conferring with the office, and general corporate work.

Under cross-examination Stein said he never spoke to Birndorf or Silver-man about fees before Allan Bloch died on January 29, 1969, or before the controversy regarding attorney’s fees had developed.

After deliberation, the court found that Bloch, Birndorf, and Silverman were entitled to a $140,000 fee as attorneys for the Saperstein estate, and that since $10,000 had already been paid from the estate, that $130,000 was still due and owing the firm. The court expressed orally the basis for its finding to be the $140,000 amount listed in the federal estate tax return as estimated attorney’s fees; the claim for refund filed by Gottlieb and Schwartz stating that the estate claimed a deduction of $140,000 for attorney’s fees, but that the actual amount of fees paid or to be paid should be $180,000; the testimony of bank officers who have handled hundreds of estates that this was a unique and unusual estate and that the $140,000 fee was fair and reasonable; and the testimony and exhibits disclosing that the value of the Globetrotters was increased from $2 million to $3,710,000 through the efforts of attorney Bloch.

As noted in respondents’ reply brief, there is little, if any disagreement between the parties as to the substantive content of the applicable law. Compensation for attorneys in estate matters is governed by section 337 of the Probate Act (111. Rev. Stat. 1971, ch. 3, par. 337), which ordains:

“The attorney for an executor, administrator, administrator to collect, guardian, or conservator shall be allowed reasonable compensation for his services.”

Both parties cite In re Estate of James, 10 Ill.App.2d 232, 134 N.E.2d 638, for the proposition that a determination of whether such a fee is “reasonable” must be based on the facts and circumstances of each individual case and no hard and fast rule can be or has been laid down. “There are many cases in our Supreme and Appellate Courts determining the reasonableness of fees, but each case had its own peculiar facts and circumstances, and what would be reasonable in one could be unreasonable in another.” (10 Ill.App.2d 232, 241, 134 N.E.2d 638, 642.) Certain factors to be considered, however, have been set out by the First District Appellate Court opinion in In re Estate of Jaysas, 33 Ill.App.2d 287, 179 N.E.2d 411, and are pointed to by the parties. These include:

* # the size of the estate, the work done and the skill with which it was performed, the time required, and the advantages gained or sought by the services or litigation. Good faith, diligence and reasonable prudence should be included, so as to prevent, on the one hand, excessive charges, and, on the other hand, inadequate allowances." 33 Ill.App.2d 287, 292, 179 N.E.2d 411, 413.

Finally, it cannot be questioned as a general proposition that, although a reviewing court has the power to modify the amount of a fee awarded, the award is a matter peculiarly within the province of the trial court and only where there is a “plain case of wrongful exercise of judgment” (In re McCalmont, 16 Ill.App.2d 246, 256, 148 N.E.2d 23, 28), or where the determination of the trial court is “manifestly or palpably erroneous” (In re Estate of James, 10 Ill.App.2d 232, 242, 134 N.E.2d 638, 643) or a “clear abuse of * * * discretion” (Hofing v. Willis, 83 Ill.App.2d 384, 389, 227 N.E.2d 797, 799) will a reviewing court alter its finding.

The sharp difference of opinion between the parties lies in their disparate evaluation and emphasis of certain facts in the record, and in their conflicting attitude regarding whether the circuit court judge did overstep the bounds of his discretion. After a careful scrutiny of the record before us, we find sufficient facts to support the trial court’s award, and we cannot say that it amounts to a clear abuse of discretion.

An unraveling of the evidence discloses that Allan Bloch did unquestionably perform substantial non-legal and legal services for the estate. At Saperstein’s death the Harlem Globetrotters operation, run by Saperstein as a sole proprietorship, was in a difficult position. Bloch, who had worked with Saperstein during his life on various problems related to the Globetrotters operation, stepped in and, without objection from any source — indeed with everyone’s approval — took on the immense responsibility of insuring the teams’ continued vitality. Morrone testified that neither he nor anyone at Continental — the institutional co-executor on whose behalf Morrone was involved with the estate — had any experience in the operation of such an enterprise, and that it presented an unusual and unique problem. Although the same operational staff continued on with the Globetrotters, Bloch was saddled with the responsibility of making the critical decisions. At Saperstein’s death the key players were not under contract, there were insufficient funds for operating expenses, and negotiations with promoters for the teams’ planned European tour were incomplete. According to Lenz, Continental’s financial analyst, if the teams were to cease operation at that point, the tangible assets could have been sold for about $200,000.

In considering the actual “work done” by Bloch as one criteria for determining a reasonable fee, respondents emphasize what was not done by him. They point to testimony that indicates that co-executor Continental did the inventory, accounts, and tax returns, and that no legal services were required of Bloch in connection with the loan made from Continental to the Globetrotters to get the estate started. They also stress that the absence of any time records deprived the court of the only objective factor available in calculating a reasonable fee. Testimony establishes, however, that Bloch was considered chief operating officer of Abe Saperstein Enterprises, Inc., the corporation formed to run the Globetrotters. In taking over responsibility for the teams, he visited the Globetrotters’ office “several times a week,” and was called by Marie Linehan," who handled much of the operational work, “virtually every day” until the teams were sold. Bloch’s law firm rendered legal services in setting up the corporation and performed “all [other] legal work in connection with the operation of the estate,” including the corporation, during the first year. Morrone, on behalf of co-executor Continental contacted the firm “very frequently” and, at the beginning, Bloch “almost every day.” Bloch also went to Europe in 1966 to reassure the European promoters of a continued relationship and also did some scheduling there. He procured the signatures of the key players on written contracts, and, despite a conflict as to time and effort that went into that endeavor, it was deemed crucial from the standpoint of the teams’ security and saleability. Bloch was further involved in negotiations with various groups regarding tire sale of the teams, which was finally arranged in June 1967.

Both parties also discuss the factor of the advantages gained by the services rendered by Bloch. In this regard there is no dispute that the net worth of the teams in terms of after tax income was increased nearly tenfold in the first year after Saperstein’s death over what it had averaged in the 3 years previous to his death. Nor is there any dispute that the date of death valuation of the Globetrotters for estate tax purposes, accepted by the government, was $2 million and that the enterprise was sold a little over a year later for $3,710,000. The parties differ, however, in analyzing the significance of these facts.

The respondents emphasize that while earnings did increase almost 10 times, total receipts increased only 10%. They thus play down the increased income of the Globetrotters’ operation and attribute it to a “sharp reduction in operating expenses,” arguing that this was made possible largely because of the tremendous amount of publicity generated free of charge by the death of Saperstein — a popular and well-liked individual; The difference between the date of death value of $2 million and the sale price of $3,710,000 is not seen as attributable to Bloch’s efforts, since it is claimed that the bidders were unmoved by the profit picture and that the bidding generated its own enthusiasm. They point out that the first bid received was for $3 million. Moreover, the $2 million figure is not considered by them an accurate valuation at date of death, because it was chosen for a very limited tax purpose and was consequently somewhat artificial.

The evidence, however, reasonably supports the petitioners’ argument that the Globetrotters' net worth increased substantially, due largely to Bloch’s efforts. Saperstein’s death occurred in March, 1966, and the beginning of the profitable United States tour, as conducted by the corporation, did not commence until the following October — a sufficient lapse of time to dissipate greatly publicity surrounding Saperstein’s death. Lenz saw the substantial increase in earnings as being “the direct result of management, over-all tightening up of the operation.” The date-of-death value of $2 million was accepted by the government as accurate, and the much higher sale price was considered by both Morrone and Lenz to be a result of the profit performance demonstrated by the Globetrotters after Saperstein’s death and the signing of the stars to written contracts. Lenz said a profit and loss statement as of April 30, 1987, was made available to prospective purchasers on their request, and discussions regarding player contracts arose during sale negotiations. It must finally be noted that respondents’ attorney himself admitted, in his opening remarks at the trial, that whatever work was done by Bloch was done “skillfully.”

Respondents also claim an alleged lack of good faith on the part of petitioners should bear on the fee award. This is grounded primarily on the observation that the petition seeking allowance for fees did not reveal that $123,000 had already been paid to Bloch’s firm by the corporation, and that another $10,000 had been received from the estate “on account.” We do not believe that such an omission was necessarily indicative of lack of good faith — especially since petitioners brought out these facts themselves through testimony at the hearing. The other bases for the claimed lack of good faith relate to certain allegations in the petition not considered by respondents to have been borne out by the record and thus deemed misleading. The evaluation of these statements as misleading is colored by the respondents’ interpretation of the evidence and we do not consider the statements crucial to a determination of the award.

The respondents finally argue that even “assuming the rendition [by Bloch] of skillful services leading to advantageous results,” which they “recognize to a limited degree,” the figure of $140,000 was chosen arbitrarily by the court. It was determined, they say, because that amount appeared on the estate tax return and the tax refund claim, and respondents detail at length why the figure on those documents is not probative of a fair fee — viz., it might properly have included the $90,000 amount paid out to Bloch’s firm pursuant to corporate resolution and deducted on the corporations income tax return, and it was an estimated amount in any event, sufficiently large to include all possible contingencies. This argument is premised on the testimony of Stein, associated with the law firm of Gottlieb and Schwartz representing respondents, that Bloch himself intended the $140,000 amount to include the $90,000 paid out to his firm pursuant to corporate resolution and that therefore only $50,000 was due from the estate. This testimony is sufficiently rebutted by the record to warrant its rejection by the court. Morrone testified that tire $140,000 was intended to be in addition to that paid out by the corporation. Without detailing the propriety vel non of taking the same $90,000 deduction twice — on both the corporation income tax return and on the estate tax return — which the parties discuss at some length, we merely note that the record reflects disagreement as to whether it would have been proper to do so under the facts here. In regard to respondents’ assertion that here is “no rational relationship in the record between skillful performance and advantageous results, on the one hand, and the sum of $140,000 on the other,” and that the estate tax return and the tax refund claim could not provide tire nexus, we stress that the trial court judge also heard the testimony of Morrone that $140,000 was a “fair and reasonable” fee considering all factors involved in the estate. No other witness testified to the contrary. The judge expressed that this opinion was a basis for his determination of the award.

In sum then, based on the record before us and the rule of law that the award of attorney’s fees is a matter peculiarly within the discretion of the trial court, we are not prepared to say that the award here, although higher than the many standards proposed by the respondents, was a clear abuse of discretion or manifestly or palpably erroneous. We reiterate that this was an unusual and unique estate, requiring extraordinary and broad-ranging legal and non-legal services by Bloch. We note in closing that Bloch did not request nor did he receive a co-executor’s fee.

For the reasons stated the judgment of the circuit court is affirmed.

Affirmed.

ADESKO, P. J., and DIERINGER, J., concur.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    Lillie Lacey, Plaintiff-Appellee, v. Roy Lacey, Defendant-Appellant.
    (Nos. 60202, 60380 cons.;
    First District (3rd Division)
    December 5, 1974.
    Eugene F, Welter and Michael F. Mulcahy, both of Chicago, for appellant.

      Howard Sherman, of Sherman, Schachtman & Stein, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Roy Lacey, appeals from an order of the circuit court of Cook County dismissing his petition to vacate or modify the child-support provisions of a decree of divorce awarded plaintiff, Lillie M. Lacey. Defendant’s petition for relief was brought under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 72), or, in the alternative, under section 18 of the Divorce Act (Ill. Rev. Stat. 1969, ch. 40, par. 19). The pertinent facts are as follows.

In 1972 plaintiff instituted divorce proceedings against defendant. After a trial in which both sides were represented by counsel, the court granted plaintiff a divorce and awarded her custody of the parties’ two minor children. Defendant was ordered to pay plaintiff $340 per month for child support. On the date the decree was signed, June 19, 1973, defense counsel petitioned the court for a new hearing on the issue of child support only. In that petition, counsel stated that at the time of trial he was exhausted and had made erroneous statements concerning defendant’s ability to pay child support. The court denied the post-trial petition and entered the decree. Defendant did not appeal.

Subsequently, plaintiff filed a petition for rule to show cause why defendant should not be held in contempt for failure to comply with the support provisions. (The plaintiff later withdrew her petition to have defendant held in contempt.) In response, on December 21, 1973, defendant filed the aforesaid petition to vacate or modify the child-support portion of the decree. The facts set forth in this petition were identical to those brought before the court in defendant’s post-trial request for a new hearing. Citing the misstatements of counsel and his own limited assets, defendant claimed the support provisions were unjust. Plaintiff moved to dismiss the petition on the ground that defendant alleged no change in circumstances that would entitle him to the relief sought, and that the issues raised had been fully heard and ruled on by the court in the divorce proceeding. The motion to dismiss further recited that defendant had the services of two attorneys at trial and was at all times adequately represented. After hearing arguments by both sides, the trial court found the petition did not state a cause of action under section 72 of the Civil Practice Act or under section 18 of the Divorce Act. Plaintiff’s motion to dismiss was granted.

Upon perfection of the appeal by defendant, plaintiff petitioned the trial court for additional attorney’s fees to defend the appeal. After a hearing, the court ordered defendant to pay plaintiff $750 in additional attorney’s fees. Defendant has also appealed from that order and the separate appeals have been consolidated.

We initially find that defendant’s petition to vacate or modify tire child-support provision of the divorce decree did not state a cause of action for relief under section 72. A section 72 motion cannot be used as a substitute for appeal (Werth Industries, Inc. v. Mid-America Management Co. (1973), 16 Ill.App.3d 688, 306 N.E.2d 510), nor can it be used to relitigate matters already validly adjudicated. (Southmoor Bank & Trust Co. v. Willis (1958), 15 Ill.2d 388, 155 N.E.2d 308; Brunswick v. Mandel (1973), 15 Ill.App.3d 502, 305 N.E.2d 9.) The purpose of a section 72 petition is to bring before the trial court facts not appearing in the record which, if known to the court at the time judgment was entered, would have prevented its entry. (Filosa v. Pecora (1974), 18 Ill.App.3d 123, 309 N.E.2d 356.) In the present case, defendant’s section 72 petition raised issues identical to those originally brought before the trial court in the post-trial motion. All the matters complained of were presented to the trial court and relief on those grounds was denied. Defendant did not appeal from the judgment for divorce or from the post-trial order. Under these circumstances, the matters alleged are not reviewable under a section 72 petition.

Defendant relies on People v. Franks (1970), 126 Ill.App.2d 51, 261 N.E.2d 502, for the proposition that a cause of action for relief under section 72 is stated whenever an inequitable or unconscionable judgment is alleged to have been rendered. However, that reliance is misplaced. In that case, the trial court granted petitioner’s section 72 motion to vacate an Illinois judgment despite the fact that a timely appeal had not been taken. This court affirmed only after finding that the issues raised in the Illinois proceeding had been previously determined by a Kansas court and the Illinois judgment was, therefore, invalid. In so ruling the court concentrated on the full faith and credit requirement of the constitution. The holding in Franks is inapplicable to the present case.

Likewise, the alleged misstatements of defendant’s counsel during the divorce proceedings do not provide a basis for relief under section 72. As the supreme court stated in People v. Mamolella (1969), 42 Ill.2d 69, 72, 245 N.E.2d 485, “[T]he rule is well established that it is not within the purpose of a Section 72 proceeding * * * to have claims considered which could have been presented in the trial court and on direct review * * * The defendant was represented by an attorney of his own choice and his failure, if any, to exercise care and skill in the trial of the case may not be properly advanced as a basis for reversing the original judgment.”

Defendant next contends that the trial court erred in finding that his petition did not state a basis for relief under section 18 of the Divorce Act. That section provides that the court may, on application, make such alterations in the allowance of alimony and child support “as shall appear reasonable and proper.” The cases uniformly hold, however, that before a modification wiH be allowed it must be shown that the circumstances and conditions of the parties have changed materially since the entry of the original decree. (Doran v. Doran (1972), 7 Ill.App.3d 614, 287 N.E.2d 731; Louthan v. Louthan (1970), 130 Ill.App.2d 281, 264 N.E.2d 797.) A court may not arbitrarily modify the provisions for child support, but can do so only after tire moving party has shown a change in circumstances so as to justify modification. Green v. Green (1967), 86 Ill.App.2d 362, 229 N.E.2d 565.

Defendant concedes and the record before us reveals that defendant neither alleged nor attempted to prove that any substantial change in the circumstances of the parties had occurred since the divorce decree was entered. Defendant cites Scalfaro v. Scalfaro (1970), 123 Ill.App.2d 23, 259 N.E.2d 644, for the proposition that section 18 relief does not require a change in circumstances. That is not the holding of the case. In affirming the modification of child-support provisions, this court specificaHy noted that “the trial court determined the financial condition of defendant had sufficiently changed since the entry of the divorce decree to warrant its modification * * The present petition, therefore, did not state a cause of action for relief under section 18. The trial court properly granted plaintiff’s motion to dismiss the petition.

Defendant also contends that the trial court erred in directing him to pay $750 to plaintiff for attorney’s fees to defend the appeal.

In order to justify the allowance of attorney’s fees in a divorce proceeding, the party seeking relief must show financial inability to pay and the ability of the other spouse to do so. (Kaufman v. Kaufman (1974), 22 Ill.App.3d 1045; McLeod v. McLeod (1971), 133 Ill.App.2d 111, 272 N.E.2d 834.) Plaintiff testified that she earned $6000 per year and received at least $150 per month from defendant for child support. There was no testimony as to defendant’s income or ability to pay. Although the facts adduced might support a finding that plaintiff could not pay her own attorney’s fees, there is nothing in the record to indicate that defendant has the financial ability to pay the fees. Under the circumstances, the allowance of attorney’s fees to plaintiff to defend the appeal was error. Also see Horwitz v. Horwitz (1970), 130 Ill.App.2d 424, 264 N.E.2d 723.

Accordingly, the order of the circuit court of Cook County dismissing defendant’s petition to modify or vacate a portion of the divorce decree is affirmed. The order directing defendant to pay plaintiff $750 for attorney’s fees is reversed.

Affirmed in part; reversed in part.

DEMPSEY and MEJDA, JJ., concur.