text:
    DESPINA REGOPOULOS et al., Plaintiffs-Appellees, v. WAUKEGAN PARTNERSHIP et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1 — 90—2640
    Opinion filed December 30, 1992.

      Wildman, Harrold, Allen & Dixon, of Chicago (David J. Fischer, Roderick A. Palmore, and Ellen J. Neely, of counsel), for appellants.
    Barry A. Erlich, of Chicago, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs, Despina Regopoulos, Elaine Regopoulos, Virginia Navilio and Sophia Bravos, brought this action against defendants, Waukegan Partnership and Herbert Saywitz, seeking rescission and monetary damages based on fraud and breach of warranty in connection with the purchase of a 60,000-square-foot commercial building and the accompanying four acres of land located at 1620 North Lewis Avenue, Waukegan, Illinois (Building). Defendants filed a counterclaim seeking the balance due on a promissory note and monetary damages based on fraud and misrepresentation in connection with payment and cancellation of the note. Following a bench trial, the trial court entered judgment in favor of plaintiffs and against defendants in the amount of $133,220 on the complaint, to be set off by judgment on the counterclaim in favor of defendants and against plaintiffs in the amount of $12,000 plus accrued interest. Defendants appeal from the judgment, and plaintiffs cross-appeal.

On appeal, defendants contend that (1) the trial court erred when it precluded them from presenting evidence that Waukegan Square Limited Partnership is not the true purchaser of the Building; (2) the trial court erred in its interpretation of the parties’ purchase agreement; (3) the trial court’s ruling in favor of plaintiffs and against defendants on the breach of warranty claim is contrary to the manifest weight of the evidence; (4) the trial court erred when it ruled that defendants intended to release plaintiffs from their obligations under the promissory note; and (5) the trial court erred when it failed to award prejudgment interest on the $12,000 judgment entered in the counterclaim. On cross-appeal, plaintiffs contend that (1) the trial court’s ruling in favor of defendants and against plaintiffs on the counterclaim is contrary to the manifest weight of the evidence; and (2) the trial court erred in its computation of damages in the breach of warranty claim. We affirm as modified.

On December 31, 1986, plaintiffs entered into a purchase agreement with defendant Waukegan Partnership to purchase the Building for a total purchase price of $1,013,862.71. The purchase agreement contains certain covenants, representations and warranties that provide, inter alia, to the best of defendants’ knowledge, there are no material physical or mechanical defects in the roof or heating, ventilation and air conditioning (HVAC) system of the Building as of the date of purchase. The purchase agreement also provides that Perry Posten, the sole and exclusive broker working in connection with the sale of the Building, is entitled to a brokerage commission of $75,000, one-half ($37,500) to be paid by each party.

Payment of the purchase price of the Building consisted of cash, plaintiffs’ assumption of defendants’ outstanding first mortgage on the Building and a promissory note payable to the order of Waukegan Partnership. The promissory note contains certain penalty provisions providing that if the outstanding principal balance of the note is not paid in full by June 30, 1987, the principal amount of the note is to be increased by $10,000 per month, with a maximum increase of $200,000, and plaintiffs would be obligated to pay an additional interest payment in the amount of $1,500 per month, decreasing by $75 per month until the principal amount of the note is paid.

Plaintiffs sought to pay the principal balance of the note before June 30, 1987, in order to avoid these penalty provisions. Plaintiffs requested a setoff letter from defendants itemizing all credits and debits made to the principal amount of the note. When plaintiffs received the setoff letter, however, defendants’ attorney credited only $25,500 from the outstanding balance of the note for defendants’ share of the brokerage commission owed to Posten, rather than the $37,500 amount designated in the purchase agreement. On July 1, 1987, following a one-day extension of payment, plaintiffs paid defendants the principal amount due on the note, less the $12,000 disputed amount, which was placed into a joint escrow account pending resolution of the dispute at a later date. Shortly thereafter, the note was returned to plaintiffs stamped “CANCEL.”

In July 1987, plaintiffs were informed by a tenant of the Building that there had been substantial problems with the roof and the HVAC system of the Building for several years. After an inspection by roofing and HVAC experts revealed that the roof was in very poor condition and that all nine rooftop HVAC units were in serious disrepair, plaintiffs brought this action in the circuit court. Defendants filed a counterclaim. On the first day of trial, the trial court granted plaintiffs’ motion to substitute Waukegan Square Limited Partnership (WSLP) as the nominal plaintiff. After directing a finding in favor of defendants on the fraud and rescission claims in plaintiffs’ complaint, the trial court ruled that defendants breached an express warranty contained in the purchase agreement, and entered judgment in favor of plaintiffs and against defendants in the amount of $133,220. On the counterclaim, the trial court entered judgment in favor of plaintiffs on the fraud and misrepresentation claim, but ruled that defendants were entitled to the escrowed balance of the promissory note and entered judgment in favor of defendants and against plaintiffs in the amount of $12,000 plus accrued interest, to be set off against the judgment entered in favor of plaintiffs on the breach of warranty claim. It is from these judgments that plaintiffs and defendants appeal.

Defendants first contend that the trial court erred when it precluded them from presenting evidence that WSLP is not the true purchaser of the Building. We disagree. Plaintiffs filed a motion to amend its complaint in order to substitute WSLP as the nominal plaintiff. Defendants objected to plaintiffs’ motion, arguing that plaintiffs were the true purchasers of the Building, not merely nominees or agents of WSLP, and had resold the Building to WSLP for a substantial profit, thus sustaining no damages or having any basis for their claimed legal and equitable relief. The trial court granted plaintiffs’ motion to substitute WSLP as the nominal plaintiff, ruling that defendants had judicially admitted plaintiffs’ status as agents of WSLP.

Defendants made the following averment in their answer to plaintiffs’ complaint and in their counterclaim:

“Plaintiffs at all times relevant to the transactions between the parties were acting as agents for and on behalf of an entity known as [WSLP], Contemporaneously with their signing of the purchase agreement, plaintiffs assigned to [WSLP] their beneficial interest to the subject matter of the purchase agreement.”

Plaintiffs admitted this averment in their reply to defendants’ affirmative defenses and the answer to the counterclaim. It is well established that a fact admitted in a verified pleading is a formal, conclusive judicial admission which is binding on the pleader and which dispenses wholly with proof of that fact. (Winnetka Bank v. Mandas (1990), 202 Ill. App. 3d 373, 396, 559 N.E.2d 961, 975.) It is clear that defendants’ averments here are not the product of mistake, inadvertence or oversight, but rather are affirmative declarations made by experienced counsel. Moreover, the record is devoid of any evidence to support defendants’ contention that plaintiffs are not merely nominal purchasers. We, therefore, conclude that the trial court did not err when it precluded defendants from presenting evidence that WSLP is not the true purchaser of the Building.

Defendants next argue that the trial court erred in its interpretation of the parties’ purchase agreement. The purchase agreement contains the following provisions:

“9. Covenants, Representations and Warranties of Seller.
A. In order to induce Purchaser [plaintiffs] to enter into this Agreement Seller [defendants] covenants, represents and warrants, as the case may be, to Purchaser as follows:
* * *
(12) To the best of Seller’s knowledge, the Buildings [sic] have been constructed in good and workmanlike manner and of good quality materials, are fit for their intended use, and there are no material, physical or mechanical defects in the condition of the Buildings, including, but not limited to, the roofs, exterior walls or structural components of the Buildings and the heating, air conditioning, plumbing, ventilating, elevator, utility, sprinkler and other mechanical and electrical systems, apparatus and appliances located on the Buildings.
* * *
(22) To the best of Seller’s knowledge, there are no facts material to the use and operation of the Project which Seller has not disclosed to Purchaser.
* * *
C. This Agreement shall not be cancelled or merged on the Closing. Each and every warranty of Seller shall be deemed to have been relied upon by Purchaser, notwithstanding any investigation Purchaser may have made with respect thereto, or any information developed by or made available to Purchaser prior to the Closing and consummation of this transaction.”

Defendants first contend that the trial court erred in interpreting the parties’ purchase agreement when it relieved plaintiffs of the burden of proving that their reliance upon the express warranties contained in the purchase agreement is reasonable. We disagree. Recent decisions of this court have dispensed with the reasonable reliance element in breach of warranty actions, requiring only that the purchaser prove that the warrantor gave a warranty as an inducement to make the purchase and that the purchaser actually relied upon the warranty in order to establish a prima facie case for breach of an express warranty. (See Coryell v. Lombard Lincoln-Mercury Merkur, Inc. (1989), 189 Ill. App. 3d 163, 169, 544 N.E.2d 1154, 1158; Wheeler v. Sunbelt Tool Co. (1989), 181 Ill. App. 3d 1088, 1100, 537 N.E.2d 1332, 1340-41; Hrosik v. J. Keim Builders (1976), 37 Ill. App. 3d 352, 354, 345 N.E.2d 514, 515; Vasco Trucking, Inc. v. Parkhill Truck Co. (1972), 6 Ill. App. 3d 572, 575-76, 286 N.E.2d 383, 386; but cf. Michuda v. Sanitary District (1940), 305 Ill. App. 314, 349-50, 27 N.E.2d 582, 598 (requiring purchasers to prove that a reasonable person would also have relied upon the warranty in order to recover in a breach of warranty action).) Furthermore, our review of plaintiffs’ actions here, including their compliance with defendants’ request to avoid the Building and their reliance upon paragraph 9C of the purchase agreement, which was undoubtedly inserted into the purchase agreement to protect plaintiffs from the consequences of not conducting an inspection, indicates that plaintiffs’ actual reliance upon the express warranties is reasonable.

Defendants next contend that the trial court erred in interpreting the parties’ purchase agreement when it failed to properly allocate the burden of proof in plaintiffs’ breach of warranty claim. Defendants argue that the trial court required defendants to prove plaintiffs’ lack of reasonable reliance upon the warranties rather than requiring plaintiffs to affirmatively establish their own reasonable reliance. After reviewing the record in its entirety, we conclude that the trial court did not improperly allocate the burden of proof in this matter.

Defendants next contend that the trial court erred in interpreting the parties’ purchase agreement by requiring defendants to affirmatively discover conditions of which they had no actual knowledge. This contention is without merit.

In its memorandum of opinion, the trial court stated:

“Defendant Saywitz was no doubt familiar with the condition of the building. He managed it for two years, owned it for several years, and was a landlord for several years. To believe his testimony that ‘he had no knowledge of the condition of the roof and heating and air conditioning units,’ would require the Court to reject not only the Plaintiffs’ testimony, but three seemingly impartial witnesses who convincingly testified to the poor condition of the roof and heating and air conditioning units.”

From its ruling, it is plain that the trial court did not, as defendants assert, “interpret the defendants’ warranty as a guaranty that the building’s roof and HVAC units were, in fact, in good condition.” Rather, the memorandum of opinion clearly establishes that the trial court determined that defendants were fully aware that material physical or mechanical defects existed in the roof and HVAC system at the time of the sale of the Building. We, therefore, conclude that the trial court did not err in its interpretation of the parties’ purchase agreement by requiring defendants to affirmatively discover conditions of which they had no actual knowledge.

Defendants next argue that the trial court’s ruling in favor of plaintiffs and against defendants on the breach of warranty claim is contrary to the manifest weight of the evidence. Defendants do not dispute that the purchase agreement contains an express warranty, that this warranty was given in order to induce plaintiffs into purchasing the Building, or that plaintiffs actually relied upon the warranty. Rather, defendants contend that they did not breach the express warranties contained in the purchase agreement because they were unaware of the problems that existed in the roof and HVAC system when they sold the Building to plaintiffs. The record, however, does not support defendants’ contention.

John Sarantakis, the tenant of the Building at the time of the sale to plaintiffs, testified that there were significant problems with the leaking roof and the HVAC system throughout his tenancy in the Building, and that he complained “a lot” about these problems to Saywitz and Tom Ogrodowski, the vice-president in charge of operations for Saywitz’s management company. In addition to Sarantakis, two independent certified experts testified about the deteriorating condition of the roof and HVAC system. William Early, a certified roofing consultant, testified that he inspected the building in September 1987. Early testified that his inspection revealed that the roof was in very poor condition, including corrosion of the metal roof deck, deteriorating asphalt, water-saturated felts, holes and splitting in the roofing membrane, blisters (adhesion voids between layers of the roof, which if broken, cause the membrane to split open and enable moisture to permeate the roofing membrane) and alligatoring (a condition where the roofing asphalt shrinks, causing it to become brittle and eventually resulting in extensive roof leakage). Although Early was unable to date exactly when the deteriorating condition of the roof would have been visible, he stated that the roof would have shown signs of dilapidation, including alligatoring and disintegration of the roof decking, at least three months prior to plaintiffs’ purchase of the building.

Darryl DeSteffen, a certified HVAC consultant, inspected the HVAC system of the Building in October 1987. DeSteffen’s inspection revealed that only one HVAC unit was operative in the heating mode and that all nine rooftop HVAC units were in some state of disrepair. DeSteffen testified that repair parts had been cannibalized from other units, leaving two of the machines virtually gutted, and that the HVAC system had not been competently maintained and serviced within at least one year prior to his inspection. Additionally, DeSteffen’s inspection revealed the presence of carcasses and skeletons of pigeons and other animals inside some of the units, indicating substantial neglect of the HVAC system for a prolonged period of time.

After reviewing the record in its entirety, we find there is sufficient evidence to support the trial court’s determination that material physical or mechanical defects existed in the roof and HVAC system of the Building, notwithstanding any repairs that had previously been made, at the time of sale of the Building, and that defendants were fully aware of these defects when they conveyed the Building to plaintiffs. We, therefore, conclude that the trial court’s ruling in favor of plaintiffs and against defendants on the breach of warranty claim is not contrary to the manifest weight of the evidence.

Defendants next contend that the trial court erred when it ruled that defendants intended to release plaintiffs from their obligations under the promissory note. This contention is also without merit. The record in the present case reveals that defendant Saywitz directed his attorney to cancel the promissory note after plaintiffs had paid the balance due on the note less the disputed amount and deposited the disputed funds into the joint escrow account pending resolution of the dispute. Shortly thereafter, defendants’ attorney returned the promissory note to plaintiffs with the word “CANCEL” stamped on the last page of the note. We agree with the trial court that the only reasonable interpretation of defendants’ action here is that the parties intended for plaintiffs’ payment of the note less the disputed amount and placement of the disputed funds into the joint escrow account to constitute a release and satisfaction of the promissory note. We, therefore, conclude that the trial court did not err when it ruled that defendants intended to release plaintiffs from their obligations under the promissory note.

Defendants next contend that the trial court erred when it failed to award prejudgment interest on the $12,000 judgment entered in the counterclaim. This contention is also without merit. The Illinois Interest Act provides:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.” Ill. Rev. Stat. 1987, ch. 17, par. 6402.

It is well settled that a party cannot recover prejudgment interest unless it is expressly permitted by statute or there is an agreement between the parties. (Congregation of the Passion, Holy Cross Province v. Touche Ross & Co. (1991), 224 Ill. App. 3d 559, 590, 586 N.E.2d 600, 621.) The parties do not dispute that no agreement exists providing for prejudgment interest on the disputed amount. We find that because defendants released plaintiffs from the promissory note, they are not entitled to prejudgment interest pursuant to the note. We also find that because plaintiffs had a good-faith belief that judgment on the disputed amount would be entered in their favor, plaintiffs’ failure to release money from the escrow account was neither vexatious nor unreasonable. We, therefore, conclude that defendants have not established a basis for recovering prejudgment interest under the statute.

On cross-appeal, plaintiffs argue that the trial court’s ruling in favor of defendants and against plaintiffs on the counterclaim is contrary to the manifest weight of the evidence. We disagree.

The purchase agreement provides that Perry Posten, the sole and exclusive broker working in connection with the sale of the Building, is entitled to a $75,000 brokerage commission for his efforts, $37,500 to be paid by each party. Defendants issued a promissory note to Posten to secure payment of the brokerage commission (Posten note). The Posten note contains an “Early Payment Bonus,” which permits the borrower to pay the note in full by June 30, 1987, at a reduced balance of $25,500. In the event that the note is not paid in full by June 30, 1987, the reduced balance increases by $600 per month, with the maximum increase to $37,500, the face amount of the note.

The parties agreed that plaintiffs would assume payment of the Posten note, and that defendants’ share of the commission would be credited from the principal amount owed by plaintiffs on the parties’ promissory note. When defendants’ attorney prepared the setoff letter, she credited the early payment bonus reduced balance of $25,500, rather than the $37,500 face amount of the Posten note, from the outstanding principal amount of the parties’ promissory note. Plaintiffs immediately disputed the amount defendants’ attorney credited from the parties’ note, claiming they were entitled to a credit of the face amount of the note rather than the early payment bonus reduced balance.

We find that defendants’ attorney properly credited $25,500 from the outstanding balance of the parties’ note. Absent an agreement to the contrary, plaintiffs are entitled to a credit equal to the amount of liability they assumed. In the present case, if plaintiffs paid the Posten note in full the day they assumed it from defendants, they were obligated to pay Posten $25,500 pursuant to the early payment bonus. Accordingly, we see no reason why plaintiffs should be entitled to a credit from the outstanding balance of the note greater than $25,500. We, therefore, conclude that defendants properly credited $25,500, rather than $37,500, from the outstanding principal balance of the parties’ promissory note.

Plaintiffs next contend that the trial court erred in its computation of damages in the breach of warranty claim. In its computation of damages, the trial court determined that the reasonable cost of restoring the roof to the condition as warranted was $96,000. The trial court further determined that the cost of repairing the HVAC system to the condition as warranted was $37,220. When computing the cost of restoring the roof to the condition as warranted, the trial court determined that the reasonable cost of repairing the roof was $192,000, discounted by 50% due to the increased life expectancy of the roof. We find there is an adequate basis in the record to support the trial court’s determination of damages for defendants’ breach of warranty of the condition of the roof. When computing damages for defendants’ breach of warranty of the HVAC system, however, the trial court deducted $8,402, the amount plaintiffs had previously expended for service and repair of the HVAC system, from the $45,622 sum it determined was reasonable for repairing the HVAC system to the condition as warranted. Because the cost of plaintiffs’ previous expenditures for service and repair of the HVAC system is irrelevant to the computation of damages here, we find no basis for the trial court’s deduction of $8,402 from its award of damages in the present case. We therefore hold that the trial court should have awarded damages based on defendants’ breach of its express warranties to plaintiffs in the amount of $141,622.

Accordingly, the order and judgment of the circuit court is affirmed, except that the award of damages is modified as stated herein.

Affirmed as modified.

GREIMAN, P.J., and CERDA J., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    DAVID BRUBAKKEN, Plaintiff-Appellant, v. HELEN MORRISON, Defendant-Appellee.—SAVIN CORPORATION, Plaintiff-Appellant, v. HELEN MORRISON, Defendant-Appellee.
    First District (3rd Division)
    No. 1 — 90—1670
    Opinion filed December 30, 1992.
    Rehearing denied February 5, 1993.

      Steven E. Stern, of Chicago, for appellants.
    Hollander & Hollander, of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs, David Brubakken, Ph.D., and the Savin Corporation, brought separate causes of action against defendant Helen Morrison, M.D., to recover upon two promissory notes in which defendant was a co-signer. A default judgment was entered in favor of plaintiff Brubakken and against defendant in the amount of $7,701.78; and a default judgment was entered in favor of plaintiff Savin and against defendant in the amount of $3,592.69. Defendant entered into stipulation agreements with plaintiffs for payment of the judgments. After making payments to plaintiffs totaling at least $7,200, defendant was unable to abide by the stipulation agreements due to the pending birth of a child. Defendant sent plaintiffs a letter seeking to have the stipulation agreements modified. Plaintiffs did not respond to defendant’s request and filed a motion seeking to have defendant held in civil contempt based on her failure to abide by the stipulation agreements. Plaintiffs were represented by the law firm of Carmel, Baker & Marcus, Ltd.

The trial court entered an order denying plaintiffs’ motion for contempt, but ruled that attorney Blair C. Greene from the law firm of Carmel, Baker & Marcus, Ltd., engaged in sanctionable conduct pursuant to amended section 2 — 611 of the Code of Civil Procedure, as amended by Public Act 84 — 1431, effective November 25, 1986 (amended section 2 — 611), when he attempted to collect amounts from defendant in excess of the Brubakken judgment and failed to inform the court of a letter written by defendant to plaintiffs seeking to have the stipulation agreements modified. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611.) Amended section 2 — 611 was repealed and replaced by Supreme Court Rule 137, which became effective August 1, 1989. (134 Ill. 2d R. 137.) Following hearings on defendant’s fee petition, the trial court imposed sanctions against Greene and Carmel, Baker & Marcus, Ltd., jointly and severally, in the amount of $6,686.70.

On appeal, plaintiffs contend that (1) the trial court erred when it imposed sanctions for conduct that amounted to an honest mistake; (2) the trial court erred when it imposed sanctions for activities that occurred prior to the effective date of amended section 2 — 611; (3) the trial court erred when it imposed sanctions for activities that occurred before another trial judge; (4) the trial court erred when it imposed sanctions where defendant’s fee petition lacked sufficient detail upon which to base an award; (5) the trial court erred when it imposed sanctions where no evidence was proffered showing that defendant had actually paid attorney fees for defending against the sanctionable conduct; (6) Carmel, Baker & Marcus, Ltd., was denied due process of law when the trial court modified its previous order sua sponte to make the law firm jointly and severally liable for the conduct of its associate; (7) the trial court erred when it imposed sanctions against Carmel, Baker & Marcus, Ltd., after it discharged Greene from any personal liability arising from his conduct in this matter; and (8) the trial court erred when it ruled that defendant paid $6,782 in partial satisfaction of the Brubakken judgment where the record reveals payments of a lesser amount. We affirm in part, reverse in part and remand.

Plaintiffs first argue that the trial court erred when it imposed sanctions for conduct that amounted to an honest mistake. We disagree. Amended section 2 — 611 provides for the imposition of attorney fees and costs when an attorney files frivolous pleadings, motions or papers, or makes untrue statements to the court. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611; Klairmont v. Elmhurst Radiologists (1990), 200 Ill. App. 3d 638, 644-45, 558 N.E.2d 328, 332.) The purpose of this statute is to prevent abuse of the judicial process by sanctioning a party who makes unsupported assertions of fact or law or brings vexatious litigation predicated upon false statements. (A & A Acoustics, Inc. v. Valinsky (1990), 202 Ill. App. 3d 516, 522, 559 N.E.2d 1180, 1184.) A trial court’s finding of sanctionable conduct will not be disturbed absent an abuse of discretion. Professional Ther apy Services, Inc. v. Signature Corp. (1992), 223 Ill. App. 3d 902, 917, 585 N.E.2d 1291, 1301.

The trial court first sanctioned Greene for attempting to collect amounts from defendant in excess of the Brubakken judgment. On July 15, 1987, Greene filed a motion for a nunc pro tunc order to increase the amount of the judgment entered in favor of Brubakken from $7,701.78 to $11,701.78. This motion was denied. Thereafter, Greene attempted to collect $15,970.10 from defendant for the Brubakken judgment, a sum $8,268.32 in excess of the Brubakken judgment. Greene argues that his attempt to collect an amount in excess of judgment was an honest mistake. Greene claims that he mistakenly merged the Brubakken and Savin judgments when he attempted to collect $15,970.10 for the $7,701.78 Brubakken judgment. After reviewing the record in its entirety, we cannot say that the trial court abused its discretion when it ruled that Greene’s attempt to collect amounts from defendant in excess of judgment was a violation of the statute.

Greene was also sanctioned for failing to inform the trial court of a letter written by defendant to plaintiffs seeking to have the stipulation agreements modified due to the pending birth of a child. Greene does not deny the facts. Greene, however, contends that the statute only permits the trial court to sanction an attorney for filing a false pleading, motion or paper, and not for the passive conduct for which he was sanctioned.

Plainly, amended section 2 — 611 was intended to apply to all untrue statements given without reasonable cause to the court, whether active or passive, written or oral. Thus, in the present case, Greene’s failure to disclose the existence of defendant’s letter to plaintiffs in his motions for contempt or at any appearance before the trial court in connection with these motions is conduct within the purview of the statute. Accordingly, the trial court did not abuse its discretion when it ruled that Greene’s failure to inform the trial court of defendant’s letter to plaintiffs was a violation of amended section 2— 611.

Plaintiffs next argue that the trial court erred when it imposed sanctions for conduct that occurred prior to the effective date of amended section 2 — 611. Amended section 2 — 611 expands the scope of its predecessor by, inter alia, permitting the trial court to sanction attorneys as well as parties for violations of the statute. Amended section 2 — 611, however, does not apply retroactively to violations that occurred prior to November 25, 1986. (In re Marriage of Fahy (1991), 208 Ill. App. 3d 677, 687, 567 N.E.2d 552, 558.) We, therefore, must determine whether Greene’s sanctionable conduct occurred after November 25,1986.

On September 16, 1986, Greene filed a motion seeking to have defendant held in civil contempt for failing to abide by the stipulation agreements. Plaintiffs, however, were unable to obtain service on defendant on this motion, and on October 2, 1986, the trial court issued a rule to show cause why defendant should not be held in civil contempt. Thereafter, defendant filed substantially identical motions for contempt on December 18, 1986, January 29, 1987, February 19, 1987, and March 27,1987.

Greene had an obligation to disclose the existence of defendant’s letter to plaintiffs at the time of the filing of the initial motion for contempt, in each successive motion for contempt filed with the trial court, and in every appearance before the trial court in connection with the motion for contempt. It is clear that Greene failed to make the requisite disclosure during any of the subsequent motions for contempt filed after November 25, 1986, or during appearances before the trial court in connection with the motion after November 25, 1986. We also find that Greene’s attempt to collect amounts in excess of judgment occurred concomitantly with his failure to disclose the existence of the letter. We, therefore, conclude that the trial court imposed sanctions against Greene for violations that occurred after November 25, 1986, the effective date of amended section 2 — 611.

Plaintiffs next argue that the trial court erred when it imposed sanctions for activities that occurred before another trial judge. Plaintiffs contend that Judge McCormick is without discretion to award sanctions after Judge Jones entered a final order on August 7, 1987, when he denied Brubakken’s motion to correct the half sheet. An order is final if it terminates the litigation between the parties or disposes of their rights on some definite separate part of the litigation. (Knox v. Keene Corp. (1991), 210 Ill. App. 3d 141, 144, 569 N.E.2d 201, 203.) Following the entry of the August 7, 1987, order, litigation in the present case continued for almost three years. Furthermore, the August 7, 1987, order does not dispose of a separate part of the litigation. Accordingly, because the August 7, 1987, order was not a final order, Judge McCormick was not without discretion to enter sanctions against Greene in the present case.

Plaintiffs next argue that the trial court erred when it imposed sanctions where defendant’s fee petition lacked sufficient detail upon which to base an award. A petition for attorney fees and costs brought pursuant to amended section 2 — 611 must meet minimum requirements of specificity so that a responding party has an opportunity to challenge and defend against the allegations. (Jackson v. Pellerano (1991), 210 Ill. App. 3d 464, 473, 569 N.E.2d 167, 174.) Once a finding of sanctionable conduct has been made, a petition for fees must be presented to the court which adequately details the services performed, by whom they were performed, the time expended and the hourly rate charged. (Harris Trust & Savings Bank v. American National Bank & Trust Co. (1992), 230 Ill. App. 3d 591, 595, 594 N.E.2d 1308, 1312.) After the trial court makes a determination as to the reasonableness of attorney fees and costs, that determination will not be disturbed on appeal absent an abuse of discretion. (Johns v. Klecan (1990), 198 Ill. App. 3d 1013, 1018-19, 556 N.E.2d 689, 692.) It is plain that the fee petition here provides a fall accounting of all work performed by defendant’s counsel defending against Greene’s sanctionable conduct. Defendant’s fee petition includes a concise explanation of the nature of the task, the attorneys working on the matter, the amount of time expended and the hourly rate charged. In addition, we find that the trial court did not abuse its discretion when it imposed an award of fees and costs in the amount of $6,686.70.

Plaintiffs next argue that the trial court erred when it imposed sanctions where no evidence was proffered showing that defendant had actually paid attorney fees defending against Greene’s sanctionable conduct. Plaintiffs contend that “since Morrison cannot prove the fees she paid on this matter, any award of sanctions is against the manifest weight of the evidence, as same is not reasonable.” We find plaintiffs’ argument to be completely without merit, since it is irrelevant to a finding of reasonableness whether a party has already paid his or her attorney fees.

Plaintiffs next argue that Carmel, Baker & Marcus, Ltd., was denied due process of law when the trial court modified its previous order sua sponte to make the law firm jointly and severally liable for the conduct of its associate. On March 13, 1990, the trial court entered an order imposing sanctions against Greene pursuant to amended section 2 — 611. On April 6, 1990, the trial court modified its March 13, 1990, order sua sponte to make Carmel, Baker & Marcus, Ltd., jointly and severally liable for the sanctions entered against Greene. Plaintiffs contend that the trial court’s modification of its previous order violates due process under the United States and Illinois constitutions because it had no notice that sanctions against it were to be imposed.

A principal is liable for the acts of an agent committed within the scope of his authority. (Lundberg v. Church Farm, Inc. (1986), 151 Ill. App. 3d 452, 462, 502 N.E.2d 806, 813.) An attorney of a law firm is an agent of the firm when acting in the exercise of his duties and pertaining to matters within the scope of his authority. (See Werner v. Botti, Marinaccio & DeSalvo (1990), 205 Ill. App. 3d 673, 679, 563 N.E.2d 1147, 1152.) In the present case, it is undisputed that Greene was an attorney at Carmel, Baker & Marcus, Ltd., acting in the exercise of his duties and within the scope of his authority at the time of his sanctionable conduct. Carmel, Baker & Marcus, Ltd., therefore, is jointly and severally liable for the sanctions entered against Greene, regardless of the April 6, 1990, order. Accordingly, because the April 6, 1990, order does not alter the rights or liabilities of the parties, Carmel, Baker & Marcus, Ltd., was not denied due process of law.

Plaintiffs next argue that the trial court erred when it imposed sanctions against Carmel, Baker & Marcus, Ltd., after it discharged Greene from any personal liability arising from his conduct in this matter. On April 16, 1990, the trial court entered an order vacating the sanctions it imposed against Greene individually, but retaining the sanctions against Carmel, Baker & Marcus, Ltd. In its ruling, the trial court stated:

“Having listened to Mr. Greene’s recitation as to how he, as an employee of the firm, worked within the procedures employed by that firm, it would appear that he did not have the responsibility, that the conduct complained of, or that transpired in this matter, to be specifically directed to him.
It would appear that the overall responsibility for the legal representation of the plaintiff in this case is with the firm of Carmel, Baker & Marcus; that the attorney did not have the wide range of involvement and discretion.”

While it may be true that Greene did not have absolute discretion over the management of this case, Greene cannot disclaim responsibility for his actions here on the grounds that he was acting under the direction of a supervising attorney or that other attorneys had been working on the case prior to his involvement. The record indicates that Greene had sufficient discretion and control over the present case that he must ultimately be held responsible for his conduct. We, therefore, conclude that the trial court erred when it discharged Greene from any personal liability arising out of his conduct in the present case. Accordingly, the order vacating the sanctions against Greene is reversed, and the order imposing the sanctions against Greene and Carmel, Baker & Marcus, Ltd., jointly and severally, is reinstated.

Plaintiffs next argue that the trial court erred when it ruled that defendant paid $6,782 in partial satisfaction of the Brubakken judgment where the record reveals payments of a lesser amount. We are unable to determine from the record the amount defendant has paid to plaintiff Brubakken. This matter, therefore, must be remanded for further proceedings to determine the amount paid by defendant in partial satisfaction of the Brubakken judgment and entry of an appropriate order.

Accordingly, the judgment of the circuit court is affirmed, except that the April 16, 1990, order is reversed. The case is remanded for further proceedings consistent with what is stated herein.

Affirmed in part; reversed in part and remanded.

TULLY and CERDA, JJ., concur.


author: JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES WASHINGTON, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 87—1311
    Opinion filed December 31, 1992.

      Rita A. Fry, Public Defender, of Chicago (Millicent Willis, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald T. Lyman, and Bennett E. Kaplan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

The defendant, James Washington, was convicted in a bench trial of aggravated criminal sexual assault and sentenced to 10 years’ imprisonment. He appealed the conviction and this court, with one justice dissenting, reversed and remanded the case because it believed defendant was denied effective assistance of counsel. The State filed a petition for leave to appeal that was granted by the Illinois Supreme Court. Thus, this case comes before us on remand from the Illinois Supreme Court (see People v. Washington (1991), 142 Ill. 2d 663, 582 N.E.2d 183), wherein a supervisory order was entered vacating the judgment of the appellate court with directions to reconsider our decision in light of the decision in People v. Szabo (1991), 144 Ill. 2d 525, 582 N.E.2d 173.

Upon reconsideration and having read supplemental briefs of the parties and heard oral argument, we now affirm the conviction and sentence herein. Numerous arguments were raised in the original appeal. However, this court initially ruled on the basis of ineffective assistance of counsel and, hence, did not address any of the additional issues. We now must do so.

Defendant raises the following issues on appeal: (1) he received ineffective assistance of counsel where disciplinary proceedings were simultaneously pending against his defense counsel; (2) he was not proven guilty beyond a reasonable doubt where the victim’s testimony was neither corroborated nor clear and convincing; and (3) the trial court considered improper factors in determining the defendant’s guilt. We find that each of these contentions lacks merit.

While the facts in great detail are set forth in the original appellate court opinion (People v. Washington (1990), 210 Ill. App. 3d 147, 568 N.E.2d 1279), we shall here recount the details of the occurrence in sufficient detail to understand the additional issues raised and the law applicable thereto.

The following facts were presented at trial. The victim testified for the State that upon the recommendation of a person known as Cordell, she and her boyfriend, on May 29, 1986, rented a room from the defendant for which they paid him $30 for 30 days. The room was located in the same apartment in which defendant resided. Prior to renting the apartment, the victim stated that she had never met defendant before, nor had she, or her boyfriend to her knowledge, ever seen the apartment prior to the rental. They were initially given one key to the apartment, but subsequently had two keys made. Their first night in the apartment, she and her boyfriend slept on a queen size bed with only a box spring. The second day they shopped for food, took the groceries to the apartment and refrigerated them and then left the apartment. They went out drinking and consumed four bottles of wine. Upon returning to the apartment, they found the apartment locked behind burglar bars. While waiting to gain entrance, some of the defendant's friends arrived at the door, were let in and the victim and her boyfriend entered also at that time. However, upon seeing the victim and her boyfriend, the defendant requested that they leave the apartment. A fight ensued between defendant and the victim’s boyfriend at which time the defendant took the apartment key from him and then tore his pants with a knife trying to find money. The defendant searched the victim in the kitchen after which she went into the living room and sat on the couch next to her boyfriend.

The victim testified that she went to the bathroom at which time the defendant followed her. Once in the bathroom the defendant directed her to take off her pants which she declined to do. He then struck her in the head with a wine bottle and then ordered her to take the pants off. Once more, she refused. Defendant then cut her on the side of her back with the broken wine bottle. She then removed her pants and lay on the floor as told. Defendant then removed his pants, proceeded to sexually assault her, both vaginally and orally, until he ejaculated. He then left the bathroom and she followed shortly thereafter. They both went to the living room, where she saw her boyfriend sitting on the floor surrounded by five people. Eventually these individuals began threatening the victim and her boyfriend, and the defendant allowed them to leave the apartment. After leaving the apartment, the victim related to her boyfriend what had transpired in the bathroom. They went to a public telephone booth and called the police. The police arrived and transported the victim to Michael Reese Hospital for treatment. The victim further testified that while at the hospital, she gave her boyfriend the key to defendant’s apartment in order for him to accompany the police back to defendant’s apartment. She denied that she was having a menstrual period on the day of the incident.

Paul, the boyfriend, testified to basically the same facts as the victim with a few differences. He recalled that upon being told about the apartment by Cordell, he, the victim and Cordell went to look at the apartment. He also described the bed that they slept in the first night as being “a little less than full size.” He remembered hearing “pounding and scuffling” noises on the door and walls of the bathroom while the victim and the defendant were in the bathroom, and he was kept in the living room by the defendant’s friends upon defendant’s instructions to them. He noticed that the victim’s head and hands were bleeding when she came out of the bathroom and he also observed a large spot of blood on the back of her blouse. He and the victim called the police upon leaving the apartment, and the police arrived and transported the victim to the hospital. He accompanied the police back to the defendant’s apartment and gave them the key which the victim had given him at the hospital. The police opened the door of the apartment and arrested the defendant.

The parties stipulated that, if Dr. Gordon of Michael Reese Hospital were called to testify, he would state that when he examined the victim at the hospital, he noticed a .3-centimeter puncture wound on the left side of the back and a swollen laceration on her head. He would further testify that he took oral and vaginal smears from the victim which he gave to an evidence technician. It was also stipulated that Dr. Gordon would testify that when he examined the victim, she was found to be in the late stage of her menstrual cycle and upon the taking of a blood sample, her blood-alcohol level was 293 milligrams. It was further stipulated that if Mary Ann Caporusso, a microanalyst for the Chicago police department, were called to testify, she would state that upon performing a test on the oral and vaginal smears, the oral smear tested negative for spermatozoa and semen and the vaginal smear tested positive for spermatozoa.

Defendant’s testimony revealed that he was a recovering alcoholic and he contended that he had never met the victim until May 30, 1986, when she approached him as he was leaving Aleo drugstore and solicited him for a date. He stated that she was accompanied by Paul. He told her that he did not have enough money, but that there were others at his apartment who might be interested in putting together a “package deal.” She accompanied him to his apartment, they began drinking and she began talking “in riddles.” Thereafter, Paul arrived at the apartment and angrily took the victim to the bedroom, where he and she fought. The defendant testified that he went into the bedroom, broke up the fight, and noticed that her face appeared to be bleeding. After the victim and Paul left the apartment, the defendant noticed that his door key and .wallet were missing. Defendant denied that he had rented a room to the victim and Paul and that they had spent the night in his apartment. Defendant further denied having sex with the victim because she was drunk and could not establish a price. Defendant testified that he receives disability insurance because his left hand has been paralyzed for three years and, as a result of the paralysis, he does not have any strength in the left hand. Defendant also testified that after he had gone to bed on the night in question, the police entered his apartment with a key and searched the apartment. The police did not recover any broken bottles and they did not discover any blood.

Detective Robert Utter testified that he was assigned to investigate the rape of the victim. He went to defendant’s apartment accompanied by Paul to arrest defendant. He was unable to find any broken glass on the bathroom floor, and he observed the defendant take out his keys and wallet when he put on his trousers. Detective Utter further testified that defendant resisted the arrest and, because of defendant’s strength, it took both him and another officer to handcuff defendant.

Before we individually review defendant’s contentions raised on appeal, we note that much of our discussion and reasoning in this case is adequately set forth in the dissent in the original opinion. However, in light of our reconsideration of all issues involved and the review of this matter by the entire panel, the repetition of the analysis contained therein is necessary here. Because our disposition has changed upon this reconsideration, it is necessary to address and discuss each of the issues raised by defendant.

Defendant first argues that he was denied his sixth amendment right to the effective assistance of counsel where defense counsel was subject to pending disciplinary proceedings for professional misconduct while he was acting as defendant’s counsel. Defendant asserts that defense counsel’s alleged incompetence was shown by his inadequate preparation for trial as evidenced by his: (1) failure to question the victim about sexual relations with another on the night of May 30, 1986; (2) failure to introduce medical records documenting defendant’s disability; and (3) conducting rambling cross-examinations indicating his failure to conduct a pretrial investigation.

The purpose of the constitutional requirement that a defendant is entitled to the effective assistance of counsel is to insure that the defendant will receive a fair trial. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Moreover, the benchmark for determining an ineffective assistance of counsel claim is whether counsel’s performance so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. (People v. Cunningham (1989), 191 Ill. App. 3d 332, 337, 547 N.E.2d 765.) In order for a defendant to succeed on an ineffective assistance of counsel claim, he must show that counsel’s performance was so deficient that it fell below an objective standard of reasonableness. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) Moreover, counsel’s performance does not constitute ineffective assistance unless it is shown that the performance prejudiced the defense of the case. Strickland, 466 U.S. at 696, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Barnard (1984), 104 Ill. 2d 218, 233, 470 N.E.2d 1005.

In determining whether a defendant has been prejudiced, “the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246.) Furthermore, a totality of the evidence presented to the trier of fact must be considered when a court makes its determination that a reasonable probability exists that but for counsel’s errors the result of the proceedings would have been different. People v. Daniels (1987), 164 Ill. App. 3d 1055, 1083, 518 N.E.2d 669; People v. Wilson (1986), 149 Ill. App. 3d 1075, 1077-78, 501 N.E.2d 863.

The Strickland v. Washington Court further concluded that it is unnecessary for courts to determine whether counsel's performance was deficient before analyzing the prejudice suffered by the defendant as a result of the alleged deficiencies. (Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Enoch (1988), 122 Ill. 2d 176, 201, 522 N.E.2d 1124, 1137.) Moreover, the Illinois Supreme Court has recently held that in order for a defendant to establish prejudice, he must demonstrate, “not simply a possibility of prejudice, but that the claimed error worked to his actual and substantial disadvantage.” People v. Owens (1989), 129 Ill. 2d 303, 318, 544 N.E.2d 276.

The State correctly argues that there exists a strong presumption that conduct by counsel which involves trial strategy falls within reasonable professional judgment; therefore, a review of counsel’s competence will not be extended to his exercise of judgment, discretion or trial tactics. (Cunningham, 191 Ill. App. 3d 332.) However, defendant argues that the instant case is governed by People v. Williams (1982), 93 Ill. 2d 309, 324, 444 N.E.2d 136, wherein the Illinois Supreme Court concluded that pending proceedings before the Attorney Registration and Disciplinary Commission of the supreme court of Illinois during the same period that an attorney was representing three of four defendants in a capital case may have affected counsel’s ability to represent his client. Defendant argues that, in the case at bar, there were pending at the time of trial disciplinary proceedings against trial counsel which impaired counsel’s performance. He further maintains that such impairment resulted in an inability by counsel to adequately defend his client and, hence, a denial of competent representation.

We have previously held that the pendency of disciplinary proceedings alone does not necessarily establish that an attorney is incompetent to defend a person charged with a crime. (People v. Perry (1989), 183 Ill. App. 3d 534, 540, 540 N.E.2d 379.) Defendant’s reliance on Williams is misplaced. The factual matrix of that case is so totally distinguishable from the case at bar that it lends no support to defendant’s theory. Williams was a capital case in which the defense counsel represented three of four defendants. Two juries were impaneled and the trials were held simultaneously with counsel representing clients before both juries. At the same time, trial counsel had pending complaints before the Attorney Registration and Disciplinary Commission (ARDC). Upon conviction and imposition of the death penalty for defendant Williams, the court initially affirmed on appeal both the conviction and the sentence. However, while a petition for rehearing was pending, the trial counsel’s disciplinary case was orally argued in the supreme court. (He was subsequently disbarred, In re Weston (1982), 92 Ill. 2d 431, 442 N.E.2d 236.) It was at that time that the court became aware of matters which it subsequently determined could have impacted adversely on counsel’s performance at defendant Williams’ trial. Based upon these revelations, which included a statement by counsel regarding his mental and physical condition as a result of his woes, the supreme court granted the petition for rehearing, reversing and remanding the case for a new trial.

In granting the defendant a new trial, the court stated that because of the newly acquired information pertaining to counsel’s troubles with the ARDC pending at the same time as this procedurally complex capital case was being tried, it could no “longer say, with any degree of assurance, that Williams received the effective assistance of counsel guaranteed by the Constitution.” (Williams, 93 Ill. 2d at 324.) The Williams court cited numerous instances of inaction by counsel which under ordinary circumstances might have been attributable to either trial strategy or even an error in judgment, which does not establish incompetency. (See People v. Washington (1968), 41 Ill. 2d 16, 21, 241 N.E.2d 425; People v. Green (1967), 36 Ill. 2d 349, 351, 223 N.E.2d. 101.) However, because of the uniqueness of the situation, the supreme court declined to apply the established tests generally applied in deciding whether a defendant has been deprived of his constitutional right to the assistance of counsel. (Williams, 93 Ill. 2d at 325.) The court went on to say “considering the unique circumstances and sequence of events in this capital case, which will rarely, if ever, be duplicated, that the interests of justice require that Dennis Williams be granted a new trial.” (Emphasis added.) Williams, 93 Ill. 2d at 325.

It is our view that the instant case hardly duplicates the factual circumstances found in Williams. It is a one defendant, nonjury, non-capital, noncomplex case. The unique complexities existing in the Williams case are nonexistent here. Accordingly, we see no fundamental fairness necessity to abandon the established test used to determine the deprivation of effective assistance of counsel.

The second prong of defendant’s contention regarding ineffective assistance of counsel is that because a potential conflict of interest existed between himself and trial counsel, he was entitled to be admonished in detail regarding the nature of the conflict. He argues that notwithstanding a lack of actual incompetence the devastating burden and emotional stress of an attorney being subjected to disciplinary proceedings constitutes a conflict per se and must be intelligently and knowingly waived expressly by the client. He suggests that the proceeding which took place in the trial court addressing the waiver was a sham. If a conflict per se exists and if no intelligent waiver occurs, he contends no prejudice need be shown to support a reversal. In support of this argument defendant cites Williams (93 Ill. 2d 309), People v. Brown (1980), 80 Ill. App. 3d 616, 399 N.E.2d 1374, and Supreme Court Rule 401(a) (107 Ill. 2d R. 401(a)). As previously mentioned, Williams is inapposite. So, too, are Brown and Supreme Court Rule 401(a). In Brown, the statutory procedural safeguards are set forth concerning the waiver of a criminal defendant’s right to be represented by counsel and to proceed without any attorney.

The defendant has a fundamental right to receive effective assistance of counsel which requires that the defendant be afforded counsel who is free of conflicting interest or inconsistent obligations. (Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708; People v. Thomas (1989), 131 Ill. 2d 104, 111, 545 N.E.2d 654; People v. Olinger (1986), 112 Ill. 2d 324, 339, 493 N.E.2d 579.) The defendant is not required to show the existence of prejudice in order to justify a reversal of his conviction where defense counsel has an actual or possible conflict of professional interest. (Thomas, 131 Ill. 2d at 111; People v. Free (1986), 112 Ill. 2d 154, 167, 492 N.E.2d 1269; People v. Washington (1984), 101 Ill. 2d 104, 110.) Hence, we look at defendant’s per se contention in light of our supreme court’s mandate and we have reconsidered this matter in light of that court’s decision in Szabo. In Szabo, the defendant challenged his convictions of two counts of felony murder and one count of conspiracy to commit armed robbery arguing that he had received ineffective assistance of counsel because of his attorney’s pending problems before the ARDC which subsequently led to counsel’s disbarment. He also relied on the Williams decision. However, in Szabo, the Illinois Supreme Court held “that the Williams decision was an aberration peculiar to the facts of that case” and declined to follow its holding. (Szabo, 144 Ill. 2d at 529.) We believe that the Szabo decision rejects the proposition that a per se ineffective assistance of counsel claim is established through a showing that disciplinary proceedings existed or were pending against counsel while he was representing defendant at trial.

Under the facts of this case, although we do not view trial counsel’s representation as a per se conflict of interest, we nevertheless still look to the existence of prejudice to determine if defendant was deprived of his constitutional right to the effective assistance of counsel. A defendant may waive the right to a conflict-free counsel (Holloway v. Arkansas (1978), 435 U.S. 475, 483 n.5, 55 L. Ed. 2d 426, 433 n.5, 98 S. Ct. 1173, 1178 n.5), but the waiver must be knowingly made. (Olinger, 112 Ill. 2d at 339; People v. Kester (1977), 66 Ill. 2d 162, 168, 361 N.E.2d 569.) It is well settled that a defendant has not validly waived a conflict of interest unless he is admonished regarding the existence and the significance of the conflict. (Olinger, 112 Ill. 2d at 339; Kester, 66 Ill. 2d at 168.) In this case, defendant was in fact advised that counsel had pending disciplinary charges before the Attorney Registration and Disciplinary Commission, and the defendant persisted in his desire to be represented by Mr. Levin. Defendant signed an acknowledgement form which set forth Mr. Levin’s problem with the ARDC wherein he agreed nevertheless to retain Mr. Levin as his defense attorney. Specifically, the acknowledgement stated:

“ACKNOWLEDGEMENT
I, James Washington, acknowledge that I wish to retain SHERWOOD L. LEVIN for a criminal case I now have pending.
I have been advised by said SHERWOOD L. LEVIN that he has disciplinary charges pending and knowing that it is still my desire that he represent me in this matter.
DATED: August 1,1986
(Signature)”

The following colloquy occurred in the presence of the defendant:

“MR. LEVIN [Defense attorney]: Judge, I’m told, as I indicated to the Court, I thought there was a written waiver in the court file.
THE COURT: Okay. Record should reflect that I talked to Counsel concerning some ARDC problems that he may be having, and he has indicated that his client is aware of that and there’s a waiver, is that right, Mr. Washington?
THE DEFENDANT: Yes.
MR. LEVIN: I again talked with him, Judge, and he’s indicated to me he wishes to proceed today with my representing him, and wishes to persist in his waiver of a jury trial.
THE COURT: And if I recall right, none of the problems that you are having or were having had anything to do with ability.
MR. LEVIN: That’s correct, your Honor.
THE COURT: Or competency to handle matters, okay? Mr. Washington, your desire is still the same in relation to a jury? In other words, you are still giving up your right to a jury trial?
THE DEFENDANT: Yes, sir, your Honor.
THE COURT: Okay. Jury waiver received.”

While the defendant was informed of the disciplinary matter, it is not clear from the record that defendant knowingly and intelligently waived his right to a conflict-free lawyer. Neither the written acknowledgement nor the explanation given by the trial court guides the defendant in comprehending why there could be a conflict of interest. Moreover, the trial court did not explain the significance of the conflict and its potential impact on the attorney’s representation. (Olinger, 112 Ill. 2d 324, 493 N.E.2d 579.) Additionally, the record is devoid of any evidence that would support an argument that the trial court considered defendant’s background, conduct and experience in its determination as to whether or not an intelligent waiver occurred. See Washington, 101 Ill. 2d at 114; Johnson v. Zerbst (1938), 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019.

In Olinger the Illinois Supreme Court stated that “[a] defendant will not be deemed to have waived a conflict unless he is admonished as to the existence of the conflict and its significance.” (Olinger, 112 Ill. 2d at 339.) There the trial court tendered transcripts of tape-recorded evidence to be used against the attorney after it advised defendant of an investigation of his attorney which conceivably could' lead to a conflict of interest and criminal charges. Such an extensive undertaking by the court did not occur in the instant case. In light of the foregoing, we are unable to conclude that defendant knowingly and intelligently waived his right to a conflict-free attorney.

Consequently, assuming arguendo that a per se conflict of interest existed, we would submit that an examination of defendant’s waiver reveals that the waiver was inadequate. However, because it is our opinion that no conflict per se existed, we need not look at the waiver, but rather we are only required to make a determination of whether the attorney’s specific performance was so deficient as to result in prejudice, thereby depriving defendant of his constitutional right to effective assistance of counsel.

Initially, defendant complains of the failure of his attorney to pursue a line of questioning on cross-examination relating to complainant’s sexual activities on the evening in question with persons other than himself. He postulates that had such questioning occurred it could have provided an explanation for the presence of semen and spermatozoa in her vagina. He opines that such interrogation would not have been barred by the rape shield law. (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 7.) It is his view that the rape shield law only precludes as evidence prior sexual activity. The prosecution, however, disagrees as it argues that the rape shield law does apply and also that the decision not to cross-examine complainant on this issue may have been simply trial strategy. We agree.

First, we find that section 115 — 7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 7), commonly known as the rape shield statute, would have excluded defendant in a trial on charges of criminal sexual assault and aggravated criminal sexual assault from cross-examining the victim about her purported sexual activities with other persons and alleged prostitution. See People v. Sandoval (1990), 135 Ill. 2d 159, 191-92, 552 N.E.2d 726; People v. Grant (1992), 232 Ill. App. 3d 93, 103, 596 N.E.2d 813.

Recognizing that there exist certain situations in which the preclusion of the rape shield statute may not apply because of the defendant’s greater constitutional right to confrontation, we, however, conclude that we are not here confronted with such an applicable situation. (See Sandoval, 135 Ill. 2d at 191-92.) Moreover, even assuming arguendo that we were confronted with an applicable situation demanding emphasis of the right of confrontation over the preclusion of the rape shield statute, we would be inclined to agree with the State’s argument that the decision not to conduct the kind of cross-examination now suggested in retrospect by the defendant can be viewed as trial strategy. There appears nothing in the record to suggest that counsel knew he would get a favorable response from such questioning. It is a matter of sound trial practice not to ask questions if you are unsure of what the answer might be. Hence, we cannot say that counsel’s failure to pursue such questioning was not a sound trial strategy. Further, although it may have been improper under the rape shield law to pursue such questioning, the tactic that counsel pursued instead was to argue inferences in his closing argument:

“MR. LEVIN [Defense counsel]: I would submit to the Court that although the laboratory ultimately found the presence of semen in the vaginal area of [the victim], there is nothing, your Honor, that links that semen to this defendant.
I would [state] to the Court that she is more than likely having a relationship with [RS.] who was her live in boyfriend. That there is a likelihood that she has on occasions close in time to the incident had sexual relations with him. She’s also, I would submit to the Court, a prostitute. There is nothing, your Honor, that singles out James Washington as having been the person who deposited the semen found in her vagina as opposed to any other person.”

Additionally, defendant contends that his lawyer’s representation was deficient as a result of his failure to introduce into evidence medical records which documented his disability in his left hand. It is axiomatic that one cannot expect to receive perfect representation nor does the constitution require it. (People v. Blommaert (1989), 184 Ill. App. 3d 1065, 1075, 541 N.E.2d 144; People v. Jackson (1986), 145 Ill. App. 3d 789, 795, 495 N.E.2d 1359.) While medical records might have provided corroboration of defendant’s disability, the trial court had an opportunity to see the defendant’s use or nonuse of his left hand and by his remark was convinced that the defendant had a disability. The defendant maintained that he lacked the physical strength in his left hand to “hold a knife” or “swing a bottle” as alleged by RS. and the victim. The trial court expressed concern with the evidence presented regarding defendant’s disability by stating that, “there is no question about the fact that the defendant has a problem with his left hand. Whether it’s anywhere near as serious as he indicates, I doubt it. But he does have some kind of problem with his left hand. And he does have a hand that apparently cannot be opened all the way.” While medical records, if they existed, may have tended to corroborate the defendant’s claim of lack of strength, we cannot say that counsel’s failure to introduce such records rises to the level of incompetency, nor do we find that the absence of such evidence substantially prejudiced the defendant. Defendant displayed his inability to open his hand more than two-thirds of the way, demonstrating that his fingers were unable to bend; showed that while he could hold a styrofoam cup with the left hand, he was unable to lift it, and provided the court with an explanation of the paralysis. Moreover, even if counsel’s failure to provide such evidence can be deemed an error in judgment, no prejudice resulted since the court found that the State’s witness, P.S., corroborated the defendant’s explanation of his infirmity. The court found that the paralysis in the defendant’s left hand provided an explanation to P.S.’s testimony on behalf of the prosecution that defendant’s friends had switched the knife out of defendant’s left hand while he and P.S. were fighting.

Defendant also asserts that his ineffective assistance of counsel claim is further supported by defense counsel’s rambling cross-examination indicating a failure by counsel to conduct a pretrial investigation. However, defendant’s assertion is not supported by the record. The record indicates that the trial judge commented on defense counsel’s “extensive job” of cross-examining the complainant, witnesses and police officers even though “little impeachment” resulted. Defendant did not identify any specific examples of rambling and a review of defense counsel’s cross-examination does not support defendant’s contention in that connection.

It is our view that while the defendant may not have knowingly waived his right to a conflict-free lawyer, he is required to show that he was prejudiced thereby in order to substantiate his claim that he was deprived of the effective assistance of counsel. In light of the foregoing analysis, we see no prejudice suffered by the defendant as a result of Mr. Levin’s representation. The record reflects that counsel vigorously examined and cross-examined the witnesses, argued extensively and pointed out conflicting and inconsistent testimony, and generally provided adversarial representation. As pointed out earlier, this case was a bench trial which had no complex issues. We do not find a reasonable doubt that the results of the proceedings would have been different, but for defense counsel’s failure to question the victim about sex with others on the night of May 30, 1986, or his failure to introduce medical records relating to defendant’s disability, as required by People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246 (see also Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052). In reviewing the record as a whole, it is our view that defendant was given adequate representation.

Defendant next contends that he was not proven guilty of aggravated criminal sexual assault beyond a reasonable doubt where the testimony of the complainant was neither clear and convincing nor corroborated. Defendant argues that the testimony of the State’s witnesses was riddled with inconsistent, illogical and confused facts and the tale which was woven by the two witnesses was so ludicrous as to be totally unbelievable.

In order to find defendant guilty of aggravated criminal sexual assault, the trier of fact must find that the accused committed an act of sexual penetration by the use of. force or threat of force, and that he caused the victim bodily harm or had displayed, threatened to use, or had used, a dangerous weapon. (People v. Tanner (1986), 142 Ill. App. 3d 165, 168, 491 N.E.2d 776.) The trier of fact is in a superior position to observe the demeanor of the witnesses (People v. Dixon (1985), 133 Ill. App. 3d 1073, 1081, 480 N.E.2d 128), and the credibility of the witnesses is a matter for the trier of fact. People v. Jackson (1973), 54 Ill. 2d 143, 149, 295 N.E.2d 462; Dixon, 133 Ill. App. 3d at 1082; People v. Baker (1979), 78 Ill. App. 3d 411, 416, 396 N.E.2d 1174; People v. Mendoza (1978), 62 Ill. App. 3d 609, 615, 378 N.E.2d 1318.

In the instant case, the resolution of defendant’s guilt depended upon the credibility of the witnesses and the weight to be accorded to their testimony. Such determinations are within the province of the trial court. We would note that while there are minor inconsistencies in the testimony of the witnesses regarding collateral or insignificant facts, most of the testimony is corroborated by each witness’ statements. Some of the discrepancies complained of include the victim’s testimony that the bed was queen-sized and Paul’s testimony that the bed was twin or “less than full” size; whether the apartment was or was not seen before the $30 was paid; and whether the victim was menstruating. We consider these first two discrepancies to be minor details irrelevant to the issue of whether or not on May 30, 1986, defendant followed the victim to the bathroom and forced her to have oral and vaginal sex. With respect to whether she was menstruating on May 30, there is no evidence in the record to support that assertion. The stipulation entered into regarding Dr. Gordon’s testimony was as follows: “that he examined [victim] and found her to be in the late stage of her menstrual cycle.” We would take judicial notice of the scientific fact that the normal menstrual cycle of a female is 28 days. There is nothing contained in the stipulation that Dr. Gordon found the victim to be menstruating. In any event we find this discrepancy to be likewise irrelevant to the central issue of whether defendant forced the victim to have sex with him.

On the other hand, the victim testified to many facts which were corroborated by Paul’s testimony, Detective Utter’s testimony or the medical stipulation. For instance, she described the sequence of events in the bathroom wherein defendant allegedly entered her orally and vaginally, but that he did not ejaculate in her mouth. The evidence presented at trial was that an oral smear and a vaginal smear were taken and the oral smear was negative but the vaginal smear was positive for semen and spermatozoa. She also testified to being struck in the head with a bottle and to being stabbed by the broken bottle. During the doctor’s examination of her, he observed a puncture wound on the left side of her back and a laceration to her head with accompanying swelling. This was also observed by Detective Utter and by Paul. Paul testified that the defendant tore his pants pocket during the struggle to retrieve the apartment key. Detective Utter testified that he observed that Paul’s trouser pocket was tom.

Additionally, the victim immediately informed her boyfriend about the sexual attack and promptly notified the police. We have previously held that a prompt complaint to the police of a rape is sufficient corroboration of a complainant’s testimony.

On this issue defendant complains that the trial court’s reluctance to convict on the evidence presented is further evidence of the insufficiency of the evidence. It is true that the trial court commented about the high level of intoxication as it related to the witnesses’ ability to observe or remember. However, the record reveals that his concerns were satisfied by Detective Utter’s testimony that the witnesses provided a coherent account of what took place. While the court also remarked that the police did a “shoddy job,” nowhere in this record does the court ever express any doubt of the defendant’s guilt. The record reflects that the trial court took its time and very conscientiously and meticulously examined all of the evidence and made extensive findings of fact. The court specifically stated:

“When I heard the witness as I indicated before, I found that she was a credible witness and I found that the witness, P. S., (Paul) was also in that category, and I didn’t believe the defendant.”

We, therefore, concur that the evidence adduced at trial was sufficient for the trier of fact to conclude that the defendant was guilty beyond a reasonable doubt.

Defendant’s final contention is that the trial court considered improper factors in determining his guilt. He specifically maintains that the judge considered several matters outside the trial record in reaching his decision. He posits that the court, at the end of closing arguments, elicited defense counsel to speculate about the motivation prompting the victim and her boyfriend to testify against defendant. Defendant refers to the court’s questioning of counsel as his own private investigation. In support of his contention he cites People v. Harris (1974), 57 Ill. 2d 228, 314 N.E.2d 465, and People v. Nelson (1974), 58 Ill. 2d 61, 317 N.E.2d 31. Defendant’s reliance on each of these cases is misplaced.

In Harris, the court sought to ascertain whether the alibi presented was the same as in an earlier trial. In so doing the court there asked the defense counsel what defendants had told him (or his office) on a prior occasion. The trial court found defendants guilty when defense counsel was unable to corroborate defendants’ alibi testimony. Harris is clearly distinguishable from the case at bar as the court there was actually seeking to learn about evidence elicited in another proceeding part of another record. In the instant case, it is clear that the court was simply trying to comprehend the defendant’s theory. Furthermore, there is nothing contained in this record which suggests that the court used the theory advanced by Mr. Levin in determining defendant’s guilt.

In Nelson, it was alleged that the court had engaged in two fact-finding conferences in its chambers in an ex parte meeting with only the State’s Attorney. In the instant case, the trial court’s questions were propounded in open court to defense counsel in defendant’s presence. We have previously sanctioned inquiries of trial counsel for purposes of clarifying material issues in a case. (People v. Jackson (1975), 31 Ill. App. 3d 244, 333 N.E.2d 652.) Thus, we view the court’s actions in that light. At the very most, the trial judge’s conduct was harmless. Defendant has failed to demonstrate in what manner he was prejudiced.

Defendant also contends that the trial court, by its statement that defendant “had no way to account for the puncture wound in the back of the victim,” shifted the burden of proof to the defendant. We disagree and view that comment as simply a pointing out that the defendant had attempted to provide an explanation regarding all of the evidence, but that he failed as to that particular evidence. In any event we discern no prejudice to the defendant by virtue of the comment.

The defendant’s final complaint regarding the court’s improper use of factors relates to the court’s comment of the victim’s cooperation. He contends that the court based its finding of guilt on her cooperation in prosecuting defendant despite the fact that she had previously failed to appear and a rule to show cause was issued. The court’s comments, however, clearly reflect that it was fully aware that initially she did fail to appear. It commented that the State had problems getting her to appear at the outset, but that when she did begin to appear she did so steadily and unfailingly. It is proper for the trial court to comment on the possible bias or interest a witness may have in testifying. People v. Brown (1975), 32 Ill. App. 3d 182, 336 N.E.2d 523.

Accordingly, for all of the foregoing reasons, we affirm the judgment of the trial court finding defendant guilty of aggravated criminal sexual assault.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE COUSINS

text:
    GUARANTEE TRUST LIFE INSURANCE COMPANY, Plaintiff-Appellant, v. GILLDORN INSURANCE MIDWEST CORPORATION et al., Defendants-Appellees.
    First District (5th Division)
    No. 1 — 90—1796
    Opinion filed December 31, 1992.

      Jenner & Block, of Chicago (Linda L. Listrom and Susan L. Theiss, of counsel), for appellant.
    Burke, Wilson & McIlvaine (William T. Dwyer, Jr., and LeAnn Pedersen Pope, of counsel), and Keck, Mahin & Cate (Weston W. Hanscom and Robert A. Roth, of counsel), both of Chicago, for appellees.
   JUSTICE COUSINS

delivered the opinion of the court:

Plaintiff, Guarantee Trust Life Insurance Company (Guarantee), brought action against defendants Gilldorn Insurance Midwest Corporation (Gilldom Insurance), Minnesota Mutual Life Insurance Company (Minnesota Mutual), and Gilldorn Mortgage Midwest Corporation (Gilldorn Mortgage) claiming breach of contract, breach of fiduciary duty, and tortious interference with prospective business advantage against Gilldom Insurance; inducing breach of fiduciary duty and tortious interference with prospective business advantage against Minnesota Mutual; and breach of fiduciary duty against Gilldom Mortgage. At the close of the plaintiff’s case in chief, defendants made motions for directed findings. The trial court, in a nonjury trial, made findings and entered judgment for all defendants on all counts.

Plaintiff appeals only the judgment in favor of Gilldom Insurance on the claim for breach of contract and fiduciary duty and in favor of Minnesota Mutual on the claim for inducing a breach of fiduciary duty.

The following issues are before this court for review: (1) whether the trial court erred in finding that Gilldorn Insurance did not breach section 2 of the agency agreement; (2) whether the trial court erred in finding that Gilldom Insurance did not breach its fiduciary duty to Guarantee; (3) whether the trial court erred in finding that defendant Minnesota Mutual did not collude or induce defendant Gilldorn Insurance to breach the fiduciary duty which it owed to Guarantee; and (4) whether the trial court erred in finding that Guarantee failed to prove it suffered any damages.

We affirm.

Guarantee is in the business of providing mortgage life insurance to mortgagors. On July 15, 1975, Guarantee entered into a collection contract (home loan protection plan agreement) with Gilldorn Mortgage under which Guarantee issued mortgage insurance policies to Gilldom Mortgage’s mortgage loan borrowers. Gilldorn Mortgage, as collector, was required to collect insurance premiums on such policies. This arrangement enabled these mortgage policyholders to submit one check to defendant Gilldorn Mortgage whereby defendant Gilldorn Mortgage would remit the mortgage insurance premium portion to Guarantee.

On the same day that it entered into a collection agreement with Gilldorn Mortgage, Guarantee entered into an agreement (general agency contract) with Gilldorn Insurance by which defendant Gilldorn Insurance was to forward applications for insurance to plaintiff, recruit and supervise representatives to procure applications for plaintiff, deliver policies when terms and conditions governed, and transmit all collections to plaintiff. Defendant Gilldom Insurance is a subsidiary of defendant Gilldom Mortgage.

Both agreements provided that the relationships could be terminated by either party upon 30 days’ written notice.

On August 30, 1983, pursuant to their respective contracts, defendants Gilldorn Mortgage and Gilldorn Insurance sent Guarantee notices terminating their contracts effective September 30, 1983. On September 7, 1983, 23 days before the contract’s effective termination date, Gilldom Mortgage sent notices to its mortgage loan borrowers informing them that effective October 1, 1983, Gilldorn Mortgage would no longer be affiliated with plaintiff and that they would no longer be able to include their insurance premium for Guarantee •with their monthly mortgage payment. The letters further apprised the borrowers that they had several options: they could continue being insured through Guarantee by paying Guarantee directly; they could remit one combined payment including mortgage and insurance and become insured through defendant Minnesota Mutual; they could be covered under both; or they could choose to decline all mortgage insurance. A considerable number of insurance policyholders opted to become insured through defendant Minnesota Mutual.

Guarantee brought an action against Gilldorn Mortgage and Gilldom Insurance alleging, among other things, breach of contract and breach of fiduciary duty because the notification letters were mailed before the 30-day effective termination date and also because it contended that the solicitous nature of the letters caused many of its insurance customers to leave Guarantee. Guarantee also brought an action against Minnesota Mutual claiming that Minnesota Mutual induced Gilldorn Mortgage and Gilldorn Insurance to breach the fiduciary duty owed to it.

At the close of Guarantee’s case, the trial court entered judgment in favor of all defendants on all counts of the complaint. Guarantee has appealed the portions of the judgment which were rendered in favor of defendant Gilldorn Insurance on its breach of contract and breach of fiduciary duty claims and also the portion of the judgment which was rendered in favor of defendant Minnesota Mutual for inducing breach of fiduciary duty.

I

Guarantee first contends that the trial court erred in finding that Gilldom Insurance did not breach section 2 of the agency agreement. For the reasons which follow, we disagree.

On appeal, the decision of the trial court should not be reversed unless it is contrary to the manifest weight of the evidence. Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154, 407 N.E.2d 43, 45; Dreyer Medical Clinic v. Corral (1992), 227 Ill. App. 3d 221, 225, 591 N.E.2d 111, 113; Vandevier v. Mulay Plastics, Inc. (1985), 135 Ill. App. 3d 787, 790, 482 N.E.2d 377, 379.

When ruling on a motion for judgment at the close of a plaintiff^ case in a nonjury case, the court must determine whether the plaintiff has made a prima facie case by presenting some evidence on every element essential to his cause of action. If the plaintiff fails to present a prima facie case, then the defendant is entitled to judgment as a matter of law. Kokinis, 81 Ill. 2d at 154, 407 N.E.2d at 44; Vandevier, 135 Ill. App. 3d at 790, 482 N.E.2d at 379-80.

However, if the plaintiff presents a prima facie case, the court must consider all evidence, including evidence favorable to the defendant, pass on the credibility of witnesses, draw reasonable inferences from the testimony, and generally consider the weight and quality of the evidence to determine if a prima facie case still exists. Kokinis, 81 Ill. 2d at 154, 407 N.E.2d at 44; Vandevier, 135 Ill. App. 3d at 790, 482 N.E.2d at 379-80.

The court’s weighing process may result in the negation of some of the evidence necessary to the plaintiff’s prima facie case, in which event the court should grant the defendant’s motion and enter judgment in his favor. Kokinis, 81 Ill. 2d at 154-55, 407 N.E.2d at 45.

Gilldom Insurance does argue that it is not liable because Gilldorn Mortgage, and not Gilldorn Insurance, sent the letters to the insureds. We do not agree with this argument. There was sufficient evidence establishing that Gilldorn Insurance participated with Gilldom Mortgage in dispatching the communications which were sent to the insureds.

However, the primary issue is whether the letter breached the contract. We hold that the trial court’s finding on this issue is supported by the evidence.

The trial court considered the general agency contract. Section 2 of the general agency contract provided:

“The General Agent shall forward applications for insurance and annuities to the Company for consideration and shall deliver policies when the terms and conditions governing such delivery have been complied with and shall promptly transmit all collections to the Company. The General Agent shall make every reasonable effort to maintain in force all policies of the Company in his territory and shall render all reasonable assistance in connection therewith.” (Emphasis added.)

The trial court considered the content of the letters. The letters sent to the insureds stated:

“Effective October 1, 1983, you will no longer be able to include the premium for this coverage with your regular monthly mortgage payment. If you would like to continue paying your mortgage life premiums along with your monthly mortgage payment, we can provide this service for you through Minnesota Mutual Life.
You may have the right to continue your old coverage by contacting the insurer about making direct premium payments. If so, you can keep either one or both of these plans — the choice is up to you. In any case, the insurance coverage is not required under your mortgage loan.”

The September 7, 1983, letters which Gilldorn Mortgage sent apprised its mortgagors that effective October 1, 1983, premiums for insurance coverage provided by Guarantee would no longer be accepted with regular mortgage payments. The letter advised the mortgagors that if they wished to continue to remit one combined mortgage and mortgage insurance payment they could do so and be covered by defendant Minnesota Mutual. Gilldom Mortgage further told the homeowners that they could continue to be covered by Guarantee by paying Guarantee directly, they could be covered by both insurance companies, or they did not have to be covered under any insurance policy.

There is no evidence that the September 7, 1983, letters caused any of the policies in force to be cancelled before the September 30, 1983, date.

The trial court correctly found that the “every reasonable effort to maintain” clause had to be read in connection with the right to terminate. The trial court also stated that implicit in the right to terminate a contract is a right to take on new loyalties and that there was nothing wrong with a company preparing for new business interests as an old business interest was ending.

“Words derive their meaning from the context in which they are used, and the contract must be viewed as a whole ‘by viewing each part in light of the others.’ ” Board of Trade v. Dow Jones & Co. (1983), 98 Ill. 2d 109, 122, 456 N.E.2d 84, 90, quoting La Throp v. Bell Federal Savings & Loan Association (1977), 68 Ill. 2d 375, 381.

The “every reasonable effort to maintain” clause did not preclude either Gilldom Mortgage or Gilldorn Insurance from communicating with the policyholders. Indeed, no issue exists that some form of communication with the policyholders was appropriate. We agree with the trial court’s finding that the letters did not violate section 2 of the contract. The contract expired September 30, 1983. The exercise of any options pursuant to the letters to discontinue insurance with Guarantee were to become effective after the termination of the agency contract.

II

Guarantee next asserts that the trial court erred in finding that Gilldom Insurance did not breach its fiduciary duty. For the reasons which follow, we disagree.

Plaintiff contends that defendants’ September 7 communications to its policyholders constituted a solicitation and, therefore, a breach of fiduciary duty. While we agree with Guarantee that Gilldom Insurance owed a fiduciary duty to Guarantee, we find no breach.

The contract unquestionably allowed for some communication by the general agent to the insureds regarding the termination of the agency relationship. The communications were proper because they apprised the policyholders of the four choices they had: to take one policy, the other, both, or neither. As such, the letters provided the policyholders with alternatives.

Plaintiff’s interpretation would improperly preclude the general agent from advising the insureds of alternative courses of action which they might take in order to maintain insurance coverage. The letters constituted a reasonable and proper means of entering the marketplace in a fully disclosed manner. Moreover, a public policy favoring communications between insurance companies or agents and policyholders regarding cancellations or nonrenewals of insurance is evidenced by section 143.18 of the Illinois Insurance Code, which provides:

“There shall be no liability on the part of and no cause of action of any nature shall arise against *** agents *** for any statement made *** in any written notice of cancellation or nonrenewal, or any other communications, oral or written, specifying the reasons for cancellation or nonrenewal, or for the providing of information pertaining thereto.” Ill. Rev. Stat. 1991, ch. 73, par. 755.18.

Although this statute applies specifically to cancellations or nonrenewals of insurance, the same policy considerations exist as to notices to terminate collections of insurance premiums. So, although, perhaps unintended in this case, the public interest has been served incidentally.

Ill

The trial court decided in favor of defendant Minnesota Mutual without making express findings regarding this decision as such. We hold that the trial court did not err because the disposition of plaintiff’s claims against Gilldorn Insurance were dispositive of Guarantee’s claim against Minnesota Mutual.

IV

Finally, Guarantee claims that the trial court erred in finding that it failed to prove it suffered any damages. For the reasons which follow, we disagree.

Recovery for prospective profits may be ascertained where there are any criteria by which the probable profits can be estimated with reasonable certainty. Midland Hotel Corp. v. Reuben H. Donnelley Corp. (1987), 118 Ill. 2d 306, 316, 515 N.E.2d 61, 66.

However, recovery of lost profits cannot be based upon mere conjecture or sheer speculation. (Midland, 118 Ill. 2d at 316, 515 N.E.2d at 66.) Since lost profits are frequently the result of several intersecting causes, it must be shown with a reasonable degree of certainty that the defendant’s breach caused a specific portion of the lost profits. Midland, 118 Ill. 2d at 316, 515 N.E.2d at 66.

Further, when the elements upon which a claim for prospective profits rests are numerous and shifting contingencies whose relation to the wrong complained of are problematical, and such profits are not provable with assurance as a trustworthy result of the alleged cause, then there can be no recovery. Midland, 118 Ill. 2d at 316, 515 N.E.2d at 66.

Here, Guarantee failed to prove that the conduct of defendant Gilldorn Insurance caused it injury. Plaintiff argues that the September 7, 1983, letters caused its mortgage insurance policies to lapse by 78%. Plaintiff’s expert stated that a normal lapse rate would have been 10% because people would sell their homes or otherwise feel that the insurance had served its purpose. The expert also stated that the lapse rate would tend to fluctuate in an unpredictable manner.

However, the trial court found the convenience factor of writing one check to be of great import and that a significant portion of policyholders would discontinue being insured by plaintiff absent that convenience. The trial court further found that according to the provisions of the contract, the relationship would terminate with the termination of the agency agreement.

The trial court also found that when one added the convenience factor of writing one check to the normal lapse rate, that plaintiff’s expert’s approximations about loss from changeover were hazardous and extremely difficult to make. Additionally, the trial court found plaintiff’s expert’s testimony to be highly subjective and “based on his personal assumptions.”

We hold that the trial court’s findings were not against the manifest weight of the evidence.

The judgment of the trial court is affirmed.

Affirmed.

GORDON and MURRAY, JJ., concur.