author: JUSTICE McMORROW

text:
    HERITAGE STANDARD BANK AND TRUST COMPANY, n/k/a Standard Bank and Trust Company, as Trustee, et al., Plaintiffs-Appellees, v. STEEL CITY NATIONAL BANK, as Trustee, et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—91—3191
    Opinion filed August 27, 1992.

      Edward P. Freud and Paula M. Carstensen, both of Ruff, Weidenaar & Reidy, Ltd., of Chicago, for appellants.
    William R. Warnock and Thomas R. Schutt, both of Donovan & Olsen, of Chicago, for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

The trial court entered an order granting a preliminary injunction which enjoined defendants from terminating a real estate contract pursuant to a notice of default from defendants to plaintiffs. On interlocutory appeal from that order, defendants contend that the trial court abused its discretion in issuing the injunction because plaintiffs failed to establish the elements necessary for issuance of preliminary injunctive relief.

The underlying litigation concerns a real estate contract entered into on August 12, 1986, for the sale and purchase of approximately 200 acres of land situated in unincorporated Palos Township in southwest Cook County, Illinois. The land had been zoned for a planned unit development (PUD) and is hereafter referred to as “Palos West.”

Plaintiff Heritage Standard Bank & Trust Company is the trustee of land trust 3167 and the contract purchaser of Palos West. Plaintiff Orchard Hill Building Co., a general partnership, is the sole beneficiary of the land trust, and plaintiff Robert C. Gallagher is a partner in Orchard Hill Building Co., who holds the power of direction under the trust. Defendant Steel City National Bank, as trustee of land trust 2536, is the contract seller of Palos West. The other defendants are the First Cook Community Bank, the beneficiary of the land trust, and Michael Habidas, the chairman of the board of directors of First Cook Community Bank and guarantor of the obligations of the land trust under the real estate contract. We will generally refer to the parties collectively as plaintiffs and defendants.

On January 18, 1990, plaintiffs filed a five-count complaint alleging that defendants were in breach of the terms of the contract, a copy of which was attached to the complaint. Under the terms of the contract, plaintiffs agreed to purchase subdivided, improved, single-family residential lots from defendants at the price of between $35,000 and $40,000 per lot. The parties anticipated that when fully subdivided, the Palos West property would yield approximately 500 residential lots. Defendants were to convey a specified number of lots in seven annual stages, from December 24, 1986, through December 24, 1992. As each group of lots was conveyed, plaintiffs would construct single-family homes on them for sale to the public. Plaintiffs paid $500,000 as earnest money deposit, and agreed to pay 10% interest on the principal balance pursuant to a formula detailed in the contract. The contract further provided:

“[I]n the event Seller is not able to convey title to any group of lots by the date upon which Seller is obligated to convey such lots fully improved [in accordance with the Palos West PUD Plan], because Seller has not completed the improvements relating to such group of lots in time, through no fault of the Purchaser, then, interest on the monies due from Purchasers for such group of lots shall not accrue from and after the agreed upon completion date of the improvements on such lots, up to and including their conveyance to Purchaser, fully improved as herein provided. If Seller fails to complete the improvements on such group of lots within sixty (60) days after the closing date with regard to such group of lots, then, all interest shall cease to accrue on the entire principal balance remaining due, until the improvements on such group of lots are completed ***.”

The first group of lots, consisting of 113 parcels, was conveyed on December 24, 1986. The stage 2 and stage 3 lots were conveyed in October 1987 and April 1989, respectively. Plaintiffs’ complaint related to a disagreement which arose prior to the conveyance of all of the stage 4 lots.

Plaintiffs alleged that under the original PUD plan, Palos West was to be a single unified community connected by a subdivision street system and containing numerous lake lots adjacent to a water detention area on the property. The complaint stated that on December 4, 1989, defendants, for the first time, furnished plaintiffs with a “Proposed Palos West Plan,” dated June 14, 1989, and informed plaintiffs that the proposed plan had already been approved by the Cook County Zoning Board of Appeals. Plaintiffs alleged that defendants’ failure to consult with plaintiffs or seek plaintiffs’ approval for the proposed plan violated the contract provision giving plaintiffs the right to approve the site plans for those portions of Palos West which had not yet been approved by Cook County. In a letter dated December 19, 1989, plaintiff Robert Gallagher notified defendant Michael Halikias that plaintiffs objected to the proposed plan because it: eliminated the lake frontage lots in the original PUD plan; eliminated a section of street which connected an otherwise isolated 10-acre tract of the development; created a traffic hazard by adding an intersection nearby two others; and decreased the average lot size by adding four lots to the isolated 10-acre tract. In a second letter, also dated December 19, 1989, Gallagher further advised Halikias that the contract obligated defendants to complete construction on “Phase VII” of Palos West and to convey the remaining, improved stage 4 lots by the scheduled closing date of December 24, 1989. Gallagher stated that if the property was not improved and conveyed in accordance with the original plan, interest on those lots would cease to accrue as of February 27, 1990, and that interest on all remaining lots would cease to accrue on March 24, 1990. Plaintiffs alleged, and defendants do not dispute, that defendants did not complete the improvements on 71 of the 240 stage 4 lots as provided in the original contract, and that no lots have been conveyed to plaintiffs since April 4,1989.

Plaintiffs asserted that defendants’ refusal to perform its obligations to improve the property in accordance with the original PUD plan constituted a breach of the real estate contract. Plaintiffs alleged that defendants’ failure to subdivide and improve the property in accordance with the original plan would cause irreparable injuries to plaintiffs. Plaintiffs sought a permanent prohibitory injunction restricting defendants from proceeding with the subdivision and improvement of Palos West under the proposed plan, a mandatory injunction compelling defendants to subdivide Palos West in accordance with the original plan, and specific performance.

On March 29, 1990, defendants filed their answer denying the material allegations of plaintiffs’ complaint. In early April 1990, plaintiffs tendered two checks to defendants as payment of interest owed on previously conveyed lots and a prorated portion of the interest for the quarter ending March 31, 1990. In a letter dated April 30, 1990, defendants asserted that the amount tendered by plaintiffs for the quarter ending March 1990 was insufficient. Defendants noted that the contract provided for the suspension of interest payments only if the failure to convey lots was “through no fault of the [plaintiffs].” Defendants maintained that plaintiffs were at least partially at fault for the delay at issue and, therefore, that interest continued to accrue and that plaintiffs’ failure to pay it constituted a breach of the contract. In a letter dated May 8, 1990, plaintiffs denied that they were partially at fault and stated that, absent substantiation of that claim, interest payments would not be made until defendants improved and conveyed the lots in accordance with the contract.

On June 4, 1991, after additional correspondence between the parties, defendants declared a “formal notice of default” on the contract because of plaintiffs’ failure to make quarterly interest payments after the quarter ending March 31, 1990. Defendants reiterated that plaintiffs were partially at fault for noncompletion of the improvements to the property; alleged that $125,000 was due and owing; and advised plaintiffs that if the default was not cured within 60 days, the contract would automatically be terminated and all earnest money and other deposits made by plaintiffs would be retained by defendants as partial liquidated damages.

On June 17, 1991, plaintiff filed a second amended complaint adding a sixth count which sought a declaratory judgment that plaintiffs were not at fault for the delay in completing the improvements of the lots in Palos West; that defendants were wholly at fault for the delay; that interest payments were not due under the contract until completion and conveyance of the improved lots; and that plaintiffs were not in default of the contract. Count VI, and a companion motion for a preliminary injunction, also sought to enjoin defendants from taking any action, pursuant to their formal declaration of default, to terminate any of plaintiffs’ rights and interests under the contract.

Defendants filed an answer and affirmative defenses to count VI of plaintiffs’ amended complaint, and a memo in opposition to the motion for a preliminary injunction. Defendants alleged that at the time the contract was executed, the parties were unaware or did not consider that 58 acres located in the area designated as phase VII of the Palos West PUD consisted of federally protected wetlands; that defendants were prohibited from developing the property without first obtaining permit approval from the Army Corps of Engineers pursuant to the Clean Water Act; and that the Army Corps of Engineers would not issue permit approval for the development of the phase VII portion of Palos West as set out in the original plan. Defendants argued that, because of the superseding Federal law, defendants were unable to perform their obligations under the contract, and, therefore, that performance of the contract could not be accomplished by the declaratory judgment or mandatory injunction requested by plaintiffs. Defendants asserted that the aforementioned frustration of the contract entitled them to termination of it and retention by them of a pro rata portion of the earnest money.

In their reply, plaintiffs denied that defendants were unaware of the existence of the wetlands. Plaintiffs further asserted that defendants breached the contract by preparing and seeking governmental approval for the revised development plans without consulting plaintiffs or obtaining plaintiffs’ approval as required by the terms of the contract.

On August 27, 1991, following a hearing, the trial court entered a preliminary injunction enjoining defendants “from forfeiting the rights of the plaintiffs under the real estate contract for the failure to pay interest until further order of court.” The trial court also ordered plaintiffs to deposit $100,000 in an interest-bearing account to secure payment of the interest in the event that defendants prevailed on the merits of the case. This timely interlocutory appeal from the issuance of the preliminary injunction followed.

A preliminary injunction is a provisional remedy in that it resolves no rights. Rather, it is granted to preserve the status quo prior to a hearing on the merits. (Gannett Outdoor v. Baise (1987), 163 Ill. App. 3d 717, 516 N.E.2d 915.) The status quo is that status which is necessary to maintain in order to prevent dissipation or destruction of the property at issue, pending a final hearing upon the merits. Gannett Outdoor v. Baise, 163 Ill. App. 3d at 721; Gold v. Ziff Communications Co. (1989), 196 Ill. App. 3d 425, 553 N.E.2d 404; Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 422 N.E.2d 1166; see Forest Preserve District v. Mt. Greenwood Bank Land Trust 5 — 0899 (1991), 219 Ill. App. 3d 524, 579 N.E.2d 1066; In re Marriage of Weber (1989), 182 Ill. App. 3d 212, 537 N.E.2d 1024.

Before an injunction should issue, the party seeking it must show that (1) the requesting party possesses a clearly ascertainable right or interest in need of protection; (2) there is no adequate remedy at law to protect the right; (3) irreparable harm will result if the equitable relief is not granted; and (4) there is a reasonable likelihood of success on the merits if the proof sustains the allegations. (Gannett Outdoor v. Baise, 163 Ill. App. 3d 717, 516 N.E.2d 915; Instrumentalist Co. v. Band, Inc. (1985), 134 Ill. App. 3d 884, 480 N.E.2d 1273.) In addition, the trial court must conclude that the benefits of granting the injunction outweigh the possible injury which the opposing party may suffer as a result of the issuance of the injunction. The decision to grant or deny preliminary injunctive relief is within the sound discretion of the trial court. Because the findings of the court should not be disturbed absent an abuse of discretion, the role of a reviewing court is limited to determining whether the trial court’s decision was contrary to the manifest weight of the evidence. Instrumentalist Co. v. Band, Inc., 134 Ill. App. 3d at 891.

Defendants first contend that issuance of a preliminary injunction was improper because plaintiffs failed to demonstrate the absence of an adequate remedy at law, or that they would suffer irreparable harm if the injunction was not issued. Defendants make several interrelated arguments in support of their position.

Defendants assert that the dispute at issue concerns payment of a liquidated sum of money, which is not the proper subject of a motion for injunctive relief. They argue that plaintiffs have an adequate remedy at law if they prevail on the merits of the case, because the only harm they would have suffered by denial of the injunction would be the loss of money paid as interest, a sum capable of exact computation. Defendants maintain that there is ample security for the compensation of any damages sustained by plaintiffs because under the contract, plaintiffs are entitled to a deed to the remaining 135 lots at any time; the value of those lots has significantly increased since execution of the contract; and the amount of interest could simply be deducted from the approximate $3 million balance due to defendants for those lots. Defendants also argue that plaintiffs did not claim irreparable harm due to any financial inability to pay the interest and, indeed, were able to deposit $100,000 as security for its payment in the event the court ruled against them on the merits of the suit.

Plaintiffs respond that defendants ignore key facts and raise matters not relevant to the issue on appeal. We agree.

Defendants’ arguments focus almost exclusively on the nonpayment of the quarterly interest payments as the basis of the dispute between the parties. Defendants urge that the issue for judicial resolution is whether, by granting the injunction, the trial court improperly allowed plaintiffs to continue withholding those payments until a final determination on the merits of the case. That is not the issue before us.

The dispute giving rise to the underlying breach of contract action by plaintiffs was defendants’ failure to improve and convey the phase VII lots in accordance with the terms of the contract. Whether plaintiffs were partially at fault for the noncompletion of the lots and, thus, whether or not they were entitled to withhold interest payments, were among the questions which would be determined following a hearing on the merits of plaintiffs’ action. Prior to any such hearing, however, defendants sent plaintiffs a formal declaration of default on the contract, asserting a breach of the contract by plaintiffs in failing to make quarterly interest payments. The declaration contained notice that if the default were not cured within 60 days, the contract would automatically terminate.

The contract was the source of plaintiffs’ rights in the property and the basis and subject matter of plaintiffs’ action. The right plaintiffs sought to protect in their motion for a preliminary injunction was not the right to withhold quarterly interest payments; nor is that what the injunction ordered. Rather, plaintiffs sought injunctive relief to protect their contractual ownership interest in the remaining lots of the Palos West development project pending a final determination of the case. They sought to prevent defendants from divesting plaintiffs of their interest in the property by terminating the contract, and further sought to preclude defendants from disposing of the property at issue. An ownership interest in property is a right for which injunctive protection may be granted. See Forest Preserve District v. Mt. Greenwood Bank Land Trust 5 — 0899 (1991), 219 Ill. App. 3d 524; In re Marriage of Weber (1989), 182 Ill. App. 3d 212.

Defendants argue that the injunction, which simply enjoins them from declaring a forfeiture of plaintiffs’ rights under the contract, should have been denied because the only harm plaintiffs would suffer would be monetary damages, compensable at closing from the sale proceeds. We reject this argument. Without the injunction, defendants could have proceeded to terminate the contract from which plaintiffs’ rights derived. Without contractual rights, plaintiffs could not demand conveyance of the property, and no other legal remedy would be adequate. Where land is the subject matter of the agreement, the inadequacy of the legal remedy is well settled. Giannini v. First National Bank (1985), 136 Ill. App. 3d 971.

Defendants cite Schodeen v. Chicago Title & Trust Co. (1987), 162 Ill. App. 3d 667, 515 N.E.2d 1339, as supportive of their position. In Schodeen, the trial court issued a mandatory injunction ordering the defendant to convey 26 real estate lots to the plaintiff, a real estate developer, pursuant to an installment contract similar to the one in the case before us. The appellate court held that the injunction should not have been granted because the evidence, including the plaintiff’s own testimony, established that any losses he might sustain by the delay or failure of the defendant to convey the lots were compensable in money damages capable of exact computation. The court also held that the injunction was improper because it upset the status quo, which was the defendant’s ownership of the property. The appellate court stated that rather than entering a mandatory injunction, “the trial court could have entered a preliminary injunction *** enjoining [the defendant] from conveying the lots to third parties until the case was decided on its merits. A traditional order of that type would have preserved the plaintiff’s claim to the property and *** would have also preserved [the defendant’s] right to a full hearing on the merits ***. In our opinion, the trial court’s summary divestiture of [defendant] of the 26 lots denied [it] the opportunity to litigate the matter and, in effect, afforded the plaintiff a grant of specific performance.” 162 Ill. App. 3d at 675.

Rather than supporting defendants’ position, Schodeen actually counters it. The injunction in the case sub judice was prohibitory rather than mandatory. It prohibited a disruption of the status quo, which in the case at bar is the continuation of the real estate contract between the parties. The injunction preserved plaintiffs’ ownership interests in the Palos West property by enjoining defendants from acting on their declaration of default and notice of contract termination. It was the type of injunction which the court in Schodeen stated could have been entered in that case.

Defendants now claim that they did not seek to work a forfeiture of plaintiffs’ contract rights, but simply to obtain the interest monies. The language of the notice of default, however, clearly and definitely states otherwise. A previous, albeit legally defective, notice in the record also unequivocally stated that by reason of plaintiffs’ defaults, the contract was terminated. We also note that in their answer to plaintiffs’ second amended complaint, defendants presented the affirmative defense that the contract was incapable of performance and requested a judgment declaring it to be terminated. Plaintiffs were justified in giving credence to defendants’ pronouncements.

Defendants contend that issuance of the injunction was an abuse of discretion for two additional reasons. First, defendants assert that the injunction did not serve the intended function of preserving the status quo. It is defendants’ position that the last, peaceable, noncontested status between the parties was plaintiffs’ payment of interest which had accrued up to March 30, 1990, and that it is that status which should have been maintained. We disagree. As defendants point out, the underlying litigation was already underway at the time plaintiffs made their interest payment. Both the complaint and defendants’ answer had been filed. The amounts paid by plaintiffs were for interest on previously conveyed lots and for the portion of the first quarter interest of 1990 prior to the February and March suspension dates. As stated above, the status quo to be maintained in this case was the continued validity of the real estate contract which defendants threatened to terminate.

Defendants also argue that the trial court improperly failed to balance the injunction’s burden on defendants against its benefits to plaintiffs. Defendants maintain that plaintiffs did not claim that payment of the disputed interest would be burdensome, whereas the court acknowledged that defendants would suffer a hardship if deprived of that interest. This argument distorts the issue.

Defendants’ notice of termination of the contract triggered the necessity for the injunction. The sole purpose of the injunction was to prohibit defendants from acting upon their declaration pending a hearing on the controverted facts. In the event plaintiffs do not prevail on the merits of their case, they will be liable to defendants for the interest payments they withheld. The amount of any money owed defendants is subject to exact computation. Issuance of the injunction does not deprive defendants of an adequate remedy at law if it is determined that plaintiffs wrongfully withheld those payments. In contrast, denial of the motion could have resulted in the divestiture of plaintiffs’ interest in the property and made it impossible for the trial court to grant the relief sought by plaintiffs in the event of a final determination in their favor on the merits of their complaint. The trial court properly balanced the equities in determining that issuance of the preliminary injunction was necessary to protect plaintiffs’ ownership rights in the property pending a hearing on the underlying case. We find no abuse of discretion in the issuance of a preliminary injunction in this case.

For the reasons stated, the order of the trial court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    THE PEOPLE ex rel. N B D TRUST COMPANY OF ILLINOIS, Trustee, et al., Plaintiffs-Appellees, v. THE VILLAGE OF HOFFMAN ESTATES, Defendant-Appellant.
    First District (5th Division)
    No. 1—91—0452
    Opinion filed August 28, 1992.

      Richard N. Williams, of Hoffman Estates, for appellant.
    Schiff, Hardin & Waite, of Chicago (Donald J. Kreger and Ruth E. Krugly, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs, N B D Trust Company of Illinois, Melvin Isenstein, Jules Laser, Anthony Pasquinelli, and Bruno Pasquinelli, filed a quo warranto complaint against defendant, the Village of Hoffman Estates (Village), alleging that the Village unlawfully annexed its property. The property was purportedly annexed under the authority of an annexation agreement between the Village and the previous owner of the property. The Village appeals from an order granting plaintiffs summary judgment and entering a judgment of ouster against the Village. We consider whether the trial judge, in ruling on a motion for summary judgment, properly determined as a matter of law that the Village abandoned the annexation agreement. For the following reasons, we reverse and remand.

On November 3, 1980, the Village entered into an annexation agreement with the previous owner of the property pursuant to its home rule powers and sections 11 — 15.1—1 through 11 — 15.1—5 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, pars. 11 — 15.1—1 through 11 — 15.1—5). The agreement required the owner, and any purchasers from the owner, to file a petition for annexation not later than 90 days after the property became contiguous to the Village and provided that the petition was subject to “contemporaneous” zoning and classification under applicable Village ordinances. If the property was not so zoned and classified, the agreement and the petition for annexation would be void. The Village agreed to annex the property. “[A]t such time” as the property became contiguous with the Village, it would classify, zone, and district the property so it could be developed as planned. The term of the annexation agreement was 20 years and it was binding on successor owners of the property. An ordinance was passed authorizing the Village to execute the annexation agreement.

On March 22, 1984, the previous owner filed a petition for annexation. The property became contiguous with the Village shortly thereafter, on May 7, 1984. On that day, an ordinance annexing the property was presented to the Village president and its board of trustees. The ordinance was tabled.

On March 13, 1989, plaintiffs purchased the property from the previous owner.

On April 16, 1990, almost six years after the ordinance was initially presented, it was again presented to the Village president and the board. The ordinance was passed.

Plaintiffs filed a quo warranto complaint alleging that the Village did not lawfully annex the property. Plaintiffs alleged, among other things, that the annexation ordinance was void because plaintiffs, as the current owners of the property, did not file a petition for annexation with the Village. They requested a judgment of ouster.

The Village filed an answer denying the material allegations of plaintiffs’ complaint. As its affirmative defenses, the Village alleged that it acted under the authority of the annexation agreement and that plaintiffs should be compelled to file a petition to annex the property as required under the agreement.

Plaintiffs moved for summary judgment and argued, among other things, that the Village abandoned the annexation proceeding. The trial judge agreed. He found that because the Village waited almost six years from the time the property became contiguous before it annexed the property, the Village abandoned the annexation proceeding. He also found that because the Village abandoned the agreement, it was no longer enforceable and plaintiffs could not be compelled to file a petition for annexation. The judge granted plaintiffs summary judgment and the Village now appeals.

Opinion

The Village argues that the trial judge erred when he found that it abandoned the annexation because it had an annexation agreement with the previous owner of the property which was binding on plaintiffs. The Village also argues that the issue of abandonment was a question of fact which should not have been decided on summary judgment.

Summary judgment should be granted when the pleadings, depositions, admissions on file, and supporting affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1005(c).) In considering a motion for summary judgment, the trial judge should not decide an issue of fact but determine whether one exists. (Gatlin v. Ruder (1990), 137 Ill. 2d 284, 560 N.E.2d 586.) Summary judgment is a drastic remedy and should only be granted when the movant’s right to such relief is clear and free from doubt. Gatlin, 137 Ill. 2d 284, 560 N.E.2d 586.

A municipality may enter into an annexation agreement with the owners of land located in unincorporated territory. (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 15.1—1.) Annexation agreements are binding on successor property owners and successor municipal authorities and any party to the agreement may enforce and compel performance by civil action, mandamus, injunction, or other proceeding. Ill. Rev. Stat. 1989, ch. 24, par. 11 — 15.1—4.

In this case, the trial judge found that the Village abandoned the annexation because it waited six years from the time the property became contiguous before it annexed the property. The judge relied on two cases where the courts found that the municipalities abandoned annexation proceedings when they failed to act on them within a certain time period. (See People ex rel. Village of Worth v. Ihde (1961), 23 Ill. 2d 63, 177 N.E.2d 313; In re Petition of Village of Long Grove to Annex Certain Territory (1987), 156 Ill. App. 3d 1056, 509 N.E.2d 1041.) Both cases were based on the principle that an annexation proceeding instituted by a municipality has priority over those subsequently initiated by other municipalities involving the same property. See Long Grove, 156 Ill. App. 3d 1056, 509 N.E.2d 1041.

In Worth, property owners filed a petition to annex their land to Chicago Ridge. An ordinance was presented to the board of trustees of Chicago Ridge to annex the property, but it was tabled and not passed until nine months later. In that time, the property was included in the incorporation of Palos Hills. After a hearing, the trial judge found that Palos Hills properly incorporated the property. On appeal, the supreme court found that although the petition to annex was pending with Chicago Ridge prior to Palos Hills’ petition to incorporate, Chicago Ridge lost its jurisdiction because it failed to promptly annex the property. Noting that there was no showing that the delay was necessary, the court found that due to its inaction, Chicago Ridge abandoned the jurisdiction it had acquired by the petition to annex. “To decide otherwise would be to allow a municipality, by sheer inaction, to indefinitely frustrate the incorporation plans of a community.” Worth, 23 Ill. 2d at 68, 177 N.E.2d at 316.

In Long Grove, property owners filed a petition to annex their property to Buffalo Grove. Six months later, Long Grove passed an ordinance seeking to annex the property and filed it with the circuit court. For the next six years, Long Grove continued the court hearing on the ordinance. Then Buffalo Grove adopted an ordinance to annex the property and set a court hearing. Long Grove objected to Buffalo Grove’s attempted annexation. After a hearing, the trial judge found that Long Grove’s unreasonable and unnecessary delay of six years resulted in an abandonment of its annexation proceeding. The appellate court agreed. Long Grove attempted to distinguish Worth, which involved a legislative annexation from its case which involved a judicial annexation. However, the court found that all annexations are subject to statute and “[tjhere is nothing in the statute to indicate that any particular type of annexation should be exempt from the [Worth] rule regarding abandonment.” (Long Grove, 156 Ill. App. 3d at 1060, 509 N.E.2d at 1044.) As a result, Long Grove lost any priority it had over annexing the property and the court lost jurisdiction over the ordinance.

The present case is different from Worth and Long Grove because it does not involve municipalities competing to annex the same property and, as a result, there is no issue of loss of priority or jurisdiction. Also, the present case involves an annexation agreement between the Village and the previous owner of the property. As a result, any abandonment involved in this case would be abandonment of the annexation agreement rather than abandonment of priority over competing annexation proceedings.

Although the Village asserts that it could not have abandoned the proceedings because it had an annexation agreement, an annexation agreement is a contract which can be abandoned trader certain circumstances. A party may be found to have abandoned a contract when the circumstances or his conduct clearly evidences an abandonment and the acts relied upon must be positive, unequivocal, and inconsistent with the existence of the contract. (Bales v. Nelson (1986), 148 Ill. App. 3d 7, 499 N.E.2d 144.) Generally, the determination of whether or not a party’s acts and conduct amount to abandonment of the contract is a question for the trier of fact; however, such acts and conduct may be so decisive and unambiguous as to justify the trial judge in deciding the question as a matter of law. Bales, 148 Ill. App. 3d 7, 499 N.E.2d 144.

Neither Worth nor Long Grove, which the trial judge relied on, decided the abandonment issue on a motion for summary judgment. However, in People ex rel. Village of Buffalo Grove v. Village of Long Grove (1990), 199 Ill. App. 3d 395, 557 N.E.2d 643, the appellate court affirmed summary judgment for Buffalo Grove, finding that it did not abandon its annexation proceedings. The court did not consider whether it was proper to decide the abandonment issue on a motion for summary judgment.

Based on the determination that abandonment is a question of fact, summary judgment in plaintiffs’ favor could only be affirmed on that issue if the Village’s acts and conduct were so decisive and unambiguous that the issue could be decided as a matter of law. The record shows that the Village initially tabled the ordinance to annex the property in 1984 and did not consider it again until six years later. At that time, the ordinance was passed. During this entire time, the annexation agreement was in effect. The record does not disclose any reason for the Village’s delay in annexing the property. Further, other than the passage of time, there was no evidence of the Village’s acts or conduct showing that it no longer intended to annex the property as required under the agreement. The six-year delay alone, although significant, did not clearly evidence the Village’s intent to abandon the annexation agreement and there were no acts or conduct on the part of the Village which were positive, unequivocal, and inconsistent with the agreement. As a result, the evidence presented on the fact question of abandonment was not so decisive and unambiguous as to justify the trial judge to decide the issue as a matter of law. Summary judgment in plaintiffs’ favor must be reversed.

Plaintiffs argued that summary judgment in their favor should be affirmed because they did not sign the petition for annexation. They rely on In re Annexation to the City of Prospect Heights (1982), 111 Ill. App. 3d 541, 444 N.E.2d 758, which stated that an annexation petition and ordinance are void for want of jurisdiction if the petition was not signed by all of the owners of record, and People ex rel. Cherry Valley Fire Protection District v. City of Rockford (1970), 120 Ill. App. 2d 275, 256 N.E.2d 653, which held that the sufficiency of the petition is determined as of the time that the ordinance is passed. Neither of those cases involved annexation agreements, which are binding on successor owners, nor did they consider whether successor owners can be compelled to file a petition for annexation. Plaintiffs have not presented this court with authority that, under the circumstances of this case, the petition to annex is void.

Plaintiffs also argue that summary judgment should be affirmed because the agreement expired automatically when the Village did not comply with the timing requirements of the annexation agreement. The agreement provided that the petition for annexation was subject to contemporaneous zoning and classification and if this term was not met, the agreement was void. Plaintiffs rely on Elm Lawn Cemetery Co. v. City of Northlake (1968), 94 Ill. App. 2d 387, 237 N.E.2d 345, where defendant agreed in its answer that the developer did not comply with the time requirements of the annexation agreement and that under the terms of the agreement, it was void. Summary judgment was entered in plaintiff’s favor. In the present case, however, the Village has contested plaintiffs’ claim that it did not comply with the agreement. As a result, this is a disputed issue of material fact.

Reversed and remanded.

McNULTY, P.J., and GORDON, J., concur.


author: JUSTICE McNAMARA

text:
    WASTE MANAGEMENT OF ILLINOIS, INC., Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    First District (6th Division)
    No. 1—89—2541
    Opinion filed August 28, 1992.
    Pedersen & Houpt, of Chicago, for petitioner.

      Neil F. Hartigan, Attorney General, of Springfield (Michelle D. Jordan, Matthew J. Dunn, and Patricia E. Collins, Assistant Attorneys General, of Chicago, of counsel), for respondent Pollution Control Board.
    Larry M. Clark, of Mundelein, for respondent Village of Bensenville.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Waste Management of Illinois, Inc. (Waste Management), sought local site approval from the Village of Bensenville (Village) for construction of a solid waste transfer station pursuant to section 39.2 of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1987, ch. HV-k, par. 1039.2). Following an evidentiary hearing, the Village denied the request for site approval, and Waste Management appealed the Village’s decision to the Illinois Pollution Control Board (PCB). Ill. Rev. Stat. 1987, ch. HV-k, par. 1040.1.

On review, the PCB upheld the Village’s denial of site approval for the waste transfer station. Following the PCB’s denial of its motion to reconsider, Waste Management filed its petition for review with this court. Ill. Rev. Stat. 1987, ch. 111½k, par. 1041.

On July 20, 1990, this court issued an opinion which held that Waste Management’s application for a permit for the proposed waste transfer station was deemed approved due to the failure of the PCB to issue its opinion within the 120-day time period mandated by the statute. (Waste Management of Illinois, Inc. v. Pollution Control Board (1990), 201 Ill. App. 3d 614, 558 N.E.2d 1295.) The PCB appealed that decision to the Illinois Supreme Court, which reversed, holding that Waste Management’s permit application was not deemed approved because the July 13, 1989, order of the PCB was a final action as contemplated by the Act. Waste Management of Illinois, Inc. v. Illinois Pollution Control Board (1991), 145 Ill. 2d 345, 585 N.E.2d 606 (opinion modified upon denial of rehearing, February 3, 1992).

Upon remand from the Illinois Supreme Court, we now address Waste Management’s claim that its permit application for the proposed waste transfer station was improperly denied based upon its failure to prove sufficient need.

The record reveals that on July 22, 1988, Waste Management filed with the Village a proposal for construction of the solid waste transfer station on approximately seven acres of property located immediately east of Waste Management’s Garden City disposal plant, a waste hauling company, in the Village of Bensenville. The transfer station was designed to receive, compact, and transfer to sanitary landfills nonhazardous and nonspecific refuse. Its purpose was to make waste hauling in the service area more efficient and cost effective. The facility was also to be used as a processing center for recycling aluminum, paper, glass, wood skids, and cardboard. The transfer station operations, including unloading, compacting, and loading, were to be completely enclosed, minimizing or eliminating noise, odors, dirt, and litter.

On November 10, 1988, the Village held a hearing on the proposal for the waste transfer station. In addition to the members of the Village board, counsel for Waste Management and for the Village were present. At the hearing, Waste Management presented seven witnesses who testified in support of the application. No testimony or other evidence was presented in opposition to the proposal.

The evidence offered by Waste Management to establish the necessity for the waste transfer station consisted of the testimony of Edward Evenhouse, general manager of the Garden City disposal plant (Garden City). Evenhouse testified that the waste transfer station was necessary due to three factors: (1) the scarcity of available landfill space in the vicinity of the service area; (2) the imposition of a quota system by the nearest available landfill; and (3) the then-present inefficiencies of transporting waste from the service area to existing disposal sites.

On cross-examination, Evenhouse stated that Garden City did not service all of the waste needs in the area, but he was unable to testify as to the percentage of waste Garden City did handle within the service area. He also acknowledged that the application for site location approval did not include an economic analysis of the proposal.

Evenhouse testified further that the waste collected by Garden City was taken to various landfills and waste transfer stations including those located at Hooker Street in Chicago, Lake landfill in North-brook, the Groot transfer station, Congress Development landfill, Mallard Lake, and Woodland and Settlers Hills. Evenhouse was unable to testify as to the amount of waste that was being transported to the Lake landfill, but acknowledged that Lake landfill had obtained a three-year extension of its operations. He could not state the projected life of the Congress Development landfill, and although he testified that his facility had imposed quotas limiting the amount of waste it would accept from Garden City, Evenhouse did not know the maximum number of loads it would accept. He also stated that his information regarding the projected closing of the Mallard Lake landfill in 1993 was derived from newspaper articles and that the Mallard Lake landfill had never refused to accept waste from Garden City.

Evenhouse also testified that the Mallard Lake landfill was about eight miles from Garden City and that the Congress Development facility was about four miles away. Evenhouse indicated that these were reasonable distances to drive a collection truck to unload. He testified that he hoped the construction of the transfer station would improve the efficiency of Garden City’s operations by allowing for the elimination of some of its collection trucks, and he stressed the importance of recycling waste. Evenhouse stated that the proposed transfer station was designed to accommodate a maximum of 12 loads per day, but acknowledged that the application for site approval did not limit Garden City to 12 loads per day. He also indicated that Garden City could initiate recycling operations on this site without obtaining approval from the Village.

The Village denied the application for site approval, finding that Waste Management had not established that the waste transfer station was necessary or that the impact on existing traffic flow would be minimal. (Ill. Rev. Stat. 1987, ch. 111½, pars. 1039.2(a)(i), (vi).) Thereafter, Waste Management filed its petition for review with the PCB. (Ill. Rev. Stat. 1987, ch. 111½, par. 1040.1(a).) Several months later, the PCB issued an order affirming the denial by the Village of the application for local site approval for the waste transfer station. In a subsequent opinion, the PCB upheld the Village’s denial of site approval on the basis that Waste Management had not established that the transfer station was necessary to accommodate the waste needs of the area it was intended to serve.

Upon denial of its motion for reconsideration by the PCB, Waste Management filed the present petition for review with this court.

The Village found that Waste Management had failed to establish that the waste transfer station was necessary, and the PCB affirmed that finding. The role of a reviewing court on administrative review is limited to a determination of whether the administrative agency’s decision was contrary to the manifest weight of the evidence. McHenry County Landfill, Inc. v. Environmental Protection Agency (1987), 154 Ill. App. 3d 89,100, 506 N.E.2d 372, 379.

Section 39.2(a)(i) of the Act provides that the Village shall approve the site location suitability for a new regional pollution control facility only where the facility is necessary to accommodate the waste needs of the area it is intended to serve. Ill. Rev. Stat. 1987, ch. 111½, par. 1039.2(a)(i); Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill. App. 3d 1023, 1031, 530 N.E.2d 682, 689; Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 123 Ill. App. 3d 1075, 1083-84, 463 N.E.2d 969, 976.

Although a petitioner need not show absolute necessity, it must demonstrate that the new facility would be expedient as well as reasonably convenient. (Clutts v. Beasley (1989), 185 Ill. App. 3d 543, 546, 541 N.E.2d 844, 845; A.R.F. Landfill, Inc. v. Pollution Control Board (1988), 174 Ill. App. 3d 82, 91, 528 N.E.2d 390, 396; Waste Management of Illinois, Inc., 123 Ill. App. 3d at 1084.) The petition must show that the landfill is reasonably required by the waste needs of the area, including consideration of its waste production and disposal capabilities. Waste Management of Illinois, Inc., 175 Ill. App. 3d at 1031; A.R.F. Landfill, 174 Ill. App. 3d at 91; Waste Management of Illinois, Inc., 123 Ill. App. 3d at 1084.

The evidence offered by Waste Management to establish the necessity of the waste transfer station consisted of the testimony of Edward Evenhouse, the general manager of Garden City. Although Evenhouse concluded that the waste transfer station was necessary, he acknowledged that Garden City did not service all of the waste needs in the area and that he was unable to testify as to the percentage of waste Garden City did handle within the service area. He also stated that the application for site location approval did not include an economic analysis of the proposal.

In addition, Evenhouse stated that Lake landfill had received a three-year extension of its operations, but could not testify as to the projected life of the Congress Development landfill. Evenhouse was also unable to state the maximum number of loads Congress Development would accept from Garden City. He further admitted that his information regarding the projected closing of the Mallard Lake landfill in 1993 was derived from newspaper articles and that the Mallard Lake landfill had never refused to accept waste from Garden City.

Evenhouse testified that although Mallard Lake and Congress Development landfills were located within reasonable distances from Garden City, he hoped the construction of the proposed transfer station would improve the efficiency of Garden City’s operations by allowing for the elimination of some of its collection trucks. Evenhouse stressed the importance of recycling, but acknowledged that Garden City did not require approval from the Village for recycling operations.

We find that improvement in the efficiency of Garden City’s operations by elimination of some collection trucks is inadequate to meet the statutory requirement of necessity. Thus, the evidence presented by Waste Management was insufficient to show that the waste transfer station was reasonably required by the waste needs of the area and did not adequately address the waste production and disposal capabilities in the service area. Based upon the record before us, we hold that the Village’s decision, affirmed by the PCB, as to the necessity of the waste transfer station was not against the manifest weight of the evidence.

For the foregoing reasons, the order of the PCB is affirmed.

Order affirmed.

EGAN, P.J., and RAKOWSKI, J., concur.


author: PRESIDING JUSTICE McNULTY

text:
    INSTITUTE OF LONDON UNDERWRITERS, Plaintiff-Appellant, v. HARTFORD FIRE INSURANCE COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 1—90—3510
    Opinion filed August 28, 1992.

      Lord, Bissell & Brook, of Chicago (C. Roy Peterson, Hugh C. Griffin, and Nancy Shaw, of counsel), for appellant.
    Kiesler & Berman, of Chicago (Robert L. Kiesler and Jeanne M. Zeiger, of counsel), for appellee.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

A declaratory judgment action was filed by plaintiff Institute of London Underwriters (the Institute) against defendant Hartford Fire Insurance Company (Hartford), seeking a judicial declaration that Hartford was obligated to pay a 50% share of an accident settlement procured by the Institute involving a claim against The Great Lakes Towing Company (Great Lakes) within the coverage of each insurance company’s policy. The trial court denied the Institute’s request for relief and granted summary judgment to Hartford on the issue of Hartford’s obligation to contribute to the settlement and this appeal ensued.

The undisputed facts disclose that Hartford provided comprehensive liability insurance to Great Lakes. Great Lakes employed Thatcher Engineering Corporation (Thatcher) to perform repairs on a damaged dockwall on Great Lakes’ premises. The agreement between Thatcher and Great Lakes required Thatcher to have Great Lakes named as an additional insured on Thatcher’s liability insurance policy for personal injuries or death arising out of this construction project. Accordingly, Thatcher caused its liability insurer, the Institute, to issue a certificate of insurance naming Great Lakes as an additional insured on Thatcher’s insurance policy with respect to the project. Hartford’s policy contained an “other insurance” clause which required Hartford to contribute equally to any loss covered by another primary insurer, but the Institute’s policy contained no such clause.

In August 1987, Gail Garcia, individually and as personal representative and administrator of the estate of Richard Allen Garcia, deceased, filed an action against Great Lakes in the United States District Court for the Northern District of Illinois, Eastern Division. This action alleged that on August 12, 1987, Richard Allen Garcia, while employed by Thatcher on the project for Great Lakes, sustained injuries resulting in his death.

Great Lakes tendered the defense of this action to Thatcher requesting Thatcher to provide Great Lakes with assurances that any liability of Great Lakes would be covered by Thatcher’s underwriter. Great Lakes also notified Hartford of the Garcia action.

On September 2, 1987, the Garcia action was dismissed without prejudice and Great Lakes’ president informed Hartford of this by letter dated October 7, 1987. In that letter Great Lakes’ president noted that the litigation could be recommenced, that Great Lakes had no involvement in the accident and indicated that the Institute had the primary duty to defend Great Lakes in any subsequent litigation.

On February 17, 1988, Great Lakes received a letter from attorney C. Roy Peterson (Peterson) advising Great Lakes that a new action had been filed in the United States District Court for the Northern District of Illinois with respect to the death of Richard Allen Garcia. It advised Great Lakes that Peterson would file an answer denying liability pursuant to the Institute policy. Peterson further advised Great Lakes that since the damage claim of $10 million exceeded the primary and excess coverage limits of the Institute policy, Great Lakes should notify its excess carrier of the suit.

Because of Peterson’s advice, Great Lakes notified Hartford by letter dated February 19, 1988, of the new action, enclosed a copy of the pleading and advised Hartford that the matter had been forwarded to Peterson who was representing Great Lakes under the agreement with Thatcher.

On or about January 13, 1989, Janice Nowacki, an employee of Hartford, called Peterson, the attorney hired by the Institute to represent Great Lakes in the Garcia case. Nowacki advised Peterson that Hartford also insured Great Lakes, had opened a file on the Garcia case and wanted to know its status. It is undisputed that Great Lakes never requested Hartford to defend or indemnify it with respect to the Garcia action.

On February 19, 1989, the United States District Court approved a $75,000 settlement of the Garcia case and the case was dismissed with prejudice. By letters dated March 3, 1989, March 29, 1989, and April 10, 1989, Peterson wrote to Hartford requesting it to contribute half of the settlement. Great Lakes did not ask, instruct or authorize Peterson to send these letters on Great Lakes’ behalf. The record reflects that Joel Koslen, the vice-president of Great Lakes, in a telephone conversation with Peterson told him Hartford should not contribute to the settlement. In addition, in April 1988, Koslen told Janice Nowacki, the adjuster for Hartford, in a telephone conversation regarding settlement of the Garcia action, that it did not want the Hartford policy to respond to the Garcia accident, but rather that Thatcher and its insurers should pay the indemnification and defense costs for this matter. When Hartford followed these instructions and declined to contribute, this litigation resulted.

The issue presented for review is as follows: where two insurance policies potentially apply to a loss, may an insured elect which of its insurers is to defend and indemnify the claim by tendering its defense to one insurer and not the other and thereby foreclose the settling insurer from obtaining contribution from the nonsettling insurer? The trial court found that it could. This is a question of first impression. For the following reasons, we affirm.

The Institute in requesting Hartford to contribute half of the cost of settling the Garcia claim argues that the doctrine of equitable contribution permits one who has paid the entire loss to be reimbursed from other insurers who are also liable for the loss. (Pekin Insurance Co. v. Cincinnati Insurance Co. (1987), 157 Ill. App. 3d 404, 406, 510 N.E.2d 524, 526; Zurich Insurance Co. v. Raymark Industries, Inc. (1986), 145 Ill. App. 3d 175, 197, 494 N.E.2d 634, 648; Royal Globe Insurance Co. v. Aetna Insurance Co. (1980), 82 Ill. App. 3d 1003, 1005, 403 N.E.2d 680, 682.) This rule is applied in cases where one insurer has paid a debt equally owed by other insurers. Royal Globe, 82 Ill. App. 3d at 1005, 403 N.E.2d at 682.

However, Hartford contends that equitable contribution does not apply to this case because it is not equally liable for the loss as the Garcia claim was never tendered to it nor was it ever requested by its insured, Great Lakes, to defend or indemnify the claim.

An insurer’s obligations under an insurance contract are ordinarily triggered when the insured or someone’s action on the insured’s behalf tenders the defense of an action potentially within the policy coverage. International Insurance Co. v. Indiana Insurance Co. (N.D. Ill. 1990), No. 87 — C—4896 (International); Hartford Accident & Indemnity Co. v. Gulf Insurance Co. (7th Cir. 1985), 776 F.2d 1380; Solo Cup Co. v. Federal Insurance Co. (7th Cir. 1980), 619 F.2d 1178, 1183.

In the case at bar the insured, Great Lakes, did not tender a defense of the Garcia claim to Hartford or ask Hartford to provide indemnification for it. Instead, Great Lakes notified Hartford of the claim but unequivocally stated that Hartford should not respond to the loss, but that the Institute was to provide the defense and indemnification for it under the Thatcher policy.

We recognize that the Garcia claim came within the coverage of both the Institute and the Hartford policies and that the Institute settled the case and paid the loss. However, it is our view that the meager case authority in existence relevant to the issue presented by the factual scenario at bar supports Hartford’s contention that the doctrine of equitable contribution does not apply.

The only court of review to consider a fact situation similar to that of this case is Hartford Accident & Indemnity Co. v. Gulf Insurance Co. (7th Cir. 1985), 776 F.2d 1380. In that case the City of Peoria carried liability insurance with Hartford and was also named as an additional insured on the Peoria Park District’s policy with Gulf. An accident occurred potentially within the coverage of both policies. The city did not tender the claim to Gulf but, rather, tendered the claim to Hartford, its own primary carrier. However, Gulf had received notice of the claim from the park district within a month after the lawsuit involving the claim was filed. Ten months later Hartford’s attorney wrote Gulf’s attorney a letter asking Gulf to assume the city’s defense. Gulf refused. Hartford settled the claim on behalf of the city and then sued Gulf for Hartford’s costs and expenses, including attorney fees, on the ground that Gulf was estopped to assert policy defenses to coverage for its wrongful refusal to defend a claim tendered to it on behalf of the city that was potentially within Gulf’s policy coverage. The trial court found in favor of Hartford, but that decision was reversed on appeal.

The United States Court of Appeals for the Seventh Circuit found that tender of the defense was required to trigger Gulf’s liability to defend the claim and was not satisfied merely because Gulf was aware of the suit from the outset, stating:

“While we need not decide what the appropriate procedure for tender, if any, should be for unschooled laymen (who may be excused from any sort of active tender), clearly tender by a sophisticated city requires something more than a letter from a rival insurance company 10 months after the process of litigation has begun.
*** Mere knowledge that an insured is sued does not constitute tender of a claim. What is required is knowledge that the suit is potentially within the policy’s coverage coupled with knowledge that the insurer’s assistance is desired. [Citation.] An insurance company is not required to intermeddle officiously where its services have not been requested.” (Emphasis added.) (Hartford Accident, 776 F.2d at 1383.)

As stated in Hartford Accident, the fact that Hartford in the present case knew about the Garcia claim from the outset does not constitute a tender of the claim. Great Lakes never sought Hartford’s assistance regarding the claim, and when an adjustor from Hartford discussed settlement of the claim with Great Lakes’ vice-president, he told the adjuster that Great Lakes did not want the Hartford policy to respond to this action. To ignore its insured’s request would have required Hartford to become an “intermeddler in the contests of others.” Oda v. Highway Insurance Co. (1963), 44 Ill. App. 2d 235, 253, 194 N.E.2d 489, 499.

In Hartford v. Gulf, the court found the tender of the claim by Hartford to Gulf insufficient because no official of the insured had ever requested a defense from Gulf. Instead, an attorney for coin-surer Hartford tendered the defense to Gulf 10 months after the litigation began. Similarly, in the case before us, the tender letters written by Peterson contained no indication that the attorney was acting at the request of the insured or carrying out the wishes of the insured. As the court observed in Hartford Accident, Hartford’s authority to represent the insured in the underlying action was “not necessarily the authority to transfer the lawsuit to another insurance company and another attorney.” (Hartford Accident, 776 F.2d at 1383 n.3.) In this case, no official of Great Lakes ever asked Hartford to defend or indemnify on behalf of Great Lakes. Rather, Hartford was instructed by its insured not to do so. In fact, the request for indemnification came from an attorney defending Great Lakes under the Institute’s policy. The Institute concedes that Great Lakes did not ask Peterson to send the tender letters. Following the reasoning set forth in Hartford Accident, the request for contribution by an attorney for the Institute, a rival insurance company, 14 months after the Garcia litigation had commenced is not sufficient to trigger Hartford’s obligation to contribute where Hartford’s insured never asked it to defend or indemnify. Even in a subsequent appeal of Hartford Accident, the seventh circuit noted that its previous decision had found “as a matter of Illinois law” that the underlying complaint set forth allegations that brought the claim within the risks covered by the coinsurers’ (Gulf’s) policy. (Hartford Accident & Indemnity Co. v. Gulf Insurance Co. (7th Cir. 1988),. 837 F.2d 767, 775.) Nonetheless, it again remanded that case, stating: “the trial shall be limited to the issue of whether the City gave Gulf an opportunity to defend, and in particular whether the City adequately tendered its defense to Gulf.” Hartford, Accident, 837 F.2d at 775.

The reasoning set forth in Hartford Accident was followed in the unpublished opinion of a Federal district court sitting in Illinois in International Insurance Co. v. Indiana Insurance Co. (N.D. Ill. 1990), No. 87 — C—4896. The court ruled that although an insurer normally would have had a duty to contribute to a settlement, its duty was excused by the insured’s failure to tender its defense. It stated:

“The only requests for Indiana’s participation came from International [Insurance Co.] rather than from the Board [the insured], and the first request came over three years after the suit was filed. Moreover, when it was finally contacted, Indiana was only asked to contribute to a settlement rather than to defend the suit *** because no adequate tender of the defense of the Scott suit was made to Indiana, Indiana did not breach any duty to defend this litigation.”

Therefore, Indiana was not estopped from asserting defenses to coverage.

In the case before us the only request for Hartford’s participation came from the Institute, not the insured, 14 months after the Garcia lawsuit was filed. As was the case in International, Hartford was asked only to contribute to a settlement, not defend the suit. Therefore, in this case, as in International, the insured’s refusal or failure to tender the defense of the action to Hartford excused Hartford’s duty to perform under its policy or to contribute to a settlement procured by a coinsurer.

Although there is no case law from Illinois State courts addressing the issue raised in this case, our research discloses no authority to indicate that Hartford Accident, Solo Cup and International are incorrect in the assertion that Illinois law requires a tender of defense by a sophisticated insured to an insurer before the insurer is required to defend or indemnify a claim.

In Long v. Great Central Insurance Co. (1989), 190 Ill. App. 3d 159, 546 N.E.2d 739, an Illinois reviewing court considered an argument based upon Hartford Accident that an insured had not properly tendered its defense to the insurer. The court accepted the ruling in Hartford Accident as an accurate statement of Illinois law, but observed that the record disclosed that Long, the insured, was an unschooled layman who was not required to make an active tender to the insured.

In Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 514 N.E.2d 150, the Illinois Supreme Court ruled that a defending insurer which had exhausted its policy limits was no longer obligated to defend the insured and in that event the insured must tender the case to another carrier. Although the adequacy of tender was not at issue in Zurich, the clear import of this language is that a sophisticated insured must tender a defense of claim to an insurer before the insurer is obliged to perform its obligations under the policy.

The Institute’s argument that the “other insurance” clause of Hartford’s policy requires Hartford to contribute to the settlement suffers from the same infirmity as its argument for application of the equitable contribution doctrine, in that any liabilities arising under this clause are not triggered until the insurer becomes obligated to pay or defend.

In Zurich, the appellate court stated:

“Only when a policy is triggered and the insurer becomes obligated to pay ‘all sums’ and to defend ‘any suit’ does the ‘other insurance’ clause come into play to allow liability to be apportioned among the insurers.” (Zurich, 145 Ill. App. 3d at 200.)

Therefore, if the policy is never triggered, the issue of liability under the “other insurance” clause does not arise. Furthermore, to allow the Institute to claim benefits under the “other insurance” clause of Hartford’s policy would be to elevate its status to that of a third-party beneficiary of Hartford’s contract with the insured. (See discussion later in this opinion.)

Although the issue of contribution between the various insurers was not before the reviewing court in Zurich due to a reservation of this ruling by the trial court, the reviewing court made the above-quoted observation and further noted that the “other insurance” provisions have no bearing on the question of the insurer’s duty to provide a defense and indemnification to the insured. (Zurich, 145 Ill. App. 3d at 200.) The Illinois Supreme Court affirmed, accepting the proposition that between the insurer and the insured, “each carrier whose policy is triggered is jointly and severally liable for the total indemnity and defense costs of a claim [up to the policy limits] without proration.” (Emphasis added.) Zurich, 118 Ill. 2d at 56.

The Institute relies on Radovanov v. Land Title Co. of America, Inc. (1989), 189 Ill. App. 3d 433, 545 N.E.2d 351, to support its argument that this court should liberally construe an insurance contract so as not to deprive an insured of coverage for which he has paid. However, in Radovanov, the insured was suing for coverage. In this case Great Lakes told the Institute and Hartford that Hartford should not contribute to the settlement and still contends that its Hartford policy should not respond to the Garcia settlement.

Moreover, the rights of third-party claimants are not involved in this case. The debt to the third-party claimant has already been satisfied and is prerequisite to the right of bringing an action for equitable contribution. Providence Washington Insurance Co. v. American Bridge Division of United States Steel Corp. (1990), 200 Ill. App. 3d 597, 558 N.E.2d 396.

The Institute argues that the doctrine of equitable contribution has nothing to do with the wishes of the insured. That statement may be correct in abstract principle. However, the insured’s actions after a loss may foreclose his right to coverage under a policy and, thus, defeat a claim for equitable contribution by another insurance carrier. See Del Grosso v. Casualty Insurance Co. (1988), 170 Ill. App. 3d 1098, 524 N.E.2d 1042 (failure of a corporate insured to give notice of an action to his insurer was a defense to coverage under that policy, and, accordingly, a coinsurer which had settled the underlying action could not obtain reimbursement from the other carrier). International Insurance Co. v. Indiana Insurance Co. (N.D. Ill. 1990), No. 87 — C—4896; Hartford Accident & Indemnity Co. v. Gulf Insurance Co. (7th Cir. 1985), 776 F.2d 1380.

The doctrine of equitable contribution, although it does not arise by way of subrogation, is closely related to the rights of the insured under the policy because there can be no contribution where a loss is not equally owed by both insurers. See Del Grosso, 170 Ill. App. 3d 1098, 524 N.E.2d 1042; Royal Globe Insurance Co. v. Aetna Insurance Co. (1980), 82 Ill. App. 3d 1003, 403 N.E.2d 680.

On the facts of this case it cannot be said that the insured’s actions were arbitrary, whimsical or vindictive. Great Lakes had bargained with Thatcher to be an additional insured in its liability policy for the construction project Thatcher was to perform on Great Lakes’ premises. Great Lakes did not tender its defense to Hartford because it concluded it was not responsible for the accident resulting in the death of Thatcher’s employee, Garcia, and that Thatcher’s insurer, the Institute, was the appropriate carrier to respond to the Garcia claim. Great Lakes may well have feared that if the loss were attributed to its policy with Hartford the result might be a rise in premiums or cancellation of its policy. This factor alone suggests the insured ought to have the right to seek or not to seek an insurer’s participation in a claim as the insured chooses when more than one carrier’s policy covers the loss.

If the doctrine of equitable contribution is applied to the facts of this case to allow the Institute to recover from Hartford for a claim never tendered by the insured and in which the insured has directed it not to participate, the insurance policy becomes, in effect, a third-party beneficiary contract entered into by the insured for the direct benefit of other carriers. This result is not what Great Lakes intended in purchasing coverage from Hartford. Great Lakes has taken the position that the loss should not be attributed to the Hartford policy. Moreover, there is nothing in the Hartford policy that shows it was made for the direct benefit of other insurance carriers. (See Sabath v. Mansfield (1978), 60 Ill. App. 3d 1008, 1016, 377 N.E.2d 161, 169 (for a person to claim as a third-party beneficiary, the contract must clearly show it was made for his direct benefit).) The Institute cites the case of Zurich-American Insurance Cos. v. Atlantic Mutual Insurance Cos. (1988), 139 A.D.2d 379, 531 N.Y.S.2d 911, in support of its argument that the doctrine of equitable contribution arises when one carrier pays a loss covered by another carrier’s policy regardless of whether or not the insured has tendered the defense to the other carrier. In Zurich-American, the defendant Atlantic Insurance Company did not raise the issue of the insured’s failure to tender the defense. Nor was it a case in which an insured elected which of two applicable policies should cover the loss. The insureds denied facts in their answer to the underlying action which would have brought them within the coverage of the coinsurer’s policy. Further, Zurich-American involved only the question of whether a coinsurer was obligated to defend an underlying action. Therefore, it was not an equitable contribution action as permitted under Illinois law because the latter requires an insurer to pay the settlement or judgment of the underlying action before seeking equitable contribution for defense costs from a coinsurer. Providence Washington Insurance Co. v. American Bridge Division of United States Steel Corp. (1990), 200 Ill. App. 3d 597, 558 N.E.2d 306.

The majority of the court in Zurich-American did make the following statement:

“The dissent places great reliance on the absence of a request by Bents and Lorenz of Atlantic for a defense. This argument *** is irrelevant. *** [N]o such request is required to trigger Zurich’s rights to reimbursement of Atlantic’s share of the defense costs.” Zurich-American, 139 A.D.2d at 387, 531 N.Y.S.2d at 916.

If this represents an accurate statement of New York law on the issue of tender, under Illinois law, as previously stated, a sophisticated insured must tender the claim to the insurer before that insurer must perform its obligations under the contract. See International, No. 87 — C—4896; Solo Cup, 619 F.2d 1178; Hartford Accident, 776 F.2d 1380; Long, 190 Ill. App. 3d 159, 546 N.E.2d 739; Zurich, 118 Ill. 2d 23, 514 N.E.2d 150.

The Institute finally argues that to allow an insured to elect which insurer is to respond to a claim by tendering a defense to one and not the other will penalize responsible insurers who honor their obligation to defend and settle claims. However, in this case, Hartford has not defaulted on any obligation to its insured. The insured never tendered defense of the Garcia claim to Hartford. When the Institute asked for contribution from Hartford, Hartford contacted the insured, Great Lakes, to ascertain its wishes. The insured told Hartford not to contribute to the settlement as the settlement should be paid by the Institute. The contract between Hartford and Great Lakes does not require Hartford to reimburse the Institute against the wishes of its insured.

Finally, we do not believe that our holding in favor of Hartford will punish a responsible insurer or discourage insurers to settle claims until all coinsurers first agree to pay their pro rata share. The law already places a duty on an insurer to accept a defense and expeditiously handle a properly tendered claim which is covered. Contribution is a creature of equity. Under the circumstances of this case, it would be inequitable to require an insurer to reimburse another carrier for a claim it has no obligation to pay to its insured and in circumvention of the insured’s wishes with whom it has the contract.

Affirmed.

MURRAY and GORDON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL JACKSON, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—1142
    Opinion filed August 28, 1992.

      Timothy M. Kelly, of Beermann, Swerdlove, Woloshin, Barezky, Becker, Genin & London, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Barbara Jones, and Joseph Alesia, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court: Following a jury trial, defendant, Michael Jackson, was found guilty of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2(a)) and felony murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — l(a)(3)). The trial judge imposed a term of natural life imprisonment for murder and a concurrent natural life term for armed robbery. The deceased, owner of a liquor store, was shot to death on the store premises following an armed robbery in which store employee, Rudolfo Ramirez, was also a victim. (The convictions and sentences of codefendants Samuel Lee and L.C. Jackson have been affirmed for their participation in this offense, Lee in a Rule 23 order (People v. Lee (1st Dist. 1991), No. 88— 2801), and L.C. Jackson also in a Rule 23 order (People v. Jackson (1st Dist. 1992), No. 89 — 0773). This court reversed and remanded the conviction of Michael Green in accordance with Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. People v. Green (1992), 228 Ill. App. 3d 849.)

On appeal, defendant contends that the trial court erred in denying his motion to suppress unreliable identification testimony and allowing the jury to consider irrelevant physical evidence and testimony, and that he was not proved guilty beyond a reasonable doubt.

Defendant filed a motion to suppress identification evidence offered by Ramirez due to the alleged suggestive nature of the identification procedure. At the hearing, Detective John Leonard of the Chicago police department testified that on February 27, 1987, he was assigned to investigate the homicide of the deceased which had occurred on February 5, 1987. Leonard asked Ramirez to come to the police station. Upon his arrival, Leonard and his partner, Jillian McLaughlin, told Ramirez that they had some photographs for him to look at to see if he could recognize anyone. Leonard then placed eight black and white photographs on the desk. Leonard did not inform Ramirez that any of the alleged suspects were among the eight photographs placed before him. Approximately one minute later, Ramirez picked out two photographs of the men who had entered the store, which later were identified as codefendant Green and defendant.

The photograph of defendant that Leonard displayed had the Illinois Department of Corrections sign below the face of defendant, while the other seven photographs had the Chicago police department sign. Leonard was unaware that he had a Chicago police department photograph of defendant in his possession; however, that picture of defendant was taken in 1977. Leonard recognized that the Chicago police department photographs were a different size than the other photograph, so he trimmed and punched holes on the top of the photograph so that all the pictures would be similar. Neither Leonard nor his partner made any suggestion as to which picture Ramirez should identify.

Ramirez testified at the hearing that the police telephoned him and asked him to come to the station to make an identification of the man who had murdered his partner. The detectives presented 8 to 10 black and white pictures, none of which he had ever previously seen. Ramirez immediately pointed out two photographs and memorized the individuals’ appearance. There was nothing about the way the pictures were cut or the holes punched into them, or anything written on them which affected his identification.

The trial judge found no evidence indicating that the photo identification of defendant was suggestive and denied the motion to suppress.

Defendant attempted to introduce into evidence an affidavit of his brother, L.C. Jackson. In that affidavit, L.C. Jackson stated that defendant was not with him when he participated in the armed robbery, nor did he have any knowledge of that crime. The trial judge refused to admit this evidence and also denied defendant’s motion to exclude testimony concerning a gun and radio seen in the possession of L.C. Jackson.

The following testimony was adduced at trial. The deceased’s wife, Caridad Hernandez, testified that she last saw the deceased when she arrived home from work at 4:30 p.m. on the day of the murder. The deceased then left to go to work at the liquor store. Later that evening, she was informed that something had happened at the liquor store. Hernandez identified her husband’s body at the morgue that evening. Hernandez identified a radio marked with white paint stains and missing knobs as the one her husband kept in the store.

On the evening of the murder, Ramirez, Julio Sandoval and the deceased were working at the liquor store. Ramirez testified through an interpreter that at 8 p.m., four or five customers were present in the store. The last customer who exited the store walked out slowly looking toward the surveillance camera above the door. Sandoval left the store to make a customer delivery, and Ramirez went into the storage room located in the rear of the store.

The deceased activated the buzzer used to notify other employees that a customer had entered the store. Ramirez saw two men, later identified as codefendant Green and defendant, looking at a bottle on the shelf. The men removed a bottle from the shelf and approached the deceased at the cash register. The deceased informed Ramirez that the two men did not have enough money to pay for the bottle. Ramirez retrieved the bottle from the deceased and returned it to the shelf. The two men then decided to make another purchase. Ramirez stood approximately two feet away from defendant and Green. Ramirez made a positive in-court identification of defendant as one of the two men.

Suddenly Ramirez heard one of the men announce that it was a holdup. Defendant threatened to kill Ramirez if he moved. Ramirez heard shots ring out, and the deceased was fatally shot in the neck with a .38 caliber gun.

Ramirez dropped to the floor. Although he had a gun, he was unable to get it out of his pocket to defend himself. Defendant then ordered Ramirez to open the cash register. As he did so Ramirez saw the man wearing a dark hat behind the counter holding a gun with a small barrel. Defendant held a gun that appeared to be a .357 magnum. After opening the register, Ramirez hit the floor again and heard a voice say, “If he looks up, kill him.” After the men left the store, Ramirez noticed that the television set and radio kept in the store were missing.

Two weeks after the murder, Ramirez identified defendant from a photographic array as the man who held a gun to his head, and later identified Green as the man who wore the dark hat. Ramirez also identified the gun that defendant held to his head.

On cross-examination, Ramirez testified that he recalled speaking with two detectives at the store following the attack, but he did not remember telling them that three black males burst into the store and immediately shot the deceased. Ramirez did not see who shot the deceased, but he saw defendant “very well.” According to Ramirez, only one to three minutes elapsed from the time the man who bought the beer left the store until defendant and Green entered.

Patricia Grissom testified for the State that on February 8, 1987, she spoke with the police about the 1974 Oldsmobile she had borrowed from her brother. On the evening of February 5 she allowed Lawrence Brantley, Green, L.C. Jackson, Sammy Lee and defendant to use the car to go to the store. Grissom gave the keys to Brantley, and all five men returned approximately one hour later.

Later that evening, Grissom accompanied Brantley to his sister’s apartment. Over defense objection, Grissom testified that she overheard Lee, Green and L.C. Jackson argue about “splitting up money.” In her grand jury testimony, Grissom stated that defendant had participated in this argument as well.

Officer Michael Cronin testified for the State that he executed a search warrant for a gun on February 11, 1987, at the apartment of Lillian LeFlore. He recovered a pellet gun wrapped in a towel. LeFlore testified that the gun was given to her by L.C. Jackson two days earlier on February 9.

Andre Coleman testified for the State that the police recovered a radio from his apartment on February 18, 1987. Coleman had purchased the radio from L.C. Jackson for two bags of cocaine and $15. Coleman further testified that L.C. Jackson returned a week or two later to sell him a .38 caliber gun, which Coleman took in exchange for another $15 and two bags of cocaine.

Dr. Barry Lifschultz, who performed the autopsy, opined that the deceased died as a result of a gunshot wound to the neck. The parties stipulated that Richard Chenow of the Chicago police crime laboratory would testify that a .38 caliber bullet was taken from the neck of the deceased.

Chicago police detective Mark Sanders testified for defendant that he spoke with Ramirez at the liquor store immediately after the crimes. Ramirez told him that three black males entered the store “very fast,” fired one shot, and forced him to the floor. Sanders interviewed Ramirez approximately 10 days later, and he repeated his first account of the incident.

The jury returned a verdict of not guilty as to the charge of murder, but guilty of two counts of armed robbery and one count of felony murder. Pursuant to the Habitual Criminal Act (Ill. Rev. Stat. 1985, ch. 38, par. 33B — 1 et seq.), defendant was sentenced to natural life in prison.

On appeal, defendant first asserts that the trial court erred in denying his motion to suppress unreliable identification testimony. Defendant contends that Ramirez’s identification of him was unreliable, since he had less than one minute to view the robbers, who entered the store “very fast,” and immediately forced him to the floor. Defendant also points out that Ramirez did not have an opportunity to view the photographs until three weeks after the murder, and that because the “Illinois Department of Corrections” photograph in which defendant was depicted differed from the “Chicago Police Department” photographs, the identification array was impermissibly suggestive.

The prosecution has the burden of proving beyond reasonable doubt the identity of the person who committed the crime. (LI. Rev. Stat. 1987, ch. 38, par. 3 — 1.) An identification will not be deemed sufficient to support a conviction if it is vague or doubtful. (People v. Ash (1984), 102 Ill. 2d 485, 468 N.E.2d 1153; People v. Cullotta (1965), 32 Ill. 2d 502, 207 N.E.2d 502.) A single witness’ identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification. People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355; People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.

In Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375, the Supreme Court enumerated the following circumstances to be considered in evaluating an identification: (1) the opportunity the victim had to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the victim at the identification confrontation; and (5) the length of time between the crime and the identification confrontation. People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317; People v. Cohoon (1984), 104 Ill. 2d 295, 472 N.E.2d 403.

Applying these principles to the present case, we find that the trial court properly allowed Ramirez’s identification testimony into evidence. Ramirez testified that on the night of the murder he saw Green and defendant enter the liquor store and look at merchandise on the shelf. Ramirez stood only two feet away from the pair when they announced the hold-up. Defendant held a gun to Ramirez and threatened to kill him if he moved. Ramirez saw that Green wore a dark hat and carried a small gun, while defendant held a large gun that appeared to resemble a .357 magnum. Defendant and Green then ordered Ramirez to open the cash register. Thus, Ramirez had ample opportunity to view defendant during the commission of the crime, and his degree of attention was sufficiently heightened to provide a credible identification.

We note as well that Ramirez was able to immediately identify defendant from the photographic array that the police displayed to him three weeks after the crime occurred. We are unpersuaded by defendant’s assertion that the identification process was unduly prejudicial to him simply because defendant’s photograph displayed an Hlinois Department of Corrections sign instead of the Chicago police department sign that was present on the other photographs. In an effort to minimize this dissimilarity, Officer Leonard trimmed the photographs and punched holes on top. Leonard testified that neither he nor his partner made any suggestion as to which picture Ramirez should identify. Ramirez also testified that there was nothing about the way the pictures were cut or displayed that affected his identification of defendant and Green. Accordingly, we find that the trial judge correctly ruled that the photo identification of defendant was not suggestive, and thus the motion to suppress was properly denied.

Defendant next contends that L.C. Jackson’s affidavit should have been admitted into evidence because its character falls within the purview of a statement against penal interest. The general rule is that a third party's extrajudicial declarations, not made under oath, that he committed a crime are purely hearsay and are inadmissible, even though they are declarations against interest. (People v. Tate (1981), 87 Ill. 2d 134, 429 N.E.2d 470.) The Supreme Court has relied upon the following four objective indicia of trustworthiness in holding that declarations against penal interest may be admissible: (1) the statement was spontaneous and occurred shortly after the crime; (2) the statement was corroborated by other evidence; (3) the statement was self-incriminating and a declaration against interest; and (4) there was an adequate opportunity for cross-examination of the declarant. (Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038.) In this case, L.C. Jackson’s affidavit was produced almost one year after the crime; was not made under oath; and was not corroborated by other evidence. As such, the affidavit was properly excluded.

Defendant also contends that the trial court erred by allowing the jury to consider irrelevant physical evidence and prejudicial hearsay testimony. Specifically, defendant complains that the State’s introduction of evidence concerning L.C. Jackson’s possession of the radio, the pellet gun and the .38 caliber pistol after the armed robbery was irrelevant and prejudicial to him.

It is well established that under the coconspirator’s exception to the hearsay rule, the acts and declarations of a coconspirator made in furtherance of the conspiracy are admissible against a defendant even when made out of the defendant’s presence. (People v. Saldana (1986), 146 Ill. App. 3d 328, 496 N.E.2d 757; People v. Simpson (1976), 39 Ill. App. 3d 318, 349 N.E.2d 441.) In order to avail itself of the exception, the State is required to establish a prima facie case by independent evidence that two or more persons were engaged in a common plan to accomplish a criminal goal or to reach another end by criminal means. People v. Goodman (1980), 81 Ill. 2d 278, 408 N.E.2d 215.

In the present case, we do not find that the trial court erred in allowing the gun or radio found in L.C. Jackson’s possession into evidence. The evidence concerning the theft of the radio offered by the deceased’s wife and Ramirez effectively tied the other codefendants and defendant to the armed robbery. Coleman testified that L.C. Jackson sold him the radio and a .38 caliber gun following the murder each for $15 and two bags of cocaine. Dr. Lifschultz opined that the deceased died of a gunshot wound to the neck. The ballistics evidence stipulated to by the parties indicated that a .38 caliber bullet was taken from the neck of the deceased. As such, the State met its burden in establishing a prima facie case by presenting sufficient independent evidence to support its admission into evidence.

Defendant further maintains that Grissom was permitted to testify that Lee, Green, and L.C. Jackson were arguing about how they were going to “split the money up” and that these hearsay statements were offered as substantive proof that those who participated in the conversation also participated in the crime. Grissom’s grand jury testimony also included defendant as a participant in that conversation. Defendant cites People v. Harbold (1984), 124 Ill. App. 3d 363, 464 N.E.2d 734, as support for his contention that a statement must be made or adopted by defendant to be introduced as an admission in a criminal trial.

We agree with defendant that such hearsay testimony was improperly admitted. However, we do not find that it rises to the level of reversible error because it deprived defendant of a fair trial. Initially, we note that in Grissom’s trial testimony, she did not identify defendant as a participant in the conversation nor was the statement directly attributed to him. Moreover, any error involved in the admission of hearsay testimony is harmless where the testimony is merely cumulative or is supported by positive identification and other corroborative circumstances. People v. Merideth (1987), 152 Ill. App. 3d 304, 503 N.E.2d 1132; People v. Mosley (1979), 71 Ill. App. 3d 808, 390 N.E.2d 364.

In this case, Ramirez positively identified defendant as one of the attackers in the photographic array and also made an in-court identification. Grissom testified that she lent the car to Lee, L.C. Jackson, Brantley, Green and defendant on the night of the crime and that they returned approximately one hour later. Testimony was also introduced concerning the radio taken and the weapons used in the course of the offense. Thus, we believe that sufficient corroborating evidence was introduced to offset any potential error that may have been made by the improper hearsay testimony.

Finally, defendant asserts that he was not proved guilty beyond a reasonable doubt. In particular, defendant claims that the State failed to present clear identification testimony, and that the circumstantial evidence presented did not lead to a reasonable and moral certainty that the accused and no one else committed the crime.

The critical inquiry on review of a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.) Once defendant has been found guilty of the crime charged, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that, upon judicial review, all of the evidence is to be considered in the light most favorable to the prosecution. (People v. Mig liore (1988), 170 Ill. App. 3d 581, 525 N.E.2d 182.) Upon close review of the record, we find that the State presented sufficient evidence through the positive identification made by Ramirez and other relevant circumstantial evidence to support the jury’s determination.

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

Judgment affirmed.

EGAN, P.J., and RAKOWSKI, J., concur.

       Justice Rosemary LaPorta participated in oral argument prior to her death. Justice Thomas R. Rakowski was substituted on the panel and has listened to the oral argument tape and has read the briefs.