author: JUSTICE LUND

text:
    WINFIELD BATES et al., Plaintiffs-Appellees, v. MERRIMACK MUTUAL FIRE INSURANCE COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—92—0255
    Opinion filed December 17, 1992.
    Rehearing denied January 21,1993.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Frank L. Schneider, Susan Condon, and Jennie R. Lipowich, of counsel), for appellant.

      William B. Lawrence, of Markowitz & Lawrence, of Bloomington, for appellees.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiffs Winfield Bates and Julia Bates brought this action against defendant Merrimack Mutual Fire Insurance Company, seeking recovery under an insurance policy for fire loss. Defendant claimed the policy was cancelled prior to the fire. The jury in the circuit court of McLean County held for plaintiffs, and a judgment in the amount of $16,939 was entered against defendant. The trial court also awarded plaintiffs certain attorney fees and costs relating to out-of-State depositions. Defendant appeals, contending there was sufficient proof of mailing of cancellation notice, and plaintiffs’ failure to receive notice did not avoid the cancellation. Defendant also contends the trial court erred in awarding plaintiffs’ attorney fees and expenses incurred for travel to Massachusetts to obtain evidence depositions of defendant’s employees. We reverse.

Defendant had insured plaintiffs’ property through June 1, 1989. In May 1988, defendant decided to cancel the policy after receiving notice of an increase in hazard due to the poor condition of the property. On May 13, 1988, defendant’s employees prepared a notice of cancellation, effective June 15, 1988, and allegedly mailed this notice the same day by certified mail. Plaintiffs claim this notice was never received. Four days later, on May 17, 1988, defendant sent plaintiffs a “cancellation memo” by regular mail. Plaintiffs received this memo and wrote a note on the envelope to the effect that his policy was being cancelled on June 15, 1988. On June 10, 1988, defendant notified plaintiffs it was refunding the unearned premium on the policy, and plaintiffs received this notice about two days later. Because the return receipt on the original notice of cancellation was never returned to defendant, another “cancellation memo” was sent to plaintiffs on June 18, 1988, three days after the policy had been cancelled. The refund check was mailed on June 28, 1988, and, after they received it, plaintiffs wrote on the envelope that the check was received on July 2, 1988. Plaintiffs’ property was damaged by fire in the early morning of July 2, 1988.

Policy cancellation is controlled by a combination of the policy terms and statutory provisions. The policy introduced into evidence, upon plaintiffs’ motion and without objection (plaintiffs’ exhibit No. 3), provided under paragraph 17(b) in part as follows:

“We may cancel this policy only for the reasons stated in this condition by notifying you in writing of the date cancellation takes effect. This cancellation notice may be delivered to you, or mailed to you at your mailing address shown in the Declarations. Proof of mailing shall be sufficient proof of notice.”

From our examination of the pleadings, it appears that the cancellation clause in plaintiffs’ exhibit No. 3 was inconsistent with defendant’s affirmative defense allegations, which were admitted by plaintiffs. The affirmative defense alleged:

“A. Its policy of insurance provides in part:
17. Cancellation. Subparagraphs b. and c. are deleted and the following substituted.
b. We may cancel this policy as provided in this condition. The cancellation notice, together with our reason for cancellation, will be mailed to you at your last mailing address known by us, and we will obtain a certificate of mailing.”

Defendant’s jury instruction No. 12 (revised) contained the relevant statutory provisions and provided:

“There was in force in the State of Illinois at the time of the occurrence in question a certain Statute, Ill. Rev. Stat. ch. 73, §755.14[,] which provided that:
[‘jNotice of Cancellation. No Notice of Cancellation of any policy of insurance...shall be effective unless mailed by the Company to the named insured, at the last mailing address known by the Company. The Company shall maintain proof of mailing of such notice on a recognized U.S. Post Office form or a form acceptable to the U.S. Post Office.[’]
and a certain Statute, Ill. Rev. Stat. ch. 73, §755.15, which provided that:
[‘]A11 Notices of Cancellation of insurance...must be mailed at least 30 days prior to the effective date of cancellation. All Notices of Cancellation shall include a specific explanation of the reason or reasons for cancellation^’]
If you find that Defendant has complied with the above statutory provisions then you should find for the Defendant and against the Plaintiffs, whether Plaintiffs received the Notice of Cancellation or not.”

Plaintiffs did not object to the last paragraph of this instruction. On page 17 of their brief filed with this court, they state: “Plaintiff agrees that the statute and contract do not require that the policyholder receive the notice of cancellation in order for a cancellation to be effective.”

Courts of this State have held that where the insurance contract provides that “ ‘[t]he mailing of notice as aforesaid, shall be sufficient proof of notice’ ” (or words similar thereto), the mailing terminates the policy regardless of receipt of the notice. (Harms v. Travelers Indemnity Co. (1963), 39 Ill. App. 2d 248, 250, 255-56, 188 N.E.2d 356, 357, 360; see also County of Williamson v. Standard Accident Insurance Co. (1961), 32 Ill. App. 2d 363, 365, 178 N.E.2d 149, 150; Boyle v. Inter Insurance Exchange of the Chicago Motor Club (1948), 335 Ill. App. 386, 388-89, 82 N.E.2d 179, 180; Annot., 64 A.L.R.2d 986-95, 1000, 1002 (1959).) We conclude both parties have agreed that receipt of the May 13, 1988, letter notice by plaintiffs was not necessary to cancel the policy and any position to the contrary is waived.

Plaintiffs contend insufficient evidence of mailing. Proof that a notice was properly filled out, coupled with evidence of an office custom with reference to the mailing of notices, is sufficient to constitute proof of mailing of the notice if there is some proof or corroborating circumstances to establish the fact that custom was followed in a particular case. (Owl Electric Co. v. United States Fidelity and Guaranty Co. (1971), 131 Ill. App. 2d 333, 336-37, 268 N.E.2d 493, 495-96.) Direct evidence of mailing or testimony of the mail clerk who performed the mailing is not necessary, given the routine nature of mailings of such notices, and personnel cannot be expected to remember a certain notice. Evidence of mailing practices is enough. Kolias v. State Farm Mutual Automobile Insurance Co. (1986), 148 Ill. App. 3d 1086, 1091, 500 N.E.2d 502, 505.

Defendant presented evidence of the office procedures and the delivery of letters to a postal employee. The notice in this case was listed on U.S. Post Office form No. 3877, together with three other notices. This form was prepared by defendant and, according to custom, was delivered to a postal employee at the Andover, Massachusetts, post office. Defendant’s copy of the form was stamped “Andover, MA May 13, 1988, USPS,” and the ink-stamped area was initialed. Evidence presented by the defendant sufficiently established preparation of the cancellation notice, preparation of the postal forms, and delivery to and acceptance by the post office.

Plaintiff contends the mailing was defective, pointing out that the post office failed to fill in blanks titled “Total Number of Pieces Received at Post Office” and “POSTMASTER, PER (Name of receiving employee)” on form No. 3877. The failure of the post office to fill in certain blanks on its form No. 3877 does not render the form invalid for our purposes. The fact that it contains the name and address of plaintiffs, and was stamped and initialed by the post office, establishes adequate compliance with the proof-of-notice requirements under section 143.14 of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 755.14). (See Kolias, 148 Ill. App. 3d at 1092, 500 N.E.2d at 506.) We find no evidence contradicting defendant’s specific performance of mailing. Any evidence of nondelivery to the post office was speculation.

Noting the defects in the post office’s preparation of its form No. 3877, plaintiffs argue that proof of defects in the mailing process opens the door to admission of evidence regarding nonreceipt. We disagree. Evidence of nonreceipt, based in part on plaintiffs’ testimony and the absence of a return receipt, was not relevant to the mailing issue. (See Harms, 39 Ill. App. 2d 248, 188 N.E.2d 356.) As we have said, defendant’s responsibility was mailing, not delivery. The failure of delivery, be it caused by the post office or plaintiffs, cannot be charged to defendant. The judgment against defendant must be reversed because of the policy cancellation prior to the fire.

According to the trial judge’s order relative to attorney fees and expenses for the trip to Massachusetts for deposition purposes, plaintiffs would only be reimbursed if successful at trial. As a result of our decision, plaintiffs should not have been successful. Thus, the fee and expense judgment must be vacated.

Judgment for plaintiffs is reversed.

Reversed.

STEIGMANN, P.J., and KNECHT, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARSHALL MITCHELL III, Defendant-Appellant.
    Second District
    No. 2—91—0206
    Opinion filed December 18, 1992.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

A Kane County jury found defendant, Marshall Mitchell III, guilty of attempt (murder) (Ill. Rev. Stat. 1989, ch. 38, pars. 8—4(a), 9—1(a)), unlawful possession of a weapon by a felon (Ill. Rev. Stat. 1989, ch. 38, par. 24—1.1(a)), aggravated assault (Ill. Rev. Stat. 1989, ch. 38, par. 12—2(a)(13)), mob action (Ill. Rev. Stat. 1989, ch. 38, par. 25—1(c)), and reckless conduct (Ill. Rev. Stat. 1989, ch. 38, par. 12—5(a)). Judgment was entered on the attempt (murder) and unlawful possession of a weapon by a felon counts.

Defendant raises four issues on appeal. First, he claims that the State did not adequately prove specific intent, as is needed to convict for attempt (murder). Second, he alleges that his attempt (murder) conviction cannot stand because the guilty verdicts of the jury on that charge and the reckless conduct charge are legally inconsistent. Third, he complains of the trial court’s allowing the State to impeach his cousin with statements made at the hearing on his cousin’s plea of guilty to a weapons charge arising out of the same incident sparking this prosecution. Finally, he alleges that his trial counsel was ineffective for not making an offer of proof as to the bias, interest or motive to testify falsely that would have been shown had counsel been allowed to ask the State’s occurrence witnesses whether and when they filed formal complaints about the shooting.

FACTS

Late in the afternoon on May 3, 1990, defendant and his cousin, Keith Starks, were involved in a street fight with several others in the area of a house on Fremont Street in Elgin, Illinois. Billy Mitchell, the attempt (murder) target, took part in the altercation, during which defendant was hit over the head with a metal folding chair by an unknown assailant, necessitating his removal to a hospital by ambulance.

Later that same evening, Starks was seen walking down Fremont Street, carrying a gun and muttering threats. He met up with defendant and gave defendant the gun. Defendant then yelled a death threat and opened fire in the direction of persons standing in front of the house on Fremont Street. One bullet passed through the house, narrowly missing an infant, while the remaining bullets hit a pickup truck which was parked in the driveway of the house and behind which Billy Mitchell took refuge when the shooting started. So ended the episode giving rise to the charges against defendant. More specific facts will be supplied where called for in the analysis.

INCONSISTENT VERDICTS

We address first defendant’s claim that the jury’s verdict finding him guilty of attempt (murder) is legally inconsistent with its verdict finding him guilty of reckless conduct. We agree. Initially, we note that the issue is not waived despite defendant’s failure to raise it in his post-trial motion. Legally inconsistent verdicts present plain error, which is an exception to the general rule that issues not raised in defendant’s motion for a new trial are waived. People v. Randle (1991), 213 Ill. App. 3d 1082, 1084; 134 Ill. 2d R. 615(a).

The reckless conduct count of the indictment alleged that defendant “endangered the bodily safety of Bess M. Scott and child and Billy Mitchell, in that he, while acting in a reckless manner, discharged a handgun in the area of [the house on Fremont Street], bullets striking a pickup truck and entering [the house on Fremont Street], thereby endangering the bodily safety of Bess M. Scott and child and Billy Mitchell.”

Similarly, the jury instructions on reckless conduct required the jury to convict defendant of reckless conduct if it found that the State proved that he “recklessly performed an act which endangered the bodily safety of Bessie Smith [the same person as Bess M. Scott], her child and Billy Mitchell.”

The attempt (murder) count of the indictment charged that defendant, “with intent to kill Billy Mitchell *** shot at Billy Mitchell with a gun.” The attempt (murder) jury instructions asked the jury to consider whether defendant “performed an act which constituted a substantial step toward the commission of the offense of Murder *** ánd *** did so with intent to commit the offense of Murder.” The instructions elsewhere defined that intent as the intent to kill.

The State attempts to reconcile the jury’s guilty verdicts by claiming on appeal that the jury could have found that the first shot fired by defendant, the shot that entered Bessie Scott’s home, constituted reckless conduct, while the remaining shots, those which hit the truck behind which Billy Mitchell was hiding, constituted attempt (murder). That argument is not persuasive, given the wording of the indictment and the proof at trial. As it stands, the Illinois Supreme Court’s decision in People v. Spears (1986), 112 Ill. 2d 396, is dispositive of this issue.

In Spears, the defendant was found guilty of attempting to murder his wife, armed violence towards his wife, and reckless conduct toward his wife, all based on the same two gunshots. The supreme court affirmed the appellate court’s order of a new trial on all counts, determining that the jury impermissibly found that the defendant acted recklessly, intentionally and knowingly at the same time. Spears states, “where a claim of inconsistent guilty verdicts involves multiple shots or victims, the question is whether the trier of fact could rationally find separable acts accompanied by mental states to support all of the verdicts as legally consistent.” (112 Ill. 2d at 405.) Spears also advises courts considering the question to give special weight to the “substance of the allegations charging the defendant” and “what the evidence showed in relation to those charges.” 112 Ill. 2d at 405.

As mentioned above, the reckless conduct count of the indictment encompasses Ms. Scott, her child, and Billy Mitchell and also encompasses all the shots fired by defendant. Thus, even assuming that the first shot into the house was separate from the volley of shots fired into the truck, the jury, in order to have found defendant guilty of both attempt (murder) and reckless conduct, must have found that he acted both recklessly and with the specific intent to kill Billy Mitchell when he fired the shots that hit the truck. Such a finding is impermissible since the two states of mind are mutually exclusive. Spears, 112 Ill. 2d at 407.

Moreover, neither the State’s proof at trial nor the jury instructions distinguished between defendant’s intent when he fired the shot that entered the house and his intent when he fired the remaining shots into the truck. Although in defendant’s statement to police he stated that he fired the first shot into the air and the remaining shots toward the house, very little was made at trial of any break in the sequence of shots. There was certainly nothing to alert the jury that the State or the defense was claiming different mental states as to different shots.

As the case at bar was presented, the jury could not have rationally found separable acts accompanied by different mental states to support both the attempt (murder) and reckless conduct verdicts as legally consistent. In addition, “[i]t would be manifestly unfair to allow the State, with the benefit of hindsight, to be able to create separable acts on appeal, neither alleged nor proved at trial.” (Spears, 112 Ill. 2d at 405.) The State’s argument fails.

Accordingly, defendant is entitled to reversal of at least his attempt (murder) conviction. The question remains, however, as to the proper course for the weapons charge. Spears states that a defendant convicted pursuant to inconsistent verdicts is entitled to a new trial “on all counts” (112 Ill. 2d at 407). The issue is whether the phrase “on all counts” means on all inconsistent counts or counts related thereto, or on all counts of which defendant was convicted. We believe it is the former.

In Spear's, all of the defendant’s convictions were reversed for a new trial, but each guilty verdict was inconsistent with every other guilty verdict with regard to the same victim. (112 Ill. 2d at 403-07.) Spears’ convictions of attempt (murder), one count of armed violence, and one count of reckless conduct all pertained to the same actions directed at his wife and were all inconsistent. His convictions on the second armed violence and reckless conduct counts were based on actions he took against his wife’s friend and were also inconsistent. There were no other convictions.

Likewise, in People v. Hoffer (1985), 106 Ill. 2d 186, the defendant’s murder, voluntary manslaughter and involuntary manslaughter convictions were all inconsistent, requiring a new trial. The defendant was not convicted of any other crimes.

In the present case, defendant’s conviction of unlawful possession of a weapon by a felon is not inconsistent with his conviction of attempt (murder) or any of the guilty verdicts on the other charges against him. Thus, his conviction of unlawful possession of a weapon by a felon will stand. We find support for our conclusion in People v. Chambers (1991), 219 Ill. App. 3d 470. In Chambers, the defendant was convicted of the armed robbery of a woman outside a currency exchange and the attempt (murder) of a passerby who came to the woman’s aid. The jury also found the defendant guilty of reckless conduct as to the passerby. The inconsistency of the attempt, (murder) and the reckless conduct convictions required reversal as to the offenses committed against the passerby, but not as to the armed robbery conviction for the acts against the woman. Chambers, 219 Ill. App. 3d at 475.

Pursuant to Spears, any new trial may encompass both the attempt (murder) and the reckless conduct charges. The fact that judgment was not entered on the reckless conduct guilty verdict does not prevent retrial on that charge. In Spears, the new trial ordered was to include each charge for which an inconsistent verdict had been returned, regardless of whether judgment had been entered on that charge. Spears, 112 Ill. 2d at 410.

SPECIFIC INTENT

Defendant next challenges the sufficiency of the evidence of specific intent to kill, which the jury was required to have found to convict him of attempt (murder). (People v. Mitchell (1991), 209 Ill. App. 3d 562, 569.) We need to address this claim to avoid a double jeopardy problem. If there was insufficient evidence of specific intent to support the attempt (murder) conviction, then retrial on that charge would violate double jeopardy. People v. Taylor (1979), 76 Ill. 2d 289, 309; People v. O’Neil (1990), 194 Ill. App. 3d 79, 96.

The standard for reviewing a claim of insufficient evidence is whether, viewing the evidence in the light most favorable to the State as the verdict winner, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237.

Absent an admission of intent, intent is most often proved by circumstantial evidence. (People v. Starks (1989), 190 Ill. App. 3d 503.) Circumstances from which an intent to kill may be inferred include the character of an assault and the use of a deadly weapon. Notably, the act of firing a gun at someone supports the conclusion that the person shooting the gun acted with intent to kill the other person. Mitchell, 209 Ill. App. 3d at 569.

In the present case, defendant testified that he was not the shooter, and was not even at the crime scene at the time of the shooting. However, defendant had given a taped statement to police wherein he admitted firing the gun at the time and place in question, but denied that anyone was in the vicinity. He stated that he had merely wanted to scare the people responsible for the beating he had received earlier that day.

Steve Binion, who lived in the house that the first bullet passed through, testified that defendant told Billy Mitchell “you’re dead” and fired a gun at Billy Mitchell. Richard Whaley testified that he was standing across the street from the house on Fremont Street at the time of the shooting and that defendant was the shooter. Billy Mitchell, who hid behind the pickup truck when the shooting started, testified that defendant said “Billy, you bitches are dead,” immediately before he opened fire at him.

The question of whether defendant possessed the intent to kill Billy Mitchell when he fired the gun was for the jury to decide. (Starks, 190 Ill. App. 3d at 510.) Likewise, the jury was to determine questions of witness credibility. (People v. King (1989), 190 Ill. App. 3d 1.) A rational jury could find from the evidence that when defendant fired the gun at Billy Mitchell after making a death threat, he acted with the specific intent to kill. (See People v. Athey (1976), 43 Ill. App. 3d 261.) Defendant’s contentions amounting to a claim that had he actually intended to kill Billy Mitchell, he would have gone about it in a more intelligent and strategic way, are based on mere speculation and do not merit discussion.

IMPEACHMENT

Next, defendant claims that the State should not have been allowed to impeach Keith Starks with statements he had agreed were the truth at the hearing on his plea of guilty to a charge of unlawful possession of a weapon by a felon. Starks’ weapons charge arose out of the same incident forming the basis for the charges in this case. Starks had agreed at his guilty plea hearing that it was true that he had given defendant a gun and that defendant had then begun firing towards Billy Mitchell and the house on Fremont Street.

At defendant’s trial, the State called Keith Starks during its case in chief. Starks claimed he could not remember the shooting and was subsequently declared a hostile witness. (134 Ill. 2d R. 238(b).) The prosecutor then sought to get Starks to admit that he had answered “yes” to the prosecutor’s question, at Starks’ guilty plea hearing, that it was the truth that defendant had shot at Billy Mitchell. The prosecutor had specifically asked Starks at the hearing whether the outlined facts were true, not whether the State would offer evidence of those facts at any trial. The prosecutor had also sought Starks’ agreement at the hearing that the facts concerning defendant’s actions were not part of Starks’ guilty plea.

Defendant alleges that the State’s impeachment efforts violate the rule of People v. Henderson (1981), 95 Ill. App. 3d 291, and People v. Traylor (1990), 201 Ill. App. 3d 86, that a guilty plea does not constitute an admission of facts alleged in an indictment if those facts are not ingredients of the crime charged. In Henderson, a witness at the defendant’s trial, who had pled guilty to charges arising out of the same events serving as the basis for the defendant’s prosecution, testified that the defendant was not the person who had run from the witness’ car when the witness was arrested. The State was then allowed to impeach the witness with the fact that he did not object at his guilty plea hearing to a statement that a police officer would testify at trial that the defendant was the person who ran from the witness’ car. The appellate court found that allowing the impeachment was reversible error. (Henderson, 95 Ill. App. 3d at 294-97.) The court held that the witness’ guilty plea did not “embracje] the collateral matter of his passenger’s identity” and that there was no implied admission by the witness concerning the passenger’s identity. (Henderson, 95 Ill. App. 3d at 296.) The court found the evidence prejudicial since it implied that the witness had previously inculpated Henderson. Henderson, 95 Ill. App. 3d at 297.

Similarly, in Traylor, a witness who had pled guilty to drug charges arising out of a transaction for which the defendant was being prosecuted testified at the defendant’s trial that the defendant was not present at the transaction. On cross-examination, he admitted that he had agreed at his guilty plea hearing that the State’s evidence would be that the defendant was present at the transaction. (Traylor, 201 Ill. App. 3d at 88-89.) The court found that Henderson controlled, and it reversed the defendant’s conviction. Traylor, 201 Ill. App. 3d at 90-91.

Defendant here claims that the prosecutor’s getting Starks to agree that defendant’s firing the gun was “the truth,” rather than just what the State’s evidence would be at trial, and the prosecutor’s seeking Starks’ agreement that “the truth” about defendant’s actions constituted no part of Starks’ plea, was an impermissible attempt to skirt the rule in Henderson. We find that we need not address the issue of whether the prosecutor improperly sought to avoid the rule since any error in allowing the impeachment was harmless.

Evidentiary errors can be deemed harmless if the strength of the properly admitted evidence is such that no fair-minded jury could reasonably have voted to acquit the defendant. (People v. Foster (1987), 119 Ill. 2d 69, 89.) An error does not warrant reversal if it does not appear that the finding of guilt resulted from it or that justice has been denied. (People v. Richardson (1988), 123 Ill. 2d 322, 344.) Moreover, “[t]he determination of harmless error must be analyzed on the particular facts of each case, considering the trial record as a whole.” People v. Redd (1990), 135 Ill. 2d 252, 318.

In Henderson, the State’s case against the defendant was entirely circumstantial. The impeachment testimony was the only testimony, although not the only evidence, implying that the defendant was the person who fled from the witness’ car at the time of the witness’ arrest. (Henderson, 95 Ill. App. 3d at 293.) Likewise, in Traylor, the case came down to a battle of credibility between the witness who claimed that the defendant was not at the transaction, and who was subsequently impeached, and another witness who testified that the defendant was present at the transaction. Traylor, 201 Ill. App. 3d at 90-91.

In the case at bar, Starks was impeached with evidence showing that defendant was the shooter and fired at Billy Mitchell. The evidence elicited from Starks was merely cumulative of testimony given by Steve Binion, Richard Whaley and Billy Mitchell. Defendant himself told police that he fired the gun in the vicinity of the house on Fremont Street. We have previously determined that evidence is sufficient to support the specific intent element of defendant’s attempt (murder) conviction, the only element about which he complains of insufficient evidence. Given the cumulative nature of the evidence supplied by Starks, any error was harmless. See People v. Montague (1986), 149 Ill. App. 3d 332, 346.

INEFFECTIVE ASSISTANCE OF COUNSEL

Finally, defendant contends that he was denied the effective assistance of counsel guaranteed him by the sixth amendment to the United States Constitution. At trial, defense counsel was prevented from questioning several of the State’s witnesses about whether, and when, they filed formal complaints about the shooting. The court ruled that such questions were beyond the scope of direct examination. Defendant claims on appeal that those witnesses were pressured by police into cooperating with the prosecution, that defense counsel’s questions would have shown interest, bias or motive to testify falsely resulting from that pressure, and that defense counsel’s failure to make an offer of proof concerning that alleged bias evidence constitutes ineffective assistance of counsel.

When determining whether a criminal defendant has been denied the effective assistance of counsel, the court must decide whether counsel's performance fell below an objective standard of reasonableness, and whether the defendant was prejudiced thereby. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504.) A court may pretermit discussion of the first prong if no prejudice has been shown by the defendant. (People v. Johnson (1989), 128 Ill. 2d 253, 271.) The State urges us to follow this route.

Defendant’s exact claim could be more clearly stated. From reading his brief it seems that defendant is claiming both that evidence exists that Bessie Scott, Richard Whaley and Billy Mitchell testified falsely at the insistence of the police and that such an inference could have been made by the jury if those witnesses had been questioned regarding the timing of their complaints to the police.

If evidence of police-suborned perjury exists, defendant did not even attempt to present it to the court. Moreover, defense counsel did not ever state such a charge to the trial judge at the hearing on defendant’s motion for a new trial, despite a discussion between the two regarding the impeachment issue. Defense counsel merely said that the fact that Bessie Scott testified for the State after having stated that she would not file a complaint “might” show bias or interest. Defense counsel also said that “pressure was brought to make [the witnesses] come forth.”

We realize that it is defendant’s claim that his trial counsel’s ineffectiveness is the very reason the evidence was never brought to the trial court’s attention. However, defendant’s mere unsubstantiated claim on appeal is insufficient for us to reverse. If evidence of perjury exists, defendant should bring it forward.

If defendant’s argument hinges on a claim that the jury could have inferred bias from evidence that the State’s occurrence witnesses were pressured by the police to cooperate with the prosecution and that he was unconstitutionally denied the chance to have that inference made, then he still does not prevail. In order to show that he was prejudiced by his trial counsel’s failure to make the offer of proof, defendant has to show that the bias evidence should have been admitted and that there is a reasonable probability that its admission would have changed the result of his trial. (See Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) The offer of proof issue does not come into play unless it is determined that the evidence was improperly excluded.

We will therefore assume arguendo that Bessie Scott, Richard Whaley and Billy Mitchell would have testified that the police pressured them into filing complaints and pursuing the prosecution of defendant. We will not assume that the police asked them to testify falsely.

We believe that testimony by Scott, Whaley and Mitchell that the police pressured them into cooperating with the prosecution would not necessarily give rise to the conclusion that they were biased in favor of the State or prejudiced against defendant, much less that they lied for the State. There are many reasons why a witness may not wish to cooperate in a criminal prosecution, and why a victim may not wish to press charges against a perpetrator. In light of the fact that no one was injured in the shooting, Scott, Whaley and Mitchell may have merely wanted to forget about the whole event rather than prolong it and risk further confrontations with defendant or others.

Although the trial court has no discretion to deny a defendant his right to cross-examine to show bias, interest or motive to testify falsely, impeachment evidence cannot be too remote or uncertain. (People v. Triplett (1985), 108 Ill. 2d 463, 475-76.) Here, we believe that evidence that the police pressured the State’s occurrence witnesses into cooperating in the prosecution, without more, does not show interest, bias or motive to testify falsely. Even if the evidence arguably should have been admitted, defendant has not shown prejudice -under the Strickland, test. There is simply too great a leap of logic between evidence that the police have pressured a witness to testify and the conclusion that the witness is biased in favor of or is lying for the State. Absent a showing of prejudice, defendant has not shown ineffective assistance of counsel.

For the reasons stated, we affirm defendant’s conviction of unlawful possession of a weapon by a felon, reverse his conviction of attempt (murder), and remand for a new trial on the attempt (murder) and reckless conduct counts.

Affirmed in part; reversed in part and remanded.

UNVERZAGT and DOYLE, JJ., concur.


author: JUSTICE DOYLE

text:
    THE CITY OF HIGHWOOD et al., Plaintiffs-Appellees, v. JOSEPH D. OBENBERGER, a/k/a J.D. Obenberger, Defendant-Appellant.
    Second District
    Nos. 2—92—0474, 2—92—0768 cons.
    Opinion filed December 18, 1992.

      Joseph D. Obenberger, of Highwood, appellant pro se.

    Diambri & Caravello, of Highwood (Paul P. Diambri and Brian C. Donegan, of counsel), for appellees.
   JUSTICE DOYLE

delivered the opinion of the court;

Defendant, J.D. Obenberger, former alderman of the City of Highwood, Illinois, appeals from the order of the circuit court of Lake County denying, inter alia, his motion to vacate an agreed order granting plaintiffs’, City of Highwood and Mayor Fidel Ghini’s, request for declaratory relief. Defendant’s fundamental appellate contention is that the trial court was without subject matter jurisdiction to grant a temporary restraining order and subsequently enter an agreed order pursuant to plaintiffs’ complaint for declaratory and injunctive relief because plaintiffs’ sole and exclusive remedy at law was quo warranto.

Plaintiffs’ “Complaint in Chancery” alleged that on March 3, 1992, defendant, at a regularly scheduled meeting of the Highwood city council, orally tendered his resignation from his position as chairman of the license committee. The complaint further alleged that during the course of the meeting defendant delivered a typed and signed letter of resignation to Alderman Powers. A copy of the letter, attached as an exhibit to the complaint, reads as follows:

“TO THE MAYOR AND CITY COUNCIL OF HIGHWOOD, ILLINOIS
3 February [sic] 1992
I hereby resign unconditionally as Alderman of the Fourth Ward of the City of Highwood, effective immediately.
Sincerely,
Is/ J.D. Obenberger
J.D. Obenberger”

Attached to the letter, or handwritten on the letter itself, was an additional message stating:

“Please Convey immediately to the Mayor. This is simply not worth the anguish, insult, and degradation at the hands of those I have only [unintelligible].”

The following day Alderman Powers delivered defendant’s resignation letter to the mayor, and the mayor accepted defendant’s letter of resignation.

On March 6, 1992, defendant met with the mayor and various city officials to express his desire to withdraw his resignation. According to the complaint, which is consistent with defendant’s statement of facts, defendant considered his earlier letter of resignation to be of no effect. Defendant also delivered a signed, handwritten note addressed to the mayor and the city council which purports to withdraw his “inchoate and undelivered” resignation. Defendant’s note states the letter of resignation was delivered “to the mayor alone” contrary to his directions and without his permission, consent or knowledge; as a result, defendant considered his letter of resignation as “nullified.”

On March 9, 1992, plaintiffs filed a “Complaint in Chancery” seeking a declaration that the position of alderman of the fourth ward was vacant and enjoining defendant from holding himself out as alderman of the fourth ward. Following a hearing on the same day, the circuit court entered an order temporarily restraining defendant from holding himself out as an alderman.

The following day, March 10, 1992, the parties entered into, and the trial court approved, an agreed order which states, in part:

“8. That the Defendant, JOSEPH D. OBENBERGER a/k/a J.D. OBENBERGER, did effectively tender his written unconditional resignation.
9. That said resignation was received by the Mayor of the City of Highwood on March 4, 1992, and receipt of said resignation did complete the resignation process, thereby makes said resignation irrevocable,
* * *
IT IS THEREFORE ORDERED, ADJUDGED and DECREED:
* * *
B) That the position of Alderman of the Fourth (4th) Ward of the City of Highwood previously occupied by Defendant, JOSEPH D. OBENBERGER a/k/a J.D. OBENBERGER, is vacant and may be filled pursuant to statute.”

Approximately three weeks later, on April 1, 1992, defendant moved to dissolve the temporary restraining order, vacate the agreed order and to dismiss plaintiffs’ cause for lack of subject matter jurisdiction. Defendant argued, as he now does on appeal, that the sole and exclusive remedy at law by which to try the title to public elective office is quo warranto and, therefore, the circuit court was without subject matter jurisdiction to enter the order agreed to by the parties. Following a hearing on April 19, 1992, the trial court denied defendant’s motion. On April 20, 1992, defendant filed his first notice of appeal. On May 1, 1992, defendant filed a second notice of appeal.

On May 15, 1992, plaintiffs filed a petition for sanctions pursuant to Supreme Court Rule 137 (see 134 Ill. 2d R. 137). During the pendency of the petition for sanctions, plaintiffs, on June 12, 1992, filed a motion to dismiss defendant’s appeal for lack of appellate jurisdiction. On June 17, 1992, plaintiffs’ petition for sanctions was denied. On June 26, 1992, defendant filed an additional notice of appeal.

During the pendency of this appeal, the parties have filed a litany of motions, objections thereto and responses which we ordered taken with the case. Additionally, defendant has filed a “Petition for an Order in the Nature of a Writ of Certiorari” and a “Complaint in Mandamus.” Both of these were also ordered taken with the case. Prior to reaching the merits of the appeal, we will briefly address the motions and other actions filed with this court.

Plaintiffs have presented two motions to dismiss for lack of appellate jurisdiction. In their first motion, plaintiffs contend that their filing of a petition for sanctions subsequent to defendant’s April 20, 1992, notice of appeal precluded the invocation of appellate jurisdiction. Defendant contends that the notice of appeal filed on April 20, 1992, and an amended notice of appeal filed on May 1, 1992, were sufficient to vest this court with jurisdiction. Defendant also contends that plaintiffs’ submission to the appellate process estops them from later challenging appellate jurisdiction.

An appellate court is under a duty to consider its jurisdiction and to dismiss an appeal if jurisdiction is lacking. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440; Gilkey v. Scholl (1992), 229 Ill. App. 3d 989, 992.) It cannot be conferred by agreement of the parties (E.J. De Paoli Co. v. Novus, Inc. (1987), 156 Ill. App. 3d 796, 798), nor may the failure to file a timely notice of appeal be waived by the parties. Johnson v. Coleman (1977), 47 Ill. App. 3d 671, 674.

In Marsh v. Evangelical Covenant Church (1990), 138 Ill. 2d 458, the trial court entered judgment in the defendant's favor, and 29 days later, the plaintiffs filed a notice of appeal. On the same day plaintiffs filed their notice, defendant filed a motion for sanctions pursuant to section 2—611 of the Code of Civil Procedure (see Ill. Rev. Stat. 1987, ch. 110, par. 2—611). The appeal and motion proceeded simultaneously until approximately two months later when the trial court denied defendant’s motion for sanctions. Defendant then moved to dismiss the appeal for lack of jurisdiction. In affirming the appellate court’s dismissal for lack of jurisdiction, our supreme court held that no appeal may be taken from an otherwise final judgment entered on a claim when a subsequently filed section 2—611 motion remained pending, absent a finding pursuant to Supreme Court Rule 304(a) that no just reason for delay or enforcement exists. Marsh, 138 Ill. 2d at 468.

In the present case, plaintiffs filed their petition for sanctions exactly 30 days after the entry of the order denying defendant’s motion and approximately three weeks after defendant filed his first notice of appeal. We need not reach the question, however, of whether a motion for sanctions filed subsequent to the notice of appeal renders the notice premature because defendant here filed an additional notice of appeal within 30 days of the order denying plaintiffs’ motion for sanctions. Plaintiffs’ motion to dismiss, therefore, is moot because even assuming that their argument is correct, the timely filing of the additional notice of appeal subsequent to the disposition of the sanctions motion would have invoked appellate jurisdiction. Accordingly, plaintiffs’ first motion to dismiss for lack of appellate jurisdiction is denied.

In their second motion to dismiss, plaintiffs contend that in the absence of fraud an agreed order is not appealable because it represents a consensual agreement between the parties and not a judicial determination of their rights. As a general rule, an appellate court will not review a consent decree because a decree entered by consent is no more than a court’s recording of an agreement reached by the parties in settlement of a dispute or claim and is not a judicial determination of their rights. (People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1985), 106 Ill. 2d 1, 8.) Appellate review, however, will be given a consent decree when the rights or interests of the public have been affected. Fahner, 106 Ill. 2d at 8.

Because the agreed order here affects the interests of the public, it is appealable. First, the order directly affects the interests of the citizens of the fourth ward because, by the terms of the agreement, their chosen representative no longer occupies that office. Second, the order decrees that the seat be filled pursuant to statute which contemplates the appointment of a temporary successor. Finally, defendant’s departure from office may upset the balance of power within the city council thereby affecting the outcome of ordinances which will impact the public at large. Accordingly, plaintiffs’ second motion to dismiss for lack of appellate jurisdiction is denied.

The next “set” of motions, responses and objections filed are cross-motions to strike portions of the respective parties’ appellate briefs. The set consists of seven motions, objections and responses totalling more than 45 pages.

In their motion, plaintiffs move to strike certain sentences from defendant’s statement of facts. Plaintiffs contend that the statements are not properly supported by the record. Defendant essentially responds that because the statements were found in documents which were made a part of the common-law record, it was permissible to include statements from those documents in the statement of facts section of his brief.

In his motion to strike portions of plaintiffs’ brief, defendant’s fundamental contentions are that plaintiffs’ brief contains misstatements of fact; assertions of law without citation to authority; statements of law made in a “misleading or misrepresenting” manner; and citation to irrelevant authority. In their response, plaintiffs admit to a typographical error in quoting a statute. Otherwise, they contend, inter alia, that the primary thrust of defendant’s motion is to argue additional points not raised in his reply brief and that the motion is nothing more than an attempt to circumvent the rule on page limitations.

In reply to plaintiffs’ response to his motion to strike, defendant raises a litany of additional arguments including, inter alia: (1) an objection that plaintiffs’ response improperly seeks affirmative relief in the nature of appellate sanctions; (2) that the proof of service was defective; (3) that plaintiffs’ response misrepresents facts; and (4) that plaintiffs’ suggestion that defendant was attempting to supplement his reply brief was a “baseless smear” of defendant’s integrity.

We have carefully considered the parties’ respective motions and objections thereto and have reviewed the briefs. Although we find certain statements contained within defendant’s statement of facts to be conclusory, argumentative and not grounded on objective facts, the errant remarks do not render the statement so misleading as to interfere with review; therefore, we need not strike the entire statement of facts. (See Village of Fox River Valley Gardens v. Lake County Forest Preserve District (1992), 224 Ill. App. 3d 919, 924.) Moreover, where no flagrant violations of the rules hinder our review, we will consider the brief while disregarding its inappropriate content. Kritzen v. Flender Corp. (1992), 226 Ill. App. 3d 541, 547.

Additionally, with respect to both parties’ briefs, any statement unsupported by argument or citation to relevant authority will not merit our consideration on review. (See Holmstrom v. Kunis (1991), 221 Ill. App. 3d 317, 325.) For the sake of brevity, therefore, the parties’ respective motions are granted to the extent that any statement of fact is improperly supported by the record or where any statement is unsupported by argument or relevant citation to authority; otherwise, their respective motions to strike are denied.

In addition to the parties’ motions to strike, defendant has also filed a “Petition for an Order in the Nature of a Writ of Certiorari.” In his petition, defendant seeks to invoke the original jurisdiction of this court (see Ill. Const. 1970, art. VI, §6; Ill. Rev. Stat. 1991, ch. 37, pars. 32.1, 35) to issue a summons or other order directing the clerk of the City of Highwood to certify and put before this court a copy of the city council proceedings for March 17, 1992, wherein resolution 92—R—2 was passed declaring defendant’s aldermanic seat vacant, and that the resolution be reversed or vacated “and held for naught.” Defendant contends, inter alia, that he is entitled to such relief because: (1) his constitutional right of procedural due process has been violated; (2) the city council lacked personal and subject matter jurisdiction to enter the resolution declaring defendant’s aldermanic seat vacant; and (3) the city council violated its own procedural rules.

Plaintiffs respond that this court should not exercise its discretion to entertain defendant’s petition because: (1) this court typically exercises its original jurisdiction only in administrative or technical matters; (2) the filing of the petition is premature because the agreed order vacating defendant’s aldermanic position would still be in force until this court adjudicates the underlying appeal; and (3) defendant’s petition fails to include as necessary parties the city clerk and alderman currently occupying defendant’s former aldermanic seat.

Plaintiffs subsequently filed a motion to strike defendant’s petition for failure to first obtain leave of court to file the petition. Plaintiffs contend that defendant failed to comply with sections 2—609 and 2—616 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, pars. 2—609, 2—616) and Supreme Court Rule 381 (134 Ill. 2d R. 381), which requires that defendant obtain leave to file his petition. Defendant responds that the rules do not provide that he obtain leave of this court prior to filing the petition and that the rules cited by plaintiff are inapplicable.

We conclude that it is unnecessary to consider the allegations of defendant’s petition or the parties’ contentions related thereto for the reason that certiorari is a wholly inappropriate vehicle for the type of relief sought by defendant. After reviewing defendant’s allegations, the prayer for relief and exhibits attached to the petition, it is apparent that defendant fails to comprehend the nature and purpose of a common-law writ of certiorari.

The purpose of the common-law writ of certiorari is to have the entire record of an inferior tribunal brought before the court to determine, from the record alone, whether that body acted in accordance with applicable law. (Stratton v. Wenona Community Unit District No. 1 (1990), 133 Ill. 2d 413, 427.) The writ has its origins in chancery and is utilized when a petitioner who was without an avenue of appeal or review could obtain limited review over an action by a court or other tribunal exercising quasi-judicial functions. (Hartley v. Will County Board of Review (1982), 106 Ill. App. 3d 950, 954.) Its application is limited to obtaining review over a decision by an inferior court or tribunal where that body has acted without jurisdiction, exceeded its jurisdiction or where it is shown that the court or tribunal did not follow the essential procedural requirements applicable to the cases before it. (Hartley, 106 Ill. App. 3d at 954.) As a general rule, certiorari will not lie to review acts which are ministerial, executive or legislative in nature. 14 Am. Jur. 2d Certiorari §§16,19 (1964).

Defendant’s appellate argument on this point fails to recognize that the writ applies only to judicial or quasi-judicial acts and that the passage of resolution 92 — R—2, in accordance with the March 10, 1992, agreed order, was not a judicial or quasi-judicial act. His assertions appear to rest upon the faulty premise that the city council, when it passed the resolution declaring the fourth ward aldermanic seat vacant, was adjudicating his right to occupy the seat.

A review of the resolution, which was attached as an exhibit to defendant’s petition, plainly reveals that the city council was engaged in a perfunctory task of adopting a resolution in accordance with the March 10, 1992, agreed order entered into by the parties. The resolution does not purport to render any finding or ruling based upon an adjudicative or quasi-adjudicative process. Furthermore, there is no language within the resolution to suggest that the city council was engaged in a judicial or quasi-judicial act, nor is there any evidence to suggest that the question of defendant’s “right” to occupy the aldermanic seat was decided. The resolution merely recites that the city council concurs in the March 10, 1992, agreed order, and in accordance with that order: defendant effectively tendered his written unconditional resignation; the council accepted his resignation; and the council was declaring the alder-manic seat in the fourth ward vacant. We conclude that defendant’s petition for an order in the nature of a writ of certiorari is without support and must be denied.

In addition to his pending appeal, motion to strike and certiorari petition, defendant has filed with this court a 16-page complaint in mandamus and 33-page memorandum in support thereof. In his complaint, defendant again seeks to invoke the original jurisdiction of this court (see Ill. Const. 1970, art. VI, §6; Ill. Rev. Stat. 1991, ch. 37, pars. 32.1, 35) to enter an order directing plaintiffs to restore him to his former position as alderman, return his letter of resignation, pay him back pay and return other incidents of his former aldermanic office. Plaintiffs respond in two separate motions that: (1) defendant’s motion is time barred under the doctrine of laches', and (2) sections 2—609 and 2—616 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, pars. 2—609, 2—616) and Supreme Court Rule 381 (134 Ill. 2d R. 381) required defendant to obtain leave of court prior to filing his complaint in mandamus.

Again it is unnecessary to consider the parties’ substantive contentions. Upon review of defendant’s complaint and supporting memorandum, we conclude that mandamus is wholly inappropriate to provide the relief sought by defendant. Mandamus is an extraordinary remedy. (Orenic v. Illinois State Labor Relations Board (1989), 127 Ill. 2d 453, 467.) It is appropriate only where there is a clear right to the requested relief, a clear duty of the respondent to act, and clear authority in the respondent to comply with the writ. (Orenic, 127 Ill. 2d at 468.) It is issued as an exercise of judicial discretion (Walter v. Board of Education of Quincy School District No. 172 (1982), 93 Ill. 2d 101, 105), and its only purpose is to enforce rights already lawfully vested. (Flick v. Kramer (1987), 151 Ill. App. 3d 836, 841.) Moreover, mandamus cannot be utilized to direct a public official or body to reach a particular decision or to exercise its discretion in a particular manner, even if the judgment or discretion has been erroneously exercised. (Winston Plaza Currency Exchange, Inc. v. Department of Financial Institutions (1991), 211 Ill. App. 3d 1062, 1068.) Finally, the party initiating a mandamus action bears the burden of establishing a clear legal right to the requested relief. Hampson v. Board of Education (1991), 215 Ill. App. 3d 817, 827.

While it is well settled that mandamus is a proper remedy to restore a party to the possession of an office from which he has been improperly removed or whose right to discharge the duties of the office has been improperly or unlawfully interfered with (see, e.g., People ex rel. Jonas v. Schlaeger (1942), 381 Ill. 146, 156 (mandamus proper to order court officials to allow statutorily qualified appointed judge to remain in office until successor judge qualified)), defendant here has failed to meet his burden of establishing a clear legal right to the aldermanic seat of the fourth ward. At the time of the filing of his complaint and supporting memorandum, a legal question that bears on the existence of defendant’s right to the aldermanic seat still exists. That legal question is the very issue which defendant raises before this court on appeal (i.e., whether the circuit court lacked subject matter jurisdiction to enter the agreed order wherein defendant consented to his resignation and vacation of the fourth ward aldermanic seat). Furthermore, even if this court were to vacate the March 10, 1992, agreed order, the question of whether defendant effectively resigned his seat would still exist. Additionally, defendant admits in his brief that a disputed legal issue of statutory interpretation regarding the power of the mayor to fill a temporary aldermanic vacancy exists.

Defendant’s supporting memorandum also raises questions of fact. Where issues of fact exist mandamus is an improper remedy. (Owen v. Mann (1985), 105 Ill. 2d 525, 531.) For example, defendant raises an issue of fact concerning his intent at the time he tendered his resignation letter and again with regard to his purported letter of withdrawal. Based upon the existence of disputed legal and factual questions relating to defendant’s right to occupy the aldermanic seat of the fourth ward, we conclude that defendant has failed to meet his burden, and we accordingly dismiss his complaint in mandamus.

Having disposed of the parties’ motions, defendant’s certiorari petition and mandamus complaint, we turn now to the merits of the appeal. The primary thrust of defendant’s appellate contentions is that quo warranto was the sole and exclusive remedy at law by which defendant could have been “ousted” from office. Defendant goes on to argue that because an adequate remedy at law existed, the trial court was without subject matter jurisdiction to enter the March 9, 1992, order granting the temporary restraining order and the March 10,1992, agreed order.

At the outset, we note that essential to defendant’s appellate contentions is his underlying conclusion that he was “ousted” or somehow unlawfully unseated from his office as alderman of the fourth ward. Before turning to the question of whether quo warranto was the sole and exclusive remedy available to plaintiffs, it is necessary, as a threshold matter, to consider defendant’s characterization of his departure from office.

Throughout the proceedings below and in the multitude of other matters brought before this court, defendant explicitly and implicitly maintains that his departure from office was not the result of his resignation, but rather, was brought about by the coercive effect of plaintiffs’ declaratory and injunctive action. Contrary to defendant’s characterization, plaintiffs contend that they were not seeking an ouster of defendant but rather a declaration of their rights to fill the vacancy created by defendant’s resignation and a construction of the legal effect of defendant’s purported withdrawal of his resignation.

After reviewing the entire record on appeal, we find no justification for defendant’s notion that he was ousted or otherwise unlawfully unseated from office and that the proceedings initiated by plaintiffs were brought for that purpose. It is undisputed that defendant tendered his letter of unconditional resignation to the mayor and city council at the March 3, 1992, meeting, and that he instructed another alderman to deliver the letter immediately to the mayor. It is also undisputed that defendant attempted to withdraw his resignation three days later on March 6, 1992, contending that his earlier resignation letter was of no legal effect. Defendant, however, disputes plaintiffs’ contention that the resignation letter effectuated his resignation from office.

After reviewing plaintiffs’ complaint and attached exhibits, it is apparent that it was the dispute about the effect of defendant’s resignation that prompted plaintiffs to bring an action seeking a declaration that the aldermanic seat of the fourth ward was vacant and to enjoin defendant from holding himself out as the fourth ward alderman. Plaintiffs’ complaint did not seek to remove defendant from office, as defendant maintains; rather, it appears to have been brought for the purpose of eliminating uncertainty created by defendant’s disputing the effect of his resignation.

Moreover, defendant expressly acknowledged, in the March 10, 1992, agreed order, that he “did effectively tender his written unconditional resignation” and that his “resignation was received by the Mayor of the City of Highwood on March 4, 1992.” Defendant’s express acknowledgement that he effectively resigned his position further supports our conclusion that defendant misconstrues the nature of his departure from office. Additionally, defendant has failed to articulate a well-reasoned, factually supported rationale as to why we should ignore the plain language of the agreed order. The only explanation that defendant offers as to why the plain language of the agreed order should be ignored is that at the time he signed the order he was agreeing only to waive the notice requirements pertaining to the March 9 hearing. The essence of defendant’s argument is that the agreed order is of no effect because, notwithstanding the plain language of the order, it was not his intention to resign from or vacate his aldermanic office when he signed the order.

After reviewing the language of the agreed order, we find nothing contained therein to suggest a waiver of any notice requirements. Defendant’s argument appears to be nothing more than an attempt to ignore the plain language of the agreed order. We conclude, therefore, that defendant’s characterization that he was ousted from office is of no merit.

The only question remaining is whether quo warranto was the sole and exclusive remedy by which plaintiffs could determine whether the fourth ward aldermanic seat was vacant where defendant tendered an immediate and unconditional, although subsequently disputed, letter of resignation.

The ancient common-law writ of quo warranto was an original writ issuing out of chancery in the nature of a writ of right for the king against one who claimed or usurped any office, franchise or liberty, to inquire by what authority he asserted a right thereto in order that it might be determined. (Rowan v. City of Shawneetown (1941), 378 Ill. 289, 294, overruled on other grounds sub nom. People ex rel. McCarthy v. Firek (1955), 5 Ill. 2d 317, 325.) It is “the voice of sovereignty calling upon the defendant to answer by what authority he acts.” (People ex rel. Ray v. Lewistown Community High School District No. 241 (1944), 388 Ill. 78, 87.) In Illinois, the common-law writ has evolved relatively unchanged into its present day statutory form. The quo warranto statute provides, in relevant part:

“§18 — 101. Grounds. A proceeding in quo warranto may be brought in case:
(1) Any person usurps, intrudes into, or unlawfully holds or executes any office, or franchise, or any office in any corporation created by authority of this State.” Ill. Rev. Stat. 1991, ch. 110, par. 18-101(1).

A quo warranto proceeding is a challenge to a defendant’s right to exercise jurisdiction over territory or to hold public office. (People ex rel. City of Leland Grove v. City of Springfield (1988), 166 Ill. App. 3d 943, 945.) It is generally regarded as an appropriate and adequate remedy to determine the right or title to public office and to oust an incumbent who has unlawfully usurped or intruded into such office or is unlawfully holding the same. (65 Am. Jur. 2d Quo Warranto §18 (1972).) It has also been held to be the proper remedy for determining the question of whether a person elected to office possesses the requisite qualifications for eligibility. See Bloome v. Juergensmeyer (1951), 344 Ill. App. 625, 629; see also People ex rel. Adamowski v. Wilson (1960), 20 Ill. 2d 568, 578 (implicitly recognizes that quo warranto is the proper procedure to challenge qualifications of police board commissioners); People ex rel. Reed v. Thomas (1976), 43 Ill. App. 3d 372, 374 (quo warranto appropriate to determine eligibility to hold office of village trustee).

Although the writ is properly employed to try the validity of the organization and title of the officers of public bodies, it is not the proper proceeding to test the legality of the official acts of public officers. (People ex rel. Chillicothe Township v. Board of Review (1960), 19 Ill. 2d 424, 427 (quo warranto improper to challenge acts of tax board of review where statutory procedures existed).) Moreover, the very nature of quo warranto makes it inapplicable to litigation calculated to prevent dismissal or to retain in office. Hoffman v. Wilkins (1971), 132 Ill. App. 2d 810, 816.

As applied to the present case, it is apparent that quo warranto would have been an inappropriate method for the plaintiffs to determine the vacancy of the fourth ward aldermanic seat. Their complaint did not seek to test the qualifications or eligibility of defendant to hold office, nor was it an attempt to oust defendant as a usurper or intruder of the fourth ward aldermanic seat. The purpose of plaintiffs’ complaint was to resolve uncertainty engendered by defendant’s apparent change of heart about his resignation.

Although not directly on point with the present case, we find that Hoffman lends further analogous support to our conclusion that quo warranto is inapplicable. In Hoffman, plaintiff, director of laboratories for Cook County Hospital, was served with a notice of employment termination due to organizational restructuring. Upon receipt of the notice, plaintiff brought suit enjoining the governing commission of the Cook County Hospitals from dismissing him without first providing a hearing before the civil service commission. On appeal, the governing commission implicitly argued that the proper method for challenging a public official’s right to office was through quo warranto, and not by injunction. The appellate court recognized the general proposition that quo warranto was the proper procedure to challenge a public official’s right to office; however, it disagreed with the defendant’s contention. The court stated that “the very nature of quo warranto makes it inapplicable to litigation calculated to prevent dismissal or to retain office.” Hoffman, 132 Ill. App. 2d at 816.

Additionally defendant attempts to argue that quo warranto was the only appropriate remedy because, contrary to the allegations of plaintiffs’ complaint, defendant could not “oust” himself from office, but it was possible that he forfeited his office, and that a quo warranto proceeding “could answer the question.” Defendant relies upon the forfeiture language contained "within the statute to support this argument. The statute provides that a quo warranto proceeding may be brought in the case:

“(3) Any public officer has done, or allowed any act which by the provisions of law, works a forfeiture of his or her office.” Ill. Rev. Stat. 1991, ch. 110, par. 18—101(3).

We find defendant’s argument confused and patently without merit. “Forfeiture” is defined as “[s]omething to which the right is lost by the commission of a crime or fault or the losing of something by way of penalty.” (Black’s Law Dictionary 584-85 (5th ed. 1979).) We find nothing within the record to suggest that the basis for plaintiffs’ action was the result of defendant committing a crime or some other action by way of penalty. The forfeiture provision of the quo warranto statute, therefore, has no applicability to the present case.

Finally, our determination that quo warranto would have been an inappropriate vehicle for plaintiffs to resolve the present litigation makes it unnecessary for us to consider defendant’s remaining appellate contentions because his remaining contentions presuppose that quo warranto was the proper remedy.

For the foregoing reasons, we enter our disposition as follows: (1) plaintiffs’ motions to dismiss for lack of appellate jurisdiction are denied; (2) plaintiffs’ and defendant’s respective motions to strike are granted to the extent as discussed above, otherwise they are denied; (3) defendant’s petition for an order in the nature of a writ of certiorari is denied; (4) defendant’s complaint in mandamus is dismissed; and (5) the order of the circuit court denying defendant’s motion to vacate the orders of March 9, 1992, and March 10, 1992, and dismiss plaintiffs’ cause for lack of subject matter jurisdiction is affirmed.

Affirmed.

INGLIS, P.J., and UNVERZAGT, J., concur.


author: JUSTICE McLAREN

text:
    FRANK GIRONDA et al., Plaintiffs-Appellants, v. RALPH W. PAULSEN, Defendant-Appellee (Bayport Operating, Inc., Defendant).
    Second District
    No. 2—92—0263
    Opinion filed December 21, 1992.

      Eric J. Lieberman, James P. Palermini, and James M. Charlton, all of Huck, Bouma, Martin & Charlton, P.C., of Glen Ellyn, and John V. Roscich, of Roscich & Roscich, of Naperville, for appellants.
    Peter B. Shaeffer and Tim Biasiello, both of Chicago, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiffs, Frank and Barbara Gironda, appeal the order of the circuit court dismissing count I of their amended complaint against defendant Ralph Paulsen. On appeal, plaintiffs contend that the trial court improperly applied the doctrine of election of remedies in dismissing count I.

According to plaintiffs’ complaint, they agreed to purchase from Paulsen and codefendant Bayport Operating Company (Bayport) a number of gas and oil leases for $94,887.50. Plaintiffs subsequently learned that Paulsen had made material misrepresentations with regard to the oil and gas leases. In an attempt to settle the dispute, plaintiffs and Paulsen entered into an agreement whereby Paulsen executed a promissory note payable to plaintiffs. The note called for seven installment payments, the final one being due August 25,1990.

In exchange for Paulsen’s execution of the note and making the payments, plaintiffs agreed to forbear from suing Paulsen or Bayport on the underlying agreement. Paulsen, however, failed to make any of the installment payments called for by the note.

On August 1, 1990, plaintiffs filed their original complaint. That pleading was dismissed without prejudice, and, on December 5, 1990, plaintiffs filed their amended complaint. Count I of the amended complaint sought enforcement of the note against Paulsen. Count IV alleged a cause of action under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 121½, par. 261 et seq.) against Paulsen and Bayport based on the original sale of the leases. The complaint contained two additional counts which are not at issue in this appeal.

Paulsen filed a motion for judgment on the pleadings on count I. The motion alleged a failure of consideration for the note, since plaintiffs had breached their promise to forbear from suit on the underlying contract by filing count IV. The court granted the motion, stating, “I believe if Count I stands, it creates the potential for a windfall from [sic] plaintiff in this particular case.”

Plaintiffs later dismissed voluntarily the remaining counts of the complaint, and the court’s prior order was made final and appealable pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301). Plaintiffs filed a timely notice of appeal.

On appeal, plaintiffs make two related contentions. They first argue that they could maintain a suit on the note where defendant had previously breached the agreement by failing to make the installment payments. Secondly, they contend that the court improperly applied the doctrine of election of remedies to grant judgment on the pleadings to Paulsen on count I. They contend that they were not estopped from suing on the original agreement while also maintaining a suit on the settlement agreement.

In response, Paulsen raises numerous issues. In general, defendant contends that plaintiffs cannot sue on the note, since their simultaneous filing of count IV, based on the underlying sale of the leases, constitutes a failure of the consideration for the note whereby plaintiffs agreed to forbear from such a suit. Defendant further contends that causes of action based simultaneously on the settlement agreement and the underlying contract are fundamentally inconsistent, so that plaintiffs may not properly maintain both causes of action.

Generally, sections 2—604 and 2—613(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, pars. 2—604, 2—613(b)) permit alternative pleading, even where the counts are contradictory or inconsistent. (Wegman v. Pratt (1991), 219 Ill. App. 3d 883, 895.) Thus, a plaintiff may seek alternative relief on contradictory causes of action such as breach of contract or quantum meruit. (Concord Industries, Inc. v. Harvel Industries Corp. (1984), 122 Ill. App. 3d 845.) “[T]he fact that the plaintiff could only recover for one cause of action does not require him to make an election, nor does it justify the dismissal of the suit by the trial court.” (Emphasis added.) Downs v. Exchange National Bank (1959), 24 Ill. App. 2d 24, 30.

The election of remedies doctrine applies in cases of alternative pleading only where the opposing party has substantially altered his position in reliance on the plaintiff’s choice. This is known as the “estoppel theory” of election of remedies. Altom v. Hawes (1978), 63 Ill. App. 3d 659, 662-63.

A case with facts somewhat similar to those of the instant case is Hopkins v. Holt (1990), 194 Ill. App. 3d 788. In that case, plaintiff settled a malpractice action, but defendant’s insurer filed bankruptcy. The court refused to hold defendant personally liable under the circumstances, but permitted plaintiff to vacate the original judgment of dismissal. The appellate court found no election of remedies problem where there was no possibility of a double recovery, defendant had not changed his position in reliance on the settlement, and there was no res judicata bar to the second action. Hopkins, 194 Ill. App. 3d at 797.

In the instant case, unlike Hopkins, plaintiff is seeking alternative relief in the same action. This fact, however, should not produce a different result. As in Hopkins, the plaintiffs have been placed in an untenable position through no fault of their own. They should have the option at this stage of the proceedings of enforcing the settlement agreement or seeking a remedy pursuant to the underlying contract. By ignoring his obligation under the note, defendant should not be able to force plaintiffs into an election of remedies at the beginning of the case.

Defendant contends that he has been prejudiced because plaintiffs’ count under the Consumer Fraud Act seeks punitive damages and attorney fees. However, this does not represent a change of position by defendant in reliance on plaintiffs’ election. Rather, it is a consequence of defendant’s breach of the settlement agreement. Moreover, since both counts were filed in the same action, there is no res judicata bar.

Defendant complains, however, that by filing count IV based on the underlying sale of the leases, plaintiffs have caused a failure of consideration for the settlement agreement. Defendant points out that a promise to forbear from suit, unlike other types of promises, cannot subsequently be enforced once it has been broken. Now that plaintiffs have filed suit on the original contract, they can no longer forbear from doing so.

Plaintiffs respond that the promise itself was the consideration for the settlement agreement, citing A.C. Allyn & Co. v. Tager (1966), 78 Ill. App. 2d 228. Plaintiffs further contend that, when defendant breached the agreement by failing to make the installment payments, further performance was excused. We agree.

The failure to make installment payments of the contract price is a substantial breach of the contract and excuses the other party’s performance. (F.E. Holmes & Son Construction Co. v. Gualdoni Electric Service, Inc. (1982), 105 Ill. App. 3d 1135, 1140.) Where defendant breached the agreement by failing to make any of the installment payments, plaintiffs were entitled to treat the contract as breached. They thus have the option to maintain an action on the note or to sue pursuant to the original agreement.

Defendant also contends that the absence of an acceleration clause in the note precluded plaintiffs from seeking the full amount of the note. This argument ignores the fact that plaintiffs’ amended complaint was filed after the note’s maturity date.

Since plaintiffs may maintain alternative causes of action, it follows that the court erred in dismissing count I of their amended complaint. The order dismissing count I is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

INGLIS, P.J., and BOWMAN, J., concur.