author: JUSTICE RAKOWSKI JUSTICE EGAN,

text:
    JOHN PRODROMOS, Plaintiff-Appellant, v. JERRY POULOS et al., Defendants (Jerry Poulos, Defendant-Appellee).
    First District (6th Division)
    No. 1—89—0977
    Opinion filed August 31, 1990.
    Rehearing denied October 9, 1990.

      EGAN, J., specially concurring in part and dissenting in part.
    Ronald Gertzman, of Chicago, for appellant.
    William T. Regas and Leslie R Poole, both of Park Ridge (William T. Re-gas and Mark B. Friedman, of counsel), for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff John Pródromos brought an action for specific performance of a real estate sales contract and damages against First National Bank of Skokie, as trustee, u/t/a dated October 1, 1974, a/k/a trust No. 50102T (Trustee Bank), and Jerry Poulos, the sole beneficiary of the trust. The first amended complaint requested relief on three alternate theories: (1) specific performance of the contract by the Trustee Bank; (2) specific performance by defendant Poulos; or (3) damages against Poulos for unjust enrichment. Defendants moved pursuant to sections 2—619(a)(7) and 2—619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2-619(a)(7), (a)(9)) to dismiss counts I and II on the grounds that Poulos did not have written authority to act as an agent of the Trustee Bank, that the Trustee Bank neither executed the contract nor ratified Poulos’ action, and that because Poulos signed the contract in a representative capacity he cannot be bound personally. The defendants moved to dismiss the third count on the grounds that the existence of an express contract precluded relief on a theory of unjust enrichment. The trial court granted the motion and dismissed all three counts with prejudice.

The issues presented on appeal are: (1) whether the action of the trustee in issuing three documents necessary to complete a real estate sales contract constitutes ratification of that contract even if the documents do not specifically refer to the contract; (2) whether the trust beneficiary who signed a contract as agent of the trustee but who was without authorization to do so can be personally compelled to perform; and (3) whether the complaint stated a cause of action in quasi contract. We affirm.

The parties agree on the following facts. In 1987, John Pródromos and Jerry Poulos owned adjoining parcels of real estate located in unincorporated Cook County, Illinois, outside of the Village of Glenview and the City of Prospect Heights. Legal title to the Poulos land was held by the Trustee Bank as trustee and Poulos was the sole beneficiary of the trust.

Under the terms of the trust, Poulos had power to direct the Trustee Bank to dispose of the property in various ways. However, Poulos could not act for the Trustee Bank:

“No beneficiary hereunder shall have any authority to contract for or in the name of the trustee or to bind the trustee personally.”

In 1987, Glenview sought to annex both properties. Pródromos asked Poulos to join with him in resisting the Glenview annexation in order to negotiate better terms or in annexing with Prospect Heights. Pródromos agreed to bear all expenses of these dealings which would enhance the value of both properties. In August 1987, Pródromos and Poulos agreed that, if Pródromos was successful in negotiating a favorable annexation, Poulos would agree to sell his property to Pródromos. Poulos would sell at a mutually agreed on price, and this agreement would be based in part on the annexation terms which Pródromos secured to enhance the value of the property.

After months of negotiations, Pródromos and Glenview reached a favorable annexation agreement enhancing the value of both properties. On January 5, 1988, Pródromos and Poulos met to complete the annexation agreement and to complete the documentation for the sale of Poulos’ property to Pródromos.

In paragraph No. 2, the sales contract states:

“First National Bank of Skokie, as Trustee under Trust 50102T under agreement dated October 1, 1974 by: Jerry Poulos (Seller) agrees to sell the real estate and the property described above, if any, at the price and terms set forth herein, and to convey or cause to be conveyed to Purchaser or nominee title thereto by a recordable trustee’s deed ***.”

Poulos signed the first page of the contract “Jerry Poulos, as agent for First National Bank of Skokie, T/U/T 50102T dated October 1, 1974.” The rider introduced both parties at the top, describing Poulos as an “agent” for the Trustee Bank. Poulos signed the rider twice as “Seller: Jerry Poulos.”

Subsequently, Poulos caused the Trustee Bank to issue: (1) a trustee’s deed conveying the property to the Bank of Ravenswood as trustee for trust No. 25 — 9017; (b) an ALTA statement; and (c) a proceeds letter addressed to the Bank of Ravenswood and designating Poulos and the Trustee Bank to be the recipients of monies and proceeds from the real estate transaction. However, these papers were not delivered to Pródromos.

Section 2—619 (Ill. Rev. Stat. 1989, ch. 110, par. 2—619) provides:

“(a) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
* * *
(7) That the claim asserted is unenforceable under the provisions of the Statute of Frauds.
* * *
(9) That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.”

The nonmoving party may then present affidavits or other affirmative matter to counter the affirmative defenses.

When deciding to grant a motion to dismiss based solely on the plaintiff’s pleadings, the trial court must “take all well-pled allegations of fact contained in the complaint, and in any attached exhibits incorporated into the complaint, as true and construe all reasonable inferences therefrom in the plaintiff’s favor.” (Paine/Wetzel Associates, Inc. v. Gitles (1988), 174 Ill. App. 3d 389, 391, 528 N.E.2d 358.) If the only issue before the court is whether the complaint states a cause of action, then the court must “sustain the complaint unless it clearly appears that no set of facts could be proved under the pleadings which would entitle the plaintiff to some type of relief.” Paine/ Wetzel, 174 Ill. App. 3d at 393.

In a motion brought under section 2—619 (Ill. Rev. Stat. 1989, ch. 110, par. 2—619), the court must also consider whether the defendant has brought forth facts which constitute an affirmative defense that could defeat the plaintiff’s cause of action.

I

Pródromos asserts that the actions of the Trustee Bank in issuing three documents needed to execute a real estate sale contract constitute ratification of that contract even though none of the documents refer to the contract specifically.

The Illinois Statute of Frauds (Ill. Rev. Stat. 1989, ch. 59, par. 2) provides:

“No action shall be brought to charge any person upon any contract for the sale of lands, *** unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.”

Under the Statute of Frauds, a person cannot enforce a real estate contract unless: (1) there is a written memorandum or note on one or more documents; (2) the documents collectively contain a description of the property and the terms of sale, including price and manner of payment; and (3) the memorandum or note contains the signature of the party to be charged. Shugan v. Colonial View Manor (1982), 107 Ill. App. 3d 458, 464-65, 437 N.E.2d 731.

In this case, neither party disputes the existence of a written document with the property description and terms of sale and signature of defendant Poulos as “agent” for the Trastee Bank. In his defense, Poulos disputes only whether the contract was subsequently ratified by the party to be charged, that is by the Trustee Bank.

In a contract for the sale of land, an agent may sign the contract only if the authority to do so is in writing. (Cosmopolitan National Bank v. Kobialka (1980), 85 Ill. App. 3d 1, 3, 406 N.E.2d 150, citing Lipkin v. Koren (1946), 392 Ill. 400, 64 N.E.2d 890, and Leach v. Hazel (1947), 398 Ill. 33, 74 N.E.2d 797.) If the agent’s signature is unauthorized, however, the principal can ratify the agent’s action after the fact by acceding to the action in writing. (Kobialka, 85 Ill. App. 3d at 4.) When he ratifies, the principal makes the agent’s act obligatory upon himself and thus confirms what was originally an unauthorized act. Wing v. Lederer (1966), 77 Ill. App. 2d 413, 418, 222 N.E.2d 535.

“ ‘The general rale is that the act of ratification must be of the same nature as that which would be required for conferring the authority in the first instance.’ ” (Kobialka, 85 Ill. App. 3d at 4, quoting Bruns v. Huseman (1914), 266 Ill. 212, 215-16, 107 N.E. 462.) At the least, the document ratifying an action, must show that the principal fully understood that ratification included the contract at issue. (Bruns, 266 Ill. at 215-16.) Furthermore, when several writings are used to satisfy the Statute of Frauds in support of a contract, each writing “must refer expressly to the other writing, or the several writings must be so connected, either physically or otherwise, as to show by internal evidence that they relate to the same contract.” Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 303-04, 390 N.E.2d 428.

On appeal, Pródromos concedes that Poulos was not an authorized agent of the Trustee Bank, but claims that the bank ratified the action of Poulos. After Poulos signed the contract as an “agent” of the Trustee Bank, the bank nonetheless issued a trustee’s deed, ALTA statement, and proceeds letter all dealing with the property in question. Thus, Pródromos argues, the Trustee Bank ratified the action of Poulos by issuing documents needed to complete the sale.

Poulos argues that the documents do not contain sufficient information to tie them to the improperly signed contract. They refer to the real estate in question but not to a contract with Pródromos. The trustee’s deed does not mention either Prodomos or the contract, but instead names the Bank of Ravenswood as grantee. Similarly, the proceeds letter is addressed to Ravenswood and directs that bank to send proceeds to Poulos and the Trustee Bank. The ALTA statement does not refer to any of the parties. Overall, the effect of these documents is to convey the property to a different trust.

The cases cited above state that ratification must be of the nature that would justify authorization in the first place and show that the ratifying party fully understood what was being ratified. To effect ratification, the documents must refer expressly to the contract documents. Thus, at a minimum, the Trustee Bank would have to ratify in a writing or set of writings that contained some reference to the real estate transaction and with appropriate signatures. In this case, the writings referred to the transfer of the specific property at issue but did not mention the Prodromos-Poulos sales contract. There are no allegations in the complaint that the Trustee Bank signed the documents with full understanding that these papers were connected with the Prodromos-Poulos contract.

Pródromos argues that although this fact is not specifically pleaded, we should infer it from other facts which are. This we cannot do. An inference is a “truth or proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted.” (Black’s Law Dictionary 917 (4th ed. 1957).) We cannot conclude that a Prodromos-Poulos sales contract, including its terms, is a logical consequence to be inferred from the three mentioned documents.

Furthermore, “[t]he signing of the undelivered deed, without *** showing that appellee fully understood what [it] was doing, cannot be held to be a ratification of the contract.” (Bruns, 266 Ill. at 216.) If facts exist to establish that the Trustee Bank fully understood that the documents it prepared were connected with the Prodromos-Poulos contract, these facts should have been pled.

For these reasons, we hold that the complaint did not allege a cause of action against the Trustee Bank.

II

Pródromos next contends that Poulos, who was sole beneficiary of the trust, can be compelled to perform on the land-sale contract even though he signed it as an “agent” of the Trustee Bank.

In Illinois, the beneficiary to a land trust may act in his own capacity and enter a contract for conveying trust property if he has the sole right to direct the trustee to convey title under the trust. (Seaberg v. American National Bank & Trust Co. (1976), 35 Ill. App. 3d 1065, 1069, 342 N.E.2d 751, citing Feinberg v. Great Atlantic & Pacific Tea Co. (1970), 131 Ill. App. 2d 1087, 1090-91, 266 N.E.2d 401; see also Paine/Wetzel, 174 Ill. App. 3d at 394.) Under these cases, however, “the decisive principle [is] as follows: The beneficiary of a conventional land trust, as used in Illinois, may under appropriate circumstances enter into a valid contract to convey title to the trust property. He may do so not as agent of the trustee but in his capacity of beneficiary ***.” Seaberg, 35 Ill. App. 3d at 1069, citing Feinberg, 131 Ill. App. 2d at 1087.

Prodromos cites Rizakos v. Kekos (1977), 56 Ill. App. 3d 404, 406-08, 371 N.E.2d 896, for the propositions that courts prefer contract enforcement rather than contract evasion and, therefore, will enforce a contract containing the language of conveyance and signed by the trust beneficiaries. In Rizakos, however, the buyer did not even know that a trust was involved and that the status of the signatories could become an issue. The court held that to deny specific enforcement of a contract under those circumstances “would not only allow the defendant-sellers to prejudice the plaintiff by permitting them to deny their true status as beneficiaries, but would also allow the defendants to have a unilateral option whereby they could choose to enforce or escape their obligation under this contract at their whim.” Rizakos, 56 Ill. App. 3d at 407.

Pródromos also attempts to distinguish Feinberg and Seaberg, contending that, unlike the plaintiff in Feinberg, he was not the wrongdoer who then tried to enforce the lease which he himself had signed improperly and, unlike the beneficiary in Seaberg, Poulos did not sign a lease solely as an agent. Instead, he signed the body of the contract as an agent and promised “to convey or cause to be conveyed” the property in question and then signed the contract rider twice in his individual capacity. Pródromos argues that his case fits the facts of Rizakos in that Poulos signed a contract to convey real estate and should not be able to evade the consequences of his action simply because he signed in the wrong capacity.

In this case, Poulos signed a contract and rider, both of which referred to him as the “agent” of the Trustee Bank. At the time, Pródromos knew that the trust existed and that Poulos was sole beneficiary. The facts fit the proposition of law stated in Feinberg and Seaberg, not the exception described in Rizakos.

Further, the Statute of Frauds applies in sales contracts even where the person seeking protection has contrived to defraud the plaintiff. The point is preventing greater evil.

“ ‘The moral wrong alone of refusing to be bound by an agreement because it fails to comply with the statute, does not suffice to estop a defendant from asserting the statute as a defense.’
If this were not the applied rule the effect would be to nullify the statute and open the door to frauds it is intended to prevent.” Davito v. Blakely (1968), 96 Ill. App. 2d 196, 201, 238 N.E.2d 410, quoting Loeb v. Gendel (1961), 23 Ill. 2d 502, 504, 179 N.E.2d 7.

Plaintiff also argues that if the contract is held to be unenforceable, he is without a remedy and the wrongdoer is allowed to escape. Because no attempt was made to plead other forms of action, such as breach of implied warranty of authority (Feinberg, 131 Ill. App. 2d at 1090) or fraud (Seaberg, 35 Ill. App. 3d at 1071), we will not speculate as to their viability.

For these reasons, we affirm the trial court’s decision on count II.

Ill

Pródromos argues in the alternative that he has a cause of action against Poulos for unjust enrichment even though the parties had an express, but unenforceable, contract.

As a rule, plaintiffs cannot pursue quasi-contractual claims where there is an express contract between the parties. (Industrial Lift Truck Service Corp. v. Mitsubishi International Corp. (1982), 104 Ill. App. 3d 357, 360, 432 N.E.2d 999.) This rule holds the contract parties to their agreement and prevents a party who made a bad business decision from asking the court to restore his expectations. Quasi-contract, thus, is available only in the absence of an express agreement and “is not a means for shifting a risk one has assumed under contract.” Industrial Lift, 104 Ill. App. 3d at 361.

Quasi-contract arises from the relations between the parties or from a voluntary act of one of them. (Board of Directors of Carriage Way Proyerty Owners Association v. Western National Bank (1985), 139 Ill. App. 3d 542, 547, 487 N.E.2d 974.) Action under this theory can occur “wherever one party has benefited from the services of another under circumstances in which, according to the dictates of equity and good conscience, he ought not to retain such benefit.” Carriage Way, 139 Ill. App. 3d at 548.

In some circumstances, the relationship between the parties allows relief even if an express agreement also existed. When, for example, an express contract to convey land is unenforceable because of the Statute of Frauds, courts of equity may “furnish a more complete and fuller justice than that afforded by an action at law” and order specific performance on the contract. (Tess v. Radley (1952), 412 Ill. 405, 410-11, 107 N.E.2d 677.) This remedy requires, however, that the contract be fully performed by one party and that “performance must be such that if the remedy is withheld it would be a fraud upon the promisee if the agreement were not carried out.” Tess, 412 Ill. at 411.

The facts here show that Pródromos did have a contract. The fact that the contract was unenforceable under the Statute of Frauds means only that Pródromos made a bad bargain. The court cannot interfere. The facts show further that Pródromos stood ready to perform, but not that he had paid for the land and then received nothing in return. Under Industrial Lift he cannot seek relief simply because he bargained for a contract which he could not enforce and this disappointed his expectations. Under Tess he cannot seek relief simply because he was ready to perform on the unenforceable contract.

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

Judgment affirmed.

McNAMARA, J., concurs.

JUSTICE EGAN,

dissenting in part and specially concurring in part:

I respectfully dissent. I would reverse the order of the trial court’s dismissal of counts I and II of the complaint. Since count I is pleaded alternatively to count II, I will discuss count II first.

Reduced to the essentials of the complaint, the facts are these: The plaintiff learned that the Village of Glenview intended to annex properties including those owned by the plaintiff and the defendant. The plaintiff asked the defendant to join with him in resisting annexation by Glenview. They agreed that if the plaintiff was successful in negotiating a settlement which would increase the value of their properties, the defendant would sell his property to the plaintiff at a price to be based on the favorable annexation terms. The plaintiff retained a lawyer to represent both him and the defendant in the negotiations with Glenview. After months of negotiations with Glenview, the plaintiff successfully completed an annexation agreement resulting in an increase in the value of the defendant’s property as well as the plaintiff’s property.

On January 5, 1988, the defendant, represented by his own counsel, executed a letter of direction directing the trustee bank to enter into an annexation agreement with Glenview. On the same day the defendant signed the real estate contract in issue here as agent of the trustee, but the defendant made it clear, and the plaintiff knew, that the defendant was the sole beneficiary of the trust. The parties also entered into an escrow agreement and the plaintiff issued a check in the amount of $40,000 payable to the Intercounty Title Company.

The defendant caused the trustee bank to issue a trustee deed to the Bank of Ravenswood under a land trust created by the plaintiff, an ALTA statement and a proceeds letter authorizing the Bank of Ravenswood to pay the trustee bank and the defendant the entire proceeds from the sale of the property. The proceeds letter said that the authorization for the distribution was given pursuant to the direction of the defendant beneficiary. The defendant refused to appear on the designated date for the closing.

From this record two overriding facts appear: Through the efforts of the plaintiff the defendant now is richer, and the defendant has insulated himself from any liability, for specific performance because he misrepresented his authority to the plaintiff. Such a result, in my judgment, violates fundamental principles of equity and fair dealing.

The two cases relied upon by the defendant and accepted by the majority are Seaberg v. American National Bank & Trust Co. (1976), 35 Ill. App. 3d 1065, 342 N.E.2d 751, and Feinberg v. Great Atlantic & Pacific Tea Co. (1970), 131 Ill. App. 2d 1087, 266 N.E.2d 401. Seaberg depended on Feinberg and another case cited in Feinberg, Madigan v. Buehr (1970), 125 Ill. App. 2d 8, 260 N.E.2d 431, which is also cited by the defendant here. Since Madigan is -the precedential underpinning of Feinberg and Seaberg the appropriate discussion should begin with that case.

In Madigan, the plaintiff was a beneficiary of a land trust who contracted with the defendants for the sale of land. The plaintiff held herself out as the owner of the property. The defendant defended on the ground that the plaintiff was not the owner of legal title to the property, the trustee was. The appellate court upheld judgment for the defendants. It distinguished the cases cited by the plaintiff because “the purchaser [in each of those cases] knew that he was dealing with the beneficiary.” (125 Ill. App. 2d at 16.) In this case, I repeat, the purchaser knew he was dealing with the beneficiary.

In Feinberg, it was the beneficiary lessor who sued the lessee for breach of a lease. The appellate court denied relief to the plaintiff on the ground that the plaintiff beneficiary had signed the lease as an agent of the trustee. In so ruling the court relied on Madigan. It should be noted that in both Feinberg and Madigan, unlike this case, it was the plaintiff who had arguably misrepresented his authority.

In Seaberg, the defendant, a beneficiary of a land trust, entered into a lease with the plaintiffs. The beneficiary signed the lease as agent of the trustee. The lease provided for an option to purchase the property. Correspondence was exchanged between the parties through which the plaintiffs maintained that they had exercised the option to purchase the property. A majority of the appellate court upheld the denial of specific performance to the plaintiffs on two grounds: the lack of authority of the beneficiary to act as an agent and the legal insufficiency of the “option” exercised by the plaintiffs. In holding that the beneficiary lacked authority to act as the agent, the majority depended upon Feinberg and Madigan.

The special concurring opinion, however, agreed with the majority that the option had not been properly exercised but dissented from the holding that the actions of the beneficiary did not bind the trustee, thereby requiring specific performance. The special concurring opinion made these pertinent observations:

“I disagree with the court’s opinion, however, because it follows the traditional approach to land trusts which is to view the actual owner separate and apart from the title holder, thus permitting the owner to use the land trust as an escape from obligations he has assumed with respect to his real estate.
The court’s opinion points up the artificialities resorted to in dealing with land trusts to mask the realities of the relationship between the trustee holding legal title and the one who has the power to say what should be done with the property. [The defendant] had the sole power to direct the trustee, and he and his wife were the beneficiaries of the trust. Had [the defendant] and his wife styled themselves as beneficiaries, signed the lease as beneficiaries and incorporated a provision agreeing to cause title to be conveyed when the option was exercised by the lessee, the option would have been valid under the holding in House of Realty, Inc. v. Ziff (1973), 9 Ill. App. 3d 419, 292 N.E.2d 71. Because [the defendant] departed from those formalities by identifying himself instead as ‘duly authorized agent’ for the trustee who was named in the lease, signed the lease in his own name and did not specifically agree to cause title to be transferred, [the defendant] is excused by the court’s opinion from performing an arrangement he entered into with respect to property which he and only he could direct be conveyed to plaintiffs.
[The defendant] managed the real estate and collected rent from the plaintiffs for several years. He gave them two leases, one in 1969 for a term of 1 year with an option to extend for an additional 15 months at an increased rental and the second in 1972 for a term of 2 years, again with an increased rental and with the option to purchase which gives rise to the controversy between the parties. All of this was with the acquiescence of [the wife of the defendant] who during the years involved gave her husband full authority to manage the property and to deal with the trustee. Under these circumstances, I regard the land trust as abused by applying the line of cases [including Feinberg and Madigan] that permit [the defendant] to separate himself from the land trust, cast himself in the role of a stranger to it and in effect use the land trust device to shield himself from his own actions with respect to the property held for his benefit in the land trust.” (Emphasis added.) Seaberg, 35 Ill. App. 3d at 1074-75.

I adhere to the conclusion and reasoning expressed in the special concurring opinion which refused to follow Feinberg and Madigan. In addition, I believe that the facts in this case are stronger for the plaintiff’s position than in Seaberg in that under the agreement in this case the defendant agreed “to convey or cause to be conveyed to [the plaintiff] *** a recordable trustee’s deed.” (Emphasis added.)

A final word about Feinberg. The defendant emphasizes that leave to appeal from the appellate court was denied by the supreme court. Our supreme court has held that a denial of leave to appeal carries no connotation of approval or disapproval of the appellate court action and signifies only that four members of the court, for reasons satisfactory to them, did not vote to grant leave. People v. Vance (1979), 76 Ill. 2d 171,183, 390 N.E.2d 867, 872.

Another case which criticized and refused to follow Madigan is Lampinen v. Hicks (1979), 73 Ill. App. 3d 376, 391 N.E.2d 1105. In Lampinen, the facts were the same as those in Madigan: A beneficiary seller held himself out as the owner of the property. The appellate court reversed the judgment for the purchaser and expressly refused to follow the ultimate finding in Madigan.

The plaintiff has cited Rizakos v. Kekos (1977), 56 Ill. App. 3d 404, 371 N.E.2d 896, which the majority seek to distinguish because the buyer in Rizakos did not know that a trust was involved. I believe the distinction noted by the majority is insignificant and does not detract from the case’s compelling applicability here. In Rizakos the plaintiff purchaser sued the beneficiaries of a land trust for specific performance of a sale of real estate. The defendants signed the sale contract as “sellers.” The appellate court reversed the order dismissing the complaint and relied in part on the equitable principle of estoppel (although estoppel was not expressly pleaded). The appellate court held that the sellers should not be permitted to take advantage of their failure to inform the buyer that they were beneficial instead of legal owners. I believe the same argument can be made here: The defendant should not be permitted to take advantage of the fact that he misrepresented to the plaintiff that the defendant was an agent of the trustee.

The majority also state that “the Statute of Frauds applies in sales contracts even where the person seeking protection has contrived to defraud the plaintiff. The point is preventing greater evil.” (202 Ill. App. 3d at 1031.) In support of what appears to me to be an astonishing pronouncement, the majority cite Davito v. Blakely (1968), 96 Ill. App. 2d 196, 238 N.E.2d 410, and Loeb v. Gendel (1961), 23 Ill. 2d 502, 179 N.E.2d 7. I believe the majority have misinterpreted the language of those cases. The only reasonable interpretation of those cases is that the mere fact that one enters into an agreement which is unenforceable under the Statute of Frauds does not itself constitute a fraud.

After the supreme court made the remark referred to in the majority opinion, the supreme court added the following:

“This court has long recognized the inequity of allowing one to utilize the Statute of Frauds to work an injustice or fraud, and has refused in such cases to permit its assertion as a defense. [Citations.] The courts of equity will not permit the Statute of Frauds, the only purpose of which is to prevent fraud, to be used where the effect will be to accomplish a fraud, and if the facts are such that it would be a virtual fraud to permit the defendant to interpose the statute, a court of equity will not listen to that defense. [Citations.] Appropriate here is the following language of this court in National Importing and Trading Co. v. Bear & Co. [(1927),] 324 Ill. 346, 358: ‘It is a principle reaching to the very roots of justice that no man shall be allowed to take advantage of another’s omission which has been induced by his own request. The Statute of Frauds was not designed or intended to afford an opportunity for escape from the fundamental principle that no one shall be permitted to found a claim upon his own iniquity or take advantage of his own wrong.’ ” (23 Ill. 2d at 505.)

Those cases cited by the majority do not mean that one may make with impunity an intentional misrepresentation to induce another to enter into a sales agreement to his detriment and then seek the protection of the Statute of Frauds.

The majority also say that they would not speculate on the viability of other forms of action, such as breach of implied warranty of authority or fraud, since the plaintiff made no attempt to plead other forms of action. This seems a suggestion by the majority that the blow of denying specific performance is softened by the availability of other relief but that the plaintiff negligently failed to seek the other relief. To me it is unrealistic to ignore the difficulties that the plaintiff would face in attempting to prove fraud or breach of implied warranty of authority. It is reasonable to assume that the defendant would maintain that he did not intentionally make a misrepresentation of his authority with an intent to deceive the plaintiff; that the plaintiff knew or in the exercise of due diligence could have learned of the lack of authority; and that the plaintiff suffered no damage.

In sum, in my judgment, a beneficiary of a land trust who signs a lease or a contract for the sale of land should be bound regardless of whether he represents himself as owner, beneficiary or agent of the trustee. In the context of a land trust, they are artificial distinctions and should not be recognized.

In Lampinen v. Hicks, the appellate court, as noted, refused to follow Madigan. It disagreed with the expression in Madigan that the land trust is of such importance that it must be preserved by the courts. The court added, “It may well be that the time has come to void or avoid land trusts in Illinois.” (Lampinen, 73 Ill. App. 3d at 379.) If the result reached in this case may stand, I would join in that expression of the appellate court in Lampinen.

COUNT I

I disagree also with the majority’s opinion that count I was properly dismissed. As the majority note, a complaint may not be dismissed “unless it clearly appears that no set of facts could be proved under the pleadings which would entitle the plaintiff to some type of relief.” (Paine/Wetzel Associates, Inc. v. Gitles (1988), 174 Ill. App. 3d 389, 393, 528 N.E.2d 358; see 202 Ill. App. 3d at 1028.) The issue is whether under count I the plaintiff could prove a set of facts which would establish ratification of the acts of the defendant by the trustee. I believe that it is possible for the plaintiff to prove such a set of facts.

Ratification is a question of fact where the evidence admits of different interpretations. (3 C.J.S. Agency §549 (1973).) Ratification rests on the intentions of the principal and requires that the principal possess full knowledge of the facts. (Wing v. Lederer (1966), 77 Ill. App. 2d 413, 222 N.E.2d 535.) At this point I note the observation of the majority that “[tjhere are no allegations in the complaint that the Trustee Bank signed the documents with full understanding that these papers were connected with the Prodromos-Poulos contract.” (202 Ill. App. 3d at 1030.) The majority also say that, “[the plaintiff] argues that although this fact is not specifically pleaded, we should infer it from other facts which are.” (202 Ill. App. 3d at 1030.) The majority conclude that it cannot be inferred from the pleadings, including the three documents relied on by the plaintiff, that the trustee had knowledge of the contract.

I disagree with the majority for a number of reasons. First, the dismissal order recited that “the complaint was dismissed with prejudice without further leave to amend by the Plaintiff on the grounds that all Counts therein are insufficient as a matter of law and are fatally defective.” (Emphasis added.) The defendant never argued in the trial court, nor does he in this court, that the complaint failed to allege knowledge of the contract on the part of the trustee. Moreover, the only reference to the bank’s knowledge was made by the plaintiff himself in his opening brief when he said, “Although ratification generally requires the principal to have full knowledge of all the material facts, silence under a certain set of circumstances can equate to the requisite ratification.”

The defendant’s argument in the trial court was, and is in this court, that the documents were never delivered to the plaintiff and that they did not refer to the contract of sale. It is unfair, therefore, for this court, on its own initiative, to penalize the plaintiff for failing to expressly plead that the trustee had knowledge of the contract of sale, an argument not advanced by the defendant here. Any deficiency in the pleading, if called to the attention of the plaintiff in the trial court, could have been corrected by amendment.

Second, I disagree that it is not a proper inference to be drawn from the circumstances pleaded that the trustee had knowledge of the contract. The trust of which the defendant was the beneficiary was with the Bank of Skokie as trustee under trust number 50102T. On January 5, 1988, the trustee Bank of Skokie prepared and signed a trustee’s deed and identified the trust as 50102T. It recited that the conveyance was made pursuant to direction. (The defendant had the sole power of direction.) The. complaint alleges that the defendant signed a letter directing the trustee to execute a trustee deed conveying the property to the Bank of Ravenswood. It also alleges that the trustee did execute the document at the written direction of the defendant and that the defendant “caused” the trustee to execute the documents. The grantee was the Bank of Ravenswood as trustee. The ALTA statement was also prepared and signed by the bank as trustee under trust number 50102T. On January 5, 1988, the same date that the trustee deed was executed (and the contract was signed), the agent of the Bank of Skokie under trust 50102T signed the proceeds letter authorizing the Bank of Ravenswood as trustee, the grantee of the property, to pay the proceeds of the sale of the property to the Skokie Bank and the defendant.

It is inconceivable to me that these facts do not, as a matter of law, circumstantially establish that the trustee had knowledge of the contract of sale between the plaintiff and the bank’s beneficiary. The documents were not generated out of thin air or through the whim or caprice of the trustee.

In like vein, I believe the complaint, including the documents, created a question of fact whether the trustee, by executing the documents, intended to ratify the act of the defendant. The rule requiring written ratification is satisfied if several writings are so connected, either physically or otherwise, as to show by internal evidence that they relate to the same contract. Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 390 N.E.2d 428.

The same assistant vice-president and trust officer signed all three documents; it is clear that at least the trustee deed and proceeds letter were signed on the same date that the contract was signed. All three documents are signed in the capacity as trustee under trust number 50102T. The bank knew that the defendant was the beneficiary of the trust and that only he had the power of direction. It knew that the property could be conveyed pursuant only to a written agreement and that the bank itself had not executed any written agreement. Consequently, the only reasonable inference to be drawn is that the bank knew that the defendant had executed a written agreement. The bank expressly stated that it was executing the conveyance pursuant to direction. In my judgment, the documents created at least a question of fact whether they represented an intention on the part of the bank to ratify the actions of its beneficiary. The rule that authority of an agent to execute a written contract must also be in writing was designed to protect the principal and to permit the principal to avoid obligations created by an agent. The terms of the land trust agreement itself protect the principal regardless of the actions of the beneficiary. To hold here that the record fails to establish as least a fact question as to whether or not the trustee ratified the actions of the beneficiary would not redound to the protection of the trustee but would only permit the beneficiary to avoid his obligations.

I do not believe the case cited by the defendant, Cosmopolitan National Bank v. Kobialka (1980), 85 Ill. App. 3d 1, 406 N.E.2d 150, is apposite. In that case the lawyer for the beneficiaries signed the contract of sale. The purchasers argued that certain writings constituted the necessary written ratification by the beneficiaries of their attorney’s action. The writings included a letter sent by the attorney for the purchasers to the attorney for the beneficiaries who had signed the contract and a letter from the attorney for the beneficiaries to the attorney for the purchasers stating that a check was enclosed to return the earnest money of the purchasers and stating that the letter “shall stand as cancellation” of the contract that had been signed by the attorney. The second letter also stated that if the lawyer for the purchasers prepared documents concerning the right of first refusal, the attorney for the beneficiaries would “cause them to be executed by [his] clients.” The last document was a written direction to the trustee bank instructing the bank to execute a “Grant of Right of First Refusal” to one of the purchasers. The document was signed by the beneficiaries. The documents relevant to the right of first refusal were never executed. The purchasers argued that the conduct of the beneficiaries in directing the execution of documents promised by their attorney ratified their attorney’s execution of the real estate contract. Factually, Kobialka is wide of the mark in this case. The letter of direction in that case can hardly be equated with the trustee deed and proceeds letter signed by the trustee in this case. I note that the appellate court pointedly observed that there was no allegation that the beneficiaries themselves misrepresented anything. Parenthetically, I find it interesting that the beneficiaries did not argue that there was no ratification because the trustee had not ratified the actions of the beneficiaries’ agent.

The defendant has referred to a number of variances between the contract and the documents. For example, the contract names the plaintiff, John Pródromos, as the purchaser and the trustee deed and the proceeds letter refer to the Bank of Ravenswood as purchaser. I believe that the differences between the documents go only to the weight of the evidence. They do not establish, as a matter of law, that no question of fact exists as to whether the bank intended to ratify the actions of the defendant by executing the documents.

Last, although the majority did not address the question, I wish to make it clear that I do not accept the defendant’s argument that the documents may not be considered because they were not delivered to the plaintiff. He cites no authority in support of the argument, and I do not believe one exists.

COUNT III

The majority affirm the dismissal of count III on the ground that specific performance may be granted only where the contract is fully performed by the party seeking relief and that the plaintiff had not performed. Count III, however, does not seek specific performance; it seeks damages. For that reason, I cannot agree with the majority’s reasoning. I am unable to determine with reasonable certainty from the complaint and the plaintiff’s briefs exactly what the basis of his claim is. All the factual allegations of counts I and II are repeated in count III. Count III adds that the defendant was “unjustly enriched to the detriment of the plaintiff” as a result of the negotiations performed by the plaintiff with the Village of Glenview. I would guess that the relief sought is not dependent on the written contract, but I am not sure. If the plaintiff is claiming damages from the defendant based on the work and time that he expended in the negotiations with the Village of Glenview pursuant to an agreement with the defendant and that the defendant was thereby enriched, that is one thing. It is another thing, however, if the plaintiff is seeking damages for unjust enrichment based on the written contract that he entered with the defendant which is now repudiated. If the claim is based on the written contract, then, in my judgment, the order dismissing count III should be affirmed. The plaintiff’s argument in his brief on this point consists of the following three sentences:

“It is apparent that the Defendants failed to notice Count III of the Amended Complaint was pled in the alternative. Although Plaintiff is aware that a quasi-contractual claim cannot arise from a written agreement between the parties concerning the same subject matter, the Defendants in this proceedings [sic] have expended great effort to convince this court that the real estate contract is not valid and thus does not exist as a contract. For the Defendants in Count III to now claim that the quasi-contractual claim for unjust enrichment is barred by the real estate contract only demonstrates the bizarre circuitous illogic of the defendant’s arguments.”

Since I am unable to determine what the plaintiff’s claim is based on, I conclude that he has failed to properly preserve the point for review. I therefore would affirm the dismissal of count III.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    FIRST WISCONSIN NATIONAL BANK OF MILWAUKEE, Plaintiff-Appellee, v. ARNOLD I. KRAMER et al., Defendants-Appellants.
    First District (6th Division)
    No. 1—89—3077
    Opinion filed August 31, 1990.
    Rehearing denied October 9, 1990.

      Arnold I. Kramer and Sharon G. Kramer, both of Chicago, appellants pro se.

    Mayer, Brown & Platt, of Chicago, and Foley & Lardner, of Milwaukee, Wisconsin (George W. Craven, Jonathan J. Olcott, Michael A. Bowen, and Robert E. Shumaker, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendants, Arnold I. and Sharon G. Kramer, appeal from a trial court’s grant of summary judgment in favor of plaintiff First Wisconsin National Bank of Milwaukee, permitting plaintiff to register a foreign default judgment against defendants. On appeal, defendants, both acting pro se, contend that the court erred in granting summary judgment for plaintiff; that the judgment sought to be registered is void due to lack of subject matter jurisdiction, or because Michigan had primary jurisdiction; that plaintiff was barred by collateral estoppel and res judicata from prosecuting the foreclosure deficiency action in Wisconsin; and that Illinois cannot enforce the Wisconsin judgment because the Wisconsin court failed to give full faith and credit to an earlier Michigan decision.

In March 1973, the bank extended a $1.4 million loan to a corporation, Sharfern, Inc., which the Kramers, who were guarantors of the loan, formed to borrow money to finance a condominium conversion project in Michigan. The project failed.

The extensive litigation concerning this debt has spanned 15 years and has been before State courts in Michigan, Wisconsin, Illinois, and a Federal bankruptcy court. The Illinois litigation seeking to register the foreign judgment began over three years ago.

In 1975, the bank commenced the Wisconsin action to recover on the guaranties. The bank also filed a foreclosure action in Michigan, seeking a sale and foreclosure of the mortgaged premises to satisfy the debt secured by the mortgaged premises and, in the event such sale shall fail to yield sufficient proceeds to satisfy the sums determined to be due, seeking a judgment for such deficiency against Sharfern.

(The Wisconsin action was stayed pending conclusion of the Michigan foreclosure proceedings. The Michigan proceedings were thereafter delayed when Sharfern filed for reorganization under the Bankruptcy Act. The bankruptcy court subsequently permitted the bank to proceed with the Michigan foreclosure action.)

In December 1976, the bank obtained a judgment of foreclosure in Michigan against Sharfern, and the bank purchased the property at a sheriffs sale for $1,453,000. The Michigan court entered an order confirming the sale. The court found the total amount owed to the bank was $1,794,380, including interest. The bank sold the property in 1980 for $1,475,000. In the Michigan action, no deficiency judgment was entered or requested.

In Wisconsin, the bank resumed its action against the Kramers as guarantors. The Kramers moved to dismiss, alleging failure to state a claim, estoppel due to the Michigan judgment, and lack of personal jurisdiction. On September 11, 1979, the motion to dismiss was denied. The Wisconsin trial court found the complaint stated a claim. The court also found an estoppel defense could not be decided on a motion to dismiss. In regard to personal jurisdiction, the court held that Wisconsin statutes and case law conferred jurisdiction over the Kramers because the loan guaranty was executed by the Kramers in Wisconsin, which constituted a “substantial contact with [this] state upon which jurisdiction of this court over defendants may be based” (citing Oxmans’ Erwin Meat Co. v. Blacketer (1979), 86 Wis. 2d 683, 691-92, 273 N.W.2d 285).

On October 29, 1979, the Kramers filed pleadings in the Wisconsin case which included affirmative defenses restating the three grounds of the motion to dismiss. The same jurisdiction and estoppel defenses are set forth by the Kramers in the present Illinois action.

In February 1985, a jury trial was held, and the jury awarded damages to the bank in the sum of $400,000. Judgment was entered on the verdict, including interest for a total of $428,840.24. That Wisconsin deficiency judgment has been affirmed on appeal. The jurisdiction issue was not raised on appeal by the Kramers, but the Wisconsin Court of Appeals addressed the Kramers’ res judicata and waiver arguments as follows:

“The Kramers argue that by failing to obtain a deficiency judgment in the Michigan proceedings, First Wisconsin waived its right to hold them liable for any deficiency, and the Michigan proceedings are res judicata. We disagree.
In the foreclosure action, the Michigan court held that upon confirmation of the sale hereunder, if either principal, interest or costs remain unpaid after application of sale proceeds, execution may issue for the amount of such deficiency upon application therefore, against Defendant, SHARFERN, INC., without notice to the Defendant herein and is hereby authorized under the provisions of C.L. 600.3105(2) to pursue its remedies as to such deficiency if any there be, as against Defendant Sharfern, Inc., and any guarantors or indemnitors thereof, without prejudice, however as to the assertion of any lawful defenses as to such guarantees or indemnities.
The Kramers argue that although the Michigan court authorized First Wisconsin to pursue its remedies as to the deficiency, the judgment did not alter the statutory requirement that leave of court must be granted before a separate proceeding on the debt could be maintained. We conclude that in its decision, the Michigan court did expressly grant such leave when it stated in the above paragraph that First Wisconsin was ‘authorized under ... C.L. 600.3105(2) to pursue its remedies as to such deficiency ... against ... any guarantors ... .’
The Kramers also argue that Michigan law requires that First Wisconsin apply to the clerk of circuit court issuing the first original foreclosure to obtain a deficiency judgment. According to the Kramers, this failure to obtain a deficiency judgment discharges Sharfern’s liability for any deficiency, and precludes First Wisconsin from holding the Kramers liable on their guaranty. This argument overlooks the fact that under both Wisconsin and Michigan law, First Wisconsin had the right to proceed directly against the Kramers because of their personal liability as guarantors, regardless of the fact that an action against the debtor corporation and the collateral had been started earlier. Therefore, we reject the Kramers’ argument on this issue.” First Wisconsin National Bank v. Kramer (Wis. App. Nov. 21, 1986), 135 Wis. 2d 542, 401 N.W.2d 27 (unpublished limited precedent opinion).

In Illinois, on February 3, 1987, the bank filed a petition for registration of foreign judgment, based on the Wisconsin deficiency judgment. On September 8, 1987, Sharon filed a, verified answer to the petition. On April 20, 1988, the bank moved for summary judgment against Sharon.

On April 22, 1988, the bank sought a default judgment against Arnold. On July 27, 1988, however, Arnold was permitted to file his verified answer to the petition. He subsequently moved to have the bank’s summary judgment request deemed filed against him as well, and he filed responses to the motion for summary judgment. (Sharon did not file a response to the summary judgment motion until June 1, 1989, when she filed a motion to dismiss the request for summary judgment.)

On June 13, 1989, after numerous hearings and continuances, the Illinois trial court here entered summary judgment, granting the bank’s petition for registration of the $400,000 Wisconsin deficiency judgment. It denied Sharon’s motion to dismiss. The court entered a final judgment on the bank’s petition to register judgment in the amount of $428,000, plus interest at the rate of 12% per year from September 18, 1985, plus costs. The court found that it was obligated to give full faith and credit to the Wisconsin judgment. It noted that the Wisconsin court had considered and rejected the same arguments now made by the Kramers in Illinois, and stated that the Illinois court had no power to, in effect, reverse the appellate court of Wisconsin.

A motion for summary judgment is proper where the documents on file show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).

The full faith and credit clause of the United States Constitution provides that full faith and credit shall be given to the judicial proceedings of every other State. (Brownlee v. Western Chain Co. (1977), 49 Ill. App. 3d 247, 250, 364 N.E.2d 926, 928, quoting U.S. Const., art. IV, §1.) A lawsuit which has been pursued to judgment should be as conclusive in every other court as it is in the court where the judgment was entered. (49 Ill. App. 3d 247, 364 N.E.2d 926.) Moreover, the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1989, ch. 110, par. 12—601 et seq.) implements the full faith and credit clause and facilitates such interstate enforcement of judgments. (Paine, Webber, Jackson & Curtis, Inc. v. Rongren (1984), 127 Ill. App. 3d 85, 468 N.E.2d 459.) A judgment debtor may not defend on grounds which could have been presented to the foreign court in which the judgment was rendered. 127 Ill. App. 3d 85, 468 N.E.2d 459.

The Kramers argue that they are entitled to a trial or evidentiary hearing on the issue of personal jurisdiction of the Wisconsin court to enter the judgment which the bank now wants to register in Illinois. The Kramers maintain that Wisconsin had no jurisdiction because a Michigan statute bars separate proceedings for the recovery of a debt secured by the same mortgage which has been foreclosed upon; because the debt was nonexistent, having merged into the prior Michigan foreclosure action and judgment; and because they did not perform “substantial activities” in Wisconsin.

Where a defendant challenges jurisdiction in a foreign court, and that court rules on the issue, that defendant is barred by the doctrine of res judicata from relitigating the issue in the registering court. (Ross & Chatterton Law Offices v. Lewis (1982), 109 Ill. App. 3d 856, 857, 441 N.E.2d 129, 130 (Wisconsin court decided personal jurisdiction argument raised by defendant; Illinois court will not prevent registration based on the ground that the Wisconsin court lacked personal jurisdiction).) A court may, of course, inquire into jurisdiction before registering a foreign judgment (Norman v. Kal (1980), 88 Ill. App. 3d 81, 410 N.E.2d 316; Evans v. Advance Schools, Inc. (1979), 70 Ill. App. 3d 947, 388 N.E.2d 1003); but res judicata limits our power significantly. We cannot inquire into the jurisdiction of the rendering court if that issue has already been litigated. Ross & Chatterton Law Offices v. Lewis, 109 Ill. App. 3d at 857-58, 441 N.E.2d at 130-31, citing Transamerica Trade Co. v. McCollum Aviation, Inc. (1981), 98 Ill. App. 3d 430, 424 N.E.2d 740; Brownlee v. Western Chain Co., 49 Ill. App. 3d 247, 364 N.E.2d 926.

We hold that no evidentiary hearing was necessary on the personal jurisdiction issue and that full faith and credit must be extended to the judgment since the inquiry made by the trial court disclosed that the rendering court heard and decided the fully litigated issue of personal jurisdiction. See Brownlee v. Western Chain Co., 49 Ill. App. 3d 247, 364 N.E.2d 926.

The Kramers also raise the estoppel and waiver arguments which were litigated in Wisconsin. The remainder of the Kramers’ arguments, alternatively labeled as “subject matter jurisdiction,” “res judicata,” and “collateral estoppel,” blur together and appear to all revolve around this point. The simple answer is that the Wisconsin court directly addressed, and rejected, the argument that the Wisconsin action was barred by the Michigan action and that the bank waived its right to recover any deficiency.

A judgment debtor may not defend against a petition to register a foreign judgment on grounds which could have been presented to the foreign rendering court. (Dawson v. Duncan (1986), 144 Ill. App. 3d 532, 537, 494 N.E.2d 900, 903.) Moreover, the Wisconsin court expressly concluded that both Wisconsin and Michigan law permitted the bank to proceed directly against the Kramers due to their personal liability as guarantors, notwithstanding the fact that a previous action was filed against the debtor corporation and the collateral.

The Kramers’ citation of Illinois law governing deficiency judgments has little relevance here. To register a judgment from a sister State, the law upon which that judgment is based need not be identical to the law of the registering State. See, e.g., Brownlee, 49 Ill. App. 3d at 250, 364 N.E.2d at 928.

The Kramers’ reliance on Klumpner v. Klumpner (1989), 182 Ill. App. 3d 22, 537 N.E.2d 914, and similar cases, is misplaced. In that case, Klumpner did not litigate the issues of res judicata and collateral estoppel in the rendering court. Indeed, Klumpner refused to appear at the hearing in the rendering court. The Illinois registering court, therefore, could inquire into the jurisdiction issue. Moreover, there were unique statutory considerations in Klumpner, peculiar to the Uniform Child Custody Jurisdiction Act.

In sum, the trial court properly entered summary judgment in favor of the plaintiff bank and registered the Wisconsin judgment. The record establishes that no genuine issues of material fact remain and that the bank is entitled to judgment as a matter of law, as to the registration of the Wisconsin judgment in Illinois.

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

Judgment affirmed.

LaPORTA, P.J., and RAKOWSKI, J., concur.


author: JUSTICE SCARIANO

text:
    THE DEPARTMENT OF REVENUE, Plaintiff-Appellee, v. ROMAN S. DOMBROWSKI ENTERPRISES, INC., et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—88—3537
    Opinion filed January 16, 1990.
    Rehearing denied May 1, 1990.

      William J. Gerard, of William J. Gerard, Ltd., of Chicago, for appellants.
    Neil E Hartigan, Attorney General, of Springfield (Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

This action was filed by the Department of Revenue (Department) in 1975 to collect a deficiency in retailer’s occupation tax (ROT) payments owed by Roman S. Dombrowski Enterprises, Inc., from the corporation and its two stockholders and officers, Roman and Mary Dombrowski. After a default judgment entered against the corporation proved to be uncollectible, a trial was held in 1988 to determine whether Roman Dombrowski and his wife were personally liable for the deficiency. The trial judge found that Roman Dombrowski (defendant) was personally liable pursuant to section 13V2 of the Retailers’ Occupation Tax Act (ROT Act) (Ill. Rev. Stat. 1973, ch. 120, par. 452V2), and defendant appeals.

In 1968, defendant, desiring to form a corporation for the purpose of operating a service station leased from Shell Oil Company, hired an accountant to effect the incorporation, review the lease, and assist in starting up the business. In late 1971, however, he discovered that his business had not been properly incorporated. Prior to this time, ROT returns filed with .the State had been completed on the incorrect assumption that the corporation had been properly formed. Defendant properly incorporated on January 18, 1972, under the name of “Roman S. Dombrowski Enterprises, Inc.”

On April 1, 1975, the Department filed its two-count complaint seeking to recover a ROT liability of $47,944.91 for the period January 1970 through August 1972. As indicated on an attached final tax assessment issued October 7, 1974, this figure represented a tax liability of $31,247.33; the remainder consisted of statutory penalties and interest. The first count sought recovery solely against the corporation; the second count sought recovery against Roman and Mary Dombrowski on the ground that the corporation was their alter ego, and on the ground that derivative liability existed based on section 13 V2 of the Retailers’ Occupation Tax Act, which provides:

“Any officer or employee of any corporation subject to the provisions of this Act who has the control, supervision, or responsibility of filing returns and making payment of the amount of tax herein imposed in accordance with Section 3 of this Act and who willfully fails to file such return or to make such payment to the Department shall be personally liable for such amounts, including interest and penalties thereon, in the event that after proper proceedings for the collection of such amounts, as provided in said Act, such corporation is unable to pay such amounts to the department; and the personal liability of such officer or employee as provided herein shall survive the dissolution of the corporation.” Ill. Rev. Stat. 1973, ch. 120, par. 452V2.

On May 7, 1975, the Dombrowskis filed a motion in lieu of an answer stating that a previous lawsuit had been filed against them by the Department based on the same tax liability, and that since judgment had been entered in favor of the Department in the amount of $2,198.43 in that action, the instant suit should be barred.

On November 3, 1975, the trial judge remanded the case to the Department for a hearing to determine the period covered by the earlier judgment. After a number of continuances, the Department held the court-ordered rehearing on August 10, 1976, and July 14, 1978. The resulting report and disposition issued by the Department indicate that defendant had submitted additional documents during the course of the rehearing which he claimed proved that he had not been given full credit for taxes paid. On reviewing these documents, the Department determined that the original assessment should be upheld, but the reason the documents were not taken into consideration was not given. Similarly, no mention was made of the prior lawsuit. A revised final assessment was issued based on the same amount of tax liability previously determined ($31,247.33), with an additional $32,634.09 assessed for penalties and interest, bringing the total amount claimed to $63,881.42.

On January 10, 1980, the trial judge entered an order based on the Department’s findings. A default judgment was entered against the corporation on count I of the complaint in the amount of $68,568.52 because additional interest had accrued. The order contained nothing regarding defendant’s claim that an earlier suit barred further recovery.

After another series of lengthy continuances, a trial was held on September 28, 1988, on count II of the complaint, which sought to impose personal liability on the Dombrowskis. The judge ruled that he could not consider defendant’s documents contradicting the amount of the deficiency determined by the Department on the ground that he did not have jurisdiction to review the agency action. In an order entered November 3, 1988, he held that Mary Dombrowski had no personal liability for the taxes owed, while Roman Dombrowski was held primarily liable for that period of the assessment when no corporate entity was in existence, and that he was also derivatively liable under section 13V2 for the period when the corporation was in existence. A judgment in the amount of $31,247.33, the amount of tax owed exclusive of penalties and interest, was entered against defendant, which ruling was not contested by the Department. A notice of appeal was filed by defendant on December 1, 1988.

I

Defendant first argues that the circuit court erred in failing to consider documents he submitted at trial which, he claims, demonstrate that the Department did not give him full credit for taxes paid. He also claims that these documents, apparently the same as those he submitted to the Department during the administrative rehearing, establish that neither he nor the corporation owes more than an insignificant amount ($31.77) for ROT taxes. We find this argument untenable; therefore, we affirm the decision of the trial court.

Under the terms of the ROT Act, anyone who becomes obligated for due and unpaid taxes is initially sent a notice of tax liability. (Ill. Rev. Stat. 1973, ch. 120, par. 444.) If no protest is received within 20 days, the assessment becomes final; if a timely protest is made, the Department holds a hearing and subsequently issues a final assessment. (Ill. Rev. Stat. 1973, ch. 120, par. 444.) Once an assessment becomes final, the taxpayer may obtain judicial review of the agency determination only if he or she complies with the provisions of the Illinois Administrative Review Act (ARA) (Ill. Rev. Stat. 1973, ch. 110, par. 264 et seq.). (Ill. Rev. Stat. 1973, ch. 120, par. 444.) Section 267 of the ARA, now codified as section 3—103 of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3—103), provides that a person seeking judicial review of a final agency action must file an action in the circuit court within 35 days after service of the final agency determination. The Illinois Supreme Court has held:

“[I]f a proceeding is not brought under the Administrative Review Act for judicial review of the Department’s final assessment the assessment will be conclusive as to all questions affecting its merits. A defense as to the merits of the case must be raised through administrative review or it will be considered waived.” Calderwood Corp. v. Mahin (1974), 57 Ill. 2d 216, 220, 311 N.E.2d 691, 693.

See also Department of Revenue v. Jones (1986), 141 Ill. App. 3d 968, 491 N.E.2d 117.

Defendant now asks us to reverse the trial court’s decision that judicial review of the Department’s determination of tax liability would be improper. We find the trial court’s ruling to have been properly taken under both the ROT Act and the ARA. The Department issued a final assessment on October 7, 1974, and defendant does not contend that the Department failed to serve him with notice thereof; consequently, defendant had 35 days from the date of service of the final assessment to file an action seeking judicial review of the agency determination. Having failed to file such an action, he has instead improperly sought judicial review of the Department’s action as part of his defense to the instant lawsuit; but because of defendant’s failure to comply with the ARA, we are not empowered to review the merits of the final assessment or the revised final assessment. Jones, 141 Ill. App. 3d 968, 491 N.E.2d 117.

II

Having established that defendant may not challenge in this appeal the amount of the tax deficiency, we now address the two remaining arguments raised against the trial court’s finding of personal liability. First, without clearly enunciating why, defendant asserts that his failure to pay the claimed tax deficiency is not a willful failure to pay taxes within the meaning of section 13V2, set forth above. This argument is totally without merit and must be rejected.

A willful failure to pay taxes must be voluntary, conscious and intentional. (Department of Revenue v. Joseph Bublick & Sons, Inc. (1977), 68 Ill. 2d 568, 369 N.E.2d 1279.) A number of Illinois decisions have considered the meaning of this standard. In the case at bar, the trial judge found that defendant voluntarily failed to pay taxes in a manner similar to that encountered in Department of Revenue v. Heartland Investments, Inc. (1985), 106 Ill. 2d 19, 476 N.E.2d 413, in which two taxpayers were found to have willfully failed to pay taxes when they admitted awareness of their responsibility to make monthly ROT payments and voluntarily used taxes collected to pay other corporate obligations.

The question of willful refusal to pay taxes is a question of fact, and the findings of the trial judge will not be disturbed unless they are against the manifest weight of the evidence. (Department of Revenue v. Sopko, Inc. (1980), 84 Ill. App. 3d 953, 406 N.E.2d 188.) Defendant has failed to make such a showing. Indeed, the record indicates he had a substantial role in the preparation and filing of his ROT returns and in the payment of his ROT taxes. He prepared preliminary ledgers which were used by his accountant to prepare the returns; he signed checks remitting ROT payments to the Department; and he appears to have personally mailed the returns. Defendant’s business was not a large and complicated operation, having consisted of only a few employees. Moreover, for purposes of this appeal, we must accept the Department’s conclusion that a substantial number of tax payments have not been made. (Calderwood Corp. v. Mahin (1974), 57 Ill. 2d 216, 220, 311 N.E.2d 691, 693.) Taking these factors into consideration, it cannot be said that the trial court’s finding that defendant willfully failed to pay taxes is against the manifest weight of the evidence. This case is clearly distinguishable from Sopko, where his accountant failed to follow the taxpayer’s instructions to pay taxes owed as stated on a notice of tax liability, and where the accountant regularly underreported sales receipts without the taxpayer’s knowledge. Similarly, this case is different from Department of Revenue v. Corrosion Systems, Inc. (1989), 185 Ill. App. 3d 580, 541 N.E.2d 858, where the taxpayer, in good faith, had the mistaken belief that no taxes were owed.

Defendant finally argues that since the Department’s theory of liability asserted at trial was based on derivative liability under section 13 V2, the trial court erred in imposing primary liability on its own initiative for the period in which the corporation was not in existence. The trial court, it is claimed, committed reversible error in going beyond the allegations of the complaint to hold defendant personally liable. We note that the Department had undoubtedly known for years about the “defective” incorporation; we thus find it difficult to understand why it never took the simple step of moving to amend the complaint to change its theory of recovery accordingly.

However, this oversight need not be fatal to the Department’s position. This court can affirm a judgment even though it is based on incorrect reasoning as long as there are other valid reasons of record to support the judgment. (Bell v. Louisville & Nashville R.R. Co. (1985), 106 III. 2d 135, 478 N.E.2d 384.) In 1968, defendant advised the Department that he was conducting business under the name “Roman S. Dombrowski Enterprises, Inc.,” and his ROT returns were filed under this designation. In such circumstances, defendant should be estopped from denying corporate tax liability. (W. Fletcher, Private Corporations §3986 (1982).) Alternatively, corporate tax liability can be imposed under the doctrine of the de facto corporation. (Gunggoll v. Outer Drive Athletic Club (1932), 349 Ill. 406, 182 N.E. 409; see also United States Fidelity & Guaranty Corp. v. Putzy (N.D. Ill. 1985), 613 F. Supp. 594; Fletcher, §§3761, 3776 through 3777 (1982).) Thus, derivative liability can be properly imposed under section 13V2 for the tax periods before valid incorporation occurred in January 1972.

We recognize that there is some speculation that section 2.15 of the Business Corporation Act of 1983 (Ill. Rev. Stat. 1987, ch. 32, par. 2.15) and similar statutes have done away with the de facto corporation and estoppel concepts. See Fletcher, section 3762.1 (1982), citing section 2.15 of the Illinois Business Corporation Act, which states:

“Upon the issuance of the certificate of incorporation by the Secretary of State, the corporate existence shall begin, and such certificate of incorporation shall be conclusive evidence, except as against the State, that all conditions precedent required to be performed by the incorporators have been complied with and that the corporation has been incorporated under this Act.” (Ill. Rev. Stat. 1987, ch. 32, par. 2.15.)

However, no Illinois decision has adopted Fletcher’s conclusion. See also Putzy, which implicitly assumes that the concept of the de facto corporation is still operable under Illinois law.

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

Affirmed.

DiVITO, P.J., and BILANDIC, J., concur.

      The November 3, 1988, order did not mention defendant’s res judicata argument. Since this matter was not raised at the trial and is not raised by defendant on appeal, we need not consider the issue.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY BRYANT, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—0402
    Opinion filed September 4, 1990.

      Michael J. Pelletier and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Michael W. Bolger, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Larry Bryant was convicted by a jury of home invasion, armed robbery and aggravated battery and acquitted of attempted murder. The circuit court held that the other offenses merged into home invasion, entered judgment on that charge only and sentenced defendant to 16 years’ imprisonment.

On appeal, defendant alleges that (1) the jury’s verdict was the result of prejudicial error arising from the admission of the complaining witness’s testimony which revealed defendant’s past criminal record; (2) “staged” photographs of the crime scene taken several days after the alleged home invasion took place constituted prior consistent statements of the complaining witness and were therefore inadmissible hearsay; and (3) the testimony of the complaining witness was unreliable as a matter of law, creating a reasonable doubt as to his guilt. We affirm.

At trial, the victim, Georgia Walker, testified that in the late evening of May 1, 1987, she was playing cards in her home with two female neighbors. During the game, which lasted about four or five hours, until one or two o’clock in the morning, Walker drank three “tall” cans of beer. (She explained that since one of the women did not drink, two of them split a six-pack in half.) Before the neighbors left, Walker gave one of them her own and another neighbor’s rent payments and put the remaining $34 into the pocket of her four-year-old son’s jacket, which was lying on the couch. Before retiring to bed, she left the kitchen window slightly open and made certain the back door was locked from the inside with a chain. Outside it was raining.

Sometime during the night, Walker got up from bed, went into the bathroom and fell asleep while sitting on the toilet. She was awakened by the presence of a man whom she immediately recognized and said, “Larry, what are you doing here?” The man flashed a knife and said, “Give me your money, bitch.” She answered, “What money?” and he started stabbing her in the head-on her forehead, over her eye and behind her ear. When she raised her hands to protect her face, he stabbed her in the stomach. At this time, Walker was still sitting in shock on the toilet and thought she was “daydreaming.” When she looked up, she saw another figure who appeared to be a woman wearing a black down coat coming up the stairs. After the woman turned around and went back down, Walker heard a female voice from downstairs saying, “Baby, I found it.” At this point the man left the bathroom doorway and went down the steps.

Walker then stood up, looked in the mirror and, after noticing that she was covered with blood, knew that she was not “daydreaming.” She immediately ran to her bedroom and then downstairs to the kitchen to call the police, but both telephone lines were dead. Realizing that the wires had been cut, she ran next door through the rain and yelled out to her neighbor to call the police.

Back inside her house, Walker noticed that the kitchen window was open wider than when she went to bed, that there was a puddle of water in the middle of the kitchen floor with wet footprints around it, and that the back door was slightly ajar. Upon a later inspection, she found that the screen of the kitchen window had been cut.

Chicago police officer Nancy Riggio testified that when she arrived at the house in the early morning hours of May 2, 1987, she found Walker bleeding and in a state of hysterics. At that time, Walker told the officer that she heard a noise in the night and when she went out into the hallway outside her bedroom to investigate, she was accosted by a man she immediately recognized as Larry, who demanded her money and began stabbing her. After talking to the police, Walker was taken to the hospital, where she received stitches for the stab wounds to her head.

At the time of the incident, according to Walker, she was living with her four-year-old son in a row house managed by the Chicago Housing Authority. The living room and kitchen were on the first floor, and two bedrooms and a bathroom were on the second. The back door had a security gate which did not lock. A small window next to the door was protected by burglar bars, but the main kitchen window was not. Whenever it rained and the kitchen window was open, water would come in and form a pool in the middle of the floor. Walker habitually left the light turned on in the upstairs bathroom throughout the night for the benefit of her child. The light, a light bulb located in the middle of the ceiling about a couple of feet forward from the toilet, was shining on the night she was attacked.

Defendant, whom Walker recognized as her assailant, had been her boyfriend from 1981 to 1983, when he went to prison. Upon his return in August 1986, they resumed their relationship briefly for a few months, until Walker brought it to an end in October and took back the key to her house. Near the time of the incident, defendant still visited Walker occasionally, but had to be admitted by someone at the door.

The defense called two witnesses. Carolyn Jackson, director of food services at the Community Care Nursing Home, testified that defendant had a good reputation for honesty at the nursing home, where he was employed as a cook from November 1986 to February 1987. Sarah Bryant, who had been married to defendant about eight months at the time of trial, testified that on the night of the incident she was at home with him and her three children. They ate, watched television and went to bed. Some discrepancy exists concerning the night about which she actually testified, because defense counsel examined her about May 2, 1987, the night after the attack, whereas the prosecutor cross-examined her about May 1, 1987, the eve of the attack. At the time of trial, she was on probation for aggravated battery for beating and tying up a woman inside the woman’s home. Defendant did not testify.

Defendant first alleges that Walker’s two references to his prior stay in prison deprived him of a fair trial. During Walker’s direct examination, defense counsel made a motion at sidebar asking the State not to elicit any testimony from her about defendant’s prior prison sentence. The following colloquy took place:

“MR. CUDA [Defense attorney]: I’d like to make sure that counsel does not in any way suggest that Mr. Bryant was in the pen after 1981.
MS. CESARIO [Assistant State’s Attorney]: If I used hiatus [sic] in the motion, I am not going to say anything now. I know what the rules are.
MR. CUDA: I hope the wind won’t let that slip out.
THE COURT: But I am instructing Ms. Cesario not to inquire in any way as to that — bring that out, and if it slips out I can’t help that, we will have to deal with it then.”

The assistant State’s Attorney then resumed questioning Walker about her relationship with defendant. After the eighth question, the examination continued as follows:

“Q. And prior to May 2, 1987, did Mr. Bryant ever come to your house?
A. Yes.
Q. Now, the times he came to your house, did [he] have a key at those times?
A. No.
Q. Did he have a key?
A. I gave him a key.
Q. Had you given him a key?
A. After we resumed our so called relationship when he got out of prison.
Q. In August of 1986?
A. Yes.”

Defense counsel did not object. The following exchange took place during Walker’s cross-examination:

“Q. [Defense attorney]: Now, you told us earlier that you and Larry were boyfriend and girlfriend for some length of time, is that right?
A. Yes.
Q. Now, Larry left you, isn’t that right?
A. He what?
Q. Larry left you, isn’t that right?
A. Yes. He went in the penitentiary. Yes.”

The State argues that defendant waived his right to raise the admission of the offending statements on appeal. In order to preserve an error for review, a defendant must both object to the error at trial and raise the error in a post-trial motion. (People v. Enoch, 122 Ill. 2d 176, 185-90, 522 N.E.2d 1124, 1129-31, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) In People v. Trefonas (1956), 9 Ill. 2d 92, 98, 136 N.E.2d 817, 820, the supreme court explained the waiver rule as it pertains to evidentiary objections as follows:

“An objection to the admission of evidence, to be available, must be made in apt time, or it will be regarded as waived. The general rule is that the admission of incompetent evidence must be objected to, if at all, at the time of its admission. *** Failure to make proper and timely objection to the admission of evidence claimed to be incompetent or otherwise objectionable or to move to strike it out after its admission * * * generally constitutes a waiver of the right to object and cures the error, if any. * * * A party cannot sit by and permit evidence to be introduced without objection and upon appeal urge an objection which might have been obviated if made at the trial.”

In Trefonas, defendant failed to make any objection at trial to evidence that on appeal he urged was incompetent hearsay. Although here defendant complained of the offending testimony in his motion for a new trial and also raised an objection to its admission before it surfaced during Walker’s direct examination, he made no contemporaneous objection to it once it came out. In People v. Caballero (102 Ill. 2d 23, 464 N.E.2d 223, cert, denied (1984), 469 U.S. 963, 83 L. Ed. 2d 298, 105 S. Ct. 362), where defense counsel made a contemporaneous objection to certain allegedly improper statements the prosecutor made during closing arguments, the supreme court held that defendant failed to preserve any alleged error arising from those statements, because, despite defense counsel’s objection, the judge did not rule on the objection, nor did counsel request a ruling or call the judge’s attention to the fact that he did not rule.

In the present case, the trial judge all but invited defense counsel to object when during the sidebar he told counsel that “if it slips out *** we will have to deal with it then.” By sitting by in silence when Walker referred to defendant’s criminal record during her direct examination by the State, defense counsel prevented the trial judge from ruling on his earlier objection in the context of her testimony. Moreover, with respect to Walker’s reference to the penitentiary which surfaced during her cross-examination, although her answer went beyond a simple “yes,” it was responsive to a question that was both provocative because it implied that defendant chose to leave her of his own free will and ambiguous because it was not specific as to which of two times they terminated their relationship. We find that in this situation, “defendant’s only complaint can be with the question posed and not the answer given” (People v. Robinson (1990), 197 Ill. App. 3d 1012, 1016); we therefore consider this alleged error waived.

Even if it were properly preserved, however, defendant’s failure to object to Walker’s testimony during her direct examination would work against him as well. Numerous cases in Illinois dealing with a potentially damaging statement inadvertently uttered by a State witness hold the error to be harmless as long as the trial court sustains defendant’s objection and strikes the testimony from the record with a cautionary instruction to the jury to disregard it. (E.g., People v. Mays (1988), 176 Ill. App. 3d 1027, 532 N.E.2d 843; People v. Guzzardo (1979), 69 Ill. App. 3d 252, 387 N.E.2d 896; People v. Lindsay (1978), 67 Ill. App. 3d 638, 384 N.E.2d 793; People v. Therriault (1976), 42 Ill. App. 3d 876, 356 N.E.2d 999; People v. Bartels (1975), 30 Ill. App. 3d 551, 333 N.E.2d 457.) Especially instructive is People v. Precup (1977), 50 Ill. App. 3d 23, 365 N.E.2d 1007, aff’d (1978), 73 Ill. 2d 7, 382 N.E.2d 227, in which the court held it was harmless error to admit a police officer’s unsolicited testimony about the defendant’s criminal record, where the trial court sustained defendant’s objection, but counsel refused the court’s offer to admonish the jury. Here also, if defendant chose to stand by in silence while the complaining witness spoke of his criminal past, he must similarly keep his silence before the reviewing court. We also note that in this case we are not dealing with a courthouse-wise police officer who may be chargeable with a heightened awareness of the danger of making idle references to the criminal history of the accused. See People v. Goodwin (1979), 69 Ill. App. 3d 347, 349, 387 N.E.2d 433, 435; People v. Curry (1975), 25 Ill. App. 3d 637, 640, 323 N.E.2d 778, 780.

Defendant relies on People v. Curry (1975), 25 Ill. App. 3d 637, 323 N.E.2d 778, in which the trial judge overruled an objection to an unresponsive answer of a police officer during cross-examination indicating that the defendant was being sought for rape. Curry offers no assistance in the case at bar, for here a lay witness gave a responsive answer. Moreover, unlike in this case, the State in Curry conceded that a mistrial would be appropriate if what defense counsel elicited was so. prejudicial that a limiting instruction could not cure it. Here, since defense counsel raised no objection at trial which would have given the court an opportunity to admonish the jury, defendant effectively waived the alleged error.

Defendant maintains that there was error in the introduction of photographs of the victim’s home which were not taken on the date of the offense. Defendant particularly complains of three photographs: one of the telephone lines in the victim’s living room depicting how it looked before they were cut; one depicting the victim’s son’s jacket lying on the sofa the way it was positioned before the break-in; and one showing a partially opened kitchen door the way the victim found it after the break-in. According to defendant, the pictures should have been excluded because: (1) they were prior consistent statements of the complaining witness about the condition, location and position of physical objects in her home on the night in question (People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41; People v. Davis (1984), 130 Ill. App. 3d 41, 473 N.E.2d 387); and (2) they were introduced for the purpose of advancing the theory of the State’s case rather than depicting physical facts at the time of the crime (People v. Crowe (1945), 390 Ill. 294, 61 N.E.2d 348; People v. Andrews (1982), 105 Ill. App. 3d 1109, 435 N.E.2d 706).

The decisions in Emerson and Davis set forth the general rule that out-of-court statements may not be introduced to corroborate the testimony of a witness at trial. Prior consistent statements may be admitted only for the purpose of rehabilitating a witness charged with recent fabrication or motivation to testify falsely. At issue in Emerson was a prior identification of the defendant by a State witness. In Davis the defense complained of nine instances wherein various witnesses repeated the victim’s account of an armed robbery. Neither decision concerned the admissibility of photographs.

The State accurately points out that the chief requirements for introducing photographs into evidence are their relevancy and accuracy. (People v. Myles (1985), 131 Ill. App. 3d 1034, 1042, 476 N.E.2d 1333, 1339.) An accurate photograph is one which is “identified by a witness as a portrayal of certain facts relevant to an issue and [is] verified by such witness on personal knowledge as a correct representation of these facts.” (People v. Beasley (1982), 109 Ill. App. 3d 446, 452, 440 N.E.2d 961, 965.) Thus, according to the State, “the salient inquiry is not when the photographs were taken but, rather, they are accurate.” In People v. Lazenby (1949), 403 Ill. 95, 85 N.E.2d 660, cert, denied (1952), 344 U.S. 842, 97 L. Ed. 655, 73 S. Ct. 56, the supreme court held that a photograph of an arson scene taken a day after the fire was admissible even though the rags that served as the “incendiary torch” had been removed, then later' replaced by a fireman. One of the main considerations for the court was that the fireman had replaced the rags in approximately the same position in which he had found them so that the change in conditions and rearrangement of objects were insufficient to affect the accuracy of the photograph.

In the present case, the victim testified during direct examination that the photographs were true and accurate representations of the various aspects of the crime scene as they appeared on the night of the robbery. Also, defense counsel cross-examined the victim regarding the conditions under which the photographs were taken. Walker agreed that they were taken “sometime later” when law enforcement personnel made a special trip to her home, and said that the photographer told her to open the kitchen door “similar to the way it was opened on the night or the morning of May 2.” Since the State laid a proper foundation for the introduction of the photographs and the defense took advantage of the opportunity to cross-examine, we conclude that the photographs were properly entrusted to the jury for an evaluation of their probative value.

Defendant relies on People v. Crowe (1945), 390 Ill. 294, 303-04, 61 N.E.2d 348, 353, for the proposition that “[pjhotographs of a scene or objects which have been posed or arranged by one party, for the purpose of taking the photograph, in the way or manner sought to be shown are not admissible.” In that case, the court concluded that the defendant sought to introduce a posed photograph to support the theory of his defense. Here, to the contrary, the State introduced the photographs not for the purpose of advancing any theory, of linking defendant to the crime, for example, but simply to show that physical facts as they existed prior to and after the time of the crime. Accordingly, we find that the photographs were properly admitted.

Defendant also advances People v. Andrews (1982), 105 Ill. App. 3d 1109, 435 N.E.2d 706, as a recent restatement of the rule in Crowe. Although the Andrews court quoted the rule from Crowe, it subsequently distinguished the two cases because in Crowe defendant offered a photograph of the “offense” (of himself taken at a later date at the site of the crime, depicting the impossibility of his involvement), whereas in Andrews the State offered a photograph of defendant taken during his confession, demonstrating how he held down the murder victim. The Andrews court concluded that the State properly offered the photograph as a visual aid to the jury in understanding the testimony of the detective to whom the defendant confessed. The court also held that the photograph satisfied the basic conditions of admissibility, relevancy and accuracy, because it accurately portrayed what the detective saw. In this respect, Andrews lends support to the State in the present case, wherein the photographs, albeit taken at a later date, accurately portrayed the victim’s house as she saw it surrounding the time of the burglary.

Finally, defendant contends that his conviction cannot stand because the victim’s testimony was unreliable as a matter of law. It is true that the entire case against defendant hinges on the testimony of Walker, who knew him at least six years prior to the attack, had been romantically involved with him and was in a semiconscious state when the attack occurred. However, as stated in People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472 (quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89), cert, denied (1990),_U.S__, 111 L. Ed. 2d 798, 110 S. Ct. 3290, in reviewing the sufficiency of the evidence, “[t]he relevant question 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.” Applying this standard to the evidence at hand, we defer to the verdict of the jury and affirm defendant’s conviction.

Affirmed.

DiVITO, P.J, and BILANDIC, J., concur.