author: JUSTICE MURRAY

text:
    THE HERTZ CORPORATION, Plaintiff-Appellant, v. RODNEY L. GARROTT et al., Defendants-Appellees. — THE HERTZ CORPORATION, Plaintiff-Appellee, v. JOSEPH FERRARO et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 1—90—1045, 1—90—1107 cons.
    Opinion filed December 14, 1990.
    — Rehearing denied February 8, 1991.

      Wildman, Harrold, Allen & Dixon, of Chicago (Kevin T. Martin, Ruth E. VanDemark, and Anthony G. Hopp, of counsel), for The Hertz Corporation.
    Walwyn M. Trezise, of Chicago, and Lindquist & Vennum, of Minneapolis, Minnesota (Charles R. Weaver, Jr., of counsel), for Joseph Ferraro and Anita Whitehead.
    Sidney Novit & Associates, Ltd., of Chicago (Kent Novit, of counsel), for appellee Folarin J. Gboyega.
   JUSTICE MURRAY

delivered the opinion of the court:

Both the plaintiff, The Hertz Corporation (Hertz), and defendants, Joseph Ferraro (Ferraro) and Anita Whitehead (Whitehead), appeal from a final order of the circuit court of Cook County in a complaint for declaratory judgment that had been filed by Hertz. For reasons that we shall discuss, we reverse the order of the trial court and remand for further proceedings.

On November 18, 1988, Hertz filed a complaint for declaratory judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 701) alleging that on October 4, 1986, Angelique R Garrott rented an automobile from them at one of their locations in Chicago, Illinois, and that at approximately 3 a.m. on October 5, 1986, Angelique’s husband, Rodney L. Garrott, was involved in an automobile accident near 2606 North Halsted in Chicago while he was driving the rental vehicle. The complaint stated that Rodney Garrott collided with a vehicle which was owned by the Yellow Cab Company, which was being driven by Folarin Gboyega and which had been carrying two passengers, Joseph Ferraro and Anita "Whitehead. Also as a result of the collision, two unoccupied parked vehicles, one owned by Sharon Lampkin and one owned by Luigi Serra, were allegedly struck.

The complaint, which named all of the above-mentioned parties as defendants, went on to state that Ferraro and "Whitehead had filed a personal injury action against the Garrotts, Gboyega, and the Yellow Cab Company and that the Yellow Cab Company had, in turn, filed a third-party action against the Garrotts and Hertz; that Gboyega had filed a personal injury action against Rodney Garrott and Hertz; and that the Yellow Cab Company and Sharon Lampkin had filed property damage claims against the Garretts and Hertz. Hertz then asked the trial court to declare that Hertz was not contractually obligated to defend any claims brought against Angelique and Rodney Garrott arising from the October 5, 1985, automobile accident and that the provisions of the rental agreement with Angelique Garrott, which would have obligated Hertz to provide indemnity in the amount of $300,000/$100,000 and $25,000 in property damages, were voided because Angelique Garrott breached the rental contract by allowing Rodney to operate the rental vehicle while he was (a) under the age of 25 years, (b) an unlicensed driver, and (c) under the influence of alcohol.

Furthermore, Hertz, which was a certified self-insurer under the Illinois statutes (Ill. Rev. Stat. 1987, ch. 951/2, par. 9 — 101), asked the trial court to interpret the provisions of sections 9 — 103 and 9 — 105 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, pars. 9 — 103, 9 — 105) and declare that its statutory obligation to indemnify Rodney and Angelique Garrott for any and all claims arising from the October 5, 1985, accident was limited to $50,000 in the aggregate.

Although the Garrotts were apparently served with notice of the action, they did not answer or appear to testify at the trial on this declaratory judgment action. The remaining parties stipulated that Angelique Garrott allowed Rodney Garrott to use the rental vehicle and then evidence was presented which indicated that Rodney Garrott was born on March 3, 1964, and that he was unlicensed to drive by the State of Illinois because his license had been suspended since 1985. Also, witnesses presented testimony to establish that Rodney Garrott had been intoxicated while he was driving the rental vehicle and became involved in the accident.

Based upon a finding that, at the time of the accident, Rodney had been operating the rental vehicle while intoxicated, the trial court ruled that the rental contract between Angelique Garrott and Hertz had been breached and that Hertz was under no contractual obligation pursuant to the rental agreement to provide indemnity to third parties for personal injury or property damages arising from the accident. The court then went on to decide that Hertz’s statutory obligation to indemnify third parties was not limited to $50,000 in the aggregate, but rather, that the sum of $50,000 was available to each injured party.

After their motions to reconsider were denied, Ferraro and Whitehead filed an appeal on April 5, 1990, and Hertz filed an appeal on April 11, 1990. Hertz argues that the plain language of the statute, its legislative history, as well as common sense and public policy, require reversal of the trial court’s declaratory judgment with respect to the interpretation of section 9 — 103 of the Illinois Vehicle Code. Ferraro and Whitehead, on the other hand, argue that the trial court’s ruling that the rental agreement was voided was against public policy, and they urge this court to rule that the amount of indemnification available to the injured parties is that which would have been provided under the rental agreement. In the alternative, they ask this court to affirm the court’s interpretation of Hertz’s statutory obligation. Gboyega, who has only filed a reply brief with this court, argues only that the trial court’s interpretation of section 9 — 103 should be affirmed. None of the other named defendants, including the Garrotts, have appeared or participated in this appeal.

We note, first of all, that the issue of Hertz’s duty, if any, to defend the Garrotts in the underlying actions filed by Ferraro, Whitehead, Gboyega, Yellow Cab Company, and Sharon Lampkin, which are apparently still pending in the lower court, was not addressed by the trial judge or by any of the parties in this appeal. The only issue addressed in the lower court and in the appeal before this court is whether Hertz has any duty to indemnify the Garrotts, either under the contract or by virtue of statutory provisions, in the event that in the underlying actions, the Garrotts are found liable and judgments are entered against them. It appears that the trial court never considered the ripeness of the issue of indemnification. However, we conclude that the order of the trial court on this issue was premature and requires that the order be reversed and the cause be remanded for further proceedings.

In Illinois a cause of action on an indemnity agreement does not arise until the indemnitee either has a judgment against him or her for damages, or has made payments or suffered actual loss. (Gerill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill. 2d 179, 199, 538 N.E.2d 530.) Nothing in the record of this case discloses that any of the parties, at this juncture, have made payments or suffered any actual loss with respect to the underlying pending lawsuits. The record on appeal contains only: (1) Hertz’s complaint or declaratory judgment; (2) an answer filed by Ferraro and Whitehead; (3) a transcript of the court proceedings, wherein the trial court rendered its findings and opinion; (4) a copy of the order entered February 13, 1990; (5) motions to reconsider by Hertz and Ferraro and Whitehead; (6) the order denying the motions to reconsider; and (7) the notices of appeal. Until judgments are entered in the underlying causes of action or Hertz can demonstrate that it has suffered an actual loss, a cause of action, seeking a declaration of the amount of potential indemnification required by contract or imposed by law, does not accrue.

Another illustration of the prematurity of the trial court’s decision and further support of our decision to reverse the order of the trial court is the fact that the trial court failed to consider the issue of Hertz’s duty to defend the Garrotts in the underlying actions. The duty to defend is much broader than the duty to indemnify, so that an insurer may be obligated to defend an action even though it may not, ultimately, be obligated to indemnify the insured. (Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 514 N.E.2d 150.) The duty to defend an action is determined solely from the allegations of the underlying complaint, and a refusal to defend an action will not be justified unless it is clear from the face of the complaint that the allegations fail to state facts which bring the case within, or potentially within, the scope of coverage. (Western Casualty & Surety Co. v. Adams County (1989), 179 Ill. App. 3d 752, 534 N.E.2d 1066.) The potentiality of liability is what gives rise to the duty to defend, even though there may not be a high probability of recovery under the terms of the contract. Tews Funeral Home, Inc. v. Ohio Casualty Insurance Co. (7th Cir. 1987), 832 F.2d 1037,1042.

In the present case there is no evidence that the trial court considered, independently, Hertz’s duty to defend the Garrotts. Furthermore, certain facts of this case cast doubt on Hertz’s ability to abdicate its duty to defend or at least raise some factual questions which must be resolved by the trial court. For instance, we question whether the trial court should have allowed Hertz to stipulate in the declaratory action, against the insured’s/indemnitee’s interests, that Angelique Garrott permitted her husband to drive the rental vehicle. To do so, in effect, allowed Hertz to stipulate to an element of proof in its allegation that the rental contract had been breached, negating its duty to defend in the underlying actions. Furthermore, there is no evidence in the appellate record to show that the Garrotts were served with notice and there was even some indication, at oral argument on this appeal, that Rodney Garrott might be in the service of this country, which would affect the trial court’s ability to take action against him.

For the reasons cited above, we believe that the order of the trial court must be reversed and remanded for further proceedings. We note, however, that upon the completion of any such proceedings and upon the submission of a supplemental record demonstrating the resolution of the pending underlying lawsuits, this court would consider the merits of the issues raised in this appeal, based upon the briefs already submitted to this court.

Reversed and remanded.

LORENZ, P.J., and GORDON, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
      In re MARRIAGE OF CHARLENE K. FERGUSON, f/k/a Charlene K. Hoferle, Petitioner-Appellee, and HAROLD W. HOFERLE, Respondent-Appellant.
    First District (5th Division)
    No. 1—90—1441
    Opinion filed December 14, 1990.
    Barclay, Damisch & Sinson, Ltd., of Chicago (John W. Damisch and David P. Pasulka, of counsel), for appellant.
    Ben Goldwater and Ruth E. Goldwater, both of Goldwater & Associates, of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Harold Hoferle (Harold), respondent, appeals from a trial court’s order entered in a domestic relations case involving the modification of child support payments. The petitioner is Harold’s former wife Charlene Ferguson, f/k/a Charlene Hoferle (Charlene).

The facts are not disputed. On January 3, 1985, a judgment for dissolution of marriage was entered dissolving the marriage of Harold and Charlene. One child was born as a result of the marriage. Charlene was awarded custody of the parties’ child, subject to Harold’s right to reasonable visitation. On February 19, 1989, Charlene filed a petition for modification of the provisions of the dissolution decree relating to child support. Harold filed a petition for specified visitation rights. On April 18, 1990, a hearing was held on the petitions. The hearing disclosed that Harold had take-home pay of $2,869 per month. The parties agreed that the sum of $573.80 per month was appropriate for the support of the child and that said amount was consistent with the guidelines for child support set out in the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(1).) However, the evidence also revealed that Harold annually receives approximately a 6% cost of living raise. Charlene asked the court to provide for an automatic increase in child support based upon Harold’s annual cost of living increase. Following the hearing, the trial judge entered an order that among other matters provided that Harold pay Charlene for the support of their child “the sum of $573.80 per month, or 20% of his net take-home pay, whichever is greater.”

Harold has filed a timely appeal. The only issue on appeal is whether the trial court’s order violated the provisions of the Illinois Marriage and Dissolution of Marriage Act relating to child support payments and petitions to modify such payments. (Ill. Rev. Stat. 1989, ch. 40, pars. 505(a)(5), 510(a).) Harold argues that the trial court’s order of April 18, 1990, violates those provisions. Charlene argues they do not. For the following reason, we reverse the trial court’s order as it relates to child support and remand for a further hearing.

The provisions of the Illinois Marriage and Dissolution of Marriage Act applicable to this appeal provide in pertinent part:

“The final order in all cases shall state the support level in dollar amounts.” (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(5).)
“(a) Except as'otherwise provided *** the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification and only upon a substantial change in circumstances.” Ill. Rev. Stat. 1989, ch. 40, par. 510(a).

Harold first argues that obligating him to pay “the sum of $573.80 per month, or 20% of his take-home pay, whichever is greater,” violates the aforecited provision of section 505(aX5) of the Illinois Marriage and Dissolution of Marriage Act, which requires orders in child support payments to be in “dollar amounts.” (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(5).) Charlene argues that placing the floor of Harold’s payment at $573.80 per month satisfies that provision.

A percentage award for child support with a fixed minimum was approved by this court in Smith v. Smith (1979), 78 Ill. App. 3d 80, 397 N.E.2d 50. The court specifically held that the trial court did not abuse its discretion by including the percentage element in its child support award. (Smith v. Smith (1979), 78 Ill. App. 3d 80, 397 N.E.2d 50.) Additionally, a percentage maintenance award was upheld by this court in In re Marriage of Parello (1980), 87 Ill. App. 3d 926, 409 N.E.2d 461. However, these cases were both decided prior to the amendment of the statute by the enactment of Public Act 84 — 888, effective September 23, 1985, which requires the final order to state the support level in dollar amounts. Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(5).

The first rule of statutory construction in an effort to determine legislative intent is the the words of the statute itself. “Where the intention of the legislature is clearly expressed, the plain meaning of the statute must be given effect.” (Finley v. Finley (1980), 81 Ill. 2d 317, 326, 410 N.E.2d 12, 16.) The aforecited provision of section 505(a)(5) of the Illinois Marriage and Dissolution of Marriage Act plainly and simply states that a child support order must state support obligations in a dollar amount, not part in dollars and part in percentages of pay. A court cannot read into a statute words which are not within the plain intention of the legislature as determined from the statute itself. The court can neither restrict nor enlarge the plain meaning of an unambiguous statute. Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129, 302 N.E.2d 313.

Charlene is requesting this court to write into the unambiguous language of the applicable statute words that give an enlargement of the statute. Neither rules of statutory construction nor case law authorizes that. Further, an Illinois appellate court has held that the cited section requires a final order to “state the support level in dollar amounts.” (In re Marriage of Wassom (1988), 165 Ill. App. 3d 1076, 1082, 519 N.E.2d 1147.) Accordingly, we must reverse the order as it relates to child support.

Harold also argues that any future modification of support payments must be obtained by filing a petition as required by section 510(a) of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) We do not address this issue in this appeal in light of our action reversing the involved order. However, as pointed out in Charlene’s brief, there are cases not applicable to this case where a trial court may modify support payments without filing a petition for modification. Blisset v. Blisset (1988), 123 Ill. 2d 161, 526 N.E.2d 125.

For the above reason, the trial court’s order is reversed as to the issue of child support and the cause is remanded for further proceedings.

Reversed and remanded.

LORENZ, P.J., and GORDON, J., concur.


author: JUSTICE EGAN

text:
    RAYMOND YOUNG, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF MOUNT PROSPECT et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—3033
    Opinion filed December 14, 1990.

      Stanley H. Jakala, of Berwyn, for appellant.
    Glass, Hill, Dallmeyer & Roth, Ltd., of Northbrook (Everette M. Hill, Jr., of counsel), for appellees.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Raymond Young (Young), filed a complaint for administrative review seeking reversal of a decision by the defendant, the Board of Police and Fire Commissioners of the Village of Mount Prospect (the Board). The decision denied the plaintiff’s request for an evidentiary hearing for the purpose of obtaining testimony from the persons who evaluated him for potential promotion from firefighter to fire lieutenant in the Mount Prospect fire department. The circuit court affirmed the decision of the Board.

Young, a 15-year veteran of the fire department, applied for a promotion to lieutenant. In accordance with its rules, the Board set up a prescreening process to select eight candidates who would be eligible for further consideration for promotion. The prescreening process required an applicant to pass psychological examinations and also a “fire ground simulation.” Once this pass/fail portion of the process was complete, a successful applicant also needed to achieve minimum scores of 80 points (of a possible 100) on two written tests: a standard knowledge test and a local knowledge test. If these minimum scores were obtained, the applicant then received a “merit and efficiency rating” based on seven differently weighted factors: emergency performance, leadership part I, leadership part II, job knowledge, teamwork, initiative and written communication. Job knowledge, the Board informs us, is an objective rating based upon departmental records as to whether the firefighter has received formal training for the listed job specialty. Three supervisors independently evaluated the candidate’s abilities in the remaining six areas, and their evaluations produced an average score in each area, which was then multiplied by a “weighting” factor. The sum of these weighted scores was the candidate’s merit and efficiency rating. The results of the standard knowledge test and the local knowledge test were also weighted and then added to the merit and efficiency rating to produce each candidate’s total score.

Young did not receive one of the top eight total scores and, therefore, was not included on the list of those eligible for further consideration for promotion. Young appealed to the Board, stating that “[t]he issue is whether chief’s points [the merit and efficiency rating] should have been utilized in the evaluation of the firefighters *** competing for the firefighter lieutenant’s position.” Young raised nine specific objections to the Board’s evaluation process and his particular ratings; these objections centered on two areas of the merit and efficiency rating: job knowledge and teamwork. Young asked the Board to stay further consideration of the candidates for promotion until it considered his appeal, to eliminate the me of merit and efficiency scores (“chiefs points”), ex cept for seniority points based solely on length of time in service to the department, and to recalculate the candidates’ total scores using raw scores rather than weighted ones. The Board reviewed the appeal and, in a written response, rejected each of the nine arguments raised.

The plaintiff’s complaint for administrative review alleged that before the Board entered its decision, the plaintiff’s attorney had “requested that there be a hearing scheduled for the purpose of receiving testimony to review all of the testing procedures as reflected in the [score sheets], and particularly the procedure relating to teamwork.” The complaint further alleged that, “in lieu of arranging for a hearing for purposes of taking testimony to determine the validity of the testing procedures, *** the [Board] rendered their decision.” (We note that no such request, in the form of a letter, transcript of proceedings or otherwise, appears in the record on appeal. At oral argument before this court, however, the Board’s attorney acknowledged that Young’s attorney did request a hearing.) During argument before the circuit court, Young’s attorney argued that

“the subjectivism [of the raters] resulted in a lower score for my client in that my client should have the right to have a hearing to question the raters on how they achieved these scores because it doesn’t seem that these scores are indicative of his abilities as a firefighter.” (Emphasis added.)

Later, the attorney stated, “I’m not asking for anything more than [a hearing]. I want the opportunity to confront the raters.” (Emphasis added.) The trial judge determined that, absent some preliminary showing of bias or prejudice, the Board lacked the authority to conduct a hearing in order to inquire into the bases for the opinions reached by the persons who evaluated Young. Also, the judge concluded that, based on the record, the system used by the Board to evaluate candidates for promotion was not improper; he, therefore, affirmed the Board’s decision. In his brief in this court, the plaintiff has set forth the issues to be whether the Board’s denial of a hearing for the purpose of receiving testimony to review all the testing proceedings undertaken by the Board was against the manifest weight of the evidence and was contrary to law. He also argues that the denial of the hearing constituted a violation of procedural due process and that failure to consider Young’s seniority in service to the department, rather than in different job specialties, did not comply with the requirements of the statute (Ill. Rev. Stat. 1989, ch. 24, par. 10-2.1-15).

The Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 1— 1 — 1 et seq.) provides the following statutory authorization for the Board regarding promotions:

“The board, by its rules, shall provide for promotion in the fire and police departments on the basis of ascertained merit and seniority in service and examination ***. A11 examinations for promotion shall be competitive among such members of the next lower rank as desire to submit themselves to examination.” (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—15.)

Section 12 of chapter 4 of the Board rules provides for appeals to the Board by unsuccessful candidates:

“If a promotional candidate wishes to appeal the results of any element of the testing process, written appeals must be made to the [Board] within 10 days of the posting of the eligibility test. * * *
The written appeal must be written to the Secretary of the Board or his designated representative and must plainly state:
(a) The phase of the promotional process which is being appealed.
(b) The reason(s) for the appeal.
Appeals will be reviewed at the [Board’s] next regularly scheduled meeting. The [Board] shall issue a written response or may conduct such further investigations as it deems appropriate. However, all appeals shall be disposed of within 120 days of the original date of appeal.” (Emphasis added.)

The statute empowers the Board to make rules regarding the promotion process. The Board’s rule provides that the Board, in its discretion, may conduct an investigation. We believe, contrary to the argument of the Board, that this investigatory power includes the power to conduct the hearing sought by the plaintiff. (Cf. Beazley v. Wosik (1988), 119 Ill. 2d 437, 519 N.E.2d 468 (holding that in the absence of any statute, ordinance or rule creating a right to a hearing, the respondent, who was not hired as a probationary police officer on the basis of a psychological evaluation, had no right to a hearing before the personnel board on his qualifications for the position).) The Board’s rule states, “The [Board] shall issue a written response or may conduct such further investigations as it deems appropriate.” (Emphasis added.) Thus, the question becomes whether the evidence before the Board required a hearing and that denial of a hearing was an abuse of discretion; or, put another way, whether the denial was against the manifest weight of the evidence. See Jefco Laboratories, Inc. v. Carroo (1985), 136 Ill. App. 3d 793, 483 N.E.2d 999.

As the trial judge found, there was no evidence offered that the persons who evaluated Young were biased or prejudiced against him in any way. In fact, the plaintiff concedes this point, arguing that the hearing was necessary to discover whether any such bias or prejudice existed. Moreover, the subjective nature of the evaluations of Young by the raters does not give rise to a presumption of bias or prejudice. Indeed, Illinois courts have recognized the legislature’s intent to leave such matters as merit and efficiency ratings to the sound discretion of the Board. (Zuelke v. Board of Fire & Police Commissioners (1979), 79 Ill. App. 3d 1080, 398 N.E.2d 1080.) As the Illinois Appellate Court for the Second District stated in Hauri v. Batzel (1979), 71 Ill. App. 3d 164, 166, 389 N.E.2d 257:

“While it is true *** that it would be difficult for the plaintiff to ascertain actual prejudice, even if it existed, from the anonymous basis on which the ‘Chief’s Rating’ was developed, this in no way indicates that there was any prejudice or partisanship and the mere possibility of such prejudice or partisanship cannot give rise to a cause of action, since that possibility is always present in human affairs. The statute does not require the detachment of a computer in making promotions for police officers, and it is perhaps just as well that in making such a decision we do not throw away judgments based on human experience and personal observations.” (Emphasis in original.)

In the absence of any evidence of bias or prejudice in the evaluations of Young, we judge that the Board did not err in denying Young an evidentiary hearing. We would add an additional observation. Acceptance of the plaintiff’s argument would have a calamitous effect on civil service promotional procedures. Any disappointed applicant for promotion would be entitled to a hearing at which he could examine all persons who made subjective evaluations of his performance, without any preliminary proof of bias or error on the part of the evaluators in the Micawberish expectation that some such proof would “show up.”

The plaintiff poses the same argument on two other legal grounds: the refusal to grant a hearing was contrary to law and was a denial of due process. It would unduly lengthen this opinion to discuss these additional theories. It is enough to say that the same reasons we have already advanced support our rejection of the plaintiff’s argument based on those alternative grounds.

The plaintiff’s last contention is that the Board erred in considering factors other than years of service in determining seniority in service. The statute requites that promotions be based, in part, on “seniority in service.” (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—15.) Neither the statute nor the Board’s rules, as far as we can determine, define “seniority in service.” The Board’s rules do, however, limit eligibility for promotion to those persons who “have completed their probationary period *** prior to the date on which the examination [was] conducted and *** have completed one full year of service in the rank held after completing said probationary period.” The record provides a summary sheet indicating Young’s scores for the seven areas comprising “merit and efficiency.” This rating sheet shows that a candidate is awarded points for length of service in various job specialties. For example, a candidate who had served as “Firefighter III” would receive the following points: 14 points for six months to one year; 19 points for one to two years; or 25 points for more than two years. Young received 25 points in this area. Young also received the maximum points for service of more than two years in the areas of “Committee Chairman” (16 points) and “Committee Participation” (9 points). He did not receive any points in the 21 other specialty areas.

In considering whether the Board’s promotional process adequately accounts for seniority in service as required by the statute (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—15), this court must accord substantial deference to the Board and interfere only if the Board’s interpretation is plainly erroneous or inconsistent with long-settled construction. (Scheffki v. Board of Fire & Police Commissioners (1974), 23 Ill. App. 3d 971, 320 N.E.2d 371.) In Scheffki this court affirmed the interpretation of the defendant, the Board of Fire and Police Commissioners of Calumet City, that seniority in service, as used in the same statute presently at issue (Ill. Rev. Stat. 1967, ch. 24, par. 10 — 2.1—15), did not require the defendant to credit the plaintiff, who had voluntarily resigned for two years from the police force and was then reappointed as a patrolman, for his earlier five years of service in determining promotions to sergeant. In so doing, the court concluded that the board’s interpretation was not erroneous, arbitrary or inconsistent with its rules and that the statute did not require the board to give credit for all service whether continuous or not. (23 Ill. App. 3d at 974.) Likewise, the Board in this case acted within its discretionary authority in determining not to grant credit for each applicant’s absolute length of service, but to credit seniority in service based on various job specialties. The trial judge found that the Board’s separate classifications for determining “seniority in service” was not erroneous or arbitrary. We agree with that conclusion of the trial judge.

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

Judgment affirmed.

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


author: JUSTICE McNAMARA

text:
    CHICAGO EXPORT PACKING COMPANY, Plaintiff-Appellant, v. TELEDYNE INDUSTRIES, INC., et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—90—0361
    Opinion filed December 14, 1990.

      Crotty & Chacon, of Chicago (Zacarías R. Chacon and Bradley D. Lance, of counsel), for appellant.
    Baker & McKenzie, of Chicago, and James A. Hochman, of Rosemont (Francis D. Morrissey, Edward J. Zulkey, Mark L. Karasik, Michael A. Pollard, Donald J. Hayden, and L. Michael Tarpey, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court;

Plaintiff, Chicago Export Packing Company, brought an action against defendants Coldwell Banker & Company (Coldwell), Carl Manofsky, Robert Bley, and Goode & Associates (Goode) to recover damages allegedly sustained as a result of defendants’ fraudulent and negligent misrepresentations in a commercial lease transaction. The trial court granted defendants’ motion for summary judgment, holding that because it was undisputed that the property in question was actively served by rail in the past, defendants had not misrepresented the availability of rail service to the facility. On appeal, plaintiff contends that the trial court erred in granting summary judgment, and that Goode and Coldwell, through their respective agents Bley and Manofsky, made various misrepresentations concerning the availability of rail service to the subject property. (A complaint against Teledyne Industries, Inc., was dismissed and that order is not involved in this appeal.)

The subject commercial property, located at 3400 West 43rd Street in Chicago, is owned by Teledyne and consists of certain land and a warehouse facility. Teledyne engaged the brokerage services of Coldwell to lease or sell the premises. Manofsky, a real estate broker with Coldwell, prepared a listing sheet describing the property, including a representation that there was an inside rail track serviced by Atchison, Topeka and Santa Fe (Santa Fe) on the property.

Plaintiff is engaged in the business of receiving, crating, packing, storing and shipping machinery, equipment, and various other goods. Bley, a real estate broker employed by Goode, contacted plaintiff’s president, Charles Nashan, who was interested in finding a new business location. Nashan and Bley discussed plaintiff’s building needs, which included a general requirement for active rail service. Plaintiff was receiving rail service at its current location.

In July 1980, Bley contacted Nashan about the sale or lease of the 43rd Street facility owned by Teledyne. Over the next few months, plaintiff’s representatives and the defendants visited the 43rd Street facility on numerous occasions. The property is adjacent to the Santa Fe railroad and contained two rail lines leading from the Santa Fe yard directly into the facility. No tenant was in possession of the premises, nor were any rail cars present inside the facility at the time plaintiff inspected the property. The prior tenant in the 43rd Street facility had received Santa Fe rail service.

Although a lease had not been signed because the parties were stiH negotiating, Teledyne allowed plaintiff to begin cleaning the facility in October 1980 and to move equipment in on November 1. Negotiations between the parties continued and several offers and counteroffers were made concerning the sale or lease of the property.

On November 10, 1980, plaintiff’s vice-president, James Nashan, wrote Santa Fe requesting rail service for special equipment weighing as much as 190,000 pounds with a width of 12 feet plus. On December 10, 1980, Santa Fe responded to plaintiff’s letter, stating that after completing a field survey of the tracks leading into the facility, it would be unable to accommodate plaintiff’s request for excess dimensional and heavily weighted shipments. In a verified statement, Rufus M. Wujcik, Chicago agent of Santa Fe, explained it would not provide service to plaintiff for several reasons; specifically, the high, wide, heavy loads consigned to plaintiff posed a safety risk; service to that track became impracticable due to use of the surrounding property for trailer storage; and doubt whether plaintiff would produce sufficient traffic to justify reestablishment of the switch connection.

After receiving Wujcik’s letter, plaintiff’s vice-president, Richard Nashan, met with the defendants on December 16, 1980. According to Richard Nashan’s deposition, defendants told him that the letter was part of a corporate “boondoggle” and that Wujcik was “out of his mind”; that he was “just Santa Fe’s corporate guy”; and that Wujcik did not know what he was doing. Nashan stated that defendants assured him that the 43rd Street facility had active rail service. Defendants advised Nashan to write to Santa Fe again to determine its requirements for rail service. Nashan further stated he believed defendants’ representations because they were professional real estate brokers.

On December 19, 1980, defendants met with plaintiff and stated that it would have to sign a draft lease or vacate the premises. Plaintiff alleges that because of defendants’ repeated assurances that they would have their people take care of the problem with the railroad, it signed a draft lease for the 43rd Street facility. At the time plaintiff entered into the draft lease, it had not received a response from Santa Fe concerning the eligibility requirements for rail service. After subsequent changes and review of the lease by plaintiff’s counsel and Charles Nashan, the final lease agreement was executed on January 10, 1981. The lease did not include a contingency or warranty provision concerning rail service.

Plaintiff never received rail service; however, it remained in the facility for several months. Plaintiff eventually stopped paying rent and failed to meet other obligations under the lease. On June 15, 1982, plaintiff filed this action seeking rescission of the lease agreement, an accounting, and other damages against defendants. On November 15, 1985, plaintiff filed a second amended complaint containing five counts. (Three counts have been dismissed; only the fraudulent and negligent misrepresentation counts are subject to this appeal.)

On appeal, plaintiff contends that defendants’ representations regarding the available active rail service at the property were made with the intent to mislead, deceive and defraud, and that plaintiff would not have entered into the lease but for such representations. In addition, plaintiff contends that defendants breached their duty to exercise due care by negligently misrepresenting that the rail service was available.

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).) In reviewing the order for summary judgment, this court must consider all of the facts revealed in the record and all of the grounds alleged by the parties in order to determine whether a genuine issue as to a material fact exists. Casteel v. Smith (1982), 109 Ill. App. 3d 1094, 1098, 441 N.E.2d 860, 863.

In order to prevail under a claim of fraudulent representation, plaintiff must prove the following elements: (1) a false statement of a material fact; (2) the party making the statement knew or believed it to be untrue; (3) the party to whom the statement was made had a right to rely on it and did rely on it; (4) the statement was made for the purpose of inducing the other party to act; and (5) reliance by the person to whom the statement was made led to his injury. Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 719, 506 N.E.2d 1052, 1055, citing Redarowicz v. Ohlendorf (1982), 92 Dl. 2d 171, 185-86, 441 N.E.2d 324, 331-32.

In determining whether the injured party reasonably relied on the false statement, courts look to all the relevant circumstances surrounding the alleged misrepresentation. (Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 506 N.E.2d 1052; Chicago Title & Trust Co. v. First Arlington National Bank (1983), 118 Ill. App. 3d 401, 454 N.E.2d 723; Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 380 N.E.2d 1040.) Moreover, it is only where parties do not have equal knowledge or means of obtaining knowledge of the facts which are allegedly misrepresented that a person may justifiably rely on them. (Central States Joint Board v. Continental Assurance Co. (1983), 117 Ill. App. 3d 600, 606, 453 N.E.2d 932, 936.), A person may not enter into a transaction with his eyes closed to available information and then charge that he has been deceived by another. Central States, 117 Ill. App. 3d at 606, 453 N.E.2d at 936.

In Knightsbridge Realty Partners, Ltd.-75 v. Pace (1981), 101 Ill. App. 3d 49, 427 N.E.2d 815, plaintiff argued that in reliance on defendant’s promise to deliver a guaranty contract at closing, plaintiff paid the purchase price even though defendant failed to produce the guaranty contract. The court rejected plaintiff’s claim, holding that where the falsity of the representation is known to plaintiff, it is not reasonable to persist in relying upon the representation. The court found as a matter of law that plaintiff could not have been induced by defendant’s representations to pay the purchase price at the closing when at the same time defendant did not deliver the guaranty. Knightsbridge Realty Partners, 101 Ill. App. 3d 49, 427 N.E.2d 815.

In this case, plaintiff contends that it justifiably relied upon defendants’ representations of future rail service, and that it had no choice other than to execute the lease after incurring the expense of moving into the facility. However, plaintiff was aware that Santa Fe was unwilling to provide rail service to the facility after receiving the letter of December 10, 1980. In that letter, Santa Fe unequivocally stated that it had completed its field survey of the tracks leading into the facility and that the adjacent clearances and track curvature would not support the excess dimensional and heavily weighted shipments requested by the plaintiff. Nevertheless, plaintiff chose not to vacate the facility, but instead entered into the draft lease and executed the final lease without including any contingency or warranty provision that would permit it to avoid the contractual obligations under the lease. It was not reasonable for plaintiff to persist in relying upon defendants’ representations that rail service would be available after Santa Fe had stated that it would not provide rail service. Accordingly, plaintiff’s claim of fraudulent misrepresentation must fail.

Plaintiff next contends that defendants made negligent misrepresentations, thereby breaching their duty to exercise due care when they were aware that plaintiff required rail service in the operation of its business. Plaintiff claims that defendants assured it of the availability of rail service from the time plaintiff moved into the facility in October through December, 1980 when the draft lease was first signed. As a result of defendants’ repeated assurances, plaintiff entered into the lease agreement.

In order to prevail under a claim of negligent misrepresentation, plaintiff must prove the following elements: (1) a duty owed by defendant to plaintiff; (2) a breach of such duty; and (3) injury proximately resulting from such breach. (Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 510 N.E.2d 409, citing Lyons v. Christ Episcopal Church (1979), 71 Ill. App. 3d 257, 389 N.E.2d 623.) Plaintiff cites the Zimmerman case for the proposition that an action will lie against a defendant for negligent misrepresentation where he or she breaches a duty to use due care in obtaining and communicating information upon which others may reasonably be expected to rely in conduct of their economic affairs. In that case, the court found that plaintiff had stated an action for negligent misrepresentation against defendant brokers, who had made misrepresentations as to lot size, flooding and other defects in the property, in light of special knowledge of one of the defendants who had lived next door and worked for subdivider.

We find, however, that the facts in this case are distinguishable from those in Zimmerman. Here, plaintiff is an established business entity with familiarity in using rail service evidenced by its usage of rail at its previous location. Also, defendants in this case did not misrepresent that the 43rd Street facility previously received rail service. Defendants’ assurances of future rail service do not constitute actionable fraud because a plaintiff cannot recover for a false representation of intention or future conduct. Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634.

Plaintiff’s reliance upon defendants’ representations because they were professional real estate brokers is unwarranted, especially since Santa Fe had notified it that rail service would be unavailable. Therefore, plaintiff acted at its own peril when it executed the lease without including a warranty or contingency provision, and its claim for negligent misrepresentation also fails.

In its defense, Coldwell contends that plaintiff is presumed to know the law; specifically, section 45 of “An Act concerning public utilities” (Ill. Rev. Stat. 1979, ch. lll2/3, par. 45, repealed by Pub. Act 84 — 102, §4, eff. July 23, 1985), which provided that the railroad’s obligation to serve the property was conditioned upon business factors such as the revenue and expense from that service. Having reached our decision on other grounds, we need not address the applicability of that statute in resolving this case.

For the foregoing reasons, the judgment of the circuit court of Cook County granting defendants’ motion for summary judgment is affirmed.

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


text:
    TOM TOTH, SR., d/b/a Toth Automotive, Plaintiff-Appellant, v. JOHN MANSELL, d/b/a John’s Truck Repair, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—0426
    Opinion filed December 14, 1990.
    — Modified on denial of rehearing February 15, 1991.

      W. Lee' Newell, Jr., of Calumet City, and Jack W. Lund, of Gary, Indiana, for appellant.
    John P. Brattoli, of Chicago Heights, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

This appeal by plaintiff arises from an action filed to recover amounts allegedly owed plaintiff by defendant for automobile and truck supplies purchased by defendant on open account. The trial court dismissed the action against defendant, holding that the statute of limitations barred recovery.

Plaintiff, Tom Toth, doing business as Toth Automotive, sells automobile and truck supplies and equipment. Defendant, John Mansell, doing business as John’s Truck Repair, established an open account with plaintiff on March 3, 1977, by making his first charge purchase. From March 3, 1977, until April 17, 1978, defendant charged $9,915 on the account. By April 17, 1978, defendant paid off the entire balance due. From April 17, 1978, until January 7, 1980, defendant purchased $17,700 in supplies from plaintiff. During this period, defendant paid $10,900 on the account. Defendant last purchased goods from plaintiff on January 7, 1980. Defendant last made a payment on August 1,1980.

From November 17, 1979, when the net balance was $6,816.05, until May 20, 1988, the date this suit was filed, plaintiff added a service charge at the rate of V-k% per month pursuant to the terms set forth on the monthly account statements. As of September 30, 1987, defendant allegedly owed plaintiff $32,434.43. Plaintiff’s first amended complaint prayed for this sum plus service charges at the rate of V-k% per month from September 30, 1987, to date of judgment. Plaintiff attached to the complaint 120 pages, consisting of copies of invoices, statements of account and ledgers. Plaintiff alleged that defendant himself signed for 18 of the 25 attached invoices. Plaintiff also alleged that he sent defendant monthly statements showing the net balance due after adjusting for all new invoices, service charges and payments.

Defendant admitted purchasing goods from plaintiff prior to 1981 on open account pursuant to an oral agreement. Defendant denied agreeing to pay the monthly service charge on the balance due, and neither admitted nor denied receiving monthly statements. Both parties agree that defendant never contacted plaintiff either orally or in writing to contest or object to the bills.

On May 20, 1988, plaintiff brought the action against defendant for amounts allegedly owed on “open account.” The trial court granted defendant’s motion to dismiss on February 3, 1989, based on the applicable five-year statute of limitations for oral contract actions and granted plaintiff leave to file an amended complaint. In his amended complaint, filed on May 19, 1989, plaintiff alleged that the invoices sent to defendant constituted a writing sufficient to invoke the 10-year statute of limitations under section 13 — 206 of the Limitations Act (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 101 et seq.). According to plaintiff, although he relied on an account stated theory to establish the amount of the obligation, his case was based instead upon a written contract theory. The trial court, however, concluded that the invoices did not constitute a writing and the five-year statute of limitations period had run on the action.

On appeal, plaintiff contends that the invoices and monthly statements established either a written contract or “other evidence of indebtedness,” to which a 10-year statute of limitations applied under section 13 — 206. Plaintiff maintains that the monthly statements created an account stated, which served to create successive new promises by defendant and to establish the amount of the obligation. As such, plaintiff maintains that even if a five-year limitations period applied, plaintiff was entitled to recover.

Plaintiff first contends that the invoices and monthly statements constituted either a written contract or “other evidence of indebtedness in writing,” to which a 10-year statute of limitations applies. We conclude that the writings in this case do not constitute either a written contract or “other evidence of indebtedness.”

Section 13 — 206 provides a 10-year statute of limitations period for actions on bonds, promissory notes, bills of exchange, written leases, written contracts or other evidence of indebtedness in writing. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 206.) Any action which is not otherwise provided for in the Code of Civil Procedure is governed by a five-year statute of limitations. Ill. Rev. Stat. 1989, ch. 110, par. 13-205.

Illinois courts strictly interpret the meaning of a written contract and “other evidence of indebtedness” within the statute of limitations. A contract is considered written for purposes of the statute of limitations if all essential terms are reduced to writing and can be ascertained from the instrument itself. (Brown v. Goodman (1986), 147 Ill. App. 3d 935, 498 N.E.2d 854; Clark v. Western Union Telegraph Co. (1986), 141 Ill. App. 3d 174, 490 N.E.2d 36.) If parol evidence is necessary to make the contract complete, then the contract must be treated as oral for purposes of the statute of limitations. Clark v. Western Union Telegraph Co. (1986), 141 Ill. App. 3d 174, 490 N.E.2d 36; Weaver v. Watson (1984), 130 Ill. App. 3d 563, 474 N.E.2d 759; Novosk v. Reznick (1944), 323 Ill. App. 544, 56 N.E.2d 318.

Similarly, a written document qualifies as “other evidence of indebtedness” under section 13 — 206 only when one need not resort to parol evidence to establish the vital elements of the agreement. (Schmidt v. Niedert (1976), 45 Ill. App. 3d 9, 358 N.E.2d 1305.) The document must be of the same nature as those written instruments specified in section 13 — 206, although it need not follow the exact form and phraseology required in those documents. (In re Estate of Garrett (1975), 24 Ill. App. 3d 895, 322 N.E.2d 213.) Further, a writing constitutes “other evidence of indebtedness” when the language of the instrument may fairly be construed to contain a promise to pay money or contains facts from which the law implies a promise to pay, so long as parol evidence is not necessary to establish any essential elements. Schmidt v. Kiely (1977), 51 Ill. App. 3d 122, 366 N.E.2d 455.

In Schmidt v. Kiely, a doctor sued to collect an amount owed based on a billing statement. The patient’s father had written “correct” on the statement next to the. amount, had written “this will be paid in 90 days” on the back, and had signed and dated the statement. The court held that the document did not qualify as “other evidence of indebtedness” because it failed to indicate who was to pay the bill and the circumstances under which the debt had arisen. See also Ames v. Crown Life Insurance Co. (1980), 85 Ill. App. 3d 203, 406 N.E.2d 222 (written memoranda from insurance company requesting that certain forms be executed did not prove indebtedness). Cf. In re Estate of Garrett (1975), 24 Ill. App. 3d 895, 322 N.E.2d 213 (decedent’s signed statement on promissory note that his son loaned him money to pay off the note and that son was to be repaid out of estate qualified as “other evidence of indebtedness”).

In the present case, plaintiff claims that the written documents evidenced the parties’ agreement. However, plaintiff cannot establish defendant’s alleged promise to pay from the invoices, monthly statements or ledgers, taken either separately or as a whole. We can infer from the invoices that the parties entered various agreements for the purchase of automobile parts and supplies. Yet, none of the writings, not even the signed invoices, demonstrate any promise by defendant to pay. In fact, invoices or sales slips are routinely used for several purposes: to identify the sale and the articles sold, to identify the person making the sale, and to identify the person to whom the goods were delivered. The documents here merely acknowledge that defendant purchased supplies from plaintiff.

To even attempt to establish defendant’s alleged promise to pay, plaintiff must introduce some parol evidence, whether it be plaintiff’s rendering of statements to defendant, defendant’s lack of objection or the prior dealings between the parties. As such, defendant’s contractual obligation arises not from the written invoices, but rather from previously executed oral contracts. Since the documents failed to demonstrate a promise to pay, an essential element, the parties’ agreement must be viewed as an oral contract. (Wielander v. Henich (1965), 64 Ill. App. 2d 228, 211 N.E.2d 775.) The Wielander court wrote, citing Plumb v. Campbell (1888), 129 Ill. 101,18 N.E. 790:

“ ‘A written contract is one, which, in all its terms, is in writing. A contract partly in writing and partly oral is, in legal effect, an oral contract.’ [Citation.] ‘If it be true that the agreement, as set forth in writing, is so indefinite as to necessitate resort to parol testimony to make it complete, the law is, that in applying the statute of limitations it must be treated as an oral contract. Both reason and authority support this view. [Citation.]’ ” Wielander, 64 Ill. App. 2d at 231, 211 N.E.2d at 776.

Basic contract theory also supports this result. Elementary rules of contract construction require us to find the parties’ intentions from the written instrument itself. (Continental Assurance Co. v. Commonwealth Edison Co. (1990), 194 Ill. App. 3d 1085, 551 N.E .2d 1054.) Under this rule, we find nothing within the “four comers” to indicate that the parties intended these invoices to be anything more than mere receipts made for the parties’ convenience and not intended as binding written promises to pay. Thus, in determining which statute of limitations applies, this contract must be deemed as oral. As such, section 13 — 205 applies, and the trial court properly found that the statute of limitations barred plaintiff’s claim.

Next, we consider plaintiff’s argument that the repeated rendering of statements of account tolled the statute of limitations. Plaintiff contends, relying on Pure Torpedo Corp. v. Nation (1945), 327 Ill. App. 28, 63 N.E .2d 600, that the last rendered statement of account on September 30, 1987, created an account stated and thus raised a new obligation between the parties so that this action is based not upon the original contract but upon the subsequent promise to pay inherent in an account stated. As such, plaintiff maintains that even a five-year statute of limitations would not bar this claim.

Generally, an account stated is an agreement between parties who have previously conducted monetary transactions that the account representing the transactions between them is true, and that the balance is accurate, together with a promise to pay such balance. (W.E. Erickson Construction Co. v. Congress-Kenilworth Corp. (1985), 132 Ill. App. 3d 260, 477 N.E.2d 513; La Grange Metal Prod- nets v. Pettibone Mulliken Corp. (1982), 106 Ill. App. 3d 1046, 436 N.E.2d 645.) An account stated must demonstrate the mutual assent of both creditor and debtor. (Allied Wire Products, Inc. v. Marketing Techniques, Inc. (1981), 99 Ill. App. 3d 29, 424 N.E.2d 1288.) The meeting of the minds as to the accuracy of an account usually results from one party rendering a statement of account to which the other party acquiesces. (Motive Parts Co. of America, Inc. v. Robinson (1977), 53 Ill. App. 3d 935, 369 N.E.2d 119.) The manner of acquiescence is not critical, and the meeting of the minds may be inferred from the parties’ conduct and the circumstances of the case. When one party renders a statement of account to another, who retains it without objection for longer than is reasonable, an account stated is established. La Grange Metal Products, 106 Ill. App. 3d 1046, 436 N.E.2d 645; Protestant Hospital Builders Club v. Goedde (1981), 98 Ill. App. 3d 1028, 424 N.E.2d 1302; Motive Parts Co., 53 Ill. App. 3d 935, 369 N.E.2d 119.

Here, we do not believe that by rendering each of the successive statements of account, plaintiff created an account stated, and thereby raised a new cause of action or tolled the running of the statute of limitations. First, the monthly statements upon which plaintiff relies were not in the form of an account stated. The statement of account in question must be based upon previous transactions between the parties and renders certain the amount of a debt for a preexisting liability. (W.E. Erickson Construction Co. v. Congress-Kenilworth Corp. (1985), 132 Ill. App. 3d 260, 477 N.E.2d 513; Motive Parts Co., 53 Ill. App. 3d 935, 369 N.E.2d 119.) In this case, even assuming that an oral contract existed between the parties, the statements sent from 1980 through September 1987 did much more than clarify the amount defendant, allegedly owed plaintiff for his preexisting liabilities. Rather, each successive statement added a monthly service charge to the account. Although the first statement following the last sale may have created an account stated, each successive statement had no such effect.

Furthermore, an account stated cannot be created merely by furnishing an account unless the creditor or debtor specifically intends to establish a balance due or to agree upon a final settlement to date between the parties. (1 Am. Jur. 2d Accounts & Accounting §21 (1962); 1 Ill. L. & Prac. Account Stated §2 (1968); Chicago Truck Leasing Co. v. Gebhardt Chili Powder Co. (1941), 310 Ill. App. 672, 35 N.E.2d 416 (abstract of opinion).) There is nothing in the record showing that plaintiff sent the statements for the purpose of clarifying a disparity as to the' amount owed, nor is there any indication that between 1980 and 1987 defendant disputed plaintiff’s claim as to the amount owed. In fact, both plaintiff and defendant agree that from 1981 until the filing of this suit, there were no conversations or dealings between the parties.

In our view, if an account stated was created at all, it was created only by the first statement rendered after the parties’ last transaction on January 7, 1980. Thus, the initial statement that plaintiff sent after the final sale constituted an account stated and gave rise to a new cause of action, assuming it was received and retained by defendant without objection. (Pure Torpedo Corp. v. Nation (1945), 327 Ill. App. 28, 63 N.E.2d 600.) However, the subsequent statements were merely renditions of the account already rendered plus the added monthly interest, and, as such, did not create a new account stated each month. We do not believe that a creditor can extend the running of the statute of limitations on an account stated by merely repeatedly rendering the same account. (Slayback v. Alexander (1917), 179 A.D. 696, 167 N.Y.S. 194.) We find that when an open account becomes an account stated by virtue of the debtor’s receipt without objection of a statement, the cause of action on the account stated accrues. Thus, plaintiff’s cause of action on an account stated accrued during 1980 when plaintiff sent the first statement to defendant. Since an action not otherwise provided for in the Code of Civil Procedure is governed by a five-year statute of limitations (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 205), plaintiff’s claim was not timely.

Finally, we consider plaintiff’s argument that because the writings in this case satisfy the requirement for a confirmatory memo under section 2 — 201 of the Uniform Commercial Code (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 201), these writings are also sufficient under the statute of limitations. Plaintiff’s argument, however, is unpersuasive. Section 2 — 201 provides the formal requirements for a contract for the sale of goods. The object of this statute of frauds provision is to ensure the existence of a valid contract and “to provide a basis for believing that the oral evidence rests on a real transaction.” (Ill. Ann. Stat., ch. 26, par. 2 — 201, Uniform Commercial Code Comment, at 113-14 (Smith-Hurd 1963.)) This section, in essence, is the statute of frauds which is applicable to the sale of goods between merchants. Contrary to plaintiff’s contention, a writing that satisfies the statute of frauds requirements does not necessarily satisfy the statute of limitations definition of a written contract. Brown v. Goodman (1986), 147 Ill. App. 3d 935, 498 N.E.2d 854.

In Brown v. Goodman, in opposing a motion to dismiss on statute of limitations grounds, plaintiff cited several cases which considered whether writings were sufficient to meet statute of frauds requirements. This court found those cases irrelevant. The court recognized that some jurisdictions treat a written instrument as a written contract for statute of limitations purposes if it meets the requirements for a written contract under the statute of frauds. However, the court stated that in Illinois, the test for whether a contract is written under the statute of limitations is not whether it meets the statute of frauds, but whether all essential terms of the contract could be ascertained from the written instrument. As such, neither the Uniform Commercial Code nor the statute of frauds supports plaintiff’s position.

For the foregoing reasons, the judgment of the circuit court of Cook County dismissing plaintiff’s complaint is affirmed.

Judgment affirmed.

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


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY HAIRSTON et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1—87—2275,1—87—2549 cons.
    Opinion filed December 17, 1990.
    — Rehearing denied January 31, 1991.—
    Modified opinion filed February 11, 1991.

      Marie Harrigan, of State Appellate Defender’s Office, of Chicago, for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Mark A. Shlifka, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Leroy Hairston and Herman Warr were charged with aggravated kidnapping (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 2(a)(3)), armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2(a)), and aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(a)). Both were found guilty after a bench trial and were sentenced to concurrent terms for the crimes. For the reasons below, we affirm.

Two conflicting versions of the crimes were presented at trial, that of the complaining witness, Olaide Olumini, and that of defendants. The trial court accepted Olumini’s version.

Olumini testified that on the morning of February 2, 1987, he attended an accounting class at Roosevelt University in Chicago. Although he had attended all semester, he could not remember the professor’s name. When the class was over, he drove to the north side to visit a friend.

Olumini parked his car near the intersection of Glenlake and Kenmore Avenues, and when he got out, he was approached by two men whom Olumini later identified as Hairston and Warr. Hairston had a gun. The defendants put Olumini in their car, where they took his wallet and $100.

Olumini testified that the defendants drove about four blocks south to a building at 5420 North Kenmore, where they took him inside and tied him to a bed. Olumini said he had never been in the building before. In the building, Olumini testified, the defendants demanded more money. The defendants left the building, and Olumini testified he was beaten for about two hours before he fell asleep.

The defendants returned and drove Olumini in a light blue Cadillac to an apartment at Glenlake and Kenmore. Hairston demanded more money, then the defendants, and others in the apartment, left the apartment, forcing Olumini with them at gunpoint. Olumini testified they went down the back stairs and climbed a fence. Olumini said he fell while climbing and screamed for help. The others ran away.

Olumini was helped by Ms. Barbara Smith, who had responded to his calls. The police were summoned, and Olumini identified Hairston at the scene. The police took Olumini to the police station at Clark and Devon, where he identified Warr. Olumini stated he had never seen his attackers before and that he had never used drugs.

On cross-examination, the trial court refused to allow extended questioning about Olumini’s relationship with the defendants and whether he dealt drugs. The trial court also refused to allow questions concerning whether the building at 5420 Kenmore was a drug house and whether Olumini knew the neighborhood. The trial court further refused to allow the testimony of two witnesses to impeach Olumini’s statement that he did not know the defendants.

Defendants presented a conflicting version of the event. Warr testified he was a drug dealer and ran three drug houses in the Kenmore neighborhood. Hairston was a security guard at Warr’s drug houses. Warr said he had known Olumini since the summer of 1986.

Warr testified that on February 2, 1987, Olumini conducted a drug transaction at 5420 North Kenmore and returned at about 3:30 p.m. to set up another deal at 1041 Glenlake. Hairston and Warr arrived at the Glenlake apartment before 6 and 7 p.m. Olumini was already there, smoking cocaine. Olumini made a phone call, explaining that he was waiting for someone to answer a page. Warr became restless and demanded his money back. A fight broke out, and Hairston pulled his gun and intervened.

A few minutes later someone yelled that the police were coming. Everyone ran down the back stairs and climbed over a fence. Olumini fell. He asked for help but no one stopped. Hairston and Warr were later arrested.

Several other witnesses testified to their roles in the incident. Ms. Barbara Smith testified that while having dinner at her mother’s apartment on Glenlake, she heard a man screaming outside. There were other men around him, and she went to help. As she approached, the other men left. One man, whom Ms. Smith identified as Hairston, walked away slowly with his left hand behind his back. She followed him until he was arrested a short time later. Ms. Smith did not know who called the police.

Officer Derek McClinton testified that while on patrol at about 7 p.m., he and his partner had been flagged down by Ms. Smith, who pointed out Hairston. Hairston threw down a gun, and they arrested him.

Officer William Blake testified that he was called to the scene, where he found Olumini. He drove to where Hairston had been caught, and Olumini identified Hairston. Officer Blake later found the gun Hairston had tossed.

Officer Paul Cardón testified that he arrested two of Hairston and Warr’s codefendants, not parties to this action. One of the codefendants had $100 on him, and another was arrested at 5420 North Kenmore. Officer Cardón identified a picture of the bed where Olumini had been tied. It was clean and had no bloodstains.

Officer David Rucci testified that he and his partner had staked out the blue Cadillac at 1041 Glenlake and there arrested Ricky Warr, brother of defendant Herman Warr. Officer Rucci further testified that Olumini had identified Ricky as Herman’s brother. Later, when a woman tried to take the car, Rucci talked to her and drove to an apartment on North Winthrop, one block west of Kenmore, where he arrested Herman Warr.

Detective James Gildea testified that he met Olumini at the police station and that Olumini identified Warr in a lineup. Gildea testified that Olumini had told him the crime occurred at 3:55 p.m. Blood was found on Hairston’s and Warr’s clothing when they were arrested, but tests were inconclusive.

Warr’s uncle, Joe Wilson, testified that he had known Olumini for about six months, having met him through his nephew. Wilson stated that Olumini dealt drugs with Warr. Wilson testified that Olumini had asked for $3,000 to drop the charges against Warr and that the events of February 2, 1987, centered around a soured drug deal.

Warr’s sister, Kimberly Warr, testified that she knew Olumini through her brother and that Olumini dealt drugs. She stated that she had seen Olumini at 5420 North Kenmore and at another apartment at 5420 West Potomac.

After closing arguments, the trial court found Hairston and Warr guilty of aggravated kidnapping, aggravated battery, and armed robbery. Defense counsel for Warr moved for a new trial based on new evidence, that Olumini was not a student at Roosevelt University, and that he was an illegal alien. The trial court denied the motion.

Defendants were sentenced to five years’ imprisonment for aggravated battery. Hairston was sentenced to 10 years each for aggravated kidnapping and armed robbery, and Warr was sentenced to eight years each for aggravated kidnapping and armed robbery. The sentences were to be served concurrently. Defendants appeal.

We first note that the record supports the finding of guilt. Defendants contend their version of events was more credible than Olumini’s, but the trial court, weighing all the evidence, accepted Olumini’s testimony, which established each element of the crimes charged. No witnesses, save defendants and their family members, contradicted Olumini.

The trial court limited the cross-examination of Olumini and prohibited impeachment witnesses and other offers of proof to establish that he was a drug dealer acquainted with defendants, but the trial court was within its discretion to do so. Olumini repeatedly denied knowing defendants or their friends, or dealing with drugs. Olumini testified that when he was taken into the building at 5420 North Kenmore, he had seen the address. The trial court indicated that it understood the points defense counsel sought to make and found that the record was sufficient to support defendants’ theory.

Defendants’ version of events was not implausible, but the trier of fact found defendants guilty, and the record supports that verdict. Viewing the record most favorably to the State, therefore, it is impossible to conclude that no rational trier of fact could have found defendants guilty beyond reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.

Defendants argue that the trial court erred in denying their motion for new trial based on new evidence. Defense counsel asserted that Olumini was not a student at Roosevelt University, as he claimed, and that Olumini had problems with his immigration status, two facts which, defendants contend, would have given Olumini a compelling motive to lie about his involvement in drug dealing. The trial court’s ruling was proper, however, because the evidence proffered by defendants was not likely to have changed the outcome on retrial and could have been discovered prior to trial through due diligence. See People v. Cooper (1987), 164 Ill. App. 3d 734, 518 N.E.2d 260, appeal denied (1988), 119 Ill. 2d 562.

No doubt Olumini would have faced deportation had he been dealing drugs. But the fact that Olumini was not a student and had problems with his immigration status, even if true, was not conclusive evidence of drug dealing or that defendants did not commit the crimes with which they were charged. Rather, the new evidence only supported defendants’ theory that Olumini was lying about defendants to hide his involvement with drugs, a theory defense counsel had established and which the trial court rejected.

Further, as the trial court noted, the evidence defendants sought to present could have been discovered prior to trial through a more diligent investigation. Defense counsel contends that it was impossible to discover Olumini’s student and immigration status before trial because Olumini refused to be interviewed, and defense counsel had the wrong name and social security number. The record, however, beginning with the original police report, consistently uses Olumini’s correct name. The trial court correctly refused to grant a new trial.

Defendants contend, in the alternative, that if the evidence of Olumini’s immigration status was not sufficient to grant a new trial, the failure to uncover the evidence before trial constituted ineffective counsel. But because the evidence was not outcome determinative, defendants were not prejudiced by counsel’s failure to uncover the evidence. People v. Bean (1990), 137 Ill. 2d 65, 130-33, 560 N.E.2d 258.

Defendants next raise a series of arguments concerning sentencing, but we find no reversible error. Aggravated battery and armed robbery were not, as defendants contend, the lesser included offenses of aggravated kidnapping. More importantly, the crimes charged here could be established by separate, independent acts occurring during the encounter. Conviction for all three offenses, therefore, and concurrent sentences, was appropriate. See People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert, denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.

Further, although the trial court stated that aggravated battery carried a minimum sentence of five years, which is actually the maximum sentence (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1), that statement cannot support reversal on grounds that the trial court intended to impose the minimum penalty. The record shows that the trial court applied the proper sentencing statute, and also contains an accurate statement by the trial court of the sentencing range. Moreover, the sentence for aggravated battery was to be served concurrently with a longer sentence for aggravated kidnapping. We therefore find no reversible error.

Defendant Hairston argues that a previous felony conviction that was reversed was improperly considered by the trial court in passing sentence. The trial court stated, “[Hairston’s] actions are, I think, the most reprehensible of all and having escaped when he did the last time to go back into this kind of life kind of boggles me.” The record shows unmistakably that the trial court knew Hairston’s prior conviction had been reversed and that he had not been retried. The trial court’s comment indicates not the belief that Hairston had gotten away with something, and was not susceptible to rehabilitation, but rather, that Hairston consciously chose the criminal life. The trial court’s comment clearly and properly focussed on Hairston’s behavior at the time he committed the crime for which he was being sentenced.

Finally, Hairston argues that the commitment order, which shows he was sentenced to 10 years for aggravated kidnapping, should be changed to reflect the eight-year sentence the trial court intended to impose. The record here shows that the trial court first stated that Hairston was to receive 10 years, but later stated the sentence was eight years. The record also shows, despite inconsistent statements by the trial court, a consistent reference to a 10-year sentence. In the absence of a clear conflict between the commitment order and the trial court’s judgment, the commitment order need not be amended.

In summary, the record supports the finding of guilt and that defendants were able to establish their defense theory. The trial court correctly denied defendants’ motion for new trial, and no reversible error was made in sentencing. Accordingly, we affirm.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND B. BOLTON, JR., Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—2224
    Opinion filed December 18, 1990.

      Donald Hubert & Associates, of Chicago (Donald Hubert and Mark Zapf, of counsel), for appellant.

      John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Sally Dilgart, and Sherry Biedar, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, Raymond B. Bolton, Jr., appeals from his conviction for criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12— 13(a)(1)), questioning whether the State proved him guilty beyond a reasonable doubt. He was sentenced to four years in custody of the Department of Corrections.

At the bench trial, the following evidence was adduced. On October 11, 1986, the victim, C.W., and her friend, F.T., were at a neighborhood skating rink where they saw Robert Thomas (“Big Rob”), Harry Reginald and Steve Willis. All three were F.T.’s friends; C.W. had known Big Rob only for about one month. When the rink closed at 11 p.m., the girls went to F.T.’s house. Harry later stopped by and informed them that Big Rob was throwing a party. They walked over and entered through the back door. C.W. went down to the basement, where she saw Arvester Trezvant (“Batter”), Shon Dixon (“Shane”) and Dianl McGuire (“Slick”). Since C.W. and F.T. were the only girls at the party, F.T. left to find some other girlfriends, accompanied by Thomas Leatherwood (“Two Tone”) and Willis. F.T. returned 10 to 15 minutes later, but was unable to find any more girls to join the party.

When F.T. returned, C.W. told her she wished to leave. From the kitchen phone, she called a friend, but was unable to secure a ride home. C.W. then went upstairs to the living room with F.T., Two Tone, Batter and another youth named “Little Ray,” to watch cable television. C.W. asked Little Ray for a cigarette, and he refused. C.W. replied that he “makes [her] sick.” Batter told Little Ray what C.W. had said, and Little Ray threatened to “kick her ass.” Batter then took his cigarette and burned her on the lip. C.W. pushed him, and a shoving match followed in which Batter fell over the coffee table and hit his head.

C.W. again told F.T. she was ready to go, but F.T. said she was not ready. C.W. got up and tried to enter the kitchen when Batter grabbed her arm and pulled her into Big Rob’s bedroom. Two Tone and Slick also came in, and Slick started hitting and kicking her. Two Tone pulled her clothes off, and she was thrown on the bed. Batter then had oral and vaginal intercourse with C.W. While Batter had sex with her, Two Tone put his penis in her mouth and ejaculated. Slick also had oral and vaginal intercourse with C.W., and Two Tone raped her. C.W. explained that while one attacker had oral sex, another would rape her. Shane next entered the room and tried to rape C.W., but was unable to do so. He told her to “[l]oosen up, bitch,” and Slick asked, “Is she acting right?” When someone answered “no,” Slick began slapping her and said, “This bitch got to show some love to the folks.”

At that time, Big Rob came into the room and had oral sex with C.W., while Sheldon Harris raped her. Later, defendant entered the room. F.T., meanwhile, had tried to gain entry into the bedroom, but was pushed out. When she tried again, Batter told her she “must want some, too.” Slick slapped her, and Batter pushed her down and pulled her into another bedroom. At that time, C.W. declared that “Big Ray [defendant], I think he had his penis in my mouth at that time.” Defendant later had vaginal sex with her. After the attacks, Big Rob told C.W. to put her clothes on and not tell anyone. Rob unlocked the door and she, F.T., and Phillip left. Two Tone, Steve, and Harry also left at roughly the same time. As they were walking toward the corner, Slick came out of the alley with his coat held over his hands. He asked if the girls were walking to the “el” stop. They said no, and Steve told him they were getting a ride.

C.W. and F.T. accepted Two Tone’s ride offer because they did not want to walk to the “el” with Slick. They drove to Harry’s cousin’s house, where C.W. called her grandmother. Two Tone offered the girls money if they would not tell anyone.

The girls were taken to Roseland Hospital, where they were treated by doctors and questioned by police. Chicago police officer Gerald Pustay spoke with F.T. and C.W. at the hospital on October 12, 1986. C.W. had visible swelling on her face, a burn on her lip and bloodshot eyes which looked as if she had been crying. F.T. was also bruised. Both girls were in a nervous and excited state, and neither appeared to be under the influence of alcohol or drugs.

Chicago police officer Raymond Madigan noted similar injuries on the girls when he spoke to them at the hospital. After his interview, Madigan went to defendant’s house and placed him under arrest. Madigan also visited the scene of the crime and described the Thomas house as being in “disarray” with many bottles, glasses, and beer cans strewn about. In two of the bedrooms, clean new sheets were on the beds. Both the front and back doors had deadbolts on them which were operated by a key. At a lineup held later that night, C.W. identified defendant as her attacker, along with Two Tone and Big Rob.

Defendant later gave police and an assistant State’s Attorney a handwritten statement in which he admitted being at the party and having sex with C.W.

ET.’s testimony was similar to C.W.’s in many aspects. After Batter and C.W. fought, C.W. left the living room. A little while later, F.T. heard C.W. scream. She went back to Big Rob’s room, but could not get inside. She returned to the living room and attempted to telephone for help, but she could not get a dial tone. She went back to Big Rob’s room and this time got in. The light was off, and when she turned it on, she saw defendant with his penis in C.W.’s mouth and tears in C.W.’s eyes. Someone yelled to turn out the light, and Batter twisted her arm. At that time, Big Rob and Slick were also in the room. Batter told her that she “must want some, too,” and Slick slapped her in the face. F.T. was pulled into another bedroom, where Batter and Two Tone both raped her. F.T. denied that Two Tone offered the girls money not to tell.

The parties stipulated that both girls’ vaginal smears tested positive for sperm and that the doctors noted various injuries on the girls’ faces.

Defendant maintains that the State failed to prove him guilty beyond a reasonable doubt because C.W. was equivocal about whether defendant orally assaulted her and because there was no evidence that defendant forced her to perform the act.

A more modern standard for review in criminal sexual assault cases is that found in People v. James (1990), 200 Ill. App. 3d 380, 394, 558 N.E.2d 732, and in People v. Roy (1990), 201 Ill. App. 3d 166, 558 N.E.2d 1208, which 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, relying upon People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267. The James and Roy courts ruled that previous standards such as requiring the complainant’s testimony to be clear and convincing or corroborated by other evidence (see, e.g., People v. Server (1986) , 148 Ill. App. 3d 888, 499 N.E.2d 1019) are sexist and archaic. Defendant’s conviction here may stand, however, under either standard.

There is no requirement that testimony be crystal clear and perfect in order to qualify as clear and convincing. (People v. Born (1987) , 156 Ill. App. 3d 584, 590, 509 N.E.2d 125; People v. Server (1986) , 148 Ill. App. 3d 888, 894, 499 N.E.2d 1019, cert, denied (1987) , 484 U.S. 842, 98 L. Ed. 2d 88, 108 S. Ct. 131.) Minor variances affect only credibility, a factor which is left for resolution by the trier of fact. (People v. Cregar (1988), 172 Ill. App. 3d 807, 820.) Discrepancies which do not detract from the reasonableness of the complainant’s testimony may be held clear and convincing. (People v. Red- man (1986), 141 Ill. App. 3d 691, 703, 490 N.E.2d 958.) Upon review, the circuit court’s judgment will not be set aside unless the proof is so unsatisfactory, improbable or implausible that would justify a reasonable doubt as to the defendant’s guilt. People v. Server, 148 Ill. App. 3d 888.

Defendant points to C.W.’s direct examination where she stated she thought defendant had his penis in her mouth as evidence of the complainant’s lack of credibility. Some of C.W.’s lack of certainty can be attributed to the fact that the bedroom lights were kept off as often as possible. In that case, C.W. might be confused as to who was assaulting her and in what manner. F.T. corroborated C.W.’s account of defendant’s assault. Corroborating evidentiary matters include an eyewitness account, confession or admission by the defendant, prompt reporting of the incident by the victim or medical testimony which supports allegations of abuse. (People v. Server, 148 Ill. App. 3d at 895.) F.T. swore unequivocally that at the time she entered the room and opened the light, defendant “had his penis in [C.W.’s] mouth.” During the lengthy and often times confusing cross-examination, F.T. never wavered on this point. Moreover, defendant confessed to having sex with C.W., and C.W. herself promptly reported the incident to authorities in which she named defendant as her attacker. Medical evidence reflected that sperm was present in C.W.’s vagina and that she was injured in the manner in which she testified.

In its findings, the circuit court relied on F.T.’s testimony, which the record reveals to have been articulate, clear and convincing. Although F.T. does not remember C.W. telephoning her friend for a ride from the party, the record reflects that F.T. was not always in C.W.’s presence. Other discrepancies to which defendant points are also minor in view of F.T.’s overall clarity and credibility. The circuit court’s finding of oral contact between defendant and C.W. is not so unreasonable as to warrant reversal.

Defendant also maintains that the element of force (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 13(a)(1)) was not proven beyond a reasonable doubt.

There is no definite standard establishing the amount of force which the State is required to prove to show rape. If circumstances show resistance to be futile or life endangering or if the victim is overcome by superior strength or fear, useless or foolhardy acts of resistance are not required. In re C.K.M. (1985), 135 Ill. App. 3d 145, 151, 481 N.E.2d 883; People v. Cukojevic (1981), 103 Ill. App. 3d 711, 717, 431 N.E.2d 1154.

In the case sub judice, C.W. declared that she was pulled into a room, held down and undressed by Two Tone, and slapped by Slick and Batter. She screamed at least once before the multiple attacks began. Slick, who by all accounts never left the bedroom, began to hit her when one of the attackers complained that C.W. was not “acting right.” Moreover, C.W. swore that she did not consent to any of the acts with any of her attackers. The record reveals that C.W. was always in the room with at least three men; two of them beat and abused her throughout the night. Although the record is silent as to C.W.’s size, it does indicate that defendant and his associates were members of the high school football team. C.W. was therefore subjected to some superior strength. As to defendant’s assertion that C.W. failed to make any type of outcry, the record leaves no doubt that C.W. was never physically able to make such an outcry, beyond the initial one she made.

The cases defendant relies upon are factually distinguishable and do not persuade. In People v. Rossililli (1962), 24 Ill. 2d 341, 181 N.E.2d 114, the victim was the only one to testify as to the alleged rape, and her testimony was entirely uncorroborated. Here, ET. testified that three men were in the room at the time defendant was attacking C.W. and that C.W. had tears in her eyes. This tends to corroborate C.W.’s assertion that the act was nonconsensual. Moreover, both the police and the doctors who examined C.W. reported the numerous bruises and injuries about her face, a further indication that force was concentrated upon C.W., rendering these acts nonconsensual. In People v. Qualls (1961), 21 Ill. 2d 252, 171 N.E.2d 612, there was no evidence of the use of any force upon the victim such as bruises, marks, or contusions upon her body. Moreover, the victim was struck only after the act of intercourse, when she wanted to leave the apartment. At bar, there was substantial evidence as to C.W.’s injuries sustained before the attack and further evidence that flight from the home would have been impossible because both doors were deadbolted, and Big Rob had the only key, which he kept on his person.

Defendant also argues in his reply brief that C.W. could have resisted the attacks just as F.T. had done. After F.T. was raped by Batter and Two Tone, two men entered the room with their pants down. She told them she was “going to tell,” and they ran out. Two Tone then came in, and she told him she “would give him some” if he made sure that the others would not “do [her] like they were doing [C.W.].” It should be noted that when F.T. told the two boys she was going to tell the police, neither Batter nor Slick was present in the room. These two men were the primary intimidators throughout the whole night and oversaw all the action. Moreover, it could hardly be said that consent is present when a victim chooses one sexual assault by a single attacker over repeated sexual assaults by a number of different men.

For the foregoing reasons, we find that the State’s evidence left no reasonable doubt of defendant’s guilt.

Affirmed.

DiVITO, P.J., and SCARIANO, J., concur.