author: JUSTICE GOLDENHERSH

text:
    KENNETH S. HARTBARGER, Plaintiff-Appellee, v. SCA SERVICES, INC., Defendant-Appellant.
    Fifth District
    No. 5—88—0675
    Opinion filed July 25, 1990.

      Robert L. Jackstadt, of Peper, Martin, Jensen, Maichel & Hetlage, of Wood River, for appellant.
    Floyd D. Peterson, Jr., of Law Offices of William W. Schooley, of Granite City, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, SCA Services, Inc., appeals from a judgment of the circuit court of Madison County entered after a jury verdict in favor of plaintiff, Kenneth S. Hartbarger, in the amount of $225,000 for the breach of an oral contract. In this cause, defendant raises the following issues: (1) whether the parol evidence rule and collateral contract doctrine bar plaintiff’s oral contract claim; (2) whether sufficient independent consideration, definiteness, or certainty existed to support the separate oral contract; (3) whether the trial court improperly instructed the jury by giving plaintiff’s instructions numbers 10 and 11; (4) whether the Statute of Frauds (Ill. Rev. Stat. 1979, ch. 59, par. 1 et seq.) barred plaintiff’s oral contract claim; and (5) whether the verdict is supported by the evidence. This court affirms.

Plaintiff originally owned a landfill near Granite City. In 1971, plaintiff and his partner sold the landfill to defendant, a Delaware corporation involved in the waste hauling and disposal business. Plaintiff later took a position with defendant and eventually became a vice-president and central division manager for defendant, controlling defendant’s operations in 30 States at a salary of $87,500 per year. His employment contract with defendant provided for an annual bonus of one-half his salary and severance pay of one-half his salary if plaintiff were ever terminated. Plaintiff was involved in an automobile accident in August 1979, in which he sustained physical injuries as well as memory loss. This accident was in no way related to his employment with defendant. Plaintiff eventually went back to work for defendant on October 10, 1979, but was terminated in January 1980.

Plaintiff and representatives of defendant had a meeting in Boston on February 19, 1980, concerning plaintiff’s termination. Defendant’s chairman of the board had given attorney Robert Popeo full authority to negotiate a deal on behalf of defendant. Plaintiff and defendant attempted to work out an agreement which would compensate plaintiff, as well as protect defendant from any competition with' plaintiff. The parties were able to reach an agreement in principle, but many items and terms were left open. No final agreement was reached at this time, and no papers were signed. A written agreement was not signed until September 24, 1980. In the interim, several meetings occurred and several promises were made. During the time between the parties’ first meeting on February 19, 1980, and the signing of a termination agreement on September 24, 1980, plaintiff became involved in a number of ventures in the landfill business that were in direct competition with defendant. These acquisitions occurred after March 27, 1980, when plaintiff’s attorney, John Farrell, sent a letter to defendant’s attorney, Popeo, indicating that because no written agreement had been sent to plaintiff by defendant, and since no payments to plaintiff had been made, the settlement talks were withdrawn. On April 25, 1980, Farrell sent another letter to Popeo renewing the settlement talks. Another meeting was held on September 10, 1980, to work out a final agreement. Plaintiff, his two attorneys, Farrell and Thomas Long, and defendant’s attorney, Popeo, attended this meeting. Popeo learned that plaintiff had acquired seven additional companies since the parties’ original meeting in February 1980. Plaintiff explained to Popeo that he had acquired a substantial amount of debt by starting these companies. In addition to the terms that had been discussed at the original meeting, i.e., severance pay, bonus, health insurance, plaintiff asked for an additional $150,000 to $200,000 for his newly acquired businesses. According to attorney Long, discussions took place as to the allocation of this $150,000 to $200,000 among three of plaintiff’s businesses on which defendant had options to purchase. These three businesses were known as the Trusik accounts, the Wagner landfill, and a hazardous material site referred to as “Hazmat.” All parties agreed that no final agreement was made at this meeting. Popeo testified that he made no representations to plaintiff or plaintiff’s attorneys about any additional compensation for the Trusik, Wagner, or Hazmat transactions.

The final meeting took place in St. Louis at plaintiff’s attorneys’ office. In attendance were plaintiff, his wife, Gaynell, plaintiff’s attorneys, Long and Farrell, and defendant’s representative, Popeo. At this meeting, defendant tendered a check through Popeo to plaintiff and his wife for $228,000. This check represented payment for 130 acres of land in Wilsonville, Illinois, and was made payable to the Richtone Corporation, a corporation held in trust and controlled by plaintiff. The termination agreement indicated that the $228,000 was allocated for real estate only. According to plaintiff and his attorneys, plaintiff then told Popeo that he would not sign any agreements unless he was paid an additional $200,000. According to plaintiff, Popeo then made a phone call after which he counteroffered a figure of $175,000. Plaintiff testified that he insisted he must receive $200,000, and Popeo finally agreed on behalf of defendant. Plaintiff and his attorneys, Long and Farrell, testified that Popeo suggested that the $200,000 be distributed in three separate transactions. This manner was suggested because Popeo had authority to approve transactions under $100,000 without approval from defendant’s board of directors. The termination agreement included an option agreement for defendant to buy the three previously mentioned properties of plaintiff — the Trusik accounts, the Wagner landfill, and the Hazmat site. The option agreement signed by the parties states, in pertinent part:

“2. Global hereby grants to SCA the option to acquire from Global the Trusik Business, other than the trucks and equipment listed on Schedule A attached hereto, for a price of Seventy Thousand Dollars ($70,000) to be paid in the same manner as Global is paying for its acquisition of the Trusik Business. Global represents and warrants that it is the owner of the Trusik Business, which consists primarily of certain contracts and accounts, free and clear of all claims, liens and encumbrances and has full right to convey the same to SCA.
3. Global hereby grants to SCA the option to acquire from Global the Wagner Business for the price to be paid therefor by Global, which price shall be payable in the same manner as payments are to be made to Wagner by Global under the Wagner Business Agreement. Global represents and warrants that upon closing under the Wagner Business Agreement, it will be the owner of the Wagner Business, which consists of certain equipment, contracts and accounts, free and clear of all claims, liens and encumbrances, except as set forth in the Wagner Business Agreement, and will have full right to convey the same to SCA.
4. Global hereby grants to SCA the option to acquire from Global the Wagner Landfill for the price to be paid therefor by Global, which price shall be payable in the same manner as payments are to be made to Wagner by Global under the Wagner Landfill Agreement. Global represents and warrants that upon closing under the Wagner Landfill Agreement it will be the owner of the Wagner Landfill free and clear of all claims, liens and encumbrances, except as set forth in the Wagner Landfill Agreement, and will have full right to convey the same to SCA.
5. Global hereby grants to SCA the option to acquire from Global the Hazmat site and license for the price and on the terms under which Global may acquire the Hazmat site and license under the Hazmat option. Global represents and warrants that, upon the grant and exercise of the Hazmat option, it will be the owner of the Hazmat site and license, free and clear of all claims, liens and encumbrances and will have the full right to convey the same to SCA.”

The additional $200,000 was to be distributed in the following manner: (1) $25,000 would be added to the written purchase price of $70,000 defendant had agreed to pay for the Trusik accounts; (2) $75,000 would be added to the purchase price of the Wagner landfill; and (3) $100,000 would be added to the purchase price of the Hazmat site. Plaintiff testified that he signed the termination and option agreements only because of Popeo’s promise to pay him an additional $200,000, which he felt would adequately compensate him for debts he had incurred by acquiring landfill businesses in direct competition with plaintiff during the interim between the first meeting and the parties’ final meeting. These businesses are collectively referred to as the Global Waste Services accounts. Popeo denies making promises for any additional compensation.

The termination agreement also provided for a no-competition clause. By signing the agreement, plaintiff agreed not to compete with defendant for a period of two years. Paragraph 1 of the termination agreement also provided:

“Hartbarger acknowledges receipt of payment in full of all salary, termination pay, and other compensation and benefits due to him as an employee of SCA, and agrees that he is not entitled to any further salary, termination pay, retirement or pension benefits or other compensation or benefits of any nature with respect to his employment by SCA or the termination thereof ***.”

Paragraph 12 also provided:

“This Agreement constitutes the entire agreement and understanding between the parties in relation to the subject matter hereof and there are no promises, representations, conditions, provisions or terms related thereto other than those set forth in this Agreement.”

As per the option agreement, defendant purchased the Trusik accounts from Global Waste Services of St. Louis, a corporation held by plaintiff, but for a higher price than appeared in the option agreement. Plaintiff received two checks from defendant in the amounts of $86,271.51 and $8,728.49, respectively, for a total of $95,000. Popeo testified that defendant believed the Trusik accounts were worth $140,000, and, thus, defendant had made a good business decision to purchase the Trusik accounts for $95,000. The options on the Wagner landfill and the Hazmat site were never exercised.

On January 24, 1983, plaintiff and Global Waste Services of St. Louis, Inc., filed a nine-count complaint against defendant. Counts I, IV and VII pleaded a cause of action under the Illinois Antitrust Act (Ill. Rev. Stat. 1979, ch. 38, par. 60 — 7). Counts II, V and VIII alleged breach of an oral contract by defendant. Counts III, VI and IX pleaded a cause of action for unjust enrichment. Before trial, on March 2, 1984, the trial court dismissed counts VII, VIII and IX. At the close of plaintiffs evidence, the trial court directed a verdict in favor of defendant on the antitrust and unjust enrichment causes of action contained in counts I, III, IV and VI. At the close of all the evidence, the trial court directed a verdict in favor of defendant on count V. The remaining issue was plaintiffs oral contract claim against defendant found in count II. The jury found in favor of plaintiff for $225,000.

The first issue we are asked to consider is whether the parol evidence rule and the collateral contract doctrine bar plaintiff’s oral contract claim. Defendant argues the termination agreement referred to the Trusik, Wagner, and Hazmat transactions and plaintiff should not be allowed to circumvent the parol evidence and collateral contract doctrines by alleging a separate oral contract. Defendant further argues that the written termination agreement between the parties explicitly provided that the agreement contained the entire understanding between them and superseded all previous agreements; therefore, no extrinsic evidence should have been considered or introduced construing the termination agreement. For these reasons, defendant contends that the trial court erred in denying its motion for summary judgment, directed verdict, and judgment notwithstanding the verdict. Plaintiff replies that the parol evidence rule does not bar evidence of the separate oral contract in the instant case since, first, the parol evidence rule does not apply to nonintegrated agreements. Plaintiff contends that the contracts in this case are nonintegrated; the option agreement, for example, provided that defendant could purchase the Trusik accounts for $70,000, but defendant actually paid $95,000. The contracts, therefore, are not integrated since they do not contain the final agreement between the parties. Second, plaintiff contends that the parol evidence rule is not a bar to evidence of the oral contract because plaintiff did not seek to vary any terms of the termination agreement and the terms of the oral contract are not inconsistent with the termination agreement. We agree.

Under the parol evidence rule, if an instrument appears complete, certain, and unambiguous, then parol evidence of a prior or contemporaneous agreement is inadmissible to vary the terms of the instrument. (Chicago White Metal Casting, Inc. v. Treiber (1987), 162 Ill. App. 3d 562, 569, 517 N.E.2d 7, 12.) However, whether a written contract was intended to be the complete and final agreement must be determined from the language of the contract and the circumstances of the case. (Bleck v. Stepanich (1978), 64 Ill. App. 3d 436, 439, 381 N.E.2d 363, 366.) Whether an oral contract exists, its terms and conditions, and the intent of the parties are questions of fact to be determined by the trier of fact, in this case, the jury. (Howard A. Koop & Associates v. KPK Corp. (1983), 119 Ill. App. 3d 391, 400, 457 N.E.2d 66, 73.) This determination should not be reversed unless it is contrary to the manifest weight of the evidence. 119 Ill. App. 3d at 400, 457 N.E.2d at 73.

Defendant contends that we may only consider the four corners of the written agreement; however, we find that we must look to the totality of the circumstances. The negotiations between the parties went on for an extended period of time, undeniably caused by delays of defendant. While defendant originally sought to keep plaintiff from competing against defendant in the landfill and waste management business, delays caused by defendant prompted plaintiff to acquire at least seven other waste management businesses between the parties’ first meeting on February 19, 1980, and their final meeting on September 24, 1980. For simplicity’s sake, these businesses were merged into the Global Waste Services accounts. It is undisputed that the parties signed an option agreement for the Trusik accounts, the Wagner landfill, and the Hazmat site. The written option agreement provided for a purchase price of $70,000 for the Trusik accounts, but failed to provide for price terms on the Wagner and Hazmat options. Defendant actually paid a total of $95,000 for the Trusik accounts. Defendant contends that it agreed to pay $25,000 more than the option provided only because more equipment was added to the transaction and because, overall, $95,000 was a good business deal. Plaintiff, on the other hand, testified that the additional $25,000 was paid because attorney Popeo, on behalf of defendant, had agreed to pay plaintiff an additional $200,000 to fairly compensate plaintiff for the Global Waste Services accounts and for his promise not to compete against defendant. The $200,000 was to be paid in three separate transactions, the first being an additional $25,000 for the Trusik accounts. Plaintiff contends the reason the parties agreed on three separate transactions was because if the transaction was for $100,000 or less, Popeo could complete the transaction without approval by the defendant’s board of directors. Plaintiff’s attorneys, Long and Farrell, gave virtually the same testimony as plaintiff concerning the additional $200,000. In our opinion, the jury could reasonably find that the payment of $95,000 for the Trusik accounts, originally priced at $70,000, signified that there was a separate, oral contract between the parties, and, therefore, the termination agreement was not the final, integrated agreement between the parties. We cannot say that this finding is against the manifest weight of the evidence.

Defendant further contends that because the written termination agreement between the parties explicitly stated that the agreement contained the entire understanding between the parties and superseded all previous agreements, no evidence should have been considered or introduced construing the termination agreement. We must, however, consider this integration clause in context. Paragraph 1 of the termination agreement provides, in pertinent part:

“Hartbarger’s employment by SCA is terminated as of the close of business on May 31, 1980. Hartbarger acknowledges receipt of payment in full of all salary, termination pay, and other compensation and benefits due to him as an employee of SCA, and agrees that he is not entitled to any further salary, termination pay, retirement or pension benefits or other compensation or benefits of any nature with respect to his employment by SCA or the termination thereof ***.”

Paragraph 12 then provides:

“This Agreement constitutes the entire agreement and understanding between the parties in relation to the subject matter hereof and there are no promises, representations, conditions, provisions or terms related thereto other than those set forth in this Agreement. This Agreement supersedes all previous understandings, agreements and representations between SCA and Hartbarger regarding the employment of Hartbarger by SCA and the termination of such employment, written or oral.”

Taken in proper context, we agree with plaintiff that these clauses refer solely to compensation and benefits due plaintiff as an employee of defendant. The previously cited paragraphs do not refer to plaintiff’s business acquisitions made between the time of the first meeting between the parties and their final meeting. The $200,000 did not attempt to vary the terms of the termination agreement between the parties. Rather, the $200,000 would adequately compensate plaintiff for his recently acquired businesses which he would be unable to be involved in under the terms of the noncompetition clause.

Defendant argues that the parol evidence rule bars evidence of an oral contract made contemporaneously with a written contract and cites the case of Roth v. Meeker (1979), 72 Ill. App. 3d 66, 389 N.E.2d 1248. In that case, suit was brought to recover damages to the plaintiffs’ pure-bred cattle-breeding operation allegedly resulting from the defendant’s refusal to vacate possession of premises leased to the plaintiffs from the purchaser of the defendant’s land. The defendant attempted to testify that he entered into an oral contract with the purchaser of his land to retain possession of certain lots around the farm buildings. The court held that the parol evidence rule barred this testimony, since it would have been normal for the parties to the written contract to have incorporated the oral contract subject matter in any prior or contemporaneous agreement.

We, however, find the Roth case distinguishable from the instant case. In Roth, the written contract provided for possession of the 364 acres of land sold to vest in the purchaser as of the date of the contract, April 9, 1976, with an exception for the dwelling house located on the farm. Possession of the home was to be retained by the defendant until October 1, 1976. The Roth court found that the evidence presented proved that the defendant was quitting the farming business. The main demonstration of this was defendant’s participation in a public auction held on April 10, 1976, to close out his farming operation. The Roth court concluded that the defendant’s situation at the time he entered into the contract with the purchaser was such that he did not need any agreement for possession of portions of the farm other than the house. The Roth court did not hold that parol evidence could never be used to prove the existence of a separate, contemporaneous oral contract between the parties.

In the instant case, the evidence demonstrated that the parties had been involved in negotiations for over seven months. Initially, Popeo had been given authority by defendant to work out a termination agreement with plaintiff on behalf of defendant. In a letter dated June 10, 1980, to plaintiff’s attorney, Farrell, Popeo admitted that the delays in finalizing a termination agreement were caused by him. The initial talks included discussions about a noncompetition clause. Once the talks fell apart and no agreement was signed, plaintiff formed a number of businesses which were in direct competition with defendant. Unlike Roth, we believe the evidence presented here shows the need for a separate oral contract to compensate plaintiff adequately for his businesses acquired in the interim and for his agreement not to compete further with defendant. We also believe that Popeo’s delays in executing a termination agreement with defendant adequately explained the reasons for the separate oral contract. Popeo agreed to pay plaintiff an additional $200,000 in three separate transactions in order to avoid going to the board of directors for approval. Had the termination agreement been completed -within a matter of weeks as originally planned, plaintiff would not have formed and acquired these new business ventures which were in direct competition with defendant, and there would have been no need to pay plaintiff an additional $200,000.

By our decision, we by no means wish to encourage these types of side agreements between parties. Under the facts in the instant case, however, the jury’s determination that there was a separate oral contract to compensate plaintiff for his business ventures in direct competition with defendant was supported by the testimony of plaintiff, plaintiff’s attorneys, and defendant’s own actions in paying $95,000 for the Trusik accounts and will not be reversed by this court.

The second issue we are asked to address is whether sufficient independent consideration, definiteness, or certainty existed to support the separate oral contract. First, defendant argues that plaintiff failed to establish the existence of independent consideration from the written contract to support the oral contract. Defendant contends that the oral agreement lacked consideration because the parties had already agreed to options on the Trusik accounts, the Wagner landfill, and the Hazmat site in a written contract. Second, defendant argues that the oral contract lacked sufficient definiteness or certainty as evidenced by plaintiff’s testimony as well as plaintiff’s attorneys’ testimony.

Consideration for a promise has been defined in Restatement (Second) of the Law of Contracts, section 71, as:

“(1) To constitute consideration, a performance or a return promise must be bargained for.
(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.
(3) The performance may consist of
(a) an act other than a promise, or
(b) a forbearance, or
(c) the creation, modification, or destruction of a legal relation.” (Restatement (Second) of Contracts §71 (1981).)

It is well settled that consideration is an essential element, and it is necessary to the validity or enforceability of a contract. (Wickstrom v. Vern E. Alden Co. (1968), 99 Ill. App. 2d 254, 260, 240 N.E.2d 401, 404.) Courts do not ordinarily inquire into the adequacy of consideration, and any consideration, however slight, is legally sufficient to support a promise, except where the disparity is so gross as to raise a presumption of fraud. 99 Ill. App. 2d at 261, 240 N.E.2d at 405.

The written contract in the case at bar set forth various terms with which plaintiff would have to comply in order to receive benefits under the termination agreement. For example, plaintiff would not be able to compete with defendant for a period of two years under the terms of the written contract. However, plaintiff had seven businesses in direct competition with defendant before signing the termination agreement. In order to be able to sign the written contract, plaintiff had to dispose of these businesses. He explained that he had mortgages on these businesses and needed at least $200,000 for these businesses to make it worth his while to sign the termination agreement. For simplicity’s sake, plaintiff merged these businesses into the Global Waste Services accounts. We find the transfer of the Global Waste Services accounts, which were businesses acquired by plaintiff during the period of limbo between his termination from defendant’s employment and his signing of the termination agreement, was sufficient consideration to support the oral contract. Defendant’s promise to pay plaintiff an additional $200,000 is, therefore, legally enforceable.

Defendant also contends that the oral contract lacked sufficient definiteness and certainty. As we previously explained, whether an oral contract exists, its terms and conditions, and the intent of the parties are questions of fact to be determined by the trier of fact. (Howard A. Koop & Associates v. KPK Corp. (1983), 119 Ill. App. 3d at 400, 457 N.E.2d at 73.) This determination should not be reversed unless it is contrary to the manifest weight of the evidence.

Defendant points out that, in the instant case, attorney Long testified that Popeo agreed to add on somewhere in the range of between $75,000 and $100,000 for the purchase of the Hazmat option. Defendant also points out that plaintiff made the statement, “In any event, Popeo was going to pay me my $200,000.” Defendant contends that such testimony proves that any oral agreement lacked sufficient definiteness and clarity. On the other hand, plaintiff testified that under the terms of the oral contract, defendant had agreed to pay him an additional $200,000 to be paid in three installments with $25,000 being added to the Trusik option, $75,000 being added to the Wagner option, and $100,000 being added to the Hazmat option. The jury also heard testimony and saw evidence that defendant did, in fact, pay an additional $25,000 for the Trusik option by paying a total of $95,000 when $70,000 was the price written in the termination agreement. Under these facts, we cannot say that it was against the manifest weight of the evidence for the jury to find that there was a separate oral contract between the parties under which plaintiff was to be paid an additional $200,000.

Along this same line, defendant argues that plaintiff’s instructions 10 and 11 were in error because they did not allow the jury to determine the price terms of the contract and did not allow the jury to consider what plaintiff was to do in exchange for $200,000.

Plaintiff’s instruction number 10 read as follows:

“Plaintiff’s Complaint alleges that Defendant breached an oral agreement with the Plaintiff.
Plaintiff must prove the following propositions:
A. That the Plaintiff and Defendant entered into an oral agreement for $200,000.00;
B. That the Defendant breached the oral agreement;
C. That Plaintiff has sustained damages due to Defendant’s breach of the oral agreement.
The Defendant denies there was an oral agreement, denies the Plaintiff sustained damages therefrom, and denies that Plaintiff sustained damages to the extent claimed.”

Plaintiff’s instruction number 11 read as follows:

“The Plaintiff has the burden of proving each of the following propositions:
First, that Plaintiff and Defendant entered into an oral agreement for $200,000.00;
Second, that Defendant breached the oral agreement;
Third, that the Plaintiff sustained damages due to the Defendant’s breach of the oral agreement.
If you find from your consideration of all the evidence that each of the propositions required for the Plaintiff has been proved then your verdict should be for the Plaintiff. If, on the other hand, you find from your consideration of all the evidence, that any one of the propositions the Plaintiff is required to prove has not been proved, then your verdict should be for the Defendant.”

We have carefully reviewed the transcript of the instructions conference. At that time, defendant objected to the above-cited instructions based upon the fact that neither instruction allowed the jury to consider whether there was adequate consideration for the separate oral contract. Since the question whether adequate consideration exists is a question of law for the trial court (Lesnik v. Estate of Lesnik (1980), 82 Ill. App. 3d 1102, 403 N.E.2d 683), defendant’s argument failed, and the instructions were given. Defendant did not object at trial to the insertion of the $200,000 price term. On the contrary, defendant’s own tendered instruction, which defendant contends alleviated the problems found in instructions 10 and 11, includes the $200,000 price term. Defendant’s tendered instruction specifically reads:

“The Plaintiff has the burden of proving each of the following propositions.
First, there was an oral agreement entered into between the Plaintiff and Defendant in which Defendant agreed to pay Plaintiff $200,000.00, and Plaintiff agreed to do something he was not already obligated to do or Plaintiff refrained from doing something he was entitled to do;
Second, that the Defendant breached the oral agreement;
Third, that the Plaintiff sustained damages due to the Defendant’s breach of the oral agreement.”

We need not reach the merits of defendant’s argument because it has been waived by the failure of defendant to object specifically to the price term at the instructions conference (Lawson v. Belt Ry. Co. (1975), 34 Ill. App. 3d 7, 24, 339 N.E.2d 381, 396), and further waived because defendant’s own tendered instruction included the $200,000 price term.

The fourth issue we are asked to consider is whether the Statute of Frauds bars plaintiff’s oral contract claim. Defendant contends that assuming, arguendo, an oral agreement to pay plaintiff $200,000 did exist, it would be unenforceable under the Statute of Frauds for three reasons: (1) defendant cannot answer for the debt of another; (2) the contract was to be performed over a period of years; and (3) the contract was for the sale of land.

Defendant is correct in that the Statute of Frauds provides that an action cannot lie on one’s promise to answer for the debt of another unless such promise is in writing. (Ill. Rev. Stat. 1979, ch. 59, par. 1.) It has been held that a promise to pay the debt of another which is not written and signed cannot be enforced either in law or in equity. (Brown & Shinitzky Chartered v. Dentinger (1983), 118 Ill. App. 3d 517, 519, 455 N.E.2d 128, 129.) However, the promise to answer for the debt of another “has been defined as an undertaking by a person not before liable, for the purpose of securing or performing the same duty for which the original debtor continues to be liable.” 72 Am. Jur. 2d Statute of Frauds §179, at 709 (1974).

In the instant case, the evidence presented was that defendant promised to pay plaintiff $200,000. The $200,000 figure was apparently agreed upon because plaintiff amassed substantial debt by acquiring landfill property and businesses during the interim between the parties’ first meeting concerning the termination agreement and the actual signing of the agreement. Plaintiff introduced evidence of this debt to show why the $200,000 amount was agreed upon. Plaintiff testified that he told attorney Popeo, “What you need to do is give me a couple of hundred thousand dollars, and that will cover the debt with a little something for the non-compete.” Therefore, plaintiff was not asking defendant to pay his creditors, but rather, was asking for enough money so that he could pay off his creditors and have some money left for himself in return for his promise not to compete with defendant. No evidence was presented that defendant would become liable on the bank debt owed by plaintiff.

Defendant next argues that the oral contract violated the Statute of Frauds because the $200,000 was to be paid over a period of years. Specifically, defendant contends that since the payments were scheduled over a four- to five-year period, the contract is unenforceable because it was not reduced to writing.

The Illinois Statute of Frauds provides, in pertinent part:

“[N]o action shall be brought *** upon any agreement that is not to be performed within the space of one year from the making thereof ***.” (Ill. Rev. Stat. 1979, ch. 59, par. 1.)

In Illinois, this has been determined to mean that a contract is unenforceable only if it is impossible to perform the contract within one year. (Brudnicki v. General Electric Co. (N.D. Ill. 1982), 535 F. Supp. 84, 86; Sinclair v. Sullivan Chevrolet Co. (1964), 45 Ill. App. 2d 10, 14, 195 N.E.2d 250, 252.) If, however, it appears from a reasonable interpretation of the terms of the agreement that it is capable of performance within one year, the Statute of Frauds is inapplicable. Stein v. Malden Mills, Inc. (1972), 9 Ill. App. 3d 266, 271, 292 N.E.2d 52, 57.

In the instant case, the $200,000 payment by defendant was to be made in three transactions. While attorney Long testified that these payments were scheduled over a period of four to five years, we find that these transactions could have been completed within one year. The evidence adduced at trial indicates that it was not impossible to perform the oral contract within one year; therefore, the oral contract did not violate the Statute of Frauds.

Defendant next contends that because payment was to be made by exercising the options for the sale of property, the oral contract fell within the Statute of Frauds and was in violation of said statute. Contrary to defendant’s assertion, the option contracts on the Trusik, Wagner, and Hazmat properties were reduced to writing. The parties had, however, agreed to add $200,000 more to the purchase price of these transactions in order to adequately compensate plaintiff for the Global Waste Services accounts. We do not, therefore, consider this a contract for the sale of land. Likewise, we find that the contract does not violate the Statute of Frauds provision of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 201). An oral contract for the sale of goods, in this case the Global Waste Services accounts, which has been partially performed, is enforceable at the insistence of either party. (Allied Wire Products, Inc. v. Marketing Techniques, Inc. (1981), 99 Ill. App. 3d 29, 37, 424 N.E.2d 1288, 1294.) Defendant’s payment of $95,000 rather than the written term of $70,000 constitutes partial performance on the oral contract and, thus, takes the oral contract out of the Statute of Frauds and removes the statute as a bar to enforcement of the contract.

The final issue we are asked to consider is whether the verdict is supported by the evidence. Defendant argues that the jury’s verdict was excessive and was not supported by the evidence. For these reasons, defendant contends it is entitled to a new trial or, in the alternative, a remittitur. Specifically, defendant argues that the jury’s verdict of $225,000 placed plaintiff in a better position than he would have been had the oral contract been performed. Defendant argues that since plaintiff had already been paid $25,000 on the Trusik accounts, plaintiff was entitled to recover only $175,000. Defendant contends the only logical explanation for the award of $225,000 was that the jury speculated as to the amount of interest accumulating on plaintiff’s loans, as no evidence as to the amount of interest plaintiff paid was presented. Plaintiff replies that the jury has some latitude in returning the amount of damages and the record adequately supports the verdict. We agree.

The question of damages is largely within the discretion of the jury, and courts of review will not interfere with a jury’s assessment of damages unless:

“(1) the award is palpably inadequate or a proved element of damages has been ignored; (2) the amount of the verdict is shown to be erroneous or the result of passion or prejudice; or (3) it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relationship to the loss suffered by the plaintiff.” (Ryan v. E.A.I. Construction Corp. (1987), 158 Ill. App. 3d 449, 463, 511 N.E.2d 1244, 1253.)

A person breaching a contract can be held liable for any damages that may fairly and reasonably be considered as arising from the breach in light of the facts which were known or should have been known. Naiditch v. Shaf Home Builders, Inc. (1987), 160 Ill. App. 3d 245, 267, 512 N.E.2d 1027, 1240.

A review of the record in the instant case leads us to conclude that the jury award was properly based on the evidence. Plaintiff presented sufficient evidence concerning the amount he owed on the Global Waste Services debt and interest accruing thereon at at least two separate banks. Plaintiff also presented evidence as to the amounts he paid out of his own pocket on the Global Waste Services debt. While the jury is not allowed to speculate, its members are allowed to use their experiences in life in determining the amount of money which will adequately compensate plaintiff for a breach of contract. (Illinois Pattern Jury Instructions, Civil, No. 1.04 (2d ed. 1971).) The award of $225,000 does not put plaintiff in a better position than he would have been had the oral contract been performed nearly eight years ago as originally scheduled. This verdict in no way shocks the judicial conscience. Instead, we find the award to be within the jury’s discretion, and we will not interfere with the jury’s determination.

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

Affirmed.

LEWIS, P.J., and HOWERTON, J., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEONARD JOHNSON, Defendant-Appellant.
    Fifth District
    No. 5—89—0270
    Opinion filed July 25, 1990.

      Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville, and Steven J. Della Rose, of Riverdale (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Unhappy with the outcome of a two-on-two basketball game, defendant got a gun and shot his opponent. Injured, the opponent lived.

Defendant was charged with armed violence, attempted murder, and aggravated battery.

There was a jury trial. After defendant had heard the testimony of five State’s witnesses, he withdrew his plea of not guilty and pleaded guilty to armed violence and aggravated battery. The attempted murder charge was dismissed as agreed.

A factual basis was given. It was clear; defendant had fired only once.

The circuit court of St. Clair County honored the plea agreement and sentenced defendant to concurrent prison terms of 13 years for armed violence and five years for aggravated battery.

One shot. One injury. Two convictions.

Defendant filed a pro se motion to withdraw his guilty pleas, claiming that a 13-year sentence was excessive and that his trial counsel had been ineffective.

Counsel was appointed, who then filed an amended motion, claiming that the factual basis was insufficient and that defendant had not been properly admonished.

Both motions were denied.

On appeal, defendant argues that the aggravated battery conviction must be vacated because it is based on the same act as the armed violence conviction. We agree and vacate defendant’s aggravated battery conviction and five-year sentence thereon.

In Illinois, it is well established that multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges. People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.

The elements of the offense of armed violence are simply stated: “A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois law.” (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2.) Therefore, “[o]ne cannot violate the armed violence statute without first committing a felony. The alleging of that felony in the armed violence charge has the effect, upon conviction, of making it a necessarily included offense.” People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477, 479.

Here, there was only one act, a single shot. The convictions for both armed violence and aggravated battery, therefore, were improper, and the aggravated battery conviction must be vacated. People v. Bridges (1989), 188 Ill. App. 3d 155, 544 N.E.2d 40; People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477; People v. Kujawa (1985), 132 Ill. App. 3d 828, 477 N.E.2d 759.

On appeal, the State does not argue that defendant’s aggravated battery conviction and five-year sentence are proper, but instead argues that this issue has not been preserved for appellate review, that it has been waived because: (1) defendant failed to include this issue in his motions to withdraw his guilty plea; and (2) defendant’s conviction and sentence were the result of an agreement voluntarily entered into by defendant. We do not accept either argument.

Illinois Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)) provides that, “[u]pon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived.”

In People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221, the supreme court of Illinois noted that the purpose of Rule 604(d) is both to insure that a defendant’s constitutional rights are protected and to avoid abuses by a defendant. The court expressly stated that rules such as Rule 604(d) “concerning criminal defendants and guilty pleas are in fact rules of procedure and not suggestions.” People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221.

There is an exception to the waiver rule, however. Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)), commonly known as the “plain error rule,” allows a reviewing court, in its discretion, to rule on plain errors or defects which affect substantial rights. People v. Smalley (1984), 122 Ill. App. 3d 70, 77, 460 N.E.2d 866, 870.

Multiple convictions for the same act are plain error. People v. Cox (1972), 53 Ill. 2d 101, 291 N.E.2d 1.

And, besides being plain error, the conviction and sentence on the

lesser offense are void, which allows a defendant to attack the void judgment entered thereon, notwithstanding his failure to satisfy Rule 604(d). People v. Perruquet (1989), 181 Ill. App. 3d 660, 537 N.E.2d 351.

In People v. Perruquet (1989), 181 Ill. App. 3d 660, 537 N.E.2d 351, we held that when the judgment of the circuit court is void, it can be attacked at any time. Specifically, we stated:

“[T]he argument that a judgment in a criminal case is void is, as we have indicated, a matter which can be raised at any time. This is so regardless of whether the argument was properly preserved for review.” Perruquet, 181 Ill. App. 3d at 663-64, 537 N.E.2d at 353-54.

Is defendant’s aggravated battery conviction void?

In People v. Schlenger (1958), 13 Ill. 2d 63, 147 N.E.2d 316, a defendant was convicted of both armed robbery and grand larceny. On appeal, our supreme court recognized that because armed robbery necessarily involved an unlawful taking, defendant’s grand larceny conviction was “unnecessary” and “superfluous.” The court, therefore, reversed the grand larceny conviction because it could prejudice defendant’s parole opportunities. (People v. Schlenger (1958), 13 Ill. 2d 63, 66, 147 N.E.2d 316, 318.) While Schlenger used the words “unnecessary” and “superfluous” to describe the grand larceny conviction, the term “void” was absent.

Since more than one conviction cannot result from the same physical act, where courts improperly have imposed multiple convictions, appellate courts have vacated the improper conviction. (See, e.g., People v. Bridges (1989), 188 Ill. App. 3d 155, 544 N.E.2d 40; People v. Kujawa (1985), 132 Ill. App. 3d 828, 477 N.E.2d 759; People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.) However, those cases which vacate the improper convictions do not use the term “void.”

According to Black’s Law Dictionary, to “vacate” means “[t]o render an act void.” (Black’s Law Dictionary 1388 (5th ed. 1979).) Therefore, we hold that where a defendant receives multiple convictions for both armed violence and the underlying felony, and a single physical act is the basis for both offenses, the underlying felony conviction is void and, therefore, must be vacated.

Here, we hold that defendant’s aggravated battery conviction is void. Because the aggravated battery conviction is void, defendant can attack the circuit court’s void judgment at any time, even though defendant did not include the objection in his motion to withdraw the guilty plea. People v. Perruquet (1989), 181 Ill. App. 3d 660, 537 N.E.2d 351.

The State also argues that because defendant agreed to plead guilty to the aggravated battery charge as well as to the more serious charge of armed violence, defendant now cannot complain of the aggravated battery conviction, and relies on People ex rel. Bassin v. Isreal (1975), 31 Ill. App. 3d 744, 335 N.E.2d 53.

Isreal does not apply. It is distinguishable. It also is limited to its own facts.

In Isreal, defendant plea bargained for a reduced sentence in return for a plea of guilty to attempted voluntary manslaughter, an offense that does not exist. The court held that defendant received a benefit — a reduced and certain sentence — by giving up a jury trial and an uncertain result. The basis of the bargain was a plea to a nonexistent crime. Therefore, the benefit received caused the court to hold defendant to his bargain. The result is not surprising. Had the conviction been reversed, it is doubtful that Isreal could have been recharged with any meaningful offense.

In short, Isreal stands for the proposition that it is not unlawful for the State and the defendant to bargain for a plea of guilty to a nonexistent crime, if defendant gets a benefit.

In contrast, in the case at bar, defendant did not plead to a nonexistent crime in return for a reduced sentence. Therefore, the theory that supports the result in Isreal is not here present. Instead this case is governed by the principle that multiple convictions for the same act are unlawful, and therefore, defendant’s consent cannot cure the improper nature of multiple convictions. People v. Kujawa (1985), 132 Ill. App. 3d 828, 477 N.E.2d 759.

Defendant's conviction and five-year concurrent sentence for aggravated battery are vacated.

Defendant did not pursue his claim of ineffective assistance of counsel.

Judgment vacated in part.

RARICK and HARRISON, JJ., concur.


author: JUSTICE HARRISON

text:
    GARY R. BEASLEY et al., Plaintiffs-Appellants, v. ST. MARY’S HOSPITAL OF CENTRALIA et al., Defendants-Appellees.
    Fifth District
    No. 5—89—0003
    Opinion filed July 26, 1990.

      Bruegge & Becker, of Breese (William J. Becker, of counsel), for appellants.
    James W. Wham, of Wham & Wham, of Centraba, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiffs, Dr. Gary R. Beasley and Total Health Physicians, S.C. (THP), appeal from a judgment of the circuit court of Marion County which dismissed, with prejudice, their fifth amended complaint against defendants, St. Mary’s Hospital of Centralia and Sister M. Clarette. The dismissal was made pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), and the sole question presented for our review is whether the circuit court erred in concluding that plaintiffs’ complaint failed to state a cause of action upon which relief may be granted. (See Wooded Shores Property Owners Association, Inc. v. Mathews (1976), 37 Ill. App. 3d 334, 337, 345 N.E.2d 186, 189.) For the reasons which follow, we affirm in part and reverse in part and remand for further proceedings.

In ruling on a motion to dismiss, a court must accept as true all well-pleaded facts in the pleading attacked, as well as all reasonable inferences which can be drawn from those facts that are favorable to the pleader. (Bertetto v. Sparta Community Unit District No. 140 (1989), 188 Ill. App. 3d 954, 955, 544 N.E.2d 1140, 1141.) A cause should not be dismissed on the grounds that the pleadings fail to state a cause of action unless, clearly, no set of facts could be proved under the pleadings which would entitle the plaintiff to relief. (188 Ill. App. 3d at 955, 544 N.E.2d at 1141.) Where, however, a complaint is stricken and the plaintiff does not seek leave to amend, this will be considered an election to stand by the stricken complaint, and if the lawsuit is dismissed, the cause of action must stand or fall upon the contents of that complaint alone. Robbins v. City of Madison (1990), 193 Ill. App. 3d 379, 381, 549 N.E.2d 947, 948.

Such an election was made in this case. The record before us shows that plaintiffs amended their complaint several times during the course of this litigation. Their fourth amended complaint was ultimately dismissed for failure to state a cause of action, and the circuit court granted them leave to amend their complaint once again, which they did. After their fifth amended complaint was dismissed, however, plaintiffs advised the circuit court that they did not wish to make any further amendments. Accordingly, it is solely on the sufficiency of the allegations set forth in their fifth and final amended complaint that the viability of plaintiffs’ cause of action must turn.

Plaintiffs’ fifth amended complaint contains eight counts. Counts I and II are based on breach of contract. Counts III through VIII allege defamation. We shall consider the sufficiency of each of these counts seriatim.

The breach of contract claim asserted in count I is brought by plaintiff Beasley against defendant St. Mary’s Hospital. According to the allegations in that count, Beasley was hired by St. Mary’s Hospital as an emergency room physician. The terms of his employment were contained in a written agreement which is attached as an exhibit to the complaint. The agreement was signed by Beasley and by defendant Sister M. Clarette, on behalf of defendant St. Mary’s Hospital, on February 25, 1986. By its terms, the agreement was to expire on September 30, 1987, subject to certain qualifications. Paragraph 26 of the agreement provided, however, that plaintiff Beasley

“shall meet his obligation to provide services under the terms of this Agreement including but not limited to (a) meeting and continuing to meet the criteria for medical staff bylaws, (b) having been granted and maintaining clinical privileges to practice commensurate with the procedures he shall be performing, (c) remaining satisfactory to the Hospital in the performance of his duties, and (d) complying with the Hospital and medical staff bylaws, rules and regulations, and with the policies and directives of the Hospital and the Critical Care Committee of the medical staff. If at any time [Beasley] fails to meet these requirements, the Hospital may, at its option, immediately terminate this Agreement.”

Beasley avers that from February 25, 1986, until September 24, 1986, he performed “all of his obligations under said contract in a professional manner and performed all other conditions precedent under the contract,” but that on September 24, 1986, St. Mary’s Hospital wrongfully breached the agreement by terminating his services. The notice of termination, signed by defendant Sister M. Clarette in her capacity as president and chief executive officer of St. Mary’s, is attached as a second exhibit to the complaint. That notice states:

“Dear Dr. Beasley:
You received a letter from Mr. Philip Azar, hospital attorney, formally notifying you that in the event you are the cause of any future incidents while functioning as the Emergency Room physician, the Hospital will exercise its option to terminate your services under the Emergency Room agreement.
On September 13, 1986, Mr. Clyde Wangler presented himself at St. Mary’s Hospital Emergency Room in physical distress. After review of the entire incident, your unwillingness to provide the minimal amount of emergency intervention in lieu of the arrival of Dr. Pernot, in my estimation, borders on gross neglect. St. Mary’s Hospital cannot and will not tolerate this type of patient care in our Emergency Room.
For this reason, this letter serves as an official notice that your contractual arrangement as an Emergency Room physiclan is terminated effective immediately.
The second incident that pales when compared to the Wangler case occurred on September 19, 1986 when irresponsible opinions were expressed by you in an audible manner regarding a patient seeking care at St. Mary’s Hospital. The patient clearly heard you state that she should be charged a million dollars for coming here with a sore throat. Once again, you have been warned about this disruptive and unprofessional behavior. We will not tolerate this any further.”

Beasley alleges that St. Mary’s decision to terminate his services constituted a breach of the parties’ agreement because the accusations made against him by Sister M. Clarette in the foregoing letter regarding his failure to provide adequate care to Mr. Wangler were untrue, and he did, in fact, perform his duties under the agreement in an objectively reasonable fashion. Beasley further alleges that as a direct and proximate result of St. Mary’s breach of the agreement, he sustained substantial pecuniary losses.

Count II of plaintiffs’ complaint is based on the same theory of recovery and alleges the same basic facts as count I. The only significant difference is that count II is brought on behalf of plaintiff THP, not Beasley. In that count, THP claims that it is entitled to damages for St. Mary’s breach of contract with Beasley because Beasley had an agreement with THP under which all monies which he received in payment for his performance of professional services belonged to THP. THP alleges that St. Mary’s Hospital had been notified that payments due Beasley under his emergency room agreement were to be made to THP and that THP had the right to receive income under the emergency room agreement as Beasley’s assignee.

We agree that counts I and II were properly dismissed by the circuit court. As a general rule, a private hospital has the right to exclude any physician from practicing therein. Accordingly, decisions of private hospitals respecting the termination or curtailment of existing privileges of doctors on their medical staffs are subject only to limited judicial review to determine whether such decisions were rendered in compliance with the bylaws of the institution. (Pulido v. St. Joseph Memorial Hospital (1989), 191 Ill. App. 3d 694, 700, 547 N.E.2d 1383, 1388.) No violation of the hospital’s bylaws is alleged here.

Plaintiffs nevertheless claim that they are entitled to redress based on the terms of the contractual agreement between Beasley and St. Mary’s Hospital. Their view, apparently, is that the contract afforded Beasley greater protection against termination than he would have had under the bylaws alone. In fact, the contrary is true. The agreement specifically provides that it controls in the event of any conflict between the terms of the agreement and the medical staff bylaws of St. Mary’s Hospital. Under the agreement, Dr. Beasley was not automatically entitled to the hearing and appeal rights set forth in the medical staff and hospital bylaws in the event of termination of the agreement by St. Mary’s Hospital, and Dr. Beasley could be terminated for reasons other than noncompliance with the rules, regulations, policies, directives and bylaws of the hospital and medical staff. Pursuant to paragraph 26, which we have quoted, the hospital had the contractual right to immediately terminate the agreement with Dr. Beasley, at its option, if Dr. Beasley did not “remain satisfactory” to the hospital in the performance of his duties.

Contracts in which the promisor’s performance is conditioned upon its satisfaction with the promisee’s performance have traditionally been divided into two groups, depending upon whether the nature of the promisor’s satisfaction is objective or subjective. In contracts involving matters of fancy, taste, sensibility and judgment, the nature of the promisor’s satisfaction is subjective. (Ray v. Georgetown Life Insurance Co. (1981), 94 Ill. App. 3d 863, 865, 419 N.E.2d 721, 722.) In such contracts, the decision as to whether a party is satisfied is completely reserved to the party for whose benefit the clause was inserted. (Forman v. Benson (1983), 112 Ill. App. 3d 1070, 1074, 446 N.E.2d 535, 538.) That party is the sole judge of his satisfaction, “without regard to the justice or reasonableness of his decision, and a court or jury cannot say that such party should have been satisfied when he asserts that he is not.” (Ray v. Georgetown Life Insurance Co., 94 Ill. App. 3d at 865, 419 N.E.2d at 722.) In contracts involving operative fitness or mechanical utility, on the other hand, the nature of the promisor’s satisfaction is objective, i.e., that of a reasonable man. Personal service contracts such as the agreement involved in this case generally fall within the first of these two categories. (94 Ill. App. 3d at 865, 419 N.E.2d at 722.) Accordingly, we construe the agreement at issue in this case as allowing termination of the agreement upon the subjective dissatisfaction of St. Mary’s Hospital with Dr. Beasley’s performance.

Because the contract incorporated a subjective satisfaction standard, plaintiffs were required to plead that St. Mary’s Hospital terminated the contract before the expiration of the terms specified therein, and either (1) that St. Mary’s was not dissatisfied -with Dr. Beasley, or (2) that St. Mary’s, whether dissatisfied or not, did not terminate Beasley on account of its dissatisfaction with him. (See 94 Ill. App. 3d at 866, 419 N.E.2d at 722-23.) Plaintiffs did not do this properly. Although they allege that St. Mary’s “termination of the contract was not because Dr. Beasley failed to remain satisfactory to the hospital in the performance of his duties,” the only basis they give for this conclusion is their claim that Dr. Beasley did not, in fact, engage in the improper conduct alleged in the termination letter and that he “performed his duties in an objectively reasonable fashion.” We do not believe that this is enough.

Where, as here, a contract incorporates a subjective satisfaction standard, the objective reasonableness of the obligee’s performance is not dispositive. If the obligor is dissatisfied with the obligee’s performance, the contract may be terminated even if the obligor’s dissatisfaction is unreasonable. The only limitation is that the obligor’s decision to terminate the contract based on dissatisfaction must be made honestly in accordance with his duty of good faith and fair dealing. (Restatement (Second) of Contracts §228, comment a, at 182 (1981).) Plaintiffs’ fifth amended complaint contains no factual allegations which suggest that this was not the case here. Accordingly, we cannot say that the circuit court erred in dismissing counts I and II with prejudice for failure to state a cause of action.

We turn then to the sufficiency of counts III through VIII. In those counts, plaintiff Beasley seeks recovery from defendant St. Mary’s Hospital (counts III, IV and VII) and Sister Clarette (counts V, VI and VIII) based on defamation. Each of these counts is based on the contents of the termination letter sent to Beasley by Sister Clarette in her capacity as chief executive officer of St. Mary’s Hospital. In counts III and V, Beasley simply sets out his basic defamation claims and asks only for compensatory damages. Counts IV and VI seek punitive damages based on willful and wanton misconduct. Counts VII and VIII also seek punitive damages, but on the grounds that if the defamatory matter should be found to fall within a qualified privilege, defendants should nevertheless be held liable because they acted with actual malice.

Although each of the defamation counts refers generally to Sister Clarette’s termination letter, the specific portion of that letter to which Beasley takes exception is the second paragraph, which we shall set forth again. It states:

“On September 13, 1986, Mr. Clyde Wangler presented himself at St. Mary’s Hospital Emergency Room in physical distress. After review of the entire incident, your unwillingness to provide the minimal amount of emergency intervention in lieu of the arrival of Dr. Pernot, in my estimation, borders on gross neglect. St. Mary’s Hospital cannot and will not tolerate this type of patient care in our Emergency Room.”

Beasley alleges that these accusations of wrongdoing are completely untrue and that they are defamatory per se. Words are considered defamatory per se in Illinois if they (1) impute the commission of a criminal offense; (2) impute infection with a loathsome communicable disease; (3) impute inability to perform or want of integrity in the discharge of duties of office or employment; or (4) prejudice a party, or impute lack of ability, in his trade, profession or business. (Mittelman v. Witous (1989), 135 Ill. 2d 220, 238-39, 552 N.E.2d 973, 982.) To the extent that the letter here charges Beasley, an emergency room physician, with having been unwilling to provide a patient with “the minimal amount of emergency intervention,” we think that it clearly falls within the third and fourth of these categories.

Defendants nevertheless argue that the letter is not actionable because it is nothing more than an opinion. This argument must be rejected. In Mittelman v. Witous (1989), 135 Ill. 2d 220, 239-44, 552 N.E.2d 973, 982-84, our supreme court did hold that even words which could be considered defamatory per se riiay not be actionable if they are constitutionally protected expressions of opinion. Since then, however, the United States Supreme Court has ruled that no additional, separate consitutional privilege for opinion exists. (Milkovich v. Lorain Journal Co. (1990), 497 U.S._, 111 L. Ed. 2d 1, 110 S. Ct. 2695.) Although the Supreme Court continues to recognize that statements that cannot reasonably be interpreted as stating actual facts about an individual are protected from liability (497 U.S. at_, 111 L. Ed. 2d at 19, 110 S. Ct. at 2706), we do not read the allegation here regarding Beasley’s failure to provide minimal emergency intervention as anything other than a statement of fact.

We likewise find no merit to defendants’ conclusory argument that the statements contained in the letter are not actionable because they could reasonably be innocently construed. We can see no innocent, nondefamatory construction for the statements contained in the letter. See Erickson v. Aetna Life & Casualty Co. (1984), 127 Ill. App. 3d 753, 755-62, 469 N.E.2d 679, 681-85.

For the letter to be actionable, it must, of course, have been communicated to some person other than Beasley. (Beauvoir v. Rush-Presbyterian-St. Luke’s Medical Center (1985), 137 Ill. App. 3d 294, 300-01, 484 N.E.2d 841, 845.) Here, plaintiff’s complaint alleges, and the termination letter attached to the complaint shows, that the defamatory statements at issue in this case were published by defendants to third parties, including Dr. Jerry Beguelin; the hospital’s attorney, Phillip Azar; the clerical staff and owners of THP; and an individual named Anthony Del Vecchio.

Defendants claim that counts III through VI are nevertheless deficient “because Beasley failed to properly allege any facts to show that publication of the letter to these third parties was not subject to a qualified privilege.” This argument is not well taken. Privilege is regarded as an affirmative defense. (53 C.J.S. Liable and Slander §151 at 229 (1987); see Dark v. U.S. Fidelity & Guaranty Co. (1988), 175 Ill. App. 3d 26, 35, 529 N.E.2d 662, 669.) As such, there is no need for a plaintiff to plead facts showing that a communication is not privileged in order to properly allege a cause of action for defamation. While a motion to dismiss may properly raise the issue of privilege where the allegedly defamatory document and the complaint affirmatively show that the document is protected by a privilege (Edwards v. University of Chicago Hospitals & Clinics (1985), 137 Ill. App. 3d 485, 489, 484 N.E.2d 1100, 1104), no such showing has been made here.

The essential elements of a qualified or conditional privilege are: “(1) good faith by the defendant, (2) an interest or duty to be upheld, (3) a statement limited in scope to that purpose, (4) a proper occasion, and (5) publication in a proper manner and to proper parties only.” (Mittelman v. Witous (1989), 135 Ill. 2d 220, 236-37, 552 N.E.2d 973, 981.) While defendants may ultimately be able to establish that these factors were present, their presence is not evident from the face of the complaint or the termination letter sent to Dr. Beasley. Particularly uncertain is item five. At this stage of the proceedings, we do not know the status of some of the recipients of the letter or why they were given copies of the letter. From the complaint it is not clear, for example, who Anthony Del Vecchio or Dr. Beguelin are and how they figure into this dispute. Under these circumstances, it cannot be said that there was “publication in a proper manner and to proper parties only.” Counts III through VI of the complaint were therefore not subject to dismissal on the grounds that the termination letter was protected by a qualified privilege.

As an alternative basis for dismissal of counts III and V, defendants argued that Beasley’s allegations of fault were insufficient. This argument must also fail. In counts III and V, Beasley seeks to hold defendants liable based on their negligence. If defendants were protected by a qualified privilege, this would not be enough. Beasley would have to plead and prove actual malice. (Mittelman v. Witous (1989), 135 Ill. 2d 220, 237-38, 552 N.E.2d 973, 981.) As we have just discussed, however, it is not apparent fom the pleadings that a qualified privilege applies here. Given this, and given that Beasley is not seeking punitive damages in counts III and V, a claim that the defamation was made negligently will support his cause of action. See Owens v. CBS, Inc. (1988), 173 Ill. App. 3d 977, 994-96, 527 N.E.2d 1296, 1308-09.

As grounds for his negligence claim, Beasley alleges in count V that defendants

“failed to make a reasonable inquiry into the truth or falsity of the matters set forth in the termination letter *** in one or more of the following ways:
a. failed to conduct an investigation of the matter which included an interview with the plaintiff, Beasley;
b. failed to contact the alleged complaining persons to interview the facts of the matter with them, and specifically, failed to contact persons involved in the Wangler incident, and also failed to contact alleged other complaining patients;
c. failed to review Dr. Beasley’s conduct with physicians licensed to practice medicine to determine whether his performance met with accepted standards of medical care in the community; and
d. failed to determine through investigation with either Dr. Beasley, Dr. Beguelin or A. Del Vecchio whether Dr. Beguelin and Anthony Del Vecchio had a right to receive the information published in [the letter of termination].”

Count III contains these same basic allegations. There are some differences in the wording, but they are insignificant. In each case, and under the circumstances present here, we believe that these allegations are sufficient to state a claim for defamation based on negligence. Defendants have directed us to no authority which supports a contrary conclusion.

No other basis has been advanced which would support the circuit court’s dismissal of counts III and V, and we therefore conclude that those counts should not have been dismissed. With respect to counts IV and VI, however, we believe that dismissal was proper. The problem with those counts lies in their request for an award of punitive damages. The rule which has been followed in this State is that when punitive damages are sought, actual malice must be established. (Erickson v. Aetna Life & Casualty Co. (1984), 127 Ill. App. 3d 753, 764, 469 N.E.2d 679, 687.) In counts IV and VI, however, Beasley does not purport to allege actual malice. He characterizes his claims as seeking to impose liability based on defendants’ willful and wanton misconduct. These concepts are not the same.

Willful and wanton misconduct essentially constitutes a tort of aggravated negligence. It is present where injury is caused “intentionally or under circumstances exhibiting a reckless disregard for the safety of others.” (Hough v. Mooningham (1986), 139 Ill. App. 3d 1018, 1021, 487 N.E.2d 1281, 1284.) Actual malice exists where a statement is made “with knowledge of its falsity or in reckless disregard of whether it [is] false or true.” (Colson v. Stieg (1982), 89 Ill. 2d 205, 214, 433 N.E.2d 246, 250.) Although both of these definitions include the term “reckless disregard,” “reckless disregard” in the context of actual malice means “proceeding to publish the defamatory matter despite a high degree of awareness of probable falsity or entertaining serious doubts as to its truth.” (Mittelman v. Witous (1989), 135 Ill. 2d 220, 237-38, 552 N.E.2d 973, 981.) In the case of willful and wanton misconduct, this higher threshold is not required. Conduct may be willful and wanton where, after knowledge of impending danger, a person simply fails to exercise ordinary care to prevent that danger or fails to discover the danger through recklessness or carelessness when it could have been discovered by ordinary care. Koh v. Village Greens (1987), 158 Ill. App. 3d 226, 231, 511 N.E.2d 854, 857.

In Owens v. CBS, Inc. (1988), 173 Ill. App. 3d 977, 996, 527 N.E.2d 1296, 1309, we recognized that a majority of the members of the United States Supreme Court now seem to agree that the Federal Constitution does not prohibit a private individual from recovering punitive and presumed damages upon a showing of less than actual malice where the statements in question do not involve matters of public concern (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985), 472 U.S. 749, 86 L. Ed. 2d 593, 105 S. Ct. 2939). Our supreme court has yet to decide whether, as a matter of State law, this lower threshold for recovery of punitive damages will be permitted. Assuming for the sake of argument, however, that our supreme court endorsed this lower threshold, and assuming further that the court would permit recovery of punitive damages where the publication of defamatory matter was made willfully and wantonly, but not with actual malice, this would still be of no aid to Beasley here. The reason is that counts IV and VI do not sufficiently allege that defendants’ actions were willful or wanton.

As we have indicated, an action for willful and wanton misconduct requires a showing that injury was caused “intentionally or under circumstances exhibiting a reckless disregard for the safety of others.” (Hough v. Mooningham (1986), 139 Ill. App. 3d 1018, 1021, 487 N.E.2d 1281, 1284.) Although Beasley does make a conclusory allegation in counts IV and VI that defendants acted with “conscious disregard of the circumstances,” the specific factual averments he sets forth to support that claim are virtually identical to those in counts III and V, which allege mere negligence based on defendants’ failure to make a reasonable inquiry into the truth or falsity of the matters set forth in the termination letter. Absent any further allegations of specific facts which would show that defendants did act willfully and wantonly, and were not merely negligent, counts IV and VI were therefore properly dismissed.

We likewise hold proper the dismissal of counts VII and VIII. Unlike the other defamation counts, counts VII and VIII assume the existence of a qualified privilege. They allege, however, that even if the termination letter were privileged, defendants should nevertheless be held liable because they acted with actual malice. This claim is based on the rule that where a qualified privilege exists, actual malice must be pled and proved to overcome the privilege. (Mittelman v. Witous (1989), 135 Ill. 2d 220, 237, 552 N.E.2d 973, 981.) The problem, as with Beasley’s willful and wanton counts, is that no specific facts have been alleged which would support a finding of actual malice.

Beasley does aver that the defamatory statements in question were made with “malice,” but a bare assertion of malice is insufficient. (Beauvoir v. Rush-Presbyterian-St. Luke’s Medical Center (1985), 137 Ill. App. 3d 294, 300, 484 N.E.2d 841, 844.) As with the willful and wanton counts, the only specific facts alleged by Beasley to substantiate fault by defendants were essentially the same as those set forth in counts III and V, his negligence counts, which claimed that defendants had not made an adequate investigation. Allegations of failure to make a proper investigation are not sufficient to state a claim for malice. 137 Ill. App. 3d at 300, 484 N.E.2d at 844.

For the foregoing reasons, we affirm the judgment of the circuit court insofar as it dismissed counts I, II, IV, VI, VII and VIII of plaintiffs’ fifth amended complaint. We reverse that judgment insofar as it dismissed counts III and V, and we remand this cause for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

WELCH and GOLDENHERSH, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LYLE K. COLCLASURE, Defendant-Appellant.
    Fifth District
    No. 5—89—0263
    Opinion filed July 27, 1990.

      Clyde L. Kuehn, of Kuehn, Rhein & Trentman, of Belleville, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Lyle Colclasure, was convicted after a jury trial of first-degree murder and sentenced by the circuit court of St. Clair County to 26 years’ imprisonment in connection with the shooting death of Penny DeLong on October 30, 1988. Defendant appeals both his conviction and sentence. We affirm.

On the day of the shooting, defendant and the victim, Penny DeLong, defendant’s then live-in girlfriend, were to get together with some of her friends before leaving town. Defendant, however, had to work longer than expected. After he got off work, defendant met Penny at a nearby tavern where she had been waiting for several hours. Penny had been drinking and was upset with defendant for being so late. The two argued and then stayed to drink for awhile before returning to the trailer in which they were living. Once back at the trailer, the two began quarreling again. Anger turned to rage precipitating a rather violent fight. At one point in the scuffle, defendant picked up his gun, a 30/30 rifle, from the comer of the bedroom in order to scare Penny. Instead of retreating, according to defendant, Penny grabbed for the gun. While pushing and shoving each other with the gun in between, Penny grabbed the gun or defendant’s arm at the same time that defendant pushed her down on the bed. As she hit the bed, the gun fired, shooting off a portion of the top of her head and grazing the outside of her left index finger. The autopsy revealed the gunshot was fired a distance of some 6 to 12 inches from the victim’s face with the bullet entering near her right eye at a slight right to left and front to back direction. Once defendant realized Penny was dead, defendant took the gun to Penny’s car in order to flee. After putting the gun inside, he stopped and called his mother. She advised him to call the police. Defendant agreed and waited inside the trailer until the police arrived. Once the officers identified themselves, defendant kicked open one of the trailer doors and exited. He told the police “she is in there dead” and that he had shot her with a 30/30 carbine. Consistent with defendant’s version of the incident, the jury was instructed on both involuntary manslaughter and first-degree murder. The jury chose to believe the State’s version, however, that defendant deliberately came up to Penny , while she was lying on the bed and shot her between the eyes and, accordingly, found him guilty of first-degree murder.

Defendant first argues on appeal he was denied his sixth amendment right to a jury trial by being prohibited from exercising 10 peremptory challenges as afforded by statute (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4(e)) in contrast to the seven granted by Supreme Court Rule 434(d) (107 Ill. 2d R. 434(d)). Defendant believes the number of peremptory challenges is a substantive right at the very heart of the adversary process guaranteeing a fair trial by jury upon which Rule 434(d) infringed to his detriment. Defendant specifically points out that in his effort to select a fair and impartial jury, he exercised all seven peremptory challenges and would have excluded two other unfavorable jurors if he had been given 10.

Article II, section 1, of the Illinois Constitution of 1970 separates the government’s power into three coequal branches with article VI, section 1, vesting judicial power in the courts. Judicial power embraces everything necessary to the full performance of judicial functions, including the adjudication and application of law, the administration of the courts and the imposition of criminal sentences. (People v. Felella (1989), 131 Ill. 2d 525, 538, 546 N.E.2d 492, 497; People v. Jackson (1977), 69 Ill. 2d 252, 256-57, 371 N.E.2d 602, 604.) Because no branch may exercise the powers belonging to another (see Felella, 131 Ill. 2d at 538, 546 N.E.2d at 497), if the power is judicial in character, it necessarily follows that the legislature is expressly prohibited from exercising it. (See People v. Cox (1980), 82 Ill. 2d 268, 274, 412 N.E.2d 541, 544.) While the legislature is vested with the power to enact laws, it cannot constitutionally enact laws that unduly infringe upon the powers of the court. (See Felella, 131 Ill. 2d at 538, 546 N.E.2d at 497.) Admittedly, the legislature may enact laws complementing the authority of the judiciary, but here, section 115 — 4(e) of the Code of Criminal Procedure of 1963 directly conflicts with Supreme Court Rule 434(d). In such instances, the rule prevails. (See Felella, 131 Ill. 2d at 538, 546 N.E.2d at 498; People v. Walker (1988), 119 Ill. 2d 465, 475, 519 N.E.2d 890, 893; Cox, 82 Ill. 2d at 274, 412 N.E.2d at 545.) Were it otherwise, the judiciary would be nothing more than an extension of the legislature. Walker, 119 Ill. 2d at 475, 519 N.E.2d at 893.

The issue of how many peremptory challenges are allowed in a given type of case pertains to the administration of the courts. It is a matter of trial detail, and as a trial detail, best left to the courts to regulate. Clearly, the number of peremptory challenges is limited as a matter of court procedure. It is not a substantive right of the defendant. (See People v. Whitlock (1988), 174 Ill. App. 3d 749, 769, 528 N.E.2d 1371, 1382.) The Illinois Constitution does not state the number of constitutionally required peremptory challenges. Rather, the basic constitutional right is trial by an impartial jury. (See Jackson, 69 Ill. 2d at 260, 371 N.E.2d at 606.) Defendant is not being denied that right to a fair and impartial jury merely because the number of peremptory challenges is limited by supreme court rule; he still is granted unlimited challenges for cause against prospective jurors. Consequently, as the number of peremptory challenges is a matter of trial detail, it is controlled by the rules established by the supreme court, not by the legislature. (See Whitlock, 174 Ill. App. 3d at 769, 528 N.E.2d at 1382; see also Jackson, 69 Ill. 2d at 260, 371 N.E.2d at 606.) Under the separation of powers, the trial court properly denied defendant’s motion requesting 10 peremptory challenges.

Defendant next argues the verdict is against the manifest weight of the evidence because the State did not prove beyond a reasonable doubt that he intended to kill or do great bodily harm to Penny when the offense was committed.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (E.g., People v. Phillips (1989), 127 Ill. 2d 499, 509, 538 N.E.2d 500, 503; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276; People v. Carlson (1980), 79 Ill. 2d 564, 583, 404 N.E.2d 233, 241.) As a court of review, it is not our function to retry a defendant. Rather, the 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. (E.g., People v. Eyler (1989), 133 Ill. 2d 173, 191, 549 N.E.2d 268, 276; Phillips, 127 Ill. 2d at 509-10, 538 N.E.2d at 503; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) Resolution of guilt or innocence, credibility of witnesses and conflicts in evidence lies exclusively within the province of the jury. E.g., Eyler, 133 Ill. 2d at 191, 549 N.E.2d at 276; Whitlock, 174 Ill. App. 3d at 763, 528 N.E.2d at 1379; People v. Wilkins (1976), 36 Ill. App. 3d 761, 765-66, 344 N.E.2d 724, 728.

To prove the crime of murder, it is not necessary to show that defendant possessed a specific intent to kill- or do great bodily harm or knew with certainty that his acts would achieve such results. It is sufficient to show that he voluntarily and willfully committed an act, the natural tendency of which was to destroy another’s life. (E.g., People v. Bartall (1983), 98 Ill. 2d 294, 307, 456 N.E.2d 59, 65; People v. Whitt (1986), 140 Ill. App. 3d 42, 50, 487 N.E.2d 1246, 1251.) Intent to kill or cause great bodily harm is not commonly proved by direct evidence. Rather, intent is inferred from the character of the defendant’s acts as well as the circumstances surrounding the commission of the offense. (People v. Terrell (1989), 132 Ill. 2d 178, 204, 547 N.E.2d 145, 155-56; Whitt, 140 Ill. App. 3d at 50, 487 N.E.2d at 1251.) Generally, when a defendant intentionally uses a deadly weapon upon his victim, it may properly be inferred he intended to cause the death of that victim. (Terrell, 132 Ill. 2d at 204, 547 N.E.2d at 156; Bartall, 98 Ill. 2d at 307, 456 N.E.2d at 65.) Ultimately, whether defendant is guilty of murder because his act created a strong probability of death or great bodily harm or whether he is guilty of involuntary manslaughter because his acts created a substantial and unjustifiable risk of such result is a question for the trier of fact. (See Bartall, 98 Ill. 2d at 307, 456 N.E.2d at 65; Carlson, 79 Ill. 2d at 582, 404 N.E.2d at 241.) Here, the jury was instructed on both crimes and found defendant guilty of murder. We cannot say the evidence does not support the jury’s verdict.

Defendant admitted to picking up his gun to scare Penny; he also admitting to cocking it to scare her with the noise. He further testified he had his hand on the trigger when the gun discharged. The evidence revealed that in order for the gun to fire, there would have had to been a finger on the trigger in order to move the trigger block out of the way. Defendant further told the police when they arrived he had shot the victim. Defendant contends, however, the shooting was accidental. Yet, he made no statement to the police pertaining to Penny’s struggling with him causing the gun to discharge and, in fact, initially stated she was lying in bed when the gun went off. In addition, a live rifle shell was found on the floor of the bedroom next to the victim’s bed. The gun was found in her car. Although there were many unidentifiable smudges, none of Penny’s fingerprints appeared on the gun. The evidence also revealed defendant apparently cocked the rifle after it discharged as a live shell was found in the chamber. A spent shell was found in defendant’s pocket. We further note the injury to the victim’s finger was consistent with her shielding her face from being shot at close range. Defendant’s use and cocking of the gun were more than sufficient evidence to demonstrate he intended to kill Penny or do her great bodily harm. We see no reason to disturb the jury’s verdict in this instance.

Defendant next contends the court erred in refusing to allow him to introduce evidence of his reputation for truth and veracity in the community. Defendant admits one’s reputation for truth and veracity generally is not a character trait relevant to any issue in the offense of murder, but defendant asserts here such evidence was relevant as the main issue was his credibility and truthfulness.

Evidence of a defendant’s reputation for truth and veracity is admissible under two circumstances: When it relates to some issue involved in the crime charged (see People v. Griffith (1978), 56 Ill. App. 3d 747, 756, 372 N.E.2d 404, 411), or when the defendant’s reputation has first been attacked as being bad (see People v. George (1978), 67 Ill. App. 3d 102, 108, 384 N.E.2d 377, 381). It is not admissible merely because defendant chooses to testify at trial or his testimony is contradicted by others. (See George, 67 Ill. App. 3d at 108, 384 N.E.2d at 381.) Only after the defendant’s credibility is placed in issue is the introduction of supporting reputation evidence warranted. (See People v. Doll (1984), 126 Ill. App. 3d 495, 501, 467 N.E.2d 335, 340; see also Griffith, 56 Ill. App. 3d at 756, 372 N.E.2d at 411.) Here, defendant’s veracity had not been first attacked. The trial court’s ruling on the State’s motion in limine excluding testimony regarding defendant’s reputation for truth and veracity therefore was not erroneous. (See George, 67 Ill. App. 3d at 108, 384 N.E.2d at 381-82.) Defendant counters his credibility was placed in issue, however, after being cross-examined concerning the differences in his testimony at trial and earlier statements made to the police. Whether or not such inconsistencies called into question defendant’s general reputation for truth and veracity, defendant was given an opportunity to rehabilitate his testimony. More importantly, he chose not to raise the issue of presenting reputation evidence again. We find no error in the trial court’s decision in this matter.

Defendant’s final argument on appeal concerns his sentence. Defendant believes his sentence should be reduced because the trial court improperly considered Penny’s death as a factor in aggravation when her death was an element of first-degree murder. Defendant further points out he has no prior criminal history, had been gainfully employed for a number of years prior to this incident, has good potential for rehabilitation and is unlikely to commit such an offense in the future.

In general, sentences are to be determined according to the seriousness of the offense while giving adequate consideration to relevant mitigating circumstances, including the rehabilitative potential of the defendant. (See People v. Sanchez (1986), 115 Ill. 2d 238, 274, 503 N.E.2d 277, 291; People v. La Pointe (1982), 88 Ill. 2d 482, 493, 431 N.E.2d 344, 349; Carlson, 79 Ill. 2d at 587, 404 N.E.2d at 243.) A reasoned judgment as to the proper penalty to be imposed therefore must be based upon the particular circumstances of each individual case. (People v. Saldivar (1986), 113 Ill. 2d 256, 268, 497 N.E.2d 1138, 1143.) Such a judgment depends upon many relevant factors, including the defendant’s demeanor, habits, age, mentality, credibility, general moral character, social environment, as well as the nature and circumstances of the offense, including the nature and extent of each element of the offense as committed by that defendant. (Saldivar, 113 Ill. 2d at 268-69, 497 N.E.2d at 1143.) A sentence based on improper factors, such as death as an aggravating factor when implicit in the offense, however, cannot be affirmed unless we can determine from the record that the weight placed on such an improperly considered aggravating factor was so insignificant as to not lead to a greater sentence. (People v. Martin (1988), 119 Ill. 2d 453, 458, 519 N.E.2d 884, 886.) This does not mean that the trial court in fashioning the defendant’s sentence when faced with a murder conviction cannot consider the force employed and/or the physical manner in which that death was brought about. (See Saldivar, 113 Ill. 2d at 269-71, 497 N.E.2d at 1143-44.) This is just such a case. Here, the trial court explicitly recognized death was an element inherent in the offense. It did not, however, give Penny’s death undue influence, but rather directed its comments to the manner in which that death was inflicted. Specifically, the court noted defendant had the gun available within easy reach and that the gun was already loaded, ready to be picked up, cocked and fired at a moment’s notice. The court concluded that if people did not keep loaded guns around, maybe “this type of thing wouldn’t happen in family argument type situations, and there are all too many deaths of that nature.” Not every reference involving a factor implicit in an offense gives rise to reversible error. See People v. Barney (1982), 111 Ill. App. 3d 669, 679, 444 N.E.2d 518, 525; see also People v. Bennett (1987), 159 Ill. App. 3d 172, 185, 511 N.E.2d 1340, 1348.

The court heard argument on defendant’s behalf concerning all possible mitigating factors and further considered letters written on defendant’s behalf requesting that the minimum sentence be imposed. Defendant’s sentence of 26 years falls well within the range of 20 to 60 years for a conviction of first-degree murder. As has been repeatedly stated, the trial court’s sentencing determination is entitled to great weight, and absent an abuse of discretion, will not be overturned. (Felella, 131 Ill. 2d at 541, 546 N.E.2d at 499; La Pointe, 88 Ill. 2d at 492-93, 431 N.E.2d at 348-49; People v. Generally (1988), 170 Ill. App. 3d 668, 677, 525 N.E.2d 106, 111.) The manner in which the offense occurred here outweighed all of the mitigating factors to justify a sentence exceeding the statutory minimum. Under such circumstances, we cannot say the trial court abused its discretion in this instance. La Pointe, 88 Ill. 2d at 493, 431 N.E.2d at 349; Cox, 82 Ill. 2d at 279-80, 412 N.E.2d at 547. Cf. People v. Goodwin (1980), 83 Ill. App. 3d 203, 206-07, 403 N.E.2d 1051, 1054.

For the aforementioned reasons, we affirm the judgment of the circuit court of St. Clair County.

Affirmed.

WELCH and CHAPMAN, JJ., concur.