author: CHIEF JUSTICE GOLDENHERSH

text:
    (No. 53272.
    MICHAEL S. GROBSMITH et al., Appellees, v. WILLIAM KEMPINERS, Acting Director of Public Health, et al., Appellants.

      Opinion filed November 13, 1981.

    Rehearing denied January 29, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield (Paul J. Bargiel and Patricia Rosen, Assistant Attorneys General, of Chicago, of counsel), for appellants.
    Murphy, Timm, Lennon, Spesia & Ayers, of Joliet (E. Kent Ayers, Gerald R. Kinney, and Roger D. Rickmon, of counsel), for appellees.
   CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendants, William Kempiners, Acting Director of the Illinois Department of Public Health, William Boys, Director of the Illinois Department of Personnel, and Robert Davito, Director of the Illinois Department of Mental Health and Developmental Disabilities, “individually and as representatives for all Directors and Chairmen of the Departments, Boards and Commissions of the State of Illinois,” appeal from the judgment of the circuit court of Will County, holding unconstitutional section 8b.18 of the Personnel Code. (Ill. Rev. Stat. 1979, ch. 127, par. 63bl08b.l8; Rule 302(a), 73 Ill. 2d R. 302(a).) Section 8b.18 provides:

“Term appointments. Appointees for all positions not subject to paragraphs (1), (2), (3) and (6) of Section 4d [Ill. Rev. Stat. 1979, ch. 127, par. 63b104d] in or above merit compensation grade 12 or its equivalent shall be appointed for a term of 4 years. During the term of such appointments, Jurisdictions A, B and C shall apply to such positions. When a term expires, the Director or Chairman of the Department, Board or Commission in which the position is located, shall terminate the incumbent or renew the term for another 4 year term. Failure to renew the term is not grievable or appealable to the Civil Service Commission.
For the purpose of implementing the above Section, the Director of Personnel shall supply each such Director or Chairman with a list of employees selected randomly by social security numbers in his particular Department, Board or Commission who are in salary grades subject to this Section on February 1, 1980. Such list shall include 25% of all such employees in the Department, Board or Commission. Those employees shall only continue in state employment in those positions if an appointment is made pursuant to this Section by the Director or Chairman of that Department, Board or Commission.
The same process shall occur on February 1,1981, 1982 and 1983 with an additional 25% of the employees subject to this Section who are employed on the effective date of this amendatory Act of 1979 being submitted by the Director of Personnel for appointment each year.
New appointments to such positions after the effective date of this amendatory Act of 1979 shall be appointed pursuant to this Section.
The Director of Personnel may exempt specific positions in agencies receiving federal funds from the operation of this Section if he finds and reports to the Speaker of the House and the President of the Senate, after good faith negotiations, that such exemption is necessary to maintain the availability of federal funds.
All positions, the duties and responsibilities of which are wholly professional but do not include policy-making or major administrative responsibilities and those positions which have either salaries at negotiated rates or salaries at prevailing rates shall be exempt from the provisions of this Section.”

Section 2 of Public Act 81—1002, in which section 8b.18 was enacted, provides:

“Section 8b.18 of said Act is repealed on January 1, 1984.”

It is alleged in plaintiffs’ complaint for declaratory judgment and injunction that plaintiffs are civil service employees of the State of Illinois who have been certified by the Director of the Department of Personnel and appointed and employed pursuant to the Personnel Code (Ill. Rev. Stat. 1977, ch. 127, par. 63b101 et seq.) and the rules adopted pursuant thereto; that plaintiffs were in or above merit compensation grade 12 or its equivalent as of December 31, 1979; that plaintiffs have been notified by the Director of Personnel that a lottery would be conducted on January 31, 1980, and that their Social Security numbers would be submitted to the lottery; that if selected the directors and chairmen of each department, board and commission would be notified by the defendant Boys that on February 1, 1980, plaintiffs were subject to termination or a four-year term appointment; that plaintiffs have protested the official notification and have requested reconsideration thereof; that defendant Boys has required documentation in support of the request for reconsideration to which these plaintiffs are unable to respond in that the documentation required is “unclear, vague and lacking in specifics and detail”; that the application by the defendants of the provisions of the statute will interfere with, destroy and impair legal, equitable and contractual rights of the plaintiffs; that said act is unconstitutional and without force of law for a number of reasons alleged in said complaint.

The parties stipulated that defendants waived their right to file an answer to the complaint and that there were no material allegations of fact to be decided by the. circuit court.

The circuit court found that the cause could be maintained as a class action and defined the class. It further found that plaintiffs were vested with a statutorily created property right which could not be terminated in the manner provided in section 8b.18 and that the statute deprived them of the property right without due process of law. The court entered judgment holding the statute unconstitutional and enjoining the defendants “from exercising any of the powers, rights and/or duties respecting the enforcement of Public Act 81—1002 against said named plaintiffs and the class represented by them.” Defendants do not question the correctness of the order with respect to the class action.

Defendants contend that “the public interest mandates reform of the Civil Service law”; that the statute “accomplishes the objective of making state government more efficient and more accountable to the public while continuing to protect the rights of the employees”; that the State’s interest outweighs the private interests and that the provision for term appointments affords plaintiffs equal protection of the law and does not constitute special legislation. It is plaintiffs’ contention that section 8b.18 contravenes the merit and fitness provisions of the Personnel Code, that it violates their rights to due process and equal protection and that it retrospectively and adversely affects their vested property rights.

Defendants have devoted a substantial portion of their brief to the argument that “the public interest mandates reform of the Civil Service law.” Plaintiffs’ response, simply stated, is that under this statute plaintiffs’ future “will be based upon their political ties and political cooperation. Merit principles are effectively removed.” They argue that because it confers upon directors and chairmen the power to effect dismissals based upon “wholly subjective criteria” section 8b.18 is invalid.

The parties have cited and argued the holdings in Branti v. Finkel (1980), 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287, Elrod v. Burns (1976), 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673, Perry v. Sindermann (1972), 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694, Board of Regents v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701, and Powell v. Jones (1973), 56 Ill. 2d 70. Those cases may be relevant to issues which might arise upon failure to appoint members of plaintiffs’ class to new terms. The issue presented here, however, is whether the General Assembly has the power to subject positions in grade 12 and above to term appointments and render applicable to those positions the provisions of Jurisdictions A, B and C during such term. On that question, the cited cases are not in point.

It is well established that civil service status is not a vested right, that having been created by the General Assembly it is wholly within its control and subject to change by legislative action. (Higginbotham v. City of Baton Rouge (1939), 306 U.S. 535, 83 L. Ed. 968, 59 S. Ct. 705; Jordan v. Metropolitan Sanitary District (1958), 15 Ill. 2d 369; Groves v. Board of Education (1937), 367 Ill. 91; Dupont v. Kemper (M.D. La. 1980), 501 F. Supp. 1081.) We find no constitutional impediment to the power of the General Assembly to change the duration of the term of the appointments or the method of fixing the time when presently existing terms would terminate.

Plaintiffs contend next that section 8b.18 is violative of equal protection for the reason that the classification of employees in merit compensation grade 12 and above as “policy-makers” has no rational basis. They argue that the classification is based solely upon salary earned by the employees and that under existing salary schedules 14 of 19 separate salary grades could be affected. The record shows that under the merit compensation salary schedule effective at the time this action was filed employees in grades as low as MC-6 could earn as much as some employees in grade 12. Citing Branti v. Finkel (1980), 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287, plaintiffs argue that the classification must be held to be irrational for the reason that the amount of money earned by an employee does not of itself make the employee a “policy-maker.” Defendants respond that it is clear from the rule promulgated by the Director of Personnel (Rule 2—800(2)) that the classification applies only to merit compensation grades 12 and above, and that these are positions that invoke “policy-making” or “major administrative responsibilities” as defined by Department of Personnel Rules 2—800(7) and 2—800(8). They argue further that an employee, despite the fact that he is within the designated salary range (Rule 2—850), may request an administrative hearing on the question whether his position is properly classified as “policy-making” or one with “major administrative responsibilities” (Rule 2—850) and that the administrative decision is subject to review under the Administrative Review Act.

Defendants assert that the purpose of the legislation is to increase the accountability of State employees at the higher levels and that this will be effected by vesting in the director or chairman of each particular agency the discretion to terminate or appoint those individuals.

We find apposite here the statement in Garcia v. Tully (1978), 72 Ill. 2d 1:

“Whether the course chosen by the General Assembly to achieve a desired result is either wise or the best means available is not a proper subject of judicial inquiry. (Schreiber v. County of Cook (1944), 388 Ill. 297; Stewart v. Brady (1921), 300 Ill. 425.) If there is a reasonable basis for the classification and it bears a reasonable and proper relation to the purposes of the Act, the classification is not unreasonable. Williams v. City of Chicago (1977), 66 Ill. 2d 423; People ex rel. County of DuPage v. Smith (1961), 21 Ill. 2d 572; Crews v. Lundquist (1935), 361 Ill. 193.” 72 Ill. 2d 1, 10-11.

Plaintiffs next contend that section 8b.18 violates the prohibition against retrospective application of legislation because it repeals section 11 of the Personnel Code (Ill. Rev. Stat. 1979, ch. 127, par. 63b111), which provides for written charges and a hearing before an employee who holds an appointment made on the basis of merit and fitness (Jurisdiction B) may be removed, discharged or demoted. This argument rests on plaintiffs’ premise that the right to be dismissed only upon a showing of cause is a vested right and suffers the same defect as plaintiffs’ due process argument. No constitutional provision, State or Federal, supports the contention that the benefits conferred by reason of plaintiffs’ statutorily defined job status are vested property rights that may not be altered or abolished by the General Assembly.

By what we have said here in holding section 8b. 18 valid, we do not imply that it may not be rendered invalid in its application, and that failure to receive appointment to a new term may not give rise to remedies predicated upon the many decisions of the Supreme Court and of this court holding that civil service status may give rise to rights which may be violated by termination or discharge. We hold only that on its face the statute is not violative of due process or equal protection under either the Federal or State constitutions.

For the reasons stated the judgment of the circuit court of Will County is reversed.

Judgment reversed.


source: Caselaw Access Project

author: JUSTICE RYAN

license: Public Domain

text:
    (Nos. 53842, 53846, 53894 cons.
    KNOX COLLEGE, Appellee, v. CELOTEX CORPORATION et al., Appellants.

      Opinion filed November 13, 1981.

    Rehearing denied January 29, 1982.

      Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, David B. McAfee, and Robert H. Mittelman, of counsel), for appellant Celotex Corp.
    Charles G. Roth and Phillip B. Lenzini, of Peoria (Kavanagh, Scully, Sudow, White & Frederick, of counsel), for appellant Perkins & Will.
    Davis & Morgan, of Peoria (Clifford E. Schneider and Brian W. Ruddell, of counsel), for appellants C. Iber & Sons, Inc., and Travelers Indemnity Co.
    George V. Bobrinskoy, Jr., and Michele Odorizzi, of Mayer, Brown & Platt, of Chicago, and Douglas R. Mustain, of West, Neagle & Williamson, of Galesburg, for appellee.
   JUSTICE RYAN

delivered the opinion of the court:

Knox College, plaintiff, filed suit in the circuit court of Knox County against the defendants, Celotex Corporation (supplier of materials), Perkins and Will (architects), C. Iber and Sons (general contractor), and the Travelers Indemnity Company (surety on the performance bond of Iber). Motions were filed by all defendants to dismiss the various counts of the second amended complaint. The court allowed the motion as to Celotex on the ground that the allegations against that defendant reflected that the statute of limitations had run. The motions filed by the other defendants contended that the contents of those counts violated the provisions of the Civil Practice Act as to pleading. The court allowed the motions to dismiss, and the plaintiff elected to stand on its pleadings as to each count and did not ask leave or attempt to amend. On appeal, the appellate court reversed the dismissal as to all defendants. As to Celotex, the appellate court held that according to its construction of the discovery rule, the statute of limitations had not run on the plaintiff’s cause of action against that defendant. As to the other defendants, the appellate court held that by construing the provisions of the Civil Practice Act liberally, the counts against the other defendants were not defective and should not have been dismissed. (85 Ill. App. 3d 714.) We granted leave to appeal.

In 1964, Knox College entered into a contract with the architectural firm of Perkins and Will to design and supervise the construction of a math-science building on the college’s Galesburg campus. The general contractor for this project was C. Iber and Sons, which provided a performance bond with the Travelers Indemnity Company as surety. C. Iber and Sons subsequently subcontracted the roofing work to White’s Roofing and Insulation, Inc. Perkins and Will’s original roofing specifications called for a built-up, bituminous membrane roofing of 4-ply, 20-year bondable organic felt and bitumen system. The specifications were later changed, with the knowledge of Knox College, to 2-ply roofing. It was argued that this change was authorized as a result of representations by the Celotex Corporation that the 2-ply system was the functional equivalent of the 4-ply system. Pursuant to the specifications change, White installed Celotex’s 2-ply roofing in September 1970.

Soon after the roof was installed, it began to leak. From September 1970 until October 1973, White repaired the roof at its own expense, under the terms of its 5-year guarantee. In October of 1973, at White’s request, the college began to share the expenses of roof repair with White. The roof continued to require occasional care. As of May 1976 the college had expended approximately $13,000 for roofing repairs.

In July .1976, the college was informed that the entire roofing membrane and insulation would have to be replaced. However, it was not until November of that year that the college was informed by an independent roofing consultant that the roofing problems might have been caused by deficiencies in the Celotex 2-ply roofing system. In the fall of 1977 and the spring of 1978, the entire roof was replaced at a cost to Knox College of $135,000. On June 9, 1978, Knox College filed suit against the defendants for $175,000 in compensatory damages, plus punitive damages.

In the second amended complaint counts I through III alleged tortious misrepresentation and fraud on the part of Celotex in the promotion of the 2-ply roofing system and in the sale of “Celo-therm” insulation to plaintiff. Specifically, it was alleged that Celotex knew that its product was not suitable for the climate in locales similar to that of Knox College. Despite this knowledge, Celotex did not inform Knox of the situation or withdraw its product from the market. Count IV alleged that Perkins and Will, the architectural firm, breached certain duties it owed, which we will discuss in greater detail later. Counts V and VI alleged, respectively, breach of contract and breach of written guarantee by C. Iber and Sons. Finally, in counts VII and VIII, the plaintiff sought recovery against Traveler’s Indemnity as surety on C. Iber’s performance bond. The circuit court of Knox County, in granting the defendants’ motions to dismiss the second amended complaint, found that counts I through III (against Celotex) were barred by the statute of limitations, count IV (against Perkins and Will) was to be stricken “as sounding both in tort and in contract, and possibly indemnity, the cause of action not being set out as required by Chapter 110, Section 33(2), Illinois Revised Statutes, 1977” (section 33(2) of the Civil Practice Act), and counts V through VIII were “insufficient within themselves to sustain a cause of action.”

The appellate court, in reversing the decision as to counts I through III, concluded that Knox could not have been expected to know of the right to sue until November of 1976, when an independent expert informed Knox that the failure was or might have been caused by the deficiencies in the 2-ply roofing system. The appellate court further held that the statute of limitations on the cause of action was 5 years and that the complaint was timely filed. The court continued that count IV was not defective because the allegations were sufficiently definite to inform the defendant of the claim which he had to meet. Likewise, counts V through VIII were not defective because they reasonably apprised the parties of the claim.

These same issues are now raised in this court. We will first consider counts I through III against Celotex, which involve solely the question of the statute of limitations. The limitations period applicable to fraud and tortious misrepresentation alleged in counts I through III is 5 years, as provided in section 15 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 16).

The discovery rule relating to the statute of limitations has been applied across a broad spectrum of litigation to alleviate what has been viewed as harsh results resulting from the literal application of the statute. The effect of the discovery rule is to postpone the starting of the period of limitations until the injured party knows or should have known of his injury. (See Scott, For Whom The Time Tolls—Time of Discovery and the Statute of Limitations, 64 Ill. B.J. 326 (1976); Notes and Comments, The Evolution of Illinois Tort Statutes of Limitation: Where Are We Going And Why?, 53 Chi.-Kent L. Rev. 673 (1977).) The difficulty in applying the discovery rule has been in giving meaning to the term commonly used stating the rule, “knows or should have known of his injury.” If this phrase is construed to mean knows of one’s physical injury, the period commences to run at an earlier time than if it is construed to mean knows that one has a cause of action against a particular person. There has been much uncertainty in this area. We need not detail the history of the development of the discovery rule in this State or discuss the various cases that have given different interpretations to the meaning of the word “injury” used in stating the rule. This court has recently considered the discovery rule in depth in two cases, and has adopted a construction of the rule which can be termed neither narrow nor expansive. That is, we have held that the event which triggers the running of the statutory period is not the first knowledge the injured person has of his injury, and, at the other extreme, we have also held that it is not the acquisition of knowledge that one has a cause of action against another for an injury he has suffered. Rather, we have held in Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, and Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, that the statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. In those cases it was made clear that the term “wrongfully caused” does not mean that the plaintiff must have knowledge of the defendant’s negligent conduct before the statute is triggered. In Nolan we stated:

“We wish to emphasize that the rule we announce is not the same as a rule which states that a cause of action accrues when a person knows or should know of both the injury and the defendants’ negligent conduct. Not only is such a standard beyond the comprehension of the ordinary lay person to recognize, but it assumes a conclusion which must properly await legal determination. (United States v. Kubrick (1979), 444 U.S. Ill, 124, 62 L. Ed. 2d 259, 271, 100 S. Ct. 352, 360-61.) Moreover, if knowledge of negligent conduct were the standard, a party could wait to bring an action far beyond a reasonable time when sufficient notice has been received of a possible invasion of one’s legally protected interests.” (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 170-71.)

Also, it was made clear in those decisions that a plaintiff need not have knowledge that an actionable wrong was committed before the period begins to run. In Nolan we stated:

“We hold, therefore, that when a party knows or reasonably should know both that an injury has occurred and that it was wrongfully caused, the statute begins to run and the party is under an obligation to inquire further to determine whether an actionable wrong was committed.” (Emphasis added.) (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171.)

Also, in Witherell we stated the rule and obligation of the person to make diligent inquiry in this matter:

“The statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. At that point the burden is upon the injured person to inquire further as to the existence of a cause of action.” (Emphasis added.) Witherell v. Weimer (1981), 85 Ill. 2d 146, 156.

The holdings in these cases are in accord with United States v. Kubrick (1979), 444 U.S. Ill, 62 L. Ed. 2d 259, 100 S. Ct. 352, which held that the accrual of a cause of action does not await the awareness by a plaintiff that an injury was negligently inflicted, nor does it await the acquisition of knowledge of facts which would alert a reasonable person to suspect that a legal duty to him had been breached. Under the facts of that case, in which the plaintiff knew the cause of his injury, the court held, as this court did in Nolan and Witherell, that the plaintiff had the obligation to inquire whether a legal duty to him had been breached.

The term “wrongfully caused,” as we have used that term in stating the rule, must be viewed as a general or generic term, and not a term of art. This is apparent from the holdings of Nolan and Witherell that the use of the term does not connote knowledge of negligent conduct or knowledge of the existence of a cause of action.

At some point the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved. At that point, under the discovery rule, the running of the limitations period commences. As we held in Witherell and Nolan, this is usually a question of fact, and as we view the facts before us, it is a question of fact in this case.

It is true that Knox knew that the roof leaked almost as soon as it was completed. The trial court found this sufficient to alert Knox to the fact that something was wrong. We cannot say, as a matter of law, however, that that event started the running of the limitation period. Evidence may disclose that built-up roofs of this type often leak following installation due to some minor defects in the application of the material, which are usually easily corrected. It may be that the nature of the leak and the fact that the subcontractor undertook at once to remedy it were facts which would not cause a reasonable person to investigate further. However, if not the first leak, at some point along the line, Knox had sufficient information to put a reasonable person on inquiry as to the nature of the defect in the roof and whether a cause of action existed in favor of Knox. That point must be determined by the trier of fact, and it must determine whether that information was acquired more than 5 years prior to the time that Knox filed suit. Ill. Rev. Stat. 1977, ch. 83, par. 16.

As to count IV of the complaint, which charges the architectural firm of Perkins and Will with certain conduct, we find that the trial court correctly struck this count. In entering his order, the judge stated:

“Count IV as to Perkins and Will is stricken as sounding both in tort and in contract, and possibly indemnity, the cause of action not being set out as required by Chapter 110, Section 33(2), Illinois Revised Statutes 1977.”

Count IV of the complaint, in relevant part, alleges:

“COUNT IV
(Perkins & Will - Breach of Written Contract!
37. By virtue of entry into the written agreement with plaintiff more fully described in Paragraph 4 above, and attached to the Complaint as Exhibit ‘A,’ whereby Perkins & Will agreed to act as architect for the construction of Plaintiff’s Math-Science Center, Perkins & Will undertook to perform for Plaintiff the following duties:
A. ‘Design Development Phase
a) The Architect shall prepare from the approved schematic design studies, the design development documents consisting of plans, elevations and other drawings, and outline specifications, to fix and illustrate the size and character of the entire Project in its essentials as to kinds of materials, type of structure, mechanical and electrical systems and such other work as may be required.’
B. ‘Construction Documents Phase
a) The Architect shall prepare from the approved design development documents, working drawings and specifications setting forth in detail and prescribing the work to be done, and the materials, workmanship, finishes, and equipment required for the architectural, structural, mechanical, electrical, service-connected equipment, and site work
C. ‘Construction Phase — General Administration of Construction Contracts
# # # #
c) . . . [H]e will keep the Owner informed of the progress of the work, will endeavor to guard the Owner against defects and deficiencies in the work of Contractors
38. Further, by implication of law, Perkins & Will, as architect, undertook to perform for Plaintiff one or more of the following duties and obligations arising out of its written contract with Plaintiff:
(a) The duty to specify , only such materials and methods of construction as were fit for their intended purpose and use;
(b) The duty to conduct an investigation, consistent with the ordinary and reasonable skill usually exercised by persons in the profession of architecture, prior to specification of any materials or methods of construction;
(c) The continuing duty, subsequent to specification of particular materials or methods of construction, to ascertain, and report to the client, new information creating doubt with respect to the validity of specifications previously made;
(d) The duty thoroughly to investigate defects, problems or failures occurring in the project, and promptly to ascertain, and report to the client, their cause.
39. Perkins and Will breached one or more the duties which it owed to Plaintiff in the following respects:
(a) The Celotex two-ply Specification No. 220-INS was unfit for use as a roofing membrane in Western Illinois, for reasons set forth in Paragraph 16 of Count I above;
(b) In the period of time prior to September, 1970, Perkins & Will could have ascertained that coated felt specifications, particularly two-ply systems, would present substantial risk of premature failure if installed in Western Illinois;
(c) Despite Plaintiff’s prompt written notification to Perkins & Will of problems encountered in the roofing membrane as set forth in Paragraph 18 of Count I above, Perkins & Will failed thoroughly to investigate those conditions and report their cause to Plaintiff.
40. Plaintiff has been damaged as a result of the breaches of duty by Perkins & Will set forth above. Because of Perkins & Will’s wrongful specification of the Celotex two-ply system, Plaintiff has incurred the costs of repair, replacement, aggravation, inconvenience and loss of use set forth in Paragraphs 10 and 17 above. In so far as any portion of Plaintiff’s causes of action against Celotex might be held to be barred by the statute of limitations, Plaintiff has been damaged by Perkins & Will’s failure to discover and report to Plaintiff the causes of the leaks in the roofing membrane on Plaintiffs Math-Science Center.”

Paragraph 37 of count IV alleges the duties the architect owed Knox under the written contract, and paragraph 38 alleges duties that arose by implication of law. It is not clear whether the alleged breach of the implied duties is an attempt to allege a cause of action based on a breach of implied contract, or on negligent performance of those duties. It is true that all of the allegations concern duties that arose by virtue of the contract of employment between Perkins and Will and Knox. The appellate court found this sufficient to uphold this count of the complaint. However, the allegations of count IV involve at least two separate and distinct causes of action, one based on the written contract and the other for either tort or implied contract. Section 33(2) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 33(2)) provides:

“Each separate claim or cause of action upon which a separate recovery might be had shall be stated in a separate count or counterclaim, as the case may be and each count, counterclaim, defense or reply, shall be separately pleaded, designated and numbered, and each shall be divided into paragraphs numbered consecutively, each paragraph containing, as nearly as may be, a separate allegation.”

We agree with Knox that a contractual relationship may give rise to an action for breach of contract or an action in tort. However, when both actions are alleged in the same complaint, they should be set out in separate counts. Knox cites several appellate court cases which held that it is no error for a count to contain duplicitous pleading, that is, more than one cause of action alleged in a single count. (Bernesak v. Catholic Bishop (1980), 87 Ill. App. 3d 681; Iverson v. Iverson (1976), 38 Ill. App. 3d 308; Adams v. J. I. Case Co. (1970), 125 Ill. App. 2d 388; Savoie v. Town of Bourbonnais (1950), 339 Ill. App. 551.) There may be situations where such pleadings are appropriate and should not be stricken, especially in view of the section of the Civil Practice Act requiring that pleadings be liberally construed with a view to doing justice between the parties (Ill. Rev. Stat. 1977, ch. 110, par. 33(3)). However, in our case it is important to note that different limitation periods apply to the different causes of actions alleged, and the statute of limitations is an important and possibly controlling aspect of this case because of the delay in filing suit. Section 40 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 40) requires that answers shall contain explicit admissions or denials of the allegations of the complaint; and section 43 requires that affirmative defenses be plainly set out in the pleadings (Ill. Rev. Stat. 1977, ch. 110, pars. 40, 43). With multiple causes of action involving different limitation periods pleaded in the same count, the admonitions of sections 40 and 43 will be difficult to follow. Also, other trial difficulties, including the giving of instructions, will confront the court, which the trial judge could properly attempt to avoid by requiring plain, concise and unambiguous pleadings. There appears to be no reason why Knox should not have attempted to amend the complaint to conform to the court’s ruling. This is not a case in which the trial court dismissed the count and entered judgment without giving the plaintiff an opportunity to amend. The court did not find that it was impossible for the plaintiff to state a good cause of action against the defendant but only struck the count. The plaintiff elected to stand on the allegations of its complaint. Knox, in its brief, attempts to argue that any further attempt at amendment would have been futile, contending that “an infinite number of amendments” would not satisfy the judge. This argument is not persuasive. The defect could easily have been remedied by setting forth the allegations of count IV in two or more counts.

Although pleadings are to be liberally construed, and a defendant’s motion to dismiss admits all facts well pleaded, nonetheless, in considering a motion to dismiss, the pleadings are to be construed strictly against the pleader. (Carroll v. Caldwell (1957), 12 Ill. 2d 487, 493; Gagne v. Village of LaGrange (1976), 36 Ill. App. 3d 864.) The purpose of requiring that defects in pleadings be attacked by motion (Ill. Rev. Stat. 1977, ch. 110, par. 45) is to point out the defects in the pleadings so that the complainant will have an opportunity to cure them before trial (Hild v. Avland Development Co. (1977), 46 Ill. App. 3d 173, 177). The granting of the motion to strike or dismiss is within the sound discretion of the trial court. (Deasey v. City of Chicago (1952), 412 Ill. 151; Gagne v. Village of LaGrange (1976), 36 Ill. App. 3d 864.) We cannot say that the trial court, in this case, abused its discretion in striking count IV. It was Knox’s decision not to amend but to permit a judgment to be entered against it on this count.

Count IV is captioned “(Perkins & Will - Breach of Written Contract).” In one part of its brief Knox contends that this count is solely an action on a written contract and therefore would not contain multiple causes of action. Presumably, because of the longer limitation period applicable to actions on a written contract (Ill. Rev. Stat. 1977, ch. 83, par. 17), Knox has captioned this count, as well as the subsequent counts in the complaint, as actions on a written contract. However, in count IV Knox alleges certain duties that arise out of the written contract and alleges duties that arose by implication of law. The complaint then alleges that the duties owed to Knox were breached without alleging whether they were the contractual duties or the implied duties. There were further allegations that refer to conduct of this defendant long after the completion of the contract. If Knox intended these allegations to charge a breach of a written contract, we can only say that the allegations are ambiguous and would constitute problems in framing subsequent pleadings and at trial. As we stated above, it was within the trial court’s discretion to attempt to avoid these subsequent problems by striking the ambiguous pleading, especially, as noted above, since in ruling on such a motion the pleadings are to be construed strictly against the pleader.

Counts V and VI are against C. Iber and Sons, Inc., the general contractor for the project, and counts VII and VIII are against the Travelers Indemnity Company as surety on Iber’s performance bond. Count V against Iber alleges a cause of action based on the construction contract, and count VI alleges that under the contract Iber agreed to construct a roof that was guaranteed for 5 years, and plaintiff seeks to recover by virtue of the guarantee. Iber and Travelers filed motions to dismiss. The trial court, in granting the motions, stated that each count was insufficient to state a cause of action when the factually unsupported conclusions contained therein were disregarded. Here, also, Knox chose to stand on its pleadings, and the court thereafter entered judgment against it.

Knox argues that the allegations of these counts are sufficient to inform Iber and Travelers of the nature of the claims they are called upon to meet, relying upon section 42(2) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 42(2)), which states:

“No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.”

However, in the Historical and Practice Notes to that section in Smith-Hurd Annotated Statutes, it is stated:

“Subsection 2 must be construed with other sections of the Act and cannot be interpreted as making other sections inoperative. Section 31 of the Act requires ‘substantial averments of fact necessary to state any cause of action.’ Section 33 of the Act requires ‘a plain and concise statement of the pleader’s cause of action.’ Sections 33 and 43 of the Act require each cause of action or defense to be separately pleaded and designated. 000 The present section does not replace these sections, but permits formal defects to be ignored, and makes it unnecessary to state all facts that would be material if the parties were strangers to the litigation. It does not relieve the pleader of the necessity of stating a cause of action. [Citations.]
* a e
Notice pleading, which prevails under the federal rules (Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80, (1957)), is not sufficient under the Illinois Civil Practice Act. The pleader must state the facts essential to his cause of action. A pleading which merely paraphrases the law, ‘as though ... to say that [the pleader’s] case will meet the legal requirements, without stating the facts,’ is insufficient. Richardson v. Eichhorn, 18 Ill. App. 2d 273, 276, 151 N.E.2d 819, 821 (4th Dist. 1958).” (Ill. Ann. Stat., ch. 110, par. 42, Historical and Practice Notes, at 98-99 (Smith-Hurd 1968).)

To properly consider the problem, it is necessary to set forth in detail the relevant allegations of count V, which provide as follows:

“COUNT V
(Iber — Breach of Written Contract)
42. By virtue of its position as general contractor of the project, pursuant to the written contract, a true copy of which is attached to the Complaint as Exhibit ‘B,’ Defendant, Iber, obligated itself to cause all construction work in connection with the Math-Science Center to be performed in accordance with plans and specifications and in a reasonably workmanlike manner, a true and accurate copy of the relevant portions of which is attached to this Complaint as Exhibit ‘K’ and made a part hereof by reference.
43. On or about January 27, 1969, Iber entered into a contract with Plaintiff to build among other things the concrete deck of the aforedescribed building and install the roof on said building; the contract is attached as Exhibit ‘B’ to the Complaint and made a part here by reference.
44. After the dates of the execution of said contract and subcontract, Iber and its subcontractors entered into the performance of said contract.
45. Contrary to these obligations, Defendant, Iber, caused, or permitted, construction such that the cement roof deck from time to time experienced cracks and splits which, Plaintiff alleges in part caused or contributed to the splits in the roofing membrane described above, all to Plaintiff’s damage.
46. Defendant, Iber, failed to comply with said contract in one or more of the following respects.
a. Failed to supervise and direct the work of its subcontractors;
b. Failed to correct the work of its subcontractors which did not conform to the requirements of the contract documents;
c. Failed to remedy defects to faulty materials, equipment and workmanship of its subcontractors;
d. Contrary to standard practice and good workmanship allowed concrete deck to be made in a manner which allowed the concrete to crack, thereby causing leaks to occur in said roof at the cracks;
e. Contrary to standard practice and good workmanship installed said concrete decking in a manner which caused the concrete decking to crack, causing leaks to occur in said roof at the cracks;
f. Contrary to standard practice and good workmanship allowed White to install on the Math-Science Center defective roof membrane of a two-ply specification manufactured by Defendant, Celotex, the Barrett Bond Ply No. 220-INS as described in Paragraphs 12 and 13 which said roof membrane because of said defects split and cracked causing said roof to crack and peel;
g. Contrary to standard practice and good workmanship allowed White to install defective roof insulation “Celo-therm” as described in Paragraphs 29 and 30 which said insulation because of said defects caused the said roof to leak and split;
h. Contrary to specifications, standard practice, and good workmanship failed to inspect the work of its agents, servants and subcontractors; and
i. Otherwise failed to follow standard practice and good workmanship in the installation of the deck, insulation and roof.
47. As a result of one or more of the foregoing breaches of contract, numerous leaks occurred throughout the roof of the Plaintiff’s Math-Science Building, and the Defendant failed to repair, correct and remedy the same.”

Although the allegations of this count may generally inform Iber of the nature of the claim it will be called upon to defend, it must be kept in mind that section 42(2) of the Civil Practice Act does not relieve Knox of the obligation to plead facts and not conclusions, as stated in the Historical and Practice Notes quoted above. Applying simple logic to the question, if a motion to dismiss admits only facts well pleaded and not conclusions, then, in considering the motion, if after deleting the conclusions that are pleaded there are not sufficient allegations of fact which state a cause of action against the defendant, the motion must be granted regardless of how many conclusions the count may contain and regardless of whether or not they inform the defendant in a general way of the nature of the claim against him. In Richardson v. Eichhorn (1958), 18 Ill. App. 2d 273, the court noted the differences in the considerations to be applied when reviewing a case after judgment, based on evidence, from those to be applied in a case when the complaint is directly attacked by motion. In the latter situation, “the motion admits facts well pleaded, and conclusions may be proper if based on facts set forth, but the motion does not admit conclusions or inferences by the pleader, such as conclusions of law or of fact unsupported by allegations of specific facts on which the conclusions must rest.” Richardson v. Eichhorn (1958), 18 Ill. App. 2d 273, 276.

Notice pleading, as known in some jurisdictions, is not sufficient under our practice act. (First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 8.) Although both sections 42(2) and 33(3) of our practice act contain provisions concerning liberal construction, such provisions do not remedy the failure of a complaint to state a cause of action. In People ex rel. Kucharski v. Loop Mortgage Co. (1969), 43 Ill. 2d 150, 152, this court said:

“This court has repeatedly held that a complaint which does not allege facts, the existence of which are necessary to enable a plaintiff to recover does not state a cause of action and that such deficiency may not be cured by liberal construction or argument.” (Emphasis added.)

The same statement was made by this court in Belmar Drive-In Theatre Co. v. Illinois State Toll Highway Com. (1966), 34 Ill. 2d 544, 549, and in Fanning v. LeMay (1967), 38 Ill. 2d 209, 211. In Psyhogios v. Village of Skokie (1972), 4 Ill. App. 3d 186, 191, the appellate court stated:

“Since the passage of the Civil Practice Act in Illinois, our courts have consistently held that pleadings should be liberally construed and we have attempted to dispense with the technical niceties of common law pleading. [Citations.] However, this jurisdiction has never abandoned the essential substantive principle that a complaint must allege facts which are sufficient to state a cause of action.”

With the exception of the allegations of subparagraphs (f) and (g) of paragraph 46 of count V, the allegations of that count are generally conclusions of law and fact unsupported by any allegation of specific facts on which these conclusions may rest, which, as stated in Richardson v. Eichhorn, are not sufficient to withstand a motion to dismiss. The specific allegations of subparagraphs (f) and (g) of paragraph 46 relate to the installation of the allegedly defective Celotex roofing material, which the complaint plainly shows was specified by the architect and which, under the contract, Iber was obligated to install. Iber had no alternative but to comply with this requirement of the contract, and it was his duty to install the material complained of in subparagraphs (f) and (g). (See R. F. Conway Co. v. City of Chicago (1916), 274 Ill. 369; Clark v. Pope (1873), 70 Ill. 128; St. Joseph Hospital v. Corbetta Construction Co. (1974), 21 Ill. App. 3d 925.) These specific factual allegations do not support the other conclusions contained in count V, nor do they, standing alone, state a cause of action against this defendant. Also, although count V alleges that Iber obligated itself to cause all construction work to be performed in accordance with the plans and specifications, nowhere in count V is it alleged that the work was not done in accordance with the plans and specifications. The trial court did not err in granting Iber’s motion to dismiss count V.

In count VI, paragraph 54 contains the substance of the allegations of paragraph 45 of count V, and paragraph 56 of count VI contains the same allegations as paragraph 46 of count V. The insufficiencies of these allegations in relation to count V, as previously noted, likewise render them insufficient to state a cause of action in count VI. Although count VI is based on an alleged guarantee, it is not alleged in that count that Iber was notified of any leaks in the roof during the life of the guarantee or that Iber failed and refused to repair any leaks during the life of the guarantee. We hold that the trial court did not abuse its discretion in dismissing this count.

Our holdings with regard to count V and VI are controlling as to counts VII and VIII against Travelers. In these four counts, as in the others, it was plaintiff’s decision not to amend the complaint to remove the deficiencies in the pleadings pointed out by the motions. In these counts, as in the others, the court did not prohibit the plaintiff from filing an amendment and did not find these counts fatally defective in that they were incapable of stating a cause of action. The court, in the exercise of its sound discretion, granted these motions. We find that its discretion was not abused.

Accordingly, the appellate court and the circuit court of Knox County are both reversed as to counts I through III against Celotex, and the cause is remanded to the circuit court of Knox County for the factual determination of when the statute of limitations against said defendant began to run according to the holding of this opinion. As to count IV against Perkins and Will, the appellate court is reversed and the circuit court of Knox County is affirmed. As to counts V, VI, VII, and VIII against Iber and Travelers, the appellate court is reversed and the circuit court of Knox County is affirmed.

Appellate court reversed; circuit court affirmed in part and reversed in part; cause remanded.


author: JUSTICE UNDERWOOD JUSTICE SIMON,

text:
    (No. 54366.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BERNICE LEWIS, Appellee.

      Opinion filed November 13, 1981.

    Rehearing denied January 29, 1982.

      SIMON, J-, specially concurring.
    Tyrone C. Fahner, Attorney General, of Springfield (Melbourne A. Noel, Jr., Michael B. Weinstein, Susan M. Sherwin, and Neal B. Goodfriend, Assistant Attorneys General, and Jay Stein, law student, of Chicago, of counsel), for the People.
    Dobrovolny & Souk, of Urbana (James E. Souk, of counsel), for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Defendant, Bernice Lewis, was convicted in a jury trial in the Champaign County circuit court of murder, armed robbery and aggravated kidnaping in connection with the December 14, 1978, robbery of the Citizens National Bank in Decatur and the death of Donald Bivens, Sr., a bank security guard. The appellate court (90 Ill. App. 3d 220) reversed, holding that defendant had been deprived of effective assistance of counsel, and ordered a new trial.

Defendant, a resident of Des Moines, Iowa, was indicted with her brother, Cornelius Lewis, who had allegedly fired the shot that killed decedent. At defendant’s arraignment on March 1, 1979, it was determined that she was indigent and Scott Diamond, the Macon County public defender, was appointed to represent her. Attorney Diamond was also appointed to represent Willie Sangster, who had been separately charged with the same crimes. On March 2, 1979, the lawyer filed a petition for instructions as to whether he should continue to represent defendant. The petition indicated that the attorney had known decedent due to the latter’s prior position as an assistant probation officer and had attended decedent’s funeral. The petition stated in part:

“That the Petitioner does not feel that the fact that he did know Mr. Bivens would have any effect on giving the Defendant a vigorous defense, however, Defendant claims that due to my relationship with Mr, Bivens, she feels that I cannot fairly defend her.”

A similar petition was filed with respect to Sangster. On March 9, 1979, a hearing was held to consider whether attorney Diamond should continue to represent defendant and Sangster. The attorney testified:

“The victim of the alleged murder was Donald Bivens, Sr. Donald Bivens, Sr. had formerly been assistant probation officer in Macon County and for approximately six years I have ‘ been Public Defender of Macon County. For six years I did have a working relationship with Mr. Bivens, although I did not ever visit him in his home. My relationship was basically at work and I did consider him a friend. The defendants have raised the issue whether or not they feel I could do a fair job for them due to my relationship with Mr. Bivens. It is true I did attend his funeral, but I personally feel if appointed, I would do my job and I would intend to perform my duty. As they have raised the issue, I feel I must bring the issue before the Court. For this reason, I am asking the Court for instructions whether or not I should proceed with the cases.”

Sangster was asked his position with respect to representation by attorney Diamond and replied:

“My position on that, Your Honor, is that I feel totally uncomfortable with him representing me because of the fact that we have had various conversations on this subject and I personally feel and I hope that the Court, I beg the Court to agree with me that this man’s relationship with the person that was killed in the bank robbery was such that it would be utterly impossible for him to give me, to defend me with the enthusiasm that is necessary for me to get everything out of the law that I should get. I just don’t feel that he can give that to me and I am sorry to say that my being black and the victim being white, unfortunately due to the conditions of our society, it is going to influence him. I do believe and I feel totally uncomfortable and I beg the Court to relieve him from my case.”

Then the following exchange between the judge and defendant Bernice Lewis occurred:

“THE COURT: You have heard the statement made by the Public Defender, Mr. Diamond. You have heard the statement under oath made by Mr. Sangster, is this not correct?
A. Yes, sir, I heard it.
THE COURT: What is your position with respect to the petition that Mr. Diamond has filed?
A. I would like to have him represent me if he would.
MR. DIAMOND: I will be willing to represent the lady. It has been raised. I want to make sure it is on the record so there is no question about it.
# O *
THE COURT: Do you have any further statement?
A. No.”

At the end of the hearing, the judge stated:

“THE COURT: I am aware of no conflict, no good reason the Public Defender can’t represent Miss Lewis. oe<l
MR. DIAMOND: Do I understand I have been appointed for Miss Lewis?
THE COURT: Yes.”

Sangster’s case was continued, and defendant, with attorney Diamond representing her, went to trial with her brother. While the record indicates disagreement between defendant’s brother and his lawyer, the only apparent discord between defendant and her attorney involved the area of identification-alibi witnesses. On the fifth day of the trial the judge explored disagreement which appeared to have arisen between defendant and attorney Diamond concerning the possibility of an alibi defense. During the discussion, attorney Diamond made it clear that he would abide by defendant’s decision with respect to the alibi:

j£ js going to order me to put on this alibi defense which I feel will not go over well, I will have no other choice but to put it on.”

One factor in his assessment of the possibility of an alibi defense was the strength of the prosecution witnesses’ identification of Bernice, placing her in Decatur. He had tested these identifications by his own photo lineup.

«9 9 9 j went out to K-Mart and went up to several black women, and asked to take their pictures. After some difficulty I was able to get six women to let me take pictures of them. They were similar in age and height to my client. I accidentally got the K-Mart in the background. So I made arrangements with the Sheriff’s office, asked them whether or not I could make arrangements for Miss Lewis to be taken out and have her picture taken so it would be the same background. The Sheriff cooperated. I then took the seven pictures to different witnesses and asked them if they could identify my client, to check out the alibi. And based on their information I felt that to say there was an alibi defense would be ridiculous. They identified Miss Lewis as being in Decatur, as being the person. oe#”

Attorney Diamond indicated that Shirley Steele, an Iowa attorney whom the defendant knew, agreed with his assessment of the possibility of an alibi:

“*** I talked to Shirley Steele on Saturday, and since Bernice has a lot of confidence in Shirley, I told Shirley we would be better off with no alibi; to say that Bernice wasn’t here in Decatur, it is absurd to say she was in Iowa. Too many people have identified her. My advice to my defendant is that two men supposedly committed the armed robbery. No one ever identified my client as being present. e## Shirley Steele agreed with me, and my client talked with Shirley Steele. I don’t want to put on an alibi defense. I told my client I could do a better job putting on the witnesses I have. I have advised her not to testify. I think she is willing to go along with my trial strategy. However, if she wants to get up on the stand and say she was in Iowa, we’ll have to wait for the witnesses. ”#<l Miss Lewis agreed to go along with my strategy. *<to”

Eventually defendant agreed with the decision not to call the alibi witnesses.

“MR. DIAMOND: Those people from Iowa are now present. However, I do not intend to use the witnesses, and Miss Lewis wants them to be in the courtroom to hear the rest of the case. I want to make it clear if they are in the courtroom, we can never call them as witnesses. Is that what you want? They are present — .
MISS LEWIS: I know.
MR. DIAMOND: You told me they are here. And I’m saying they can step in the courtroom, because I’m agreeing not to use them as witnesses.
MISS LEWIS: That’s correct.”

There is in the present case no claim of incompetency with respect to attorney Diamond’s representation of defendant, which defendant’s counsel at oral argument agreed had fairly been characterized as “vigorous.” Nor was there in the present case any prejudice resulting from attorney Diamond’s representation of defendant. At one point during the trial the judge stated that “there is certainly nothing that I have been able to see about counsel’s handling of this case that leads to any criticism of them.” Although defendant now criticizes attorney Diamond’s advice to defendant that she not pursue an alibi defense on the grounds that the advice may have been subliminally influenced by his acquaintanceship with decedent, the record indicates counsel was energetic and thorough in checking the alibi defense, devising his own photo lineup to check the strength of the identifications by prosecution witnesses which would have been used to destroy the alibi. He made clear the reasoning behind his suggested trial strategy. It was also made clear to defendant that the ultimate decision whether to rely on an alibi and whether to testify rested with her. She eventually agreed, with no protest, apparently influenced in part by the judgment of Shirley Steele to forgo calling the alibi witnesses.

We are thus confronted with the question whether a public defender’s work-based acquaintance with a former probation officer murdered in the course of a robbery amounts to a conflict of interest such that the public defender’s representation of one charged with murder, because of involvement in the robbery, would, without any showing of prejudice, deprive defendant of effective assistance of counsel in violation of the sixth and fourteenth amendments to the United States Constitution.

The sixth amendment right to counsel includes a correlative right to representation free from conflicts of interest. (Wood v. Georgia (1981), 450 U.S. 261, 67 L. Ed. 2d 220, 101 S. Ct. 1097; Cuylerv. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708; Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173; Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457.) This court has fashioned a per se rule to protect this right to counsel. If a conflict of interest in the form of conflicting professional commitments is shown, defendant need not demonstrate any prejudice to justify reversal. People v. Robinson (1979), 79 Ill. 2d 147; People v. Fife (1979), 76 Ill. 2d 418; People v. Franklin (1979), 75 Ill. 2d 173; People v. Coslet (1977), 67 Ill. 2d 127; People v. Kester (1977), 66 Ill. 2d 162; People v. Meyers (1970), 46 Ill. 2d 149; People v. Stoval (1968), 40 Ill. 2d 109.

We should state at the outset that, in our judgment, the defendant waived her right to object to any supposed conflict of interest which her lawyer’s acquaintance with the victim might pose. In our opinion defendant was adequately informed of the significance of the supposed conflict and understood how it could arguably affect her representation (People v. Stoval (1968), 40 Ill. 2d 109). The dialogue between the judge and defendant on March 9, 1979, was short, but, as defendant’s brief states: “The conflict here was not subtle nor the pressure subliminal.” Rather, the problem, the possibility that acquaintance with a murder victim might indicate emotional ties which would interfere with counsel’s representation of one charged with that murder, required no judge’s explanation as a conflict resulting from legal complexities might. This court stated in People v. Johnson (1979), 75 Ill. 2d 180, 188:

“The judge’s failure to expressly state the obvious does not render ineffective an otherwise voluntary, knowing and understanding waiver.”

Comprehension of the supposed conflict in the present case required neither a knowledge of the workings of an undisclosed contingent-fee arrangement (People v. Meyers (1970), 46 Ill. 2d 149, 152) nor understanding of “the subtleties of the laws of descent and distribution; the effect of a conviction for murder or voluntary manslaughter on her rights to inherit; the duties of an attorney for the administrator of her husband’s estate; [or] the fiduciary relationship between the administrator and the heirs of an estate °°°.” (People v. Coslet (1977), 67 Ill. 2d 127, 135.) Nor has defendant been shown to have been unaware of key facts concerning her attorney’s loyalty at the time she waived the issue. (People v. Kester (1977), 66 Ill. 2d 162.) The United States Supreme Court stated in Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023:

“A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

We believe that, under the circumstances of this case, including Sangster’s statement and the nature of the supposed conflict, waiver ordinarily would be a sufficient ground on which to dispose of this case. However, because defendant’s argument poses an issue which has not heretofore been discussed by this court, we deem it advisable to rule on its merits.

This court summarized its rule in People v. Franklin (1979), 75 Ill. 2d 173, 176:

“This court has repeatedly stated that a defendant’s fundamental right to effective assistance of counsel entitles the person represented to the undivided loyalty of counsel and prohibits a defense attorney from representing conflicting interests or undertaking the discharge of inconsistent obligations. [Citations.] In furtherance of this fundamental right, this court has adopted a per se rule which provides essentially that where defense counsel is involved in an actual or potential conflict of interest, it is unnecessary for the defendant to establish actual prejudice, as prejudice is presumed by law. [Citations.]”

Only in those instances where the conflict arose in counsel’s professional relationships and obligations have the past decisions of this court dispensed with the requirement that prejudice be shown. In People v. Robinson (1979), 79 Ill. 2d 147, we did not deem a personal allegiance or loyalty to the public defender’s office sufficient to justify a rule that if one attorney employed by such an office were disqualified by reason of a conflict of interest, no other attorney employed by that office could undertake the representation. We believe the facts of the present case do not warrant extension of our per se rule to supposed conflicts arising from personal relationships which do not involve substantial emotional ties.

The Supreme Court of North Carolina in State v. Sneed (1974), 284 N.C. 606, 201 S.E.2d 867, considered a situation similar to the present case, and decided that defendant had not been deprived of effective assistance of counsel. Defendant there had complained that his attorney had been a friend of the policeman of whose murder defendant was accused. The attorney testified at a hearing to consider the conflict “that he knew Patrolman Wright and that they were friends. He knew of the public concern about Patrolman Wright’s killing, but he did not feel that he would be adversely affected because he represented Sneed. He did not advise his client on the premise that it would or would not adversely affect him as a lawyer or an individual, but his advice was given solely on the premise that it would be helpful to his client.” (State v. Sneed (1974), 284 N.C. 606, 610, 201 S.E.2d 867, 869-70.) That court stated that the sixth amendment required that counsel not be “hobbled by divided loyalties,” citing, among other cases, our opinion in Stoval, but concluded:

“This record does not support defendant’s contentions that counsel was fettered by divided loyalties. The evidence of record reveals that the relationship between counsel and the deceased patrolman was no more than that of casual acquaintances.” (284 N.C. 606, 614, 201 S.E.2d 867, 872.)

Similarly, in the present case, attorney Diamond testified that his relationship with decedent was a “working relationship” and that he had never visited the victim’s home. The lawyer’s testimony that “my relationship was basically at work and I did consider him a friend” appears to indicate that the victim fell in that large group of not antagonistic persons with whom one has contact in the workplace. An attorney might be expected to attend the funeral of such acquaintances. This does not mean that he would be so influenced by emotion that he would be unable to judge the effect the relationship might have on his representation of his client. Nor do we agree with the appellate defense counsel’s assertion that mere duration of such an acquaintanee makes it more than “casual.” The character of a relationship is, in our estimation, determined by the quality, not the quantity of contacts. The supposed conflict in the present case is, in fact, even more attenuated than that in Sneed, since defendant in the present case was accused of murder by reason of involvement in the robbery, not, as in Sneed, by reason of firing the fatal shot.

An attorney is required to serve all segments of society, including those persons with whom he might personally feel little affinity. It should not be presumed that attorneys are unable to judge whether they can subordinate personal feelings to professional duty. The problem in Stoval, and in United States ex rel. Miller v. Myers (E.D. Pa. 1966), 253 F. Supp. 55), a case relied on in Stoval, and in the other cases in which we have applied a per se rule, was one of division of professional loyalties. Our per se rule does not, however, stem from any fear that attorneys would lightly abandon professional obligations or violate their oaths. Rather, we have simply deemed it inadvisable to subject an attorney to the ordeal of attempting to fairly discharge conflicting professional obligations to different clients. A concern eliminated by that rule is the possibility of undercompensation or overcompensation by attorneys involved in such situations. United States v. Jeffers (7th Cir. 1975), 520 F.2d 1256.

If the per se rule were extended to the present case, there would appear to be no appropriate limit to that rule. Much of the rationale urged with respect to personal acquaintance with victims would apply to acquaintance with witnesses, at least key prosecution witnesses. (See People v. Robinson (1979), 79 Ill. 2d 147; People v. Stoval (1968), 40 Ill. 2d 109.) A per se rule which disqualified a defense lawyer because of his acquaintanceship with law-enforcement officers who are to be called upon to testify at a criminal trial would, if carried to its logical conclusion, seem to preclude any localized practice by a criminal defense attorney. Under such a rule, as the attorney handled more cases, and became more acquainted with law-enforcement personnel, he would be progressively restricted in the criminal cases which he could take. Finally, if such personal relationships pose per se disqualifying conflicts of interest, the ramifications of the rule would not be limited to criminal defense counsel, for prosecutors acquainted with defendants or their witnesses would face similar problems. And, in our judgment, the same considerations could well apply to civil litigation.

Extension of the per se rule to work-related acquaintances might also handicap efforts to provide adequate counsel for defendants, particularly in the smaller counties of the State. (See People v. Robinson (1979), 79 Ill. 2d 147.) In such counties all attorneys, or at least all attorneys having any substantial criminal practices, would likely be acquainted with local law-enforcement personnel and locally assigned State law-enforcement personnel. Accordingly, under the rule defendant urges us to adopt, it might well be the case that the better qualified local attorneys would be precluded from representing a defendant in a case similar to the present one. Defendants, or in the case of indigent defendants, society, might bear the added expense incident to distant counsel. Such defendants would be regularly deprived of advantages, including knowledge of local rules, procedures, and personnel, which local counsel might provide.

A defendant must demonstrate prejudice in order to obtain a new trial where the alleged conflict involves only his appointed attorney’s personal workbased acquaintance with the victim, rather than some type of professional commitment or obligation toward that victim. Since no prejudice has been demonstrated in the present case, it is clear that no new trial is required.

Accordingly, the judgment of the appellate court is reversed, and this cause is remanded to that court for consideration of issues there presented but not decided.

Reversed and remanded, with directions.

JUSTICE SIMON,

specially concurring:

I concur, except that I disagree with the court’s holding that the defendant waived her right to object to any conflict of interest that might have existed.

The situation here, as the majority opinion sets it forth, is that attorney Diamond filed a petition stating that, because of his supposed conflict of interest, the two defendants (Bernice Lewis and Willie Sangster) felt he could not fairly represent them. A hearing followed to consider whether attorney Diamond should continue in the case. The court first asked Sangster how he felt about being represented by attorney Diamond. I would characterize his response as a strong negative. Sangster not only expressed the feeling that the attorney’s previous friendship with the murder victim would interfere with the enthusiasm that was necessary for the attorney to represent Sangster but also observed that he felt the attorney would be influenced by the fact that the victim was white and the defendant was black.

Next, after noting that Bernice Lewis had heard Sangster’s statement, the judge asked her to state her position. Lewis’s response was a 180-degree turn from her position that counsel had indicated in the petition which initiated the hearing — that is, that attorney Diamond could not fairly represent her because of his friendship with the victim. I find nothing in Sangster’s statement which could have led Bernice Lewis to change her position. Everything Sangster said was completely consistent with and supported the position that, according to the attorney’s petition, Sangster and Lewis had been taking.

In these circumstances I feel that justice and constitutional guarantees required the trial judge to look further for the defendant’s reason for her dramatic shift in position. Her response, in view of her previously stated position and Sangster’s statement, was totally unexpected. The judge, instead of accepting her response at face value and proceeding with Mr. Diamond as her attorney, had the responsibility of determining whether she really knew what she was doing. In making this inquiry the trial judge should have considered both the fact that the defendant was being tried a long distance from her home in Des Moines, Iowa, as well as her background, experience and education. (Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461,1466, 58 S. Ct. 1019, 1023.) The record does not show that the trial judge was presented with any of this information when he concluded there was no good reason Mr. Diamond could not represent the defendant.

Perhaps Bernice Lewis thought that if attorney Diamond did not represent her, the court would not provide other counsel. Perhaps she thought that after Sangster had injected racial issues into the proceedings with his statement, she, being black, could curry favor with the white judge and white defense attorney by acquiescence. Perhaps there were other motivations. Whatever the reason, the record is devoid of a satisfactory explanation for her change of mind and the trial judge, instead of accepting her reversal, should have delved deeper to find out the reason. I am not satisfied that what the majority accepts as a waiver was either knowing or voluntary, especially because the law raises every reasonable presumption against waiver of fundamental constitutional rights (People v. Stoval (1968), 40 Ill. 2d 109, 114), among which is the right to counsel guaranteed by the sixth amendment and provided by article I, section 8, of the Illinois Constitution of 1970.

I concur rather than dissent because, although the defendant’s objection was not effectively waived, I agree with the majority that any conflict which existed was not a per se conflict and that no shortcoming has been shown in the legal representation the defendant received. The general rule is that an indigent defendant is not entitled to counsel of her choice. (People v. Cox (1961), 22 Ill. 2d 534.) Where a per se conflict does not exist, this general rule is applicable. A defendant may as a matter of grace, and upon timely demand, be given new counsel when any perceivable conflict is slight and remote, as in this case. But, new counsel under such circumstances is not a matter of right. And, unless the defendant can show she was prejudiced by the representation she received, I agree with the majority that a new trial is not required. I also agree with the majority that Bernice Lewis has not made such a showing here, and thus join in the judgment of the court.