author: JUSTICE PERLIN

text:
      In re ADOPTION OF TASHYNA NICOLE MILLER, a Minor.—(OSIE PERNELL et al., Appellees, v. KEVIN J. MILLER, Appellant.)
    First District (2nd Division)
    No. 81-245
    Opinion filed May 18, 1982.

      William R. Jacobs, II, of Chicago (Jerome Marvin Kaplan, of counsel), for appellant.
    Les Dombai, of Legal Aid Bureau, of Chicago, for appellees.
   JUSTICE PERLIN

delivered the opinion of the court:

Appellant, Kevin J. Miller (Miller), the natural father of a minor child, Tashyna Nicole Miller, filed a petition to vacate a judgment of adoption entered in favor of appellees, Francene Pernell, the child’s natural mother, and Osie Pernell, Jr., Francene’s second husband (the Pernells). Miller’s petition alleged that service of process was defective because, his last known address listed in the affidavit for service by publication was incorrect. The trial court found that service was defective but sustained the Pernells’ motion to dismiss and denied Miller’s petition based upon its determination that Miller had not shown due diligence in attacking the judgment of adoption. Miller was granted leave to file a late notice of appeal.

On appeal Miller contends that the trial court erred in dismissing his petition on the ground that he had failed to exercise due diligence. For the reasons hereinafter stated, we affirm the order of the trial court.

On October 31, 1977, appellees, Osie Pernell, Jr., and Francene Pernell, husband and wife, filed a petition to adopt Tashyna Nicole Miller, the daughter of Francene Pernell and her former husband, appellant Kevin Miller. The petition alleged that Miller was an unfit person on grounds of abandonment, desertion and failure to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare. The petition also alleged that Miller’s whereabouts were unknown to the Pernells. Service of process on Miller was by publication. On November 3,1977, Francene Pernell’s affidavit for service by publication was filed. The affidavit stated that on due inquiry Miller could not be found so that process could not be served on him and gave his place of residence as 515 East 64th Street, Chicago, Illinois.

On November 14,1977, the clerk of the circuit court filed a certificate of mailing which stated that a copy of the adoption publication notice had been mailed to Miller at 515 East 64th Street, Chicago, Illinois. On November 18, 1977, the post office returned the notice to the clerk with the notations “NSN” and “No such number.” On November 22, 1977, the Law Bulletin Publishing Company filed its certificate of publication. On December 8, 1977, an order of default was entered against Miller and his parental rights were terminated. On the same date a judgment for adoption was entered for the Pernells.

On November 22, 1978, almost one year after the judgment for adoption was entered, Miller appeared in the circuit court, divorce division, on an emergency motion for visitation with Tashyna. He was represented by the same attorney who represented him in the proceedings below. The Pernells appeared pro se and presented the court with a copy of the judgment for adoption. Miller and his counsel were also handed a copy of the judgment and were advised by the court that, in view of the adoption, Miller had no right to visitation.

On August 15, 1980, approximately 21 months after Miller and his counsel learned of the adoption judgment, Miller filed a petition for leave to examine the file in the adoption case, alleging that as Tashyna’s father he was not served with summons at his then residence of 3810 Tidewater, Houston, Texas, that he did not receive a notice of publication and that he had no independent knowledge of the adoption proceedings. The petition asked that his attorney be allowed to examine the file to discover what effort had been made to serve Miller and to ascertain the address to which the summons had been sent. The petition requested that a hearing be held to determine the validity of service and that the judgment for adoption be vacated and the matter be set down for trial on the merits of the petition for adoption in the event that the court found that proper service was not had. On September 14, 1980, Miller’s attorney was granted leave to examine the court file in the adoption judgment.

On November 18,1980, the Pernells filed a motion to dismiss Miller’s petition to vacate the adoption judgment. Their motion stated that Miller’s petition was legally insufficient in that Miller alleged no facts which would indicate that the Pernells knew his whereabouts while the petition for adoption was pending and that Miller had thus failed to show that service of notice of the adoption petition by publication was improper. The Pernells’ motion asserted that even if service by publication had been defective in some respect, Miller’s petition should be dismissed on grounds of laches in that Miller and his attorney were informed of the adoption judgment in open court on November 22,1978, yet did not file a petition to vacate that judgment until almost 21 months later. Finally, the motion to dismiss claimed that allowing Miller’s petition to proceed would cause great prejudice not only to Osie and Francene Pernell but also to Tashyna in that she has lived with them in a family unit since 1975, when she was one year old, and that Miller had not seen or communicated with her since January 1975. An affidavit of Francene Pernell was submitted in support of the motion to dismiss. Pernell averred that she did not know the whereabouts of Kevin Miller prior to, during or subsequent to the time the adoption took place. She stated fiirther that the last address she had for Miller was that of his mother who resided at 328 West 60th Place, Chicago, Illinois, which is the address she stated that she furnished to her then attorney, James Seaberry. The affidavit did not explain why Pernell’s affidavit for service of publication listed Miller’s address at 515 East 64th Street.

On December 2, 1980, Kevin Miller filed a petition to vacate the judgment of adoption. The petition recited that he and Francene Pernell were divorced on July 26, 1974, that Francene was awarded custody of their child, Tashyna, that he was given reasonable visitation rights and that the summons in the divorce action had been issued to Kevin Miller, 328 West 60th Place, Chicago, Illinois, c/o Loretta Miller, his mother. Noting that Francene Pernell’s affidavit for publication filed with the petition to adopt gave his last known address as 515 East 64th Street, Chicago, Illinois, Miller’s petition stated that at the time Francene Pernell’s affidavit was filed he lived at 3810 Tidewater, Houston, Texas. The petition stated further that there is no such address as 515 East 64th Street, Chicago, Illinois and alleged that at the time the adoption petition was filed Francene Pernell knew where respondent resided and that “he [Miller] cannot explain why she gave her then attorney wrong information, unless it was to keep him, the natural father, from learning of the intended adoption.” Finally, the petition represented that Miller did not discover until November 22,1978, that a judgment for adoption had been entered and that Miller consulted an attorney to challenge the judgment but he was not financially able to proceed further at that time.

On December 10, 1980, Miller was granted leave to amend the caption of his petition to vacate, to designate it as a petition for relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72). On the same day a hearing was held before the trial court on Miller’s petition and on the Pernells’ motion to dismiss. Kevin Miller was not present but was represented by his attorney, who answered ready on the motion to dismiss.

During oral argument before the trial court, counsel for the Pernells conceded that Francene Pernell’s affidavit for service of publication gave a different last known address for Kevin Miller than she gave her attorney, and counsel stipulated that the address in the publication does not exist. Counsel for Kevin Miller acknowledged that both he and his client had actual knowledge of the judgment for adoption in November 1978. Miller did not attempt to vacate or attack the judgment at that time because, according to his attorney, he “happens to be a traveling man. This is his work. He didn’t have the money to start right away and it was inconvenient and one thing or another.” No oral testimony was taken.

The trial court found that the concededly defective service was obviated by the fact that Miller did have actual knowledge of the adoption judgment within a year of its entry, at which time he could have attacked the judgment if he so chose. Instead, “he waited some 21 months, t> o « » ■j'jjg court held that in a section 72 petition it is “incumbent upon any such petitioner to illustrate diligence,” particularly in a case such as this where “the paramount interest of the child 900 requires that these matters be determined at the earliest possible time and not be delayed.” The court found that Miller had not shown due diligence:

“It is my determination that such diligence in such an important matter as your child and the child you profess to want and to assert your rights over was not demonstrated here. It’s my feeling that such an important interest is not a passing fancy, not something that should occur to a parent almost as an afterthought or wait until circumstances become absolutely ripe or most propitious. It’s something that must be attended to immediately; not just for your own concern, but for the concerns of that child.”

For these reasons the court granted the Pernells’ motion to dismiss and denied Miller’s petition for relief, from which order Miller appeals.

Miller contends that the judgment for adoption is void ab initio because service by publication was defective. Since, according to Miller, a void judgment may be attacked at any time, his petition to vacate the adoption judgment did not have to demonstrate the due diligence required of petitions challenging voidable judgments. In the alternative, Miller contends that his failure to file his petition to vacate the adoption judgment for 21 months after he learned of its entry was “satisfactorily explained by his allegation that he lacked funds to engage counsel.” The Pernells respond that the judgment for adoption was merely voidable and that Miller, therefore, was obligated to show due diligence in challenging it. They claim that Miller’s petition failed to make this showing. The Pernells respond further that regardless of the characterization of the judgment as void or voidable, Miller’s petition to vacate was barred by laches.

Under our system of civil procedure, proper service of summons is a necessary element to obtaining jurisdiction over a party. (Home State Savings Association v. Powell (1979), 73 Ill. App. 3d 915, 917, 392 N.E.2d 598.) Thus, any judgment rendered under circumstances where this jurisdictional standard has not been fully followed is void ab initio for lack of jurisdiction over the defendant. (Home State Savings Association v. Powell (1979), 73 Ill. App. 3d 915, 917.) Section 72(6) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72(6)) expressly provides that relief from a void judgment is not limited by the provisions of section 72. A motion to vacate for want of proper service is not a petition under section 72 after valid service (Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App. 3d 581, 585, 366 N.E.2d 1015) and a party raising the issue of lack of jurisdiction is not subject to the strictures of either the time limitations or the requirement of due diligence to which petitions relying on section 72 must conform (Home State Savings Association v. Powell (1979), 73 Ill. App. 3d 915, 917). Nor is he obligated to plead a meritorious defense. (Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App. 3d 581, 585.) Nevertheless, while the strictures of section 72 do not apply, the equitable defense of laches may be interposed to an attack on a void judgment. (James v. Frantz (1961), 21 Ill. 2d 377, 383,172 N.E.2d 795; Miller v. Bloomberg (1978), 60 Ill. App. 3d 362, 365, 376 N.E.2d 748.) Since we find that Miller’s petition was barred by laches, it is unnecessary to determine whether the adoption judgment was void or merely voidable.

Laches has been defined as “such neglect or omission to assert a right, taken in conjunction with a lapse of time of more or less duration and other circumstances causing prejudice to an adverse party, as will operate to bar relief in equity.” (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 552, 147 N.E.2d 341.) The existence of laches “depends on whether, under all circumstances of a particular case, a plaintiff is chargeable with want of due diligence in failing to institute proceedings before he did. (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 552.) The laches doctrine may be invoked to preclude the assertion of parental rights. (In re Miller (1980), 84 Ill. App. 3d 199, 202, 405 N.E.2d 25; Rodriguez v. Koschny (1978), 57 Ill. App. 3d 355, 360-62, 373 N.E.2d 47.) The justification for applying the laches doctrine to adoption judgments is that:

“ ‘The adoption decree is sui generis because it closely concerns the life of someone other than the contending parties, the child. A rule that an individual’s right to set aside a judgment entered without jurisdiction over him cannot be cut off by lapse of time (assuming there is such a rule) does not and should not apply to the case where interests exist superior to those of the party whose rights are terminated.’ ” H. Clark, Domestic Relations sec. 18.10, at 667 (1968), cited with approval in Rodriguez v. Koschny (1978), 57 Ill. App. 3d 355, 361, 373 N.E.2d 47.

While the trial court did not explicitly base its dismissal of Miller’s petition on the ground of laches, the court did take into account facts on which a finding of laches could have been made. In any event we are not limited or confined to the precise reasons given by the trial court in entering its order and may consider the Pernells’ claim that Miller’s petition to vacate was barred by laches. Murphy v. Rochford (1977), 55 Ill. App. 3d 695, 701, 371 N.E.2d 260.

To assert the defense of laches a party must show both that there was unreasonable delay in bringing the action and that the delay materially prejudiced him. (Murphy v. Rochford; Slatin’s Properties, Inc. v. Hassler (1972), 53 Ill. 2d 325, 330, 291 N.E.2d 641.) We consider first the element of delay.

It is undisputed that on November 22, 1978, both Miller and his counsel were expressly told that a judgment for adoption had been entered 11 months earlier. Despite this knowledge Miller waited almost 21 months to file a petition attacking that judgment. In attempting to explain why Miller had waited so long, his counsel advised the trial court that Miller “happens to be a traveling man. This is his work. He didn’t have the money to start right away and it was inconvenient and one thing or another.” We do not believe this satisfactorily explains a delay of almost two years in instituting these proceedings. A similar justification for delay in filing an attack on an adoption judgment was rejected in In re Adoption of Rayborn (1975), 32 Ill. App. 3d 913, 337 N.E.2d 296.

In In re Adoption of Rayborn, the natural father filed a section 72 petition to vacate an adoption more than two years after the judgment had been entered. The father alleged that he had been fraudulently induced to sign a consent, that the adopting father had concealed his criminal record and that he (the natural father) had been under a legal disability because he had been on medication. With respect to the last allegation the court stated that “[h]e [the natural father] was neither mentally incompetent nor under age during that period; the fact that he may have been ill, unemployed and without funds to retain counsel cannot, under the circumstances, constitute legal disability or duress.” In re Adoption of Rayborn (1975), 32 Ill. App. 3d 913, 915.

The record shows that Miller had counsel and was employed at the time he learned of the adoption judgment. Neither Miller nor his counsel ever represented to the court that he had sought and had been denied legal aid. Miller, however, contends that the trial court erred in proceeding on the Pernells’ motion to dismiss in Miller’s absence, in not holding an evidentiary hearing on the motion and in not permitting his counsel a continuance for the purpose of obtaining an affidavit from Miller setting forth his reasons for not attacking the judgment sooner. We must reject these contentions.

Examination of the record reveals that on October 27,1980 the trial court set a status hearing for November 10, 1980. Miller was present on October 27 and advised the court that he had traveled from Phoenix, Arizona, to attend the hearing. After being so informed, the court excused Miller “from attending the hearing on November 10,1980.” Miller was not excused from appearing on December 10, and his counsel answered ready in his absence. An evidentiary hearing is not necessary where a petition’s well-pleaded facts, assuming them to be true, are insufficient to warrant the relief requested. The issue of laches does not have to be decided after a trial on the merits but may properly be determined on a motion to dismiss if its applicability appears from the face of the complaint or by affidavits submitted with the motion. (See Beckham v. Tate (1978), 61 Ill. App. 3d 765, 768, 378 N.E.2d 588.) Finally, we find no error in the trial court’s refusal to allow counsel a continuance so that he could submit an affidavit from Miller purporting to explain his delay in challenging the judgment. Counsel at no time made an offer of proof or any representation to the court that Miller’s affidavit would contain any facts he had not already disclosed to the trial court in argument on the motion to dismiss. Since the court did not dispute the veracity of these facts but merely found them legally insufficient to justify the 21 month delay, no affidavits were necessary.

We believe the delay in the instant case was unreasonable. In In re Miller (1980), 84 Ill. App. 3d 199, 405 N.E.2d 25, the court found that a motion filed by the natural father on December 13, 1978 to vacate an order of guardianship entered on January 29, 1976 which the father apparently discovered in March in 1976 was barred by laches. Although, in Miller, there was a delay of approximately 33 months in filing the motion to vacate after the father had reason to believe that a judgment had been entered, whereas in the case at bar the delay was only 21 months, here the father had actual knowledge of the adoption judgment and yet failed to take any steps to challenge it for almost two years. In Miller the natural father did not have actual knowledge of the judgment but merely “knowledge of circumstances which would lead a reasonable person to make an inquiry.” (In re Miller (1980), 84 Ill. App. 3d 199, 202.) We believe it is reasonable to expect and to require a parent to act more promptly in protecting his interests where he has actual knowledge of the earlier judgment. Because the factual circumstances are so dissimilar from those present here, we find Miller’s reliance on Akers v. Christen (1973), 11 Ill. App. 3d 369, 296 N.E.2d 774, unfounded.

In dismissing Miller’s petition, the trial court commented that a parent’s interest in his child “is not a passing fancy, not something that should occur to a parent almost as an afterthought or wait until the circumstances become absolutely ripe or most propitious.” Rather it is “something that must be attended to immediately; not just for your own concern, but for the concerns of the child.” We agree with these comments and find that Miller’s delay in attacking the adoption judgment was unreasonable.

To establish the defense of laches it is not sufficient for a party to show merely that there was unreasonable delay in bringing the action. He must also show that the delay materially prejudiced him. In the case of an adoption the potential of prejudice is greater because the delay affects not only the immediate parties but also the child.

Here we note that the Pernells have lived with Tashyna as a family since 1975 when she was one year old. Tashyna’s natural father has not seen her or communicated with her since January 1975, which was almost three years before the judgment of adoption was entered. In our opinion it would be extremely prejudicial to the stability of the family life Tashyna has enjoyed to permit the natural father to wait almost two years after he learned of the adoption to attack it. As one court has observed, “[pjrobably in no other area of the law is the desirability of finality of determination greater than that which obtains in the field of adoption of children.” (Stewart v. Rouse (Tex. Civ. App. 1971), 469 S.W.2d 615, 616, affd in part and rev’d in part (Tex. 1972), 475 S.W.2d 574.) To allow Miller to challenge the judgment of adoption 21 months after he discovered it and more than 5¡á years after he last saw Tashyna would unquestionably disrupt the tranquility of a family unit which now involves not an infant but an eight-year-old child and her adoptive parents with whom she has lived during her critically significant formative years. We decline to do so.

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

Affirmed.

STAMOS, P. J., and HARTMAN, J., concur.

       Although Miller designated his petition as a petition for relief under section 72 of the Civil Practice Act, “we are not precluded from noticing that the petition alleges matters which question whether the court had jurisdiction.” (Home State Savings Association v. Powell (1979), 73 Ill. App. 3d 915, 917.) A petition challenging a judgment as void need not meet the requirements of section 72, even if the party filing the petition deems it to be a petition under that section. First Federal Savings & Loan Association v. Brown (1979), 74 Ill. App. 3d 901, 905, 393 N.E.2d 574; Rickard v. Pozdal (1975), 31 Ill. App. 3d 542, 545, 334 N.E.2d 288.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY PAYNE, Defendant-Appellant.
    First District (3rd Division)
    No. 79-1013
    Opinion filed May 19, 1982.

      James J. Doherty, Public Defender, of Chicago (Kathleen O’Donovan and Ira Chur gin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Adrienne Noble Nacev, and Mark A. Graf, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Stanley Payne, was found guilty by a jury and sentenced on three counts of aggravated battery and one count of armed violence. The jury was unable to reach a verdict as to other counts against him. Defendant, who is black, contends that, over his objections, the prosecutor systematically used peremptory challenges during the voir dire examination of the jurors to exclude blacks from the jury solely because they were blacks. It is defendant’s position that he was denied the type of fair trial guaranteed under the sixth amendment of the United States Constitution because the State affirmatively frustrated his right to a jury drawn from a fair cross section of the community. We reverse the convictions and remand the case for a new trial.

We believe this case presents broader issues than those which surface from a mere factual recitation of what occurred. This case involves the proper roles of the State, the prosecuting attorney and the court itself in a criminal trial.

Initially, we must not overlook the fact that in a criminal trial, it is the State that is the plaintiff throughout the entire proceeding. Thus, if a State’s Attorney, assistant State’s Attorney, jury commissioner or prosecuting attorney effectively practices racial discrimination, it is not just the individual officer or attorney who is racially discriminating against the accused, but rather the State itself. With this in mind, the threshold question in this case is not whether on voir dire a prosecuting attorney can exclude blacks from serving as jurors solely because they are blacks, but whether the State itself can so exclude blacks. We hold that such acts by the State are repugnant to the sixth amendment of the Constitution of the United States.

A defendant’s right to an impartial jury under the sixth amendment gives him a constitutional entitlement to a jury drawn from a fair cross section of the community. (Taylor v. Louisiana (1975), 419 U.S. 522, 528-30, 42 L. Ed. 2d 690, 696-98, 95 S. Ct. 692, 696-97.) We believe that the State may not at any stage of the jury selection process affirmatively frustrate this entitlement by systematically excluding blacks from the jury solely because they are blacks. In Taylor, the Court stated:

“Our inquiry is whether the presence of a fair cross section of the community on venires, panels, or lists from which petit juries are drawn is essential to the fulfillment of the Sixth Amendment’s guarantee of an impartial jury trial in criminal prosecutions.
We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge. Duncan v. Louisiana, 391 U.S., at 155-156. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.” 419 U.S. 522, 526-30, 42 L. Ed. 2d 690, 695-98, 95 S. Ct. 692, 695-97.

Although the Taylor case involved the exclusion of a discrete group during the venire selection rather than during the voir dire selection of jurors, we see no rational difference warranting the allowance of racial discrimination by the State in the latter instance but not the former. Obviously, the very purpose of refusing to tolerate racial discrimination in the composition of the venire is to prevent the State’s systematic exclusion of any racial group in the composition of the jury itself. The desired goal of interaction of a cross section of the community does not occur within the venire, but rather, is only effectuated by the petit jury that is selected and sworn to try the issues. It follows that the systematic exclusion of prospective jurors solely because of their race is equally invidious and unconstitutional at any stage of the jury selection, i.e., from the time the general jury list is prepared by the jury commissioner until the jury is actually selected and sworn. If we were to hold otherwise, the constitutional right to a jury drawn from a fair cross section of the community could be rendered a nullity through the use of peremptory challenges. We would have to resort to casuistry to hold that a State may do at the voir dire selection of the jury what it is constitutionally precluded from doing at the venire selection of the jury.

Our holding that the State may not exclude blacks from the jury during the voir dire solely because they are blacks does not mean that any individual black is insulated from the use of peremptory challenges to exclude any individual. Nor does our holding mean that a defendant is entitled to a petit jury proportionately representing every group in the community or that the petit jury must include blacks because the defendant is black or for any other reason. What it does mean, however, is that a defendant is constitutionally entitled to a petit jury that is as near an approximation of the ideal cross section of the community as the process of random draw and constitutionally acceptable procedures permit. It also means that the State may not affirmatively frustrate this constitutional entitlement.

We next look to the role of the prosecuting attorney in a criminal case. The duty of the prosecuting attorney is to seek justice, not merely to convict. (ABA Standards, The Prosecution Function 1.1(c) (1974).) Thus, the prosecuting attorney must be a champion for justice first and secondarily an advocate seeking conviction. (ABA Code of Professional Responsibility EC 7 — 13 (1979).) When a prosecutor excludes blacks from the jury solely because they are blacks, he is not primarily seeking justice. He is only seeking to convict. This is a clear violation of his professional duty.

It is worth reflecting on the fact that the framers of both our Federal and State constitutions intended to give the accused an “inestimable safeguard against the * * * overzealous prosecutor” by providing an accused with the right to be tried by a jury of his peers. (Duncan v. Louisiana (1968), 391 U.S. 145,156, 20 L. Ed. 2d 491, 499, 88 S. Ct. 1444,1451.) The right to a peer jury is effectively diminished in any case if the overzealous prosecutor is able by affirmative means to systematically exclude available and otherwise competent blacks from the jury solely because they are blacks. Cf. Peters v. Kiff (1972), 407 U.S. 493, 504-05, 33 L. Ed. 2d 83, 94-95, 92 S. Ct. 2163, 2169-70.

We next look to the role of the court itself in a criminal trial because the significance of a criminal trial goes beyond the truth or falsity of the accusation. A criminal trial is in reality a public event. (Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 593, 65 L. Ed. 2d 973, 1000, 100 S. Ct. 2814, 2826 (Brennan, J., concurring).) The trial includes the ceremonial or ritual aspect, the appearance of justice, and the role of a free people in passing judgment. Thus, the whole society is represented at a criminal trial. That is why, with rare exception, criminal trials must be open to the public. See Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 581, 65 L. Ed. 2d 973, 992, 100 S. Ct. 2814, 2830; see also Taylor, 419 U.S. 522, 530, 42 L. Ed. 2d 690, 698, 95 S. Ct. 692, 697; Younger, Unlawful Peremptory Challenges, 7 A.B.A. J. Litigation 23, 24 (1980).

If we are going to insist, and we must, that criminal trials be open to the public, we must be ever solicitous that those in attendance witness a system of justice in its truest sense and not a system of de facto racial discrimination. In this regard, we, as judges and defenders of our legal system, can ill afford to delude ourselves into believing that those in attendance at a criminal trial do not appreciate the difference between trial tactics used primarily to seek justice and racially discriminatory trial tactics used solely to convict. When by affirmative means blacks are systematically excluded from serving on a petit jury solely because they are blacks, the harm is not restricted to the defendant. There is also harm to the jury system, to the excluded jurors, to the community at large, to the law as an institution, and to the democratic ideal reflected in the processes of our courts. Cf. Ballard v. United States (1946), 329 U.S. 187, 195, 91 L. Ed. 181,186, 67 S. Ct. 261, 265.

Thus, we must bear in mind that a criminal trial is more than merely a means of meting justice. The trial is also an avenue for fulfilling the notion deeply rooted in the common law that “justice must satisfy the appearance of justice.” (Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 594, 65 L. Ed. 2d 973, 1001, 100 S. Ct. 2814, 2827 (Brennan, J., concurring), quoting Levine v. United States (1960), 362 U.S. 610, 616, 4 L. Ed. 2d 989, 995, 80 S. Ct. 1038,1042.) Plainly, the appearance of justice is not fulfilled if the trial court acquiesces in, condones or fails to preclude attempts by the prosecuting attorney to exclude blacks from the jury solely because they are blacks. The trial court cannot sit idly by in such instances, because it has a duty to see that the appearance of justice is demonstrated in the criminal trial that is taking place before those in attendance. The fundamental concepts of our society and our system of laws and government demand no less.

In this regard, when it reasonably appears to the trial court that the prosecuting attorney is systematically excluding blacks from the jury solely because they are blacks, any trial procedure which allows such racial discrimination must yield to the paramount constitutional demand of the sixth amendment. Specifically, at this point, the rule that no reason need be given for a peremptory challenge must give way to the constitutional imperative. The statute allowing peremptory challenges (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4(e)) is “not invalid on its face, but in these limited circumstances it would be invalid as applied if it were to insulate from inquiry a presumptive denial of the right to an impartial jury.” (See People v. Wheeler (1978), 22 Cal. 3d 258, 281 n.28,583 P.2d 748, 765 n.28, 148 Cal. Rptr. 890, 906 n.28.) The constitutional demand must control because the State’s peremptory challenge is a statutory procedure and not a constitutional necessity (Stilson v. United States (1919), 250 U.S. 583, 586, 63 L. Ed. 1154, 1156, 40 S. Ct. 28, 29-30) or even a common law imperative. When a constitutional right conflicts with a statutory procedure, the constitutional right must prevail. (Swain v. Alabama (1965), 380 U.S. 202, 244, 13 L. Ed. 2d 759, 786, 85 S. Ct. 824, 848 (Goldberg, J., dissenting).) No State is at liberty to impose upon one charged with a crime a discrimination in its trial procedure which the Constitution forbids. Peters v. Kiff (1972), 407 U.S. 493, 506, 33 L. Ed. 2d 83, 95, 92 S. Ct. 2163, 2170 (White, J., concurring), quoting Hill v. Texas (1942), 316 U.S. 400, 406, 86 L. Ed. 1559, 1563, 62 S. Ct. 1159, 1162.

Accordingly, we hold that when it reasonably appears to the trial court, either by its own observation or after motion by the defendant, that the prosecuting attorney is using peremptory challenges to systematically exclude blacks from the jury solely because they are blacks, the court should require the prosecutor to demonstrate, by whatever facts and circumstances exist, that blacks were not being systematically excluded from the jury solely because they were blacks. At this stage, the burden of demonstrating that the Constitution was not being violated is upon the prosecution. Also, at this stage, the trial court should not employ any presumption that the Constitution is not being violated. Once it reasonably appears to the trial court that the accused is being affirmatively denied an impartial jury as required under the sixth amendment, there is no reason to presume that the State is not affirmatively violating the accused’s constitutional entitlement.

If the trial court finds that as to any of the questioned challenges the State has not sustained its burden of demonstrating that it was not excluding blacks from the jury solely because they were blacks,* *** the court must then conclude that the jury as constituted at that point fails to comply with the fair cross section requirement of the Constitution, and it must dismiss the jurors thus far selected. Also, it must quash any remaining venire, since the accused is entitled to a random draw from an entire venire, not one that has been partially or totally stripped of a cognizable group by unconstitutional means. Upon such dismissal, a different venire should be drawn and the jury selection process may begin again. Commonwealth v. Soares (1979), 377 Mass. 461, 491, 387 N.E.2d 499, 518; People v. Wheeler (1978), 22 Cal. 3d 258, 282, 583 P.2d 748, 765, 148 Cal. Rptr. 890, 906.

In the present case, the State contends that “if the prosecution did use its peremptory challenges to exclude blacks, such use is permissible.” The State defends this pernicious practice by relying upon Swain v. Alabama (1965), 380 U.S. 202,13 L. Ed. 2d 759, 85 S. Ct. 824. In Swain, the opinion of the court held that the striking of blacks from the jury in that case, a State criminal trial, did not violate the equal protection clause of the fourteenth amendment of the United States Constitution. The opinion states: “The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.” (380 U.S. 202, 222, 13 L. Ed. 2d 759, 773, 85 S. Ct. 824, 837.) The practice of removing blacks from the jury in that case was found insulated from inquiry “on the assumption that the prosecutor is acting on acceptable considerations related to the case he is trying, the particular defendant involved and the particular crime charged.” (380 U.S. 202, 223, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 837.) However, the court stated that it would consider an equal protection challenge to that procedure in some circumstances. The equal protection challenge might occur when “in case after case” the prosecutor “is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries.” (380 U.S. 202, 223, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 837.) The opinion of the court in Swain also states: “The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control.” (380 U.S. 202, 220, 13 L. Ed. 2d 759, 772, 85 S. Ct. 824, 836.) However, later in the opinion, the court states: “[If] it would appear that the purposes of the peremptory challenge are being perverted 0,6 the presumption protecting the prosecutor may well be overcome.” (380 U.S. 202, 224, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 838.) It follows that the court in Swain recognized that peremptory challenges could be controlled by the trial court if it appeared to the trial court that they were being used to violate the constitutional rights of the accused.

It has been almost 18 years since Swain was decided. During that time, two cases have been decided by the United States Supreme Court which we believe cause the present case and similar cases to be distinguished from Swain. In 1968, the court held, for the first time, that the sixth amendment of the Constitution of the United States as it relates to jury trials applies to State criminal trials. (Duncan v. Louisiana (1968), 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444.) Seven years later, the court decided Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692. In Taylor, the court stated: “The background against which this case must be decided includes our holding in Duncan v. Louisiana [citation] that the Sixth Amendment’s provision for jury trial is made binding on the States.” (419 U.S. 522,526,42 L. Ed. 2d 690,696,95 S. Ct. 692, 696.) The Taylor court then held: “We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation.” (419 U.S. 522, 530, 42 L. Ed. 2d 690, 698, 95 S. Ct. 692, 697-98.) In reaching its decision, the Taylor court reviewed and relied upon cases that arose subsequent to Swain. For example, the court discussed Carter v. Jury Com. (1970), 396 U.S. 320,330, 24 L. Ed. 2d 549,558,90 S. Ct. 518, 524, noting that in Carter “the Court observed that the exclusion of Negroes from jury service because of their race ‘contravenes the very idea of a jury — “a body truly representative of the community”.’ [Citation.]” 419 U.S. 522, 528, 42 L. Ed. 2d 690, 696-97, 95 S. 692, 696.

We believe that Duncan and Taylor together have significantly changed the law from the time Swain was decided, vis-a-vis the sixth amendment right of an accused in a State trial to a jury drawn from a fair cross section of the community and the prohibition of the State’s affirmative frustration of that right. At the time Swain was decided, the sixth amendment had not yet been recognized as applicable to State criminal trials, and the accused’s sixth amendment right to a jury drawn from a fair cross section of the community and the prohibition of the State’s affirmative frustration of that right were neither raised nor discussed in Swain. Moreover, the fact that the law has changed in this area is demonstrated by the United States Supreme Court’s holding that “the Sixth Amendment right to a petit jury, made applicable to the States * * * in Duncan v. Louisiana [citation], does not apply to state trials that took place before the decision in Duncan.” Peters v. Kiff (1972), 407 U.S. 493,496, 33 L. Ed. 2d 83, 90, 92 S. Ct. 2163, 2165.

Accordingly, Swain does not apply to an accused’s right not to have the State affirmatively frustrate his sixth amendment right to a jury drawn from a fair cross section of the community, which is the constitutional issue underlying a decision in this case. We therefore apply Taylor and its rationale to this case rather than Swain, and we conclude that the sixth amendment precludes the State, i.e., the prosecuting attorney, from affirmatively frustrating the right of the accused to a jury drawn from a fair cross section of the community by utilizing peremptory challenges to exclude blacks from the jury solely because they are blacks.

The State’s position in the present case is untenable for additional reasons. The State argues that pursuant to Swain, the essential nature of the peremptory challenge is that it is never subject to the court’s control. We disagree. In Swain, the court stated that it would consider an equal protection challenge to the peremptory challenge if “the purposes of the peremptory challenge are being perverted.” (380 U.S. 202, 224,13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 838.) Thus, the Swain court recognized that peremptory challenges could be controlled by the trial court if it appeared to the trial court that they were being used to violate the constitutional rights of the accused. The State also argues that pursuant to Swain, peremptory challenges are without exception insulated from inquiry in each case because there is a presumption that the prosecutor is acting on acceptable terms. We disagree. In Swain, the court held that if the purposes of the peremptory challenge are being perverted, “the presumption protecting the prosecutor may well be overcome.” (380 U.S. 202, 224, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 838.) Here, we hold that when it reasonably appears to the trial court that the accused is affirmatively being denied an impartial jury as required under the sixth amendment, there is no reason to presume that the State is not affirmatively violating the accused’s constitutional entitlement.

The State also relies upon People v. Harris (1959), 17 Ill. 2d 446, 161 N.E.2d 809. Subsequent to Harris, the following cases were decided: People v. Butler (1970), 46 Ill. 2d 162, 263 N.E.2d 89, People v. Powell (1973), 53 Ill. 2d 465, 292 N.E.2d 409, People v. King (1973), 54 Ill. 2d 291, 296 N.E.2d 731, and People v. Gaines (1981), 88 Ill. 2d 342, 430 N.E.2d 1046. Harris is an alleged equal protection violation case. Butler is also an alleged equal protection violation case and was decided on the basis of Swain. Powell was decided on the basis of Swain. King was decided partly on the basis that the defendant moved to dismiss the jury after it had been selected and therefore the motion was filed too late. Also, the court in King based its decision on Swain and Butler. In Gaines, the court stated, “[T]he defendant did not raise this issue until all the jurors had been sworn. Moreover, he failed to make a record which would show that the veniremen who were peremptorily challenged by the State were black. Such a showing is required 9 9 9.” (88 Ill. 2d 342, 359, 430 N.E.2d 1046, 1054.) Significantly, all of these cases except Gaines, which is distinguished for other reasons, were decided prior to Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, and the sixth amendment was not discussed in any of them. Thus, we do not find these cases applicable for the same reason Swain is not applicable.

The State also relies upon the following appellate court cases: People v. Attaway (1976), 41 Ill. App. 3d 837, 354 N.E.2d 448, People v. Thornhill (1975), 31 Ill. App. 3d 779,333 N.E.2d 8, and People v. Fort (1971), 133 Ill. App. 2d 473, 273 N.E.2d 439. We have read and reviewed each of these cases and similar appellate court cases, including People v. Belton (1982), 105 Ill. App. 3d 10, People v. Mims (1981), 103 Ill. App. 3d 673, 431 N.E.2d 1126, People v. Lavinder (1981), 102 Ill. App. 3d 662, 430 N.E.2d 243, People v. Clearlee (1981), 101 Ill. App. 3d 16, 427 N.E.2d 1005, People v. Vaughn (1981), 100 Ill. App. 3d 1082,427 N.E.2d 840, People v. Tucker (1981), 99 Ill. App. 3d 606,425 N.E.2d 511, People v. Allen (1981), 96 Ill. App. 3d 871, 422 N.E.2d 100, People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029, People v. Smith (1980), 91 Ill. App. 3d 523, 414 N.E.2d 1117, and People v. Fleming (1980), 91 Ill. App. 3d 99,413 N.E.2d 1330. In these cases, relief was denied either on the basis of an insufficient record or on the basis of Swain. Thus, they are distinguishable from the present case, where the record is sufficient and Swain is not applicable.

In this case, seven blacks were available to be seated as jurors during the voir dire. The prosecutor used peremptory challenges to exclude six of the blacks. After each black was excluded by the prosecutor, defense counsel objected, protesting that the prosecutor was systematically excluding blacks solely because they were blacks. Each objection was summarily overruled. After the prosecutor had excluded six of the blacks and after defense counsel objected each time that the prosecutor was systematically excluding the blacks solely because they were blacks, the prosecutor allowed the remaining black to become a juror. In total, the prosecutor exercised eight peremptory challenges. Six of the eight challenges were used to eliminate six of the seven blacks.

The record establishes that the blacks who were excluded are factually heterogeneous. The information relating to their background appears in the record by virtue of the trial court’s questioning of the prospective jurors as to their name, address, occupation, marital status, whom they lived with, whether they had children or siblings, length of time at their current employment, whether they had ever been the victim of a crime and whether they had any connection with law enforcement.

The record further evinces that as compared to the jurors who were seated, the single distinguishing characteristic that the excluded blacks shared is their race. This becomes plainly evident when the factual backgrounds of the excluded blacks are compared with those of the jurors who were seated. On appeal, the State argues that since the excluded blacks were not married, they had a distinguishing characteristic other than their race. However, during oral argument, the attorney representing the State on appeal admitted that he discovered that fact for the first time only after he screened the appellate court record very carefully while especially looking for some common element relating to the excluded blacks. Moreover, two of the jurors who were seated were also unmarried, but they were not blacks. We conclude that the State’s contention on this point is implausible and clearly untenable.

The State also argues that because one black was seated on the jury the State did not affirmatively deny defendant a fair cross section of the community on the jury. This argument is unavailing because this case involves the exclusion of all the black jurors by the State before the last available black juror was allowed to be seated. Systematic and affirmative racial exclusion of available black jurors by the State which results in only one black being seated as a juror is no less evil and no less constitutionally prohibited than the same procedure which results in the total exclusion of blacks. We are not unmindful that some attorneys may leave a token black on the jury after they are assured that there are no more blacks available to be seated. This type of practice does not lessen the unconstitutionality of the State’s initial exclusion of blacks from the jury solely because they were blacks.

Plainly, the facts and circumstances in this case demand the conclusion that it should have reasonably appeared to the trial court that the prosecutor was using peremptory challenges to systematically exclude blacks from the jury solely because they were blacks. At that stage, the trial court should have required the prosecutor to demonstrate, by whatever facts and circumstances existed, that blacks were not systematically excluded solely because they were blacks. The failure of the trial court to impose such a requirement on the prosecutor at that stage was error, and the error is of such magnitude that the convictions must be reversed and the case remanded for a new trial. There are some constitutional rights so fundamental to a fair trial that when they are violated the transgression cannot in good conscience be labeled harmless. The right to a fair and impartial jury as guaranteed by the sixth amendment, which includes the right to a jury drawn from a fair cross section of the community and the corresponding right not to have the State affirmatively frustrate that entitlement, is one of those rights.

Accordingly, the convictions are reversed, and the case is remanded for a new trial.

Reversed and remanded.

WHITE, P. J., and McGILLICUDDY, J., concur.

       Defendant also contends that the State failed to prove him guilty beyond a reasonable doubt. We have decided that issue this same day pursuant to Supreme Court Rule 23 (88 Ill. 2d R. 23).

       We intend that our holding and the principles which we apply in this case be applicable to any discrete group which may be the subject of the kind of discrimination discussed here. E.g., Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692 (systematic exclusion of women from jury panels); Hernandez v. Texas (1954), 347 U.S. 475, 98 L. Ed. 866, 74 S. Ct. 667 (systematic exclusion of Mexicans from service as jurors); Commonwealth v. Soares, 377 Mass. 461, 489 n.35, 387 N.E.2d 499, 517 n.35 (“The attempt1 " ’to strike all veniremen of Italian descent from the jury would ° * * fall within this area of prohibited practice. Cf. Commonwealth v. Graziano, 368 Mass. 325, 331 N.E.2d 808 (1975)”); People v. Kagan (1979), 101 Misc. 2d 274,420 N.Y.S.2d 987 (under trial court ruling, if prosecutor systematically excludes Jewish prospective jurors solely because they are Jewish, it would deprive Jewish defendant of his right to a trial by his peers).

       To determine whether justice is being sought, we must bear in mind that “the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.” Taylor v. Louisiana (1975), 419 U.S. 522, 528, 42 L. Ed. 2d 690, 697, 95 S. Ct. 692, 697.

       We note that in 1305 in England, the Crown’s right to peremptory challenge was abolished. (33 Edw. 1. c.2 (1305).) Since that time, peremptory challenges may be exercised only by the defendant. Also, since 1305, except for challenges for cause, the Crown can only require jurors whom it wishes to challenge to stand aside from the panel until the defendant has exercised all his challenges. Then, if a jury has not been selected, the jurors who have stood aside will be used unless the Crown can challenge them for cause. (Swain v. Alabama (1965), 380 U.S. 202, 243 n.4,13 L. Ed. 2d 759, 785 n.4, 85 S. Ct. 824, 848 n.4 (Goldberg, J., dissenting).) Specifically, 26 Halsbury’s Laws of England, par. 626 (4th ed. 1979), provides:
      “The Crown may challenge for cause only, but may also direct any person whose name is called to stand by until the panel has been called over and exhausted, and will not be put to assign cause until it appears that there will not be a full jury without recourse to that person.”
      It should be noted that the procedure of having a juror stand aside is not a peremptory challenge because, even when the procedure is employed by the Crown, which is seldom, the juror who has been stood aside may be actually seated as a juror after the defendant has exercised all his challenges. Specifically, 26 Halsbury’s Laws of England, par. 624 (4th ed. 1979) states: “The Crown has no right to make peremptory challenges.”
      This historical analysis is significant- here because in 1819, at the first legislative session, Illinois adopted as its laws the common law of England and all acts of Parliament (with three exceptions not relevant here) as they existed prior to the fourth year of James the First (March 24,1606-March 23,1607). (Hardesty v. Mitchell (1922), 302 Ill. 369,371,134 N.E. 745, 746; Lasier v. Wright (1922), 304 Ill. 130,135,136 N.E. 545,546-47; see Ill. Rev. Stat. 1979, ch. 1, par. 801; Ill. Ann. Stat., ch. 1, par. 801, Historical Note, at 27 (Smith-Hurd 1980).) Since peremptory challenges by the Crown were abolished in 1305, peremptory challenges by the State were not part of the common law of Illinois as adopted from England, but rather were statutorily created, and today they are allowed solely as a statutory privilege. (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4(e).) Thus, the State’s right to make peremptory challenges in Illinois is neither a common law imperative nor a constitutional right.

       Although decisions of this nature are difficult, we are convinced that trial judges, given their presence in the courtroom during the entire proceeding and their ability to observe all facets of the voir dire selection, their experience with voir dire examinations, and the benefit of their judicial trial experience, should be able to distinguish bona fide reasons for exclusion from contrived declarations of motives. Moreover, if errors are made in this regard, they are subject to review as are other errors that occur during trial.

       We note that there is no valid double jeopardy claim which a defendant may raise after such a declaration of mistrial. See Crist v. Bretz (1978), 437 U.S. 28,38,57 L. Ed. 2d 24,33,98 S. Ct. 2156, 2162 (no jeopardy attaches until the jury is empaneled and sworn); People v. Shields (1979), 76 Ill. 2d 543, 546, 394 N.E.2d 1161,1163; see also Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4(a)(3).

       Four Justices joined in the opinion of the court, and two Justices specially concurred; Justice Goldberg dissented, with Chief Justice Warren and Justice Douglas joining in the dissent.

       We note, as a point of information only, what is stated in Commonwealth v. Soares (1979), 377 Mass. 461,476-77 n.11, 387 N.E.2d 499,510 n.11: “Since its release in 1965, Swain has been the subject of extensive and biting criticism. [Citations.]”

       Plainly, different factors and considerations are used to determine whether one’s constitutional right to a jury drawn from a fair cross section of the community has been violated (Taylor) and whether one’s constitutional right to equal protection has been violated (Swain; see generally Karasik, Equal Protection of the Law Under The Federal and Illinois Constitutions: A Contrast In Unequal Treatment, 30 De Paul L. Rev. 263 (1981)). On this point, Justice Holmes has characterized the equal protection argument as “the usual last resort of constitutional arguments,” reflecting its narrow appeal to the courts. Buck v. Bell (1927), 274 U.S. 200, 208. 71 L. Ed. 1000.1002.47 S. Ct. 584. 585.

       In the present case, defendant is black. However, it is not necessary that the defendant belong to the excluded identifiable group in order to challenge the State’s action. In Taylor, the State insisted that the defendant, a male, had no standing to object to the State’s affirmative and systematic exclusion of women from the jury. The court held that because women were affirmatively and systematically excluded from the jury by the State, the male defendant was deprived of his constitutional right to a trial by a fair cross section of the community. (419 U.S. 522, 533, 42 L. Ed. 2d 690, 699, 95 S. Ct. 692, 699.) In Peters v. Kiff (1972), 407 U.S. 493,33 L. Ed. 2d 83,92 S. Ct. 2163, the defendant was white. His conviction was reversed, and the case was remanded to determine whether the State had affirmatively and systematically excluded blacks from the jury. The court stated: “When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.” 407 U.S. 493,503-04,33 L. Ed. 2d 83, 94, 92 S. Ct. 2163, 2169.

       We have not set forth the factual comparison because to do so would lengthen the opinion needlessly.


author: PRESIDING JUSTICE JOHNSON

text:
    LA GRANGE METAL PRODUCTS, Plaintiff-Appellee and Cross-Appellant, v. PETTIBONE MULLIKEN CORPORATION, Defendant-Appellant and Cross-Appellee.
    First District (4th Division)
    No. 81-415
    Opinion filed May 20, 1982.

      Robert H. Joyce and Hyman K. Bielsky, both of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellant.
    William J. Harte, of Chicago (William T. Rodeghier, of counsel), for appellee.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Pettibone Mulliken Corporation (Pettibone), appeals a judgment in a contract action granting damages in the total amount of $130,522.12 to plaintiff, La Grange Metal Products (La Grange), on counts I, III and IV and the award of prejudgment interest to plaintiff on counts I and III. Plaintiff appeals the judgment for defendant on counts II and V and the denial of prejudgment interest on count IV. The following issues are raised for review: (1) whether the trial court abused its discretion in refusing to allow defendant to amend its answer; (2) whether the trial court erred in holding that the quotation letters were offers; (3) whether the judgment for plaintiff on counts I, III and IV is against the manifest weight of the evidence; (4) whether the trial court erred in entering judgment for defendant on counts II and V; (5) whether the evidence presented by plaintiff proved an account stated; and (6) whether the trial court properly awarded prejudgment interest.

We affirm.

La Grange is an Illinois corporation engaged in the business of producing and manufacturing metal products, including metal beams and castings. Pettibone is a foreign corporation doing business in Illinois. Plaintiff filed a complaint against defendant alleging as follows:

Count I. In a letter dated May 2, 1966, plaintiff quoted part number A-3543 beam at $295 for 100 to 200 pieces, and $108 for 200 to 300 pieces. In a purchase order dated May 12, 1966, defendant ordered 200 pieces. Its purchase order listed the unit price as $108. Plaintiff processed 150 pieces.
Count II. In a letter dated November 3, 1966, plaintiff quoted part number A-3542 beam at $380 for 100 to 200 pieces, and $135 for 200 to 300 pieces. In a purchase order dated November 15, 1966, defendant ordered 240 pieces. Defendant’s purchase order listed the unit price as $135. A line was drawn through the $135 and $115 was written underneath with the date May 9, 1967. Plaintiff processed 111 pieces.
Count III. In a letter dated May 2, 1966, plaintiff quoted part number AA-45255 castings at $904 for 51 to 100 pieces, $436 for 100 to 200 pieces, and $195 for 200 to 300 pieces. In a purchase order dated May 12, 1966, plaintiff ordered 200 pieces. Its order listed $195.50 as a tentative unit price. Plaintiff processed 62 pieces.
Count IV. In a letter dated May 2, 1966, plaintiff quoted part number A-3269 cover castings at $1,580 for 10 to 25 pieces. Defendant’s original purchase order was dated May 12, 1966, and 212 castings were ordered. The figure 182 was crossed out and the unit price of $239 was written under it. In a corrected order dated September 21,1966, defendant reduced the quantity to 15. Plaintiff processed 17 items.
Count V. In a letter dated February 17, 1967, plaintiff quoted part number A-3543 beam at $1,496 for 10 to 25 pieces, and $185 for 200 to 300 pieces. In a purchase order dated February 9, 1967, defendant ordered 240 pieces. Typed under “unit price” was “advise price.” Written underneath this was $185 ea., H.F.G. told A.G. $135.” Plaintiff processed 25 items.

In all counts, plaintiff alleged that defendant had failed to pay the amounts owing and prayed for damages plus interest.

In its answer, defendant admitted that plaintiff quoted certain prices but denied that the prices quoted were as alleged. Pettibone also admitted shipping certain items to La Grange but denied that the items were subject to the prices alleged. Defendant further alleged that it paid certain sums in full payment.

Testimony at trial established the following.

Frank Greene, president of La Grange, testified that in April 1966 he visited with officers of Pettibone, Mr. Cavender and Mr. Slokum. They knew that Greene had farmed out work to Madden Machine Company and they wanted him to secure parts machined for them by Madden. During this conversation, Greene called David Madden.

Three or four days after this meeting, Greene sent price quotations to Pettibone. At trial, Greene explained that the more parts machined, the less the price per part. Greene never received any objections to the price quotations. When asked about count II, Greene said that the $115 written underneath the unit price looked like his writing, but he was not positive that it was his handwriting. Greene also testified that during their relationship, Pettibone requested either more or less machining and that the unit price was either increased or reduced.

David Madden testified that he sent price quotations to La Grange on May 2, 1966. He performed the work for Pettibone through La Grange.

After the castings were machined but before they were shipped, they were checked by an inspector from Pettibone. Madden never received any complaints about the timeliness of delivery and never received any complaints about or rejections of the castings. In his opinion, the castings were machined properly. Madden rejected castings delivered to him for machining in a defective condition. On cross-examination, Madden said that Pettibone did not pick up castings which were not machined or not completely machined.

Thomas M. Cavender, a vice-president of Pettibone, did not recall receiving price quotations from Greene and did not recall what unit prices were discussed. He said that he had no discussion with Greene about pricing on a graduated basis. The discussion was to establish only one price on machining the castings.

Cavender said the parts furnished under count I were poor in quality and had to be returned. Plaintiff noted that there was no affirmative defense of nonperformance or failure to perform the contract. The trial court held that the only bone of contention was the rate to be charged and that plaintiff had proved an account stated. The defense made an offer to prove that plaintiff did not perform the contract, which the court denied on the grounds of surprise. The court also denied defendant’s motion to amend its pleadings to state that the parts were not machined properly.

With regard to count III, Cavender testified that the pieces were not machined properly; that as a consequence, Greene and Pettibone agreed to cut the price in half. Defendant introduced into evidence invoices purporting to show that Greene had accepted one-half of the total. They were signed “Frank Green.” Greene denied that the signatures were his.

Ronald P. McGovern, a certified public accountant, was controller for Pettibone from 1967 to 1976. He testified that he told Harvey Bass of La Grange in February 1970 that Pettibone owed no money to La Grange.

Wanda Larson testified for defendant. She had been employed by Greene from about 1968 or 1969 through 1970. In late 1968 or early 1969, she was asked to assemble documents of Pettibone that were in Greene’s files. Larson organized and copied the files which consisted of invoices from the Madden company which had been sent to Pettibone. Subsequently, Larson saw Greene’s wife prepare documents quoting prices for transactions between La Grange and Pettibone. Larson identified quotation letters dated May 2,1966, November 3,1966, and February 17,1967, as having been typed by Greene’s wife in 1969. Larson admitted that when she left employment with Greene, he had accused her of stealing and telling lies to suppliers and customers.

At the end of this bench trial, the court found that Larson’s testimony was incredible because she demonstrated by her appearance on the stand an intense hatred for plaintiff. The court found that the quotation letters from Greene were the only credible evidence. It accepted Greene’s contention that he did not sign the invoices purporting to compromise the price for parts included under count III. The court found for plaintiff on counts I, III and IV and awarded interest on counts I and III. The court found for defendant on counts II and V because there was a material change in the amount of work done and the court refused to guess at damages. Defendant appeals the judgment for plaintiff on counts I, III and IV and the award of prejudgment interest. Plaintiff appeals the judgment for defendant on counts II and V and the denial of prejudgment interest on count IV.

The first issue raised by this appeal is whether the trial court abused its discretion in refusing to allow defendant to amend its answer. In its complaint, plaintiff alleged that it processed a certain number of pieces and that defendant failed to pay the amounts owing. Defendant’s answer admitted that plaintiff shipped the items but denied that they were subject to the prices alleged. At trial, when defendant attempted to defend on the grounds of nonperformance, the trial court stated: “I see no issues raised in the pleadings as to nonperformance ” * The court refused to allow defendant to amend its answer to deny that the pieces were machined properly.

The power to aHow amendments should be freely used so that a party may fuUy present his case. Despite this extensive freedom, a party has no absolute right to amend his pleading. It is for the trial court to decide in the exercise of its sound discretion whether to allow a proposed amendment. (Banks v. United Insurance Co. of America (1975), 28 Ill. App. 3d 60, 64, 328 N.E.2d 167, 170.) The determining factor for overruling a judge’s disallowance of a motion to amend must be found in a clear abuse of his discretion, considering the facts and circumstances of the case and the impact upon all the parties. M.C., Ltd. v. Colina (1977), 55 Ill. App. 3d 730, 734, 371 N.E.2d 145, 148.

We do not find that the trial court clearly abused its discretion in view of the facts and circumstances of the instant case. The cause of action arose in 1966, but the parties did not go to trial until 1980. Defendant sought to change the theory of the case from a dispute over contract price to nonperformance during the second day of trial on December 24, 1980. We note that the trial court did permit testimony by defense witness Cavender on the issue of plaintiff’s performance. With respect to count III, Cavender testified:

“And La Grange Metal Products and Madden Machine never could machine one piece properly. And we never received one piece on our purchase order of this particular part that was machined in accordance with the drawing.”

When asked about machining of parts under the other counts, the witness stated:

“CAVENDER: We had the same problems on the other parts, but not to the same degree that we did on this.
MR. JOYCE [attorney for defendant]: And were those agreements terminated or canceled, whatever, also?
CAVENDER: In the same fashion. Mr. Greene or Mr. Madden could not furnish the parts that we required to our prints and when we needed them. So we decided to cancel the order, terminate it, whatever the terminology is. And we picked up the tooling and the parts that were at Madden Machine and we finished them ourselves.”

The trier of fact heard evidence of nonperformance and rejected it. We do not believe that defendant was unfairly prejudiced by the determination of the trial court.

The next issue raised by this appeal is whether the trial court erred in holding that the quotation letters were offers. Defendant Pettibone cites Interstate Industries, Inc. v. Barclay Industries, Inc. (7th Cir. 1976), 540 F;2d 868, for the proposition that the quotation letters cannot be considered offers as a matter of law. Defendant misconstrues the law in that case. Whether a communication naming a price is a quotation or an offer depends upon the intention of the owner as it is manifested by the facts and circumstances of each particular case. (Interstate Industries, Inc. v. Barclay Industries, Inc. (7th Cir. 1976), 540 F.2d 868, 871.) Therefore, whether the letters were offers or invitations to deal was a question for the trier of fact to decide.

A court of review will not reverse the findings of a trial judge, sitting without a jury, who has seen and heard the witnesses, unless it is clear that such findings are palpably contrary to the evidence. (Quist v. Streicher (1960), 18 Ill. 2d 376, 380,164 N.E.2d 44,46.) Even if the reviewing court disagrees with the trial court, or might have come to a different conclusion, the decision of the trial court will not be reversed if there is evidence to support it. (Brown v. Zimmerman (1959), 18 Ill. 2d 94, 102, 163 N.E.2d 518, 523.) The trial court heard evidence from plaintiff’s witness Greene in support of the contention that the quotation letters were offers. Therefore, we hold that the trial court did not err in holding that the quotation letters were offers.

The next issues to be considered are whether the trial court’s judgments for plaintiff on counts I, III and IV and for defendant on counts II and V were proper.

Citing no authority, defendant argues that the judgment for plaintiff on counts I, III and IV is against the manifest weight of the evidence because the amounts underlying all the counts were changed after the quotation letters were mailed and because prices were frequently changed upon mutual agreement of the parties. Defendant’s argument is without merit. Defendant ignores the fact that the trial court found incredible Wanda Larson’s testimony regarding the quotation letters and that it also found no material alterations in the contracts underlying counts I, III and IV. Therefore, we hold that the trial court properly entered judgment in favor of plaintiff on counts I, III and IV.

Plaintiff cross-appealed on the theory that the trial court erred in entering judgment in defendant’s favor on counts II and V. The trial court found a material change in the quantity of work to be done on the contracts underlying counts II and V and refused to speculate that a higher unit price would be charged for less work. In the trial court’s opinion, plaintiff failed to prove the amount of damages on those counts. A party seeking damages must supply a reasonable basis for computation of those damages. (Ashe v. Sunshine Broadcasting Corp. (1980), 90 Ill. App. 3d 97, 101, 412 N.E.2d 1142, 1145.) Damages may not be predicated on mere speculation. (De Koven Drug Co. v. First National Bank (1975), 27 Ill. App. 3d 798, 802,327 N.E.2d 378, 380.) We note that plaintiff alleged in its exhibit 9 that it received certain amounts in partial payment of each of the five contracts. We hold, therefore, that the trial court properly entered judgment for defendant on counts II and V because plaintiff failed to prove the additional amounts owing for those counts.

The next issue raised by defendant Pettibone is whether the trial court erred in holding that plaintiff proved an account stated. Defendant overlooks the facts of the instant case. The trial judge did not find for plaintiff on the basis of an account stated; rather, he viewed plaintiff’s cause of action as in the nature of an account stated, saying, “I view this case as you might call it, I’ve called it accounts stated. Perhaps I’m incorrect as calling it accounts stated. It certainly was an agreement for specific work to be done at specific prices * °

An account stated is an agreement between parties who have had previous transactions of a monetary character that all the items of the accounts representing such transactions are true and that the balance struck is correct, together with a promise, express or implied for the payment of such balance. (Motive Parts Co. of America, Inc. v. Robinson (1977), 53 Ill. App. 3d 935, 938, 369 N.E.2d 119,122.) The meeting of the parties’ minds upon the correctness of an account is usually the result one party rendering a statement of account and the other party acquiescing thereto. (Motive Parts Co. of America, Inc. v. Robinson (1977), 53 Ill. App. 3d 935, 938.) The form of acquiescence is immaterial, and the meeting of minds may be inferred from the conduct of the parties and the circumstances of the case. Where a statement of account is rendered by one party to another and is retained by the latter beyond a reasonable time without objection, the retention of the statement of account without objection within a reasonable time constitutes an acknowledgment and recognition by the latter of the correctness of the account and establishes an account stated. Motive Parts Co. of America, Inc. v. Robinson (1977), 53 Ill. App. 3d 935, 939.

Assuming arguendo that the above-quoted statement constituted a finding, the existence of an account stated is a fact question. (Motive Parts Co. of America, Inc. v. Robinson (1977), 53 Ill. App. 3d 935, 940.) Since a bench trial was conducted, the issue was properly resolved by the court sitting as the finder of fact. (Motive Parts Co. of America, Inc. v. Robinson (1977), 53 Ill. App. 3d 935, 940.) We are not prepared to hold that this finding is against the manifest weight of the evidence.

In support of its position, defendant further argues that in finding the existence of an account stated, the trial court improperly relied on plaintiff’s exhibits 8 and 9, which consisted of a transmittal letter from plaintiff’s attorney dated February 9, 1970, and a table summarizing the amounts owed plaintiff on the contracts. But, the trial court admitted these exhibits only for the limited purpose of aiding it in the computation of plaintiff’s damages. We find, therefore, that the trial court did not improperly rely on plaintiff’s exhibits 8 and 9.

The final issue raised by this appeal is whether the trial court properly awarded prejudgment interest. In its order, the trial court awarded interest from June 1,1971, on counts I and III but not on count IV. Section 2 of “An Act in relation to the rate of interest and other charges in connection with sales on credit and the lending of money” (Ill. Rev. Stat. 1979, ch. 74, par. 2) provides in pertinent part:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any * * * instrument of writing; * * * on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; * * * and on money withheld by an unreasonable and vexatious delay of payment.”

A written contract for the sale of goods is a “ ‘written instrument’ ” within the meaning of the statute. (Servbest Foods, Inc. v. Emessee Industries, Inc. (1980), 82 Ill. App. 3d 662, 677, 403 N.E.2d 1, 13.) The written contract must include some provisions concerning price so that the amount due under the contract will be fixed or determinable. The amount must be due in the sense that a debtor-creditor relationship has come into being in order to warrant prejudgment interest. Prejudgment interest will be granted although a good faith defense exists and even where the claimed right and the amount due require legal ascertainment. (Servbest Foods, Inc. v. Emessee Industries, Inc. (1980), 82 Ill. App. 3d 662, 677.) In the present case, the amount due was capable of easy and exact computation once the court determined that the quotation letters and purchase orders constituted offer and acceptance. The court found that there was no material alteration in the contracts underlying counts I, III and IV and that the prices listed in the quotation letters were the contract prices.

We note that this case involved five contracts which were entered into by the parties in 1966 and 1967. The unit price for machining varied according to the number of parts to be machined. The case was not tried until December 1980. The determination of this case depends largely upon the facts in the record. In such situations, the finding and judgment of the trial court in nonjury cases will not be disturbed by the reviewing court, if there is any evidence in the record to support such findings. (Brown v. Zimmerman (1959), 18 Ill. 2d 94, 102, 163 N.E.2d 518, 523.) Where the trial court has seen and heard the witnesses and the testimony is contradictory, this court will not substitute its judgment as to the credibility of witnesses for that of the trial court, and we will not disturb the findings unless they are manifestly against the weight of the evidence. Brown v. Zimmerman (1959), 18 Ill. 2d 94, 102.

After a careful examination of the record here, we are satisfied the judgment is amply supported by the evidence and substantially free of error. We, therefore, affirm the judgment.

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

Affirmed.

LINN and ROMITI, JJ., concur.


author: PRESIDING JUSTICE STAMOS

text:
    THE VILLAGE OF SCHAUMBURG, Plaintiff-Appellant, v. KINGSPORT VILLAGE, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 81-1634
    Opinion filed May 25, 1982.

      Jack M. Siegel, of Chicago, for appellant.
    Schwartz, Ginsberg & Meister, of Chicago, for appellees Kingsport Village, Inc. and Nathan Green.
    Marks, Katz, Randall, Weinberg & Blatt, of Chicago, for appellee Ridge Development Corporation.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This cause consists of two actions brought in equity by the Village of Schaumburg (the Village) against Kingsport Village, Inc., and Ridge Development Corporation, both of which are residential housing developers. The Village sought to compel the two developers to comply with certain provisions of the municipality’s building code. The Village’s amended complaints, which sought injunctions and specific performance, were dismissed by the trial court. The cases were heard together although they were not formally consolidated until entry of the dismissal orders. The Village appeals.

The Village’s amended complaints allege that Kingsport constructed at least 10 residences and Ridge at least 36 residences, all within the Village of Schaumburg, which violate provisions of the local building code relating to driveways and concrete work. The Village had previously filed suits under the building code seeking monetary damages for the violations. By the time the instant suits in equity were filed, the developers had transferred title to the subject properties to the individual homeowners. These homeowners were not named in the equity actions.

Under counts I and II of the amended complaints, the Village sought mandatory injunctions requiring the developers to repair and in some cases rebuild certain driveways and concrete areas so such driveways and concrete areas would comply with the Village’s building code. The Village based count III of its amended complaints on section 11 — 31—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 11 — 31—2), which permits municipalities in certain instances to apply for injunctions requiring compliance with the municipality’s ordinances. Under count IV, the Village sought specific performance of the representations the developers had made in their applications for building permits.

The developers filed similar motions to strike and dismiss the amended complaints. The motions were heard together.' Following submission of written memoranda and oral argument, the trial court dismissed the Village’s amended complaints. The court found that there was no authority in Illinois for a municipality to sue a contractor for the correction of work performed on behalf of one of its citizens. If sidewalks and driveways are not properly constructed, the Village’s action is against the property owner, not the contractor. While the owner may have a cause of action against the contractor, the Village may not substitute itself for the owner. The court also held that a building permit is not a contract between a village and a contractor but is “akin to a license to do certain things within the [village].” If those things are not done properly, the traditional remedy of fines is specifically made available in the local ordinances.

The court also held that while equity has authority to force compliance with safety codes, “all of those cases are cases where the city is suing the owner of the property.” Where a contractor has not complied with the codes, the city or village has “a wide array of weapons available, a suit in equity for a mandatory injunction, however, is not one of these weapons.” If the Village believes that the remedies set forth in the ordinances are inadequate, the ordinances should be amended. The court concluded that since the developers were not the owners of the properties in issue, there was no privity. Additionally, there was no emergency and the Village had an adequate remedy at law. The motions to dismiss the amended complaints were therefore granted.

The Village’s first contention on appeal is that the amended complaints should not have been dismissed because, according to the Village, it has the traditional right to seek a mandatory injunction against the developers to compel compliance with the Village’s building code. The Village’s next contention, which will be treated with the first, is that it has the right to secure equitable relief against building contractors who fail to comply with the municipality’s building code.

We find it unnecessary to discuss generally the scope and powers of equity courts. The basis for the trial court’s decision in the case at bar is that the developers (defendants) were not the owners of the subject properties at the time the mandatory injunctions were requested. The focus of this appeal is therefore whether the developers’ nonownership of the properties in issue should affect the right of the Village to seek mandatory injunctions compelling work to be done on those properties.

The Village has failed to cite any authority, nor have we uncovered any authority, which permits the issuance of a mandatory injunction against a nonowner of the property which is the subject of the injunction. The chief case relied on by the Village (City of Chicago v. Larson (1961), 31 Ill. App. 2d 450, 176 N.E.2d 675) merely held that a non-mandatory injunction could issue to prevent the resident manager of an apartment building from interfering with a city inspection of the building. The facts of the Larson case are critically different from the facts of the instant case. Here, the Village seeks to have nonowner developers, who have no control over the subject property, ordered to enter onto another’s property and repair allegedly faulty construction.

In McMechan v. Yenter (1922), 301 Ill. 508,134 N.E. 39, the plaintiffs in error sought a mandatory injunction ordering removal of a tile drain which allegedly damaged surrounding lands. The Illinois Supreme Court held that all parties having a substantial legal or beneficial interest in the subject matter of the litigation and who will be materially affected by the decree must be made parties to the litigation. (301 Ill. 508, 511.) The action there was remanded to the trial court because the plaintiffs in error failed to name the commissioner of highways, whose approval was required to remove the drain, as a party defendant. The court held that if the commissioner was not made a party defendant, the suit should be dismissed. 301 Ill. 508, 512; see Glickauf v. Moss (1974), 23 Ill. App. 3d 679, 683, 320 N.E.2d 132.

In the instant case, the owners of the property in question were not made parties to the suit. To claim that their presence is not necessary for the performance of the relief sought by the Village is untenable. It is on their properties that the Village seeks to have the repair and replacement work done. The Village’s contentions are without merit.

In addition to its claim for traditional equitable relief, the Village asserts that it has a statutory right to a mandatory injunction. Section 11 — 31—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 11 — 31—2) reads, in pertinent part:

“If the appropriate official of any municipality determines, upon due investigation, that any building or structure therein fails to conform to the minimum standards of health and safety as set forth in the applicable ordinances of such municipality, and the owner or owners of such building or structure fails, after due notice, to cause such property so to conform, the municipality may make application to the circuit court for an injunction requiring compliance with such ordinances or for such other order as the court may deem necessary or appropriate to secure such compliance.” (Emphasis added.)

The trial court found, and we agree, that the clear language of this statute restricts such equitable relief to actions against owners of property. The Village argues that the wording of the statute requires only that the owners be given notice of a failure to conform, and that the equitable relief can be sought against any appropriate party, even nonowners. We find the Village’s interpretation contrary to the plain meaning of the statute: if a property owner fails to conform his property to the applicable standards, a municipality may seek an injunction or other equitable relief against that owner in order to secure compliance.

In City of Chicago v. 934 Willow Building Corp. (1962), 36 Ill. App. 2d 72, 183 N.E.2d 572, the city brought an action pursuant to section 23 — 70.3 of the Revised Cities and Villages Act (Ill. Rev. Stat. 1959, ch. 24, par. 23 — 70.3) to deconvert certain property, alleging building and zoning violations. As with section 11 — 31—2 in the present case, section 23 — 70.3 permitted the city to seek an injunction “if the owner or owners fail to cause their property so to conform.” (36 Ill. App. 2d 72, 75.) Prior to the filing of the action in 934 Willow, the defendant (the original convertor of the property) conveyed the property to another corporation. The second corporation, which was in possession and control of the property, was not made a party to the deconversion action. The appellate court ruled that the action could not proceed without the current owner of the property being made a party defendant. The facts in the case at bar are strikingly similar. The owners of the properties, who were and are in possession and control of those properties, were not made parties to the actions, because of this, the trial court could not properly issue the mandatory injunctions sought by the Village.

The Village’s final contention on appeal is that the building permits were issued to the two developers based on their representations that the constructions, including the work on the driveways and concrete areas of the projects, would be completed in accordance with all applicable building ordinances. The Village argues that the developers’ breach of these representations gives rise to a cause of action for specific performance.

The existence of a clear, certain and unambiguous contract is a prerequisite to granting specific performance. (Milani v. Proesel (1958), 15 Ill. 2d 423,430,155 N.E.2d 38.) The Village’s assertion that the building permits and the applications for those permits constitute such contracts is without support. As the trial court stated, a building permit is more akin to a license to do certain things within a city. If the terms of the building permit are not complied with, the ordinances providing for the permits set out the remedies available, i.e., monetary fines. The Village’s contention is therefore without merit.

The trial court’s dismissal of the amended complaints, which fail to name the property owners as parties, is affirmed. This cause is remanded to the trial court to allow the Village to add the individual property owners as parties. If these property owners are not named as parties, the cause should be dismissed.

Affirmed; remanded with direction.

DOWNING and PERLIN, JJ., concur.