author: JUSTICE O’CONNOR

text:
    LAWRENCE K. JOSEPH, a/k/a Larry Joseph, et al., Plaintiffs-Appellants, v. LAKE MICHIGAN MORTGAGE COMPANY et al., Defendants-Appellees.
    First District (1st Division)
    No. 81-0137
    Opinion filed May 24, 1982.
    Rehearing denied June 22,1982.
    Robert Marks, of Marks, Marks and Kaplan, of Chicago, for appellants.

      James B. Rosenbloom, of Goldberg, Kohn, P. C., of Chicago, for appellee State Mutual Life Assurance Company of America.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Douglas M. Reimer, Michael J. Leech, and Stephen R. Swofford, of counsel), for appellee Lake Michigan Mortgage Company.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiffs, Lawrence K. Joseph, a/k/a Larry Joseph, and Leonard Miller, commercial real estate developers, brought this action against defendants seeking the return of a good faith deposit from State Mutual Life Assurance Company of America (State Mutual) and a brokerage fee from Lake Michigan Mortgage Company (Lake Michigan). Defendants State Mutual and Lake Michigan filed motions to dismiss plaintiffs’ amended complaint, which were granted. Plaintiffs appeal, contending that their amended complaint was sufficient to state a cause of action. We affirm.

A motion to dismiss admits as true all well-pleaded facts and attacks only the legal sufficiency of the complaint. (Ill. Rev. Stat. 1979, ch. 110, par. 45; Johnson v. Nationwide Business Forms, Inc. (1976), 41 Ill. App. 3d 128, 359 N.E.2d 171.) It admits neither legal conclusions nor conclusions of fact unsupported by allegations of specific facts upon which conclusions rest. (People ex rel. Scott v. Carriage Way West, Inc. (1980), 88 Ill. App. 3d 297, 410 N.E.2d 384, and cases cited therein.) Every intendment and fair inference is in favor of the pleadings and if under any aspect of the facts stated the plaintiffs could recover, the motion should be denied. Great Atlantic & Pacific Tea Co. v. LaSalle National Bank (1979), 77 Ill. App. 3d 478, 395 N.E.2d 1193.

During June 1976 plaintiffs made a written application for a long term end loan to Lake Michigan. A deposit of $10,000 was paid to Lake Michigan as an advancement on the fee it would earn if an end loan commitment was found and accepted. On October 26, 1976, plaintiffs accepted a commitment from State Mutual and made a good faith deposit of $45,000 to it on the commitment. Plaintiffs then paid the remaining $12,500 in fees due to Lake Michigan. Plaintiffs commenced negotiating an interim construction loan with a bank. This loan would be repaid with the proceeds of the end loan from State Mutual. In order to finalize the interim construction loan both plaintiffs and their prospective interim lender sought assurances from State Mutual that the initial disbursement from the end loan would be made unconditionally upon 100% completion of the buildings. State Mutual would confirm only that the initial disbursement would be made at the time of 100% completion if there was no breach of any existing leases. Plaintiffs allegedly could not secure the interim loan under these circumstances. They went elsewhere for an end loan commitment and instituted this action.

Plaintiffs’ amended complaint contains five counts. Counts I, II and V are directed towards State Mutual for the return of the good faith deposit of $45,000, while all five counts relate to Lake Michigan’s fee of $22,500. Count I sought relief for anticipatory breach of the commitment by State Mutual. Counts II and IV allege impossibility of performance, seeking relief based on grounds that the deposits retained by defendants constitute unjust enrichment, forfeiture or penalty. The basis for relief in count III is a breach of contract theory, alleging Lake Michigan did not obtain for plaintiffs the end loan contemplated by the loan application. Count V alleges, in a number of paragraphs, that there was no meeting of the minds and that mistake, unilateral or mutual, occurred.

The central allegation of each count revolves around the meaning of paragraph 8 of the end loan commitment with State Mutual. Paragraph 8 of the end loan commitment attached to the amended complaint provides in pertinent part:

“8. Disbursement of Loan. The Loan will be disbursed upon compliance by Borrower with the terms and provisions of this Commitment and with the following specific requirements:

(a) General Conditions. The Loan will be disbursed in two or three stages and, at each stage, the Borrower must satisfy the following general conditions:
(iv) there are no material defaults by any of the tenants and no uncorrected defaults by the lessor under any of the leases;
(b) Initial Disbursement. $1,820,000 will be disbursed if, prior to June 1, 1978, construction of the Improvements, in a good and workmanlike manner and in accordance with the Plans and Specifications, and including full finish to all tenant suites, is 100% complete and ready for occupancy and Borrower has satisfied all the general conditions listed above. * 6

Plaintiffs allege that the initial disbursement was to be made, unconditionally, no later than “the time the buildings were 100 per cent completed.” Plaintiffs also allege the parties intended and understood the commitment would provide for such an initial disbursement. Defendants, on the other hand, assert that the initial disbursement is also subject to the conditions found in paragraph 8(a). Thus, they assert the initial disbursement would properly be made after the buildings were 100% completed and there were no defaults by any tenants. In fact, defendants argue that these requirements apply to each disbursement made under the commitment.

A contract is to be construed as a whole, giving meaning and effect to every provision thereof, if possible, since it is presumed that every clause in the contract was inserted deliberately and for a purpose. (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272,154 N.E.2d 683.) It is well established that the primary objective in construing a contract is to give effect to the intention of the parties involved. (Schek v. Chicago Transit Authority (1969), 42 Ill. 2d 362, 247 N.E.2d 886; Spircoff v. Spircoff (1979), 74 Ill. App. 3d 119, 392 N.E.2d 363.) The intention of the parties must be ascertained from the language employed in the instrument itself and where there is no ambiguity, from such language alone. Sharps v. Stein (1980), 90 Ill. App. 3d 435,413 N.E.2d 75; Gardiakos v. Vanguard Communications, Inc. (1976), 38 Ill. App. 3d 937, 350 N.E.2d 210.

The existence of an ambiguity is a question of law for the court. (See Hagerty, Lockenvitz, Ginzkey & Associates v. Ginzkey (1980), 85 Ill. App. 3d 640, 406 N.E.2d 1145; Gardiakos.) An ambiguous contract is one capable of being understood in more than one sense (State Security Insurance Co. v. Linton (1978), 67 Ill. App. 3d 480, 384 N.E.2d 718); an agreement is obscure in meaning through indefiniteness of expression or having double meaning (First National Bank v. Victor Comptometer Corp. (1970), 123 Ill. App. 2d 335, 260 N.E.2d 99). We find no such ambiguity exists. A review of the commitment in its entirety, and of paragraph 8 in particular, fails to reveal any provision which is fairly susceptible to more than one interpretation concerning the conditions upon which the initial disbursement is to be made. The whole of paragraph 8 clearly and unambiguously sets forth the requirements needed for the disbursement of the end loan. Section (a) of paragraph 8 sets forth five such general conditions, one of these being “no material defaults by any of the tenants.” Paragraph 8(b), specifically referring to the initial disbursement, unequivocally makes these general conditions a requirement for disbursal. Consequently, State Mutual properly under the contract refused to acknowledge plaintiffs’ interpretation of the commitment.

Plaintiffs contend that if defendants’ construction of the agreement is reasonable, then the agreement is ambiguous. Thus, they conclude, the intention of the parties must be garnered from extrinsic evidence of the circumstances surrounding the making of the agreement. (Decatur Lumber & Manufacturing Co. v. Crail (1932), 350 Ill. 319, 183 N.E. 228.) Although this is true of ambiguous language, a contract is not rendered ambiguous simply because the parties do not agree on its meaning. Harris v. American General Finance Corp. (1977), 54 Ill. App. 3d 835,368 N.E.2d 1099; Spircoff; Hagerty, Lockenvitz, Ginzkey & Associates.

As was stated in Saddler v. National Bank of Bloomington (1949), 403 Ill. 218, 228-29, 85 N.E.2d 733,740:

“What the parties to a written contract may have understood as to the meaning of the language used is not admissible in evidence. The intention or understanding of the parties, when there is a written contract in evidence, must be determined not from what the parties thought but from the language of the contract itself. [Citation.]
An agreement, when reduced to writing, must be presumed to speak the intentions of the parties who signed it. It speaks for itself, and the intention with which it was executed must be determined from the language used to express its intention. It is not to be changed by extrinsic evidence, as to how it was understood or what was intended. [Citations.]”

Plaintiffs additionally argue, in the alternative, that there was no meeting of the minds on the loan application to Lake Michigan, that unilateral mistake occurred and the commitment is impossible to perform if defendants’ construction of the terms is upheld. A subjective understanding of the parties, such as has been alleged by plaintiffs, does not show a lack of mutuality; it suffices that the conduct of the contracting parties indicates an agreement to the terms of the contract. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634.) The loan application, which is attached to the complaint, contains plaintiffs’ signatures and reveals that many changes in the wording were made. Such overt acts lead to a determination that mutual assent of the parties existed. Steinberg; see 1 Williston, Contracts sec. 22 (3d ed. 1957).

Plaintiffs’ theories of mistake are also inadequate to establish a cause of action. The mistake here is not one of fact, but one of law. A party may not avoid a contract fairly entered into because of a mistaken opinion of its legal effect. McCarthy v. McCarthy (1956), 9 Ill. App. 2d 462, 133 N.E.2d 763; In re Estate of McIlrath (1934), 276 Ill. App. 408; Holbrook v. Tomlinson (1922), 304 Ill. 579,136 N.E. 745.

Our construction of the commitment does not make it impossible to perform as plaintiffs suggest. The general conditions to the initial disbursement cannot be considered unduly restrictive to the securing of a construction loan. We note that in the loan application Lake Michigan agreed to provide a construction loan if requested to do so by plaintiffs.

We are not persuaded by plaintiffs’ contention that the amounts paid to defendants constitute a penalty or forfeiture. Lake Michigan earned its fee under the loan application when it obtained a commitment which was accepted by plaintiffs. The commitment was not improper in requiring a good faith deposit to be paid to State Mutual. It provides that if the loan was not timely closed the deposit will be kept by State Mutual as compensation for services rendered and the issuance of the commitment. Thus, the deposit amounted to an agreed fee in the event the commitment was not finalized and is not to be regarded as a penalty. See Hamming v. Murphy (1980), 83 Ill. App. 3d 1130, 404 N.E.2d 1026, appeal denied (1980), 81 Ill. 2d 592; Steel v. Peoples Oil & Gas Co. (1909), 147 Ill. App. 133.

For the reasons stated, the order of the circuit court of Cook County dismissing the amended complaint is affirmed.

Affirmed.

GOLDBERG and McGLOON, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STAMOS JUSTICE DOWNING,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ASHTON R. BARBOUR, Defendant-Appellant.
    First District (2nd Division)
    No. 81-1292
    Opinion filed May 25, 1982.

      DOWNING, J., concurring in part and dissenting in part.
    Howard T. Savage and George C. Howard, both of Chicago (Howard O. Edmonds, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Thomas A. Rieck, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Following a bench trial, defendant was convicted of rape and deviate sexual assault. Defendant was sentenced to seven years’ imprisonment on the rape conviction; the trial court did not impose sentence on the deviate sexual assault conviction. Defendant appeals.

Defendant is an attorney and was employed, at the time of the incident in question, as an assistant public defender in Cook County. The complainant is a 23-year-old speech therapist. The parties met when defendant introduced himself to the complainant on a downtown Chicago street. A few phone calls followed and the complainant agreed to a dinner date with defendant.

On the evening of July 13,1980, defendant picked up the complainant at her home on the south side of Chicago and the pair drove to a restaurant in Evanston. The complainant had one drink with dinner; defendant had three drinks. After dinner, they drove to a lagoon on the campus of Northwestern University. On the way to the campus, defendant stopped at a liquor store and bought a bottle of wine. The complainant testified that she suggested that defendant not buy the wine. The pah-proceeded to the Northwestern lagoon, where they sat on the grass and conversed. Defendant drank some of the wine he had purchased; the complainant had only a sip.

After about an hour, defendant tried to kiss the complainant. She pulled away and said, “Let’s go home.” At about 11 p.m., the parties returned to defendant’s car — a 1979 Toyota Célica coupe — and headed for the south side. Defendant stopped the car several times on the return trip. The first stop was in Evanston, where defendant pulled to the curb and resumed the conversation. After a short time, defendant began driving again. He stopped briefly near La Rabida Hospital on the south side. Defendant next stopped at a gas station where he used the men’s room. A few blocks later, defendant again pulled to the curb. By this time, they were in the complainant’s neighborhood. Defendant again tried to kiss the complainant and the complainant again resisted. She opened the car door and began to exit, telling defendant she would walk home, a distance of several blocks. The complainant testified that defendant responded, “Don’t be a fool,” and said he would drive her home. The complainant put her foot back in the car and closed the door.

Defendant then drove a short distance and pulled into an alley. When the complainant asked why he was stopping in the alley, defendant responded, “I like you. I like your background. I think you are beautiful. And you are irresistible. And I want some of your pussy.” The complainant said, “No. Oh, no,” and tried to open the car door. Defendant reached over and grabbed the complainant’s arm. After several demands that she disrobe, defendant began forcibly removing her clothing. During this struggle, defendant moved a lever and dropped the complainant’s seat back to the fully reclined position.

When his initial attempts to undress the complainant proved unsuccessful, defendant forced her to perform oral copulation. He did this by holding her by the hair and forcing her head onto his exposed penis while prying open her jaw with his hand. Defendant thereafter pushed the complainant back on the reclined seat and succeeded in removing her clothing, which consisted of a pullover blouse, a bra, a skirt, slip, and panties. Defendant got on top of the complainant, forced her legs apart, and performed an act of sexual intercourse. Complainant testified that she struggled and protested vocally throughout this episode.

After the intercourse, defendant returned to his side of the car. The complainant said, “I want to go home,” and defendant indicated that he would take her home. The complainant put on her blouse and skirt as defendant drove to a nearby gas station. There, defendant put gas in the car while the complainant collected her clothing and other items. The complainant testified that she considered reporting the rape to the gas station attendant but decided not to when she saw him conversing with defendant.

Defendant asked the complainant if she had to go to the bathroom but she declined, saying she preferred to wait until she got home. Complainant did not leave the car while at the gas station. Defendant then drove out of the station, went a short distance and turned into another alley. Complainant protested, saying she thought defendant was going to take her home. She also stated she had to go to the bathroom. Defendant allowed her to relieve herself. He escorted her from the car and, maintaining constant physical contact, watched as she relieved herself behind the car. He then led her back to the car, where he again forcibly removed her skirt. After failing in an attempt to remove the complainant’s blouse, defendant again grabbed the hair on her head and forced her head down on his penis. When he had completed this oral-genital contact, he pushed the complainant back onto the passenger seat and, when she continued to cry and plead, clapped his hand over her mouth. He then pulled her blouse off, forced her legs apart and performed a second act of sexual intercourse.

The car was parked at this time in an alley behind 7527 South Jeffrey. Curtis Hardaway III, a resident at that address, testified that he was awake at 2:30 a.m. on the morning of July 14 and heard what he thought was a baby crying in the alley. He also heard a female voice say, “Somebody help me.” Curtis called the police and awakened his parents, Curtis and Yvonne Hardaway. Curtis’ father, Curtis Hardaway, Jr., went on the back porch and called out, “What is going on?” or “Is everything all right?” He then walked toward the car he saw in the alley. Yvonne Hardaway followed.

After Curtis Hardaway called out from the back porch, defendant tried to start the car. The complainant opened the car door and attempted to exit. Defendant reached over and pulled the door shut while the complainant’s right foot was outside of the car. After a brief struggle, the complainant withdrew her foot and defendant closed the door. Defendant again attempted to start the car. While he was thus distracted, the complainant clambered out the window on the passenger side of the car. Mr. Hardaway testified that the car was just beginning to move when the complainant jumped out. The car moved a few feet before the engine died. Nude, the complainant ran toward Mr. and Mrs. Hardaway. Yvonne Hardaway testified, “I asked her did he rape her. She said, ‘Yes.’ And I asked her, did she know him? She said, ‘I thought I knew him.’ ”

The complainant asked Mr. Hardaway to get her clothing from the driver of the car. Hardaway went to the side of the car and took some articles of clothing from defendant. Mr. Hardaway noted that the passenger seat was in the fully reclined position and the driver’s seat was partially reclined. After defendant failed in his attempts to start the car, he got out of the car, nude from the waist down. According to Mr. Hard-away, defendant “slugged around” for two or three minutes before putting his pants on. The police arrived a few minutes later.

The complainant was taken to South Shore Hospital and examined by Dr. Dedra Young. Dr. Young’s report, admitted by stipulation, recited that the complainant denied physical injury and appeared to be “in a state of non-distress and alert.” The complainant testified that she didn’t report her ankle injury at the hospital because she was “still shook up, shocked.” Edward Stern, an assistant State’s Attorney assigned to the felony review unit, interviewed the complainant in the early morning on July 14. He testified that her ankle was bruised and swollen.

Defendant also testified. Needless to say, his account of the events in the two alleys differs from that of the complainant. Defendant stated that, in the first alley, the parties kissed and caressed and the complainant removed her own clothing and voluntarily engaged in sexual intercourse. After completing the act, defendant noticed that the complainant was crying. She said, “I didn’t want it to happen this soon.” Defendant then drove to a gas station and, after buying gas, drove into a second alley. Defendant there told the complainant, “I’d really like to make love to you again.” Defendant testified that the complainant voluntarily removed her clothing for the second time, but began crying before the two could undertake any sexual activity. The complainant told defendant that he didn’t respect her and would probably never see her again. When he heard a man call out from the porch of a nearby building, defendant tried to start the car. At this time, the complainant, still nude, left the car.

Defendant acknowledges that a single act of intercourse took place. He denies the use of force and denies that any oral intercourse occurred. He argues that the complainant left the car because she was upset and embarrassed at having been discovered under those circumstances. Defendant suggests that the complainant merely acquiesced in Yvonne Hardaway’s suggestion that a rape had occurred.

The State, in its case-in-chief, introduced evidence of two other alleged rapes committed by defendant. Over defendant’s objection, the State called two young women. Each testified that, on her first date with defendant, he forced her into an act of sexual intercourse. Both of the alleged rapes had occurred in defendant’s apartment. One incident occurred in August 1979 and the other in January 1978. Defendant admits to intercourse with both women but maintains the acts were consensual.

Defendant’s appellate brief contains several purported issues, which we find are reducible to two. Defendant maintains he was not proved guilty beyond a reasonable doubt and the trial court erroneously admitted evidence of the earlier alleged rapes.

There is no dispute as to identity and defendant admits that he had sexual intercourse with the complainant. The principal issue for the trier of fact was whether the complainant consented to the acts charged. The issue of consent (or lack thereof) is ultimately a matter of credibility, a question best left to the trier of fact who heard the evidence and saw the demeanor of the witnesses. (People v. Thompson (1978), 57 Ill. App. 3d 134, 141, 372 N.E.2d 1052.) A reviewing court will not upset the findings of the trier of fact unless the evidence, on the whole, is so unsatisfactory as to raise a reasonable doubt concerning the defendant’s guilt. People v. Thompson (1978), 57 Ill. App. 3d 134, 141.

Despite defendant’s contrary belief, we perceive no inherent improbability in the complainant’s story. The complainant agreed to go out with the defendant, knowing him to be an attorney and an assistant public defender. If the complainant’s testimony is believed, the first act of intercourse was forced and nonconsensual but the complainant was not injured and could have believed that defendant would not attack her again and would carry out his promise to take her home. The complainant’s decision not to flee the car at the gas station was unwise but not so unbelievable as to destroy her credibility. Complainant’s story is certainly no more improbable than defendant’s explanation of the complainant’s conduct in the second alley: that she ran nude from the car and into the arms of strangers because she was embarrassed at having succumbed to seduction so readily.

Defendant argues that the complainant’s clothing was not torn and there was no proof of force. There is no absolute standard setting the amount of force required to establish a rape. (People v. Sims (1972), 5 Ill. App. 3d 727, 729, 283 N.E.2d 906.) Each case must be considered on its own facts. It is proper to consider the disparity in the size and strength of the parties and the conditions under which the act took place. (People v. Sims (1972), 5 Ill. App. 3d 727, 729.) Defendant here is not a large man, but the record shows he had a 25-35 pound weight advantage over the complainant. Further, the acts took place in defendant’s car in dark and deserted alleys. Defendant strenuously argues that a forcible disrobing and a forcible rape could not have occurred in his car, a small Toyota Célica. This, too, was a matter for the trier of fact. Photographs of the interior of the car were introduced into evidence. The trier of fact might well have relied on the testimony that the car’s seats were reclined, a condition not shown in defendant’s photographs.

The testimony of the complaining witness, if clear and convincing, is enough to support a conviction for rape. (People v. Secret (1978), 72 Ill. 2d 371, 376, 381 N.E.2d 285.) In the case at bar, the record shows that the complainant’s testimony was clear; the trial court found it convincing. Her story is corroborated by a prompt complaint that she was raped. Defendant argues that the complaint was not prompt in that the complainant said nothing to the gas station attendant. A rape victim is not required to make an outcry to the first stranger she meets after the rape (People v. Jones (1976), 40 Ill. App. 3d 850, 857, 353 N.E.2d 375), and there is no fixed time limit within which a prompt complaint must be made. (People v. Secret (1978), 72 Ill. 2d 371, 377.) Defendant also asserts that the outcry was not voluntary, in that it was made in response to the question, “Did he rape you?” Given the circumstances, Yvonne Hardaway’s question was entirely reasonable. Mrs. Hardaway had just seen a nude and visibly upset female run toward her from a car in a darkened alley. No purpose would be served if a rape victim could be deprived of the probative value of a prompt complaint simply because a stranger asked about the rape before the victim could compose herself and report it. In any rape prosecution, the circumstances of the complainant’s outcry must be assessed in weighing credibility. In the instant case, the circumstances were properly before the trier of fact. We have reviewed the record and conclude that the admissible evidence was more than sufficient to support defendant’s conviction.

Defendant also contends that the trial court improperly admitted evidence of other crimes, i.e., the two earlier alleged rapes. (No charges were brought in those cases.) The State acknowledges the general rule that evidence of crimes not charged in the indictment is inadmissible. (See People v. McDonald (1975), 62 Ill. 2d 448,455,343 N.E.2d 489.) The State maintains, however, that the evidence in question was proper under an exception to that general rule. The State argues that the earlier rapes show a common design or modus operandi.

The State (and, indeed, some of the authorities) have used “common design” and “modus operandi” interchangeably but the concepts are quite distinguishable. A common design refers to a larger criminal scheme of which the crime charged is only a portion. Modus operandi means, literally, “method of working,” and refers to a pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer. (See generally McCormick, Evidence sec. 190, at 448-49 (2d ed. 1972).) A common design is frequently relevant to show the motive for the crime charged. Modus operandi is most useful in showing that the accused is the perpetrator of the crime charged.

There is no reason to believe that the alleged rapes are part of a common scheme. In arguing that the rapes share a modus operandi, the State lists approximately 19 similarities among the crimes. Some of the purported similarities are irrelevant coincidences (e.g., none of the women drank heavily) and others are merely descriptive of the crime of rape (e.g., force was used in all three attacks). While a showing of modus operandi does not require that the similarities be unique to the offenses being compared, there must be “some distinctive features that are not common to most offenses of that type.” (People v. Tate (1981), 87 Ill. 2d 134,142-43,429 N.E.2d 470.) In the case at bar, the State has simply failed to make the “strong and persuasive showing of similarity” required to demonstrate modzs operandi. (People v. Tate (1981), 87 Ill. 2d 134, 141.) The State’s lengthy list of purported similarities does not establish that the three alleged rapes were “so nearly identical in method as to earmark them as the handiwork of the accused.” McCormick, Evidence sec. 190, at 449 (2d ed. 1972).

Even if the State had shown a distinctive pattern of criminal behavior, the evidence would still be inadmissible. The State appears to assume that when a clear modus operandi has been shown, evidence of other crimes employing the same modus is automatically admissible. This assumption is incorrect and ignores a fundamental rule of evidence: “Whatever is relevant is admissible.” (Emphasis added.) (People v. Gray (1911), 251 Ill. 431, 439, 96 N.E. 268.) To be relevant, a given fact must tend to make a proposition at issue either more or less probable. (See People v. Gray (1911), 251 Ill. 431, 439.) Relevance is the touchstone of admissibility and defendant’s other crimes, even those sharing a common modus operandi, are inadmissible unless the State shows that the evidence is probative of a proposition at issue.

The State maintains that the prior rapes help to establish the offender’s identity. This claim is preposterous. Defendant admitted to intercourse with all three women. His identity was never in issue. The State also argues that the defendant’s modus operandi demonstrates the complainant’s lack of consent to the acts charged. This claim, too, is illogical. That two of defendant’s former victims testified that they did not consent to defendant’s sexual advances is wholly irrelevant to this issue of this complainant’s consent.

As noted above, the issues of force and consent are questions of credibility. (People v. Thompson (1978), 57 Ill. App. 3d 134, 141.) In People v. Romero (1977), 66 Ill. 2d 325, 329-32, 362 N.E.2d 288, our supreme court rejected the State’s argument that evidence of other crimes was admissible as probative of the credibility of the witnesses. The trial court in the case at bar stated that the disputed evidence was not admitted for the purpose of proving credibility. Rather, the court found the evidence of the other rapes relevant to the issue of plausibility. The only example proffered was based on defendant’s argument (in moving for a new trial) that it was unlikely that a rapist would demand both oral and genital intercourse. The trial court observed that the victim of one of the earlier alleged rapes had testified that defendant demanded both oral and genital sex and this testimony was relevant to the plausibility of the instant complainant’s account. This rationale is, at best, strained. Evidence of other crimes cannot be admitted if the basis for establishing the relevance of those crimes is speculative. (People v. Lindgren (1980), 79 Ill. 2d 129, 140,402 N.E.2d 238.) “The law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime.” (People v. Lehman (1955), 5 Ill. 2d 337, 342, 125 N.E.2d 506.) Where testimony has no value beyond the inference that the defendant has a propensity for the crime charged, the testimony is excluded. (People v. Lehman (1955), 5 Ill. 2d 337, 342.) Where, however, such testimony is independently relevant and shows motive, intent, identity, absence of mistake, or common design, the testimony is admissible. (People v. Lehman (1955), 5 Ill. 2d 337, 342-43.) We find that no proper purpose was served by the admission of the questioned evidence, and the trial court erred in allowing the testimony.

The next question is whether that error requires reversal. Defendant was convicted in a bench trial. Where trial is had without a jury, there is a presumption that the trial court considered only competent evidence. That presumption can be overcome where the record affirmatively shows the contrary. (People v. Gilbert (1977), 68 Ill. 2d 252, 258-59, 369 N.E.2d 849.) The circumstances of defendant’s trial suggest that the trial court must have considered the incompetent evidence. First, the modus operandi issue was strenuously contested at every stage of the litigation— at a motion in limine, during the trial and in the post-trial motion. The question was briefed and argued at length. Although we have not detailed the testimony of the victims of the prior alleged rapes, that testimony was extensive, comprising (as measured by pages of trial transcript) approximately 52% of the State’s case. In all likelihood, the trial court would not have admitted this testimony unless he believed it to have some probative value. We have held, however, that the evidence had no permissible use in the instant case. (Cf. People v. Fair (1977), 45 Ill. App. 3d 301, 306, 359 N.E.2d 848 (trial court admitted improper evidence over defendant’s objection; this fact negates the presumption that the court did not consider the incompetent evidence).) We must conclude that the evidence could only have been considered for an impermissible purpose.

The record contains many comments by the trial court and we are reluctant to interpret those comments out of context. Nevertheless, one statement suggests that the trial court did in fact consider the other crimes evidence for impermissible purposes. Shortly before finding defendant guilty, the court said:

“First, a word about the modus operandi evidence offered by the State and countered by the defense. The sole relevant purpose in adducing such evidence was to negate some such proposition as ‘regardless of the evidence, it is unthinkable that a defendant of the caliber of this defendant would ever commit such acts.’ ”

This statement appears to mean, “The disputed evidence was admitted solely to rebut the proposition that this defendant is too honorable to have committed a rape.” This is perilously close to saying, “The disputed evidence shows that this defendant has, despite his distinguished background, a propensity to commit rape.” We have held that evidence of other crimes admitted solely to show a propensity to crime is sufficiently prejudicial to require reversal. (See People v. Connors (1980), 82 Ill. App. 3d 312, 317,402 N.E.2d 773.) It is, of course, not completely clear that the trial court admitted the evidence for such purpose. Nevertheless, the admission was error, and this court has held that error cannot be harmless if there is a reasonable possibility that the incompetent evidence contributed to the conviction. (See People v. Bryant (1981), 100 Ill. App. 3d 17, 27, 425 N.E.2d 1325.) We also note that in denying defendant’s post-trial relief, the trial court again relies upon the modus operandi evidence by discussing its weight, not its exclusion and said: “In stating that the court did not consider it probative of which version of the facts was closer to the truth, the Court was merely indicating that if the testimony of the complaining witness had not been fully credible to establish the commission by the defendant of these three offenses, no amount of modus operandi evidence could make up for that lack. Its relevance then lies in the testing of that credibility, as the Court must, against every argument of implausibility, illogic and apparent contradiction.” (Emphasis added.) We find that the error was not harmless and that the comments and rulings of the trial court have rebutted the presumption that the incompetent evidence was not considered by the trial court.

We have found the testimony of the complainant and the Hardaway family sufficient to support defendant’s convictions for rape and deviate sexual assault. We reverse those convictions, however, because of the prejudicial effect of evidence of other rapes allegedly committed by defendant. The cause is remanded for a new trial.

Reversed and remanded.

HARTMAN, J., concurs.

JUSTICE DOWNING,

concurring in part and dissenting in part:

I concur with my colleagues that the testimony of the two other incidents should not have been admitted. The trial court was told by defendant’s counsel before trial that the defense would be “consent.” Therefore, the only real issue at trial was that of the credibility of the parties. The evidence of other crimes, generally inadmissible, could not be appropriately admitted here under the modus operandi exception to resolve that credibility issue.

My colleagues determined that this improperly admitted evidence was reversible error. This was a bench trial. I have read the remarks of the trial court (i) when it initially decided to admit the erroneous evidence, (ii) at the conclusion of the trial, and (iii) when it resolved the post-trial motion. At page 1002 of the majority opinion is quoted a portion of the trial court’s remarks upon the finding of defendant’s guilt. It is helpful to consider as well those comments of the court which immediately followed that quoted material:

“ ‘First, a word about the modus operandi evidence offered by the State and countered by the defense. The sole relevant purpose in adducing such evidence was to negate some such proposition as “regardless of the evidence, it is unthinkable that a defendant of the caliber of this defendant would ever commit such acts.”
“It was for that limited purpose that it was admitted, and was not considered probative by the Court on the issue of whether the version of facts recounted by the Defendant or by the State’s witnesses were closer to the truth." (Emphasis added.)

In my opinion, the record satisfactorily demonstrates that the erroneous evidence was not considered by the trial court in its resolution of the central issue of the case: the question of credibility of the complainant’s and defendant’s testimony in relation to the consent issue. The trial court satisfactorily indicated that the erroneous evidence was “received as evidence of defendant’s modus operandi." I cannot interpret anything said by the trial court, as trier of fact, which suggests any confusion or uncertainty on its part through the use of this modus operandi evidence to resolve the credibility issue.

In this bench trial, I find the evidence of defendant’s guilt overwhelming. It shows beyond a reasonable doubt that defendant was guilty of the offenses charged in the indictment. I do not find any prejudice to defendant which would require reversal. The record demonstrates the defendant received a fair trial. I would therefore affirm the conviction. Cf. People v. Armstrong (1961), 22 Ill. 2d 420,424,176 N.E.2d 755; People v. Martin (1979), 80 Ill. App. 3d 281, 294, 399 N.E.2d 265, appeal denied (1979), 79 Ill. 2d 623.

In reaching my conclusion, I have taken into consideration the entire record in the trial court and the rights of the defendant, as well as the not insignificant interests of the complainant and of society. In weighing all of these factors, it is my opinion that the administration of justice does not require a new trial.


author: PRESIDING JUSTICE JOHNSON

text:
    HOLIDAY INNS OF AMERICA, INC., Plaintiff-Appellee and Cross-Appellant, v. THOMAS TULLY, Assessor of Cook County, et al., Defendants-Appellants and Cross-Appellees.
    First District (4th Division)
    No. 81-251
    Opinion filed May 13,1982.
    Rehearing denied June 17,1982.

      Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Robert S. Vihon, Assistant State’s Attorneys, of counsel), for appellants.
    Klafter, Burke and Nathan, of Chicago (Melvin L. Klafter and Edward V. Hanrahan, of counsel), for appellee.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Defendants, Thomas Tully, Cook County Assessor, et al., appeal an order of the circuit court of Cook County authorizing a reduction in back taxes for plaintiff, Holiday Inns of America, Inc., and permanently enjoining collection of statutory interest from plaintiff for the years 1970, 1971 and 1972. Plaintiff cross-appeals from that part of the judgment which orders plaintiff to pay back taxes for the years 1970 and 1971, and the finding that the property was “omitted” for the year 1972, thereby authorizing back taxes for said year.

On appeal, defendants present the following issues for review: (1) whether the trial court erred by enjoining the statutory interest required by sections 220 and 224 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, pars. 701, 705); (2) whether the trial court erred in holding portions of the 1970 and 1971 back tax leasehold assessments void; and (3) whether the trial court erred by enjoining part of the 1970 and 1971 assessments since equitable relief was not proper.

On cross-appeal, plaintiff presents the following issues for review: (1) whether the trial court erred in finding the subject leasehold was “omitted” property within the meaning of section 220 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 701) and authorizing back taxes thereon, and (2) whether plaintiff was denied equal protection of the law by the imposition of back taxes for 1970,1971 and 1972, after the board of appeals hearings were closed, thus depriving plaintiff of its statutory right to have each assessment reviewed by the board of appeals.

We affirm.

On February 7, 1975, plaintiff filed this action to enjoin assessment, levy and collection of back taxes for the years 1970, 1971 and 1972 on plaintiff’s leasehold. Plaintiff holds a leasehold interest as a sub-lessee in a parcel of real estate owned by the board of education of the city of Chicago and located at One South Halsted Street, Chicago. Plaintiff’s leasehold interest runs from November 1,1966, to August 31, 2065.

Plaintiff’s complaint alleged that the back taxes were assessed and imposed in 1973 after the proceedings of the board of appeals were closed and the assessment books for 1973 had been certified, and that such taxes were based on assessments made in 1974 which were substantially greater than those originally made by the assessor in 1970 and 1971. Plaintiff alleged that assessing back taxes for those years (1970, 1971 and 1972) is unconstitutional and constitutes an attempted taking of its property without due process of law.

Plaintiff further alleged that for 1970-72 the same legal description was applied to parcel No. 17-16-100-030-8001 (hereinafter # -8001) in volume 591 of the warrant book as was applied to parcel No. 17-16-100-030-8002 (hereinafter # -8002) in volume 608 of the warrant book. The legal descriptions were changed in 1973 by a “division” made by the assessor. This “division” placed the fee interest on # -8001 and the leasehold interest on # -8002; both parcels were placed in volume 591. Previously, each number included both the fee and the leasehold. For 1970, 1971 and 1972, the assessor marked the record cards for parcel # -8001 as exempt. The leasehold was included in the legal description for # -8001 for 1970-72; thus, it was assessed as exempt for those years. Therefore, plaintiff contends, the leasehold was not omitted property for those years and the assessor was without authority to enter back taxes for 1970-72 on the leasehold because the leasehold was assessed as exempt for those years.

Plaintiff was assessed a use tax for 1970 and 1971 which was paid. Subsequently, the use tax was held unconstitutional by the Illinois Supreme Court and the resulting taxes held void. (See Dee-El Garage, Inc. v. Korzen (1972), 53 Ill. 2d 1, 289 N.E.2d 431.) The supreme court held that the unamended section 26 of the Revenue Act of 1939 (Ill. Rev. Stat. 1967, ch. 120, par. 507) was in full force and effect for 1970 and 1971. (Dee-El Garage, Inc. v. Korzen (1972), 53 Ill. 2d 1, 10-11.) Plaintiff Holiday Inns further alleged that it was refunded 85% of the use tax paid. The assessor proceeded to back tax the subject leasehold for 1970 and 1971. The leasehold was not omitted from the assessment for 1970 and/or 1971; thus, plaintiff argues, the assessor was without authority to back tax for those years.

The back tax bills that plaintiff received for the subject leasehold for the years 1970,1971 and 1972 are as follows:

ASSESSED VALUATION TAX
1970 $1,695,665 $204,337.96 (including 10% interest)
1971 $1,695,665 $211,644.40
1972 1,695,665 215,742.49

The assessments for 1970 and 1971 were increased as follows:

ORIGINAL
ASSESSMENT
1970 $1,408,974
1971 1,663,324
BACK-TAXED
ASSESSMENT
$1,695,665
1,695,665
INCREASE
$286,691
32,341

Finally, plaintiff sought injunctive relief to keep defendants from assessing, imposing or levying any back taxes for the years 1970,1971 and 1972.

On the parties’ cross-motions for summary judgment, the circuit court entered its judgment order; the pertinent parts follow.

The trial judge found that a back tax is authorized under Illinois law (Ill. Rev. Stat. 1979, ch. 120, par. 701 et seq.). He also found that there was an omitted property assessment for 1970, 1971 and 1972 as the subject parcel was assessed for a “use tax” as listed under permanent index No. 17-16-100-030-8002 for 1970 and 1971 and no tax was levied for 1972. There was an omitted property assessment for 1970 and 1971 since the subject parcel was not assessed and the taxes were not paid for each year. In assessing the back taxes for 1970, 1971 and 1972, the defendants afforded the plaintiff due process of law.

With regard to back taxes, the trial judge ruled that in 1970,1971 and 1972 the assessor placed a separate valuation on the land and improvements contained on parcel # -8002. The valuation of the land was void because it was a valuation placed on an exempt fee owned by the board of education. The valuation of the improvements leased by plaintiff for those years was based on the assessor’s then certified judgment, and the back taxes thereon identified under index No. 17-16-100-030-8002 for the years 1970, 1971 and 1972 were void to the extent that they altered the prior certified assessments.

But, the trial court held, plaintiff must pay an equitable tax for the years 1970, 1971 and 1972. The records of the assessor for those years cannot be altered in subsequent years through a revaluation of the property. The equitable real property tax for 1970 and 1971 is based upon (a) the improvement assessments as originally placed on the subject parcel by the assessor, (b) the applicable State multiplier, and (c) the applicable property tax rate, computed as follows:

1970 $1,177,545 x 1.59 x $.0689 = $129,001.23
1971 $1,431,895 x 1.59 x $.0785 = $178,721.97

The equitable tax for 1972 is equal to the amount based upon the improvement valuation judged by the assessor in that year, or $215,742.51. Defendants are entitled to no interest on these taxes. The defendants were enjoined and restrained from assessing, extending or levying any tax or back tax upon plaintiff’s leasehold for the years 1970,1971 and 1972 other than those ordered by the court.

From this order, defendants appeal and plaintiff cross-appeals.

Defendants contend the trial court erred by enjoining the collection of statutory interest as required by sections 220 and 224 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, pars. 701, 705).

We agree with defendants that sections 220 and 224 of the Revenue Act of 1939 clearly required the imposition of interest penalties for delinquent payment of taxes. We have previously found that the 1% interest imposed under section 224 constitutes a penalty. (Town of the City of Peoria v. O’Connor (1980), 85 Ill. App. 3d 427, 435, 408 N.E.2d 11, 17.) However, we disagree with defendants that the trial court erred by enjoining the collection of interest pursuant to sections 220 and 224.

The intent of section 220 (Ill. Rev. Stat. 1973, ch. 120, par. 701) is to provide for omitted property assessments where property which is liable to be taxed has failed to pay taxes. (In re Application of Rosewell (1979), 73 Ill. App. 3d 225, 230, 390 N.E.2d 1294, 1299.) Here, the trial court ordered payment of back taxes but did not authorize the collection of interest on the back taxes pursuant to section 220. Because this is a proceeding in equity, a court of equity is not bound by strict formulas but may “ ‘shape its remedy to meet the demands of justice in every case, however peculiar.’ ” (Hoyne Savings & Loan Association v. Hare (1974), 60 Ill. 2d 84, 90-91, 322 N.E.2d 833, 837.) We find that the trial court did not err by enjoining the collection of interest on the property taxes.

After the “use tax” was held unconstitutional by our supreme court (see Dee-El Garage, Inc. v. Korzen (1972), 53 Ill. 2d 1, 289 N.E.2d 431), Holiday Inns received a refund of those taxes and was assessed taxes under the old law. It is defendants’ position that Holiday Inns should be required to pay the \% penalty pursuant to section 224 of the Revenue Act of 1939. Equitable principles require us to disagree with defendants. Plaintiff should not be required to pay an interest penalty on taxes that were in fact paid under an unconstitutional statute. We are aware that the unconstitutionality of the 1969 amendment to section 26 of the Revenue Act of 1939 (Use Tax) leaves the law in force as it was prior to the adoption of the amendment. (Dee-El Garage, Inc. v. Korzen (1972), 53 Ill. 2d 1,10.) However, due to the particular facts and circumstances of this case, we uphold the trial court’s ruling that it would be inequitable to impose an interest penalty on plaintiff for late payment of taxes.

Defendants next contend the trial court erred in holding portions of the 1970 and 1971 back tax leasehold assessments void to the extent that they exceeded the improvement assessments previously certified under the “use tax” which the supreme court held to be unconstitutional and void. Further, according to defendants, the original assessments and the prior certified assessments were the “use tax” assessments; thus, it cannot be implied that the “use tax” imposed a duty upon the assessor to place the same valuation on the leasehold interest or to protect Holiday Inns from a higher leasehold valuation.

The unconstitutionality of the “use tax” is irrelevant as to whether the property may be reassessed. The general rule states that where real estate has been assessed by proper description and the taxes extended thereon have been fully paid, the board of review has no power in a subsequent year to review that assessment and increase or diminish it; but, if no assessment was made then the board of review may make an assessment of the omitted property in a subsequent year. (People ex rel. McDonough v. Birtman Electric Co. (1934), 359 Ill. 143, 145, 194 N.E.2d 282, 283.) In the instant case, the property had been assessed and a valuation placed on it; therefore, the assessor could not subsequently increase the taxes through a revaluation of the property. The trial court correctly ruled that the property tax was based upon the valuation judged by the assessor in those years and could not be reassessed.

Defendants contend that equitable relief is not proper because plaintiff had an adequate remedy at law by way of payments under protest and tax objections in which it could allege that the assessments were excessive, and that equitable relief is not proper unless (1) the tax is unauthorized by law, (2) the tax is levied upon exempt property, or (3) the tax is fraudulently excessive and an adequate remedy at law is unavailable.

Defendants’ assertion is based upon the holding in Clarendon Associates v. Cullerton (1973), 56 Ill. 2d 101, 306 N.E.2d 299. However, we find that case inapplicable here because this case involves a unique situation in which back taxes were reassessed due to the unconstitutionality of a statute. The unusual circumstances present in this case, coupled with the fact that the reassessments were excessive, require that equity retain jurisdiction of this case. See Hoyne Savings & Loan Association v. Hare (1974), 60 Ill. 2d 84, 322 N.E.2d 833.

Plaintiff, in its cross-appeal, contends the trial court erred in finding the subject property was “omitted” for the years 1970 and 1971 and authorizing back taxes. Plaintiff argues that under section 220 (Ill. Rev. Stat. 1973, ch. 120, par. 701) property is omitted only when the taxes thereon, for which such property was liable, have not been paid. Here, the property was assessed and taxes paid for the years 1970 and 1971. Thus, the property was not “omitted” within the meaning of section 220.

Section 220 provides in pertinent part:

“If any real or personal property is omitted in the assessment of any year or number of years, so that the taxes thereon, for which such property was liable, have not been paid, or if any such property, by reason of defective description or assessment thereon, fails to pay taxes for any year or years, in either case the same property, when discovered, shall be listed and assessed by the board of • 6 tt # » review .

Plaintiff had paid its taxes under amended section 26 which was later held to be unconstitutional in Dee-El Garage, Inc. v. Korzen (1972), 53 Ill. 2d 1, 289 N.E.2d 431. The trial court ruled that for the years 1970 and 1971 the taxes could be assessed as omitted property. We agree with that ruling. After plaintiff was refunded its payments, the tax books indicated that no taxes were paid on the property for those tax years. Therefore, the assessor could tax the property under section 220.

Further, whether we view the assessor’s abortive attempt to assess pursuant to amended section 26 and his effort to assess pursuant to section 26 as an omission of property from assessment or as a defective assessment of property liable to be taxed, in either case the assessor would be authorized to assess the property under section 220 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 701). (In re Application of Rosewell (1979), 73 Ill. App. 3d 225, 229,390 N.E.2d 1294,1299.) Finally, this result is in accord with analogous holdings and dicta in this and other States permitting omitted property assessments after initial assessments have been declared invalid or void. For a detailed listing of cases in other jurisdictions, see In re Application of Rosewell (1979), 73 Ill. App. 3d 225, 230.

Plaintiff finally contends the trial court erred in finding the subject property was “omitted” for the year 1972 and authorizing back taxes thereon. Plaintiff claims the property was marked as exempt for that year. Further, defendants’ back-taxing procedure deprived plaintiff of equal protection of the law.

We disagree with plaintiff. For the year 1972, the fee interest is represented by index No. 17-16-100-030-8001 which is marked as “exempt.” However, for that same year, index No. 17-16-100-030-8002 (representing plaintiff’s interest) is not marked as “exempt” but is an assessed valuation. Consequently, the above argument discussed in plaintiff’s first issue is applicable here. We find no error in this regard.

Plaintiff asserts that after the board of appeals had closed for filing assessment complaints and after the 1973 assessments as they then stood were final, the assessor back taxed the subject leasehold for the years 1970, 1971 and 1972, thus depriving plaintiff of its right to have the assessment for each of those years reviewed by the board of appeals and depriving plaintiff of equal protection of the law.

We disagree. Section 97 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, -par. 578) confers upon the county assessor the authority to make assessments of omitted property at the direction of the board of appeals or on his own initiative. The statute provides that the assessor has the authority to assess omitted property after he has completed his revision of assessments, executed his affidavit and delivered the books to the board of appeals. (North Pier Terminal Co. v. Tully (1976), 62 Ill. 2d 540, 546, 343 N.E.2d 507, 510.) Further, by specifically providing in section 97 that the assessor may make omitted property assessments after the assessment books have been certified and delivered to the board of appeals, the legislature must have contemplated that there need not be review of the assessor’s action in all cases because the board of appeals must adjourn by a fixed date after the delivery of the books, while there is no date fixed for the assessor to complete his duties. (In re Application of Rosewell (1979), 73 Ill. App. 3d 225, 233, 390 N.E.2d 1294,1301.) We find no merit in plaintiff’s claim that the back tax assessments were rendered invalid due to a deprivation of any statutory right to review or equal protection of the law.

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

Affirmed.

JIGANTI and ROMITI, JJ., concur.


author: JUSTICE LORENZ

text:
    BEVERLY BANK, Plaintiff-Appellee, v. ALSIP BANK, Defendant-Appellant.
    First District (5th Division)
    No. 80-2900
    Opinion filed May 14,1982.
    Rehearing denied June 18,1982.

      Steven D. Rakich and Jeffrey M. Weston, both of Friedman, Weston, Sternberg & Rakich, of Chicago, for appellant.
    William M. Smith, of Coakley & Smith, of Oak Lawn, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant appeals from the entry of a summary judgment against it contending that the trial court erred (1) in granting judgment because there were genuine issues of material fact, and (2) in denying its motion for judgment on the pleadings.

Material to our disposition are the following facts.

This action arose out of a loan participation agreement between the plaintiff, Beverly Bank, and the defendant, Alsip Bank. A loan participation agreement is an instrument in banking whereby two or more banks each provide a portion of the funding for a loan considered to be too large to be made by one individual bank. The bank which coordinates the loan participation transaction and makes the actual loan, in this case the Alsip Bank, is referred to as the “lead bank.” A participating bank is one which purchases an interest in the lead bank’s loan to the borrower.

Ordinarily, there is only one note involved and that extends between the borrower and the lead bank.

In the present case, John Ziola, Jr., the owner of the beneficial, interest in a land trust, directed the plaintiff, as trustee of the land trust, to borrow $420,000 from the defendant. The plaintiff purchased a one-third participation interest in this loan, pursuant to the terms of a loan participation agreement. The security for the loan was a first mortgage on real property which was the corpus of the land trust. The loan participation agreement and a collateral assignment of the beneficial interest in the trust, executed by Ziola, were both dated November 9,1973.

The participation agreement provided in pertinent part:

“It is expressly understood that we do not make any representations or assume any responsibility with respect to the 009 collectability of said note or the collateral securing the same and that, subject to the limitations set forth below, we are entitled to use our discretion with respect to exercising or refraining from exercising any rights or * * * which we may be entitled to take or assert under the terms of said note and that, although we will exercise the same care to protect your interest as we do to protect our own. We shall not, so long as we exercise such care, be under any liability to you with respect to anything which we may do or refrain from doing in the exercise of our judgment 0 ”

The “limitations set forth below” provided that “we will not, without your consent, e ” e (d) sell, assign, or transfer any of the collateral; # # # ”

In September of 1974, defendant approved an assignment of the beneficial interest in the land trust from Ziola to Phillip Grandinetti. The receipt of this assignment was executed by plaintiff, as trustee of the land trust. In June of 1975, Grandinetti filed bankruptcy proceedings under chapter XI of the Federal Bankruptcy Act in the Federal district court, thereby subjecting the participation loan to the jurisdiction of the bankruptcy court.

Plaintiff filed a two-count verified complaint in the law division. Count I alleged that, “pursuant to the terms of the participation agreement and the intent of the parties,” the defendant had breached its duty as trustee of an express trust to protect and preserve the collateral, and had violated the participation agreement by allowing the assignment without the plaintiff’s approval.

Count II was based upon breach of defendant’s duty as trustee of an express trust to foreclose on the trust deed, or to take any affirmative action to preserve the collateral. Both counts alleged that plaintiff was free from contributory negligence.

Defendant moved for summary judgment before it filed an answer, arguing that the exculpatory clause contained within the participation agreement absolved it from liability arising out of any duties as trustee. The motion urged, inter alia, that the exculpatory clause did not violate public policy, and that the agreement did not prohibit the assignment of the beneficial interest in the collateral.

A cross-motion for summary judgment was filed by plaintiff which argued that the exculpatory clause violated public policy; that the defendant’s motion for summary judgment admitted that there were no issues of fact and admitted the trustee relationship; and it was damaged because the change of beneficiary altered the total collateral package.

Plaintiff’s reply to defendant’s memorandum in support of its motion for summary judgment further alleged that the unauthorized release of collateral violated the participation agreement.

Defendant filed a verified answer denying, inter alia, (1) that it had or violated any duties as trustee to protect the collateral, or (2) that the assignment was made without plaintiffs consent or knowledge. The defendant also asserted two affirmative defenses to which the plaintiff did not file a reply.

Defendant moved to amend the caption of its motion for summary judgment to that of a motion for judgment on the pleadings, although it did not otherwise alter the substance of the underlying motion. Citing Freeport Construction Co. v. Star Forge, Inc. (1978), 61 Ill. App. 3d 999, 378 N.E.2d 558, defendant argued that the court had the authority to look to the intention of the pleader and not be bound by the caption of the pleadings.

During a hearing on these motions, the trial court asked the attorneys if it was uncontested that there was no consent to the assignment. Defendant’s attorney responded that “[t]here was no written consent, Your Honor, and as far as I know there is no verbal consent.”

Following this hearing, the trial court specifically reserved ruling on whether the exculpatory clause was against public policy but found that there was no genuine issue dealing with the question of consent because notice did not appear to be involved in the agreement. The court found that the assignment violated the participation certificate and entered an order (1) granting defendant’s motion to amend caption; (2) denying defendant’s motion for judgment on the pleadings; and (3) granting plaintiff’s motion for summary judgment as to liability only.

Plaintiff’s motion for summary judgment as to damages in the amount of $193,483.47 was subsequently granted, following which this appeal was taken.

Opinion

The first question presented for review is whether the defendant’s motion for judgment on the pleadings was properly denied and for the reasons set forth below, we agree.

For the sake of clarity, we note here that a motion for judgment on the pleadings attacks the sufficiency of plaintiff’s complaint as a matter of law (Johnson v. Town of the City of Evanston (1976), 39 Ill. App. 3d 419, 350 N.E.2d 70; Ill. Rev. Stat. 1979, ch. 110, par. 45), while a summary judgment motion should be entertained only if the movant does not contest the legal sufficiency of the opponent’s pleading. Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605; see also Laycock, 9 Loy. Chi. L.J. 823, 839 (1978).

In the present case, the defendant amended the caption on its motion for summary judgment to a motion for judgment on the pleadings without amending the body of its motion, the contents of which still sought summary judgment.

Since an amended pleading does not supersede a prior pleading unless it is complete in itself and does not refer to or adopt the prior pleading (Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 219 N.E.2d 147), we find that defendant’s motion as amended did not operate as an attack on the sufficiency of plaintiff’s complaint. Therefore, we conclude that defendant’s motion for judgment on the pleadings was properly denied.

The defendant’s brief also asserts a theory that the plaintiff’s complaint fails to state a cause of action by arguing that the terms of the participation agreement did not establish an express trust.

Initially, we note that the record indicates that this argument was not raised by either the defendant’s motion for summary judgment or for judgment on the pleadings.

A party may not argue one theory to a trial court and another to the appellate court (Westlake v. Moffitt (1975), 30 Ill. App. 3d 597, 334 N.E.2d 198), and it is well established that an issue not presented to or considered by the trial court cannot be raised for the first time on review (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 324 N.E.2d 417) even in summary judgment cases. (Smith v. Ashley (1975), 29 Ill. App. 3d 932, 332 N.E.2d 32.) Thus, defendant has waived argument on this point.

We next consider whether any genuine issues of material fact exist which would bar the granting of plaintiff’s motion for summary judgment as to liability.

The purpose of a summary judgment proceeding is not to try an issue of fact but rather to determine whether there is an issue of fact to be tried (Cato v. Thompson (1980), 83 Ill. App. 3d 321, 403 N.E.2d 1239; Ill. Rev. Stat. 1979, ch. 110, par. 57), and since the party opposing the motion has the right to trial by jury if there is a genuine issue of fact, the motion should be granted only when the right to it is clear and free from doubt. Kitsos v. Terry’s Chrysler-Plymouth, Inc. (1979), 70 Ill. App. 3d 728, 388 N.E.2d 1054.

Plaintiff initially argues that defendant, by moving for. summary judgment prior to filing an answer to plaintiff’s complaint, admitted that there was no question of fact, but only of law.

We note that the plaintiff also filed a cross-motion for summary judgment, and that neither plaintiff’s nor defendant’s motions were filed with supporting affidavits. The mere filing of cross-motions for summary judgment, as in the case at bar, does not establish that there is no issue of material fact, nor does it obligate the court to render summary judgment. (M. Snower & Co. v. United States (7th Cir. 1944), 140 F.2d 367.) The trial court must still independently determine whether a genuine issue of fact exists. (Snower.) Therefore, we do not agree that the nonexistence of a genuine issue of material fact was established by the filing of cross-motions in the case at bar.

We now turn to determine whether a genuine issue of fact exists in the present case. Having examined the record, we are of the opinion that the court erred in granting summary judgment as to liability.

In the trial court’s opinion on the plaintiff’s motion for summary judgment, the court stated its belief that there was no genuine issue dealing with the question of plaintiff’s consent to the assignment, which would thereby act to preclude defendant’s liability, because notice did not appear to be involved in the agreement.

Defendant argues that since plaintiff receipted the assignment, Beverly cannot subsequently argue that it did not consent to the assignment, as a matter of law. We agree.

A party to a contract may, by express agreement or by his own course of conduct, waive his legal right to insist on strict performance of the covenants of a contract. (Stewart v. Meyers (7th Cir. 1965), 353 F.2d 691; Chicago Sugar Co. v. American Sugar Refining Co. (7th Cir. 1949), 176 F.2d 1, cert, denied (1950), 338 U.S. 948, 94 L. Ed. 584,70 S. Ct. 486), and if certain provisions are waived by parol agreement, such waiver may be shown by parol testimony or may be shown by facts or circumstances sufficiently indicating an intention to waive. McQueeny v. Daily (1957), 14 Ill. App. 2d 477, 144 N.E.2d 805.

Although the sufficiency of facts constituting such a waiver is a question of law, a determination of whether such facts exist in any given case is a question of fact for the jury. (Stewart v. Meyers (7th Cir. 1965), 353 F.2d 691.) Furthermore, assuming, arguendo, that defendant is bound by a judicial admission that plaintiff did not provide any written consent, nevertheless the defendant did not concede the issue with regard to any parol agreement or course of conduct by the plaintiff.

In the present case, both parties agree that plaintiff receipted the assignment, but disagree on whether this constituted consent, and we find the language of the participation agreement to be ambiguous with regard to this issue. Similarly, we are not persuaded that the language of the agreement which prohibits the “sale or assignment of collateral” unambiguously includes the “sale or assignment of a beneficial interest in the collateral” as a matter of law.

While inferences may be drawn from undisputed facts, a motion for summary judgment should not be granted unless those facts are susceptible of but a single inference (Amsted Industries, Inc. v. Pollak Industries, Inc. (1978), 65 Ill. App. 3d 545, 382 N.E.2d 393), and if facts admit of more than one conclusion or inference, including one unfavorable to the moving party, a summary judgment should be denied. Smothers v. Butler (1979), 78 Ill. App. 3d 1018, 398 N.E.2d 12.

Applying the foregoing principles, we conclude that summary judgment was improper where the pleadings, exhibits, admissions and affidavits on file show that a genuine issue of material fact exists in the present case. O’Brien v. Kawazoye (1975), 27 Ill. App. 3d 810, 327 N.E.2d 236.

Since the trial court specifically reserved ruling on whether the exculpatory clause was void as against public policy, we need not address that issue here. In light of our decision, we do not reach the other issues involved in this appeal.

Accordingly, the summary judgment of the circuit court of Cook County in favor of plaintiff as to both liability and damages is reversed and remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

SULLIVAN, P. J., and MEJDA, J., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RAMON A. ORTEGA, Defendant-Appellee.
    First District (2nd Division)
    No. 80-1860
    Opinion filed May 18,1982.

      Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, James S. Veldman, and Warren A. Zimmerman, Assistant State’s Attorneys, of counsel), for the People.
    Joseph L. Goldberg, of Chicago, for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

The State appeals from an order of the circuit court following a hearing held pursuant to section 11 — 501.1 (Ill. Rev. Stat. 1979, ch. 95M, par. 11 — 501.1) (“implied consent law”) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95M, par. 1 — 100 et seq.) (“Code”). Two issues are presented on appeal, namely, whether the judgment appealed from is sufficiently of record to warrant the exercise of appellate jurisdiction, and whether the trial court properly dismissed the charge pursuant to the implied consent law. For the following reasons, we reverse and remand the cause to the trial court.

On February 18, 1980, at 1:55 a.m., defendant, Ramon Ortega, was arrested for driving a motor vehicle while under the influence of intoxicating liquor. The report and affidavit of the arresting officer, filed with the clerk of the circuit court, certified: that defendant struck a parked vehicle and had the strong odor of alcohol on his breath; and that defendant wilfully refused to submit to the breath analysis tests when requested to do so in accordance with the implied consent law, after being informed of the possible consequences of his refusal. Pursuant to section 11 — 501.1(d) of the Code (Ill. Rev. Stat. 1979, ch. QSÍ, par. 11 — 501.1(d)) the clerk of the circuit court provided defendant with written notice that his driver’s license would be suspended unless he requested a hearing at which specific issues would be determined.

Defendant requested a hearing and moved to dismiss the charges contending that the implied consent law was unconstitutional. At the close of the hearing on June 11, 1980, the court orally stated: that the constitutionality or unconstitutionality of the implied consent law had no bearing on the charge of driving under the influence of alcohol; that the issue before the court was whether the State would proceed with an implied consent hearing; that the statutory admonitions were confusing; and, that there was no statutory standard under which the Secretary of State could exercise his authority to suspend licenses. The court ordered “that the Petition submitted by the State against Defendant * * * for failure to submit to a breath test be stricken. However, the charge of 11 — 501 must remain and has no bearing on the Implied Consent law.” The court then set a “trial date” for August 21, 1980. The clerk of the court noted on a form entitled “Court Action and Other Orders” that the hearing was continued to August 21,1980.

On June 25,1980, the State filed its notice of appeal from the June 11, 1980, order. On December 9, 1980, the appellate court, pursuant to defendant’s motion, dismissed the appeal for the failure of appellant to incorporate a copy of the judgment of June 11, 1980, with a proper certificate by the clerk of the court to show that it embodies an official record. The State made a motion to reconsider the dismissal and attached a copy of an order, identified as exhibit B, signed by the trial judge'but not certified by the clerk of the circuit court, dismissing all charges filed against defendant pursuant to the implied consent law. This court reinstated the appeal.

I

Defendant moves to dismiss for the appellant’s failure to incorporate within the record an appealable order, urging that an opinion not made a part of a judgment order is not appealable. In addition, defendant contends that to secure a review of a judgment, such judgment must be shown in the record filed with the appellate tribunal, which is done by incorporating a copy of it with a proper certificate by the clerk to show that it portrays an official record, and there can be no substitute for this requirement. We disagree.

Hearings under the implied consent law are civil in nature and the rules governing civil appeals are applicable. (Ill. Rev. Stat. 1979, ch. 95½, par. 11 — 501.1(d); 73 Ill. 2d R. 301 et seq.; People v. Malloy (1979), 76 Ill. 2d 513, 519, 395 N.E.2d 381.) Whereas certification is designed to assure the accuracy of the record, it is not a jurisdictional requirement. (Ray v. Winter (1977), 67 Ill. 2d 296, 302-03, 367 N.E.2d 678; People v. Marbly (1980), 85 Ill. App. 3d 935, 937, 407 N.E.2d 721.) Failure to file an order does not affect its validity. (Landis v. Miles Homes Inc. (1971), 1 Ill. App. 3d 331, 335, 273 N.E.2d 153; Ill. Ann. Stat., ch. 110A, par. 272, Historical and Practice Notes, at 210 (1981 Supp.).) The rendition of a judgment is the judicial act by the court at the time it makes its pronouncement and entry of the judgment on the record is simply a ministerial act performed by the clerk. In re Estate of Young (1953), 414 Ill. 525, 533, 112 N.E.2d 113.

It is apparent from the certified transcript that the order of June 11, 1980, rendered by the court was a final judgment which terminated all further proceedings under the implied consent law. Since the timeliness of the State’s notice of appeal is not disputed, this is not a controversy involving the application of Supreme Court Rule 272 (73 Ill. 2d R. 272). (See West v. West (1979), 76 Ill. 2d 226, 390 N.E.2d 880.) More importantly, defense counsel does not challenge either the accuracy or the authenticity of the signed written order identified as exhibit B or the certified transcript of proceedings. In view of the particular circumstances of this case, we conclude that the June 11 order as reflected in the certified transcript of proceedings was of record in accordance with Supreme Court Rule 321 (73 Ill. 2d R. 321) and constitutes a final appealable judgment under Rule 301 (73 Ill. 2d R. 301). See Ray v. Winter (1977), 67 Ill. 2d 296,302-03; In re Estate of Young (1953), 414 Ill. 525, 533; but see Jones v. City of Carterville (1950), 340 Ill. App. 330, 91 N.E.2d 604.

II

The trial court dismissed all further proceedings pursuant to the implied consent law for reasons never succinctly articulated. Defendant supports the court’s decision by attacking, on a variety of grounds, the validity and constitutionality of the implied consent law. Defendant maintains that the law creates the “hopeless dilemma” of the arresting officer being required to warn defendant that his driver’s license may be suspended under section 11 — 501.1(a) (Ill. Rev. Stat. 1979, ch. 95?z, par. 11 — 501.1(a)) when the Secretary of State (“Secretary”) must suspend the license under section 11 — 501.1(d) (Ill. Rev. Stat. 1979, ch. 95%, par. 11 — 501.1(d)). Defendant’s position is untenable. Suspension shall occur under section 11 — 501.1(d) only if either the arrestee fails to request a hearing or upon termination of such a hearing “if that be the decision of the Court.” Hence the officer’s warning that refusal to submit to the breath tests “may” result in suspension of the driver’s license was in accord with other statutory provisions.

Next, defendant urges that the officer’s warning was inconsistent with a statutory requirement concerning one of the issues to be covered at the implied consent hearing. Specifically, defendant observes that the arrestee must be advised under section 11 — 501.1(a) that refusal to submit to the analyses may result in license suspension; whereas, section 11 — 501.1(d) requires that the implied consent hearing contemplate, among other things, the issue of whether arrestee was informed that his license would be suspended if he refused to submit to the test.

This same argument was considered in depth and rejected in People v. Malloy (1980), 83 Ill. App. 3d 344, 347, 403 N.E.2d 1221, where the court held that there was no substantive difference in the uses of “may” and “would” for purposes of these provisions in the implied consent law. We follow the holding in Malloy and find that the challenged provisions are in harmony.

Defendant’s assertion that the Code does not vest the Secretary with power and duties, and jurisdiction of administering the implied consent law is in error. Section 2 — 104(a) (Ill. Rev. Stat. 1979, ch. 95%, par. 2 — 104(a)) provides that the Secretary is “charged with the duty of observing, administering and enforcing the provisions of this Act.” The “Act” is the Illinois Vehicle Code, of which the implied consent law, included within chapter 11, is a part. See Ill. Rev. Stat. 1979, ch. 95½, par. 1 — 100; People v. Farr (1976), 63 Ill. 2d 209, 347 N.E.2d 146.

Defendant contends that the implied consent law violates the Illinois Constitution and the fourteenth amendment to the United States Constitution by reason of being vague and indefinite and an unlawful delegation of authority. The Secretary, defendant maintains, is given unfettered discretion to suspend licenses for as long as he pleases up to one year, citing sections 6 — 208(a) and 11 — 501.1(d) of the Code (Ill. Rev. Stat. 1979, ch. 95J¿, pars. 6-208(a), ll-501.1(d)).

The State observes that under section 11 — 501.1(a) an officer is required to advise the arrestee, among other things, that refusal to take the tests may result in suspension of his license “for 3 months on his first such arrest and refusal and for 6 months on his second and each subsequent such arrest and refusal within 5 years.” The State emphasizes that if the arrestee requests a hearing, such hearing must address itself to the issue of whether the arrestee was informed orally and in writing of the warnings specified in subsection (a), among other issues (Ill. Rev. Stat. 1979, ch. 95?2, par. ll-501.1(d)). The State urges that the legislature intended to limit any suspension imposed after a hearing to the 3 or 6 month period, described in the warning set forth in subsection (a) and that, therefore, the length of suspension is strictly determined by the person’s prior record of arrests and refusals.

Acts of the legislature are presumed constitutional; all reasonable doubts must be resolved in favor of constitutionality. (Northshore Post No. 21 v. Korzen (1967), 38 Ill. 2d 231, 233, 230 N.E.2d 833.) Where a statute is subject to two possible constructions one of which may render the statute unconstitutional, the courts will give the law that construction which avoids the constitutional problem. (McAleer Buick-Pontiac Co. v. General Motors Corp. (1981), 95 Ill. App. 3d 111, 114, 419 N.E.2d 608.) Provisions of a statute must be construed in light of the statute as a whole (Winks v. Board of Education (1979), 78 Ill. 2d 128,135, 398 N.E.2d 823), and to effectuate the intent of the legislature. (People v. McCoy (1976), 63 Ill. 2d 40, 44-45, 344 N.E.2d 436.) In view of these authorities, we adopt the construction advocated by the State and hold that the Secretary’s authority to suspend licenses after a hearing under the implied consent law is limited to the specific periods of time described in the officer’s warning set forth in section 11 — 501.1(a), which depend upon the person’s prior record of refusals.

The Secretary is required to suspend the license of a person who fails to request an implied consent hearing, applying the limitations set forth in section 11 — 501.1(a), or upon termination of such a proceeding held pursuant to a request “if that be the decision of the Court” under section 11 — 501.1(d). The implied consent law is not unconstitutionally vague and does not impermissibly delegate authority to the Secretary (see People v. Farr (1976), 63 Ill. 2d 209, 347 N.E.2d 146), since the law satisfactorily circumscribes the Secretary’s authority to suspend licenses pursuant thereto.

Defendant maintains, in effect, that section 6 — 206(a) (17) is unconstitutional or invalid, because the provision purportedly gives the Secretary absolute discretion over whether to suspend or revoke the licenses of certain persons.

The pertinent part of section 6 — 206 provides:

“(a) The Secretary of State is authorized to suspend or revoke the license, permit or driving privileges of any person without preliminary hearing upon a showing by his records or other sufficient evidence that such person: # # #
17. Has refused to submit to a test as required under Section 11 — 501.1 of this Act and such person has not sought a hearing as provided for in Section 11 — 501 of this Act.” (Emphasis added.)

Simply because under section 6 — 206(a) the Secretary is given authority to suspend “or” revoke licenses if the conditions specified in any of the 20 subsections listed therein are met does not necessarily give him authority to suspend “and” revoke in every enumerated instance.

The word “or” in section 6 — 206(a) is to be given its plain and ordinary meaning; it indicates that the various parts of the sentence are to be considered separately. (See People v. Vraniak (1955), 5 Ill. 2d 384,389,125 N.E.2d 513; People v. Butler (1979), 78 Ill. App. 3d 809, 817, 396 N.E.2d 1374.) The word “or” here refers to the implied consent law which provides the Secretary with the authority and obligation to suspend licenses under the circumstances specified; it does not empower him with authority to revoke. (Ill. Rev. Stat. 1979, ch. 95½, par. 11 — 501.1 et seq.) Our reading of section 6 — 206(a) (17), in conjunction with section 11 — 501.1, the implied consent law, leads to the conclusion that suspension of licenses does not encompass the power of revocation in this instance.

Defendant’s contention that the implied consent law is invalid for its purported failure to provide a penalty must be rejected. The law validly and competently provides specific sanctions for those who offend its terms, as the foregoing discussion reveals.

For the given reasons, the trial court’s order is reversed and the cause remanded for a hearing pursuant to the implied consent law.

Reversed and remanded.

DOWNING and PERLIN, JJ., concur.

       The State alleges that the order was not certified because defense counsel, after submitting and obtaining the judge’s signature thereon, did not see that the signed judgment was filed with the clerk of the circuit court. Counsel for defendant does not appear to contest this allegation, and maintained at oral argument that although defense counsel thought such an order indeed had been prepared, counsel had no duty to do anything further.

       The reference in 6 — 206(a) (17) to section 11 — 501, which creates a misdemeanor offense, namely, driving under the influence of intoxicating liquor, enforceable by the State through its criminal justice apparatus, was recently amended with the only pertinent change being the substitution of section “11 — 501.1” for section “11 — 501.” (Pub. Act 82-311.) The amendment’s reference to section 11 — 501.1 is in accord with section 6 — 206(a) since the implied consent law allows persons who refused to take the tests the right to request a hearing, provision for which is set forth in section 11 — 501.1, not 11.501. The amendment demonstrates that the legislature intended to refer to the implied consent law, section 11.501.1, the same statute cited within the sentence.