text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALFRED HINTON, Defendant-Appellant.
    First District (2nd Division)
    No. 82—638
    Opinion filed February 21, 1984.
    Rehearing denied March 20, 1984.

      Steven Clark and Bradley S. Bridge, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Adam A. Dabek, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

In this case, defendant Alfred Hinton appeals from his conviction, after a bench trial, of deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 3), and raises the following issues: (1) whether he was denied a fair trial because the State did not disclose, in accordance with Supreme Court Rule 412 (87 Ill. 2d R. 412), an inculpatory statement he had made to police; (2) whether the trial court erroneously admitted evidence of another crime; (3) whether the trial court impermissibly limited defendant’s cross-examination of the victim; (4) whether the trial court erred in allowing a police officer to testify as to the details of the victim’s complaint; and (5) whether guilt was established beyond a reasonable doubt.

Two indictments were issued against defendant for the offenses stemming from the complaints of an eight-year-old male concerning events which took place on August 2, 1980, and September 28, 1980. At trial, the State elected to proceed on the indictment which charged defendant with committing indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 4), deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 3), robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 1), and unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 3) on September 28,1980.

Before trial, the State informed the court that it intended to use evidence of the incidents which occurred on August 2, 1980. Over defense counsel’s objection, the trial court permitted the testimony. The victim, who made an in-court identification, testified that at 1 p.m. on that date, as he was walking on 63rd Street in Chicago, defendant approached him from behind, grabbed him and put a gun to his throat. The victim’s five-year-old companion fled at this point. Defendant took the victim to an abandoned store across the street and forced him to orally copulate him for about a minute. The victim noticed that defendant had a big scar on the right side of his stomach. Defendant gave the victim 27 cents, which the victim threw on the ground.

At approximately 4:30 p.m. on the following September 28, the victim was walking in the vicinity of 63rd Street and Cottage Grove when defendant approached him from behind, choked him and repeated the same words said on the other occasion, telling the victim he would have to orally copulate him. After taking about 60 cents from the victim’s pocket, defendant forced the victim to orally copulate him in an alley. The victim noticed the same scar. Upon reporting the incident to the police, the victim identified defendant from police photos and at a police lineup.

On cross-examination of the victim, defense counsel referred to the testimony the victim had given at a preliminary hearing and noted discrepancies between it and the trial testimony. During the preliminary hearing, the victim testified that the August 2 incident occurred on 61st Street, not 63rd Street; that the September 28 occurrence took place in a building and not in an alley; that nothing happened other than the oral copulation and no mention was made that defendant took 60 cents from him; also, the victim changed the name of the store he was coming out of.

The trial court found that the victim’s testimony regarding his identification of defendant and his description of the acts was unequivocal. The court noted the inconsistencies in the testimony but nevertheless held that the offenses of deviate sexual assault and indecent liberties with a child were proved beyond a reasonable doubt. Defendant was found not guilty of robbery, and the unlawful restraint charge was deemed merged with the other offenses. At the sentencing hearing, the court vacated the indecent-liberties charge as merging with the deviate-sexual-assault charge and defendant was sentenced to eight years’ imprisonment.

I

Defendant urges that he was denied his right to a fair trial when the prosecutors failed to disclose, after his discovery request, that he had made an inculpatory statement to police; the State, he argues, thereby violated Supreme Court Rule 412(a)(ii) (87 Ill. 2d R. 412(a)(ii)), which requires certain disclosures to an accused. The purpose of this rule is to afford an accused protection against surprise, unfairness and inadequate preparation. People v. Ingram (1980), 91 Ill. App. 3d 1074, 1082, 415 N.E.2d 569.

At trial, the arresting officer testified that he had asked defendant whether he had a scar. Defendant replied yes, and then partially pulled down his pants to reveal the top of a scar which the officer believed was from an appendectomy. Defense counsel objected, claiming that it was tantamount to a statement and that the defense had not been informed of any statements which defendant had made. The trial court stated that it couldn’t recall any statements of the person and that “You can’t strike actions.”

In some instances, a statement may be an oral assertion coupled with nonverbal conduct intended as an assertion. (See Fed. R. Evid. 801(a).) Such a statement or nonverbal act may amount to an admission of a physical characteristic. In this case, the officer not only testified that defendant answered “yes,” but he also exposed his scar to the officer. The single word “yes,” brief as it is, under certain circumstances, may constitute a statement covered within the mandate of Rule 412(a)(ii).

Although we recognize that the defendant is entitled to receive all statements made by him, regardless of whether they can be appropriately characterized as an admission or a confession (People v. Romo (1980), 85 Ill. App. 3d 886, 896, 407 N.E.2d 661, appeal denied (1980), 81 Ill. 2d 597), we note that defendant persistently classified the instant statement as “inculpatory” in an attempt to support his theory that he was prejudiced by it. We do not concur in this characterization. By acknowledging that he had a particular physical scar, defendant did not as a consequence admit guilt. We fail to see how the revelation of this physical scar is any more “inculpatory” than if the police officer had been able to view the scar without defendant’s aid, as in the case of height, eye color, etc. We also note, as defendant admits, that the State could have required defendant to submit to a medical exam or display his abdomen on the stand without violation of his fifth amendment rights. (See Schmerber v. California (1966), 384 U.S. 757, 765, 16 L. Ed. 2d 908, 916-17, 86 S. Ct. 1826, 1832-33; Holt v. United States (1910), 218 U.S. 245, 252-53, 54 L. Ed. 1021, 1030, 31 S. Ct. 2, 6.) Likewise, persons involved in the criminal process may be compelled to submit to breath, urine, saliva or other such tests. E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 502.7 (3d ed. 1979).

Defendant argues that as no advance warning was given, his trial strategy may have been altered. We do not agree that it was the timing of the disclosure which was damaging, but rather it was the nature of the evidence. See People v. Cowherd (1980), 80 Ill. App. 3d 346, 351, 399 N.E.2d 672, appeal denied (1980), 81 Ill. 2d 585.

A court must look at the following factors in determining whether a defendant was prejudiced by the State’s failure to disclose: “[t]he strength of the undisclosed evidence, the likelihood that prior notice could have helped the defense discredit the evidence, the feasibility of continuance rather than a more drastic sanction, and the wilfulness of the State in failing to disclose ***.” (People v. Weaver (1982), 92 Ill. 2d 545, 560, 442 N.E.2d 255.) Defendant should have known before trial that the victim’s testimony would consist of a description of a scar, yet defendant never introduced any evidence to refute its existence. Advance notice of the officer’s testimony would not have helped defendant disprove the evidence. Further, although the evidence was strongly corroborative, the victim had positively identified defendant through police photos and a lineup without any reference to the scar.

Although we do not condone the inaction of the State in failing to divulge this information which it is charged with knowing (People v. Shegog (1976), 37 Ill. App. 3d 615, 617, 346 N.E.2d 208), we conclude that defendant did not suffer such prejudice, as a result of the trial court’s decision to admit the evidence, so as to justify a reversal of his conviction.

II

Defendant also contends that the trial court erred by allowing evidence of the other crime committed on August 2, 1980. When defense counsel first objected to the use of this testimony, the trial court stated that if it determined that the testimony was probative “on the issue of identity, or modus operandi, one of those type of exceptions, I will allow it.” After trial, the court commented that the conduct on August 2 was considered solely for purposes of identification. This purpose is a recognized exception to the rule that evidence of crimes other than the one defendant is being tried for is not admissible. People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489.

The State urges that since the issue of defendant’s identity is important, testimony concerning a prior crime with the same victim is admissible in demonstrating an additional opportunity to view the defendant. (People v. Davis (1958), 14 Ill. 2d 196, 200-01, 151 N.E.2d 308.) In a similar case to the one at hand, People v. Ellis (1962), 26 Ill. 2d 331, 186 N.E.2d 269, the court allowed testimony concerning a prior robbery of the same victim by defendant and stated that “the identity of defendant was a highly material issue and *** the circumstance that [the victim] had been held up by the same man a few days before weighed heavily upon his ability to identify the accused ***.” 26 Ill. 2d 331, 334,186 N.E.2d 269.

Likewise, the young victim here had only seen defendant on two occasions, and his ability to describe him was material to the case. Further, we hold that the prejudicial effect of this evidence, if any, did not outweigh its probative value (People v. Triplett (1981), 99 Ill. App. 3d 1077, 1082, 425 N.E.2d 1236, appeal denied (1982), 88 Ill. 2d 554), and the facts related were necessary to show the opportunity for observation (People v. Butler (1975), 31 Ill. App. 3d 78, 80, 334 N.E.2d 448, appeal denied (1975), 61 Ill. 2d 598). Since the trial court properly used this evidence solely for identification purposes, we conclude that defendant was not harmed as he claims.

Ill

Defendant next urges that his conviction be reversed because the trial court improperly limited his cross-examination of the victim. After the youth had testified that he told police that defendant was “forty to thirty years old,” defense counsel asked him how old he thought counsel looked, how old the judge looked and how old defendant looked. Objections to each of these questions were sustained and the trial court stated: “He made an observation at the time, which was recorded apparently.” Defendant urges that these questions were highly relevant to the victim’s identification, and denial of his ability to ask them violated his constitutional right to confront witnesses.

The scope of a cross-examination is within the sound discretion of the trial court; when identity is in issue, a defendant should be given considerable latitude in order to test the identification, the means of observation, and the memory of the witness. (People v. Watkins (1974), 23 Ill. App. 3d 1054, 1059, 320 N.E.2d 59.) A defendant must prove that the trial court clearly abused its discretion which resulted in manifest prejudice to him. People v. Gallo (1973), 54 Ill. 2d 343, 356, 297 N.E.2d 569.

In this case, defendant was allowed to impeach the victim on the issue of age estimation by noting that the victim had told police that defendant was 30 to 40 years old, yet the police report stated 40 to 50 years. The basis of his identification was his ability to select, and identify, defendant from the police photos, the lineup and in court. Age was a factor in his ability to identify defendant, about which he was cross-examined. Based on the record, we do not find that the trial court abused its discretion in limiting the cross-examination into collateral matters. To have permitted such questioning would have required the irrelevant testimony of other persons present in the courtroom as to their ages. The trial court did not abuse its discretion in excluding this testimony.

IV

Additionally, defendant complains that he was denied his right to confront witnesses when the trial court allowed police officer Daniel Dixon to testify as to the details of the complaint the victim made of the incident. Officer Dixon testified, over objection, that on August 2, the victim told him that his attacker was about six feet tall, weighed over 200 pounds, had a dark complexion, was middle-aged, was black and had a scar on his stomach. Defendant urges that this hearsay testimony was not admissible either as a spontaneous declaration or as a corroborative complaint allowed in rape cases because in those instances, only the fact of the complaint, and not the details, is allowed into evidence. People v. Andino (1981), 99 Ill. App. 3d 952, 955, 425 N.E.2d 1333.

As numerous cases dealing with hearsay statements note, the main objectionable feature underlying the rationale for its exclusion is the opposing party’s inability to test the value of the testimony by exposing the declarant to cross-examination. (See People v. Robinson (1978), 73 Ill. 2d 192, 200, 383 N.E.2d 164, and cases cited therein.) Our supreme court has allowed a third party (here, Officer Dixon) to testify as to “A’s” (here, the victim’s) identification of “B” (here, defendant), as long as “A” has first testified as to his out-of-court identification. (People v. Rogers (1980), 81 Ill. 2d 571, 579, 411 N.E.2d 223.) Here, the complainant had previously testified that he gave a description to the police (although not to this specific officer). He was cross-examined on this subject and was available at trial if defendant wished to recall him for further cross-examination. We conclude that defendant has not demonstrated that reversible error was committed in this regard.

V

In claiming that he was not proved guilty beyond a reasonable doubt, defendant points to the numerous instances where the victim was impeached on the details of the crime. Defendant reminds this court that it has a special obligation in reviewing rape and indecent liberty convictions due to the very nature of the charge (People v. Reese (1973), 54 Ill. 2d 51, 57, 294 N.E.2d 288), and that a child’s testimony must either be clear and convincing or substantially corroborated in order to sustain a conviction based upon it (People v. Morgan (1977), 69 Ill. 2d 200, 206, 370 N.E.2d 1063).

Defendant argues that the victim’s account of the occurrences in this case is highly unbelievable and plainly incredible and likens it to the account which was found implausible in People v. Anderson (1974), 20 Ill. App. 3d 840, 314 N.E.2d 651. In that case, the court found complainant’s testimony was not clear and convincing, based partially on her testimony that she was accosted in broad daylight and spirited across a busy street without attracting the attention of any passersby.

Although in the instant case, the victim testified that 63rd Street was a busy street and that the incidents occurred during daylight, his testimony on the whole supports the trial court’s finding. As to the inconsistencies in his testimony, his age must be considered, and as the trial court stated, the victim gave unequivocal testimony regarding defendant’s identification and the details of the sexual acts. Based upon our review of the record, the proof offered by the State was not so unsatisfactory and unconvincing so as to raise a serious doubt of defendant’s guilt (People v. Szudy (1982), 108 Ill. App. 3d 599, 605, 439 N.E.2d 137, appeal denied, (1982), 92 Ill. 2d 572); thus, his conviction should not be overturned.

For the reasons stated above, we affirm the judgment of the circuit court of Cook County.

Affirmed.

HARTMAN, P.J., and PERLIN, J., concur.

      The victim testified in court that he told the police that his attacker had a scar. Defendant received, before trial, copies of the pertinent police reports. As the victim’s testimony was unchallenged, it is reasonable to assume this testimony was in the police reports.


source: Caselaw Access Project

author: JUSTICE GOLDBERG

license: Public Domain

text:
    THELMA MINFIELD, Plaintiff-Appellant, v. E. ALLEN BERNARDI, Director, Illinois Department of Labor, et al., Defendants-Appellees (Marshall Field and Company, Defendant).
    First District (1st Division)
    No. 83—1462
    Opinion filed February 6, 1984.
    Rehearing denied March 20, 1984.

      Legal Assistance Foundation, of Chicago (Jeffrey B. Gilbert, Timothy Huizenga, and Michael Pardys, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Susan C. Weidel, Assistant Attorney General, of counsel), for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Thelma Minfield (plaintiff) has appealed from an order affirming denial by the Department of Labor (department) of plaintiff’s claim for unemployment compensation (Ill. Rev. Stat. 1981, ch. 48, par. 300 et seq.). The briefs before us are unnecessarily enlarged and cite many unnecessary cases. As we view the record here, we find one dispositive issue: whether plaintiff is entitled to unemployment compensation based upon her last employment with Marshall Field and Company (Field’s).

Prior to December 9, 1981, plaintiff worked full time for the city of Chicago and also worked part time for Field’s. On December 9, 1981, plaintiff was discharged by the city of Chicago. Neither the circuit court nor this court is concerned with or has jurisdiction over the relationship and the rights of the parties as regards plaintiff’s employment with the city of Chicago.

However, on January 3, 1982, plaintiff left her work at Field’s after her request for full-time work had been denied. Plaintiff applied for compensation. The referee and the Board of Review denied plaintiff’s claim. The circuit court affirmed the denial. Plaintiff appealed to this court.

The record before us shows the following facts. Plaintiff had worked to support her eight-year-old son, who has a speech problem and a learning disability. Her part-time wages from her employment at Field’s were insufficient to pay her expenses, including the cost of a baby-sitter.

At the hearing plaintiff told the referee she left her employment at Field’s because, “I needed more money. I couldn’t afford to pay my baby-sitter. I needed more hours. They said they didn’t have any available. They had a freeze on hiring.” Plaintiff told the referee she was being paid the agreed rate by Field’s. This employer did not cause her to leave or do anything to break the contract of hire.

In denying plaintiff’s claim the Board of Review found:

“*** the evidence established that the claimant left work because she was dissatisfied with the amount of money which she had received working only part time. This is not good cause attributable to the employer within the meaning of the statute.”

Plaintiff has raised other issues before reaching the merits of her claim to compensation:

I

On March 28, 1983, the trial judge, upon consideration of the record and arguments of the parties, entered an order finding plaintiff was discharged by the city of Chicago for misconduct and plaintiff was therefore ineligible for benefits based on her city employment. The trial judge also found the decision that plaintiff voluntarily left work from Field's without good cause was “against the manifest weight of the evidence.” The trial court therefore ordered that plaintiff was eligible for benefits based on her earnings from Field’s “if she was otherwise able and available.”

Within 30 days plaintiff filed a timely post-trial motion. (See Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1203.) The motion stated that the trial court had no jurisdiction over plaintiff’s claim for benefits based upon her employment with the city of Chicago. Plaintiff stated no appeal had been taken from the referee’s decision concerning the city employment.

On May 11, 1983, the trial judge considered plaintiff’s post-trial motion in open court and heard argument of counsel. At that time, which was more than 30 days after judgment, the department filed a written “response” to plaintiff’s post-trial motion. The department prayed that the post-trial motion be denied and alternatively for a decision that plaintiff left her employment with Field’s without good cause.

After this hearing, on May 11,. 1983, the trial court entered an order which vacated the previous order of March 28, 1983. The court ordered that plaintiff was denied benefits based upon her employment with Field’s. This order did not mention plaintiff’s employment with the city. The within appeal followed.

We hold the timely post-trial motion filed by plaintiff prevented the judgment from finality after the expiration of 30 days. (See In re Marriage of Uphoff (1983), 99 Ill. 2d 90, 95.) The timely post-trial motion gave the trial court complete jurisdiction over the entire matter “until the disposition of any pending post-trial motion.” (In re Marriage of Parello (1980), 87 Ill. App. 3d 926, 931-32, 409 N.E.2d 461, and cases there cited. See also In re Marriage of Uphoff (1983), 99 Ill. 2d 90, 95.) The fact that the department’s post-trial motion or “response” was not timely filed as regards this 30-day period did not affect the power of the trial court to modify the judgment entered March 28, 1983. (Freeman v. Chicago Transit Authority (1965), 33 Ill. 2d 103, 210 N.E.2d 191; see also Wozniak v. Segal (1974), 56 Ill. 2d 457, 460, 308 N.E.2d 611.) Consequently we find and conclude that the trial court had full and complete jurisdiction to' enter the order of May 11, 1983.

Plaintiff relies primarily upon Putz v. Schulte (1982), 104 Ill. App. 3d 128, 432 N.E.2d 1070. The court there held that a late post-trial motion should not have been considered by the trial court and the decision in In re Marriage of Parello would not require the court to reach a different conclusion. Putz may affect the viability of defendant’s motion or “response.” However, that fact is fundamentally irrelevant. Putz does not affect the applicability of Freeman which holds that once a timely post-trial motion is filed the trial court may modify any aspect, of the original judgment on its own motion. See Freeman v. Chicago Transit Authority (1965), 33 Ill. 2d 103,106.

II

Plaintiff criticizes the hearing held by the referee. Plaintiff contends the referee denied her a fair hearing because he did not fulfill his duty to ascertain all of the pertinent facts surrounding plaintiff’s claim. See Flores v. Board of Review (1979), 74 Ill. App. 3d 667, 393 N.E.2d 638.

Our study of the hearing in question convinces us the referee allowed plaintiff a complete opportunity to explain her reasons for leaving her employment with Field’s. The referee’s questions to plaintiff were nonadversarial and not leading. Plaintiff honestly told the referee her reasons for leaving her job as above set forth. At the end of the hearing, the referee asked plaintiff if there was anything additional she wished to state for the record. Plaintiff replied simply that she left employment with Field’s because she was not making enough money. The referee was apprised of all the pertinent facts which have since been submitted to this court. Therefore, we conclude plaintiff was granted a fair and impartial hearing and was afforded due process of law. See Yadro v. Bowling (1980), 91 Ill. App. 3d 889, 895, 414 N.E.2d 1244.

III

Plaintiff contends she received no notice of her right to counsel. The department responds that its practice is to mail an instruction sheet to each claimant with the notice of hearing. This sheet states that although legal services are “not necessary,” either an attorney “or someone else” may represent or assist the claimant at the hearing. Plaintiff responds there is no evidence in the record that plaintiff ever received such an instruction sheet.

In any event, in our opinion, this point raised by plaintiff is meaningless. Plaintiff had the right to appear pro se or with counsel as she chose. In this type of situation, plaintiff has waived counsel and was therefore responsible for conducting her own case. (Bard v. Harvey (1979), 74 Ill. App. 3d 16, 21, 392 N.E.2d 371.) We will add that plaintiff was not prejudiced in any manner by her failure to have counsel. Indeed, if such prejudice had ever existed, it would have been more than overcome by the thorough and lengthy presentation of plaintiff’s counsel in the trial court and in this court.

IV

Plaintiff contends the referee and the Board of Review failed to make findings of fact. We reject this contention. The referee made a specific finding of fact that plaintiff quit her part-time job because it was not paying enough to live on. The referee also expressed the conclusion that the fact that plaintiff left work was not attributable to the employer and therefore plaintiff left without “good cause” as defined in the statute. The Board of Review similarly found that the evidence established that claimant left work because she was dissatisfied with the amount of money she would receive working only part time. Both the referee and the Board of Review made good and sufficient findings of fact. See Grissom v. Board of Education (1979), 75 Ill. 2d 314, 326, 388 N.E.2d 398.

V

Turning at long last to the merits of the present litigation, we agree with the determination of the department’s Board of Review that plaintiff’s decision to leave the employ of Field’s because of her dissatisfaction with wages and hours did not constitute “good cause attributable to the employer within the meaning of the statute.” See Ill. Rev. Stat. 1981, ch. 48, par. 431(a).

The litigants have not cited, nor have we discovered, a similar case in Illinois. However, we have found cases from other jurisdictions which have concluded that dissatisfaction with wages paid does not constitute good cause voluntarily to leave employment. See, e.g., Weber v. Catherwood (1969), 32 App. Div. 2d 697, 299 N.Y.S.2d 957; Harris v. Daniels (1978), 263 Ark. 897, 567 S.W.2d 954; Mosley v. Pennsylvania Unemployment Compensation Board of Review (1974), 15 Pa. Commw. 447, 327 A.2d 199.

Similarly, courts have determined that dissatisfaction with the number of working hours does not constitute good cause to leave employment. In White v. Levine (1976), 52 App. Div. 2d 1003, 383 N.Y.S.2d 438, the court held that the employee’s refusal to accept a reduction of working hours did not constitute good cause. (Accord, Hedrick v. Employment Division (Or. App. 1976), 548 P.2d 526.) In Keiper v. Pennsylvania Unemployment Compensation Board of Review (1978), 38 Pa. Commw. 117, 120, 391 A.2d 1146, 1148, the claimant testified “[I] wasn’t getting my 40 hours a week and I was disgusted and I quit.” The court held such a reason did not constitute good cause for leaving employment. Accord, Owen v. Unemployment Compensation Board of Review (1976), 26 Pa. Commw. 278, 363 A.2d 852.

Finally, in Zielenski v. Board of Review, Division of Employment Security, Department of Labor & Industry (1964), 85 N.J. Super. 46, 52, 203 A.2d 635, 638, the court stated:

“Claimant’s primary reason for voluntarily quitting his job *** was the unsteadiness of the job and the fact that he was working, on an average, only one or two days a week at a daily wage of $24.40. But this did not constitute good cause for giving up this partial employment for no employment at all.
* * *
***. The employee who works at an unsteady employment, averaging only one or two days a week at his accustomed trade, may well be dissatisfied with his job and seek another which provides more regular employment and better weekly wages. But he has a reasonable opportunity to pursue that course on the days when he is not working ***.”

In the case at bar, it is clear from plaintiff’s own testimony that she left her employment at Field’s because she was dissatisfied with the amount of money she was earning and because Field’s would not give her full-time employment. It is also clear that Field’s did nothing which altered the terms, conditions, hours, or compensation of the job plaintiff originally accepted.

Plaintiff relies on five cases all of which we find distinguishable from the case at bar:

In Keystone Steel & Wire Division v. Department of Labor (1976), 37 Ill. App. 3d 704, 346 N.E.2d 399, and Brainard v. Unemployment Compensation Com. (Del. Super. Ct. 1950), 76 A.2d 126, the compensation paid by the employer to the claimant was substantially reduced. On the contrary, in the case at bar, the compensation paid by Field’s to plaintiff remained constant.

In Lyons v. Appeal Board (1961), 363 Mich. 201, 108 N.W.2d 849, and Laya v. Cebar Construction Co. (1981), 101 Mich. App. 26, 300 N.W.2d 439, claimants left employment which was over 270 miles from their homes and families. Clearly no such factor is present in the case at bar.

Finally, in In re Claim of Marcus (1951), 278 App. Div. 1037, 106 N.Y.S.2d 901, the claimant quit employment as an alternate taxi driver where he was obliged to arrive on the job daily without any assurance that he would work any hours that day. On the contrary, in the case at bar, plaintiff’s employment with Field’s was dependable with assured hours and compensation.

The judgment appealed from is accordingly affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: PRESIDING JUSTICE WILSON

text:
    ALAN W. McCARTHY, Plaintiff-Appellant, v. JOHN A. JOHNSON, JR., et al., Defendants-Appellees.
    First District (5th Division)
    No. 82—2538
    Opinion filed December 30, 1983.
    Rehearing denied March 19, 1984.
    Edmund J. Burke, of Hoffman, Burke and Bozick, of Chicago (Norman E. Wilson, of counsel), for appellant.
    George C. Moravcik, of St. Charles, for appellees.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

This is an appeal from the entry of summary judgment in a suit to determine shareholder interest. In anticipation of the dissolution of Federal Asphalt Corporation (Federal), plaintiff sought a declaratory judgment to determine his shareholder interest. It was his position that he owned a 20% interest in the corporation. In response, defendants, the remaining Federal shareholders, filed a motion for summary judgment, requesting the trial court to find that, pursuant to the terms of an option letter agreement, plaintiff had only a 2% shareholder interest in Federal. The trial court granted defendants’ motion. The sole issue on appeal is whether genuine issues of fact exist so as to preclude the grant of summary judgment. For the reasons that follow, we affirm the decision of the trial court.

The undisputed facts disclose that at the time of its incorporation on May 17, 1971, Federal had a stated capital of $10,000, which represented the amount paid by defendants for 10,000 shares of Federal common stock. At that time, no funds had been distributed to paid-in surplus.

On May 18, 1971, each defendant executed an option letter agreement with plaintiff which offered him the option to purchase 1,000 shares of Federal stock from each defendant, 500 to be purchased from each by May 18, 1972, and the balance to be purchased by May 18, 1973, at the same price paid by defendants for their shares, “that is, $1.00 per share.” The following purchase price contingency clause was included in each agreement:

“In the event that, subsequent to the date hereof, there is any change in the shares of Federal Asphalt which are the subject of the Option by reason of a reorganization, recapitalization, merger, consolidation or split-up, combination or exchange of shares or similar procedure, or in the event of a stock dividend, the number of Federal Asphalt shares (or the securities into which such shares may have theretofore been changed) subject to the Option and the Option purchase price per share shall be equitably adjusted.”

On June 14, 1971, Federal filed a “Report of Issuance of Shares and Increases in Stated Capital and Paid-in Surplus” with the Illinois Secretary of State which reflected the addition of $90,000 to paid-in surplus, half of which was contributed by each defendant. No additional shares were issued; the class of stock remained the same; and the par value remained at $1 per share. Subsequently, in May 1972 and May 1973, plaintiff timely exercised his options to purchase 2,000 shares from the defendants at a purchase price of $1 per share and was issued stock certificates indicating his ownership of 2,000 shares of Federal stock, or 20% of the 10,000 issued and outstanding shares.

In 1979, Federal’s assets were sold and the proceeds of the sale were deposited in a bank account pending resolution of the controversy regarding plaintiff’s rights and legal interest in the paid-in surplus amount of $90,000. In support of his position that he had a 20% shareholder interest, plaintiff alleged, inter alia, that: (1) he was the registered owner of 2,000 shares of Federal common stock; (2) the $90,000 added to paid-in surplus in 1971 by defendants did not represent a loan or a separate stock classification; and (3) he timely exercised his stock options pursuant to the provisions of the stock option agreements. Further, plaintiff argued that at no time during the six-year period between his purchase of the shares and the sale of Federal’s assets did defendants request additional payment from him.

In response, defendants filed a motion for summary judgment asking the court to find, as a matter of law, that plaintiff owned a 2% interest in Federal and was entitled to only 2% of the net proceeds from the sale of its assets. In this regard, defendants argued that their contributions of $45,000 each to paid-in surplus in June 1971, effectuated a recapitalization which triggered the purchase price contingency clause in the option agreements and effectively increased the purchase price of their shares from $1 to $10. They predicated the price increase argument on the fact that each defendant contributed a total of $50,000 to the corporation and owned 5,000 shares. Thus, because the option agreements unambiguously state that plaintiff’s purchase price is to be the same as that of defendants, and plaintiff paid only one-tenth of the price paid by defendants, plaintiff owned only a 2% interest in the corporation.

In granting defendant’s motion for summary judgment, the trial court stated:

“[Plaintiff] is bound by the terms and conditions of the option agreement, which contains a specific paragraph relating to a change in the capitalization of the corporation, and that to the extent that he received shares subsequent to the stock option and subsequent to the capitalization any amounts which he may receive from a sale or distribution of the stock *** would be diminished by the sum of $9.00 per share.”

Accordingly) the court ruled that plaintiff’s 200 shares of Federal stock were subject to a set-off of $9 per share or a total of $18,000, payable to defendants. Thereafter, upon denial of plaintiff’s motion to reconsider, the court further found that the option agreements were plain and unambiguous on their face.

Opinion

On appeal, plaintiff asserts that the pleadings, depositions, affidavits and exhibits clearly show that there are issues of material fact which preclude the granting of a summary judgment. We disagree.

In determining the propriety of the entry of a summary judgment, we take cognizance of the well-settled principle of law that the purpose of a summary judgment is not to try an issue of fact, rather it is to determine whether a genuine issue as to a material fact exists. (McHenry Sand & Gravel, Inc. v. Rueck (1975), 28 Ill. App. 3d 460, 461, 328 N.E.2d 679.) Pursuant to section 2 — 1005(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c)), summary judgment “shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In this regard, the opponent may rely upon reasonable inferences drawn from the materials considered on the motion. (Duffy v. Midlothian Country Club (1980), 92 Ill. App. 3d 193, 197, 415 N.E.2d 1099.) Because summary judgment is a drastic remedy, the trial court must construe the matters before it most strictly against the moving party and most liberally in favor of the opposing party (92 Ill. App. 3d 193, 197), and grant summary judgment only when the right of the movant thereto is clear and free from doubt. Sielski v. Tioga Homes, Inc. (1978), 62 Ill. App. 3d 340, 342, 379 N.E.2d 336.

In the present case, it is undisputed that defendants contributed $90,000 to the paid-in surplus of Federal. Pursuant to section 2.12 of the Business Corporation Act (Ill. Rev. Stat. 1981, ch. 32, par. 157.2 — 12), “paid-in surplus” is defined as “all that part of the consideration received by the corporation for, or on account of, all shares issued which does not constitute stated capital *** whether such paid-in surplus has been heretofore or is or hereafter created by (a) the receipt by the corporation for, or on account of, the issuance of shares having a par value of consideration in excess of the par value of such shares or (b) the allocation of any part of the consideration received by the corporation for, or on account of, the issuance of shares in a manner permitted by law ***.” Thus, as a matter of law, defendants’ contributions to paid-in surplus constituted consideration paid for their shares, effectively increasing their purchase price from $1 to $10 per share. Therefore, notwithstanding the parenthetical “that is, $1.00 per share” which immediately follows the purchase price provision in the agreement, plaintiff’s obligation to pay $10 per share arose from the purchase price provision itself which states that he must pay the same price for his shares that defendants paid for theirs. Contrary to plaintiff’s position, the parenthetical does not negate the price increase. At the time the agreement was executed, the purchase price was indeed $1 per share. However, changes in the capital structure of the corporation, anticipated by the purchase price contingency clause, rendered the parenthetical price designation obsolete.

Moreover, an analysis of the option agreement’s purchase price contingency clause further supports the trial court’s ruling. Pursuant to this clause, the option purchase price would be adjusted when a change in the shares occurred as a result of any one of eight enumerated events: reorganization, recapitalization, merger, consolidation, split-up, combination of shares, exchange of shares or a similar procedure. Defendants take the position that their contributions to paid-in surplus constituted recapitalization, which, by definition, effectuated a change in the value of shares. Therefore, an equitable price adjustment was necessary. In support of this argument, defendants cite, inter alia, United Gas Improvement Co. v. Commissioner of Internal Revenue (3d Cir. 1944), 142 F.2d 216, which defines “recapitalization” as “an arrangement whereby the stock, bonds or other securities of a corporation are readjusted as to amount, income or priority.” (142 F.2d 216, 218.) In response, plaintiff argues that “there was no reorganization, recapitalization, merger, consolidation, split-up or exchange of shares which would result in a price adjustment per share ***,” and characterizes defendants’ citations in support of their definition of “recapitalization” as “inapplicable” in that these cases concerned Federal tax laws. This is the extent of plaintiff’s argument regarding the pivotal question as to whether recapitalization occurred, an argument totally void of any citation to supporting authority. Accordingly, we deem plaintiff’s contention that recapitalization did not occur waived (Hillblom v. Ivancsits (1979), 76 Ill. App. 3d 306, 312, 395 N.E.2d 119), and concur with defendants’ position that the increased consideration paid by defendants for their shares, which increased the value of the shares, constituted a change in shares by reason of a recapitalization.

Plaintiff further argues that the conflicting intent of the parties with respect to the purchase price of the shares presents a question as to a material fact, and, thus, precludes the propriety of a summary judgment. In presenting this argument, plaintiff overlooks the fact that before a court can look to the intent of the parties to a contract, the terms of that contract or agreement must be found to be ambiguous. (Susmano v. Associated Internists of Chicago, Ltd. (1981), 97 Ill. App. 3d 215, 220-21, 422 N.E.2d 879.) In the present case, the trial court expressly found that the option agreement was clear and unambiguous on its face. On appeal, the closest plaintiff comes to refuting this finding is his argument that “any ambiguity as to the amount paid for the shares in question pursuant to the terms of the option agreement is a material fact issue which should be triable and not a question of law.” Contrary to plaintiff’s position, however, language is not rendered ambiguous simply because parties do not agree upon its meaning. (Harlem-Irving Realty, Inc. v. Alesi (1981), 99 Ill. App. 3d 932, 936, 425 N.E.2d 1354.) Accordingly, we conclude that, based on the facts before it, the trial court properly determined that, as a matter of law, a change of shares occurred by recapitalization, necessitating an equitable adjustment of the option purchase price.

Therefore, we affirm the order of the circuit court of Cook County granting defendant’s motion for summary judgment.

Affirmed.

SULLIVAN and MEJDA, JJ., concur.


author: JUSTICE LORENZ

text:
    RONALD J. SABALLUS, Plaintiff-Appellee and Cross-Appellant, v. VERNON H. TIMKE, Defendant-Appellant and Cross-Appellee.
    First District (5th Division)
    No. 82—2131
    Opinion filed December 30, 1983.
    Rehearing denied March 12, 1984.

      Greenberger, Krauss & Jacobs, Chartered, of Chicago (Stephen A. Cohen and Cynthia Gray, of counsel), for appellant.
    Burditt & Calkins, of Chicago (C.D. Kasson, Robert G. Epsteen, and P. Scott Polisky, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial in which the trial court found that plaintiff’s acts constituted events of default under the terms of plaintiff’s and defendant’s partnership agreement, the trial court awarded plaintiff $53,682.60 as the value of plaintiff’s interest in the partnership. Defendant appeals, and plaintiff cross-appeals from the court’s findings.

In his appeal defendant argues that the trial court erred: (1) in not imposing a constructive trust over two lots fraudulently withheld from the partnership by plaintiff, and not including their value in the settlement of accounts; (2) in refusing to deduct $137,475 from the purchase price of plaintiff’s interest in the partnership; (3) in deducting $72,868.77 from the purchase price in the calculation for the settlement of accounts; (4) in denying him attorney fees; (5) in denying him interest on monies appropriated from partnership funds; (6) in denying him punitive damages; and (7) in denying him prejudgment interest.

In plaintiff’s cross-appeal, he argues that the trial court erred by (1) terminating his interest in the partnership; (2) including certain items in the settlement of accounts calculation, and (3) awarding certain costs to defendant.

Relevant to the disposition of this case are the following facts.

Plaintiff, a general contractor and president of The Saballus Companies, Inc., in 1977 contracted to purchase for $288,000 four parcels of land in Oak Brook, Illinois. The purchase agreement was subject to several contingencies, principally, obtaining a building permit for the construction of a three-story office building. He made a $15,000 down payment and obtained a loan for the balance. Upon securing the necessary permits and preliminary financing commitments, he began construction of the building in July 1977 and supervised it to its completion. Pursuant to the partnership agreement, he also undertook securing tenants and leaseholds at no profit to The Saballus Companies.

On September 14, 1977, plaintiff conveyed Parcels A and B, two of the four original lots into a land trust at La Grange State Bank and retained Lots 1 and 2 in a land trust at Northwest National Bank. Defendant, a real estate developer whom plaintiff had met that August and who had agreed to forming a 50-50 joint venture, borrowed $300,000 from La Grange State Bank and made the following payments to plaintiff totaling $315,594.66: (a) $273,000 in principal on the loan; (b) $4,974.66 in interest due; (c) $36,500 as a standby fee, and (d) $1,120 for tree removal and a sign.

Subsequently, he and defendant entered into a partnership agreement, effective November 1, 1977, which provided inter alia that the partnership would acquire certain real estate described in exhibit No. 1 attached thereto and would improve it with a three-story office building known as “Midwest Plaza North.” Plaintiff agreed to transfer the two lots described in exhibit No. 1 in the partnership agreement into the partnership land trust at its “original cost” of $288,000.

They further agreed as follows: (1) each would own a 50% interest in the partnership and make an initial capital contribution of $150,000 in cash or property; (2) each would advance, when due, his pro rata share of all costs and expenses with respect to the operation of the partnership and the ownership of any partnership property; (3) defendant, however, would be obligated to loan plaintiff up to $100,000 during the interim loan period, and, if this amount exceeded $100,000 the default provisions of the agreement would apply; (4) upon default, the nondefaulting partner had the right to terminate the defaulting partner’s interest without effecting a termination of the partnership upon written notice and opportunity to cure; and (5) in the event of such termination, the nondefaulting partner would be required to purchase the defaulting partner’s interest in the partnership pursuant to a stated formula. Plaintiff assigned his beneficial interest in the land trust at La Grange State Bank to the partnership on November 18, 1977.

Various financial transactions between the partners followed and each was shown on the books as having made an initial capital contribution of $147,691. Pursuant to the agreement, the partners continued the construction of Midwest Plaza North and sought, in turn, construction, interim, and permanent financing (i.e., the mortgage or “end loan”) for the building.

After receiving funds from the construction loan, both partners withdrew $77,131 from the partnership capital account which reduced their respective cash investment to $70,560. For reasons not relevant to our discussion, defendant loaned plaintiff $75,000 during this interim loan period.

Following completion of the office building in June 1978, plaintiff continued to arrange for the leasing of office space and building maintenance until February 1979.

The instant appeal arises from the partners’ dispute over each other’s conduct in the months preceding the end loan closing for the office building which was scheduled for January 11, 1979. Testimony adduced at trial indicates that the $1,700,000 construction loan for the building, provided by Elmhurst National Bank in conjunction with another bank, would be refinanced at the end of the construction period by Percy Wilson Mortgage and Finance Company (Percy Wilson), as agent for the permanent lender, the Mutual Benefit Life Insurance Company, which issued a commitment to provide the $1,825,000 end loan for the building. Neither party dispute that this commitment was due to expire on January 11, 1979, or that most of the end loan funds were later utilized to pay off the balance of the construction loan.

As was typical for the financing of a newly constructed building, the permanent lender required the partnership, as mortgagor, to deposit additional money at the time of the end loan closing as security in the event that the end loan did not provide sufficient funds to pay off the construction loan or provide a title indemnity fund for various construction related liens.

At trial, plaintiff testified that in the fall of 1978 the partnership received a document from the permanent lender indicating all the requirements for end loan closing. He stated that he met with defendant’s employee, Joan Vella, in October or November, 1978, to discuss the amount of money, if any, needed for the end loan closing because the partnership books were kept by defendant. On direct examination, the following colloquy occurred:

“Q. What do you recall of discussions regarding monies that might be due at the end of the end loan closing?
A. Well, the numbers were very confusing. The numbers that would be used at the end loan closing varied all the way from we wouldn’t require anything to *** $400,000. *** Well, I couldn’t comprehend how that amount of money would be required, and I asked for a more accurate accounting to demonstrate exactly what funds would be required. ***
Q. Did Miss Vella provide those records on that accounting at that meeting?
A. No.
Q. Did you make any additional requests for such an accounting [to the Timke office] prior to the end closing?
A. Yes. ***
Q. Did you receive [these] records ***?
A. No.
Q. Have you ever received such records?
A. Yes. *** When the deposition documents were submitted [during the lawsuit].”

Plaintiff further testified that in late December of 1978 he informed defendant by telephone that he would not provide any funds unless he received an accurate accounting. Defendant responded that his office was working on the accounting and not to worry about the funds for the closing because he would furnish them.

On January 9, 1979, the permanent lender advised the partnership that based upon figures provided by defendant, $274,950 would be needed to fund the end loan. It is undisputed that defendant knew plaintiff was in Hawaii during this time and when contacted there by the vice-president of his company, plaintiff testified that he then telephoned to inform defendant that he would be unable to contribute any monies for the end loan closing two days later.

On January 11, 1979, defendant advanced $277,000 ($275,000 plus interest) to meet the end loan funding requirement and by letter dated January 12, 1979, defendant notified plaintiff that he was electing to terminate plaintiff’s interest in the partnership due to plaintiff’s failure to pay one-half of the amount advanced at the end loan closing.

Subsequently, plaintiff withdrew $64,162 on February 21, 1979, and $120,475 on March 8, 1979, from the money deposited by defendant at the end loan closing into the partnership’s indemnity account at the Chicago Title Insurance Company, and deposited these sums into an account he established at the Bank of Elmhurst. Plaintiff, the sole signator on this account, alter deposited an additional $2,182.56 in partnership funds and of the $186,819.56 in partnership funds he deposited, made the following payments: (1) $146,715.34 for various partnership obligations; (2) $25,194.70 for payments due to The Saballus Companies as general contractor; and (3) $67.18 for check-printing costs.

With a $14,842.24 balance remaining on December 31, 1979, plaintiff paid his wife $14,800 as a real estate brokerage commission for her services in procuring a lease to the General Services Administration and closed the account after retaining the remaining balance of $42.34.

On February 20, 1979, plaintiff filed a two-count complaint against defendant seeking, inter alia, an accounting and the appointment of a receiver. Count III of the amended complaint sought dissolution of the partnership and alleged that the partnership had had sufficient funds to fund the end loan without a contribution from the partners. Subsequently, count IV was added wherein plaintiff alleged that he had not breached the agreement since the $275,000 that defendant had paid to the fund the end loan was a loan to the partnership. During discovery, defendant learned that four lots had been included in the original purchase price of $288,000.

Following a bench trial, the trial court found the following acts committed by plaintiff to be “events of default” under article 14.01 of the agreement that authorized defendant to terminate his partnership interest:

(1) plaintiff’s failure to contribute his pro rata share for the end loan closing;

(2) plaintiff’s establishment of an account at the Bank of Elmhurst under his sole control with $186,819 in deposits into and withdrawals from the account of partnership funds without defendant’s consent;

(3) the payment of $14,800 to plaintiff’s spouse as a purported real estate commission;

(4) plaintiff’s failure to disclose to defendant that the purchase cost of $288,000 included two parcels of land in addition to those conveyed to the partnership.

The trial court declared plaintiff’s partnership interest to have been terminated as of January 22, 1979, and entered judgment in favor of defendant. The court awarded plaintiff $83,792.34 as the value of his share of the terminated interest in the partnership. The court calculated this amount by determining that plaintiff’s total cash investment was $72,868.77 and subtracting that sum from plaintiff’s debts of $137,475 for the end loan share, $14,800 for the payment to plaintiff’s wife, $4,276.59 for a payment made to The Saballus Companies after termination of plaintiff’s partnership interest on January 22, 1979, $67.18 for check printing costs, and $42.34 for the balance remaining at the Bank of Elmhurst account which plaintiff had retained upon closing the account.

Defendant’s requests for interest, punitive damages, attorney fees, and the imposition of a constructive trust on the unincluded parcels, or the deduction of their value in the calculation on the settlement of accounts were denied.

Following a hearing on plaintiff’s post-trial motions, the decree was modified so as to not include $137,475 as a partnership debt of plaintiff. Judgment against defendant was entered in the amount of $53,682.66.

Defendant appeals from that portion of the modified decree which denied him: (1) compensatory and punitive damages; (2) imposition of a constructive trust on the two parcels of land plaintiff withheld from the partnership and retained in his own land trust; (3) interest; (4) attorney fees; and which (5) excluded $137,475 from the calculation in the settlement of the accounts.

Plaintiff cross-appeals from (1) the termination of his partnership status, (2) the inclusion of certain items in the settlement of accounts calculation, and (3) the award of $17 in costs to defendant.

Opinion

The seminal question here is whether the trial court erred in terminating plaintiff’s interest in the partnership. We initially point out that the briefs of both parties center on the question of whether the trial court properly calculated the purchase price of plaintiff’s interest in the partnership. However, in view of the equitable issues involved, we have necessarily examined the record as a whole to determine whether defendant’s right to terminate plaintiff’s interest in the partnership and pay $53,682.60 for plaintiff’s interest in the two-man partnership, whose assets were in excess of $2.1 million at the time of trial, was clearly and unequivocally shown.

The Illinois Partnership Act is based on the Uniform Partnership Act (the U.P.A.). Under the U.P.A. (Ill. Rev. Stat. 1981, ch. 10friz, par. 1 et seq.) a partnership is defined as “an association of two or more persons to carry on as co-owners a business for profit.” The requisites of a partnership are (1) the parties have joined together to carry on a trade or venture for their common benefit; (2) each contributes property or services; and (3) each has a community of interest in profits. Rizzo v. Rizzo (1954), 3 Ill. 2d 291, 120 N.E.2d 546.

While written articles of agreement are not necessary to create a partnership (Allen v. Amber Manor Apartments Partnership (1981), 95 Ill. App. 3d 541, 420 N.E.2d 440), partners have the right to establish between themselves by a partnership agreement or by a dissolution agreement, their rights, duties, and obligations so far as the partnership is concerned. Meyer v. Sharp (1950), 341 Ill. App. 431, 94 N.E.2d 510.

As a general rule, a court must construe a partnership agreement as any other contract so as to determine the intent of the parties. (Estate of McKay v. Moses (1976), 35 Ill. App. 3d 458, 343 N.E.2d 45; Niehoffv. Dudley (1866), 40 Ill. 406, 408.) However, in determining the relationship of the parties under such an agreement, a court looks to substance and not to form. Maimon v. Telman (1968), 40 Ill. 2d 535, 240 N.E.2d 652.

The case at bar exemplifies the classic example of the two-man partnership in which one partner contributes only capital and no service while the other contributes services, but no capital. As explained in H. Reuschlein & W. Gregory, Handbook of the Law of Agency and Partnership 267 (1979), “Once a partnership has been formed, certain consequences follow as to the relations between the partners. First, the relationship of partners is that of mutual agents ***. Second, the relationship is one of a fiduciary nature. Third, as to the specifics, the U.P.A. provides a number of rules which apply in the absence of contrary agreement. In sum, partners are free to vary many aspects of their relationship inter se, but they are not free to destroy its fiduciary character.”

I

We first consider defendant’s argument that we should hold as a matter of law, that the following actions by plaintiff constituted a repudiation of the partnership agreement and termination of his interest: (1) plaintiff’s failure to contribute his pro rata share for the end loan closing; (2) plaintiff’s establishment of a partnership account at the Bank of Elmhurst under his sole control with $186,689 in deposits into and withdrawals from the account without defendant’s consent; (3) the payment of $14,800 to plaintiff’s wife as a real estate commission and (4) plaintiff’s failure to disclose to defendant that the purchase cost of $288,000 originally included tow parcels of land in addition to those conveyed to the partnership.

After considering all the evidence, the trial court concluded that plaintiff had breached the agreement in these respects and applied the forfeiture and purchase price formula provisions of article 14.

Initially, we have examined the respective fiduciary obligations of the partners in the case at bar. It is clear from an examination of the record that the nature of the business for which the co-partnership was created was such that not only was capital, skill and labor required to carry on the business, but that an absence of mutual confidence and good faith would force the co-partnership to cease.

Fiduciary duties between partners have been likened to “a sliding scale of obligations which depend on a variety of factors,” and therefore a court must examine the relationship between the parties in each case so as to ascertain the standard to be applied to determine whether there has been a breach of a partner’s fiduciary duty. A. Conard, R. Knauss & S. Siegel, Agency, Associations, Employment, Licensing & Partnerships 483 (2d ed. 1977).

While defendant persistently argues on appeal that plaintiff breached their contractual agreement by failing to provide a pro rata share of the end loan requirement and must suffer the consequences of having his 50% partnership interest terminated, the circumstances surrounding the end loan indicate that defendant himself breached his fiduciary duty by failing to render information on demand and to render an accounting to his partner.

Defendant, as financial captain of the venture, retained possession and control of the partnership books. As clearly, enunciated elsewhere, “[W]here one partner takes on the role of a ‘manager’ or ‘director’ his obligation to deal fairly and openly and disclose completely is heightened. It has been aptly described in the following terms: ‘Where one of the members acts as “captain” or “manager” of the venture the necessity for a full disclosure becomes more acute and rests more heavily on him.’ ” (Application of Lester (1976), 87 Misc. 2d 717, 723, 386 N.Y.S.2d 509, 513, partially quoting from Libby v. L. J. Corp. (D.C. Cir. 1957), 247 F.2d 78, 82, see Beane, The Fiduciary Relationship of a Partner, 5 J. Corp. Law 483, 491 (1980).) Moreover, our supreme court has held that when there is a question of breach of fiduciary duty of a managing partner, all doubts will be resolved against him and the managing partner has the burden of proving his innocence. Bakalis v. Bressler (1953), 1 Ill. 2d 72, 78, 115 N.E.2d 323.

As a general rule, one of the ordinary duties of partners is to keep true and correct books showing the firm accounts, such books being at all times open to inspection by all members of the firm. (See 60 Am. Jur. 2d Partnership secs. 123, 192 (1972).) Section 19 of the U.P.A. (Ill. Rev. Stat. 1981, ch. l00½, par. 19) expressly provides that “The partnership books shall be kept, subject to any agreement between the parties, at the principal place of business of the partnership, and every partner shall at all times have access to and may inspect and copy any of them.” Partners also must render on demand true and full information of all things affecting the partnership to any partner. Ill. Rev. Stat. 1981, ch. 106½, par. 20.

Under the U.P.A. therefore, any partner has the right to a formal accounting as to partnership affairs if he is wrongfully excluded from the partnership business or possession of its property by his co-partners, or “[w]henever other circumstances render it just and reasonable.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 106½, par. 22.) Thus, a wrongful exclusion, or “freeze-out,” of one partner by a co-partner from participation in the conduct of the business or from the management of the partnership business, will be grounds for judicial dissolution. (Heyman v. Heyman (1904), 210 Ill. 524, 71 N.E. 591.) In Heyman, our supreme court stated that “[ajmong the acts and circumstances, which had been deemed sufficient to justify a decree of dissolution, are the following: ‘Excluding a partner from any voice in the management of the business, and disregard of his advice and wishes; irreconcilable differences and personal ill-will between the partners, rendering co-operation in the business impossible; refusal to keep accounts open to the co-partners, to account at reasonable times, and to pay over profits as agreed.” Heyman v. Heyman (1904), 210 Ill. 524, 541.

In the instant case, the record reveals that (1) defendant, a sophisticated entrepreneur and real estate developer, provided the figures used to estimate the end loan debt to the permanent lender; (2) defendant reassured plaintiff until the time of the end loan closing that he would take care of the funding; (3) while the nature of defendant’s $275,000 advance is much-disputed, it is in fact listed on the partnership books as a note payable to defendant, and may well be characterized as a loan to the partnership; (4) it is apparent from the record that certain partnership funds available to cover the end loan debt, from both the partnership funds and from the secondary source of the partners’ joint venture, the Timke/Saballus Joint Venture, were not utilized to fund the end loan; and (5) plaintiff, who repeatedly requested access to the partnership books kept by defendant in order to determine the accuracy or source of these figures, was both “put off” and denied access to the partnership books, by either defendant or his agents, prior to the end loan closing.

Although we are cognizant that plaintiff was responsible for most of the services required to construct, develop, léase and maintain their project, Midwest Plaza North, it is also clear that (1) plaintiff did not disclose to defendant that four lots were included in the original purchase price of $288,000; and (2) although he did pay partnership obligations out of the Bank of Elmhurst account, he did not obtain defendant’s consent in order to establish the account.

Thus, although it would be difficult to decide which of the parties is most in the wrong, we believe that equity demands a decree of dissolution in this case, where, as here, the relations existing between the partners render it impracticable for them to conduct business beneficially. Mandell v. Centrum Frontier Corp. (1980), 86 Ill. App. 3d 437, 407 N.E.2d 821.

Our determination that a dissolution and accounting and not a termination of plaintiff’s partnership interest is proper is further buttressed by the equitable maxim that forfeitures are not favored by the law (Harlev v. Sanitary District (1903), 107 Ill. App. 546), and, a party “will be relieved from a technical forfeiture of rights under a contract if injustice results from its enforcement” (Krentz v. Johnson (1976), 36 Ill. App. 3d 142, 145, 343 N.E.2d 165) where such right is not clearly and unequivocally shown. Richards v. Liquid Controls Corp. (1975), 26 Ill. App. 3d 111, 325 N.E.2d 775.

II

We next address defendant’s contention that a constructive trust should be imposed upon the two withheld lots pursuant to section 21 of the U.P.A. (Ill. Rev. Stat. 1981, ch. 106½, par. 21), which ordinarily requires a partner to hold any profits derived by him without the consent of the other partner as a trustee for the partnership.

The record discloses that these two lots were sold at a sheriff’s sale in December 1982 to satisfy a judgment in favor of defendant himself on the $75,000 note payable to him by plaintiff, and at no time has defendant argued that this sale was fraudulent. While we do not condone plaintiff’s nondisclosure, we find that the doctrine of election of remedies is applicable, where, as here, a party would receive a double recovery (District 141, International Association of Machinists v. Industrial Com. (1980), 79 Ill. 2d 544, 550-51, 404 N.E.2d 787, 789). Consequently, we find that it would be inequitable to again include their value in the settlement between the parties.

III

Finally, we note both parties’ arguments concerning the propriety of the $14,800 payment to plaintiff’s wife, a licensed real estate salesman, for services rendered in procuring a lease worth approximately $1,000,000 from the General Services Administration.

While we do not reach the merits of the issue we recognize the provisions of the relevant statute (Ill. Rev. Stat. 1981, ch. Ill, par. 5727(d)), which states that a real estate commission is recoverable only if a licensed real estate broker is involved. We therefore express no opinion as to the merits of this matter in the absence of further proceedings.

IV

In light of our decision, we do not reach the other issues raised on appeal. For reasons we have previously discussed, we find that portion of the judgment which terminated plaintiff’s interest in the partnership and calculated the purchase price of said interest must be reversed and remanded for a complete dissolution, accounting and winding up of the partnership affairs consistent with the provisions of sections 29 through 43 of the U.RA. (Ill. Rev. Stat. 1981, ch. IO6V2, pars. 29 through 43). The judgment is affirmed as to the issues relating to (1) interest, (2) attorney fees and costs, and (3) punitive damages.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part and reversed in part; and remanded.

Affirmed in part, reversed in part, and remanded.

WILSON, P.J., and MEJDA, J., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD LYNCH, Defendant-Appellant.
    First District (1st Division)
    No. 80—1465
    Opinion filed February 21, 1984.
    Steven Clark and Bruce Mosbacher, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James Veldman, and Mary Ann Sullivan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendant Reginald Lynch was found guilty of armed robbery and sentenced to 20 years’ imprisonment. Defendant now appeals claiming that: (1) he is entitled to a new sentencing hearing where the trial court imposed the 20-year term without considering a presentence investigation report as required by section 5— 3 — 1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—1); (2) the trial court abused its discretion in sentencing defendant to a term of 20 years’ imprisonment.

The sufficiency of the evidence in this case is not disputed. Our review of the record reveals that on March 30, 1979, a robbery occurred at T and K Photo in Chicago. Pam Allen, an employee of the store was the only eyewitness. Allen testified that defendant and two other men entered the store and one man requested film from Allen. At that same moment, the two men with defendant pulled out guns, demanded money and told Allen to open the door to the shop area. After Allen informed the men that she could not open the door, they jumped over the counter and defendant took approximately $300 from the cash register. Police officer James Gildea investigated the robbery and testified that Allen identified defendant, from a group of six photographs, as being one of the perpetrators of the offense. Gildea later observed Allen pick defendant out of a lineup. Gildea also testified as to defendant’s post-arrest admission statement. The defense called no witnesses. Defendant was found guilty on May 2, 1980, and sentenced on May 16, 1980. Defendant was not present at either his trial or at the sentencing hearing. At the sentencing hearing, the prosecutor noted that no presentence investigation report was available and that the trial court did not order one. A certified copy of defendant’s prior conviction for robbery was presented to the trial court. The trial court then sentenced defendant to a 20-year prison term.

Defendant first contends that he is entitled to a new and proper sentencing hearing since no presentence investigation report was considered by the trial court in imposing the 20-year sentence. Defendant relies on People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416, to support his contention.. In Youngbey, the Illinois Supreme Court noted that “[t]he presentence report *** is for the enlightenment of the court, as well as for the benefit of the defendant.” (82 Ill. 2d 556, 565, 413 N.E.2d 416, 421.) Therefore, the court held that being a legislative requirement and not a personal right of defendant, the report could not be waived by defendant unless both parties agreed to the imposition of a specific sentence. People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416; Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—1.

The State counters by asserting that the lack of a presentence report is due to defendant’s failure to make himself available for an interview. The State also claims that since the majority of information contained in a presentence report is obtained from defendant, it would have been a mere formality for the report to have been prepared without defendant’s cooperation. The State contends that defendant’s prior conviction would have been the only information contained in the report and therefore was merely a procedural formality. The State urges this court to adopt the position that section 5— 3 — 1 was not intended to apply to cases where a defendant is tried in absentia pursuant to section 115 — 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4.1). The State asserts that where a defendant voluntarily absents himself from his trial he thereby waives his constitutional right to be present at all stages of trial, including the sentencing hearing. (See People v. Collins (1982), 109 Ill. App. 3d 1076, 441 N.E.2d 935.) The State further argues that the courts have consistently found defendant’s objections to insufficient presentence reports waived where defendants were tried in absentia and failed to object to deficiencies in the report. (People v. Collins (1982), 109 Ill. App. 3d 1076, 441 N.E.2d 935; People v. Lane (1980), 91 Ill. App. 3d 827, 414 N.E.2d 1249.) In Lane, the presentence report contained only defendant’s prior felony convictions and probation status at the time of trial. There, the court found the defendant’s objections waived on appeal for failure to object to the deficiencies in the report at trial. Here, no such report was presented at trial to which defendant could have objected and the State’s reliance on the Lane case is misplaced.

We now turn to an examination of the relevant statute involved in this case. Section 5 — 3—1 provides in pertinent part as follows:

“A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.
However, the court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant’s history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment.” Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—1.

In People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416, the court examined the issue whether a presentence report is a mandatory requirement of section 5 — 3—1. The court noted the legislature’s use of the mandatory word “shall” coupled with the negative limitation “shall not be sentenced.” The court concluded:

“Thus, this section *** specifically prohibited a judge from sentencing one convicted of a felony unless a written presentence investigation report was presented to and considered by the court. We cannot construe this requirement as other than mandatory. The action proscribed by the use of the negative ‘not’ renders this requirement much more plainly mandatory than if the requirement would simply have read ‘the court shall consider a presentence report of investigation before sentencing.’ ” 82 Ill. 2d 556, 562, 413 N.E.2d 416, 420.

We find the holding in Youngbey to be controlling in this case. See also People v. Davis (1982), 93 Ill. 2d 155, 442 N.E.2d 855; People v. Johnson (1981), 97 Ill. App. 3d 976, 424 N.E.2d 855.

Notwithstanding Youngbey, the State argues that requiring a presentence report in this case would have been a mere formality since the information that would have been included in the report was presented at the trial. The above argument, and the State’s previous arguments might be persuasive except that they attempt to avoid the clear intent of the statute as expressed by the Supreme Court in Youngbey: “The presentence report *** is for the enlightenment of the court, as well as for the benefit of the defendant *** [and therefore] cannot be waived.” (82 Ill. 2d 556, 565, 413 N.E.2d 416, 421.) The cases relied on by the State are not applicable to the instant case since in those cases a presentence report was considered by the trial court as mandated by section 5 — 3—1. (See People v. Collins (1982), 109 Ill. App. 3d 1076, 441 N.E.2d 935; People v. Lane (1980), 91 Ill. App. 3d 827, 414 N.E.2d 1249.) Additionally, section 115 — 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4.1), which authorizes a court to try a defendant in absentia, does not provide support for the State’s claim that a defendant waives his right to a presentence report when he voluntarily absents himself from trial.

It necessarily follows that based on Youngbey, this cause must be remanded for resentencing pursuant to section 5 — 3—1. In light of this holding, defendant’s second issue regarding the trial court’s abuse of discretion in sentencing defendant need not be considered.

The sentence of the circuit court is vacated and the cause remanded for proper sentencing in accordance with said statute.

Sentence vacated; cause remanded.

BUCKLEY, P.J., and GOLDBERG, J., concur.