author: JUSTICE STOUDER

text:
      In re ESTATES OF CHERRY WHITTINGTON et al. (Jean Lyons, Guardian of the Person and Estate of Richard Raymond Whittington, a Minor, Respondent-Appellant, v. Daniel Bute, Conservator of the Estate of Cherry Whittington, an Incompetent, et al., Petitioners-Appellees).
    Third District
    Nos. 3-83-0519, 3-83-0552, 3-83-0701 cons.
    Opinion filed April 25, 1984.
    Rehearing denied June 14, 1984.
    Kenneth A. Kozel, of Petz & Kozel, P.C., of La Salle, for appellant.
    Kevin D. Kelly, of La Salle, and Sidney Z. Karasik, of Chicago, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises as a result of a conservatorship and guardianship both of which were established after Cherry Whittington shot and killed her husband, on May 2, 1978. In December of 1978 Cherry Whittington was found not guilty by reason of insanity and was sent to the Zeller Mental Health Center. At the time of the shooting Richard Whittington, Cherry’s only child, was two months old, and he immediately went to live with his great aunt, Jean Lyons, who was later appointed his guardian. Daniel Bute was appointed the conservator of Cherry Whittington and of her estate.

In November of 1979, Cherry was released from Zeller and immediately was admitted to Monroe House, a halfway house in Peoria, for treatment. In 1981, Cherry married Howard Price, who had employed her as a housekeeper. Soon after her marriage she filed a petition in the circuit court of La Salle County to have her conservatorship terminated and the guardianship of her minor child Richard terminated and his custody restored to her. The trial judge denied her petition.

On March 8, 1983, a new judge was assigned to the conservator-ship case. On March 18, 1983, Cherry again filed a petition for termination of the guardianship of Richard and her conservatorship. Three days later Cherry filed an identical petition together with a letter asking that the guardianship and conservatorship matters be consolidated. On May 9, 1983, Cherry filed another petition to terminate the guardianship and to have Daniel Bute discharged and her conservator-ship terminated. On May 24, 1983, a fourth petition was filed this time by Daniel Bute. This petition was only a petition to terminate the conservatorship and Cherry was the only person notified of the hearing set for June 3, 1983. Cherry, her husband Howard Price, Daniel Bute and a neighbor of the Prices appeared on June 3. The conservator submitted a letter from a psychiatrist who had examined Cherry only twice, once in 1978 shortly after the shooting and once in April of 1983. Based primarily upon the self-serving statements of these parties, the judge ordered the conservatorship terminated. On August 1, 1983, Jean Lyons, Richard’s guardian, filed a motion to reconsider which was denied.

On July 1, 1983, Cherry filed a petition to terminate the guardianship and restore custody. Jean Lyons then filed a motion to dismiss, and Cherry filed a motion for summary judgment. On August 22, 1983, the trial judge denied Lyon’s motion to dismiss and granted Cherry’s motion for summary judgment. The judge, however, stayed execution of the judgment which restored custody to Cherry Whittington Price pending the outcome of this appeal. The order granting termination of the conservatorship of Cherry Whittington, the order granting motion for summary judgment terminating the guardianship of Richard Whittington and restoring custody to Cherry Whittington Price and the order staying from execution are all being appealed and are all consolidated in this appeal.

The appellant, Jean Lyons, guardian, raises as the first allegation of error the failure of the trial court to notify her of the hearing at which the conservatorship of Cherry Whittington was terminated and she was declared to be competent. The appellee argues that the statutory provisions for notice were fully complied with. Since the guardianship and conservatorship commenced in 1978 the statute has undergone substantial revision. The provision governing notice in a proceeding to restore competency in effect in 1978 was section 11 — 14 of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. 1101/2, par. 11—14). Subparagraph (b) provided as follows:

“(b) Notice of the hearing on any petition to be adjudged competent or for revocation of letters of office shall be given to the representative and to such other interested person as the court directs ***.”

We agree with the appellee that this section is no longer in effect, but we do not find this factor alone determinative of the notice issue. The new section 11a — 20 (Ill. Rev. Stat. 1983, ch. 1101/2, par. 11a — 20) does indeed provide that

“(c) Notice of the hearing on a petition under this Section * * * shall be given to the ward, unless he is the petitioner, and to the guardian ***.”

However, where the present statute describes the duties of the guardian of the person under section 11a — 17 and of his estate, section 11a — 18, the statute specifically states that the guardian “shall have custody of the ward and his minor and adult dependent children; shall procure for them and shall make provision for their support, care, comfort, health, education and maintenance ***” (Ill. Rev. Stat. 1981, ch. 1101/2, par. 11a — 17(a)) and “shall apply the income and principal of the estate so far as necessary for the comfort and suitable support and education of the ward, his minor and adult dependent children ***” (Ill. Rev. Stat. 1983, ch. 1101/2, par. 11a — 18(a)). Therefore, if the conservatorship and guardianship had arisen under the present statute, the guardian of Cherry Whittington would also have had the care and custody of her minor child, Richard, and would have been entitled to notice under the statute.

Furthermore, the termination of the conservatorship and the termination of the guardianship of Richard had been consolidated. In fact, Cherry Whittington’s attorney had asked that the two matters be heard together and by the same judge. We agree that these matters belonged together. The initial petition filed in March of 1983 was a consolidated petition, and certainly under those circumstances Jean Lyons as guardian of- Richard Whittington would have been entitled to notice. Also, by interpreting the notice provision of section 11a — 20 broadly, we avoid a possible due process violation. Because the adjudication of competency at the first hearing directly affected the outcome of the subsequent proceeding to terminate the guardianship of the child, we find that the trial judge erred in strictly construing the notice provision of section 11a — 20.

We note further that the judge considered and ruled upon Jean Lyons’ motion for reconsideration of the termination of the conservatorship even though he found that she was not a proper party to the proceeding. This action on the part of the trial court was clearly inconsistent with the court’s interpretation of the notice provision of the statute. We, therefore, find that Jean Lyons, guardian of Richard Whittington, was entitled to notice of the hearing for termination of Cherry Whittington’s conservatorship and would have received notice had the conservatorship arisen under the present statute.

The appellant, Jean Lyons, has also appealed from the decision to terminate the guardianship of Richard Whittington. We agree -with appellant that the trial court should not have granted the appellee’s motion for summary judgment. Summary judgment will not be granted when there is a genuine issue of material fact. In this case even the appellee’s affidavits were contradictory. Cherry Whittington stated that she had not had therapy nor had she taken medication “for a long time,” while the affidavit of Dr. Lee states that he saw her early in 1983 and prescribed medication for her at that time. Furthermore, in Lyons’ affidavit she stated that Howard Price, Cherry’s husband, had had a drinking problem for 25 years and attached exhibits from medical records which indicate that Cherry feared Howard’s drinking bouts. This hardly suggests that the Price’s portrayal of domestic euphoria was exactly as they had averred.

On several occasions during this proceeding the judge referred to what he called a presumption that a parent has first call upon the custody of a child. The Illinois Supreme Court, however, has frequently stated the standard in Illinois in custody matters as the “best interest of the child” standard. Fitness of the parent is only one element to be considered in determining what is in a child’s best interest. In this case, the only evidence before the court had to do with Cherry’s fitness. There was no evidence suggesting that Richard was anything but healthy, well adjusted and happy living with Jean Lyons. The fact is that Richard had never known another home and Cherry was for all practical purposes a stranger to him.

In People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 247 N.E.2d 417, the Illinois Supreme Court awarded custody to a young boy’s grandfather in a similar situation. The court considered along with other testimony the testimony of a child psychiatrist and determined that considering all of the circumstances “it was not conducive to the child’s best interest to remove him from a stable and adequately wholesome environment for the apparently primary purpose of placing him with his natural father who was for all practical purposes a stranger.” (42 Ill. 2d 201, 211.) We do not find that the circuit court applied the correct standard in awarding custody to Cherry Whittington because the trial judge considered only evidence as to the fitness of the natural mother and not evidence of what was in the best interest of the child. We commend the trial judge for granting stay of execution so that this case could be properly reviewed.

We, therefore, reverse both decisions of the circuit court of La Salle County and remand this case for proceedings consistent with our opinion in this matter.

Reversed and remanded.

SCOTT and HEIPLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT PRESIDING JUSTICE STOUDER,

license: Public Domain

text:
    FRANCIS SEXTON, d/b/a Sexton Engineering Service, Plaintiff-Appellant, v. KENNETH D. BRACH, d/b/a Brach Investment Properties, et al., Defendants-Appellees.
    Third District
    No. 82—682
    Opinion filed March 27, 1984.
    Modified on denial of rehearing June 15, 1984.

      STOUDER, P.J., dissenting.
    Craig M. Armstrong, of Ottawa, for appellant.
    James A. Lanuti and Joseph E. Lanuti, both of Lanuti, Martin & Lanuti, of Ottawa, and Daniel H. Pappas, of Niles, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

This appeal arises from an action for professional services filed in the circuit court of La Salle County by Francis Sexton, d/b/a Sexton Engineering Service. Named as defendants were Kenneth D. Brach, d/b/a Brach Investment Properties, Leonard Kemnetz and Robert Barker. The circuit court awarded judgment for the plaintiff against defendant Barker, who failed to appear and defend. The circuit court dismissed the action against defendants Brach and Kemnetz holding that the statute of limitations (Ill. Rev. Stat. 1981, ch. 83, par. 16) was a bar to recovery. The plaintiff Sexton seeks our review of that determination asserting that the circuit court was in error.

In the summer of 1972, defendant Kemnetz and defendant Barker entered into a joint venture agreement to purchase and then develop a tract of land in excess of 300 acres in La Salle County to be known as the “Glenwood Farm” subdivision. In furtherance of that joint venture, in August 1972, defendant Barker orally contracted with Francis Sexton to prepare an annexation plat of the “Glenwood Farm” subdivision. The surveying work for the plat was completed by Sexton in December of 1972. At that time, Sexton presented Barker with the completed plat and a statement for services in the amount of $9,223.52.

Early the following year, in February, defendant Kemnetz contracted to sell the “Glenwood Farm” property to defendant Brach. Kemnetz’ first joint venture partner, Barker, was not a party to this contract to sell. Indeed, when Barker learned of the contract to sell, he brought suit against Kemnetz and Brach alleging that his partner was defrauding him of his rights in the original joint venture agreement. That suit was fully tried and resulted in a judgment of the circuit court of La Salle County dated April 14, 1974. The circuit court’s judgment found the fraud alleged by Barker in his complaint against Kemnetz. It ordered Kemnetz to hold his one-half interest in the “Glenwood Farm” venture in a constructive trust for the benefit of Barker, subject to certain provisions relating to the payment of money by Barker to Kemnetz which were to be paid so as to compensate Kemnetz for the monies invested by him in the “Glenwood Farm” venture. Barker failed to comply with the circuit court judgment, and a supplemental order was entered denying Barker any right to participate in the “Glenwood Farm” purchase contract. A new joint venture thus arose between Kemnetz and Brach to purchase and develop the subdivision.

After the February 1973 contract between Kemnetz and Brach, Brach approached Sexton for the first time seeking additional survey work to be done on the subdivision project. Sexton was reluctant to undertake additional work, as he had not been paid for the annexation plat completed in December of 1972. Upon receiving Brach’s assurance that this bill would be paid, Sexton performed the supplementary survey work at a cost of $180. The revised survey was presented to Brach, and on May 25,1973, Brach paid $3,000 to Sexton.

No further amounts were paid on the account with Sexton, and in an effort to collect the balance of the account, Sexton brought suit as previously recounted on April 8, 1978. That suit resulted in a judgment against the first joint venture partner, Barker, but the action against Kemnetz and Brach was dismissed by the circuit court by reason of the five-year bar of the statute of limitations. The issue presented for our review is whether the statute of limitations was correctly applied by the circuit court to bar the action against Kemnetz and Brach.

Although the initial work on the annexation plat was completed in December of 1972, more than five years from the date suit was filed, the plaintiff urges that the partial payment on the account owed to the plaintiff on May 25, 1973, constitutes both a recognition by the defendants of the correctness of the account and an implied promise to pay the balance due so as to render the defendants liable to the plaintiff on the theory of account stated. Since an account stated is in the nature of a new undertaking, the plaintiff Sexton asserts that the five-year statute of limitations did not expire until May 25,1978, or just less than two months after the complaint was filed.

We believe the plaintiffs argument overlooks one necessary requirement to have a valid action for account stated. Specifically,

“[a]n account stated cannot be made the instrument to create an original liability; it merely determines the amount of the debt where liability previously existed. [Citations.] An account stated only determines the amount of the debt where a liability exists, and cannot be made to create a liability per se where none before existed. [Citation.] An action at law on an account stated lies only where there have been transactions previous to the statement of the account which created the relation of debtor and creditor. [Citation.]” (Pope County State Bank v. U.G.I. Contracting Co. (1932), 265 Ill. App. 420, 423-24; Accord: Motive Parts Co. of America, Inc. v. Robinson (1977), 53 Ill. App. 3d 935, 369 N.E.2d 119; Conley v. National House Furnishing Co. (1937), 292 Ill. App. 558, 11 N.E.2d 840.)

Since defendant Brach was not one of the original joint venture partners that contracted with Sexton for the annexation plat, he was not a party to the transaction which created the relation of debtor and creditor. Thus, he was not originally liable for the surveying work done to complete the annexation plat, and his payment on the account cannot create a liability for the balance.

The cases cited by the plaintiff do not persuade us that the rule set forth in the Pope County State Bank case is not controlling here. In Soft Water Service, Inc. v. M. Suson Enterprises, Inc. (1976), 39 Ill. App. 3d 1035, 351 N.E.2d 264, the court expressly found there was an original liability on the part of the defendant to pay the plaintiff the amount due. The case of Whitaker Farmers Grain Co. v. Soucie (1940), 306 Ill. App. 284, 28 N.E.2d 343 (abstract of opinion), is an unpublished opinion and has no binding authority as precedent. (People v. Oetgen (1978), 62 Ill. App. 3d 29, 378 N.E.2d 1355.) In Dick v. Zimmerman (1904), 207 Ill. 636, the issue of original liability is not addressed by the court; therefore, the case cannot be said to contradict the rule in the Pope County State Bank case. Likewise, we find the case of Throop v. Sherwood (1847), 9 Ill. (4 Gilm.) 92, unpersuasive. In the Throop case, a committee of four men contracted with Sherwood to build a bridge over the Fox River. A written agreement was executed by three of the four men, but not by the defendant Brink. Although Brink did not sign the written agreement, his name was inserted in the body of the writing and he afterward accepted it and acted with the others under it. The work on the bridge was commenced under the written agreement, but later it was orally modified by all of the parties, including Brink. Subsequently, suit was brought by Sherwood for money due based on an account stated. The account was not based upon the monies due under the written contract, because that contract had been orally modified, but rather was based on monies due for work and labor. Thus, it would appear that while the defendant Brink was not liable under the written contract, he was a party to the oral contract of modification. We must conclude, then, that statements made by the Throop court concerning the requirement of original liability which seemed to contradict the decision in the Pope County State Bank case, are comments not on a point in controversy and therefore lacking the authoritative force of a precedent. Mid-American Lines, Inc. v. Industrial Com. (1980), 82 Ill. 2d 47, 411 N.E.2d 254.

Finally, while Brach was not originally liable for the December 1972 statement, the defendant Kemnetz clearly was liable; however, it was not Kemnetz, but rather Brach who made the partial payment on account in May of 1973. An agent can, by payment on account, stop the running of the statute of limitations against his principal. This will not occur unless it appears that the party making the payment was the agent of the principal for that purpose. (Joseph v. Carter (1943), 382 Ill. 461, 47 N.E.2d 471.) The question of authority and agency is a fact question and a trier of fact, in this case the trial judge, apparently found that no agency existed. Indeed, there is no direct evidence in the record that Brach was acting for Kemnetz with authority to state the account with Sexton for the 1972 survey. Concededly, that authority or agency could be inferred from the record, but we cannot say that the trial court abused its discretion in failing to draw that inference from the evidence. Furthermore, we do not believe the question of agency was conclusively established as a result of the 1973-1974 litigation. It is true, the circuit court in that case entered a finding that Leonard Kemnetz and Kenneth Brach were joint venturers. However, this finding fails to establish that either venturer was the agent of the other for a particular purpose. In addition, Brach is not estopped by reason of the prior judgment to deny the very existence of an agency relationship. Although he was originally named as a defendant in the lawsuit, he was dismissed as a party prior to judgment. Estoppel by judgment is not binding on a party put out of a case by a dismissal. Miller v. Miller (1914), 263 Ill. 18, 104 N.E. 1078; Lincolnland Properties, Inc. v. Butterworth Apartments, Inc. (1978), 65 Ill. App. 3d 907, 382 N.E.2d 1250.

In reaching the conclusions we have, we are mindful of the objects underlying the statute of limitation.

“The purpose of statutes of limitation is to require the necessary litigation to be brought within such time that the particular circumstances may be proved with the utmost certainty and before adequate proof has become stale or entirely lost. Such statutes are intended to compel settlement within a reasonable time and while the truth presumably may be more easily obtained, and to afford a defendant a fair opportunity to investigate the circumstances on which liability against him is predicated while the facts are accessible.
As sometimes said, statutes of limitation are designed to prevent fraudulent and stale claims from springing up after the lapse of great periods of time and surprising parties or their representatives when all proper evidence or vouchers have been lost, or the facts have become obscure by reason of such lapse of time or the defective memory, or the death or removal, of witnesses. They are designed to afford security from stale demands, when the true state of transactions may be incapable of explanation and the rights of the parties cannot be satisfactorily investigated.
Statutes of limitation are based on the theory that the party has had a full opportunity to try his right in the courts, and that, by lapse of time and omission on his part, he has forfeited his right to assert his title in the law courts. The principal of the statute of limitations is based in part on the presumption of payment or release which naturally arises from the lapse of time.” (25 Ill. L. & Prac. Limitations sec. 2 (1956).)

In the instant case, the plaintiff Sexton completed the annexation plat in December of 1972. In 1973, he failed to pursue his claim for payment. Likewise, he failed to act in 1974, 1975, 1976, and 1977. To hold now that he forfeited his right to payment by prolonged inaction is hardly inequitable.

For the reasons set forth and in reliance on the authorities cited, we affirm the decision of the circuit court of La Salle County.

Affirmed.

ALLOY, J., concurs.

PRESIDING JUSTICE STOUDER,

dissenting:

I disagree with the majority that the circuit court properly dismissed this case based on the statute of limitations, no estoppel, no novation and no consideration. I must take exception with the trial court’s findings that (1), no joint venture relationship existed between Kemnetz and Brach (2), that Brach was a stranger to the original undertaking and (3), that Brach did not benefit from the original undertaking, because I believe that all three findings are contrary to the evidence.

I take exception to the trial court’s findings that no joint venture existed between Kemnetz and Brach because the existence of a joint venture had been determined in a previous proceeding between Barker, Brach and Kemnetz. In Barker v. Kemnetz et al., 73-8-1145-CH, the circuit court of La Salle county entered an order making the following finding

“4. That defendant, Leonard Kemnetz, owned a one-half interest in the Glenwood Ranch venture and that said venture was being operated as a joint venture between Leonard Kemnetz and Kenneth Brach ***”

In direct conflict with the former finding Judge Wagner stated in this case “The fact that some judge in a proceeding where some of these people or maybe all of them, I don’t know, were involved in a finding that there is a joint venture that existed doesn’t mean that there’s a general partnership with the power to bind the other parties by contract.” On the contrary that is exactly what the previous finding does mean. A joint venture creates a mutual agency between the parties (Bachewicz v. American National Bank & Trust Co. (1979), 75 Ill. App. 3d 252, 393 N.E.2d 652), and general partnership principles govern joint ventures.

The doctrine of estoppel by verdict mandates that this trial judge accept the finding of a previous court if the finding of a specific fact in a former proceeding is material and controlling to the decision in both cases. (18 Ill. L. & Prac. Estoppel sec. 4, at 67 (1956).) The finding that a joint venture existed in the first proceeding, the transcript of which was admitted into evidence in this case, was material and controlling because it defined the equitable interest awarded to Barker. The fact that a joint venture existed between Brach and Kemnetz is certainly material and controlling here because it is determinative of Brach’s authority to act on behalf of his partner, Kemnetz. The doctrine of estoppel by verdict applies not only to parties to the initial proceeding (Kemnetz, Barker and Brach) but to anyone with whom they were in privity. Therefore, the doctrine of estoppel by verdict mandates that this trial court recognize the joint venture relationship and the mutual agency which arose between the joint adventurers.

Admittedly there was no written agreement between Kemnetz and Brach defining their authority to act on each other’s behalf. However, when no express authority was created, the court in Soft Water Service, Inc. v. M. Suson Enterprises, Inc. (1976), 39 Ill. App. 3d 1035, 351 N.E.2d 264, looked to who benefited from the transaction and implied authority by ratification. The court stated “retaining the benefits of a transaction with full knowledge of all material facts is tantamount to ratification.” (39 Ill. App. 3d 1035, 1038, 351 N.E.2d 264, 267.) Although the trial court found that Brach did not benefit from the original survey, the testimony of Sexton certainly indicates that Brach did benefit. The survey was being used by Brach as a partner in the new Glenwood Farms joint venture for the purpose for which it was intended — to subdivide Glenwood Farms. Brach asked Sexton to do “additional” work, not to make an annexation plat. Brach obviously knew that Sexton had not been paid for the original survey, and contrary to the trial court’s findings that Brach paid $3,000 for the “additional” work alone, the evidence clearly indicates that Brach acknowledged that the entire $9,223.52 was owed Sexton and agreed to pay it all. Twice after May 25, 1973, Brach agreed to pay the balance. This certainly does not support a finding that Brach was a stranger to the original transaction, nor does it even remotely suggest that Brach did not benefit from the original survey.

Therefore, I would have reversed the trial court because Brach benefited from the original survey as a joint adventurer with Kemnetz and, therefore, had authority to act on behalf of Kemnetz in stating the account as of May 25, 1973. No original liability was thereby created and the statute of limitations did not run as to the account. Therefore, Kemnetz would certainly be liable under an account stated theory. Brach would be liable on a general contract theory because the evidence shows that in early May 1973 he entered into an agreement with Sexton whereby Sexton was to do “additional work” on the Glenwood Farms project and Brach agreed to pay for the additional work as well as pay for Sexton’s work on the original survey of which he was a beneficiary. Therefore, I believe that the trial court also erred in not finding a new contract with consideration, a finding which would have made Brach liable for all of Sexton’s work on the original survey as of May 25, 1973. The Statute of Frauds would be no bar to this oral agreement because such an oral promise must be regarded as an original undertaking when supported by new and valuable consideration and is, therefore, not merely a promise to pay the debt of another and is not within the Statute of Frauds (Oscar H. Wilke, Inc. v. Vinci (1968), 96 Ill. App. 2d 189, 237 N.E.2d 768.) Therefore, I also find the trial court’s finding that Brach’s promise was to pay $3,000 for the additional work alone totally unsupported by the evidence and contrary to the intent of the parties. In my opinion the circuit court erred in dismissing this cause at the close of plaintiff’s case.


author: JUSTICE NASH

text:
    VERNON HAJECK et al., Plaintiffs-Appellants, v. JAMES N. WYRICK et al., Defendants-Appellees.
    Second District
    No. 83—459
    Opinion filed May 15, 1984.
    Rehearing denied June 15, 1984.

      Peter D. Michling, of Weisz & Weisz, of Woodstock, for appellants.
    Duncan Jay Lanum, of McCauley, Weir, Lanum & Papp, of Harvard, for appellees.
   JUSTICE NASH

delivered the opinion of the court:

Vernon Hajeck and Grace Hajeck (plaintiff-sellers) brought this action for breach of a real estate sales contract seeking recovery of earnest money from James N. Wyrick and Suzanne K. Wyrick (defendant-buyers) and Durbin-Stovall Associates, Inc. (broker), which held the earnest deposit as escrowee. Defendants-buyers counterclaimed for return of the earnest money. The broker was dismissed from the case before trial after depositing the earnest money of $9,500 with the clerk of court. The cause proceeded to jury trial and a verdict was returned in favor of defendants-buyers for $9,500 on their counterclaim. Plaintiffs-sellers appeal from the judgment denying their motion for judgment notwithstanding the verdict or, in the alternative, a new trial.

Plaintiffs-sellers contend that the evidence established that defendants-buyers breached the real estate sales contract entered between the parties by not giving a notice required by its terms and by refusing to complete the purchase of the subject property when requested, thereby forfeiting the earnest money deposited by them. Defendants-buyers argue that the notice requirement of the contract was waived by plaintiffs-sellers’ agent, the real estate broker, and they thus did not breach its terms. Defendants-buyers also argue that principles of unjust enrichment and estoppel prevent forfeiture of their earnest deposit.

The evidence at trial disclosed that plaintiffs-sellers entered into a six-month exclusive listing agreement with the broker on July 24, 1981, for the broker to effect a sale of their 38-acre parcel of vacant farm land. The listing agreement gave the broker the exclusive right to advertise, show and sell the property and provided that the broker was to make a continued effort to sell the property and assist in financing arrangements. Plaintiffs-sellers agreed therein to conduct all negotiations through the broker and pay a commission if the broker sold the property or found a buyer ready, willing and able to purchase it. The listing agreement also provided that the broker’s “sole duty is to effect a sale of the property and he is not charged with the custody of the property, its management, maintenance, upkeep or repair.”

Through the efforts of Emily Jones, the broker’s salesperson, a real estate sales contract was entered into by the parties on August 17, 1981, wherein defendants-buyers agreed to purchase it for $105,000; they deposited $9,500 as earnest money with the broker. In its paragraph 4 the contract contained a mortgage contingency provision which provided as follows:

“This contract is subject to the condition that Buyer be able to procure within 45 days after the acceptance date a firm commitment for a *** conventional loan to be secured by a mortgage or trust deed on the real estate in the amount of $65,000.00, or such lesser sum as Buyer accepts, with interest not to exceed 12% a year to be amortized over 29 years. *** If, after making every reasonable effort, Buyer is unable to procure such commitment within the time specified herein and so notifies Seller thereof within that time, this contract shall become null and void and all earnest money shall be returned to Buyer; if Seller is not so notified, it shall be conclusively presumed that Buyer has secured such commitment or will purchase said property without mortgage financing; provided that if Seller, at his option, within a like period of time following Buyer’s notice, procures for Buyer such a commitment or notifies Buyer that Seller will accept a purchase money mortgage upon the same terms, this contract shall remain in full force and effect.” (Emphasis in contract.)

The contract further provided that the time for closing would be “on October 1, 1981, or before, or 20 days after notice that financing has been procured *** unless subsequently mutually agreed otherwise” by the parties. Certain other conditions contained in the contract are also relevant: Condition I provided that “time is of the essence” of the contract. Condition J provided that all notices required under the contract were to be in writing and sent to the parties at the addresses listed for them in the contract. Condition G provided that termination of the contract without fault of the buyer would result in return of the earnest money to him, but if buyer’s fault caused termination of the contract, the seller had the option of declaring a forfeiture of the earnest money, which was to be applied first to his expenses and the balance to be retained by seller as liquidated damages. Other conditions of the contract required the seller to deliver to buyer not less than five days before the time set for closing a commitment for title insurance and deliver before closing time a land survey. Plaintiffs-sellers address was listed on the contract as 508 Birch Road, Woodstock, Illinois. There was no provision contained in the contract which authorized the broker to receive notices required thereunder as plaintiffs-sellers agent or to modify the terms of the contract.

Plaintiff, Vernon Hajeck, testified that when he executed the contract it was his understanding that the buyers would apply to a bank where they already had a mortgage for the necessary financing and would be successful in doing so. Hajeck assumed that the closing would occur on October 1, and during August and September he had several communications from Emily Jones from which it appeared that would occur. He further testified that he did not receive a notice from the buyers pursuant to paragraph 4 of the contract that they were unable to procure financing to complete the purchase of the property, and no one contacted the sellers prior to the end of the 45-day period for an extension of time to secure financing. Hajeck first learned on October 12 that the buyers’ application for a loan had been denied; at that time he was called to the broker’s office and asked if he wished to procure the financing for the buyers, but he declined to do so. He stated he had been aware that Emily Jones had been looking to other banks for possible financing and had not advised her to cease those efforts. Hajeck agreed that the listing agreement provided that the broker would assist with financing, but did not agree that it gave the broker authority to modify the terms of the real estate contract.

Defendant, James Wyrick, testified that after executing the contract the buyers made application to the bank for a loan to finance the transaction. Processing of the application was delayed because the buyers did not have a current financial statement when they initially applied and it was delivered to the bank about September 24. As of October 1, 1981, the buyers’ loan application was still pending. Emily Jones, the broker’s salesperson, knew the loan would not be fully processed by that date, and although she had talked with the buyers prior to October 1, she had not suggested any need to seek an extension of the 45-day period.

Defendants-buyers were informed by the bank on October 6 that the loan had been denied and called Emily Jones that same day for her to find other financing, to which they agreed so long as it would be on the same terms as in the contract. Wyrick testified that the failure to give notice in writing to the seller as provided in the contract was due to his ignorance of the requirement because he had not read all of the contract, and also because he had believed notice that he was unable to procure financing was properly given to Ms. Jones as the agent for plaintiffs-sellers. Although Wyrick had only an eighth-grade education, he owned his own business and in the past had engaged in approximately 11 real estate transactions.

On October 9, 1981, plaintiffs-sellers caused a letter to be sent to the buyers advising that they were in default of the contract and requesting that they arrange within seven days for a suitable closing date to complete the purchase of the property. The buyers were further advised that failure to do so might result in legal action to enforce the contract. The buyers failed to respond, and the sellers’ attorney wrote to them on October 17 advising that the sellers had, pursuant to the contract, declared a forfeiture and elected to retain the earnest money as damages.

Plaintiffs-sellers’ motions for a directed verdict at the close of all the evidence and post-trial motion for judgment n.o.v. were denied by the trial court. The standard which trial and reviewing courts must apply in considering a motion for a directed verdict or judgment n.o.v. is set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504. Verdicts may be directed and judgments n.o.v. granted only where all of the evidence, when viewed in the light most favorable to the party opposing the motion, so overwhelmingly favors the movant that no contrary verdict based upon the evidence could ever stand. We apply that standard to the evidence in this case and conclude that the trial court erred in denying the plaintiffs motions.

Paragraph 4 of the real estate sales contract entered into between the parties required that the buyers procure a mortgage within 45 days after acceptance by the sellers on August 17, 1981; if he was unable to do so and so notified the sellers within that time, the contract would be void and the buyers would be entitled to the return of the earnest money deposit. However, if the buyers failed to give the required notice within the requisite 45-day period, the contract provided that it would be conclusively presumed that the buyers had secured the needed financing or would purchase the property without it. October 1, 1981, was the 45th day and the record is clear that the buyers gave no notice of any kind to the sellers.

Such a conclusive presumption binding the parties in the absence of timely notice of inability to secure financing has been given effect by the courts. (Mouhelis v. Thomas (1981), 95 Ill. App. 3d 181, 184, 419 N.E.2d 956; Djomlija v. Urban (1982), 107 Ill. App. 3d 960, 964, 438 N.E.2d 558.) As the buyers had agreed to these terms, the failure to complete the transaction can only be excused in this case if the broker’s salesperson, Emily Jones, was authorized to waive or alter the contract terms requiring the notice, as the buyers argue.

“[T]he essential feature of a broker’s employment is to bring parties to a transaction together for the purpose of effecting the transaction.” (Rabin v. Prenzler (1983), 116 Ill. App. 3d 523, 531, 451 N.E.2d 1331, appeal denied (1983), 96 Ill. 2d 565.) While the agency relationship created by a contract of employment between an owner and real estate broker need not be in writing, the broker can only act as agent with consent of the owner, either evidenced by a written contract of employment, oral authorization or by implication from the conduct of the parties. (Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App. 3d 867, 871, 400 N.E.2d 614; Bau v. Sobut (1977), 50 Ill. App. 3d 732, 737, 365 N.E.2d 724.) The listing agreement signed between the broker and plaintiffs-sellers is the contract which created and defined the scope of the broker’s authority to act on behalf of plaintiffs-sellers. See Leiter v. Fleetwood Realty Corp. (1981), 95 Ill. App. 3d 212, 419 N.E.2d 519.

It is apparent the listing agreement did not provide that the broker was appointed as agent for the receipt of any notices required under the contract to be sent to plaintiff-sellers. Nor did it give the broker authority to modify, alter or waive any of the terms of the contract between the parties. No evidence was presented at trial that the terms of the listing agreement had been subsequently modified to allow for such authority. A brokerage contract is governed by the law generally applicable to contracts (Bau v. Sobut (1977), 50 Ill. App. 3d 732, 737), and where there is no ambiguity in its terms, the language of the agreement is the sole criteria of the parties' intentions. (Althoff Industries, Inc. v. Elgin Medical Center, Inc. (1981), 95 Ill. App. 3d 517, 520, 420 N.E.2d 800.) While the agreement did provide that the broker would “assist in financing arrangements,” it cannot reasonably be contended that it authorized the broker to waive or alter notice requirements of the contract.

Where a real estate broker acts without authority on behalf of the property owner, and that action is not later ratified by the owner, then the owner is not bound. (See In re Estate of Boysen (1966), 73 Ill. App. 2d 197, 200, 218 N.E.2d 838.) Although plaintiffs-sellers testified they had learned from Emily Jones sometime prior to October 12 that she was trying to obtain information from the buyers’ bank as to the status of his loan application, we do not consider that knowledge to constitute a ratification of the claimed waiver or modification by the broker of the time requirement for notice. Nor do we believe the knowledge of the broker before October 1 that the application would not be approved by that date, and the broker’s failure to inform the buyers of a need to seek an extension of the 45 days, may be considered a waiver or modification of that provision. Compare Katz v. Anderson (1964), 48 Ill. App. 2d 406, 198 N.E.2d 715 (broker’s unauthorized signing of real estate contract for owner was ratified by owner’s subsequent letter congratulating him for effecting sale).

Defendant-buyer cites a number of cases in his brief relating to agency; however, we find only one which lends any degree of support to his argument. In Tantillo v. Janus (1980), 87 Ill. App. 3d 231, 408 N.E.2d 1000, the buyer under a real estate contract was granted specific performance, the court holding that he had not breached the contract by failing to redeem his promissory note for the earnest money with a cashier’s • check within the time required by the contract. It provided that the earnest money was to be held by the broker until closing, and the court determined that the buyer’s untimely delivery to the broker was excused because the broker had overlooked his lack of diligence and knowledge of the delay was imputed to the seller as principal from the broker. Tantillo v. Janus is inapposite, however, as the broker had been expressly appointed under the terms of the real estate contract to be the seller’s agent for receipt of the earnest money.

We consider Horan v. Blowitz (1958), 13 Ill. 2d 126, 148 N.E.2d 445, to be dispositive. There, the purchaser of real estate sought specific performance of a contract against the seller which provided that it would become void if the buyer failed to obtain mortgage financing within 15 days of the execution of the contract. The buyer failed to obtain financing within the requisite period of time, but argued that no breach occurred because the broker, as agent for the seller, had waived the time requirement. The seller therein testified that he had not given the broker authority to waive or alter the contract terms as to financing and had not been aware the broker had arranged with the buyer for the transaction to be closed despite the failure of timely receipt of financing. The court held that, unless otherwise provided for, a real estate broker has no authority to waive or alter such a contract term. 13 Ill. 2d 126, 132; see also Johnson v. Riedler (1946), 395 Ill. 412, 70 N.E.2d 570.

We conclude that the broker in the present case had no authority to waive or alter the contract’s requirement that notice be given to the sellers by October 1, 1981, that the buyers were unable to obtain financing. Nor do we consider under the evidence presented that the broker sought to waive or modify that requirement of the contract. Because timely notice was not given to sellers, they had the right to rely upon the conclusive presumption of the contract that the buyers would purchase the property and sought to close the transaction. When the buyers failed to respond to that request, they breached the contract, thus permitting forfeiture of the earnest money.

Courts abhor forfeitures on contracts if real injustice would thereby result, but where a forfeiture of earnest money is provided for by the parties and the amount to be forfeited is not an undue sum, the forfeiture will be enforced. (Curtin v. Ogborn (1979), 75 Ill. App. 3d 549, 554-55, 394 N.E.2d 593.) The earnest deposit at issue was less than 10% of the selling price in the present case, and principles of unjust enrichment do not apply. Because the terms of the contract requiring written notice that financing had not been procured were not waived or altered by the broker, the affirmative defense of estoppel to that effect should not have been submitted to the jury.

We have considered the other arguments made by both parties and find them to be without merit.

For the foregoing reasons, we reverse and remand this cause with directions that the verdict of the jury be vacated and judgment notwithstanding that verdict be entered in favor of plaintiffs.

Reversed and remanded with directions.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ALLAN MOURILLON, Defendant-Appellee. THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. HOWARD YOUNG, Defendant-Appellee.
    Second District
    Nos. 82—850, 82—851 cons.
    Opinion filed May 15, 1984.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for the People.
    Robert P. Sheridan, of Sapoznick, Sheridan & Freidin, of Chicago, Berle L. Schwartz, of Highland Park, and Francis Cuneo, of Naperville, for appellee Howard Young.
    No brief filed for appellee Allan Mourillon.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

After being arrested for driving while under the influence of intoxicating liquor, the defendants, Allan Mourillon and Howard Young, refused to submit to testing to determine their blood-alcohol content. The arresting officers filed affidavits with the clerk of the circuit court, which affidavits indicated that defendants had been arrested and refused to take the requested tests and that the officers had reasonable cause to believe that defendants were driving while under the influence of alcohol and/or other drugs. Each defendant requested an implied consent hearing (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.1) and moved to dismiss the license suspension proceedings on the grounds that the affidavits failed to state any factual basis for the conclusion that defendants were intoxicated and that the affidavits were in violation of the fourth and fourteenth amendments of the Federal Constitution (U.S. Const., amends. IV, XIV). These motions were granted after denial of the State’s motions to amend the affidavits. The State appeals, and the cases have been consolidated by this court. Although defendant Mourillon has not filed a brief, these appeals will be reviewed on their merits. People v. Schuberth (1983), 115 Ill. App. 3d 302, 303.

The State asserts that the dismissals were erroneous, as there is no constitutional or statutory requirement that the affidavit recite the facts underlying the officer’s belief. The State also notes that it attempted to amend the affidavits and thus correct any deficiency. Young argues that the State has waived any claim that the officer’s affidavit was constitutionally sufficient and that the trial court correctly denied the State’s motion to amend as no proposed amendments were tendered. In his initial brief, Young had contended that due process principles required that the officer’s affidavit state a factual basis. However, in light of Illinois v. Batchelder (1983), 463 U.S. 1112, 77 L. Ed. 2d 1267, 103 S. Ct. 3513, Young has withdrawn this argument and, in his amended brief, claims that it is a violation of equal protection to permit the affidavit to state only conclusions.

As the waiver rule is not a limitation on the reviewing court (see People v. Winston (1982), 106 Ill. App. 3d 673, 688), and as the trial court did consider the constitutional sufficiency of the affidavits, this issue will be reviewed on its merits (see People v. Whitley (1977), 49 Ill. App. 3d 493, 500).

The applicable statute does not require that the affidavit state any facts to support the officer’s conclusion that the arrestee was intoxicated. (People v. Babych (1983), 112 Ill. App. 3d 704, 708; see Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 501.1.) Additionally, it is now clear that, contrary to the trial court’s decision, there is no due process requirement that the affidavit contain a description of the underlying circumstances for the officer’s belief. (Illinois v. Batchelder (1983), 463 U.S. 1112, 1119, 77 L. Ed. 2d 1267, 1273, 103 S. Ct. 3513, 3516-17.) The driver’s due process rights are fully protected by the statutory provision for a hearing prior to suspension at which there is a judicial determination of, inter alia, the basis for the officer’s conclusion that the driver was intoxicated. 463 U.S. 1112, 77 L. Ed. 2d 1267, 103 S. Ct. 3513; see People v. Babych (1983), 112 Ill. App. 3d 704, 708-09; People v. Rehfeldt (1982), 103 Ill. App. 3d 368, 371.

The statutory scheme also does not violate equal protection guarantees. Where, as here, legislation is not based on a suspect classification and does not interfere with a fundamental right, the statute must be upheld as long as it bears a rational relationship to a permissible State interest. (Ashcraft v. Board of Education (1980), 83 Ill. App. 3d 938.) While continued use and possession of a driver’s license is a substantial interest (Mackey v. Montrym (1979), 443 U.S. 1, 11, 61 L. Ed. 2d 321, 330, 99 S. Ct. 2612, 2617), it is not a fundamental right, as it is not explicitly or implicitly guaranteed by the Constitution (see San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 17, 36 L. Ed. 2d 16, 33, 93 S. Ct. 1278, 1288).

The legislature had a rational basis for enacting a special and expeditious procedure, distinct from civil litigation generally for suspending the driving privileges of persons who are arrested for drunken driving and refuse to submit to blood-alcohol content testing. Creation of such a procedure substantially serves the State’s particularly strong interest in public safety and in depriving drunken drivers of permission to continue operating motor vehicles. (Mackey v. Montrym (1979), 443 U.S. 1, 18-19, 61 L. Ed. 2d 321, 334-35, 99 S. Ct. 2612, 2621; see Illinois v. Batchelder (1983), 463 U.S. 1112, 1118, 77 L. Ed. 2d 1267, 1272-73, 103 S. Ct. 3513, 3516.) A quick and efficient procedure for suspension of driving privileges serves as a deterrent to drunken driving; provides a strong inducement to take the test, which produces objective evidence for use in criminal proceedings (People v. Schuberth (1983), 115 Ill. App. 3d 302, 305); and promptly removes drunken drivers from the road. See Mackey v. Montrym (1979), 443 U.S. 1, 18, 61 L. Ed. 2d 321, 334, 99 S. Ct. 2612, 2621.

Having reached these conclusions, it is unnecessary for this court to consider whether the trial court erred in denying the State’s motions for leave to amend.

The judgments of the circuit court of Du Page County in both Nos. 82 — 850 and 82 — 851 are reversed and the causes are remanded for further proceedings.

Reversed and remanded.

NASH and UNVERZAGT, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILBUR J. BROOKS, Defendant-Appellant.
    Third District
    No. 3—82—0675
    Opinion filed May 10, 1984.
    Rehearing denied June 14, 1984.

      Nicholas J. Bertschy, of Peoria, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Vicki R. Wright, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Wilbur Brooks, appeals from his conviction of armed robbery, following a jury trial in the circuit court of Peoria County, and from his sentence of 24 years’ imprisonment.

The following issues are before us: (1) whether the defendant was denied his right of confrontation under the sixth and fourteenth amendments by the trial court’s refusal to permit the defendant to test the ability of the State’s star witness to identify him in court by showing her a series of photographs of young black males; (2) whether the trial court erred in denying defendant’s motion to suppress two in-court identifications of the defendant; (3) whether the court erred in denying defendant’s motion for mistrial; (4) whether the State’s evidence was sufficient to prove that a dangerous weapon was used in the commission of the robbery; (5) whether the trial court erred in giving Illinois Pattern Jury Instruction (IPI), Criminal, No. 2.04 (2d ed. 1981), tendered by codefendant Brown over defendant Brooks’ objection; (6) whether the State’s evidence was sufficient to prove the defendant guilty of armed robbery beyond a reasonable doubt; and (7) whether the defendant’s 24-year sentence of imprisonment constitutes an abuse of discretion. We affirm.

Louise DeBates was the clerk at Stafford’s Dairy Store in the early afternoon of April 12, 1982. Around 1:40 p.m., a man unfamiliar to her wearing a dark stocking cap and holding a handkerchief to his face entered the store and announced, “This is a holdup.” He held a small gun in his hand and ordered a small boy customer to lie on the floor. DeBates handed the robber about $100 from the cash register and, upon further demand, $3 from her own purse. The man then told her to pull the telephone wires out of the wall. When she was unable to do so, he yanked the wires out himself and then ordered DeBates and the boy to go to the back room of the store. The robber had dropped the handkerchief, exposing his face, during the confrontation with DeBates. The robber disappeared and DeBates promptly summoned the police by telephone from a neighboring hardware store.

When the police arrived, DeBates described the man as black, tall, thin, about 18 to 20 years old, with short hair and no beard. During the four to five minutes that the robbery had been in progress, DeBates stood within three feet of the perpetrator. DeBates’ on-the-scene description was included in the investigating officer’s report and subsequently introduced into evidence at defendant’s trial.

On April 14, 1982, DeBates, along with two other occurrence witnesses, Andre Edwards and Gail Sturdivant, attended a lineup at the Peoria city police station. Five young black males participated in the lineup, and DeBates selected defendant Brooks as the man who had robbed her. The defendant had shoulder-length hair and was viewed by DeBates both wearing a hat and without the hat during the lineup. On motion of the defendant, however, all testimony concerning the lineup identification was ordered suppressed on grounds that the defendant had requested the assistance of counsel prior to the lineup procedure, but was still without legal representation when the lineup was conducted.

Three months later, testifying for the State at defendant’s trial, DeBates again positively identified Brooks as the person who had held her up. Brooks was bearded and had short hair in court. From the witness stand, DeBates said that the defendant had had long hair that stuck out from under his cap on the date of the offense and was about 22 or 23 years old. On cross-examination, she stated that she did not recall having told the investigating officer at the scene of the robbery that the robber was about 18 years old and had short hair. Defense counsel sought to introduce a group exhibit of 18 color photographs of young black males in various casual poses to impeach DeBates’ in-court identification. The defendant’s photograph was not included in the proposed array. The State’s objection to the introduction of the group exhibit was sustained on grounds that the potential prejudice that could result from the demonstration outweighed the potential relevance of the impeachment tactic. The exhibit was, however, admitted into the record for purposes of preserving the issue on appeal.

In redirect examination, the prosecutor asked DeBates about the defendant’s head and facial hair at the time of the offense as compared to their appearance at trial. She reiterated that he was unbearded during the robbery and then was asked, “Now, did you have [sic] see his hair other than underneath the cap?” DeBates responded “In the line-up?” and drew an immediate objection from defense counsel and a motion for mistrial. The motion was denied on grounds that the witness’ response was inadvertent and was not the product of any misconduct on the part of the prosecution. The jury was soundly admonished to disregard DeBates’ answer.

The issue of whether the defendant was denied his constitutional right of confrontation by the trial court’s evidentiary ruling on the proposed group exhibit of photographs, while novel, does not give us pause to consider the violation of any profound constitutional rights of the defendant. (Cf. Pointer v. Texas (1965), 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (introduction at trial of a transcript of defendant’s preliminary hearing, at which defendant lacked legal counsel to cross-examine the State’s witnesses, violated defendant’s sixth and fourteenth amendment right to be confronted with witnesses against him).) Although defense counsel’s cross-examination in this case was limited in one respect, we do not find the limitation of constitutional dimension since the balance of defense counsel’s cross-examination of DeBates amply tested the witness’ ability to identify the defendant as the robber. The defendant’s constitutional right of confrontation was not impermissibly restricted by the trial court’s ruling. Indeed, as in most evidentiary matters, the appropriate inquiry revolves around the exercise of the trial court’s discretion.

If the trial court’s ruling had constituted an abuse of discretion to the substantial prejudice of the defendant, such that the result of the trial might have been affected by the ruling, then, of course, a reversal would be warranted. (People v. Boyce (1977), 51 Ill. App. 3d 549, 366 N.E.2d 914.) Such is not the case here. The photo array of several young black males did not include any of the defendant. Obviously, defense counsel’s tactic was to trick DeBates into testifying that one or more of the young men resembled the robber. While such a tactic, if successful, might have bolstered the defendant’s case on the issue of DeBates’ credibility we must agree with the trial court that the potential for jury misuse of the array, coupled with its borderline relevancy, weighed against permitting defense counsel to conduct the proposed demonstration. In sum, we find neither a constitutional violation nor an abuse of discretion in the trial court’s ruling denying use of the in-court photo display under the circumstances here presented.

In defendant’s second issue he contends that the trial court should have suppressed in-court identifications of defendant Brooks by DeBates and another occurrence witness, Andre Edwards, because such identifications were tainted by the witnesses’ pretrial identifications at the police station lineup when Brooks was without legal representation. The issue was thoroughly considered by the trial court and was, in our opinion, correctly decided. Louise DeBates had had an opportunity to observe the defendant’s appearance for four or five minutes in a well-lit commercial building under circumstances which would have impressed his image in her mind independent of her later observance of him at the police station lineup. Although defendant had urged suppression of the police station lineup identification on grounds that it was unfairly suggestive, the trial court had properly rejected that theory and entered its suppression order solely on the basis of the sixth amendment right-to-counsel violation. We are satisfied that DeBates’ in-court identification of the defendant had its origin from her observations at the robbery scene, rather than at the police lineup, as found by the trial court, and should not have been suppressed. See People v. Thomas (1984), 121 Ill. App. 3d 883.

Similarly, we find no error in the trial court’s ruling respecting the in-court identification of Brooks by Andre Edwards. Edwards resided in the neighborhood of the Stafford Dairy Store and observed from his living room window the suspicious activity of two black men driving a blue car. He saw the car park twice near the dairy store, and both times the passenger got out, took a walk, and returned. The second time, the passenger “jogged” back to the waiting car and Edwards noted a blue workman’s handkerchief hanging out of the man’s back pocket. Edwards took note of the car’s license plate number and promptly reported his observations of the men, their activities, and the vehicle they drove to the police officer investigating the dairy store robbery. At the suppressed pretrial police station lineup, Edwards identified defendant Brooks as the passenger he had observed on the date of the robbery.

The details supplied by Edwards in describing what he saw from his living room window indicate his attentiveness to the two men and their activities while he observed them. Under these circumstances, we hold that the trial court also correctly concluded that Edwards’ in-court identification of defendant Brooks as the passenger he had observed was based on origins independent of the lineup viewing and was, therefore, reliable. See People v. Thomas (1984), 121 Ill. App. 3d 883.

The trial court further committed no error in denying defendant’s motion for a mistrial on grounds that DeBates had inadvertently disclosed the fact that she had seen the defendant at a lineup despite the court’s suppression of testimony concerning that identification procedure. It is apparent from the record that DeBates’ spontaneous response came as a surprise to the prosecution. The defendant’s objection was prompt, and it was sustained. The trial court cured the error to the extent possible with a brief but sound admonishment to the jury to disregard DeBates’ unfortunate remark. The drastic remedy of a mistrial was not warranted on these facts.

Next, we find that the State’s evidence was sufficient to prove beyond a reasonable doubt that the defendant used a dangerous weapon, namely a gun, during the robbery. Louise DeBates testified that the defendant wielded a small black gun during his visit to the dairy store. Although she admitted on cross-examination that she was not familiar with firearms, and conceded upon defense counsel’s suggestion that the object she had perceived as a weapon may have been a toy pistol, the attempted impeachment did not raise a reasonable doubt in the minds of the jurors that the dangerous weapon element of the charged offense had been proved by the prosecution. (Cf. People v. Skelton (1980), 83 Ill. 2d 58, 414 N.E.2d 455 (a plastic toy gun was the “weapon” recovered and introduced into evidence at trial).) Proof of a dangerous weapon may be established on the basis of circumstantial evidence. Although the object in question was not produced at trial, the jury was presented with credible testimony that a handgun had been employed during the robbery. The prosecution was not required to prove that the object was not a toy. (See People v. Greer (1977), 53 Ill. App. 3d 675, 368 N.E.2d 996.) In the absence of any evidence to the contrary, we will not disturb the jury’s finding that, in fact, a dangerous weapon was used.

The defendant’s fifth issue challenges the decision of the trial court to give, over defendant Brooks’ objection, the instruction cautioning the jury not to consider a defendant’s failure to testify in reaching a verdict. (IPI Criminal No. 2.04 (2d ed. 1981).) The instruction was tendered by codefendant Brown. The defendant had moved for a severance on May 7, 1982, but failed to suggest that the two defendants were in disagreement over the jury instruction issue on that occasion. Instead, the matter was raised for the first time on July 15, 1982, at the conference on jury instructions following presentation of testimony by the defendants’ witnesses. Neither defendant had testified on his own behalf.

Our supreme court recently held that the question of giving or refusing to give a properly requested instruction on a defendant’s failure to testify is of constitutional dimension. (People v. Ramirez (1983), 98 Ill. 2d 439, 457 N.E.2d 31.) Failure to give a properly requested IPI Criminal No. 2.04 instruction is reversible error. Conversely, where, as here, a defendant objects to the giving of the properly tendered instruction by his codefendant in a joint trial, we find no constitutional infirmity so long as the trial court gives the tendered instruction.

We are not called upon to determine whether conflicting defense theories on the advisability of giving the jury instruction at issue, if presented prior to trial, might have required granting defendants’ motions for severance. Such facts are not before us, and we express no opinion on the hypothetical question. We hold only that under the circumstances here presented the trial court committed no error in granting co-defendant Brown’s request to give IPI Criminal No. 2.04 over defendant Brooks’ objection.

We have reviewed the defendant’s final two issues and have considered them in light of the record on appeal, but we find no basis upon which to disturb the trial court’s rulings respecting thereto. Suffice it to say, the State’s evidence was sufficient to prove the defendant guilty of armed robbery beyond a reasonable doubt, and his 24-year sentence of imprisonment is not excessive.

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

Affirmed.

STOUDER, P.J. and SCOTT, J., concur.


author: JUSTICE STOUDER JUSTICE SCOTT,

text:
    COMMONWEALTH EDISON COMPANY, Plaintiff-Appellee, v. THE PROPERTY TAX APPEAL BOARD OF THE STATE OF ILLINOIS et al., Defendants-Appellants (Valley View Community Unit School District No. 365U, Intervening-Appellant).
    Third District
    Nos. 3—83—0394, 3—83—0395, 3—83—0406 cons.
    Opinion filed May 10, 1984.
    Rehearing denied June 14, 1984.

      SCOTT, J., concurring in part and dissenting in part.
    Neil E Hartigan, Attorney General, of Springfield (Kathryn A. Spalding, Assistant Attorney General, of counsel), for appellant Property Tax Appeal Board.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for appellant Board of Review of Will County.
    Barry L. Moss and George A. Marchetti, both of Moss & Bloomberg, Ltd., of Bolingbrook, for appellant Valley View Community Unit School District No. 365U.
    Kenneth E. Timm and Douglas F. Spesia, both of Murphy, Timm, Lennon, Spesia & Ayers, of Joliet, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises over the 1979 personal property taxes assessed against Commonwealth Edison (Edison) for personal property including operating equipment at two plants in Will County, Illinois. In 1979 the Will County Board of Review levied an across the board 10% increase in the assessed values on all personal property in Will County allegedly to avoid the imposition of a multiplier by the Department of Revenue to equalize Will County assessed values with other assessed values in other counties throughout the State. Edison protested the 10% increase and filed a complaint with the board of review. The board of review then informed Edison that it would not change Edison’s assessed valuation as so increased and therefore upheld the 10% increase.

Edison then appealed to the Property Tax Appeal Board (PTAB), claiming that their personal and real property were overvalued at both the Will County generating stations. The valuations used by Edison on its 1978 personal property tax return were values arrived at by agreement between Edison and the Will County taxing authorities. The gist of the agreement was that the utility’s property would be debased 60% so that the assessed value would remain constant. This type of arrangement allegedly prevented an erosion of the utility’s tax base and facilitated ratemaking which is dependent largely upon the value of a utility’s property. The PTAB removed the 10% increase levied by the board of review but upheld the valuations which Edison had used on its 1978 property tax return over Edison’s protest that these values were inaccurate and were overvaluations because they were arrived at pursuant to an agreement which the board had breached by its imposition of the 10% increase. The PTAB also refused to reduce Edison’s fair market values by a 15% depreciation factor. Edison had alleged a depreciation factor existed with respect to the market value of its property because of Edison’s failure to earn the rate of return allowed by the ICC which Edison’s expert attributed in part to what he called “regulatory lag.” The PTAB also refused to apply the assessment level which Edison sought to establish by use of an expert in the field of mathematics and statistics. The assessment level is a means by which the county can regulate assessed values within the county in the interest of uniformity much like the multiplier applied by the department to equalize assessed values throughout the State. The method which Edison sought to establish was based upon quarterly calculations of the sale price of property within the county rather than calculations based upon the whole year — the method employed by the PTAB and regularly used in protest cases.

Edison appealed the decision of the PTAB to the circuit court of Will County for review. The trial court reversed the PTAB decision and found that Edison had presented convincing evidence as to the proper assessed valuation of its operating equipment and other personal property and that the PTAB erred in not accepting Edison’s valuations presented at the hearing rather than Edison’s valuations reflected on its 1978 tax return (the agreed valuations). The trial court also found that Edison should be allowed to reduce its fair market value by the 15% depreciation factor and that the method used by Edison to calculate the assessment level was correct and the county’s method of calculation was against the manifest weight of the evidence. The trial court then found that the fair market value of the operating equipment at the Joliet Generating Station was $88,070,600 and $64,223,100 at the Will County Generating Station and also ordered that the fair market value of Edison’s miscellaneous personal property be established at Edison’s figures.

The appellants raise four basic issues for review. First, whether the trial court erred in reversing the decision of the PTAB as to the value of Edison’s operating equipment and other personal property; second, whether the circuit court erred in allowing the 15% reduction in the fair market value of Edison’s assets due to economic depreciation; third, whether it was error to apply the assessment level of 24.41% arrived at by Edison’s expert in lieu of the 26.69% assessment level established by the PTAB and as a fourth issue the intervenor, the Valley View Community Unit School District No. 365U, raised the issue for the first time in the circuit court that Edison’s operating equipment was improperly classified as personal property. The circuit court declined to treat this issue because it was not raised before the administrative agency.

Recently the Illinois Supreme Court in People v. International Business Machines Corp. (1982), 89 Ill. 2d 287, 432 N.E.2d 867, has again enunciated the standard of review of a property assessment for tax purposes. It is well settled in Illinois that a court will not review a property assessment for tax purposes unless there is a showing of fraud or constructive fraud. The taxpayer must present clear and convincing evidence that fraud was committed in the valuation of his property. The Illinois Supreme court set out the following guidelines for establishing constructive fraud.

“Assessments that are disproportionately higher than those for similar property or assessments that are based on the assessor’s own private opinion showing a lack of knowledge or lack of honest judgment *** overvaluation may be so excessive, under some circumstances, as to justify the conclusion that it was not honestly made.” (89 Ill. 2d 287, 293.)

Whether constructive fraud is established is largely dependent upon the facts and circumstances, and in this case we find that Edison presented clear and convincing evidence that the assessor used an arbitrary method of valuation for Edison’s property by agreeing to debase all property by 60%. There is nothing in the statute which allows assessors to enter into agreements with taxpayers as to assessments. Such agreements destroy uniformity and contravene article IX of the Illinois Constitution which provides for uniform valuation of property unless specifically excepted by statute. The assessment upheld by the PTAB was based upon valuations which appeared on Edison’s 1978 personal property tax return. These valuations were undisputedly reached by agreement of the parties and were not based upon any recognized method of valuation, i.e., market value, income or market data approach. Therefore, we find that Edison presented clear and convincing evidence that the assessments were arbitrarily reached because the assessor did not follow recognized methods in arriving at these valuations. We find the reasonable approach when valuing property of a regulated utility to be one based on historic cost rather than fair market value because utility properties are specialized and are not commonly bought or sold on the market. This is the method agreed upon by all of the experts who testified. See Commonwealth Edison Co., Property Tax Appeal Board Docket Nos. 79-2354-1-2 and 79-2355-1-2 (April 6, 1983).

The circuit court was correct in reversing the PTAB as to the propriety of the property tax assessments established by the PTAB decision. However, the circuit court cannot determine the proper assessments. That is the sole function of the PTAB and is not within the scope of judicial review. Consolidation Coal Co. v. Property Tax Appeal Board (1975), 29 Ill. App. 3d 465, 331 N.E.2d 122.

Because we have determined that the property assessments were improper we theoretically need not consider the other issues raised on appeal. However, the use of the 15% economic depreciation factor and the 24.41% assessment level are both issues that are likely to arise in a subsequent proceeding. Therefore, we will consider the finding of the trial court that the PTAB decision not to use the 15% economic depreciation factor or the 24.41% assessment level, both of which were proposed by Edison’s experts, was against the manifest weight of the evidence. We are persuaded that Edison’s evidence of economic obsolescence was not so overwhelming as to make the PTAB’s decision not to use such a factor clearly erroneous. To the contrary, as the PTAB points out there are many possible explanations for the “regulatory lag” which have nothing to do with property valuations. Also, Edison has not relied upon the 15% factor' even in the proceeding before the ICC. Therefore, the circuit court erred in finding the PTAB decision not to reduce the fair market value of Edison’s property by a 15% depreciation factor against the manifest weight of the evidence.

We also do not find that the use of a 26.69% assessment level by the PTAB was against the manifest weight of the evidence as found by the circuit court. The statute authorizes the PTAB to “establish by rules an informal procedure for the determination of the correct assessment * * * which is the subject of [the] appeal.” (Ill. Rev. Stat. 1979, ch. 120, par. 592.2.) The PTAB promulgated Rule 4D, which requires that the taxpayer present evidence of the full market value of the subject property as a prerequisite to the use of the median assessment level by a county. This court held in Will County Board of Review v. Property Tax Appeal Board (1981), 100 Ill. App. 3d 506, 426 N.E.2d 1238, that it was permissible under Rule 4D for the PTAB to use a one-year sales ratio figure rather than a three-year sales ratio figure in arriving at an equitable result in determining the fair market value of taxpayer’s property. This however is not what Edison is contending. Edison contests the method used by the PTAB to calculate the one-year sales ratio. The gist of Edison’s claim is that the PTAB should have calculated the ratio quarterly rather than yearly. As the supreme court stated in People ex rel. Wenzel v. Chicago North Western Ry. Co. (1963), 28 Ill. 2d 205, 216, 190 N.E.2d 780:

“Our statute requires only that the Department use such means as it deems ‘proper and reasonable’ to make its studies on assessed valuations, and a mere difference in opinion as to what is the best or most reasonable method is not sufficient to bring the matter within the range of judicial review.”

We, therefore, decline to review the method by which the PTAB calculated the one-year sales ratio and find the trial court erred in so doing.

Because as a result of our decision this case will be remanded to the PTAB for further proceedings to determine the fair market value of Edison’s operating equipment and other property in order to arrive at the proper assessment, we decline to decide any issue raised by the intervenor at this time. We, therefore, affirm the decision of the circuit court of Will County reversing the decision of the PTAB as to the fair market value of Edison’s personal property, but reverse the circuit court as to its determination of actual assessments. This case is remanded to the circuit court of Will County with directions that it be remanded to the Property Tax Appeal Board of Illinois for further proceedings consistent with this opinion.

Affirmed in part, reversed in part with directions.

HEIPLE, J., concurs.

JUSTICE SCOTT,

concurring in part and dissenting in part:

I concur with the results reached in the majority opinion except for its determination that the 15% depreciation factor should not be considered and applied in the valuation of Edison’s property. This court has recognized that depreciation is an element which can properly be considered in arriving at the value of property. (See Consolidation Coal Co. v. Property Tax Appeal Board (1975), 29 Ill. App. 3d 465, 331 N.E.2d 122.) The majority opinion concludes that the depreciation factor was not proved by the manifest weight of the evidence before the Property Tax Appeal Board (PTAB). The circuit court upon review of the record held that “the uncontroverted evidence in these proceedings established the existence and propriety of economic depreciation.” With this observation I agree.

Corroborated evidence was submitted to the PTAB comparing the rate of return allowed under relevant ICC rate orders with the rates of return actually earned by Edison for the years 1970 through 1979. In all of these years the rates of return earned were less than rates of return allowed, i.e., allowable rates of return by ICC orders dated December 13, 1978, and October 12, 1977, were 9.03%. Edison’s earned rates, however, were considerably less, being 8.12% in 1976, 7.48% in 1977, and 8.31% in 1978. The difference between the rate actually earned and that allowed was 12.7% less in 1976; 19.6% less in 1977, and 10.6% less in 1978. Testimony adduced by Edison was to the effect that the inability to earn the allowed rate of return in an inflationary economy results in a lower market value of the utility’s assets. There was further testimony that the failure to earn the allowed rate of return was not related to incompetent management on the part of Edison.

Expert testimony presented to the PTAB explained that economic depreciation is the same as economic obsolescence in that it is a decline in value of property due to conditions or causes outside of the property.

In the Consolidation Coal Co. case, the reviewing court rejected a deduction as to the value of property based on the obsolescence factor because of conflicting evidence. In the instant case there is no conflicting evidence as to economic depreciation. It should be noted that at the hearing before the PTAB all the testimony was from witnesses for Edison. There were no rebuttal witnesses nor was contrary appraisal testimony presented.

The failure to earn the rate of return authorized by the ICC was not unique to Edison but as acknowledged by PTAB was a problem being experienced by the industry as a whole. This fact should negate a conclusion that Edison’s failure to realize the allowable rate of return was caused by inefficient management or it must be concluded that such inefficiency permeated the entire industry.

PTAB does not strongly urge the argument of inefficient management but instead urges that the failure to realize the allowable rate of return is attributed to a regulatory lag. PTAB suggests that if a regulatory lag is the cause of Edison’s problems, then Edison should seek a legislative amendment to the Public Utilities Act. This blithe assertion ignores the difficulties of changing the regulatory process so as to eliminate economic depreciation.

It is further argued that Edison did not rely on or present any evidence of the economic depreciation 15% factor in proceedings before the ICC. The record discloses and it is recognized in the majority opinion that for a number of years Edison and the Will County taxing authorities over a span of years had entered into an agreement as to the valuation for purposes of taxation as to the personal property of Edison. This agreed valuation was presented at hearings before the ICC and it can safely be surmised that we would not have the present litigation if the Board of Review of Will County had not broken the agreement by levying an across the board 10% increase on the assessed valuation of Edison’s personal property. The ultimate valuation of Edison’s personal property which results from the litigation will in the future be presented at the rate-setting hearings before the ICC.

There was comprehensive evidence of economic depreciation presented to the PTAB which was not adequately countered or refuted, and for this reason I disagree with the majority’s conclusion that the 15% depreciation factor was not supported by the manifest weight of the evidence.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT M. HARMISON, Defendant-Appellant.
    Third District
    No. 3—83—0529
    Opinion filed May 24, 1984.

      Robert Agostinelli and Jean Herigodt, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Scott Harmison, was convicted, following a bench trial in the circuit court of Peoria County, of calculated criminal drug conspiracy (Ill. Rev. Stat. 1983, ch. 561/2, par. 1405(a)), and delivery of a controlled substance (Ill. Rev. Stat. 1983, ch. 561/2, par. 1401(b)(2)). The court sentenced the defendant to six years’ imprisonment for the conspiracy conviction and to a concurrent term of probation for the delivery conviction. A $2,000 fine was also imposed upon the defendant, based upon the “street value” of the delivered contraband, pursuant to section 5 — 9—1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-9-1.1).

We shall consider first the defendant’s argument that the indictment charging him with calculated criminal drug conspiracy was fatally defective. The defendant contends his conviction should be reversed because the indictment did not state the elements of the offense with sufficient particularity so as to enable him to prepare his defense. (See People v. Rice (1943), 383 Ill. 584, 589 (indictment for solicitation failed to name the person solicited); People v. Binkley (1975), 25 Ill. App. 3d 27, 30.) The indictment alleges that the defendant and Robert Dubois were part of a conspiracy undertaken with “another.” The indictment does not name, or identify, this other person. As will be discussed below, proof of the agreement of the unnamed person was essential to the State’s case. The defendant could not develop a defense concerning the alleged agreement of the unnamed coconspirator without knowing the person’s identity. Consequently, we find the indictment did not permit the defendant to prepare his defense. Therefore, the indictment was fatally defective. For the same reason, we find that the trial court erred in denying the defendant’s motion for a bill of particulars which requested the identification of the unnamed coconspirator.

The above holdings, however, do not dispose of this appeal. The defendant also argues that the evidence was insufficient to sustain the charge of calculated criminal drug conspiracy. We shall decide the sufficiency of the evidence issue in order to avoid the possible double jeopardy of the defendant. People v. Moore (1984), 121 Ill. App. 3d 570.

The evidence established that Neal Dewalt, a confidential informant, asked the defendant to sell some cocaine to Richard Bancus, an undercover agent. The defendant, in turn, asked Robert Dubois if he could obtain the needed cocaine. The defendant suggested to Dubois that Dubois obtain the contraband from Peter Lowe. The defendant could not approach Lowe because of a large outstanding debt between Lowe and the defendant. Dubois convinced Lowe to “front” the drugs to Dubois, but did not tell Lowe of the planned sale to Bancus. Dubois accompanied the defendant to the designated rendezvous point. After the defendant made the transaction with Bancus, Dubois and the defendant were arrested.

A person commits the crime of calculated criminal drug conspiracy when:

“*** (x) violates any of the provisions of subsections (a) or (b) of Section 401 [the manufacture or delivery of certain controlled substances, including cocaine]; or subsection (a) of Section 402 [possession of certain controlled substances, including cocaine]; and
(2) such violation is part of a conspiracy undertaken or carried on with two or more other persons; and
(3) he obtains anything of value greater than $500 from, or organizes, directs or finances such violation or conspiracy ***.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 561/2, par. 1405(b)(1) through (3).)

The basic distinction between a calculated drug conspiracy and simple conspiracy (Ill. Rev. Stat. 1983, ch. 38, par. 8 — 2) is that the former requires a minimum of three conspirators, while the latter only requires a minimum of two conspirators. (People v. Brown (1982), 107 Ill. App. 3d 742, 744.) In order to prove a calculated drug conspiracy, it must be shown that three or more conspirators agreed to the commission of the same offense. For example, in Brown, two of the conspirators agreed to sell drugs to an undercover agent. One of the conspirators subsequently contacted Brown in order to obtain the drugs. Brown also agreed to sell the drugs to the undercover agent. Thus, there were three men agreeing to the planned sale of drugs to the agent.

In the instant case, the burden was upon the State to prove that all three men, the defendant, Dubois, and Lowe, conspired to sell the cocaine to Bancus. The State only proved that the defendant and Dubois agreed to make the sale. The fact the defendant knew that Dubois would get the cocaine from Lowe was not sufficient to prove that Lowe was the third person in the calculated drug conspiracy. In Illinois, we do not recognize the crime of unilateral conspiracy. There must be a bilateral agreement between conspirators. (People v. Foster (1983), 99 Ill. 2d 48, 54; People v. Ambrose (1975), 28 Ill. App. 3d 627, 629.) The evidence at trial did not prove that Lowe agreed with the defendant, or Dubois, to the commission of the crime. Indeed, the evidence indicates that Lowe did not know about the defendant’s planned sale to Bancus.

The trial court acknowledged the absence of evidence concerning Lowe’s agreement to the sale to Bancus. Yet, the lower court found the defendant guilty because of a mistaken belief that Lowe’s agreement was unnecessary. Lowe’s agreement was crucial to the case. Without the agreement of three or more conspirators, there cannot be a calculated criminal drug conspiracy. We find the evidence was insufficient to prove a calculated criminal drug conspiracy. Therefore, we reverse the defendant’s conspiracy conviction.

We turn now to the defendant’s argument that the $2,000 fine imposed under section 5 — 9—1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 9—1.1) was an unconstitutional mandatory fine. The defendant contends that the mandatory fine violated the due process and separation of powers provision of the Illinois Constitution because the trial court was not allowed to consider the defendant’s financial resources and was deprived of its discretion in imposing the fine. The lower court determined that the statute required a mandatory fine because the defendant was convicted of delivery of a controlled substance. The amount of the fine was based upon the “street value” of the contraband. We agree with the trial court that the fine was mandatory. Also, we choose to follow the holding of People v. Ruff (1983), 115 Ill. App. 3d 691, wherein the court found that a mandatory fine under section 5 — 9—1.1 did not violate the due process and separation of powers provision of the Illinois Constitution. Therefore, we uphold the imposition of the fine against the defendant.

For the reasons set forth above, the conviction for calculated criminal drug conspiracy is reversed. The sentence of probation on the delivery of a controlled substance conviction is also reversed. The case is remanded for resentencing on the conviction for delivery of a controlled substance.

Reversed in part; affirmed in part; remanded.

SCOTT and STOUDER, JJ., concur.


author: PRESIDING JUSTICE MEJDA

text:
    FIRST NATIONAL BANK OF SKOKIE et al., Plaintiffs-Appellees, v. VERA M. PUETZ, Defendant-Appellant.
    First District (5th Division)
    No. 83—2143
    Opinion filed May 11, 1984.
    Zukowski, Poper, Rogers & Flood, of Crystal Lake (David W. McArdle, of counsel), for appellant.
    J. Stirling Mortimer, Ltd., and Miriam Ellen Harrison, both of Chicago, for appellees.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

This is an interlocutory appeal from an order enjoining defendant from proceeding in a matter previously filed in McHenry County. The issue presented is whether the trial court abused its discretion in ordering the injunction. We reverse and remand.

On April 4, 1983, defendant herein, Vera M. Puetz, as administrator of the estate of John J. Puetz, filed in the circuit court of the Nineteenth Judicial Circuit, Probate Division, McHenry County, a citation to discover and recover assets. She alleged that she and the decedent were married and that the decedent had executed an inter vivos trust which provided that he was the sole beneficiary of the trust, that upon his death the beneficial interest would vest in his children from a former marriage and that the corpus of said trust consisted of several parcels of real estate located in Cook County. Defendant further alleged that the transfer of property to the trust was made with the fraudulent intent to deprive her of her statutory rights and prayed that the court find that the trust agreement was colorable, illusory and fraudulent to the extent that it defeated her widow’s award.

Approximately one month later, on May 17, 1983, plaintiffs herein, the First National Bank of Skokie as trustee and the named beneficiaries of the trust, filed the instant action, a bill to quiet title, alleging that defendant and the decedent had entered into an ante-nuptial agreement, that such agreement bars any and all claims of defendant which arise by reason of her marriage to decedent, and that defendant’s claim is a cloud upon plaintiffs’ title. Plaintiffs requested that defendant’s claim be declared illegal and void.

On June 10, 1983, defendant moved to dismiss this action pursuant to section 2 — 619(a)(3) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a)(3)) on the ground that there was another action pending between the same parties involving the same issues. The court denied the motion as well as defendant’s motion for reconsideration on June 28 and July 13, respectively.

On July 18, 1983, plaintiffs filed a petition for writ of injunction against defendant. The court found that the pending bill to quiet title is identical to the citation filed in McHenry County insofar as the relief requested and, further, that Cook County is the proper venue for determining the title of the subject real estate. Based upon these findings the court entered an interlocutory order enjoining defendant from further proceeding in the McHenry County action. Defendant appeals.

Opinion

The issue presented for review is whether the trial court erred in granting the injunction. Generally, one court of this State is not free to ignore an action pending in another court of this State between the same parties on the same subject. (People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 357 N.E.2d 534; People ex rel. Lehman v. Lehman (1966), 34 Ill. 2d 286, 215 N.E.2d 806; Venturi v. Bulk Petroleum Corp. (1979), 70 Ill. App. 3d 967, 388 N.E.2d 1147.) Where such actions are commenced in different courts having concurrent jurisdiction the court which first acquires jurisdiction retains a prior right to jurisdiction (People ex rel. Scott v. Jones (1970), 44 Ill. 2d 343, 255 N.E.2d 397) and other courts should decline jurisdiction of the identical action (People ex rel. East Side Levee & Sanitary District v. Madison County Levee & Sanitary District (1973), 54 Ill. 2d 442, 445, 298 N.E.2d 177).

In East Side Levee & Sanitary District the Madison County circuit court entered a temporary restraining order, denied a motion to dismiss and entered various other orders despite its knowledge of the pendency of a similar prior action in St. Clair County. Our supreme court stated that “[the Madison County court’s] acceptance of jurisdiction and issuance of orders conflicting with those of the St. Clair County court was not only clearly erroneous, but that such action can only serve to diminish public respect for the judicial system of this State.” 54 Ill. 2d 442, 445, 298 N.E.2d 177.

The grant or denial of a preliminary injunction rests within the sound discretion of the trial court, which will not be reversed absent an abuse of discretion. (Wolf & Co. v. Waldron (1977), 51 Ill. App. 3d 239, 243, 366 N.E.2d 603.) In the case at bar the trial court knew that the McHenry County action had been filed prior to the commencement of the instant action and, further, made a specific finding, which the parties have not disputed, that the two actions are identical in the relief prayed for. Therefore, the court should have declined jurisdiction in light of the prior pending action in which identical relief was sought. (See East Side Levee & Sanitary District v. Madison County Levee & Sanitary District (1973), 54 Ill. 2d 442, 298 N.E.2d 177; see also In re Marriage of Alder (1981), 98 Ill. App. 3d 525, 424 N.E.2d 763.) For the foregoing reasons we conclude that the trial court abused its discretion in entering the order which enjoined defendant from proceeding in the McHenry County action.

Accordingly, we reverse and remand the cause to the trial court with instructions to vacate the order enjoining defendant and for further proceedings not inconsistent with this opinion.

Reversed and remanded.

SULLIVAN and WILSON, JJ., concur.

      This opinion was adopted as the opinion of the court prior to the death of Mr. Justice Wilson.