text:
    PAUL RODE et al., Plaintiffs-Appellees, v. THE VILLAGE OF NORTHBROOK, Defendant-Appellant.
    First District (4th Division)
    Nos. 82 — 785, 82 — 810 cons.
    Opinion filed April 5, 1984.
    Clifford L. Weaver and Steven M. Elrod, both of Burke, Bosselman, Freivogel, Weaver, Glaves & Ryan, of Chicago, for appellant.
    William V. Johnson and Robert L. Nora, both of Johnson, Cusack & Bell, Ltd., of Chicago, for appellees.
   JUSTICE ROMITI

delivered the opinion of the court:

Appellant village of Northbrook appeals from an order of the trial court requiring Northbrook to issue to appellees Paul Rode and Radio Station WWX a permit for construction of a radio tower. The appellees had sought permission for construction of the tower by applying for a special use permit for a planned development and later by applying for a building permit (after appellees concluded that no special use permit was required). Northbrook contends that (1) certain provisions of the Northbrook Zoning Ordinance barred acceptance of either of the applications; (2) a new trial is required because the trial court considered certain inadmissible documentary evidence; (3) even assuming that Northbrook was not barred from accepting one of the applications, Northbrook acted reasonably in so doing.

Because we find that Northbrook’s zoning ordinance did bar acceptance of either of the applications we reverse the judgment of the trial court without reaching Northbrook’s other contentions.

The evidence at trial established the following pertinent facts. The subject property, a triangular-shaped parcel consisting of about 18,000 square feet, is located at 322 Skokie Boulevard in the village of Northbrook. Pursuant to the Northbrook Zoning Ordinance the property is zoned in a B-3 commercial zoning district. The front of the property, representing the base of the triangle, is currently developed with a building housing Allen Catering, a business owned and operated by appellant Rode, who is also the beneficial owner of the land. Rode testified that his gross income from the catering business in 1980 was approximately $500,000.

On January 21, 1980, Rode and WVVX filed with the village of Northbrook a petition for a special use permit for a planned development, consisting of a 245-foot radio tower and a supporting concrete structure, to be constructed within four feet of the rear of the property. Prior to this time Rode had contracted with William E. Paar, Jr., the general manager of WWX, to lease space to WWX for the construction, subject to Northbrook’s approval. Both Rode and Paar testified that it was on the advice of Samuel Lee, a Northbrook staff planner, that they framed their application as one for a planned unit development. Lee had informed them this was the only way to avoid a bar on having buildings dedicated to more than one primary use on the property. Northbrook’s village manager, Robert Wiedaw, testified that he had advised this approach in order to circumvent another problem, Northbrook’s building height restriction of 35 feet in B-3 districts. The Northbrook Plan Commission recommended to the Northbrook Board of Trustees that this special use be granted, also recommending that a variance be granted to permit the rear yard depth to be four feet rather than the required 25 feet. While the application was still pending before the board, Rode filed with Northbrook a building permit application. He testified that he did so because, on the advice of counsel, he had determined that the proposed radio tower would comply with Northbrook’s zoning requirements without the necessity of obtaining the exceptions permitted for a special use. The building permit application did not include plans for a supporting concrete structure and sought no rear yard variance.

On August 5, 1980, Rode received a letter from the Northbrook village manager, Robert Wiedaw, informing him that the board had informally determined that it would not grant the application for a special use permit for a planned development. On October 8, 1980, Wiedaw informed Rode that his building permit application for the radio tower would also probably be denied. Subsequently that application was returned to Rode.

This litigation was commenced in December 1980. At trial in addition to the evidence we have already summarized, there was a substantial amount of conflicting evidence presented concerning such matters as the adequacy of the radio tower’s design, its effect on contemplated development in the area, and its effect on real estate values. Because of our disposition of this cause we need not evaluate that evidence.

On January 11, 1982, the trial court entered an order requiring Northbrook to issue a building permit “allowing for the construction of the radio tower and supporting concrete structure referred to in the building permit application filed by the Plaintiffs on July 17, 1980.” On January 22 the trial court amended that order nunc pro tuno to also state that the issuance of the permit was subject to the relocation of the tower to meet the 25-foot rear-yard setback requirement. We cannot determine from this order or from the record which application the court found should be granted. Although the court referred to a building permit and to the July 17, 1980, date on which the application for a building permit was filed, the court also refers to the supporting concrete structure which was contemplated only in the original application for a special use permit for a planned development. Also the reference to the rear-yard setback requirement suggests that the court was referring to the special use application because only in that application was a variance sought from that restriction. Because of the confusion on this issue our review will be predicated on the assumption that the order can be construed to require granting either of the applications.

As we have already noted the first application filed by Rode was for a special use permit for a planned development. Rode contends that he was advised by a Northbrook planning official to apply for a planned development because only planned developments could have more than one principal building. (Defined in the ordinance as “a non-accessory building in which a principal use of the lot on which it is located is conducted” (Art. III(B) (15) of the Northbrook Zoning Ordinance).) Northbrook concedes that it advised Rode to seek a special use permit for a planned development, but contends that this was in order to circumvent another restriction, the 35-foot limitation on building heights in areas zoned B-3. (An ordinance provision entitled “Building Bulk Limitations” provides that in a B-3 district “*** in no case shall the building height exceed 3 stories or thirty-five (35) feet” (Art. IX(B)(4)(f))). Another ordinance provision permits the board of trustees, upon the recommendation of the plan commission, to authorize exceptions to the applicable bulk regulations in the case of planned development “*** provided that the Plan Commission shall find *** (5) That along the periphery of such planned development yards shall be provided as required by the regulations of the district.” (Art. VI(7)(d)(5).) A third ordinance provision specifies that the rear yard depth should be 25 feet. Art. IX(B)(f)(e).

But in order to qualify as a special use for a planned development a proposal would in any event have to meet the zoning ordinance criteria established for that classification. (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 13—1.1; Geneva Residential Association, Ltd. v. City of Geneva (1979), 77 Ill. App. 3d 744, 397 N.E.2d 849.) The Northbrook criteria for a planned development are set out in the ordinance as follows:

“ARTICLE VI 7: PLANNED DEVELOPMENT:

(a) Defined: A planned development is a use of land containing two or more buildings which offer benefits to the general welfare beyond those required by this Ordinance or other law, and which use of land
(1) will contain or provide amenities not otherwise required by law, including but not limited to provisions for common open space, recreational facilities, or specific design, engineering, architectural, site planning or landscaping features; or
(2) will establish yards or other open space greater than the mínimums required by law, and/or will provide for bulk of structures and density of development less than the máximums permitted by law; or
(3) will provide screening or other facilities which benefit neighboring property or the public beyond those otherwise required by law.”

Neither at trial nor on appeal has Rode contended that he even attempted to establish that his proposal would have provided any of these benefits so as to qualify it as a planned development. Rode contends that his proposed project did not constitute a second principal building and therefore it was not necessary to frame his proposal as a planned development and the planned development criteria became “superfluous.” We evaluate the merits of Rode’s contention on the principal building issue (as well as his contention that the height requirement was inapplicable) in our subsequent discussion of Rode’s building permit application. But without regard to those contentions, it is clear that Rode is ignoring the fact that he did apply for a special use permit as a planned development. He never sought to amend his application to eliminate this characterization and simply make it a special use application. We therefore hold that Northbrook correctly rejected this application because it did not comply with the criteria for a planned development.

Rode’s application also sought a variance from 25 feet to four feet in the rear-yard requirement. This presents a related basis for Northbrook’s rejection of the application. It is apparently undisputed that only the Northbrook Zoning Board of Appeals could grant a variance in the rear-yard requirement and Rode never sought such a variance from that body. Thus the Northbrook Board of Trustees did not have the authority to grant the application for a special use permit to the extent that it included this request for a variance in the rear yard requirement. We would also note that the board of trustees was only authorized to grant an exception to the height requirement if the rear yard requirement was satisfied, as it set out in article VI(7)(d)(5) which we have previously quoted.

The trial court apparently attempted to avoid the problem of the rear yard requirement by specifying in its order (as amended nunc pro tunc on January 22, 1982) that issuance of the building permit was subject to the relocation of the radio tower to meet the 25 foot rear-yard setback requirement. The parties have not addressed whether this proviso could properly permit the trial court to conclude that an otherwise proper rejection of the application was rendered improper by retroactively eliminating the impediment by judicial decree. But even assuming the order properly eliminated that basis for Northbrook’s decision the village was justified in its denial of the application because of the failure to comply with the criteria for a planned development.

Rode’s application for a building permit was submitted on the theory that he was not required to seek special use exemptions from the regulations. Apparently that application was never formally rejected but Northbrook informally advised Rode that it probably would not accept it and the application was returned to him. Rode has never challenged the validity or reasonableness of the restrictions on height, on principal buildings, or on rear-yard setbacks. He contends only that the restrictions did not apply to his proposal. If they did apply, as Northbrook contends, then it is clear that the building permit was also properly denied.

Rode’s proposed radio tower was to be 245 feet high. Northbrook contends that its ordinance provision limiting building height to 35 feet barred this tower. Rode contends that the tower was a structure, not a building, and as such was not subject to a height limitation on buildings. The pertinent definitions are contained in article III of the Northbrook Zoning Ordinance:

“ARTICLE III
RULES AND DEFINITIONS
In the construction of this Ordinance, the rules and definitions contained in this Article III shall be observed and applied, except when the context clearly indicates otherwise.
A. Rules
6. The word “building" includes all other structures of every kind, regardless of the similarity to buildings. (Article III — 3, Northbrook Zoning Ordinance.)
B. Definitions
11. A BUILDIN G is any structure built for the support, shelter or enclosure of persons, animals, chattels or movable property of any kind and which is permanently affixed to the land.
87. A STRUCTURE is anything erected, the use of which requires more-or-less permanent location on the ground, or attached to something having permanent location on the ground.”

We find that article (III)(A)(6) is controlling. Although buildings and structures are subsequently separately defined, the clear intent of this provision is that a reference to a building is to be construed as also referring to a structure. In choosing between two possible constructions of a statute or ordinance courts will act to avoid a construction producing absurd results. (Illinois National Bank v. Chegin (1966), 35 Ill. 2d 375, 220 N.E.2d 226; Balmes v. Hiab-Foco, A.B. (1982), 105 Ill. App. 3d 572, 434 N.E.2d 482.) If we were to adopt Rode’s construction it would lead to the absurd conclusion that Northbrook has set no height restriction on structures erected in a B — 3 district. Rode notes that in the ordinance provision stating that radio towers are permitted uses in B — 3 districts no height restriction is given:

“ARTICLE IX
BUSINESS DISTRICTS
B. DISTRICT REQUIREMENTS
4. B3 — Commercial District
(a) Permitted Uses
(32) Radio and television studios, stations, and towers for transmitting and receiving.”

But that provision also refers to radio stations as permitted uses. Thus by Rode’s construction such stations, although indisputably constituting buildings, would also be exempt from the height restriction contained in article (7)(d). Clearly that restriction was deemed to apply to the permitted uses set out in article IX without the necessity of repeating it in every listing.

Finally on this point Rode notes that in August 1980 Northbrook amended its building height restriction to provide for an exception “*** when expressly authorized pursuant to a Special Use Permit.” Rode contends that because a notice relating to this amendment was published July 17, 1980, the same day he filed his building permit application (an application premised in part on the contention that his radio tower would be a permitted use without any need for a special use application), it was intended to block him by transforming what had been a permitted use into one requiring a special use permit. This contention is without merit. The amendment could not have been in response to Rode’s building permit application because the record establishes that the first notice of the proposed amendment was published in June 1980, thus antedating Rode’s application. Furthermore if Northbrook had believed the pre-amendment restriction did not apply to structures and wished to .avoid Rode’s use of that omission, they would have amended the provision to specifically include structures. Instead the amendment only made it easier to obtain an exemption from the height restriction by providing that such exemption could be obtained by a special use application. As we have noted the only way to obtain such an exemption prior to that time was by applying as a planned development. The reason for the amendment was clearly set out in the testimony of Robert Wiedaw, the Northbrook village manager. He testified that as the result of Rode’s initial application for a special use as a planned development, the board of trustees recognized the need to expand the manner in which a height exemption could be obtained.

Because we have found that the height restrictions were applicable to Rode’s proposed tower, the board of trustees was justified in rejecting his building permit application on the ground that the radio tower would be in violation of that height restriction.

A second basis asserted by Northbrook for its rejection of the building permit application is that it violated the restriction on having only one principal building on a lot. Article IV(E) of the ordinance provides:

“NUMBER OF BUILDINGS ON A ZONING LOT. Except in the case of planned developments, not more than one principal detached building shall be located on any zoning lot in any zoning district nor shall a principal detached building be located on the same zoning lot with any other principal building in any zoning district. For the purpose of this paragraph, two or more buildings joined by a fence, canopy, freestanding wall or other nonfunctional connection shall not be considered to be one principal detached building. No structural group containing two or more upward projections shall be considered a single building unless all such upward projections are joined by elements of the structural group at least half as high as the tallest upward projection.”

Article III(B)(15) defines a principal building as “a nonaccessory building in which a principal use of the lot on which it is located is conducted.” Again Rode contends that this restriction was intended to apply only to buildings and not to a structure such as his proposed radio tower. Utilizing the same definitions cited earlier, we conclude that the word building in this provision was intended to include structures, as set out in article 111(A)(6). Clearly the intent of this provision is to restrict the principal uses to which a lot is placed. To say that a second principal use would be permitted in the case of a structure but not a building would detract from that purpose.

The final basis for denial of the building permit application asserted by Northbrook is that it was not in compliance with the 25-foot setback requirement for rear yards. As we have previously noted, a variance from that requirement could only be granted by the zoning board of appeals and no such variance was requested from them. However because the building permit application did not request such a variance we do not find this to be a proper basis for denial of the permit. In any event the other proper bases that we have discussed amply supported the denial of this application.

The judgment of the trial court is reversed.

Reversed.

LINN, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: JUSTICE MILLER

license: Public Domain

text:
    THE PEOPLE ex rel. NANCY McCOY, Plaintiff-Appellant, v. TERRY SHERMAN, Defendant-Appellee.
    Fourth District
    No. 4 — 83—0488
    Opinion filed April 4, 1984.
    Basil G. Greanias, State’s Attorney, of Decatur (Thomas M. Vaught, Assistant State’s Attorney, of counsel), for appellant.
    Brown, Hawkins, Basola & Mattingley, of Decatur (Rex L. Brown, of counsel), for appellee.
   JUSTICE MILLER

delivered the opinion of the court:

An Illinois statute requires that paternity actions be commenced during pregnancy or the child’s first two years of life; the major question in this appeal concerns the constitutionality of that time limit. The plaintiff, whose paternity action was dismissed because it had been filed more than two years after the birth of the child, argues that the two-year period of limitations violates the equal protection clause of the fourteenth amendment to the United States Constitution. The appellate court, sitting in the first district, has found the two-year period unconstitutional. (Jude v. Morrissey (1983), 117 Ill. App. 3d 782, 454 N.E.2d 24.) We agree with that decision.

The plaintiff gave birth to a child out of wedlock on February 14, 1978, and on June 9, 1980, began this action to establish the defendant’s paternity. The defendant moved to dismiss the complaint, relying on section 4 of the Paternity Act (Ill. Rev. Stat. 1981, ch. 40, par. 1354), which provides:

“No such action may be brought after the expiration of 2 years from the birth of the child. However, where the person accused has acknowledged the paternity of the child by a written statement made under oath or affirmation or has acknowledged the paternity of such child in open court, prosecution may be brought at any time within 2 years from the last time such acknowledgment was made or within 2 years from the last time the person accused contributed to the support, maintenance, education and welfare of the child subsequent to such acknowledgment. The time any person so accused is absent from or conceals himself within the State shall not be computed.”

The two-year time limit, which actually is a condition on the right to maintain this particular statutory action rather than a statute of limitations (Brown v. Box (1967), 38 Ill. 2d 80, 230 N.E.2d 204), is tolled during the mother’s minority but not during the child’s. (Barnett v. Clark (1983), 113 Ill. App. 3d 1091, 448 N.E.2d 254.) The plaintiff chose to stand on her challenge to the constitutionality of that provision and conceded that none of the exceptions to it were applicable here. The circuit judge dismissed the complaint as untimely, and this appeal followed.

In dismissing the complaint the circuit judge relied on Cessna v. Montgomery (1976), 63 Ill. 2d 71, 344 N.E.2d 447, which upheld the constitutionality of the time limit on bringing paternity actions and rejected the same argument made here. Since Cessna, the United States Supreme Court has invalidated another State’s two-year limitations period on these actions, however, and that result must control here.

In Pickett v. Brown (1983), 462 U.S. 1, 76 L. Ed. 2d 372, 103 S. Ct. 2199, the Supreme Court held that Tennessee’s two-year limitations period on paternity actions violated the equal protection clause of the fourteenth amendment. In determining that the statute was unconstitutional, the court applied the equal protection analysis that it had used a year earlier in Mills v. Habluetzel (1982), 456 U.S. 91, 71 L. Ed. 2d 770, 102 S. Ct. 1549, which invalidated a Texas statute barring paternity actions more than one year after the child’s birth. The scrutiny appropriate to classifications based on illegitimacy falls somewhere between the most rigorous and the least rigorous, and under Pickett and Mills a time limit on bringing paternity actions must satisfy two related requirements: it must be long enough to give potential plaintiffs a reasonable opportunity to bring their actions, and it must be substantially related to the State’s interest in barring stale and fraudulent actions.

The Tennessee statute at issue in Pickett did not bar an action if the father had acknowledged paternity in writing or by furnishing support or if the child, while under 18 years of age, was liable to become a public charge, but it was not tolled during the child’s minority. At least some illegitimate children, thus, would be subject to the short deadline. The court concluded that the statute failed to satisfy either requirement of its equal protection analysis. First, two years did not provide a reasonable opportunity for bringing an action. The court believed that the two-year period was not sufficiently longer than the one-year statute invalidated in Mills, for the emotional, social, and financial obstacles to filing a paternity suit shortly after giving birth would continue into the second year of the child’s life. Second, the two-year period was not substantially related to a legitimate interest in barring stale or fraudulent actions. The court gave several reasons to justify this conclusion: the two-year period was too brief to perform with any precision the function assigned to it; the exception in the statute for children receiving public aid conflicted with the State’s avowed purpose in imposing a time limit; it was not tolled during the child’s minority, unlike other statutes of limitations in Tennessee; disproof of paternity is increasingly based on reliable scientific tests, which reduces the importance of a limitations period in barring stale or fraudulent actions.

We agree with the court in Jude that the substantial similarity between the Illinois statute at issue here and the Tennessee statute invalidated in Pickett requires that the Illinois time limit also be found unconstitutional; Cessna has been effectively overruled on this question, and we are bound by Pickett (People v. Stansberry (1971), 47 Ill. 2d 541, 268 N.E.2d 431; Corbett v. Devon Bank (1973), 12 Ill. App. 3d 559, 299 N.E.2d 521).

The defendant also argues that the action should be dismissed under the equitable doctrine of laches. The defendant points to the 14-month delay between the time the plaintiff signed her complaint, April 16, 1979, and the time it was finally filed, June 9, 1980. Laches, or stale demand, “is applied where there is ‘such neglect or omission to assert a right, taken in conjunction with a lapse of time of more or less duration and other circumstances causing prejudice to an adverse party, as will operate to bar relief in equity.’ (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 552.)” (Thurston v. State Board of Elections (1979), 76 Ill. 2d 385, 388, 392 N.E.2d 1349, 1350-51.) As the definition illustrates, the doctrine is limited to actions in equity (Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 390 N.E.2d 393) and therefore has no role here.

Reversed and remanded.

TRAPP and WEBBER, JJ., concur.


author: JUSTICE STAMOS

text:
    GERALD B. SALTZBERG, Plaintiff-Appellee, v. RONALD S. FISHMAN, Defendant-Appellant (Fishman & Fishman, Ltd., et al., Counterplaintiffs-Appellants, v. Fishman and Fishman and Saltzberg, P.C., et al., Third-Party Defendants and Counterdefendants-Appellees).
    First District (2nd Division)
    No. 82 — 2742
    Opinion filed April 10, 1984.

      Stewart I. Gartner, of Chicago (Neal D. Rosenfeld, of counsel), for appellant.
    John C. Pendergast, of Chicago, for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

A dispute arose between the firm of Fishman & Fishman (the firm), of which plaintiff Gerald Saltzberg was a partner, and defendant Ronald Fishman, who had been terminated as an associate with the firm. The dispute resulted in a memorandum agreement executed by both the firm and Fishman. Subsequently, a dispute arose regarding compliance with the agreement and the firm filed suit for an injunction and damages against Fishman. This suit resulted in a settlement agreement which was incorporated into a consent decree along with the previous memorandum agreement. When defendant Fishman failed to comply with the terms of the consent decree, plaintiff Saltzberg filed a post-decree petition for an accounting. Fishman filed a motion to dismiss, affirmative defenses, a counterclaim and a third-party claim. Following a hearing on the matter, defendant’s motion was denied, his claims were dismissed, and his defenses were rejected. The court ordered defendant to comply with the terms of the consent decree and to pay over to the plaintiff Saltzberg fees which were due under the decree. The court also enjoined both parties from using the name of Fishman & Fishman. Defendant Fishman appeals from this order.

Prior to 1973, the law firm of Fishman & Fishman was a partnership composed of three brothers: Julius, Samuel and Jacob Fishman. Gerald Saltzberg became a full partner in February 1973. Jacob died in February 1973 and Samuel died in July 1973. This left Saltzberg and Julius Fishman as the sole surviving partners. Ronald Fishman was an associate with the firm and was never a partner.

On July 30, 1973, defendant was given 30 days’ notice that his employment with Fishman & Fishman was being terminated. During August, defendant allegedly copied the firm ledger and attempted to lure clients away from the firm. By the end of the month, defendant had persuaded 16 clients of the firm to retain him as their attorney. This was allegedly accomplished while defendant was still employed with the firm and receiving a salary.

In an effort to recover the ledger sheets and firm files, the firm filed suit against defendant Fishman. Following numerous hearings, the parties entered into a memorandum agreement. Disputes arose concerning compliance with this agreement, and the firm filed an action in chancery seeking injunctive relief and damages against defendant.

On April 28, 1975, the parties executed a settlement agreement which was incorporated into a consent decree along with the previously executed memorandum agreement. Under the terms of the decree, the files which had been removed by defendant were divided into group “A” and group “B.” Group A files were brought into the firm by defendant and, under the decree, were classified as defendant’s property. Defendant’s only obligation concerning group A files was to reimburse the firm for $7,200 in expenses which it had incurred on these files.

As to group B files, defendant’s only relationship with these files was the assigned work he did on them as an employee of the firm. Under the decree, defendant was to receive 55% and the firm was to receive 45% of fees earned on group B files. Upon closing these files, defendant was to return them, pay the fees due the firm and reimburse the firm for costs previously expended. The decree also addressed the parties’ right to certain firm names.

After leaving Fishman & Fishman, defendant established his own firm, Fishman & Fishman, Ltd. Defendant allegedly listed the new firm in Sullivan’s Law Directory under the name Fishman & Fishman and listed Jacob Fishman as if he had been a member of defendant’s new law firm prior to his death.

Under the consent decree, Gerald Saltzberg and his partner Julius Fishman were given exclusive right to the name Fishman & Fishman “or any name of their choosing other than Fishman & Fishman, Ltd.” Defendant Fishman was given exclusive right to the name of Fishman & Fishman, Ltd. “or any name of [his] choosing other than Fishman & Fishman.” Soon after the execution of the consent decree, Fishman & Fishman was dissolved and plaintiff Saltzberg started a new firm, Fishman and Fishman and Saltzberg, P.C. Plaintiff Saltzberg retained the name of Fishman .& Fishman on the building’s directory and on stationery used by the new firm.

After entry of the consent decree, defendant paid $22,000 on nine of the 16 cases listed on the group B list. Thereafter, defendant failed to make any further payments. Plaintiff Saltzberg then filed for post-decree relief to force defendant to abide by the terms of the consent decree.

In response to plaintiff’s action, defendant filed a counterclaim and several affirmative defenses. Under the counterclaim, defendant charged plaintiff with breaching the terms of the consent decree. The affirmative defenses included: fraud, misrepresentation, and a charge that the settlement agreement constituted an illegal fee splitting arrangement. The motion to dismiss charged that because one of the parties to the agreements underlying the consent decree was the partnership of Fishman & Fishman, any suit to enforce the decree must include both partners. Because the post-decree action was instituted by only one of the partners, Gerald Saltzberg, defendant asked that the suit be dismissed.

Prior to filing his third amended complaint, plaintiff Saltzberg secured an assignment from Julius Fishman, the other partner of the firm, under which plaintiff was assigned all of Fishman’s rights to seek post-decree relief and to receive all sums resulting therefrom. Defendant’s motion to dismiss was thereafter denied. Following a hearing on plaintiff’s request for post-decree relief, defendant’s counterclaim, affirmative defenses and third-party complaint were denied. Defendant was ordered to comply with the terms of the consent decree and to pay over to plaintiff the fees to which he was entitled, plus any interest earned on those fees during the period that defendant wrongfully retained them. The court also enjoined both parties from using the name of Fishman & Fishman. Defendant appeals from the court’s order.

Defendant’s first contention, which is in two parts, concerns plaintiff’s standing to initiate the suit which is the subject of this appeal. Initially, defendant contends that the agreements underlying this action are the property of a professional corporation and that therefore Gerald Saltzberg has no authority to maintain this action on his own behalf. Alternatively, defendant contends that if the agreements are deemed to be the property of the partnership of Fishman & Fish-man, both partners in that firm must join in the suit as plaintiffs.

Defendant first contends that the firm of Fishman and Fishman and Saltzberg, P.C., rather than plaintiff, is entitled to bring the instant action. This contention presumes that the agreements which are the subject of this suit somehow became the property of the successor corporation upon dissolution of the partnership of Fishman & Fish-man. However, there is no evidence to support this presumption.

Defendant’s obligations under the consent decree ran to the firm of Fishman & Fishman. Thus, the right to sue to enforce the decree belonged to the firm. Thereafter, the firm dissolved. But this dissolution did not terminate the partnership. A partnership continues until all its affairs are wound up. (Thanos v. Thanos (1924), 313 Ill. 499, 506, 145 N.E. 250.) One of the “affairs” that remained uncompleted following the firm’s dissolution was the collection of fees under the consent decree. Toward this end, the firm was entitled to sue, even after dissolution, to enforce its rights under the decree. (See Larsen v. Sjogren (1951), 67 Wyo. 447, 462, 226 P.2d 177, 181.) This is precisely what occurred in the instant case. After the dissolution of Fishman & Fishman, defendant failed to comply with the terms of the consent decree and a suit was filed to force compliance. This was a natural part of the winding up of the affairs of Fishman & Fishman. As long as the decree’s terms were not complied with, the firm was not terminated.

Defendant also asserts that somehow after dissolution, the consent decree became the property of plaintiff’s new firm, Fishman and Fishman and Saltzberg, P.C. Defendant points to no evidence in the record to support this assertion and cites no authority to suggest that such a transfer occurred automatically by operation of law. We conclude that the agreements in the consent decree remained the property of Fishman & Fishman after dissolution and that it retained the power to enforce its rights thereunder.

Alternatively, defendant contends that if the rights under the consent decree are the property of Fishman & Fishman, a suit to enforce those rights must include both partners. In the instant case, Julius Fishman and Gerald Saltzberg were the only surviving partners of Fishman & Fishman. The post-decree suit for an accounting, however, was instituted by Saltzberg alone. Defendant asserts that because Julius Fishman was not a party to Saltzberg’s action, the action should have been dismissed.

Prior to the filing of his third amended complaint, however, plaintiff Saltzberg secured an assignment from Julius Fishman of all of Fishman’s rights under the consent decree upon which Saltzberg’s action was based. Saltzberg produced a written assignment, signed by Julius Fishman and Saltzberg, which stated that Fishman was assigning his rights under the decree to Saltzberg. Defendant claims that the assignment was invalid and that the suit should have been dismissed.

Under the law of partnerships, the right to receive profits and surplus is personal property and, as such, is assignable. (Sahs v. Sahs (1977), 48 Ill. App. 3d 610, 612, 363 N.E.2d 156.) A chose in action is also personal property and is assignable. (See Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 947, 338 N.E.2d 912.) A suit to enforce a chose in action may properly be brought in the name of the assignee. See Ill. Rev. Stat. 1981, ch. 110, par. 2 — 403(a).

In the instant case, Julius Fishman possessed a chose in action to enforce his rights under the consent decree. Fishman’s rights under the decree were personal property and Fishman had the power to assign those rights. He exercised that power when he assigned his interests in the instant litigation to Gerald Saltzberg. Following this assignment, Saltzberg, as assignee, properly instituted the action in his own behalf. See Ill. Rev. Stat. 1981, ch. 110, par. 2— 403(a).

Defendant next contends that he was entitled to rescind the agreements which were incorporated into the consent decree on the grounds that: (1) plaintiff breached the agreements underlying the decree; (2) there was a mutual mistake as to the agreements; and (3) plaintiff utilized fraud and misrepresentation to induce defendant to enter into the agreements.

Initially, defendant asserts that plaintiff breached the terms of the consent decree. This alleged breach concerns the following provision of the settlement agreement:

“[Ronald Fishman] acknowledge^] and agree[s] that [Julius Fishman and Gerald Saltzberg] and their successors shall have the right to practice law under the firm name of FISHMAN and FISHMAN, or any name of their choosing other than FISHMAN and FISHMAN, LTD. ***.”

Defendant argues that this provision authorized plaintiff to use either the name Fishman & Fishman or another name, but not Fishman & Fishman and another name. Apparently, Saltzberg continued to use the name of Fishman & Fishman on the building directory and on stationery after dissolution of the firm and after founding the firm of Fishman and Fishman and Saltzberg, P.C. Defendant contends that the above-quoted provision prohibited Saltzberg’s continued use of the name Fishman & Fishman after a successor firm had been established. An examination of the language of the consent decree does not support defendant’s assertion.

The above-quoted provision authorizes Saltzberg to use the name Fishman & Fishman “or” any name other than Fishman & Fishman, Ltd. The thrust of this provision is both to authorize Saltzberg to use the name “Fishman & Fishman” and to prohibit him from using the name “Fishman & Fishman, Ltd.” The provision is not designed to determine if Saltzberg is authorized to use the name Fish-man & Fishman and another firm name simultaneously. Indeed, another provision of the decree indicates that the parties were primarily concerned with preserving their exclusive right to their then existing names.

“[Julius Fishman and Gerald Saltzberg] acknowledge and agree that [Ronald Fishman] shall have the right to practice law under the firm name of FISHMAN and FISHMAN, LTD., or any name of [his] choosing other than FISHMAN and FISHMAN * * * 11

On their face, the above-quoted provisions do not reveal that Saltzberg’s use of two firm names constituted a breach of the consent decree’s terms. The meaning to be given the words in a written instrument is a determination for the court to make in the first instance. (Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 974, 418 N.E.2d 59.) And the determination of whether a breach of an agreement has occurred is a matter for the trier of fact. (Bard v. Harvey (1979), 74 Ill. App. 3d 16, 20, 392 N.E.2d 371, cert. denied (1983), 459 U.S. 1172, 74 L. Ed. 2d 1016, 103 S. Ct. 819.) Under these principles of law, we affirm the trial court’s finding that plaintiff did not breach the terms of the consent decree.

Defendant also asserts that, at the time the agreements which are a part of the consent decree were executed, plaintiff intended to use the name of Fishman & Fishman and the name of the successor corporation simultaneously. Defendant characterizes this as an intent to breach the terms of the decree and concludes that plaintiff thereby committed fraud. This assertion is in error for two reasons. First, it presumes that Saltzberg’s simultaneous use of two firm names was a breach of the terms of the consent decree. But as has been discussed above, the decree did not address the propriety of Saltzberg's actions and it does not appear that the parties to the decree intended to prohibit the use of two firm names. Second, defendant’s charge that plaintiff intended to commit fraud when he executed the agreements is a mere conclusion. Defendant asserts that it is “quite evident” that plaintiff intended to breach the terms of the decree. Defendant has not, however, attempted to support this statement -with even a single citation to the record and an examination of the record reveals no evidence of an intent to breach the decree. The burden of proof as to the defense of fraud was with defendant and it is apparent that he has failed to meet that burden. See In re Marriage of Held, (1979), 73 Ill. App. 3d 561, 565, 392 N.E.2d 169.

Alternatively, defendant charges that a mutual mistake justifies his rescission of the agreements underlying the consent decree. Defendant has made no effort to analyze this defense element by element (see John Burns Construction Co. v. Interlake, Inc. (1982), 105 Ill. App. 3d 19, 25, 433 N.E.2d 1126), and has not cited evidence in the record to support his charge. As with the defense of fraud, defendant has failed to meet his burden of proving the defense of mutual mistake. See Pernod v. American National Bank & Trust Co. (1956), 8 Ill. 2d 16, 21-22, 132 N.E.2d 540.

Defendant next contends that the consent decree is unenforceable because it provides for illegal fee splitting. Under the decree, the fees derived from certain cases taken from Fishman & Fishman by defendant were to be divided between defendant and the firm as provided in the memorandum agreement. Most of the fees were to be divided 45% for the firm and 55% for defendant. Defendant characterizes this as fee splitting which is against public policy and unenforceable.

What defendant fails to acknowledge, however, is that the clients in the cases which were the subject of the decree contracted with the firm of Fishman & Fishman. Technically, the cases belonged to the firm. Defendant, as an employee of the firm, was assigned the task of handling the cases. And even clients which came directly to defendant belonged to the firm because the employment of one member of a firm is employment of the entire firm. (Smith v. Brittenham (1884), 109 Ill. 540, 554; Corti v. Fleisher (1981), 93 Ill. App. 3d 517, 521, 417 N.E.2d 754.) The fact that Fishman & Fishman was dissolved did not terminate their contractual relation with their clients. Walker v. Goodrich (1855), 16 Ill. 341, 342.

Defendant came into possession of and became responsible for the cases in issue during his employment with Fishman & Fishman. Following his dismissal from the firm, defendant took the files with him, but they remained the property of the firm. By assigning responsibility for the handling of these cases and providing for a distribution of the fees, the consent decree was not documenting an illegal fee splitting arrangement. It was simply perpetuating defendant’s employment with the firm for the limited purpose of disposing of cases on the group B list.

Defendant next contends that plaintiff’s continued use of the name of Fishman & Fishman after it was dissolved constituted an unauthorized use of the name, unfair competition, and a deceptive trade practice. Defendant cites “An Act to prohibit the counterfeiting and imitation of trademarks and the unauthorized use of trademarks and trade names” (Ill. Rev. Stat. 1981, ch. 140, pars. 23 through 28) and section 2 of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1981, ch. 121V2, par. 312) in support of this contention. But some of the penalty provisions which defendant cites are criminal in nature and defendant has no standing to request the imposition of these penalties against plaintiff. The remaining provisions dealing with unfair competition and deceptive trade practices are grounded on the premise that plaintiff’s continued use of the name Fishman & Fishman after dissolution was wrongful. But we earlier found that the consent decree of April 28, 1975, gave plaintiff Saltzberg and Julius Fishman exclusive right to use the name Fishman & Fishman and that the decree did not preclude the use of that name in conjunction with the name of a successor firm. It does not appear, therefore, that plaintiff’s use of the name Fishman & Fishman was wrongful. Moreover, defendant consented to plaintiff’s exclusive use of that name. Under the consent decree entered into by plaintiff and defendant, plaintiff and Julius Fishman were given the exclusive right to use the name Fishman & Fishman. Thus, plaintiff could have continued to practice under that name alone. Had plaintiff elected to do this, defendant would clearly have had no basis for objection because of his consent to plaintiff’s exclusive use of that name. We find that plaintiff’s decision not to continue under the name Fishman & Fishman does not negate the effect of defendant’s consent. Accordingly, we find that defendant’s consent to plaintiff’s exclusive use of the name Fishman & Fishman precludes defendant from alleging that this use constituted unfair competition and a deceptive trade practice.

Defendant’s final contention concerns the award to plaintiff of the amount of fees due plaintiff, plus interest earned on those fees. Prior to plaintiff’s post-decree petition for an accounting, defendant deposited $100,000 in fees received from cases on the group B list and invested it in a certificate of deposit. By the time that the ruling on the post-decree petition was entered, the $100,000 had earned $44,000. In its order, the court awarded the entire $144,000 to plaintiff. Defendant contends that this constituted an unauthorized award of interest on a judgment.

The general rule is that in the absence of a contract or statutory provision, interest on a judgment is not recoverable. (Shelby v. Sun Express, Inc. (1982), 107 Ill. App. 3d 362, 366, 437 N.E.2d 764.) But this rule concerns interest which the court awards to compensate a judgment creditor for the period between judgment and payment during which the creditor is not able to utilize the money to which he is entitled. The situation in the instant case is entirely different.

Here, defendant retained certain fees in violation of a consent decree and proceeded to earn interest on that money until plaintiff secured a post-decree order. To allow defendant to retain the interest earned under these circumstances would be unjust. By granting plaintiff the principle amount plus the interest earned, the court was not granting unauthorized post-judgment interest. Rather, it was exercising its equitable powers to avoid unjustly enriching defendant for his wrongdoing. Under these circumstances, the court’s award of interest was proper.

For the reasons expressed herein, the judgment of the circuit court is affirmed.

HARTMAN, P.J., and DOWNING, J., concur.


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PAUL R. HORBERG, Defendant-Appellee.
    Fourth District
    No. 4 — 83—0598
    Opinion filed April 5, 1984.

      Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Rebecca L. White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert G. Frederick, of Johnson, Frank & Frederick, of Urbana, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

The defendant was issued a traffic citation on June 5, 1983, for “driving under the influence.” He was requested to submit to a chemical test and he refused to do so. On June 28, 1983, the defendant filed a petition requesting a hearing on whether his driver’s license should be suspended pursuant to section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11 — 501.1). An implied consent hearing was subsequently scheduled for August 22, 1983. On that date the defendant filed a motion to dismiss or in the alternative for a directed finding. At the hearing, the court directed a finding in favor of the defendant. The court found that the ticket which had been issued to the defendant was void and therefore the State could not prove that he was arrested as required by section 11 — 501.1 of the Illinois Vehicle Code. The State filed its timely notice of appeal on August 30,1983.

Initially, we note that an implied consent hearing is a civil proceeding and an adverse final judgment is appealable by the State in the same manner as other civil proceedings. People v. Matulis (1983), 117 Ill. App. 3d 876, 454 N.E.2d 62.

In holding as it did here, the circuit court apparently agreed with the defendant’s contention that, for the purposes of an implied consent hearing, a defendant’s arrest must be evidenced by the issuance of a valid uniform traffic ticket. The defendant contends that the ticket issued to him is void because it describes his offense merely as “driving under the influence.” The State, on the other hand, argues that even if this ticket may be insufficient for the purpose of serving as a complaint in a criminal trial, it is a sufficient means of proving an arrest for the purposes of an implied consent hearing. We agree.

Illinois courts have divided as to whether the language involved here is sufficient to charge a criminal offense. (Compare People v. Utt (1983), 122 Ill. App. 3d 272, and People v. Tucker (1971), 131 Ill. App. 2d 598, 268 N.E.2d 191.) However, that is not the issue here.

Under the provisions of section 11 — 501.1 of the Illinois Vehicle Code any person who drives a motor vehicle upon Illinois highways impliedly consents to submit to a chemical analysis of his blood, breath, or urine for the purposes of determining the alcohol content of such person’s blood if that person has been arrested for driving while under the influence of alcohol. If the arrested person fails to submit to such a test, further procedures are provided under the terms of section 11 — 501.1(c), which reads as follows:

“The clerk shall thereupon notify such person in writing that the person’s privilege to operate a motor vehicle will be suspended unless, within 28 days from the date of mailing of the notice, such person shall request in writing a hearing thereon; if the person desires a hearing, such person shall file a complaint in the circuit court for and in the county in which such person was arrested for such hearing. Such hearing shall proceed in the court in the same manner as other civil proceedings, shall cover only the issues of whether the person was placed under arrest for an offense as defined in Section 11— 501 of this Code or a similar provision of a local ordinance as= evidenced by the issuance of a uniform traffic ticket; whether the arresting officer had reasonable grounds to believe that such person was driving or in actual physical control of a motor vehicle while under the influence of alcohol, other drug, or combination thereof; and whether such person refused to submit and complete the test or tests upon the request of the law enforcement officer. Whether the person was informed that such person’s privilege to drive would be suspended if such person refused to submit to the test or tests shall not be an issue.” Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.1(c).

In the “implied consent” hearing, the court does not suspend the driver’s license. Rather, that is the purely administrative function of the Secretary of State and is not penal in nature. (People v. Finley (1974), 21 Ill. App. 3d 335, 315 N.E.2d 229.) The purpose of the hearing “is merely to comply with the due process clause to provide defendant with a forum and to afford him a meaningful hearing to determine if he refused to consent to a breath test after being lawfully arrested for driving while under the influence of intoxicating liquor.” (21 Ill. App. 3d 335, 340, 315 N.E.2d 229, 232-33.) The hearing covers only the issues of (1) whether the person was placed under arrest for an offense described in section 11 — 501, (2) whether the arresting officer had reasonable grounds to believe that such person was driving while under the influence of alcohol, and (3) whether such person refused to submit to the test upon the request of the law enforcement officer.

The defendant contends that another issue to be decided at the implied consent hearing is whether or not a uniform traffic ticket has been issued. He claims that the issuance of a valid traffic ticket is a requirement of section 11 — 501.1. However, this court has recently held that “the issuance of a ticket is directory and not mandatory; it is only one way in which the fact of arrest may be established.” (People v. Ellerbusch (1983), 118 Ill. App. 3d 500, 503, 454 N.E.2d 1166, 1168.) Contrary to the defendant’s contention, this language was not “dicta.” Moreover, the issue to be decided at the hearing is whether the person was arrested and not whether or not a ticket evidenced the arrest. Here, the allegedly invalid ticket is certainly evidence of an arrest, regardless of its sufficiency as the basis for criminal charges.

Section 11 — 501.1 should be liberally construed to accomplish its obvious purpose: to protect the citizens of Illinois upon its highways. (Ellerbusch.) To that end, the issuance of a traffic ticket is only one way to establish the fact that an arrest was made. The circuit court’s finding that the defendant was not placed under arrest because a void traffic ticket was issued is therefore error. The court’s judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

TRAPP and MILLER, JJ., concur.


author: JUSTICE O’CONNOR

text:
    MAXWELL FIELDS et al., Plaintiffs-Appellants and Counterdefendants-Cross-Appellees, v. SAMUEL W. SAX et al., Defendants-Appellees and Counterplaintiffs-Cross-Appellants.
    First District (4th Division)
    No. 83 — 1040
    Opinion filed April 12, 1984.

      Russell J. Topper, Edward Berman, and Hoffman & Davis, P.C., all of Chicago, for appellants.
    Selwyn Zun and Robert W. Gettleman, both of D’Ancona & Pflaum, of Chicago, for appellees Exchange National Bank of Chicago and Exchange International Corporation.
    Kevin M. Forde, of Kevin M. Forde, Ltd., R. A. Mantynband, of Arvey, Hodes, Costello & Burman, N. J. Motherway, of Motherway & Glenn, and Richard J. Prendergast, Ltd., all of Chicago, for other appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This appeal arises from the granting of defendants’ motion for judgment at the close of plaintiffs’ case. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1110.) The cause of action, a derivative suit by shareholders of Exchange National Bank, was originally filed in 1970. The defendants, George Sax, Samuel Sax, Samuel Bergman, Melvin Lippe and Walter Hepner, were directors of the nominal defendant, Exchange National Bank. George Sax was the chairman of the board of directors until his death in 1974, and Samuel Sax was the president of the bank. Jerome Sax was the nominal plaintiff in the original action, which also included several personal claims. These latter claims are not part of this appeal.

In Sax v. Sax (1977), 48 Ill. App. 3d 431, 363 N.E.2d 16, this court upheld, on equity grounds, a trial court determination that Jerome Sax was an improper plaintiff to prosecute the derivative action. The trial court’s order was modified, however, to require notice be given to the other shareholders of record so that they be given the opportunity to carry on the litigation. After successfully intervening in this cause, plaintiffs filed their amended derivative action. The basic claims made in the amended action remained the same: (see 48 Ill. App. 3d 431, 432-33)

1. Defendant paid excess fees, salaries and expenses to George Sax from 1969 to his death in 1974 when he was too ill due to heart disease to perform his duties.

2. Bank funds were misapplied in settlement of the claims of the receivers of American Allied Insurance Company, Bell Mutual Casualty Company and Bell Casualty Company. These claims arose out of certain loan transactions between the bank and Philip Kitzer, Jr. (Kitzer transactions).

3. An improper and illegal loan was made to George Lieder-man. This loan was allegedly increased periodically without the collection of interest or principal.

4. A loan was made to Marvin Hornstein, a nephew of George Sax, which was illegal, excessive and improperly made with the knowledge that repayment could not be made.

Plaintiffs presented their case in chief over 13 days of trial. The evidence will be discussed as it related to the various issues on appeal. The allegations relating to the Hornstein loan were withdrawn.

Upon defendants’ motion, and after considering arguments from all the parties, the trial court entered judgment for defendants on each claim. The trial court found that George Sax performed important services to the bank as chairman of the board despite suffering from “periods of acute illness” and that no funds were improperly paid to him. It was further determined that plaintiffs had not proved that defendants violated the National Bank Act (12 U.S.C. sec. 21 et seq. (1976)) or the bank’s lending procedure with regard to the alleged illegal loans. The trial court also found there was no proof that any defendants participated in the Kitzer transactions. The settlement of the litigation arising out of those transactions was determined to be “a prudent exercise of directional discretion and judgment.” For similar reasons, the Liederman loan, of which approximately 86% of the balance was collected, was found to have been properly settled.

Plaintiffs appeal contending: (1) the trial court’s judgment for defendants was improper; (2) defendants have the burden of proving they did not act in their own self-interest during the alleged transactions; and (3) the evidence at trial showed funds were misappropriated in paying George Sax for services that were never performed and in settling fraudulent loan transactions. We affirm.

The controlling issue is whether judgment in defendants’ favor at the close of plaintiffs’ case in chief was correct. When ruling on a motion under section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1110), the trial court must weigh all the evidence, including any favorable to the defendant, pass on the credibility of witnesses, draw reasonable inferences from the testimony, and generally consider the weight and quality of the evidence. (Ko kinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43; Stender v. National Boulevard Bank (1983), 114 Ill. App. 3d 1041, 449 N.E.2d 873, appeal denied (1983), 96 Ill. 2d 551.) The trial court should apply a two-step analysis when ruling on the motion, determining first whether a prima facie case has been presented, and if so, weighing the evidence to determine if a prima facie case still exists. (Kokinis v. Kotrich; Chicago Title & Trust Co. v. Ceco Corp (1980), 92 Ill. App. 3d 58, 415 N.E.2d 668.) The trial court’s decision will not be reversed unless it is contrary to the manifest weight of the evidence. Kokinis v. Kotrich.

Plaintiffs state that defendants, as directors, bear the burden of proof as fiduciaries. (Briggs v. Spaulding (1891), 141 U.S. 132, 35 L. Ed. 662, 11 S. Ct. 924; Shlensky v. South Parkway Building Corp. (1960), 19 Ill. 2d 268, 166 N.E.2d 793.) It is contended that under this burden defendants must prove the fairness of each and every act beyond a shadow of suspicion. Karris v. Water Tower Trust & Savings Bank (1979), 72 Ill. App. 3d 339, 389 N.E.2d 1359; Majewski v. Gallina (1959), 17 Ill. 2d 92,160 N.E.2d 783.

We agree with plaintiffs’ assertion that defendants, as directors, stood in a fiduciary relationship with the bank and its shareholders. However, plaintiffs misapprehend the applicability of these basic tenets to the case at hand. The party asserting a fiduciary relationship, and a breach thereof, “must also affirmatively show that [the defendant] was the dominant party and that it gained” from the transaction. (Brown v. Commercial National Bank (1968), 94 Ill. App. 2d 273, 279, 237 N.E.2d 567, aff’d (1969), 42 Ill. 2d 365, 247 N.E.2d 894, cert. denied (1969), 396 U.S. 961, 24 L. Ed. 2d 425, 90 S. Ct. 436.) This rule of law was applied in Karris where it was determined the plaintiff failed to show that the bank directors profited from the transactions at issue. 72 Ill. App. 3d 339, 354.

Plaintiffs further rely on Santarelli v. Katz (7th Cir. 1959), 270 F.2d 762, to place the burden of proof on defendants. In that case, executive compensation in a family-owned corporation was determined by the executives who were acting in their capacity as directors. The defendant-executives had to meet the burden of proving the fairness of the compensation paid to themselves as officers and directors. Plaintiffs in this case neither alleged nor established that George Sax participated in any board decisions relating to his compensation.

Plaintiffs allege the wrongful payment of compensation to George Sax and the wrongful settlement of the Kitzer transactions and Liederman loan. Directors must exercise that degree of care and prudence that men prompted by self-interest exercise in the management of their own affairs. (Romanik v. Lurie Home Supply Center, Inc. (1982), 105 Ill. App. 3d 1118, 435 N.E.2d 712.) A corporate director will not be held liable for honest errors or mistakes of judgment as long as the decision does not involve fraud, illegality or conflict of interest. (See Lower v. Lanark Mutual Fire Insurance Co. (1983), 114 Ill. App. 3d 462, 448 N.E.2d 940; Romanik v. Lurie Home Supply Center; 3A W. Fletcher, Cyclopedia of the Law of Private Corporations secs. 1039-40 (rev. perm, ed 1975.) Further, where the acts complained of are corporate decisions which fall within the purview of the business judgment rule, this court is without authority to substitute its judgment for the lawful decisions of the directors. See Shlensky v. Wrigley (1968), 95 Ill. App. 2d 173, 237 N.E.2d 776, appeal denied (1968), 39 Ill. 2d 627; Geeslin v. Blackhawk Heating & Plumbing Co. (1979), 80 Ill. App. 3d 179, 398 N.E.2d 1176.

Plaintiffs allege that bank funds used to pay George Sax’ salary, director’s fees and other expenses during the last six years of his life were misappropriated. The crux of this allegation is that George Sax was physically disabled and could not perform the services required of his position as chairman of the board. Plaintiffs also argue that George Sax was past the retirement age of 65 in 1969 and should have been forbidden to serve as chairman.

The evidence shows that George Sax suffered from organic heart disease for 12 years before he died of heart failure in 1974. He had two heart attacks and continued to suffer from coronary arteriosclerosis during the latter years of his life. George Sax took daily doses of medication for these and related illnesses. During the five-year period from 1969 to 1974 George Sax was hospitalized for 251 days. He also maintained an apartment in Florida where he lived for approximately three months a year.

Admittedly, George Sax was a very sick man and was described as such in the record by the doctors who treated him. He was also described by these doctors as being mentally alert and very capable despite the physical ailments. When hospitalized at the Miami Heart Institute George Sax conducted business on the telephone and received materials from the bank. His doctor at the Institute described himself as being annoyed that George Sax would spend so much time on the telephone.

Further evidence in the record reveals George Sax’ activities on behalf of the bank during the last years of his life. George Sax was involved primarily in the bank’s policy-making functions rather than the day-to-day management and administration of the banking business. When he was out of town, George Sax received briefings on bank activities during daily telephone calls. He also received daily mailings which included data on the bank’s deposits, new business and special problems.

Examples of George Sax’ contributions to the bank during this time included the plan to form a bank holding company which would allow the bank to obtain certain funds free from Federal regulations on interest rates. Meetings of the board of directors relating to this plan took place both at the bank and at George Sax’ apartment in Florida. He also participated in the planning of foreign branch banks in the Bahamas and Israel in order to increase the scope of the bank’s international business. George Sax personally attended and presided over the opening ceremonies of the branch in Israel. He further worked on plans for the creation of other foreign representative offices in Frankfurt and Mexico City.

A stipulation at trial showed George Sax was paid a total salary of $643,072.50 from 1969 to April 1974 and that he also received director’s fees totaling $19,000 during the same period. As to the latter sum we are mindful of the fact that George Sax did not attend 67 of 73 directors meetings during this period. Plaintiffs appear to assume this absence established a liability on their claim. As discussed above, it is obvious that George Sax continued to play a vital role in bank policy-making decisions during the last five years of his life. The trial court’s findings are supported by the record in this respect.

Plaintiffs accurately state that a director has a duty to attend and participate in the regular meetings of the board of directors. (See Bowerman v. Hamner (1919), 250 U.S. 504, 63 L. Ed. 1113, 39 S. Ct. 549.) It has also been said that “[i]nvalids are permitted to indulge in the hope of recovery, and are not called upon by reason of illness to retire at once from the affairs of this world and confine themselves to preparation for their passage into another.” (Briggs v. Spaulding (1891), 141 U.S. 132, 155, 35 L. Ed. 662, 671, 11 S. Ct. 924, 932.) Although we have concluded that George Sax far from withdrew from the business affairs of the bank, it is equally evident that his periodic illnesses and trips to Florida inhibited his attendance at the board meetings. The payment of compensation to ill employees is a matter of business practice and judgment of the board of directors. (Bermann v. Meth (1969), 436 Pa. 88, 93, 258 A.2d 521, 523, citing Solimine v. Hollander (1940), 128 N.J. Eq. 228, 16 A.2d 203; see Annot., 53 A.L.R.3d 358 (1973).) The minutes of the annual directors meetings reveal that George Sax was not singled out for preferential treatment in this respect. The board’s resolution called for payment of director’s fees whether a director “does or does not attend the meeting.” It is apparent the board of directors, in its considered judgment, believed this compensation to be fair. The trial court determined the overall compensation paid to George Sax was justified. This finding, and the judgment against plaintiffs on this issue, is supported by the record.

Plaintiffs’ next argument focuses on a series of loan transactions nebulously termed the Kitzer transactions. From 1961 to 1965, several bank officers engaged in certain loan transactions with Philip Kitzer and Philip Kitzer, Jr. As a result of these transactions the Kitzers were able to gain false certification that their newly formed insurance company had adequate reserve deposits. Further transactions arranged loans and transferred collateral between accounts, giving the appearance of financial integrity. Consequently, the bank became involved in two lawsuits with the receivers for the Kitzer companies. Plaintiffs called as a witness, Selwyn Zun, the bank’s attorney of record in this case and the attorney who conducted the Kitzer litigation. During that time he investigated the loan transactions. He found the documentation of the transactions to be proper in the absence of knowledge of the fraudulent conduct.

The. bank settled the two lawsuits against it; one, with the approval of the bank’s bonding carriers. In that case, the bank recovered 75% of its liability; in the other, approximately 66% of its liability. The bank did not attempt to recover from the bank officers involved in the loan transactions because, as Zun testified, the insurers were subrogated to the bank’s rights, the officers were apparently judgment-proof and the bank desired to limit further publicity on the matter.

Plaintiffs contend the defendants should have discovered the loan transaction scheme. It is also contended that the bank wrongfully settled the lawsuits against it. There is no evidence in the record to support these contentions. There is nothing to suggest defendants actually took part in the transactions. Nor is there evidence to suggest defendants, as directors, should have detected these transactions. The acts complained of were engaged in by, at the time, trusted officers of the bank. One of these men, the original plaintiff in this case (see Sax v. Sax), was an executive vice-president, a member of the officers’ loan committee and a director of the bank.

The loans involved in these transactions were disbursed by the lending officers. Several of these loans were repaid within a short period of time. All loans were reviewed by the officers’ and directors’ loan committees pursuant to the bank bylaws. Bank directors are not insurers of the fidelity of the corporate agents and cannot be held responsible for losses resulting from the wrongful acts of other directors or agents unless they neglect to properly supervise the business. (Briggs v. Spaulding (1891), 141 U.S. 132, 147, 35 L. Ed. 662, 668-69, 11 S. Ct. 924, 929; Becker v. Billings (1922), 304 Ill. 190, 136 N.E. 581.) Plaintiffs’ evidence has failed to connect any negligent acts of defendants to the Kitzer transactions.

In 1964, George Liederman borrowed money from the bank to finance the renovation of an apartment building. This loan was extended at various times from 1965 to 1970. A memorandum of the bank’s credit department contained in the record indicates the original extension was based on Liederman’s net worth of $3.5 million and his annual income of $250,000. Liederman’s wife had also guaranteed the note. Liederman died in 1971, leaving an unpaid balance of $673,268.28 of which $596,000 was principal. A claim in the probate proceedings was filed when the estate was opened. In 1975, after a complaint was filed in circuit court, Liederman’s wife paid $199,934. The balance due from the estate was settled for all but $94,720.28. Thus, the bank recovered 86% of the amount due at Liederman’s death.

Again, plaintiffs’ evidence does not reveal any negligence or wrongdoing on the part of defendants in respect to the Liederman loan. The cases cited by plaintiffs are inapplicable to the facts of this case. (E.g., Atherton v. Anderson (6th Cir. 1938), 99 F.2d 883 (self-dealing by president of bank); Ringeon v. Albinson (D. Minn. 1929), 35 F.2d 753 (bank officers looted the bank through self-interested transactions).) The evidence does not indicate that the loan to Lieder-man was excessive in light of his net worth. First National Bank v. Keller (N.D. Ill. 1970), 318 F. Supp. 339, 348.

Absent evidence of bad faith, fraud, illegality, or gross overreaching, courts are not at liberty to interfere with the exercise of business judgment by corporate directors. (Panter v. Marshall Field & Co. (7th Cir. 1981), 646 F.2d 271; Lower v. Lanark Mutual Fire Insurance Co. (1983), 114 Ill. App. 3d 462, 448 N.E.2d 940.) There is nothing in the record in this case to suggest anything other than the proper exercise of business judgment by the bank directors. The findings of the trial court are supported by the record.

Accordingly, the judgment of the circuit court of Cook County granting judgment to defendants and dismissing plaintiffs’ complaint is affirmed.

Affirmed.

ROMITI and JOHNSON, JJ., concur.