text:
    LIFE SAVINGS AND LOAN ASSOCIATION OF AMERICA, Plaintiff-Appellee, v. ADAM BRYANT et al., Defendants-Appellants.
    First District (4th Division)
    No. 83—1145
    Opinion filed May 17, 1984.
    Rehearing denied July 12, 1984.

      Sidney Margolis and Steven J. Goldberg, both of Winston & Strawn, of Chicago, for appellants.
    William R. Yowell, of Chicago, for appellee.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Defendants, Adam and Ruth Bryant, entered into a contract with Katrina, Inc., for the purchase of property in Cook County, Illinois. Defendants paid an earnest money deposit and began making payments to Katrina, which did not hold legal title at the time the contract was entered into. Katrina subsequently executed a mortgage on the property in favor of plaintiff, Life Savings and Loan Association of America, and obtained legal title from the trustee.

Katrina was dissolved, and defendants continued to make mortgage payments to be credited against the balance of their contract price. Upon paying off the contract, defendants ceased making mortgage payments, and plaintiff brought foreclosure proceedings. Defendants counterclaimed to quiet title, asserting priority over the mortgage.

The trial court dismissed the counterclaim, finding that the mortgage was superior. Defendants now appeal.

We reverse the decision of the trial court.

Facts

On or about December 20, 1965, Adam and Ruth Bryant (Bry-ants or Vendees) entered into a real estate sale contract with Katrina, Inc. (Katrina or Vendor), to purchase property in Cook County, Illinois. The contract called for a $1,000 earnest money deposit on a total purchase price of $15,500 but contained no payment schedule for the balance owing. The contract did, however, contain the following provisions:

“This contract is subject to Katrina Inc. [sie] ability to purchase the above above mention [sic] property and also obtain a mortgage in the amount of $13,500.00 *** in the event said mortgage cannot be obtain [sic] with in [sic] 45 days from date of contract then this contract becomes null and void and earnest money returned to purchaser.
* * *
In case of default of Martgage [sic] payment by Katrina, Inc. to mortgage Co. purchaser may make said mortgage payment out of contract payment and recieve [sic] credit for same on contract payment.”

Katrina did not hold legal title at the time the contract was entered into and obtained neither title nor a mortgage within the 45-day period. With knowledge of these facts, the Bryants began making payments under the contract and entered into possession of the property on January 29, 1966. The Bryants continued in open and notorious possession of the property up to and through January 30, 1967, at which time Katrina executed a mortgage with Life Savings and Loan Association of America (Life or Mortgagee) in the amount of $12,000 and, with the proceeds thereof, obtained legal title by deed from Oak Park Savings Bank, as trustee. The Bryants never expressly assumed the mortgage, nor did they join in its making. Life had notice of the Bryants’ interest in and possession of the subject property at the time it obtained the mortgage from Katrina.

On December 11, 1968, Katrina was dissolved. The Bryants, who had been making mortgage payments on Katrina’s behalf prior to the date of dissolution, continued to make payments through October 22, 1982, whereupon, alleging to have paid all amounts due under the purchase contract, the Bryants ceased making mortgage payments, leaving an outstanding balance on the mortgage of $1,254.68. Finding Katrina in default, Life elected to accelerate all sums due under the mortgage and instituted a foreclosure action, naming, among others, the Bryants as defendants.

The Bryants filed an answer with affirmative defenses and a counterclaim to quiet title. In response, Life filed a motion to dismiss, which the trial court granted. In its order of March 9, 1983, the lower court found that the purchase contract contemplated obtaining the mortgage and that the Bryants had therefore subordinated their interest in the subject property to the mortgage. The court ordered that the counterclaim, to the extent that it asserted priority over the mortgage, be dismissed along with the affirmative defenses. That part of the counterclaim seeking to quiet title was let stand. The Bryants filed a motion to vacate the March 9, 1983, order and in denying that motion, the trial court found that there was no just reason for delaying enforcement or appeal thereof. This appeal followed.

Opinion

The single issue before this reviewing court is whether the trial court’s finding that the Bryants’ interest is subordinate to the mortgage was correct. Two questions are involved in making this determination, namely, (1) what is the nature of the Bryants’ interest in the subject property, and (2) does that interest take priority over the mortgage subsequently executed in favor of Life. The answer to these questions lies within the doctrine of equitable conversion and the applicable recording law in Illinois.

We must first determine the relative legal status of the Vendees and the Mortgagee in relation to the subject property. The Bryants claim that under the doctrine of equitable conversion, they became the equitable owners of the property upon execution of the purchase contract with Katrina on December 20, 1965. Life, Mortgagee, refutes this claim on the ground that Katrina did not have title at the time the contract was executed and that obtaining title was one of the conditions precedent to the Bryants’ becoming equitable owners. This specific issue was addressed and resolved by our supreme court over two decades ago in the case Shay v. Penrose (1962), 25 Ill. 2d 447, 185 N.E.2d 218. In Shay, the court defined the doctrine of equitable conversion as follows:

“Equitable conversion is the treating of land as personalty and personalty as land under certain circumstances. Hence, as between the parties and those claiming through them, when the owner of land enters into a valid and enforceable contract for its sale he continues to hold the legal title, but in trust for the buyer; and the buyer becomes the equitable owner and holds the purchase money in trust for the seller. The conversion takes place at the time of entering into the contract. It stems from the basic equitable principle that equity regards as done that which ought to be done. The doctrine of equitable conversion has been recognized in Illinois, as it has in practically every other jurisdiction, since earliest times. [Citations.]” 25 Ill. 2d 447, 449, 185 N.E.2d 218.

In Shay, as here, one party contended that equitable conversion did not apply to a long-term contract for the sale of real estate prior to the time both parties fulfilled any conditions precedent to the contract. The court dismissed this contention, holding that the correct view is that equitable conversion takes place at the instant a valid and enforceable contract is entered into and that the buyer at the time acquires an equitable title. (Shay v. Penrose (1962), 25 Ill. 2d 447, 185 N.E.2d 218.) Between vendor and vendee, equity regards the vendee as the owner of the land upon execution of the purchase contract. Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, 263 N.E.2d 833.

Applying the doctrine of equitable conversion to the facts of the instant case, we note that the Bryants, as Vendees, became the equitable owners of the property on December 20, 1965, the date on which they executed the purchase contract with Katrina.

Life next asserts that Katrina’s ability to obtain both legal title and a mortgage were conditions precedent to the contract. Life stresses that Katrina did not have legal title at the time it entered into the sale contract with the Bryants and that, because title was obtained only after Katrina executed a mortgage in favor of Life, this first condition precedent was not satisfied. The doctrine of after-acquired title, codified as section 7 of “An Act concerning conveyances” (Ill. Rev. Stat. 1983, ch. 30, par. 6), does not support Life’s view. Section 7 reads as follows,

“If any person shall sell and convey to another, by deed or conveyance, purporting to convey an estate in fee simple absolute, in any tract of land or real estate, lying and being in this state, not then being possessed of the legal estate of interest therein at the time of the sale and conveyance, but after such sale and conveyance the vendor shall become possessed of and confirmed in the legal estate to the land or real estate so sold and conveyed, it shall be taken and held to be in trust and for the use of the grantee or vendee; and the conveyance aforesaid shall be held and taken, and shall be as valid as if the grantor or vendor had the legal estate or interest, at the time of said sale or conveyance.”

Under this doctrine, the prior conveyance results in the acquisition of equitable title by the vendee such that after-acquired title does not inure to the benefit of a subsequent mortgagee who cannot, by the taking of a mortgage, enlarge the bare legal interest given to him by the mortgagor. Cooper v. Robinson (1922), 302 Ill. 181, 134 N.E. 119.

In the present case, Katrina acquired title subsequent to the conveyance to the Vendees. The validity of the sales contract was not impaired by Katrina’s not having title at the time the contract was executed. (Madison v. Buehr (1970), 125 Ill. App. 2d 8, 260 N.E.2d 431.) Under the doctrine of after-acquired title, the condition precedent, that of Katrina acquiring title, was satisfied upon the vendor becoming possessed of the legal estate. When Katrina acquired title, the Bryants’ equitable interest thereto attached.

Life asserts further that a second condition precedent, that of obtaining a mortgage within 45 days, was also unfulfilled, thereby preventing the contract from taking effect. While it is undisputed that Katrina did not obtain a mortgage within 45 days, its failure to satisfy this condition, rather than rendering the entire contract unenforceable, served to restore the contract and the mortgage to their original priorities by operating as a waiver or negation of the subordination agreement.

It is well settled that parties to a contract may waive any provisions in the contract and that such waiver can be demonstrated by conduct indicating that strict compliance with the provision will not be required. (Botti v. Avenue Bank & Trust Co. (1982), 103 Ill. App. 3d 1052, 432 N.E.2d 295.) A party by his conduct may waive his right to enforce a contract provision where time as of the essence was originally intended. (Will v. Will Products, Inc. (1982), 109 Ill. App. 3d 778, 441 N.E.2d 343.) While nonaction by both parties constitutes a waiver and mutual negation of that particular provision, the rest of the contract remains in force where the parties, by their acts and statements, show that they consider the agreement to otherwise retain its vitality. Christopher v. West (1951), 409 Ill. 131, 98 N.E.2d 722.

In the instant case, the provision at issue is that which Life claims is a subordination agreement. The terms in the provision state that the contract was “subject to” Katrina’s ability to obtain a mortgage in the amount of $13,500, with interest not to exceed 6V2%; and that in the event said mortgage could not be obtained “within 45 days” the contract was to become null and void. It is undisputed that (1) Katrina did not obtain a mortgage within 45 days, (2) the Bryants started making payments and Katrina accepted payments after the 45-day period, (3) Katrina did obtain a mortgage on January 30, 1967, over two years from the date of the contract, and (4) the mortgage obtained was in the amount of $12,000, with interest at a rate of 7% per annum. It is clear from these facts that none of the conditions in the subordination agreement were fulfilled. Moreover, the parties, by their conduct, effectively waived whatever subordination agreement may have existed:

“An agreement to postpone or subordinate a mortgage may be made subject to particular terms or limitations, or it may constitute a contract to subordinate in the future if certain conditions then obtain *** and, if the agreement to postpone a mortgage is made on certain conditions which are not fulfilled, it is ipso facto restored to its priority.” 59 C.J.S. Mortgages sec. 218 (1949).

Here, the provision at issue constitutes a contract to subordinate in the future if certain conditions then obtained. The conditions, both as to time and as to the specifics of financing, did not obtain. The effect of Katrina’s failure to satisfy these conditions was to restore the Bryants’ contract to its priority by the mutual negation or waiver of the subordination provision.

The final question to be answered then is, exactly to what priority was the Bryants’ interest restored upon negation of the subordination agreement in relation to the subsequently executed mortgage. The answer turns on whether Life, as Mortgagee, was a bona fide purchaser such that its interest was protected by the recording act. Metcalf v. Altenritter (1977), 53 Ill. App. 3d 904, 369 N.E.2d 498.

A bona fide purchaser is one who takes without notice of a prior claim or encumbrance. (Guard ex dem. Robinson v. Rowan (1840), 3 Ill. (2 Scam.) 499.) A mortgagee of realty is regarded as a purchaser, and, if the mortgage is supported by consideration and is taken in good faith, the mortgagee will be protected against adverse claims of which it has no notice. (59 C.J.S. Mortgages sec. 232 (1949).) Where, however, the mortgagee, at the time of taking the mortgage, has knowledge or legal notice of a prior conveyance, it is not entitled to the protection of a bona fide purchaser. (Fidelity Trust & Savings Bank v. Williams (1936), 285 Ill. App. 131, 1 N.E.2d 739.) One who takes a mortgage upon property with knowledge, either actual or constructive, of an earlier although unrecorded conveyance of it, takes it subject thereto and will not be permitted by placing his mortgage first on the record to gain priority over the earlier lien. St. Boniface Building & Loan Association v. Demopoulos (1939), 302 Ill. App. 614, 24 N.E.2d 171.

In the present case, Life does not dispute that it had knowledge of the Bryants’ claim at the time Katrina executed a mortgage in its favor. Nor is it disputed that the Bryants were in possession prior to and at the time the mortgage was taken. Illinois courts have uniformly held that the actual occupation of land is equivalent to the recording of the instrument under which the occupant claims interest in the property. (Bullard v. Turner (1934), 357 Ill. 279, 192 N.E. 223; Beals v. Cryer (1981), 99 Ill. App. 3d 842, 426 N.E.2d 253.) The open and visible possession of land by the equitable owner is sufficient to charge a mortgagee with notice of the rights of such owner, and the mortgagee will take subject to the rights of the person in possession. Williams v. Spitzer (1903), 203 Ill. 505, 68 N.E. 49.

“Possession by a vendee under a contract of purchase, whether it be personal or by a tenant, is constructive notice of his equitable rights as purchaser, and any one taking a mortgage under such circumstances from his vendor takes subject to his rights. The mortgage lien in such case covers the property only to the extent of the unpaid purchase-money.” 1 L. Jones, Mortgages sec. 718, at 1059-60 (8th ed. 1928).

Here, the Bryants were vendees in possession under a contract of purchase at the time Life obtained the mortgage. Life had both actual and constructive notice of the Bryants’ interest. Consequently, the subsequently executed mortgage was a lien on the property only to the extent of the unpaid purchase price. The words “subject to” in the purchase contract do not indicate an understanding that the mortgage was to be assumed. (Pearce v. Desper (1957), 11 Ill. 2d 569, 144 N.E.2d 617.) The mere acceptance of a conveyance subject to a mortgage specified therein creates no personal liability on the vendee to pay off the mortgage, unless he has by contract, expressed or clearly implied, specially agreed to do so. Lane v. Davis (1910), 158 Ill. App. 653.

In the instant case, the purchase contract between Katrina and the Bryants provided that the Bryants “may make mortgage payment out of contract payment and receive [sic] credit for same on contract payment.” The Bryants did make mortgage payments on behalf of Katrina prior to and through the time Katrina was dissolved in December of 1968. However, neither this contract provision nor the making of payments constitutes, without more, an assumption of the mortgage. The permissive rather than compulsory word “may” in the contract provision presented the Vendees with a choice as to whether they would make remaining mortgage payments. Moreover, the plain meaning of the provision is that whatever payments the Bryants chose to make were made on behalf of Katrina, the mortgagor, to be credited against the contract purchase price.

Under the applicable law, the mortgage lien on the subject property was only to the extent of the unpaid purchase price. Thus, in the absence of an assumption of the mortgage debt, when the Bry-ants paid off the contract price the mortgage lien was extinguished, and superior title vested in the Bryants. 91 C.J.S. Vendor & Purchaser sec. 106 (1955).

For all the foregoing reasons, we find that the trial court’s decision, set forth in its order of March 9, 1983, finding that the Bry-ants subordinated their interest to the mortgage and dismissing their counterclaim and affirmative defenses, was manifestly erroneous.

We therefore reverse the decision of the circuit court.

Reversed.

JIGANTI and ROMITI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McGLOON

license: Public Domain

text:
    BRENDA FLEX, Plaintiff-Appellee, v. THE DEPARTMENT OF LABOR, BOARD OF REVIEW, et al., Defendants-Appellants.
    First District (1st Division)
    No. 83—1391
    Opinion filed June 25, 1984.
    Neil F. Hartigan, Attorney General, of Springfield (Georgene M. Wilson, , Assistant Attorney General, of counsel), for appellants. '
    Patricia L. Winfrey and Jeffrey B. Gilbert, both of Legal Assistance Foundation, of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff, Brenda Flex, brought an action in the circuit court of Cook County under the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.), seeking review of a decision of the Illinois Department of Labor, Board of Review (Board). The Board had found, pursuant to section 601(A) of the Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1983, ch. 48, par. 431(A)), that plaintiff was ineligible for unemployment insurance benefits because she voluntarily left her job without good cause attributable to the employer. The circuit court reversed the decision of the Board, and the Board has appealed, contending that its decision was supported by the manifest weight of the evidence.

Plaintiff was employed as a stenographer by Metropolitan Life Insurance Company (employer) from July 10, 1978, until July 20, 1981, when she was placed on a maternity leave of absence which was to extend through September of 1981. During that time she gave birth to a son whose spinal cord was damaged, and she was granted an extended leave until January 15, 1982, because of the child’s condition.

On January 15, 1982, plaintiff had a telephone conversation with her supervisor, Kenneth Mahler, who informed her that if she did not return to work on the following Monday, he would have to hire someone else. Plaintiff’s response to Mahler is one of the major points of dispute between the parties. She claimed that she told him she intended to return to work but needed a little more time off because the caretaker for her injured child was out of town and she was unable to secure a substitute. The employer, on the other hand, maintained that plaintiff informed Mahler that she did not intend to return to work. The employer opposed her claim for unemployment insurance benefits, and plaintiff submitted a claimant-information sheet stating that she could not return to work on the appointed date because her baby was ill. The claims adjudicator made a factual finding that plaintiff could not return to work due to the illness of her baby, but determined that she was ineligible for benefits pursuant to section 601(A) of the Act because she had “left work voluntarily without good cause attributable to the employing unit ***.” (Ill. Rev. Stat. 1983, ch. 48, par. 431(A).) Plaintiff filed an application for reconsideration of the claims adjudicator’s determination in which she stated that she had requested an extension of her maternity leave until she could find someone who was competent to care for her injured child. The application was unsuccessful and plaintiff appealed.

An administrative hearing was conducted at which plaintiff appeared pro se. The employer was represented by hearing representative Christine Gilden and office supervisor Robert Main. Plaintiff testified that in her conversation with Kenneth Mahler, she requested an extension of her leave to enable her to find someone to care for her injured child, because her regular baby sitter was out of town. Although Mahler was not present at the hearing, Robert Main testified that Mahler told him that plaintiff said she did not intend to return to work. Th'e hearing examiner affirmed the denial of benefits.

Still proceeding pro se, plaintiff appealed to the Board. She presented the Board with a letter from her son’s pediatrician, Dr. Paula K. Jaudes, which stated that the child suffered a spinal cord injury at birth, that he suffers from a right Erb’s palsy, spinal cord lesion and hypospadias and that he needs physical therapy and infant stimulation. In addition, Dr. Jaudes advised that: “[I]t is important that his mother spend as much time with [the child] as possible. She is a very good mother and [the child] shows the results of her time.” The Board subsequently affirmed the denial of benefits pursuant to section 601(A) of the Act. It also made an additional finding of fact that “the claimant did not contact the employer to request a further extension of her maternity leave, nor to inform the employer that she was not able to return to work upon expiration of her leave.”

Plaintiff thereafter retained counsel and filed a complaint in the circuit court for administrative review of the Board’s determination. The circuit court reversed the determination based in part on its finding that the Board erroneously failed to apply an exception contained in section 601(B)(1) of the Act. Although section 601(A) provides that a person is ineligible for benefits if he voluntarily leaves his job without good cause attributable to the employer, section 601(B)(1) provides that:

“The provisions of this Section shall not apply to an individual who has left work voluntarily:
1. *** [U]pon the advice of a licensed and practicing physician that assistance is necessary for the purpose of caring for his *** child *** who is in poor physical health and such assistance will not allow him to perform the usual and customary duties of his employment, and he has notified the employing unit of the reasons for his absence.” (Ill. Rev. Stat. 1983, ch. 48, par. 431 (B)(1).)

The court further held that the Board’s finding that plaintiff failed to request an extension of her maternity leave was based solely upon hearsay evidence and therefore against the manifest Weight of the evidence.

On appeal, the Board contends that the circuit court erred in two respects; first in construing section 601(B)(1) of the Act in such manner as to render it applicable to the instant cause, and second, in holding that its factual finding concerning plaintiff’s request for an extended leave was against the manifest weight of the evidence.

The findings and conclusions of an administrative agency on questions of fact are considered to be prima facie true and correct. (Dunaway v. Department of Labor (1982), 109 Ill. App. 3d 63, 440 N.E.2d 231.) However, a reviewing court is not bound to give the same deference to an agency’s conclusions of law, such as its construction of a statute, as it gives to its finding of facts. “While we might affirm a factual conclusion as not against the manifest weight of the evidence although we would have reached the opposite conclusion, we cannot let stand a decision based upon an erroneous construction of a statute.” Dunaway v. Department of Labor, 109 Ill. App. 3d 63, 68, 440 N.E.2d 231.

The first argument advanced by the Board is that plaintiff failed to qualify for the section 601(B)(1) exception because the letter from Dr. Jaudes did not specifically state that caring for her disabled child made it impossible for her to continue her employment. As noted above, the statute provides that to qualify for the exception a claimant must show that he left work “upon the advice of a licensed and practicing physician that assistance is necessary for the purpose of caring for his *** child *** who is in poor physical health and such assistance will not allow him to perform the usual and customary duties of his employment, and he has notified the employing unit of the reasons for his absence.” (Ill. Rev. Stat. 1983, ch. 48, par. 431(B)(1).) The Board construes this provision to require the physician to state not only that the ill child needs his parent’s assistance, but also that such assistance will prevent the parent from performing the customary duties of his job. It argues that although Dr. Jaudes’ letter meets the first requirement, her statement that “it is important that his mother spend as much time *** as possible” with the child is insufficient to show that she cannot continue working.

Plaintiff, on the other hand, urges a different construction of the statute. She maintains that the proper reading of section 601(B)(1) is that the physician must state only that assistance is necessary to care for the ill child and that, independent of the physician’s statement, the assistance must be such as to preclude the claimant from performing the duties of his job. We agree with plaintiff’s interpretation. It is well established that Illinois courts have required that the Act be liberally interpreted to favor the awarding of benefits. (Griffitts Construction Co. v. Department of Labor (1979), 76 Ill. 2d 99, 390 N.E.2d 333.) Although a physician is an expert on the type of assistance necessary to care for an ill child, his opinion on how such assistance will affect the parent’s job duties is wholly outside his area of expertise and should not be required as a predicate for the award of benefits.

Moreover, even were we to accept the Board’s interpretation we believe that Dr. Jaudes’ letter is sufficient to meet that interpretation. Since a physician cannot be expected to know the implications of his advice for the receipt of unemployment insurance, it is unreasonable to require that he employ the exact wording of the statute. Dr. Jaudes’ letter clearly indicates that plaintiff’s child suffered severe and disabling injuries at birth. We believe that the circuit court could properly interpret her advice that plaintiff spend as much time as possible with him as precluding the continuation of full-time employment.

The second argument raised by the Board is that the court erred in holding that its finding that plaintiff failed to request an extension of maternity leave was against the manifest weight of the evidence. As previously noted, section 601(B)(1) requires that the claimant notify the employer of the reason for his absence. The court concluded that the finding was based entirely on hearsay evidence which was insufficient to controvert plaintiff’s sworn testimony.

Hearsay which is not admissible in a jury trial may be sufficient to support the finding of an administrative agency if more reliable evidence is not available, “and if in the end the finding is supported by the kind of evidence on which responsible persons are accustomed to rely in serious affairs.” (Starkey v. Illinois Civil Service Com. (1982), 105 Ill. App. 3d 904, 910, 435 N.E.2d 176, rev’d on other grounds (1983), 97 Ill. 2d 91, 454 N.E.2d 265.) In examining the record, a reviewing court will look at all of the evidence in opposition to the challenged finding as well as the evidence which tends to support it. Starkey v. Illinois Civil Service Com. (1982), 105 Ill. App. 3d 904, 910, 435 N.E.2d 176, rev’d on other grounds (1983), 97 Ill. 2d 91, 454 N.E.2d 265.

In the case at bar, plaintiff testified under oath that she informed Kenneth Mahler by telephone on January 15, 1982, that she needed additional time off to arrange for child care. Mahler was not present at the proceeding, and the only evidence introduced by the employer was the testimony of Robert Main that Mahler told him that plaintiff said she did not intend to return to work. We believe that the circuit court correctly ruled that the agency could not credit Main’s hearsay testimony concerning a conversation to which he was not a party over plaintiff’s contrary competent testimony.

Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.

GOLDBERG and CAMPBELL, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    ANDREW ELIA, Plaintiff-Appellant, v. INDUSTRIAL PERSONNEL CORPORATION, Defendant-Appellee.
    First District (1st Division)
    No. 83—2162
    Opinion filed June 25, 1984.
    Bruce M. Bozich, of Edward R. Vrdolyak, Ltd., of Chicago, for appellant.
    William T. McGrath and Margaret F. Woulfe, both of Chadwell & Kayser, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises out of an action brought by plaintiff, Andrew Elia, against his former employer, Industrial Personnel Corporation (Industrial), wherein plaintiff alleged that he was discharged in retaliation for having filed a workers’ compensation claim. Defendant Industrial moved for summary judgment, arguing that pursuant to the terms of a collective bargaining agreement plaintiff had filed a grievance protesting his discharge which was ultimately denied by a grievance panel. Industrial contended that Elia’s action in availing himself of the grievance procedure provided in the collective bargaining agreement precluded him from bringing suit for retaliatory discharge in circuit court. After oral argument, the trial court- granted defendant’s motion for summary judgment, which resulted in the present appeal. The only issue raised by the parties on appeal is whether or not plaintiff’s action in pursuing his contractual remedy under the terms of the collective bargaining agreement precluded him from subsequently filing a tort action for retaliatory discharge in circuit court.

The record reveals as follows. Industrial is engaged in the personnel leasing business, leasing truck drivers, warehousemen, and mechanics to companies that have a need for such personnel. During all relevant times, Industrial and the International Brotherhood of Teamsters, Local 301, were parties to a collective bargaining agreement. Plaintiff Elia was a member of the Teamsters Union and was covered under the terms of the contract.

On October 22, 1980, plaintiff was hired as a truck driver by the defendant corporation and was subsequently assigned by Industrial to work for Abbott Laboratories. On April 7, 1981, while driving an Abbott truck, Elia was involved in a serious accident and sustained injuries for which he received workers’ compensation benefits. On September 14, 1981, plaintiff sought to return to work at Industrial but was informed that there was no available employment.

Shortly thereafter, plaintiff exercised his rights under the collective bargaining agreement and brought a grievance against Industrial, claiming that he had obtained seniority rights and that these rights had been violated because his former position had been filled by a man hired after him. The fact that plaintiff’s grievance never raised his claim of retaliatory discharge for making a workers’ compensation claim is not disputed by the parties.

Elia’s grievance was processed through each stage of the grievance procedure and was finally heard by an eight-person grievance committee comprised of four union representatives and four management representatives. Plaintiff claims that at the hearing defendant’s agent, Michael Angel, told union representatives that one reason plaintiff would not be reinstated was because he cost Abbott a great deal of money by reason of plaintiff’s workers’ compensation claim. The chairman of the grievance committee noted that Elia’s claimed seniority was the only issue raised by the grievance and the only question under consideration. After hearing the facts presented, a majority of the committee voted to deny Elia’s grievance.

Following the grievance denial, plaintiff obtained legal counsel and the instant complaint alleging retaliatory discharge was filed on June 22, 1982. Plaintiff, in appealing from the order of the trial court granting defendant’s motion for summary judgment, contends that the existence of a contractual remedy based on a collective bargaining agreement did not preclude a suit for retaliatory discharge where the retaliatory discharge issue was neither raised nor litigated under the grievance procedure provided in the collective bargaining agreement. We agree.

In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, our supreme court provided a separate tort remedy to employees that had been discharged for filing claims under the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.). In so doing, the court noted that such a remedy was necessary in order to uphold and implement the strong public policy inherent in the act of promptly and equitably compensating employees for injuries received during the course of their employment. The court further noted that permitting the wronged employee to recover only compensatory damages would do little to dissuade an employer from engaging in the practice of discharging employees in retaliation for filing workers’ compensation claims. In order to provide an effective deterrent, the court went on to hold that punitive damages were awardable against an employer who “mocks the public policy of this State” by engaging in such abusive practices. Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 187.

Noting that the employee in Kelsay was an at-will employee, subsequent appellate opinions have differed in their interpretation of Kel-say as it applies to employees covered under a collective bargaining agreement. In Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 407 N.E.2d 95, the appellate court distinguished Kelsay, holding that the tort remedy for retaliatory discharge did not apply to employees covered under a collective bargaining agreement where the agreement provided that employees could be discharged only for just cause and further provided a grievance procedure for resolving disputes. The court reasoned that such an employee was limited to the remedies provided under the contract, which must be exhausted, and that such an agreement precluded a separate recovery sounding in tort. Accord, Ward v. Howard P. Foley Co. (1983), 119 Ill. App. 3d 894, 457 N.E.2d 155; Suddreth v. Caterpillar Tractor Co. (1983), 114 Ill. App. 3d 396, 449 N.E.2d 203; Deatrick v. Funk Seeds International (1982), 109 Ill. App. 3d 998, 441 N.E.2d 669.

In Wyatt v. Jewel Cos. (1982), 108 Ill. App. 3d 840, 439 N.E.2d 1053, the court explicitly rejected the rationale advanced in Cook, holding that employees covered under a collective bargaining agreement were not limited to a claim for breach of labor contract or to the remedies provided by the grievance procedures contained in the contract. The court reasoned that such a limitation would lead to absurd results since, under Kelsay, an at-will employee who suffers a retaliatory discharge could recover punitive damages. Yet, under Cook, a similarly treated employee protected under a collective bargaining agreement would be limited to contract damages only. See also Ward v. Howard P. Foley Co. (1983), 119 Ill. App. 3d 94, 95-98, 457 N.E.2d 155 (Barry, J., dissenting).

The holding in Wyatt was recently affirmed in Midgett v. SackettChicago, Inc. (1983), 118 Ill. App. 3d 7, 454 N.E.2d 1092. There the court held that the recognition of a cause of action in tort for retaliatory discharge allows an employee covered under the terms of a collective bargaining agreement an additional remedy in areas where strong public policy as opposed to private interests is involved.

A subsequent First District opinion placed limitations on the holding in Wyatt, where an employee covered under a collective bargaining agreement raises and litigates the retaliatory discharge issue under the grievance procedures provided in the agreement. In Bertling v. Roadway Express, Inc. (1984), 121 Ill. App. 3d 60, 64-65, 459 N.E.2d 265, the court held that such action barred a later suit in circuit court for retaliatory discharge where the employee’s “grievance alleged substantially the same accusations of unfair treatment which the complaint alleged.” In effect, the court in Bertling refused to permit an employee to relitigate issues in circuit court which had been specifically raised and decided in a prior arbitration proceeding.

After reviewing these competing interpretations of Kelsay as applied to workers covered under a collective bargaining agreement, we reaffirm our prior decisions in Wyatt and Midgett and find that the existence of a contractual remedy for wrongful discharge does not preclude an action in tort for retaliatory discharge. We further find that under Bertling such an action will be barred only where the employee raises the retaliatory discharge issue in the grievance procedures provided by the collective bargaining agreement.

The opinions to the contrary cited from other appellate districts have uniformly failed to adequately address the punitive damage issue first raised in Wyatt. There is simply no logical reason to permit at-will employees to recover punitive damages in tort for retaliatory discharge and to limit similarly situated employees covered under a collective bargaining agreement to contract damages. This is especially true in light of our supreme court’s explicit holding on the necessity for punitive damages in order to effectively deter employer misconduct in this area. (See Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186-87, 384 N.E.2d 353.) By limiting a major portion of our work force only to contract damages under a collective bargaining agreement, we would be imposing a damage structure which our supreme court has already determined to be inadequate for protecting the strong public policy embodied in the Workers’ Compensation Act. Accordingly, we reject defendant’s invitation to overrule Wyatt.

In addition, we note that while arbitration panels may be superb vehicles for determining the private law of the shop place, they are, at best, poorly equipped to enforce the public policy of this State. Many arbitrators, though expert in the area of labor relations, are not lawyers and therefore may lack the expertise necessary to resolve complex legal questions. Similarly, the union’s case in labor arbitration is commonly prepared and presented by nonlawyers. Also, arbitral fact-finding is generally not equivalent to judicial fact-finding — the record of proceedings is not as complete, the usual rules of evidence do not apply, and rights common to civil trials, such as discovery, compulsory process, cross-examination and testimony under oath, are often severely limited or unavailable. See Alexander v. Gardner-Denver Co. (1974), 415 U.S. 36, 57-58, 39 L. Ed. 2d 147, 163, 94 S. Ct. 1011, 1024.

Noting these deficiencies in the labor arbitration process, the United States Supreme Court has consistently permitted employees covered under a collective bargaining agreement to litigate claims against their employer in Federal court when the claim is based on the public policy embodied in various Federal statutory rights. The court has taken this position even though the employee had a separate contractual remedy under the agreement and even though the employee raised and litigated the same issue in a prior arbitration proceeding. See McDonald v. City of West Branch (1984), 466 U.S. _, 80 L. Ed. 2d 302, 104 S. Ct. 1799; Barrentine v. Arkansas-Best Freight System, Inc. (1981), 450 U.S. 728, 67 L. Ed. 2d 641, 101 S. Ct. 1437; Alexander v. Gardner-Denver Co. (1974), 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011.

We see no reason why the rights secured workers by the public policy of this State should receive less vigorous enforcement. Nor do we believe that an employee’s resort to the grievance procedure provided in the collective bargaining agreement should preclude a tort action for retaliatory discharge when that issue has not been raised in a prior arbitration proceeding. A contrary holding could only be justified on grounds involving judicial economy, which we believe are outweighed by the strong public policy considerations espoused in Kelsay of protecting employees from retaliatory discharge.

Applying these holdings to the case at bar, we must reverse the order of the trial court granting defendant’s motion for summary judgment. The parties agree that plaintiff never raised the retaliatory discharge issue in the prior grievance proceedings. From the record, it would appear that plaintiff did not learn of the possible retaliatory nature of his discharge until it was revealed by testimony elicited from defendant’s witnesses at the hearing before the grievance committee. Accordingly, plaintiff is not barred from seeking a recovery in tort for retaliatory discharge.

In view of the foregoing, the judgment of the trial court is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

GOLDBERG and CAMPBELL, JJ., concur.


text:
    UPENDRA DESAI, Plaintiff-Appellant, v. THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—1085
    Opinion filed June 25, 1984.
    Rehearing denied August 6, 1984.
    Stephen G. Seliger and Richard F. McPartlin, both of Chicago, for appellant.
    Allen S. Lavin, of the Metropolitan Sanitary District, of Chicago (James B. Murray and Maureen K. Whelan, of counsel), for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff Upendra Desai filed an action under the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.) challenging his discharge as an employee of the Metropolitan Sanitary District of Greater Chicago. On appeal from an order affirming his discharge plaintiff contends (1) he was denied his right to a hearing on the discharge, and (2) the Civil Service Board lacked authority to entertain a motion for summary judgment.

We affirm.

Plaintiff had been a senior civil engineer in the classified service of the Metropolitan Sanitary District of Greater Chicago (the Sanitary District). On May 11, 1981, the Sanitary District filed charges with its Civil Service Board (the Board) seeking plaintiff’s discharge. In the charge which was the basis for plaintiff’s dismissal, the Sanitary District alleged that during three service rating periods, plaintiff received summary evaluations of “requires improvement.” It further alleged that discharge was permitted under 11.041, paragraph 2, of the Rules of the Director of Personnel of the Metropolitan Sanitary District, which provides that an employee may be discharged if he is found to have failed to maintain the minimum standard of performance as determined by a service rating. Appended to the petition for discharge were the three service ratings. The first rating of “requires improvement” was given for the period beginning June 1, 1978, and ending December 1, 1978. The second service rating was for the period December 1, 1978, to June 1, 1979, and the third rating was for June 1, 1980, to December 1, 1980.

On October 26, 1981, the Sanitary District filed a motion for summary judgment in which it asked the Board to discharge plaintiff for his failure to maintain a minimum standard of performance as evidenced by the service ratings. Plaintiff contested the motion on the ground that the first and second ratings were under review in the circuit court and the third rating was being challenged before the Board. He also stated he had received satisfactory ratings from June 1, 1979, to June 1, 1980, and such ratings were relevant to the charge for dismissal.

On December 2, 1981, a hearing on the charges for discharge commenced. Plaintiff and the Sanitary District each called one witness and the proceedings were continued. On December 11, 1981, the circuit court affirmed the first and second service ratings and found that they were supported by the manifest weight of the evidence. A final determination upholding the third unsatisfactory rating was rendered by the Board on January 12, 1982. Thereafter, the District filed an amended motion for summary judgment. A hearing thereon was held on January 27, 1982, and the Board rendered its decision to discharge plaintiff on February 19, 1982. Plaintiff filed an action for administrative review. After a hearing, the court found that the decision was not against the manifest weight of the evidence and affirmed the decision of the Board.

On appeal, plaintiff contends that a motion for summary judgment is improper in an administrative proceeding and that the Board lacked authority to entertain the motion. He further contends he was denied his right to a hearing on the charge for his dismissal where the Board granted the motion for summary judgment and refused to allow him to call additional witnesses.

Plaintiff’s contention that the motion for summary judgment was unauthorized is technically correct. As held by the court in Village of South Elgin v. Pollution Control Board (1978), 64 Ill. App. 3d 565, 381 N.E.2d 778, the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 1 — 101 et seq.) is inapplicable to administrative proceedings. However, the reason the Code of Civil Procedure is not applicable is that administrative procedure is simpler, less formal and less technical than judicial procedure. (Village of South Elgin v. Pollution Control Board (1978), 64 Ill. App. 3d 565, 381 N.E.2d 778.) Thus, the major issue is not whether the motion for summary judgment was improper, but whether the Board properly terminated the hearing when it did.

Unquestionably, plaintiff had a right to a hearing on the grounds for discharge under section 4.14 of “An Act to create sanitary districts ***” (Ill. Rev. Stat. 1983, ch. 42, par. 323.14). However, the same process which is due during a trial is not necessary at an administrative hearing. (Teleser v. Holzman (1964), 31 Ill. 2d 332, 201 N.E.2d 370; Fox River Valley District Council of Carpenters v. Board of Education (1978), 57 Ill. App. 3d 345, 373 N.E.2d 60.) In administrative matters, due process is satisfied by a procedure that is suitable for the nature of the determination to be made and conforms to the fundamental principles of justice. (Telcser v. Holzman (1964), 31 Ill. 2d 332, 201 N.E.2d 370.) An administrative body has broad discretion in conducting its hearings. Village of South Elgin v. Pollution Control Board (1978), 64 Ill. App. 3d 565, 381 N.E.2d 778.

Plaintiff’s discharge was based on the three prior service ratings where the overall evaluations were less than satisfactory. Explanatory remarks on the first rating indicated that plaintiff made commitments regarding permit issuances which he could not keep, that some jobs were unacceptably delayed and that he followed directions on work priorities only after several reminders. Explanations on the second rating showed that errors in his work resulted from a failure to analyze a project and follow accepted procedures, that his work volume and that of others was reduced because of the errors, and that he did not accept responsibility for delays in projects caused by his actions or inaction. The third rating’s comments indicate that plaintiff was frequently absent from his work station and that he required more supervision than should have been necessary for an employee in his position. Plaintiff requested and had a full hearing before the Civil Service Board on each rating, and the first and second ratings were also reviewed by the circuit court. The three ratings were wholly upheld. Additionally, plaintiff was able to call a witness during the hearing on the discharge. He was represented by counsel, and his attorney was able to advise the Board of prior satisfactory ratings. Contrary to plaintiff’s argument, this is not a case where he was deprived of his right to contest the bases for his discharge. From the reasons listed on the service ratings, it is also clear that the Board’s action was not arbitrary. Given all of the above factors, we cannot say that plaintiff was denied a right to a hearing to challenge the grounds for his discharge.

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

Judgment affirmed.

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


author: JUSTICE JIGANTI

text:
    MICHAEL HORTON, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
    First District (4th Division)
    No. 83—1231
    Opinion filed June 7, 1984.
    Rehearing denied July 25, 1984.

      Kenneth N. Flaxman, of Chicago, for appellant.
    Grotty and Hoyne, of Chicago, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Michael Horton, had a fire insurance policy on his home with the defendant, Allstate Insurance Company. The home was damaged by a fire which both parties agree may have stemmed from incendiary origins. Pursuant to the terms of the policy, Horton submitted “sworn statements of proof of loss” to Allstate. Allstate rejected those statements and requested more detailed statements, as well as additional documentation to which it contends it was entitled under the terms of the policy.

The plaintiff made no attempt to comply with Allstate’s request and took no action to either excuse or dispute his noncompliance. Rather, the plaintiff immediately commenced this action against Allstate seeking recovery in contract for the proceeds of the insurance policy in addition to punitive damages for Allstate’s alleged wrongful refusal to pay under the policy. The plaintiff has never argued that if Allstate prevails he should then be entitled to submit the additional proof of loss statements and documentation requested by Allstate. Following oral arguments by the parties, the trial court granted Allstate’s motion for summary judgment. This appeal followed.

The contract of insurance between the plaintiff and Allstate provides that following a loss, the insured must submit detailed proof of loss statements to the insurer. In addition to the proof of loss statements that must be filed by an insured, the policy also provides that the insurance company may request additional documentation of its insured’s loss. Specifically, the contract provides that “The insured *** as often as may be reasonably required, shall produce for examinations all books of account, bills, invoices and other vouchers, or certified copies thereof if originals be lost ***.” The conditions section of the contract states that after a loss, the insured must, among other things, submit “original bills, invoices, and other vouchers, or certified copies which we may reasonably request ***.” As a condition precedent for bringing suit against the insurer, the policy requires the insured to have first fully complied with all of the terms of the policy.

The plaintiff first argues that because he submitted proof of loss statements to Allstate, the issue of whether the statements were adequate or inadequate is a question of fact to be determined by a jury. Therefore, the plaintiff urges that summary judgment was improper in this case. While the propriety of the proof of loss statements, standing alone, may comprise a jury question, the plaintiff ignores the fact that the insurance policy permits Allstate to require additional documentation from its insured.

The Illinois Supreme Court has found that the production of an insured’s books and records, when requested, is a reasonable condition precedent to recovery. (Niagara Fire Insurance Co. v. Forehand (1897), 169 Ill. 626, 48 N.E. 830.) Consequently, the fact that the plaintiff may have filed proper proof of loss statements does not in itself entitle him to recovery. Thus, as a condition precedent to recovery, the plaintiff was obligated to provide the additional documentation if the request was made pursuant to the terms of the contract.

A second and related argument raised by the plaintiff is that the document request tendered by Allstate was not in accord with the terms of the policy and that therefore, the plaintiff was under no obligation to comply with the request. The plaintiff concedes that certain of the additional documents requested by Allstate were expressly contemplated by the policy, such as books of account, bills, invoices and other vouchers. He contends, however, that because other documents included in the request, such as tax returns, utility bills and pleadings pertaining to his bankruptcy petition, were not expressly specified in the policy, Allstate’s document request was unauthorized, and compliance with the request was therefore not a condition precedent to recovery.

Leaving aside for the moment those documents not specifically detailed in the policy, we find first that the plaintiff was under a contractual obligation to produce those documents expressly specified in the policy. The plaintiff agreed to produce books of account, bills, invoices and other vouchers, “or certified copies thereof if originals be lost,” upon Allstate’s reasonable request following a loss. The plaintiff made no attempt to comply with the request or excuse his noncompliance. The plaintiff further agreed in the policy that he would comply with the terms of the policy prior to bringing suit against Allstate. Because the plaintiff did not fulfill this condition precedent or attempt to excuse his noncompliance, we find that his suit against Allstate was barred under the policy for failure to comply with a condition precedent to which the parties had both agreed.

It becomes unnecessary, therefore, for this court to address the plaintiff’s arguments concerning Allstate’s request for documents not specifically set forth in the policy. Because the plaintiff failed to comply with the condition precedent discussed above, he forfeited his right under the policy to bring suit against Allstate. Thus, we need not address the propriety of Allstate’s request for such items as the plaintiff’s tax returns, utility bills and pleadings pertaining to his bankruptcy petition. In sum, there were sufficient undisputed facts for the trial court to conclude as a matter of law that the plaintiff forfeited his right to sue Allstate when he failed to comply with a condition precedent of the policy.

The plaintiff’s final argument on appeal is that summary judgment was improper in this case because a jury could have concluded that the plaintiff’s compliance with Allstate’s document request would have been a “futile act.” In effect, the plaintiff maintains that Allstate committed an anticipatory breach of contract and that a jury could have been justified in concluding that Allstate would not have paid the plaintiff, even if the plaintiff had complied with the document request.

The record discloses that in a letter dated April 6, 1981, Allstate rejected the plaintiff’s proof of loss statements and requested additional documentation in support of his claim. In this letter, Allstate granted the plaintiff until April 27, 1981, to submit proper proof of loss statements and supporting documents. Blank proofs of loss were attached to the letter and Allstate provided the plaintiff with the name and address of the Allstate representative to whom the new proofs were to be submitted. The plaintiff now maintains that this letter constituted an anticipatory breach by Allstate which in turn became a question of fact for the jury. We disagree.

Before renunciation can be treated as an anticipatory breach, there must be a positive and unequivocal manifestation of intention that the party will not render the promised performance when the time fixed in the contract arrives. (B&C Electric, Inc. v. Pullman Bank & Trust Co. (1981), 96 Ill. App. 3d 321, 421 N.E.2d 206.) The plaintiff offers'nothing to buttress his argument other than his subjective belief that Allstate did not intend to pay his claim. We believe that this subjective belief was insufficient to defeat Allstate’s motion for summary judgment. (See Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223.) Indeed, the very wording of the letter sent by Allstate to the plaintiff is thoroughly inconsistent with a repudiation of liability. (See Do-Re Knit, Inc. v. National Union Fire Insurance Co. (E.D.N.Y. 1980), 491 F. Supp. 1334.) We therefore do not believe that there was any evidence from which a jury could conclude that Allstate did not intend to fulfill its obligations under the policy.

Furthermore, the plaintiff never raised his anticipatory breach theory until after the trial court had ruled on the motion for summary judgment. Until that time, the plaintiff consistently argued that he had fully complied with the terms of the policy. Only after Allstate’s motion for summary judgment was granted did the plaintiff argue that he was justified in failing to comply with the policy because of Allstate’s alleged renunciation of the contract. We thus do not believe that the plaintiff’s anticipatory breach argument was properly raised or pleaded. See Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223.

For the foregoing reasons, the trial court’s order granting Allstate’s motion for summary judgment is affirmed.

Affirmed.

JOHNSON and ROMITI, JJ., concur.

      "*** within sixty days after the loss, unless such time is extended in writing by this Company, the insured shall render to this Company a proof of loss, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the following: the time and origin of the loss, the interest of the insured and of all others in the property, the actual cash value of each item thereof and the amount of loss thereto, all encumbrances thereon, all other contracts of insurance, whether valid or not, covering any of said property, any changes in the title, use, occupation, location, possession or exposures of said property since the issuing of this policy, by whom and for what purpose any building herein described in the several parts thereof were occupied at the time of loss and whether or not it then stood on leased ground, and shall furnish a copy of all the descriptions and schedules in all policies and, if required, verified plans and specifications of any building, fixtures, or machinery destroyed or damaged.”


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS TESTA, Defendant-Appellant.
    First District (1st Division)
    No. 82—1313
    Opinion filed June 29, 1984

      Sam L. Amirante, of Park Ridge, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Jane E. Liechty, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Following a jury trial, defendant Thomas Testa was convicted of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1(a)) and sentenced to 50 years in the Illinois Department of Corrections, to be served consecutively with a 15-year sentence for a prior felony conviction. Defendant appeals, raising the following issues for review: (1) whether the trial court erred in denying his motion to suppress evidence; (2) whether the denial of his motion to suppress photographic identification was error; (3) whether the court erred in denying his motion to exclude the dates of prior convictions; (4) whether the court erred in denying his request to cross-examine the victim as to her interest in a civil lawsuit; (5) whether he received a fair trial as a result of certain alleged prejudicial remarks made by the State in closing argument; (6) whether the court abused its discretion in sentencing him to a 50-year extended-term sentence to run consecutively with a prior 15-year sentence; and (7) whether his verdict should have been modified to a finding of guilty but mentally ill. For the reasons set forth below, we affirm.

The record reveals that on April 17, 1980, the victim was employed as a singer at a hotel in suburban Rosemont. On said date, at approximately 2 a.m., she left work and walked to her car at the far end of the hotel’s parking lot. Upon approaching her car, the victim was grabbed from behind, spun around and held by the throat. Her attacker demanded she open her car door and, when she refused, began strangling her. After forcing her into the car, the attacker held her and began grabbing her hair. During the ensuing struggle, the attacker pulled out handfuls of the victim’s hair. He then forced her to have sexual intercourse with him. Later, after telling the victim he loved her and asking for her forgiveness, he left the car.

Thereafter, the victim drove to the Rosemont police station. She gave the police a description of her attacker and told them she had scratched him under his left eye. The victim was then treated at a hospital and at that time shown a photographic lineup. The victim identified a photograph of defendant as her attacker, a warrant was issued for his arrest and, shortly thereafter, the police arrested defendant at his apartment and seized various items of clothing and hair from his bedroom which were later used as evidence at trial.

Prior to trial, defense counsel made motions to suppress identification and evidence. The physical lineup wherein defendant was present was suppressed by agreement, but the photographic identification was permitted to be used in evidence. Defendant’s motion to suppress the articles of clothing taken from his bedroom was also denied.

At trial, the State called as a witness the victim, who testified to the facts previously stated. The State’s other witnesses included arresting Officer Lee Mayer, who testified that defendant had a scratch above and below his left eye when he was arrested. Also testifying for the State was a forensic scientist who analyzed the physical evidence and stated that the blond hair fibers found on defendant’s clothing were consistent with the victim’s hair and could have originated from her. The only witness for the defense was defendant, who raised an alibi defense.

Based on the foregoing evidence, the jury returned a verdict of guilty. At sentencing, the State waived aggravation and the defense called in mitigation two witnesses who testified as to defendant’s mental condition. Defendant was sentenced to serve 50 years, consecutively with a 15-year sentence for a prior felony conviction.

I

Defendant initially urges that the trial court improperly denied his motion to suppress evidence consisting of two plaid shirts and two pairs of blue jeans. He alleges the trial court erred in finding that the seizure of such evidence was proper under the plain view doctrine. We disagree.

At the hearing on the motion to suppress, Officers Lee Mayer and Joel Smith testified that when they arrived at defendant’s residence to arrest him, he was wearing only his underwear. Following his arrest, defendant indicated he wanted to get dressed before going to the police station, and the officers escorted him to his bedroom to change. The officers further testified that as they entered defendant’s bedroom they observed two pairs of blue jeans and two plaid shirts on the floor, and noticed long blond hair fibers on one of the shirts. Officer Smith then took the plaid shirts and jeans and placed them in bags. Officer Mayer also stated that during an interview with the victim approximately two hours prior to the arrest, she stated that her attacker was wearing a plaid jacket or shirt and blue jeans. She also told them that he had pulled out large amounts of hair from her head. Officer Mayer described the victim’s hair as blond and fairly long.

In Illinois, the seizure of evidence is proper under the plain view doctrine when the following conditions are satisfied: (1) the object seized is in plain view; (2) the officer views the object from a position where he has a right to be; and (3) the facts and circumstances known to the officer at the time he acts give rise to a reasonable belief that the items seized constitute evidence of criminal activity. People v. Montgomery (1980), 84 Ill. App. 3d 695, 698, 405 N.E.2d 1275; People v. Holt (1974), 18 Ill. App. 3d 10,12, 309 N.E.2d 376.

In the present case, the State met all three requirements for a plain view seizure. First, arresting officers Mayer and Smith testified that the clothing in question was in plain view when they entered defendant’s bedroom. We note that defendant testified he believed the clothing was in his bedroom closet, which was closed when the officers entered the bedroom; however, defendant contradicted himself at one point with regard to whether he had put away the pair of jeans he wore the previous night. The trial court found the officers’ testimony to be credible. At a hearing on a motion to suppress, it is the function of the trial court to assess the credibility of witnesses (People v. Brown (1980), 81 Ill. App. 3d 271, 274, 401 N.E.2d 310), and the court’s findings should not be disturbed unless manifestly erroneous (People v. Stamps (1982), 108 Ill. App. 3d 280, 291, 438 N.E.2d 1282). Here, the trial court was able to observe the witness’ demeanor, and there is no showing that its findings were manifestly erroneous.

The second requirement for a plain view seizure is also satisfied here because the officers viewed defendant’s clothing from a position where they had a right to be. Officers Mayer and Smith testified that when they arrested defendant at the door to his residence he was wearing only his underwear and asked to put on some clothes. At this point, the officers quite properly accompanied defendant into his bedroom while he dressed. Ordinary prudence dictates nothing less to assure the safety of the arresting officer.

Finally, the facts and circumstances known to the officers at the time they seized defendant’s clothing gave rise to a reasonable belief that the items constituted evidence of criminal activity. The record discloses that during an interview with the victim shortly prior to defendant’s arrest, the victim told officers that her attacker wore a plaid jacket or shirt and blue jeans, and that he had pulled hair from her head. The officers noticed at the time that the victim had long blond hair. Under these circumstances, when the officers entered defendant’s bedroom and saw plaid shirts and blue jeans in a pile on the floor, with long blond hairs on one of the shirts, the incriminating nature of these items readily became apparent. Hence, the third requirement for a plain view seizure was met in this case.

Having determined above that the evidence in question was a proper seizure under the plain view doctrine, we hold that the denial of the motion to suppress evidence was not error.

II

Defendant next posits that the denial of his motion to suppress photographic evidence was improper, assigning two grounds for error. First, he argues that the words “Thomas A. Testa, Sex Offender,” appearing on the reverse side of his photograph, rendered the photographic evidence prima facie suggestive. This first argument must fail, however, since the victim testified that she looked only at the faces in the photographs and did not see the reverse sides. The trial court specifically found that the victim “never looked at the back of the pictures.” We find no reason to disturb this finding, given the victim’s unequivocal testimony and the trial court’s superior position to evaluate her credibility.

Defendant’s second ground for error pertains to a physical lineup which was conducted after the photographic identification and later suppressed by agreement of the parties. The physical lineup was composed of Latinos, while defendant is Italian. Defendant argues that the racial distinctness of this lineup rendered it suggestive and, under the “totality of the circumstances,” indicates the use of generally suggestive procedures used by the police. He relies on People v. Camel (1974), 59 Ill. 2d 422, 431, 322 N.E.2d 36, which discussed the “totality of the circumstances” test set forth by the supreme court in Stovall v. Denno (1967), 388 U.S. 293, 302, 18 L. Ed. 2d 1199, 1206, 87 S. Ct. 1967, 1972, and restated in Neil v. Biggers (1972), 409 U.S. 188, 199, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375, 382. The court in Camel reiterated the following factors to be considered in evaluating the reliability of pretrial identification: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. People v. Camel (1974), 59 Ill. 2d 422, 431-32.

Application of these five factors in the instant case demonstrates that the victim’s photographic identification was reliable. First, the victim had ample opportunity to view defendant at the time of the crime. She testified that she observed him for 7 to 10 minutes when he first grabbed her and struggled with her outside the car. At this time, fluorescent overhead lights were turned on in the parking lot. The victim stated she was able to view defendant’s face for an additional 7 to 10 minutes while he attacked her inside the car; during this time the car’s dome light was on because the driver’s door was not completely closed.

Second, the victim viewed defendant’s face with a heightened degree of attention; as a rape victim she “was no casual observer, but rather the victim of one of the most personally humiliating of all crimes.” (Neil v. Biggers (1972), 409 U.S. 188, 200, 34 L. Ed. 2d 401, 412, 93 S. Ct. 375, 382-83.) Third, the witness’ prior description of defendant was highly accurate and thorough. At the hearing on the motion to suppress identification, she recalled telling the police her attacker was “short, he looked Italian-looking; he had dark hair, dark eyes. I told *** [the police officers] that I had also scratched him under the eye, that he was wearing a plaid jacket, blue jeans and I described the car he was driving.” When the police arrested defendant, they found clothing which matched this description and saw defendant had a scratch below his left eye. Fourth, the victim’s identification demonstrated a high degree of certainty; she testified she stopped looking through the photographs when she came to defendant’s “[because I looked at the face, and I knew without any question in my mind that this was the man.” Finally, the victim identified defendant’s photograph a short time after the crime.

Given these circumstances, we find that the photographic identification had ample reliability and the denial of defendant’s motion to suppress this identification therefore was proper.

Ill

Defendant further maintains that the trial court erred in denying his motion in limine to exclude the dates of his prior convictions for impeachment purposes. Initially, we note that defendant has waived this issue for our review by failing to raise it in his motion for a new trial. (People v. Edwards (1978), 74 Ill. 2d 1, 4, 383 N.E.2d 944, cert, denied (1979), 442 U.S. 931, 61 L. Ed. 2d 299, 99 S. Ct. 2862.) Assuming defendant has not waived this issue, we still find no merit to his claim. Whether a defendant’s prior conviction may be disclosed for impeachment purposes is to be determined by the trial court based on the circumstances involved, and the trial court must be given considerable latitude in making the decision. (People v. Mason (1978), 61 Ill. App. 3d 918, 922, 378 N.E.2d 384.) Among the factors to be considered in exercising the court’s discretion are the nature of the crime and its nearness or remoteness in time. (People v. Montgomery (1971), 47 Ill. 2d 510, 518, 268 N.E.2d 695.) The supreme court in Montgomery adopted Federal Rule 609, which provides that evidence of a conviction is not admissible if more than 10 years have elapsed since the date of conviction or of the release of the witness from confinement, whichever is later.

In the case at bar, the defendant’s prior convictions not only were well within the 10-year limit but were very recent in time. The convictions occurred on July 6, 1981, and December 28, 1981. Defendant testified at his trial for the instant offense on March 19, 1982, less than one year later. The fact that defendant’s previous convictions were so recent in time made them particularly probative as to defendant’s credibility. Consequently, the trial court correctly found that the probative value of the prior convictions, including the dates thereof, outweighed any prejudicial effect.

IV

Defendant next claims that the trial court erred in restricting his cross-examination of the victim regarding a pending civil suit she filed against her employer for failure to provide a safe place to work. Defendant argues that this evidence was relevant to show the victim misidentified defendant due to her desire to name an offender and gain financially in her civil suit. The record reveals, however, that defendant failed to object to this matter in his motion for a new trial and, therefore, has waived the issue for purposes of review. People v. Edwards (1978), 74 Ill. 2d 1, 4, 383 N.E.2d 944, cert, denied (1979), 442 U.S. 931, 61 L. Ed. 2d 299, 99 S. Ct. 2862.

Even if we were to reach the merits of this issue, defendant’s claim must still fail. Although a witness may be impeached by a showing of interest, bias, or motive to testify falsely, such evidence need not be admitted where it is remote or uncertain. (People v. Triplett (1981), 99 Ill. App. 3d 1077, 1084, 425 N.E.2d 1236.) The latitude permitted on cross-examination to establish bias is within the trial court’s discretion. Cummings v. Chicago Transit Authority (1980), 86 Ill. App. 3d 914, 919, 408 N.E.2d 737.

Here, the evidence of the victim’s civil suit against her employer was at best speculative and uncertain evidence of interest or bias. As the trial court noted, the evidence establishes that in fact a rape took place in the parking lot patrolled by her employer and that in and of itself has nothing to do with the defendant. The victim, contrary to defendant’s assertion, did not “need a rapist” or have to prove beyond a reasonable doubt that a particular person, in this case the defendant, committed the rape in order to prove her civil case. An acquittal for defendant would not preclude a showing by the victim that her employer had failed to provide a safe place in which to work. As such, we find that the trial court did not abuse its discretion in restricting the cross-examination in question.

V

Defendant also maintains that certain comments by the State during closing argument and rebuttal were improper. Defendant first assigns error to the State’s reference during rebuttal to a photograph of him with the words “Sex Offender” written thereon. We find no impropriety in this reference because the State may direct the jury’s attention to matters appearing from the record. (People v. Bach (1979), 74 Ill. App. 3d 893, 897, 393 N.E.2d 563.) Here, the record reveals that during his cross-examination of Park Ridge police detective Terry Conley, defense counsel inquired, “Did you write the words which appear on the back of Tom Testa’s photograph, Thomas A. Testa, Sex Offender, 02-28-59, Park Ridge, P.D.?” and “At that time was Tom Testa a convicted sex offender?” Given the fact that defendant introduced evidence with respect to the writing on the photograph, including the reference to defendant as a sex offender, it was not error for the State to comment thereon.

We further reject defendant’s assertion that it was error for the State to comment during rebuttal on his failure to produce an alibi witness. Prior to trial, defendant indicated in his supplemental answer to the motion for discovery that he would raise an alibi defense at trial, and he listed Jeff Smith as a possible witness. During his direct examination at trial, defendant testified that he was with Jeff Smith at the time the rape was committed. During rebuttal, the assistant State’s Attorney stated:

“Let me just talk a little bit about Jeff Smith. It is interesting that Jeff Smith provides Mr. Testa an alibi that is completely phoney, I mean, well, that is as intimated that Mr. Jeff Smith was with Testa and had been everywhere hw [sic] as [sic] that night, then say that Mr. Testa was only at the Snuggery Pub. Well, of course at that particular time he did not know that Terry Conley knew everywhere they had been. Now it is interesting because at [sic] it occurs four days after the fact, and of course it is even more interesting that Mr. Smith is not produced, and certainly this appears — .”

Defendant’s objection to the above comments was overruled.

Although as a general rule it is improper for the State to comment on defendant’s failure to call a witness who is equally accessible to both parties (see People v. Pearson (1972), 2 Ill. App. 3d 861, 863, 277 N.E.2d 544), this rule is not applicable in the present case. Where, as here, alibi witnesses are injected into a case by the defendant, they are deemed unavailable to the prosecution. Any comment with respect to the failure of such witnesses to testify therefore is proper. (People v. Jackson (1979), 79 Ill. App. 3d 660, 667, 398 N.E.2d 906; People v. Mays (1972), 3 Ill. App. 3d 512, 514, 277 N.E.2d 547.) Consequently, we find that the second rebuttal comment complained of was not error.

Defendant’s third assignment of error concerns the following comment made by the State during closing argument: “Not one thing, nothing, not a whit of physical evidence that assist this defendant in his defense, nothing corroborates — .” Defendant argues the comment infringed upon his presumption of innocence and shifted the burden of proof to him.

We find that the above comment on defendant’s failure to produce physical evidence was proper because the State was permitted to direct the jury to the strength of its case. (People v. Salazar (1976), 37 Ill. App. 3d 800, 805, 347 N.E.2d 86; People v. Carbona (1975), 27 Ill. App. 3d 988, 1010, 327 N.E.2d 546, cert, denied (1975), 424 U.S. 914, 47 L. Ed. 2d 319, 96 S. Ct. 1114.) In Carbona, the defendant argued that the State’s comment on the unrebutted nature of the State’s ballistic evidence improperly diluted defendant’s presumption of innocence. (27 Ill. App. 3d 988, 1010.) This court disagreed, stating that “it has been held that the prosecutor may comment on the defendant’s failure to contradict the State’s expert testimony. Such commentary does not shift the burden of proof to the defendant thereby diluting her presumption of innocence.” 27 Ill. App. 3d 988, 1010.

Here, similar to Carbona, the State presented expert testimony regarding the various items of physical evidence. One expert testified that hair fibers found on defendant’s clothes were consistent with hairs from the victim’s head and could have originated from her. Another expert testified that seminal fluid was found on the victim’s pantyhose and on vaginal swabs taken from the victim. Since the record reveals the absence of any evidence by defendant to contradict this expert testimony, the State properly commented thereon.

VI

A

Defendant also challenges his sentence on several grounds. He first urges that the trial court improperly considered evidence from the presentence investigation report (PSI) because it was never admitted into evidence. The State maintains, and we agree, that the trial court properly considered information from the PSI because such consideration was mandated by statute. Section 5 — 4—1(a) of the Unified Code of Corrections specifically provides that at the sentencing hearing “the court shall:

(1) consider the evidence, if any, received upon the trial;
(2) consider any presentence reports-,
(3) consider evidence and information offered by the parties in aggravation and mitigation;
(4) hear arguments as to sentencing alternatives; and
(5) afford the defendant the opportunity to make a statement in his own behalf.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 1005-4-l(a).)

Additionally, section 5 — 3—1 requires:

“A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005-3-1.)

The requirement in section 5 — 3—1 has been construed as mandatory. (People v. Lynch (1984), 122 Ill. App. 3d 121, 124, 460 N.E.2d 817.) Given these statutory provisions, the court’s consideration of the PSI was not error. We briefly note that the State, contrary to defendant’s assertion, did not attempt to waive admission of the PSI. Although the State elected not to offer any evidence in aggravation, this election did not affect the court’s consideration of the PSI, mandated pursuant to statute.

Defendant further contends that in sentencing him it was error for the trial court to consider information in the PSI of certain prior arrests because they did not result in convictions. The State contends that the consideration of this evidence was proper, citing People v. La Pointe (1981), 88 Ill. 2d 482, 499-501, 431 N.E.2d 344. In La Pointe, the supreme court held that a trial court may “properly receive proof of criminal conduct for which no prosecution and conviction ensued,” with caution and sensitivity to possibilities of prejudice to defendant. People v. La Pointe (1981), 88 Ill. 2d 482, 499; People v. Lieberman (1982), 107 Ill. App. 3d 949, 959-60, 438 N.E.2d 516.) Here, we find no prejudice to defendant nor error by the court as to this matter.

B

We next consider defendant’s argument that the extended-term sentence he received was excessive because his conduct was neither sufficiently brutal nor heinous to warrant a 50-year extended-term sentence. Section 5 — 5—3.2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)) provides that the court may impose an extended-term sentence for “exceptionally brutal or heinous behavior indicative of wanton cruelty.” The determination and imposition of the extended-term sentence are within the sound discretion of the trial court; the reviewing court must give great deference to the trial court’s determination and will not modify or vacate a sentence on appeal absent an abuse of discretion. (People v. Jackson (1984), 122 Ill. App. 3d 166, 169, 460 N.E.2d 904, appeal denied (1984), 101 Ill. 2d 549.

In the instant case, we find that the trial court did not abuse its discretion in determining that defendant’s behavior was sufficiently brutal and heinous under the extended-term statute. The court focused on the manner in which the crime was committed, stating: “I consider it a heinous case because the evidence shows beyond a reasonable doubt *** [defendant] stalked the victim late at night in a parking lot. Stalked her. Grabbed her, and when she tried defending herself he throttled her with his hands.” The court referred to a photograph of the victim, State’s Exhibit 10, and commented that there were “[fjinger marks on the victim’s throat where *** [defendant] throttled her and threw her into her car.” The court further noted that defendant “[t]ore out whole handfuls of hair,” and observed that another photograph of the victim showed “the viciousness of the attack.” The court concluded: “In this Court’s mind if this isn’t torture then I don’t know what torture is. To rip out handfuls of hair — . It is this Court’s opinion if [the victim] resisted any further Tom Testa may have killed her.”

We note that defendant argues his conduct was not heinous because he did not carry a weapon or verbally threaten the victim’s life. This argument must fail in light of our recent holding in People v. Jackson (1984), 122 Ill. App. 3d 166, 460 N.E.2d 904, appeal denied (1984), 101 Ill. 2d 549. There, we affirmed a 40-year extended-term sentence for rape, finding that defendant’s behavior was sufficiently heinous and brutal despite the absence of a weapon, any express threats on the victim’s life, and lack of serious physical injury. 122 Ill. App. 3d 166, 169-70.

C

Defendant further asserts that the trial court erred in directing that he serve his 50-year sentence for rape consecutively with his prior 15-year sentence for attempted rape. He alleges that a consecutive sentence was not justified under 5 — 8—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(b)). This section, which allows for the imposition of a consecutive sentence provides:

“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.”

In imposing a consecutive sentence pursuant to the above provision, the trial court in this case concluded that defendant constitutes an ever present danger to the community and that the consecutive sentence was necessary to protect the public from further criminal conduct by defendant. The court based this conclusion on defendant’s criminal background, including arrests in 1978 and 1979 for aggravated battery, indecent liberties with a child and public indecency, and his more recent convictions for attempted felonious assault and attempted rape. The court noted that defendant committed the rape in the present case while released on bond for the attempted rape charge. It further noted that defendant committed the attempted felonious assault in Ohio while released on bond for the instant crime. Additionally, the court considered the exceptionally brutal and heinous circumstances of the instant offense.

After carefully considering the record before us, we find ample support for the trial court’s determination that the nature of the instant offense, coupled with defendant’s history and character, justified a consecutive sentence.

Defendant also alleges it was error for his sentence to run consecutively because it was for an extended term. Defendant, however, cites no rationale or authority in support of his allegation. We find no merit to this contention since section 5 — 8—4(b) does not by its terms limit the imposition of a consecutive sentence to instances where a defendant has not been sentenced to an extended term. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(b).) Moreover, this court previously has permitted extended-term sentences to run consecutively. People v. Young (1981), 96 Ill. App. 3d 426, 430-31, 420 N.E.2d 1051.

VII

Finally, defendant contends that the trial court erred in denying his motion to modify his verdict. He alleges that the evidence presented in mitigation at his sentencing hearing indicated his verdict should be modified from guilty to guilty but mentally ill, under Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—6. Defendant’s contention is unsupported by Illinois law.

The law provides that “mental illness is not an affirmative defense, but an alternative plea or finding that may be accepted, under appropriate evidence, when the affirmative defense of insanity is raised or the plea of guilty but mentally ill is made.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 6 — 4.) Further, section 115— 4(j) of the Code of Criminal Procedure of 1963 states in part:

“Unless the affirmative defense of insanity has been presented during the trial, the jury shall return a general verdict as to each offense charged ***. When the affirmative defense of insanity has been presented during the trial, the court, where warranted by the evidence, shall also provide the jury with a special verdict form of guilty but mentally ill, *** .” (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4(j).)

In the instant case, defendant failed to raise the insanity defense or even introduce any evidence regarding mental illness during his jury trial, as required under section 115 — 4(j). Rather, defendant raised only an alibi defense at trial, and first introduced evidence relating to mental illness at his sentencing hearing. We reject defendant’s untimely attempt to change the strategy of his case from a plea of not guilty based on an alibi defense to guilty but mentally ill after the jury returned a guilty verdict.

We finally note that even after hearing testimony at the sentencing hearing from defendant’s witnesses, the trial court remained unconvinced that defendant suffered from mental illness. Addressing defense counsel, the court stated: “[Y]our witness testified in all respects [that] your client, the defendant, Tom Testa, was completely normal.” Accordingly, we conclude the trial court properly denied defendant’s motion to modify the verdict.

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

Affirmed.

GOLDBERG and CAMPBELL, JJ., concur.