author: JUSTICE VAN DEUSEN

text:
    BERNARD A. WYSOCKI, d/b/a Welcome Mat Realty, Plaintiff-Appellee, v. JOHN BEDROSIAN et al., Defendants-Appellants.
    Second District
    No. 83—339
    Opinion filed May 15, 1984.
    Rehearing denied June 12, 1984.

      Donald C. Stinespring, of Donald C. Stinespring & Associates, of Spring Grove, for appellants.
    William I. Caldwell, Jr., of Caldwell, Berner & Caldwell, of Woodstock, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Defendants appeal from the trial court’s entry of summary judgment in favor of plaintiff real estate broker for his brokerage commission that was based on his procurement of a purchaser for defendants’ house.

On May 3, 1980, defendants, John and Jeanne Bedrosian (sellers), entered into an exclusive listing agreement with plaintiff, Bernard A. Wysocki, d/b/a Welcome Mat Realty, for the sale of the Bedrosian home. In that agreement, defendants agreed inter alia to pay plaintiff a real estate brokerage commission of 6% of the sale price provided plaintiff procured a purchaser ready, willing and able to purchase in accordance with the listing agreement. On September 23, 1980, defendants entered into a contract for sale of the residence with David and Joanne Winchell (buyers), located by the plaintiff.

Relevant financing provisions of the sale contract provided that the purchaser had 10 days to secure a written loan commitment and that upon written notice to the seller of a failure to obtain financing given within the 10 days the seller might, at his option, have an equal period of time to secure the commitment for the buyer. If the buyer failed to give the seller proper notice of his failure to obtain financing, he would be deemed to have waived the financing contingency for all purposes. If upon receipt of proper notice, the seller did not elect to or failed to secure a loan commitment for the buyer, the contract would be null and void and the earnest money refunded.

The contract also required that all notices were to be in writing, served on the parties at the address following their signatures; that the mailing of the notice by certified or registered mail, return receipt requested, would be sufficient service; and that the seller’s acceptance of the contract could be given in telegraphic form to the buyer or the listing broker who would be the buyer’s agent for receipt thereof. In this latter event, the date of the receipt of the telegraphic acceptance would be the date of the contract.

The sellers accepted the contract on September 23, 1980. The 10-day financing contingency would expire at midnight, October 3, 1980. On October 3, 1980, the buyers had not as yet received a written commitment for financing. Questions later arose as to whether the sellers and buyers had entered into a valid agreement extending to October 17, 1980, the time for buyers to secure financing. Buyers did secure financing prior to the expiration of the alleged extension period, but on October 6 sellers advised that they considered the contract null and void. The sale was not consummated, and the earnest money was returned to buyers.

On April 1, 1981, plaintiff, the real estate broker, filed his complaint alleging that he had procured a purchaser for defendants’ home pursuant to an exclusive listing agreement between the parties, attached to the complaint, and that plaintiff had “duly and fully performed all the terms and requirements of the Agreement” so that defendants thereby became indebted to plaintiff in the amount of 6% of the sale price, or $7,380. On August 14, 1981, defendants filed a motion to strike and dismiss the complaint due to plaintiff’s alleged failure to plead that conditions precedent to defendants’ duty to pay (contingencies in the sale contract) had been met. The court denied the motion the same day.

On August 27, 1982, defendants filed a motion for summary judgment supported by the affidavit of defendants and the deposition of the Winchells. On October 20, 1982, plaintiff filed a motion for summary judgment making reference to defendants’ summary judgment motion and affidavits and attaching and incorporating affidavits of plaintiff and Larry Bode, plaintiff’s associate. A hearing on both motions was held January 25, 1983, and the trial court granted plaintiff’s motion for summary judgment while denying that of defendants.

On February 7, 1983, the court entered judgment in plaintiff’s favor of $7,380 with interest from November 1, 1980, to the date of the order totaling $825.17 and costs of suit. Defendants’ post-trial motion was denied, and this appeal followed. On appeal, defendants request that we vacate or reverse the judgment against them and enter judgment in their favor on their motion for summary judgment.

Defendants first contend that the trial court erred in denying their motion of August 14, 1981, to strike and dismiss plaintiff’s complaint. They argue that plaintiff alleged that he procured a purchaser for defendants’ home and duly performed all of the terms and requirements of the exclusive listing agreement but did not allege anywhere in the complaint that the purchaser was one who was “ready, willing and able to purchase” as the listing agreement requires. Moreover, plaintiff did not plead that “conditions precedent” to the purchasers being bound, contained in the contract to purchase, were satisfied.

Defendants cite Brunette v. Vulcan Materials Co. (1970), 119 Ill. App. 2d 390, 395, for the proposition that “[i]f an essential and material allegation of fact is absent from a complaint, the complaint should be dismissed.” (Emphasis added.) In Brunette, the court could not find the necessary elements for an alleged agreement in the complaint and attachments thereto; to the contrary, the attachments constituted evidence of negotiations clearly contemplating a meeting to draft an agreement. Therefore, the agreement alleged in the complaint was a conclusion based on insufficiently pleaded facts. In such a case, the court concluded, a complaint may be dismissed, and the court upheld the trial court’s granting of a motion to dismiss.

In this case, however, plaintiff attached a copy of the exclusive listing agreement and the contract to purchase as exhibits to the complaint, specifically referring to them in the body of the complaint. According to the Code of Civil Procedure, an exhibit is a part of the pleading for all purposes (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 606), which would apparently include ruling on a motion to dismiss. The attached exhibits are an integral part of the complaint and must be so considered. (Theodosakis v. Austin Bank (1981), 93 Ill. App. 3d 634, 637.) The exclusive listing agreement here attached to the complaint states that the 6% commission is payable inter alia when the realtor provides a purchaser ready, willing and able to purchase, and the complaint alleges that plaintiff duly performed all of the terms and requirements of that agreement thus entitling plaintiff to a 6% commission.

Pleadings are to be liberally construed with a view of doing substantial justice between the parties. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 603(c).) A reviewing court should interpret the facts alleged in the light most favorable to the plaintiff (Theodosakis v. Austin Bank (1981), 93 Ill. App. 3d 634, 637), and an action should not be dismissed if it clearly appears that a set of facts could be proved under the pleadings that would entitle plaintiff to relief (93 Ill. App. 3d 634, 637; Panorama of Homes, Inc. v. Catholic Foreign Mission Society, Inc. (1980), 84 Ill. App. 3d 142, 145). All facts well pleaded as well as all reasonable inferences that can be drawn therefrom must be accepted as true in considering a motion to dismiss. Theodosakis v. Austin Bank (1981), 93 Ill. App. 3d 634, 636-37; Panorama of Homes, Inc. v. Catholic Foreign Mission Society, Inc. (1980), 84 Ill. App. 3d 142, 145.

Unlike Brunette the exhibits attached here support the allegations in the complaint. Read together, the complaint and exhibits sufficiently allege that plaintiff procured a purchaser ready, willing and able to purchase. That was a requirement of the exclusive listing agreement entitling plaintiff to a 6% commission, and the complaint alleges that plaintiff performed all of the terms and conditions of that agreement thereby entitling plaintiff to that commission.

As to the conditions in the sale contract (1) that the buyers be able to secure financing within a stated time and, failing to do so and giving proper written notice thereof to the sellers, the buyers might avoid their contract obligation to purchase if the seller elected not to or failed to secure financing for the buyers within a like amount of time and (2) that buyers might avoid their obligation to purchase if they were unable to sell their current residence, these appear to be conditions subsequent rather than conditions precedent. A condition precedent is to be performed before the obligation becomes binding on the parties, while a condition subsequent is one which divests liability that has already attached on the failure to fulfill the conditions. (Black’s Law Dictionary 266 (5th ed. 1979).) The sale contract states that buyers’ failure to give proper notice of a failure to obtain financing operates as a waiver of that contingency and that with proper notice of such failure the contract will become null and void upon seller’s election not to or failure to secure a commitment for the buyer. Similarly, the prior residence sale contingency allows the seller to continue to show the property to others but obligates the seller to immediately inform the buyer of any other offer they wish to accept thereby giving the buyers 72 hours to elect to waive the contingency and close within 20 days. It is clear that under both of these conditions the parties were bound to the contract, such liability being subject to divestment.

Based upon the pleadings, including the attached exhibits, together with all reasonable inferences which can be drawn from them, they constitute allegations of specific facts which, if proven, would establish that plaintiff procured a buyer ready, willing and able to purchase the subject real property. (See Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 303.) The trial court therefore properly denied defendants’ motion to strike and dismiss plaintiff’s complaint.

We turn then to the issues of whether the trial court erred in granting plaintiffs motion for summary judgment and denying that of defendants. A motion for summary judgment is proper where the pleadings, depositions and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c).) The extreme nature of the summary judgment remedy requires that the trial court exercise extraordinary diligence in its review of the record so as not to preempt the right to a trial by jury or the right to fully present the factual basis for a claim. (Estate of Kern v. Handelsman (1983), 115 Ill. App. 3d 789, 793.) The trial court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. Summary judgment should be granted only when the party’s right to it is clear and free from doubt. (Estate of Kern v. Handelsman (1983), 115 Ill. App. 3d 789, 793; Gagliardo v. Vodica (1978), 58 Ill. App. 3d 1053, 1055.) Inferences may only be drawn from undisputed facts, and, if fair-minded persons may draw differing inferences from these undisputed facts, this presents a material issue to be tried. (Gagliardo v. Vodica (1978), 58 Ill. App. 3d 1053, 1055.) On appeal, the court will reverse an order granting summary judgment if it determines that a material issue of fact exists and that the moving party is not entitled to judgment as a matter of law. Estate of Kern v. Handelsman (1983), 115 Ill. App. 3d 789, 793.

With regard to these motions, the trial court had before it the testimony of the Winchells (depositions on file), the Bedrosians (affidavit) and Larry Bode, plaintiff’s sales associate (affidavit). According to Larry Bode, he called the Bedrosian residence on October 3, 1980, and advised Jeanne Bedrosian that the purchasers needed an extension to the contract until October 17, 1980, to obtain their mortgage. She said it was agreeable with her and her husband. He then indicated that there would be a written extension, and Jeanne Bedrosian directed him to leave it at their residence and she and her husband would sign it. Bode delivered the extension to the Bedrosian residence on October 3 by leaving it on the dining table. On October 6 defendants told Bode by phone that they had agreed to the extension, they had signed the agreement and they would leave it to be picked up by Bode or plaintiff when they wished, but on October 11, 1980, John Bedrosian called Bode and indicated that the Bedrosians were changing their minds and were going to void the extension by striking out their signatures. Bode, based upon the verbal statement of Jeanne Bedrosian, had communicated the extension agreement to the Winchells, who were able to obtain a mortgage commitment with the extended period of time.

According to the Bedrosians, they contacted Larry Bode on October 3, 1980, to find out whether the Winchells had secured a written loan commitment pursuant to the real estate sale contract. On the evening of October 4, 1980, they returned to their home to find a document on their kitchen bar allegedly executed by David and Joanne Winchell informing them that they had not secured a written loan commitment and requesting an extension until October 17, 1980, to secure the same. On the evening of October 4, 1980, the Bedrosians signed that agreement, but, they further stated in their affidavit, on October 6, 1980, after receiving no communications from any of the parties involved in the sale as to when the document would be picked up by the plaintiff, they voided their signatures on the extension agreement and thereafter considered the real estate contract to be null and void. After they had voided their signatures and at approximately 5:30 p.m., they received a telephone call from Bode. They then informed him that they had voided their signatures on the extension agreement. On October 11, 1980, after receiving a call from the Bedrosians, Bode picked up the extension papers, and at 8:30 p.m. on October 11, Bode advised the Bedrosians that the Winchells had secured a written commitment for a loan. On November 17, 1980, defendants authorized their attorney to inform plaintiff that the Winchells’ $1,000 earnest money should be released and refunded, as the sale contract was null and void due to the buyers’ failure to meet required contingencies by their due dates. The buyers’ receipt of said earnest money was acknowledged on December 2,1980.

According to Joanne Winchell, she had received an oral confirmation from Larry Bode that the Bedrosians had accepted an extension for obtaining the mortgage. Bode had called the Bedrosians and they said they would sign the papers, but he did not get there to pick them up, and, by the time he got there to pick them up, they had voided it. She had never talked to the Bedrosians about the extension. She signed the acceptance agreement for herself and her husband. She stated that the mortgage commitment was had on October 4 or October 11.

Having considered the foregoing facts and having drawn all reasonable inferences therefrom against the moving party, we find that the trial court erred in concluding that there were no genuine issues as to material facts.

The trial court correctly observed that if the notice indicating an inability of the purchasers to obtain financing was ineffective then the financing contingency was presumed to have been met and that the facts were otherwise sufficient to establish that the plaintiff was entitled to a judgment for his real estate commission. However, the trial court never concluded as a matter of law whether this notice was effective or ineffective; rather, the court observed that it had to rule in plaintiff’s favor regardless of whether the notice was interpreted as effective or ineffective. As there was considerable evidence that this notice was properly given in accordance with the terms of the contract, the court could not, as a matter of law, have held the notice to be ineffective. We also conclude that, on this record and in view of the testimony of the Bedrosians, the court could not have held as a matter of law that the notice was effective. A genuine question of fact existed on this issue.

Defendant sellers argue that even if the buyers had given effective notice concerning their inability to secure financing the contract would be null and void after October 3, since the defendants did not elect to secure financing for them. This argument has no merit. The contract clearly provides that if the buyers properly notify defendants in writing within the time allotted that they are unable to secure financing, then the sellers have an equal period of time to secure financing for the buyer and that if the sellers fail or elect not to provide such a commitment for financing for the buyers, the contract shall be null and void. The sellers under this contract had 10 days to make the election and, according to their own affidavit, they did not consider the contract to be null and void until they voided their signatures on the extension agreement on October 6, 1980.

The crucial issue on this appeal is whether or not the trial court could conclude as a matter of law that the agreement entered into by the parties to extend the buyers’ time to secure financing was a valid one. Defendants urge that the trial court erred in finding that they had entered into a valid extension agreement. They offer a number of reasons.

First, they erroneously argue that an extension of time to preclude the termination of a real estate contract must be in writing and signed by the parties to be charged in order to satisfy the Statute of Frauds (Ill. Rev. Stat. 1981, ch. 59, par. 2). Our supreme court has held that the time for performance of a written contract for the sale of land may be extended by parol before the time fixed in the contract has expired, notwithstanding the Statute of Frauds. (20 Ill. L. & Prac. Statute of Frauds sec. 7 (1956), citing Kissack v. Bourke (1906), 224 Ill. 352.) In Kissack the supreme court rejected the contention that an agreement of extension was invalid by virtue of the Statute of Frauds, observing that a party may waive strict compliance with the contract terms by his conduct or words inconsistent with a claim afterwards asserted. (See 224 Ill. 352, 357.) Our research indicates that Kissack still is the law in Illinois.

It would appear, therefore, that if the parties entered into a binding oral agreement on October 3 to extend the time for the Winchells to secure financing to October 17, the plaintiff would be entitled under the circumstances to summary judgment. According to Larry Bode’s affidavit, he spoke to Jeanne Bedrosian by telephone and secured, through her, the sellers’ agreement to the extension on October 3, and he left the written extension agreement at the sellers’ home the same day. The Bedrosians’ affidavit does not mention this aspect of the conversation but states that they found the written extension agreement at their home on the evening of October 4. In her deposition, Joanne Winchell was unable to recall on what date she received the oral confirmation of the extension agreement from Larry Bode. A genuine issue of material fact exists as to when the oral agreement occurred.

Defendants also argue that the writing purportedly extending the time was not signed by the parties to be charged because Joanne Winchell signed her husband’s name without having his written authorization to do so. Such authorization is generally required in contracts for the sale of real estate. (See Hagen v. Anderson (1925), 317 Ill. 173, 177.) However, if a writing comporting with the Statute of Frauds was not necessary in order to extend the time, then it was not necessary for Joanne Winchell to have had her husband’s written authorization to sign such a writing.

Defendants strenuously maintain that the parties intended to enter into and be bound, not by an oral agreement, but by a written agreement, the acceptance of which was never properly delivered to the offeror as required in such circumstances. They contend that, under Illinois law, the agreement is not binding without delivery of the written agreement. Defendants rely on Barton Chemical Corp. v. Pennwalt Corp. (1979), 79 Ill. App. 3d 829, 834, for the proposition that, according to Illinois law, even if parties to a contract agree to all of its terms, there is no contract until a written document is executed where the parties understand that the execution of a formal document is a prerequisite to their being bound. Further, delivery and acceptance of a written contract are necessary if it is to be of binding effect (Glabman v. Bouhall (1980), 81 Ill. App. 3d 966, 969), and the mode of delivery of the offer is controlling in determining whether the acceptance has been delivered to the offeror (Estate Stove Co. v. Kenney (1924), 234 Ill. App. 366). Here, defendants contend, the extension offer to them was personally delivered and required the buyers’ actual receipt of defendants’ acceptance to be a valid and binding contract. Though they signed the written extension agreement, they voided their signatures prior to its delivery to the buyers, thus exercising their right to revoke their acceptance prior to effective delivery to the offerors (234 Ill. App. 366, 369).

However, the court in Barton Chemical Corp. v. Pennwalt Corp. (1979), 79 Ill. App. 3d 829, 834, went on to say that where a formal document is to be prepared to memorialize the bargain already made the bargain is enforceable even though the document has not been executed. It has been recognized that where the Statute of Frauds is not a bar, the parties may enter into a binding and enforceable contract even though no formal contract was signed or delivered, so long as all. of the essential terms have been agreed upon, and that conversely, where the intent of the parties is clear that they will not be legally bound until execution and delivery of a formal agreement, no contract comes into existence until that time. Crum v. Krol (1981), 99 Ill. App. 3d 651, 657.

This does not mean, however, that delivery of a written agreement is a necessary prerequisite to the formation of every written contract. Again, this is a question of intent of the parties, which is the crucial element. If the clear intent of the parties is that neither will be legally bound until the execution and delivery of a formal agreement, then no contract comes into existence until such execution and delivery. The evidence may establish that the parties intended that a valid written contract exist upon execution without the necessity of delivery. (See Lakshman v. Vecchione (1981), 102 Ill. App. 3d 629, 632.) Whether the parties intended to be bound only by a written agreement and, if so, whether the parties further intended that delivery was prerequisite to the existence of a binding contract are genuine issues of material fact in this case.

In sum, considering the limited evidence presented by the parties in support of their motions for summary judgment and drawing all favorable inferences against the movant, we conclude that genuine issues of fact exist as to: (1) whether the notice of the buyers’ inability to obtain financing was effective or ineffective; (2) whether the Winchells and the Bedrosians entered into an oral contract on October 3 extending the buyers’ time to secure financing or intended only to be bound by a written contract; and (3) whether, if the parties intended to be bound by a written contract, it was also the intent of the parties that acceptance would not be complete until delivery of the contract to the buyers. Having concluded that genuine issues of fact exist, we affirm the trial court’s denial of defendants’ motion for summary judgment, reverse the trial court’s granting of plaintiff’s motion, vacate the judgment in favor of plaintiff and against defendants, and remand the matter for further proceedings.

Affirmed in part; reversed in part and remanded.

LINDBERG and UNVERZAGT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KARNS PRESIDING JUSTICE WELCH,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEE OTIS GRIFFIN, Defendant-Appellant.
    Fifth District
    No. 82—319
    Opinion filed May 14, 1984.

      WELCH, P.J., dissenting.
    David C. Hoffman, of Ripplinger, Dixon & Hoffman, of Belleville, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Stephen E. Norris and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Lee Otis Griffin and Jimmie Lee Smith were convicted by a jury of three counts of murder and one count of armed violence. Griffin was sentenced to three concurrent terms of 40 years for the murder convictions and one concurrent term of 30 years for the armed violence conviction. Smith was sentenced to three concurrent life terms and one concurrent term for 60 years. Smith and Griffin jointly appealed from their convictions. (People v. Griffin (1984), 124 Ill. App. 3d 119.) Griffin also appealed from the denial by the circuit court of St. Clair County of his post-conviction petition alleging a denial of effective assistance of counsel and his post-trial petition to set aside the conviction because the State’s key witness perjured himself. Although our separate opinion on the direct appeal by Smith and Griffin set out the facts leading to their convictions, our consideration of Griffin’s separate appeals must begin with a fuller factual statement.

About 5:30 p.m. on February 5, 1981, in an apartment in East St. Louis, four people were repeatedly shot. One of the victims, Charles Eellick, feigned death and lived to testify as the State’s key witness. Another, Ron Walker, lived long enough to tell the story of the attack on him to three witnesses, each of whom heard something different. The other two, Charles Sims and Christi Smith, provided no clue to the events leading to their deaths. Within hours of the shooting, Lee Otis Griffin was arrested for the murders. A few days later Jimmie Lee Smith gave himself up. A third man, Will Hudson, was never located. No guns were recovered. Griffin’s red and white Cadillac, seen at the apartment house, was eventually found abandoned. No fingerprints or other physical evidence was offered to connect it with the killings.

Griffin originally retained Ralph Derango to represent him. They had one conference which lasted about an hour. Following that conference, Derango talked with L. C. Moore, the investigating officer. From Derango Moore learned that Griffin denied doing any of the killing but that he could identify those involved. The information passed on by Derango confirmed Moore’s identification of those involved. When Moore served a warrant on Griffin in jail, Griffin again denied that it was “his idea to kill anyone.” It was Moore’s opinion, based on his knowledge of Smith, that Smith would leave no living witnesses.

Jimmie Lee Smith was arrested several days later and was represented from the beginning by Marvin Goldenhersh. After Griffin’s family discharged Derango, Goldenhersh undertook the joint representation of Griffin and Smith. He received a copy of the grant jury proceedings in which Griffin’s earlier actions and statements were reported along with Moore’s opinions.

On May 5, 1981, at a hearing on a defense motion for a continuance, defense counsel reported that he spent the entire previous day with both his clients in case the continuance should not be granted. The court probed for the possibility of a conflict in the joint representation, but it is clear from the record that counsel at no time during his joint representation of Smith and Griffin recognized any conflict of interest sufficient to require his withdrawal. In response to a direct question from the court, counsel replied, “There is no conflict, Your Honor.” Motions for the severance of the trials of the two defendants stated only that each would be prejudiced by admissions made by the other which the customary instructions would not cure and that Griffin would be prejudiced if tried with a codefendant who could not testify because he had a “substantial criminal record.” Counsel’s argument for the motions to sever led the court to question him closely about the firmness of the proposed alibi defense. The court reminded him that it would not permit “any admission by Lee Otis Griffin that he and Jimmy Smith were in there together.” The court asked whether counsel was “saying that the defendant who made admissions against interest now comes up with an alibi defense.” Counsel answered that although there were no admissions that Smith and Griffin acted in concert, “[t]hey were either in this together, or they weren’t.” Prior to jury selection, the State’s Attorney again questioned whether, in light of discovery provided by his office and counsel’s own interviews with the defendants, the defense was aware of a possible antagonism between the defenses of Griffin and Smith. No further reference to a conflict was made at trial.

The alibi defense offered at trial linked the defendants together during most of the day on which the murders occurred. Griffin testified that Smith came to work in the Griffin family’s furniture store at 11 a.m. and they were together there until 3:30 p.m., when they left together to run personal errands. They were in Easton’s Tavern from about 5 p.m. until just before 7 p.m. Griffin testified that he left his red and white Cadillac at the store and drove a black and white Maverick borrowed from his sister-in-law. After leaving Easton’s Tavern, Griffin returned alone to his sister’s house where he met a friend and sat with her in her car. Defense witnesses confirmed Griffin’s version of the alibi, but the prosecution’s cross-examination underscored various inconsistencies and improbabilities in their stories.

Identification of those responsible for the shooting was the central issue at trial. Three eyewitnesses, each of whom was able to see only a part of the events leading to the shooting, provided conflicting testimony as to who was in the apartment at any given time, who was armed, and who actually did the shooting.

Charles Kellick was the State’s key witness. In reciting the events leading up to the shooting, Kellick said he had picked up Velma Robinson and Charles Sims and they all agreed to go to Christi Smith’s apartment. Kellick drove the three of them there in his truck which he parked in front of the apartment house. Sims went up to the building alone but returned to say he heard Christi crying inside. Kellick then went with Sims into the building and then into the apartment where they found only the girl and a man in the bathroom. Kellick identified the man as Griffin. Two men walked in behind Kellick. He thought one of them had a revolver. As Sims stepped toward the girl, Griffin shot him. Kellick did not see the weapon or which hand the weapon was in. After Sims was shot, Kellick pushed the two men down and ran to the front door of the apartment. As he put his hand on the knob he was shot in the back of the head. Smith then walked up to Kellick and shot him in the face. Smith kicked him and left him to die: Kellick pretended to be unconscious but eventually was able to crawl into a hiding place under the steps.

Kellick was able to recognize Griffin and Smith because he had seen them a few weeks before the shooting near a house where he dropped Christi Smith off. He had once gone to Griffin’s store to buy some beds. When Officer Thurman questioned Kellick at the hospital, Kellick said he did not know who did the shooting. Three days later he identified Griffin in a video lineup presented at the hospital. Five days later he identified Smith’s photograph. Kellick remembered seeing a red and white Cadillac behind his truck as he started toward the apartment. He could not say whether it had pulled up after he did or was already there.

Kellick’s prior statement was read to the jury. In it he said that the girl was sitting in the bathroom and Griffin was with her and that two black men were standing by the door. He recognized them because he had seen them before with Griffin. He had seen Smith five times and Will Hudson at least once. Kellick admitted that the statement might not have been completely accurate because it was taken just after he had undergone surgery. After he was released from the hospital, Kellick learned from street contacts and a police officer that the house where had seen Griffin, Smith and Christi was considered a dope house.

Kellick admitted that he had been convicted twice, once for burglary and once for escape from the St. Clair County jail where he had been held for murder, and that he was presently under indictment for the theft of a truck. His trial for theft had been continued until after the murder case was completed. He denied that he had made any deal with the State regarding his testimony.

Velma Robinson, a passenger in Kellick’s truck, confirmed his account of a red and white Cadillac behind the truck and two men entering the building after Kellick and Sims went in. She saw the car pull up slowly after Kellick parked. Two men got out, one of whom she recognized as Griffin. They went in. She heard one shot a few seconds after the two men went in. The same two came out and got in the car, which they pulled up in front of the truck and parked for five minutes. They then drove around the corner and five minutes later went back into the building after Ron Walker, another victim, had gone in. She heard another shot. She drove off to get the police. On cross-examination, the defense established that the lighting was good and she was sure she had seen Griffin get out of the Cadillac. Her trial testimony was more detailed than her statement to the police in which she had said she heard two shots five seconds apart, omitting any reference to the Cadillac or the two men.

Ron Walker, whom Robinson had seen enter the apartment house, was shot five times but managed to get to a nearby grocery store. He stumbled in just as Darrell Rice, an Illinois State trooper, and Lionel Settles, an East St. Louis policeman, were talking. David Winchester, assistant manager of the store, came up just after Walker arrived. All three men agreed that Walker identified some of those involved, but they differ on exactly what he said. Over defense objections, the court admitted Walker’s statements as dying declarations. Settles testified that Walker said “Lee” had shot him and further identified “Lee” as a man he had previously seen hanging around a furniture store. Settles asked Walker about the other assailant and Walker identified him as Rush City Jimmy, the owner of the furniture store. Settles later testified that Walker identified “Lee” as the owner of the store and Rush City Jimmy as the one who killed the girl. Although Settles did not then know who Rush City Jimmy was, he understood two men were involved.

While Settles was out of the room where Walker had been taken, Rice heard Walker say that Rush City Jimmy killed the girl but that the person who shot him was “Lee’s friend.” Rice understood that Walker “was shot as he entered the apartment by the subject already inside the apartment.” Winchester came into the room in time to hear some comment about someone who owned a furniture store but did not hear Walker identify who had shot him. He agreed that Rush City Jimmy was named as the girl’s killer. Winchester and Rice also agreed that Walker identified a red and white Cadillac as the car in which the attackers fled.

Although Winchester’s original statement reported Walker saying there were three men inside the apartment, “the guy that owns the furniture store and his friend, and another, the light-skinned dude,” Winchester later testified that the “light-skinned dude” was the same as the storeowner and that only one man was inside the apartment with a gun. Another version of the story offered to the grand jury had Walker saying he had been shot by two people and that two people met him at the apartment door. Walker said he went into the apartment where he saw two bodies on the floor, one of them the girl’s. Police found her body on the steps outside the apartment leading to the front entrance.

In defense counsel’s closing statement, he made much of the ambiguities and inconsistencies in the testimony of Walker, Robinson, and Kellick. He attempted to discredit Kellick and Robinson’s identifications of Griffin as police-inspired cover-ups. He accurately pinpointed the impossibility of both Kellick and Robinson being correct about when Griffin was present in the apartment. He did not point out that the jury might infer from Robinson’s account that Griffin was on a somewhat different footing with regard to the flow of events than the first man in the apartment, who apparently stayed there through the whole affair. Defense counsel pointed out the considerable inconsistencies in the reporting of Walker’s declarations. He did not, however, point out the disparity between the certain identification of Rush City Jimmy and the uncertainty of Walker’s identification of the man who shot him and whether there were one, two, or three men in the apartment when he was shot.

After seven hours of deliberation, the jury returned a verdict of guilty against both defendants. The post-trial motion for a new trial was denied. Nothing was offered by the defense by way of mitigation at the sentencing hearing. Defense counsel informed the court that both defendants agreed to accept the court’s view of their prior records.

On March 18, 1982, Derango again represented Griffin on a petition to set aside the judgment or to grant a new trial (Ill. Rev. Stat. 1981, ch. 110, par. 72) on the ground that Charles Kellick had perjured himself to gain leniency on a charge of stealing a truck. Derango pointed out that Kellick’s identification of Griffin as the man already in the apartment with the girl was directly contradicted by Robinson’s positive identification of Griffin as one of two men entering the building behind Kellick and Sims. Kellick’s son, Scott, swore that his father had joked about the trial and based his identification of Griffin on information supplied by the police. Scott’s affidavit was attacked as insufficient because it was unverified, based on hearsay, and notarized by Derango, the attorney of record. Scott testified that he had signed the affidavit because he had expected to obtain an early release from prison. He was later permitted to testify to overhearing his father say his identification of Griffin was based on police information rather than his own knowledge and that he expected to get probation. The elder Kellick denied that he had perjured himself or that he had ever told Scott anything about a deal with the State’s Attorney.

The State’s Attorney and Kellick’s attorney on the theft charge denied that any bargain had been struck before Kellick testified against Griffin and Smith. The State’s Attorney agreed that there had been a general understanding that Kellick’s trial would be continued until after he testified. The State was “attempting to elicit the cooperation of Mr. Kellick in the trial of Lee Griffin” and transmitted to Kellick through his attorney that “certainly if he cooperated we would take that into consideration at his trial. And therefore, if his trial was prior to his cooperation, there was no leverage for testimony.” The court admitted into evidence a transcript of the court proceedings on the theft charge against Kellick. Our record does not include the transcript, but it apparently showed that the State recommended probation because Kellick had testified favorably for the State in the murder trial.

Griffin’s petition was denied because he failed to carry his burden of showing Kellick’s perjury.

On August 4, 1982, Griffin filed a post-conviction petition alleging a denial of his constitutional right to the effective assistance of counsel. (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1.) Griffin alleged that he was denied effective assistance of counsel because his attorney had a conflict of interest in representing Smith as well as Griffin “which prevented adequate and proper counseling of and representation of [Griffin] before and at trial ***.” Griffin alleged that he repeated to his attorney the account he had originally given to Derango: that he was present at the murder scene but took no part in it and tried to stop Smith from killing Christi Smith. He said counsel rejected this story, advising him that such an admission would convict Smith and make Griffin fully accountable. No mention of Griffin’s defense inculpating Smith was made in a motion to sever the trials of Smith and Griffin. Griffin alone testified at trial to the alibi which he and Smith concocted to place both of them in a tavern at the time of the murders.

What occurred between Derango and Griffin and later between Griffin, Smith, and their attorney is presented in the affidavits and testimony offered by Griffin and Derango at the post-conviction hearing on October 12, 1982. Both Derango and Griffin were cross-examined, but their testimony was uncontradicted by affidavit or testimony.

Griffin’s testimony confirmed the assertions made in his petition and supporting affidavit. He made one change in the wording of the affidavit, replacing “I arrived after the incident started and do not know when it began” with “I arrived after Jimmy Smith and after the argument had started.” Griffin then testified that after his only interview with Derango at which he told of being present at the incident but not participating, he repeated the story to his new attorney. He said counsel then told him that admitting he was there would make him accountable. As the result of a discussion between the defendants and their attorney, Griffin agreed he alone would testify because Smith’s record was too damaging to risk his taking the stand. Under cross-examination, Griffin admitted that counsel did not advise him “to come up with an alibi.” He testified that he gave up his original intention to say Smith was responsible for the crimes because he “strongly believed” he would convict himself if he stuck to the first story.

Derango testified that he had been hired by Griffin’s family and reported in narrative form what he had learned from Griffin during their one interview. Griffin and a friend, Hudson, had come to the apartment house to pick up Smith. Smith and Hudson were armed but Griffin was not. Griffin had tried to save Christi Smith but “the whole incident proceeded over his objection ***.” Derango advised Griffin to offer to testify for the State. Derango made a preliminary offer of assistance to the investigating officer. The offer was not followed up because Derango was discharged by Griffin’s family. It was Derango’s professional opinion that Griffin had a valid defense based on his original story but that it could not have been presented successfully in a joint representation of Smith and Griffin.

The trial court was unable to determine whether Griffin was telling the truth about what Goldenhersh had been told or had told Griffin. Based on his familiarity with the trial record, the court found that Griffin had been “afforded a defense according to the defendant’s own testimony on the stand under oath” and there was “no conflict in the defense between the defendant and his co-defendant.” The petition was denied.

The first issue we are asked to decide is whether Goldenhersh’s joint representation of Griffin and Smith denied Griffin the effective assistance of counsel guaranteed by the United States Constitution. (U.S. Const., amends. VI, XIV.) Secondly, we are asked to determine whether Griffin was denied a fair trial because Charles Kellick was induced to perjure himself in exchange for favorable consideration by the State with regard to a theft charge pending against him.

The State has provided criminal defendants the device of a post-conviction petition in order that they may raise constitutional questions about their defense. (Ill. Rev. Stat. 1983, ch. 38, par. 122 — 1.) The post-conviction hearing is a civil procedure, and the defendant has the burden of showing by a preponderance of the evidence that he has been denied a constitutional right. (People v. Stovall (1970), 47 Ill. 2d 42, 264 N.E.2d 174, cert. denied (1971), 402 U.S. 997, 29 L. Ed. 2d 164, 91 S. Ct. 2183.) The court is to consider the evidence offered at the post-conviction hearing and the trial record together in arriving at its decision. (People v. Ferrance (1975), 32 Ill. App. 3d 358, 336 N.E.2d 532.) Its decision will not be disturbed unless it is found contrary to the manifest weight of the evidence in the record as a whole. People v. Murphy (1979), 78 Ill. App. 3d 132, 397 N.E.2d 68.

The constitutional interest to be protected in the present case is Griffin’s right to the effective assistance of counsel. Consideration of what is meant by effective assistance of counsel most often arises in cases where a trial court has refused to allow separate representation for multiple defendants. Here the court was ready to consider separate representation; no such request was made. This does not mean that Griffin was not entitled to the same full measure of protection defined in such cases as Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457, and Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173. In Glasser the Supreme Court pointed out that “the sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests.” (315 U.S. 60, 70, 86 L. Ed. 680, 699, 62 S. Ct. 457, 465.) Where there is a conflict in joint representation it may make itself felt in the attorney’s reluctance to challenge evidence which favors one client to the detriment of another or his failure to argue that there are degrees of culpability among multiple defendants. The sixth amendment is not satisfied “when the advocate’s conflicting obligations have effectively sealed his lips on crucial matters.” Holloway v. Arkansas (1978), 435 U.S. 475, 490, 55 L. Ed. 2d 426, 438, 98 S. Ct. 1173, 1181.

It is not enough for a defendant alleging denial of the effective assistance of counsel to point to the fact of joint representation as evidence of a conflict. He must show that an actual conflict of interest existed or became apparent at trial. (People v. Ballard (1978), 65 Ill. App. 3d 831, 382 N.E.2d 800; People v. Thompson (1977), 51 Ill. App. 3d 53, 366 N.E.2d 375; People v. Chapman (1965), 66 Ill. App. 2d 124, 214 N.E.2d 313.) This court will not indulge in mere speculation as to the existence of a conflict which hampered counsel’s defense efforts. To do so would invite invention by disappointed defendants (People v. Coleman (1980), 85 Ill. App. 3d 1020, 407 N.E.2d 832) or encourage a defense counsel to render deliberately ineffective counsel to provide a second shot for his clients. We see neither invention nor pretended ineffectiveness in this case. We wish to do nothing to relieve a defense counsel of his duty to bring to the trial court’s attention any possible conflict at the earliest rather than latest moment. As we have said before, “[t]he primary responsibility rests on defense counsel to take care not to accept or continue the representation of two or more co-defendants unless it is clear that there exists no potential conflicts of interest. [Citations.]” People v. Meng (1977), 54 Ill. App. 3d 357, 365, 369 N.E.2d 549, 554.

Nevertheless, there may be those circumstances presented in a post-conviction proceeding which indicate that a conflict existed between the interests of codefendants and that defense counsel’s performance was affected by it to the detriment of one defendant. In this case, Griffin presents to the court for the first time in the post-conviction proceedings a story which divorces his interests from those of Smith. If Griffin had insisted on testifying that he tried to keep Smith from killing the girl and otherwise objected to the shootings, Goldenhersh could not have represented him at the same trial with Smith. To attempt it would have meant allowing Griffin to inculpate Smith or cross-examining Griffin in order to discredit him. The trial court clearly foresaw the problem when it advised Goldenhersh it would not permit Griffin to say “he and Jimmy Smith were in there together.”

We do not think Griffin’s assertions at the post-conviction hearing are inventions. As an admitted perjurer, he would not be easily believed if all he had to offer was his unsupported version of the pretrial events, and we would again emphasize that there is nothing in the trial record that suggests that Griffin ever told his attorney anything other than the alibi advanced at trial in his defense. Derango’s affidavit and testimony confirm Griffin’s account. Derango’s version is in turn supported by the grand jury testimony of L. C. Moore, who reported that he was in fact contacted by Derango, that he understood Griffin would supply identifications of the others involved, and that the information offered matched that already gathered by Moore. Moore testified that Griffin had orally denied responsibility for the killings but that Smith had made no statement. Moore characterized Smith as a man who “doesn’t believe in going back to jail; and if it’s his thing to kill, kill everybody, leave no witnesses.”

The transcript of the grand jury proceedings was provided to Goldenhersh on March 19, 1981, so that it was available as he considered the relative positions of his clients. It showed at least that Griffin’s original position communicated to his first attorney was inconsistent with the later alibi defense. We also note that the prosecution’s evidence tended to confirm Griffin’s original story of his presence, the late arrival of two men, one of whom was armed, and Smith’s killing of the girl.

Griffin alleges that he told Goldenhersh the same story he told Derango. Griffin states that Goldenhersh warned him that his suggested testimony would convict Smith and make Griffin fully accountable. Such legal analysis does not take into account the State’s burden of proving something more than mere presence in order to make Griffin accountable for the acts of other participants. (People v. Trapps (1974), 22 Ill. App. 3d 1029, 318 N.E.2d 108.) Having accepted the view that an attempt to exculpate himself at Smith’s expense would backfire, Griffin agreed with Smith to come up with an alibi which Griffin alone would present. The advantages to Smith are clear. He could remain silent and avoid a recitation of his criminal convictions. Griffin, who had no criminal record, could testify to the activities of two working men enjoying their simple pleasures at the time the murders were committed. While it may not be unlikely that Griffin repeated his first story, nothing in the record indicates that Goldenhersh was provided any fact inconsistent with the alibi defense.

The decision by one or more defendants to adopt an alibi defense may forestall any finding that a conflict between defendants appeared at trial. It has been held, for example, that one defendant’s alibi is not in conflict with his codefendant’s confession (People v. Madison (1980), 81 Ill. App. 3d 471, 401 N.E.2d 571), that separate alibis which do not inculpate the other defendant show no conflict (People v. Craig (1977), 47 Ill. App. 3d 242, 361 N.E.2d 736), and that there is no conflict if inconsistent versions of a shared alibi nevertheless place both defendants away from the crime scene. People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227.

Nor will conflict be found because hindsight suggests that defense counsel might have chosen a different strategy. In People v. Echols (1978), 74 Ill. 2d 319, 327-28, 385 N.E.2d 644, 648, the court refused to find a conflict where there was a “mere possibility that one strategy available to defense counsel would have helped one defendant at the expense of another. [Citations.]” In Echols the court found no hostility between the interest of the Echols brothers and codefendant Wilson simply because it was possible that independent counsel could have argued that descriptions of clothing made a substantially stronger case against the Echols brothers than against Wilson. Nor was it enough that Wilson’s counsel might have argued that Wilson was unaware that the Echols brothers had placed stolen goods in the car in which they were all arrested. See also People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840.

In some instances, however, the choice of treating codefendants differently is more than a mere possibility; it is forced on counsel by the difference in evidence offered against codefendants. For example, in People v. Echols (1978), 74 Ill. 2d 319, 385 N.E.2d 644, the State’s evidence clearly provided a stronger case against one codefendant than the others. In that case, the defense counsel’s decision to draw no distinction between his clients was found to reflect a conflict of interest. In Echols three codefendants were represented by a single public defender. During the course of the trial the State offered into evidence a fingerprint found on the door of a tavern the three were accused of burglarizing. The fingerprint was said to match a sample taken from the defendant, Kenneth Echols, but when the police officer was asked to pointed out Echols in the courtroom he pointed to the appellant Wilson. The public defender advised Wilson and Echols to refuse to be fingerprinted to resolve the confusion, although that would have determined that the fingerprint did not belong to Wilson.

In his closing argument, the defense counsel “chose to point to the ambiguity regarding the fingerprints as limiting its probative value relative to all of the defendants, rather than specifically arguing that the print probably did not belong to appellant.” (People v. Echols (1978), 74 Ill. 2d 319, 325, 385 N.E.2d 644, 647.) Advising Wilson to form a solid front with Echols in refusing to resolve the confusion masked the fact that the “appellant’s interests and those of the Echols brothers diverged dramatically. It requires no speculation to reach the conclusion that competent, independent counsel would have advised appellant to resolve that confusion, and would have argued in closing that, on balance, given all of the evidence, appellant never entered the tavern.” (People v. Echols (1978), 74 Ill. 2d 319, 328, 385 N.E.2d 644, 648.) In short, he would have taken advantage of an unforeseen confusion in the State’s case to distinguish one defendant from the others.

In the present case, Griffin and Smith presented a united front at trial. The decision that only Griffin would testify to a single alibi for himself and Smith meant that no conflict would appear in their defensive positions. When the alibi defense proved unpersuasive in the face of the State’s eyewitnesses and Walker’s dying declarations, defense counsel was left in a difficult situation. He had to counter testimony placing both of his defendants at the scene. As damaging as the State’s witnesses were, they were nevertheless inconsistent in their identification of those responsible for specific acts. Robinson, a disinterested witness, flatly and positively contradicted Kellick’s identification of Griffin. Walker’s dying declaration and Kellick’s testimony about Smith left little room for defense maneuvers on his behalf. In order to take full advantage of the inconsistencies in the identification of Griffin, Goldenhersh would have had to distinguish between the uncontradicted assertions that Smith killed the girl and shot Kellick and the uncertanties about the identity of the man in the bathroom who shot Sims and the man or men who shot Walker. As it was, he only pointed to the inconsistencies and ambiguities as matters going to the credibility of the State’s witnesses. Counsel could not give Griffin the best possible defense under the circumstances because to do so would have been disloyal to Smith, his original client. Because of this conflict of loyalties, he remained silent when independent counsel would have spoken out on Griffin’s behalf. For this reason, we find that Griffin is entitled to a new trial.

An independent basis for granting a new trial is presented in Griffin’s appeal from the denial of his motion to vacate the judgment or to order a new trial. In that motion he alleged that Kellick had perjured himself. Griffin argued that Kellick’s identification of Griffin was false and that he had admitted it to his son, Scott. Griffin also argued that Kellick’s denial of any promises or negotiations with the State’s Attorney’s office regarding the theft charges against him created the false impression that he was an unbiased witness for the State.

Griffin fails to provide the clearly convincing evidence necessary to show that Kellick’s identification testimony was perjured. (People v. Hilliard (1982), 109 Ill. App. 3d 797, 441 N.E.2d 135.) Scott Kellick is too weak a reed to provide any support for an allegation of perjury. His affidavit and testimony were discredited by his admission that he was doing both Griffin and himself a favor by signing the affidavit accusing his father of perjury. The fact that Kellick’s testimony is contradicted by that of Robinson is insufficient to prove perjury. Inconsistencies are to be resolved by the trier of fact. People v. Hoffman (1970), 45 Ill. 2d 221, 258 N.E.2d 326; People v. Bolton (1973), 10 Ill. App. 3d 902, 295 N.E.2d 11.

At trial Kellick created the impression that there was no connection between his testimony and the theft charge pending against him. He testified that he did not know that his case was scheduled for disposition after the murder trial, that he knew of no promises or negotiations concerning his case, and that he had not talked to his lawyer “about it at any time.”

At the post-trial hearing a somewhat different picture presented itself. The State’s Attorney admitted there was an understanding with Kellick’s attorney that the State wanted Kellick’s cooperation in the murder trial. The State’s Attorney wanted to elicit testimony from him and was holding off on the theft trial in order to maintain “leverage” on Kellick. No leverage would have been possible unless Kellick knew his actions were being watched. Although Kellick denies that his attorney ever told him of the understanding, the State’s Attorney had conveyed to his attorney the assurance that his cooperation would be taken into account and it seems unlikely that an attorney would have withheld information about a possible benefit his client could gain through his own action. Moreover, Kellick and his attorney had already received a special permission for Kellick to leave the State on personal business. Kellick admitted that he knew what plea bargaining was and that one did not “give anything without getting something in return.”

Kellick’s testimony was the keystone to the State’s case and his credibility was therefore an important issue. The jury was entitled to know of any understanding in order to assess his credibility. It is not only negotiated promises which may induce bias; expectations or even hopes for leniency may have their effect. (People v. Bolton (1973), 10 Ill. App. 3d 902, 295 N.E.2d 11.) It was the State’s duty to correct any false impression left by Kellick’s flat denial that he expected any consideration from the State. Griffin is therefore entitled to a new trial. Napue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173; People v. McKinney (1964), 31 Ill. 2d 246, 201 N.E.2d 431; People v. Bolton (1973), 10 Ill. App. 3d 902, 295 N.E.2d 11.

For all the reasons stated above, the judgment of the circuit court of St. Clair County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

KASSERMAN, J., concurs.

PRESIDING JUSTICE WELCH,

dissenting:

I am unpersuaded by the reasoning of the majority, especially in reference to its conclusion that petitioner Lee Otis Griffin was denied effective representation because a conflict of interest existed. The majority holds that Griffin is entitled to a new trial since his attorney, Marvin Goldenhersh, did not vigorously assert that codefendant Jimmie Lee Smith was responsible for the murders in question. The majority’s holding is not supported by the record, but is based instead on an improper reevaluation of a credibility issue already resolved below.

Griffin’s post-conviction petition alleged that he initially told attorney Goldenhersh that he was present at the scene of the crime, but took no part in the killings. In fact, he alleged that he attempted to stop Smith from committing the murders, but was unable to do so. According to Griffin, Goldenhersh told him that these facts made him guilty on a theory of accountability. Subsequently, Griffin fabricated an alibi, testifying in court that neither he nor Smith was at the scene of the crime. Therefore, petitioner alleged, by testifying to a concocted alibi as a defense, he destroyed a legitimate defense — that he did not kill the victims.

A hearing was held on the petition on October 12, 1982. At that time, the trial court stated that the petitioner was not credible because of his prior perjured testimony. The court stated that it did not know what the petitioner had told attorney Goldenhersh at the outset of the attorney-client relationship, but that there was no conflict in representation at trial in light of petitioner’s sworn testimony that he and Smith were elsewhere at the time of the killings.

In reviewing the denial of the petition, the majority chooses to accept Griffin’s version of what transpired between him and attorney Goldenhersh, noting that this version of events “*** was uncontradicted by affidavit or testimony.” (124 Ill. App. 3d at 176.) In my mind the majority simply does not come to terms with the obvious fact seen by the trial court: that petitioner was an admitted perjurer. Like the trial court, I cannot accept the petitioner’s assertion that he has now seen the light and is telling the truth. Moreover, even if petitioner gave another attorney the version of events that he now claims to be true, this in no way proves that he actually told attorney Goldenhersh the same story.

Another significant inconsistency in the majority’s reasoning exists in its evaluation of trial counsel’s defense strategy. The majority reasons that the identification of Griffin was tenuous, while testimony of Smith’s involvement “*** left little room for defense maneuvers on his behalf.” (124 Ill. App. 3d at 181.) The majority concludes that counsel could not provide Griffin with the best possible defense without incriminating Smith, his original client. Given petitioner’s sworn testimony at trial that he and Smith were not at the scene of the murders, I believe no actual conflict in representations has been demonstrated. The majority’s finding of a conflict presumes a different defense than the one advanced at trial.

The Illinois Supreme Court has stated that where codefendants are jointly represented by one attorney, an actual conflict of interest manifested at trial must be shown for denial of effective assistance of counsel to be established. (People v. Washington (1984), 101 Ill. 2d 104.) Despite the majority’s contentions to the contrary, I feel this standard has not been met. The defenses presented at trial, although perjured, were not antagonistic or inconsistent. Even the majority points out that Griffin “*** testified at trial to the alibi which he and Smith concocted to place both of them in a tavern at the time of the murders.” (124 Ill. App. 3d at 176.) Given Griffin’s testimony that he was not at the scene of the crime, I agree with the trial court’s determination that no actual conflict of interest manifested at trial was established by the petitioner. The majority’s analysis places an unfair burden on trial counsel and may even reward perjury. I would affirm the circuit court’s denial of the post-conviction petition.


author: JUSTICE LINDBERG JUSTICE LINDBERG

text:
    DONALD B. DICK, Indiv. and as Special Adm’r of the Estate of Donna S. Dick, Deceased, Plaintiff-Appellee, v. AHMET O. GURSOY, Defendant-Appellant.
    Second District
    No. 83—335
    Opinion filed May 9, 1984.
    Supplemental opinion filed on denial of rehearing July 20, 1984.

      John R. Garofalo, of Kiesler & Berman, of Chicago, for appellant.
    William D. Maddux, Brace M. Lane, and Steven K. Jambois, all of William D. Maddux & Associates, of Chicago, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

On this appeal of a medical malpractice case from the circuit court of Lake County, defendant-physician seeks reversal based upon a statute of limitations defense or, failing that, a set-off from the judgment against him in the amount of the settlement reached by his codefendants. Defendant’s failure to plead the defense prevents reversal, but we do grant the set-off.

Plaintiff’s wife, Donna S. Dick, filed this action on February 14, 1979, against five physicians and a hospital, alleging negligent misdiagnoses and treatment of her cancer. Defendant Ahmet O. Gursoy, the appellant here, was the first doctor Mrs. Dick consulted, on January 12, 1974, about a lump on her back, which he mistakenly diagnosed as a floating rib. After Mrs. Dick’s death from cancer on November 4, 1980, her husband Donald B. Dick became the party of record and amended the complaint to add wrongful death counts against each of the defendants.

When the case came to trial in January 1983, only the counts against Gursoy were tried, the other parties apparently having reached a settlement. The jury found for plaintiff on both counts and awarded $100,000 for wrongful death and $200,000 for the survival action. After judgment was entered upon the verdicts, Gursoy moved for a set-off of $260,000, the amount of the settlement. The trial court, pursuant to plaintiff’s petition, approved the settlement as being in exchange for plaintiff’s covenants not to sue regarding only the wrongful death counts against Gursoy’s codefendants. The court approved the voluntary dismissal of the survival counts against the codefendants. A set-off was granted, therefore, only with regard to the $100,000 wrongful death verdict.

Gursoy first contends that the trial court erred in denying him leave to amend his answer to include an affirmative defense based upon the statute of limitations. The record contains the following interchange between defense counsel and the trial judge:

“MR. GAROFALO: One other thing for the record. I don’t know if the Court Reporter got my motion to file this Second Affirmative Defense.
THE COURT: Right. I frankly think at this point and posture of the case it’s untimely and denied, and for a number of other reasons which I don’t want to go into at this point.”

This is the only reference in the transcript to Gursoy’s attempt to plead this defense, and the common law record does not contain the proposed amended pleading.

A trial court has broad discretion in motions to amend pleadings prior to the entry of final judgment, and the denial of a motion to amend will not be regarded as prejudicial error unless there has been a manifest abuse of such discretion. (Mundt v. Ragnar Benson, Inc. (1975), 61 Ill. 2d 151.) It has been frequently held that a trial court cannot be said to have abused that discretion where the proposed amendment has not been submitted to the court or made a part of the record. (Austin Liquor Mart, Inc. v. Department of Revenue (1972), 51 Ill. 2d 1; Tate v. Coonce (1981), 97 Ill. App. 3d 145, 421 N.E.2d 1385; Volvo of America Corp. v. Gibson (1980), 83 Ill. App. 3d 487, 404 N.E.2d 406; Ochoa v. Maloney (1979), 69 Ill. App. 3d 689, 387 N.E.2d 852.) Gursoy points to the quoted interchange as evidence in the record that the trial court knew of the existence of the motion to amend. However, the reviewing court itself is powerless to review the trial court’s exercise of discretion when the proffered amendment is not included in the record on appeal. (Lowrey v. Malkowski (1960), 20 Ill. 2d 280.) Thus, the record here does not permit our consideration of Gursoy’s first contention.

Gursoy secondly contends that the trial court erred in not granting him a directed verdict at the end of plaintiff’s case or, in the alternative, a judgment notwithstanding the verdict. He bases this contention on the assertion that his statute of limitations defense was conclusively proven at trial. However, as we just discussed, Gursoy was unsuccessful in his attempt to amend his answer to include this affirmative defense. The Code of Civil Procedure requires that affirmative defenses be plainly set forth in the answer or reply. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 613(d), formerly codified as par. 43(4).) It is well established that a defense not properly pleaded is deemed waived even though it may appear to be within the evidence. (Culligan Rock River Water Conditioning Co. v. Gearhart (1982), 111 Ill. App. 3d 254, 443 N.E.2d 1065; M. Loeb Corp. v. Brychek (1981), 98 Ill. App. 3d 1122, 424 N.E.2d 1193.) Although some exceptions to this rule exist (see Tarzian v. West Bend Mutual Fire Insurance Co. (1966), 74 Ill. App. 2d 314, 221 N.E.2d 293, where the defense is introduced by the defendant’s adversary and the defendant prior to trial did not have the information enabling him to plead the defense; Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223, where the defense is raised in a motion for summary judgment), no applicable exception has been suggested here. Since we must affirm the trial court’s denial of Gursoy’s motion to amend the answer, we hold that Gursoy was not entitled to a judgment based upon the unpleaded defense, whether or not it was proven. See M. Loeb Corp. v. Brychek (1981), 98 Ill. App. 3d 1122, 424 N.E.2d 1193.

Gursoy’s final contention is that the trial court erred in denying his motion for a $260,000 set-off against plaintiff’s total recovery on both counts. Plaintiff received $260,000 from the settling defendants. Instead of granting a set-off in that amount against the entire $300,000 judgment against defendant, the trial court awarded a set-off to Gursoy only with regard to the $100,000 wrongful death count, leaving him fully liable for the $200,000 survival action verdict.

The first indication in the record that any settlement had been reached appeared on January 20, 1983, when plaintiff petitioned the court to find that $150,000 was a fair, reasonable and proper settlement of the case against defendant Cesar Maniquis only. The petition made no distinction between the wrongful death and survival counts. No action was taken by the trial court on the petition prior to trial. On January 24, 1983, defendant Silverio Agujar was granted summary judgment. On that same date, trial began, but only on plaintiff’s counts against Gursoy.

On February 7, 1983, after judgment on the jury verdicts had been rendered, Gursoy made his motion for a set-off of $260,000. A memorandum in support of that motion asserted that $260,000 was the total amount of a settlement reached between plaintiff and Gursoy’s remaining codefendants on the day the trial began and that the settling parties had entered covenants not to sue for all claims of plaintiff against Condell Memorial Hospital, Maniquis, Edward D. Hobart, and Arcadio F. Ortis.

On March 16, 1983, plaintiff petitioned the court to find the settlements with Maniquis ($150,000), Hobart ($100,000), and Condell Memorial Hospital ($10,000) to be fair, reasonable and proper. This petition indicated specifically that the monetary settlements came in exchange for covenants not to sue with regard to the wrongful death counts. Plaintiff also sought authorization to voluntarily dismiss the survival counts. The same day this petition was filed, the trial court entered an order denying the motion for set-off, dismissing the cause against all of Gursoy’s codefendants, and including the following finding:

“The Court specifically finds that counsel for defendant GURSOY was present during the discussion of the allocation of settlement proceeds from the foregoing defendants prior to commencement of trial against defendant GURSOY only.”

In a separate order, the trial court approved the settlements pursuant to plaintiff’s petition.

On March 23, 1983, pursuant to a motion by Gursoy, the trial court amended its order denying the set-off motion. This amended order added findings that “the total covenants not sue [sic] prior to trial amounted to $260,000 without specific allocation to any particular count of plaintiff’s complaint,” and that the covenants not to sue which do distinguish between the counts were entered “subsequent to the Trial of this cause.”

The parties dispute whether the settlement accepted by the trial court was a “post facto allocation of damages” resulting in a double recovery for plaintiff or a pretrial arrangement which was not “memorialized” until after trial. The record does not contain the actual covenants. Based upon the documents in the record, including the findings of the trial court, we must conclude that, while some sort of tentative settlement was reached prior to trial, that pretrial arrangement was not final and did not differentiate between the wrongful death and the survival counts. The jury verdicts were in before the settling parties gave any indication that their money figures were meant to apply only toward the wrongful death claims.

It is well settled that settlement amounts paid by less than all tortfeasors in return for a covenant not to sue must be set off against any judgment incurred by the other tortfeasors. (Popovich v. Ram Pipe & Supply Co. (1980), 82 Ill. 2d 203, 209; Hayes v. Abernathy Taxi Association, Inc. (1972), 8 Ill. App. 3d 367, 368, 290 N.E.2d 289, 290.) Plaintiff does not dispute this rule, but rather argues that only the wrongful death verdict should be set off because his settlement related only to the wrongful death counts against the settling defendants.

Two policies should have prevented the trial court from accepting the post-trial version of the settlement. First, Illinois has a policy of protecting the financial interest of nonsettling parties in a settlement. (Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 224.) By permitting the settling parties to stand by while waiting for the jury verdicts to come in before designating what counts the settlement pertained to, the trial court unfairly increased Gursoy’s financial burden by making him alone responsible for the survival action.

Second, Illinois has a policy against double recovery by tort plaintiffs. (Popovich v. Ram Pipe & Supply Co. (1980), 82 Ill. 2d 203, 208.) In Popovich, our supreme court refused to give effect to a settlement agreement to the extent that that agreement would have allowed double recovery. (82 Ill. 2d 203, 209.) Here, the jury was instructed to determine plaintiff’s damages with regard to both the wrongful death and the survival action. The settlement approved by the trial court gave plaintiff a total of $460,000, $160,000 more than the total damages determined by the jury.

In light of these policies, the trial court should have granted Gursoy’s motion for set-off. Pursuant to our authority under Supreme Court Rule 366(a) (87 Ill. 2d R. 366(a)), we now grant that motion, find that defendant Gursoy is entitled to a set-off of $260,000 from the jury verdicts of January 28, 1983, totaling $300,000 and so order.

In all other respects, the judgment of the circuit court of Lake County is affirmed.

Affirmed in part, reversed in part, and modified.

HOPF and NASH, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff seeks a rehearing on the set-off issue. His petition for rehearing relies upon McDaniel v. Hoge (1983), 120 Ill. App. 3d 913, 458 N.E.2d 1063, for the proposition that, in the absence of a designation by the parties to the settlement agreement, the decision as to which of several claims a settlement award should be attributed to is a decision best left to the discretion of the trial court. McDaniel, in turn, relied upon Gramse v. Royal Crest Enterprises, Inc. (1981), 100 Ill. App. 3d 100, 426 N.E.2d 614.

The facts of McDaniel and Gramse are very similar. In each, a settlement was reached and approved prior to any jury verdict (at the close of the plaintiff’s case-in-chief in McDaniel; before trial in Gramse). A third party attempted to attach a workmen’s compensation lien to the settlement proceeds. The settlement did not specify which of the counts it was meant to satisfy, but did specifically exclude the workmen’s compensation lien from its coverage. The trial court found that the settlement was meant to satisfy only those counts whose theory of recovery (Public Utility Act in McDaniel; Structural Work Act in Gramse) would not be subject to workers’ compensation liens. Those counts based on theories subject to lien attachment (wrongful death in McDaniel; Survivor’s Act in Gramse) were found to be excluded from the settlement. In each case, the appellate court affirmed, deferring to the trial court’s discretion.

These cases do not control the present one. First, the trial courts in McDaniel and Gramse had some indication of the settling parties’ intent upon which to base their exercise of discretion: the settlements’ specific exclusion of the workers’ compensation liens. Here, the trial court found that there was no allocation of the settlement to particular counts until after the trial. Second, McDaniel and Gramse involved settlements completely resolved prior to a trial verdict. Thus, the two policies we relied upon to reverse the trial court here were not at issue in McDaniel and Gramse. The trial courts were not unfair to a nonsettling defendant, as the trial court here was, by permitting the settling defendants to stand by and await the outcome of the trial against their codefendants before indicating the full details of their settlement. Double recovery was not evident in McDaniel and Gramse because there was no jury verdict measuring full damages to which the total recovery by the plaintiff could be compared.

In denying plaintiff’s petition for rehearing, we adhere to our original opinion.

NASH and HOPF, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID V. SWAFFORD, Defendant-Appellant.
    Second District
    No. 83—510
    Opinion filed May 17, 1984.
    G. Joseph Weller and John R. Wimmer, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Eugene L. Stockton, State’s Attorney, of Mt. Carroll (Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

After a bench trial, the defendant, David Swafford, was convicted of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2(a)) and was sentenced to a 25-year term of imprisonment. On appeal, the defendant contends that his statutory right to a speedy trial (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(a)) was violated because he was not tried within 120 days from the date he was taken into custody for the instant offense.

On June 24, 1982, a warrant was issued in Lee County, Illinois, for the arrest of the defendant for armed robbery. A complaint, which was filed the next day, charged Swafford with committing an armed robbery in Dixon, Illinois. The arrest warrant was filed in Lee County on June 29, 1982. The “Return of Service” portion of the warrant stated that Detective Robert Short had executed the warrant by arresting the defendant.

The Dixon police department received a telephone call on June 23 or 24, 1982, from the sheriff’s department in Iroquois County, Illinois, conveying the message that the defendant had been arrested for burglary and was being held in custody in that county. Detective Robert Short of the Dixon police department informed the Iroquois sheriff’s department of the existing Lee County arrest warrant and advised the sheriff’s department that the Dixon police were placing the warrant against Swafford as a detainer. Short and Detective Kavanaugh traveled to Iroquois County several days later and informed Swafford that he was under arrest.

On July 13, 1982, Iroquois County voluntarily relinquished custody of the defendant to Lee County. On the following day, the sheriff of Lee County produced the defendant in open court in the present case. Swafford was given a copy of the complaint and was advised of the nature of the charge, the possible penalties, and his constitutional rights. The court also appointed the public defender to represent the defendant and then set bond. The cause was continued to July 19, 1982, for a preliminary hearing, and Swafford was remanded to the custody of the sheriff of Lee County.

The defendant appeared in court as scheduled on July 19. The court conducted the preliminary hearing and made a finding of probable cause. The cause was continued to July 26, 1982, for arraignment, and the defendant was remanded. The State filed the information two days after the preliminary hearing, on July 21.

On July 20, 1982, the defendant filed a motion for discovery. Six days later, on July 26, the court conducted the arraignment. The defendant entered a plea of not guilty and requested a jury trial; the court continued the matter until August 9, 1982. During the interim, the State filed its own motion for discovery and its answer to the defendant’s earlier discovery motion. On August 9, the cause was continued again, until August 20, 1982. On August 16, the defendant filed an answer to the State’s motion for discovery.

On August 11, 1982, the defendant was returned to the custody of Iroquois County. The burglary prosecution in Iroquois County was concluded on November 22, 1982, when Swafford was sentenced to a six-year term of imprisonment as a result of his burglary conviction.

No further action was taken in the present case until December 16, 1982, when the court, in response to the State’s petition, issued a writ of habeas corpus ad prosequendum, which directed the warden of the Pontiac Correctional Center to produce the defendant for a hearing on December 21, 1982. Swafford appeared in court on that date pursuant to the writ, and the court continued the cause to March 21,1983, for a jury trial.

On May 18, 1983, the defendant filed a pro se motion to dismiss the cause for -violation of his statutory right to a speedy trial under section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(a)). The motion to dismiss was presented and heard three days later, after the defendant: (1) appeared in court pursuant to a second writ of habeas corpus ad prosequendum, which the trial court issued as a result of the State’s petition, and (2) waived his right to a jury trial.

After hearing arguments relative to the motion to dismiss, the court denied the defendant’s motion, ruling that the speedy-trial term had not begun to run until the proceedings in Iroquois County were terminated on November 22, 1982, and that less than 120 days had passed since then.

That same day the cause proceeded to a bench trial based upon stipulated evidence. Based on the facts to which the parties had stipulated, the court found the defendant guilty of armed robbery and entered judgment on that finding. After holding the requisite sentencing hearing on May 26, 1983, the court below sentenced the defendant to a 25-year term of imprisonment.

The defendant filed a post-trial motion that same day in which he alleged, among other matters, that the trial court erred in denying his motion to dismiss the cause for a violation of his statutory right to a speedy trial; the trial court denied this post-trial motion. Thereafter, the defendant filed a timely notice of appeal.

The single issue before this court revolves around the question of when is a defendant deemed to be in custody for purposes of the commencement of the 120-day speedy-trial term (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(a)) in circumstances where he faces charges which are pending simultaneously in two Illinois counties.

Relying primarily upon People v. Mikrut (1969), 117 Ill. App. 2d 444, and the plain language of section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103— 5(a)), the defendant contends that he was in the custody of Lee County on July 13, 1982, when Iroquois County voluntarily relinquished him to Lee County. Pointing out that more than 250 days elapsed from July 13 to the defendant’s trial on March 21, 1983, Swafford concludes that his motion to dismiss this cause should have been granted because his trial in Lee County did not commence within 120 days of the date he was taken into custody, in violation of the express provisions of section 103 — 5(a).

The State ripostes that the 120-day speedy-trial term did not begin to run until the judicial proceedings were terminated in Iroquois County on November 22, 1982, which was less than 120 days before the defendant’s trial in Lee County on March 21, 1983. Inherent in the People’s position is its belief that the defendant was not in the “custody” of Lee County, as that term is used in section 103 — 5(a), prior to the time the judicial proceedings closed in Iroquois County.

Section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(a)) provides, in relevant part, that:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.”

It is manifest that the 120-day period set forth in section 103 — 5(a) begins to run on the date the defendant is taken “into custody” for the offense for which discharge is sought. (People v. Davis (1983), 97 Ill. 2d 1, 11; People v. Woodruff (1981), 88 Ill. 2d 10, 14-15.) In addition, section 103 — 5(d) of the Code prescribes that every defendant not tried within the 120-day rule of section 103 — 5(a) “shall be discharged from custody.” Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(d); People v. Fosdick (1967), 36 Ill. 2d 524, 526.

In People v. Davis (1983), 97 Ill. 2d 1, our supreme court recently addressed the same issue which is presently before this court in circumstances which we find indistinguishable from the facts of the current case. In Davis, the defendant was in custody in St. Clair County jail awaiting trial and sentencing relative to pending murder charges. Pursuant to a writ of habeas corpus ad prosequendum, the sheriff of that county delivered the defendant to Madison County, where the accused was served with an arrest warrant for an unrelated offense. That same day he was arraigned; a preliminary hearing was held; an attorney was appointed to represent him; the defendant filed a demand for a speedy trial; and the trial date was established. The defendant was then returned to St. Clair County, where he remained, except for a brief reappearance in Madison County, until the proceedings were concluded in St. Clair County. After the termination of the case in St. Clair County, the defendant was returned to Madison County, pursuant to a writ of habeas cor pus ad prosequendum, for trial there. The defendant in Davis argued that he was in custody in Madison County from the time he was brought there on a writ of habeas corpus ad prosequendum and served with an arrest warrant for the Madison County charge. The State maintained that the defendant was not in custody with respect to the Madison County offense until the proceedings in St. Clair County were concluded.

The court in Davis determined that the defendant was not in custody for the Madison County offense until the proceedings against him in St. Clair County had been terminated. (97 Ill. 2d 1, 14.) In reaching its result, the court recognized that there was a vast body of decisions from the appellate court which had concluded that where a defendant is in custody awaiting trial in one county and has a charge pending against him in a second county, the accused cannot be deemed to be in custody for the latter offense until the proceedings against that person in the first county are terminated and he or she is then returned to, or held in custody for, the second county (People v. Hatch (1982), 110 Ill. App. 3d 531, 534; People v. Wentlent (1982), 109 Ill. App. 3d 291, 297; People v. Gardner (1982), 105 Ill. App. 3d 103, 109-12; People v. Evans (1979), 75 Ill. App. 3d 949, 952; People v. Kerley (1979), 72 Ill. App. 3d 916, 918; People v. Karr (1979), 68 Ill. App. 3d 1040, 1047; People v. Clark (1968), 104 Ill. App. 2d 12, 20). (People v. Davis (1983), 97 Ill. 2d 1, 13; see also People v. Holman (1983), 115 Ill. App. 3d 60, 63.) The supreme court also emphasized that this precept obtains even in situations where, as in the case now before this court, the defendant was brought temporarily before the court in the second county and then was returned to the first county for further proceedings. People v. Davis (1983), 97 Ill. 2d 1, 13; accord, People v. Holman (1983), 115 Ill. App. 3d 60, 63; People v. Hatch (1982), 110 Ill. App. 3d 531, 534; People v. Wentlent (1982), 109 Ill. App. 3d 291, 297; People v. Gardner (1982), 105 Ill. App. 3d 103, Ill.

The supreme court in Davis agreed with the holdings of the appellate court cases cited in the preceding paragraph and adopted the following rationale from one of them in support of its conclusion that the speedy-trial provisions of section 103 — 5(a) began to run from the time the proceedings were terminated in St. Clair County:

“ ‘Any other construction would embarrass and harass the effective administration of criminal justice and would tend to favor an accused who is in custody of one county for a crime, but has formal charges pending against him, for which hold or detainer orders have been placed in several counties. Such an absurd result could not have been intended by the legislature when section 103 — 5(a) was enacted. Further, it would seem that if one county is to be allowed 120 days in which to prosecute an accused who is in custody for an alleged offense, another county should have an equal amount of time, notwithstanding that its charge against the same accused has been concurrently pending while the case in the first county was being disposed of.’ ” (People v. Davis (1983), 97 Ill. 2d 1, 13-14, quoting People v. Clark (1968), 104 Ill. App. 2d 12, 20; see People v. Hatch (1982), 110 Ill. App. 3d 531, 536; People v. Karr (1979), 68 Ill. App. 3d 1040, 1047.)

The Davis court also noted that it would be anomalous to require that separate charges in different counties must all proceed to trial within 120 days in light of the fact that, where a defendant is in custody relative to more than one charge in the same county, the State is provided additional time in which to proceed with the prosecutions (see Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(e)). People v. Davis (1983), 97 Ill. 2d 1, 13; accord, People v. Hatch (1982), 110 Ill. App. 3d 531, 536.

Although he recognizes the rule of law set forth in People v. Davis (1983), 97 Ill. 2d 1, as first enunciated in the appellate decisions upon which the Davis case relied, the defendant attempts to distinguish Davis and a number of other opinions on the ground that there, unlike here, the defendants were transferred from the first county to the second county pursuant to a writ of habeas corpus ad prosequendum, a procedure which, the defendant asserts, recognizes that custody remains in the first county (cf. People ex rel. Lucey v. Kersten (1915), 269 Ill. 597, 601 (a writ of habeas corpus ad testificandum does not have the effect of taking the prisoner out of the custody of the officer or institution which has charge of him)). As a consequence, the defendant concludes that because Iroquois County relinquished custody of him to Lee County on July 13, 1982, on a voluntary basis rather than pursuant to a writ of habeas corpus ad prosequendum, Iroquois County lost custody to Lee County at that time; hence, the defendant argues, the speedy-trial term began to run in Lee County at the time of the voluntary transfer of custody.

In addressing the defendant’s contention, we point out first, that neither People v. Davis (1983), 97 Ill. 2d 1, nor the relevant appellate opinions (e.g., People v. Holman (1983), 115 Ill. App. 3d 60; People v. Hatch (1982), 110 Ill. App. 3d 531; People v. Gardner (1982), 105 Ill. App. 3d 103) expressly limited their rationale or decisions to circumstances where the transfer from the first county to the second one was accomplished pursuant to a writ of habeas corpus ad prosequendum. Although writs of habeas corpus ad prosequendum were employed in those cases, the courts’ analyses and results were not grounded in any significant way upon the procedure that was utilized to bring the defendants temporarily from the first to the second county.

Secondly, we agree with the State that to adopt the position which the defendant advances here would exalt form over substance. In the present case, the prosecutor stated, during argument relative to the defendant’s motion to dismiss the cause for violation of his statutory right to be tried within 120 days, that Iroquois County voluntarily relinquished custody of the defendant to Lee County on July 13, 1982, so that Lee County could begin criminal proceedings against the defendant; that those preliminary procedures were concluded on August 11, 1982; that Iroquois County was notified that Lee County had arraigned the defendant and that a trial date would be set in the future; and that Iroquois County then took physical custody of the defendant again. In effect, the procedure which Lee County employed in this case is similar in substance to that which the noncustodial counties utilized in those cases involving the use of writs of habeas corpus ad prosequendum. Here, as occurred in the cases cited in the previous paragraph, the custodial county relinquished control over the defendant temporarily so that Lee County could initiate the preliminary steps in its criminal proceedings against the defendant. (See People v. Hatch (1982), 110 Ill. App. 3d 531, 536.) However, because Iroquois County’s interest in prosecuting the defendant first was paramount (cf. People v. Kerley (1979), 72 Ill. App. 3d 916, 918, and People v. Clark (1968), 104 Ill. App. 2d 12, 22 (second county could not require first county to relinquish the defendant to stand trial in second county because first county’s case was still pending)), the defendant was returned to that county. Given these circumstances, the defendant’s attempt to distinguish Davis and the appellate cases upon which it relied must fail. Thus, the 120-day speedy-trial term did not begin to run in Lee County until Iroquois County terminated its criminal proceedings against the defendant on November 22, 1982. See, e.g., People v. Davis (1983), 97 Ill. 2d 1; People v. Holman (1983), 115 Ill. App. 3d 60; People v. Hatch (1982), 110 Ill. App. 3d 531; Peopel v. Gardner (1982), 105 Ill. App. 3d 103.

The defendant also argues that the present case falls within the ambit of People v. Mikrut (1969), 117 Ill. App. 2d 444. The narrow issue framed in Mikrut was whether the 120-day term commenced when the complaint and warrant were lodged in the first county, or whether the statutory term started when the defendant was brought to the second county and served with the indictment. (117 Ill. App. 2d 444, 446.) The court determined that the 120-day term began to run when the defendant was taken from the first to the second county. Mikrut stands for the proposition that the lodging of a detainer with the first county does not cause the speedy-trial term to commence in the second county. (See People v. Kerley (1979), 72 Ill. App. 3d 916, 918.) Mikrut did not adjudicate the issue which is presently before this court — whether the speedy-trial term began at the time the defendant was brought temporarily into the second county, or whether it commenced only after the judicial proceedings in the first county had terminated.

Parenthetically, we also note that People v. Fosdick (1967), 36 Ill. 2d 524, upon which the defendant places partial reliance, is inapposite here. See, e.g., People v. Davis (1983), 97 Ill. 2d 1, 11-13; People v. Hatch (1982), 110 Ill. App. 3d 531, 535; People v. Gardner (1982), 105 Ill. App. 3d 103, 109-10; People v. Clark (1968), 104 Ill. App. 2d 12, 20-21.

In summary, it is clear that, with respect to the 120-day speedy-trial provision of section 103 — 5(a) of the Code, the defendant was taken “into custody” in Lee County on November 22, 1982, after Iroquois County had concluded its judicial proceedings against him. (See People v. Davis (1983), 97 Ill. 2d 1, 13-14; People v. Holman (1983), 115 Ill. App. 3d 60, 63-64; People v. Hatch (1982), 110 Ill. App. 3d 531, 534-36; People v. Gardner (1982), 105 Ill. App. 3d 103, 110-12; People v. Kerley (1979), 72 Ill. App. 3d 916, 917-19; People v. Karr (1979), 68 Ill. App. 3d 1040, 1046-47; People v. Clark (1968), 104 Ill. App. 2d 12, 19-22.) Because less than 120 days expired between the date the speedy-trial term commenced (November 22) and the eventual date of the defendant’s trial (March 21, 1983), the defendant’s statutory right to a speedy trial under section 103 — 5(a) was not violated.

The judgment of the trial court is affirmed.

Affirmed.

NASH and UNYERZAGT, JJ., concur.