text:
    FREDERICK TORRIJAS et al., Plaintiffs-Appellees, v. MIDWEST STEEL ERECTION COMPANY, INC., et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 83—2886, 83—2887 cons.
    Opinion filed December 21, 1984.
    Rehearing denied March 6, 1985.

      James T. Ferrini, Stephen D. Marcus, Henry R. Daar, and Lisa Marco Kouba, all of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago, for appellant Figg & Muller Engineers, Inc.
    French, Rogers, Kezelis & Kominiarek, of Chicago, for appellant Superior Construction Company.
    Haskell & Perrin, of Chicago, for appellant Thatcher Engineering.
    Wildman, Harrold, Allen & Dixon, of Chicago, for appellant Midwest Steel Erection Co., Inc.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellant Chicago Contractors Supply, Inc.
    Cassidy, Schade & Gloor, of Chicago, and Edward N. Kalamaros & Associates, of South Bend, Indiana, for appellants Dyer Construction Company and Lyles & Sons Excavating & Sales, Inc.
    Shepp, Heilman & Ordower, of Chicago, and Spangler, Jennings, Spangler & Dougherty, of Merrillville, Indiana, for appellant Anthes Industries.

      Leonard M. Ring and Leslie J. Rosen, both of Leonard M. Ring & Associates, Jay A. Baier, Ltd., Bell, Boyd & Lloyd, Cogían, Joyce, Nellis & Kelly, Corboy & Demetrio, John D. Hayes & Associates, Ltd., Karr & Valenti, Ltd., John G. Phillips, Ltd., and Joseph A. Rosin & Associates, Ltd., all of Chicago, for appellees.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Defendants in the 16 cases hereinafter set forth appeal from the denial of their consolidated motions to dismiss the respective actions brought against them, which motions are based on the doctrine of forum non conveniens. On appeal, the issue is whether the trial court erred in denying the motions to dismiss. We reverse the trial court’s order denying the motions as hereinafter set forth.

These lawsuits arise out of the collapse on April 15, 1982, of a portion of a highway ramp and extension bridge under construction in East Chicago, Indiana. Sixteen actions were brought in the circuit court of Cook County against some or all of the seven defendants to recover damages for injuries suffered by the plaintiffs or for the deaths of the decedents of some of the plaintiffs.

The 16 cases involved herein are: No. 82—L—7718, Frederick D. Torrijas v. Midwest Steel Erection Co., Inc., et al.; No. 82—L—8251, Linda K. Bricker v. Midwest Steel Erection Co., Inc., et al.; No. 82— L—8892, William and Brenda Newman v. Midwest Steel Erection Co., Inc., et al.; No. 82—L—9497, James and Jacqueline Brannock v. Anthes Industries, Inc., et al.; No. 82—L—9584, Dorothy Whitehead et al. v. Figg & Muller Engineers, Inc., et al.; No. 82—L—10412, Harold R. Warren v. Anthes Industries, Ltd., et al.; No. 82—L—11191, Betty Elkins v. Anthes Industries, Inc., et al.; No. 82—L—11363, Carolyn K. Pegg v. Anthes Industries, Inc., et al.; No. 82—L—11484, Edith Chester v. Anthes Industries, Inc., et al.; No. 82—L—11927, Donald and Colleen Hanft v. Anthes Industries, Inc., et al.; No. 82—L—12007, Mark and Shelley Mays v. Anthes Industries, Inc., et al.; No. 82—L— 12066, Charles and Elizabeth Calhoun v. Anthes Industries, Inc., et al.; No. 82—L—12119, M. Louis and Willette Cloutier v. Anthes Industries, Inc., et al.; No. 82—L—13774, Kevin and Stacy Riley v. Anthes Industries, Inc., et al.; No. 82—L—14170, Patricia O’Connor v. Anthes Industries, Inc., et al.; No. 82—L—19124, David S. and Eileen M. Nelson v. Anthes Industries, Inc., et al.

These lawsuits were consolidated for the purpose of the disposition of the several defendants’ motions to dismiss based on the doctrine of forum non conveniens. The trial court denied the motions giving no reasons for its ruling. Thereafter, this court granted defendants leave to appeal the trial court’s denial of the motions pursuant to Supreme Court Rule 306 (87 Ill. 2d R. 306).

Plaintiffs allege that Anthes Industries, Ltd., a Canadian corporation, and Chicago Contractors Supply Company, an Illinois corporation, designed and supplied defective steel scaffolding to Superior Construction Company, Inc. (Superior). Superior, an Indiana corporation, was the general contractor on the project and the employer of several of the plaintiffs or their decedents. Figg & Muller Engineers, Inc., a Florida corporation doing business in Illinois, subcontracted with Superior for the redesign of certain portions of the ramp. Midwest Construction Company, Inc., an Illinois corporation, also subcontracted with Superior for a portion of the construction of the ramp. Thatcher Engineering Corporation, an Indiana corporation conducting business in Illinois, supplied the tools and some manpower for the project. Lastly, Dyer Construction Company, an Indiana corporation doing business in Illinois, performed excavation work prior to the laying of the foundation for the ramp.

The plaintiffs involved in this litigation are residents of Indiana, with the exception of one plaintiff who is a resident of Missouri. All of the lay and medical witnesses to the occurrence reside in Indiana. The only connections with Illinois are: five of the defendants are either incorporated in or doing business in the State, physicians treating five of the plaintiffs are located in Illinois, plaintiffs’ lawyers’ offices are in Illinois, and several expert witnesses reside there.

Opinion

The issue presented for our consideration is whether the trial court abused its discretion in denying defendants’ motion to dismiss based on the doctrine of forum non conveniens.

The trial court has broad discretion in deciding whether a case should be dismissed based upon forum non conveniens. (Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 81-83, 457 N.E.2d 417.) On review, the only consideration is whether the trial court’s decision constituted an abuse of discretion and not whether the reviewing court would have resolved the issue in the same manner as the trial court. 99 Ill. 2d 73, 83, 457 N.E.2d 417.

The doctrine of forum non conveniens assumes the existence of at least two forums in which the controversy may be litigated. (Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 76, 457 N.E.2d 417; Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 371, 444 N.E.2d 157.) The application of this doctrine, therefore, focuses on the relative convenience of the available forums. Foster v. Chicago & North Western Transportation Co. (1984), 102 Ill. 2d 376, 382, 466 N.E.2d 198; Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514, 301 N.E.2d 729, cert. denied (1976), 424 U.S. 943, 47 L. Ed. 2d 349, 96 S. Ct. 1411.

In Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839, the United States Supreme Court enunciated the relevant interests, both private and public, which must be balanced in determining the most convenient forum. The private interest factors include the ease of access to sources of proof, the availability of compulsory process to secure the attendance of unwilling witnesses, the cost of obtaining the attendance of willing witnesses, the possibility of a view of the site of the occurrence, and the convenience of the parties. Factors of public interest requiring consideration are the imposition of jury service on the residents of the community, the congestion of the court dockets, the need to apply the law of a foreign jurisdiction, and the interest in having local controversies decided at home. (Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843; see, e.g., Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 301 N.E.2d 729, cert. denied (1976), 424 U.S. 943, 47 L. Ed. 2d 349, 96 S. Ct. 1411.) After balancing these factors, the court may decline to exercise jurisdiction when it finds that the litigation may be conducted more conveniently in another forum. (Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 76, 457 N.E.2d 417; Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 364-65, 456 N.E.2d 98.) The Illinois Supreme Court has recognized that unless these factors weigh heavily in favor of the defendant, the plaintiff’s choice of forum should not be disturbed. Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 119, 427 N.E.2d 111.

In support of their motion to dismiss, defendants contend that all of the relevant contacts with this litigation are located in Indiana. Defendants argue that Indiana is the site of the occurrence, the residence of the occurrence and immediate post-occurrence witnesses, the residence of all but one of the plaintiffs, none of whom reside in Illinois, and the location of physical evidence such as medical records and jobsite materials.

Plaintiffs argue that their choice of forum should not be disturbed. They also argue that Illinois is the residence of experts retained by both parties and of physicians who have treated or are treating five of the plaintiffs.

Although plaintiff’s choice of forum is an important factor, when the plaintiff is foreign to the chosen forum, plaintiffs choice is accorded less deference. (See Weiser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 367, 456 N.E.2d 98; Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 378, 444 N.E.2d 157.) Here, none of the plaintiffs are residents of Illinois. One plaintiff resides in Missouri, and the remaining 15 plaintiffs are Indiana residents. In these circumstances, we attach little significance to plaintiff’s choice to sue in Cook County.

The location of witnesses and the ease of access to sources of proof are important private interest factors to be considered. Plaintiffs point to the location of experts and treating physicians in Illinois as an important factual connection. We disagree. These experts were selected by the parties after the occurrence. If an expert’s residence is allowed to control, plaintiffs could easily circumvent the doctrine by selecting experts who reside in the forum in which they wish to sue. (Daugherty v. Inland Tugs Co. (1976), 240 Pa. Super. 527, 359 A.2d 465; Norman v. Norfolk & Western Ry. Co. (1974), 228 Pa. Super. 319, 323 A.2d 850.) Defendants maintain that all of the occurrence and immediate post-occurrence witnesses reside in Indiana and that they are not subject to compulsory process in Illinois. Plaintiffs correctly argue that there is no reason to call some of these potential witnesses such as the Lake County coroner. Other witnesses, however, for example on-site resident engineers employed by the State of Indiana, will likely be called to testify. Although these witnesses could be deposed, deposition testimony is not viewed as a satisfactory alternative to live testimony. (Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 374, 444 N.E.2d 157.) Because physical evidence, specifically medical records and materials removed from the site, is stored in various cities in Indiana, Cook County would not provide the forum with the easiest access to these sources of proof. Thus, Indiana would be the more convenient forum for obtaining the attendance of witnesses and access to necessary physical evidence.

We note that two of the defendants are incorporated in Illinois and that several of the defendants do business in the State. Because it is assumed that both courts have jurisdiction over the defendant, the fact that a defendant does business in the State is not dispositive when considering a motion to dismiss on the basis of forum non conveniens. (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 515, 301 N.E.2d 729, cert. denied (1976), 424 U.S. 943, 47 L. Ed. 2d 349, 96 S. Ct. 1411; see also Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 79, 457 N.E.2d 417.) Similarly, we attach no particular importance to the location of plaintiffs’ counsel in Illinois. Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 509, 91 L. Ed. 1055, 1063, 67 S. Ct. 839, 843; Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 368, 456 N.E.2d 98.

The feasibility of a jury view of the site of the occurrence must also be taken into account. Plaintiffs contend that because the collapsed ramp has been removed and a new ramp is operating in its place, photographs will be relied on at trial. Trial of this cause in Indiana making a jury view of the site feasible, therefore, would be of no benefit. Due to this circumstance, we agree that this factor weighs against defendants’ motion. It is, however, one of many factors to be weighed and the only private interest factor which we find balancing in plaintiffs’ favor.

The condition of the dockets of the forum court, the burden of jury duty on members of the community, the interest in having local controversies decided at home, and the need to apply the law of a foreign jurisdiction are public interests requiring review. (Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843.) The crowded condition of the dockets of the circuit court of Cook County has been recognized by our supreme court. (Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 375, 444 N.E.2d 157; see Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1, 6, 273 N.E.2d 353.) We are of the opinion that the addition of numerous lawsuits having little or no relation to Cook County constitutes an overwhelmingly heavy burden on the already overcrowded Cook County court system and on the people of this community who would be called upon to serve as jurors. Additionally, although Illinois law serves as the basis for some of plaintiffs’ allegations, Indiana law will also be applied in this litigation. The need to apply the law of a foreign jurisdiction is a significant factor favoring dismissal on the basis of forum non conveniens. (Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 80, 457 N.E.2d 417.) We find that the public interest factors weigh in defendants’ favor.

Plaintiffs cite Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 457 N.E.2d 417, in support of their argument that Cook County is the more convenient forum. Though factually similar, in Moore we find relevant connections with Cook County which are absent in the instant case. In Moore, some 50 witnesses were residents of Illinois, obviating the problem present in this case of the unavailability of compulsory process on nonresident witnesses. Further, necessary medical evidence was there located in Illinois. For these reasons, we do not find Moore controlling.

Under the facts and circumstances of this case, we are of the opinion that the relevant factors to be considered when reviewing a motion to dismiss based on forum non conveniens favor the defendant. We therefore find that the trial court abused its discretion in denying defendants’ motions to dismiss. Accordingly, we reverse the order denying the consolidated motions to dismiss the 16 actions herein and remand for further proceedings consistent with this opinion.

Since the time limitations involved in certain of these cases may have run, this disposition is conditioned on the defendants’ waiver of the statute of limitations, or similar defense, when the particular cause is transferred to another forum. (Foster v. Chicago & North Western Transportation Co. (1984), 102 Ill. 2d 378, 385, 466 N.E.2d 198.) This disposition with the foregoing condition is applicable individually and severally to each case herein. If the defendant or defendants in any case involved herein refuse to waive the limitations defense, then in such instance plaintiff shall be given leave to reinstate that particular cause in the circuit court of Cook County.

Reversed and remanded.

LORENZ and PINCHAM, JJ., concur.


source: Caselaw Access Project

author: JUSTICE PERLIN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROY FOX, Defendant-Appellant.
    First District (2nd Division)
    No. 83—2917
    Opinion filed January 29, 1985.

      Arthur J. O’Donnell and Kenneth N. Flaxman, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Frank G. Zelezinski, and Donna B. More, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

In 1980, Roy Fox was charged with rape, deviate sexual assault and armed violence. Pretrial bond was set at $10,000 and, pursuant to the “Deposit of bail security” statute (Ill. Rev. Stat. 1979, ch. 38, par. 110—7), Fox posted 10% of the bond ($1,000) to secure his release. After trial in the circuit court of Cook County, Fox was convicted of rape and deviate sexual assault. The trial court then revoked Fox’ bond, and the clerk of the court, pursuant to the statute, returned to Fox $900 (90% of the amount posted) retaining $100 (10% of the amount posted), for bond costs.

The trial court thereupon set an appeal bond in the amount of $500,000. On Fox’ motion, the appellate court reduced the appeal bond to $100,000. After six months in jail, Fox posted a bond deposit in the amount of $10,000 and was released from custody.

In March 1983, the appellate court reversed Fox’ convictions outright (No. 82—522). Fox then filed in the circuit court a motion requesting that the court order the clerk to return to Fox the entire $10,000 he had posted as an appeal bond, save for $5. The State objected, contending that pursuant to the terms of the bail security statute, Fox was entitled to a return of only 90% of the amount he posted. The trial court, indicating its interpretation of the statute to provide for return of only 90% of the amount posted, denied Fox’ motion, and ordered the clerk to return $9,000 to Fox. Fox appeals.

The current “Deposit of bail security” statute provides, in part:

“(f) When the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause, the clerk of the court shall return to the accused, unless the court orders otherwise, 90% of the sum which had been deposited and shall retain as bond costs 10% of the amount deposited. However, in no event shall the amount retained by the clerk as bail bond costs be less than $5.
At the request of the defendant the court may order such 90% of the defendant’s bail deposit, or whatever amount repayable to defendant from such deposit, to be paid to defendant’s attorney of record.” Ill. Rev. Stat. 1981, ch. 38, par. 110—7.

Both parties here apparently agree that the statutory language in the current statute “unless the court orders otherwise” vests the court with discretion to order the clerk of the court to return more than 90% of the bail deposit. We agree. As originally enacted in 1963, this statute provided that the clerk of the court “shall return to the accused 90% of the sum which had been deposited and shall retain as bail bond costs 10% of the amount deposited.” (Emphasis added.) In interpreting and construing statutes, the threshold task of the court is to examine the terms of the statute itself. (People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180.) Where the language of the statute is certain and unambiguous, the only legitimate function of the courts is to enforce the law as enacted by the legislature. (Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 256 N.E.2d 758.) We perceive no ambiguity in the statute here in issue; we believe it grants a trial court the discretionary authority to return more than 90% of a bail deposit under appropriate circumstances.

Fox invites this court to consider directly the merits of his motion for the return of his bond deposit, and to order the clerk of the court to return to him his entire bond deposit (minus the $5 the statute requires the clerk to retain). This we decline to do, since it is the province of the appellate court solely to review the trial court’s adjudication.

In the instant case, the record indicates that the trial court believed it had no discretion to entertain Fox’ request for return of more than 90% of the bail deposit. It has been held that the failure of a trial court to exercise its discretion permits remandment to allow the court to so act. See, e.g., People v. Greene (1982), 102 Ill. App. 3d 639, 430 N.E.2d 219; People v. Talley (1981), 97 Ill. App. 3d 439, 422 N.E.2d 1084.

We hold, therefore, that this case should be reversed and remanded to enable the trial court to exercise its statutory discretion with respect to Fox’ motion. We observe that pursuant to the opinion in People v. Lange (1984), 102 Ill. 2d 225, 464 N.E.2d 1071, when, as here, an accused has posted more than one bond deposit, the clerk is empowered to retain an amount for bail bond costs from the “amount deposited at the time the case was concluded.” Thus, here, it would appear that under any circumstances, Fox is entitled to a return of the full amount he posted for pretrial bond; any bond costs retained by the court clerk must be solely based on the second (appeal) bond posted by Fox.

Reversed and remanded with directions.

HARTMAN and BILANDIC, JJ., concur.


author: JUSTICE McNAMARA

text:
    CERES ILLINOIS, INC., Plaintiff-Appellant, v. ILLINOIS SCRAP PROCESSING, INC., Defendant-Appellee.
    First District (3rd Division)
    No. 84—572
    Opinion filed December 12, 1984.
    Rehearing denied March 13, 1985.

      Lord, Bissell & Brook, of Chicago (Robert J. Pugliese and Hugh C. Griffin, of counsel), for appellant.
    Michael P. Casey, of Edward R. Vrdolyak, Ltd., of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Ceres Illinois, Inc., brought this action seeking injunctive relief and money damages arising from the refusal of defendant, Illinois Scrap Processing, Inc., to vacate property used by defendant pursuant to an oral agreement. After a trial, the trial court denied the relief sought by plaintiff. The court found that there was an oral 15-year agreement between plaintiff’s predecessor and defendant, and the court further held that plaintiff was estopped from raising the Statute of Frauds as a defense. Plaintiff appeals.

The Chicago Regional Port District owns property located at the mouth of the Calumet River known as Iroquois Landing Lakefront Terminus. In 1980, plaintiff’s predecessor, International Great Lakes Shipping Company (INGLA), obtained a written license from the Port District which gave INGLA the exclusive right to use the western portion of Iroquois Landing. INGLA developed this 45-acre area as a port facility for Great Lakes and overseas. Plaintiff’s parent company, Ceres Terminals, Inc., operates the eastern half of Iroquois Landing.

Defendant operates a scrap processing facility west of Iroquois Landing and adjacent to INGLA’s facility. In early 1982, Seymour Pielet, defendant’s president, discussed with Robert Palaima, IN-GLA’s general manager, the possibility of defendant’s using 6.7 acres .of INGLA’s Iroquois Landing facility for the storage of scrap. Pielet stated that defendant would pay INGLA $42,000 per year for either 15 years or an initial five-year term with two five-year options. Both parties anticipated that written documents would be prepared by their lawyers to effectuate a final agreement.

After preliminary negotiations, INGLA and defendant sought the approval of the Port District. Attorneys for both parties exchanged drafts of agreements and learned that the Port District would require one-half of the $42,000. On June 25, 1982, defendant’s attorney sent a draft letter to Palaima suggesting that he inform the Port District of INGLA’s intent to lease 6.7 acres to defendant. The draft letter recited that the parties “have presently negotiated, a tentative sublease.” Palaima thereafter sent a letter to the Port District supporting defendant’s application for a license to use the property. On July 26, 1982, defendant’s attorney noted in his file that he told plaintiff’s attorney that the lease proposal was not binding and that he would not allow his client to be bound before being assured that the railroad would allow access to the property. On August 6, 1982, the parties presented the proposal for defendant’s use of a portion of Iroquois Landing to the Port District.

While negotiations for a written license agreement continued, Pielet asked Palaima if defendant could move scrap onto INGLA’s property because of an overflow situation. After receiving approval from superiors in Philadelphia, Palaima told Pielet that defendant could come onto INGLA’s property, pending the execution of a final agreement. Defendant agreed to pay $2,666.67 per month or $32,000 per year. That fee was derived from the present state of negotiations between INGLA, defendant, and the Port District.

On June 30, 1982, Palaima sent a letter to Pielet which confirmed the terms of the oral agreement between defendant and INGLA. The letter stated:

“As per our recent discussions and as per agreement, the following will apply to the storage of your material on approximately six acres on the western end of our Iroquois Terminal. Commencing July 1, 1982, we offer 30 days free storage. Thereafter the fee will be $2,666.67 per 30 day period or fraction thereof.
It is anticipated that prior to the end of July, the legal arrangements for your use of the above mentioned property will have been worked out among our Companies and the Chicago Regional Port District. It is understood that those arrangements and agreements, when mutually approved, will take precedence over this one.”

Palaima testified that the storage arrangement between INGLA and defendant was on an interim basis. He stated that he agreed to allow defendant onto the property as a favor to alleviate the overflow situation because of his friendship with Pielet. Palaima further testified that he did not wish to bind INGLA to any long-term arrangement until the lawyers completed the terms of the agreement dealing with easements, insurance, right to rail cars and berths, and indemnity and escalation clauses.

Pielet testified that the oral and written agreements were one and the same—that defendant would conduct a scrap operation on a portion of INGLA’s property for 15 years at a cost of $2,666.67 per month. However, Pielet also testified that he expected the lawyers to draft documents setting out the terms of the license agreement and that the June 30, 1982, letter from Palaima accurately reflected the oral agreement by which defendant moved onto INGLA’s property. Pielet further testified that the oral agreement was for an indefinite time period.

Pursuant to that oral agreement, defendant moved onto INGLA’s property in June or July 1982, and in August began paying INGLA the monthly fee. In September 1982 defendant also began paying a monthly fee to the Port District. Around that time, defendant obtained INGLA’s permission to build a foundation for a 70-ton Harris press that had been delivered to defendant in May. The concrete foundation was 30 feet long and six feet deep and took 45 days to construct. INGLA charged defendant for stevedoring and crane services used during the installation of the press. Defendant also obtained a certificate of insurance as requested by INGLA.

From the summer of 1982 to the spring of 1983, attorneys for IN-GLA, defendant and the Port District exchanged drafts of documents pertaining to defendant’s use of Iroquois Landing. On February 19, 1983, defendant and the Port District signed a license agreement that was dated September 17, 1982. This agreement recited that defendant’s right to use the real property was subject to the consent of IN-GLA. The term of the license was from November 1, 1982, to March 31, 1983, and defendant was given an option to extend it for three five-year terms, accompanied by an escalation in the license fee.

Although the attorneys for INGLA had exchanged drafts of a dock license and a consent to license between INGLA and defendant, INGLA never executed these documents. Through April 1983, defendant’s attorney continued to request INGLA to execute the consent signed by defendant in February. At the same time, defendant’s attorney still objected to insurance provisions in the dock license. Pursuant to Pielet’s request, the Port District agreed to extend a railroad spur next to defendant’s scrap operation on the Iroquois Landing Terminus and began construction. Defendant agreed to build a fence around the property, but the fence was never erected because Pielet did not wish to build a fence until all the agreements were completed.

Ceres Terminal, Inc., purchased all the stock of INGLA in April 1983 and changed the company’s name to Ceres Illinois, Inc. Plaintiff sent defendant monthly invoices for May and June 1983. Defendant’s use of the property began interfering with marine terminal operations, which had increased after plaintiff’s purchase of INGLA. Defendant’s scrap materials had encroached beyond the 6.7 acres and hindered plaintiff’s stevedoring services. Plaintiff complained that the dirt, soot and rust from defendant’s scrap operations threatened to damage food, steel and other cargo. In July 1983, plaintiff advised defendant that it wanted defendant to cease using the premises. Plaintiff then wrote two letters to Pielet demanding that defendant remove its material and vacate the premises. When defendant did not comply, this action followed.

We hold that the trial court’s finding that there was an oral 15-year agreement between plaintiff’s predecessor and defendant is contrary to the manifest weight of the evidence. It is well established that where the reduction of an agreement to writing and its formal execution is intended by the parties as a condition precedent to its completion, there can be no contract until then, even if the actual terms have been agreed upon. (S. N. Nielsen Co. v. National Heat & Power Co. (1975), 32 Ill. App. 3d 941, 337 N.E.2d 387; Brunette v. Vulcan Materials Co. (1970), 119 Ill. App. 2d 390, 256 N.E.2d 44.) In determining whether a party intended that a contract should be reduced to writing, a court can consider the following factors: whether the contract is one usually put into writing, whether there are few or many details, whether the amount involved is large or small, whether the agreement requires a formal writing for a full expression of covenants and promises, and whether negotiations themselves indicate that a written draft is contemplated as the final conclusion of negotiations. (W. T. Grant Co. v. Jaeger (1922), 224 Ill. App. 538.) Moreover, the intention of the parties to be bound contractually can be determined as a matter of law. See Terracom Development Group, Inc. v. Coleman Cable & Wire Co. (1977), 50 Ill. App. 3d 739, 365 N.E.2d 1028.

It is clear that the parties here intended that the license agreement be reduced to writing and executed before entering a 15-year contractual relationship. Defendant’s president, Pielet, stated that the lawyers would prepare written documents to formalize the agreement, which would be approved and signed by both parties. The letter sent by Palaima to Pielet on June 30, 1982, expressly stated the terms of an interim storage agreement and indicated that a mutually approved written agreement would take precedence over the present one. Pielet testified that the June 30, 1982, letter accurately reflected the parties’ agreement when defendant moved into INGLA’s facility. Pielet also testified that the oral agreement by which defendant was allowed onto INGLA’s property was for an indefinite length of time.

The memoranda and letters of defendant’s attorney further indicate that the parties did not intend to be bound contractually for 15 years when defendant moved onto INGLA’s facility in June 1982. At that time, defendant’s attorney referred to the arrangement as a “proposal” and “tentative.” A memo in June 1982 stated that the license proposal was not binding and would not be signed until the railroad access was finalized. As late as February 28, 1983, defendant’s counsel refers to “finalizing the provisions of the consent.”

The complex type of agreement contemplated between the parties as well as the negotiations demonstrate that the parties intended that the 15-year license agreement would be formalized in a written signed document before a contract existed. The terms of the license consent included provisions concerning assignability, alterations to the premises, indemnity, mechanics’ liens, access to berths and railroad spurs, and escalation clauses. The license agreement between the Port District and defendant, which was never finalized because it was subject to INGLA’s consent, also contained extensive provisions corresponding to those in the consent to license. The parties anticipated that the documents be completed before they were contractually bound. Pielet himself testified that although defendant had agreed to erect a fence around the property, it did not want to do so until an agreement was made. The fact that the parties were still negotiating the terms and license in 1983 shows that there was no fixed long-term agreement between the parties. More importantly, INGLA never executed the consent to license or the dock license which the parties intended as a condition precedent to the formation of a 15-year contract.

The evidence clearly supported plaintiff’s contention that as a matter of law there was not a 15-year license agreement between the parties. The negotiations produced no agreement; the requisite documents were neither completed nor signed. See Chicago Title & Trust Co. v. Ceco Corp. (1980), 92 Ill. App. 3d 58, 415 N.E.2d 668.

Since a 15-year oral agreement did not exist, defendant moved onto INGLA’s facility on the basis of an indefinite-term oral agreement. An agreement that does not state or contain a definite time for termination is terminable at the will of either party. (Gage v. Village of Wilmette (1924), 315 Ill. 328, 146 N.E. 325; Garber v. Harris Trust & Savings Bank (1982), 104 Ill. App. 3d 675, 432 N.E.2d 1309.) Thus, plaintiff acted within its contractual rights in terminating the oral agreement with defendant. Furthermore, the fact that defendant made certain expenditures with respect to its scrap operation in anticipation of a 15-year written agreement did not give it any additional contractual rights. See Chicago Title & Trust Co. v. Ceco Corp. (1980), 92 Ill. App. 3d 58; Culbertson v. Carruthers (1978), 66 Ill. App. 3d 47, 383 N.E.2d 618; Brunette v. Vulcan Materials Co. (1970), 119 Ill. App. 2d 390.

Although we have decided that a 15-year agreement between the parties did not exist, even if it did, such an agreement would be barred by the Statute of Frauds. The Statute of Frauds requires that any agreement that is not to be performed within the space of one year from its making shall be in writing to be enforced. (Ill. Rev. Stat. 1983, ch. 59, par. 1.) Therefore, if a 15-year agreement existed, it was unenforceable under the Statute of Frauds.

We find that there was no basis for the trial court’s holding that plaintiff was equitably estopped from asserting the Statute of Frauds as a defense. In order to invoke the doctrine of equitable estoppel, the guilty party must exhibit words or conduct amounting to a misrepresentation or concealment of a material fact. (Ozier v. Haines (1952), 411 Ill. 160, 103 N.E.2d 485.) Here, there was no misrepresentation or concealment of material facts. Both parties had access to the same information regarding the present state of contract negotiations with the Port District. If defendant relied on the oral promise of INGLA, defendant acted upon its own judgment and its own risk.

Defendant argues that INGLA and plaintiff induced it to establish a scrap processing operation at INGLA’s facility. Yet, it was defendant who persuaded INGLA to allow it onto the facility before a written agreement could be completed. Moreover, the evidence disclosed that defendant continued to seek assistance from INGLA in dealing with the Port District, although the license and consent agreements were still being negotiated. INGLA did not induce defendant to purchase the Harris press, since it had been delivered to defendant in May 1982, two or three months before it was installed at Iroquois Landing. The fact that defendant made substantial investments in setting up its operation is not any evidence of inducement by plaintiff or INGLA. A party’s decision to make expenditures and to change its position in reliance on an oral promise is an insufficient basis for equitable estoppel in the absence of fraud or misrepresentation. Sinclair v. Sullivan Chevrolet Co. (1964), 31 Ill. 2d 507, 202 N.E.2d 516; Libby-Broadway Drive-In, Inc. v. McDonald’s System, Inc. (1979), 72 Ill. App. 3d 806, 391 N.E.2d 1.

The authorities cited by defendant in which the doctrine of estoppel was applied are distinguishable in that they do not involve the Statute of Frauds or they address the issue of past performance. See Gladville v. McDole (1910), 247 Ill. 34, 93 N.E. 86; Dale v. Groebe & Co. (1981), 103 Ill. App. 3d 649, 431 N.E.2d 1107; Perlin v. Board of Education (1980), 86 Ill. App. 3d 108, 407 N.E.2d 792.

In summary, the trial court’s judgment, based on its finding of a 15-year oral agreement, is contrary to the evidence and cannot stand. And, even if such oral agreement existed, it was unenforceable under the Statute of Frauds. Further, the trial court’s holding of equitable estoppel was against the manifest weight of the evidence.

For the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with the holdings of this opinion.

Reversed and remanded.

McGILLICUDDY and WHITE, JJ., concur.


text:
    CONTINENTAL CASUALTY COMPANY, Plaintiff-Appellant, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 83—2999
    Opinion filed January 9, 1985.
    Rehearing denied March 13, 1985.

      Haskell & Perrin, of Chicago (Thomas W. Murphy, of counsel), for appellant.
    Arnstein, Gluck, Lehr, Barron & Milligan, of Chicago (Michael R. Turoff and Arthur L. Klein, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff Continental Casualty Company brought this action seeking a declaration that an excess indemnity policy of insurance issued by Continental to the Kellwood Company did not provide coverage pursuant to a vendor’s endorsement to Sears, Roebuck and Company. After Sears filed an answer and counterclaim, the trial court granted summary judgment in favor of Sears as to Continental’s complaint and as to count I of Sears’ counterclaim, which sought a finding that Sears was covered pursuant to the policy.

Sears was a purchaser of tents from Kellwood, a tent manufacturer. Kellwood obtained product liability insurance from Federal Insurance Company. That policy insured Kellwood against losses arising from accidents caused by products manufactured by Kellwood, with policy limits of $100,000 per person and $300,000 per occurrence. The policy contained a broad form vendor’s endorsement which extended coverage to Sears and made Sears, as a vendor of Kellwood, an additional insured. Kellwood purchased an excess insurance policy from Continental which included the vendor’s endorsement and provided additional coverage in the amount of $5,000,000.

Suits were brought against Sears in New York for injuries sustained by two children in a fire in a tent manufactured by Kellwood and sold by Sears. Plaintiffs sought $4,575,000 in damages, and Federal undertook Sears’ defense. Prior to trial, the New York plaintiffs offered to settle their action for $736,334. Federal offered its policy limits, and Sears called upon Continental to conclude the settlement on Sears’ behalf. Continental denied that Sears was entitied to coverage and refused to settle the matter.

The New York strict liability cases proceeded to trial against Sears on the issue whether the tent was defective because it was not fire retardant and had only one exit. Verdicts and then judgments were entered against Sears in the amount of $4,312,265.35. Continental refused to pay and brought the present action. Sears appealed the New York judgments and obtained a remittitur to $2,033,430.09. Sears paid the reduced judgments when Continental refused to do so.

Continental has relied on an exclusion to the broad form vendor’s endorsement contained within the Federal policy and specifically incorporated into the Continental policy. The exclusion states:

“The insurance with respect to the vendor does not apply to:
(b) bodily injury or property damage arising out of
(i) any physical or chemical change in the form of the product made intentionally by the vendor.”

In the trial court, Continental offered excerpts from testimony in the New York case and from depositions claiming that Kellwood could have made fire retardant tents except for Sears’ direction not to do so. Although Sears offered contrary evidence that at the time Kellwood did not know how to make an acceptable flame retardant tent, the trial court stated its belief that the tent could have been made fire retardant but that Sears directed that the tent be not so made. Nevertheless, the trial court granted summary judgment in favor of Sears.

We believe that Sears fairly states the principal issue on appeal: Whether a retailer which sold a product in the exact same condition in which it was received from the manufacturer is deprived of insurance coverage under a broad form vendor’s endorsement because the retailer specified to the manufacturer the characteristics of the product it wished to purchase? The resolution of that issue is obvious. Under such circumstances, the vendor cannot be deprived of coverage, and the trial court properly granted summary judgment in favor of Sears.

The obvious intent of the exclusion is to apply to changes made after the product leaves the manufacturer’s control. (Sears, Roebuck & Co. v. Reliance Insurance Co. (7th Cir. 1981), 654 F.2d 494.) Recently, in Sears, Roebuck & Co. v. Employers Insurance of Wausau (N.D. Ill. 1983), 585 F. Supp. 739, the United States District Court for the Northern District of Illinois considered an exclusion similar to the one before us. There, the product was an instruction manual in whose content Sears had input. In rejecting the insurance company’s claim that the exclusion applied, the court, using language dis-positive of the issue before us, stated:

“Plainly, Exclusion l(b)(i) contemplates a change by the vendor in the finished product after it has left the hands of the principal insured. Sears made no change in the condition of the finished manual purchased from Midwest and subsequently resold to the public. The manual was sold to the public in the exact same form as it was written and published by Midwest. Under the vendor’s endorsement, Sears stands in the shoes of Midwest; Sears is one of the ‘Persons Insured.’ The insured obviously can change the product before it is shipped for resale. Any ‘changes’ made to the product before it left Midwest could not be the kind of changes contemplated in Exclusion 1(b)(i).” 585 F. Supp. 739, 745.

Kellwood manufactured and sold the tent to Sears. Sears made absolutely no change in the form of the tent after it was received from Kellwood and subsequently resold to the public. Therefore, the exclusion does not apply.

We find no merit in Continental’s other contention that if Sears is entitled to judgment it must be limited to the amount for which Sears could have settled the matter prior to trial in New York. The New York plaintiffs demanded $736,334 to settle their suits. Sears advised Continental of the demand and called upon Continental to settle the matter. Federal offered its policy limits to Continental, but Continental denied that it had any obligation and expressly refused to settle the claims. Sears had no obligation to settle on Continental’s behalf, and Continental cannot now complain that Sears as its insured failed to settle the matter.

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

Judgment affirmed.

WHITE, P.J., andMcGILLICUDDY, J., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL JORDAN, Defendant-Appellant.
    First District (4th Division)
    No. 84—10
    Opinion filed January 24, 1985.
    Daniel E. Radakovich, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Mary Ellen Dienes, and Donald G. Schweihs, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court;

Defendant, Michael Jordan, was convicted of voluntary manslaughter after a bench trial, and was sentenced to a three-year term of periodic imprisonment. Defendant now appeals, contending that he was not proved guilty beyond a reasonable doubt. Defendant also contends the trial court abused its discretion by sentencing him to a term of periodic imprisonment rather than probation.

The undisputed facts are that on November 13, 1982, at approximately 2 a.m., defendant and a friend, Adrell Blakely, were at the Dating Game Lounge at 89th and Stony Island. There Blakely met the victim, Albert Loving, and Sylvester Fisher, and they three discussed a cocaine transaction. When a dispute arose as to the payment for the cocaine, the three men were told by the lounge security guard to leave. Blakely left the bar, followed by Fisher, the victim and defendant.

Defendant and Blakely testified that Fisher struck Blakely on the back of the head with a bottle as they walked out the door of the lounge, although Fisher denied this. A fight then ensued between Fisher, the victim and Blakely. As defendant yelled at the men to stop the fight, Fisher and the victim threw Blakely to the ground and began to beat him. Defendant testified that, when the victim then got on top of Blakely and began choking him, he got a one-yard-long, one-inch-thick stick resembling a walking cane from his car and struck the victim on the head with it. Blakely testified that, during the fight, the victim was choking him but then stopped, although Blakely did not know why.

Fisher testified that he was on Blakely, and, when he got off him, he turned to see defendant strike the victim on the head with the stick. The victim was knocked down by the first blow, and defendant hit the 'victim again as he tried to get up.

The security guard from the lounge testified that, as he looked out the window during the fight, he saw the victim staggering toward defendant, who was swinging a cane at the victim’s head. Defendant struck the victim with the cane as the latter continued to stagger. The security guard left to call the police, and, when he returned, he saw that the victim was lying on the ground and defendant was gone.

A deputy medical examiner testified that the victim died of severe brain injuries associated with the skull fractures he received. He opined the victim’s injuries were caused by three blows to the head.

At the close of the evidence, the trial court found defendant guilty of voluntary manslaughter. The court found that the amount of force used by defendant to defend his friend was grossly excessive.

We first address defendant’s contention that he was not proved guilty of voluntary manslaughter beyond a reasonable doubt because he was permitted to use deadly force against the victim to protect his friend, Adrell Blakely. Where the claim of self-defense or defense of another is raised by defendant, it becomes the State’s burden to prove beyond a reasonable doubt not only all the elements of the offense, but also to overcome defendant’s claim of the justifiable use of force. People v. Ross (1981), 100 Ill. App. 3d 1033, 427 N.E.2d 955; People v. Seiber (1979), 76 Ill. App. 3d 9, 394 N.E.2d 1044; People v. Hill (1977), 53 Ill. App. 3d 280, 368 N.E.2d 714; People v. Pitchford (1976), 39 Ill. App. 3d 182, 350 N.E.2d 170.

The Criminal Code of 1961 defines when the use of force against another is permitted. Section 7—1 provides:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.” Ill. Rev. Stat. 1983, ch. 38, par. 7—1.

To establish the defense of self-defense or defense of another, the defendant must show that unlawful force was threatened against a person, that the person threatened was not the aggressor, that the danger of harm was imminent, that the use of force used was necessary to avert the danger and that the amount of force was necessary. (People v. Ross (1981), 100 Ill. App. 3d 1033, 427 N.E.2d 955; People v. Lenzi (1976), 41 Ill. App. 3d 825, 355 N.E.2d 153; People v. Shields (1974), 18 Ill. App. 3d 1080, 311 N.E.2d 212.) There is a further principle involved, when, as in the instant case, the defendant uses deadly force. This principle limits the use of deadly force to those situations in which the assailant’s threatened force will cause death or great bodily harm. People v. Ross (1981), 100 Ill. App. 3d 1033, 427 N.E.2d 955; People v. Williams (1965), 56 Ill. App. 2d 159, 205 N.E.2d 749.

However, an individual may not use force in excess of that necessary to protect himself or another. It is settled that an individual commits voluntary manslaughter when he intentionally or knowingly kills another while acting under an unreasonable belief that deadly force is necessary to protect himself or another from imminent death or great bodily harm. Ill. Rev. Stat. 1983, ch. 38, par. 9—2(b); People v. DeJesus (1981), 94 Ill. App. 3d 1018, 419 N.E.2d 510.

The reasonableness of an individual’s belief that it was necessary to use deadly force to prevent death or great bodily harm raises a question of fact. (People v. Hill (1977), 53 Ill. App. 3d 280, 368 N.E.2d 714; People v. Wood (1974), 24 Ill. App. 3d 15, 320 N.E.2d 32.) The trier of fact is not required to accept as true the testimony presented by the defendant concerning his version of the incident and the necessity for self-defense. (People v. Ross (1981), 100 Ill. App. 3d 1033, 427 N.E.2d 955; People v. Seiber (1979), 76 Ill. App. 3d 9, 394 N.E.2d 1044; People v. Hill (1977), 53 Ill. App. 3d 280, 368 N.E.2d 714.) Rather, in weighing such evidence it must consider the probability or improbability of the testimony, the circumstances surrounding the killing and testimony of the witnesses. (People v. Hill (1977), 53 Ill. App. 3d 280, 368 N.E.2d 714; People v. Holtz (1974), 19 Ill. App. 3d 781, 313 N.E.2d 234.) A reviewing court will not disturb the determination of the trier of fact on a self-defense issue unless the evidence is so unsatisfactory as to justify a reasonable doubt as to guilt. People v. Ross (1981), 100 Ill. App. 3d 1033, 427 N.E.2d 955; People v. French (1972), 3 Ill. App. 3d 884, 279 N.E.2d 519.

In the instant case the decision of the court turned largely upon the credibility of the witnesses. Defendant testified that the victim was on top of his friend Blakely and was choking him at the time defendant struck him with the stick. Blakely, however, testified that he did not see defendant strike the victim. Further, Fisher stated that the victim was not on top of Blakely when defendant struck him, but, rather, was standing nearby. And the security guard from the lounge testified that the unarmed victim was staggering, head down, as defendant struck him with the cane. Consequently, the trial court could have believed that the victim was not on top of Blakely at the time he was struck. Upon consideration of this testimony, it is unlikely that defendant could have reasonably believed that deadly force was necessary.

The trial court also considered testimony by the medical examiner as to the circumstances of the victim’s death. He reported that the victim had suffered a skull fracture that extended across the skull almost completely from the right to left side, and through several of the bones of the base of the skull. He opined that it would have required a good deal of force to produce these kinds of injuries. The trial court found that, in light of this evidence, the amount of force used by defendant was excessive.

The evidence presented at trial and considered by the trial court was not so unsatisfactory or improbable as to cast a reasonable doubt as to defendant’s guilt. Since the trial court was in a superior position to appraise the credibility of the witnesses, we will defer to its judgment.

We also address defendant’s contention that the trial court abused its discretion by sentencing him to periodic imprisonment rather than probation. The determination and imposition of a sentence is a matter involving considerable discretion. The standard of review to be applied by this court is whether the trial court exercised that discretion and whether it abused its discretion in imposing sentence. (People v. Robinson (1980), 83 Ill. 2d 424, 415 N.E.2d 1045; People v. Kuesis (1980), 83 Ill. 2d 402, 415 N.E.2d 323; People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Bolyard, (1975), 61 Ill. 2d 583, 338 N.E.2d 168.) As the court in Perruquet stated, “the trial court is normally the proper forum in which a suitable sentence is to be determined and the trial judge’s decisions in regard to sentencing are entitled to great deference and weight.” People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.

As the court commented in People v. Dowiels (1972), 3 Ill. App. 3d 813, 814, 279 N.E.2d 121, which is cited by defendant, “probation is an authorized mode of mild and ambulatory punishment intended as a reforming discipline and is not only proper but imperative where neither the safety and security of the community or the rehabilitation of the defendant requires imposition of the penalty provided by law.” In Dowiels the court noted that the defendant, who was convicted of burglary, was “a young, immature boy whose background, position and attitude make him highly susceptible to rescue ***.” (3 Ill. App. 3d 813, 814.) We find no similarity with the instant case, where defendant is an adult convicted of killing another without justification. Moreover, we note that the trial court sentenced defendant to periodic imprisonment, allowing him to work at his business and see his family. We cannot find this sentencing decision by the trial court was an abuse of discretion.

For the reasons set forth above, we affirm the judgment of the circuit court. As part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for this appeal.

Affirmed.

JOHNSON and ROMITI, JJ., concur.


author: PRESIDING JUSTICE NASH

text:
    KHOSROYAN MALLAH et al., Plaintiffs-Appellants, v. BRUNO BARKAUSKAS, Defendant-Appellee.
    Second District
    No. 84—340
    Opinion filed February 7, 1985.

      Ashley S. Rose, Ltd., of Naperville, for appellants.
    Lee Coleman, of Naperville, for appellee.
   PRESIDING JUSTICE NASH

delivered the opinion of the court:

Plaintiffs, Khosroyan and Tahreh Mallah, appeal from a judgment entered in a small claims action in favor of defendant, Bruno Barkauskas. Plaintiffs contend the trial court failed to apply the requirements of the statute relating to refunds of a tenant’s security deposit by a landlord and that its finding defendant had substantially complied with the statute was against the manifest weight of the evidence. Plaintiffs also claim attorney fees under the statute. Ill. Rev. Stat. 1983, ch. 80, par. 101.

The agreed statement of facts by the parties pursuant to Supreme Court Rule 323(d) (87 Ill. 2d R. 323(d)) establishes that defendant is the lessor of residential apartments in Naperville and entered into a lease with plaintiffs for an apartment for a term from September 1, 1982, to August 31, 1983. Monthly rental was set at $405 and a security deposit of $300 was deposited with defendant by plaintiffs. In August 1983, defendant gave notice to plaintiffs he would not renew their lease and requested surrender of the premises by September 1; plaintiffs did so on August 31.

On September 19, 1983, defendant mailed plaintiffs a letter relating to the security deposit in which he stated plaintiffs had caused damages during their occupancy of the apartment and estimated costs of repair and replacement of damaged fixtures to be $584.14, which, after deducting the security deposit, left a balance due defendant of $284.14. Defendant’s letter stated a final accounting for damages would be made prior to November 1, 1983. Thirty-three days after mailing the initial letter, defendant served copies of receipts for his actual costs of repair on plaintiffs which totaled $540.80.

When defendant failed to return their security deposit, plaintiffs commenced this action in which they sought judgment for twice the amount of the security deposit plus reasonable attorney fees. Plaintiffs contended in a bench trial that defendant had failed either to refund the deposit or provide documentation for his claimed actual costs within the time required by the statute. After considering the evidence, the trial court found that the documents evidencing defendant’s actual costs were sent three days late, but that was in substantial compliance with the statute, for which defendant should not be penalized. Judgment was entered for defendant, and plaintiffs appeal.

The controlling statute which we consider is section 1 of “An Act in relation to security deposits ***” (Ill. Rev. Stat. 1983, ch. 80, par. 101). It imposes certain obligations upon lessors of residential property of 10 or more units who receive a security deposit from a tenant for the payment of rent or to compensate for damage to the premises. The statute provides that no portion of the deposit may be withheld by the lessor unless he, within 30 days of the date the lessee vacated the premises, has furnished lessee with an itemized statement of damage and an estimate or actual costs of repair. If an estimate of cost is given, the lessor must provide paid receipts within 30 days of giving the estimate. If no statement of damages and paid receipts are provided, the lessor must return the security deposit in full within 45 days of the date lessee vacated the premises. The statute further provides:

“Upon a finding by a circuit court that a lessor has refused to supply the itemized statement required by this Section, or has supplied such statement in bad faith, and has failed or refused to return the amount of the security deposit due within the time limits provided, the lessor shall be liable for an amount equal to twice the amount of the security deposit due, together with court costs and reasonable attorney’s fees.” Ill. Rev. Stat. 1983, ch. 80, par. 101.

Plaintiffs contend that as defendant neither provided the receipts within 30 days of giving the estimate nor refunded the deposit within 45 days of vacation of the premises, plaintiffs are entitled to the full statutory award. Plaintiffs argue the trial court erred in extending the time limits of the unambiguous statute and finding substantial compliance with it by defendant.

Defendant responds that the statute did not apply, as the trial court may have determined defendant withheld the deposit for reasons other than a claim for property damage. He posits that, under the lease, the security deposit could be applied also to “defray any costs or losses caused owner by tenant” which could include attorney fees and expenses lessor might incur in enforcing the lease by terminating plaintiffs’ occupancy. Defendant asserts the trial court may have based its decision upon a finding that a good faith dispute existed between the parties relating to something other than property damage so that the statute does not apply.

This court has held that the prohibition of retention of a security deposit under the statute was not intended by the legislature to apply except where part or all of the security deposit is retained for claimed property damage. (Applegate v. Inland Real Estate Corp. (1982), 109 Ill. App. 3d 986, 991, 441 N.E.2d 379.) While the statute is thus not applicable to situations where there is a good-faith dispute over a deposit for reasons other than a claim for property damage, “a landlord has some burden to come forward with some evidence of a good faith dispute for other reasons in order to avoid a presumption that the deposit is being withheld because of a claim of damage.” (Hayward v. Tinervin (1984), 123 Ill. App. 3d 302, 306, 462 N.E.2d 896.) Nothing found in this record suggests defendant withheld the deposit for any reason other than to recover $50 expended for attorney fees and damages to the apartment. There was no evidence that the deposit was applied to unpaid rent or that there was any other pending dispute between the parties. Any contrary speculation by the trial court would have been against the manifest weight of the evidence and insufficient to defeat plaintiffs’ claim.

Defendant also argues that the record reflects his good faith efforts to comply with the requirements of the statute. However, good faith does not itself justify a failure to comply with the time limitations of the statute.

We do not agree, however, that plaintiffs are entitled to recover the statutory penalty of twice the security deposit and attorney fees. The clear language of the statute allows a lessee the return of his security deposit in full within 45 days of vacating the premises if the landlord has failed to supply both the itemized statement of damages and paid receipts within the time limits. Defendant did fail, in this case, to provide the paid receipts within 30 days of the date he gave the estimated cost of repair to plaintiffs. However, the lessee is entitled to the double penalty of the statute only if the lessor has refused to supply the itemized statement, or has done so in bad faith, and has failed or refused to return the security deposit within the time provided. Defendant did, in good faith, provide plaintiffs with an itemized estimate of damages within 30 days of vacation of the premises, and thus the penalty provisions do not arise and plaintiffs may not recover double the amount of their deposit and attorney fees.

Plaintiffs were, however, entitled to the return in full of their security deposit. Although defendant timely furnished the initial estimate of damages, he failed to provide the substantiating receipts within 30 days thereafter and was then required to return plaintiffs’ deposit. Defendant’s remedy in the event he was unable to obtain the receipts within the required time, despite his best efforts, was to refund the deposit and commence an action for damages against plaintiffs, which would not be barred by defendant’s failure to comply with the requirements of the statute on security deposits.

Accordingly, the judgment of the circuit court is reversed and the cause remanded with directions that judgment for $300 and costs be entered in favor of plaintiffs.

Reversed and remanded with directions.

SCHNAKE and HOPF, JJ., concur.


author: JUSTICE REINHARD JUSTICE REINHARD

text:
    THE VILLAGE OF MUNDELEIN, Plaintiff-Appellee, v. WILLIAM K. TAYLOR, Defendant-Appellant.
    Second District
    No. 84—218
    Opinion filed January 31, 1985.
    Supplemental opinion filed on denial of rehearing March 11, 1985.

      Brian S. Taylor, of Walsh, Case, Coale, Brown & Burke, of Chicago, for appellant.
    William G. Rosing and Jeffrey C. Ericksen, both of Rosing, Applehans & Smith, of Waukegan, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, William K. Taylor, following a bench trial, was found guilty of delivering an alcoholic liquor to a minor in violation of village of Mundelein ordinance 80—5—16, section 2 (Mundelein, Ill., Ordinance 80—5—16, sec. 2 (1980)). Defendant was fined $260 and placed under court supervision for a period of one year.

Defendant raises three issues on appeal: (1) whether the village proved by a clear preponderance that defendant delivered an alcoholic liquor to another person under the age of 21 years; (2) whether the village proved by a clear preponderance that the liquid involved was an “alcoholic liquor”; and (3) whether the trial court erred in taking judicial notice that the liquid was an “alcoholic liquor.”

The facts in the instant case have been agreed to on appeal by written stipulation of the parties in lieu of a verbatim transcript of the record. (87 Ill. 2d R. 323(d).) In sum, the agreed facts provide that defendant was charged with knowingly and unlawfully distributing a 12-pack of “Old Style Beer” to Debbie Warsaw and Erika Remikas, both minors, on the night of January 9, 1984.

At a bench trial, held on January 30, 1984, Debbie Warsaw testified that on January 9, 1984, at approximately 6 p.m. she, another female, and three male friends drove to Cardinal Liquors on Lake Street in Mundelein; that she and the other female entered Cardinal Liquors, asked what the price of beer was, purchased a pack of cigarettes, and left the store, returning to the car; that two males then entered the store and attempted to purchase beer, but were refused when they were unable to produce adequate identification; that she was seated in the front seat of the car between the two males when she saw defendant exit his car; that she asked defendant to purchase beer for her; that defendant, after hesitating, consented to make the purchase; that she handed defendant a $5 bill; that defendant entered the store and returned shortly thereafter, handing a brown paper bag through the car window; that she saw two six-packs of “Old Style Beer” inside the bag; and that she was 16 years of age.

Erika Remikas next testified and substantially corroborated Warsaw’s testimony. Remikas also added that the bag defendant handed through the car window contained two six-packs of “Miller Beer”; that they neither opened nor drank the beer; that they had left the unopened beer in a field; and that she was 15 years of age. On cross-examination Remikas stated that she was seated in the back seat of the car during the transaction.

James Shepard testified that on January 9, 1984, at approximately 6 p.m., he was employed as a stock boy for Cardinal Liquors; that the store owner told him to go outside and watch a car in which several youths were seated; that he saw defendant exit the store, hand a paper bag through the right front window of the car, and walk to another car; and that the car in which the youths were seated then drove away.

Barbara Brown testified that she was working as a salesperson for Cardinal Liquors on January 9, 1984; that at approximately 6 p.m. she sold defendant two six-packs of “Miller Beer” and a case of Coke; that she placed the two six-packs of “Miller Beer” in a brown paper bag, but did not put the sales receipt in the bag; and that plaintiff’s exhibit No. 1 was the receipt from defendant’s purchase. On cross-examination, Brown stated that although the sales receipt (plaintiff’s exhibit No. 1) was for the same items, she could not positively identify the receipt as the same one from defendant’s sale.

At the close of its case in chief, the village asked the court to take judicial notice that the beer delivered by defendant was an alcoholic liquor within the meaning of the applicable ordinance. No witnesses were presented on behalf of defendant.

During closing argument defendant asserted that since the “Old Style” or “Miller Beer” allegedly distributed to the minors was never recovered or examined, the village had failed to overcome its burden of establishing that the liquid delivered had an alcoholic content in excess of .5% as required under the applicable Mundelein ordinance. Defendant further maintained that judicial notice was improper because the alleged alcoholic liquid was not introduced into evidence, no chemical analysis was made of its alcoholic content, and no one had testified as to the alcoholic nature of the liquid other than to use the phrase “Miller Beer” or “Old Style Beer.”

The trial court rejected defendant’s arguments and ruled that it would take judicial notice that the liquid was an alcoholic liquor as defined by the applicable ordinance. Defendant was then found guilty, fined $260, and placed under court supervision for a one-year period.

Village of Mundelein ordinance 80—5—16, section 2 (Mundelein, Ill., Ordinance 80—5—16, sec. 2 (1980)) provides, in relevant part, that:

“No person, after purchasing or otherwise obtaining alcoholic liquor, shall sell, give or deliver such alcoholic liquor to another person under the age of twenty-one years except in the performance of a religious ceremony or service.” (Emphasis added.)

Inasmuch as neither party has provided this court with the possible penalty provisions to be imposed for a violation of village of Mundelein ordinance 80—5—16, section 2, we will assume that such violations are only punishable by fine and not by a period of incarceration.

A prosecution for the violation of a municipal ordinance and to recover a fine or penalty, while quasi-criminal in nature, is civil in form and is tried and reviewed as a civil proceeding. (Village of Mundelein v. Aaron (1983), 112 Ill. App. 3d 134, 135, 445 N.E.2d 57.) Thus, the village bears the burden of proving the violation of its municipal ordinance by a clear preponderance of the evidence. See City of Chicago v. Joyce (1967), 38 Ill. 2d 368, 373, 232 N.E.2d 289; City of Chicago v. Severini (1980), 91 Ill. App. 3d 38, 42, 414 N.E.2d 67.

Defendant first contends that the village failed to overcome its burden of proving that the liquid in question was “delivered” to an individual under the age of 21 years. In support of this contention, defendant asserts that the evidence adduced at trial only showed that he handed a brown paper bag through the right front window of the car and does not reveal to whom the bag was handed, or that the two minor girls ever touched the bag or the containers of liquid contained therein. Defendant also maintains that there was no evidence indicating the age of the three males seated within the vehicle and that the possible delivery of the bag to one of them does not constitute constructive delivery by defendant to the minor girls.

Defendant has not cited, nor are we aware of, any authority which holds that in order to effectuate a delivery of an alcoholic liquor to a minor there must be an actual physical touching of the liquid in question by the minor. While we have found no Illinois cases addressing this precise issue, other jurisdictions, in related situations, have held that all that is required is that the defendant place the alcoholic beverage in a position where the minor could obtain it with the intention that the minor take it. See, e.g., State v. Bush (1970), 93 Idaho 538, 540, 466 P.2d 578, 580; Wales v. State (1919), 86 Tex. Crim. 183, 217 S.W. 384.

The uncontradicted testimony of both minor witnesses in the present case confirms that defendant was approached by Warsaw, a 16-year-old female, who, while seated in a car, asked the defendant to purchase beer for her and gave the defendant a $5 bill with which to make the purchase; that defendant at first hesitated, but then consented to make the purchase; and that defendant returned and handed a brown paper bag containing two six-packs of “Miller or Old Style Beer” into the interior of their vehicle. Defendant was also seen handing the brown bag through the right front window of the vehicle by a store employee.

We are of the opinion that by deliberately purchasing the beer after having been so requested by 16-year-old Debbie Warsaw, and by placing the beer into the vehicle where the minor girls could obtain it, defendant effectuated a delivery to persons under the age of 21 years by a clear preponderance of the evidence.

Defendant next contends that the village did not establish by a clear preponderance of the evidence that the containers of liquid delivered to the minors contained an “alcoholic liquor” within the meaning of village of Mundelein ordinance 76—3—7, section 1, which defines an “alcoholic liquor” as any spirits, wine, beer, ale, or other liquid containing more than .5% of alcohol by volume which is fit for beverage purposes. (Mundelein, Ill., Ordinance 76—3—7, sec. 1 (1976).) Defendant asserts that the “Miller or Old Style Beer” was never recovered or submitted to chemical analysis, and there was no other evidence adduced at trial indicating the alcoholic content of the containers of liquid.

Thus, the issue presented by defendant is whether the evidence sufficiently established that the liquid in the “Miller or Old Style Beer” six-packs delivered was an alcoholic liquor containing more than .5% of alcohol by volume as defined by village of Mundelein ordinance 76—3— 7, section 1.

In Keeler Mart Liquors, Inc. v. Daley (1978), 57 Ill. App. 3d 32, 372 N.E.2d 1049, cited in support by both defendant and the village, the primary issue on appeal was whether the evidence was sufficient to establish that cans of Schlitz beer, sold to a minor, contained in excess of .5% of alcohol by volume, as statutorily defined, where the contents of the cans were neither submitted to chemical analysis nor introduced into evidence. In resolving this issue, the appellate court held that while submitting the liquid to chemical analysis and introducing the results into evidence may be considered the preferred procedure, the alcoholic content of a product may be established by other competent evidence. (57 Ill. App. 3d 32, 35, 372 N.E.2d 1049.) The court then ruled that the competent unchallenged testimony of a minor, that he effected the purchase of an “alcoholic beverage” and that he recognized this transaction to have been illegal, was sufficient to establish that the product sold was an “alcoholic liquor” containing more than .5% of alcohol by volume.

Defendant maintains that since no one testified as to the alcoholic content or nature of the containers of liquid in the present case, Keeler mandates a finding that the “Miller or Old Style Beer” delivered was not an “alcoholic liquor” as defined by the Mundelein ordinance. We disagree with defendant’s narrow interpretation of Keeler, which would in effect limit its application solely to cases where testimonial admissions are made by the purchaser. Instead, we interpret the Keeler decision as holding that the nature of a product may be circumstantially proved by any competent evidence.

Turning to the facts of the present case, we find sufficient competent evidence in the record from which it can be reasonably inferred that defendant delivered an “alcoholic liquor” as statutorily defined by the applicable Mundelein ordinance. Both Debbie Warsaw and Erika Remikas, the two minors, testified that they initially entered Cardinal Liquors to check the price of beer; however, they did not attempt to purchase it. Similarly, two of their male companions entered the same store and attempted to make a purchase of beer, but were refused when they failed to produce adequate identification. When these efforts proved unavailing, the minors then requested defendant to effectuate the purchase of beer. There is also evidence in the record indicating that an employee of Cardinal Liquors sold two six-packs of “Miller Beer” to defendant. Furthermore, Warsaw and Remikas testified that defendant handed through the car window a bag containing two six-packs which Warsaw described as “Old Style Beer,” whereas Remikas testified the bag contained “Miller Beer.”

The unrebutted evidence further established directly or by reasonable inference that an employee of a liquor store sold defendant in original containers, unopened, what was labeled either “Miller or Old Style Beer.” From these factual circumstances, established by uncontradicted testimony at trial, the lower court could reasonably infer that what was contained in the six-packs was beer, and the beer was an “alcoholic liquor” within the meaning of the Mundelein ordinance. We reject the essence of defendant’s argument that the municipality must put on proof of the alcoholic content by introducing into evidence the container itself or evidence of its contents through testimony of its examination and analysis. Cf People v. Gore (1983), 115 Ill. App. 3d 1054, 1056-57, 450 N.E.2d 1342.

At the very least, we find the evidence adduced at trial sufficient to establish a prima facie violation of the applicable Mundelein ordinances. While the burden of proof remains with the village, once a prima facie violation is established, defendant may, but is not compelled, to rebut these reasonable inferences by introducing evidence to the contrary. (Keeler Mart Liquors, Inc. v. Daley (1978), 57 Ill. App. 3d 32, 35, 372 N.E.2d 1049.) Defendant chose not to present any evidence indicating that the cans of beer at issue contained less than .5% alcohol by volume, and we find no other evidence in the record from which this can be reasonably inferred. Accordingly, we conclude that the beer delivered by defendant was an “alcoholic liquor” as defined in village of Mundelein ordinance 76—3—7, section 1.

In view of our above analysis, we find it unnecessary to consider whether the trial court properly took judicial notice of the beer as an “alcoholic liquor.”

For the foregoing reasons, the decision of the circuit court is affirmed.

Affirmed.

UNVERZAGT and SCHNAKE, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE REINHARD

delivered the opinion of the court:

Upon our denial of the petition for rehearing filed by William K. Taylor, we find it necessary to briefly address one of the arguments raised therein. It is contended that the village of Mundelein must prove “beyond a reasonable doubt,” rather than by a clear preponderance of the evidence, that Taylor violated the ordinance in question.

Not only did Taylor, as appellant, fail to provide in the record furnished us on appeal the ordinance in question and its penalty provision, but also he has not disputed the assumption in our opinion that the penalty provision did not provide for a period of incarceration. Instead, Taylor now raises, for the first time in the petition for rehearing, the argument that the standard of proof in this case must be beyond a reasonable doubt rather than by a clear preponderance of the evidence. A new contention cannot, for the first time, be urged in a petition for rehearing. (People v. Mallett (1970), 45 Ill. 2d 388, 397-98, 259 N.E.2d 241; 87 Ill. 2d R. 367.) Moreover, Taylor specifically acknowledged in the opening paragraph of the argument portion of his original brief that the village “was required to prove by a clear preponderance of the evidence that defendant delivered an ‘alcoholic liquor’ to ‘another person under the age of twenty-one years.’ ” Accordingly, we adhere to our original opinion.

UNVERZAGT and SCHNAKE, JJ., concur.