author: JUSTICE SCOTT

text:
    AMAND LePRETRE, Plaintiff-Appellant, v. PETRIE BROS., INC., et al., Defendants-Appellees.
    Third District
    No. 82-461
    Opinion filed March 22, 1983.

      Frank M. Brady, Sr., and Francis M. Brady, Jr., both of Dunn, Brady, Goebel, Ulbrich, Morel, Kombrink & Hundman, of Bloomington, for appellant.
    Robert E. Hunt, of Goldsworthy & Fifield, of Peoria, for appellee Heineke Electric, Inc.
    Charles G. Roth and Phillip B. Lenzini, both of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria, for appellee Petrie Bros.
    Randall W. Moon, of O’Hern, Wombacher & Moon, of Peoria, for appellee Central Illinois Light Co.
   JUSTICE SCOTT

delivered the opinion of the court:

This action was brought by the plaintiff, Amand LePretre, to recover for personal injuries he suffered as a result of an explosion at his place of employment. Named as defendants were Petrie Bros., Inc., Heineke Electric, Inc., and Central Illinois Light Co. The plaintiff sought to recover from the defendants on theories of products liability and negligence. In response to motions filed by all three defendants, the circuit court of Peoria County dismissed plaintiff’s complaint, finding it was barred by the two-year statute of limitations set forth in section 14 of the Limitations Act (111. Rev. Stat. 1979, ch. 83, par. 15). The plaintiff appeals the dismissal of his complaint.

On August 22, 1979, the plaintiff was injured in an explosion at his place of employment, Roanoke Farmers Association. At the time of the explosion, the plaintiff was in the scale house adjacent to a grain storage facility. The plaintiff was severely burned over his entire body and for treatment of his injuries was hospitalized from the time of the explosion until the week before Thanksgiving, 1979. For the first several months of his hospitalization, from August 22, 1979, until the last week of October 1979, the plaintiff remained in a state of confusion and disorientation. After his hospitalization, the plaintiff convalesced at his home until the spring of 1980.

At that time, in the spring of 1980, the plaintiff visited the grain storage facility and there talked with Morris Barth. Mr. Barth related to the plaintiff for the first time that there had been an investigation into the explosion and that an underground gas pipe connected to the scale house had been dug up and removed. Mr. Barth never told the plaintiff of the results of the inspection, nor did he clearly state to plaintiff exactly who or what entity removed the pipe to perform the inspection.

In November 1981, plaintiff was first advised of the possibility that his injuries were wrongfully caused when he met with an attorney in Bloomington, Illinois. Plaintiff filed suit to recover for his injuries on December 31, 1981. That suit was dismissed by the circuit court, which concluded that it was not timely filed. The plaintiff urges us to hold that conclusion to be inconsistent with recent decisions of our supreme court.

In Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976, Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864, and Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869, there evolved a new discovery rule which in certain cases can work to extend the statute of limitations. Specifically, the rule provides that the statute does not begin to run until a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. (Witherell v. Weimer.) The plaintiff urges that this rule should be applied to the facts before us. If the rule were so applied, the plaintiff submits that the two-year statute of limitation period commenced not on the date of his injury, August 22, 1979, but at some point well within two years of the date suit was filed.

We note that in each of the decisions wherein the discovery rule has been applied the fact situations involved claims for injuries and/or illnesses which manifested themselves gradually over a number of years, rather than injuries and/or illnesses resulting from a sudden traumatic event (e.g., an explosion). In a decision predating Knox College, Nolan and Witherell, it was held that an action to recover for personal injuries resulting from a sudden traumatic event accrues when plaintiff first knew of his right to sue, i.e., at the time when the injury occurred. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305.) Thus, if we are to adopt the plaintiff’s position and apply the discovery rule to the instant facts, we must conclude that Knox College, Nolan, and Witherell overruled the prior decision in Williams. That conclusion is not supported by the reasoning of those subsequent decisions nor by recent holdings of other reviewing courts.

We first note that in the Nolan decision which adopted and applied the discovery rule, the sudden traumatic event rule set forth in the Williams decision was quoted from approvingly. This supports our view that in adopting the discovery rule, the supreme court had no intention of overruling sub silentio its prior decision in Williams. Further, the appellate court in Bates v. Little Company of Mary Hospital (1982), 108 Ill. App. 3d 137, 438 N.E.2d 1250, and the United States Circuit Court of Appeals in Lofton v. General Motors Corp. (7th Cir. 1982), 694 F.2d 514, both reached the conclusion that the rule set forth in Williams has continuing vitality, and that where injuries are suffered as a part of a sudden traumatic event, the statute of limitations begins to run at the time when the injury occurs. Absent compelling differences or controlling precedent to the contrary, the well-established rule of stare decisis would have us follow the appellate court opinion in Bates (Cornue v. Weaver (1975), 29 Ill. App. 3d 546, 331 N.E.2d 148, rav’d (1976), 64 Ill. 2d 78, 354 N.E.2d 359), while according respectful consideration to the Circuit Court of Appeals’ decision in Lofton (People ex rel. Swiderski v. Brierton (1978), 65 Ill. App. 3d 153, 382 N.E.2d 628). Indeed, we find the reasoning of those decisions most persuasive. As the Lofton court stated,

“In cases such as Nolan involving illness or injuries which manifest themselves gradually over the course of many years, as contrasted with those injuries caused and/or exacerbated by a sudden traumatic event, it is difficult to pinpoint the precise time the injury occurs. The Illinois Supreme Court believed that in such a situation ‘the ends of justice are served by permitting plaintiff to sue within the statutory period computed from the time at which he knew or should have known of the right to sue.’ [Citation.] On the other hand, as in the instant case, where the injury results from a sudden traumatic event, it is not difficult to pinpoint the precise time the injury occurs, i.e., at the time the sudden traumatic event occurs. Moreover, the view urged on us by the plaintiff in this case would effectively render the statute of limitations meaningless because under the plaintiff’s view the limitation period would not begin to run until the plaintiff retained an attorney who was willing to file a law suit more than three years after the sudden traumatic event causing the injury.” (694 F.2d 514, 518.)

We agree with this analysis of the supreme court’s holding in Knox College, Nolan and Withered.

For the reasons set forth, we believe the discovery rule does not apply to the facts of the instant case where a sudden traumatic event caused the plaintiff’s injury. Rather, we believe the statute of limitations began to run on August 22, 1979, the date of the explosion at the Roanoke Farmers Association. It follows then that the order of the circuit court of Peoria County dismissing this action as time-barred was correct.

Affirmed.

STOUDER, P.J., and BARRY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McNAMARA

license: Public Domain

text:
    MICHAEL KALODIMOS et al., Plaintiffs-Appellants, v. THE VILLAGE OF MORTON GROVE, Defendant-Appellee.
    First District (3rd Division)
    No. 82—282
    Opinion filed February 9, 1983.
    — Rehearing denied April 20, 1983.

      Pedersen & Houpt, of Chicago (Michael K. McCabe, Richard E. Gardiner, Robert Dowlut, Richard V. Houpt, Sheldon Davidson, and Donald J. Moran, of counsel), for appellants.
    Martin C. Ashman, Ltd., and Jenner & Block, both of Chicago (Thomas P. Sullivan, Michael H. Salsbury, and Eugene R. Wedoff, of counsel), for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, Michael Kalodimos, George L. Reichert, Robert E. Metier, and Richard A. Schnell, filed this suit for declaratory and injunctive relief challenging the constitutionality of defendant village of Morton Grove’s Ordinance 81-11, “An Ordinance Regulating the Possession of Firearms & Other Dangerous Weapons.” Plaintiffs appeal from the trial court’s decision granting defendant’s cross motion for summary judgment in which the validity of the ordinance was upheld, and denying plaintiffs’ motion for summary judgment.

The ordinance in question provides that “[n]o person shall possess, in the Village of Morton Grove *** [a]ny handgun, unless the same has been rendered permanently inoperative.” The ordinance specifies various exceptions for certain categories of persons such as peace officers, prison officials, members of the armed forces and national guard and, under certain conditions, licensed gun collectors. Plaintiffs, residents of Morton Grove who own and possess operative handguns and who all within none of the exceptions, charge that the ordinance is invalid because it infringes upon the right of the individual citizen to keep and bear arms as guaranteed by article I, section 22, of the 1970 Illinois Constitution.

Section 22 provides that, “[sjubject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.” (111. Const. 1970, art. I, sec. 22.) In construing section 22 the trial court relied primarily upon the plain meaning of its language, the majority report submitted to the delegates by the committee which proposed the section to the constitutional convention, and on the official explanation which accompanied the proposed constitutional provision on its submission to Illinois voters. The trial court found the handgun to be an arm within the meaning of section 22. Noting that individuals were free to possess other types of arms; however, the trial court found the Morton Grove ordinance to be a reasonable exercise of the village’s police power.

On appeal, plaintiffs contend that the plain meaning of section 22, as understood by both the drafters and the voters, establishes that it guarantees the right to keep a handgun. That right, plaintiffs argue, is subject to reasonable regulation, not prohibition, pursuant to the police power. They therefore urge that we find the ordinance in question to be unreasonable and improper exercise of police power in that it operates to nullify a constitutional guarantee.

Both sides agree that handguns are included within the class of arms protected by section 22. Their point of contention is whether a ban on handguns alone is a proper exercise of local police power where citizens are free to possess other types of protected arms.

Plaintiffs correctly assert that the true inquiry in interpreting a constitutional provision concerns the common understanding of that provision by the voters who, by their vote, gave life to the provision. (People ex rel. Cosentino v. County of Adams (1980), 82 Ill. 2d 565, 413 N.E.2d 870.) We find, however, that in the present case, examination of the most reliable determinants of that common understanding leaves unresolved the issue with which we are concerned.

The official explanation merely asserts that “the right of the citizen to keep and bear arms cannot be infringed, except as the exercise of this right may be regulated by appropriate laws to safeguard the welfare of the community.” (7 Record of Proceedings, Sixth Illinois Constitutional Convention 2689 (Proceedings).) This explanation provides no more guidance than does the plain language of section 22 in helping to determine whether such regulation may include a prohibition against one category of protected arms.

Similarly, plaintiffs’ reliance on the majority report of the Bill of Rights Committee is misplaced. Plaintiffs argue that the report, which was presented by the majority of the committee who proposed section 22 to the delegates prior to their debates, indicates that both the members of the committee and the other delegates understood section 22 to preclude a ban on the possession of handguns. The portion of the report on which plaintiffs rely provides:

“[T]he proposed new provision *** seeks to assure that the ‘arms’ involved are not limited by the armaments or needs of the state militia or other military body. The substance of the right is that a citizen has the right to possess and make reasonable use of arms that law-abiding persons commonly employ for purposes of recreation or the protection of person and property. Laws that attempted to ban all possession or use of such arms, or laws that subjected possession or use of such arms to regulations or taxes so onerous that all possession or use was effectively banned, would be invalid.” (6 Proceedings 87.)

While the language clearly indicates that handguns are within the type of arms protected by section 22, it does not clearly preclude a ban on handguns absent a ban on other protected arms. Indeed, the report also notes the “extraordinary threat to the safety and good order of society” posed by the possession of arms and recites that in response to that threat section 22 would provide for an “extraordinary degree of control” over the possession of arms pursuant to the police power. 6 Proceedings 88.

Since the meaning accorded section 22 is otherwise doubtful with regard to the extent of control permissible under the police power, it is appropriate to consult the debates of the delegates to the constitutional convention to ascertain the intent of the drafters. (Drury v. County of McLean (1982), 89 Ill. 2d 417, 433 N.E.2d 666.) This approach was recently used by the Federal court in Quilici v. Village of Morton Grove (7th Cir. 1982), 695 F.2d 261, where it upheld the constitutionality of the same ordinance in question here. Finding the language of section 22 to be unclear, the court based its interpretation of the section on the constitutional debates. It concluded that section 22 grants only the right to possess arms, not handguns. While finding that the framers intended handguns to be within the class of protected arms, it also found the framers to have envisioned that a permissible exercise of police power might include a prohibition on handguns. We believe that this interpretation of section 22 is amply supported by the debates, and we adopt the reasoning expressed by the seventh circuit.

We reject plaintiffs’ contention that the debates regarding the present issue are confusing, contradictory and inherently unreliable. Conversely, we find that they demonstrated a consensus among the delegates with regard to the scope of protection accorded handguns pursuant to section 22 and the extent to which that protection is limited by the police power.

In explaining section 22 to the delegates, Delegate Foster specifically asserted the majority view that “under this provision, the state would have the right to prohibit some classes of firearms, such as war weapons, handguns, or some other category.” (3 Proceedings 1687.) This view was reiterated throughout the debates (3 Proceedings 1688, 1689, 1693, 1718), the consensus of the majority being that, although section 22 “would prevent a complete ban on all guns *** there could be a ban on certain categories.” (3 Proceedings 1693.) Although some delegates who supported the majority view expressed a preference for a stronger right to arms which would have precluded such a ban (3 Proceedings 1704, 1707), no delegate indicated that he so interpreted section 22 as it was proposed and ratified.

Even the minority delegates favored the interpretation given by the majority. Their concern was that the language, which they viewed as ambiguous, might be misinterpreted by the courts and result in the invalidation of the type of arms regulation with which we are concerned in the present case. (3 Proceedings 1693, 1694, 1695, 1709.) While recognizing that a ban on handguns probably would be upheld by the courts, the minority was reluctant to take that risk. (3 Proceedings 1693, 1694.) Fearing that the effect of the majority proposal could possibly “be to limit, in some indefinite and unpredictable fashion, the power of the legislature to pass whatever laws are needed in this field to protect the public safety” (3 Proceedings 1694), the minority preferred omitting entirely from the Constitution any provision purporting to guarantee a right to bear arms. 3 Proceedings 1696, 1697.

The debates thus convince us that the framers intended that a ban on handguns be a permissible exercise of the police power pursuant to section 22. Although the explanation given the voters was less clear in this regard, we find no indication that the common understanding of the voters was contrary to that of the framers.

We reject plaintiffs’ contention that this interpretation of section 22 renders illusory the right to arms. While we agree with plaintiffs that gun control legislation could vary from municipality to municipality, we find that the framers envisioned this kind of local control. Such variations would not render the right illusory because the citizens of each municipality would retain the right to bear some type of arms.

We also reject plaintiffs’ contention that the ordinance in question was an unreasonable exercise of the police power. A municipality has broad discretion to determine not only what the interests of the public welfare require but what measures are necessary to secure those interests. We will not disturb an exercise of police power merely because there is room for a difference of opinion as to its wisdom or necessity. (City of Carbondale v. Brewster (1979), 78 Ill. 2d 111, 398 N.E.2d 829.) In the present case, the purpose of the ordinance in question, “to promote and protect the health and safety and welfare of the public” (Village of Morton Grove Ordinance 81-11), is certainly a proper interest for the exercise of police power. (City of Carbondale v. Brewster.) Furthermore, we find that the means adopted, a ban on handguns, constituted a reasonable means of promoting that interest. See Rawlings v. Rlinois Department of Law Enforcement (1979), 73 Ill. App. 3d 267, 391 N.E.2d 758.

For the foregoing reasons, the judgment of the circuit court of Cook County upholding the validity of the Morton Grove ordinance is affirmed.

Judgment affirmed.

McGILLICUDDY and WHITE, JJ., concur.


author: JUSTICE CAMPBELL

text:
    HARRY H. ELLIS, d/b/a Photo America of Chicago, Inc., Plaintiff-Appellee, v. PHOTO AMERICA CORPORATION, Defendant-Appellant.
    First District (1st Division)
    No. 81—2231
    Opinion filed March 14, 1983.
    — Rehearing denied April 25, 1983.

      Junie L. Sinson and Thomas J. Swabowski, both of Barclay, Damisch & Sinson, of Chicago, for appellant.
    Edward T. Joyce and James E. Dahl, both of Joyce and Kubasiak, of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Harry H. Ellis, brought this action against defendant, Photo America Corporation, a Delaware corporation, seeking recovery of compensation due under an employment agreement with defendant and quantum meruit relief for services performed subsequent to the termination of the employment contract. Following a bench trial, the trial court entered judgment for plaintiff in the amount of $15,307.96 on plaintiff’s claim under the employment contract and in the amount of $95,497.14 in quantum meruit relief. On appeal, defendant contends that: (1) the trial court erred in considering plaintiff’s claim for equitable relief because the evidence established that plaintiff was guilty of “unclean hands”; (2) the evidence established that plaintiff, not defendant, breached the employment contract between the parties; and (3) the trial court improperly valued plaintiff’s services in its award of quantum meruit relief.

The record discloses that, in 1975, plaintiff, Harry H. Ellis, and Walter Hutterli, an officer of World Photo Marketing, a European corporation, discussed the formation of a new company to distribute cameras and photographic accessories for a Japanese camera manufacturer. From the record, it appears that neither World Photo Marketing nor the Japanese manufacturer had previously conducted business in the United States. As a result of the discussions between plaintiff and Hutterli, it was agreed that plaintiff would become president of a newly formed Delaware corporation, Photo America Corporation (PAC). PAC was incorporated as a wholly owned subsidiary of World Photo Marketing. On October 20, 1975, plaintiff commenced employment with PAC. In January 1976, plaintiff and PAC entered into an employee agreement, which agreement was backdated to October 20, 1975. The agreement was for a period of one year with either party being able to terminate the agreement upon six months’ notice. Pursuant to the employment agreement, plaintiff was to receive a salary of $50,000 per annum. A separate “Memorandum of Agreement” dated October 20, 1975, further provided that plaintiff was to receive, in addition to the salary provided for in the employment agreement, additional compensation of $6,250 per quarter.

From the record, it appears that difficulties between plaintiff and Hutterli developed. In March 1976, plaintiff requested from Hutterli “a complete understanding as to what [his] responsibilities are” with respect to PAC. Subsequently, plaintiff was invited to a meeting in Switzerland in late April 1976 with Hutterli and several directors of Interdiscount Service S.A., the parent corporation of World Photo Marketing. According to plaintiff and Hutterli, it was agreed at the meeting that it was necessary to make changes within PAC. Hutterli proposed to plaintiff that plaintiff become a commissioned agent for PAC, rather than its president and employee.

While still in Switzerland, plaintiff was given a draft proposal of the agency agreement between World Photo Marketing, PAC and plaintiff. The draft agreement set forth a commencement date of June 1, 1976, and a termination date of December 31, 1977. The proposal classified the transactions for which plaintiff was to receive a commission. Case I sales involved sales to major United States customers who purchased directly from the supplier against letters of credit. In case I sales, plaintiff and PAC would share equally in profits after payment of certain costs. Case II sales involved instances where plaintiff would be dealing with main customers purchasing $30,000 or more in goods from PAC. In case II sales, plaintiff and PAC would share equally in profits after the payment of certain costs. Case III sales involved sales to the military for which plaintiff would not receive any commission. Case IV sales involved sales to smaller customers. In case IV sales, plaintiff would receive the entire profit after the payment of certain costs. The proposal also provided that plaintiff was entitled to a draw of $7,000 per month against commission.

In early May 1976, a second proposal which, according to Hutterli, contained a few alterations or corrections was prepared and sent to plaintiff in the United States. From the record, it appears that the commission rates were substantially the same as in the first draft of the agency agreement. The second draft also retained the same commencement and termination dates. The second draft stated that plaintiff would be entitled to a maximum draw of $7,000 per month which would be subject to review.

According to plaintiff, he requested the corporate attorney for PAC to prepare a third draft of the agency agreement. The commission schedule of the third draft was substantially similar to the prior two drafts of the agency agreement. The third draft deleted a section of the prior drafts which pertained to arbitration of any disputes in Switzerland and added a section which permitted plaintiff to assign the contract to any corporation in which he held a majority interest. The third proposal also provided that plaintiff would receive $7,000 on the first of each month, which amount would be credited against plaintiff’s commissions. According to plaintiff, two copies of the third draft were prepared, an English version and a Swiss version. The English version left blank the commencement date of the agreement, whereas the Swiss version retained the June 1, 1976, commencement date. Both versions stated that the agreement terminated on December 31, 1977.

Plaintiff testified that in mid-May 1976, he spoke with Robert Becker, the sales manager of PAC, about the changes that would be occurring within PAC. Subsequently, Becker met with Hutterli in Switzerland. Upon his return, Becker presented to plaintiff a list of tasks to be completed prior to Hutterli’s arrival in the United States in late May. Plaintiff met with Hutterli in late May, at which time plaintiff gave Hutterli a copy of the third draft of the agency agreement.

Upon returning from a sales trip in early June, plaintiff met Joaquin Armengol. Armengol gave plaintiff a packet of materials which included a letter of introduction from Hutterli which stated that Armengol was the new general manager and head accountant of PAC. A check for $7,000 was also included in the packet and the cover letter attached to the materials stated that the $7,000 was “as agreed by [plaintiff] with Mr. Hutterli.” The reverse side of the check was typed with the following notation: “Draw against future salaries or commissions due from Photo America Corp.” The packet of materials contained a direction to plaintiff that he was no longer authorized to use the PAC bank account and a memorandum which stated that after June 1, 1976, all sales “effected by [plaintiff] directly to [his] customers should [be] invoiced with a letterhead reading something like ‘Harry Ellis Agent for PAC’ ” and that plaintiff should not use old RAC invoices as he had done in the past.

In mid-June 1976, plaintiff met with Hutterli in Tokyo, at which time Hutterli gave plaintiff a letter dated June 12 which gave plaintiff notice pursuant to the October 20, 1975, employment agreement that plaintiff’s employment would be cancelled as of December 31, 1976. According to Hutterli, he informed plaintiff that the third draft of the agency agreement was unacceptable and that PAC would not consider doing business based upon the third draft of the agreement. Hutterli also stated that he and plaintiff discussed the amount of money that plaintiff would receive pursuant to the October 20 employment contract. On July 7, 1976, plaintiff and Hutterli met and again were unable to reach an agreement concerning plaintiff’s relationship with PAC. At this meeting, Hutterli informed plaintiff that his employment with PAC was terminated. On July 13, plaintiff received a letter from Hutterli which indicated that plaintiff’s employment with PAC was terminated. On August 4, plaintiff submitted a written demand for profits for case I and case IV sales, severance pay and additional salary for October 20, 1975, to May 31, 1976, which was not received by plaintiff.

Subsequently, plaintiff brought this action. PAC raised as an affirmative defense to plaintiff’s claim for equitable relief the defense of unclean hands. Defendant argued that plaintiff transferred funds to his corporation for the purpose of “laundering money to be used for the bribery of customers.” Following a bench trial, the trial court found as follows: that PAC failed to meet its burden of establishing unclean hands; that the equities in the case were with plaintiff; that plaintiff performed his duties under the October 20, 1975, employment agreement and that PAC breached the agreement in its failure to pay plaintiff the additional salary as set forth in the agreement; and that plaintiff was entitled to recover the reasonable value of his services beginning on June 1, 1976. Accordingly, the court entered judgment for plaintiff in the amount of $110,805.10 which represented $15,307.96 for plaintiff’s breach of contract claim and $95,497.14 for plaintiff’s claim for quantum meruit relief. Defendant appeals.

RAC first contends that the trial court erred in its award of equitable relief because plaintiff had “unclean hands.” PAC argues that plaintiff’s testimony established that plaintiff made payments to the purchasing representatives of various companies in order to obtain the business of those companies. PAC also urges that plaintiff had “unclean hands” because he diverted PAC funds to pay salaries to his sons. PAC maintains that plaintiff also received payments from an advertising agency which was used by PAC. PAC contends that plaintiff’s failure to explain the payments received from the advertising agency or the salaries paid to plaintiff’s sons through a family owned business called “Beck Associates” raises the presumption that plaintiff was engaged in fraudulent conduct. In support of its arguments, PAC cites Nathan v. Tenna Corp. (7th Cir. 1977), 560 F.2d 761, in which the Seventh Circuit, applying Illinois law, held that the illegal conduct of a sales representative precluded recovery of commissions due on sales.

Plaintiff maintains that the trial court correctly concluded that PAC failed to meet its burden of establishing “unclean hands.” Plaintiff argues that in order to establish the equitable defense, PAC must show that there must be some type of fraud or misconduct by plaintiff in connection with the very transaction at issue before the court. See Mascenic v. Anderson (1977), 53 Ill. App. 3d 971, 369 N.E.2d 172.

It is a fundamental rule that one seeking equitable relief cannot take advantage of his own wrong or, "in other words, he who comes into equity must come with “clean hands.” (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 408 N.E.2d 1069; Metcalf v. Altenritter (1977), 53 Ill. App. 3d 904, 369 N.E.2d 498.) In order to defeat recovery in equity under the “unclean hands” doctrine, plaintiff must be guilty of misconduct in connection with the very transaction at issue and the misconduct, fraud or bad faith must be directed toward the defendant who raises the equitable defense of “unclean hands.” (Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 422 N.E.2d 1166.) The “unclean hands” doctrine is not favored by the courts and it is not intended to prevent a court from doing complete justice. (Baal v. McDonald’s Corp.; Smith v. Marzolf (1980), 81 Ill. App. 3d 59, 400 N.E.2d 949.) In addition, the application of the doctrine rests within the sound discretion of the trial court. Baal v. McDonald’s Corp.; Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc.

Under the principles which we have set forth, the “unclean hands” of plaintiff must be in connection with the very transaction that forms the basis of his claim for quantum meruit relief. From the record, it appears that the trial court was correct in concluding that PAC failed to prove that plaintiff engaged in conduct which could be characterized as “unclean hands.” PAC has also failed to establish by any competent evidence support for its contention that the alleged “unclean hands” occurred in connection with the very transaction which gives rise to plaintiff’s claim for equitable relief. In addition, it does not appear from the record that PAC has been defrauded by the conduct of plaintiff. See Baal v. McDonald’s Corp.

Additionally, PAC’s reliance upon Nathan v. Tenna Corp. (7th Cir. 1977), 560 F.2d 761, is misplaced. In that case, a manufacturer’s representative brought suit against the manufacturer for recovery of commissions due under a contract. Prior to the lawsuit, the representative pleaded guilty to mail fraud in connection with a commission-splitting scheme with an employee of the manufacturer’s customer. In affirming the district court’s dismissal of the action, the Seventh Circuit concluded that public policy precluded recovery by plaintiff because his conduct was of a sufficiently serious nature to prevent the courts from enforcing an arguably severable promise to pay commissions. The Seventh Circuit also noted that the performance of the contract was accomplished, in part, through the commission of criminal acts. In the instant case, the evidence adduced at trial does not establish that plaintiff’s conduct was of a criminal nature or was of a sufficiently serious nature so as to preclude the award of equitable relief. Accordingly, we conclude the trial court did not err in declining to apply the doctrine of “unclean hands” as the evidence failed to establish the equitable defense.

PAC next urges that the trial court erred in concluding that PAC breached the October 20, 1975, employment agreement. PAC argues that plaintiff was guilty of bad faith in his dealings with PAC and of wilful disregard of his duties under the agreement. In its findings, the trial court concluded that plaintiff fulfilled all of his duties under the October 20 agreement and that PAC breached the employment contract in its failure to pay plaintiff the additional compensation as set. forth in the separate “Memorandum of Agreement.” The additional salary was $15,307.96, which amount was calculated by prorating the $25,000 annual additional compensation for the period from October 20, 1975, to May 31, 1976. In reviewing the findings of the trial court, a court of review will not disturb the trial court’s findings unless the findings are contrary to the manifest weight of the evidence. (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205.) In its brief, PAC makes allegations of misconduct and bad faith by plaintiff; however, PAC has again failed to offer support and evidence of its assertions of plaintiff’s misconduct. From the record, it appears that plaintiff performed his duties as set forth in the employ-merit agreement. Plaintiff was responsible for beginning the operations of PAC and for procuring sales on behalf of PAG. It further appears that plaintiff discharged his duties as an officer and general manager of PAC. In addition, the record does not indicate that plaintiff failed to devote his full business time and best efforts to PAC. The trial court also found that PAC breached the October 20 agreement with plaintiff by its failure to pay the additional compensation to plaintiff. We agree with the findings of the trial court and hold that the court’s findings were not contrary to the manifest weight of the evidence.

PAC’s final contention is that the trial court erred in computing the amount awarded to plaintiff in quantum meruit relief. PAC maintains that the only relationship which existed between plaintiff and PAC was the October 20 employment agreement and that that agreement was to be terminated on December 31, 1976, pursuant to a notice of termination effective June 30, 1976. PAC also contends that recovery in quantum meruit is intended to compensate plaintiff for the reasonable value of his services and that the court’s award was excessive.

From the record, it appears that the trial court properly concluded that the parties had, by mutual agreement, terminated the October 20 employment agreement and that the termination date of that agreement was May 31, 1976. Although the parties contemplated a commission agreement for the period beginning on June 1, 1976, the parties were unable to reach such an agreement. During the course of negotiations, PAC proposed a commission schedule for sales which plaintiff made. From the various proposed contracts in the record, it appears that plaintiff would be entitled to a draw against commissions in the amount of $7,000 per month, which sum was paid to plaintiff in early June 1976. Thus, from the record, we cannot say that the trial court erred in finding that, as a result of PAC’s conduct, plaintiff was entitled to recover the value of his services rendered from June 1, 1976.

Since the basis of recovery under quantum meruit is that it would be unjust to permit a defendant to retain a benefit from a plaintiff without compensating plaintiff, the measure of recovery is the reasonable value of plaintiff’s services. (Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App. 3d 834, 422 N.E.2d 86.) The trial court granted recovery to plaintiff in the amount of $95,497.14 as commissions for case I and case IV sales. In determining this amount, the trial court utilized the commission formula which PAC proposed during negotiations with plaintiff. Under the facts of this case, the trial court’s reference to the commission formula proposed by PAC is not an improper measure in which to determine the reasonable value of plaintiff’s services. Since the amount of damages is purely a factual issue, a court of review may not set aside the determination of damages unless it is contrary to the manifest weight of the evidence. (See Anderson v. Gewecke (1976), 36 Ill. App. 3d 170, 343 N.E.2d 673.) The basis for the trial court’s award of $95,497.14 is adequately supported by the documents which have been introduced at trial and, therefore, the award is not contrary to the manifest weight of the evidence.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McGLOON and GOLDBERG, JJ., concur.


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY KISER, Defendant-Appellant.
    First District (1st Division)
    No. 81-2188
    Opinion filed March 21, 1983.

      Frederick F. Cohn, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and Joseph L. Ponsetto, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

Following defendant’s arrest for possession of cocaine, he moved to quash the search warrant and suppress the evidence. The trial court denied defendant’s motions. After a bench trial, defendant was found guilty and sentenced to four years’ imprisonment.

On appeal, defendant contends that (1) the police officers’ initial contact with him constituted a seizure in violation of his fourth amendment right against unreasonable seizures; (2) the seizure of defendant’s baggage without probable cause violated his fourth amendment rights; (3) the information obtained from the Drug Enforcement Administration computer was unreliable; and (4) the trial court improperly denied defendant an evidentiary hearing to establish that the Drug Enforcement Administration computer information was unreliable.

We reverse.

On May 6, 1980, at 3:20 p.m., Stanley Kiser (defendant) arrived on a commercial airline flight from Fort Lauderdale, Florida. Drug Enforcement Administration (DEA) agent Bob Fulkerson and Chicago police officers Thomas Kinsella and Richard Powers were in the arrival area conducting surveillance for the purpose of detecting unlawful narcotics traffic. Defendant was the fifth or sixth passenger to deplane. He had two carry-on bags with him and was dressed casually in comparison to the other passengers on the business dominated flight. He walked at a slow pace down the concourse area toward the terminal. After stopping at two separate drinking fountains, he began walking at a somewhat faster pace to the Budget Rent-A-Car counter. After renting a car, he proceeded to the automatic exit doors.

Fulkerson and Powers walked alongside defendant as he left Budget. Defendant testified that as he reached the exit doors, a man grabbed his elbow, identified himself as a Federal agent and asked defendant if he could speak with him. At this point, Fulkerson and Powers were blocking the exit doors. All three men moved to an area adjacent to the escalators.

Defendant was asked to produce identification. He handed Fulkerson his driver’s license. Defendant was then asked to produce his rental car agreement, which he did. Eventually, his license was returned. However, after Officer Kinsella joined the surveillance team, defendant was again asked to produce his license as well as additional forms of identification.

After examining defendant’s license and the rental car agreement, Kinsella consulted with another agent, who had performed a computer search under the name of “Carl Kiser,” the name on the credit card which defendant had used. That search indicated that a “Carl Kiser” was a drug dealer but had no information pertaining to Stanley Kiser.

Defendant was then asked to open his baggage and refused. Kinsella testified that defendant’s voice was “nervous and shaky” and that he was visibly trembling during the questioning. Fulkerson informed defendant that the officer had reason to believe his baggage contained narcotics and that the bags were to be detained. Defendant’s license, rental car agreement, and luggage receipt were handed to defendant and he was told he could leave.

Defendant left the airport. A customs dog was brought to the baggage area. The dog reacted positively by biting and pawing defendant’s bags. A search warrant was obtained approximately five hours later. Cocaine was found in one of the bags and defendant was charged with possession of a controlled substance. 111. Rev. Stat. 1981, ch. 56V2, par. 1402.

The trial court denied defendant’s motion to suppress the evidence. He was found guilty and sentenced to a term of four years.

A seizure occurs whenever a police officer accosts an individual and restrains his freedom to walk away. (392 U.S. 1, 16, 20 L. Ed. 2d 889, 903, 88 S. Ct. 1868, 1877.) “Seizure” does not require physical restraint per se. If it is apparent from the circumstances that an individual is not free to ignore the officer and walk away, a seizure has occurred triggering fourth amendment protection. United States v. Pope (6th Cir. 1977), 561 F.2d 663, 668.

First, we must determine whether a seizure occurred when Agent Fulkerson and Officer Powers initially approached defendant and asked to see some form of identification. Such a determination is imperative because only the objective facts, known to an officer at the moment of the seizure, may be considered in deciding whether the particular intrusion was justified. (Terry v. Ohio (1968), 392 U.S.l, 21-22, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880.) A lesser standard would invite intrusions upon constitutionally guaranteed rights based upon nothing more substantial than inarticulate hunches. 392 U.S. 1, 22, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880.

In the present case, it is apparent that the trial judge found defendant’s testimony credible. The judge commented that the defendant approached the exit doors, Fulkerson and Powers asked him to stop, defendant stopped and they brought him to an area adjacent to the escalator. The trial court’s factual finding compels a legal finding that at the moment of the initial encounter, a seizure had occurred.

Moreover, the coercive circumstances surrounding the initial encounter and subsequent questioning demonstrate that the officers’ actions amounted to a seizure or investigatory stop.

Fulkerson testified that he and Officer Powers walked alongside defendant after he left Budget. Fulkerson identified himself as a Federal officer as defendant was about to step on the automatic door mat. At this point, Fulkerson testified that he was “standing in front of the door.” Thus, he was blocking defendant’s exit and defendant was not free to ignore his interrogator and walk away. Terry v. Ohio (1968), 392 U.S. 1, 33, 20 L. Ed. 2d 889, 912, 88 S. Ct. 1868, 1885-86 (Harlan, J., concurring); People v. DeLisle (1982), 104 Ill. App. 3d 297, 432 N.E.2d 954; United States v. Buenaventura-Ariza (2d Cir. 1980), 615 F.2d 29.

Further, we find that the agent’s and officers’ continual questioning and repetitive actions were, in reality, stalling techniques aimed at detaining defendant until they could obtain information from which to ascertain whether defendant was engaged in criminal activity. The examination, return, and re-examination of defendant’s driver’s license, rental car agreement, and three forms of identification by various officers undermine the State’s assertion that defendant was free to leave with his bags at any time. The encounter from its inception was an investigatory stop. Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. DeLisle (1982), 104 Ill. App. 3d 297, 432 N.E.2d 954.

Next, we must determine whether the investigatory stop of defendant was proper. Such a stop is proper if a law enforcement officer is able to point to specific and articulable facts which, taken together with rational inferences therefrom, reasonably warrant the intrusion of an investigatory stop. (Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880; People v. DeLisle (1982), 104 Ill. App. 3d 297, 299; Ill. Rev. Stat. 1981, ch. 38, par. 107-14.) The factors considered must distinguish the detained person from other travelers. (Reid v. Georgia (1980), 448 U.S. 438, 441, 65 L. Ed. 2d 890, 894, 100 S. Ct. 2752, 2754 (per curiam).) As stated above, only the facts known to the officer at the moment of the stop may be considered. Terry; United States v. Robinson (5th Cir. 1980), 625 F.2d 1211.

When defendant arrived at O’Hare Airport, Agent Fulkerson and Officers Thomas Kinsella and Richard Powers were present and observed defendant and other passengers as they deplaned. The same officer who made the investigatory stop in DeLisle was also present in this case. This court found that stop to be an arbitrary and oppressive interference with DeLisle’s right to privacy. (People v. DeLisle (1982), 104 Ill. App. 3d 297, 300, 432 N.E.2d 954, 957.) In the instant case, Agent Fulkerson formed the suspicion that defendant was engaged in drug trafficking based on observations which are analogous to those brought out in DeLisle. Fulkerson based his suspicion on the following facts: (1) Kiser arrived on a flight from a “source” city; (2) Kiser was the fifth or sixth passenger to deplane; (3) Kiser was casually dressed; (4) Kiser looked around cautiously as he deplaned; (5) Kiser initially walked down the terminal concourse at a “slow pace”; (6) Kiser later “walked at a somewhat faster pace”; (7) Kiser stopped at two water fountains; and (8) Kiser looked over his shoulder “3 or 4 times.”

The State urges that the conduct displayed by defendant was indicative of one engaged in narcotics trafficking. Further, it emphasizes that defendant’s behavior was observed by Fulkerson, a veteran of the DEA, and therefore reasonable ground for suspicion clearly existed. We disagree.

The fact that defendant was traveling from Fort Lauderdale cannot be regarded as suspicious. In DeLisle, we stated that the probability that any given passenger from a source city is a drug courier is infinitesimally small. (104 Ill. App. 3d 297, 299-300; accord, United States v. Andrews (6th Cir. 1979), 600 F.2d 563, 566-67 (the court’s experience with DEA agents’ testimony made it questionable whether there exists any city in the country which a DEA agent would not characterize as a source city).) Being one of the first passengers to deplane provides no support from which to base a reasonable suspicion. Any first-class passenger would be among the first to deplane. Further, where a flight is overbooked, a coach passenger may be moved to the first-class section by the airlines. Clearly, this fact does not distinguish a suspect from other travelers. In light of the fact that defendant was traveling from a popular vacation State, his casual dress cannot be considered a basis for arousing reasonable suspicion. Defendant walked slowly and then rapidly. Such walking manners can be hardly characterized as bizarre behavior, especially in an airport setting where travelers anticipate a reunion with family or friends. (DeLisle.) The fact that defendant never looked at the baggage claim area monitor is not unusual since defendant only had carry-on baggage.

It bears noting that here, as in DeLisle, Officer Kinsella testified that defendant was nervous and shaking during questioning. (104 Ill. App. 3d 297, 298.) Nervousness is a common reaction in such a coercive setting. During questioning, defendant was surrounded by three officers. At no time were less than two officers present. He had been informed that he was not under arrest at the time. However, Kinsella also testified that defendant was not free to leave after the computer information was received.

These facts when objectively considered do not distinguish defendant from other travelers. Therefore, we find that the investigatory stop was improper. Agent Fulkerson did not possess a reasonable and articulable suspicion that defendant was engaged in criminal activity. Because the investigatory stop of defendant was improper, the introduction of the evidence obtained following defendant’s unconstitutional seizure violated his fourth amendment rights. Defendant’s motion to quash the search warrant and suppress the evidence should have been granted.

In light of our reversal, we need not address the additional issues raised in this appeal.

For the foregoing reasons, we reverse the judgment of the circuit court of Cook County.

Judgment reversed.

GOLDBERG and CAMPBELL, JJ., concur.


author: JUSTICE GOLDBERG

text:
    JEANNE AIMONE, Plaintiff-Appellant, v. MORGAN M. FINLEY, Circuit Clerk, Defendant-Appellee.
    First District (1st Division)
    No. 82—1154
    Opinion filed March 21, 1983.
    Law Offices of Terry Sullivan, Ltd., of Rolling Meadows (Terry Sullivan and Nancy J. Nicol, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Randye A. Kogan, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Jeanne Aimone (plaintiff) filed a complaint for mandamus to compel Morgan Finley, clerk of the circuit court of Cook County (defendant), to allow plaintiff to examine the sealed court records relating to plaintiffs adoption. Defendant’s motion to dismiss the action was granted by the trial court. Plaintiff appeals.

Plaintiff was born on August 5, 1947. On or about September 10, 1947, she was adopted by Gerald and Virginia Aimone. Plaintiff seeks access to the sealed file relating to her adoption on the theory that she has legal right to inherit from the estates of her natural parents.

The Illinois Adoption Act provides (111. Rev. Stat. 1981, ch. 40, par. 1522):

“Upon motion of any party to an adoption proceeding the court shall, or upon the court’s own motion the court may, order that the file relating to such proceeding shall be impounded by the clerk of the court and shall be opened for examination only upon specific order of the court, which order shall name the person or persons who are to be permitted to examine such file. Certified copies of all papers and documents contained in any file so impounded shall be made only on like order.”

In In re Roger B. (1981), 84 Ill. 2d 323, 418 N.E.2d 751, appeal dismissed (1981), 454 U.S. 806, 70 L. Ed. 2d 76, 102 S. Ct. 80, the Illinois Supreme Court upheld the constitutionality of the above-quoted provision. In addition, the court held an adoptee must show “good cause” for the inspection of sealed adoption records. (84 Ill. 2d 323, 326.) The supreme court also characterized plaintiff’s wish to examine the adoption records as arising from “plaintiff’s desire to discover his natural identity,” which did not qualify as good cause. 84 Ill. 2d 323, 336.

Nevertheless, plaintiff contends in this court that her interest in the possible inheritance from her natural parents outweighs the policy considerations for keeping adoption files under seal and the legal bar to her inspection of the files deprives her of property without due process of law. We disagree.

Plaintiff has a statutory right to inherit from her natural parents. (See Ill. Rev. Stat. 1981, ch. IIOV2, pars. 2 — 1, 2 — 4; In re Estate of Tilliski (1945), 390 Ill. 273, 283, 61 N.E.2d 24.) However, the constitutional prohibition against deprivation of property can only attach when the right is vested which is “something more than a mere expectation ***.” (Talandis Construction Corp. v. Illinois Building Authority (1978), 60 Ill. App. 3d 715, 720, 377 N.E.2d 237, appeal denied (1978), 71 Ill. 2d 615.) An expectation of inheritance does not constitute a vested right. (Jennings v. Capen (1926), 321 Ill. 291, 296-97, 151 N.E. 900; see also In re Estate of Leichtenberg (1956), 7 Ill. 2d 545, 551-52, 131 N.E.2d 487.) Therefore, plaintiff has failed to establish a violation of due process.

In In re Roger B., the supreme court explained the potent policy interests which are promoted by the sealing of adoption records. Included in those interests are the facilitation of the adoption process by maintaining anonymity of the natural parents, the right to privacy of the natural parents, and the integrity of the new adoptive family. 84 Ill. 2d 323, 329-33.

We must reject plaintiff’s argument that there could be no violation of the privacy rights of natural parents because they placed plaintiff for adoption before the enactment of the law sealing adoption records. The natural parents in In re Roger B. apparently placed the plaintiff there for adoption in 1949, also prior to the enactment of the statute concerning sealing of adoption records. Nevertheless, the court there found the privacy interest of the natural parents was not only a relevant factor but was critical in determining the rights of the parties. See 84 Ill. 2d 323, 329.

We simply do not consider the expectation of a possibility that an adopted person may inherit from her natural parents is sufficient cause to open sealed adoption files. If such were the case, every adopted person could circumvent the statute by asserting his right to inherit. The statute would become meaningless and the interests sought to be furthered by the legislature would be frustrated.

Plaintiff contends the decision in In re Roger B. is not controlling here because it is limited only to the issue of constitutionality of the above-quoted portion of the adoption statute. We reject this argument. On the contrary we find the opinion in In re Roger B. actually transcends the issue of constitutionality and considers the broad background of the policy considerations in protecting the privacy of both the adopting parents and also of the natural parents.

Additionally, as an independent ground for affirmance here, we conclude mandamus is not an appropriate remedy in the instant case. Mandamus is legally proper only where a public official is under a clear obligation to perform a specific duty and “there is a clear right to the requested relief.” (In re Claudia K. (1982), 91 Ill. 2d 469, 476, 440 N.E.2d 78.) Under the statute in question, the records are to remain sealed unless there is a judicial determination that the files should be opened. Therefore, the clerk of the circuit court cannot have a clear legal duty to open the files at the mere request of the plaintiff. Furthermore, the standard of showing “good cause” as outlined in In re Roger B. requires a case-by-case analysis, which implicitly negates the possibility of a clear duty to act resting upon the clerk of the court as respondent here.

Therefore, we conclude the issues raised by plaintiff are settled by the supreme court in In re Roger B. The supreme court expressly held “the trial court did not abuse its discretion in concluding that [plaintiff’s] desire to obtain release of the records should not prevail over the potential infringement of the rights of other parties.” 84 Ill. 2d 323, 336-37.

For the reasons the judgment appealed from is affirmed.

Judgment affirmed.

McGLOON and CAMPBELL, JJ., concur.


author: JUSTICE LINN

text:
    JAMES “DERRY” RAY, Plaintiff-Appellee and Cross-Appellant, v. THE ILLINOIS RACING BOARD et al., Defendants-Appellants and Cross-Appellees.
    First District (4th Division)
    81—1184
    Opinion filed March 24, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Edward M. Kay, Assistant Attorney General, of counsel), for appellants.
    John M. Cutrone, of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County affirming in part and reversing in part a decision of defendant, the Illinois Racing Board, that suspended the occupation license of plaintiff, James “Derry” Ray, for 270 days, imposed on plaintiff a fine of $6,000, and ordered forfeiture of the purse money won by two of plaintiff’s horses in which laboratory tests had revealed the presence of a prohibited drug. The Illinois Racing Board appeals the circuit court’s reversal of the civil penalty, the $6,000 fine; plaintiff cross-appeals the circuit court’s affirmance of the suspension of his occupation license; neither party appeals the affirmance of the forfeiture of the purse money won by plaintiff’s horses.

The issues presented for review are (1) whether the civil penalty was imposed by the Racing Board in violation of plaintiff’s due process rights because no fine had been recommended by the Racing Board stewards who held the first hearing on the matter; and (2) whether the harness racing rule for violation of which plaintiff was penalized is unconstitutional because it imposes liability without fault.

We affirm that portion of the circuit court’s order that upholds the suspension of plaintiff’s occupation license and reverse the portion that reverses the civil penalty.

Facts

Plaintiff is licensed by the Illinois Racing Board as a driver, trainer, and owner of harness horses. In November and December, 1978, the Illinois Racing Board laboratory issued three reports indicating that an illegal drug, despropionyl fentanyl, was present in the post-race urine sample taken from two horses trained by plaintiff. The drug had been detected in Craig’s Champ on November 1, 1978, and November 17, 1978, and in Barker Black on November 4, 1978, after the horses had raced at Balmoral Park. Despropionyl fentanyl is a metabolite of fentanyl, a controlled substance commonly known as sublimaze, a powerful stimulant and analgesic.

A hearing on the matter was held by the Illinois Racing Board stewards at Balmoral Park after these reports were issued. The stewards found that plaintiff had violated Illinois Racing Board Harness Rule 21.19, which provides:

“Every owner, trainer, groom or caretaker must guard or cause to be guarded each horse owned, trained or attended by him in such a manner as to prevent any person from administering to such horse any chemical substance in violation of these rules.”

On February 14, 1979, the stewards ordered that plaintiff be denied the privilege of harness racing under the temporary status he had been granted during their investigation and hearing and recommended to the Illinois Racing Board that his application for a 1979 license be denied and no 1979 license application accepted for 270 days. They also ordered the purse money won by the drugged horses forfeited and returned to the stewards for redistribution.

On February 20, 1979, plaintiff requested a de novo hearing on the matter before the Illinois Racing Board. The requested hearing was held before a hearing officer on May 8, 1979, and final arguments were heard by the full board on June 14, 1979. On June 14, 1979, the Board issued a written order finding that plaintiff had violated the rule quoted above by failing to guard the horses in that he routinely left them unattended for five to six hours every day, although he realized that security at Balmoral Park had been lax for several years and he had observed unguarded entrances through which any stranger could enter the barn area. The Board imposed a one-year suspension of his occupation license and a $2,500 civil penalty for each of the three violations, with the suspensions to be served concurrently. The Board also ordered that the purse money be forfeited and returned to the stewards for redistribution.

On July 19, 1979, plaintiff filed a complaint for administrative review of the Board’s decision. (111. Rev. Stat. 1979, ch. 110, par. 264 et seq.) A hearing was held in the circuit court of Cook County on October 15, 1979, during which the trial judge stated that the stewards had no authority to impose a fine; the Illinois Horse Racing Act of 1975 gave authority to impose a fine only to the Board itself. (El. Rev. Stat. 1979, eh. 8, par. 37 — 9(1).) The trial judge remanded the case to the Racing Board “for findings, if any, as to a reason for imposing an increased punishment.”

The Board’s attorney thereupon filed a memorandum setting forth its position that the hearing before the Board had been a hearing de novo rather than a hearing on the record adduced at the steward’s hearing, and that such a de novo hearing should be had with the same effect as if no prior action had taken place. The penalty imposed by the stewards was therefore irrelevant, since the Board was limited to consideration of the evidence presented in the de novo hearing in determining what penalty should be imposed on plaintiff.

On November 15, 1979, the Board held another hearing, at which no additional evidence was presented but legal arguments were made. That day, the Board issued an order that again found plaintiff had violated Harness Rule 21.19, but “after reconsideration of this matter and of the mitigating factors *** including the fact that Ray had no prior major offenses involving medication and his relative youth,” imposed a reduced penalty consisting of a 90-day suspension and a $2,000 fine for each violation and forfeiture of the purse money. The suspensions were to be served consecutively, with credit for the 10 days already served.

The memoranda, transcript, and order were filed in the circuit court as a supplemental answer by the Board, and a hearing was held on April 14, 1981. The court affirmed the 270-day suspension but reversed the $6,000 fine on the authority of Burton v. Civil Service Com. (1979), 76 Ill. 2d 522, 394 N.E.2d 1168, which held that an administrative department disciplining an employee could not increase the punishment for an incident of misconduct after it had once imposed a final penalty for the same misconduct. The Board appeals the reversal of the civil penalty and plaintiff cross-appeals the affirmance of the suspension of his license.

Opinion

The Elinois Racing Board argues on appeal that its imposition of a civil penalty against plaintiff should have been affirmed because the Board “acted according to the authority vested in it by the Elinois Horse Racing Act.” We agree. Where there is a statutory grant of authority to an administrative agency, there is a corresponding grant of power to do whatever is reasonably necessary to exercise that authority. (Owens v. Green (1948), 400 Ill. 380, 81 N.E.2d 149; Ralston Purina Co. v. Pollution Control Board (1975), 27 Ill. App. 3d 53, 325 N.E.2d 727; A.E. Staley Manufacturing Co. v. Environmental Protection Agency (1972), 8 Ill. App. 3d 1018, 290 N.E.2d 892.) In this case the applicable statute, the Illinois Horse Racing Act of 1975, created the Illinois Racing Board (Ill. Rev. Stat. 1979, ch. 8, par. 37 — 2), gave it “full power to promulgate reasonable rules and regulations for the purpose of administering the provisions of this Act and to prescribe reasonable rules” (111. Rev. Stat. 1979, ch. 8, par. 37 — 9(b)), and gave it the authority to take appropriate disciplinary action (111. Rev. Stat. 1979, ch. 8, par. 37 — 9(d)). The Horse Racing Act also provides that both the Board and “the steward or judges at a race meeting” have the power to revoke or suspend an occupation license. Ill. Rev. Stat. 1979, ch. 8, par. 37 — 16(a).

If a steward suspends an occupation license, “the occupation license of the person shall be suspended pending a hearing of the Board” (111. Rev. Stat. 1979, ch. 8, par. 37 — 16(b)), and the “person affected *** may request a hearing before the Board within 5 days after receipt of notice of the suspension.” (111. Rev. Stat. 1979, ch. 8, par. 37 — 16(c).) We think this language clearly indicates that the suspension of a license by the stewards is not a final disciplinary action, but rather is an interim action “pending a hearing of the Board.” Accordingly, Burton v. Civil Service Com. (1979), 76 Ill. 2d 522, 394 N.E.2d 1168, the precedent on which plaintiff relies and on which the trial judge based his order, is inapposite because in that case a final penalty was later increased, whereas in the case at bar the initial recommendation by the stewards was not a final penalty.

Our conclusion is bolstered by the statutory hearing provisions of the Horse Racing Act (Ill. Rev. Stat. 1979, ch. 8, par. 37 — 16(d) through (k)), which describe a full hearing including the taking of evidence and representation of parties by counsel, at the conclusion of which “the Board shall make its findings which shall be the basis of the *** action taken by the Board.” (Ill. Rev. Stat. 1979, ch. 8, par. 37 — 16(k).) It is clear that the Board is not to be bound by the action of the stewards in making its decision at the conclusion of such a hearing.

Finally, the rules of the Illinois Racing Board governing appeals and enforcement proceedings, which were promulgated pursuant to section 37 — 9(b) of the Horse Racing Act, provide: “Any person aggrieved by- a decision, order, ruling, recommendation or other action of the judges or stewards of any race meeting may as a matter of right request a hearing before the Board. Such a hearing shall be a proceeding de novo.” (Emphasis added.) (5 Ill. Reg. 10876, sec. 204.20(a) (1977).) To hold a hearing de novo means “ ‘trying the matter anew the same as if it had not been heard before and as if no decision had been previously rendered.’ ” (Creamer v. Police Pension Fund Board (1979), 69 Ill. App. 3d 792, 796, 387 N.E.2d 711, 714, quoting 2 Am. Jur. 2d Administrative Law sec. 698, at 597 (1967).) Such a hearing should be held with the same effect and intent as if no previous action had taken place. (Grab It Here Package Liquor Store, Inc. v. Illinois Liquor Control Com. (1964), 53 Ill. App. 2d 31, 202 N.E.2d 357.) “The de novo hearing is a new adversary proceeding which is neither dependent upon, nor limited by, the proceedings below.” (Local Liquor Control Com. v. Illinois Liquor Control Com. (1978), 59 Ill. App. 3d 1, 5, 374 N.E.2d 1298, 1301.) Accordingly, we find no merit in plaintiff’s argument that the Board was bound by the recommendation of the stewards who held the initial hearing on the matter and we reverse the portion of the trial court’s order that reverses the Board’s imposition of a fine on plaintiff.

We also find plaintiff’s second claim of error to be lacking in merit. Plaintiff claims that Harness Rule 21.19, under which he was penalized, is unconstitutional because the “effect of this rule is precisely the same as that of a predecessor statute previously held unconstitutional by the Illinois Supreme Court” in Brennan v. Illinois Racing Board (1969), 42 Ill. 2d 352, 247 N.E.2d 881. The rule applied in the case at bar provides:

“Every owner, trainer, groom or caretaker must guard or cause to be guarded each horse owned, trained or attended by him in such a manner as to prevent any person from administering to such horse any chemical substance in violation of these rules.”

The rule invalidated by the court in Brennan provided:

“The trainer shall be the absolute insurer of and be responsible for the condition of horses entered by him in a race regardless of the acts of a. third party. Should chemical or other analysis of saliva or urine samples, or other tests, show the presence of any drug of any kind or description, the Board may in its discretion suspend or revoke the license of the trainer, the stable foreman in charge of the horse, the groom, and any other person shown to have had the care or attendance of the horse.” (Emphasis added.) (111. Rev. Stat. 1967, ch. 8, par. 37c — 3.)

This rule was held to violate the trainer’s right to due process of the law because making him an absolute insurer of the condition of his horses created an irrebuttable presumption that destroyed his right to offer evidence to establish his innocence.

In our view, plaintiff’s claim that these two rules are “precisely the same” is patently incorrect. The rule at issue in this case creates no irrebuttable presumption; it describes the action that must be taken by one who is responsible for guarding a race horse. If the owner, trainer, groom, or caretaker were able to demonstrate that he had guarded his horse as required by the rule, he could avoid liability for the misdeeds of another. The evidence presented in this case indicated that plaintiff, by routinely leaving them unattended for five to six hours every day, had failed to guard his horses in such a manner as to prevent the administration of a prohibited drug to them.

The Brennan court stated, “Under the police power reasonable requirements may be imposed, of course, to protect the public against fraud and deceit, but they may not be arbitrary, and they must bear a real and substantial relation to the public welfare.” (42 Ill. 2d 352, 354, 247 N.E.2d 881, 882.) We think the rule in question here meets this standard: the requirement is reasonable, it is designed to protect the public against fraud, and it creates no irrebuttable presumption of culpability. That plaintiff in this case failed to demonstrate his innocence does not establish the proposition that it would be impossible to do so under this rule if one were, in fact, innocent.

For all of the reasons discussed above, we find plaintiff’s arguments unpersuasive. We therefore affirm the order of the Hlinois Racing Board imposing on plaintiff a suspension of 270 days and a fine of $6,000. That portion of the circuit court’s order that reverses the fine is accordingly reversed.

Affirmed in part; reversed in part.

JOHNSON and JIGANTI, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD LANASA, Defendant-Appellant.
    First District (1st Division)
    No. 81—2305
    Opinion filed March 31, 1983.

      Gordon H. Berry, of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Larry J. Crown, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant Donald Lanasa was convicted in a bench trial of home invasion, rape and two counts of deviate sexual assault and was sentenced to four concurrent 30-year terms for the four convictions. On appeal, defendant raises the following issues: (1) whether the evidence established his guilt beyond a reasonable doubt; (2) whether he was denied his right to effective assistance of counsel; and (3) whether the trial court erred in sustaining an objection to testimony by a policy officer and concerning a statement made by the complaining witness.

At trial, the first witness for the State was the victim. She stated that on August 10, 1980, she lived with her 12-year-old daughter at her parents’ home in Cicero, Illinois. She testified that at approximately 3 a.m. on that morning, she was awakened by a man who was standing at the foot of her bed. The man told the witness to keep quiet. The victim extended her arm and felt a blade which felt like a steak knife. According to the prosecutrix, light from a neighbor’s home illuminated her bedroom. The victim stated that the light was “like a 500 watt bulb” and that it “lights up everything.” The intruder told the victim to turn over and put her face in the pillow. The victim was then instructed to disrobe. The intruder then had sexual intercourse with the prosecutrix. According to the victim, the intruder then performed a deviate sexual act with her. Subsequently, the intruder turned on the light in the bedroom. The victim stated that she had an opportunity to view the intruder’s face and, on one occasion, viewed his face for approximately one-half minute, at which time the intruder had wrapped a bath towel around his head. The victim then identified defendant as the man who was in her home on the morning of August 10, 1980.

When defendant saw the victim looking at him, defendant jumped onto her back and placed the knife to her throat. The intruder then asked the prosecutrix whether she had any money. The witness stated that she had about $3 in her purse or jeans. Defendant then left the bedroom and went to the kitchen. According to the victim, defendant returned to the bedroom where he inquired as to whether the victim had a telephone. After ascertaining that there was a telephone, defendant then cut the telephone wire in the dining room. Defendant then stated to the victim that “We’re going to do this again; it was fun.” He turned off the bedroom light and had a second act of intercourse with the victim. Afterwards, defendant forced the victim at knifepoint to perform a deviate sexual act. The prosecutrix lay on the bed for 10 minutes after she heard defendant leave the home. She stated that she then awakened her parents.

According to the victim, her father telephoned the Cicero police and the officers arrived at approximately 5 a.m. The victim was taken to a hospital where blood and semen samples were taken. She stated that she told the officers that the intruder was white, 5 feet 9 inches tall, 180 pounds, 20 to 25 years old and wore blue jeans, a T-shirt with a white bottom and black top and hard-soled shoes. She also told the officers that the assailant had dark hair, was clean-shaven and had a bandage on his right arm. The witness denied telling the police officers that she could not describe the intruder and also denied that she told the police that she did not look at the intruder. She testified that she was taken from the hospital to the police station and that she did not recognize any of the 50 to 75 photographs which she was shown.

The victim testified that on September 20, 1980, she identified defendant in a lineup at the Berwyn police station. She stated that she recognized defendant both by his physical appearance and by his voice. Subsequent to the lineup, she viewed a group of photographs and selected defendant’s photograph from the group. She stated that in the photograph, defendant did not have a mustache. According , to the witness, she was shown a red napkin. She informed the police officers that she had a napkin like the one shown to her at her home and, after a check of her home, she told the officers that the red napkin was missing from her home.

Detective Earl Thul of the Cicero police department stated that on August 10, 1980, he and his partner, Detective Robert Wilson, took the victim to the police station for questioning. He stated that the prosecutrix was unable to identify any of the photographs which she was shown. Thul stated that Detective Wilson obtained a statement from the victim concerning her version of the events of the early morning hours of August 10. Thul stated that he was aware that the Cicero police department was engaged in some type of surveillance operation, but subsequently learned that defendant was the subject of the surveillance operation. Thul stated that he did not know whether defendant’s photograph was in the mug book which was shown to the victim. The witness testified that his involvement with the case ended after he prepared a written report based upon his interview with the victim.

Detective Leonard Rutka of the Cicero police department and Detective Frank Marzullo of the Berwyn police department testified concerning the surveillance of defendant. Marzullo stated that defendant had been under police surveillance for approximately 10 weeks preceding defendant’s arrest on September 20, 1980, and that the surveillance involved several law enforcement agencies including the Cicero and Berwyn police departments. On August 9, 1980, Marzullo stated that he observed defendant with a bandage on his hand at the time defendant left the emergency room at Hines Hospital. Marzullo testified that in the early morning hours of August 10, 1980, he was engaged in the surveillance of defendant. He stated that at 2:30 a.m., he observed defendant exiting a tavern near Cermak Road and Central Avenue in Cicero. He stated that the last time he saw defendant on that morning was when he observed defendant driving eastbound on Cermak Road. Marzullo testified that the following day he learned that a rape had occurred between the hours of 3:30 and 5 a.m. on August 10. Detective Rutka testified that on August 11 or 12, 1980, he was assigned to investigate the rape of the victim. He stated that the instant offense had the same “M.E.R.O.” as other offenses believed to have been committed by defendant. He testified that he did not show defendant’s photograph to the victim because defendant was a suspect and that if defendant was apprehended, the police wanted a live lineup. He also stated that with the police surveillance, they had hoped to apprehend defendant during the commission of a crime. Rutka stated that the surveillance of defendant ended on September 20 with the arrest of defendant.

Rutka also testified concerning the lineup identification of defendant by the victim on September 20, 1980. He stated that initially a “voice lineup” was held and that the victim “almost passed out” when she heard defendant speak. The victim stated that she recognized defendant by “his height, his build, his eyes, the way he looked.” Immediately after defendant was identified by the prosecutrix in a lineup, Rutka showed the victim photographs of defendant. The victim stated that there was something different about defendant. The victim then identified defendant’s photograph and stated that defendant had a mustache and was light complected. Defense counsel then asked Rutka: “You said that, or she said that?” Rutka responded that “She wasn’t so sure; she viewed the lineup. She wasn’t so sure that was the man that raped her.” The court sustained an objection by the State to the foregoing. Rutka then testified that the victim stated that “she was sure that was the man but there was something different about him; even though she said something was different, she said that was the man.”

Detective Anthony Cutrone of the Berwyn police department testified that at the time defendant was arrested on September 20, the police recovered a red table napkin from the rear seat of defendant’s automobile. He stated that the victim was shown this napkin after the identification of defendant by the victim on September 20. The victim told the officers that she had acquired such a napkin at a restaurant. After checking her home, she informed the police that the napkin was missing.

A forensic scientist testified that he analyzed the underwear of the complaining witness which she gave to the police after she was taken to the hospital following the rape. The witness also analyzed the saliva and blood of the victim and defendant and compared the results to the findings based upon his analysis of the victim’s underwear. The witness stated that, in his opinion, the seminal fluid recovered from the victim’s underwear could have been that of defendant. He stated that the secretions found in the victim’s underwear was compatible with defendant’s blood type.

Defendant’s mother testified for the defense. She stated that defendant did not own any T-shirts like the one described by the victim. She also stated that she had acquired the napkin at a restaurant in Itasca, Illinois, and that the napkin was left in the automobile. She also stated that defendant is 6 feet 1 inch tall and weighs about 200 pounds.

The court found defendant guilty of rape, home invasion and two counts of deviate sexual assault. Defendant was sentenced to four concurrent terms of 30 years based upon the four convictions. Defendant appeals.

Defendant first argues that the State failed to establish defendant’s guilt beyond a reasonable doubt. In particular, defendant maintains that the State failed to establish his identity as the intruder in the victim’s home. Defendant points to the discrepancy between his height and weight as described by the victim and as described by the mother of defendant. He also argues that the certainty of the victim’s identification is put into doubt because the prosecutrix requested to view photographs after the lineup.

In a bench trial, the court is the trier of fact. (People v. Williams (1981), 96 Ill. App. 3d 8, 420 N.E.2d 710.) Accordingly, the credibility of the witnesses, the weight to be afforded their testimony and the inferences to be drawn from the testimony are matters for the trial court. (People v. Lofton (1977), 69 Ill. 2d 67, 370 N.E.2d 517.) A court of review will not substitute its judgment for the trier of fact on questions involving the weight of the evidence and the credibility of witnesses and will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of defendant’s guilt. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) In addition, the testimony of a single, credible eyewitness who had the opportunity to observe the defendant under circumstances which would permit a positive identification is sufficient to convict, even though the testimony of the eyewitness is contradicted. People v. Sangster (1982), 91 Ill. 2d 260, 437 N.E.2d 625.

In the instant case, the victim identified defendant at a lineup and the record indicates that she identified defendant based upon his voice. At the time of the lineup, she informed the police officers that there was something different about defendant and, upon viewing photographs, stated that defendant did not have a mustache in the photograph. The victim also identified a red table napkin which was found in the rear seat of defendant’s automobile. Other evidence placed defendant in the vicinity of the victim’s home at approximately the same time as the offenses. The victim stated that the intruder’s right hand was bandaged and Detective Marzullo stated that on the day before the offenses, he observed defendant leave a hospital with his hand in a bandage. Finally, the forensic scientist’s testimony indicated that the seminal secretions recovered from the complainant’s underwear could have originated from defendant. Our review of the record in the instant case leads us to conclude that the evidence is not so improbable as to raise a reasonable doubt as to defendant’s guilt.

Defendant next argues that he was denied effective assistance of counsel. Defendant maintains that the record discloses that defense counsel failed to establish a proper rapport with the trial judge because defense counsel requested a continuance because counsel had a scheduling conflict. Defendant also asserts that defense counsel was unprepared for trial because counsel had not obtained certain discovery material from the State.

The test for determining whether defendant was denied his right to effective assistance of counsel is whether defendant’s attorney was actually incompetent and caused substantial prejudice to defendant such that the outcome of the case was probably changed. (People v. Talley (1981), 97 Ill. App. 3d 439, 422 N.E.2d 1084.) In evaluating the quality of representation afforded defendant, it is necessary to examine the totality of counsel’s conduct at trial. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.) In the instant case, it does not appear from the record that defendant was denied his right to effective assistance of counsel. A review of the record discloses that counsel was sufficiently familiar with the case to provide adequate representation of defendant. Counsel made objections to testimony, adequately cross-examined witnesses and made appropriate motions. The mere fact that counsel had a scheduling conflict with other cases does not necessarily indicate that counsel was unprepared for trial, especially where, as in this case, the record indicates the contrary.

Defendant’s final contention is that the trial court erred in refusing to overrule an objection made by the State during the cross-examination of Detective Rutka. Defense counsel was questioning Rutka as to why the victim was shown photographs following her identification of defendant in the lineup. Rutka stated that after she identified defendant, the victim stated that “There is something a little bit different about this guy.” When she was asked what the difference was, the victim responded that “He’s got a mustache and he was light complected.” Counsel asked Rutka “You said that or she said that?” Rutka responded “She wasn’t so sure; she viewed the line-up. She wasn’t so sure that was the man that raped her.” An objection to the foregoing was sustained. Counsel then asked Rutka “Did you tell her she was sure that was aman [sic] or she wasn’t sure?” Rutka stated that “She said she was sure that was the man but there was something a little different about him; even though she said that was the man.” Defendant maintains that the objection was improperly sustained because testimony in the form of an opinion which is otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. See Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322.

Contrary to defendant’s assertion, the trial court did not state the reason for sustaining the State’s objection to the question. It does not appear from the colloquy that the court sustained the objection because it was opinion testimony; rather, it appears that the objection was sustained because Rutka’s answer was not responsive to the question. The question sought to determine whether it was Rutka or the victim who stated that the difference in defendant’s appearance was that “he’s got a mustache and he was light complected.” Therefore, we hold that there was no error in the trial court’s sustaining the objection to the question by defense counsel.

Accordingly the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and McGLOON, J., concur.