author: JUSTICE ROMITI

text:
    JACK FROST SALES, INC., Plaintiff-Appellee, v. HARRIS TRUST AND SAVINGS BANK, Trustee, et al., Defendants-Appellants.
    First District (4th Division)
    No. 81-13
    Opinion filed January 28, 1982.
    Rehearing denied April 26, 1982.

      Sapoznick, Sheridan & Freidin, of Chicago (Robert P. Sheridan, of counsel), for appellants.
    Boodell, Sears, Sugrue, Giambalvo & Crowley, of Chicago (James L. Donnelly, Jr., and Greg A. Kinczewski, of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff allegedly lost an opportunity to sell its lease on a building because the landlords refused to agree to an assignment. It filed suit against the landlords for both damages sustained from the loss of the sale and damages sustained by being forced to continue operating in the location. The jury found for the plaintiff and defendants appeal. We find that the jury could reasonably have found that defendants did refuse or at least fail to consent to the lease. We also find that there was some evidence from which a jury could possibly conclude plaintiff did have an assignee on the day in question but that the court erred in refusing to instruct the jury that for a consent to an assignment, there had to be an assignee to receive the lease. Finally and most importantly, we find that there was no evidence from which the jury could determine that the assignee was commercially reasonable. Accordingly, we reverse and render judgment for the defendants.

The property at issue was, at the time in question, held in a land trust for various members of the Cuneo family. Francis J. Cuneo (Cuneo) managed the property. The plaintiff is a corporation which leased and operated a bar on Rush Street in Chicago called The Store. The building has now been demolished and a high-rise called Newberry Plaza has been built in its place. (After the attempted sale which is the subject of this litigation plaintiff sold its lease to the developers for $13,700.) On July 19, 1972, plaintiff entered into an agreement with John Barnes individually and for and on behalf of a corporation to be formed for the sale of the tavern business and for certain specified personal property.

The contract contained the following material conditions:

“7. Liquor License & Lease. This sale is conditional upon the approval thereof by all necessary agencies and upon the issuance thereof to the Purchaser or the corporation to be formed of an appropriate liquor license or licenses. An application for said liquor license for the sale of liquors, wines and beers by the Purchaser or the corporation to be formed shall be made with all diligence. Any lack of diligence on the part of the Purchaser or the corporation to be formed in prosecuting such application shall constitute a default hereunder.
Further, this sale is conditional upon the Purchaser or the corporation to be formed securing an assignment of the remaining leasehold interest of the Seller from the Lessor of said premises of a lease agreement dated June 23, 1965, or the negotiation of a new lease agreement with said Lessor.
8. Pending issuance or denial of an appropriate liquor license to the Purchaser or the corporation to be formed by appropriate governmental authorities and the assignment of the Seller’s remaining leasehold interest in the premises by the lessor or the negotiation of a new lease in the premises with the said lessor, the monies deposited under this agreement shall be held in escrow by the Chicago Title & Trust Company, upon the following terms:
# # #
(b) If an appropriate liquor license is denied to the Purchaser or the corporation to be formed or if there is a failure of assignment of the Seller’s remaining leasehold interest from the said lessor or a failure of the Purchaser or the corporation to be formed to secure a new lease agreement upon said premises because of any act or omission or other fault of the Purchaser or the corporation to be formed, the Purchaser shall forfeit, as liquidated damages, all monies deposited under this agreement and upon satisfactory proof to the escrow agent of such denial of disapproval, the escrow agent shall forthwith pay over to the Seller the purchase money held by it and the escrow agent shall thereupon be discharged from all liability therefor, and all rights of the Purchaser and the Seller under this agreement shall thereupon terminate.
(c) If an appropriate liquor license is denied to the Purchaser or the corporation to be formed or if an assignment of the Seller’s remaining leasehold interest in said premises to the Purchaser or the corporation to be formed is disapproved by the said lessor or alternatively, if there is no new lease agreement concluded, and if such denial, disapproval or failure is not due to any act or omission or other fault of the Purchaser or the corporation to be formed, then upon satisfactory proof thereof to the escrow agent and the Seller both the escrow agent and the Seller shall forthwith pay over to the Purchaser the purchase money held by them, and the escrow agent and the Seller shall thereupon be discharged from all liability therefore, and the rights of the Purchaser and the Seller under this agreement shall thereupon terminate.
# # #
10. Seller shall permit Purchaser a reasonable opportunity to inspect or have inspected, the business records and books of said business dealing with The Store. If a review of said records discloses that gross sales for the past fiscal year does not equal or exceed $200,000.00 then Purchaser shall have a right to terminate this agreement and all monies paid upon the purchase price shall be returned to the Purchaser by the escrow agent and the Seller.”

The only issues before this court are (1) whether the defendants refused to assign the lease to the alleged purchasers and (2) whether, if he did, this refusal was unreasonable, i.e., whether plaintiff had carried its burden of producing a commercially reasonable purchaser. While there were other witnesses who testified as to such matters as damages sustained, only the testimony of Anders Doe, president of plaintiff, William Serpico, the alleged purchasers’ attorney, Barry Holt, the plaintiff’s original attorney, Francis J. Cuneo, John Barnes, Theresa Bornes and Margerie Bornes, the three stockholders of the would-be purchaser, is material to the consideration of the issues before this court. Doe, Serpico and Holt were all called by the plaintiff; the others by the defendants.

Anders Doe, the president of Jack Frost, testified that the bar was losing money in 1972. It was in bad financial condition. Accordingly, it decided, in April of that year, to sell the business. It found two purchasers, John Barnes and Margerie Bornes. They were to pay $60,000 for the business, $30,000 to be paid into escrow immediately; the balance to be paid upon the conclusion of the deal. It was in fact agreed that if the remainder was paid within 90 days of closing of the transaction, then the agreed purchase price would be reduced by $5,000. The witness also executed a bill of sale agreeing to give good title and sell to buyers a 25-ton air conditioner, although the lease provided that all air conditioning equipment whether placed on premises at time of lease or thereafter should be considered as part of the premises and belonging to the lessor.

Late in August or early in September, Doe contacted Cuneo to try to secure his consent to an assignment of the lease. Cuneo said he was not going to consent to the assignment, that “there was another deal pending and that we didn’t have a deal.”

William Serpico, an attorney, was contacted by the purchasers to arrange both the purchase of The Store and the incorporation of the business. Serpico drafted the final purchase contract. He did not remember if the earlier contract provided for an option for a new lease. It could have. He did not remember if he drafted any other contract before the one his client finally signed. He testified that after the agreement was signed and executed he organized the corporation. The certificate of incorporation was issued. The stated capital was merely $1,000. There had not been any activity or capitalization in the account. He could not remember if the $1,000 was paid into a certain account, or if the corporation ever had any money. It never got into business.

After the certificate of incorporation was issued, Serpico and Holt opened up the escrow account. They then attempted to conclude the deal, the next step being to secure the assignment of the sellers’ leasehold interest. Serpico contacted Cuneo by telephone to set up a meeting; he probably called Cuneo’s office, but he did not remember when this took place.

They had a meeting face to face sometime in July or August. It took place in Cuneo’s office. Margerie Bornes, Theresa Bornes, John Barnes, Victor Goulet, Barry Holt, the witness and Cuneo were all there. Serpico did not remember if he arrived with Barry Holt. He did not know if his clients arrived before him. Most likely they came to his (Serpico’s) office. He did not know if the meeting started before he arrived. He did not “expect” that his clients would have started without him even if they went there before him. He did not recall if they sat in a waiting room of some kind.

Serpico had no recollection of any conversations about the lease other than what his stated purpose was. He was attempting to secure an assignment of the remaining term of the lease or negotiate a more favorable lease on his clients’ behalf. He told Cuneo they were interested in purchasing the business and the condition of the purchase would be to get an assignment, and they were prepared to take an assignment of the lease. Serpico did not remember if he discussed a five year option. He did not have a specific recollection of the terms discussed with Cuneo. He had no recollection of anything that was said between his clients and Cuneo.

Serpico could not remember if he ever specifically said, “Will you give me an assignment.” He also could not remember if Cuneo ever specifically said, “I will not give you an assignment.” There was some conversation pertaining to the construction and erection of a building on the property which foreclosed any prospect of renegotiating the lease. Serpico did not remember any specifics other than Cuneo did not agree to assign the lease.

There was some question as to the financial ability of his clients to be responsible for the undertaking. Around the time of the meeting Serpico forwarded a resume to Cuneo. This resume was introduced into evidence. It showed that Barnes, who would own 49$ of the shares of the corporation and be its president, had worked in seven Playboy or Al Hirt Clubs from 1961-1972 as some form of manager. Margerie Bornes would be the majority stockholder and the principal financial source. She had a AAA rating in Dun & Bradstreet. Other information given about her in the resume was, according to Bornes herself, a “pipedream.”

Holt and Serpico left the meeting together. His clients also left at the same time. Serpico later heard either from Holt or Goulet that there would be no assignment. Serpico then called Holt and told him that since his clients could not perform, they wanted their money back. Serpico also wrote a letter stating that his clients at all times had been ready, willing and able to proceed to perform their obligation under the agreement. (Defendants stipulated to this introduction into evidence.) Serpico also testified, without objection, that his clients wanted the deal and were going to take it as the contract required them to even if they did not get a longer lease.

Over defendants’ objection, Serpico was again called by plaintiff in rebuttal. He testified that his clients never instructed him they were not interested in purchasing The Store unless there was a five-year option on the lease. He did not remember that his clients ever told Cuneo they were not interested in purchasing The Store unless there was a five-year option on the lease. He was not certain what the specific conversations were. He was only certain that Cuneo did not offer an assignment or a new lease. At no time during the period he represented his clients did they state to him or to anyone that they would not accept an assignment of the lease.

Serpico admitted that if his clients had insisted the contract have a five-year option or that he negotiate a new and additional lease and he failed to put in the contract, he could be held liable.

Barry Holt, an attorney, testified he was contacted by one of plaintiff’s principals to represent them in a prospective sale of the assets of the business to Barnes and some other people. Holt then contacted Victor Goulet from American Invsco, and he put Holt in touch with the attorney for the prospective purchasers, Serpico. They discussed the terms of the agreement, and between them drafted an agreement that was signed by all of the parties. Holt had previously been given by his client a contract drawn up by someone from American Invsco. He mentioned Goulet’s name. It was a handwritten agreement and was not sufficient. Holt did not recall if this contract had a provision or an option for an additional lease. Holt did not remember why the first contract was unacceptable. The final contract was signed on July 19. He did not know how many contracts were drawn up before that one. .

After the agreement was drawn up and signed, Holt and Serpico set up the escrow. He then called Cuneo to set up a meeting. Holt did not remember if he talked to Cuneo or to his secretary. There was one face-to-face meeting on August 30, 1972. Serpico and his clients and Goulet were there. Holt told Cuneo that they wanted to discuss transferring the lease for the remainder of the period from plaintiff to Serpico’s clients. Holt never discussed a new lease. He knew no new lease was available. He knew there was no option available. He was only interested in obtaining an assignment of the remaining portion of the present lease.

Cuneo said he was not interested in discussing an assignment at that time. He was in the process of selling the building. Holt assured him he was not talking about a new lease or a longer lease. Holt also told him that if he did not assign the lease, Holt’s client would stay on the premises until the end of the lease. All they were talking about was assigning the lease for the remainder of the period. Cuneo said he was not interested in getting into any discussion about any assignments. Holt did not remember if Cuneo ever said, “I will not assign the lease.” Holt did not know if there was ever a discussion between Serpico and Cuneo at that time or any other time.

After the meeting, Serpico both called Holt and wrote him a letter stating his clients had been ready, willing and able to perform but the deal had fallen through because “Cuneo has foreclosed any possible alternative solutions,” and demanding the return of the $30,000 placed in escrow.

Holt also testified in rebuttal over objection of defendants. He testified that he was never advised that the purchasers would not go through with the purchase of The Store unless there was a five-year option on the lease. Cuneo, at the August 30 meeting, never asked the purchasers if they would accept an assignment of the lease and they never stated that they would not accept one. Holt would not have permitted the return of the $30,000 escrow if they had taken a position that they would not accept an assignment on the lease. He did not want to let the money go but was forced to according to the terms of the agreement. If they had taken the position that they would not accept an assignment of the lease, he would have asked that the $30,000 deposit be forfeited.

Cuneo was the manager of the property, which was in a land trust. He testified that he had been impressed with the three young men who had originally leased the premises. Since he had found that personal signatures on the lease meant more than anything else, he permitted them to assign the lease to a corporation (the plaintiff) as long as all three individuals signed the lease and they notified him of any changes in stock ownership in the company during the term of the lease. They were immediately successful and for many years were good tenants. The last two or three years, they were slow on the rent, and several times their dramshop insurance was cancelled for nonpayment of premiums. According to the last insurance policy, the gross liquor receipts for 1971 were $166,000.

In 1972 Holt called Cuneo and told him they had a prospective purchaser for the business. Cuneo told him to submit the usual references and backgrounds and a brief history of their deal including figures. He received the various documents in a day or two. Cuneo then called Serpico and pointed out that no additional lease was available; there was no option privilege. He and Serpico had several more talks. Serpico told him that he realized the contract was “sort of a mess.” He said a second contract was being drafted. Cuneo asked for a copy of it when it was executed. He never received one, however.

There was a meeting at Cuneo’s office August 29 or 30, 1972. Margerie Bornes, Theresa Bornes, Barnes, Holt, Serpico and Victor Goulet were all there. Cuneo told them that because of the negotiations for the sale of the property there was no chance for any additional lease given in connection with an assignment. He then asked the purchasers if they were willing to proceed with the deal on the basis of an assignment of the present 21-month lease. They said they were not. Cuneo then said that since there was no assignee, there was no use in going any further. Because they had told him they did not want to be assignees, Cuneo did not check their references. He stated that he would have required Margerie Bornes to guarantee the corporate lease. Cuneo also indicated that the provisions in the sales contract conditioning sale on the gross sales equalling or exceeding $200,000 had given him considerable concern since the dramshop policy listed the gross liquor receipts for the past year as $166,000.

Cuneo denied that he had ever refused to consent to the lease as it then stood.

John Barnes testified that in June 1972 he saw an ad for the sale of a Rush Street Bar. At this time he was unemployed, having left LePub. Barnes and Theresa Bornes met a gentleman from American Investment Corporation at Carron’s Restaurant. There were two meetings as the broker did not have the full information at first. The second time they drew up a lease agreement for 30 days with a deposit of $200. In it, it was stipulated there was a five-year option. There were other signatures on the contract. Barnes was the last to sign.

Originally, Barnes said he signed only one document on that date. On cross-examination he was shown a contract for the sale of real estate bearing that date. That contract provided that Barnes or a nominee agreed to purchase the real estate known as The Store (it is obvious of course that plaintiff could not sell the real estate since it did not own it) plus certain personal property including air conditioner. Only Barnes’ signature appears on the document. The broker is listed as Victor N. Goulet. While there are several written stipulations on the back, there is no requirement of a five-year option. There is also nothing indicating the agreement is only for 30 days. The agreement appears to be incomplete; the last written stipulation reading “L. Purch.” After reading this document, he agreed that he obviously signed more than one document.

After Mr. and Mrs. Bornes, Theresa’s parents, flew from their home in Arizona to Chicago to look at the building, they contacted Serpico, who drew up corporation papers and also a new purchase agreement. The agreement failed to have any stipulation as to the five-year option in it.

Serpico drew up the corporate papers which they signed and they were incorporated. They had agreed who would be the officers of the corporation agreement and had determined who would get what. They had discussed how much money it would take. It was understood that Margerie Bornes would invest over $30,000 and they had to have operating capital. But when asked if they had had any dollar amounts in mind as to operating capital, Barnes answered “We didn’t get that far down the road.” They had nothing signed as to matters such as financing.

When they met at Cuneo’s office, it came out that there was no five-year option. Since there was no option, they did not want the deal and it fell through. They told all of them they did not want the deal. Barnes had not authorized anyone to remove a five-year option from the agreement presented by American Invsco. He did not realize until after the fact that the agreement he later signed did not contain a five-year option.

Barnes never asked Cuneo to assign the remaining 21 months of the lease to them. He also testified that Cuneo never refused to assign the lease to them.

Theresa Bornes testified that she had been working as a waitress at either LePub or Tenement Square. She and Barnes decided to go into business together. They saw an advertisement for The Store and telephoned. A man from the real estate office told them there was a “year and something” on the lease and also an option. Her parents came from Arizona and looked at it. They liked it, so they started to incorporate. Then they went over to get the lease from Cuneo. Cuneo told them there was no option. They then told Cuneo they were not interested unless there was a five-year option. Cuneo never refused to consent to the assignment of the lease; they did not want it.

Margerie Bornes, Theresa’s mother, testified that they first heard of The Store when John Barnes telephoned her husband. It was then that he told them there was a five-year option. They were interested and came to Chicago to look at The Store. It appeared to be a good deal so they decided to form a corporation. John and Theresa were to run it and the witness and her husband were to put money in it. The witness testified Serpico’s memorandum detailing her financial background stated a “pipedream.” Her net worth was only $1 million at that time, not between $4 and $5 million as represented.

Margerie Bornes was not a party to the purchase agreement. The intention was that the corporation which they were forming would buy the business. She and her husband, Serpico, John Barnes and Theresa met with Cuneo. Also there were Holt and Victor Goulet who were representing the other people. As they came into Cuneo’s general office, he greeted them cordially but indicated he did not understand why they were there. They said they wanted the balance of the lease with the five-year option put into the corporation’s name. He told them there was not going to be a five-year option; the building was going to be torn down. He was willing to give them a lease for the balance that was there but they said no; if there was going to be no building, there was no reason to pursue it further.

Margerie Bornes testified that her own personal funds were used for the $30,000 deposit. She recovered the money because of the shortness of the terms.

Before trial, the trial court apparently instructed the jury that they were to decide whether or not Cuneo refused an assignment of the lease. The court’s instruction itself is not in the record; however, defendants’ objection on the grounds the jury should have been told that the question of the assignment had to do with whether it was an arbitrary, capricious, unreasonable refusal to assign is in the record. The court in the colloquy appeared to agree the general statement was made and responded that the jury would be properly instructed at the close of the case. Defendants did not move for a mistrial.

At the close of the case the jury was instructed that plaintiff had the burden of proof to show (1) that plaintiff and the purchasers requested consent to an assignment of the lease; (2) that Cuneo wrongfully and without just cause withheld his consent to the assignment of the lease. The assignee had to be acceptable according to reasonable commercial standards. The jury was told that the law does not say what reasonable commercial standards are. That was for the jury to decide; (3) the reason the sale was not consummated was because no consent to the assignment was given; (4) the plaintiff suffered damages due to the above. The court refused to give defendants instructions that:

“Consent to an assignment of a lease requires three parties:
1. A landlord to give consent.
2. A lessee to assign the lease.
3. An assignee to accept the lease.”

I

There was evidence from which the jury could conclude that Cuneo refused to consent to the assignment. It is true that the would-be purchasers and Cuneo all testified that he did not refuse to consent. But both Holt and Doe testified that when they asked him to consent to the assignment, Cuneo said he was not interested in discussing it. A refusal does not have to be in precise and specific words. It is not necessary that one say “I will not consent.” A refusal to even consider a request is as much a refusal to consent as an express refusal to consent. It is true as defendants argue that the only evidence for plaintiff was from interested parties whereas Theresa and Margerie Bornes and John Barnes were not interested parties. Indeed, John Barnes was testifying against his own interest when he testified the deal fell through because they said they did not want the deal. Under the contract of sale which he signed individually as well as in a representative capacity, he was liable for $30,000 to plaintiff if the consent was refused due to purchaser’s fault. The credibility of the witnesses is, however, a question peculiarly within the province of the trier of facts. (Myers v. Arnold (1980), 83 Ill. App. 3d 1, 403 N.E.2d 316; McCommons v. Moorman Manufacturing (1980), 81 Ill. App. 3d 708, 401 N.E.2d 1354; Clifton v. Nardi (1978), 65 Ill. App. 3d 344, 382 N.E.2d 514.) A verdict of a jury will not be disturbed on appeal where there is some evidence to support it (Derrico v. Clark Equipment Co. (1980), 91 Ill. App. 3d 4, 413 N.E.2d 1345; Fuery v. Rego (1979), 71 Ill. App. 3d 739, 390 N.E.2d 97, appeal denied (1979), 79 Ill. 2d 611; Cora v. Chicago Housing Authority (1971), 131 Ill. App. 2d 23, 268 N.E.2d 497), even where as here it is supported by a smaller number of witnesses. Russell v. Consolidated Forwarding Corp. (1945), 327 Ill. App. 204, 62 N.E.2d 44 (abstract); Hellwig v. Lomelino (1941), 309 Ill. App. 369, 33 N.E.2d 174, appeal denied; Rogers v. Smith (1922), 227 Ill. App. 70; Chicago City Railway Co. v. Donnelly (1907), 136 Ill. App. 204, affd (1908), 235 Ill. 35, 85 N.E. 233.

II

However, contrary to the preliminary instruction apparently given to the jury, the principal issue in this case was not whether Cuneo refused to give his consent but whether to quote the complaint he “arbitrarily, capriciously, unreasonably and without just cause” withheld his consent.

It is well established in Illinois that where a lease forbids any sublease or assignment without the consent of the lessor, the lessor cannot unreasonably withhold his consent to a sublease. (Arrington v. Walter E. Heller International Corp. (1975), 30 Ill. App. 3d 631, 333 N.E.2d 50; Reget v. Dempsey-Tegler & Co. (1966), 70 Ill. App. 2d 32, 216 N.E.2d 500; Scheinfeld v. Muntz TV, Inc. (1966), 67 Ill. App. 2d 8, 214 N.E.2d 506, appeal denied (1966), 33 Ill. 2d 628; Wohl v. Yelen (1959), 22 Ill. App. 2d 455, 161 N.E.2d 339; Mowatt v. 1540 Lake Shore Drive Corp. (7th Cir. 1967), 385 F.2d 135.) But a condition precedent to the lessor’s duty to accept a sublessee is the tender to him of a suitable tenant as sublessee. (Scheinfeld v. Muntz TV, Inc. (1966), 67 Ill. App. 2d 8, 214 N.E.2d 506, appeal denied (1966), 33 Ill. 2d 628.) Thus before the defendants could possibly be held liable for failure to consent to a transfer of the lease, the plaintiff had the burden of proving (Reget v. Dempsey-Tegler & Co. (1966), 70 Ill. App. 2d 32, 216 N.E.2d 500), that it had tendered a person who was “ready, willing and able” to take over the lease and who, at the very least, met reasonable commercial standards.

The preponderance of the evidence in the record is to the effect that by August 30, 1972, the plaintiff did not have anyone who was “ready, willing and able” to take over the lease. All three of the intended purchasers testified that once they learned there was no five-year option they were unwilling to accept the lease. However, in light of their agent Serpico’s testimony that the purchasers had been willing to fulfill the contract we are not willing to say that there was no evidence at all in the record to support a finding that there was an assignee ready to take the lease. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

Nevertheless, since the evidence was strongly conflicting and the merits of the case doubtful, it was essential that the jury be properly and fully instructed. (Clemons v. Alton & Southern R.R. Co. (1977), 56 Ill. App. 3d 328, 370 N.E.2d 679, appeal denied (1978), 71 Ill. 2d 602.) Accordingly, it was prejudicially erroneous for the court to refuse to give defendants’ instruction as to the necessary parties to an assignment. This instruction would have correctly instructed the jury that consent to an assignment of a lease requires three parties, including an assignee, to accept the lease. Since one of the principal issues for the jury to determine was whether on August 30,1972, there was an assignee to accept the lease, it was necessary for the jury to be instructed on this issue and this the court, by refusing the instruction, failed to do. The failure to give an instruction is not reversible error where the other instructions cover the matter dealt with in the refused instruction. (McCormick v. Bucyrus-Erie Co. (1980), 81 Ill. App. 3d 154, 400 N.E.2d 1009.) But we cannot agree with plaintiff’s contention that the issue instruction sufficiently covered the question since it instructed the jury that it must find that both plaintiff and purchasers requested consent to the lease and that Cuneo’s refusal was the reason the sale was not consummated. Properly instructed, the jury could have found from the evidence that the purchasers through their agent Serpico requested consent to the assignment but that by August 30 there no longer was an assignee to accept the lease. The evidence is clear that Cuneo’s refusal or failure to consent to an assignment was at least one reason the sale was not consummated and was the reason used by the purchasers through their attorney to recover the escrow. But that does not mean that the purchasers were otherwise willing to perform. Precisely for that reason it was essential that the jury be instructed that there must be an assignee to accept the lease, particularly in light of the fact the jury had been erroneously instructed before trial that in effect all it had to determine was whether Cuneo had refused to consent to the lease. This error was not properly preserved since it was not set forth in the record (Woodrick v. Smith Gas Service, Inc. (1967), 87 Ill. App. 2d 88, 230 N.E.2d 508), and there was no timely motion for a mistrial (Gaffner v. Meier (1948), 336 Ill. App. 44, 82 N.E.2d 818); nevertheless, we can consider the effect of that remark in considering the prejudicial effect of the later failure to instruct.

III

However, it is not necessary for the case to be remanded for a new trial since there was no evidence from which the jury could have determined that the would-be purchaser, the corporation, was a commercially reasonable assignee, and thus that the defendants acted unreasonably and arbitrarily in refusing consent.

To show that the defendants unreasonably rejected the transfer, plaintiff must prove that the proposed purchaser met reasonable commercial standards. (Reget v. Dempsey-Tegler & Co. (1966), 70 Ill. App. 2d 32, 216 N.E.2d 500.) While other factors may at times be considered (Annot., 54 A.L.R.3d 679 (1973); see, for example, Jones v. Andy Griffith Products, Inc. (1978), 35 N.C. App. 170, 241 S.E.2d 140, appeal denied (1978), 295 N.C. 90, 244 S.E.2d 258), one of the most important factors is the financial responsibility of the would-be sublessee. (Reget v. Dempsey-Tegler & Co. (1966), 70 Ill. App. 2d 32, 216 N.E.2d 500; Fernandez v. Vazquez (Fla. App. 1981), 397 So. 2d 1171; American Book Co. v. Yeshiva University Development Foundation, Inc. (1969), 59 Misc. 2d 31, 297 N.Y.S.2d 156.) Thus where the proposed transferee is insolvent, or of dubious financial responsibility, or has a poor payment record, the landlord’s refusal to consent will not be found to be unreasonable. (Reget v. Dempsey-Tegler & Co. (1966), 70 Ill. App. 2d 32, 216 N.E.2d 500; Mowatt v. 1540 Lake Shore Drive Corp. (7th Cir. 1967), 385 F.2d 135; Riggs v. Murdock (1969), 10 Ariz. App. 248, 458 P.2d 115; and see Wiggins v. Fane (1979), 71 App. Div. 2d 1039, 420 N.Y.S.2d 46.) As stated in Reget-.

“The burden of proving the Norrisses were acceptable subtenants rested with defendant. Hinde v. Madansky, 161 Ill. App. 216. If a party asserts a claim for damages, the claim is his to prove. So, too, if a party counterclaims, the counterclaim is his to prove. To show that the Regets unreasonably rejected a subtenant the defendant must show the proposed subtenant met reasonable commercial standards. Defendant offered no evidence of the Norrisses’ suitability as subtenants save a $400 deposit on the proposed sublease and the assurance that it would remain liable for the rest.
We believe the sublessee’s credit is a meaningful factor in the lessor’s determination of the preferred subtenants acceptability. Regardless of the type [of] business conducted by the proposed subtenant, the enterprise has a tenor which can detract from the value of the entire premises. Thus a given business can be acceptable in name, but unacceptable in the way it is conducted. The capital and credit of an entrepreneur controls to some extent the manner of his business. So, too, does the financial responsibility bear on the day-to-day upkeep, and day-to-day appearance of the premises. Another more remote consideration based to some degree on financial strength involves labor difficulties. So, too, would a series of rapid turnovers caused by the weakness of subtenants’ businesses detract from the value of the overall premises.
# O #
The burden was the defendant’s and no evidence of suitability was introduced.” (70 Ill. App. 2d 32, 37-38.)

Furthermore, regardless of what might later be shown in court, the lessor is justified in refusing his consent until satisfactory proof of financial ability and responsibility is shown. Johnson v. Jaquith (Fla. App. 1966), 189 So. 2d 827; Fairchild Realty Co. v. Spiegel, Inc. (1957), 246 N.C. 458, 98 S.E.2d 871.

A search of the record discloses that there is no evidence that the corporation which was proposed as assignee was financially responsible. The corporation was incorporated but it had never gotten into business. Its stated capital was $1,000, but there was no evidence that the corporation had any money at all. One of the shareholders was wealthy but she was under no legal obligation to put any particular amount into the corporation, other than the $30,000 already put into escrow for the benefit of plaintiff.

Furthermore, the evidence discloses that Cúneo was given no information establishing the corporation’s financial responsibility although, as already noted, a landlord is not required to consent to a transfer of the lease until he is given satisfactory proof of the transferee’s financial responsibility. According to the testimony at trial, all of the information given to Cuneo related to Barnes and Margerie Bornes and none related to the corporation, the proposed assignee. It is true that John Barnes was also a party to the sale but there was no evidence he was financially responsible. It is also true that Margerie Bornes was financially responsible, but there is no evidence that she was willing to guarantee the lease or had told Cuneo she was willing.

Furthermore, it was established in Scheinfeld v. Muntz TV, Inc. (1966), 67 Ill. App. 2d 8, 214 N.E.2d 506, appeal denied (1966), 33 Ill. 2d 628, that landlord does not have to release the lessor from further responsibility. (And see Wohl v. Yelen (1959), 22 Ill. App. 2d 455, 161 N.E.2d 339.) In the present case, unlike the other Illinois cases (Reget v. Dempsey-Tegler & Co., Inc. (1966), 70 Ill. App. 2d 32, 216 N.E.2d 500; Scheinfeld v. Muntz TV, Inc. (1966), 67 Ill. App. 2d 8, 214 N.E.2d 506, appeal denied (1966), 33 Ill. 2d 628; Wohl v. Yelen (1959), 22 Ill. App. 2d 455, 161 N.E.2d 339), the plaintiff sought to assign rather than sublease. But there was no evidence that plaintiff was willing to guarantee performance of the lease by the assignee arid that plaintiff had communicated its willingness to Cuneo.

Since there was no evidence from which the jury could have determined that the purchasers met reasonable commercial standards there was no case for the jury. (Pedrick v. Peoria & Eastern Railroad Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Accordingly, the judgment of the trial court is reversed and judgment is entered for defendants.

Reversed.

JOHNSON, P. J„ and JIGANTI, J., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    THE VILLAGE OF MAYWOOD, Plaintiff-Appellant, v. HEALTH, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 80-2544
    Opinion filed February 5, 1982.
    Rehearing denied April 13, 1982.

      Sanford M. Stein and Ronald S. Cope, both of Ancel, Glink, Diamond, Murphy & Cope, P. C., of Chicago, for appellant.
    D. Adolphus Rivers and Harry P. Bush, both of Rivers, Smith & Bush, of Chicago, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

The Village of Maywood (Maywood) sought to enjoin defendants from operating a methadone clinic allegedly in violation of the village zoning ordinance. The trial court found that the methadone clinic was a permitted use under the ordinance, and denied injunctive relief.

The issues on appeal are: (1) whether the methadone clinic is a permitted use under the Maywood ordinance, (2) whether Maywood is estopped from enforcing its zoning ordinance because it had previously issued various building permits to defendants, (3) whether judicial interpretation of the zoning ordinance is affected by an interpretative resolution passed by the village after this litigation commenced, (4) whether the trial court erred in excluding certain evidence and (5) whether portions of defendants’ brief should be disregarded because points and authorities listed are not referred to or argued in the body of the brief.

The subject property is located at 308 South Fifth Avenue in Maywood, Illinois. The area is zoned “B-4 Office and Residential.” Included among the permissible uses for this area are the following:

“8.4 B-4 Office and Residential District
8.4 — 1 Permitted Uses. The following uses of land or buildings are permitted:
<* # #
Offices of professional persons such as physicians, dentists, health practitioners (but not including veterinarians), attorneys, architects and engineers, and including outpatient medical and dental clinics, but not hospitals.
e # # ”

Section 4.12 of the Maywood zoning ordinance states that a use is prohibited if it is not listed as permitted.

The property was formerly used as a family alcoholic abuse center. Health, Inc., operates an outpatient drug rehabilitation program on the leased premises. Their methadone clinic combines methadone maintenance, detoxification, and group and single therapy sessions for a case load of approximately 90 patients. The staff includes medical doctors, licensed practical nurses and counselors. It provides social, legal and educational services in addition to job training and procurement.

Health, Inc.’s program is Federally, State and locally funded. It is licensed, maintained and supervised by the United States Department of Justice, the Drug Enforcement Administration, and the Illinois Dangerous Drug Commission.

On June 8, 1979, Health, Inc., applied for and received a building permit to renovate the subject property for its methadone clinic. The village issued a certificate of completion for that work on July 30, 1979. Shortly thereafter, Maywood notified defendant that operation of a methadone clinic required a special use permit. On September 4, 1979, the Maywood Plan Commission conducted a public hearing on Health’s application for a special use permit.

The Plan Commission found that the program was Federally, State and locally funded, was maintained by the Illinois Dangerous Drug Commission, and worked in connection with Westlake Hospital. They found that the program exists by virtue of the Illinois Dangerous Drug Abuse Act (Ill. Rev. Stat. 1977, ch. 9Uz, par. 120.1 et seq.), which declares that it is the public policy of the State to establish programs to provide treatment and rehabilitation for controlled substance addicts. The Plan Commission then recommended that a special use permit be granted. The board of trustees rejected this recommendation and directed that Health, Inc., cease its operation.

On November 21, 1979, Maywood filed suit alleging: (1) that defendants’ clinic was a nonpermitted use, (2) that defendants were in violation of Village off-street parking requirements, (3) that defendants’ activities constituted a nuisance, and (4) that defendants’ operation of the clinic was ultra vires conduct which exceeded the limitations of its corporate charter. The latter count was stricken prior to trial.

On April 10, 1980, the Village of Maywood passed Maywood Resolution No. R 80-9, “A Resolution Interpreting Section 8.4 of the Maywood Zoning Ordinance, as amended.” It states in pertinent part that the Maywood Zoning ordinance does not provide for a methadone clinic as either a permitted or special use in the B-4 Office and Residential District, as thereby retroactively interpreted by the village board of trustees.

Prior to trial, Maywood requested that Health, Inc., produce a copy of its floor plans pursuant to Supreme Court Rule 237 (Ill. Rev. Stat. 1979, ch. 110A, par. 237). Health, Inc., responded that the plans were not relevant. At the onset of trial, Maywood asked the court to instruct Health, Inc., to produce the requested documents. The court noted that Maywood was told to dispose of the matter in the pretrial hearing and should not have waited until trial began. The court indicated that if the floor plans became essential during the trial, then the court would take the matter under advisement at that time.

During the trial, the court excluded expert testimony of a land use and zoning specialist and of a forensic toxicologist offered by Maywood. The excluded testimony by the land use and zoning expert related to the nature of the surrounding uses in the B-4 district. The excluded testimony by the forensic toxicologist concerned the character of a methadone clinic as a permitted use and whether methadone use can be lethal.

Following a bench trial, the trial court held that Health, Inc.’s, methadone clinic was a permitted use under Section 8.4, B-4. The count alleging off-street parking violations was stricken for lack of proof. The trial court found that defendants’ activities did not constitute a nuisance. The trial court then denied injunctive relief. The issue of nuisance was not presented on appeal.

In its appellate brief, plaintiff accurately points out that points and authorities listed in defendants’ brief are not argued in the body of the brief. Plaintiff argues that this violates Supreme Court Rules 341(e) (5) and 341(f) (Ill. Rev. Stat. 1979, ch. 110A, par. 341). Plaintiff urges this court to disregard those cases.

Opinion

At the threshold, we consider plaintiff’s argument that we should disregard, as authority, the cases which defendants have included in their list of points and authorities. These cases are not referred to or argued in the body of defendants’ brief. Plaintiff points out that this violates Supreme Court Rules 341(e)(5) and 341(f) (Ill. Rev. Stat. 1979, ch. 110A, par. 341). We agree that it is of little value to the court to be provided with a mere list of cases to be considered in support of a trial court judgment.

The appellate court will not consider a point that has not been argued unless its responsibility for a just result and for maintenance of a sound and uniform body of precedent dictates otherwise. (Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831.) This rule of practice is applicable to appeals in this court under the Administrative Review Act. Kaminski v. Illinois Liquor Control Com. (1974), 20 Ill. App. 3d 416, 314 N.E.2d 290.

Even in a case where the appellee failed to file its brief, it was held that a considered judgment of the trial court should not be set aside without some consideration of the merits of the appeal. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.) In the interest of justice, we therefore exercise our discretionary authority to consider the portions of defendants’ brief where points cited are not argued.

We next consider whether an interpretative resolution passed by the village after this litigation commenced will control our construction of section 8.4, B-4. The resolution was passed on April 10, 1980, subsequent to the institution of this suit. It states in relevant part that the Maywood zoning ordinance does not provide for or include methadone maintenance and detoxification centers as either permitted or special uses in the B-4 Office and Residential District, as retroactively interpreted by the board of trustees.

It is Maywood’s position on appeal that the intent of the board of trustees of a home-rule village is expressed in this resolution. Therefore, according to Maywood, the resolution ought to guide our decision as to the meaning of section 8.4 with respect to methadone maintenance programs.

The rules of statutory construction provide that interpretative regulations by those charged with enforcing a statute are entitled to great weight. (2A A. Sutherland, Statutory Construction §49.05 (4th ed. 1973).) However, as the supreme court recently stated, a legislative body, including the board of trustees of a home-rule village, is without power to say how the judiciary shall construe a legislative enactment. (Palella v. Leyden Family Service & Mental Health Center (1980), 79 Ill. 2d 493,404 N.E.2d 228.) It is well settled that the judicial power is vested solely in the courts, and the legislative branch is without authority to state explicitly how the judiciary shall construe a statute. People v. Crawford Distributing Co. (1972), 53 Ill. 2d 332, 291 N.E.2d 648.

Therefore, we do not regard the board of trustees’ interpretative resolution as controlling in the present case.

We now consider the principal issue in this appeal.

Plaintiff contends that the trial court erred in finding defendants’ use to be permissible under the ordinance. We disagree.

The relevant portion of section 8.4 of the Maywood zoning ordinance shows that the following uses are permitted:

“Offices of professional persons such as physicians, dentists, health practitioners (but not including veterinarians), attorneys, architects and engineers, and including outpatient medical and dental clinics, but not hospitals.”

Section 4.12 of the Maywood zoning ordinance states that when a use is not specifically listed in the sections devoted to permitted uses, it is prohibited. (Health, Inc.’s, methadone clinic does not meet the definition for “medical clinic” as set forth in the Maywood zoning ordinance because it does not employ the requisite number of doctors.)

Health, Inc., contends that their program is included under the description “Office of professional persons * * * such as health practitioners.” We agree.

It is well settled that courts must construe a zoning ordinance in the same fashion as a statute and thus give effect to the intentions of the drafters. (Niles Improvement Association v. J. Emil Anderson & Son, Inc. (1968), 93 Ill. App. 2d 167, 236 N.E.2d 402.) In analyzing a zoning ordinance, effect should be given to the intention of the drafters by concentrating on the terminology, its goals and purposes, the natural import of words used in common and accepted usage, the setting in which they are employed and the general structure of the ordinance. Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 377 N.E.2d 21.

We also note that zoning ordinances are in derogation of the common law so that any ambiguity or uncertainty must be decided in favor of the property owner. (Herrington v. County of Peoria (1973), 11 Ill. App. 3d 7, 295 N.E.2d 729.) When not otherwise required by the ordinance, the property owner should be able to rely on terms used in a zoning ordinance as meaning what they are commonly understood to mean. County of Lake v. Gateway Houses Foundation, Inc. (1974), 19 Ill. App. 3d 318, 311 N.E.2d 371.

Health, Inc.’s in-house staff includes professional persons such as doctors and nurses. It is equally clear that the methadone clinic provides both physical and mental health care to its patients. The trial court properly concluded that the methadone clinic is an office of professional persons such as health practitioners.

Plaintiff directs our attention to the case of Palella v. Leyden Family Service & Mental Health Center (1980), 79 Ill. 2d 493, 404 N.E.2d 228. In Palella, neighbors of a nonmedical detoxification center sued to enjoin its operation. The center was located on the former site of a nursing home. The nursing home had operated under a special use permit which allowed only a nursing home to exist on the property. The permit specifically stated that it would expire when the premises were no longer used for a nursing home. The supreme court held that the terms of this special use permit showed a legislative intent to restrict the permissible uses to the use existing at the time of its issuance.

Palella is distinguishable from the present case because defendants’ methadone clinic did not violate the terms of an existing special use permit. Our search of the record does not reveal that the former use of the property for an alcoholic abuse center required a special use permit. Neither was it shown that operation of defendants’ methadone clinic violated any existing special use permit provisions. In the ordinance before the Palella court, the restriction was as clear as words could make it. In the present case, no such restriction is present. Hence, the inappositeness of this case as authority.

Similarly, we are not persuaded by Maywood’s argument that the rule in Williams v. City of Bloomington (1969), 108 Ill. App. 2d 307, 247 N.E.2d 446, applies here.

In Williams, the zoning ordinance provided that if a particular use was not set forth, it was prohibited. There, a lot zoned for single-family residence was being used as a driveway for ingress and egress to an adjoining apartment dwelling. The court held that such use was clearly prohibited.

In the present case, the applicable ordinance also prohibits any use that is not specifically set forth. Here, however, since we concluded that the methadone clinic is an office of professional persons such as health practitioners, the use is specifically set forth. Therefore, the prohibition does not apply.

As the Williams court stated, “If such and such a use is not set forth, it is prohibited. The express uses, of course, must be read to include reasonably implied ones.” (Williams v. City of Bloomington (1969), 108 Ill. App. 2d 307, 311.) We believe that Health, Inc’s operation of a methadone clinic is included in the express permitted use “Office of professional persons * * 0 such as health practitioners.”

As an independent ground supporting our decision, we refer to the stated policy of the State of Illinois as embodied in section 2 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1979, ch. 91/2, par. 120.2), which states:

“It is the public policy of this State that the human suffering and social and economic loss caused by addiction to controlled substances * * ** are matters of grave concern to the people of the State. It is imperative that a comprehensive program be established and implemented through the facilities of the State, counties, municipalities, the Federal Government, and local and private agencies to prevent such addiction and abuse; * * * and to provide diagnosis, treatment, care and rehabilitation for controlled substance addicts to the end that these unfortunate individuals may be restored to good health and again become useful citizens in the community.”

Constitutionally valid legislation that is enacted in response to current demands serves as an extremely valuable evidentiary source of public policy. 2A A. Sutherland, Statutory Construction §56.02 (4th ed. 1973).

Furthermore, considerations having to do with public policy exert a significant influence in the process of statutory interpretations, since the tendency of the courts has always been to favor interpretations which are consistent with public policy. Sutherland, at 403. See also Comment, Exclusion of Community Facilities for Offenders and Mentally Disabled Persons: Questions of Zoning, Home Rule, Nuisance and Constitutional Law, 25 De Paul L. Rev. 918 (1976).

In the present case, we believe that Health, Inc.’s methadone clinic not only qualifies as a permitted use within the zoning ordinance, but its continuing existence is advocated by the public policy of the State of Illinois.

In light of our determination, we do not reach the issue of the presumptive validity of the Maywood ordinance. Similarly, we do not reach the issue of whether plaintiff is estopped from enforcement of its zoning ordinance due to the prior issuance of various building related permits to defendant.

Maywood next argues that the court erred in not granting its motion, at the onset of trial, to compel production of. defendants’ floor plans pursuant to Supreme Court Rule 237 (Ill. Rev. Stat. 1979, ch. 110A, par. 237). Maywood contends that these plans are necessary to prove violation of the zoning ordinance’s off-street parking requirements.

Our search of the record shows that the court, after admonishing counsel that this matter was to have been disposed of prior to the commencement of trial, took the matter under advisement. The record fails to show any subsequent ruling or request by the plaintiff concerning this motion.

It is well established that when the court reserves a ruling, the movant must seek a decision or ruling in order to preserve the motion for review. In re Annexation to Village of Downers Grove (1974), 22 Ill. App. 3d 122, 316 N.E.2d 804; Trisko v. Vignola Furniture Co. (1973), 12 Ill. App. 3d 1030, 299 N.E.2d 421.

Where a trial court does not rule on a motion to apply sanctions to plaintiff for not complying properly with an order for production of documents, the question of the trial court’s failure to apply sanctions is not before the appellate court on review. (Walls v. Jul (1969), 118 Ill. App. 2d 242, 254 N.E.2d 173.) In the absence of a ruling here, we have nothing to review.

Finally, Maywood contends that expert testimony by a land-use expert and forensic toxicologist was improperly excluded by the trial court. The testimony offered by the land-use expert related to the dissimilarity of zoning districts in Maywood, the pattern of development along Fifth Avenue, and the lessening of commercial functions in the B-4 district. The forensic toxicologist’s testimony concerned the character of a methadone clinic as a permitted use and the lethality of methadone.

Relevance is established when a fact offered tends to prove a fact in controversy or renders a matter in issue more or less probable. Bell v. City of Joliet (1980), 83 Ill. App. 3d 103, 403 N.E.2d 740.

In determining whether the testimony of any witness has any probative value, testimony must be measured against the factual issues raised in the case. Simon v. Lumbermen's Mutual Casualty Co. (1977), 53 Ill. App. 3d 380, 368 N.E.2d 344.

The critical issue raised in the present case is whether a methadone clinic is a permitted use under the ordinance. The preferred testimony relates to the nature of surrounding uses and the medical properties of methadone. We do not agree that such testimony has any relation to the dispositive issue in this case. It is not error to exclude testimony which does not reasonably bear upon the specific issue under consideration in the judgment of the trial court. Eleopoulos v. Dzakovich (1981), 94 Ill. App. 3d 595, 418 N.E.2d 980.

We conclude that the trial court did not err in excluding the experts’ testimony.

For the reasons stated the judgment of the circuit court is affirmed.

Affirmed.

MEJDA and WILSON, JJ., concur.


author: JUSTICE MEJDA

text:
    OSCAR GEORGE ELECTRIC COMPANY, Plaintiff-Appellee, v. THE METROPOLITAN FAIR & EXPOSITION AUTHORITY, Defendant-Appellant.—(HENRY NEWGARD & COMPANY, Defendant.)
    First District (5th Division)
    Nos. 81-1173, 81-1439 cons.
    Opinion filed February 26, 1982.
    Rehearing denied April 27, 1982.

      Don H. Reuben, William G. Schopf, Jr., Steven A. Weiss, and John A. Krivicich, all of Reuben & Proctor, of Chicago, for appellant.
    S. Ira Miller, of Chicago, for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

This action was brought by the plaintiff-appellee, Oscar George Electric Company (Oscar George), an unsuccessful bidder, to enjoin an electrical service contract between defendant-appellant, The Metropolitan Fair & Exposition Authority (the Authority), and defendant, Henry Newgard & Company (Newgard), the recipient of the contract awarded pursuant to competitive bidding. A temporary restraining order prohibiting the Authority and Newgard from entering into the contract was entered. The Authority filed a motion to dissolve or stay the order but prior to a ruling thereon, filed notice of appeal therefrom (appeal No. 81-1173). The court thereafter entered a preliminary injunction and denied the motion to dissolve or stay that order. These rulings were appealed (appeal No. 81-1439). The two appeals were consolidated upon motion of the Authority.

The Authority has prosecuted these interlocutory appeals challenging the issuance of the temporary restraining order and preliminary injunction and the denials of motions to dissolve or stay these orders. The Authority’s primary contentions on appeal challenge the standard applied in reviewing the Authority’s statutory exercise of discretion, and further challenge the pertinent findings with respect to the necessary prerequisites to the issuance of temporary and preliminary injunctive relief. The Authority also contends that the court abused its discretion in not requiring any bond for the temporary restraining order and in requiring a $70,000 bond for the preliminary injunction.

Essentially, this suit challenges the propriety of the bidding procedure used by the Authority in contracting for electrical services at McCormick Place and Donnelley Hall in Chicago. These facilities accommodate public and private expositions, trade shows, theatrical performances and other events. The Authority purchases electrical services for these events, charging exhibitors a flat fee and thereby making a profit on its charges. Due to steadily declining profits over past years, the Authority in 1980 decided that electrical work should be awarded to the lowest responsible bidder.

Under an interim agreement, U. S. Electric Company (U. S. Electric) was hired to provide temporary electrical work until a contract was awarded and signed. The agreement was memorialized by a letter stating the rates which U. S. Electric would charge. This letter agreement expired on May 31, 1981. At the time of this appeal, electrical services are still being provided under this agreement, which is terminable at will by either party and contains no guarantee of future service.

Meanwhile, the Authority composed a bid package and solicited competitive sealed bids in three daily newspapers of general circulation published in the Chicago area. The ads ran on February 28, .1981, March 1, 1981, and March 2, 1981. Prospective bidders were provided with copies of the advertisement for bids, instructions to bidder (Instructions), a bid form for electrical services (Bid Form), a copy of the proposed electrical services contract and other forms. The bid form requested information concerning the rates that would be charged by the bidder.

A total of 15 contractors submitted bids for the project. All bids were accompanied by a $50,000 bid deposit in the form of certified or cashier’s checks.

On March 17, 1981, the bids were opened publicly. The bids were then analyzed by the Authority’s accountants, who initially determined that based upon the quoted rates the Authority would pay Commercial $8,304,132, Newgard $8,478,262, and Oscar George $8,587,668 during the contractual period. These calculations indicated that Commercial was the lowest bidder.

Subsequently, the Authority’s electrical consultant noted an “irregularity” in Commercial’s bid in that the labor component quoted figures significantly below the prevailing union rates. Commercial then revealed that it planned to renegotiate all terms of the contract after a new labor collective bargaining agreement went into effect on June 1,1981, and that the company had underbid the labor component of the contract in order to be the lowest bidder.

The Authority objected to Commercial’s proposed renegotiation of the contract. A financial study of the impact of the three lowest bids was undertaken by the Authority’s accountants. The accountants concluded that Commercial would be the lowest bidder if union rates did not increase but since there was an anticipated increase effective June 1,1981, and since Commercial indicated that it would increase the rates it charged the Authority by an amount greater than other contractors, that then Commercial was no longer the lowest bidder. Instead, the accountants determined that Newgard was the lowest bidder and recommended that Newgard be awarded the contract.

At the regular monthly meeting of the Authority on April 3, 1981, representatives of Commercial were given an opportunity to be heard. A member of the board of directors of the Authority asked if Commercial had tried to pull a “fast one” and a representative replied, “we did.”

A motion made and seconded that Commercial be declared the lowest bidder and be awarded the contract was unanimously defeated by the 10 members present. A motion was then made and seconded that the electrical services contract be awarded to Newgard. The motion was adopted by the unanimous vote of all members present. These votes and the board’s reasons therefor were written up in the minutes of the meeting and retained on file at the Authority.

Upon rejecting Commercial as the lowest bidder, a motion was made and carried that Commercial’s $50,000 bid deposit was to be returned. Thereafter, Commercial’s deposit was returned, as were those of the other unsuccessful bidders.

At a meeting on April 17, 1981, the Authority, U. S. Electric and Newgard agreed that the electrical services changeover from U. S. Electric to Newgard was to be completed by June 8,1981. This date was selected to provide sufficient time for familiarization with electrical systems and to interfere least with the scheduled trade shows. The contract was signed by Newgard on or about May 1, 1981, and by the Authority at the regular monthly meeting on May 8,1981.

On May 7, 1981, Oscar George filed its verified complaint seeking injunctive relief prohibiting the Authority and Newgard from entering into the contract, a declaration that the bid procedure utilized was void, and an order compelling the Authority to seek the services with a bid form consistent with the intent and prohibitions of the Metropolitan Fair and Exposition Authority Act (Ill. Rev. Stat. 1979, eh. 85, par. 1221 et seq.).

On May 12, 1981, the court entered a temporary restraining order enjoining the Authority and Newgard from doing any act in furtherance of the contract. The order further provided that Oscar George would not be required to post bond, and that a hearing as to the preliminary injunction was set for May 21, 1981. The Authority filed an emergency motion to dissolve or stay this order in the circuit court on May 13, 1981. After a brief hearing on that date, the matter was continued until May 18, 1981, to allow Oscar George adequate time to respond to the Authority’s motion. The Authority contends that the order for continuance constituted a “de facto” denial of its emergency motion to dissolve or stay said order.

On May 29, 1981, this court ordered that the temporary restraining order be stayed unless Oscar George posted a bond in the amount of $100,000 by 2 p.m. on June 2,1981. No such bond was posted.

Then, on June 5, 1981, after hearing evidence, the circuit court entered an order granting Oscar George’s motion for a preliminary injunction. Bond, originally set at $50,000, was raised to $70,000. The Authority’s request for a further increase was denied.

On June 8, 1981, the Authority’s motion to dissolve or stay the preliminary injunction was denied. The Authority filed notice of appeal from the order and the denial of the motion. Upon the authority’s motion in this court, we ordered that Oscar George post bond in the total aggregate amount of $200,000. Oscar George has filed a motion to dismiss the Authority’s appeal No. 81-1173 relating to the entry of the temporary restraining order, which motion was taken with the case.

Additional allegations and evidence presented in the circuit court are incorporated as necessary into the opinion below.

Opinion

I

The Authority contends that the circuit court abused its discretion in the entry of the temporary restraining order. In its motion to dismiss the appeal, Oscar George argues that the temporary restraining order is not appealable, or alternatively that the appeal had been made moot by the expiration of the restraining order. We need not address the merits of the mootness argument here since we find the temporary restraining order is not reviewable under the facts in this case.

The general rule is that a temporary restraining order is appealable under Supreme Court Rule 307(a)(1) where the defendant brings a motion to vacate or dissolve the order. (73 Ill. 2d R. 307(a)(1); Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177, 303 N.E.2d 1; Lester Witte & Co. v. Lundy (1981), 98 Ill. App. 3d 1100, 425 N.E.2d 1.) In Bohn Aluminum & Brass Co. the appealability was predicated in part, however, upon the fact that the defendant had filed a motion to vacate the restraining order and the motion was subsequently denied by the trial court. The supreme court recognized that such procedure was established to prevent appeals from orders entered under circumstances indicating only partial and one-sided consideration. (55 Ill. 2d 177, 184, 303 N.E.2d 1, 5.) Since Bohn Aluminum & Brass Co., it has been repeatedly held that a temporary restraining order is reviewable by way of interlocutory appeal where the defendant files a timely motion to dissolve the order. See, e.g., Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 405 N.E.2d 1316; Bettendorf-Stanford Bakery Equipment Co. v. UAW Local No. 1906 (1977), 49 Ill. App. 3d 20, 363 N.E.2d 867.

In the instant case the Authority filed an emergency motion to stay or dissolve the order in the trial court on May 13, 1981. The hearing on the motion, however, was continued until May 18, 1981, to allow plaintiff adequate time to respond. The Authority appealed the temporary restraining order on May 14, 1981, prior to the hearing on its motion. The Authority’s contention that the order continuing the motion constituted a failure to rule, which, in turn, resulted in a “de facto” denial of the motion to dissolve or stay is illusory. We do not agree that by continuing the hearing on the motion the circuit court “failed to rule” on the Authority’s motion. In any case the failure to rule on a motion is not the equivalent of the denial of the motion. Veterans Travel Club v. Illinois Commerce Com. (1973), 15 Ill. App. 3d 116, 303 N.E.2d 142.

Under the circumstances presented here the Authority has not afforded the trial court the opportunity to rule on its motion to dissolve or stay the temporary restraining order. In view of the above, the instant order is not appealable. Thus, we turn to the merits of the Authority’s appeal relating to the preliminary injunction.

II

In support of its contention that the preliminary injunction order should be reversed, the Authority first argues that the court applied an improper standard in reviewing the awarding of the electrical services contract. It is the Authority’s initial position that as a public body created by the legislature (see Ill. Rev. Stat. 1979, ch. 85, par. 1221 et seq.), it is empowered by its enabling legislation to exercise discretion in awarding contracts in response to bidding, and specifically to determine which bidder is the lowest responsible bidder. (Ill. Rev. Stat. 1979, ch. 85, par. 1244.) The Authority further argues that where its board of directors has exercised such discretion to ascertain the lowest responsible bidder, the presumption obtains that the action of such board was regular and lawful, and that such presumption can only be overcome by proof of fraud or lack of jurisdiction. (See, e.g., Hallet v. City of Elgin (1912), 254 Ill. 343, 98 N.E. 530; John N. Brunsfeld & Sons, Inc. v. Board of Education (1977), 54 Ill. App. 3d 119, 369 N.E.2d 283.) The Authority concludes that because Oscar George failed to allege or prove either of these elements, the court was precluded from entering the instant preliminary injunction.

Section 24 of the Metropolitan Fair and Exposition Authority Act provides that contracts awarded pursuant to bidding shall be “let to the lowest responsible bidder,” and that “[i]n determining the responsibility of any bidder, the Board may take into account past record of dealings with the bidder, experience, adequacy of equipment, ability to complete performance within the time set, and other factors besides financial responsibility * * (Emphasis added.) Ill. Rev. Stat. 1979, ch. 85, par. 1244.

In People v. Omen (1919), 290 Ill. 59, 124 N.E. 860, our supreme court stated:

“It has been repeatedly held by this court that the statutory requirement that contracts for public improvements shall be let to the lowest responsible bidder does not require the letting of a contract to the lowest bidder upon the ascertainment of his financial responsibility, only; that the term ‘responsible’ includes the ability to respond by the discharge of the contractor’s obligation in accordance with what may be expected or demanded under the terms of the contract, and that when the municipal authorities have exercised their discretion in the award of a contract for a public improvement the presumption obtains that the action of such authorities was regular and lawful, and the courts will not interfere, in the absence of fraud, with the exercise of official discretion by the municipal authorities in awarding such contract. (Hallett v. City of Elgin [1912], 254 Ill. 343, [98 N.E. 530] ° • •.)” 290 Ill. 59, 67, 124 N.E. 860, 864; see John N. Brunsfeld & Sons, Inc. v. Board of Education (1977), 54 Ill. App. 3d 119, 369 N.E.2d 283.

Our supreme court also recently reiterated that in determining the lowest responsible bidder, financial responsibility and the ability to perform the contract were not the only relevant factors, and the fact that a contractor submits the lowest bid will not automatically require that the contract be awarded to that contractor. (S. N. Nielsen Co. v. Public Building Com. (1980), 81 Ill. 2d 290, 410 N.E.2d 40.) It was there held that a bidding contractor’s failure to conform to the public commission’s affirmative action plan could be taken into account in determining whether he was the lowest responsible bidder within the meaning of the Public Building Commission Act (Ill. Rev. Stat. 1979, ch. 85, par. 1031 et seq.).

We recognize that under the above principles the term “responsible bidder” is incapable of any exact definition. From the foregoing statute and authorities it is obvious, however, that an exercise of discretion is an essential and necessary element of a board’s determination of “responsibility” of bidders, and that an exercise of such discretion will be presumed to be regular and valid. In its verified complaint for injunctive relief Oscar George alleges neither fraud nor lack of jurisdiction to overcome this presumption. We find that under the above principles the granting of injunctive relief premised strictly upon the Authority’s determination that Newgard was the lowest responsible bidder would be error. Our conclusion here does not, however, dispose of the instant preliminary injunction for reasons which appear below.

Next, we briefly address the merits of the Authority’s contention that the court erroneously substituted its own judgment for that of the Board in entering the instant preliminary injunction. The Authority contends that the basis of the decision was the court’s belief that the Board should have awarded the contract to Commercial because it was the lowest bidder, then refused to renegotiate the terms, and sued if Commercial failed to perform its contract. The Authority’s position is that the ruling substitutes the court’s opinion of how the Board should have awarded the contract for the Board’s statutorily granted discretion. Ill. Rev. Stat. 1979, ch. 85, par. 1244.

We have carefully examined the record of proceedings and find ample support for the Authority’s position. The record reveals that the court found the Board’s action in not holding Commercial to the contract to be a “usurpation of their statutory duties.” We think it is sufficient to note that such a finding simply is not consistent with the Hallett standard previously discussed.

Although we agree that the Hallett standard must be applied to a review of the Board’s actions in selecting the lowest responsible bidder, we find that Oscar George’s suit for injunctive relief is not entirely disposed of by such general limitations applicable to suits attacking the awarding of contracts pursuant to public bidding. Here we note that under section 25 of the Metropolitan Fair and Exposition Authority Act (Ill. Rev. Stat. 1979, ch. 85, par. 1245), any bidder submitting a bid in compliance with the requirements for bidding may bring suit in equity to compel compliance with the Act’s provisions relating to the awarding of contracts by the Board. (Ill. Rev. Stat. 1979, ch. 85, pars. 1244, 1245.) Thus, any alleged irregularity in the bidding procedure may support an action in equity within the contemplation of the statute.

In its complaint Oscar George alleges as grounds for injunctive relief that (1) the bid forms were ambiguous in that they failed to specify the amount of material and equipment a contractor will provide to the Authority, and (2) the Authority improperly returned Commercial’s $50,000 bid deposit in contravention to its published bid instructions. Accordingly, we view this as an action brought pursuant to section 25, focusing upon the correctness of the bidding procedure used by the Authority. Although the Hallett standard presumes that a board’s exercise of discretion is legal and proper, we here find no such presumption regarding its compliance with the procedures mandated under the instant statute. Therefore, we reject the Authority’s conclusion that the order granting the preliminary injunction must be reversed due to Oscar George’s failure to plead or prove fraud or for lack of jurisdiction.

Ill

Next, we are asked to determine whether the evidence adduced supports the instant preliminary injunction under traditional equitable principles. The Authority argues that it was incumbent upon Oscar George to plead and prove, inter alia, facts showing irreparable injury and lack of an adequate remedy at law as a basis for the issuance of a preliminary injunction. (McCormick v. Empire Accounts Service, Inc. (1977), 49 Ill. App. 3d 415, 364 N.E.2d 420.) Oscar George contends that under section 25 of the Metropolitan Fair and Exposition Authority Act (Ill. Rev. Stat. 1979, ch. 85, par. 1245) injunctive relief is an appropriate remedy to enforce compliance with the Act regardless of general equitable principles. The Authority’s position is that this section merely grants Oscar George standing to sue in equity but does not obviate the necessity of proving general equitable elements for injunctive relief.

Under general principles of equity, for preliminary injunctive relief it must be established, by the party seeking the injunction, that he has no adequate remedy at law and that he will be irreparably injured if the injunction is not granted. (Illinois Housing Development Authority v. Arbor Trails Development (1980), 84 Ill. App. 3d 97, 404 N.E.2d 1097.) However, no such showings are necessary where a statute authorizes injunctive relief to enforce compliance with provisions of a statute. (See generally People ex rel. Carpentier v. Goers (1960), 20 Ill. 2d 272, 170 N.E.2d 159; People v. Keeven (1979), 68 Ill. App. 3d 91, 385 N.E.2d 804; Director of the Illinois Department of Agriculture v. Carroll Feed Service, Inc. (1980), 83 Ill. App. 3d 164, 403 N.E.2d 762.) Oscar George has brought the instant suit pursuant to the statutory authorization in section 25. Accordingly, where Oscar George has alleged and shown that there has been a violation of the statute by the Authority, and that it has standing as a bidder to bring the action, there is no necessity to prove irreparable harm or the absence of an adequate remedy at law. See People v. Keeven.

We are mindful, however, that a preliminary injunction is an extraordinary remedy to be issued only with the utmost care. (Scott & Fetzer Co. v. Khan (1979), 74 Ill. App. 3d 400, 393 N.E.2d 102.) Accordingly, the foregoing exception to the general principles governing the granting of preliminary injunctive relief does not, in our opinion, obviate the well-known and long-established requirements that the party seeking the preliminary injunction must establish three remaining issues: (1) that the threatened injury to it will be immediate, certain and great if the injunction is denied while loss or inconvenience to the opposing party will be comparatively small and insignificant if it is granted; (2) that the requesting party has a reasonable likelihood of prevailing on the merits of the case; and (3) that granting the preliminary injunction will not have an injurious effect upon the general public. (See generally Illinois Housing Development Authority v. Arbor Trails Development (1980), 84 Ill. App. 3d 97, 404 N.E.2d 1097.) We find that section 25 does not require the dislocation of these traditional equitable principles with respect to the issuance of preliminary injunctive relief.

The Authority argues, inter alia, that the trial court must be reversed where Oscar George has failed to show a reasonable likelihood of prevailing on the merits. (Kable Printing Co. v. Mount Morris Bookbinders Union Local 65-B (1976), 63 Ill. 2d 514, 349 N.E.2d 36.) We note that likelihood of success on the merits does not require a showing which is sufficient to warrant relief after a final hearing. The party seeking the preliminary injunction, however, must establish to the satisfaction of the trial court that he will probably be entitled to the relief requested if the proof should sustain his allegations. (Donald McElroy, Inc. v. Delaney (1979), 72 Ill. App. 3d 285, 389 N.E.2d 1300.) The issuance or denial of a preliminary injunction is addressed to the trial court’s sound discretion and its findings will not be disturbed unless they are against the manifest weight of the evidence. (Illinois Housing Development Authority v. Arbor Trails Development.) On appeal, the reviewing court should confine itself to determination of whether the trial court has properly exercised its broad discretionary powers and each substantive issue should be considered only insofar as necessary to determine whether there has been an abuse of discretion. (Illinois Housing Development Authority v. Arbor Trails Development.) Accordingly, we must determine whether, on the basis of the evidence at the hearing on Oscar George’s motion, the trial court abused its discretion in entering the preliminary injunction order; considering substantive issues only insofar as necessary to determine whether there has been an abuse of the trial court’s discretion.

With this caveat in mind, we have examined the record of proceedings below. As previously noted, the only two allegations raised by Oscar George in its complaint challenging the Authority’s compliance with the mandated bidding process are that: (1) the Authority improperly returned Commercial’s $50,000 bid deposit in contravention to its published bid instructions and bid forms, and (2) the bid form was ambiguous in that section 2.01 does not specify the amount of material and equipment which the contractor will provide to the Authority.

Oscar George’s first contention that the $50,000 bid deposit was improperly returned to Commercial is premised upon its allegation that Commercial, as the lowest bidder, refused to enter into the proposed contract after its bid had been accepted. We believe that the evidence presented manifestly contraverts the underlying premise. First, the instructions to bidders required a $50,000 bid deposit which could be retained by the Authority “under the conditions stipulated in the bid.” Section 3.01 of the bid form permitted the Authority to retain the bid deposit only if (a) the bidder withdrew his bid after opening but prior to the signing of the contract, or (b) upon written notification of the award of the contract to him the bidder refused to enter into the contract. From our examination of the record, it is undisputed that neither of these conditions occurred. Moreover, Oscar George’s counsel, who was called as a witness by the Authority, testified that Commercial “never refused to enter into the contract.”

Secondly, in its findings, the court stated that “the Authority used incomprehensible excuses to release Commercial from their legal responsibility and release the fifty thousand dollar bid deposit.” This finding is simply not supported by the evidence and in our opinion appears palpably erroneous.

Next, the Authority argues that Oscar George has failed to show a likelihood of proving its allegation that the materials and equipment clause of the bid form “failed to describe with particularity the precise amount of materials to be supplied by the contractor.” We note that in addition to alleging that the “material and equipment” paragraph of the bid form was inadequate, Oscar George’s president testified that the bid documents were also vague because they did not state the number of hours that would be worked under the contract. This latter contention was not alleged in Oscar George’s complaint.

Section 2.01(f) of the bid form provides that “[i]n general, all material and equipment shall be furnished to Contractor by the Authority * * * Should it become necessary for Contractor to purchase any additional material or equipment, he shall do so only after written approval by the Authority.” The section of the Act governing advertisement for bids states that the advertisements “shall describe the character of the proposed contract in sufficient detail to fully advise prospective bidders of their obligations and to insure free and open competitive bidding.” Ill. Rev. Stat. 1979, ch. 85, par. 1245.

At the hearing on plaintiff’s motion for preliminary injunction, the following evidence was adduced in addition to the facts set out above. The general manager of McCormick Place testified that no precise estimate of hours was possible but that historical hours for shows held in previous years and a schedule of future shows were available to bidders upon request. Oscar George’s president testified that the quantity of hours was not important to him at the time and that Oscar George never asked for an explanation of the hours term.

Regarding the material and equipment clause, the general manager of McCormick Place testified that the Authority provides all of its own materials and that this clause was inserted to provide for emergencies such as weekends and holidays when the contractor might have to provide incidental materials. Further exhibits adduced at the hearing showed that the Authority’s accountants evaluated the bids based only upon the labor component of the proposal rather than materials, and that the Authority has supplied all necessary materials during the previous two fiscal years and had planned to. do so in the future. This testimony was uncontroverted. Oscar George’s president testified that the passage was unclear to him but that he never asked for an interpretation of the “materials and equipment” paragraph.

We have carefully considered the evidence presented. In view of the bidding requirements expressed in section 25, Oscar George has not sustained its burden of demonstrating that it will probably be entitled to the relief requested in its complaint. Section 25 mandates that advertisements for bids must describe the character of a proposed contract in sufficient detail so as to accomplish two useful purposes: (1) to advise prospective bidders of their obligations under the contract; and (2) to insure free and competitive bidding. (Ill. Rev. Stat. 1979, ch. 85, par. 1245.) In our view the evidence presented clearly failed to establish that the instant bid advertisement did not conform to these requirements.

The instant contract was in the nature of a requirement contract, and in view of the evidence, it is doubtful if the hours term could ever have been computed with exact precision. Moreover, Oscar George has not demonstrated that the material and equipment clause failed to conform in any material respect to the degree of specificity mandated by the bidding statute. The clause plainly states that “all material and equipment shall be furnished to the Contractor by the Authority.” We cannot conclude upon the evidence here that because the above general provision is modified to provide procedures whereby the contractor may purchase necessary additional material or equipment at the stipulated profit, the clause fails to meet the mandate of section 25. In this court’s opinion the pleadings and proofs in this case are inadequate to demonstrate that Oscar George will succeed on the merits and therefore that a preliminary injunction is warranted.

In so ruling we acknowledge the general aversion to the granting of preliminary injunctive relief recognized by our courts, particularly in situations where granting such relief would be to give the relief that could -only be obtained after a final hearing on the merits of the dispute. (P.S.L. Realty Co. v. Granite Investment Co. (1976), 42 Ill. App. 3d 697, 356 N.E.2d 605.) The disposition of the appeal in this manner renders it unnecessary to consider the Authority’s remaining contentions regarding the preliminary injunction or to address the Authority’s contention regarding the bond. However, we expressly intend no opinion as to the merits of any further proceedings not inconsistent with the views herein stated.

For the foregoing reasons, we dismiss the appeal from the temporary restraining order and reverse the order granting preliminary injunction.

Appeal No. 81-1173 dismissed; appeal No. 81-1439 reversed.

McNAMARA and WILSON, JJ., concur.


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID STRIBLING, Defendant-Appellant.
    First District (1st Division)
    No. 80-919
    Opinion filed March 8, 1982.

      Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Michele A. Grimaldi, and Michael J. Kelly, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

Following a jury trial, David Stribling was convicted of murder. He was sentenced to a term of imprisonment of not less than 250 years and not more than 500 years. Defendant now appeals his conviction.

On appeal, defendant argues that the trial court erred: (1) in failing to order a fitness hearing; (2) in denying his motion to suppress his post-arrest statement as the fruit of an unlawful arrest; and (3) in failing to comply with the requirements of Supreme Court Rule 401 regarding waiver of counsel.

We reverse and remand for a new trial.

On June 8,1974, Jack Fuerst was found dead in the service garage of his car dealership at 8159 S. Stoney Island in Chicago. In December of 1975, David Stribling (defendant) was first implicated in the Fuerst murder by an informant. On January 20, 1976, in an unrelated criminal proceeding, defendant was found unfit to stand trial and was committed to the Department of Mental Health. In February of 1977, defendant was found fit to stand trial. He was tried and convicted of the unrelated criminal matter. He served a sentence in the Illinois State Penitentiary and was paroled on December 15, 1977. Defendant was arrested by Chicago police officers on April 20, 1978, as he left a courtroom in which he had appeared on another unrelated matter. He was charged by indictment with murder and armed robbery. Following a jury trial, defendant was found guilty of murder and sentenced to serve a minimum of 250 years to a maximum of 500 years imprisonment in the Illinois Department of Corrections. Other pertinent facts will be mentioned in the opinion which follows.

Defendant argues that the trial court erred in failing to hold a hearing on his fitness to stand trial. In Illinois, a defendant is considered fit to stand trial if he possesses two abilities. A defendant must be able to understand the nature and purpose of the proceedings against him and to assist in his defense. (See Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—1(a)(1), (2).) The critical inquiry is whether the facts present a bona fide doubt as to whether a defendant possessed these two abilities. (People v. Murphy (1978), 72 Ill. 2d 421, 431, 381 N.E.2d 677.) The question of a defendant’s fitness may be raised by the State, the defendant himself, or the trial court. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—1(b).) Even if neither the defendant nor the State raises the issue, it is incumbent upon the trial court to order a fitness hearing once facts are brought to its attention which raise a bona fide doubt of a defendant’s fitness. See 72 Ill. 2d 421, 430.

In the present case, neither defendant nor the State requested a fitness hearing. Two different trial judges were apprised of the fact that defendant previously had been found unfit to stand trial, but neither ordered a fitness hearing. On May 15,1979, defendant moved to dismiss the charges against him on the ground that there was a 42-month delay between the Fuerst murder and the date when he was indicted. An oral stipulation of facts was presented to the court for the purpose of establishing defendant’s whereabouts between the date of the offense and the time of his arrest. It was stipulated that on January 20, 1976, in an unrelated criminal proceeding, defendant was found unfit and committed to the Department of Mental Health. It was further stipulated that approximately one year later he was found fit. He was tried and convicted on the unrelated matter. He served his sentence in the Illinois State Penitentiary and was paroled on December 15, 1977. On April 20, 1978, he was arrested and charged with the Fuerst murder.

On July 15, 1979, in a hearing before another judge on defendant’s motion to quash the arrest, the fact that defendant previously had been found unfit was again mentioned. The police officer who had arrested defendant for the Fuerst murder testified that police investigators were aware that defendant had been in a mental institution as a result of having been found unfit to stand trial on an unrelated charge. Defendant corroborated the officer’s testimony and further stated that he had been restored in front of a judge.

Generally, evidence of a prior adjudication of unfitness raises a presumption that the condition of unfitness remains. (People v. Williams (1980), 92 Ill. App. 3d 608, 612, 415 N.E.2d 1192.) This presumption continues until there has been a valid hearing adjudicating him fit. (92 Ill. App. 3d 608, 612.) Although the record in the instant case contains no documentation verifying defendant’s restoration, the fact that it was stipulated that he had been judicially restored effectively negates any presumption of unfitness. Defendant cannot on appeal complain of evidence which he has stipulated into the record. (People v. Hawkins (1963), 27 Ill. 2d 339, 341, 189 N.E.2d 252.) Nevertheless, we believe that the fact that defendant previously had been adjudicated unfit to stand trial is one factor which must be considered in deciding whether a fitness hearing should have been ordered in the trial court.

The record contains other evidence which brings into question whether defendant actually was able to understand the nature and purpose of the proceedings against him and to assist in his defense. When his case was called for trial on July 31, 1979, defendant demanded that his court-appointed attorney be dismissed. He accused the attorney of entering into a conspiracy with the prosecution and police. Defendant persisted in demanding that his trial attorney be dismissed. The trial judge warned defendant that his complaints and obstinate behavior in the jury’s presence could prejudice his cause. In response to the judge’s admonishment, defendant said, “I don’t understand what your honor is saying.” Eventually, the trial judge was convinced that defendant’s attitude toward his court-appointed attorney required that the representation be terminated and defendant proceeded pro se. Defendant’s comments during trial and his pro se appellate brief indicate that he was obsessed with the notion that he had been conspired against and that he was irrationally suspicious of everyone involved in the trial court proceeding.

To support his allegation of the existence of a conspiracy, defendant tendered to the trial court a list of 83 witnesses he wanted to subpoena. In opening argument, defendant stated that he intended to prove that the Fuerst murder never happened. He presented no evidence whatsoever in support of either his conspiracy allegation or his defense theory.

The State argues that defendant’s cross-examination of witnesses, his own testimony and his objections during trial demonstrate his “cunning ability” to understand the nature of the proceedings and to cooperate with his counsel. It is evident from the record that defendant is relatively familiar with legal terminology and courtroom procedure. Defendant’s familiarity with legal jargon and procedure, however, does not necessarily indicate that he was able to understand the nature of the proceedings against him or to assist in his defense. In our opinion, defendant’s cross-examination of State’s witnesses, his constant interjection of inappropriate objections “for the record,” and his rambling closing argument demonstrate an inadequate ability to assist in his own defense.

As the United States Supreme Court stated in Drope v. Missouri, “[tjhere are 0 ° ° no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.” (Drope v. Missouri (1975), 420 U.S. 162, 180, 43 L. Ed. 2d 103, 118, 95 S. Ct. 896, 898.) In our judgment, the fact that defendant previously had been diagnosed as unfit to stand trial, coupled with his conduct at trial, raised a bona fide doubt of his fitness to stand trial. We, therefore, reverse and remand for a fitness hearing and a new trial.

Defendant also contends that the trial court erred in denying his motion to suppress his confession. He argues that his confession was the fruit of an arrest that was not based on probable cause. We find no merit in this contention. Additionally, he claims that the trial court erred in forcing him to trial without counsel in that it failed to comply with the requirements of Supreme Court Rule 401 regarding waiver of counsel. We need not address this issue in light of our reversal on the fitness issue.

Judgment reversed; cause remanded for a new trial.

CAMPBELL, P. J„ and O’CONNOR, J., concur.