author: JUSTICE GOLDBERG

text:
    RIEMORE E. NUGENT COLLINS, Plaintiff-Appellee, v. BEVERLY NUGENT, Indiv. and as Ex’x of the Estate of Jack A. Nugent, Deceased, et al., Defendants-Appellants.
    First District (1st Division)
    No. 81—2768
    Opinion filed December 6, 1982.

      Schumacher, Jones, Kelly, Olson & Pusch, of Chicago (H. Barringer Pusch, Richard A. Marsh, and Gerald P. Giese, of counsel), for appellants.
    Mayer, Brown & Platt, of Chicago (Patrick W. O’Brien, George T. Bogert, and Barbara Bertok, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

The record brings before us an intrafamily struggle for ownership of a number of closely held corporate entities. This suit was brought by Riemore E. Nugent Collins (plaintiff), both individually and as beneficiary and trustee of various trusts, against a variety of defendants some of whom are also beneficiaries and trustees of trusts. In essence, however, plaintiff is suing the widow and heirs of her deceased half brother John A. Nugent. Plaintiff seeks rescission of a “realignment” of the family companies commenced in 1959 and a declaratory judgment regarding the ownership of the stock in the family companies. After hearing the case without a jury, the trial court entered judgment for plaintiff. Defendants appeal.

Plaintiff’s father, William J. Nugent, was founder, president, and unchallenged director of the Nugent companies. These companies included Great Lakes Storage and Contracting Co., Maritime Services, Ltd., Midwest Machinery Movers, Inc., Mechanical Wallmaster, Inc., Nugent’s-American Contractors, Inc., Nugent Services, Inc., and Superior Dock & Warehouse Co. It is not necessary to outline the various modifications in the structure of these companies.

William Nugent’s wife was Myrtle Nugent. Plaintiff was the only child of that marriage. Myrtle had a son, John, by a previous marriage. After Myrtle’s marriage to William, John lived in their home and, although never formally adopted by William, assumed the name of John or Jack Nugent. John Nugent was 20 years older than plaintiff. They were very close, and plaintiff was the flower girl at John’s wedding. John became quite active in the operation of the Nugent companies. He was considered William’s chief aide in managing the business.

On August 16, 1951, a trust was established by William Nugent. Defendants’ counsel refers to this trust as a “certain” trust. Plaintiff’s counsel refer to the trust as the “1951 trust.” The trial court found in the judgment that this trust was also known as the “Riemore Trust,” the “Riemore Nugent Trust” and by other names. We will use the designation, “1951 trust.” John Nugent was named trustee of this trust. Plaintiff was the sole beneficiary. John eventually resigned as trustee on December 30, 1958. Myrtle became successor trustee until February 24, 1959. Then, by simultaneous instruments, Myrtle resigned and plaintiff appointed herself trustee. Therefore, after February 24, 1959, plaintiff was both beneficiary and trustee of the 1951 trust.

The corpus of the 1951 trust included the stock of Mechanical Wallmaster, Midwest Machinery Movers, and Maritime Services. By the terms of the trust, plaintiff was to receive income therefrom until her 30th birthday. Then the trust was to terminate and plaintiff would become outright owner of the companies involved.

In 1954, plaintiff enrolled at Northwestern University. After her first semester there, she became engaged to her hairdresser, Carl Rosauer. She withdrew from college and they were married in 1955. William Nugent did not approve of the marriage. However, the birth of plaintiff’s son, William Rosauer, in 1956, seems to have changed William Nugent’s attitude toward both Carl and the marriage. In November 1956, William Nugent established the William Rosauer trust which granted income for life to plaintiff and Myrtle with the remainder to plaintiff’s children in equal shares. The stock of Nugent Services and Nugent’s-American Contractors was transferred into this trust. In 1957, Carl Rosauer began to work for the Nugent companies and he became secretary-treasurer.

William Nugent died suddenly on May 12, 1958. His last will created a testimentary residual trust. Under this trust Myrtle received income for life. Plaintiff received the income after the death of her mother. John Nugent was left without any interest in the companies and was granted only a $15,000 bequest.

At the time of William Nugent’s death, the number of Nugent companies had been reduced by merger of Midwest Machinery Movers and Mechanical Wallmaster into Maritime Services. The stock of Maritime Services continued to be owned by the 1951 trust. The William Rosauer trust owned the stock in Nugent’s-American and Nugent Services. Superior Dock & Warehouse was owned outright by William Nugent and became part of his estate. Myrtle Nugent became the owner of Great Lakes Storage.

Upon the death of William Nugent, John Nugent became president of the Nugent companies though he had no proprietary interest in them. John was dissatisfied with the situation. Soon after the death of William Nugent, John approached both plaintiff and Myrtle. He insisted he receive half of the Ñugent companies. He warned that if they did not accede to his request he would leave the companies and either work for a competitor or start his own business. Plaintiff and Myrtle agreed to John’s demand. Plaintiff testified she did so reluctantly.

Thereafter, in 1959, a complex series of transactions was executed. Though the specifics of the plan are most complicated, and sometimes vague, John Nugent and plaintiff established the John A. Nugent trust and the Riemore E. Nugent trust, respectively. Although a concise statement of the entire realignment is impossible, it appears that the trusts were initiated through a loan from the Myrtle C. Nugent trust. The trusts would borrow cash from Great Lakes Storage, with the John A. Nugent trust borrowing additional money from the Myrtle Nugent trust. These trusts used the cash to purchase shares of the Nugent companies from the various trusts which owned them. Thereafter, the trusts would pay back the loans through their share of the profits generated by the Nugent companies.

An accountant testified that the realignment agreement and the subsequent buy-sell agreements created a “closed” system whereby the Nugent companies would really not have to generate a profit to keep the system operating'and to continue the transfer of the ownership of Nugent companies’ stock. However, the accountant admitted his calculations did not include family accounts through which both John Nugent’s and plaintiff’s families would regularly draw money from the companies.

The system was conceived by Edmund Spencer, who had been William Nugent’s personal attorney, accountant and friend. Spencer also did considerable legal and tax work for the Nugent companies. The parties stipulated he had drafted the 1951 trust and other relevant trust documents. Before the system went into effect, Spencer discussed the plan with attorneys Fred Jonas, attorney for the William Nugent estate, and Fred Turner, attorney for John Nugent. Both Jonas and Turner died before this litigation commenced.

In the mid-1960s friction developed between the Nugent and Rosauer families. John tried to fire Carl. Carl hired an attorney, Frank Wright, who counseled Carl about his rights in the Nugent companies. The attempt to fire Carl was unsuccessful and there were discussions toward an amicable division of the family companies, but the discussions failed.

In 1974 plaintiff divorced her husband. He then left the Nugent companies. Plaintiff took a more active role in the operations of the business. She testified that she started coming to the companies’ office in Chicago in an effort to learn the business. John Nugent died on January 11, 1979. Upon John’s death plaintiff became president of the Nugent companies. When Myrtle was informed of the death of her son, she immediately changed her will and gave her entire estate to plaintiff. Myrtle Nugent died on February 14, 1979. This suit was filed on October 23,1979.

Virtually all of the facts set forth above are accepted by both parties. However, the parties dispute additional facts and the interpretation thereof. Therefore, we must briefly outline some of the relevant testimony.

Plaintiff testified that during her “early years” she was handicapped by dyslexia, a learning difficulty which affected her reading ability. Plaintiff stated she had absolutely no knowledge of the terms or even of the existence of the 1951 trust, until the trust instrument was discovered inadvertently in 1979. She testified John never told her about it and never mentioned it to her. Plaintiff believed all the income she was receiving from the trust was actually from her father’s estate.

“Right after” her father died, John told her she and their mother had received “everything” and he had received “nothing.” John demanded half of the companies. He told her he would go into competition and “you won’t have anything.” About a week later, plaintiff discussed this demand with her mother, her husband, and Edmund Spencer. Her husband and Edmund Spencer advised her to accept John’s demands. Spencer told her if she did not acquiesce John would go into business “and you will be sitting there with nothing.” Plaintiff had no discussion with Spencer concerning “outside, non-company connected counsel” to advise her.

Plaintiff did not attend any meeting concerning the plan to reorganize the companies. Her husband went to these meetings. By letter dated August 8, 1958, Mr. Spencer sent copies of the proposed plan to plaintiff’s, husband. She testified this letter and the document were never shown to her. Similarly she stated she never saw a letter from Mr. Spencer dated September 25, 1958, addressed to her husband or an analysis of the Nugent companies which was enclosed. Plaintiff testified she did not understand the plan. However, she realized the various documents she was signing in great number were to effectuate the realignment as demanded by John. From time to time, her husband would bring home various checks and documents for her to sign. She would simply sign at the indicated places without reading the documents and without understanding their significance. Even between 1960 and 1962 she signed many checks tendered to her by her husband. Some of the checks had her initials affixed so as to indicate where she was to sign or endorse them.

Plaintiff testified that during May or June of 1979, she was in the Kinzie Street office. Joanne Gorczyza had been employed by the Nu-gent companies since July 1948. She supervised accounting operations at the Kinzie Street office since 1952. Gorczyza testified the company safe had a combination lock. In one corner of the safe was a locked compartment with three drawers. One of these drawers was also locked. She has kept possession of all of these keys. During May or June of 1979, she received a building violation notice. At that time plaintiff was in the office. She brought plaintiff a number of documents from the safe pertaining to the violation. She also brought plaintiff the original document containing the 1951 trust. Plaintiff testified that was the first time she had ever seen this trust document or had knowledge of its existence.

Brian Lambert testified he is a certified public accountant who was assigned in late 1978 to audit the Nugent companies and examine “some questionable expenses” in the course of preparing a financial statement. Plaintiff specifically asked him to examine a series of checks she signed at a particular time every year and to determine “what they meant.”

When the witness began his audit, he was presented with “literally a garbage bag” full of checks and bank statements. During his analysis, the witness noted reference to the 1951 trust and the Myrtle C. Nugent for Riemore E. Nugent trust. He questioned plaintiff regarding those trusts. Plaintiff advised she had no knowledge of them. Plaintiff also stated she did not know the significance of various checks she endorsed to effectuate the reorganization of the Nugent companies and the repayment of various loans.

After the 1951 trust was uncovered in 1979, Lambert was able to determine that the 1951 trust and the Myrtle Nugent for Riemore Nu-gent trust were one and the same. Furthermore, only after perusing the 1951 trust instrument could the witness successfully determine how the Nugent companies were realigned and how the system, which effectuated the reorganization, operated. The witness stated he had never seen a system to repay loans as complex as this.

Jerome Hankin testified he was comptroller of the Nugent companies from 1962 through 1978. When he came to the companies they were on the verge of bankruptcy. Neither John nor plaintiff knew very much about the business. After 1966 the witness “basically ran the companies” himself “by default.” The companies “really began to take off” in 1967. The witness believed he was the reason for the dramatic financial turnaround of the Nugent companies.

Hankin testified he was responsible for keeping the books for both the companies and the family trusts. He prepared the checks which effectuated the buy-sell agreements, and loan repayments. That job took no longer than a few hours a year. The witness also helped prepare the tax returns of the 1951 trust. Plaintiff signed those returns.

Hankin stated he had many discussions with plaintiff about the business. In 1962 or 1963 plaintiff “bemoaned” the fact that she and her mother were forced to sell half the companies to John. However, plaintiff felt she had to because “John was active in the business and she knew nothing abut it at that time.” To his knowledge the first time plaintiff requested the trust and corporate records of the companies was during the early part of 1974. He testifed he frequently gave Rosauer checks to take home for plaintiff’s signature during the years 1962 to 1974. The checks were marked to evidence the places for signature.

In this regard, plaintiff testified she knew Jerome Hankin before she became active in the Nugent business. She and her husband Rosauer saw Hankin and his wife socially. She never discussed the 1951 trust with Hankin. She did speak to him about the 1959 trusts.

Hankin testified he discussed with plaintiff the system to reorganize the companies. He explained to her how the trusts were interrelated and how the various loans were repaid. The 1951 trust was specifically discussed. The witness stated these discussions took place during the 1960s and plaintiff was aware she owned half of all the companies. Plaintiff testified neither she nor Hankin understood the reorganization. Hankin testified Mr. Spencer had received letters from the “government” to explain the absence of “estate tax” on the reorganization. However the government was “so confused” about the plan they allowed the limitation statute to run without action.

The witness held plaintiff partially responsible for a criminal investigation into his taxes. However, he also held John Nugent and his wife and son responsible for forcing him to leave the Nugent companies.

Carl Rosauer testified that in 1958 John Nugent and his attorney Fred Turner told him that John wanted half of the companies or he would start his own business and “eventually take all of the employees away.” Rosauer stated he and Edmund Spencer discussed the matter and Spencer explained the specifics of the realignment to plaintiff and himself. Plaintiff agreed that the plan was the best way to deal with the situation. Plaintiff also discussed the plan with the attorney of her father’s estate, Fred Jones, and plaintiff’s confidant,

Dr. Minnema. The witness stated the plaintiff wanted to be “fair” with John, and she believed that if she did not accede to his demands, her mother would leave everything she had to John anyway.

In 1966 he and plaintiff hired Frank Wright to counsel them regarding the prospective split of the companies. Plaintiff testified Rosauer himself hired Mr. Wright. She stated she met Mr. Wright only twice; once at her home and once later at Navy Pier. Rosauer testified that Wright wrote a long letter later described as defendants’ Exhibit 38, at the request of plaintiff and himself. The witness did not remember how the letter came to their home, but Mr. Wright customarily hand delivered documents to their home. He himself went over to Frank Wright’s home about a year before trial and got a copy of defendants’ Exhibit 38. He remembers reading the letter and discussing it with plaintiff. In his deposition Rosauer manifested doubt as to whether this letter was mailed or hand delivered. He did not know which was correct. Rosauer testified he, plaintiff and Frank Wright discussed the 1951 trust. In his deposition Rosauer testified he did not discuss this trust with the plaintiff.

He would often bring documents and checks home from the office for plaintiff to sign. He testified plaintiff would always ask him “about what she was signing.” Rosauer stated it took about a year to work out the entire plan.

In his divorce decree from plaintiff, he was awarded a cash settlement, which would come out of the Nugent companies. He and plaintiff had borrowed money from the William Rosauer trust. However, after litigation, the witness had to repay the loan himself. The witness was either in the process, or would soon be in the process, of suing plaintiff for not satisfying the judgment in the divorce decree. He testified that the William Rosauer trust obtained a judgment against him for about $74,000. .

Frank J. Wright, a retired lawyer, testified he first met Carl Rosauer about June of 1966. He did not meet the plaintiff at that time. He was retained by Rosauer to represent Rosauer when John Nugent attempted to discharge him. However, he felt that he represented plaintiff as well as Rosauer. He spoke to Rosauer on almost every business day until the end of 1967. He first met plaintiff at her home, although he did not specify the date of the first meeting. He testified there was “complete antagonism” between Rosauer and plaintiff on the one hand and John Nugent on the other. From time to time Wright had contact with the Nugent companies. When he first met Rosauer, the shares of all of these companies had been evenly divided between plaintiff’s trust (Riemore E. Nugent trust of February 1959) and John Nugent’s trust (John A. Nugent trust).

Wright testified he prepared the 16-page copy of a letter referred to as defendants’ Exhibit 38, dated as of December 8, 1967. He testified he prepared the original letter for clarifying the so-called oral family settlement agreement between plaintiff and John Nugent. The witness stated he prepared the letter after different informal discussions with plaintiff and Rosauer. However, the copy of the letter is addressed to the plaintiff only. He testified that he carried the original and two copies of the letter to the Rosauer home and delivered them to “Carl [Rosauer] or Riemore [plaintiff].” He had no recollection of either Rosauer or plaintiff requesting such a letter. However, as to which one of these persons the delivery was made, he testified, “They would both be there.” He also said “Well, its made out to Riemore [plaintiff], so I presume I gave it to her.”

Wright testified he had a file at his home containing various documents. In the fall of 1980, he gave this file to Rosauer. Apparently the file contained the copy of the letter identified as defendants’ Exhibit 38. The photocopy of this document shows it was prepared on copy paper as evidenced by the word “COPY” in large vertical letters thereon.

Plaintiff testified she never received this letter. She did not discuss the letter or any letters from Mr. Wright, never was at his office and never retained him. Her husband retained Wright and she met him two times. The reason for both of these meetings was the discharge of Carl Rosauer by John Nugent. Plaintiff never paid Wright for any of his services. The trial court denied defendants’ motion to admit the letter into evidence.

Edmund Spencer was close to. 85 years old when he testified. He was both an attorney and a certified public accountant. He practiced law from 1943 until his retirement in 1969. He considered that he represented “everyone” in the family when he effected the company realignment. He acted as corporate and tax advisor for the late William Nugent from 1945 until Nugent’s death. He never personally rendered legal services or advice to plaintiff. However, he discussed the realignment plan with everybody in the family including plaintiff. Concerning plaintiff he testified, “I think I spoke to her a couple of times.” In explaining the plan to plaintiff, the witness made specific reference to the 1951 trust. Plaintiff testified, “I trusted Mr. Spencer.” Spencer frankly told the trial court, “I am ashamed to admit it but my memory is so bad.”

Edmund Spencer also testified that he cooperated with two attorneys named Fred Turner and Fred Jonas in the matter of the realignment. At that time Jonas was the attorney for the estate of William Nugent. However, Spencer testified he supervised all corporate matters in accounting and prepared income tax returns for family members. With reference to the book value of the stock of all of the Nu-gent companies in 1959, Spencer stated he himself was not an appraiser and he did not obtain appraisals. He could not state the cash position of the various Nugent companies at the time of the death of William Nugent. On cross-examination on the issue as to whether plaintiff was present when the witness met with Fred Jonas, John Nugent, Carl Rosauer and Fredrick Turner, the witness answered, “For you to expect me to recall people present at every meeting is utterly impossible, even when I still had my brains.”

Plaintiff testified briefly on rebuttal. She repeated that the attorney Frank Wright was present in her home once. This was during the summer of 1966. This visit was at the request of Rosauer when John Nugent was attempting to discharge him. The only other time she saw Frank Wright was at a meeting of the shareholders and directors of the Nugent companies.

After hearing oral argument, both sides filed proposed findings of fact and conclusions of law with the trial court. The trial court accepted the findings and conclusions submitted by plaintiff and final judgment was entered accordingly.

Although the briefs filed by both parties are inordinate in length and unduly complicated, in our opinion there are three decisive issues here which we will consider in order:

(1) Was there a fiduciary relationship between the late John Nu-gent and plaintiff?

(2) If so, was this relationship breached by the dominant party?

(3) Is plaintiff’s suit barred by laches?

I

In view of the fact that John Nugent was trustee of the 1951 trust with plaintiff as sole beneficiary thereof, it follows necessarily that the relationship between them was fiduciary as a matter of law. As pointed out by the supreme court in Home Federal Savings & Loan Association v. Zarkin (1982), 89 Ill. 2d 232, 239, 432 N.E.2d 841, the relationship between trustee and beneficiary is such that “the former is charged with equitable duties toward the latter.” The court describes those duties as resting upon the trustee “to serve the interests of the beneficiary with complete loyalty, excluding all self-interest,” which “prohibits him from dealing with the trust property for his individual benefit.” 89 Ill. 2d 232, 239.

When John Nugent resigned as trustee of the 1951 trust, the relationship undoubtedly continued to be fiduciary as was factually determined by the trial court. John was most active in the operation of the family business. Plaintiff on the other hand was inactive. Undoubtedly in his day-to-day operation of the business, John was in effect an agent or a partner of the plaintiff so that fiduciary duties were imposed upon him.

Where the fiduciary relationship does not exist as a matter of law, clear and convincing evidence is required to establish such a confidential relationship. This burden then rested upon plaintiff to prove the existence of a fiduciary relationship. It has been stated many times that courts have refrained from stating the exact boundaries of this relationship. It has been repeatedly held in describing this type of fiduciary relation (Kester v. Crilly (1950), 405 Ill. 425, 432, 91 N.E.2d 419):

“In general, in the law of constructive trusts, a confidential relationship exists in all cases when one person reposes trust and confidence in another who thereby gains a resulting influence and superiority over the first. [Citations.] The relationship may exist as a matter of law, as between principal and agent, guardian and ward, attorney and client, and the like, or it may be moral, social, domestic, or even personal. *** Factors to be taken into consideration are degree of kinship, if any, disparity in age, health, mental condition, education and business experience between the parties, and the extent to which the allegedly servient party entrusts the handling of his business and financial affairs to the other and reposes faith and confidence in him. The mere existence of a confidential relationship prohibits the dominant party from seeking any selfish benefit during the course of the relationship and affords a basis for fastening a constructive trust upon property so acquired.”

In the instant case, the evidence proves clearly and convincingly that the relationship between John and plaintiff was fiduciary even in the absence of a legal relationship between them such as trustee and beneficiary and principal and agent. John was a half brother of plaintiff, 20 years older than she. For years they lived in the same household as brother and sister. Plaintiff did not initiate her active role in the business so as to learn something about its operation until 1974 when she divorced her husband. See Badger Building Corp. v. Gregoric (1981), 102 Ill. App. 3d 594, 597-98, 430 N.E.2d 561, appeal denied (1982), 91 Ill. 2d 551, and cases there cited.

Plaintiff constantly entrusted the handling of her business and financial affairs to John Nugent. She constantly reposed faith and confidence in the manner in which he handled the business. He devoted his entire time to the business and she was busy with domestic affairs and with rearing her children. Plaintiff signed a great number of checks and documents without question because of the confidence she had in John. The fact that she agreed, although reluctantly, to permit John to become half owner of the companies is in itself another example of the confidence which she reposed in him.

The trial judge expressly found plaintiff had a great love for her half brother, “reposed great trust and confidence in him” and also “relied upon him to handle business affairs for her.” The trial court heard all of the evidence in open court together with lengthy argument by able counsel. This situation should not be confused with one in which, under former practice, the evidence in the type of case before us would be heard by a master in chancery and the record reviewed by the court. In the case at bar, the general rule of long standing applies that because the trial judge has heard the testimony in open court and seen and heard the witnesses, a reviewing court “will not reverse his findings of fact unless they are palpably against the weight of the evidence.” (Kolze v. Fordtran (1952), 412 Ill. 461, 468-69, 107 N.E.2d 686.) We conclude that the findings of the trial court are not contrary to the manifest weight of the evidence. (See Greene v. City of Chicago (1978), 73 Ill. 2d 100, 110, 382 N.E.2d 1205, quoting Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624.) Thus, in the case at bar we must accept that there was at all material times a fiduciary relationship between the plaintiff and the late John Nugent.

II

Citation of authority is hardly necessary to support the legal proposition that establishment of the existence of the fiduciary or confidential relationship places the burden of proof upon those who seek to support the attacked transaction. In Curtis v. Fisher (1950), 406 Ill. 102, 108, 92 N.E.2d 327, the supreme court held:

“In a case where the relationship was quite similar we said that transactions of parties standing in a fiduciary relation are prima facie voidable on grounds of public policy; that they will be closely scrutinized by a court of equity and relief granted unless the parties claiming the benefit of the contracts show by clear and convincing proof that they have acted in good faith and have not betrayed the confidence reposed in them. [Citation.]”

One of the latest pronouncements by the supreme court in a similar situation involving an express trust is set forth in Home Federal Savings & Loan Association v. Zarkin (1982), 89 Ill. 2d 232, 245-46:

“Fiduciaries are not prohibited from having such direct dealings with their beneficiaries, but such transactions are subject to special scrutiny by the courts, and the burden is on the fiduciary to show that the transaction was fair.”

In addition, the court in Curtis went further and set out the following principles to be applied in this type of situation (Curtis v. Fisher (1950), 406 Ill. 102, 108-09):

“In Krieg v. Felgner, 400 Ill. 113, quoting from the opinion in Schueler v. Blomstrand, 394 Ill. 600, it was stated, ‘Important factors in determining whether a particular transaction is fair include a showing by the fiduciary (1) that he has made a free and frank disclosure of all the relevant information which he had; (2) that the consideration was adequate, and (3) that the principal had competent and independent advice before completing the transaction.’ ”

Similarly in Perry v. Elmore (1980), 87 Ill. App. 3d 996, 999, 410 N.E.2d 371, we find the same guidelines expressly approved.

Considering these guidelines in order, first is the issue of free and frank disclosure of all of the facts by the fiduciary. The evidence here greatly favors plaintiff. The facts regarding the realignment were never disclosed to plaintiff by any of the other parties.

This appears clearly and definitely from plaintiff’s own testimony. These is also testimony to the contrary that plaintiff knew about the existence of the 1951 trusts. But in any event, it appears that plaintiff was never fully informed of the trust provisions or of the legal significance of the trust. This conclusion is strongly supported by the testimony of Brian Lambert, the certified accountant. Nor can it be said that plaintiff’s signing of numerous checks and other documents from time to time operated as a full and complete disclosure of all of the facts to plaintiff. Additionally, even accepting the testimony of Carl Rosauer, Frank J: Wright, Edmund Spencer and Jerome Hankin, their testimony neither individually nor collectively, established a full and fair disclosure of all of the facts to plaintiff. The material facts here were not apparent from examination of any one document.

As regards the adequacy of consideration, the evidence favoring plaintiff is even stronger. It seems to us that the entire operation of the realignment plan is one of the most complicated and difficult systems ever devised by the fertile mind of man. We have done our best to study this situation and attempt to understand it. In oral argument, opposing counsel did their best to explain this system to this court. The conclusion we have reached is that this plan represents simply a most complicated system of shifting funds from one entity to another. The net result of the system was that John Nugent began with no proprietary interest of any kind in the various trusts and corporations here involved, but, at the time of his death in January of 1979, he was an equal partner with plaintiff in the entire Nugent family business. This was apparently accomplished "without the payment from John to the plaintiff of any money or other thing of value. In effect plaintiff gave John an equal one-half interest in the entire family business as a gift.

Finally, the record shows beyond doubt that plaintiff never had any competent and independent advice before she completed this transaction. In this regard, Edmund Spencer testified simply that he thought he spoke to plaintiff about the transaction “a couple of times.” In fact, it may be said that it was his duty to take affirmative steps to make certain plaintiff had competent and independent advice. Instead, Spencer took the position that he represented “everyone” in the family. It was manifestly impossible for him to properly “serve two masters,” John Nugent and the plaintiff, in a situation of this kind. We need add simply that his advanced age made it patently impossible for him to give testimony of substantial value.

Considering other evidence, plaintiff’s testimony seems clear and to the point. In fact, the only witnesses whose testimony stands unimpeached are plaintiff and the accountant Brian Lambert. The remaining witnesses tendered by defendants are all properly subject to adverse criticism.

Jerome Hankin, comptroller of the Nugent companies, was much impressed with his own ability and the fact that he himself actually, according to his version, was responsible for the success of the Nu-gent companies. However, his bias against plaintiff is strongly evidenced. He considered plaintiff responsible for a criminal investigation into payment of his taxes.

The above statement of facts shows that Carl Rosauer was far from being a credible witness. For some undisclosed reason after suit was filed he visited the home of his former attorney Frank Wright and obtained the lawyer’s entire file regarding the Nugent family business, including a copy of the lengthy letter allegedly addressed to plaintiff by Wright. Also his testimony was clouded by the fact that he had borrowed money from his son’s trust, the William Rosauer trust which had obtained a judgment against him for $74,000. He admitted that he was about to sue plaintiff because of the fact that he was obliged to repay the loan himself.

Frank J. Wright, now retired, testified that he acted as attorney for Rosauer. He stated he wrote the letter dated December 8, 1967, and addressed to plaintiff (defendant’s Exhibit 38), after discussions with both plaintiff and Rosauer. Although he admitted Rosauer was his client, he addressed the letter to the plaintiff only. His memory as to whom he delivered the letter was virtually nonexistent. He said, “I can’t remember.” He finally took refuge in the statement that since the letter was addressed to plaintiff he “presumes” he gave it to her. Against this there is clear and positive denial by plaintiff. She testified on rebuttal that she met Wright twice only, once at her home and once at Navy Pier. The reason for these meetings was the attempted discharge of Rosauer by John Nugent.

In this regard, defendants contend the trial court should have received the 16-page, single-spaced copy of the letter dated December 8, 1967, addressed to plaintiff. Plaintiff denied she had ever previously seen this letter. The trial court sustained an objection to the letter. The trial court sustained an objection to the letter. The letter purports to be as stated therein, “a rough outline of the family history. It is in no sense a definitive accountant’s treatment of the financial aspects involved.” Also, defendants’ Exhibit 38 purports only to be a copy. There is no evidence as to whether it is in fact a true and correct copy of the original. Also, as shown, there is a strong denial by plaintiff that she ever received this letter. In any event, even assuming that the letter had been received in evidence, we do not find that it has sufficient probative value to satisfy the requirements above discussed in determining that the transaction here was fair and in good faith. This letter has no materiality regarding a violation of the fiduciary relationship. Under no circumstances can it be considered as independent advice concerning a transaction completed some years prior. At best, the ruling of the trial court in this regard can be classified as harmless error.

We will add that the record and the briefs here show a strained relationship between the trial judge and able counsel for defendants. The trial record could have been improved by elimination of a number of superfluous statements. Although defendants complain about rulings and remarks by the trial court, it is the duty of this court to pass upon the legal propriety of the judgment entered by the trial court. We are not concerned with the various statements made by either the court or by counsel. The only issue before us is the legal propriety of the judgment appealed from; not the alleged motivation for that judgment. See City of Kankakee v. Small (1925), 317 Ill. 55, 64, 147 N.E.404; Waldron v. Waldron (1973), 13 Ill. App. 3d 964, 968, 301 N.E.2d 167.

In sum, we have reached the firm conclusion that the judgment appealed from is not contrary to the manifest weight of the evidence. Defendants have failed to sustain their position by clear and convincing evidence or even by a preponderance of the evidence.

Ill

It is necessary to consider the issue of laches “in the light of the circumstances of each case.” (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 553, 147 N.E.2d 341.) It has also been stated that the existence of laches “depends on whether, under all circumstances of a particular case, a plaintiff is chargeable with want of due diligence in failing to institute proceedings before he did.” (12 Ill. 2d 547, 552.) However, a distinction must be made between the case at bar and cases such as Pyle and Slatin’s Properties, Inc. v. Hassler (1972), 53 Ill. 2d 325, 291 N.E.2d 641. In Pyle, one of the parties paid taxes and leased a certain property for oil and gas for a period of 20 consecutive years. The court pointed out that a mineral estate was involved “the character of which necessitated a greater degree of diligence and promptness than would be otherwise required.” (12 Ill. 2d 547, 555.) Similarly, in Slatin’s Properties, Inc., defendants paid taxes on the real estate involved for approximately 40 years during which time plaintiff took no action . 53 Ill. 2d 325, 331.

We conclude the situation is far different “in those instances when the existence of a fiduciary relationship is clearly established.” (Crowell v. Bilandic (1980), 81 Ill. 2d 422, 428, 411 N.E.2d 16.) Similarly, in Chicago Park District v. Kenroy, Inc. (1980), 78 Ill. 2d 555, 562, 402 N.E.2d 181, the court pointed out that a “person occupying the relation of fiduciary or of confidence is under a duty to reveal the facts to the plaintiff (the other party).” We note that Chicago Park District and Crowell involved an issue not of laches but as to whether defendants were guilty of fraudulent concealment sufficient to toll a statute of limitations. However, in Prueter v. Bork (1981), 105 Ill. App. 3d 1003, 1007, 435 N.E.2d 109, on the issue of laches, this court held:

“Defendants finally contend that plaintiff’s action is barred by laches. Although the period of time on which laches is predicated normally begins to run either when the plaintiff learns of ■ the facts on which his rights are based or when a reasonable person would acquire such knowledge [citation], a different rule applies where a fiduciary relationship is involved. Where a fiduciary has a duty to disclose certain facts to the plaintiff but fraudulently fails to do so, plaintiff’s failure to use diligence to ascertain these facts is excused. In such cases, the running of time begins when the fraud is actually discovered by plaintiff. [Citations.]”

In the case before us, plaintiff urges there was a fraudulent concealment by John Nugent. The trial court found that this fraudulent concealment by a fiduciary defeats the defense of laches. Defendants take the position that there was an unreasonable delay by plaintiff in enforcing her rights combined with prejudice to defendants resulting from this delay. Defendants’ argument is predicated primarily upon the fact that John Nugent, Myrtle Nugent, Fred Jonas, and Fred Turner were all deceased. Defendants urge certain events took place which show harm because of delay. These events are: receipt by plaintiff of distribution checks, the signing of such checks by plaintiff, the execution of income tax returns by plaintiff, and also the delivery of the Frank Wright letter to plaintiff. The last of these items is March 1974 when plaintiff first became an operating officer of the Nugent companies.

Under the view we take of this record, it is not necessary for us to consider the doctrine of fraudulent concealment. It seems to us that the crux of the matter here is a determination of whether delay by plaintiff was so harmful to defendants that the equitable doctrine of laches should be invoked. In our opinion, the situation goes deeper than the issue of discovery of the 1951 trust. In essence, plaintiff divested herself of a one-half interest in valuable property without receiving adequate consideration. There is no evidence that a full disclosure of all of the facts was ever made to plaintiff by any of the parties. It does not appear that Edmund Spencer ever disclosed these facts to plaintiff or that any person at any time did so.

Nor would the testimony of any or all of the deceased persons have alleviated this situation. This so-called realignment was extremely complicated and difficult to understand. In fact, it appears from the testimony of Brian Lambert, the certified public accountant, that plaintiff knew nothing about the actual operation of the plan, the reasons for the checks she signed and the fact that she received no consideration for a one-half interest in the Nugent enterprises. These facts were not brought to light until plaintiff had a copy of the 1951 trust and the certified accountant completed his examination of the entire matter sometime during 1979. And, in fact, plaintiff filed her suit against the defendants in October of that same year. The crucial point here is the question of a gross inadequacy of consideration moving to plaintiff.

In addition, plaintiff never had any competent and independent advice regarding this transaction. In this regard, the testimony of John and Myrtle Nugent would have had no effect. The point is made clear by Edmund Spencer that he did not ever suggest to plaintiff that she have independent counsel and plaintiff never did.

In this situation, the burden of proof of laches rests upon defendants. The trial court found in favor of plaintiff in this regard. We cannot say that his finding is contrary to the manifest weight of the evidence and it is accordingly affirmed.

For these reasons the judgment appealed from is affirmed.

Judgment affirmed.

McGLOON and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DOWNING

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES NEWSOME, Defendant-Appellant.
    First District (2nd Division)
    No. 81—338
    Opinion filed December 7, 1982.

      Katz, Hirsch, Wise & Colky, Ltd., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Michael J. Kelly, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

Defendant, James Newsome, was charged by information with three counts of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1), one count of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2), and two counts of armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A— 2). A jury found him guilty of murder, armed robbery and armed violence. He was sentenced by the trial court to life imprisonment on one count of murder and to a concurrent term of 30 years on one count of armed robbery.

On appeal, defendant raises the following issues: (1) whether he was denied a fair trial because the jury which convicted him was unrepresentative, prejudicial and prone to convict; (2) whether his fifth amendment rights were violated because the trial court admitted testimony impeaching him when he chose not to take the stand; (3) whether the prosecutor’s closing argument was improper; (4) whether the trial court erred in the sentencing hearing; and (5) whether the sentence he received was unduly severe.

Defendant’s charges stem from the murder and armed robbery of a 72-year-old grocery owner, Mickey Cohen. At defendant’s trial, Josie Nash, a store employee, testified that defendant entered the store at approximately 1:45 p.m. on October 30, 1979. He selected and brought a few items to the counter which Cohen bagged. Anthony Rounds, a frequent customer, entered the store, engaged in conversation with Cohen and selected two items for purchase. Rounds testified that he saw a gun butt in defendant’s shirt. Cohen picked up a gun that was under the counter, put it into his pocket and told Rounds to go outside and wait.

Nash testified that defendant then brought another item to the checkout counter which she rang up. Defendant pulled his gun and said, “Don’t do it, old man.” Cohen was also pulling his gun and at this point Nash ran to the cooler to hide. Cohen was shot twice in the head and neck. After hearing the shots, Rounds ran back into the store, bumping into defendant as he was exiting. The victim’s pockets had been emptied and his gun was missing.

Both Nash and Rounds identified defendant in a subsequent lineup, as did another witness who saw defendant on the street at approximately the time of the murder. Although positive fingerprints were found on the various items in the store that defendant allegedly handled, tests revealed that they did not belong to the victim, defendant, or the witnesses. At trial, defendant produced three alibi witnesses who claimed that defendant was with them watching “TV” soap operas at the time in question.

The jury found defendant guilty of murder, armed robbery and armed violence. The State sought the death penalty and defendant waived his right to a jury hearing for the sentencing segment of his trial. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(d)(3).) Although the sentencing hearing commenced shortly after the end of trial, the trial judge did not hear the post-trial motions until four months later. At that time, the trial judge denied the motions and sentenced defendant to life imprisonment on one murder count and to a concurrent term of 30 years on one armed robbery count. The judgment on the armed violence count was dismissed.

I

Defendant claims he was denied a fair trial regarding the guilt determination segment of his trial because:

A. the jury was unrepresentative of the community since all veniremen who were opposed to the death penalty were automatically excluded;

B. the jury was inherently biased and prone to convict as a result of the automatic exclusion;

C. the State used its peremptory challenges to exclude all available jurors who were members of his race; and

D. the jury prejudged his guilt.

A

During voir dire, each potential juror was asked whether he or she had any strong feelings by reason of religion or conscience against the death penalty. The juror was then asked if he could consider all possible penalties under the law and if he would automatically vote against the death penalty no matter what the facts of the case were. Defendant claims that individuals who are opposed to the death penalty constitute a “distinct group” which has “qualities of human nature and experience” unique unto themselves. Because this group was systematically excluded from the pool of potential jurors, defendant argues that the “fair-cross-section requirement” of the sixth amendment as discussed in Duren v. Missouri (1979), 439 U.S. 357, 58 L. Ed. 2d 579, 99 S. Ct. 664, was violated.

According to defendant, the Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, case and its progeny left open the question of whether a “death-qualified” jury violates the requirement of a representative jury. In Witherspoon, the Supreme Court held that the death sentence could not be carried out if veniremen were excluded simply because of a general objection to the death penalty, but that it was proper to exclude a juror for his automatic opposition to the death penalty or his inability to fairly determine guilt. (391 U.S. 510, 522-23 n.21, 20 L. Ed. 2d 776, 785 n.21, 88 S. Ct. 1770, 1777 n.21.) Defendant contends that four jurors were disqualified even though they stated that they could adequately adjudge guilt. The record reveals, however, that in each case the juror did indicate that he or she would, or might, vote against the death penalty automatically. We believe the jury selection satisfied the Witherspoon requirements and, of course, the Witherspoon holding is limited to those circumstances in which the death penalty is actually imposed by the jury. Bumper v. North Carolina (1968), 391 U.S. 543, 545, 20 L. Ed. 2d 797, 800, 88 S. Ct. 1788, 1790.

The sixth amendment’s right to trial by a panel of “impartial” jurors has been interpreted as meaning that the State, as well as the defendant, is entitled to an impartial jury. The jury must be free from bias not only against the accused, but also for the accused. (Spinkellink v. Wainwright (5th Cir. 1978), 578 F.2d 582, 596; People v. Hamilton (1981), 100 Ill. App. 3d 942, 947-48, 427 N.E.2d 388, appeal denied (1982), 91 Ill. 2d 554.) Defendant’s contention that the fair-cross-section requirement of the sixth and fourteenth amendments was violated is without merit.

B

Defendant also argues that the automatic exclusion of jurors under the Witherspoon standard produced a jury that was inherently biased and prone to convict. Defendant presents copies of various studies which support his theory that persons not opposed to the death penalty are more prone to convict. In Witherspoon, the court said that the data produced in that case was “too tentative and fragmentary” and that it would not conclude that the exclusion of jurors opposed to capital punishment substantially increases the risk of conviction. (Witherspoon v. Illinois (1968), 391 U.S. 510, 517-18, 20 L. Ed. 2d 776, 782, 88 S. Ct. 1770, 1774.) Defendant argues that the data is now complete and is sufficient to support his contention.

Recent Illinois cases have rejected similar studies to those offered by defendant because they involve very limited numbers and small variations (People v. Lewis (1982), 88 Ill. 2d 129, 147, 430 N.E.2d 1346, U.S. appeal pending), or because at most all that they show is a pattern of correlation between jurors’ attitudes toward the death penalty and toward conviction in a particular set of facts. (People v. Hamilton (1981), 100 Ill. App. 3d 942, 948; see also Spinkellink v. Wainwright (5th Cir. 1978), 578 F.2d 582, 593-96; Hooks v. State (Del. 1980), 416 A.2d 189, 195.) We likewise find the studies inconclusive. Defendant was not denied a fair trial because of the exclusion of jurors under the Witherspoon standard.

Defendant further argues that because Illinois has a bifurcated system of determining guilt and sentencing (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(d)), there is no need to death-qualify the jury before the guilt-determining stage. Defendant suggests that an additional voir dire be held after a defendant has been adjudged guilty and has requested a jury determination of his sentence. This same argument was rejected in People v. Gaines (1981), 88 Ill. 2d 342, 358, 430 N.E.2d 1046, where the court stated that it was questionable whether there was power to adopt this type of procedure under the statute and that its adoption would pose constitutional problems. For the above reasons, defendant’s contention that his conviction must be overturned because the jury was inherently biased and prone to convict fails.

C

Defendant, a black man on trial for the murder of a white man, strenuously argues that his right to a fair trial before a representative jury was violated because the State used its peremptory challenges to exclude all available black jurors. Defendant was tried by an all-white jury.

THE RECORD

In order to thoroughly consider this issue, we first analyze the record before us. The record includes a complete transcript of the voir dire. The trial judge conducted all of the questioning of the potential jurors in accordance with Supreme Court Rule 234 (73 Ill. 2d R. 234). Initially, defendant attacked the venire brought into the courtroom, noting there were only four blacks out of 40. After the trial court overruled that objection, the questioning of jurors proceeded. Thereafter, defendant made a motion for mistrial claiming the State had exercised two peremptory challenges to exclude blacks. After argument, the motion was denied. During the selection of the third panel of jurors, defendant moved for a mistrial on the basis of “the systematic exclusion of all blacks” and also challenged the venire, stating that the first two juror panels (eight persons) did not contain any blacks. After argument, the trial court denied the motions. When 12 jurors and one alternate had been selected and sworn, defendant again moved for a mistrial and identified one person excused by the State as being black. At this point defendant also pointed out that there was an all-white jury, with a black defendant, and that the State had systematically excluded blacks.

On appeal, defendant claims that the State used nine of its 13 peremptory challenges it exercised during the selection of regular jurors, and both of its challenges during selection of alternate jurors to exclude blacks. However, except for three individuals, defendant failed to identify or specify on the record the name and racial characteristics of those now claimed to be within the challenged group. It is no excuse to say that because the trial court was conducting the voir dire, the defendant was unable to note each challenged juror’s race. Trial procedures in this State permit setting forth in the record important facts, in support of motions, in order to preserve for the record the basis for the motions. See People v. Turner (1982), 110 Ill. App. 3d 519, for a discussion of this problem.

In an effort to overcome the record deficiency, defendant culled from the record the appropriate voir dire examination of those now claimed to be in the challenged class. It is suggested that by summarizing certain statistics and noting that the State made no objection to the accuracy of the statistics, defendant is justified in using this technique, in lieu of making an adequate record. Whether or not the State now has a duty to aid the defendant to reconstruct the record will be discussed later in this opinion.

As we are able to reconstruct the record, 101 prospective jurors were called into the courtroom. Of 101 jurors, defendant claims 16 were black, and that the State used nine peremptory challenges to exclude every black not excused for cause. Based on the portion of the voir dire included in the appendix, of the blacks so excused during regular and alternate selection, one had three close relatives who were victims of serious crimes, a second was a cashier at a food and liquor store (the crime in the case involved the murder of a store owner), a third had been a victim of a crime and had testified in court concerning the matter, and a fourth was the victim of a crime for which no one was ever charged. As will be discussed later, we do not believe the record is adequate to support the burden of the defendant on this issue. (See People v. Edwards (1978), 74 Ill. 2d 1, 7, 383 N.E.2d 944, cert. denied (1979), 442 U.S. 931, 61 L. Ed. 2d 299, 99 S. Ct. 2862.) Nevertheless, we deem it appropriate to discuss the merits of defendant’s contention.

Swain, King, Butler, Wheeler, Payne et al.

We think this case is, and should be, controlled by Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, and the following Illinois Supreme Court cases: People v. King (1973), 54 Ill. 2d 291, 298, 296 N.E.2d 731; People v. Butler (1970), 46 Ill. 2d 162, 164-65, 263 N.E.2d 89; People v. Dukes (1960), 19 Ill. 2d 532, 540, 169 N.E.2d 84; and People v. Harris (1959), 17 Ill. 2d 446, 450-51, 161 N.E.2d 809, cert. denied (1960), 362 U.S. 928, 4 L. Ed. 2d 747, 80 S. Ct. 755.

Swain involved an Alabama black convicted of rape and sentenced to death. He challenged the proceedings on the basis that both the trial jury venire and the petit jury violated his fourteenth amendment rights, in that the State of Alabama discriminated in the selection of jurors. In the petit jury, of eight blacks on the venire, two were exempt and six were peremptorily struck by the prosecutor. With respect to the claim that the State exercised the peremptory challenges to exclude blacks from serving on petit juries, the Supreme Court found no constitutional transgression.

Justice White, writing for the majority in Swain (Justice Goldberg wrote a dissent in which Chief Justice Warren and Justice Douglas joined) extensively reviewed the record, the history of the peremptory challenge in this country as well as in England, and amongst other things said:

“The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control. [Citations.] ***
With these considerations in mind, we cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor’s challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor’s judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned.
*** The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it. ***” (Emphasis added.) 380 U.S. 202, 220-22, 13 L. Ed. 2d 759, 772-74, 85 S. Ct. 824, 836-37.

In a decision which predated Swain, People v. Harris (1959), 17 Ill. 2d 446, 161 N.E.2d 809, our supreme court said: “The right of peremptory challenge is a substantial one which should not be abridged or denied. It may, by its very nature, be exercised or not exercised, according to the judgment, will or caprice of the party entitled thereto, and he is not required to assign any reason therefor.” (17 Ill. 2d 446, 451.) This principle was followed in People v. Dukes (1960), 19 Ill. 2d 532, 540, 169 N.E.2d 84. In People v. Butler (1970), 46 Ill. 2d 162, 164-65, 263 N.E.2d 89, our supreme court, faced with the same question as in the instant case, rejected the claim on the basis of Swain. It was likewise rejected in People v. King (1973), 54 Ill. 2d 291, 298, 296 N.E.2d 731.

In People v. Thornhill (1975), 31 Ill. App. 3d 779, 333 N.E.2d 8, a case involving an identical issue, we rejected defendant’s claim and noted that: “A peremptory challenge is a right to challenge a certain number of jurors without showing any cause or reason, or inquiry into motives. As any trial attorney knows, a peremptory challenge is often exercised on a mere ‘hunch,’ and sometimes on the so-called sophisticated consideration of race, religion, nationality, employment, residence, and many other real or imaginary reasons.” 31 Ill. App. 3d 779, 783.

Based on the state of the law in Illinois, as enumerated by our supreme court, we have no authority to adopt a contrary position. (Beagley v. Andel (1978), 58 Ill. App. 3d 588, 591, 374 N.E.2d 929, cert. denied (1979), 440 U.S. 917, 59 L. Ed. 2d 467, 99 S. Ct. 1235.) Even if we were disposed to do so, we do not think the defendant in this case sustained his burden of proof as set forth in Swain. “In short, petitioner has not laid the proper predicate for attacking the peremptory strikes as they were used in this case. Petitioner has the burden of proof and he has failed to carry it.” (380 U.S. 202, 226, 13 L. Ed. 2d 759, 776, 85 S. Ct. 824, 839.) Swain also noted that, “purposeful discrimination may not be assumed or merely asserted. [Citations.] It must be proven.” (380 U.S. 202, 205, 13 L. Ed. 2d 759, 764, 85 S. Ct. 824, 827.) We think the record presented to this court does not contain the type of proof required by the supreme court in the Swain decision.

Defendant strongly relies on People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890, where the California court, relying on its State constitution, held that use of peremptory challenges to remove potential jurors solely on the basis of race violated the defendant’s right to a jury drawn from a representative cross-section of the community. The Wheeler court proposed a three-prong test which, if satisfied, would allow a defendant to rebut the presumption that the State was exercising its peremptory challenges on constitutionally permissible grounds: (1) there must be as complete a record of the circumstances of the jury selection as possible; (2) it must be established that the excluded persons are members of a cognizable group within the meaning of the representative cross-section rule; and (3) there must be a strong likelihood that such persons are being challenged because of their group association rather than a specific bias. (People v. Wheeler (1978), 22 Cal. 3d 258, 280, 583 P.2d 748, 764, 148 Cal. Rptr. 890, 905.) If these conditions were satisfied, then the burden, the court held, would shift to the State to demonstrate that the challenges were not based on group bias alone.

Many defendants in Illinois have attempted to convince our courts that the Wheeler standard should be adopted in this State. In several cases, the defendants were unsuccessful because they had not preserved a sufficient record of the circumstances, and thus the first prong of Wheeler was not satisfied. (E.g., People v. Turner (1982), 110 Ill. App. 3d 519; People v. Dixon (1982), 105 Ill. App. 3d 340, 434 N.E.2d 369; People v. Belton (1982), 105 Ill. App. 3d 10, 433 N.E.2d 1119.) Other defendants failed at establishing a prima facie case of purposeful discrimination. (E.g., People v. Vaughn (1981), 100 Ill. App. 3d 1082, 427 N.E.2d 840; People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029.) Other cases have contained an explicit refusal to follow the Wheeler decision, saying that the proposed test is vague and uncertain and it severely limits the scope of peremptory challenges. (E.g., People v. Lavinder (1981), 102 Ill. App. 3d 662, 430 N.E.2d 243; People v. Fleming (1980), 91 Ill. App. 3d 99, 413 N.E.2d 1330, appeal denied (1981), 83 Ill. 2d 571.) Another case, one which defendant cites as supportive of his position, contains an apparent agreement with the Wheeler reasoning and an indication that in a proper case, the court would not hesitate to reverse and remand a conviction if purposeful exclusion was shown. People v. Smith (1980), 91 Ill. App. 3d 523, 414 N.E.2d 1117.

The first Illinois case to adopt the Wheeler decision, and upon which defendant heavily relies, is People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046. There, the third division of this court held that when it reasonably appears to the trial court that the State is using peremptory challenges to solely exclude black jurors because of their race, the State has the burden of demonstrating that the exclusions were for reasons other than race.

The Payne decision reasoned from an excerpt of the Supreme Court in the Swain case that if “it would appear that the purposes of the peremptory challenge are being perverted *** the presumption protecting the prosecutor may well be overcome.” (Swain v. Alabama (1965), 380 U.S. 202, 224, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 838.) The section of the Swain opinion from which this quoted language is taken, however, does not deal with defendant’s contention that blacks had been excluded in his particular case, but rather that no black had ever served as a petit juror in either a criminal or civil case in that county before. Only after the Supreme Court considered the possibility that a prosecutor might have, in case after case and whatever the circumstances, excluded all blacks from the jury, did the court make the statements relied on in Payne. This type of factual situation is not included in the records of either Payne or the case at hand. Also, Payne did not note Swain’s discussion regarding defendant’s burden of proof.

Payne is not based on the fourteenth amendment equal protection claim found in the Swain case, but instead is grounded on the sixth amendment’s fair-cross-section requirement as enunciated in Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692. Payne recognized that the Taylor decision involved the exclusion of all women during the venire selection of the jury array, but expanded Taylor to petit jury selection by reasoning:

“It follows that the systematic exclusion of prospective jurors solely because of their race is equally invidious and unconstitutional at any stage of the jury selection. *** If we were to hold otherwise, the constitutional right to a jury drawn from a fair cross section of the community could be rendered a nullity through the use of peremptory challenges.” (106 Ill. App. 3d 1034, 1036-37.)

The Payne court opined that the sixth amendment’s imperative of an impartial jury must control the procedure of peremptory challenges, which is of statutory origin only. See People v. Payne (1982), 106 Ill. App. 3d 1034, 1039-40 n.4, and Comment, Constitutional Law—Impartial Jury—Restricting the Peremptory Challenge — People v. Wheeler, 13 Suffolk U.L. Rev. 1082, 1089-90 n.44 (1979), for a history of the peremptory challenge as adopted from England.

In a recent case issued by our court, People v. Teague (1982), 108 Ill. App. 3d 891, the first division declined to adopt the view expressed in Payne. The Teague court expressed concern with the effect the Wheeler test would have on the scope of peremptory challenges and stated that if Payne were to be followed, “then the peremptory challenge [would be] so effectively emasculated as to destroy its function which Swain and Illinois [have] recognized.” (108 Ill. App. 3d 891, 897.) Teague also suggested that the problem be solved by the legislature. We agree with Teague.

The third division of our court subsequently reaffirmed its Payne decision in People v. Gosberry (1982), 109 Ill. App. 3d 674. The Gos-berry court responded to the concern expressed in Teague by stating that “all that Payne ‘effectively emasculates’ is veiled State participation in racism, sexism, and religious and ethnic prejudices.” (109 Ill. App. 3d 674, 679.) The Gosberry court also denied that it was advocating the abolition of peremptory challenges and stated that it was recognizing, as the Swain court did, that the trial court may control peremptory challenges when it appears that the State is exercising them in violation of defendant’s constitutional rights.

We have recently noted in regards to the Wheeler theory that “[t]his court does not condone the use of peremptory challenges to exclude prospective jurors on the basis of race.” (People v. Allen (1981), 96 Ill. App. 3d 871, 878, 422 N.E.2d 100, appeal denied (1981), 85 Ill. 2d 567.) In the Allen case, we also rejected the defendant’s contention that there was a violation of either the sixth amendment or article I, section 8, of the 1970 Illinois Constitution. Our system of peremptory challenges as it currently stands would be significantly altered if the Wheeler test (as advocated in Payne) were to be adopted. (People v. Allen (1981) 96 Ill. App. 3d 871, 878.) “If peremptory strikes can only be exercised in a certain way, dependent on circumstances, and subject to judicial scrutiny, they will no longer be peremptory.” (State v. Grady (1979), 93 Wisc. 2d 1, 13, 286 N.W.2d 607, 612; People v. Fleming (1980), 91 Ill. App. 3d 99, 105, 413 N.E.2d 1330, appeal denied (1981), 83 Ill. 2d 571.) As recognized in Swain, counsel’s decision to use a peremptory challenge may result from an assumption based on the limited knowledge counsel has of a potential juror’s background and associations. We agree with the reasoning stated in the fourth division of this court:

“We feel the wiser policy is to decline to interfere with counsel’s right to strike a specified number of prospective jurors based on any factors he considers important, rather than to specify certain circumstances in which peremptory challenges may not be exercised, or certain factors on which they may not be based.” (People v. Lavinder (1981), 102 Ill. App. 3d 662, 669, 430 N.E.2d 243.)

We therefore decline to hold that the State’s exercise of its peremptory challenges in this instance violated defendant’s constitutional rights.

D

Defendant also urges that he was denied a fair trial because the jury that convicted him prejudged his guilt. He bases his contention on the ex parte deposition of á jury member which was taken, without an order of the trial court, four months after trial and which alleged that: during the trial the jurors decided the case and determined defendant’s guilt; one juror desired to expedite deliberations; and the jury did not understand the instructions. Defendant claims that he is not impeaching the mental process of the jury, but that he is evidencing the existence of jury conduct in violation of the judge’s instructions and also external influences on the jury’s decision. We have examined the deposition and conclude that it does not reveal any grounds which would justify reversal of defendant’s conviction. See People v. Preston (1979), 76 Ill. 2d 274, 287-88, 391 N.E.2d 359; People v. Holmes (1978), 69 Ill. 2d 507, 372 N.E.2d 656.

II

Defendant, who chose not to testify at trial, next contends that the trial court erred in admitting evidence regarding statements made by him after his arrest. During the State’s rebuttal, a police officer was allowed to testify about a statement defendant made on the day of his arrest which contradicted the testimony of his alibi witnesses. We conclude that this testimony was properly admitted in order to test the credibility of defendant’s alibi witnesses. People v. Harvey (1980), 92 Ill. App. 3d 465, 470, 415 N.E.2d 1161.

III

Defendant claims that he was denied a fair trial because during the rebuttal argument the prosecutor misstated the facts and argued other facts not in evidence. The comments referred to testimony concerning fingerprints in the store, or lack of them. We have carefully examined the instances of alleged prosecutorial abuse and find that they do not constitute reversible error. The jury was instructed to disregard counsel’s statements if not in the evidence and we cannot conclude that, based upon the record, the remarks, even if improper, resulted in substantial prejudice to defendant. People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200.

IV

Defendant raises two instances of alleged error regarding his sentencing hearing. Defendant claims that (A) improper hearsay was admitted at the hearing, and (B) the trial court erred in holding the sentencing hearing before defense counsel had a chance to prepare and present post-trial motions.

A

After the jury found the defendant guilty of murder, armed robbery and armed violence, the State elected to seek the death penalty. This bifurcated proceeding followed the procedures set forth in sections 9 — 1(b), (c), (d), (e), (f) and (g) of the Criminal Code of 1961 as amended. Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(b) et seq.

At the aggravation and mitigation phase of this hearing, the State called as a witness a deputy prosecutor from Hawaii. He testified that in 1979, he prosecuted the defendant for a controlled substance Class C felony (Hawaii) for which defendant was convicted and sentenced; that in reviewing the records of his office, he was aware of a charge against defendant of assault of a 60-year-old retired school teacher upon which defendant was convicted.

Defendant contends that while a sentencing hearing is not bound by the strict rules of evidence, the testimony regarding the assault conviction should not have been admitted because it was “rank hearsay.” The pertinent statute under which defendant was sentenced authorizes evidence relevant to aggravating or mitigating factors “regardless of its admissibility under the rules governing the admission of evidence at criminal trial.” (Ill. Rev. Stat. 1981, ch. 38, par. 9— 1(e).) (Cf. People v. LaPointe (1982), 88 Ill. 2d 482, 494-99, 431 N.E.2d 344.) The trial court properly used its discretion in allowing the testimony regarding the assault conviction.

B

The jury returned the guilty verdict at approximately 9 p.m. on a Friday night, and the trial court held the hearing on sentencing the following Monday morning. Defendant claims that he was prejudiced in that he was forced to make an instantaneous decision as to whether he wanted his sentence determined by a judge or jury. He further alleges that he was denied his right to a fair hearing on the post-trial motions after the judge had already heard prejudicial material presented against him during the sentencing hearing.

A review of the record reveals that at the start of the trial, defendant was aware that the State might seek the death penalty. We are satisfied from the record defendant was aware of section 9 — 1, the murder section of the Criminal Code of 1961. The only objection defense counsel made was at the time the hearing was scheduled and was that he would not have time to prepare written post-trial motions. The trial court then granted him leave to make oral motions. The State had made arrangements for its out-of-State witness to be present immediately after trial should defendant request a jury for the sentencing segment. The trial court repeatedly advised defense counsel that he would be given as much time as he needed to prepare and present defense witnesses. Defense counsel never requested more time and did present 10 witnesses on defendant’s behalf.

The trial court did not enter judgment on the sentence until after the hearing on the post-trial motions, which was delayed several times until four months after the conclusion of the trial. A case upon which defendant relies, People v. Carnes (1975), 30 Ill. App. 3d 1030, 332 N.E.2d 674, is therefore not applicable because in that instance the court entered the sentence before ruling on the post-trial motions. Here, defendant had the opportunity to present his post-trial motions before sentence was imposed.

V

Defendant lastly argues that the sentence he received was overly severe and inappropriate. A defendant may be sentenced to life imprisonment for the offense of murder if “the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9 — 1 of the Criminal Code *** are present.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1.) One aggravating factor found in section 9 — 1 is the murder of an individual in the course of committing the felony of armed robbery. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(b)(6).) Defendant claims he was entitled to a separate hearing on whether or not this aggravating factor existed. The record reveals that the State offered into evidence at the sentencing hearing the jury verdicts finding defendant guilty of armed robbery, armed violence and murder, and a copy of defendant’s birth certificate attesting to the fact that he was over the age of 18 years. These documents satisfied the statutory requirements of an aggravating factor under section 9 — 1(b)(6).

The determination of a sentence is a matter within the trial court’s discretion. It should not be altered upon review absent a showing of clear abuse of that discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.) The trial court stated that it considered all of the facts in the case, in the social investigation report and its supplement, and in the sentencing hearing. Contrary to defendant’s contention, we find that the trial court satisfied the statutory request that it “specify on the record the particular evidence, information, factors in mitigation and aggravation or other reasons that led to [its] sentencing determination.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 4—1(c).) We find no reason to overturn the trial court’s determination of defendant’s sentence.

For the above-stated reasons, we affirm the judgment of the circuit court.

Affirmed.

STAMOS, P.J., and HARTMAN, J., concur.

      It is appropriate to note that any one of the specified conditions might, of itself, cause a trial attorney to use a peremptory challenge.

      Many Illinois appellate court cases have heretofore followed this authority. The list of the cases are set forth in numerous cases which predate this case. It is unnecessary to repeat them here.

      The Payne opinion (pending on appeal in our supreme court, No. 56907) sets forth no specific standard or guidelines to be followed as an aid to the trial courts or the bar. The standard could be characterized as, “I don’t know how to describe it, but I know it when I see it.”

      Stoam predated the 1968 decision of the Supreme Court (Duncan v. Louisiana (1968), 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444), which held that the sixth amendment is binding on the States through the fourteenth amendment. Duncan involved the right to a jury trial in a misdemeanor case. It should be noted that the Wheeler court did not think the sixth amendment approach would change the Swain result in the Supreme Court (People v. Wheeler (1978), 22 Cal. 3d 258, 284, 583 P.2d 748, 767, 148 Cal. Rptr. 890, 908). We do not believe the use of the sixth amendment gives Payne any more vitality than the fourteenth amendment gave to Swain.


author: JUSTICE McGILLICUDDY

text:
    VIVIAN VINES, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.—(John Goetz, Defendant.)
    First District (3rd Division)
    No. 81—782
    Opinion filed December 8, 1982.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Jerome A. Siegan, Assistant Corporation Counsel, of counsel), for appellant.
    Jesmer and Harris, of Chicago (Al Wiederer and Charles E. Tannen, of counsel), for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

This personal injury action filed by the plaintiff, Vivian Vines, sought recovery against the defendants, the city of Chicago (the City) and John Goetz, a Chicago police officer, for injuries she suffered on January 31, 1975, after being shot by Goetz. The jury returned a verdict in favor of the plaintiff against the City and awarded the plaintiff $13,800 and in favor of Goetz against the plaintiff. Special interrogatories completed by the jury stated that the City and Goetz were not guilty of wilful and wanton conduct; that the plaintiff was free from contributory negligence; and that the City failed to exercise ordinary care. The City filed a post-trial motion seeking a judgment notwithstanding the verdict or a new trial. A new trial was ordered on July 18, 1980, but that order was vacated and judgment on the jury verdict was reinstated on February 26, 1981. The City appeals.

The parties do not dispute the fact that the plaintiff was injured by Officer Goetz while he was responding to a report of an armed robbery and kidnaping in progress. There also is no dispute as to the damage award of $13,800. The sole issue raised in this appeal is whether in accordance -with the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1973, ch. 85, pars. 1 — 101 to 10 — 101) a municipality can be liable for injuries caused by its employee absent a finding that the employee is liable.

Section 2 — 202 of the Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, par. 2 — 202) provides that a public employee is not liable for his actions in the execution or enforcement of any law unless the employee’s conduct is wilful and wanton. Section 2 — 109 (Ill. Rev. Stat. 1973, ch. 85, par. 2 — 109) provides that a public entity is not liable for any injury resulting from an employee’s action where the employee is not liable. As it is undisputed that Officer Goetz was executing or enforcing a law at the time the plaintiff was injured, and since the jury found that Goetz was not guilty of wilful and wanton conduct, both the officer and the City were immune from liability for the plaintiff’s injuries caused by Goetz. See, e.g., Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 282 N.E.2d 144; Glover v. City of Chicago (1982), 106 Ill. App. 3d 1066, 436 N.E.2d 623; LaMonte v. City of Belleville (1976), 41 Ill. App. 3d 697, 355 N.E.2d 70.

The plaintiff contends, however, that the City is liable to her for negligent actions not attributable to Officer Goetz. In her amended complaint, the plaintiff alleged:

“2. That at said time and place defendant JOHN [GOETZ], an employee, agent and servant of the defendant CITY OF CHICAGO, A Municipal Corporation, and the defendant CITY OF CHICAGO, A Municipal Corporation, by its agents, servants and employees were guilty of one or more of the following wilful, wanton and/or negligent acts or omissions:
a. Unlawfully touched the plaintiff by firing a bullet into the body of the plaintiff;
b. pointed a loaded gun at the plaintiff which was discharged so that the bullet entered the body of the plaintiff:
c. used a hollow nose bullet which they knew or should have known created a greater danger of injury upon impact with a human body;
d. failed to obtain information as to the identity of the driver of the cab which information was readily available and discoverable by the exercise of ordinary care;
e. failed to communicate to the police officer at the scene the identity of the driver of the cab;
f. permitted the use of hollow nose bullets by its police officer when the City knew or should have known of the greater hazard to and greater injury upon impact with a human body.”

The plaintiff argues that allegations d, e and f relate to the ordinary negligence of agents, servants and employees of the City occurring other than in the execution or enforcement of any law. The fact remains, however, that the plaintiff seeks to impose liability upon the City for acts committed by its employees; and, as stated above, the City is not liable for any injury resulting from the acts or omissions of any of its employees unless the employees themselves are liable. We believe that the acts complained of, i.e., the obtaining and transmitting of information relative to the commission of a crime and permitting the use of hollow nose bullets during the apprehension of a criminal occurred during the execution or enforcement of a law. Therefore, the City is immune from ordinary negligence liability in accordance with the Tort Immunity Act and the trial court erred in not entering judgment notwithstanding the verdict and in reinstating the judgment in favor of the plaintiff.

The plaintiff also contends that the City waived its statutory immunity defense by failing to plead this defense after the plaintiff amended her complaint to conform her pleadings to the proof. However, the defendants did plead the affirmative defense of statutory immunity in response to the plaintiff’s original complaint; and we do not believe that they were required to renew this defense after the plaintiff amended her complaint. We also reject the plaintiff’s argument that the City waived the immunity defense because it tendered instructions and did not object to the plaintiff’s instructions relative to ordinary negligence, reasonable care and contributory negligence. Despite the City’s acquiescence to the jury instructions on ordinary negligence, reasonable care and contributory negligence, however, it is clear from the record that the City continued to maintain that it was not liable for the plaintiff’s injuries absent a finding of wilful and wanton conduct by its employees. Therefore, there was no waiver by the City of its statutory immunity defense.

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

Reversed.

WHITE, P.J., and RIZZI, J., concur.

      The plaintiff, a cab driver, was taken hostage by a passenger who, after failing to obtain money from her refused to release her until her cab company paid him a ransom. The police who responded to the call for assistance were not given a description of the victim. The plaintiff argued at trial that Goetz mistook her for the offender due to a lack of information supplied by the police radio dispatch.


author: PRESIDING JUSTICE JOHNSON

text:
    GROSSMAN CLOTHING CO., INC., Plaintiff-Appellant, v. MYLES GORDON et al., Defendants-Appellees.
    First District (4th Division)
    No. 81—2480
    Opinion filed November 24, 1982.
    Rehearing denied January 13, 1983.
    Chatz, Berman, Maragos, Haber & Fagel, of Chicago (Joel A. Haber, Bruce Gerber, and John Cardosi, of counsel), for appellant.
    Hollander and Hollander, of Chicago (Howard D. Hollander, Richard J. Hollander, and Gary P. Hollander, of counsel), for appellees.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Grossman Clothing Co., Inc., appeals an order of the trial court granting judgment to defendants, Myles and Susan Gordon, partners doing business as Bradford Clothes. On appeal, plaintiff contends that (1) the trial court abused its discretion in refusing to allow plaintiff to file a reply to defendants’ answer, and (2) defendants’ answer did not establish a defense to plaintiff’s cause of action as a matter of law.

We reverse and remand for a new trial.

On June 27, 1979, plaintiff, a New York corporation engaged in the business of merchandising clothes, filed a complaint alleging that it had sold and delivered to defendants certain merchandise costing $10,282.07. Defendants did not pay for the goods. In their answer, filed October 26, 1979, defendants alleged that the merchandise was delivered in a damaged condition and was unmerchantable and unfit for the purposes intended. Defendants further alleged that they had notified plaintiff of the unfitness and unmerchantability and that they had tendered a return of the goods but the tender was refused.

On September 16, 1981, the trial began. Irvin Grossman, secretary of Grossman Clothing Co., testified. Copies of invoices for the goods shipped to defendants were admitted into evidence. Grossman stated that no portion of the amount owing had been paid. Plaintiff rested and defendants moved for a judgment on the pleadings and rested their case. The trial court found that defendants’ answer set forth an affirmative defense to which plaintiff had not replied. Plaintiff requested leave to file a reply instanter which was denied. The trial court gave judgment for defendants. Plaintiff appeals.

Plaintiff contends the trial court abused its discretion in refusing to allow plaintiff to file a reply to defendants’ answer. We agree. Section 32 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 32) provides that “[i]f new matter by way of defense is pleaded in the answer, a reply shall be filed by the plaintiff ***.” Section 59 of the Act (Ill. Rev. Stat. 1979, ch. 110, par. 59) provides that “[o]n good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.” The Civil Practice Act itself is to be “liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.” Ill. Rev. Stat. 1979, ch. 110, par. 4.

We believe the circumstances of this case satisfy the “good cause” required by section 59. The complaint was filed on June 27, 1979, and the parties engaged in discovery prior to the start of trial. Defendants’ motion for judgment on the pleadings came at trial, at the close of plaintiff’s case and without prior notice. Normally, a motion for judgment on the pleadings is presented prior to discovery because it tests the sufficiency of the pleadings themselves. (Krych v. Birnbaum (1978), 66 Ill. App. 3d 469, 471, 384 N.E.2d 52, 54.) When the trial court ruled that defendants’ answer was an affirmative defense, plaintiff asked leave to file a reply instanter which the court denied.

A case on point is Krych v. Birnbaum (1978), 66 Ill. App. 3d 469, 384 N.E.2d 52, in which the appellate court held that the trial court erred in not allowing plaintiff to file a reply. In Krych, plaintiff had filed suit in January 1975. Defendant’s answers including allegations labeled affirmative defenses were filed in June 1975. Plaintiff never replied. Discovery was taken between June 1975 and October 1976. When defendant moved for judgment on the pleadings on the day set for trial without prior notice, plaintiff asked leave to reply instanter, but the trial court denied leave. The appellate court reversed, holding that the ends of justice required that leave be granted. Krych v. Birnbaum (1978), 66 Ill. App. 3d 469, 471.

Similarly, in the instant case, we believe the ends of justice require that plaintiff be granted leave to file a reply to defendants’ affirmative defense.

In view of this holding, we need not reach the second issue raised by plaintiff that defendants’ answer did not establish a defense as a matter of law.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

JIGANTI and ROMITI, JJ., concur.