author: PRESIDING JUSTICE SEIDENFELD

text:
    THE VILLAGE OF ROUND LAKE BEACH et al., Plaintiffs-Appellants, v. RODNEY BRENNER et al., Defendants-Appellees.
    Second District
    No. 82-17
    Opinion filed June 8, 1982.
    Berle L. Schwartz and Andi S. Goldfine, both of Highland Park, for appellants.
    Michael J. Cummins, of Waukegan, and William J. Stogsdill, of Kowalczyk and Stogsdill, of Glen Ellyn, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The Village of Round Lake Beach, by four of its trustees, sought a declaratory judgment that Rodney Brenner, the mayor of the village, lacked the authority to appoint Peter L. Dakuras as temporary successor to the office of chief of police without the advice and consent of the board of trustees of the village. The village also sought a temporary restraining order and a preliminary injunction. The mayor counterclaimed requesting a declaratory judgment that he had the power of temporary appointmént and that the board had no authority to amend an ordinance so as to deprive him of that power. The temporary restraining order against the mayor was subsequently dissolved. Preliminary injunctive relief was denied. The court further restrained the board of trustees from amending the ordinance governing appointment of any village officer. The village appeals.

We first consider the motion of the defendants to dismiss the appeal, which we have taken with the case. The mayor and Dakuras contend principally that the appeal is premature because the motion to dismiss the complaint for declaratory judgment for failure to state a cause of action remains pending in the trial court so that the merits have not been determined. We deny the motion. The trial court’s order of December 24, 1981, which dissolved the temporary restraining order and also denied the plaintiffs’ motion for a preliminary injunction was based on the recited finding “that the Defendant Brenner lawfully appointed Defendant Dakuras to the office of Temporary Chief of Police on December 2, 1981.” The order dated December 31, 1981, which enjoined the village board from enacting any ordinance which would remove the power of the mayor to appoint recited that it came on for hearing on the counter-complaint for declaratory judgment which both parties had agreed to have proceed to hearing on December 24; confirmed its previous finding that the village was not a commission form of government and not a home rule unit, that the chief of police is a village officer; found that the only form of municipal government which authorized the city council or the board of trustees of the village to exercise the powers of appointment and removal is the commission form; noted that the board had sought to remove the power to appoint from the mayor and was planning to override the mayor’s veto of that ordinance and enjoined the board from enacting any such ordinance.

The test applied to whether litigation has been terminated in the trial court is one of substance, not mere form. (People ex rel. Pollution Control Board v. Fry Roofing Co. (1972), 4 Ill. App. 3d 675, 678.) We conclude that the trial court did reach the merits of the declaratory judgment action filed by the village by ruling on the legal questions which were raised in the defendants’ counterclaim for declaratory judgment. This ruling disposes of all of the grounds raised in the motion to dismiss. There are no remaining factual issues pending in the trial court and the December 31 order ruled on the issue as a question of law involving the construction of the applicable statutes. The trial court’s orders had the effect of disposing of the entire controversy on its merits and we will therefore proceed to review the cause.

It is conceded that the village is a non-home-rule unit and has not adopted the commission form of government. It further appears undisputed that the village, by local ordinance 62 — 22, has adopted and is governed by section 10 — 2.1—1 et seq. of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—1 etseq.). Mayor Brenner claims the power of temporary appointment pursuant to sections 3 — 7—1 and 3 — 7—2 of the Illinois Municipal Code, which provide, as pertinent:

“Instead of providing for the election of the following officers * * *, the city council, in its discretion, may provide by ordinance * * * for the appointment by the mayor, with the approval of the city council, of a city collector, a city marshal, a city superintendent of streets, a corporation counsel, a city comptroller, or any of them, and any other officers which the city council considers necessary or expedient. * * * [T]he city council, by a like vote, may discontinue any office so created, * * *. "(Emphasis added.) (Ill. Rev. Stat. 1979, ch. 24, par. 3 — 7—1.)
* * *
“Unless otherwise specifically provided by statute, all officers of any city shall be appointed by the mayor by and with the advice and consent of the city council. Vacancies in all such city offices may be filled in the same manner. * * *
* * * If such officer ceases to perform the duties of or to hold his office * * * the mayor may appoint a temporary successor to the officer.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 24, par. 3 — 7—2.)

The trial court’s ruling was based on these provisions and its consideration of Pechous v. Slawko (1976), 64 Ill. 2d 576, which it found controlling.

We begin our analysis with reference to section 3 — 8—1 of the Illinois Municipal Code whereby the president appoints village officers “with the advice and consent” of the board of trustees (Ill. Rev. Stat. 1979, ch. 24, par. 3 — 8—1). This statute does not mention any temporary appointive power; however, by section 3 — 12—2 the president “except as otherwise provided in this Code, shall have the same powers * * * as the mayor of a city.” (Ill. Rev. Stat. 1979, ch. 24, par. 3 — 12—2.) Thus a village president, having appointed a temporary successor to village office, may claim that he is acting with the same power by section 3 — 12—2 as vests by section 3 — 7—2 in the mayor.

Plaintiffs point out that such appointments are limited to “offices,” and contend that by local ordinance 4 — 1—1 the chief of police is not a village officer whose appointment is subject to the Illinois Municipal Code, but rather that the ordinance authorizes only a place of employment:

“4 — 1—1. Department Created
There is hereby continued, created and established an executive department of the Village, to be known as the Police Department. The Police Department may consist of one Chief of Police, five (5) Sergeants, twelve (12) Patrolmen and such other special patrolmen, patrolwomen, watchmen and employees as may be lawfully provided from time to time.” (Emphasis added.)

We agree that the office of policeman is unknown at common law and exists only when fixed by statute or ordinance (Kelly v. Chicago Park District (1951), 409 Ill. 91, 96-97; Krawiec v. Industrial Com. (1939), 372 Ill. 560, 563), but further determine that the chief of police by statute and ordinance holds a village office. Generally, an office is a place in a governmental system created or recognized by the law of the State, which either directly or by delegated authority assigns to the incumbent the continuous performance of certain permanent public duties. See People ex rel. Jacobs v. Coffin (1918), 282 Ill. 599, 606.

By local ordinance 4 — 1—5(a), pertaining to his duties, the chief of police “shall be the chief executive officer of the Police Department. He shall devote his whole time to the duties of this office * * *." And further, that “[bjefore entering upon the duties of his office, the Chief of Police shall execute his bond * * *."

Moreover, it appears by the last paragraph of section 10 — 2.1—4 of the Illinois Municipal Code that any full-time member of a regular police department in a municipality subject to division 2.1 is a “city officer.” This provision has been interpreted to establish a municipal office in the absence of an ordinance creating the office of policeman. People ex rel. Siegal v. Rogers (1947), 397 Ill. 187, 193-94. See also City of Danville v. Industrial Com. (1967), 38 Ill. 2d 479, 485.

From the ordinance and statute above, we conclude that the village office of chief of police has been created and is to be filled subject to the Illinois Municipal Code.

Under the Code, plaintiffs contend that section 10 — 2.1—4 withdrew the president’s power of appointment to the office:

“Sec. 10 — 2.1—4. Fire and police departments — Appointment of members — Certificates of appointments. The board of fire and police commissioners shall appoint all officers and members of the fire and police departments of the municipality, including the chief of police and the chief of the fire department, unless the council or board of trustees shall by ordinance as to them otherwise provide; * * *." (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—4.)

Plaintiffs contend that it is unlikely that the legislature intended to reserve a power of temporary appointment in the president when he can exercise the appointive power only if the trustees by ordinance so provide; and further, that under section 10 — 2.1—16 of the Act, the power to make temporary appointments resides in the Board of Fire and Police Commissioners.

The answer to plaintiffs’ argument is that the above provision by which the Board of Fire and Police Commissioners appoints all officers and members of the police department, including the chief, unless the trustees by ordinance otherwise provide, authorizes the trustees to exclude the appointment of the police chief from the Board of Fire and Police Commissioners’ appointments. (See Edwards v. City of Marion (1970), 130 Ill. App. 2d 895, 901; cf. Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129, 132 (exception relates solely to appointment and not to discharge of police chief).) First in 1963, again in 1967, and most recently in 1980, the trustees by ordinance each time excluded the appointment of the police chief from the Board of Fire and Police Commissioners. Instead, the trustees each time chose to follow a clear legislative purpose behind the exclusionary proviso contained in section 10 — 2.1—4 that enables the village president to carry out the policies of the administration through his own appointee. (See People ex rel. Cadell v. Board of Fire & Police Commissioners (1952), 345 Ill. App. 415, 419.) By ordinance 4 — 1—5(A), the police chief as head of the executive department is subject to orders of the president and trustees, who entrust to him the implementation of policies. In turn, the chief of police issues commands, enforces their timely execution, and by the nature of the office is clothed with a large discretion in deploying and disciplining his officers. (See Buege v. Lee (1978), 56 Ill. App. 3d 793,796; Conte v. Horcher (1977), 50 Ill. App. 3d 151, 154.) When the trustees enacted ordinance 4 — 1—2 and took the appointment of the police chief from the Fire and Police Commissioners, the appointment was no longer subject to the Act, including section 10 — 2.1—16, but general Code provisions applied; and the president could thereafter act with the same appointive power by section 3 — 12—2 as vests in a city mayor by section 3 — 7—2 in naming a temporary successor to the office of village chief of police.

The subsequent enactment of an ordinance by the village trustees, amending village ordinance 4 — 1—2 which was vetoed by the village president but which the trustees planned to re-enact over the veto, presents further issues for resolution. The amended ordinance 4 — 1—2 provided that the chief of police was a “city employee” to be appointed by a majority of the board of trustees. The trial court, in its order of December 31, 1981, enjoined the board from amending the ordinance so as to deprive the “mayor” of the power of appointment.

The provision which the trustees rely upon for their authority to vest appointment in themselves is the language of section 10 — 2.1—4 of the Illinois Municipal Code, “unless the * * * board of trustees shall by ordinance as to them otherwise provide * * *." (Emphasis added.) Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—4.

The authority of the trustees to “otherwise provide” does not, in our view, give the board the sole right to make the appointment. In this regard, plaintiffs’ reliance on Dianis v. Waenke (1975), 29 Ill. App. 3d 133, 144, is misplaced. There this court rejected the contention that the trustees’ control of the appointive power by ordinance related back to section 3 — 8—1 and 3 — 7—2, which vest the power in the president or mayor. The result reached in Dianis, allowing the trustees to make appointments with the president by joint vote, was later, disapproved by strong implication in Pechous v. Slawko (1976), 64 Ill. 2d 576, 584-85, where our supreme court determined that a city council or board of trustees may assume appointive power only where the municipality has adopted the commission form of municipal government as set out in the Code (Ill. Rev. Stat. 1979, ch. 24, par. 4 — 1—1 et seq.), or where the municipality, if a non-home-rule unit as here, has obtained referendum approval “for [its] officers, manner of selection and terms of office.” (Ill. Const. 1970, art. VII, sec. 7(3).) The village, however, has not adopted article 4 of the Municipal Code, nor was the ordinance that was vetoed as amended subject to referendum approval. The trustees were not entitled to disregard the methods prescribed by the Code and the Illinois Constitution for the appointment of village officers (cf. Mandarino v. Village of Lombard (1980), 92 Ill. App. 3d 78, 81 (section 10 — 2.1—4 does not limit a home rule village’s power to adopt different procedures for discharge of police chief)).

While Pechous did not involve a consideration of the provisions of the Fire and Police Commissioners Act, we believe that its rationale would not allow the same result as reached by the vetoed ordinance by a first step of the enactment of the Fire and Police Commissioners Act, which might be established by the act of the president of the village, “with the consent of the board of trustees” (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—1), and the second step by the trustees of vesting appointive power solely in themselves.

We conclude, however, that the order of December 31, 1981, enjoining the trustees is too broad in that it encompasses “any other village offices” when only the office of chief of police is here involved. The injunction could also fairly be read to prevent the trustees from placing the power to appoint the chief of police back in the Board of Police and Fire Commissioners. The injunction is hereby modified to enjoin the trustees from enacting any ordinance which would place the power of appointment of the chief of police solely in themselves.

The appointment of Dakuras by the village president was valid. The orders denying plaintiffs’ declaratory judgment are therefore affirmed. The injunction entered on the village president’s countercomplaint is affirmed as modified.

Affirmed as modified.

UNVERZAGT and VAN DEUSEN, JJ„ concur.

       “Any full time member of a regular fire or police department of any municipality which comes under the provisions of this Division or adopts this Division 2.1 or which has adopted any of the prior Acts pertaining to fire and police commissioners, is a city officer.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—4.

       “§10 — 2.1—16. Temporary appointments. In order to prevent a stoppage of public business, to meet extraordinary exigencies, or to prevent material impairment of either the police or fire department, the board may make temporary appointments, to remain in force until regular appointments may be made under the provisions of this Division 2.1, but never to exceed 60 days.” Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—16.


source: Caselaw Access Project

author: JUSTICE LONDRIGAN JUSTICE TRAPP,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RAMON P. WIERMAN, Defendant-Appellee.
    Fourth District
    No. 17644
    Opinion filed June 15, 1982.
    Rehearing denied July 12, 1982.

      TRAPP, J., dissenting.
    Paul L. Oglesby, Jr., Assistant State’s Attorney, of Charleston, for the People.
    Stephen R. Ryan, of Ryan, Grabb, Cini & Bennett, of Mattoon, for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Defendant was ticketed for driving under the influence of intoxicating liquor on August 6,1981. The arresting officer filed an affidavit and report with the circuit clerk on August 7, 1981, detailing defendant’s refusal to submit to a breath test. Defendant filed a petition for a hearing, as allowed by statute.

The hearing was held on October 26, 1981. The only witness called by either party was the arresting officer, Mark Finley. A summary of Officer Finley’s testimony is presented below.

On August 6, 1981, at approximately 12 a.m., Officer Finley was on patrol on Lincoln Avenue at Fourth Street in Charleston. He was stopped at a stoplight, facing east. The light for westbound traffic turned green. Finley observed a black Buick begin to go forward, stop and then turn north onto Fourth Street. Finley made a left turn and followed the Buick at a speed of 20 to 25 miles per hour.

The Buick continued north on Fourth Street. The car was weaving back and forth in its lane, but did not cross the yellow center line. Finley followed the Buick to Fourth and Polk, where the driver waited at a four-way intersection. The driver of the Buick stopped for several seconds and then proceeded north. As the Buick went through the intersection, it crossed over into the southbound lane and then came back into the correct lane. The vehicle continued heading north to a point just beyond Tyler Avenue where it went into a gutter on the right side of the street. The driver jerked the car out of the gutter and crossed the center line again. Officer Finley turned on his flashers and stopped the car.

Finley identified the defendant as the driver of the vehicle. After Finley examined defendant’s driver’s license, defendant told Finley that he was looking for E.L. Kracker’s, a bar located on Fourth Street. E.L. Kracker’s is located about six blocks south of the point at which defendant was stopped by Officer Finley. Defendant told Finley that he had not been drinking.

Officer Finley had the defendant get out of his car. Defendant had to lean against the car to support himself. Finley had the defendant perform the finger-to-nose field sobriety test. Defendant was unable to complete this test. Finley noticed a faint odor of alcohol on defendant’s breath. Defendant was also unable to walk a straight line. Officer Finley then informed the defendant that he was under arrest for driving while under the influence of intoxicating liquor.

After his arrival at the police station with the defendant, Finley first filled out a citation for driving while under the influence. He then filled out two copies of the “request to submit to test of breath” form. Finley handed one copy to the defendant and began reading the “nine points” contained on the form. Defendant continued to talk and demanded to make a phone call. Finley told him that he would be allowed to make a phone call after Finley had finished reading the form to him. After Finley finished reading the contents of the request form to the defendant, he allowed the defendant to make a phone call.

When defendant finished his phone call, Finley asked him if he would take the test. Defendant said he would but refused to sign the request form. Finley explained to him that a refusal to sign the form is deemed a refusal to submit to the test itself. Defendant stated, “I’m not signing nothing.” Finley marked the request “refused” at 12:36 a.m.

Several minutes later, a man and a woman arrived at the police station and spoke with the defendant. The defendant then told Finley that he wanted to sign the form and take the test. Finley told him that he had already refused and that Finley “wasn’t going to play around with it all night long.”

On cross-examination, Finley stated that he had not delivered a copy of the ticket to the defendant before reading the request form to him. Finley stated that the defendant did request to call a lawyer during the time in which Finley read the request form to the defendant. Defendant was given his Miranda rights at approximately 12:40 a.m.

Defendant moved for judgment in his favor. The trial court granted the motion on the ground that defendant had not been issued a Uniform Traffic Ticket before he was requested to submit to the breath test. The State appeals from this ruling of the trial court.

Both parties agree that the central issue on appeal is whether the trial judge erred in finding for the defendant due to the arresting officer’s failure to issue a Uniform Traffic Ticket to the defendant before requesting that defendant submit to a breath test.

Section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95½, par. 11 — 501.1) provides, in pertinent part:

“(a) Any person who, after September .30, 1972, drives a motor vehicle anywhere within this State thereby consents, under the terms of this Section, to take and complete a test or chemical analysis of his breath to determine the alcoholic content of his blood when made as an incident to and following his lawful arrest, evidenced by the issuance of a Uniform Traffic Ticket, for an offense as defined in Section 11 — 501 of this Act or a similar provision of a municipal ordinance. ” # °
# # e
If such person desires a hearing, he shall file a complaint in the Circuit Court for and in the county in which he was arrested for such hearing. Such hearing shall proceed in the Court in the same manner as other civil proceedings, except that the scope of such proceedings shall cover only the issues of whether the person was placed under arrest for an offense as defined in Section 11 — 501 of this Act or a similar provision of a municipal ordinance, whether the arresting officer had reasonable grounds to believe that such person was driving while under the influence of intoxicating liquor, whether the person was informed orally and in writing as provided in Paragraph (a) that his privilege to operate a motor vehicle would be suspended if he refused to submit to and complete the test and whether, after being so advised, he refused to submit to and complete the test upon request of the officer.”

Defendant argues that the term “lawful arrest” under section 11 — 501.1 should be construed as requiring that the arresting officer issue the driver a Uniform Traffic Ticket before requesting that the driver take a breath test. The State contends that the trial judge erred in considering the question of whether a Uniform Traffic Ticket must be issued because the scope of the implied consent hearing is limited to the four issues set forth in section 11 — 501.1(d). In the alternative, the State argues that 11 — 501.1 should not be interpreted as requiring that the Uniform Traffic Ticket be issued before a request is made that the driver take the breath test.

The State cites People v. Shorkey (1974), 23 Ill. App. 3d 662, 321 N.E.2d 46, for its contention that the question of whether a ticket has been issued may not be considered at the implied consent hearing. In Shorkey, defendant refused to submit to a breath test after being arrested for driving while under the influence of alcohol. He petitioned for a hearing under the statute. Shorkey argued that he was not bound by his initial refusal to submit to the test and was, according to the statute, entitled to 90 minutes in which to decide whether to submit to the test. The trial court found for Shorkey, and the State appealed.

On appeal, the trial court’s decision was reversed and remanded. Shorkey argued, as does the defendant in the present case, that the arresting officer was required to issue a ticket before requesting that the driver submit to a breath test. The First District rejected this argument because defendant had stipulated to all the elements required to be proved at the implied consent hearing. Therefore, the State was not required to make any further proof of those elements.

Shorkey did not answer the precise question raised in this case. Defendant made no stipulation on any matter involved in the implied consent hearing. Defendant’s position is that without the issuance of a traffic ticket before the request to submit to a breath test, a lawful arrest was not made within the requirements of sections 11 — 501.1(a) and 11 — 501.1(d).

Section 11 — 501.1 is silent on the question of when the Uniform Traffic Ticket must be issued. No Illinois court has spoken directly on this issue. There are very few, if any, cases from other jurisdictions which are directly on point. An analogous situation was decided by the Pennsylvania court in Commonwealth v. Ebert (1977), 31 Pa. Commw. Ct. 82, 375 A.2d 837.

Ebert involved the interpretation of the Pennsylvania implied consent statute which provided that a driver must be “formally charged” with driving while intoxicated before the breath test is administered. The driver, Ebert, refused to submit to the breath test. His driver’s license was suspended and he appealed the suspension.

On appeal, Ebert contended that he had not been formally charged before he was asked to take the breath test. The court rejected Ebert’s arguments and affirmed the suspension. The court held that the legislature did not intend to require a formal charge prior to the request to submit to a breath test. The purpose of the implied consent law was to get intoxicated drivers off the highways. Since “evidence” of intoxication dissipates rapidly, the court reasoned, requiring a formal charge before the request to submit to the breath test would frustrate the purpose of the statute. The court interpreted “formally charged” as requiring that the driver be informed that he is under arrest before the request to submit to the breath test is made.

We agree with the reasoning of the court in Ebert. The purpose of the Illinois implied consent statute is to promote highway safety by eliminating drunken drivers from our State’s highways. Requiring that a ticket be issued to a driver before he is asked to submit to a breath test could, in some cases, increase the amount of time which elapses between apprehension and the breath test, thereby making it more difficult to accomplish the statutory purpose.

Subsection (d) provides that one of the four issues within the scope of an implied consent hearing is whether the driver was placed under arrest for a violation of section 11 — 501. “Arrest” is defined in section 102 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 102 — 5) as “the taking of a person into custody.” Officer Finley testified that he informed the defendant at the scene that he was under arrest for driving while intoxicated. The issuance of a Uniform Traffic Ticket is not necessary to make a valid arrest for a traffic violation; a traffic ticket, along with an indictment and an information, is merely one type of charging instrument used in traffic cases. Cf. 4A Ill. L. & Prac. Automobiles & Motor Vehicles sec. 393 (1971).

We construe section 11 — 501.1(a) as requiring that a Uniform Traffic Ticket evidence the fact that an arrest was made. The ticket must be issued to the defendant but need not be issued before the request to submit to the breath test is made.

The trial court erred in reading into section 11 — 501.1 a requirement that the arresting officer issue a traffic ticket before asking the defendant to submit to a breath test. Such a requirement is both contrary to the legislative purpose behind the implied consent law and an incorrect interpretation of the language used in section 11 — 501.1.

At oral argument, defendant’s counsel argued that defendant did agree to take the test within the 90-minute period provided by the statute. An examination of the record reveals that defendant at first refused to sign the written consent form. He stated, “I’m not signing nothing.” The officer informed him that a refusal to sign the consent form constituted a refusal to submit to the test itself. Defendant persisted in his refusal. A few minutes later, defendant informed the officer that he was willing to take the test. The officer refused to administer the test because defendant had previously refused to submit.

The First District ruled on this issue in Shorkey. The court followed the courts in sister States in holding that if defendant refused to submit to the test, the refusal is final. Defendant refused to sign the consent form. He was advised that this constituted a refusal to submit to the test. He persisted in his refusal to sign the consent form. He was not entitled to a second chance.

The judgment of the circuit court of Coles County is reversed and remanded for a new implied consent hearing in accordance with the views expressed herein.

Reversed and remanded.

GREEN, P. J., concurs.

JUSTICE TRAPP,

dissenting in part:

I dissent from that portion of the opinion which permits the arresting officer to foreclose the taking of the test within 90 minutes after the giving of the statutory admonition.

Section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95½, par. 11 — 501.1) states and reiterates the legislative pattern that a person arrested shall have 90 minutes in which he may decide to take the “test.” Section (a) (2) states the required admonition:

“(2) that he may refuse to submit to either such analysis and that his refusal to submit to either analysis within 90 minutes after receiving the notice may result * * *.”

A further admonition provides:

“(3) that he may consult with an attorney or other person by phone or in person within that 90 minutes.”

Finally, the statute states its purport:

“After being so advised the arrested person may study the written notice and may consult with an attorney or other person by phone or in person but refusal to submit to the test within 90 minutes after being given the written notice shall constitute a refusal to take the test.” (Emphasis added.)

The last quoted portion of the statute defines “a refusal to take the test” as the “refusal to submit to the test within 90 minutes.” (Emphasis added.)

The admonitions establish, in plain language, that there is a period of 90 minutes in which the person arrested has to inquire, consult and determine whether or not to submit.

The principal opinion is grounded upon the several events in a time sequence working back from the refusal endorsed “12:30 a.m.” The “stop” is said to have been near midnight. There were the events of identification and field tests at the scene with the incidental conversations and the time required to transport the defendant to the police station, together with the completion of the forms and the reading of them. Defendant was permitted to make a telephone call, but the officer required that he answer the demand that he take the test before defendant had an opportunity to confer with his attorney or other person whom he called. So far as it appears, the officer did not ascertain whether or not defendant expected to confer with an attorney. Thus, when defendant had had an opportunity to consult, he was thwarted by the trick of time devised by the officer and the rule followed here. So far as it appears, defendant agreed to the test within minutes of his consultation, and within minutes of “receiving the notice.”

The carefully stated legislative scheme may thus be thwarted and avoided and made meaningless by an official technique of making an immediate demand as to whether or not the person will take the test. Only an extraordinarily sophisticated person might devise a precisely worded response that he had 90 minutes in which to decide to take the test. If such response is not ruled a refusal, virtually any other immediate answer would be so ruled. The mild reproof in the principal opinion is not sufficient to inhibit the method used to destroy the effect of the statute and bar effective consultation with an attorney.

The text of the opinion in Shorkey does not state such details as would permit a determination of whether the court considered the factors presented.

If the operation of the statute, as written, creates an onerous burden for the police services, the remedy is to be determined by the legislature rather than through a distortion of the plain language of the statute.


author: JUSTICE LINDBERG

text:
    MONOTRONICS CORPORATION et al., Plaintiffs-Appellants, v. GARY D. BAYLOR, Indiv. and d/b/a Gary Baylor Co. and d/b/a Baylor Electronics, Defendant-Appellee.
    Second District
    No. 81-302
    Opinion filed June 9, 1982.

      John E. Juergensmeyer, of Juergensmeyer, Zimmerman, Smith & Leahy, of Elgin, for appellant.
    Arthur Janura, of Tenney and Bentley, of Chicago, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Monotronics Corporation, a small closely held corporation and two principals of that corporation, John S. Archer and Howard L. Plante, brought suit in the circuit court of Du Page County against Gary D. Baylor, a third principal who had served as the corporation president. In their complaint for injunctive relief and monetary damages, plaintiffs alleged (1) that Baylor had breached his fiduciary duty to the corporation by engaging in a competing business; (2) that Baylor had used the services of Monotronics employees in the conduct of his competing business without reimbursing Monotronics; and, (3) that Baylor had misused and misappropriated corporate funds by paying himself unauthorized sales commissions and unearned overtime.

The case originally came before the circuit court on February 11, 1980, on a petition for a temporary restraining order to prevent Baylor from acting as president of Monotronics or from entering the premises of the corporation. The order was granted and further hearings set for February 21, 1980. The order was later dissolved and an injunction entered which mandated that Baylor be allowed to serve as president of Monotronics. On June 10, 1980, the parties entered into a stipulation concerning the issues to be determined by the court. These were:

“A. Whether or not plaintiffs were entitled to have returned the sums represented by two checks drawn by the defendant, Baylor, as sales commissions for the years [sic] 1978 in the amount of $5,074.18 and 1979 in the amount of $15,114.94 and other alleged sales commissions during 1978-1980.
B. A claim of plaintiffs that the defendant in violation of his fiduciary responsibility to the plaintiff corporation, personally sold technical equipment to hospitals and other users, and in doing so, utilized the services of employees of the plaintiff corporation in assembling, distributing, and servicing said equipment without compensating the plaintiff corporation therefore.
C. Claims of plaintiffs that Gary D. Baylor paid overtime to himself in excess of time expended on matters involving the plaintiff corporation and paid himself for time spent on his individual and private business.
D. A counter-claim by defendant Baylor for his salary for the period February 11, 1980, to February 21,1980, if any such sum is found to be due, in the sum of $1,000.
E. A counter-claim of defendant Baylor for attorney’s fees in defense of the temporary injunction and the dissolution of the temporary restraining order of February 11, 1980 which, it has been agreed, shall not exceed $2,000.”

The parties further agreed that any awards to Monotronics were to be subject to a one-third reduction in recognition of the defendant’s ownership interest.

Following a bench trial, the court denied plaintiffs’ claims regarding the overtime and commission payments; found that defendant had in fact breached his fiduciary duty to Monotronics by engaging in a competing business and entered judgment against him in the amount of $4,019, his gross profit realized from the competing venture; granted defendant’s claim for $1,000 back salary and denied defendant’s claim for attorney fees. On appeal, the plaintiffs raise four issues. These are: (1) whether the trial court properly calculated the damages awarded to plaintiffs as a result of Baylor’s breach; (2) whether as a matter of law, the finding that defendant had breached his fiduciary duty necessitated forfeiture of all compensation owing defendant for the period of the breach; (3) whether the trial court’s findings concerning the commission and overtime checks were against the manifest weight of the evidence; and (4) whether the plaintiffs were entitled to punitive damages in this case.

We were aided in our consideration of this case by the trial court’s extensive memorandum of decision and findings of fact. Our review of the record reveals that these findings were in all regards accurate and fair.

I

Plaintiffs contend that the trial court erred in entering a judgment which fixed damages for Baylor’s breach of fiduciary duty in the amount of the gross profit Baylor realized as a result of his breach. The plaintiffs maintain that the Illinois Supreme Court’s decision in Vendo Co. v. Stoner (1974), 58 Ill. 2d 289, 321 N.E.2d 1, cert. denied (1975), 420 U.S. 975, 43 L. Ed. 2d 655, 95 S. Ct. 1398, requires that damages for such a breach reflect the amount of profits lost to the corporation. In Vendo, an employer brought suit against a former officer/director alleging a violation of fiduciary duty by virtue of that officer’s efforts to develop a machine which would be competitive with the older, less satisfactory model produced by the plaintiff corporation. On appeal, it was the plaintiff corporation’s position that damages should be granted in the amount of profits which it would have realized had it owned the newer machine. Defendant maintained that plaintiffs could recover only those lost profits attributable to the fact that the products made by plaintiffs had to compete with the newer machine. The supreme court adopted the former standard, noting the existence of two “limiting factors.” (58 Ill. 2d 289, 310, 321 N.E.2d 1, 13.) First, the court stated that the loss of profits is not a matter ordinarily susceptible of highly detailed direct proof. Thus the court held, inferential proof should be admissible to establish the amount of damages. (See also Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 281 N.E.2d 323.) The second limiting factor noted by the court is that the assessment of damages by a trial court sitting without a jury will not be set aside unless it is manifestly erroneous. Vendo Co. v. Stoner (1974), 58 Ill. 2d 289, 311, 321 N.E.2d 1, 13; Schatz v. Abbot Laboratories, Inc. (1972), 51 Ill. 2d 143, 149, 281 N.E.2d 323, 326.

In this case we find that the ruling of the trial court was not manifestly erroneous, was supported by substantial evidence, and further, is in harmony with the ruling set forth in Vendo Co. v. Stoner (1974), 58 Ill. 2d 289, 321 N.E.2d 1, cert. denied (1975), 420 U.S. 975, 43 L. Ed. 2d 655, 95 S. Ct. 1398. Plaintiffs in their brief argue that the award made by the court should include, at minimum: (1) the amount of time defendant spent on his business while being paid by Monotronics; (2) the amount of time spent by Monotronics employees in defendant’s business; (3) profits earned by defendant from his competing business; and, (4) sales lost to Monotronics as a result of defendant’s competing business.

Little evidence was presented on these points by the plaintiffs at trial. The record indicates that at the time when plaintiffs claim injury due to the fact that defendant was not concentrating on Monotronics business, sales rose, principally due to the efforts of Baylor, 29% in 1978 and 34% in 1979. Evidence was also adduced which indicated that Baylor was the chief sales officer and that the other principals had historically devoted their energies to nonselling activities. Plaintiffs make no references to the record which established that they suffered damages in excess of the amount of the trial court’s award. Further, the trial court noted that the witnesses presented by plaintiffs were long-time employees or relatives of the plaintiff principals and that their testimony indicated a fairly strong bias against and hostility toward Baylor.

Determinations as to credibility or bias are matters well within the purview of the trier of fact. (Riemer Bros. v. Mariis Construction Co. (1978), 64 Ill. App. 80, 380 N.E.2d 1160.) As estimate of profit loss by an interested witness does not constitute such evidence as will, alone, support a judgment for damages. (Tonchen v. All-Steel Equipment, Inc. (1973), 13 Ill. App. 3d 454, 300 N.E.2d 616.) Here, the court relied upon what it apparently considered to be the less biased testimony of defendant’s personal accountant, who was called by the plaintiffs and who testified over defendant’s objection.

While the Illinois Supreme Court has been clear in its holdings that a judgment for lost profits may be supported by inference, no cases held that all possible inferences must be indulged, nor has the court done away with the requirement of evidence altogether. The record here indicates that the trial court had firm evidence before it which established the amount of the gross profit realized by the defendant and very little unbiased evidence as to the elements suggested by the plaintiffs.

II

Plaintiffs next contend that as a matter of law, the finding that defendant had breached his fiduciary duty must result in complete forfeiture of all compensation paid or owing to him for the time of the breach. Plaintiffs seek to have the court order disgorgement of all payments made to defendant during the period of the breach. Plaintiffs also challenge on these grounds, that portion of the trial court’s order awarding $1,000 to defendant as salary for the 10-day period during which he was restrained by court order from acting as president of plaintiff corporation.

Plaintiffs rely principally upon Vendo Co. v. Stoner (1974), 58 Ill. 2d 289, 321 N.E.2d 1, cert. denied (1975), 420 U.S. 975, 43 L. Ed. 2d 655, 95 S. Ct. 1398, and ABC Trans National Transporto. Aeronautics Forwarders, Inc. (1980), 90 Ill. App. 3d 817, 413 N.E.2d 1299, for the proposition that as a matter of law the defendant must disgorge any and all compensation paid to him during the period of the breach of his fiduciary duty. Although an order dictating full forfeiture was affirmed in that case we find no such ruling in Vendo. Rather, in that case the supreme court rejected arguments that the existence of an employment contract pre- ' eluded such relief and that forfeiture of salary in addition to an award of lost profits resulted in an improper double recovery.

In ABC, the appellate court did, as plaintiffs contend, overturn a trial court’s attempt to “apportion” a forfeiture. In that case, the trial court ordered a defendant found to be in breach of his fiduciary duty to disgorge only one-third of the compensation paid him during the breach, in recognition of that portion of his services which were, in the court’s opinion, “properly” rendered. (ABC Trans National Transport o. Aero nautics Forwarders, Inc. (1980), 90 Ill. App. 3d 817, 838, 413 N.E.2d 1299, 1314.) The appellate court modified the award and forced the defendant to pay back the full amount. The court held that:

“Under the law of this State it has long been recognized that ‘an agent is entitled to compensation only on a due and faithful performance of all his duties to his principal.’ (1 Ill. L. & Prac. Agency §93 (1953), citing, e.g., Steinmetz v. Kern (1941), 375 Ill. 616, 32 N.E.2d 151.) In applying this rule ‘it makes no difference whether the result of the agent’s conduct is injurious to the principal or note, as the misconduct of the agent affects the contract from considerations of public policy rather than of injury to the principal.’ (Emphasis added.) (Steinmetz v. Kern (1941), 375 Ill. 616, 621, 32 N.E.2d 151, 154; * * *)” (90 Ill. App. 3d 817, 837, 413 N.E.2d 1299; 1314-15.)

Plaintiffs place great weight upon this language.

We note several crucial factual distinctions between ABC Trans National Transport v. Aeronautics Forwarders, Inc., and the case before us. In ABC, the evidence clearly established that the defendant had conspired to bring about a massive personnel walkout and customer defection to a competing firm. The court in ABC insisted upon full forfeiture because defendant’s willful participation in a conspiracy to steal employees and accounts rendered his performance as an agent incomplete. In the instant case, the evidence supports the trial court’s conclusion that Baylor continued to work diligently for the plaintiff corporation, while forming an independent company which competed to some extent with Monotronics. Further, the evidence adduced at trial tended to show that plaintiffs had acquiesced in Baylor’s competitive activity. No such acquiescence was apparent in ABC.

Finally, and we think most importantly, the record before us establishes that the plaintiffs benefitted substantially from Baylor’s performance of his duties during the period of his breach. Due primarily to his efforts, Monotronics sales rose and along with them, the incomes of the plaintiff principals. This factor was utterly lacking in ABC, and ritualistic application of that rule would produce an extremely harsh and unjust result in this case.

In its order, the trial court made reference to “equitable principles” which worked to prevent an order of complete forfeiture in this case. Other jurisdictions have recognized the need for flexibility in their applications of the forfeiture rule. For instance, in Richardson v. Blue Grass Mining Co. (E.D. Ky. 1939), 29 F. Supp. 658, aff’d (6th Cir. 1942), 127 F.2d 291, cert. denied (1942), 317 U.S. 639, 87 L. Ed. 515, 63 S. Ct. 30, the court found that the defendants had breached their fiduciary duties by diverting corporate funds and property to their own use. While acknowledging the general rules of such a breach will result in a forfeiture of the right to compensation, the court noted that the rule was not so rigid as to leave no room for the exercise of judicial discretion by a court of equity. The court refused to order full forfeiture, noting that the defendants had served the corporation efficiently and had materially contributed to the success of the enterprise. (Accord, Production Machine Co. v. Howe (1951), 327 Mass. 372, 99 N.E.2d 32.) We find that the trial court was within its discretion in refusing to order forfeiture and in granting the back salary payment sought by Baylor.

Ill

Plaintiffs contend that the court erred in its refusal to order restitution of overtime and commission payments drawn by defendant. We find that the court’s order in this regard is supported by the manifest weight of the evidence.

The trial court found that the evidence tended to show an agreement by the principals to pay commissions for sales. The court noted that Baylor’s conduct was consistent with his account that the parties had reached such an agreement in 1978. Sales rose substantially in that year and continued to rise through the next year. The court also noted that testimony of the two plaintiff principals that no such agreement existed was overweighed by evidence which indicated that all the principals received commission checks. There was some testimony to the effect that although they received such checks, Plante and Archer understood them to be reimbursement for overtime. However, Plante testified that he received a check in excess of $600 which he, in fact, understood to be a commission payment. The court also noted that upon learning in early 1979 that defendant had received over $5,000 in commission payments, the plaintiffs were silent. Characterizing this silence as acquiescence the court held that, at the very least, plaintiffs had ratified that action.

The court also found that the evidence did not support the allegation that defendant had improperly paid himself overtime. The evidence presented by plaintiffs on this point centered upon their contention that defendant’s “overtime” had been spent in pursuit of his own personal business. Once again, the evidence relied upon by Monotronics in urging reversal is the testimony of Monotronics employees, including the current wife of plaintiff John Archer. The trial court stated that it believed these witnesses to have been biased, and apparently did not choose to rely heavily on their testimony. It is not the function of a reviewing court to second guess the trier of fact on matters of credibility, and once again we decline to do so. The trial court also commented, and we agree, that any injury resulting from the defendant’s conduct was fully redressed by virtue of the fact that the corporation had been granted damages in the amounts of Baylor’s gross profit from his other endeavors. We note that the testimony clearly established that Baylor had actually experienced a net loss on these ventures.

IV

Finally, Monotronics claims that the court erred in failing to grant punitive damages in this case. The law in Illinois is clear that the final determination of whether punitive damages should be awarded is left to the trier of fact and that, absent an abuse of discretion, the determination will not be disturbed by a reviewing court. (Anvil Investment Limited Partnership v. Thornhill Condominium, Ltd. (1980), 85 Ill. App. 3d 1108, 407 N.E.2d 645.) The trial court committed no abuse of discretion here. The evidence adduced indicated that the members of this closed corporation had become increasingly disenchanted with each other over the years, and that this disenchantment finally resulted in a lawsuit. Nothing in the record suggests that the defendant’s behavior was either fraudulent or malicious. Illinois law provides for punitive damages only upon such a showing. See City of Chicago v. Martin (1868), 49 Ill. 241.

The trial court in this case was confronted with a complicated and highly acrimonious “business divorce.” In addition to being supported by the evidence contained in the record, the order entered by the circuit court of Du Page County was fair and evenhanded. Accordingly, we affirm.

Affirmed.

NASH and REINHARD, JJ, concur.


text:
    MILDRED GALLO, Plaintiff-Appellant, v. KENNETH HENKE et al., Defendants-Appellees.
    Second District
    No. 81-716
    Opinion filed June 9, 1982.

      Lawrence Schlam, Harvey L. Walner & Assoc., and Geoffrey G. Johnson, all of Chicago, for appellant.
    John H. Krackenberger, of Brydges, Riseborough, Morris, Franke & Miller, of Waukegan, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Mildred Gallo, appeals from an order of the circuit court of Lake County which dismissed her personal injury action against defendant, Kenneth Henke and the County of Lake. The court dismissed the action on account of plaintiffs failure to appear for the taking of her evidence deposition. Plaintiff contends on appeal that her absence did not constitute an unreasonable refusal to comply with discovery, and that dismissal of her complaint with prejudice on this basis was an unduly harsh sanction.

On October 15, 1979, plaintiff filed a complaint in the trial court seeking recovery for personal injuries allegedly sustained in an automobile accident on January 10,1977. Kenneth Henke, the Lake County Highway Department and the County of Lake were named as defendants. Plaintiff had previously filed a complaint in these premises, 78L508, but had voluntarily dismissed her action without prejudice. The proceedings in the prior case have been filed herein as a supplemental record. A special and limited appearance was filed on behalf of the County and the Lake County Highway Department followed by a “motion to quash purported service of summons.” On December 14, 1979, the trial court granted the latter motion.

On four or five occasions during the pendency of litigation, defendants served plaintiffs’ counsel with notices for the taking of plaintiff’s deposition. The deposition was to be taken at the offices of defendants’ counsel in Waukegan, Illinois. The dates listed in the respective notices were December 14,1979, April 6,1981, April 24,1981, and August 6,1981. (It was alleged in defendants’ motion to dismiss that a notice of deposition had also been served for April 14, 1981, although no notice to that effect appears in the record.)

On August 25,1981, defendants filed a motion to dismiss alleging that on the December date and each of the April dates for which the deposition had been scheduled, plaintiff had refused to appear and had instead requested a. continuance. It was further alleged that plaintiff had failed to appear on August 6, 1981, and that no continuance with respect to that date had been requested by plaintiff. Attached to the motion to dismiss was a transcript of the proceedings which occurred on August 6. In that transcript, defendants’ counsel stated that neither plaintiff nor her attorneys had appeared, and that no communication concerning the deposition had been received. A call had been placed to the offices of plaintiff’s counsel, and a secretary advised that, while the deposition was marked on their date book, apparently no attempt had been made to contact plaintiff concerning her attendance at the deposition. Plaintiff filed no response to the motion to dismiss, and on August 25,1981, the trial court, noting that the cause had been previously dismissed and finding “no showing of a basis for the plaintiff’s failure to appear for her deposition,” granted the motion and dismissed the cause with prejudice. Plaintiff filed a timely notice of appeal.

Prior to addressing the merits of the appeal, we consider the motion to dismiss and for other relief, and the objections thereto, which this court has ordered taken with the case. Defendants advance two bases for dismissal of the appeal: that plaintiff, a nonresident of Illinois, had failed to post a bond for costs, and that no report of proceedings has been filed.

Supreme Court Rule 364 (73 Ill. 2d R. 364) provides for issuance of a rule to show cause why the appeal should not be dismissed when it is shown that an appellant is a nonresident of Illinois and has failed to post a bond for costs. However, this court denied defendants’ motion for a rule to show cause on February 9,1982. The question is moot. Defendants also assert the appropriateness of dismissal or summary affirmance due to plaintiff’s failure to file a report of proceedings. However,, this case presents a legal issue arising from the dismissal of the complaint and was decided without an evidentiary hearing. A report of proceedings is thus unnecessary to decision of the appeal. Venturini v. Affatato (1980), 84 Ill. App. 3d 547, 405 N.E.2d 1093.

Defendants next move to strike the supplemental record which was filed in this case, 79 L 919, on plaintiff’s motion on December 30, 1981. The supplemental record consists of the common law record in the prior lawsuit, 78 L 508, between these parties, which was voluntarily dismissed by plaintiff. The extent to which the record of the former case was before the court here cannot be ascertained precisely, although the court in its order of dismissal did refer to the case number and its result. The sole matter of substance with respect to this case contained in the supplemental record is the statement, found in plaintiff’s answer to interrogatories and in her motion for voluntary dismissal, that she was then a resident of Alabama. In view of the limited substantive importance of the supplemental record to this appeal, the trial court’s reference to the case number in its order and the fact that defendants did not object to the motion to file the supplemental record when it was first presented to this court, the motion to strike is denied.

Defendants also move to strike the appellant’s brief or Issue I therein. They claim that the brief as a whole is violative of Supreme Court Rule 341 (73 Ill. 2d R. 341), in that its components are not listed in the order provided by rule, and that the brief’s introductory paragraph is incomplete, argumentative, and replete with matters outside the record. Similar objections have been lodged with respect to the brief’s statement of facts, and defendants further complain of plaintiff’s failure to cite cases in accordance with Rule 341(d). While there is merit to many of defendants’ contentions concerning the appellant’s brief, none of the violations of Supreme Court Rules noted are of such flagrancy to hinder or preclude review, and we find that neither striking the brief nor dismissal of the appeal is warranted. With respect to the motion to strike Issue I, defendants are correct that the record discloses little information upon which the merits of that issue can be decided. However, while that fact may militate in favor of affirming the trial court’s determination we are not inclined to strike the issue from the appellant’s brief.

In summary, the motion by defendants to dismiss and for other relief is denied.

Plaintiff maintains that inasmuch as she is a nonresident of Illinois and was not served with an order of court requiring her attendance, her failure to appear for the noticed evidentiary depositions cannot be deemed an unreasonable failure to comply with discovery. Defendants, in their motion to strike the supplemental record, have raised an initial issue as to whether plaintiff’s nonresidency at the time of the events here in question has properly been made matter of record. Defendants also maintain that plaintiff’s failure to frame a challenge in the trial court to the various notices of deposition militates against her position on this appeal.

Plaintiff contends that she was a resident of Alabama at all times at which she was noticed to appear so that under the terms of Supreme Court Rule 203 (73 Ill. 2d R. 203) she was not required to attend any deposition without a prior order of court to that effect. As defendants note in their motion to strike, there is no indication in the record of this case that plaintiff is a nonresident. Such information was contained in the record of the former case between these parties, on file here as a supplemental record, but that information, even assuming it was known to the trial court in this case, was current only as of August 1979. The record fails to substantiate plaintiff’s claim to have been a nonresident of Illinois in 1981.

Plaintiff’s position as to the reasonableness of her failure to attend the deposition must fail, for her argument on this issue is premised entirely on her nonresidence in Illinois.

However, even if plaintiff’s nonresidence had been shown, Supreme Court Rule 204(a)(3) (73 Ill. 2d R. 204(a)(3)) provides that “Service of notice of the taking of the deposition of a party * * * is sufficient to require the appearance of the deponent and the production of any documents or tangible things listed in the notice.” (Emphasis added.) This Rule is concerned with establishing a procedure by which the appearance of the deponent may be compelled. Although Rule 204 recognizes a distinction between actions pending in Illinois and those pending in other jurisdictions, it does not differentiate between parties residing in Illinois and nonresidents. On the other hand, Rule 203 is concerned with the place at which depositions may be taken. Although the terms of the latter Rule established the authority of the court to order a nonresident plaintiff to appear in this State for the purpose of giving a deposition (In re Estate of Atwood (1968), 97 Ill. App. 2d 311, 240 N.E.2d 451), neither of the Rules here in question establishes the issuance of a court order as a prerequisite to the taking of a deposition of a nonresident plaintiff.

Plaintiff’s position with respect to the operation of Rules 203 and 204 was implicitly rejected in In re Estate of Atwood. In both Atwood and Coutrakon v. Distenfield (1959), 21 Ill. App. 2d 146, 157 N.E.2d 555, the courts noted the potential for abuse of discovery, but in each instance found impermissible the suggestion that a party required to give a deposition may ignore the abuse-prevention measures provided by the Supreme Court Rules and choose instead not to appear.

In the absence of any affirmative suggestion in the record that discovery was being abused, plaintiff was required to respond to the notices of deposition served upon her counsel. In view of her failure to do so or to seek further continuance of the deposition scheduled for August 6, 1981, the record provided the trial court a basis upon which it could have concluded that plaintiff had unreasonably failed to comply with discovery.

Sanctions for failure to comply with discovery are provided in Supreme Court Rule 219(c) (73 Ill. 2d R. 219(c)). Among the sanctions that may be imposed are dismissal of an action with or without prejudice. (73 Ill. 2d R. 219(c) (v).) The imposition of sanctions for noncompliance with discovery rules and orders rests largely within the discretion of the trial court and will not be disturbed on review absent a clear abuse of that discretion. Cedric Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill. App. 3d 1031, 402 N.E.2d 352; Big Three Food & Liquor, Inc. v. State Farm Fire & Casualty Co. (1979), 79 Ill. App. 3d 63, 398 N.E.2d 264.

The dismissal of a party’s cause of action is a drastic sanction and should not be invoked except in those cases where the actions of the parties show a deliberate and wilful disregard of the court’s authority. (White v. Henrotin Hospital Corp. (1979), 78 Ill. App. 3d 1025, 398 N.E.2d 24.) While the trial court may impose necessary sanctions to accomplish discovery, it may not impose sanctions which are intended primarily as punishment. An order of sanctions which is just within the meaning of Supreme Court Rule 219 is one that provides both for discovery and trial on the merits. In re Estate of Rice (1981), 96 Ill. App. 3d 1137, 421 N.E.2d 1034; Williams v. City of Chicago (1977), 54 Ill. App. 3d 974, 370 N.E.2d 119.

Although the instant plaintiff failed to appear for the taking of her deposition on four or five occasions when she had received notice to do so, on all but the last occasion she had arranged for the deposition to be continued. Defendants had notified plaintiff upon the occasion of the last continuance that they would not agree to further continuances, but were subsequently advised that plaintiff’s attorney had not made any attempt to contact plaintiff to arrange her appearance. Although the conduct of plaintiff’s attorney has delayed discovery and, consequently, disposition of the case upon the merits, this record failed to disclose her wilful or contumacious refusal to comply with discovery. For example, plaintiff made at least some response to discovery requests while the cause was pending. There is no affirmative showing in the record that plaintiff sought deliberately to obstruct the discovery process, nor does this case involve a failure to comply with a deposition date established by order of the court. Moreover, no attempt had been made to invoke lesser sanctions prior to seeking dismissal of the cause with prejudice. Finally, it does not appear on the face of the motion to dismiss or in the appended transcript that consultation had occurred between counsel in an effort to resolve their differences over discovery. In the absence of such a statement, required by Supreme Court Rule 201 (k) (73 Ill. 2d R. 201 (k)), defendants’ motion to dismiss was defective. (Williams v. A. E. Staley Manufacturing Co. (1981), 83 Ill. 2d 559, 416 N.E.2d 252.) In view of these facts and despite the absence of any explanation as to why plaintiff’s attorneys failed to contact her regarding the notice of deposition, the trial court abused its discretion in dismissing the cause with prejudice.

The authorities relied upon by defendants are distinguishable. In In re Estate of Atwood (1968), 97 Ill. App. 2d 311, 240 N.E.2d 451, sanctions were imposed after two unexplained failures to appear for deposition, the second date having been established by order of court. In Coutrakon v. Distenfield (1959), 21 Ill. App. 2d 146, 157 N.E.2d 555, it affirmatively appeared from the record that the party in question had assumed the role of an obstructionist to discovery. Indeed, it has been observed that cases upholding dismissal as a sanction for violation of discovery “involve evidence of refusal to comply with discovery procedures or gross neglect in respect thereto, and nearly all involve disobedience or repeated disobedience of court orders.” (Gillespie v. Norfolk & Western Ry. Co. (1968), 103 Ill. App. 2d 449, 455, 243 N.E.2d 27, 31; see also White v. Henrotin Hospital Corp. (1979), 78 Ill. App. 3d 1025, 398 N.E.2d 24.) Unlike the cases in which dismissal has been affirmed, the present case involves only a single failure to attend a deposition, albeit after repeated continuances, and features no other indicia of wilful failure to comply with discovery.

Finally, while in the absence of a report of proceedings this court must assume that the trial court received sufficient evidence regarding plaintiff’s conduct to justify its order (Sanchez v. Phillips (1977), 46 Ill. App. 3d 430, 361 N.E.2d 36; Bicek v. Quitter (1976), 38 Ill. App. 3d 1027, 350 N.E.2d 125), this principle does not require that this court agree that the sanction imposed was appropriate. Thus, while the record must be viewed as sufficient to support a finding that plaintiff failed to comply with discovery, we reverse and remand for consideration of sanctions other than dismissal with prejudice. See In re Estate of Rice (1981), 96 Ill. App. 3d 1137, 421 N.E.2d 1034.

Defendants’ motion taken with the case is denied. The judgment of the circuit court of Lake County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

REINHARD and UNVERZAGT, JJ., concur.


author: JUSTICE TRAPP

text:
    CLIFFORD-JACOBS FORGING COMPANY, Plaintiff-Appellee, v. CAPITAL ENGINEERING & MFG. CO., Defendant-Appellant.
    Fourth District
    No. 17569
    Opinion filed June 15, 1982.
    Rehearing denied July 20, 1982.
    John T. Phipps, of Phipps & Evans, P. C., of Champaign, for appellant.
    William L. Hatch, of Hatch, Blockman & McPheters, of Champaign, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals from an order of the circuit court of Champaign County which granted plaintiff summary judgment on its complaint seeking the recovery of amounts allegedly owing under a contract for the sale of specially manufactured goods. We affirm the trial court’s order.

The complaint alleged that on March 5,1979, plaintiff received from defendant a “purchase order” form offering to buy substantial quantities of forged parts from plaintiff for use in a defense contract which defendant had been awarded by the Federal Government. The purchase offer listed estimates of prices and quantity and requested delivery within 12 to 46 weeks. Contained in the offer was a provision relative to the pricing of the goods which stated:

“If Seller’s prices are higher than herein specified, Buyer must be so advised before shipment. If no prices are specified, goods will be billed at not more than the prices last quoted to or paid by Buyer, or at the prevailing market prices, whichever is lower.”

On March 22,1979, Clifford-Jacobs responded to the offer by means of a standard “acceptance” form which listed the goods requested, their price, and estimated completion and delivery dates. The form stated that it was accepted for production in accordance with the terms on the reverse side of the form, and that those terms were to be a part of the contract between the parties. On the reverse side of plaintiff’s acceptance form, paragraph 2, which is the subject of the instant dispute, provided:

“Prices stated herein are based on current labor, material, and overhead costs and, if any changes occur in such costs at any time prior to shipment, prices may be adjusted by the seller to reflect such cost changes. If such adjustments are not mutually satisfactory, either party may cancel on terms set forth in paragraph 10. Prices are only for the quantities indicated, for production and shipment in one lot or as near thereto as the seller’s production makes possible. Unless otherwise stated, all forging prices are based upon one set up and mill steel prices.”

Several shipments were made by plaintiff in the year 1979, but in September of that year defendant was notified that shipments on or after October 15, 1979, would be subject to a general 7.2 percentage price increase. The complaint alleged the delivery of $135,805.49 of forgings following the price increase and prayed for damages and interest on the amounts owing under the contract. Defendant subsequently tendered payment of $121,423.88, following which plaintiff moved for summary judgment to recover the remainder of amounts alleged to be due under the contract. On August 10,1981, the trial court granted plaintiff summary judgment. The court reasoned that plaintiff’s paragraph 2 became a part of the parties’ agreement since the acceptance was conditional on assent to the different terms, and the defendant had assented to the terms. The court also concluded that defendant’s contract was not in conflict with plaintiff’s provision on price increases.

The narrow question presented is whether plaintiff’s paragraph 2 became a part of the parties’ contractual agreement. Both parties agree the resolution of this question is controlled by section 2 — 207 of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 207). Section 2 — 207 provides:

“Additional Terms in Acceptance or Confirmation. (1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms- additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.
(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
(a) the offer expressly limits acceptance to the terms of the offer;
(b) they materially alter it; or
(c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.
(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.”

The aim of section 2 — 207 seems clear. It rejected the “mirror acceptance rule” which theretofore required strict acceptance on the terms proposed by the offeror and made provision for additional and different terms if the offeree’s acceptance deviated from the terms of the offer. (See Ill. Ann. Stat., ch. 26, par. 2 — 207, Illinois Code Comment, at 149-50 (Smith-Hurd 1963).) Under section 2 — 207 an acceptance if “definite and seasonable” operates as an acceptance even though containing terms additional to or different from the original offer. (J. White & R. Summers, Uniform Commercial Code sec. 1 — 2, at 27 (2d ed. 1980).) The acceptance will be considered a counteroffer only if the acceptance is expressly made conditional on assent to the additional terms. This provision of the statute has been construed narrowly to apply only to an acceptance which clearly shows that the offeree is unwilling to proceed absent assent to the additional or different terms. See McCarty v. Verson Allsteel Press Co. (1980), 89 Ill. App. 3d 498, 411 N.E.2d 936; Dorton v. Collins & Aikman Corp. (6th Cir. 1972), 453 F.2d 1161.

At bar, the acceptance by plaintiff was not expressly conditional on assent to the additional terms. The acceptance of plaintiff operated to form a contract and the term on price, contained in plaintiff’s acknowledgment, is thus either in addition to the contract or a different term. If the provision is an addition, and not a material alteration, it will become a part of the contract (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 207(2) (b)), but contrawise if it is a material alteration or actually a different provision. At bar, we believe plaintiff’s provision on prices to be an addition, and not a different term of the contract.

The parties’ forms both contained provisions relative to prices higher than, quoted, and from a comparison of the two it is apparent that they are not in conflict or different. Plaintiff’s price term contemplated a price increase as did defendant’s, and neither term prohibited the increase in the manner attempted by plaintiff.

Viewed as an addition to the contract, we arrive at the central inquiry: whether plaintiff’s price term was a material alteration of the parties’ agreement. Comments 3 through 5 of section 2 — 207 offer some guidance on this question. The comments to section 2 — 207 explain:

“3. Whether or not additional or different terms will become part of the agreement depends upon the provisions of subsection (2). If they.are such as materially to alter the original bargain, they will not be included unless expressly agreed to by the other party. If, however, they are terms which would not so change the bargain they will be incorporated unless notice of objection to them has already been given or is given within a reasonable time.
4. Examples of typical clauses which would normally ‘materially alter’ the contract and so result in surprise or hardship if incorporated without express awareness by the other party are: a clause negating such standard warranties as that of merchantability or fitness for a particular purpose in circumstances in which either warranty normally attaches; a clause requiring a guaranty of 90% or 100% deliveries in a case such as a contract by cannery, where the usage of the trade allows greater quantity leeways; a clause reserving to the seller the power to cancel upon the buyer’s failure to meet any invoice when due; a clause requiring that complaints be made in a time materially shorter than customary or reasonable.
5. Examples of clauses which involve no element of unreasonable surprise and.which therefore are to be incorporated in the contract unless notice of objection is seasonably given are: a clause setting forth and perhaps enlarging slightly upon the seller’s exemption due to supervening causes beyond his control, similar to those covered by the provision of this Article on merchant’s excuse by failure of presupposed conditions or a clause fixing in advance any reasonable formula of proration under such circumstances; a clause fixing a reasonable time for complaints within customary limits, or in the case of a purchase for sub-sale, providing for inspection by the sub-purchaser; a clause providing for interest on overdue invoices or fixing the seller’s standard credit terms where they are within the range of trade practice and do not limit any credit bargained for; a clause limiting the right of rejection for defects which fall within the customary trade tolerances for acceptance ‘with adjustments’ or otherwise limiting remedy in a reasonable manner [citations].” Ill. Ann. Stat., ch. 26, par. 2 — 207, Uniform Commercial Code Comment, at 153 (Smith-Hurd 1963).

These comments indicate that while certain clauses would normally be considered a material alteration, a finding of material alteration is dependent upon whether the addition constitutes an unreasonable surprise to one of the bargaining parties. Generally, the issue of a material alteration should not be resolved on a motion for summary judgment since the issue of whether the clause constitutes an unreasonable surprise is simply a corollary question to an ascertainment of the parties’ bargained agreement. See Ebasco Services, Inc. v. Pennsylvania Power & Light Co. (E.D. Pa. 1975), 402 F. Supp. 421, which held: Issue of whether no limitation on consequential damages in acceptance constituted material alteration to be resolved upon review of facts and circumstances surrounding multi-million-dollar transactions and not on motion for summary judgment.

Here, however, we believe that defendant’s provisions on prices warrant a conclusion, as a matter of law, that no unreasonable surprise occurred. This is necessarily so because defendant’s inclusion of his term on prices was not in conflict and was in agreement with plaintiff’s term on prices. In this situation there could be no unreasonableness or surprise when plaintiff’s increase sought to effectuate a term upon which both parties’ contracts were in agreement. We thus hold that plaintiff’s provision on prices was an addition but not a material alteration and became a part of the parties’ agreement.

Defendant next argues that the sufficiency of the notice presented a question of fact to preclude summary judgment. The standard for summary judgment is clear. It should be granted only when the pleadings, depositions, and admissions, together with any affidavits, show that there is no genuine issue as to a material, and that the movant is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1979, ch. 110, par. 57.) Summary judgment in this case is an appropriate procedure since the question involved was one of a construction of the language in the contract of the parties. (Bates v. Select Lake City Theater Operating Co. (1979), 78 Ill. App. 3d 153, 397 N.E.2d 75.) Based on our construction of paragraph 2, we conclude that plaintiff’s notice was adequate.

Plaintiff’s provision on prices does not require a specific notice to be forwarded in a prescribed manner, but only that the increase must occur before shipment, and the defendant must be given an opportunity to cancel. While this paragraph and defendant’s price term require notice to defendant before shipment, defendant was given notice of the price increase of 7.2% one month before the shipments and the amount plaintiff is seeking to recover was alleged by affidavit, to be this additional increase. This is not denied by defendant. We hold that the trial court was correct in concluding that no factual question remained on the issue of the notice’s sufficiency under the contract between the parties.

For the foregoing reasons, the order of the trial court granting plaintiff summary judgment is affirmed.

Affirmed.

GREEN, P. J., and WEBBER, J., concur.