author: JUSTICE WHITE

text:
    BENJAMIN H. RABIN et al., d/b/a Phoenix Partners, Plaintiffs-Appellants, v. VERNON P. PRENZLER et al., Defendants-Appellees.
    First District (3rd Division)
    No. 82—1018
    Opinion filed July 6, 1983.
    Rehearing denied July 28, 1983.

      L. Louis Karton, Ltd., and Gass & Lewis, Ltd., both of Chicago, for appellants.
    George J. Lynch, of Burke, Griffin, Chomicz & Wienke, P.C., of Chicago, and Robert Markowitz, of Markowitz & Lawrence, of Bloomington, for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiffs, Benjamin H. Rabin and George B. Erwood, doing business as Phoenix Partners, appeal from a final order of the circuit court of Cook County dismissing their amended complaint against defendants, Vernon P. Prenzler, Richard H. Hundman, Hundman Oil and Lumber Company, Inc., Baumgart Building Center, Inc., Kent West Side Lumber Company, and Schwulst Building Center, Inc., doing business as College Hills Partnership. The issues raised on appeal are: whether the amended complaint alleges that plaintiffs acted as real estate brokers within the meaning of section 4.02(a) of the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1977, ch. 111, par. 5706(a)), and if so, whether section 7 of the Act (Ill. Rev. Stat. 1977, ch. 111, par. 5714), prevents recovery in an action or suit in Illinois courts by plaintiffs for compensation for services rendered.

The amended complaint contains six counts. All six counts allege: that on or prior to November 1976, Robert Markowitz, as trustee under the terms of a trust agreement, owned certain real estate; that on or prior to that time, defendants had established a partnership known as College Hills Partnership; that this partnership was the beneficiary under and pursuant to the land trust agreement; that defendants intended to improve the real estate with a retail and commercial shopping center, with space to be leased to major department stores and various smaller retail and commercial tenants; that on November 8, 1976, plaintiffs and defendants entered into a written agreement; that the written agreement provided, in part, that plaintiffs would assist College Hills Partnership in obtaining tenants for the project, and that “[u]pon execution of each lease with a tenant or tenants introduced to the project by [plaintiffs], and registered with [the partnership, the partnership] shall pay [plaintiffs] a fee equal to seven percent (7%) of one (1) year’s rental under such lease, plus two percent (2%) of the balance of the aggregate rental for the lease term (excluding any optional renewal periods). ***”; that after November 8, 1976, plaintiff Rabin undertook to perform the services of introducing prospective tenants to defendants’ proposed shopping center; that plaintiffs introduced prospective tenants to defendants’ shopping center and registered them with defendants; that defendants, their leasing agents, or College Hills Mall Company, handled all negotiations and leasing with the prospective tenants introduced by plaintiff Rabin; and that an enclosed shopping center, commonly known as College Hills Mall, has been constructed on the real estate.

Count I of the amended complaint contains the following additional allegations: that defendants or their representatives have negotiated and caused College Hills Mall Company, as landlord, to enter into 17 written leases with persons introduced by plaintiffs to defendants’ shopping center; that pursuant to the agreement, the plaintiffs are entitled to recover $73,541.37 from defendants; that defendants have refused to pay plaintiffs that amount; and that plaintiffs have performed all terms and conditions of the agreement required to be performed by them. The prayer for relief in count I demands judgment against defendants in the amount of $73,541.37, interest thereon, and costs of suit. Count II of the amended complaint realleges these allegations and also alleges that in the performance of their work of introducing prospective tenants to defendants’ shopping center, plaintiffs were not required to be licensed as real estate brokers, but that if such licenses were required, plaintiffs were licensed Illinois real estate brokers at all relevant times. This count specifically alleges that plaintiff Rabin was licensed as a real estate broker on December 28, 1976, and that plaintiff Erwood was licensed as a real estate broker on June 1, 1977. The prayer for relief in count II is the same as in count I.

Count III of the amended complaint, in addition to the common allegations, alleges: that plaintiff Rabin introduced Montgomery Ward and Company (Wards) and Carson Pirie Scott and Company (Carsons) to defendants and registered them in writing with defendants; that Wards and Carsons have opened stores in defendants’ shopping center; that on terms negotiated by defendants, Wards and Carsons agreed that they would purchase part of the real estate and build their own respective stores in lieu of entering into leases with defendants under and pursuant to which defendants would have constructed stores and leased them to Wards and Carsons; that portions of the real estate were conveyed from the trustee of the land trust to each department store company, or to its respective subsidiary or affiliated company; that Wards and Carsons have opened retail stores in defendants’ shopping center; that based upon the amount of retail space in each store, the fair rental value of such space and a usual lease term between 25 and 30 years, leases for the stores constructed would have yielded between $17,600,000 and $21,120,000 in rent; that plaintiffs have performed all of the terms and conditions of the agreement required to be performed by them; and that under the terms of the agreement, plaintiffs are entitled to compensation between $387,200 and $457,600. The prayer for relief in count III demands an accounting of the “terms and arrangements” entered into by defendants and each department store company, or its respective subsidiary or affiliated company, and judgment against defendants in the amount of compensation due plaintiffs under the agreement. Count IV of the amended complaint is identical to count III, except that it adds the allegations concerning broker’s licenses contained in count II. The prayer for relief in count IV is identical to the prayer for relief in count III.

Counts V and VI of the amended complaint seek recovery of compensation from defendants on a quantum meruit theory. The allegations of count V are virtually identical to those of count III, except that count V omits the allegations of count III relating to the computation of the compensation to which plaintiffs are entitled with respect to the transactions between defendants and Wards and between defendants and Carsons. Rather, count V alleges: that the fair value of the finders services rendered by plaintiffs to defendants in introducing Wards and Carsons to defendants’ shopping center is between $176,000 and $220,000; that defendants had requested plaintiffs’ services and have accepted the benefits thereof; that defendants understood that they would be obligated to pay for such services; and that plaintiffs are entitled to a finder’s fee between $176,000 and $220,000. The prayer for relief demands judgment against defendants in an amount between $176,000 and $220,000, plus costs of the lawsuit. Count VI of the amended complaint is identical to count V, except that it adds allegations concerning broker’s licenses similar to those contained in count II. The prayer for relief in count VI is identical to the prayer for relief in count V.

One of the exhibits attached to the amended complaint is a letter dated April 1, 1977, from plaintiff Rabin to defendant Prenzler. The letter, in relevant part, states:

“We anticipate a somewhat immediate response to our national and midwest presentations. Therefore, we urge you to provide us with a form of lease acceptable to your total partnership as well as to your lender. We have found in the past that it is most advantageous to present a lease for execution to each prospect as quickly as terms are agreed upon.”

The same letter refers to a “split in the leasing responsibility,” and the letter suggests that plaintiffs had such responsibilities. Another exhibit attached to the amended complaint is a letter dated September 1, 1977, from Rabin to Prenzler, relating to the desire of Golden Bear Family Restaurants, Inc., to locate at the shopping center. The letter, in part, states: “Inasmuch as we are cobrokering this with Landau and Heyman, Chicago, we must require a full commission payable on the execution of a lease.” It also states: “Please advise whether you want us to obtain and submit the tenant’s standard lease form or that you will be preparing yours.”

There were also exhibits attached to plaintiffs’ answer to defendants’ motion to dismiss the amended complaint. The first exhibit is a letter dated April 1, 1977, from Rabin to Alberts Inc., which invited Alberts Inc. to contact Phoenix Partners to discuss its inclusion as a participant in College Hills Mall. In the letter, Rabin refers to himself as “Exclusive leasing agent for College Hills Mall.” Also attached to plaintiffs’ answer as exhibits were letters from Rabin to Carsons and to Wards. Some of these letters refer to “negotiations” by plaintiffs; however, the nature of these negotiations is unclear.

The circuit court granted defendants’ motion to dismiss the amended complaint, finding that “[plaintiffs clearly were engaged in negotiations and acted as brokers without having the required licenses ***.” This appeal is from the order dismissing the amended complaint.

Section 3 of the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1977, ch. 111, par. 5703) provides: “It is unlawful for any person to act as a real estate broker or real estate salesman *** without a certificate of registration issued by the Department of Registration and Education.” The word “broker” is defined by section 4.02(a) of the Act (Ill. Rev. Stat. 1977, ch. 111, par. 5706):

“ ‘Broker’ means any person, association, copartnership or corporation, who for compensation or valuable consideration sells or offers for sale, buys or offers to buy, or negotiates the purchase or sale or exchange of real estate, or who leases, or offers to lease, or rents or offers for rent, any real estate, or negotiates leases thereof, or of the improvements thereon for another or others, or who performs any of the foregoing acts for his own account while engaged in the business of buying or selling real estate.”

Section 7 of the Act (Ill. Rev. Stat. 1977, ch. 111, par. 5714) prohibits recovery of compensation for an act done or a service rendered by an unregistered person in the following words:

“No action or suit shall be instituted, nor recovery therein be had, in any court of this State by any person, copartnership, association, or corporation for compensation for any act done or service rendered, the doing or rendering of which is prohibited under the provisions of this Act to other than registered real estate brokers or real estate salesmen unless such person, co-partnership, association, or corporation was duly registered hereunder as a real estate broker or real estate salesman prior to the time of offering to perform any such act or service or procuring any promise or contract for the payment of compensation for any such contemplated act or service.”

The written agreement between plaintiffs and defendants, which was attached to the amended complaint as an exhibit, indicates that it was entered into on November 8, 1976. Since the amended complaint alleges that plaintiff Rabin was licensed as a real estate broker on December 28, 1976, and that plaintiff Erwood was licensed as a real estate broker on June 1, 1977, the plain words of section 7 would prohibit recovery by them based upon the agreement “for any act done or service rendered, the doing or rendering of which is prohibited *** to other than registered real estate brokers or real estate salesmen.” Section 7 clearly bars recovery for such acts or services, unless the person claiming compensation was “duly registered *** as a real estate broker or real estate salesman prior to the time of offering to perform any such act or service or procuring any promise or contract for the payment of compensation for any such contemplated act or service.” (Ill. Rev. Stat. 1977, ch. 111, par. 5714; see White v. Chicago Title & Trust Co. (1981), 99 Ill. App. 3d 323, 332, 425 N.E.2d 1017; Rubenson v. MSI Real Estate (1982), 108 Ill. App. 3d 546, 549, 438 N.E.2d 1202.) Neither individual plaintiff was a licensed real estate broker prior to the execution of the agreement. Thus, plaintiffs cannot recover compensation under the agreement for acts done or services rendered, if those acts or services are restricted by the Real Estate Brokers and Salesmen License Act to registered real estate brokers or real estate salesmen.

In this regard, we observe that counts I and II of the amended complaint seek recovery pursuant to the agreement. In counts III and IV, plaintiffs seek compensation for introducing Carsons and Wards to defendants. These counts allege a purchase of real estate by Carsons and Wards, a transaction not contemplated by the agreement between plaintiffs and defendants, but nevertheless, these counts compute the amount of compensation to which plaintiffs are entitled according to the terms of the agreement. Counts V and VI also seek compensation for introducing Carsons and Wards to defendants, but these counts allege that plaintiffs are entitled to recover the fair value of services rendered by them and accepted by defendants. Although only counts I and II seek recovery of compensation purely under the agreement between the parties, we are of the opinion that plaintiffs cannot recover under any of the counts, if the acts or services for which compensation is sought are restricted by the statute to registered real estate brokers and real estate salesmen. All six counts allege the existence of the written agreement entered into between plaintiffs and defendants, and, as noted above, section 7 bars recovery for acts or services restricted to real estate brokers and real estate salesmen, unless the person claiming compensation was “duly registered *** as a real estate broker or real estate salesman prior to the time of offering to perform any such act or service or procuring any promise or contract for the payment of compensation for any such contemplated act or service.” The amended complaint clearly alleges that neither individual plaintiff was licensed “prior to the time of offering to perform any such act or service,” or prior to the time of “procuring any promise or contract for the payment of compensation for any such contemplated act or service.” Accordingly, no recovery may be had under any of the counts if plaintiffs are seeking compensation for acts or services restricted by statute to registered real estate brokers or real estate salesmen.

Thus, the dispositive question is whether the amended complaint alleges that plaintiffs acted as real estate brokers. If so, then the circuit court properly dismissed the complaint. The answer to this question depends upon the construction given to the definition of the word “broker” contained in section 4.02 of the Act (Ill. Rev. Stat. 1977, ch. 111, par. 5706). According to section 4.02, the term “broker” includes “any person [or copartnership] *** who leases, or offers to lease, or rents or offers for rent, any real estate, or negotiates leases thereof, or of the improvements thereon for another or others.”

In White v. Chicago Title & Trust Co. (1981), 99 Ill. App. 3d 323, 325, the court observed that the Real Estate Brokers and Salesmen License Act is “a broad statutory system which is remedial and therefore should be liberally construed.” The remedial nature of the Act is clear. Indeed, section 1 of the Act (Ill. Rev. Stat. 1977, ch. 111, par. 5701) provides: “The intent of the legislature in enacting this statute is to evaluate the competency of persons engaged in the real estate business for the protection of the public.” As stated in Central National Bank v. Alexander Marketing, Inc. (1977), 47 Ill. App. 3d 58, 59-60, 361 N.E.2d 766, the Act attempts to protect the public “through an examination and licensing system,” and “[i]t enforces this system, in part, by prohibiting unlicensed persons acting as brokers and salesmen from collecting compensation for any services they may render.” See also White v. Chicago Title & Trust Co. (1981), 99 Ill. App. 3d 323, 327-28; Kilbane v. Collins (1978), 56 Ill. App. 3d 707, 713, 372 N.E.2d 415.

Plaintiffs assert that they did not act as real estate brokers. In fact, their amended complaint alleges that they acted as introducers or finders.

Some Illinois cases have recognized a distinction between finders and brokers. (Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App. 3d 834, 842, 422 N.E.2d 86; Ruskin v. Rodgers (1979), 79 Ill. App. 3d 941, 960, 399 N.E.2d 623.) In Business Development Services, Inc., the court stated: “A finder is defined as an intermediary who contracts to find, introduce and bring together parties to a business opportunity, leaving the ultimate negotiations and consummation of the business transaction to the principal *** [and] is distinguishable from a broker in that the former is not required to perform the duties of a broker in negotiating the contract.” (96 Ill. App. 3d 834, 842; see Ruskin v. Rodgers (1979), 79 Ill. App. 3d 941, 960.) It must be noted, however, that Business Development Services, Inc. did not involve the application of provisions of the Real Estate Brokers and Salesmen License Act, and that Ruskin is clearly distinguishable from the instant case on its facts. In Ruskin, intervening plaintiffs, a real estate consulting corporation and an individual real estate broker, contended that defendant, a real estate salesman, had performed brokerage services in the sale of certain property and that they were entitled under a brokerage commission agreement to part of the amount that would be paid to defendant. The appellate court held that the payments made to defendant were not within the scope of the agreement between the intervening plaintiffs and defendant, and one of its reasons for so holding was that defendant did not act as a real estate broker but was simply a finder.

In at least four Illinois appellate court cases since 1975, the statutory definition of the term “broker” has been given an expansive interpretation. (People ex rel. Fahner v. Community Hospital (1982), 108 Ill. App. 3d 1051, 1062, 440 N.E.2d 200; Sunny Ridge Realty & Insurance, Inc. v. Williamson (1979), 74 Ill. App. 3d 481, 484, 393 N.E.2d 23; Kilbane v. Collins (1978), 56 Ill. App. 3d 707, 712, 372 N.E.2d 415; Kilbane v. Dyas (1975), 33 Ill. App. 3d 439, 441, 337 N.E.2d 217.) These cases support the proposition that an unlicensed real estate broker or salesman cannot circumvent the requirements of the Real Estate Brokers and Salesmen License Act merely by showing that his services were to be limited to the procurement of an interested party to the real estate transaction. (Kilbane v. Collins; Kilbane v. Dyas.) Thus, the requirements of the Act extend to individuals categorizing themselves as “finders,” “originators,” or “introducers,” who merely introduce a buyer to a seller of real estate, but do not negotiate the terms of the transaction between the parties. (Community Hospital; Kilbane v. Collins.) In addition, the requirements of the Act, assuming the correctness of these cases, would be equally applicable to individuals who merely introduce a lessee to a lessor of real estate, but do not negotiate the terms of the lease.

These four cases recognize that the essential feature of a broker’s employment is to bring parties to a transaction together for the purpose of effecting the transaction, and that to create an exception from the licensing provisions of the Act for persons who merely find a buyer or lessee would defeat the intention of the General Assembly in enacting it. Williamson; Kilbane v. Collins (1978), 56 Ill. App. 3d 707, 713; Kilbane v. Dyas (1975), 33 Ill. App. 3d 439, 441-42.

Plaintiffs, in effect, argue that we should give the word “negotiates” in the statutory definition of “broker” a strict construction. However, we have already observed that the Real Estate Brokers and Salesmen License Act should be liberally construed, and case law indicates that a strict construction of the word “negotiates” would lead to an untenable result. Here, plaintiffs’ amended complaint alleges that they are entitled to recover compensation for introducing prospective tenants and Wards and Carsons to defendants. In effect, they are alleging that they arranged the preliminaries of a business transaction. (See Kilbane v. Dyas (1975), 33 Ill. App. 3d 439, 441-42; Black’s Law Dictionary 934 (5th ed. 1979).) Thus, we are of the opinion that the allegations of the amended complaint that plaintiffs acted as introducers alleged negotiations by plaintiffs and that the allegations were sufficient to bring them within the statutory definition of the term “broker.”

Since the amended complaint alleges that plaintiffs were not registered real estate brokers prior to the time of offering to perform acts or services restricted by statute to licensed real estate brokers or salesmen or prior to the time of procuring any promise or contract for the payment of compensation for any such contemplated act or service, plaintiffs, assuming the allegations of the amended complaint are true, are not entitled to compensation for services in introducing defendants to eventual tenants and to Wards and Carsons. Accordingly, we conclude that the circuit court properly dismissed plaintiffs’ amended complaint.

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

Affirmed.

RIZZI and O’CONNOR, JJ., concur.

      Exhibits attached to defendants’ motion to dismiss plaintiffs’ amended complaint showed: that plaintiff Rabin became licensed as a real estate broker on December 28, 1976; that plaintiff Erwood became licensed as a real estate broker on June 1, 1977; and that no real estate license had been issued to Phoenix Partners.

      The Real Estate Brokers and Salesmen License Act became effective October 1, 1973, and it repealed the Real Estate Broker Registration Act of 1921. In Kilbane v. Collins (1978), 56 Ill. App. 3d 707, the appellate court clearly applied the 1965 version of the repealed Act. In addition, the opinion in Kilbane v. Dyas (1975), 33 Ill. App. 3d 439, does not specify which statute was applied in that case. We observe, in this regard, that the provisions of sections 3, 4.02 and 7 of the current Act that are applied in the instant case were also contained in the repealed Act. See Ill. Rev. Stat. 1971, ch. 114½, pars. 1, 2, 2b.


source: Caselaw Access Project

author: JUSTICE MILLS JUSTICE MILLER,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD STANLEY, Defendant-Appellant.
    Fourth District
    No. 4—82—0451
    Opinion filed July 14, 1983.

      MILLER, J., specially concurring.
    Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Michael W. Hogan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

“The lion growled.”

The trial judge said no more continuances, “*** the court’s business requires it to proceed to trial.”

Trial in absentia.

Guilty.

We affirm.

Stanley was charged with theft with a prior conviction. He did not appear on his original trial date and his case was continued for one week. When Stanley again failed to appear, he was tried in absentia. The jury returned a guilty verdict; judgment was entered; and Stanley was sentenced — m absentia— to three years’ imprisonment.

On appeal, he contends: His identity as the accused was not proved beyond a reasonable doubt; trial in absentia was improper; it was an abuse of discretion to deny his motion for continuance; and he was improperly sentenced for felony theft because the State failed to prove beyond a reasonable doubt that he had a prior theft conviction.

We consider these issues seriatim.

I

As trial below was held in absentia, it was impossible for the State to have its witnesses point to the defendant and say, “That’s him, he did it.” The State was obliged to prove identity by circumstantial evidence. We hold the State did so properly in this case.

The State introduced into evidence People’s exhibit No. 1, which was a photograph. All three of the State’s witnesses identified the person depicted in the photograph as Gerald Stanley. Sandra Wooley and her daughter, Cheryl, stated that the exhibit was a photograph of the Gerald Stanley who lived with them at the time $130 was stolen from Cheryl’s purse. Officer Richard Hazen testified that he interviewed the Gerald Stanley in the picture and that Stanley had admitted the Wooley theft to him. This was sufficient to prove identity.

There is no reasonable doubt that the Gerald Stanley who lived with the Wooleys, the Gerald Stanley who admitted stealing from them, and the Gerald Stanley charged in this case are one and the same person. The jury so decided, and we will not disturb their finding. See People v. Jeffrey (1981), 94 Ill. App. 3d 455, 418 N.E.2d 880.

II

Stanley’s second argument focuses on the requirement that the State must request trial in absentia. (Ill. Rev. Stat. 1981, ch. 38, par. 115—4.1(a).) There is no dispute that the procedural safeguards of the statute were otherwise complied with: defendant was twice personally informed of his constitutional rights to be present at trial and to confront the witnesses against him and was given the requisite trial in absentia warning. When Stanley did not appear on his original trial date, notice of his new trial date and an additional trial in absentia warning were sent by certified mail to the address on his bond slip. Nor does Stanley appear to contend that there was insufficient evidence that he was wilfully avoiding trial. However, the statute does not require a formal motion (only a request) or a hearing. All the State must show to prima facie establish wilful avoidance is that it complied with the statutory requirements and the defendant was not present at trial. (See People v. Watson (1982), 109 Ill. App. 3d 880, 441 N.E.2d 152.) This was readily apparent from the record in this case.

As Stanley contends, the trial judge plays a limited role in a criminal prosecution. He is an impartial arbiter. (See People v. Nelson (1974), 58 Ill. 2d 61, 317 N.E.2d 31.) But, he does have inherent authority to control his docket — authority which cannot be abrogated by the legislature. (See People v. Brown (1968), 39 Ill. 2d 307, 235 N.E.2d 562; Green v. Wilmot Mountain, Inc. (1980), 92 Ill. App. 3d 176, 415 N.E.2d 1076.) This being the case, it is obvious that the legislature intended the requirement that the State request trial in absentia to prevent, for whatever reason, a defendant from either forcing or evading trial in his absence and not to intrude on the judicial function.

This case was set for trial once and continued when defendant failed to appear. The State’s Attorney made no motion for a second continuance. The trial judge certainly had authority to control his own docket. In this context, the trial judge did not act improperly in treating the State’s Attorney’s acquiescence as a request for trial in absentia.

Ill

Turning next to Stanley’s contention that his motion for continuance was improperly denied, we note initially that the grant or denial of such a motion is within the sound discretion of the trial judge. (People v. Sullivan (1981), 95 Ill. App. 3d 571, 420 N.E.2d 474.) No such abuse occurred here.

When this case was originally called for pretrial on May 10, 1981, both sides announced ready. It can hardly be claimed that two weeks later on May 25 there was insufficient time to prepare an adequate defense. Thus, People v. Lott (1977), 66 Ill. 2d 290, 362 N.E.2d 312, relied upon by Stanley, is inapposite. Unlike Lott, there was no surprise testimony in this case.

Further, Stanley cannot claim that he reasonably relied on the State’s Attorney’s representation that the case would not be tried on May 25. Counsel was well aware that the case was set for trial on that date. He also knew (or should have known) that the only way the case would not be tried would be if the trial judge granted a continuance. And, as we noted initially, it is the trial judge, not the State’s Attorney, who has discretion to grant or deny a continuance.

While there is great benefit in mutual accommodation, a criminal prosecution is still an adversary process. Occasionally, “the lion must growl” to remind counsel of this fact. No error.

IV

Nor was Stanley improperly sentenced for felony theft. In order to subject an accused to enhanced punishment under section 16—1(e)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 16—1(e)(1)), the prior theft conviction must be proved beyond a reasonable doubt. (People v. Hayes (1981), 87 Ill. 2d 95, 429 N.E.2d 490.) But, it need not be alleged in the charging instrument and proof need not be adduced at trial. Hayes.

Here, the State introduced at the sentencing hearing a certified copy of a record sheet noting that Gerald Stanley pleaded guilty to theft in Macon County. Stanley argues that merely showing that the defendant’s name and the name on a certified copy of a conviction are the same is not sufficient to prove the prior conviction beyond a reasonable doubt. People v. Martin (1981), 97 Ill. App. 3d 704, 423 N.E.2d 493, relied upon by Stanley, does support this proposition. However, it is of dubious precedential value in light of People v. Davis (1983), 95 Ill. 2d 1, 447 N.E.2d 353.

The Davis opinion, which was issued after oral argument in this case, holds that “identity of name gives rise to a rebuttable presumption of identity of person.” (95 Ill. 2d 1, 31, 447 N.E.2d 353, 368.) Coincidentally, in ruling as it did, the court made reference to a case involving a defendant with the same last name. (People v. Davis (1976), 65 Ill. 2d 157, 357 N.E.2d 792.) The previous Davis case held that a judge could take judicial notice of a prior conviction, at least where the defendant did not deny that he was the person previously convicted. The court has now gone beyond this. Not only must some objection be made by a defendant, but apparently some evidence must be introduced to rebut the presumption.

We are not unaware of the factors distinguishing this case from the latest Davis opinion: Here, the prior conviction had to be proved beyond a reasonable doubt, there it did not; here, a challenge to the State’s proof was timely made, there it was not. However, the presumption announced by the supreme court remains unaffected by these differences.

Nor are we unmindful of the hazards of using presumptions in criminal cases. (See People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151 (dealing with the presumption that one in exclusive possession of recently stolen property obtained them by burglary and noting the due process problems inherent therein).) We interpret Hayes as holding that a prior conviction is no longer an element of the offense of felony theft under section 16 — 1(e)(1)—only a factor to be considered in sentencing. Therefore, we do not hesitate to apply the presumption in this case.

Affirmed.

GREEN, J., concurs.

JUSTICE MILLER,

specially concurring:

The majority finds that identity of name is circumstantial evidence of identity of person, sufficient alone on the question of identification to sustain the defendant’s conviction. I agree with the result reached by the majority, but for a different reason.

Questions of identity, presumptions, and inferences have presented problems for the courts for some time, most notably in sentencing when proof of an earlier conviction is used to enhance the penalty for an offense and in the application of presumptions and inferences to prove an element of an offense. In People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, our supreme court, reexamining its earlier decisions on presumptions and inferences in criminal cases in light of decisions by the United States Supreme Court, held that due process requirements are satisfied when (1) the facts proved and the fact presumed are rationally connected, (2) the presumed fact is more likely than not to flow from the proved fact, and (3) the inference is supported by corroborating evidence of guilt. The court further held, however, that when the permissive inference is unsupported by corroborating evidence, the leap from the proved fact to the presumed element must satisfy the standard of proof beyond a reasonable doubt, for there is nothing else on which to rest the fact finder’s verdict of guilt. 84 Ill. 2d 415, 421, 420 N.E.2d 151, 154; see also People v. Johnson (1981), 96 Ill. App. 3d 1123, 422 N.E.2d 19 (discussing Housby).

Although Housby and Johnson dealt specifically with inferences used to prove an element of the offense of burglary, I see no reason not to apply the same principles to an inference that tends to prove the identity, and therefore the guilt, of the offender.

Because circumstantial evidence permits a fact tending to prove guilt or innocence to be inferred from facts in evidence, the majority holds in effect that identity of person, and therefore the defendant’s guilt, may be inferred from identity of name without corroborating evidence. Because under Housby an element inferred from a fact without corroborating evidence must follow beyond a reasonable doubt, I cannot subscribe to the position advanced by the majority. In my opinion, in proving the guilt of a defendant, identity of person cannot be inferred beyond a reasonable doubt from mere identity of name; corroborating evidence is required.

Instead, I believe that under the circumstances here identity of name creates an inference of identity of person that, taken with the defendant’s failure to appear at trial, permitted the jury to conclude the identification, and therefore the guilt, of the defendant. Flight from the scene of a crime may constitute evidence of consciousness of guilt and therefore an inculpatory admission by a defendant. I believe that a defendant’s failure to appear at his own trial may be construed similarly; that admission, when coupled with the inference of identity of person from identity of name, supports the jury’s finding of guilt here.

I am mindful that the supreme court in People v. Davis (1983), 95 Ill. 2d 1, 447 N.E.2d 353, adopted the general rule that identity of name gives rise to a rebuttable presumption of identity of person. That rule has been applied in the current case in affirming the sentence imposed on the defendant, and I would not disturb that decision. But because of the due process problems expressed by our supreme court in Housby and by the United States Supreme Court in County Court v. Allen (1979), 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213, I would confine the rule to sentencing proceedings, even though it was necessary to prove the prior murder convictions in Davis beyond a reasonable doubt and not, as the majority implies, by the preponderance of the evidence.

Because the defendant was tried in absentia, the problem presented in this case is unique. I mention, however, that the problem could have been avoided had the prosecutor simply asked the officer whether the Gerald Stanley that was identified from the photograph as having confessed to him was the same Gerald Stanley that was arrested and charged.

I would affirm the conviction and sentence, but for the reasons I. have indicated.


author: JUSTICE GREEN

text:
      In re APPLICATION OF CLARK COUNTY COLLECTOR—(Board of Review for Clark County, Petitioner-Appellee, v. Glen Applegate et al., Objectors—(Virgil Arney et al., Objectors-Appellants)).
    Fourth District
    No. 4—82—0783
    Opinion filed July 14, 1983.
    William J. Warmoth, of Brainard, Bower & Kramer, of Charleston, for appellants.
    David W. Lewis, State’s Attorney, of Marshall (Robert J. Biderman and Michael W. Hogan, both of State’s Attorneys Appellate Service Commission, of counsel), for appellee.
    Danny J. Leifel, of Illinois Agricultural Association, of Bloomington, for amicus curiae.

   JUSTICE GREEN

delivered the opinion of the court:

This case arises from the proceedings of the Board of Review of Clark County (Board) on October 9, 1981, when it met, without notice, and raised by 8% the existing assessments of farm real estate owned by objectors Glen Applegate et al. Subsequently, after paying 8% of the taxes levied on those properties under protest, objectors filed objections in the circuit court of that county in response to the County Collector of Clark County’s application for judgment for delinquent taxes for the revenue year 1980. The Collector filed a motion for summary judgment contending the objectors had failed to exhaust their administrative remedies. The objectors filed a cross-motion for summary judgment maintaining that the Board acted improperly in raising the assessment and that 8% of the taxes levied against the farm properties were, accordingly, erroneously levied. The trial court allowed the Collector’s motion, denied that of the objectors, and entered judgment for the Collector on October 26, 1982.

Objectors Virgil Arney et al., have appealed. We have granted leave to the Illinois Agricultural Association (IAA) to file a brief amicus curiae. The parties agree that the properties in question all qualified as being a “farm” within the meaning of section 1(25) of the Revenue Act of 1939 (Act) (Ill. Rev. Stat. 1979, ch. 120, par. 482(25)) and subject to assessment under section 20e of the Act (Ill. Rev. Stat. 1979, ch. 120, par. 501e).

At all times pertinent, section 20e essentially provided that the farm value formula for arriving at the value of the best grade of farmland within the county should be determined by the Department of Local Government Affairs (whose duties have been transferred to the Department of Revenue by executive order (see Executive Order No. 3 (1979) preceding Ill. Rev. Stat. 1981, ch. 127, par. 1)), using the value per acre of agricultural products sold, the average value per acre of principal crops for the most recent three years, plus 10% of the average sale price per acre for the same three-year period. This section further provided that farmland of lesser value than that classified at the highest or best grade within the county should be valued for assessment purposes by local assessment officials on the basis of its productivity. See O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 265-66, 408 N.E.2d 204, 206.

Objectors assert that the increase in the assessment by 8% constituted the imposition of a multiplier or equalization factor in violation of sections 20e and 108a of the Act (Ill. Rev. Stat. 1979, ch. 120, pars. 501e, 589.1) and article IX, section 4 of the Illinois Constitution of 1970, thus, amounting to constructive fraud. They maintain that the exhaustion of remedies doctrine should not be applicable here because of their lack of notice of the Board’s actions. The IAA urges that exhaustion of administrative remedies should not be required under the circumstances here, where an objection is made to an allegedly illegal imposition of an equalizing factor or multiplier.

We share the concerns of the objectors and the IAA as to the problems that result from applying the exhaustion-of-remedies rule to the situation presented. In passing on this question, we need not rule upon the allegations by the objectors that the raising of the assessments constituted an illegal application of an equalizer, constituting constructive fraud. Rather, we deem the confusing nature of the applicable provisions of the Revenue Code and the procedures adopted by the Board to require that the objectors be permitted to prosecute objections to the Collector’s application for judgment.

In Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 326 N.E.2d 737, the supreme court overruled the doctrine set forth in Owens-Illinois Glass Co. v. McKibbin (1943), 385 Ill. 245, 52 N.E.2d 177, whereby a taxpayer was permitted to attack the imposition of illegal, unauthorized or invalid taxes by proceeding in court without exhausting administrative remedies under the Revenue Code. Then, in People ex rel. Boylan v. Illinois Central Gulf R.R. Co. (1978), 72 Ill. 2d 387, 381 N.E.2d 276, that court held that, without exhausting administrative remedies, a railroad company could pay its property taxes under protest and object to the collector’s application for judgment on the grounds that the assessment was not properly equalized by the department under section 80 of the Act (Ill. Rev. Stat. 1973, ch. 120, par. 561). The court adhered to the rule of People ex rel. Cain v. Illinois Central R.R. Co. (1965), 33 Ill. 2d 232, 210 N.E.2d 516, and prior cases in which a distinction was recognized between (1) objections to original assessments which required the expertise -of the department making administrative procedures necessary, and (2) objections to the application of an equalizing factor which was a mechanical procedure. The court also noted that the railroad had a valid concern about the adequacy of notice and time provisions which would be applicable by statute if administrative proceedings had to be exhausted.

In People v. Jennings (1954), 3 Ill. 2d 125, 119 N.E.2d 781, the failure of assessment officers to give proper notice of assessments of personal property was held to excuse objectors in court proceedings from the exhaustion of the administrative remedies requirement. (See also In re Application of County Treasurer (1977), 53 Ill. App. 3d 760, 368 N.E.2d 1127.) A similar failure may have occurred here. However, even if statutorily required notice was given, the procedure used in the context of the confusing legislation involved requires, in fairness, that objectors be allowed to proceed by objecting to the Collector’s application. Boylan.

The record before the court at the time of the hearing on the motion for summary judgment was substantially undisputed as to relevant events. On June 25, 1981, the Department of Revenue of the State of Illinois (Department) ordered the Board to reconvene “in extraordinary session for the purpose of further revising, correcting and equalizing the assessment of farm property.” The Board then held the October 9, 1981, meeting where the assessments were increased by 8% and caused the following notice to be published in various county papers on October 15, and October 21, 1981:

“FARM TAX REASSESSMENT
Take note that for the purpose of reviewing and correcting reassessments of farm property in Clark County, Illinois, the Clark County Board of Review shall reconvene in extraordinary session on the 23rd day of October, 1981, at 10 a.m. to 11 a.m. at the Clark County Courthouse, Marshall, Illinois, pursuant to Chapter 120, Section 623, of the Illinois Revised Statutes. At said time the Board of Review shall review, correct, return and certify such reassessment as ordered by the Illinois Department of Revenue.
Earl Kile, Clerk of Board of Review.”

None of the objectors appeared at the October 23 meeting and no correction or change was made to the assessments established at the October 9 meeting. The Board then certified and returned the assessments as increased. Taxes for the revenue year 1980 were then levied against objectors’ properties.

Section 140.02 of the Act (Ill. Rev. Stat. 1981, ch. 120, par. 621.02) was in force at all pertinent times. It directs the Department to review the assessments made in each county under section 20e and if the Department finds that the assessments are not being made according to the statutory directive, the Department may, in its discretion, order a reassessment or direct the Board of Review to reconvene “for the purpose of correcting assessments.” This section would appear to be the provision under which the Department intended to proceed. Notably, the Department’s order said nothing about a reassessment. Rather, it directed the Board to revise, correct and equalize.

Even if the Board had merely corrected the assessments, as apparently intended, it is unclear what the requirements for proper notice would have been. No provision of the Code states directly that it is applicable to board of review procedures under section 140.02. In O’Connor, the supreme court held that section 20e property was not subject to equalization by boards of review under section 108a of the Act (Ill. Rev. Stat. 1979, ch. 120, par. 589.1), but stated that such boards have “authority to increase or decrease assessments under section 108 of the [Act].” (81 Ill. 2d 260, 274, 408 N.E.2d 204, 210.) Thus, the provisions of section 108 of the Act (Ill. Rev. Stat. 1981, ch. 120, par. 589) would appear to be the appropriate section to follow if a board of review is merely correcting an assessment.

Subsections (4) and (5) of section 108 concern the power of boards of review to make changes in the assessed valuations of property. Subsection (4) states that “no assessment shall be increased until the person or corporation to be affected shall have been notified, and given an opportunity to be heard” except under circumstances not pertinent here. Subsection (5) permits boards of review to increase assessments of any class of property, but only after the owners of the property in question have been given 20 days notice by publication “of such proposed increase.” The notice given here neither notified any individual objector that his, hers or its assessment had been changed, nor did it give 20 days notice to the class of owners of farm property of the proposed increase.

Confusion is created by section 140 of the Act (Ill. Rev. Stat. 1981, ch. 120, par. 621), which appears under a heading called “REASSESSMENTS.” Interspersed in that section with the discussion of reassessments is the following statement:

“The Department may order at any time and from time to time the board of review of any county not having an elective board of assessors and an elective board of review to convene in extraordinary session for the purpose of further revising, correcting and equalizing the assessment of property within such county or any assessment district thereof.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 120, par. 621.)

The term “revising, correcting and equalizing” are the exact words of the Department’s order to the Board. Whether this provision is applicable to section 20e property is questionable because that type of property is not subject to equalization under section 108a. However, because the Department’s order contained the exact language of the section, the Board may well have concluded that the Department was to make and review a reassessment under the provisions of section 140.

The Department is authorized by section 140 to order reassessments by “local assessment officers,” a term which includes boards of review. (Ill. Rev. Stat. 1979, ch. 120, par. 482(4).) The persons making the reassessment are directed to give notice by publication that the reassessment has been made and of the date of any review of the reassessment. The publication must be at least five days before the review. That notice was given here but no notice was given before the reassessment was made. When notice is required before an increase in assessments is made, notice after the increase has been made has been held to be insufficient. People ex rel. Bracher v. Vail (1920), 296 Ill. 61, 129 N.E.494.

Section 141 of the Act (Ill. Rev. Stat. 1981, ch. 120, par. 622) states that “reassessments shall be made in the same manner and subject to the same laws and rules as an original assessment.” No direct statement is made as to the notice required to be given. As we have noted, section 108(4) requires boards of review to notify persons and entities affected before any assessment can be increased and requires 20 days’ notice by publication before the assessments of any class of property can be increased. Section 109 of the Act (Ill. Rev. Stat. 1981, ch. 120, par. 590) requires boards of review to publish a list of changes made in assessments within 30 days after its adjournment. If these provisions are the notice requirements of original assessments incorporated by analogy in section 141, no such notice was given to objectors.

Section 46 of the Act (Ill. Rev. Stat. 1981, ch. 120, par. 527) provides a procedure which might have been a logical one to have followed had the Department ordered a reassessment. It states that in counties of less than 1,000,000 in population, the supervisor of assessments, the board of assessors (not applicable here) or any township assessor may revise and correct assessments as shall appear just. Such a revision or assessment would be one by “local assessment officers” as required by section 140. Any change in assessment under section 46 requires the giving of notice in conformity -with section 103 of the Act (Ill. Rev. Stat. 1981, ch. 120, par. 584). Section 103 provides for notice by mailing and publication. The notice by mailing required there would have given objectors here fair notice of the change in their assessments.

Section 142 of the Act (Ill. Rev. Stat. 1981, ch. 120, par. 623), under which the Board decided to proceed in revising the assessment it had made, does provide for boards of review to meet to correct and review assessments “in the same manner and subject to the same laws and rules as an original assessment.” It requires a one-week notice by publication of such meeting. The notice appears to have complied with that section. However, the notice did not advise any particular property owner that the assessment of his properties had been changed.

We recognize the difficulties facing both the Department and the Board as well as other officials in working with the uncertainties of the provisions we have discussed. However, from the standpoint of the objectors, none of them ever received any notice that their assessments had been changed in any way. The only way that most of them could have found out about the change in their assessment would have been to inspect the appropriate records in the short time between the published notices and the meeting on October 23 and then they would have had to prepare to object at that meeting. The published notice did not state what assessments had been changed. As indicated in Boylan, fundamental fairness prohibits application of the exhaustion doctrine to the objectors. The summary judgment in favor of the Collector must be reversed.

Reviewing courts are most reluctant to reverse an order of a trial court denying a motion for summary judgment. We will not do so here. The assessments of the properties in question were not subject to an equalization imposed by the Board under section 108a (O’Connor). However, as stated in O’Connor:

“By exercising its authority under section 108 of the Revenue Act of 1939, the board of review can assure a degree of uniformity of assessment among the various grades of farmland assessed under section 20e according to its productivity without applying any percentage multiplier to an entire assessment district as it does under section 108a.” (81 Ill. 2d 260, 275, 408 N.E.2d 204, 210.)

We are unable to determine with certainty from the record presented whether the Board exceeded its authority merely because the Board raised each assessment by the same percentage.

The portion of the order on appeal granting summary judgment to the Collector is reversed. The portion of the order denying summary judgment to the objectors is affirmed. The case is remanded to the circuit court of Clark County for further proceedings.

Reversed in part, affirmed in part, remanded.

TRAPP and MILLER, JJ., concur.


author: JUSTICE MILLS

text:
    MIDKIFF IMPLEMENT COMPANY, Plaintiff-Appellant, v. GRACE E. WORRALL, Indiv. and as Adm’r of the Estate of Donald L. Worrall, Deceased, et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0838
    Opinion filed July 6, 1983.
    Robert H. Mehrhoff, of Carrollton, for appellant.
    G. Ronald Kesinger, of Jacksonville, pro se, for appellees Grace E. Worrall and Moss Auction Co.
    Richard T. Mitchell, of Mitchell & Woodruff, of Jacksonville, for appellee Elliott State Bank of Jacksonville.
   JUSTICE MILLS

delivered the opinion of the court:

Uniform Commercial Code.

Does “all *** farm machinery *** now owned” mean just that in a security agreement?

It does.

We affirm.

Donald Worrall, a Morgan County farmer, found himself beset by the same plight that has befallen many farmers today — he bought farm machinery which he was unable to pay for. In April of 1977, he purchased a New Holland Model 850 round hay baler from the Midkiff Implement Company. In June of the same year, he purchased a 770 W forage pickup, a New Holland Model 80 bale carrier, and a New Idea Model 404 hay rake from Midkiff. Worrall executed a retail installment contract with each purchase and security agreements covering the items were recorded in Greene County, where Midkiff’s business is located. Midkiff, however, failed to record its security interest in the items in Morgan County, where Worrall lived.

From time to time, Worrall and his wife, Grace, borrowed money from the First National Bank of Jacksonville, which subsequently merged with the Elliott State Bank of Jacksonville (the Bank). In April of 1979, Worrall and his wife executed a chattel mortgage (the security agreement) giving the Bank a security interest in certain collateral in order to secure their loans at the Bank. That security agreement contained the following description of collateral:

“First lien under the Uniform Commercial Code of Illinois on all machinery, equipment, including farm machinery and equipment, fixtures, inventory, crops growing or to be grown, livestock, accounts receivable and general intangibles now owned and hereafter acquired and all proceeds thereafter including but not limited to the attached Exhibit A.” (Emphasis added.)

The attached Exhibit A did not list the four items Worrall purchased from Midkiff. Within 10 days, the Bank filed a financing statement-containing the same description of collateral — in the Morgan County clerk’s office.

Worrall defaulted in his payments to Midkiff and then died in the summer of 1979. His widow was appointed administratrix of his estate. She hired attorney Ronald Kesinger and the Moss Auction Company to assist her in liquidating her husband’s estate. After the sale of the decedent’s farm machinery at public auction, both Midkiff and the Bank demanded the proceeds from the sale of the four disputed items: the hay baler, the forage pickup, the bale carrier, and the hay rake. Caught between the devil and the deep blue sea, the widow turned to her attorney for guidance. Kesinger advised Mrs. Worrall to pay the proceeds to the Bank, which she did.

Midkiff then filed a complaint in the circuit court of Morgan County against Mrs. Worrall (individually and as adminstratrix of her husband’s estate), Kesinger, the Moss Auction Company, and the Bank (collectively the defendants). The complaint alleged that the defendants had illegally appropriated the proceeds from the sale of the four disputed items. All of the parties — Midkiff and each of the defendants — filed motions for summary judgment. Judge Seator granted the defendants’ motions for summary judgment and Midkiff appeals.

We affirm.

On appeal, Midkiff admits that it failed to perfect its security interest in the four items by not filing a financing statement covering the items in Morgan County, the situs of debtor’s residence. Midkiff maintains, however, that although it failed to perfect its security interest, it did at least attach a security interest to the four items by entering into a security agreement with Worrall. We agree. Midkiff did attach a valid security interest to the four items.

Midkiff then argues that it should have priority over the Bank to the proceeds because it attached a security interest to the items and the Bank did not. Midkiff bases its argument on the position that although the Bank entered into a security agreement with Worrall and did perfect first by filing in Morgan County, the description of the collateral in the Bank’s security agreement — “all *** farm machinery and equipment *** now owned” — was too vague and therefore did not cover the four items. Here, we disagree. Although the collateral description in the Bank’s security agreement was very broad, it was sufficient to cover the four items. Consequently, the Bank did have priority over Midkiff to the proceeds of the sale because the Bank attached a valid security interest to the four items and then perfected that interest by filing a financing statement covering the items in Morgan County.

Although we note that the description “all *** farm machinery and equipment *** now owned” is a very broad one and that more careful practice may have dictated the use of a more exact description, we believe that such a description is sufficient. Section 9—203(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 9—203(1)) requires that the security agreement between a creditor and a debtor contain a description of the collateral. The standard for judging the adequacy of that description is set out in section 9-110 of the Code (Ill. Rev. Stat. 1981, ch. 26, par. 9— 110), which states in full:

“For the purposes of this Article [9] any description of personal property *** is sufficient whether or not it is specific if it reasonably identifies what is described.”

The Illinois Code Comment to section 9 — 110 states in part:

“The test is whether the description ‘reasonably identifies what is described,’ which it will do if it describes the property so as to distinguish it from any other property with which it might be confused.” (Ill. Ann. Stat., ch. 26, par. 9—110, Illinois Code Comment, at 85 (Smith-Hurd 1974).)

The Uniform Commercial Code Comment to section 9 — 110 states in part:

“The requirement of description of collateral *** is evidentiary. The test of sufficiency of a description laid down by this section is that the description do the job assigned to it — that it make possible the identification of the thing described.” (Ill. Ann. Stat., ch. 26, par. 9—110, Uniform Commercial Code Comment, at 88 (Smith-Hurd 1974).)

The Code’s “reasonable identification” test appears to us to allow very broad descriptions of collateral in security agreements.

Last year, this court in Interstate Steel Co. v. Ramm Manufacturing Corp. (1982), 108 Ill. App. 3d 404, 438 N.E.2d 1381, held that the security description “all accessories, parts and equipment” was sufficient to include all equipment used in the production of merchandise by the debtor. We also held that the description “merchandise” in the same security agreement was sufficient to cover the debtor’s inventory. In both instances we applied the “reasonable identification” test of section 9—110.

Our position, that section 9—110 allows very broad descriptions of collateral to be used in security agreements, is supported by the courts in the vast majority of jurisdictions. The Supreme Court of Minnesota in James Talcott, Inc. v. Franklin National Bank (1972), 292 Minn. 277, 286-88, 194 N.W.2d 775, 782, stated:

“The principal function of a description of the collateral in a security agreement is to enable the parties themselves or their successors in interest to identify it, particularly if the secured party has to repossess the collateral or reclaim it in a legal proceeding. ***
* * *
A security agreement should not be held unenforceable unless it is so ambiguous that its meaning cannot reasonably be construed from the language of the agreement itself.”

The court in James Talcott also stated:

“If the debtor himself is willing to give a creditor a security interest in everything he owns, the code does not prevent it, whether his action is prudent or not. Upon default, the creditor takes everything to which the debtor previously agreed; hence, identification is no problem.” 292 Minn. 277, 287, 194 N.W.2d 775, 782.

In National Cash Register Co. v. Firestone & Co. (1963), 346 Mass. 255, 257, 191 N.E.2d 471, 473, the court held that a security agreement covering “all contents of a luncheonette including equipment” was sufficient to include a cash register. In Empire Machinery Co. v. Union Rock & Materials Corp. (1978), 119 Ariz. 145, 147, 579 P.2d 1115, 1117, it was held that the description “all earth movers, blades, rollers, lay down machines” was sufficient to include irrigation equipment.

Not only does our broad reading of section 9 — 110 have the support of our brethren across the nation, but it is also supported by many of the commentators on the UCC. For example, White and Summers in their treatise Handbook of the Law Under the Uniform Commercial Code, at page 910-11 (2d ed. 1980) support allowing the use of broad descriptions in security agreements:

“The overwhelming majority of courts uphold very broad descriptions. Probably what is at work when courts condemn such descriptions is an unstated (and even unconscious) desire to protect debtors against dragnet clauses subjecting all or virtually all of their property to the claim of a single secured creditor. Such sweeping clauses reduce debtor opportunities to obtain credit from other sources. And they may bespeak creditor greed. Yet, courts that condemn such clauses are not on sound ground. The ability to monopolize collateral — and to have collateral monopolized — comports with freedom of contract.”

See also Beard, The Description of Collateral in Security Agreements and Financing Statements, 28 Mercer L. Rev. 611, 620 (1977); Sea-mans, Commercial Transactions: The Adequacy of the Description of Collateral in Uniform Commercial Code Financing Statements and Security Agreements, 27 Okla L. Rev. 469, 474 (1974); Phillips, Agricultural Financing Under the U.C.C., 12 Ariz. L. Rev. 391, 394 (1970).

In conclusion, it appears that the commentators along with the courts in the majority of jurisdictions agree with our position that a broad collateral description is sufficient for security agreement purposes.

Admittedly, the description in the case sub judice “all *** farm machinery and equipment *** now owned” is broad. But it covers exactly what it says it covers — all of Worrall’s farm machinery and equipment. There can be no argument that the hay baler, the forage pickup, the bale carrier, and the hay rake are pieces of farm machínery or equipment. Consequently, they are covered by the description of collateral in the security agreement; the Bank’s security agreement attached a security interest to those items; and the Bank achieved priority over Midkiff to the proceeds from the items’ sale by perfecting that interest.

Affirmed.

WEBBER, P.J., and MILLER, J., concur.


author: JUSTICE KARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT BETTS, Defendant-Appellant.
    Fifth District
    No. 82—507
    Opinion filed July 22, 1983.

      C. William Fechtig, of Carmi, for appellant.
    Anthony W. Dyhrkopp, State’s Attorney, of Shawneetown (Stephen E. Norris and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Robert Betts was convicted of murder and sentenced to 34 years’ imprisonment following a jury trial in the circuit court of Gallatin County. He appeals the conviction, arguing that the trial court improperly limited his cross-examination of two of the State’s witnesses, that the jury did not receive all four verdict forms and that he was not proved guilty beyond a reasonable doubt. We address only the first issue and reverse defendant’s conviction on that ground.

Hiram Gordon, the victim, died February 19, 1982, at Denton’s Tavern in Old Shawneetown, Illinois. Gordon was employed for over 15 years as a bouncer at the tavern and was working in that capacity on the night of his death. Defendant arrived at the tavern about 4 p.m. and remained there until the time of Gordon’s death, approximately 10:30 p.m. Defendant’s activities during the evening are difficult to discern from the witnesses’ testimony. It is clear that defendant drank heavily while at the tavern and he was described as drunk by several witnesses. Apparently defendant argued with some of the tavern’s employees and customers, although the testimony is in conflict concerning how the arguments started or who had possession of the various weapons mentioned by the witnesses.

Shortly before Gordon’s death, defendant went near the bar, either to retrieve a bottle of whiskey he had brought with him or to take the blackjack, a piece of pipe wrapped with tape, that was kept behind the bar. When Virgil Denton, owner of the tavern, attempted to stop defendant from going behind the bar, the two argued. According to Denton and several State witnesses, defendant hit Denton, knocking him to the floor. Defense witnesses testified, on the other hand, that Denton slipped and fell during the argument and that later he hit defendant on the shoulder with the blackjack. Defense witnesses also testified that as a result of Denton’s attack, defendant went wild, ripping his shirt off, grabbing pool cues and swinging them around the tavern. Denton sent Gordon to calm things down and to remove defendant from the premises. Moments later, Gordon staggered from a blow to the right side of his face and fell to the floor.

Four of the State’s witnesses, Ruth Moore, Goebal Moore, James Finley and Ann Hayes testified that they saw defendant strike Gordon with a broken pool cue. Three of the witnesses believed the blow was made with the pool cue held in a bunt-type fashion, while Hayes testified defendant hit Gordon in an over-the-shoulder swing. In an earlier statement given to police, Ruth Moore stated that she believed the blow was accidental because defendant was intoxicated and had probably intended to strike someone else.

For the defense, Barbara Ray testified that she saw defendant holding the cue in a bunt-type fashion, but she did not see him strike Gordon. She claimed that if defendant had struck Gordon, it would have been in the waist area. Tommy Ray, cousin of the defendant, saw the incident and testified that defendant did not hit Gordon.

Although efforts were made to revive Gordon, he never regained consciousness. He died of asphyxia caused by the regurgitation of food into the trachea while unconscious. A coroner’s death certificate was admitted at trial which noted that death was a consequence of a “recent felonious assault including trauma to right side of face,” a matter assigned as error, which we assume will not occur on retrial. See People v. Fiddler (1970), 45 Ill. 2d 181, 258 N.E.2d 359.

Defendant argues that his cross-examination of two of the State’s witnesses, Viola Moore and Virgil Denton, for the purpose of showing bias, interest or motive to testify was improperly limited by the trial court. He claims the court’s ruling was in violation of his sixth amendment right “to be confronted with the witnesses against him” (U. S. Const., amend. VI), which encompasses the right to effective cross-examination (Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105) and is applicable to State trial through the fourteenth amendment (Pointer v. Texas (1965), 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065).

During cross-examination of Viola Moore defense counsel asked “have there been any undue influences put upon you?” Moore replied that there had not, which prompted defense counsel to ask for a conference outside the presence of the jury. In an offer of proof counsel explained that Moore had been charged with theft on May 8, 1982. He stated that Moore’s bail was originally set at $2,500, but by agreement she was released on her own recognizance. He also noted that while Moore pleaded not guilty on May 19, no preliminary hearing had yet been set as of the date of defendant’s trial, August 12. There were also charges pending against Moore’s son, although the exact nature of those charges was not disclosed. Counsel argued that the jury should be allowed to consider this information and its effect upon Moore’s testimony. The court ruled that since the witness had already denied the existence of any agreement with the State, the examination would be limited to an inquiry whether any charges were pending against the witness.

Defense counsel attempted similar impeachment for the purpose of showing bias during the cross-examination of Virgil Denton. Den-ton admitted on direct examination that he had a previous conviction which resulted in a fine and probation. In chambers, defense counsel made the court aware that a petition to revoke the probation had been filed against Denton. The petition was set for hearing but had been continued as of the date of defendant’s trial. Counsel again argued that the witness’ testimony could be biased since the State had discretion to pursue the petition or allow Denton to maintain his probationary status. Counsel was especially concerned that the State may have encouraged Denton to influence some of the other testimony in the case because at least 14 of the witnesses were either employed by Denton or lived in rental property owned by Denton. The court refused to allow any inquiry on the subject.

Impeachment of a witness for the purpose of showing bias in testifying is an important function of the constitutionally protected right of cross-examination. The interest is satisfied when counsel is permitted to “expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska (1974), 415 U.S. 308, 318, 39 L. Ed. 2d 347, 355, 94 S. Ct. 1105, 1111; United States v. Vasilios (5th Cir. 1979), 598 F.2d 387, 389.

In reviewing the trial court’s rulings it is important to note that the constitutional requirement must be satisfied first and only then does the court have discretion to limit the scope or extent of cross-examination. (United States v. Vasilios (5th Cir. 1979), 598 F.2d 387; People v. Rufus (1982), 104 Ill. App. 3d 467, 432 N.E.2d 1089.) Even then the widest latitude is to be given a defendant to show bias. (People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526.) Defense counsel is not required to prove to the court that leniency has in fact been offered by the State before proceeding with his examination. (People v. Freeman (1981), 100 Ill. App. 3d 478, 426 N.E.2d 1220.) Further, it is irrelevant that the State denied the claim of leniency, and the pending charge need not be related to the instant case. People v. Kellas (1979), 72 Ill. App. 3d 445, 389 N.E.2d 1382.

On the other hand it has been held that where there is no showing that a witness has any expectation of leniency from the State, cross-examination would not tend to show bias or motive to testify. (People v. Snyder (1979), 72 Ill. App. 3d 82, 390 N.E.2d 598; People v. Martin (1978), 59 Ill. App. 3d 785, 376 N.E.2d 65.) In these cases the witness was examined in chambers and the court was satisfied that no agreement existed. In addition, in Snyder, the jury had been informed that the witness, an accomplice, was granted immunity in return for his testimony.

In view of these principles we believe the trial court improperly limited defendant’s cross-examination of Viola Moore and Virgil Denton. The jury should have been allowed to consider the fact that Moore’s bail had been eliminated and that as of the date of defendant’s trial no preliminary hearing had been set. We note that reduction in bail on a pending charge has been considered significant in attempting to show the bias of a witness. (People v. Freeman (1981), 100 Ill. App. 3d 478, 426 N.E.2d 1220.) To some extent, defense counsel’s decision to ask Moore directly if her testimony was influenced by a promise of leniency rather than to elicit the facts underlying a promise may have prompted the court’s ruling. While we do not encourage counsel’s approach we note that the court did not make an independent examination of Moore as was done in Snyder and Martin. The defendant is entitled to expose those facts which may affect the witness’ credibility and although counsel was allowed to ask whether any promises had been made it is error to prevent him from making a record from which to argue to the jury why promises may have been made. See Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105; People v. Freeman (1981), 100 Ill. App. 3d 478, 426 N.E.2d 1220.

The cross-examination of Virgil Denton was even more limited. In this case, defense counsel was cut off by State objection before completing his first question concerning pending charges. The witness was not asked by the court or counsel if an agreement had been made with the State. Although the State points out that Den-ton’s conviction and resulting probation were brought out on direct examination, the petition to revoke was never brought to the jury’s attention. Again, the jury should have been allowed to consider this information as it may have been persuaded by defense counsel’s argument that Denton influenced other testimony.

Neither do we find that the limitation of defendant’s cross-examination was harmless error. Wtien a Federal constitutional right is involved, the test is whether the error was harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) The question is whether there is a reasonable possibility thát the error contributed to the conviction, and the court must consider if there is other evidence which overwhelmingly supports the verdict and if the impeachment evidence was merely corroborative of other properly admitted evidence. People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526.

The evidence here did not overwhelmingly support a conviction for murder. First, the testimony concerning what occurred on the night of Gordon’s death was sharply divided between the State and defense witnesses. In such a case, the credibility of the witnesses becomes of utmost importance and any facts supporting an inference of bias may have affected the verdict. In particular, Viola Moore was an eyewitness to the incident and was the State’s key witness in describing the events of that night. There was also substantial evidence to support a verdict of the lesser charge of manslaughter. In short, we cannot say that had the jury been fully informed of the possible bias of the witnesses that the same verdict would have been reached.

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

Reversed and remanded.

KASSERMAN and JONES, JJ., concur.


author: JUSTICE KASSERMAN

text:
    JOHN WILSON, Father and Next Friend of Lynn Wilson, a Minor, Plaintiff-Appellee, v. COLLINSVILLE COMMUNITY UNIT SCHOOL DISTRICT NO. 10, Defendant-Appellant.
    Fifth District
    No. 83—213
    Opinion filed July 5, 1983.

      Dunham, Boman & Leskera, of Belleville (John W. Leskera and Russell K. Scott, of counsel), for appellant.
    Joseph R. Brown, Jr., of Mudge, Riley and Lucco, of Edwardsville, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant, Collinsville Community Unit School District No. 10, appeals from an order which permanently enjoined it from continuing disciplinary action against Lynn Wilson, a junior at Collinsville High School. In an order entered May 26, 1983, we reversed the trial court’s judgment, indicating that this opinion would follow.

On January 21, 1983, plaintiff, John Wilson, Lynn Wilson’s father and next friend, filed a motion for a temporary restraining order and a complaint for injunction. The complaint for injunction alleged, inter alia, that Miss Wilson was suspended from school on November 24, 1982, when school personnel observed her in possession of between 80 and 100 pills. Subsequent testing indicated that the pills contained caffeine. On December 2, 1982, an expulsion hearing took place and a few days later the Collinsville Board of Education approved the suspension of Miss Wilson and expelled her “ for the remainder of the 1982-1983 school year for gross misconduct.” In the complaint for injunction, plaintiff alleged that the disciplinary actions taken by the school board were “arbitrary, unreasonable, and excessive acts in light of the nature of the conduct of the minor and the prevailing regulations of the Defendant at the time of the conduct.”

On April 6, 1983, a hearing on the temporary restraining order was conducted. Mr. Wilson testified that his daughter had not been in trouble previously and he did not know why she had pills in her possession.

Dallas Harrell, an assistant superintendent for defendant, testified that he was the hearing officer assigned to Miss Wilson’s case and that it was his duty to investigate the matter for the school board. According to Mr. Harrell, when he questioned Miss Wilson she told him that the pills in her possession were to be delivered to other students and were for dieting. Miss Wilson further told Mr. Harrell that she was not selling the pills and that she did not know what caffeine was. Mr. Harrell stated that the student handbook’s prohibition against “unauthorized drugs” might include aspirin, Tylenol, or vitamin pills but that it was not his responsibility to make such a determination.

John Renfro, defendant’s school superintendent, testified that, based upon the evidence presented at Miss Wilson’s expulsion hearing, he recommended to the school board that Miss Wilson be expelled because he considered her conduct to be “serious” and “destructive.” Mr. Renfro indicated that generally when students are found either possessing or using “unauthorized drugs” they are immediately suspended and usually expelled. Mr. Renfro also stated that neither “drugs” nor “unauthorized” were defined in the student handbook.

The trial court granted the temporary restraining order, stating that it thought that “the punishment far outweighs the crime.” The trial court further stated that it did not find the school board’s disciplinary action to be arbitrary or capricious but concluded that under the circumstances, including Miss Wilson’s good school record and the fact that the pills were not a controlled substance, Miss Wilson deserved another chance.

On February 4, 1983, the trial court reconvened for the purpose of determining whether the temporary restraining order should be made a permanent injunction. At this hearing, plaintiff requested that the trial court take judicial notice of the prior testimony presented at the hearing on the temporary restraining order, which the trial court did, and plaintiff then rested. Defendant, after arguing its motion to dismiss, then presented a number of witnesses.

Lynn Wilson, called as an adverse witness, admitted possession of the pills and testified that her possession of these pills was not for medicinal purposes.

Donna Rees, a forensic scientist with the Illinois Department of Law Enforcement, testified that the pills Miss Wilson possessed contained 65.4 milligrams of caffeine and 16.5 milligrams of ephedrine per tablet.

Randall Webber, the State Prevention Coordinator for the Illinois Dangerous Drugs Commission, testified that caffeine pills constituted a “look alike” drug and were readily available to teenagers in the schools. It was Mr. Webber’s opinion that the availability of “look alike” drugs in the school' constituted a danger because it constituted a physical threat to students and created an unhealthy drug-oriented atmosphere. Mr. Webber testified that within the past two years there have been six confirmed deaths related to “look alike” drugs containing caffeine.

Chris Carlton-Rankaitis, director of Project Oz, which is a drug education and prevention agency, also testified regarding the prevalence of “look alike” drugs in the schools. She indicated that the use of caffeine pills created a risk of overdoses and of psychological dependence.

Ron Ganschinietz, the principal of Collinsville High School, testified that he was familiar with the drug problem among the students. He related that he previously had been shot by a student under the influence of drugs. Mr. Ganschinietz was of the opinion that the presence of “look alike” drugs in school has a disruptive effect on the educational process. Mr. Ganschinietz testified that he recommended to the school board that Miss Wilson be expelled for the remainder of the school year because of her possession of the caffeine pills. Mr. Ganschinietz stated that the previous records of students are not considered in determining whether to expel a student for possession of drugs because of the seriousness of such conduct. He also indicated that the school determined what constituted “unauthorized drugs.”

On February 23, 1983, the trial court granted plaintiff’s request for an injunction. The order stated in part:

“That at the hearing on the Temporary Restraining Order on January 25, 1983, plaintiff raised the issue of the possible violation of due process due to vagueness of the Collinsville High School Student Handbook marked as Plaintiff’s Exhibit Number 2; that the Court does not reach the Constitutional issues in this cause.
* * *
That the Collinsville Community School District #10 abused its discretion and acted in an unreasonable manner in failing to give proper consideration to the prior good record of the student in question and acted in a manner far more severe than necessary to protect the other students in the school system when it expelled Lynn Wilson for the remainder of the 1982-83 school year.”

Defendant subsequently perfected this appeal.

Before we address defendant’s assertions on appeal, we note that plaintiff in his brief urges that the prohibition of “unauthorized drugs” as set forth in the Collinsville High School Student Handbook is unconstitutionally vague. The handbook containing the words complained of provides as follows:

“Problem: Possessing, transporting and using unauthorized drugs and marijuana on campus and the school buses.
Policy: The possession, transportation and use of unauthorized drugs and marijuana are prohibited on school property, at authorized activities and on the school buses.
Discipline: Students found possessing or using unauthorized drugs on school property, school bus, or at an approved school activity being held on non-school property, will be suspended for ten (10) days and referred to the Board of Education for a hearing and possible expulsion from school for the remainder of the school year, and any evidence will be immediately submitted to the local police authorities for possible prosecution.”

Defendant argues that “[a]lthough veiled references were made to claims of constitutional deprivation, no specific allegations were ever made against the Board’s action other than that it was arbitrary, unreasonable and capricious [and] the Board was never given the opportunity to formulate a response to the constitutional allegations.” Therefore, defendant concludes the issue was not raised in the trial court and cannot be raised here on appeal. We agree.

The record on appeal indicates that plaintiff’s arguments suggesting that the term “unauthorized drugs” was ambiguous were directed towards buttressing the plaintiff’s contention that the action of the school board in expelling Miss Wilson was “arbitrary, unreasonable, and excessive.” Contrary to the reference in the trial court’s injunction order of February 23, 1983, we find that plaintiff’s argument did not raise a constitutional question. Having failed to properly litigate the issue in the trial court, plaintiff cannot raise the issue on appeal. (See Brubaker v. Community Unit School District No. 16 (1977), 46 Ill. App. 3d 588, 590-91, 360 N.E.2d 1228, 1230.) Therefore, the sole issue before this court is whether the trial court erred in enjoining defendant’s expulsion of Miss Wilson when it determined that defendant’s action was unreasonable, an abuse of discretion, and an excessive punishment.

As stated in Donaldson v. Board of Education (1981), 98 Ill. App. 3d 438, 424 N.E.2d 737, the Illinois courts have held that a decision to suspend or expel a student will be reversed by a court of review only if it is arbitrary, unreasonable, capricious, or oppressive. As a guide to the application of this standard, the Donaldson court stated:

“School discipline is an area which courts enter with great hesitation and reluctance — and rightly so. School officials are trained and paid to determine what form of punishment best addresses a particular student’s transgressions. They are in a far better position than is a black-robed judge to decide what to do with a disobedient child at school.” 98 Ill. App. 3d 438, 439, 424 N.E.2d 737, 739.

Applying the rationale of Donaldson to the case at bar, we conclude that the trial court erred in issuing the injunction.

The possibility of expulsion due to the possession of drugs is set forth in the Collinsville High School Student Handbook and, according to the testimony presented in the trial court, is uniformly applied. We would further observe that the dissemination of drugs, whatever their legal status, to fellow students endangers the physical health of those students and need not be tolerated by the school board. Here, it is undisputed that Miss Wilson intended to give her classmates pills containing caffeine and ephedrine. The former is a stimulant and the latter a bronchial dilator. Whether or not these chemicals are controlled substances, their potential for causing harm is considerable and apparent. The possibility of an allergic reaction to such drug exists; and a student may take an overdose or improperly mix the drug with another, creating a harmful interaction effect. Additionally, as urged by defendant, the distribution of any form of pills, however harmless, in the restricted environment of a school would directly contribute to the creation of a drug-oriented atmosphere and could lead to a psychological dependence on the part of some students. We conclude that in light of the potentially serious consequences of Miss Wilson’s conduct, the school board was justified in its decision to expel her from school for one year.

Although the trial court found that the action of the board was neither arbitrary nor capricious, we are asked by plaintiff to affirm the trial court’s conclusion that Miss Wilson’s punishment was too harsh in light of the circumstances. Applying the standard of Donaldson, we find that the defendant’s actions were neither arbitrary, unreasonable, capricious nor oppressive; and we conclude, therefore, that Miss Wilson’s expulsion was not “an abuse of the especially broad discretion given school officials in making disciplinary decisions.” Donaldson v. Board of Education (1981), 98 Ill. App. 3d 438, 439, 424 N.E.2d 737, 739.

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

Reversed.

HARRISON, P.J., and JONES, J., concur.