author: JUSTICE BARRY JUSTICE STOUDER,

text:
    LISA WRIGHT, Plaintiff-Appellant, v. MR. QUICK, INC., Defendant-Appel-lee.
    Third District
    No. 3—83—0691
    Opinion filed October 17, 1984.
    Rehearing denied January 14, 1985.

      STOUDER, J., dissenting.
    Allen, Clark & Harn, Ltd., of Peoria, for appellant.
    Rex K. Linder and Phillip R. Meisinger, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The plaintiff, Lisa Wright, was seriously injured when she fell while walking across the parking lot of her employer, Great Eight, Inc. (hereafter the employer). Her employer operated a Mr. Quick restaurant pursuant to a franchise agreement with the defendant, Mr. Quick, Inc. The plaintiff brought suit against the defendant for negligence in maintaining the restaurant premises. When the trial court granted the defendant’s motion for summary judgment, the plaintiff brought the instant appeal.

The defendant leased the land and building for the Mr. Quick restaurant from persons not a party to this suit. In that lease, the defendant agreed to maintain the “exterior including drives and blacktop in good condition ***.” The defendant subsequently subleased the property and building to the employer. In that sublease, the original lease was incorporated into the sublease. A franchise agreement was also executed in which the employer agreed to keep and maintain the premises.

The defendant argued in its motion for summary judgment that it had no duty to the plaintiff as a matter of law following the execution of the sublease. The trial court granted the defendant’s motion for summary judgment.

The sole issue on appeal is whether the trial court erred in finding that, as a question of law, the defendant owed no duty to the plaintiff. The plaintiff asserts that the defendant did owe a duty based alternatively upon the defendant’s duty as the lessor of the premises and the defendant’s contractual agreements.

Generally, a lessor is not liable for injuries to a lessee or others which occur on premises wholly leased to and under the control of the lessee. (Gilbreath v. Greenwalt (1980), 88 Ill. App. 3d 308, 410 N.E.2d 539.) One exception to this general rule is where a lessor contracts to keep the property in repair. (Restatement (Second) of Torts sec. 357 (1965); Dial v. Mihalic (1982), 107 Ill. App. 3d 855, 438 N.E.2d 546.) The lessor’s duty under this exception is a tort duty which extends to persons on the land with the consent of the lessee even though they are not parties to the contract. 107 Ill. App. 3d 855, 861, 438 N.E.2d 546, 551.

In the instant case, the defendant contracted in the original lease to maintain the exterior of the premises. This lease was incorporated into the sublease between the defendant and the employer. We find that based upon these contractual agreements, the defendant took on the duty to maintain the premises it leased and then sublet. As lessor of the premises, the defendant owed a tort duty to maintain the premises in good repair to the plaintiff, who was on the premises with the employer’s permission.

The defendant argues that the provision in the franchise agreement wherein the employer agreed to maintain the premises eliminated any duty on its part. It may be true that the employer also assumed a duty to maintain and repair. However, it does not follow that the assumption of the duty by the employer destroys any duty of the defendant. If the employer had a duty to maintain, it existed simultaneously with the separate duty of the defendant.

The defendant also argues that the providing of adequate lighting does not fall within the meaning of the contractual promise. This, however, is a question of fact. The only question before this court is whether the defendant owed a duty to the plaintiff. The scope of that duty and whether that duty was breached are questions for a trier of fact.

Because we find that the defendant owed a duty to the plaintiff based upon the common law duty of lessors, we do not consider whether a duty also arose based solely upon the contracts.

Accordingly, the judgment of the circuit court of Tazewell County is reversed and the cause remanded for further proceedings consistent with this decision.

Reversed and remanded.

SCOTT, J., concurs.

JUSTICE STOUDER,

dissenting:

I respectfully disagree with the reasoning and result reached by my colleagues. In my opinion, the defendant, Mr. Quick, Inc., owed no duty to the plaintiff, Lisa Wright, based upon the common law duty of lessors or upon any other theory.

The majority has chosen to reverse the trial court’s decision on the basis of an exception to the general rule that a lessor is not liable for injuries to a lessee or others which occur on premises wholly leased to and under the control of the lessee. (See Gilbreath v. Greenwalt (1980), 88 Ill. App. 3d 308, 410 N.E.2d 539.) The majority correctly states this rule, which is determinative of the issue sub justice. The relation created by a sublease is for all general purposes the relation of lessor and lessee and the rights, duties, and liabilities between a sublessor and a sublessee are determined by the general rules governing the rights, duties, and liabilities between a lessor and a lessee. (See 49 Am. Jur. 2d Landlord & Tenant sec. 503.) Here, the premises were wholly leased to and under the control of the sublessee, Great Eight, Inc. Under the general rule, Great Eight, Inc., owed a duty to the plaintiff and no such duty remained with Mr. Quick, Inc. Where a lease is commercial in nature there is an even greater reason to hold the party in possession and control of the premises liable for any injuries sustained on the premises.

The majority incorrectly holds that Mr. Quick, Inc., owed a duty to the plaintiff by determining that the circumstances of this case fall ■within the scope of one of the exceptions to the general rule, to wit, “where the lessor contracts with the lessee to keep the property in repair.” The majority relies on the fact that Mr. Quick, Inc., as lessee in the original lease, contracted with the lessor to maintain the parking lot. The fallacy with this holding is that at the time of the execution of the original lease, Mr. Quick, Inc., was contracting as a lessee, not as a lessor. In order for Mr. Quick, Inc., to owe a duty to the plaintiff within this exception, the contract would have had to have been executed with the sublessee, Great Eight, Inc. Since it is not, the exception is inapplicable.

Additionally, the annexation of the original lease to the sublease means the sublessee agreed to assume the lessee’s covenants in the original lease. Covenants in an original lease have been enforced against a sublessee in cases where it has been adequately shown the sublessee either expressly assumed them, agreed to abide by and comply with such covenants, or had actual knowledge thereof. (See Annot., 24 A.L.R.2d 707, 708 (1952).) The sublease here states the sublessee agreed to abide by and be bound by the terms and conditions of the original lease. Therefore, the sublessee assumed the risk of liability to others, and under the circumstances of the present case is the sole party which owed a duty to the plaintiff.

Further, sublessee’s covenant to abide by and be bound by the terms and conditions of the original lease is qualified to the extent that the terms of the original lease are changed and modified by the sublease. There is an additional provision in the sublease which states, “The sublessee will comply with all of the terms and conditions and provisions of the store franchise agreement which exists between the parties. If the said franchise agreement between the. parties is terminated for any reason then this sublease shall be terminated as of the same date.” This language incorporates the franchise agreement into the sublease. The franchise agreement states the sublessee, Great Eight, Inc., shall maintain the parking lot. Again for this reason it is Great Eight, Inc., which owed a duty to the plaintiff, while Mr. Quick, Inc., did not.

Additionally, it has been held that a contract executed contemporaneously with a sublease becomes part of the sublease. (Meridian Amusement Co. v. Home Theater Co. (1919), 215 Ill. App. 479.) Here, the sublease and the franchise agreement were executed on the same date. The contemporaneous execution of these documents incorporated the franchise agreement into the sublease, and again for this reason Great Eight, Inc., is the party which solely owed a duty to the plaintiff.

Based upon my analysis of the law applicable to the facts presented in this case, I would affirm the decision of the trial court granting Mr. Quick, Inc.’s, motion for summary judgment.


source: Caselaw Access Project

author: JUSTICE GREEN PRESIDING JUSTICE MILLS,

license: Public Domain

text:
    ROBERT B. BARTLEY, Plaintiff-Appellant, v. UNIVERSITY ASPHALT CO., INC., et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0191
    Opinion filed November 30, 1984.
    Rehearing denied January 16, 1985.
    MILLS, P.J., dissenting.
    John H. Otto and Michael A. Owens, both of Zimmerly, Gadau, Stout, Selin & Otto, of Champaign, for appellant.
    Michael O’Hara, of Springfield, for appellee International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Local Union No. 26.
    D. Cameron Dobbins, of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for other appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On April 11, 1983, plaintiff, Robert B. Bartley, brought the instant suit in the circuit court of Champaign County. He charged defendant, University Asphalt Co., Inc. (University), with the tort of retaliatory discharge and defendant, International Brotherhood of Teamsters, etc., Local Union No. 26 (Teamsters), with a civil conspiracy in pursuance of the retaliatory discharge. Upon motions of the two defendants, the circuit court granted summary judgments in favor of Teamsters on November 14, 1983, and in favor of University on February 8, 1984. Plaintiff has appealed both judgments. We conclude that the record before the court at the time of the entry of the judgments did not negate the existence of all material factual questions as to the case against either defendant. Accordingly, we reverse and remand for further proceedings.

Viewed most favorably to plaintiff, the underlying facts shown by the record presented in support of the summary judgments may be stated concisely. During an undetermined time in 1979, Bartley cooperated in a Federal Bureau of Investigation (FBI) effort which was probing allegations of bribery between the two defendants in this case. His cooperation included wearing a wireless microphone through which various conversations were recorded by the FBI. At one point he was warned by the superintendent of University that “things could be hard” on employees who cooperated in the investigation no matter how it turned out. Two years later, Bartley was discharged by University.

The reason given by University for the discharge was that Bartley had refused to haul a load of asphalt as directed by his foreman. On that day, he had already worked eight hours, his wife had called his place of work and information had been given to Bartley that she needed to go to a hospital, and there were no more available loads of asphalt for him to haul despite his instructions to the contrary.

Bartley filed a grievance through the Teamsters’ local. According to Bartley’s affidavit, the representative of his union serving as his advocate at his grievance hearing advised him not to tell his side of the dispute with University to the grievance committee and, apparently, he did not do so. The grievance was denied. He appealed to the joint committee which Teamsters’ collective bargaining committee had established as an arbitral body. That committee upheld the discharge.

The standard of review when dealing with cases decided by summary judgment is clear. As stated by our supreme court in Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500:

“[I]f what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered. [Citations.] More specifically, it has been held that an affidavit in support of a motion for summary judgment is actually a substitute for testimony taken in open court and should contain as much pertinent information as the affiant could competently testify to if he were sworn as a witness, [citation] and where such well alleged facts are not contradicted by counteraffidavit, they must be taken as true, notwithstanding the existence of contrary averments in the adverse party’s pleadings which merely purport to establish bona fide issues of fact. [Citations.]”

The tort of retaliatory discharge was first recognized in this state in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, where an employee had been discharged in retaliation for filing a worker’s compensation claim. In Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876, the tort was held to cover discharges in retaliation for participation by the employee in investigation by law enforcement authorities of criminal activities by coworkers. The theory adopted is that the discharge is tortious if it contravenes an important public policy. Recently, the supreme court has held that the tort includes discharge of workers subject to collective bargaining agreements as well as to those who are employees at will. (Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 473 N.E.2d 1280.) If supported by the facts, the remedy is appropriate to the allegations here.

We conclude that plaintiff’s allegations against University of retaliatory discharge are sufficiently supported by the record to present a question for a trier of fact. Although two years had elapsed between plaintiff’s cooperation with the FBI and his discharge, a trier of fact could reasonably infer from evidence favorable to plaintiff that University’s stated reason that plaintiff was fired for disobedience was pretext, and he was actually fired for his work with the FBI. That inference would arise from the combination of the asserted threats by University that those who aided the FBI would receive retaliation, and the highly mitigating circumstances which, according to plaintiff, accompanied his refusal to haul the load of asphalt. If in fact there was no asphalt available to transport, that fact would be highly probative that defendant's discharge was retaliatory.

The situation presented here differs materially from that in Cunningham v. Addressograph Multigraph Corp. (1980), 87 Ill. App. 3d 396, 409 N.E.2d 89. There, an employee contended that he was discharged because his employer anticipated he would file a worker’s compensation claim. The reason stated by the employer for the discharge was that the employee had failed to follow a well-established rule of telephoning his supervisor when he was unable to come to work. A summary judgment in favor of the employer was affirmed. We do not interpret Cunningham to hold that the existence of a valid reason for the employer to discharge precludes proof that other reasons might, have been the actual cause. There, the employee’s failure to comply with the employer’s order was not shown to have been accompanied by the unusual circumstances asserted by plaintiff here. There, the employer merely might have anticipated that the employee would file a worker’s compensation claim. Here, plaintiff had actually aided the FBI. There, the record contained no indication of threat by the employer. Here, a person holding supervisory authority over plaintiff had assertedly threatened retaliation for aid to the FBI.

After the instant case was filed, both defendants petitioned for removal to the Federal court on grounds of Federal preemption. The case was removed but soon remanded. Inherently, the district court found that the tort recognized by the State was not preempted by a Federal contractual scheme. That court thus concluded that a Federal question was not presented. University asserts that any cause of action alleged against it has been preempted by Federal law. However, the decision of the Federal court to remand the case to the circuit court decided that question against University.

The defendant Teamsters are charged with a civil conspiracy. That involves either the accomplishment of a lawful result by unlawful means or an unlawful result by lawful means (Panorama of Homes, Inc. v. Catholic Foreign Mission Society, Inc. (1980), 84 Ill. App. 3d 142, 404 N.E.2d 1104). Since we have held that a factual question was presented as to whether University acted unlawfully in discharging plaintiff, a factual question would also be presented as to whether the Teamsters were liable if a factual question was presented that they conspired to create an unlawful discharge of plaintiff. That factual question was raised by the inference a trier of fact could attach to the evidence that the Teamster representative assigned to serve as advocate for plaintiff prevented plaintiff from presenting his side of the case. We conclude that a question of fact as to whether the Teamsters were liable to plaintiff was also presented by the record.

As with University’s contention that plaintiff’s cause of action was preempted by Federal law, that same contention by the Teamsters is decided adversely to them by the decision of the Federal court remanding the case to the State court.

The decision of the Federal court that no Federal question was presented also preempts the Teamsters’ claim that Federal law preempts the cause of action asserted against it for conspiracy.

Accordingly, we hold that the circuit court erred in granting the summary judgments. Those judgments are reversed, and the cause is remanded to the circuit court of Champaign County for further proceedings.

Reversed and remanded.

MILLER, J., concurs.

PRESIDING JUSTICE MILLS,

dissenting:

I am simply unwilling to force an employer to weigh the costs of a lawsuit when coming to its decision to discharge an employee who admittedly refuses to follow the commands of a superior.

Employer here filed an affidavit in support of its motion for summary judgment which recited that the employee was discharged because he refused to follow the orders of an immediate superior. Plaintiff unabashedly agrees that he refused, but offers up various excuses which, in his opinion, should excuse his refusal. He then recalls a two-year-old matter which he feels was the real reason for his discharge.

This scenario parallels the facts in Cunningham v. Addressograph Multigraph Corp. (1980), 87 Ill. App. 3d 396, 409 N.E.2d 89. There, we found that one factor favoring the granting of summary judgment for a defendant employer was the employee’s admission that he had violated a company policy, which violation had precipitated his discharge. The majority seeks to distinguish Cunningham in that the company policy there was written and well known.

In my view, it begs credulity to imagine that the policy of obeying the commands of superiors is not well known to anyone who has ever been in the work force as a lower-level employee. Further, it begs common knowledge of the everyday operations of businesses to imagine that such a policy would not ordinarily be enforced if it were not committed to writing.

The second factor cited by us in Cunningham was that an employee is incompetent to aver the motivation behind his discharge, absent a specific admission concerning the motivation by the employer. Here, the majority would hold that the employee’s alleged cooperation with law enforcement authorities two years before his discharge automatically raises the possibility that his eventual discharge was retaliatory.

The practical result — which I note was foreseen by Justice Underwood in his dissent from the majority in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 190, 384 N.E.2d 353, 361 (Underwood, J., dissenting) — is that the employee has, by virtue of his alleged cooperation with authorities, become virtually “fireproof” in that he may not be dismissed by the company without the threat of a lawsuit and the concomitant costs and dead weight loss of resources.

I dissent.


author: JUSTICE UNVERZAGT

text:
    ROBERT J. TUCEK, Plaintiff-Appellant, v. THOMAS W. GRANT, Defendant-Appellee.
    Second District
    No. 83—958
    Opinion filed December 10, 1984.
    John S. Biallas, of Neri & Hochberg, of St. Charles, for appellant.
    John R. Williamson and D. Kendall Griffith, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, Robert J. Tucek, sued the defendant, attorney Thomas W. Grant, for legal malpractice in the circuit court of Kane County. His complaint was dismissed with prejudice by the trial court for the reasons that the complaint was barred by the statute of limitations and failed to state a cause of action.

Plaintiff appeals, contending (1) that he has stated a cause of action for legal malpractice; and (2) that his complaint was filed timely under the provisions of section 13 — 215 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 215).

On March 29, 1983, the plaintiff filed a one-count complaint for legal malpractice against the defendant, attorney Thomas W. Grant. According to the allegations of the plaintiff’s complaint, the plaintiff entered into an oral contract with the defendant, a licensed attorney, on or about August 2, 1976; Tucek retained attorney Grant to represent him in the purchase of certain real estate and in annexing the property to the city of Sandwich (city). Sometime after August 9, 1976, the plaintiff directed attorney Grant to prepare a document titled “Articles of Agreement for Warranty Deed” in connection with the purchase of the real estate; at that time, Tucek instructed attorney Grant to include in that agreement a clause making the purchase of the property contingent upon its being annexed to the city in conformity with the “Contract to Purchase.”

During the last week of August, the plaintiff reviewed the articles of agreement that attorney Grant had drafted. Tucek told attorney Grant that certain changes needed to be made in the document, specifically informing the attorney that the agreement was not acceptable because it did not contain the suggested contingency clause making the sale of the property dependent upon its annexation to the city.

Attorney Grant subsequently gave the plaintiff a letter, dated August 27, 1976, that the Sandwich city attorney directed to the sellers; the letter stated that the Sandwich city council orally agreed to annex the property in question to the city upon the filing of a proper petition for annexation. Attorney Grant informed the plaintiff that the letter eliminated the need for a contingency clause in the proposed articles of agreement. Relying upon the advice of attorney Grant, plaintiff Tucek executed the articles of agreement on October 13, 1976. Thereafter, the plaintiff made payments to the sellers in the sum of $40,000 and expended more than $14,000 in preparing the property for annexation to the city.

From July 1978 to June 1980, attorney Grant represented the plaintiff before the city council in an effort to have the subject real estate annexed to the city; the plaintiff received a bill from the defendant for more than $2,800 in attorney fees for the services Grant performed in this matter. In July of 1980, the city council denied the plaintiff’s request for annexation.

After the city denied the petition for annexation, the sellers, who had orally admitted that the sale of the property was contingent upon annexation, did not return the plaintiff’s money or voluntarily rescind the articles of agreement. In July of 1980, attorney Grant represented to the plaintiff that the articles of agreement could be attacked in a suit in equity for rescission or reformation of the articles of agreement. In the meantime, the sellers declared a forfeiture and demanded immediate possession of the realty, but attorney Grant raised no defense to the forfeiture in a court of law. Although the plaintiff made numerous phone calls and personal requests to the defendant, Grant failed or refused to file a lawsuit against the sellers for rescission or reformation.

In September 1981, attorney Grant referred the plaintiff to another attorney, Richard Horwitz of Aurora, Kane County, for the purpose of pursuing an alleged cause of action against the city of Sandwich. When the plaintiff met with attorney Horwitz, he informed plaintiff Tucek (1) that attorney Grant had represented the sellers and charged them for his services in drafting both versions of the articles, of agreement, and (2) that attorney Grant was representing the sellers, not plaintiff Tucek, when he advised Tucek that the letter from the Sandwich city attorney was sufficient to protect him in the transaction. This was the first time the plaintiff was aware of these matters. In addition, plaintiff Tucek learned for the first time in September 1981 that attorney Grant failed or refused to institute suit against the sellers because he allegedly represented them in the transaction from which the cause of action arose.

The complaint set forth the following specific careless, negligent, or fraudulent acts or omissions of the defendant: (1) failed to draft properly the second articles of agreement so that it would protect the plaintiff’s interests and intentions; (2) failed to disclose to Tucek that he represented the sellers during the real estate transaction; (3) represented the sellers in direct conflict with the interests of and to the detriment of the plaintiff; (4) failed or refused to file pleadings for rescission or reformation of the contract "with the sellers; (5) fraudulently concealed from the plaintiff his actual relationship with the sellers; (6) failed to inform the plaintiff of his past dealings, thereby depriving the plaintiff of an informed choice regarding whether to continue to retain the defendant; (7) failed to enter into an annexation agreement with the city prior to the execution of the articles of agreement in order to preclude future disputes relative to that matter; and (8) advised plaintiff that the letter from the city’s attorney to the sellers was legally sufficient to ensure annexation of the subject property.

Attorney Grant, the defendant, filed a motion to dismiss the complaint pursuant to section 2 — 619(5) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1983, ch. 110, par. 2-619(5)), in which he alleged that the plaintiff’s cause of action was barred by the five-year statute of limitations of section 13 — 205 of the Code (Ill. Rev. Stat. 1983, ch. 110, par.13-205).

On September 29, 1983, the court granted the motion to dismiss and dismissed the complaint with prejudice. The trial court set forth its reasoning in a letter of opinion. First, the court found that the plaintiff was or should have been aware on or before October 13, 1976, that the contingency clause did not exist. Therefore, the plaintiff’s cause of action arose on or about that time and, therefore, the five-year statute of limitations commenced at that time. Secondly, the court determined that the alleged conflict of interest did not constitute fraudulent concealment of the plaintiff’s cause of action, “thereby invoking the discovery rule, assuming said rule is applicable in this case.” Lastly, the court held that the conflict of interest alleged in the complaint did not set forth a cause of action for legal malpractice. The issues we review are as follows: (1) Is the plaintiff’s cause of action barred by section 13 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 205)? (2) Does the plaintiff’s complaint state a cause of action for legal malpractice?

Because the appeal is before this court pursuant to the defendant’s motion to dismiss, the well-pleaded factual allegations of the complaint, as we have summarized them, must be accepted as true. Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 383.

In this court Tucek adopts the position that attorney Grant breached his duty of loyalty to the plaintiff in August 1976, when he retained Grant to provide legal services in a real estate transaction and attorney Grant did not disclose to him that he represented the sellers in the same transaction in direct conflict with the plaintiff’s interests. In addition, the plaintiff concedes that he knew or should have known by October 13, 1976, that the contingency clause was not in the articles of agreement. Also, he admits that attorney Grant’s erroneous legal opinion — that the letter from the Sandwich city attorney sufficiently resolved the annexation question to make it unnecessary to include a contingency clause in the articles of agreement — occurred more than five years prior to the filing of the complaint. He concedes that because he became aware of these acts or omissions within the five-year period of limitations (see Ill. Rev. Stat. 1983, ch. 110, par. 13 — 205), any action based on them would be barred as untimely. He contends, however, that he has alleged a cause of action that is not barred by the statute of limitations, that is, the defendant’s violation of his duty of loyalty to the plaintiff by representing a conflicting interest without first disclosing this fact and obtaining the plaintiff’s approval of the dual representation. In this regard, the plaintiff maintains that because this cause of action was fraudulently concealed from him, his complaint was filed in timely fashion under the provisions of section 13 — 215 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 215).

Section 13 — 205 of the Code (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 205), formerly section 15 of “An Act in regard to limitations” (Ill. Rev. Stat. 1981, ch. 83, par. 16), states that “actions on unwritten contracts, *** and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.” (Emphasis added.) An action involving a claim of legal malpractice falls within the ambit of this five-year period. Dolce v. Gamberdino (1978), 60 Ill. App. 3d 124, 126.

The determination of when a cause of action accrues under section 13 — 205 is not an easy task, for the decisions of this State’s appellate court are in conflict. (See Bonanno v. Potthoff (N.D. Ill. 1981), 527 F. Supp. 561, 563-65. Compare Dolce v. Gamberdino (1978), 60 Ill. App. 3d 124, 126-29, and Maloney v. Graham (1912), 171 Ill. App. 409, 411, with Kohler v. Woollen, Brown & Hawkins (1973), 15 Ill. App. 3d 455, 459-60.) The split in authority on this point is widespread in other jurisdictions. See Annot., 18 A.L.R.3d 978, 988-1002 (1968), 99-104 (1984 Supp.).

One line of authority holds that a cause of action for legal malpractice arises at the time of the attorney’s alleged negligent act or breach of the duty to act skillfully and diligently in representing his or her client. (Dolce v. Gamberdino (1978), 60 Ill. App. 3d 124, 126-27; Maloney v. Graham (1912), 171 Ill. App. 409, 411.) By contrast, other cases have determined that “a cause of action for legal malpractice does not accrue until the client discovers, or should discover, the factors establishing the elements of his cause of action.” Kohler v. Woollen, Brown & Hawkins (1973), 15 Ill. App. 3d 455, 460; accord, Bonanno v. Potthoff (N.D. Ill. 1981), 527 F. Supp. 561, 564.

The rationale employed and the results reached in both Kohler and Bonanno were predicated upon application of the “discovery rule.” This rule relating to the statute of limitations has been utilized broadly to mitigate the harsh effects of a literal application of the statute. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 414.) The effect of the discovery rule is to postpone the beginning of the five-year period of limitations until the injured party knows or reasonably should know of his or her injury and that it was caused wrongfully. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 414-15; McDaniel v. LaSalle Ambulance Service, Inc. (1982), 108 Ill. App. 3d 1042, 1045; Pollock v. Hafner (1982), 108 Ill. App. 3d 410, 413; see Kinsey v. Scott (1984), 124 Ill. App. 3d 329, 339.) The discovery rule is viewed as a determination of when the statute should begin to run, not as an extension of the period of time in which to file the cause of action. Coleman v. Hinsdale Emergency Medical Corp. (1982), 108 Ill. App. 3d 525, 532.

In Dolce v. Gamberdino (1978), 60 Ill. App. 3d 124, the court recognized the existence of the discovery rule, but determined that it will “be applied only when the discovery occurs after the statute of limitations has run or when discovery occurs at a time so near the running that the action, for all practical reasons, has been barred before a party has learned of the accrual” of the cause of action. (Dolce v. Gamberdino (1978), 60 Ill. App. 3d 124, 128; accord, Evans v. Bachman (1979), 78 Ill. App. 3d 1107, 1110; Tomes v. Chrysler Corp. (1978), 60 Ill. App. 3d 707, 710.) Other cases have expressly rejected this limited or restricted application of the discovery rule. (E.g., Knox College v. Celotex Corp. (1980), 85 Ill. App. 3d 714, 720, aff’d in part & rev’d in part on other grounds (1981), 88 Ill. 2d 407; E.J. Korvette v. Esko Roofing Co. (1976), 38 Ill. App. 3d 905, 909.) As the court in Bonanno v. Potthoff (N.D. 1981), 527 F. Supp. 561, 565, aptly noted, the view expressed in Dolce v. Gamberdino (1978), 60 Ill. App. 3d 124, “represents a sport in the law,” as it is in conflict with the weight of authority in this State.

For the reasons articulated in Bonanno v. Potthoff and in Kohler v. Woollen, Brown & Hawkins (1973), 15 Ill. App. 3d 455, we conclude that, when the discovery rule is applied in this case, the plaintiff’s cause of action for legal malpractice accrued in July 1980, when the plaintiff learned, for the first time, that the city council denied his request or petition for annexation. It was at this juncture that the plaintiff knew or reasonably should have known of his injury and that it was caused wrongfully as a result of the defendant’s earlier representation or opinion that a contingency clause was unnecessary in light of the city attorney’s letter stating that the city council would annex the property in issue. (See Kinsey v. Scott (1984), 124 Ill. App. 3d 329, 339-40.) The full five-year period of limitations began to run from this point. (Knox College v. Celotex Corp. (1980), 85 Ill. App. 3d 714, 720, aff'd in part and rev’d in part on other grounds (1981), 88 Ill. 2d 407.) Therefore, because the plaintiff’s suit was filed on March 29, 1983, he acted within the appropriate time limit as extended by the discovery rule.

The trial court erred when it found that the cause of action accrued on October 13, 1976, the day on which the plaintiff knew or reasonably should have known that the contingency clause was not in the articles of agreement. It is clear that the plaintiff did not know and could not reasonably have known of his alleged injury and that it was wrongfully caused by the defendant until the city council refused to annex the property.

The judgment of the circuit court of Kane County is reversed and the cause is remanded.

Reversed and remanded.

NASH, P.J., and HOPF, J., concur.


author: JUSTICE TRAPP PRESIDING JUSTICE MILLS,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK A. SLOAN, Defendant-Appellant.
    Fourth District
    No. 4—83—0561
    Opinion filed November 15, 1984.
    Rehearing denied January 8, 1985.

      MILLS, P.J., dissenting.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Following a jury trial, defendant Mark Sloan was convicted of murder and home invasion and sentenced to 40 years’ imprisonment. On appeal, defendant argues that: (1) the trial court erred in refusing his instructions on voluntary manslaughter and self-defense; (2) his conviction" must be reversed because no involuntary manslaughter instruction was tendered or given; and (3) the trial court abused its discretion in sentencing him without fully considering his potential for rehabilitation. In view of our disposition of the first issue, we need not address defendant’s other arguments.

At about 2 a.m. on January 13, 1983, defendant went to the home of his former girlfriend, Cynthia Johnson, armed with a sawed-off shotgun. After knocking on the door for 10 to 15 minutes, defendant forcibly entered the residence. Cynthia, her new boyfriend, Rick Wilson, her roommate, Wanda Johnson, and Cynthia and defendant’s baby were already inside. Wilson and defendant exchanged words, and then defendant shot and killed Wilson.

The week before the shooting, on January 7, defendant and Wilson fought at a party. Cynthia, Wanda, and defendant’s girlfriend, DeAnn Mottley, were also at the party. The witnesses gave different versions of the fight. Defendant maintains that Wilson and his friends ganged up on defendant, and either Wilson or his friend, Fitzgerald Clay, cut defendant on the arm with a knife. Cynthia testified that defendant and Wilson started to argue, and defendant took a swing at Wilson. Cynthia saw no more of the fight; however, she later determined Wilson had won. Mottley testified Wilson and his friends ganged up on the defendant, kicked him, and made him wet his pants. On the way home, she noticed a two- to three-inch cut on defendant’s arm. Later that evening, Wilson, his friends, Cynthia, and Wanda went to Mottley’s house looking for defendant. Wilson threatened to kill defendant with a gun.

On January 13, defendant asked Mottley if he could borrow her car to go to Cynthia’s home and check on his baby. He brought the sawed-off shotgun with him. At trial, defendant testified that he hid the gun under his coat and knocked on Cynthia’s door. After 10 to 15 minutes, he pushed the door open. He saw Wilson sitting in the bedroom and asked why Wilson and his friends had jumped defendant at the party. Wilson replied he would kill defendant the next time. Defendant stated he was not there to argue and started toward the other bedroom. Wilson then rushed at defendant, who turned and brought out the gun. As Wilson dared defendant to shoot, defendant stumbled, and the gun discharged.

Defendant also testified he was afraid of Wilson because Wilson had beaten and cut him. Defendant thought Wilson was going to attack him. He was scared and could not tell if Wilson had anything in his hands. The front room light was dimmed, and only the television was on in the bedroom. Defendant asserted he did not intend to shoot or kill Wilson. Defendant testified he brought the gun only to protect himself. He denied kicking in the door. He further denied threatening either Cynthia or Wanda.

According to Cynthia, defendant stated he had come to see his baby when he knocked on her door. Cynthia told Wilson to go into the bedroom and shut the door because she did not want a fight in her house. Cynthia took her baby and hid in Wanda’s room because she was scared. She then heard defendant kick down the door. Wilson and defendant began to argue about their previous fight. At one point, defendant stated, “Shut up, your time is going to come now.” Wilson continued to argue, and Cynthia heard a gunshot. Defendant then said, “Cynthia, put my baby down because you’re next. And Wanda, if you’re in there, I got a bullet for you too.” Cynthia entered the living room and saw defendant holding the gun. He fled, and she called the police.

Cynthia believed defendant had come just to see his baby. She also believed he did not know Wilson was present because Wilson’s car was not parked in front of her house. She stated she knew Wilson had carried a gun in the past, but he was unarmed that night.

Wanda’s testimony was almost identical to Cynthia’s. According to Wanda, defendant stated he wanted to see his baby as he knocked. She also heard defendant kick in the door. Wilson and defendant argued about their previous fight, and at one point, defendant told Wilson his time would come sooner or later. The argument continued until Wanda heard the shot. Defendant then threatened to kill both Wanda and Cynthia.

The police investigated and found the door casing lying on the floor and Wilson dead. They arrested defendant at Mottley’s house. At trial, the jury heard a tape-recording of defendant’s statement to police. Defendant stated four or five individuals jumped him at a party on January 7. He claimed either Wilson or Clay cut him with a knife. On January 13, defendant was thinking about the fight. He decided to go to Cynthia’s house to see if Wilson was there and to “take care of the problems.” After beating on Cynthia’s door, defendant pushed and it came open because it was already damaged. He saw Wilson and asked him what he was doing there. Wilson replied it was none of defendant’s business. Defendant then pulled out the gun and Wilson dared him to shoot. The two exchanged words until Wilson jumped up to rush at defendant, and defendant shot Wilson. Cynthia came out of the bedroom, and defendant asked her if the baby was all right. He then fled.

At the instructions conference, defendant tendered instructions on voluntary manslaughter and self-defense. The judge refused to give the jury either instruction. The judge reasoned that it would be preposterous to give the voluntary manslaughter instruction merely because the lighting was bad and defendant could not tell if Wilson was armed. The court also held Wilson was entitled to use deadly force to repel the tumultuous invasion of the residence. Defendant, therefore, had no right to assert self-defense in killing Wilson.

In homicide cases, if there is any evidence in the record which, if believed by the jury, would reduce a crime to manslaughter or support an affirmative defense, then instructions defining manslaughter and the defense should be given if requested. (People v. Bratcher (1976), 63 Ill. 2d 534, 540, 349 N.E.2d 31, 34; People v. Joyner (1972), 50 Ill. 2d 302, 306, 278 N.E.2d 756, 759.) Only very slight evidence on a given theory is required to entitle defendant to an instruction on that theory. People v. Cookson (1982), 108 Ill. App. 3d 861, 865, 439 N.E.2d 1033, 1036.

The State first contends defendant was precluded from asserting self-defense or voluntary manslaughter as a matter of law. The State asserts section 7 — 2 of the Criminal Code of 1961 allowed Wilson to use force against defendant. (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 2.) That section provides, in part:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry into or attack upon a dwelling.”

The State concludes defendant may not now assert self-defense in killing Wilson when Wilson justifiably used force.

The State cannot pretend Wilson was protecting the residence. Its own witnesses testified Wilson and defendant argued about their previous fight and not about defendant’s entry into the residence. According to the witnesses, Wilson never ordered defendant to leave, but instead stated defendant could see his child.

Moreover, defendant maintains he acted with a belief that Wilson was using deadly force. The State contends section 7 — 2 allowed Wilson to use deadly force. That section justifies a person’s use of deadly force to terminate another’s unlawful entry only if:

“(a) The entry is made or attempted in a violent, riotous, or tumultuous manner, and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to, him or another then in the dwelling.” Ill. Rev. Stat. 1981, ch. 38, par. 7 — 2(a).

While defendant concedes his entry was tumultuous, he asserts Wilson could not have reasonably believed deadly force was necessary. Defendant’s evidence revealed he entered merely to see his child, and Wilson knew of this purpose. According to defendant’s trial testimony, Wilson made the first offer of personal violence. Considering the conflicting testimony, the jury should have decided whether Wilson could have used deadly force. (People v. Stombaugh (1972), 52 Ill. 2d 130, 138, 284 N.E.2d 640, 644.) Instead, the trial court decided the issue when it refused to instruct the jury on self-defense.

The State complains that Wilson was unarmed; therefore, he could not have used deadly force. However, the defendant’s perception, rather than the actual peril, is dispositive of the self-defense and voluntary manslaughter claims. People v. Shipp (1977), 52 Ill. App. 3d 470, 476, 367 N.E.2d 966, 970.

The State also argues section 7 — 4 precludes defendant from asserting self-defense or voluntary manslaughter. (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 4.) Under that section, self-defense is not available to a person who: “(a) Is attempting to commit, committing, or escaping after the commission of, a forcible felony.” Besides murder, defendant was charged with and convicted of home invasion, a forcible felony, because he entered Cynthia’s dwelling when he knew someone was present, and he intentionally injured Wilson.

In People v. Moore (1983), 95 Ill. 2d 404, 447 N.E.2d 1327, defendant contended the refusal to instruct on voluntary manslaughter was error. The supreme court affirmed his conviction for felony murder, holding any error was harmless. Besides felony murder, the jury also found defendant guilty of armed robbery, a forcible felony. The court declared that even with a voluntary manslaughter instruction, the jury could not have convicted defendant of less than murder because they found defendant guilty of a forcible felony. Therefore, whether defendant killed the victim intentionally or knowingly but with an unreasonable belief that the killing was justified made no difference. 95 Ill. 2d 404, 411, 447 N.E.2d 1327, 1331.

Unlike Moore, defendant here was not charged with felony murder. He could, therefore, assert self-defense. Also, his conviction for the forcible felony rested upon the jury’s finding that he intentionally injured Wilson. Defendant’s self-defense claim, if believed by the jury, would not only protect him from the murder charge, but would also protect him from the forcible felony charge. Whether defendant killed Wilson with the belief that the killing was justified, therefore, made a difference in the result.

The State further maintains that defendant could not justifiably use force because he was the aggressor. Certainly, the State’s evidence indicated defendant threatened Wilson and pulled out the gun before Wilson made any threatening moves. On the other hand, defendant testified Wilson threatened him and charged at him before he removed the gun from under his coat. Where the facts are in dispute, the question of whether defendant was the aggressor should be left for the jury to resolve. People v. Harris (1976), 39 Ill. App. 3d 805, 812, 350 N.E.2d 850, 856.

Finally, the State contends the record contains no evidence to support a self-defense or voluntary manslaughter theory. At trial, defendant stated he accidentally shot Wilson. Because defendant maintained he did not intend to shoot, the State concludes he could not have acted with a belief that deadly force was necessary. To prove murder, however, the State had to prove defendant intended to shoot. While the jury was allowed to decide this issue, they were not allowed to decide if defendant’s intent was due to a subjective fear of great bodily harm.

A voluntary manslaughter or self-defense instruction may be proper even when defendant testified the death resulted from an accident. (People v. Minnis (1983), 118 Ill. App. 3d 345, 455 N.E.2d 209.) Defendant is entitled to any defense disclosed by the record, even a defense based upon facts that are inconsistent with his own testimony. (People v. Bratcher (1976), 63 Ill. 2d 534, 540, 349 N.E.2d 31, 34.) The trial court can charge the jury with inconsistent defenses so long as the facts and nature of the case support the feasibility of those defenses. People v. Cruz (1978), 66 Ill. App. 3d 760, 764, 384 N.E.2d 137, 139.

The record contained some evidence to support the voluntary manslaughter and self-defense theories. Although the evidence consists mainly of defendant’s self-serving testimony, which was contradicted by his claim that the shooting was accidental and his statements to police, the credibility of his testimony was a matter for the jury to decide. (People v. Harris (1976), 39 Ill. App. 3d 805, 812, 350 N.E.2d 850, 854.) In order to decide that the trial would not have reached a different result had instructions on voluntary manslaughter and self-defense been given (People v. Moore (1983), 95 Ill. 2d 404, 410, 447 N.E.2d 1327, 1330), we would have to invade the province of the jury. We will not do so, and the trial court erred when it did so. People v. Papas (1942), 381 Ill. 90, 96, 44 N.E.2d 896, 898; People v. Guthrie (1970), 123 Ill. App. 2d 407, 413, 258 N.E.2d 802, 805.

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

Reversed and remanded.

GREEN, J., concurs.

PRESIDING JUSTICE MILLS,

dissenting:

The majority reads “any evidence” entirely too literally. “Any” evidence must at least be believable and possess some color of plausibility.

Defendant and the victim had a fight.

Defendant came off second best.

Six days later — at 2 a.m. — defendant went to the residence of his former girlfriend, who was now keeping company with the victim.

In his statement to the police, defendant said he went to his former girlfriend’s house to see if the victim was there and to “take care of the problems.”

He carried a sawed-off shotgun.

He knocked on the front door for 15 minutes, but she didn’t open the door.

He kicked the door down.

The victim was there and defendant told him that his time was “going to come now.”

He shot the victim.

And he yelled out to the former girlfriend to “put my baby down because you’re next.”

He also yelled, “Wanda, if you’re in there, I got a bullet for you, too.”

Can a defendant under these circumstances claim self-defense and voluntary manslaughter?

Nonsense.

I dissent.


author: JUSTICE STOUDER

text:
    OAK TRUST AND SAVINGS BANK, Plaintiff-Appellant and Cross-Appel-lee, v. CHICAGO TITLE AND TRUST COMPANY, Trustee, et al., Defendants (Timothy M. Crowley et al., Defendants-Appellees and Cross-Appellants).
    Third District
    No. 3-84-0077
    Opinion filed November 30, 1984.
    Rehearing denied January 10, 1985.
    David M. Lynch, of Lynch & Bloom, and James H. Wilton, both of Peoria, for appellant.
    Dennis R. Triggs, of Clem & Triggs, and Dean B. Rhoads, of Sutkowski & Washkuhn Associates, both of Peoria, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises from the dismissal of a complaint filed by Oak Trust and Savings Bank (Oak Trust) by the circuit court of Peoria County. In June 1978, Oak Trust issued a letter of commitment for $450,000 to Timothy and Judith Crowley and Charles and Doris Rock to finance a project to construct two office biddings in Peoria. Subsequently a land trust was formed, with Chicago Title and Trust Company (trustee) serving as the trustee. The land trust was known as No. 1073388. The Crowleys and Rocks were the sole beneficial owners. A trust deed was executed in favor of Oak Trust (grantee) securing the loan. An installment note was also executed by the trustee and guaranteed by the Crowleys and Rocks.

The trust deed contained the following provision:

“At the option of the holders of the note and without notice to First Party, its successors or assigns, all unpaid indebtedness secured by this Trust Deed shall, notwithstanding anything in the note or in this trust deed to the contrary, become due and payable *** (c) immediately upon any sale, assignment, transfer or conveyance of the premises.”

The installment note guaranteed by the Rocks and Crowleys had a j rider attached which contained the following provision:

“It is agreed at the election of the holder or holders hereof and without notice, the principal sum remaining unpaid hereon, to- | gether with accrued interest thereon, shall become at once due and payable in the case the undersigned shall sell, assign, transfer or convey the real estate subject to said Trust Deed.”

The rider was signed by the Crowleys and Rocks.

Subsequently the Crowleys and Rocks assigned all of their beneficial interest in the land trust to four other parties (also defendants). In January 1982 Oak Trust filed a complaint for foreclosure of the trust deed based upon the acceleration clause contained in the trust deed and the rider to the installment note. Defendants Crowley and Rock filed a motion to dismiss because Oak Trust failed to allege a default. The circuit court of Peoria County granted the dismissal, and this appeal follows.

The sole issue before this court is whether the trial court erred in finding as it did that the transfer of all of the beneficial interests in the trust No. 1073388 did not violate the terms of the trust deed or Installment note. We do not agree that the dismissal was proper.

Neither party argues that the acceleration clauses contained in the trust deed and installment note are invalid per se. In Baker v. Loves Park Savings & Loan Association (1975), 61 Ill. 2d 119, 333 N.E.2d 1, the Illinois Supreme Court upheld a due-on-sale clause and recognized that acceleration clauses are valid restraints upon alienation and protect the security interest of the lenders. Instead, the defendants argue that the acceleration clause contained in the trust deed and the similar clause contained in the rider were not invoked because they pertained only to a change in the legal or equitable title to the real estate and not assignments of the beneficial interests. Therefore, defendants argue that the transfer of all of the beneficial interests did not violate the provision of the trust deed and installment note. Relying upon Wachta v. First Federal Savings & Loan (1981), 103 Ill. App. 3d 174, 430 N.E.2d 708, defendants contend that the language of the two applicable provisions must be construed narrowly and that because there was no conveyance of title the clauses should not be adhered to. However, in Wachta the acceleration clause read as follows:

“ ‘[A]t the option of the holders of the note *** all unpaid indebtedness secured by this mortgage shall *** become due and payable immediately upon conveyance by the mortgagor of title, or the execution by the mortgagor of agreement to convey title, to all or any portion of the premises ***’ ” (103 Ill. App. 3d 174, 175, 430 N.E.2d 708, 710),

and refers specifically to changes in title. Nowhere in either the trust deed or the installment note are transfers limited to transfers in title. The trust deed states that all unpaid indebtedness shall be due “immediately upon any sale, assignment, transfer or conveyance of the premises.” A complete assignment of all of the beneficial interests in the land trusts certainly constitutes a transfer of the premises. Had less than all of the beneficial interests been assigned/transferred, the defendants’ argument would be more persuasive. However, when the substance of the transaction is considered, it is impossible to distinguish it from a sale. Furthermore, the trust deed refers to the “premises” and does not specify that the transfer must be by the undersigned (the trustee).

As to the installment note, the rider was signed by the Crowleys and the Rocks and specifies that the note will become due in the case the undersigned shall sell, transfer or convey the real estate. Unquestionably the undersigned (the Crowleys and Rocks) sold the real estate which was the subject of the note.

We, therefore, hold that the trial court erred in finding as it did that the transfer of all of the beneficial interests in Trust No. 1073388 did not violate the terms of the installment note or the trust deed. We, therefore, remand this case to the circuit court of Peoria County for further proceedings in conformity with our decision in this case.

Reversed and remanded with instructions.

HEIPLE and SCOTT, JJ., concur.


author: JUSTICE PINGHAM

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY PURNELL, Defendant-Appellant.
    First District (5th Division)
    No. 83—2775
    Opinion filed December 7, 1984.
    Steven Clark and Scott Graham, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and Peter D. Fischer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PINGHAM

delivered the opinion of the court:

Following a bench trial, defendant was found guilty of rape, deviate sexual assault, unlawful restraint, home invasion, residential burglary and armed violence and was sentenced to an extended prison term of 50 years on the rape offense only (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1), the trial court having found that the other offenses merged with the rape offense.

On appeal to this court, defendant contends that: “(1) defendant’s Sixth Amendment right to counsel was violated where he was placed in a lineup without notice to appointed counsel; (2) defendant was denied due process of law and a fair trial where the trial court allowed his impeachment with four prior convictions without exercising its discretion in determining their admissibility as required under People v. Montgomery (1971), 47 Ill. 2d 510; [and] (3) defendant was denied a fair trial where the trial court admitted evidence of [the] complainant’s identification from a photographic array where the prosecution failed to produce the photographs. This error prevented defendant from establishing that the photographic procedure was unduly suggestive and rendered [the] complainant’s identification testimony unreliable.” We affirm.

The complainant testified that at approximately 1 p.m. on January 10, 1982, she entered the hallway of her apartment building and walked up the stairs to the first floor, where she saw defendant descending the stairs from the second floor. The defendant walked past the complainant to a fire-escape door, then turned and walked back to her. The complainant testified that defendant displayed a gun and said, “Don’t scream and I won’t hurt you. Open the [apartment] door and go inside.” They entered the complainant’s apartment and defendant asked her why she lived alone, to which she answered, “Because there was no one to live with me.” Defendant then pointed the gun at the complainant’s head, told her to kiss him and began to unbutton her coat and clothing, while holding the gun in his left hand. Defendant told the complainant to sit in a chair, to unfasten his pants and perform oral copulation on him. She did so, whereupon he told her “to get up and go to the washroom and clean up,” which she did, with the defendant following behind.

Defendant then told the complainant to lie down on the living room floor. Defendant went into the kitchen, took a wallet that was on top of the refrigerator and returned to the living room where the complainant was still lying on the floor. Defendant asked the complainant how long she had lived in the apartment, whether she had a job and how she paid her rent. The complainant remained on the floor nude as she answered his questions. During this conversation, the janitor of the building unexpectedly opened the front door of the apartment and looked into the living room. The complainant screamed “No!” The janitor said “Oops!” and walked out. The defendant asked the complainant why the janitor had come and the complainant explained that he probably came to exterminate her apartment. Defendant then ordered the complainant to spread her legs so he could have sex with her, and he did. After a few moments, the defendant went into the kitchen, wiped himself off with a towel and told the complainant that he was going to shoot her. The complainant pleaded for her life. Defendant ordered the complainant to get dressed. She again began to cry and told the defendant that she was glad he did not kill her. The defendant then left her apartment.

The complainant further testified that after the defendant left she started to pack her clothes, that someone rang the buzzer to her apartment and that she was afraid to answer the door. Soon thereafter she heard her mother’s voice at the door and the complainant let her in. She told her mother that she had just been raped. The complainant’s mother called the police, who came and drove the complainant to the hospital. Eight days after the incident the complainant identified defendant from police photographs.

Cross-examination of the complainant disclosed that the defendant remained in the apartment for approximately 30 minutes, that the complainant’s description of the assailant given by her to the police was: black, approximately 170 pounds, moustache, and that he was taller than the complainant.

Detective Hans Heitmann, the State’s next witness, testified that he conducted a lineup which included the defendant and which was viewed by the complainant. Heitmann identified a photograph of the lineup, State’s exhibit No. 1, and stated that the complainant identified defendant in the lineup. Under cross-examination, Heitmann testified that he did not show photographs of the defendant to the complainant. He also stated that “[t]hey [the pictures] were first mentioned today. I have no knowledge of any photographs prior to today.” Under further cross-examination, Heitmann stated that the complainant identified the defendant the moment she stepped to the window and looked out.

It was stipulated that the janitor, Robert Alvardo, would testify that when he opened the door to the complainant’s apartment he observed the complainant crying on the floor and a black male sitting in a wicker chair and that when he left the complainant’s apartment he called the complainant’s mother. It was further stipulated that Joan Taylor, the complainant’s mother, received a telephone call, that she went to her daughter’s apartment and that when she arrived the complainant told her that she had been raped. The stipulated medical examination of the complainant proved positive for vaginal sperm.

Defendant called Officer Raymond Behnke, who testified that he talked to the complainant in her apartment on the day of the incident and that she gave him the following description of her assailant: late twenties, dark complected, moustache and, as Behnke estimated based on the complainant’s description, five feet, four inches tall and 170 pounds.

Testifying in his own defense, defendant stated that he was not in the complainant’s apartment on the day of the incident. He further stated that while in custody at the police station he participated in a lineup, that he was asked by an officer to wear in the lineup the burgundy and white jacket he had on when he was arrested and that pictures were taken of the lineup. Defendant also testified that on the day following his arrest, while in custody at the police station but before he participated in the lineup, a policeman took his picture, at which time he had on the burgundy and white jacket that he was wearing at the time of his arrest.

Cross- and redirect examination of the defendant disclosed that at the time of his arrest defendant resided at 4224 North Ashland, that his height was 5’10”, that he was 28 years old, was not married and that he was not working on the day of the incident. At the close of this testimony defendant rested.

Defendant then made a motion to suppress the complainant’s in-court identification testimony on the grounds that it was improper for the police to have the defendant appear in a lineup wearing the same clothing (burgundy and white jacket) that he wore in the photograph which was previously shown the complainant. The complainant selected this photograph of the defendant from an array of others prior to her lineup identification of the defendant. Defendant further argued that the pictures shown the complainant should have been “produce[d] in open court, during pretrial examination, or at trial.” Additionally, he argued that because his attorney was not notified that he (defendant) would appear in a lineup, the complainant’s identification of the defendant was “impermissible, suggestive and therefore tainted.”

The trial judge denied defendant’s motion to suppress the complainant’s in-court identification on the grounds that “there is not enough here to suggest that there was suggestiveness.” It was then stipulated that defendant had seven felony convictions, four of which occurred within the past 10 years. Those four convictions were theft, attempted murder, armed robbery and aggravated battery. The trial court stated that the complainant was a very credible witness who “had over an hour, in the middle of the daytime to view her assailant,” and that the complainant was corroborated by (1) the janitor’s stipulated testimony that he opened the complainant’s apartment door and saw her nude and crying on the floor; (2) her prompt rape outcry to her mother; and (3) the stipulation of the microbiologist that the complainant’s vaginal tests were positive for sperm.

The trial court further determined that the complainant’s ability to describe the defendant was “relatively accurate,” that the complainant’s description of the defendant as 190 pounds, moustache and maroon and gray jacket were accurate, and that the defendant admitted that he owned and wore “that jacket” on the day he was arrested.

The record in the case at bar reveals that the defendant was brought before the court on a series of charges for which the court appointed a public defender to represent him. These series of charges did not include the instant offenses. The preliminary hearing on these series of charges was continued, and the defendant was returned to the lockup. Police officers subsequently removed the defendant from the lockup and placed him in a lineup to be viewed by the complainant for the instant offenses. Defendant contends that this was done without notice to his court-appointed counsel and without admonition to him of his right to counsel at the lineup in violation of his sixth amendment right to counsel. The State responds that the defendant’s court-appointed attorney was not appointed to represent the defendant for the offenses for which the defendant was placed in the. lineup, i.e., the instant case, that the defendant had not yet been charged with commission of the instant offenses at the time he was placed in the lineup, and that adversarial proceedings in the instant offenses thus had not been initiated. Furthermore, the State contends, defendant was advised of his right to counsel at the lineup, but he knowingly waived this right.

The record shows that Detective Heitmann, who was called by the defendant on his motion to suppress the complainant’s identification evidence, testified as follows:

“Q. Detective Heitmann, was Mr. Purnell asked to participate in this lineup?
A. Yes.
Q. And did he voluntarily consent to do so?
A. Well, prior to being asked I advised him of his rights and I asked him after I advised him of these rights I would like him to stand in the lineup and he said I have no objection to it.
Q. Is it not true Mr. Purnell was there [for] a preliminary hearing in another matter?
A. I believe he was there on another matter. *** I knew he was there locked up for that purpose, yes.
Q. Did Mr. Purnell have an attorney present at this lineup?
A. No, he did not.
Q. Are you aware he did in fact have a public defender?
A. I am not aware of it. He didn’t tell me he wanted anybody there after I told him his rights.
Q. He was in fact advised of the fact that an attorney could be present during his lineup?
A. As part of his constitutional rights, yes.” (Emphasis added.)

The defendant’s contrary testimony under cross-examination, presented at the identification suppression hearing, was as follows:

“Q. Mr. Purnell, the detective that you just testified about do you remember talking to him on the 18th of January?
A. I didn’t talk to him at all. He wasn’t inside the room at all.
Q. You don’t remember having him advise you of your rights?
A. No.
Q. Do you remember any officer advising you of your rights?
A. No.
Q. They just put you in a lineup?
A. Yes.”

From this conflicting testimony between Heitmann and the defendant, the trial court accepted the testimony of Heitmann and held that the defendant waived his right to counsel at the lineup, stating, “[T]here has been no showing that Mr. Purnell asked for his attorney to be present. And in fact the police testified to the contrary.” It was within the trial court’s province to resolve the foregoing conflicting evidence. (People v. Rosa (1981), 93 Ill. App. 3d 1010, 418 N.E.2d 124.) Based on our review of the record, the trial court’s decision was not unreasonable and was supported by the evidence. Therefore, it will not be disturbed. Accordingly, we need not decide the applicability of the cases on which defendant relies as authority for his contention that he had a constitutional right to counsel at the lineup (People v. Adams (1983), 116 Ill. App. 3d 315, 451 N.E.2d 1351; People v. Sharp (1983), 150 Cal. App. 3d 13, 197 Cal. Rptr. 436), nor need we discuss or decide the State’s inconstant argument under Peo ple v. Burbank (1972), 53 Ill. 2d 261, 291 N.E.2d 161, cert. denied (1973), 412 U.S. 951, 37 L. Ed. 2d 1004, 93 S. Ct. 3017; People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228; People v. Hall (1983), 117 Ill. App. 3d 788, 453 N.E.2d 1327; People v. Sanderlin (1982), 105 Ill. App. 3d 811, 434 N.E.2d 1158; and People v. Brown (1972), 52 Ill. 2d 94, 285 N.E.2d 1, that the defendant was not constitutionally entitled to counsel at the lineup for the then nonadversarial (instant) offenses for which his lawyer had not yet been appointed to represent him.

Defendant’s second contention must also fail. He argues that the trial court failed to exercise its' discretion undér People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, and exclude evidence of defendant’s four prior felony convictions of attempted murder, armed robbery and aggravated battery in 1975, felony theft in 1980 and attempted burglary in 1983.. After hearing defendant’s argument on the prejudicial effect of his prior convictions, the trial court ruled:

“I have followed Montgomery for both witnesses and defendants. I have excluded in the past those convictions that are without the ten year limitation, and I have included misdemeanors that go to basic honesty, chief challenges, such as that. I have applied [the] Montgomery decision to both defendants and witnesses as I have said before, so I will allow your motion in limine for any conviction that is more than ten years from today, and for any misdemeanors. If there are any others that fall within Montgomery, your motion in limine is denied. I exercise my discretion. I know I have discretion. I exercise my discretion by allowing that.”

Defendant argues from the foregoing that the trial court did not exercise discretion but, instead, applied a “blanket rule” of allowing impeachment by admission of convictions which occurred within 10 years of trial and excluding convictions falling outside that period.

In Montgomery, our supreme court stated that:

“Both the American Law Institute and the Commissioners on Uniform State Laws have taken the position that when the accused takes the stand on his own behalf he should be subject to impeachment only by proof of past crimes which directly bear on testimonial deception *** and that past convictions not in this category should not be admissible unless they are relevant for some purpose other than impeachment. More recently, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has approved the following rule relating to this problem:
‘Rule 609. Impeachment by Evidence of Conviction of Crime
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime *** is admissible but only if the crime, (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement regardless of the punishment unless (3), in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of conviction or of the release of the witness from confinement, whichever is the later date.’
* * *
‘ “In exercising discretion in this respect, a number of factors might be relevant, such as the nature of the prior crimes, *** the length of the criminal record, the age and circumstances of the defendant, and above all, the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction.” Chief Justice Burger suggested in [Gordon v. United States (D.C. Cir. 1967), 383 F.2d 936] various factors to be considered in making the determination: the nature of the crime, nearness or remoteness, the subsequent career of the person, and whether the crime was similar to the one charged.’ ” People v. Montgomery (1971), 47 Ill. 2d 510, 516, 518.

In the pending case, we do not agree with the defendant’s contention that the trial court applied a “blanket rule” of admitting all felonies less than 10 years old for impeachment purposes. As the trial court’s previously quoted excerpt shows, the court was well aware of the factors to be considered in determining the admissibility of defendant’s convictions. In fact, the trial judge pronounced, “I have included misdemeanors that go to basic honesty, chief challenges, such as that.” The record does not reveal any statement by the trial judge which establishes that he did not properly exercise his discretion under Montgomery in admitting the defendant’s prior convictions. Moreover, there is no requirement that the trial judge make an express evaluation of each of the Montgomery factors in open court in balancing the probativeness of prior convictions versus their prejudicial effect. A reviewing court will assume that the trial judge gave appropriate consideration to only relevant factors. (People v. Washington (1973), 55 Ill. 2d 521, 523-24, 304 N.E.2d 276; People v. Fought (1980), 85 Ill. App. 3d 732, 733, 407 N.E.2d 231.) In our view, the trial court did not abuse or improperly exercise its discretion.

Defendant further argues that he “was denied a fair trial where the trial court admitted evidence of [the] complainant’s identification from a photograph array where the prosecutor failed to produce the photographs [which] error prevented defendant from establishing that the photographic procedure was unduly suggestive and rendered complainant’s identification testimony unreliable.” This argument is unpersuasive.

First, the trial court was fully apprised of the facts surrounding the absence and loss of the pictures and was advised by the State that the failure to provide the defendant with the pictures was inadvertent and that prior to trial a trial assistant had diligently attempted to find the pictures after he discovered they were missing. Second, the complainant testified that the photos were of several different men, that no one told her which picture to select and that after viewing the pictures and selecting defendant from among them she again selected defendant as her assailant from a lineup that was conducted shortly thereafter. The trial court was fully aware of the pertinent facts of the complainant’s photo identification and reasoned as follows:

“THE COURT: Okay, I went back and looked at my notes concerning Miss Rochelle Jones’ testimony as to seeing the photographs. She said she picked out Purnell’s picture from a group of pictures and she did not say all the pictures were of Purnell. Nobody cross examined or brought to me any evidence those were only pictures of Mr. Purnell. From her statement I think I can reasonably infer the pictures that were shown to her were a group of pictures one of which was Purnell. There is no evidence to the contrary. Bringing Mr. Purnell into a hallway and having him stand there and parading the five individuals one by one up to the glass and then back and having them stand in a line and have photographs taken after the lineup certainly doesn’t appear to be in any way suggestive. I have in front of me the lineup photograph. All five of the gentlemen appear to be of the same general height. Two are a little thinner but the other three — or the other two are approximately the same build as Mr. Purnell. They all have facial hair, mous-taches. Three of them along with Mr. Purnell seem to have both moustache[s] and chin whiskers. One has a beard. All are approximately the same height. It appears to be they all have approximately the same complexion. It appears to be on its face a relatively fair type of showing. Miss Jones did testify specifically nobody advised her who to pick out. [They] only told her they believed they had the man in custody and asked if she could come— they think they have a man in custody who matches the description she gave them, at least as to the clothing.
Other than that there does not appear in my mind to be any impropriety.” (Emphasis added.)

For the reasons set forth above by the trial court, we do not believe that the defendant was denied a fair trial or that the complainant’s pretrial photograph identification of the defendant was impermissible or suggestive. People v. Son (1982), 111 Ill. App. 3d 273, 278, 443 N.E.2d 1115; People v. Chancy (1980), 91 Ill. App. 3d 817, 820, 414 N.E.2d 1239.

Accordingly, the trial court’s judgment and sentence imposed thereon will be affirmed.

Affirmed.

MEJDA, P.J., and LORENZ, J., concur.