author: Mr. JUSTICE ALLOY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VERNON DARNELL HICKS, Defendant-Appellant.
    Fourth District
    No. 16674
    Opinion filed October 29, 1981.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

In a jury trial, defendant Vernon Hicks was convicted of murder, attempted murder, home invasion and armed robbery. The trial court sentenced defendant to 40 years’ imprisonment for murder and to a consecutive sentence of 30 years for attempted murder. The court also imposed a concurrent term of 30 years’ imprisonment on the armed robbery conviction. The defendant now appeals his convictions and the sentences imposed.

At trial, the State’s chief witness was Kathryn Yazell. Yazell was living with Francis Cody on September 24, 1979. The two of them frequently sold marijuana to other individuals. Through such sales, Yazell and Cody came into contact with Richmond Russell, a frequent customer. Yazell and Cody would give him marijuana, and he would give them money after he subsequently sold the marijuana. At about 3 a.m. on September 24, 1979, Russell came to Cody’s home. Cody and Yazell were sleeping when Russell knocked on the door. Cody went to answer the door, but Yazell stayed in bed.

Yazell testified that the next thing she knew, a man began tying her up. She saw two other men — Russell and the defendant Hicks — standing on each side of Cody. All the men were armed with weapons. After she and Cody were tied up, they were placed in the living room. Yazell testified that from her vantage point, she could see two of them search the bedroom while the defendant guarded them. They discovered a safe but could not open it. They dragged Cody back into the bedroom, extracted the combination to the safe from him, and brought him back into the living room.

After they opened the safe, the two men placed the contents of the safe in one of Yazell’s handbags. The safe had contained a ledger, a checkbook and “several thousand” dollars. At trial, Yazell could not recite an exact figure and denied giving the police an exact figure. Before the defendant and his accomplices left the home, they covered the windows with blankets and turned the volume of the stereo up loudly. Yazell testified that as she and Cody were lying on the floor, against a wall, the defendant shot her in the face and neck and shot Cody twice. Cody died from his wounds.

Yazell identified her assailants — including the defendant — from two separate sets of photographs shown to her while she was in the hospital on September 25 and September 26. She also identified the defendant at trial as the man who shot her and Cody. When the police found and arrested the defendant six months later, he admitted that he accompanied Russell and another man (who proved to be Russell’s brother) to the Cody home. He also admitted that he carried a weapon, which was shown to be of the same type that shot Yazell and Cody, on that evening.

The first issue on appeal is whether the State proved the defendant guilty beyond a reasonable doubt. The defendant claims that the testimony of Yazell was confusing, inconsistent and incredible. The defendant points to inconsistencies between Yazell’s direct examination testimony and her cross-examination testimony, on the questions of how long she had used marijuana and when she stopped using drugs. The defendant also claims that Yazell’s testimony in court concerning how much money was in the safe is inconsistent with prior statements made to police on that matter. Yazell denied ever making those inconsistent statements. Finally, the defendant argues that Yazell’s identification of the defendant and her testimony are incredible, because, while in the hospital, she wrote down the name “Richie” in response to a question about who shot her.

It is settled that “[a] reviewing court may not substitute its judgment for that of the trier of fact ‘on questions involving the weight of the evidence or the credibility of the witnesses, and we will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt.’ ” (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) Yazell’s inconsistencies regarding her drug use are merely collateral to the primary questions concerning the guilt of the defendant. Moreover, her alleged inconsistent statements concerning the precise amount of money in the safe are also collateral to the principal issues. Even if that issue was of some importance, the fact that the jury may have chosen to believe her over the police officers is not sufficient reason to reverse the jury’s verdict.

Finally, although superficially damaging to Yazell’s identification of the defendant, her statement that “Richie” shot her does not render her testimony incredible. On the same day Yazell was shot, as she was in a hospital bed in critical condition from gunshot wounds to the head and neck, her brother asked her if she knew who shot her. She wrote down “Richie.” Yazell later told detectives that she was merely trying to convey that Russell was involved in the shooting, not that he actually did the shooting. Considering her condition at the time, and the fact that Russell was the only assailant that she knew by name, her statement and explanation are not so inconsistent with her identification testimony as to render the latter incredible as a matter of law. The fact that the jury chose to believe her should not be disturbed.

The defendant also appeals his conviction for armed robbery, alleging that the State failed to prove that the defendant removed any currency from Cody’s presence. Yazell testified that the men opened the safe, that “thousands of dollars” were in the safe, that the men took things out of the safe and placed them in a handbag, and that, later, the police informed her that the safe was empty when they opened it. The jury could reasonably infer that the defendant and his accomplices took money from Cody’s presence.

The defendant also claims that he was denied his right to a fair trial because the trial court admitted prejudicial photographs into evidence. These photographs depicted Cody’s body and uncleaned gunshot wounds. The defendant characterizes the photos as unnecessarily gruesome and asserts that their prejudicial effect outweighed their probative value.

The trial court has discretion to admit photographs in a criminal prosecution. The court should balance the probative value of the photos against their prejudicial effect. The decision of the trial court will not be reversed absent an abuse of discretion. (People v. Greer (1980), 79 Ill. 2d 103, 117, 402 N.E.2d 203.) Trial courts have discretion to admit a photograph if it is probative, even if the photo is also gruesome. (People v. Lindgren (1980), 79 Ill. 2d 129, 143, 402 N.E.2d 238.) In the case at bar, the photographs corroborated and aided the testimony of the pathologist. Therefore, the trial court did not abuse its discretion in the admission of the photographs into evidence. See also People v. Blackwell (1979), 76 Ill. App. 3d 371, 381, 394 N.E.2d 1329 (photos not unnecessarily cumulative merely because of oral testimony on same issue).

The defendant’s fourth contention on appeal is that he was denied a fair trial due to allegedly improper comments from the prosecutor. The prosecutor, in closing argument, stated, “[The criminal code] protects everyone, and if a guilty conviction on all counts is not returned, then we may as well throw the code right out the window.” The defendant contends that this comment was an improper expression of personal opinion, implying the evidence was so clear that only one conclusion was possible.

The prosecutor is entitled to argue his case to the jury, and is entitled to argue the evidence and reasonable inferences from that evidence. (People v. Hairston (1970), 46 Ill. 2d 348, 375, 263 N.E.2d 840, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658.) Moreover, it is certainly proper for the prosecutor to argue that he has proved his case to the jury. (People v. Bost (1980), 80 Ill. App. 3d 933, 955, 400 N.E.2d 734.) Therefore, we find no error or unfair prejudice in the prosecutor’s remark.

The defendant also claims that the prosecutor’s characterization of defense counsel’s arguments as “red herrings” constituted an improper personal attack upon the defense counsel. As we see it, the prosecutor merely argued that the defense counsel’s points were not relevant to the determination of guilt or innocence. There is nothing improper in suggesting that the opponents’ arguments are immaterial or irrelevant. See People v. Galloway (1979), 74 Ill. App. 3d 624, 393 N.E.2d 608.

The defendant also contends that it was improper and prejudicial for the prosecutor, in rebuttal argument, to compare the juror’s task to the television game show “Concentration.” The defendant claims that this comparison detracted from the seriousness of a criminal trial. The prosecutor, however, stressed the importance of the juror’s task, and emphasized his burden of proof. Furthermore, the prosecutor delivered this comment in response to defense counsel’s analogy to a jigsaw puzzle. The defense counsel invited a response to counter his own analogy, and cannot now complain that the response may have been improper.

The defendant also claims it was improper and misleading for the prosecutor to state that the holsters and ammunition found in Russell’s apartment were “just as good as the murder weapon” to implicate the defendant in the murder and robbery. It is true, as defendant argues, that the weapon itself would be more probative. However, the prosecutor is still entitled to argue, as he did here, the evidence and legitimate inferences from it. People v. Hairston (1970), 46 Ill. 2d 348, 375, 263 N.E.2d 840.

As a fifth issue on appeal, the defendant contends that it was reversible error for the trial court to instruct the jury not to consider the fact that the defendant did not testify. The State tendered Illinois Pattern Jury Instruction, Criminal, No. 2.04 (1968). This instruction states: “The fact that [a] [the] defendant[s] did not testify should not be considered by you in any way in arriving at your verdict.” The trial court gave this instruction over defendant’s explicit objection.

The trial court committed error in giving this instruction over defendant’s objection. This court has ruled that this instruction may have the effect of calling attention to the fact that the defendant did not testify and thus prejudicing his case. (People v. Lee (1976), 44 Ill. App. 3d 43, 45, 357 N.E.2d 888.) Therefore, it is the defendant who must be allowed to choose whether the instruction will be used.

This does not necessarily mean, however, that the defendant’s conviction must be reversed. A criminal conviction will be reversed for improper jury instructions when the error is prejudicial to the defendant. (People v. Stewart (1970), 46 Ill. 2d 125, 128, 262 N.E.2d 911.) In the case at bar the defendant moved for a directed verdict after the State presented its case. The defendant rested immediately after the court denied his motion. The impact on the jury, of the defendant not presenting any evidence, could not have been lost. In this context, the instruction to the jury regarding his silence is harmless error, if not in fact beneficial to him. This determination is reinforced by the strong and overwhelming evidence of the defendant’s guilt. People v. Stewart (1970), 46 Ill. 2d 125, 128, 262 N.E.2d 911.

Finally, the defendant contends that the trial court committed error in sentencing him. The State concedes that the trial court erroneously considered participation in the proceeds of the crime as receiving compensation for the crime. The trial court specifically stated that a factor in aggravation which the court was considering was that “the defendant received compensation for committing the offense of armed robbery.” The trial court considered such compensation as a factor in aggravation of the crime under section 5 — 5—3.2(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(a)(1)). Although such a determination was incorrect (People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906), the events here, the lack of any mitigating factors and the defendant’s prior criminal history amply support the robbery sentence and the murder and attempted murder sentences imposed upon him.

For the foregoing reasons, the convictions in the Circuit Court of Sangamon County and the subsequent sentences are affirmed.

Affirmed.

STOUDER and HEIPLE, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE GREEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN MARSHALL, Defendant-Appellant.
    Fourth District
    No. 16726
    Opinion filed October 29, 1981.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE GREEN

delivered the opinion of the court:

Defendant, Steven Marshall, appeals his conviction and sentence for delivery of a controlled substance containing less than 30 grams of cocaine (Ill. Rev. Stat. 1979, ch. 56)á, par. 1401) entered on April 22, 1980, after a jury trial in the circuit court of Vermilion County. He was sentenced to 2% years’ probation conditioned upon 18 months’ periodic imprisonment and fined $2,000. He maintains: (1) the State failed to rebut his affirmative defense of entrapment by proof beyond a reasonable doubt; (2) the court abused its discretion in denying his motion for continuance to obtain substitute counsel; (3) if his conviction stands, the classification of the offense should be reduced from a Class 2 to a Class 3 felony; and (4) the imposition of a fine was an abuse of discretion.

As defendant testified at trial admitting his participation in various deliveries of cocaine but claiming entrapment, the occurrence testimony was similar in many respects. It was undisputed that defendant, an informer named Marcel Cleave, and two law enforcement officers named Carey Spicer and Frank Sporcich met on February 27,1979, and March 1, 1979, and that defendant, Cleave and Spicer met on March 8,1979. At the first meeting, defendant gave Sporcich two packets of cocaine from a bottle and Sporcich gave defendant $35. On March 1, 1979, defendant delivered cocaine to both Spicer and Sporcich in exchange for money. On the last occasion defendant delivered cocaine to Sporcich in exchange for money. The State’s evidence showed that during a four-month period Cleave had arranged some 40 contraband sales for the State and had been paid approximately $1,300 in compensation. In December 1979, law enforcement officers had placed Cleave on an airplane bound for California. He was not called as a witness at trial.

Defendant maintains that he participated only at Cleave’s urging and in support testified to the following sequence of events. On February 27, 1979, while defendant was shooting pool in a Danville tavern, Cleave approached defendant, stated he, Cleave, had a quantity of cocaine and requested defendant sell it for Cleave to some of Cleave’s friends who were junkies and needed it. Cleave further explained that he could not sell the cocaine himself because he owed the individuals a sum of money and thus, they would not want to pay him for the cocaine. Although defendant had known Cleave since childhood and trusted him, defendant refused to 3

perfomi' the aforesaid favor. However, Cleave began “begging and plead** g” with defendant, stating that he needed the money. Defendant, know * l Cleave was married and had several children, finally agreed to make e sale. On March 1, 1979, Marcel Cleave implored him to make furth(. sales to Cleave’s friends, stating “this would be the last time.” Again h March 8,1979, he agreed to make a further sale only after being beggt.: to do so by Cleave. On all occasions Cleave supplied him with the cocaii * .

T:; test for entrapment generally followed in Illinois is that derived from . le majority opinion in two leading cases of the United States Supreme Court on the subject. (Sorrells v. United States (1932), 287 U.S. 435, 7 L. Ed. 413, 53 S. Ct. 210; Sherman v. United States (1958), 356 U.S. 369, 2 Ed. 2d 848, 78 S. Ct. 819.) Entrapment exists “when the criminal design originates with the officials of the Government and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” (Sorrells v. Untied States (1932), 287 U.S. 435, 442, 77 L. Ed. 413, 417, 53 S. Ct. 210, 212-13.) Thus, for entrapment to be established (1) the government must, for the purpose of obtaining evidence, originate the crime and induce the defendant to commit it; and (2) the defendant must be an “innocent” person who would not have committed a crime of this sort had he not been thus induced (he need not be innocent in the sense that he has no prior criminal record). LaFave and Scott, Criminal Law §48, at 371 (3d ed. 1977).

Under defendant’s version of the facts, all of the cocaine delivered was supplied by Cleave, the State’s informer. The State’s witnesses did not so state but were not called in rebuttal to counter this testimony. In any event, in People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812, the court refuted a claim that under People v. Strong (1961), 21 Ill. 2d 320, 172 N.E.2d 765, and People v. Dollen (1972), 53 Ill. 2d 280, 290 N.E.2d 879, the State’s furnishing of the controlled substance indicated absolutely that the idea for the offense arose from the State and the defendant had no predisposition to commit the offense. The court stated that in light of the ever-growing drug problem, government action in infiltrating drug rings should not be criticized so strongly, and that the court should not foreclose the possibility that a conviction of a predisposed individual could be sustained even though the government did furnish the controlled substance. The State’s furnishing of all the cocaine delivered does not, of itself, require us to reverse.

The likelihood that Cleave’s coaxing was the predominant cause of defendant’s conduct was lessened a great deal by the undisputed evidence that defendant made deliveries on three separate occasions several days apart. While a single delivery could well have resulted from coaxing, the multiple acts would indicate a desire to become involved in the trade and a deliberate intent to do so. Further evidence of defendant’s predisposition to do so came from Spicer’s testimony that: (1) after the first delivery on February 27,1979, defendant told Spicer if he were interested in more cocaine, to contact Cleave, and (2) after the March 1, 1979, deliveries, defendant told Spicer defendant would have more cocaine for him later. Although defendant denied making at least one of the statements, the jury could have believed Spicer.

Although most of defendant’s testimony was not directly disputed, he testified that after each sale, he gave back to Cleave the objects which contained the controlled substances while the officers testified that defendant did not do so. Defendant’s testimony that on March 1,1979, he met Cleave at a tavern where they talked for five or 10 minutes before going to meet Spicer was inconsistent with Spicer’s testimony that he met Cleave who was then gone for five minutes before returning with defendant. If the jury believed the officers rather than defendant, the jury could have taken the discrepancy in the testimony in consideration in determining the weight to be given to defendant’s testimony.

The evidence was sufficient for the jury properly to have found the entrapment defense to have been disproved beyond a reasonable doubt. Thus, the evidence was sufficient to support the verdict.

A chain of events relate to the court’s denial of defendant’s request for a continuance to retain private counsel. Defendant was indicted on May 21,1979, the public defender was to represent him, and the case was set for trial in October. On the day of trial, attorney Richard Doyle appeared before the court and stated defendant had contacted him the night before expressing dissatisfaction with the public defender’s preparation. A request for a continuance so that Mr. Doyle could prepare for trial and represent defendant was made. The court denied the request as being untimely. The case went to trial with the public defender representing defendant. The jury returned a verdict finding defendant guilty of several counts, but the trial court granted defendant a new trial. Retrial was originally set for March 5, 1980, and reset for March 11, 1980. On March 4,1980, attorney Doyle entered his appearance for defendant and filed motions for a transcript of the proceedings at the original trial and a continuance of the new trial. At a hearing on March 7, 1980, the court denied the motion for continuance and refused Mr. Doyle permission to enter his appearance at that date. Recause of defendant’s illness, the case was later continued until April 21, 1980, when a trial occurred at which defendant was represented by the public defender.

Defendant maintains that the court’s ruling on March 7, 1980, deprived him of his right to counsel of his choice as guaranteed by the combined effect of the sixth and fourteenth amendments as interpreted by People v. Green (1969), 42 Ill. 2d 555, 248 N.E.2d 116, and People v. Gardner (1977), 47 Ill. App. 3d 529, 362 N.E.2d 14. In Green, an attorney hired by a church group to represent the defendant failed to appear for a trial. The supreme court held that the trial court violated the defendant’s right to counsel by forcing him to go to trial immediately and with an unprepared public defender as counsel. The court indicated that an accused’s right to counsel of his own choice did not extend to that which would bring about an “ ‘indefinite thwarting of the administration of justice.’ ” (42 Ill. 2d 555, 557, 248 N.E.2d 116.) The trial court has been deemed to have less discretion in denying a continuance for preparation by new counsel when that counsel has filed an appearance (People v. Payne (1970), 46 Ill. 2d 585, 264 N.E.2d 167) than when no showing has been made as to who the new counsel might be. People v. MacArthur (1971), 2 Ill. App. 3d 1077, 278 N.E.2d 530.

This defendant had attempted to have Mr. Doyle substituted as counsel on the day of the first trial because of dissatisfaction with court-appointed counsel. A new trial was granted on December 11, 1979, but defendant did not obtain new counsel until March 4, 1980, about one week before the date for which the new trial had been set. Again the defendant claimed dissatisfaction with the preparation of court-appointed counsel. On March 20, 1980, the case was continued until April 14, 1980, because of defendant’s illness. Had defendant wished to proceed with new counsel, a sufficient period then existed for new counsel to have entered the case with time to prepare and meet the new trial date. However, no attempt was made to do so. This record fully supports the trial court’s determination that the tardy attempts to substitute counsel were made for delay. Defendant failed to exercise the required diligence. No error occurred.

Next, defendant argues his convictions should be reduced from Class 2 felonies to Class 3 felonies pursuant to this court’s decision in People v. McCarty (1981), 93 Ill. App. 3d. 898, 418 N.E.2d 26. However, the Supreme Court of Illinois recently reversed that decision (People v. McCarty (1981), 86 Ill. 2d 247), and therefore his convictions should stand.

Defendant finally asserts the trial court abused its discretion when it imposed a fine of $2,000 in addition to a term of periodic imprisonment, all as a condition of his probation. Section 5 — 9—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 9—1) provides for the imposition of fines and states they may be imposed in addition to sentences of probation or periodic imprisonment. However, section 5 — 9—1(c)(1) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 9—1(c)(1)) requires the court, before imposing a fine, to consider “the financial resources and future ability” to pay the fine, and the Council Commentary to the section indicates that “fines are purposely discouraged by the Code unless some affirmative reason indicates that a fine is peculiarly appropriate” (Ill. Ann. Stat., ch. 38, par. 1005 — 9—1, Council Commentary, at 520 (Smith-Hurd 1973)). Defendant maintains the trial court failed to consider his ability to pay the fine and no showing was made that the fine was “peculiarly appropriate.”

In People v. Bishop (1980), 81 Ill. App. 3d 521, 524, 401 N.E.2d 648, 650, the court stated that the trial judge need not specifically state that the defendant was determined to have the financial resources and future ability to pay the fine. That finding would be implicit in the imposition of a fine where the trial judge was aware of facts in the record which would support such a finding.

Such was the case here. The judge considered the fact that defendant had a good job and no dependents in sentencing him to 2% years’ probation with 18 months’ periodic imprisonment. In view of the severity of conduct for which the sentence was imposed and the otherwise relatively mild punishment, it would appear the fine was “peculiarly appropriate.”

For the reasons stated, we affirm.

Affirmed.

TRAPP, P. J„ and WEBBER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH MARTINICO, Defendant-Appellant.
    Fourth District
    No. 17004
    Opinion filed October 29, 1981.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, and Kevin D. Back, law student, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE GREEN

delivered the opinion of the court:

On January 19, 1981, defendant, Joseph Martinico, was convicted of the offense of armed robbery, following a jury trial in the circuit court of Champaign County. Thereafter he was sentenced to a term of imprisonment of 6 years. On appeal defendant contends: (1) his conviction for armed robbery must be reduced to robbery because he did not attempt to use the weapon in a manner which was dangerous; (2) the jury was improperly instructed on the factors to be considered in determining whether defendant was armed with a dangerous weapon; and (3) the trial court erred in admitting testimony concerning the test firing of the weapon.

The undisputed evidence at trial showed that on October 7, 1980, defendant handed the cashier at the 7-Eleven Store in Champaign, a note which read:

“I’ve got a gun so don’t set off any alarms or your [sic] deadU Be quiet and put the money in a bag like nothing was happening!! Im [sic] serious man move! it!”

After the cashier read the note, defendant pulled back his jacket to expose what appeared to be a bolstered handgun which defendant wore on his right hip. The cashier placed money from two cash registers into a bag and handed the bag to defendant. Defendant left the store without removing the gun from the holster.

The undisputed evidence further showed defendant was apprehended approximately 20 minutes after the robbery took place. Defendant stated at the time he was arrested that the gun used in the robbery was not real. A handgun was found under the rear seat of defendant’s car. The weapon, a pellet gun, was in a holster with the safety strap snapped over the hammer, which was cocked.

James Davis, an investigator for the Champaign County State’s Attorney’s office testified that the pistol was not capable of being fired in the condition in which it was found because there was insufficient carbon dioxide in the cartridge.

Defendant, who admitted at trial he committed the robbery, testified that he knew the gun was not loaded and the carbon dioxide cartridge had been exhausted for some time. He stated he was certain the gun would not operate because he tried to fire it before the robbery.

Under section 18 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2), a person commits the offense of armed robbery when he or she commits robbery while carrying or otherwise armed with a dangerous weapon. Defendant claims on appeal that since the gun used in the robbery was not shown to be loaded or operable, or used as a bludgeon to threaten the cashier, the State has not proved he was armed with a dangerous weapon, and thus he can only be convicted of simple robbery, not armed robbery.

In People v. Skelton (1980), 83 Ill. 2d 58, 414 N.E.2d 455, the supreme court held that a plastic toy revolver, as used in that armed robbery, was not a dangerous weapon within the meaning of the armed robbery statute. The court observed that many devices could be dangerous weapons if used in a manner for which they were not designed. It noted:

«o o a many objects, including guns, can be dangerous and cause serious injury, even when used in a fashion for which they were not intended. Most, if not all, unloaded real guns and many toy guns, because of their size and weight, could be used in deadly fashion as bludgeons. Since the robbery victim could be quite badly hurt or even killed by such weapons if used in that fashion, it seems to us they can properly be classified as dangerous weapons although they were not in fact used in that manner during the commission of the particular offense. It suffices that the potential for such use is present; the victim need not provoke its actual use in such manner.” 83 Ill. 2d 58, 66, 414 N.E.2d 455, 458.

The gun involved here, even if unloaded and inoperable, could have been used as a bludgeon. (People v. Hill (1977), 47 Ill. App. 3d 976, 362 N.E.2d 470.) It is not necessary for the victim to provoke the use of the weapon as a bludgeon in order for the finder of fact to find the weapon to be dangerous. (People v. Meadows (1981), 92 Ill. App. 3d 1028, 416 N.E.2d 404.) Even if defendant did not make any threat to use the gun as a club, the potential for the use of the gun in such a manner was not diminished. Because the evidence, that the gun could have been used as a bludgeon, was sufficient for the jury to find defendant was armed with a dangerous weapon, we need not consider whether the evidence was sufficient for the jury to have determined whether the gun was loaded and operable at the time of the robbery.

Prior to trial, the defendant made a motion in limine to bar evidence about what the pellets of the gun would do when fired. The motion was denied and at trial, without further objection by defendant, the State introduced testimony concerning the results of a test firing of the pellet pistol used by defendant in committing the offense. Defendant contends that the evidence concerning the test firing was irrelevant because the State’s theory was the weapon was dangerous because it could be used as a bludgeon and because the evidence indicated the pistol was unloaded and inoperable at the time of the offense. Therefore, defendant contends because of the prejudice resulting from the testimony, the conviction should be reversed and the cause remanded for a new trial.

However, even though the issue was raised by in limine motion, the sufficiency of the testimony to support the testimony was in better focus at the time the evidence was offered than at the time the in limine motion was made. Accordingly, the failure to object at the time of the admission of the evidence waived any error. (See People v. Williams (1978), 60 Ill. App. 3d 529, 377 N.E.2d 367.) Furthermore, as we later determine, the jury was properly instructed, thus negating any substantial confusion as to the issue that could have arisen from receipt of the evidence. The testimony was not otherwise prejudicial.

Defendant contends that the court’s failure to give the following tendered instruction was error:

“The fact that someone reasonably believed that the pellet pistol allegedly used in this case was a real gun should not be considered by you in deciding whether or not it was a dangerous weapon.”

However, the above instruction is not an Illinois Pattern Jury Instruction and does not affirmatively define the issues involved in this case. It is an instruction on a negative. We find that the instructions given by the court were sufficient without the above instruction.

Defendant further contends on appeal that the court gave inconsistent instructions when it gave court’s instructions Nos. 1 and 2, and therefore the conviction must be reversed and the cause remanded for a new trial. Court’s instruction No. 1 stated:

“The weapon in question, if found to be unloaded, may nevertheless be a dangerous weapon if you find that it could have been used as a club or a bludgeon, even though it was not in fact used in that manner during the commission of the particular offense.
It suffices that the potential for such use is present; the victim need not provoke its actual use in such manner.”

Court’s instruction No. 2 stated:

“In deciding whether or not the weapon used in this case was a dangerous weapon, you may consider evidence of the manner in which it was used under the circumstances of this case.”

We find the above instructions to be consistent under Skelton, as it is permissible to consider the use of the weapon in determining whether the weapon is dangerous, but the actual use of the weapon is not conclusive.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

WEBBER and LONDRIGAN, JJ„ concur.


author: Mr. JUSTICE WEBBER

text:
    LLOYD M. WELL et al., Plaintiffs-Appellees, v. BRUCE R. SCHOENEWEIS et al., Defendants-Appellants.
    Fourth District
    No. 17008
    Opinion filed October 29, 1981.

      Stephen P. Schrimpf, of Alton, for appellants.
    James R. Morrison, III, of Balsters & Morrison, of Bethalto, for appellees.
   Mr. JUSTICE WEBBER

delivered the opinion of the court:

Plaintiffs, buyers at a public auction of farm land, brought this action for specific performance against the defendant sellers. The circuit court of Macoupin County, sitting without a jury, entered judgment in favor of the plaintiffs and the defendants appeal. We affirm.

The evidence and exhibits at trial disclose that the defendants determined to sell their interests in 98 acres of farm land and to that end employed Homer Henke, a real estate salesman and broker as well as an auctioneer. Under their direction Henke prepared the sale bills and advertising on a budget set by defendants. He was to be compensated by a commission predicated on the sale price which he obtained.

The sale bills which were distributed prior to the sale contained the following:

“TERMS:
Buyer to enter into written real estate contract. Purchase price 98 acres X per acre bid price, unless buyer elects to have survey made at buyers expense. In which case, acreage determined by survey will be used. Buyer to pay ten per cent [10%] of purchase price day of sale and balance within 30 days or upon delivery of warranty deed conveying merchantable title. Buyer to have possession of tillable acreage after 1979 crops have been harvested. Buyer to have possession of remainder upon completion of Real Estate contract. Seller to pay 1979 taxes due in 1980. Buyer to pay 1980 taxes due in 1981. Sale held subject to owners approval.”

At some time after the printing of the sale bills the defendants agreed with the auctioneer that they would offer the farm on an option as well as under the terms of the sale bill. The option was to allow the highest bidder to purchase the farm with a 10-percent downpayment on the day of the sale, then quarterly payments for 10 years under a contract for deed. The defendants also decided to allow the purchaser the option of taking a landlord’s share of the crops and pay the 1979 taxes due in 1980 or to leave the landlord’s share of the crops with the defendants, requiring them to pay those taxes.

The sale was held on Saturday, July 14,1979, and was cried by Henke as previously arranged. There is no dispute that the alternative terms concerning installment payments were announced at the sale by Henke. Plaintiffs were the successful bidders and tendered to Henke their check in the amount of 10 percent of the purchase price. They and Henke then signed a printed form which bore Henke’s advertising and picture at the top and then is read in pertinent part as follows:

“PURCHASE OFFER
I certify that I am Ready, Willing and Able to pay $118,090 for the 98 Acre Farm — Schoeneweis and Evans Property Property in Macoupin County, in the state of Illinois and to Immediately Execute a SALES-PURCHASE CONTRACT, Subject to the Terms and Conditions as Publicly Announced this date:
Tulv 14,_1979
Don Well Llovd Well Brighton. III._Buyer
Olen Leonard _Buyer
Address: Brighton_
_; Phone 372-3630_
Witness: Homer Henke
[Underscoring indicates blank lines on the form; material inserted is handwritten on original.]”

The purchase offer form, as set forth above, was admitted at trial without objection. Henke testified that the check was tendered and the purchase order form executed immediately after the property was struck off to plaintiffs, but then a dispute erupted concerning the meaning of “quarterly payments.” Plaintiffs asked if such payments could be made in smaller amounts from the beginning with a “balloon” payment at the end. Henke and defendants insisted that equal payments were meant. It was then agreed that all parties would meet at the office of defendants’ attorney to settle the matter.

The meeting was held the following Wednesday with plaintiffs, defendants, defendants’ attorney, and Henke present. The evidence was in conflict as to what the various parties understood from the meeting. It is clear that the quarterly payments were supposed to be equal, but the principal difficulty arose over defendants’ proposition, broached outside plaintiffs’ presence, that the interest rate be reduced from 10 percent to 8 percent and that the gross sales price per acre be inflated accordingly; there was also some discussion about an assignment from defendants to plaintiffs of a contract for deed which was the basis of defendants’ ownership of the 98 acres. Defendants were the contract purchasers from a third party and apparently were attempting to use the assignment method as a partial payment on the gross purchase price.

In any event, a contract was drawn up with the increase in gross price per acre and a concomitant reduction in the interest rate, together with an assignment from defendants to plaintiffs of their contract for deed. Plaintiffs refused both the contract and the assignment.

Then ensued considerable correspondence between defendants’ attorney and plaintiffs about the matter. It appears that defendants would accept nothing else except the contract as drafted and the assignment. Plaintiffs stood on their bid under the conditions as announced at the sale.

Meanwhile, Henke had placed plaintiffs’ checks for the 10 percent of the purchase price in an escrow account. He testified that he had never had an escrow account before and that his past practice was to turn over the down payment to a seller on the day of sale. He further testified that it was “agreeable” to all parties that he hold the funds until the transaction was completed. On October 30, 1979, he received a letter from defendants’ attorney instructing him to return the money to plaintiffs; however, he was still holding it, on the advice of his attorney, on the date of trial.

Plaintiffs filed suit for specific performance and alternatively for damages on November 5, 1979. The trial court by an original judgment order and a later amended judgment order found in favor of the plaintiffs and against the defendants. Among its significant findings in the orders were that Henke was the agent of defendants and that the downpayment had been made to him as such; that plaintiffs had not abandoned the contract; that the Statute of Frauds did not defeat the action; and ordered the defendants to perform the terms of the contract, which it found to be: 98 acres at $1,205 per acre, the balance of the purchase price to be paid at the option of the plaintiffs either within 30 days or by contract for deed with equal quarterly payments over a 10-year period with interest at 10 percent.

A central fact in this litigation is the existence of the public auction sale of the real estate. While such procedure is not unknown in private transactions, the great majority of reported authorities concern auctions of personal property in such circumstances. The public auction of real estate appears most often in the context of judicial or execution sales. However, it is our opinion that the basic rules governing an auction are the same, whether it be for chattels or judicial sales or private sales of real estate.

The sale at auction of chattel property is now governed by section 2 — 328 of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 328). Defendants claim that the trial court improperly applied this section to the instant case in that it does not apply to real estate. The record discloses that the trial court did make reference to the Uniform Commercial Code in its letter opinion, but there is no indication that it relied on it in making its final judgment. Even if it did, this court, as a reviewing court, may affirm a judgment of a trial court for reasons other than those advanced by the trial court. Hintz v. Lazarus (1978), 58 Ill. App. 3d 64, 373 N.E.2d 1018.

The fundamental rule at common law, and now incorporated into statute insofar as chattels are concerned, is that a bid at an auction constitutes an offer to buy, the fall of the hammer or any other customary means constitutes the acceptance, and a contract is then made. In the case of judicial sales at auction, there is a variation because of the necessity of court supervision of the sale which it has ordered. The final acceptance is made by the court, not the crier of the sale, and the bid remains an offer only until confirmation of the crier’s acceptance by the court. Guettel v. Hillebrecht (1952), 347 Ill. App. 104, 106 N.E.2d 146.

At the private auction of real estate, as has been said, the contract is made upon the fall of the hammer: the bidder agrees to buy and to pay the amount of his bid; the owners agree to sell and convey at that price. The only remaining question is the terms of sale. The rule for real estate is the same as for chattels. The publicly proclaimed terms of sale are binding upon both parties. In Restatement (Second) of Contracts §28(2) (1981) it is said:

“Unless a contrary intention is manifested, bids at an auction embody terms made known by advertisement, posting or other publication of which bidders are or should be aware, as modified by any announcement made by the auctioneer when the goods are put up.”

Compare Blade v. Sloan (1969), 108 Ill. App. 2d 397, 248 N.E.2d 142; Diefenbach v. Gorney (1968), 93 Ill. App. 2d 51, 234 N.E.2d 813; Chandler v. Morey (1902), 195 Ill. 596, 63 N.E. 512.

In applying these principles to the instant case, it is clear that the contract was made when Henke struck off the property to the plaintiffs. The terms of sale were clearly set forth in the sale bills and the public announcement at the time of the auction. Defendants argue that the language in the sale bills, “Buyer to enter into written real estate contract,” makes the written contract a precondition to the acceptance of the bid. We do not agree. Any written contract would be nothing more than a memorialization of what had taken place at the auction. Defendants’ efforts to alter the terms of sale ex post facto, i.e., change of the interest rate, assignment of the contract for deed, were necessarily futile. There is nothing in either the sale bills or the public pronouncement to indicate that other and different terms were to be incorporated in the written contract. Defendants elected the auction method of disposing of their property, and they are bound by the rules governing auctions. After the hammer falls, there is no further room for negotiation, and any misgivings on the part of the sellers come too late.

Defendants argue that the contract was too indefinite to be susceptible of specific performance and cite a long list of specific performance cases where such was the holding of the courts. We have no quarrel with the doctrine, which is well established in the law, but it has no application here. None of the cases cited involved an auction sale, but were concerned with oral contracts to convey, negotiations which had not yet been completed, ambiguous terms (what is a “standard mortgage”), and the like. Specific performance cases, like will construction cases, have very little precedential value, since each must be determined on its own facts. It has been truly said that no will has a brother. The same is equally applicable to contracts.

In connection with the same contention, defendants argue strenuously that Henke was not their agent and that his actions in placing the 10-percent payment into escrow indicate that the parties were still engaged in negotiation. We find the trial court’s determination of agency fully supported by the evidence.

Henke became an escrow agent de son tort. No one instructed him to open an escrow account, and his testimony as previously recounted was that the instructions to hold the 10 percent came from the defendants and was “agreeable” to the plaintiffs. Afterwards, the defendants, through their attorney, instructed him ex parte to return the funds to the plaintiffs. If a true escrow arrangement had been contemplated, it would require the consent of both parties to its closure.

Furthermore, as has already been indicated, Henke made all the arrangements for the sale under the direction of the defendants, signed the purchase offer form on behalf of the defendants, was to be compensated by them for his work, and accepted the downpayment. A principal may not repudiate an agency which he himself has led others to believe exists. Barnard & Co. v. County of Sangamon (1901), 190 Ill. 116, 60 N.E. 109.

In short, the contract was made on the fall of the hammer, its essential terms were clear, and it was accepted by an authorized agent of the sellers. The trial court was correct in awarding specific performance.

Two further contentions of defendants merit short mention. First, they argue that plaintiffs have abandoned the contract and the trial court’s finding in this regard, that they had not, is contrary to the manifest weight of the evidence. We do not agree. The source of all the difficulty was the attempt by defendants to substitute a new contract for that made at the auction. Such action would be sufficient to excuse plaintiffs if they so desired. They have not so indicated, but on the contrary stand ready to perform under the terms of the auction agreement. Defendants’ contention has no merit.

Defendants’ final argument relates to the Statute of Frauds. They cite the familiar rule that partial payment without more is insufficient to take the case out from under the statute. However, equity will not permit one to take advantage of his own wrong. Defendants’ actions described above made further performance by plaintiffs impossible. Furthermore, when one authorizes another to make a parol contract for him, he cannot insist on the Statute of Frauds as a defense. Doty v. Wilder (1854), 15 Ill. 407.

Here the purchase offer might be considered a sufficient memorandum to satisfy the statute except that it omits the alternative method of payment, i.e., 40 equal quarterly payments, which must be proved by parol. However, we need not deal with such a problem since Henke had authority to make such a contract. Doty.

The order of the circuit court of Macoupin County directing specific performance by the defendants is affirmed.

Affirmed.

MILLS and LONDRIGAN, JJ., concur.


text:
    LEWIS D. HOPKINS et al., Plaintiffs-Appellees, v. STEPHEN R. HARTMAN et al., Defendants-Appellants.
    Fourth District
    No. 17050
    Opinion filed October 29, 1981.

      Craig J. Causeman, of Thomas, Mamer & Haughey, of Champaign, for appellants.
    Marc J. Ansel, of Erwin, Martinkus & Cole, Ltd., of Champaign, and James Koerber, law clerk, for appellees.
   Mr. JUSTICE WEBBER

delivered the opinion of the court:

This appeal presents another facet in the developing body of case law concerning the implied warranty of habitability announced by the supreme court in the landmark case of Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 389 N.E.2d 1154.

Defendants constructed, principally with their own labor, a duplex residence in Urbana, and used it as an income-producing property for approximately two years by renting it to tenants. In August 1973, plaintiffs purchased the duplex from defendants and continued to rent it out to tenants. At no time did plaintiffs themselves live on the premises, but used the property solely for income-producing purposes. In August 1978, about five years after the purchase, plaintiffs discovered certain defects. A tenant called attention to the fact that the floor was sagging and pulling away from the wall. An inspection of the crawl space underneath the area revealed that the main supports had nearly rotted away. A construction company was engaged by plaintiffs to make repairs which consisted of replacing the main beam, rebuilding the piers, regrading and leveling the crawl space, and installing sheeting and insulation. The repair bill was $5280.28.

Plaintiffs then brought suit against defendants based upon the implied warranty of habitability. The circuit court of Champaign County, sitting without a jury, entered judgment in favor of the plaintiffs and against the defendants in the amount of $5280.28, and this appeal followed.

At trial plaintiffs’ expert testified that the damage was the result of excessive moisture in the crawl space. He had inspected the property after the damage was discovered and found only two vents in the crawl space; he further testified that the insulation was installed upside down and that the vapor barrier, which should be above the insulation, was installed below it. His further testimony was that at least four ventilators should have been present, or two ventilators plus a vapor barrier on the ground as an alternative. He stated that he believed most builders in the area were putting down vapor barriers.

The defendant husband, who had done much of the construction himself, testified that he believed that two vents, plus the moisture barrier on the insulation, would be adequate. He further stated that the moisture barrier was placed below the insulation purposefully in order to take care of the problem. Other evidence on behalf of defendants came from a contractor who testified that he had built about 15 structures over crawl spaces and had never used a vapor barrier on the ground. He believed that defendants’ installation was proper.

The precise issue as framed by the pleadings and by the trial court’s order is whether the doctrine of Petersen should be extended to commercial property never occupied by the owners. We think not and reverse.

The warranty created in Petersen is at once a broad one but narrow in its application. After analogizing from the Uniform Commercial Code, the court said:

“* * ° [W]e hold that implied in the contract for sale from the builder-vendor to the vendees is a warranty that the house, when completed and conveyed to the vendees, would be reasonably suited for its intended use.” (76 Ill. 2d 31, 42, 389 N.E.2d 1154.)

It can thus be observed that the warranty is more than one of habitability; it approaches one of merchantability.

However, in describing the vendees, the court said:

““ 9 9 Many new houses are, in a sense, now mass produced. The vendee buys in many instances from a model home or from predrawn plans. ° ° ”. The vendee is making a major investment, in many instances the largest single investment of his life. 9 9 9. The vendee has a right to expect to receive that for which he has bargained and that which the builder-vendor has agreed to construct and convey to him, that is, a house that is reasonably fit for use as a residence.” (76 Ill. 2d 31, 40, 389 N.E.2d 1154.)

The person to whom the warranty runs, then, is the relatively unsophisticated buyer, making a large investment, in a structure to be used by him as a residence.

Even a superficial glance at the facts of the instant case demonstrates that plaintiffs are not within the class of persons protected by the Petersen doctrine, and we think rightly so. The motivations upon those seeking income-producing property, as well as the pressures upon them, are considerably different from those of the vendee described in Petersen. The income-seeker, whether he be purchasing common stocks, chattels, real estate, or any other form of investment, has ample opportunity to investigate, study, appraise and assess the relative merits and demerits of the subject matter and then to make a calculated judgment as to how profitable it will be. In contrast, the Petersen vendee is seeking shelter for himself and his family, oftentimes under considerable pressure brought about by job transfer, increase in family, deterioration of his former neighborhood, or other circumstances over which he has no control. If the Petersen warranty is to be extended to an investor in real estate, by extension of logic the Board of Governors of the New York Stock Exchange should warrant that no common stock traded there will ever decrease in value. The relaxation of the rules of caveat emptor and merger by the supreme court was intended to protect a consumer, not an investor.

Plaintiffs’ principal argument is that they relied heavily on the skill and ability of the defendants and that this should bring them within the rule of Petersen. We disagree. As stated above, there was ample opportunity for a second opinion, and plaintiffs apparently had no difficulty in producing an expert when the matter fell into litigation.

We are aware that courts of other States have extended the warranty to those other than the original vendees using the premises for residence purposes. (Compare Pollard v. Saxe & Yolles Development Co. (1974), 12 Cal. 3d 377, 525 P.2d 88, 115 Cal. Rptr. 648.) However, this is a policy decision which is beyond the purview of this court.

In addition to the income property distinction, we believe that an additional reason exists for confining the Petersen warranty to the factual situation described in that case. Although the Petersen decision is limited to real estate (compare Mellander v. Kileen (1980), 86 Ill. App. 3d 213, 407 N.E.2d 1137), the supreme court’s analogy to the Uniform Commercial Code indicates that it was considering houses built for sale in the manner of merchandise. It was not considering structures built for the builder’s own use.

In the latter case it is extremely unlikely that an individual would be tempted to cheat himself by using shabby construction and materials.

It is uncontroverted in the instant case that the defendants constructed the duplex originally for their own use.

Since we have concluded that the Petersen warranty does not include the plaintiffs in this case, we need not reach the additional issues raised, viz., the intervening rental between construction and sale, the question of limitations, the question of notice, and the weight of the evidence.

The order of the circuit court of Champaign County is reversed.

Reversed.

TRAPP, P. J., and MILLS, J., concur.


author: Mr. JUSTICE UNVERZAGT

text:
    SHAY GOLDSTEIN, Plaintiff-Appellant, v. STANLEY KANTOR, D.D.S., Indiv. and d/b/a Stanley Kantor, D.D.S., a Professional Corporation, DefendantAppellee.
    Second District
    No. 81-52
    Opinion filed October 29, 1981.
    Nancy J. Gleason and Philip J. McGuire, both of Dowd and Dowd, of Chicago, for appellant.
    Edward A. Puisis and Robert L. Snook, both of Waukegan, for appellee.
   Mr. JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff appeals from the entry of a summary judgment in favor of the defendant dentist in a malpractice suit in the circuit court of Lake County.

The plaintiff was a patient of the defendant from February 2,1976, to October 18, 1978. In her complaint she alleges that the defendant during this period performed “certain dental work and reconstructive work on plaintiff’s mouth” and that defendant was guilty of professional negligence in his diagnosis of the plaintiff’s dental condition and in grinding and reconstruction of plaintiff’s teeth and in affixing ill-fitting prostheses. Plaintiff alleges that as a result of such negligence she suffered pain and was not able to pursue her normal occupation and way of life.

The complaint was filed in October 1979, about one year after the plaintiff had last been treated by the defendant. The defendant answered by a general denial in November 1979 and in January 1980 submitted interrogatories to be answered by the plaintiff. She failed to answer the interrogatories, and in April 1980 the defendant filed a motion to dismiss the case for failure to do so. The case was dismissed, but upon motion of the plaintiff the dismissal order was vacated.

The plaintiff then filed answers to the defendant’s interrogatories in which she stated that the particular acts or omissions of the defendant which constituted the negligence complained of were (1) failure to pull certain teeth necessary for proper fit of the splint; (2) failure to note damage to other teeth caused by ill-fitting prostheses; (3) failure to note a crack in the permanent splint; (4) failure to smooth cement used in affixing the splint; (5) failure to reduce or repair the splint following surgery. The answer to the interrogatory as to her injuries resulting from such negligence alleged she had suffered two cracked permanent caps, an ulcerated tongue and cheek, the inability to chew or eat and the substantial additional dental work required by other dentists.

In her answer to the defendant’s interrogatory, the plaintiff stated that the facts upon which she predicated the allegations of negligent dental work by the defendant rested on knowledge gleaned from “subsequent diagnosis and treatment” by other dentists. She then listed the names and addresses of four subsequent treating dentists whose bills up to that time amounted to $2,566.

The defendant served notice that he intended to take the plaintiff’s discovery deposition, and the plaintiff by letter agreed to appear for same on August 26, 1980, and in that letter noted the plaintiff’s difficulty in obtaining a narrative report from the present treating dentist as to what was necessary to correct the plaintiff’s dental condition following the defendant’s work on her mouth. Such discovery deposition was never taken, but in September 1980 the defendant filed his affidavit as an expert reciting the details of his treatment of the plaintiff and stating that “in treating the plaintiff this affiant possessed and applied the knowledge and used the skill and care that is ordinarily used by reasonably well qualified dentists in the locality in which he practices or in similar localities in similar cases and circumstances.” The defendant appended this affidavit to a motion for summary judgment. In the affidavit the defendant conceded that there had been a disagreement between him and a periodontist who was also treating the plaintiff contemporaneously with the defendant’s treatment, as to the advisability of retaining two of the plaintiff’s teeth, the periodontist, Dr. Levitt, believing they should be removed and the defendant believing they should be retained. These teeth were alleged in the complaint to be one of the sources of the plaintiff’s later trouble.

The court gave the plaintiff 30 days to respond to the defendant’s motion for summary judgment, and the plaintiff not having done so, the court granted summary judgment in the defendant’s favor. Following the granting of summary judgment against the plaintiff, she filed a motion to vacate same in which she stated that she had been unable to secure an expert witness but was continuing to seek one and that she expected to be able to submit the narrative report of her present treating dentist upon completion of such treatment and that such report would assist plaintiff in obtaining an expert witness. The trial court denied the motion to vacate the summary judgment.

In this appeal, the plaintiff contends that the affidavit of the defendant — which was the only affidavit filed by either side — itself reflected the existence of a dispute as to a material fact in that the defendant admitted in that affidavit that there had been a disagreement between him and the periodontist as to the advisability of retaining two of the plaintiff’s teeth which were being treated. The plaintiff asserts that there was a material issue of fact raised thereby as to whether or not the defendant was negligent in not removing such teeth. At least it is claimed that such a possibility of negligence is suggested and should prevent the rendering of a summary judgment.

Moreover, the plaintiff contends, an affidavit by an expert witness who is himself the defendant in a malpractice case should not be accepted by the court as a basis for summary judgment. While the defendant has a right to submit an affidavit on his own behalf, the plaintiff contends that more should be required for a summary judgment than the defendant’s own evaluation of whether or not he used the standard of care required by dentists in the locality in question for treating a similar case.

The case at bar is somewhat parallel in its facts to the case of Mendelson v. Feingold (1979), 69 Ill. App. 3d 227, previously considered by this court. In that case the plaintiff alleged he had suffered kidney damage by reason of having taken the drug prednisone after being advised by the defendant doctor that he could safely do so, although he had a history of kidney disorder. The plaintiff was unable during discovery procedure to produce the name of an expert medical witness in his behalf and after being ordered to do so by the court supplied the name of Dr. Bentley from whom he was awaiting a report. Dr. Bentley, however, did not furnish the expected report. The plaintiff sought to depose the defendant, but evasive action by the defendant delayed this. The plaintiff then filed with the court the report of a professor of pharmaceutical sciences which contained conclusions favorable to the plaintiff’s case. The defendant filed a motion to dismiss for failure to comply with discovery rules, citing Supreme Court Rule 219(c), and the motion was granted. Upon appeal, this court reversed, holding that although the scope of discovery was broad in Illinois the rules do not require a party to name or produce a witness where, without fault of the plaintiff, no such witness is available to him. While the Mendelson case turned on a motion to dismiss, whereas the present case was decided on a motion for summary judgment, the plaintiff cites the language of Mendelson as follows:

“Defendant also relies upon cases which have upheld the granting of summary judgment where facts have been established entitling them to summary judgment as a matter of law. [Citation.] While defendant here did initially move for summary judgment, the trial court did not rule upon that motion and it is not before us. We must note, however, that had the court granted summary judgment without first permitting plaintiff to depose defendant and the two treating physicians such judgment would necessarily be set aside as erroneous.” 69 Ill. App. 3d 227, 235.

This language would be persuasive if the facts were the same here as in Mendelson. There is, however, an important difference between the two cases. In Mendelson the plaintiffs had attempted on more than one occasion to depose the defending physicians and had been thwarted by their delaying tactics, which the trial court had permitted. As the Mendelson opinion noted “plaintiffs here were never permitted to depose either defendant or two treating physicians although they had attempted to do so as early as August 1976.” (69 Ill. App. 3d 227, 234.) The effect of the series of orders entered by the trial court was to require plaintiffs to obtain a medical expert witness who would state in writing that the defendant was negligent in his treatment of Mr. Mendelson before plaintiffs would be allowed to proceed with their own discovery.

In the case before us, however, the plaintiff made no attempt to depose the defendant and filed no affidavits whatsoever on her own behalf. The only affidavit on file was that of the defendant describing in detail his treatment of the plaintiff and expressing his opinion as an expert that in such treatment the defendant “possessed and applied the knowledge and used the skill and care that is ordinarily used by reasonably well qualified dentists in the locality in which he practices or in similar localities in similar cases and circumstances.”

The plaintiff had ample opportunity to file counteraffidavits on her own behalf or to depose the defendant relative to his treatment of the plaintiff, but failed to do so. No reply was made to the motion for summary judgment filed on September 23, 1980, by the defendant although the plaintiff was allowed 30 days to do so, nor was any motion for a continuance sought by the plaintiff after notice that the defendant woúld seek a ruling on the motion on November 18 was received. In view of the lack of any affidavit by the plaintiff, the trial court had no issue of a material fact before it when the defendant’s motion for summary judgment was filed and summary judgment was granted accordingly.

The plaintiff contends in this appeal that an issue as to a material fact was raised by the defendant’s own affidavit in that the defendant’s affidavit admitted that the periodontist had disagreed with the defendant as to the retention of two of the plaintiff’s teeth, which the defendant thought should be, and which were, retained. We do not regard this difference of opinion, if it existed, as evidence of an issue as to the medical malpractice of the defendant. The possibility of a different treatment from the one performed does not per se raise a question as to the defendant’s professional competence, and we do not regard the suggested difference in opinion as amounting to a material issue of fact. See Walski v. Tiesenga (1977), 53 Ill. App. 3d 57; Blanchette v. Martell (1977), 52 Ill. App. 3d 1029; Ybarra v. Cross (1974), 22 Ill. App. 3d 638.

We think the trial court did not err in granting summary judgment for the defendant under the particular circumstances of this case.

The judgment of the circuit court of Lake County is affirmed.

HOPE and NASH, JJ., concur.


text:
    HILL BEHAN LUMBER COMPANY, Plaintiff-Appellant, v. AMERICAN NATIONAL BANK & TRUST COMPANY OF WAUKEGAN, Trustee, et al., Defendants-Appellees.
    Second District
    No. 81-166
    Opinion filed October 29, 1981.

      Benjamin Daidone, of Daidone and Daidone, of Chicago, for appellant.
    W. Howard Swanson and Donna R. Henderson, both of Williams, Swanson and Henderson, of Waukegan, for appellees.
   Mr. JUSTICE UNVERZAGT

delivered the opinion of the court:

Hill Behan Lumber Company, plaintiff (hereinafter referred to as Hill Behan), appeals from the judgment of the circuit court of Lake County in favor of the defendant American National Bank & Trust Company of Waukegan (hereinafter the bank) in an action to foreclose a mechanics’ lien.

Hill Behan furnished lumber and other materials for an addition to a dwelling, the title to which was held in a land trust by the bank. The beneficiaries of the trust were Mayme Taylor and Virginia Reaser, mother and daughter. The house had six rooms on the first floor and six rooms on the second floor. There were two kitchens, but only one entrance, front and back, and an open stairway from the first to the second floor. There was only one telephone. The testimony was that only mother and daughter or grandmother and granddaughter had occupied the house since 1954.

Hill Behan, as subcontractor, furnished material to Michael Zervos, a contractor, who had signed a contract with Howard Reaser, Virginia’s husband, for an addition to the dwelling. Zervos and Reaser had a falling out, and Zervos quit the job. He had been paid by Reaser for certain work and material used on the job before he quit but had not paid Hill Behan for the material used in such work. Hill Behan, being unable to collect from Zervos, filed the mechanics’ lien which is the subject of this suit against the bank as trustee and record owner of the dwelling into which Hill Behan lumber was incorporated pursuant to Zervos’ remodeling job.

The bank defended on the ground that the building in question was an owner-occupied single-family residence and that the lien was defective for failure of Hill Behan to give the 14-day notice required of a subcontractor in filing a mechanics’ lien against an owner-occupied single-family residence. Such notice is required by sections 5 and 21 of “An Act relating to contractors’ and material men’s liens, known as mechanics’ liens” (Ill. Rev. Stat. 1979, ch. 82, pars. 5 and 21). These sections provide in part as follows:

“It shall be the duty of each subcontractor who has furnished, or is furnishing, materials or labor for an existing owner-occupied single-family residence, in order to preserve his lien, to notify the occupant either personally or by certified mail, return receipt requested, addressed to the occupant or his agent at the residence within 14 days from his first furnishing materials or labor, that he is supplying materials or labor; provided, however, that any notice given after 14 days by the subcontractor shall preserve his lien, but only to the extent that the owner has not been prejudiced by payments made prior to receipt of the notice.” Ill. Rev. Stat. 1979, ch. 82, pars. 5 and 21.
“The notification shall include a warning to the owner that before any payment is made to the contractor, the owner should receive a waiver of lien executed by each subcontractor who has furnished materials or labor.” Ill. Rev. Stat. 1979, ch. 82, par. 21.

It is admitted by Hill Behan that such 14-day notice was not furnished to either the occupants and trust beneficiaries, Reaser and Taylor, or to the bank. Hill Behan contends, however, that the notice was not required, that it did serve the usual notice of a mechanics’ lien required of a subcontractor under section 24 of the Mechanics’ Lien Act and that it thus complied with the statute. Section 24 only requires notice to the owner or his agent within 90 days of furnishing the material. (Ill. Rev. Stat. 1979, ch. 82, par. 24.) Since, Hill Behan contends, the property in question is not a single-family owner-occupied residence, the 90-day notice provision applies and was complied with, making the lien valid. Hill Behan contends the dwelling is not owner-occupied because the actual titleholder is the trustee, the bank, and, in addition, it is not a single-family residence but it is in reality a two-family apartment building.

We will deal only briefly with the contention that the building in question is not owner-occupied because the “owner” is the record titleholder, which is the bank under a land trust. This court noted in Dunlop v. McAtee (1975), 31 Ill. App. 3d 56, 59, where this issue was presented that:

“The Illinois courts have repeatedly and consistently held that a holder of an equitable interest in the land, including a beneficiary under a land trust, is an ‘owner’ within the meaning of the Illinois Mechanics’ Lien Act, and we again so hold.”

This holding was confirmed by this court in the more recent case of Fischer v. McHenry State Bank (1979), 74 Ill. App. 3d 509, citing Dunlop. No more need be said on this point.

The second argument of Hill Behan is that the 14-day notice required to be sent to the owner under sections 5 and 21 of the Mechanics’ Lien Act is not applicable to this case because the building in question is not a single-family dwelling. Hill Behan admits it did not send the notice required by these sections. In support of this contention, Hill Behan points to the fact that there were two complete kitchens in the dwelling — one on each floor — as well as bedrooms on each floor, so that it was possible to use the building as two separate apartments. Moreover, Hill Behan points out, Mayme Taylor, the grandmother, who was co-owner of the property with her daughter, Virginia Reaser, lived upstairs and her daughter, and before that her granddaughter, lived with their respective children downstairs, thus constituting two separate families, not one single family.

On the other hand, the dwelling had only one front and one back entrance and the stairway to the upstairs was not enclosed. Mayme Taylor testified there was only one telephone listed at this address and that meals, except for breakfast, were usually eaten together on the second floor, since the second-floor kitchen was larger. The dwelling had been occupied for over 20 years by the same family group, that is by the grandmother, Mayme Taylor, and her daughter and granddaughter and the granddaughter’s children, or her daughter, Virginia Reaser, and Virginia’s children. The premises had never been rented to any outside persons. The chief building inspector of Gurnee, where the building was located, testified that the location was in an area zoned R-2 and there was no evidence that this was a nonconforming use.

The trial court, after hearing the testimony, found that the property was a single-family owner-occupied dwelling and that the 14-day notice specified in sections 5 and 21 of the Mechanics’ Lien Act applied and that such notice had not been sent. The trial court therefore held that no mechanics’ lien attached to the property.

The trial court’s judgment was clearly not against the manifest weight of the evidence. While there were some facts from which it could be argued that this was a two-family residence, there were other facts, more persuasive, supporting the trial judge’s finding that it was an owner-occupied single-family dwelling. We think the particular situation here was within the common concept of what constitutes a one-family dwelling. Moreover, the Mechanics’ Lien Act is in derogation of the common law and is to be strictly construed. (Edward Hines Lumber Co. v. Dell Corp. (1977), 49 Ill. App. 3d 873; M. L. Ensminger Co. v. Chicago Title & Trust Co. (1979), 74 Ill. App. 3d 677.) In this case, a strict construction of sections 5 and 21 of the Mechanics’ Lien Act in connection with the notice required for enforcing the lien as a primary lien against the premises seems justified.

For the foregoing reasons the judgment of the circuit court of Lake County is affirmed.

Judgment affirmed.

HOPF and NASH, JJ., concur.


author: Mr. PRESIDING JUSTICE SCOTT

text:
    BEVERLY PIERCE, Plaintiff-Appellee and Cross-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant and Third-Party Plaintiff-Appellant and Cross-Appellee.—(GUY ATKINSON COMPANY, Indiv. and d/b/a Walsh Construction Company Division, Third-Party Defendant-Appellee.)
    Third District
    No. 80-671
    Opinion filed October 20, 1981.
    — Rehearing denied December 14, 1981.
    Abigail K. Spreyer, Jerome H. Torshen, Aaron M. Spiezer, and Janet F. Gerske, all of Jerome H. Torshen, Ltd., and Garretson & Santora, both of Chicago, for appellant Commonwealth Edison Company.
    Rex K. Linder and Gary D. Nelson, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee Guy Atkinson Company.
    John F. Vickers, of Peter F. Ferracuti & Associates, of Ottawa, for appellee Beverly Pierce.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

These appeals arise from a jury trial held in the La Salle County Circuit Court. The plaintiff, Beverly Pierce, sought compensation for personal injuries she suffered, while the defendant, Commonwealth Edison Company, sought indemnity from the third-party defendant, Walsh Construction Company. The jury determined that Commonwealth Edison was liable to Pierce, but was not entitled to indemnity from Walsh. It appeals both of those decisions, while the plaintiff, Pierce, cross-appeals on a separate issue.

Commonwealth Edison began building a nuclear power plant in La Salle County in 1972. One of the contractors on the construction project was Walsh Construction. It served as the structural and super-structural contractor. The building project was bid on a cost plus fixed-fee basis because of the rapidly changing technology in the nuclear energy industry. To reimburse Walsh and other contractors for the cost of equipment used on the job site, Edison used one of two methods. For one such method, the contractor was paid a rental rate for the appraised value of the equipment. With the alternative method, Edison would reimburse the contractor for the purchase price of the equipment with the agreement that the equipment would be conveyed to Edison upon the completion of the construction.

As a part of Walsh’s contract, it agreed to provide a first-aid station at the job site. In 1974, as a result of a request by the union workers employed at the site, it was determined that an emergency vehicle was required in conjunction with the first aid station. After consultation with Edison’s project manager, Leo Burke, a 1968 Dodge van was purchased by Walsh and adapted for use as an ambulance. Instead of paying the cost of the ambulance through monthly rental payments, Edison opted to reimburse Walsh for the purchase price of the van.

The plaintiff was employed by Walsh as a nurse in the first aid station. On February 10,1976, a carpenter on the job site was injured and brought to the first aid station where plaintiff was on duty. While transporting the injured carpenter to the Ottawa Community Hospital in the converted Dodge van, and while making a sharp u-turn, the side doors in the rear portion of the van came open. The plaintiff, who was administering oxygen to the injured worker with her hand, reached across her patient and with her left hand held the door shut for the remainder of the trip to the hospital. As she moved to grasp the errant door, the plaintiff felt a sharp pain in her back. Plaintiff contends that her pain was the symptom of an injury that led to her suffering from degenerative disc disease, prompting surgery for a laminectomy in 1976 and again in 1977. Late in the year following the second surgery, the plaintiff filed the previously referenced action against Edison. In her complaint filed with the La Salle County Circuit Court, Pierce alleged that Edison was negligent in failing to provide a safe and suitable ambulance for emergency use at the first aid station. In its answer, Edison alleged that plaintiff’s injuries were the result of Walsh’s negligence, not Edison’s. Thus, in a third-party action, Edison sought indemnity from Walsh on an active-passive negligence theory.

While pursuing the common law negligence action against Edison, the plaintiff was simultaneously seeking a recovery under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 etseq.) against her employer, Walsh Construction. Shortly before the commencement of the trial, the plaintiff and Walsh made an agreement in settlement of any potential liability Walsh might have for plaintiff’s injuries under the Workmen’s Compensation Act; however, the agreement included provisions which potentially affected the common law negligence action pending in the La Salle County Court. The agreement was summarized as follows:

(1) In exchange for a waiver of plaintiff’s right to reopen and have further review of any settlement of her workman’s compensation claim, Walsh paid a lump sum settlement in the amount of $60,000.
(2) In addition, Walsh waived its right of subrogation under the Workmen’s Compensation Act which entitled it to be repaid from any amounts recovered from Edison in the La Salle County lawsuit, including subrogation rights for the $60,000 lump sum settlement and for $30,000 paid previously for disability and medical benefits.
(3) In exchange for Walsh’s waiver of its subrogation rights, plaintiff agreed that if she recovered a judgment against Edison in the negligence action, and Edison was successful on its third-party action against Walsh, then plaintiff would not execute on the judgment against Edison or Walsh.

The decisions rendered in the circuit court regarding this agreement are central to the determination we make today.

The issues raised by the complaint and the third-party complaint were tried in a single proceeding by the La Sálle County court, despite plaintiff’s motion for severance. Before the trial began, plaintiff sought, through a motion in limine, to prohibit any reference during the trial to her agreement with Walsh. The court reserved ruling on the motion until the trial had begun. Then, when counsel for Edison sought a determination on the motion, the trial judge concluded that the agreement was in the nature of a covenant not to sue. For that reason no examination of witnesses concerning the agreement was permitted. Edison urges us to find that this decision resulted in reversible error.

Edison characterizes this agreement as something akin to the loan receipt agreement which was approved by the supreme court in Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 303 N.E.2d 382. The Reese court held that an agreement between the plaintiff and one of two joint defendants was valid so long as the court permitted questioning of witnesses concerning possible bias arising because of the agreement. Where, as here, no such questioning was permitted, Edison believes a new trial must be granted.

On the other hand, the plaintiff and the trial court characterized this agreement as a covenant not to sue. It has been held that covenants not to sue are generally inadmissible before a jury (Ryan v. Monson (1961), 33 Ill. App. 2d 406, 179 N.E.2d 449; Tresch v. Nielsen (1965), 57 Ill. App. 2d 469, 207 N.E.2d 109), and error occurs when evidence of a covenant is admitted. It was thought that evidence of the covenant would interfere with the jury’s function of assessing total damages, and any possibility of double recovery was simply obviated if the court reduced the amount of the verdict by the amount of the settlement before entering judgment. (Ryan v. Monson; De Lude v. Rimek (1953), 351 Ill. App. 466, 115 N.E.2d 561.) Although covenants were determined to be inadmissible on the limited issue of assessing damages (Ryan v. Monson; De Lude v. Rimek), their inadmissibility has been more generally construed. (American State Bank v. County of Woodford (1977), 55 Ill. App. 3d 123, 371 N.E.2d 232.) Because of the differing treatment given by the courts to loan receipt agreements and covenants not to sue, both Edison and Pierce argue that the agreement in the case at bar more closely resembles one than the other.

The difficulty in characterizing the instant extrajudicial agreement as either a loan receipt or a covenant arises because, quite simply, it is neither. On a prior occasion we observed that there “exist a whole family of such agreements, with the number of variations ‘limited only by the ingenuity of counsel * 0 (Schell v. Albrecht (1978), 65 Ill. App. 3d 989, 991, 383 N.E.2d 15, 17.) As that ingenuity spawns an ever increasing number and variety of hybrid agreements, the futility of attempting to label each mutation becomes increasingly apparent. Rather than trying to fit the new casting into one of several old molds, the courts have enumerated several policy considerations which should be reviewed in the context of each agreement. Schell v. Albrecht. See also Reese v. Chicago, Burlington & Quincy R.R. Co.; Gatto v. Walgreen Drug Co. (1975), 61 Ill. 2d 513, 337 N.E.2d 23; Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill. 2d 445, 322 N.E.2d 58; Casson v. Nash (1978), 74 Ill. 2d 164, 384 N.E.2d 365.

One such policy which the .trial court should consider as it scrutinizes agreements of this genre was set forth in Casson v. Nash:

“[W]hen a witness whose interest in the outcome of the case is not apparent to the jury may be influenced by the existence of a loan-receipt agreement, the jury may properly consider the effect of the agreement on the credibility of that witness.” (74 Ill. 2d 164, 169, 384 N.E.2d 365, 367.)

Where litigants are prohibited from presenting evidence of bias induced by extrajudicial agreements, reversible error results. (Gatto v. Walgreen Drug Co.) This policy consideration occupies our attention as we consider the agreement between Pierce and Walsh.

In the action prosecuted by Edison against Walsh, the central question was one of control over the ambulance. At issue was whether the primary responsibility for supervision and maintenance of the converted van rested with Edison or Walsh, and whether one entity or the other actually exercised active control over the vehicle before the date of Mrs. Pierce’s injury. A fact-finder making a determination on this central issue would be greatly persuaded by the testimony of an employee at the first-aid station whose job uniquely caused her to be in and around the ambulance on a regular basis. The plaintiff Pierce was such an employee, and her interest in the third-party action would not have been apparent to the jury unless questioning concerning the Pierce-Walsh agreement were allowed. Indeed, the monetary success of Pierce’s action against Edison depended just as much on the outcome of the third-party action as it did on a verdict rendered for Pierce. We prefer to believe that the plaintiff’s testimony would have been unchanged absent the agreement with her employer. Nevertheless, in order to afford Edison a fair trial, it should have been permitted to call to the jury’s attention the plaintiff’s motive for offering testimony biased in favor of Walsh. Further, because the testimony of Pierce would be highly persuasive, we conclude that the failure to permit an inquiry into the possible bias of the witness would constitute prejudicial error requiring a new trial.

Other errors were alleged in the brief filed by Edison before this court. To the extent that those errors deal with the sufficiency of the evidence, we decline to consider them here, as upon retrial the evidence before the jury may differ. In addition, it is urged that sustaining a verdict for the plaintiff, Pierce, without deducting the. monies paid to Pierce by Walsh would contravene the policies of this state which disallow double recovery by tort plaintiffs. Again, a different verdict on retrial may render this issue moot, but it should be noted that our courts have universally held that a workmen’s compensation recovery is money received by the injured party from a collateral source which should not offset a judgment in an action based on common law negligence. (Beaird v. Brown (1978), 58 Ill. App. 3d 18, 373 N.E.2d 1055; Bryntesen v. Carroll Construction Co. (1963), 27 Ill. 2d 566, 190 N.E.2d 315; Hosey v. State (1965), 25 Ill. Ct. Cl. 144.) Finally, the plaintiff on her cross-appeal postures that it was error to deny her leave to file an amended complaint four days into the trial. If, on retrial, this leave is sought in a more timely manner, we believe the trial court may exercise its discretion to reach a different result. For that reason, to consider plaintiff’s argument is now premature.

After reviewing the oral and written arguments of counsel, and in reliance on the authorities hereinbefore set forth, we conclude that the defendant, Commonwealth Edison Company, is entitled to a new trial of this cause.

Reversed and remanded.

HEIPLE and STOUDER, JJ., concur.

       Representative of that testimony is the following exchange between the plaintiff and Walsh’s attorney:
      “Q: This day to day contact that you had with Commonwealth people would include periodic complaints by you about the ambulance, correct:
      Á: Correct.
      Q: And these — let me ask you this; why would you make complaints to Commonwealth?
      A: They were right there. They would be there when I got right back from one of these incidents and I knew that they really had control ” °