author: JUSTICE TRAPP

text:
    RON SMITH TRUCKING, INC., Petitioner-Appellant, v. ILLINOIS COMMERCE COMMISSION, Respondent-Appellee.—(Douglas Transit, Inc., Intervenor-Appellee.)
    Fourth District
    No. 4—82—0672
    Opinion filed May 13, 1983.

      Gary L. Smith, of Douglas G. Brown, P.C., of Springfield, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Hercules F. Bolos, Special Assistant Attorney General, and Mary Kathleen Nolan, Assistant Attorney General, of counsel), for appellee Illinois Commerce Commission.
    Robert T. Lawley, of Routman & Lawley, Ltd., of Springfield, for appellee Douglas Transit, Inc.
   JUSTICE TRAPP

delivered the opinion of the court:

Petitioner Ron Smith Trucking (Smith) appeals an order of the circuit court of Sangamon County, sitting in administrative review, which affirmed a decision of the Illinois Commerce Commission (Commission) to grant Douglas Transit, Inc. (Douglas), a dismissal of its application for authorization to transfer a controlling stock interest pursuant to section 18 — 309 of the Illinois Motor Carrier of Property Law (Ill. Rev. Stat. 1981, ch. 951/2, par. 18 — 309). We affirm.

On March 5, 1980, Gary Armstrong, Harold Smith, Fred Andres, and Clarence Alley filed with the Commission a petition for authorization to sell a controlling interest of Douglas Stock to Andres and Alley. The petition alleged that Armstrong and Smith were owners of 55% and 45%, respectively, of the shares of Douglas and were negotiating with Andres and Alley to sell a total of 50% of the stock with the result that all four would own 25% of the shares. Petitioner Smith, along with a number of other regulated motor carriers, was granted leave to intervene in the proceedings, and nine separate hearings were conducted on the application for transfer. The bulk of the evidence received concerned the scope of Douglas’ operating authority, its alleged abandonment of such authority, and the alleged unlawful control of Douglas by Harold Smith. On May 29, 1981, the hearings were concluded and the matter was marked, “Heard and taken for decision.”

On November 18, applicants Armstrong, Smith, Andres and Alley filed a petition to withdraw the application for acquisition of control with the Commission on the grounds that adverse economic conditions and the financial inability of the purchasers prevented the parties from consummating the sale of the stock. Objections were filed to the petition to withdraw by several intervenors, but the Commission granted the request and dismissed the petition. Smith moved for rehearing which was denied, and the circuit court of Sangamon County affirmed the Commission’s decision.

The main contention advanced by Smith on appeal is that the Commission erred in refusing to make findings on its claim that Douglas had abandoned its authority to transport general commodities, had been unlawfully controlled by Harold Smith, and had unlawfully leased its authority in violation of sections 18 — 309 and 18 — 308 of the Illinois Motor Carrier of Property Law. Petitioner argues that such violations were shown by the evidence, but whether they were is not at issue in the present appeal. The only issue to be decided by this court is whether the Commission erred in declining to make findings on those issues.

Section 18 — 309 of the Illinois Motor Carrier of Property Law provides, inter alia, that before a controlling interest in a motor carrier may be transferred to another carrier or person, the parties requesting such action must petition the Commission for authority therefor and demonstrate with affirmative proof that the purchaser is fit, willing, and able, that the operations of the proposed seller have not been abandoned, suspended, or discontinued, and that the transaction proposed will be consistent with the public interest and declaration of policy set forth in section 18 — 101 of the Illinois Motor Carrier of Property Law (Ill. Rev. Stat. 1981, ch. 95V2, par. 18 — 101). Jenkins Truck Line, Inc. v. Illinois Commerce Com. (1981), 96 Ill. App. 3d 650, 422 N.E.2d 640.

Under section 18 — 309, the Commission’s jurisdiction to make findings on these issues is conditioned upon the presence of, inter alia, an application to transfer a controlling interest. As set forth in section 18 — 309(3):

“When a transaction is proposed under this section, the carrier or the person seeking authority therefor shall present an application to the Commission. The application shall contain a copy of the contract, including the terms of the proposed transaction, and an abstract of shipments performed by the transferring party within the last year prior to the date of such contract. The Commission shall, after due notice, set the application for a public hearing to determine whether the findings specified below may properly be made. When the Commission finds that (a) the purchaser or lessee is fit, willing and able, (b) that the operations of the proposed seller or lessor have not been abandoned, suspended, discontinued or dormant and (c) that the transaction proposed will be consistent with the public interest and the declaration of policy set forth under Section 18 — 101, it shall enter an order approving and authorizing the transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable.” Ill. Rev. Stat. 1981, ch. 95V2, par. 18-309(3).

It is Smith’s contention that notwithstanding the abandonment of the proposed transfer by the applicants the Commission was required to make those findings required by statute as a condition of transfer. It relies on Salon Trucking Co. v. Illinois Commerce Com. (1980), 84 Ill. App. 3d 604, 406 N.E.2d 46; sections 18 — 201(5) and (6) of the Illinois Motor Carrier of Property Law (Ill. Rev. Stat. 1981, ch. 95V2, pars. 18 — 201(5), (6)), and section 79 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. lll2/3, par. 83).

In Salon, Salon Trucking and Salon Piggyback Service filed an application for the transfer of a certificate of public convenience and necessity with the Illinois Commerce Commission pursuant to section 18 — 309. Following hearings on the transfer, the Commission granted the request but modified the scope of operating authority originally contained in the certificate to reflect the abandonment of some operations by Salon Trucking. Both the transferor and the transferee subsequently moved to vacate the transfer order and reinstate in full Salon’s operating authority because the sale was not completed. The Commission vacated the transfer order but declined to reinstate Salon’s original authority. Salon then filed a petition for rehearing which was granted but, before the hearing, the Commission issued a rule to show cause why Salon’s certificate to operate should not be revoked for failing to obtain the Commission’s approval to abandon authority as required by section 18 — 308. (See Ill. Rev. Stat. 1981, ch. 95V2, par. 18 — 308.) Following rehearing, the modified order limiting Salon’s operating authority was affirmed.

Salon then sought review in the circuit and appellate courts on • the theory that the Commission lacked the authority to modify its operating authority under section 18 — 309 when the proposed transfer had been abandoned. The appellate court disagreed, holding that since the Commission could, on its own initiative, enforce the provisions of the Act under section 18 — 307 (Ill. Rev. Stat. 1973, ch. 951/2, par. 18— 307), the fact that the sale had not been completed did not impair the Commission’s jurisdiction to modify Salon’s certificate. The appellate court’s rationale was that the Commission possessed the authority to investigate violations under section 18 — 307 and no purpose would be served by holding the present order unlawful only to require another hearing at which the same issues would again be litigated.

Smith argues that Salon is controlling and requires the Commission to make findings on the issues presented in the proceeding to transfer control under section 18 — 309. We disagree.

At bar, it is also clear that a proceeding under section 18— 307 could be brought by the Commission. The fact which distinguishes Salon from the present proceeding, however, is simply that the question in Salon was whether the Commission had jurisdiction to decide the issues, whereas at bar petitioner asserts that the Commission had a duty to exercise its jurisdiction. Neither section 18 — 309 nor Salon indicates that the Commission has a duty to make the findings requested by petitioner.

Further support for the Commission’s position is found in this court’s decision in Service Transportation Lines, Inc. v. Illinois Commerce Com. (1979), 77 Ill. App. 3d 52, 395 N.E.2d 1119, which also addressed a contention that the Commission was required to make findings under section 18 — 309 of the Illinois Motor Carrier of Property Law. In that case, certain applicants filed a petition with the Commission requesting approval of a sale of a 40% interest in a motor carrier. Several intervenors appeared before the Commission and requested the hearing examiner to make findings under section 18— 309 regarding the applicant’s abandonment of certain operating authority. The Commission found that it was not necessary that it make the findings under section 18 — 309 since those findings were required only when a transfer of control was proposed which the sale of a 40% interest was not. On appeal, we upheld the Commission, stating:

“We hold that the Commission may first determine whether a transaction at issue is one contemplated by section 18 — 309 before it is required to undertake hearings and make findings pursuant to that section.” (Emphasis added.) 77 Ill. App. 3d 52, 55, 395 N.E.2d 1119, 1121.

Smith attempts to distinguish this case and claims, “[tjhere is no issue in the present case that the proposed transaction was not within the scope of 18 — 309.” This is an understatement at best. It overlooks the more important point that there was no proposed transaction at the time the Commission was ready to decide the propriety of granting the transfer request. Thus, as in Service Transportation, nothing was presented within the scope of section 18 — 309 to be decided. No transfer of control was present in either case.

The other authorities upon which Smith relies are sections 18— 309(6) and 18 — 201(5) of the Illinois Motor Carrier of Property Law (Ill. Rev. Stat. 1981, ch. 951/2, pars. 18 — 309(6), 18 — 201(5)) and section 79 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. lll2/3, par. 83).

Neither section 18 — 309(6) nor section 18 — 201(5) imposes a duty on the Commission to investigate claims of unlawful control or abandonment absent a proper complaint to the Commission. These sections provide the Commission with discretionary authority to investigate violations of the Illinois Motor Carrier of Property Law but nowhere require the Commission to investigate or make findings. Section 18 — 201(5) provides, in part:

“Upon complaint in writing by a person, organization or body politic, the Commission shall, or upon its own motion may without complaint, investigate whether a motor carrier of property or a person otherwise required under the provisions of this Chapter 18 to comply with this Chapter 18 has failed to comply with a provision of this Chapter 18 or a requirement established pursuant thereto.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 95V2, par. 18-201(5).

The most persuasive authority favoring Smith’s position is section 79 of the Public Utilities Act which is incorporated in the Illinois Motor Carrier of Property Law by section 18 — 900 of that Law. (Ill. Rev. Stat. 1981, ch. 951/2, par. 18 — 900.) This section provides:

“It is hereby made the duty of the Commission to see that the provisions of the Constitution and statutes of this State affecting public utilities, the enforcement of which is not specifically vested in some other officer or tribunal, are enforced and obeyed, and that violations thereof are promptly prosecuted and penalties due the State therefor recovered and collected, and to this end it may sue in the name of the People of the State.” Ill. Rev. Stat. 1981, ch. lll2/3, par. 83.

Smith did not argue the applicability of this section before the Commission or the circuit court, but focused only on the Commission’s duty to make findings under section 18 — 309. It is clear that points not included in a motion for rehearing before the Commission are waived on appeal. Ill. Rev. Stat. 1981, ch. lll2/3, par. 71; Chicago Area Recycling Group v. Illinois Commerce Com. (1978), 58 Ill. App. 3d 769, 374 N.E.2d 1008.

Even absent waiver, we find section 79 inapplicable here. The order we are asked to review concerns the Commission’s duty under section 18 — 309 to make findings following the abandonment of a proposed transfer request. That the Commission has a duty to enforce the provisions of the Illinois Motor Carrier of Property Law does not compel the conclusion that it must refuse to dismiss a petition for transfer under section 18 — 309 when the request for transfer becomes moot.

Smith also argues that the Commission’s failure to make findings under section 18 — 309 denied it due process of law. No such argument was presented to, considered or decided by, the Commission or the circuit court and we decline to consider the argument now. Ill. Rev. Stat. 1981, ch. lll2/3, par. 71.

Petitioner next urges us to remand the case to the Commission with directions to apply the doctrine of collateral estoppel and reduce the scope of the Douglas certificate of public convenience and necessity. In Brink’s, Inc. v. Illinois Commerce Com. (1982), 108 Ill. App. 3d 186, 439 N.E.2d 1, this court held that Douglas’ certificate of public convenience and necessity did not authorize the transportation of armored car commodities under language providing authority to move intrastate “livestock, farm products, feed, coal, merchandise, furniture and commodities general.” Petitioner argues that Douglas is now collaterally estopped on the issues necessarily decided in Brink’s and that the Commission erred in failing to reduce the scope of its certificate.

The doctrine of collateral estoppel or estoppel by verdict generally provides that issues previously litigated and necessarily determined in a former suit may not be relitigated by the parties to the former suit. (Johnson v. Nationwide Business Forms, Inc. (1981), 103 Ill. App. 3d 631, 431 N.E.2d 1096.) The only issue previously litigated and necessarily determined in Brink’s was that Douglas had no authority to haul armored car commodities. Here, the issue presented for decision is whether the Commission properly dismissed the petition for authorization to sell a controlling stock interest. We see no basis to apply the doctrine of collateral estoppel.

Finally, Douglas has raised the argument that the Commission disregarded section 18 — 601 of the Illinois Motor Carrier of Property Law (Ill. Rev. Stat. 1981, ch. 951/2, par. 18 — 601) by failing to rule on the petition for transfer within 90 days from filing. Section 18 — 601 provides, in part:

“Applications for authority to operate, (a) Application for authority to operate either as a common or contract carrier, or for any extension of existing operating authority, shall be made in writing to the Commission, be verified under oath, and be in such form and contain such information as the Commission shall, by regulation, require, and shall be accompanied by the required filing fee. *** The Commission shall enter a decision or order granting or denying an application in whole or in part within 90 days of the conclusion of the hearing. ***”

Although not raised by the parties, we note that Douglas appeared in both the circuit court and this court as an intervenor arguing in favor of the decision of the Commission although it filed no petition for rehearing or appeal. The issue now raised by Douglas attacks the Commission’s order apparently on the grounds that it lacked jurisdiction to enter the same since it was not made within the time required by section 18 — 601 of the Illinois Motor Carrier of Property Law. This cannot be done in the manner undertaken here. Section 67 of the Public Utilities Act which is incorporated into the Illinois Motor Carrier of Property Law (Ill. Rev. Stat. 1981, ch. 95%, par. 18 — 900) provides, in part:

“*** No person or corporation in any appeal shall urge or rely upon any grounds not set forth in such application for a rehearing before the Commission. ***” (Ill. Rev. Stat. 1981, ch. 111%, par. 71.)

Section 68 of the Public Utilities Act provides, in part:

“*** No circuit court shall permit a party affected by any rule, regulation, order or decision of the Commission to intervene or become a party plaintiff or appellant in such court who has not taken an appeal from such rule, regulation, order or decision in the manner as herein provided. ***” Ill. Rev. Stat. 1981, ch. 111%, par. 72.

In L.S. Heath & Sons, Inc. v. Marathon Oil Co. (1977), 56 Ill. App. 3d 440, 371 N.E.2d 1139, these two sections were construed to allow a party to a Commission proceeding to intervene in the circuit court and argue in favor of the Commission’s decision despite the absence of a petition for rehearing or an appeal from the Commission. However, we do not believe that it is possible to construe these sections to permit an intervenor to appear here and argue against the Commission’s decision on a ground neither urged below in a petition for rehearing nor in the circuit court on appeal. We conclude that Douglas’ argument concerning the scope and effect of section 18 — 601 is not properly before us.

As noted by the parties, the scope of our review of a Commission decision is circumscribed by section 68 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 111%, par. 72; ch. 95%, par. 18 — 900), upon which review only the reasonableness and lawfulness of the order is at issue. We conclude that the Commission’s refusal to make findings under section 18 — 309 following an abandonment of a request for approval thereunder is both a lawful and a reasonable interpretation of that section.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE WHITE

license: Public Domain

text:
    J. C. PENNEY COMPANY, INC., Plaintiff-Appellee, v. ALBERT WEST, Defendant-Appellant.
    First District (3rd Division)
    No. 81—1216
    Opinion filed May 4, 1983.

      Ellis E. Reid, of Chicago, for appellant.
    Lawrence Friedman, of Chicago (L. Bruce Goldberg, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court;

Defendant, Albert West, appeals from the order of the trial court of April 16, 1981, which vacated its prior order quashing service of summons and allowed a default judgment to stand against him.

On February 23, 1978, a default judgment was entered against defendant in the amount of $1,199.14, plus costs. On June 1, 1978, defendant’s attorney, Ira Silbar, appeared specially on defendant’s behalf and was granted leave to file a motion to quash service of summons. The trial court scheduled a hearing on defendant’s motion for September 28, 1978. Defendant did not appear on that date, nor did he file an affidavit to support his claim of improper service as required by section 20 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 20). No order was entered by the trial court in regard to this motion.

On June 4, 1979, the firm of Seyfarth, Shaw, Fairweather & Geraldson presented a section 72 petition (Ill. Rev. Stat. 1979, ch. 110, par. 72) to vacate the default judgment against the defendant. Defendant’s section 72 petition and attached affidavit alleged that he neither signed nor incurred the debt that forms the basis of the instant cause of action. The petition did not allege improper service of process. On July 31, 1979, after argument of counsel, the trial court denied defendant’s petition.

On February 28, 1980, a third attorney, Ellis Reid, made a special appearance on behalf of defendant to quash service of summons. This motion was supported by affidavit and evidence to support defendant’s claim of improper service. On February 28, 1980, the trial court granted defendant’s motion to quash. Subsequently, plaintiff moved to vacate the trial court’s order of February 28, 1980, on the ground that defendant, by presenting his section 72 petition, had submitted himself to the jurisdiction of the court and had thereby waived any defects in service of process. On April 16, 1981, the trial court granted plaintiff’s motion to vacate and allowed the default judgment against defendant to stand. The court reasoned that defendant’s section 72 motion to vacate “was sufficient to show an intent to submit to the jurisdiction of this court and after seeking to avail himself of the benefits of the court, the defendant could not later raise the issue of jurisdiction as it had been waived and or abandoned.” Defendant now appeals from that order.

Defendant first argues that the default judgment entered against him was void when entered and was not subsequently validated by the filing of his section 72 petition. He maintains that the judgment was void because he was never served with summons and, therefore, the court lacked in personam jurisdiction over him. Therefore, the first issue presented for our review is whether the defendant’s actions subsequent to the entry of the default judgment validated that judgment.

The law is clear in Illinois that “ ‘[a] judgment, order or decree entered by a court which lacks jurisdiction of the parties or of the subject matter *** is void, and may be attacked at any time or in any court, either directly or collaterally.’ ” (City of Chicago v. Fair Employment Practices Com. (1976), 65 Ill. 2d 108, 112, 357 N.E.2d 1154; Barnard v. Michael (1945), 392 Ill. 130, 135, 63 N.E.2d 858; O’Dell v. Dowd (1981), 102 Ill. App. 3d 189, 192, 429 N.E.2d 548.) Additionally, we note that service of summons upon a defendant is essential to create personal jurisdiction of the court. (Community Bank & Trust Co. v. Pavlich (1980), 84 Ill. App. 3d 1080, 1082, 406 N.E.2d 164.) However, it is well settled in Illinois that a party challenging the personal jurisdiction of the court must limit his appearance solely to that purpose and that where the party raises additional defenses, he has entered a general appearance and submitted himself to the court’s jurisdiction. (Ill. Rev. Stat. 1979, ch. 110, par. 20(1); Sullivan v. Bach (1981), 100 Ill. App. 3d 1135, 1141, 427 N.E.2d 645.) Where a general appearance is made subsequent to judgment, however, the decisions of the Illinois courts conflict as to the consequences of such an appearance.

Illinois courts have held that where a judgment is void when entered, it remains void notwithstanding subsequent general appearances and, that a general appearance does not serve to validate retroactively a judgment void when entered. (Sullivan v. Bach (1981), 100 Ill. App. 3d 1135, 1141; Francisco v. Francisco (1980), 83 Ill. App. 3d 594, 597, 404 N.E.2d 537; see Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App. 3d 581, 586, 366 N.E.2d 1015.) In Sullivan, where the facts were similar to the case at bar, the court stated:

“Where the defendant is found to have voluntarily submitted himself to the court’s jurisdiction prior to judgment, the court has personal jurisdiction at the time it enters the judgment order, but the same logic serves only to submit a defendant to the court’s jurisdiction as of the date he appeared, not retroactively as of the date of the ex parte judgment, where his appearance comes after judgment is entered. [Citation.] A defendant’s attempts to set aside a void judgment subsequent to the entry of that judgment are not to be considered as giving the court original jurisdiction to enter the judgment; doing so deprives the defendant of his day in court. [Citations.]” 100 Ill. App. 3d 1135, 1142.

We find the foregoing rationale to be dispositive of the case before us. Here, subsequent to the entry of the default judgment against him, defendant made a general appearance by the filing of his section 72 petition that alleged a meritorious defense. (See Powers v. Powers (1964), 46 Ill. App. 2d 57, 60, 196 N.E.2d 731.) By making such an appearance, defendant submitted himself to the jurisdiction of the court, but only prospectively. (Francisco v. Francisco (1980), 83 Ill. App. 3d 594, 597.) Therefore, that general appearance did not submit defendant to the court’s jurisdiction retroactively and would not serve to validate a previous order entered without jurisdiction. Accordingly, if defendant, as he maintains, was never served with process, then the trial court did not have personal jurisdiction over him at the time the default judgment was entered and the judgment is void and should be set aside.

However, plaintiff argues that a judgment entered without in personam jurisdiction over the defendant because of a failure to serve him with process may be cured and rendered valid if defendant appears generally and participates in subsequent proceedings or invokes any action on the part of the court for his own benefit. He relies upon Lord v. Hubert (1957), 12 Ill. 2d 83, 145 N.E.2d 77, Community Bank & Trust Co. v. Pavlich (1980), 84 Ill. App. 3d 1080, 406 N.E.2d 164, and Farley v. Blackwood (1978), 56 Ill. App. 3d 1040, 372 N.E.2d 921, as support for this position. These cases are distinguishable. In Lord, the defendant admitted the validity of the judgment in question whereas here the defendant did not. Community Bank is distinguishable because there a confession of judgment was involved rather than a default judgment. Finally, in Farley a bystander’s report indicated that defendant filed a general appearance before the default was entered.

Plaintiff also argues that defendant’s failure to file an affidavit in support of his initial motion to quash and his failure to pursue that motion to conclusion constitutes an abandonment of his claim, citing Washington v. Clayter (1980), 91 Ill. App. 3d 489, 414 N.E.2d 1085. The case at bar is factually distinguishable from Clayter. There, defendant moved to quash service of summons prior to the entry of the default judgment. Defendant failed to appear on the court appointed date for a hearing on his motion and he did not file affidavits to support his claim as ordered by the trial court. The trial court then entered a default judgment against defendant. Affirming the trial court, the appellate court reasoned that, “disregard of court-ordered time limits cannot be condoned, particularly where employed to defeat a subsequent judgment.” (91 Ill. App. 3d 489,494.) In the instant case the trial court never ordered defendant to file affidavits in support of his motion to quash and on the date set for a hearing on that motion neither party appeared and no order was entered. Furthermore, since we have found that the default judgment was void, there was never a valid judgment against defendant and nothing defendant did subsequent to that judgment could retroactively validate it.

We are of the opinion that defendant could attack the validity of the default judgment. We, however, are not in a position to determine whether the default judgment was entered with or without in personam jurisdiction. Accordingly, we hold that the trial court erred in vacating its order quashing service of summons and allowing the default judgment to stand. Therefore, we reverse that order and remand this cause for a hearing consistent -with this opinion to determine the jurisdictional basis, if any, for the entry of the default judgment.

McNAMARA, P.J., and McGILLICUDDY, J., concur.

      Defendant argues on appeal that this motion to vacate was never filed in the circuit court. However, the trial judge’s order of April 16, 1981, shows that he considered it and denied the motion. Moreover, defendant’s motion to vacate pursuant to section 72 and the court order denying the motion is included in the record.


author: JUSTICE LORENZ

text:
    JAMES F. RAPER, Adm’r of the Estate of Beth Raper, Plaintiff-Appellant, v. HAZELETT & ERDAL, Defendant-Appellee.
    First District (5th Division)
    No. 81—2716
    Opinion filed May 13, 1983.
    Thomas Peters, of Chicago, for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Lisa D. Marco, and Henry R. Daar, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, James Raper, administrator of the estate of Beth Raper, brought suit to recover damages against defendant Hazelett & Erdal, an Illinois partnership, for damages sustained by the alleged negligence of defendant in the construction and design of a highway median in Kentucky over which an errant vehicle crossed, striking the car of plaintiff’s decedent and resulting in her death.

The trial court granted the defendant’s motion for summary judgment on the grounds that a prior suit, brought by plaintiff in the Kentucky Board of Claims, found that the median was constructed in accordance with industry standards in effect at the time it was built, and plaintiff appeals.

The solitary issue on review is whether the trial court erred in granting defendant’s motion for summary judgment on the basis of collateral estoppel.

The pertinent facts follow. On October 20, 1978, a car northbound on Interstate 65 in the Commonwealth of Kentucky went out of control when its left front tire blew out, traversed the highway median, and struck the car driven by the plaintiff’s decedent, Beth Raper.

Plaintiff filed suit in Kentucky against the driver of the car that struck plaintiff’s decedent, and received a settlement of $10,000 on January 30, 1980. Subsequently, a second suit was filed in the Kentucky Board of Claims against the Commonwealth of Kentucky, which alleged that Interstate 65 was either negligently designed or constructed by the Commonwealth, its contractors, or subcontractors, thereby permitting a motor vehicle to cross the median.

Plaintiff’s complaint alleged, inter alia, that:

“7. Interstate 65 was negligently designed or in the alternative negligently constructed so as to permit the motor vehicle operated by Elizabeth Evans to cross the median strip and strike the motor vehicle owned and operated by Beth H. Raper, deceased, and said negligence was a substantial factor in causing the death of Beth H. Raper.
8. Said negligent design and/or construction was performed by the Commonwealth of Kentucky, and/or by employees, servants, agents, architects, engineers, contractors or subcontractors employed or retained by the Commonwealth of Kentucky and under the supervision and control of the Commonwealth of Kentucky.”

A hearing was held before the Kentucky Board of Claims on December 14, 1979, wherein both parties presented the board with deposition testimony of expert witnesses, and plaintiff, in addition, presented eyewitness testimony. The Board of Claims unanimously held that the median was not defectively designed at the time it was constructed, stating: “The expert witness called by the defendant *** testified that the median was designed and constructed in accordance with the AASHO standards at that time. While it is true that the expert for the Plaintiff *** testified to the contrary, it is this Board’s finding that the design of the median in question was acceptable at the time the highway was constructed. While the record holds evidence that it would not be so if it were constructed by today’s standards, there is nothing to show this Board that the median in question was not designed and constructed in accordance with standards prevailing at the time of its design and construction.” Plaintiff did not appeal this ruling, and the statute of limitations period prescribed by Kentucky law expired on October 20, 1979.

Plaintiff brought suit against defendant, the Illinois contractor that supervised the construction of one section of Interstate 65, on October 19, 1979, alleging, inter alia, that defendant was negligent in failing to design or construct a median capable of preventing northbound vehicles from crossing over to the southbound lanes of traffic, or, in the alternative, of designing or constructing the highway with such obviously dangerous specifications that no competent contractor would have followed them.

Various pleadings were filed, and on March 10, 1981, defendant filed a motion for summary judgment on the basis that the prior administrative determination rendered by the Kentucky Board of Claims collaterally estopped the plaintiff from relitigating the issue of the design and construction of the median. The trial court granted this motion on October 5,1981, and plaintiff appeals.

Opinion

Initially, we note that the policy underlying the doctrine of res judicata, of which collateral estoppel is a part, is stated in section 1 of the Restatement of Judgments (1942):

“Where a reasonable opportunity has been afforded to the parties to litigate a claim before a court which has jurisdiction over the parties and the cause of action, and the court has finally decided the controversy, the interests of the State and of the parties require that the validity of the claim and any issue actually litigated in the action shall not be litigated again by them.” Bowen v. United States (7th Cir. 1978), 570 F.2d 1311, 1320-21.

Although plaintiff initially argues that he was never afforded a determination by a court because members of the Kentucky Board of Claims are not judges, we find that this antiquated position lacks merit and harkens back to a time earlier in this century when courts were unwilling to apply collateral estoppel to administrative determinations pursuant to Pearson v. Williams (1906), 202 U.S. 281, 50 L. Ed. 1029, 26 S. Ct. 608.

In 1966, the United States Supreme Court specifically held that “[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.” United States v. Utah Construction & Mining Co. (1966), 384 U.S. 394, 422, 16 L. Ed. 2d 642, 661, 86 S. Ct. 1545, 1560.

Thus, the modern trend has been to expand the application of the collateral estoppel, or estoppel by verdict, branch of the doctrine of res judicata, to better serve the underlying policy on which the doctrine is based, i.e., that one opportunity to litigate an issue fully and fairly is enough. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation (1971), 402 U.S. 313, 28 L. Ed. 2d 788, 91 S. Ct. 1434; Bowen v. United States (7th Cir. 1978), 570 F.2d 1311.

We now turn to consider whether plaintiff is collaterally es-topped from further pursuing his claim. In Illinois, the requirements for the application of collateral estoppel are: (1) that the issue decided in the prior adjudication be identical with the one presented in the case under review; (2) that the party against whom the estoppel is asserted was a party or in privity with a party to the prior litigation; and (3) that there has been a final judgment on the merits in the former suit. (Riley v. Unknown Owners (1975), 25 Ill. App. 3d 895, 324 N.E.2d 78.) Moreover, for collateral estoppel to apply, a plaintiff must be afforded a “full and fair opportunity” to litigate. United States v. Utah Construction & Mining Co. (1966), 384 U.S. 394, 422, 16 L. Ed. 2d 642, 661, 86 S. Ct. 1545, 1560.

First, we have considered the identical issue requirement and have necessarily compared the nature, purpose and allegations of the present cause of action with the proceedings in the Kentucky Board of Claims (see Raymond Construction Co. v. Midwest America Development, Inc. (1978), 67 Ill. App. 3d 332, 384 N.E.2d 907) in order to determine whether the prior judgment effectively bars plaintiff’s action here.

It is clear that a comparison of the pleadings in the administrative action and the present case shows that both complaints allege negligent design or construction of the median. Furthermore, the Board of Claims in its decision specifically stated that “[t]he central issue [of the case] is the design and construction of the median barrier.” Consequently, we conclude that the .issue decided in the prior adjudication is identical with the one presented in the case under review.

Secondly, we have examined whether the party against whom the estoppel is asserted, the plaintiff, was a party or in privity with a party to the prior litigation.

Although plaintiff urges us that collateral estoppel is precluded because the prior suit was brought against the Commonwealth of Kentucky, citing Celotex Co. v. Koblitz (1926), 241 Ill. App. 159, the recent trend in the law in this area is to discard the identical parties — mutuality rule entirely and to require that only one party or his privy, the one against whom estoppel is attempted to be used, be identical in the second action, especially when estoppel is urged defensively. Riley v. Unknown Owners (1975), 25 Ill. App. 3d 895, 898, 324 N.E.2d 78, 81.

As the United States Supreme Court expressed in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation (1971), 402 U.S. 313, 329, 28 L. Ed. 2d 788, 799-800, 91 S. Ct. 1434, 1443: “[to permit] repeated litigation of the same issue as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or ‘a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure.’ [Citation.]”

Accordingly, we find that the second element of collateral estoppel has been satisfactorily demonstrated in the case at bar. In addition, neither party disputes that the judgment rendered by the Kentucky Board of Claims constitutes a final judgment on the merits of the case and thus the third element has been fulfilled.

The fourth and final element of collateral estoppel is whether plaintiff was afforded a full and fair opportunity to argue his version of the facts and an opportunity to seek court review of any adverse findings pursuant to United States v. Utah Construction & Mining Co. (1966), 384 U.S. 394, 422, 16 L. Ed. 2d 642, 661, 86 S. Ct. 1545, 1560.

The requirement that the issue be “actually litigated” however, does not require that the issue be thoroughly litigated. Collateral estoppel may apply “no matter how slight was the evidence on which a determination was made, in the first suit, of the issue to be collaterally concluded.” (Continental Can Co., USA v. Marshall (7th Cir. 1979), 603 F.2d 590, 596.) Thus, courts generally hold the “full and fair opportunity to litigate” requirement to be satisfied if the parties to the original action disputed the issue and the trier of fact resolved it.

An examination of the record in the instant case shows that expert testimony was presented to the Board of Claims by both parties, and the Kentucky board also considered interrogatories that were filed by the Commonwealth of Kentucky and which had been answered by plaintiff.

Thus, applying the foregoing legal principles to the present case we find that plaintiff was indeed afforded a full and fair opportunity to litigate.

Since full faith and credit must be accorded the judgment of a sister State (U.S. Const., art. IV, sec.l; Brownlee v. Western Chain Co. (1977), 49 Ill. App. 3d 247, 364 N.E.2d 926, cert. denied (1978), 435 U.S. 968, 56 L. Ed. 2d 59, 98 S. Ct. 1605) absent any question of jurisdiction over the person and subject matter, no other court may rehear any claim, issue, or defense which was previously decided or which could have been presented to the court of the sister State. (Carlson v. Prestige Casualty Co. (1975), 28 Ill. App. 3d 926, 329 N.E.2d 477.) Therefore, however erroneous a decision of a court of competent jurisdiction may be, it is binding upon all parties unless it is reversed on appeal. Radice v. Antonacci (1970), 120 Ill. App. 2d 478, 257 N.E.2d 233.

As the plaintiff was afforded the opportunity to litigate the negligence issue in Kentucky, his remedy, if the judgment was wrong, was appeal. (Lady v. Montgomery Ward & Co. (1980), 80 Ill. App. 3d 69, 399 N.E.2d 346.) We therefore believe that the doctrine of res judicata bars plaintiff from attacking collaterally the Kentucky judgment in Illinois. Accordingly, we find that the trial court properly granted defendant’s motion.

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

Affirmed.

SULLIVAN and MEJDA, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER G. BLAIR, Defendant-Appellant.
    First District (1st Division)
    No. 82—1404
    Opinion filed May 2, 1983.
    James J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Thomas Wood Flynn, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Following a bench trial the defendant, Walter G. Blair, was convicted of soliciting for a prostitute (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 15(a)(1)), and sentenced to pay a fine of $80 and $10 in costs. He appeals contending that he was not proved guilty beyond a reasonable doubt.

The defendant was arrested in the 600 block of South Cicero in Chicago, on November 14, 1981, at approximately 12:45 a.m. Police Officer Diane Trible testified she was assigned to Operation Angel in the above area. The defendant pulled over to the curb and called her to his car and “I believe offered me $15 for a French,” which she said is a term of oral copulation. She admitted that she did not remember the exact conversation, but said the defendant asked something like, “Do you want a date.” He asked her if she knew what a “French” was, and she responded, “Oh, yeah.” She then signaled her partners, who placed the defendant under arrest.

The defendant testified that he was in his car with his auto mechanic and they were going in . an easterly direction. He noticed Officer Trible standing at the intersection of Fifth and Cicero avenues. After passing her, they came to an alley, and he told the mechanic to turn into it so they could back out and drive in a westerly direction. As they backed out of the alley, he saw a police squad car. When he returned to Officer Trible at the intersection, he told the mechanic to stop. He told the officer that if she was looking for a “date,” she should find another place because of the police. He was then arrested. He denied knowing what the term “French” means, and denied offering to pay the officer for a sex act.

The defendant contends that the State failed to prove beyond a reasonable doubt that he committed the offense of soliciting for a prostitute. He maintains that the statute does not proscribe soliciting a prostitute,' but soliciting for a prostitute which he says constitutes conduct by third parties that aids and abets the transaction between the prostitute and patron.

Section 11 — 15(a)(1) of the Criminal Code of 1961 provides:

“Any person who performs any of the following acts commits soliciting for a prostitute:
(1) Solicits another for the purpose of prostitution; ***.”
(Ill. Rev. Stat. 1981, ch. 38, par. 11 — 15(a)(1).)

In People v. Rice (1943), 383 Ill. 584, 50 N.E.2d 711, our supreme court said:

“The definitions of ‘solicit’ and ‘prostitution’ are so well and universally understood as to require no further definition in the statute or charge to set forth the elements necessary to constitute the offense intended to be punished.” 383 Ill. 584, 588.

In the instant case the defendant cannot assert that the statue does not proscribe soliciting a prostitute. The language of the statute creating the offense may be easily understood, and it does not preclude soliciting prostitution. The defendant relies upon the Committee Comments set forth in the Smith-Hurd Illinois Annotated Statutes, which state:

“Subsection (a)(1) proscribes simply ‘soliciting’. This subsection envisions one who actively seeks out customers for the prostitute, those who initiate the suggestion to the prospective patron.” (Ill. Ann. Stat., ch. 38, par. 11 — 15, Committee Comments, at 341 (Smith-Hurd 1979).)

However, the language of the statute is not to be so narrowly drawn. Courts should look to the object of the statute and the evils sought to be remedied. (People v. Gibson (1981), 99 Ill. App. 3d 616, 425 N.E.2d 1197.) The defendant’s analysis overlooks the important element of the offense of soliciting for a prostitute; namely, the public nuisance aspect of open solicitation which the legislature sought to limit.

When a statute uses words which have a well-known legal meaning, courts will assume that is the meaning intended by the legislature. (Department of Public Works & Buildings v. Wishnevsky (1972), 51 Ill. 2d 550, 283 N.E.2d 872.) If the words of the statute are clear and unambiguous, there should be no resort to extrinsic aids such as legislative history. (Rushton v. O’Malley (1980), 89 Ill. App. 3d 103, 411 N.E.2d 528.) The phrase “solicits another for the purpose of prostitution” has a broader meaning than to solicit another on behalf of a prostitute as the defendant contends. It also means to appeal to or entice another for an act of prostitution. Here, we believe that the trial court correctly held that the statute applies to the facts of this case.

For the reasons set forth above, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

GOLDBERG and CAMPBELL, JJ., concur.


author: JUSTICE GOLDBERG

text:
    C. EARL HANNA, Plaintiff-Appellant, v. BREESE TRENTON MINING CO. et al., Defendants-Appellees.
    First District (1st Division)
    No. 82—1648
    Opinion filed May 9, 1983.

      Robert J. Weber, Ltd., of Chicago (Robert J. Weber, of counsel), for appellant.
    Musick & Mitchell, EC., of Mt. Vernon, and Maurice H. Grimes, of Chicago (John J. Flood, of counsel), for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

C. Earl Hanna (plaintiff) brought this action to recover declared dividends on his stock allegedly wrongfully withheld by Breese Trenton Mining Co. and its officers-directors William D. Eaton and Robert A. Hummert (defendants). The trial court granted defendants’ motion for change of venue to Richland County, Illinois. This court allowed plaintiff’s motion for interlocutory appeal under Supreme Court Rule 306 (87 Ill. 2d R. 306).

Plaintiff is a resident of Cook County, Illinois. The registered office of the defendant corporation is in Richland County, Illinois. The corporation has no other offices and does not do business in Cook County. Defendant Hummert is a resident of Clinton County, Illinois. Defendant Eaton is a resident of St. Peters, Missouri.

Plaintiff’s complaint alleges plaintiff is the owner of 487 shares of common stock in defendant corporation. Commencing in 1976, plaintiff had received dividends in Cook County based on his ownership of that stock. On May 15, 1981, the corporation declared a dividend of $20 per share of common stock. Defendant corporation paid these dividends to certain of its shareholders. Defendant corporation has not paid the dividends owed plaintiff despite plaintiff’s repeated demands.

The pertinent provisions of the Code of Civil Procedure provide (Ill. Rev. Stat. 1981, ch. 110, pars. 2-101, 2-102):

“Sec. 2 — 101. Generally. Except as otherwise provided in this Act, every action must be commenced (a) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him or her and not solely for the purpose of fixing venue in that county, or (b) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.
* * *
Sec. 2 — 102. Residence of corporations and partnerships defined. For purposes of venue, the following definitions apply:
(a) Any private corporation or railroad or bridge company, organized under the laws of this State, and any foreign corporation authorized to transact business in this State is a resident of any county in which it has its registered office or other office or is doing business. A foreign corporation not authorized to transact business in this State is a nonresident of this State.”

Because none of the defendants are residents of Cook County, and the defendant corporation maintains its registered office in Richland County and does not do business in Cook County, venue is proper in Cook County only if the transaction or some part thereof, out of which the cause of action arose, occurred in Cook County. See Ill. Rev. Stat. 1981, ch. 110, par. 2 — 101(b).

Thus, the issue here presented is whether nonpayment of dividends by a corporation, with its registered office in Richland County, to a shareholder residing in Cook County is sufficient basis under the statutory language above cited to authorize venue in Cook County in a suit by the shareholder. There is a paucity of Illinois and other case law dealing directly with this transactional element of venue.

In La Ham v. Sterling Canning Co. (1943), 321 Ill. App. 32, 52 N.E.2d 467, cited by both parties here, plaintiff was a resident of Wisconsin. The defendant corporation had its registered office in Whiteside County, Illinois. The action involved misappropriation of assets and mismanagement of the corporation, wrongful issuance of shares and refusal to permit inspection of corporate records. Thus, the case throws no light upon the specific issue before us. However, the court there considered the meaning of the word “transaction” in the same statute involved in the case at bar. Although the court pointed out that none of the parties there involved resided in Cook County, the language used by the court in its opinion should be considered.

The court categorized the term “transaction” with the statement that it “must necessarily refer to dealings between the parties themselves where they are in a sense adversaries.” (La Ham v. Sterling Canning Co. (1943), 321 Ill. App. 32, 44.) The court also approved a broad construction of the word “transaction” as meaning, “ ‘every variety of affairs which forms the subject of negotiations or actions between the parties.’ ” 321 Ill. App. 32, 44.

Defendants contend the facts here show only the “non-receipt of a declared dividend” by a plaintiff shareholder in Cook County. They urge this cannot be a “transaction” for the purpose of establishing venue. We disagree.

In Bagarozy v. Meneghini (1955), 8 Ill. App. 2d 285, 131 N.E.2d 792, defendant, Maria Callas, was a resident of Italy. Plaintiff was a resident of New York. They entered into a contract whereby plaintiff was entitled to commissions based on defendant’s operatic performances. Plaintiff sued defendant in Cook County after defendant made another contract to appear and perform in Chicago. This court held the venue was proper (8 Ill. App. 2d 285, 290-91):

“Here defendant argues that the transaction out of which the contract arose occurred ‘in New York and/or Italy,’ and therefore no part of the transaction occurred in Illinois. We think defendant’s position is untenable, for the reason that plaintiff’s suit is not based on the transaction out of which the contract arose. Plaintiff’s cause of action, according to the allegations of the complaint, arose from the transaction resulting in the breach of the contract which occurred when the defendant Callas agreed to appear under the auspices of the Lyric Theatre of Chicago, in Cook County, and refused to pay the commission due plaintiff under the terms of the agreement.”

Similarly, in the case at bar, the transaction did not arise merely from the status of plaintiff as a shareholder. The significant matter is the failure of plaintiff as a shareholder to receive his dividend in Cook County as he had in the past.

In the instant case, the relationship between a corporation and its shareholders is contractual in nature. (Roth v. Ahrensfeld (1939), 300 Ill. App. 312, 316, 21 N.E.2d 21, aff'd (1940), 373 Ill. 550, 27 N.E.2d 445.) According to the holding in Bagarozy, an action for breach of contract is proper at the locale of that breach. We find this rule enunciated in other jurisdictions. (See Russell v. Pineview Realty, Inc. (W. Va. 1980), 272 S.E.2d 241; State ex rel. Hartwig’s Poultry Farm, Inc. v. Bunde (1969), 44 Wis. 2d 229, _, 170 N.W.2d 734, 737; Windsor v. Migliaccio (Fla. App. 1981), 399 So. 2d 65, 66.) Furthermore, these jurisdictions hold that the payment of money is required at the residence of the payee, and that venue is proper at the payee’s county of residence. Excel Insurance Co. v. Brown (Fla. App. 1981), 406 So. 2d 534, 535:

“A cause of action on a contract accrues and venue is proper in the county where performance is required. [Citations.] Where the default involves failure to pay money and no place of payment is expressly agreed upon, it is generally implied that payment is to be made in the county where the payee resides. [Citations.]”

Similarly, the declaration of a dividend by a corporation creates a debtor-creditor relationship between the corporation and its shareholders. (Ford v. Ford Manufacturing Co. (1921), 222 Ill. App. 76, 83, appeal denied.) In addressing the issue of venue the Federal District Court in South Carolina stated (Deering Milliken Research Corp. v. Textured Fibres, Inc. (D. S.C. 1970), 310 F. Supp. 491, 500):

“The general rule is that place of payment of a debt, or contractual obligation, absent clear agreement to the contrary, is the residence or headquarters of the creditor. [Citations.]
* * *
Accordingly, venue was properly fixed in the county where payment was to be performed, i.e., in the county where the creditors’ maintained their offices and residences.”

To the same effect, the Supreme Court of West Virginia held (Russell v. Pineview Realty, Inc. (W. Va. 1980), 272 S.E.2d 241, 243): “[West Virginia] imposes a duty on a debtor to seek out his creditor and make payment to him wherever he resides.” See also Max Bauer Meat Packer, Inc. v. Gordon Cartons, Inc. (Fla. App. 1982), 423 So. 2d 1030.

We believe this rule should be applied in the case at bar. Even if such a provision is not explicitly embodied in the articles of incorporation of defendant corporation, we believe it is implied that a shareholder’s dividends will be paid to the shareholder at his residence or any place he directs. Therefore, we conclude that absent explicit agreement to the contrary, if a corporation breaches its contract to pay dividends to a shareholder, such a breach occurs at the residence of the shareholder. This is particularly true in the instant case where the defendant corporation had previously paid other dividends to plaintiff at his residence in Cook County.

In Bagarozy v. Meneghini (1956), 8 Ill. App. 2d 285, 292, the court applied the principle that unless the balance of convenience between the parties is “strongly in favor of the defendant the plaintiff’s choice of forum should rarely be disturbed.” We see no sound reason to disturb plaintiff’s choice in the case before us.

Accordingly venue was proper in Cook County and the trial court erred in granting defendants’ motion to change venue to Richland County.

For these reasons the judgment is reversed and the cause is remanded to the circuit court of Cook County for trial.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES THOMPSON, Defendant-Appellant.
    First District (5th Division)
    No. 81—1037
    Opinion filed April 22, 1983.
    Rehearing denied June 2, 1983.

      James J. Doherty, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean P. Karlos, and Lawrence R. Stasica, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant was convicted in a jury trial of murder, attempted armed robbery, two counts of aggravated battery, and armed violence. He was acquitted of attempted murder. His pretrial motion to suppress statements made by him to police officers was denied. After trial, he was sentenced to a term of 30 years’ imprisonment for murder, running consecutively to a prior sentence for an unrelated crime; to an extended term of 50 years for armed violence; and to 10 years for attempted armed robbery. The commitment order concluded with the phrase “Sentences to run concurrent.” No sentence was imposed on the aggravated battery conviction.

On appeal, defendant contends that: (1) his statement was the product of police deception and, therefore, inadmissible; (2) the jury was improperly instructed on the law of accountability; (3) the conviction for armed violence predicated on the felony of aggravated battery by use of a deadly weapon was the product of improper enhancement; (4) the extended-term sentence was improperly imposed on the armed-violence conviction; and (5) the commitment order is vague and, therefore, the case must be remanded for a more precise sentencing.

For the reasons hereinafter set forth, we reverse the defendant’s conviction for armed violence and remand the case for resentencing.

There is no contention that guilt was not established beyond a reasonable doubt and, therefore, the following factual summary is confined to those relevant to the issues addressed.

Defendant and codefendant, Robert Lowe, were charged by information with armed violence and murder stemming from the shooting death of Edward Kolesiak, with attempted murder, aggravated battery and armed violence based on the wounding of Gerald Erlandson, and with the attempted robbery of Michael Klasnja. The charges were based on an incident occurring on October 21, 1979, when during an unsuccessful robbery of a tavern, several shots were fired, killing Kolesiak and wounding Erlandson, both tavern patrons. The evidence adduced at trial established that both defendants brandished weapons in the tavern, but that the shots had been fired by Lowe.

On October 22, 1979, defendant was arrested and brought to the police station where he was advised of his rights and then interrogated by four officers. The resulting inculpatory statement was the subject of defendant’s motion to suppress. At the suppression hearing each participating officer testified. Officer Katalinic testified that he spoke to defendant in the presence of officers Tosello, Hill and DiGiacomo. He knew defendant from a prior criminal case and had a friendly relationship with him. After greeting defendant, Katalinic advised him of his constitutional rights and defendant replied that he understood them. Defendant never indicated that he did not want to speak, nor did he request an attorney.

An issue at the suppression hearing was whether defendant’s statement to Katalinic was induced by promises and threats regarding the death penalty. Katalinic denied that he threatened defendant by telling him that if he refused to talk he would be charged with murder or that the State would seek the death penalty in his case. He testified, however, that he told defendant he might be eligible for the death penalty. Precisely, Katalinic stated:

“I said that when a person was involved in a murder while in the commission of a forcible felony, that the death penalty is in order. I didn’t refer to *** shooter or non-shooter. I just said a person, when committing a forcible felony. I didn’t break it down to shooter or non-shooter.”

Katalinic further advised defendant:

“*** I said *** the new law had been written in and while in the commission of a forcible felony someone meets their [s-ic] death that it could be punishable by death.”

Katalinic testified that he knew that the investigation indicated that Lowe, and not defendant, probably was the one who actually fired the fatal shot. He stated that he also knew that under the law, only the “shooter” in a felony murder is eligible for the death penalty. It was after Katalinic discussed the death penalty in the above manner that defendant recounted his involvement in the incident.

Officer Tosello testified that defendant received two sets of Miranda warnings and that defendant never requested an attorney or indicated he wished to cease speaking. Katalinic was the only officer who questioned defendant, the last conversation lasting 45 minutes to an hour and occurring at 7 or 7:30 p.m. Tosello heard Katalinic say “in substance” that “the death penalty was possible for a crime of this nature.” He heard Katalinic make no promises to defendant of any kind. Tosello recalled that five minutes into the interrogation defendant stated his involvement in the case.

Officers DiGiacomo and Hill testified. DiGiacomo heard Katalinic say to defendant, “this is a felony murder and a felony murder is a capital punishment case.” Hill testified that after Katalinic mentioned defendant’s rights, Katalinic spoke to defendant for a minute or two about the death penalty. Katalinic told defendant “the case *** was a capital case” and “the people that [sic] committed this could be” given the death penalty. Both officers testified that no threats or promises were made to defendant by any police officers present.

Defendant testified. According to defendant, none of the officers advised him of his right to have an attorney present. He testified, however, that he was asked if he understood his rights and that he told the officers that he did and that he wished to phone his lawyer, but that Tosello refused to permit such a phone call. According to defendant, Tosello also repeatedly told him that if he “refuse[d] to cooperate with him that he would seek the death penalty case,” and that defendant would be charged with murder and that he would not be so charged if he agreed to cooperate with the police.

Opinion

Defendant first contends that the police officers knowingly misled him into believing that the death penalty was a possible sentence in his case when it was not, thus rendering his subsequent disclosures involuntary as the product of police deception and cajolery. We find it unnecessary to discuss at length this contention since we reject defendant’s premise that the death penalty was not a possible sentence in his case. In People v. Ruiz (1982), 94 Ill. 2d 245, our supreme court held that section 9 — 1(b)(6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(b)(6)) (effective since 1977) does not remove accountability convictions as a foundation for the death penalty despite the fact that the murdered individual was not actually killed by the accused. Accordingly, the sole fact that defendant was not the “shooter” in this case clearly did not exclude the possibility of the imposition of the death penalty, assuming an intent to take the life of the victim could be inferred from defendant’s acts and the circumstances of the crime. (See 94 Ill. 2d 245, 261.) Thus, we find that the officer’s general reference to the possible imposition of the death penalty for the acts resulting in the death of the victim in this case conforms to the settled law of this State. Accordingly, we reject defendant’s contention that the officers knowingly cajoled him into speaking by referring to the death penalty where such a penalty was, categorically, a possible sentence applicable to him in this case.

Next, defendant contends that the trial court misstated the law of accountability when orally answering a question posed to it by the jury. After the trial court’s oral instruction, defendant generally objected, stating, “Judge, I object to that instruction to the jury at this time.” Where a defendant fails to articulate the specific grounds for his objection, and that objection is overruled, the issue is not preserved for review on appeal. (People v. Queen (1974), 56 Ill. 2d 560, 310 N.E.2d 166; People v. Bivens (1981), 101 Ill. App. 3d 8, 427 N.E.2d 791.) By making a general objection, defendant did nothing to guide the court in its judgment nor point out what specifically was objectionable, and his objection was, therefore, not preserved for review. Furthermore, defendant’s written post-trial motion for a new trial failed to specify any legal defect in the court’s instruction to the jury. The failure to state specific legal grounds in support of the claimed error in a motion for a new trial ordinarily results in waiver of that error on appeal. (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739; People v. Turk (1981), 101 Ill. App. 3d 522, 428 N.E.2d 510.) Under the foregoing principles, since defendant did not specify grounds for his objection at trial or in his post-trial motion, the issue is deemed waived.

Next, defendant contends that his conviction for armed violence was predicated on the felony of aggravated battery by use of a deadly weapon and was, therefore, the product of improper enhancement. We agree. The information charged that defendant “committed the offense of armed violence in that [he], while armed with a dangerous weapon, to wit: a gun, committed a felony defined by Illinois law, to wit: aggravated battery, in that [he], intentionally and knowingly without legal justification caused bodily harm to Gerald Erlandson, by shooting him in the knee with said gun in violation of Chapter 38, section 33A — 2 Illinois Revised Statutes.” In People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, our supreme court held that the use of a dangerous weapon which serves to enhance a charge of battery to aggravated battery may not also serve to further enhance the latter charge to armed violence. Accord, People v. Van Winkle (1981), 88 Ill. 2d 220, 430 N.E.2d 987; People v. Waelterman (1983), 112 Ill. App. 3d 483.

The State contends that Haron is inapplicable since the information contained two possible predicate counts of aggravated battery, one based on the infliction of “great bodily harm” and the second based on the use of a “deadly weapon.” The State concludes that since the jury’s general verdict did not indicate the particular felony upon which it was based, under the decision in People v. Ross (1981), 100 Ill. App. 3d 1033, 427 N.E.2d 955, it is to be presumed that the armed violence verdict was properly based on the underlying felony of aggravated battery based upon great bodily harm. We find Ross distinguishable, however, from the instant case. There, although the question before the court closely resembled the issue raised herein, the count of armed violence did not indicate whether the battery was aggravated by the “great bodily harm” or the “deadly weapon.” The instant count, however, omits reference to “great” bodily harm but it does refer to a “shooting” with a “gun,” and thus, in our view, appears to be factually predicated upon the use of a “deadly weapon.” Moreover, in Ross, there was evidence that the defendant had struck the victim in the right cheek with the butt of his rifle before the shooting, and thus the appellate court found there was sufficient proof of the commission of aggravated battery based upon infliction of bodily harm.

Our supreme court has stated: “[T]he requirement of section 33A — 2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon.” (Emphasis added.) (People v. Haron (1981), 85 Ill. 2d 261, 278, 422 N.E.2d 627, 634.) In the instant case, unlike Ross, we do not find the charge — or the proof — sufficiently supports the State’s contention that defendant’s conviction was properly predicated on the felony of aggravated battery for infliction of great bodily harm. Rather, it is the presence of the gun, i.e., a dangerous weapon, that is the gravamen of the aggravated battery offense presented here. Thus, under the Harón rule, where the charge of armed violence is predicated upon aggravated battery based upon use of a deadly weapon, the charge is defective and cannot stand, and defendant’s conviction for armed violence must, therefore, be reversed.

Defendant next seeks review of the extended-term sentence imposed upon his conviction for armed violence. Our reversal of his conviction for armed violence, however, obviates the requirement to review this sentence which must be vacated. We note that since no sentence was imposed on the predicate aggravated battery conviction, the State may, on remand, request sentencing for this conviction.

Finally, defendant has urged that the instant commitment order requires more precision. We agree. Where the order fails to clearly define the limits of sentences intended to run consecutively, the cause must be remanded for reimposition of sentences. (People v. Logan (1974), 23 Ill. App. 3d 41, 318 N.E.2d 94.) We find it difficult to ascertain the precise meaning of the instant order imposing both consecutive and concurrent sentences. We therefore reverse defendant’s conviction for armed violence and remand this cause for resentencing in accordance with the views expressed herein.

Reversed and remanded.

WILSON, P.J., and LORENZ, J., concur.


author: JUSTICE McGILLICUDDY JUSTICE RIZZI,

text:
    BERNARD M. SUSMAN et al., Plaintiffs-Appellees, v. CYPRESS VENTURE et al., Defendants-Appellants (Donald Asher et al., Counterplaintiffs-Appellants, v. Bernard M. Susman et al., Counterdefendants-Appellees).
    First District (3rd Division)
    No. 81—1219
    Opinion filed December 30, 1982.
    Rehearing denied May 31, 1983.

      RIZZI, J., concurring in part and dissenting in part.
    William J. Harte, Ltd., Kevin M. Forde, Ltd., and Sperling, Slater & Spitz, all of Chicago (William J. Harte, Kevin M. Forde, and Bruce S. Sperling, of counsel), for appellants.
    Greenberger, Krauss & Jacobs, Chartered, of Chicago (James T. Ryan and Brian P. Lutterman, of counsel), for appellees.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Cook County which dissolved five partnerships and ordered that the assets of the partnerships be liquidated. The five partnerships are Cypress Venture, Cedar Venture, Red Bud Venture, Catalpa Venture and Osage Venture.

In October 1968 Bernard Susman and related entities (hereinafter Susman) and members of the Asher family and related entities (hereinafter Ashers) entered into a partnership to purchase and develop approximately 945 acres of property in Lake County, Illinois. Five partnership agreements (hereinafter agreement), the terms of which are essentially identical, defined the rights and obligations of the partners thereof.

In the agreement Donald, Gilbert and Robert Asher were designated as “general partners”; Susman was designated as a “limited partner.” Norman Asher, who was not a party to the agreement, guaranteed the performance of his sons.

The purpose of the partnerships was “to acquire, own, operate, maintain and lease the Real Property and the improvements made thereon and, as an investment, to develop, construct, own, operate, maintain and lease or otherwise sell the Real Property, in whole or in part, and the improvements made thereon, and to engage in such operations necessary or appropriate to the foregoing purposes.”

Pursuant to the terms of the agreement, Susman was responsible for the management and development of the property. The Ashers were given the right to make all decisions for the partnership until such time as their capital was returned or until Susman contributed an equal amount of capital. Any profits generated were first to be distributed to the Ashers, until their capital contribution plus imputed interest was returned, and thereafter the profits were to be divided equally between the Ashers and Susman.

The basic dispute between the parties concerned whether the partnership intended to develop the residential portion of the property (approximately 800 acres). It is Susman’s position that in 1969 and 1970 he formulated a development plan, to which the Ashers agreed, involving a sale of a portion of the property to a residential user who would bring in water, sewer and roads at the user’s expense. Such a plan would benefit the partnership since the partnership could then use these facilities to develop the remaining property.

The Ashers, on the other hand, contend that it was the intention of the parties from the inception of the partnership to develop the residential property. They assert that they did not invest over $2.3 million in order to permit Susman to earn half the profits by merely arranging a sale of the property. They further contend that Susman violated the agreement by failing to act as a developer.

After the property was acquired, the Ashers, with the concurrence of Susman, rejected various offers to purchase the property in its entirety. In 1972, advertisements were placed in the Wall Street Journal seeking users for the property. In 1973, Susman began negotiations with the Rossmoor Corporation, a developer of retirement communities, concerning the possible sale of a portion of the property. According to Susman, he and Norman Asher negotiated extensively with Rossmoor. However, the proposal was rejected. According to the Ashers, Susman did virtually nothing with respect to the property after this rejection.

In August 1974, a meeting occurred in the office of Norman Asher. The parties disagree as to what occurred at the meeting. According to Susman, Norman Asher announced that Susman had “too good a deal” and that he was no longer a partner. The Ashers, on the other hand, contend that Susman asserted at the meeting that it was not his responsibility to do anything other than arrange a sale of the property and insisted that the Ashers agree to the Rossmoor proposal.

The partnership property had been placed in land trusts with the Schaumburg State Bank as trustee. Gilbert Asher and Susman jointly possessed the power of direction for said trusts. Pursuant to a “Declaration of Nomineeship,” Gilbert Asher and Susman acknowledged that they held the beneficial interest in said trusts only as nominees for the partnership and that they would “deal and treat” with the beneficial interest ”as and only as and when directed” by the partnership.

On September 20, 1974, the Ashers sent a letter to Susman instructing him to execute certain directions to the trustee which would result in the transfer of the partnership property to another entity. It is undisputed that Susman would not have received a power of direction in the new land trust to be created. Susman refused to act. On September 27, 1974, the Ashers wrote Susman informing him that “by virtue of your failure to execute and deliver the directions to Schaumburg State Bank as requested *** you have defaulted under your agreements ***. These defaults are in addition to other previous defaults by you contrary to and in violation of your covenants, representations, and commitments in said five Venture agreements.” The notice did not identify these “previous defaults.”

In 1976 the Ashers filed a lawsuit against the Schaumburg State Bank in which they sought an order compelling the bank to assign the property to new entities. On May 26, 1976, the Ashers were granted judgment on the pleadings.

On May 28, 1976, Susman filed this action in which, among other allegations, he contended that the Ashers arbitrarily and capriciously refused to agree to develop the property in the manner he recommended and that the Ashers refused to deal with him as a partner. In their answer the Ashers affirmatively asserted that by his conduct, Susman had repudiated his obligations and thus abandoned the partnership. Subsequently, the Ashers filed a counterclaim in which they asserted that Susman’s conduct not only constituted a repudiation and abandonment of the agreement but that his conduct had damaged the partnership.

On April 28, 1978, Judge John F. Hechinger ruled on a motion to dismiss Susman’s complaint and a motion for summary judgment filed by the Ashers. Judge Hechinger found that the Ashers had not acted unreasonably in rejecting Susman’s proposals to sell the property or had interfered with Susman’s performance of his obligations under the agreement. The court further found that it could not, on a ruling for summary judgment, declare as a matter of law that Susman had or had not performed all of his duties under the agreement and, therefore, the agreement was still in full force and effect. The court ordered the Ashers to provide Susman with any documents required to be made available to him under the agreement.

In regards to the Ashers’ counterclaim against Susman, Judge Hechinger found that Susman had not been properly served with notice of default and, therefore, the counterclaim was dismissed without prejudice.

Despite the commencement of the litigation, Susman continued his efforts to find a purchaser. In 1977, he procured an offer from the Zale Construction Company (Zale) to purchase the property. The Ashers indicated that they might consent to a sale of a portion of the property. In March 1978, Zale made a formal offer to purchase which was rejected by the Ashers. Thereafter, Susman notified the Ashers of his intention to invoke the “buy-out” provision of the agreement. This provision stated that if a'partner obtained a “bona fide offer to purchase” the partnership’s property and tendered it to the partnership, then the other partners had to either buy out that partner’s interest for cash or accept the “bona fide offer.” The Ashers rejected this demand because they believed that the Zale proposal was not a “bona fide offer.” However, in August 1978, the Ashers sold a portion of the property to Zale without Susman’s participation. Subsequently, Susman amended his complaint to add a count alleging a breach of the “buy-out” provision.

This matter proceeded to trial before Judge Albert Green on Susman’s third amended complaint and the Ashers’ amended counterclaim. Following the presentation of extensive evidence, Judge Green found that the conduct of the Ashers constituted an expulsion and “freeze-out” of Susman from the partnership. Said conduct included serving Susman with a notice of default, telling him that he was no longer a partner, removing his name from the partnership tax returns, and refusing to provide him with access to partnership books, records and information. The court further found that the Ashers’ failure to accept or match the Zale offer constituted a breach of the agreement. The court also found that the Zale offer was a “bona fide offer” under the terms of the agreement.

On April 3, 1981, the court ordered the dissolution and winding up of the partnership, an accounting, and a judicial sale of the partnership property. In addition, the court stated that Susman was entitled to damages consisting of the amount he would have realized from the Zale offer ($645,000) or his share of the proceeds from the judicial sale, whichever sum was larger. It is from this order that the Ashers appeal.

I

The Ashers first urge this court to hold, as a matter of law, that Susman’s refusal to develop the residential property constituted a repudiation of the agreement and an abandonment of his interest in the partnership. They contend that the agreement unambiguously provided for a broad and intensive effort at development by Susman. For example, article Ill-section 3.1 entitled “Management and Development” provided:

“*** the management of the affairs and activities of the Partnership in connection with the development or construction of building and structures and all appurtenances thereto on the Real Property, including the building and construction of all industrial and commercial buildings, residential areas, shopping centers, highways and road net works, sewer, water and power systems and apartment houses, as an investment of the Partnership, shall be in Susman. Susman covenants and agrees that, upon the prior written request and approval of the General Partner, Susman will do, accomplish, complete or cause to be done, accomplished and completed for and on behalf of the Partnership any or all of the following with respect to the development and construction of the Real Property, as an investment of the Partnership.”

In addition, section 3.2 provided:

“After completion of all or substantially all of the development and construction of all or a portion of the Real Property (herein the “Completed Projects”), the management of the affairs and activities of the Completed Projects shall be in the General Partner and, except as otherwise expressly provided herein, all decisions affecting Completed Projects shall be made by the General Partner.”

Although it is clear that the parties certainly contemplated the possibility of residential development, we cannot say as a matter of law that the agreement unambiguously required it. As we have previously pointed out, the purpose of the partnership was “*** to develop, construct, own, operate, maintain and lease or otherwise sell the Real Property, in whole or in part ***.” (Emphasis added.) The agreement did not require the parties to perform all these options. Pursuant to section 3.1, the Ashers were to give Susman written notice of those activities they wished accomplished with respect to the property.

In the alternative, the Ashers contend that the trial court’s finding that Susman did not breach the agreement by disclaiming his responsibility to develop the residential property was erroneous. Whether a party has breached a contract is a question for the trier of fact. Its finding on this issue will not be disturbed unless it is contrary to the manifest weight of the evidence. B & C Electric, Inc. v. Pullman Bank & Trust Co. (1981), 96 Ill. App. 3d 321, 421 N.E.2d 206; Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791, 405 N.E.2d 1051.

The Ashers insist that despite their oral instructions to the contrary, Susman consistently maintained that his only responsibility with respect to the residential property was to obtain a purchaser for it. Susman, however, presented conflicting evidence in this regard. Susman testified that he formulated a development plan involving the sale of the residential property. He asserted that not only did the Ashers agree with his plan, they assisted in its implementation by negotiating with Rossmoor and placing advertisements for a sale in the Wall Street Journal. Susman further points out that it is undisputed that the Ashers never delivered to him any written instructions concerning the development pursuant to section 3.1 of the agreement. He also denied the Ashers’ assertion that they gave Susman oral instructions to develop the residential property.

In nonjury cases, the credibility of the witnesses and the weight afforded their testimony are questions to be determined by the trial court. (Shanahan v. Schindler (1978), 63 Ill. App. 3d 82, 379 N.E.2d 1307.) In the instant case, the trial court heard conflicting evidence as to which party breached the agreement. We cannot say that the trial court’s decision to believe Susman’s account of his relationship with the Ashers and its conclusion that Susman did not repudiate the agreement were against the manifest weight of the evidence. Thus, the trial court’s finding in this regard will not be disturbed.

II

The trial court found that the Ashers breached the agreement by expelling Susman from the partnership and that their actions made it impracticable to carry on the business of the partnership. Pursuant to the Illinois Uniform Partnership Act (Ill. Rev. Stat. 1979, ch. lOG1^, par. 32(l)(d)) a court shall order the dissolution of a partnership when “a partner wilfully or persistently commits a breach of the partnership or agreement, or otherwise so conducts himself in matters relating to the partnership business that it is not reasonably practicable to carry on the business in partnership with him.” The Ashers contend that' their alleged breaches were not serious enough to warrant dissolution of the partnership.

After considering all the evidence, the trial court concluded that the Ashers treated Susman as if he had no interest in the partnership. The court found that the Ashers told Susman that he was no longer a partner; altered the partnership tax returns to indicate that Susman’s interest was zero; excluded Susman from partnership business; denied him information concerning the activities of the partnership; and refused to account for partnership expenses. We cannot say that the trial court’s conclusion that these actions necessitated dissolution was erroneous. When the relations existing between partners render it impracticable for them to conduct business beneficially, dissolution is proper. (Mandell v. Centrum Frontier Corp. (1980), 86 Ill. App. 3d 437, 407 N.E.2d 821.) Furthermore, failure to account to a partner is grounds for an order of dissolution. Block v. Dardanes (1980), 83 Ill. App. 3d 819, 404 N.E.2d 807.

The Ashers also contend that the question of their alleged breach of the agreement was decided against Susman by Judge Hechinger in his order of summary judgment. Judge Hechinger found that the Ashers had not “in any way wrongfully interfered with plaintiffs in the performance of their duty under the contract or have unreasonably rejected or interfered with any development plans or proposals for the sale of the property by plaintiffs.” We do not believe, however, that this holding precluded a later finding that the Ashers breached the agreement in a manner other than interfering with Susman’s performance. As we have previously discussed, Judge Green found that certain actions constituted an expulsion from the partnership. Such a finding was not contrary to a prior controlling judgment, as the Ashers assert.

Ill

The Ashers next allege that the trial court erred in finding that the Ashers’ refusal to accept or meet the Zale proposal breached the “buy-out” provision of the agreement. Pursuant to this provision, the Ashers had the right to force the partnership to make a sale of property, sale of real property or a sale of improvements. In contrast, Susman only had the right to force the sale of property. Section 1.5 of article I of the agreement defines the following terms:

“(a) The term ‘Real Property’ shall mean the portion of real property acquired, described in, and forming the subject matter of the Real Estate Agreement.
(c) The term ‘Property’ shall mean the Real Property, all improvements made thereto and all other properties and assets of the Partnership.”

It is undisputed that the real estate which was the subject of the Zale offer to purchase property was for unimproved land. According to the definitions in the contract, this land was “real property.” Pursuant to the buy-out provision Susman could not force a sale of “real property.” Therefore, Susman had no right to force the Ashers to accept the Zale offer to purchase real property, and the trial court’s finding in this regard was erroneous. Therefore, that portion of the judgment which awarded Susman money damages in connection with the Ashers’ refusal to accept or match the Zale offer must be reversed. The judgment is affirmed in all other respects.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part and reversed in part.

Affirmed in part, reversed in part.

WHITE, P.J., concurs.

JUSTICE RIZZI,

concurring in part and dissenting in part:

While I agree with the majority that the judgment of the trial court should be affirmed regarding the issues of breach of the agreement and dissolution of the partnership, I dissent from the majority’s decision to reverse that portion of the judgment awarding damages due to the Ashers’ refusal to accept or match the Zale offer.

The majority acknowledges that the trial court carefully considered the evidence and evaluated the credibility of the witnesses in deciding that Susman did not breach the agreement and that dissolution of the partnership was the appropriate remedy. I believe that the trial court gave this same careful consideration to the issues relating to the Zale offer, and since the decision of the trial court regarding these questions was not against the manifest weight of the evidence, it should be affirmed.

In construing an agreement, the primary objective is to determine and give effect to the intention of the parties at the time they entered into the contract. (Ancraft Products Co. v. Universal Oil Products Co. (1981), 100 Ill. App. 3d 694, 697, 427 N.E.2d 585, 587.) The intention of the parties must be gathered from the contract as a whole and not merely from any clause standing alone. (Goldblatt Brothers, Inc. v. Addison Green Meadows, Inc. (1972), 8 Ill. App. 3d 490, 495, 290 N.E.2d 715, 717-18.) If the trial court determines that the agreement is ambiguous, then parol and extrinsic evidence are admissible to explain and ascertain what the parties intended. (See Terracom Development Group, Inc. v. Coleman Cable & Wire Co. (1977), 50 Ill. App. 3d 739, 744, 365 N.E.2d 1028, 1032.) While the issue of whether or not an ambiguity exists is a question of law (Ancraft Products Co. v. Universal Oil Products Co. (1981), 100 Ill. App. 3d 694, 697, 427 N.E.2d 585, 587), where an ambiguity has been found and the extrinsic evidence is in conflict, a fact question is presented for determination by the trier of fact. See Storybook Homes, Inc. v. Carlson (1974), 19 Ill. App. 3d 579, 582-83, 312 N.E.2d 27, 29.

Here, the trial court permitted extrinsic evidence to be introduced at trial. This evidence was contradictory in material respects. In finding that under the terms of the agreement the Ashers were required to match or accept the Zale offer, the trial court weighed the evidence relating to this issue and found the weight of the evidence to be in favor of Susman and against the Ashers.

Since the buy-out provision, when construed as part of the agreement as a whole, admits of more than one interpretation, I believe the trial court properly admitted and considered extrinsic evidence on the issue. The testimony regarding the buy-out provision was important to a determination of the parties’ intent under the agreement. The intent of the parties was a factual question to be determined by the trier of fact. A reviewing court will not substitute its judgment as to the credibility of witnesses for that of the trier of fact who had the opportunity to see and hear the witnesses, unless the findings of the trier of fact are contrary to the manifest weight of the evidence. (Riemer Brothers, Inc. v. Marlis Construction Co. (1978), 64 Ill. App. 3d 80, 83, 380 N.E.2d 1160, 1163.) Here, the record does not demonstrate that the trial court’s finding that the Ashers were required by the buy-out provision to match or accept the Zale offer is against the manifest weight of the evidence. Therefore, the finding should not be disturbed.

For the same reasons, I believe that the trial court’s finding that the Zale offer was a bona fide offer under the agreement should also be upheld. The record demonstrates that the trial court was fully apprised of the substance of the Zale offer, and the record does not establish that the trial court’s finding that the offer was a bona fide offer is against the manifest weight of the evidence.

Since I believe that the trial court’s judgment awarding Susman money damages on the basis of the Zale offer and the buy-out provision of the agreement should be affirmed, I will address the related issues raised by the Ashers.

The trial court awarded Susman as damages the amount he would have realized under the Zale offer ($645,000) or his share of the proceeds from a judicial sale, whichever sum is larger. The Ashers contend that this was error because the trial court should have forced an election of remedies by Susman. However, the doctrine of election of remedies is applicable only in instances where the plaintiff would otherwise receive a double recovery, or the defendant has actually been misled by the plaintiff’s conduct, or res judicata can be applied. (District 141, International Association of Machinists & Aerospace Workers v. Industrial Com. (1980), 79 Ill. 2d 544, 550-51, 404 N.E.2d 787, 789.) Here, Susman would not receive a double recovery since the two measures of damages are alternative rather than additive. Also, the evidence and the findings of the trial court establish that the Ashers were not misled, and res judicata is plainly not applicable. Thus, there is no basis for applying the doctrine of election of remedies to the present case.

In addition, since the trial court entered judgment in favor of Susman on the merits, fairness dictates that Susman should not be compelled to make an election as to the damages he is to receive before the alternative amounts are determined. Otherwise, it may cause an unjust result to the prevailing party and a benefit to the party against whom judgment was entered on the merits. On this same point, the Ashers’ additional contention that the trial court’s judgment is speculative simply because it provides for alternative relief is also untenable. All that the judgment requires is that Susman choose between the alternative damages once the judicial sale is completed. Merely because the judgment gives Susman the right to choose between damages does not mean that the judgment is speculative.

The Ashers also argue that the amount of the money judgment is excessive because the trial court determined the damages as of April 24, 1978, rather than October 1, 1978. The Ashers’ argument is based on the premise that the Zale proposal, if accepted by the Ashers, was to have closed on August 1, 1978, and that thereafter the partnership would have had to wind up its affairs and distribute its assets pursuant to the agreement, which means that Susman would not have received his pro rata share until approximately October 1, 1978. The Ashers’ argument is without merit because the trial court properly concluded that Susman was entitled to payment for his partnership interest as of the date when the Ashers breached the agreement, which under the facts occurred as of the expiration of the Zale offer on April 24, 1978. The Ashers also argue that the trial court’s award of damages was excessive because no partnership expenses were deducted from the prospective Zale proceeds. However, the amount of damages was a factual question to be determined by the trier of fact based upon the evidence offered at trial by the respective parties. Here, the Ashers do not point to any specific evidence that was offered at trial which resulted in a miscalculation by the trial court in its determination of the amount of the damages.

The Ashers next contend that the trial court improperly awarded Susman prejudgment interest because “the time when the Ashers should have paid Susman the amount due cannot be precisely determined; and the amount due is not subject to precise computation.” However, as previously stated, the trial court properly determined that the breach occurred as of April 24, 1978. Therefore, the damages, including prejudgment interest, were properly calculated as of that date. It follows from this fact, plus the fact that the trial court properly determined the amount of the judgment to be $645,000, that the amount due is subject to precise computation.

Accordingly, I believe the judgment of the trial court should be affirmed in its entirety.

      The Ashers also contend that if this court accepts Susman's testimony that he never intended to develop the residential property, then they are entitled to have the agreement rescinded because its plain and unambiguous terms evidence a contrary representation by Susman. However, as we have previously discussed, the agreement did not plainly require the development of the residential property.

      In view of this holding, it is unnecessary for us to consider the Ashers’ arguments that the Zale proposal was not a “bona fide offer” and that the money judgment was improper.