text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NORMAN PIERRE PITT, Defendant-Appellant.
    Fifth District
    No. 80-178
    Opinion filed May 3,1982.
    John H. Reid and Randy E. Blue, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Don W. Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant, Norman Pierre Pitt, appeals from a judgment entered in the circuit court of Madison County on a conviction of armed violence returned by a jury and a sentence of 15 years imposed by the court. Pitt raises two issues by this appeal. First, he contends that the State of Illinois lacks jurisdiction over the instant offense, which was committed on a bridge spanning the Mississippi River between the State of Illinois and the State of Missouri. Second, Pitt asserts that his sentence is excessive because a material element of the offense was the sole aggravating factor on which the circuit court relied in imposing sentence. We affirm the judgment of the circuit court.

The defendant was charged by an amended information with the offenses of murder and armed violence based on the shooting death of Jacqueline Faye Shipley. The evidence at trial established that the defendant shot the deceased while both were passengers in an automobile traveling east on the McKinley Bridge, which spans the Mississippi River between St. Louis, Missouri, and Venice, Illinois. The driver of the vehicle testified that after the shooting began, he made a U-turn on the bridge, after which the body of the deceased was removed from the vehicle and deposited on a westbound lane on the bridge. The defendant then assumed control of the vehicle and returned to St. Louis. The body was discovered about 1305.5 feet west of the eastern end of the bridge’s superstructure. The defendant filed a motion to dismiss the charge for lack of jurisdiction which the circuit court denied. After trial, the jury found the defendant not guilty of murder, but guilty of the lesser included offense of voluntary manslaughter and guilty of armed violence. The trial court imposed a sentence of 15 years of imprisonment on the armed violence conviction. No judgment was entered on the voluntary manslaughter verdict. The defendant thereafter perfected an appeal to this court.

The defendant’s first assertion of error is that the State of Illinois lacked jurisdiction of this offense. The general rule is that where an act occurs outside of the State of Illinois the circuit courts lack jurisdiction over the offense. (People v. Bovinett (1979), 73 Ill. App. 3d 833, 835, 392 N.E.2d 428.) The prosecution in this case predicated jurisdiction on the Act of Congress authorizing the formation of the State of Illinois. This statute provides, in part, for Illinois to have “concurrent jurisdiction on the Mississippi River, with any state or states to be formed west thereof, so far as said river shall form a common boundary to both.” (“An Act to enable the people of the Illinois territory to form a constitution and state government, and for the admission of such state into the Union on an equal footing with the original states.” (April 18, 1818, ch. LXVII, sec. 2, 3 Stat. at 428, 429 (1818) (hereinafter cited as the Statehood Admission Act).)) The defendant contends that this grant of concurrent jurisdiction does not extend to a crime committed on an interstate bridge which links two States across the river and that, because the People failed to prove beyond a reasonable doubt that the crime occurred on the Illinois side of the bridge, the defendant’s conviction must be reversed. Neither the parties’ briefs nor our own research has disclosed any Illinois cases directly on point. Our analysis in construing the Statehood Admission Act will therefore rely on the construction of similar statutes by the courts of other jurisdictions.

The defendant’s argument rests on authority which is, at best, tenuous. The defendant cites McGowan v. Columbia River Packers’ Association (1917), 245 U.S. 352, 62 L. Ed. 342, 38 S. Ct. 129, and Wedding v. Meyler (1904), 192 U.S. 573, 48 L. Ed. 570, 24 S. Ct. 322. The issue in McGowan was whether a Federal district court had jurisdiction to order the abatement of a nuisance located in a riverbed which had previously been determined to be located outside of the district in which the court sat. The court in Wedding expressly refrained from deciding the extent to which a grant of concurrent jurisdiction would “determine the civil or criminal effects of acts done upon the river # ° (192 U.S. 573, 584, 48 L. Ed. 570, 575, 24 S. Ct. 322, 324.) We therefore find these cases inapplicable to the determination of the extent of concurrent jurisdiction over crimes presented by the instant case. The defendant also cites Smoot v. Fischer (Mo. App. 1952), 248 S.W.2d 38, and subsequent cases confining Smoot to its facts, as support for the converse of the Smoot holding. We find this analysis to be strained and the line of authority therefore unpersuasive. The defendant’s brief also notes State v. City of Hudson (1950), 231 Minn. 127, 42 N.W.2d 546, but the issue in that case was whether a toll bridge located partly in Minnesota and partly in Wisconsin was exempt from personal property taxes levied by Minnesota. The question of criminal jurisdiction now before us was not at issue in City of Hudson, and we therefore decline to consider that case as authority for the defendant’s contention.

In Nielsen v. Oregon, the United States Supreme Court had occasion to determine the extent to which jurisdiction extended under a statute similar to the one in the case at bar. (Nielsen v. Oregon (1909), 212 U.S. 315, 53 L. Ed. 528, 29 S. Ct. 383.) In dicta, the court stated that “[undoubtedly one purpose, perhaps the primary purpose, in the grant of concurrent jurisdiction, was to avoid any nice question as to whether a criminal act sought to be prosecuted was committed on one side or the other of the exact boundary in the channel, that boundary sometimes changing by reason of the shifting of the channel.” (212 U.S. 315, 320, 53 L. Ed. 528, 530, 29 S. Ct. 383, 384.) The supreme court of the State of Minnesota analyzed a strikingly similar issue in State v. George (1895), 60 Minn. 503, 505-06, 63 N.W. 100.100-01:

“Some of the purposes of this concurrent jurisdiction are to enforce proper police regulation on the river, and to regulate and protect interstate traffic on and across the river, and the persons engaged in the same. If public travel across the river at this point was carried on by means of a ferry boat, there is no question but that this concurrent jurisdiction would attach during the transit across the river. The fact that the appliance by means of which the travel is carried on is a bridge instead of a ferry boat does not change the rule. The question here involved is not whether the courts of Minnesota have jurisdiction over this permanent structure on this island considered as real estate, but whether Minnesota and her courts have jurisdiction over the persons and moving or movable vehicles and things on this bridge. In our opinion, it is not material whether, at the time of the occurrence, such persons happened to be over the water of the river, or over an island in the river, or at one side of the main channel or the other. One of the reasons for establishing this concurrent jurisdiction was to prevent the escape of criminals on account of the uncertainty that so frequently arises as to whether the act was committed on one side of the middle of the main channel or the other side of it. This uncertainty exists just as well when the act is committed on a bridge as when committed on a water craft. A traveler on such a bridge is usually not likely to know whether he is over an island or over the water, or on one side of the main channel or the other.”

We therefore hold that where, as here, a criminal act occurs on a bridge over the Mississippi River between Missouri and Illinois, under the Statehood Admission Act the prosecution may establish the jurisdiction of the Illinois courts by proof that the crime occurred on the bridge, and we specifically do not require proof that the crime took place on some particular portion of the bridge.

The defendant’s second assertion of error in the circuit court is that the sentence imposed on the defendant is excessive because the sole aggravating factor relied on by the court was a material element of the offense. The trial court found in aggravation that the defendant’s conduct had resulted in death. The defendant contends that our supreme court’s decision in People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, mandates us to vacate the defendant’s sentence and remand for a new sentencing hearing. This we decline to do. Conover prohibits consideration of a “factor necessarily implicit” in the charged offense as an aggravating factor in sentencing. (84 Ill. 2d 400, 404.) Armed violence has only two elements: (1) the commission of any felony and (2) while armed with a dangerous weapon. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(a).) Although death resulting from the defendant’s conduct is an element of voluntary manslaughter, it is not an element of armed violence. The only aspect of the underlying offense which is an element of armed violence is the legislature’s characterization of the predicate offense as a felony. Because death resulting from the defendant’s conduct is not an element of armed violence, even though it is an element of the predicate offense, Conover does not prohibit the trial court from considering it for purposes of sentencing. This interpretation of the Conover rule is supported by examining the rationale underlying that case in light of the unique nature of the offense of armed violence. Because armed violence is committed when any felony is accompanied by the presence of a dangerous weapon, a wide variety of acts may serve as the basis for an armed violence charge.

The situation with armed violence, then, is quite the opposite of the Conover rationale. In Conover, the court held that because “most burglaries and every theft involve proceeds, it is reasonable to conclude that the legislature already considered that factor in establishing the penalties.” (84 Ill. 2d 400, 405.) The same generalization does not apply to armed violence — not every armed violence offense involves death — so we do not conclude that the legislature has already considered that factor in establishing the range of penalties for this crime.

Because we have resolved both of the defendant’s contentions of error against him, we affirm the judgment of the circuit court of Madison County.

Affirmed.

WELCH and JONES, JJ, concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE KARNS

license: Public Domain

text:
    BILLY C. KEMPER, Plaintiff-Appellant, v. ROBERT P. WORCESTER et al., Defendants-Appellees.
    Fifth District
    No. 81-249
    Opinion filed May 6,1982.

      William A. Sunderman and Janett S. Winter-Black, both of Anderson Law Offices, of Charleston, for appellant.
    Robert L. Douglas and Charles C. Roberts, both of Law Offices of Robert L. Douglas, Ltd., of Robinson, for appellees.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

Billy C. Kemper brought an action against Robert P. Worcester and Willis D. Lamson in the circuit court of Jasper County alleging that they had caused his discharge as president and trust officer of the First National Bank of Newton by tortiously interfering with his contractual relationship with the bank. Defendants moved for judgment on the pleadings, and the court entered judgment for defendants relying on our decision in Kemper v. First National Bank (1981), 94 Ill. App. 3d 169, 418 N.E.2d 819, which held that a national bank incurs no liability under the National Bank Act (12 U.S.C. sec. 24 (1976)) for discharging an officer of the bank prior to the time his contractual period of employment expires. The trial court considered that the plaintiff had no legally protected interest in his position as president of a national bank.

On February 14, 1978, plaintiff was hired as president and trust officer of the First National Bank of Newton “for the ensuing year.” In April of 1978, the board of directors voted to discharge plaintiff because he purchased stock in the bank without disclosing the purchase to the board. Thereafter, plaintiff filed two lawsuits, one against the bank for wrongful discharge and the second against the defendant members of the board, individually.

As to the first lawsuit, the bank moved for judgment on the pleadings. The trial court, in granting the motion, relied on section 24, paragraph 5, of the National Bank Act which provides that a national banking association shall have the power “[t]o elect or appoint a president, vice-president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure and appoint others to fill their places.” (Emphasis added.) (12 U.S.C. §24, par. 5 (1976).) On appeal, in affirming the trial court, we noted that:

“Here, the plaintiff accepted his employment with knowledge, actual or imputed, of the board’s authority to dismiss him at its pleasure. Once the board’s approval of his appointment was withdrawn, his contractual status as an employee vanished, and he had no legal right upon which to base his claim.” Kemper v. First National Bank (1981), 94 Ill. App. 3d 169,171,418 N.E.2d 819,821.

The instant appeal arises from the second lawsuit. Plaintiff, in his fourth amended complaint, alleges that defendants “intentionally, wantonly, maliciously and without justification interfered, disrupted and damaged the employment rights of plaintiff.” Plaintiff further alleges that, as a result of the interference, he sustained losses in employment benefits, salary and damage to his reputation in the banking community. As stated, defendants moved for judgment on the pleadings citing the prior lawsuit and stating that, as a matter of law, plaintiff failed to state a cause of action. The trial court granted the motion and entered judgment for defendants finding our decision in Kemper to be dispositive.

We note at the outset that a motion for judgment on the pleadings tests the sufficiency of the pleadings as a matter of law (Johnson v. Town of the City of Evanston (1976), 39 Ill. App. 3d 419, 350 N.E.2d 70), and that uncontested, well-pleaded allegations of fact will be, for the purposes of review, deemed to be true. (Keller v. Brunswick Corp. (1977), 54 Ill. App. 3d 271, 369 N.E.2d 327.) On review of an order granting judgment on the pleadings, we must ascertain whether the trial court correctly determined that no genuine issue as to any material fact was presented by the pleadings and, if there was no such issue, whether judgment was correctly entered. Upper Avenue National Bank v. First Arlington National Bank (1980), 81 Ill. App. 3d 208, 400 N.E.2d 1105.

In the instant case, it is undisputed that plaintiff’s fourth amended complaint recites the necessary elements to state a cause of action for tortious interference with advantageous or contractual relations. Thus, the sole issue raised on appeal is whether section 24, paragraph 5, of the National Bank Act (12 U.S.C. §24, par. 5 (1976)), as applied in Kemper v. First National Bank (1981), 94 Ill. App. 3d 169,418 N.E.2d 819, precludes plaintiff from maintaining a cause of action for tortious interference with advantageous or contractual relations under the facts presented. In making this determination, it is necessary to examine the nature of the action in the instant case and in the prior lawsuit.

In Kemper, plaintiff brought an action for wrongful discharge against First National Bank in Newton and sought damages following as a consequence of the dismissal. The issue in that case was whether a national bank may dismiss an officer before the expiration of his stated tenure, without incurring liability for wrongful discharge or breach of contract. Relying on section 24, paragraph 5 of the National Bank Act, we affirmed the trial court’s grant of defendant’s motion for judgment on the pleadings and noted that “* * * although a national bank may contract to employ an officer for a definite period of time, it may not bargain away its right, granted by statute, to discharge officers ‘at pleasure.’ ” (94 Ill. App. 3d 169,171,418 N.E.2d 819, 821.) Kemper, therefore, stands for the proposition that, by virtue of the National Bank Act, the board of directors of a national bank may dismiss an officer prior to the expiration of his term, without incurring liability for wrongful discharge or breach of contract on the part of the bank.

In the instant case, plaintiff brought an action in tort for unjustified interference with advantageous or contractual relations against defendants, two of the directors of the First National Bank in Newton, and sought damages incurred as a result of defendants’ interference with his employment rights. The trial court, relying solely on our decision in Kemper, granted defendants’ motion for judgment on the pleadings. Plaintiff asserts that the trial court erred in granting the motion in that plaintiff’s fourth amended complaint states a cause of action and presented questions of fact not considered by the trial court. We agree.

Defendants argue, and the trial court found, that plaintiff had no legally protected rights in his position as president of the bank and therefore, as a matter of law, plaintiff could not maintain an action for tortious interference. Defendants further argue that the employment agreement between plaintiff and the bank does not give rise to a legitimate expectation of future employment and therefore cannot serve as a foundation for an ongoing business relationship. This argument indicates a misunderstanding of what relationships or agreements are sufficient upon which to base a cause of action for tortious interference. The relationship or agreement need not be enforceable by plaintiff as a contract; rather, it is the interference with the relation which creates the actionable tort. The following passage from Professor Prosser’s treatise is illustrative:

“The law of course does not object to the voluntary performance of agreements merely because it will not enforce them, and it indulges in the assumption that even unenforceable promises will be carried out if no third person interferes. Accordingly, it usually is held that contracts which are voidable by reason of the statute of frauds, formal defects, lack of consideration, lack of mutuality, or even uncertainty of terms, or harsh and unconscionable provisions, or conditions precedent to the existence of the obligation, can still afford a basis for a tort action when the defendant interferes with their performance.” (Prosser, Torts sec. 129, at 932 (4th ed. 1971).)

Therefore, we must determine whether plaintiff’s position as president of the bank constitutes a sufficient relationship or agreement upon which to base such an action.

In the instant case, the effect of the relevant section of the National Bank Act is that it created an employment contract terminable at the will of the bank even though the apparent intent of the parties was that it was for a term of one year. Although there is some contrary authority, the better view with regard to contracts terminable at will is that they are actionable “since until it is terminated the contract is a subsisting relation, of value to the plaintiff, and presumably to continue in effect.” (Prosser, Torts sec. 129, at 933 (4th ed. 1971); see also Restatement (Second) of Torts sec. 766, comment g, at 10-11 (1979); Kozlowsky v. Westminster National Bank (1970), 6 Cal. App. 3d 593,86 Cal. Rptr. 52.) In Kozlowsky, the former president of a national bank brought an action for damages, as a result of his discharge, against the bank and two stockholders, one alleged to be a director and controlling shareholder. The complaint contained three counts; count I for breach of a one-year written employment contract; count II for deceit and count III for intentional interference with contractual relations. The court sustained defendants’ demurrer as to the contract action relying on section 24, paragraph 5, of the National Bank Act. As to count III, the court held that, even though the statute renders the relationship terminable at will, it is the interference with the relation which is the actionable tort and therefore, plaintiff stated a cause of action. In the instant case, as in Kozlotvsky, the employment agreement between plaintiff and the bank, albeit terminable at will, constituted a sufficient relationship or agreement upon which to base a cause of action for tortious interference with advantageous or contractual relations.

Defendants argue that, even if plaintiff’s position does give rise to a legitimate expectation of future employment, defendants, as individual directors of the bank, are privileged to urge the entire board to dismiss an officer of a national bank. Plaintiff, in his fourth amended complaint, alleges the existence of the employment relationship and the requisite elements for tortious interference with that relationship. Whether the actions of the defendants were privileged because of their position as directors of the bank is a matter of defense, which they will have the burden of establishing, and does not affect the determination as to whether the complaint states a cause of action. See Kozlotvsky; Prosser, Torts sec. 129, at 943 (4th ed. 1971).

In light of the foregoing, we find that plaintiff’s fourth amended complaint stated a cause of action for tortious interference with advantageous or contractual relations and presented genuine issues of material fact not considered by the trial court. Therefore, we reverse the judgment of the Circuit Court of Jasper County and remand for further proceedings consistent with the views expressed herein.

Reversed and remanded.

WELCH and HARRISON, JJ„ concur.


author: JUSTICE WEBBER

text:
    RAYMOND E. O’BRIEN et al., Plaintiffs-Appellants, v. WILLIAM R. NOBLE et al., Defendants.—(NEIL SCHURTER et al., Defendants-Appellees.)
    Fourth District
    No. 17563
    Opinion filed May 12,1982.
    Rehearing denied June 9,1982.

      Lawrence E. Johnson & Associates, of Champaign (Lawrence E. Johnson and Stephen N. Greenleaf, of counsel), for appellants.
    Hatch, Blockman & McPheters, of Champaign (Brian L. McPheters, of counsel), for appellee Neil Schurter.
    Reno, O’Byrne & Kepley, of Champaign (Glenn A. Stanko, of counsel), for appellees Carol Springer and Gary Crane.
   JUSTICE WEBBER

delivered the opinion of the court:

Plaintiffs appeal from a judgment of the circuit court of Champaign County, sitting without a jury, in favor of all defendants in a suit against defendants Springer and Crane for negligent misrepresentation and against defendant Schurter for malpractice. We affirm.

The background of the controversy as revealed by the evidence arises out of the purchase by plaintiffs of certain real estate located in Champaign County. Defendant Crane is a real estate broker and defendant Springer is a broker employed by him. Crane placed an advertisement in a Champaign newspaper for certain property listed with him. It was a display advertisement with a picture of the premises and the Crane logotype, the significant language being as follows:

“FIVE ACRES
Exclusive area located South of Fisher — plenty of trees. Telephone and electricity available. Restricted to one house only. For further details and restrictions call [telephone number].”

Plaintiffs called the indicated telephone number and talked with defendant Springer. Later they went to the site to inspect the property. A second conversation took place during which plaintiff Kathleen O’Brien inquired about a number of things, including restrictions. Defendant Springer gave her an oral description of them together with a “restriction sheet” and a copy of a survey; she was also permitted to view a multiple listing sheet containing some additional general information. Afterwards Springer provided some additional information concerning restrictive covenants on the premises such as frontage and square footage requirements for houses and the use of propane tanks. At no time did plaintiffs make any inquiry concerning zoning.

The culmination was the execution of a form contract to purchase the premises signed by the plaintiffs on November 4,1977, and by the sellers (defendants Noble, who have been dismissed from the case) on the same date. Plaintiffs were not represented by an attorney, although the name of a Champaign attorney appears on the instrument as being their counsel. Defendant Schurter’s name appears as attorney for the sellers. The contract contains two provisions pertinent to the issues here which state:

“11. Subject to existing restrictive covenants, easements and zoning regulations, if any.”
“13. THIS AGREEMENT WILL BECOME BINDING UPON EXECUTION BY THE SELLER.”

A closing date was arranged for November 28,1977, at a Champaign financial institution which was loaning plaintiffs a portion of the purchase price. Plaintiffs arrived, and, according to some of the testimony, were “distressed” to learn that the financial institution was not providing an attorney for them at the closing. At about the same time defendant Schurter arrived with his clients, the sellers. Some conversation ensued between Schurter and the plaintiffs; the evidence is unclear as to whether plaintiffs asked him to “represent” or to “help” them. After some hesitation, Schurter agreed to go over the closing statement with the plaintiffs and record their documents for them. Plaintiffs were aware that he was representing the sellers. Also present at the closing were defendant Springer and another person from her office, and an officer of the lending institution. All testimony concerning the closing indicated that the subject of zoning was never mentioned. The closing was accomplished; Schurter recorded the plaintiffs’ deed for them and was paid a fee of $25 by them.

Subsequently plaintiffs learned that they could not obtain a building permit for a house on the premises because of insufficient frontage under the Champaign County zoning ordinance which became effective in October 1973. This was a developmental standard as distinguished from a permitted use. The property was in conformity insofar as a permitted use was concerned. Upon discovery of the problem, plaintiffs retained an attorney in August 1978; a petition for variance was filed in August 1979 and allowed in October 1979; plaintiffs’ home was completed in May 1980.

Plaintiffs filed a multi-count complaint, naming the seller, Noble, as defendants and seeking various forms of relief against them, but as previously indicated, ultimately dismissed the suit as to them. Plaintiffs proceeded in damages against the brokers, Crane and Springer, as defendants, on a theory of negligent misrepresentation in that they failed to inform plaintiffs of the developmental restrictions in the zoning ordinance; similarly they proceeded against Schurter, the attorney, as defendant, on a theory of malpractice in that he failed likewise at the closing to inform them of the zoning matter. Since the theories are different, clarity demands that we consider them separately.

As to the doctrine of negligent misrepresentation, plaintiffs rely primarily on a British case decided by the House of Lords: Hedley Byrne & Co. v. Heller & Partners, Ltd. [1964] A.C. 465 and its Illinois progeny. In that case an advertising agency purchased advertisements for a business and assumed personal responsibility for the cost. The business subsequently became insolvent and the advertising agency sued the business’ bank, alleging that the bank had been negligent in that it provided plaintiff’s bank with erroneous financial data concerning the business. The House of Lords held that a negligent, though honest, misrepresentation, spoken or written, may give rise to a cause of action for damages for loss caused thereby, apart from any contract or fiduciary relationship, since law will imply a duty of care when a person seeking information from a party possessed of special skills trusts him to exercise due care, and that party knew or ought to have known that reliance was being placed on his skill and judgment. ([1964] A.C. 465, 486, 502, 514.) Since the bank, in providing the financial data, expressly disclaimed any responsibility therefor, this rule was held inapplicable to the defendant in the case, however.

The Illinois Supreme Court adopted the general rationale of Hedley Byrne in Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656. There, a surveyor had made an erroneous survey, despite a guarantee of absolute accuracy contained in the plat of the survey. The court held that a third party, not in privity with the defendant surveyor, could recover damages against him on the basis of his negligent misrepresentation because of

“(1) The express, unrestricted and wholly voluntary ‘absolute guarantee for accuracy’ appearing on the face of the inaccurate plat;
(2) Defendant’s knowledge that this plat would be used and relied on by others than the person ordering it, including plaintiffs;
(3) The fact that potential liability in this case is restricted to a comparatively small group, and that, ordinarily, only one member of that group will suffer loss;
(4) The absence of proof that copies of the corrected plat were delivered to anyone;
(5) The undesirability of requiring an innocent reliant party to carry the burden of a surveyor’s professional mistakes;
(6) That recovery here by a reliant user whose ultimate use was foreseeable will promote cautionary techniques among surveyors.” 43 Ill. 2d 54, 67-68, 250 N.E.2d 656, 663.

Some authorities have found liability under the doctrine in varying fact situations. In McAffee v. Rockford Coca-Cola Bottling Co. (1976), 40 Ill. App. 3d 521, 352 N.E.2d 50, defendant represented to plaintiff that he had a job waiting for him at the Coca-Cola company and in reliance thereon he quit the job he was then holding. In fact, there was no job at Coca-Cola, and the court found liability. In Citizens Savings & Loan Association v. Fischer (1966), 67 Ill. App. 2d 315, 214 N.E.2d 612, the defendant was an official of a corporation which led plaintiffs to believe that there were no outstanding mortgages on real estate which they were purchasing. In fact, the properties were encumbered. The court found alternative bases for liability: fraud and negligent misrepresentation.

Somewhat closer factually to the instant case, Hamming v. Murphy (1980), 83 Ill. App. 3d 1130,404 N.E.2d 1026, held the defendant not liable to the plaintiff in the sale of a business property when the defendant had represented that all the zoning “red tape” had been taken care of, and in fact it had not. The court commented that one is not entitled to rely upon a statement as to what the law is, since all men are presumed to know the law, and zoning matters are of public record and equally accessible to everyone. In Lyons v. Christ Episcopal Church (1979), 71 Ill. App. 3d 257, 389 N.E.2d 623, plaintiff sued the seller and the broker over a purchase of real estate. The broker’s advertisement indicated that the property was connected to the sewer system, but, in fact, it was not. The court held that the broker had no duty to verify and corroborate the seller’s representations unless he is in possession of facts which indicate that they are false. No such evidence was present in that case, and the court imposed no liability on the broker.

The synthesis of these authorities appears to be that liability will be found when the defendant misrepresents facts of which he possesses almost exclusive knowledge and the truth or falsity of which are not readily ascertainable by the plaintiff.

As applied to the instant case, the facts concerning the zoning of the property were a matter of public record and readily available to the plaintiffs. There was no negligent misrepresentation by Springer. In fact, there was no representation at all, in so far as the record indicates, concerning zoning other than the provision in the contract which made the property and the sale subject to applicable zoning regulations. Furthermore, any representation by Springer concerning developmental standards under the Champaign County zoning ordinance would have constituted the unauthorized practice of law. No duty can arise out of a prohibited act. The trial court was correct in finding for Springer and Crane and entering judgment in their favor against the plaintiffs.

We turn next to the malpractice claim against Schurter. Plaintiffs’ theory is that he failed to advise them of the zoning problem at the time of the closing and that this constituted malpractice.

An attorney is liable for malpractice only when he fails to exercise a reasonable degree of skill, not when he makes an error in judgment; his conduct is to be viewed in the context of events at the time of the alleged malpractice, not in the light of subsequent developments. Brainerd v. Kates (1979), 68 Ill. App. 3d 781, 386 N.E.2d 586.

Schurter produced as an expert witness in his behalf a prominent attorney from the Champaign area who practiced considerable real estate law and was an editor of the Code of Professional Responsibility published by the Illinois Institute of Continuing Legal Education. This witness stated in answer to a hypothetical question that Schurter’s conduct conformed to the usual and customary practice of lawyers involved in real estate transactions in Champaign County. He further stated that it was not the custom of attorneys in Champaign County in conducting real estate closings to investigate either permitted uses or developmental standards under local zoning. We agree with the trial court that this testimony is dispositive of the malpractice claim.

The cases cited by plaintiffs turned on issues so remote from the instant case that they do not merit discussion here. Pursued to its logical extreme, plaintiffs’ rationale would require a lawyer who had prepared a simple antenuptial agreement to explain to his clients the ramifications of the Illinois Marriage and Dissolution of Marriage Act, the Probate Act, the Internal Revenue Code, the Family Expense Statute, and perhaps even the Coroner’s Act. To state the proposition is to demonstrate its absurdity.

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

Affirmed.

MILLS and LONDRIGAN, JJ., concur.


author: JUSTICE LONDRIGAN

text:
    NANCY S. WELCH, Plaintiff-Appellant, v. CONVENIENT FOOD MART #550 et al., Defendants-Appellees.—MARILYN R. QUAID, Adm’r of the Estate of Rebecca Jo Quaid, Deceased, et al., Plaintiffs-Appellants, v. CONVENIENT FOOD MART #550 et al., Defendants-Appellees.—NANCY D. BURK, a Minor, by Mary Burk, her Mother and Next Friend, Plaintiff-Appellant, v. CONVENIENT FOOD MART #550 et al., Defendants-Appellees.
    Fourth District
    No. 17484
    Opinion filed May 12,1982.

      Ray Moss, of Herrick, Rudasill & Moss, and Philip R. Lamkin, of Lamkin and Lamkin, both of Clinton, and Loren Thomson, of Thomson, Weintraub & Thompson, of Bloomington, for appellants.
    John P. Lynaugh, of Springfield, for appellees.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Nancy S. Welch, Mary Beth Quaid, and Nancy D. Burk were injured and Rebecca Jo Quaid was killed when their car collided with one driven by David Grover, who allegedly was intoxicated at the time. The trial court granted Convenient Food Mart No. 550 and Champaign National Bank’s motion for summary judgment because the intoxicant was sold not to David Grover but rather to his twin brother, who shared it with him. This appeal does not involve the plaintiffs’ actions against David Grover.

The plaintiffs are suing under article VI, section 14, of the Liquor Control Act (Ill. Rev. Stat. 1979, ch. 43, par. 135), which provides:

“Every person who is injured in person or property by any intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. * * * An action shall lie for injuries to means of support caused by an intoxicated person or in consequence of the intoxication, habitual or otherwise, of any person resulting as aforesaid.”

Although the statute does not say that the sale or gift must be made directly to the person who causes the harm (Tate v. Coonce (1981), 97 Ill. App. 3d 145,149, 421 N.E.2d 1385,1388-89), and indeed is silent on what sales and gifts fall within its scope, the courts have limited, by a variety of rules, the group of persons for whom the dramshops are responsible. The spoken or unspoken intent is that dramshops should not be required to insure the consumption of alcohol in general. Several cases have held that a direct sale is necessary. (Albertina v. Owens (1971), 3 Ill. App. 3d 703, 279 N.E.2d 70; McCoy v. Spalding (1963), 41 Ill. App. 2d 292,190 N.E.2d 483; Blackwell v. Fernandez (1945), 324 Ill. App. 597, 59 N.E.2d 342.) Under this rule, however, a dramshop operator will escape liability even when, for example, he knows that someone other than the purchaser will also consume the alcohol.

To avoid this result, another line of cases has imposed liability when the purchaser of the intoxicant shared it with the alleged intoxicated person (AIP) who caused the harm. Some cases require that the AIP be present at the sale (Anderson v. Dale (1967), 90 Ill. App. 2d 332, 232 N.E.2d 767; Rittmeyer v. Anderson (1964), 49 Ill. App. 2d 71,199 N.E.2d 463), but other decisions do not require the AIP’s presence. Thus, Tate found liability because the dramshop operator knew or had reason to know that beer purchased by several persons at different times would be shared with her husband, the AIP, who was drinking in a garage 30 to 40 feet from the tavern. Tate said that the AIP’s presence is relevant in determining knowledge but should not be a separate requirement.

Citing Peterson v. Jack Donelson Sales Co. (1972), 4 Ill. App. 3d 792, 281 N.E.2d 753, the plaintiffs argue that a seller of package liquor, such as Convenient, should expect that a purchaser may share his purchase with others; package-liquor stores therefore function as portable dramshops, for the purchase is generally taken elsewhere for consumption. In Peterson the plaintiff’s decedent attended a union picnic, became intoxicated from beer that was available there, and was killed in a car crash later that day. The appellate court reversed the grant of summary judgment for the defendant. The complaint alleged that the beer was sold to the members of the union and that the defendant knew or should have known that union members would be drinking it; the plaintiff’s decedent was a member. The defendant’s employees did not serve the beer to the picnickers; rather, they drove a truck or van to the site, opened several half-barrels, left the area, and returned at the end of the day to remove the truck and its contents. The court concluded that although the defendant had not dispensed the beer, “the defendant as a wholesaler for all practical purposes, provided a dram shop where the plaintiff’s decedent and others could become intoxicated.” (4 Ill. App. 3d 792,797,281 N.E.2d 753, 756.) The court viewed the truck, with its supply of ice, cups, and barrels, as a mobile dramshop sent by the defendant to the picnic grounds. We find Peterson inapplicable, for in this case the purchase was taken from the store by the purchaser; Convenient did not send out a truck.

We conclude that liability may be imposed when the dramshop operator knows or should know that the AIP will be a consumer of the intoxicant. This rule requires more than knowing merely that unspecified, absent persons will be drinking; the dramshop must have actual or constructive knowledge that a particular person will be drinking. An exception to this rule arises in cases such as Peterson, when the dramshop, by its method of distributing alcohol, in effect gives up the opportunity to refuse service to anyone.

Applying this rule to the facts here, we conclude that summary judgment was appropriate; although the trial court said that a direct sale was necessary, the documents on file fail to present a question of fact even under our broader rule.

According to the depositions of David and Daniel Grover, which accompanied the defendants’ motion for summary judgment, David Grover parked their car in front of the Convenient store and Daniel went in by himself to buy beer. As Daniel entered the store, David and another person left the car to use the restroom at a gas station across the street. Two girls remained in the car. Daniel returned to the car with two 12-pack cartons of beer and David and the other person returned shortly after that. The depositions go on to describe the events leading up to the accident later that day. These depositions and the complaints were the trial court’s only sources of information about the sale.

The plaintiffs’ allegations that Convenient knew or should have known that the purchaser, Daniel Grover, would share the beer with other persons are insufficient to raise a question of fact against the unrebutted statements in the depositions, for under the rule stated above, the dramshop must have more exact knowledge: not that the alcohol may be shared with an unseen and undesignated person but that it may be shared with the AIP. The pleadings and depositions failed to show that Convenient knew, actually or constructively, that Daniel Grover would share the beer with his brother David, the AIP.

Affirmed.

GREEN, P. J„ and WEBBER, J., concur.

       The Quaid and Welch complaints allege that Daniel bought the beer and that Convenient knew or should have known that he would share it with others; the Burk complaint alleges a sale to David. In their joint brief the plaintiffs treat all three complaints as based on a sale to Daniel. Summary judgment is proper under either set of facts.


author: JUSTICE MILLS

text:
      In re MARRIAGE OF ELIZABETH HOPKINS, Petitioner-Appellant, and HAROLD HOPKINS, Respondent-Appellee.
    Fourth District
    No. 17511
    Opinion filed May 12,1982.
    William M. Goldstein, of Gaston & Goldstein, of Urbana, for appellant.
    Burt Greaves, of Greaves & Lerner, of Champaign, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

We deal here with a unique and innovative allocation of a corporate debt incurred during marriage.

Petitioner and respondent were married on August 11,1962, and two children were born on May 9, 1965. In the late 1960’s and the 1970’s, petitioner assisted respondent in the operation of a gift shop and clothing store which were jointly owned by them. Both of these businesses were eventually sold, however. Petitioner has a certificate in interior decorating but has never been employed in that field. She does, however, have skills in retail merchandising, buying, and personnel management which she gained by working in the gift shop and clothing store which the parties owned.

After the businesses were sold, petitioner was employed as corporate secretary of respondent’s automobile businesses at an annual salary of approximately $19,000, but the salary was largely a vehicle for making payments on certain insurance policies. Petitioner had only nominal job duties as corporate secretary. At the time of the hearings in this case, petitioner was spending most of her time at home so that the children could be properly supervised, in deference to respondent’s wishes.

Respondent is presently the owner of two automobile dealerships. The first was acquired in 1973; the second in 1978. The first automobile business was acquired from respondent’s former father-in-law. Due to the generally depressed state of the automobile industry, both of these businesses are technically insolvent, and because of their precarious financial condition are virtually unsaleable. Respondent feels that these businesses will eventually be profitable, however.

The evidence reveals that at the time of the dissolution of their marriage, the net assets of the parties were valued at $256,595, based on the assumption that the value of the automobile dealerships is zero, as opposed to a negative net value. As a result of the allocation of the marital debts and assets, petitioner received property with a net value of $202,090, while the net amount of respondent’s property award was $54,505. The automobile dealerships were awarded to respondent, and he was ordered to assume. the bulk of the marital debts. Petitioner was ordered to hold the respondent harmless for a $30,000 loan which Tillie and Mae King (apparently relatives of petitioner) made to respondent. Throughout the trial of this case, this loan was repeatedly characterized by respondent as a business loan, but he later indicated that it was a “personal and family debt.” Following the initiation of petitioner’s divorce action, the Kings demanded payment of this note and eventually obtained a judgment against respondent thereon.

I. Plaintiff first contends that in ordering her to hold respondent harmless from liability for the amount of the $30,000 judgment which Tillie and Mae King recovered against respondent, the trial court erroneously construed the loan as a business, as opposed to a personal, debt. The short answer to this contention is that the nature of this debt is irrelevant in assessing the propriety of the property allocation made by the trial court.

The parties stipulated all of their property, including the automobile dealerships, was marital property. Under section 503(c) of the Illinois Marriage Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)) a trial court has a great amount of discretion in allocating marital property among the parties through a divorce proceeding. The power to make discretionary allocations of marital property obviously includes the power to allocate debts attached to that property. Although ordering a party who does not receive business property to assume responsibility for a business debt may indeed be unusual, respondent cites no cases which proscribe such an action, and we see no reason why a court should not be permitted to do so in an appropriate case.

Petitioner’s apprehensions as to the harm which might accrue to the interests of the judgment creditors as a result of petitioner being ordered to hold respondent harmless for the amount of the King loan are clearly unfounded. The loan was not formally assigned to petitioner; she was only ordered to hold respondent harmless for the amount thereof. The trial court’s order in no way impaired or affected the rights of the Kings vis-a-vis respondent. The Kings can still proceed against respondent for the amount of the judgment; the only difference is that now petitioner can be held in contempt of court if she does not pay the amount of the judgment to the Kings or does not reimburse respondent for any amount which he pays to the Kings on the judgment. Contrary to petitioner’s assertion, the court’s order in this regard will thus not create a third-party indemnification action by respondent against petitioner.

Neither of the two cases which petitioner cites in her discussion of the court’s treatment of the King debt are apposite or relevant (In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 409 N.E.2d 321; Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 376 N.E.2d 1382).

An examination of the trial court’s property allocation reveals that petitioner received well over three times the net amount of property allocated to respondent. An allocation of the $30,000 King debt to respondent would, in fact, raise a serious question as to the adequacy of respondent’s property award. Therefore, quite aside from the nature of the $30,000 King debt, we feel that the trial court clearly did not abuse its discretion in allocating this debt to petitioner.

II. Petitioner next contends that the trial court abused its discretion in refusing to reopen the case to hear additional evidence as to the status or nature of the King loan. In view of our conclusion as to the materiality and relevance of the status of this loan, it is apparent that a reopening of the case to hear additional evidence on this matter would have served no useful purpose. A motion pursuant to section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3) is addressed to the trial court’s sound discretion (Abbey Plumbing & Heating, Inc. v. Brown (1977), 47 Ill. App. 3d 719, 365 N.E.2d 115), and the trial court clearly did not abuse its discretion in denying petitioner’s motion as to this issue.

III. Petitioner finally complains that the trial court abused its discretion in refusing to order respondent to pay her attorney fees, which apparently totaled $6,675. A party seeking an award of attorney fees in a dissolution of marriage case must show financial inability to pay the fees and financial ability on the part of the other spouse to do so. (Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578,373 N.E.2d 576.) Here, the petitioner clearly did not demonstrate an inability to pay her attorney fees, which amount to less than 4% of her total property award. Thus, the trial court did not abuse its discretion in ordering the petitioner to pay her own attorney fees.

We conclude with an observation that the instant case presented the trial court with a difficult situation. Both parties had obviously been living beyond their means, and the respondent’s businesses were experiencing severe financial difficulties. Nevertheless, Judge Jensen did a commendable job of fashioning a property allocation which will afford petitioner and the parties’ children an adequate standard of living, and at the same time give respondent at least a fighting chance of making a success of his businesses. The memorandum opinion and orders which the trial court entered are, in fact, models of clarity which reflect the high degree of consideration and attention which the court devoted to the resolution of this complex dissolution of marriage case. We are loath to disturb the trial court’s able resolution of this matter.

Affirmed.

WEBBER and TRAPP, JJ., concur.


text:
    JOSEPH T. PISANO et al., Plaintiffs-Appellants, v. LOUIS GIORDANO, Acting Director, Department of Personnel, et al., Defendants-Appellees.—(AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES et al., Intervenors.)
    Fourth District
    No. 17526
    Opinion filed May 12,1982.

      Richard J. Coffee, II, of Illinois State Employees Association, of Springfield, for appellants.
    Tyrone C. Fahner, Attorney General, of Chicago, and Brown, Hay & Stephens, of Springfield (Kathryn A. Spalding, Assistant Attorney General, Harvey B. Stephens, and William F. Trapp, of counsel), for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

Can either the trial court or a reviewing court re-examine an administrative agency’s actions without a record before it?

No.

No court — trial or appellate — can function in a vacuum.

Administrative review presupposes a record of the proceedings before the agency.

Following a decision by the Director of the Illinois Department of Personnel — which resulted in reduced health care benefits to State employees, annuitants, and, where elected, qualified dependents — the plaintiffs brought suit for administrative review. Named as defendants in the suit were the Director, numerous other State officials (State defendants), and Health Care Service Corporation (HCSC).

Rather than filing an answer to plaintiffs’ complaint, the State defendants filed a motion to dismiss, alleging that the plaintiffs were not parties to the administrative proceedings and that their objections to the administrative action were waived for failure to present them to the agency. HCSC filed a separate motion to dismiss, alleging that it was improperly joined as a party defendant. As a result of the procedural posture in which defendants placed the case, no record of the proceedings before the administrative agency was filed with the trial court. Nor is such a record before this court. This fact notwithstanding, the trial judge allowed both motions to dismiss. Because his decision was made without reference to the record, we must reverse and remand.

The parties dispute the issue of whether plaintiffs have standing to seek administrative review simply by virtue of their status as aggrieved persons or whether it is necessary that they also have been parties to the administrative proceedings by which they were aggrieved. The trial judge ruled that plaintiffs must have been parties to the administrative proceedings in order to have standing to challenge them. With this we agree. The supreme court has “consistently held that the right to review [of] * * * administrative decisions is limited to parties of record before the administrative agency whose rights, duties or privileges were adversely affected by the decision.” Williams v. Department of Labor (1979), 76 Ill. 2d 72, 78, 389 N.E.2d 1177, 1179; see also Lake County Contractors Association v. Pollution Control Board (1973), 54 Ill. 2d 16, 294 N.E.2d 259; 222 East Chestnut Street Corp. v. Board of Appeals (1956), 10 Ill. 2d 132,139 N.E.2d 218; Winston v. Zoning Board of Appeals (1950), 407 Ill. 588, 95 N.E.2d 864.

While the statutory language involved in this case is not identical to that applied in any of the cited cases, the clear import of these cases is that in the absence of a clear manifestation of contrary legislative intent, the Administrative Review Act — which clearly extends standing only to parties of record — controls language in a substantive statute. No such intent is apparent from the substantive statute involved here, the State Employees Group Insurance Act. Ill. Rev. Stat. 1979, ch. 127, pars. 521 through 537.

Nor does North Federal Savings & Loan Association v. Becker (1962), 24 Ill. 2d 514,182 N.E.2d 155, on which plaintiffs rely, persuade us otherwise. That case turned on whether or not the plaintiff was “aggrieved” or “affected” within the meaning of sections 7 — 21 and 7 — 24 of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1959, ch. 32, pars. 861, 864). The issue of plaintiff’s status as a party in that case was never raised. However, that status was rather clearly established on the record, which showed that plaintiff had filed an objection to a proposed change in location of a savings and loan with the Director of Financial Institutions, had appeared at the hearing on the proposed change, and had presented five witnesses.

The issue remains whether the plaintiffs were in fact parties. This question is to be determined on the basis of the record of the administrative agency. (Appel v. Zoning Board of Appeals (1970), 120 Ill. App. 2d 401, 257 N.E.2d 9 (plaintiff is not required to plead and prove facts sufficient to establish standing, they need only be apparent from the record).) A judge sitting in an administrative review proceeding is expressly forbidden to go outside the record in rendering a decision. Ill. Rev. Stat. 1979, ch. 110, par. 274; see also Lamar v. Illinois Racing Board (1977), 55 Ill. App. 3d 640, 370 N.E.2d 1241.

Without the record before him and unable to go outside the record, the trial judge had nothing on which to base his decision. As it is the responsibility of the agency involved to furnish the record (Ill. Rev. Stat. 1979, ch. 110, par. 272), the decision dismissing the State defendants cannot stand.

Similar reasoning requires reversal of the decision dismissing HCSC— although the question presented in this instance is amenability to suit as a party defendant, rather than standing to sue as a plaintiff.

Section 14 of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 277) makes the Civil Practice Act applicable to proceedings under the Administrative Review Act. Section 24 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 24) provides that a person, which includes a corporation, may be made a party defendant “whom it is necessary to make a party for the complete determination or settlement of any question ” * e.” (See Continental Air Transport Co. v. Carpentier (1958), 19 Ill. App. 2d 340,152 N.E.2d 488, rev’d on other grounds (1959), 17 Ill. 2d 312,161 N.E.2d 99.) Again, it is impossible to make this determination without the record of the administrative proceedings.

The trial judge did not have the record before him. Therefore, his decision cannot stand.

Reversed and remanded.

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


text:
    ROBERT J. SONGER, Plaintiff and Counterdefendant-Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant and Counterplaintiff.—(COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellee.)
    Fifth District
    No. 81-448
    Opinion filed May 13, 1982.

      John R. Meyer, of Meyer & Meyer, of Flora, for appellant.
    James R. Moses, of Smith, McCollum, Riggle & Moses, of Flora, for appellee.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

Plaintiff, Robert J. Songer, appeals from an order of the circuit court of Clay County awarding him $3,500 for attorney fees, $101.62 for costs, and $1,000 as a penalty for the vexatious and unreasonable delay of defendant, Country Mutual Insurance Company, in paying its pro rata share of a fire loss incurred by plaintiff. Plaintiff contends that the amount awarded for attorney fees is unreasonably low and inadequate in light of the circumstances of the case and that the trial court erroneously considered certain factors in making its determination.

The instant case involved protracted litigation which commenced on June 19, 1975, between plaintiff and defendants, State Farm Fire and Casualty Company and Country Mutual Insurance Company. In our previous decision in this case, we summarized the procedural history as follows:

“After a fire destroyed his house and its contents, plaintiff, Robert J. Songer, brought this action in the Circuit Court of Clay County for a declaratory judgment to determine the rights and liabilities of defendant State Farm Fire and Casualty Company and defendant Country Mutual Insurance Company under their respective policies issued to the plaintiff. The trial court declared, among other things, that Country Mutual was responsible for a pro rata share of the loss, the amount to be determined in a pending companion suit. However, the trial court reserved the question of whether Country Mutual was liable for plaintiff’s attorney’s fees.
Country Mutual appealed. We dismissed the appeal without prejudice for lack of a final and appealable judgment. Country Mutual was granted leave to obtain a final judgment on the question of attorney’s fees.
On remand the trial court found that Country Mutual was vexatious and without reasonable cause in having refused to pay its pro rata share of the loss. The court further found that the matter of attorney’s fees was controlled by section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1975, ch. 73, par. 767) as it existed prior to the amendment effective October 1,1977, which removed the maximum fee recovery limitation of $1,000. Accordingly, the trial court ordered that the plaintiff recover $1,000 of his attorney’s fees from Country Mutual.” Songer v. State Farm Fire & Casualty Co. (1980), 91 Ill. App. 3d 248, 249-50, 414 N.E.2d 768, 769.

On the prior appeal, Country Mutual argued that the policy was cancelled by substitution prior to the loss and that its refusal to pay was not unreasonable and vexatious as to warrant any award of attorney fees. In finding that the trial court did not abuse its discretion in concluding that Country Mutual’s refusal to pay was vexatious and unreasonable, we noted that:

“It is apparent that the trial court concluded that the facts of this case were plainly outside the scope of any accepted definition of the doctrine of cancellation by substitution. We agree and note further the lack of any provision in the Country Mutual policy relieving it from liability in the event of other insurance and the indications in Country Mutual’s communications following the loss that it did not treat the policy as having been cancelled.” (91 Ill. App. 3d 248, 253, 414 N.E.2d 769, 772.)

We also found that the trial court erred in applying the prior version of section 155 of the Insurance Code and therefore remanded the cause for a determination of the amount of attorney fees to be awarded under the statute as amended.

On remand, plaintiff, with leave of court, filed an amended petition for attorney fees to include services rendered throughout the litigation, certain costs and expenses, and for assessment of a $5,000 penalty pursuant to section 155(b) of the Illinois Insurance Code. (Ill. Rev. Stat. 1979, ch. 73, par. 767(b).) On July 15, 1981, a hearing on the amended petition for attorney fees was held. John R. Meyer, plaintiff’s attorney, testified that he had practiced law in Illinois since 1948, that plaintiff hired him in 1974 in connection with the fire that destroyed his residence, and that he was experienced in matters pertinent to the instant case. Meyer further testified as to the usual and customary fee for the years in question and that he spent 194 hours working on behalf of the plaintiff over the last seven years. Meyer stated that his total fees for his services was $9,563.75.

James B. Wham, the attorney for State Farm, testified as to his knowledge of the case and the work performed by Meyer. Wham stated that in his opinion the fee of $9,563.75 was reasonable.

William Robin Todd, an attorney, testified that he had been present during some of the proceedings in the instant case, examined the file and appellate briefs, and had heard the testimony of Meyer as to the hours spent and fees charged. Todd was of the opinion that the $9,563.75 was a reasonable fee.

Following arguments of counsel, the trial court orally announced its decision:

“As the recent decision held, attorneys fees can’t be determined solely on the basis of hours spent times the billing rate. They have to use other elements of the ABA Code, among others the amount involved, fees customarily charged and so forth. In my opinion, a fee of $3,500.00 would be a reasonable attorney fee on the basis that this was purely between Mr. Meyer and Mr. Songer. I just don’t believe it would be a greater charge than that. So I will find that $3,500.00 would be a reasonable attorney fee.”

On July 29,1981, the trial court entered an order awarding plaintiff $3,500 in attorney fees, $101.62 for costs, and $1,000 as a penalty for vexatious and unreasonable delay. Plaintiff appeals from that part of the order awarding attorney fees.

As stated, plaintiff contends that the $3,500 awarded for attorney fees is unreasonably low and inadequate in light of the circumstances of the case. Supreme Court Rule 2 — 106 (79 Ill. 2d R. 2 — 106) provides that the following factors are to be considered as guides in determining the reasonableness of a fee:

“(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood that the acceptance of the particular employment would preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.”

Plaintiff initially argues that the trial court erred in considering “the amount involved and the results obtained” in determining a reasonable fee in that these are guidelines to be considered only when the attorney-client relationship exists and not when fees are sought from an opposing party for unreasonable and vexatious delay. Plaintiff asserts that this is an equitable provision designed to protect a client from being required to pay all or substantially all of a judgment to his lawyer. Plaintiff further argues that the primary factor to be considered in setting attorney fees is the time expended by the lawyer as shown by a detailed time record and cites a line of Illinois cases in support of this proposition. See Leader v. Cullerton (1976), 62 Ill. 2d 483, 343 N.E.2d 897; Slater v. Jacobs (1977), 56 Ill. App. 3d 636, 371 N.E.2d 1054; In re Estate of Hacket (1977), 51 Ill. App. 3d 474, 366 N.E.2d 1103.

While we recognize the importance of the time expended by the lawyer in determining a reasonable fee, we do not believe it was error to consider the additional factors as enumerated in Supreme Court Rule 2 — 106 (79 Ill. 2d R. 2 — 106). The Illinois Supreme Court in Leader, in noting the substantial consideration to be given to time expended, stated that “[t]his * * * does not mean that time expended is the sole criterion, nor will it assume the same degree of importance in every case.” (Leader v. Cullerton (1976), 62 Ill. 2d 483,488, 343 N.E.2d 897,900.) In the instant case the trial court noted that it considered the other elements of the ABA Code of Professional Responsibility. We note that Rule 2 — 106 is identical to the corresponding section of the Code. As to plaintiff’s contention that the “amount involved and the results obtained” is properly considered only for protection of the client within the attorney-client relationship, we find that it is merely one factor available to the court, to use in its discretion, in assessing attorney fees under the facts and circumstances of each individual case. We agree with plaintiff, however, that under the facts of this case, the trial court apparently gave improper weight to this factor, as it considered that the proper determination of the attorney fee “was purely between Mr. Meyer and Mr. Songer.”

Plaintiff asserts that had it not been for Country Mutual’s unreasonable and vexatious refusal to pay, the instant litigation would have been unnecessary and the claims in question would have been processed without delay. Therefore, plaintiff argues that attorney fees should be assessed for the full amount as prayed. Country Mutual contends that considering the factors enumerated in Rule 2 — 106 and the nature of the litigation, the attorney fees, as determined by the trial court, are reasonable. Country Mutual further argues that plaintiff’s present refusal to accept the fees as assessed is “but another divergent path taken to avoid submitting to a trial of his original lawsuit.”

We note at the outset that plaintiff, prior to bringing the instant action, filed a lawsuit against Country Mutual to recover on its policy issued to plaintiff. Shortly thereafter, plaintiff brought this action against State Farm to recover on its policy and State Farm impleaded Country Mutual as a third-party defendant. Plaintiff moved to consolidate the two lawsuits, but Country Mutual opposed the motion, apparently on the ground that it had made a jury demand in the first suit and the second suit was to be a bench trial, and the motion to consolidate was accordingly denied.

As to Country Mutual’s contention that this appeal is an attempt to avoid trial of the original lawsuit, we find this argument to be without any merit. Country Mutual moved for a continuance of the first lawsuit until the initial appeal in this case had been decided. We also note that partial summary judgment has been granted determining Country Mutual’s liability in the first lawsuit, based on the judgment order in this case, and therefore the only question remaining is the amount of the pro rata share of plaintiff’s loss to be paid by Country Mutual. Having already determined in our previous decision in this case that Country Mutual’s refusal to pay was vexatious and unreasonable, we cannot agree that plaintiff is attempting to avoid trial of the first suit or is otherwise at fault in bringing this appeal.

The allowance or disallowance of attorney fees under section 155 of the Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 767) is a matter resting in the judgment and discretion of the trial judge, taking into account the totality of the circumstances. (Deverman v. Country Mutual Insurance Co. (1977), 56 Ill. App. 3d 122, 371 N.E.2d 1147.) The amount assessed as a reasonable fee is also discretionary; however, a reviewing court may apply its own judgment in considering the question of the propriety of attorney fees. Presbyterian Distribution Service v. Chicago National Bank (1960), 28 Ill. App. 2d 147,171 N.E.2d 86.

The uncontroverted evidence is that plaintiff’s attorney, John R. Meyer, worked 194 hours over a seven-year period concerning matters related to the instant case. Meyer’s unusually precise billing records reveal in great detail the hours worked on specific dates and his testimony established the usual and customary fees for the years in question. Meyer further testified that the total fee for the work was $9,563.75. Wham and Todd, the two attorneys who testified at the hearing, supported Meyer’s testimony as to the usual and customary fees and were both of the opinion that the total fee was reasonable. Wham further stated that the fee charged was “less than what I would consider a reasonable fee.”

While we recognize that courts are not bound by the opinions of lawyers as to what constitutes reasonable attorney fees (Goldstein v. Handley (1945), 390 Ill. 118, 60 N.E.2d 851), in our judgment the hours worked and the fees charged for the years in question are reasonable considering the totality of the circumstances. We agree with plaintiff that had it not been for Country Mutual’s refusal to pay that this matter could have been settled without resort to the extended litigation that has resulted. It is apparent that State Farm realized its obligation and agreed to pay its pro rata share of the loss. It would, therefore, be improper to base the award of attorney fees on the percentage of loss paid or to be paid under the respective policies as nothing State Farm did caused or contributed to this protracted litigation. In our previous decision, we found Country Mutual’s defense to be unfounded and its refusal to be vexatious and unreasonable as to warrant the imposition of attorney fees. We further note that, following this appeal, plaintiff will have to engage in another trial to determine the amount owed to him by Country Mutual. In light of the foregoing, we find the trial court’s determination that $3,500 is a reasonable fee to be against the manifest weight of the evidence and therefore assess attorney fees for the full amount as prayed.

Plaintiff’s attorney has filed a petition in this court for allowance of additional attorney fees for prosecuting this appeal. In his petition he states that 41 hours were expended in the preparation of the matters necessary to effect the appeal and in the preparation of his brief. He estimates that an additional 8 hours would be expended in preparation for and in oral argument. For the reasons already stated, we believe counsel is entitled to recover a reasonable attorney fee for the prosecution of this appeal. We believe this amount should be determined after hearing by the trial court applying the factors of Supreme Court Rule 2 — 106.

The judgment of the Circuit Court of Clay County is reversed and the cause is remanded to that court with directions to enter judgment for plaintiff in the amount of $9,563.75 and such additional amount as the court shall determine to be a reasonable attorney fee incurred in the prosecution of this appeal.

Reversed and remanded with directions.

JONES and WELCH, JJ., concur.


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE M. REISINGER, Defendant-Appellant.
    Fifth District
    No. 80-216
    Opinion filed May 10,1982.

      John H. Reid and Jean Marie Reyes, both of State Appellate Defender’s Office, of Mt. Vernon, and Rebecca Ann Whittington, research assistant, for appellant.
    Martin N. Ashley and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of Mt. Vernon, for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

The defendant, George M. Reisinger, was charged by an information filed October 13,1977, with the offenses of burglary and theft of property with a value in excess of $150. A jury found the defendant guilty of the theft count and he was sentenced to an indeterminate term of imprisonment of one to five years to run consecutively to sentences previously imposed in the State of Ohio for sexual battery and escape. From his conviction and sentence the defendant has appealed.

The defendant was brought to Illinois from Ohio for trial pursuant to section 3 — 8—9 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1003 — 8—9). At his first appearance on October 5, 1979, the defendant informed the trial court that he had retained counsel to represent him. A short time later, defendant’s retained counsel filed a motion to withdraw, alleging, inter alia, that defendant desired to either appear pro se or with the assistance of other counsel. The motion to withdraw was granted and the trial court appointed the public defender, Barbara Adams, as defendant’s attorney.

On October 29, 1979, a preliminary hearing was held wherein defendant received a copy of the information and was admonished as to the possible penalties if convicted of the charged offenses. Ms. Adams represented the defendant at various other pretrial hearings in which defendant took an active part by presenting legal arguments of his own. On February 27, 1980, the defendant indicated that he was dissatisfied with his present counsel. The trial court admonished defendant of his right to counsel and informed him that he could have another attorney appointed to represent him if he wished. The defendant elected to dismiss Ms. Adams and the trial court appointed another public defender, John Coady, to represent him.

On April 3, 1980, Mr. Coady moved for leave for the defendant to argue a number of pro se motions which the defendant had filed. Defense counsel’s request was denied, whereupon the defendant dismissed Mr. Coady. Thereafter, the court requested Mr. Coady to remain as standby counsel and then allowed the defendant to argue the motions himself.

After Mr. Coady’s dismissal, defendant continued to appear pro se and filed additional pleadings for the trial court’s consideration. On April 7,1980, he filed a habeas corpus petition. On April 10,1980, the day set for his trial, the trial court set the defendant’s petition for a hearing at the conclusion of the trial. The defendant thereupon refused to proceed to trial and, at one point, had to be forcibly brought back into the courtroom by the sheriff. The following colloquy occurred:

“THE DEFENDANT: I wish to make a statement to the Court and to the press.”

Whereupon, the following conference was held at the bench between the court and counsel out of the hearing of the jury:

“MR. COADY: What he wants to do, he tells me, Judge, is to go to the jail. He doesn’t want to be present at the trial. And he said that he wants to do so after making a statement to the Court and he has prepared a written statement that he wants to give to the press.
As I understand it, I think he does have a right to waive his presence at trial. He can’t be forced to remain in the courtroom.
MR. COADY: Now he did say these 3 things: He says he wants to hand a written statement to the Court, make a statement to the Court. I don’t think necessarily in front of the jury. And he wants to go to jail.”

Thereafter, the following proceedings were held in open court in the presence and hearing of the jury:

“THE DEFENDANT: In the presence of the jury.
MR. COADY: George, do you want to waive your presence or are you just saying, ‘Take me to jail’?
THE DEFENDANT: I’m just saying take me to jail.
THE COURT: You understand you’ve got a right to be here for your trial and you’ve also got a right to remain away from it if you so desire. You understand that?
THE DEFENDANT: I understand that.
THE COURT: All right.
MR. COADY: Judge, just to clarify the record. I think he said he wanted to waive his presence. He says now he does not wish to do that, he just wants to go to jail. And I think your statements have clarified that.
THE COURT: If you want to waive your right to be here you may do so. If you voluntarily waive your right to be present for your trial, you may do so. But you’re not going to put any qualifications on it. You can be here or you can be in jail. But if you don’t waive your right to be here in open court in plain English, then you’re going to remain here.
THE DEFENDANT: I think my statement will show my reason as to wanting to be removed to the county jail.
THE COURT: Proceed with the selection of the jury here. You just remain here unless you voluntarily waive your right to be present for your trial.
THE DEFENDANT: I voluntarily waive my right to be present for the trial.
THE COURT: All right, now make your statement.”

The defendant then argued that the trial court’s failure to hear argument on his April 7 habeas corpus petition constituted an unlawful suspension of the writ and, therefore, he would refuse to stand trial. The trial court then ordered that defendant be taken back to jail as he requested. Just prior to leaving the courtroom the defendant stated, 0 ° the only thing I wish to say before leaving the courtroom is to this man sitting here. He is not my legal, lawful attorney. There is a case law citing [sic] that he’s not my attorney and I refuse to have him defend me in any manner in this courtroom.”

The defendant’s standby counsel requested that the trial court clarify his responsibilities under the circumstances. The trial court replied, “I don’t believe you have any function here at all, Mr. Coady. ° ° ” [A]fter he dismissed you — the only purpose you served were [sic] to answer questions about his legal rights. Therefore, you may be dismissed.”

The matter proceeded to trial in the absence of the defendant and his standby counsel.

At trial, the evidence established that on October 6,1977, the mobile home of Dennis Cruthis and his wife was broken into and various specified items of personal property taken. Arthur Heidke, a Madison County deputy sheriff, testified that he and other officers searched defendant’s house pursuant to a search warrant and found the Cruthis property. Charles L. Boerckel testified that, while he was staying at defendant’s house during the first week of October 1977, he observed the defendant and others unloading a color television and a stereo set from a car. Mr. Boerckel identified the property he observed as being part of the personalty taken from the home of Mr. and Mrs. Cruthis. The jury returned a verdict of guilty for the offense of theft over $150 but could not reach a verdict on the burglary charge.

On May 12, 1980, the trial court entered defendant’s sentence in the following manner:

“Very well, Mr. Reisinger, it’s the duty of the Court at this time, having due regard for the character of the offender, the nature and circumstance of the offense and public interest, all those matters have been considered. And I do find that a sentence of imprisonment is the most appropriate disposition, any factors in aggravation being that you have a history of prior criminal activity. And if crimes likes yours are not punished, others might be — think it’s a good idea to commit the same crime.
So I’m not going to give you the extended term. I’ll reject that argument. However, in my opinion as to your best interest as to a consecutive sentence, I would give you the 1 to 5 under the old law. In other words, you would be sentenced to the Department of Corrections for imprisonment in the penitentiary for not less than 1 year nor more than 5 years. And that sentence is to run consecutive to your imprisonment in the State of Ohio.
The reason being that you do have a history of criminal offenses. I feel that this crime in Illinois should be punished. If I gave you a concurrent sentence to that in Ohio there would be no punishment for this crime.”

The defendant first contends that his voluntary absence from trial cannot be construed as an effective waiver of his right to be present. He argues that the record fails to establish “an intentional relinquishment or abandonment of a known right or privilege” (Johnson v. Zerbst (1938), 304 U.S. 458,464, 82 L. Ed. 1461,1466, 58 S. Ct. 1019,1023) since the trial court failed to admonish the defendant as to the consequences of his decision. Virtually the same contention was rejected by the United States Supreme Court in Taylor v. United States (1973), 414 U.S. 17,38 L. Ed. 2d 174,94 S. Ct. 194, and we find this determination dispositive of this issue. It is undisputed that the defendant voluntarily elected to absent himself from the courtroom after the trial commenced. Under such circumstances it has uniformly been held that the trial court is free to proceed with the trial. Taylor v. United States; People v. Davis (1968), 39 Ill. 2d 325, 235 N.E.2d 634.

The defendant, relying on Davis and section 115 — 4.1(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4.1(a)), next argues that there is an absolute prohibition against trials in absentia when the defendant is not represented by counsel. We disagree. Neither Davis nor section 115 — 4.1(a) is applicable to the circumstances of this case.

In Davis, the defendant was not in custody and failed to appear, and the court held that it was error for the trial court to proceed to trial on the presumption that the defendant had voluntarily waived his presence and his right to counsel. In the case at bar, the defendant was personally present in open court represented by counsel and intentionally and unequivocally waived his right to be present and expressly rejected representation by counsel.

Further, section 115 — 4.1(a) has no application to the instant case. This provision by its terms applies only in two situations: (1) where, as in the Davis case, the defendant “fails to appear for trial”; and (2) where the defendant has “forfeited his bail bond or escaped from custody” after the trial has commenced. (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4.1(a).) Neither of the circumstances contemplated by the statute is present in the case at bar, and it is, therefore, not controlling. Additionally, we note that to construe section 115 — 4.1(a) to mandate that a defendant be represented by counsel when tried in absentia regardless of the defendant’s wishes would infringe on the defendant’s constitutional right not to have counsel forced upon him. See Faretta v. California (1975), 422 U.S. 806,45 L. Ed. 2d 562, 95 S. Ct. 2525.

The defendant had retained counsel and two appointed public defenders represented him in the instant case before he elected to proceed pro se. He was obviously aware of his right to counsel and right to represent himself. He exhibited a fair amount of legal sophistication and used every opportunity to enforce his rights. When it became apparent to the defendant that his trial would commence, he demanded both his own absence and the dismissal of his standby counsel. The record establishes that the defendant deliberately and knowingly exploited his right to counsel (see People v. Weston (1970), 9 Cal. App. 3d 330, 334-35, 87 Cal. Rptr. 922, 924-25, discussing the ploy of “Waive the Lawyer”) and consciously sought delay. As the Illinois Supreme Court recently observed the right of representation “may not be employed as a weapon to indefinitely thwart the administration of justice or to otherwise embarrass the effective prosecution of crime.” (People v. Myles (1981), 86 Ill. App. 3d 260, 268, 427 N.E.2d 59, 62-63.) Both the right to counsel and the right to self-representation are unquestionably valuable rights and should be scrupulously protected. However, the record in the case at bar indicates a knowing and intelligent waiver of both these rights.

The defendant additionally argues that since he was not expressly admonished pursuant to Supreme Court Rule 401(a) (73 Ill. 2d R. 401(a)), he could not make a knowing and voluntary waiver of counsel. We find our decision in People v. Black (1979), 68 Ill. App. 3d 309,385 N.E.2d 899, dispositive of this contention. In Black, the defendant elected to proceed pro se with the public defender as standby counsel. At trial, the defendant was permitted to make a statement in front of the jury in which he alleged, inter alia, that he was denied his constitutional rights and, therefore, would not participate in his trial. The defendant presented no defense. This court rejected the defendant’s claim that he did not intelligently waive his right to counsel and found that although defendant was not admonished pursuant to Supreme Court Rule 401(a), the requirements of that rule were substantially complied with because the court went out of its way to afford defendant counsel. As in Black, the present defendant is an experienced criminal litigant, and the record as a whole demonstrates that he was aware of the information contained in Rule 401(a). Hence, we find no error in the trial court’s failure to strictly comply with this rule.

The defendant, citing section 5 — 8—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(b)), suggests that the record fails to support a conclusion that the trial court believed that a consecutive sentence was required to protect the public from further criminal conduct. (People v. Zadel (1979), 69 Ill. App. 3d 681,387 N.E.2d 1092.) The trial court expressly indicated that it considered the defendant’s prior criminality, the nature and circumstances of the offense and the public interest when it sentenced defendant. In light of these considerations, the trial court concluded that punishment for his Illinois offense was warranted and, therefore, imposed a consecutive sentence as the only means of punishing defendant for the Illinois offense because a concurrent sentence may have resulted in defendant’s release without imprisonment for the Illinois offense. The purpose of section 5 — 8—4(b) is to allow the reviewing court to determine the reasons for the imposition of a consecutive sentence. (People v. Green (1980), 83 Ill. App. 3d 982, 404 N.E.2d 930.) We find this purpose satisfied in the instant case and that the trial court adequately specified its reasons for imposing a consecutive sentence. We reject the defendant’s suggestion that the trial court must make a ritualistic statement that a consecutive sentence is required to protect the public and we find no abuse of discretion. See People v. Cox (1980), 82 Ill. 2d 268, 280-81, 412 N.E.2d 541, 548.

The defendant’s reliance on People v. Zadel is misplaced. In that case, the out-of-State sentence to which the Illinois sentence was made consecutive was a life sentence under which the defendant was released only when the New Jersey authorities determined that he was rehabilitated. The court found that it was error for the trial court to impose an Illinois sentence which would require the defendant to serve an additional term after the New Jersey authorities had found him to be rehabilitated. The reasoning employed in Zadel is not applicable in the case at bar.

The defendant further maintains that his consecutive sentence is invalid since it exceeds the aggregate maximum permitted under section 5 — 8—4(c)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(c)(1)). The State contends that the defendant’s sentence was consecutive to sentences imposed in the State of Ohio and, therefore, section 5 — 8—4(c)(1) does not apply. (See People v. Presley (1979), 67 Ill. App. 3d 894,385 N.E.2d 181; People v. Dye (1977), 69 Ill. 2d 298, 371 N.E.2d 630.) We are persuaded that the State’s construction of this section is correct. Both the decided cases and the plain language of the statute suggest that section 5 — 8—4(c)(1) applies only to indeterminate sentences imposed under Illinois law.

Defendant argues in the alternative that if we accept the State’s construction of section 5 — 8—4(c)(1), then the statute is unconstitutional because it denies defendant equal protection of the law. The defendant has not demonstrated that he is a member of a suspect class nor has he shown that any fundamental right is involved and we reject defendant’s assertion that strict scrutiny of the statute is required. (See People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88, 368 N.E.2d 903.) The question then is whether there is a rational basis for the legislature to draft section 5 — 8—4(c)(1) to exclude out-of-State sentences. We conclude that there is. By excluding out-of-State sentences, the legislature avoids serious difficulties in administering the sentencing act in the courts (see People v. Dye) and further avoids the possibility of arbitrary variations in sentences which might arise as a result of differences in sentencing schemes adopted by other States. We find that the challenged section is rationally designed to further a legitimate State purpose and is not violative of equal protection.

For the reasons stated, the judgment of the circuit court of Montgomery County is affirmed.

Affirmed.

EARNS, P. J., and HARRISON, J., concur.