author: PRESIDING JUSTICE WEBBER

text:
    JUDITH A. HOUSER et al., Plaintiffs, v. FLOYD E. WITT, Defendant and Third-Party Plaintiff-Appellant and Cross-Appellee.—(Dennis M. Houser, Third-Party Defendant-Appellee and Cross-Appellant.)
    Fourth District
    No. 4—82—0258
    Opinion filed December 13, 1982.

      John F. Bramfeld, of Phebus, Tummelson, Bryan & Knox, of Urbana, for appellant.
    Craig J. Causeman, of Thomas, Hamer & Haughey, of Champaign, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

This appeal presents a question not heretofore answered by the reviewing courts concerning the right to contribution among tortfeasors under section 2 of “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1979, ch. 70, par. 302) (Contribution Act). By reason of the procedural mechanics below a brief explanation is necessary for an understanding of the alignment of the parties in this court.

On October 7, 1978, a collision occurred, on a roadway in Ford County between a van driven by Dennis Houser (Dennis) and a tractor driven by Floyd Witt (Witt). Judith Houser, the wife of Dennis (Judith), was a passenger in the van. It appeared that both vehicles were proceeding in the same direction on the roadway and as the van was about to pass the tractor on the left, Witt turned the tractor to the left in order to enter a crossroad and the collision occurred. Both vehicles suffered damage and Judith and Dennis suffered personal injuries. Judith’s injuries appeared more severe than those of Dennis.

Judith and Dennis brought suit against Witt for their injuries in September 1980. The matter proceeded through the usual discovery process and was allotted for jury trial several times during the late autumn and early winter of 1981-82. During this period the personal injury claims of Dennis and Judith were settled and they signed a release which recited payment of $42,500; Dennis’ claim for property damage to his van was specifically exempted in the release. Dennis voluntarily dismissed his suit for personal injuries and thereupon Witt amended his answer to allege comparative negligence and with the amended answer he filed a counterclaim for contribution against Dennis. His allegation of comparative negligence was based upon an inputation of negligence from Dennis to Judith.

Dennis filed two motions to dismiss the counterclaim. In substance these alleged interspousal immunity as provided in section 1 of “An Act to revise the law in relation to husband and wife” (Ill. Rev. Stat. 1979, ch. 40, par. 1001). The trial court denied both motions, relying upon Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 430 N.E.2d 236. The cause eventually proceeded to trial on Witt’s complaint based upon comparative negligence and contribution. Witt was permitted to amend to allege his property damage to the tractor and the amounts of property damage to the van and the tractor were stipulated by the parties.

At the conclusion of Witt’s evidence (he being counterplaintiff) the trial court directed a verdict in favor of Dennis on the contribution claim. The basis for the court’s ruling was that there was no apportionment in the release of the respective damages for personal injuries, but rather the release was joint as to Dennis and Judith. The comparative negligence issue was the sole matter submitted to the jury, which returned a verdict finding Dennis 60% negligent and Witt 40%.

Witt appeals the directed verdict ruling and Dennis cross-appeals the denial of his motions to dismiss. However, no argument has been presented in the briefs before this court in support of the cross-appeal and therefore the matter of interspousal immunity and the application of Wirth to the facts in this case has been waived under Supreme Court Rule 341(e)(7) (87 Ill. 2d R. 341(e)(7)). As to the contribution claim, we affirm.

Section 2(b) of the Contribution Act (Ill. Rev. Stat. 1979, ch. 70, par. 302(b)) provides that a right of contribution exists in favor of a tortfeasor who has paid more than his pro rata share of the common liability. The basis of the trial court’s directed verdict was that Witt could not prove his damages. The settlement agreement between Witt, Dennis and Judith did not allocate the amount of the settlement attributable to Judith’s claim. Consequently, since Witt could not establish the amount he paid in settlement of Judith’s claim, there was no way to determine the amount he paid on Judith’s claim in excess of his pro rata share. If Dennis were partly at fault for Judith’s injuries (and the jury found him 60% negligent), then Witt has paid more than his pro rata share since presumably he has paid the full amount of Judith’s claim as part of the settlement. Nevertheless, there was no evidence of the amount of Judith’s claim.

In order for a party to be entitled to contribution, he must allege and the evidence must show the amount he has paid in excess of his just proportion of the joint indebtedness. (See Cunningham v. Lawrence (1959), 16 Ill. 2d 201, 157 N.E.2d 50; Schaefer v. Dipple (1928), 250 Ill. App. 184.) In Cunningham, the administrator of the estate of Pauline Lawrence sought a decree finding the administrator to be the owner of certain property, an accounting of rents from the defendant (Pauline’s ex-husband), and an injunction restraining the defendant from interfering with the property. The defendant filed a counterclaim seeking, inter alia, contribution for one-half the obligation on a note for $15,000 on which defendant and Pauline were liable.

The trial court dismissed the defendant’s complaint and the supreme court affirmed the dismissal. The supreme court stated:

“Defendant’s claim for contribution equal to one half of the amount due under the note and mortgage jointly executed by defendant and his former wife also fails for many reasons, chief of which is that there is no allegation that he has paid more than his just proportion of the joint indebtedness nor what the excess, if any, might be.” 16 Ill. 2d 201, 208, 157 N.E.2d 50, 54.

In Sehaefer, the plaintiff brought a suit in assumpsit against the defendant for contribution. The plaintiff and defendant purchased a farm in Indiana as tenants in common. Plaintiff and defendant paid for the land with cash obtained and notes secured by the execution of first and second mortgages on the farm and on land owned individually by the parties. Because of a default in payment of interest on the Indiana farm mortgages, foreclosure proceedings were instituted by the parent company that sold the farm. A decree for foreclosure was entered and the farm was sold. The sale failed to realize the amount of the entire debt, and a personal deficiency judgment of $10,025.20 was entered against the plaintiff. Subsequently, a settlement was entered into between plaintiff, defendant, and the parent company.

Plaintiff’s complaint for contribution alleged that he paid $5,012.10 more than defendant in satisfaction of their joint indebtedness. The trial court awarded the plaintiff the amount he sought plus interest. The appellate court affirmed the judgment of the trial court. The court found that in the settlement agreement, plaintiff and defendant contributed the same things: (1) their interests in the Indiana farm; (2) their interest in certain fire insurance policies; and (3) their promise not to go into voluntary bankruptcy for a certain period of time. However, in addition to these contributions, plaintiff contributed his interest in land he owned individually. The appellate court determined that the common contributions had no or negligible money value and that the deficiency was settled wholly out of the value of plaintiff’s interest in the land he contributed to the settlement. Accordingly, the court found that plaintiff was entitled to contribution from defendant for one-half the amount of the deficiency.

Although neither Cunningham nor Schaefer involved joint tort feasors, they constitute extremely persuasive analogy. There is nothing in the Contribution Act, nor in subsequent case law, to negate the proposition that one seeking contribution must be able to establish the amount to which he is entitled. The Contribution Act is novel in that it is made applicable to joint tort feasors, but as to principles of contribution generally, it is a codification of existing common law.

Witt argues that the release provides “very good evidence” of the amount paid to Judith, but he does not explain how this amount may be deduced. It is evident from the record that Judith’s immediate injuries were much more severe than Dennis’, but this is no indication per se that Dennis’ injuries were negligible. The release provides that it covers not only existing injuries, but also “any and all known and unknown, foreseen and unforeseen injuries” for both Dennis and Judith. It is clear that Dennis did suffer some injury in the accident and it is possible that the sequelae are not yet manifest. Furthermore, Judith’s more serious injuries could lead to her future incapacity (she had some fractured vertebrae) and this in turn could give rise to a loss of consortium. In short, the open-end, blanket, joint release gives no indication as to how the amount paid for the release relates to any present or future damage to either party. In this case lack of apportionment may work a hardship on Witt, but it is one which he could have avoided by a properly drawn release.

Witt also argues that the release is ambiguous and that the jury should have been allowed to resolve the ambiguity. He maintains that the lack of apportionment gives rise to the ambiguity and that extrinsic evidence should then be permitted to come into the record. Such reasoning is purely circular. The release is plain on its face and no ambiguity exists.

The order of the circuit court of Ford County allowing the motion for directed verdict is affirmed.

Affirmed.

MILLS and TRAPP, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    M. ALAN SNEDDEN, d/b/a Management Recruiters of Bloomington, Plaintiff-Appellant, v. GENERAL RADIATOR DIVISION OF CHROMALLOY AMERICAN CORPORATION, Defendant-Appellee.
    Fourth District
    No. 4—82—0310
    Opinion filed December 28, 1982.
    Costigan & Wollrab, of Bloomington, for appellant.
    Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (James T. Foley, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On July 16, 1981, plaintiff, M. Alan Snedden, d/b/a Management Recruiters of Bloomington, filed suit in the circuit court of McLean County seeking to recover money damages from defendant, General Radiator Division of Chromalloy American Corporation, under a contract for employee recruitment services. After a bench trial, the court entered judgment for the defendant on April 22, 1982. On appeal plaintiff asserts the evidence entitled him to judgment as a matter of law.

Most of the evidence was not in dispute. To the extent a dispute existed, we must view the evidence most favorably to the defendant in whose favor the trial court found. Plaintiff operated an employment agency. In late August of 1980 defendant had vacancies in several positions including that of tool room supervisor and its agent contracted plaintiff with reference to plaintiff’s furnishing applicants for the jobs. Interviews were set for September 10, 1980, and the names of several applicants were sent by plaintiff to defendant. On September 8, 1980, Angela Painter, plaintiff’s employee, contacted Dale Bonnema, to see if he wanted to apply for the tool room supervisor position. According to Bonnema, whose testimony on the subject was most favorable to defendant, he told Painter he would come from his home in Cumberland County to Bloomington for an interview as a courtesy to her although he had already accepted other employment in Iowa.

On September 10, 1980, Don Odorizzi, a manager for defendant, interviewed five persons sent by plaintiff. On that date he received a written document which set forth the conditions upon which plaintiff was to be entitled to a commission. The names of Bonnema and Mike Rebmon had been added to the list of interviewees just before the interviews although Odorizzi had received no resumes concerning them. The evidence was in sharp dispute as to the nature and extent of the interview. According to both Odorizzi and Bonnema, it lasted only about 10 minutes and Odorizzi did not offer Bonnema a job because Bonnema already had a job and Odorizzi had no authority to make an offer. After the interview, Bonnema proceeded to Iowa where he began employment with General Thermo, Inc. Defendant did hire Rebmon shortly after their interview with him on that day.

After Bonnema had worked for General Thermo, Inc., for a few months, he apparently became interested in working for defendant. In late January of 1981, a supervisory employee of General Thermo advised Jeannette Jones, who was in charge of recruiting for defendant, that Bonnema might be available for employment and subsequently sent Bonnema’s resume to Jones. Ms. Jones had not been involved with defendant’s contact with Bonnema the previous September. On February 24, 1981, Bonnema and Odorizzi had breakfast together, after which Bonnema was interviewed. He was subsequently hired and started work on March 9, 1981, at a salary of $23,600 per year. No direct evidence was presented that before Bonnema was hired by defendant, anyone employed by defendant remembered that Bonnema had been sent to defendant by plaintiff in September of 1980 and interviewed at that time.

Plaintiff and Richard L. Ogden, the operator of another Bloomington employment agency, both testified to a long standing custom within their business that an employer will pay a fee to a recruiter for any employee who is hired by the employer within one year of being referred to the employer by the recruiter. Ogden stated that for a fee to have been earned by an agency, four criteria must be met: (1) the agency must have discussed the applicant with the employer; (2) the employer has agreed to interview the applicant; (3) the applicant has agreed to interview with the employer; and (4) the agency or the employer must have set the arrangements in motion for the interview. When asked whether the person interviewed would have to be an “applicant” for the job, Ogden responded, “No. It can be applicant, candidate, whichever words you like to use.”

No witness directly refuted the existence of the foregoing custom. Ms. Jones stated she had been dealing with personnel agencies since 1978 although only about 10% of her hiring had been accomplished through recruiters. She testified she was unaware of the custom.

No written agreement had been entered into between the parties here. At the time of the interviews on September 10, 1980, plaintiff had sent to defendant a written statement which stated in part that plaintiff would be entitled to a commission if defendant employed a candidate who was referred to defendant through plaintiff’s efforts. Plaintiff maintains that the custom and usage in the trade as testified to by plaintiff and Ogden should be incorporated in the tacit agreement of the parties because the parties should be conclusively presumed to have contracted with the custom in mind.

The trial judge made the following findings:

“1. That there is a dispute iñ re whether Defendant requested or received any information or agreed to interview Dale Bonnema prior to September 10,1980.
2. Plaintiff has established that there is a custom within the trade that any person tendered to a prospective employer who is hired within one year by that employer thereby entitles a recruiter to a fee.
3. A usage or custom to be binding must be so uniform, long established and generally acquiesced in and so well known as to induce the belief that the parties contracted with reference to it ***. See, Clark v. General Foods Corporation, 81 Ill. App. 3d 74. However, to have such a custom to become a term of a contract when one party is not engaged in such trade, the party seeking to have such custom become a term of the contract must prove that the party to be charged knew of the custom. Such knowledge may be inferred from the facts and circumstances in the case. In Clark v. General Foods Corporation, 81 Ill. App. 3d 74, the Defendant hired almost all its management personnel through ’recruitments’ agencies and that certainly is not the facts in the case at bar.
5. Plaintiff has failed to prove his case by a preponderance of the evidence.” (The findings contained no paragraph 4.)

We do not consider the uncertainty as to whether defendant requested or received any information or agreed to interview Bonnema prior to September 10, 1980, to be a basis for the judgment for the defendant. Defendant requested applicants and Bonnema was tendered by plaintiff, defendant apparently agreed to interview him, and an interview, perfunctory as it may have been, actually took place. We interpret the criteria testified to by Ogden not to require that the preliminary matters described occur on a day prior to the interview. It is notable that under his criteria, responsibility for a fee could attach although no interview actually took place.

Of much greater concern is the trial court’s determination in paragraph 3 that defendant’s agents were not sufficiently engaged in the “trade” to be charged with knowledge of the custom.

Plaintiff places major reliance upon the case of Clark v. General Foods Corp. (1980), 81 Ill. App. 3d 74, 400 N.E.2d 1027. There the plaintiff employment agency sent the defendant employer the prospective employee’s resume, absent his name, in response to an advertisement in the spring of 1976. Defendant thereafter requested the individual’s name and arranged for an interview. Before the interview was held in June, the position was filled. Defendant’s employees testified that they then disposed of the resume. In August, the same position opened up again and a different recruiter responded to defendant’s ad with the resume of the same prospective employee. He was hired and plaintiff demanded and was refused a commission. The defendant’s personnel manager’s testimony indicated it had frequent contacts with employment agencies and most of their hiring was done in that manner. There, as here, evidence was presented of the custom of a fee being due if the applicant was hired within one year of the referral by the agency to the employer. There, as here, the personnel manager of the defendant denied knowledge of the custom.

The Clark court quoted a long passage from Kelly v. Carroll (1921), 223 Ill. App. 309, 315-16, a portion of which stated:

“When the custom of a particular trade, business or profession is involved, its existence cannot be regarded as having entered into the contracts of others not engaged in such trade, business or profession unless such persons have had actual knowledge of the custom or are shown to have been previously engaged in transactions where the custom has been recognized. The rule that a usage or custom affects contracts, generally rests upon the theory that the parties in making the contract had such custom in their minds and stipulated with reference to it, thereby making it a part of their contract. When existence of the custom has been proved, it has the force of law within the sphere where established and enters into the contracts of those within that sphere who have knowledge of its existence. A presumption of such knowledge may be shown by facts or circumstances.”

Defendant points out that defendant’s personnel manager had made less use of employment agencies than had the personnel managers in Clark. It is also apparent that there the findings of the trier of fact were in favor of the plaintiff while here they were in favor of the defendant. Nevertheless, the evidence showed defendant to have hired 7 or 8 salaried employees through recruiting agencies since 1978. Thus, their use of such an agency was not an isolated incident. Moreover, the custom relied upon by plaintiff is not an obscure or unlikely one. Any sophisticated business entity hiring through a recruiting agency would be expected to realize that some rule containing a time frame would be necessary to determine whether a fee is due because there are times when a recruiter brings a prospective employer and employee together but no hiring occurs until some later date.

We conclude that under the circumstances here, defendants should be held as a matter of law to constructive knowledge of the custom testified to here. See Sterling-Midland Coal Co. v. Great Lakes Coal & Coke Co. (1929), 334 Ill. 281, 290, 165 N.E. 793, 796; Fifteenth Avenue Christian Church v. Moline Heating & Construction Co. (1970), 131 Ill. App. 2d 766, 265 N.E.2d 405.

Defendant maintains the trial court could have found that no contract of any kind was entered into between the parties concerning the Bonnema interview. However, the evidence was undisputed that defendant requested applicants for various positions from plaintiff. Plaintiff sent defendant information in regard to fees. Defendant proceeded to interview applicants. By this conduct, defendant impliedly agreed to pay plaintiff at the stated rate for any applicant it hired. Plaintiff tendered Bonnema for an interview and a perfunctory interview took place. No showing was made that Bonnema would not have accepted employment at the time had a sufficiently attractive offer been made. Under these circumstances, the possible employment of Bonnema became a matter covered by the contract between the parties.

Determination of the proper legal principles to apply to the facts of this case is not easy. Defendant’s agents were apparently unaware that Bonnema had previously been sent to them by plaintiff. However, plaintiff did bring the parties together and an employment relationship developed within a few months. We conclude he is entitled to the fee set forth in the documents sent to defendant. Upon that basis, plaintiff is entitled to a fee of $5,664.

Accordingly, the judgment for defendant is reversed and the cause remanded to the circuit court of McLean County with directions to enter judgment for plaintiff in the sum of $5,664.

Reversed and remanded.

MILLS and TRAPP, JJ., concur.


text:
    JAMES K. TERWELP et al., Plaintiffs and Counterdefendants-Appellees, v. JAMES LEE SASS et al., Defendants and Counterplaintiffs-Appellants.—(Adams County et al., Defendants.)
    Fourth District
    No. 4—82—0328
    Opinion filed December 23, 1982.

      Chet W. Vahle, of Quincy, for appellants.
    Goehl and Schuering, of Quincy, for appellees.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

The case at bar is in the nature of the classic encroachment and boundary dispute resulting in a feud. Apparently, the parties are willing to spend endless time and money in furtherance of this feud. The plaintiffs-counterdefendants-appellees (plaintiffs) constructed a barn which lay in part across a north-south center section line. The plaintiffs brought an action for temporary and permanent injunctive relief seeking to prevent defendants from interfering with plaintiffs’ use of their barn. Defendants-counterplaintiffs-appellants (defendants) counterclaimed for injunctive relief, alleging encroachment by the barn upon their property and also seeking to quiet title, alleging abandonment of an old roadway which is located between the parties’ property. The parties are abutting landowners, each owning property up to the center section line. An abandoned county road, now overgrown, roughly parallels the north-south center section line. At a trial to the bench, the court found that the old roadway had been abandoned and because of the nature of the deed of dedication and adverse possession, the abandoned roadway should be divided at its middle and the halves awarded to the respective abutting landowners.

The dispute traces its origin to an 1876 document entitled “Deed of Dedication for a Public Highway,” executed by Mary E. Homan. Defendants are Mary Homan’s successors in title, and the disputed tract of land lies wholly in defendants’ chain of title. The legal description contained in the 1876 deed of dedication is ambiguous and purports to convey 30 feet on each side of the center section line. However, the evidence adduced at trial demonstrates that Mary Ho-man owned no interest in any property west of the center section line. It is therefore apparent that Mary Homan was intending to convey by deed of dedication the 60 feet immediately east of the center section line. When the old roadway was actually laid, it was located entirely east of the center section line. The western boundary of the old roadbed was located and measured to be 50 feet east of the center section line. The trial court held that the strip of land located between the center section line and the old roadbed had vested in the plaintiffs by way of adverse possession and upon abandonment of the old roadbed by the county, half of the old roadbed was vested in the plaintiffs and the remaining half in the defendants. Therefore, plaintiffs’ barn which lay in part across the center section line was not an encroachment upon defendants’ property.

The broad question presented is whether the 1876 Homan deed of dedication is in the nature of an easement or whether, the deed of dedication conveyed the strip of land in question in fee simple. If an easement, as claimed by defendants, upon abandonment of the roadway by the county, then it would revert to the conveyor’s successors in title, the defendants. On the other hand, if, as the plaintiffs claim, the conveyance was in the nature of a fee, then upon abandonment of the roadway, it would vest equally between the parties. The parties raise numerous subsidiary issues, but in view of our holding we need not address all issues raised.

While the record demonstrates that the deed of dedication was recorded, apparently no plat was prepared or recorded. Section 2 of “An Act to revise the law in relation to plats” (Ill. Rev. Stat. 1979, ch. 109, par. 2) sets forth the requirements for a statutory dedication of land for public highway purposes. Those elements necessary for a statutory dedication include preparation of a plat by a surveyor which is certified by the surveyor and acknowledged by the owner of the land, the recording of the plat, the certificate, and the acknowledgment in the recorder’s office of the county in which the land is situated. It appears that these requirements have basically remained unchanged since 1874.

A statutory dedication is created by a particular form of the instrument recorded, while a common law dedication may be by a grant or other written instrument or may be evidenced by acts and declarations without a writing. (Hooper v. Haas (1928), 332 Ill. 561, 164 N.E. 23.) As relevant to the case at bar, the important distinction between the two types of dedication is that by statutory plat the fee to the premises purported to be conveyed is vested in the public, subject to its acceptance, while under a common law plat the fee of the tract purported to be conveyed remains in the dedicator, burdened only with an easement over the way in question and subject to the acceptance of the easement by the public. (Clokey v. Wabash Ry. Co. (1933), 353 Ill. 349, 187 N.E. 475.) If the 1876 Homan deed of dedication is a common law dedication or easement, upon vacation, the grantor or his successor in title continues to hold title as before and the property is simply disencumbered of the easement. Kennedy v. Town of Normal (1934), 359 Ill. 306, 194 N.E. 576.

Both the plaintiffs and the trial judge placed heavy emphasis on Prall v. Burckhartt (1921), 299 Ill. 19, 132 N.E. 280. In Prall, the court noted that at common law the dedication of a street or roadway passed merely an easement but that in 1833, the legislature enacted the Plat Act which provided that by statutory dedication the grantor could convey a fee title to the governmental entity for street or roadway purposes. However, subsequent to enactment of the Plat Act, upon vacation of streets or roadways dedicated by plat, frequent litigation arose as to what became of the title of the land when the streets or roadways were vacated. The court in Prall held that by the making and recording of the plat in statutory form, the dedicator granted title to the street or roadway in fee so long as used for public purposes, but upon condition that should the street or roadway be vacated, then the title would pass to the then owners of the lots abutting thereon. The court reasoned that after the dedicator had executed and recorded the plat in conformity with the statute and there had been an acceptance, the dedicator had neither a reversion nor a possibility of reverter in the streets. As applied to the instant case, the trial court relied on Prall, holding that the Homan deed conveyed fee simple to the county and based upon Prall, upon vacation, the roadway would be split among the abutting landowners. However, we consider Frail to be factually inapposite as Frail dealt only with statutory dedications and compliance with the Plat Act. Here there- was no compliance with the Plat Act and the deed was one of a common law dedication. Frail stands for the proposition that a statutory dedication conveys the fee and upon vacation the property may be divided among the abutting landowners. However, Frail did not alter the converse situation that where the conveyance is in the form of a common law dedication, upon vacation the property is disencumbered of the easement and reverts to the original titleholders or their successors in interest. As applied to the case at bar, the Homan deed was a common law dedication and upon abandonment of the old roadway, the title reverted to the defendants as Mary Homan’s successors in title.

Our attention is directed to section 1(b)(6) of “An Act to revise the law in relation to plats” (Ill. Rev. Stat. 1979, ch. 109, par. 1(b)(6)) (the Plat Act) as authority that fee simple title for highway purposes may be conveyed by deed. That section provides: “(b) The provisions of this Act do not apply and no plat is required in any of the following instances: *** 6. The conveyance of land for highway or other public purposes or grants or conveyances relating to the dedication of land for public use or instruments relating to the vacation of land impressed with a public use.” However, that provision was not enacted until 1959 and only appears to be a codification in part of the common law rule in which there existed three ways in which a public highway could be established: (1) by condemnation in the mode prescribed by the statute; (2) by grant, which may be established by producing the deed making the grant, or by long continued use for the statutory period which implies a previous grant (prescription); and (3) by dedication to the public by the owner of the soil. (Koch v. Mraz (1929), 334 Ill. 67, 165 N.E. 343; Grube v. Nichols (1864), 36 Ill. 92.) Therefore, while it has long been possible to establish a public highway via a deed, it appears that at common law a conveyance by deed for a public highway constituted a common law dedication.

We are also aware of section 9 — 127 of the Illinois Highway Code (Ill. Rev. Stat. 1979, ch. 121, par. 9—127) which provides: “Except in cases where the deed, or other instrument, dedicating a highway or part thereof, has expressly provided for a specific devolution of the title thereto upon the abandonment or vacation thereof, whenever any highway or any part thereof is vacated under or by virtue of any Act of this State or by the highway authority authorized to vacate the highway, the title to the land included within the highway or part thereof so vacated, vests in the then owners of the land abutting thereon, in the same proportions and to the same extent, as though the highway had been dedicated by a common law plat (as distinguished from a statutory plat) and as though the fee of the highway had been acquired by the owners as a part of the land abutting on the highway.” Identical language to that provision is found in section 11—91—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 11—91—2) which was construed by the court in Grimmig v. Ferris (1979), 79 Ill. App. 3d 546, 399 N.E.2d 141. The court in Grimmig found that the statute in question did not alter the common law rule that the grantor retains titlé to dedicated property subject to an easement in favor of a governmental entity, unlike a statutory dedication where fee simple title would be vested in the public upon acceptance. We concur with the holding in Grimmig and conclude that the highway provision code does not alter the rule that upon vacation of a common law dedication, the easement is merely extinguished and the parcel remains in the grantor or his successor in title.

The trial court erred in determining that the strip of land located between the north-south center section line and the actual location of the old roadbed was vested in the plaintiffs by way of adverse possession. To constitute adverse possession there must be a hostile, actual, visible, notorious, exclusive and continuous possession under claim of ownership, implying an assertion of ownership adverse to that of the true owner and all others. (Hunsley v. Valter (1958), 12 Ill. 2d 608, 147 N.E.2d 356.) Plaintiffs have demonstrated no claim of adverse possession as the record demonstrates that plaintiffs were completely unaware of any claim they might have to the strip until the outbreak of hostilities in 1977. Further, the evidence shows that Elmer Sass, one of the defendants, has paid the taxes on that strip of land since at least 1965, and there was also substantial evidence that Elmer Sass had permissively allowed plaintiffs’ predecessor in title to farm that strip of ground to avoid its being weeded over. Moreover, adverse possession would also have had to run against the county, and the long-established rule is that adverse possession will not lie as against a public entity regarding the dedication of streets and highways for use by the public. Russell v. City of Lincoln (1902), 200 Ill. 511, 65 N.E. 1088.

It has often been said that law will look one way and equity will look the other. Even though we have concluded that the Homan deed was in the form of a common law dedication or easement and that the fee reverted to Homan’s successor in title upon extinguishment, we do not believe that plaintiffs should be required to remove the encroaching barn. It is established that if an encroachment is unintentional and the cost for removing it is great, and the corresponding benefit to the adjoining landowner is small and damages can be had at law, courts will ordinarily refuse to grant injunctive relief and not require the offending party to remove the encroachment. (Stroup v. Codo (1965), 65 Ill. App. 2d 396, 212 N.E.2d 518; Cammers v. Marion Cablevision (1975), 26 Ill. App. 3d 176, 325 N.E.2d 62.) We conclude that the evidence is sufficient to demonstrate that plaintiffs’ encroachment was unintentional. In Stroup, the court stated:

“In order for an encroachment to be intentional, it must be deliberate in the sense that the owner either proceeded to construct after notice of the encroachment, or that in ascertaining the boundary *** he so failed in the exercise of any appreciable precaution as to indicate a wilful disregard of the rights of the owner. [Citations.] The mere showing that the encroachment exists does not establish that it was intentional.” Stroup v. Codo (1965), 65 Ill. App. 2d 396, 401, 212 N.E.2d 518, 520.

While there is some dispute as to the extent of the notice which plaintiffs had, we conclude that there has been no showing of a wilful disregard of the rights of the defendants. We also note that the evidence demonstrates that the cost of removing the encroachment would be substantial and that the corresponding benefit to the defendants would be small. The 30-foot strip of land had been appraised to be worth only $700 and damages are available to the defendants at law. Therefore, this case will be remanded to the circuit court of Adams County to ascertain damages to which the defendants are entitled and otherwise to fashion an equitable solution of the dispute.

In view of the foregoing considerations, the judgment of the trial court is reversed and remanded with directions.

Reversed and remanded with directions.

GREEN and LEWIS, JJ., concur.


text:
    FIRST NATIONAL BANK, Plaintiff-Appellee, v. MARIE J. FRAKER et al., Defendants-Appellants.—(JACK K. FRAKER et al., Defendants.)
    Fourth District
    No. 4—82—0440
    Opinion filed December 28, 1982.
    John R. Wolgamot and James K. Borbely, both of Kirk, Wolgamot, Kurth, Borbely, DeArmond & Dillon, of Danville, for appellants.
    Randolph M. Rich, of Meehling, Rich and Bernardoni, of Marshall, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Defendants, Marie J. Fraker and Robert W. Fraker, appeal an order of the circuit court of Clark County, entered on June 25, 1982, in a foreclosure proceeding brought by plaintiff, First National Bank, appointing Edgar County Bank and Trust Co. receiver pendente lite of a 160-acre tract of farmland in Clark County. We have jurisdiction pursuant to Supreme Court Rule 307(a)(2) (87 Ill. 2d R. 307(a)(2)). We hold that the circumstances alleged and shown were insufficient to justify the appointment. Accordingly, we reverse.

The foreclosure suit was filed May 7, 1982. It sought to foreclose each of the one-third undivided beneficial interests, of defendants Marie J., Robert W. and Jack Fraker in a land trust containing the 160-acre' tract. The complaint alleged each of the three defendants had pledged their beneficial interest to plaintiff to secure $400,000 of debt for which defendant Jack Fraker, who has not appealed, and his wife JoAnne Fraker were obligors. Plaintiff was stated to be not only the holder of the security interest but also the trustee of the land trust. Payments on the indebtedness were stated to be in default. The appealing defendants maintain (1) plaintiff failed to allege and prove grounds to support the appointment of the receiver, and (2) the court erred in making the appointment without hearing evidence as to the qualifications of the receiver and in waiving bond by the applicant and the receiver without hearing evidence on those points.

Plaintiff’s complaint contained the following material allegations: (1) the obligors on the instrument of indebtedness were insolvent; (2) the 160-acre tract was scant security for the debt; (3) real estate values in the county were declining; and (4) plaintiff would be irreparably damaged if a receiver pendente lite were not appointed. Defendants do not dispute that payments on the indebtedness were in default or that Jack and JoAnne Fraker were not only insolvent but, in fact, in bankruptcy. An experienced appraiser who had inspected the land merely from a nearby road testified that in his opinion the tract had a value of $317,500 and that land values in the county had decreased approximately 15% in the last two years. The defendants requested that the trial court strike the testimony of the appraiser on the grounds that testimony of merely viewing the land from the road did not constitute sufficient foundation for his opinion. The trial court denied this request. On appeal, they maintain that his testimony was not strong enough to support the extraordinary remedy of the appointment of a receiver pendente lite. That appraiser’s testimony was the only evidence as to the value of the tract.

Plaintiff asserts that to justify the appointment of a receiver pewdente lite in a foreclosure proceeding when the obligors are in default on the indebtedness, the security holder need allege and prove only that the obligor is insolvent and the security scant. Plaintiff’s position is based upon the case of Haas v. Chicago Building Society (1878), 89 Ill. 498. There an order appointing a receiver after a decree of foreclosure had been entered was affirmed. The opinion indicated that not only was the debtor insolvent and the security insufficient but also the owner had permitted the property to be sold for lack of payment of taxes and had failed to pay premiums for insurance policies covering the tract. The opinion discussed cases from other jurisdictions ruling upon the circumstances in which a receiver could properly be appointed in foreclosure proceedings. In the course of its opinion the court stated that a receiver would not be appointed “unless it be made to appear the mortgaged premises are an insufficient security for the debt, and the person liable personally for the debt is insolvent, or at least of very questionable responsibility.” (89 Ill. 498, 502.) The court later qualified that statement with the following language:

“We take it, then, to be undoubted law, the court of chancery may, where the security is inadequate and the mortgagor unable to pay the deficiency, and a foreclosure proceeding is pending, appoint a receiver, if there are circumstances of fraud or bad faith on the part of the mortgagor, or other facts involved which would render a denial of the relief sought inequitable and unjust. It is not necessary, for the decision of the case before us, we should express an opinion as to whether such appointment should be made where circumstances and facts, such as we have referred to, do not exist in conjunction with the two elements first spoken of, and it will be time enough to dispose of that question when it arises.” (Emphasis added.) 89 Ill. 498, 504.

Plaintiff contends the foregoing language from Haas means the only essential elements to authorize the appointment of a receiver in a foreclosure proceeding are the insolvency of the obligors and the insufficiency of the security. We do not agree. Rather, we interpret the Haas court to have indicated the two factors of insolvency and insufficiency are necessary. However, the supreme court chose not to pass upon the question of whether fraud, bad faith, or other circumstances need exist. The court did not have to pass upon the need for the latter factors because of the showing that the owner had failed to pay taxes and insurance premiums.

In support of its contention, plaintiff maintains that several appellate court cases have interpreted Haas as holding that only the factors of insolvency and insufficiency are necessary. In Glennon v. Wilcox (1910), 159 Ill. App. 42, an order appointing a receiver in a mechanics lien foreclosure proceeding was reversed where no showing was made of either the insufficiency of the security or insolvency of the debtor. The court stated:

“To warrant the appointment of a receiver in cases of the nature of the one under discussion two conditions are essential of concurrence, neither of which can be dispensed with. They are, first, that the debtor is insolvent, and, second, that the property on which the lien is sought to be enforced is meagre and scant security for the debt.” (159 Ill. App. 42, 44.)

In White v. Mackey (1898), 85 Ill. App. 282, an order refusing the appointment of a receiver to serve during the period of redemption was reversed. The trust deed contained a provision authorizing the appointment of a receiver at any time during foreclosure proceedings. The appellate court citing Haas noted that the security was scant and the obligors insolvent. In Gooden v. Vinke (1899), 87 Ill. App. 562, the trust deed being foreclosed had authorized the trustee upon default to take possession of and to rent the premises and to take other steps to protect the property. The trial court entered an interlocutory order appointing a receiver. On review of that order, the appellate court affirmed the appointment. The court noted that a receiver is usually not appointed absent a showing of insolvency and insufficient security. However, because the trustee had refused to exercise his powers, the appellate court affirmed the order appointing a receiver even though the obligor was not shown to be insolvent.

The appellate decisions described above were not from this district. Moreover, none of them serve as a direct holding applicable to a case of the nature before us. In Glennon, the order of appointment was reversed. Unlike here, in Glennon the trust deed authorized the appointment of a receiver at any time and in Gooden the provisions of the trust deed were deemed to authorize appointment of a receiver upon default of the trustee. The cases also differ from the instant case in that, here, the mortgagors objected to the timeliness of the appointment. The defendants maintain that something more than insolvency and inadequate security must be shown when, as here, the appointment is made before the defendants are required to answer.

Defendants cite several cases where orders appointing receivers pendente lite have been reversed with appellate courts stating that absent fraud, great emergency or urgent necessity, a receiver should not be appointed prior to the answers of the parties defendant. Most of those cases differ from the case before us in that here defendants were given ample notice and time to prepare for hearing on the request for a receiver. In Baker v. Administrator of Backus (1863), 32 Ill. 79, and Larson v. West (1903), 110 Ill. App. 150, the orders were entered ex parte. In Iowa Structures Unlimited, Inc. v. First National Bank (1981), 99 Ill. App. 3d 180, 425 N.E.2d 64, one day’s notice was given. In Steinwart v. Susman (1968), 94 Ill. App. 2d 471, 238 N.E.2d 200, the order of appointment was issued ex parte and before service of summons. In Nartzik v. Ehman (1914), 191 Ill. App. 71, an order of appointment entered one day after the filing of the complaint was affirmed. Of these cases, only Iowa Structures Unlimited, Inc. concerned the foreclosure of a lien. Nevertheless, that case did state a rule that when a receiver is appointed before answer, a stronger showing than that made here is necessary.

Defendants also rely upon the holdings of Fox v. Fox Valley Trotting Club, Inc. (1953), 349 Ill. App. 132, 110 N.E.2d 84, and Simpson v. Adkins (1941), 311 Ill. App. 543, 37 N.E.2d 355, that a party seeking the appointment of a receiver pendente lite must make a showing of a reasonable probability that he will prevail on the merits. Neither case involved a lien foreclosure. However, that requirement is consistent with the statement of the supreme court in another case not involving a foreclosure. In Bagdonas v. Liberty Land & Investment Co. (1923), 309 Ill. 103, 110, 140 N.E. 49, 52, th- court stated:

“The general rule is that the applicant must show, first, that he has a clear right to the property itself or has some lien upon it *** and second, that the possession of the property by the defendant was obtained by fraud, or that the property itself, or the income arising from it, is in danger of loss from neglect, waste, misconduct or insolvency.”

Ordinarily in a mortgage foreclosure proceeding, the likelihood of the mortgagors recovering is not in issue. Here, however, at the hearing on the request for the receiver, the court took judicial notice of a related case in that court in which Marie J. Fraker and Robert W. Fraker had obtained a preliminary injunction prohibiting the plaintiff in this case from disposing of the Frakers’ beneficial interests in the property involved here. This preliminary injunction issued by the trial court indicated that Marie J. Fraker and Robert W. Fraker had established a probability of success in that case. It appears that a probability of their success in that case would be inconsistent with a probability of success by plaintiff here.

In the absence of a clear holding to support plaintiff’s contention that in a foreclosure proceeding a security holder is entitled to appointment of a receiver pendente lite upon mere allegation and proof that the debt is in default, the obligors insolvent and the security scant, we do not deem the rule to be absolute. We note the considerable authority that a receiver pendente lite should not be appointed before answer absent a showing stronger than that alleged and proved here. Accordingly, we conclude that a receiver should not have been appointed here when it was unclear that the plaintiff would ultimately prevail on the merits and no allegation or showing was made of fraud, mismanagement or great emergency or necessity. We note that some testimony was presented by a witness who viewed the tract from a road that planting was proceeding slowly. However, there was testimony presented on behalf of defendants which gave a satisfactory explanation of the situation. Plaintiff did not allege any mismanagement in the planting of the crops and does not argue that this is a factor in support of the court’s order.

We recognize that the situation of the plaintiff may be quite different against defendant Jack Fraker, who has not appealed and who does not have available the same defense possibly available to the other defendants. However, a receiver cannot take possession of an undivided interest in the farm. No showing was made that plaintiff’s need for a receiver as to the interest of Jack Fraker is so compelling that the other defendants’ interests should have been so encumbered. Accordingly, we reverse the order appointing the receiver pendente lite.

We need not discuss other contentions of defendants in detail. The documents by which defendants pledged their interest to plaintiff contain an assignment of “the right to collect and receive proceeds from rentals or other dispositions or realizations of any kind from said property or part thereof.” Accordingly, if plaintiff prevails, it does have an interest to be protected in the crops. If a receiver is subsequently appointed attention should be given to section 2 — 415 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—415), with particular reference to the provisions for notice and hearing before waiving a receiver’s bond.

Reversed.

MILLS and TRAPP, JJ., concur.


author: JUSTICE MILLS

text:
    JEROME WILLIAMS et al., Plaintiffs-Appellees, v. JAMES THOMPSON, Governor, et al., Defendants-Appellants.
    Fourth District
    No. 16470
    Opinion filed December 23, 1982.

      Tyrone C. Fahner, Attorney General, of Chicago, and Donald D. Bernardi, State’s Attorney, of Pontiac (Russell C. Grimes, Jr., and Robert P. Coyne, Assistant Attorneys General, of counsel), for appellants.
    Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

Do penal inmates have a protected right to continue training in a program that the proper State authorities determine to abolish?

We hold they do not.

We reverse.

Plaintiffs here are inmates of the Pontiac Correctional Center (Pontiac). They had all been assigned for various lengths of time to duty in the dental laboratory at Pontiac and are endeavoring to obtain certification as dental laboratory technicians.

They initially filed a pro se complaint seeking to enjoin defendants from closing the lab. Following appointment of counsel, a second complaint, in two counts, was filed. Count I of the second complaint, which alleged that defendants improperly contracted with a private laboratory to provide services that had been provided by the Pontiac lab, is not involved in this appeal. Count II alleged that the Pontiac lab had been shut down — without affording plaintiffs notice or an opportunity to be heard — despite the laboratory’s consistent profitability and its rehabilitative value. The complaint further alleged that plaintiffs suffered irreparable harm in the form of denial of further vocational training.

Defendants’ motion to dismiss was denied and a temporary restraining order was issued. The court subsequently denied defendants’ motion to reconsider and issued a preliminary injunction requiring defendants to either allow plaintiffs to complete their dental laboratory technician training at Pontiac or to provide them with alternative means of acquiring such training. In issuing the injunction, the court found that the plaintiffs had a right to complete dental laboratory technician training once they had begun it.

INJUNCTION

At issue here is the propriety of the injunctive order.

To obtain an injunction, the plaintiff must show (1) he has a right which needs protection; (2) he will suffer irreparable harm without the protection; (3) he has no adequate remedy at law; and (4) he is likely to succeed on the merits. (Illinois Consolidated Telephone Co. v. Air-call Communications, Inc. (1981), 101 Ill. App. 3d 767, 428 N.E.2d 747.) The issuance or denial of a preliminary injunction is addressed to the sound discretion of the trial judge and should not be disturbed on appeal unless it is against the manifest weight of the evidence. Booth v. Greber (1977), 48 Ill. App. 3d 213, 363 N.E.2d 6.

RIGHT

The element which defendants contend is lacking here is any right of plaintiff which needs protecting. In general, lawful incarceration limits — but does not completely eliminate — the rights and privileges of prisoners. (Compare Jones v. North Carolina Prisoners’ Labor Union, Inc. (1977), 433 U.S. 119, 53 L. Ed. 2d 629, 97 S. Ct. 2532, and Wolff v. McDonnell (1974), 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963.) As Wolff indicates, “*** there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.” 418 U.S. 539, 556, 41 L. Ed. 2d 935, 951, 94 S. Ct. 2963, 2975.

In striking this balance, the Supreme Court in Meachum v. Fano (1976), 427 U.S. 215, 49 L. Ed. 2d 451, 96 S. Ct. 2532, held that transfer of prisoners from one institution to another does not require a notice or a hearing because it is not any substantial deprivation of rights which triggers due process protections, but only those which are based on State law entitlements. (See Board of Regents v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701.) Because State law did not condition transfer on any specific events, but allowed it in a wide variety of circumstances at the discretion of prison officials, no State law entitlement existed.

Meachum has been interpreted as holding that a State law entitlement exists when there is a limitation on prison official’s discretion to withdraw a privilege or benefit. (Arsberry v. Sielaff (7th Cir. 1978), 586 F.2d 37.) The limitation may come from statute, rule, or regulation or by institutional policy or custom. (Arsberry.) The Arsberry court found no State law entitlement to participate in educational programs accrued from section 3 — 6—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1003—6—2(d)) because the statute is merely a general policy statement that prisoners should have access to educational programs, and does not condition withdrawal of access on any specific events.

CONSTITUTION

Plaintiffs’ first contention here is that the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, sec. 11) (which provides that following conviction of a crime, “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship”), limits defendants’ discretion. This position is simply untenable. Article I, section 11, is clearly directed toward a judge’s determination of what sentence to impose, not to the carrying out of that sentence by prison officials. Although judges must consider rehabilitation in imposing sentence, it is the rehabilitative potential of the defendant, not the Illinois prison system, which must be assessed. (See People v. Smith (1980), 91 Ill. App. 3d 438, 414 N.E.2d 1281 (holding that both the Illinois Constitution and the Unified Code of Corrections require assessment of defendants’ rehabilitative potential in imposing sentence).) To adopt plaintiffs’ interpretation would prevent any sentence unless there was evidence to show that the sentence would rehabilitate. This surely is not the intended meaning of article I, section 11.

STATUTES

Next, plaintiffs contend that several provisions of the Unified Code of Corrections limit defendants’ ability to close the Pontiac Dental Lab. Specifically, they rely on sections 1 — 1—2(c) and (d) of the Code, which state that it is the purpose of the Code to “prevent arbitrary or oppressive treatment of persons adjudicated offenders ***” and to “restore offenders to useful citizenship.” (Ill. Rev. Stat. 1981, ch. 38, par. 1001—1—2(c), (d).) While this latter purpose has been noted by the supreme court (People v. Mahle (1974), 57 Ill. 2d 279, 312 N.E.2d 267), it is not the type of legislative statement which will support a claim of entitlement. As in Arsberry, it is merely a general policy statement and no specific conditions for the withdrawal of the benefit are stated.

Plaintiffs also argue that section 3 — 12—3 of the Code, which provides that the Department of Corrections “shall maintain programs of training in various vocations,” limits defendants’ discretion. (Ill. Rev. Stat. 1981, ch. 38, par. 1003—12—3.) The language of this section is almost identical to that involved in Arsberry, the only differences being the substitution of the word “maintain” for the word “provide” and the reference to vocational training as opposed to education. Plaintiffs place special emphasis on the use of the word maintain, but without cause. First, in the sense in which the words are used — to supply — maintain and provide are synonymous. (Black’s Law Dictionary 859 (5th ed. 1979).) Second, even if the terms are not completely synonymous, the rationale of Arsberry is still compelling. Section 3 — 12—3 sets forth no specific events upon which withdrawal of access to vocational training is conditioned. Therefore there is no State law entitlement and due process is not violated.

Similarly, plaintiffs’ reliance on section 3 — 12—6 of the Code is misplaced. That section requires the Department of Corrections to establish industrial production to secure “the most practical and efficient use of labor.” (Ill. Rev. Stat. 1981, ch. 38, par. 1003 —12—6.) However, the determination of what is the most practical and efficient use of labor is left to the discretion of Department of Corrections officials, and the section confers no due process rights on plaintiffs.

Plaintiffs’ reliance on section 3 — 12—7 of the Code begs the question on this appeal. That section provides only that if prison industries produce certain goods, the State and its agencies must satisfy their requirements by purchasing from the prison industry. It does not require prison industries to produce any goods at all! As the question here is production — not marketing — section 3 — 12—7 has no relevance.

REGULATIONS

Finally, plaintiffs rely on Administrative Regulation 700 of the Department of Corrections, which provides that correctional industry programs shall “[discontinue, continue or expand on the basis of profitability and create new production programs as market research indicates feasible.” While this does establish a criteria for discontinuing an industry program — profitability—it confers no rights on plaintiffs. The regulation clearly was not intended to give prisoners input into the financial decisions of the Department of Corrections. See Dixon Association for Retarded Citizens v. Thompson (1982), 91 Ill. 2d 518, 440 N.E.2d 117, holding that restrictions on transfer of mental health patients do not apply when a facility is being closed.

Further, even if A.R. 700 can be said to be intended to benefit prisoners — and clearly it was not — it does not preclude the Department of Corrections from discontinuing a profitable program in favor of one which is even more profitable. In fact, section 3 — 12—6 of the Code would seem to vest discretion in the Department of Corrections officials to make just such a decision. We reject plaintiffs’ argument that in Kraut v. Rachford (1977), 51 Ill. App. 3d 206, 366 N.E.2d 497, Illinois adopted an expansive view of property rights sufficient to support due process claims. There is language in Kraut about the objective expectancy of the continuance of a benefit, but a full reading of the case makes clear that the court was using the term “objective expectancy” synonymously with “legitimate claim of entitlement.”

And, Kraut is not analogous to the present situation. There, the court found: that the plaintiff was entitled to a tuition-free education somewhere; that he had received such an education at a particular school in the past; and that his situation had not changed. Therefore, the court ruled that he had a right to continue at the particular school tuition free. Here, plaintiffs are prisoners whose due process rights are limited. They have no right to vocational training. (See Arsberry.) They are not being denied access to an existing-program; one is being abolished. It is inconceivable that the Kraut court would have required the school board to keep a school open to allow plaintiff to complete his education at that school, and we will not impose such absurd a requirement on defendants.

Because plaintiffs had no right to continue their training to be dental lab technicians, it was an abuse of discretion to enter the injunction below, and it is reversed.

Reversed.

TRAPP and GREEN, JJ., concur.


author: JUSTICE TRAPP PRESIDING JUSTICE WEBBER,

text:
    FRANK C. KEY, Plaintiff and Counterdefendant-Appellant, v. MINNIE MARIE KEY, Defendant and Counterclaimant-Appellee.—(Max Carpenter et al., Defendants.)
    Fourth District
    No. 4—82—0178
    Opinion filed December 29, 1982.
    WEBBER, P.J., dissenting.

      John J. Yelvington, of Mattoon, for appellant.
    Ralph D. Glenn, of Glenn and Logue, of Mattoon, and Harrison J. Mc-Cown, of Nichols, Jones, McCown & Lincoln, of Tuscola, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff filed a complaint for partition of certain land located in Coles County. Defendant, Minnie Key, plaintiff’s mother, counterclaimed, seeking to impose a trust on the entire acreage. The trial court found that plaintiff held the land in trust for Minnie, dismissed the complaint for partition, and ordered plaintiff to convey to Minnie any interest he might have in the premises. We affirm the trial court.

The derivation of the parties’ title may be briefly stated. In 1947, plaintiff’s father and Minnie’s husband, Charles Key, was desirous of purchasing the land, but was unable to secure a sufficient loan. Plaintiff and his brother, Eugene, had recently been discharged from military service and had available to them certain provisions of the Soldiers’ and Sailors’ Civil Relief Act, commonly called the “G.I. Bill,” by which they could obtain government-guaranteed mortgages. The purchase price of the land was $15,250; Charles, the father, provided a down payment of $2,250; plaintiff obtained a G.I. loan of $6,500 from the Veterans’ Administration; Eugene, the brother, was only 19 years of age at the time and hence it was necessary under Federal regulations that a guardian be appointed for him in order to obtain his loan.

Charles filed a petition for guardianship in the circuit court of Douglas County, seeking to have himself appointed as guardian for Eugene. The court allowed the petition and Charles then signed the mortgage as guardian for Eugene. The conveyance was then made to plaintiff and Eugene as cotenants; the mortgage to Prudential Insurance Company in the amount of $13,000 was signed by plaintiff and Charles in his capacity as guardian.

In the verified petition filed by Charles for appointment as guardian of Eugene, it is said:

“[T]hat upon the consummation of the purchase of said real estate, the title and ownership thereto will be in the said Charles Eugene Key and Frank Clarence Key, in fee simple, as tenants in common, each owning an undivided one-half interest thereof, and the farming equipment and farming enterprise and the profits therefrom will be shared equally between them.”

Charles did not sign the mortgage in his individual capacity. The signatures appearing on that document in the record are: “Charles Eugene Key, a minor, by Charles H. Key His Guardian Frank A. Key” (handwritten portions underscored, the rest typewritten).

Upon consideration of the opinions in Bowman v. Pettersen (1951), 410 Ill. 519, 102 N.E.2d 787, Wright v. Wright (1954), 2 Ill. 2d 246, 118 N.E.2d 280, West v. Scott (1955), 6 Ill. 2d 167, 128 N.E.2d 734, and Suwalski v. Suwalski (1968), 40 Ill. 2d 492, 240 N.E.2d 677, we affirm the determination of the trial court that the transaction created a resulting trust in favor of the father, and his devisee.

In each opinion the essential characteristic is that a resulting trust was employed by the court to protect and preserve the interest of the party who paid the consideration and the expenses incident to the acquisition of the property.

In Bowman v. Pettersen, heirs sued to establish a resulting trust as to a dwelling in joint tenancy by the ancestor. When the ancestor was of advanced years he purchased the property directing that the deed be placed in joint tenancy with a young woman associate. Distinguishing the presumption which exists when a husband purchases real estate and places it in joint tenancy with his spouse, the supreme court noted that the chief factual issue was which joint tenant had paid the consideration for the real estate.

It appears that in Pettersen the conveyance was substantially a cash transaction. The opinion states:

“A resulting trust arises by operation of law where one person pays or furnishes the consideration for a deed conveying real estate to another. Whether or not such a trust arises depends in every instance on the intention, at the time of the conveyance, of the person who furnishes the purchase price. [Citations.] Such a trust arises, if at all, the instant the legal title is taken, and is founded upon the natural equity that he who pays for the property should enjoy it, unless he intended by the vesting of title to confer a beneficial interest upon the grantee. [Citations.] The payment of consideration raises a prima facie presumption in favor of a resulting trust. This presumption may be rebutted by parol proof of an intention on the part of the payor that the grantee shall take the beneficial interest and not merely the legal title.” (Emphasis added.) 410 Ill. 519, 524, 102 N.E.2d 787, 790.

With the citation of Kane v. Johnson (1947), 397 Ill. 112, 73 N.E.2d 321, the court stated:

“[T]he expressed intent as shown by the direction and the deed, standing alone, must give way to the rule of equity which protects the party paying the purchase price by raising a re-suiting trust in his favor.” 410 Ill. 519, 531-32, 102 N.E.2d 787, 794.

In West v. Scott, the application of a prima facie presumption of a resulting trust was reiterated. By reason of the age of the plaintiff, the lender required a cosignor of a note and mortgage. Hence, title was placed in joint tenancy with a niece who so cosigned. Upon plaintiff’s action to quiet title, the court directed the niece to convey her claimed interest to plaintiff. The court stated:

“It is argued here that the necessity of a cosigner on the mortgage note takes this case out of the ordinary rule of resulting trusts because the signing of the note was consideration for the conveyance to defendant. It is conceded in the testimony that plaintiff furnished the entire consideration for the purchase of the property and that defendant has made no payments on the mortgage note and does not anticipate doing so. Thus, the cosigning did not constitute a quid pro quo for the conveyance” (6 Ill. 2d 167, 173, 128 N.E.2d 734, 737)

and continued:

“Taking the evidence as a whole, we feel that plaintiff has clearly and convincingly proved that she paid the entire price for the property placed in the joint names of the plaintiff and the defendant and has paid for all improvements thereon, the taxes and all mortgage note payments. Such facts raised a prima facie presumption in favor of a resulting trust and imposed the burden upon the defendant to show that she was to have some beneficial interest in the property.” 6 Ill. 2d 167, 175, 128 N.E.2d 734, 738.

In Suwalski v. Suwalski (1967), 88 Ill. App. 2d 419, the trial court imposed a resulting trust upon the real estate held in joint tenancy. Plaintiff’s father sought to purchase a home by a substantial down payment and a mortgage. By reason of his then age, he was unable to procure the full amount of the loan required. The defendant, a son, cosigned the contract note and mortgage and at the closing of the sale paid $1,500 to the lending institution. Title was taken in joint tenancy. Later, the father tendered $1,500 to the son and demanded conveyance. The latter then contended that he was a purchaser for value and an owner in joint tenancy.

The record showed that apart from the $1,500 initially paid, the son had not paid any of the mortgage payments, taxes, repairs, or improvements. The appellate court (Suwalski v. Suwalski (1967), 88 Ill. App. 2d 419, 424, 232 N.E.2d 64) reversed the judgment of the trial court, noting the principle that “a resulting trust arises, if at all, at the time of purchase and is based upon the intention of the parties at that time” and commented, that plaintiff’s evidence of payment “relates to the actions of the parties after the transactions in dispute.”

The supreme court reversed the appellate court and affirmed the trial court with a finding of a resulting trust for the reason that the record disclosed that the payment of $1,500 by the son to the grantor and the fact that he was named as grantee in the deed did not make the son a joint tenant, because the intention of the parties was that the $1,500 was considered a loan. The opinion quoted from 3 Scott on Trusts sec. 448, in part:

“Suppose that B lends money to A in order that A may purchase land from X, but B pays the purchase money directly to X and takes title in his own name. It is true that in that case the money which was advanced by B never actually belonged either legally or equitably to A. Just before B paid it over to X, the money belonged to B; just after B paid it over to X, the money belonged to X. There were not two separate transactions in which B first lent the money to A, and A subsequently paid it over to X, in which case it would have been clearly A’s money which was paid to X. The courts have rightly held, however, that it is immaterial that the loan to A and payment to X constitute a single transaction. A loan may be made in other ways than by handing the money over to the borrower. It may be made by paying it to another at the borrower’s request. Hence although B pays the purchase money directly to X, yet in substance it is A’s money, being lent to A by B. There is therefore a resulting trust for A.” (40 Ill. 2d 492, 498, 240 N.E.2d 677, 680.)

As to the relevant facts supporting the conclusion, the court stated:

“There was a question about appellant’s credit for the full loan. The appellee made no contribution to the mortgage payment (though without corroboration he claimed a payment of $10 per week) and did not contribute to insurance premiums, real-estate taxes or water-bill payments. He did not claim or exercise any ownership rights, ***.” 40 Ill. 2d 492, 499, 240 N.E.2d 677, 681.

The opinion in Wright contains many factual matters similar to those found on this appeal. Plaintiffs wished to purchase the house, which she then leased and rented as student housing. She was unable to procure conventional financing but her son was eligible for a “G.I. loan.” It was arranged that he procure the loan for such amount as he was eligible, and a supplemental loan secured by a second mortgage was obtained from a friend. The conveyance and mortgage were solely in the name of plaintiff’s son, but following the conveyance plaintiff paid all mortgage payments, taxes, and expenses concerning the real estate. After five years, the son claimed to own the property. Plaintiff’s action to establish a resulting trust was dismissed for want of equity in the trial court.

The supreme court reversed the trial court, saying:

“Defendant maintains that he furnished' the entire consideration for the purchase of the property. Literally, this is true; he alone signed the two notes and the mortgages securing them. An examination of the entire transaction shows, however, that the proceeds of the mortgage notes were paid to the seller for the direct benefit of plaintiff. The situation is essentially the same as if the payment to the seller was a payment by the plaintiff of the funds borrowed by the mother from the son. Under such circumstances, the prerequisites to the raising of a resulting trust have been met. The evidence is clear and convincing that at no time did either plaintiff or defendant intend that he should have any beneficial interest in the property. He alone took title; he alone signed the notes and mortgages. His every act was, nevertheless, for and on behalf of plaintiff. His function in the transaction was to extend to plaintiff his credit, which he enjoyed because of his status as a veteran.” (2 Ill. 2d 246, 252-53, 118 N.E.2d 280, 284.)

The opinion continued to recite the Restatement of the Law of Trusts sec. 448 (1935), that the form of the transaction would produce a resulting trust with the named grantee holding the property as security for the loan as a transaction in the nature of a mortgage.

The court held that in the light of the circumstances that the plaintiff paid all of the mortgage payments and other expenses, the defendant son held title under a resulting trust subject to the security interest in the defendant for the mortgage loan.

Here, as in Wright, the conveyance was in the names of the plaintiff and his brother. However, the plaintiff’s father, who was the predecessor in title of defendant mother, made a substantial cash payment at the time of the conveyance and thereafter effectively made all payments upon the mortgages, taxes, and repairs, and the record shows that certain sums advanced by plaintiff upon the mortgage were shortly reimbursed. The trial court found that the plaintiff made no claim to the ownership of the real estate from the date of the conveyance in 1947 until the death of the father in December 1973. Such conclusion is sustained by the record.

This case differs from Wright in that there the evidence was uncontradicted that neither during the negotiations for the sale nor at the time of conveyance was there any intent on the part of the mother or the son that the son would have any beneficial interest in the property. All of the evidence indicated that the son was to be the owner in name only. Here, the direct statement at the time of conveyance was that the sons, as named grantees, were to have the beneficial interest. However, a comparable direction was held not to control in Petterson. Under Wright, Suwalski, and West, the supreme court has examined the conduct of the parties subsequent to the questioned conveyance to determine the intent of the parties at the time of the conveyance. The subsequent payments by the father and then the mother of the principal and interest on the mortgage indebtedness and those for repairs, insurance, and taxes and their receipt of the crops was evidence of this intent. So was evidence that plaintiff made no claim to the ownership of the property from 1947 until the death of his father in December 1977.

The memorandum opinion of the trial court refers to plaintiff’s claim that the “G.I. loan” was obtained through fraud, so that the defendant should not be permitted to recover. The trial court held that the defense was not applicable under the circumstances. The issue of “unclean hands” in obtaining a loan was not initially raised in plaintiff-appellant’s brief, but was referred to in appellee’s brief, and again, in the reply brief.

The trial court’s determination is supported by the opinion in Evangeloff v. Evangeloff (1949), 403 Ill. 118, 85 N.E.2d 709. In an action to establish a resulting trust, it was contended that the transaction was in fraud of creditors and that relief should be barred by the doctrine of “unclean hands.” The opinion quoted from Mills v. Susanka (1946), 394 Ill. 439, 445-46, 68 N.E.2d 904, 907, as follows:

“What was said in the Mills case applies here, ‘The dirt upon plaintiff’s hands must be his bad conduct in the transaction complained of. If he is not guilty of inequitable conduct toward the defendant in that transaction his hands are as clean as the court can require. *** The wrong must have been done to the defendant himself, ***.’ Had the alleged fraud been established as a fact, the maxim could not have been applied by the chancellor because no wrong would have been done to defendants by Naum.” (403 Ill. 118, 126, 85 N.E.2d 709, 714.)

The rule was reiterated in Mascenic v. Anderson (1977), 53 Ill. App. 3d 971, 369 N.E.2d 172. There plaintiff brought an action to establish a resulting trust. The trial court denied relief upon a conclusion that the plaintiff has established the trust to prevent his wife from obtaining any marital interest, and noted that the doctrine of “unclean hands” required such action. The reviewing court reversed and remanded upon the finding that there was no evidence that plaintiffs conduct with regard to his wife had affected the parties against whom relief was sought, and said:

“We deem it well settled that misconduct on the part of a plaintiff which will defeat a recovery in a court of equity under the doctrine of ‘unclean hands’ must have been conduct in connection with the very transaction being considered or complained of, and must have been misconduct, fraud, or bad faith toward the defendant making the contention. (Evangeloff v. Evangeloff (1949), 403 Ill. 118, 126, 85 N.E.2d 709, 714.) The ‘clean hands’ doctrine is not a judicial straightjacket, is not favored by the courts, is not intended to prevent equity from doing complete justice, and its application is a matter for the sound discretion of the trial court.” 53 Ill. App. 3d 971, 972, 369 N.E.2d 172, 173.

Upon such authority, we conclude that the trial court correctly refused to consider the argument of “unclean hands” and we affirm the trial court.

Affirmed.

GREEN, J., concurs.

PRESIDING JUSTICE WEBBER,

dissenting:

I respectfully dissent. The majority rely upon a fact not sustained in the record and upon conduct of the parties subsequent to the conveyance to reconstruct by inference what the intent of the parties was.

I do not quarrel with the extensive authority cited in the principal opinion but suggest that it is inapplicable here. In all of those cases there was no evidence of intent at the time of the conveyance and hence the courts were compelled to examine subsequent conduct in order to divine that intent. In the instant case the sworn statement of the father to the circuit court of Douglas County in petitioning for leave to execute the mortgage cannot be gainsayed nor blinked upon. The same is true of the manner in which the mortgage deed was signed. The father never bound himself individually. Here is specific evidence of intent which was lacking in all of the cases cited in the majority opinion.

The majority state that the father was unable to secure a sufficient loan with which to purchase the property. This theory is not sustained by the record. There is one ambiguous statement only which looks in that direction. The claimant, Minnie, called as a witness her son, Eugene, who had theretofore quit-claimed his interest, and on direct examination the following question and answer were given:

“Q. [Mr. Glenn, claimant’s counsel]: And do you recall the transaction that led to that deed being given? Do you remember the transaction that brought about the preparation and delivery of that deed?
A. [Charles Eugene Key]: Well, my brother and father was-already had seen about this farm before I even got home; and then had had-been this far and found out they had to have two G.I.’s to purchase it and naturally I used mine to purchase it too, so, had to take both of them to purchase it.”

The fact that the parties elected to obtain G.I. loans is not per se proof that other means of financing were unavailable.

There was some conflict in the evidence as to what happened about payments on the mortgage, income from the farm, receipt and retention of gas storage payments, and other such matters following the delivery of the deed. However, it may be assumed that the father until his death, and the mother after that, made all of the mortgage payments, paid taxes and other expenses, and enjoyed all of the income. Subsequent events cannot give rise to a resulting trust. They are significant only in the context of attempting to reconstruct what the intent was at the time of the delivery of the deed when evidence of intent at that time is lacking. That, as I have already stated, is not the case here. There is the sworn statement in the guardianship proceeding and the signatures on the mortgage deed.

The general rule is stated by Professor Bogert:

“It is usually said by the courts that for a claimant to obtain a resulting trust, he must prove payment of the purchase price at the time of the delivery of the deed or other instrument of conveyance, or prior thereto, and that payments made by the claimant after such delivery do not give him the benefit of a resulting trust.” Bogert, Trusts and Trustees sec. 456, at 665 (2d ed. 1977).

This rule has long been followed in Illinois. In Briscoe v. Price (1916), 275 Ill. 63, 67-68, 113 N.E. 881, 883, the supreme court said:

“A resulting trust must arise, if at all, at the time of the execution of the conveyance. A trust will not result to one who pays a part, only, of the purchase money of land conveyed to another unless it be some definite part of the whole consideration, as one-half, one-third, or the like, and the trust can only arise from the original transaction at the time it takes place and at no other time. The funds must be advanced and invested at the time the purchase is made. A resulting trust cannot be created by funds subsequently furnished. It is not possible to raise such a trust by the subsequent application of the money of a third person in satisfaction of the unpaid purchase money.”

In Brooks v. Gretz (1926), 323 Ill. 161, 169, 153 N.E. 643, 646, the supreme court again held:

“A resulting trust does not arise by reason of payments made which are not coincident with the purchase and the deed. It must arise, if at all, from the circumstances and status of the parties as they existed at the time the title was acquired and the money was appropriated and used in the purchase thereof. Money furnished for the purpose of making payments on lands theretofore acquired under a contract cannot create a resulting trust in favor of the person so loaning the money; neither can a resulting trust arise in real estate by reason of the fact that money is loaned or used for the erection of buildings on the property. [Citations.] Where several persons contribute to the purchase of real estate, it is essential, in order to create a resulting trust, that it shall appear that the sums severally contributed were for some distinct interest or definite part of the estate.”

In the instant case there are other items of evidence apart from the payment of expenses and enjoyment of income which militate against the resulting trust theory. On February 23, 1973, the father asked for and obtained from Charles Eugene and his wife a quit-claim deed for their interest in the property. If we truly believed that they had no interest, what was the object of the conveyance? In August 1974 after the father’s death a cousin inquired of the claimant about the purchase of the farm. The following appears in the record upon cross-examination of Minnie Key:

“Q. [Mr. Yelvington, plaintiff’s counsel]: Now, I will ask you, Mrs. Key, if in August of 1974 you advised Frank that a cousin by the name of Madonna wanted to buy the farm. Did you advise him that Madonna Bunion wanted to buy the farm?
A. [Minnie Key]: I told him about her coming down there and wanted to know if we was going to sell it. I said well, I will have to ask Frank about it.
Q. And did you ask Frank at that time what he wanted for his share of the farm?
A. I asked him what he wanted to sell it for cause she wanted to know.”

This evidence was corroborated by the plaintiff and his wife.

In short, there was specific, concrete evidence of intent at the time of the conveyance, admitted by the claimant; there was evidence of subsequent events indicating a belief on the part of the claimant and her husband that they did not own the premises; and payment of obligations subsequent to the conveyance cannot raise a resulting trust.

If the claimant had any remedy here, it was by way of constructive trust. Her counterclaim was in two counts: resulting trust and constructive trust, the latter being predicated upon fraud and breach of fiduciary relationship. However, it appears that the constructive trust theory was abandoned, since only the resulting trust theory was briefed and argued in this court. Points not argued are waived under Supreme Court Rule 341(e)(7). 87 Ill. 2d R. 341(e)(7).

While both resulting trusts and constructive trusts are remedial devices, the distinction between the two should not be blurred as has happened in the majority opinion. Professor Bogert states the difference:

“There now remains to be considered the origin of the two groups of trusts which are usually called implied trusts, namely, resulting and constructive trusts. No effort will be made to revise the terminology or classification of resulting and constructive trusts. The prevailing usage of the courts will be adopted. Resulting trusts will be treated as including purchase-money trusts, instances where an express trust does not exhaust the res given to the trustee, and cases of express trusts which fail in whole or in part. Constructive trusts include those cases where a court of equity finds that the defendant holds a property interest unfairly as against the complainant, but not under an express or resulting trust. They exist where the trust formula is applied as a remedial device, without regard to the intent of the parties.” Bogert, Trusts and Trustees sec. 451, at 610 (2d ed. 1977).

I surmise that the claimant abandoned a constructive trust theory since no evidence could be produced of fraud or breach of fiduciary relation, these being the traditional bases in Illinois. (Ray v. Winter (1977), 67 Ill. 2d 296, 367 N.E.2d 678.) However, recent case law appears to extend the remedy beyond these and to reject such a rigid formula. Compare County of Lake v. X-Po Security Police Service, Inc. (1975), 27 Ill. App. 3d 750, 327 N.E.2d 96; County of Cook v. Barrett (1975), 36 Ill. App. 3d 623, 344 N.E.2d 540; Chicago Park District v. Kenroy (1982), 107 Ill. App. 3d 222, 437 N.E.2d 783.

These eases appear to bring the constructive trust remedy within the ambit of Professor Bogert’s doctrine:

“Wherever equity finds such wrongful holding it will give relief, whether the type of injustice is new or old. The court does not restrict itself by describing all the specific forms of inequitable holding which will move it to grant relief, but rather reserves freedom to apply this remedy to whatever knavery human ingenuity can invent.” Bogert, Trusts and Trustees sec. 471, at 29 (2d rev. ed. 1978).

The claimant has mistaken her remedy and for this defect this court should not grant relief. To do so is to upset the predicates for equitable remedial devices. Henceforth, any claimant, without regard to the circumstances, may maintain, “I paid for it. It’s mine.”

I would reverse the order of the trial court and remand for appropriate partition proceedings.


author: JUSTICE LEWIS

text:
    FIRST NATIONAL BANK OF DECATUR, Plaintiff-Appellee, v. PAMELA K. BARCLAY, Defendant-Appellant.
    Fourth District
    No. 4—82—0390
    Opinion filed December 15, 1982.
    Rehearing denied January 25, 1983.
    Denz, Lowe, Moore, McNutt & Turner, of Decatur (William A. McNutt, of counsel), for appellant.

      Monroe, Wilson, Dyar, McDonald & Moss, of Decatur (Thom Moss, of counsel), for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The facts in this case are not complex and are not a subject of dispute. In 1979, Barclay (defendant) executed a promissory note for $60,000 plus interest computed at 1% over prime. The terms of the note permitted the creditor, First National Bank of Decatur (plaintiff), to confess judgment for the principal and interest due and for reasonable attorney fees, if Barclay defaulted. On April 25, 1980, a confession judgment was entered. Defendant ultimately admitted liability for principal and interest, but disputed the amount of attorney fees awarded. Upon defendant’s motion, the judgment was opened and an evidentiary hearing was conducted on the question of reasonable attorney fees in the case.

At oral argument the parties conceded that plaintiff’s lawyer billed plaintiff for Ylxh hours’ work in the case at a rate of $70 per hour. At the hearing, counsel for the plaintiff testified that his total time in the case amounted to Ylxh hours and that he believed $5,000-$10,000 would be a reasonable fee in the case. Plaintiff also called another local attorney who testified that a reasonable fee in the case would be $6,000-$10,000 and that the customary hourly rate charged in the area for similar work would be between $50 and $150. Based on the testimony of the two witnesses, the trial court awarded plaintiff $5,000 for attorney fees.

Defendant argues that the award of fees was excessive in view of the nature and simplicity of the action. Plaintiff responds that the award was firmly supported by the evidence adduced on the question.

It is now well established that fees may not be determined on the basis of fee schedules. (Goldfarb v. Virginia State Bar (1975), 421 U.S. 773, 44 L. Ed. 2d 572, 95 S. Ct. 2004.) The foundation for any award of fees is the amount of time spent by a lawyer on a case, his ability and the complexity of the work. (Quinsippi Corp. v. Bening (1982), 105 Ill. App. 3d 241, 242, 433 N.E.2d 1368, 1369; Larkin Bank v. Ishak (1976), 43 Ill. App. 3d 918, 357 N.E.2d 840.) Moreover, a party suing for fees must specify the amount of time expended and describe the work performed, whether he is seeking fees from a former client (Serritella v. Plotkin (1980), 89 Ill. App. 3d 739, 412 N.E.2d 7), or from an opponent (Board of Managers, Colony West Townhome Owners Association v. Bucalo (1979), 69 Ill. App. 3d 287, 387 N.E.2d 53). The amount of fees should be determined on the basis of the facts in evidence, rather than upon speculation. Fiorito v. Jones (1978), 72 Ill. 2d 73, 95, 377 N.E.2d 1019, 1025; Lyons Brothers Lumber & Fuel Co. v. Shepherd (1980), 81 Ill. App. 3d 213, 219, 400 N.E.2d 975, 979.

In light of the foregoing principles we believe that the trial court erred in awarding $5,000 in attorney fees. There is no dispute that plaintiff’s counsel spent lUz hours on the case and billed the plaintiff at a rate of $70 per hour. Nor is the reasonableness of the hourly rate contested. Although defendant argues that there was insufficient proof of the attorney’s time, the uncontradicted evidence established that plaintiff’s attorney expended Uz hours preparing the paperwork in the case and llVz hours in total. Counsel tendered his time sheets to defense counsel while on the witness stand, but defense counsel declined to challenge any entry on the sheets. Further, the testimony of plaintiff’s expert indicated that the time claimed was not unusual for such a case.

The record supports an award for YlJz hours of the lawyer’s time, billed at the rate of $70 per hour. To allow any greater award in this case, where the plaintiff and plaintiff’s counsel had agreed upon this fee, would be to sanction an unjustifiable windfall for the plaintiff. The terms of the promissory note obligated the defendant to pay the reasonable attorney fees incurred during collection efforts. Here, it was error for the trial court to find that a reasonable fee exceeded the rate which the plaintiff agreed to pay its counsel in the case.

The decision of the trial court is reversed and remanded to enter a judgment for $1,225.

Reversed and remanded.

TRAPP and GREEN, JJ., concur.