author: JUSTICE HEIPLE

text:
    DANIEL F. KELLY, Petitioner-Appellant, v. DIANE WARNER, Respondent-Appellee.
    Third District
    No. 3—83—0236
    Opinion filed November 9, 1983.

      Daniel F. Kelly, of Indianapolis, Indiana, for appellant.
    Florence L. Bennett, of Peoria, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This is the second time this case has come before us. On August 23, 1977, a Peoria County circuit court entered an order dissolving the marriage of Daniel and Diane Kelly. Custody of the couple’s two children was given to Diane, who remarried and, with the court’s permission, moved to Indianapolis, Indiana, in August of 1981. Daniel’s visitation rights were modified accordingly.

Diane filed her own motion to modify visitation and on December 1, 1981, the court entered an order reducing the visitation rights of Daniel Kelly who appealed to this court.

In an unpublished order, we reversed the trial court holding that the modification of visitation was unreasonably restrictive and manifestly unjust to Mr. Kelly. (Warner v. Kelly, No. 82 — 2, filed November 8, 1982.) Recognizing that some adjustment in the visitation schedule was necessary, we remanded the cause for further proceedings in accord with our opinion. The trial court was directed to hear additional evidence in order to take into account any changed circumstances since the last hearing.

On remand, Diane Warner moved to have jurisdiction transferred to Marion County, Indiana, because all of the parties now lived in Indiana. Daniel had moved to Indianapolis in June of 1982. The court granted the motion finding it no longer had jurisdiction and that Peoria was an inconvenient forum. Mr. Kelly appeals arguing that the court did not lose its jurisdiction and that by transferring the cause, the trial court failed to obey our mandate on remand. We reverse.

The first question is whether the court was deprived of jurisdiction in this matter because all of the parties live in another State. If the trial court no longer had jurisdiction, it was powerless to act. Therefore, transfer of the cause would not have been contrary to our mandate.

The trial court found that it had lost jurisdiction pursuant to the terms of sections 4(b) and 8 of the Uniform Child Custody Jurisdiction Act (hereinafter UCCJA) (Ill. Rev. Stat. 1981, ch. 40, pars. 2104(b), 2018). Section 4(b) provides that:

“(b) A court, once having obtained jurisdiction over a child, shall retain such jurisdiction unless it concedes jurisdiction to a foreign state or none of the parties to the action, including the child, remain in Illinois.”

Jurisdiction to enter the custody modification order of December 1, 1981, was obtained pursuant to section 2104(l)(ii):

“Sec. 4. Jurisdiction, (a) The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:
1. this State * * *
(ii) had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or ***.”

The court also found that Peoria was an inconvenient forum in accord with section 8, which need not be quoted here.

We are aware that the UCCJA and section 2104(b) in particular are intended to operate as limitations on a court’s continuing jurisdiction in custody matters. (Siegel v. Siegel (1981), 84 Ill. 2d 212, 221.) However, we do not believe that section 4(b) was intended to divest a court of jurisdiction in the midst of a custody modification proceeding based on a change in circumstances occurring after the proceeding had commenced but prior to final determination.

The jurisdiction of a court over the subject matter and parties in a case, once fully attached, continues until all issues of fact and law have been decided. Once jurisdiction has been vested, it cannot be divested by subsequent events. Generally, a court’s jurisdiction ceases upon rendition of a final judgment except for such purposes as the enforcement or correction of the judgment. Fiore v. City of Highland Park (1968), 93 Ill. App. 2d 24, 31.

The concept of continuing jurisdiction in child-custody matters permits a court to retain jurisdiction, acquired in the original proceeding, to make future modifications of the decree. Recognizing that the UCCJA now limits continuing jurisdiction, we nonetheless find that, based on the principles set out in Fiore, mere movement of the parties cannot serve to divest a court of its jurisdiction once acquired during modification proceedings wMch are underway but unconcluded.

Applying these principles to the present case, the trial court had properly acquired and retained jurisdiction to enter the order dated December 1, 1981. The fact that Mr. Kelly later moved to Indiana while the case was pending before this court did not divest the court of jurisdiction after the cause was remanded. The trial court retained authority to make a final determination in this matter, and it was error for the court to decline jurisdiction in the middle of unfinished business.

Since the trial court retained jurisdiction, it was under a duty to obey the mandate set forth in our opinion. (City of Springfield v. Allphin (1980), 82 Ill. 2d 571.) We directed the court to conduct further proceedings and take into account any change in circumstances. Instead, the trial court conceded jurisdiction to Indiana after making a discretionary ruling under section 8 finding that Peoria was an inconvenient forum. Perhaps our mandate was misunderstood. On remand, it was our intent that the trial court finish what it had started by making a final adjustment of Mr. Kelly’s visitation rights in accord with the views expressed in our opinion.

The judgment of the circuit court of Peoria County is reversed. The cause is remanded, and the trial court is instructed to conduct further proceedings and enter an order modifying the visitation rights of Daniel Kelly consistent with the views set forth in our previous opinion. We further direct that the resolution of this matter be heard by a trial judge to be selected by the Chief Judge of the Tenth Judicial Circuit who has not had previous involvement "with this case.

Reversed and remanded with directions.

STOUDER, P.J., and BARRY, J., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    MARY LOUISE MATAYKA, Plaintiff-Appellant, v. AUGUSTINE MELIA, Indiv. and d/b/a Titus Construction Company, Defendant-Appellee.
    First District (4th Division)
    No. 82—2777
    Opinion filed November 10, 1983.
    Charles G. Murphy and David G. Duggan, both of Chicago, for appellant.
    Daniel A. Riley, of Riley, Riley and Riley, of Hickory Hills, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Mary Louise Matayka, appeals from an order of the circuit court which dismissed her complaint against defendant, Augustine Melia and his construction company. The issues raised on appeal are (1) whether plaintiff’s action was brought within a reasonable time after enactment of section 13 — 214 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214), which shortened the statutory period within which plaintiff could bring suit, and (2) whether section 13 — 214 of the Code of Civil Procedure violates the Illinois and United States constitutions.

We affirm.

The facts are not in dispute. On July 28, 1978, plaintiff and defendant Melia signed a real estate contract for plaintiff to purchase a single-family home which was being built by defendant’s construction company. On December 7, 1978, the parties signed the final documents and executed the real estate closing. The final agreement included a rider to the original contract. The rider specified that defendant would make certain repairs and additions and correct certain defects in the house. It was expressly provided that defendant was to perform the work within 90 days of the date of closing, with some allowance made for delays due to bad weather. Plaintiff moved into the house shortly after the closing and demanded that defendant perform his obligations under the December 7, 1978, agreement. After several unsuccessful demands by plaintiff, a written demand was made upon defendant by plaintiff’s attorney in July 1979. That correspondence is not a part of the record on appeal.

On November 19, 1980, defendant was advised in writing by plaintiff’s attorney that unless he acted to begin performance of his obligation within seven days plaintiff would pursue her rights in “another manner.” There is no indication that defendant responded to the letter and he did not perform.

There is no indication of any further communication between the parties and no action was taken until June 11, 1982, when plaintiff filed a four-count complaint. Count I alleged breach of a written contract; count II alleged negligence in constructing the house; count III alleged breach of express warranty; and count IV alleged breach of implied warranty of habitability.

Prior to plaintiff’s complaint of June 11, 1982, the Illinois General Assembly enacted section 13 — 214 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214). That statute read as follows:

“Construction - Design management and supervision. As used in this Section ‘person’ means any individual, any business or legal entity, or body politic.
(a) Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 2 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission.
(b) No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 12 years have elapsed from the time of such act or omission. However, any person who discovers such act or omission prior to expiration of 12 years from the time of such act or omission shall in no event have less than 2 years to bring an action as provided in subsection (a).
(c) If a person otherwise entitled to bring an action could not have brought such action within the limitation periods herein solely because such person was under the age of 18 years, or developmentally disabled, or mentally ill, or imprisoned on criminal charges, the limitation periods herein shall not begin to run until the disability is removed.
(d) Subsection (b) shall not prohibit any action against a defendant who has expressly warranted or promised the improvement to real property for a longer period from being brought within that period.
(e) The limitations of this Section shall apply to all acts or omissions which occur on or after November 29,1979.
(f) The limitations of this Section shall not apply to causes of actions arising out of fraudulent misrepresentations or to fraudulent concealment of causes of action.”

The effect of the statute was to create a two-year limitation period for actions arising out of improvements to real property. On September 16,1981, the statute was amended to delete paragraph (e).

The parties stipulated that prior to the enactment of section 13— 214 of the Code of Civil Procedure the statute of limitations for actions arising out of a breach of a written contract was 10 years; for action in negligence, two years; and for a breach of implied warranty of habitability, five years. Plaintiff conceded that count II of her complaint alleging negligence was barred by the statute of limitation prior to filing of the complaint.

Defendant filed a motion to dismiss plaintiff’s complaint, asserting the statute of limitations as a defense. The parties advised the court that the case presented an issue of first impression under the newly enacted statute. Written memoranda were submitted and the parties made oral arguments before the court made its ruling.

On November 3, 1982, the trial court granted defendant’s motion to dismiss plaintiff’s complaint and this appeal followed.

Plaintiff argues that her cause of action was not barred by the statute of limitations because it was brought within a reasonable time after enactment of section 13 — 214 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214). She cites Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill. 2d 161, 380 N.E.2d 782, as support for her argument. We do not agree with plaintiff’s argument.

Arnold Engineering dealt with the statutory time limit for filing a • workers’ compensation claim. In that case, our supreme court reaffirmed the rule that no one has a vested right in a statute of limitation prior to its lapse and where a limitation period has not expired prior to amendment, the amendatory act controls all actions and remedies not previously barred. (72 Ill. 2d 161, 165.) The court noted that no prejudice resulted from an amendatory act where the party had a reasonable time after amendment in which to file his action. (72 Ill. 2d 161, 165.) In the instant case, the fundamental questions are whether the plaintiff had a reasonable time in which to file her claim and, if so, did she file within a reasonable time.

Plaintiff knew of the defects on December 7, 1978. Her attorney contacted defendant on July 9, 1979, seeking to force performance. The record does not contain a copy of the correspondence nor is there any indication that any further correspondence took place between the parties until November 19, 1980. On that date, plaintiff’s attorney wrote to defendant seeking performance and threatened to pursue his client’s rights in “another manner” if defendant did not respond within one week. Thus, it seems at that point plaintiff was put on notice that defendant might not perform willingly and that legal action might be necessary.

The record reflects no response from defendant within one week or at anytime (until after the suit was filed). Yet, plaintiff did nothing until June 11, 1982, when she filed suit — a time span of nearly two years.

It was during that hiatus between the letter of November 19, 1980, and the filing of the suit, that the legislature amended the statute to omit subsection (e). This was done on September 16, 1981. The effect of the legislature’s action was to extinguish plaintiff’s claim.

However, plaintiff could still have salvaged her claim if she had acted within a reasonable time. See Orlicki v. McCarthy (1954), 4 Ill. 2d 342,122 N.E.2d 513.

Plaintiff’s claim was not filed until June 11, 1982, almost nine months after the amendment of the statute. We find that under the facts presented here, specifically, the plaintiff’s long standing knowledge of the defects and defendant’s obvious unwillingness to perform, plaintiff did not timely file suit, and under the statute she clearly had enough time to do so. Thus, the trial court did not err in dismissing plaintiff’s suit.

Plaintiff also contends that the statute in question (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214) is unconstitutional for two reasons: first, it violates the due process provisions of both the Federal and State constitutions; second, it is an unconstitutional grant of privilege by special legislation in contravention of the Illinois Constitution.

Plaintiff argues that section 13 — 214 of the Code of Civil Procedure is special legislation in that it provides specific categories of individuals in the construction industry with shortened exposure to liability. Plaintiff argues that the Illinois Constitution of 1870, article IV, section 22, forbids such legislation and that the legislature acted im-permissibly in enacting the statute.

Plaintiff cites Skinner v. Anderson (1967), 38 Ill. 2d 455, 231 N.E.2d 588, in which the Illinois Supreme Court held that a statute was invalid because it granted exclusive immunity to architects and contractors and was not reasonably related to any legislative purpose.

Our supreme court considered a similar question in Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560. The court upheld the constitutionality of a statute requiring all medical malpractice claims to be brought against a physician or hospital within two years of the time the plaintiff knew of or should have known of the injury. In no event could action be brought more than four years after the act or omission complained of.

In Anderson v. Wagner, the court said that the legislature may constitutionally classify groups and objects for the purpose of legislation and control as long as there is a reasonable basis for differentiating between that group to which the law applies and that to which it does not. (79 Ill. 2d 295, 317.) Furthermore, if the classification bears a reasonable relation to the purposes of the act and the evil it seeks to remedy, it does not violate the constitutional proscription on special or local laws.

We reject plaintiff’s argument that there is no link between the statute and permissible legislative purpose. Further, as discussed earlier, plaintiff’s due process rights were not violated because she did have a reasonable time in which to seek judicial resolution of the matter.

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

Affirmed.

ROMITI, P.J., and JIGANTI, J., concur.


author: JUSTICE KARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. JEFFREY BURKE CRANFORD et al., Defendants-(Grow Group, Inc., Cross-Plaintiff Appellee, v. Jeffrey Burke Cranford et al., Cross-Defendant-Appellants).
    Fifth District
    No. 82—598
    Opinion filed September 30, 1983.
    Fred Prillaman, of Mohan, Alewelt and Prillaman, of Springfield, for appellants.
    Marvin W. Goldenhersh, of Goldenhersh and Goldenhersh, P.C., of Bel-leville, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

Petitioners Jeffrey Burke Cranford and Environmental Waste Services, Inc. (EWSI) d/b/a Environmental Systems, appeal from the judgment of the circuit court of St. Clair County awarding $145,460.06 in damages to the respondent, Grow Group, Inc. (Grow Group) on Grow Group’s “Motion that Pleadings of Certain Defendants Be Stricken and Motion for Judgment Against Said Defendants” which incorporated Grow Group’s cross-complaint alleging breach of contract and fraud. Judgment was entered after a trial at which only Grow Group was present.

This dispute is a sequel to an action by the State of Illinois in which all parties to this appeal were defendants charged with violating the Illinois Environmental Protection Act by improperly disposing of industrial wastes in East St. Louis and Belleville, Illinois. Under the consent decree which resolved the State’s suit, Cranford and EWSI d/b/a Environmental Systems were -to remove and dispose of all illegally dumped wastes except those belonging to Grow Group and another codefendant. By stipulation, Grow Group denied knowledge of the improper handling of its wastes but agreed to remove all its waste materials as well as contaminated soil and water from the dump sites. On July .21, 1981, the court found that the terms of the consent decree had been met.

In a cross-complaint filed on October 9, 1980, Grow Group sought to recover from Cranford and EWSI $150,000 for payments to Environmental Systems for proper transport and disposal of paint wastes in Tennessee as well as for Grow Group’s expenses in cleaning up the dump sites in Belleville and East St. Louis. In count I of the cross-complaint, Grow Group alleged that both the EWSI and Cranford had breached an oral agreement to “transport the waste material to an incinerator disposal facility in Memphis, Tennessee, and to dispose of the waste material in compliance with all applicable provisions of Environmental Protection Agency (E.P.A.) statutes, rules and regulations, both federal and state.” Grow Group further alleged that the cross-defendants arranged for the wastes to be illegally deposited in Illinois. In count II, Grow Group sought recovery from Cranford individually because he “knew or should have known that said waste material was not being brought to *** Tennessee for disposal legally *** [but] he continued fraudulently and under false pretenses *** to cause invoices to be sent to the Cross-Plaintiff and *** to cause the Cross-Plaintiff to forward checks in payment of said invoices ***.” Count III asked punitive damages for Cranford’s fraud. Count IV sought recovery from Edmund Edward Raines II, not a party to the present appeal, whom Cranford was alleged to have hired to haul the illegally deposited waste.

In support of Grow Group’s allegations, it filed an affidavit by its counsel and assistant secretary in which he stated that Cranford d/b/a Environmental Systems had disposed of waste for Grow Group’s Illinois and St. Louis divisions. Documentary exhibits were filed to substantiate the assertions in the affidavits. Copies of invoices showed “jbc” as the salesman who took the orders for disposal and, in several cases, showed that shipment was by “Raines” or “Raines Cartage.” Checks made out to Environmental Systems indicated they were deposited to the account of Environmental Systems in Memphis, Tennessee, banks.

On December 9, 1980, Grow Group notified Cranford and EWSI of its intention to conduct a discovery deposition of Cranford immediately after a hearing on December 19, 1980. At that hearing the court, ruling on a series of motions by the appellants, ruled Cran-ford’s special and limited appearance a general appearance, ordered both EWSI and Cranford to answer and plead to the cross-complaint, and granted Cranford’s motion to quash the notice for the deposition scheduled immediately after the hearing. Cranford was ordered, however, to appear for a deposition on January 23, 1981, with all of his records relevant to payments for disposal of Grow Group’s wastes. In a letter to Grow Group’s attorney, Cranford’s attorney stated his belief that in light of a Federal grand jury inquiry, Cranford would appear at the January 23 deposition but would not “answer any questions posed to him, the answer to which may tend to incriminate him.” During the deposition on January 23, Cranford produced the records requested but answered only questions relating to his name and address, otherwise asserting his fifth amendment rights. After the deposition on January 23, 1981, neither party made any further efforts at discovery. Grow Group did not ask the court to compel Cran-ford to answer the questions propounded at the deposition nor did Grow Group complain that the records produced at the deposition were unsatisfactory in any way.

On August 26, 1982, Grow Group filed its “Motion That Pleadings of Certain Defendants Be Stricken and Motion for Judgment Against Said Defendants.” The motion incorporated by reference the cross-complaint which had been answered by EWSI and Cranford, both denying that Cranford had done business as Environmental Systems as well as all other material allegations. In addition, Grow Group’s motion stated that Cranford’s refusal to answer questions at the January 23, 1981, deposition “constitute[d] a substantial and material detriment to the availability of evidence in support” of Grow Group’s claims. Grow Group’s attorney attached his affidavit in support of the validity of the damages stated in the motion. Grow Group asked that “the pleadings of *** defendants be stricken, that a default be entered against *** defendants and that a judgment be entered in favor of” Grow Group in the amount of $145,460.06.

Cranford was notified that the hearing on Grow Group’s motion was set for September 8, 1982, at 10 a.m. In amending the record on appeal, the parties stipulated that counsel for both sides had talked by telephone on September 7, at which time Cranford’s attorney said he could not be present for the September 8 hearing and that he was sending his written objection with supporting affidavit by Federal Express to the presiding judge. The objection asked that Grow Group’s motion be struck, characterizing it as “untimely and improper” under Supreme Court Rules relating to discovery because Grow Group had failed to ask the court to compel Cranford to answer the questions propounded at the January 23, 1981, deposition and had failed to show that Grow Group made any effort to resolve differences over discovery. The objection described the portion of Grow Group’s motion which specified the damages as based on hearsay and conclusions “without documentary support, without adequate foundation, and without legal support ***.” Describing the relief sought by Grow Group as that “obtainable only under Section 2 — 1005 of the Code of Civil Procedure (Summary Judgment),” Cranford objected that the affidavit in support of Grow Group’s motion was insufficient under Supreme Court Rule 191 (87 Ill. 2d R. 191) in that it was not based on personal knowledge and lacked both factual and documentary support for its conclusions.

At 10 a.m. on September 8, 1982, Grow Group’s attorney presented his motion. He informed the court of the attorneys’ telephone conversation and Cranford’s written objection which had been mailed the day before. Proceeding with the hearing as scheduled, the court found that the “said defendants obtained money from the plaintiff by false pretenses, false representations, and actual fraud.” The record is silent as to the nature or extent of evidence presented to the trial court. It does not reveal that any pleading was stricken or that a default was entered against Cranford or EWSI. At approximately 10:15 a.m., judgment was entered in favor of Grow Group and against “Cranford, individually and d/b/a Environmental Systems and Environmental Waste Systems [sic], Inc.” in the amount of $145,460.06. The parties agree that Cranford’s written objection and accompanying affidavit arrived at the courthouse at approximately 10:41 a.m.

Appellants now ask us to decide whether: (1) it was error for the trial court to enter judgment against Cranford and EWSI for alleged noncompliance with discovery rules where Grow Group did not show an effort to reach an accommodation as to discovery; (2) it was an abuse of discretion for the trial court to enter judgment for $145,460.06 as a sanction where the only noncompliance was Cran-ford’s assertion of his Fifth Amendment privilege against self-incrimination; (3) appellants are entitled to a trial on the issue of damages.

Appellants have mistaken the nature of the judgment entered against them. It is not a sanction for noncompliance with discovery rules. Supreme Court Rule 219(c) (87 Ill. 2d R. 219(c)) provides that a trial court which finds unreasonable refusal or failure to comply with discovery relating to any issue may

“(v) *** as to claims or defenses asserted in any pleading to which that issue is material, [enter] a judgment by default *** or
(vi) *** [strike] any portion of his pleadings relating to that issue *** and, if thereby made appropriate, judgment be entered as to that issue.” (87 Ill. 2d R. 219(c).)

While it is true that Grow Group’s motion prayed that defendants’ pleadings be stricken, a default entered, and judgment entered in favor of Grow Group, and the motion alleged that Cranford’s noncompliance was detrimental to Grow Group’s presentation of its case, appellants admit that no pleading was stricken and no finding of default was made. Instead, the face of the judgment makes clear that the court considered the merits of the allegations set forth in the original complaint and incorporated in the later motion. The court found “that as alleged in the Cross-Complaint herein, said defendant obtained money from the plaintiff by false pretenses, false misrepresentations, and actual fraud.” Although the appellants, having previously appeared and answered the complaint, did not appear at trial to contest the matter, they were entitled to have the factual issues decided by the court after hearing argument by the cross-plaintiff-appellee. (In re Marriage of Garde (1983), 118 Ill. App. 3d 303; Dils v. City of Chicago (1978), 62 Ill. App. 3d 474, 378 N.E.2d 1130; Koenig v. Nardello (1968), 99 Ill. App. 2d 480, 241 N.E.2d 567.) We think the trial court properly entered an ex parte judgment on the merits after hearing Grow Group’s evidence.

Cranford quarrels with both the nature and sufficiency of the evidence on which the judgment was based. He argues that the judgment was entered over his objections to the conclusory nature of Grow Group’s affidavit. This cannot be so unless we are to speculate that Grow Group’s attorney argued Cranford’s objections. There is nothing in the record before us to show that Cranford’s attorney presented his objections directly to the trial court before the hearing. The parties have stipulated that on September 8

“Mr. Goldenhersh [Grow Group’s attorney] told Judge O’Donnell of the conversation he had had the previous day with Mr. Prillaman [Cranford’s attorney], and that Prillaman had told him that Defendants’ written Objections to the pending Motion had been mailed the previous day. Defendants’ written Objection did not arrive in Judge O’Donnell’s chambers, however, until after Judge O’Donnell had entered his order of September 8, 1982.”

To resolve questions concerning the evidence considered by the trial court, we must turn to a record of the trial proceedings. We have been provided with no such record except the judgment itself. We concur with appellants’ statement that “in the absence of any report of proceedings, it is presumed that the Trial Court heard adequate evidence to support its decision, unless there is a contrary indication in the Order.” We do not agree, however, that silence as to what evidence was heard means no evidence was heard and that the trial court must therefore have relied on Grow Group’s affidavit, which appellants consider insufficient to support the judgment. We need not decide the sufficiency of the affidavit because where, as in the present case, the judgment states that the trial court was “fully advised in the premises,” the reviewing court must presume that the trial court “heard adequate evidence, received enough information or listened to sufficient law and argument, as the necessity of the particular case required, to enable the court to reach what it believed to be the right decision on the issue presented.” (Smith v. Smith (1962), 36 Ill. App. 2d 55, 59, 183 N.E.2d 559, 561.) It is further presumed that a trial court sitting without a jury has heard only competent evidence. Chicago City Bank & Trust Co. v. Ceres Terminals, Inc. (1981), 93 Ill. App. 3d 623, 417 N.E.2d 798; People ex rel. Hartshorn v. Hartshorn (1959), 21 Ill. App. 2d 91,157 N.E.2d 563.

If the appellants wish to challenge the evidence on which the court based its judgment, they must shoulder the burden of providing the reviewing court "with a sufficient factual record of the trial proceedings. (Teitelbaum v. Reliable Welding Co. (1982), 106 Ill. App. 3d 651, 435 N.E.2d 852; Mangiamele v. Terrana (1976), 42 Ill. App. 3d 305, 355 N.E.2d 765.) Any doubts inspired by the incompleteness of the trial record will be resolved against the appellants. Reed v. Hoffman (1977), 48 Ill. App. 3d 815, 363 N.E.2d 140.

In the absence of a record of the evidence upon which the court based its judgment, we must accept that judgment as correct.

Affirmed.

JONES and KASSERMAN, JJ., concur.


author: JUSTICE LINN

text:
    EQUITY GENERAL INSURANCE COMPANY, Plaintiff-Appellee, v. ROBERT PATIS, d/b/a Robert Patis General Insurance Agency, Defendant-Appellant.
    First District (4th Division)
    No. 82—2774
    Opinion filed November 10, 1983.

      Craig Cooper, of Chicago, for appellant.
    Daniel J. Pope, David L. Carden, and Michael D. McCormick, all of Cof-field, Ungaretti, Harris & Slavin, of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Robert Patis, appeals from the trial court’s order granting the motion for summary judgment brought by plaintiff, Equity General Insurance Company (Equity). Equity, defendant’s professional liability insurer, sought a declaration of no coverage under an errors and omissions policy on a malpractice claim filed against Patis, its insured. The trial court found that Patis failed to satisfy a condition precedent to coverage and that no genuine issue of material fact existed.

Defendant’s sole contention on appeal is that the trial court granted summary judgment based on speculation outside the record. We disagree and affirm the decision of the trial court.

Facts

Robert Patis, an experienced insurance agent, was insured for malpractice under an errors and omissions policy with Equity, his professional liability insurer. In December 1979, Robert and Margaret Fanella requested Patis to secure fire insurance coverage for a building they owned and managed. Existing coverage on the building was due to expire on January 31, 1980. Patis was able to place half of the $130,000 requested coverage with West Bend Mutual Insurance Company (West Bend). On January 28, 1980, Patis sent an order to Insurance Central, Ltd., seeking to obtain the remaining $65,000 coverage. The coverage was never obtained.

On February 19, 1980, Patis received a telephone call from Insurance Central informing him that an insurance inspector had gone to the Fanella property pursuant to preparation for issuing a policy and found a smoldering pile of debris. The Fanella’s building was totally destroyed by fire on February 18, 1980. The only insurance in effect on the date of the fire was the $65,000 half coverage under the West Bend policy and a contents policy written by Home Insurance. Upon learning of the fire, Patis did not notify either the Fanellas or Equity of the $65,000 undercoverage.

The day after the fire, the Fanellas hired a public adjuster to investigate their claim for fire loss. The adjuster assisted West Bend and Home Insurance in the investigation and adjustment of the claim. Equity did not take part in the investigation and adjustment by the other insurance companies because Patis persisted in his failure to notify Equity of either the fire or the potential malpractice claim by the Fanellas.

During the investigation of the fire loss by West Bend and Home Insurance, the Fanellas retained counsel. Upon request of the Fanel-las’ attorney, Patis turned over his entire file to the attorney. At the time he so cooperated with Fanella’s attorney, Patis had neither notified Equity of the claim nor requested Equity’s consent to such cooperation or to any waiver of its right to counsel.

On April 14, 1980, Equity, still unadvised of the Fanellas’ claim, cancelled Patis’ malpractice insurance due to an excessive number of negligence claims that had been brought against him. On June 30, 1980, the Fanellas filed suit against Patis for professional malpractice. On July 10, 1980, nearly five months after the Fanellas property had burned to the ground, Patis notified Equity of the Fanellas’ claim and tendered to it his defense under the malpractice policy. Equity accepted the tender under a reservation of rights.

Equity inquired of Patis as to when the Fanellas first made a claim against him, a fact Patis had omitted from his preliminary loss report. Patis’ response was “the date of the suit,” an ambiguous reference either to the date of filing, June 30, 1980, or to the date of service of process, July 8, 1980, both of which had occurred after the cancellation of Patis’ malpractice insurance. Because the errors and omissions policy covered only those claims made during the policy period, Equity denied coverage.

Upon learning of Equity’s basis for denial, Patis wrote Equity in an attempt to resolve favorably the earlier ambiguity as to the date of the claim. In his letter, Patis stated that he knew of the possible claim by the Fanellas on the date of the fire. This information did not alter Equity’s position. Equity informed Patis that his unreasonable and inexcusable failure to give notice of the claim until many months after he knew of it violated a condition precedent to coverage. Patis failed to undertake his own defense in the suit brought by the Fanellas, and Equity filed suit seeking a declaration of no coverage under Patis’ now-expired errors and omissions policy. A motion for summary judgment followed.

In its summary judgment motion, Equity argued that it was an undisputed fact that the policy required Patis to give notice “as soon as practicable” as a condition precedent to coverage. Equity maintained that Patis’ delay of nearly five months in giving notice could not reasonably be construed as “as soon as practicable.” Patis, on the other hand, contended that the reasonableness of notice and the extent to which Equity was prejudiced by his delay were disputed issues of material fact and that, consequently, the entry of summary judgment in favor of Equity was legally improper.

On October 13, 1982, the trial court granted Equity’s motion for summary judgment, finding that Patis failed to give notice “as soon as practicable” as required under the errors and omissions policy. The court held that the notice provision was clear and unambiguous and that satisfaction of the requirement was a condition precedent to coverage. The court found that Patis was experienced “in the ways of insurance” and noted that he offered no justification for his unreasonable delay in notifying Equity.

Turning to the effect of Patis’ delay in giving notice, the trial court concluded that Equity was “severely and substantially prejudiced” by its inability to participate in the investigation and adjustment of the Fanellas’ fire loss claim. The court further agreed with Patis’ own deposition testimony in which he admitted he had been negligent. Finding that there was no genuine issue of material fact and that Equity was entitled to judgment as a matter of law, the court granted Equity’s motion for summary judgment. Patis now appeals.

Opinion

Patis presents a single argument in his appeal from the trial court’s order granting Equity’s summary judgment motion. As his legal premise, Patis posits that before an insured’s delay in notifying its insurer may serve as a basis for extinguishing the insurer’s liability, the insurance company must show that it was prejudiced by the delay. Applying this principle to the facts of the instant case, Patis contends that the trial court’s determination that Equity was prejudiced by the delayed notice of the Fanellas’ claim was based on speculation outside the record. Patis contends that the record presented a genuine issue of material fact as to whether Equity was prejudiced. We find Patis’ argument to be both legally and factually without merit.

Patis begins his argument by setting forth the proper standard for summary judgment. Summary judgment will lie only where there exists no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c).) Following this accurate statement of the law, Patis reaches the misguided conclusion that “it is well settled” that whether or not an insurer is prejudiced by an insured’s late notice of a claim is an issue of material fact. It is with this conclusion he goes awry.

The existence of factual questions will not preclude summary judgment unless these facts are material to the litigation. (Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 575, 442 N.E.2d 648, 654.) Facts unrelated to the essential elements of the plaintiff’s cause of action are immaterial, and no matter how sharply controverted, their presence in the record will not warrant denial of a motion for summary judgment. Whether there is any material issue to present to the trier of fact is, in the first instance, a question of law to be determined by the court. Alexander v. Standard Oil Co. (1981), 97 Ill. App. 3d 809, 814, 423 N.E.2d 578, 582.

Despite Patis’ contention as to “well-settled” Illinois law, the prevailing legal standard as consistently applied by this district and enunciated by our supreme court is quite the contrary. While prejudice may be a factor in determining the question of whether an insured has given reasonable notice to its insurer, it is not a condition that will dispense with the requirement. (Simmon v. Iowa Mutual Casualty Co. (1954), 3 Ill. 2d 318, 322, 121 N.E.2d 509, 511.) Where, as here, the giving of notice has specifically been made a condition precedent to a right of action against the insurer, any prejudice resulting from a delay in giving notice becomes immaterial. City of Chicago v. United States Fire Insurance Co. (1970), 124 Ill. App. 2d 340, 348, 260 N.E.2d 276, 280.

In the instant case, the errors and omissions policy written by Equity contained a provision that required Patis to give notice of any claim “as soon as practicable” as a condition precedent to coverage. The trial court found that the notice provision was clear and unambiguous. Where provisions of an insurance contract are clear and unambiguous and neither illegal nor against public policy, they are to be enforced by the courts. (Sowinski v. Ramey (1976), 36 Ill. App. 3d 690, 694,344 N.E.2d 635, 638.) In the presence of this provision, any prejudice to Equity resulting from Patis’ delay in giving notice is immaterial and therefore will not warrant denial of Equity’s motion for summary judgment.

Where, as here, an “as soon as practicable” notice provision is present in the insurance contract, the issue becomes not whether the insurer has been prejudiced but rather whether reasonable notice has been given. (United States Fidelity & Guaranty Co. v. Maren Engineering Corp. (1980), 82 Ill. App. 3d 894, 898, 403 N.E.2d 508, 511.)

“The general rule in Illinois is that where an insured has the duty under his insurance policy to notify his insurer *** ‘as soon as practicable,’ notice must be given to the insurer within a reasonable time, and whether notice was given within a reasonable time is dependent upon all the facts and circumstances of the case.” Sowinski v. Ramey (1976), 36 Ill. App. 3d 690, 694, 344 N.E.2d 635, 638.

In the case at bar, the undisputed facts in the record disclose that on February 19, 1980, Patis received a telephone call from Insurance Central informing him of the fire loss on the Fanellas’ property. Patis admitted, in his revised response to Equity, that he knew of the possible claim by the Fanellas on the date of the fire. Patis knew as well of the $65,000 undercoverage on the same date. He failed to notify Equity of either of these facts. The record also discloses the uncontested facts that an investigation and adjustment of the claim by two other insurance companies ensued the day after the fire and that Equity was unable to take part in this investigation and adjustment because it had not been notified of the claim.

The purpose of a requirement in an insurance policy that the insured send notice “as soon as practicable” is to enable the insurer to make a timely and thorough investigation of the claim and to protect itself against unjustifiable claims. (United States Fidelity & Guaranty Co. v. Maren Engineering Corp. (1980), 82 Ill. App. 3d 894, 898, 403 N.E.2d 508, 511.) In determining whether notice was given in a reasonable time, the trial court considered that Equity was severely and substantially prejudiced by its inability to investigate and participate in the adjustment of the fire loss. The court further noted that Patis was an experienced insurance agent and that if he had given notice anytime within the policy period, it is likely Equity would have afforded coverage. Finally, the trial court affirmed Patis’ own conclusion that he was negligent in the handling of the matter.

Based on the undisputed material facts and circumstances contained in the record before it, the trial court determined that Patis’ delay of nearly 41/2 months in notifying Equity of the Fanellas’ fire loss claim was unreasonable and therefore not “as soon as practicable” as required by the insurance contract. Finding that the notice requirement was a condition precedent to coverage and that Patis failed to satisfy this condition, the court held that Equity had properly denied coverage on the malpractice claim brought by the Fanellas against Patis. Finding further that no genuine issue of material fact existed and that Equity was entitled to judgment as a matter of law, the trial court granted Equity’s motion for summary judgment.

The record fails to reveal the existence of any genuine issue of material fact and offers ample support for the trial court’s decision. For these reasons, we affirm.

Affirmed.

ROMITI, P.J., and JOHNSON, J., concur.


author: JUSTICE GREEN

text:
    CORN BELT BANK, Plaintiff, v. LINCOLN SAVINGS AND LOAN ASSOCIATION et al., Defendants — (Lincoln Savings and Loan Association, Third-Party Plaintiff-Appellee, v. Robert B. Darley et al., Third-Party Defendants-Appellants). — AMERICAN STATE BANK OF BLOOMINGTON, ILLINOIS, Plaintiff, v. LINCOLN SAVINGS AND LOAN ASSOCIATION et al., Defendants — (Corn Belt Bank, Plaintiff-Appellee, v. Lincoln Savings and Loan Association, Defendant-Appellant; Barney Leon Schultz et al., Defendants).
    Fourth District
    Nos. 4—83—0039, 4—83—0057 cons.
    Opinion filed September 15, 1983.
    Modified on denial of rehearing November 30,1983.

      George L. Chesley, of DePew, Grimes, Chesley & Wilson, and G. Michael Prall, of Yoder, Yoder, Flynn, Prall & Willard, both of Bloomington, for appellants Robert B. Darley and Alfred J. Frisch in No. 4 — 83—0039.
    William R. Brandt and Richard E. Stites, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellant Lincoln Savings and Loan Association in No. 4 — 83—0057 and appellee in No. 4 — 83—0039.
    Alan L. Sternberg and James T. Finegan, both of Pratt, Sternberg & Finegan, P.C., of Bloomington, for appellee Corn Belt Bank in No. 4 — 83— 0057.
   JUSTICE GREEN

delivered the opinion of the court:

These consolidated cases arose from suits filed by certain Bloomington banks against the makers of various promissory notes and against defendant, Lincoln Savings and Loan Association (Lincoln) and its individual directors. This appeal concerns recovery sought by plaintiff, Corn Belt Bank, against Lincoln as a guarantor of certain loans made by plaintiff to defendants, Barney and Joan Schultz, and Donald and Beverly Sizelove. Also in issue are third-party complaints by Lincoln against third-party defendants, Robert B. Darley and Alfred J. Frisch, officers of Lincoln who were alleged to have made the claimed guaranties on behalf of Lincoln, but without authority to do so. The third-party complaints sought indemnity for the allegedly unauthorized acts of making the guaranties. The purported guaranties were contained in letters written by Darley or Frisch to plaintiff.

Plaintiff’s original complaint was filed on July 1, 1977. On July 13, 1982, and July 20, 1982, respectively, the circuit court entered summary judgments in favor of plaintiff and against Lincoln in the sums of $50,000 and $125,000 on the notes representing the Schultz loans. After a bench trial on the merits that court entered judgments on November 18, 1982, in favor of plaintiff and against Lincoln in the sums of $114,969.65 and $88,000 on the notes representing the Sizelove loans. On that same day, the court entered judgments for indemnity against Darley and Frisch in the respective total sums of $387,450.02 and $50,000. In doing so the trial court granted summary judgment to Lincoln and against Darley as to an affirmative defense alleged by Darley. On January 12, 1983, the court also gave judgment to Lincoln and against Darley and Frisch in respective sums of $38,436.49 and $23,067.58 to reimburse Lincoln for attorney fees it had expended in defending the litigation brought by plaintiff.

Lincoln has appealed the judgments entered in favor of plaintiff and against it. Third-party defendants Darley and Frisch appeal the judgments for indemnity, including attorney fees, entered in favor of Lincoln.

Lincoln maintains that the summary judgment entered against it with reference to the Schultz notes should be reversed because a genuine issue of fact existed as to whether (1) Darley or Frisch had apparent authority to guaranty those loans, and (2) any liability of Lincoln was defeated by implied conditions of the documents purporting to be guaranties. Lincoln also asserts that the court erred in entering judgments against it on the Sizelove notes because: (1) The court prevented Lincoln from introducing evidence as to Darley and Frisch’s lack of apparent authority to make guaranties; (2) plaintiff’s conduct released Lincoln as a guarantor; and (3) Lincoln received no consideration for the alleged guaranties.

Darley and Frisch maintain that the trial court erred in finding against them in the indemnity actions because the evidence showed as a matter of law that: (1) They had express or implied authority to make guaranties of the loans in question; and (2) their conduct was, at least impliedly, ratified by Lincoln. They also contend that: (1) Lincoln failed to prove damages against them; (2) error occurred in rulings on evidence; and (3) the court erred in (a) allowing Lincoln to amend its complaint to request indemnity for attorney fees, and (b) allowing the fees.

We hold that the trial court erred in granting plaintiff summary judgment against Lincoln as to the Schultz’ notes. As we subsequently explain, because of that ruling we must reverse the judgment in favor of plaintiff and against Lincoln on the Sizelove notes and remand to the trial court for further proceedings as to all of the relief sought by plaintiff against Lincoln. Because of the foregoing rulings, any judgment for indemnity would be contingent upon recovery by plaintiff against Lincoln. We contingently affirm the judgments for indemnity but we reverse the portions of those judgments awarding damages and also remand to the trial court for a new hearing as to damages. We reverse the award of attorney fees but direct that on remand, such attorney fees be awarded to Lincoln as it is then entitled under the evidence.

This case is quite complex, particularly from a factual standpoint. We recognize the effort put forth by court and counsel in grappling with these complexities and regret the necessity to require additional proceedings. In order to shorten those proceedings as much as possible, we will pass upon questions raised which may not be necessary to our decision. We suggest that at retrial the parties may be able to stipulate to the use of certain evidence already taken.

SUMMARY JUDGMENT ON THE SCHULTZ NOTES

We turn first to the important question of the propriety of the summary judgment in favor of plaintiff on the Schultz notes. In order for the judgment to stand, the evidence before the court must have been such that, had it existed at a jury trial, the court would have been required to direct a verdict in favor of plaintiff. Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497.

Under the pleadings, a crucial element that plaintiff was required to prove was that, in guarantying the Schultz notes, Darley and Frisch had apparent authority to do so on behalf of Lincoln. An agent has such authority to bind the principal when the principal has permitted the agent to assume such authority or held the agent out to the public as possessing such power. (Lynch v. Board of Education (1980), 82 Ill. 2d 415, 412 N.E.2d 447.) The conduct of the principal, whether it consists of affirmative action or of acquiescence, is a necessary element in the creation of apparent authority.

The record before the court at the time it granted summary judgment did show that Lincoln had given Darley and Frisch great discretion in the manner in which they did business at Lincoln’s Bloomington branch where the loans in question were made. Lincoln had its original place of business in the city of Lincoln. Darley had been Lincoln’s executive vice-president and chief executive officer since 1954. Frisch had been a vice-president under Darley’s supervision during all times in question. Apparently, one of their practices was for them to make real estate loans and then report afterwards to the appropriate Lincoln loan committee. This committee apparently seldom disapproved of their actions. The two had been granted express authority from Lincoln’s board of directors to borrow money from plaintiff.

One of Lincoln’s directors had testified in a deposition that Darley “did pretty much [as] he wanted to” concerning the operations at Lincoln’s Bloomington branch. Lincoln’s secretary-treasurer had similarly testified that “[w]hen Darley spoke, it was Lincoln Savings and Loan Association speaking.” The record was clear that, as far as the ordinary operations of the Bloomington branch was concerned, Darley and Frisch had apparent authority to bind Lincoln.

The question of whether the showing of the apparent authority possessed by Darley and Frisch in the foregoing matters conclusively proved that they had apparent authority to make guaranties of loans on behalf of Lincoln is a more complex problem.

Lincoln asserts that it had no power to make guaranties. It was organized and operated under the Illinois Savings and Loan Act (Ill. Rev. Stat. 1977, ch. 32, par. 701 et seq., now Ill. Rev. Stat. 1981, ch. 17, par. 3001 et seq.). Article 5 of the Act (Ill. Rev. Stat. 1977, ch. 32, pars. 791 through 806) defines with particularity the power of associations operating under the Act to make investments. Article 5 allows associations to make loans, but the Act does not confer the express power to associations to guaranty loans. However, section 1 — 8 of the Act (Ill. Rev. Stat. 1977, ch. 32, par. 708) provides that such an association “shall have any power conferred on a corporation by the Business Corporation Act [Ill. Rev. Stat. 1977, ch. 32, par. 157.1 et seq.] and any power not prohibited by law, which is reasonably incident to the accomplishment of the express powers” granted by the Illinois Savings and Loan Act. (Emphasis added.) The Business Corporation Act gives no express power to a corporation to guaranty loans. Accordingly, the question of Lincoln’s power to have guarantied the loans here depends upon whether such guaranties were incidental to the powers expressly granted to it to make loans, etc.

Apparently, Lincoln is not raising its alleged lack of authority to guaranty the notes as a complete bar to plaintiff’s action. We cannot find anywhere in the record that the affirmative defense of ultra vires was raised by the pleadings. (See 71 C.J.S. Pleading sec. 529(b) (1951).) A business corporation is precluded by statute from raising the issue of ultra vires except in a suit (1) by a shareholder, (2) by the corporation against an officer, or (3) by the State seeking dissolution, unless the alleged ultra vires act is immoral, against public policy, or expressly prohibited by statute. (Ill. Rev. Stat. 1977, ch. 32, par. 157.8; American Heritage Investment Corp. v. Illinois National Bank (1979), 68 Ill. App. 3d 762, 386 N.E.2d 905.) The Illinois Savings and Loan Act is silent on the subject. We interpret Lincoln’s position to be that its power to make the guaranty is raised not as an absolute defense, but as a matter to consider in determining whether Barley and Frisch had apparent authority.

No case has been presented which passes upon the power of an association organized under the Illinois Savings and Loan Act to guaranty payment on a promissory note. The record here indicated that (1) the Schultzes had substantial indebtedness to Lincoln arising from their purchase and development of real estate, (2) the purpose of plaintiff’s loan to them was to enhance those ventures or, more accurately, to prevent their failure, and (3) Lincoln’s likelihood of recovery on the debt owed directly to it was enhanced thereby. Under the circumstances shown, guarantying payment of plaintiff’s loans to the Schultzes was “reasonably incident” to Lincoln’s power to make loans within the meaning of section 1 — 8 of the Illinois Savings and Loan Act. Therefore, the making of such guaranties was within Lincoln’s corporate power.

The mere fact that a corporation has power to make a certain type of contract does not, of itself, clothe even the highest officer of a corporation with apparent authority to bind the corporation to such a contract. Officers have no apparent authority to make unusual or extraordinary contracts on behalf of a corporation. Sacks v. Helene Curtis Industries, Inc. (1950), 340 Ill. App. 76, 91 N.E.2d 127.

The record before the court at the time it granted summary judgment to plaintiff on the Schultz notes contained little information as to whether savings and loan associations in this State regularly issue guaranties in the normal course of their business. There was some evidence that Barley and Frisch had made some purported guaranties upon behalf of Lincoln, but there was no evidence that Lincoln’s board of directors, as a group, knew of this activity. In fact, the evidence indicated that, under the reporting procedures used by Lincoln, the issuance of guaranties by an officer would not be revealed. The issuance of a guaranty would create a liability which their accounting scheme would not reveal. The question of whether Barley and Frisch had apparent authority to bind Lincoln to a guaranty under the circumstances shown was a question of material fact which should have been decided at a hearing on the merits after considering all of the circumstantial evidence. The record was not one which would have required a directed verdict for plaintiff if the proceeding had been a jury trial. (Fooden.) The entry of that summary judgment was reversible error.

Without the factual question of apparent authority, the summary judgment in favor of plaintiff would have been proper. The other issue in regard to the summary judgment concerns Lincoln’s contention that the alleged guaranty of the Schultz notes contained an implied condition not shown to have been met. The letters containing the guaranties were inartfully drafted, seemingly following the form of a commitment by a savings and loan association to a bank promising to make a long-term mortgage loan to borrowers conditioned upon the borrowers’ repayment of a short-term construction loan.

One of the conditions in question was contained in Barley’s letter of guaranty of the $125,000 Schultz loan. It stated in part: “you may be assured that we will pay [the principal of plaintiff’s loan to the Schultzes] back plus interest directly to you at the time our permanent mortgage is placed on record as to the above real estate.” The record showed that prior to the entry of summary judgment, a mortgage from the Schultzes to Lincoln had been placed on land understood by the parties to be that referred to in the guaranty letter. The letter did. not speak as to the quality of the mortgage. Its filing of record satisfied any condition of the letter. The court properly ruled that the condition had been met.

Barley’s letter to Lincoln in regard to the $50,000 loan to the Schultzes created more confusion. In the part which plaintiff contends to be a guaranty, the letter stated:

“[U]pon written notice from you of default by [the Schultzes] and the repayment of the proposed loan, we will immediately undertake the obligations of the proposed borrowers and fulfill the commitment of our guarantee and indemnification agreement.” (Emphasis added.)

The record contained no showing that the proposed loan had been repaid, but the reference in the letter to the default in the loan and then the repayment of the loan was either meaningless or contradictory. If the guaranty was activated only when the loan was repaid, there would be no liability to the guarantor except expenses of collection such as attorney fees. The language in question is ambiguous, requiring consideration of previous and contemporary transactions and facts. (Heifner v. Board of Education (1975), 32 Ill. App. 3d 83, 335 N.E.2d 600.) In interpreting an ambiguous document the court will attempt to give a construction to the document that does not create a nudum pactum. As the evidence of relevant facts and of contemporary and previous transactions was not in dispute, the interpretation of the letter was entirely a question of law. (Carlson v. Cremeens (1977), 49 Ill. App. 3d 742, 364 N.E.2d 114.) Accordingly, the issue could properly be resolved by a summary judgment. The trial court properly construed the letter to be a guaranty of a loan plaintiff was intending to make to the Schultzes. The prior dealings of plaintiff with Lincoln through Barley and the Schultzes so indicated. The circumstantial evidence indicated that neither repayment of the underlying loan nor any other loan was intended to be a condition of the guaranty. The trial court ruled correctly on the question of the possible conditions of the guaranty.

JUDGMENT ON THE SIZELOVE NOTES

Because of our reversal and award of a new trial to Lincoln as to the counts in which plaintiff sought recovery on the Schultz loans, we must also reverse and grant a new trial to Lincoln on the counts in which plaintiff sought recovery on the Sizelove notes. An integral part of the proof on these latter counts was proof that Barley and Frisch had apparent authority to guaranty those loans. The trial court ruled that issue to have been decided by its granting summary judgment on the counts concerning the Schultz notes. We need not decide whether the trial court’s theory in making the ruling was correct. Upon a reversal of the summary judgment, any use of the determination made in granting that judgment became improper.

Lincoln contends that the judgment for plaintiff on the Sizelove loans should be reversed without remand because any guaranty on those notes was discharged where (1) plaintiff took renewal notes from the Sizeloves for those guarantied, and (2) plaintiff released an assignment of a beneficial interest in a land trust which secured the guarantied note. The significant evidence in these matters was mostly undisputed.

Various guaranties by Barley, purportedly on behalf of Lincoln, all in substantially the same form, had been made for loans by plaintiff to the Sizeloves prior to December 1976. On December 21, 1976, Darley sent plaintiff letters purporting to guaranty notes of the Sizeloves in the amounts of approximately $88,000 and $115,000. Notes in those principal amounts were executed and delivered by the Sizeloves to plaintiff on that date. These were the notes upon which judgments were obtained against Lincoln as guarantor. These notes were payable on June 16, 1977. No payments were made, but on June 16, 1977, Size-loves executed and delivered to plaintiff new notes in the same amount as those previously mentioned but with a slightly lower interest rate. No guaranty letters were issued on behalf of Lincoln for those notes. Plaintiff first demanded payment of the Sizelove notes from Lincoln on August 30, 1977. Lincoln refused to honor the demand.

Subsequently, additional notes were taken from the Sizeloves in the same principal amounts, but with higher interest rates on June 12, 1978, and June 12, 1979. Then, on December 27, 1979, a single note in the principal sum of $415,000 due and payable July 1, 1981, with interest at the rate of 141/2% was executed by Corn Belt as trustee of a land trust of which Donald Sizelove held a 90% interest. The principal of the note was purported to be the Sizeloves’ indebtedness on the previous notes plus interest accrued thereon and other indebtedness.

A general rule has developed that if a new note is taken for the same indebtedness evidenced by a prior note, a guarantor on the prior note is discharged if the new note constitutes a valid agreement supported by consideration extending the time for payment on the old note. (38 C.J.S. Guaranty sec. 75a (1943); see Schuman v. Arsht (1928), 249 El. App. 562; cf. White v. Walker (1863), 31 Ill. 422.) However, when the new note is not based on valid consideration flowing to the payee, the extension of time purportedly provided for in the new note does not operate as a valid extension of the time for payment of the debt and does not operate to discharge the guarantor. Mitchell v. Peterson (1981), 97 Ill. App. 3d 363, 422 N.E.2d 1026; 38 C.J.S. Guar anty sec. 75b (1943); Lee v. Pioneer State Bank (1981), 97 Ill. App. 3d 97, 423 N.E.2d 218.

Application of the foregoing rule of discharge depends not only upon whether the new notes are supported by consideration flowing to the payee of the old notes, but also upon the related question of whether the new notes were intended to discharge the old notes or merely to operate as security for those notes. In Weger v. Robinson Nash Motor Co. (1930), 340 Ill. 81, 172 N.E. 7, the supreme court held that the question of whether new notes are intended as a satisfaction of a previous note discharging the guarantor of that note is basically a question of fact. There, the court upheld the trier of fact’s determination that renewal notes were not intended to discharge the old notes even though the holder of the old notes had marked them as being paid. The court noted that a holder would not be likely to intend a new note, for which there was no guarantor, to be a satisfaction of a previous note for which there was a guarantor.

Thus, even if the new notes given here differed from the old as to interest, compounding of interest, or other conditions and terms in such a way as to indicate Sizeloves had given consideration for an extension of time, that would not compel a determination that the new notes were intended to discharge the old. That was a question of fact for the trier of fact. The trial court’s determination in that regard was not contrary to the manifest weight of the evidence. Accordingly, the trial court’s decision that any guaranty which Lincoln might have made was not discharged by the execution of the new notes was supported by the evidence.

The guaranty letters concerning the Sizelove notes make no mention of any requirement that security be taken by plaintiff for those loans. After the notes were executed, the Sizeloves did secure the notes by an assignment of their beneficial interest in a land trust. Later, by agreement with plaintiff, that assignment was released and properties held in the trust sold with the proceeds applied to other indebtedness of the Sizeloves to plaintiff. Had the security of the assignment of beneficial interest been required by the terms of the guaranty the debt would have been discharged. No authority is cited for Lincoln’s contention that the release of the gratuitous security, given after the loan was made, discharged the guarantor. We agree that the trial court properly ruled that the guaranty was not destroyed by plaintiff’s release of this security.

Lincoln asserts that no consideration flowed to it to make valid its guaranties of December 21, 1976, because the effect of that transaction was merely the renewal of old notes. While a maker of a note may give no consideration to a holder when an old note is substituted for a new, the forbearance of the holder may constitute consideration to a guarantor. Here, plaintiffs forbearance against Sizeloves who were heavily indebted to Lincoln constituted consideration for Lincoln’s guaranty of the notes upon which suit was brought. Any guaranties made by Lincoln were not void for lack of consideration.

THIRD PARTY ACTION FOR INDEMNITY

We now turn to the indemnity actions against Darley and Frisch. We consider first the trial court’s determination that they acted without express or implied authority. We have previously indicated that Lincoln would have had authority to make a valid guaranty under the circumstances, but neither Darley nor Frisch necessarily had actual authority to do so. We do not consider the broad powers given them to necessarily include the authority to make guaranties. The broad scope of the resolutions of Lincoln’s governing board made no express reference to guaranties. There was no evidence that officers of savings and loan associations ordinarily made binding decisions in this regard.

The most telling evidence against Darley and Frisch was the substantial evidence that they went to great lengths to keep knowledge of their issuance of guaranties from the directors. One witness testified that Darley had stated that if the directors knew of one guaranty he had issued, Darley’s job would be lost. Express or implied authority is determined by the internal arrangement and dealings between the principal and its agents. Apparent authority is determined from outward appearance. The trial court found Darley and Frisch had apparent authority as a matter of law, but not express or implied authority. We have reversed the judgment supporting the findings that they had apparent authority as a matter of law. Factual findings that they had apparent, but not express, or implied, authority would not necessarily be inconsistent. Here, the determination that they had neither express nor implied authority to do so was not contrary to the manifest weight of the evidence.

Darley filed an affirmative defense to Lincoln’s complaint for indemnity alleging that a resolution adopted at a Lincoln shareholders meeting expressly ratified his acts in issuing various letters of guaranty. The resolution stated in pertinent part:

“BE IT AND IT IS HEREBY RESOLVED by the stockholders of Lincoln Savings and Loan Association, in Annual Meeting assembled, that the report of money had, and received, the business transacted and the acts and doings of the officers and directors of this Association covering the fiscal year ended December 31,1976, be and the same is hereby approved and confirmed.
BE IT RESOLVED by the stockholders that the acts and doings, collections, compromises, receipts, and expenditures of money, and all other transactions entered into and performed by the officers and directors or any of them, of this Association as set forth in and reflected by said report, be approved, ratified, and confirmed.”

Lincoln filed a motion for summary judgment supported by the affidavit of one of its directors who had made the motion to adopt the resolution. The affidavit stated that it had not been the intent of the resolution to ratify Barley’s acts in making the guaranties. Barley maintains that at least a question of fact was raised as to whether the motion constituted a ratification of his acts. The resolution was prima facie evidence of the matters set forth therein. (18 Am. Jur. 2d Corporations sec. 177 (1965).) Had the resolution and the affidavit been in conflict, a material question of fact would have existed. However, the resolution purported to ratify conduct described in a report presented to the meeting. This report made no mention of guaranties having been made on behalf of Lincoln. The trial court properly granted that summary judgment.

Barley and Frisch contend that Lincoln impliedly ratified their conduct in making the guaranties. This contention is based on the general rule that a party cannot repudiate acts of another done on his behalf and at the same time accept the fruits and benefits of those acts unless within a reasonable time of learning that the acts of the other were unauthorized, he returns the benefits. They cite Vetesnik v. Magull (1932), 347 Ill. 611, 180 N.E. 390, Ault v. Associates Discount Corp. (1963), 43 Ill. App. 2d 409, 193 N.E.2d 226, and Karetzkis v. Cosmopolitan National Bank (1962), 37 Ill. App. 2d 484, 196 N.E.2d 72, which do set forth that general rule. However, the retention of benefits by the principal after it acquires knowledge of another’s breach of duty will not amount to ratification if, without fault of the principal, “conditions are such that [the principal] cannot be placed in status quo or repudiate the entire transaction without loss.” 3 Am. Jur. 2d Agency sec. 177 (1962).

Here, there was substantial evidence that much of the money obtained by the Schultzes and Sizeloves in guarantying the debts ultimately guaranteed by Barley or Frisch did inure, directly or indirectly, to Lincoln’s benefit either by being used to (1) pay off debts to Lincoln, (2) improve the financial position of the borrowers who were debtors to Lincoln, or (3) enhance the security held by Lincoln. However, the court could properly have found Lincoln to be entirely without knowledge of what was taking place until well after the transaction whereby the guaranties were issued had been completed. No suggestion is made by Barley and Frisch as to how Lincoln could have repudiated those benefits and placed itself in substantially the same position as it was in before the guaranties were issued. We note that the cases cited by Barley and Frisch are those where innocent third persons are the adversaries of purported principals who contend they are not bound by unauthorized acts of purported agents. Here, the dispute is between a principal and agents who have allegedly acted beyond their authority. The requirement of the rule that the principal is not required to repudiate unless it can obtain status quo is particularly appropriate and fair.

The trial court’s determination that implied ratification did not take place was supported by the evidence.

Although the fact that Lincoln necessarily received benefits does not constitute ratification, it does negate the propriety of damages which were fixed in the full amount of the judgments against Lincoln. Barley and Frisch are entitled to a new trial on the issue of damages if plaintiff is ultimately permitted recovery from Lincoln. At that time, Lincoln should also be permitted to obtain judgment for such attorney fees as are then appropriate.

We find no reversible error in any evidentiary rulings made by the trial court in the indemnity actions.

Accordingly, we reverse (1) the summary judgments entered in favor of plaintiff and against Lincoln on the Schultz notes, (2) the judgments in favor of plaintiff and against Lincoln on the Sizelove notes, and (3) the judgments in favor of Lincoln and against Barley and Frisch on the indemnity actions to the extent of the award of damages. All other orders appealed are affirmed. We remand to the circuit court of McLean County for a new trial on the claims of plaintiff against Lincoln on the Schultz and Sizelove notes and for a new trial as to damages on the conditional indemnity actions by Lincoln against Barley and Frisch.

Affirmed in part, reversed in part, and remanded.

MILLS and MILLER, JJ., concur.


author: PRESIDING JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN LEE GRAYSON, Defendant-Appellant.
    First District (2nd Division)
    No. 82—425
    Opinion filed November 8, 1983.

      Steven Clark and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Larry J. Crown, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

Defendant, John Lee Grayson, appeals from his conviction of felonious unlawful use of weapons. (Ill. Rev. Stat. 1979, ch. 38, par. 24— 1(a)(10).) The sentence imposed was an extended term of 10 years’ imprisonment.

Two grounds for reversal are presented by defendant: (1) that certain testimonial evidence proffered during trial, as well as specific prosecutorial comments made during closing argument, tainted the jury’s guilty verdict so as to constitute prejudicial error; and, (2) that the trial court abused its discretion in sentencing defendant to an extended term of imprisonment. As the issue of reasonable doubt was not raised, only a brief summary of the evidence is necessary.

Defendant was arrested on January 27, 1981, on the west side of the city of Chicago, after a chase by two Chicago policemen, Detectives Robert Kleinschmidt and Michael O’Sullivan. During the chase, the policemen recovered one Bower stainless steel .25-caliber automatic handgun which had been discarded by defendant. Following a jury trial, defendant was found guilty as charged; judgment was entered on January 6, 1982.

At the sentencing hearing on February 5, 1982, arguments were heard in aggravation and mitigation. The trial court, indicating that it had reviewed the presentence social investigation report, sentenced defendant to an extended term of 10 years imprisonment. Defendant’s 1978 felony conviction for the offense of possession of controlled substance (Ill. Rev. Stat. 1975, ch. 56V2, par. 1402) was used to enhance the instant conviction to a Class 3 felony; whereas, defendant’s 1975 conviction for the offense of robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18 — 1) provided the basis for the imposition of an extended-term sentence.

I

We first consider defendant’s contention that certain testimonial evidence proffered at trial, as well as specific prosecutorial comments made during closing argument, suggested his involvement in other crimes. It is urged that this alleged inference was highly prejudicial in that it had the effect of persuading the jury to find defendant guilty of felonious unlawful use of weapons.

A

At trial, during the direct examination of Detective O’Sullivan, the following colloquy took place between the prosecutor and the police officer:

“[STATE]: Okay. Let me ask you this, approximately how many arrests have you made in the two-block radius of 3500 West Fifth Avenue in those eleven years?
[WITNESS]: Several hundred, it has been known as an [sic] narcotic area.”

At this point, defense counsel immediately objected and the trial court sustained his objection. However, defendant now contends that the above-quoted testimony had the effect of denying his constitutional right to a fair trial.

Detective O’Sullivan's comment regarding the reputation of the crime scene as a narcotic area did not constitute direct evidence of prior criminality, but merely permitted an inference of suspicion. The record before us does not manifest an effort on the part of the prosecution to elaborate on, much less exploit, the remark in question. Even the detective did not even provide details suggesting the possibility that defendant might have been involved in narcotics transactions. As a result, we are convinced that this isolated comment by the police officer did not single defendant out as a party to the area’s reputed drug activities.

We do not deem it necessary to restate the oft-repeated principle applicable to this subject. Defendant relies on People v. Goodwin (1979), 69 Ill. App. 3d 347, 349, 387 N.E.2d 433 (where the police officer testified “[defendant] asked me to let him go, he did not want to go back to prison again”), and People v. Curry (1975), 25 Ill. App. 3d 637, 639, 323 N.E.2d 778 (where the police officer testified “we had two rape warrants out for [defendant] with a gang-related incident at the time of the shooting”). As can be readily discerned, however, the questioned testimonial evidence here falls far short of that considered by Illinois courts to constitute reversible error.

We therefore hold that Detective O’Sullivan’s characterization of the vicinity in which defendant was arrested, taken in the context of his familiarity with the crime scene, did not prejudicially induce the jury to regard defendant as a man with the criminal propensity to commit the offense of unlawful use of weapons.

B

Next, we consider defendant’s assertion that he was denied a fair trial because of alleged prejudicial comments made by the prosecutor during closing argument. Specifically, defendant cites five instances which merely contained the prosecutor’s argument pertaining to what the testimonial evidence adduced at trial demonstrated. We note, however, that three of the five remarks were not objected to by defendant at trial; nor were they raised in his written motion for a new trial. We thus consider these three alleged errors as having been waived for appellate review. People v. Carlson (1980), 79 Ill. 2d 564, 575-76, 404 N.E.2d 233; People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.

As for defendant’s remaining citations of error, he urges that the following two prosecutorial comments substantially prejudiced his constitutional right to a fair trial:

“[STATE]: [Detective Kleinschmidt] is in that area day in and day out in his job as a Chicago Police Officer trying to keep these streets safe, trying to keep people—
[DEFENSE]: Objection.
[STATE]: —from carrying guns on the streets.
THE COURT: Noted.
[STATE]: They had to arrest him for possessing that gun because he committed that offense right in front of him. Same as if he had shot someone right in front of him—
[DEFENSE]: Objection.
THE COURT: Sustained.”

Our supreme court has consistently held that a prosecutor’s closing argument may, when supported by facts in the record or inferences fairly drawn therefrom, denounce the accused, comment on the violence and evil results of the crime, reflect upon witness credibility, and urge the fearless administration of the law. (People v. Bryant (1983), 94 Ill. 2d 514, 523-24, 447 N.E.2d 301; People v. Jackson (1981), 84 Ill. 2d 350, 360, 418 N.E.2d 739.) The standard for determining if prosecutorial comments made during closing argument constitute reversible error is whether those remarks were such that, without their having been made, the jury might have reached a different result; furthermore, a trial court’s determination of the propriety of a prosecutor’s closing argument will not be disturbed absent extreme error. People v. Barnes (1983), 117 Ill. App. 3d 965, 976-77; People v. Maldonado (1981), 101 Ill. App. 3d 948, 951, 428 N.E.2d 1087, appeal denied (1981), 85 Ill. 2d 571.

Regarding the instant action, defendant was prosecuted for the felonious unlawful use of weapons based on the uncontroverted, eyewitness testimony of two veteran Chicago police officers. In accordance with Bryant and Jackson, it was therefore permissible for the prosecution to comment on the violence and the evil results of this crime. Likewise, it was permissible for the State to emphasize the importance of a fearless administration of the law.

The trial court properly sustained defendant’s objection to the statement, “[s]ame as if he had shot someone right in front of him.” However, “it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations”; for, “the interests preserved by the doctrine of harmless error cannot be so lightly and casually ignored in order to chastise *** prosecutorial overreaching.” (United States v. Hasting (1983), 461 U.S. 499, 509, 507, 76 L. Ed. 2d 96 106, 105, 103 S. Ct. 1974, 1980, 1979.) Here, there has been no showing that any of the remarks questioned by defendant influenced the jury and thus became a material factor in his conviction. To the contrary, from our review of the record we find that the evidence establishing defendant’s guilt was overwhelming. Indeed, defendant does not even contest the sufficiency of the evidence against him.

Since the prosecutorial comments complained of in this case were not of such magnitude as to result in substantial prejudice against defendant, we therefore hold that he was not deprived of his constitutional right to a fair trial.

II

Defendant further argues that the trial court abused its discretion in sentencing him to an extended term of 10 years imprisonment.

A

It is first maintained that the lower court erroneously considered evidence of other criminal conduct, as well as the threat of serious harm to Detective Kleinschmidt, used in aggravation during the sentencing hearing.

In Illinois, it is firmly established that the determination of a sentence is a matter of judicial discretion and that, absent an abuse of this discretion, the sentence imposed by the trial court will not be altered upon review. (People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.) Moreover, our supreme court has recently held that evidence of other offenses not resulting in a conviction can be considered by a trial judge when determining a particular defendant’s sentence, for the court is not strictly limited to consideration of only that information which would be admissible under the adversary circumstances of a trial. People v. La Pointe (1981), 88 Ill. 2d 482, 494-99, 431 N.E.2d 344.

At the hearing in aggravation and mitigation in the case at bar, three stipulations were presented by the State. The third stipulation concerned the testimony of one Demetrius Brown who, were he called as a witness for the prosecution, would testify that on January 20, 1981, defendant walked into a pool hall at 806 South Pulaski in Chicago and attempted to talk him into joining the Vice Lords gang. However, because of Brown’s refusal to join the Vice Lords, defendant shot him once in the groin and once in the shoulder.

Defendant now argues that “[tjhere was no indication of reliability [sic] as to this evidence.” Since no witness testified from firsthand knowledge as to the foregoing facts, defendant urges that it was improper for the court to rely on this evidence. Defendant further claims that his trial counsel stated that he was stipulating only if Brown had changed his mind about testifying. We find both of these assertions to be without merit.

First, by arguing that the trial court erred because it considered information not sworn to in open court, nor subject to cross-examination, defendant eviscerates the well-established doctrine extensively relied upon by the La Pointe court in the rendition of its decision: “ '*** We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination. ***’ ” People v. La Pointe (1981), 88 Ill. 2d 482, 497, quoting Williams v. New York (1949), 337 U.S. 241, 250, 93 L. Ed. 1337, 1343, 69 S. Ct. 1079,1084.

Second, it is clear from our review of the record in this case that defendant’s counsel at trial unequivocally stipulated to the contents of Demetrius Brown’s testimony:

“[DEFENSE]: I have talked to the State’s Attorney and we agreed that if Mr. Brown did come into this court and take the stand that would be his testimony as indicated through the police reports. I would so stipulate to that.”

Defendant cannot now be heard to say that this stipulation was invalid merely because the witness did not intend to appear at the hearing. There was an irrefutable stipulation before the trial court and, in accordance with Cox and La Pointe, the sentencing judge was entitled to find such evidence accurate and reliable. To raise such an issue on appeal based upon this record dilutes the appellate process. It is much more professional to ignore specious arguments and concentrate on the significant.

It is further maintained that the trial court improperly considered the aggravating factor that defendant’s conduct during his apprehension threatened serious harm to Detective Kleinschmidt. Illinois statutory law, however, provides that a defendant’s conduct which threatens serious harm may be considered by the trial court when making a sentence determination. Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(a)(1).

The evidence adduced at the instant trial showed that during the extensive chase to prevent defendant’s escape, he reached into his right coat pocket and pulled out a loaded Bower stainless steel .25-caliber automatic handgun. This act was done when Detective Kleinschmidt was approximately 10 to 15 feet behind him. The detective testified that “[i]t seemed like his finger was in the trigger, and a portion of the barrel was sticking out, protruding.” In fact, the detective even acknowledged that it was possible at that time for defendant to turn around and fire. Examination of the gun at the scene revealed one live cartridge in the chamber, and approximately four to six live rounds of ammunition in the clip.

In this factual setting, it is quite obvious that defendant’s conduct manifested an intent to escape at all costs, even if he had to shoot a Chicago police officer in the process. Without question, such menacing behavior threatened serious harm — if not death — to Detective Kleinschmidt; as a result, we are convinced that the trial court properly considered this evidence as a factor in aggravation under section 5 — 5—3.2(a)(1) of the Unified Code of Corrections. Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(a)(1).

B

The final issue for resolution involves the propriety of the trial court’s determination that defendant was eligible to receive an extended term of imprisonment.

In Illinois, sentencing judges are vested with wide discretion in order to permit reasoned judgments as to the punishment appropriate to the particular circumstances presented in each case. (People v. LaPointe (1981), 88 Ill. 2d 482, 492.) Within this broad discretionary framework, a trial judge may impose an extended term of imprisonment upon any offender, at least 17 years old on the date the crime was committed, when “convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts ***.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(1).) However, “[t]he logical interpretation of that language indicates an intent to severely punish a recidivist convicted of separate felonies within 10 years where the latest offense consisted of conduct which itself constituted a felony.” People v. Hobbs (1981), 86 Ill. 2d 242, 246, 427 N.E.2d 558.

In Hobbs, the defendant stole liquor in 1979; this conduct, standing alone, constituted a Class A misdemeanor under Illinois statutory law since the value of the stolen property was less than $150. (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e).) However, due to a prior felony theft conviction in 1978, the 1979 offense was enhanced to a Class 4 felony in accordance with section 16 — 1(e). Following prosecution and conviction, the trial court again used the 1978 theft as the predicate felony conviction for the imposition of an extended-term sentence of six years’ imprisonment. In concluding that the circuit court erred in imposing an extended-term sentence, the Hobbs court stated that “an extended term could have been imposed if the 1979 offense, exclusive of any other, had constituted a felony, and the earlier conviction had been of a felony at least as egregious.” (Emphasis added.) People v. Hobbs (1981), 86 Ill. 2d 242, 245.

Here, the indictment upon which defendant was convicted and sentenced charged him with unlawful use of weapons, in violation of section 24 — l(a)(10) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 24— l(a)(10)). Since this crime occurred within five years of defendant’s parole on May 22, 1980, for his 1978 felony conviction for the offense of possession of a controlled substance (Ill. Rev. Stat. 1975, ch. 561/2, par. 1402), the instant offense was enhanced to a Class 3 felony in accordance with section 24 — 1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(b)). At the sentencing hearing, the trial court determined that defendant was eligible for an extended-term sentence since he was convicted in the present case of a Class 3 felony after having been convicted in 1975 of robbery, a Class 2 felony (Ill. Rev. Stat. 1973, ch. 38, par. 18 — 1(b)) for which he was sentenced to a term of one to three years’ imprisonment. Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(b)(3).

Under these circumstances, we do not believe defendant was eligible for an extended-term sentence; nor do we agree with the State’s assertion that People v. Clearlee (1981), 101 Ill. App. 3d 16, 427 N.E.2d 1005, is dispositive of this issue. In Clearlee, the defendant was convicted of unlawful use of weapons, enhanced to a Class 3 felony because of his two previous convictions that were stipulated to in the State’s case-in-chief. An extended term of eight years’ imprisonment was imposed because of defendant’s “four other robbery convictions.” (People v. Clearlee (1981), 101 Ill. App. 3d 16, 20.) This court affirmed the sentence determination, holding that since the circuit court considered four distinct felony convictions not used to prove the enhanced charge, an extended term was thereby justified. (People v. Clearlee (1981), 101 Ill. App. 3d 16, 18, 20.) However, we note that Clearlee contained no discussion of Hobbs since it was filed two weeks after the Hobbs opinion was issued.

Defendant cites People v. Spearman (1982), 108 Ill. App. 3d 237, 438 N.E.2d 1320, appeal denied (1982), 92 Ill. 2d 571, in support of his contention that the imposition of an extended-term sentence was erroneous. The defendant in Spearman was convicted of retail theft, ordinarily a Class A misdemeanor, but which was enhanced to a Class 4 felony because of his previous conviction for another misdemeanor retail theft. An extended-term sentence was imposed due to defendant’s history of burglary and attempted burglary convictions. This sentencing order was reversed, the court holding that section 5 — 5— 3.2(b)(1) of the Unified Code of Corrections would not be interpreted so as to authorize the imposition of up to six years’ imprisonment for shoplifting three pieces of meat. (People v. Spearman (1982), 108 Ill. App. 3d 237, 240.) Although the conviction used in Spearman to enhance the retail theft charge from a misdemeanor to a felony was a prior misdemeanor, whereas the conviction used in the present case to enhance the unlawful use of weapons charge from a misdemeanor to a felony was a prior felony, we nonetheless find the decision helpful in our analysis of Hobbs .and the intricacies of the sentencing provisions of the Unified Code of Corrections.

In essence, Hobbs mandates that we carefully scrutinize the underlying instant conduct and that if such conduct, irrespective of enhancement by prior conviction, constitutes a misdemeanor, then section 5 — 5—3.2(b)(1) cannot be invoked. (People v. Hobbs (1981), 86 Ill. 2d 242, 245.) Since subsection (a)(10) of the unlawful use of weapons statute is not a felony in its unenhanced state (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(b)), it is not thereby accordant with the legislative intent manifested by section 5 — 5—3.2(b). As a result, we hold that the imposition of an extended-term sentence here was erroneous.

III

Under the authority of section 8 of “An Act concerning fees and salaries ***” (Ill. Rev. Stat. 1981, ch. 53, par. 8), and People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we assess defendant $50 in costs for the State’s defense of this appeal, and hereby incorporate it as part of this judgment. We deny the State’s request for an additional $25 for oral argument. This denial is predicated on our interpretation of the per diem provision of the statute (“For each day actually employed in the trial of a case, $25”) as referring to an actual trial in the circuit court, not to an oral argument on appeal.

For the reasons set out herein, the judgment of conviction is affirmed; the sentencing order is vacated; and, this cause is remanded to the circuit court of Cook County for resentencing.

Judgment affirmed; sentence vacated; cause remanded.

PERLIN and HARTMAN, JJ., concur.