author: JUSTICE McGLOON

text:
    THERESE M. HALAS et al., Petitioners-Appellants, v. EXECUTOR OF THE ESTATE OF GEORGE S. HALAS, JR., Deceased, RespondentAppellee.
    First District (1st Division)
    No. 82—235
    Opinion filed February 14, 1983.
    Rehearing denied March 14, 1983.

      William J. Harte and David J. Walker, both of William J. Harte, Ltd., and Thomas S. Chuhak, guardian ad litem, pro se, both of Chicago, for appellants.
    Cornelius J. Harrington, Jr., William L. Rowder, John T. Hickey, Jr., and Alan C. Brown, all of Kirkland & Ellis, of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Petitioner, Therese M. Halas, appeals from the dismissal of three petitions whereby she sought to have certain trust amendments declared invalid, to increase the amount of child support awarded in dissolution of marriage proceedings, and to set aside and vacate certain provisions of a judgment for dissolution of marriage. Thomas Chuhak, guardian ad litem appointed to represent the interests of two minor children, was granted leave to intervene. He joined Therese in the first two petitions, but opposed the latter.

On appeal, petitioner and the guardian ad litem contend (1) the trial court erred in finding that a partial revocation and an amendment of a trust were valid, and (2) petitioner should have been granted an increase in child support. Additionally, petitioner contends the trial court erred in dismissing with prejudice her section 72 petition to vacate portions of a judgment for dissolution of marriage.

We affirm in part, reverse in part, and remand.

Therese and George M. Halas, Jr., were married in 1963. Two children were born during the marriage. In 1975, Therese and George were divorced. George Halas, Jr., died on December 16, 1979. At the time of his death, he was married to Patricia Navalio Halas, whom he had wed in 1978.

The judgment for dissolution of marriage incorporated a settlement agreement entered into by the parties, each of whom was represented by counsel during the settlement negotiations. Part of the settlement agreement provided that decedent was to pay petitioner $50,000 as alimony in gross during the first year after the divorce and $35,000 per year for up to nine years thereafter. The alimony in gross payments also included child support. The parties also agreed that alimony in gross payments would continue after decedent’s death. Paragraph 5 of the settlement agreement insured continued payments and provided as follows:

“The husband further covenants and agrees that he will keep and maintain in full force and effect insurance upon his life by doing any and all things necessary thereto in any amount no less than the unpaid balance of the alimony in gross due and owing the wife at any time, naming the wife or a trust for the benefit of wife as irrevocable beneficiary thereof until the husband’s said obligation to pay alimony in gross to wife has ceased.”

In order to comply with paragraph 5 of the settlement agreement, decedent in 1976 executed an amendment (the 1976 amendment) to an insurance trust originally established in 1972. The 1976 amendment directed the trustee, upon decedent’s death, to pay the alimony in gross out of the insurance proceeds as the payments became due. Any trust property remaining thereafter was to be paid to the trustee of the testamentary trusts for the benefit of the children. The 1976 amendment also contained the following provision which is one subject of this appeal:

“12. I reserve the following rights, powers and authority which may be exercised at any time and from time to time:
(a) By written instrument delivered to the trustee to change, modify, or revoke this agreement and the trusts hereby evidenced, in whole or in part, except that if changed or modified, the duties, powers and responsibilities of the trustee shall not be changed substantially without the trustee’s written consent and I may not change, modify or revoke this agreement in any way without the written consent of my former wife, Therese Martin Halas, as long as any of the gross alimony payments to be made to her under the agreement with her attached hereto as Exhibit B remain unpaid.
(b) All benefits, privileges, payments, annuities, dividends, surrender values, options and elections accorded or available to me under any and all policies of life insurance which may be made payable to the trustee, including the right to change the beneficiary named in any or all of such policies, to deposit, assign, transfer or pledge them as collateral security for any loan which I may make from lender (including said American National Bank and Trust Company of Chicago) and to withdraw any of such policies deposited with the trustee, except that in compliance with paragraph 5 of Exhibit B at all times life insurance policies which are in force under which I am the insured shall be retained in the custody of the trustee and be payable in a lump sum to the trustee in an amount exceeding loans against such policies no less than the unpaid balance of the alimony in gross due and owing to my former wife, Therese Martin Halas, at any time under the provisions of the agreement with her attached as Exhibit B. The trustee shall not be obligated to see that any policy so withdrawn is returned to the trustee’s custody.” (Emphasis added.)

In 1978, decedent again amended the trust (the 1978 amendment). In this amendment, decedent directed the trustee to retain only insurance proceeds in an amount equal to the unpaid alimony in gross. Funds in excess of that amount were to be distributed to a new trust established by decedent in 1978 (the 1978 trust). Under the terms of the 1978 trust, Patricia Halas was to receive one-third of the proceeds after decedent’s death. The remainder was to be divided equally between two trusts established for the children. In order to fund the new 1978 trust, decedent executed a partial revocation of the 1972 trust, as amended in 1976, directing the trustee to surrender one of nine insurance policies used to fund the trust.

After decedent’s death, petitioner sought to have the 1978 amendment and partial revocation declared invalid and to prohibit reliance by the executor and trustee on the amendment and revocation. She alleged in her petition that the amendment and revocation were void because they were executed without her consent. The guardian ad litem appointed to represent the interests of the minor children joined in this petition. After a hearing the trial court dismissed the petition.

In another petition filed after decedent’s death, petitioner sought increased child support. She alleged that inflation operated to reduce the original support payments by 40% and that the support costs had increased since the time the original support order had been entered. The guardian ad litem joined in this request. After an evidentiary hearing, the trial court denied the petition on the ground that decedent had provided adequately for the needs of the children after his death.

Petitioner also filed a section 72 petition seeking to vacate certain portions of the judgment for dissolution of marriage. She alleged that the settlement agreement incorporated into the judgment for dissolution of marriage was invalid because it was predicated on decedent’s fraudulent representations regarding the value of his assets. She specifically alleged that decedent submitted false financial data and failed to disclose ownership of municipal bonds valued at about $400,000. It was further alleged that decedent represented the value of his Chicago Bears Football, Inc., stock as $200,000, but the actual value was approximately $5,000,000. Petitioner stated her waiver of permanent alimony and child support was secured solely by the fraud and and misrepresentation of decedent and had she known of decedent’s true net worth, she would not have accepted the agreement. Additionally, the petition alleged that decedent concealed the existence of the bonds and actual value of Chicago Bears stock from the time the judgment was entered until his death and petitioner was unable to discovery these matters. The executor’s motion to strike and dismiss the petition, joined in by the guardian ad litem,, was granted. The petition was dismissed with prejudice and without leave to amend.

First, petitioner and the guardian ad litem, contend the trial court erred in dismissing their petition to set aside the partial revocation of and the 1978 amendment to the trust. They maintain paragraph 12(a) of the 1976 amendment clearly and unambiguously prohibits changes in the trust provisions without petitioner’s consent. Consent was not given for the 1978 revocation and amendment and the petitioner and guardian ad litem, therefore contend the partial revocation and amendment were invalid and unenforceable.

When read alone, paragraph 12(a) seems to require petitioner’s consent to any changes in the trust. However, the entire agreement, not merely one isolated provision, must be considered in construing the trust instrument. (First National Bank v. Canton Council of Campfire Girls, Inc. (1981), 85 Ill. 2d 507, 426 N.E.2d 1198; American Rubber & Plastic Corp. v. First National Bank (1971), 50 Ill. 2d 172, 277 N.E.2d 840; Vournazos v. Vournazos (1979), 71 Ill. App. 3d 672, 390 N.E.2d 19.) Thus, paragraph 12(b) of the 1976 amendment must also be considered. In this latter paragraph, decedent reserved the right to exercise various options and privileges accorded him under the policies, to assign, transfer or pledge the policies, and to withdraw policies so long as sufficient funds in the amount of unpaid alimony remained in the trust. Paragraph 12(b) is clearly inconsistent with paragraph 12(a). Provisions which appear to be inconsistent or conflicting must be reconciled and harmonized. (First National Bank v. Baker (1976), 35 Ill. App. 3d 676, 342 N.E.2d 337.) In construing provisions, all language must be given meaning (First National Bank v. Baker) and the intent of the testator must be determined and given effect. Vournazos v. Vournazos.

One purpose of the 1976 amendment as expressly stated therein was compliance with paragraph 5 of the settlement agreement incorporated in the judgment for dissolution of marriage. As noted in the facts previously stated, paragraph 5 required that decedent establish and maintain an insurance trust in an amount no less than the unpaid alimony in gross due petitioner at any time, until his obligation to pay alimony ceased. Considering the purpose of the trust and construing the pertinent provisions as a whole, we find that in paragraph 12(a), decedent intended to give petitioner veto power only over that portion of the trust equal in value to the amount of unpaid alimony in gross. Were we to construe the trust in any other manner, the intent of the settlor would not be given effect and paragraph 12(b) would be rendered meaningless.

We conclude decedent properly and validly executed the 1978 amendment and the partial revocation of the 1976 trust and that such actions were valid exercises of his reserved powers. Petitioner’s consent was not required because funds sufficient to provide for unpaid alimony in gross remained in trust. Therefore, we find the trial court did not err in dismissing the petition to prohibit the executor and trustee from relying on amendments subsequent to that executed in 1976.

Second, petitioner and the guardian ad litem contend the trial court erred in denying the petition for increased child support. The trial court found that section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510(c)) permits modification of child support after the death of the obligor only if the obligor did not provide adequately for the well-being of the children through a testamentary device. Because decedent made the children beneficiaries of two trusts in which were held over $600,000 worth of assets, the trial court found that no modification of the support order was warranted. Petitioner maintains section 510(c) does not restrict modification of support payments after the death of a parent to cases where the children have been disinherited and argues that an increase in support was necessary due to the age of the children and inflation. Additionally, the guardian ad litem contends the best interests of the children require that petitioner, the sole surviving parent, be vested with control of the funds for support. He argues the denial of the petition for increased support effectively reduces petitioner’s ability to provide for the children’s needs and allows the trustee, a third party, to make important decisions affecting the children’s welfare.

We first address the issue regarding section 510(c) of the Illinois Marriage and Dissolution of Marriage Act. This section provides:

“Unless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child, except as otherwise provided herein, but not by the death of a parent obligated to support the child. When a parent obligated to pay support dies, the amount of support may be modified, revoked or commuted to a lump sum payment, to the extent just and appropriate in the circumstances, and such determination may be provided for at the time of the dissolution of the marriage or thereafter.” (Ill. Rev. Stat. 1981, ch. 40, par. 510(c).)

Prior to the enactment of 510(c), support orders were of no legal effect after the death of the obligor (In re Estate of Lewis (1974), 18 Ill. App. 3d 748, 311 N.E.2d 694; Johnson v. Continental Illinois National Bank & Trust Co. (1967), 88 Ill. App. 2d 124, 232 N.E.2d 59) and, for various reasons, children of a previous marriage often were not included in the obligor’s will. (See Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 581-82, 376 N.E.2d 1382, 1390-91.) Thus, support payments for children often ceased upon the death of the obligor. Section 510(c) was designed to correct this problem and eliminate the hardship imposed upon children through loss of support by disinheritance. (Ill. Ann. Stat., ch. 40, par. 510(c), Historical and Practice Notes, at 702 (Smith-Hurd 1980); Kujawinski.) Considering the purpose of section 510(c), we agree with the trial court’s interpretation that no modification of a support order is warranted where the person obligated to pay support has adequately provided for the children in a testamentary device.

Furthermore, the trial court heard evidence and reviewed documents regarding the financial resources of petitioner, the children, and the estate, the standard of living to which the children were accustomed, the physical and emotional condition of the children, and the children’s educational needs. Also considered was the fact that the trustees were instructed to apply the income and principal they considered necessary or desirable for the children’s support, maintenance, medical care and education. The trial court then found the trusts established by decedent and funded by assets valued at about $600,000 adequately provided for the children’s needs. We agree with the trial court’s finding and further note that after decedent’s death, petitioner also received alimony in gross payments. These payments of $2,916.66 per month included money for the support of the children. In fact, the settlement agreement incorporated into the judgment for dissolution of marriage and the 1976 trust amendment established pursuant thereto specifically provided that alimony in gross payments were to continue after decedent’s death. This method of providing continued support is permitted under section 510(c). (111. Ann. Stat., ch. 40, par. 510(c), Historical and Practice Notes, at 703 (Smith-Hurd 1980).) Thus, it is clear that decedent adequately provided for the support of his children.

Furthermore, we are not persuaded by the guardian ad litem’s argument that petitioner, as the custodial parent, should control all funds designated for the children’s support and maintenance. The focal point of the statute is support of children, not control over those funds used for support. Furthermore, the settlor of the trust is free to appoint as trustee whomever he wishes so long as that person possesses the proper legal capacity and qualifications. (In re Estate of Bockwith v. Cooper (1930), 258 Ill. App. 411.) Thus, we do not find that the result urged by the guardian ad litem is legally required.

For the foregoing reasons, we find the trial court properly denied petitioner’s request for increased child support.

The final issue raised in this appeal is whether the trial court erred in dismissing the section 72 petition. In deciding this question, we must bear in mind that a section 72 petition must set forth specific factual allegations supporting the following elements:

(1) the existence of a meritorious claim or defense;
(2) due diligence in presenting the claim or defense in the original action;
(3) lack of fraud or negligence in failing to present an error of fact or a valid claim or defense to the trial court at the time the original judgment or order was entered; and
(4) due diligence in filing the section 72 petition.

(Schmidt v. Siegal Trading Co. (1979), 72 Ill. App. 3d 611, 391 N.E.2d 32, citing Mitchell v. Seidler (1979), 68 Ill. App. 3d 478, 386 N.E.2d 284.) Additionally, because the petition was filed more than two years after the judgment for dissolution of marriage was entered, the petition must also contain specific allegations that the party seeking relief was under a legal disability or duress or that the facts supporting relief were fraudulently concealed. (Crowell v. Bilandic (1980), 81 Ill. 2d 422, 411 N.E.2d 16; Nogle v. Nogle (1964), 53 Ill. App. 2d 457, 202 N.E.2d 683; Ill. Rev. Stat. 1981, ch. 110, par. 72(3).) Mere allegations or general averments are inadequate to toll the two-year limitation period set forth in section 72. Nogle.

The trial court considered these principles in ruling on the adequacy of the section 72 petition. It granted the motions to dismiss filed by the executor and guardian ad litem on the grounds that petitioner failed to allege specific facts evidencing fraudulent concealment, failed to conduct reasonable and diligent discovery during the original dissolution proceeding, and failed to exercise due diligence in filing the petition. In the trial court’s opinion, the latter ground, founded upon the eight-month delay between the time petitioner discovered the alleged fraud and the time she filed her petition, was fatal to the action and warranted a dismissal with prejudice. In its memorandum decision, the court stated that while it might have been possible to correct the other defects in the pleadings, petitioner could never show diligence in filing the petition.

Initially, petitioner contends the eight-month delay did not exemplify a lack of diligence in filing the petition. We agree for the following reasons. Petitioner did not learn of the alleged misrepresentation until after decedent’s death. She immediately filed a claim against decedent’s estate. During oral arguments, the parties admitted that settlement negotiations were thereafter conducted. The section 72 petition was filed only after it became apparent that the matter could not be settled. We are reluctant to hold that a delay occasioned by settlement negotiations is fatal to a section 72 petition. Such a holding would have, in many cases, the ultimate effect of discouraging negotiations vital to the legal community and the public which it serves. In this case, petitioner diligently and conscientiously pursued her claim from the time she learned of its existence. We therefore find the delay caused by the settlement negotiations was not sufficient to warrant dismissal of the section 72 petition.

Additionally, petitioner contends the complaint alleged sufficient facts indicating due diligence at the time the judgment for dissolution of marriage was entered and that the trial court’s finding to the contrary was therefore erroneous. However, petitioner only alleged that she, “made very diligent efforts to ascertain the true and actual net worth of decedent.” This allegation is conclusory. As noted above, the specificity rules governing section 72 petitions require that facts evidencing petitioner’s diligence or lack of negligence at the time the judgment was entered must be alleged. In this case, the failure to allege sufficient facts is fatal to the petition (International Industrial Leasing, Ltd. v. H.J. Coleman & Co. (1978), 66 Ill. App. 3d 884, 384 N.E.2d 1), and the trial court therefore was correct in its finding on this element.

Petitioner also argues the trial court erred in finding that the section 72 petition did not allege sufficient facts evidencing fraudulent concealment of the grounds for relief from the judgment for dissolution of marriage. It should be recalled that such allegations were necessary to avoid the two-year limitation for filing a section 72 petition.

Ordinarily, fraudulent concealment sufficient to toll a statute of limitations consists of affirmative acts designed to prevent discovery of a cause of action or ground for relief and silence alone does not constitute fraudulent concealment. (Crowell v. Bilandic (1980), 81 Ill. 2d 422, 411 N.E.2d 16; Chicago Park District v. Kenroy, Inc. (1980), 78 Ill. 2d 555, 402 N.E.2d 181.) An exception to this general rule arises in instances where the existence of a fiduciary duty is clearly established. (Crowell v. Bilandic; Chicago Park District v. Kenroy, Inc.) In the case at bar, the section 72 petition did not allege facts indicating affirmative acts by the decedent to conceal the value of his assets nor did the petition allege the existence of a fiduciary duty. Therefore, the trial court’s ruling on this aspect of the petition was not erroneous.

In summary, we find that the delay occasioned by settlement negotiations did not warrant dismissal of the section 72 petition. However, we agree with that part of the trial court’s order dismissing the petition on the grounds that petitioner failed to allege sufficient facts which showed (1) due diligence in ascertaining decedent’s net worth at the time the judgment for dissolution of marriage was entered and (2) fraudulent concealment or the existence of a fiduciary duty.

Petitioner’s final contention with respect to her section 72 petition is that the trial court erred in dismissing the petition with prejudice and without leave to amend. In its memorandum order, the trial court stated the reason for such dismissal was the eight-month delay in filing the petition. The court further observed that this matter could not be cured. However, we have found this to be an insufficient ground for dismissal. The trial court also commented that the other deficiencies in the petition possibly could have been cured by amendment. We view this statement as an acknowledgement that an amendment would have been allowed had these latter two deficiencies been the bases for dismissal.

As noted in Scala/O’Brien Porsche Audi, Inc. v. Volkswagen of America, Inc. (1980), 87 Ill. App. 3d 757, 762, 410 N.E.2d 205, 208-09:

“A fundamental purpose of the Civil Practice Act is to remove barriers which prevent the resolution of a case on its merits; to that end, the trial court’s power to allow amendments should be freely exercised so that litigants may fully present an asserted cause of action [citations]. Amendment of defective pleadings should therefore be permitted unless it is clear that the defect is not curable thereby. [Citations.]”

Here, only one petition was filed. Amendments were precluded by the trial court’s dismissal with prejudice. However, the factual deficiencies possibly can be cured by amendment and petitioner should be given the opportunity to do so.

For the foregoing reasons, we affirm the orders dismissing the petition for increased child support and the petition seeking to declare the partial revocation and amendment to the trust invalid. The order dismissing the section 72 petition is affirmed in part and reversed in part and we remand this cause to allow amendment of this petition.

Orders affirmed in part, reversed in part; cause remanded.

GOLDBERG and CAMPBELL, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    CUSHMAN & WAKEFIELD OF ILLINOIS, INC., Plaintiff-Counterdefendant-Appellee and Cross-Appellant, v. NORTHBROOK 500 LIMITED PARTNERSHIP et al., Defendants-Counterplaintiffs-Appellants and Cross-Appellees.
    First District (4th Division)
    No. 81—2900
    Opinion filed February 17, 1983.

      Theodore A. Shapero and Mark L. Shapiro, both of Rudnick & Wolfe, of Chicago, for appellants.
    Harvey J. Barnett, of Barnett and Beigel, Ltd., of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Cushman & Wakefield of Illinois, Inc., brought an action against defendants, Northbrook 500 Limited Partnership, Richard Stein and James Otis, to recover leasing commissions claimed to be due under a renting agency agreement. Defendants counterclaimed for damages from plaintiff for overspending on tenant improvements on the various leases negotiated by plaintiff’s assignor. A jury awarded plaintiff $130,807.12 in leasing commissions. The trial court directed a verdict against defendants’ counterclaim and denied plaintiff’s claim for prejudgment interest on the commissions. Defendants appeal the jury’s finding for plaintiff and the court’s directed verdict dismissing their counterclaim. Plaintiff appeals the court’s denial of prejudgment interest on the commissions.

The issues raised on appeal are (1) whether plaintiff was required to plead and prove that its individual brokers, officers and management personnel, as well as those of its assignor, were all licensed real estate brokers dining the time of the rental agency agreement; (2) whether plaintiff proved that it was entitled to the rental commissions awarded by the jury, including the commission for the lease held by Combined Insurance Company of America; (3) whether the trial court properly directed a verdict against defendants on their counterclaim for damages; and (4) whether plaintiff is entitled to prejudgment interest on the commissions owed by defendants.

This case involves several parties. For the sake of clarity, each party and his relevant relationship to this litigation are outlined as follows:

(1) Cushman & Wakefield, Inc., a New York corporation (C&W), made the original renting agency agreement (Agreement) with defendants. C&W later assigned its interest under the Agreement to plaintiff.
(2) Cushman & Wakefield of Illinois, Inc., an Illinois corporation, is the plaintiff and the assignee of C&W, the New York corporation.
(3) Northbrook 500 Limited Partnership is a defendant and developer of the Northbrook 500 building.
(4) Richard A. Stein and James Otis are also defendants and each owns a partnership interest in the Northbrook 500 Limited Partnership.
(5) John Buck and Wesley Irvine were vice-presidents of C&W at the time of formation of the original Agreement between C&W and Northbrook 500 Limited Partnership. Buck and Irvine each owned a one-sixth interest in the Northbrook 500 project, and they also served as renting managers on behalf of C&W during the term of the Agreement. They testified on behalf of plaintiff, Cushman & Wakefield of Illinois, Inc., but were not, themselves, parties to the litigation.

In 1975, Richard Stein and James Otis undertook the development of an office building known as the Northbrook 500, in Northbrook, Illinois. John Buck and Wesley Irvine, vice-presidents of C&W, a large real estate brokerage company headquartered in New York, were contacted. An agreement was reached whereby Stein, Otis, Buck and Irvine would become partners in the project. Stein and Otis each owned a one-third interest and Buck and Irvine each owned a one-sixth interest in the project. The parties agreed that C&W would be the exclusive leasing agent for the building. Buck and Irvine, vice-presidents of C&W as well as partners in the project, were to be rental managers under the renting Agreement. C&W was to receive certain stated commissions. The Agreement was reconfirmed in August 1976, retroactive to January 1, 1976, when two additional individuals joined and the partnership was changed to a limited partnership.

The Agreement provided in pertinent part as follows:

“THIS RENTING AGENCY AGREEMENT made this 23rd day of August, 1976, between NORTHBROOK 500 LIMITED PARTNERSHIP, an Illinois limited partnership, having an office c/o Richard A. Stein, 208 South LaSalle Street, Chicago, Illinois, 60604, (hereinafter referred to as ‘Owner’), and CUSHMAN & WAKEFIELD, INC., a New York corporation, with local offices at 233 South Wacker Drive, Room 5220, Chicago, Illinois 60606, (hereinafter referred to as ‘Agent’).
1. Owner hereby designates Agent and Agent agrees to serve, as the exclusive Renting Agent in connection with the leasing of the office and commercial space in the Premises for a term of three (3) years commencing September 1, 1976 and ending August 31, 1979, unless earlier terminated in accordance with the provisions hereof.
2. Agent shall use its best efforts in leasing and disposing of office and commercial space in the Premises and in keeping the Premises rented to desirable tenants and, to this end, Agent shall list space in the Premises with its brokers and salesmen and is hereby authorized on behalf of Owner to enlist the services of other real estate brokers. Agent shall, at all times, perform its leasing services hereunder diligently and in a first class manner designed to best protect and promote the leasing of the Premises.
* * *
5. (a) Owner Shall pay Agent on each lease executed and delivered during the term of this Agreement a commission equal to 7% of the ‘Base Lease Rent’, as hereinafter defined, for the first year of such lease, and 2% of the Base Lease Rent, for all years thereafter. On any lease which is procured from an outside broker, a commission of 7% of the Base Lease Rent for the first year and 2% of the Base Lease Rent for the remainder of the term shall be paid to said outside broker, and, in addition, Owner shall pay to Agent a commission (‘Override’) of 2.8% of the Base Lease Rent for the first year of the lease and .8% of the Base Lease Rent for the remainder of the term of such lease. As used herein, ‘Base Lease Rent’ for the first year of a lease shall mean the annual Base Rent as set forth in the Lease executed for space in the Premises. The Base Lease Rent for the remainder of the term of a lease shall mean the total Base Rent for each of the remaining years in the initial fixed lease term of a lease as set forth therein, excluding therefrom any period with respect to which a tenant has a right of lease cancellation. For leases which provide for step-ups, or step-downs of Base Rent during the initial fixed term, Base Lease Rent shall be the sum of the product of each stated annual Base Rent times the number of years such stated annual Base Rent is to be in effect. There shall be excluded from Base Lease Rent rental abatements or ‘take-over’ payments with respect to space formerly occupied by the tenant.
(b) If any lease on which a commission is payable hereunder is re-negotiated prior to the expiration of the original initial fixed term thereof, the commission payable to Agent shall not be affected by such re-negotiation, provided, however, that if the Base Lease Rent under such re-negotiated lease is increased based upon additional space being leased to the tenant thereunder, then Agent shall be entitled to receive a commission equal to 2% of such increase for the remainder of the initial lease term. Said commission shall be payable as hereinafter provided;
(c) In the event a tenant shall exercise an option or right contained in a lease made during the term of this Agreement for a renewal or extension of the Lease, or to lease additional space, Owner shall pay to Agent a commission equal to 2% of the Base Lease Rent payable by tenant during such renewal or extension period; or on account of such additional space;
(d) If any lease with respect to which a commission hereunder is payable contains a cancellation right and if the tenant’s right to cancel expires without being exercised, then Agent shall be entitled to such additional commission on such Lease as it would have earned if the Base Lease Rent for the portion of the lease term with respect to which tenant had a right of lease cancellation had been taken into account when its commission on such lease was originally calculated.”

In June 1976, a revised budget for tenant improvement and a standard “work letter” were approved by the partnership. The work letter defined which tenant improvements would be provided by the partnership as part of the leasing agreement. The tenant improvement budget was $400,000, or approximately $4.12 per square foot of rental space. It appears that a date 18 months after the opening of the building was set as the goal for completing the leasing of the building. Under the Agreement, C&W was the exclusive renting agent for the building.

Sometime in 1977, Combined Insurance Company of America contacted either Otis or Stein regarding the negotiation of a lease. C&W, the leasing agent, was not involved in those negotiations. A lease was subsequently signed by Combined Insurance for rental of one-third of the available space in the building. The lease contained a paragraph naming C&W as the real estate broker responsible for that lease. However, at trial, both Otis and Stein gave unrebutted testimony that C&W had nothing to do with negotiating the Combined Insurance lease.

In December 1977, the partnership became aware that the project was over the $400,000 budget for tenant improvements. In February 1978, Stein, a one-third interest owner, purchased the total one-third partnership interests of Buck and Irvine, and the exclusive Agreement with C&W was severed shortly thereafter. A document entitled Agreement Modifying Renting Agency Agreement (Modification) was signed on February 28, 1978. This agreement modified the original Agreement. Stein testified that he never saw the Modification and that Buck signed on behalf of the partnership. The Modification provided in pertinent part as follows:

“AGREEMENT MODIFYING RENTING AGENCY AGREEMENT
THIS AGREEMENT is made this 28th day of February, 1978, between NORTHBROOK 500 LIMITED PARTNERSHIP, an Illinois limited partnership (‘Owner’, acting by RICHARD A. STEIN, a general partner) and CUSHMAN & WAKEFIELD, INC., a corporation (‘Agent’).
On August 23, 1976, the parties entered into a certain Renting Agency Agreement (‘Renting Agreement’), for the ‘Premises’ described therein. The parties desire to terminate said Renting Agreement as of the day and subject to the provisions hereinafter provided.
THEREFORE, for valuable consideration, each to the other in hand paid, the parties agree as follows:
1. Paragraph 1 of the Renting Agreement is amended by deleting the phrase ‘for a term of three (3) years commencing September 1, 1976, and ending August 31, 1979, ...’ and substituting in lieu thereof ‘for a term ending upon execution and delivery of Leases providing for occupancy of ninety-five per cent (95%) or more of the rentable space of the building ...’.
2. In addition to commissions payable in respect of other Tenants (including any becoming payable by reason of renewals and like matters referred to in paragraph 5) Owner acknowledges that Agent is entitled to and shall be paid a commission on the Lease with Combined Insurance Company of America, in accordance with the provisions of paragraph 5.
In all other respects, said Renting Agreement is ratified and confirmed.”

On March 14, 1978, C&W assigned its interest in the Northbrook 500 project to plaintiff. The assignment agreement stated that upon the consent of the Northbrook 500 Limited Partnership, C&W assigned to plaintiff the Agreement of August 1976 between C&W and defendants. On March 15, 1978, defendant Stein agreed to the assignment on behalf of the partnership.

Plaintiff, thereafter, tried to collect commissions from defendants. Defendants refused to pay and informed plaintiff that the project had suffered financial losses because of C&W’s overexpending on the tenant improvement budget. Plaintiff filed suit to collect the commissions, and defendants counterclaimed for damages for overspending on tenant improvements. The trial court directed a verdict against defendants’ counterclaim, and a jury returned a verdict for plaintiff in the amount of $130,807.12.

Following the jury verdict, plaintiff drafted an order which included $17,551 in prejudgment interest. The trial court entered the order as drafted by plaintiff. Defendants filed a post-trial motion seeking various types of relief, including vacation of the prejudgment interest award. The trial court subsequently vacated its earlier order which awarded the prejudgment interest.

Appeal

Defendants contend that plaintiff was required to plead and prove that its individual brokers, officers and management personnel, as well as those of its assignor, C&W, were all licensed real estate brokers during the time of the exclusive rental agency agreement. They argue that any recovery of commissions by plaintiff is absolutely barred since the complaint did not allege that everyone involved in the leasing activities, including the corporation itself, were licensed real estate brokers. Defendants also argue that it was error for the trial court to allow plaintiff to present evidence after the close of its case in chief to prove compliance with the licensure statute. In support of their arguments, defendants cite the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1979, ch. Ill, par. 5701 et seq.).

Defendants’ argument suggests that plaintiff’s complaint was defective on its face. Yet, in answering the complaint, defendants did not raise the issue of plaintiff’s and its assignor’s nonlicensure as an affirmative defense. We note that defendants raised the issue for the first time at the close of plaintiff’s case when they moved for a directed verdict based on what they asserted was noncompliance with the statute.

The matter of licensure should have been put in issue by the pleadings. Ordinarily, pleading over to a defective complaint constitutes a waiver of the defect. (Dunham v. Dangeles (1978), 67 Ill. App. 3d 252, 255, 384 N.E.2d 836, 838.) If, as defendants suggest, plaintiff should have alleged proper licensure in its complaint, then defendants should have raised the issue as an affirmative defense or in some way put plaintiff and the trial court on notice that the complaint was defective.

The trial court was uncertain as to whether plaintiff had to prove licensure under the statute. The court then exercised its discretion in allowing plaintiff to present proof that the statutory requirements were met. (See Crothers v. La Salle Institute (1977), 68 Ill. 2d 399, 370 N.E.2d 213.) Prior to defendants’ motion for a directed verdict, the trial court had no reason or opportunity to consider the statutory licensure requirement. The trial court avoided making a hasty ruling on defendants’ motion until it was apprised of the facts and the law governing the issue. After hearing plaintiff’s proof, the trial court found that the statutory requirements had been met. We find no reason to disturb the trial court’s ruling.

Defendants next contend that plaintiff failed to introduce sufficient evidence to support the jury’s finding that it was entitled to the total amount of the commissions awarded. More specifically, they assert that plaintiff should have introduced during its case in chief the lease for each unit for which it claimed a commission. Since plaintiff introduced leases for only eight of the 22 units for which the jury awarded commissions, the jury’s award should be reduced to commissions for just those eight units.

We note at the outset that there is no legal requirement that a lease must be introduced into evidence before a commission can be awarded. The question is whether there was sufficient evidence in the record to support the jury’s finding that plaintiff was entitled to the commissions for the leasing of all 22 units. We note also that the parties stipulated to the amount of commissions unpaid at the time of trial and to the admission into evidence of certain invoices on numerous leases other than the Combined Insurance lease. They also stipulated that the building was 95% occupied in July 1978.

According to the terms of the Modification, the parties agreed to terminate the Agreement when the building was 95% occupied. Under the Agreement, C&W, plaintiff’s assignor, was entitled to a commission for all leases executed during the term of the Agreement. The Agreement was in effect from August 1976 to July 1978, when it was terminated according to the terms of the Modification. Plaintiff’s assignor was the exclusive leasing agent during that period and under the Agreement was entitled to a commission for each lease even if the tenant was procured by a broker other than plaintiff’s assignor. The Agreement, given its plain meaning, shows that plaintiff, as assignee, was entitled to a commission for all tenants leasing space in the building during the term of the Agreement.

Additionally, the invoices stipulated to by the parties and admitted into evidence show the amount of unpaid commission, date and term of the lease, space occupied, and amount of rental for each tenant. There was unrebutted testimony at trial that two lists offered into evidence were accurate reflections of the tenants occupying the building during the period of the Agreement for which plaintiff claimed commissions. The billing procedure and payment timetable for the commissions as agreed to by the parties were also submitted into evidence.

While submitting the original copies of the leases for which a commission is claimed might have been the more prudent approach to take, failure to do so does not extinguish plaintiff’s claim. In light of the evidence presented and the stipulations of the parties, there was sufficient evidence from which the jury could find that defendants owed plaintiff the commissions claimed. Under these circumstances, this function was well within the province of the jury. See H. Vincent Allen & Associates, Inc. v. Weis (1978), 63 Ill. App. 3d 285, 379 N.E.2d 765.

Defendants next argue that plaintiff failed to prove that C&W complied with all the material terms of the Agreement. They also contend that plaintiff’s failure to allege in its complaint and to introduce into evidence at trial that C&W used its “best efforts” in leasing the building is fatal to plaintiff’s case. Additionally, defendants argue that plaintiff should have proved as part of its prima facie case that C&W rendered all services pertaining to the leasing of the building and that it negotiated the leases upon terms acceptable to the owner as provided by the Agreement. In other words, defendants claim that C&W failed to perform and, further, that plaintiff failed to prove that certain conditions precedent to the Agreement were performed.

In its complaint, plaintiff pleaded that all conditions required by the Agreement had been performed. Defendants generally denied this in their answer but did not set forth the specific conditions which plaintiff’s assignor, C&W, had failed to perform.

To effectively raise an issue concerning a condition precedent, specific facts should have been alleged in the answer to plaintiff’s complaint. By failing to do so, defendants have waived that issue. (Pioneer Trust & Savings Bank v. Zonta (1979), 74 Ill. App. 3d 614, 616, 393 N.E.2d 548, 551.) It was in this posture that the case proceeded to trial.

At trial, defendants raised the issue of C&W’s noncompliance by failing to use its best efforts; they then moved for a directed verdict on this issue, which was denied. The trial court, however, permitted defendants to present evidence in support of their contention that C&W had not used its best efforts. Plaintiff presented rebuttal evidence. The record is unclear whether any evidence was presented in support of the argument that plaintiff did not prove that C&W rendered all services pertaining to the leasing of the building and that it negotiated leases on terms acceptable to the owner. At the close of all the evidence, the issue was submitted to the jury in the form of a specific question as part of the jury instructions. The jury found in plaintiff’s favor.

A review of the record does not show the jury’s finding to be contrary to the evidence or to Illinois law. We will not disturb that verdict absent a clear showing that it is contrary to the evidence. See La Grange Metal Products v. Pettibone Mulliken Corp. (1982), 106 Ill. App. 3d 1046, 436 N.E.2d 645.

Defendants next argue that the Modification was never assigned to plaintiff; therefore, plaintiff lacks standing to claim a commission on the Combined Insurance lease. They argue that the assignment did not mention the Modification of February 28, 1978, but only dealt with the original Agreement of August 23, 1976. Therefore, the commission for the Combined Insurance lease was never assigned since it is the Modification that grants the commission on that particular lease. We disagree.

The Modification states that it is modifying the original Agreement, and the language makes it clear that both are to be read together. The trial court found that the Modification as well as the original Agreement were to be construed together and that both were assigned to plaintiff.

Defendants’ contention that Buck lacked authority to sign the Modification on behalf of the partnership was not raised in their answer to plaintiff’s complaint. Nevertheless, the trial court had the opportunity to consider it and rejected it. On appeal, defendants offer no novel argument. We agree with the trial court that the language of the Modification and the assignment, given their plain meaning, makes it clear that the Modification and the original Agreement are to be read together and that both were assigned to plaintiff.

Secondly, the jury found from the evidence presented that even if defendant Stein had been responsible for procuring the Combined Insurance lease, as argued by defendants, he was not acting as an outside broker. Therefore, plaintiff was entitled to the full commission of $80,694 and not just a proportionate amount as defendants assert in their alternative argument. The findings of the trier of fact will not be disturbed on appeal unless manifestly against the weight of the evidence. (Northbrook Trust & Savings Bank v. County of Cook (1977), 47 Ill. App. 3d 879, 889, 365 N.E.2d 433, 441.) We find no justification for overturning the jury’s verdict.

We hold, therefore, that there was sufficient evidence from which the jury could find that plaintiff was entitled to all commissions awarded.

Defendants next argue that the trial court improperly directed a verdict against their counterclaim. The counterclaim charged that plaintiff’s assignor breached the Agreement which required it to perform in a “first class” manner and that plaintiff’s assignor failed to follow defendants’ instructions to negotiate leases within the tenant improvement budget. After hearing the evidence presented by defendants, the trial court found the basis of their counterclaim to be that plaintiff’s assignor failed to follow defendants’ instruction to maintain tenant improvements at $4.12 per square foot.

The evidence shows that there was no specific instruction by defendants to C&W, plaintiff’s assignor, that the $4.12 per square foot for tenant improvement was a set amount that could not be exceeded. The amount was an average based on a general estimate. Defendant Otis testified that he never specifically instructed C&W not to exceed $4.12 per square foot per tenant. There is no such written instruction or limitation in the Agreement.

Defendants argue that the counterclaim should have been submitted to the jury notwithstanding the directed verdict against them. We disagree. The thrust of defendants’ counterclaim was C&W’s failure to maintain tenant improvements at $4.12 per square foot. The evidence showed that there was never a contractual agreement between the parties not to exceed that amount. Defendants’ counterclaim seeks to maintain a breach of contract action against plaintiff for something which C&W, plaintiff’s assignor, never contracted to do. We agree with the trial court that since there was never a contract on the amount to be spent, defendants could not establish a breach. Therefore, the counterclaim was insufficient as a matter of law.

We hold, therefore, that the trial court correctly directed a verdict against defendants’ counterclaim and withheld the question from the jury.

Cross-appeal

We now turn to plaintiff’s cross-appeal for prejudgment interest. It argues that there is a statutory right to prejudgment interest because the Agreement is an instrument of writing within the meaning of the statute (Ill. Rev. Stat. 1979, ch. 74, par. 2).

No arguments on the question of prejudgment interest had been presented to the trial court when the order granting such interest was entered. The order entered by the trial court was drafted by plaintiff and included a clause allowing prejudgment interest. Defendants later made a motion to vacate the order. Following a hearing on that motion, the trial court issued an order denying plaintiff’s claim for prejudgment interest. A record of that hearing is not before this court on appeal.

Plaintiff’s argument relies on the fact that the Agreement was an instrument of writing under the statute (Ill. Rev. Stat. 1979, ch. 74, par. 2), which provides as follows:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.”

Plaintiff also argues that Groome v. Freyn Engineering Co. (1940), 374 Ill. 113, 28 N.E.2d 274, supports its theory that the Agreement was an instrument of writing within the meaning of the statute, entitling it to prejudgment interest. We disagree.

Groome was an action in equity, and the court implied that the agreement between the parties was an instrument of writing under the statute and allowed prejudgment interest. However, the facts of that case are inapposite to the case at bar. The court in Groome stated that under the particular facts of that case equity dictated an award of interest on the amount owed. That principle is not applicable to the facts of this case.

Absent an express agreement between the parties, allowance of prejudgment interest is permitted by statute (Ill. Rev. Stat. 1979, ch. 74, par. 2) if the amount due is a fixed amount or easily computed. (See Stevenson v. ITT Harper, Inc. (1977), 51 Ill. App. 3d 568, 366 N.E.2d 561.) Therefore, even if the Agreement in this case meets the statutory requirement for an instrument of writing, it must also satisfy the requirement of a fixed or readily ascertainable amount. The commission sought by plaintiff was disputed by defendants. The dispute was finally resolved by the jury’s award. The amount of the commission was dependent upon many factors such as amount of rent, length of the lease, and the procuring broker (see paragraph 5 of the Agreement).

The trial court heard the argument of the parties and determined that plaintiff did not meet the requirement for prejudgment interest. Our analysis of the facts and the statutory requirement, as well as case law, show no error or abuse of discretion by the trial court.

We hold that the trial court did not err in its denial of plaintiff’s claim for prejudgment interest.

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

Affirmed.

LINN and JIGANTI, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN C. NEAL, Defendant-Appellant.
    Second District
    No. 82—335
    Opinion filed February 22, 1983.
    Rolfe F. Ehrmann, of Dixon, Morin, Ehrmann & Gehlbach, of Dixon, for appellant.
    Eugene Stockton, State’s Attorney, of Dixon (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Defendant appeals his conviction for the murder of his wife. His sole contention on appeal is that the trial court committed reversible error in refusing to give his tendered instructions on voluntary manslaughter. The facts necessary to a determination of this question are as follows.

In August 1980 defendant and his wife, Karren, were married. It was a second marriage for both, and each had two children from the prior marriage. Defendant’s children lived with his former wife, from whom he had obtained a bitter divorce in fall 1979, and Karren’s 19-year-old daughter Kandy had lived with them when they were first married but was not living with them at the time of the offense. Defendant testified that he had experienced child-visitation problems, which were alleviated about six months prior to the shooting.

Defendant testified at trial that on July 29, 1981, he had some problems at work and decided that he would see the regional vice-president about the transfer that he had requested several months earlier. He discussed the events of the day and the possibility of a transfer with Karren over dinner, and, as in prior discussions on this topic, Karren was negative about it. After dinner, Kandy called about her car battery problems, with which she had had defendant come out and help her earlier in the day.

That evening, Kandy and her boyfriend came over and visited. While defendant and Kandy’s boyfriend were out to get some beer, Karren suggested that her daughter move back with them but Kandy refused for the time being. Karren did not say anything that evening about moving but had mentioned it on other occasions. Kandy and her boyfriend left at about 10:30 p.m.

Thereafter, an argument ensued between defendant and Karren. The argument began about the number of checks written; then, they argued about defendant spending the money on drinking, which he first denied and then said he had been drinking more than he should have because of his pain (due to headaches resulting from two laminectomies and a sinus condition). The bulk of the argument concerned the job transfer and Karren’s purchase of items for the house from her place of employment. She said she would quit buying those things but she did not want to move. She suggested that he get a job with a different company to stay in the area and that they live off of her income, including payment of his child-support obligations.

Shortly thereafter, defendant decided the argument was not accomplishing anything and that he would leave. He got out two keepsakes, a cup and a shotgun, to take with him. At one point thereafter, defendant said he was leaving, Karren responded that he was always leaving, and the argument continued. At some time, Karren went to bed and defendant began to shave. He looked in the mirror and became “totally disgusted with [himself] and the day and everything else.” He went into the bedroom and “thundered” at Karren about the car battery, thus beginning the argument anew. At that point, Karren got out of bed and went into the living room.

She told defendant that he treated her worse than her former husband ever did. She claimed that “you don’t love a woman like a woman loves” or “part of you nobody will ever have or own,” and John responded, “there’s a part of me nobody will ever own *** no corporation, no woman, or child.” In anger Karren asked if he had treated his former wife the same way, and she then declared, “I’m going to call her and see if you treated her this way.” John protested that his former wife should not be bothered. When Karren proceeded to the kitchen phone, John offered her his wedding band, which she refused, and she picked up the phone.

John then went into the bedroom to get traveler’s checks, his wallet, keys and change. Those items were on a chest of drawers next to two shotgun shells. He put the other items in his back pocket and took one shell, returned to the living room, picked up the shotgun instead of leaving, apparently loaded it, went around the corner to the kitchen doorway and shot from the hip, striking Karren in the chest as she sat on a chair next to the wall phone.

In his statement to police following the shooting, John said that, at the time he fired the weapon, he told Karren, “make your peace.” In any event, Karren never responded before being killed. Apparently, he then unloaded the gun and called an ambulance, stating, “I shot my wife” and “I’m going to try to keep her alive until you get here.” He then laid her flat on the floor, and the responding firemen observed him over Karren’s body apparently administering C.P.R.

Both before and after receiving Miranda warnings, defendant kept repeating that he had shot his wife, and he told police officers that he was sorry he had done it. A tape-recorded confession was taken at the police station on the night of the offense and played to the jury at trial. At the close of all of the evidence, the defense tendered jury instructions and verdict forms on voluntary manslaughter, but the trial court refused them and instructed the jury only on the charge of murder. Defendant was found guilty as charged.

Jury instructions on voluntary manslaughter are not always proper in every case in which some provocative conduct on the part of the deceased prior to the killing is alleged. In determining whether such instructions should be given over objection, as in the case at bar, the trial court must decide if enough evidence of serious provocation had been presented to even put the issue to the jury. In Illinois, the initial burden of going forward with “some evidence” is upon the defendant who seeks to assert the voluntary manslaughter defense, and, where the circumstances fail to show even “some evidence” of serious provocation, voluntary manslaughter instructions are properly denied. (People v. Seaberry (1978), 63 Ill. App. 3d 718, 721-22.) In order to require the giving of the tendered instructions, defendant’s voluntary manslaughter theory of defense to the murder charge may have a very tenuous evidentiary foundation, but it must be of such a nature that, if believed by the jury, it would reduce the crime of murder to voluntary manslaughter. See People v. Dortch (1974), 20 Ill. App. 3d 911, 914.

In this case, defendant argues that the evidence of his four-hour argument with the victim, which he characterizes as a marital breakup, and of the victim’s statement of intent or actual attempt to telephone defendant’s ex-wife at 2:50 a.m., which would injure defendant by embarrassing, humiliating and degrading him before his ex-wife and by exacerbating his child-visitation problems, sufficiently showed provocation to warrant the giving of the instructions.

The State and defendant agree that, as a general rule, mere words are not sufficient provocation to establish voluntary manslaughter. (E.g., People v. Simpson (1978), 74 Ill. 2d 497, 502; People v. Ahlberg (1973), 13 Ill. App. 3d 1038, 1040.) This is true of language however aggravated, abusive, opprobrious or indecent. (People v. Matthews (1974), 21 Ill. App. 3d 249, 253, citing People v. Marrow (1949), 403 Ill. 69, 75.) On appeal, as in the trial court, defendant seeks to avoid the application of this rule by characterizing the facts of the instant case as a heated verbal exchange that reached the level of mutual quarrel or combat. It is well established that mutual quarrel or combat can be sufficient to support a finding of serious provocation. E.g., People v. Crews (1967), 38 Ill. 2d 331, 335; People v. Wesley (1978), 65 Ill. App. 3d 25, 30; People v. Matthews (1974), 21 Ill. App. 3d 249, 253.

There was no mutual combat here. Mutual combat is a fight or struggle which both parties enter willingly or in which two persons, upon a sudden quarrel, and in hot blood, mutually fight upon equal terms and death results from the combat. People v. Matthews (1974), 21 Ill. App. 3d 249, 253.

Even if we were to agree that the argument between the defendant and his wife could be characterized as a mutual quarrel, the critical question remains whether her conduct as a participant in the mutual quarrel reached the level of serious provocation that is required to reduce the killing to manslaughter. (People v. Robles (1975), 30 Ill. App. 3d 335, 336-37; People v. Tucker (1971), 3 Ill. App. 3d 152, 155.) The conduct must be sufficient to excite an intense passion in a reasonable person. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(a).) The test is objective, not subjective. The inquiry is not as to whether this defendant was angry at someone or about something at the time he shot and killed the deceased. The question to be asked is whether there existed such provocation on the part of the decedent as would have caused the state of mind claimed in an ordinary person under the same circumstances. The provocation must be proportionate to the manner in which the accused retaliated, and the crime is murder when the accused attacked the deceased with violence out of all proportion to the provocation especially where, as here, the homicide was committed with a deadly weapon. People v. Matthews (1974), 21 Ill. App. 3d 249, 252-53.

Defendant cites several cases where a homicide followed a quarrel and the evidence was or was not sufficient to justify a voluntary manslaughter instruction, and he cites several other such cases where the voluntary manslaughter issue went to the trier of fact and the evidence was or was not sufficient to sustain the finding of the trier of fact on the issue of the sufficiency of the conduct as serious provocation. While some of these cases more closely approximate the circumstances here than others do, none are on all fours with the facts of the instant case, and a number of these cases have additional elements, e.g., threatened or actual physical attack on defendant, his family, or property, not present here. People v. Griswold (1950), 405 Ill. 533 (giving manslaughter instructions was warranted by the evidence where decedent had, on the night of the shooting, as she had on several other nights, stayed out all night, and a heated quarrel arose on the subject and upon her failure to answer defendant’s repeated inquiries as to her whereabouts); People v. Stepheny (1966), 76 Ill. App. 2d 131 (facts that decedent and defendant exchanged harsh words in a quarrel of some duration over the betting in a crap game and that decedent was shot when he offered to make a bet with defendant after defendant warned him not to try to bet with him again formed a basis for the provocation necessary to reduce the charge to voluntary manslaughter); People v. Rice (1933), 351 Ill. 604, and People v. Robles (1975), 30 Ill. App. 3d 335 (evidence of sufficient provocation to reduce the charge to voluntary manslaughter existed where an argument was caused by decedent’s conduct involving defendant’s child); People v. Tucker (1971), 3 Ill. App. 3d 152 (where decedent kept argument going, defendant tried to retreat, and decedent followed him, beat on his car windows and bent the car’s antenna prior to the shooting, there was evidence of sufficient provocation to reduce the charge to voluntary manslaughter).

Defendant also gives many reasons for his preexisting frame of mind other than the actions by the deceased and cites several cases where this element was significant. People v. Newberry (1970), 127 Ill. App. 2d 322 (where the defendant was already in a depressed emotional state, told decedent that he would commit suicide one day, and decedent replied in an obscene manner, telling him that she did not care what he did, the court found that her attitude and the nature of her reply sufficiently aroused and impassioned the defendant considering his preexisting emotional state); People v. Ahlberg (1973), 13 Ill. App. 3d 1038, 1041-42 (the cumulative effect, over a five-day period, of defendant’s wife’s absence, his fruitless searching for her whereabouts, her retention of counsel for the purpose of obtaining a divorce, and her slurring remarks as to his masculinity and announcement that she had found another man created a state of provocation so that the defendant killed her in a “frenzied state of passion”).

In the present case, defendant testified, both he and his wife had had a bad day at work; he had experienced a difficult divorce, continuing problems with his ex-wife and child-visitation problems alleviated some six months prior; and he and his wife had argued several times before about her buying things for the house and her reluctance to move with him to a transfer in job location. However, some of these events are too remote to the time of the shooting to be supportive of defendant’s claim (see People v. Collins (1976), 43 Ill. App. 3d 553, 555) and, aside from defendant’s statement that he never felt like that before, the record does not support his claim on appeal of uncontrolled rage and frenzy arising from this combination of circumstances. Compare People v. Ahlberg (1973), 13 Ill. App. 3d 1038.

In summary, the evidence in this case showed that defendant initiated the quarrel, and he kept it going after the deceased retreated from it; there was no indication of physical harm or threat thereof; defendant threatened to end the marital relationship, which the victim refused; defendant went to the bedroom for the shell, returned to the dining room, loaded the shotgun and then fired at his wife in the kitchen (see People v. Miller (1981), 96 Ill. App. 3d 212, 215 (defendant’s actions in removing the shotgun from his car trunk, loading it and cocking it bespeak deliberation and malice indicative of the mem rea necessary for a murder conviction)); and defendant appeared to other witnesses after the act to be calm and cooperative and he had good recall of the evening’s events, strongly contrary to his claim of frenzied passion (compare People v. Ahlberg (1973), 13 Ill. App. 3d 1038, 1041).

Passion on the part of the slayer, no matter how violent will not relieve him from liability for murder unless it is engendered by a serious provocation which the law recognizes as being reasonably adequate. If the provocation is inadequate, the crime is murder. People v. Matthews (1974), 21 Ill. App. 3d 246, 253.

While the doctrine of provocation is intended to be a compassionate one, based upon a recognition of human frailty (People v. Crews (1967), 38 Ill. 2d 331, 336), it is not without limits. While very slight evidence on a voluntary manslaughter theory of defense to a murder charge will justify the giving of an appropriate instruction (People v. Dortch (1974), 20 Ill. App. 3d 911, 914), that evidence must demonstrate more than slight provocation. Where the record fails to present evidence of serious provocation sufficient to excite a reasonable man to intense passion, the instruction is properly refused. (People v. Simpson (1978), 74 Ill. 2d 497.) From our review of all the evidence in this case considered in the light most favorable to the defendant, we conclude that the conduct of the victim concerning her quarrel with the defendant, including her conduct with regard to the phone call, was, as a matter of law, insufficient to constitute the serious provocation necessary to reduce the defendant’s murder of his wife to voluntary manslaughter. The trial court did not err in refusing the voluntary manslaughter instruction tendered by defendant.

The judgment and sentence of the trial court is affirmed.

Affirmed.

HOPF and UNVERZAGT, JJ., concur.


author: JUSTICE SCOTT

text:
    BRENDA K. CARRIGAN, a/k/a Brenda K. Nunn, Plaintiff-Appellee, v. NEW WORLD ENTERPRISES, LTD., et al., Defendants-Appellants.
    Third District
    No. 82—221
    Opinion filed February 17, 1983.

      Jeffrey W. Jackson and George D. Browning, both of Westervelt, Johnson, Nicoll and Keller, of Peoria, for appellants.
    Richard L. Steagall and John P. Nicoara, both of Peoria, for appellee.
   JUSTICE SCOTT

delivered the opinion of the, court:

Brenda K. Carrigan, formerly known as Brenda K. Nunn, the plaintiff, filed suit against the defendants, New World Enterprises, Ltd., and Layco, Inc. The plaintiff’s action against the defendants, who were her landlord and its agents, was for injuries received from being raped, which she alleged resulted from defendants’ failure to repair a burglar alarm located in her apartment. After trial by jury the plaintiff was awarded $125,000 in compensatory damages and $50,000 in punitive damages.

The plaintiff entered into a one-year lease of an apartment in a large (108 units) complex of apartments and condominiums. A provision of the lease provided that “the lessee shall give the lessor prompt notice of any defects in or accidents to the water or steam pipes, electric wiring, heating or air conditioning apparatus or any other part of the leased premises, in order that the same may be repaired with due diligence.” Prior to signing the lease the plaintiff was shown the apartment and Gerald Law, principal shareholder and officer of Layco, and Carolyn Tindall, an officer of New World and an employee of Layco, emphasized, inter alia, that a burglar alarm was located in the apartment. A salés brochure distributed to prospective tenants or purchasers of the units in the complex emphasized that the units included a fire and smoke detector and an electronic security alarm system with an individual master control for each switch.

During the evening of July 25, 1980, plaintiff spent the evening with some girlfriends in Peoria, celebrating the birthday of one of them. She left a downtown steakhouse at approximately 2:30 a.m. and arrived at her apartment complex at approximately 3 a.m. Upon opening her apartment door she heard some keys or tapping noise which she thought was caused by her then live-in boyfriend, Terry Carrigan, and who was later to be her husband. She called out to Terry Carrigan but received no response. Walking down the hallway leading to her bedroom she encountered her assailant. At gunpoint she was led to an automobile, put into the vehicle’s trunk and taken to an unknown place where she was twice raped. In a manner not germane to the appeal, the plaintiff made her way to her sister’s house, where the Peoria police were notified.

A removed screen and pry marks on a first-floor window indicated that the assailant gained entry to the apartment through the window. At trial, everyone agreed that the burglar alarm in plaintiff’s apartment was not operable at the time plaintiff was abducted. If operable it would have emitted an audible sound. Testimony regarding the time when the defendants knew that the alarm was inoperable was contradictory. On direct examination plaintiff testified that the alarm in her apartment had not worked for six months prior to the assault and that the defendants had knowledge of this fact. On cross-examination plaintiff admitted submitting a note to Layco’s resident manager, Carolyn Tindall, on June 26, 1980, or one month before the abduction, which stated:

“Carolyn, I finally checked my alarm last night and found it does not work. Do you remember when you told me there were parts taken out of a few of them and never put back? Maybe mine is one of them. Could you have someone look at it?”

The plaintiff testified that she would not activate the alarm every time she left the apartment. Terry Carrigan, who had moved in with the plaintiff in May or June of 1980, testified that he had set the alarm a couple of times but as a general rule he would not activate the alarm. He further testified that before moving in with the plaintiff neither he nor plaintiff normally activated the alarm.

Before directing attention to the issues presented in this appeal, we note that taken with the case was a pleading filed by the plaintiff entitled “Application to Amend Complaint to Conform to Proof.” Objections to this pleading were filed by the defendants. We grant plaintiff’s application or motion to amend complaint to conform to proof. The third complaint of the plaintiff as amended alleges that defendant had actual knowledge of the availability of repairs to the alarm system and that defendant had constructive knowledge of 15 entities listed in the Peoria telephone book which related to burglar alarms. Secondly, the third amended complaint as amended alleges notice to the defendants that plaintiff’s alarm was not working in late January 1980 rather than in late May, and that defendants had more notice both orally and in writing of the inoperable alarm than which was alleged in the third amended complaint.

We first address the issue raised by the defendants, which is that the plaintiff's complaint as amended fails to state a cause of action since it attempts to impose a duty upon the defendants which is not recognized by the Illinois courts. Stated in the context of the facts as established by the evidence, it is plaintiff’s theory that the defendants breached their duty to repair the burglary alarm, thereby permitting the rapist to enter the plaintiff’s apartment by prying open a window, after which he abducted the plaintiff and raped her.

Whether the plaintiff’s theory should be rejected or accepted can only be determined after a careful examination of the case law relating to a landlord’s duty to protect persons on his premises (in this instance a tenant) against criminal activities of third persons. The general rule in Illinois is that a landlord does not owe a tenant a duty to protect him from criminal acts. (See Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E. 596.) In a case strikingly similar to the instant case, this general-rule was applied. (See Stelloh v. Cottage 83 (1964), 52 Ill. App. 2d 168, 201 N.E.2d 672.) In Stelloh a 69-unit apartment building was involved and the landlord provided a private police force for the protection of the tenants. The police force was represented to the tenants “as giving a special and added protection to the security and safety of the occupants.” (52 Ill. App. 3d 168, 170, 201 N.E.2d 672.) The plaintiff Stelloh was a tenant in a first-floor apartment. In the housing project there had been a series of break-ins, burglaries and rapes which were known to the defendant. On August 31, 1960, underneath the window of plaintiff’s apartment, an individual was arrested for carrying a concealed knife. The defendant failed to warn the plaintiff of possible danger or provide protection for her and on September 23, 1960, the individual who had previously been arrested entered plaintiff’s apartment through the window and raped her. Plaintiff Stelloh filed suit for damages on the theory that the defendant knew or should have known that plaintiff was in a position of danger and that by employing a private police force, defendant assumed a duty to warn plaintiff and to use reasonable care to protect her from criminal activities.

The appellate court affirmed the trial court’s judgment dismissing the plaintiff’s complaint. The reviewing court held that no duty was alleged in the complaint, stating:

“The undertaking alleged (that defendant’s private police would give a special and added protection to the securing and safety of its tenants) cannot reasonably be construed as insuranee of absolute protection against crime. Even the assignment of an armed personal bodyguard with full police authority (which defendant did not have) could not guarantee such a result.” 52 Ill. App. 3d 168, 171, 201 N.E.2d 672, 673.

In the instant case, as in Stelloh, we have a landlord who voluntarily provided burglary alarms and the presence of the device was emphasized to prospective tenants. Also in the instant case, as in the case of Stelloh, the plaintiff was raped and seeks to impose an absolute duty upon the defendants to protect her from such criminal act. The installation of burglary alarms cannot be construed as absolute protection against crime. Even if the alarm had been operable, it can only be speculated that the plaintiff would have made it operable on the night the crime occurred and again one must engage in speculation that when the rapist activated the alarm he would have fled.

It has been held that where plaintiff brought action against landlord to recover damages for injuries received when she was shot by an intruder who entered her apartment, robbed her and attempted to rape her, that the trial court’s order dismissing the complaint for failure to state a cause of action was correct even though it alleged the landlord, after having knowledge of needed repairs, failed to repair door locks in common areas, to-wit, window locks and broken windows. See Martin v. Usher (1977), 55 Ill. App. 3d 409, 371 N.E.2d 69.

In Martin the reviewing court, relying on the case of Trice v. Chicago Housing Authority (1973), 14 Ill. App. 3d 97, 302 N.E.2d 207, noted with approval from that case the statement, “ ‘To impose liability in the case before us would unjustly place upon defendant as a property owner a legal duty which is impossible of performance.’ ” (55 Ill. App. 3d 409, 410-11, 371 N.E.2d 69, 70.) In Martin the plaintiff sought recovery for alleged malfunctioning locks. Both a lock and a burglar alarm are used for protection, and there is no basis for a different application of the law in such cases.

In a comparatively recent case the Appellate Court, Fifth District, was confronted with a situation where a negligence action was brought against shopping mall owners by customers who were assaulted in the mail’s parking lot by a third party. Summary judgment was entered by the trial court in favor of the owners, and this judgment was sustained by the reviewing court which held, inter alia, that owner’s knowledge of shoplifting and thefts which had occurred on the premises was not sufficient to give rise to a duty to protect customers from assaults by third persons, and the fact that owners agreed to provide security personnel under the common areas care and maintenance clause in their lease with store owners could not be construed as a voluntary undertaking to protect all shopping mall customers from criminal attacks. (See Taylor v. Hocker (1981), 101 Ill. App. 3d 639, 428 N.E.2d 662.) We find pertinent to the determination of the instant case the following language in the court’s opinion in the case of Taylor.

“Finally, relying on Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596, the plaintiffs maintain that defendants had a duty based upon a voluntary contractual undertaking. In Pippin, our supreme court held that a security services corporation was liable for harm suffered by criminal attacks on premises owned and operated by the Chicago Housing Authority where the corporation specifically agreed to provide ‘ “*** protective services for the purpose of guarding [the Authority’s] properties *** and protection of persons thereon.” ’ (Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 207, 399 N.E.2d 596, 599.) Here, the plaintiffs’ claim is based upon the ‘Common Area Charge’ clause of the lease defendants entered into with the lessees of the various stores in the shopping center. This provision placed responsibility upon defendants for maintaining security personnel in, on, and about the Common Areas. It is evident that the undertakings alleged in Pippin and in the present case are dissimilar. In the instant case, when broadly interpreted, the lease provision relied upon by the plaintiffs does not, as in Pippin, provide for the protection of third persons from criminal attacks.” 101 Ill. App. 3d 639, 643-44, 428 N.E.2d 665-66.

The briefs of the parties to this appeal are replete with citations of cases relating to a landlord’s duty to protect tenants from criminal acts by third parties. The cases heretofore set forth, to-wit, Stelloh, Martin and Taylor, involved, respectively, in Stelloh the employment of a private police force for added protection to tenants and failure to warn, in Martin broken door and window locks, and in Taylor the failure of" security personnel hired to maintain security measures in common areas to prevent harm to all shopping mall customers. The common thread running throughout these cases is that the reviewing court recognized that the landlords undertook to provide measures which would provide added protection from crime to their tenants. The acts of the landlords rose from contractual obligations and did not constitute a voluntary undertaking to protect tenants from harm from third persons or to provide security to certain areas.

Among the cases cited by the plaintiff in support of her contention that her complaint states a cause of action are four involving the Chicago Housing Authority: Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596; Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472; Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 431 N.E.2d 1038; and Stribling v. Chicago Housing Authority (1975), 34 Ill. App. 3d 551, 340 N.E.2d 47. In Pippin our supreme court held that a security services corporation was liable for harm suffered by criminal attacks on premises owned and operated by the Chicago Housing Authority where the corporation specifically agreed to provide protective services for the purpose of guarding the authority’s properties and the protection of persons thereon. Our supreme court held that the Chicago Housing Authority did not have a duty to protect social guests and its duty was limited to the use of reasonable care in engaging corporations to provide guard services and thus could be liable at the most for the negligent hiring of corporations.

In Cross the plaintiff was injured by assault at the housing project. The plaintiff sued the Chicago Housing Authority and a security service which had contracted with the authority to provide guard services. The security service provided protection between 9 a.m. and 1 a.m. The plaintiff was assaulted at 1:15 a.m. after the guards had left the premises. Our supreme court held that the housing authority, which undertook to provide part-time guard service at the project, was obligated to use reasonable care not to create increased dangers to persons lawfully on its property and a complaint stating that the part-time guard service substantially created the incidence of crime after 1 a.m., and that the ahthority was aware of such upsurge of criminal activity and negligently took no action to provide protection from it, stated a cause of action on which relief could be granted.

In Phillips the plaintiff sued the Chicago Housing Authority for the wrongful death of plaintiff’s decedent, a minor daughter, which occurred on a floor of a building which was allegedly closed off and made secure by the authority in order to prevent the commission of crimes which had occurred in such area a long time prior to the minor’s death. Our supreme court sustained a complaint which alleged that the authority had voluntarily undertook to secure certain floors and had performed the undertaking negligently.

In Striding, plaintiffs alleged that the Chicago Housing Authority allowed free and unhindered access to vacant apartments and that their apartment was burglarized upon three occasions and that each time entry was made by breaking through a wall connecting plaintiffs’ apartment with a vacant adjacent apartment. The reviewing court held that the defendant owed plaintiffs a duty to guard against the second and third burglaries because defendants had notice of the original burglary and the means used in effecting the same. The court, however, found no such duty regarding the first burglary even though plaintiffs alleged it was due to defendant’s failure to secure the vacant apartments when it knew of unauthorized persons on the premises.

In examining the foregoing we find that a limited duty has been imposed on the landlord in certain situations. In Pippin it was held that a security corporation could be liable where it assumed the duty of protecting of persons on property which it had undertaken to guard. The landlord’s liability was limited to any negligence committed by it in hiring the service. In Cross it was established that a landlord can be liable for creating an increase in danger to persons lawfully on its property. In Phillips the landlord’s alleged negligence which stated a cause of action was to allow criminals access to portions of an apartment building. In Stribling intruders used the same access to plaintiff’s apartment on three occasions.

We further note that the plaintiff strongly urges that the case of Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769, is supportive of her contention that her complaint states a cause of action. Our supreme court in Nelson held that a general contractor’s compensation liability insurer, which gratuitously undertook to make safety inspections of project, was not immune from suit for personal injuries resulting from a hoist which fell. The thrust of the holding in Nelson is that liability can arise from the negligent performance of a voluntary undertaking. This principle of law set forth in Nelson was relied upon in Pippin to hold the landlord liable to a limited extent, to-wit, for any negligence committed in hiring a security service for guard purposes. The principle was again recognized and relied upon by our supreme court in the case of Phillips to hold the landlord liable. In Phillips the extent of the landlord’s voluntary undertaking was to close off and secure certain floors to prevent the commission of crimes. The plaintiff has attempted to apply the law of Nelson to the factual situation in the instant case. To do so would result in a tortuous path of reasoning, for the record before us is devoid of any evidence which would show that the defendants assumed a duty to protect the plaintiff from injury. The insurer in Nelson by his investigation assured the injured parties that they were safe. The defendant in the instant case made no such assurance.

The defendants installed a burglar alarm and at the most had a contractual obligation to keep the same operable. The defendants did not voluntarily or contractually promise the plaintiff that she would be protected from criminal harm by third parties. If liable, the liability of the defendants is limited to those damages foreseeable by the breach of their duty to repair the burglar alarm, to-wit, the cost of paying an alternative repairman. The contractual breach would not entail damages for harm caused to the plaintiff by the intervening criminal act of a third party.

The plaintiff’s complaint fails to allege facts that would establish that the inoperable burglar alarm was the proximate cause of the harm inflicted upon her. The evidence also fails to show that the defendants’ acts or omissions to act were the proximate cause of the harm. It is apparent that plaintiff’s theory is that if the alarm had been operable it would have been activated when the assailant pried open a window, thereby frightening him to the extent he would have fled. To accept this theory it would be necessary to engage in speculation and conjecture. Would the plaintiff or her boyfriend have set the alarm on the night in question? Would the assailant have been frightened and fled or did he by prior surveillance know that the apartment at the time of his entry was vacant? The answers to these questions can only be speculated. A case similar to the instant case is Libby, McNeill & Libby v. Illinois District Telegraph Co. (1938), 294 Ill. App. 93, 13 N.E.2d 683. We will not engage further in setting forth an analyzation of a cited case; however, Libby deals precisely with a proximate cause question such as the one present in the instant case and we believe it is controlling. Libby held that a jury should not be permitted to speculate as to questions of fact and that where precise cause of plaintiff’s loss is left to conjecture, then plaintiff cannot recover, and evidence should not be submitted to the jury.

For the reasons set forth the judgment of the circuit court of Peoria County is reversed.

Reversed.

BARRY, P.J., and HEIPLE, J., concur.


author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANKLIN D. BRIGGS, Defendant-Appellant.
    Third District
    No. 82—510
    Opinion filed March 4, 1983.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, and Charles M. Schiedel, of State Appellate Defender’s Office, of Springfield, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of. the court:

The defendant, Franklin Briggs, was convicted following a jury-trial of possession of less than 30 grams of a substance containing cocaine. He appeals from his conviction, alleging that he was not proved guilty beyond a reasonable doubt and that the court erroneously refused a jury instruction tendered by the defendant. A brief statement of facts is given to facilitate discussion of the issues.

On February 2, 1982, Rock Island police officers Louis Fetes and Sergeant Neal Ford entered the Big Dipper Tavern. Fetes proceeded immediately to the tavern’s restroom. As he entered the restroom, Fetes observed the defendant, who was bent over the left portion of the sink, and another man standing in the corner of the room facing .the door. Fetes testified that he approached the defendant and heard a scratching, clicking noise. Officer Ford entered the restroom at this time. Fetes asked the defendant what he was doing. The defendant turned and said, “Nothing.” As the defendant turned, Fetes observed a small plastic card slide into the sink. A white, powdery substance, later determined to contain cocaine, was in lines on the left portion of the sink.

Fetes retrieved a small plastic card from the sink. The only fingerprint found on the card was not the defendant’s. Although the defendant denied that the powder was his, he was arrested and searched. The officers found no containers or packages on the defendant. The other individual in the room was questioned and then left the restroom. At the time of the arrest, the sink over which the defendant was leaning was completely dry.

Sergeant Ford entered the restroom shortly after Officer Fetes. He observed the defendant leaning over the sink and the other man in the corner. He heard the conversation between Fetes and the defendant but did not see the plastic card until it was retrieved from the sink.

The defendant testified that' there was another person in the restroom when he entered. He asked this person to excuse him while he patted down his hair. He first became aware of the powder on the sink and the plastic card when Officer Fetes confronted him. He stated that he planned to turn the water on after patting down his' hair.

Officer Fetes’ testimony was impeached with his original report of the incident, which contained no references to the fact that the defendant was bent over the sink or to any clicking noises. The defendant’s testimony was impeached by prior convictions for uttering and publishing and delivery of heroin.

During the conference on jury instructions, the defendant asked that the jury be given the entire instruction on circumstantial evidence, Illinois Pattern Jury Instruction, Criminal, No. 3.02 (2d ed. 1981) (hereinafter IPI Criminal). The court refused the second paragraph of that instruction. The jury deliberated eight hours before finding the defendant guilty.

The defendant first asserts that he was not proved guilty beyond a reasonable doubt. Specifically, he contends that the State failed to prove actual possession of the cocaine. We disagree. In order to sustain the conviction in the instant case, the State had to show that the defendant had knowledge of the presence of the drugs and that the drugs were in his control. (People v. Bell (1972), 53 Ill. 2d 122, 290 N.E.2d 214.) Possession of narcotics may be actual or constructive. Actual possession requires an act of physical dominion over the narcotics. People v. Calhoun (1977), 46 Ill. App. 3d 691, 361 N.E.2d 55.

We conclude that on the facts presented by the case at bar, the trier of fact could have found that the defendant exercised dominion over the cocaine. Whether there was possession is a question of fact to be determined by the jury, and its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt. People v. Calhoun (1977), 46 Ill. App. 3d 691, 361 N.E.2d 55.

Officer Fetes testified that he saw the defendant bent over just 10 inches from the sink. He heard scratching sounds and subsequently saw the plastic card slide into the sink. According to his testimony, Fetes was very close to the defendant at the time he heard the noises and saw the card. His testimony was confirmed by Sergeant Ford. Whether the testimony of the officers was sufficient to establish possession was a question of fact for the jury. The evidence is neither palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt. The defendant was proved guilty beyond a reasonable doubt.

The defendant also argues that it was error for the court to refuse the second paragraph of IPI Criminal No. 3.02 pertaining to circumstantial evidence. The paragraph in question reads:

“You should not find the defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence.”

Both paragraphs of IPI Criminal No. 3.02 need be given only where all of the evidence against the defendant is circumstantial (People v. Marion (1980), 87 Ill. App. 3d 1038, 409 N.E.2d 533.) In the case at bar, the testimony of the police officers was direct evidence. The refusal by the court of the second paragraph of the instruction was therefore proper.

For the above stated reasons, the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

ALLOY and BARRY, JJ., concur.