author: JUSTICE LINN

text:
    BANK COMPUTER NETWORK CORPORATION, Plaintiff-Appellant, v. CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO et al., Defendants-Appellees.
    First District (4th Division)
    No. 81—2205
    Opinion filed November 12, 1982.

      Bowles, Becker & Levine, Ltd., of Chicago (Allan I. Becker, Clyde 0. Bowles, Jr., William A. Von Hoene, Jr., and Karen Taylor-Collen, of counsel), for appellant.
    Alan N. Salpeter, Janet L. Reed, and Paula J. Morency, all of Mayer, Brown & Platt, of Chicago, for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Bank Computer Network Corporation (Bankcom), brought this action in the circuit court of Cook County claiming that defendants, Continental Illinois National Bank (Continental) and one of its vice-presidents, Patrick Goy (Goy), improperly setoff funds in Bankcom’s checking account against a debt owed by Bankcom to Continental on two promissory notes. Continental counterclaimed, seeking judgment for the balance due on the same promissory notes. Following extensive discovery on both sides, Continental moved for summary judgment on all four counts in Bankcom’s complaint and on its own counterclaim. The trial court granted both motions.

Bankcom appeals, claiming that the trial court erred in entering summary judgment on behalf of Continental and Goy because Bankcom had raised genuine issues of material fact on each of the counts in its complaint. After examining the pleadings, the extensive legal memoranda, and the voluminous depositions, affidavits, and transcripts of oral argument, we find that a genuine issue of material fact on Bankcom’s claim of promissory estoppel does exist; therefore, the entering of summary judgment on that issue in favor of Continental and Goy was improper. Accordingly, with respect to that issue, we reverse and remand.

Facts

Bankcom is a publicly owned corporation primarily engaged in the development and manufacture of automatic banking machines. As part of its growth strategy, it became a corporate customer of Continental in 1974. Among the various banking relationships maintained by the two parties were a corporate checking account, a frequently utilized line of credit, and other individual loan arrangements. As of October 1, 1977, Bankcom had a $150,000 outstanding loan due Continental. On October 31, 1977, following the receipt of an extension on the loan, Bankcom executed an unsecured promissory note (the October note) for the $150,000 plus interest, due on January 30,1978.

In November of the same year, Bankcom requested an additional loan of $100,000 from Continental to finance the continuing development of a new automatic teller machine, the “Bankette.” Continental initially denied this request but later agreed to lend Bankcom $50,000, in return for which Bankcom executed a second unsecured promissory note (the November note) due on February 13, 1978. All the negotiations were conducted by Leonard Fish, president and a director of Bankcom, and Patrick Goy, a second vice-president of Continental.

Even though the commercial relationship between Bankcom and Continental appeared to be ongoing, Continental’s lending officers had noted in their records as far back as September 1977 that the bank was anticipating a termination of the relationship by the end of the year. Depositions of various bank officers established that Fish was a difficult customer to deal with, and the repeated overdrafts in the corporate checking account, although covered by the bank, were causing Goy problems in the management of his department section and in his harmonious relations with his superiors. Consequently, in November and December of 1977, Continental informed Bankcom in writing that the bank expected payment of both the October and November notes at their respective maturity dates; Bankcom responded that it expected to pay the notes when due, to terminate its relationship with Continental as soon as the notes were retired, and to secure future financing from another bank.

Prior to the January 30, 1978, maturity date, however, Howard Weiss, one of Bankcom’s directors, began negotiating with Goy for an extension of both the October and November notes and for an additional $300,000 loan to Bankcom. Those negotiations continued past the maturity date of the October note, and Continental made no effort to collect. On February 6, 1978, Goy and Weiss orally agreed that Continental would (1) extend the existing $200,000 loan provided Bankcom secured the loan with a $125,000 irrevocable letter of credit from Itel Data Services Corporation and a $75,000 personal guarantee from Fish, and (2) advance Bankcom additional funds, to be guaranteed by other officers, directors, or financial supporters of Bankcom. However, on February 14, 1978, Goy informed Weiss in a handwritten note that the February 6 agreement was contingent on Fish’s personal guarantee of the entire $200,000 instead of the originally agreed-upon $75,000. Also on February 14, Goy sent Fish a letter expressing Continental’s desire to be paid in full on the maturity dates of the notes, outlining the additional loan and guarantee procedures discussed by Goy and Weiss, but warning that the letter was not a specific proposal to advance funds to Bankcom. The letter concluded with the statements, “The present borrowing and future borrowings will be on a secured demand note with interest ***. This in general terms outline [sic] a rather detailed program of structuring the credit facility for the company. It is not meant to be a proposal to advance funds, but a basis for future discussion.”

During the morning of February 21, 1978, Goy received notice from Continental’s bookkeeping division that if all Bankcom’s checks presented that day were to be paid, Bankcom’s checking account would be overdrawn $10,270.39. Goy called Fish to inform him of the situation, whereupon Fish told Goy that deposits were in the mail and listed the specific items and amounts. Goy responded, “Fine.” Although Bankcom actually showed a positive ledger balance, certain of the funds were as yet uncollected; Continental therefore returned one check for approximately $30,000 and thus prevented an overdraft. Subsequent mail notice was sent to Fish.

Later in the afternoon of February 21, 1978, Goy called Weiss to inform him that the bank’s final position regarding any loan agreement was to consider future advances only if Weiss’ personal guarantee was collateralized. A proposed alternative would be a loan by Continental to Weiss and his brother in return for their personal collateralized guarantees; they in turn would loan the money to Bankcom. A third possibility was Continental’s agreeing to provide Bankcom with interim financing, guaranteed by the individual guarantors, during which Bankcom would move to another bank and secure new loans with which to pay the notes due Continental as well as to finance future development. Goy represented Continental as wanting to be “considerate of [Bankcom’s] needs” during the transition, whereupon Weiss said he would soon be in touch with Goy.

On the next day, February 22, 1978, Goy, orally and by letter, informed Fish that Continental “confirmed” its demand for immediate payment of the entire balance of principal and interest on the two notes; accordingly, Goy had ordered the entire checking account balance, now over $95,000, offset against the notes. Several outstanding checks were dishonored. Bankcom quickly issued a press release disclosing the actions taken by Continental and affirming the stability of Bankcom’s financial position.

On February 28, 1978, six days after the offset, Bankcom filed a two-count complaint against Continental and Goy, alleging that (1) Continental was promissorily estopped to collect on the notes by offsetting Bankcom’s checking account on February 22, and (2) Continental’s actions constituted tortious interference with Bankcom’s business relationships. At the same time, Continental filed a counterclaim for $154,041.75, the balance remaining on the notes after the setoff. After engaging in extensive discovery, Bankcom amended its complaint, adding two more counts: (3) Goy fraudulently induced Fish to submit deposits to the checking account for the purpose of building up the balance in anticipation of the offset, not to pay outstanding checks; and (4) Continental breached its fiduciary duty to Bankcom in connection with its handling of the two notes, the negotiations, and the offset.

After granting motions to extend the period for discovery, reviewing the extensive legal memoranda, documents, depositions and affidavits, and hearing lengthy oral arguments, the trial court entered summary judgment in favor of Continental on all four counts of Bankcom’s complaint and on that portion of Continental’s counterclaim seeking recovery on the two promissory notes. For the reasons discussed below, the decision of the trial court is affirmed in part and reversed in part.

Opinion

The right to disposition of litigation by summary judgment is governed by statute. Section 57(3) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57(3)) provides that summary judgment is appropriate “*** if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In ruling on a motion for summary judgment, the trial court must construe the pleadings, depositions, and affidavits most strictly against the moving party and most liberally in favor of the opponent. Dakovitz v. Arrow Road Construction Co. (1975), 26 Ill. App. 3d 56, 324 N.E.2d 444.

“It must be clearly understood, however, that the summary judgment procedure may not be used to try any issue.” (Manahan v. Daily News-Tribune (1977), 50 Ill. App. 3d 9, 12, 365 N.E.2d 1045, 1047.) While “[i]t has been suggested that the judge in deciding a motion for summary judgment may not draw inferences,” we “do not believe that this is an exclusive statement. If the court is presented with facts with which reasonable men may disagree or facts which are subject to conflicting inferences, summary judgment should not be granted.” (50 Ill. App. 3d 9, 12, 365 N.E.2d 1045, 1048.) “Even if there is no dispute in the evidence, if fair-minded persons would draw different conclusions from the evidence, then it becomes the province of the jury to draw that conclusion which to them seems most reasonable.” (Silberstein v. Peoria Town & Country Bowl, Inc. (1970), 120 Ill. App. 2d 290, 293-94, 257 N.E.2d 12, 14.) After reviewing the entire record, we find that conflicting inferences may be drawn from the undisputed facts presented by both Bankcom and Continental, and therefore the entry of summary judgment was in part improper.

I

Bankcom’s first claim, that Continental was promissorily es-topped to collect on the notes by offsetting Bankcom’s checking account against the debt, is based on the “well settled principle of law that where parties to a written contract mutually consent and acquiesce in the oral modifications and in the non-performance of certain provisions thereof *** each party is estopped to deny the efficacy of the modifying agreement *** provided the proof is strong that such *** modifications have been assented to.” (Nagle v. General Merchandising Corp. (1978), 58 Ill. App. 3d 344, 348, 374 N.E.2d 1137, 1141, quoting Robar v. Isham (1924), 310 Ill. 585, 589, 142 N.E. 460, 462.) While we agree with Continental that Goy had never expressly promised in writing to refrain from collecting on the notes by offsetting Bankcom’s checking account, the promise essential to a claim of promissory estoppel need not be expressed, only unambiguous. (See Perlin v. Board of Education (1980), 86 Ill. App. 3d 108, 407 N.E.2d 792.) “In order that there may be an agreement, the parties must have a distinct intention common to both and without doubt or difference. *** The intention of the parties must in some way be communicated, since a person’s intention can be ascertained by another only by means of outward expressions such as words and acts.” (Bank of Marion v. Robert “Chick” Fritz, Inc. (1973), 9 Ill. App. 3d 102, 108, 291 N.E.2d 836, 840, affd (1974), 57 Ill. 2d 120, 311 N.E.2d 138.) Bankcom alleges that the setoff was improper because while the outward expressions of intent by both parties established that the parties were working toward a modified agreement, Continental’s action was based solely on its uncommunicated intent.

Bankcom’s claim of promissory estoppel is based on several communications among Goy, Weiss, and Fish. A review of the language used in the letters exchanged by the three men reveals that in nearly every case, phrases acknowledging the maturity date of the notes were closely followed by phrases inviting renegotiation. On October 26, 1977, an outstanding loan from Continental to Bankcom was renewed; the language in the letter accompanying the renewal note indicated that automatic renewal was almost a matter of course. A November 30, 1977, letter from Goy to Fish firmly restated the maturity date of the October note but went on to say, “While of course we would be willing to discuss a renegotiation of that note at any time ***.” Two days later, Fish replied that Bankcom “would like to avail [itself] of your suggestion about renegotiation ***.” Goy’s February 14, 1978, letter to Fish, repeatedly quoted by Continental, began with the bank’s assertion, “As discussed with you and other members of the Board of Bank Computer Network Corporation, this Bank has indicated our desire to be paid out of our advances to your firm at their January 30, 1978 and February 13, 1978 maturities.” However, the letter then continued with several paragraphs explaining in detail Continental’s proposals for future borrowing relations with Bankcom and a suggested alternative plan for repayment of the notes.

Even after the February 6 oral agreement was changed into the February 14 written proposals explained above, Goy’s repetition of those three options to Weiss on February 21 logically implied that Weiss still had a choice among them; immediate, unilateral action to collect on the notes by offset of Bankcom’s checking account was not a fourth alternative Weiss had to consider. It is clear to us that the third option, proposing interim financing by Continental while Bankcom moved to another bank, contemplated repayment with funds from the new loan, not from the checking account. Like the documents implying a 12-month employment contract in Perlin v. Board of Education (1980), 86 Ill. App. 3d 108, 407 N.E.2d 792, Goy’s letter to Fish and telephone call to Weiss presented a limited number of options, one of which was a specific method of repayment. Until Bankcom had had a reasonable time to accept and act on the third option, that of paying Continental with a loan from another bank, Continental was estopped to collect on its notes by offsetting Bankcom’s checking account.

On the basis of the above evidence, it is reasonable to conclude that the failure of Continental to make any effort to collect on the October note at its January 30, 1978, maturity date resulted from the ongoing negotiations concerning renewal. Although Goy had stated specifically that any promise of future extensions or advances to Bankcom would not be effective unless put in writing, Bankcom reasonably believed that the stipulated February 6 oral agreement would be memorialized in writing. When the subsequent handwritten proposal altered some of the terms previously agreed upon, Bankcom again reasonably believed that it had time to discuss and internally deal with the new terms.

While it is true that there was not a “meeting of the minds” between Bankcom and Continental on every facet of Continental’s proposal, the only differences centered around the terms Continental had unilaterally altered. Continental overstates the level of disagreement by saying, “As of February 14, there was no meeting of the minds between Continental and Bankcom and no agreement between them as to how a continuing relationship would be structured.” We find that, on the facts presented, Bankcom arguably could have believed that the portions of the oral agreement not contravened were still in effect, and that Continental thus promised to forego collection until negotiations ceased. Goy’s language warning that the letter “should not be interpreted as a proposal by the Bank to advance funds on the basis as indicated” occurs in the midst of three alternative options, one of which was a proposed repayment plan. In such a context, the “disclaimer” is neither the unequivocal repudiation of the oral agreement nor the express reminder that the bank expected prompt payment on the already-expired maturity dates that Continental would have us believe. On these facts, reasonable men certainly could draw different but equally reasonable inferences concerning the existence of a definite promise.

In addition to establishing a question of fact on the promise itself, Bankcom has also made it clear that it relied on the proposal. Fish was already engaged in negotiations with several other financial institutions, and at least one of Bankcom’s directors stood ready and able to advance personal funds to pay Continental. Further, Continental anticipated Bankcom’s reliance; the detailed requirements of personal guarantees, collateralization of guarantees, letters of credit, and life insurance protection for Fish were not a mere exercise in creative security. Finally, Bankcom has produced some evidence of both financial and reputation damage, thus satisfying all requirements for a claim of promissory estoppel.

It appears clear from the record before us that Bankcom has presented evidence capable of being interpreted as establishing promissory estoppel. “Whether or not these factors are all present is a question of fact to be determined by the trial court [i.e., the jury].” (Illinois Valley Asphalt, Inc. v. J.F. Edwards Construction Co. (1980), 90 Ill. App. 3d 768, 770, 413 N.E.2d 209, 211.) We therefore reverse the entry of summary judgment on Bankcom’s claim of promissory estoppel and remand this issue for trial on the merits.

II

Bankcom’s second claim alleges that Continental’s offset of the checking account and dishonor of several of Bankcom’s checks constituted tortious interference with its business relations. Actions for interference with prospective economic advantage arising out of a business relationship are recognized in Illinois and require that (1) the plaintiff has a valid business expectancy; (2) the defendant knows of the expectancy; (3) the defendant intentionally interferes and prevents the realization of the business relationship; and (4) the defendant’s interference actually damages the plaintiff. (Thorne v. Elmore (1979), 79 Ill. App. 3d 333, 398 N.E.2d 837.) The trial court held that Bankcom had not demonstrated a cause of action under the law because Continental’s offset was a privileged action taken to protect its own present, existing economic interest. (See Comment, Automatic Extinction of Cross-Demands: “Compensatio” from Rome to California, 53 Cal. L. Rev. 224 (1965).) As noted by Continental, “[0]ne who has an interest may take action to protect his rights, and even if the interference is done with malice he cannot be held financially liable for the result of his actions.” Petit v. Cuneo (1937), 290 Ill. App. 16, 22, 7 N.E.2d 774, 777.

Bankcom counters the trial court’s holding by asserting that once it has established a prima facie case of intentional interference and resulting damage, Continental cannot merely claim that the setoff was privileged and thereby avoid liability; if Continental was promissorily estopped to collect on the notes, it had no privilege to offset Bankcom’s account. Once the setoff is no longer privileged, it becomes wrongful, malicious, and actionable. “The term ‘malice’ in this regard is not used in its popular sense of ill will or hatred, but in its legal sense as an intent to do wrongful harm and injury and without just cause.” (Candalaus Chicago, Inc. v. Evans Mill Supply Co. (1977), 51 Ill. App. 3d 38, 47, 366 N.E.2d 319, 326.) At the very least, Bankcom argues, the possibility that estoppel has transformed an otherwise privileged setoff into tortious interference with a business expectancy means that a genuine issue of material fact exists, thus rendering summary judgment inappropriate.

Our careful analysis of the relevant case law leads us to conclude that Bankcom has failed to meet its burden of presenting some evidence that Continental’s intent was to interfere with Bankcom’s business relations. No authority demonstrates that “intended but purely incidental interference resulting from the pursuit of the defendant’s own ends by proper means has been held to be actionable.” (Prosser, Law of Torts sec. 130, at 952 (4th ed. 1971).) Even if the means were not proper, they do not approach the level of legal malice. We therefore conclude that the interference is more appropriately labeled “incidental” rather than “intentional.” Accordingly, we affirm the trial court’s entry of summary judgment in favor of Continental on Bankcom’s claim of tortious interference with business relations.

Ill

Bankcom’s third claim alleges that Continental’s failure to inform Bankcom that it intended to offset Bankcom’s checking account constitutes a fraudulent misrepresentation. The elements of an action for fraud, set forth in Zeilenga v. Stelle Industries, Inc. (1977), 52 Ill. App. 3d 753, 757, 367 N.E.2d 1347, 1349, are as follows:

“In order to prove actual fraud it is incumbent upon plaintiff to establish that defendants’ misrepresentation was an untrue statement of material fact, made with knowledge of its falsity for the purpose of influencing the other party who relied upon the statement.”

We note that in most jurisdictions, a promise of future conduct, representing as it does the state of a.person’s mind, is regarded as a statement of material fact; consequently, “a promise made without the intent to perform it is held to be a sufficient basis for an action of deceit ***.” (Prosser, Law of Torts sec. 109, at 729 (4th ed. 1971).) Illinois courts, however, have rejected this general rule, holding instead that “a promise to perform an act accompanied by an intention not to perform [is] not a false representation upon which a fraud charge could ordinarily be based ***.” (Vance Pearson, Inc. v. Alexander (1980), 86 Ill. App. 3d 1105, 1111, 408 N.E.2d 782, 786.) Only one recognized exception has developed: a knowingly false promise of future conduct that amounts to a scheme to defraud. Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634; Roda v. Berko (1948), 401 Ill. 335, 81 N.E.2d 912.

Our examination of the documents that were before the trial court convinces us that Goy’s response “Fine” to Fish’s assurance that deposits sufficient to cover the overdraft were in the mail does not amount to actionable fraud. Although Bankcom argues that Goy’s response was an implied promise of future conduct, i.e., that the deposits would be used to pay Bankcom’s outstanding checks, not offset against the outstanding debt, it is clear to us that Goy’s reply was not part of a general scheme to defraud Bankcom. “As a general principle of law, courts have been consistent in holding that fraud is always a positive and willful device, resorted to with the intent to injure another in some manner.” (People v. L & M Liquors, Inc. (1976), 37 Ill. App. 3d 117, 121-22, 345 N.E.2d 817, 821.) Illinois case law, however, generally utilizes a more inclusive definition, that fraud includes anything calculated to deceive. (See Citizens Savings & Loan Association v. Fischer (1966), 67 Ill. App. 2d 315, 214 N.E.2d 612.) Using either definition, Bankcom did not provide any evidence that Goy had the requisite calculated intent to deceive, much less harm Bankcom. Indeed, Fish admitted that had Goy informed him of Continental’s intention to offset, Bankcom would have stopped writing checks, stopped payment on its outstanding checks, delayed further deposits, and personally explained the dishonor of its checks to its payees.

A moment’s reflection makes it clear that none of Bankcom’s proposed responses would have conserved any of the offset funds by removing them from Continental’s grasp. Further, Goy’s word “Fine,” if interpreted to mean that Continental would permit Bankcom to overdraw its account, would amount to the gift of a loan without advance request because honoring an overdraft amounts to granting an unsolicited loan. Such an executory gift is unenforceable. Carson v. Carson (1912), 256 Ill. 381, 100 N.E. 263.

On the basis of the above analysis, we conclude that Bankcom did not present sufficient facts to establish a claim of actual fraud; in addition, the alleged representation of future conduct was neither a scheme of action to defraud nor an enforceable promise of a “gift,” an unsolicited loan. Consequently, because no material issue of fact was raised, we affirm the trial court’s entry of summary judgment on Bankcom’s claim of fraud.

IV

Bankcom’s fourth allegation is that Continental breached its fiduciary duty of “fairness, loyalty, and full disclosure” to Bankcom. While acknowledging that the debtor-creditor relationship between the two parties created no fiduciary duty as a matter of law (McErlean v. Union National Bank (1980), 90 Ill. App. 3d 1141, 414 N.E.2d 128; People ex rel. Barrett v. Liberty State Bank (1940), 304 Ill. App. 238, 26 N.E. 2d 156), Bankcom argues that the “relationship extended significantly beyond that of debtor-creditor.” As the trial court properly recognized, Bankcom’s contention that it gave Continental confidential information and placed trust and confidence in its lender does not satisfy the requirements for the creation of a fiduciary duty.

As noted by Continental, Illinois law establishes that where a fiduciary relationship does not arise as a matter of law, it may exist “only when confidence is reposed on one side and there is resulting superiority and influence on the other side. It is not sufficient that confidence be reposed by one party, *** [it] must be actually accepted by the other ***.” (People ex rel. Barrett v. Central Republic Trust Co. (1939), 300 Ill. App. 297, 303, 20 N.E.2d 999, 1002.) Although Fish asserted that he had trust and confidence in Continental and its loan officers, he did not establish that Continental gained any influence and superiority over him. Similarly, there was no evidence that Continental accepted the trust and confidence allegedly extended by Bankcom.

A fiduciary duty is created only when one party entrusts himself to the “domination and control” of another. (300 Ill. App. 297, 303, 20 N.E.2d 999, 1002.) The documents, memoranda, and depositions all establish that not only did Bankcom exercise independent judgment in the control of its business, but also the information Bankcom gave to Continental, although confidential, included only such information as is typically supplied to a creditor to aid in evaluating the credit potential of a prospective borrower. The trial court properly concluded that these facts did not establish the existence of a fiduciary relationship between the parties, and therefore we affirm the entry of summary judgment on this issue.

V

Finally, Bankcom claims that Continental is not entitled to summary judgment on its counterclaim because collection on the notes is precluded by Bankcom’s promissory estoppel claim. In light of our decision to reverse the entry of summary judgment on the issue of promissory estoppel, it follows that the extent of Bankcom’s liability on the notes cannot be made certain until the issue of Continental’s potential liability on the alleged promise is resolved. As explained in Chicago Title & Trust Co. v. Exchange National Bank (1974), 19 Ill. App. 3d 565, 567, 312 N.E.2d 11, 14, “no default *** would permit the mortgagor to accelerate the maturity of the debt when there is a setoff available which is equal to or exceeds the amount of the indebtedness due at the time of default.” Likewise, the fact that Bankcom’s loan from Continental was overdue does not preclude Bankcom from raising a legitimate claim of improper setoff. While Continental is not accelerating the original maturity date on the notes, the claim of promissory estoppel, if proven, may establish that the maturity dates had been extended. If so, Continental would be accelerating the maturity of the debt improperly. Accordingly, we reverse the entry of summary judgment on Continental’s counterclaim.

Affirmed in part; reversed in part; remanded for further proceedings in accordance with this decision.

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


source: Caselaw Access Project

author: JUSTICE ROMITI

license: Public Domain

text:
    JOAN MUELLER, Plaintiff and Counterdefendant-Appellee, v. YELLOW CAB COMPANY, Defendant and Counterplaintiff-Appellant.
    First District (4th Division)
    No. 81—2592
    Opinion filed November 12, 1982.

      Jesmer and Harris, of Chicago (Ronald Jay Gold and Charles E. Tannen, of counsel), for appellant.
    Robert A. Townsend, of Chicago, for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Defendant appeals from an adverse jury verdict and judgment in a suit for personal injuries and property damage. Defendant contends:

(1) the trial court erred in refusing to allow defendant to impeach its own witness when the witness, to defendant’s surprise, testified contrary to a previous written statement;

(2) the trial court erred in refusing to allow expert testimony from an employee of the city of Chicago Department of Streets and Sanitation as to timing, sequence and location of certain traffic signals;

(3) the trial court erred in instructing the jury as to future pain and suffering where injuries, if any, were purely subjective in character and the only evidence as to future pain and suffering was plaintiff’s testimony that at the time of trial, five years after the occurrence, she still suffered some headaches; and

(4) the trial court erred in directing a verdict as to the amount of property damage where the only evidence was an estimate of repairs and the sole witness on this issue, plaintiff’s husband, had no personal knowledge as to the extent of damage.

We agree with defendant that the trial court committed reversible error in refusing to permit it to impeach its witness. We also agree that the court should have allowed the expert testimony. Finally, we agree that the trial court erred in directing a verdict as to the amount of property damage.

The accident occurred when defendant’s taxicab ran into plaintiff’s automobile at an intersection. Both sides contended the other went through a red light. There were four witnesses on this issue: the plaintiff; Roy Pomeraning, an acquaintance of plaintiff who was in a milk truck standing at the intersection; the taxicab driver, James Flores; and Ronald Marshall, the passenger in the taxicab.

Plaintiff testified that the accident occurred at the intersection of the exit ramp from the Kennedy Expressway and Montrose Avenue at 8:45 a.m. while she was driving to work. Plaintiff left the expressway at the Montrose exit, intending to turn from the exit ramp onto westbound Montrose Avenue. The intersection is controlled by a traffic light. Plaintiff could see the traffic light immediately upon her exit from the expressway onto the ramp. As she drove up the exit ramp, the light was green. She reduced her speed from 55 m.p.h. to about 15 or 20 m.p.h. There were no vehicles in front of her. As she entered the intersection the traffic light was still green. She passed a milk truck sitting in the south lane on Montrose facing east. As the front of her vehicle was passing the milk truck, she saw a taxicab approximately 10 to 15 feet from her moving east on Montrose in the second lane from the south curb. The cab struck the left side of her car. According to plaintiff, the cabdriver stated he did not see the traffic light.

Roy Pomeraning was the driver of a milk truck. He and the plaintiff had known each other on a first-name basis for four or five years. He testified that at the time of the accident he was in the far right lane on Montrose waiting for the light to change. He had been stopped there for about one minute. When plaintiff crossed in front of him, his light was still red. The witness did not see defendant’s taxi but he heard it strike plaintiff’s car.

James Flores, the taxicab driver, testified that before the accident he had been driving east along Montrose for several blocks. He first saw the traffic lights about half a block away. The lights were in view when one was under the viaduct, which was west of the intersection, and when one was east of the viaduct. When he first saw the lights they were red. He was traveling about 25 m.p.h., but he decreased his speed as he continued east. When he was four or five car lengths west of the intersection, the light changed to green. He continued into the intersection and the accident occurred. Flores denied he ever stated to plaintiff that he ran the red light.

Defendant also called Ronald Marshall, the passenger in the cab, as a witness. Contrary to a previously given written statement, Marshall testified that he did not see the light. Defendant’s attempts to examine him as to the previously given statement were objected to and the objection was sustained on the ground defendant was attempting to impeach its own witness. Defendant’s request for a sidebar was denied.

On cross-examination, Marshall testified that he did not know what color the traffic light was because he had been talking with the cabdriver at the time of the accident. He said that at the time of the accident the driver had his head turned towards the rear seat.

After this witness’ testimony the court recessed for lunch. Immediately after lunch, defendant moved for a mistrial because it had not been allowed to impeach Marshall with his prior signed statement. In that statement, he had said, “When we approached the Kennedy exit ramp the light was green for the cab and as the driver proceed [sic] a car driven by Joan Mueller who was northwest bound off [the] exit ramp ran the red light directly in front of the taxicab. My driver could do nothing but hit her in her left side. I know the light for eastbound Montrose was green as I am an amature [sic] camera buff and am always looking for a photos [sic].”

Defendant, relying on Supreme Court Rule 238, contended that it was entitled to impeach the witness because it was taken by surprise by the inconsistent statement. The trial court denied the claim on the grounds defendant had been trying to impeach his witness, not rehabilitate him, and there was no showing of hostility.

Supreme Court Rule 238 provides:

“If the court determines that a witness is hostile or unwilling, he may be examined by the party calling him as if under cross-examination. The party calling an occurrence witness, upon the showing that he called the witness in good faith and is surprised by his testimony, may impeach the witness by proof of prior inconsistent statements.” (73 Ill. 2d R. 238.)

It seems clear that under this rule a party need only show surprise and need not show hostility. (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 419 N.E.2d 578; Sellers v. Hendrickson (1977), 46 Ill. App. 3d 549, 360 N.E.2d 1235; O’Boyle v. Greco Excavating Co. (1972), 9 Ill. App. 3d 234, 292 N.E.2d 90, appeal denied (1973), 53 Ill. 2d 608.) Thus we believe the trial court erred in refusing to allow defendant to impeach Marshall.

Plaintiff contends that defendant’s claim of surprise was untimely since it first raised the point after lunch. Surprise should be claimed at the earliest opportunity. (People v. Wesley (1959), 18 Ill. 2d 138, 163 N.E.2d 500, cert. denied (1960), 364 U.S. 845, 5 L. Ed. 2d 69, 81 S. Ct. 87.) Here, however, it was obvious that defendant was surprised by Marshall’s deviation from the written statement. Moreover, the trial court prevented further development of this point by refusing the requested sidebar. Finally, it is clear that the trial court would have refused to allow impeachment during direct examination even if defendant had more clearly stated it was surprised at that time, since the trial court repeatedly expressed its belief defendant could not impeach its own witness, at least absent a showing of hostility.

In light of the fact that the evidence was close on this particular issue and Marshall’s testimony was particularly damaging to defendant, the refusal to allow defendant to impeach Marshall was clearly prejudicial. (Cascio v. Bishop Sewer & Water Co. (1954), 2 Ill. App. 2d 378, 119 N.E.2d 531.) For this reason the case must be reversed.

In light of the fact that we have already determined that there must be a new trial, we need not decide if the trial court’s refusal to allow the expert testimony as to the timing, sequence, and location of the traffic lights was prejudicial error or whether the defendant’s offer of proof was insufficient as plaintiff contends. On retrial, since there is no dispute as to the knowledge and expertise of Marshall Davies, the proffered witness, his testimony should be allowed. See Ferdinand v. Yellow Cab Co. (1976), 42 Ill. App. 3d 279, 355 N.E.2d 547, where the trial court did permit Davies’ testimony.

Any evidence which has a natural tendency to establish the fact in controversy should be admitted. (People v. Newsome (1919), 291 Ill. 11, 125 N.E. 735.) The basic principle which animates our law of evidence is that what is relevant generally is admissible. (People ex rel. Noren v. Dempsey (1957), 10 Ill. 2d 288, 139 N.E.2d 780; Geaschel v. Rokita (1967), 89 Ill. App. 2d 161, 232 N.E.2d 204 (abstract of opinion).) Relevancy is established where the evidence offered tends to prove a fact in controversy or to render a matter in issue more or less probable. (People v. Rodgers (1972), 53 Ill. 2d 207, 290 N.E.2d 251; Needy v. Sparks (1977), 51 Ill. App. 3d 350, 366 N.E.2d 327, appeal denied (1977), 66 Ill. 2d 639; Uebelein v. Chicago Transit Authority (1967), 86 Ill. App. 2d 395, 230 N.E.2d 33; 4 Callaghan’s Illinois Evidence sec. 5.03 (1964).) Where the issue is which party entered the intersection on a green light, evidence as to the timing and sequence may help to establish which witness’ testimony is more credible. Thus it is relevant and should be admitted.

The other material issue in controversy is whether the trial court erred in directing a verdict as to the amount of damage to the Mueller’s automobile. The sole witness on this issue was plaintiff’s husband, John Mueller. He stated that the car, a 1972 Oldsmobile, was in excellent condition prior to the accident in 1976. Over defendant’s objection, an estimate of repairs was introduced into evidence. John Mueller testified that the estimate was paid. On cross-examination, the witness admitted that he only knew what work was done by looking at the estimate. For example, he had no personal knowledge what damage was done to the engine; he only knew there was engine damage from looking at the estimate. The court refused to permit further cross-examination intended to bring out the fact that the witness had no personal knowledge as to what repairs were done. Despite the fact that there was no evidence as to what repairs were actually performed and whether they were necessitated by the accident, the court directed a verdict as to the amount of property damage.

As was stated as far back as 1917 in Coyne v. Cleveland (1917), 208 Ill. App. 425, 428, which is directly in point:

“There was no testimony that these repairs were all made necessary by the injuries to the car, received in this collision. Plaintiff was able to describe very little of the damage done to the car and did not testify what repairs were needed. No one testified to the details as to the parts broken or injured. The car was heavy and had been owned and used by plaintiff three years without repairs. So far as appears, the Barley Manufacturing Company made such repairs as they thought proper. *** If plaintiff had testified that all these repairs for which this bill was rendered were made necessary by this collision, his subsequent examination showed that he could not possibly have known that, for he only knew a few of the more obvious items of the injury. Plaintiff relies upon the bill rendered as proving the reasonable cost of the repairs made necessary by the collision, under Travis v. Pierson, 43 Ill. App. 579. Before that case could apply, plaintiff should have proved that the repairs charged in this bill were all made necessary by the collision. That proof was wholly lacking.”

Plaintiff’s reliance on Saunders v. Wilson (1969), 114 Ill. App. 2d 380, 253 N.E.2d 89, is without merit. That case merely stands for the proposition that the repair bill may be introduced as presumptive evidence of the reasonable value of the repairs even though the bill is not stamped paid. But as Saunders points out, the bill itself does not supply proof of what repairs were necessitated by the accident.

For the foregoing reasons the judgment of the trial court is reversed and the case remanded for a new trial in accordance with this opinion.

Reversed and remanded.

JIGANTI and LINN, JJ., concur.


author: JUSTICE STOUDER

text:
    FRANKLIN T. MORRISON et al., Plaintiffs-Appellees, v. MIGLIORE CONTRACTING CORPORATION et al., Defendants-Appellants.
    Third District
    No. 82—276
    Opinion filed November 5, 1982.
    George F. Mahoney, III, of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet, for appellants.
    William Sulkin, of Chicago, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Will County granting a new trial on the issue of damages only to Franklin Morrison and Mary Morrison, plaintiffs-appellees, against Migliore Contracting Corporation and Anthony Ferino, defendants-appellants. We granted the defendants petition for leave to appeal from the order granting such new trial.

Morrison filed a four-count complaint. The first three counts against the defendant Migliore Contracting Corporation were based respectively on theories of breach of contract, breach of implied warranty of habitability and negligence. The fourth count alleged fraud against the contracting corporation and Ferino.

The facts out of which this controversy arose need not be set forth in any great detail. It is sufficient to say that Migliore built a house for Morrison on a lot owned by Migliore in a subdivision which it was developing. Ferino was president and sole shareholder of Migliore. Construction of the house was completed in 1974. About two years later the purchasers began to notice defects in the house, the principal one being that the house settled about V-k feet.

The testimony at the trial dealt with two main issues; the cause for the settling of the house and the value of the house and consequently the damages sustained by the plaintiff. Each party presented evidence relating to soil samples, top soil, underlying strata, fill and grading. That the house settled because of the subsidence of the underlying ground was conceded but the cause and knowledge of the collapse of the underlying support was disputed. Estimates of damage ranged from $40,000, based on cost of house and lot of $45,000, to $67,000.

At the close of all of the evidence the trial court directed a verdict in favor of the plaintiff and against the defendant on the issue of liability on count II, the warranty-of-habitability count, and this count was submitted , to the jury on the issue of damages only. Apparently counts I and III were not submitted to the jury. All issues under count IV, the fraud count, were submitted to the jury.

The jury returned its verdict for $40,000 on count II against Migliore and a verdict on count IV in the amount of $5,000 actual damages and $500 punitive damages against both defendants.

Subsequent to the return of the verdicts the plaintiff moved for a new trial on the issue of damages only on count IV. After this motion was granted the defendants moved for a new trial on count IV on all issues which motion was denied. Neither party sought any relief with respect to the judgment of $40,000 entered on count II.

The instructions given to the jury on compensatory or actual damages were the same on both counts II and IV. Since measured by the instructions the loss to the plaintiff in terms of compensatory or actual damages was the same under either count, the amount of actual or compensatory damages should have been the same. Yet the jury returned a verdict of $40,000 as actual damages in count II and $5,000 as actual damages in count IV. It is this disparity and the possible reasons for it which prompted the plaintiff to seek a new trial on damages only and has raised the question of whether this relief was properly awarded by the trial court.

The plaintiff has raised two preliminary questions arguing the trial court should not have granted any new trial because first the verdicts were not inconsistent and second, the defendant may not complain because of an unfavorable verdict which was the result of his own erroneous or confusing instructions.

We find no merit to either of the foregoing arguments. As noted earlier the instructions with regard to actual or compensatory damages on each count were the same and the elements of damage were the same. The suggestion now made by the defendant that somehow or other the elements of damage on the fraud count are different thereby rendering the verdicts consistent cannot be supported either by logic or precedent. Likewise, no claim was made by the plaintiff that any instruction was erroneous or confusing. Consequently, the plaintiff is not relying on an error which he promulgated to now seek a new trial as was the case in Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 357 N.E.2d 500.

We now turn to the main issue which is whether the court erred in granting a new trial on the issue of damages alone or whether it should have granted a new trial generally.

In the leading case of Paul Harris Furniture Co. v. Morse (1956), 10 Ill. 2d 28, 139 N.E.2d 275, the rule is announced that where the issues of liability and damages are separable a new trial may be had on the issue of damages only where there is error with regard to the award of damages. This rule is usually accompanied by the declaration that where the award of damages appears to be a compromise between liability and damages it would be unjust to permit a retrial on the issue of damages alone. (See Kelly v. Wiseman Construction Co. (1976), 38 Ill. App. 3d 808, 349 N.E.2d 108, and Gainer v. Bates (1973), 14 Ill. App. 3d 297, 302 N.E.2d 463.) In the Paul Harris Furniture Co. case the court was able to look at the evidence of damages and ascertain the nature of the mistake which the jury made in its damage determination. Where the reasons for the mistakes are not ascertainable and the court is required to speculate about the reasons for an inadequate verdict, it is difficult to avoid the conclusion that a compromise of some kind occurred.

Punitive damages are recoverable only when there is a wrongful act accompanied by aggravating circumstances such as wilfulness and wantonness, malice or oppression. (Wetmore v. Ladies of Loretto, Wheaton (1966), 73 Ill. App. 2d 454, 220 N.E.2d 491.) Since the judgment for compensatory or actual damages on count II has not been questioned or disputed by either party this issue has been resolved. The posture of this case on retrial is primarily an issue related to whether punitive damages should be awarded. Such damages depend solely on the nature and character of the defendants’ conduct as distinguished from the loss or damage sustained by the plaintiff. The potential liability for punitive damages is so intertwined with the issue of liability itself that we do not see how these issues can be considered separable. In this connection no case has been called to our attention in which a retrial on the issue of damages alone was allowed where punitive damages were sought. Additionally, we would note the fraud count was vigorously contested, and while we agree there is sufficient evidence to support a verdict in favor of the plaintiff, we also believe it probable that a verdict in favor of defendants would have been sustained on appeal since many of the material issues were disputed and their resolution depended on how the jury viewed such issues.

Accordingly, we believe the trial court erred in granting a new trial on the fraud count limited to the issue of damages only and consequently the judgment of the circuit court of Will County is reversed and remanded with directions the plaintiff be awarded a new trial on count IV of the complaint on all issues.

Reversed and remanded with directions.

ALLOY and HEIPLE, JJ., concur.


author: JUSTICE HOPE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GUY STRAIT, Defendant-Appellant.
    Second District
    No. 81—226
    Opinion filed November 22, 1982.
    Mary Robinson and Kyle Wesendorf, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPE

delivered the opinion of the'court:

Defendant appeals from an order of the circuit court of Winnebago County denying his petition for post-conviction relief. The petition requested that his guilty plea be vacated and the indictment on which the plea was based be dismissed on double jeopardy grounds.The sole issue on appeal is whether the petition was improperly denied.

Defendant was previously prosecuted for the crime of indecent liberties with a child, found guilty after a bench trial, and sentenced to a term of imprisonment of 10 to 20 years. The conviction was reversed by this court on appeal because the information on which it was based failed to allege facts which would toll the statute of limitations. In that proceeding, defendant also challenged the sufficiency of the evidence against him, claiming he was not proved guilty beyond a reasonable doubt. The reasonable doubt issue was noted but not reached by this court. (People v. Strait (1977), 52 Ill. App. 3d 599, 367 N.E.2d 768.) The State appealed the appellate court’s reversal to the Illinois Supreme Court, and defendant again challenged the sufficiency of the evidence in that court. However, on motion of the State, this argument was stricken from defendant’s brief on the ground that it was not considered in the appellate court. The supreme court subsequently affirmed the reversal of defendant’s conviction. People v. Strait (1978), 72 Ill. 2d 503, 381 N.E.2d 692.

Following reversal, another indictment was returned charging defendant with the same offense based on the same conduct as that in the first prosecution. This indictment alleged certain limitation-tolling facts.

Defendant moved to dismiss the charge on due process and double jeopardy grounds, claiming that reprosecution was barred because he never received appellate review of the sufficiency of the evidence in the first trial. (See People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366.) He did not, however, reassert his claim that he was not proven guilty beyond a reasonable doubt in the original prosecution of the cause. In denying the motion, the trial court noted the reversal was obtained because of a defective information. Thus, the court determined that the case should be treated the same as a retrial following a reversal for trial errors not based on the sufficiency of the evidence. (See United States v. Ball (1896), 163 U.S. 662, 41 L. Ed. 300, 16 S. Ct. 1192.) The court accordingly held that reprosecution did not violate double jeopardy principles.

Defendant subsequently entered a negotiated plea of guilty to the renewed charge. After the factual basis of the charge was recited, and defendant was admonished, the trial court accepted the guilty plea and sentenced defendant to 8V2 years of imprisonment pursuant to the plea agreement. No motion to withdraw the plea was filed, nor was a direct appeal taken pursuant to Supreme Court Rules 604(d) and 605(b) (87 Ill. 2d R. 604(d) and 605(b)).

Defendant filed pro se a petition for post-conviction relief approximately 10 months later. The petition again alleged that reprosecution was barred on double jeopardy grounds because he was denied appellate review of his reasonable doubt claim in the original proceedings. He did not allege that he was not proven guilty beyond a reasonable doubt in the first trial. The petition was denied by the trial court, and the instant appeal followed.

The sole issue raised by the defendant is whether reprosecution is barred on double jeopardy grounds when defendant has not received appellate review of a reasonable doubt claim raised in the original prosecution of the cause. The State advances several arguments to support their position that reprosecution in the instant case is not barred. We will not address these arguments since, in our opinion, defendant has not raised a claim which is cognizable in a p'ost-conviction petition.

Under the Post-Conviction Hearing Act, we are limited to considering only matters raised in the post-conviction petition which are of constitutional dimension. (Ill. Rev. Stat. 1979, ch. 38, par. 122 — 1 et seq.) (People v. Robinson (1978), 66 Ill. App. 3d 601, 384 N.E.2d 420; People v. Vail (1970), 46 Ill. 2d 589, 264 N.E.2d 201.) A violation of a statute or rule of procedure which does not constitute a deprivation of constitutional rights may not be considered. (Robinson; People v. Masterson (1970), 45 Ill. 2d 499, 259 N.E.2d 794, cert. denied (1971), 401 U.S. 915, 27 L. Ed. 2d 815, 91 S. Ct. 892; People v. Hangsleben (1969), 43 Ill. 2d 236, 252 N.E.2d 545, cert. denied (1970), 397 U.S. 1048, 25 L. Ed. 2d 661, 90 S. Ct. 1379; People v. Orndoff (1968), 39 Ill. 2d 96, 233 N.E.2d 378.) For the reasons that follow, we believe defendant has alleged in his petition the violation of a rule of procedure not amounting to a deprivation of his constitutional rights. Defendant relies upon Burks v. United States (1978), 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141, and People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366, as authority for his position that a failure to review the evidence adduced at the first trial bars reprosecution of the defendant for the same offense. We do not believe these cases support the argument advanced by defendant here.

In Burks v. United States (1978), 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141, the United States Supreme Court held that the double jeopardy clause of the fifth amendment precludes a second trial when conviction in the first trial is reversed for lack of sufficient evidence. Equating such reversal with an acquittal, the court also held that under these circumstances a defendant’s double jeopardy rights are not waived by virtue of the fact that a new trial is sought as one of defendant’s remedies, or even as the sole remedy. The court stated:

“The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials.” (437 U.S. 1, 11, 57 L. Ed. 2d 1, 9, 98 S. Ct. 2141, 2147.)

The Burks case, while expressing concern over double jeopardy problems upon retrial, did not require a reviewing court to pass upon the sufficiency of the evidence whenever that claim is raised on appeal. Further, the reversal of defendant Strait’s original conviction was not based upon a finding of insufficient evidence and, thus, Burks is inapposite to the case at bar.

In People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366, defendant’s convictions were reversed by the appellate court because of a Miranda violation. In accordance with established Illinois law, the appellate court found no need to consider a reasonable doubt claim which was also raised by the defendant on appeal. (See People v. Thomas (1978), 58 Ill. App. 3d 460, 374 N.E.2d 795, 798; People v. Monaghan (1976), 40 Ill. App. 3d 322, 352 N.E.2d 295, 296; People v. Cook (1965), 33 Ill. 2d 363, 211 N.E.2d 374, 378; People v. Ruffin (1950), 406 Ill. 437, 94 N.E.2d 433, 436.) Relying upon Burks v. United States (1978), 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141, the Illinois Supreme Court found error in the appellate court’s failure to review the sufficiency of the evidence, stating that such a procedure “risks subjecting the defendant to double jeopardy” upon retrial. (76 Ill. 2d 289, 309, 391 N.E.2d 366, 375.) The court subsequently reviewed the evidence against defendant Taylor and determined that it was sufficient to support his conviction. Thus, while the court found error in the procedure previously employed by the appellate courts of this State, such error was not reversible error under the circumstances of that case. It is evident from a review of cases decided after Taylor that appellate review of a defendant’s reasonable doubt claim is now mandated whenever a conviction is reversed and the case remanded on other grounds. See, e.g., People v. Marsico (1981), 100 Ill. App. 3d 691, 427 N.E.2d 351, 353; People v. Andino (1981), 99 Ill. App. 3d 952, 425 N.E.2d 1333, 1337; People v. Earl (1980), 89 Ill. App. 3d 980, 412 N.E.2d 645, 648; People v. Thompson (1979), 75 Ill. App. 3d 901, 394 N.E.2d 422, 426.

We note that in Taylor and in subsequent cases the sufficiency of the evidence was ultimately reviewed by the court before the case was remanded for a new trial. Thus, we have discovered no cases discussing the constitutional ramifications of a failure to review the evidence prior to remand. The defendant argues that under Taylor, a failure to review the evidence in the first trial absolutely bars retrial, regardless of whether that evidence was, in fact, insufficient to establish guilt. Without commenting on the retroactive application of Taylor, we do not view Taylor as setting forth an absolute rule that the failure to review a reasonable doubt claim in and of itself violates the double jeopardy clause. It is evident that the rule in Taylor is a prophylactic one designed to ensure that the State does not receive a second opportunity to convict a defendant who should have been acquitted in the first trial for lack of sufficient evidence. (See Burks v. United States (1978), 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141.) It does not follow from this, however, that a double jeopardy violation necessarily results from a failure to review the evidence in the first trial. That evidence may well have been sufficient to convict, even though it was not reviewed by the court. (See, e.g., Taylor.) We hold, therefore, that a claim of error based upon a failure to review the evidence alleges merely the noncompliance with a rule of appellate procedure affecting the scope of review which, of itself, does not rise to constitutional dimensions. See People v. Weathers (1980), 83 Ill. App. 3d 451, 404 N.E.2d 1011; People v. Cangelosi (1979), 68 Ill. App. 3d 489, 386 N.E.2d 295; People v. Robinson (1978), 66 Ill. App. 3d 601, 384 N.E.2d 420; People v. Sanford (1978), 57 Ill. App. 3d 599, 373 N.E.2d 654; People v. Turner (1975), 25 Ill. App. 3d 847, 323 N.E.2d 371.

In his post-conviction petition, defendant alleges only a noncompliance with the procedural rule adopted in Taylor. He fails to allege that the evidence in the first trial was in fact insufficient, and he even urges this court not to review that evidence in this post-conviction proceeding. The burden is on the defendant to establish by allegations and competent proof that he was deprived of a substantial constitutional right. (People v. Newberry (1973), 55 Ill. 2d 74, 302 N.E.2d 34; People v. Cangelosi (1979), 68 Ill. App. 3d 489, 386 N.E.2d 295; People v. Cole (1975), 34 Ill. App. 3d 752, 340 N.E.2d 209.) Merely alleging that the error constituted a constitutional violation “does not elevate these errors to constitutional status, qualifying them for review under the Post-Conviction Hearing Act.” {People v. Roberts (1979), 75 Ill. 2d 1, 9-10, 387 N.E.2d 331, 335; People v. Clark (1980), 84 Ill. App. 3d 186, 405 N.E.2d 450, 452.) Since defendant does not contend that the State in fact received a second opportunity to gather evidence which it “failed to muster” in the first trial, we find that he has failed to allege sufficient facts to show a violation of his constitutional rights. Accordingly, denial of his petition on this issue was proper.

The order of the circuit court of Winnebago County is affirmed.

Affirmed.

SEIDENFELD, P.J., and LINDBERG, J., concur.


author: PRESIDING JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LINDA TURNER, Defendant-Appellant.
    First District (5th Division)
    No. 81—1574
    Opinion filed November 19, 1982.
    James J. Doherty, Public Defender, of Chicago (John Lanahan, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and LuAnn Rodi, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Following a jury trial, defendant was convicted of forgery and sentenced to a term of five years. She was arrested and charged with forgery after endorsing another person’s name to a check and, using that person’s Jewel Tea Co. check-cashing card, she attempted to cash the check at a Jewel Tea store.

On appeal, raising issues concerning only the jury selection and the sentencing process, defendant contends that (1) she was denied a fair trial when all 10 of the State’s peremptory challenges were used to systematically exclude blacks as petit jurors; (2) it was error to deny probation to her in the absence of a finding that imprisonment was necessary for the protection of the public or that probation was inconsistent with the ends of justice; and (3) there should be a resentencing hearing because the trial court did not state its reasons for the sentence imposed.

Opinion

Defendant first asserts that she was denied her right to a fair trial by the State’s use of its peremptory challenges to exclude blacks from the jury. In this regard, we initially note that the voir dire transcript does not indicate either the race of those challenged or the racial composition of the venire, or of the jury finally selected. It does disclose that there was no objection or motion made by defendant concerning those peremptorily excused by the State. Defendant did, however, allege in her motion for a new trial that she was denied “her right to a cross-section of the community on the jury” by the State using all 10 of its peremptory challenges to exclude blacks. Attached to the motion was the unverified “affidavit” of defendant’s trial attorney containing only his statement “that the State used all 10 of its peremptory challenges to exclude only Black jurors.” While admitting that this statement of counsel in itself does not support her contention (see People v. Gamboa (1975), 30 Ill. App. 3d 242, 332 N.E.2d 543), she argues that the State, by failing to deny the statement, had admitted that its 10 peremptories were used to challenge only blacks. It thus is essentially her position that this admission alone was sufficient to establish a systematic exclusion of blacks which was in violation of her sixth amendment right to a jury drawn from a fair cross-section of the community.

In Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, in upholding the conviction of a black defendant by an all-white jury despite the prosecution’s use of its peremptory challenges to strike all of the black prospective jurors on the venire, the court stated:

“In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an éxamination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.” (380 U.S. 202, 222, 13 L. Ed. 2d 759, 773, 85 S. Ct. 824, 837.)

The reasoning in Swain was adopted by the Illinois Supreme Court in People v. Butler (1970), 46 Ill. 2d 162, 263 N.E.2d 89, and has been adhered to in that court’s subsequent decisions. See People v. Gaines (1981), 88 Ill. 2d 342, 430 N.E.2d 1046, cert. denied (1982), 456 U.S. 1001, 73 L. Ed. 2d 1295, 102 S. Ct. 2285; People v. King (1973), 54 Ill. 2d 291, 296 N.E.2d 731.

Other States, interpreting their respective State constitutions, have held that the use of peremptory challenges on the sole ground of race violates a defendant’s right to a fair and impartial jury (see People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890; Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499, cert. denied (1979), 444 U.S. 881, 62 L. Ed. 2d 110, 100 S. Ct. 170; People v. Thompson (1981), 79 A.D.2d 87, 435 N.Y.S.2d 739), but until recently this court has either rejected the reasoning of those decisions (see People v. Mims (1981), 103 Ill. App. 3d 673, 431 N.E.2d 1126; People v. Lavinder (1981), 102 Ill. App. 3d 662, 430 N.E.2d 243; People v. Fleming (1980), 91 Ill. App. 3d 99, 413 N.E.2d 1330), or found that the defendant failed to establish a prima facie case that peremptory challenges were used solely on the found of group bias (see People v. Vaughn (1981), 100 Ill. App. 3d 1082, 427 N.E.2d 840; People v. Tucker (1981), 99 Ill. App. 3d 606, 425 N.E.2d 511; People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029; People v. Smith (1980), 91 Ill. App. 3d 523, 414 N.E.2d 1117). Defendant, however, relies on this court’s recent decision in People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046, which holds that “when it reasonably appears to the trial court, either by its own observation or after motion by the defendant, that the prosecuting attorney is using peremptory challenges to systematically exclude blacks from the jury solely because they are blacks, the court should require the prosecutor to demonstrate, by whatever facts and circumstances exist, that blacks were not being systematically excluded from the jury solely because they were blacks.” 106 Ill. App. 3d 1034, 1040, 436 N.E.2d 1046, 1050.

Payne drew its reasoning and conclusions in great part from Wheeler and Soares which, after extensively examining the issue, concluded that the use of peremptory challenges to systematically exclude blacks solely because they are black could be a violation of the sixth amendment, and that Swain was not applicable because it considered the question in terms of equal protection under the fourteenth amendment. In the instant case, however, we are unable to make a determination as to whether there was any such systematic exclusion, as defendant has failed to provide us with an adequate record, as required by People v. Gaines (1981), 88 Ill. 2d 342, 43 N.E.2d 1046.

In Gaines, the defendant contended that the prosecution used its peremptory challenges to exclude all black veniremen. He asked that court to overrule its prior decisions and adopt the rule in People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890, that use of the State’s peremptory challenges to exclude blacks on the sole ground of race violated his right to a fair and impartial jury. The Gaines court found that the issue was not properly before it because the defendant “failed to make a record which would show that the veniremen who were peremptorily challenged by the State were black.” (88 Ill. 2d 342, 359, 430 N.E.2d 1046, 1054.) Although the voir dire proceedings apparently were recorded (see 88 Ill. 2d 342, 352-55, 430 N.E.2d 1046, 1051-53), they did not indicate the race of the veniremen challenged. Similarly, in the present case, while the record of proceedings contains the voir dire, it does not indicate the race of the veniremen challenged, nor the racial composition of the venire or of the jury which served at trial. While Payne does not explicitly require that the record show the race of the challenged veniremen, it recognizes this to be necessary. In referring to the cases relied upon by the State, it said: “In these cases, relief was denied either on the basis of an insufficient record or on the basis of Swain. Thus, they are distinguishable from the present case, where the record is sufficient and Swain is not applicable.” 106 Ill. App. 3d 1034, 1044, 436 N.E.2d 1046, 1053.

It is clear that the accused has the burden of properly preserving the trial proceedings (People v. Bruhn (1977), 51 Ill. App. 3d 269, 366 N.E.2d 932), and neither statements in defendant’s appellate brief (People v. MacRae (1977), 47 Ill. App. 3d 302, 361 N.E.2d 685) nor assertions in a post-trial motion (People v. Gregorich (1979), 71 Ill. App. 3d 251, 389 N.E.2d 619) can substitute for a proper report of proceedings (People v. Bruhn (1977), 51 Ill. App. 3d 269, 366 N.E.2d 932). Where the record is incomplete, the proper course is to provide a bystander’s report pursuant to Supreme Court Rule 323(c) (73 Ill. 2d R. 323(c)) or an agreed statement of facts under Rule 323(d) (73 Ill. 2d R. 323(d)), both of which are made applicable to criminal appeals by Rule 612(c). (73 Ill. 2d R. 612(c)). No other method or device is permitted or acceptable (People v. Bruhn (1977), 51 Ill. App. 3d 269, 366 N.E.2d 932), and “[w]here the record of an appeal is incomplete, we will indulge in every reasonable presumption favorable to the judgment, order or ruling appealed from, including that the trial court ruled or acted correctly. And any doubt arising from incompleteness of the record will be resolved against the appellant” (People v. Benford (1975), 31 Ill. App. 3d 892, 897, 335 N.E.2d 106, 110).

In the present case, the record does not reflect the fact that all of the veniremen peremptorily challenged by the prosecutor were black, nor does it disclose the racial composition of the jury trying the case; in fact, the record does not disclose that defendant is black. While defendant could have taken advantage of the provisions of the Supreme Court Rules to insure that the record reflected this information, she chose instead to rely solely on the unverified statement made by her counsel in the post-trial motion which otherwise made no reference to the racial composition of the jury or to her race. An analogous situation arose in People v. Belton (1981), 105 Ill. App. 3d 10, 433 N.E.2d 1119, where the defendant contended that the State’s use of its peremptory challenges against blacks denied him a fair trial. The transcript of proceedings did not reflect the race of the veniremen challenged, but defendant orally moved that the venire be dismissed and a new venire brought up because the State had exercised seven of eight peremptory challenges against blacks, according to records kept by defense counsel. Apparently the prosecutor did not rebut this statement, but argued that the State need not give reasons for exercise of peremptory challenges, and that one black had been seated on the jury. On appeal, this court noted that the statement of counsel was not acceptable in lieu of a report of proceedings, a bystander’s report, or an agreed statement of facts, and, citing People v. Gaines (1981), 88 Ill. 2d 342, 430 N.E.2d 1046, found that the record was “insufficient to show that those prospective jurors who were peremptorily challenged were black or members of minority groups.” (People v. Belton (1982), 105 Ill. App. 3d 10, 16, 433 N.E.2d 1119, 1124.) Since the record before us suffers the same defects as in Gaines, and because the statements of counsel do not cure those defects, we find no basis for reversal.

We next turn to defendant’s contention that the trial court erred in denying her probation where it did not find that imprisonment was necessary for the protection of the public or that probation was inconsistent with the ends of justice. Defendant argues that in Illinois the preferred sentence is probation, and that sentence must be imposed unless the court explicitly finds probation improper under the particular circumstances.

The Unified Code of Corrections provides that:

“Except where specifically prohibited by other provisions of this Code, the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history, character and condition of the offender, the court is of the opinion that:
(1) his imprisonment or periodic imprisonment is necessary for the protection of the public; or
(2) probation or conditional dischárge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—1(a).)

While the exact wording of the statute need not be used, substantial compliance is required, and the court should expressly state on which exception it relies in imposing a sentence other than probation. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) Substantial compliance may be found in the trial court’s discussion of the presentencing report or factors presented in aggravation and mitigation. People v. Kuesis (1980), 83 Ill. 2d 402, 415 N.E.2d 323.

In the instant case, the record is completely silent as to the judge’s reasoning in not imposing a sentence of probation. In addition, although the record indicates that the trial court received a presentence investigation report and heard factors in aggravation and mitigation, the court did not discuss any of these in imposing a sentence of five years’ imprisonment. Thus, while the record tells us what the trial court might have considered, it would stretch the phrase “substantial compliance” too far to find that, because the court presumably read and listened, its opinion may be deemed to have been stated. Since we find neither actual nor substantial compliance with the statute, defendant’s sentence will be vacated.

Defendant’s final contention is that her sentence should be vacated because the trial court did not state its reasons for the sentence imposed as required by sections 5 — 4—1(c) and 5 — 8—1(b) of the Unified Code of Corrections. (Ill. Rev. Stat. 1979, ch. 38, par. 1005— 4 — 1(c), 1005 — 8—1(b).) Since we have already decided, for other reasons, that defendant’s sentence must be vacated, we need not reach this issue. Any alleged defects in sentencing may be remedied on remand.

For the reasons stated, defendant’s conviction is affirmed, her sentence vacated, and the cause remanded for resentencing.

Affirmed, and remanded for resentencing.

LORENZ and WILSON, JJ., concur.

      Presently before our supreme court on leave to appeal. Recently, however, in People v. Teague (1982), 108 Ill. App. 3d 891, 439 N.E.2d 1066, another division of this court essentially disagreed with Payne and, in People v. Gosberry (1982), 109 Ill. App. 3d 674, the division which filed Payne reaffirmed its position.


author: JUSTICE BARRY JUSTICE HEIPLE,

text:
    CLIFTON-STRODE, No. 2, INC., et al., Plaintiffs-Appellees, v. KAROLYN K. KENT et al., Defendants-Appellants.—(Commercial National Realty Co., Counterplaintiff and Third-Party Plaintiff-Appellants; Karolyn K. Kent et al., Counterdefendants-Appellees; Robert W. Strode, Third-Party Defendant.)
    Third District
    No. 81-233
    Opinion filed November 24, 1982.
    HEIPLE, J., concurring in part and dissenting in part.
    Charles W. Kohr, of Mathis, Sloan, Littler & Kohr, of Peoria, for appellants.
    Robert L. Burhans, of Peoria, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

This appeal arises out of a dispute over a realtor’s commission on the sale of an apartment building located in East Peoria, Illinois. On August 22, 1979, Samuel and Karolyn Kent entered into a listing contract giving Commercial National Realty Company (CNR) an exclusive right to sell and advertise the Kents’ apartment building. A CNR sign was placed at the front of the property. The listing contract was a standard multiple-listing agreement which provided that it would terminate on December 20,1979, and contained the following clause:

“If you [CNR] sell or exchange this property, or if this property be sold or exchanged during the terms of this listing and sales contract; or within a reasonable time thereafter to a buyer whom you have introduced this property, I/we agree to pay in cash to you a broker’s sales commission based on 5% of the actual sales price, payable at time of closing of Contract to Purchase Real Estate or ninety (90) days after seller’s acceptance, whichever occurs first.”

On October 30, 1979, a sales representative for Clifton-Strode realty firm made arrangements with CNR for a one-time showing of the Kent property to Daniel Schmidgall. This was the only showing during the time CNR’s listing contract was in effect.

On December 28, 1979, eight days after CNR’s listing expired, Clifton-Strode signed a listing contract with Karolyn Kent authorizing a one-time showing of the same property to the same Daniel Schmidgall. The Clifton-Strode contract utilized the same form as the CNR contract, and contained the same extension clause. Also on December 28, Daniel Schmidgall and his wife contracted to exchange certain farm property with five family members (Edgar, Lorenza, Phillip, Mark and Theodore Schmidgall), and on January 7, 1980, these five Schmidgalls submitted an offer to purchase the Kent property for $230,000 to Clifton-Strode as agent for Kent. The offer was subject “to a complete inspection and approval of the property by Dan Schmidgall prior to closing.” Clifton-Strode received $5,000 earnest money from the buyers which was placed in an escrow account. The offer was accepted by Karolyn Kent, and the transaction was closed on February 15, 1980. On that same date, the farm exchange between the Schmidgalls took place, and title to the Kent property was vested in Daniel and Patricia Schmidgall.

Subsequently a dispute arose between the realtors concerning the broker’s commission, and Clifton-Strode filed suit against Karolyn Kent and CNR. In count I Clifton-Strode asserted a right to the entire commission of $11,500 under the December listing agreement, and after stating that the $5,000 in escrow would be applied to the commission, asked for judgment for the balance of $6,500. In count II Clifton-Strode alleged CNR’s tortious interference with the listing contract and requested damages of $6,500.

In addition to an answer denying liability, CNR filed a counterclaim, count I of which sought to recover the $11,500 broker’s commission from Kent under the August listing agreement, and count II of which asserted Clifton-Strode’s tortious interference with the August contract. In count I, CNR stated that $4,600 of the commission was owed by CNR to Clifton-Strode as the “cooperative broker.”

The cause was submitted to the trial court on motions for summary judgment by both CNR and Clifton-Strode. Karolyn Kent in the meantime had admitted liability for the broker’s commission totalling $11,500 and paid $6,500 to the clerk of the court. The other $5,000 was being held by Clifton-Strode.

The trial court entered judgment for $11,500 in favor of CNR against Karolyn Kent on count I of the counterclaim, and ordered that the commission be divided in accordance with multiple-listing rules so that Clifton-Strode would receive $4,600 as a subagent of CNR, and as a cooperating broker. The court also ruled that Karolyn Kent shall be liable for only one real estate commission arising from the sale of the property. The court also decided that there would be no recovery under count II of the counterclaim or counts I or II of the complaint. From these rulings and judgment, Clifton-Strode filed this appeal, and CNR has cross-appealed. Clifton-Strode deposited the $5,000 from its escrow account with the circuit clerk and has stipulated that it will look only to funds held by the clerk to satisfy any judgment it might obtain against Karolyn Kent.

Clifton-Strode contends that the court erred in awarding part of the broker’s commission to CNR under the August listing contract where CNR failed to find a customer ready, willing, and able to purchase the Kent property before the listing contract expired on December 20, 1979. Clifton-Strode supports this contention by citing those cases which have held that the right of a broker to receive a commission expires at the expiration of his contract. (E.g., Groome v. Freyn Engineering Co. (1940), 374 Ill. 113, 28 N.E.2d 274.) However, none of the cases cited by Clifton-Strode contained an extension clause like the one in the listing contract, which explicitly authorizes payment of a commission to CNR if a buyer, who viewed the property during the term of the contract, purchased the property within a reasonable time after the termination of the contract. Parenthetically, we note that no one disputes that the January 7, 1980, offer to purchase was within a “reasonable time” of the December 20, 1979, termination of CNR’s listing agreement.

The extension clause in the listing agreement was not ambiguous and must be given effect, as was done in Kokinis v. Kotrich (1979), 74 Ill. App. 3d 224, 392 N.E.2d 697, a case involving a similar provision in a listing agreement. We affirm the judgment entered in favor of CNR on count I of the complaint.

Clifton-Strode has also argued on appeal that CNR should have been found liable for tortious interference, but because we have concluded that the trial court was correct in awarding CNR a portion of the realtor’s commission under the agreement, we find there is no basis for the tortious interference allegations of Clifton-Strode’s count II. CNR argues that we lack jurisdiction to decide the merits of this issue because Clifton-Strode failed to specify “Count II” in the notice of appeal. We do not take such a restrictive view of our appellate jurisdiction. The notice of appeal states that Clifton-Strode appeals from the judgment entered in favor of CNR on CNR’s “Motion for Summary Judgment on Count I of the Counter-claim for a real estate commission and for Judgment in favor [CNR] and against [Clifton-Strode] on [Clifton-Strode’s] Complaint for real estate commission ***.” The prayer for relief requests reversal of the judgment as to only count I of the counterclaim and count I of the complaint, omitting any reference to count II. But the courts have held that where the notice of appeal clearly identifies the judgment appealed from, it is sufficient to stand as an appeal from the entire judgment even though only a portion of property involved in the judgment was specifically mentioned. (Department of Transportation v. Galley (1973), 12 Ill. App. 3d 1072, 299 N.E.2d 810.) It has even been held that the failure to include any prayer for relief at all is merely an error of form, not substance, and hence not such a deficiency as to be fatal to the appeal. (In re Estate of Kaluza (1978), 62 Ill. App. 3d 267, 379 N.E.2d 78.) CNR has not been prejudiced in any discernible way and should not be allowed an advantage on purely technical grounds. We conclude that we have jurisdiction to review the entire judgment order entered by the circuit court.

We also affirm the denial of CNR’s counterclaim for tortious interference with CNR’s contractual relationship with Kent. Malice is required in order to support a cause of action for tortious interference with a contract, and malice has been defined as an intent to do wrongful harm and injury without just cause. (Candalaus Chicago, Inc. v. Evans Mill Supply Co. (1977), 51 Ill. App. 3d 38, 366 N.E.2d 319.) The trial court’s ruling reflects the absence of any direct evidence of malice or intentional wrongdoing on the part of Clifton-Strode. CNR insists that malice can be inferred from the circumstances of this case, while Clifton-Strode argues that the ultimate buyers had had no contact with CNR and that the sale was a totally separate transaction from the CNR listing. Even if CNR’s is a permissible inference here we cannot say that the trial court’s refusal to find such an inference was contrary to the manifest weight of the evidence. In other words, we believe there was a bona fide dispute, not an intentional wrong.

CNR also contends that this appeal should be dismissed because Clifton-Strode has no standing to appeal from the judgment in favor of CNR against Kent. The ruling in favor of CNR involved a rejection of Clifton-Strode’s claim to the entire commission. We think Clifton-Strode has standing. CNR also argues that the controversy is moot because Clifton-Strode has since accepted $4,600 from the circuit clerk pursuant to the judgment order. We do not agree. As long as Clifton-Strode is claiming a right to the additional $6,900 commission, the controversy is not moot.

For the reasons stated, we believe the judgment of the trial court should be affirmed.

Affirmed.

SCOTT, P.J., concurs.

JUSTICE HEIPLE,

concurring in part and dissenting in part:

I dissent from that portion of the majority opinion which affirms the trial court’s denial of CNR’s counterclaim for tortious interference with CNR’s contractual relationship with Karolyn Kent. I concur in all other respects. As to the counterclaim, the majority states that malice is required to support the cause of action and that the trial court’s ruling reflects the absence of this needed element. CNR’s counterclaim was disposed of on cross motions by both parties for summary judgment.

Malice is indeed a requisite for liability. However, it is established that what is meant is not malice in the sense of ill will but rather an intentional interference without justification. (Restatement (Second) of Torts, Introductory Notes to ch. 37, secs. 766, 767 (1977); 45 Am. Jur. 2d Interference sec. 3 (1969).) The necessary legal malice is obvious in the instant case. Clifton-Strode was aware of CNR’s contract and its provisions. It was the standard multiple listing agreement which gave CNR the exclusive right to sell and advertise the Kent apartment building. As a cooperating or subagent for CNR, Clifton-Strode showed the Kent property to the ultimate buyer, Daniel Schmidgall. There is no dispute that this initial showing was during the time the CNR contract with Kent was in effect. Eight days after CNR’s listing contract expired, Clifton-Strode signed a contract with Karolyn Kent to show the same property to the same Daniel Schmidgall. Ten days later Schmidgall decided to buy the Kent property.

As the majority notes, Clifton-Strode never disputed that the Schmidgall offer to buy was within a “reasonable time” of the termination of CNR’s contract and that the clear, unambiguous terms of the contract authorize payment of a commission to CNR if a buyer who had viewed the property during the contract term, purchased within a reasonable time after the contract term.

From Clifton-Strode’s actions it is clear that it was attempting to secure the commission away from CNR. It is equally clear that this action was -without justification: Schmidgall initially viewed the property during CNR’s contract. CNR was entitled to the commission if Schmidgall decided to purchase, as he did, within a reasonable time thereafter, even if the CNR contract had terminated. For Clifton-Strode to approach Kent and engage her to enter into an exclusive listing contract for a one-time showing of the property to Schmidgall was wrongful. It was an attempt to interfere with CNR’s rights under their contract with Kent. This is malice: an intentional interference without justification.

I agree that this issue was ripe for summary judgment in view of the filing of cross motions for summary judgment by both parties. Regrettably, however, summary judgment as to CNR’s counterclaim was granted to Clifton-Strode, the wrong party. Summary judgment as to that counterclaim should have been entered in favor of CNR and damages determined. I would reverse and remand for that limited purpose.