author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KEITH G. KETTLER, Defendant-Appellee.
    Fourth District
    No. 4—82—0242
    Opinion filed March 3, 1983.
    Rehearing denied March 30,1983.

      Anthony B. Cameron, State’s Attorney, of Quincy (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

The prosecution appeals from the “Order dismissing Counts alleging Aggravated Battery and Armed Violence preventing a retrial on said counts following a mistrial.”

The trial court’s memorandum framed the issue in the language:

“Does a verdict, judgment and sentence of a lesser included offense (reckless conduct) bar a retrial on the charges of aggravated battery and armed violence where the charges arose from a single act or course of conduct and a jury has been unable to reach a verdict on the charges of aggravated battery and armed violence?”

In bare summary of the evidence, defendant was stopped by a police officer late at night but no arrest was made. Defendant then followed the officer to the latter’s home and fired two pistol shots, one of which struck the officer in the arm. Charges under the Criminal Code of 1961 relevant to this appeal included one count for attempted murder, three counts of aggravated battery, one count of armed violence and one count of unlawful use of firearms. Ill. Rev. Stat. 1979, ch. 38, pars. 8-4, 12-4, 33A-2, 24-1.

The jury was instructed in the language and frame of Illinois Pattern Jury Instruction, Criminal Nos. 2.01, 11.13, 11.14 (2d ed. 1981) (hereinafter cited as IPI Criminal) upon the following: (1) reckless con-

duct is an included offense upon the charges heard (No. 2.01), (2) “reckless” was defined (No. 11.13) and the issues in the offense of reckless conduct were stated (No. 11.14).

There was also an Illinois Pattern Jury Instruction in the language of No. 26.01 (IPI Criminal No. 26.01):

“The defendant is charged with the offenses of attempt murder, aggravated battery, armed violence, reckless conduct and unlawful use of weapons. As to the offenses of aggravated battery there are three counts charged. You will receive 15 forms of verdict. As to each charge you will be provided with the ‘not guilty,’ ‘guilty,’ and ‘not guilty by reason of insanity’ form of verdict.”

An entry signed by the trial judge noted that during the deliberations certain written questions were submitted by the jury to the court and made a part of the court file. The entry continues:

“Jury returns into open court with verdict of not guilty of attempt murder, guilty of unlawful use of weapons, and guilty of reckless conduct. No verdicts are returned on offenses of armed violence and aggravated battery due to inability of jury to agree on a verdict on said charges.
The court enters judgment on verdicts of attempt murder and unlawful use of weapons. Court reserves ruling as to entry of judgment on verdict as to offense of reckless conduct. Court tentatively declares mistrial as to offense of armed violence and aggravated battery and discharges jury thereon. Defendant’s movement for acquittal on aggravated battery and armed violence based on reckless [conduct] verdict denied.”

The record discloses that the trial court did not thereafter enter any mistrial upon the charges of aggravated battery and armed violence on which the jury could not agree, but disposed of the matters with the following procedure: Defendant filed a motion to dismiss the charges of aggravated battery and armed violence, urging that double jeopardy had attached upon the return of the verdict of guilty upon the charge of reckless conduct. In colloquy during argument, the trial court stated that he found no reason why the court should not enter judgment on that verdict of guilty and that he did so without “deciding any ramifications as to double jeopardy.”

The prosecution thereafter filed a motion to set the charges of aggravated battery and armed violence for trial. Briefs were filed and argument heard. Thereafter, the trial court filed its memorandum opinion and entered orders which denied the motion to set the charges for trial, and granted defendant’s motion for discharge upon

the several charges of aggravated battery and armed violence.

The rationale of the trial court appears to be stated as follows:

“Since all the charges in this case arose from a single act or course of conduct, it is clear that the conviction of reckless conduct could not stand if defendant were convicted of either aggravated battery or armed violence. Since the defendant has already been convicted of and sentenced on the charge of reckless conduct, there is no way the conviction of reckless conduct could be vacated if the defendant in a new trial was convicted of either aggravated battery or armed violence.
Admittedly, this case is noteworthy in that had the jury been unable to reach a verdict on all counts, I would have ordered a new trial and rejected a bar of double jeopardy. But the facts are contrary and in my opinion, the defendant cannot be retried.”

We have noted that the trial court “tentatively” declared a mistrial as to the several charges upon which the jury was unable to agree, but that upon the event he did not do so, but rather discharged the defendant. We conclude that there was an abuse of discretion in failing to declare a mistrial upon the felonies charged and upon which the jury was unable to agree and reverse.

The measure of judicial discretion in constitutional terms is declared in Illinois v. Somerville (1973), 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066. There, a jury had been impaneled and sworn but before evidence was introduced it was found that there was a fatal defect in the indictment of jurisdictional stature sufficient to overturn a final judgment of conviction on appeal. The trial court granted a mistrial. Defendant was thereafter convicted. The Court of Appeals held that despite the fact that defendant had not been convicted or acquitted, habeas corpus should be granted for the reason that jeopardy had attached when the jury was impaneled and sworn, and that a declaration of mistrial over objection precluded a retrial under a valid indictment. The Supreme Court reversed with a quotation of Mr. Justice Story in United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165:

“We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere.” 410 U.S. 458, 461, 35 L. Ed. 2d 425, 429, 93 S. Ct. 1066, 1069.

The Somerville opinion continues to say:

“This formulation, consistently adhered to by this Court in subsequent decisions, abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial. The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated in decisions of this Court.” 410 U.S. 458, 462, 35 L. Ed. 2d 425, 429, 93 S. Ct. 1066, 1069.

In People v. Mays (1962), 23 Ill. 2d 520, 524, 179 N.E.2d 654, 656, the court stated:

“We do not think a court errs in discharging a jury when it is apparent it is hopelessly deadlocked. In the case of People v. DeFrates, 395 Ill. 439, cited by defendant, a jury was dismissed after three days of trial when it had deliberated only 45 minutes. In the DeFrates case we held that the law has invested courts of justice with the authority to discharge a jury from giving any verdict whenever, in the court’s opinion, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. Courts are to exercise a sound discretion on the subject and it is impossible to define all the circumstances which would render it proper to interfere. We are of the opinion that such a discharge constitutes no bar to further proceedings and gives no right of exemption to the prisoner from being again put on trial.”

This language was quoted and adopted in People v. Bean (1976), 64 Ill. 2d 123, 127-28, 355 N.E.2d 17, 19. We conclude that the standard in Illinois concerning the exercise of discretion in the granting of a mistrial mirrors that of the United States Supreme Court in Illinois v. Somerville (1973), 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066.

An example of the appropriate exercise of judicial discretion in finding a mistrial is developed in Crawford v. United States (D.C. Cir. 1960), 285 F.2d 661, where defendant was charged with a felony and a misdemeanor. The jury reported its verdict “guilty as charged.” The trial court dismissed the jury to return for duty upon a subsequent case. Some jurors thereafter advised that they had never voted on the felony charge, and upon such determination the court sua sponte set aside the entire verdict and ordered a new trial. Defendant’s motion for judgment of acquittal and the renewed plea of former jeopardy were denied. Defendant was found guilty and sentenced on both the felony and misdemeanor. It was contended that the trial court erred in denying the plea of former jeopardy. The opinion notes that there had been no legal verdict on the felony count prior to the discharge of the jury, and the reviewing court stated:

“However, since the jury had exhibited a considerable degree of confusion as to what it had actually done, and it could not be reassembled, we hold that it was within the discretion of the trial court to refrain from sentencing on the verdict as rendered and, instead, to set aside the entire verdict and order a new trial. Under these circumstances this case is well within the class of cases in which the defendant’s valuable right to be free from subsequent jeopardy must ‘be subordinated to the public’s interest in fair trials designed to end in just judgments.’ ” 285 F.2d 661, 663.

Defendant argues that the felony offenses charged cannot be further litigated as the mental state of defendant was necessarily determined by the verdict finding reckless conduct, and that defendant cannot again be tried where the measure of the mental state is intentional or knowing.

That is patently incorrect, for the trial court stated into the record that the jury could not agree upon the three counts of aggravated battery and the count for armed violence. The note from the jury to the court, and filed with the record, includes the language:

“We are hung over the following:

Aggravated battery because of knowingly and intentionally caused bodily harm to Mr. White.”

The same record negates defendant’s assertion of collateral estoppel upon a finding of controlling fact as found in Ashe v. Swenson (1970), 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189.

Defendant argues that section 3 — 4(a)(2) of the Criminal Code of 1961 is a statutory provision determining the issue of mental state in its language that prosecution is barred if the defendant was formerly prosecuted for the same offense, and if such prosecution “[w]as terminated by a final order or judgment *** which required a determination inconsistent with any fact or legal proposition necessary to a conviction in the subsequent prosecution.” (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4(a)(2).) We deem argument upon such provision inapposite to the issue presented for there was no “final order or judgment *** inconsistent with any fact or legal proposition necessary to a conviction in the subsequent prosecution.”

Defendant notes that section 3 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4(a)) also contains the sentence “A conviction of an included offense is an acquittal of the offense charged,” and argues that such statute suffices to bar further proceedings upon all felonies as charged. It is patent that such provision cannot be read mechanically for a jury may, and frequently does, return verdicts of guilty upon both the charged offense and its lesser included offense. (See People ex rel. Carey v. Scotillo (1981), 84 Ill. 2d 170, 417 N.E.2d 1356; People v. Bone (1982), 103 Ill. App. 3d 1066, 432 N.E.2d 329; and People v. Burnette (1981), 97 Ill. App. 3d 1015, 423 N.E.2d 1193.) A literal and mechanical application of the quoted language would result in a conviction only of the lesser included offense despite a finding of guilt upon the charged offense. We conclude that it is more rational to interpret the provision to apply to those instances where the jury returned a verdict only upon the lesser offense and was silent as to the charged offense. Such result has been termed an “implicit acquittal” upon the charged offense. Green v. United States (1957), 355 U.S. 184, 190, 2 L. Ed. 2d 199, 206, 78 S. Ct. 221, 225.

It appears that an “implicit acquittal” was the product of the former IPI Criminal No. 26.01, which included the language:

“You will be provided with_forms of verdict.
When you have unanimously agreed upon your verdict(s) you will select the formfs) which reflect your verdicts) and sign [it] [them] as I have stated.” (Emphasis added.)

Where, as here, there was an uncharged lesser included offense, as well as the offense charged and the jury so chose, it was effectively invited to be silent upon the offense charged.

People v. Keith (1978), 66 Ill. App. 3d 93, 383 N.E.2d 655, is illustrative. Defendant was charged with murder, and the jury was also instructed upon voluntary and involuntary manslaughter. The guilty verdict returned was for involuntary manslaughter, and no other verdict was returned by the jury. The reviewing court found retrial required, and concluded that there was an “implied acquittal” of murder and voluntary manslaughter. We conclude that upon this record of jury disagreement, the doctrine of “implied acquittal” would be literally fictional.

While it is the reverse of the issue found here, we conclude that the opinion in People v. Jenkins (1976), 41 Ill. App. 3d 392, 354 N.E.2d 139, is illustrative of the need to interpret section 3 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4) with consideration for the infinite complexities arising during jury trials upon criminal charges. Defendant was charged with one count of attempted murder and two counts of aggravated battery. The jury acquitted of attempted murder, but were unable to agree upon the charges of aggravated battery and a mistrial was declared. When the prosecution sought retrial on the latter charges, defendant moved for dismissal, alleging double jeopardy. The trial court granted defendant’s motion to dismiss. Upon review, the prosecution contended that dismissal was erroneous.

Defendant argued that section 3 — 4(b) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4(b)) was designed to codify the law concerning double jeopardy, and barred subsequent prosecution on a lesser included offense following acquittal of the murder offense charged. The rationale was that defendant “could have been convicted” of the included offense. The reviewing court stated:

“We disagree. While defendant correctly paraphrases the rule of law set forth in section 3 — 4(b) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 3 — 4(b)), we think the statute was never intended to be applied when the lesser included offense was charged in the indictment and a mistrial was declared because the jury failed to agree on a verdict.
In our opinion the section defendant cites prohibiting subsequent prosecution as to crimes which ‘defendant could have been convicted on the former prosecution’ applies to those instances where defendant is charged with only the greater offense and the trier of fact acquits him of that offense, remaining silent as to all lesser included offenses. In such circumstances any doubt concerning what the jury determination might have been, had they considered any of the included offenses, is resolved in favor of defendant. Silence implies acquittal and defendant may not thereafter be retried on any of the offenses.
*** Although acquitting defendant of the greater offense, the jury was not silent as to the included offenses. They did consider the charges, however, were unable to reach a unanimous verdict as to guilt or innocence. Unlike the cases where the jury is silent, we know defendant was not acquitted here. Therefore, we need not infer an acquittal.
The law has long provided for just such circumstances. The trial court may declare a mistrial if the jury is unable to reach a verdict. [Citation.] However, it is a well-established rule that the State is entitled to retry defendant on the same charge and the doctrine of double jeopardy is not a bar to this subsequent prosecution.” 41 Ill. App. 3d 392, 393-94, 354 N.E.2d 139,140.

We have found useful language in Stone v. Superior Court (1982), 31 Cal. 3d 503, 519, 646 P.2d 809, 820, 183 Cal. Rptr. 647, 658, concerning the receipt of a partial verdict. While that supreme court was dealing with an implied verdict of acquittal upon a greater charged offense, the application of the language would have eliminated the syndrome of difficulties found here. The opinion instructed the trial judge:

“When a trial judge has instructed a jury on a charged offense and on an uncharged lesser included offense, one appropriate course of action would be to provide the jury with forms for a verdict of guilty or not guilty as to each offense. The jury must be cautioned, of course, that it should first decide whether the defendant is guilty of the greater offense before considering the lesser offense, and that if it finds the defendant guilty of the greater offense, or if it is unable to agree on that offense, it should not return a verdict on the lesser offense.” 31 Cal. 3d 503, 519, 646 P.2d 809, 820,183 Cal. Rptr. 647, 658.

By reason of the conclusions reached we reverse the order of the trial court discharging defendant upon the separate charges of aggravated battery and armed violence upon which the jury could not agree and remand the cause for further proceedings not inconsistent with the views expressed.

We conclude that the rule of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, does not become operative upon the facts here presented. The usual instance of its application involves unambiguous verdicts upon those charges submitted and not where a mistrial has been declared on some verdicts and verdicts received on others. The rule of King speaks not of retrial or of the prohibition of a retrial but to multiple convictions arising from several offenses which result from a single act. Moreover, the error in entering judgment upon the verdict of reckless conduct is contrary to the rule of King, which is that the trial court is allowed and required to enter judgment on the most serious charge of which defendant has been convicted by the jury.

To aid the trial court we note the opinion in People v. Rehberger (1979), 73 Ill. App. 3d 964, 392 N.E.2d 395. Upon retrial, the issue of reckless conduct as an included offense should not be presented for the consideration of the jury.

If, upon retrial, the jury shall return a verdict or verdicts of guilty upon the charges of aggravated battery and armed violence, or either of them, any sentence imposed should provide credit for time served. North Carolina v. Pearce (1969), 395 U.S. 711, 719, 23 L. Ed. 2d 656, 665, 89 S. Ct. 2072, 2077.

The order of the trial court discharging the defendant upon the charges of aggravated battery and armed violence is reversed, and the cause is remanded for further proceedings not inconsistent with the views expressed.

• Reversed and remanded.

WEBBER, P.J., and LEWIS, J., concur.


source: Caselaw Access Project

author: JUSTICE HOPF JUSTICE LINDBERG,

license: Public Domain

text:
    ERIC FORMAN, Plaintiff-Appellee, v. ART BENSON, Defendant-Appellant.
    Second District
    No. 82—57
    Opinion filed March 1, 1983.
    Rehearing denied March 31, 1983.

      LINDBERG, J., dissenting.
    James E. Dixon, of Dixon, for appellant.
    Gary R. Gehlbach, of Dixon, Morin, Ehrmann & Gehlbach, Ltd., of Dixon, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant, Art Benson, appeals from an order of the circuit court of Lee County granting plaintiff Eric Forman specific performance of an installment contract to purchase commercial real estate owned by defendant. The following issues are raised on appeal: (1) Whether the trial court erred in applying a standard of reasonableness to the defendant’s approval of plaintiff’s credit report; (2) whether the trial court’s finding that defendant accepted the offer to purchase was against the manifest weight of the evidence, and (3) whether specific performance was properly granted.

On March 23, 1981, the plaintiff, a chiropractor, executed an offer to purchase certain real estate in Dixon, Illinois, owned by the defendant, an electrician and a refrigeration and heating repairman. The offer was communicated the same day to the defendant at a conference attended by the defendant and three realtors. One of the realtors was Ken Burnell, with whom the defendant had listed the property. The other realtors attending the conference were Cheryl Blackorby and Bill Blackorby, spouses who are partners in another real estate firm. The plaintiff was a client of the Blackorbys, who had been assisting him for the previous several months in his search for a commercial building suitable for use as a chiropractic clinic.

The conference at which the offer was communicated took place in the office of the realtor, Ken Burnell. The terms of the offer were explained to defendant by Cheryl Blackorby. The offer proposed to purchase the property for $125,000, to be paid over a 10-year period. Payments were to be based upon a 30-year amortization rate at 9% interest. Plaintiff was to take possession of the property on September 1,1981.

Before signing the agreement, defendant expressed concern over the plaintiff’s credit worthiness, stating that he “didn’t know him from a load of hay.” Plaintiff’s credit was of special significance to the defendant, since defendant was essentially “acting as a loan company” for plaintiff’s benefit. As an assurance to the defendant, Mrs. Blackorby suggested that the contract be made subject to a favorable credit report. This suggestion eased defendant’s feelings about the credit, and Ken Burnell thereafter added the following handwritten statement to the offer:

“Subject to seller’s approving buyer’s credit report, oral on March 24,1981, and written when ready.”

The meaning of this statement was not explained in any detail at the time it was inserted by Mr. Burnell. However, it was uncontroverted that the clause was inserted for defendant’s benefit. The contract was subsequently signed by defendant, and $1,000 was deposited by the plaintiff as earnest money.

Ken Burnell, defendant’s realtor, testified on behalf of plaintiff Forman. Mr. Burnell stated that defendant indicated to him that he would approve the contract if plaintiff had a good credit report. Mrs. Blackorby also indicated that defendant said he would accept the contract if the credit report was favorable. However, it was defendant’s understanding and belief that he would be given time to examine the credit documents, evaluate them and make a decision.

The day after the offer and acceptance was executed, Mrs. Blackorby telephoned the defendant and advised him that an excellent oral credit report had been received. She further told defendant that a written report would be ready in a few days. Defendant sounded agreeable to the oral report and stated he would pick up the written report when it arrived. On Friday, March 27, 1981, Mrs. Blackorby received the written credit report, as well as a personal financial statement prepared by the plaintiff and a letter from Dixon National Bank stating it would lend $35,000 to plaintiff. Mrs. Blackorby gave these documents to defendant that day, explaining the credit report in detail. Defendant stated the report “looks real good,” and that he would have his attorney review it and begin the title work on the property.

Between Friday, March 27, 1981, and May 14, 1981, the plaintiff and defendant discussed the pending sale on three occasions. Those occasions took place in the latter part of April, at which time additional financial material, including copies of income tax returns, were furnished at the defendant’s request. During those conversations the parties also discussed increases in the purchase price and the interest rate on the contract, as well as retention by the seller of certain personal property on the premises. Plaintiff testified that the seller wanted to raise the purchase price and interest rate, while the defendant testified that, prior to his rejection of the contract he did mention a different price but not in terms of an ultimatum.

On May 14, 1981, the defendant, through the office of Ken Burnell, furnished a written statement rejecting plaintiff’s credit and directing the realtor to refund the $1,000 deposit. Plaintiff attempted to discuss the matter further with the defendant, apparently making another offer as an inducement to complete the contract without litigation. Although defendant went to plaintiff’s office to discuss another offer, no other offer was accepted by him. In July of 1981 the plaintiff brought this action seeking specific performance of the agreement. On September 1, 1981, plaintiff was ready and able to pay the balance of the down payment, complete the other obligations required by the installment agreement and take possession of the premises. The defendant denied the demand for possession under the terms of the agreement.

The defendant testified that he rejected the credit information because the plaintiff had liabilities of $80,000 and liquid assets of only $24,000. When defendant sought additional information, he was furnished with a corporate tax return showing a $2,000 loss for the tax year. Based on this information, defendant believed the plaintiff was “just breaking even.” He had asked for the additional information because he believed the information furnished in the credit bureau report was not very significant. Defendant has had no prior experience as a bank or loan officer.

Thomas Schmidt, loan officer with a local savings and loan association, testified on behalf of the plaintiff. His testimony was uncontroverted to the effect that the plaintiff had an excellent credit rating. Based upon the credit application and credit report of the plaintiff, the savings and loan association would not have hesitated to extend credit to the plaintiff, although not under the terms of this particular contract.

The trial court found that defendant was held to a standard of reasonableness in his rejection of the contract on the basis of plaintiff’s credit report, and found that defendant’s rejection here was unreasonable. The court also found that defendant attempted to renegotiate the contract prior to his rejection of plaintiff’s offer and that this action waived any objection which defendant might reasonably have had to plaintiff’s credit-worthiness. Finally, waiver was also found in defendant’s delay of over 30 days “before giving notice of his intention to rely upon the credit clause in question.” The court found in favor of the plaintiff and entered a decree for specific performance. The instant appeal followed.

Defendant first argues that approval of the buyer’s credit worthiness was intended to be a matter of personal satisfaction on the part of the seller and was not subject to a standard of reasonableness, as the plaintiff claims and the trial court held.

We have discovered no case dealing with the interpretation of the specific clause in question. However, there is some Illinois case law regarding the interpretation of satisfaction clauses in general. In Reeves & Co. v. Chandler (1903), 113 Ill. App. 167, 170, the court found that satisfaction clauses generally fall into one of two classes. In one class, the decision as to whether a party is satisfied is completely reserved to the party for whose benefit the clause is inserted, and the reasons for his decision may not be inquired into and overhauled by either the other party or the courts. Cases falling into this class generally involve matters which are dependent upon the feelings, taste, or judgment of the party making the decision. (Reeves; Union League Club v. Blymyer Ice Machine Co. (1903), 204 Ill. 117, 68 N.E. 409.) The second class of cases are those in which the party to be satisfied is to base his determination on grounds which are just and reasonable. (Reeves.) These cases generally involve matters which are capable of objective evaluation, or which involve considerations of operative fitness or mechanical utility. (Reeves; Union League Club.) Matters of financial concern generally fall into this second category of cases. (See, e.g., Kadner v. Shields (1971), 20 Cal. App. 3d 251, 97 Cal Rptr. 742; Guntert v. City of Stockton (1974), 43 Cal. App. 3d 203, 117 Cal. Rptr. 601; Kagel v. First Commonwealth Co. (N.D. Cal. 1973), 409 F. Supp. 1396.) The adequacy of the grounds of a determination in this class are open to judicial scrutiny and are judged by a reasonable man standard. Reeves; Wood Machine Co. v. Smith (1883), 50 Mich. 565, 15 N.W. 906.

However, the Reeves case also made it clear that the parties may agree to a reservation in one party of the absolute and unqualified freedom of choice on a matter not involving fancy, taste, or whim. (113 Ill. App. 167, 170.) Quoting from Wood Machine Co. v. Smith (1883), 50 Mich. 565, 15 N.W. 906, the court stated:

“ ‘It sometimes happens that the right is fully reserved where it is the chief ground, if not the only one, that the party is determined to reserve an unqualified option, and is not willing to leave his freedom of choice exposed to any contention or subject to any contingency. He will not enter into any bargain except upon the condition of reserving the power to do what others might regard as unreasonable.’ ” (113 Ill. App. 167, 170-71.)

Applying this reasoning, the court in Reeves found that a satisfaction clause regarding certain machinery — a matter which would normally be capable of objective evaluation — was intended to allow the purchaser of the machinery to exercise his judgment in accepting or rejecting the machinery:

“It is apparent from the grammatical construction and arrangement of the clause in question that the words ‘and satisfactory’ were added thereto after the preceding portion was written and as a concession to defendant in error. It may be reasonably inferred that he was determined that no opportunity should be given plaintiff in error to force the outfit upon him if he finally concluded not to take it. The words referred to were undoubtedly added to the clause at his request or suggestion and for the purpose of inducing him to sign the order.” (113 Ill. App. 167,171.)

Thus, it is apparent that under Reeves the fact that the clause was added as a concession or inducement to one of the parties is significant in determining whether the reasonableness standard should be applied.

In Quinn v. Daly (1921), 300 Ill. 273, 133 N.E. 290, a provision similar to the one here in question was interpreted by the Illinois Supreme Court as providing for a decision based on personal judgment. In that case, the seller in a contract sale for realty stated that she would agree to the terms of the contract “ ‘if party is reliable and has other property clear ***.’” (300 Ill. 273, 277, 133 N.E. 290, 291.) The court held that this statement was intended to reserve in the seller the right to pass on the question of the buyer’s reliability and trustworthiness. 300 Ill. 273, 278,133 N.E. 290, 291.

In Stribling v. Ailion (1967), 223 Ga. 662, 157 S.E.2d 427, the Supreme Court of Georgia also interpreted a similar provision in a real estate sales contract as a matter of personal opinion and judgment. In that case, the vendor included the following stipulation in the contract:

“Seller *** reserves the right to run a credit investigation on purchaser and if in seller’s opinion purchaser’s credit is not sufficient, then the terms of this contract are null and void.” (223 Ga. 662, 663, 157 S.E. 2d 427, 428.)

The court held that the stipulation reserved the right in the seller not only to run a credit investigation, but also to determine in his sole discretion whether the buyer’s credit was to his satisfaction. 223 Ga. 662, 663, 157 S.E. 2d 427, 428.

Although these several cases seem to stand for the proposition that personal judgment is involved when the evaluation of a credit rating is at issue, a different conclusion was reached in Weisz Trucking Co. v. Emil R. Wohl Construction (1970), 13 Cal. App. 3d 256, 91 Cal. Rptr. 489. In that case a contract between a contractor and a subcontractor provided that “[t]he subcontractor shall furnish, if requested, a corporate surety contract bond *** written *** by a company acceptable to the contractor ***.” (13 Cal. App. 3d 256, 258, 91 Cal. Rptr. 489, 490.) The subcontractor thereafter submitted a surety bond in the amount of $168,000 which was written by a company with a Treasury rating of only $61,000. The contractor rejected the bond, stating that it wanted a company with a Treasury rating of $500,000. The contractor cancelled the contract and the subcontractors sued for breach. The appellate court held that the sufficiency of the performance bond should be determined by the application of an objective test of reasonableness. In reaching this conclusion, the court relied upon numerous decisions dealing with satisfaction clauses in which it was generally found that “where the contract calls for satisfaction as to commercial value or quality or sufficiency which can be evaluated objectively, the standard of a reasonable person should be used in determining whether or not satisfaction has been received.” 13 Cal. App. 3d 256, 262, 91 Cal. Rptr. 489, 493.

It seems clear from the foregoing cases that a reasonableness standard is favored by the law when the contract concerns matters capable of objective evaluation. However, where the circumstances are such that it is clear the provision was added as a personal concession to one of the contracting parties, the subjective, rather than the objective standard, should be applied. Reeves & Co. v. Chandler (1903), 113 Ill. App. 167.

In the present case, it is uncontroverted that the clause in question was inserted as a concession to the defendant and as an inducement to him to sign the contract, which he subsequently did. Ken Burnell testified that the addition of the provision indeed eased defendant’s mind about the plaintiff’s credit worthiness. In light of the fact that the relationship between the parties was to endure over a 10-year period of time, we think it is a reasonable construction of the provision that it was intended to allow defendant the freedom of making a personal and subjective evaluation of plaintiff’s credit worthiness. We, therefore, conclude that the trial court erred in applying a reasonableness standard to the instant case.

The personal judgment standard, however, does not allow the defendant to exercise unbridled discretion in rejecting plaintiff’s credit, but rather is subject to the requirement of good faith. (Honkomp v. Dixon (1981), 97 Ill. App. 3d 476, 422 N.E.2d 949; Kadner v. Shields (1971), 20 Cal. App. 3d 251, 97 Cal. Rptr. 742; Mattei v. Hopper (1958), 51 Cal. 2d 119, 330 P.2d 625.) In the instant case the trial court made no specific finding whether defendant Benson rejected plaintiff’s credit in good faith. However, the trial court did find that between the time the contract was executed and the time the offer was rejected, defendant attempted to renegotiate the purchase price of the building as well as the interest rate. Defendant has challenged this finding on appeal, claiming it was against the manifest weight of the evidence. We disagree. Both plaintiff and defendant testified that an increased purchase price was discussed. Thus, the trial court’s finding in this regard was supported by the record and was not against the manifest weight of the evidence. Further, we hold that while defendant may have had a basis in his personal judgment for rejecting plaintiff’s credit (i.e., outstanding debts and a $2,000 loss reflected in an income tax return), his attempted renegotiation demonstrates that his rejection was based on reasons other than plaintiff’s credit rating and was, therefore, in bad faith.

The defendant next asserts that the trial court’s finding that defendant accepted plaintiff’s offer to purchase is against the manifest weight of the evidence. In addition to the finding of an attempted renegotiation by the defendant, defendant has challenged two other findings of the trial court: (1) that defendant initially approved the credit rating and; (2) that defendant waived his right to reject the offer by waiting more than 30 days.

Because we believe defendant’s attempted renegotiation demonstrated that his rejection was in bad faith, we will not discuss the two other findings of the court which are here challenged by defendant. We do note, however, that the court’s finding of waiver was based not only on the 30-plus day delay prior to his rejection, but also on defendant’s attempted renegotiation. We agree with the trial court that this conduct, in addition to demonstrating bad faith, also constitutes a waiver of defendant’s right to reject the credit information. A waiver is an intentional relinquishment of a known right. (Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223.) To constitute a waiver the words or conduct of a party must be inconsistent with his intention to rely on the requirements of the contract. (75 Ill. App. 3d 298, 304, 393 N.E.2d 1223, 1229.) Here, the trial court found that the defendant’s attempt to renegotiate the contract at an increased purchase price and interest rate was “logically inconsistent” with any alleged disapproval of plaintiff’s credit rating. Defendant has not challenged this finding on appeal. We, therefore, agree with the trial court, and conclude that its finding of waiver in this regard was not against the manifest weight of the evidence.

Defendant’s final contention is that specific performance was not properly granted since long-term supervision would be required to enforce the terms of the contract.

The remedy of specific performance is not a matter of absolute right but is within the discretion of the court. (Lakshman v. Vecchione (1981), 102 Ill. App. 3d 629, 430 N.E.2d 199; Bissett v. Gooch (1980), 87 Ill. App. 3d 1132, 409 N.E.2d 515.) However, where a contract for the sale of real estate has been fairly entered into without any fraud or misrepresentation, specific performance will be granted to either the buyer or the seller. Bissett; Hunter v. DeMay (1970), 124 Ill. App. 2d 429, 259 N.E.2d 291.

The contract in the present case is one for the sale of real estate. The trial court found the contract was entered into “fairly and with a complete understanding on both sides.” This finding is not challenged on appeal. Although performance of this contract is to endure over a 10-year period, we do not view this fact alone as requiring a denial of specific performance, as defendant contends. The terms of the contract are clear, and performance by the parties here would not require the same detailed and complex court supervision as would be required in building and construction contracts. (See Bissett v. Gooch (1980), 87 Ill. App. 3d 1132, 409 N.E.2d 515.) Under all of the circumstances, we cannot say as a matter of law that the trial court abused its discretion in granting specific performance to the plaintiff.

For the foregoing reasons, the decree of the circuit court of Lee County granting specific performance to the plaintiff is affirmed.

Affirmed.

VAN DEUSEN, J., concurs.

JUSTICE LINDBERG,

dissenting:

I am compelled to disagree with the respected trial court and my colleagues in the majority. I believe the parties, the trial court and the majority have proceeded far deeper into the intricacies of contract law than the facts of this cause permit. I do not believe questions of reasonableness or good faith are involved where the issue is whether the seller accepted and assented to the contract.

The cases relied upon by the trial court are inapposite. In Honkomp v. Dixon (1981), 97 Ill. App. 3d 476, 422 N.E.2d 949, the contract specifically used the word “reasonable” to establish the standard of conduct of the buyer in obtaining a mortgage. Not so here. Kovacs v. Krol (1944), 385 Ill. 593, 53 N.E.2d 456, is similarly unavailing where the buyer’s inability to perform was the direct result of the failure of the seller to procure a title report which was an expressly imposed obligation of the seller. Both cases are distinguishable from the case at bar where the seller’s acceptance was conditional, and no standards were imposed by the contract on his exercise of his right to accept or reject.

The addendum to the contract “Subject to seller approving buyer’s credit report, oral on March 24, 1981, written when ready” was indisputably a condition to the seller’s acceptance of the buyer’s offer. It is an elementary rule of contract law that a condition precedent must be performed before contractual liability arises. (Godare v. Sterling Steel Casting Co. (1981), 103 Ill. App. 3d 46, 430 N.E.2d 620, and cases cited therein.) The seller’s acceptance of the offer must be unequivocal. (Milani v. Proesel (1958), 15 Ill. 2d 423.) The seller never approved the buyer’s credit report, and it is not suggested by the parties or the trial court that the seller performed this necessary act. Nor is it urged that his silence between March 23 and May 14 (except when he was solicited by the buyer two or three times in April and May) constituted an acceptance.

Further, the requirement of seller’s approval of buyer’s credit report did not limit the time which the seller had to accept or reject the credit report. Where no time period for acceptance is stated the offeree has a reasonable time within which to accept. (See generally 17 Am. Jur. 2d Contracts sec. 56 (1964).) Buyer testified he understood he was to present seller a credit report and a letter from the bank approving a potential loan. Buyer also acknowledged that three or four weeks after March 23 or March 27 he approached the seller to ascertain the reason for the delay. According to the buyer, seller asked for more evidence of buyer’s “financial capabilities,” at which time buyer showed seller his corporate tax return for 1979, his 1980 personal income tax return and he prepared a financial statement for the previous 28 months. Thus, it appears that the parties understood that seller’s approval of buyer’s credit report was not limited to the report of the credit bureau obtained March 27 but embraced other evidence. This included a bank loan approval, personal and corporate income tax returns, and a financial statement. The tax returns and financial statement were not presented to seller until three or four weeks after March 23 or March 27.

Buyer’s testimony established that the initial credit report had not satisfied seller and buyer provided the further information referred to. It is submitted that this is hardly evidence of seller’s bad faith as concluded by the majority. More importantly it demonstrates that the delay between March 27, the date the seller received the credit report, and May 14 was not unreasonable. The seller continued to try to satisfy himself of buyer’s credit for several weeks after March 27, perhaps as many as four weeks, according to the buyer. In view of the fact that nowhere in the contract is there a 30-day provision relating to acceptance, and the fact that the seller was providing the bulk of the financing of the purchase and the fact that the closing was not to occur until September 1, 1981, the additional three weeks between late April and May 14 was not an unreasonable amount of time for the seller to consider his decision to accept or reject the contract.

I conclude, contrary to the conclusions of the trial court, that there was no 30-day period for acceptance or rejection of the contract; seller had a reasonable time to accept or reject the buyer’s offer and made a timely rejection on the 14th; and, that neither the contract nor case law imposed upon the seller a standard of reasonableness in accepting or rejecting the contract. As to an implied agreement in every contract that the parties act in good faith I simply respond that there was no contract. But, also, the majority’s conclusion that the seller lacked good faith by renegotiating other terms of the contract is not supported by the evidence. The buyer approached the seller and offered more documents regarding his “financial capabilities.” During these meetings initiated by the buyer, seller indicated he might accept the contract at the original asking price of $135,000 and a half to one percent increase in the interest rate. Even if there was a contract, I would not hold that such discussions, where the seller has never indicated satisfaction with the buyer’s credit, constitute bad faith.

I would reverse the judgment of the circuit court of Lee County.


author: JUSTICE LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH CREEK, Defendant-Appellant.
    Fourth District
    No. 4—82—0271
    Opinion filed March 3, 1983.
    Rehearing denied April 4, 1983.

      Daniel D. Yuhas and Gary S. Rapaport, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Chris E. Freese, State’s Attorney, of Sullivan (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

The defendant appeals an order entered by the circuit court of Moultrie County denying his motion for leave to file an amended motion to withdraw his guilty plea to a charge of attempted homicide and to vacate the judgment entered thereon.

Defendant was charged by information with the offenses of attempt (murder) and aggravated battery in violation of sections 8 — 4(a) and 12 — 4(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 4(a), 12 — 4(b)). On February 24, 1982, he entered a written plea of guilty to the attempted murder charge. After ascertaining that defendant understood the charge against him and knowingly waived all of his legal rights, that the plea was voluntary, and that there was a factual basis for it, the court accepted defendant’s plea and sentenced him to eight years in the Department of Corrections followed by three years’ mandatory supervised release. Following the imposition of sentence, the court admonished the defendant as follows:

“ ‘Mr. Creek, it’s my duty to advise you that you have a right to appeal this judgment. Prior to doing so, you must file with the trial court within 30 days of this date a written motion asking to have the judgment vacated, and for leave to withdraw your plea of guilty, setting forth your reasons and grounds for the motion. After hearing, if the motion is allowed,’ *** ‘the plea of guilty, sentence and judgment will be vacated and a trial date set on the charge to which the plea was made.’ ”

Furthermore, the record indicates that defendant was “advised as to [Supreme Court] Rule 605(b),” which provides in pertinent part:

“Advice to Defendant * * *
(b) On Judgment and Sentence Entered on a Plea of Guilty. In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:
* * *
(5) That if he is indigent *** counsel will be appointed to assist him with the preparation of the motions.” 87 Ill. 2d R. 605(b)(5).

On March 23, 1982, the Moultrie County circuit court received from defendant a pro se document entitled “Notice of Appeal.” This document consists of a printed form which defendant filled in and conforms to all of the requirements for a notice of an appeal to the appellate court. In the space following a question as to whether the appellant is indigent and desires the appointment of appellate counsel, the defendant typed, “Yes!” Upon receipt of this document, the circuit court appointed the office of the State Appellate Defender to represent defendant on appeal. However, that office was not immediately notified of its appointment, and the record contains no positive indication as to when (or if) the State Appellate Defender’s office was so notified.

On April 22, 1982, defendant filed a “Motion to Withdraw Plea of Guilty and Vacate the Judgment” and an affidavit in support thereof. The affidavit contains allegations that defendant’s guilty plea was “induced by a promise of a charge of Aggravated Battery or a lesser charge;” that the Moultrie County State’s Attorney labored under a conflict of interest with respect to the prosecution of defendant; and that the State withheld from defendant favorable evidence which negated the elements of intent and knowledge necessary to support the attempted murder charge. At the same time, the defendant filed a motion to proceed in forma pauperis together with a supporting affidavit of assets and liabilities. On the following day, the circuit court appointed a local attorney to represent the defendant on the above motions.

On April 28, 1982, defendant’s appointed counsel filed a motion for leave to file an amended motion to withdraw defendant’s guilty plea and vacate the judgment entered thereon, and also moved that the appeal which defendant had previously taken from his guilty plea and sentence be dismissed. A hearing on this motion was held on the same date. Arthur Freesh, Moultrie County circuit clerk, testified that on March 23, 1982, his office filed defendant’s notice of appeal, and that on the next day the court appointed the office of the State Appellate Defender to represent defendant, but that that office was not notified of its appointment.

At the conclusion of the hearing, the court held that defendant’s pro se notice of appeal did not constitute a motion to withdraw his guilty plea within the meaning of Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)) and that the defendant thus did not file a valid motion to withdraw his guilty plea within 30 days of the date on which he was sentenced as required by the above rule. The court therefore denied defendant’s motion for leave to file an amended motion to withdraw his guilty plea and vacate the judgment but allowed defendant’s motion to dismiss his appeal.

The defendant’s sole contention on appeal is that the failure of the circuit court to notify the office of the State Appellate Defender of its initial appointment to represent him deprived him of the assistance of counsel. The defendant asserts that if that office had been promptly notified of its appointment, it could have preserved his right to appeal the judgment entered on his guilty plea by seeing that a timely and proper motion to withdraw his guilty plea and vacate judgment was filed.

We feel that the decision of the supreme court in People v. Frey (1977), 67 Ill. 2d 77, 364 N.E.2d 46, is controlling. Frey was a consolidation of three appeals from the dismissal by the appellate court of appeals from judgments entered upon pleas of guilty. Two of the defendants filed notices of appeal from the judgments entered on their guilty pleas within 30 days of the dates on which they were sentenced, but did not file motions to withdraw their guilty pleas and vacate the judgments entered thereon within that time period as required by Supreme Court Rule 604(d). The office of the State Appellate Defender was in both cases appointed to represent the defendant within 30 days of the date on which he was sentenced. That office apparently did not see that timely motions to withdraw the guilty pleas were filed, however. The supreme court did not hold that the failure of the State Appellate Defender to see that the appropriate motions were filed deprived the defendants of the assistance of counsel. In holding that the appeals were properly dismissed for failure of the defendants to comply with Rule 604(d), the court stated:

“The plight of the defendants is of their own making. Each was offered the services of counsel without charge. Each rejected the offer. Each was specifically admonished by the court of the necessity of withdrawing the plea of guilty within 30 days as a prerequisite to his right of appeal. If the courts are to retain their vitality and litigation is to have some finality, acts must be accomplished within the time prescribed by law.” 67 Ill. 2d 77. 85-86. 364 N.E.2d 46. 49.

Here, as in Frey, the defendant did not take advantage of the availability of appointed counsel to assist in the preparation of a motion to withdraw his guilty plea and vacate the judgment. Instead, he decided to take the initial step in the appeal of his conviction without the assistance of counsel. Although he was clearly advised by the trial court that the filing of a motion to withdraw his guilty plea and vacate the judgment entered thereon was the initial procedural step necessary in order to obtain review of the judgment entered on his guilty plea, he nevertheless filed a pro se notice of appeal. The filing of that document resulted in the appointment of the office of the State Appellate Defender to assist defendant in the prosecution of his appeal.

In recent years, representation of indigent criminal defendants in Illinois courts has become an increasingly bifurcated process in the sense that counsel who represent such defendants in proceedings which occur at the circuit court level seldom, if ever, represent them in the appeal of the orders and judgments which result from the circuit court proceedings. Although we do not imply that an indigent criminal defendant is to any extent responsible for the actual conduct of his defense, the clear demarcation which has evolved between the work performed by appointed appellate counsel and appointed trial counsel has nevertheless placed one small burden upon such defendants: When requesting appointed counsel, they must provide information relevant to the nature of the proceeding for which appointed counsel is desired sufficient to permit a determination of whether the proceeding is to take place in the circuit court or in an appellate court. The pro se notice of appeal filed by the present defendant provides no indication that the proceeding for which he requested counsel was not to take place in the appellate court. Furthermore, the defendant does not contend that he was not properly admonished that a motion to withdraw his guilty plea and vacate judgment was a prerequisite to an appeal of the judgment entered upon his guilty plea or that he misunderstood this admonishment.

In sum, the defendant elected to pursue his appeal of the judgment entered on his guilty plea in a manner contrary to that delineated in the trial court’s admonishment which he presumably understood. This action resulted in the appointment of the State Appellate Defender, who is implicitly prohibited by statute (see Ill. Rev. Stat. 1981, ch. 38, par. 208 — 10(a)) from filing the type of motion which would have been necessary in the circuit court to preserve defendant’s right to appeal the judgment entered on his plea of guilty. Therefore, the failure of the circuit court to notify the State Appellate Defender’s office of its appointment to represent defendant was

harmless error, since that office could not have provided defendant with any assistance in view of the posture of the case at the time of the appointment.

All of the cases which defendant cites in support of his argument that he was deprived of the assistance of counsel are distinguishable from the case at bar. In People v. Adams (1979), 71 Ill. App. 3d 168, 389 N.E.2d 700, People v. Kinzer (1978), 66 Ill. App. 3d 466, 384 N.E.2d 50, and People v. Moore (1976), 45 Ill. App. 3d 570, 359 N.E.2d 1065, the defendants, within 30 days of the dates on which they were sentenced, provided the circuit court with facts from which one could conclude that they desired the appointment of counsel for the purpose of filing motions to withdraw their guilty pleas and vacate the judgments imposed. In People v. Meacham (1977), 53 Ill. App. 3d 762, 368 N.E.2d 400, the defendant apparently advised the attorney who represented him at his trial that he wished to appeal the judgments entered on his guilty pleas, but that attorney did not file a motion to withdraw the guilty pleas and vacate the judgments within 30 days of the date on which defendant was sentenced. The present defendant, by contrast, provided no indication that he desired the appointment of counsel for any purpose other than the perfection of a direct appeal to this court of the judgment entered on his guilty plea, and did not at any time indicate to his trial counsel that he desired to appeal the judgment entered upon his guilty plea in the manner prescribed by Supreme Court Rule 604(d).

For the foregoing reasons, we affirm the order of the circuit court of Moultrie County denying defendant’s motion for leave to file an amended motion to withdraw his guilty plea and vacate judgment.

Affirmed.

WEBBER, P.J., and TRAPP, J., concur.


text:
    HARLAN E. SANDERS, Plaintiff-Appellee, v. THE BOARD OF TRUSTEES OF THE CITY OF SPRINGFIELD POLICE PENSION FUND, Defendant-Appellant.
    Fourth District
    No. 4—82—0256
    Opinion filed February 3, 1983.
    Rehearing denied March 2, 1983.
    Edward G. Coleman, of Springfield, for appellant.
    Steve W. Berg, of Calandrino, Logan & Berg, P.C., of Springfield, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

In this administrative review action, defendant appeals from an order of the circuit court of Sangamon County which reversed defendant’s denial of plaintiff’s application for membership in the Springfield Police Pension Fund.

Plaintiff began work as a Springfield police officer on September 4, 1979, and applied for membership in the Springfield Police Pension Fund (Fund) on the same date. Relying on the premise that Dr. Philip J. Haggerty, examining physician for the Board of Trustees of the Fund (Board), had found plaintiff physically unfit to perform the duties of a police officer, the Board rejected plaintiff’s application on November 26, 1979. The plaintiff was subsequently granted a hearing in regard to the denial of his application. Following this hearing, the Board reaffirmed its denial on July 9,1980.

On August 12, 1980, plaintiff filed a complaint for administrative review in the Sangamon County circuit court,' seeking reversal of the Board’s denial of his membership application. Following a hearing on March 20, 1981, the court reversed the Board’s decision and remanded the cause to the Board for a new hearing. Pursuant to the circuit court decision, a second hearing was held on December 23, 1981. The Board introduced into evidence a copy of a letter from Dr. Haggerty concerning the results of a physical examination of plaintiff which Haggerty performed on December 21, 1981. In this letter, Haggerty stated that plaintiff was afflicted with the following medical problems and physical abnormalities: hypertension, acute dental caries, active acne of the thorax, numerous epidermoid cysts on the scrotum and an elevated uric acid level (suggestive of a diagnosis of gout). His blood pressure at the time of the examination was 110/7o. Haggerty also noted that plaintiff sustained a broken right foot in 1979 and a broken right elbow in 1981. Haggerty concluded that the large amount of medication which plaintiff was taking kept his hypertension under good control, but that he was uncertain whether the present good control of plaintiff’s blood pressure through medication significantly affected the long-term risks of hypertension. The plaintiff’s sole evidence consisted of a handwritten note on one of Dr. Haggerty’s prescription forms which reads in its entirety:

“Harlan Sanders 12-23-81
This man is physically and mentally fit to perform the duties of a policeman at this present time.”

The note is not signed.

During the course of the hearing, members of the Board expressed concern that because of plaintiff’s condition, he could become “disabled” and thus eligible for disability benefits at the time of his choice by simply not taking the medication for his hypertension. The pension payments which he and his family would receive as a result of his becoming disabled could total a quarter million to a million dollars. At the conclusion of the hearing, the Board voted unanimously to reject plaintiff’s application for membership in the Fund.

The plaintiff again appealed the Board’s decision to the Sangamon County circuit court. Following a hearing on January 22, 1982, the court reversed the Board’s decision and ordered that plaintiff be admitted to membership in the Fund, with his membership to be retroactive to September 4,1979.

Before addressing the substantive issue presented in this case, we must first determine whether we may consider evidence as to plaintiff’s physical condition adduced at hearings prior to the December 23, 1981, hearing in evaluating the propriety of the Board’s action. The circuit court’s docket entry of March 20, 1981, which reversed the Board’s decision of July 9,1980, reads in part:

“Complaint in Administrative Review comes on for hearing. Arguments heard. The decision of Defendant is reversed and remanded for new hearing. Cause stricken.”

(Apparently no written order was entered relative to this decision.) We deem the above docket entry to be the equivalent of an order remanding the cause to the Board for a hearing de novo. A hearing de novo has the same effect as if no actions whatsoever had been instituted in the matter at issue. It is neither limited by nor dependent upon prior proceedings. (Local Liquor Control Com. v. Illinois Liquor Control Com. (1978), 59 Ill. App. 3d 1, 374 N.E.2d 1298.) It follows that an administrative decision rendered at the conclusion of a hearing de novo must stand or fall on the basis of the evidence presented at that hearing; evidence produced at prior hearings may not be relied upon to support such a decision. We therefore conclude that the only evidence which we may consider in the disposition of this appeal is that presented at the December 23,1981, hearing.

The defendant contends that the unsigned note from Dr. Haggerty was not properly admitted into evidence at the hearing held on December 23, 1981. The following colloquy concerning this note occurred at the beginning of the hearing:

“CHAIRMAN: *** Introduce into evidence a letter from Dr. Haggerty on Harlan Sanders ***.
MR. COLEMAN [attorney for the Board]: Mr. President, I’ll hand you Dr. Haggerty’s—
CHAIRMAN: I’ve got a copy here.
MR. COLEMAN: —letter and pass the matter back to the Board. This matter was referred back to the Pension Board for reconsideration of Mr. Sanders’ application to join the Pension Fund. That’s the matter currently before the Board at this time.
MR. BERG: I do have — if that’s all the evidence you have to introduce, Mr. Coleman, I have a document from Dr. Haggerty that I’d like to have marked as Petitioner’s Exhibit No. 1.
MR. COLEMAN: Have you seen this?
CHAIRMAN: Huh-uh.”

No objections were made to the introduction of this note into evidence. This fact, coupled with the discussion before and after plaintiff’s request that the note be numbered as an exhibit, establishes that both sides regarded this note as competent evidence for purposes of the decision on plaintiff’s application for membership in the Fund. Therefore, we deem this note to have been admitted into evidence at the hearing.

We now turn to the merits of the controversy before us. The principal issue in this case, as in all administrative review actions, is whether the decision of the administrative agency is contrary to the manifest weight of the evidence. In this particular case, a subsidiary question subsumed under the manifest weight of the evidence issue is the extent to which statements of examining physicians, to the effect that applicants for membership in police pension funds are fit or unfit to perform the duties of policemen, are binding on the boards of trustees of such funds in acting upon membership applications.

Our analysis of this matter must begin with section 3 — 106 of the Illinois Pension Code (Ill. Rev. Stat. 1981, ch. 1081/2, par. 3 — 106) which sets out the eligibility requirements for membership in the police pension funds which all cities, villages and incorporated towns with populations of between 5,000 and 500,000 are required to maintain. The requirement with which we are here concerned is that in order to be entitled to membership in such a fund an officer must be “found upon examination of a duly licensed physician or physicians selected by the Board [of trustees of the pension fund] to be physically and mentally fit to perform the duties of a policeman.” We have not discovered any Illinois cases which interpret the above statutory provision or which deal with the circumstances under which a police officer may properly be denied membership in a police pension fund.

There are, however, two cases interpreting a section of the Illinois Pension Code relating to firemen which is substantially similar to the section regarding police pension funds at issue here. The relevant section of the Code relating to firemen provides that in order for a firefighter to be eligible for membership in a firemen’s pension fund he must, inter alia, “[b]e found upon a medical examination by a duly licensed physician selected by the Board [of trustees of the firemen’s pension fund] to be then physically and mentally fit to perform the duties of a fireman.” Ill. Rev. Stat. 1981, ch. IO8V2, par. 4 — 107(b)(3).

In the first case to interpret the above provision, Gordan v. Board of Trustees (1966), 77 Ill. App. 2d 234, 222 N.E.2d 28, the court upheld the denial of plaintiff’s application for admission to a firemen’s pension fund on the basis of a physician’s report which stated that although plaintiff’s back was in good condition at the time of the examination, he was more prone to disability than the average individual, since he had a condition which created a tendency toward a weak back. The court stated that the decision as to whether an applicant is physically fit to perform the duties of a fireman rests with the board of trustees of a firemen’s pension fund as opposed to the examining physician, and emphasized that such boards have a fiduciary duty to preserve the fund by admitting only physically fit individuals to membership.

In Esner v. Board of Trustees (1979), 68 Ill. App. 3d 541, 386 N.E.2d 288, the board of trustees of a firemen’s pension fund was confronted with two conflicting letters concerning the physical condition of an applicant for membership. One was from the applicant’s personal physician, the other was from the board’s examining physician. After detailing the applicant’s back problems, the board’s doctor stated that he could not recommend the applicant for admission to the fund, while the applicant’s physician stated that there was no reason to believe that the applicant’s back condition would be troublesome in the future in the applicant’s present work. In remanding the cause for the presentation of additional medical evidence, the court stated that the ultimate question in the case was not whether the applicant was able to perform and function as a fireman, but whether he was at the time of submitting his application physically and mentally fit to perform the duties of a fireman. The dispositive question was whether the applicant’s back condition rendered him more prone to disability than the average fireman without the condition.

We agree with the conclusion of the Gordan court that the question of whether an applicant for membership in a municipal employee’s pension fund is physically and mentally fit to perform his job duties is best left to the determination of the board of trustees of the fund. In view of their personal knowledge of the peculiar physical and emotional demands of the policeman’s job, the members of the boards of trustees of policemen’s pension funds, the majority of whom are either active or retired police officers themselves, are obviously in the best position to determine, on the basis of relevant medical data, whether applicants for membership are physically and mentally fit to perform the duties of a police officer.

We must emphasize that our review of the propriety of the Board’s decision is limited to a determination of whether the decision is contrary to the manifest weight of the evidence presented at the hearing of December 21, 1981. (Coursey v. Board of Fire & Police Commissioners (1967), 90 Ill. App. 2d 31, 234 N.E.2d 339.) That we may have reached a different conclusion on the basis of the evidence presented to the Board is of no consequence, for a court may not substitute its judgment for that of an administrative agency. Peterson v. Board of Trustees (1971), 5 Ill. App. 3d 180, 281 N.E.2d 368.

Dr. Haggerty, in his letter of December 21, 1981, stated that plaintiff’s “long standing hypertension” was currently under good control., However, the plaintiff required “a significant amount of medication to maintain this control.” Dr. Haggerty was “not certain that good control of blood pressure at this time significantly affects the long-range risks of hypertension.” In our opinion this language, taken as a whole, is equivalent to a statement that plaintiff’s hypertension renders him more prone to disability than the average policeman. (Cf. Esner.) Since the Board could therefore reasonably conclude that plaintiff is more likely than the average police officer to become disabled and thus eligible for the payment of benefits from the Fund, the Board’s denial of plaintiff’s application for membership in the fund on the ground that he is physically unfit to perform the duties of a police officer is not contrary to the manifest weight of the evidence. This decision instead constitutes a proper exercise of the Board’s fiduciary duty to preserve the fund. The unsigned note from Dr. Haggerty dated December 23,1981, stating that plaintiff is physically fit to perform the duties of a police officer, does not mandate a contrary result, for the content of that note is merely a conclusion based on the medical evidence before the Board. The note does not contain any new or additional medical evidence. We therefore reverse the judgment of the circuit court and remand this cause with directions that the decision of the Board of Trustees of the Springfield Police Pension Fund, denying plaintiff’s application for membership in the Fund, be reinstated.

Reversed and remanded with directions.

WEBBER, P.J., and TRAPP, J., concur.


author: JUSTICE GREEN

text:
    JOHN R. PHIPPS, Adjutant General, Military and Naval Department, et al., Plaintiffs-Appellants, v. THE CIVIL SERVICE COMMISSION, Defendant.—(Gary Huff, Defendant-Appellee.)
    Fourth District
    No. 4—82—0409
    Opinion filed February 3, 1983.
    Rehearing denied March 2, 1983.
    Tyrone C. Fahner, Attorney General, of Chicago (Georgene M. Wilson, Assistant Attorney General, of counsel), for appellants.
    Gilbert Cornfield, of Cornfield & Feldman, of Chicago, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

This case concerns the question of whether the Adjutant General of the State, in his capacity as head of the Military and Naval Department (Ill. Rev. Stat. 1979, ch. 129, par. 220.22(d)), could reorganize the department by abolishing the position of Photographer II pursuant to the Personnel Code (Ill. Rev. Stat. 1979, ch. 127, par. 63bl01 et seq.). The purpose of reorganization was to ensure that all photographic work done in the department would be performed by employees who are also members of the National Guard (Guard). The Photographer II position did not require membership in the Guard, and the reorganization resulted in the layoff of the only employee filling that position, and the assignment of the photographic work to other employees whose positions required membership in the Guard.

The procedures giving rise to the litigation were initiated on October 29, 1980, when plaintiff, Major General John R. Phipps, Adjutant General of the State, acting pursuant to section 8b.l3 of the Personnel Code (Ill. Rev. Stat. 1979, ch. 127, par. 63bl08b.l3) and Rule 250 of the Personnel Rules, sent a letter to William Boys, Director of the Department of Personnel. That letter informed Director Boys of a plan of reorganization which would abolish the position of Photographer II in the Military and Naval Department held by defendant Gary Huff and would provide for a layoff of Huff. Director Boys approved the plan on November 21, 1980. On December 4, 1980, Huff appealed the layoff to the Civil Service Commission (Commission). After lengthy hearings before a hearing officer, the Commission entered an order on November 19, 1981, adopting the findings, rulings and recommendations of the hearing officer and ordering Huff to be reinstated. On December 28, 1981, plaintiffs Phipps and Louis J. Giordano, successor to Director Boys, appealed the Commission’s decision to the circuit court of Sangamon County. (Ill. Rev. Stat. 1981, ch. 127, par. 63bllla.) That court affirmed the Commission order on June 7, 1982. Plaintiffs have appealed to this court.

The Commission found that the reason for Huff’s layoff was his refusal to rejoin the Guard, of which he had been a member in prior years, and that the procedure used was a subterfuge for a discharge which could only be done by compliance with section 8b. 16 of the Code (Ill. Rev. Stat. 1979, ch. 127, par. 63bl08b.l6) and requires a showing of good cause.

The underlying facts as revealed by the evidence presented to the hearing officer were not in dispute. They fully supported a conclusion that, had Huff been willing to rejoin the Guard, the reorganization procedures would not have been initiated. Huff had been a State employee since 1962 except for his military service from 1962 to 1966. In 1972 he was appointed to his present position of Photographer II with the Military and Naval Department. Although Guard membership was not required for that position, Huff served in the Guard for a number of years but did not reenlist in 1978. Lieutenant Colonel Carl Johnson, Huff’s superior, urged Huff to rejoin the Guard, indicating that General Phipps was very anxious that he do so because: (1) If he were in the Guard, Huff would be able to use military transportation to various camps, installations and events which his duties required him to attend; and (2) Huff’s holding of his position with the Military and Naval Department without being a member of the Guard created a bad appearance. Huff testified he was threatened with loss of his job or transfer if he did not reenlist in the Guard.

In the summer of 1980 a position of Photographer III was created in the Military and Naval Department with duties similar to that of Photographer II, but with the added requirement of membership in the Guard. Lieutenant Colonel Johnson urged Huff to apply for this position, but Huff refused.

Plaintiffs were not able to produce evidence t® show that Huff’s civilian status would prevent him from riding in military vehicles that might be available. Moreover, plaintiffs contended that a purpose of the reorganization was to decentralize the photographic work. However, the testimony of Robert Allison, an employee of the Military and Naval Department, indicated that substantially the same work which Huff had been doing prior to the reorganization was still being done by other employees at the same place in Springfield where Huff had worked. Thus ample evidence existed for the Commission to find that many of the reasons given for the reorganization were not accurate.

Despite the lack of substantiation of many of the reasons given by the Military and Naval Department for the single position reorganization, we are troubled by the conclusion of the Commission that the reorganization was a subterfuge for discharging Huff because of his refusal to rejoin the Guard. Although the difference between our analysis and that of the Commission may be subtle, we deem it to be decisive. We consider the evidence to conclusively show that the reorganization was made because of the desire of the Adjutant General that those doing photographic work be members of the Guard. The close relationship between the Guard and the Military and Naval Department is a rational basis for making a reorganization to effectuate that purpose. The creation of the position of Photographer III with the requirement of Guard membership, and the attempt to get Huff to seek that position, negate any intent upon the officials of the Military and Naval Department merely to terminate Huff’s employment.

As is the rule with other administrative tribunals, the finding of facts by the Civil Service Commission will not be overturned unless they are contrary to the manifest weight of the evidence. (Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 426 N.E.2d 885.) However, there is a presumption that a departmental reorganization affecting a layoff is done in good faith. (Chestnut v. Lodge (1966), 77 Ill. App. 2d 281, 222 N.E.2d 36.) Taken most favorably to Huff, the evidence shows no other motive on the part of the officers of the Military and Naval Department than the permissible one of having the photographic work performed by persons who were members of the Guard. We thus hold the decision of the Commission to be contrary to the manifest weight of the evidence.

The decision of the Commission overturning the layoff and ordering defendant Huff reinstated, and the judgment of the circuit court of Sangamon County affirming that decision, are reversed.

Reversed.

WEBBER, P.J., and MILLS, J., concur.


author: JUSTICE KARNS

text:
    MARY BAKER, a/k/a Mary Davis, Plaintiff-Appellant, v. THE CITY OF GRANITE CITY, Defendant.—(Richard Allen, Petitioner-Appellee.)
    Fifth District
    No. 81—622
    Opinion filed February 23, 1983.
    Rehearing denied March 22, 1983.

      Ben S. Urban, of Belleville, for appellant.
    Stephen M. Tillery, of Kassly, Bone, Becker, Dix & Tillery, P.C., of Belleville, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

Richard Allen was awarded attorney fees in the circuit court of Madison County on quantum meruit for his representation of plaintiff, Mary Baker Davis, in a personal injury suit against the city of Granite City. She appeals contending that the trial court erred in allowing fees on the percentage of recovery customarily charged in contingency contracts and in allowing compensation for work performed in the city’s appeal from the judgment rendered in her favor after she discharged Allen as her attorney. She also asserts that it was improper to allow Allen to intervene in her action against the city when he failed to perfect his statutory attorney’s lien.

In June of 1973, plaintiff sustained permanent personal injuries in a fall on a sidewalk owned by defendant, Granite City. At that time plaintiff was employed as a secretary by attorney Richard Allen, and it was orally agreed that he would represent her in her claim against the city. In 1976, during settlement negotiations, a dispute arose between plaintiff and Allen over attorney fees. Plaintiff claimed that Allen had agreed to represent her free of charge in return for her promise not to file a possible workers’ compensation claim against him. Allen maintained plaintiff had agreed to pay a contingency fee equal to 33x/3% of her gross recovery. Although the dispute remained unsettled at the time of trial, Allen continued to represent plaintiff and on February 23, 1978, the jury returned a verdict in favor of plaintiff for $125,000.

The parties’ dispute over fees continued after the trial. Allen requested plaintiff to sign a form contract which gave him of the gross amount recovered or in the event of appeal, 40% of the gross recovery. Plaintiff refused to sign the contract, offering Allen 15% at the conclusion of all appeals. When further negotiations failed, plaintiff, by letter dated November 4, 1978, formally discharged Allen as her attorney. A second letter confirming the discharge .was sent to Allen by plaintiff’s substitute counsel, Ben Urban. Allen submitted the matter to general counsel of the Illinois State Bar Association for advisement. The reply indicated Allen had certain ethical duties as well as a common law duty to represent his client until relieved by court permission. Based on this advice, Allen filed additional excerpts of record and prepared plaintiff’s brief on appeal. Urban also submitted a brief. The court affirmed plaintiff’s judgment in August of 1979. (Baker v. City of Granite City (1979), 75 Ill. App. 3d 157, 394 N.E.2d 33.) The city petitioned the supreme court for leave to appeal and Allen prepared a response to the petition. Leave was denied December 1979.

The case concluded, Allen moved for an assessment of attorney fees pursuant to section 1 “An Act creating attorney’s lien and for enforcement of same” (Ill. Rev. Stat. 1981, ch. 13, par. 14), and in quantum meruit. Following a bench trial, the court determined that Allen had not agreed to represent plaintiff without charge, a finding not contested on appeal, and further determined that it was unnecessary to decide if in fact the parties had agreed upon a contingency fee. The court reasoned that in cases of discharge without cause, the appropriate recovery is the reasonable value of the services rendered. (Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 399 N.E.2d 969.) The court also ruled that a percentage figure, as well as a fixed hourly rate, is an appropriate measure of a reasonable fee. Allen was awarded 331/s% for trial work and an additional 62/s% for appellate work, for a total of 40% of plaintiff’s gross recovery.

Plaintiff first objects to the award for trial work. She claims that a percentage figure is not an appropriate measure of a. reasonable fee and that if it had not been used here, the fee would be substantially less. Plaintiff particularly relies on the supreme court decision in Fiorito v. Jones (1978), 72 Ill. 2d 73, 377 N.E.2d 1019, which applied the lodestar computation in a class action suit to review attorney fees. This computation involves multiplying the number of hours expended by a reasonable hourly charge. The resulting figure is then adjusted by use of a weighted multiplier to reflect factors relevant to class action suits such as the benefit received by the class and the contingent nature of the undertaking. The supreme court relied heavily on two earlier class action suits in which it indicated that the amount of time expended is a highly substantial factor in determining fees. (Leader v. Cullerton (1976), 62 Ill. 2d 483, 343 N.E.2d 897; Flynn v. Kucharski (1974), 59 Ill. 2d 61, 319 N.E.2d 1.) Contrary to plaintiff’s contention, we do not read Fiorito as requiring the use of the lodestar computation in the case at bar.

It is well established that a court considers several factors in determining a reasonable fee. Those factors include the skill and standing of the attorney employed, the nature of the cause and the novelty and difficulty of the questions at issue, the amount and importance of the subject matter, the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community and the benefits resulting to the client. Neville v. Davinroy (1975), 41 Ill. App. 3d 706, 711, 355 N.E.2d 86, 90; 87 Ill. 2d R. 2—106 (disciplinary rules).

In the present case, the trial court’s order illustrated that it gave careful and comprehensive consideration to the factors. The order reflected evidence that the result obtained was unusually high for the type of case and that plaintiff benefitted greatly. It noted that Allen was solely responsible for the investigation, preparation and trial of the case and that the case presented a difficult notice problem. The court correctly concluded that the usual and customary fee in the community can be expressed as a percentage. (Sullivan v. Fawver (1965), 58 Ill. App. 2d 37, 44, 206 N.E.2d 492, 495.) Both parties’ expert witnesses agreed that in 1973 the customary fee in the community for personal injury cases was 33V3% of plaintiff’s recovery.

Although Allen did not keep records of the time expended on plaintiff’s case, uncontradicted testimony by the expert witnesses established that this was the practice by plaintiffs’ attorneys in personal injury suits at that time. Further, Judge William L. Beatty, who presided over the original trial, testified that Allen was well prepared and had obviously spent many hours on the case.

While we acknowledge plaintiff’s argument that use of a percentage may result in a higher fee, we believe the evidence as reviewed here supports the fee awarded. Finding no abuse of discretion in the trial court’s use of a percentage fee, the award for trial work is affirmed.

Plaintiff has raised a question concerning the qualifications of the expert witnesses. It should be clear from our reliance on expert testimony that we found ample foundation in each case to support the court’s designation of Judge Beatty, George Moran, Sr., Bruce Cook and Richard Allen as expert witnesses.

After formal discharge by plaintiff, Allen, relying on the advice from ISBA’s general counsel, continued to prepare the case for appeal. He prepared plaintiff’s brief, additional excerpts from the record and a response to the city’s petition for leave to appeal. Allen estimated his time in preparation of the documents to be 75 hours. George Moran, Sr., based on his review of Allen’s work, estimated preparation to be 8-10 days. Urban presented oral argument before the court on appeal.

As a general rule, an attorney is not entitled to compensation after discharge. (Tobias v. King (1980), 84 Ill. App. 3d 998, 1003, 406 N.E.2d 101, 105.) To require a client to compensate both the discharged attorney and the substitute attorney would discourage clients from exercising their right to discharge. This right has consistently been protected by the supreme court. (Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 229, 399 N.E.2d 969, 974.) Thus, while we commend Allen for seeking professional advice, his reliance on the ISBA letter does not insure his right to compensation.

The evidence does indicate, however, that Urban benefitted from Allen’s work. Allen filed a response for plaintiff to the city’s petition for leave to appeal. In addition, Steven Katzman, who wrote plaintiff’s brief for Urban, testified that he used Allen’s brief as a starting point for his own work. A comparison of the two briefs is corroborative. Katzman estimated his preparation time at 25 hours while Allen testified that most of his 75 hours of appellate work were spent preparing the brief. To reach a proper balance between the client’s right to discharge and an attorney’s right to compensation for services rendered, we hold that Allen should be compensated to the limited extent that his work assisted, but did not duplicate, Urban’s work.

Plaintiff has raised the propriety of the trial court’s ruling that the ISBA letter was not hearsay. We conclude that the trial court correctly ruled that the letter was not offered to prove the truth of its contents but rather was offered to show that Allen’s actions were made in reliance on the ISBA counsel’s advice. People v. Canamore (1980), 88 Ill. App. 3d 639, 641, 411 N.E.2d 292, 294.

Finally, plaintiff claims Allen should not have been allowed to intervene under section 1 of “An Act creating attorney’s lien and on enforcement of same” (Ill. Rev. Stat. 1981, ch. 13, par. 14) because he did not comply with that section’s notice requirements. Plaintiff points out that the discharge occurred before Allen gave notice of the lien to the city. As the trial court ruled during pretrial motions, count II of Allen’s motion for fees was in quantum meruit, separate from his claim under section 1. Thus, because the trial court ultimately found in Allen’s favor on the quantum meruit count, it is unnecessary to address the notice problem under section 1.

The motion to dismiss taken with the case is denied. The judgment of the circuit court of Madison County is reversed and remanded for redetermination of the appellate fee and is affirmed in all other respects.

Affirmed in part; reversed in part and remanded.

JONES and KASSERMAN, JJ., concur.

END OF VOLUME