author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD REYNOLDS, Defendant-Appellant.
    Second District
    Nos. 81—817, 82—86, 82—87 cons.
    Opinion filed July 15, 1983.

      G. Joseph Weller, Michael E Braun, and Kyle Wesendorf, all of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko, Raymond Beck, and Martin P. Moltz, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Upon his plea of guilty, defendant was convicted of armed robbery of the “Long John Silver” restaurant in Westmont, Illinois, on October 3, 1980. In this connection, the State nolle-prossed an additional count of armed robbery, a count charging criminal damage to property and two counts of armed violence all arising from the same incident. (No. 82—86.) Defendant had previously been convicted, following a jury trial, of one count of armed robbery and one count of armed violence arising from a September 9, 1980, incident at the “Pizza Hut” in Lisle. (No. 82—87.) In a joint sentencing hearing, defendant was sentenced to concurrent 60-year terms of imprisonment on the convictions. In addition, defendant was convicted after a jury trial of two counts of armed robbery and two counts of armed violence in connection with the robbery of the “Burger King” restaurant in Lombard, on September 10, 1980, and received concurrent sentences of 25 years’ imprisonment on each count. We have consolidated the appeals for opinion.

No. 82-86

1

As to the plea involving the October 3, 1980, armed robbery at the Long John Silver restaurant, defendant contends that he is entitled to a new sentencing hearing because the trial court in imposing sentence considered two prior convictions which have been reversed on appeal as aggravating factors. In support of his position, he asserts that one of the convictions listed in the presentence report was reversed in People v. Reynolds (1981), 96 Ill. App. 3d 79. This conviction, however, did not appear in the presentence report and the trial court could not have considered it. The other conviction, however, was for escape and did appear in the presentence report. This conviction was vacated in a Rule 23 order on the basis that escape was a lesser-included offense of armed robbery, of which the defendant had also been convicted. (People v. Reynolds (1982), 106 Ill. App. 3d 1160 (Rule 23 order).) The escape conviction was discussed by the prosecutor during the sentencing hearing in the present case. The trial court noted that it had considered all of the items in the presentence report, including the defendant’s prior convictions. There is nothing in the record to indicate that the trial court, at the time of sentencing, knew that the escape conviction was a lesser-included offense of the armed robbery conviction.

Although we conclude that the sentence imposed was otherwise warranted in the light of the defendant’s criminal background, we hold that the defendant’s sentence must be vacated and this cause remanded for resentencing because the trial court considered, in fixing the extended-term sentence, the escape conviction which was later reversed. People v. Buckley (1977), 44 Ill. App. 3d 1038,1039.

In Buckley, the conviction of another crime considered in sentencing was later reversed and the cause remanded for a new trial. In support of the result we cited United States v. Tucker (1972), 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589. In Tucker, the United States Supreme Court reversed and remanded because two of the convictions considered were unconstitutional for an improper failure to provide counsel to the defendant. The court posed as the issue whether the sentence in the case before the Federal District Court would have been different if the sentencing judge had known that the previous convictions had been unconstitutionally obtained. (404 U.S. 443, 448, 30 L. Ed. 2d 592, 597, 92 S. Ct. 589, 592.) While it is not clearly evident to us from the record that the trial court would have imposed a different punishment if he had known of the fact that one of the convictions indicated in the presentence report was, in fact, a lesser-included offense of another, we yet conclude that justice would be best served by vacating the defendant’s sentence and remanding the cause for resentencing. In so doing we are not to be understood as creating a per se rule for vacation and remandment where the less than a constitutional question is involved, nor should the trial court on remandment construe our opinion as a mandate that upon resentencing a lesser sentence should be imposed. Rather, the sentencing judge should consider the matter anew without relying on the escape conviction. People v. Morton (1981), 102 Ill. App. 3d 280, 282.

2

Defendant also argues that his 60-year extended-term sentence must be vacated because the trial court made no finding that the defendant’s conduct in this cause “was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3.2(b)(2).

Section 5 — 8—2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—2(a)) provides in substance that an extended term may be imposed either where defendant is convicted of any felony after having been previously convicted in Illinois of the same or greater class of felony within 10 years, or if the defendant’s criminal conduct is accompanied by “exceptionally brutal or heinous behavior indicative of wanton cruelty.”

Defendant has waived any argument that the extended-term sentence was improper because the trial court did not state its reasons for the sentence on the record, as he failed to request a statement of reasons either at the sentencing hearing or in his post-trial motion. (See People v. Davis (1982), 93 Ill. 2d 155, 162-63.) Moreover, the fact that the trial court did not expressly find or otherwise set forth in the record which of the two alternate statutory factors it relied upon in imposing the extended-term sentence does not support defendant’s position. The trial judge stated that the extended-term statute applied and that he was taking into account in that regard, among other things, the defendant’s prior convictions. The requirement that the trial court set forth the reasons for a sentence in the record (Ill. Rev. Stat. 1981, ch. 38, par. 1005—4—1(c); People v. Krug (1981) , 97 Ill. App. 3d 938, 941) does not obligate the court to recite and assign a value to each fact presented at the sentencing hearing. People v. Lucien (1982), 109 Ill. App. 3d 412, 420.

Since we have previously concluded that the matter must be reheard by the court in a new sentencing hearing we will, however, state our conclusions that it was improper for the trial judge to consider criminal behavior directed against a victim in a case unrelated to the one now before the court and it would have been further erroneous to conclude that defendant’s conduct in the present case was accompanied by the exceptionally brutal or heinous behavior indicative of wanton cruelty. It would seem that any armed robbery, either expressly or impliedly, carries with it a threat that a weapon will be used if the victim does not comply with the demands of the robber. This factor does not necessarily support a finding that the behavior is exceptionally brutal or heinous. The record in this case established only that the defendant committed an armed robbery with the use of a hand gun and that he put the gun to the head of the victim and asked her where the restaurant’s money was located. There is no evidence in the record that the defendant inflicted either physical injury or emotional or mental trauma on the employees in the record.

We do not find that exceptionally brutal or heinous behavior indicative of wanton cruelty was present here. See, e.g., People v. Fieberg (1982) , 108 Ill. App. 3d 665, 669-71; People v. Lieberman (1982), 107 Ill. App. 3d 949, 959.

This is not to say that on remand the trial court may not consider that the extended-term sentence was warranted under the provisions of section 5—5—3.2(b)(2). A few months prior to being convicted of the present armed robbery, the defendant was convicted of and sentenced on two counts of armed robbery and a charge of armed violence; a month before his conviction in this case he was again convicted of three counts of armed robbery and sentenced on those charges. The convictions occurred in Illinois, the sentences had already been imposed on them at the time the defendant was sentenced in the present case, and there was no evidence that the convictions had been reversed or that the sentences had been vacated.

No. 82-87

1

Defendant appeals the concurrent extended-term sentences imposed on the convictions based on the jury verdict on the charge arising from the September 9, 1980, incident at the “Pizza Hut” in Lisle.

In this appeal defendant argues that his convictions for armed violence must be vacated because they arose from the same act, the taking of property from the victim by threatening the imminent use of force and while armed with a pistol. The State concedes, and we agree. People v. Donaldson (1982), 91 Ill. 2d 164, 170.

The sentencing issues relied upon by defendant in the appeal in No. 82—87 also include the claim that the court relied upon the previous convictions for armed violence to which we have just alluded, a subsequently vacated conviction for escape to which we have also previously alluded and a conviction for armed robbery which was subsequently reversed. See People v. Reynolds (1982), 105 Ill. App. 3d 698.

The three previously reversed convictions, all arising from a Peoria County incident, were for armed robbery, armed violence and the escape referred to in our consideration of No. 82—66.

The trial court did not specifically refer to the convictions which have been vacated and reversed but stated that he took into account all of the prior convictions. We cannot agree with the State’s argument that this poses a different situation than if he had specifically referred to a particular prior conviction as in appeal No. 82 — 66.

Inasmuch as we have previously concluded that the concurrent sentences meted out in the joint sentencing hearing must be vacated and the cause remanded for a new sentencing hearing, we will not discuss whether, in other circumstances the sentences might be upheld on the totality of the record in this particular appeal. We find no indication here that the trial judge was aware of the invalidity of any of the prior convictions from which an inference might otherwise have been drawn that they were not considered. (See State v. Fleishman (9th Cir. 1982), 684 F.2d 1329, 1346.) We would note, however, that even without the invalid convictions the record of prior convictions for serious offenses remained substantial. These included five additional armed robbery convictions, two armed violence convictions, and a kidnaping conviction. In addition, there were eight robbery and two armed robbery indictments, two armed violence indictments, and a criminal damage to property indictment pending against defendant at the time of the sentencing hearing.

2

The argument is made in this appeal also that this offense did not involve exceptional brutal and heinous behavior as a basis for an extended term. While in this case there was testimony that the defendant armed with a gun threatened to “blow [the victim’s] brains out,” we again cannot agree, for the reasons previously stated in the appeal in No. 82 — 66, that the conduct here involved exceptionally brutal and heinous behavior as perceived under the statute.

No. 81-817

Defendant contends, as to his conviction of the armed robbery and armed violence arising from the September 10, 1980, incident at the Burger King restaurant in Lombard, that the trial court abused its discretion by not granting his motion for a severance of the charges, that the court erred in denying his in limine motion to prevent an in-court identification by a witness who viewed him at a pretrial appearance, that it was error to admit into evidence sunglasses which were not identified as having been worn by the defendant during the Burger King robbery, and that a requested instruction on robbery as a lesser-included offense of armed robbery should have been submitted. He also contends that a new sentencing hearing is required and that his convictions for armed violence must be vacated because of the one-act one-crime rule.

1

In this appeal counts I and II of the indictment allege that the defendant and Edward Miller committed armed robbery and armed violence in connection with the September 10, 1980, incident at the Burger King restaurant in Lombard and that defendant and Miller also committed armed robbery, armed violence and attempted aggravated kidnaping in an incident involving John Byrd on September 10, 1980. Defendant argues that the trial court should have severed the trials of the Burger King and the Byrd robberies because the two were not part of the same comprehensive transaction as required by statute. (Ill. Rev. Stat. 1981, ch. 38, par. 111—4.) We disagree.

The most important factors to consider in deciding whether offenses are part of the same comprehensive transaction are their proximity in time and location and the identity of evidence between the two offenses. People v. Freeland (1981), 103 Ill. App. 3d 94, 98.

The evidence was that the armed robbery occurred at the Burger King restaurant in Lombard on September 10, 1980, beginning at approximately 11 p.m. John Byrd was an Oak Brook Terrace police officer. He testified that on September 10, 1980, at approximately 11:42 p.m., at a location IV2, miles from the Lombard Burger King, he stopped a 1968 green Plymouth for speeding. The passenger in the car walked back to Byrd, and told him not to move and that he had a gun. The officer identified defendant Reynolds as the passenger and said he had a small chrome-plated .25-caliber automatic in his right hand. Reynolds took Byrd’s service revolver and ordered him to sit in the passenger seat of the squad car, and when he was unable to do this because his brief case was strapped to that seat, defendant told Byrd to get into the back seat. As Reynolds tried to open the back door, Byrd ran to a nearby restaurant. The defendant then drove away in the police car. Both the Plymouth and the squad car were recovered later that night. A Burger King cup and two hats were found in the seat of the Plymouth. One of the hats had been identified by witnesses as being the same type of hat worn by Reynolds during the Burger King robbery. There was also a pair of sunglasses found in the Plymouth which were similar to those described by Burger King witnesses as worn by the robber.

On this record we agree with the State’s argument that the armed robbery of Officer Byrd was the outgrowth of the Burger King robbery; the defendant was obviously fleeing the scene of that crime within minutes after, from witnesses’ testimony, the defendant had left the Burger King restaurant, with instruments of the crime still in the car.

The principal issue in the Burger King incident was the identity of the robber. The second offense supplied evidence which linked the defendant with the hat, gun and sunglasses that the witnesses in the first offense described. It was therefore not error to refuse the motion for a severance based on the court’s exercise of discretion. See People v. Mikel (1979), 73 Ill. App. 3d 21, 27; People v. Daniels (1976), 35 Ill. App. 3d 791, 797-98.

2

Defendant also argues that the trial court should have granted his motion in limine by which he sought to bar the identification testimony of Janice Jelinek, a Burger King employee who witnessed the robbery. He argues that the identification was tainted by an impermissibly suggestive, though fortuitous, pretrial confrontation. Apparently Jelinek was with a class on a visit to the courthouse and observed the defendant in the courtroom. According to defense counsel’s recollection of what Jelinek told him, the defendant’s case was being called on May 27, 1981, and defendant approached the bench. As a result of observing him, Jelinek was able to inform the State’s Attorney’s office that she could identify the defendant. The record is not clear as to which of the defendant’s cases was being called on that date.

The trial judge denied the in limine motion to disqualify Jelinek from testifying to defendant’s identification but allowed defense counsel to refer to this confrontation in cross-examining Jelinek.

Admissibility of identification evidence allegedly derived from suggestive pretrial confrontations or procedures is governed by principles set forth in Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243. In Manson, the court held that evidence derived from unnecessary suggestive confrontations may be admitted if the totality of the circumstances indicates that the out-of-court identification possesses sufficient indicia of reliability. (Manson v. Brathwaite (1977), 432 U.S. 98, 110, 115, 53 L. Ed. 2d 140, 151, 154, 97 S. Ct. 2243, 2251, 2253; see also People v. Lutz (1982), 103 Ill. App. 3d 976, 982.) The basic issue is whether the in-court identification is based on an out-of-court confrontation which was so impermissibly suggestive as to create a substantial risk of misidentification. (People v. McTush (1980), 81 Ill. 2d 513, 518.) The defendant has the burden to show that the pretrial confrontation is impermissibly suggestive; if this is accomplished, the State may still establish, by clear and convincing evidence from the totality of the circumstances, that the witness’ identification has an origin, based on the witness’ memory of events at the time of the crime, independent from the impermissible procedure. People v. McTush (1980), 81 Ill. 2d 513, 520.

Here the confrontation admittedly was wholly fortuitous and not planned by the police. While an accidental confrontation may still be impermissibly suggestive (see United States ex rel. Ragazzini v. Brierley (W.D. Pa. 1970), 321 F. Supp. 440, 443; Green v. Loggins (9th Cir. 1980), 614 F.2d 219), the out-of-court identification may be acceptable if it is “unprompted and positive.” People v. Lutz (1982), 103 Ill. App. 3d 976, 982; People v. Braxton (1980), 81 Ill. App. 3d 808, 816.

The record is insufficient to demonstrate that the confrontation was in any way impermissibly suggestive. In this connection it should be noted that the post-trial motion asserts error in the trial court’s failure to grant the motion in limine but does not claim that the court erred in failing to conduct a further hearing as to the conditions surrounding her identification at the accidental encounter. Under the circumstances the error, if any, would have been the failure to conduct a further hearing to determine whether or not the out-of-court confrontation was unprompted and the identification there positive. The defense counsel at that point, however, did not ask for a hearing, and on the evidence then before the court we find no error in denying the in limine motion.

Even if we were to hold that it was error to not inquire further into the circumstances of the confrontation by the court sua sponte we would find such error harmless beyond a reasonable doubt.

Another eyewitness, Darlene Lynch, made a positive identification of the defendant untainted by any pretrial encounter within the favorable conditions for identification. She testified that she saw the defendant in good light, she spoke to him prior to the offense telling him that the restaurant would be closed in a few minutes, and saw his face entirely when he was only a few feet away and later when he was only inches away. Further, Jelinek in court testified that she had been able to see the defendant for one to two minutes and his entire face unobstructed for ten seconds. She had also observed him in the restaurant prior to the robbery. She supplied the police with information of the defendant’s height, weight and clothing even if her positive identification on direct examination had been impermissibly tainted by her out-of-court confrontation. We are satisfied that her testimony in court would not have affected the outcome of the case. It was clearly brought out on cross-examination that she was not able to select the defendant’s picture from the photographic lineup although she did narrow down the selection to two or three persons including the defendant. She was not entirely certain in court as to the identification, stating that she was only about 85% sure. The weakness of her testimony was clearly before the jury and they could consider it along with the positive testimony of Darlene Lynch and the agreement among the witnesses as to the height, long hair, beard, attire, hat and sunglasses worn by the robber.

From the totality of the record we conclude that in any event Jelinek’s identification testimony in court, if error, is harmless beyond a reasonable doubt.

3

Defendant argues that the trial court erred in allowing the State to introduce sunglasses found in the glove compartment of the green Plymouth that defendant had been driving before robbing Byrd, according to Byrd’s testimony. Defendant maintains that proper foundation for introducing these glasses was lacking because the sunglasses were never specifically connected with either offense allegedly committed by defendant. This argument has been waived by defendant’s failure to object to the introduction of the sunglasses at trial or to raise the issue in a post-trial motion.

4

Defendant argues that the evidence that he did not use a weapon during the Burger King robbery though weak, was sufficient to require his instruction on simple robbery to have gone to the jury. We disagree. All the witnesses stated that defendant used a gun, with the only conflict in the testimony being as to how much of the gun they saw. Lack of any evidence contrary to proof that there was a gun, justified the trial court’s refusal to give the instruction. People v. Malaszenko (1979), 76 Ill. App. 3d 1, 7.

Defendant’s final contention in appeals Nos. 82—86 and 82—87 is that the sentences imposed upon him are excessive. In view of our conclusion that the cases be remanded for a new sentencing hearing at which the court will not consider any convictions which have been reversed or vacated, we do not need to deal with this issue here.

In No. 82—86 we uphold the judgment of the trial court denying the motion to vacate the guilty plea and affirm the judgment of conviction. The cause is remanded for a new sentencing hearing in accordance with this opinion.

In No. 82—87 the judgment of conviction of the defendant for armed robbery is affirmed, the judgment of conviction and sentence for armed violence is vacated and the cause is remanded for a new sentencing hearing.

In No. 81—817 the judgment of conviction for armed robbery is affirmed, the judgment of conviction and sentence for armed violence is vacated and the cause is remanded to the trial court for a new sentencing hearing.

Affirmed in part, vacated in part and remanded.

LINDBERG and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE ROMITI

license: Public Domain

text:
    JOSEPH V. LUKASIK, Plaintiff-Appellee and Cross-Appellant, v. RIDDELL, INC., Defendant-Appellant and Cross-Appellee.
    First District (4th Division)
    No. 82—1890
    Opinion filed June 30, 1983.
    Rehearing denied July 28, 1983.

      Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellant.
    French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Richard G. French and Dorothy F. French, of counsel), for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

While plaintiff was an employee of defendant, a shoe manufacturer, he entered into a written agreement that, to induce employee to remain in its services, defendant would upon plaintiff’s retirement at 65 or thereafter, provide certain retirement benefits; these benefits were to be forfeited if plaintiff left voluntarily or involuntarily for disability or other reason or was discharged for proper cause. Thereafter before plaintiff’s 65th birthday, he was fired by defendant after he failed to develop nine new shoe designs in about six months. He sued to recover the retirement benefits and lost wages. The trial court held that the contract was an employment contract, that the plaintiff was not discharged for good cause and therefore was entitled to recover the retirement benefits. However the trial court denied the claim for lost wages because plaintiff failed to mitigate damages. Both sides appealed. We find that the contract was not a contract for future employment; therefore, the trial court, albeit for the wrong reason, correctly ruled that plaintiff could not recover lost wages. However the trial court correctly awarded the retirement benefits provided by the contract because the plaintiff did not forfeit those benefits when he was fired, since as the trial court found, the discharge was not for good cause. Accordingly, the judgment of the trial court is affirmed.

Plaintiff was first hired by defendant in 1936 when he (plaintiff) was 18 years old. First he worked in the stockroom. At that time the company was in the business of manufacturing athletic shoes. In 1938 he learned leather tanning. From 1940 to 1942 he was in charge of the entire shoe factory. In 1942 he left the company to go into military service. In the evenings, at Mrs. Riddell’s request, he worked for defendant setting up production because it had no one to do that work. When plaintiff was released from service in 1945 he returned to defendant where he worked until 1975. In 1945 he was plant manager. His duties included scheduling production, looking over purchasing of raw material, checking quality and hiring and training people. Later he became an officer of the company. Although Everett Gordon, chairman of the board of Riddell, testified that even in 1966 plaintiff was unable to properly do his work, he was apparently so well thought of that in 1967 the company presented him an agreement to sign. This agreement, which was given to only three other officers of the company, provided retirement and death benefits. Its relevant provisions stated:

“WHEREAS, the services of Employee, his experience and knowledge of the affairs of Employer, are extremely valuable to Employer; and
WHEREAS, Employer desires that Employee continue and remain in its service and employ; and
WHEREAS, Employer has offered Employee retirement and death benefits as an incentive for him to remain in its service; and
WHEREAS, the parties hereto have agreed to certain terms and conditions in connection therewith and desire to reduce their agreement to writing,
NOW, THEREFORE, in consideration of the premises and other valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows:
1. RETIREMENT BENEFITS.
(a) Employee may retire upon the first day of a month after his sixty-fifth birthday, or at such later date as may be mutually agreed upon by Employer and Employee.
(b) Upon said retirement Employer agrees to pay to Employee the total sum of One Hundred Thousand Dollars ($100,000.00), payable at the written option of Employee in not less than 120, nor more than 240, equal monthly installments, commencing upon the 10th day following the date of the Employee’s retirement, and continuing on the 10th day of each and every month thereafter until Employee has received said total sum in full; subject, however, to the provisions of Paragraph 1 (c) hereof. Prior to the date of his retirement Employee shall designate in writing, on a form to be furnished by Employer, the number of months over which the said total sum shall be paid, and on said form Employee shall list the name(s) of his designee(s), pursuant to the option provided by Paragraph 3 hereof.
(c) In the event that Employee shall so retire, but shall die before receiving a sum equal to the total sum specified in Sub-paragraph 1(b) hereof, Employer agrees to continue to pay the said equal monthly installments to the person(s) designated in Paragraph 3 hereof, until the total sum of payments made to Employee and to said person(s) shall equal the sum of One Hundred Thousand Dollars ($100,000.00).
* * *
4. DUTIES OF EMPLOYEE.
During the period while Employee remains in the active service of Employer, Employee shall faithfully perform his duties to the best of his ability and in accordance with the directions of Employer as given to Employee through the company’s Board of Directors and the officers of Employer. Employee agrees to devote his best efforts to his services for Employer on a fulltime basis, subject to his right to receive reasonable vacations, agreed leave(s) of absence, and time off on account of temporary illness. Employee shall perform his duties in an efficient, trustworthy and businesslike manner and agrees not to become associated with, or engage in, or render service to, any other business.
5. NON-COMPETITION.
Employee agrees, during the period he is receiving retirement payments from Employer hereunder, not to become associated with, or engage in, or render services to, any other business which is competitive to the business of Employer.
* * *
7. FORFEITURE.
■Should Employee fail to perform all of the terms and conditions of this Agreement to be performed by him, or should he voluntarily or involuntarily leave the employment of Employer (other than by agreed leave(s) of absence), whether by reason of disability or otherwise, prior to the time of his retirement, or if prior to such time he is discharged for proper cause by Employer, then all unpaid benefits provided herein shall be forfeited in their entirety, and neither Employee nor person(s) designated in Paragraph 3 hereof shall have any rights whatsoever thereto.”

Everett Gordon and Gerald Morgan, president of the company in 1967, were present at the time the agreement was signed. Plaintiff was told that he had a future at the company and the agreement was to encourage his ability to work and have confidence in himself. The purpose of the agreement was to keep him with the company. Neither Morgan nor Gordon told him anything that differed from the terms of the agreement. No one told him the agreement guaranteed his employment or that he could not be fired.

Thereafter the company expanded; production increased and more people were hired. Conversely, in the seventies, plaintiffs duties were decreased and limited. Over a period of time he was relieved of his responsibilities for component parts, purchasing and quality control. By the early 1970’s, plaintiff’s responsibilities were limited to duties in shoe planning and design under the supervision of Richard Medley. Besides designing the shoe, he and Medley were responsible for preliminary “costing” of materials for shoes, for determining the sequence of routing of the shoe manufacture, together with the materials used in the shoes and for determining the tooling and machinery necessary for manufacture. Plaintiff also directed the model makers. In addition he presented the product to the dealers and salesmen. For the three or four years before he was terminated, plaintiff had no decision-making authority. Once plaintiff designed a shoe, that design would be submitted to a committee which would determine the feasibility of the design and the costs of production. A prototype would then be put through the plant on a pilot basis to measure what actually occurred. Plaintiff was not in charge of that. All the shoes defendant sold, except those in public domain, were designed by plaintiff.

Plaintiff testified that from 1967 to the time he was discharged there was no complaint about his work. No one ever informed him that he was not performing his work satisfactorily. Defendant admitted that his work until 1976 was satisfactory and its witnesses testified that plaintiff was always a hard worker, one of the most loyal people who ever worked for defendant and always enthusiastic about his work.

On January 16, 1976, plaintiff was discharged. The personnel status change sheet he was given at that time stated that the reason was “reduction in work force.”

Plaintiff testified that Everett Gordon informed him on January 16 that Wynn International which had purchased defendant, had decided to cut down on their budget and plaintiff was relieved of his duties. Everett said plaintiff had not done anything wrong; the discharge was primarily due to economic conditions. Plaintiff offered to take a cut in salary but was refused.

According to Everett Gordon and Frank Gordon, then president of defendant, in 1975 because of foreign competition the company determined to introduce nine new shoes in the fall, five in football and four in baseball. While it normally would take a year before a new shoe would be in a position to start selling in the fall, the commitment to design the nine new shoes was not made until January of 1975. Defendant needed samples of the shoes by August 1975. Enough of the product to show salesmen was necessary by September and full production by October 1975. There was no evidence as to when plaintiff was told of the plans but even assuming he was told in January he was expected to do nine times the usual work in much less than the usual time with no added personnel. Not surprisingly it was not done. In September defendant had handmade models. When Frank Gordon conferred with Medley all he got were promises. The new shoes were put on the market in the spring of 1976, several months after plaintiff was fired. As the shoes were manufactured, they were not up to the company’s usual quality. While both Gordons testified as to the poor quality, there was no evidence directly connecting plaintiff with the quality failure, particularly since Medley, not plaintiff, supervised the work and, of course, plaintiff was no longer with the company when the work was completed. Furthermore, as Frank Gordon testified, before 1975 the company had been slow to put in new equipment and in 1976 it had to work with production tools which were inadequate. As Frank stated “*** with all the juryrigging that we did attempt, we never did make some of these products in the right.” Likewise there was no evidence to indicate whether the plan to produce nine shoes in such a short time was feasible.

According to the Gordons both Medley and plaintiff were fired because of the shoe debacle.

I

The contract signed by the parties clearly and unambiguously promised the plaintiff certain retirement benefits unless he forfeited them. While, as stated by the contract, the promise was made in order to induce the plaintiff to continue in its employ, the contract also specifically provided that the only inducement made was the offering of retirement and death benefits:

“WHEREAS, Employer desires that Employee continue and remain in its service and employ; and
WHEREAS, Employer has offered Employee retirement and death benefits as an incentive for him to remain in its services.”

Since the parties listed the benefits provided as the “inducements,” those possible benefits not enumerated: namely, the guarantee of lifetime employment or employment until retirement must be presumed to be excluded. (Suga v. Suga (1962), 35 Ill. App. 2d 355, 182 N.E.2d 922; Moore v. Southern Independent Oil & Refining Co. (1945), 326 Ill. App. 112, 61 N.E.2d 684.) And plaintiff admitted at trial that when he signed the contract there was no representation the contract guaranteed his employment.

Furthermore, even if the contract could be construed to promise employment, there was no promise to employ plaintiff either for his lifetime or for a definite period of years. But where no specific duration of employment is agreed upon, generally either party may terminate at will. (Mann v. Ben Tire Distributors, Ltd. (1980), 89 Ill. App. 3d 695, 411 N.E .2d 1235; Sargent v. Illinois Institute of Technology (1979), 78 Ill. App. 3d 117, 397 N.E.2d 443, appeal denied (1980), 79 Ill. 2d 629.) Plaintiff’s contention that the term is set by the provision that “Employee may retire upon the first day of a month after his sixty-fifth birthday ***” is without merit. First, this provision which is located in the provision of the contract pertaining to retirement benefits merely sets forth a condition on which such benefits may be received. Second, the provision does not say employee must retire when he is 65, so it does not purport to limit the period of employment. “May” does not mean “shall” and is not so construed in private contracts. (Orr Construction Co. v. Department of Public Works & Buildings (1975), 30 Ill. Ct. Cl. 266; Northwestern Traveling Men’s Association v. Crawford (1906), 126 Ill. App. 468, aff’d (1907), 226 Ill. 57, 80 N.E. 736.) Accordingly plaintiff has not carried his burden of proving the existence of an agreement to employ him for a definite period. Hernandez v. Trimarc Corp. (1976), 38 Ill. App. 3d 1004, 350 N.E.2d 202, appeal denied (1976), 63 Ill. 2d 556; Long v. Arthur Rubloff & Co. (1975), 27 Ill. App. 3d 1013, 327 N.E.2d 346.

II

Although we believe the trial court erred in finding a contract of employment, this does not mean it erred in awarding plaintiff the retirement benefits. The benefits were promised in return for plaintiff’s continuing to work for defendant; plaintiff did continue to work for defendant and so fulfilled his part of the bargain. While plaintiff did not work for defendant until he was 65, this was only because he was fired. A party cannot take advantage of a condition precedent which he has rendered impossible or complain of a failure to perform which he himself has prevented. Barrows v. Maco, Inc. (1981), 94 Ill. App. 3d 959, 419 N.E.2d 634; Chicago Title & Trust Co. v. Hedges Manufacturing Co. (1980), 91 Ill. App. 3d 173, 414 N.E.2d 232, appeal denied (1981), 83 Ill. 2d 569; Ehard v. Pistakee Builders, Inc. (1969), 111 Ill. App. 2d 227, 250 N.E.2d 1.

Defendant contends, however, that the plaintiff forfeited the benefits under paragraph 7 of the contract, arguing (1) that he was discharged for cause and (2) even if it was not for cause when he was fired he left involuntarily as set forth in the contract. The burden is on the employer to prove that the employee was guilty of conduct justifying his termination. (Foster v. Springfield Clinic (1980), 88 Ill. App. 3d 459, 410 N.E.2d 604; Schaffer v. Park Bowl, Inc. (1952), 345 Ill. App. 279, 102 N.E.2d 665; Brownholtz v. Providers Life Assurance Co. (1928), 329 Ill. 42, 160 N.E. 127.) It is for the trier of fact to determine whether the employee disobeyed reasonable orders and was discharged for good cause. (Foster v. Springfield Clinic (1980), 88 Ill. App. 3d 459, 410 N.E .2d 604; Berriman v. Marvin (1895), 59 Ill. App. 440, aff’d (1896), 162 Ill. 415, 44 N.E. 719.) Here the trial court could reasonably conclude that the defendant’s order to complete nine times as much work in half the normal time was unreasonable. It could also conclude in light of the vagueness of the evidence, that there was no real proof as to who was at fault. There was, for example, no proof as to when plaintiff was instructed to design the new shoes (except that it could not have been before January), what instructions he was given or what role his supervisor played in the debacle. Furthermore, the court was entitled to disbelieve defendant’s evidence and conclude that plaintiff was discharged solely as part of a reduction in the work force.

Defendant contends that the clause barring recovery if the plaintiff “should *** involuntarily leave the employment *** whether by reason of disability or otherwise” also applies to bar recovery. Obviously the plaintiff did not leave by reason of disability. The question thus is whether the term “or otherwise” applies to a discharge not for good cause. Forfeitures are permitted only where the right to forfeiture is shown clearly and unequivocally and the language upon which an employer relies to claim a forfeiture of benefits must be strictly construed against the employer who wrote the contract and now is seeking the forfeiture. (Parenti v. Wytmar & Co. (1977), 49 Ill. App. 3d 860, 364 N.E.2d 909; and see Allabastro v. Wheaton National Bank (1979), 77 Ill. App. 3d 359, 395 N.E.2d 1212.) The words “or otherwise” must be construed to refer to events similar to disability. (People v. Capuzi (1960), 20 Ill. 2d 486, 170 N.E.2d 625.) Furthermore to construe this provision to apply to discharges even if not for good cause would render the phrase immediately following superfluous since that clause provides for forfeiture if the discharge is for good cause. Obviously there would be no need to prove the discharge was for good cause if the benefits were forfeited in any event. An agreement is to be construed to give meaning to all parts and the court must avoid a construction which renders some provisions superfluous. Puszczewicz v. American Oil Co. (1972), 6 Ill. App. 3d 1053, 286 N.E.2d 529 (abstract of opinion).

Accordingly while there was no contract guaranteeing plaintiff lifetime employment or employment until he was 65, the trial court did not err in awarding the plaintiff the retirement benefits provided for in the contract.

The judgment is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.


author: JUSTICE WHITE

text:
    MARIE HARTLEY et al., Plaintiffs-Appellees, v. CALVIN BERRY, Defendant—(Home and Automobile Insurance Company, Garnishee and Defendant-Appellant).
    First District (3rd Division)
    No. 82—1096
    Opinion filed July 13, 1983.
    Lev and Sneckenberg, of Chicago (William J. Sneckenberg, of counsel), for appellant.
    Gary B. Friedman, Ltd., of Chicago (Jay R. Giusti, of counsel), for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Garnishee-defendant, Home and Automobile Insurance Company, appeals from the judgment entered against it in the sum of $17,500 and the orders of the circuit court of Cook County denying its motion for substitution of counsel, and denying it leave to file an affirmative defense and affidavits in support thereof.

In this suit filed November 3, 1980, plaintiffs, Marie Hartley and Frances Bryan, sought damages for personal injuries and property damage incurred in an accident involving an automobile negligently operated by defendant, Calvin Berry, who was driving and was insured by garnishee defendant, Home and Automobile Insurance Company (Home and Auto). Two attempts were made to effect personal service upon Berry. The first return of service indicated that Berry was “not found,” and the second indicated that he had “moved out of state.” Plaintiffs then served the Secretary of State pursuant to section 10—301 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95½, par. 10—301), which permits constructive service on out-of-State residents. In late November 1980, Home and Auto was notified of the lawsuit against Berry; however, it made no appearance on his behalf and maintains, at this time, that it was unable to locate Berry. On July 27, 1981, a default was entered against Berry for failure to answer or appear. Subsequently, after prove up, judgment was entered against him and in favor of the plaintiffs in the sum of $17,500. Plaintiffs then served a garnishment summons on Home and Auto. In answer to interrogatories filed on February 1, 1982, Home and Auto denied it was indebted to Berry. On February 25, 1982, the trial court ordered Home and Auto to file a responsive pleading indicating whether the policy issued to Pearline Berry insured Calvin at the time of the accident, and to include in the responsive pleading any policy defense which it might assert. The matter was set over to April 1, 1982, for status report. At the hearing held on April 1, 1982, Home and Auto admitted the existence of a policy covering Berry. The court was further advised that no responsive pleading, including any policy defenses that would be asserted, had been filed as previously ordered. The attorney for Home and Auto told the court that Berry had refused to cooperate when contacted by telephone on March 29, 1982, and that a conflict of interest had arisen which prevented the same law firm from representing both Berry and Home and Auto. A request for continuance so that a different law firm could substitute for Home and Auto was denied, and judgment was entered against Home and Auto for $17,500, plus costs.

On April 21, 1982, Home and Auto, now represented by a different law firm, moved for permission to make a substitution of attorneys for Home and Auto, for leave to file an affirmative defense to the garnishment action, and requested the court to vacate its April 1 judgment. The trial court denied the motion in its entirety.

On April 29, 1982, Home and Auto moved to file affidavits in support of its motion for leave to file an affirmative defense, and for a rehearing on its previous motion. The trial court denied the motion. Home and Auto included the motion and supporting affidavits in the record on appeal. On plaintiffs’ motion to this court, we struck that portion of the record. However, pursuant to Home and Auto’s motion to reconsider filed in this court, we hold that Home and Auto properly included those affidavits in the record on appeal. Under the circumstances of this case, we cannot determine whether the trial court abused its discretion in denying Home and Auto the right to file an affirmative defense unless the affidavits supporting that defense are a part of the record on appeal. See Hassiepen v. Marcin (1974), 22 Ill. App. 3d 433, 436, 318 N.E.2d 162.

Home and Auto first contends that the trial court erred by denying its motion for leave to file an affirmative defense in the garnishment action. Home and Auto maintains that “[w]hen a garnishee denies liability one of the objects of the garnishment proceedings is to determine whether there is a debt due from the garnishee to the judgment debtor,” citing Chertack v. Santangelo (1972), 6 Ill. App. 3d 201, 204, 285 N.E.2d 209. Therefore, it is argued that garnishee defendant, Home and Auto, should have been allowed to raise the defense of noncooperation at the garnishment hearing. See Chertack v. Santangelo (1972), 6 Ill. App. 3d 201, 205; Mitchell v. Tatum (1982), 104 Ill. App. 3d 986, 433 N.E.2d 978.

Under the facts of this case we conclude that Home and Auto should have been granted leave to file the affirmative defense of noncooperation at the hearings on April 1 and April 21, 1982. The affidavits and documents filed by Home and Auto set forth the following: (1) after receiving notice of the lawsuit, Home and Auto made numerous attempts to locate Berry; (2) Home and Auto did not locate Berry until the end of March 1982; (3) at that time Berry indicated to Home and Auto that he had been a continuous resident of Illinois; (4) Home and Auto wished to challenge service on Berry which had been effected pursuant to section 10 — 301 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95½, par. 10—301) which relates to service upon out-of-State residents; and (5) Berry refused to execute an affidavit concerning his Illinois residency but indicated that he would cooperate with'Home and Auto for $500.

Under the facts presented in the affidavits, Home and Auto appears to have been diligent in attempting to secure Berry’s cooperation. (See Penn v. Progressive General Insurance Co. (1966), 74 Ill. App. 2d 32, 219 N.E.2d 857.) However, since Home and Auto was unable to locate Berry, it was prevented from preparing a defense on his behalf. Moreover, if Home and Auto had made an appearance for Berry, it may have waived its right later to raise the issue of improper service. Furthermore, when Home and Auto did contact Berry, it chose to defend by challenging service of process. Berry, however, refused to cooperate with Home and Auto and requested payment in return for his cooperation. Such action on the part of Berry might have relieved Home and Auto of liability under its policy. Accordingly, we conclude that the trial court erred in denying Home and Auto the opportunity of raising the defense of noncooperation at the garnishment hearing.

Plaintiffs argue, however, that Home and Auto is estopped from raising any affirmative defenses. Specifically, they maintain that Home and Auto violated its contractual duty to defend Berry by allowing a default judgment to be entered against him, and therefore, cannot complain of any subsequent breach or noncooperation by Berry. Plaintiffs rely on Clemmons v. Travelers Insurance Co. (1981), 88 Ill. 2d 469, 430 N.E.2d 1104, where an insurer denied liability and refused to defend its insured in the underlying negligence action and was estopped from contending at the garnishment hearing that the insured was not covered by the policy. Clemmons, however, is distinguishable. There, the insurer was in contact with its insured prior to trial but contended that he was not covered by the policy. Thus the insurance company denied that it had a duty to defend him. Here Home and Auto did not refuse to defend Berry; rather, it could not locate Berry prior to trial and, therefore, Home and Auto was prevented from preparing a defense on his behalf. Furthermore, when Berry was located after the default judgment had been entered against him, Home and Auto did attempt to defend him by challenging service of process. This was the first opportunity that Home and Auto had to prepare a defense for Berry, but he refused to cooperate with its attempts to quash service. Finally, Home and Auto could not have filed an affirmative defense in compliance with the trial court’s order of February 25, 1982. Home and Auto did not speak to Berry until March 29, 1982, and, therefore, it discovered, only a few days before the garnishment hearing on April 1, 1982, that Berry would not cooperate with its efforts. Accordingly, we believe that Home and Auto was not estopped at the garnishment hearing from raising the defense of noncooperation and presenting affidavits in support thereof.

Home and Auto also contends that the trial court erred in refusing to allow substitution of counsel where there was an unresolved conflict between the interests of Berry and those of Home and Auto. However, we need not address this issue since our disposition of the first issue requires a remand of this cause to the trial court.

For the aforementioned reasons, we reverse the judgment of the circuit court of Cook County entered against Home and Auto in the sum of $17,500 and the orders of the circuit court of Cook County denying Home and Auto’s motion for substitution of counsel, and denying it leave to file an affirmative defense and affidavits in support thereof, and we remand this cause to the trial court for proceedings consistent with this opinion.

McGILLICUDDY and RIZZI, JJ., concur.


author: JUSTICE GOLDBERG

text:
    JOHN STIEFEL, Plaintiff-Appellant, v. ILLINOIS UNION INSURANCE COMPANY, Defendant-Appellee and Cross-Appellee—(Federal Kemper Insurance Company, Defendant and Cross-Appellant; Coroon & Black of Illinois, Inc., et al., Defendants).
    First District (1st Division)
    No. 82—1883
    Opinion filed July 5, 1983.

      Cooney and Stenn, of Chicago (James T. Newman and Kathryn L. Fleischer, of counsel), for appellant.
    Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago (Victor J. Piekarski, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

John Stiefel (plaintiff) brought this action against Illinois Union Insurance Company as successor in interest to GATX Insurance Company (defendant), Federal Kemper Insurance Company (Kemper), Coroon & Black of Illinois, Inc., Myers Beatty & Company and Holly Myers, alleging wrongful refusal to defend plaintiff in an attorney malpractice lawsuit. Defendant and Kemper moved for judgment on the pleadings. (Ill. Rev. Stat. 1981, ch. 110, par. 2—619.) Defendant’s motion was granted. The trial court did not formally resolve Kemper’s motion. Plaintiff filed a notice of appeal from the judgment for defendant. Kemper filed a cross-appeal. In this court, defendant’s motion to dismiss Kemper’s cross-appeal was denied. However, Kemper has failed to file a brief, and did not pursue its cross-appeal in any manner.

The pleadings show plaintiff is an attorney. He received a letter from attorney Richard Price, in behalf of several claimants, dated December 22,1976, which stated in part:

“We have been retained by Larry LaCroix, Donna LaCroix, James York and Janis York to prosecute their claim for damages arising out of your advice, action and inaction surrounding the demise of Countryside Porsch & Audi, Inc.
* * *
Please refer this matter to your errors and omissions carrier. Unless I hear from them, suit will be filed on January 20, 1977.”

On January 19, 1977, plaintiff responded to this letter. Plaintiff offered a detailed explanation of his activities regarding the transaction. Plaintiff concluded the losses “were not of his making” and he resented the “attempt to recoup the losses by making untrue allegations of professional malpractice.” No lawsuit was filed against plaintiff on January 20, 1977. However, a malpractice suit was filed on February 3, 1978.

Plaintiff was covered by a professional malpractice insurance policy which was issued by GATX Insurance Company. The policy period was August 23,1977, to August 23,1978. The policy provided in part:

“This Policy applies to negligent acts, errors, omissions or offenses which occur anywhere in the world:
(a) during the policy period and then only if claim is first made during the policy period in which the negligent act, error, omission or offense occurred, or
(b) prior to the effective date of the Policy if claim is first made during the Policy period and providing no insured had knowledge nor could have reasonably foreseen any circumstance which might result in a claim at the effective date of the Policy and where there is no other valid and collectible insurance available to the insured for any such prior negligent act, error, omission or offense.”

In addition the application for insurance made by plaintiff’s law firm reveals the following question and negative response:

“Is the applicant after proper inquiry of each party proposed for insurance AWARE OF ANY CIRCUMSTANCE, ERROR, OMISSION OR OFFENSE WHICH MAY RESULT IN ANY CLAIM BEING MADE against the applicant, their/his predecessors in business or any of the present, past partners or employed lawyers? □ Yes S No If answered ‘yes,’ give full details.”

According to plaintiff’s amended complaint, “as of 8-23-77 [plaintiff was of the reasonable belief that the claim of Larry LaCroix, Donna LaCroix, James York, and Janis York [claimants], and their attorney *** had been long forsaken and abandoned. The first knowledge by [plaintiff] that a claim was being pursued for malpractice was by the service of summons and complaint upon him in March, 1978.” Plaintiff’s amended complaint also alleged a judgment had been entered against plaintiff for $25,000 and that another suit was pending.

Plaintiff first argues the malpractice claim was clearly within the policy. Plaintiff contends the policy is a “discovery” or “claims made policy” as distinguished from an “occurrence policy.” The former covers all allegedly negligent acts which are discovered and brought to the attention of the insurer during the policy period, no matter when the act occurred. The latter pertains only to acts which took place during the policy period. In this context, plaintiff argues the letter of December 22, 1976, was not a claim, and that a claim did not arise until suit was actually filed on February 3, 1978. We find plaintiff’s argument unpersuasive.

In construing an insurance contract, words in the policy are to be given their plain and ordinary meaning, and a court should not search for ambiguity when none exists. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 5, 429 N.E.2d 1203.) When the policy contains an explicit limitation on coverage, this language must be effectuated. Gray v. Great Central Insurance Co. (1972), 4 Ill. App. 3d 1084, 1086, 283 N.E.2d 261.

In the case at bar, the policy excludes all acts prior to the policy period unless “claim is first made during the Policy period” and “providing no insured had knowledge nor could have reasonably foreseen any circumstance which might result in a claim at the effective date of the Policy ***.” Thus, the policy clearly and unambiguously provides that a claim must actually be made during the policy period. Additionally, the insured must not have knowledge of circumstances occurring prior to the policy period from which a claim might reasonably have been foreseen. Therefore, the fundamental issue before this court is whether the letter of December 22, 1976, constitutes sufficient notice to plaintiff from which it could have reasonably been foreseen that a claim would be made against the plaintiff.

In adjudicating the sufficiency of plaintiff’s complaint, all facts well pleaded are accepted as true. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 329, 371 N.E.2d 634.) However, conclusions set out in the complaint are not so accepted. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426, 430 N.E.2d 976.) This rule applies to conclusions of fact as well as conclusions of law. (Willis v. Ohio Casualty Co. (1981), 101 Ill. App. 3d 1099, 1105, 428 N.E.2d 1061.) A judgment on the pleadings is proper if there are no material facts in dispute and where the pleadings reveal that the movant is entitled to judgment as a matter of law. August H. Skoglund Co. v. Department of Transportation (1978), 67 Ill. App. 3d 276, 279, 384 N.E.2d 849.

Plaintiff argues his allegation that he “reasonably believed” any possible claim had been forsaken and abandoned, should be accepted as a properly pleaded fact. We disagree. “Reasonableness” is a conclusion, and is therefore not admitted as true in a motion for judgment on the pleadings. (See Willis v. Ohio Casualty Co. (1981), 101 Ill. App. 3d 1099, 1105.) A court may determine an issue of reasonableness as a matter of law if the facts are not in dispute. See Rhoades v. W. E. O’Neil Construction Co. (1980), 80 Ill. App. 3d 1117, 400 N.E.2d 1035.

In the case at bar there are no facts in dispute. Plaintiffs conclusion of reasonableness is supported only by his letter of response to the letter from the claimants’ attorney and the fact that suit was not filed on January 20, 1977, as threatened. These facts are not in dispute. On the other hand, plaintiff does not dispute that he received the letter of December 22, 1976, which clearly and unmistakenly exhibited the intention of the claimants to press a legal claim against plaintiff for damages based on alleged professional malpractice. That letter justified the able and experienced trial judge in determining that plaintiff should have “reasonably foreseen” circumstances under which a suit for malpractice might very well be filed against him.

The only Illinois case upon which plaintiff relies is Graman v. Continental Casualty Co. (1980), 87 Ill. App. 3d 896, 409 N.E.2d 387. In Graman, the claim against plaintiff, who sought coverage, was not filed until after policy expiration. Thus, the insurer had no notice of the claim until more than three years subsequent to the expiration of the policy. (See 87 Ill. App. 3d 896, 902.) Therefore, the Graman court was eminently correct in reversing a summary judgment for plaintiff and in holding that plaintiff there was not entitled to the benefits of the policy. The problem before us here is to consider and construe the letter of December 22, 1976, and determine whether coverage extended to the act in question. In our opinion, the answer which plaintiff gave to the questionnaire is completely refuted by the strong language in the letter sent to plaintiff by the attorney for the claimants. The basic problem of the insured here, as in Graman, is the fact that plaintiffs “complaint did not allege a situation which would be potentially covered under the *** policy.” (See Graman v. Continental Casualty Co. (1980), 87 Ill. App. 3d 896, 902.) Therefore, defendant here, as in Graman, had no duty to defend plaintiff in the action against him.

Plaintiff also cites and relies upon Hoyt v. St. Paul Fire & Marius Insurance Co. (9th Cir. 1979), 607 F.2d 864, and Oregon Automobile Insurance Co. v. Fitzwater (1975), 271 Or. 249, 531 P.2d 894. We find these cases inapposite to the case at bar.

In Hoyt, the United States Court of Appeals for the Ninth Circuit held that a letter written to an attorney by another lawyer questioning legal advice given by the addressee in a particular instance, did not constitute a “claim” under an insurance policy. The court classified this letter as simply a request for information. The court concluded (607 F.2d 864, 866):

“In our judgment the letter of April 5, 1974, did not constitute a claim. It was a request for information and explanation. If [plaintiff] was put on notice of any kind it was only that a claim might be expected to follow ***.”

In Oregon Automobile, an attorney was a director of a newly organized corporation. The attorney and the president of the corporation prepared three promissory notes. Sometime later, all of the directors received a letter alleging these notes constituted unregistered securities, and indicating the directors would be personally liable. The Supreme Court of Oregon affirmed a verdict based upon a finding of fact that the attorney did not have notice that a professional malpractice suit would be filed against him. However, the court was careful to stress (271 Or. 249, 259, 531 P.2d 894, 899):

“We beliéve, however, that it is clear from its decision, taken as a whole, that what it found, in effect, was that although defendant was aware of facts ‘which might reasonably be expected to be the basis of a claim or suit’ by holders of the notes against him and the other defendants in those cases as directors of the corporation, defendant was not aware of ‘any act or omission which might reasonably be expected to be the basis of a claim or suit’ against him for malpractice as an attorney and that the trial court based that conclusion upon an inference from the fact that there was no evidence that the other directors had relied in any way upon his advice as an attorney.”

On the contrary, in the case at bar, the letter received by plaintiff referred to a specific transaction in which plaintiff was retained as an attorney. Because this letter clearly and definitely expressed the intention of the claimants to bring suit against plaintiff for professional malpractice, the trial court was correct in determining as a matter of law that plaintiff had notice of circumstances which could very well have resulted in a malpractice suit against him.

Oregon Automobile serves to strengthen the legal propriety of the ruling by the trial judge in the instant case. The issue here is simply the effect and significance of the letter sent to plaintiff by the attorney for the claimants.

For these reasons, the judgment appealed from is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. HOLBERT W. CARREL, Defendant—(The People ex rel. the Honorable William H. South, Circuit Judge, Appellee, v. DENNIS J. HOGAN, Respondent-Appellant).
    Fifth District
    No. 82—124
    Opinion filed July 22, 1983.
    Dennis J. Hogan, of Murphysboro, for appellant, pro se.

      John R. Clemons, State’s Attorney, of Murphysboro (Stephen E. Norris, of State’s Attorneys Appellate Service Commission, of counsel), for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Respondent, Dennis J. Hogan, appeals from a judgment of the circuit court of Jackson County finding him guilty of direct criminal contempt of court and sentencing him to pay a fine of $500. The State has filed a motion to dismiss the appeal on the grounds that respondent failed to comply with the provisions of Supreme Court Rule 341(e)(7), which requires an appellant’s brief to include an argument “which shall contain the contentions of the appellant and the reasons therefor, which citation of the authorities and the pages of the record relied on.” 87 Ill. 2d R. 341(e)(7).

The State asserts that respondent’s brief is unintelligible and cites as an example a portion of page 9 of respondent’s brief. The statement in respondent’s brief, referred to by the prosecution, states in its entirety:

“It was after a recess that Judge South said Attorney Dennis Hogan, Respondent and Appellant here, and, non-People v. Carrel party there, could not permissibly intercede but ‘may’ advise Mitchell, who was and is, theoretically, the delegator of Judge South’s consecutive extrinsic punishment possibility advising power as well as his extrinsic and inherent sentencing powers delegor, to say nothing of her being theoretically the delegator of this Appellate Court’s power to review Judge South’s exercise of sentencing power. Attorney Hogan was not to advise ‘this Court in this proceeding.’ because Attorney Hogan the advisor of delegor Mitchell was not a ‘party’. Yet, as it turned out. Or, given No. 81 — 590 of this Court, perhaps we should say, still. The Judge said ‘If’ Hogan would then, please, be seated ‘we’ will proceed.
Well, Attorney Hogan, hardly ever a causer of togetherness only intentionally hires out like other lawyers as some threatened somebody else’s attorney in litigation oriented around actions on penal statutes whether or not it gets to Appellate Courts. So, since there has been no grant of traditional Federal Title 42 U.S.C. legislative power or authority—other than, possibly, mandamusable Chapter 38 I.R.S. Sec. 111—2(d)—to an administrative or private person to determine reasonableness of the level of pre-trial of the merits penalization of the 5th Amendment secured property or litigation interests of accused persons reached at any given time or place he has to assay probabilities and act, as does any other lawyer. The threatening vacuum perceived by police and States Attorneys to exist in their power to draft and timely anchor defense attorney proof ‘reasonableness’ law-fact in the prompt prosecution regard does not exist. Venue council of revenue revision dragnet fishing folk having employed Thornber and other unaccounted for malum in se taxable costs to the public, causing, seines necessitating unprompt harboring of prima facie only evidence, they, not a defendant’s attorney caused and created the Article I, Sec. 7 ambiguity. Trapper v. North Carolina, 101 S. Ct. 2338, People v. Adams, 46 Ill. 2d 200, 207, 263 N.E.2d 490, affirmed 92 S. Ct. 916, 405 U.S. 278, 31L. Ed. 2d 202.”

The State further asserts that the statement of facts contained in respondent’s brief is also largely incomprehensible and, therefore, does not conform with the requirements of Supreme Court Rule 341(e)(6) that such statement shall “contain the facts necessary to an understanding of the case, *** without argument or comment.” 87 Ill. 2d R. 341(e)(6).

We have considered the briefs and the State’s motion to dismiss and conclude that respondent’s brief fails to comply with the requirements of Supreme Court Rule 341 (87 Ill. 2d R. 341) and that the instant appeal should be dismissed.

The portion of respondent’s brief which is quoted is but one example of respondent’s failure properly to present the issues relied upon by him in his appeal. As stated by the court in 4.7th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 232, 371 N.E.2d 294, 297, the purpose of Supreme Court Rule 341(e) “is to require parties to proceedings before a reviewing court to present clear and orderly arguments for that court’s consideration.” Based on appellant’s failure to comply with Rule 341(e), the court in 47th & State Currency Exchange, Inc. dismissed the appeal.

Further, the State has represented in its motion to dismiss the appeal in the case at bar that the State was required to expend 40 hours of attorney time on another of respondent’s pro se appeals and over 100 hours in yet another appeal in which appellant represented the appellant, all the result of the unintelligibility of the appellant’s brief.

This court previously has expressed its view concerning the failure to comply with the requirements of Rule 341 in In re Estate of Kunz (1972), 7 Ill. App. 3d 760, 763, 288 N.E.2d 520, 523, in which it was stated:

“It is difficult to say at what point a presentation to the Appellate Court is so inadequate in its compliance with the rules and the law as not to justify consideration of the parties’ position, but it is clear that in this cause it is under the minimum. *** Reviewing courts are entitled to have the issues clearly defined, to be cited pertinent authorities and are not a depository in which an appellant is to dump the entire matter of pleadings, court action, argument and research as it were, upon the court.”

This rationale was restated in In re Marriage of Snow (1980), 81 Ill. App. 3d 1148, 1149, 401 N.E.2d 1352, 1353.

Because of the fact that respondent’s brief in the instant appeal is for the most part unintelligible, we conclude that he has failed to comply with the requirements of Supreme Court Rule 341 and that his appeal should be dismissed.

For the foregoing reasons, appellant’s brief is stricken and his appeal is dismissed.

Appeal dismissed.

JONES and EARNS, JJ„ concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS MILLER, Defendant-Appellant.
    Second District
    No. 82—80
    Opinion filed August 9, 1983.

      Thomas W. Gooch, III, of Thomas L. Ruth, Jr., & Associates, of Barrington, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Cheri A. Novak, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant was charged in Lake County by amended information with three counts of aggravated battery to a child (Ill. Rev. Stat. 1981, ch. 38, par. 12—4.3) and one count of cruelty to children and others. (Ill. Rev. Stat. 1981, ch. 23, par. 2368.) The jury was instructed on those two offenses, as well as the offenses of endangering life or health and reckless conduct. (Ill. Rev. Stat. 1981, ch. 23, par. 2354; ch. 38, par. 12—5.) It found the defendant not guilty of aggravated battery and endangering life or health, and guilty of cruelty to children and reckless conduct. After argument on defendant’s post-trial motion, the trial court vacated its judgment entered on reckless conduct, and sentenced the defendant to the Department of Corrections for two years on the cruelty-to-children-conviction.

Defendant appeals, raising these issues: (1) whether the mental state required to be proved in order to convict a defendant of the offense of cruelty to children and others is wilfulness; (2) whether the classification and punishment provisions of the offense of cruelty to children and other deny equal protection; (3) whether the court abused its discretion in imposing a sentence of imprisonment.

Our resolution of the first issue compels us to reverse the cause without remand and makes consideration of the other two issues unnecessary. A detailed recitation of the facts is likewise unnecessary. It will suffice to say that the charges against defendant were brought after the defendant’s stepson, 21/2-year-old Michael Masterson, suffered permanent and extensive injuries from burns which occurred while he was being bathed by the defendant.

Count III of the information in the case at bar charged the defendant “committed the offense of CRUELTY TO CHILDREN in violation of Illinois Revised Statute Chapter 23, Section 2368 in that the said defendant, the stepfather of Michael Masterson, a child under the age of 17 years and under the legal control of Dennis C. Miller, recklessly injured the health or limb of Michael Masterson, in that he, Dennis C. Miller, placed Michael Masterson in a hot tub of water causing severe burns to approximately 50% of Michael Masterson’s body * * * M

The defendant tendered instructions at trial which would have required the jury find he acted wilfully in causing injury to his stepson. The court refused those instructions, accepting instead the State’s instructions which required it prove the defendant acted only recklessly. Illinois Pattern Jury Instructions (IPI), Criminal, Nos. 11.23, 11.24 (2d ed. 1981).

In count I of a timely post-trial motion to quash the judgment on the verdict, the defendant alleged both the information charging him with cruelty to children and the jury instructions regarding that offense were erroneous in that they failed to set forth the correct mental state of wilfulness. The court denied the motion, and the defendant timely appealed.

During trial, after trial, and in this appeal defendant has consistently contended that the mental state which must be proved in order to sustain a conviction for cruelty to children is wilfulness, not recklessness.

Section 53 of “An Act to revise the law in relation to criminal jurisprudence” (Ill. Rev. Stat. 1981, ch. 23, par. 2368) provides:

“Any person who shall wilfully and unnecessarily expose to the inclemency of the weather, or shall in any other manner injure in health or limb, any child, apprentice or other person under his legal control, shall be guilty of a Class 4 felony.”

The defendant acknowledges that the court in People v. Smith (1978), 60 Ill. App. 3d 403, construed that the words “wilfully and unnecessarily” as used in the statute modify only the verb “expose,” and that the conduct under the remainder of the statute relating to injury to the person in any other manner may be performed with any of the mental states of intent, knowledge, or recklessness. Ill. Rev. Stat. 1981, ch. 38, pars. 4—3(b), 4—4, 4—5, 4—6; see also People v. Virgin (1978), 60 Ill. App. 3d 964, 967.

Defendant argues, however, the phrase “in any other manner” should be construed to indicate the means by which the child was injured, rather than the mental state of the offender. He argues that this court’s decision in People v. Herr (1980), 87 Ill. App. 3d 819, impliedly supports his position that wilfulness is the mental state required under the statute.

The State points out that section 4—3(b) of the Criminal Code of 1961 provides that when a statute does not include a state-of-mind element, any of the mental states of intent, knowledge or recklessness as defined by the code is applicable. (Ill. Rev. Stat. 1981, ch. 38, pars. 4—3(b), 4—4, 4—5 and 4—6.) Therefore, the State argues, a correct state of mind (recklessness) was alleged and proved at trial, and the jury was properly instructed.

The State points out that even if the phrase “in any other manner” is construed as referring to the means by which the person is injured, no mens rea is thereby supplied and the provisions of section 4 — 3(b) would still be applicable.

The State refutes defendant’s contention that People v. Herr (1980), 87 Ill. App. 3d 819, supports his argument that wilfulness is the proper mental state. It points out that the defendant there had challenged her convictions on the basis of comments made by the judge that he had found her guilty of aggravated battery and cruelty to children because “she should have realized the natural and probable consequences of her act. ***” (87 Ill. App. 3d 819, 821.) Such comments describe a mental state of negligence, which is not a mens rea permitted to be supplied by section 4 — 3(b). Despite the trial court’s comments, this court determined the evidence there sustained the defendant’s conviction for aggravated battery because it showed she “knowingly” caused her son great bodily harm. The court then observed that the same evidence of knowledge was sufficient to establish beyond a reasonable doubt that she ‘wilfully” injured her son and was, therefore, guilty of cruelty to children. The State argues that the court’s finding of wilfulness in that instance does not preclude convictions based on the other mental states permitted by section 4 — 3(b), intent and recklessness.

We agree with the defendant that the mental state of wilfulness must be proved before there may be a conviction of cruelty to children and others. In reaching that agreement, we necessarily reject the dicta in People v. Smith (1978), 60 Ill. App. 3d 403, which is the basis of the State’s argument here. Smith is also the authority cited for the definitional and issues instructions in the Illinois Pattern Jury Instructions for the offense of cruelty to children, which were the instructions given at trial over defendant’s objections. IPI Criminal Nos. 11.23, 11.24 (2d ed. 1981).

This issue has not previously been decided. The issue in Smith was whether the information which charged the defendant “wilfully did injure the health of a child” was sufficient in the absence of the allegation that the injury was inflicted “unnecessarily.” The court there determined the information was sufficient without that allegation, because it was “consistent with good criminal procedure” to interpret the statute in a way which makes necessity an affirmative defense to be raised by the defendant, rather than having the State go forward with proof of a negative. (People v. Smith (1978), 60 Ill. App. 3d 403, 404-05.) In dicta, however, the Smith court determined that the sequence of the words in the statute indicated that the adverbs “wilfully” and “unnecessarily” were intended to modify only the word “expose.” In support of that construction, the Smith court cited Lynam v. People (1895), 65 Ill. App. 687.

Indeed, Lynam appears to be the first case to have construed section 53 of “An Act to revise the law in relation to criminal jurisprudence.” (Ill. Rev. Stat. 1874, ch. 38, par. 53, now codified as Ill. Rev. Stat. 1981, ch. 23, par. 2368.) Substantively identical to the statute at issue, the defendant in Lynam was charged under the statute which provided:

“ ‘[A]ny person who shall willfully unnecessarily expose to the inclemency of the weather, or shall in any other manner injure the health or limb of any child, apprentice or other person under his legal control, shall be fined not exceeding $500, or imprisonment in the penitentiary not exceeding five years.’ ” Lynam v. People (1896), 65 Ill. App. 687, 688.

In our opinion, Lynam warrants an interpretation contrary to that placed on the statute in Smith. The defendant in Lynam challenged the sufficiency of the indictment because it did not charge that the child was injured by reason of the exposure. The court construed the statute’s first clause as making it a crime to expose a child to the inclemency of the weather, regardless of the consequences to its health. The court acknowledged that the reflex action of the second clause appeared to assume that the exposure would injure the child. However, it observed the intent of the statute was to enlarge the scope of the common law which required injury before exposure was considered criminal. Therefore, under the statute, exposure even without injury was criminal.

Significant to our consideration here, the Lynam court observed:

“It was also by the statute intended to make it a crime to in any manner willfully do such acts as to injure the health of a child under one’s legal contract. The legislature has since changed the wording of the section in question, so as to remove the ambiguity but not to change its legal meaning as we here interpret it.” (Emphasis added.) Lynam v. People (1896), 65 Ill. App. 687, 689.

We conclude Smith was incorrect in finding that the adverbial phrase “wilfully and unnecessarily” modifies only “expose.” Under Lynam’s interpretation of the intent of the statute, the clauses must be viewed as having been separated by commas, not to indicate an alternate mens rea for conduct causing injury but, rather, to emphasize that the statute changed the common law requirement that injury need occur before the predicate act of exposure was considered criminal conduct.

Thus, contrary to Smith’s interpretation, Lynam does not support the conclusion reached in Smith that the failure of the drafters to repeat “wilfully and unnecessarily” after the word “shall” in the second clause signified a different, perhaps less culpable, mens rea would support a conviction for injury inflicted by means other than exposure.

The Committee Comments describe section 4—3(b) as “offerpng] a general rule of interpretation of statutory references to mental state in defining specific offenses.” (Ill. Ann. Stat., ch. 38, par. 4— 3(b), Committee Comments, at 261 (Smith-Hurd 1972).) The cruelty to children and others statute was enacted in 1874; save for revisions in the penalty provisions, the statute is the same today. Lynam was decided in 1896. Although dicta in that case, we believe Lynam’s express pronouncement that “[i]t was also by the statute intended to make it a crime to in any manner willfully do such acts as to injure the health of a child under one’s legal contract” obviates the need to resort to the general rule of section 4—3(b) for an implied mental state. We conclude it was intended by the cruelty statute to proscribe all conduct therein committed with the mental state of wilfulness, and that proof of the mental state of recklessness will not support a conviction thereunder.

Because the defendant raised the issue in a timely post-trial motion in arrest of judgment, the sufficiency of the information must be reviewed under the stringent standards of section 111—3 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1981, ch. 38, par. 111—3; People v. Lutz (1978), 73 Ill. 2d 204, 209-10; People v. Simmons (1982), 93 Ill. 2d 94, 99; People v. Villareal (1983), 114 Ill. App. 3d 389, 394-95; People v. Smith (1983), 112 Ill. App. 3d 1033.) That section requires that the charge must be in writing, state the name of the offense, the statutory provisions alleged to have been violated, and the nature and elements of the offense charged. Compliance with these requirements is mandatory, not directory. People v. Easter (1981) , 102 Ill. App. 3d 974, 977-78.

We note Justice Mills’ dissent in People v. Smith in which he states the supreme court has not yet shut the door on the question of what standard is applicable when the sufficiency of an information is raised for the first time by a motion in arrest of judgment. (People v. Smith (1983), 112 Ill. App. 3d 1033, 1038 (Mills, J., dissenting).) His reference was to the supreme court’s decision in People v. Hall (1982) , 96 Ill. 2d 315, wherein the court found its disposition of the case made it “unnecessary to consider whether the literal requirement of section 111—3 of the Code of Criminal Procedure of 1963 (‘[a] charge shall [set forth] the nature and elements of the offense charged’ (Ill. Rev. Stat. 1977, ch. 38, par. 111—3)) or a lesser ‘actual prejudice’ standard should apply in assessing this challenge to the sufficiency of an information, raised for the first time by a motion in arrest of judgment. [Citations.]” (People v. Hall (1982), 96 Ill. 2d 315, 324.) The “actual prejudice” standard referred to is applicable when the sufficiency of the information is raised for the first time on appeal. That is, the failure to allege an element of the offense in a complaint does not per se render it void, and when attacked for the first time on appeal, a complaint is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. (People v. Pujoue (1975), 61 Ill. 2d 335, 339.) The appellate court’s decision in Hall, however, although recognizing these different standards, did not question which standard was applicable in the case before it. It found that since the defendant had raised the issue by written motion for a new trial and in arrest of judgment, “the charge must be reviewed under the stringent standards of section 111—3(a)(3) of the Code of Criminal Procedure. [Citations.]” People v. Hall (1981), 99 Ill. App. 3d 196, 199.

Notwithstanding the possibility the supreme court may be re-examining the application of these standards, we also are compelled to follow the precedent of Lutz and its progeny. We therefore conclude that the information charging the defendant with cruelty to children did not state an offense under the stringent standards of section 111—3 because it failed to allege that the defendant acted wilfully. (Ill. Rev. Stat. 1981, ch. 38, par. 111—3.) When an information does not charge an offense, the court shall grant the defendant’s motion in arrest of judgment. (Ill. Rev. Stat. 1981, ch. 38, par. 116—2(b)(1); People v. Sherman (1982), 110 Ill. App. 3d 854, 858; People v. Medreno (1981), 99 Ill. App. 3d 449; People v. Troutt (1977), 51 Ill. App. 3d 656, 660.) Accordingly, it was error for the court below to deny the defendant’s motion in arrest of judgment, and the defendant’s conviction and sentence for cruelty to children are hereby vacated, and the cause is discharged.

We note it has been stated that double jeopardy does not attach when a cause is discharged on a motion in arrest of judgment since jeopardy claims are waived by the filing of the motion (People v. Kleiss (1980), 90 Ill. App. 3d 53, 54), and the State would not be es-topped from filing a new information against the defendant. People v. Beauehemin (1979), 71 Ill. App. 3d 102, 109, appeal denied (1979), 79 Ill. 2d 613.

Conviction and sentence vacated; cause discharged.

LINDBERG and REINHARD, JJ., concur.