text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DON BURTON, Defendant-Appellant.
    Fourth District
    No. 16994
    Opinion filed October 15, 1981.
    Daniel D. Yuhas and Don L. Johnson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Hugh Finson, State’s Attorney, of Monticello, for the People.
   Mr. JUSTICE MILLS

delivered the opinion of the court:

We here compare “good time” for felons with “good behavior allowance” for misdemeanants.

Specifically, does the constitution permit a felon sentenced to one year to be released before a misdemeanant sentenced to only 6 months?

Yes.

We affirm.

Burton was convicted of reckless conduct (a Class A misdemeanor) and sentenced to 6 months at the Vandalia Correctional Center. While incarcerated, Burton will be subject to the Misdemeanant Good Behavior Allowance Act (Ill. Rev. Stat. 1979, ch. 75, pars. 30-34), which provides that misdemeanants are entitled to a cumulative “good behavior allowance.” However, the Act will not permit Burton to accumulate the equivalent of the day-for-day good time credit available to felons under section 3 — 6—3(a)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1003 — 6—3(a)(2)). Even if Burton accumulates all possible good time credits during his six-month sentence, it is still possible for a felon serving a one-year sentence to be released earlier than Burton. (A felon can receive up to 90 days’ good-time credit for “meritorious service” in addition to his day-for-day good time credits. Ill. Rev. Stat. 1979, ch. 38, par. 1003-6 — 3(a)(3).)

Burton contends that such a good time credit scheme violates his constitutional rights to due process and equal protection under the Federal and State constitutions.

I

When determining whether a statute violates due process, a court must determine “whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare.” (Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 159, 128 N.E.2d 691, 695.) Burton argues that the good time provision for misdemeanants is not reasonably designed to fulfill the purposes of the Unified Code of Corrections, which are set forth in section 1 — 1—2 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 1001 — 1—2):

“(a) prescribe sanctions proportionate to the seriousness of the offenses and permit the recognition of differences in rehabilitation possibilities among individual offenders;
(b) forbid and prevent the commission of offenses;
(c) prevent arbitrary or oppressive treatment of persons adjudicated offenders or delinquents; and
(d) restore offenders to useful citizenship.”

Defendant contends that a scheme which can cause a misdemeanant to be incarcerated longer than a felon and offers misdemeanants less incentive for good conduct is not “reasonably designed to remedy the evils” to which it is directed — i.e., (1) the sanctions end up not being proportionate to the seriousness of the offense; (2) it does not prevent arbitrary and oppressive treatment of misdemeanants; and (3) it does not encourage misdemeanants to become useful citizens.

Burton’s position as to due process, however, has two fundamental weaknesses. First, the Misdemeanant Good Behavior Allowance Act is not a part of the Unified Code of Corrections, having been enacted several years before the Code. Thus, the purposes set forth in the Code have no application to the Act. The purpose of the Act would seem to be to provide a system for rewarding misdemeanants in order to promote prison discipline, and it certainly accomplishes that goal.

Second, even assuming that the purposes set forth in section 1 — 1—2 of the Code were applicable to the Act, the Act is reasonably designed to accomplish some of these purposes. The Act recognizes the differences in rehabilitative possibilities among various offenders. Misdemeanants have committed offenses which society regards as less serious than those committed by felons. As such, felons are in greater need of rehabilitation and need a greater incentive, in the form of good time credits, to get them to conform their behavior to what society will accept. In addition, the Act works toward restoring offenders to useful citizenship. It encourages misdemeanants to behave properly while incarcerated and thus develop behavior habits that will continue after their imprisonment. Section 1 — 1—2 states various purposes — rehabilitation, deference, punishment— which are not necessarily consistent. Thus, one particular provision cannot hope to accomplish all these goals. The Act is quite reasonably designed to fulfill some of the purposes of the Code and therefore withstands Burton’s due process attack. The fact that day-for-day credit would perhaps be even more effective in achieving the purposes of section 1 — 1—2 does not make the Act invalid; the due process clause requires only that a statute be reasonably designed to accomplish its purposes, not that it be the best means of accomplishing them. (Bell v. Wolfish (1979), 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861.) Burton’s due process arguments are without merit.

II

The threshold question in any equal protection discussion is whether similarly situated people are being treated dissimilarly. The court in People v. Bradley (1980), 79 Ill. 2d 410, 416, 403 N.E.2d 1029, 1031, said:

“The equal protection clause does not deny States the power to treat different classes of persons in different ways. [Citations.] Only ‘[w]hen the law lays an unequal hand on those who have committed intrinsically the same quality of offense and [penalizes] one and not the other’ does the equal protection clause come into play. [Citations.] That clause requires equality between groups of persons ‘similarly situated’; it does not require equality or proportionality of penalities for dissimilar conduct. [Citations.]”

Burton assumes that misdemeanants and felons are similarly situated and that the disparity between their good time credit schemes thus violates the equal protection clause.

It is true that these two groups are similarly situated in that they can be housed in the same facility and are subject to the same rules and conditions. But the similarity ends there. Most fundamentally, felons and misdemeanants differ in that felons have committed offenses which society regards as more serious than those committed by misdemeanants. Every felon, therefore, is sentenced to a longer period of incarceration than is any misdemeanant. (Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 8—1 and 1005 — 8—3.) The fact that felons have committed more serious offenses than misdemeanants is also reflected in the fact that felons — but not misdemeanants — become ineligible to hold public office. (Ill. Const. 1970, art. XIII, §1.) Furthermore, even though he is released early due to the accumulation of good time credits, a felon can be reincarcerated for an act which would constitute a violation of parole. (Ill. Rev. Stat. 1979, ch. 38, par. 1003 — 3—9(a)(3)(i)(B).) A misdemeanant’s early release, however, is unconditional.

It is unquestionable, then, that felons are a group qualitatively distinct from misdemeanants in that they have done acts which society regards as more serious infractions. The legislature, therefore, was free to do what it did — i.e., provide different treatment for the two groups. The cases relied upon by Burton, United States ex rel. Sero v. Preiser (2d Cir. 1974), 506 F.2d 1115, cert, denied (1975), 421 U.S. 921,43 L. Ed. 2d 789,95 S. Ct. 1587, and Bolling v. Manson (D. Conn. 1972), 345 F. Supp. 48, are inapposite, for they deal with good time credit schemes giving disparate treatment to criminals who have committed the same offense. Rather, the relevant cases are those which hold that a legislature may apply different good time credit rules to criminals depending upon the offenses they have committed. Jeffery v. Malcolm (S.D.N.Y. 1973), 353 F. Supp. 395; Sutton v. Garmon (1980), 245 Ga. 685, 266 S.E.2d 497; Jones v. Jenkins (1978), 276 Ind. 619, 372 N.E.2d 1163; Amado v. Superintendent, Massachusetts Correctional Institution at Walpole (1974), 366 Mass. 45, 314 N.E.2d 432. See also Trivento v. Commissioner of Corrections (1977), 135 Vt. 475, 380 A. 2d 69.

Under our analysis, then, Burton has failed to clear the first hurdle in his equal protection attack: he has not shown that similarly situated individuals are being treated differently. But even were we to proceed to the next step, we would find that the different good time credit rules between felons and misdemeanants “rationally furthers some legitimate, articulated state purpose.” (McGinnis v. Royster (1973), 410 U.S. 263, 270, 35 L. Ed. 2d 282, 289, 93 S. Ct. 1055,1059.) Good time credit programs are enacted in order to promote prison discipline. (Watson v. Industrial Com. (1966), 100 Ariz. 327, 414 P.2d 144; Amado v. Superintendent; Post v. Ruth (Miss. 1978), 354 So. 2d 1111; Woodring v. Whyte (W.Va. 1978), 242 S.E.2d 238.) Since felons have been proven guilty of more serious offenses than have misdemeanants, it was quite reasonable for the legislature to think that felons need greater incentives than do misdemeanants to conform their behavior to prison rules. Jeffery v. Malcolm.

Ill

Burton has also argued that the prosecutor abused his discretion in filing a charge of reckless conduct. The evidence showed that Burton began overtaking another car on Route 105. As he got even with the other car, he turned his steering wheel sharply to the right so that the two vehicles almost collided. He repeated this antic two or three times. For this conduct, Burton was charged under section 12 — 5(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 5(a)):

“(a) A person who causes bodily harm to or endangers the bodily safety of an individual by any means, commits reckless conduct if he performs recklessly the acts which cause the harm or endanger safety, whether they otherwise are lawful or unlawful.”

The Committee Comments to section 12 — 5 state that it “is aimed primarily at the reckless homicide type of conduct where no homicide results ” " (Emphasis added.) (Ill. Ann. Stat., ch. 38, par. 12 — 5, Committee Comments, at 573 (Smith-Hurd 1979).) That language, however, does not limit applicability of the statute to such conduct. (People v. Swanson (1980), 84 Ill. App. 3d 245, 405 N.E.2d 483.) Burton’s acts obviously endangered the bodily safety of the individuals in the other car so that his conduct fell within the coverage of section 12 — 5(a). The prosecutor, invested with broad discretion in determining what charges to file (People v. Ruiz (1979), 78 Ill. App. 3d 326, 396 N.E.2d 1314; People v. Golz (1977), 53 Ill. App. 3d 654, 368 N.E.2d 1069, cert. denied (1978), 437 U.S. 905, 57 L. Ed. 2d 1134, 98 S. Ct. 3091), acted properly.

Affirmed.

GREEN and LONDRIGAN, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE JOHNSON

license: Public Domain

text:
    THE BOARD OF EDUCATION, COMMUNITY CONSOLIDATED SCHOOL DISTRICT 62, COOK COUNTY, Plaintiff-Appellant, v. THE ILLINOIS EDUCATION ASSOCIATION et al., Defendants-Appellees.
    First District (4th Division)
    No. 79-1999
    Opinion filed April 9, 1981.
    —
    Rehearing denied November 7, 1981.
    Brydges, Riseborough, Morris, Franke & Miller, of Chicago (Ralph Miller, of counsel), for appellant.
    Katz, Friedman, Schur & Eagle, of Chicago, for appellees.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

This action was brought by plaintiff, the Board of Education, Community Consolidated School District 62, Cook County, Illinois (hereinafter the Board), to stay arbitration proceedings. A counterclaim to compel arbitration was filed by defendants, Des Plaines Education Association (hereinafter Des Plaines), a teachers’ union, and its affiliate, Illinois Education Association. James Chiakulas and Robert Phillips were named as individuals and officials of the unions. The trial court issued its order, after consideration of the parties’ motions and briefs, granting the motion to compel arbitration. This appeal flows from that order.

We affirm.

The dispute in this case arises from the act of the principal of Iroquois Junior High School of School District 62. A program of detention hall duty for teachers was instituted at the school for the 1978-79 school year. Prior to that school term, no teacher at the school had been assigned to detention hall duties without compensation over and above base salary. Although the Board operated two other junior high schools in the district, both of the other schools had policies of assigning teachers to detention hall duty for additional pay.

The detention hall duty assignments were rotated among the teachers in the building. The rotation resulted in each teacher being assigned for approximately four mornings per school year at no more than one-half hour per morning, or a maximum of 2 hours per school year.

Plaintiff and Des Plaines entered into a collective bargaining agreement on August 21, 1977. Des Plaines presented a grievance under its contract provisions. The issue was compensability for detention hall duty. Defendants argue that the collective bargaining agreement provides for a detention hall co-ordinator which commands additional salary of five units or $675. That position, they argue, may be equated with the duty of supervising a detention hall for one-half hour per morning for 2 hours per school year. The detention co-ordinator is assigned on a yearly basis and involved 100 to 150 hours per year.

Plaintiff Board denied the grievance, asserting there was no language in the collective bargaining agreement which would prohibit the principal of a school from assigning a teacher to any particular normal duty not mentioned in the contract. Defendants argue that so long as a teacher presents a grievance the matter must be submitted to arbitration.

The sole issue for our determination is whether the. trial court properly granted the motion to compel arbitration.

Section 2 of the Uniform Arbitration Act (Ill. Rev. Stat. 1977, ch. 10, par. 102) provides, in part:

“(a) On application of a party showing an agreement * * * and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, * * °.
O O »
(e) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.”

The professional grievance procedure in the agreement between plaintiff and Des Plaines provides, in its definitions paragraph, that:

“Any claim by a teacher or thé Association that there has been a violation, misrepresentation, or misapplication of the terms of this agreement shall be a grievance.” (Emphasis added.)

We adhere to the rule we set forth in Board of Education v. Johnson (1974), 21 Ill. App. 3d 482, 492, 315 N.E.2d 634, 642. In that case, we held:

“[T]he decision of whether a dispute is arbitrable (i.e., minor in nature) should be left to the respective parties and the arbitrator (s). By so providing, we would allow a third party to make the initial decision of arbitrability in disputes arising out of and in the contemplation of the collective bargaining agreement.”

Thus, the Arbitration Act should apply to all grievances, even so-called minor disputes, absent an express exclusion contained in an agreement of the parties.

In Board of Trustees v. Cook County College Teachers Union, Local 1600, AFT, AFL/CIO (1979), 74 Ill. 2d 412, 421, 386 N.E.2d 47, 51, we clearly determined that the question of interpretation of the collective bargaining agreement is a question for the arbitrator and it is the arbitrator’s interpretation or construction of the contract that has been bargained for by the parties. Where there is an agreement, the responsibility for determining the significance of a grievance is placed firmly with the arbitrator unless otherwise dictated.

Plaintiff’s point of view is that there was no express agreement to arbitrate the issue of the additional duty with no extra pay. In support of this position, it cites Croom v. City of De Kalb (1979), 71 Ill. App. 3d 370, 389 N.E.2d 647. However, Croom does not support plaintiff’s position. In Croom, the contract contained a clause which specifically limited arbitration to those grievances which involved an interpretation or application of express provisions in the collective bargaining agreement. The trial court found that the issue raised was not one upon which the parties had agreed to arbitrate. In reaching a decision, this court unequivocally stated:

“[W]e reject the suggestion of the defendant that we base our decision on the standard that for an issue to be arbitrable it must be ‘stated in the contract in crystal clear language unextended and unenlarged either by construction or by implication.’ ” Croom, 71 Ill. App. 3d 370, 375, 389 N.E.2d 647, 651.

We find no limiting clause in the agreement in this case. We believe the trial court was correct in issuing its order to compel arbitration.

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

Affirmed.

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


author: Mr. JUSTICE WHITE

text:
    MARK H. MENNES, Adm’r of the Estate of Asuncion Villoso, Deceased, et al., Plaintiffs-Appellees, v. SOUTH CHICAGO COMMUNITY HOSPITAL, Defendant-Appellant.
    First District (3rd Division)
    No. 80-598
    Opinion filed June 24, 1981.
    Rehearing denied August 7, 1981.
    Lord, Rissell & Brook, of Chicago (Judy P. Perlman, Harvey R. Speigel, Harold L. Jacobson, and Hugh C. Griffin, of counsel), for appellant.
    Goldberg & Goldberg, of Chicago (Michael J. Radtke, of counsel), for appellees.
   Mr. JUSTICE WHITE

delivered the opinion of the court:

On March 15,1977, Mark H. Mennes, the administrator of the estates of Asuncion Villoso and of Unnamed Viable Fetus Villoso, and Simon P. Villoso brought this wrongful death action against South Chicago Community Hospital and two of its staff doctors, alleging that the deaths of Asuncion Villoso and her unborn child were caused by the negligence of the hospital and its doctors. The hospital was charged, among other things, with failing to check adequately the qualifications of Dr. Mangoor Shah and Dr. John Harrod to whom it extended privileges, failing to review adequately the qualifications and the work of staff physicians, and employing unskilled personnel in its emergency room. On February 6, 1978, defendant hospital was served with requests to produce certain specified information including “[a]ll material regarding the granting of privileges regarding all Defendant doctors.”

In response to these requests the hospital filed objections asserting that the requested materials were privileged. After a hearing on the objections, the trial court, on November 20, 1979, ordered the hospital to comply with plaintiffs’ request for discovery. The hospital refused, standing on its claim of statutory privilege. Thereupon, the trial court found the executive officer of defendant hospital in contempt, and imposed a sanction. On appeal, the hospital challenges the validity of that contempt order.

Plaintiffs’ position is that the material sought by their discovery request is not confidential and that the only information made confidential by section 1 of the medical studies act (Ill. Rev. Stat. 1961, ch. 51, par. 101 et seq.) is “that material used in the course of medical study for the purpose of reducing morbidity or mortality * * Section 1 of this statute, enacted in 1961, has been amended from time to time, expanding the list of medical units and institutions whose information, reports, memoranda, interviews, statements and other data were given confidential status. Amendments in 1976 and 1977 also extended confidentiality to additional material described as that which is “used in the course of internal quality control” or “for improving patient care.” (Ill. Rev. Stat. 1977, ch. 51, par. 101.) These amendments also spelled out with more particularity the purposes for which the confidential material could be used. The section as amended, in February 1978 when the requests to produce were served on defendant hospital, read as follows:

“All information, interviews, reports, statements, memoranda or other data of the Illinois Department of Public Health, Illinois State Medical Society, allied medical societies, or committees or accredited hospitals, including Patient Care Audit Committees, Medical Care Evaluation Committees, Utilization Review Committees, Credential Committees and Executive Committees, but not the original medical records pertaining to the patient, used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care, shall be strictly confidential and shall be used only for medical research, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges, except that the claim of confidentiality shall not be invoked to deny a physician access to or use of data upon which a decision regarding his staff privileges was based.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 51, par. 101.

We previously examined this Act in Matviuw v. Johnson (1979), 70 Ill. App. 3d 481, 388 N.E.2d 795, and interpreted section 1 as providing that “[a]ll information, interviews, reports, statements, memoranda or other data of medical executive committees shall be strictly confidential and used only for the purposes enumerated therein.” In refusing to adopt a narrower construction of this grant of confidentiality, we said:

“[T]hrough the Medical Studies Act, the legislature intended to bolster the effectiveness of in-hospital peer group review committees. To this end, the Act provided for a general policy of confidentiality for information obtained by such committees to insure that those providing the information could speak freely.” (70 Ill. App. 3d 481, 486.)

No persuasive argument has been submitted here that would compel us to reject the philosophy of Matviuw and adopt a narrow interpretation of the statute as suggested by plaintiffs. We agree with defendant hospital’s contention that if all staff appointment material could be obtained and used against the hospital whenever a plaintiff urged a negligent staff appointment theory, the statutory goal of candid commentary would be compromised. Thus we cannot support the trial court’s finding that hospital material regarding the granting and extension of staff privileges is discoverable under the Act. We hold the material was confidential.

Courts of other jurisdictions, when faced with this question, have reached a similar conclusion. The issue was addressed by the California Court of Appeals in Matchett v. Supreme Court (1974), 40 Cal. App. 3d 623, 115 Cal. Rptr. 317. As in the instant case, plaintiff in Matchett sought pretrial discovery of hospital and staff records pertaining to the selection and retention of certain doctors. The court was there called upon to construe a statute which provided in part that “records of a medical staff committee are immune from discovery when the committee has ‘the responsibility of evaluation and improvement of the quality of care rendered in the hospital ° 0 V ” (40 Cal. App. 623, 627, 115 Cal. Rptr. 317, 319.) The California court found that records of the hospital credentials committee which screened applicants for staff privileges were immune from discovery. The court stated, “When medical staff committees bear delegated responsibility for the competence of staff practitioners, the quality of in-hospital medical care depends heavily upon the committee members’ frankness in evaluating their associates’ medical skills and their objectivity in regulating staff privileges.” 40 Cal. App. 3d 623, 628, 115 Cal. Rptr. 317, 320.

The holding of the California court in Matchett appears to parallel the decision which this court made in Matviuw. Both cases make clear that, under the respective statutes, hospital documents relating to staff privileges are confidential.

It is noteworthy that even in the absence of a confidentiality statute courts have found minutes and reports of hospital committees privileged. In a leading case in this area, Bredice v. Doctors Hospital, Inc. (D.D.C. 1970), 50 F.R.D. 249, 250, affd (D.C. Cir. 1973), 479 F.2d 920, the court stated the rationale behind affording confidentiality to such proceedings:

“Candid and conscientious evaluation of clinical practices is a sine qua non of adequate hospital care. To subject these discussions and deliberations to the discovery process, without a showing of exceptional necessity, would result in terminating such deliberations. Constructive professional criticism cannot occur in an atmosphere of apprehension that one doctor’s suggestion will be used as a denunciation of a colleague’s conduct in a malpractice suit.”

We will not subject hospital staff review committees to the ever impending threat of public or judicial scrutiny under the auspices of the discovery process. For us to rule otherwise would gravely hamper the effectiveness of such committees as well as defeat the legislative intent in this area.

Another of plaintiffs’ points on appeal is that section 1 of the medical studies act as it appears in the 1979 Illinois Revised Statutes should not be given retroactive effect in this lawsuit. We find this argument without merit. Plaintiffs urge that the appropriate statute for review is the original draft enacted in 1961 (Ill. Rev. Stat. 1961, ch. 51, par. 101), which does not include the words “granting, limiting or revoking staff privileges.” We have examined the statute and its various amendments up to this date and find that the statute was amended in 1976 to include this language. As such, the language was in effect at the time this lawsuit was filed in 1977 and also when the production requests were served in 1978.

Plaintiffs also contend that the hospital should not be permitted to assert a statutory confidentiality privilege without articulating how the statute was applicable or identifying the documents which fell within the scope of the production requests and obtaining a court ruling as to their confidential status. The trial court held a hearing on defendant’s objection to plaintiffs’ production requests. An evidentiary hearing or in camera inspection was unnecessary as the wording of the request to produce itself sufficiently established that the material sought was protected by the statutory privilege. Plaintiffs were seeking data relating to the granting of staff privileges to defendant doctors. This was clearly information used in the course of internal quality control, made confidential by section 1. The last clause of section 1 emphasizes the correctness of this reading of the statute by providing that this “confidentiality shall not be invoked to deny a physician access to data upon which a decision regarding his staff privileges was based.” We have examined the case of Walker v. Alton Memorial Hospital Association (1980), 91 Ill. App. 3d 310, 414 N.E.2d 850, and find it distinguishable from the case at bar. Plaintiff in Walker requested information regarding hearings or meetings relative to a certain patient. In that case an in camera inspection by the trial court may have been necessary to determine whether or not the material sought was confidential. The defendant hospital association rather than submitting to such inspection stood on its claim of confidentiality and refused to supply the requested information. The trial court held this contumacious, and the appellate court affirmed.

The material sought in plaintiff’s production requests relating to the granting of physician’s privileges and their reappointment is confidential. The order of the circuit court compelling defendant hospital to comply with said requests and the contempt order imposing sanctions for failure to do so should be reversed.

For the foregoing reasons, the judgment of the circuit court is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed.

RIZZI, P. J., and McNAMARA, J., concur.


author: Mr. JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD ROSS, Defendant-Appellant.
    First District (1st Division)
    No. 79-2048
    Opinion filed August 24,1981.
    Rehearing denied September 21,1981.

      John T. Theis, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Joan S. Cherry, and Gino P. Naughton, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE O’CONNOR

delivered the opinion of the court:

After a jury trial, defendant Ronald Ross was convicted of murder, attempt murder, aggravated battery and armed violence. The trial court granted defendant’s motion in arrest of judgment as to the murder verdict, entered no judgment on the attempt murder and aggravated battery verdicts and entered judgment on the verdict of armed violence based upon aggravated battery. Defendant was sentenced to six years imprisonment. Defendant appeals, contending that (1) his conviction for armed violence based on aggravated battery must be reversed because the underlying felony of aggravated battery was enhanced to a felony because defendant was armed with a dangerous weapon and the fact that defendant was armed with a dangerous weapon was also used to raise aggravated battery, a Class 3 felony, to armed violence, a Class X felony; (2) the armed violence count of the indictment is insufficient as a matter of law; and (3) he was not proved guilty beyond a reasonable doubt.

Defendant lived with his wife, Patricia, in an apartment building at 8116 South Essex, in Chicago, Illinois. Defendant, his mother, his brother and his aunt owned the building. On September 11, 1978, defendant was in his apartment with his wife and his aunt, Margaret Randolph. Between 10 and 11 p.m., Theophilus Johnson, Archie Pritchett, Henry Johnson and Sheree Wright arrived at the building. Pritchett and the two Johnsons are brothers; Wright is Henry Johnson’s girlfriend. Earlier in the day Pritchett had moved some furniture and clothing in the apartment of Elaine Castile, a tenant in the building. Pritchett had previously been a tenant in the building and had been asked to move. Pritchett testified that he went to defendant’s apartment only to explain that he was not moving into the building and he was going to remove his possessions from Castile’s apartment.

Defendant answered the door and invited the group in. When they entered the living room, defendant, his wife and his aunt were already present. Defendant told the group to have a seat. Everyone sat down except Theophilus Johnson, who remained standing until defendant told him to sit down. Defendant’s wife and aunt were drinking and appeared to be intoxicated.

The testimony of Pritchett, Theophilus Johnson and Wright regarding the incident was substantially the same: Defendant’s aunt, Randolph, started an argument with Pritchett in which she accused him of tearing up her apartment. She began yelling loudly, and Pritchett had to raise his voice in order to respond. During this argument defendant went back and forth several times from the living room to the back bedroom where he was drinking beer and watching television. On one of the trips from the back room, defendant let several large dogs into the apartment. The dogs came into the living room and sniffed around. Theophilus Johnson was afraid of the dogs, so he went over to the door to leave. Defendant’s wife got up and told Theophilus Johnson, “I will get it for you, babe.” The key was in the lock and Theophilus Johnson had unlocked the door and opened it about half way, when defendant’s wife pushed him against the wall and slammed the door. As she did that, she yelled “Don’t open my Goddamn door.” Theophilus Johnson never struck or touched defendant’s wife. He did not have any type of weapon and did not reach for his pockets.

When Theophilus Johnson turned around, defendant was coming toward him down the hallway from the back bedroom. Defendant had a rifle in his hands and struck Theophilus Johnson in the right cheek with the butt of the rifle. This knocked Johnson back and defendant pointed the gun at Johnson’s stomach and shot him. The bullet passed through Johnson’s body and struck and killed defendant’s wife.

Defendant’s aunt testified that she and Pritchett began arguing as soon as the group arrived. She stated that no one else entered into the argument. Defendant came from the back bedroom and told Pritchett to quiet down or leave, but the argument continued. Defendant returned to the back bedroom. Randolph stated that at no time were the dogs let into the living room while the group was there. She further testified that when defendant’s wife got up to open the door for Theophilus Johnson, Johnson grabbed her and started to struggle with her. Defendant’s wife then began screaming for defendant to help her. She stated that she heard a loud noise when Theophilus Johnson was pushing defendant’s wife with his hand. Then Johnson and defendant’s wife both fell down.

Defendant testified that he was in the back room watching football that night. He remained back there and became aware that guests had arrived only after he heard them arguing. He came out and told them to keep down the noise because he could not hear the television. Defendant testified that from the bedroom he heard his wife screaming and calling him. Defendant said he grabbed his mother’s rifle and ran down the hall. As defendant approached, defendant saw Johnson push defendant’s wife away from him and reach toward his pocket. “As he reached,” defendant explained, “I fired.” No other weapon was found in the apartment. Defendant denied striking Johnson with the butt of the gun.

Defendant first contends that his conviction for armed violence based on aggravated battery must be reversed for the reasons that (a) the underlying felony of aggravated battery was enhanced to a felony because defendant was armed with a dangerous weapon and (b) the fact that defendant was armed with a dangerous weapon was also used to raise aggravated battery, a Class 3 felony, to armed violence, a Class X felony.

Defendant was indicted for three counts of murder, one count of attempt murder, one count of aggravated battery (great bodily harm), one count of aggravated battery (deadly weapon), one count of armed violence based upon the underlying felony of murder and one count of armed violence based upon the underlying felony of aggravated battery. The count for armed violence based upon the underlying felony of aggravated battery did not indicate whether the battery was aggravated because of the infliction of “great bodily harm” or because of the use of a “deadly weapon.” The jury found defendant guilty of murder, attempt murder, aggravated battery (great bodily harm), aggravated battery (deadly weapon) and armed violence. Judgment was entered only on the armed violence count. The verdict for armed violence did not indicate the felony upon which it was based. The jury was not instructed as to the armed violence count based upon the underlying felony of murder and a nolle prosse order was entered as to that count on the State’s motion at the time of sentencing. Therefore, the verdict for armed violence was based upon the underlying felony of aggravated battery. We note that the armed violence verdict did not indicate whether the underlying felony of aggravated battery was based on the theory that defendant had used a deadly weapon or on the theory that defendant caused great bodily harm.

In People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, our supreme court found that the armed violence statute could not be applied to a charge of aggravated battery where the battery was enhanced because of the use of a deadly weapon. However, defendant here is not entitled to reversal of his conviction. The jury found defendant guilty of aggravated battery (deadly weapon) and aggravated battery (great bodily harm). Because the jury’s armed violence verdict does not indicate which theory of aggravated battery constitutes the underlying felony for that verdict, it is presumed that the verdict is based upon any of the counts to which proof is applicable. (See People v. Mimms (1976), 40 Ill. App. 3d 942, 353 N.E.2d 186.) The proof here shows the infliction of great bodily harm. Therefore, the armed violence verdict could properly be based on the underlying felony of aggravated battery (great bodily harm), and we will not reverse defendant’s conviction for armed violence.

Defendant’s second contention is that the armed violence count of the indictment is insufficient as a matter of law.

Initially, we note that defendant failed to raise this issue either in a pretrial motion to dismiss the charge (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1(a) (8)) or in a post-trial motion in arrest of judgment (Ill. Rev. Stat. 1979, ch. 38, par. 116 — 2(b)(1)). An indictment attacked for the first time on appeal is to be reviewed under a different standard than if challenged either in a pretrial or post-trial motion. (People v. Pujoue (1975), 61 Ill. 2d 335, 335 N.E.2d 437.) “When attacked for the first time on appeal an information or indictment 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. Gilmore (1976), 63 Ill. 2d 23, 29, 344 N.E.2d 456.

The armed violence count charged that defendant “committed the offense of armed violence in that he, while armed with a dangerous weapon, to wit: a handgun committed a felony defined by Illinois law, to wit: aggravated battery.” Defendant argues that this count was insufficient as a matter of law because the elements of the offense of aggravated battery were not set forth in the count.

The elements of armed violence are two fold: (1) commission of a felony (2) while armed with a dangerous weapon. (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2.) The fact that elements of the crime of aggravated battery were not set forth in detail in the armed violence count did not render the indictment insufficient. It is not necessary that the elements of a “felony” be defined in an indictment charging armed violence. Even if it were necessary, the elements of aggravated battery (great bodily harm) were set forth in another count of the indictment. See People v. Bauer (1969), 111 Ill. App. 2d 211, 249 N.E.2d 859, cert. denied (1970), 397 U.S. 1022, 25 L. Ed. 2d 531, 90 S. Ct. 1260.

We find that the armed violence count of the indictment apprised defendant 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.

Defendant’s final contention is that he was not proved guilty of armed violence beyond a reasonable doubt, arguing that his use of force was justified because of (a) the alleged unlawful entry of the victim and his brothers into defendant’s dwelling in a violent, riotous or tumultuous manner, and (b) his reasonable belief that such force was necessary to prevent imminent death or great bodily harm. We disagree.

There was no violent, riotous or tumultuous unlawful entry into or attack upon defendant’s dwelling. (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 2(a).) Theophilus Johnson and the others had been invited into the apartment. Defendant’s use of force was not justified on that basis.

Once the affirmative defense of self-defense or defense of another is raised by defendant, it becomes the State’s burden to prove beyond a reasonable doubt not only all the elements of the offense, but also that defendant’s act was not in self-defense or in defense of another. (People v. Seiber (1979), 76 Ill. App. 3d 9, 394 N.E.2d 1044; People v. Baker (1975), 31 Ill. App. 3d 51, 334 N.E.2d 249.) The elements of the defense are:

° ° (1) that force is threatened against a person; (2) that the person threatened is not the aggressor; (3) that the danger of harm is imminent; (4) that the force threatened is unlawful; (5) that the person threatened must actually believe: (a) that a danger exists, (b) that the use of force is necessary to avert the danger, (c) that the kind and amount of force which he uses is necessary; and (6) that the above beliefs are reasonable. There is a further principle involved, when, as in the instant case, the defendant uses deadly force. This principle limits the use of deadly force to those situations in which (a) the threatened force will cause death or great bodily harm or (b) the force threatened is a forcible felony.” (People v. Williams (1965), 56 Ill. App. 2d 159, 165-66, 205 N.E.2d 749.)

When, in the judgment of the jury, any of the evidence produced at trial negates the existence of any one of these elements beyond a reasonable doubt, the State has carried its burden. People v. Seiber.

The evidence here showed that defendant’s wife initiated the incident. The State’s witnesses testified that Theophilus Johnson never struck or touched defendant’s wife and that Johnson did not reach for his pockets. Defendant testified that when he arrived in the living room he saw Johnson struggling with defendant’s wife, that Johnson reached toward his pocket and that he then fired one shot aimed at Johnson.

The jury was not required to accept defendant’s version of the incident. (People v. Seiber.) In addition, the reasonableness of an individual’s belief that it was necessary to use deadly force to prevent death or great bodily harm is a question of fact, the determination of which will not be disturbed upon review unless the evidence is so unsatisfactory as to justify a reasonable doubt as to guilt. People v. Hill (1977), 53 Ill. App. 3d 280, 368 N.E.2d 714.

We do not find that the evidence was so unsatisfactory as to justify a reasonable doubt as to defendant’s guilt.

The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

CAMPBELL, P. J., and McGLOON, J., concur.


author: Mr. JUSTICE WILSON

text:
    EDWARD M. MEYER, Plaintiff-Appellant, v. WILLIAM M. LOGUE et al., Defendants-Appellees.
    First District (5th Division)
    No. 80-1609
    Opinion filed September 25, 1981.
    Rehearing denied November 6, 1981.

      George B. Collins and Paula M. Uscian, both of Collins & Amos, of Chicago, for appellant.
    John R. Fielding, of Chicago, for appellees.
   Mr. JUSTICE WILSON

delivered the opinion of the court:

Plaintiff Edward Meyer brought this action to enforce an oral contract involving the sale of securities. The trial court granted defendants’ motion for summary judgment, holding that the alleged agreement was unenforceable under the relevant Statute of Frauds. (Ill. Rev. Stat. 1979, ch. 26, par. 8 — 319.) On appeal, plaintiff contends that the trial court erred in granting summary judgment because he raised these genuine issues of material fact: (1) whether the parties entered a valid oral contract and (2) whether plaintiff’s alleged performance of this contract removes the Statute of Frauds barrier. We reverse and remand.

The following information is derived from the pleadings and plaintiff’s deposition.

In August of 1973, plaintiff owned 20 percent of the outstanding stock in both the Brock Tool Company and Brock Equipment Company. The Brockschmidt family owned the balance of stock in each corporation. At that time, the total worth of Brock Tool was approximately $900,000. Plaintiff had worked for both companies for many years and when the Brockschmidts decided to sell their 80 percent interest in Brock Tool, they gave plaintiff a veto power over any potential purchasers of their interest. This was important to plaintiff because he wished to remain with the company as its chief executive officer.

Initially, the Brockschmidts and plaintiff negotiated with a party other than defendants. Based on the $900,000 valuation of the corporation, the Brockschmidts were to receive $720,000 for their 80 percent interest in the company. During this time, however, defendant Logue learned of the negotiations and expressed interest in buying the company. Plaintiff told the Brockschmidts that he would prefer dealing with Logue rather than the prior party because Logue assured plaintiff he would be expected to stay on and run the company. Logue and the other defendants planned to borrow money to purchase the Brockschmidts’ interest. To facilitate the transaction, plaintiff agreed to subordinate his interest in Brock Tool through a reorganization of the company’s stock structure. This would allow defendants to purchase the controlling interest in the company for a nominal amount and pay the Brockschmidts with the bank loan, which was secured by the assets of the corporation. In return, defendants agreed to purchase plaintiff’s interest in Brock Tool at the same rate as they paid the Brockschmidts.

According to plaintiff, the negotiations between defendants, the Brockschmidts and plaintiff culminated in the following agreement: (1) plaintiff would sell his interest in Brock Equipment Company to the Brockschmidts for $5,000 and an additional 20 percent of Brock Tool stock, so he would acquire 40 percent of Brock Tool; (2) plaintiff would consent to Brock Tool borrowing $560,000, using its own assets as collateral, to purchase and retire the Brockschmidts’ interest in the company; (3) plaintiff would consent to a reorganization of Brock Tool stock into two shareholder classes, A and B. Plaintiff’s 40 percent interest in Brock Tool would be decreased from 10,000 to 100 shares of Class A. Ten thousand shares of Class B would be issued, with plaintiff paying $4,000 cash for 4,000 shares, and defendants paying $6,000 cash for 6,000 shares. This would give defendants control of the corporation. (4) Plaintiff would retain the right, on demand, to require defendants to purchase his Class A shares in Brock Tool. These shares represented his 40 percent interest in the corporation and defendants were to purchase them at the same basis paid to the Brockschmidts for their interest. This amounted to $360,000, to be paid to plaintiff in a manner favorable in its tax consequences.

This alleged agreement was never reduced to writing.. Defendants, however, assured the Brockschmidts when they concluded the sale that they had an “understanding” with plaintiff.

When the ownership of the Brockschmidts’ interest in Brock Tool had been transferred to defendants and the company had been reorganized, plaintiff met with defendant Hillsman, an accountant, to discuss the method of paying plaintiff for his Class A stock. Over a period of months, different methods of payment were considered, but Hillsman did not want to put anything in writing until he fully considered the options.

Plaintiff remained with Brock Tool Company as its president until April 7,1975, when he resigned.

On June 18, 1975, plaintiff filed a complaint to enforce his alleged right to be paid $360,000 under the agreement. Defendants’ answer denied the existence of any oral agreement. Defendants also filed a motion for summary judgment based on the Statute of Frauds (Ill. Rev. Stat. 1979, ch. 26, par. 8 — 319). In granting defendants’ motion, the trial court stated, in its written order:

“THE COURT FINDS that the following facts are undisputed:
1. That the Complaint in this cause is based upon an alleged contract for the sale of stock by Plaintiff to the several Defendants.
2. There is no written instrument evidencing the purported sale of said securities.
3. That the Defendants in their Answer and throughout discovery conducted by Plaintiff deny that any contract existed for the purchase by them of Plaintiff’s stock.

THE COURT FURTHER FINDS:

That the purported contract is not enforceable by way of action or defense pursuant to the provisions of the Uniform Commercial Code, Illinois Revised Statutes Chapter 26, Section 8 — 319. * *

Plaintiff appeals from this order.

Opinion

From the face of the order appears at least one disputed issue of fact: whether the parties entered into an oral agreement involving the sale of plaintiff’s stock. Plaintiff also raises the doctrine of complete performance, to take the alleged contract out of the Statute of Frauds. The ultimate fact issue, therefore, may be framed as whether the parties formed a contract under which plaintiff performed all his obligations and, by so doing, triggered defendants’ obligation to pay plaintiff $360,000. Since genuine issues of material fact defeat a motion for summary judgment (Ill. Rev. Stat. 1979, ch. 110, par. 57; McCann v. Bethesda Hospital (1980), 80 Ill. App. 3d 544, 400 N.E.2d 16), we must reverse the trial court’s order unless the Statute of Frauds bars enforcement of the purported contract as a matter of law.

Section 8 — 319 (Ill. Rev. Stat. 1979, ch. 26, par. 8 — 319) provides:

“A contract for the sale of securities is not enforceable by way of action or defense unless
(a) there is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price; or
(b) delivery of the security has been accepted or payment has been made but the contract is enforceable under this provision only to the extent of such delivery or payment; or
(c) within a reasonable time a writing in confirmation of the sale or purchase and sufficient against the sender under paragraph (a) has been received by the party against whom enforcement is sought and he has failed to send written objection to its contents within 10 days after its receipt; or
(d) the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract was made for sale of a stated quantity of described securities at a defined or stated price.”

We agree with defendants and the trial court that the facts of this case are not covered by the explicit language of the statute. If we narrowly construe the provision, therefore, we could affirm the trial court’s judgment without reaching the factual issues. We believe, however, that such a construction of section 8 — 319 would be unduly restrictive and inconsistent with pertinent case law.

In Illinois, oral contracts are not considered void (e.g., Gaffney v. McCarron (1977), 45 Ill. App. 3d 944, 360 N.E.2d 508), although they may be unenforceable if they are subject to a Statute of Frauds provision. The legislature has enacted such provisions for contracts that cannot be performed within a year (Ill. Rev. Stat. 1979, ch. 59, par. 1), contracts for the sale of an interest in land (Ill. Rev. Stat. 1979, ch. 59, par. 2), contracts for the sale of goods (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 201), and contracts for the sale of securities (Ill. Rev. Stat. 1979, ch. 26, par. 8 — 319). None of these statutes explicitly provide that full performance by one party operates to take the oral contract out of the Statute of Frauds; however, case law fully supports this result. See Mapes v. Kalva Corp. (1979), 68 Ill. App. 3d 362, 386 N.E.2d 148 (executed oral employment contract withstands Statute of Frauds defense, especially where all that remains to be done by the other party is payment of money); Thomas v. Moore (1977), 55 Ill. App. 3d 907, 370 N.E.2d 809 (oral contract for sale of real estate is removed from Statute of Frauds where purchaser pays full consideration, takes possession of the land or makes valuable improvements thereon); Lund v. E. D. Etnyre & Co. (1968), 103 Ill. App. 2d 158, 242 N.E.2d 611 (where one party has fully performed oral agreement, other party is estopped to rely on the Statute of Frauds, even though the oral contract violates the statute); Hills v. Hopp (1919), 287 Ill. 375, 122 N.E. 510 (oral contract for sale of corporate stock was enforceable because plaintiff performed all of his obligations in reliance on it).

The rationale of this unilateral full performance concept is sound; if one party, in reasonable reliance on the contract, performs all of his obligations and cannot be adequately compensated through restitutionary means, the other party should not be permitted to rely on the Statute of Frauds as a way to avoid his reciprocal obligations. (Barrett v. Geisinger (1893), 148 Ill. 98, 35 N.E. 354; see Brunette v. Vulcan Materials Co. (1970), 119 Ill. App. 2d 390, 256 N.E.2d 44.) Statutes of Frauds are designed to prevent false claims by requiring a writing to evidence the parties’ contractual intent. (See Ill. L. & Prac. Statute of Frauds §91 (1956).) When one party fully performs his part of the alleged oral contract, however, the courts recognize that this very performance strongly indicates the existence of a contract. (See 2 Corbin on Contracts §430 (1950); Brunette v. Vulcan Materials Co.) Such performance tends to minimize the dangers that the Statute of Frauds were designed to prevent. Conversely, where an alleged contract is purely executory, neither side having performed, application of the Statute of Frauds is justified by the attendant proof problems and the increased likelihood of perjury.

With these general principles in mind, we turn to the specific statute in question, section 8 — 319. We have found no Illinois cases directly on point. However, a case decided before the enactment of the current statute supports plaintiff’s position. In Hills v. Hopp (1919), 287 Ill. 375, 122 N.E. 510, the defendant president of a corporation offered stock to plaintiff and other shareholders, promising to repurchase the stock if they became dissatisfied with it. Plaintiff did become dissatisfied and subsequently sued defendant, who refused to repurchase the stock. The Illinois Supreme Court rejected defendant’s Statute of Frauds defense, holding that plaintiff had fully performed under the contract and, because it could be performed within a year, it was not barred by the Statute of Frauds.

In the pending case, plaintiff makes an argument similar to that approved in Hills. He alleges that, in reliance on defendants’ express oral agreement to pay him $360,000 for his interest in Brock Tool, he let his shares be substantially reduced, let a valuable business entity be encumbered by the loan, and allowed defendants to acquire a controlling interest in the company for a nominal sum. Defendants’ persistent refusal to pay him necessitated this lawsuit. While we express no opinion on the ultimate merits of plaintiff’s claims, we believe that the case law supports his position that the oral agreement, if performed as alleged, would not be barred by the Statute of Frauds.

Notwithstanding our conclusion, we must address one remaining question regarding the construction of section 8 — 319. During oral argument, defendants suggested for the first time that even if plaintiff’s allegations were true, his performance would be inadequate as a matter of law. This theory is premised on subsection (b) of the statute, which provides that a contract for the sale of securities is not enforceable unless “delivery of the security has been accepted or payment has been made, but the contract is enforceable under this provision only to the extent of such delivery or payment(Emphasis added.)

Without offering any supporting authorities or reasoning, defendants imply that because plaintiff failed to actually “deliver” his stock in Brock Tool and defendants refused to accept it, plaintiff’s performance did not come within subsection (b). Under this theory, the unilateral full performance doctrine would be precluded or superseded by the performance described in subsection (b).

The logic and fairness of this result is questionable. Indeed, we do not believe that subsection (b) applies to the circumstances of this case. For clarity of analysis, however, we will briefly explain why we reject defendants’ proposed construction of this provision.

Section 8 — 319 is part of the Uniform Commercial Code (UCC), as incorporated into chapter 26 of the Illinois Revised Statutes. Section 8 — 319 is closely patterned after the Statute of Frauds provision regarding contracts for the sale of goods. (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 201.) Under prior law, the Uniform Sales Act, the Statute of Frauds could not be avoided by a writing unless it contained every essential term of the contract. (Ill. Ann. Stat., ch. 26, par. 2 — 201, Illinois Code Comment, at 109 (Smith-Hurd 1963).) Section 2 — 201 of the UCC has greatly liberalized these requirements by allowing the writing to suffice as long as it indicates the parties’ contractual interest, states a quantity term, and is signed by the party against whom enforcement is sought. Moreover, section 2 — 201 permits enforcement of an oral sales contract if a confirming memorandum, sufficient against the sender, is sent to the party against whom enforcement is sought and that party fails to object in writing within 10 days after receiving the memo. (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 201(2); see par. 8 — 319(c).) Also sufficient to remove a sales contract from the Statute of Frauds is a defendant’s judicial admission that a contract was made for the sale of a stated quantity of goods at a stated price. (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 201(3)(b); see par. 8 — 319(d).) Finally, section 2 — 201(3)(c), which corresponds to subsection (b) of 8 — 319, acknowledges that the parties’ delivery and acceptance of goods can substitute for the required writing. This performance, however, only validates the contract for the goods actually accepted or for which payment has been made and accepted. (Ill. Ann. Stat., ch. 26, par. 2 — 201, Uniform Commercial Code Comment, at 114 (Smith-Hurd 1963).) Thus, receipt and acceptance of goods or payment is viewed as an “unambiguous overt admission” by both parties that a contract actually exists. In contrast to the former law under the Uniform Sales Act, however, such performance cannot validate the entire transaction, but only the executed portion. (Ill. Ann. Stat., ch. 26, par. 2 — 201, Illinois Code Comment, at 113 (Smith-Hurd 1963).) This is consistent with the fraud-preventing purpose of all Statutes of Frauds.

As this summary indicates, the UCC Statutes of Frauds proscribe only those transactions that are incapable of verification by a writing or other comparable substitute. Sections 2 — 201(3) (c) and 8 — 319(b), we believe, clearly reflect the common law concept that performance is evidence of a contract’s existence. We do not, however, agree with defendants that section 8 — 319, by addressing specific exceptions to the requirement of a writing, negates the well-established unilateral full performance doctrine previously discussed. As a judicially created concept that is not expressly embodied in any of the Statutes of Frauds, it is flexible enough to be extended to contracts for the sale of securities. Whether it is viewed as an exception to the Statute of Frauds or as an equitable remedy in the nature of an estoppel, the application of this doctrine is justified under the circumstances of this case. Indeed, the UCC expressly preserves all principles of “law and equity” that are not “displaced by the particular provisions of this Act * * (Ill. Rev. Stat. 1979, ch. 26, par. 1 — 103.) We conclude that allowing plaintiff to present evidence of his claim would not violate section 8 — 319.

We hold that plaintiff raised genuine issues of material fact regarding the existence and performance of the alleged contract. By disposing of the action through summary judgment, therefore, the trial court erred. Consequently we reverse the judgment and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.

SULLIVAN, P. J., and MEJDA, J., concur.

       According to plaintiff, the agreement was not put in writing because Brock Tool needed to borrow money from banks to retire the Brockschmidts’ stock. If the corporation had assumed the obligation to repurchase plaintiff’s shares, the bank loan would have been prevented because of this additional liability on the company’s balance sheet. Consequently, the agreement to repurchase plaintiff’s shares was made between plaintiff and the individual defendants.

       Our opinion is not intended to affect the normal broker-client relationships which involve the great volume of buy and sell orders executed over the telephone and subsequently confirmed in writing; all the protections afforded by section 8 — 319 remain intact.


author: Mr. JUSTICE GOLDBERG

text:
    NATIONAL TEA COMPANY, Plaintiff-Appellee, v. AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, Trustee, et al., Defendants-Appellants.
    First District (1st Division)
    No. 80-2837
    Opinion filed October 5, 1981.
    Rehearing denied November 9, 1981.

      Byron L. Gregory and Bruce H. Weitzman, both of Chicago (McDermott, Will & Emery, of counsel), for appellants.
    Eugene E. Gozdecki, of Chicago (Mayer, Brown & Platt, Bennett I. Berman, and Murray J. Lewison, of counsel), for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

The trial court granted National Tea Company (plaintiff) a summary judgment upholding its right of possession to leased premises. American National Bank and Trust Company of Chicago and Jerome R. Rosenberg (defendants) appeal.

On July 15, 1964, Nicholas P. Cholis leased 611 Dundee Road in Elgin, Illinois, to plaintiff. The term was from October 1, 1965, through September 30, 1980. The lease provided for an annual rent of $29,000 in monthly installments of $2416.67. The lease contained an automatic extension clause, after completion of the original term, for four periods of five years each, at the same terms and conditions as the original lease period. The plaintiff as lessee, however, had the privilege of cancelling the lease “at the end of the original term or at the end of any extended period upon Lessee’s giving to Lessor at least 180 days notice of such cancellation prior thereto 0 ° The lease further provided the plaintiff as lessee could sublet or assign all or any part of the premises but would remain liable for any payments not tendered by the sublessee or assignee.

On April 11, 1974, plaintiff sublet the entire premises to Value Rug Mart Inc. and Piper’s Carpeting Inc. These companies are owned and controlled by defendant Jerome R. Rosenberg. The sublease provided for a monthly rent of $2250 and for a stipulated percentage rental. The sublease commenced on May 1, 1974, and ran through September 29, 1980. Subsequently, defendant American National Bank and Trust Company of Chicago, as trustee, became the owner of record of the leased property and lessor in the original lease. Also, defendant Rosenberg became owner of the entire beneficial interest in the trust, including power of direction.

This sublease also provided:

“3. The Prime Lease grants to Sublessor upon certain conditions four (4) extensions or options of renewals for periods of five (5) years each after the expiration of the original term on September 30, 1980. The Tenant is not granted the privilege and is hereby denied the privilege or option of renewing or extending this Sublease under and as provided in the Prime Lease.”

On December 1,1977, plaintiff and Value Rug and Piper’s Carpeting (former sublessees) terminated their previous sublease and entered into an agreement referred to as an “assignment.” Plaintiff assigned to Value Rug and Piper’s Carpeting “all of Assignor’s [plaintiff’s] leasehold estate and right, title and interest for all of the remainder of the current term ending September 30,1980 ° * The “assignment” further provided:

“The automatic extension periods granted in the Assigned Lease are expressly excluded from this assignment. Assignor [plaintiff] reserves the right of re-entry in the event of a default by Assignee.”

Under this “assignment,” assignees Value Rug and Piper’s Carpeting agreed to pay the entire monthly rent of $2416.67 plus a stipulated percentage rental.

Subsequently, assignees (Value Rug and Piper’s Carpeting) notified defendant trustee, which at this time was the lessor in fact, that they wished to terminate the assigned lease at the end of the original lease term, September 30, 1980. The notification complied with the 180-day period of the end of the lease term as prescribed by the original lease. Defendant trustee then leased the premises to a third party. On May 21, 1980, plaintiff brought this action seeking a declaratory judgment establishing its rights to possession of the leased property as of October 1,1980, at expiration of the original lease term. Both plaintiff and defendants filed motions for summary judgment.

Plaintiff argues the “assignment” contract only incorporates the original term of the prime lease. Furthermore, because the “automatic extension periods * * * are expressly excluded from [the] assignment” plaintiff thereby reserved the right either to continue to lease the property after September 30, or to terminate the lease upon proper notice. Under plaintiff’s theory, the rights of Value Rug and Piper’s Carpeting, assignees, to possession of the leased property ended on September 30, and they had no legal authority to terminate the prime lease.

Defendants urge the lease “assignment” and related documents did not clearly and unambiguously reserve to the plaintiff the right to regain possession as of October 1, 1980; the lease “assignment” did not state the right to send the termination notice was reserved to plaintiff so that such right passed to the assignees; since plaintiff drafted the “assignment” any ambiguity must be construed against plaintiff; and plaintiff’s assertion as to the intent of the parties has been refuted by the language of the “assignment” and by an affidavit filed in the trial court by Jerome R. Rosenberg.

Whether or not a contract is ambiguous is a question of law. (Touhy v. Twentieth Century-Fox Film Corp. (1979), 69 Ill. App. 3d 508, 513, 387 N.E.2d 862, citing Stevenson v. ITT Harper, Inc. (1977), 51 Ill. App. 3d 568, 573, 366 N.E.2d 561, appeal denied (1977), 66 Ill. 2d 642.) A contract will be considered to be ambiguous if it is “ one capable of being understood in more senses than one.’ ” Standard Steel & Wire Corp. v. Chicago Capital Corp. (1975), 26 Ill. App. 3d 915, 919, 326 N.E.2d 33, quoting from First National Bank v. Victor Comptometer Corp. (1970), 123 Ill. App. 2d 335, 341, 260 N.E.2d 99.

In our opinion the sublease of April 11, 1974, and also the “assignment” of December 1, 1977, clearly and unambiguously reserved to plaintiff the right to reoccupy the premises on October 1, 1980, and the right either to accept the automatic extensions of the original lease of July 15,1964, or to terminate it. The clear provisions of the sublease and of the “assignment” make this conclusion inescapable.

The sublease of April 11, 1974, expressly noted the four renewal periods in the original lease and denied to Value Rug and Piper’s Carpeting as sublessees “the privilege or option of renewing or extending this Sublease under and as provided in the Prime Lease.” The sublease expressly terminated on September 29, 1980.

The “assignment” of December 1, 1977, expressly assigns only the “leasehold estate 006 for all the remainder of the current term ending September 30, 1980 * * This provision clearly indicates plaintiff reserved rights under the lease which extended beyond the original term. The “assignment” also provides: “The automatic extension periods are expressly excluded ° * Taking the “assignment” as a whole (see Dasenbrock v. Interstate Bestaurant Corp. (1972), 7 Ill. App. 3d 295, 299, 287 N.E.2d 151), we find that there is only one sense in which the contract can be understood. The contract is clear and unambiguous and reserved to plaintiff all rights of the automatic extension under the prime lease.

Because we have determined the so-called “assignment” contract of December 1,1977, is unambiguous, we must look only to the language of the contract to ascertain the intent of the parties. (Touhy v. Twentieth Century-Fox Film Corp. (1979), 69 Ill. App. 3d 508, 512-13.) We need not and should not look to extrinsic evidence to determine their intent. (Terracom Development Group, Inc. v. Coleman Cable & Wire Co. (1977), 50 Ill. App. 3d 739, 745, 365 N.E.2d 1028.) Furthermore, we cannot add covenants to a contract simply to reach a more equitable agreement. (Touhy v. Twentieth Century-Fox Film Corp. (1979), 69 Ill. App. 3d 508, 513.) Therefore, we find any reference to the change in rent between the sublease and the so-called “assignment,” as well as various expressions of the parties concerning their intent, are legally irrelevant.

In their motion to reconsider the order granting summary judgment to plaintiff, defendants urge counsel for plaintiff, during oral argument before the trial court on September 22, 1980, remarked that the “assignment” was entered into for defendants’ advantage because of tax reasons. Defendants contend this statement by counsel constituted extrinsic evidence going to the intent of the parties. Defendants supported their position by an affidavit by defendant Rosenberg filed with the motion for reconsideration. Since we have concluded the sublease and “assignment” are not ambiguous as a matter of law, the statement of plaintiff’s counsel is an extrinsic matter which this court will not consider. We also note the trial court made clear it was not considering extrinsic evidence in reaching its decision.

Defendants also urge the language in the “assignment” expressly excluding the automatic extension provisions actually refers only to an attempt by plaintiff as assignor to prevent the assignees from having the power of keeping the lease in existence after expiration of the original term. Also, defendants filed a motion for summary judgment in which they contended there was no genuine issue as to any material fact. Defendants’ brief prays for reversal and for remand for entry of a judgment in their favor. Thus both sides in this controversy, by moving for summary judgment, have solemnly assured the trial court and this court that there is no issue of material fact presented by this record. See Catalano v. Pechous (1980), 83 Ill. 2d 146, 154-55, 419 N.E.2d 350.

Defendants cite and depend upon Bevelheimer v. Gierach (1975), 33 Ill. App. 3d 988, 992, 339 N.E.2d 299. There, a lessee assigned the lease to a corporation which he had organized. This court held in substance “that a lessee for a term for years who assigns his lease parts with all his rights thereunder.” (33 Ill. App. 3d 988, 992.) However, it does not appear in Bevelheimer that the lessee as assignor had specifically excepted any right of any kind from the assignment. Therefore, we agree with plaintiff that Bevelheimer is not relevant here.

Similarly in the later cases of Danaj v. Anest (1979), 77 Ill. App. 3d 533, 396 N.E.2d 95, and Dayenian v. American National Bank & Trust Co. (1980), 91 Ill. App. 3d 622, 414 N.E.2d 1199, the question before the court was whether the transaction was an assignment or a sublease because an assignment passed all interest to the assignee. However, in the case at bar, regardless of the legal classification of the document involved, it is manifest that plaintiff expressly retained a reversionary interest in the lease. That interest had been specifically excepted from the original sublease and from the purported assignment. Thus the issue in the three cited cases is the legal nature of the document of transfer.

In the instant case the transfer may or may not have been legally classified as an “assignment” but it did operate, because of the specifically stated exception, to retain a reversionary right in the plaintiff as original lessee. This was true in the case of the sublease, and it remains equally true in the case of the second document referred to as an “assignment.” The parties may refer to the document of December 1, 1977, as an “assignment” or by any other name. The issue remains as to whether this document had specifically reserved certain rights to plaintiff.

We find no issue of material fact in the record before us. We conclude plaintiff is entitled to judgment as a matter of law. The judgment appealed from is accordingly affirmed.

Judgment affirmed.

CAMPBELL, P. J., and O’CONNOR, J., concur.


author: Mr. PRESIDING JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE WAGNER, Defendant-Appellant.
    First District (4th Division)
    No. 80-967
    Opinion filed October 8,1981.
    James J. Doherty, Public Defender, of Chicago (John Thomas Moran, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and James B. Koch, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Following a bench trial, defendant Lawrence Wagner was convicted of attempt to commit the offense of arson (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4 and 20 — 1(a)), and sentenced to a term of 2 years in the Illinois Department of Corrections. The narrow issue before this court is: where the trial court grants a pretrial defense motion to suppress evidence, and within the 30-day period during which the State may perfect an interlocutory appeal therefrom (Ill. Rev. Stat. 1979, ch. 110A, par. 604(a)), the trial court grants a prosecution motion to vacate and reconsider the suppression order, is the State required to rest on the evidence presented at the first hearing or may the State introduce any evidence including that which was either newly discovered or known, but not introduced, at the first hearing.

We affirm.

Defendant herein was arrested without a warrant in an alley next to a garage. Two police officers observed him crouched down next to the garage in an alley, holding a light which he extinguished as he got up. The officers recognized the man as defendant and ordered him to stop, but he moved away. The officers apprehended defendant, noticed the odor of a petroleum product and discovered a bottle containing a white liquid, a book of matches and a cigarette lighter in his possession.

Defendant made a pretrial motion to prevent the introduction into evidence of the bottle, the matches, and the cigarette lighter. Following a hearing on the motion, the trial court ruled that the State failed to prove that the police had probable cause to effectuate a warrantless arrest of defendant and granted his motion to suppress. On the day that order was entered, the State made an oral motion to vacate the suppression order and to reconsider the motion; 8 days later the State filed a written motion and memorandum in support thereof. At the hearing on the State’s motion for reconsideration, the State argued that the trial court retained jurisdiction to review the appealable suppression order for 30 days. Further, that if the trial court reopened the hearing, the State was entitled to introduce both evidence which was unavailable at the first hearing and evidence which was known but not introduced at that time. The defense acquiesced in the court’s retention of jurisdiction to review its order for 30 days. However, defendant’s position was that the State could not introduce additional evidence unless it demonstrated that it had newly acquired evidence or that defendant misled the prosecution and caused it to refrain from introducing certain evidence.

In relying on People v. Heil (1978), 71 Ill. 2d 458, 376 N.E.2d 1002, the trial court in this case concluded that, in addition to the State’s inter-

Iocutory appeal remedy from the suppression order (Ill. Rev. Stat. 1979, ch. 110A, par. 604(a)), the trial court had the discretionary power to grant the State’s motion to reopen the suppression hearing. The trial court also interpreted People v. Latimore (1978), 67 Ill. App. 3d 243, 384 N.E.2d 829, as authorizing the introduction of new evidence, including that which was known, but not introduced, at the time of the initial hearing, in opposition to defendant’s motion to suppress.

At the reopened hearing, the State recalled as a witness the arresting police officer who testified that at the time of the arrest, he was aware of a series of 10 garage fires in alleys at nighttime within one block of the scene of the arrest. He also was aware from his commanding officer’s message book that the police officers were to pay special attention to defendant who was known and wanted for committing arsons. The trial court then denied the motion to suppress, inferring that the evidence was sufficient to establish that the police had probable cause to make a warrantless arrest of defendant.

I

Following the granting of a pretrial motion to suppress evidence the State is authorized to perfect an interlocutory appeal within 30 days of the entry of the suppression order. (Ill. Rev. Stat. 1979, ch. 110A, pars. 604(a), 606.) However, we find no authority to suggest that within the 30-day period the right to appeal is an exclusive remedy, precluding a petition for reconsideration. Nor do we find any authority for imposing a limitation on the introduction of evidence at a suppression hearing reopened as here, within that time. We have previously stated that public policy favors correction of errors at the trial level, and a timely motion to reconsider is an appropriate method to be utilized in directing the attention of the trial court to a claim of error. (People v. Robins (1976), 33 Ill. App. 3d 634, 636, 338 N.E.2d 222; People v. Stokes (1977), 49 Ill. App. 3d 296, 364 N.E.2d 300.) Therefore, we find that the trial court acted within the scope of its discretionary power in reopening the suppression hearing for additional evidence.

Defendant cites People v. Taylor (1972), 50 Ill. 2d 136, 277 N.E.2d 878, in support of his proposition that the doctrine of collateral estoppel in general bars the State from relitigation of a pretrial suppression order. Taylor addressed a factual situation wherein the State elected not to perfect an interlocutory appeal from a preindictment order suppressing evidence unlawfully seized. The Illinois Supreme Court affirmed the trial court’s ruling that it was bound by the previous suppression order, and the State could not have that order reviewed by another trial judge after the expiration of its right to appeal. Taylor is therefore distinguishable.

II

Defendant also contends that the State failed to prove him guilty beyond a reasonable doubt. However, that argument is predicated on a finding that the trial court erred in rehearing and denying his motion to suppress evidence which was introduced at the trial, and which contributed in substantial part to his conviction. We need not address this issue in view of our finding that the trial court had the discretionary power to reopen the suppression hearing within the time period in which the State could appeal.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.