author: JUSTICE JIGANTI

text:
    MELROSE PARK NATIONAL BANK, Plaintiff-Appellee, v. MELROSE PARK NATIONAL BANK, Trustee, et al., Defendants (COUNTRYSIDE BANK, Defendant-Appellant).
    First District (4th Division)
    No. 83 — 1308
    Opinion filed March 29, 1984.
    Rehearing denied May 8, 1984.

      Richards & Ralph Chartered, of Libertyville, for appellant.
    Kolb & Grotto, Ltd., of Glen Ellyn, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The issue central to this action is whether the security interest in a land trust possessed by the plaintiff, Melrose Park National Bank (Melrose), was a personal property security interest or an equitable mortgage. The beneficiaries of the land trust, who are not parties to this appeal, executed an assignment of their beneficial interest to Melrose, the trustee of the land trust, in order to secure a loan. When the beneficiaries did not pay certain notes which were secured by their assignment of beneficial interest, Melrose commenced an action to foreclose on the assignment of beneficial interest pursuant to the Illinois mortgage foreclosure act. (see Ill. Rev. Stat. 1981, ch. 110, pars. 15 — 101 through 15 — 311.) Countryside Bank (Countryside), the defendant-appellant herein, was joined by Melrose as a defendant because Countryside had previously recorded a memorandum of judgment against a beneficiary of the land trust. In its initial complaint and in two amended complaints, Melrose characterized its security arrangement as an equitable mortgage. In its answer, Countryside alleged that its judgment lien had priority over Melrose’s alleged equitable mortgage because the judgment lien was recorded prior to the deed in trust.

At this point of the proceedings the distinction between an equitable mortgage and a personal property security interest became important because a judgment lien, such as that possessed by Countryside, may attach to an equitable mortgage but not to a personal property security interest. (See generally Lindberg, Assignments of Beneficial Interests in Illinois Land Trusts as Security for a Debt, 70 Ill. B.J. 576 (1982).) Melrose filed a motion for summary judgment. In its memorandum of law in support of the motion, Melrose alleged for the first time that its security arrangement constituted a personal property security interest rather than an equitable mortgage. Furthermore, Melrose contended that the representations in its complaints characterizing its interest as an equitable mortgage were not binding admissions because they were conclusions of law.

The trial court heard oral arguments on the parties’ cross-motions for summary judgment and found that Melrose possessed a personal property security interest, rather than an equitable mortgage, under the appellate court’s interpretation of the Uniform Commercial Code in Quinn v. Pullman Trust & Savings Bank (1968), 98 Ill. App. 2d 402, 240 N.E.2d 791. Consequently, Countryside acquired no lien rights by virtue of its memorandum of judgment. The order of summary judgment was later supplemented to include a decree of foreclosure and sale of the beneficial interest, and any right of redemption was thus lost.

Countryside now appeals and raises two issues for this court’s review. First, Countryside argues that the trial court’s interpretation and application of the Quinn case were erroneous as a matter of law. Second, Countryside contends that Melrose’s characterizations in its complaints designating its security interest as an equitable mortgage are binding admissions.

We shall first consider Countryside’s contention that the trial court misinterpreted Quinn v. Pullman Trust & Savings Bank (1968), 98 Ill. App. 2d 402, 240 N.E.2d 791, when it concluded that Melrose possessed a personal property security interest in the land trust rather than an equitable mortgage. Prior to discussing the Quinn case, however, we believe it necessary to examine the groundwork upon which Quinn is predicated and the Illinois Supreme Court cases within which Quinn finds its support.

In an Illinois land trust, both the legal and equitable title to the trust property lie with the land trust trustee. (In re Estate of Alpert (1983), 95 Ill. 2d 377, 477 N.E.2d 796; People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 389 N.E.2d 540; Levine v. Pascal (1968), 94 Ill. App. 2d 43, 236 N.E.2d 425.) A land trust thus differs from a conventional trust under which the trustee holds legal title and the beneficiary holds equitable title. (See generally Comment, Land Trustee as Secured Creditor: Fiduciary Duties Revisited, 1982 So. Ill. L.J. 249.) A land trust beneficiary retains what is referred to as a personal property interest (People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 389 N.E.2d 540; American National Bank & Trust Co. v. Ryan (1982), 106 Ill. App. 3d 434, 436 N.E.2d 37); the beneficiary does not possess a direct interest in the real estate res of the trust. (In re Estate of Alpert (1981), 102 Ill. App. 3d 600, 430 N.E.2d 181, aff’d (1983), 95 Ill. 2d 377, 447 N.E.2d 796; First Federal Savings & Loan Association v. Pogue (1979), 72 Ill. App. 3d 54, 389 N.E.2d 652.) A land trust beneficiary may assign or transfer his beneficial interest. The assignee of a beneficial interest in an Illinois land trust acquires only an interest in personal property; the transaction does not give the assignee a direct interest in the realty res of the trust. (In re Estate of Alpert (1983), 95 Ill. 2d 377, 447 N.E.2d 796.) In other words, the principles applicable to acquiring a security interest in the beneficial interest of an Illinois land trust are those applicable to acquiring a security interest in personalty. (American National Bank & Trust Co. v. Ryan (1982), 106 Ill. App. 3d 434, 436 N.E.2d 37; Sheridan v. Park National Bank (1981), 97 Ill. App. 3d 589, 422 N.E.2d 1130; First Federal Savings & Loan Association v. Pogue (1979), 72 Ill. App. 3d 54, 389 N.E.2d 652.) The creation of a security interest in personal property is governed by article 9 of the Illinois Uniform Commercial Code. Ill. Rev. Stat. 1981, ch. 26, par. 9 — 101 et seq.\ see also First Federal Savings & Loan Association v. Pogue (1979), 72 Ill. App. 3d 54, 389 N.E.2d 652.

It has generally been held that the assignment of a beneficial interest to secure a note does not convert it into a real estate mortgage so as to permit a right of redemption. (American National Bank & Trust Co. v. Ryan (1982), 106 Ill. App. 3d 434, 436 N.E.2d 37; Sheridan v. Park National Bank (1981), 97 Ill. App. 3d 589, 422 N.E.2d 1130; Shefner v. University National Bank (1976), 40 Ill. App. 3d 978, 353 N.E.2d 126.) Similarly, a lien upon a beneficial interest in an Illinois land trust is not a lien upon the real property itself. First Federal Savings & Loan Association v. Pogue (1979), 72 Ill. App. 3d 54, 389 N.E.2d 652; see also In re Romano (N.D. Ill. 1977), 426 F. Supp. 1123, and cases cited therein; Turner, Some Aspects of Beneficial Interests Under Illinois Land Trusts, 39 Ill. L. Rev. 216 (1945).

Although the body of case law discussed above appears to be well settled, it becomes necessary at this juncture to point out a certain tension which arises from time to time between a personal property security interest under the Uniform Commercial Code and an equitable mortgage subject to the right of redemption under Illinois mortgage law. “Every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 95, par. 55.) Thus, if a deed in real estate is offered as security for a loan, it will be held to be an equitable mortgage under Illinois mortgage law. (See Schwartzentruber v. Stephens (1956), 8 Ill. 2d 222, 133 N.E.2d 33.) In contrast, under the Uniform Commercial Code, if only the beneficial interest in a land trust, as opposed to a deed in real estate, is pledged as security for a loan, the resulting security interest may be held to be an interest in personalty. (See American National Bank & Trust Co. v. Ryan (1982), 106 Ill. App. 3d 434, 436 N.E.2d 37; Sheridan v. Park National Bank (1981), 97 Ill. App. 3d 589, 422 N.E.2d 1130; Shefner v. University National Bank (1976), 40 Ill. App. 3d 978, 353 N.E.2d 126.) Although both situations are used to secure a loan, an equitable mortgage will be considered as an interest in real estate while the beneficial interest in a land trust may be considered as an interest in personalty. Thus, through utilization of the legal fiction of a land trust, a personal property security arrangement which is in substance indistinguishable from a mortgage, because both arrangements may be created as security for a loan, will be immune from attachment by certain types of equitable liens. An equitable mortgage is subject to the right of redemption and it may be attached by a judgment lien; a personal property security interest in a land trust is not subject to the right of redemption and judgment liens may not attach. These distinctions between equitable mortgages and personal property security interests become pertinent during the following discussion of case law distinguishing the two types of security arrangements.

In the midst of the line of case law which establishes a security interest in a land-trust beneficial interest as one in personal property,

the 1922 Illinois Supreme Court case of DeVoigne v. Chicago Title & Trust Co. (1922), 304 Ill. 177, 136 N.E. 498, occasionally arises and is distinguished by the courts. In DeVoigne, the court found a security interest in the beneficial interest in a land trust to be an equitable mortgage rather than an interest in personalty. In that case, the owners of a lot created a land trust to secure financing for the construction of a house. The trust agreement provided that if the owners paid the balance due within 60 days after completion of the work, the trustee would reconvey the legal and equitable titles to the owners. The trust agreement also stated that if the payment was not made, the trustee was to sell the land, as opposed to the beneficial interest, at a public auction. The court found that the trust instruments were intended by the parties to serve as a mortgage on the property and that an equitable mortgage had in fact been created. See also McClintock, Equity sec. 119 (2d ed. 1948) (equitable mortgages determined by intention of the parties).

DeVoigne was later distinguished by the Illinois Supreme Court in Horney v. Hayes (1957), 11 Ill. 2d 178, 142 N.E.2d 94. In Homey, the court again looked to the intent of the parties but found, contrary to the DeVoigne case, that the security interest before it was one in the nature of a personal property interest. Perhaps the most critical fact which the Homey court utilized to assess the intent of the parties was that the trust agreement did not provide for the sale of the real estate upon default as it did in the DeVoigne case. The court also observed that the trust was not created as security for a debt; that the assignment of the beneficial interest occurred subsequent to the creation of the trust; and that the assignment concerned only the beneficial interest in the trust. The court found that these facts indicated that the parties intended to create a personal property security interest rather than an equitable mortgage.

In the cases coming after DeVoigne and Horney, the courts have generally followed the Homey holding to find that security interests in land trust beneficial interests are personal property interests rather than equitable mortgages. (See, e.g., In re Estate of Alpert (1983), 95 Ill. 2d 377, 447 N.E.2d 796; First Federal Savings & Loan Association v. Pogue (1979), 72 Ill. App. 3d 54, 389 N.E.2d 652; Shefner v. University National Bank (1976), 40 Ill. App. 3d 978, 353 N.E.2d 126; Quinn v. Pullman Trust & Savings Bank (1968), 98 Ill. App. 2d 402, 240 N.E.2d 791; Lawn Savings & Loan Association v. Quinn (1967), 81 Ill. App. 2d 304, 225 N.E.2d 683; Lindberg, Assignments of Beneficial Interests in Illinois Land Trusts as Security for a Debt, 70 Ill. B.J. 576, 579-80 (1982); contra, Landino v. American National Bank (1983), 120 Ill. App. 3d 740.)

One such case which recognized a personal property security interest to be present was Quinn v. Pullman Trust & Savings Bank (1968), 98 Ill. App. 2d 402, 240 N.E.2d 791, the case upon which the trial court based its decision in the case at bar. Quinn reiterated the four factual references which the Horney court cited to indicate that the security interest at issue was personal property rather than an equitable mortgage. The Quinn court thus found that because its trust agreements contained no provision for sale of the real estate subject matter of the trust on default; that because the land trust was set up for purposes other than as security for a debt; that because the pledge of the beneficial interest was subsequent to the creation of the trust; and that because the pledge security transaction was of the trust beneficial interest only, the transaction would not be construed to be a real estate mortgage. The court further characterized these four factual concerns of Horney to be “tests,” the non-compliance with which “may constitute” a real estate mortgage.

This background discussion now leads us to the facts presented in the case at bar. The trust instruments between Melrose and the beneficiaries did not provide that the real estate subject matter would be sold if the beneficiaries were in default. Further, the security transaction concerned the land trust beneficial interest only and made no reference to the real estate res of the trust. These two facts are indicative of an intent to form a personal property security interest under Horney In contrast, Melrose admitted that the land trust was created as security for a debt. There is some dispute as to whether the pledge of the beneficial interest was subsequent to the creation of the trust; however, we note that the creation of the trust and the assignment of the beneficial interest occurred on the same day. These two facts are indicative of an intent to form an equitable mortgage under Horney.

The thrust of Countryside’s argument is that all four of the factual settings cited in Horney must be satisfied before a personal property security interest can be found to be present. We disagree. We do not think that the supreme court created any hard and fast “tests” in Horney and DeVoigne but rather set forth guidelines which may be used to garner the intent of the parties from the trust instruments. We believe that the facts in each case must be considered together and the court must decide whether, on balance, the facts are more indicative of an intent to create a personal property security interest or an intent to create an equitable mortgage.

We believe that several cases following Horney and DeVoigne bear out our conclusion that Horney and DeVoigne did not set out conclusive tests for determining the existence of a personal property security interest. For example, it has been repeatedly stated that the mere fact that an assignment of a beneficial interest secures a note will not convert a security interest into a real estate mortgage. (American National Bank & Trust Co. v. Ryan (1982), 106 Ill. App. 3d 434, 436 N.E.2d 37; Sheridan v. Park National Bank (1981), 97 Ill. App. 3d 589, 422 N.E.2d 1130; Shefner v. University National Bank (1976), 40 Ill. App. 3d 978, 353 N.E.2d 126.) Similarly, in First Federal Savings & Loan Association v. Pogue (1979), 72 Ill. App. 3d 54, 389 N.E.2d 652, the court stated that a mortgage may be present if the conveyance to a trustee is made merely as security for a loan and if the parties contemplated that the trustee would reconvey the property upon satisfaction of a debt. The court found that because these two facts were not present in the case before it, the security interest at issue was a personal property security interest. The court considered the facts to assess the intent of the parties and concluded that the parties had treated the security arrangement as a personal property interest and not as a mortgage. We find that the trial court in the case at bar had sufficient undisputed facts before it to conclude as a matter of law that the security arrangement at issue was a personal property interest.

Countryside’s second argument on appeal is that Melrose’s characterizations in its complaints designating its interest as an equitable mortgage are binding admissions. We disagree. We believe that Melrose’s representations were legal conclusions which were overridden by conflicting allegations of fact found in the complaints’ exhibits. (See W. H. Lyman Construction Co. v. Village of Gurnee (1980), 84 Ill. App. 3d 28, 403 N.E.2d 1325; Barger v. First National Bank (1941), 310 Ill. App. 628, 35 N.E.2d 556.) As we have already discussed, we think that the provisions of the trust agreements, which were attached as exhibits to the complaints, indicated the parties’ intention to create a personal property security interest in a land trust. Thus, where the provisions of the trust agreements were in conflict with conclusions of law found in the complaints, the trust agreement exhibits controlled. We therefore cannot find that Melrose’s representations constituted binding admissions.

For the foregoing reasons, we find that the trial court properly granted summary judgment in favor of Melrose.

Affirmed.

JOHNSON and ROMITI, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE HARTMAN

license: Public Domain

text:
    ROSOS LITHO SUPPLY CORPORATION, Plaintiff-Appellee and Cross-Appellant, v. RICHARD T. HANSEN, Defendant-Appellant and Cross-Appellee.
    First District (2nd Division)
    No. 82 — 2240
    Opinion filed March 13, 1984.
    Modified on denial of rehearing April 17, 1984.

      Steven G.M. Stein and Paul Cottrell, both of Fohrman, Lurie, Sklar & Simon, Ltd., of Chicago, for appellant.
    Canel, Aronson & Whitted and Stone, Pogrund & Korey, both of Chicago (Richard J. Aronson and Martin S. Korey, of counsel), for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

A jury found defendant Richard T. Hansen (Hansen), a licensed architect, and two other defendants guilty of negligence in the construction of a building addition commissioned by its owner, plaintiff Rosos Litho Supply Corporation (Rosos). The jury also found that Hansen had not breached his contract with Rosos. Judgment was entered on the verdict and alternative post-trial motions for judgment notwithstanding the verdict, for a remittitur, or for a new trial, were denied. Of defendants, only Hansen appeals. Rosos cross-appeals.

The issues raised on appeal and cross-appeal are whether: (1) recovery of economic loss is prohibited in a negligence action against an architect; (2) the standard of care for an architect was sufficiently established and the breach of this standard proven; (3) the jury considered the proper measures of damages; and (4) the jury was authorized to apportion defendants’ liability.

On July 2, 1973, Rosos entered into a written contract with Hansen, who agreed to design and supervise construction of a storage building addition to Rosos’ existing structure in Lake Bluff, Illinois. The addition was to have a concrete floor of 33,000 square feet, divided into 40 feet by 40 feet bays, to match similar bays in the existing structure. Hansen recommended to Rosos that the 40 feet by 40 feet slabs be saw cut to reduce cracking and keep the water in the concrete to a minimum. Rosos chose not to do so.

Rosos acted as its own general contractor. Hansen wrote separate specifications for each of the trades involved in the construction. Rosos contracted with Herky Trucking, Inc. (Herky), on May 28, 1974, for excavating the foundation, and layering and compacting the fill in preparation for laying the concrete floor. On August 7, 1974, Rosos contracted with Drake Construction Company (Drake) to construct the concrete floor, among other things. Herky completed its foundation work in October 1974. The fill was then ready for the concrete; however, the roof had to be completed first, and Drake did not begin pouring concrete until January 28, 1975. The prepared fill was exposed for about three months. During that time, in December 1974, snow cleared from the roof under construction was shoveled through open skylights onto the exposed fill, where it remained piled for a time before being cleared by Drake.

After the addition was built, numerous cracks developed in the concrete floor. Slab displacement resulted in height disparities of as much as three-quarters of an inch at slab junctures, making it difficult to maneuver forklift trucks and other equipment over the floor. On November 19, 1976, Rosos filed a complaint against Hansen, Herky, and Drake, with counts sounding in contract and warranty breaches, and in negligence. On March 11, 1977, Hansen filed a counterclaim for the balance due on his fee. Summary judgment was awarded to Hansen on Rosos’ warranty count on November 10,1977.

At trial, beginning on May 19, 1982, Hansen described the terms of his standard American Institute of Architects contract with Rosos. Under specifications written by Hansen, the excavator was to hire a soil engineer, to be paid by the owner if necessary, to test each layer of fill as it was put in and to make daily reports to Hansen. A soil test was made between the middle of September and early October 1974, when excavator Herky had put in only three-quarters of the fill. A preliminary field test revealed compliance with the 95% minimum compaction required by the specifications; however, a follow-up laboratory report showed that three of five soil samples fell below the requisite figure. By letter, Hansen advised Herky of the low compaction. Herky assured him the problem would be remedied. No further tests were made by a soil engineer, nor did Hansen order any, although Hansen had become aware in December 1974 that there was frost in the fill. The project specifications required Hansen to approve the soil before any concrete was laid, but Drake already was pouring concrete when Hansen arrived on the job on January 28, 1975. Drake told Hansen the soil had been tested and no frost found in those holes that had been dug. Drake’s test of the fill in January was not made by a soil engineer.

Herky’s president, Jack Herchenbach, testified that his contract with Rosos called for Herky to employ a soil engineer. No tests were ordered between October 1974 and January 1975, however. Edward Paramsky, co-owner of Drake, testified that Hansen asked him to check for frost in the fill, which Paramsky observed on January 6, 1975. He later dug some holes and determined the fill to be frost free.

A series of experts, including structural engineers, architects, and a petrographer-geologist, testified on behalf of Rosos and various defendants. They attributed the defects in the concrete to various causes: settlement of the subgrade at different levels due to “frost in the fill,” caused by excess moisture in the soil which, in turn, may have resulted from snow being piled onto the fill; insufficient soil compaction; concrete shrinkage due to either excess water in the concrete mixture or failure to apply a curing compound to the drying concrete; and differential shrinkage of the top and bottom surfaces of the slabs. These experts recommended remedial measures, most commonly “cement grouting,” whereby material is inserted into the voids beneath the slabs through holes drilled into the concrete, cracks are filled with epoxy, and slab edges are ground level. A structural engineer testified for Rosos that because the success of such repair could not be assured, tearing out all the slabs and replacing them entirely was an alternative.

In its findings, the jury awarded Rosos $115,000 on its negligence claim and found for defendants and against Rosos on the contract claim. Although construction was completed in 1975, over defendants’ objection the jury was given verdict forms based upon contribution among defendants. The relative fault assigned to defendants was 10% to Hansen, 60% to Drake and 30% to Herky. Hansen was awarded $1,709.84 on his counterclaim against Rosos, and Hansen was found not entitled to indemnification from the other defendants. Judgment was entered on the verdicts on June 14,1982.

I

Hansen contends the economic damages assessed against him are not recoverable in a negligence action under Illinois law. Rosos responds that Hansen waived this argument because he failed to raise it until his post-trial motion. Rosos’ tort action seeking economic damages from Hansen was contained in count III of its complaint. Although Hansen had not previously moved to strike count III, his post-trial motion challenged Rosos’ right to pursue this action in light of the recent supreme court decision in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443 (Moorman). Defects in a complaint such as an insufficient statement of an otherwise cognizable cause of action may be waived; however, the question of whether a legal foundation for a complaint exists may be raised at any time. (Wagner v. Kepler (1951), 411 Ill. 368, 371, 104 N.E.2d 231; Dunlap v. Marshall Field & Co. (1975), 27 Ill. App. 3d 628, 633, 327 N.E.2d 16; Watson v. Chicago Transit Authority (1973), 12 Ill. App. 3d 684, 688, 299 N.E.2d 58.) Under the foregoing authorities, no waiver is applicable to the instant circumstances. Although thus properly before this court, Hansen’s contention nevertheless must be rejected on its merits as inapplicable to professional services involved here.

When defects in a product are “of a qualitative nature and the harm relates to the consumer’s expectation that a product is of a particular quality *** contract, rather than tort [whether sounding in strict liability or negligence], law provides the appropriate set of rules for recovery.” (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 88.) Damages are denominated “economic” where they involve defects in the product itself, requiring repair or replacement. (91 Ill. 2d 69, 82.) Excluded from such damages are personal injury or damage to other property, and defects caused by a sudden and dangerous occurrence rather than deterioration. Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 156, 449 N.E.2d 125; Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 82-83; Vaughn v. General Motors Corp. (1983), 118 Ill. App. 3d 201, 203-04, 454 N.E.2d 740.

Hansen principally relies on Moorman to support his argument that economic loss is not recoverable in a case such as this. There, plaintiff sought recovery for economic loss under tort theories of strict liability, negligence, and misrepresentation as the result of defects in a grain storage tank manufactured and sold by defendant. The supreme court held that these tort theories could not support plaintiff’s claim for mere economic loss, premised on the availability to plaintiff of a warranty remedy, primarily by invoking the Uniform Commercial Code (UCC). (Ill. Rev. Stat. 1981, ch. 26, par. 1 — 101 et seq.) The court repeatedly emphasized that permitting recovery for economic loss would usurp the remedial scheme of the UCC. (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 79, 88, 90, 91.) Warranty, not tort, specifically addresses a consumer’s expectations regarding a product’s suitability and quality. 91 Ill. 2d 69, 82.

Hansen maintains that Moorman represents a philosophical statement about the limits of tort and contract law and accordingly urges that it be read expansively to preclude Rosos’ recovery in the instant case. He contends that an architect’s contractual duties encompass not only those expressed in the contract, but many arising ex lege from the relationship created by the contract. (See Board of Education v. Del Bianco & Associates, Inc. (1978), 57 Ill. App. 3d 302, 308, 372 N.E.2d 953.) As a result, Hansen concludes Rosos must be limited to its remedy for loss on its contract claim. We disagree.

Among the reasons architects have been found answerable in malpractice actions is because they hold themselves out and offer services to the public as experts in their line of endeavor. Those who employ them perceive their skills and abilities to rise above the levels possessed by ordinary laymen. Such persons have the right to expect that architects, as other professionals, possess a standard minimum of special knowledge and ability, will exercise that degree of care and skill as may be reasonable under the circumstances and, when they fail to do so, that they will be subject to damage’ actions for professional negligence, as are other professionals. (See, e.g., Prosser, Torts sec. 32, at 161-62 (4th ed. 1971); Block, As the Walls Came Tumbling Down: Architects’ Expanded Liability, 17 J. Mar. L. Rev. 1 (1984); Kleb v. Wendling (1978), 67 Ill. App. 3d 1016, 1019-20, 385 N.E.2d 346, appeal denied (1979), 75 Ill. 2d 591.) The broad reading of Moor-man urged by Hansen in the instant case would, simply by inference, effectively eliminate and stand squarely in conflict with the body of law defining the scope of an architect’s liability for professional negligence. See, e.g., Mississippi Meadows, Inc. v. Hodson (1973), 13 Ill. App. 3d 24, 299 N.E.2d 359, appeal denied (1973), 54 Ill. 2d 597; Miller v. DeWitt (1965), 59 Ill. App. 2d 38, 208 N.E.2d 249, aff’d in part, rev’d in part on other grounds (1967), 37 Ill. 2d 273 (general discussion of duty); 530 East 89 Corp. v. Unger (1977), 43 N.Y.2d 776, 402 N.Y.S.2d 382, 373 N.E.2d 276; A. R. Moyer, Inc. v. Graham (Fla. 1973), 285 So. 2d 397; Willner v. Woodward (1959), 201 Va. 104, 109 S.E.2d 132; United States for use of Los Angeles Testing Laboratory v. Rogers & Rogers (S.D. Cal. 1958), 161 F. Supp. 132; Annot., 65 A.L.R.3d 249 (1975).

Such an extended reading of Moorman would also cast aside, by inference, the previously recognized measure of damages in architectural malpractice cases, which has been the cost of repairing the defective structure. (See, e.g., Society of Mount Carmel v. Fox (1980), 90 Ill. App. 3d 537, 413 N.E.2d 480; Barraque v. Neff(1942), 202 La. 360, 11 So. 2d 697; Trunk & Gordon v. Clark (1914), 163 Iowa 620, 145 N.W. 277.) If the defect is so fundamental or widespread that it cannot be ameliorated without extensive repairs and expense, then the proper measure of damages has been the difference in value between the building as it stands and its putative value if the architectural services had been satisfactory. See; e.g., Park v. Sohn (1982), 89 Ill. 2d 453, 464-65, 433 N.E.2d 651; Brewer v. Custom Builders Corp. (1976) , 42 Ill. App. 3d 668, 674, 356 N.E.2d 565. See generally 5 Am. Jur. 2d Architects sec. 24 (1962); Annot., 25 A.L.R.2d 1085, 1100 (1952).

Furthermore, since the UCC is inapplicable to the provision of professional services such as those rendered by Hansen, Rosos has no warranty remedy for economic loss against him for damages. (See Pitler v. Michael Reese Hospital (1980), 92 Ill. App. 3d 739, 741-42, 415 N.E.2d 1255; Rosen v. DePorter-Butterworth Tours, Inc. (1978), 62 Ill. App. 3d 762, 764, 379 N.E.2d 407.) Nor is there any other implied common law or statutory warranty applicable to an architect’s services. (See Sears, Roebuck & Co. v. Enco Associates, Inc. (1977), 43 N.Y.2d 389, 398, 401 N.Y.S.2d 767, 772, 372 N.E.2d 555, 559.) In Illinois “in the absence of a special agreement [the architect] does not imply or guarantee a perfect plan or satisfactory result.” (Mississippi Meadows, Inc. v. Hodson (1973), 13 Ill. App. 3d 24, 26.) The absence of implied warranties in architects’ services makes it possible for an architect to effectively insulate himself from liability by omitting certain express warranty terms from his contract. In contrast, the UCC’s implied warranties of merchantability and fitness cannot be waived contractually except by including a conspicuous writing to that effect. (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 316(2).) The UCC policy of protecting consumers by means of implied warranties would not be promoted by depriving Rosos of a viable cause of action for economic loss.

The circumstances presented here are concerned with the rendering of professional services, not with products (see Lowrie v. City of Evanston (1977), 50 Ill. App. 3d 376, 365 N.E.2d 923, appeal denied (1977) , 66 Ill. 2d 631; cf. Schipper v. Levitt & Sons, Inc. (1965), 44 N.J. 70, 207 A.2d 314), and are analogous to negligence actions in Illinois against professionals who provide services similar to architects. For example, in Bates & Rogers Construction Corp. v. North Shore Sanitary District (1980), 92 Ill. App. 3d 90, 414 N.E.2d 1274, engineers were found guilty of professional negligence in their design of electrical switch gear and negligent administration of their duties under a contract. The appellate court, in affirming the judgment, specifically approved the award of economic damages in such cases, and distinguished the rule precluding recovery of purely economic losses announced in Alfred N. Koplin & Co. v. Chrysler Corp. (1977), 49 Ill. App. 3d 194, 203, 364 N.E.2d 100, from design malpractice cases. A supervising engineering company was held answerable for economic losses attributed to its allegedly negligent design of a manhole base and its administration of the construction contract in W. H. Lyman Construction Co. v. Village of Gurnee (1980), 84 Ill. App. 3d 28, 403 N.E.2d 1325, appeal denied (1980), 81 Ill. 2d 600. And in Normoyle-Berg & Associates, Inc. v. Village of Deer Creek (1976), 39 Ill. App. 3d 744, 350 N.E.2d 559, an engineer was held chargeable for economic injury in a negligence action for failure to complete certain plans and failure to properly supervise a construction project. See also Gateway Erectors Division of Imoco-Gateway Corp. v. Lutheran General Hospital (1981), 102 Ill. App. 3d 300, 430 N.E.2d 20, appeal denied (1982), 91 Ill. 2d 552.

Hansen relies upon Palatine National Bank v. Charles W. Greengard Associates, Inc. (1983), 119 Ill. App. 3d 376, 456 N.E.2d 635, in which the second district appellate cóurt upheld the dismissal of professional engineering negligence counts seeking damages for economic losses, relying upon Moorman. The court in Palatine National Bank makes no attempt to distinguish between professional services negligently rendered and defective products, the latter of which was the subject of Moorman. The authorities it cites in support of its conclusion are exclusively products liability cases. Accordingly, we decline to follow that decision.

We do not read Moorman as having abolished by inference all professional malpractice actions charging economic losses, arising from service contracts, based upon negligent violation of professional standards of care and skill. Such a significant departure from established law, which would affect not only architects’ malpractice, but similar actions against other professionals, should be signalled expressly by the supreme court itself. Significantly, in a case similar to the present one, Cooper v. Jevne (1976), 56 Cal. App. 3d 860, 128 Cal. Rptr. 724, architects who drew construction plans and specifications and acted as supervising architects under written contracts were charged with professional malpractice. The architects contended that they were not answerable for economic damages alone in a negligence action, relying upon Seely v. White Motor Co. (1965), 63 Cal. 2d 9, 403 R2d 145, 45 Cal. Rptr. 17, a case extensively cited and relied upon by our own supreme court in reaching its result in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 75, 77, 78, 79, 80, 81, 82, 86, 88. In distinguishing Seely, the court in Cooper observed:

“Unfortunately for the architects, the liability at issue in this case is the malpractice liability of a professional for negligence in the rendition of his services and not that of a manufacturer for defects in his product.” (Cooper v. Jeune (1976), 56 Cal. App. 3d 860, 868,128 Cal. Rptr. 724, 728.)

Our own analysis of the law is in harmony with the foregoing and we hold that economic loss occasioned by an architect’s negligent performance of his professional duties is recoverable in an action in tort. See also Ferentchak v. Village of Frankfort (1984), 121 Ill. App. 3d 599.

Hansen also contends that because the Moorman rule has been applied to building contractors who render “construction services,” it should be extended to architects providing such services. The cases relied upon by Hansen, however, are distinguishable, namely, Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 449 N.E.2d 125, Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 441 N.E.2d 324, and Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 421 N.E.2d 182. The first two cases involved builders who constructed homes containing defects and the third involved an alleged breach of a warranty of habitability, unlike the solely professional services rendered in the present case. (Cf. Flintkote Co. v. Dravo Corp. (11th Cir. 1982), 678 F.2d 942.) Similarly, Illinois cases preceding Moorman which held economic loss not recoverable in tort involved buyer-seller relationships where,-unless waived, some form of implied warranty existed, unlike the circumstances present here. Fireman’s Fund American Insurance Cos. v. Burns Electronic Security Services, Inc. (1980), 93 Ill. App. 3d 298, 417 N.E.2d 131; Album Graphics, Inc. v. Beatrice Foods Co. (1980), 87 Ill. App. 3d 338, 408 N.E.2d 1041; Alfred N. Koplin & Co. v. Chrysler Corp. (1977), 49 Ill. App. 3d 194.

II

Error is next urged by Hansen in Rosos’ asserted failure to establish both the standard of care by which his professional actions could be evaluated by the jury and the breach of this standard. According to Mississippi Meadows, Inc. v. Hodson (1973), 13 Ill. App. 3d 24, 26, cited by both parties, an architect “is tested by the rule of ordinary and reasonable skill usually exercised by one in that profession.” This was essentially the standard presented to the instant jury in its instructions. Analogizing to cases involving the negligence of physicians and attorneys, Hansen argues that this standard can be established only be expert testimony, which Rosos failed to present. (See, e.g., Walski v. Tiesenga (1978), 72 Ill. 2d 249, 381 N.E.2d 279; Brown v. Gitlin (1974), 19 Ill. App. 3d 1018, 313 N.E.2d 180.) In the absence of Illinois cases directly in point, Hansen refers to other jurisdictions requiring such testimony. (See 530 East 89 Corp. v. Unger (1977), 43 N.Y.2d 776, 402 N.Y.S.2d 382, 373 N.E.2d 276; National Cash Register Co. v. Haak (1975), 233 Pa. Super. 562, 335 A.2d 407.) Illinois decisions, however, have held that an architect’s tort duty can also be defined by reference to his particular employment agreement. (Bates & Rogers Construction Corp. v. North Shore Sanitary District (1980), 92 Ill. App. 3d 90, 414 N.E.2d 1274; Mississippi Meadows, Inc. v. Hodson (1973), 13 Ill. App. 3d 24.) Notwithstanding the foregoing, the record demonstrates that the standard of care applicable to Hansen in the instant circumstances was sufficiently established at trial.

By contract, Hansen agreed to: Oversee the quality and quantity of the various contractors’ work; accept full authority to require that any work not meeting project specifications be remedied; receive daily reports of a soil engineer to be hired by the excavator; and hire a soil engineer where he deemed it necessary. The services of a soil engineer were thereby inferably significant to the success of the project, and the ultimate responsibility of assuring the participation of such an engineer rested with Hansen. This responsibility was underscored by expert witnesses. An architect testified that, because of the ongoing compaction requirements in the project specifications, a full-time soil engineer should have been retained. A structural engineer testified that daily testing by a soil engineer was “very important” because of the negative consequences of inadequate compaction. Hansen’s duty of care with respect to the hiring and use of a soil engineer was sufficiently established by this evidence.

Evidence of Hansen’s breach of duty was likewise supported by expert testimony. Although the experts’ opinions conflicted regarding the causes of the damage to the concrete, the weight to be accorded this evidence was for the jury to decide. (Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 424, 328 N.E.2d 301.) Evidence submitted to the jury here suggested that two factors contributing to the damage were inadequate compaction and frost in the fill, both of which could have been diagnosed and the ensuing damage prevented by a soil engineer’s daily testing. Hansen himself testified that he ordered no soil tests from the time the fill was three-quarters completed until the concrete was poured, some three months later. He also said he observed the piles of snow on the fill, considered by one expert to be a cause of excess moisture resulting in frost in the fill. The jury could have inferred from Hansen’s own testimony that he was on notice of possible compaction or frost problems; that he was thereby required to have the soil tested by an expert; and that his failure to do so violated the standards of his profession. We find no error in this regard.

Ill

Hansen insists that Rosos failed to prove its damages properly and that the award of $115,000 cannot stand. Generally, plaintiff has the burden of proving his damages to a reasonable degree of certainty; direct and tangible proof must be offered where damages can be reduced to monetary terms; and, conversely, evidence of damages may not be remote, speculative, or uncertain. (Sheetz v. Morgan (1981), 98 Ill. App. 3d 794, 801, 424 N.E.2d 867.) Where a party fulfills his burden of proving his right to damages, but fails to establish a proper basis for computing those damages, only nominal damages can be recovered. Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 678, 356 N.E.2d 565.

In the instant case, considerable testimony was adduced with regard to the extensive cracking and displacement of the concrete slabs, that such damage Was beyond acceptable limits, and that the use of the addition for its intended purposes was impaired because of the condition of the floor. Witnesses, testifying for both plaintiff and defendants, recommended some type of repair, including overlaying with a new floor, but most often “cement grouting.” One witness suggested removing and replacing the damaged slabs at a cost of $125,000, as an alternative to grouting repair. Although there was no testimony as to the necessity of total replacement, an architect and engineer testified for Rosos that the cost of tearing out the concrete and fill, demolishing walls, and then replacing the fill, concrete and walls, exclusive of his fee, totalled $228,935. An engineer specializing in remedial work on concrete slabs testified in rebuttal that “cement grouting” is routinely and successfully done and the cost of repairs would be $30,800, although he conceded on cross-examination that at 1982 prices his 1977 estimate would have to be increased by 40%. Evidence supporting Rosos’ cost of correcting the defects was thus presented to the jury. (See Frisch Contracting Service Corp. v. Northern Illinois Gas Co. (1981), 93 Ill. App. 3d 799, 804-05, 417 N.E.2d 1070.) The jury could have found that Rosos, having fulfilled its burden of establishing a basis for computing damages, was entitled to more than nominal damages. The jury for the same reason was not obliged to rely on Hansen’s repair estimate.

In its cross-appeal, Rosos assigns error to the circuit court’s exclusion of expert testimony which would have shown the amount by which the defective construction diminished in value the building addition. As previously indicated, some evidence was adduced that replacement would be proper; moreover, Rosos’ proposed “repair” involved extensive demolition of the existing structure. The circuit court, however, sustained Hansen’s motion in limine to exclude testimony as to diminution in value, indispensable to an equitable resolution of the instant damages. Where a proposed repair requires a substantial tearing down and rebuilding of the structure, or where the cost of the repair is disproportionate to the benefit to plaintiff, the correct measure of damages is the amount by which the defective construction reduces the value of the property, unless this latter amount exceeds the former. (Park v. Sohn (1982), 89 Ill. 2d 453, 464-65; Mayfield v. Swafford (1982), 106 Ill. App. 3d 610, 616, 435 N.E.2d 953; Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 674. See also 5 Am. Jur. 2d Architects sec. 24 (1962); Annot., 25 A.L.R.2d 1085, 1100 (1952).) The circuit court’s denial of Rosos’ attempt to have a witness testify as to the diminution in property value resulting from the defective concrete was in error. The judgment as to damages therefore must be vacated and the cause remanded for a new trial on the issue of damages only. On retrial the jury should be permitted to consider evidence as to the cost of correcting the defective concrete, as well as evidence relating to diminution in value. The jury should be instructed that the usual measure of damages is the cost of correcting the defects, unless the jury finds from the evidence that corrective measures would entail unreasonable demolition of the existing structure or that the cost of such corrections would be unreasonably disproportionate to the benefit to Rosos, in which case the measure of damages is the impliedly lesser amount by which the defects have reduced the value of the property. Park v. Sohn (1982), 89 Ill. 2d 453, 464-65; Mayfield v. Swafford (1982), 106 Ill. App. 3d 610, 435 N.E.2d 953.

IV

Also, on cross-appeal, Rosos contends that the circuit court erred by allowing the jury to apportion liability among defendants in contribution over its objection, contrary to Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, which permitted apportionment of damages among joint tortfeasors in causes of action arising on or after March 1, 1978. (See also Ill. Rev. Stat. 1981, ch. 70, pars. 301 through 305.) We agree. The instant cause of action arose in 1975, well before the relevant date. The right to contribution among joint tortfeasors did not exist in Illinois until authorized by the supreme court in Skinner (see, e.g., Justus v. Abex Corp. (1983), 117 Ill. App. 3d 1018, 454 N.E.2d 3), and therefore no legal basis existed for its application to the case subjudice.

For the foregoing reasons, the judgment of the circuit court assigning liability for negligence is affirmed; that portion of the judgment awarding damages and apportioning liability is vacated and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; vacated and remanded in part.

STAMOS and PERLIN, JJ., concur.

      An excellent discussion of the applications of these definitions and their potential disadvantages appears in Bertschy, The Economic Loss Doctrine in Illinois After Moorman, 71 Ill. B.J. 346 (1983).


author: JUSTICE GREEN

text:
    OTHA HAYWARD, Plaintiff-Appellant, v. JEFF TINERVIN, d/b/a Tinervin and Associates, Defendant-Appellee.
    Fourth District
    No. 4 — 83—0526
    Opinion filed April 9, 1984.

      George E Taseff, of Bloomington, and William D. Campbell, D. Phillip Anderson, and James A. Sergey, all of Student’s Legal Services, of Normal, for appellant.
    Susan H. Brandt, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiff, Otha Hayward, appeals a judgment of the circuit court of McLean County entered during a bench trial on June 28, 1983, dismissing the second count of plaintiff’s amended complaint against defendant, Jeff Tinervin, d/b/a Tinervin and Associates. At issue is the interpretation of legislation concerning the rights of certain tenants to the proceeds of deposits made with landlords to secure obligations of the tenants under a lease between the parties.

The legislation states:

“A lessor of residential real property, containing 10 or more units, who has received a security deposit from a lessee to secure the payment of rent or to compensate for damage to the leased property may not withhold any part of that deposit as compensation for property damage unless he has, within 30 days of the date that the lessee vacated the premises, furnished to the lessee, delivered in person or by mail directed to his last known address, an itemized statement of the damage allegedly caused to the premises and the estimated or actual cost for repairing or replacing each item on that statement, attaching the paid receipts, or copies thereof, for the repair or replacement. If estimated cost is given, the lessor shall furnish the lessee with paid receipts, or copies thereof, within 30 days from the date the statement showing estimated cost was furnished to the lessee, as required by this Section. If no such statement and receipts, or copies thereof, are furnished to the lessee as required by this Section, the lessor shall return the security deposit in full within 45 days of the date that the lessee vacated the premises.
Upon a finding by a circuit court that a lessor has refused to supply the itemized statement required by this Section, or has supplied such statement in bad faith, and has failed or refused to return the amount of the security deposit due within the time limits provided, the lessor shall be liable for an amount equal to twice the amount of the security deposit due, together with court costs and reasonable attorney’s fees.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 80, par. 101.

Plaintiff has presented a report of proceedings complying with Supreme Court Rule 323(c) (87 Ill. 2d R. 323(c)). The report shows that on August 19, 1982, a written lease for the premises in question was entered into between plaintiff, purporting to be “lessee” and defendant purporting to be “lessor.” The premises consisted of an apartment in a building containing over 10 units. Pursuant to the terms of the lease, plaintiff deposited with defendant the sum of $75, which sum was to be applied by defendant to any damage to the premises occasioned by plaintiff, unpaid utility bills or unpaid rent. More than 45 days after the expiration of the lease, defendant had not remitted the deposit to plaintiff. However, seven days before plaintiff filed suit, defendant had tendered plaintiff the sum of $75, which plaintiff refused.

The amended complaint upon which the case was tried as a small claim consisted of two counts. The first count merely requested the return of the $75 deposit. The court dismissed that count upon the defendant’s in-court tender to plaintiff of the sum of $75. The second count sought recovery under the previously described legislation of double the amount of the deposit ($150) and for attorney fees. The trial court dismissed the second count, apparently at the close of plaintiff’s evidence, when the evidence showed that defendant was not the owner of the premises but merely an agent with authority to execute a lease on behalf of the owner.

On appeal plaintiff points out that (1) the statute imposes liability for the deposit on the “lessor”; (2) the lease was executed on behalf of defendant by his authorized agent; (3) the lease described defendant as the “lessor”; and (4) the record gives no indication plaintiff was informed that defendant was acting other than on his own behalf. Plaintiff draws analogy to the rule that an agent entering into a contract on behalf of a principal without disclosing that he is only an agent is liable on the contract personally. (Vander Wagen Brothers, Inc. v. Barnes (1973), 15 Ill. App. 3d 550, 304 N.E.2d 663.) Defendant counters by pointing out that, under section 9 — 201 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 9 — 201), the only person who can seek recovery for rent in an action in forcible entry and detainer is the “owner” or the owner’s personal representative. He contends that if only the owner can sue for the rent under those circumstances, only the owner should be liable for the return of the deposit.

We agree with plaintiff. As stated in Vander Wagen Brothers, the purpose of holding liable the agent who purports to act as a principal is that other contracting parties are entitled to rely on the representation that the party they are dealing with will be responsible for performance of the contract. Here, plaintiff was entitled to rely on the representation that defendant would be responsible for the-return of the deposit. The situation where section 9 — 201 limits who may bring suit for rent is not analogous. There, a contracting party has not been led to rely upon the responsibility of another. The fact that defendant was actually only the agent of the owner did not absolve him of liability, and the trial court should not have entered judgment for defendant for that reason.

Defendant raises a more serious question as to the sufficiency of plaintiff’s proof. The statute regulates withholding of the deposit only when the withholding is “as compensation for property damage.” Refusal of the lessor to return the security deposit within “the time limits provided” is not enough to trigger the operation of the last paragraph of the legislation, which provides for double damage and attorney fees. The provision concerning the refusal is stated in the conjunctive, together with the refusal of the lessor to provide the required statement or the supplying of the statement in bad faith. Here, there was no direct proof that the deposit was being withheld under a claim that plaintiff had damaged the premises.

In support of his contention that plaintiff was barred from recovery by his failure to show that the deposit was withheld under a claim of damage to the premises, defendant cites Applegate v. Inland Real Estate Corp. (1982), 109 Ill. App. 3d 986, 441 N.E.2d 379. There, the court held that the provision for recovery of double the deposit and for attorney fees did not come into play where a tenant had been constructively evicted and the landlord had held a deposit beyond the time frame of the statute claiming, unsuccessfully, that it was entitled to the deposit for unpaid rent.

Plaintiff maintains that the legislation was intended to have a broader impact than a strict reading would indicate. He claims the legislation is applicable to specified landlords who withhold security deposits for more than 45 days after the termination of a lease without giving any reason. His position is supported by dictum in Cross v. Mayer (1979), 73 Ill. App. 3d 726, 728, 392 N.E.2d 797, 799. His theory also finds some support in Applegate. There, the court said that the statute did “not appear to be intended by the legislature to apply other than where a part or all of the security deposit is retained to compensate for claimed property damage.” (Applegate v. Inland Real Estate Corp. (1982), 109 Ill. App. 3d 986, 991, 441 N.E.2d 379, 383.) However, the court then stated that in view of the failure of the legislature to provide for the situation where a constructive eviction had taken place “and the good faith though unjustifiable withholding of the security deposit for reasons other than property damage, we construe the statute as inapplicable.” (Emphasis added.) (109 Ill. App. 3d 986, 991, 441 N.E.2d 379, 383.) Footnote one to the opinion states as follows:

“While we have concluded that the statutory terms appear limited to situations where the lease term has expired and the lessor could only claim property damages as a reason to withhold part or all of the security deposit, we recognize that the provisions for double damages and attorney fees were added to discourage a withholding of deposits for baseless reasons.” (Emphasis added.) 109 Ill. App. 3d 986, 991, 441 N.E.2d 379, 383-84.

We agree with Applegate that the statute is not applicable to situations where there is a good faith dispute over the deposit for reasons other than a claim of property damage. However, considering the language of Applegate, the dictum of Cross and the indicated legislative intent to aid tenants when landlords unreasonably withhold deposits, we conclude that a landlord has some burden to come forward with some evidence of a good faith dispute for other reasons in order to avoid a presumption that the deposit is being withheld because of a claim of damages. When the court entered judgment here, no such evidence had been produced, and the court entered judgment without considering the nature of the dispute over the deposit.

We are reluctant to remand small claim cases for further hearing but must do so here. Defendant had no opportunity to put on evidence. We reverse and remand to give him an opportunity to do so. If, after hearing further evidence, and following the directions of this opinion, the court finds that the withholding arose from a dispute over damages, the court should enter judgment for the plaintiff. Otherwise it should enter judgment for the defendant.

Reversed and remanded.

MILLS, P.J., and MILLER, J., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS JAY BROWNELL, Defendant-Appellant.
    Second District
    No. 82 — 155
    Opinion filed April 11, 1984.

      G. Joseph Weller, John J. Barrett, and Paul J. Glaser, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Curtis Jay Brownell, was charged by information filed February 10, 1978, in Winnebago County with rape, attempted murder, aggravated kidnaping (based on rape), armed robbery and armed violence (based on rape). (Ill. Rev. Stat. 1977, ch. 38, pars. 11— 1, 8 — 4, 10 — 2, 18 — 2, 33A — 2.) The defendant, pursuant to negotiations, pleaded guilty to rape, attempted murder and aggravated kidnaping. He was sentenced to 50 years for rape, 25 years for aggravated kidnaping and 50 years for attempted murder, the attempted murder sentence to be consecutive to the other two sentences, which were to be concurrent, and all three sentences to be consecutive to sentences entered in a case against the defendant in Boone County.

The defendant’s motion to withdraw his guilty plea was denied. The defendant appealed, and this court reversed and vacated the judgments and sentences entered against him on those three offenses, and vacated and set aside the defendant’s guilty pleas thereto. The cause was then remanded to allow the defendant to plead anew and for further proceedings consistent with this court’s opinion. People v. Brownell (1980), 86 Ill. App. 3d 697.

On remand, after reinstatement of the remaining two charges which were dismissed pursuant to the defendant’s original plea agreement, the defendant waived a jury trial and after a bench trial held on November 23 and 24, 1981, the defendant was found guilty (and neither insane nor mentally ill) on all five charges. On February 4, 1982, the defendant was sentenced to 50 to 150 years for each of the five offenses, the sentence for attempted murder to be consecutive to those for the other four offenses, which were to be concurrent, and all five sentences to be “consecutive with any penalty that’s been imposed in Boone County under 78 — CF—37.”

Three issues are presented in this appeal: (1) whether the defendant’s inculpatory statements should have been suppressed; (2) whether the defendant’s sentences should be vacated and the cause remanded for resentencing because the murder sentence imposed in Boone County was vacated by the Illinois Supreme Court; and (3) whether the defendant’s conviction and sentence for armed violence must be vacated as being a lesser-included offense of rape.

A detailed recitation of the facts is not necessary for an understanding of the issues. The offenses charged were committed against a woman seven months pregnant whom the defendant abducted from a laundromat. He drove her to a secluded area, raped her, and then attempted to kill her by running over her with his car. Due to the amount of the snow on the ground, and her position in front of the car, she was not crushed and managed to run to safety at a nearby residence. Neither she nor her unborn baby sustained any critical or permanent injury.

I. Suppression Of Statement

The defendant claims his written statement was improperly admitted at trial because it was involuntary under the fifth and fourteenth amendments to the United States Constitution and under article I, section 10 of the Illinois Constitution. (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, sec. 10.) Further, he claims his statement was obtained in violation of his right to counsel under the sixth and fourteenth amendments to the United States Constitution, and under article I, section 8 of the Illinois Constitution. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, sec. 8.

Initially, the State asserts the defendant has waived consideration of this issue because it was not specifically included in his post-trial motion as required by section 116 — 1 of the Code of Criminal Procedure of 1963. Ill. Rev. Stat. 1981, ch. 38, par. 116 — 1.

The post-trial motion filed here indisputably was a “boiler-plate” motion; not only was it nonspecific as to the errors alleged, but twice it referred to errors occurring in the context of a “jury” trial when it was a bench trial. It has been held that failure to pursue one of the devices for challenging a confession — either by preliminary hearing on a motion to suppress or by appropriate objection thereto at the trial— ordinarily precludes consideration of the matter on appeal. (People v. Taylor (1965), 33 Ill. 2d 417, 421; People v. Calderon (1981), 101 Ill. App. 3d 469, 477.) Further, notwithstanding the general requirement that issues not raised in the defendant’s post-trial motion cannot be urged as a ground for reversal on appeal (People v. Pickett (1973), 54 Ill. 2d 280), the issue nevertheless may be preserved if the defendant objected at trial (People v. Moody (1979), 75 Ill. App. 3d 674), or, in general, if the issue has been brought to the trial court’s attention, the trial court has ruled on it, and the defendant would be prejudiced if the error is established as well founded. People v. Washington (1980), 85 Ill. App. 3d 522.

The defendant here did challenge the admissibility of the statement in his pretrial motion to suppress. The court denied the motion, and admitted the defendant’s written statement during the trial over the defendant’s timely objection thereto. Consequently, the court had two opportunities to rule on the matter, and was thereby substantially afforded the opportunity to prevent the potential error before trial and to reconsider the alleged error at trial. Thus, the essential purpose which a post-trial motion serves was met. See People v. Jackson (1981), 84 Ill. 2d 350, 359.

As a second argument for precluding review of this issue, the State argues the Illinois Supreme Court’s decision in People v. Brownell (1980), 79 Ill. 2d 508, should serve to support a rejection of the claim made here. In that appeal, the defendant also raised the issue of the admissibility of his confession. However, that case was concerned only with the defendant’s confession of the murder of Louise Betts in Boone County. The defendant’s statement regarding the victim of the offenses here was the last of a total of three statements which were given by the defendant to the police during the same time frame. As far as can be determined from reading the court’s decision in that case, the defendant challenged the admissibility of his statement on the same grounds he now asserts. The State points out no “constitutionally significant” facts occurred between the time the defendant gave his statement in that case and the time he made the instant statement which would merit any further review of the issue.

The defendant, however, does not concede that the decision in People v. Brownell (1980), 79 Ill. 2d 508, is dispositive here. He points out that decision omits any discussion of several aspects of the case which are part of the record here. The first aspect he points to was a remark by prosecutor Gemignani that the defendant’s attorneys, Messrs. Gaziano and Pumilia, could “cool their heels awhile” when he was informed they wished to see the defendant. Further, after that time, when the defendant was brought downstairs, he was informed his wife and his attorney were there. When the defendant hesitated as to whom to see first, defense counsel began yelling at the defendant through a glass partition in the attorneys’ conference room that the defendant should talk to him first, and the defendant did talk with him first.

Another aspect the defendant contends was not discussed in that prior opinion is the “new evidence” that the defendant’s clergyman, Father Denson, had been asked by the police officer who let the priest in to see the defendant, to ask the defendant “whether or not he will talk to us [the police].”

Insofar as the first aspect raised by the defendant is concerned, the record of the first suppression hearing in this case shows the circumstance of a heated argument occurring between the defendant’s attorneys and the prosecutor, which prompted the “cool their heels” remark. A stipulation between defense attorney Pumilia and the prosecutor, Gemignani, was related to the court during the first suppression hearing. Fairly construed, the stipulation indicated the prosecutor had no intention of depriving the defendant of his right to see counsel. Pumilia stipulated that Gemignani had no knowledge of the coincidence of events (i.e., Pumilia and Gaziano’s request to see the defendant, and the presence of the defendant’s wife in the visitors’ room), and that there was no attempt on Gemignani’s part to have the defendant see his wife before his attorney. Just prior to the stipulation, the record shows there was a denial by Detective Arbisi on redirect examination that he stated to the defendant “either [you can see] your wife or your lawyer.” (Emphasis added.) Consequently, it does not appear that incident, even if it had been raised in the prior appeal of the Betts murder, would have had any effect on the court’s decision as to the voluntariness of the defendant’s statement there. The defendant here is bound by his attorneys’ stipulation during the first suppression hearing that those actions of the prosecutor did not amount to an attempt to keep the defendant from consulting with his attorney and he will not be allowed to argue those circumstances now in support of his appeal.

Neither party argues specifically whether the supreme court’s Brownell decision may be construed as res judicata, or collateral estoppel, insofar as it may relate to this case. There is no identity in the causes of action between that case and this one. The records of the suppression hearing here are limited to the subject of the offenses committed against the victim here; therefore, we assume a separate suppression hearing was held with regard to the defendant’s confession of the Betts murder. This court has not been provided with the report of proceedings of the Betts suppression hearing, or with a copy of the briefs filed with the supreme court in that cause. Consequently, it is not entirely clear what evidence the supreme court had available to it when it decided the issue presented there. In any case, it does not appear that the supreme court’s Brownell decision would be res judicata as to the instant case, nor would collateral estoppel be applicable since the issue in that case was the voluntariness of the Betts confession, not the confession in the instant cause.

The doctrines of waiver and collateral estoppel do arise here, however, within the context of the case itself. When this case was returned to the circuit court to allow the defendant to plead anew and for further proceedings (People v. Brownell (1980), 86 Ill. App. 3d 697), the defendant filed the same motion to suppress statements as he had in the first proceeding. The court declined to reconsider the motions as they had previously been ruled upon. (Cf. People v. Webb (1982), 109 Ill. App. 3d 328 (doctrine of law of the case precluded the trial court from holding de novo suppression hearing when order suppressing evidence had been specifically reversed upon the State’s interlocutory appeal and the cause remanded for “further proceedings”).) Subsequently, defense counsel learned while talking with the defendant’s appellate counsel on the Betts conviction that when Father Denson arrived at the jail pursuant to the defendant’s request, the police asked him to ask the defendant whether or not he would talk with them. Defense counsel, although he was aware at the first suppression hearing that the defendant spoke with Father Denson, stated he was unaware of what he considered was the improper police request made to Father Denson. Accordingly, counsel sought reconsideration of the motion to suppression the basis of this “new evidence.”

The circuit court permitted a hearing to be held as to this new evidence, but ultimately denied the defendant’s motion to reconsider. In ruling, the court stated it found the defendant’s statement was not the result of coercion, and that the defendant — fully aware of attorney Pumilia’s advice that he not speak to the officers — voluntarily did so anyway. The court also expressed uncertainty about having heard the purported new evidence, since the court’s review of the prior suppression hearing showed that both sides were aware of Father Denson’s visit with the defendant at the time of the first hearing. Defense counsel admitted he did know Father Denson was there, but that “it just never occurred” to him to ask about his conversation with the defendant since it was a privileged communication.

The defendant’s motion to withdraw his guilty plea prior to taking the first appeal of his convictions in this case did not specify any error in the court’s denial of his first motion to suppress. Supreme Court Rule 604(d) specifically provides that “[ujpon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived.” Supreme Court Rule 604(d), as amended August 9, 1983, effective October 1, 1983; People v. McKean (1981), 94 Illl. App. 3d 502.

In People v. Savory (1982), 105 Ill. App. 3d 1023, 1027, it was stated:

“It is true that these doctrines [res judicata, law of the case, waiver and collateral estoppel] bar relitigation of an unappealed order denying a motion to suppress, but they only do so in the absence of exceptional circumstances. (People v. Armstrong (1973), 56 Ill. 2d 159, 161, 306 N.E.2d 14, 15; People v. Eckmann (1978), 60 Ill. App. 3d 300, 302, 376 N.E.2d 751, 752.)”

The “exceptional circumstances” found there which allowed relitigation of the issue was that the defendant was seeking to suppress evidence of a different day’s conflicting statements which statements were not relied upon by the prosecution in the first trial, hence, any attempt to appeal the matter in that first appeal would have been considered moot. In People v. Hopkins (1972), 52 Ill. 2d 1, 4, there is an indication of what also might be considered “exceptional” circumstances:

“The notion of mutuality, which so largely characterizes the use of the doctrine [of collateral estoppel] in civil cases, cannot be given full play in criminal cases. Moreover, a defendant, unlike the prosecution, is not allowed an immediate appeal from an adverse ruling upon a motion to suppress. He cannot review that ruling until after he has been convicted and sentenced. And for a variety of reasons he might not wish to appeal, or as in the case of an acquittal at the first trial, he might not be able to do so.”

In its decision in People v. Eckmann (1978), 60 Ill. App. 3d 300, 302, this court stated:

“In the absence of additional evidence or exceptional circumstances, the doctrine of collateral estoppel bars the relitigation of an order sustaining or denying a pretrial motion to suppress evidence. People v. Armstrong, 56 Ill. 2d 159, 161 (1973); People v. Holland, 56 Ill. 2d 318, 321 (1974). See also People v. Hopkins 52 Ill. 2d 1, 4 (1972); People v. Grant, 38 Ill. App. 3d 62, 69 (1976).”

The record here does not show that an exceptional circumstance exists. The defendant failed to include the issue initially in his motion to withdraw his guilty plea, thereby waiving it under the provisions of Supreme Court Rule 604(d). Further, the fact of the police request to Father Denson is not — in our opinion — the type of “additional” evidence which had “become available” after the first hearing which would allow relitigation of the issue. Under the circumstances, the trial court correctly denied the defendant’s motion to reconsider his motion to suppress on the basis of this procedural ground alone.

On the merits, the defendant contends the tactics employed by the State in this case — “asking [the defendant] to talk without his lawyer, arranging for him to meet with his wife before allowing him to meet with his lawyer, offering to forego the death penalty in the Betts murder case, again suggesting that the [defendant] meet with the police without his lawyer, and finally, requesting the defendant’s priest to act on their behalf” — amounted to interrogation or its functional equivalent under Rhode Island v. Innis (1980), 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682. As a consequence of this, he claims, his “right to cut off questioning” was not “scrupulously honored” (Michigan v. Mosley (1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321); thus, his fifth amendment rights were violated.

Defendant additionally claims the State’s course of conduct here was calculated to interfere with his sixth amendment right to the assistance of counsel due to the State’s repeated efforts to get him to talk without his attorney present, including one instance in which Detective Arbisi advised the defendant that he could decide to talk with the police at any time with or without his counsel present. Defendant notes the right to the assistance of counsel is “of first importance in our administration of criminal justice” (People v. Knippenberg (1977), 66 Ill. 2d 276, 288), and the government may not deliberately elicit an incriminating statement from a suspect who is under indictment and represented by counsel. United States v. Henry (1980), 447 U.S. 264, 65 L. Ed. 2d 115, 100 S. Ct. 2183.

After clarifying several misstatements made by the defendant concerning the record, the State responds that a part of the record passed over by the defendant in his argument shows that at about 2:05 a.m. on April 2, 1978, the defendant told the jailer that he wanted to talk to the police. This occurred about one hour after he had been placed in an isolation cell at 1 a.m. on April 2 due to his earlier suicide threat. Father Denson’s visit with the defendant took place about 11 or 11:30 p.m. on April 1, and the defendant spoke with his attorney between the end of that visit and 1 a.m. the next morning. When Detective Arbisi and Sergeant Packard were summoned, they advised the defendant of his Miranda rights, and he signed a written waiver. He also specifically rejected the officers’ offer to call his attorney, indicating that his attorney would stop him from saying the things he wanted to say.

These facts support the conclusion that it was the defendant himself who reinitiated the dialogue with the police, and that his statement was not the result of alleged improper or repeated police interrogation.

In a similar case, People v. Morgan (1977), 67 Ill. 2d 1, the defendant’s claim that his fifth amendment right to counsel had been violated was rejected because the court found the defendant himself had initiated the dialogue, and had stated that he did not want an attorney because he might get him confused. Thus, the defendant’s intent to waive his previously asserted right to counsel was evident. The State points out that case is completely consistent with the seminal case on this issue, Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880. That case held that the State had not met its heavy burden of proving a valid waiver of the defendant’s rights where the defendant’s statement resulted from police-initiated questioning after the defendant’s fifth amendment right to counsel had been asserted, but not honored, prior to the police-initiated questioning, even though the defendant had again been advised of his rights prior to giving the statement.

The State additionally contends the facts here also show a valid waiver by the defendant of his previously asserted sixth amendment right to counsel when he refused the offer to have counsel present, and indicated his attorney would try to stop him from saying what he wanted to say. In support, the State cites People v. Aldridge (1980), 79 Ill. 2d 87, which was decided under the sixth amendment right-to-counsel principle. In that case, the court upheld as valid the defendant’s waiver of his right to counsel because the facts showed he intentionally relinquished a right which was known to him. There the defense counsel had sought to enjoin any questioning of his client in his absence. The court denied the injunction, noting that the officers had been sufficiently apprised that the defendant had an attorney and did not want to be questioned without his assistance. In this case, defense counsel, in the presence of defendant, Detective Arbisi, and Sergeant Rollins, told the defendant that he did not want him to talk with the police. Nevertheless, approximately one hour later, the defendant asked to speak with the police, and declined the offer of the police to contact his lawyer. As the Aldridge court observed, quoting Watson v. State (1977), 35 Md. App. 381, 386, 370 A.2d 1149, 1152, “ ‘The right to have counsel present during an interrogation is a right of the defendant and not a right of defendant’s counsel.’ ” (People v. Aldridge (1980), 79 Ill. 2d 87, 92.) Thus, as in Aldridge, the facts here show the defendant intentionally relinquished a right which was known to him.

The various police actions complained of here did not amount to “interrogation” or its functional equivalent as discussed in Rhode Island v. Innis (1980), 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682. In none of the instances cited was the defendant actually asked a question which would have been “reasonably likely to elicit an incriminating response.” Nor, in fact, was any incriminating response — either inculpatory or exculpatory — given by the defendant until at least an hour after his last 1 a.m. contact with his attorney, and after defendant himself expressly stated, on his own initiative, that he wished to talk to the police without his counsel present.

The defendant cites in support of his sixth amendment claim United States v. Henry (1980), 447 U.S. 264, 65 L. Ed. 2d 115, 100 S. Ct. 2183, and United States v. Morrison (3d Cir. 1979), 602 E2d 529, rev’d on other grounds (1981), 449 U.S. 361, 66 L. Ed. 2d564, 101 S. Ct. 665. We conclude that those cases are distinguishable. In Morri son, the Court of Appeals dismissed an indictment against the defendant where, although they were aware the defendant was represented by counsel, agents of the Drug Enforcement Agency effected a wilful and unjustified interference with the defendant’s sixth amendment right to counsel. The agents inter alia repeatedly made “surprise” visits at the defendant’s house and questioned her about various matters including her drug source; told her she was facing a stiff jail term; denigrated the competency of her chosen counsel and indicated that his charges for legal services were excessive. The court concluded the agents’ actions exhibited a pattern of conduct calculated to intrude upon and destroy the attorney-client relationship. The instances cited at bar, however, do not amount to such a “pattern.” In Henry, government agents enlisted the aid of, and paid, an informant incarcerated in the same cell block with the defendant for relating to them incriminating statements made by the defendant, for which statements the informant had been instructed to be on the alert. The court there found the defendant’s sixth amendment right to counsel had been violated by the government-created situation which it believed amounted to deliberate elicitation of incriminating statements from the defendant without the assistance of counsel. The record here fails to show any such subterfuge either existed or was intentionally created.

Accordingly, we conclude the court did not err in denying the defendant’s motion to suppress and the defendant’s written statement was properly admitted at trial.

II. Resentencing

The defendant contends that his sentences cannot stand because the trial court ordered the sentences to be served consecutively to “any penalty that’s imposed in Boone County under 78 — CF—37.” That case, noted above, was the Louise Betts murder case. He asserts that the court, in imposing the sentence, considered the fact that he had received the death penalty in Boone County for the murder. He notes that penalty was recently vacated by the Illinois Supreme Court (People v. Brownell (1983), 96 Ill. 2d 167), and argues, therefore, that he is entitled to a new sentencing hearing.

In primary support, he cites People v. Buckley (1977), 44 Ill. App. 3d 1038, for the proposition that a defendant is entitled to a new sentencing hearing where a prior conviction and sentence which was relied upon by the trial court in imposing sentence has been reversed. In Buckley, the sentence imposed on the defendant for robbery which was to be served concurrently with a sentence imposed on an earlier indecent liberties conviction, was vacated and the cause remanded for resentencing when the indecent liberties conviction was reversed and remanded for a new trial. The appellate court noted that the indecent liberties conviction was included in the defendant’s presentence report and obviously was considered by the court. In view of the reversal of that conviction, and even though the sentence as imposed may have been warranted in view of the other information in the presentence report, the court’s opinion was that the robbery sentence should be reconsidered.

Buckley is readily distinguishable. In this case, the defendant’s earlier murder conviction was not reversed; only the death penalty sentence was vacated. As the State notes, the supreme court affirmed the defendant’s murder conviction in 1980. (People v. Brownell (1980), 79 Ill. 2d 508.) The Buckley court relied upon the authority of United States v. Tucker (1972), 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589, and People v. Chellew (1974), 20 Ill. App. 3d 963. The “real question” in Tucker was whether the sentence imposed would have been different if the sentencing judge had known that two of the defendant’s prior convictions had been unconstitutionally obtained. United States v. Tucker (1972), 404 U.S. 443, 448, 30 L. Ed. 2d 592, 597, 92 S. Ct. 589, 592; see also People v. Merneigh (1981), 101 Ill. App. 3d 536.

Here, however, the sentencing judge was aware the defendant had been convicted of murder and that the death penalty had been imposed. The later vacation of the penalty did not change the fact of the conviction, nor does it appear the court specifically was influenced in any way by the sentence. After imposing sentence for the instant offenses, and despite the knowledge the death penalty had been imposed in the earlier case, the court nevertheless stated the instant sentences would run consecutively to the Boone County sentences. The court obviously was cognizant that a death sentence is subject to automatic review by the Supreme Court. Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill. 2d. R. 603; Ill. Rev. Stat. 1981, ch. 38, par. 9 — l(i).

Another case relied upon by the defendant in support of his position here is also distinguishable. In People v. Cross (1981), 100 Ill. App. 3d 83, the court in imposing sentence noted the victim of a battery of which the defendant had been earlier convicted had died, but stated the court “ '*** will not take into account the charges which were not proved.’ ” (100 Ill. App. 3d 83, 91.) The Cross court felt the judge’s comments were ambiguous and uncertain, and it was impossible within his phraseology to determine what weight he had given the death noted. The court here, however, did not consider any charges of which the defendant had not already been convicted, whereas in Cross, the defendant had been convicted of battery, not murder, and as to that latter offense he was “ '*** “clothed in a presumption of innocence.” ***’ ” 100 Ill. App. 3d 83, 92, quoting People v. Gant (1974), 18 Ill. App. 3d 61.

The fact of the defendant’s conviction for murder was not altered by the supreme court’s vacation of the death penalty. As such, it was a part of the defendant’s “history of prior criminal activity,” a properly considered factor in aggravation of his sentences for the instant offenses. Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2.

The defendant asserts the State’s concession with regard to Issue III creates an additional basis for the vacation of the remaining sentences and remandment for a resentencing hearing. In support, he cites People v. Young (1983), 115 Ill. App. 3d 455, People v. Reynolds (1983), 116 Ill. App. 3d 328, and People v. Alejos (1983), 97 Ill. 2d 502. Each of those cases involved remand for resentencing after a prior or contemporaneous conviction which was considered by the court in imposing sentence was either vacated or reversed.

In a motion taken with this case, the State moved to strike this argument of the defendant as being raised for the first time in a reply brief, contrary to the provisions of Supreme Court Rule 341(e)(7) (87 Ill. 2d R. 341(e)(7).

The defendant responds that his argument does not “raise a new issue” but is a proper reply to an argument presented in the brief of the appellee (i.e., the State’s concession of Issue III in conformance with Supreme Court Rule 341(g) (87 Ill. 2d R. 341(g))).

It is well settled that issues raised for the first time in the appellant’s reply brief shall be deemed waived on appeal. (87 Ill. 2d R. 341(e)(7).) However, the rule is an admonition to the parties and not a jurisdictional bar. (Hux v. Raben (1967), 38 Ill. 2d 223.) Issues first raised in a reply brief may be addressed if a just result dictates consideration of all the issues. People v. Thiem (1980), 82 Ill. App. 3d 956, 959.

Although the remand for resentencing appears to be a “new issue,” the defendant arguably could not have anticipated the State’s concession of the underlying issue. Thus, the issue may reasonably be viewed as having been properly raised in the reply brief since “it grows out of and is responsive to” the State’s concession. Cf. People v. Maxwell (1980), 89 Ill. App. 3d 1101, 1104 (where the court allowed the defendant’s motion to add the issue of defense counsel’s competency (for failing to offer jury instructions on a lesser-included offense) with the admonition that the issue should have been raised in his reply brief because “it grows out of and is responsive to the waiver argument made by the State in its appellee’s brief”).

Accordingly, the issue will not be stricken as waived.

A remand for resentencing due to the vacation of the defendant’s armed violence conviction and sentence is not necessary. The defendant’s citation to People v. Young (1983), 115 Ill. App. 3d 455, provides only minimum support for his position, since no reason or citation of authority was given there for the court’s remand for resentencing. People v. Reynolds (1983), 116 Ill. App. 3d 328, also cited by the defendant, is factually distinguishable. There the court remanded for resentencing because in imposing an extended-term sentence, the trial court considered a prior escape conviction of the defendant which was later reversed. The final case cited by the defendant, People v. Alejos (1983), 97 Ill. 2d 502, likewise fails to support his position on this issue. In considering there whether to remand the cause for re-sentencing after reversing the defendant’s armed violence conviction (which was predicated on voluntary manslaughter and which the supreme court held was contrary to the legislative intent that armed violence not apply to voluntary-manslaughter since it is not a premeditated felony), the supreme court declined to decide whether the standard for remand for resentencing is either (a) the inability to determine affirmatively from the record whether the sentence was influenced by the consideration of improper factors, or (b) whether the defendant must come forward with convincing evidence that the judge or jury was so influenced. (97 Ill. 2d 502, 513.) It declined to do so because the record before it satisfied the latter standard, due to the emphasis the sentencing judge placed upon the defendant’s use of a gun and the likely influence that fact exerted on the sentence for voluntary manslaughter.

Under either standard as noted in Alejos, review of the sentencing hearing here makes it clear the court was not improperly influenced by the armed violence conviction in imposing sentences for the other convictions. The court stated:

“I’m going to impose a sentence in the Department of Corrections for the offense of rape, a Class 1 felony, for a period of not less than 50 years nor more than 150 years; under the aggravated kidnapping, a minimum sentence of from 50 to 150 years — an indeterminate sentence of from 50 to 150 years; for armed violence wherein the underlying charge was the rape offense, from 50 to 150 years. And those three would run concurrent.
For the offense of attempt murder, I’m going to impose a sentence of not less than 50 nor more than 150 years. There is no question in the Court’s mind that these are separate offenses. The — the armed violence, the rape, the aggravated kidnapping were all as a result of one; and that’s why I’m considering that for concurrent sentences and imposing a concurrent sentence. The attempt murder by the evidence was the intent that was formed at some time. It certainly manifested itself after the other offenses had been committed and justifies a consecutive sentence to those. The attempt murder is consecutive to the — the penalty that I imposed on the rape, the aggravated kidnapping and the armed violence.
Under the armed robbery offense — and again, I’m going to impose a sentence of from 50 to 150. I am going to make that concurrent with the other offenses. I — it would run concurrent with the rape, the aggravated kidnapping and the armed violence.
And then there will be the consecutive sentence imposed for the attempt murder — from 50 to 150 years. I’ll impose no fine. These sentences are to run consecutive with any penalty that’s been imposed in Boone County under 78 — CF—37.”

In our opinion, it is clear the court separately considered each offense. Further, its acknowledgement that the armed violence, the rape, and the aggravated kidnaping were “all as a result of one” and, therefore, the sentences would be concurrent, indicates to us that the length of the sentences imposed for the defendant’s other convictions was not affected by the armed violence conviction. A similar result was reached in previous cases which have addressed this issue. See, e.g., People v. Griffin (1983), 117 Ill. App. 3d 177, 184; People v. Pruden (1982), 110 Ill. App. 3d 250, 254-55; People v. Jones (1982), 108 Ill. App. 3d 880, 891; People v. Kosanovich (1979), 69 Ill. App. 3d 748, 750.

In sum, we conclude remand for resentencing is not warranted.

III. Vacation Of Armed Violence Conviction

The State concedes on the authority of People v. Mormon (1982), 92 Ill. 2d 268, that the defendant’s conviction for armed violence, based on the offense of rape, must be vacated as being a lesser-included offense of rape. We concur. The Mormon court, finding indistinguishable its decision in People v. Donaldson (1982), 91 Ill. 2d 164, vacated the defendant’s conviction for armed violence based on rape. The court determined that when a weapon is used to overcome the will of a rape victim, the use of the weapon is an element of “force” specified in the rape statute and the defendant, having been convicted of rape, cannot also be convicted of armed violence.

Because the State concedes this issue, the defendant asserts in his reply brief that the State’s request that “costs be taxed accordingly” must be denied. He cites in support People v. Smith (1983), 113 Ill. App. 3d 917.

Recovery of costs after affirmance or reversal on appeal is covered by section 5 — 120 of the Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 5 — 120.) The statute (formerly codified as Ill. Rev. Stat. 1981, ch. 33, par. 22) makes no distinction between civil or criminal cases. (People v. Nicholls (1977), 45 Ill. App. 3d 312, 316.) Further, it is notable that former section 24 of that chapter, which provided for apportionment of the costs between the parties in the discretion of the court when there was a partial affirmance or a partial reversal, was repealed in 1976. Ill. Rev. Stat. 1975, ch. 33, par. 24.

The Smith case cited by the defendant, supports his contention here. In that case, the court denied the State’s request for costs since the defendant prevailed on one of the issues raised on appeal. Accordingly, since the defendant here has prevailed on one of the issues raised on appeal, the State’s request for costs is denied.

The judgment and sentence of the circuit court of Winnebago County for the offense of armed violence is vacated; the judgments and sentences for the offenses of rape, attempted murder, aggravated kidnaping, and armed robbery are affirmed. The State’s motions to strike and for costs are denied.

Judgments affirmed in part and vacated in part.

LINDBERG and VAN DEUSEN, JJ., concur.