author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOYCE ECKHARDT, Defendant-Appellant.
    Second District
    No. 2—83—0538
    Opinion filed June 13, 1984.
    Rehearing denied July 20, 1984.
    G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    T. Jordan Gallagher, State’s Attorney, of Sycamore (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

After a jury trial at which defendant raised the defense of insanity, she was convicted of the murder of her husband and subsequently sentenced to a term of 20 years’ imprisonment. The central issue in the case was whether the defendant was insane at the time she shot and killed her husband. The sanity issue was heatedly contested.

Defendant has raised a number of issues which were not properly preserved for review on appeal and which, after careful consideration, we do not find merit review under the plain error rule (87 Ill. 2d R. 615(a)). Defendant also claims error arising from a comment by the prosecutor in his closing argument that finding defendant insane would be giving her a “pass.” The prosecutor’s comment could be considered improper because it implied that the defendant would be unconditionally released if found innocent by reason of insanity. However, the court sustained an objection to the remark, and it was not so seriously prejudicial as to deprive defendant of a fair trial (see People v. Brown (1982), 104 Ill. App. 3d 1110, 1120-21).

We do find merit, however, in the contention of defendant that the State misstated the law on insanity in rebuttal argument and thereby deprived defendant of a fair trial. Defendant first points to statements by the prosecutor to the effect that to be delusional on the night of the offense would require “handcuffs,” the “straight jacket,” and the “looney bin.” The prosecutor also made the following statement in his rebuttal argument:

“Mr. Mays came up with a new theory. You’ve all heard of temporary insanity. Well, you heard from him, instant insanity. The insanity started at the time that she quit conforming her conduct to the requirements of the law, right after she turned off the gas. And within five minutes after she’d taken the gun and killed him, she could conform again. She was legally insane, under his theory, for less than five minutes. That’s not even temporary insanity.
And, ladies and gentlemen, I would submit to you under the laws of the State of Illinois you have to have a mental disease, a continuing mental disease, that causes you to lack the ability, the substantial ability, to appreciate the criminality of your conduct, or to conform your conduct to the requirements of the law. Not for an instant. Not for five minutes. But it’s a continuing thing.
If you can’t conform your conduct to the requirements of the law, you’re going to be running around violating all kinds of law until somebody gets you and locks you up in a looney bin.”

As defendant maintains, this is a misstatement of the law as to the definition of insanity. Section 6 — 2 of the Criminal Code of 1961 provides in relevant part as follows:

“Insanity, (a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” (Ill. Rev. Stat. 1981, ch. 38, par. 6 — 2(a).)

The insanity defense does not require the type of uncontrollable behavior as a continuing condition suggested by the prosecutor’s comments.

It is well established that a prosecutor’s misstatement of the law in closing argument can be grounds for reversal and that included in this restriction are statements that, in effect, distort the burden of proof by suggesting incorrectly what the jury must find in order to reach a certain verdict. (People v. Crossno (1981), 93 Ill. App. 3d 808, 821.) In some cases, considering the circumstances surrounding the misstatement of the law, it may be deemed harmless error. (E.g., People v. Duckworth (1981), 98 Ill. App. 3d 1034, 1039.) In other cases, a serious misstatement of the law may require reversal under the circumstances of the case, including the closeness of evidence, even where, as here, defendant failed to object. (E.g., People v. Johnson (1981), 102 Ill. App. 3d 122, 128-29; People v. Crossno (1981), 93 Ill. App. 3d 808, 824.) In fact, defense counsel’s failure to object to this misstatement of the law in the present case could well have contributed to the magnitude of error by leaving the jury with the impression that the prosecutor’s comments concerning the law of Illinois on the insanity defense were correct.

On the other hand, the jury was told prior to the commencement of voir dire that they must follow the instructions as to the law of the case that the judge would give. At the conclusion of the case, they were instructed by the judge that closing arguments are not evidence, they were given the proper definitional instruction on insanity, and they were instructed that the State had to prove defendant sane at the time of the offense. In the prosecutor’s rebuttal argument, he referred several times to the fact that defendant’s sanity at the time of the offense was at issue, and the evidence presented at trial, including the opinions of both lay and expert witnesses, focused on defendant’s sanity at the critical moment.

Nevertheless, as defendant argues, the evidence did not overwhelmingly demonstrate that she was sane at the time the offense was committed. There was lay and expert testimony on both sides of the issue. Further, defendant’s sanity at the time of the offense was, to a great extent, inferred from her behavior before and after the event. The prosecutor’s misstatement of the law directly related to defendant’s behavior, and, though the jury was informed that sanity at the time of the offense was the critical issue, the improper State comments could very well have misled the jury in making the necessary inferences as to her sanity at the time of the offense based on her behavior. That is to say the jury may have believed that inability to conform her conduct to the requirements of the law at the time of the offense had to be part of an inability to do so in a period extending beyond that of the actual commission of the offense and may have considered that if defendant was not behaving as the prosecutor had described and was not suffering from a mental disease of a continuing nature that had manifested itself in other criminal or antisocial acts, then she was not insane at the time of the offense.

In determining whether a prosecuting attorney’s argument to a jury is prejudicial, reference must be made to the context of the language, its relation to the evidence and the effect of the argument on the rights of the accused to a fair and impartial trial. (People v. Smith (1972), 6 Ill. App. 3d 259, 263.) We cannot say that the jury here would not have reached a different verdict without the prosecutor’s misstatement of the law of Illinois regarding the insanity defense. Our supreme court has held that errors not properly preserved for review may be considered where the evidence is closely balanced or if the error is of such a magnitude that the accused is denied a fair and impartial trial. (People v. Szabo (1983), 94 Ill. 2d 327, 354-55.) In this case there was substantial evidence on both sides of the insanity issue. The prosecutor’s statements constituted error that affected defendant’s substantial rights and are considered in this appeal under the “plain error” rule. (87 Ill. 2d R. 615(a); see People v. Crossno (1981), 93 Ill. App. 3d 808, 824.) For the same reason, the error cannot be ruled harmless on the record. 93 Ill. App. 3d 808, 825.

For the reasons stated herein, the trial court judgment is reversed, and the cause is remanded for a new trial.

Reversed and remanded for a new trial.

SEIDENFELD, P.J., and REINHARD, J., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT JUSTICE STOUDER,

license: Public Domain

text:
    JERRY REEDER et al., d/b/a Maryland Fried Chicken, Plaintiffs-Appellants, v. OLD OAK TOWN CENTER, a/k/a Old Oak General Partnership, et al., Defendants-Appellees.
    Third District
    No. 3—83—0509
    Opinion filed June 14, 1984.
    STOUDER, J., dissenting.
    Alan R. Bruggeman, of Condon & Bruggeman, of New Lenox, for appellants.

      Patrick J. Custardo, of Chicago, for appellee Old Oak Town Center.
    D. Kendall Griffith, Todd R. Hogan, and John R. Williamson, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee Alexander Lumber Co.
    John J. McGarry, of Stefanich, McGarry & Wols., Ltd., of Joliet, for appellee James B. Clarage & Associates.
    James R. Fabrizio, of Garrison, Fabrizio & Hanson, of Joliet, for appellee Pasch & Sons Construction Co.
   JUSTICE SCOTT

delivered the opinion of the court:

The plaintiffs, Jerry and Carol Reeder, operators of a Maryland Fried Chicken restaurant in Homer Township of Will County, Illinois, brought suit in the circuit court of Will County seeking to recover from numerous defendants for economic damages to their restaurant business. The circuit court of Will County, in reliance on Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, dismissed all but one of the actions filed by the plaintiffs. The final action, one in constructive eviction, was tried in the Will County court and resulted in a directed verdict being entered for the defendant Old Oak General Partnership. The plaintiffs, Jerry and Carol Reeder, appeal the orders of the circuit court of Will County, urging that the circuit court’s decisions were contrary to law.

The Maryland Fried Chicken restaurant operated by the plaintiffs was located in a detached part of the Old Oak Town Center, a new shopping center located at 143rd Street and Golden Oak Drive. The plaintiffs leased the restaurant space for an initial period of five years followed by successive options to renew for five years per option. The lease was dated March 7, 1981, and the plaintiffs took possession of the premises and began operating their business in June of 1981.

The leased building was constructed with the use of fir and pine posts which were treated with a preservative containing 5% pentachlorephenol. These posts were used in construction so that they were visible and exposed on the interior of the restaurant. According to the testimony submitted as a part of plaintiffs’ case, the treated beams gave off an offensive odor smelling like insecticide. Further, the pentachlorephenol leaked out of the wood, discolored the beams, and dripped onto the floor and tables. Attempts were made to correct this problem by washing the beams with a high pressure pump and bleach and by sealing the beams with polyurethane paint, but to no avail. Again, according to plaintiffs’ evidence, many complaints were received concerning the offensive odor which permeated the restaurant. This led to the plaintiffs’ decision to close the restaurant in January of 1982, just six months after opening.

The plaintiffs responded two months later with a lawsuit filed in the circuit court of Will County, in which they alleged that the chemical treatment of the beams caused the emission of an obnoxious odor which rendered the rented space totally unsuitable for use as a restaurant. The complaint named as defendants Old Oak Town Center, the landlord; James B. Clarage & Associates, the architect; Pasch & Sons Construction Company, the builder; and Alexander Lumber Company, the material supplier. The damages for which the plaintiffs sought recovery were economic damages, that is, lost profits.

The actions against the architect and the builder were based upon a negligence theory. Both of these actions were dismissed in reliance on Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, a case which denies recovery for economic loss in certain actions sounding in tort. Negligence theories against the landlord and the material supplier were similarly dismissed. Two additional actions against the material supplier, one based on a theory of strict liability and the other on the theory of warranty of fitness for a particular purpose, were also dismissed, the first mentioned because of the rule in the Moorman case and the second mentioned because the circuit court found a lack of privity between the plaintiffs and the material supplier. In each case, where the plaintiffs’ action was dismissed, the circuit court granted leave to amend the pleadings, an option the plaintiffs failed to exercise. The court denied the defendants’ request to make the orders of dismissal final and appealable. Subsequently, at the close of plaintiffs’ case, the circuit court directed verdicts for the builder and the material supplier based on the dismissal order previously entered.

One action, a single count against the landlord based on the theory of constructive eviction, was tried before a Will County jury. At the same time, the defendant landlord presented a counterclaim for unpaid rent. At the conclusion of the case, the circuit court directed a verdict for the landlord on the constructive eviction issue, holding that the damages proved by the plaintiffs were too speculative. The counterclaim for unpaid rent was submitted to the jury, which rendered a verdict for the plaintiffs, based on their affirmative defense of constructive eviction to the counterclaim for rent.

A post-trial motion filed by the plaintiffs was denied on July 8, 1983. A timely notice of appeal was filed on August 4, 1983. This notice of appeal expressly specified that relief was sought from an order of the trial court entered on February 25, 1983, dismissing certain defendants, from certain orders entered during the trial of the case against the remaining defendant, and from the denial of the post-trial motion entered by the court on July 8, 1983. No relief was sought from an order of the trial court dated April 13, 1983, which dismissed the action against the defendant architect.

Leave to file an amended notice of appeal was sought in this court by the plaintiffs. That leave was granted over the objections of the defendant architect, and an amended notice of appeal was filed November 2, 1983, specifically requesting relief from the April 13, 1983, order. The defendant architect renewed his objection to our granting of leave with a motion filed November 29, 1983. That motion was taken with the case for determination.

The timely filing of a notice to appeal is jurisdictional. (Hale v. Ault (1974), 24 Ill. App. 3d 10, 321 N.E.2d 151.) Where an appellant has failed to confer jurisdiction on this court by properly filing a notice of appeal, we are obliged to dismiss the action.

The rules promulgated by the supreme court provide for the filing of an amended notice of appeal. (94 Ill. 2d R. 303(c)(4).) However, an amendment specifying a part of the judgment not specified in the original notice of appeal may be made only within 30 days after expiration of the time for filing the original notice of appeal. (94 Ill. 2d R. 303(a)(3).)

“After the expiration of the initial 30-day period for filing notice of appeal, and the additional 30-day safety-valve period allowed by Supreme Court Rule 303(e) [citation], the appellate court is without jurisdiction to permit further amendments of the notice of appeal.” (Brenkman v. Belmont Marketing, Inc. (1980), 87 Ill. App. 3d 1060, 1062-63, 410 N.E.2d 500, 503.)

As the amended notice of appeal in the instant case was not filed within the time periods provided, we are compelled to agree with the defendant architect that leave to file the amended notice was improvidently granted. Accordingly, we believe the appeal against this defendant must be dismissed.

A primary issue raised by the plaintiffs on this appeal concerns the circuit court’s reliance on the Moorman decision in dismissing the actions sounding in tort directed against the defendant builder and the defendant material supplier. Subsequent to the circuit court’s decision, the Moorman rule was clarified and expanded upon with the decision in Ferentchak v. Village of Frankfort (1984), 121 Ill. App. 3d 599, 459 N.E.2d 1085. In that case it was determined that:

“Moorman and subsequent cases *** establish that economic losses are not recoverable in tort against a defendant where the injuries caused by that defendant relate directly to plaintiff’s reasonable commercial expectations respecting the defendant’s actions and where plaintiff has or had appropriate and adequate contract or warranty actions as against the defendant for such harm. In such circumstances, and where the injury is to the item supplied or produced by that defendant, contractual benefit-of-bargain expectations damages are the appropriate measure of recovery. However, the same economic losses are recoverable in tort, as against defendants who by their own negligence, as measured by traditional tort analysis, have caused the injuries and against whom no contract or warranty recovery is available. As to these defendants, when unconnected with the contract-warranty defendant, the harm caused by them is not related to the plaintiff’s commercial expectations, but to traditional societal expectations and conduct.” (Ferentchak v. Village of Frankfort (1984), 121 Ill. App. 3d 599, 606, 459 N.E.2d 1085, 1090-91.)

Viewing the facts of the case before us in light of the holding in Ferentchak, we must conclude that the counts sounding in negligence and strict liability directed against the builder, and the material supplier should not have been dismissed.

Again, following the rule in Ferentchak and Moorman, we conclude that the defendant landlord is contract-warranty defendant. Therefore, the circuit court’s dismissal of the negligence count against that defendant was correct.

The builder and material supplier both assert that even if the allegations against them were improperly dismissed, the decision of the circuit court must nonetheless be affirmed since the plaintiffs have waived any alleged errors arising from the subsequent order directing verdicts on their behalf. Both the order dismissing the complaint against these two defendants and the order directing a verdict for the same defendants were enumerated as grounds for reversal in the plaintiffs’ notice of appeal. However, only the dismissal order received comment in the plaintiffs’ written argument before this court. The defendants correctly note that alleged errors unsupported by substantial argument are waived and will not be reviewed. (2 Ill. L. & Prac. Appeal & Error sec. 557 (1953).) This rule of appellate review is not applicable to the instant case, however, where the directed verdict order was based upon the prior dismissal order. Under these facts, where the error in the subsequent order was derived from the error in the prior order, arguments directed to the ancestral misapplication of law, by relation, address the progeny as well.

The circuit court directed a verdict against the plaintiffs at the conclusion of the hearing on the constructive eviction action. The plaintiffs had sought damages in the form of lost profits as a result of the alleged constructive eviction. The circuit court’s rationale for directing a verdict against the plaintiffs was based upon the speculative nature of the damages, i.e., lost profits. It is hornbook law that lost profits are not a proper element of damages where proof of those profits is based on speculation or conjecture. However, absolute certainty of this element of damages is unattainable, and all that the law requires is that the evidence establish, with a fair degree of probability, a basis for the assessment of damages. (Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 281 N.E.2d 323.) Accordingly, we believe the proof of damages offered by the plaintiffs was sufficient to submit the plaintiffs’ case of constructive eviction to the jury. The circuit court’s action in directing a verdict was in error.

Other errors were raised concerning the exclusion of plaintiffs’ evidence. The circuit court found the evidence insufficiently connected to the issues raised by the complaint to be relevant. However, on remand, with the introduction of sufficient connecting evidence, this evidentiary question is unlikely to recur. Accordingly, we express no opinion as to these alleged errors.

After carefully reviewing the written and oral arguments of counsel as well as the authorities cited therein, and for the reasons herein-above set forth, we order the appeal against the defendant James B. Clarage & Associates dismissed; we reverse and remand the dismissal of the action based on negligence against Pasch & Sons Construction Company; we reverse and remand the dismissal of the actions based on negligence and strict liability against Alexander Lumber Company; we affirm the dismissal of the action based on negligence against Old Oak Town Center; and, we reverse the directed verdict on the constructive eviction action against Old Oak Town Center.

HEIPLE, J., concurs.

JUSTICE STOUDER,

dissenting:

I agree with the majority that the proper cause of action of a tenant against his landlord is not a tort action sounding in negligence but an action based upon the lease agreement between the parties and the implied covenants recognized by law. I do not agree that the counts based upon negligence and strict liability against the construction company, the architect and material supplier should have been allowed to proceed on a negligence theory. As I read Moorman, the recovery sought by this plaintiff is exactly the type of recovery which Moor-man forbids. The Moorman case adopts as a definition for economic loss

“ ‘damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits— without any claim of personal injury or damage to other property***.’ ” Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 82.

In this case, plaintiff/lessee is claiming that the chemically treated beams caused the loss of business and a subsequent loss of profits at its restaurant because of the noxious odors coming from the beams. These losses fit the Moorman case’s definition of purely economic loss precisely. Furthermore, the plaintiff alleges no other physical damage to either a person or property. Moorman, of course, goes on to deny recovery for purely economic loss in a tort action when the damage is to the product alone.

Moorman also distinguishes between sudden and dangerous occurrences and qualitative defects which are properly left to be remedied under the law of warranty. Moorman, speaking about the slow crack that grew in the steel band of the tank, stated:

“This was not the type of sudden and dangerous occurrence best served by the policy of tort law that the manufacturer should bear the risk of hazardous products. Rather, like the factual situation in Jones & Laughlin Steel, and unlike that in Cloud and Pennsylvania Glass, the harm resulted from a qualitative defect relating to the purchaser’s expectation in terms of the product’s fitness to perform its intended function. ***
Our conclusion that qualitative defects are best handled by contract, rather than tort, law applies whether the tort theory involved is strict liability or negligence. Tort theory is appropriately suited for personal injury or property damage resulting from a sudden or dangerous occurrence of the nature described above.” (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 85-86.)

The defect complained of in this case certainly does not meet this sudden-and-dangerous requirement either.

I believe that Ferentchak v. Village of Frankfort (1984), 121 Ill. App. 3d 599, 459 N.E.2d 1085, did nothing to clarify the Moorman rule. I expressed this belief in my dissent filed in the Ferentchak case, although my main contention in that dissent was that no duty was owed to plaintiff. If we are going to use Moorman’s definition of economic loss to decide whether or not to allow an action in tort in this district, we certainly cannot read the rule in Moorman to allow this action when the damages claimed fit exactly the definition of “economic loss” used by the supreme court in the Moorman case. Practically speaking, Ferentchak eviscerated the Moorman rule rather than expanded it, and in my opinion speaking of economic loss is now meaningless because we are now allowing recovery for disappointed commercial expectations, just what Moorman forbids. Possibly this is the path of the future, but at least I think we should admit that we are not going to follow Moorman rather than pretending to follow it and reaching an opposite conclusion.

Because the rules of stare decisis demand that we be bound by the decisions of the Illinois Supreme Court, I would have affirmed the circuit court of Will County and dismissed the counts against the architect, the construction company and the supplier sounding in tort.


author: JUSTICE BARRY

text:
    LARRY HOFREITER, Plaintiff-Appellant, v. KEITH LEIGH, Defendant-Appellee.
    Third District
    No. 3-83-0279
    Opinion filed June 14, 1984.

      George Mueller, of Hoffman, Mueller & Creedon, of Ottawa, for appellant.
    Keith R. Leigh, of Seneca, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Larry Hofreiter, an attorney, appeals from the dismissal of his complaint for breach of contract brought against defendant Keith Leigh, an Illinois attorney with whom plaintiff had served as co-counsel for a time in a wrongful death cause of action brought on behalf of James Cunico. According to the allegations of the complaint, defendant was engaged by Cunico and invited plaintiff to join him as co-counsel for prosecution of the wrongful death action, and the two attorneys agreed orally that they would share both the work and the fees equally. Defendant’s client, Cunico, approved the arrangement, and suit was filed in November of 1979.

In February of 1980 plaintiff decided to move to California. The two attorneys discussed the arrangement and concluded that no change would be made in the agreement. According to plaintiff’s allegations, defendant subsequently breached the agreement by preventing plaintiff from performing one-half the work and then attempting to deny plaintiff one-half of the fees paid upon settlement of the suit. Several letters were attached to the complaint as exhibits, including a letter dated October 12, 1981, from defendant to plaintiff stating that Cunico had authorized defendant to discharge plaintiff from further participation in the wrongful death cause. The wrongful death action was settled a few days later.

Defendant filed a motion to dismiss the complaint and attached his affidavit which asserted, inter alia, that plaintiff had performed no work since April of 1980 and that plaintiff had admitted orally to performing only 25% of the services in the wrongful death cause of action, for which defendant had paid plaintiff $4,166.67. (From other documents in the record, it would appear that the total attorney fee for settlement of the wrongful death action was $16,666.67, of which $4,166.67 represented one-fourth of the total.)

Plaintiff filed an affidavit in which he asserted that he had prepared the complaint, obtained a forensic engineer, discussed the case on the telephone for many hours, had returned from California for a deposition which was continued, and “would have done more had not attorney Leigh insisted on taking care of the court appearances and answering discovery in the case personally.”

After a hearing, the trial court granted the motion to dismiss as to the two counts of plaintiff’s complaint which alleged breach of contract. A third count asserting a cause of action for quantum meruit was not then dismissed by the trial court, but was subsequently dismissed upon motion of plaintiff. This appeal followed.

Plaintiff contends that his complaint does state a cause of action for breach of contract against defendant and that the trial court erred in dismissing the complaint. Plaintiff urges that all well-pleaded facts are admitted by a motion to dismiss, and that in this case, his allegations that defendant wrongfully prevented plaintiff from performing one-half of the legal work connected with the Cunico case was sufficient to state a cause of action.

Defendant’s motion to dismiss asserted several grounds for dismissal, only two of which need be considered. First, defendant states that an attorney employed on a contingent fee basis does not have a cause of action for breach of contract when he has been discharged by the client prior to final disposition of the case. Defendant relies upon Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 399 N.E.2d 969, where the Illinois Supreme Court adopted the reasoning of the California Supreme Court: the client’s right to discharge his attorney at will is not breach of contract but a term of the contract implied by law because of the special relationship between attorney and client. In Rhoades, the court permitted the attorney to be paid a reasonable fee on a quantum meruit basis for services rendered before discharge but did not permit recovery of the full contingent fee as originally contracted.

A similar statement of the law of Illinois was set out in De Korwin v. First National Bank (N.D. Ill. 1957), 155 F. Supp. 302, 305:

“It is elementary doctrine *** that a client has an absolute and unconditional right to discharge his attorney at any time. The rule is stated in Illinois Law and Practice (vol. 4, Attorneys and Counselors, sec. 53, pp. 58-59):
‘An attorney can be discharged at any time at the will or election of the client, with or without cause, and regardless of any previous arrangement between them. The questions of valid cause for the discharge goes only to the right of the attorney to compensation, that is, an attorney who is without fault can nevertheless be discharged, subject only to the client’s obligation to compensate the attorney for services theretofore rendered, either on a quantum meruit or according to an express contract, if any, between the parties.’ ”

According to a letter attached as an exhibit to plaintiff’s complaint and not contradicted by plaintiff, his client Cunico discharged him prior to the settlement of the wrongful death action. This termination of his employment as one of the attorneys representing Cunico was subject only to plaintiff’s right to compensation for services rendered on a quantum meruit theory. Plaintiff seeks to engraft an exception to this rule by insisting that it applies only to an action between attorney and client, not to a contract action between two attorneys. We do not agree. Any effort to enforce a contract involving the division of a contingent fee would of necessity involve a dispute between two or more attorneys, and we hold that the rule concerning compensation of a discharged attorney applies regardless of the remedy used to assert the claim for fees. In other words, the rule of law is the same whether the claim is asserted in a proceeding to enforce an attorney’s lien or whether, as here, in a breach of contract action against former co-counsel.

Defendant also asserted as a ground for dismissal the provisions of Rule 2 — 107 of the Code of Professional Responsibility (included in rules promulgated by the supreme court (87 Ill. 2d R. 2 — 107)), which reads in pertinent part as follows:

“(a) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm, unless
(1) the client consents ***;
(2) the division is made in proportion to the services performed and responsibility assumed by each, except where the primary service performed by one lawyer is the referral of the client to another lawyer ***.”

Neither party contends that this was a referral situation. Plaintiff argues, however, that Rule 2 — 107 is applicable only to attorney-client situations and not to agreements between two attorneys and that it does not apply to this cause of action.

Defendant has called our attention to a recent case which held that claims pertaining to intra-attorney fee-sharing agreements “involve questions of law and professional responsibility.” (Emphasis added.) (Corti v. Fleisher (1981), 93 Ill. App. 3d 517, 527, 417 N.E.2d 764, 772.) The Corti decision involved a controversy that arose before the supreme court adopted the Illinois Code of Professional Responsibility which permits fee-sharing for referrals. Corti held invalid a contract between an attorney and his former law firm which in effect permitted sharing of fees after the employment ended where the only service rendered was referral. The court concluded that such a contract was contrary to public policy as enunciated in the Code of Professional Responsibility.

A similar view of public policy was enunciated in Benn & Associates, Ltd. v. Nelsen Steel & Wire, Inc. (1982), 107 Ill. App. 3d 442, 437 N.E.2d 900, where the court stated that Supreme Court Rules, including the Code of Professional Responsibility, have the function of law and are a strong indicator of public policy in the area of attorney conduct. In a Federal case involving a fee controversy between lawyers, Fitzgerald v. Freeman (7th Cir. 1969), 409 F.2d 427, the Seventh Circuit Court of Appeals upheld a ruling by the district court that ordinary legal rules of contract are not alone determinative in a controversy between attorneys, but there must also be compliance with the canons of professional ethics.

Plaintiff has cited no cases holding that fee disputes between attorneys should be decided without regard to the Code of Professional Responsibility. He does refer to Brick v. Hirsch (7th Cir. 1964), 331 F.2d 251, where, in an action between attorneys, the court construed the terms of a fee agreement without mentioning the canons of professional ethics; however, nothing in that case indicates that any violation of the canons was involved or considered. We believe the better view is that the Illinois Code of Professional Responsibility applies to all claims for fee-sharing without regard to whether the claim is asserted against a client or against another attorney. The purpose of Rule 2 — 107(a)(1) is to serve the best interest of the client. Plaintiff admittedly did not perform services for which he seeks additional compensation in the case at bar. Whether his failure to perform was due to defendant’s conduct or whether it was due to plaintiff’s removal to California, the fact remains that an equal sharing of the work did not occur and that plaintiff is not entitled to enforcement of the original oral agreement as to equal sharing of fees, in violation of the Code of Professional Responsibility. To permit plaintiff to recover fees which he did not earn would ignore the fact that plaintiff was terminated by his client without performing the services for which he claims a right to compensation.

In defendant’s motion to dismiss, he also stated that another claim between the same parties for the same purpose was pending as a part of the wrongful death action. However, at oral argument before this court, plaintiff stated that his claim in that cause has now been dismissed, and this is the only proceeding to determine his claim for additional fees. Hence, we need not consider the effect of another pending cause.

For the reasons given above, we affirm the order of dismissal entered by the circuit court of La Salle County.

Affirmed.

STOUDER, P.J., and ALLOY, J., concur.


author: JUSTICE HEIPLE

text:
    DONALD SALISBURY et al., Plaintiffs-Appellants, v. CHAPMAN REALTY et al., Defendants-Appellees.
    Third District
    No. 3—83—0609
    Opinion filed June 18, 1984.

      Edwin R. McCullough, of Chicago, and Edward J. Kuleck, Jr., of Ottawa, for appellants.
    Douglas A. Gift, of Herbolsheimer, Lannon, Henson, Duncan and Reagan, P.C., of La Salle, for appellee Realty World Midwest, Inc.
    James Troupis, of Troupis and Troupis, of Mendota, for appellee Chapman Realty.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiffs appeal from the dismissal of their second amended complaint. In 1979 and 1980, the plaintiffs purchased real estate from Laurel Chapman, Jr., a partner of Chapman Realty and a licensed real estate broker. Laurel had originally purchased the property via four mortgage loans which were still outstanding at the time of the sales to the plaintiffs. The plaintiffs agreed to purchase the properties on installment contracts. Some of the plaintiffs were not told of the mortgages; others were not informed of the amount of the loans or the extent of Laurel’s indebtedness. The plaintiffs made payments on the contracts, but Laurel failed to repay the mortgage loans. First Federal Savings and Loan Association of Ottawa foreclosed on the plaintiffs’ property. Laurel has absconded.

The plaintiffs filed a complaint naming Laurel’s partners in Chapman Realty, and the franchisor, Realty World, as defendants. First Federal, the mortgagor, was also named as a defendant but is not a party to this appeal. The trial court granted the defendants’ motion to dismiss holding that Realty World and the partnership defendants could not be vicariously liable for Laurel’s conduct because he was not acting as a partner when he sold the property to the plaintiffs and because Realty World was a franchisor and not a principal of Chapman Realty. The court also found that Laurel’s conduct did not amount to legal fraud. The court did not comment on the plaintiffs’ remaining causes of action for breach of contract and for violations of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 1211/2, par. 261 et seq.) and the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1981, ch. Ill, par. 5701 et seq.).

In considering a motion to dismiss, well-pleaded allegations are to be taken as true. This rule does not extend to conclusions of law or fact which are unsupported by allegations of specific facts. (Tru-Link Fence Co. v. Reuben H. Donnelley Corp. (1982), 104 Ill. App. 3d 745.) Where there is a conflict between the pleaded facts and facts set forth in attached exhibits, the exhibits are controlling. Sangamon County Fair & Agricultural Association v. Standard (1956), 9 Ill. 2d 267, 276.

The liability of the partnership defendants depends upon whether the plaintiffs’ complaint alleges sufficient facts to show that Laurel’s wrongful conduct occurred in the ordinary course of partnership business. If so, then the partnership is liable to the same extent as Laurel. Ill. Rev. Stat. 1981, ch. 1061/2, par. 13.

The well-pleaded allegations of the complaint indicate that the plaintiffs went to the office of Chapman Realty in response to real estate listings placed by the firm in local newspapers. The plaintiffs were shown a number of homes before finally settling on property owned by Laurel Chapman. Some of the installment contracts were negotiated at the Chapman Realty Office by Laurel, who had introduced himself as a partner in the firm. The plaintiffs made payments to Chapman Realty, some of which were deposited into partnership accounts.

The defendants contend that since Chapman Realty does not ordinarily sell property on its own account, the sales to the plaintiffs are beyond the scope of partnership business. The defendants also argue that the installment contracts, which are attached to the complaint as exhibits, show that LaUrel and his wife were the sellers. The defendants contend that the -exhibits are controlling because they contain facts contrary to the complaint which conclusively establish that the partnership had nothing to do with the sales. We disagree.

Chapman Realty was in the business of listing, showing and selling real estate as well as handling the incidental paper work. The sales in question were carried out through the office of Chapman Realty and for all intents and purposes appeared to be part of normal partnership business. Although Chapman Realty did not ordinarily buy and sell property on its own account, the sales here were carried out in such a manner as to be indistinguishable from ordinary partnership business. The fact that the installment contracts do not designate the partnership as the seller does not change this result. Accordingly, we find that the complaint is sufficient to allege partnership liability based on section 13 of the partnership act. We reverse the dismissal of the complaint as to the Chapman defendants. We next examine the liability of Realty World.

Realty World and Chapman Realty are parties to a franchise agreement which specifically sets forth a relationship of franchisor/ franchisee as opposed to principal/agent. In Slates v. International House of Pancakes, Inc. (1980), 90 Ill. App. 3d 716, the court examined a franchise agreement with similar language and made the following observation:

“Where a sufficient degree of control and direction is manifested by the parent franchisor, an agency relationship may be created. Whether the relationshp between a franchisor and a franchisee is that of principal and agent, at least insofar as this relationship affects a stranger to the franchise agreement, is dependent upon the intention of the parties as determined from the written agreement and the accompanying circumstances. The declaration of the parties in the agreement respecting the nature of the relationship created thereby are not controlling, however, and, as with contracts generally, the writings must be considered as a whole. 62 Am. Jur. 2d Private Franchise Contracts sec. 15 (1972).” 90 Ill. App. 3d 716, 726.

We find that Realty World did not exercise such complete control over Chapman Realty so as to negate the intent of the franchise agreement not to create a principal-agent relationship. Realty World does not hire or fix the compensation of Chapman employees nor does it control the firm’s day-to-day operation. In exchange for using Realty World’s proprietary marks and goodwill, Chapman agreed to conduct its business in accordance with Realty World’s confidential operations manual. On a voluntary basis, Chapman could send its employees to training sessions conducted by Realty World, Chapman Realty agreed to maintain its office, furnishing and supplies according to standards set by Realty World. Finally, Realty World reserved the right to inspect Chapman’s accounts at reasonable times. Realty World’s control is considerable but not total. Chapman Realty maintains its individual identity and supervises its own operations subject to general standards set by Realty World.

The degree of control exercised by Realty World is substantially similar to that of the franchisor in Slates, wherein the court refused to find an agency relationship. The plaintiffs urge us to disregard Slates as dicta and look to cases from other jurisdictions. We are aware that the agency question in Slates was subordinate to the primary issue of whether the defendant franchisor had been properly served with process. But of critical importance to the service issue was the question of whether a franchisee is the agent of the franchisor for notice purposes. Therefore, we do not find the analysis of the agency issue in Slates to be mere dicta. Based on Slates, the complaint in the present case fails to allege an agency relationship between Realty World and Chapman Realty. The plaintiffs have also failed in their attempt to establish agency by estoppel and apparent authority.

Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume or which he holds his agent out as possessing. (Wing v. Lederer (1966), 77 Ill. App. 2d 413, 417.) There are no allegations in the plaintiffs’ complaint which indicate that Realty World held Chapman Realty out as possessing the authority to act on Realty World’s behalf as an agent. The complaint alleges only a franchisor/franchisee relationship. In fact, the franchise agreement attached to the complaint as an exhibit contains a clause which requires Chapman to prominently display a certificate in the office setting forth Chapman’s status as an independent franchisee.

Similarly, estoppel to deny the existence of an agency relationship also requires a holding out. Conduct forming the basis for estoppel against a person holing another out as his agent is that which is calculated to mislead and must have been such that an ordinarily prudent person would have considered it as consistent only with the fact that the designated party was an agent. (Crittendon v. Slate Oil Co. (1966), 78 Ill. App. 2d 112.) The complaint fails to allege facts which show that Realty World held out Chapman Realty as an agent under the conditions specified above. The complaint was properly dismissed as to defendant Realty World.

The next issue is whether the complaint states a cause of action for fraud. The elements of a cause of action for fraudulent misrepresentation are: (1) false statement of material fact; (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damages. Furthermore, the reliance by the other party must be justified, i.e., he must have had a right to rely. Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286.

The defendants argue that Laurel’s alleged misrepresentations were promises to act at a future time and as such were not actionable. The complaint alleges two misrepresentations: (1) passive nondisclosure of the mortgages and (2) a false promise to convey good title to the property at a future date.

Where a person has a duty to speak, his failure to disclose material information is equivalent to a fraudulent concealment. (Perlman v. Time Inc. (1978), 64 Ill. App. 3d 190.) As will be discussed more fully later in this opinion, Laurel had a duty to disclose material facts under the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1981, ch. 111, par. 5701 et seq.). Therefore, Laurel’s silence may constitute as fraudulent concealment of a material act.

It remains the law in Illinois that a promise to perform an act, even though made without a present intention to perform, is insufficient to constitute fraud. There is an exception where the false promise of future conduct is the scheme or device to accomplish the fraud. (Baker, Bourgeois & Associates, Inc. v. Taylor (1980), 84 Ill. App. 3d 909, 914.) This is precisely what the plaintiffs have alleged and at this stage those allegations must be taken as true. Therefore, the complaint contains sufficient allegations of material misrepresentations.

Next, the defendants argue that the plaintiffs were not entitled to rely on Laurel’s nondisclosure of the mortgages because they could have been discovered by examining the public records. Fraud may generally be predicated on false representations although the truth could have been ascertained by an examination of the public records. Where a party has been guilty of an intentional and deliberate fraud, by which and to his knowledge the other party has been misled, the guilty party cannot escape the consequences of his conduct by saying that the fraud might have been discovered had the other party used reasonable care. Citizens Savings & Loan Association v. Fischer (1966), 67 Ill. App. 2d 315.

Conversely, a party is not justified in relying on representations made when he had ample opportunity to ascertain the truth of the representations before acting. (Goetz v. Avildsen Tool & Machines, Inc. (1980), 82 Ill. App. 3d 1054.) The question of whether the plaintiffs had a right to rely on Laurel’s silence regarding the mortgages must be answered in light of all of the facts of which the plaintiffs had actual knowledge as well as those which they might have discovered by the exercise of ordinary prudence. (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282.) Obviously, this rule raises substantial questions of fact. Based on the pleadings, we are not prepared to say that the plaintiffs will not be able to prove any set facts which will demonstrate reasonable reliance.

Viewed as a whole, the complaint adequately alleges that Laurel Chapman’s misrepresentations were knowing, deliberate and were intended to induce the plaintiffs to enter into the installment contracts. Furthermore, the complaint alleges that the plaintiffs reasonably relied on Laurel’s representations. Under these circumstances, we see no need for greater specificity regarding the reasonableness of the plaintiffs’ reliance. The complaint is sufficient to state a cause of action for fraud.

The defendants next argue that the complaint failed to state a cause of action for breach of contract and violations of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 1211/2, par. 261 et seq.) and the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1981, ch. 111, par. 5701 et seq.). As to the breach of contract and consumer fraud counts, the defendants do not challenge the sufficiency of the complaint but instead argue that they cannot be vicariously liable for Laurel’s conduct. Since we have already determined that the complaint adequately alleges the partnership liability of the Chapman defendants, their argument on this issue is without merit.

Finally, the defendants argue that the plaintiffs have no cause of action under the Real Estate Brokers and Salesmen License Act because Laurel ws not acting as a broker but as a private seller when he sold the property to the plaintiffs. Section 4.02(a) of the Act (Ill. Rev. Stat. 1981, ch. 111, par. 5706(a)) defines a broker as one who sells real estate for his own account while engaged in the business of buying or selling real estate. We find that the complaint alleges sufficient facts to show that Laurel was engaging in the business of buying and selling real estate within the meaning of the Real Estate Brokers and Salesmen License Act.

The judgment of the circuit court of La Salle County is affirmed insofar as it dismisses defendant Realty World. In all other respects, the judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part; cause remanded.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE McNAMARA

text:
    LYLE VANOVER, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Pierce Glass Co., Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—84—0098 WC
    Opinion filed June 7, 1984.
    Steven W. Berg, of Calandrino, Logan & Berg, P.C., of Springfield, for appellant.
    Heyl, Royster, Voelker & Allen, of Springfield (Gary Borah, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Lyle Vanover, appeals from a judgment of the circuit court of Logan County confirming a decision of the Industrial Commission. An arbitrator found that petitioner had suffered from accidental, work-related injuries and awarded him $173.36 per week for 25% weeks for temporary total disability, $173.36 for an additional 25 weeks for 5% permanent partial disability, and $3,260.36 for necessary medical services. On review the Commission found that petitioner was entitled to temporary total disability for right and left hernias but that he had not established a causal connection between his complaint of a lower back injury and his employment. It thereupon reduced the award to 182/7 weeks of temporary total disability and $1,279.56 for necessary medical services for treatment of the hernias.

Petitioner was employed by respondent, Pierce Glass Company, as a relief driver. On October 15, 1978, while lifting a drum of broken glass, he felt a snap in his lower back region. After emergency room treatment, petitioner was referred to Dr. Gilbert Blaum, his family physician. Dr. Blaum diagnosed right and left inguinal hernias and performed surgery on the left side in November 1978, and on the right side in January 1979. On February 20, 1979, petitioner returned to work as a yardman.

At the arbitration hearing petitioner testified that his back pain began while he was recuperating from the first hernia surgery. Although he complained to Dr. Blaum about the pain, Dr. Blaum did nothing about it. The back pain worsened after the second surgery and persisted when he returned to work. On September 21, 1979, petitioner commenced treatment with Dr. Robert Wiehe, a chiropractor. Petitioner was then referred to Dr. David Mack, an orthopedic specialist. Dr. Mack hospitalized petitioner for a lumbar myelogram and thereafter treated him with therapy and traction. Petitioner was permitted to return to work on December 3, 1979, as a tow-motor mechanic.

Dr. Wiehe’s testimony was given in the form of an evidence deposition in which he stated that petitioner’s failure to seek medical treatment for lower back pain until 11 months after the trauma was not unusual since an injury to a disc can become asymptomatic. As the degenerative process continues, the symptoms become severe. In his opinion, there was a causal connection between the lifting incident of October 15, 1978, and petitioner’s lower back pain. Dr. Wiehe’s notes indicated that petitioner first noticed back pains one month prior to his first visit in September 1979.

Dr. Blaum testified by means of an evidence deposition that he could not give an opinion as to whether petitioner’s back injury was related to the 1978 accident. Petitioner never complained to Dr. Blaum about his back pain, either after the accident or during his post-operative visits. In June 1979, Dr. Blaum treated petitioner for an injury to a finger, sustained while playing basketball.

Petitioner introduced a report from Dr. Gordon Schultz, an orthopedic specialist who examined him. Dr. Schultz stated that petitioner’s back problem might be related to his injury at work. At the hearing on review, petitioner offered a letter from Dr. Walter Wheelhouse, an-orthopedic specialist who was then treating him. Dr. Wheelhouse opined that the lifting injury may have aggravated petitioner’s back condition.

Respondent introduced into evidence petitioner’s application for adjustment of claim filed with the Commission in July 1979. The only injuries set forth were hernias; no mention was made of lower back injuries.

On appeal petitioner contends that the Industrial Commission’s decision that he failed to prove a causal connection between his lower back condition and his work-related injury was against the manifest weight of the evidence.

Petitioner has the burden of establishing a causal connection between his injury and his employment. (Caterpillar Tractor Co. v. Industrial Com. (1980), 83 Ill. 2d 213, 414 N.E.2d 740.) And we wall not substitute our judgment for that of the Commission on factual questions, including the matter of causal connection. Owens-Illinois Glass Co. v. Industrial Com. (1968), 39 Ill. 2d 312, 235 N.E.2d 611.

We find that the Commission’s decision is amply supported by the evidence. The Commission had before it evidence that, despite being treated for two hernias and an unrelated injury, petitioner never mentioned back pain or injury to his treating physician; that petitioner told Dr. Wiehe that he first had back pain in August 1979; that petitioner’s claim for adjustment did not mention a back injury; that following the hernia surgery, petitioner did not miss work until nearly one year after the incident; and that in June 1979, petitioner was injured while playing basketball. The Commission’s decision that petitioner had not established a causal connection between his lower back injury and his employment was not against the manifest weight of the evidence.

For the reasons stated, the judgment of the circuit court of Logan County confirming the decision of the Industrial Commission is affirmed.

Judgment affirmed.

SEIDENFELD, P.J., and BARRY, WEBBER, and KASSERMAN, JJ., concur.


author: JUSTICE WHITE

text:
    TERRI LYNN ELLIS, Plaintiff-Appellant, v. SENTRY INSURANCE COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 83—1387
    Opinion filed June 13, 1984.
    John L. Cifelli & Associates, Ltd., of Chicago Heights (Luciano Panici, of counsel), for appellant.
    Stephen M. Passen, Ltd., of Chicago (Stephen M. Passen, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Terri Lynn Ellis, brought this declaratory judgment action to determine whether the uninsured-motorist provision of an automobile insurance policy issued by defendant, Sentry Insurance Co., to her father is applicable to her claims against the uninsured driver of a motorcycle. The circuit court of Cook County granted summary judgment in favor of defendant, finding that the provision was not applicable. Plaintiff appeals from this determination.

The facts are not in dispute. On June 1, 1979, plaintiff sustained injuries while riding as a passenger on a motorcycle operated by Dennis Callahan, who was not insured. Prior to that date, defendant had issued a policy of automobile insurance to plaintiff’s father, George Ellis, which was in effect on the day of the occurrence. The insured vehicle, designated on the declaration page of the policy, was a 1975 Ford automobile, and the policy provided uninsured motorist coverage in the amount of $10,000 per person, $20,000 per occurrence. Since plaintiff was a member of the household of her father on that day, she was an insured under the policy.

Defendant denied that the uninsured motorist provision of the policy was applicable to the occurrence, basing its denial on the following language of that provision:

“We promise to pay the damages you’re legally entitled to receive from the owner or operator of an uninsured motor vehicle because of bodily injury. We’ll pay these damages for bodily injury you suffer in a car accident while occupying a car or, as a pedestrian, as a result of having been struck by an uninsured motor vehicle.” (Emphasis in original.)

The policy also contained the following definitions of “car,” “car accident,” and “motor vehicle”:

“A car is a 4 wheel motor vehicle licensed for use on public roads. It includes any motor home that isn’t used for business purposes and any utility trailer. A car accident is an unexpected and unintended event that causes bodily injury or property damage and arises out of the ownership, maintenance or use of a car or other motor vehicle.
***
A motor vehicle is a land motor vehicle designed for use on public roads. It includes cars and trailers. It also includes any other land motor vehicle while used on public roads.” (Emphasis in original.)

Subsequently, plaintiff filed this declaratory judgment action, asking the circuit court to determine whether she was entitled to uninsured motorist benefits. Thereafter, defendant moved for summary judgment, contending that the uninsured motorist provision limited uninsured motorist coverage to injuries sustained “in a car accident while occupying a car” or “as a pedestrian, as a result of having been struck by an uninsured motor vehicle.” Since plaintiff was occupying a motorcycle rather than a car at the time of the alleged occurrence, defendant contended that the uninsured motorist provision of the policy was not applicable. Plaintiff filed a cross motion for judgment on the pleadings, contending that section 143a of the Illinois Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 755a) required defendant to provide uninsured motorist coverage to persons insured under the insurance policy for injuries sustained in an accident while riding as a passenger on a motorcycle driven by an uninsured motorist, and consequently, that the attempted limitation on coverage as ineffective. The circuit court granted defendant’s motion for summary judgment, holding that plaintiff was not entitled to uninsured motorist benefits because the plain, unambiguous terms of the policy excluded coverage under the facts of this case.

We first look to the policy of insurance to determine whether its language clearly excludes uninsured motorist coverage to an insured such as plaintiff, who was injured while a passenger on an uninsured motorcycle. The general rule in Illinois is that “[i]n the absence of ambiguity, words in an insurance policy are to be given their plain, ordinary and popular meaning.” (Weiss v. Bituminous Casualty Corp. (1974), 59 Ill. 2d 165, 170-71, 319 N.E.2d 491; State Farm Mutual Automobile Insurance Co. v. Childers (1977), 50 Ill. App. 3d 453, 456, 365 N.E.2d 290.) Ambiguous or equivocal provisions of an insurance policy, however, will be construed most strongly against the insurer and liberally in favor of the insured. State Farm Mutual Automobile Insurance Co. v. Childers (1977), 50 Ill. App. 3d 453, 456; Lumbermen’s Mutual Casualty Co. v. Norris (1973), 15 Ill. App. 3d 95, 97, 303 N.E.2d 505.

The quoted portion of the uninsured motorist provision of the policy consists of two sentences. The first is a promise to pay damages that the insured is legally entitled to receive from the owner or operator of an uninsured motor vehicle. The second, according to defendant, limits this promise to pay to bodily injury suffered either (1) in a car accident while occupying a car, or (2) as a pedestrian, as a result of having been struck by an uninsured motor vehicle. Although some doubt was raised at the oral argument in this case as to the ability of the second sentence to limit the scope of the first, assuming that it does, we think that the language of the provision clearly would not provide coverage for this occurrence. Plaintiff was injured while a passenger on a motorcycle, and thus her injuries fell into neither category of the second sentence. This conclusion is consistent with Illinois case law, which recognizes that “the word ‘automobile’ means one thing, and the word ‘motorcycle’ means something essentially different.” Home Indemnity Co. v. Hunter (1972), 7 Ill. App. 3d 786, 790, 288 N.E.2d 879; see also State Farm Mutual Automobile Insurance Co. v. Childers (1977), 50 Ill. App. 3d 453, 457.

Even assuming the language of the uninsured motorist provision excludes coverage for the occurrence, we must determine whether the exclusionary language violates section 143a of the Illinois Insurance Code and therefore was rendered unenforceable by section 442 of that Code (Ill. Rev. Stat. 1979, ch. 73, par. 1054).

Section 143a(1) of the Illinois Insurance Code provides:

“On or after July 1, 1963, no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7 — 203 of The Illinois Vehicle Code for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom ***.” (Ill. Rev. Stat. 1979, ch. 73, par. 755a.)

The legislative purpose behind this section is “ ‘to place the policyholder in substantially the same position he would occupy, so far as his being injured or killed is concerned, if the wrongful driver had had the minimum liability insurance required by the [Illinois Vehicle Code].’ ” Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, 176, 370 N.E.2d 1044; Barnes v. Powell (1971), 49 Ill. 2d 449, 452-53, 275 N.E.2d 377; Ullman v. Wolverine Insurance Co. (1970), 48 Ill. 2d 1, 4, 269 N.E.2d 295.

Section 442 of the Illinois Insurance Code addresses the situation in which section 143a requires uninsured motorist coverage, but the policy of insurance furnishes more limited coverage. It provides:

“Any contract or policy of insurance or any application, endorsement or rider form used in connection therewith issued in violation of any section of this Code requiring certain provisions to be inserted therein or the inclusion of provisions prohibited, or issued without submitting same for approval by the Director in accordance with section 143, shall nevertheless be held valid but shall be construed in accordance with the requirements of the section that the said policy, application, endorsement or rider violates, and when any provision in such contract, application, endorsement or rider is in conflict with any provision of this Code, the rights, and obligations of the company thereunder shall not be less favorable to the holder of the contract and the beneficiary or annuitant thereunder than is required by the provisions of this Code applicable thereto.” (Ill. Rev. Stat. 1979, ch. 73, par. 1054.)

Thus, the uninsured motorist coverage required by statute is mandatory, and may not be whittled away by an unduly restrictive definition. See Barnes v. Powell (1971), 49 Ill. 2d 449, 453.

Since section 143a requires a policy of insurance to afford protection against uninsured motorists, the dispositive issue is whether that section requires coverage under the facts of the instant case. Section 143a refers to uninsured “motor vehicles,” not to “automobiles” or “cars,” and we think that it is beyond argument that a motorcycle is a motor vehicle (Hartford Accident & Indemnity Co. v. Holada (1970), 127 Ill. App. 2d 472, 478, 262 N.E.2d 359). Accordingly, the uninsured motorist provision of the policy of insurance issued by defendant to plaintiff furnishes less coverage than section 143a requires, if it limits coverage to bodily injury suffered “in a car accident while occupying a car” or “as a pedestrian, as a result of having been struck by an uninsured motor vehicle.” In our opinion, sections 143a and 442 require a policy of insurance to provide coverage against damages caused by owners or operators of uninsured motor vehicles, including motorcycles. Consequently, a motorcycle must be considered as included in the policy protection against uninsured motorists. See Hartford Accident & Indemnity Co. v. Holada (1970), 127 Ill. App. 2d 472, 479.

In Holada, the appellate court was confronted with a similar issue and reached the same conclusion we reach here. In that case, the wife of the named insured, while crossing a street, was struck and injured by a motor scooter operated by a person uninsured as to liability. The language of the uninsured motorists provision of the insurance policy issued by Hartford provided protection against the owner or operator of an “uninsured automobile,” and Hartford contended that a proper interpretation of the term “uninsured automobile” would exclude a motor scooter. The appellate court stated: “It can be assumed that the term ‘automobile’ does not include a motor scooter. However, the real issue in this case does not turn on construction of that word as used in the policy, but, rather, upon the statute which requires a policy to afford protection against uninsured motorists.” (127 Ill. App. 2d 472, 477.) The court further stated:

“[W]e consider it beyond argument that a motor scooter is a motor vehicle ***. Consequently, we are presented with a situation in which the statute [section 143a of the Illinois Insurance Code] requires coverage in relation to uninsured motor vehicles, but the policy in question (according to plaintiff’s argument) furnishes coverage in relation to a more limited category of uninsured automobiles.” (127 Ill. App. 2d 472, 478.)

Relying on section 442 of the Illinois Insurance Code, the appellate court concluded that a motor scooter must be considered as included in the policy protection against uninsured motorists.

Defendant contends that Holada has, in effect, been overruled by the subsequent appellate court opinions in State Farm Mutual Automobile Insurance Co. v. Childers (1977), 50 Ill. App. 3d 453, 365 N.E.2d 290, and State Security Insurance Co. v. Goodman (1972), 6 Ill. App. 3d 1008, 286 N.E.2d 374. We find each case to be clearly distinguishable. In Childers, the appellate court addressed the issue of whether the term “non-owned automobile” as defined in a liability insurance policy should be construed to include a motorcycle. In holding that it should not, the court stated that section 7 — 202(2) of the Illinois Safety Responsibility Law (Ill. Rev. Stat. 1971, ch. 951/2, par. 7— 202(2)), did not require the court to make a construction of the term “non-owned automobiles” which would include a motorcycle. (State Farm Mutual Automobile Insurance Co. v. Childers (1977), 50 Ill. App. 3d 453, 458.) Unlike Childers, in Holada the appellate court held that section 143a of the Illinois Insurance Code, the uninsured motorist statute, mandated protection from owners or operators of uninsured motor scooters. In Goodman, the appellate court addressed the issue of whether the word “automobile” contained in an exclusion to the family protection coverage of a policy of insurance included the word “motorcycle.” In refusing to expand the word “automobile” to include all forms of motor vehicles, and consequently, a motorcycle, the court expressly distinguished Holada, stating:

“The rationale applicable to the Hartord case does not apply here because it is not necessary to expand the word “automobile” to include all forms of motor vehicles in order to comply with the requirements of the statute [section 143a of the Illinois Insurance Code]. This is an exclusion and the statute does not require that certain parties or vehicles be excluded.” State Security Insurance Co. v. Goodman (1972), 6 Ill. App. 3d 1008, 1014.

In summation, we hold that if the language of the uninsured-motorist provision of the policy of insurance issued by defendant to plaintiff excludes coverage under these facts, then the exclusionary language violates section 143a of the Illinois Insurance Code and is rendered unenforceable by section 442 of that Code. For the aforementioned reasons we reverse the order of the circuit court granting summary judgment in favor of defendant, and we remand the cause to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded.

RIZZI, P.J., and McGILLICUDDY, J., concur.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES M. CRATER, Defendant-Appellant.
    Third District
    No. 3—83—0316
    Opinion filed June 22, 1984.

      Daniel D. Yuhas, David P. Bergschneider, and Janet Binder, all of State Appellate Defender’s Office, of Springfield, for appellant.
    David Zwicker, State’s Attorney, of Aledo (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, James Crater, appeals the denial of his petition for post-conviction relief by the circuit court of Mercer County. Originally the defendant appealed his conviction and 30-year sentence for the offense of armed robbery to this court. The defendant’s conviction and sentence were affirmed, and a petition for leave to appeal to the Illinois Supreme Court was denied.

In this appeal, the defendant contends (1) that he was denied due process by the State’s failure to disclose that witnesses to the armed robbery had given information regarding the robber’s description which was subsequently used to create composite sketches of the robbery suspect and that an investigating police officer believed the composite drawings more closely resembled someone other than the defendant; (2) that he was denied his sixth amendment right to effective assistance of counsel where his court-appointed trial counsel failed to move to suppress defendant’s confession on the ground that despite defendant’s Miranda (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602) waiver of his right to remain silent and to have an attorney present during questioning, the defendant was entitled, because he was in custody on an armed robbery charge, to Miranda warnings plus specific information that a charge had been filed against him; (3) that the defendant was denied effective assistance of appellate counsel where his attorney on direct appeal failed to raise issue (2).

The record indicates that on December 5, 1979, the defendant was charged by information with the armed robbery of the Farmer’s State Bank of Sherrard.

Prior to trial, a motion to suppress defendant’s confession was filed which alleged that statements made by the defendant on Decernber 7, 1979, were involuntary. At the time the statements were made by the defendant to agents of the Illinois Department of Law Enforcement, he was recovering from injuries sustained in an automobile accident and under prescriptive medication in the hospital.

The defendant was in a Galesburg hospital after having been transferred there from a hospital in Quincy. The defendant was read and waived his Miranda rights prior to talking to the authorities. The agent who questioned the defendant testified that the defendant appeared to understand the questions asked of him and did not appear to be under the influence of any drugs. When the defendant was questioned about his activities on November 29, 1979, the day of the bank robbery, he replied that that day drew a blank with him. The defendant recalled he had been drinking, but that he wasn’t drunk and that somehow the money just “appeared beside him” in the car he was driving, a blue 1966 Oldsmobile.

The defense motion to suppress was denied.

The evidence at trial established that on November 29, 1979, the Farmer’s State Bank of Sherrard was robbed of over $6,000, including $200 in marked bills. Rosemary Hicks, a teller at the bank, testified that a man “resembling the defendant” came to her window and handed her a brown paper sack and told her to fill it up. The man was armed with a small handgun.

Karen Lee Parker, a customer of the bank, • was present during the robbery and positively identified the defendant as the armed robber.

Harry Johannes testified that he was in the bank on the day of the robbery and saw a man who looked “like the very same person” as the defendant take the paper sack and walk out the door and drive off in a 1966 or 1967 bluish-green Oldsmobile.

The defendant was in an automobile accident near Quincy on December 1, 1979. While in the hospital, several items were removed by his family from the defendant’s wrecked car which was subsequently searched by the police. A shoe box containing over $4,000 and a pen and pencil bearing the defendant's name were recovered from the trunk of the wrecked car. Serial numbers from four $20 bills found in the shoe box matched the serial numbers of marked bills taken in the robbery. When the defendant was taken to the hospital, he had over $200 and a receipt for a car purchased in Peoria on November 30, 1979, the day after the robbery.

With respect to the defendant’s first claim of error, that he was denied due process when certain composite sketches of the bank robbery suspect which were prepared by a police sketch artist were not turned over to the defendant pursuant to his request for discovery, we note that this issue was not raised in either the defendant’s original or amended petition for post-conviction relief. The defendant’s failure to raise such an issue in the circuit court amounts to waiver of the issue on appeal. People v. Carmickle (1981), 97 Ill. App. 3d 917, 424 N.E.2d 78.

The burden is on the defendant to allege and prove facts which demonstrate that he was denied his constitutional rights in a proceeding under the Post-Conviction Hearing Act. (People v. Hayes (1975), 29 Ill. App. 3d 756, 331 N.E.2d 249; People v. Moore (1975), 60 Ill. 2d 379, 327 N.E.2d 324, cert. denied (1975), 423 U.S. 938, 46 L. Ed. 2d 270, 96 S. Ct. 298.) The defendant made no showing that the composite drawing was favorable to his case or material to the question of guilt or punishment. Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194; People v. Kosik (1982), 110 Ill. App. 3d 930, 443 N.E.2d 238.

The evidence only established that a composite drawing was prepared based upon descriptions given of the bank robbery suspect. There was no showing that the witnesses to the robbery ever viewed the drawings based upon their descriptions. Likewise, there was no showing that the witnesses ever adopted the composite drawings as being accurate. Before a composite can be used to impeach a witness, it must be shown that the sketch is authentic and that testimony from the person who prepared the sketch established that the identification witness adopted and confirmed the drawing as being accurate. People v. Yates (1983), 98 Ill. 2d 502; People v. Schmitt (1981), 99 Ill. App. 3d 184, 424 N.E.2d 1267.

We are further aware that defendant’s trial counsel candidly admitted that he was aware of one of the investigating officer’s suspicions that an individual other than the defendant was involved in the robbery. The disclosure of the identity of every suspect the police may have had during the course of their investigation is not required in any event. (People v. Boerckel (1979), 68 Ill. App. 3d 103, 385 N.E.2d 815.) The facts of the instant case make it clear that the existence of the composite drawings was not material to the defendant’s defense because the drawings were never used by the witnesses to identify the defendant. Therefore the failure to turn them over to the defense did not result in a denial of due process.

The defendant next contends that he was denied effective assistance of counsel in violation of the sixth amendment where his court-appointed lawyer did not move to suppress defendant’s confession on the ground that despite defendant’s Miranda waiver of his right to remain silent and to have an attorney present during questioning, no effective waiver occurred because he had not received specific information that a charge had been filed against him and other specific information regarding the significance of that event.

The allegation that a higher standard of waiver applies to the waiver of a defendant’s sixth amendment right to counsel once it has attached by the commencement of adversarial judicial criminal proceedings has recently been discussed by our supreme court. (See People v. Owens (1984), 102 Ill. 2d 88.) The court in Owens found that irrespective of whether the defendant’s sixth amendment rights had attached or not, the defendant’s awareness that he was being held for murder together with the waiver following the Miranda warnings was sufficient to uphold the validity of the waiver.

The facts of the instant case reveal that the defendant had been charged and arrested for the bank armed robbery two days before he was questioned by the police.

The defendant claims that his statements were involuntary because he was' “heavily sedated” with Demerol following abdominal surgery and a brain concussion. At the hearing on the motion to suppress, defense counsel did not present any evidence in support of the defendant’s allegation as to his condition. However, evidence at the post-conviction hearing indicated that the defendant’s attorney had contacted his physician to determine if any drugs the defendant received would have affected his ability to comprehend his rights or understand the questions asked of him. The defendant’s doctor indicated that in his opinion, the defendant’s small dosage of Demerol would not have impaired his ability to understand his rights or respond to questioning.

We believe that based on the foregoing evidence, the defendant’s trial counsel cannot be considered incompetent for failing to raise an issue which no court in an Illinois or United States Supreme Court case had decided.

In addition, the evidence at the post-conviction hearing indicated that there was no corroboration of defendant’s claim that his statements to the police were involuntary.

Finally, substituted appellate counsel contends that the defendant’s original appellate counsel on direct appeal rendered ineffective assistance of counsel by failing to raise the issue of defendant’s ineffective assistance of trial counsel.

While a defendant may raise the issue of appellate counsel’s alleged incompetence in a post-conviction petition regarding the failure to raise an issue on direct appeal (People v. Frank (1971), 48 Ill. 2d 500, 272 N.E.2d 25), it is not incompetence for appellate counsel to fail to raise an issue on appeal which counsel believes is without merit, unless his appraisal of the merits is patently erroneous. People v. Frank (1971), 48 Ill. 2d 500, 503, 272 N.E.2d 25, 28.

Since there is no Illinois decisional authority to support the defendant’s allegation that a higher standard of waiver beyond Miranda warnings is necessary to establish a waiver of counsel following the commencement of adversarial criminal proceedings, there is no basis to claim that the defendant received ineffective trial or appellate counsel.

For the foregoing reasons, the judgment of the circuit court of Mercer County is affirmed.

Affirmed.

BARRY and STOUDER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALLEN FITZPATRICK, Defendant-Appellant.
    Third District
    No. 3—83—0636
    Opinion filed June 22, 1984.
    Robert Agostinelli and Jean Herigodt, both of State Appellate Defender’s Office, of Ottawa, for appellant.

      John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovee, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant-appellant, Allen Fitzpatrick, was convicted'of driving while license suspended and disobeying a stop sign following a jury trial. (Ill. Rev. Stat. 1983, ch. 951/2, pars. 6 — 303, 11 — 1204(b).) He was sentenced by the circuit court of Peoria County to serve 14 days in the county jail and to pay a $3 fine. The defendant appeals.

An agreed statement of facts by the parties indicated the following. At arraignment, the court read the defendant the charges that had been brought against him. The defendant entered a plea of not guilty and was advised that a public defender was available to represent him if he could not afford to hire an attorney. The defendant completed an affidavit of assets and liabilities.

At a subsequent pretrial appearance, the court found that the defendant qualified for representation by the public defender. The defendant, however, declined that appointment and stated he felt that he would not be properly represented by the public defender. The defendant then stated that he would represent himself. The court advised him of the penalties that could be imposed on his conviction but made no inquiry regarding the defendant’s objection to representation by the public defender. The defendant still desired to proceed pro se, and the court allowed him to do so.

On appeal, the defendant argues that he was denied his constitutional right to counsel because the trial court allowed him to proceed pro se without ascertaining whether his objection to representation by the public defender entitled him to appointment of other counsel. In response, the State argues that the trial judge properly allowed the defendant to proceed pro se because the defendant knowingly and intelligently waived his right to counsel.

The right to counsel in a criminal trial is guaranteed by both the constitutions of the United States and the State of Illinois. (U.S. Const., amend. VI; Ill. Const. 1970, art. I, sec. 8.) Waiver of this right must be knowing, intelligent, and unequivocal. (Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525.) In Illinois, waiver of the right to counsel by a criminal defendant is governed by Supreme Court Rule 401(a) (87 Ill. 2d R. 401(a)). Rule 401(a) provides in pertinent part that:

“(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.”

This rule provides a procedure which precludes a defendant from waiving his right to counsel without full knowledge and understanding. The purpose of the rule is to eliminate any doubt concerning the validity of a defendant’s waiver. People v. Brown (1980), 80 Ill. App. 3d 616, 399 N.E.2d 1374.

In the case at bar, it is evident from the agreed statement of facts that the trial court fully complied with Supreme Court Rule 401(a). The trial court read to the defendant the charges against him and advised the defendant of the possible penalties if he was convicted. At arraignment, he was advised that the public defender was available if he could not afford an attorney and he was instructed to fill out an affidavit of assets and liabilities. At the subsequent appearance, the defendant was advised that he qualified for representation by the public defender. However, the defendant declined that appointment and insisted on representing himself.

We believe that the thrust of the defendant’s argument is that while the trial court complied with the letter of Rule 401(a) it failed to comply with the spirit of Rule 401(a). The defendant contends that when he declined appointment of the public defender the trial judge should have informed him about the possibility of alternative counsel being appointed. The defendant further contends that the failure to do so prevented him from attempting to show good cause for appointment of alternative counsel. We do not agree.

First, it is clear from the express language of Supreme Court Rule 401(a) that the trial judge had no duty pursuant to that rule to inform the defendant about the possibility of the appointment of alternative counsel. There simply is no such requirement, and we decline to create one.

Secondly, it is true that there are circumstances in which alternative counsel may be appointed. Thus, “if the defendant requests counsel other than the Public Defender and the court finds that the rights of the defendant will be prejudiced by the appointment of the Public Defender,” the court will appoint other counsel. (Ill. Rev. Stat. 1983, ch. 38, par. 113 — 3.) In the present case, however, the defendant simply stated that he felt he would not be properly represented by the public defender. We do not construe that remark to be a request for other counsel. Furthermore, it is apparent that the trial court was not of the opinion that the defendant would be prejudiced by appointment of the public defender.

We hold that the trial court fully complied with the requirements of Supreme Court Rule 401(a) and that the defendant knowingly and intelligently waived his right to appointed counsel.

For the foregoing reasons, the decision of the circuit court of Peoria County is affirmed.

Affirmed.

BARRY and STOUDER, JJ., concur.