text:
      In re ESTATE OF MINNIE F. MURPHEY, Deceased (Rosemary Johnson et al., Objectors-Appellees, v. Miriam Freeman, Ex’r of the Will of Minnie F. Murphey, Deceased, Respondent-Appellant).
    Fourth District
    No. 4—84—0552
    Opinion filed February 15, 1985.
    Rudasill & Rudasill, of Clinton (A. J. Rudasill, of counsel), for appellant.
    Downing, Smith, Jorgensen & Uhl, of Decatur (James A. Uhl, of counsel), for appellees.
   JUSTICE WEBBER

delivered the opinion of the court:

Miriam Freeman, executor of the will of Minnie F. Murphey, filed her final account in the circuit court of De Witt County. Two of three residuary beneficiaries under the will filed objections to that account. Both the executor and the objectors filed motions for summary judgment. After submission of authorities and a hearing, the trial court allowed the objectors’ motion and denied that of the executor, who appeals. We reverse.

There is no dispute over the facts or the law in this case. The core of the controversy is the application of certain provisions of the Internal Revenue Code and parallel provisions in Illinois tax law concerning “family farm” or “special use” valuation of farmland.

In broad outline the Murphey will devised a 160-acre farm to the executor and her sister, Martha Lepp, who were nieces of the testator; the residue of the estate was bequeathed to three others, a niece, a nephew, and a grandniece. The will made no special provision for payment of taxes; therefore, each beneficiary became personally liable for the Illinois inheritance tax on the interest received, and the Federal estate tax became payable out of the residue.

It is not our purpose to explore the labyrinthine convolutions of either tax law. Suffice it to say that under section 2032A of the Internal Revenue Code (26 U.S.C. sec. 2032A (1981)) and under section 1 of “An Act to tax gifts, legacies, inheritances, transfers ***” (Ill. Rev. Stat. 1981, ch. 120, par. 375 et seq.), an executor has an option on the question of valuation of farmland. He may value it as a “family farm” or “special use,” in which case there is a substantial reduction in tax. In the instant case under the Federal law the special use valuation would yield a value of $70,545; if the special use were not elected, fair market value would be the standard, and in the instant case would yield a value of $205,750. The difference in Federal tax in the instant case would be $32,753.56.

As is the case with nearly all tax concessions, the one with which we are concerned here is surrounded by conditions. The special use valuation is available only to qualified “family farms” which passed to “qualified heirs.” The farmland and heirs involved here met these initial qualifications. If special use valuation is elected by the executor (and only the executor can make the election), the election must be accompanied by proof that the estate property is a qualified “family farm” that has been devised to qualified heirs. Furthermore, the election must be accompanied by an agreement signed by each qualified heir who has inherited an interest in the family farm. The agreement provides for a “recapture tax” payable by the qualified heirs should the farmland cease to remain in the family or should family members cease to materially participate in its operation during the next 10 years. The “recapture tax” would be equivalent in amount to the Federal estate tax saved by electing the special use valuation.

The executor filed a Federal estate tax return in which she indicated that she declined the section 2032A election. Therefore, for Federal tax purposes, fair market value was used. She took the opposite tack regarding the Illinois inheritance tax. In that return she did elect the special use valuation. She attached an affidavit establishing the qualified nature of the farm and of the heirs; she also attached an agreement signed by herself and Martha Lepp whereby they agreed and consented to personal liability for the “recapture tax” in the event the farm ceased to qualify during the ensuing 10 years. The tax saving for each of them under Illinois law was approximately $7,000.

The executor filed her final account and two of the three residuary beneficiaries filed objections thereto. They claimed that the executor had breached her fiduciary duty to the estate and to the beneficiaries by not making the special use election; since the Federal tax was paid out of the residue, they asked that she be surcharged with the amount by which that tax was inflated for failure to make the election, that is, $32,753.56; they also asked that she be removed as executor and her executor’s fee of $6,000 be disallowed.

On the date set for hearing on the objections, both sides filed motions for summary judgment. The executor’s motion asked that the objections be overruled. The objectors’ motion reiterated their objections set forth above.

The trial court allowed the objectors’ motion and denied that of the executor. It found that the executor had a conflict of interest and had breached her fiduciary duty. It surcharged her $32,753.56, disallowed her fee, and removed her as executor. Upon a motion to reconsider, the court vacated that portion of its judgment which removed the executor, but otherwise confirmed it. The court also ordered the executor to file an amended final account, including the surcharge plus interest.

In its separate memoranda of opinion filed by the trial court upon the original hearing and upon the hearing on reconsideration, the court emphasized that it was basing its decision on what it perceived to be a conflict of interest in the executor. However, those memoranda fail to distinguish between an actual conflict and a potential conflict.

The executor concedes that a potential conflict of interest existed but argues that it never ripened into an actual conflict. We agree. Attached to the executor’s motion for summary judgment is the uncontradicted affidavit of Martha Lepp, the other “qualified heir.” In that instrument she stated that she had been informed by the attorney for the estate of the provisions of the Internal Revenue Code regarding special use and personal liability for the recapture tax and that she then informed the attorney that she would not sign the required agreement. Patently, without Lepp’s agreement, the whole question of special use valuation became academic, and no alternative to fair market evaluation of the farm existed.

It is arguable that Lepp’s position was inconsistent; that she signed an agreement for purposes of Illinois inheritance tax but refused to do so for purposes of Federal estate tax. Such is undoubtedly the case, but it results from the difference in the nature of the two taxes. The Federal estate tax is an excise tax on the entire estate, payable from the residue unless some apportionment provision exists; the Illinois inheritance tax is a personal tax upon the interest received, payable by the recipient personally. Lepp could never reduce her Illinois tax without signing the agreement; however, she could reduce her potential liability for Federal tax by refusing to sign the agreement and thus inflating legally the amount required to be borne by the residue. It was nothing more than the practical operation of Judge Learned Hand’s statement, “Any one may so arrange his affairs that his taxes shall be as low as possible.” Helvering v. Gregory (2d Cir. 1934), 69 F.2d 809, 810.

Since no actual conflict ever arose, we disagree with the trial court’s overbroad statement in its memoranda that when a conflict became apparent, the executor should have petitioned the court for instructions in order to relieve herself “of the onus of conflict.” If an actual conflict materialized, such action would be appropriate, but to extend the dogma to every potential conflict is to require too much of testators and their fiduciaries. It is not unusual for an executor, generally a family member, also to be a beneficiary under a will. The very status, without more, carries with it great potential for conflict. If such potential is to be the basis for removal of an executor, the testator will be deprived of free choice in the selection of a fiduciary. If such potential is to be the basis for a petition for instructions every time it occurs, our already burdened court system will endure another addition to its load.

In the present case a genuine conflict of interest never arose because Lepp refused to agree to subject herself to possible recapture tax liability. Her refusal was well-informed, logical, and in her own best interest. As a result of Lepp’s refusal, the executor was never faced with the decision of whether or not to elect special use valuation for Federal estate tax purposes, and a genuine conflict of interest situation never materialized. Petitioning the court for instructions, in this case, would have changed nothing. Since the executor was never faced with the decision of whether to elect special use valuation, an actual conflict of interest on her part never arose and there was no “onus of conflict” for the circuit court to relieve her of. The executor did not actually make a decision that adversely affected the interests of the residuary beneficiaries. She was not guilty or chargeable with any breach of fiduciary duty.

It remains to be decided what disposition we ought to make of this case. The executor in her brief asks us to reverse the order in favor of the objectors and direct the trial court to approve the payment of the Federal tax as shown in the final account on. file and to approve the executor’s fee; she also asks that additional fees be allowed to her and to her attorneys on account of this appeal. All questions of executors’ fees are beyond the purview of this court and belong properly in the trial court. If any additional fee be allowed by that court, the final account would necessarily be recast. The proper order in this court therefore must be: the order of the circuit court of De Witt County allowing summary judgment in favor of the objectors is reversed and the cause is remanded to that court for further proceedings, if any in accordance with the views expressed in this opinion.

Reversed and remanded.

MILLS and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MILLS

license: Public Domain

text:
    WILLIAM GRASS et al., Plaintiffs-Appellees, v. GERALD HOMANN, d/b/a B & R Enterprises, Defendant-Appellant.
    Fourth District
    No. 4—84—0022
    Opinion filed October 11, 1984.
    Modified on denial of rehearing March 7, 1985.

      Joseph P. Smith, Jr., of Mattoon, for appellant.
    M. John Hefner, Jr., of Harlan Heller, Ltd., of Mattoon, for appellees.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

False termite inspection report.

Suit sounding in negligence and consumer fraud.

Neither theory applies here.

Reversed and remanded.

William and Yolanda Grass bought a home at 908 Lafayette in Mattoon. The home was financed by Paul Shafer, who bought it from David and Sheryl Crawford, and then resold it to the Grasses for his purchase price—plus $1,000. Yolanda Grass wanted the home inspected for termites and termite damage before consummating the deal. On June 13, 1977, William Bright of B & R Enterprises conducted a termite inspection and gave a termite inspection certificate to the Crawfords.

Two aspects of the certificate are pertinent here. First, the certificate stated that B & R Enterprises was bonded, which it was not. Second, the certificate stated that the home was free from termites and needed no repairs because of these pests. In fact, most of the support system for the entire home—including the floor joists and main weight-bearing timbers—was entirely eaten away with termite damage. Bright admitted at trial that the conditions were known to him at the time he issued and signed the certificate.

Plaintiffs first became aware of the termite damage in June of 1979, when the floors of the home began pulling away from the walls. They brought suit against Bright in 1981 and received a judgment which Bright discharged in bankruptcy.

Plaintiffs then brought the instant suit against Gerald Homann. They alleged that at the time the certificate was issued, Homann was a partner of Bright’s in B & R Enterprises. The complaint was stated in four counts. Count I alleged that B & R had breached an agreement with David Crawford, which agreement had been entered for the benefit of the Grasses, and sought damages in an amount exceeding $15,000. Count II alleged that William Bright, acting on behalf of B & R Enterprises, had negligently and carelessly performed a termite examination of the home, which negligence had damaged the plaintiffs in an amount exceeding $15,000. Count III alleged that William Bright wilfully and wantonly failed in his responsibility to perform a termite inspection of the premises, thereby damaging plaintiffs in an amount exceeding $15,000 and creating a liability for $50,000 in punitive damages. Count IV stated the existence of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1983, ch. 1211/2, par. 261 et seq.) and alleged that B & R Enterprises had violated the Act by misrepresenting to the plaintiffs the absence of termite damage and in issuing a certificate which bore the untrue assertion that B & R Enterprises was bonded and insured, when in fact it was not bonded. This count alleged that plaintiffs had been damaged in an amount exceeding $15,000 and also sought attorney fees.

Following a trial on all the issues, an instruction conference was held. At this time plaintiffs’ counsel moved that count I (the count sounding in contract) be voluntarily dismissed. The motion was granted. Defense counsel moved that count III, seeking punitive damages, be dismissed. That motion was also granted, leaving for the jury count II, sounding in negligence, and count IV, alleging the violation of the Consumer Fraud and Deceptive Business Practices Act.

After settling on the appropriate instructions, both counsel gave closing arguments to the jury. During his closing argument, plaintiffs’ attorney asked the jury to determine whether the defendant had been negligent or had violated a statute. He told them that they were to be put to a choice and could not find that the defendant had been both negligent and had violated the statute. He suggested that the evidence more strongly supported a finding based on the statutory violation.

Defense counsel gave his closing argument and the jury was instructed. After deliberations, the jury returned two verdict forms, both favoring plaintiffs. The jury found that the defendant had been negligent in his inspection of the home and set damages at $11,600. The jury also found that the defendant had violated the Consumer Fraud and Deceptive Business Practices Act and fixed damages for that violation at $2,500.

After the judgment was entered, an appeal was filed. But this court dismissed the appeal because the trial court had reserved its ruling on attorney fees sought in count II. Following a hearing on attorney fees, the court eventually decided that plaintiffs were entitled to 35% of the entire verdict as attorney fees, based on a contingent fee arrangement between the plaintiffs and their attorney.

Defendant now appeals from both the judgment and the order for attorney fees.

We reverse.

Defendant’s counsel—in an inarticulate, disjointed, and poorly researched effort at appellate advocacy—has alluded to numerous factors upon which he apparently relies in seeking relief for his client. (We note that during oral argument, counsel was uncertain as to exactly what type of relief was desired: reversal, remandment, or remittitur.) We have reluctantly concluded that this cause must go back for a new trial, although on grounds not raised by either party to this appeal.

As previously mentioned, plaintiffs took a voluntary dismissal of the count sounding in contract and chose to go to the jury on the counts sounding in negligence and statute. In our opinion, the loss suffered by plaintiffs in this case is simply not compensable through a cause of action sounding in negligence, and the proofs were insufficient to allow recovery under the statute.

I. NEGLIGENCE

Plaintiffs here purchased a home which defendant’s partner certified to be free of termites and termite damage. In fact, the home they purchased had been riddled by termites. We take judicial notice of the fact that a home which is indisputably in need of substantial repairs at the time of purchase is worth considerably less than a home which does not require such repairs. In other words, plaintiffs paid more for this property than it was worth. The reason they paid more was that defendant’s partner certified to them that the home had no termite damage. Defendant’s partner caused plaintiffs to suffer a purely economic loss. At no time did any action of defendant’s partner cause property damage through negligence.

In Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 86, 435 N.E.2d 443, 450, our supreme court stated unequivocally that “[t]ort theory is appropriately suited for personal injury or property damage resulting from a sudden or dangerous occurrence ***. The remedy for economic loss, loss relating to a purchaser’s disappointed expectations due to deterioration, internal breakdown or nonaccidental cause, on the other hand, lies in contract.”

The court held that the tort theories of strict liability, negligence, or innocent misrepresentation could not support a cause of action which sought the recovery of purely economic losses. This left open the tort of negligent or intentional misrepresentation as a possible vehicle to support such a recovery. We are of the opinion, however, that plaintiff’s complaint—as well as the facts underlying the complaint—is insufficient to state a cause of action for negligent or intentional misrepresentation.

It is well established that in Illinois there is no cause of action for negligent misrepresentation unless the defendant is in the business of supplying information for the guidance of others in their business transactions with third parties. (Knox College v. Celotex Corp. (1983), 117 Ill. App. 3d 304, 453 N.E.2d 8.) Furthermore, courts have allowed the named third parties to assert claims of tortious misrepresentation where the document relied upon contained an unequivocal guarantee of accuracy. Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656.

Turning to the facts of this case, William Bright delivered the certificate in question to Paul Shafer, a person not the plaintiff in this case. The record contains a letter from plaintiffs to Paul Shafer indicating that he furnished the certificate to plaintiffs. Further, the certificate is addressed “To Whom it May Concern” and bears no guarantee of accuracy whatsoever. Under these circumstances, we are of the opinion that plaintiffs may not state a cause of action for negligent misrepresentation against defendant. Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656.

While it is most unusual for a court to decide a case based on matters not directly raised by the parties, such a course of action is appropriate where the concern is the maintenance of a uniform body of precedent. (Pritz v. Chesnul (1982), 106 Ill. App. 3d 969, 436 N.E.2d 631.) Since this principle is decidedly at issue here, we take that unusual path and reverse and remand for a new trial to determine whether Homann may be held liable for a breach of contract entered and executed by his partner, Bright. In our opinion, remanding for rehearing is justified both because of the unusual path taken in reaching our decision and the radical change in the law rendered by our supreme court in Moorman.

II. STATUTORY VIOLATION

In addition to seeking compensatory damages for Bright’s “negligence,” the Grasses also sought damages and attorney fees under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1983, ch. 121V2, par. 261 et seq.). The factual basis of the complaint was that while the termite inspection certificate bore the terms “Bonded and Insured,” the partnership was, in fact, not bonded, and also that the certificate signed by Bright contained misrepresentations concerning termite damage present in the home.

While defendant’s sole contention of error on appeal is that the trial court erred in instructing the jury concerning possible violations of the Consumer Fraud Act, it is apparent that the real gist of his argument is that the facts proved at trial did not bring the defendant within the purview of the Act. We agree.

While the Consumer Fraud Act itself is painted in broad strokes, we do not feel that the instant case is part of the scene. The Act provides:

“[Deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact *** are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.” (Ill. Rev. Stat. 1983, ch. 121V2, par. 262.)

When a person is damaged by a violation of section 2 (par. 262), he may bring a cause of action and receive actual damages or other relief. Ill. Rev. Stat. 1983, ch. 1211/2, par. 270a.

Other courts construing this Act have dutifully noted its broad scope and sounded the paean of liberal construction. (Hurlbert v. Cottier (1978), 56 Ill. App. 3d 893, 372 N.E.2d 734.) We are, however, not convinced that the Act was intended to extend to every transaction between contracting parties. In Exchange National Bank v. Farm Bureau Life Insurance Co. (1982), 108 Ill. App. 3d 212, 438 N.E.2d 1247, the court observed that the Act should not be construed to apply to a controversy which involved nothing more than an isolated breach of a contract. The court further noted, and we agree, that if such a construction were adopted, “common law breach of contract actions would be supplemented in every case with an additional and redundant remedy. Such is not the intention of the Consumer Fraud Act.” 108 Ill. App. 3d 212, 216, 438 N.E.2d 1247, 1250.

In addition to the previously stated position that simple breach of contract actions should generally not give rise to private causes of action under the Consumer Fraud Act, two factual matters in the instant cause cement our views here. First, it is apparent that B & R Enterprises was only tangentially involved with the consumer transaction which is at the heart of this matter, the Grass’ purchase of a home. We feel that a greater nexus must be shown and that the alleged violator of the Act must have been involved in, and stood to benefit from, the ultimate transaction which his actions influenced. Here, there was no such showing.

Second, turning to the false representation that B & R Enterprises was bonded, we fail to see how that fact, standing alone, in any way damaged plaintiffs here. They bought a home which was worth considerably less than they thought by virtue of their reliance on a third party’s representations. The fact that they thought some sort of bond was in place cannot be said to have damaged them.

Since there was no actual damage to the plaintiffs here, there can be no recovery under the Act. Therefore, the order of the trial court awarding plaintiffs $2,500 in damages for violation of the Consumer Fraud Act must be reversed. Similarly, the award of attorney fees which was based on the provisions of the Act must also be reversed.

III. PARTNERSHIP LIABILITY

We turn now to the issue pressed preeminently by the parties in this appeal: whether a partner may be held separately liable for a contractual breach committed by another partner engaged in a partnership business.

We conclude that he may.

This action was commenced by the filing of a complaint on September 21, 1981. At that time, the Civil Practice Act was still in effect. Section 27 of the Act (Ill. Rev. Stat. 1981, ch. 110, par. 27) (now Ill. Rev. Stat. 1983, ch. 110, par. 2—410) deals with actions against joint debtors or partners. It provides:

“All parties to a joint obligation, including a partnership obligation, may be sued jointly, or separate actions may be brought against one or more of them. A judgment against fewer than all the parties to a joint or partnership obligation does not bar an action against those not included in the judgment or not sued.” Ill. Rev. Stat. 1981, ch. 110, par. 27.

When Bright contracted with the Grasses, he created a partnership obligation which he admittedly failed to perform. At the time of the undertaking, Homann was Bright’s partner in B & R Enterprises. As such, he was a party to a partnership obligation. The prior suit against Bright does not bar this subsequent suit against Homann, since the judgment there was not satisfied by virtue of having been discharged in bankruptcy.

In conclusion, we must reverse and remand since this cause sought recovery of purely economic damages while purporting to state a cause of action in negligence. The cause may be brought—in contract—ag&mst Homann as a party to a partnership obligation.

Reversed and remanded.

TRAPP and WEBBER, JJ., concur.


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAURICE ALLAN SAYLES, Defendant-Appellant.
    Fourth District
    No. 4—84—0370
    Opinion filed February 7, 1985.

      Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Michael Blazicek, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

The defendant was charged by indictment in Champaign County with the offenses of burglary and theft in violation of sections 19—1 and 16—1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 19—1 and 16—1). Following a jury trial, he was convicted of burglary and was sentenced to seven years’ imprisonment. The conviction and sentence occurred in absentia. Defendant appeals from his conviction. The State has moved to dismiss this appeal because the defendant remains a fugitive at this time. We have taken this motion with the case. We now deny the motion to dismiss the appeal and affirm the judgment of the trial court.

On December 1, 1983, defendant was charged by indictment with the offenses of burglary and theft. The theft charge was later dismissed upon the motion of the State. Defendant had been released from custody after posting a $250 cash bond. He subsequently appeared at the December 6, 1983, arraignment and pleaded not guilty. At that time he was admonished that if he failed to appear at trial when required, such failure would constitute a waiver of his right to confront the witnesses against him and that the trial could proceed in his absence. The record reflects that defendant was represented by a Champaign County assistant public defender. The record also reflects that the arraignment hearing was the defendant’s last court appearance. He did not appear for his February 14, 1984, trial and, at the time of this appeal, he remains at large.

On January 27, 1984, the cause was set for trial. Defense counsel appeared without the defendant on February 14, 1984, the scheduled trial date. Upon the defendant’s failure to appear, the State moved for a bench warrant to issue for defendant’s arrest. This motion was granted by the trial court, and the warrant was issued. The State also requested a trial in absentia.

On February 24, 1984, a hearing was held on the State’s motion to try defendant in absentia. The motion was granted, and a jury trial was scheduled for April 18,1984.

On April 18, 1984, prior to the commencement of the trial, defense counsel moved for a continuance stating that she had never met or spoken with the defendant. (Another assistant public defender had originally represented the defendant, and he had subsequently terminated his employment with the public defender’s office.) The motion was denied.

Also prior to trial, in a ruling in limine, the court held that evidence concerning another burglary allegedly committed by the defendant would be admissible. Defendant had been charged by information with this alleged incident; however, the charge was subsequently dismissed by the trial court since defendant had never been arraigned on it.

The testimony at trial indicated that a burglary occurred at the Illini Towers student housing facility in Champaign on November 24, 1988, which was Thanksgiving Day. John Betterman, a resident assistant at Illini Towers, testified that he was doing maintenance work in the building on November 24, 1983. At approximately 1 p.m., he noticed a man in an elevator carrying a television, a portable stereo, and a canvas bag. The man appeared “flustered” because he could not properly operate the elevator. Betterman identified a picture of the defendant as the same man who was in the elevator. Betterman testified that he subsequently reported the incident to his supervisor, Tina Frighetto. Betterman then accosted the man outside of the building as he was mounting a bicycle, still holding the stereo and canvas bag but without the television. Betterman asked the man why he was in the building, and the man responded that he was visiting “Nancy Carter.” He then left on his bicycle, traveling east. Betterman returned to the building and asked Frighetto if a “Nancy Carter” lived in the housing facility. She responded that no such person lived there. Betterman then left to pursue the suspect on foot while Frighetto telephoned the police. Betterman was subsequently picked up by an Urbana police officer who had responded to Frighetto’s call. From the squad car, Betterman identified the defendant as he rode his bicycle, and the defendant was arrested soon after.

Betterman later returned to Illini Towers with Detective Gary Wright of the Champaign police department. Together they located a television in a garbage dumpster near where Betterman had seen the defendant mounting his bicycle. Betterman and Frighetto later checked all of the rooms in the 16-story building and discovered that a room on the 13th floor had a door with a broken lock. The door had apparently been forced open.

Frighetto testified that she was the resident director at Illini Towers. She stated that special security procedures were taken over the Thanksgiving vacation. Of the 600 residents, only 15 to 20 remained at Illini Towers on Thanksgiving Day. All entrances to the building were locked. Persons without a key were required to “buzz” the front desk and then show an Illini Towers’ identification card or be escorted by a resident of the building. Frighetto also stated that a few University of Illinois employees worked in second and third floor offices in Illini Towers. A few were working on Thanksgiving Day. Frighetto also acknowledged that entry to the building could be obtained by waiting outside the stairwell doors until someone exited there and then catching the door before it closed and automatically locked. Frighetto also corroborated Betterman’s testimony as to the occurrences on November 24,1983.

Officer William Blackmon of the Urbana police department testified that he responded to a radio dispatch on November 24, 1983, that indicated a theft had just occurred at Illini Towers and that the suspect was traveling east (toward Urbana) on a bicycle. He drove to the area and spotted a bicyclist fitting the suspect’s description, carrying a canvas bag and a portable stereo. He then observed Betterman chasing the suspect. Blackmon asked Betterman to get into his squad car, and they soon apprehended the defendant. Blackmon identified the defendant from a photograph shown to him at trial.

Detective Gary Wright of the Champaign police department testified that he took custody of the defendant at the scene of his apprehension by the Urbana police. At the time, defendant had a large portable stereo in his possession. He also had a canvas bag which contained some cassette tapes, a light bulb, a poster, two screwdrivers, two bottles of cologne, a telephone, and two packages of frozen meat. Wright testified that the meat was frozen solid at the time defendant was apprehended. Wright later returned to Illini Towers and discovered a television in an outside dumpster. Wright testified that defendant stated, “I don’t know why I do these things” in response to Wright’s request for his name. Wright identified a photograph at trial as a picture of the defendant.

Gayle Goldsmith testified that she lived in room 1305 at Illini Towers. During Thanksgiving vacation she and her roommate, Elise Buckely, left their room locked. When she returned she noticed that the door to their room had been forced open and that her television, portable stereo, and several cassettes were missing. She later identified these items, at the police station, as the television that Wright had found in the dumpster and as the stereo and cassettes found in the defendant’s possession. Goldsmith stated that she had given no one permission to enter her room. Elise Buckely corroborated and reiterated Goldsmith’s testimony.

Over defense counsel’s objection, David Willoughby testified that he lived in the Illini Manor apartment building, next door to Illini Towers. He stated that he left his apartment on Tuesday, November 22, 1983, and returned on Monday, November 28, 1983. Upon his return he noticed that his television and stereo had been placed on his kitchen counter. Other of his possessions were scattered around his apartment. He identified the State’s exhibits Nos. 5 through 9, 12, and 13 as being, respectively, his telephone, his two bottles of cologne, his light bulb, his poster, and his two packages of frozen meat. All of these items were in his apartment when he left and were missing when he returned. He had given permission only to James Nogle to enter his apartment during his absence.

James Nogle testified that he was the manager of the six-story Illini Manor student apartment building. He entered David Willoughby’s apartment to perform maintenance work on Wednesday, November 23, 1983, and observed nothing out of the ordinary. He returned on Monday morning, November 28, 1983, and noticed the television and stereo on the kitchen counter. The rest of the apartment was “very messy.” Nogle also noticed that a bedroom window screen had been ripped from top to bottom. Upon Willoughby’s return, Nogle suggested that he call the police.

During the closing argument of the prosecution, defense counsel objected to the assistant State’s Attorney’s remarks about the failure of defense counsel to call Nancy Carter to testify. The objection was overruled by the trial court.

A sentencing hearing was held, in absentia, on May 21, 1984. Defendant was sentenced to seven years’ imprisonment. On May 25, 1984, defense counsel filed timely notice of appeal on defendant’s behalf.

Before reaching the issues of trial error alleged by the defendant, we shall deal with the State’s assertion that this appeal should be dismissed.

The State first contends that a case may not be appealed until a final judgment has been rendered and that a conviction and sentence in absentia do not constitute a truly final judgment. Pursuant to section 115—4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 115—4.1), a defendant convicted in ab sentía may be entitled to a new trial, upon application to the trial court, if he can establish that his failure to appear in court was both without his fault and due to circumstances beyond his control. The State concludes that this statutory provision makes the conviction and sentence of a defendant tried in absentia nonappealable until the defendant has returned and a ruling is made on any claim under section 115—4.1. The State urges this court to follow the decision of the Appellate Court for the Second District in People v. Brown (1984), 121 Ill. App. 3d 776, 459 N.E.2d 1175, in this regard.

In Brown the court held that, in light of section 115—4.1, a judgment of conviction of a defendant in absentia is not a final and appealable order. The court emphasized the fact that the statute provides that a defendant convicted in absentia “must” be granted a new trial if he appears before the court and establishes at a hearing that his failure to appear was due to circumstances beyond his control and was not his fault.

Two other districts of the appellate court have reached a different conclusion in construing the effect of section 115—4.1 with regard to the appealability of a conviction or sentencing in absentia.

In People v. Stark (1984), 121 Ill. App. 3d 787, 460 N.E.2d 47, the Appellate Court for the Fifth District held that a conviction and sentencing in absentia was an appealable judgment. The court stated that section 115—4.1 “merely provides defendant with an additional means of securing a new trial,” and was not meant to “preempt” a defendant’s right to appeal an otherwise final judgment. (121 Ill. App. 3d 787, 790, 460 N.E.2d 47, 49.) The court stated that parallel proceedings may occur when a defendant directly appeals the merits of his conviction and also files a section 115—4.1 motion. The court noted that there is nothing in the statute stating that such a motion is a condition precedent to an appeal and, indeed, a defendant may never choose to file such a motion.

As a practical matter, the court in Stark also held that it was proper for defense counsel, in a defendant’s absence, to file notice of appeal without consulting the defendant. “Just as defendant’s prior approval is not required before counsel validly exercises professional judgment in matters of trial tactics, so too is such prior approval unnecessary when counsel exercises professional judgment and files a notice of appeal.” 121 Ill. App. 3d 787, 789, 460 N.E.2d 47, 48.

In People v. Muir (1983), 113 Ill. App. 3d 1096, 448 N.E.2d 233, the Appellate Court for the Third District also held that section 115— 4.1 did not render an otherwise final in absentia judgment nonappealable. The court noted that the State could cite no authority that would indicate that the statutory right to request a new trial or sentencing hearing by a defendant convicted or sentenced in absentia affects the finality of his judgment of conviction. The court stated that since the defendant had never requested relief under section 115—4.1, the fact that he had elected to pursue his right of appeal directly served to waive any rights he had under the statutory procedure.

We agree with the holdings in Stark and Muir that section 115— 4.1 does not render an otherwise final conviction and sentence in absentia nonappealable. In our opinion a proceeding under section 115— 4.1 after an appeal has been prosecuted in absentia is another species of post-conviction relief.

Since it is unnecessary to our disposition of this case, we offer no opinion on the matters of waiver of the statutory right suggested by the Muir court, nor of the possibility of parallel proceedings suggested by the Stark court. We note that in Stark the defendant had been apprehended and was actively participating in the appeal; defendant’s activity is less clear from the opinion in Muir, but the fair inference is that he was actively participating.

In the present case, we believe that the defendant waived his right to proceed under section 115—4.1 when defense counsel chose to file a notice of appeal from his conviction. Defense counsel acted as a representative of the defendant in electing to file the notice of appeal, and this election is binding upon the defendant even where, as here, he was not consulted about the decision. People v. Stark (1984), 121 Ill. App. 3d 787, 460 N.E.2d 47.

In an alternative argument for the dismissal of this appeal, the State argues that where a defendant is currently a fugitive from the custody of the law of Illinois, the better practice is to dismiss the appeal. The State relies on People v. Estep (1952), 413 Ill. 437, 109 N.E.2d 762, for this proposition. The parties agree that a fugitive defendant has no constitutional right to an appeal. (Molinaro v. New Jersey (1970), 396 U.S. 365, 24 L. Ed. 2d 586, 90 S. Ct. 498; People v. Estep (1952), 413 Ill. 437, 109 N.E.2d 762.) However, the supreme court in Estep stated that it is within the discretion of the reviewing court to hear the appeal under these circumstances. Under the circumstances of this case and in light of the enactment of section 115— 4.1 after the Estep opinion, we choose to decide this appeal on its merits and deny the State’s motion to dismiss it.

Defendant first claims that the trial court improperly denied his motion for a continuance made on the date of his trial. Defendant agrees that a motion for a continuance is addressed to the trial court’s discretion; however, he argues that that discretion is abused when the court denies a continuance where defense counsel is unprepared, with just cause, and where the additional time would allow counsel to prepare.

It is clear that this case was originally scheduled for trial on February 14, 1984. At that time defendant was represented by Assistant Public Defender James Padish. When defendant failed to appear for trial, a trial in absentia was scheduled for April 18, 1984. At some point before the April trial, James Padish left his position with the public defender’s office and he was replaced as counsel in this case by Assistant Public Defender Diana Lenik. On April 18, 1984, she argued that a continuance should be granted since she had never met or spoken with the defendant.

It is well settled that a continuance for the purpose of allowing counsel further time to prepare is not erroneously denied unless it serves to prejudice the defendant in some way. (People v. Wilson (1963), 29 Ill. 2d 82, 193 N.E.2d 449; People v. Griffiths (1983), 112 Ill. App. 3d 322, 445 N.E.2d 521.) Here, the denial of a continuance for the purpose of allowing defense counsel to meet with defendant could not have prejudiced defendant in the presentation of his case. Defendant was a fugitive from justice and could not be found despite a concerted effort by Champaign County law enforcement officials. There were simply no facts that would indicate that defendant would be located or be able to speak with defense counsel in the near future. The presentation of defendant’s case was prejudiced by his failure to appear and not by the trial court’s decision to deny the continuance.

Furthermore, the Champaign County public defender’s office had been appointed to represent the defendant in December 1983. It had ample time to prepare for trial in ways other than speaking with the defendant. Allowing defense counsel an indefinite continuance in order that she might, at some future time, speak with the defendant would serve no useful purpose under the circumstances of this case. Accordingly, the trial court did not abuse its discretion in denying defense counsel’s request for a continuance.

Defendant next argues that the trial court improperly ruled that evidence of another burglary, for which the charge was dismissed, was admissible to show defendant’s common scheme and intent as to the instant burglary.

It is clear that evidence of other offenses is admissible if relevant for any purpose other than to show a propensity to commit crime. (People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821.) The probative value of such evidence must also outweigh its prejudicial effect. People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.

Here, the trial court ruled that evidence of the Illini Manor burglary was relevant to show a common scheme as well as defendant’s intent to commit the Illini Towers burglary. A common scheme was established by the fact that the buildings entered were next door to each other, the burglaries occurred at approximately the same time, and both involved breaking into student housing during Thanksgiving vacation. The evidence also showed that the packages of meat taken from the Illini Manor apartment were still frozen solid at the time that defendant was apprehended. This, when coupled with the fact that defendant was followed nearly continuously after leaving Illini Towers, suggests that defendant committed the Illini Manor burglary immediately prior to entering Illini Towers. Such evidence was relevant to show that at the time defendant entered Illini Towers, he intended to commit another burglary.

Furthermore, in light of the overwhelming evidence of defendant’s guilt, it is clear that the evidence of the Illini Manor burglary could not have greatly prejudiced the defendant. Under these circumstances, we conclude that the trial court did not err in admitting this evidence since its probative value outweighed any prejudicial effect.

Finally, defendant contends that the assistant State’s Attorney’s closing argument was improper. He claims that the prosecution made an improper reference to the defendant’s failure to call a witness that was equally available to both parties when it was stated:

“What if Nancy Carter, whoever she is, *** invited [defendant] in? Where is she today? Where is she to testify?”

The State responds that this comment was invited by statements that defense counsel made earlier in her closing argument, specifically:

“[W]e don’t know that there was no Nancy Carter who worked on the second and the third floor, who for whatever reason, because this was the person [defendant] was going to see, let him into the building to talk with her.
I think that’s what happened.”

In general, it is improper for the prosecution to comment on defendant’s failure to produce a witness unless the witness is an alibi witness injected into the case by the defendant. (People v. Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d 247.) It is also clear that a defendant ordinarily cannot claim error where the prosecutor’s remarks were in response to and invited by remarks in defense counsel’s argument. (People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180.) Here, defense counsel suggested in her closing argument that defendant had entered Hlini Towers with the intent to visit Nancy Carter and not with the intent to commit a burglary. Since defense counsel wished the jury to believe that Nancy Carter could have provided defendant with an alibi, the prosecutor’s closing remark was invited by defense counsel and was not error.

In any event, defendant was not substantially prejudiced by the prosecutor’s comment. (See People v. Nilsson (1970), 44 Ill. 2d 244, 255 N.E.2d 432, cert. denied (1970), 398 U.S. 954, 26 L. Ed. 2d 296, 90 S. Ct. 1881.) In view of the overwhelming evidence of defendant’s guilt, any possible error in the prosecutor’s argument was harmless and not reversible. People v. Tranowski (1960), 20 Ill. 2d 11,169 N.E.2d 347.

Accordingly, the State’s motion to dismiss the appeal is denied and the judgment of the circuit court of Champaign County is affirmed.

Motion denied, judgment affirmed.

GREEN, R J., and TRAPP, J., concur.


author: JUSTICE TRAPP

text:
    NICHOLAS M. KARAYANAKIS, Plaintiff-Appellant, v. STATE UNIVERSITIES CIVIL SERVICE MERIT BOARD et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0328
    Opinion filed February 15, 1985.

      Thomas J. Edstrom, of American Federation of State, County, and Municipal Employees, of Springfield, for appellant.
    Timothy O. Madigan and James J. Costello, both of University of Illinois, of Urbana, for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff filed a complaint in the circuit court of Champaign County for administrative review of the decision of the State Universities Civil Service Merit Board (Merit Board) finding just cause to discharge plaintiff from his position as assistant mechanical engineer with the University of Illinois operation and maintenance division. The trial court entered an order confirming the decision of the Merit Board from which plaintiff appeals. We affirm.

Plaintiff, Dr. Nicholas M. Karayanakis, was employed by the University of Illinois operation and maintenance division as an assistant mechanical engineer beginning June 2, 1980. One of the prerequisites for this position was a bachelor’s degree in mechanical engineering. On his application for employment plaintiff listed a bachelor of science degree in mechanical engineering from ATI College in Athens, Greece, as well as a master’s degree from Governor’s State University, and a doctorate from the University of Illinois. University of Illinois personnel officers did not require documentary proof of plaintiff’s bachelor’s degree at the time he applied and was examined for the position as assistant mechanical engineer.

Plaintiff successfully completed the six-month probationary period on December 2, 1980. Thereafter, in June 1983, questions arose concerning plaintiff’s job performance and his educational qualifications. After repeated requests for documentary evidence of plaintiff’s bachelor’s degree, which he refused, plaintiff was ordered by his supervisor to either provide such evidence, sign a written release authorizing the university to obtain such evidence, or face discharge proceedings; plaintiff again refused.

On July 18, 1983, formal charges for discharge were filed before the Merit Board. The charge alleged was plaintiff’s failure to comply with the order to sign the release form authorizing the university to obtain documentation of his bachelor’s degree and allowing the university to determine the transferability of plaintiff’s undergraduate credits. Plaintiff requested a hearing on the charges.

The discharge hearing was held on August 17, 1983, before a hearing officer of the Merit Board. Prior to the introduction of any evidence, counsel for the university indicated his intent to amend the written charges at the close of evidence to conform with the proof presented at the hearing. The proposed amended charges alleged that plaintiff failed to possess a bachelor’s degree in mechanical engineering and failed to have the requisite experience for his position.’ Plaintiff was also charged with falsifying his application for employment. The hearing officer ultimately deferred the decision on whether the original charge could be amended to the full Merit Board.

Consequently, evidence was presented at the discharge hearing which related to both the original and amended charges. The hearing officer entered findings of fact on all the charges, concluding that the charges for discharge were supported by evidence that plaintiff refused to obey a direct order and that plaintiff did not possess a bachelor’s degree in mechanical engineering. The full Merit Board entered its decision finding that the University of Illinois had established just cause for plaintiff’s discharge and approving the findings of fact entered by the hearing officer, but only to the extent such findings were consistent with plaintiff’s failure to obey a direct order. The Board ordered plaintiff’s discharge effective September 28,1983.

Plaintiff filed his complaint for administrative review in the circuit court on November 1, 1983, pursuant to the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3—101 et seq.). After hearing arguments, the court entered a written order on April 12, 1984, finding that the Merit Board’s decision was not arbitrary, capricious, or against the manifest weight of the evidence.

Plaintiff initially complains that the University of Illinois was erroneously allowed to introduce evidence supporting the proposed amended charges against plaintiff. However, the Merit Board’s order discharging plaintiff was based solely on the finding that plaintiff refused to obey a direct supervisory order, and the hearing officer’s findings of fact were approved only to the extent that they were consistent with evidence introduced relative to the original charge. Therefore, plaintiff was not prejudiced in any way by the introduction of the extraneous evidence, even assuming that the university could not have properly amended the charges prior to the introduction of any evidence at the discharge hearing. The evidence produced relating to the amended charges is simply irrelevant to the issue in this case.

Plaintiff argues, in essence, that the supervisory order directing him to sign the release form, supply documentation of his bachelor’s degree, or face discharge was illegal and invalid and therefore plaintiff’s dismissal for disobeying that order was arbitrary and capricious. The claimed illegality of the order is premised on two grounds: (1) that the order violated plaintiff’s “right to educational privacy,” and (2) that the order required plaintiff to “requalify” for his position after he had successfully completed his probationary period, in violation of section 36h of “An Act to create the State Universities Civil Service System” (Ill. Rev. Stat. 1983, ch. 24V2, par. 38b7).

Plaintiff argues that the supervisory order to supply documentation of his bachelor’s degree or sign the written waiver violated his “right to educational privacy.” However, plaintiff has failed to identify the source of any such right or explain how such a right would apply in the instant situation. We are unwilling to allow the bare assertion of this alleged right to shield a civil service employee from a legitimate inquiry into the employee’s academic credentials for employment. The university here should not be prevented from ascertaining the qualifications of even tenured employees when valid questions arise concerning the authenticity of the employee’s asserted qualifications.

Plaintiff’s second contention, that a tenured employee may not be forced to “requalify” for his position after the completion of his probationary period, is in effect an argument that the university is estopped from inquiring into an employee’s educational qualifications by the mere running of the six-month probation period. The logical extension of this argument would result in an absurd situation where a civil service employee who defrauds the university by successfully misrepresenting his educational qualifications for a sufficient period, as plaintiff was accused of here, would be assured of continuing employment.

The real issue in this case, one which is .somewhat obscured by plaintiff’s arguments, is whether the Merit Board’s finding of just cause to discharge plaintiff is arbitrary or against the manifest weight of the evidence. It is uncontested that a bachelor’s degree in mechanical engineering is a prerequisite for the position of assistant mechanical engineer, that plaintiff never provided documentation of such a degree at the application and examination stage, and that plaintiff refused a direct order to provide documentation or sign the release form after his qualifications were called into question.

The term “just cause,” used in section 36o of “An Act to create the State Universities Civil Service System” (Ill. Rev. Stat. 1983, ch. 241/2, par. 38bl4) as a standard for discharge, has been defined as some substantial shortcoming which renders continuance and employment detrimental to discipline and efficiency and something which the law and sound public opinion regard as good cause for termination of employment. (Tudor v. University Civil Service Merit Board (1971), 131 Ill. App. 2d 907, 267 N.E.2d 341; Colaw v. University Civil Service Merit Board (1975), 37 Ill. App. 3d 857, 341 N.E.2d 719.) The determination of what constitutes just cause rests within the sound discretion of the Merit Board and will not be set aside unless it is so trivial or unrelated to the requirements of employment as to be unreasonable or arbitrary, or is against the manifest weight of the evidence. (McDaniel v. Board of Trustees (1975), 28 Ill. App. 3d 564, 328 N.E.2d 659.) Insubordination, or refusal to obey direct supervisory orders, has been recognized as just cause for the termination of a civil service employee. Parkhill v. Civil Service Com. (1978), 58 Ill. App. 3d 291, 374 N.E.2d 254; Epstein v. Civil Service Com. (1977), 47 Ill. App. 3d 81, 361 N.E.2d 782, appeal dismissed, cert. denied (1978), 435 U.S. 911, 55 L. Ed. 2d 502, 98 S. Ct. 1463.

In the instant case, the order to document plaintiff’s educational qualifications or sign a release allowing the university to do so was a reasonable and valid order. The order did not require plaintiff to “re-qualify” for his position, but merely required him to document the fact that he was qualified in the first instance. Plaintiff’s refusal to cooperate certainly was related to the requirements of employment in that without his cooperation the university was unable to determine whether he was qualified to hold the position of assistant mechanical engineer. Thus the decision of the Merit Board to discharge was not arbitrary or against the manifest weight of the evidence, and the judgment of the circuit court is consequently affirmed.

Affirmed.

MILLS and McCULLOUGH, JJ, concur.


author:
PRESIDING JUSTICE GREEN
      TRAPP, J.,

text:
    IVAN LA BOMBARBE, Adm’r of the Estate of George Martin La Bombarbe, Deceased, Plaintiff-Appellant, v. PHILLIPS SWAGER ASSOCIATES INC., Defendant-Appellee (Champaign County, Defendant).
    Fourth District
    No. 4—84—0524
    Opinion filed February 15, 1985.
    James J. Hagle and John Gadau, both of Zimmerly, Gadau, Stout, Selin & Otto, of Champaign, for appellant.
    Davis & Morgan, of Peoria (William R. Kohlhase and Jeffrey Alan Ryva, of counsel), for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On December 5, 1983, plaintiff, Ivan La Bombarbe, administrator of the estate of George Martin La Bombarbe, deceased, filed a wrongful-death action (Ill. Rev. Stat. 1981, ch. 70, par. 1) in the circuit court of Champaign County against defendants, Phillips Swager Associates, Inc. (Associates), and Champaign County. The complaint sought damages resulting from the suicide of plaintiff’s decedent while an inmate in the Champaign County jail. The complaint alleged that Associates (1) was the architectural firm which had designed the jail, and (2) had negligently provided for “grilles on heating and air conditioning ducts [in the cells] that presented anchor points” from which the decedent hanged himself. Upon Associates’ motion, the circuit court dismissed the complaint as to Associates for failure to state a cause of action. The order of dismissal contained a finding under Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) making the order appealable. Plaintiff has appealed. We affirm.

Associates’ motion to dismiss asserted that (1) the count directed against Associates failed to state a cause of action because decedent’s intentional act of suicide was the sole proximate cause of his death, and (2) plaintiff could not plead a set of facts which would permit recovery. Defendant has focused its argument on the theory of the lack of proximate cause. Such a focus does not produce a proper analysis of the issues here. Rather, we conclude that the essential question in this case is whether Associates had a duty of care to prevent the suicide of the decedent. Decisions of the supreme court have indicated that, given some showing of causal relationship between an act and an injury, the existence of proximate causation is generally a question of fact. (Paul Harris Furniture Co. v. Morse (1956), 10 Ill. 2d 28, 139 N.E.2d 275; Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836.) On the other hand, under recent decisions, the existence of a duty is a question of law. Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617; Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307.

The parties do not dispute that foreseeability is a prime element of proximate cause. (Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 50 N.E.2d 497.) In contending that the suicide of the decedent was not reasonably foreseeable by Associates, it relies upon the cases of Scheffer v. Washington City, Virginia Midland & Great Southern R.R. Co. (1882), 105 U.S. 249, 26 L. Ed. 1070, Stasiof v. Chicago Hoist & Body Co. (1964), 50 Ill. App. 2d 115, 200 N.E.2d 88, and Little v. Chicago Hoist & Body Co. (1965), 32 Ill. 2d 156, 203 N.E.2d 902, where suicides by an injured party were held, as a matter of law, to have not been reasonably foreseeable consequences of tortious conduct. However, in those cases the parties committing suicide received some injury by a tortfeasor and, later, because of the nature of the injury received, committed suicide. Here, the suicide would be a more direct result of the alleged negligence of Associates. If we assume that Associates had a duty to design the cells in such a way that the decedent would have had no “anchor points” to use in a suicide attempt, then it is difficult to determine, as a matter of law, that the decedent’s suicide by use of those “anchor points” was not reasonably foreseeable.

Accordingly, we shall proceed to determine whether the complaint alleges a duty on Associates and a breach of that duty. The question is before us because of Associates’ assertion, in its motion to dismiss, that plaintiff could not plead a cause of action from the facts presented. In Lance v. Senior (1967), 36 Ill. 2d 516, 224 N.E.2d 231, Mr. Justice Schaefer, in describing the elements of duty, wrote that foreseeability is one, but by no means the only, element of duty. The others listed were “[t]he likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.” (36 Ill. 2d 516, 518, 224 N.E.2d 231, 233.) There, the court held that a complaint, which alleged that the defendants negligently permitted a 9-year-old hemophiliac to play with a needle which he swallowed, was properly dismissed because it failed to allege facts setting forth a breach of duty.

The decisions of this court have made clear that in designing a building an architect owes a duty, to those who would be likely to use the structure, to exercise care that the design is safe for the building’s intended use. (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, 226 N.E.2d 630; Laukkanen v. Jewel Tea Co. (1966), 78 Ill. App. 2d 153, 222 N.E.2d 584.) Litigation in the circuit court of Du Page County has resulted in precedent that jailors, under certain circumstances, owe to inmates a duty of care to see that the inmates do not commit suicide. In Dezort v. Village of Hinsdale (1976), 35 Ill. App. 3d 703, 342 N.E.2d 468, the Second District reversed and remanded a summary judgment against the personal representative of a deceased inmate who had brought an action for negligence in the operation of the village jail which had permitted the decedent to hang himself. The jailors had special reason to anticipate that the inmate might kill himself, for the evidence indicated that the inmate was intoxicated and had announced he might do so. The court held that the jailors were under a duty to use reasonable care in protecting the inmate and that a factual question had been raised as to whether the jailors were negligent. On appeal from a judgment on a verdict for defendant after a trial on remand, the appellate court reversed again for error in an instruction on contributory negligence. (Dezort v. Village of Hinsdale (1979), 77 Ill. App. 3d 775, 396 N.E.2d 855.) Finally, after further remand and trial on the merits, a judgment for defendant was entered and affirmed on review. Delasky v. Village of Hinsdale (1982), 109 Ill. App. 3d 976, 441 N.E.2d 367.

While precedent has established the duty of an architect to design a safe jail and the duty of a jailor to protect inmates known to be likely to commit suicide from doing so, no case holding that an architect has a duty to design a jail in such a manner as to prevent an inmate from committing suicide has been called to our attention.

As we have previously indicated, it is reasonably foreseeable that an inmate may attempt suicide. The court in the first Dezort case so indicated. Plaintiff has called our attention to an article appearing in 12 Criminal Justice Newsletter No. 24 (December 7, 1981), which states the plausible statistic that suicide occurs among inmates in jails at a frequency 16 times greater than that among the general public. However, the foreseeability among inmates in general is much less than that among those inmates, such as in Dezort, who threaten to commit suicide. In any event, it is because of the failure of the other elements of duty rather than that of foreseeability that we hold that Associates was under no duty here to design jail cells without grilles.

The reason that such a duty should not be imposed on Associates is illustrated by the newsletter article which plaintiff has cited to indicate the foreseeability of inmate suicides. The article refers to a study by the National Center on Institutions and Alternatives. According to the article, the study stresses the importance of jailors identifying suicide-prone inmates. The article then states:

“Such precautions as barless windows and doors, tearaway blankets and television monitors should not be substituted for human interaction. The precautionary tools used to prevent suicide are insufficient and often times are designed for the convenience of jail personnel and not for the benefit of the inmate, the study said.” (Emphasis added.) (12 Criminal Justice Newsletter No. 24, at 3 (December 7,1981).)

The magnitude of the burden placed on architects to eliminate all fixtures, such as grilles, that might be of aid in the commission of a suicide and, at the same time, to design an attractive and feasible cell at a reasonable cost would seem to be great. Yet, according to the article, the resultant design would be insufficient to protect the inmate from his self-inflicted destruction. The cost of placing this relatively useless burden upon architects would likely cause further increase in the already extremely high cost of housing prisoners.

Associates argue that recovery should be denied because the decedent’s act of committing suicide was morally and legally wrong. No recent decision of a court of review of this State has denied recovery because of a common law principle that one’s estate cannot benefit by one’s suicide if a breach of duty by another is a proximate cause of the suicide. The precedence of Dezort is to the contrary. However, the fact that the act of the decedent here giving rise to plaintiff’s claim for recovery was an act by an adult of a self-infliction of injury, and a wrongful act, has some materiality in our determination as to the extent to which the law should reach in imposing a duty on a person or entity, such as Associates, to exercise care in preventing the act.

We affirm the order dismissing the complaint as to Associates.

Affirmed.

MILLS, J., concurs.

TRAPP, J.,

specially concurring:

I concur in the disposition and analysis of the principal opinion, but I believe that it should be made explicit that the duty of the defendants, as architects, should be more clearly distinguished from any inference that an architect’s duty is to be determined upon the standards defined in the cited Dezort v. Village of Hinsdale and Delasky v. Village of Hinsdale.

In those cases, the duty of the police officers was said to be determined by the circumstances of the particular case, with more specific reference to the officers’ observation of the physical condition of the prisoner, his conduct and statements, and from other information acquired during the course of the arrest procedure.

However, in Miller v. DeWitt (1967), 37 Ill. 2d 273, 226 N.E.2d 630, and Laukkanen v. Jewel Tea Co. (1966), 78 Ill. App. 2d 153, 222 N.E.2d 584, it is stated that the common law duty of an architect in matters of design is to exercise that degree of skill and care that is customarily used by competent architects in the community. See Annot., 97 A.L.R.3d 455, (1980).


author: JUSTICE HOPF

text:
    LARRY D. SHIPLEY, Plaintiff-Appellant, v. STEPHENSON COUNTY ELECTORAL BOARD, Defendant-Appellee.
    Second District
    No. 84—164
    Opinion filed February 11, 1985.
    Modified on denial of rehearing March 15, 1985.

      Larry D. Shipley, pro se, Robert K. Slattery, and Randall J. Manus, all of Freeport, for appellant.
    Charles R. Hartman, State’s Attorney, of Mt. Carroll (Phyllis J. Perko and William L. Browers, both of State's Attorneys Appellate Service Commission, of counsel), for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Plaintiff Shipley is the proponent of two petitions for referendum filed on December 15 and 16, 1983, in Stephenson County pursuant to section 2 of “An Act authorizing certain counties to levy an additional tax ***” (Ill. Rev. Stat. 1983, ch. 34, par. 2155). The petitions requested a referendum on an action of the Stephenson County Board, which authorized a .04% levy on the property owners of that county. Subsequently, it was discovered that the petitions had been notarized by persons who no longer had authority to notarize them under the Illinois Notary Public Act (Ill. Rev. Stat. 1983, ch. 99, par. 10). Objections to the petitions were filed on this basis, and the petitions were subsequently ruled invalid by the Stephenson County Electoral Board (hereinafter referred to as Electoral Board or Board). Plaintiff appealed to the circuit court of Stephenson County, which affirmed the Board’s decision. In this appeal, we are asked to review the decisions of the Board and the circuit court to determine, primarily, whether the two petitions for referendum are invalid because the individuals who notarized them were without authority to do so under the Illinois Notary Public Act. Because we have concluded that the cause should be reversed on the basis of this issue, we will consider only two of the remaining issues raised by plaintiff in this appeal: whether the Electoral Board lacked jurisdiction over the hearing on the objections to the petitions, and whether plaintiff was unlawfully charged a filing fee in connection •with the filing of his complaint for review in the Stephenson County circuit court.

Plaintiff’s jurisdictional argument is based upon his claim that the Electoral Board failed to give him the notice required under section 10—8 of the Election Code. (Ill. Rev. Stat. 1983, ch. 46, par. 10—8.) That section requires that a copy of the objection be transmitted “by registered mail or receipted personal delivery *** to the person designated on a certificate attached to the petition as the principal proponent of the public question, or as the proponents’ attorney, for the purpose of receiving notice of objections.” (Ill. Rev. Stat. 1983, ch. 46, par. 10—8.) Section 10—8 further provides that this notice is to be served upon the principal proponent “not later than 12:00 noon on the next business day” following the filing of the objections. (Ill. Rev. Stat. 1983, ch. 46, par. 10—8.) Plaintiff argues that the statutory and procedural requirements placed upon the Electoral Board officials by section 10—8 are mandatory as to them, but are only directory as to the people and the plaintiff. Plaintiff further argues that he was deprived of procedural due process because the notice which he received was defective, and because he was denied the time needed for preparation for the hearing on the objections. We disagree with plaintiff’s contentions in this regard, and find that the notice given by the Electoral Board and received by plaintiff Shipley was sufficient to confer jurisdiction.

A mandatory provision in a statute is one which the omission to follow renders the proceeding to which it relates illegal and void, while a directory provision is one the observance of which is not necessary to the validity of the proceeding. (Havens v. Miller (1981), 102 Ill. App. 3d 558, 564-65, 429 N.E.2d 1292, quoting People ex rel. Agnew v. Graham (1915), 267 Ill. 426, 436, 108 N.E. 699.) When a statute prescribes the performance of an act by a public official or a public body, the question of whether it is mandatory or directory depends upon its purpose. (People ex rel. Larson v. Rosewell (1980), 88 Ill. App. 3d 272, 277, 410 N.E.2d 404.) If the provision merely directs a manner of conduct for the guidance of the officials or is designed to secure order, system and dispatch in proceedings, it is generally directory, absent negative language denying the performance if the acts required are not done in the manner designated. If, however, the conduct is prescribed in order to safeguard a person’s rights, which may be injuriously affected by failure to act in the manner specified, the statute is mandatory. 88 Ill. App. 3d 272, 275, 277, 410 N.E.2d 404.

After reviewing the provision in question, we conclude that while some notice to interested parties is mandatory under the statute, the manner and method of service prescribed therein is merely directory. Initially, we note that the Board found that no person was certified as the proponent of the referendum. This finding is not denied by plaintiff Shipley. Thus, it is clear that strict compliance with the notice provision of section 10—8 of the Election Code was in all likelihood not possible. Further, the failure to strictly comply with that provision was not the fault of the Board but rather that of the plaintiff, who ostensibly drafted the referendum petitions and should have designated himself as the proponent.

In any event, however, we believe the facts of this case closely resemble those in Havens v. Miller (1981), 102 Ill. App. 3d 558, 429 N.E.2d 1292, wherein the court considered the question whether the Electoral Board lacked jurisdiction because the chairman failed to have notice of the hearing served upon the candidates by the sheriff, as required by section 10—10 of the Election Code. (Ill. Rev. Stat. 1983, ch. 46, par. 10—10.) The candidates in that case had in fact been served by registered or certified mail; however, section 10—10 required that the chairman “shall” institute both forms of notice. (Havens v. Miller (1981), 102 Ill. App. 3d 558, 564, 429 N.E.2d 1292.) Under these circumstances, the court stated that the intent of the legislature in providing for two methods of serving notice was to increase the likelihood that candidates would actually receive notice of the hearing. (102 Ill. App. 3d 558, 565, 429 N.E.2d 1292.) The candidate in question in fact received the notice that was sent by mail and participated in the hearing through his attorney. The court also noted that to accept the candidate’s argument would be to give the chairman “absolute veto power” over objections since, by ignoring one of the alternative methods of serving notice, he could prevent the Board from having authority to sustain valid objections. (102 Ill. App. 3d 558, 565, 429 N.E.2d 1292.) Noting that section 10—10 does not explicitly specify that this is the intended result of a failure to send notice by both methods, the court concluded that noncompliance with the redundant requirement of sheriff’s service was not fatal to the Board’s jurisdiction. 102 Ill. App. 3d 558, 565, 429 N.E.2d 1292.

The provision in question here requires that notice be sent either by registered mail or receipted personal delivery. (Ill. Rev. Stat. 1983, ch. 46, par. 10—8.) In so requiring, it is clear that the legislature intended, as in Havens, to increase the likelihood that interested parties would actually receive notice of the hearing. (See Havens v. Miller (1981), 102 Ill. App. 3d 558, 565, 429 N.E.2d 1292.) Plaintiff here did in fact receive notice of the objection the day after it was filed and participated in the hearing on the objections. Further, the Board’s opinion reflects that continuances were granted as needed for the preparation of their case. Plaintiff has not claimed that he was denied a continuance, or even that he requested one; thus, his claim of prejudice is without merit. Also, to accept plaintiffs view of the notice provision would give the chairman, who is responsible for such notice, “absolute veto power” over objections simply by serving notice in a manner different from that set forth in the statute. (See Havens v. Miller (1981), 102 Ill. App. 3d 558, 565, 429 N.E.2d 1292.) Finally, the language of section 10—8 does not specifically state that the failure to strictly comply with the notice provision results in a nullification of the Board’s authority. Accordingly, we conclude that the notice provision of section 10—8 is directory in nature and was substantially complied with, and that the Board therefore had jurisdiction over the hearing below.

Next we consider the primary issue in this appeal, that is, whether the Electoral Board and the circuit court erred in finding the petitions invalid because several of the notaries were without authority to notarize the petitions under the Illinois Notary Public Act (Ill. Rev. Stat. 1983, ch. 99, par. 10), hereinafter referred to as the “Act.”

Section 28—3 of the Election Code (Ill. Rev. Stat. 1983, ch. 46, par. 28—3) sets forth the requirements for filing a petition for referendum and provides, in relevant part, that the circulators of such petition shall add a statement at the bottom of each sheet of the petition certifying that the signatures on that sheet were signed in his presence and are genuine, and that to the best of the circulator’s knowledge the persons signing the petition are registered voters and the addresses stated on the petition are correct. Section 28—3 further provides that “[s]uch statement shall be sworn to before some officer authorized to administer oaths in this State.” (Ill. Rev. Stat. 1983, ch. 46, par. 28—3.) The authority of a notary is set forth in section 10 of the Illinois Notary Public Act and states:

“A notary public duly qualified shall have authority, while he resides in the same county in which he was appointed, to execute the duties of his office throughout the state.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 99, par. 10.)

Thus, under the plain language of this provision, a notary has authority to administer oaths in this State only as long as he or she continues to reside in the same county in which he or she were appointed.

At the hearing in the instant case, the Electoral Board found that the majority of the pages of the petitions in question were notarized by James L. or Diane Dawson. Up until March 1983, the Dawsons were residents of Winnebago County, and they received their notary commissions from the Secretary of State in that county. Winnebago County was also inscribed upon their notarial seals. In March 1983, the Dawsons changed their place of residence in Stephenson County and thus lost their authority to administer oaths as of that date, since they no longer resided in the same county to which they were appointed. (Ill. Rev. Stat. 1983, ch. 99, par. 10.) Plaintiff argues, however, that even if the Dawsons were without “de jure” authority to administer the oath on the petitions, they were nevertheless “de facto” officers with “de facto” authority to administer the oaths. The Electoral Board, on the other hand, argues that section 10 of the Illinois Notary Public Act is mandatory and thus that the “de facto” officer doctrine does not apply in the instant case. We agree with the plaintiff’s position, and accordingly reverse the decisions of the Electoral Board and the circuit court on this basis.

Initially, the language of section 10 does not prescribe conduct which must be followed by the notary, but is merely a statement regarding the scope of a notary’s authority to administer oaths. However, even if we construe section 10 as being mandatory as to the Dawsons, we believe this fact would not bar the application of the “de facto” officer doctrine as it would apply to third persons in this case. In McCormick v. Higgins (1914), 190 Ill. App. 241, the court was asked to determine whether a notary’s failure to enter a memorandum of his appointment in the office of the county clerk invalidated the affidavit notarized by him. The court concluded that this failure did not render the affidavit invalid, stating:

“The statute does not say that [the notary’s] acts shall be void if he fails to comply with the regulation. The public, executing papers before a notary public, are not required to investigate the records in the county clerk’s office to find whether such an entry has been made, and it would be monstrous to hold that every act performed by or before a notary public who has failed to obey this statute is void, and thus invalidate legal proceedings and titles many years after the acts performed.” (190 Ill. App. 241, 260.)

Similarly, in People v. Severinghaus (1924), 313 Ill. 456, 469, the court rejected a contention by the State that a defendant’s answer could not be considered as being made “under oath” because of the fact that the notary had failed to strictly comply with the law. The court stated:

“A person acting as a notary under color of authority, with public acquiescence, will be held to be a notary de facto, and as to the public and third persons his acts are valid and cannot be attacked collaterally. It does not matter whether disqualification or complaint against his act is that he is ineligible for any reason, or because of the fact that he is a hold-over, or has failed to take the oath of office or otherwise comply with the directory provisions of the statute.” (Emphasis added.) 313 Ill. 456, 469.

While the provisions in the Severinghaus and McCormick cases were considered to be directory in nature, we believe the reasoning of those cases is equally applicable here. To adopt the Board’s position would be to require the public to investigate the underlying authority of notary publics whenever papers are executed before them. Such a result would require the public to determine not only the requirements of the Illinois Notary Public Act, but also whether those requirements have been met by the notary before whom they appear. We also note that the Illinois Notary Public Act contains no statement rendering void any acts performed by or before a notary public who has moved from the county in which he was appointed. Further, we do not believe the legislature intended such a result, at least in the absence of any evidence of fraud or corruption in the oath-taking process.

This view is bolstered by the underlying purpose of the oath requirement in section 28—3 of the Election Code (Ill. Rev. Stat. 1983, ch. 46, par. 28—3). It is well established that the requirement that a circulator appear before an appropriate official to swear to his oath is a mandatory one under section 28—3. (Bowe v. Chicago Electoral Board (1980), 79 Ill. 2d 469, 470, 404 N.E.2d 180; Williams v. Butler (1976), 35 Ill. App. 3d 532, 536, 341 N.E.2d 394.) It is assumed that by his sworn statement the circulator is subjecting himself to possible perjury prosecutions; thus, this requirement is considered a meaningful and realistic method of eliminating fraudulent signatures and protecting the integrity of the political process. (Williams v. Butler (1976), 35 Ill. App. 3d 532, 536, 341 N.E.2d 394.) In the instant case, the circulators did in fact take an oath before a person who they believed was authorized to administer oaths, supplying all the information required of them by the statute. Thus, it is clear that the circulators believed they could be subjected to perjury prosecutions if the statements they made proved to be false. Further, the Board in the instant case specifically stated that there was no evidence of fraud or corruption on the part of either the Dawsons or the circulators; nor was there any evidence that any of these parties knew of the violation of section 10 of the Act. Under these circumstances, we conclude that the integrity of the political process was not in jeopardy, and that the oath provision of section 28—3 of the Election Code was substantially, if not literally, complied with by the circulators of the petitions.

Finally, we consider plaintiff’s argument that he was unlawfully charged a filing fee in connection with the filing of his complaint for review in the circuit court. Plaintiff’s argument is premised upon the assumption that the filing fee for a complaint for administrative review is not covered by section 27.1 of “An Act to revise the law in relation to clerks of court” (Ill. Rev. Stat. 1983, ch. 25, par. 27.1), which governs fees of the clerk of the circuit court. Thus, he argues that pursuant to paragraph (v) of that statute, any fee charged was required to be set by a rule or administrative order of the circuit court, which plaintiff claims was not done in this case. (Ill. Rev. Stat. 1983, ch. 25, par. 27.1(v).) However, section 27.1(a)(1) provides for a fee in “[a]ll civil cases except as hereinafter otherwise provided,” and thus this provision authorizes fees in the instant case. Further, the court here did in fact order that plaintiff be assessed the costs of the proceedings. Accordingly, we conclude that the filing fee was properly charged to the plaintiff in this case.

For the reasons here stated, the judgment of the circuit court of Stephenson County is reversed and the cause remanded for the Stephenson County Clerk to submit the proposition at an election in accordance with the general election law.

Reversed and remanded.

STROUSE and SCHNAKE, JJ., concur.