author: PRESIDING JUSTICE DOWNING

text:
    MBL (USA) CORPORATION, Plaintiff-Appellant, v. FREDERICK J. DIEKMAN et al., Defendants-Appellees.
    First District (2nd Division)
    No. 82—1029
    Opinion filed January 25, 1983.
    Rehearing denied March 1, 1983.

      James R. Mitchell, Jerrold E. Fink, and Nancy E. Sasamoto, all of Chicago, for appellant.
    Rosemarie J. Guadnolo and Leonard Saphire-Bernstein, both of Arvey, Hodes, Costello & Burman, of Chicago, for appellees.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

This is an interlocutory appeal of the trial court’s order of April 29, 1982, denying plaintiff MBL (USA) Corporation’s motion for a preliminary injunction and dissolving a temporary restraining order entered on December 23, 1980. Plaintiff seeks to enjoin the alleged misappropriation and disclosure of its trade secrets and other confidential proprietary information by defendant, a former employee of plaintiff. After a lengthy hearing, the trial court, basing its decision upon 48 specific findings and its conclusions of law, determined that there was no likelihood of plaintiff’s success at trial on the merits. Plaintiff contends that the decision is contrary to the manifest weight of the evidence and therefore an abuse of discretion.

At trial, plaintiff asserted that its trade secrets and proprietary information were being misappropriated and disclosed to third persons by defendant in violation of an employer-employee confidentiality agreement and defendant’s fiduciary duty. In its decision, the trial court summarized what plaintiff considered to be its trade secrets as follows:

“1. A production process and technology which enables ChemiFlex [a division of plaintiff corporation] to produce urethane flat belts and timing belts and products within an extremely short cycle time (often six minutes or less) through a centrifugal molding technique which does not require the use of a vacuum to degas (or eliminate entrapped air from) the urethane or reinforcing materials at any stage of the production process. This technology includes, in combination, the use of unique specialized molds and molding machinery; the use of centrifugal forces ([sic] or the angular speeds which are related to the r.p.m. and the diameter of the mold utilized substantially in excess of those generally used or known in the industry; the heating of the urethane compounds to temperatures substantially lower than those recommended, specified and used in the industry; the use of a temperature differential between that of the mold and molding machine and the temperature of the urethane mix poured into the mold; and the use of a ‘pot life’ for the urethane compound substantially less than that generally used in the industry;
2. The design specifications for the molds, machinery and equipment used by Chemi-Flex;
3. The product specifications and formulas used by ChemiFlex in the manufacture of urethane belts and products for its customers;
4. The identities of the customers of Chemi-Flex and the data, including production and product data, developed by ChemiFlex with respect to such customers and products; and
5. Specialized products and molds, including the Teletype Corporation carrier belts, multi-durometer (or hardness) belts and products, such as the Teletype Corporation bumpers and IBM tractor belts; ‘six-hold,’ or ‘six-cavity,’ molds; and a system of interchangeable mold cores and barrels.”

Plaintiff is owned by two Japanese corporations. Plaintiff purchased all the stock of Chemi-Flex, Inc., an Illinois corporation manufacturing urethane timing belts and flat belts and related products. Chemi-Flex, Inc., was formed by Earnest Meeder. Defendant and Meeder met while both were employed at the J. W. Johnson Company. Defendant was hired at J. W. Johnson beginning in 1968, as a summer assistant during high school and college. Defendant received an engineering degree from Iowa State University in 1972, then was employed full-time by Chemi-Flex. Defendant was employed in various positions at Chemi-Flex until he was fired in 1978. Defendant was rehired by Chemi-Flex in February of 1979 after plaintiff had purchased Chemi-Flex. Defendant was again fired from his position as production manager in September 1979.

Defendant assisted Earnest Meeder in the ongoing development of the centrifugal molding process, now claimed as a trade secret, beginning with his summer employment at J. W. Johnson and continuing through September 1979. Even during the period that defendant was not employed full-time with Chemi-Flex between February 1978 and February 1979, he served as a consultant to Chemi-Flex.

Earnest Meeder purchased the centrifugal molding machine he was developing at J. W. Johnson Company and in 1971, formed Chemi-Flex, Inc. Throughout the corporate existence of Chemi-Flex, Inc., many people, including defendant, assisted in the ongoing development of the centrifugal molding process culminating in 1978 with the use of 15 machines designed to accommodate production needs.

While employed by Chemi-Flex from 1972 through 1978, defendant was restrained by an employer-employee confidentiality agreement. However, when defendant was rehired in 1979, he refused to sign such an agreement when asked to do so by plaintiff’s president, believing it was too restrictive and unfair. No further discussions about the agreement took place, and defendant never signed the agreement. In September 1979, defendant was again fired. According to defendant, he was fired because of continuing disputes over company hiring policies and the manner in which the company was being run. Although defendant stated that he was fired at that time, one of plaintiff’s officers testified that defendant left the company Voluntarily-

Following his second tenure with Chemi-Flex, defendant formed two companies, Surface Additions, Inc., and FBN Industries, Inc., and began to design centrifugal molding machines and designs for other belt-producing equipment. A Chemi-Flex division employee assisted defendant in the production of blueprints for defendant’s molding machines.

When plaintiff’s officers learned of defendant’s activities, a letter was sent to defendant requiring that he comply with the employer-employee agreement which he signed in 1972. He was also requested to make certain disclosures regarding his designs and other business activities. Defendant did not respond to these demands whereupon plaintiff brought this action. The trial court entered a temporary restraining order on December 30, 1980. A hearing on plaintiff’s motion for a preliminary injunction, which began on May 4, 1981, lasted nearly one year and involved extensive testimony and voluminous documentary evidence. On April 29, 1982, the trial court entered its order denying plaintiff’s motion for a preliminary injunction and dissolved the December 23,1980, temporary restraining order.

I

Plaintiff strongly urges that the trial court abused its discretion when it denied plaintiff’s motion for a preliminary injunction and that the court’s findings that plaintiff’s process, technology, machinery, customer data and production specifications are not protectible as trade secrets are contrary to the manifest weight of the evidence. We cannot agree.

“In order to prevail on a motion for a preliminary injunction a plaintiff must prove that: (1) a clearly ascertained right exists which needs protection; (2) irreparable injury will occur without the protection of an injunction; (3) the remedy at law is inadequate; and (4) there is a likelihood of success on the merits of the case.” (Lincoln Towners Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 355, 425 N.E.2d 1034.) The trial court here determined that the evidence failed to show a likelihood of plaintiff’s success on the merits. In showing a likelihood of success on the merits “ '*** a party is not required to make out a case which will in all events warrant relief at the final hearing. All that is necessary is that the petitioning party raise a fair question as to the existence of the right claimed ***.’” (Capsonic Group, Inc. v. Plas-Met Corp. (1977), 46 Ill. App. 3d 436, 438, 361 N.E.2d 41, citing Grillo v. Sidney Wanzer & Sons, Inc. (1975), 26 Ill. App. 3d 1007, 1013, 326 N.E.2d 180.) On review, the question to be addressed is whether the evidence at trial was “so strong and convincing” (Andrea Dumon, Inc. v. Pittway Corp. (1982), 110 Ill. App. 3d 481, 486) in plaintiff’s favor that this court is compelled to reverse the judgment of the trial court (110 Ill. App. 3d 481, 486).

Plaintiff argues that the evidence shows that the trial court abused its discretion by failing to find that plaintiff’s process, machinery and customer data were entitled to trade secret protection. Plaintiff properly points out, relying upon ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 92, 273 N.E.2d 393, that a trade secret is generally described “as a plan or process, tool, mechanism, compound, or informational data utilized by a person in his business operations and known only to him and such limited other persons to whom it may be necessary to confide it.” As trade secrets are subject to variations depending upon the facts, an exact definition of trade secret is not always possible. Some factors a court may consider in determining whether the particular information is one’s trade secret are: “(1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.” ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 93, citing Restatement of Torts sec. 757, comment b, at 6.

The evidence and testimony reveals that the process and machines of plaintiff had been developed over a long period of time with the assistance of defendant and others, and that defendant was exposed to these developments, in part, prior to being employed by plaintiff. Advances in the development of the process and machinery continued throughout defendant’s relationship with plaintiff and continue today. Plaintiff offered into evidence a letter sent by defendant to one of plaintiff’s customers which plaintiff argues shows that defendant acknowledged the uniqueness of plaintiff’s process. In the letter, defendant pointed out the advantages of allowing defendant to supply urethane belts to the customer using the same machinery and process as plaintiff, but defendant does not claim that the process is a new, or as yet unknown, invention. Defendant also solicited financial backing to improve on the known process as a possible alternative to the customer’s method of operation. “ ‘[M]ere mechanical advance in the use of a process is not a new process or discovery [entitled to protection]. To be a new process there must be employed creative faculties in originating it amounting to a meritorious discovery or invention. ’ ” (Andrea Dumon, Inc. v. Pittway Corp. (1982), 110 Ill. App. 3d 481, 486-87, citing, Victor Chemical Works v. Iliff (1921), 299 Ill. 532, 546-47, 132 N.E. 806.) The evidence here supports the trial court’s conclusion that plaintiff was unlikely to succeed on the merits.

In support of its assertions that its entire process is a protectible trade secret, plaintiff relies heavily upon the testimony of its witnesses, especially its expert witness, Dr. Lawrence Broutman. Plaintiff strongly urges that the trial court misinterpreted the testimony of defendant’s expert, Professor Kurt C. Frisch. The degree to which the process is known in the industry was the focus of testimony offered by the experts. Plaintiff’s expert focused on the quality of the finished product in light of plaintiff’s entire process, using its own machines, when compared to the quality of other companies such as Barry Instrument Corp., whose president testified that they also do not utilize a vacuum in their process. Defendant’s expert stated that the use of this process was indeed known in the industry, although the Chemi-Flex proce.ss was not specifically discussed in any industry literature. In its brief, plaintiff re-examined the patents, literature and scientific documents it believed defendant’s expert examined, or should have examined, in preparation for his testimony and concluded that the trial court erred by not viewing Professor Frisch’s testimony as incredible in light of plaintiff’s own expert presentation and interpretation of the evidence. But it is well known that “in a bench trial it is within the province of the trial court to determine the credibility and weight of the testimony, to resolve the inconsistencies and conflicts, and to render its decision accordingly” (People v. Green (1982), 104 Ill. App. 3d 278, 284, 432 N.E.2d 937, appeal denied (1982), 91 Ill. 2d 25), and a court of review cannot substitute its judgment on these matters unless the findings are against the manifest weight of the evidence (Greer v. Carter Oil Co. (1940), 373 Ill. 168, 179, 25 N.E.2d 805).

A review of the record supports the trial court’s determination that there was no likelihood of success on the merits by plaintiff in light of evidence that the process is generally known in the industry. Specifically, the trial court found the following to be generally known in the industry: (1) the fact that reinforced urethane belts could be manufactured by means of a centrifugal process without the use of a vacuum; (2) the use of centrifugal molding machines (without a vacuum), slitting machines, demolding processes, winding machines and belt molds; (3) the use of the ingredients which plaintiff utilizes; (4) the use of a process with the range of proportions of ingredients and conditions used in producing plaintiff’s belts. Our review of the record reveals that these findings are not contrary to the manifest weight of the evidence and will not be set aside.

II

Plaintiff argues that the trial court should have concluded that the evidence of their security measures, such as the employer-employee agreement, demonstrates that plaintiff treated its entire operation, including equipment and customer information, as a trade secret.

A

Plaintiff asserts that even if other companies utilize the same process of molding urethane, the uniquely integrated use of the known elements with plaintiff’s in-house machinery and the security measures utilized by plaintiff qualifies their system for trade secret protection. This assertion is not supported by the record. Some employees, but not all, signed the employer-employee agreement restricting the disclosure of information imparted to them during and after their employment. Defendant refused to sign the agreement upon request when re-employed and was allowed to continue in plaintiff’s employ for five months. There is no evidence that defendant’s failure to sign the agreement was a reason for his employment being terminated.

Following termination, a former employee can be enjoined from taking or using his former employer’s trade secrets (Capsonic Group, Inc. v. Plas-Met Corp. (1977), 46 Ill. App. 3d 436, 439, 361 N.E.2d 41), and he may not take confidential, particularized plans or processes developed by his employer and disclosed to him while the employer-employee relationship exists. However, an employee may “take with him general skills and knowledge acquired during his former employment.” (Packard Instrument Co. v. Reich (1980), 89 Ill. App. 3d 908, 917, 412 N.E.2d 617.) The record shows that defendant was utilizing his general skills and knowledge which he acquired during his employment with plaintiff and Chemi-Flex. Additionally, plaintiff’s failure to require defendant and other employees to sign the employer-employee agreement does not demonstrate the deep concern for security presently claimed by plaintiff.

B

Plaintiff argues that the trial court erred in finding that the employer-employee agreement was unenforceable as a matter of law. It is well known that Illinois courts favor fair competition in business and do not encourage restraints of trade; therefore, restrictive covenants are closely scrutinized. (Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 713, 390 N.E.2d 68.) Such covenants will be enforced “only if the time limit and geographic scope are reasonable, trade secrets or confidential information are involved, and the restriction is reasonably necessary for the protection of a legitimate business interest.” Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 713; see Dunn v. Shepherd (1975), 25 Ill. App. 3d 825, 826-27, 323 N.E.2d 853; accord, Booth v. Greber (1977), 48 Ill. App. 3d 213, 219-20, 363 N.E.2d 6, appeal denied (1977), 66 Ill. 2d 628.

It is therefore necessary for plaintiff to demonstrate the existence of a protectible business interest or that defendant was exposed to confidential information through his employment in order to justify the enforcement of a restrictive covenant. (Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 713.) Here, the trial court found that it was unlikely that plaintiff could show that a protectible business interest existed. We agree.

Further, the testimony did not establish that the employees were aware of what information plaintiff considered to be confidential. If, as in this case, it is unlikely that plaintiff is able to establish the existence of a protectible business interest, a restrictive covenant would not be a reasonable necessity for the protection of plaintiff’s business and would, therefore, be unenforceable. Failure to establish such a protectible interest lessens the possibility of showing the existence of irreparable injury and the need for injunction relief. See Donald McElroy, Inc. v. Delaney (1979), 72 Ill. App. 3d 285, 294, 389 N.E.2d 1300.

The trial court here did not find the agreement unenforceable due to plaintiff’s inability to establish a protectible business interest at trial, but rather found the agreement to be “vague and over broad in time and over broad in geographical coverage” and therefore unenforceable as a matter of law. The question of enforceability is a matter of law to be decided on the particular facts of each case. (Donald McElroy, Inc. v. Delaney (1979), 72 Ill. App. 3d 285, 293.) Although we feel, based on our review of the record, that the trial court arrived at the proper conclusion regarding the enforceability of the agreement, we do not agree with the basis for such conclusion. The agreement would be unenforceable if plaintiff is unable to establish the existence of a protectible business interest. We therefore find that although the trial court reached the right conclusion but for the "wrong reason, the error does not require reversal. In re Estate of La Rue (1964), 53 Ill. App. 2d 467, 475, 203 N.E.2d 47.

C

The record contains other evidence which supports the trial court’s conclusion that plaintiff was unlikely to prove the existence of a trade secret. Such evidence, showing a further lack of security measures by plaintiff, includes the facts that plans, designs and customer data were not locked up; customer names and orders were not marked confidential; process formulas and machines were shown, •without restriction, to employees, outside consultants and others; no licensing or confidentiality agreements were signed by outside parties with access to the process and formulas; no evidence was presented to the trial court showing the specific items that plaintiff considered to be confidential; and the entire process, formula and machinery were open to a team of engineers from a stockholder corporation of plaintiff who, along with an Austrian corporation, is now involved in a joint venture to supply urethane belts to companies in Europe.

Such facts do not show that plaintiff utilized security measures designed to protect its process as a trade secret. (See United States Plywood Corp. v. General Plywood Corp. (6th Cir. 1966), 370 F.2d 500, 508, cert. denied (1967), 389 U.S. 820, 19 L. Ed. 2d 71, 88 S. Ct. 39 (where the court found no breach of confidentiality when the defendant failed to warn its employees against disclosure and no agreements were signed).) Here, the court found that defendant and other employees were not told what, if anything, plaintiff considered confidential. (See McGraw-Edison Co. v. Central Transformer Corp. (8th Cir. 1962), 308 F.2d 70, 74 (where the court determined that at no time did plaintiff consider its “know-how” or method of production as confidential in relation to employees or visitors to its plant).) Although many factors should be considered to determine if a trade secret exists, what is of primary importance is “whether and how an employer acts to keep the information secret.” (Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 356, 425 N.E.2d 1034.) We find that the instant record does not support plaintiff’s contention that their security measures demonstrate that a protectible trade secret exists.

D

Plaintiff also contends that the identity of its customers and its customer needs are protectible trade secrets. However, plaintiff failed to offer evidence of a customer list, or of steps taken by plaintiff to prevent its customers’ names or formula requirements from disclosure. Customer names and specifications were on orders and requisitions located in various places in the plant — in some cases posted on the wall near the machines. This court, in Lincoln Towers, set forth a succinct discussion of Illinois authority regarding the qualification of customer lists as trade secrets. Illinois courts have found that a customer list or other customer information constitutes a trade secret where the list has been developed by the employer over a number of years at great expense and the employer has kept the list or information under lock and key. Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 357-58.

The same information was held not to be a trade secret in instances where it had not been treated as confidential and secret by the employer, the information was commonly known or could have been easily duplicated, and where the customers were known to the employer’s competitors. (Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 358.) Here, there was no evidence of a confidential customer list or that customer information was kept under lock and key. Plaintiff’s actions as revealed by the testimony shows a lack of security measures and confidential treatment of customer names and requirements. Therefore, it cannot be said that the trial court’s findings were contrary to the manifest weight of the evidence.

E

The trial court’s conclusions of law state in part that “there was no showing that there is a likelihood of success on the merits at trial in proving that Diekman breached any fiduciary duty.” An employee can be shown to have breached his confidential relationship with his employer where he acts in a manner inconsistent with his employer’s interests during his employment by copying or memorizing trade secret information for use in soliciting his employer’s customers or in developing a competing product. (Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 358-59.) Lincoln Towers and other cases relied upon by plaintiff presumes the existence of either an agreement of nondisclosure or a fiduciary relationship as the basis of relief. The facts in this record do not support a conclusion that defendant was obliged either by contract or relationship to the plaintiff. Further, the authorities relied on by plaintiff presumed the existence of a protectible interest which has not been shown here. In its conclusion, the trial court properly stated that its decision was not a determination of the ultimate issues in the case but was addressed to the plaintiff’s likelihood of success on the merits at trial.

In reviewing the result reached by the trial court, we are not to determine conclusively if plaintiff possesses a trade secret, but rather to ascertain whether the trial court abused its discretion in denying the requested injunction. The decision to grant a preliminary injunction rests within the sound discretion of the trial court, and the only question we review on appeal is whether there was a sufficient showing to sustain the order of the trial court granting or denying the relief sought. (Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1978), 61 Ill. App. 3d 636, 642-43, 377 N.E.2d 1125.) Here, the record is sufficient to support the court’s denial of a preliminary injunction.

Ill

Finally, plaintiff contends that the trial court abused its discretion in granting defendant’s motion in limine. We cannot agree. Defendant’s motion in limine requested that the trial court require plaintiff to establish a prima facie case of misuse of, and the existence of, a trade secret before allowing plaintiff to question defendant as to his current methods, techniques and processes. Defendant’s motion stated that plaintiff would be unjustly enriched and defendant irreparably harmed if plaintiff were allowed to examine defendant’s methods, designs and processes.

Defendant wished to protect his work product which included designs and manufacturing plans compiled subsequent to his employment with plaintiff. Plaintiff argued that it should be allowed to examine defendant’s documents and designs to determine what trade secrets had been misappropriated by defendant. The record reveals that not only did the trial court properly grant defendant’s motion in limine but the trial court went to great lengths to insure fairness to both parties. “The Supreme Court Rules provide that ‘the court may supervise all or any part of any discovery procedure’ [citation] and enter protective orders ‘as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.’ [Citation.]” (Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1978), 61 Ill. App. 3d 636, 645, 377 N.E.2d 1125.) It must also be remembered that the trial court is given wide discretion with respect to the kind and extent of hearing on a motion for preliminary injunction and its order will not be modified absent an affirmative showing of abuse. (Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1978), 61 Ill. App. 3d 636, 644.) Such is not the case here, and the trial court’s order will not be disturbed.

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

Affirmed.

STAMOS and HARTMAN, JJ., concur.

      The other named defendants in this suit are two corporations formed by defendant, Diekman.

      Those who signed the employer-employee agreement agreed not to disclose to any person or corporation the various aspects of the employer’s product and/or process imparted to them during the course of their employment. By signing the agreement, the employee recognized that the employer has, or would, impart certain knowledge to the employee not to be disclosed to others during or after their term of employment. Following employment, the employee agreed not to compete in a similar business for five years.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD HARRELL, Defendant-Appellant.
    Fourth District
    No. 4—82—0181
    Opinion filed February 3, 1983.

      Daniel'D. Yuhas and Diana N. Cherry, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Anthony B. Cameron, State’s Attorney, of Quincy (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

Defendant was charged by information on September 24, 1981, with four counts of murder. After jury trial, a verdict was returned against the defendant on all four counts on February 5, 1982. On March 31, 1982, defendant was sentenced to a term of imprisonment of natural life on the third count for causing the victim’s death while committing armed robbery. (Ill. Rev. Stat. 1981, ch. 38, par. 9— 1(a)(3).) The judgments on the other three alternate counts were vacated.

Defendant contends that the trial court erred by barring impeachment of the prosecution’s principal witness with a prior juvenile conviction for burglary and by depriving defendant of a fair trial when it excluded a defense witness. We affirm.

The issues presented here require only a sketch of the evidence presented at trial. Defendant and his wife’s brother, Drew Cunningham, were in a tavern known as Nashville City located in Quincy, Illinois, in the early morning of September 19, 1981. At approximately 2 a.m., they left the tavern in the company of the victim, Earl Bowen. Bowen was later found murdered on the outskirts of Quincy. Conflicting testimony was given concerning the details of the departure from the tavern and the events of the following 45 minutes. In short, defendant testified that he left the tavern with Bowen, but outside they split up. Defendant spent the next 45 minutes wandering around downtown Quincy and then he headed back to where he had parked his truck. He did not know where Cunningham was until he saw him drive up and park his (defendant’s) truck.

According to Cunningham’s version of the events, defendant, the victim, and Cunningham left the tavern together in defendant’s truck. Defendant drove the truck to the outskirts of town where the victim was beaten with a metal bar by Cunningham, shot by defendant, and then robbed. The victim was left and the two of them returned to town.

Other than the fact that Bowen and defendant exited the tavern together, and one witness saw defendant and Cunningham drive up and park in defendant’s truck approximately 45 minutes later, the only testimony connecting defendant to the murder was that given by Cunningham. Cunningham was allowed to plead guilty to a single count of armed robbery and his sentencing had not yet taken place at the time of defendant’s trial. The trial court granted the prosecution’s motion in limine barring the introduction for impeachment purposes of Cunningham’s juvenile record. Defendant claims that his rights to confront a witness against him was thus unconstitutionally impaired.

A defendant’s right to confront the witnesses against him is fundamental to a fair trial. (Pointer v. Texas (1965), 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065.) The right to cross-examine is an essential part of the right to confront. (Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038.) Furthermore, Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, and People v. Norwood (1973), 54 Ill. 2d 253, 296 N.E.2d 852, indicate that a juvenile witness may be impeached by examination regarding pending juvenile matters or matters for which the witness is under the continuing supervision of a juvenile court. The rationale is that a defendant has the right to show possible bias on the part of a witness against him. That is, he may show that the juvenile witness is predisposed to testify favorably for the State in order to receive lenient treatment on the juvenile matters.

The juvenile adjudication that was sought to be introduced here was apparently for a burglary in California which occurred approximately IV2 years prior to the murder. There is nothing in the record to indicate that Cunningham expected to receive any leniency from California authorities because of his cooperation with the prosecution here, and in fact, the prosecutor stated that he had had no conversation with any California authorities on that possibility. We recently held in People v. Lindgren (1982), 111 Ill. App. 3d 112, that Davis and Norwood have no application where, as here, there has been no showing that the witness might receive favorable treatment in a juvenile proceeding because of his testimony. In contrast to impeachment by showing potential bias, there is no constitutional right to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications. (See Davis v. Alaska (1974), 415 U.S. 308, 321, 39 L. Ed. 2d 347, 356, 94 S. Ct. 1105, Ill. (Stewart, J., concurring); People v. Holsey (1975), 30 Ill. App. 3d 716, 332 N.E.2d 699.) We find the Lindgren holding controlling.

As a further basis for our holding we note that the court in People v. Baugh (1981), 96 Ill. App. 3d 946, 951, 422 N.E.2d 166, 171, stated:

“The issue under the confrontation clause is whether the jury has been made aware of adequate factors to determine whether a witness is worthy of belief, not whether any particular limitation has been placed upon defendant’s ability to cross-examine a witness or whether the jury has knowledge of any specific fact. [Citations.] Thus, if it appears from the entire record that the jury has been made aware of adequate factors concerning relevant areas of impeachment of a witness, no constitutional question arises merely because defendant has been prohibited, on cross-examination, from pursuing other areas of inquiry. [Citation.]”

The jury here was made aware of Cunningham’s part in the crime, the fact that he was only charged with armed robbery in exchange for his testimony, and that he would not be sentenced until after his testimony in defendant’s trial. Defendant’s constitutional right to confront Cunningham was not impaired.

Finally, the determination of whether a juvenile adjudication will be allowed in evidence to impeach a witness is left to the sound discretion of the trial judge. The standard to be used is from proposed Federal Rule of Evidence 609(d) (51 Fed. R. Dec. 391), which allows such impeaching evidence if “conviction of the offense would be admissible to attack the credibility of an adult and the judge is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.” (See People v. Puente (1981), 98 Ill. App. 3d 936, 424 N.E.2d 775.) In making its ruling, the trial court stated that the facts here presented a close question. We think it would be a better practice to allow impeachment by juvenile adjudications when, as here, a witness is critical to the State’s case. (See Holsey.) However, absent the impairment of any of defendant’s constitutional rights and given these facts, we cannot say that the trial court abused its discretion.

Defendant next contends that he was deprived of a fair trial because the court refused to allow him to call a “surprise” witness. At 2:50 p.m. on February 3, eight days after trial had begun and immediately before the defense rested, defense counsel notified the court of the discovery of a new witness, Virginia Murphy. The court was told that defendant had always maintained that the witness existed, but her identity was unknown because of a “misapprehension” on the part of defense counsel. The “misapprehension” was never explained. The court was further told that the identity of the missing witness was discovered on February 1; that on February 2 a detective agency was hired to locate her in Florida; and that on the morning of February 3 she was located and talked by phone with defendant’s attorneys.

They related that in the conversation, Murphy said that she had worked at Nashville City the morning of the murder and left work with an unknown male companion between 2:30 and 2:45 a.m. As they were crossing a street, a pickup truck with lights mounted on the hood turned the comer and almost struck them. Her companion made some kind of comment about the driver, as did a man who was standing on the other corner. She gave a description of that unidentified man, which description was consistent with defendant’s appearance. She also said she saw the same man later that morning at Smiley’s Restaurant in downtown Quincy.

Defendant had earlier testified that when he was returning from his 45-minute hiatus to where he thought his truck was parked, he saw Cunningham drive the truck around the very same corner, almost strike a man and a woman, and heard the man make a comment to the woman. According to defendant, when this occurred he was on the same corner as Murphy’s unidentified man, but defendant did not testify that he made any comment to Murphy about the driver. Defendant’s truck had snowplow lights mounted on the hood, and defendant did testify that he was in Smiley’s Restaurant later that morning.

Defendant requested a continuance to allow Murphy to travel from Florida and testify at the trial. Defendant maintained that Murphy’s testimony would corroborate his story that he was not with Cunningham between 2 a.m. and 2:45 a.m. when Bowen was murdered. The trial court refused to allow Murphy to be called because the prosecution had not been apprised of defendant’s intent to call her as a witness as required by Supreme Court Rule 413(d)® (87 Dl. 2d R. 413(d)®). The court further noted the facts that it was not shown that Murphy would identify defendant as the man on the corner and that defendant had not testified he made a comment to the woman made Murphy’s testimony of doubtful relevancy.

Supreme Court Rule 413(d)® requires a criminal defendant to disclose in discovery the name of each person whom he intends to call as a witness. Supreme Court Rule 415(g) (87 Ill. 2d R. 415(g)) authorizes the trial court, among other sanctions, to exclude evidence related to a discovery violation. Such exclusion is within the sound discretion of the trial court, whose discretion will only be reviewed upon a party’s showing of prejudice. People v. Steel (1972), 52 Ill. 2d 442, 450, 288 N.E.2d 355, 360.

The prosecution was not notified of the existence of Murphy until February 2, nor of defendant’s intent to call her as a witness until February 3. Defendant maintains that he did not violate Rule 413(d)® because he did not “intend” to call her until February 3. There is support for defendant’s position that he did not violate Rule 413(d)®. (See People v. Pozzi (1976), 42 Ill. App. 3d 537, 356 N.E.2d 186; People v. Rayford (1976), 43 Ill. App. 3d 283, 356 N.E.2d 1274.) However, we do not decide that issue inasmuch as we affirm the trial court’s ruling on the ground that the denial of the continuance was within its sound discretion.

“The granting or denial of a continuance to obtain evidence or procure a witness is within the discretionary power of the trial court. [Citation.] When reviewing the exercise of the court’s discretion, this court must determine whether defendant had acted diligently in his attempts to obtain the evidence [citation], whether the evidence would be material to the case and might affect its outcome [citation], and whether defendant has been prejudiced in his right to a fair trial. [Citation.]” (People v. Robinson (1973), 13 Ill. App. 3d 506, 510, 301 N.E.2d 55, 57.)

Defendant was charged in September and the trial was not held until over four months later. As the trial court stated, “if [Murphy] was findable yesterday or the day before, she could have been found four months ago.” The materiality of Murphy’s proposed testimony hinged on its placement of defendant on the street corner rather than in the truck as it was returning to town. (Even then it is not clear that defendant’s participation in the murder would be necessarily precluded.) Defense counsel admitted that it was unknown whether Murphy would identify defendant as the unknown man on the corner, and defendant’s version of events differed in an important detail from Murphy’s. It is quite possible that defendant viewed the incident between Murphy and the truck from the driver’s seat of the vehicle.

The trial court was faced with the dilemma of a considerable delay of unknown extent in a complicated trial that after eight days was near its close, because a snowstorm made it uncertain as to how soon Murphy would arrive from Florida, and upon her arrival the State would demand its right to investigate her vague story and search for her unknown male companion. All this for testimony that was of doubtful relevancy. While we think that given the seriousness of the offense and the peculiarities of the facts, it might have been better for the court to have taken a short continuance, we cannot say that the trial court abused its discretion in denying the same.

In any event, subsequent to trial, there was introduced into the record a sworn affidavit by Murphy in which she stated that after meeting (subsequent to the trial) with the police, defendant’s counsel, and the defendant, she was certain that defendant was not the unidentified man on the corner who made the comment to her. We conclude that the excluded testimony would not have affected the outcome of the case, and defendant was not prejudiced in his right to a fair trial by the exclusion of Murphy as a witness.

Affirmed.

WEBBER, P.J., and GREEN, J., concur.


author: JUSTICE MILLS

text:
    RICHARD CONNER, Plaintiff-Appellee, v. THE COPLEY PRESS, INC., et al., Defendants-Appellants.
    Fourth District
    No. 4—82—0396
    Opinion filed January 27, 1983.
    Barber, Hall, Segatto & Hoffee, of Springfield (Barry O. Hines, of counsel), for appellants.
    Wayne B. Giampietro and Kathrin A. Koenig, both of DeJong, Poltrock & Giampietro, of Chicago (Andrew J. Leahy and Cheryl Redfield, both of Leahy & Leahy, of counsel), for appellee.
   JUSTICE MILLS

delivered the opinion of the court;

This appeal involves pure procedure.

We deal here with nonsuits and dismissals — voluntary and otherwise.

Defendants were granted this interlocutory appeal (87 Ill. 2d R. 308) to determine whether the plaintiff’s action for libel is untimely.

We conclude that it is.

We reverse.

The plaintiff filed a libel action in Federal court, but it was dismissed for lack of subject matter jurisdiction; the plaintiff then filed the instant action in State court after the applicable statute of limitations had run. This appeal turns on what is now section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13— 217), formerly section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a), which in a variety of circumstances (including dismissal by a Federal court for lack of jurisdiction) permits a party to begin a new action even though the statute of limitations has already run. The defendants argue that the version of the statute applicable here (Ill. Rev. Stat. 1977, ch. 83, par. 24a) did not include within its scope Federal dismissals for lack of jurisdiction.

The procedural history of this case is short and undisputed. Three allegedly libelous newspaper articles were published April 29, April 30, and May 20, 1977; the plaintiff filed an action for libel in United States District Court April 24, 1978, within the one-year period for bringing actions for defamation, libel, and slander (Ill. Rev. Stat. 1977, ch. 83, par. 14). The defendants then advised the district court that the plaintiff and defendant Copley Press, Inc., were residents of the same State, California, and on October 4, 1978, the Federal court dismissed the complaint for lack of subject matter jurisdiction. On December 14, 1978, the plaintiff filed the instant action in State court. Bound by Cranwill v. Donahue (1981), 99 Ill. App. 3d 968, 426 N.E.2d 337, which gave retroactive effect to the amendment adding Federal dismissals for lack of jurisdiction to section 24, the circuit judge denied the defendants’ motion to dismiss the complaint as untimely. This appeal followed, and we reverse.

From October 1, 1976, through December 31, 1979, section 24 provided that “if judgment is given for the plaintiff but reversed on appeal; or if there is a verdict for the plaintiff and, upon matter alleged in arrest of judgment, the judgment is given against the plaintiff; or the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution ***” a new action could be brought within the greater of one year and the time remaining on the period of limitation (Ill. Rev. Stat. 1977, ch. 83, par. 24a). Effective January 1, 1980, section 24 was amended to add a clause concerning dismissal by Federal district courts for lack of jurisdiction (Ill. Rev. Stat. 1979, ch. 83, par. 24a). The question here is whether this amendment merely expressed what was previously implicit or, alternatively, should be given retroactive effect. We conclude from the recent history of section 24, which is set out below, that the version existing from October 1, 1976, through December 31, 1979, did not include Federal dismissals; we also conclude that the amendment adding them does not apply retroactively.

In Roth v. Northern Assurance Co. (1964), 32 Ill. 2d 40, 203 N.E.2d 415, the plaintiff’s action in Federal court to collect on five insurance policies was dismissed for lack of subject matter jurisdiction. The plaintiff then sued in State court but after the expiration of the standard insurance clause requiring that actions be brought within 12 months of loss — the Federal suit had been filed within that time. The defendant insurance companies in Roth argued, among other issues, that the phrase, “if the plaintiff be nonsuited,” in section 24 (Ill. Rev. Stat. 1963, ch. 83, 24a) did not include dismissals for lack of jurisdiction. In an opinion by Justice Schaefer, the supreme court disagreed, relying on Sachs v. Ohio National Life Insurance Co. (7th Cir. 1942), 131 F.2d 134, which had said that section 24 is remedial and therefore should be construed liberally and that nonsuits and dismissals for lack of jurisdiction are sufficiently similar in purpose and effect that “nonsuit” includes the other.

Effective October 1, 1976, an amendment to section 24 deleted “nonsuit” and added “voluntary dismissal.” (Ill. Rev. Stat. 1977, ch. 83, par. 24a.) “Nonsuit” is a general term and includes two kinds of dismissals: voluntary and involuntary. (Black’s Law Dictionary 954 (5th ed. 1979).) In Hupp v. Gray (1978), 73 Ill. 2d 78, 382 N.E.2d 1211, the plaintiff’s action in Federal court was involuntarily dismissed, and that decision was affirmed on appeal; the plaintiff then brought suit in State court. Discussing in dictum the effect of the 1976 amendment, the court said:

“During the pendency of this case in the appellate court, the legislature amended section 24 by substituting the words ‘the action is voluntarily dismissed by the plaintiff’ for the words ‘if the plaintiff is nonsuited’ (Ill. Rev. Stat. 1977, ch. 83, par. 24a). Consequently, as the statute now reads, its protection would now be unavailable to plaintiff, since his action was [involuntarily] nonsuited and not voluntarily dismissed.” (73 Ill. 2d 78, 82, 382 N.E.2d 1211, 1213.)

A dismissal for lack of jurisdiction is in no sense voluntary. The deletion of “nonsuit” effectively limited involuntary nonsuits to the one kind remaining in the section: dismissals for want of prosecution. Deprived of its synonym “nonsuit” (Roth), a dismissal for lack of jurisdiction could no longer be used to invoke section 24.

The legislature quickly closed this gap. Section 24 was amended, effective January 1, 1980, to include dismissal by a Federal district court for lack of jurisdiction; the reference to voluntary dismissals was retained. We conclude that from October 1, 1976, when voluntary dismissals replaced nonsuits, until January 1, 1980, when Federal dismissals were added, section 24 did not provide relief to plaintiffs whose Federal actions had been dismissed for lack of jurisdiction.

The plaintiff argues alternatively that the 1980 amendment applies retroactively; Cranwill v. Donahue (1981), 99 Ill. App. 3d 968, 426 N.E.2d 337, reached that result under a chronology similar to the one here, but without discussing retroactivity. An amendment to a statute of limitations cannot be applied retroactively to revive a cause of action already barred unless the amendment provides to the contrary (Wilson-Raymond Constructors Co. v. Industrial Com. (1980), 79 Ill. 2d 45, 402 N.E.2d 584), which the 1980 amendment to section 24 does not do.

The plaintiff argues that rather than being a true or usual limitations period on bringing actions, section 24 provides a unique remedy for merely procedural mistakes or lapses; as a change in procedure, the 1980 amendment may therefore be applied retroactively. (Hogan v. Bleeker (1963), 29 Ill. 2d 181, 193 N.E.2d 844.) Giving the 1980 amendment retroactive effect would, however, violate precedent by reviving an extinguished liability and depriving the defendants of a vested right, the defense of the statute of limitations. (Wilson-Raymond Constructors; Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill. 2d 161, 380 N.E.2d 782.) Declining to follow Cranwill, we therefore conclude that the 1980 amendment to section 24 does not apply retroactively.

Reversed.

TRAPP and LEWIS, JJ., concur.


author: JUSTICE LORENZ

text:
    ANTHONY INTINI III et al., Plaintiffs-Appellants, v. ANN MARINO, Defendant-Appellee.
    First District (5th Division)
    No. 81—2150
    Opinion filed January 28, 1983.
    Intini and Associates, of Chicago (Anthony Intini, III, and Benjamin DiGiacomo, of counsel), for appellants.
    Ordower & Ordower, P.C., of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs’ second amended complaint for damages and for specific performance of a contract for the sale of real estate was dismissed with prejudice. They appeal from the order of dismissal and present as the only issue whether the second amended complaint alleged the existence of a valid contract and thereby stated a cause of action for specific performance.

The hearings on defendant’s motion to strike and dismiss the second amended complaint adduced the following:

On December 1, 1979, defendant entered into a written agreement with the House of Realty, Inc., a corporation authorizing it or its agents, servants and employees to sell her residence at 6360 Indian Road, Chicago.

After Sandi Goldsher, a broker with the House of Realty, Inc., informed them that Benjamin Ordower, an attorney, had authority to enter into a real estate sales contract on defendant’s behalf, and that plaintiffs should submit their offer to Ordower, plaintiffs on May 14, 1980, submitted a second signed offer to purchase to him. When Or-dower met with Anthony Intini on May 16, 1980, he confirmed his authority to contract on behalf of the defendant.

They discussed the offer and when Ordower changed the terms of the May 14, 1980, offer by: (a) increasing the purchase price; (b) changing the date of possession and closing date; and (c) changing the terms of the mortgage payments, Ordower agreed to draft an appropriate document memorializing the changed terms of plaintiffs submitted second offer because “he had crossed out and initialled changes in the signed [real estate] contract [sic] of May 14,1980.”

Upon receipt by plaintiffs of Ordower’s new proposed agreement on May 23, 1980, they noted that Ordower had incorporated changes differing from previous offers, including inter alia, a provision calling for a $5,000 earnest money deposit to be made within five days. Ordower’s proposal was unsigned and undated. Later that day when Anthony Intini called Ordower to discuss the “minor discrepancies” in his proposal, including the earnest money deposit, he was informed by Ordower’s son and partner, Larry, that Ordower was out of town.

Thereafter, plaintiffs sold their own residence, arranged to surrender possession to their purchaser on or about June 30, 1980, retained professional movers, and entered into contracts for the purchase of furniture for their new home and when Anthony Intini spoke to Salvatore Marino, defendant’s son, Salvatore indicated that everything was satisfactory and that the closing date would be delayed until Ordower’s return.

However, after plaintiffs learned on June 7, 1980, that defendant had entered into a real estate contract to sell the subject property to a third party through Ordower and the House of Realty, Inc., and that on or about May 26, 1980, Goldsher had been instructed by Larry Or-dower to accept a real estate contract from the third party who had since moved into the property and been given clear title by the defendant Anthony Intini. Anthony Intini filed his verified complaint for specific performance on June 12, 1981. He subsequently amended it to include his wife Kathleen as a party plaintiff. Later after various pleadings were filed, plaintiffs filed their second amended complaint. Defendant’s motion to dismiss this complaint stating, inter alia, that “the alleged contract upon which [the] complaint is based was an unwritten contract” in violation of the Statute of Frauds (Ill. Rev. Stat. 1975, ch. 59, par. 2) was granted with prejudice on July 31, 1981 and this appeal followed.

Opinion

Specific performance is an equitable remedy in which the court orders a party to perform his contractual obligations. (Powell v. Huey (1908), 145 Ill. App. 477, aff’d (1909), 241 Ill. 132, 89 N.E. 299.) But the courts will not order specific performance of an agreement for the sale of real estate unless there is a valid, binding, complete, and definite contract which includes the names of the vendors and vendees, an adequate description of the property and the terms of the sale. Joseph v. Evans (1930), 338 Ill. 11, 170 N.E. 10; Bliss v. Rhodes (1978), 66 Ill. App. 3d 895, 384 N.E.2d 512; McDaniel v. Silvernail (1976), 37 Ill. App. 3d 884, 346 N.E.2d 382; Pocius v. Fleck (1958), 13 Ill. 2d 420, 150 N.E.2d 106.

Thus, it is clear that plaintiffs must allege the existence of a valid and enforceable written or oral contract before the remedy of specific performance may be granted.

Initially, we consider whether plaintiffs have alleged the existence of a written contract. Ordinarily, if the clear intent of the parties is that neither will be legally bound until the execution and delivery of a formal agreement, then no contract comes into existence until such execution and delivery. Restatement (Second) of Contracts, Explanatory Notes sec. 27, comments a and b, at 78-79 (1979); Brunette v. Vulcan Materials Co. (1970), 119 Ill. App. 2d 390, 256 N.E.2d 44.

This legal principle is applied even more strongly to contracts for the sale of land. The Statute of Frauds requires that a contract to convey land be evidenced by a writing signed either by the parties to be charged (Uscian v. Blacconeri (1975), 35 Ill. App. 3d 80, 340 N.E.2d 618) or by some other person lawfully authorized in writing by the party to be charged. Ill. Rev. Stat. 1979, ch. 59, par. 2.

We considered a similar issue in Flannery v. Marathon Oil Co. (1979), 75 Ill. App. 3d 690, 394 N.E.2d 706. There, the plaintiff signed a written offer to purchase real estate and mailed it to defendant’s agent and real estate representative with a check for $5,000. Subsequently, defendant’s agent returned both the check and the signed offer to plaintiff. Plaintiff’s complaint sought specific performance of the alleged contract between the parties for sale of the real estate.

Finding “the crucial point [to be] that the written offer to purchase was never signed by defendant as the party to be charged or by any person lawfully authorized by defendant,” the Flannery court held that the offer never ripened into an enforceable contract and never became binding upon defendant so that specific performance was properly denied by the trial judge. Flannery v. Marathon Oil Co. (1979), 75 Ill. App. 3d 690, 693-94, 394 N.E.2d 706, 709.

In the present case, an examination of the record shows that, as in Flannery, no contract was ever signed by the parties to be charged. The only signed instrument apparent of record is the May 14 offer to purchase which was submitted and signed by plaintiffs alone.

In addition, the issue of Ordower’s authority is immaterial because the record fails completely to allege that he ever received a written authorization signed by defendant which authorized him to act for defendant in this regard, or that Ordower himself ever signed a contract. Therefore, we find that plaintiffs have failed to allege the existence of a written contract between the parties to be charged.

Next we consider whether plaintiffs have pleaded sufficient facts to establish the existence of an oral contract.

Generally, an oral contract to transfer real estate is unenforceable under the Statute of Frauds (Ill. Rev. Stat. 1979, ch. 59, par. 2; Hubbard v. Schumaker (1980), 82 Ill. App. 3d 476, 402 N.E.2d 857) although they have been enforced in equity in certain cases to furnish more complete and fuller justice than afforded by law. The remedy is allowed where the contract has been fully performed by one party, but performance must be such that if the remedy is withheld it would be a fraud upon the promisee if not carried out. Pocius v. Fleck (1958), 13 Ill. 2d 420, 150 N.E.2d 106.

The test for specific performance of an oral contract was set forth in Blaise v. Stein (1979), 75 Ill. App. 3d 793, 394 N.E.2d 836. There, the court stated that: “Before a court may exercise that discretion in favor of granting the remedy in the case of an oral contract which would normally be unenforceable under the Statute of Frauds, the court must find that the terms of the contract are clear, definite, and unequivocal [citations], that the contract has been at least partially performed by the party seeking the remedy [citations] and that the acts allegedly done in performance are positively attributable exclusively to the contract [citations].” Blaise v. Stein (1979), 75 Ill. App. 3d 793, 796, 394 N.E.2d 836, 839.

In the present case with these principles in mind, it is clear that when we review the allegations presented in plaintiffs’ second amended complaint, we do not find that the essential “meeting of the minds” necessary for the formation of a contract was established by Intini.

It is clear that the earnest money deposit of $5,000 remained an issue between the parties, and that no check, deposit, or consideration of any form was alleged to have exchanged hands. Nor was there any acceptance of the changed terms of the proffered offers of either plaintiffs or Ordower. Consequently, we do not find that plaintiffs have sufficiently alleged an oral contract whose terms were clear, definite and unequivocal.

Moreover, we find that plaintiffs’ allegations of “partial performance” of the oral contract which would remove it from the prohibition of the Statute of Frauds (Ill. Rev. Stat. 1975, ch. 59, par. 2) consist of the acts of selling their own residence and entering into contracts for relocating and furnishing the new residence. While arguably contingent upon a successful resolution of a real estate sales contract between the parties, none of these actions were required by the actual offer to purchase real estate itself. Thus, plaintiffs’ argument that they set forth facts sufficient to establish an oral contract must likewise fail.

Accordingly, we find that the trial court properly dismissed plaintiff’s complaint for specific performance for failure to state a cause of action.

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

Affirmed.

WILSON, P.J., and MEJDA, J., concur.

      The Statute of Frauds (Ill. Rev. Stat. 1975, eh. 59, par. 2) provides in pertinent part: “No action shall be brought to charge any person upon any contract for the sale of lands *** unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party. ***”


author: JUSTICE O’CONNOR

text:
    MATTHEW CONNELLY, a Minor, by his Parents and Next Friends, James Connelly et al., Plaintiffs-Appellees, v. WESLEY F. GIBBS et al., Defendants-Appellants.
    First District (1st Division)
    No. 81—2321
    Opinion filed January 31, 1983.

      Ancel, Clink, Diamond, Murphy & Cope, P.C., of Chicago (Marvin J. Clink and Peter D. Coblentz, of counsel), for appellants.
    Canel, Aronson & Whitted, of Chicago (Richard J. Aronson and Brooke R. Whitted, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Matthew Connelly, a 15-year-old hearing-impaired child with resultant learning disabilities, brought an action by his parents, James and Laureen Connelly, against Wesley E Gibbs and Niles Township High School District 219, for damages and for a permanent mandatory injunction requiring that he be enrolled as a resident in the free schools of District 219. The trial court denied defendants’ motion for judgment on the pleadings and severed the issue of residency for the purpose of trial, the parties stipulating that should residency be determined in favor of plaintiff, defendants had an independent legal duty to provide him with an appropriate education.

A hearing commenced on August 6, 1981, during which the court assessed the issue of residency as “blurred and complicated” by plaintiffs’ ownership and dual occupancy of both a condominium in Skokie and a family residence in Chicago. Nonetheless, the court found Matthew to be a resident of Skokie and issued a permanent mandatory injunction requiring District 219 to provide him with a free and appropriate public special education. Defendants appeal the court’s determination of residency and granting of injunctive relief, as well as its earlier denial of their motion for judgment on the pleadings. We disagree with the trial court’s findings with respect to residency and reverse on that issue alone.

The following undisputed facts were adduced at the hearing: James and Laureen Connelly had been married for 24 years and had never been separated or divorced. They had four children besides Matthew: one son who was then living away at school, another who was married and living in San Francisco, a daughter attending college who had left home and moved in with a girlfriend one week before the hearing, and a fourth son who was planning to attend college and live in a dormitory as of the following September. The Connellys own a four-bedroom home located at 6750 North Ionia in Chicago (hereinafter referred to as the Chicago residence) and had owned that home for 15 or 16 years at the time of the hearing.

In June of 1980 Matthew had graduated from the Alexander Graham Bell Elementary School in the Chicago School District, where he had been attending a program for hearing-impaired students, and was designated by that District for placement at Whitney Young High School, a magnet school with a hearing-impaired department serving approximately 250 children from the entire city of Chicago. The Connellys were particularly concerned with the lack of vocational training at the Chicago school, however, and decided in June of 1980 that they would not send Matthew to Whitney Young. Rather, pursuant to a recommendation by the Siegel Institute of Michael Reese Hospital, the Connellys petitioned High School District 214 in Arlington Heights for Matthew’s admission on a tuition basis to a regional hearing-impaired program conducted at John Hersey High School (Hersey). The Hersey program is operated by District 214 under a contract with the Low Incidence Cooperative Agreement (LICA), a joint agreement of 48 elementary and high school districts in the north and northwest suburbs of Chciago. Under the agreement, District 214 pays the cost of operating the program subject to reimbursement on a tuition basis by each of the school districts belonging to LICA that have students in the program. Defendant District 219 is also a member of LICA and any eligible hearing-impaired child who is a resident of District 219 is entitled to attend the hearing-impaired program at Hersey at no cost to them, to be paid for by the School District. The Connellys’ petition for admission to Hersey was ultimately denied at a staff conference held on September 18, 1980.

Although the Connellys did not inform anyone at LICA or District 214 at the September 18 staff conference or prior thereto that they had signed a contract to purchase a condominium in Skokie in August 1980, they did indicate to at least one staff member who was present that they had more or less expected Matthew’s rejection. This expectation was further evidenced by the fact that Mrs. Connelly went that same day to Niles West High School in District 219 to enroll Matthew as a resident there, requesting his placement in the program at Hersey as soon as possible. Mrs. Connelly informed the District that they were purchasing a home within its boundaries. Pursuant to this information, Matthew was scheduled to commence a program at Hersey on November 3, 1980; however, Matthew did not begin school on that date because defendants had received information that the Connelly family had not, in fact, moved to Skokie. Defendants were so notified by Louise Wilson, an employee of District 214 and teaching consultant at Hersey. Wilson telephoned Mrs. Connelly at the Chicago residence on October 22 to find that Mrs. Connelly had not moved out of Chicago and had no present intentions to do so. Rather, Mrs. Connelly explained to Wilson that her husband and Matthew would live in the Skokie condominium during the week, returning to the Chicago residence to share dinner with Mrs. Connelly and the rest of the family, and would reside at the Chicago residence only on weekends. Based on this information, it was determined that plaintiffs failed to meet the residency requirements of District 219 and the Connellys were so advised on October 31,1980.

On November 3, the Connellys met with Rita Stewart of District 219 to discuss the question of their residency. At that time, Mr. Connelly produced his Skokie phone bill, an insurance policy on the condominium and a Skokie voter’s registration card. The Connellys explained to Stewart that they wanted the best education available for Matthew, which they did not feel was possible in their present district. In response to Stewart’s questioning as to why they had not moved the entire family into District 219, the Connellys responded that, due to the currently depressed housing market, it seemed unadvisable to try to sell the Chicago residence at that time, and also that they felt it would be unfair to their other children to uproot them from their home and friends. The Connellys were told that the matter would be taken “under advisement.” They allege that no further investigation was in fact undertaken by defendants before plaintiffs instituted the present action.

In addition to the facts thus stated, it was established at the hearing that during the summer of 1980, while their petition for tuition placement in District 214 was still pending, the Connellys began looking for a house to purchase in the suburbs of Lincolnwood, Skokie and Morton Grove, all of which fall within District 219, and in Arlington Heights. The Connellys looked at eight to 12 houses with two or three bedrooms, all in the $150,000 range. The Connellys never made an offer to purchase a single-family house, however, and although they had two appraisals on their Chicago residence, they never went so far as to list that house for sale with a broker because they felt the appraised value was below what it should be. Nor did they at any time consider renting a house which would accommodate the entire family, because, as Mr. Connelly testified, it did not suit their personal lifestyle.

Having rejected the idea of selling the Chicago residence and purchasing a new single-family residence, the Connellys began looking at one-bedroom condominiums in the same area and in August 1980, after having viewed three or four, signed a contract to purchase a four-room, one bedroom, condominium at 8521 Lotus in Skokie. The family’s Chicago residence is within walking distance of Mr. Connelly’s place of employment, while the Skokie condominium is slightly farther, but within a few minutes of driving time. The Connellys paid $40,000 cash for the condominium for which they closed in October of 1980, and claim that James, Laureen and Matthew have lived there and have been residents of Skokie and District 219 since that time.

In addition to utility bills and an insurance policy on the Skokie condominium and his voter registration card, Mr. Connelly produced a vehicle registration sticker, library card and income tax returns, all indicating the Skokie address. The Connellys also showed evidence of membership in the condominium association, had attended at least one semi-annual association meeting and Mr. Connelly had participated in some cooperative painting of the common areas. Mrs. Connelly, on the other hand, remained registered to vote in Chicago and had voted there in the most recent elections. The Connelly family also owned two cars which were registered to the Chicago address. The Connellys introduced the testimony of a neighbor at the condominium who had seen Mr. Connelly and Matthew approximately 40 times over the preceding 11-month period and had seen Mrs. Connelly there four or five times. The witness did not recall seeing Matthew separately on any of those occasions.

The general rule in Illinois is that the residence of parents is the residence of their children. (Ashley v. Board of Education (1916), 275 Ill. 274, 114 N.E. 20; Turner v. Board of Education (1973), 54 Ill. 2d 68, 294 N.E.2d 264.) Ashley also made clear that the “residence” required for school purposes “*** is not such as would be required to establish the right to vote ***” and that a residence, even for a temporary purpose, in a school district is sufficient to entitle children of school age to attend school, so long as the residence is not established solely to enjoy the benefits of free schools. (Ashley v. Board of Education (1916), 275 Ill. 274, 278.) Conversely, a minor child’s dwelling in a school district solely for the purpose of attending public school in the district will not be considered residency in the district for school purposes. (Turner v. Board of Education (1973), 54 Ill. 2d 68, 72; Dean v. Board of Education (1944), 386 Ill. 156, 53 N.E.2d 875.) As stated in Ashley, “[t]he removal of a portion of a family from the legal domicile to another district in order to send to the free schools thereof does not confer the right to do so.” Ashley v. Board of Education (1916), 275 Ill. 274, 279.

Based on the physical exhibits and testimony, the trial court con-eluded that the Connellys were residents of District 219 and, therefore, that Matthew was also a resident of District 219 for school purposes. The court also found that the Connellys had not established a dwelling in Skokie solely for the purpose of enjoying the benefits of a free public education in District 219, but had satisfactorily demonstrated “*** other valid reasons for seeking to establish Skokie as the current and future permanent home of their son Matthew and for themselves ***.”

Our courts have long held intent to be the critical question in determining residence, and in determining intent a person’s acts are to be given more weight than his declarations. (Miller v. Police Board (1976), 38 Ill. App. 3d 894, 898, 349 N.E.2d 544, appeal denied (1976), 63 Ill. 2d 557; Stein v. County Board (1968), 40 Ill. 2d 477, 240 N.E.2d 668.) Plaintiff in Miller was a police lieutenant who was charged with violating certain rules of the Chicago Police Department, including a rule requiring all officers to reside within the corporate boundaries of the City. Although Miller had maintained an apartment in Chicago for three years, his wife and children lived in the suburb of Villa Park. As in this case, plaintiff was not divorced or separated, but claimed, as do the Connellys, that he spent four or five nights a week at the Chicago apartment and two or three nights a week with his family in Villa Park. Miller, like Mr. Connelly, also spent his days off at the family residence, working to maintain the premises. As proof of residency, Miller produced substantially the same physical exhibits as did plaintiffs here. The court, in Miller, reasoned that “residence” is established by physical presence and the intent to make that location a permanent residence, concluding that “*** a person may not have a permanent residence in two places at the same time.” (38 Ill. App. 3d 894, 897-98.) In finding that Miller was a resident of Villa Park and not of Chicago, the court also placed a significant reliance on the marital and family relationship, stating that “[i]t would be unusual for a family man, not separated or divorced, to have a separate permanent residence from his family.” 38 Ill. App. 3d 894, 898.

In light of the rationale set forth in Miller, we conclude that the trial court’s finding that James, Laureen and Matthew Connelly were permanent residents of Skokie was against the manifest weight of the evidence. There is no question but that at the time the Connellys purchased the four-room condominium in Skokie they did not intend that their entire family, or even those remaining at home, would reside there, as such would have been physically impossible. In fact, from the time the Connellys took possession up until the date of hearing, only one Connelly child other than Matthew had stayed overnight in Skokie and had done so on no more than two occasions. The Connellys freely admitted that the Chicago residence continued to serve as a “home base” for all of the children when they got together during vacations and on holidays. On those occasions when Mr. Connelly and Matthew did stay overnight in Skokie, Mr. Connelly would drive Matthew to the Chicago residence the following morning and the two would often have breakfast there. Before leaving the Skokie condominium, Mr. Connelly would program a call-forwarding feature so that phone calls made to the Skokie number during the day would be received at the Chicago residence. Matthew would spend the remainder of the day in Chicago, where he could be supervised by Mrs. Connelly or another family member. After work, Mr. Connelly would return to Chicago, where he and Matthew would share dinner with the rest of the family before returning to Skokie to sleep. Since October of 1980, Mrs. Connelly had spent most of her time in Chicago, visiting the Skokie condominium or sleeping there on an average of one or two times a week. The Connellys claimed four of their children as dependents on their 1980 Federal income tax return and Mr. Connelly testified that he still exercised parental control over the two younger children who resided in Chicago during the time he and his wife claimed to be permanent residents of Skokie. We believe plaintiffs’ acts evidenced an intent, contrary to their declared intent, to retain their permanent residence in Chicago.

The sole question before us, therefore, is whether plaintiffs can establish a second residence in another district, so long as they offer any justification other than education for the temporary residence, and thereby gain a tuition-free education in the second district.

Plaintiffs seek to rely on a line of residency cases which stand for the proposition that a child’s right to attend school is not limited to the place of his parents’ residence or of legal domicile, as long as the child is not residing in the new district solely for the purpose of attending school there (Ashley v. Board of Education (1916), 275 Ill. 274; Turner v. Board of Education (1973), 54 Ill. 2d 68), and that as long as the residence in which a child lives has a “degree of permanency” about it, the child can attend a free school in the district of that residence. Dean v. Board of Education (1944), 386 Ill. 156.

In addition to their acknowledged desire to provide Matthew with a quality program which included vocational training, plaintiffs testified as to several other reasons which, they claim, precipitated their purchase of the Skokie condominium. These justifications, which were accepted by the trial court, included their desire to help Matthew learn daily living skills and to become “an independent and productive member of society,” to enable Matthew to foster after-school relationships with other hearing-impaired children and to develop a closer father-son relationship between Matthew and Mr. Connelly. All of the evidence, however, reveals that Matthew was never left alone for any period of time at the Skokie residence and that he continued to take the majority of his meals with other family members in the Chicago home. Further, there is nothing in the record to suggest that the move to Skokie would enhance the development of the types of relationships which the Connellys purportedly sought for Matthew. The remaining justification given by plaintiffs for purchasing the Skokie condominium — to be as close to Mr. Connelly’s place of employment as the Chicago residence — indicates at best a reason for purchasing this particular condominium, as opposed to some other one. Having reviewed the record, we cannot escape the conclusion that the true motivating factor for the Connellys’ purchase of the Skokie condominium was to provide their handicapped son with what they perceived to be the best education possible. This case also differs significantly from those cases cited by plaintiffs in which the presumption of school residency being the same as the primary parental residence was overcome. Both Ashley and Dean involved the relinquishment of parental care, custody and control. In contrast, plaintiffs here maintain the care and custody of one child living in Skokie, while at the same time maintaining care and custody of their other children who continue to live in Chicago. While it is an accepted proposition that a second parental residence may be established temporarily for school purposes where, according to the exigencies of interests, a parent and child are removed for long intervals from their true residence, we find no justification for upholding the establishment of a second parental residence for school purposes which is only minutes away from the true parental residence. We believe this to be precisely the type of conduct condemned by our supreme court in Ashley. See Ashley v. Board of Education (1916), 275 Ill. 274.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded with directions to dissolve the permanent mandatory injunction and to dismiss the suit with prejudice.

Reversed and remanded with directions.

GOLDBERG and CAMPBELL, JJ., concur.


text:
      In re ESTATE OF MAX I. COHEN, Deceased.—(The People of the State of Illinois, Appellant, v. Estate of Max I. Cohen, Appellee.)
    First District (2nd Division)
    Nos. 82—543, 82—555 cons.
    Opinion filed January 18, 1983.
    Tyrone C. Fahner, Attorney General, of Springfield (Edward M. Kay, Assistant Attorney General, of counsel), for the People.
    Sherman & Lewis, of Chicago (Maurice L. Lewis, of counsel), for appellee.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

The interesting question involved in this appeal is whether a bequest to the State of Israel is exempt from Illinois State inheritance tax as a gift to a charitable organization or a bequest to a foreign nation.

Max I. Cohen, an Illinois resident, made the following bequest in his last will and testament: “I give, devise and bequeath to the STATE OF ISRAEL the sum of *** $15,000.” The executor of the estate of Max I. Cohen (Estate) filed an Illinois inheritance tax return with the circuit court which stated that this bequest was exempt and that no tax was owing on it. The Attorney General of Illinois filed objections to the tax return. In its response to the State’s proposed tax assessment, the Estate filed with the court a copy of the estate tax closing letter from the Internal Revenue Service (IRS) which the Estate claimed proved that the IRS agreed that the bequest was exempt from Federal estate tax and a letter from the Minister of Finance of the Government of Israel which indicated that the proceeds of the bequest may only be used for charitable purposes. The Estate contended that the Government of Israel allows a similar exemption to its citizens who make bequests to the United States Government or its States. The Estate further argued that the Government of Israel has created an entity which has tax exempt status to receive such bequests and that decedent’s gift will be paid to that organization.

On October 9, 1981, the presiding judge of the county division of the circuit court found in favor of the Estate and directed the Attorney General to prepare an order assessing the $15,000 bequest as exempt from Illinois State inheritance tax. (III. Rev. Stat. 1979, ch. 120, par. 401.) Pursuant to this direction, the Attorney General prepared the order which was entered by the presiding judge on November 9,1981.

On December 16, 1981, the State filed an appeal to the circuit court for review of the November 9 order. (Ill. Rev. Stat. 1979, ch. 120, par. 385.) On February 3, 1982, the presiding judge, in affirming the November 9 order, stated:

“The November 9, 1981 Order was based, in part, on the ruling by the Presiding Judge that this particular bequest to the State of Israel is exempt from taxation as a gift to a charitable organization since this bequest can only be used for charitable purposes as established by the pleadings and the Codicil to the Will of the decedent.”

The State of Illinois appeals from this final order.

I

An inheritance tax is not a tax upon property, but is a condition which the State imposes upon the privilege of succeeding to the ownership of property. (People v. Richardson (1915), 269 Ill. 275, 276-77, 109 N.E. 1003.) The section of-the Illinois Inheritance and Tax Transfer Act (Act) which imposes the tax, section 1, provides that transfers made to “persons, institutions and corporations” will be taxed in the enumerated instances, unless hereinafter exempted. (Ill. Rev. Stat. 1979, ch. 120, par. 375.) The term “corporation” has been held to be broad enough to include municipal corporations. (269 Ill. 275, 276.) Since the tax may be imposed on a governmental body, there must be an express exemption which specifically excludes it. See Board of Regents v. Illinois (1949), 404 Ill. 193, 196, 88 N.E .2d 489, appeal dismissed (1950), 339 U.S. 906, 94 L. Ed. 1335, 70 S. Ct. 571.

The exemption statute involved in this appeal is section 28 of the Act, which provides:

“Sec. 28. When the beneficial interests of any property or income therefrom shall pass to or for the use of the State of Illinois or any of its institutions, municipal corporations or political subdivisions for public purposes, any hospital, religious, educational, bible, missionary, tract, scientific, benevolent or charitable purpose, or to any trustee, bishop or minister of any church or religious denomination, held and used exclusively for the religious, educational or charitable uses and purposes of such church or religious denomination, institution or corporation, by grant, gift, bequest or otherwise, the same shall not be subject to any such duty or tax, but this provision shall not apply to any corporation which has the right to make dividends or distribute profits or assets among its members.
The exemption herein granted shall extend to persons, organizations, associations and corporations organized under the law of other states, and resident therein, provided the law of the other state grants to persons, organizations, associations and corporations organized under the law of Illinois, and resident therein, a like and equal exemption.” Ill. Rev. Stat. 1979, ch. 120, par. 401.

All tax exemption statutes, when judicially interpreted, should be strictly construed. (In re Estate of Schureman (1956), 8 Ill. 2d 125, 127, 133 N.E.2d 7.) A court should not depart from the plain language of a statute and read into it conditions or provisions which conflict with a clearly indicated legislative intent. (People v. Boreman (1948), 401 Ill. 566, 572, 82 N.E.2d 459, cert. denied (1949), 336 U.S. 927, 93 L. Ed. 1088, 69 S. Ct. 649.) Further, a court must strictly construe a tax exemption statute in favor of taxation (Hall v. Illinois Property Tax Appeal Board (1981), 98 Ill. App. 3d 824, 827, 424 N.E.2d 375, appeal denied (1981), 85 Ill. 2d 577), and the burden of proving the exemption is on the party claiming it. Telco Leasing, Inc. v. Allphin (1976), 63 Ill. 2d 305, 310, 347 N.E.2d 729.

Prior to 1939, the first paragraph of section 28 of the Act did not include bequests to the State of Illinois or any of its subdivisions. (Ill. Ann. Stat., ch. 120, par. 401, Historical Note, at 219 (Smith-Hurd 1974).) Excluding this addition, the first paragraph has been interpreted as applying only to transfers of property to domestic charities which operate within the State of Illinois. (E.g., People v. O’Donnell (1927), 327 Ill. 474, 476, 158 N.E. 727.) The bequest to the State of Israel does not fall under either gifts to the State of Illinois, or under gifts to charities operating within Illinois.

The second paragraph of section 28 of the Act, added in 1945, extends the exemption to include “persons, organizations, associates and corporations organized under the law of other states” (emphasis added), providing that the other States allow an equal exemption to our residents. We find nothing in the plain language of the statute that the legislature intended to include foreign nations in the exemption. We are satisfied that by using the words “other states,” the legislature intended only the “other states” of the United States. The word “other” certainly cannot be construed as subject to ambiguity.

The only case which the State cites, and which our research has uncovered, dealing with the issue of the tax exempt status of bequests to foreign countries is In re Estate of Wieboldt (1958), 5 Wis. 2d 363, 92 N.W.2d 849. The Wisconsin statute exempted “transfers to or for the use of corporations *** associations, foundations or trustees located in, and those organized or established under the laws of, any other state, commonwealth, territory or district, exclusively for *** charitable *** purposes.” (In re Estate of Wieboldt (1958), 5 Wis. 2d 363, 365, 92 N.W.2d 849, 851.) The statute also required reciprocity from the “other state.” The Supreme Court of Wisconsin held that since tax exemption statutes cannot be extended “beyond the fair import of their terms,” the word “other” before the word “states,” without any reference to countries or nations, precludes an interpretation that the legislature intended to include foreign countries in the exemption. In re Estate of Wieboldt (1958), 5 Wis. 2d 363, 366, 92 N.W.2d 849, 852.

In our opinion, the plain meaning of the Illinois statute does not include an exemption for bequests to foreign countries. For this reason, the judgment of the circuit court must be reversed.

II

The only issues which the Estate raised.on appeal are: (A) the November 9, 1981, order assessing the tax was a consent decree entered with the approval of both parties, thus no appeal may be taken from it; and (B) since the record on appeal is incomplete and the appellaté court must presume that the omitted portion justified the order below, this court may affirm on this point even though it was not ruled on by the circuit court.

A

A consent decree merely records the agreement of the parties and does not represent the judgment of the court. (Bergman v. Rhodes (1929), 334 Ill. 137, 143, 165 N.E. 598.) As the State points out, the November 9, 1981, order was prepared only at the direction of the presiding judge and therefore cannot be characterized as an “agreement of the parties.” This order merely formalized the finding by the court in favor of the Estate on October 9, 1981. The fact that the formal order was thereafter examined and approved by a member of the Attorney General’s office does not change this into a “consent decree.” The order reflected the mandate of the court and was not a consensus of the parties.

B

As to the Estate’s contention regarding the inadequacy of the record, the State claims that the court did not hear any arguments or evidence on the two days in question, November 9, 1981, and February 3, 1982, and thus there are no reports of proceedings. In any case, the record as supplied by the appellant is sufficiently adequate to review the issue presented before this court. See Altek, Inc. v. Vulcan Tube & Metals Co. (1979), 79 Ill. App. 3d 226, 398 N.E.2d 240, appeal denied (1980), 79 Ill. 2d 630.

For the above stated reasons, the judgment of the circuit court is reversed.

Reversed.

STAMOS and PERLIN, JJ., concur.