text:
    DEPARTMENT OF COMMUNICATIONS, Secretary of State, Plaintiff-Appellant, v. SECRETARY OF STATE MERIT COMMISSION et al., Defendants-Appellees (Department of Personnel, Secretary of State, Defendant).
    Fourth District
    No. 4—84—0296
    Opinion filed March 27, 1985.

      Stratton, Nardulli & Lestikow, of Springfield (Steven Nardulli and Judy Kjellander, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Rita M. Novak, Assistant Attorney General, of Chicago, of counsel), for appellee Secretary of State Merit Commission.
    James M. Drake, of Springfield, for appellee James Daniels.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff, Department of Communications of the Office of the Secretary of State of the State of Illinois (Department of Communications)/(Office of the Secretary), brought this action for administrative review (see Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.; Ill. Rev. Stat. 1981, ch. 124, par. 109b) of the final decision of the Merit Commission of the Office of the Secretary (Commission) in favor of James Daniels (Commission Case No. 82 — 14). By written order of March 29, 1983, the circuit court of Sangamon County struck count II of the complaint and affirmed the Commission’s decision in its entirety. This appeal followed.

Defendant Daniels has raised in argument matters which pose several issues preliminary to those posed by plaintiff Department of Communications. First, was the Department of Personnel of the Office of the Secretary (Department of Personnel) made party to the administrative review action? Second, is it properly a party to this appeal? If not, the appeal must be dismissed as to the Department of Personnel. Third, if the Department of Personnel was made party to the administrative review action, what is the effect of the lack of service on it, or appearance by it, as to the judgment below and the jurisdiction of this court on appeal?

A careful examination of the record is necessary to explain the caption on appeal, the arguments of the parties, and the resolution of these issues.

The Commission proceeding was captioned “JAMES DANIELS, Petitioner, vs. DEPARTMENT OF PERSONNEL, SECRETARY OF STATE, STATE OF ILLINOIS, AND THE DEPARTMENT OF COMMUNICATIONS, Respondent.” (Emphasis added.) The decision of the Commission was, by its terms, certified to the Director of the Department of Personnel for enforcement on October 12, 1982.

This action was timely filed in the circuit court for administrative review on November 5, 1982, captioned “Department of Communications, Secretary of State, State of Illinois, Plaintiff, vs. Secretary of State Merit Commission, State of Illinois, and James Daniels, Defendant.” (Emphasis added.) Summonses were accordingly issued to the Commission and Daniels as defendants.

On December 8, 1982, plaintiff Department of Communications filed a petition for stay of order pending administrative review. On January 28, 1983, defendant Daniels filed a motion to strike and objections to the motion for stay, a motion to dismiss the complaint for administrative review, and a memorandum. Both the motion to dismiss and the memorandum stated that the complaint did not name or make the Department of Personnel a party plaintiff or defendant; that the Department of Personnel had filed no appeal; that the complaint was improper and in violation of section 3 — 107 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 107); and that the final order appealed from required enforcement by the Department of Personnel. Defendant Daniels’ memorandum supplied further argument, with citations, in this regard.

On February 24, 1983, plaintiff Department of Communications filed a motion which moved the court to “add as an additional party Defendant *** the Defendant Department [of] Personnel,” and stated:

“(1) On November 8, 1982 a Complaint for Administrative Review was filed with the Circuit Court of Sangamon County. The named Plaintiff was the Secretary of State, Department of Communications.
(2) The Secretary of State, Department of Personnel, was not included as a party Defendant, although they were a party to the proceedings before the Merit Commission.
(3) Ill. Rev. Stat., ch. 110, sec. 3 — 111(a)(3) and (4) provides that, in Administrative Review, the Circuit Court has the power to allow substitution of parties and to realign parties Plaintiff and Defendant.
(4) The Circuit Court maintains the discretionary authority to permit amendment of a Complaint in Administrative Review by the addition of additional parties Defendant. [Citation.] Plaintiffs should be given a reasonable opportunity to amend a pleading to add Defendants. [Citation.]
Wherefore, the plaintiff asks that this Court grant it leave to amend its Complaint by adding as an additional Defendant the Secretary of State Department of Personnel.” (Emphasis added.)

On March 1, 1983, defendant Daniels filed objections to the motion to add additional party defendant, objecting to the addition of a party by the plaintiff after the expiration of the statutory period provided for administrative review. He stated that (1) the court had power to review administrative action only as provided by law (Ill. Const. 1970, art. VI, sec. 9); (2) the court was without statutory authority to allow such an addition of parties (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 111); and (3) as the plaintiff did not comply with the requirements of article III of the Code of Civil Procedure (see Ill. Rev. Stat. 1981, ch. 110, pars. 3 — 101 through 3 — 112) in seeking administrative review of the Commission’s decision, it should be barred from judicial review and from the addition of parties (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 102).

At the hearing on March 1, 1983, plaintiff Department of Communications was given leave to file an appropriate petition for stay containing a verification on or before March 7, 1983, with defendant Daniels given leave to file response to such petition. On March 7, 1983, plaintiff Department of Communications filed a petition for stay. On March 15, 1983, defendant Daniels filed a “Motion to Strike, Answer and Objections to the Petition for Stay Order.”

Following argument on March 22, 1983, the court’s written order of March 23, 1983, included a provision stating “[t]he Motion of the Plaintiff to add the Secretary of State Department of Personnel as an additional party Defendant is granted, over the objection of Defendant Daniels.” (Emphasis added.)

On August 8, 1983, plaintiff Department of Communications filed a memorandum in support of the complaint for administrative review and a motion for summary judgment under count II. In each, as in the notice of filing, the cause was captioned “DEPARTMENT OF COMMUNICATIONS, SECRETARY OF STATE, STATE OF ILLINOIS, Plaintiff, vs. SECRETARY OF STATE MERIT COMMISSION, SECRETARY OF STATE DEPARTMENT OF PERSONNEL, STATE OF ILLINOIS, and JAMES DANIELS, Defendants.” (Emphasis added.)

On February 23, 1984, defendant Daniels filed a memorandum on administrative review, stating that no effort had yet been made by plaintiff to make the Department of Personnel a party to the proceeding in the circuit court. That same date Daniels filed a motion to dismiss, urging that (1) the Department of Personnel was the principal party in the matter throughout the administrative hearings and a necessary party to the action; (2) despite the court’s order permitting plaintiff Department of Communications to make the Department of Personnel a party defendant, the Department of Personnel had not been served with summons and was not, therefore, a party to the action; and (3) on September 6, 1983, the Department of Personnel, not party to or bound by the litigation, had notified Daniels that he had attained certified status in the title of executive IV, effective January 31,1983 (letter as exhibit).

On March 27, 1984, arguments were heard and, in its written order of March 29, 1984, disposing of the case, the circuit court denied defendant Daniels’ motion to dismiss for failure to join parties over Daniels’ objection.

On March 30, 1984, plaintiff Department of Communications filed a motion to vacate order of court, moving that the court “vacate its Order of March 22, 1983 [sic] adding the Secretary of State, Department of Personnel as a party Defendant and to grant leave to Plaintiff to strike the notation ‘Department of Communications’ from this case and to proceed solely in its capacity as Secretary of State.”

On April 3, 1984, the circuit court entered a written order permitting plaintiff Department of Communications to withdraw its motion to vacate order of court as erroneously filed.

Subsequently, counsel for plaintiff filed a notice of appeal, motion for stay of judgment pending appeal, and notices of filing. Each was captioned “STATE OF ILLINOIS, SECRETARY OF STATE, DEPARTMENT OF PERSONNEL AND DEPARTMENT OF COMMUNICATIONS, Plaintiff, v. JAMES DANIELS AND STATE OF ILLINOIS, SECRETARY OF STATE MERIT COMMISSION, Defendant.” (Emphasis added.)

Plaintiff has captioned its briefs to this court “STATE OF ILLINOIS, SECRETARY OF STATE, et al., Plaintiff-Appellant, v. SECRETARY OF STATE MERIT COMMISSION, and JAMES DANIELS, et al., Defendant-Appellees.” (Emphasis added.) Defendant Merit Commission has filed a brief which caption casts the parties as did plaintiff’s notice of appeal. Defendant Daniels has filed a brief which caption casts the parties plaintiff and defendant as they were when the administrative review action was brought.

On appeal, defendant Daniels argues that the Department of Personnel is not a party plaintiff, and has never been served with summons nor appeared as a party defendant. He maintains the court’s March 1983 order granted plaintiff leave to add the Department of Personnel as a party defendant and, given plaintiff’s failure to obtain service of summons on the Department of Personnel, that department has not yet been made a party defendant. He further claims that the Department of Personnel is a necessary party to this administrative review action.

Plaintiff’s position is curious indeed. It ignores the court’s March 1983 order, as well as the documents it thereafter filed, which included the Department of Personnel as a defendant, and whatever awareness is suggested by its March 30, 1984, motion, subsequently withdrawn. Its argument by reply brief appears to be that an action brought by one division of the Secretary of State, as here the Department of Communications, suffices to make the action that of the Secretary of State, and inclusive of other divisions of the Office of the Secretary, including the Department of Personnel, a division by statute (Ill. Rev. Stat. 1981, ch. 124, par. 104(a)). The reply brief also points to the fact that defendant Merit Commission has not addressed this as a jurisdictional issue. In this regard we need only note that in Cuny v. Annunzio (1952), 411 Ill. 613, 617, 104 N.E.2d 780, 782, it was held that the failure of the Director of Labor, the only named defendant, to object that the Board of Review of the Department of Labor was not made a party defendant could not operate as a waiver of the express requirement of the statute on administrative review (Ill. Rev. Stat. 1945, ch. 110, par. 264; see Ill. Rev. Stat. 1981, ch. 110, par. 3 — 107), or relieve the party seeking the review of the mandatory duty imposed on him to include as parties to the appeal all parties of record to the administrative proceeding. We note that plaintiff’s appellate counsel also represented the respondent departments in the administrative proceeding before the Commission, and brought this action for administrative review on behalf of plaintiff Department of Communications.

The jurisdiction of the circuit courts sitting in administrative review is as provided by the Constitution of 1970:

“Circuit Courts shall have original jurisdiction of all justiciable matters except when the Supreme Court has original and exclusive jurisdiction relating to redistricting of the General Assembly and to the ability of the Governor to serve or resume office. Circuit Courts shall have such power to review administrative action as provided by law.” (Ill. Const. 1970, art. VI, sec. 9.)

Article III of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.) provides the framework for administrative review. Section 3 — 102 states:

“Unless review is sought of an administrative decision within the time and in the manner herein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decision.” (Ill. Rev. Stat. 1981, ch. 110, par. 3-102.)

Section 3 — 107 states:

“In any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 107.)

Here, the Commission is the administrative agency referred to in section 3 — 107. (See Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101; Ill. Rev. Stat. 1981, ch. 124, par. 109b.) As the Department of Personnel was a named respondent to the proceedings before the Commission, and the Commission’s decision was certified to the Director of the Department of Personnel for enforcement, we find the Department of Personnel was a party of record to the administrative proceedings from which this appeal is taken. If not a party plaintiff, it was required under section 3 — 107 to be named as a party defendant to the action in the circuit court for administrative review. The circuit court’s March 1983 order allowed plaintiff’s motion to add the Department of Personnel as a party defendant. Although, as pointed out by defendant Daniels, the record contains no showing of issuance of summons as to the Department of Personnel as a party defendant, the effect is to leave the circuit court without personal jurisdiction as to that party defendant, absent personal appearance not shown here.

Section 3 — 103 provides that every action to review a final administrative decision shall be commenced within 35 days from the date that a copy of the decision sought to be reviewed was served on the party affected thereby. (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 103.) Section 3— 105 provides that summons issued shall be served on the administrative agency and on each of the other defendants. (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 105.) The Department of Personnel does not appear to have been served with summons as required.

We note that the enumerated powers of the circuit courts in administrative review include the powers to allow substitution of parties “by reason of marriage, death, bankruptcy, assignment or other cause;” and “to dismiss parties or to realign parties plaintiffs and defendants.” (Ill. Rev. Stat. 1981, ch. 110, pars. 3 — 111(a)(3), (4).) There is nothing in the record which indicates that the Department of Personnel was made a party plaintiff by the circuit court’s exercise of these powers.

Plaintiff points out that section 4 of the Secretary of State Merit Employment Code (Code) (Ill. Rev. Stat. 1981, ch. 124, par. 104), creates within the Office of the Secretary the Department of Personnel as a division thereof, but does not designate the Merit Commission as a division. Plaintiff argues that the Office of the Secretary includes the departments within it, including the Department of Communications and Department of Personnel, which are, by staff organization or statute, specifically its divisions. Plaintiff therefore urges that “the Secretary of State properly filed a lawsuit in administrative review against the Merit Commission.” We reject this argument.

Section 4 of the Code provides:

“4. Organization. There is created in the Office of the Secretary of State:
(a) a Department of Personnel, headed by a Director, which shall be a division of the Office of the Secretary of State with primary responsibility for personnel transactions;
(b) a Merit Advisory Board; and
(c) a Merit Commission.” (Ill. Rev. Stat. 1981, ch. 124, par. 104.)

The purpose of the Code, which became effective on May 24, 1977, is to establish for the Office of the Secretary a system of personnel administration based upon merit principles and scientific methods. (Ill. Rev. Stat. 1981, ch. 124, par. 102.) The provisions of the Code describe the powers and duties of the Department of Personnel, its Director, and the Commission, as well as defining the function of the Merit Advisory Board.

Presumably, the other departments and divisions of the Office of the Secretary, including the Department of Communications, are set up under the Secretary’s statutory authority to organize the work of the administration of sections 2 — 101 to 9 — 110 of the Illinois Vehicle Code (see Ill. Rev. Stat. 1981, ch. 951/2, pars. 2 — 101 through 9 — 110; see pars. 2 — 101 and 2 — 102); or as otherwise provided by law, for example, under the State Records Act (Ill. Rev. Stat. 1981, ch. 116, par. 43.4 et seq.), the Secretary of State is to provide for a State archives division as a repository of State records (see Ill. Rev. Stat. 1981, ch. 116, par. 43.8; Ill. Const. 1970, art. V, sec. 16).

The Director of Personnel is statutorily mandated to apply and carry out the Code and the rules adopted thereunder (Ill. Rev. Stat. 1981, ch. 124, par. 106a(l)); to prepare and submit to the Merit Commission proposed rules for all positions and employees subject to the Code, including provisions as specified under Code sections 10a through 10e (see Ill. Rev. Stat. 1981, ch. 124, pars. 110a through HOe); and to perform any other lawful acts necessary or desirable to carry out the purposes and provisions of the Code (Ill. Rev. Stat. 1981, ch. 124, par. 106a(10)). In addition to any other duties prescribed in the statute, the mandated duties and powers of the Commission include ruling upon written recommendations by the Director of Personnel to exempt certain positions from the Code, rule-making powers, and authority to direct compliance in writing if any violation of the Code is found. (See Ill. Rev. Stat. 1981, ch. 124, pars. 108c(l), (9), (11).) Rules formulated pursuant to the Code for all positions and employees subject to it have the force and effect of law. Ill. Rev. Stat. 1981, ch. 124, par. 110.

Article X of the Commission’s rules provides: -

“Section 10.01 A certified employee who believes that a personnel transaction has been falsely labeled in an attempt to deprive the Commission of jurisdiction under Section 9 of the Code and the procedures set forth in Articles VII, VIII, or IX herein, or who believes that a personnel transaction adversely affecting him violates either the Code or the Personnel Rules, may within a period of 15 days after receiving actual notice of such violation appeal in writing to the Commission.” (Emphasis added.) (Rules of the Merit Commission, art. X, sec. 10.01 (1977).)

As the Code and personnel rules bear upon many of the terms and conditions of employment within the Office of the Secretary, it is apparent to us that when an employee files an appeal with the Commission, the interests of the department or division of the Office of the Secretary against whom the charge is made cannot be equated with the interests of either the Commission or the Department of Personnel, both of which are directed to serve the purpose of the Code.

In view of the range of duties directed to the Department of Personnel, it may be a respondent named in an appeal to the Commission by an employee of the Office of the Secretary, as here. On issuance, however, the final decision of the Commission, which is subject to administrative review, is certified for enforcement to the Director of the Department of Personnel. Thus the Department of Personnel may have characteristics which seem appropriate both to a party plaintiff and defendant in administrative review, a dilemma which may be resolved through the court’s power to realign the parties. In this regard the Department of Personnel is perhaps unusual. Its relationship to other departments and divisions within the Office of the Secretary is distinct and comparable to that of the Department of Personnel of the State of Blinois established under the Personnel Code (see Ill. Rev. Stat. 1983, ch. 127, par. 63M01 et seq.), effective since July 18, 1955, as to the various offices of State government within its jurisdiction.

In conclusion, as to the first issue, we find that the Department of Personnel was not a party plaintiff to the action for administrative review; but was made a party defendant by the court’s March 1983 order.

Plaintiff did not, however, name the Department of Personnel as an appellee in the notice of appeal. Hence the caption on appeal. In view of these facts, with regard to the second issue, we conclude that the Department of Personnel has not been made party. Therefore the appeal is dismissed as to the Department of Personnel.

As to the third issue, we have found that the Department of Personnel was a party of record to proceedings before the administrative agency and, as such, it was a necessary party to the administrative review action. As has been said, the omission of such a party is a fatal defect. (See Cuny v. Annunzio (1952), 411 Ill. 613, 104 N.E.2d 780; Winston v. Zoning Board of Appeals (1950), 407 Ill. 588, 595-96, 95 N.E.2d 864, 869.) As our supreme court stated in Winston, administrative review being an innovation and departure from the common law, the procedures it establishes must be pursued in order to justify its application.

In this case, although the circuit court allowed the addition of the Department of Personnel as an additional party defendant in March 1983, the record shows neither issuance of summons and process as to that department, nor appearance by it. The court’s 1984 order from which this appeal is taken neither purports to default the Department of Personnel nor otherwise specifies disposition of the case as to it. Thus the order was not final as to all parties. The record contains no express written finding under Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)). Absent such a finding, a judgment adjudicating the claims or rights and liabilities of fewer than all the parties to the litigation is not enforceable or appealable. We conclude that the circuit court’s March 1984 order was not a final, appealable order.

For the foregoing reasons, the appeal is dismissed and the cause remanded.

Appeal dismissed; cause remanded.

GREEN, P.J., and MILLS, J., concur.


source: Caselaw Access Project

author: JUSTICE TRAPP

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN A. KRANKEL, Defendant-Appellant.
    Fourth District
    No. 4—84—0577
    Opinion filed March 29, 1985.

      Charles G. Reynard, of Bloomington, for appellant.

      Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and Gwendolyn Klingler, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

On March 1, 1982, a jury convicted defendant, John Krankel, of burglary. The court sentenced him to 14 years’ imprisonment consecutive to two concurrent five-year sentences which he was then serving. (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1.) This is defendant’s second appeal. On his first appeal he argued that (a) he was not proved guilty beyond a reasonable doubt; (b) he was denied effective assistance of counsel; (c) the trial court erred in failing to appoint counsel other than defendant’s appointed counsel to argue his pro se motion alleging ineffective assistance of counsel; and (d) the trial court erred in sentencing.

On April 11, 1983, this court reversed and remanded for a new trial. We held that defendant was denied effective assistance of counsel when his attorney failed to investigate defendant’s alibi and interview a witness. (People v. Krankel (1983), 113 Ill. App. 3d 992, 997, 447 N.E.2d 1379, 1383.) The dissent felt the record did not support an ineffective-assistance-of-eounsel finding. (113 Ill. App. 3d 992, 997-99, 447 N.E.2d 1379, 1383-84.) We did not address defendant’s other issues.

The supreme court granted the State’s petition for leave to appeal. (87 Ill. 2d R. 315(a).) On May 25, 1984, the supreme court vacated the appellate court’s decision and remanded with directions. It directed the trial court to appoint new counsel for defendant on his pro se allegations of ineffective assistance of counsel. The court stated:

“If, after the hearing, the judge finds that the defendant did not in fact receive effective assistance of counsel based upon counsel’s alleged failure to present a valid alibi defense, then he shall order a new trial. If, however, he determines that the defendant received the effective assistance of counsel, he shall deny a new trial and leave standing defendant’s conviction and sentence for burglary. If the circuit court denies defendant a new trial, defendant can still appeal to the appellate court based on his assertion of ineffective assistance of counsel or the other three issues which were raised in the appellate court and in this court but were not addressed.” 102 Ill. 2d 181, 189, 464 N.E.2d 1045,1049.

On April 4, 1984, defendant filed a petition for post-conviction relief. In the petition, filed by new counsel, defendant alleged his trial counsel was ineffective, his appellate counsel was ineffective, and his sentence was excessive in light of the reversal of a prior conviction, which had been considered in sentencing.

On May 1 and 8, 1984, a hearing was held on defendant’s petition for post-conviction relief. On June 28, 1984, a hearing was held in accordance with the supreme court’s mandate. The trial court denied defendant’s motion for a new trial based upon ineffective assistance of counsel and dismissed his petition for post-conviction relief.

Defendant appeals, raising the issues brought in his original appeal. He also argues the dismissal of his post-conviction petition was improper.

We affirm.

The facts relating to defendant’s original trial are succinctly set out in both the appellate and supreme court decisions. They are repeated here only as necessary for an understanding of the issues involved.

During the hearing on defendant’s petition for post-conviction relief and pursuant to the supreme court’s mandate, defendant stated that on July 30, 1980, from approximately 6:30 to 11:30 p.m., his van had been mired in the mud along the Illinois River near Pekin. The burglary occurred during this time. Defendant talked with a police officer who called a tow truck for him. A tow truck, driven by the owner of the company, pulled defendant’s vehicle from the mud.

While he was under arrest, defendant called and talked to the truck operator and his wife. However, defendant did not find out their names or whether there were any records of the incident. Defendant stated the owner remembered the incident and that he told the owner defense counsel would contact him soon. Defendant told his attorney of the incident seven months prior to trial. Defendant remembered giving defense counsel the phone number or name of the company.

Defendant further testified that he corresponded with his appellate counsel about raising the marital privilege issue. Appellate counsel responded that he felt the issue was meritless.

Michael O’Rourke, defendant’s trial counsel, testified that defendant told him of the alibi, asked him to contact the towing company, and gave him either the phone number or name of the company. O’Rourke talked to the owner’s wife, who told him no records were kept establishing the dates and times of towing. She remembered talking to defendant. O’Rourke was unable to contact her husband and could not remember how many times he called the towing company.

O’Rourke further testified that he contacted the police department to see if they had any record of the incident. The police informed him that any oral record would have been erased. O’Rourke did not subpoena anyone or individually talk to the police to determine if anyone remembered the incident.

On July 13, 1984, the trial court denied defendant’s motion for a new trial based upon the ineffective assistance of counsel and his petition for post-conviction relief.

Initially, defendant argues that he was not proved guilty beyond a reasonable doubt because the only evidence connecting him with the offense was the uncorroborated testimony of his ex-wife, and accomplice, Kelly Carr. Carr’s testimony was the key element of the State’s case. Defendant argues Carr’s statement lacked absolute conviction of truth because she initially denied knowing where the victim’s credit card came from, received deferred prosecution on a related forgery charge, and was in the midst of divorcing defendant, from which animosity toward him may be assumed. The State responds that these matters were placed before the jury and are questions of weight.

Uncorroborated accomplice testimony is a sufficient ground upon which the trier of fact may base a conviction. However, such testimony should be regarded with skepticism because the accomplice may have been promised leniency or harbor ill will toward the accused. The weaknesses of accomplice testimony are questions of the weight of the evidence, not its admissibility. (People v. Wilson (1977), 66 Ill. 2d 346, 349, 362 N.E.2d 291, 292.) Carr testified that the divorce was not the basis of her talking to the police. She also stated that entry into the deferred prosecution program designed for first offenders was not in exchange for her testimony. Even if this were not so, these matters would affect the weight, not the admissibility of her testimony. The credibility of accomplice testimony is a jury question. (People v. Sangster (1981), 95 Ill. App. 3d 357, 420 N.E.2d 181, rev’d on other grounds (1982), 91 Ill. 2d 260, 437 N.E.2d 625; People v. White (1984), 122 Ill. App. 3d 24, 460 N.E.2d 802.) The jury was aware of the factors affecting Carr’s credibility. The evidence is sufficient to sustain the conviction.

Defendant next argues as an independent appeal issue and in connection with his petition for post-conviction relief that his counsel’s failure to adequately investigate his alibi defense denied him effective assistance of counsel. The State responds that defendant received effective assistance. Trial counsel’s decisions were strategy matters.

In order to establish an ineffective-assistance-of-counsel claim, defendant must show that his counsel was actually incompetent in the performance of his trial duties and that absent his counsel’s errors, the trial’s result would probably have been different. (Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068; People v. Barnard (1984), 104 Ill. 2d 218, 236-38, 470 N.E.2d 1005, 1012-13.) The standard is the same for appointed and privately retained counsel. People v. Royse (1983), 99 Ill. 2d 163, 457 N.E.2d 1217.

Decisions on whether to call witnesses are usually matters of strategy. Errors in strategy do not constitute ineffective assistance of counsel. (Strickland v. Washington (1984), 466 U.S. 668, 695, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.) However, failure to interview ■witnesses may indicate actual incompetency, especially where their testimony may be exonerating. (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203; People v. Witherspoon (1973), 55 Ill. 2d 18, 302 N.E.2d 3; People v. Corder (1982), 103 Ill. App. 3d 434, 431 N.E.2d 701.) Failure to investigate a defense may also indicate actual incompetence. (People v. Howard (1979), 74 Ill. App. 3d 138, 392 N.E.2d 775.) However, conjecture may not serve as the basis of an ineffective-assistance-of-counsel claim. People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203; People v. Lewis (1981), 97 Ill. App. 3d 982, 423 N.E.2d 1157.

O’Rourke indicated that he investigated the defense but could not substantiate the date and time during which defendant’s vehicle was mired in the mud. The date and time were critical to defendant’s alibi. In addition, O’Rourke checked with the police in an effort to substantiate the alibi. Defendant did not present any witnesses or support his alibi claim.

In People v. Jackson (1985), 131 Ill. App. 3d 128, defendant was convicted of burglary. In a letter to the court, defendant asserted that his counsel was incompetent for failing to call an alibi witness. Counsel stated that he talked to the witness, a doctor with whom the defendant had an appointment on the day of the burglary. Neither the doctor nor his office staff could determine when defendant had been in the office. On appeal, defendant argued that based upon People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045, a different attorney should have been appointed to argue his claim. The court held that appointment of a different attorney was not necessary because the allegation was spurious. The witness could not establish that defendant had been at the doctor’s office during the burglary.

In People v. Young (1983), 115 Ill. App. 3d 455, 450 N.E.2d 947, defendant argued his trial counsel was incompetent for failing to investigate a potential alibi defense. Defendant stated he was in school when the offense occurred. Post-trial counsel submitted two affidavits which established that two teachers saw defendant at 8:35 a.m. and again at 9:35 a.m. However, the affidavits did not establish where defendant was during the interim, when the offense occurred.

The court stated that even if defendant could establish failure to investigate the defense, he had not shown prejudice. Any prejudice would be based upon speculation that someone saw him at the time of the offense. The court also noted that failure to present the defense, which was considered and rejected, was a matter of trial tactics. People v. Young (1983), 115 Ill. App. 3d 455, 467-68, 450 N.E.2d 947, 958.

In the instant case, O’Rourke investigated the defense but decided not to present it because he could not substantiate it. The time sequence was critical to the defense. O'Rourke also attempted to contact the witness. Under the circumstances, not presenting the defense was a tactical decision.

Defendant has not produced any viable evidence that a witness would have testified that his car was stuck in the riverbank near Pekin. Where an alibi is not verifiable, defendant has no valid claim of prejudice, and the trial court correctly denied post-conviction relief on this issue.

Defendant next argues that the trial court committed reversible error in admitting testimony about privileged marital communications. The State responds that description of a spouse’s actions is not privileged. Initially, we note that defendant did not raise this issue in his previous appeals. The supreme court specifically stated that on appeal after remand defendant could raise the issues he had raised in the appellate court and in that court which were not addressed. (People v. Krankel (1984), 102 Ill. 2d 181, 189, 464 N.E.2d 1045, 1049.) Defendant now argues for the first time that the admissibility of Carr’s testimony is an independent appeal issue. We find that it is not.

Generally, issues which could have been raised in the appellate court, but which were not, are waived. (People v. Barnard (1984), 104 Ill. 2d 218, 228, 470 N.E.2d 1005, 1008; People v. Fink (1982), 91 Ill. 2d 237, 241, 437 N.E.2d 623, 625.) Additionally, addressing the privilege question as an independent issue is contrary to the supreme court’s mandate. See People ex rel. Daley v. Schreier (1982), 92 Ill. 2d 271, 276-77, 442 N.E.2d 185, 188; People v. Knox (1971), 3 Ill. App. 3d 22, 23-24, 278 N.E.2d 252, 254.

However, we address, the merits of the issue because of its relation to defendant’s post-conviction petition allegation of ineffective assistance of appellate counsel. Defendant argues failure to raise this issue demonstrates incompetence. Appellate counsel need not brief every conceivable issue on appeal. It is not incompetence for counsel to refrain from raising issues which, in his judgment, are without merit, unless counsel’s appraisal of the merits is patently wrong. (People v. Barnard (1984), 104 Ill. 2d 218, 231, 470 N.E.2d 1005, 1009; People v. Frank (1971), 48 Ill. 2d 500, 505, 272 N.E.2d 25, 28.) Section 6 of Division XIII of the Criminal Code of 1874 states in part:

“In all criminal cases, husband and wife may testify for or against each other: provided, that neither may testify as to any communication or admission made by either of them to the other or as to any conversation between them during marriage.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 155-1.

In People v. Palumbo (1955), 5 Ill. 2d 409, 125 N.E.2d 518, the court construed the statute to mean that confidential communications are privileged. Intramarital conversations are presumed confidential unless the circumstances indicate otherwise. The presumption of confidentiality does not automatically extend to actions. (People v. Burton (1972), 6 Ill. App. 3d 879, 286 N.E.2d 792.) Confidentiality is destroyed if the communication takes place in the presence of third persons who are capable of understanding the communication. People v. Sanders (1983), 99 Ill. 2d 262, 457 N.E.2d 1241; People v. Torres (1974), 18 Ill. App. 3d 921, 310 N.E.2d 780.

Carr described defendant’s actions and related over objection a brief conversation during which defendant said he saw people in the victim’s back yard. She started to relate the substance of a conversation in the K mart parking lot. Defendant’s hearsay objection to this was sustained.

Defendant now argues that both his actions and his conversation were confidential communications. In People v. Simpson (1976), 39 Ill. App. 3d 661, 670, 350 N.E.2d 517, 522, rev’d on other grounds (1977), 68 Ill. 2d 276, 369 N.E.2d 1248, the court held that description of conduct which is not clearly a substitute for oral communications is not within the statutory proscription. Simpson’s wife, at trial, described Simpson’s actions at her trailer the morning after the murder of which he was convicted. See also People v. Rettig (1980), 88 Ill. App. 3d 888, 410 N.E.2d 1099.

Defendant relies upon People v. Krankel (1982), 105 Ill. App. 3d 988, 434 N.E.2d 1162, (Bureau County conviction), in which the appellate court reversed defendant’s conviction because Carr’s testimony was a blend of description and recounting privileged communications. However, the court noted:

“Implicit in the term ‘communication’ is speech. Certain acts may constitute a communication to the other spouse. Such acts might include a wave of a hand or a nod of the head. However, the mere description by one spouse of general, noncommunicative conduct is not protected by the marital privilege statute.” (105 Ill. App. 3d 988, 991, 434 N.E.2d 1162,1164.)

Defendant's actions in entering and leaving the victim’s home, then pulling the wallet out of hiding were not clear substitutes for speech. The testimony was properly admitted.

The presumption of privilege extends to defendant’s statement that people were in the back yard. However, the information does not appear harmful to the defendant. Additionally, such comments are much like comments on the weather, road conditions or health which may not be intended as confidential. Since under the circumstances the issue has little merit, appellate counsel was not incompetent in failing to argue it.

Defendant next raises various arguments in support of his contention that he was improperly sentenced. The trial court sentenced defendant to an extended-term sentence. The sentence was consecutive to two concurrent sentences the defendant was then serving for prior unrelated offenses. Defendant argues the court failed to make a statutory finding that the consecutive sentence was necessary to protect the public. Therefore, he was improperly sentenced. The trial court stated that the public was entitled to protection from defendant’s activities.

Section 5 — 8—4(b) of the Unified Code of Corrections does not require an explicit finding that the consecutive-term sentence is necessary to protect the public. (Ill Rev. Stat. 1981, ch. 38, par. 1005 — 8— 4(b).) The record must show the sentencing court felt the consecutive term was necessary to protect the public. (People v. Steppan (1985), 105 Ill. 2d 310, 322; People v. Pittman (1982), 93 Ill. 2d 169, 442 N.E.2d 836.) The record supports the consecutive sentence.

Defendant next argues as an independent appeal matter and in connection with his petition for post-conviction relief that the court’s reversal in Krankel (Bureau County conviction) requires a new sentencing hearing. The trial court considered the Bureau County conviction in initially sentencing defendant on the instant offense. The State argues defendant’s record supports the sentence excluding the Bureau County conviction.

This issue was not raised in defendant’s previous appeals. Therefore, absent plain error it is waived. (People v. Barnard (1984), 104 Ill. 2d 218, 470 N.E.2d 1005; People v. Fink (1982), 91 Ill. 2d 237, 437 N.E.2d 623.) Addressing it as an independent substantive matter also contravenes the supreme court’s mandate. However, we address the merits of defendant’s assertion because he argues in his petition for post-conviction relief that the sentencing court’s consideration of the Bureau County conviction requires a new sentencing hearing.

Defendant relies on People v. Coty (1982), 105 Ill. App. 3d 398, 434 N.E.2d 432, and People v. Reynolds (1982), 105 Ill. App. 3d 698, 434 N.E.2d 776. In Coty, the sentencing court considered an earlier conviction which was subsequently reversed. The State had confessed error on appeal of the earlier conviction. Although defendant had been indicted for robbery, he was convicted of theft, not an included offense. The appellate court in Coty held that defendant was entitled to a new sentencing hearing in light of the reversal, even though his sentence may otherwise have been warranted. People v. Coty (1982), 105 Ill. App. 3d 398, 400, 434 N.E .2d 432, 434.

In Reynolds, the court remanded for a new sentencing hearing when three prior convictions considered in sentencing were reversed. A review of the cases shows that one of the prior convictions was reversed on constitutional grounds. People v. Reynolds (1982), 105 Ill. App. 3d 698, 434 N.E.2d 776.

The cases in this area indicate that where the prior conviction is constitutionally infirm, remand for a new sentencing hearing is required. See People v. Merneigh (1981), 101 Ill. App. 3d 536, 428 N.E.2d 688 (defendant’s prior misdemeanor convictions were found constitutionally infirm); People v. Fischer (1981), 100 Ill. App. 3d 195, 426 N.E.2d 965 (prior conviction based upon unconstitutional statute); People v. Beyah (1979), 72 Ill. App. 3d 690, 391 N.E.2d 96 (prior conviction violated defendant’s speedy trial rights); People v. Marselle (1974), 20 Ill. App. 3d 1012, 314 N.E.2d 21 (prior conviction declared void in habeas corpus proceeding).

In People v. Miller (1975), 27 Ill. App. 3d 788, 792-93, 327 N.E.2d 253, 256, the court rejected defendants’ arguments that they were entitled to a new sentencing hearing. The court noted the prior convictions were not void, there was no indication that the judge specifically relied upon the reversed convictions, and the sentence was within statutory limits.

During the hearing on defendant’s petition for post-conviction relief, the trial court specifically reconsidered the sentence, excluding the Bureau County conviction. In the 10 years preceding the instant offense, defendant had four burglary convictions, one theft conviction, one attempted theft conviction, and two misdemeanor theft convictions. The trial court concluded the sentence was warranted.

In addition, the prior conviction was reversed because of a violation of the marital privilege statute. The conviction had not been reversed when the sentencing court considered it. It was not subsequently declared constitutionally infirm. Defendant is not entitled to a new sentencing hearing. (See People v. Merneigh (1981), 101 Ill. App. 3d 536, 428 N.E.2d 688.) The trial court correctly denied post-conviction relief on this basis. People v. Logan (1976), 39 Ill. App. 3d 656, 350 N.E.2d 40.

Defendant next argues that his sentence was disproportionate to the nature and seriousness of the offense, his sentence for prior similar offenses and Carr’s sentence. The State responds that the sentence was not an abuse of discretion, and Krankel was not similarly situated to Carr.

Defendant received an extended-term sentence based upon the fact that he had been convicted of prior felonies within the past 10 years. (Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 8—2, 1005 — 5— 3.2(b)(1).) The sentence was made consecutive to concurrent sentences defendant was then serving on two prior unrelated convictions. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(b).) Defendant now argues that his 19-year sentence is disproportionate to the nature of the offense considering burglary is not a crime of violence. He argues that those who commit violent offenses receive sentences of lesser duration.

Defendant’s total term of imprisonment is the result of three separate sentences imposed by different courts for distinct offenses. Defendant was eligible for an extended-term and consecutive sentencing. A sentencing court’s determination will not be modified on review absent an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Since the sentence imposed was within the statutory limits, the fact that defendant may be imprisoned longer for his multiple burglary convictions than a person might be imprisoned for a “violent” offense, does not indicate the sentencing court abused its discretion. All of the factors of section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 83, par. 1005 — 5—3.2) need not be present before an extended-term sentence may be imposed. People v. Hamilton (1980), 81 Ill. App. 3d 297, 401 N.E.2d 318.

Defendant urges that the sentence in the instant offense should be similar in length to prior sentences imposed for similar burglary offenses. He maintains the instant sentence is fundamentally unfair. Defendant cites no authority for this proposition, and we have found none. A sentencing court may properly consider prior convictions as an aggravating factor.

Defendant argues that his sentence is fundamentally unfair because it is disproportionate to the sentence imposed upon Carr. The State responds that the two were not similarly situated. We agree. Concepts of fundamental fairness require that similarly situated defendants receive similar sentences. (People v. Henne (1973), 10 Ill. App. 3d 179, 293 N.E.2d 172.) Carr and defendant were not similarly situated, nor were they equally responsible for the offense. Disparate sentences may be imposed when the defendants’ criminal records differ. People v. Thompson (1967), 36 Ill. 2d 478, 224 N.E.2d 264.

Defendant next argues that the trial court abused its discretion in sentencing him to an extended term since the instant offense occurred prior to conviction of his two latest offenses. There is little merit in this argument. First, defendant had multiple felony convictions within the statutory period. Second, the statute does not require commission of the second offense after conviction for the prior offense. People v. Hooker (1981), 96 Ill. App. 3d 202, 421 N.E.2d 308; People v. Hamilton (1980), 81 Ill. App. 3d 297, 401 N.E.2d 318.

Defendant argues that the trial court’s reliance upon prior convictions to sentence him to a maximum extended term and to make the sentence consecutive violates double jeopardy concepts and is an impermissible enhancement of his sentence. The State argues that since the extended and consecutive sentencing provisions are independent, the sentence imposed was proper.

Concepts of double jeopardy prohibit multiple punishment for the same offense. (Brown v. Ohio (1977), 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221.) Defendant has not shown that he is being subjected to multiple punishment for the same offense. The prior convictions were entirely distinct from the instant offense. They did not occur as part of the same course of conduct. No constitutional violation occurred.

Defendant relies upon People v. Hobbs (1981), 86 Ill. 2d 242, 427 N.E.2d 558, People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, and People v. Gresham (1982), 104 Ill. App. 3d 81, 432 N.E.2d 654, in support of his contention that statutorily his sentence was impermissibly enhanced.

These cases are inapposite. In Hobbs, the court reversed defendant’s extended-term sentence because a prior felony had been used to enhance the current offense to a felony and also used as the basis of an extended-term sentence under section 5 — 5—3.2(b) of the Unified Code of Corrections. (People v. Hobbs (1981), 86 Ill. 2d 242, 244-46, 427 N.E.2d 558, 559-60; Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2(b).) The Gresham court reversed under similar factual circumstances (People v. Gresham (1982), 104 Ill. App. 3d 81, 88-89, 432 N.E.2d 654, 659-60.) In Harón, the court stated the presence of a weapon could not be used to enhance the offense from the misdemeanor to a felony and serve as the basis of an armed violence charge. People v. Haron (1981), 85 Ill. 2d 261, 278, 422 N.E.2d 627, 634.

Defendant’s prior offenses were felonies. They were not used to raise his present offense to a felony. No element of the previous felonies was used as a basis of convicting defendant of the current offense. We find that no impermissible enhancement occurred.

Defendant argues that he should receive credit for time served in custody prior to sentencing on the instant offense. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—7.) This argument was not raised in the previous appeals. The record indicates that the sentence credit was denied because time served in the McLean County jail was applied to defendant’s Peoria County sentence. The sentence credit was properly denied.

Finally, defendant argues that the trial court erred in not appointing new counsel to argue his post-trial allegation of ineffective assistance of counsel. The State agrees, as did the supreme court when it decided this issue. (People v. Krankel (1984), 102 Ill. 2d 181, 189, 464 N.E.2d 1045, 1049.) A hearing with new counsel, present counsel, was held on June 28,1984.

Defendant now argues that the conflict of interest created when he alleged ineffective assistance tainted the entire post-trial proceeding which dealt with the post-trial motions and sentencing. Defendant had the opportunity to argue this issue on his first appeal both in this court and before the supreme court. He did not argue it and has waived the issue. (People v. Barnard (1984), 104 Ill. 2d 218, 470 N.E.2d 1005; People v. Fink (1982), 91 Ill. 2d 237, 437 N.E.2d 623.) Counsel argued and the trial court reconsidered the sentencing issue. (See People v. Merneigh (1981), 101 Ill. App. 3d 536, 428 N.E.2d 688.) Defendant is not entitled to a new sentencing hearing.

For the above reasons, we affirm the trial court.

Affirmed.

GREEN, P.J., and MILLS, J., concur.


author: JUSTICE HOPE

text:
    JEROME SWERDLOW et al., Plaintiffs-Appellees, v. PAUL MALLIN et al., Defendants-Appellants.
    Second District
    No. 2—84—0228
    Opinion filed March 26, 1985.

      Philip S. Wolin, of Wolin & Rosen, and Jeffrey Schulman, both of Chicago, for appellants.
    Stuart Smith, of Gordon & Glickson, of Chicago, for appellees.
   JUSTICE HOPE

delivered the opinion of the court:

Plaintiffs, Jerome and Roberta Swerdlow, brought this claim for damages for breach of the real estate contract for the sale of their home. Defendants, Paul and Gila Mallín, counterclaimed, and the parties filed cross-motions for summary judgment. The circuit court of Lake County determined that there was no genuine issue as to any material facts and entered judgment in favor of the plaintiffs and against the defendants in the amount of $73,750, under the earnest money provisions of the contract. Defendant’s motion to reconsider was denied.

On appeal, the defendants contend in their first issue that the trial court erred in granting summary judgment for plaintiffs because plaintiffs failed to comply with the requirement in the rider that the contract and rider be executed by the land trustee who held title. Thus, defendants urge that the contract was unenforceable.

Plaintiffs placed their home on the market in April or May of 1981. On September 14, 1981, defendants signed a contract to purchase for the sum of $737,500 and plaintiffs accepted. The following day the parties signed a rider to that contract. The rider required defendants to deposit an irrevocable negotiable letter of credit in the amount of $72,750, as earnest money, in addition to the $1,000 required by the initial contract. The defendants never provided a letter of credit, but did execute a promissory note in that amount. This note was signed 10 days after the rider and provided for 15% interest per annum. According to the plaintiffs’ deposition, the parties agreed that this note would be replaced by the defendants’ letter of credit. After the promissory note was signed, the parties continued to try to complete the transaction, but no progress was made. On November 18, 1981, plaintiffs advised defendants that they would hold the note until November 30, 1981, and if no letter of credit or cash was substituted by that time then the contract could be forfeited. The defendants were apparently unable to obtain a letter of credit or other financing, and they requested more time.

Plaintiffs filed suit on April 2, 1982. Count I of plaintiff’s complaint alleged that defendants failed to supply the letter of credit or redeem the $72,750 note by paying that amount as the earnest money deposit, and that plaintiffs were ready, willing and able to perform the contract, but the defendants had refused to honor the contract, and that the plaintiffs were damaged in the sum of $72,750. Count II alleged that the note became due on demand, and defendants had failed to redeem it. Judgment was sought in the amount of the note plus costs. The defendants filed a two-count counterclaim based on the same transaction which led to the plaintiffs’ complaint.

As indicated, the parties filed cross-motions for summary judgment. After arguments, the trial court found for plaintiffs and against defendants in the amount of $72,750. Defendants filed a timely notice of appeal. We affirm.

On appeal, the first issue raised by defendants is based on the fact that plaintiffs failed to have the land trustee execute the agreements as required by paragraph 9 of the rider, which was executed on September 15,1981, and provided:

“9. Seller agrees to have this Contract and Rider executed by the land trustee holding legal title to the premises within seven (7) days from the execution thereof by the other parties.”

Defendants contend that the contract was not enforceable without this execution, and that the trial court erred in finding that defendants had waived this condition of the contract.

Defendants contend that, because plaintiffs failed to obtain the signatures of all the sellers required under the offer, no contract was created. In support of this contention, they cite cases which hold that the signature of one or two or more co-owners is not sufficient to create an enforceable contract. (Dineff v. Wernecke (1963), 27 Ill. 2d 476, 190 N.E.2d 308; Madia v. Collins (1951), 408 Ill. 358, 97 N.E.2d 313; Hosty v. Kroupa (1969), 117 Ill. App. 2d 419, 254 N.E.2d 613.) Contrary to defendants’ assertion, the instant case does not involve one or more co-sellers. Instead, the contract was signed by the beneficiaries of the land trust rather than the trustee. Cases involving co-owners are inapposite. However, paragraph 9 of the contract specifically required the trustee's execution, and this never occurred. The trial court found that while beneficiaries may not deal with trust property as if no trust existed, they may enter into a contract to convey title to the trust property if the trust agreement vests in them the sole right to direct the trustee to convey title. The trust agreement which was part of the record below provided that plaintiffs are beneficiaries and they alone have power of direction. At first blush it appears that the trust agreement is extrinsic to the contract presented on review. However, because there has been no objection to the consideration of that agreement, it can be considered as evidence. Tolbird v. Howard (1969), 43 Ill. 2d 357, 362, 253 N.E.2d 444.

The trial court ruled that the plaintiffs had power of direction under the trust and were acting within their authority as beneficiaries when they entered into the contract. Thus, it held, the contract was valid and enforceable. In support of this conclusion, the trial court relied on First National Bank v. Oldenburg (1981), 101 Ill. App. 3d 283, 287, 427 N.E.2d 1312, which held that a beneficiary of a land trust can enter into a contract to convey title to trust property if the trust agreement vests in him the sole right to direct the trustee to convey title. In Oldenburg the trustee was listed as the seller. By contrast, in the case at bar the plaintiffs-beneficiaries were listed as the sellers. However, the depositions of the parties and the language of the rider reveal that the defendants knew the property was held in a land trust and that the plaintiffs were the beneficiaries. Because of this, the fact that plaintiffs were listed as sellers does not make Oldenburg less controlling. On the basis of Oldenburg and the authority cited therein (101 Ill. App. 3d 283, 290, 427 N.E.2d 1312), the trial court could properly find that a valid and enforceable contract was created by the parties.

Defendants next contend that the trial court erred in finding that defendants had waived the requirement that plaintiffs have the land trustee execute the contract and rider. The trial court found that the failure to comply with the seven-day time provision was not a material breach, because the provision could have been complied with once the defendants obtained the letter of credit.

However, even more important is the fact that defendants did not raise this as an issue until after they advised plaintiffs they were unable to get the letter of credit. Thus, because obtaining the letter of credit was a material condition of the contract, the plaintiffs were entitled to view defendants’ conduct as an anticipatory breach. (Stonecipher v. Pillatsch (1975), 30 Ill. App. 3d 140, 332 N.E.2d 151.) Once defendants advised plaintiffs of their financial plight, and did so apparently without mentioning the said paragraph 9, the plaintiffs would have no-reason to have the trustee execute the contracts. To further comply with the contract requirements would be a useless act, and the law does not require the doing of a useless act. Haas v. Cravatta (1979), 71 Ill. App. 3d 325, 389 N.E.2d 226.

This argument, together with the fact that defendants did not raise the issue of paragraph 9 compliance until after they found they could not get financing, supports the trial court’s determination that defendants waived strict compliance with paragraph 9, and that plaintiffs were entitled to assume that defendants were not requiring strict compliance with the contract. The parties to a contract can waive any provision in a contract and such waiver can be demonstrated by “conduct indicating that strict compliance with the provisions of a contract will not be required.” (Botti v. Avenue Bank & Trust Co. (1982), 103 Ill. App. 3d 1052, 1054, 432 N.E.2d 295.) Under the circumstances of the present case, where defendants requested extensions of time long after the time for the trustee signing had passed, there was ample evidence to support the trial court’s determination that defendants waived strict compliance with paragraph 9 of the rider.

The next contention raised by defendants concerns an alleged lack of mutuality of obligation under the contract. Paragraph 7 of the rider provided:

“7. Purchaser shall deposit with Seller an irrevocable, negotiable Letter of Credit in the amount of $72,750.00, representing the additional earnest money deposit required in Paragraph 2 of this Contract. The said Letter of Credit shall be issued by a bank satisfactory to Seller and shall be in the form approved by Seller’s attorney, in his sole discretion. In the event that the Letter of Credit is not acceptable to Seller or Seller’s attorney, Seller shall so notify Purchaser in writing within five (5) days from receipt thereof, and this Contract shall be null and void, and the earnest money deposit shall be returned to Purchaser.”

Defendants contend that this provision, which allows the plaintiffs to approve or disapprove in their “sole discretion,” shows a lack of mutuality of obligation sufficient to defeat enforcement of the contract.

Defendants rely on the case of Gardiakos v. Vanguard Communications, Inc. (1976), 38 Ill. App. 3d 937, 350 N.E.2d 210, where the contract allowed the buyer to withdraw on the sole condition that he do so within five days of the receipt of certain documents. The court found this language rendered the contract unenforceable. A similar result was reached in Stender v. National Boulevard Bank (1983), 114 Ill. App. 3d 1041, 449 N.E.2d 873, where a real estate contract gave the plaintiff the right to approve or disapprove of the documents relating to the mortgages on the property. If plaintiff disapproved the contract could be cancelled in his “sole discretion.” The appellate court affirmed the trial court’s finding that the contract was unenforceable due to a lack of mutuality. We deem these authorities to be distinguishable. Plaintiffs’ assertion that this clause was put in for the benefit of the defendants so they would not have to come up with cash is extrinsic to the unambiguous terms of the contract. However, the fact remains that defendants could always have paid the earnest money by tendering cash. By tendering cash, the contract would have been binding as to the plaintiffs in accordance with paragraph 2 of the original contract, which provided in substance as follows:

“2 - Initial earnest money $1,000 in the form of personal check dated 2/24/81 payable to Realty World Ayars. Upon acceptance of this offer, said check shall be properly endorsed by payee and deposited by Gilbert Rayner as broker. The earnest money shall be increased to 10% of purchase price within 10 days after acceptance hereof. Said initial earnest money shall be returned, and this offer shall be void if not accepted on or before 9/15/81.”

We note that defendants present this theory for the first time on appeal. They did not present this to the lower court, nor was it brought to the court’s attention in their motion for reconsideration. Also, to claim that the contract was unenforceable due to lack of mutuality constitutes an inconsistent position with the counterclaim that they filed in the lower court. The counterclaim was based on a position that the plaintiffs had breached the contract for which defendants sought damages. Such inconsistency is not permissible. (Monroe County Water Cooperative v. City of Waterloo (1982), 107 Ill. App. 3d 477, 480, 437 N.E.2d 1237; Commercial Discount Corp. v. Bayer (1978), 57 Ill. App. 3d 295, 298-99, 372 N.E.2d 926.) For these reasons, defendants’ contention of lack of mutuality must fail.

Lastly, defendants contend that the court erred in awarding plaintiffs $73,750 in damages. This amount was established by paragraph 2 of the original contract, which required $1,000 earnest money, and paragraph 7 of the rider, which required $72,750 in additional earnest money. The $72,750 was put up by the defendants in the form of a note bearing interest at 15% and was the basis of count II of the complaint.

Defendants contend that the trial court erred in lumping all the earnest money together, and applying paragraph 8 of the contract to the entire sum. Paragraph 8 required the broker would hold the earnest money and that, if the purchaser defaulted, the earnest money would be forfeited and paid to the seller. The defendants contend that their damages should have been limited to $1,000.

Paragraph 1 of the rider provides as follows:

“1. In the event of any conflict between the printed portion of the contract and this Rider, the terms of this Rider shall prevail.”

Paragraph 3 of the rider provides as follows:

“3. The Earnest Money is to be deposited in a federally insured interest-bearing account or instrument for the benefit of Purchaser. However, should this Contract be terminated by reason of acts, omissions or through other default of the Purchaser, then the interest shall be forfeited and paid to Seller.”

Defendants argue that paragraphs 3 and 7 of the rider as set forth herein change the agreement. They point out that the rider provided that in any conflict between the contract and rider, the terms of the rider shall prevail. However, it is not clear that there is a conflict here. Paragraph 3 of the rider provides that purchasers’ default will result in a forfeiture of the interest to seller. Paragraph 7 provides that if the letter of credit is not acceptable, the contract is void and “the earnest money deposit shall be returned to Purchaser.” Thus, under the terms of the rider only, purchaser would only stand to lose the interest on $72,750. However, the rider does not say what happens to the $72,750 if purchaser defaults for reasons other than an unacceptable letter of credit. Thus, reference to the original contract becomes important, and, as indicated, paragraph 8 required a forfeiture of earnest money if purchaser defaults.

The trial court merely applied the language of the original contract to the earnest money required to be posted by the terms of the rider. This does not create a conflict in the terms of the contract. Although the result seems harsh, it was required by the contract language.

Defendants also urge that the note was not given as a bearer instrument, but only as earnest money to be replaced by the letter of credit. Defendants do not provide any argument to support this assertion. It should be mentioned that the note does not on its face contain a due date. The lack of a time for payment makes the note a demand note. (Ill. Rev. Stat. 1983, ch. 26, par. 3 — 108; Theodosakis v. Austin Bank (1981), 93 Ill. App. 3d 634, 417 N.E.2d 806.) The trial court, in viewing the contract and rider as one agreement, properly applied the forfeiture provisions. Further, once defendants admitted their signatures on the notes and did not establish a defense, plaintiffs were entitled to recover on the note. (Ill. Rev. Stat. 1983, ch. 26, par. 3 — 307.) The judgment of the circuit court of Lake County granting the motion for summary judgment is affirmed.

Affirmed.

REINHARD and UNVERZAGT, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    HAMILTON BANCSHARES, INC., Plaintiff-Appellant, v. ERNEST E. LEROY et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0578
    Opinion filed March 29, 1985.

      George J. Lewis, of Lewis, Blickhan, Longlett & Timmerwilke, of Quincy, for appellant.
    Hubert G. Staff, of Scholz, Staff & Palmer, of Quincy, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff brought this action for specific performance of two stock purchase options. Under each agreement the option period was 80 days. Within the option periods and prior to their exercise by plaintiff, defendants gave notice of withdrawal of the options. Thereafter, plaintiff sought to exercise the options, and subsequently commenced this action. Defendants maintained they had the right to withdraw the option offers before exercise, and plaintiff maintained they had no such right. The trial court granted defendants’ motion for summary judgment, concluding that the consideration was insufficient to support the options, and thereafter denied plaintiff’s post-trial motion. Plaintiff appeals from the judgment of the circuit court of Adams County. We reverse.

The suit is based on two option contracts, one between plaintiff and the Leroys for 2,068 shares of bank stock; and the other between plaintiff and the Gordens, Laveta Morris (trustee), and Eleanor Schrader (trustee), for 2,080 shares of bank stock. The agreements were by similar documents entitled “stock purchase option,” each dated June 11, 1981, with 80-day option periods. Each option was purportedly granted “in consideration of the sum of One Dollar and other good and valuable consideration, in hand paid, the receipt whereof is acknowledged.” Following the defendants’ signatures, each option in-eluded the statement: “I Lloyd Edwards [plaintiff’s president], have this day paid to the optionor the sum of $5,000.00 earnest money, to be applied to the purchase price of the shares subject to this option in the event that the option is exercised and to be refunded to me in the event that this option is not exercised.”

By letters of July 17, 1981, signed for by plaintiff’s president on August 12, 1981, defendants sent notice withdrawing the options. On August 19, 1981, plaintiff wrote to defendants, rejecting the purported withdrawal of the options and exercising them.

On December 11, 1981, plaintiff commenced this action for specific performance. Plaintiff admitted that the $1 consideration referred to in each option was not paid to defendants, but represented that the $5,000 earnest money was paid on each option on June 11, 1981. The record contains copies of the canceled $5,000 checks.

On May 18, 1982, defendants filed a motion for judgment on the pleadings, raising as one issue the adequacy of the consideration supporting the options. After hearing on June 21, 1982, the motion was denied as to consideration, the court finding a factual issue as to whether “other good and valuable consideration” existed to support the agreements; another matter was taken under advisement. Written authorities were filed as was an affidavit on behalf of the plaintiff. On February 2, 1983, the trial court denied the motion for judgment on the pleadings.

On April 26, 1983, plaintiff, by its president, Lloyd Edwards, filed answers to interrogatories wherein consideration given for the options was stated as including “the payment by Lloyd Edwards of $5,000.00 earnest money on behalf of the optionee as expressly set forth in the last paragraph on each Stock Purchase Option.”

On July 29, 1983, defendants filed a motion for summary judgment stating that as a matter of law no consideration was given for the options, which were withdrawn prior to being exercised. On August 16, 1983, plaintiff filed the counteraffidavit of Edwards and documents referring in part to the payment of earnest money to defendants per the terms of the options. After hearing on the motion on September 21, 1983, plaintiff by written brief argued (1) the adequacy of consideration was shown by the transfer of earnest money, and (2) the defendants had the use and benefit of plaintiff’s $10,000 earnest money for a period during which plaintiff was denied its benefit or use. Defendants argued that the sum of $1 or other consideration, as stated in the option, was not in fact paid and, therefore, the document merely constituted an offer which could be withdrawn at any time prior to a tender of compliance. Defendants contended that since the $5,000 earnest money under each option was to be applied toward the purchase price if the option was exercised, but refunded if not exercised, it was of no “benefit” to them, and should be regarded as having been subject to a valid and enforceable trust rather than as consideration. On April 13, 1984, the court entered a written order granting summary judgment, reasoning that the earnest money was of no benefit to defendants as it had to be returned if the options were not exercised. On May 3, 1984, plaintiff filed a post-trial motion which was heard and denied on July 13,1984. This appeal followed.

Plaintiff maintains that the use of the earnest money for the period of the option constituted consideration sufficient to support the options. Defendants claim that the options were silent as to their alleged right to use the earnest money while in their custody, and that they were obligated to act as trustees of this money and could derive no benefit from it. When a person accepts possession of personal property with the express or implied understanding to hold it for certain specific purposes or specified persons, a valid and enforceable trust exists. (Walden v. Karr (1878), 88 Ill. 49, 51.) In re Estate of Wilkening (1982), 109 Ill. App. 3d 934, 940-41, 441 N.E.2d 158, 163, stated the requirements of a valid express trust as (1) intent of the parties to create a trust as shown by a writing or by circumstances, (2) a definite subject matter of trust property, (3) ascertainable beneficiaries, (4) a trustee, (5) specifications of a trust purpose and how the trust is to be performed, and (6) delivery of the trust property to the trustee. According to defendants, these requirements were met since they, as trustees, received delivery of a definite trust property, i.e., the $10,000 in earnest money, to be held by them until such time as the options were exercised or revoked, and thereupon, to be distributed by them to the plaintiff if the options terminated or applied to the purchase price if the options were exercised.

The trial court’s order did not refer to defendants’ trust theory, but we reject the theory. The record does not support a finding of intent of the parties to create a trust. Defendants might have a stronger argument if the plaintiff’s checks for the earnest money had been payable to escrow accounts, but the checks were paid directly to the defendants named under each option. Moreover, the “ascertainable beneficiary” is dependent upon whether the option was exercised. The specifications of the trust purpose and how the trust is to be performed are not apparent from the options. While in equity a constructive trust may be imposed to redress unjust enrichment where there is either actual fraud or implied fraud resulting from a fiduciary relationship (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 328, 371 N.E.2d 634, 638), defendants do not argue that fraud should be imputed to their conduct.

We therefore proceed to the merits of plaintiffs argument. Generally, to justify specific performance a contract must be clear, certain, unambiguous, and free from doubt. (Young v. Kowske (1948), 402 Ill. 114, 83 N.E.2d 500.) A contract, by ancient definition, is an agreement between competent parties, upon a consideration sufficient in law, to do or not to do a particular thing. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634.) The validity of consideration for an instrument must be evaluated as it relates to the entire record and not as perceived in a vacuum of either terms or definitions. The burden of proving the validity of the affirmative defense of want of consideration is clearly upon the party asserting it. Codo v. Union National Bank & Trust Co. (1977), 54 Ill. App. 3d 810, 812, 370 N.E.2d 140, 142.

The general principles applicable to option contracts were reviewed in Hermes v. Wm. F. Meyer Co. (1978), 65 Ill. App. 3d 745, 749, 382 N.E.2d 841, 844-45:

“The general principles applicable to option contracts have been long established. An option contract has two elements, an offer to do something, or to forbear, which does not become a contract until accepted; and an agreement to leave the offer open for a specified time (Bonde v. Weber, 6 Ill. 2d 365, 374[, 128 N.E.2d 883] (1955)), or for a reasonable time (Bates v. Woods, 225 Ill. 126, 130-31[, 80 N.E. 84] (1906)). An option contract must be supported by sufficient consideration; and if not, it is merely an offer which may be withdrawn at any time prior to a tender of compliance. (Foley v. Hedenberg, 208 Ill. App. 163, 169 (1917), affd, 285 Ill. 210[, 120 N.E. 625] (1918).) If a consideration of ‘one dollar’ or some other consideration is stated but which has, in fact, not been paid, the document is merely an offer which may be withdrawn at any time prior to a tender of compliance. The document will amount only to a continuing offer which may be withdrawn by the offeror at any time before acceptance. (Threlkeld v. Inglett, 289 Ill. 90, 94-95[, 124 N.E. 368] (1919).) The consideration to support an option consists of ‘some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other’ (Lipkin v. Koren, 392 Ill. 400, 406[, 64 N.E.2d 890, 893] (1946)); or otherwise stated, ‘Any act or promise which is of benefit to one party or disadvantage to the other ***.’ Steinberg v. Chicago Medical School, 69 Ill. 2d 320, 330[, 13 Ill. Dec. 699, 704, 371 N.E.2d 634, 639] (1977).”

(See also Riddle v. La Salle National Bank (1962), 34 Ill. App. 2d 116, 180 N.E.2d 719; Miller v. McDonough (1957), 13 Ill. App. 2d 290, 141 N.E.2d 749; Aetna Plywood & Veneer Co. v. Robineau (1950), 340 Ill. App. 418, 92 N.E.2d 206.) In Steinberg v. Chicago Medical School (1976), 41 Ill. App. 3d 804, 807, 354 N.E.2d 586, 589, affd in part, rev’d in part (1977), 69 Ill. 2d 320, 371 N.E.2d 634, the court stated: “Money is a valuable consideration and its transfer or payment or promises to pay it or the benefit from the right to its use, will support a contract.”

Consideration adequate to support an option is discussed at 1 Corbin, Contracts sec. 127, at 550-51 (1950):

“A very small consideration is sufficient to support the promise of an option-giver, for a different reason. Suppose that A pays 25 cents in return for B’s promise to sell and convey Blackacre for the price of $10,000 at any time within 30 days. The sum of 25 cents is not ‘inadequate’ as an exchange for B’s promise, although it would be exceedingly inadequate as an exchange for Blackacre. But it is not being exchanged for Black-acre, or even for a promise to convey Blackacre; it is being exchanged for a promise to exchange Blackacre for $10,000. B has bought a power to compel the exchange of Blackacre for $10,000, a power continuing 30 days; for this power he has paid 25 cents, a small sum. We can not say that it is an ‘inadequate’ price to pay for such a power until we know the ‘market’ for it — the opinions of other dealers as to its value in money. There may or may not be such a ‘market’. It is true, however, under our existing law, that B’s promise to A is enforceable even though it is proved that other dealers in land would gladly have paid $1,000 for the ‘option’ that A got for 25 cents. Nor is B’s promise made unenforceable by the fact that the other dealers would gladly have paid $50,000 for Blackacre.”

(See Wickstrom v. Vern E. Alden Co. (1968), 99 Ill. App. 2d 254, 240 N.E.2d 401.) 1A Corbin, Contracts sec. 263, at 501 (1950) states:

“If, however, the consideration is nominal in fact as well as in amount — that is, it is merely named and is in fact neither given nor promised, then there is no consideration at all, and the option giver has power of revocation as in the case of other revocable offers.”

(See Corbett v. Cronkhite (1909), 239 Ill. 9, 17, 87 N.E. 874, 877.) The legal concepts of “detriment” and “benefit” are discussed at 1 Willis-ton, Contracts sec. 102A at 380-82 (3d ed. 1957):

“Both benefit and detriment have a technical meaning. Neither the benefit to the promisor nor the detriment to the promisee need be actual. ‘It would be a detriment to the promisee, in a legal sense, if he, at the request of the promisor and upon the strength of that promise, had performed any act which occasioned him the slightest trouble or inconvenience, and which he was not obliged to perform.’ Thus abstaining from smoking and drinking, though in fact in the particular case a benefit to the promisee’s health, finances, and morals and of no benefit to the promisor, is a legal detriment and if requested as such is sufficient consideration for a promise. So obtaining signatures to a petition is a sufficient consideration though the petition is so defective as to be useless and the signatures are, therefore, of no benefit to the promisor. Detriment, therefore, as used in testing the sufficiency of consideration means legal detriment as distinguished from detriment in fact. It means giving up something which immediately prior thereto the promisee was privileged to retain, or doing or refraining from doing something which he was then privileged not to do, or not to refrain from doing.
Benefit correspondingly must mean the receiving as the exchange for his promise of some performance or forbearance which the promisor was not previously entitled to receive. That the promisor desired it for his own advantage and had no previous right to it is enough to show that it was beneficial.”

This view of “benefit” and “detriment” as constituting valuable consideration has long been accepted in Illinois. It is not essential that it import a certain gain or loss to either party, but is sufficient if the party in whose favor the contract is made parts with a right which he might otherwise exert. (Miller Ice Co. v. Crim (1939), 299 Ill. App. 615, 20 N.E.2d 347.) Common sense dictates that plaintiff’s parting with $5,000 earnest money under each option contract for more than 30 days constituted a legal detriment to plaintiff.

Summary judgment should be granted only when the pleadings, depositions, and admissions, together with any affidavits, show there is no genuine issue as to a material fact, and the movant is entitled to judgment as a matter of law. (Clifford-Jacobs Forging Co. v. Capital Engineering & Manufacturing Co. (1982), 107 Ill. App. 3d 29, 33, 437 N.E.2d 22, 25.) Therefore, the circuit court erred in granting summary judgment. Accordingly, the judgment must be reversed, and the cause remanded for further proceedings consistent with this opinion. In view of our disposition of this issue, we estoppel argument posed by the appellant. need not address the

Reversed and remanded.

GREEN, RJ., and MILLS, J., concur.