author: JUSTICE SULLIVAN

text:
    ANNE SHELDON, Ex’r of the Last Will of Gilbert R. Sheldon, Deceased, Plaintiff-Appellee and Cross-Appellant, v. COLONIAL CARBON COMPANY, Defendant-Appellant and Cross-Appellee.
    First District (5th Division)
    No. 82—994
    Opinion filed February 10, 1983.
    Rehearing denied September 1, 1983.

      Edwin H. Conger, of Tenney & Bentley, of Chicago, for appellant Colonial Carbon Company.
    David Lincoln Ader, of Ader & Ader, of Chicago, for appellee Anne Sheldon.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from a final order granting reformation of an employment contract to state that plaintiff was entitled to payment of $40,000 upon the death of Gilbert R. Sheldon (Sheldon) as well as upon his retirement. Defendant contends that the order is against the manifest weight of the evidence. Plaintiff cross-appeals from the denial of prejudgment interest.

On December 16, 1970, Sheldon entered into an employment contract with defendant which provided in relevant part:

“3. The term of such employment shall be for a term commencing January 1, 1970 and ending on Sheldon’s Normal Retirement Date under the Colonial Pension Trust Agreement of July 1, 1966, as amended, provided, however, that Sheldon may at any time retire from the employment of Colonial upon 90 days’ notice in writing to Colonial.
* * *
5. When Sheldon’s employment by Colonial terminates, either at the normal retirement date as specified by the Pension Plan or if he voluntarily elects early retirement, Colonial agrees to pay to Sheldon as deferred compensation hereunder the sum of $8,000 per year for five years, payable in equal semi-monthly installments so long as he shall be living, and in the event of his death the balance, if any, shall be paid to his estate in one lump sum. During such five year period, Sheldon shall render to Colonial such advisory and consulting services as its Board of Directors may reasonably request, but such services shall be performed in such places in the United States as he may designate and shall not exceed twenty-four hours in any month. Colonial will pay all travel and other expenses, if any, relating to these consulting services.”

Sheldon suffered a severe heart attack on December 26, 1970, and died on January 13, 1971, before reaching the specified retirement age and without giving notice of an election to take early retirement.

Plaintiff filed this action, alleging that $40,000 was owed Sheldon’s estate as deferred compensation. A hearing was held at which Earl Zitzler, through an evidence deposition, stated that he was defendant’s president until 1971, then served as its vice-president until his retirement in 1976; that he, Sheldon, and Howard Collins, minority shareholders, brought suit on behalf of defendant against its controlling shareholder in 1970, alleging that certain of his management practices were harmful to the corporation and resulted in financial injury to them; that the parties to that action reached a settlement agreement in New York on December 16, 1970; that as a part of that settlement each of the minority shareholders, including Sheldon, was to receive compensation for five years after retirement; and that the settlement agreement was not considered as payment for anything in the past but was to form the basis of a new understanding on how the company was to be managed in the future. Zitzler also stated that “[a]t no time during these negotiations was it indicated by anyone participating in the negotiations that the employment agreements then agreed upon *** would provide for the payment of deferred compensation in the event of the employee’s death prior to retirement.”

Zeamore Ader, called as an adverse witness by defendant, testified that he was attorney for the minority shareholders in the action against defendant’s controlling shareholder; that during that time various settlement proposals were made, none of which discussed the disposition of deferred compensation should death occur before retirement; that the final negotiations, which he did not attend, were held in New York; and that he probably had an opportunity to examine the agreements before the releases were exchanged.

Ader testified in rebuttal that Zitzler indicated it was his expectation that, should he die before completion of the notice requirement, his wife or estate would be entitled to the money.

The trial court found that the deferred compensation agreement, the settlement agreement, and the release of Sheldon’s claims were all part of one transaction; that the agreement was prepared by defendant’s attorneys and signed by Sheldon without benefit of counsel; that no mention was made during negotiations or signing as to what would happen to the deferred compensation in the event of death before retirement; that Sheldon died before reaching retirement age and before giving notice of voluntary retirement; and that the parties intended that Sheldon should unconditionally receive $40,000 deferred payment. The deferred compensation agreement was reformed to read that “Sheldon’s estate is entitled to $40,000 in the event of death before notice of retirement,” and this appeal followed.

Opinion

Defendant contends that the order of reformation is against the manifest weight of the evidence. It argues that the court made no finding of mutual mistake or mistake on plaintiff’s part coupled with fraud on its part, and that the evidence would not support such a finding. Furthermore, defendant maintains, the order is contrary to the trial court's express finding that during negotiations of the contract, disposition of the deferred compensation in the event of death before retirement was never mentioned.

There is a presumption that a written instrument conforms to the intention of the parties thereto. (La Salle National Bank v. American Insurance Co. (1973), 14 Ill. App. 3d 1027, 303 N.E.2d 770.) Therefore, in an action for reformation, plaintiff has the burden of proving by very strong, clear and convincing evidence (Parrish v. City of Carbondale (1978), 61 Ill. App. 3d 500, 378 N.E.2d 243) that there has been a meeting of the minds (Harden v. Desideri (1974), 20 Ill. App. 3d 590, 315 N.E.2d 235) resulting in an actual agreement between the parties (Phillips v. Salk, Ward & Salk, Inc. (1974), 20 Ill. App. 3d 359, 314 N.E.2d 262); but, at the time the agreement was reduced to writing and executed (819 South LaSalle Corp. v. Lopin (1974), 19 Ill. App. 3d 285, 311 N.E.2d 288), some agreed-upon provision was omitted or one not agreed upon was inserted (Friedman v. Development Management Group, Inc. (1980), 82 Ill. App. 3d 949, 403 N.E.2d 610) either through mutual mistake or through mistake by one party and fraud by the other (Texas Eastern Transmission Corp. v. McCrate (1979), 76 Ill. App. 3d 828, 395 N.E.2d 624). The question whether plaintiff has presented sufficient evidence to meet this higher burden of proof and overcome the presumption that the instrument as written expresses the parties’ true intention is primarily a question of fact (Texas Eastern Transmission Corp. v. McCrate), and we will not disturb the trial court’s decision unless it is against the manifest weight of the evidence (Parrish v. City of Carbondale).

Initially, we note that the trial court made no express finding that a mutual mistake occurred. However, that omission is immaterial, since, in the absence thereof, all reasonable presumptions will be extended in favor of the order under review. (Stony Island Church of Christ v. Stephens (1977), 54 Ill. App. 3d 662, 369 N.E.2d 1313.) Here, it is reasonable to presume that the court implicitly found that an agreed provision was omitted, either through a mutual mistake or mistake coupled with fraud, since one of them is a necessary element in an action for reformation. Compare Weigel v. O’Connor (1978), 57 Ill. App. 3d 1017, 373 N.E.2d 421 (a finding of the existence of a necessary element of the cause of action was implicit in the court’s judgment order).

Defendant further contends, however, that this implicit finding has no support in the evidence, particularly in the light of the trial court’s express finding that the possibility of death before retirement was not even mentioned in the parties’ negotiations. The uncontroverted testimony at trial was that the parties intended to provide for compensation after retirement, and none of the proposals made during the lengthy negotiation of their agreement raised the possibility of death before retirement; and that the parties simply had not even though about this eventuality. While Zitzler indicated that he expected the compensation to be paid whether or not he gave the required notice, he did not explain the basis for this expectation. Furthermore, his expectations, while indicative of what one party to the agreement thought, cannot be ascribed to the corporation. It is not only the intention of Sheldon or those similarly situated in negotiating the contract which must be proved in order to support reformation thereof, but a common intention held by Sheldon and defendant alike. Phillips v. Salk, Ward & Salk, Inc. (1974), 20 Ill. App. 3d 359, 314 N.E.2d 262.

Plaintiff urges that defendant’s intention can be ascertained from the circumstances surrounding the agreements and the terms of the writing itself. Initially, she argues that the agreement was entered into to adjust past differences, and the $40,000 in deferred compensation was part of the consideration given to “right old wrongs,” a contention directly contradicted by Zitzler. However, even assuming plaintiff’s interpretation is correct, it does not justify the further assumption that, because this was part of an agreement in settlement of litigation, the deferred compensation portion was therefore an absolute obligation, particularly when the deferred compensation was not the sole consideration for Sheldon’s release of his claims against the corporation. Sheldon also received an assurance of continued employment until he retired and an agreement which unconditionally obligated defendant to purchase his stock at 110% of its book value; defendant agreed to pay all of Sheldon’s costs of bringing suit, including attorney fees; and the controlling shareholder agreed to cease the practices complained of in the minority shareholders’ suit. Thus, it cannot be said that refusal to recognize the payment of deferred compensation as an absolute obligation deprives Sheldon of the benefit of his bargain.

Plaintiff’s argument that the terms of the writing evidence an intention that the $40,000 was unconditionally due and payable on Sheldon’s death is similarly unpersuasive. The fact that the contract establishes no minimum period of employment before retirement, which plaintiff relies on in arguing that the parties intended an unconditional obligation, is equivocal at best. The deferred compensation provision could as easily have been inserted with the intention of encouraging the early retirement of an employee who had engaged in extensive litigation against the corporation. Since there are plausible alternative explanations for establishing no minimum period of employment, the mere existence of this provision does not in itself represent the clear and convincing evidence necessary to support an action for reformation.

Plaintiff further contends that the evidence presented would support a finding of mistake on Sheldon’s part coupled with fraud by defendant. In support thereof, she argues that defendant isolated Sheldon from his attorney, causing him to enter into negotiations without the benefit of representation; while defendant’s attorney not only negotiated on its behalf, but drafted the final agreement. Defendant asserts that, contrary to plaintiff’s argument, there was no inequitable conduct on its part, maintaining that Sheldon, himself an attorney, was represented by counsel throughout the lengthy preliminary negotiations and voluntarily appeared without counsel for the final negotiations.

Even if we accept defendant’s interpretation of the facts, they are insufficient to prove fraud, which is generally defined as “anything intended to deceive, including all acts, omissions and concealments involving a breach of legal or equitable duty, trust or confidence resulting in damage to another.” (Gary-Wheaton Bank v. Burt (1982), 104 Ill. App. 3d 767, 773, 433 N.E .2d 315, 322.) In actions for reformation based on the existence of a unilateral mistake coupled with fraud, we have looked to whether the parties have reached a mutual agreement; but the defendant, knowing that the instrument finally prepared does not accurately reflect that agreement, has concealed the defect from plaintiff at the time of execution. (Harmony Way Bridge Co. v. Leathers (1933), 353 Ill. 378, 187 N.E. 432; 319 South LaSalle Corp. v. Lopin (1974), 19 Ill. App. 3d 285, 311 N.E .2d 288.) Here, as we have previously noted, there is no evidence that the parties reached a mutual agreement that the deferred compensation would be paid in the event of Sheldon’s death before retirement, nor is there evidence that defendant concealed anything from Sheldon when the agreement was executed. Therefore, a finding that a unilateral mistake coupled with fraud occurred is against the manifest weight of the evidence.

Finally, plaintiff contends that, even if we find that the order granting reformation is contrary to the manifest weight of the evidence, we may still affirm. She posits that the settlement agreement created an unconditional obligation to pay, and the collateral condition that Sheldon give notice of his election to take early retirement was discharged by impossibility of performance. Plaintiff admits that this argument was not before the trial court.

We may affirm the order of the trial court on the basis of any legal grounds which have factual support in the record (Monarski v. Greb (1950), 407 Ill. 281, 95 N.E.2d 433), even where such grounds were not raised before the trial court (Ogden Group, Inc. v. Spivak (1981), 92 Ill. App. 3d 932, 416 N.E.2d 393), but we may not entertain theories of recovery not pursued in the trial court “if proof might have been offered at trial to refute or overcome such a theory had it been presented” (Protestant Hospital Builders Club v. Goedde (1981), 98 Ill. App. 3d 1028, 1032, 424 N.E.2d 1302, 1306).

In the instant case, plaintiff’s alternate contention requires a finding that the agreement created an unconditional liability on defendant’s part. However, we have determined that the facts do not support this contention, for plaintiff failed to establish that the parties intended to create an absolute obligation. Furthermore, defendant has not had the opportunity to present evidence that, contrary to plaintiff’s assertion, the requirement that Sheldon retire was an essential condition and that his failure to so elect was not a mere “de minimus deviation from contract terms.” Therefore, we may not affirm on the alternative grounds advanced by plaintiff.

In the light of our disposition of defendant’s appeal, we need not reach plaintiff’s cross-appeal from the denial of prejudgment interest.

For the foregoing reasons, the order of the trial court granting reformation is reversed.

Reversed.

LORENZ and MEJDA, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE DOWNING

license: Public Domain

text:
    AVONDALE LIQUOR STORE, INC., et al., Plaintiffs-Appellants, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    First District (2nd Division)
    Nos. 81—3031 through 81—3033, 81—3161, 81—3164 cons.
    Rule 23 order entered May 31, 1983.
    Opinion filed and rehearing denied July 19, 1983.
    Howard E. Gilbert and Michael D. Richman, both of Gilbert, Shapiro & Richman, and Bernard Kleinman, Ltd., both of Chicago, for appellant Avon- ■ dale Liquor Store, Inc.

      Morton Siegel and Michael A. Moses, both of Siegel, Denberg, Vanasco, Shukvosky, Moses & Schoenstadt, of Chicago, for other appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Paul J. Bargiel, of Doss, Puchalski, Keenan & Bargiel, Ltd., Special Assistant Attorney General, of counsel), for appellee.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

This is a consolidated appeal in which plaintiffs, Southtown Beverage, Inc., Northwest Beverage, Inc., d/b/a Kane Beverage Mart, North Suburban Beverage, Inc., and Avondale Liquor Store, Inc., challenge the propriety of the trial court’s order denying their petitions for a lien on their properties and dismissing their complaints for judicial review of final tax assessments issued by defendant, Department of Revenue. The trial court denied plaintiffs’ petitions and dismissed their complaints pursuant to section 12 of the Retailers’ Occupation Tax Act (Act) (Ill. Rev. Stat. 1981, ch. 120, par. 451). The dismissal was based solely on plaintiffs’ failure to demonstrate that sufficient assets existed which, in the trial court’s opinion, would allow a lien to be imposed within the statutory time period in lieu of plaintiffs’ posting bond pending review of their tax assessments.

Plaintiffs appeal the trial court’s denial of their petitions to have a lien imposed as security in lieu of a bond and assert that: (1) section 12 of the Act is an unconstitutional infringement upon the supreme court’s rule-making authority for regulating appeals; (2) the 20-day rule of section 12 of the Act is satisfied by filing a petition to impose a lien in lieu of bond within 20 days of filing a complaint for administrative review; and (3) the trial court abused its discretion by denying plaintiffs’ petitions to impose a lien in lieu of bond.

The agreed facts show that defendant issued final tax assessments for plaintiffs’ tax delinquencies pursuant to the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1981, ch. 120, par. 440 et seq.). In order to obtain administrative review of their assessments, each plaintiff involved here followed the procedures in accordance with section 12 of the Act which in pertinent part provides:

“Any suit under the ‘Administrative Review Act’ to review a final assessment or revised final assessment issued by the Department under this Act shall be dismissed on motion of the Department or by the court on its own motion, unless the person filing such suit files, with the court, within 20 days after the filing of the complaint and the issuance of the summons in the suit, a bond with good and sufficient surety or sureties residing in this State or licensed to do business in this State or unless the court, in lieu of said bond, shall enter an order imposing a lien upon the plaintiff’s property as hereinafter provided. When dismissing the complaint, the court shall enter judgment against the taxpayer and in favor of the Department in the amount of the final assessment or revised final assessment, together with any interest which may have accrued since the Department issued the final assessment or revised final assessment, and for costs, upon which judgment execution may issue as in other cases.” Ill. Rev. Stat. 1981, ch. 120, par. 451.

The plaintiffs’ petitions for lien in lieu of bond concluded that a bond was unavailable to each of them. The petitions were filed within 20 days of filing the complaint for administrative review. Hearings on plaintiffs’ petitions were delayed pending the outcome of the supreme court’s decision in Glasco Electric Co. v. Department of Revenue (1981), 86 Ill. 2d 346, 427 N.E.2d 90, which involved questions of the proper scope of section 12 of the Act and the 20-day requirement. Following the Glaseo decision, these cases were consolidated in the trial court for a hearing on November 24 and 25, 1981. At the hearing, each defendant presented evidence of its financial status in an effort to convince the trial court to impose a lien in lieu of a bond.

Following the hearing and argument, the trial court found that plaintiffs failed to establish, within the 20-day term required by the Act, that sufficient assets existed which would warrant the imposition of a lien on plaintiffs’ properties in lieu of a bond. The trial court denied plaintiffs’ petitions to impose a lien and dismissed their complaints for administrative review of the final assessments. Judgment was entered on December 4, 1981, against each plaintiff, except Avon-dale Liquor, in an amount equal to the final assessments, plus interest and costs. Plaintiffs filed a notice of appeal of the November 25 order denying their petitions to impose a lien and dismissing their complaints for administrative review.

I

Initially, plaintiffs contend that filing the petition for lien in lieu of bond rather than having the trial court actually impose the lien within the 20-day period required by section 12 is sufficient. Plaintiffs claim that to conclude otherwise would impose an unreasonable burden on them in such a short time frame, amounting to a denial of due process. We do not agree.

The trial court here correctly interpreted Glasco Electric Co. v. Department of Revenue (1981), 86 Ill. 2d 346, 427 N.E.2d 90, as requiring plaintiffs to file for and demonstrate that the imposition of a lien is warranted within 20 days of plaintiffs’ complaint for administrative review. The supreme court in Glaseo held that section 12 of the Act requiring the bond to be filed within 20 days from the filing of a complaint for administrative review was mandatory but not jurisdictional. (86 Ill. 2d 346, 351.) The court in Glaseo explained that the purpose of the 20-day limit was to protect the Department of Revenue’s interest against a taxpayer’s dissipating or otherwise disposing of assets while the review of its tax assessment before the circuit court is pending. 86 Ill. 2d 346, 351.

The court in Glasco was not faced with the same situation presented here for review. Defendant here contends that a literal interpretation of section 12 should be employed, affirming the trial court’s impression that plaintiffs are bound to show that their financial status warrants the imposition of a lien within 20 days of their filing the complaint for administrative review.

In support of their contention that a lien need not actually be imposed, plaintiffs rely upon the language of this court in Bee Jay’s Truck Stop, Inc. v. Department of Revenue (1977), 52 Ill. App. 3d 90, 95, 367 N.E.2d 173, cert. denied (1978), 435 U.S. 970, 56 L. Ed. 2d 61, 98 S. Ct. 1610, which states that plaintiff need only have posted bond or petitioned the court for the imposition of a lien within 20 days. Plaintiff in Bee Jay’s had petitioned the court to impress a lien in lieu of a bond several months after filing suit for administrative review of its tax assessment. The trial court dismissed plaintiff’s complaint because plaintiff failed to post a bond or to petition the court for the imposition of a lien in lieu of bond within 20 days of filing for administrative review. Upon review, this court affirmed the trial court’s decision, explaining that an examination of the legislative intent was necessary to determine if the 20-day limit applied to the actual imposition of a lien. It was concluded by this court that “the legislature clearly intended that a taxpayer should provide either a bond or a lien as security for his tax obligation; and that such security should be provided within 20 days of filing suit for administrative review.” Bee Jay’s Truck Stop, Inc. v. Department of Revenue (1977), 52 Ill. App. 3d 90, 94.

Although there is a rule of statutory construction that courts will liberally construe a right to appeal so as to permit a case to be considered on its merits (City National Bank & Trust Co. v. Property Tax Appeal Board (1982), 108 Ill. App. 3d 979, 982, 439 N.E.2d 1301), the requirements of section 12 are mandatory (Glasco Electric Co. v. Department of Revenue (1981), 86 Ill. 2d 346, 351) and necessary to protect the interests of defendant from subsequent acts of delinquent taxpayers.

II

Next, all plaintiffs contend that the trial court abused its discretion by denying their petitions to impose a lien. We cannot agree. The record shows that financial statements were presented to the trial court by each plaintiff (some taxpayers did not present any evidence of financial conditions) in an effort to persuade the trial court to impress a lien. In those cases in which the plaintiffs failed to present evidence of assets sufficient to protect the interests of the defendant, a lien was not imposed. Defendant objected to the imposition of a lien on the property of each of the plaintiffs, arguing that the evidence in the record showed that the liabilities of each plaintiff exceeded its assets.

Our review of the record shows that the trial court went to great lengths to determine the financial condition of each plaintiff. With respect to Avondale Liquor, the record shows that the trial court considered the financial statement submitted by Avondale Liquor at the hearing. This information was accompanied by a letter from the C.P.A. who had compiled the information which read, in part, as follows:

“A compilation is limited to presenting in the form of financial statements, information that is the representation of management. We have not audited or reviewed the accompanying financial statements and, accordingly, do not express an opinion or any other form of assurance on them.”

The documentation submitted by Avondale Liquor did not reflect the existence of prior tax liens which were discussed at the hearing of this matter. An employee of the Department of Revenue was called to testify and stated that prior tax liens existing against Avondale Liq-nor totaled approximately $33,000. The documentation upon which this statement was based was not admitted into evidence but it is apparent from the record that the amount of the prior liens testified to was considered by the trial court in assessing Avondale Liquor’s financial condition.

Avondale Liquor also argues that the trial court failed to consider its ability to acquire additional assets. However, our review of the record establishes that the trial court considered all of the financial information submitted by Avondale Liquor. It cannot be concluded that the trial court’s assessment of each taxpayer’s financial condition resulted in a decision which was arbitrary or an abuse of discretion.

Ill

Finally, Avondale Liquor contends that the time limitation of section 12 of the Act is an unconstitutional infringement upon the supreme court’s rule-making authority governing appeals. However, as we pointed out in Bee Jay’s Truck Stop, Inc. v. Department of Revenue (1977), 52 Ill. App. 3d 90, 367 N.E.2d 173, section 12 specifically invokes the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 3—101 et seq.) making applicable the well-established standard of review under the Act. (52 Ill. App. 3d 90, 93.) Additionally, the instant appeal is not an appeal from administrative proceedings. Plaintiffs’ appeals in this court are appeals from the circuit court’s order denying their petitions for imposition of a lien and dismissing their complaints for administrative review and entering judgment in defendant’s favor. Plaintiffs’ actions in the court below were for administrative review and here, are for review of a final order of a circuit court subject to the rules established by the supreme court pursuant to article VI, section 6 of the Illinois Constitution. (Ill. Const. 1970, art. VI, sec. 6.) The two are not inconsistent and there is no infringement upon the supreme court’s rule-making authority concerning appeals. Bee Jay’s Truck Stop, Inc. v. Department of Revenue (1977), 52 Ill. App. 3d 90, 93, 367 N.E.2d 173.

For the reasons herein stated, the trial court’s judgment denying plaintiff’s petitions and dismissing their complaints for administrative review is affirmed.

Affirmed.

PERLIN and HARTMAN, JJ., concur.

      Defendant contends that Avondale Liquor filed its petition three days late and should be dismissed regardless of the merits of the outcome of part I above. However, it is well established that objection to the 20-day rule may be waived by the Department where, as here, they failed to object at trial to the late filing. Glasco Electric Co. v. Department of Revenue (1981), 86 Ill. 2d 346, 353.

      At the November 24 hearing the trial court examined documents pertaining to the net worth of over 20 taxpayers in order to determine if the imposition of a lien was warranted. Where it was demonstrated that sufficient assets did exist which would secure defendant’s interest, a lien was imposed (e.g., lien granted as to Truss Company).


author: JUSTICE BARRY

text:
    FIRST GALESBURG NATIONAL BANK & TRUST COMPANY, Plaintiff-Appellant, v. LOUIS JOANNIDES et al., Defendants-Appellees.
    Third District
    No. 82—606
    Opinion filed August 4, 1983.
    Stephen R. Olson, of Lucas, Brown & McDonald, of Galesburg, for appellant.
    Barry M. Barash, of Barash, Stoerzbach & Henson, of Galesburg, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff, First Galesburg National Bank and Trust Company (Bank), appeals from an adverse judgment on its claim that defendants, Louis and Jennie Joannides, owed the Bank in excess of $102,000 on a guaranty signed by them to keep their son’s automobile dealership in business. The Joannideses presented several affirmative defenses, including that the Bank disposed of the secured collateral in a commercially unreasonable manner and without notice to the guarantors, and that the terms of the guaranty had been modified orally prior to the defendants’ signing of the guaranty instrument. Following a jury trial in the circuit court of Knox County, a general verdict was returned in the defendants’ favor. On appeal the Bank raises several issues challenging the jury’s verdict, only one of which we need address, because we hold that the Bank’s failure to comply with the notice requirement of section 9—504(3) of the Illinois Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 9—504(3)) barred it from recovering any deficiency from the defendants.

The relevant facts in this appeal may be stated simply. The defendants’ son, Tim Joannides, was the owner and president of a corporation known as “Town & Country Dodge Co.,” a new and used car dealership located in Galesburg, Illinois. Plaintiff Bank financed the acquisition of new cars with a floor plan arrangement. The floor plan loan had a credit limit of $425,000. In consideration for additional security interests on the used cars, parts and equipment, Town & Country was given an over-all credit line limit at plaintiff Bank in the amount of $600,000. In the latter part of 1979 and early 1980, the dealership was having financial problems and the Bank began pressing Tim Joannides to move his floor plan elsewhere. Joannides was unsuccessful in his endeavor to do so and ultimately struck an agreement with the Bank whereby the Bank would continue to provide financing to keep Town & Country afloat if Tim would get his parents to sign a $50,000 guaranty. Tim’s parents, the defendants, were residing in Florida, and upon learning of their son’s predicament, signed the guaranty on February 19, 1980, and returned it to Tim, who presented it to the Bank. In addition to the principal guaranty of $50,000, the terms of the signed instrument extended to interest on “all loans and/or advances hereunder.”

Town & Country’s financial troubles were still far from being resolved, however, and in May 1981, the Bank finally closed the business and forced it into bankruptcy. Between May 8 and May 23, 1981, the Bank had sold seven of the repossessed vehicles. On May 23, the Bank sent the defendants a letter stating:

“On Friday, May 8, 1981 the doors of Town and Country Dodge were closed to the public and subsequent to that the business has been placed in bankruptcy.
The intent of this letter is to notify you that it now appears a loss will be realized and the bank will be forced to ask you to honor your guarantee of $50,000 dated February 19,1980.
We are available at your convenience to discuss this situation if you have any questions.” (Emphasis added.)

The defendants did not respond to the letter. The Bank proceeded to liquidate the remainder of the repossessed property and, after applying the proceeds to the balance due the Bank on Town & Country’s loans, arrived at a deficiency balance of $161,628.79 in principal and $52,829.19 in unpaid interest as of the date of trial.

In their suit against the guarantors, the Bank sought $102,829.19, representing the $50,000 guaranty plus $52,829.19 in interest. At trial, Tim Joannides testified that Mr. Lary Wright and Mr. James Anderson, Bank vice-president and assistant vice-president, respectively, had orally agreed to release the defendants from their $50,000 guaranty if Town & Country succeeded in reducing its debts on the floor plan loan to within $425,000 and maintaining it at or below that line for a satisfactory period of time. The oral agreement was purported to have been entered into in January of 1980. Although the balance due on the floor plan loan was under the stated figure by at least August of 1980, Tim Joannides’ efforts to get the Bank to honor the alleged agreement and release his parents were unsuccessful. Both Mr. Wright and Mr. Anderson denied having orally agreed with Tim to release the defendants on any terms.

Although the record in this case is replete with facts and figures sufficient to boggle the proverbial Philadelphia lawyer, they are largely unnecessary to the disposition of this appeal. The clue to this case lies in the May 23, 1981, letter sent by the Bank to Mr. & Mrs. Joannides. The Bank does not deny that no other communication was sent by it to the defendants prior to the institution of this lawsuit. It is not what the letter says, but what it does not say, this is relevant here.

Section 9—504(3) of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 9—504(3)) requires that the secured party — the Bank — send “reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made” (emphasis added) to the debtor — in this case, the Joannideses as guarantors. (See Commercial Discount Corp. v. Bayer (1978), 57 Ill. App. 3d 295, 372 N.E.2d 926.) Failure to comply with the notice requirement bars the secured party from recovering a deficiency following the sale of the repossessed collateral. State National Bank v. Northwest Dodge, Inc. (1982), 108 Ill. App. 3d 376, 438 N.E.2d 1345; Stensel v. Stensel (1978), 63 Ill. App. 3d 639, 380 N.E.2d 526.

The Bank’s May 23 letter can hardly be construed as reasonable notification of any intended disposition of the repossessed collateral. No mention is made that any sale, public or private, did, or may in the future, take place. The Joannideses were thus not given an opportunity to attend any sale or bid on any of the vehicles had they desired to do so. The Bank will not be heard to complain that, in fact, the Joannideses knew or should have known by May 1 or May 2, 1981, that their son’s business was closed down and that the repossessed collateral would be sold thereafter. The notice provision of section 9—504(3) is clearly mandatory, rather than directory. State National Bank v. Northwest Dodge, Inc.

The Bank urges that we reject the “punitive” absolute bar theory in favor of a “remedial” rebuttable presumption approach which was followed in National Boulevard Bank v. Jackson (1981), 92 Ill. App. 3d 928, 416 N.E.2d 356. The latter theory was applied by the trial court in this case and the jury was instructed accordingly.

Recognizing that there is a difference in opinion within the Illinois Appellate Court (see State National Bank v. Northwest Dodge, Inc. (summarizing the case law applying both theories in Illinois)), we remain convinced that the absolute bar approach, requiring strict compliance with the statutory notice of provisions of section 9—504(3), is the better-reasoned of the two. See Morris Plan Co. v. Johnson (1971), 133 Ill. App. 2d 717, 271 N.E.2d 404.

Under the rebuttable presumption approach “[fjailure to provide adequate notice does not *** absolutely bar a deficiency judgment, but raises the presumption that the value of the secured collateral is equal to the amount of the debt. In order to obtain a deficiency judgment, the creditor has the burden of rebutting the presumption and of proving that the amount collected from the sale was commercially reasonable.” National Boulevard Bank v. Jackson (1981), 92 Ill. App. 3d 928, 931, 416 N.E.2d 356, 360-61 (citing Tauber v. Johnson (1972), 8 Ill. App. 3d 789, 291 N.E.2d 180; General Foods Corp. v. Hall (1976), 39 Ill. App. 3d 147, 349 N.E.2d 573; National Republic Bank v. Proctor (1978), 66 Ill. App. 3d 534, 383 N.E.2d 1310; Chicago City Bank & Trust Co. v. Wilson (1980), 86 Ill. App. 3d 452, 407 N.E.2d 964).

We find this position unacceptable because the Bank, by not complying with the notification requirement, places the guarantors, in this case, “in the difficult position of refuting the *** [Bank’s] evidence that the sale[s] [they] did not even attend [were] commercially reasonable.” (State National Bank v. Northwest Dodge, Inc. (1982), 108 Ill. App. 3d 376, 381, 438 N.E.2d 1345, 1349.) In our view, the Bank’s failure to properly notify the Joannideses prior to conducting sales of the repossessed vehicles and other collateral tainted the sales and extinguished the Joannideses’ obligations on the guaranty. Whether the Joannideses might or might not have elected to attend the sales invites unnecessary speculation, since the Bank failed to send a notice of proposed sales in the first place. Furthermore, the amount collected at the sales merely mitigated the Bank’s losses, and whether or not the amounts collected were commercially reasonable does not cure the lack of proper notice.

Finally, we are unpersuaded by the Bank’s argument that the Joannideses were adequately protected from the Bank’s failure to comply with its duty to notify by section 9 — 507(1) which permits a debtor to recover losses incurred as a result of the Bank’s noncompliance. This argument was specifically rejected in State National Bank v. Northwest Dodge, Inc., wherein the court quoted with approval from Wilmington Trust Co. v. Conner (Del. 1980), 415 A.2d 773, 780:

“ ‘The burdens placed on the creditor under the Code are minimal, while the results of his noncompliance may be very onerous to the debtor. *** We are unable to see any unfairness in protecting the debtor’s rights to the exclusion of those of the creditor when the creditor has been placed in such a high degree of control over the relationship and carries such a small burden in order to gain the advantages of the Statute.’ [Citation.] See also Spillers v. First National Bank (1980), 81 Ill. App. 3d 199, 400 N.E.2d 1057 (debtor’s right to damages is cumulative to the barring of a deficiency).” 108 Ill. App. 3d 376, 381, 438 N.E.2d 1345, 1349.

In sum, we hold that the defendants were entitled to judgment as a matter of law on grounds of undisputed evidence that the plaintiff Bank failed to comply with the notice requirement of section 9 — 504(3) of the Uniform Commercial Code. The remainder of the Bank’s issues in this appeal, raising questions about the admissibility of certain evidence and the weight of evidence to support the jury’s verdict, are obviated by our holding. Nor need we speculate upon whether the jury’s verdict was based upon a finding that the Bank had failed to establish that the amount it collected from sales of the collateral was commercially reasonable or whether the jury found for the defendants on one or more other bases.

For the foregoing reasons, we affirm the judgment of the circuit court of Knox County.

Affirmed.

ALLOY and SCOTT, JJ., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CALVIN GREEN, Defendant-Appellant.
    First District (3rd Division)
    No. 81—1731
    Opinion filed August 3, 1983.

      Steven Clark and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Stoioff, and Stephen Erhard Eberhardt, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Calvin Green appeals from the conviction and 25-year prison sentence he received on November 3, 1980, after pleading guilty to charges of murder, armed violence and armed robbery. His guilty plea was made and accepted after he had received all the required admonishments. Sentence was entered on the murder charge only. On December 4, 1980, defendant signed a notarized motion to withdraw his guilty plea and an affidavit. This motion was filed pro se in the circuit court on December 8, 1980. The public defender of Cook County was appointed to represent defendant. A motion to withdraw as attorney for defendant by the assistant public defender assigned to the case was denied by the trial court. After defendant’s motion to withdraw his guilty plea was amended, the trial court dismissed the motion because it had not been timely filed.

The issues on appeal are whether the defendant’s failure to timely file a motion to withdraw his guilty plea should be excused, whether he was denied the effective assistance of counsel in presenting his motion and whether there was a bona fide doubt of his fitness to plead guilty.

On January 18, 1979, Herman Davis, Jr., was found shot and buried in a snowdrift in Dixmoor, Illinois. On February 4, 1979, defendant’s codefendant, James Miller, made a statement confessing to his participation in this murder. On February 8, 1979, defendant also made a complete statement of his participation in this crime. At the time of this incident, defendant was 17 years of age.

Pursuant to a request by the assistant public defender representing defendant, an examination was made by a doctor from a psychiatric institute of the circuit court of Cook County. A report issued by a staff psychiatrist on February 15, 1980, found defendant unfit to stand trial because he was unable to cooperate with counsel. The report stated defendant was suffering from a “Depressive Reaction” and that he had shown some psychomotor retardation. The report further stated defendant had thoughts of suicide, heard voices calling his name and he believed people were talking about him. The psychiatrist concluded defendant should be fit within one year and requested the statements made to the police and another visit with defendant.

Two weeks later the same staff psychiatrist found defendant mentally fit for trial. This report stated defendant “understands the nature of the charge pending against him, the purpose of the proceedings against him, and is able to cooperate with counsel in his own defense.” The report also concluded that defendant was legally sane at the time of the incident and able to appreciate the criminality of the alleged offense. This report did not refer to the prior report and thus did not explain any reasons for the change in opinion.

Approximately six months later, on August 21, 1980, defendant and his codefendant pleaded guilty to the charges of murder, armed violence and armed robbery. The trial court admonished both individuals in accordance with Supreme Court Rule 402(a) (87 Ill. 2d R. 402(a)). Sentencing occurred on November 3, 1980.

A motion to withdraw a plea of guilty and vacate the judgment must be filed in the trial court within 30 days of the date on which sentence was imposed. (87 Ill. 2d R. 604(d); People v. Frey (1977), 67 Ill. 2d 77, 364 N.E.2d 46.) Generally, the lapse of more than 30 days from the imposition of sentence divests the trial court of jurisdiction to entertain the motion. (People v. Williams (1977), 53 Ill. App. 3d 335, 368 N.E.2d 706.) Exceptions to a filing of a motion under Supreme Court Rule 604(d) have been made where the trial court failed to properly admonish the defendant pursuant to Supreme Court Rule 605(b) (87 Ill. 2d R. 605(b); People v. Gramlich (1979), 69 Ill. App. 3d 23, 386 N.E.2d 1171) and where the failure to file such a motion constituted ineffective assistance of counsel (People v. Morguez (1980) , 90 Ill. App. 3d 471, 413 N.E.2d 128). See People v. Newbolds (1981) , 98 Ill. App. 3d 1018, 425 N.E.2d 9.

Defendant recognizes these exceptions and argues that the circumstances presented here are similar because he lacked the mental capacity to comply with Rule 604(d) and also because he had ineffective trial counsel. In order to determine whether defendant’s situation would warrant an exception to the 30-day limit on Rule 604(d), we will examine the merits of his arguments.

First is the question whether he was unfit to stand trial and enter a plea. He contends that there was a bona fide doubt raised as to his fitness as a result of the first psychiatric report finding him unfit. Defendant claims the trial court was obligated sua sponte to order a fitness hearing once a bona fide doubt arose as to his fitness to stand trial. See People v. Korycki (1970), 45 Ill. 2d 87, 256 N.E.2d 798.

Due process is violated when an accused is required to stand trial or plead when he is not competent to do so. (Pate v. Robinson (1966), 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836; People v. Davis (1978), 65 Ill. App. 3d 580, 382 N.E.2d 594, appeal denied (1979), 72 Ill. 2d 583.) Fitness for trial consists of the ability to understand the nature and purpose of the proceedings and the ability to assist in one’s own defense. (Ill. Rev. Stat. 1981, ch. 38, par. 104—10; see People v. James (1980), 83 Ill. App. 3d 1078, 404 N.E.2d 1088.) Whether a bona fide doubt has been raised is a decision resting largely within the discretion of the trial court. People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677; People v. James.

The second psychiatric report concluded that defendant was fit to stand trial. Defendant discounts the value of this report since it was stated in conclusory terms and did not explain the original report. While this report minimally comports, if at all, with the statutory requirements (Ill. Rev. Stat. 1981, ch. 38, par. 104—15(a)), it does reflect the conclusion of the staff psychiatrist that defendant was fit for trial and able to cooperate with counsel in his own defense.

“A doubt as to fitness at some point in the past does not equate to a doubt as to fitness on another occasion in the future.” (People v. James (1980), 83 Ill. App. 3d 1078, 1082.) The mere fact that a defendant has suffered some mental disturbance or required psychiatric treatment does not necessarily raise a bona fide doubt as to his ability to understand the nature and purpose of the proceedings or to assist in his defense. (People v. Davis (1978), 65 Ill. App. 3d 580, 589, citing People v. Richeson (1962), 24 Ill. 2d 182, 181 N.E.2d 170, and Withers v. People (1961), 23 Ill. 2d 131, 177 N.E.2d 203.) This principle would be applicable where a defendant manifests to the court and to his counsel a coherence and lucidity inconsistent with a claim of unfitness. People v. Davis (1978), 65 Ill. App. 3d 580, 589.

The transcript of the plea hearing in this case reveals defendant was aware of the proceeding and its nature. The trial court thoroughly explained the rights of defendant and the consequences of a guilty plea. Defendant manifested an understanding of these explanations. The transcript shows defendant, in a lucid manner, asked for further explanation of the right to a jury trial. After a more detailed explanation by the trial court, defendant indicated he understood he was waiving that right by entering a plea of guilty.

Defendant relies on People v. Harris (1983), 113 Ill. App. 3d 663, 447 N.E.2d 941, in which the court held that the only psychiatric report (in the form of the second report in the case at bar) did not comport with requirements of section 104—15(a)(1) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 104—15(a)(1)). This case is distinguishable on its facts. In Harris, the trial court was informed at a sentencing hearing that defendant was not present because he had eaten some metal and glass and had attempted suicide. The presentence investigation also revealed Harris had a history of treatment at the Chicago Mental Health Clinic as a child and two years of in-patient care at the Read-Zone Center. The psychiatric report was also apparently made the same morning as the sentencing hearing.

In the case at bar, the second psychiatric report, made two weeks after the first report, was made six months prior to defendant’s plea of guilty. There was no report of prior psychiatric care. Moreover, nothing in defendant’s behavior in court, as reflected in the record, or in his background raised any issue of his competence to plead guilty. We find nothing to indicate an abuse of discretion by the trial court in not ordering a fitness hearing.

Defendant next argues he did not receive effective assistance of counsel on his late motion to withdraw the guilty plea. He contends the appointed counsel, an assistant public defender, did not vigorously pursue the motion because it claimed incompetence on the part of the original public defender who represented him during the plea negotiations and final plea of guilty. (See People v. Smith (1967), 37 Ill. 2d 622, 230 N.E.2d 169.) Indeed, after being appointed, the assistant public defender tendered to the trial court a motion to withdraw as counsel since defendant’s pro se motion was alleging the incompetence of his prior counsel, also a public defender.

While there is a natural inclination for a public defender’s office to protect its reputation against charges of incompetence, a defendant does not have an absolute right to appointment of a nonpublic defender. (People v. Smith (1967), 37 Ill. 2d 622, 623-24.) A case-by-case inquiry should be made, rather than applying a per se rule of disqualification of a public defender’s office when a conflict arises. People v. Miller (1980), 79 Ill. 2d 454, 462, 404 N.E.2d 199; see also People v. Robinson (1979), 79 Ill. 2d 147, 402 N.E.2d 157; People v. Walton (1979), 78 Ill. 2d 197, 399 N.E.2d 588.

We disagree with defendant’s assertion that he was denied effective assistance of counsel. First, defendant’s pro se motion was not timely filed. As stated above, a lapse of 30 days divests the trial court of jurisdiction to entertain a motion to vacate a plea of guilty or “to adjudicate the merits thereof.” (People v. Stojetz (1977), 46 Ill. App. 3d 205, 207, 360 N.E.2d 1139.) Thus, defendant’s argument in this regard would have merit only if the alleged ineffective assistance of counsel actually prevented him from making a timely filing of his motion. (See People v. Brownell (1980), 86 Ill. App. 3d 697, 408 N.E.2d 304, appeal denied (1980), 81 Ill. 2d 603; People v. Meacham (1977), 53 Ill. App. 3d 762, 368 N.E.2d 400, appeal denied (1978), 67 Ill. 2d 594; People v. Morguez.) No such allegation or inference is made in the record before us.

Secondly, we feel the public defender’s office could have properly represented defendant on the merits if there had been a hearing on the motion. The attorney against whom defendant directs his original claims of incompetence left the public defender’s office during his representation of defendant. This occurred after the plea of guilty was made and before the sentencing hearing. Counsel did maintain the attorney-client relationship through the sentencing hearing. Given the situation at the time of defendant’s post-conviction motion, we feel the public defender’s office would have been able to fulfill its obligation as an advocate for the interests of defendant and avoid any inclination to protect its reputation against charges of incompetency. Cf. People v. Smith.

For the foregoing reasons, we affirm the decision of the trial court dismissing as untimely defendant’s motion to withdraw his guilty plea.

Affirmed.

RIZZI and WHITE, JJ., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES EARL ROPER, Defendant-Appellant.
    First District (2nd Division)
    No. 81—2827
    Opinion filed August 2, 1983.

      Steven Clark and Elizabeth Clark, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Michele A. Grimaldi, and Thomas Gearen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Following a bench trial, defendant, James Earl Roper, was convicted of two counts of battery (Ill. Rev. Stat. 1981, ch. 38, par. 12— 3). Count 1 charged defendant with committing a battery upon one Nancy Chalmers (Chalmers) and count 2 charged him with committing a battery upon his estranged wife, Patricia Roper (Roper). The court sentenced defendant to concurrent one-year terms of reporting supervision and, as conditions of the supervision, ordered him to: avoid all contact with his wife; receive treatment for alcoholism; and spend 24 hours in jail. On appeal, defendant contends that: (1) he was not proven guilty beyond a reasonable doubt; (2) the court improperly sentenced him to a jail term as a condition of supervision; (3) his prosecution in this cause violated an agreed injunction order entered in the domestic relations division of the circuit court of Cook County; and (4) he was denied the right to effective assistance of counsel.

Roper testified that at approximately 12 a.m. on August 19, 1981, she and her friend Chalmers came out of a bowling alley and found that two tires on Chalmers’ car had been slashed. They drove to Chalmers’ house to check on her children, then went to Roper’s house and found that two of Roper’s car tires had also been slashed. They then drove to defendant’s place of employment to ask him to stop harassing them. Defendant, who was in his car with a friend, saw them pull up and got out to meet them. When Roper asked him why he was harassing them, he punched her in the jaw and continued to hit her on the head and in the stomach and ribs until Chalmers shouted at him to stop. Defendant responded by hitting and kicking Chalmers until she secured refuge in Roper’s car. Defendant then resumed beating Roper until Chalmers pulled the car around and helped her escape.

Despite defendant’s threat that if they went to the police he would slash their tires again, Chalmers and Roper drove immediately to a police station to report the incident. When they left the station, they found that someone had slashed the tires on the car belonging to Roper’s mother which they had driven to the station. The police drove them home because Roper learned that defendant was at her house, smashing her car and threatening other people.

Chalmers essentially corroborated Roper’s testimony.

Defendant testified that at the time of the incident, he was sitting in his car with a friend. Roper came to the car and accused him of slashing her tires. When he called her a liar, she punched him in the eye. He further stated that on a previous occasion, she had walked into a tavern and hit him on the head. Defendant admitted hitting both Roper and Chalmers during the incident in question, but claimed that he did so in self-defense.

Defendant’s first contention, that he was not proven guilty beyond a reasonable doubt, is based upon his interpretation of complainants’ testimony. In a bench trial, it is the province of the trial court to determine the credibility of the witnesses and the weight to be given their testimony. The court’s findings will not be disturbed on review unless they are palpably erroneous. People v. Lester (1981), 102 Ill. App. 3d 761, 430 N.E.2d 358.

Although complainants’ testimony as to which tires were slashed first and which car they were driving at any given time was unclear, minor discrepancies in testimony do not render it unworthy of belief and affect only the weight to be given such testimony. (People v. Reed (1980), 84 Ill. App. 3d 1030, 405 N.E.2d 1065.) Neither the prosecutor nor defense counsel attempted to dispel any confusion on this point, which did not involve the central issue of the battery in any event. As to the issue of battery, both complainants testified that defendant initiated the fight by punching Roper and then Chalmers when she tried to intervene. They stated that neither had been drinking that night and had sought out defendant only to tell him to stop harassing them. The circuit court had the right to believe their testimony and disbelieve defendant’s claim of self-defense.

Defendant next contends that the court erred in imposing a 24-hour jail term as a condition of supervision. Sections 5—6—1 and 5— 6—3.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, pars. 1005—6—1, 1005—6—3.1) authorize orders of supervision and list conditions which the court may impose, including, inter alia, the payment of fines and costs, vocational training, treatment for alcoholism and restitution. Although section 5 — 6—3.1(c) specifically states that in addition to those conditions listed, the court may impose “other reasonable conditions relating to the nature of the offense or the rehabilitation of the defendant as determined for each defendant in the proper discretion of the court” it does not include any mention of incarceration. The concept of supervision therefore is more in keeping with a continuance, pending the defendant’s good conduct, with the potential dismissal of the charges (People v. Tarkowski (1981), 100 Ill. App. 3d 153, 426 N.E.2d 631) upon acceptable compliance.

In ascertaining legislative intent, statutes upon related subjects may be considered, although not strictly in pari materia. (People v. Boreman (1948), 401 Ill. 566, 571, 82 N.E.2d 459, cert. denied (1949), 336 U.S. 927, 93 L. Ed. 1088, 69 S. Ct. 649.) If the legislature had intended to include incarceration as one of the “reasonable conditions” which may be imposed in the court’s discretion, it could have so provided as it did in the statute specifying conditions of probation. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—6—3(b)(1).) Also of significance is the fact that the legislature set forth limits as to the term length of periodic imprisonment which may be prescribed as one of the conditions or probation (Ill. Rev. Stat. 1981, ch. 38, pars. 1005—6—3(b)(1), 1005—7—1); no such limits appear in the supervision statute, which involves a lesser penalty. This omission is yet another indication that the legislature did not contemplate the imposition of a jail term as compatible with an order of supervision. Since the 24-hour jail sentence in the present case was not statutorily authorized, it must be reversed.

Defendant next contends that his prosecution violated the terms of an agreed injunction order entered in the domestic relations division. The injunction, entered six days after the instant complaint was filed, is worded in part as follows:

“Mutual injunction: Each of the parties, their respective friends and families, until further order of Court, are mutually restrained from *** prosecuting any action of any kind or nature (including criminal action) against each other ***.”

As previously noted, the injunction order was entered six days after Roper and Chalmers filed their complaints and cannot be read retrospectively. Although Roper may have filed the complaint initially, it is the State, of course, not the complaining witness, which was responsible for prosecuting defendant and it was the State’s decision, not Roper’s, as to whether or not to continue to prosecute the action. Chalmers, who was also a victim of defendant’s conduct, was not subject to any restraint in aiding the State’s prosecution of defendant in any event. Finally, equity generally will not enjoin the prosecution of a crime. Brown v. City of Chicago (1953), 351 Ill. App. 366, 115 N.E.2d 354.

Defendant’s last contention is that he was denied his right to the effective assistance of counsel, citing People v. Wallace (1982), 106 Ill. App. 3d 580, 435 N.E.2d 1322, because his trial counsel, appointed on the day of trial, was ineffective due to the lack of opportunity to interview witnesses and discover any possible defenses.

In considering a charge of ineffective assistance of counsel, the totality of defense counsel’s conduct must be weighed. (People v. Murphy (1978), 72 Ill. 2d 421, 435-37, 381 N.E.2d 677.) His overall performance must be of such a caliber as to produce substantial prejudice without which the result of the trial would have been different. (People v. Greer (1980), 79 Ill. 2d 103, 121, 402 N.E.2d 203; People v. Withers (1983), 115 Ill. App. 3d 1077; People v. Talley (1981), 97 Ill. App. 3d 439, 422 N.E.2d 1084.) The principal incompetence alleged by defendant here is that different counsel would have been better able to question witnesses concerning the injunction order. As previously discussed, the injunction referred to had no application to the case at bar. Furthermore, the court in People v. Wallace specifically noted that its decision was based upon the accumulation of particular factors in that case, not for the proposition that ineffective assistance will be found in all cases where counsel is appointed on the date of trial. Defendant here has failed to establish either that his counsel was incompetent or that his conduct caused substantial prejudice as to have probably changed the result of the trial.

Accordingly, defendant’s convictions for battery and the one-year period of supervision are affirmed; the order of incarceration as a condition of supervision is reversed and vacated.

Affirmed in part; reversed in part.

DOWNING, P.J., and PERLIN, J., concur.


author: PRESIDING JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL KISSINGER, Defendant-Appellant.
    First District (3rd Division)
    No. 82—1833
    Opinion filed July 20, 1983.

      Norman Nelson, Jr., of Chicago (Ray Sabransky, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Randall E. Roberts, Assistant State’s Attorneys, bf counsel), for the People.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Daniel Kissinger, was charged with theft of services and obtaining services with intent to defraud. The services in question involved the transmission of 97 mailgrams and five overseas telephone calls, all of which were charged to another person without that person’s authorization. After a trial without a jury, he was found guilty of both charges and was sentenced to periodic imprisonment for four weekends.

Victor Weiss operated an automobile repair business in Kenilworth, Illinois. Over defense objection, Weiss testified that he repaired the brakes of defendant’s pick-up truck in July 1981. A month later defendant complained that the brakes were not working properly, and installation of a new part cost defendant an additional $80.

In October 1981, Weiss, who is Jewish, began receiving magazines to which he had not subscribed. They were addressed to J. Mengele, whom Weiss recognized as a German war criminal. Other addressees were Nazi generals and admirals. In November 1981, Weiss began to receive confirmations of mailgrams sent in his name to various people around the country. Weiss was billed a total of $450 for the mail-grams, none of which had been sent or authorized by him. Some of the mailgrams announced that Weiss was about to merge with a large company. Other mailgrams asserted that because the addressees owed Weiss at least $400, he did not wish to do business with them. Many mailgrams were sent to people in the neighborhood informing them that, because they were classified as Semites, Weiss did not want to do business -with them. Merchandise was also ordered in Weiss’ name and unauthorized newspaper ads for his business resulted in thousands of telephone calls.

Thomas Hartel, a friend and fellow college student of defendant, testified for the State that defendant had complained of being ripped off by Weiss, “that Jew in Kenilworth.” In the presence of another student, Adam Schellenberg, defendant added that possibly something could be done about it. In November 1981, Schellenberg told Hartel and defendant that he had placed orders for magazines and merchandise for Weiss. During the same month, defendant and Hartel were present when Schellenberg called in mailgrams for Weiss Tire Company.

On cross-examination and on examination by the court, Hartel stated that it was Schellenberg’s idea to send the mailgrams and that he had not seen defendant order any of them. Schellenberg was harassing Weiss in exchange for defendant’s help in writing a letter to a school dean. Hartel also stated that he had been charged with regard to sending the mailgrams.

After a recess, over defense objection, the State was allowed to recall Hartel on the grounds that new evidence had come to light. Hartel then testified that he and defendant had helped write the mail-grams and had helped look up the addresses. Furthermore, it was defendant’s idea to use Mengele’s name. Defendant, Schellenberg and the witness all made overseas telephone calls and charged them to Weiss.

Adam Schellenberg testified for the State and corroborated the testimony of Hartel that defendant had helped compose the mail-grams and had helped find addresses, and that both he and defendant had made telephone calls to England and New Zealand in Weiss’ name. It was Schellenberg’s idea to send mailgrams, and it was defendant’s idea to use Mengele’s name.

Defendant testified that he had been a little upset about the brake work done by Weiss and he told Hartel and Schellenberg that he had been ripped off by Weiss, referring to him as a Jew. Defendant denied expressing any desire to get even with Weiss, denied sending any magazines to Weiss or making any telephone calls in Weiss’ name. Defendant was not present on November 7 and 20 when mailgrams were sent, nor did he have any previous knowledge of these mail-grams. Although Schellenberg told him of his plan to send the November 14 mailgrams, defendant was present for only a few minutes and he did not participate in any way.

On cross-examination, over defense objection, defendant was asked whether his referral to people as Jews ever had an anti-semitic connotation and whether he was anti-semitic, whether he harassed Jews in his business and whether he automatically added a surcharge for all Jewish customers. Defendant denied all this and denied that he had dressed up as Hitler.

Moreen Alexander, a customer of defendant, testified in rebuttal that defendant informed her he did not like working in West Wilmette because of all the Jews and though that they should get rid of West Wilmette. Schellenberg testified in rebuttal that defendant told him he automatically added a $5 surcharge for all of his Jewish customers. In October 1981, Schellenberg saw defendant walking on their campus dressed as Hitler, complete with ROTC uniform, boots, swastika, penciled-in mustache, and hair parted on the side. Defendant was not dressing in that manner for a Halloween party.

On appeal defendant contends that the trial court erred in allowing testimony regarding materials sent prior to the alleged offense; that it erroneously admitted evidence regarding the ethnic background of Weiss and of the persons whose names appeared on the magazine labels; that it erred in allowing defendant to be cross-examined with regard to his anti-semitic attitude and behavior and in allowing rebuttal testimony based upon defendant’s denials of such behavior; that it erred in allowing Hartel to be recalled; that the prosecutor’s closing argument was prejudicial; and that defendant was not proved guilty beyond a reasonable doubt.

We first address defendant’s contention that the trial court erred in admitting evidence that, prior to the alleged offense, defendant sent magazines to Weiss in the names of Nazi war criminals.

Evidence of other crimes is generally inadmissible to show that defendant had a propensity to engage in the criminal activity with which he was charged. (People v. Lehman (1955), 5 Ill. 2d 337, 125 N.E.2d 506.) However, such evidence may be admissible if relevant for another purpose. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) Proof of other crimes tending to establish motive, intent, absence of mistake or accident, identification, or common scheme or plan has been held admissible. People v. Lehman.

We reject defendant’s argument that this evidence was offered merely to show defendant’s propensity to commit the crime with which he was charged. We find rather that it tended to establish a common scheme to harass Weiss by ordering items and services in his name with intent to defraud. In addition, the fact that some of the magazines sent by defendant were addressed to J. Mengele, the war criminal whose name was also used as signator in the mailgrams, is relevant with regard to the probability of defendant’s participation in the crimes charged. While this evidence could have been excluded if the trial court found that its prejudicial effect outweighed its probative value, such balancing is in the first instance left to the sound discretion of the trial court and we cannot say that the court abused its discretion. People v. Kirkwood (1980), 82 Ill. App. 3d 252, 402 N.E.2d 677.

Defendant also contends that the trial court erred in allowing testimony that Weiss and some of the recipients of the mailgrams were Jewish and that the labels on the magazines bore the names of Nazi war criminals. He urges that such evidence had no relevancy to the present issues and served only to prejudice defendant.

Prejudicial evidence which has no relationship to a defendant’s guilt or innocence should not be admitted. (People v. Bernette (1964), 30 Ill. 2d 359, 197 N.E.2d 436.) The evidence in question here was prejudicial to defendant in that it implied that he was anti-semitic. Yet, it did bear on his guilt and was therefore properly admitted. The evidence indicated the anti-semitic nature of defendant’s harassment of Weiss. Moreover, the use of Mengele’s name in both the magazines and the mailgrams not only links one incident with the other, thus revealing a common scheme to harass Weiss in a uniquely anti-semitic manner, but also tends to implicate defendant in both incidents.

Defendant next contends that the trial court erred in permitting him to be cross-examined with regard to his attitude toward Jews and that it further erred in allowing rebuttal evidence based upon that cross-examination.

On direct examination defendant not only denied participating in any harassment scheme, but he also denied wanting to get even with Weiss. He further stated that his reference to Weiss as a Jew was not unusual nor used in a derogatory manner. Due to the anti-semitic nature of the mailgrams therefore, we find that the evidence that the State attempted to elicit in an effort to establish defendant’s negative attitude toward Jews and toward Weiss in particular was relevant in that it tended to demonstrate that defendant participated in sending the mailgrams. Defendant’s attitude toward Weiss and Jews was a material issue in this case, and it was proper to offer rebuttal evidence to contradict defendant’s denials. People v. Gardner (1977), 47 Ill. App. 3d 529, 362 N.E.2d 14.

Defendant next argues that it was improper for the trial court to allow the State to recall Hartel as a witness after he was excused. Although the court allowed Hartel to give further testimony based upon the State’s representation that new evidence had come to light, defendant maintains that no new evidence was offered but rather that Hartel’s testimony on recall was completely contradictory to his earlier testimony.

Permission to recall a witness is within the sound discretion of the trial court. (People v. Thompson (1978), 57 Ill. App. 3d 134, 372 N.E.2d 1052.) Contrary to defendant’s contention, Hartel’s testimony on recall was not completely contradictory to his earlier testimony. Hartel initially testified that defendant had not actually placed any of the mailgram orders himself. The State failed at that time, however, to ask whether defendant had helped in any other way. Therefore, Hartel’s testimony on recall regarding defendant’s role in composing the mailgrams did not contradict his earlier testimony. Recall of a witness for the purpose of allowing the State to elicit additional testimony is within the court’s discretion. (People v. Faulkner (1978), 64 Ill. App. 3d 453, 381 N.E.2d 321; People v. Thompson (1978), 57 Ill. App. 3d 134, 372 N.E.2d 1052.) The only inconsistency concerned the number of occasions on which both defendant and Hartel were present during the sending of mailgrams. Hartel at first stated that defendant was present on one occasion and later asserted that he was present twice. There was no evidence of collusion by the prosecutor, however, and defendant had ample opportunity to cross-examine Hartel a second time. Furthermore, since Hartel was recalled during the State’s case, defendant was not prevented from preparing his case to counter the additional testimony. We find no prejudice to defendant and conclude that the trial court did not abuse its discretion in allowing the State to recall Hartel as a witness.

Defendant next maintains that he was denied a fair trial because of certain prejudicial remarks made by the prosecutor during closing argument. Specifically, the prosecutor referred to defendant as “a hate spewing bigot” and “a hot-tempered bigot.” In addition, the prosecutor stated that the issue of anti-semitism was “relevant because it * * * offended Mr. Weiss who is obviously Jewish” and that there were “far reaching ramifications beyond the criminal complaint.”

Defendant neither objected at trial when these comments were made nor did he raise them in a motion for a new trial. Consequently, the issue has been waived. (People v. Sullivan (1978), 72 Ill. 2d 36, 377 N.E.2d 17.) Moreover, in this trial without a jury, the remarks complained of could not be considered sufficiently prejudicial to warrant reversal.

Defendant urges that the trial court revealed that it had been influenced by these prejudicial remarks when it commented, upon sentencing defendant, “I wish I could send you to Dachau to take a tour of that. There is no room in this world for hate.”

This comment was made, however, at the time of sentencing, after defendant had already been found guilty. Since this was a trial without a jury and since there is no indication in the record that the comments were considered in making a determination of guilt, it must be presumed that the court relied only upon proper evidence in reaching a determination on the merits. People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649.

Defendant finally contends that he was not proved guilty beyond a reasonable doubt in that undue weight was given to the testimony of Hartel and Schellenberg where that testimony was both contradictory and vague as to dates and times. Defendant also urges that the testimony of these two witnesses, as accomplices, should have been viewed with suspicion.

In the present case two eyewitnesses clearly and positively testified that defendant participated in the offenses. While their position as accomplices required that their testimony be scrutinized carefully by the trial court, we note that the court was aware of their position as accomplices when it made a determination with regard to the credibility of their testimony, much of which was corroborated by the physical evidence. Furthermore, the testimony of the accomplices with regard to dates was sufficiently specific. Defendant was proved guilty beyond a reasonable doubt.

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

Judgment affirmed.

RIZZI and WHITE, JJ., concur.