author: JUSTICE WEBBER

text:
    THE PEOPLE ex rel. MONGOLIA BARBOUR, Plaintiff-Appellee, v. ROBERT HATCHETT, Defendant-Appellant.
    Fourth District
    No. 4—84—0635
    Opinion filed March 12, 1985.
    Robert T. Hall, of Ensel, Jones, Blanchard & LaBarre, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

This is an action brought by the State of Illinois on behalf of the plaintiff, Mongolia Barbour, pursuant to the provisions of the Paternity Act (Ill. Rev. Stat. 1983, ch. 40, par. 1351 et seq.). Plaintiff alleges that the defendant is the father of her son, who was bom out of wedlock. Following a bench trial, the circuit court of Sangamon County found that defendant was the father of the child. He now appeals, claiming that the court’s decision was against the manifest weight of the evidence.

The testimony elicited at the May 17, 1984, bench trial varied widely as to the relationship between plaintiff and defendant. Plaintiff testified that she began to see the defendant on a regular basis in 1977 and that they continued their relationship until 1980. She stated that they had sexual intercourse four or five times per week during this entire period except when she was hospitalized in December 1978. They usually met at her apartment on weekends and some weekdays at approximately 8 p.m. She testified that defendant generally left her residence at 3 to 6 a.m. She further testified that she had a five-year-old daughter who was also fathered by defendant. She stated that defendant often took this child on weekends and that he had given her money for this child’s support in the past. Plaintiff testilled that her relationship with the defendant ended abruptly in 1980. She stated that she last had sexual intercourse with defendant in June 1980. She could not remember an exact date, but did remember that it was on the evening of an election day, as she was returning from the polls. She stated that she became pregnant in June 1980 and that her son was born on March 21, 1981, in good health. Her doctor had told her to expect the child on March 28, 1981. She stated that she had no sexual contact with anyone else in June 1980. Plaintiff testified that defendant has never acknowledged that he is the father of her son. She stated that she did not tell him that she was pregnant.

Under cross-examination, plaintiff stated that she did not know if the defendant was circumcised. She also stated that she was “absolutely sure” that the last time she had sexual intercourse with defendant was on a school board election day. She believed that this election had been held in June. She stated that she remembered the fact that it was an election day more clearly than she remembered the exact date. She testified that they stopped having sexual intercourse because defendant stopped coming to her residence on weekends in order to take her daughter to his residence. She did not know why he ended their relationship. After she became pregnant in June 1980, she had no further conversations with defendant until after her son was born. She stated that she never told him, during this time, that she was pregnant with his child despite the fact that he still came to her residence. She did not list the defendant, as the father on her son’s birth certificate. She stated that defendant has never visited his alleged son, nor has he given him any money or gifts. She testified that defendant called her on one occasion after her son’s birth and denied that the child was his. He said it was not his child because he had had sexual intercourse with plaintiff only once. Plaintiff replied, “So.”

Defendant, on the other hand, testified that he had never had sexual intercourse with the plaintiff. He also denied that he had ever given her money or gifts or that he had ever visited the plaintiff’s daughter. He stated that he had never been in plaintiff’s residence and that he was only casually acquainted with her. He testified that he had been happily married to his present wife since 1956.

Carol Barbour (plaintiff’s sister) and Gloria Day testified that they had interrupted the plaintiff and the defendant on one occasion as they were copulating on Carol Barbour’s couch. Carol Barbour recalled that this incident occurred prior to 1980.

Peggy Ingram testified that she was a precinct committeeperson in 1980 and that she accompanied the plaintiff home from the polls after a school board election. On- that occasion, she observed and spoke to the defendant at plaintiff’s residence. She recalled that the election and this incident occurred on June 10, 1980.

Denise Curry, plaintiff’s eight-year-old daughter from a previous relationship, testified that the defendant had been to her mother’s home a “few” times and that he had taken plaintiff’s other daughter out of the house. However, he had not been to their home for a “long time” and he had never taken plaintiff’s son anywhere. She identified the defendant in the courtroom.

Margie Hatchett, the defendant’s wife, stated that she and defendant had a very good marriage. She testified that defendant was always at their home at night unless he was out of town.

Linda McKinley testified that she was a frequent visitor at the defendant’s home. She testified that defendant was present during her visits to the home approximately four times per week. She admitted that she was related by marriage to the defendant.

Defendant also introduced into evidence, without objection, the affidavit of Betty Legg, the secretary of the board of education of Springfield Public Schools District 186. Legg stated, that only one school board election had been held in 1980. That election was conducted on April 12,1980.

The trial court subsequently found that the preponderance of the evidence established that defendant was the father of plaintiff’s son. Defendant’s motion to reconsider was denied, and he was ordered to pay $75 per month for the benefit of the child. Timely notice of appeal was filed by defendant.

On appeal, defendant claims that plaintiff failed to sufficiently prove that he was the father of her child and that the trial court’s decision was against the manifest weight of the evidence. We agree.

In a paternity action, the burden is on the mother, as plaintiff, to establish paternity by a preponderance of the evidence. (People ex rel. Cizek v. Azzarello (1980), 81 Ill. App. 3d 1102, 401 N.E.2d 1177.) Generally, the testimony of the plaintiff, if believed, is sufficient to support a finding of paternity. (People ex rel. Raines v. Price (1976), 37 Ill. App. 3d 921, 347 N.E.2d 29.) The determination of the trier of fact will not be reversed on appeal unless it is found to be against the manifest weight of the evidence. Watkins v. Martin (1983), 115 Ill. App. 3d 417, 450 N.E.2d 866.

Here, plaintiff’s testimony and other evidence in her behalf, if believed, would establish that she last had sexual intercourse with the defendant on the date of a school board election in 1980. She was absolutely sure of this fact. She was less sure of the exact date of this election but she believed it was sometime in June 1980. However, the uncontroverted affidavit of the secretary of the school board established conclusively that the only school board election held in 1980 occurred on April 12, 1980. This date was nearly one year prior to the birth of plaintiff’s child. While a period of gestation of more than 11 months may be biologically possible, there is no evidence in the record, here, that would tend to show such an unusual pregnancy occurred here. It was the plaintiff’s burden to produce such proof. People ex rel. Adams v. Kite (1977), 48 Ill. App. 3d 828, 363 N.E.2d 182.

Moreover, the plaintiff herself asserted that she became pregnant in June 1980, approximately nine months prior to the birth. Her doctor predicted a due date of March 28, 1981. The birth on March 21, 1981, of a six pound, six ounce baby, if anything, would appear to be slightly premature. Therefore, plaintiff failed to prove that her son was conceived on or before April 12, 1980. See Matteson v. People ex rel. Kothe (1905), 122 Ill. App. 66.

While plaintiff also testified that the last time that she had sexual intercourse with defendant was in June 1980, she was emphatic that • she remembered that date because it was the election day when she returned to her residence with Peggy Ingram. She was absolutely sure that this “election day” was the last time that she had sexual intercourse with defendant. She was more certain that it was an election day than she was about the exact date. The affidavit of the secretary of the school board established that the election was actually held on April 12, 1980. Under these circumstances, the trial court would have been required to speculate that plaintiff was not truly certain that she had last had sexual intercourse with defendant on the date of a school board election in order to find that defendant was the father of her child. Contrary to her testimony, the trial court seems to have concluded that plaintiff actually was more sure that the last time she had sexual intercourse with defendant was in June 1980. Such a determination, based upon conjecture and speculation, should not form the basis for an adjudication of paternity. (See People ex rel. Adams v. Kite (1977), 48 Ill. App. 3d 828, 363 N.E.2d 182.) We believe that the trial court’s decision is against the manifest weight of the evidence.

For all of the foregoing reasons, the judgment of the circuit court of Sangamon County is reversed.

Reversed.

GREEN, P.J., and TRAPP, J., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
      In re ESTATE OF JERRY THOMPSON, Deceased (Elizabeth A. Shimp, Adm’x of the Estate of Diana Thompson, Petitioner-Appellant, v. Shirley Crane, Ex’x of the Estate of Jerry Thompson, Respondent-Appellee).
    Second District
    No. 84—384
    Opinion filed March 15, 1985.
    Jonathan L. Carbary, of Roeser, Vucha & Carbary, of Elgin, for appellant.
    Walter M. Donat, of Donat & Donat, of Batavia, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The administratrix of the estate of Diana Thompson filed a written instrument renouncing the will of Jerry Thompson. The circuit court of Kane County denied the petition to renounce, finding that there was “no logical, legal or equitable justification for granting permission to renounce the [w]ill of Jerry Thompson.”

The administratrix appeals.

The single issue the administratrix presents on review is whether the statutory right to renounce the will (Ill. Rev. Stat. 1983, ch. HOW, par. 2 — 8(b)) survived the death of Diana Thompson.

Jerry Thompson and his wife, Diana Thompson, were involved in a divorce proceeding. On April 5, 1983, Jerry Thompson executed his last will and testament, which did not include any provisions for his wife, Diana Thompson.

On May 5, 1983, Mr. Thompson allegedly shot his wife and then took his own life. Jerry Thompson died at 9:25 a.m. that same day as a result of a gunshot wound to the head; Diana Thompson died 45 minutes later, at 10:10 a.m., as a consequence of a gunshot wound to the chest.

On May 16, 1983, the trial court admitted Mr. Thompson’s will to probate, appointed the executrix of his estate, and issued letters testamentary to her.

On August 19, 1983, within seven months after admission of the will to probate (Ill. Rev. Stat. 1983, ch. 1101/2, par. 2 — 8(b)), the administratrix filed the instrument renouncing the will. The executrix of Jerry Thompson’s estate objected to the renunciation. Thereafter, the trial court denied the petition to renounce.

Section 2 — 8(b) of the Probate Act of 1975 provides, as pertinent here, that:

“In order to renounce a will, the testator’s surviving spouse must file in the court in which the will was admitted to probate a written instrument signed by the surviving spouse and declaring the renunciation.” (Ill. Rev. Stat. 1983, ch. 1101/2, par. 2— 8(b).)

Relying upon section 2 — 8(b), the administratrix of Diana Thompson’s estate argues that she was improperly denied the right to renounce Jerry Thompson’s will.

Both parties recognize that Rock Island Bank & Trust Co. v. First National Bank (1962), 26 Ill. 2d 47, is the leading case interpreting the effect of section 2 — 8(b). In Rock Island, the administratrix of an incompetent attempted to renounce the will of the incompetent’s husband after the incompetent had died. The issue presented in that case was “whether the right to renounce a will is statutory and personal and dies with the surviving spouse.” 26 Ill. 2d 47, 48.

The court in Rock Island recognized that the majority rule was that the right to renounce is personal and dies with the surviving spouse, regardless of competency. (26 Ill. 2d 47, 51.) The court stated that there was no logical reason why an incompetent spouse or the spouse’s representative should have any greater right with respect to renunciation than a competent surviving spouse. Of particular significance in the court’s view was the fact that the statutory enactment governing the right of renunciation included no provision allowing renunciation after the death of either a competent or incompetent spouse, thereby indicating to the court that the right of renunciation was purely personal. Also, our supreme court stressed that the legislature easily could have provided expressly that the right to renounce should continue after the death of the surviving spouse if that had been the legislature’s intention. In the court’s opinion, the legislature intended to provide for the personal welfare of the surviving spouse during that person’s lifetime; the needs for the surviving spouse’s comfort cease upon his or her death. 26 Ill. 2d 47, 51-52.

The court remarked, in addition, that the statute made no mention of the interest of prospective heirs or others who may take after the death of the surviving spouse. (26 Ill. 2d 47, 52.) The court went on to say that “[a]ny renunciation tends to defeat the intention of the testator, and it is our opinion that under the Illinois statute on renunciation the benefits to parties in interest other than the surviving spouse personally cannot be considered.” (Rock Island Bank & Trust Co. v. First National Bank (1962), 26 Ill. 2d 47, 52; accord, In re Estate of Dalton (1975), 60 Ill. 2d 451, 455.) The court determined that it could discern little equity in providing for the heirs' of a surviving spouse in opposition to the wishes and the will of the testator. Rock Island Bank & Trust Co. v. First National Bank (1962), 26 Ill. 2d 47, 52; cf. In re Estate of Dalton (1975), 60 Ill. 2d 451, 454; and Kinnett v. Hood (1962), 25 Ill. 2d 600, 603 (the interest of the heirs of the surviving incompetent spouse should not be considered, because the renunciation statute is for the benefit of the incompetent spouse).

In Rock Island, our supreme court adopted “the majority rule that the right to renounce a will is personal and dies with the surviving spouse regardless of her incompetency, in the absence of fraud, concealment, or conflicting interest of her representative.” (26 Ill. 2d 47, 52-53.) Accordingly, the court upheld the denial of the petition to renounce the will.

In Andrykowski v. Theis (1963), 40 Ill. App. 2d 182, 193, the court noted that the question of fraud, concealment, or conflicting interest can be raised only in cases where an incompetent attempts to assert the right of renunciation. In the case at bar, as was the situation in Theis, there is no question regarding the mental competency of the surviving spouse. In Theis, the court concluded that the administrator of the husband’s estate could not renounce the will of the wife after the husband’s death. 40 Ill. App. 2d 182, 191-94.

In passing, we note that the Illinois jurisprudence established in Rock Island Bank & Trust Co. v. First National Bank (1962), 26 Ill. 2d 47, and Andrykowski v. Theis (1963), 40 Ill. App. 2d 182, accords with the majority view. See Annot., 3 A.L.R.Sd 119, 145-56 (1965); Annot., 83 A.L.R.2d 1077 (1962).

The administratix argues that the right to renounce should exist in the present case because Jerry Thompson took the life of Diana Thompson, thereby preventing her from renouncing the will during her lifetime. She argues that public policy demands that a surviving spouse, such as Diana Thompson, not be precluded from renouncing a will after her death where she is murdered by the testator spouse. We believe that the rationale the supreme court employed in Rock Island applies with equal force in the present case. The only persons who would benefit in the present case if the administratrix’ argument were accepted are the heirs of Diana Thompson.

Additionally, we have reviewed the record on appeal, and we find no evidence of either murder or intentional and unjustifiable death. The record on appeal contains no facts admitted into evidence to substantiate either kind of demise. While the administratrix of Diana Thompson’s estate alleges Thompson murdered his wife, the executrix of Thompson’s estate denied this fact and no proof on this issue was adduced at the hearing. We cannot speculate as to what happened on May 5, 1983, when both Thompsons were found dead and dying with .45-caliber bullets in their head and chest. It is the responsibility of the appellant to see that the record on appeal is complete. (In re Estate of Ito (1977), 50 Ill. App. 3d 817.) The party prosecuting the appeal must furnish a record sufficient to establish reversible error (Kwok v. St. Anthony De Padua Hospital (1977), 54 Ill. App. 3d 719), and any doubt arising from incompleteness of the record will be resolved against the appellant (In re Estate of McGaughey (1978), 60 Ill. App. 3d 150).

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

Affirmed.

REINHARD and STROUSE, JJ., concur.


author: JUSTICE BARRY

text:
    FREY CORPORATION et al., Plaintiffs-Appellees, v. GILLDORN MORTGAGE MIDWEST, INC., Defendant-Appellant.
    Third District
    No. 3—84—0239
    Opinion filed March 12, 1985.
    Brian W. Blaesser, of Siemon, Larsen & Purdy, of Chicago, for appellant.
    Hollis W. Benjamin and James B. Lewis, both of Peoria, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiffs, Frey Corporation and Sinnco, Inc., brought a complaint on November 14, 1983, in the circuit court of Peoria County, seeking to recover damages for the alleged breach of a contractual duty owed by defendant, Gilldorn Mortgage Midwest Corporation, successor in interest to Percy Wilson Mortgage and Finance Corporation. Gilldorn, through its attorney, filed a special and limited appearance and moved to transfer the cause for proper venue to the circuit court of Cook County. The motion was denied, and defendants petitioned for leave to appeal in this court. (87 Ill. 2d R. 306(a)(l)(iv).) We granted defendant’s petition and now affirm the trial court’s denial of the motion to transfer.

Plaintiff Frey, through its president Brian Frey, retained M. E. Hoffman Company in 1979 to act as the mortgage banker/broker for a construction project in Peoria known as Lexington West Apartments. Hoffman was a Springfield (Sangamon County) based firm. Its vice-president, Marion Ring, called upon Frey at Frey’s offices in Peoria and formalized their relationship with respect to the project on April 20, 1979, when Ring accepted Frey’s check for $4,509, representing the application fee for obtaining a “Firm Commitment for Insurance of Advances” from the Department of Housing and Urban Development. The firm commitment was to be secured and extended, as necessary, until work on the project began. The HUD office serving the Peoria area is located in Chicago, Cook County. On November 21, 1979, HTJD approved Hoffman’s application and issued to Hoffman a firm commitment in the amount of $1,496,400 for funding the Lexington West project. The contract for the commitment as it appears in the record before us was amended on December 5, 1979, and March 7, 1980. It lists the sponsor for the project as “Sinn, Inc. et al” of Peoria.

Subsequently, on June 29, 1981, Hoffman entered into an agreement with Percy Wilson Mortgage and Finance Corporation in which Hoffman assigned its interests in the Lexington West project to Percy Wilson. It appears from the record before us that the assignment document was brought by Ring to Peoria for plaintiff’s signature on the consent portion of the form. Also while in Peoria, Ring introduced plaintiffs to Patricia Rose, a senior officer of Percy Wilson. The assignment was consented to in Peoria by Ronald Sinn for “Sinn, Inc.,” as sponsor, on July 2, and in Chicago by the Federal Housing Administration on July 22,1981.

Thereafter, plaintiffs paid Percy Wilson a nonrefundable commitment fee in the amount of $37,038 to secure the commitment previously obtained by Hoffman.

On September 29, 1982, the firm commitment expired, allegedly as a result of Percy Wilson’s breach of a duty to secure timely extension or to take reasonable steps to re-open the expired firm commitment. In addition to the loss of fees paid to the mortgage bankers/brokers, plaintiffs allege substantial damages for loss of syndication fees and other costs related to the proposed construction project.

In this appeal, Gilldorn argues initially that the trial court erred in denying its transfer motion by applying a forum non conveniens analysis when the issue was, instead, one of proper venue. The record before us contains no transcript of proceedings or other common law document to substantiate defendant’s position that the trial court was confused about the theory upon which defendant’s motion to transfer was based. In fact, the record on appeal directly refutes the defendant’s contention. The sole document reflecting the trial court’s consideration of the issue is the court’s order of March 1984, denying the defendant’s motion. That order states as follows:

“The Court previously heard and took under advisement the defendant’s motion to transfer to proper venue. The Court is now ready to announce its decision.
It is order that defendant’s motion to transfer to proper venue be and is hereby denied.” (Emphasis added.)

The balance of defendant’s arguments on appeal challenge the correctness of the trial court’s order on grounds that the transaction out of which plaintiff’s cause of action arose occurred exclusively or primarily in Cook County, rather than in Peoria County. Plaintiffs take the position that while proper venue could lie in Cook County, venue is also proper in Peoria County because a significant part of the transaction out of which their cause of action arose occurred there.

The issue before us requires interpretation of the Illinois venue statute (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 101) in terms of the operative facts of this case. That statute, in relevant part, states as follows:

“Except as otherwise provided in this Act, every action must be commenced (1) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him or her and not solely for the purpose of fixing venue in that county, or (2) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.”

Since plaintiffs do not dispute defendant’s contention that it and its predecessor in interest, Percy Wilson, resided only in Chicago, the relevant inquiry focuses upon where the “transaction or some part thereof occurred out of which the cause of action arose.”

Defendant first advances its position on the theory of novation, contending that the only transaction out of which the contract at the heart of this cause of action arose was the assignment of commitment agreement whereby defendant’s predecessor in interest accepted Hoffman’s assignment in Chicago, and plaintiffs consented to it, thereby working a novation and extinguishing the prior agreements between Hoffman and plaintiffs. The Federal Housing Administration’s later consent to the assignment in Chicago, defendant continues, constituted “execution” of the assignment. Ergo, defendant concludes, venue could lie only in Cook County.

Defendant’s novation argument, unsupported by legal authority, is unpersuasive and must fail. Whether a novation may be said to have resulted from the assignment, we do not believe that a resolution of that question necessarily results in the conclusion urged by defendant.

Defendant’s narrowly defined construction of “transaction” on the sole basis of where a contract is “executed” does not comport with the principle of convenience of witnesses, which the legislature sought to promote through the venue act currently in force in Illinois. (See Christopher v. West (1952), 345 Ill. App. 515, 527, 104 N.E.2d 309, 314.) Our review of precedent case law convinces us that a broader definition applies.

The word “transaction” was discussed in great detail in Christopher v. West (1952), 345 Ill. App. 515, 528,104 N.E.2d 309, 315:

“ ‘ “ ‘[A] “transaction” is something which has taken place, whereby a cause of action has arisen *** and by which the legal relations of such persons between themselves are altered,’ ” [quoting from La Ham v. Sterling Canning Co. (1943), 321 Ill. App. 32, 44, 52 N.E.2d 467, 472; VanMeter v. Goldfarb (1925), 317 Ill. 620, 623-24, 148 N.E. 391, 392, 41 A.L.R. 343; and Craft Refrigerating Mach. Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 29 A. 76, 25 L.R.A. 856]. *** [T]he word “transaction” *** is held to mean every variety of affairs which forms the subject of negotiations or actions between the parties.’ ” ’ [quoting from LaHam; Van Meter-, and Barnett’s Adm’r v. Brand, 165 Ky. 616, 177 S.W. 461.] In Schmelzle v. Transportation Inv. Corp., 341 Ill. App. 639, [94 N.E .2d 682,] *** the court said: *** ‘In the instant case, plaintiff and defendant had no personal or direct dealings in any county, however, certain acts, which were integral parts of plaintiff’s cause of action and which he would have to establish in order to assert any rights on the instrument, occurred in *** Stephenson County ***. Under these circumstances, it would appear that a substantial part of the “transaction” out of which plaintiff’s *** cause of action arose, did occur in Stephenson County ***.’ ”

In Kenilworth Insurance Co. v. McDougal (1974), 20 Ill. App. 3d 615, 617, 313 N.E.2d 673, 675, the court discussed “transaction” in the context of third parties.

“There are cases which use the language that the transaction refers only to dealings between the parties themselves and not to dealings which one of the parties had with third persons which are incidental or preliminary to and do not form the basis for the cause of action. [Citations.] But where dealings with third parties have a definite and direct bearing on the cause of action (for the purpose of determining venue), such dealings are part of the transaction out of which the cause of action arose.”

Defendant’s position that proper venue lies in Cook County is supported by Kenilworth to the extent that Percy Wilson’s “transaction” with HUD had a direct bearing on plaintiff’s cause of action, but we do not read the court’s language as precluding the possibility that proper venue may lie in the county where dealings between the parties themselves occurred as well.

Finally, our independent research discloses a recent opinion from the First District Appellate Court, which considers the transactional element of venue in a factually analogous setting to the case before us. In Hanna v. Breese Trenton Mining Co. (1983), 114 Ill. App. 3d 657, 449 N.E.2d 226, a corporate defendant wrongfully withheld payment of declared dividends owed to the plaintiff. Plaintiff in Hanna resided in Cook County, Illinois, and the defendant corporation resided in Richland County, Illinois. Individual defendants resided in Clinton County, Illinois, and St. Peters, Missouri. Plaintiff shareholder had previously been paid dividends since 1976 and had received them in Cook County. In 1981, the corporation declared dividends of $20 per share of common stock and paid them out to certain of its shareholders, but not to the plaintiff, despite plaintiff’s repeated demands. Plaintiff sued in Cook County and defendants moved for change of venue to Richland County. The motion was granted in the trial court, but reversed on appeal.

The Hanna court framed the issue before it thus: “[T]he issue here presented is whether nonpayment of dividends by a corporation, with its registered office in Richland County, to a shareholder residing in Cook County is sufficient basis under the statutory language [Ill. Rev. Stat. 1981, ch. 110, par. 2 — 101(b)] to authorize venue in Cook County in a suit by the shareholder.” (Hanna v. Breese Trenton Mining Co. (1983), 114 Ill. App. 3d 657, 658, 449 N.E.2d 226, 228.) Defendants’ argument on appeal was that the only basis alleged by plaintiff for venue in Cook County was “non-receipt of a declared dividend” in Cook County, and that this could not be a “transaction” for purposes of the venue statute. The court disagreed. Relying primarily on Bagarozy v. Meneghini (1955), 8 Ill. App. 2d 285, 131 N.E.2d 792, the court observed that “an action for breach of contract is proper at the locale of that breach.” Since payment of money is required at the payee’s residence, the court concluded that the breach of a duty to pay dividends occurs at the shareholder’s residence. On this basis, venue was proper in Cook County.

With the foregoing analyses in mind, we turn to the situation at hand to determine whether a part of that transaction out of which plaintiff’s cause of action arose occurred in Peoria County. In the instant case, as in Hanna, plaintiffs complain of the breach of a contractual duty by reason of defendant’s (or its predecessor in interest) failure to perform a duty owed to plaintiffs on the basis of an express agreement or past performance. Specifically, plaintiff complains that “Percy Wilson held itself out to be a competent mortgage banker and broker who would undertake to secure a firm commitment and then, once it had been obtained, secure timely extensions of same until such time as work on the project began.” Plaintiff alleges breach of that duty in that Percy Wilson:

“failed to make timely request for extension of the Firm Commitment which had been granted Plaintiffs but which was set to expire September 29, 1982;
failed to take reasonable steps after September 29, 1982, to secure extension of the Firm Commitment which had previously been granted and which expired on that date; and failed to take reasonable steps to re-open the expired Firm Commitment within the time provided by law.”

We note that duties as between mortgagee (defendant) and sponsor (plaintiffs) are not set forth in the agreement entitled “Commitment for Insurance of Advances” and issued by the Secretary of HUD. Similarly, the 1981 assignment document refers only to assignment of Hoffman’s “interest” in the commitment. It does not describe or otherwise refer to any duties owed by the mortgagee to the sponsor. The fact that the relationships among the sponsor, HUD and the mortgagee may not have been established until HUD issued the firm commitment, as argued by defendant, does not diminish the fact that duties owed plaintiffs by defendant’s predecessors in interest must have had prior or independent sources from the firm commitment documents themselves. Affidavits and counteraffidavits of record establish that the duties plaintiffs have alleged, if such existed at all, must be derived from the original agreement entered into between Frey and Ring in Peoria in 1979, or from discussions between plaintiffs and Patricia Rose, the officer of Percy Wilson who was introduced to plaintiffs in Peoria upon Hoffman’s assignment of the firm commitment in 1981. Furthermore, the duty allegedly breached in this case involved a “transaction” which was to be performed in Cook County, but which was for the sole benefit of and depended for its existence upon the project in Peoria County. Since the alleged duty to secure extensions or reopen the expired firm commitment allegedly existed only until work on the Lexington West apartment project began, it seems abundantly clear that “some part of the transaction out of which the cause of action arose” occurred in Peoria County — namely the failure to commence work on the project before September 29, 1982, when the prior extension expired.

Although we have no doubt that venue would have been proper in Cook County, the plaintiff’s election to sue in Peoria County does not offend the legislative purpose of the Illinois venue statute. Witnesses to “some part” of the transaction will be convenienced by plaintiff’s choice of venue, and, as plaintiff correctly observes, venue may properly lie in more than one jurisdiction. Where such is the case, the plaintiff’s choice of one of two or more available jurisdictions should not be disturbed. The trial court committed no error in denying defendant’s motion to transfer this cause to Cook County.

For the reasons stated herein, we affirm the order of the circuit court of Peoria County.

Affirmed.

WOMBACHER, J., concurs.

HEIPLE, P.J., concurs with the result.


text:
    PRECISION COMPONENTS, INC., Plaintiff-Appellant and Cross-Appellee, v. KAPCO COMMUNICATIONS et al., Defendant-Appellee and Cross-Appellant.
    First District (5th Division)
    No. 83—3046
    Opinion filed March 8, 1985.
    Arnstein, Gluck, Lehr, Barron & Milligan, of Chicago (Patrick Mazza and Sally Y. Mengo, of counsel), for appellant.

      Eugene F. Friedman, of Chicago, for appellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff, Precision Components, Inc., appeals from an order granting defendant’s, Ken Rubel, d/b/a Kapco Communications, motion for expenses and attorney fees (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611) in the amount of $1,297.40. The issues presented are: (1) whether the trial court erred in finding that plaintiff’s allegations seeking recovery from defendant individually were untrue and made without reasonable cause; (2) whether the trial court erred in finding that plaintiff’s allegation claiming additional damages was untrue and made without reasonable cause and in ruling on the truth of this claim prior to a trial on the merits; and (3) whether defendant showed that actual expenses were incurred as a result of plaintiff’s allegations. Defendant cross-appeals, raising the issue of whether the trial court erred in reducing the award of expenses and attorney fees because a portion of the trial time might be used in a subsequent lawsuit. We reverse.

During 1982, Kapco Communications (Kapco) contracted with plaintiff for the purchase of battery chargers. The original purchase order for these goods issued to plaintiff bore the purchaser’s designation as “Kapco Communications.” This purchase order did not identify Kapco as a division of K. L. Rubel & Associates, Ltd. (K. L. Rubel, Ltd.). Plaintiff invoiced these and subsequent purchases to Kapco’s account. Apparently, correspondence regarding these purchases from plaintiff was received by defendant at Kapco. Checks received in payment on the account were drawn on Kapco’s account and signed by defendant without any indication that he was signing the checks in a corporate capacity.

It appears that defendant was the president of K. L. Rubel, Ltd. In June 1978, K. L. Rubel, Ltd., purportedly registered the name of Kapco, one of its divisions, as an assumed name of the corporation in the office of the Cook County recorder of deeds. In February 1983, defendant sent a letter to Art Sears (Sears), plaintiff’s sales representative. This letter revealed that neither K. L. Rubel, Ltd., nor Kapco was in existence any longer. It also informed plaintiff that the proper corporate name was Kapco, Inc., although this name change was not to be effected until April 1983, some two months later. A check of the office of the Cook County recorder of deeds disclosed no record of an assumed name filing by K. L. Rubel, Ltd. As of March 30, 1984, no assumed name filing had been made in the office of the Secretary of State. The Secretary of State’s records also showed that K. L. Rubel, Ltd., never filed a name change, that on December 1, 1978, Kapco, Inc., was involuntarily dissolved, and that there is no current corporation by the name of Kapco, Inc.

On June 13, 1983, with Kapco in arrears in payments on its account, plaintiff sued both Kapco Communications and Ken Rubel d/b/a Kapco Communications alleging breach of contract and seeking damages in the amount of $11,597.24. Plaintiff filed suit against both defendants due to its confusion regarding responsibility for the account.

In its complaint, plaintiff alleged that $11,597.24 was due and owing. After the complaint was filed, plaintiff’s counsel learned that payments made by Kapco in April 1983 had been inadvertently overlooked in arriving at the above figure. In a letter dated July 27, 1983, plaintiff’s counsel informed defense counsel that the amount alleged as due and owing would be reduced to $6,503.96 to reflect the April 1983 payments, but that figure would be increased to account for additional damages not included in the complaint. These additional damages included: $2,530.94 for unused materials allocated to Kapco’s outstanding purchase orders; $3,935.07 for efforts expended securing Underwriters Laboratories, Inc.’s, approval of the product; and $1,200 for tooling and fabrication charges incurred in the production of the battery chargers sold to defendant. When defendant failed to respond to either the complaint or the July 27 letter, plaintiff moved for entry of a default judgment and for an increase in damages to include the additional damages, resulting in a total sum due and owing of $14,169.96.

Defendant moved to dismiss the complaint on the ground that he was an improper party. The trial court granted the motion. On September 15, an order was entered on the motion to dismiss granting plaintiff leave to refile. Subsequent to the dismissal of the instant litigation, plaintiff did file a new action against K. L. Rubel, Ltd., in the amount of $14,169.96. A second amended complaint reduced that figure to $6,503.96.

On October 17, 1983, defendant moved for an award of expenses and attorney fees, asserting that plaintiff’s allegations were untrue and made without reasonable cause. Defendant based his motion on (1) plaintiff’s claim that defendant owed $11,597.24 when its own records showed this to be untrue; (2) plaintiff’s suit against defendant Rubel personally when it knowingly dealt with a corporation; and (3) plaintiff’s motion to increase the damages to which defendant contended plaintiff was not' entitled. After the hearing, the trial court found that these allegations were untrue and made without reasonable cause. Defendant requested $4,201.25 in actual costs and attorney fees. Judgment was granted for defendant, but because the court was of the opinion that some of the time spent in this lawsuit would be useful in a subsequent suit, it awarded defendant only $1,297.40. Plaintiff appeals from the trial court’s order, and defendant cross-appeals on the trial court’s reduction of attorney fees.

Opinion

Plaintiff’s first contention on appeal is that the trial court erred in finding that plaintiff knew it was dealing with K. L. Rubel, Ltd., and that plaintiff’s allegations seeking recovery from defendant Rubel individually were untrue and made without reasonable cause.

Section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611) provides:

“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.”

The purpose of section 2 — 611 is to penalize a litigant who pleads frivolous or false matters or brings suit without basis in law whereby another party shoulders the burden of expending money for an attorney to defend against an untenable suit. (In re Estate of Palm (1973), 11 Ill. App. 3d 24, 28, 295 N.E.2d 580.) Because the statute is penal in nature, it may be invoked only in cases falling strictly within its terms. (Fewer v. Grant (1982), 111 Ill. App. 3d 747, 750, 444 N.E.2d 628.) When the allegations in question are proved to be both untrue and made without reasonable cause, allowance of attorney fees is proper. (Third Establishment, Inc. v. 1931 North Park Apartments (1981), 93 Ill. App. 3d 234, 243, 417 N.E.2d 167.) The burden of proving these two elements rests with the party seeking relief. (Demos v. Ericson (1982), 104 Ill. App. 3d 403, 405, 432 N.E.2d 1035.) Allowance of fees and costs is discretionary with the trial court and will not be disturbed on review absent a clear abuse of discretion. Whirlpool Corp. v. Bank of Naperville (1981), 97 Ill. App. 3d 139, 144, 421 N.E.2d 1078.

Plaintiff contends that the trial court erred in charging plaintiff with the knowledge that Kapco was an assumed name of the corporation K. L. Rubel, Ltd., and not a name under which defendant personally conducted business. It argues that this finding was erroneous because at the time that defendant allegedly filed the assumed name of Kapco, it was contrary to public policy for a corporation to conduct business under any name other than the corporate name registered with the office of the Secretary of State.

Defendant argues that plaintiff knew it had dealt with K. L. Rubel, Ltd., because defendant told Sears that his company represented a corporation and because in 1982 it provided business cards indicating that Kapco was a division of K. L. Rubel, Ltd. Additionally, in February 1983 a letter was sent to plaintiff stating that K. L. Rubel, Ltd., and Kapco were no longer in existence and that Kapco, Inc., was the current corporate name.

In 1978, the year K. L. Rubel, Ltd., allegedly filed its assumed name, a corporation had no legal right to use any name other than the name under which it was organized, and use by a corporation of a name different from its legal corporate name was against the public policy of the State. (Anzalone v. Durchslag (1971), 1 Ill. App. 3d 125, 128, 273 N.E.2d 752.) We agree that the purported assumed name filing was not allowed under the law in effect at that time and, even if made, of which there is no evidence, could not have served as legal notice to plaintiff that Kapco was a division of K. L. Rubel, Ltd. Defendant’s argument is unpersuasive because in addition to revealing that neither K. L. Rubel, Ltd., nor Kapco was in existence, its February 1983 letter to Sears also stated that Kapco, Inc., was the new corporate name. That name change, however, was never made, because defendant failed to file the proper documents with the office of the Secretary of State.

Plaintiff further posits that a legislative amendment enacted subsequent to the alleged assumed name filing in 1978 permits a corporation to use an assumed name. (Ill. Rev. Stat. 1981, ch. 32, par. 157.9a.) Defendant, however, failed to make the requisite statutory assumed name filing pursuant to this amendment which would have served as notice to the plaintiff of the corporation’s proper name.

The later amendment to the Act permits a corporation to elect to adopt an assumed name provided certain procedures are followed. That section provides:

“A corporation may elect to adopt an assumed name that is not the same as, or deceptively similar to, the corporate name or assumed name of any other domestic corporation existing under the laws of this State or of any foreign corporation authorized to transact business in this State, or the same as, or deceptively similar to, any name registered or reserved under the provisions of this Act; ***.
Such election shall be made by filing with the Secretary of State an application executed by an officer of the corporation, pursuant to a resolution adopted by the corporation, setting forth such assumed name and paying to the Secretary of State the filing fee prescribed in this Act.” (Ill. Rev. Stat. 1981, ch. 32, par. 157.9a.)

Because these procedures were not followed, the use of the name Kapco served neither to establish Kapco as a legal entity nor to inform creditors that Kapco and K. L. Rubel, Ltd., were the same corporation.

Because K. L. Rubel, Ltd., failed to comply with the statutory requirements for adopting an assumed name, the corporate name is the name under which it was required to conduct business. However, “a corporation may use any divisional designation or trade name without complying with the requirements of this Act, provided the corporation also clearly discloses its corporate name.” (Ill. Rev. Stat. 1981, ch. 32, par. 157.9.) In the instant case, the proper corporate identity was never clearly disclosed to the plaintiff. The purchase orders identified Kapco as the buyer without any further designation of Kapco as a division of K. L. Rubel, Ltd. Invoices sent were apparently received at Kapco, and checks drawn on the “Kapco Communications’ ’ account were received in payment of these invoices. The checks carried the defendant’s signature but bore no designation that would indicate he was signing in any official capacity. In its letter to the plaintiff, defendant states that neither K. L. Rubel, Ltd., nor Kapco were in existence and that the new corporate name was Kapco, Inc. Because no filing of the new name was ever made with the proper State office, the letter did not constitute a clear disclosure of the purchaser’s name. We find that the record does not support a finding that plaintiff knew that K. L. Rubel, Ltd., was in fact the proper party and that the allegations against defendant Rubel individually were untrue and made without reasonable cause. Accordingly, the finding was against the manifest weight of the evidence.

Secondly, plaintiff contends that the trial court erred in finding that the allegation claiming additional damages was untrue and made without reasonable cause and that such a finding was improper prior to a trial on the merits. Specifically, plaintiff argues that its claim for additional damages, which was part of its motion for default judgment, was never considered by the trial court and, therefore, was not properly before the trial court at the hearing on attorney fees.

The record reveals that plaintiff’s position is correct. In its original complaint, plaintiff did not seek the additional damages. Plaintiff’s later motion for default judgment sought additional damages, but this motion was never before the trial court, because, in the interim, plaintiff’s original action against defendant was dismissed pursuant to his motion. In the absence of the trial court’s consideration of the issue of additional damages, it should never have been considered on the motion for attorney fees. Therefore, the trial court erred in ruling that these allegations were untrue and made without reasonable cause.

We turn to plaintiff’s third and last contention that defendant failed to show that any actual expenses were incurred as a result of plaintiff’s allegations as required by section 2 — 611. (See Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611.) As discussed earlier, we find that plaintiff’s allegations against defendant Rubel personally were not untrue and were not made without reasonable cause. Because section 2 — 611 applies only where allegations are found to be untrue and made without reasonable cause, we need not discuss the issue of whether any actual expenses were incurred in defending against this allegation.

With respect to plaintiff’s allegations that the sum due and owing was $11,597.24, plaintiff maintains that it made a mistake in arriving at this figure by using a computerized recapitulation of the account which it later realized was not then current. Defendant argues that plaintiff knew this figure to be false and that he incurred expenses defending against this untrue allegation.

We believe this allegation falls into the category of an honest mistake which does not support an award of attorney fees. Confusion or an honest mistake should not be the grounds for a finding of bad faith. (Dudanas v. Plate (1976), 44 Ill. App. 3d 901, 911, 358 N.E.2d 1171.) It is assumed that, in filing pleadings, attorneys have due regard for their duties and responsibilities as officers of the court and are permitted to exercise broad discretion, based on honest judgment, from the facts presented to them. (Demos v. Ericson (1982), 104 Ill. App. 3d 403, 405, 432 N.E.2d 1035; Dudanas v. Plate (1976), 44 Ill. App. 3d 901, 911, 358 N.E.2d 1171.) Our conclusion that plaintiff made an honest mistake is further supported by the fact that after plaintiff’s counsel discovered the mistake, he informed defense counsel in a letter dated July 27 that the amount was incorrect and would be corrected. After the dismissal of the original suit, plaintiff refiled its claim crediting defendant with the April 1983 payments and seeking damages of $14,169.96. The complaint was later amended, claiming only $6,503.96 in damages, the amount due minus the additional damages. Further, we believe that defendant did not incur any actual expenses defending against the statement that $11,597.24 was due and owing, because that statement was not mentioned as a basis for his motion to dismiss. Rather, the only basis for that motion was that defendant was an improper party. Accordingly, even if we accept defendant’s position that the allegation is untrue and made without reasonable cause, defendant failed to show that any actual expenses were incurred in defending against this allegation.

Regarding plaintiff’s allegation that additional damages were due, we previously stated that this issue was never considered by the trial court and, therefore, could not possibly have been the basis for incurring any expenses or attorney fees. We find that defendant did not show that any money was expended defending against these allegations.

Defendant cross-appeals, contending that the trial court erred in reducing the award of expenses and attorney fees because a portion of the trial time might be useful in a subsequent lawsuit. Because we conclude that the award of attorney fees and costs was an abuse of discretion, we need not address the issue of the propriety of the amount awarded.

For the foregoing reasons, we reverse the order of the trial court granting defendant’s motion for expenses and attorney fees.

Reversed.

LORENZ and PINCHAM, JJ., concur.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEONARD WEIR, Defendant-Appellant.
    Third District
    No. 3—84—0261
    Opinion filed March 6, 1985.

      Frederick F. Cohn, of Chicago, for appellant.
    Larry Vandersnick, State’s Attorney, of Cambridge (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Leonard Weir, appeals his convictions for aggravated assault and unlawful use of weapons following a bench trial in the circuit court of Henry County.

The sole issue presented for review concerns whether the defendant was denied the effective assistance of counsel. Specifically, defendant alleges that his attorney failed to use the trial proceeding to contest the State’s attempt to prove him guilty, but merely attempted to present evidence of defendant’s intoxication as a mitigating circumstance instead of as an affirmative defense to the charges levied against him.

The evidence at trial indicated that on October 24, 1983, the defendant was near the garage of Steven Van Wynesberg, and that the defendant threatened to kill himself, that a police officer approached the scene and observed the defendant walking tó his vehicle with a sawed-off shotgun and that the defendant placed the weapon in his car. The defendant returned to the Van Wynesberg residence carrying a pistol, that he again threatened to kill himself, that he fired the weapon several times into a dirt pile, shot himself in the stomach, and also fired a number of shots in the vicinity of several police officers who had arrived at the scene. Finally, the defendant refused to surrender until the police promised him in writing that he would be taken to the hospital and treated instead of being arrested.

Several police officers who had been present at the scene of the shooting testified for the prosecution that it was apparent that the defendant was intoxicated, or had been drinking, while other officers contended that in their opinion the defendant was nevertheless able to understand what was going on.

The defendant’s testimony was to the effect that he was so intoxicated that he had no recollection, or at most only a fleeting recollection, of what had transpired on the date in question. Specifically, the defendant recalled drinking and then awakening in the hospital where he had been taken due to a self-inflicted gunshot wound.

The two charges brought against the defendant each required that the offender act “knowingly” or with knowledge. Specifically, the four-count information alleged that the defendant had committed the offenses of aggravated assault (Ill. Rev. Stat. 1983, ch. 38, par. 12— 2(a)(6), “[k]nows the individual assaulted to be a peace officer,” par. 12 — 2(a)(1), “knowingly pointed a deadly weapon ***”); and unlawful use of weapons (Ill. Rev. Stat. 1983, ch. 38, par. 24 — 1(a)(7), “knowingly *** carries or possesses a sawed-off shotgun,” par. 24 — 1(a)(4), “knowingly carries concealed on his person except when on his land *** any firearm ***.”).

Knowledge is therefore an essential element for each offense. (People v. Infelise (1975), 32 Ill. App. 3d 224, 336 N.E.2d 559; People v. Lofthouse (1974), 18 Ill. App. 3d 378, 309 N.E.2d 608.) The activity, to be an offense, requires the defendant’s knowledge of what he is doing; therefore, each is a specific-intent crime. See People v. Hayes (1976), 37 Ill. App. 3d 772, 347 N.E.2d 327.

The affirmative defense of intoxication (Ill. Rev. Stat. 1983, ch. 38, par. 6 — 3) provides that a person who is in an intoxicated condition is criminally responsible for his conduct unless the condition negates the existence of the requisite mental state which is an element of the offense, in this case knowledge or acting knowingly. The statute further provides that if the intoxicated condition is involuntarily produced and deprives the defendant of the substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, the defense of intoxication is available. Once a defendant raises an affirmative defense by presenting some evidence thereon, the State must then prove the defendant guilty as to that issue, too. Ill. Rev. Stat. 1983, ch. 38, par. 3 — 2.

Despite the foregoing provisions, defense counsel in the case at bar decided that the defendant’s intoxication could not be used as a defense, but wrongfully believed that it could only be used as a factor in mitigation.

Counsel for the defense filed a supplemental answer to discovery which stated:

“1.) Affirmative defense of Intoxication as a mitigating factor. Defendant does not claim that it deprived him of substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
2.) In the event Defendant is convicted of said offense, Defendant intends to enter mitigating testimony of his phychological [sic] state. (Generally). Witness: Dr. Paul Hauck, 1800-34d Avenue, Rock Island, IL 61201.”

The error was further emphasized by the remarks of both defense counsel and the prosecutor in closing argument. The prosecutor stated:

“Now, on the receipt of a supplemental answer to my pre-trial order, and I think that’s a matter of record here, where the only defense that is being alleged here is one used as a mitigating factor. It says here, that the affirmative defense of intoxication is a mitigating factor. Defendant does not claim that it deprived him of substantial capacity to distinguish between criminal conduct or conformance of his conduct within the requirements of law.
* * *
I just want to make sure that so I don’t have to argue that you’re not alleging voluntary intoxication as an affirmative defense, just saying use it in mitigation?”

Defense counsel made the following statement in final argument:

“No question whatsoever. I certainly feel this is a mitigating factor in any determination by the Court. We’re dealing with general intent crimes rather than specific intent. Consequently, I’m aware of the differentiation there, your Honor. However, I would request the Court to take that into consideration.”

The action of defense counsel in attempting to use clear evidence of the defendant’s intoxication only in mitigation amounted to only the formality of a trial since he had already in effect pleaded his client guilty, without his knowledge or consent. (People v. Stepkeny (1974), 56 Ill. 2d 237, 306 N.E.2d 872.) By merely going through the motions of an adversary proceeding, counsel for the defendant ceased to be an advocate for the accused, and defendant’s right to the presumption of innocence was compromised to the point that the result was a foregone conclusion.

No matter how strong the State’s evidence may be, counsel for the defendant must (1) either advise his client to plead guilty and obtain his knowing and voluntary acquiescence in such a plea, (2) be a vigorous advocate in his client’s defense, or (3) withdraw from the case. Nothing more is required of a lawyer, and nothing less is owed to a defendant.

For the foregoing reasons, the judgment and sentence of the circuit court of Henry County is reversed and the cause remanded with directions that the defendant be given a new trial.

Reversed and remanded.

HEIPLE, P.J., and STOUDER, J., concur.


author:
JUSTICE HARRISON
      JUSTICE WELCH,

text:
    CHARLES LUKAS et al., Plaintiffs-Appellants, v. ROBERT W. LIGHTFOOT et al., Defendants-Appellees.
    Fifth District
    No. 5—83—0783
    Opinion filed February 19, 1985.

      WELCH, J., dissenting.
    Robert P. Schulhof & Associates, of Carbondale, for appellants.
    Tom D. Adams & Associates, Ltd., of Columbia, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Charles and Mary Lukas, plaintiffs, appeal from a judgment of the circuit court of Jackson County entered in favor of Robert and Margaret Lightfoot, defendants, following a bench trial on plaintiffs’ three-count complaint. The complaint sought, among other things, rescission or reformation of a contract involving the sale of plaintiffs’ farm to defendants. For the reasons which follow, we affirm the judgment of the circuit court.

The contract at issue is dated January 3, 1978, and signed by all four parties. It provides, in pertinent part:

“Charles and Mary Lukas, hereafter known as sellers, agree to sell to Robert and Margaret Lightfoot, hereafter known as purchasers, 620 acres more or less of improved farm land in section 10 Somerset township, Jackson County, Illinois, known as Richwood Farm.
The purchase price is $400,000.00 (Four Hundred Thousand Dollars), with 3% of the purchase price down and 3% of purchase price paid annually, with 5% interest per annum on the balance [.] $12,000.00 received today, receipt hereby acknowledged.
Title will be conveyed by warranty deed free of all liens and encumbrances, after payemnt [sic] in full is received. Prepayment can be made without penalty.
The sellers agree to take in trade improved farm land on old Baumgartner Road, St. Louis County, at the fair appraised market value and apply the value to the balance due on this contract. If the value of the St. Louis County tract exceeds the balance due on this contract, the excess will be paid to the purchasers in cash or other property.”

The dispute between the parties arises from the last paragraph; plaintiffs contend that defendants are obligated to give them the Baumgartner Road property in trade, while defendants assert that they are not required to trade the Baumgartner Road property, but may do so at their election. At the beginning of the bench trial of this cause, the court examined the contract and ruled that it was not ambiguous. The court subsequently clarified its ruling, explaining:

“This case puts before this Court one issue and that is whether or not the trade is mandatory at this time. I have said in my ruling on the question of evidence that the intent as to the trade, nothing else, had to be determined from the four corners of the document and the facts that existed at the time this agreement was signed; that I was not going to hear intrinsic [sic] evidence as to the intent of the parties.”

Following this ruling, the court continued to hear extensive testimony from plaintiffs’ witnesses. Plaintiffs testified that they thought an exchange of the properties between the parties was required, while defendant Robert Lightfoot, called as an adverse witness, testified that defendants did not agree to a mandatory trade of the Baumgartner Road property. At the close of plaintiffs’ case, the court granted defendants’ motion for judgment.

On appeal, plaintiffs contend that the court committed reversible error in excluding certain parol evidence. Upon careful examination of the record, however, wé are compelled to reject this contention. Initially, we note that, in an action based upon a contract, it is for the trial court to decide as a matter of law whether or not there exists an ambiguity in the written instrument. (Tondre v. Pontiac School District No. 105 (1975), 33 Ill. App. 3d 838, 842, 342 N.E.2d 290.) Here, examination of the contract between the parties fully supports the trial court’s conclusion that the contract was unambiguous, as the language of the contract does not support plaintiffs’ position that defendants were obligated to trade their Baumgartner Road property to plaintiffs. While plaintiffs point out that their complaint sought reformation or rescission of the contract, analysis of the law in these areas also supports the trial court’s ruling in favor of defendants. The rules in respect to the reformation of written instruments are well settled:

“A written instrument may be reformed to conform with the intention of the parties upon proof by clear and convincing evidence of a mutual mistake of fact. [Citations.] A mutual mistake exists when the contract has been written in terms which violate the understanding of both parties. [Citation.] The instrument may also be reformed upon proof of a mistake by one party to the contract when the other party knows of the mistake and fails to inform the other party or conceals the truth from him. [Citations.]” Biren v. Kluver (1976), 35 Ill. App. 3d 692, 696, 342 N.E.2d 325.

Here, while plaintiffs claim that the court, by excluding parol evidence relating “to the intent of the parties,” committed reversible error, the record contains more than sufficient evidence to establish that the reformation count of plaintiffs’ complaint is without merit. The testimony of plaintiffs and defendant Robert Lightfoot clearly shows that there was no mutual mistake regarding the contract, but that the parties simply took divergent views of what the contract language meant. Moreover, nothing of record tends to show that defendants knew of a mistake in the contract and concealed the fact of that mistake from plaintiffs. We note also that, while plaintiffs claim that they were not given the opportunity to prove their case, the record reveals that plaintiffs made no offers of proof regarding what the substance of the allegedly excluded testimony would be. An offer of proof is necessary to preserve a question for review under the circumstances of the type present here (Simon v. Plotkin (1977), 50 Ill. App. 3d 603, 607, 365 N.E.2d 1022), and, in the absence of such an offer, we are unable to say that reversible error occurred in this case.

Finally, we are compelled to conclude that the court also ruled correctly in entering a verdict for defendants on the rescission count of plaintiffs’ complaint. While rescission is an appropriate remedy when there has been some fraud in the making of the contract (Pinelli v. Alpine Development Corp. (1979), 70 Ill. App. 3d 980, 1000, 388 N.E.2d 943), there was no showing of any such fraud here, and no offer of proof by plaintiffs which would tend to establish that any such fraud existed.

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

Affirmed.

KASSERMAN, J., concurring.

JUSTICE WELCH,

dissenting:

I would reverse the judgment of the circuit court and remand this cause for further proceedings. Therefore, I respectfully dissent.

As the majority of this court observes, it is for the trial court to decide as a matter of law whether or not there exists an ambiguity in the written instrument. This court determines the correctness of a trial court’s ruling on a question of law, independently of the judgment of the trial court. (Lepkowski v. Laukemper (1943), 317 Ill. App. 304, 314, 45 N.E.2d 979, 983.) A contract is ambiguous when the language used is reasonably susceptible to more than one meaning. Susmano v. Associated Internists of Chicago, Ltd. (1981), 97 Ill. App. 3d 215, 219, 422 N.E.2d 879, 882.

I think it is a reasonable interpretation of this contract that the parties agreed to trade real estate for real estate. In support of that interpretation, I note that certain essential terms for sale of the St. Louis County property to the Lukases are expressed in the contract. The property is specifically identified. Its price is stated as its “fair appraised market value.” “Financing” consists of set-off against the Jackson County property. Why are these terms in the contract? The proper assumption is that the parties inserted each provision in the contract deliberately and for a purpose. (State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 1065, 419 N.E.2d 601, 603.) Further, if the only reasonable interpretation of the document in question is that the Lightfoots were free to opt to trade or not to trade the St. Louis County property, why is there no “option” or “election” language among its terms? Considering, as well, that the document in question was drafted by laymen (cf. Weiland Tool & Manufacturing Co. v. Whitney (1969), 44 Ill. 2d 105, 116, 251 N.E.2d 242, 248, observing that an attorney should be presumed better able than a layman to express his intentions in plain and concise English), I believe that the trial court should have heard extrinsic evidence regarding whether at the time the contract was executed the parties intended a trade rather than a mere option.

Finally, the parties dispute who drafted the contract, so we need not indulge in the secondary rule of construction that ambiguities are to be construed against the draftsman. See Weiland Tool & Manufacturing Co. v. Whitney (1969), 44 Ill. 2d 105, 251 N.E.2d 242.

For the foregoing reasons, I conclude that the contract is ambiguous on the matter in question and that the Lukases are entitled to their day in court on the issue of the intention of the parties at the time of execution. I would reverse and remand, and I therefore dissent.


author: JUSTICE SCHNAKE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL L. SCOTTI, Defendant-Appellee.
    Second District
    No. 84—0019
    Opinion filed March 12, 1985.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner and Diana Fischer Woods, Assistant State’s Attorneys, and Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Thomas W. Jordan, of Chicago, for appellee.
   JUSTICE SCHNAKE

delivered the opinion of the court:

In this case, the State appeals the order of the circuit court of Du Page County dismissing the charges of theft and burglary-to a motor vehicle against the defendant, Michael L. Scotti, for violation of his right to a speedy trial. The State acknowledges that more than 160 days have expired since the defendant requested a speedy trial, but it asserts that a significant portion of the delay was attributable to the defendant.

Charges against the defendant were initiated by complaint on March 23, 1983, and a preliminary hearing was held May 12. The trial court found no probable cause regarding the charge of theft, but did find probable cause concerning the charge of burglary to a motor vehicle. The defendant filed a written demand for speedy trial that same date, and the cause was continued to May 23 for arraignment. Defense counsel was absent from court on May 23 due to the hospitalization of a family member and requested a continuance. The court postponed the arraignment to June 8, 1983.

On June 8, defense counsel was again not present, but since the State was not ready to file an information, it moved for a continuance to June 20. The defendant was arraigned on June 20, and the court set August 1 for additional motions and August 16 for trial. When the case was called on August 16, defense counsel was again not present, and the court, noting that it was already engaged in a jury trial, set a new trial date of November 1. When asked by the assistant State’s Attorney if that was on the court’s motion, the court responded that it was.

The defendant, having been incarcerated on an unrelated burglary charge, was not “writted in” for trial on November 1, and the case was continued to November 14, 1983. On that date the defendant was present with counsel, but the assistant State’s Attorney assigned to the case was involved elsewhere in trial. An alternate assistant State’s Attorney did note that a speedy trial demand was on file and defense counsel, after reviewing the file, observed that the speedy trial term had expired 10 days earlier on November 4. The defendant thereupon moved for dismissal on the grounds that he had been denied a speedy trial.

At the hearing on the defendant’s motion to dismiss, defense counsel stated that he had arrived 20 minutes late on August 16, and had notified the State at that time that he was ready to proceed. The State, however, told him that the complainant was not present and had not been subpoenaed. The court then continued the hearing to November 21, 1983, and ordered a transcript of the events of August 16.

On November 21, the defendant was not present because the Department of Corrections had inadvertently failed to respect the court’s writ and the hearing was continued to December 6, 1983. On December 6, the matter was heard and the defendant argued that the record of August 16 spoke for itself where the court stated:

“THE COURT: Are you represented by an attorney?
DEFENDANT SCOTTI: Yes.
THE COURT: His name?
DEFENDANT SCOTTI: Tom Jordan.
THE COURT: Have you talked to him this morning?
DEFENDANT SCOTTI: Not this morning, no.
THE COURT: Your case is set for jury trial this morning.
However, the Court is engaged in a jury trial, and your case will not proceed to trial, so I’ll give you a new date, and you can inform your attorney as soon as possible.
■I’ll set the matter for November 1st at 9:30 in Courtroom 304.
MR. FISHER: That’s on the Court’s motion?
THE COURT: Yes.”

The State responded that since defense counsel was not present on August 16 when the case was called, the delay was attributable to the defendant. However, the court thereupon granted the defendant’s motion and dismissed the charges.

In the instant case, the State acknowledges its obligation to bring the defendant to trial within a term of 160 days under section 103— 5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 103 — 5(b)). It also concedes that the delay between June 8 and June 20 is attributable to it notwithstanding the absence of defense counsel on the former date, because the assistant State’s Attorney admitted that he was not prepared to proceed. Further, the State does not contest responsibility for the 13 days of delay from November 1 to November 14. The defendant, in turn, admits that the 16-day delay from May 23 to June 8, 1983, occasioned by the absence of defense counsel, was delay attributable to the accused and should not be counted in computing the date upon which the 160-day term expired. The parties disagree, however, as to which side bears responsibility for the delay of the trial from August 16, 1983, to November 1. This is the issue before this court.

It is clear that when defense counsel fails to appear in court at the appointed time, his absence causes a delay attributable to the defendant. (People v. Hairston (1970), 46 Ill. 2d 348, cert, denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658; People v. Logan (1983), 117 Ill. App. 3d 753; People v. Brown (1981), 94 Ill. App. 3d 609, aff’d (1982), 92 Ill. 2d 248; People v. Spurlark (1979), 74 Ill. App. 3d 43.) Where a continuance of the proceedings is necessitated by the absence of counsel, it is immaterial that the continuance itself is obtained on motion of the court or the State. (People v. Logan (1983), 117 Ill. App. 3d 753; People v. Brown (1981), 94 Ill. App. 3d 609; People v. Boyce (1977), 51 Ill. App. 3d 549.) We conclude, therefore, that despite the court’s statement that the continuance was granted on its motion, “the defendant’s acts in fact caused or contributed to the delay” (People v. Fosdick (1967), 36 Ill. 2d 524, 528-29), and tolled the statutory 160-day statutory period.

The defendant argues, however, that regardless of defense counsel’s tardiness, the State was not ready to proceed on August 16 because the complainant was not present. A similar contention, however, was rejected in Boyce, where the court stated:

“Even assuming, arguendo, that the State was not in a position to proceed, the delay would nonetheless be attributable to the defendant. Where there are two reasons for delay, one due to the State, and the other due to the defense, the fact that the delay was partly attributable to the defendant is sufficient to toll the statutory term. (People v. Partee (1974), 17 Ill. App. 3d 166, 308 N.E.2d 18.)” (People v. Boyce (1977), 51 Ill. App. 3d 549, 554.)

Further, People v. Beyah (1977), 67 Ill. 2d 423, and People v. Wyatt (1962), 24 Ill. 2d 151, relied upon by defendant, are distinguishable. In both of those cases, the defendant was discharged on account of delay resulting from a court-ordered continuance, but in neither had the continuance been necessitated by the failure of defense counsel to appear for trial.

Since we hold that the 77-day delay between August 16 and November 1, 1983, was attributable to the defendant, it was error for the trial court to dismiss the charges against the defendant on December 6, 1983. The order of the circuit court of Du Page County is therefore reversed and the cause is remanded.

Reversed and remanded.

NASH, P.J., and REINHARD, J„ concur.


author: PRESIDING JUSTICE NASH

text:
    THE PEOPLE ex rel. NEIL F. HARTIGAN, Attorney General, Plaintiff-Appellant, v. JOHN STIANOS et al., Defendants-Appellees.
    Second District
    No. 84—772
    Opinion filed March 6, 1985.
    Neil F. Hartigan, Attorney General, of Springfield (James C. Spoeri and Lori R. Lefstein, Assistant Attorneys General, of Chicago, of counsel), for the People.
    No brief filed for appellees.
   PRESIDING JUSTICE NASH

delivered the opinion of the court:

Plaintiff, the Illinois Attorney General, appeals from an order of the circuit court which denied his motion for issuance of a preliminary injunction against defendants, John Stianos and Theodore Stamayannos, d/b/a J & T Mini Mart, to prevent them from charging to consumers sales tax in excess of the amount authorized by law.

Defendants have not responded with a brief on appeal, and we will consider the issues presented under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 131-33, 345 N.E.2d 493.

The complaint for injunctive and other relief was brought against defendants by the Illinois Attorney General pursuant to the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1983, ch. 1211/2, par. 261 et seq.) (Consumer Fraud Act). It alleges, inter alia, that defendants were engaged in the sale of food for human consumption and of nonprescription drugs for which the applicable sales tax rate which may be charged in Lake County is 1.25%; that on April 24, 1984, an investigator for the Attorney General purchased Bayer Aspirin, a nonprescriptive drug, from defendants for $1.29 and was charged 8 cents sales tax, which is a rate of 6.20% for the purchase; that on June 11, 1984, an investigator purchased Vicks Cough Syrup, a nonprescriptive drug, from defendants for $2.99 and was charged 18 cents for sales tax, which is a rate of 6.02%; and, that on July 5, 1984, the investigator purchased Anacin, a nonprescriptive drug, from defendants for $2.99 and was charged 18 cents for sales tax, a rate of 6.02% for the purchase.

The complaint further alleged that defendants’ conduct constituted a pattern of deceptive acts or practices in the conduct of trade or commerce in violation of section 2 of the Consumer Fraud Act (Ill. Rev. Stat. 1983, ch. 1211/2, par. 262) as the sales tax overcharges offend public policy and cause substantial injury to consumers. The complaint sought preliminary and permanent injunction against the continued unlawful practice, restitution to all consumers affected by it and assessment of a civil penalty against defendants for violation of the Consumer Fraud Act.

A temporary restraining order was issued on motion of the Attorney General on July 12, 1984, and the cause set for hearing for a preliminary injunction on July 18. Defendants moved to dismiss the complaint, alleging it failed to state a cause of action and that the conduct complained of, if true, was not prohibited by the Consumer Fraud Act. The trial court granted defendant’s motion, in part, by striking that portion of the prayer for relief in the complaint which sought civil penalties. Defendant then answered admitting they were sellers of nonprescriptive drugs and that Bayer Aspirin and Anacin were in that category, but denied Vicks Cough Syrup was a nonprescriptive drug or that defendants had violated the Consumer Fraud Act.

- At the hearing of the motion for preliminary injunction held July 18, 1984, the Attorney General’s investigator testified she had been assigned to make purchases of nonprescriptive drugs from retail stores to determine whether they were charging the correct amount of sales tax to consumers. She participated in investigations in Cook, Lake and McHenry counties, including defendants’ store in Waukegan. The witness testified she made the purchases alleged in the complaint from defendants’ store on those three occasions and was charged with the excessive sales tax rates alleged on each occasion. She stated that she did not need a prescription for any of these purchases nor did she identify herself as an investigator or inform the cashiers she had been overcharged.

At the close of plaintiff’s case, defendants moved for a directed finding which the trial court granted on the grounds (1) plaintiff had failed to prove defendants had engaged in the complained-of conduct with intent to deceive; (2) that the conduct was de minimis; and, (3) that plaintiff failed to show a likelihood of success on the merits. The court denied the preliminary injunction and dissolved the temporary restraining order.

The Attorney General filed a notice of interlocutory appeal from the order refusing the injunction (87 Ill. 2d R. 307(a)(1)). He also sought certification from the trial court for permissive appeal under Supreme Court Rule 308(a) (87 Ill. 2d R. 308(a)) on the grounds that its order dismissing the portion of plaintiff’s complaint in which monetary penalties were sought raised a disputable question of law for which an immediate appeal would advance termination of the litigation; certification was denied by the trial court, however, and that issue is not before us on this appeal.

Plaintiff contends first that the finding for defendants at the close of plaintiff’s case in the hearing for preliminary injunction was against the manifest weight of the evidence.

A trial court must apply a two-step analysis when ruling upon a motion for judgment in favor of defendant at the close of plaintiff’s case in a bench trial (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1110). It must first determine, as a matter of law, if plaintiff has presented a prima facie case, i.e., whether plaintiff offered some evidence on each essential element of his cause of action; if not, judgment should be entered for defendant. If, however, plaintiff has made out a prima facie ease, the trial court must then weigh the evidence and if, after having done so, sufficient evidence still remains to establish plaintiffs prima facie case, the court should deny defendants’ motion and proceed with the trial. Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154-55, 407 N.E.2d 43.

It appears in the present case that the trial court determined plaintiff failed, as a matter of law, to present sufficient evidence to establish prima facie that the preliminary injunction should issue. The court found plaintiff failed to show that defendants acted with intent to deceive; defendants’ conduct was de minimis; and plaintiff failed to establish a likelihood of success on the merits of the action. We will consider whether the findings made by the trial court require the conclusion that the remedy sought is without merit as a matter of law.

Section 7 of the Consumer Fraud and Deceptive Business Practices Act provides:

“Whenever the Attorney General has reason to believe that any person is using, has used, or is about to use any method, act or practice declared by Sections 2 through 20 of this Act to be unlawful, and that proceedings would be in the public interest, he or she may bring an action in the name of the People of the State against such person to restrain by preliminary or permanent injunction the use of such method, act or practice.” (Ill. Rev. Stat. 1983, ch. 1211/2, par. 267.)

Section 2 of the Act provides that certain generally described unfair and deceptive acts or practices in the conduct of trade or commerce are unlawful. (Ill. Rev. Stat. 1983, ch. 1211/2, par. 262; Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 284, 430 N.E.2d 1012.) In the present case, the Attorney General’s complaint alleged defendants were engaged in trade or commerce and had engaged in unfair or deceptive practices in doing so by charging consumers excessive sales tax not authorized by law. (See People ex rel. Fahner v. Hedrich (1982), 108 Ill. App. 3d 83, 438 N.E.2d 924; People ex rel. Fahner v. Walsh (1984), 122 Ill. App. 3d 481, 461 N.E.2d 78; People ex rel. Hartigan v. Maclean Hunter Publishing Corp. (1983), 119 Ill. App. 3d 1049, 457 N.E.2d 40.) Plaintiff also offered evidence in support of the complaint which established defendants had overcharged for sales tax on three occasions.

In granting defendants’ motion for a directed finding, the trial court found first that defendants had no intent to deceive when they charged excessive sums for sales tax. While it is difficult to understand the basis for that conclusion, as defendants have not testified, it has been held that an intent to deceive is not essential to a finding of unfair or deceptive conduct under section 2 of the Consumer Fraud Act. (Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, 494-95, 429 N.E.2d 448; American Buyers Club v. Honecker (1977), 46 Ill. App. 3d 252, 259, 361 N.E.2d 1370.) As this court recently noted, the center of focus in such matters is not on the intent of the selíer but, rather, on the effect that the unlawful conduct might have on the consumer. People ex rel. Fahner v. Walsh (1984), 122 Ill. App. 3d 481, 486, 461 N.E.2d 78, 82.

The same conclusion must necessarily be reached on consideration of the civil penalty provisions of section 7 of the Act. (111. Rev. Stat. 1983, ch. 121V2, par. 267, as amended.) The statute provides for a civil penalty not to exceed $50,000 against any person found by the court to have violated section 2 of the Act and, if the unlawful practice was done with intent to defraud, the court may impose a civil penalty up to that sum for each violation. It is clear that unfair or deceptive practices are unlawful under section 2 of the Consumer Fraud Act whether or not it was intended to deceive, and the trial court erred in finding to the contrary.

The trial court also found that defendants’ conduct was de minimis and that the Attorney General had not shown a likelihood of success on the merits, which suggests the court considered defendants’ conduct did not cause irreparable harm and injunction was not required.

Traditionally, the remedy of a preliminary injunction is granted only where plaintiff shows: (1) he has a clearly ascertainable right that needs protection; (2) he will suffer irreparable harm without the protection; (3) he has no adequate remedy at law; (4) he is likely to succeed on the merits; and, (5) he will suffer greater harm without the injunction than defendant will suffer if it is issued. (Illinois Consolidated Telephone Co. v. Aircall Communications, Inc. (1981), 101 Ill. App. 3d 767, 771, 428 N.E.2d 747; People ex rel. Fahner v. Steel Container Corp. (1981), 102 Ill. App. 3d 369, 372-73, 430 N.E.2d 68.) Where, however, an injunction is sought by a public official or body pursuant to express authorization of a statute, the requirements of the statute control rather than those traditional matters to which we have referred. People ex rel. Edgar v. Miller (1982), 110 Ill. App. 3d 264, 269, 441 N.E.2d 1328, leave to appeal denied (1983), 93 Ill. 2d 541; People ex rel. Carpentier v. Goers (1960), 20 Ill. 2d 272, 276, 170 N.E.2d 159; People v. Keeven (1979), 68 Ill. App. 3d 91, 96-97, 385 N.E.2d 804; City of Highland Park v. County of Cook (1975), 37 Ill. App. 3d 15, 20, 344 N.E.2d 665.

The principle underlying the willingness of the courts to issue statutory injunctions to public bodies to restrain violations of a statute is that harm to the public at large can be presumed from the statutory violation alone. (People v. Keeven (1979), 68 Ill. App. 3d 91, 96, 385 N.E.2d 804; Sadat v. American Motors Corp. (1983), 114 Ill. App. 3d 376, 380, 448 N.E.2d 900, affd (1984), 104 Ill. 2d 105, 470 N.E.2d 997.) In the present case, the Attorney General is specifically authorized by section 7 of the Consumer Fraud Act to seek to enjoin persons from engaging in unfair or deceptive business conduct. In Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 430 N.E.2d 1012, the court noted that:

“The Act is a regulatory and remedial enactment intended to curb a variety of fraudulent abuses and to provide a remedy to individuals injured by them. Its stated purpose, set forth in its preamble, is to protect Illinois Consumers, borrowers, and businessmen against fraud, unfair methods of competition, and other unfair and deceptive business practices. The Act is clearly within the class of remedial statutes which are designed to grant remedies for the protection of rights, introduce regulation conducive to the public good, or cure public evils.” 88 Ill. 2d 279, 288.

We conclude that the Attorney General was not required to show irreparable harm or an inadequate remedy at law, as would be the case if a private party sought equitable relief to protect private rights. Where the statute describes the requirements for a pleading, the Attorney General need only allege and prove what the statute requires in order to obtain the authorized injunctive relief. (People v. Keeven (1979), 68 Ill. App. 3d 91, 96, 385 N.E.2d 804.) To meet the requirements of section 2 of the Consumer Fraud Act (Ill. Rev. Stat. 1983, ch. 1211/2, par. 262), the Attorney General need only show that defendant is engaged in a trade or commerce and in unfair or deceptive acts or practices in the conduct of that trade or commerce. (People ex rel. Fahner v. Hedrich (1982), 108 Ill. App. 3d 83, 87, 438 N.E.2d 924; People ex rel. Hartigan v. Maclean Hunter Publishing Corp. (1983), 119 Ill. App. 3d 1049, 1056, 457 N.E.2d 480; People ex rel. Fahner v. Walsh (1984), 122 Ill. App. 3d 481, 484, 461 N.E.2d 78.) The trial court erred when it granted defendants’ motion at the close of plaintiff’s case on these grounds.

The material facts in this case do not appear to be in dispute. Defendants admit they are engaged in a trade or commerce, and it is apparent from the evidence that in the separate purchases made by the investigator over a several week period, defendants overcharged for sales tax by about 4.75% on each purchase. However, defendants denied in their answer that such conduct violated the Consumer Fraud Act, and the trial court may have considered that charging excessive sales tax to consumers was not unfair or deceptive under the terms of the Act.

The Act prohibits “unfair or deceptive acts or practices *** in the conduct of any trade or commerce ***.” (Ill. Rev. Stat. 1983, ch. 1211/2, par. 262.) Our supreme court has recognized these terms are not capable of precise definition, and whether a given practice is unfair or deceptive must be determined on a case-by-case basis. Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 290, 420 N.E.2d 1012; People ex rel. Fahner v. Testa (1983), 112 Ill. App. 3d 834, 837, 445 N.E.2d 1249.

Section 2 of the Act provides that in determining whether a practice is unlawful as unfair or deceptive, consideration is to be given to the interpretations of the Federal Trade Commission and the Federal courts under the similar Federal Trade Commission Act. In Federal Trade Com. v. Sperry & Hutchinson Co. (1972), 405 U.S. 233, 244-45, 31 L. Ed. 2d 170, 179-80, 92 S. Ct. 898, 905-06, standards employed to determine whether a practice was deceptive or unfair included whether the practice offends public policy as it has been established by statute or otherwise; whether it is immoral, unethical, oppressive or unscrupulous; and, whether it causes substantial injury to consumers or competitors. People ex rel. Fahner v. Hedrich (1982), 108 Ill. App. 3d 83, 89, 438 N.E.2d 924; People ex rel. Fahner v. Walsh (1984), 122 Ill. App. 3d 481, 484, 461 N.E.2d 78.

We conclude the practice described in this case is both deceptive and unfair as those terms are used in the Consumer Fraud Act. The sales tax rates which may be charged to consumers have been fixed by statute; the legislature set the tax rate at 1.25%, but the evidence here is that defendants collected an average of 4.75%. While the three sales upon which this case is premised reflect only a few cents in overcharges, it is apparent that similar overcharges, if permitted to continue, could aggregate very substantial losses and injury to the consuming public. It is also unfair to permit the extraction from the consumer of excessive sums under the guise it is a lawful tax. If, as defendants alleged in their answer, the excess sums collected were turned over to the State, defendants’ conduct remains unfair and deceptive to the consumers’ injury.

As earlier noted, it appears that the trial court granted defendants’ motion for a finding in their favor at the close of plaintiff’s case because, as a matter of law, it found plaintiff failed to present a prima facie case. There is no suggestion in the record that the trial court, whose duty it is to weigh plaintiff’s evidence, disbelieved any of the evidence upon which plaintiff’s rights depended. We therefore reverse and remand the cause with directions that the trial court deny defendants’ motion and proceed with plaintiff’s motion for preliminary injunction. Kokinis v. Kotrich (1980), 81 Ill. 2d 151,156, 407 N.E.2d 43.

Reversed and remanded with directions.

REINHARD and LINDBERG, JJ., concur.

      Ill. Rev. Stat. 1983, ch. 24, par. 8 — 11—1 (Municipal Retailers’ Occupation Tax Act); Ill. Rev. Stat. 1983, ch. 1112/3, par. 704.03(e) (Regional Transportation Authority - Retailers’ Occupation Tax); Ill. Rev. Stat. 1983, ch. 120, par. 439.3 (Use Tax Act).