author: JUSTICE "VAN DEUSEN

text:
      In re ESTATE OF DANIEL F. RICE, Deceased.-(RICE FOUNDATION, Plaintiff-Appellant, v. DANIEL F. RICE, JR., et al., Defendants-Appellees.— (CHARLES D. DONALDSON et al., Plaintiffs-Appellees).)
    Second District
    No. 82 — 194
    Opinion filed September 1, 1982.

      Don H. Reuben, Thomas E Ging, Theodore J. Low, and James R. Daly, all of Reuben and Proctor, of Chicago, for appellant Rice Foundation.
    Charles J. O’Laughlin and Colleen K. Connell, both of Jenner and Block, of Chicago, for appellants Arthur A. Nolan, Jr., and Continental Illinois National Bank & Trust Co.
    Alfred E. Woodward, R. Terence Kalina, John F. Garrow, and S. Louis Rathje, all of Rathje, Woodward, Dyer & Burt, of Wheaton, for appellee Daniel F. Rice, Jr.
    Jack -Osswald and Robert Howington, both of Howington, Elworth, Osswald & Hough, of Chicago, for appellees Executors of Estate of Daniel F. Rice.
    Louis G. Davidson, John B. Davidson, and Ronald A. Drumke, all of Louis G. Davidson and Associates, Ltd., of Chicago, for appellees Daniel F. Rice, Jr., and Mary L. Rice.
    Eckhart, McSwain, Hassell & Silliman, of Chicago, for appellees Beatrice Rice Sheridan, Elizabeth Palmer, Shirley Gillick, and Peter Bachrach and family.

      Jane Shaw Whitman, William K. Stevens, Wilber H. Boies, and Eileen Bannon Trost, all of McDermott, Will & Emery, of Chicago, for appellees Bachrach family.
    Samuel H. Young and Theodore W. Grippo, Jr., both of Skokie, for appel-lee Patricia Gillick Nolan.
    Tyrone C. Fahner, Attorney General, of Springfield, and Richard W. Larkin, of Barasa and Larkin, of Chicago, and Hartman E. Stime, of Peregrine, Stime, Newman and Ritzman, Ltd., of Wheaton, and Marvin A. Mar-der, of Marder & Baizer, of Highland Park (Robert A. Tingler and Floyd D. Perkins, Assistant Attorneys General, and Matthias Lydon, Special Assistant Attorney General, of counsel), for other appellees.
   JUSTICE "VAN DEUSEN

delivered the opinion of the court:

This is an appeal brought by the Rice Foundation and the co-exee-utors of the Estate of Ada L. Rice, deceased, from the failure of the trial court to vacate a settlement order and companion decree entered on February 5, 1982, nunc pro tunc, January 25, 1982, and an amending order entered February 18,1982.

Historically, this matter commenced with the death of Daniel F. Rice, Sr., on February 5, 1975. Through his will Rice, Sr., provided for the establishment of two trusts, Trusts A and B. The two trusts were to be funded by splitting Rice, Sr.’s, gross residual assets. Trust A was established to provide for the lifetime needs of the testator’s wife, Ada L. Rice. Under the will, Mrs. Rice was given the power of appointment over the Trust A principal. Trust B was established for the benefit of named parties. These named individuals were several relatives of Rice, Sr., including his son, Daniel F. Rice, Jr., and the Rice Foundation, a not-for-profit corporation. For a more detailed ex-plantation of the will and trust provisions and other aspects of the litigation, see In re Estates of Rice (1979), 77 Ill. App. 3d 641, and In re Estate of Rice (1981), 96 Ill. App. 3d 1137.

Because of the language used in the will and the changes in the tax laws, numerous problems arose when trying to fund the trusts. Additionally, a multitude of claims, lawsuits, and counterclaims were filed by the parties named in the will. The most litigious of these was Daniel F. Rice, Jr. These suits, which were filed in Kentucky, in the Federal courts, and in several Illinois circuit courts, delayed the proceedings in this, the probate case.

In April of 1977, while the probate proceedings and the numerous lawsuits were pending, Ada L. Rice died. In her will and an attached codicil, Ada L. Rice exercised her power of appointment over the Trust A assets. Under the terms of the codicil, $500,000 of the Trust A funds were to be used to establish a trust (the codicil trust) with the Continental Illinois National Bank and Trust Co. as trustee. Rice, Jr., and his wife, Mary Rice, as beneficiaries of the trust, were to receive $25,000 a year for life from the trust income. Upon the death of the beneficiaries, the codicil trust assets were to go to the Rice Foundation. The remainder of the Trust A assets were to go to the Rice Foundation.

Due to the multitude of legal proceedings, the Daniel F. Rice estate has been pending for seven years. The Ada L. Rice estate has been pending for five years. Because there has been protracted litigation concerning the validity and the tax-exempt status of the Rice Foundation, taxing authorities have filed tax-deficiency notices against the Ada L. Rice estate.

In April of 1981, the Illinois Attorney General’s Office, in its capacity as supervisor of public charities, initiated negotiations for a settlement of all claims. The negotiations, however, reached an impasse, and by December 2, 1981, the parties were preparing for trial. At that time, the parties learned of the possibility of further tax liability if they did not settle the case quickly.

On January 5, 1982, the parties met in the chambers of the trial judge, Judge Teschner, in order to negotiate a settlement. No record was made of these negotiations. On January 14, 1982, Mr. Jack Osswald, one of the attorneys for the Daniel F. Rice estate, reported to the court that an agreement in principal had been reached. He then requested that the other pending proceedings, including an appeal before the Illinois Supreme Court, be stayed. The court then requested that the co-executors of the Daniel F. Rice estate draft and circulate a renewed proposal for a settlement agreement. The court requested the executors to give a more specific indication of how the estate assets were to be distributed.

On January 18, 1982, Mr. Osswald circulated a renewed motion which contained more specific terms for a settlement agreement. This detailed proposal called for a distribution of the assets of the Daniel F. Rice estate. Trust B was to be funded in specific amounts and distributed through a series of reformed trusts. Trust A was to be funded and distributed by establishing the $500,000 codicil trust and transferring the remainder to the Rice Foundation. The proposal also required the estate to distribute specific sums of estate assets to named parties in exchange for the dismissal of pending lawsuits and the withdrawal of answers in the will construction suit. The proposal further required the parties to consent to the reformation of the Rice, Sr., will and to exchange mutual and general releases.

On January 25, 1982, counsel for all of the parties, including the Rice Foundation and the Ada L. Rice estate, met in the chambers of Judge Teschner in order to negotiate a settlement. All parties had requested that Judge Teschner be present during the negotiations. While there is no transcript of these proceedings before Judge Tes-chner, all of the parties seem to agree that the following events occurred. During the negotiations, the attorneys made references to the Osswald proposal. When negotiating dollar amounts, the Rice Foundation insisted that the amount to be distributed to Rice, Jr., be reduced by $200,000. Eventually, Rice, Jr., agreed to a $150,000 reduction, and the other Trust B beneficiaries agreed to a $50,000 reduction. At the end of the negotiations, Judge Teschner polled the attorneys to determine if an agreement had in fact been reached. The attorneys all responded in the affirmative. With the consent of all the attorneys, Judge Teschner then called Justice Moran of the Illinois Supreme Court, informed him that the case had been settled, and requested a continuance. Finally, the judge entered an order allowing the payment of $450,000 in attorney fees to the attorneys of the Trust B beneficiaries. The executors of each estate were directed to draw up the necessary settlement documents.

On February 1, 1982, the attorneys for the Daniel F. Rice estate filed their settlement documents and distributed copies of the documents to all the parties. Generally, these settlement documents were a more detailed and formalized embodiment of the Osswald proposal. Some changes were made, however, in the amounts to be distributed by the estate to the relatives of Rice, Sr. In the February 1, 1982, documents the principal of a trust fund to be distributed to named beneficiaries had been reduced by $50,000. Similarly, $150,000 had been subtracted from a specific sum that was to be awarded to Daniel F. Rice, Jr., and Mary Rice. Both the Osswald proposal and the settlement documents called for the exchange of mutual, general releases among the parties and their attorneys. Neither the Osswald proposal nor the settlement documents mentioned a requirement that the trial court enter findings of fact concerning the validity of the Rice Foundation.

On February 3, 1982, a hearing was held to confirm the settlement documents. At the beginning of the hearing, Judge Teschner spread of record some of the events which occurred on January 25, 1982. The court stated that since June the court had spent a considerable amount of time attempting to settle the case. He related that on January 25, 1982, the parties met in his chambers to discuss a settlement. The court stated that after five hours of conferences, the attorneys for the parties reached a settlement agreement concerning all matters in controversy. He stated that he then polled the attorneys and all the attorneys indicated that their clients agreed to and accepted the settlement agreement.

After the trial judge made these statements, the Attorney General’s office indicated that there were a few “tag-end” matters that needed to be discussed off the record. Apparently, the matters in controversy involved specific numbers in the agreement. Attorneys for the Trust B beneficiaries asserted that there was no controversy and that it was too late for the parties to rescind.

Counsel for Rice, Jr., and the various Trust B beneficiaries argued that everyone had worked from the earlier Osswald proposal and that all had agreed to the specific sums in the proposal as they were modified in the settlement documents distributed by the executors on February 1, 1982. Counsel for the Rice Foundation moved to go off the record.

An attorney for the Ada Rice estate stated that, subject to the approval of the Foundation as principal legatee under the will, they saw no “stumbling block” to the documents. The attorney noted that additional documents may be necessary to obtain a dismissal of the cases pending against the Ada Rice estate. Rice, Jr.’s attorney responded that the general releases to be signed were sufficient, but he was certain that Rice, Jr., would sign stipulations for dismissal of those cases.

During the rather heated discussions of February 3, 1982, Mr. Ging, attorney for the Rice Foundation, suggested that maybe there was no settlement and that a hearing should be held to determine if there had in fact been a settlement. Mr. Ging argued that the total of the specific sums to be distributed to the relatives exceeded the amount upon which the parties had agreed. Mr. Ging then stated that the Foundation would not agree to the entry of the decree. The case was continued.

Two days later, on February 5, 1982, additional provisions to the documents were discussed. Several technical and language problems were also noted. At that time, the Ada Rice estate filed its settlement documents. Attorneys for Rice, Jr., objected to the documents arguing that the document contained items not agreed upon by the parties, i.e., findings of fact concerning the directors of the Rice Foundation and various inventories.

At this hearing, Mr. Lydon of the Attorney General’s Office stated that his office had no objection to the settlement documents filed by the executors of the Daniel F. Rice estate. Prior to signing the decree tendered by the executors, the trial judge assured the parties that he was aware of the terms of the settlement and he would enter all necessary orders to effectuate that settlement. The trial court then signed the order and the decree and entered the documents nunc pro tunc as of January 25, 1982. At that specific time, no objection was made to the entry of the settlement order or the decree.

At the next hearing held on February 10, 1982, the Rice Foundation informed the court that it was preparing a motion to vacate the settlement order. On February 18, 1982, the parties met to enter an order conforming the settlement decree. An order was entered which made certain language changes to the original decree order. At this hearing, counsel for the Rice Foundation once again objected to the settlement decree. The Foundation argued that there had been no meeting of the minds; therefore, no settlement had been reached. At the same hearing, the attorney for the Ada L. Rice estate again urged that its documents be entered by the trial court. Once again objections were made to these documents. The objectors argued that the documents did not reflect the agreement made on January 25, 1982.

On February 23, 1982, the Rice Foundation filed a motion to vacate. This motion raised three specific objections to the settlement documents and the decree entered by the court. First, they objected to the specific dollar amounts set out in the settlement documents. It was alleged that the Foundation agreed to a gross settlement award of $5.7 million, and that the total value of the awards contained in the documents accepted by the court exceeded $6.1 million. The Foundation further alleged that the decree is insufficient in that there are no findings concerning the validity of the Foundation. Finally, the Foundation alleged that it did not agree to the giving of a general release to the attorneys for the executors, specifically Mr. Osswald. The Foundation filed four affidavits in support of the motion. After lengthy arguments, the court denied the motion to vacate, and simultaneously denied a motion to stay filed by the Foundation. On March 2, 1982, the Rice Foundation filed a notice of appeal. A separate notice of appeal was filed by the Ada L. Rice estate on March 12, 1982. Both notices requested this court to reverse and vacate the settlement order and the decree entered as of January 25, 1982, and the amending order of February 18,1982.

On appeal, the principal contentions of the Rice Foundation are (1) that the summary procedure employed by the trial court when entering the settlement order was manifestly contrary to established law and (2) that the record does not support the ruling that the Rice Foundation agreed to the settlement as set forth in the order and the decree of the trial court. While co-executors of the Ada Rice estate purportedly contend that no agreement was reached which extended to the Ada Rice estate, the reply briefs of both the Rice Foundation and the Ada Rice estate make clear that a settlement in fact had been reached on January 25, 1982, and that the crucial issue on appeal is not whether a settlement agreement was reached among the parties on that date, but whether the specific orders entered by the court on February 5, 1982, nunc pro tunc, as of January 25, 1982, and the amending order of February 18, 1982, reflect the agreement which the parties had reached on January 25.

Initially, we note that settlement agreements among the parties to settle disputed claims are to be encouraged and should be given full force and effect. (Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co. (1976), 42 Ill. App. 3d 865, 868; Knoll v. Swanson (1968), 92 Ill. App. 2d 398, 402.) Moreover, oral settlement agreements may be enforced and will not be set aside unless there is a showing of fraud or mistake. Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co. (1976), 42 Ill. App. 3d 865, 868; Zamouski v. Gerrard (1971), 1 Ill. App. 3d 890, 895.

All parties agree to the foregoing principles, and also agree that the litigation in this matter was ripe for settlement. As was aptly stated by the Rice Foundation in its brief:

“The Estate and Foundation have been in litigation for many years. The Rice litigation, *** adds luster to no one and tends to provoke adverse comment by the public against the bar and the bench generally. Ultimately, one consequence of this litigation is that less dollars are available to the unfortunate and the needy that would be recipients of the fund disbursed by the Rice Foundation. In the meantime, the lawyers appear to be venal and the courts ineffective. We believe that the best interest of justice will be served if this litigation can be fairly ended . as expeditiously as possible.”

Nevertheless, the Rice Foundation filed a motion to vacate the decree, the settlement order and amending order entered in this case and appeals the trial court’s denial of that motion. In a somewhat novel manner, the Foundation requests that in lieu of reversing the trial court, this court should enter as a remittitur a settlement decree in which the Foundation would agree to and accept the specific dollar distribution set forth in the trial court’s decree but would additionally provide for findings concerning the validity of the Foundation and the authority of its board of directors, and would also provide that the Foundation need not give general releases to the attorney for the executors of the estate of Daniel F. Rice.

On appeal, the Rice Foundation first contends that the summary procedure employed by the trial court in entertaining and refusing to vacate the disputed orders was manifestly improper. In support of their contention, the Foundation relies on the case of Janssen Brothers v. Northbrook Trust & Savings Bank (1973), 12 Ill. App. 3d 840.

In Janssen, a comprehensive settlement agreement was reached with the court’s assistance. Judgment on that agreement was summarily entered. The parties did not question the validity of the settlement decree. Later, however, the plaintiff appeared before the trial court and requested instructions and rulings concerning performance of the settlement agreement. When requesting these rulings the plaintiff asserted facts and events which occurred outside of the presence of the trial judge. Without taking any evidence, the trial court made several rulings concerning the performance of the settlement. The defendants objected to the informal, summary procedure used by the trial court to determine whether the plaintiff had acted in compliance with the settlement. The appellate court noted that evidence and testimony concerning events which occurred outside of the judge’s presence were necessary to satisfactorily resolve the post-settlement issues. Under those circumstances, a summary procedure is improper.

In the present case, we are dealing with the court’s entry of a settlement order and decree based on a court-supervised settlement agreement. Here, the trial judge stated for the record that the order and decree conformed to the parties’ oral agreement which was reached in his presence. Unlike the plaintiff in Janssen, the Foundation did not assert that any relevant matters concerning the negotiations and terms of the agreement occurred outside of the presence of the trial court. Furthermore, in Janssen, the court recognized that under certain circumstances, a motion for entry of judgment in accordance with a settlement agreement may properly be granted in summary proceedings. Janssen Brothers v. Northbrook Trust & Savings Bank (1973), 12 Ill. App. 3d 840, 843; see also Kwak v. St. Anthony De Padua Hospital (1977), 54 Ill. App. 3d 719, 725; Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co. (1976), 42 Ill. App. 3d 865, 868.

Moreover, we note that the Rice Foundation never objected to the summary proceedings and, despite their contentions to the contrary, the Foundation never requested an evidentiary hearing. At best, on February 3, 1982, Attorney Ging, counsel for the Foundation, suggested that the attorneys be placed under oath and testimony be taken to determine what occurred in the presence of the trial judge at the conference held on January 25, 1982. This suggestion was made after most of the attorneys had already related to the court their versions of what occurred on the 25th, and after the trial court had stated that a settlement had indeed been reached. There is no indication in the record that the Foundation ever specifically requested or formally moved for a hearing, nor did the Foundation secure a ruling granting or denying a request for a hearing at which the participants in the January 25 settlement conference could give sworn statements. Because the Foundation never objected to the summary proceedings and never formally requested an evidentiary hearing in the trial court, they cannot raise for the first time in the appellate court the issue of whether the trial court erred in not conducting a hearing. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141; In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 1116.

The Foundation next contends that the order of the trial court is not supported by the evidence. The Foundation contends that their affidavits, which were attached to the motion to vacate, are the only evidence in the record of what occurred at the January 25, 1982, settlement conference. The Foundation concludes that these uncontradicted affidavits demonstrate that the trial court’s order was against the manifest weight of the evidence; therefore, the trial court’s orders must be set aside.

In support of this contention, the Foundation cites Haycraft v. Davis (1869), 49 Ill. 455, and Eilers v. Chicago Transit Authority (1954), 2 Ill. App. 2d 233. Their reliance upon both cases is misplaced. In those cases, all of the events in question occurred outside the presence of the trial court. Neither case involved the use of affidavit to establish what occurred in the presence of the trial judge. Affidavits of what occurred in the presence of the trial judge do not necessarily have to be accepted by the trial judge because it can be presumed that the trial judge knew the averments contained in the affidavit to be untrue or knew that their effect was obviated by other things which occurred in the presence of the trial judge. See Peyton v. Village of Morgan Park (1898), 172 Ill. 102, 107; Tindall v. Chicago & Northwestern Ry. Co. (1916), 200 Ill. App. 556, 562.

In Kwak v. St. Anthony De Padua Hospital (1977), 54 Ill. App. 3d 719, the plaintiff attempted to use an affidavit to establish events which occurred in the presence of the trial judge. In Kwak the plaintiff had petitioned the court for an order dismissing the case as having been settled. Attached to plaintiff’s petition was an affidavit of her attorney stating that at a pretrial conference the defendant’s attorney made a settlement offer which was communicated to the trial judge and accepted by the plaintiff. In a summary proceeding, the trial court denied the motion to dismiss. In affirming the trial court, the appellate court noted that the trial judge had been present at the pretrial conference and concluded that under these circumstances the reviewing court must assume that matters not included in the record, yet known to the pretrial judge, were the basis of his conclusion that an agreement had not been reached. Kwak v. St. Anthony De Padua Hospital (1977), 54 Ill. App. 3d 719, 726.

Here, because the trial judge had personally heard the discussion and observed the events related in the affidavits, he could reject them as untrue or as incomplete statements of the actual events. Relying on his own recollection, he could have determined that the executors’ documents correctly reflected the settlement agreement and that any discrepancy noted by the Foundation was due to a unilateral misunderstanding. Such a unilateral misunderstanding would not allow a rescission of the agreement. Kalman v. Bertacchi (1978), 57 Ill. App. 3d 542, 548; Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co. (1976), 42 Ill. App. 3d 865, 868.

The Rice Foundation correctly notes that the record contains very little evidence of what occurred before the trial court on January 25, 1982. The background information that we have set forth in this opinion was garnered from the undisputed statements contained in the briefs of all parties and from the statements of the attorneys made on the record at proceedings held subsequent to the January 25, 1982, negotiations. The Foundation attempts to use the affidavits to establish for the record the events that occurred in a proceeding before the trial judge. Generally, the events which occur before the trial court are preserved by filing a verbatim report of the proceedings. 73 Ill. 2d R. 323(a).

We are unable to discern from the record in this case whether a court reporter was requested for the January 25, 1982, negotiations. It is evident from the other proceedings that the attorneys for the Foundation generally insisted that the court reporter not be present. Even if a verbatim transcript was not available, the Foundation could have compiled a bystander’s report of the negotiations proceedings. (73 Ill. 2d R. 323(c).) Such a report would have preserved the evidence for review. The Foundation argues, however, that these off-the-record negotiations held in the presence of the trial judge were not a court proceeding; therefore, a report of proceedings or a bystander’s report would have been inappropriate. We disagree.

The purpose of a report of proceedings or a bystander’s report is to afford a means for putting before the reviewing court matters not included in the formal common-law record. (Tansor v. Checker Taxi Co. (1963), 27 Ill. 2d 250, 253.) It should consist of testimony, rulings of the trial court, all matters upon which rulings were made, and any other proceedings which the appellant desires to incorporate in the record on appeal. (73 Ill. 2d R. 323(a); Husted v. Thompson-Hayward Chemical Co. (1965), 62 Ill. App. 2d 287, 292.) We see no reason why it would be inappropriate to file a report of proceedings or a bystander’s report of the settlement conference held before the trial judge on January 25, 1982.

If the Foundation and the Ada L. Rice estate intend to rely on events that occurred during that conference, it is their duty as appellants to correctly preserve that matter for review. (Stony Island Church of Christ v. Stephens (1977), 54 Ill. App. 3d 662, 668.) The Foundation’s suggestion that because the trial court failed to hold an evidentiary hearing, the absence of a record concerning the events of January 25 is the trial judge’s fault is totally without merit.

Absent an adequate record on appeal, we are unable to discern from our examination of the orders of the trial court whether the orders correctly reflected the oral settlement agreement reached on January 25, 1982. For example, the Foundation contends that the total value of the award contained in the decretal order was in excess of $5.7 million, the amount upon which the parties had orally agreed. Because some of the awards are in the form of a life income and some of the interests are subject to divestment, and because there is no indication in the record as to what valuation methods or actuarial tables were used to value the total award, we cannot say that the total value of the award is in excess of $5.7 million.

Other than the affidavits, which the trial judge did not need to accept as true, there is absolutely no support in the record for the Foundation’s contention that the parties agreed to the trial court’s entry of finding concerning the validity of the Foundation and to limit the releases to be granted to the attorneys for the estate.

Because neither the Foundation nor the Ada L. Rice estate has presented a complete or adequate record on appeal, we must indulge every presumption favorable to the judgment. (Kwak v. St. Anthony De Padua Hospital (1977), 54 Ill. App. 3d 719, 725.) Where the record does not disclose to the reviewing court all of the facts upon which the trial court’s actions were based, we are required to assume that the facts known to the trial court were sufficient to support the judgment. (See Belcher v. Spillman (1975), 28 Ill. App. 3d 973, 975.) Under these circumstances, we can only assume that matters not in-eluded in the record, yet known to the trial judge, were the basis for his conclusion that an agreement had been reached and that the order and decree entered as of January 25, 1982, and as amended by the order of February 18, 1982, correctly reflected that oral agreement. We cannot say that the trial court erred in entering the settlement orders.

Affirmed.

REINHARD and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NASH JUSTICE LINDBERG,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD A. FELTON, Defendant-Appellant.
    Second District
    No. 81 — 216
    Opinion filed September 3, 1982.
    Rehearing denied September 30, 1982.

      LINDBERG, J., specially concurring.
    Mary Robinson and John J. Barrett, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Pre-iner, Assistant State’s Attorney, and Phyllis J. Perko and Nancie Hudell, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, Donald A. Felton, was tried by jury and convicted of six counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2) and one count each of burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19— 1(a)), theft in excess of $150 (Ill. Rev. Stat. 1979, ch. 38, par. 16— 1(a)(1)), unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 3(a)), aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(a)) and aggravated assault (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 2(a)(1)). He was thereafter sentenced to concurrent terms of imprisonment of 18 years for armed violence, 7 years for burglary, 5 years for theft, 3 years for unlawful restraint and 364 days for aggravated assault. The aggravated battery conviction was vacated as a lesser included offense of armed violence in which it was the predicate offense.

Defendant appeals contending that the trial court erred in denying his motion to suppress inculpatory statements he made to police when they questioned him after he had requested counsel, and, that his conviction and sentence for armed violence, based on aggravated battery, must be vacated as prohibited double enhancement.

The evidence in trial disclosed that at about 4:15 p.m. on October 24, 1980, Earl E Wilcek returned home from work to his apartment in Elmhurst and found damp, unfamiliar clothing on the radiator. He testified he was then confronted by defendant who was wearing Wilcek’s clothes, his wife’s gold necklace and pointing Wilcek’s loaded rifle at him. Defendant told Wilcek to be cool and advised him he had recently escaped from Menard and had entered the apartment to find car keys as people were trying to kill him. Wilcek responded that his wife had their car and defendant held him "at gunpoint for about an hour during which time defendant stated he had entered the apartment at about 2:30 p.m. by breaking a window; he also took money from Wilcek’s wallet during this period. Defendant allowed Wilcek to answer the phone when his wife called to tell her to leave the car in back of the apartment and come upstairs. Wilcek pleaded with defendant not to shoot them when his wife arrived. Defendant said he knew gang members and killing was an everyday way of life in prison. He asked Wilcek if he had heard of Don Felton and became angry when he responded he had not; defendant told Wilcek he was desperate and that police would have to kill him to catch him. When defendant momentarily took his hand off the trigger of the rifle Wilcek made a grab for the weapon and a struggle ensued during which defendant threatened to cut Wilcek with his knife, struck him seven or eight times with the rifle and fired it once into the ceiling. Wilcek managed to escape out the door and called the police.

Sergeant John Millner and Officer Michael Krenek of the Elmhurst police were on patrol at approximately 5 p.m. when they were informed by radio that a subject matching the home invader’s description had been seen. They drove to a location a few blocks from the Wilcek apartment where they observed defendant, whose description matched that given by Wilcek, carrying a rifle wrapped in clothing; he was also wearing Wilcek’s clothes and his wife’s gold necklace and carrying a knife. Defendant was arrested, given the Miranda warnings and transported to the police station where he requested an attorney at 5:25 p.m. At 6:30 p.m., before an attorney was provided, detectives Edwin Whiter and James O’Brien initiated an interview with defendant in which he made inculpatory statements. Defendant’s pretrial motion to suppress the statements was denied by the trial court.

Officer Whiter testified in trial that defendant had said he had been released from Menard Penitentiary a few days earlier on October 24. Defendant also related that five men were always following him and chasing him around and he had entered the apartment by breaking a window. In the apartment defendant looked for something to eat and dry clothes as his were wet. He also found a rifle in the apartment. Defendant stated a man came home and they struggled, during which defendant fired the rifle into the ceiling to scare the man and stop the struggle. The man then ran out and so did defendant.

Officer Raymond Turano testified he made a crime scene investigation in which he discovered a window pane on the back door had been broken. In the living room he found a spent shell casing on the floor, a pile of clothing on the radiator, and the room in disarray appearing as though a struggle had occurred. The officer also located a bullet hole in the upper portion of a closet.

Defendant testified on his own behalf that he was in the Wilcek apartment on the day in question. He stated he believed certain people were conspiring to kill him and he had followed his instincts in going there. He further testified he had entered another apartment under similar circumstances in the past for which he had been convicted of attempt burglary and sentenced to Menard.

Defendant initially contends that the trial court erred in denying his motion to suppress the inculpatory statements made by him while in custody, after requesting an attorney, in violation of Edwards v. Arizona (1981), 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1884-85, which states:

“that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel had been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.”

The State confesses error, but argues that in this case it was harmless beyond a reasonable doubt and does not require reversal and a new trial.

In People v. Black (1972), 52 Ill. 2d 544, 555, 288 N.E.2d 376, 383, cert. denied (1973), 411 U.S. 967, 36 L. Ed. 2d 689, 93 S. Ct. 2155, the court stated that consideration of whether constitutional error is harmless beyond a reasonable doubt is not limited as to whether the erroneously admitted evidence is merely cumulative or that other record evidence is sufficient to sustain the conviction; rather, the focus should be on the character and quality of the illegally obtained evidence as it relates to the other evidence bearing upon the same issue and its possible impact upon the jury. This question was further addressed in People v. Henenberg (1973), 55 Ill. 2d 5, 11, 302 N.E.2d 27, 30, in which the court found that a motion to suppress a confession would be allowed when continued interrogation by officers leads to a confession after defendant has requested an attorney and none has been provided. While there the court found the error required reversal after review of the evidence, it left open the question of whether the improper admission of a confession or inculpatory statement of a defendant can ever be harmless error.

In People v. Washington (1977), 68 Ill. 2d 186, 194, 369 N.E.2d 57, 60-61, cert. denied (1981), 454 U.S. 846, 70 L. Ed. 2d 132, 102 S. Ct. 162, the court determined that admission of incriminating statements made by Washington during custodial questioning after he had requested counsel could not be deemed harmless as there the eyewitnesses to the offenses were unable to identify defendant in a lineup and certain testimony in trial tended to corroborate his version of events.

In the case at bar, we find the erroneous admission into evidence of defendant’s statement was harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 23-24, 17 L. Ed. 2d 705, 710, 87 S. Ct. 824, 828.) It neither contradicted nor did it in any manner tend to negate defendant’s apparent defense of compulsion (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 11(a)). It was supportive of his own testimony in trial and substantiated his assertion that entry of and the occurrences in the Wilcek apartment were carried out by him under a justified compulsion. Although erroneously allowed in evidence, the initial statements made by defendant could only aid his effort to convince the jury his defense was viable.

While not alone dispositive of the question of harmless error, in these circumstances the erroneous admission of this evidence could not have contributed to the finding of guilt by the jury. (See People v. Smith (1967), 38 Ill. 2d 13, 15, 230 N.E.2d 188, 190; People v. Colley (1980), 83 Ill. App. 3d 834, 842, 404 N.E.2d 378, 384, appeal denied (1980), 81 Ill. 2d 595; People v. Gan (1979), 75 Ill. App. 3d 72, 77, 394 N.E.2d 611, 614; People v. Kennedy (1978), 66 Ill. App. 3d 267, 276, 383 N.E.2d 713, 722, appeal denied (1979), 74 Ill. 2d 588; People v. Hansen (1980), 90 Ill. App. 3d 407, 408, 413 N.E.2d 103, 105; cf. People v. Lane (1982), 106 Ill. App. 3d 793, 436 N.E.2d 704.) Other evidence clearly established the offenses for which defendant was convicted, including his identity as the offender. Although he argues denial of suppression of his statement necessitated a change in his trial tactics to lessen the impact of its introduction by the State, he does not suggest what other defense he might have to offer. We conclude admission of defendant’s statement was harmless error.

Defendant also contends his conviction and sentence for armed violence, predicated upon aggravated battery, must be vacated in light of People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627.

Verdicts were returned by the jury finding defendant guilty of armed violence under six counts of the information charging that offense. He was sentenced only under count XI, which charged as the predicate felony the commission of aggravated battery while armed with a rifle. The aggravated battery offense was itself enhanced from the misdemeanor of battery premised upon the allegation defendant committed a battery while armed contrary to section 12 — 4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1)).

The State argues, however, that because defendant was charged with offenses of armed violence predicated on aggravated battery while armed with a rifle and also while armed with a knife, that one weapon may serve as a basis for the offense of aggravated battery and the second as the predicate for armed violence, thus avoiding the Harón rule. We do not agree.

Section 33A — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2) provides that “[a] person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois law.” In Harón the court determined that the statute contemplates commission of a predicate offense which constitutes a felony without enhancement by the presence of a weapon. That test is not met here where defendant was sentenced for armed violence predicated upon aggravated battery by use of a deadly weapon. See People v. Van Winkle (1981), 88 Ill. 2d 220, 430 N.E.2d 987.

The State alternatively requests that we reinstate defendant’s conviction for aggravated battery, which was vacated as a lesser included offense of armed violence, and remand for sentencing on that charge and the armed violence convictions predicated on the felonies of burglary and theft for which he was not sentenced and from which he did not appeal.

In the recent case of People v. Dixon (1982), 91 Ill. 2d 346, it was determined that the appellate court has authority to remand for sentencing unappealed and unsentenced convictions which were related to and dependent upon an appealed conviction. In the present case, however, the trial court vacated the aggravated battery conviction for which no sentence was imposed and there remains no incomplete judgment in the trial court upon which sentence may be entered. (See People v. Baker (1980), 85 Ill. App. 3d 661, 663, 406 N.E.2d 1152, 1154.) Had the trial court chosen to permit that conviction to stand, remandment for sentencing would clearly be authorized. People v. Scott (1977), 69 Ill. 2d 85, 370 N.E.2d 540.

Arguably, when considered in the light of People v. Dixon, Supreme Court Rule 615(b)(2) (73 Ill. 2d R. 615(b)(2)) would permit a reviewing court to set aside the order vacating defendant’s conviction for aggravated battery. It was vacated by the trial court as a lesser included offense of the armed violence conviction which defendant has appealed and was related to and dependent upon it. In Dixon, however, and related cases where remandment for sentencing has been authorized, there remained in the trial court an incomplete, nonfinal judgment of conviction upon which to act. (See People v. Scott (1977), 69 Ill. 2d 85, 370 N.E.2d 540; People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1.) That is not the case here, and we believe it would be an unauthorized extension by this court of our powers of review under Rule 615(b)(2) to so hold.

The unsentenced convictions for armed violence present a different but equally troublesome question. Three general verdicts were returned by the jury finding defendant guilty of armed violence predicated, respectively, on aggravated battery (which we have discussed), burglary and felony theft. Count VII of the information charged armed violence predicated upon the commission of burglary while armed with a rifle; count VIII was predicated upon burglary while armed with a knife; count IX was predicated upon felony theft while armed with a rifle and count X was predicated upon felony theft while armed with a knife. Defendant was sentenced for armed violence only under count XI, which we have set aside. It is also apparent that as the rifle was obtained in the apartment after its entry by defendant, the general verdict for armed violence (burglary) could not refer to count VII, which was premised upon defendant being armed with that weapon when he entered the apartment.

The State suggests that the incomplete judgments of conviction for armed violence under counts VIII, IX and X be remanded for sentencing as the trial court was under the mistaken belief it could sentence defendant for only one of the armed violence convictions and did so under count XI, which defendant appealed. Again, we cannot agree.

Judgments were also entered and defendant was sentenced by the trial court for the predicate offenses of burglary (Class 2) and felony theft (Class 3) as charged in counts I and II of the information. In these circumstances judgment should have been entered and sentence imposed only for the more serious Class X offenses of armed violence charged in counts VIII, IX and X in which the predicate burglary and thefts were alleged to have been committed while armed with category one weapons. (People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.) The trial court did not choose to do so, however, and imposed sentence for the lesser included offenses of burglary and theft. Convictions and sentences for both armed violence and their predicate burglary and theft clearly cannot be imposed (People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535; People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273), and we are not aware of any authority permitting this court to vacate the lesser offenses in order to remand for sentencing on the greater.

Accordingly, we reverse the judgment of the trial court for armed violence under count XI and in all other respects its judgment is affirmed.

Reversed in part; affirmed in part.

UNVERZAGT, J., concurs.

JUSTICE LINDBERG,

specially concurring:

I specially concur in the majority opinion but would decline to remand for sentencing on the unsentenced armed violence convictions predicated on burglary and felony theft for a different reason. At the sentencing hearing the State waived sentencing on those armed violence convictions. See People v. Ficarrotta (1943), 385 Ill. 108.


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD W. BURTON, Defendant-Appellant.
    Fourth District
    No. 4 — 82—0029
    Opinion filed August 26, 1982.
    Daniel D. Yuhas and Janet Binder, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Robert J. Bier, Special Prosecutor, of Quincy, for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was convicted of the offense of murder in the circuit court of Adams County in 1979. He appealed to this court which affirmed the conviction. (People v. Burton (1980), 86 Ill. App. 3d 1199 (Rule 23 order).) Subsequently, in 1981, he filed a post-conviction petition (Ill. Rev. Stat. 1979, ch. 38, par. 122 — 1) and it was dismissed on motion of the People by Judge Dittmeyer. Defendant appealed the dismissal to this court which docketed the appeal. Shortly thereafter, the People confessed error in that defendant’s appointed counsel had not filed the certificate required by Supreme Court Rule 651(c) (87 Ill. 2d R. 651(c)). This court by a short order allowed the confession and remanded the case to the trial court with directions to allow the defendant to file a new post-conviction petition and to appoint new counsel.

Upon remand new counsel was appointed and leave was granted to file an amended petition. In the record there appear two letters; one, from newly appointed counsel to defendant asking for directions as to whether to refile the former petition or to file an amended one; and two, a reply from defendant directing that the former petition be refiled along with a motion for substitution from Judge Dittmeyer.

The motion for substitution, supported by affidavit, was filed. The affidavit is purely conclusory, stating in part that Judge Dittmeyer heard the prior motion to dismiss and that his ruling was reversed by the appellate court. Judge Dittmeyer heard and denied the motion for substitution.

On the same day as the denial of the motion for substitution, appointed counsel filed a new post-conviction petition. The original one, drafted pro se by defendant, was prolix but in essence argued that the evidence was not sufficient to prove his guilt beyond a reasonable doubt. The new petition reiterated this allegation and added an element of improper instructions. The People filed a motion to dismiss the new petition, alleging that the matters contained therein were either res judicata based on our Rule 23 order, or waived by not being raised on the original appeal. Judge Dittmeyer allowed the motion to dismiss and this appeal followed.

In this court defendant has raised only one issue: that it was improper for Judge Dittmeyer to hear the motion for substitution when he was the judge named in the motion.

The parties have argued the matter in this court in the context of section 114 — 5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 5(c)). We believe that they have overlooked the nature of post-conviction relief. In People v. Wilson (1967), 37 Ill. 2d 617, 230 N.E.2d 194, the supreme court, citing considerable prior authority, held that post-conviction proceedings were civil in character. It therefore follows that a substitution of judge must meet the requirements of the venue act (Ill. Rev. Stat. 1979, ch. 110, par. 501 et seq.). That act provides that there may be a substitution of judge if the judge is prejudiced against the moving party, provided that the motion therefor is made before that judge has ruled on any substantial issue. The obvious purpose of this requirement is to prevent forum shopping.

In the case at bar defendant alleged in his affidavit that Judge Dittmeyer’s original order of dismissal had been reversed by this court. That is not true. This court dismissed the appeal and remanded the case on confession of error upon a technical point, i.e., the failure of defense counsel to provide a necessary certificate of compliance. This court has never addressed the merits of defendant’s post-conviction petition as originally filed, and the merits of the substituted petition have not been appealed. It follows that Judge Dittmeyer’s ruling of dismissal of the original petition has never been disturbed and still stands as a ruling of substance.

Defendant points out that section 114 — 5(c) requires that the motion be heard by a judge not named in the motion. We have already indicated that that section does not apply in the instant case and no such provision appears in the venue act which controls these proceedings. In fact, the very nature of the provisions of the venue act demand that the motion be presented to the judge named in the motion. Compare American State Bank v. County of Woodford (1977), 55 Ill. App. 3d 123, 371 N.E.2d 232.

It was not improper for Judge Dittmeyer to entertain the motion for substitution. Wilson points out that there may be circumstances in which a judge should recuse himself from hearing a post-conviction petition. None such is present here. There has been no evidence presented in support of the petition at any time; all of Judge Dittmeyer’s rulings have been solely on the legal sufficiency of it and none of those rulings has been disturbed.

The action of the circuit court of Adams County was not improper and it is affirmed.

Affirmed.

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


author: JUSTICE LORENZ

text:
    COMMUNITY RENEWAL SOCIETY, Plaintiff-Appellant, v. THE DEPARTMENT OF LABOR et al., Defendants-Appellees.
    First District (5th Division)
    No. 81 — 1765
    Opinion filed August 20, 1982.

      John D. Purdy, Jr., John J. Lawler, and Gregory L. Dose, all of Ross, Hardies, O’Keefe, Babcock & Parsons, of Chicago, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Community Renewal Society, a not-for-profit corporation, appeals from a judgment which affirmed the Director of the Department of Labor’s decision that the Society is not exempt from the requirements of the Unemployment Insurance Act (UIA) (Ill. Rev. Stat. 1979, ch. 48, par. 300 et seq.).

The dispositive issue is whether the Director correctly interpreted section 211.3(A) (2) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 321.3(A) (2)). This section grants an exemption from participation in the unemployment insurance program for any organization “which is operated primarily for religious purposes and which is operated, supervised, controlled or principally supported by a church or convention or association of churches.”

In rejecting the Society’s claim that it qualified for this exemption, the Director concluded that (a) public worship and religious instruction are the only activities which can qualify as “religious” under the Act; and (b) the exemption only applies to organizations which “by law and in fact” are operated, controlled, or supervised by churches or groups of churches: in other words, the legal right to control, supervise, or operate the organization under its charter or bylaws is as important as the actual exercise of these powers.

We conclude that the Director incorrectly interpreted the statute, and we accordingly reverse his decision and remand for further proceedings. The following facts are material to our decision.

The Society was founded in 1893 as the Chicago City Missionary Society by members of the United Church of Christ. Among its chief activities at present are programs to develop new congregations and maintain existing congregations as members of the United Church of Christ. Other projects include maintaining a conference facility in Woodstock, Illinois, plus programs to combat racism and fund various community organizations.

The Society is run by a board of directors, and the Society’s “constitution” requires that a majority of the directors must be members of the United Church of Christ. The directors are elected by two classes of voters: (1) “participating members,” consisting of individuals who financially support the Society, and (2) “church representatives” who serve as the delegates of congregations which have helped support the Society and which belong to the Chicago Metropolitan Association of the United Church of Christ.

According to the report of the Department of Labor’s hearing officer, a report which the Director affirmed and incorporated in his decision, “During the periods at issue the number of ‘church representatives’ exceeded the number of votes of the ‘participating members’ at a ratio of approximately five to three.” This estimate of the size of the majority maintained by the church representatives was admittedly conservative, however, because a number of church representatives also chose to make individual contributions to the Society and, accordingly, they were counted as participating members as well as representatives of their congregations.

The Society’s “constitution” and bylaws provide that the Association Minister of the Chicago Metropolitan Association, the church group’s chief officer, is automatically a member of the Society’s board of directors. Moreover, these documents also provide that half the members of the Society’s nominating committee are to be chosen by the Chicago Metropolitan Association. And, the report adopted by the Director states that “[throughout its operation no person has been elected to the [Society’s] Board of Directors who has not first been selected by the nominating committee.”

In addition, the Society’s bylaws provide that the board of directors must consult -with the Chicago Association and the Illinois Conference of the United Church of Christ when selecting the Society’s executive director. And, still further, the Society has entered into covenants with the Chicago Association and.the Illinois Conference in which it agreed to undertake various church-related projects on behalf of the church groups.

Relying on People ex rel. Carson v. Muldoon (1922), 306 Ill. 234, 137 N.E. 863, and People ex rel. McCullough v. Deutsche Evangelisch Lutherische Jehovah Gemeinde Ungeaenderter Augsburgischer Confession (“Deutsche Gemeinde”) (1911), 249 Ill. 132, 94 N.E. 162, the Director concluded that “[t]he Illinois Supreme Court defined religious purpose ‘as a use of such property by a religious society or body of persons as a stated place for public worship, Sunday schools, and religious instruction.’ ” Applying this statement as a definition, the Director ruled that the Society was not operated primarily for religious purposes because neither public worship nor religious instruction were its primary activities.

The Director also ruled that the Society was not operated, supervised, or controlled by a church or group of churches, on the grounds that the Society “was subordinate in fact to its own members and not to the Chicago Metropolitan Association of the United Church of Christ, even though a majority of the [Society’s] members may also have been members of the Association of Churches.” This ruling was based on the conclusion that “the legislature intended to exempt only those primarily religious organizations which are by law and in fact” operated, supervised, or controlled by a church or group of churches. (Emphásis added.) Thus the Director concluded that the Society did not qualify for the exemption even if, as a practical matter, it was controlled, supervised, or operated by the Chicago area association of United Church of Christ congregations.

I. Unemployment Insurance

During the Great Depression, Congress induced State legislatures to create unemployment insurance programs by (1) imposing a Federal excise tax on certain classes of employers; and (2) giving the employers a credit against the tax for contributions made to federally-approved State unemployment insurance programs. St. Martin Evangelical Lutheran Church v. South Dakota (1981), 451 U.S. 772, 775, 68 L. Ed. 2d 612, 615-16, 101 S. Ct. 2142, 2145; California v. Grace Brethren Church (1982), 457 U.S. 393, 73 L. Ed. 2d 93, 102 S. Ct. 2498 (construing provisions of the Federal Unemployment Tax Act (FUTA), 26 U.S.C.S. secs. 3301-3311).

In response, every State enacted unemployment insurance laws “implementing the federal mandatory minimum standards of coverage.” (St. Martin Evangelical Lutheran Church v. South Dakota (1981), 451 U.S. 772, 775 n.3, 68 L. Ed. 2d 612, 615-16 n.3, 101 S. Ct. 2142, 2144 n.3.) Mandatory coverage did not extend to all wage earners, however, and FUTA did not impose an excise tax on nonprofit organizations which were tax-exempt under the Internal Revenue Code. (St. Martin Evangelical Lutheran Church v. South Dakota (1981), 451 U.S. 772, 776, 68 L. Ed. 2d 612, 616, 101 S. Ct. 2142, 2145.) Consequently, there was no tax-credit incentive for States to extend unemployment insurance coverage to employees of nonprofit organizations.

Then, in 1970, without extending the excise tax to nonprofit organizations, Congress specified that, to obtain Federal certification for their unemployment insurance programs, States must provide coverage for the employees of nonprofit organizations. (Employment Security Amendments of 1970, Pub. L. 91-373, 84 Stat. 695 et seq.) But, at the same time that it broadly extended unemployment insurance coverage, Congress enacted section 3309(b) of FUTA which, among other things, exempted from mandatory coverage the employees of any “organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches.” 26 U.S.C.S. sec. 3309(b)(1)(B) (1980).

FUTA, therefore, does not require States to extend unemployment insurance coverage to subsection (b)(1)(B) organizations. But neither does the Act prohibit States from covering workers who are not included within the Federal mandatory-minimum standards. St. Martin Evangelical Luthern Church v. South Dakota (1981), 451 U.S. 772, 775 n.3, 68 L. Ed. 2d 612, 615-16 n.3, 101 S. Ct. 2142, 2144 n.3.

Using the language of section 3309 verbatim, the Illinois General Assembly decided to excempt from UIA coverage the employees of subsection (b)(1)(B) organizations. (Ill. Rev. Stat. 1979, ch. 48, par. 321.3(A)(2).) So, even though we are dealing with an exemption which is identical to a provision in FUTA, and the United States Supreme Court has specifically reserved for future decision the question of the proper interpretation of the Federal provision (St. Martin Evangelical Lutheran Church v. South Dakota (1981), 451 U.S. 772, 782-83 n.12, 68 L. Ed. 2d 612, 620 n.12, 101 S. Ct. 2142, 2148 n.12), our decision is based solely on our interpretation of the Illinois law. Cf. St. Martin Evangelical Luthern Church v. South Dakota (1981), 451 U.S. 772, 780 n.9, 68 L. Ed. 2d 612, 618-19 n.9, 101 S. Ct. 2142, 2147 n.9.

II. “Religious Purposes”

The Director of the Department of Labor interpreted the phrase “religious purposes” in the Illinois exemption (Ill. Rev. Stat. 1979, ch. 48, par. 321.3(A)(2)), as being limited to public worship and religious instruction. As the Director correctly pointed out, the Supreme Court stated, in the Deutsche Gemeinde case, that:

“As applied to the uses of property, a religious purpose means a use of such property by a religious society or body of persons as a stated place for public worship, Sunday schools and religious instruction.” 249 Ill. 132,136-37, 94 N.E. 162,164.

However, in subsequent discussion of Deutsche Gemeinde, the supreme court explained that “[t]his [language] was not stated as inclusive of everything that might in the future be regarded as a use for religious purposes but as illustrative of the nature of such use.” (People ex rel. Carson v. Muldoon (1922), 306 Ill. 234, 238, 137 N.E. 863, 864.) Furthermore, notwithstanding a discussion of Deutsche Ge-meinde, the supreme court has also stated that “[o]ur attention has been called to no decision of this court attempting to lay down an all-inclusive definition or specification of what constitutes a religious purpose.” Scripture Press Foundation v. Annunzio (1953), 414 Ill. 339, 352, 111 N.E.2d 519, 526.

Finally, promulgation of a precise and conclusive definition of “religious purposes” was wholly unnecessary to the court’s decision in Deutsche Gemeinde. The court did not decide whether a particular type of activity constituted a “religious purpose.” Instead, the court merely held that the affidavit submitted by the taxpayer in support of its claim of exemption was fatally defective because this supporting document contained legal conclusions only, “and did not state the facts upon which the conclusions were based.” 249 Ill. 132, 137, 94 N.E. 162,164.

Since the court’s definition of “religious purposes” was “casually reached by the court on an issue unrelated to the essence of the controversy ***, then it is obiter dictum.” (Larson v. Johnson (1953), 1 Ill. App. 2d 36, 40, 116 N.E.2d 187, 189.) “A judicial opinion, like a judgment, must be read as applicable only to the facts involved and is an authority only for what is actually decided.” (People ex rel. Schuler v. Chapman (1939), 370 Ill. 430, 435, 19 N.E.2d 351, 354.) Deutsche Gemeinde, therefore, cannot be read as containing an authoritative definition of “religious purposes.”

We conclude that Illinois courts have, as have courts generally, “been quite cautious in attempting to define, for tax [and unemployment insurance] purposes, what is or is not a ‘religious’ activity or organization — for obvious policy and constitutional reasons.” B. Hopkins, The Law of Tax-Exempt Organizations sec. 8, at 132 (3d ed. 1979): see, e.g., Scripture Press Foundation v. Annunzio (1953), 414 Ill. 339, 111 N.E.2d 519 (examining all the facts and circumstances of the particular case in deciding whether certain activities were primarily religious). See also G. Braden and R Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 438-39 (1969) (applicability of exemptions typically presents factual questions “not readily controlled by definitive standards”).

The Director of the Department of Labor contends that his decision should be affirmed on the grounds that it is not against the manifest weight of the evidence. We recognize that “[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (Ill. Rev. Stat. 1979, ch. 110, par. 274 .) However, “it is fundamental that an erroneous construction of a statute by an administrative agency is not binding upon the courts.” Winakor v. Annunzio (1951), 409 Ill. 236, 248, 99 N.E.2d 191, 197 (administrative review of a decision by the Director of the Department of Labor in a proceeding under the Unemployment Insurance Act). See also Supreme Court Rule 366(b)(1)(i) (73 Ill. 2d R. 366(b)(1)(i)) (“Any error of law affecting the judgment or order appealed from may be brought up for review.”).

The erroneously limited definition of “religious purposes” used by the Director in evaluating the Society’s activities improperly gave short shrift to such things as the Society’s covenants with the church groups, and the Society’s programs for developing and maintaining congregations as members of the United Church of Christ. Consequently, we conclude that this error of law affected the Director’s deliberations.

The Director, however, correctly points that the requirements of section 211.3(A)(2) are conjunctive, and the error in interpreting “religious purposes” is not reversible if there was no error in finding that the Society was not “operated, supervised [or] controlled *** by a church or convention or association of churches.”

III. Operated, Supervised, or Controlled

The Director concluded that even if “in fact” the “church representatives” chosen by the member congregations of the Chicago Metropolitan Association operated, supervised, or controlled the Society, the Society was not eligible for the exemption because its “constitution,” bylaws, and covenants did not “in law” give the Association or its member churches the right to exercise power over the Society.

At one time, the Unemployment Insurance Act (then known as the Unemployment Compensation Act) exempted groups that were organized and operated primarily for religious purposes. (Ill. Rev. Stat. 1951, ch. 48, par. 331.) Under this provision, the courts were required to examine the charter and bylaws of purportedly exempt organizations, as well as their actual operations. See, e.g., Scripture Press Foundation v. Annunzio (1953), 414 Ill. 339, 348-49, 111 N.E.2d 519, 524.

In contrast, section 211.3(A)(2) does not providé that an exempt organization must be organized as well as operated, supervised, or controlled by a church or group of churches. We are therefore persuaded the General Assembly intended that an organization which is operated primarily for religious purposes would qualify for an exemption under section 211.3(A)(2) if it is in fact operated, supervised, or controlled by a church or group of churches. Accord, Employment Division v. Northwest Christian College (1977), 31 Or. App. 201, 570 P.2d 100 (construing an identical exemption).

Again, it is clear that the Director’s erroneous interpretation of the statute affected his deliberations. We therefore conclude that we must reverse the Director’s decision and remand for further administrative proceedings.

IV. Operated Primarily for Religious Purposes

Although the courts and the legislature have not attempted to conclusively define “religious purposes,” we are able to offer some guidance on what the legislature intended in using the phrase “operated primarily for religious purposes.”

As we stated in section I of this opinion, our decision is based on our interpretation of the Illinois exemption rather than upon the identically worded Federal provision. Nevertheless, “[w]hile our Unemployment Compensation Act is not circumscribed by the Federal act, weight should be given to the interpretation of identical provisions as made by the Federal department, for the Federal act is undoubtedly the background of all the State Unemployment Compensation Acts.” Commonwealth Life & Accident Insurance Co. v. Board of Review (1953), 414 Ill. 475, 481, 111 N.E.2d 345, 348.

When attempting to ascertain the intent of the legislature as part of the process of statutory interpretation, it is proper to examine the report of the legislative committee which drafted the law. (People v. Touhy (1964), 31 Ill. 2d 236, 239, 201 N.E.2d 425, 427.) “As to those parts of the bill which the legislature passed without change as introduced by the committee, it is reasonable to assume that the legislature adopted as its intent, the intent of the committee.” 2A Sutherland, Statutory Construction sec. 48.06, at 203 (4th ed. 1973).

We conclude that because of the close causal association between FUTA and the Illinois Unemployment Insurance Act, it is proper to examine congressional committee reports as an aid in interpreting Illinois provisions which are identical to sections in the Federal law. Accord, H. Duys & Co. v. Tone (1939), 125 Conn. 300, 304, 5 A.2d 23, 25.

The report of the House Ways and Means Committee on the Employment Security Amendments of 1970 states, in its explanation of the newly created section 3309(b)(1), that,

“This paragraph excludes services of persons where the employer is a church or convention or association of churches, but does not exclude certain services performed for an organization which may be religious in orientation unless it is operated primarily for religious purposes and is operated, supervised, controlled, or principally supported by a church (or convention or association of churches). Thus, the services of the janitor of a church would be excluded, but services of a janitor for a separately incorporated college, although it may be church related, would be covered. A college devoted primarily to preparing students for the ministry would be exempt, as would a novitiate or a house of study training candidates to become members of religious orders. On the other hand, a church related (separately incorporated) charitable organization (such as, for example, an orphanage or a home for the aged) would not be considered under this paragraph to be operated primarily for religious purposes.” H.R. Rep. No. 91-612, p. 44 (1969). See also S. Rep.
No. 91-752, pp. 48-49 (1970) (containing an identical statement).

It is reasonable to assume that the Illinois General Assembly relied upon this discussion of the 1970 FUTA amendments when it enacted the corresponding State legislation. We recognize that it might sometimes be difficult to determine whether a separately incorporated entity is merely a “church related” charity rather than an organization which is “operated primarily for religious purposes.” But we expect that the Director will undertake his fact-finding function with thorough consideration for the important policy and constitutional imperatives which caused the legislature to enact sections 211.3(A) and (B) (Ill. Rev. Stat. 1979, ch. 48, pars. 321.3(A) and (B)).

For the preceding reasons, the judgment of the circuit court and the decision of the Director of the Department of Labor are reversed, and this cause is remanded to the Director for proceedings consistent with this opinion. Supremé Court Rule 366(aX5) (73 Ill. 2d R. 366(aX5)).

Circuit court reversed; Director of Department of Labor reversed; and cause remanded with directions.

SULLIVAN, P. J., and MEJDA, J., concur.


text:
    JOSEPH J. CIMINO, Plaintiff-Appellee, v. CONRAD DILL et al., Defendants-Appellants.
    First District (5th Division)
    No. 81 — 2517
    Opinion filed August 20, 1982.

      James N. Vail, of Chicago, for appellants.
    William Biederman, of Marks, Katz, Randall, Weinberg & Blatt, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff Joseph Cimino filed an action seeking a declaration that various restrictive covenants did not preclude him from constructing and operating medical offices on property he purchased in an Elk Grove Village subdivision. On remand from a prior appeal (Cimino v. Dill (1980), 92 Ill. App. 3d 345 (“Cimino I”)), the trial court construed the applicable covenant as permitting the proposed use, and defendants Bud Krueger and Charles Christian (the owners of single-family residences in the subdivision) appeal from a judgment entered in favor of plaintiff. We hold that the trial court properly construed the applicable covenant, and we affirm the judgment. The following facts are material to our decision.

The Catholic Bishop of Chicago, as a corporation sole, took conveyance of Lot 4675 in the subdivision subject to a recorded restrictive covenant (hereinafter referred to as the “original document”) which provided that,

“All lots shall be used for single family residence purposes except *** Lot 4675 *** shall be designated as a Church Site ***. It is understood that, with regard to Lot *** 4675 *** the owner or owners in fee simple of said lot, shall at the time of subdivision thereof, be the sole parties who shall have the right to determine whether *** Lot 4675, as subdivided, shall be used for a church site ***.”

After Lot 4675 was conveyed to the Catholic Bishop, the developer recorded a second document which provided that Lot 4675 could only be used for single-family residences if the Catholic Bishop decided not to use the entire lot for a church. Subsequently, the Catholic Bishop decided that the entire lot would not be needed for church purposes, and he conveyed a subdivided portion of the property to plaintiff.

In Cimino I we held that the second document was not binding on the Catholic Bishop because it had not been recorded before the property was conveyed to him. As we explained, “The second document was merely a unilateral after-the-fact declaration of [the developer’s] intent in recording the original restrictions and to the extent that it expands or varies the earlier restrictions would not restrict the Catholic Bishop’s use of the property.” 92 Ill. App. 3d 345, 349.

We further held that the original document is ambiguous (92 Ill. App. 3d 345, 348) because “[f]rom an examination of the original document, [the developer’s] intent is unclear as to whether Lot 4675 was restricted to use for single-family residences unless the owner or owners determined to make use of its optional designation as a church site or whether the lot would be unrestricted in use should the owner determine not to use it as a church site.” 92 Ill. App. 3d 345, 349.

At an evidentiary hearing after remand from Cimino I, defendants presented evidence that the Catholic Bishop was notified of the second document after the property had been conveyed to him. In this appeal, defendants initially assert that the Catholic Bishop and his assigns are bound by the second document because he “took possession of the subject property with full knowledge of the restrictions contained in the two documents at issue and thereby acquiesced in their enforceability.”

Defendants also assert that the trial court improperly “entered a judgment that went beyond the pleadings.” The basis for this argument is the fact that the trial court construed the original document as permitting the proposed development, but plaintiff’s amended complaint only prayed for a declaration that both documents are “inapplicable and unenforceable.”

The initial argument overlooks the fact that, in the absence of a subsequent agreement between the Catholic Bishop and the developer concerning the second document, the Catholic Bishop was only bound by the restrictions which were in his deed, or in the record chain of title, when the property was conveyed to him.

“A covenant is an agreement between the parties to do or not to do a particular act.” (Leverich v. Roy (1948), 402 Ill. 71, 73.) In other words, there must be a meeting of the minds between the covenanting parties. But, “A grantee who accepts a deed with a covenant imposing duties upon him is as much bound by such [a] covenant as though he had signed and sealed the deed.” (Druecker v. McLaughlin (1908), 235 Ill. 367, 374.) The grantee in such a case is held to have impliedly assented to being bound by covenants which were in his deed, or in the record chain of title for the property, at the time of conveyance. Wiegman v. Kusel (1915), 270 Ill. 520, 523.

The second restrictive covenant in the present case had not been drafted or recorded when Lot 4675 was conveyed to the Catholic Bishop, and the Catholic Bishop did not enter into a subsequent contract or agreement which would have bound him or his assigns to the provisions of this document. The fact that the Bishop eventually became aware of the second document does not mean that there was a binding agreement (i.e., a meeting of the minds and a bargained-for exchange of consideration) between the Catholic Bishop and the developer concerning the second document.

Although the developer may have subjectively intended to restrict the Catholic Bishop’s use of Lot 4675, “The intention [to impose an enforceable restrictive covenant] is to be ascertained as in other cases, — not by learning some secret or unexpressed intention in the mind of [the grantor], but from the language of the deed itself, considered in connection with the circumstances existing at the time it was executed. (Hutchinson v. Ulrich, 145 Ill. 336.) The [grantee] is bound by what it had notice of, but not by secret intentions of [the grantor].” Hays v. St. Paul Methodist Episcopal Church (1902), 196 Ill. 633, 636.

The proper focus in the present case is on the objectively manifested intent of the grantor at the time Lot 4675 was conveyed to the Catholic Bishop. Accordingly, the dispositive question involves the proper interpretation of the covenant which was in the record chain of title at the time the property was conveyed to the Catholic Bishop.

Restrictions on the use of property held in fee simple are disfavored, although they are generally enforced if the parties have clearly manifested their intent. (Eckhart v. Irons (1889), 128 Ill. 568, 581.) But, “It is a well-settled rule that in construing a deed containing restrictions as to the use of property conveyed in fee, all doubts will be resolved against the restrictions and in favor of the free use of the property.” (Newton v. Village of Glen Ellyn (1940), 374 Ill. 50, 56.) See also Boylston v. Homes (1916), 276 Ill. 279, 285-86; Loomis v. Collins (1916), 272 Ill. 221, 232; accord, 7 Thompson, Real Property sec. 3160, at 109 (1962 replacement) (“Where the words of a restriction are equally capable of two or more different constructions, that construction will be adopted which least restricts the free use of the land.”).

The rule which requires courts to construe ambiguous land restrictions in favor of permitting unfettered use of property is grounded on the public policy which favors free enterprise.

“In this country real estate is an article of commerce, the uses to which it should be devoted are constantly changing as the business of the country increases, and as its new wants are developed; hence it is contrary to the wellrecognized business policy of the country to tie up real estate where the fee is conveyed, with restrictions and prohibitions as to its use, and hence, in the construction of deeds containing restrictions and prohibitions as to the use of property by a grantee, all doubts should, as a general rule, be resolved in favor of a free use of property, and against restrictions.” Hutchinson v. Ulrich (1893), 145 Ill. 336, 342.

We previously held, in Cimino I, that the restrictive covenant which runs with Lot 4675 is ambiguous because it is not clear whether the portion of the lot not used for a church could be used for any purpose, or whether it could only be used for single-family residences. The rule of strict construction which applies to covenants in deeds necessarily applies to limitations imposed by other instruments in the record chain of title, and the trial court properly construed the ambiguous restriction contained in the original document in favor of unfettered use of the property.

The second argument raised in this appeal is that the trial court “entered a judgment that went beyond the pleadings.” The amended complaint alleged that “The restrictions contained in the instrument should be construed strongly against the validity of the restrictions, with all doubts and ambiguities resolved in favor of natural rights and free use and alienation of the property. The ambiguities contained in the instrument are such as to render the purported restrictions inapplicable and unenforceable.” Plaintiff therefore prayed for a declaration that the purported restrictions on the proposed use of his property are “inapplicable and unenforceable.”

The second document was unenforceable against plaintiff because it was recorded outside the chain of title. And the trial court correctly held that the broad construction of the original document which was urged by the defendants is “inapplicable” because that document is ambiguous. We therefore find no merit in the argument that the trial court “entered a judgment that went beyond the pleadings.”

Based on the preceding reasons the judgment of the circuit court is affirmed.

Affirmed.

SULLIVAN, P. J. and MEJDA, J., concur.