author: JUSTICE STAMOS

text:
      In re ESTATE OF JOHN KNOES, Deceased.—(Richard S. Spector, Attorney in Fact for Heir Claimants Amalie Henriette Lubbe, et al., Petitioner-Appellee, v. Maryann Heidinger et al., Respondents-Appellants.)
    First District (2nd Division)
    No. 82—48
    Opinion filed April 19, 1983.
    Rehearing denied May 11, 1983.

      Lewis, Overbeck & Furman and Russell H. McBride, both of Chicago (Paul V. Esposito, of counsel), for appellants.
    Richard S. Spector, Ltd., and Gerald J. Mannix, Ltd., both of Chicago (Richard S. Spector and Gerald J. Mannix, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

This is an appeal from an order of the trial court reopening a decedent’s estate for the purpose of amending the heirship table to include heirs which were unknown to the trial court at the time that the estate was closed. The order was issued pursuant to a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72). Respondents’ contentions on appeal are that the court lacked jurisdiction to entertain the petition because the exclusive method for reopening a decedent’s estate is by petition under section 24 — 9 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. llOVz, par. 24 — 9), and that no relief could be granted under section 72 in any event because the order closing the estate was not procured by fraud and petitioner was not in the exercise of due diligence prior to the time that the estate was closed.

On March 10, 1979, John Knoes died intestate. A petition for letters of administration was filed on May 10, 1979, by respondent Maryann Heidinger, the decedent’s niece. On that day, Maryann Heidinger was appointed administrator of the estate, and the court received her testimony concerning the heirship of the decedent. That testimony was that she was the daughter of the decedent’s sister, that her maternal grandparents had each been married only once, that her mother and the decedent were the only offspring of that marriage, and that to the best of her knowledge she and her brother, respondent Hans Heidinger, were the decedent’s only niece and nephew. On June 7, 1979, the court entered an order declaring that Maryann and Hans Heidinger were the only heirs of the decedent. Notice of the decedent’s death and the opening of the estate was published in the Chicago Daily Law Bulletin.

On July 8, 1980, petitioner Richard Spector, an attorney, wrote a letter to Russell McBride, the attorney for the administrator. The letter stated that petitioner had learned from an overseas correspondent that the decedent had a sibling who was not noted in the order declaring heirship, and that that sibling had a number of children living in Germany. The letter also stated that petitioner had no detailed information concerning these potential heirs, but that he was expecting to receive powers of attorney from them at some time in the future. Petitioner asked McBride to keep him informed of further proceedings concerning the estate.

The number and the substance of the subsequent communications between petitioner and McBride is sharply disputed. McBride stated that he telephoned petitioner and informed him that the estate had been open for 14 months and that he was in the process of closing it, but that he would delay the closing in order to give petitioner time to present his claim. McBride also stated that he made several more calls to petitioner seeking more information about the claim which petitioner could not provide. Petitioner stated that he called McBride after the July 8 letter was sent, and that McBride did not tell him that the estate was about to be closed, but that McBride did tell him that he would delay the closing. Petitioner also stated that McBride made no further inquiries into the matter.

On September 11, 1980, petitioner wrote to McBride, informing him that he had received several documents pertaining to the foreign heirs and that he was waiting for an affidavit of heirship to arrive. The letter stated that when the affidavit arrived, petitioner would contact McBride to arrange for a hearing to amend the heirship table, and that in the meantime McBride was free to examine the documents which had already been received.

On October 3, 1980, the circuit court issued a citation for removal of representative returnable on November 6, 1980. The citation recited that it was issued because of the administrator’s failure to close the estate.

Petitioner stated that he called McBride on or about October 7, 1980, to inform him that the affidavit of heirship had arrived. During that conversation, McBride told petitioner that he would do nothing to jeopardize petitioner’s rights. McBride stated that this conversation never took place.

No report of proceedings was made of the November 6 hearing on the citation. McBride stated that he informed the court of petitioner’s claim at that hearing, but that the court, noting that petitioner had not filed an appearance in the case, ordered that the estate be closed. McBride then presented the administrator’s final account and the estate was closed.

Petitioner states that he first learned that the estate was closed on December 9, 1980. He filed a petition to reopen the estate on December 29, 1980. That petition was dismissed on February 9, 1981, because of a defect in the notice. On February 13, 1981, petitioner filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72, superseded without change of substance by Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401) seeking to vacate the order closing the estate. After hearing argument of counsel, the court granted the petition. The bulk of the foregoing facts were gleaned from the argument of counsel at that hearing, as no testimonial proceedings relevant to this appeal were conducted in the trial court.

Respondents appeal from the order vacating the order which closed the estate, contending that: (1) the court lacked subject matter jurisdiction to reopen the estate pursuant to section 72, because section 24 — 9 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. llO1^, par. 24 — 9) sets forth the only circumstances under which an estate may be reopened, and an estate may not be reopened for purposes of amending the heirship table under that section, and (2) even if section 72 may be utilized to reopen an estate, no relief under that section was available to petitioner because the order closing the estate was not procured through fraud, and petitioner was not in the exercise of due diligence in seeking to present his claim to the court prior to the entry of the order closing the estate.

The central question presented by this case is whether section 24 — 9 of the Probate Act of 1975 is the exclusive statutory authority for the reopening of a decedent’s estate. If it is concluded that section 24 — 9 is an exclusive provision, then it must be concluded that the court lacked subject matter jurisdiction to reopen the estate under section 72.

Section 24 — 9 provides in pertinent part:

“If a decedent’s estate has been closed and the representative discharged, it may be reopened to permit the administration of a newly discovered asset or of an unsettled portion of the estate on the petition of any interested person.” Ill. Rev. Stat. 1981, ch. llO1^, par. 24 — 9.

Section 24 — 9 allows the trial court to reopen an estate only when one of the two circumstances enumerated in that section is present. (See In re Estate of Kuntz (1968), 98 Ill. App. 2d 367, 370, 240 N.E.2d 448 (construing section 308a of the former Probate Act (Ill. Rev. Stat. 1967, ch. 3, par. 308a), now codified as section 24 — 9 without change of substance); see also In re Estate of Bilotti (1978), 56 Ill. App. 3d 552, 554-55, 372 N.E.2d 122, aff’d sub non. Commercial Na tional Bank v. Bruno (1979), 75 Ill. 2d 343, 349, 389 N.E.2d 163.) The amendment of the heirship table does not fall within the purview of section 24 — 9, and the court is not authorized to reopen the estate under that section to entertain the claims of newly discovered heirs. Commercial National Bank v. Bruno (1979), 75 Ill. 2d 343, 349, 389 N.E.2d 163.

Appellant contends not only that section 24 — 9 is limited to the two situations which it sets forth, but that those two situations are the only situations in which an estate may be reopened, and that therefore the court is not authorized to utilize section 72 to reopen an estate. While there are several cases in which a party has sought to reopen an estate under section 72, none of those cases pass specifically on the propriety of using a section 72 petition for that purpose.

In Commercial National Bank v. Bruno (1979), 75 Ill. 2d 343, 349, 389 N.E.2d 163, the defendant bank was the administrator of the decedent’s estate. The bank had notice of several foreign heirs which it made no attempt to locate. Nine months after the estate was closed, the foreign heirs filed a section 72 petition to vacate the order closing the estate and a petition for citation praying that the bank produce the share of the estate which should have been distributed to them. The trial court denied the section 72 petition and reopened the estate under section 24 — 9 on its own motion. No appeal was taken from the denial of the section 72 petition. Our supreme court held that the estate could not be reopened under section 24 — 9 because there were no newly discovered assets or unadministered portions of the estate. The court held, however, that the foreign heirs were entitled to restitution from the bank, and the case was remanded for a hearing on the petition for citation which the court regarded as still pending in the trial court. Justice Moran, dissenting in part, observed that those citation proceedings were ancillary to the section 72 petition, and that the dismissal of that petition left nothing pending in the trial court. (75 Ill. 2d 343, 352.) The court did not intimate that a section 72 petition could not be used to reopen an estate to entertain the claims of newly discovered heirs. The petition, of course, was not before the court, but we note that the appellate court opinion which was affirmed in Bruno (In re Estate of Bilotti (1978), 56 Ill. App. 3d 552, 372 N.E.2d 122) held that section 24 — 9 did not limit the jurisdiction of the court to reopen an estate, but merely set forth conditions precedent which must occur before an estate may be reopened under that section. 56 Ill. App. 3d 552, 555.

The other appellate panels which have reviewed cases involving section 72 petitions which sought relief from an order closing an estate have uniformly treated the petition as having been properly brought, while finding defects in the petition which required its dismissal. In Estate of Arcicov (1968), 94 Ill. App. 2d 122, 236 N.E.2d 365, the court stated the view that a section 72 petition is an appropriate vehicle for reopening an estate to amend the heirship table (94 Ill. App. 2d 122, 126), but held that the two-year limitations period of section 72 begins to run when the estate is closed, and that therefore the petition in that case, which was brought five years after the closing of the estate, was untimely. In In re Estate of Zeno (1972), 4 Ill. App. 3d 137, 280 N.E.2d 504, the trial court dismissed the petition after refusing to hear evidence going to whether the order closing the estate had been procured by fraud. The court relied on Arcicov for the proposition that the petition was properly brought and reversed and remanded the case for a new hearing on the petition. Finally, in In re Estate of Rudder (1979), 78 Ill. App. 3d 517, 397 N.E.2d 556, the petitioner was an acknowledged illegitimate child of the decedent who brought a section 72 petition to reopen her father’s estate one month after Trimble v. Gordon (1977), 430 U.S. 762, 52 L. Ed. 2d 31, 97 S. Ct. 1459, was decided. She contended that under that decision she was entitled to a full child’s share of the estate despite the fact that the estate was closed before Trimble was decided. The court treated the petition as an appropriate vehicle for the assertion of the petitioners’ claim, but held that Trimble could not be applied retroactively and that therefore the petitioner could not show a meritorious claim or defense which would justify the court in granting section 72 relief. 78 Ill. App. 3d 517, 520-21.

Against this background, respondents forcefully contend that section 24 — 9 sets forth the jurisdictional limits of the court’s authority to reopen an estate, and that those limits cannot be circumvented by the use of section 72. Respondents liken section 24 — 9 to section 8 — 1 of the Probate Act of 1975, which provides that a petition to contest the admission of a will to probate may be brought within six months after the admission of the will. (Ill. Rev. Stat. 1981, ch. IIOV2, par. 8 — 1.) This provision has been construed as posing an absolute jurisdictional bar beyond which no will contest may be entertained by the court. (See Julia Rackley Perry Memorial Hospital v. Peters (1980), 81 Ill. App. 3d 487, 489, 401 N.E.2d 587.) Accordingly, actions in the nature of a will contest which are commenced more than six months after the admission of the will to probate are barred even though they are presented to the court in the form of a section 72 petition (see Ruffing v. Glissendorf (1968), 41 Ill. 2d 412, 415-16, 243 N.E.2d 236) or a complaint for declaratory judgment. See In re Estate of Moers chel (1980), 86 Ill. App. 3d 482, 483, 407 N.E.2d 1131.

In In re Estate of Kuntz (1968), 98 Ill. App. 2d 367, 240 N.E.2d 448, the court interpreted the statutory provision that preceded section 24 — 9 (Ill. Rev. Stat. 1967, ch. 3, par. 308a) as limiting the court’s jurisdiction to reopen an estate under that section to situations involving newly discovered assets or unadministered portions of the estate. The court expressed no view as to whether jurisdiction to reopen an estate could be derived from any other statutory provision, and there appears to be no case which holds that section 24 — 9 is the only statutory provision under which an estate may be reopened. The court in In re Estate of Bilotti (1978), 56 Ill. App. 3d 552, 372 N.E.2d 122, aff’d sub nom. Commercial National Bank v. Bruno (1979), 75 Ill. 2d 343, 389 N.E.2d 163, rejected the Kuntz court’s analysis concerning the jurisdictional effect of section 24 — 9, holding that that section merely sets forth conditions precedent to the bringing of a petition under that section.

In contrast to the court’s limited power to entertain a will contest under section 8 — 1, the court may entertain a claim of heir-ship at any time during the administration of the estate. (Ill. Rev. Stat. 1981, ch. IIOV2, par. 5 — 3(a).) The purpose of a section 72 petition is to bring before the court matters of fact which are not of record and which, had they been known to the court, would have prevented the rendition of the judgment from which relief is sought. (Federal Sign & Signal Corp. v. Czubak (1978), 57 Ill. App. 3d 176, 181, 372 N.E.2d 965.) The fact that all of a decedent’s heirs are not included in the heirship table is certainly a fact of the type that would prevent the rendition of an order closing the estate. Therefore, we hold that a section 72 petition is a proper vehicle by which to obtain relief from an order closing an estate.

However, the section 72 petitioner is required to act with due diligence, not only in bringing the petition, but in seeking to bring his claim or defense before the court. (Taxman v. Health & Hospital Governing Com. (1980), 83 Ill. App. 3d 499, 501, 404 N.E.2d 419.) In the instant case, petitioner had knowledge of the foreign heirs for four months before the estate was closed, and had affidavits of heirship in his possession for at least a month prior to the closing of the estate. During this time petitioner did not file an appearance or personally attempt to apprise the court of the existence of the foreign heirs. Because no appearance was filed, he was not entitled to notice of any proceedings with respect to the estate. A section 72 petitioner generally has the duty to follow his own case. Schiffman v. Bowman (1980), 88 Ill. App. 3d 766, 769, 411 N.E.2d 71.

In the typical case, petitioner might well be found to be precluded from section 72 relief because of a lack of diligence in presenting his claim to the court before the rendition of the final judgment. This case differs from the typical case in one crucial respect. Here, the parties asserting that petitioner’s lack of diligence is a bar to relief are not only the sole declared heirs of the estate; one of those parties is the administrator. The relationship of an administrator and the heirs of an estate is fiduciary in character. (See In re Estate of Storer (1971), 131 Ill. App. 2d 1049, 1054, 269 N.E.2d 352.) The administrator does not stand in an adversarial posture with possible unknown heirs of the estate, and the administrator’s attorney is not engaged in an adversarial matter when he deals with the representative of heirs which may have been overlooked when the heirship table was originally presented to the court.

It is well settled that the requirement of due diligence need not be rigidly enforced where unconscionable behavior is shown. (See, e.g., Department of Public Works & Buildings v. O’Hare International Bank (1976), 44 Ill. App. 3d 934, 937, 358 N.E.2d 1308.) Even in adversarial matters, the giving of notice of a judgment more than 30 days after its rendition has been held to cast a cloud over the proceedings which the court may consider when passing on the sufficiency of a section 72 petition. See George F. Mueller & Sons, Inc. v. Ostrowski (1974), 19 Ill. App. 3d 973, 979-80, 313 N.E.2d 684.

In the instant case, it is undisputed that McBride made no attempt to inform petitioner of the closing of the estate until more than 30 days after the rendition of the judgment. McBride, as the attorney for one who had a fiduciary duty to see that the estate was distributed to all who had an interest in it, was obligated to be a good deal more solicitous of the rights of possible heirs. McBride’s failure to at least inform petitioner that the estate was closed immediately after the rendition of the order obviates any need for us to inquire into questions concerning petitioner’s diligence. That failure alone requires that the estate be reopened as a matter of fairness and good conscience.

For the reasons expressed herein, the judgment of the trial court is affirmed.

Affirmed.

PERLIN and HARTMAN, JJ., concur.

      Now codified without change of substance at Ill. Rev. Stat. 1981, ch. 110, par. 2-1401.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JIMMIE LEE TAYLOR, Defendant-Appellant.
    First District (1st Division)
    No. 81—359
    Opinion filed April 18, 1983.
    James J. Doherty, Public Defender, of Chicago (Aaron L. Meyers, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Gregory G. Thiess, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, Jimmie Lee Taylor, appeals from his conviction in a jury trial of delivery of a substance purported to be a controlled substance and unlawful use of weapons. Defendant was sentenced to two concurrent maximum extended terms of 10 years. On appeal, defendant raises two issues: (1) whether the statute prohibiting delivery of a substance represented as a controlled substance (Ill. Rev. Stat. 1979, ch. 56V2, par. 1401) is unconstitutional, and (2) whether the sentence imposed resulted from the consideration of improper factors and is an abuse of discretion.

Defendant was charged with delivery of a purported controlled substance, unlawful use of weapons, armed robbery and armed violence. An undercover narcotics officer testified at trial that he met with defendant and arranged to purchase cocaine from the defendant. In fact, defendant delivered a packet of flour containing no controlled substance. In the course of the delivery of the purported controlled substance defendant displayed a handgun and demanded payment. The jury convicted defendant of delivery of a purported controlled substance and unlawful use of weapons.

Defendant contends that the statute prohibiting delivery of a substance purported to be a controlled substance (Ill. Rev. Stat. 1979, ch. 56V2, par. 1404) is an unconstitutional deprivation of due process under the Illinois Constitution (Ill. Const. 1970, art. I, sec. 2) because it established a greater punishment for delivery of an uncontrolled substance than the punishment imposed for delivery of actual controlled substances listed in schedules IV and V (Ill. Rev. Stat. 1979, ch. b&k, pars. 1401(e), (f)). The above offenses are all Class 3 felonies. Additionally, however, a person convicted of delivery of a purported controlled substance may be fined up to $15,000, while delivery of a schedule IV or V controlled substance is punishable by a fine of up to $10,000 or $5,000 respectively. Further, defendant contends that notwithstanding the disparate fines, punishing delivery of an uncontrolled substance with equal severity to the delivery of a controlled substance violates the Illinois Constitution.

Defendant relies upon the supreme court decisions People v. Wagner (1982), 89 Ill. 2d 308, 433 N.E.2d 267, and People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029. In Wagner the court declared unconstitutional the statute prohibiting delivery of a substance purported to be a controlled substance (Ill. Rev. Stat. 1977, ch. SWIz, par. 1404), within an earlier version of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. S&lz, par. 1100 et seq.). That version of the Act punished delivery of a purported controlled substance, a Class 3 felony, more severely than delivery of a schedule IV or V controlled substance, a Class 4 felony. Ill. Rev. Stat. 1977, ch. 56V2, pars. 1401(e), (f).

The supreme court in Wagner applied the rationale of People v. Bradley. The Bradley court recognized that the legislature, under the State’s police power, has wide discretion to fix penalties for defined offenses. The exercise of this discretion, however, is subject to constitutional prohibition against a denial of due process of law. Due process under the Illinois Constitution has been interpreted to require that a statute in exercise of the State’s police power must be reasonably designed to remedy the evils which the legislature has determined to be a threat to public health, safety and general welfare. Bradley held that since the legislature clearly intended to punish those who traffic in drugs more severely than those who merely possess drugs, a statute which established a more severe penalty for possession of certain controlled substances than was established for delivery of those same substances was “not reasonably designed to remedy the evil which the legislature determined to be a greater threat to the public” (79 Ill. 2d 410, 418, 403 N.E.2d 1029, 1032) and, therefore, violated the due process clause of the Illinois Constitution. (Ill. Const. 1970, art. I, sec. 2.) The Wagner court followed Bradley to determine that it was also unconstitutional to punish the less serious offense of delivery of a noncontrolled substance more severely than the more serious offense of delivery of a controlled substance.

In 1979, the legislature amended the Illinois Controlled Substances Act to increase the penalty for delivery of a schedule IV or V controlled substance to a Class 3 felony, while maintaining the maximum fine of $10,000 and $5,000 respectively. (Ill. Rev. Stat. 1979, ch. 56x/2, pars. 1401(e), (f).) Subsequently, two Illinois cases have considered whether the amendments cure the constitutional defects under Wagner. People v. Johnson (1982), 106 Ill. App. 3d 759, 436 N.E.2d 757, appeal denied (1982), 91 Ill. 2d 576; People v. Burks (1982), 108 Ill. App. 3d 433, 438 N.E.2d 1376.

In People v. Johnson, the Third District held that under the amended sentencing provisions of the Illinois Controlled Substances Act, section 404 no longer constituted a violation of due process. The court noted that meticulous exactitude was not required in making legislative classifications and that the legislature was in a superior position to that of the court to make classifications with respect to the seriousness of offenses. The court further noted that only the manufacture and delivery of relatively less dangerous schedule IV and V controlled substances are Class 3 felonies. The court interpreted Wagner not to require a disparity in sentencing in favor of section 404 violators. The court also held that the disparity between the potential fines for section 404 and sections 401(e) and (f) was not sufficient alone to declare the amended section 404 unconstitutional.

The Fourth District, in People v. Burks, declined in part to follow the Johnson decision. Burks was convicted of a violation of section 404 and sentenced to a four-year prison term and fined $2,500. With respect to the sentencing provision of section 404, the court held that equal punishment for delivery of a purported controlled substance and delivery of a schedule IV or V controlled substance was not constitutionally defective. The court determined that it was not so irrational nor an obvious mistake of the legislature to “punish delivery of a substance represented to be a controlled substance as severely as delivery of the real thing.” 108 Ill. App. 3d 433, 436, 438 N.E.2d 1376, 1378.

With respect to the fine provision of section 404, Burks held that section 404 was still unconstitutional under Wagner because it provides for a more severe penalty than is provided for the more serious offense in sections 401(e) and (f). The court reasoned, however, that the invalid fine provision may be severed from the rest of section 404 since the remaining provision was complete in itself and capable of being executed independently of the fine provision. (City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 490, 338 N.E.2d 19, 23-24.) Accordingly, the court affirmed Burks’ sentence but vacated the $2,500 fine.

In our original disposition of this case, we held first that defendant was not in a position to challenge the constitutionality of the fine provision since defendant was not sentenced under that provision nor in any way aggrieved by its operation. People v. Mayberry (1976), 63 Ill. 2d 1, 6, 345 N.E.2d 97, 100, cert. denied (1976), 429 U.S. 828, 50 L. Ed. 2d 92, 97 S. Ct. 87; People v. Johnson (1952), 412 Ill. 109, 105 N.E.2d 766, cert. denied (1952), 344 U.S. 858, 97 L. Ed. 666, 73 S. Ct. 98.

Secondly, we followed the Johnson and Burks decisions and held that the equal classification of section 404 and sections 401(e) and (f) as Class 3 felonies is not so irrational or arbitrary as to be invalid under the due process clause of the Illinois Constitution. The legislature, in the exercise of the State’s inherent police power has wide discretion to classify the threat posed to public welfare by fixing the penalties for various offenses. Legislative enactments, however, must be reasonably designed to remedy the evils which the legislature has determined to be a threat to public health, safety and general welfare. (Bradley.) When the legislature amended the sentencing classification of sections 401(e) and (f) by increasing these offenses to Class 3 felonies while not disturbing section 404 classification, the legislature “has expressed its finding that the delivery of ‘look-alike’ drugs is as harmful as the manufacture or delivery of schedule IV or V controlled substances.” (People v. Johnson (1982), 106 Ill. App. 3d 759, 766, 436 N.E.2d 757, 764.) The legislature is in a position superior to that of the judiciary to evaluate the harm posed by traffic in substances represented to be controlled substances. Wagner does not require that section 404 violators be given a more lenient sentence than those convicted under sections 401(e) and (f). Indeed, in Bradley, the supreme court held that provisions of the Illinois Controlled Substances Act which punished possession of a Schedule II or III controlled substance with equal severity to the punishment of delivery of these same substances did not offend due process. (79 Ill. 2d 410, 419, 403 N.E.2d 1029, 1033.) Just as Bradley held that it is constitutionally permissible to establish an equal punishment for the lesser offense of possession as is established for the greater offense of delivery, so too it is permissible to establish an equal punishment for the lesser offense of delivery of a purported controlled substance as is established for the greater offense of delivery of a controlled substance.

Subsequent to our original disposition of this case, the supreme court considered the constitutionality of section 404 under arguments not raised by defendant before us. (People v. Manuel (1983), 94 Ill. 2d 242.) In Manuel the defendants argued that they could not be convicted under section 404 because section 404 had never been amended or re-enacted since the time that the court had held that it was unconstitutional in Wagner. The Manuel court held that when a statute is found unconstitutional in its entirety, it is void ab initio and the fortuitous effect of the amendment to sections 401 and 402 which remedied the unconstitutional disparity in penalties does not operate to revive section 404. (94 Ill. 2d 242, 244-45.) The court noted that if the legislature had amended section 404, as it now has (Pub. Act 82— 968, eff. Sept. 7, 1982), “we would then have been in a position to examine anew its validity within what would then be a new statutory scheme.” (94 Ill. 2d 242, 245.) Since section 404 had not been amended at the time that the defendants committed the offenses in question, Wagner precluded their prosecution. The court also expressly disapproved of the Johnson decision to the extent that it is inconsistent with Manuel. At the time of defendant’s offense section 404 had not been amended and we find, therefore, that the supreme court’s decisions in Manuel and Wagner require the reversal of defendant’s conviction for delivery of a substance purported to be a controlled substance and his sentence with respect thereto.

The second issue raised by defendant is whether the sentence imposed by the trial court resulted from a consideration of improper factors and was an abuse of discretion. Defendant contends that the trial court incorporated the armed robbery and armed violence charges into his sentencing determination even though defendant was acquitted of those charges. During the sentencing hearing the trial judge commented on the severe sentence to which defendant would have been subject if defendant had been convicted of armed robbery and armed violence. The trial judge stated:

“Were it not for that jury verdict or verdicts of not guilty, it’s very possible Mr. Taylor would never, ever come out of the penitentiary alive. He’d get that much time.
I think, he deserves it. He’s been in the penitentiary four times, violation of probation, and violation of parole each and every time and almost each and every time he’s been put on probation or parole.”

Defendant argues that this comment indicates that the trial judge relied upon this factor in his sentencing.

The State contends that the judge’s comments when read in their entirety clearly indicated that the trial judge did not consider the acquitted offenses in determining defendant’s sentence. The State argues that the fact that the court relied upon proper factors in sentencing defendant may be seen from the court’s repeated reference to defendant’s record, such as:

“*** [defendant] has been consciously disregarding the laws of this State for a very, very long time, over ten years.
He has by his record, which is horrendous, indicated a probability of continuing to disregard the laws of this State.
He has according to our laws, specifically Chapter 38, 1005— 3.2 [sic] qualified himself for an extended term.”

The trial court is normally the proper forum in which a suitable sentence may be determined and the trial judge’s decisions in regards to sentencing are entitled to great deference and weight. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) The Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1001 — 1—1 et seq.) “vests a wide discretion in sentencing judges in order to permit reasoned judgments as to the penalty appropriate to the particular circumstances of each case.” (People v. La Pointe (1982), 88 Ill. 2d 482, 492, 431 N.E.2d 344, 348.) Absent an abuse of discretion by the trial court, a sentence may not be altered upon review. Perruquet.

Defendant relies upon People v. Hammock (1979), 68 Ill. App. 3d 34, 385 N.E.2d 796, and People v. Vaughn (1978), 56 Ill. App. 3d 700, 371 N.E.2d 1248. In both of these cases the appellate court reduced the sentence imposed by the trial court because the trial court abused its discretion by relying upon improper factors or incompetent evidence in determining the appropriate sentence. In the case at bar, however, the trial judge’s comments at sentencing do not indicate that he relied upon the acquitted offenses in determining the sentence for defendant. A review of the court’s comments during the sentencing hearing indicates that the court considered defendant’s long criminal record and defendant’s numerous violations of probation and parole in deciding to sentence defendant to an extended term. We are not convinced that the trial judge considered the acquitted charges as one of the factors in its determination of defendant’s sentence.

Lastly, defendant prays that in the event that we reverse his conviction for delivery of a purported controlled substance, we remand his conviction of unlawful use of weapons for resentencing. Defendant argues that when there is a possibility that a now-reversed conviction may have influenced the trial judge’s sentencing decision on other convictions, the remaining convictions should be remanded for a new sentencing hearing. (People v. Alejos (1982), 104 Ill. App. 3d 414, 432 N.E.2d 1046.) We note that both offenses of which defendant was convicted are Class 3 felonies (Ill. Rev. Stat. 1979, ch. 56V2, par. 1404; Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(b)), and that the trial judge sentenced defendant to a 10-year maximum extended term for each offense. From the trial judge’s comments at sentencing it is evident that the defendant’s long record was crucial to the judge’s decision to impose a 10-year extended term. Under the facts of this case, we are not persuaded that the defendant’s conviction under section 404 influenced the trial judge’s sentencing decision on the unlawful use of weapons conviction.

Accordingly, for the reasons stated herein, defendant’s conviction for delivery of a substance represented as a controlled substance is reversed. In all other respects, the judgment of the circuit court of Cook County is affirmed.

Reversed in part, and affirmed in part.

GOLDBERG and O’CONNOR, JJ., concur.


author: PRESIDING JUSTICE WILSON

text:
    ROBERT J. NYE, Plaintiff-Appellee, v. PARKWAY BANK & TRUST COMPANY, Defendant-Appellant.
    First District (5th Division)
    No. 81—2817
    Opinion filed April 15, 1983.
    Arnold I. Kramer, of Chicago, for appellant.
    Van Emden, Busch & Van Emden, of Chicago (George J. Van Emden, of counsel), for appellee.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court;

This action arises out of an alleged contract for legal services by and between Robert J. Nye, attorney, and C. Frederick Potter, as president and chief executive officer of Parkway Bank and Trust Company (Parkway), Harwood Heights, Illinois. In March 1974, Parkway allegedly retained Nye as legal counsel in respect to an action entitled Stavros v. Karkomi, 70 CH 5070, and continued to retain Nye for the subsequent appeal. When Nye did not receive payment in full for services rendered, he filed a complaint requesting attorney fees in the amount of $13,944.73. Parkway answered by denying that it had retained Nye as legal counsel in the Stavros II matter, and consequently, denied owing Nye payment for services rendered. At trial, Nye was called on his own behalf as the first -witness. After cross-examination of Nye, but before plaintiff rested his case and before defendant had the opportunity to present his defense, the trial court entered judgment for plaintiff in the amount of $6,919.88. Defendant’s timely appeal followed.

The issues before this court are: (1) whether the trial court violated defendant’s due process rights when it rendered judgment without allowing defendant the opportunity to present its defense; (2) whether, in an action for attorney fees, the mere allegation of an account stated is sufficient to allege the liability of a client; and (3) whether a client is bound to pay for the services of an employee of the attorney he hired when he did not give his consent for that employee to perform services for him. For the reasons that follow, we reverse and remand the trial court’s decision on the ground that defendant was denied its constitutional due process rights by the manner in which the trial court conducted the proceedings below.

Opinion

The procedural, aspects of due process and equal protection of the laws require that a person be given notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the case. (City of Chicago v. Cohn (1927), 326 Ill. 372, 374-75, 158 N.E. 118.) In Pettigrew v. National Accounts System, Inc. (1966), 67 Ill. App. 2d 344, 351, 213 N.E.2d 778, the court stated:

“A fundamental requisite of procedural due process is that every man shall have the protection of his day in court and the benefit of an orderly proceeding according to the general law or established rules; and that the hearing shall not be arbitrary, but rather shall afford to him an opportunity to be heard in his defense and shall assure to him an inquiry on the issues of the case, wherein judgment is rendered only after trial.”

Applying the aforementioned standards to the case at bar, we find that Parkway was not afforded procedural due process as guaranteed by section 1 of amendment XIV of the Federal Constitution and section 2 of article II of the Illinois Constitution. The record is replete with examples of a trial procedure so lacking in the fundamental principles of our system of justice that the procedure must be condemned as a denial of due process rights.

First, trial commenced by order of the court before arrival of the requested court reporter, resulting in an incomplete record for appeal. During oral argument, appellant explained that because the official court reporters had gone for the day, he had ordered a private court reporter. After waiting approximately 10 minutes for the reporter to arrive, the court ordered that the proceedings begin. As a result, the transcript before this court commences a few minutes into the direct examination of Nye, the first witness.

Subsequently, during cross-examination regarding several folders introduced into evidence purported to contain all the work done on Stavros II, defense counsel cross-examined plaintiff in an effort to obtain a breakdown of the individual elements necessary to prove up a claim for attorney fees. (Tippet v. Tippet (1978), 65 Ill. App. 3d 1018, 1021, 383 N.E.2d 13.) At this point the following colloquy ensued:

“MR. KRAMER: Why don’t you prove up the elements of time and hours worked.
THE COURT: You have to do it in a case of this sort for Attorney’s Fees, that is clearly the criteria and you haven’t done that, yet and that is for me to decide. I am not interested in wasting a lot of time as far as going through each and every one of these things. This is a high volume court, we are going to dispose of this case before noon, I guarantee you.”

Not only was there an arbitrary time limit put on the proceeding, but it appears that the trial court was erroneously transferring the burden of proving the elements of an action for attorney fees to defendant.

Thereafter, during further cross-examination of plaintiff regarding his disbursal of payments made by Parkway, the court stated:

“THE COURT: You have forty-five minutes to go into what he did or didn’t, involving Parkway.
MR. KRAMER: That is what I am doing.
THE COURT: You now raise that for the first time.
MR. KRAMER: Every time I showed him a payment.
THE COURT: You tried, you haven’t been very successful.
MR. KRAMER: If he would be more responsive.
THE COURT: It is not a problem of him being responsive, get to the point, I would like to hear it. Now what it is [sic], if you don’t stop wasting my time and everybody else’s time.”

Lastly, after an exchange between the court and the witness regarding frequency of billing to Parkway and subsequent payments received, the court stated:

“All right. I am certainly not going to play ring-around-the-rosie all day, you may want to do that but it is not going to be with me sitting here. I heard enough and I am going to make a judgment in favor of the Plaintiff and against the Defendant for six thousand nine hundred and nineteen dollars and eighty-eight cents. I have to be reasonable under the circumstances.”

When defense counsel objected, stating that the case was not concluded regarding his defense, the following colloquy ensued:

“THE COURT: The case is over, I said it was over.
MR. KRAMER: Without giving us an opportunity to present anything?
THE COURT: I gave you an opportunity to present something.
MR. KRAMER: It is still his Case in Chief.
THE COURT: This is a high volume Court, Counsel, we don’t have time, we can’t spend three days going over. You should have tried it in some other Court than a High Volume Court, you should have made a request for that. We have ninety, a hundred, a hundred and twenty cases a day, we can’t spend two days or even as much as two hours on any one case, that is as much time as there is available.
MR. KRAMER: I understand.
THE COURT: There is no reason, I am from downstate and I come up here on assignment and I hear these cases and we have got to get them out. I gave you every opportunity to make your point but to go around and around and around in circles, I heard enough, I feel I made the proper decision and Justice has been done ***.
* * *
MR. KRAMER: Your Honor is not permitting the Defendant to put on any defense?
THE COURT: I have already entered Judgment. Take whatever steps you want to.”

Based on the aforementioned, the conclusion is inescapable that the trial court heard no evidence from defendant as to the reasonable value of services rendered to Parkway, but rather accepted plaintiff’s own estimate of the value of his services, an estimate that, by plaintiff’s own admission, was inaccurate in its original form, and, in our opinion, was insufficiently documented in its amended form. Case law is unequivocal that a judgment for unliquidated damages cannot be entered without establishing the fair amount of these damages. (Stickler v. McCarthy (1965), 64 Ill. App. 2d 1, 23, 212 N.E.2d 723.) Without question, this was not done in the case at bar.

It is our opinion that defendant was deprived of the protection of his day in court when he was not given the opportunity to be heard in his defense, a basic principle provided for by our constitutional mandates and consistent with the fundamental concept of an equitable judicial system. (Clements v. Schless Construction Co. (1967), 91 Ill. App. 2d 19, 23, 234 N.E.2d 578.) This determination that the proceedings below were a denial of procedural due process obviates the need to consider the other substantive matters raised by the parties. Accordingly, the judgment of the circuit court of Cook County is reversed and the cause remanded for a new trial.

Reversed and remanded.

LORENZ and MEJDA, JJ., concur.

      The record, at best, is circumlocutory and contradictory regarding the retention of Nye’s legal services. Arnold Kramer, defense counsel in the instant case, is general counsel for Parkway. Occasionally, acting as agent for Parkway, Kramer retains Nye either as co-counsel or sole counsel to represent Parkway in certain legal matters. When Nye performs legal services for Parkway, it is his practice to bill Parkway directly and send copies of the billing to Kramer. Payment is generally received from Kramer. In addition to the Parkway account, the record indicates that Nye also has an open account for Kramer, individually. Whether this account is for services rendered to Kramer, personally, or for services rendered to clients of Kramer is unclear.
      In August 1971, Kramer retained Nye as co-counsel for the original Stavros cause of action (Stavros I). Although Stavros I has been resolved, there remains a balance due on Kramer’s personal account with Nye for services rendered. The cause of action for which Nye is currently seeking attorney fees (Stavros II) arose subsequent to and is independent from Stavros I. Again, Nye represented Parkway in the Stavros II matter at Kramer’s request. A confirmation letter formally retaining Nye was written by C. Frederick Potter, as president and chief executive officer of Parkway. Pursuant to practice, bills for services rendered on the Stavros II matter were sent directly to Parkway and periodic payments were made for Parkway by Kramer.
      To further add to the factual morass of the case at bar, the record indicates that Parkway was not at any time a party-defendant in Stavros II. Rather, it was a respondent to a motion seeking enforcement of a judgment against a land trust for which Parkway is trustee and Kramer is a beneficiary.

      Although the complaint stated an amount due of $13,944.73, Nye admitted at trial that this amount was incorrect for two reasons: (1) Nye had originally quoted Kramer an hourly fee of $60; however, Nye inadvertently charged $75 per hour at various times and, thus, a credit was due; and (2) Nye did not credit the Parkway account for a payment received before the complaint was filed. As a result, the amount due was amended at trial, without prior notice to defendant, to $6,919.88. At this juncture, we wish to express our concern over the blatant disregard for accuracy of pleadings which Nye has demonstrated. At trial, Nye admitted that he had received a payment on the account prior to filing the complaint which he simply did not take into consideration, yet he offered no explanation for his inaction. It strikes us as highly irregular and inequitable to expect a defendant to prepare a defense against accusations known to be untrue by the accuser.

      We find plaintiff's argument that the issue of proof cannot be raised because the record is incomplete irrelevant to the due process issue upon which our determination is made. However, such an argument highlights the legal repercussions of an incomplete transcript, and, in so doing, also highlights the inequity of proceeding without a court reporter when one was specifically ordered.

      Incredibly, Nye’s testimony revealed that payments sent from Kramer to be applied to Parkway’s account were indiscriminately applied in whole or in part by Nye to Kramer’s personal account. Thus, clarification of this apparent misapplication of payments was imperative to a resolution of the matter before the court.


author: JUSTICE McGLOON

text:
    ROSEHILL CEMETERY COMPANY, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.—(Arcadia Terrace et al., Intervening Defendants.)
    First District (1st Division)
    No. 82—198
    Opinion filed April 18, 1983.
    Stanley Garber, Corporation Counsel, of Chicago (Jerome A. Siegan and Philip L. Bronstein, Assistant Corporation Counsel, of counsel), for appellant.
    Robert Marks, of Marks, Marks and Kaplan, Ltd., of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

The city of Chicago appeals from a judgment declaring an amendatory zoning ordinance void. On appeal, the city contends the judgment is against the manifest weight of the evidence.

We affirm.

On November 7, 1980, plaintiff Rosehill Cemetery Company filed a declaratory judgment action against the city of Chicago challenging a zoning amendment which reclassified a portion of plaintiff’s property from an R-4 multiple-family residential district to an R-l single-family residence district. On June 11, 1981, Neighbors of Arcadia Terrace, a homeowners association consisting of persons living within 250 feet of the subject property, filed a petition for leave to intervene. The petition was granted, and the intervenors adopted the city’s answer to the complaint.

Prior to trial, plaintiff, the city and the intervenors stipulated to the following evidence. Plaintiff operates a public cemetery consisting of 350 acres located in two separate parcels. Parcel A, the subject of litigation, consists of about 325 acres. It is bounded by Peterson Avenue on the north, the west line of the Chicago and Northwestern Railroad right-of-way on the east, and North Western Avenue on the west. The south side of the parcel is bounded by West Bryn Mawr Avenue, North Damen Avenue, North Bowmanville Avenue, and West Balmoral Avenue. Parcel B lies north of Peterson Avenue and consists of 25 acres. At all times since the adoption of the Chicago Zoning Ordinance of 1957 until the amendment in question was adopted, the property was zoned R-4. Among permitted uses under an R-4 classification are multifamily residences, apartment hotels, colleges and universities, housing for the elderly, and uses permitted under R-l and R-3 classifications. R-l, R-3, and R-4 classifications permit cemetery operations.

The parties further stipulated that the alderman of the ward in which the cemetery is located introduced the zoning amendment. The amendment did not affect plaintiff’s property lying north of Peterson Avenue or other neighboring properties. The proposed amendment was submitted to the department of planning, city and community development which recommended that the amendment not be adopted. The ordinance was passed by the city council on September 24, 1980.

From January 1976 through and including December 1980, plaintiff sold 71,000 square feet of land for grave sites. The sale of graves totalled 7,511 square feet from January through July 31, 1981. On December 31, 1980, 2,728,191 square feet of the subject property remained unsold, and 1,091,421 square feet had been platted for grave sites. The parties stipulated that the platted property could be used for burial purposes only. The city stipulated that the remaining vacant, unplatted land, located in three separate sections of parcel A, could be sold and used for other purposes. The intervenors would not stipulate to this latter fact.

At trial, plaintiffs witness Robert Gillette, president, treasurer, and member of the board of directors of Rosehill, testified that 80-85% of the unplatted land fronted Western Avenue. Several three-story apartment buildings and a large car dealer lot are located on the north side of Peterson Avenue. South of parcel A is a city ward office and a large garage for garbage trucks. None of the surrounding property uses interferes with cemetery operations.

Based on the sale of burial plots in 1981, Gillette projected that it would take 76 years to sell the land already platted as individual grave sites and an additional 91 years to sell the unplatted section for such use. Using 1980 statistics, Gillette determined that the platted and unplatted land would be sold in 212 years. Based on his experience as an officer of Rosehill and his knowledge of various sociological factors, he believed that the future annual sale of grave sites would be no greater than the annual average of the past five years. Gillette further testified that the areas already platted of record for grave sites could not, under the company charter, be used for any other purpose. If the unplatted sections are used for other purposes, the cemetery property will be separated by the existing dense trees or new landscaping, if necessary.

Gillette further testified that Rosehill had entered into a contract with Jewel Tea Company whereby Jewel had an option to purchase 15.1 acres of the subject property fronting Western Avenue. The contract was contingent on Jewel’s ability to obtain a planned development classification for the site. In August 1980, Jewel withdrew its request for the zoning classifiction from the city.

Rolf C. Campbell, a city planner and zoning consultant, described the uses and zoning of property surrounding the cemetery. He testified that property north of Peterson Avenue is used for commercial and multifamily residential purposes. A six- to eight-story senior citizens home is under construction near the northeast comer of the cemetery. Industrial uses predominate along the east and part of the south boundaries. The remainder of the southern boundary abuts the city’s department of streets and sanitation facility, multifamily dwellings and commercial establishments. The west side of Western Avenue is used for commercial purposes and directly west of this are areas zoned R-4. The closest property zoned R-l is about one-half mile west of the cemetery.

Campbell believed the highest and best use of the unplatted cemetery property would be a mixture of commercial and multifamily developments. He based his opinion on the following factors. Ninety percent of the unplatted land, or about 34 acres, is adjacent to Western Avenue which is an established business and commercial corridor. The cemetery property takes its character from and is an integral part of this area. Also, the trend of development is multifamily and commercial. An R-l zoning for the cemetery property would have the following adverse effects: (1) the property would be rendered incompatible with' surrounding uses; (2) the need for multifamily units in the area would be unsatisfied; (3) the city would realize a decrease in its tax base; and (4) Rosehill would be deprived of the full use, benefit and enjoyment of its property. R-4 developments would not interfere with the serenity of the cemetery because dense trees separate the subject property from the cemetery and additional landscaping barriers could be planned.

Plaintiff’s witness Neil King, a real estate broker, appraiser and mortgage banker, confirmed Campbell’s description of the subject property and surrounding areas. He testified that an R-l use of the unplatted property would not be compatible with the commercial property along Western Avenue, and newly constructed single-family homes would not be marketable because of the character of the area. The demand for multifamily units is greater than that for single-family residences. Neither the fair market value of neighboring property nor the public health, safety or welfare would be adversely affected by R-4 uses. In fact, an R-l classification would diminish property values. In the event plaintiff elected to sell the 34 unplatted acres, the fair market value under an R-l classification would be $850,000 and it would be unlikely that property zoned R-l could be sold. Under an R-4 classification, the property would have a fair market value of $3,400,000. .

William McCann, a real estate broker .and appraiser, described the area surrounding the cemetery as a stable, established community consisting of dissimilar multifamily, business, and light and heavy industrial uses. R-l uses would-be incompatible and inconsistent with existing uses and zoning of neighboring property. New homes built on the subject property would have to be sold for $100,000 to $150,000 each in order to make such a development economically feasible and no market exists in the area for homes in this price range. An R-l classification would destroy the marketability of the property and cause it to remain undeveloped for 150 years. McCann further testified that there have been no changes in the area warranting a down-zoning to R-l and that the highest and best use of the property would be multifamily and commercial developments.

Defense witness Patrick Arnold, an employee in the city’s department of planning, testified that cemetery operations are permitted under both R-l and R-4 zoning classifications. The areas surrounding the cemetery, although zoned R-4, are developed to a lesser density. Arnold also testified that streets, alleys, and railroad tracks are commonly used to delineate different zoning blocks.

John McNamara, a real estate broker called by the city as an expert witness, testified that uses permitted under the R-l classification represented the highest and best use of the unplatted property. A single-family residential development would be economically feasible if the homes were sold for $125,000 each. Such homes would be marketable. The fair market value under an R-l classification is $40,000 per acre. If zoned R-4, the property would have a higher fair market value, but McNamara could not specify a value.

McNamara acknowledged the accuracy of plaintiff’s description of land uses surrounding the subject property. He also testified that no single-family dwellings had been built in the area since 1957 and that R-4 developments could be built on the unplatted cemetery property and still be buffered from the remainder of the cemetery property. McNamara agreed that the R-4 zoning had not and would not adversely affect neighboring property.

Alderman Ivan Rittenberg submitted the amendatory zoning ordinance. He testified that the purposes of the amendment were to make the zoning consistent with that of other cemeteries in the city, protect the pastoral nature and historic heritage of the cemetery, and reduce population density in the area. Competition with suburbs has led to a systematic down-zoning of property in the city. When questioned about a. newspaper article reporting that Rittenberg intended to rezone the cemetery property to prevent construction of a shopping center, Rittenberg stated he had been misquoted.

The intervenors called Edward Collins, a student, as a witness. He testified that, using a technique learned in school, he had determined the age of some of the trees on the subject property to be 100 years old. The property is only one of twc/areas in the city which has vegetation native to Chicago 150 years ago. He further testified that the elevation of cemetery land is higher than that of the surrounding area.

Also called as witnesses by the intervenors were Martin Rosene, Dexter Ostegren, and Harris Rubin. Rosene, a real estate expert, testified that most cemeteries in Chicago are zoned R-2. Only Graceland Cemetery is zoned R-4. Ostegren and Rubin, residents of the area, gave testimony concerning flooding of homes near the subject property.

The trial court entered judgment in favor of plaintiff. The court found the amendatory ordinance was arbitrary, unreasonable, and capricious, bore no reasonable relationship to the public health, safety or welfare, and imposed an unconscionable hardship on plaintiff which was not justified by any public benefit. The court declared the amendatory ordinance void, enjoined the city from enforcing the R-l classification, and held that the property could be developed under the R-4 classification.

The sole issue raised by the city on appeal is whether the trial court’s judgment is against the manifest weight of the evidence.

A zoning ordinance is presumed to be valid and the party seeking to overcome the presumption must prove by clear and convincing evidence that the ordinance as applied to the subject property is arbitrary and unreasonable and bears no relation to the public health, safety or welfare. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65; Heller v. City of Chicago (1979), 69 Ill. App. 3d 815, 387 N.E.2d 745.) The factors to be considered in determining the validity of an amendatory zoning ordinance are the same as those involved in determining the validity of the initial zoning. (Garner v. City of Carmi (1963), 28 Ill. 2d 560, 192 N.E.2d 816.) These factors are:

(1) the existing uses and zoning of nearby property;
(2) the effect of the ordinance on property values;
(3) the promotion of the public welfare;
(4) the gain to the public as compared to the hardship imposed on the property owner; and
(5) the suitability of the property for the purpose zoned. (Garner; Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 421 N.E.2d 285.)

Of paramount importance is whether the subject property is zoned in conformity with surrounding, existing uses and whether those uses are uniform and established. (Forestview Homeowners Association, Inc. v. County of Cook (1974), 18 Ill. App. 3d 230, 309 N.E.2d 763.) On appeal, the judgment of the trial court is entitled to great weight and should not be reversed unless it is against the manifest weight of the evidence. Thompson.

Applying the aforementioned principles to the case at bar, we are compelled to affirm the judgment of the trial court. It is undisputed that the areas surrounding the subject property are zoned for commercial, multifamily residential, business, and industrial uses. No changes in the general character or existing uses occurred since 1957 and no single-family dwellings had been constructed. Thus, there is no public need or good which would justify the down-zoning to R-l. (Cosmopolitan National Bank v. City of Chicago (1963), 27 Ill. 2d 578, 190 N.E.2d 352.) Furthermore, plaintiff’s witnesses testified and the city’s expert agreed that the R-4 classification and development would have no adverse effect on the surrounding areas. If plaintiff were to sell the subject property zoned R-l, the property’s value would be decreased by approximately $2,000,000. Also, the evidence indicates the property would be difficult to sell for such use because of the low demand for single-family residences in the area. It is obvious, therefore, that the gain to the public caused by the down-zoning is minimal when compared to the hardship imposed on plaintiff. We conclude that the plaintiff met its burden of proof and the trial court finding that the zoning amendment was arbitrary and unreasonable is not against the manifest weight of the evidence.

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

Judgment affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE RIZZI

text:
    THE PACKAGING HOUSE, INC., Plaintiff-Appellant, v. MARVIN HOFFMAN, Defendant-Appellee.
    First District (3rd Division)
    No. 82—2704
    Opinion filed April 20, 1983.
    Epton, Mullin, Segal & Druth, Ltd., of Chicago (Saul A. Epton and Ronald A. Sandler, of counsel), for appellant.
    Swanson, Ross, Hanfling & Block, of Chicago (Herbert Lee Caplan, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, The Packaging House, Inc., appeals from an order denying its motion for a preliminary injunction to enforce a restrictive covenant in an employment agreement that plaintiff had with defendant, Marvin Hoffman. We reverse and remand with directions that a preliminary injunction be entered to enforce the agreement.

Plaintiff is a corporation involved in the design and sale of displays and packaging that are made to customer specifications. Although plaintiff does not do any of the actual design or packaging work, plaintiff has developed special detailed working relationships with certain designers and manufacturers which enable plaintiff to provide a full range of packaging design and display services to its customers.

Most of plaintiff’s customers are located in Chicago, Minneapolis, New York and Cincinnati. In the Chicago area, there are approximately 30,000 potential customers for plaintiff’s services. Plaintiff has a total of 350 active, mostly longstanding customers.

Plaintiff’s customer list is marked “Confidential.” The list is kept on plaintiff’s premises under lock and key. A security system is provided for the location where the customer list is kept. The keys to that location are available only to certain officers and employees of plaintiff. Plaintiff also keeps its costs and pricing information in a secured and confidential manner.

Plaintiff has approximately 17 employees, including 10 salesmen. All the salesmen have signed employment agreements containing a restrictive covenant prohibiting solicitation of plaintiff’s customers by a severed employee for 18 months. Defendant was employed by plaintiff as a salesman for about 8V2 years. During the course of his employment, defendant signed an agreement which states:

“Restrictive Covenant.
(a) Upon the termination of this Employment Agreement for any reason whatsoever and for a period of eighteen (18) months thereafter, Employee shall not, directly or indirectly, either as an individual or on his own account, or as an employee, agent, salesman, or member of any person, corporation or firm or otherwise, provide services, call upon, solicit, enter into, or engage in the business conducted by Employer, with any account of Employer, which has purchased items from Employer within an eighteen (18) month period prior to the termination of employment, whether such account is brought into Employer’s business by Employee or not ***.
(b) The Employee further acknowledges that the foregoing restrictions placed upon him are necessary and that in the event his employment with the Employer should terminate for any reason, he will be in a position to earn a livelihood without violating the foregoing restrictions, and that it has been made clear to him on behalf of the Employer that his ability to earn a livelihood without violating such restrictions is a material condition to his employment or continuation of his employment by Employer.
* * *
Disclosure of Information.
(a) The Employee recognizes and acknowledges that all knowledge and information which he may acquire in the course of his employment hereunder relating to the business, developments, activities or products of Employer or the business affairs of any individual or firm doing business with Employer, such as, but not limited to, customer and supplier lists, cost and selling prices for specific customers, customers’ needs and requirements, identity of manufacturing sources and product designs, and all inventions, ideas, discoveries, creations, developments, improvements, designs and processes so acquired (hereinafter collectively referred to as ‘inventions’) are the valuable property of Employer and shall be held by the Employee in confidence and trust for the sole benefit of Employer.
* *

On August 24, 1982, defendant terminated his employment with plaintiff and began soliciting business from plaintiff’s accounts, utilizing plaintiff’s suppliers and taking orders from plaintiff’s customers. Defendant used plaintiff’s confidential information to solicit plaintiff’s accounts. Plaintiff instituted the present action to enforce the restrictive covenant signed by defendant.

Basically, defendant claims that plaintiff’s motion for a preliminary injunction was properly denied because plaintiff does not possess an exclusive or near-permanent relationship with its customers, there is no evidence that defendant acquired trade secret information, and the trial court’s discretion to deny the preliminary injunction was not abused. We reject defendant’s arguments.

Ordinarily, an employer has no proprietary interest in its customers. However, an employer can utilize a restrictive covenant to protect itself from the disadvantageous use of confidential information revealed to an employee during the course of his employment. In addition, the protection of established clientele from takeover by a former employee is a legitimate interest of an employer. Thus, neither the existence nor the misuse of a trade secret is required to enforce a restrictive covenant. Tower Oil & Technology Co. v. Buckley (1981), 99 Ill. App. 3d 637, 643-44, 425 N.E.2d 1060, 1066.

It is for these reasons that a covenant not to compete will be enforced if the employee acquired confidential information through his employment and subsequently attempted to use it for his own benefit. Also, an employer’s interest in its customers may be deemed proprietary if by the nature of the business the customer relationship is near-permanent and but for his association with his employer, the employee would never have had contact with the clients in question. Morrison Metalweld Process Corp. v. Valent (1981), 97 Ill. App. 3d 373, 376, 422 N.E.2d 1034, 1037.

Here, we conclude that defendant acquired confidential information through his employment with plaintiff and subsequently attempted to use the information for his own benefit. Also, we conclude that the customer relationship that plaintiff maintained with its customers was near-permanent and that but for his association with plaintiff, defendant would not have had contact with the clients in question.

In order to obtain a preliminary injunction, a movant must establish irreparable injury and the likelihood of success on the merits. Likelihood of success on the merits does not mean a showing which will in all events warrant relief in the final hearing. Rather, it means that the movant must demonstrate that he is probably entitled to the relief prayed for if the proof should sustain his allegations. In addition, it must be demonstrated that the granting of the preliminary relief outweighs any possible injury which defendant might suffer by its issuance. (Booth v. Greber (1977), 48 Ill. App. 3d 213, 217, 363 N.E.2d 6, 9; Morrison Metalweld Process Corp. v. Valent (1981), 97 Ill. App. 3d 373, 375, 422 N.E.2d 1034, 1036.) In the present case, we believe the manifest weight of the evidence establishes that plaintiff is entitled to the issuance of a preliminary injunction.

Although the decision to grant or deny a preliminary injunction rests within the sound discretion of the trial court, there must be a sufficient showing to sustain the order of the trial court granting or denying the relief sought. (MBL (USA) Corp. v. Diekman (1983), 112 Ill. App. 3d 229, 240, 445 N.E.2d 418, 426.) We conclude that the record in this case is not sufficient to sustain the order of the trial court denying the relief sought and that therefore the trial court erred in denying plaintiff’s motion for a preliminary injunction.

Accordingly, the order denying plaintiff’s motion for a preliminary injunction is reversed, and the case is remanded with directions to enter a preliminary injunction to enforce the restrictive covenant agreement signed by defendant.

Reversed and remanded with directions.

McGILLICUDDY and WHITE, JJ, concur.


author: JUSTICE LORENZ

text:
    DR. MARK MEYERS, M.D., Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF PUBLIC AID et al., Defendants-Appellees.
    First District (5th Division)
    No. 81—1828
    Opinion filed April 29, 1983.
    Harold G. Shapiro, of David Blumenfeld, Ltd., of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Ellen P. Brewin, Special Assistant Attorney General, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Dr. Mark Meyers, filed a complaint in the circuit court of Cook County for judicial review of the administrative action of the Illinois Department of Public Aid (IDPA) terminating his eligibility as a vendor of medical services and determining that it was entitled to recoup $55,531.66 in payments made to plaintiff for medical services provided to Medicaid recipients. The circuit court affirmed in part, but reversed recoupment of certain discrepancies occurring from July through December 1975, and reduced the recovery to $26,296.29.

On appeal, plaintiff argues that (1) the IDPA decision was against the manifest weight of the evidence, (2) he was denied due process because the Department failed to give him notice of its documentation standards, and (3) the court erred by refusing to remand plaintiff’s case back to the IDPA for a redetermination of his termination as a provider.

The pertinent facts follow. In May of 1978, the Department audited Meyers’ billings for medical services allegedly rendered to public aid patients from July 1975 through December 1976. This audit, and subsequent re-audits conducted in May 1980 were based upon 1,010 billing procedure discrepancies which included “A,” “B,” “C,” “G,” “GP” and “K” type discrepancies, and which, when extrapolated, reached a total of $58,866.62. In December 1979, the Department notified Meyers of its intention to terminate his eligibility as a vendor of goods or services to recipients under the Medicaid program, and to recover the $58,866.62 in payments made to him for medical services rendered, pursuant to section 4.41 and 4.51 of the Rules for Department Actions Against Medical Vendors. These rules provided that the Department may recover money improperly or erroneously paid to a vendor who has knowingly made, or caused to be made, any false statement or representation of a material fact in connection with the administration of the program.

Hearings commenced on June 7, 1980. The Department called two auditors, their supervisor, and a Department statistician as witnesses.

Taras Fylypowycz, an IDPA auditor, testified that he audited medical records by comparing them to the billing made by a doctor in order to determine if they were in compliance with Department policy. He stated that a “C” type discrepancy is determined by comparing the documentation in the doctor’s patient charts with the criteria for the particular procedure code used by the doctor for billing purposes. He defined a procedure code as a numerical identification for a type of visit which a doctor uses when he bills the Department for the services he had rendered.

The three sources of these procedure codes are the billing form, DPA-132, the Current Procedure and Terminology, Second Edition (CPT #2d), and the Handbook for Physicians (Handbook) promulgated by the Department.

Fylypowycz stated that the audit period for the plaintiff extended from July 1975 to December 1976. In the discrepant billings, the auditors found that where Meyers had billed the comprehensive exam codes 90020 and 90070/80, the proper codes would have been 90010 for new patients and 90040 for established patients.

The auditors applied the CPT 2d for services rendered prior to January 1, 1976, and the Physicians Handbook for services rendered thereafter. On cross-examination he stated that there was no listing of any documentational requirements for 1975 and that to his knowledge none had ever been sent to physicians.

Auditing supervisor Matthew Bachmann testified that the Handbook went into effect January 1, 1976; that it was mailed out to vendors in January, February, and March of 1976; and that the auditors were to apply the Handbook as of the beginning of January 1976.

Plaintiff testified on his own behalf that he was the only physician at the clinic and that he did not fill in or decide which procedure code would be filled. He stated that a receptionist filled in the code before the doctor had even seen the patient or documented any medical information, and that it was clinic policy to automatically bill all first visits as 90020 and all second visits as 90070.

He admitted that generally even a physician cannot determine how extensive an examination will be before he sees the patient. Although Meyers stated that he started to fill in the codes once he received the Handbook in 1976, from April 1976 to December 1976 over 40% of the billings contained “C” discrepancies. On the last day of the hearing, plaintiff supplied missing records and, following a re-audit, the recoupment amount was adjusted to $55,531.66. At the conclusion of this hearing, the hearing officer terminated plaintiffs eligibility to participate in the Medicaid program and authorized recoupment of $55,531.66.

Plaintiff filed a complaint in administrative review in the circuit court of Cook County. After hearing oral arguments, the trial court affirmed recoupment of all overpayments resulting from discrepancies other than type “C,” affirmed recoupment of all overpayments due to “C” discrepancies in 1976, and reversed recoupment of “C” discrepancies from July 1975 to December 1975.

Plaintiff filed a motion for reconsideration requesting that the case be remanded back to the Department for a redetermination of the termination issue. The trial court denied this motion and entered the final recoupment amount of $26,296.29 on June 23, 1981. Plaintiff appeals.

We note here for clarity that the issues on appeal concern only the “C” discrepancies encompassing misuse of procedure codes.

Plaintiff does not contest either the Department’s sampling method or its use of an extrapolation to determine the final recoupment amount nor any of the A, B, G, GP or K discrepancies on appeal.

Opinion

We first address plaintiff’s contention that the IDPA decision was against the manifest weight of the evidence.

It is well settled that under the Administrative Review Act, the findings and conclusions of the agency on questions of fact are “prima facie true and correct” (Ill. Rev. Stat. 1979, ch. 110, par. 274), now codified as section 3 — 110 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 110) and must be affirmed unless against the manifest weight of the evidence. (Cybularz v. Quern (1981), 96 Ill. App. 3d 845, 422 N.E.2d 123.) These provisions of the Administrative Review Act have been construed to mean that courts are not authorized to reweigh evidence or to make an independent determination of facts. (Menning v. Department of Registration & Education (1958), 14 Ill. 2d 553, 153 N.E.2d 52.) Thus, in order to reach the conclusion that a particular finding is against the manifest weight of the evidence, this court must be satisfied that an opposite conclusion is clearly evident. (Kreiser v. Police Board (1976), 40 Ill. App. 3d 436, 352 N.E.2d 389, aff’d (1977), 69 Ill. 2d 27, 370 N.E.2d 511.) We are not so satisfied.

The State of Illinois requires that physicians participating in its Medicaid program maintain detailed records of the nature and scope of the health care they provide to patients receiving assistance under the Illinois Public Aid Code. (Ill. Rev. Stat. 1979, ch. 23, par. 5 — 5.) The Department of Public Aid conducts post-payment audits by examining randomly selected records for discrepancies in order to recoup any excess compensation paid because of improper billing practices. Discrepancies exist when no medical records are available to verify the submitted bills or when a billing code has been misused. Illinois Physicians Union v. Miller (7th Cir. 1982), 675 F.2d 151.

In the present case, plaintiff himself admitted that a receptionist filled in the procedure code on the billing form prior to any patient examination as a matter of office policy, and that he signed and submitted such forms without further review. Although plaintiff contends that he did not receive notice of the Department’s documentation requirements and that the requirements were applied in an arbitrary-manner, a thorough examination of the record reveals an ample basis from which the opposite conclusion might be reached.

Since we find evidentiary support in the trial court’s affirmation of the Department’s decision to terminate plaintiff and to recoup overpayments due to both 1976 “C” discrepancies as well as all 1975 and 1976 overpayments resulting from A, B, G, GP, and K discrepancies, plaintiff has not satisfactorily demonstrated that the opposite conclusion is “clearly evident.” Accordingly, we find that the findings are not against the manifest weight of the evidence.

Defendant also argues that he was denied due process because the Department failed to give him notice of its documentation standards.

It is undisputed that the 1975 findings are not at issue, and plaintiff admits that he possessed the Handbook from at least April 1976 to December 1976. Thus, the only audit period at issue on appeal extends from January 1976 through April 1976.

With respect to this time period, plaintiff premises his due process argument upon his own testimony that he received the Handbook in April 1976, from a man at the clinic who received all of his business mail and forwarded it to him once a week, and therefore he lacked notice of the documentation standards.

We find that this argument lacks merit. Even assuming, arguendo, that plaintiff did not receive the Handbook until a late mailing in April 1976, there is no dispute that he did possess the CPT 2d which was in effect in 1975 and 1976. We have examined the record and the CPT 2d, while not as detailed as the successor Handbook, adequately sets forth the procedure code and a description of the documentation required for each code. Moreover, plaintiff himself admitted that a receptionist filled in the procedure code by following the clinic policy of billing all first visits as “90020” and subsequent visits as “90070” and he testified that he was not only aware of this practice but also signed the billing forms without adjusting the code to reflect the actual extent of the exam.

In Illinois Physicians Union v. Miller (7th Cir. 1982), 675 F.2d 151, 158, the court stated that “we do not believe it unreasonable to require a physician participating in publicly funded welfare programs to be thoroughly familiar with the Department’s rules and regulations. Thorough knowledge is demanded on the part of the physician, not only for conducting an audit, but for submitting proper bills in the first place.”

Accordingly, we find that defendant was not denied due process and had adequate notice of the documentation standards promulgated by the Department.

Lastly, plaintiff argues that the trial court erred in its decision not to remand the case back to the Department for a redetermination of his eligibility to participate as a Medicaid vendor since his termination was based on “C” discrepancies and the trial court reversed the 1975 “C” recoupments.

In the present case, the termination was based solely on the “C” type of discrepancy. However, the record reveals that even after the partial reversal of the 1975 “C” recoupments, over 40% of the billings sampled were “C” discrepancies which occurred from April to December 1976 and which totalled almost $26,000, and there is ample evidentiary support for the trial court’s denial of remandment.

Consequently, we find that the trial court had a proper basis for its denial of remandment for a redetermination of plaintiff’s eligibility.

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

Affirmed.

SULLIVAN and MEJDA, JJ., concur.

        E.g., the CPT 2d requires: “90040 Visit office established patient, brief examination, evaluation and/or treatment, same or new illness” in contrast to “90070 Visit office established patient, extended, re-examination or re-evaluation.”