author: JUSTICE McGILLICUDDY

text:
    CHICAGO GRAVEL COMPANY, Plaintiff-Appellant, v. EDWARD J. ROSEWELL, Treasurer of Cook County, et al., Defendants-Appellees.
    First District (3rd Division)
    No. 81—2647
    Opinion filed September 14, 1983.
    Rehearing denied October 31, 1983.
    Rooks, Pitts, Fullagar and Poust, of Chicago (Terence E. Flynn and Geoffrey A. Bryce, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and James McVane, Jr., Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Plaintiff, Chicago Gravel Company (Chicago Gravel), appeals an order of the circuit court of Cook County denying a permanent injunction and dissolving a preliminary injunction precluding defendants, Edward J. Rosewell, as treasurer of Cook County, and Thomas Hynes, as assessor of Cook County (Rosewell), from reassessing and re-taxing one parcel of plaintiff’s property, Assessor’s Permanent Index Number 06 — 30—100—008 (P.I.N. 008), for the years 1968 through 1977. Plaintiff further appeals an order of the circuit court of Cook County regarding payment into escrow, held by defendant, Edward J. Rosewell, of taxes, interest and penalties for the years 1968 through 1977 on the above described property.

It was stipulated that Chicago Gravel had made good faith payments in full of taxes levied on the property for the years involved. The assessor ascertains the tax due by multiplying the number of acres involved times the property’s assessed valuation per acre. However, due to a clerical error in the assessor’s office in copying the acreage of the property in question as 10.8 acres rather than 70.8 acres, the property, P.I.N. 008, was undertaxed. Three quadrennial assessments occurred (1968, 1973 and 1977) without discovery of the error. Only when Chicago Gravel appealed the proposed valuations on all 27 of the parcels that it owned in 1978, did anyone discover the error.

In 1978, Rosewell began administrative back tax proceedings against Chicago Gravel for tax years 1958 to 1977 on the property identified as P.I.N. 008. Although he allowed certificates of error to be filed on the property for the years 1958 through 1967, he maintained his demand for back taxes on the property for 1968 through 1977. Chicago Gravel had no further administrative remedy since the books of the Board of Appeals were closed.

On September 12, 1979, Chicago Gravel filed a complaint for a preliminary injunction to restrain the defendants from assessing and collecting additional taxes, interest and penalties on the property identified as P.I.N. 008. A 10-day temporary restraining order was entered on September 14, 1979, and was later extended to November 26, 1979. Defendants filed a motion to dismiss the complaint. The hearing on the motion to dismiss was continued to January 1980. On January 9, 1980, the trial court denied the motion to dismiss and granted a' preliminary injunction enjoining Rosewell from the collection of taxes on the property, the imposition of penalties or interest and the sale of plaintiff’s property identified as P.I.N. 008. On January 30, 1981, after many continuances and transfers of the case, Chicago Gravel moved for a rule to show cause, maintaining that Rose-well had sold the property identified as P.I.N. 008 at a scavenger sale, in defiance of the preliminary injunction. When Rosewell agreed to vacate the sale and clear Chicago Gravel’s title, the trial court denied the motion for a rule to show cause and set the matter for hearing on February 20, 1981. Several additional continuances and transfers ensued. A hearing was held on October 13, 1981, and Chicago Gravel’s motion for a permanent injunction was denied. The trial court found that the property identified as P.I.N. 008 was “omitted property” for the years 1968 through 1977 and that under Illinois law (HI. Rev. Stat. 1979, ch. 120, par. 701 et seq.), the collection of back taxes as well as interest and penalties was authorized. The preliminary injunction granted to the plaintiff was dissolved and plaintiff’s motions for a permanent injunction, and with respect to the amount to be placed in escrow, were denied.

The primary issue on appeal is whether the trial court erred in finding the property identified as P.I.N. 008 to be “omitted property” under the statute. Section 220 of the statute provides in pertinent part:

“If any real or personal property is omitted in the assessment of any year or number of years, so that the taxes thereon, for which such property was liable, have not been paid, or if any such property, by reason of defective description or assessment thereon, fails to pay taxes for any year or years, in either case the same property, when discovered, shall be listed and assessed by the board of review or, in counties having a board of appeals, by the assessor either on his own initiative or when so directed by the board of appeals.” Ill. Rev. Stat. 1979, ch. 120, par. 701.

The Illinois Supreme Court addressed this issue in People ex rel. Schuler v. Chapman (1939), 370 Ill. 430, 19 N.E.2d 351. In that case a zero was omitted in transferring the assessment of the property to the assessor’s books. For the quadrennial assessment 1923 to 1926 inclusive, the property was assessed as improved real estate of a value of $60,000. The assessment of $60,000 in previous years was entered on the assessor’s books as $6,600 for the quadrennial 1927 through 1930 inclusive. Taxes were levied and collected for each of these years based on the lower figure. When the error was discovered six years later, the trial court entered judgment for the sale of the property, finding that the underassessed property should be deemed omitted for the years in question. The supreme court reversed and remanded holding that if property is not assessed at all, it may be assessed in later years as omitted property; but that where an assessment has been made too low due to clerical error, it may not be reassessed in subsequent years as having been omitted.

Although, as Rosewell points out in his brief on appeal, the Chapman case dealt with the underassessment of improvements to property and the case at bar involves the assessment of the property itself, we do not agree that this is a meaningful distinction. The principle of law is the same in either case: property which has been assessed, and upon which taxes have been levied and paid in their entirety, even though the assessment through mistake was too low, may not be reassessed in a subsequent year as omitted.

In Hamer v. Kirk (1978), 57 Ill. App. 3d 335, 373 N.E.2d 64, the issue was whether the trial court had erred in refusing to order the reassessment of real properties which had been underassessed from 1967 until 1973. In holding that such property was not omitted property under the statute the court stated “the omitted property theory *** has been strictly limited in its application to those situations where the taxes have been properly assessed and levied against the taxpayers, but for some reason the taxing bodies have not collected the taxes. [Citations.]” (57 Ill. App. 3d 335, 341.) The omitted property theory does not permit the additional assessment of taxes on property improperly underassessed by the tax authorities and on which the taxes have already been collected. The court pointed out the fundamental principle that taxes must have some degree of finality, stability and security to the taxpayer. 57 Ill. App. 3d 335, 341.

This court reached a similar determination in Holiday Inns of America, Inc. v. Tully (1982), 106 Ill. App. 3d 1004, 436 N.E.2d 592. In that case, the property in question was found to be omitted property within the meaning of the statute. The taxpayer had originally paid a use tax on its leasehold improvements. This tax was subsequently held to be unconstitutional and the resulting tax was held void. The use tax, therefore, was refunded to the taxpayer. Therefore, the tax books indicated that no taxes had been paid for the years in question and thus the property could be assessed as omitted under section 220 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 701).

Based on this consistent interpretation of the statute (Ill. Rev. Stat. 1979, ch. 120, par. 701 et seq.), we find the trial court erred in authorizing the collection of additional taxes as well as penalties and interest on the property identified as P.I.N. 008. Since the taxes on the property were paid as levied for the years in question, we find that the property was not omitted, and thus the decision of the trial court must be reversed.

We further find that the amount held in escrow by defendant, Edward J. Rosewell, covering the taxes, interest and penalties for the years 1968 through 1977 on the property identified as P.I.N. 008, plus interest which has accrued since the date of deposit of the escrow should be refunded to the plaintiff.

Reversed and remanded with directions.

WHITE and O'CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE "VAN DEUSEN JUSTICE NASH,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY DEL PERCIO, Defendant-Appellant.
    Second District
    No. 82—147
    Opinion filed October 5, 1983.

      NASH, J., dissenting.
    G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Daniel D. Yuhas and Janet Sinder, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE "VAN DEUSEN

delivered the opinion of the court:

Defendant, Anthony Del Percio, was tried by jury and convicted of armed violence predicated upon attempt (armed robbery) (Ill. Rev. Stat. 1979, ch. 38, par. 33A— 2), attempt (armed robbery) (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a)), conspiracy to commit armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 2(a)) and unlawful use of weapons (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(a)(7)). The trial court vacated attempt (armed robbery) as a lesser included offense of armed violence and sentenced defendant to eight years’ imprisonment for armed violence and to two three-year concurrent terms for conspiracy and unlawful use of weapons. Defendant appeals, contending that his conviction for armed violence, predicated upon attempt (armed robbery), was impermissibly double enhanced, that he was improperly convicted of conspiracy to commit armed robbery when he was also convicted of attempt (armed robbery) and armed violence, that the trial court erred in not enforcing a plea agreement offered defendant, and that his eight-year sentence for armed violence was excessive and constituted an abuse of discretion. We affirm the trial court.

On February 25, 1981, defendant and Larry Gatena, codefendant, discussed ways to make some money and considered robbing Enrique Ortiz, a jewelry salesman. On February 26, they decided to undertake the robbery and obtained a stocking, gloves, hat, shotgun and shells, tape and a car before going to Ortiz’ apartment. They considered breaking into the unoccupied flat to get Ortiz’ jewelry case, but could not get inside; so they waited for their victim to come home and go inside. After he had done so, defendants went and knocked at the door. Ortiz, cautious because of the valuable jewelry in his apartment, picked up his loaded .357 magnum handgun and held it behind his back before opening the door. Gatena told Ortiz he had run into the latter’s car; at that point defendant appeared, pointing the loaded shotgun at Ortiz’ face and told him to “freeze.” Ortiz, however, pulled his handgun and began to fire. Defendants ran and Del Percio was hit in his right leg, hip, and in the fingers of both hands when gunfire struck the shotgun he was holding. Gatena then halted his escape and returned for the fallen Del Percio. Gatena threw rocks at Ortiz who tried to fire again, but whose gun was empty. Ortiz then ran back into the apartment to reload his pistol. Gatena helped defendant to the car, put him in the trunk and took him to a hospital. The car was recovered at the hospital and a shotgun shell, tape, a glove with holes, a hat and numerous bloodstains were found therein.

Codefendant accepted a plea bargain, pled guilty to one count attempt (armed robbery), and was sentenced to eight years’ imprisonment in exchange for his cooperation and testimony.

On June 10, 1981, the State had tendered essentially the same plea agreement to defendant. On June 11, at a pretrial conference, defendant contended he had accepted the arrangement and that he was entitled to the bargain. The State agreed it had made such an offer, but claimed the defendant never indicated acceptance; moreover, once codefendant Gatena had accepted the offer, it was no longer available to Del Percio. Defense counsel stated, “I intended to file additional motions addressing that and that is all I have to say.” However, no such motions were filed and the plea offer was not raised or argued during any other pretrial proceeding or at trial.

The trial at which defendant was eventually found guilty of the stated offenses began on November 19, 1981. On December 23, 1981, a hearing was held on defendant’s post-trial motion. The court vacated attempt (armed robbery) as a lesser included offense of armed violence but refused to vacate defendant’s conviction for conspiracy, stating it did not merge into armed violence as it was premised upon different elements. Defendant was thereafter sentenced and timely appealed to this court.

Defendant now contends the trial court erred in convicting him of conspiracy to commit armed robbery when he was convicted of attempt (armed robbery) and armed violence predicated upon attempt (armed robbery). He asserts that the conspiracy charge merges into the greater offenses.

The State contends his issue has been waived because defendant only argued at the trial court that if the “overt act” element of his conspiracy charge and the “substantial step” element alleged in his attempt charge were identical, both could not stand. However, it must be remembered that the attempt count was vacated below as a lesser included offense of defendant’s armed violence conviction. Defendant did not raise, nor include within his post-trial motion, the propriety of his conspiracy conviction in light of his conviction for armed violence. Objection on appeal cannot be urged on a basis other than that raised below. (People v. Kinion (1982), 105 Ill. App. 3d 1069, 1076, cert. denied (1983), 460 U.S. 1014, 75 L. Ed. 2d 484, 103 S. Ct. 1256; City of Chicago v. Ross (1977), 54 Ill. App. 3d 127, 132; see People v. Gordon (1980), 82 Ill. App. 3d 906.) Therefore, the issue was waived.

Even if we assume, for purposes of satisfying the plain error doctrine, that the merits of this conspiracy issue were before the court, we find defendant’s position unconvincing. Under section 8 — 5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 5), defendant asserts that he cannot be convicted of both conspiracy to commit armed robbery and attempt (armed robbery). Section 8 — 5 reads: “No person shall be convicted of both the inchoate and the principal offense.” What defendant misconstrues about this provision is that the statute does not apply where the defendant was not convicted of the “principal offense.” The inchoate crime of conspiracy to commit armed robbery is based upon the principal offense of armed robbery; yet defendant was never charged with, nor convicted of, armed robbery. Section 8 — 5 simply does not apply in the context of a conviction for conspiracy to commit armed robbery and attempt (armed robbery), since the latter is not the “principal offense” of the former.

Defendant next contends that under the holding of People v. Haron (1981), 85 Ill. 2d 261, his conviction for armed violence based upon attempt (armed robbery) must be vacated on grounds of double enhancement. Defendant’s reliance on People v. Haron is misplaced. It is correct that in People v. Lucien (1982), 109 Ill. App. 3d 412, which cited the Harón case among others, this court vacated a conviction for armed violence on the grounds of double enhancement where the predicate felony was couched in terms of armed robbery. However, the Lueien opinion was devoid of any analysis or explanation of how or why the court reached its conclusion. Furthermore, simultaneously with the Lueien decision, the first district of this court filed its opinion in People v. Goodman (1982), 109 Ill. App. 3d 203. In Goodman, as in the instant case, the armed violence conviction was predicated upon the offense of attempt (armed robbery). The Goodman court found such conviction was consistent with Harón because attempt (armed robbery) committed without a weapon remains a felony; consequently, there was no impermissible double enhancement in violation of Harón. People v. Goodman (1982), 109 Ill. App. 3d 203, 209-10.

Subsequently, in People v. Viens (1982), 109 Ill. App. 3d 1017, this district of the appellate court, contrary to its position taken in People v. Lueien, held that conviction of armed violence based upon the predicate offense of aggravated kidnaping did not constitute prohibited double enhancement under the rule announced in Harón.

We find the holdings in Viens and People v. Goodman dispositive of this issue. The supreme court in Harón did not address any constitutional contentions of the defendant regarding double enhancement. (People v. Haron (1981), 85 Ill. 2d 261, 279.) We likewise do not have reason to consider any such constitutional issues since none were raised by the defendant. In Haron, the supreme court’s holding was limited to a conclusion that the general assembly, in adopting the armed violence statute, did not intend that the presence of a weapon would enhance an offense from a misdemeanor to a felony and also serve as a basis for a charge of armed violence. “These provisions are clearly not applicable to an act which, if committed while unarmed, would be a misdemeanor.” (85 Ill. 2d 261, 278.) In the present case, the act which gave rise to the predicate felony of attempt (armed robbery) would have constituted a felony, attempt (robbery), even if committed without a weapon. Thus, since defendant’s armed violence conviction originated from a felony offense, not a simple misdemeanor, it is within the intended scope of the armed violence statute and is not barred by the limited double enhancement prohibition of Harón.

Defendant also alleges the trial court erred in finding he was not entitled to the plea agreement offered him by the State. He argues that based on the alleged agreement he has a right to have all convictions vacated and the cause remanded for a guilty plea to the sole charge of attempt (armed robbery).

Upon examination of the record, the court made no such finding. Further, defendant’s counsel abandoned the issue by stating he would file motions pertaining to it, but failed to do so. No such issue was raised in defendant’s post-trial motion nor at any other time during trial, and it is therefore waived. People v. Lucas (1981), 88 Ill. 2d 245, 250; People v. Precup (1978), 73 Ill. 2d 7, 16.

Defendant finally contends that his sentence of eight years for armed violence was excessive and an abuse of discretion. A Class X felony such as armed violence permits a sentence range of six to 30 years. The trial court has wide discretion in sentencing and was in a superior position to determine what was proper; we may not substitute our judgment merely because the factors to be considered might have been balanced differently. People v. La Pointe (1981), 88 Ill. 2d 482, 493-94; People v. Cox (1980), 82 Ill. 2d 268, 280.

In sentencing the defendant, the trial court considered of record: the evidence presented, the presentence report, such aggravating factors as defendant’s threatening use of a sawed-off shotgun, and mitigating factors such as defendant’s lack of criminal record and good employment history. The court did not consider defendant’s pending charges. The trial judge stated, “I was considering a lesser sentence of six years, but after I thought about it, I can’t see that much distinction between [defendant’s culpability as compared to that of his co-defendant who was sentenced to 8 years imprisonment].” The trial court acted properly within its discretion and appropriately sentenced defendant within the permissible range. We find no error.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

SEIDENFELD, P.J., concurs.

JUSTICE NASH,

dissenting:

I respectfully dissent from that portion of the opinion holding that armed violence may be properly predicated upon the offense of attempt armed robbery.

In People v. Haron (1981), 85 Ill. 2d 261, 278, 422 N.E.2d 627, our supreme court determined that the act of using a dangerous weapon could not be applied to both raise the misdemeanor offense of battery to felony aggravated battery and then again cause enhancement of the penalty for defendant’s conduct to armed violence. The court noted that the armed violence statute required that there be “the commission of a predicate offense which is a felony without enhancement by the presence of a weapon.” This language has been given two different interpretations in the appellate court: that the predicate offense may be any felony which has not been first raised from a misdemeanor by the presence of a weapon (People v. Viens (1982), 109 Ill. App. 3d 1017, 1026-27, 441 N.E.2d 660, appeal denied (1983), 93 Ill. 2d 578; cert. denied (1983), 461 U.S ___, 77 L. Ed. 2d 287, 103 S. Ct. 1900; People v. Goodman (1982), 109 Ill. App. 3d 203, 209-10, 440 N.E.2d 345), and that the predicate offense, additionally, may not have been raised from a lesser felony to a greater felony, also by reason of the presence of the weapon (People v. Lucien (1982), 109 Ill. App. 3d 412, 419, 440 N.E.2d 899, appeal denied (1982), 93 Ill. 2d 570; cert. denied (1983), 459 U.S. 1219, 75 L. Ed. 2d 459, 103 S. Ct. 1223.

In People v. Viens the court concluded that the armed violence statute did not provide for an enhanced penalty for commission of a felony while armed with a dangerous weapon but, rather, established a new substantive offense, thus avoiding double enhancement of penalty. However, in People v. Donaldson (1982), 91 Ill. 2d 164, 168, 435 N.E.2d 477, our supreme court found that armed violence was not a separate substantive offense but provides for enhancement of the penalty for felonious conduct while armed. See also People v. Wisslead (1983), 94 Ill. 2d 190, 193, 446 N.E.2d 512.

In People v. Haron the court referred, inter alia, to Simpson v. United States (1978), 435 U.S. 6, 15-16, 55 L. Ed. 2d 70, 78-79, 98 S. Ct. 909, 914-15, and Busic v. United States (1980), 446 U.S. 398, 404, 64 L. Ed. 2d 381, 388, 100 S. Ct. 1747, 1752. In Simpson defendants were convicted of bank robbery, aggravated by use of weapons. The United States Supreme Court determined defendants could not be convicted and sentenced under title 18, section 924(c) of the United States Code (18 U.S.C. sec. 924(c) (1976)), a sentence-enhancing provision similar to the Illinois armed violence statute, as that would constituted double enhancement of penalty. In Busic the United States Supreme Court again held that prosecution and enhanced sentencing under section 924(c), rather than as provided for the predicate felony, was “not permissible where the predicate felony statute contains its own enhancement provision.” See State v. Workman (1978), 90 Wash. 2d 443, 584 P.2d 382 (sentence enhancement statute may not be applied to attempt robbery wMle armed), also noted in People v. Haron (1981), 85 Ill. 2d 261, 275, 422 N.E.2d 627.

As applied in this case, the presence of the weapon served first to enhance the offense of attempt robbery (Class 3) to attempt armed robbery (Class 1); it again served to enhance the penalty for defendant’s conduct to that provided under the armed violence statute (Class X). This constitutes, in my view, a double enhancement of penalty which was not intended by the legislature as recognized by the court in Harón. I see no logical distinction in the facts of this case which would permit a different rule.

This question would be avoided had the State chosen to predicate the armed violence charge upon attempt robbery rather than attempt armed robbery; then double enhancement of penalty would not occur and the Harón standard would be met.


author: PRESIDING JUSTICE SEIDENFELD

text:
    DR. SAMUEL CLARK, Plaintiff-Appellee, v. WILLIAM D. MADDUX, Defendant-Appellant.
    Second District
    No. 82—978
    Opinion filed October 5, 1983.

      Bruce M. Lane, of William D. Maddux & Associates, of Chicago, for appellant.
    Jack F. Kuhlman and Deborah M. Scott, both of Collis & Kuhlman, Ltd., of Hinsdale, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiff, a medical doctor, sued defendant, a lawyer, to recover a fee for review of medical information in connection with a medical malpractice case. The defendant appeals from the judgment of $4,350 and costs entered for the plaintiff, contending that he acted for a disclosed principal, his client, therefore was not personally liable.

Motions for summary judgment on the pleadings and depositions were denied. At trial plaintiff testified that he had a discussion with Shelley Gardner, who identified herself as an attorney from defendant’s office. Gardner said the firm represented a case that she wished to discuss; he agreed to review the records involved in the case. He testified that there was “no real indication who was going to pay” his fee, but that it was his “assumption” that defendant’s office would pay “since she agreed to the fee.” He stated that at the time of conversation, there was no discussion of whether a suit had been filed; only that the firm represented the patient. He did testify, however, that “the malpractice case was directed against a doctor,” naming him; that there was a “pending suit”; and that Gardner “indicated that they were suing a physician ***.”

Gardner testified that she told Clark that Jenkins was a poor woman who was frequently unable to work. She testified that the firm’s practice is to explain to the client that although costs may be advanced, the client is ultimately responsible. She testified that, in her conversation with plaintiff, she told him that she represented Arnetta Jenkins, who had a claim against the named doctor. She identified herself as an attorney working on behalf of Jenkins and informed Clark that a lawsuit had been filed. She never agreed to become personally liable for the plaintiff’s services or to make the defendant personally liable. She had a conversation with Jenkins within two weeks after meeting with Clark; she gave Jenkins a status report, told her she had retained a physician, and, she was “sure,” she told her what his charges were.

In his discovery deposition, some of which was read into evidence, defendant admitted that his firm had not asked Arnetta Jenkins to reimburse the firm for costs, as she would not be able to afford it.

Also in evidence was a letter sent by defendant in response to plaintiff’s bill, over Gardner’s signature. In substance the letter confirmed that an hourly charge of $300 had been agreed upon but protested the extensive literature research and medical report as allegedly not needed or authorized. The letter also stated that in the experience of the attorneys they had never been previously billed for secretarial copying services, and that the bill was “far in excess of the normal for initial interviews.” An adjustment was requested.

The long settled rule in Illinois is that “[wjhere an agent in making a contract discloses his agency and the name of his principal *** the agent is not liable on the contract unless he agrees to become personally liable.” (Chicago Title & Trust Co. v. De Lasaux (1929), 336 Ill. 522, 526.) The rule has been applied in various cases involving attorneys. In Petrando v. Barry (1955), 4 Ill. App. 2d 319, 322-23, a printer sued an attorney for the cost of printing briefs, abstract, petition for rehearing, and petition for leave to appeal. The name of the attorney’s client appeared on the cover pages of the printed materials and the plaintiff’s business largely was of printing such materials. In holding for the attorney the court noted that the attorney-client relationship in some of its aspects is a relationship of agency, and that the printer was necessarily aware of the attorney’s representative capacity. The fact that the plaintiff had billed the attorney or that the attorney rather than the client placed the printing order was held not critical, absent proof that the credit was given expressly or exclusively to the attorney with further proof that he intended to assume personal liability. In International Service Cory. v. Ooms (1969), 105 Ill. App. 2d 391, 395-96, the plaintiff sued the defendant attorney for investigative work in a civil action, performed at the attorney’s request. The court, noting the applicability of agent-principal rules to the attorney-client relationship, held that the defendant was not personally liable because he employed plaintiff while acting as an attorney for a client and the plaintiff was aware of this relationship. It made no difference that the plaintiff dealt directly with the defendant and not with the client. In McCorkle v. Weinstein (1977), 50 Ill. App. 3d 661, 662-64, the plaintiff, a court reporter, sued an attorney for the value of court reporting services rendered in connection with a proceeding before the Pollution Control Board. The court affirmed a holding for the defendant even though the defendant was billed for the services and the defendant had initially requested the services. The court expressly rejected an argument also made by the plaintiff in this case that the promise of the attorney to pay be implied from the conduct of the parties, custom, and a consideration of the nature of the attorney’s role in litigation and society generally. (50 Ill. App. 3d 661, 663.) In Associated Claims Service v. Rinella & Rinella (1979), 79 Ill. App. 3d 1023, 1027-28, a law firm employed the plaintiff to serve subpoenas in a case. The plaintiff sued to recover for its services but the court held that the law firm was not liable because it employed plaintiff while acting as an agent for a client, a disclosed principal.

Plaintiff’s reliance on Chapman v. Diedrich (1975), 26 Ill. App. 3d 365, is misplaced. Chapman involved a factual situation in which the authority of the agent to incur the architect’s services was in dispute. It is clear that an agent making a contract which he has no authority to make binds himself personally according to the terms of the contract. (Zamouski v. Gerrard (1971), 1 Ill. App. 3d 890, 896-97.) There is nothing in the record in this case to show that the service was unauthorized, and in fact the contingent fee agreement contains the usual provision that in the event it became necessary for the attorney to advance monies with reference to the performance of legal services, the client agrees to reimburse the attorney.

There is no doubt that Gardner told plaintiff that defendant was representing Ametta Jenkins. Her name also was on the medical records given to plaintiff. Plaintiff admitted that Gardner told him that defendant’s firm was representing Jenkins and, in fact, plaintiff conceded on cross-examination that he was told that a suit had been filed. Gardner testified that she told plaintiff that defendant represented Jenkins and that a suit had been filed. There was no showing, and no finding, that defendant had taken himself out of the disclosed principal rule by agreeing to be personally liable. Plaintiff testified only that he “assumed” that defendant would be liable. Gardner testified that she told plaintiff that Jenkins would ultimately pay. The letter from Gardner to Clark contests the reasonableness and propriety of the fee, but it is not inconsistent with the position that, in accordance with the employment agreement, Jenkins was remaining liable although defendant was advancing costs. And finally, there was no evidence that the defendant was unauthorized to secure the plaintiff’s services. Defendant was thus not personally liable for the plaintiff’s charges.

We do not consider defendant’s further claim that the trial court erred in denying his motion for summary judgment. After an evidentiary hearing a prior order denying summary judgment is not reviewable, any error in the denial being merged in the subsequent trial. Banwart v. Okesson (1980), 83 Ill. App. 3d 222, 225. See also Casson v. Nash (1977), 54 Ill. App. 3d 783, 788.

The judgment of the circuit court of Du Page County is reversed.

Reversed.

REINHARD and HOPE, JJ., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACOB RICHARDS, Defendant-Appellant.
    Second District
    No. 82—703
    Opinion filed October 7, 1983.

      Michael Melius, Public Defender, of Waukegan, for appellant.
    Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of Elgin, for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Jacob Richards, was found guilty of two counts of home invasion (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11), attempted murder (Ill.Rev. Stat. 1979, ch. 38, par. 8 — 4(a)) and armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2). He was sentenced to a term of six years’ imprisonment in the Department of Corrections and appeals, contending (1) that one conviction for home invasion was based upon the same physical act as the armed violence conviction, requiring that the latter be vacated; (2) that, alternatively, the armed violence conviction cannot stand as the evidence was insufficient to establish that defendant caused great bodily harm to the victim; and (3) that the State failed to prove defendant was not a peace officer acting in the line of duty at the time of the offenses of home invasion.

Evidence was presented at trial that on the evening of May 18, 1982, defendant went to the home in Fox Lake in which his estranged wife, Yvonne Richards, was living with their two daughters, Karen Knoll and Diane Johnson. Diane’s husband, Arthur, and their infant daughter also resided in the home. Defendant had been drinking beer at various taverns during that afternoon and early evening and he testified he recalled reaching the house at dark, but then blacked out and remembered nothing further until his subsequent arrest at the scene.

Other witnesses testified defendant forced his way into the house, although Arthur Johnson attempted to hold the door closed, and he was carrying a revolver. Defendant pulled the telephone off the wall, ordered Arthur to go into the living room and threatened to kill them all. He fired a shot into the wall near the infant’s crib, then struck Arthur repeatedly on the head with the gun. Arthur and defendant struggled, then defendant pointed the gun at Arthur’s chest and pulled the trigger three or four times; although it was loaded, the gun failed to fire because of a defective firing pin, and defendant attempted to reload it. Arthur knocked the gun from defendant’s hand, struck him and ordered him to get out. Defendant left the home and was arrested by police who had been called.

Other evidence was presented that Arthur Johnson sustained head injuries in the attack which required seven stitches, that he had been struck repeatedly with the gun and that his wounds bled profusely. Arthur Johnson, who was defendant’s son-in-law, also testified defendant was not a peace officer.

We note first that although defendant filed a post-trial motion, none of the issues presented for our review were included in it and are, therefore, waived unless they may be considered to be within the plain error exception of Supreme Court Rule 615(a) (73 Ill. 2d R. 615(a)). (People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091; People v. Thiel (1981), 102 Ill. App. 3d 28, 29-30, 429 N.E.2d 565, appeal denied (1982), 91 Ill. 2d 556.) We find that the plain-error exception does apply to defendant’s first claim of error and it will be addressed. See People v. Baynes (1981), 88 Ill. 2d 225, 231, 430 N.E.2d 1070; People v. Beasley (1982), 109 Ill. App. 3d 446, 449, 440 N.E.2d 961.

Under count I of the information defendant was convicted of home invasion for entering the dwelling and there intentionally causing injury to Arthur Johnson by striking him on the head with a weapon. (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11(a)(2).) Under count IV defendant was convicted of armed violence predicated upon the commission of home invasion in which he caused great bodily harm to Arthur Johnson by striking him on the head. (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11(a)(2).) Defendant argues that as each of these offenses was premised upon the same physical act — hitting Arthur Johnson on the head with the gun — he may not properly be convicted of both of them. (People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273; People v. Lewis (1983), 112 Ill. App. 3d 626, 628, 445 N.E.2d 916; People v. Rosa (1982), 111 Ill. App. 3d 384, 390, 444 N.E.2d 233.) Defendant asserts that his conviction for armed violence must, therefore, be vacated.

The State concedes defendant may not stand convicted of both offenses, but contends that it is the home invasion conviction under count I which should be vacated.

As charged in counts I and IV of the information, both home invasion and armed violence are premised upon defendant’s conduct in striking the victim upon the head causing injury. In such circumstances a judgment of conviction should be entered only for the more serious offense. (People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477.) Where, as in this instance, both armed violence and its predicate home invasion are Class X offenses, defendant may be convicted of and punished for either offense since neither is more serious than the other. (People v. Simmons (1982), 93 Ill. 2d 94, 98, 442 N.E.2d 891.) In similar circumstances the court in People v. Hert (1981), 95 Ill. App. 3d 871, 874, 420 N.E.2d 813, and People v. Green (1980), 83 Ill. App. 3d 982, 986-87, 404 N.E.2d 930, set aside defendant’s convictions for armed violence and we do so here. See People v. Crawford (1980), 90 Ill. App. 3d 888, 890, 414 N.E.2d 25; People v. Jones (1980), 89 Ill. App. 3d 1030, 1033-34, 412 N.E.2d 683, appeal denied (1981), 85 Ill. 2d 559.

Remandment for resentencing will not be required in this case (cf. People v. Hert; People v. Green). Defendant was convicted of four Class X felonies (he does not assert error as to the convictions for attempted murder under count III or home invasion under count II of the information) and was sentenced to a single six-year term of imprisonment. That was the minimum sentence allowed for each of these Class X offenses (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 1(a)(3)) and, if remanded for a new sentencing hearing, the trial court could not impose lesser sentences.

The remaining two issues raised by defendant were, as earlier noted, waived by his failure to preserve them in his post-trial motion. We have considered these claims and determine they do not constitute plain error. Our conclusion is fortified by the forthright admission in defendant’s brief by his counsel that he, too, considers these issues to be without merit. Counsel suggests, however, that it is his duty and responsibility to seek review of anything in the record which might arguably support an appeal.

We do not agree. Appointed counsel in the appeal of a criminal case has no duty to present for review nonmeritorious matters simply because they may conceivably have some connection with the record. The attorney must exercise his best professional judgment in evaluating the issues to be offered for review. (Jones v. Barnes (1983), 463 U.S. ___, ___, 77 L. Ed. 2d 987, 993, 103 S. Ct. 3308, 3312; Anders v. California (1967), 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396; People v. Jones (1967), 38 Ill. 2d 384, 231 N.E.2d 390.) We will not consider these issues further.

Accordingly, the judgment of conviction and sentence entered for armed violence under count IV of the information is vacated; in all other respects the judgment of the circuit court of Lake County is affirmed.

Vacated in part; affirmed in part.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.


author: JUSTICE GREEN

text:
    TOM BRINKOETTER & COMPANY, Plaintiff-Appellee, v. CRESTHAVEN COUNTRY CLUB, INC., Defendant-Appellant.
    Fourth District
    No. 4—83—0164
    Opinion filed October 5, 1983.
    Rehearing denied November 2, 1983.

      Vernon H. Houchen, of Decatur, for appellant.
    Michael J. Kehart and Mark D. Gibson, both of Welsh, Kehart, Shafter & Hughes, P.C., of Decatur, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On October 28, 1981, Tom Brinkoetter & Company, Realtors, filed a two-count complaint in the circuit court of Macon County against defendant, Cresthaven Country Club, Inc., seeking to recover a commission for the sale of realty. One count sought recovery under the terms of a listing agreement entered into between the parties. The other count sought recovery under the theory that even if plaintiff was not entitled to a commission under the contract, it was entitled to one because it had been the “procuring cause” of the sale of the covered property after the expiration of the term of the listing agreement and an additional grace period.

After a jury trial, the circuit court entered a judgment on December 22, 1982, on a general verdict in favor of plaintiff and against defendant fixing damages in the sum of $50,000. Defendant has appealed. We need only consider defendant’s contention that the evidence did not support recovery on either the terms of the listing agreement or the doctrine of “procuring cause.” We agree with defendant that the circumstances shown by the evidence did not permit recovery under either theory.

The evidence significant to our decision was virtually undisputed. Defendant owned a 60-acre tract improved as a country club, and an option to purchase an adjacent, unimproved 40-acre tract for $2,000 per acre. All of that land was in Macon County. In September 1980, plagued by financial problems, defendant entered into an exclusive listing agreement for the sale of the entire 100 acres described above. In its final form, the agreement stated that it would expire September 11,1981.

The listing agreement gave plaintiff the exclusive right to sell the property during the term of the agreement for the sum of $750,000. The provision for the listing broker’s compensation stated that defendant would pay plaintiff a 10% commission on any sale:

“made during the term of this listing, or within six months thereafter, if made to a purchaser with whom the owner, the listing broker or any other broker may have had negotiations upon said terms herein specified, or upon such terms as are acceptable to and accepted by Owner, during the term of this exclusive listing.” (Emphasis added.)

In late 1980, Dean Richard Blancett, a salesman for plaintiff, contacted C. Edward Taylor and subsequently negotiated with him concerning Taylor’s purchase of the 100 acres. A sale at a price of $650,000 was tentatively agreed upon, but the sale was not consummated because of Taylor’s lack of financing and inability to satisfy other requirements. Then, in March of 1981, at the demand of defendant’s principal creditor, Northtown Bank of Decatur, defendant placed the property in a land trust with that bank as trustee and defendant as beneficial owner. Defendant also agreed that if it had not sold the property by October 1, 1981, the bank could sell the property as long as it sold for at least $450,000.

After the property was placed in a land trust, Tom Brinkoetter, president and principal shareholder of plaintiff, indicated a willingness to purchase the property for $600,000. The evidence indicates that he took the position only after witnessing the difficulty involved in finding a purchaser. Defendant, acting through its board of directors, indicated that it would not sell the property then for that price, and made a 60-day lease of the property for oil well development. When that lease expired, further negotiations were conducted with Tom Brinkoetter, but no binding agreement was reached.

The property had not been sold by September 11, 1981. That was the date of the expiration of the listing agreement and the beginning of the “six months thereafter” period described in the provision of the listing agreement concerning the broker’s compensation. Prior to that date, plaintiff had asked for an extension of the listing agreement and defendant had refused to grant it. After that date, defendant decided to make its own sale of the property by asking for sealed bids with a minimum price of $490,000 required. Bids were solicited and on September 26, 1981, the bids were opened. The only bid was one in the sum of $500,000 by C. Edward Taylor and his mother, Georgiana Taylor. The bid was accepted. The purchase price was paid by Georgiana Taylor and defendant’s beneficial interest assigned to her. Plaintiff’s claim for a commission arose from this sale.

Plaintiff maintains first that the terms of the listing agreement entitled it to a $50,000 commission. The sale did take place within the six-month period. Plaintiff conducted considerable negotiations with C. Edward Taylor during the period of the agreement. We need not decide whether C. Edward Taylor could be considered to be a purchaser because we hold that the evidence failed, as a matter of law, to show that the sale was made on “terms as are acceptable to and accepted by [defendant] during the term of this listing.”

Plaintiff maintains that the sale price of $500,000 was “acceptable and accepted” by defendant during the term of the listing because in March of 1981, defendant agreed with Northtown Bank that after October 1,1981, the bank could sell the property for a price not lower than $450,000 if defendant had not sold the property by then. However, any acceptance by defendant of that figure was conditioned upon its failure to make a prior sale. After the March agreement, defendant originally found unacceptable Tom Brinkoetter’s proposal for a sale at $600,000. Only after the listing had expired and defendant had put the property up for bidding and been unable to get a higher price did defendant agree to a sale for $500,000. The fixing of the minimum price of the bidding at $490,000 was not an acceptance of that sale price because the possibility existed that defendant might get more. Its acceptance of a sale at $490,000 was contingent upon no greater price being offered.

Plaintiff’s contention that, regardless of the listing agreement, it was entitled to a commission because the sale occurred within a reasonable time after the expiration of the listing and it was the “procuring cause” of the sale, presents a complicated question. Although defendant contends that the sale was to Georgiana Taylor and not to C. Edward Taylor, for the purpose of our discussion of this issue we assume arguendo that C. Edward Taylor was a purchaser and plaintiff was the “procuring cause.” The issue is whether the “procuring cause” doctrine is applicable under the undisputed circumstances here including the fact that the listing agreement set forth the conditions under which plaintiff was entitled to a commission for a sale taking place after the expiration of the listing agreement. We conclude that the doctrine does not apply here.

Recognition that an agent, who was a procuring cause of a sale, may have a right to a commission, although the term of the contract of listing has expired before the sale has been consummated, has existed in this State since Griswold v. Pierce (1899), 86 Ill. App. 406. However, there, unlike here, the contract made no express provision for the circumstances when such a commission would be earned. In seeking to invoke the doctrine here, plaintiff relies partly upon the cases of Van C. Argiris Co. v. Caine Steel Co. (1974), 20 Ill. App. 3d 315, 314 N.E.2d 361, Graff v. Whitehouse (1966), 71 Ill. App. 2d 412, 219 N.E.2d 128, Chiagouris v. Continental Trailways (1964), 50 Ill. App. 2d 196, 200 N.E.2d 399, Hackett v. Farkas (1958), 19 Ill. App. 2d 309, 152 N.E.2d 475, and Doss v. Kirie (1956), 8 Ill. App. 2d 536, 132 N.E.2d 49. In Van C. Argiris and Graff the agent had been requested by the seller to continue efforts after the expiration of the listing agreement. In the other cases there was no formal listing agreement between the parties. However, the evidence in those cases supported a determination that the seller had expressly or impliedly requested the plaintiffs to find a buyer for the property sold. Here, defendant had expressly refused to extend the listing and there was no evidence even implying that it had sought for the plaintiff to continue to seek buyers.

More analogous to the instant case is that of Pilson v. Roush (1980), 82 Ill. App. 3d 187, 402 N.E.2d 906, where suit was brought by real estate brokers to collect a commission. The trial court had entered a summary judgment for the defendant. Similar to the situation here, the listing agreement gave the plaintiffs an exclusive listing for six months and an additional right to commission if a sale was made in a two-month period thereafter to one with whom plaintiffs had negotiated and about whom plaintiffs had notified the defendant-seller. Nine days after the end of the additional two-month period, a contract for sale was entered into with a couple whom plaintiffs had contacted. In reversing and remanding for a trial on the merits, the appellate court stated that a factual question existed as to whether (1) there had been an actual meeting of minds between the buyer and seller during the two-month period, and (2) plaintiffs had been the procuring cause of the sale. The court concluded that if both factors were found to exist, plaintiffs would be entitled to recover.

In Cunningham v. Aeschliman (1973), 54 Ill. 2d 227, 296 N.E.2d 326, the supreme court decided a case which concerned the law of Indiana in regard to the right of a broker to a commission. The plaintiff-broker and defendant-seller had agreed upon plaintiff having an exclusive listing with an additional right to a commission for a six-month period if a sale was made in that period to one who had been directly or indirectly obtained by the plaintiff. Within the additional period the defendant entered into a lease with an option to purchase with a purchaser obtained by the plaintiff. The option was exercised after the six-month period. In a split decision the court held that the plaintiff was entitled to recover on those facts. The opinion emphasized that the date of signing of the lease was the significant event rather than the date of the exercise of the option.

In Arthur Rubloff & Co. v. Comco Corp. (1978), 63 Ill. App. 3d 362, 380 N.E.2d 15, a judgment for a commission obtained by a leasing agent against a landlord was affirmed. The agent had procured the eventual lessee and engaged in lengthy negotiations, but the leasing had not been consummated within the time period in which a commission could be earned under the terms of the listing agreement. Evidence indicated that immediately upon the expiration of that time, the landlord had taken charge of negotiations. The court noted that the landlord had control of when the property would be ready for occupancy and thus controlled the time when the negotiations would be likely to result in an agreement. Under these circumstances, the appellate court held the evidence supported the award.

In situations where sales persons were the procuring cause of sales and certain other factors made it equitable for the recovery of commissions, the decisions in Pilson, Cunningham, and Arthur Rubloff permitted recovery in contradiction to the express terms of listing agreements. None of those situations existed here. The crucial condition of the listing agreement here required that a subsequent sale be at a price agreeable to and agreed on by the defendant during the original term of the agreement. No such provision restricted claims for commissions in those cases. Sale of property at least within the grace period was the crucial condition in Pilson. The appellate court found that a question of fact existed as to whether that condition had been informally fulfilled. In Cunningham, the execution within the required period of an option which was later exercised was held to be the equivalent of a completed sale. Nothing that occurred here during the listing period terminating September 11, 1981, could be deemed as either informal compliance with or the equivalent of an agreement by defendant to accept a sale price as low as $500,000. Unlike in Arthur Rubloff, the property here was not in a process of construction which could be controlled by the owner in such manner as to make it unavailable until the expiration of the stated period for the salesperson to earn a commission. Moreover, defendant did not negotiate with the Taylors after September 11, 1981.

Plaintiff’s being the procuring cause of the ultimate sale to the Taylors did not entitle it to a commission under the circumstances shown.

The failure of the evidence to support a ground upon which plaintiff can recover requires reversal of the judgment on appeal. It is so ordered.

Reversed.

MILLS and MILLER, JJ., concur.


author: JUSTICE JOHNSON

text:
    DAMAC, INC., et al., Plaintiffs-Appellants, v. ROBERT M. WHITLER et al., Defendants-Appellees. (Paul Olson, d/b/a Olson Airport, et al., Intervening Plaintiffs-Appellants).
    First District (4th Division)
    No. 82—925
    Opinion filed October 6, 1983.
    Edward A. Berman, of Berman, Roberts & Kelly, and Eugene T. Sherman, both of Chicago, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Paul J. Bargiel, of Doss, Puchalski, Keenan & Bargiel, Special Assistant Attorney General, of counsel), for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiffs and the class they represent are owners and operators of airplanes in Illinois. Plaintiffs-intervenors are retailers of aviation fuel in Illinois. This appeal is brought by the attorneys for plaintiffs and plaintiffs-intervenors to recover additional fees at the conclusion of this successful class action litigation.

The sole issue on appeal is whether the trial court abused its discretion in granting an amount of fees significantly lower than that sought by the two attorneys for the successful litigants. No appeal is taken from the judgment resolving the issues raised in the class action.

On May 15, 1978, plaintiffs, represented by Edward A. Berman, filed suit against defendants Illinois Department of Revenue and the Regional Transportation Authority (RTA), charging that defendants were imposing an unconstitutional tax on the purchase of aviation fuel. Shortly thereafter, plaintiffs-intervenors, represented by attorney Eugene T. Sherman, were permitted to intervene in the suit. The RTA was dismissed from the suit. Plaintiffs and plaintiffs-intervenors will be treated as one class since the cause proceeded in a manner common to both classes; therefore, hereafter, both will be referred to as plaintiffs.

On May 26, 1978, the trial court entered an order on plaintiffs’ motion as follows: (1) a temporary injunction was issued enjoining the Director of Revenue from turning over any taxes collected on the purchase of aviation fuel; (2) two segregated interest-bearing funds would be established for the purpose of depositing moneys collected via the tax; and (3) all taxes collected would be impounded until the matter was resolved.

No questions of fact were raised, and the cause came before the court on the pleadings for resolution of the legal issues. Defendants filed a motion to dismiss the complaint and dissolve the injunction. The motions were argued and briefed by the parties. On June 6, 1979, the trial court entered an order in favor of plaintiffs. The tax was found to be violative of the Illinois and Federal constitutions and further collection was enjoined. The court also held that if the matter were appealed, then defendant Illinois Director of Revenue should continue to collect the tax and deposit the money in a special interest-bearing account until a final decision by the reviewing court.

A procedure to refund the tax money collected under the unconstitutional tax was established. The trial court retained jurisdiction of the matter during administration and disbursement of the funds. Defendants did not appeal the trial court’s ruling.

On July 23, 1979, attorneys Sherman and Berman petitioned for an award of interim attorney fees of $25,000 each. On August 9, 1979, the court granted the petitions for the amount asked.

On September 13, 1979, the circuit court appointed Thomas Bridgman of Baker and McKenzie (trustee) to administer the funds and handle claims and other attendant matters. Attorney Kevin Forde was also appointed to assist the trustee in legal matters.

Agreements involving investment and control of the funds were reached with First National Bank of Chicago (escrowee). In February 1980, the trial court approved the trustee’s plan for notice, distribution, receipt and review of the claims against the funds.

On September 5 and 8, 1980, attorneys Berman and Sherman, respectively, filed “final” petitions for attorney fees. On November 7, 1980, the trial court entered an order on the petitions for final attorney fees as follows: Sherman was awarded $73,596.40 less $25,000 already received as interim fees; Berman was awarded $76,859.16 less $25,000 already paid as interim fees. In November 1981, attorneys . Berman and Sherman filed petitions for additional fees. Berman sought $8,700 and Sherman sought $8,250. On January 21, 1982, the trial court awarded them $2,046 and $1,000, respectively. It is from that order that this appeal was brought.

Attorneys Berman and Sherman contend that the trial court’s reduction of their fee petitions was an abuse of discretion because as attorneys for the plaintiff class they had a duty to the class which was different from that of the trustee. They argue that the trial court misapprehended their function and mistakenly assumed that appointment of the trustee ended their responsibility to the plaintiff class. They make additional arguments and cite support for their position that they had a special fiduciary relationship to the plaintiff class and were thus bound to participate in the matter until the trustee’s work was completed and the accounts closed.

Our supreme court has said that the amount of fees awarded in cases such as this is within the discretion of the trial court. (Leader v. Cullerton (1976), 62 Ill. 2d 483, 488, 343 N.E.2d 897, 900.) In a class action, the fee is not the result of a voluntary agreement between the attorney and his client. Rather, the fee is an amount taken by order of the court from money that belongs to others, and the amount is dependent upon the exercise of the court’s sound discretion. Fiorito v. Jones (1978), 72 Ill. 2d 73, 87-88, 377 N.E.2d 1019, 1025.

In Fiorito v. Jones, our supreme court quoted Leader v. Cullerton in defining the criteria for determining proper fees in class actions. That criteria is summarized as follows: (1) the total number of hours expended which benefited the class; (2) the manner in which the time was expended; (3) by whom; (4) whether the expended time benefited the class (hours which do not benefit the class are disallowed); (5) the court’s own knowledge, experience and expertise as to whether the time spent and the acts performed were reasonable as compared with other attorneys performing similar tasks. The court must not allow compensation for unnecessary, duplicative or inefficient work. Fiorito v. Jones (1978), 72 Ill. 2d 73, 89.

While we agree with the general principles regarding the duties of attorneys to the plaintiff class in a suit such as this, the crux of the issue in this case is whether the trial judge properly exercised his discretion.

There was a brief hearing prior to the trial court’s determination regarding the instant fee question. At that hearing, plaintiffs’ attorneys argued that their duties were not synonymous with those of the trustee and the trustee’s legal counsel. The trial judge indicated that he was aware of the duties and responsibilities of the parties. There is no indication that the trial judge was under any misapprehension of the legal duties owed by attorneys Berman and Sherman to the plaintiff class or that he intended to terminate their legal representation of the plaintiff class. The comments of the trial court during that hearing makes it clear that he considered a number of factors in making his decision. The court specifically mentioned the relatively uncomplicated nature of the litigation, the necessity of time expended on various matters, whether the class benefited from some of the activities and time expended by plaintiffs’ attorneys, whether the hourly rate was reasonable, and the fact that plaintiffs’ counsel had already received the fees petitioned for on two prior occasions. The trial judge commented that while he considered plaintiffs’ attorneys to be skilled and experienced, after considering all factors, he found it reasonable to reduce the final award from the $8,700 and $8,250 sought to $2,046 and $1,000 respectively.

An analysis of the reasoning in Fiorito v. Jones (1978), 72 Ill. 2d 73, 377 N.E.2d 1019 (when compared with the facts here), and its companion cases does not support plaintiffs’ attorneys’ contention that the trial judge was arbitrary and capricious in his determination. The fact that the judge did not award the exact amount of fees sought by plaintiffs’ counsel does not by itself establish abuse of discretion. He did not deny the fee petitions in toto, he simply awarded less than the total amount sought. We find no reason to disturb the trial court’s ruling. Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

ROMITI, P.J., and LINN, J., concur.


author: JUSTICE MEJDA

text:
    MERLE KIRSNER et al., Plaintiffs-Appellees, v. JOHNSON & JOHNSON PRODUCTS, INC., et al., Defendants-Appellants.
    First District (5th Division)
    No. 82—2725
    Opinion filed October 14, 1983.
    Reuben & Proctor, of Chicago (Don H. Reuben, Daniel A. Edelman, William J. Campbell, Jr., and Mark S. Sableman, of counsel), for appellants.
    Robert A. Holstein, Ltd., and Katz, Friedman, Schur & Eagle, both of Chicago, for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendants, Johnson & Johnson Products, Inc., and McNeil Consumer Products, Company, a division of Johnson & Johnson Products, Inc. (hereinafter both defendants referred to as “Johnson & Johnson”), appeal from that portion of the trial court’s order of October 15, 1982, which granted plaintiffs’ motion for a preliminary injunction relating to Johnson & Johnson’s announcements and advertisements. For the reasons which follow, that portion of the order is reversed.

This action was brought by the named plaintiffs as a class action to recover the purchase price of packages of “Extra-Strength Tylenol” (Tylenol), a Johnson & Johnson pain-reliever product, on behalf of “all those persons other than named plaintiffs who are similarly situated to the named plaintiffs in that they either surrender [sic] their Tylenol products to a local authority or disposed of the product so as to avoid its consumption.” The amended complaint was filed after a series of deaths in the Chicago area was allegedly connected to the ingestion of Tylenol and after withdrawal by Johnson & Johnson of the product from the market. Prior to a hearing on the merits of the complaint, the trial court granted plaintiffs’ motion for a preliminary injunction and other relief. The order in pertinent part directed Johnson & Johnson “if they make any announcement or advertisement relating to any exchange that they also make equal reference to, and opportunity for, the availability of a cash refund.” Johnson & Johnson now appeals from the quoted portion of the order.

Opinion

The only issue presented for review is whether the trial court erred in granting a preliminary injunction ordering Johnson & Johnson to make equal reference to the availability of a cash refund in its announcement or advertising of any exchanges. Although Johnson & Johnson has advanced several arguments to support its position that the trial court erred, we find one dispositive of the appeal, obviating the need for a discussion of the other arguments.

Johnson & Johnson asserts that the allegations of the complaint do not satisfy the requirements for the issuance of a preliminary injunction. “In order for a preliminary injunction to properly issue, the petitioner must establish a likelihood of ultimate success on the merits of the case [citation], and that there is a need to preserve the status quo to prevent an irreparable injury for which there is no adequate remedy at law.” (Bonner v. Westbound Records, Inc. (1977), 49 Ill. App. 3d 543, 546-47, 364 N.E.2d 570.) The standard of review is whether the trial court abused its discretion in issuing the injunction. Cross Wood Products, Inc. v. Suter (1981), 97 Ill. App. 3d 282, 285, 422 N.E.2d 953.

In the instant case, Johnson & Johnson argues that the plaintiffs have failed to demonstrate an irreparable injury to a protectable right. The class of plaintiffs alleged by the amended complaint includes only those persons who “either surrendered] their Tylenol products *** or disposed of the product ***.” The class as alleged thus does not include those persons who still possess suspect Tylenol. The injunction, however, concerns announcements and advertising designed to inform persons who still possess Tylenol of certain exchange programs. The injunction thus does not protect any rights of the class of potential plaintiffs, but only those of nonparties, namely, persons not included in such class. “Merely because the [plaintiff] has standing to sue does not mean that recovery or injunctive relief can be based on actual or potential injury to *** a nonparty to the suit.” (American Dairy Queen Corp. v. Brown-Port Co. (7th Cir. 1980), 621 F.2d 255, 258.) This rule has been applied consistently by the appellate court of this State in the context of preliminary injunctions. (See, e.g., Board of Education v. Eckmann (1982), 103 Ill. App. 3d 1127, 432 N.E.2d 298; Hayna v. Arby’s, Inc. (1981), 99 Ill. App. 3d 700, 425 N.E.2d 1174; Brooks v. Midas-International Corp. (1977), 47 Ill. App. 3d 266, 361 N.E.2d 815; compare U-Haul Co. v. Hindahl (1980), 90 Ill. App. 3d 572, 413 N.E.2d 187 (threat to legitimate business interests held sufficient injury).) As this court noted in Hayna, “the problem inherent in consumer actions is the inability to allege facts which would indicate that plaintiff is ‘likely to be damaged.’ Ordinarily, the harm has already occurred, thereby precluding injunctive relief.” (Hayna v. Arby’s, Inc. (1981), 99 Ill. App. 3d 700, 715, 425 N.E.2d 1174.) This rationale applies in the instant case: the named plaintiffs have already disposed of their Tylenol and therefore any announcement or advertisement directed to persons retaining Tylenol cannot damage the named plaintiffs nor the class which they represent in that they have already sustained their injury. Hi the absence of an allegation that the injury is likely to recur, plaintiffs have not demonstrated a threat of irreparable injury and the trial court therefore erred in granting the injunction. Accordingly, that portion of the order which granted the preliminary injunction is reversed.

Order reversed in part.

WILSON, P.J., and LORENZ, J., concur.


author: JUSTICE VAN DEUSEN

text:
    DONNA SPAFFORD, a/k/a Donna Coats, Plaintiff-Appellant, v. RICHARD COATS, Defendant-Appellee.
    Second District
    No. 82—816
    Opinion filed October 5, 1983.

      Russell E. Burns and Richard L. Turner, Jr., both of DeKalb, for appellant.
    Louis E. Neuendorf, of Sandwich, for appellee. .
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Plaintiff, Donna Spafford, appeals a directed verdict in favor of the defendant, Richard Coats, as to count I of her amended three count complaint entered in a bench trial by the trial court at the conclusion of the evidence adduced by the plaintiff.

In count I of her amended complaint for impression of a constructive trust plaintiff alleged, first, that she purchased a 1976 Chevrolet El Camino and paid the entire purchase price from her own funds and that said vehicle was titled in the name of the defendant only and that the sole reason for titling the vehicle in the name of the defendant was that the insurance premiums would be less. The plaintiff alleged that she has demanded that defendant convey title of said vehicle to her, or pay her the reasonable value of her interest in said vehicle, but he had refused to do so. Substantially similar allegations were made with reference to two Harley-Davidson motorcycles. Further, the plaintiff alleged in count I that she personally financed the $2,000 down payment on a 1980 Lincoln Mark VI purchased by the couple. Although the Lincoln’s title was listed in both their names, that auto, as well as the other aforementioned vehicles, allegedly remain in the possession of the defendant and he has denied plaintiff the right to use them. Plaintiff additionally alleged that she has demanded that defendant convey title to the Mark VI to her or pay her the reasonable value of her interest, the down payment of $2,000, but the defendant has refused. Plaintiff then asked that the court declare the defendant to hold the four vehicles in trust for plaintiff and order him to convey title to those four vehicles to plaintiff.

At trial, plaintiff’s evidence disclosed that in August of 1975 she moved into the residence of Richard Coats with her son and continued to reside with him until October 1981. In May or June 1976, a 1976 El Camino truck was purchased by the parties. The vehicle was to be used to pull a boat for recreational purposes. Plaintiff was working at General Electric at the time and agreed to finance the vehicle through the General Electric Credit Union. The loan obtained from the credit union was $5,972.61 and payments on the loan were subsequently deducted from plaintiff’s pay check. Plaintiff finished making payments on the account in June 1979. Since the vehicle had an approximate price of $6,000, the balance of the purchase price was obtained from a check drawn on the parties’ joint checking account opened in 1975. Prior to the purchase of the El Camino, plaintiff and defendant had expressly agreed that she would obtain the money for the truck; the defendant added that the truck had to be in his name for insurance purposes. Plaintiff also testified that in October 1981, following their separation, she requested the defendant convey title to the truck to her and give her possession of it, but defendant refused.

In April or May 1979, the parties purchased two Harley-Davidson motorcycles. The total purchase price for the vehicles was approximately $11,500. In order to pay for these vehicles, plaintiff arranged an $8,000 loan at the General Electric Employee Credit Union, and defendant traded in a motorcycle to pay for the $3,500 remaining on the purchase price. The loan obtained from the plaintiff’s credit union to purchase these motorcycles was fully paid back by plaintiff in June 1982.

Prior to purchasing the motorcycles, plaintiff and defendant had a conversation regarding title and use of these vehicles. Although plaintiff indicated to defendant during this conversation that she wished to have one of the motorcycles titled in her name, defendant refused to do so. Plaintiff testified that defendant claimed it would be impossible because of insurance purposes. Subsequent to their separation, plaintiff requested that defendant convey possession and title of one of the motorcycles to her, but defendant has refused.

In April 1981, plaintiff and defendant purchased a 1980 Lincoln Mark VI, with a purchase price of $12,000. As part of the purchase price on these vehicles, the parties traded in two Datsun automobiles. These cars had been titled in the defendant’s name but purchased from funds in the parties’ joint checking account. Plaintiff also withdrew $2,000 from her credit union to contribute toward the down payment.

The Lincoln auto was initially titled in the names of Richard and Donna Coats. However, upon moving out of defendant’s residence in October 1981, plaintiff signed over title to the defendant.

On cross-examination of the plaintiff, defendant elicited that plaintiff was not at any time married to the defendant. The parties never had any agreement, oral or written, concerning their respective property rights in property which either of them separately owned prior to living together, or in property acquired by either of them during their cohabitation. Plaintiff also admitted that defendant had contributed certain sums of money and purchased certain articles during the time they were living together. No testimony was elicited concerning the specific identity of these articles or the amount of money defendant had contributed while they lived together.

On December 17, 1982, after the close of plaintiff’s case, the court directed a verdict in favor of the defendant. Using Hewitt v. Hewitt (1979), 77 Ill. 2d 49, as the basis for its decision, the trial court noted that plaintiff had no claim to the vehicles since there was no contract with respect to the El Camino or the two motorcycles, and since plaintiff had given up her rights in the Mark VI by transferring the title to the defendant. Further, the court stated that even under equitable principles, plaintiff could not claim property rights in the vehicles because of her cohabitation with defendant: “while the money’s coming out of her salary perhaps on a deduction (to pay off the credit union loan), money is also coming out of his salary for support and maintenance.” In its judgment order the trial court found that the evidence wholly failed to establish the cause of action alleged in count I of plaintiff’s complaint.

Ordinarily, under Illinois law a constructive trust may be imposed where the person in possession of the property would be unjustly enriched if he were permitted to retain that property; the remedy is available in circumstances where one has received property which in equity and good conscience, he ought not be allowed to retain. Chicago Park District v. Kenory, Inc. (1982), 107 Ill. App. 3d 222, 224.

The principal issue presented by the parties on this appeal is whether the granting of such relief to the plaintiff, an unmarried cohabitant, is barred by the public policy enunciated in Hewitt v. Hewitt. Defendant also argues, however, that plaintiff’s proof contained no evidence upon which the trial court could determine the equities of the parties, even if the court were not barred from doing so by the public policy set forth in Hewitt.

This latter argument does not have merit. We recognize that in ruling on a motion for a directed finding at the conclusion of plaintiff’s case, a trial court, in a bench case, must weigh the evidence in reaching its decision. Happel v. Mecklenburger (1981), 101 Ill. App. 3d 107, 111.

However, from our review of the plaintiff’s evidence, even after the weighing process, we conclude that independent of the public policy considerations of Hewitt, there were sufficient facts to establish a prima facie case for the imposition of a constructive trust; and insofar as the trial judge’s ruling was based upon lack of evidence, it was against the manifest weight of the evidence.

The dispositive issue is whether plaintiff’s claims are barred by the public policy set forth in Hewitt. In that case, the Illinois Supreme Court held that an unmarried cohabitant’s claims were unenforceable because they contravened the public policy implicit in the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 102, 305) disfavoring the grant of mutually enforceable property rights to knowingly unmarried cohabitants.

Plaintiff would distinguish Hewitt on the grounds that in that controversy the unmarried cohabitant sought property rights similar to those in a valid and legal marriage, but based upon her claim upon mere cohabitation. In the present case, plaintiff asserts that since the claim to property is not founded simply upon proof of cohabitation or the plaintiff’s performance of domestic services, appropriate restitutionary remedies may be used to prevent unjust enrichment in property disputes between the cohabitants. Plaintiff argues that her demand for equitable relief such as a resulting trust, constructive trust, or contract implied at law is therefore not precluded by Hewitt.

In Hewitt, an unmarried cohabitant claimed property rights amounting to an equal share of the property accumulated by the parties during their period of unmarried cohabitation. While the claims in Hewitt were based primarily upon the rendition of housekeeping and homemaking services, the claimant in Hewitt argued that because her action was founded on express contract, her recovery did not imply that unmarried cohabitants acquire property rights merely by cohabitation and subsequent separation. Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 56.

In considering this argument, the Hewitt court first recognized that claims of this nature would more likely arise under common law principles of implied contract, equitable relief, and constructive trusts, rather than under any express agreement. The court also stated that it was aware of both the increase in judicial attention given to individual claims of unmarried cohabitants to their jointly accumulated property, and the fact that the majority of courts which have considered the question have recognized an equitable or contractual basis for implementing the reasonable expectations of the parties unless sexual services were the explicit consideration. 77 Ill. 2d 49, 57.

The Hewitt court found, however, that the issue of unmarried cohabitants’ mutual property rights cannot be characterized solely in terms of contract law, nor be limited to considerations of equity or fairness between the parties. (77 Ill. 2d 49, 57-58.) In determining whether to grant legal status to claims arising from such relationships, of even greater importance than the rights of the immediate parties were the public policy considerations involving both the institution of marriage and society in general. The Hewitt court found that the pro-marriage provisions in section 102 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 102) and the putative spouse provision of section 305 of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 305) indicated an Illinois public policy disfavoring the grant of mutual enforceable property rights to knowingly unmarried cohabitants; judicial recognition of such rights would violate that policy. (Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 66.) It is evident from Hewitt that regardless of both the merit of the claims and whether the claims are based on express contract or equitable grounds, a trial court must first determine whether the recognition of the claim contravenes the public policy disfavoring grants of mutually enforceable property rights to knowingly unmarried cohabitants.

The Hewitt court did recognize that cohabitation by the unmarried parties may not prevent them from forming valid contracts about independent matters, for which sexual relations do not form part of the consideration. (77 Ill. 2d 49, 59-60.) The court also noted that several sister States have recognized that housekeeping and homemaking services could constitute the consideration for an enforceable contract between cohabitants, severable from the illegal contract founded on sexual relations. Other jurisdictions have even stated that agreements in which the consideration was cohabitation may still be valid. However, in reviewing the cases of these other jurisdictions, our supreme court found naive the assertion that there are involved in these relationships contracts separate and independent from sexual activity. 77 Ill. 2d 49, 59-60.

We perceive the real and underlying concern of the supreme court in Hewitt was that judicial recognition of mutual property rights between knowingly unmarried cohabitants — where the claim is based upon or intimately related to the cohabitation of the parties — would in effect grant to unmarried cohabitants substantially the same marital rights enjoyed by married persons, resurrect the doctrine of common law marriage, and contravene the public policy enunciated by the Illinois legislature to strengthen and preserve the integrity of marriage. The plaintiff’s claims in Hewitt for one-half of defendant’s property were based primarily upon her services as housekeeper and homemaker and obviously fell afoul of the court’s concerns. However, where the claims do not arise from the relationship between the parties and are not rights closely resembling those arising from conventional marriages, we conclude that the public policy expressed in Hewitt does not bar judicial recognition of such claims.

Unlike the plaintiff’s claims in Hewitt, the claims of Donna Spafford are based on evidence that she furnished substantially all of the consideration for the purchase of several vehicles and that under the circumstances shown by the evidence adduced by the plaintiff, permitting the defendant to retain all of the vehicles would constitute an unjust enrichment which equity should not permit.

We conclude that the claims of the plaintiff are substantially independent of the nonmarital relationship of the parties and are not based on rights arising from their cohabitation. The judicial recognition of these claims would not indicate court approval or legal recognition of that nonmaritai relationship and would not violate the public policy of this State. The trial court erred in denying equitable relief on the ground that the public policy of the State barred him from considering these claims.

The judgment order of the trial court of October 18, 1982, in favor of defendant and against plaintiff on count I of plaintiff’s complaint is reversed and this cause is remanded to the trial court for the completion of the trial and other proceedings consistent with this opinion.

Reversed and remanded.

HOPE and NASH, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    HELEN PATREVITO, Ex’x of the Estate of James A. Patrevito, Deceased, Plaintiff-Appellant, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    Third District
    No. 3—83—0070
    Opinion filed October 13, 1983.
    George Coniglio, of Blue Island, for appellant.
    E. Kent Ayers and Roger D. Rickmon, both of Murphy, Timm, Lennon, Spesia and Ayers, of Joliet, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This action for declaratory judgment was commenced by Helen Patrevito as executrix of the estate of James Patrevito seeking a declaration of rights under an insurance policy issued by Country Companies. The circuit court of Will County granted the defendant’s motion to dismiss the complaint and this appeal follows.

Count I alleged that uninsured motorist coverage in a policy issued by the defendant was applicable to the death of James Patrevito caused by an unknown hit and run driver. Count II of the complaint sought recovery for vexatious delay in settling the claim. Defendant’s motion to dismiss the complaint alleged no uninsured motorist coverage was provided by the policy because the decedent, Patrevito, was not within the terms of the policy at the time he died.

According to the complaint and the numerous exhibits attached to it, on March 18, 1981, James Patrevito was operating a van, traveling northbound on 1-57. Because of extremely icy conditions, Patrevito lost control of his vehicle. It spun around and came to rest facing south off the paved travel portion of the road in the area designated as the shoulder. A vehicle operated by Kenneth Weig was caused by Patrevito’s spinning vehicle to also run out of control. This vehicle came to rest south of the Patrevito vehicle, also facing south of the area of the road designated as the shoulder.

Both drivers, James Patrevito and Kenneth Weig, alighted from their vehicles, checked their respective vehicles for damage while standing between them and discussed moving the vehicles. While conversing, both Patrevito and Weig were apparently struck by an unidentified motor vehicle.

Injuries suffered by James Patrevito resulted in his death on March 23, 1981. Weig sustained fractured ribs and injuries to his right shoulder and ankles.

Because of the icy conditions and because of the disablement of the Patrevito and Weig vehicles, other vehicles experienced difficulties. The affidavits of two other vehicle operators whose vehicles had left the highway but whose vehicles had not collided with either Patrevito or Weig were included with the complaint. No information was available concerning the vehicle which may have struck Patrevito and Weig or their vehicles, and the driver of such vehicle was also unknown.

The policy of insurance provides in pertinent part that an “uninsured motor vehicle” means:

<¡*** a jjit and run vehicle and neither the driver nor owner can be identified. The vehicle must hit an insured, a covered auto or a vehicle an insured is occupying. Part VI(A)(3)(d).”

An “insured” is defined as the person or organization shown on the policy as the named insured or:

“Anyone else occupying a covered vehicle *** Part VI(D)(2).”

The term “occupying” is defined as:

“*** in, upon, getting in, out or off. Part VI(A)(2).”

The trial court fund Patrevito was not an (insured) (named insured) and was not occupying an insured vehicle at the time of the incident. On this appeal the plaintiff argues the trial court erred in both holdings.

In our opinion Patrevito was an insured within the terms of the policy and for that reason this issue will be the only one addressed. The problem arises because the policy was issued to Patrevito’s Florist & Greenhouse. This business was owned by James Patrevito who was doing business under the aforementioned name with his wife Helen Patrevito, an active participant in the business.

The trial court held James Patrevito was not an insured or named insured in the policy because he was not so specifically named but rather the name of his business was designated, relying on Polzin v. Phoenix of Hartford Insurance Cos. (1972), 5 Ill. App. 3d 84, 283 N.E.2d 324. We believe the facts in the Polzin case are distinguishable from those in the case at bar and consequently a different result should ensue.

In Polzin, the policy of insurance was issued to “A.B.C. Lithoplate & Graining Services, Inc.” The policy covered two vehicles owned by the corporation. One of the vehicles was customarily used by Polzin, the injured party, who was also shareholder, President and chief operating officer of the corporation. He was injured while a pedestrian by an uninsured motor vehicle. The court in Polzin held the plaintiff had not sustained his burden of establishing that he was an insured in the policy but on the contrary was charged with knowledge that the Lithoplate corporation was the only insured so named. The court also held that extending the designation of insured beyond those named in the policy was not required by statute and would change the contract between the parties.

The major difference between the facts in the Polzin case and the instant case is that the designation in the policy in this case is not a corporation, is not an entity but is merely the name and style under which James Patrevito did business. This difference is of critical significance. Unlike the designation in Polzin in which the designation described a legal entity complete in itself as the named insured, the designation in this policy becomes meaningful only in reference to the person doing business under the designation. In its brief, the defendant suggests that the Polzin decision has broader implications to businesses as distinguished from individuals. However, we discern no such implications. In our opinion James Patrevito was the named insured under the policy under the name and style of the business which he operated. There was no entity which could bring an action on the policy. If any action were to be brought the action would be brought by James Patrevito.

For the foregoing reasons we conclude that the court erred in holding that uninsured motorist coverage was not afforded by the policy issued by the defendant.

With respect to count II of the complaint seeking damages for vexatious delay occasioned by the defendant in settling the claim, we conclude the trial court’s judgment dismissing this count was dependent upon its judgment dismissing count I. In view of our decision the trial court erred in its dismissal of count I, we believe it appropriate that count II be reconsidered by the trial court. This is particularly true since the count was disposed of without consideration of any evidence so that the reasonableness or unreasonableness of any delay is not easily ascertainable by allegations in the complaint.

For the foregoing reasons the judgment of the circuit court of Will County is reversed and this cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

ALLOY and HEIPLE, JJ., concur.