text:
    LAKE VIEW MEMORIAL GARDENS, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    Fifth District
    No. 5 — 83—0495
    Opinion filed April 17, 1984.
    Neil F. Hartigan, Attorney General, of Springfield (Imelda R. Terrazino, Assistant Attorney General, of counsel), for appellant.
    Robert L. Jennings, of Jennings, Tedesco, Flynn & Guymon, of Belle-ville, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiff, Lake View Memorial Gardens, Inc. (Lake View), brought the instant action for administrative review of a decision by the Illinois Department of Revenue (Department) that Lake View was liable for retailers’ occupation tax (see Ill. Rev. Stat. 1981, ch. 120, par. 440 et seq.) on its sales of burial vaults. The trial court reversed the Department’s decision, finding that the sales of burial vaults were incidental to the plaintiff’s sales of interment services and were, therefore, not taxable. On appeal the Department contends that the plaintiff’s activity of selling burial vaults was separable from its activity of providing interment services and that the plaintiff was thus liable for tax on the sales of the vaults as tangible personal property. We agree and accordingly reverse the judgment of the trial court.

The plaintiff, Lake View, is a not-for-profit, federally tax-exempt corporation that operates a cemetery in Belleville, Illinois. In addition to selling burial lots, the plaintiff provides concrete containers, or burial vaults, to house caskets for burial purposes.

The Department issued a notice of tax liability against Lake View for retailers’ occupation tax of $7,208.64 on its sales of burial vaults from January 1976 through March 1979, and a hearing was held pursuant to protest by the plaintiff. At the hearing David Tognarelli, an auditor for the Department, testified that he had audited the plaintiff and had found that the plaintiff, when contracting with purchasers of cemetery lots, had also sold burial vaults without charging tax on the sale price of the vaults. These vaults had been fabricated by the plaintiff above ground, and concrete had not been poured directly into the graves. Mr. Tognarelli stated that he had assessed a tax based upon the purchase price of the vaults but had given the plaintiff credit for tax that had already been paid on the cost of sand and other material used in making the vaults.

Loran Glock, manager of Lake View, testified that it is Lake View’s business to provide suitable space for the interment of deceased human beings and to maintain the burial site perpetually. According to Mr. Glock, it is necessary to the proper maintenance of a burial site that the casket be placed in a concrete vault to prevent the grave site from caving in when it rains. In order to keep maintenance costs reasonable, the plaintiff’s rules require that every interment be made with a concrete or steel burial vault. Thus, Mr. Glock stated, the plaintiff manufactures concrete vaults and makes them available to its customers at cost so as to make compliance with this requirement as easy as possible.

Mr. Glock testified further that the concrete vaults are sold only to lot owners on a “pre-need” basis and are not sold to the public at large. He stated, however, that families who purchase lots from. Lake View are free to purchase the required vaults from a funeral director or other source, as Lake View is “not in the vault business.” According to Mr. Glock, the average charge for interment rights at present is $300, and the purchase price of a burial vault is $200. These two figures would be listed separately on a sales contract rather than being stated as a lump sum covering both the interment rights and the burial vault. The reason for this is to give the lot owners the option of buying a permanent container from whomever they wish. The plaintiff’s records showed that in 1978 it sold 184 vaults at an average price of $76.84 per container for a total amount of $14,140.

Harry Bloomer, an administrative assistant for the plaintiff, testified that the use of concrete vaults in the cemetery greatly reduces the maintenance required for a burial lot because it eliminates the need for filling in, resodding and reseeding the ground in case the' grave sinks in. He stated that as far as he knew there was no other useful purpose for the concrete containers sold by the plaintiff. In response to questioning by the defendant, Mr. Bloomer acknowledged that the cost of care and maintenance of a burial site is the same regardless of whether the permanent container used is furnished by the plaintiff or purchased from another source. The proceeds from the sales of the vaults are kept by the plaintiff in a separate fund, and no part of the fund is used to cover the cost of maintenance.

Following the hearing, the Department adopted the hearing officer’s recommendation that the assessment against the plaintiff be upheld. This recommendation was based upon a determination that the Department’s rules regarding funeral directors and vendors of memorial stones evidenced a regulatory intent to tax the sales of the vaults even though these sales had been incorporated into a burial service. The hearing officer concluded, therefore, that the plaintiff’s sales of burial vaults were subject to retailers’ occupation tax despite the fact that the plaintiff operated a cemetery rather than a funeral parlor.

Upon administrative review the trial court reversed the Department’s decision and entered judgment for the plaintiff. In an extensive memorandum of judgment, the court found that the plaintiff’s “real” occupation was the selling of interment rights and that the sales of burial vaults were a necessary part of this service and thus incidental to the primary business of the plaintiff. The court stated:

“In the case at bar, the article sold, the concrete vault, has absolutely no value to the purchaser except as a necessary part of the services rendered by Lake View. In no way can the vault sales be construed to be the substance of the transaction. Rather, the sales of the vaults are merely incidental to Lake View’s service of providing suitable internment [sic] space.”

On appeal from this judgment the Department contends that the trial court misapplied the principles set forth by our supreme court for determining when a vendor is engaged in the business of selling at retail so as to be subject to retailers’ occupation tax. In particular, the Department asserts, the court failed to recognize that the plaintiff was engaged in two separable activities: the taxable selling of vaults at retail and the nontaxable furnishing of interment and maintenance services. The Department maintains that since the value of the vaults sold by the plaintiff was readily ascertainable apart from the value of the services rendered, and since the plaintiff’s maintenance services failed to affect or enhance the value of the vaults, the plaintiff came within the rule providing for taxation of a part of a taxpayer’s business involving the sale of personal property, even when that sale is carried on in connection with or in aid of another part of the taxpayer’s business that is itself exempt from tax.

Under the Retailers’ Occupation Tax Act, at issue in this appeal, a tax is imposed upon “persons engaged in the business of selling tangible personal property at retail ***.” (Ill. Rev. Stat. 1981, ch. 120, par. 441.) This tax is an occupation tax, imposed for the privilege of conducting a retail business, and is not a tax upon sales. (Snite v. Department of Revenue (1947), 398 Ill. 41, 74 N.E.2d 877.) Thus, not all sales of personal property sold at retail for “use or consumption, and not for the purpose of resale” (Ill. Rev. Stat. 1981, ch. 120, par. 440) are subject to tax under the Act, as such sales may be an inseparable part of a special service rendered the purchaser. In that case, “the occupation of the vendor is that of furnishing service, and he is not engaged in the business of selling, since he does not undertake to sell any articles except those necessary and incidental to the service rendered the purchaser; ***.” Snite v. Department of Revenue (1947), 398 Ill. 41, 45, 74 N.E.2d 877, 879.

Because the tax applies only to the business of selling tangible personal property at retail and not to the business of furnishing service, questions calling for the characterization of a taxpayer’s business have frequently arisen. (Sterling Steel Casting Co. v. Department of Revenue (1955), 7 Ill. 2d 244, 130 N.E.2d 262.) In Snite v. Department of Revenue (1947), 398 Ill. 41, 46, 74 N.E.2d 877, 879-80, the supreme court set forth the applicable rules for determining when a vendor is engaged in the business of selling at retail. The court stated:

“If the article sold has no value to the purchaser except as a result of services rendered by the vendor and the transfer of the article to the purchaser is an actual and necessary part of the service rendered, then the vendor is engaged in the business of rendering service and not in the business of selling at retail. If the article sold is the substance of the transaction and the service rendered is merely incidental to and an inseparable part of the transfer to the purchaser of the article sold, then the vendor is engaged in the business of selling at retail, and the tax which he pays for the privilege of engaging in such business is measured by the price which the purchaser pays for the article and the service incident thereto.”

The court continued, however, that

“[i]f the service rendered in connection with the article sold does not enhance its value and there is a fixed and ascertainable relation between the value of the article and the value of the service rendered in connection therewith, then the vendor is engaged in the business of selling at retail and also engaged in the business of furnishing service, and is subject to tax as to the one business and tax-exempt as to the other. [Citation.] A vendor may be engaged in the business of selling at retail within the meaning of the act and taxable because of such occupation, regardless of whether such selling at retail is carried on as his primary business or as an incident or an aid of his primary business. [Citation.]” 398 Ill. 41, 46, 74 N.E.2d 877, 880.

While, in the instant case, the trial court based its decision on the first of these rules in finding that the plaintiff’s sales of burial vaults were incidental to its primary business of furnishing interment and maintenance services, we agree with the Department that the plaintiff’s business is more properly characterized by the latter rule providing for taxation of a separable part of a taxpayer’s business involving the sale of tangible personal property. Two cases cited by the Suite court in support of this rule are likewise applicable to the situation at bar. In Continental Can Co. v. Nudelman (1941), 376 Ill. 446, 34 N.E.2d 397, the court held that the plaintiff’s sales of food items to its employees in conjunction with its nontaxable manufacturing business were subject to tax despite the fact that these sales, made for the employees’ convenience and without profit, were a mere incident of the plaintiff’s primary business of manufacturing. In considering the statutory language imposing a tax upon “the business of selling tangible personal property at retail,” the court stated:

“The sense in which the words ‘occupation’ and ‘business’ are used furnishes no basis to support the contention that they do not include a part of the business carried on as an incident or an aid of the primary business. It is only the isolated or occasional sales made by one who does not hold himself out as engaged in the business of selling this tangible personal property at retail that are expressly exempted by the act itself. *** The sales made by appellees were neither isolated or occasional, and there was an evident holding themselves out, at least to their employees, that they were engaged in the business of furnishing meals.” 376 Ill. 446, 449, 34 N.E.2d 397, 398.

Similarly, in Ahern v. Nudelman (1940), 374 Ill. 237, 29 N..E.2d 268, the court held that a part of the taxpayer’s business involving the sale of personal property was subject to tax although carried on in connection with other nontaxable service activities. The taxpayer was a funeral director who provided caskets, burial vaults, graveclothing and flowers as part of its service of conducting a funeral. The court distinguished cases cited by the taxpayer in which the sales involved were exempt from tax as an inseparable and incidental part of the services rendered. In those cases, the court stated,

“it was the skill or service that was bargained for and the property incidentally delivered had a value only as a result of such skill or service. There was no fixed or ascertainable relation between the value of the skill and the property to which the skill was applied to make it serviceable. In that respect such cases differ from the present one where the casket, vault or clothes always have a fixed or definitely ascertained price. In the case of caskets the wholesaler has a definite price which is used by the funeral director to fix a combined price for the property and service to his customer. The skill and service of the director does not enhance the value of the casket or render it more or less suitable for its purpose. *** None of the cases cited by appellants goes so far as to hold that identified articles of tangible personal property procured from a wholesaler for resale and transferred in the same form by a retailer for use or consumption, render the latter non-taxable merely because service is rendered in connection with the resale, which does not in any manner change the tangible character of the goods transferred.” (374 Ill. 237, 240-41, 29 N.E.2d 268, 269-70.)

The court concluded, therefore, that the funeral director who “transferred] for use a casket as a tangible article of personal property, and also [sold] service incidental to the use of the casket” (374 Ill. 237, 241, 29 N.E.2d 268, 270) was engaged in two separable activities of selling property and rendering service and was thus subject to tax on his sales of the personal property. See also Massell v. Daley (1949), 404 Ill. 479, 89 N.E.2d 361; Terrace Carpet Co. v. Department of Revenue (1977), 46 Ill. App. 3d 84, 360 N.E.2d 153.

Applying the rule of the Suite, Continental Can, and Ahern cases to the facts of the case at bar, we find that the plaintiff’s sales of vaults came within the two-part test there stated. Here, there was a fixed and ascertainable relation between the value of the vaults sold and the services rendered. According to testimony of the plaintiff’s manager, the price of a vault was a predetermined amount based upon the cost of making the vault to the plaintiff. This price was stated separately from the charge for the plaintiff’s services. Indeed, the purchaser of interment rights had the option of whether to purchase a vault from the plaintiff or someone else, and the amount he paid was determined accordingly. Moreover, unlike those situations in which the property concerned derived its value as a result of the services performed (see, e.g., Dow Chemical Co. v. Department of Revenue (1962), 26 Ill. 2d 283, 186 N.E.2d 333 (value of chemicals used in oil well treatment dependent upon plaintiffs skill and knowledge); Ingersoll Milling Machine Co. v. Department of Revenue (1950), 405 Ill. 367, 90 N.E.2d 747 (no tax on sale of custom milling machine manufactured through skilled engineering services of plaintiff); Babcock v. Nudelman (1937), 367 Ill. 626, 12 N.E.2d 635 (lenses and frames furnished by optometrist incidental to professional service rendered)), the plaintiff’s maintenance and burial services did not enhance the value of the vaults. Rather, the value of the vaults as permanent burial containers remained the same regardless of whether they were used in connection with the plaintiff’s services. The plaintiff, therefore, was engaged in the business of selling tangible personal property at retail so as to be liable for retailers’ occupation tax on the sales of the vaults.

This result obtains despite the fact, as the trial court found, that it was necessary to the maintenance of the grave sites that concrete burial vaults be used. While the plaintiff required the use of such vaults in order to provide proper maintenance services, the vaults could be obtained from any source, and the plaintiff sold vaults merely as an accommodation to its customers. Thus, with regard to its sales of vaults, the plaintiff was in the same position as another vendor of vaults such as an undertaker or vault company. Since the plaintiff’s maintenance services took place regardless of whether the burial vaults were obtained from it or from others, its sales of vaults were not a necessary part of the services rendered but were, rather, a separable activity subject to tax.

Under the reasoning of Continental Can Co. v. Nudelman (1941), 376 Ill. 446, 34 N.E.2d 397, the plaintiff’s sales of burial vaults were taxable even though they were an incident of the plaintiff’s primary occupation of furnishing burial and maintenance services. From the record it appears that the vaults were made available to all purchasers of interment rights and that the plaintiff’s sales constituted a regular part of its business. Thus, while a determination of taxability cannot be made solely on the basis of the quantity of personal property sold (American Brake Shoe Co. v. Department of Revenue (1962), 25 Ill. 2d 354, 185 N.E.2d 192), it is evident that the plaintiff held itself out to its customers as a seller of burial vaults and that its sales were more than isolated or occasional sales entitling it to an exemption under the Act.

We find support for the result reached here in the Department’s rule regarding the liability of funeral directors for retailers’ occupation tax, which was approved by the supreme court in Ahern v. Nudelman (1940), 374 Ill. 237, 29 N.E.2d 268. Rule 8 states in pertinent part:

“A funeral director is engaged in the business of selling tangible personal property to purchasers for use or consumption when he sells such items of tangible personal property as caskets, grave vaults, grave clothing and flowers to purchasers for use or consumption, and he is required to remit retailers’ occupation tax to the Department on his gross receipts from such sales. This is true even though he makes such sales as a part of a funeral.” (Emphasis added.)

While the trial court found that this rule was inapplicable to the instant case because the plaintiff’s sales of vaults were “a necessary incident” of the plaintiff’s service of maintaining grave sites, we have seen that there was nothing in the nature of the plaintiff’s service that changed the character of the vaults as tangible personal property. Moreover, the fact that the plaintiff’s vaults were sold at cost rather than for a profit, as in the case of funeral directors, is of no import, as liability for retailers’ occupation tax does not depend upon the existence of profit from a sale. (Time, Inc. v. Hulman (1964), 31 Ill. 2d 344, 201 N.E.2d 374.) Since the vaults sold by the plaintiff served the same function as those sold by others for a profit, the plaintiff’s sales of vaults, like those of funeral directors under Rule 8, constituted sales of tangible personal property so as to be subject to retailers’ occupation tax.

For the reasons stated in this opinion we reverse the judgment of the trial court and reinstate the Department’s assessment of liability against the plaintiff.

Reversed.

WELCH, P.J., and HARRISON, J., concur.


source: Caselaw Access Project

author: JUSTICE TRAPP

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES JOHNSON, Defendant-Appellant.
    Fourth District
    No. 4 — 83—0521
    Opinion filed April 10, 1984.
    Daniel D. Yuhas and Janet Sinder, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Robert J. Biderman and Perry Lee Miller, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Following a jury trial, defendant James Johnson was convicted of two counts of aggravated battery and sentenced to concurrent terms of three years’ imprisonment, the sentence to run consecutive to one he is currently serving. On appeal, defendant argues that (1) he did not effectively waive his right to counsel; (2) the trial court abused its discretion in failing to appoint a legal advisor for him; (3) he was denied a fair trial because the State presented irrelevant, prejudicial testimony; and (4) his sentence was excessive because it was disparate with his codefendant’s sentence. In view of our disposition of the first issue, we need not address defendant’s other arguments.

Defendant was charged with four counts of aggravated battery for allegedly striking two corrections officers at Pontiac Prison on February 22, 1983. On May 5, 1983, defendant and a codefendant, Hussen Kahn, appeared before the trial judge. The judge found both indigent and appointed the public defender to represent both of them.

After consulting with the public defender by telephone, defendant informed the court that he did not want the public defender as counsel. The court informed defendant that he had a right to be represented by the public defender or a right to self-representation. The court further explained to defendant that he was charged with four counts of aggravated battery and any sentence imposed would run consecutive to the sentence he was currently serving. Defendant was told he might get an additional 10 years’ imprisonment. Defendant stated he fully understood and wanted to represent himself. The court then vacated the appointment of the public defender.

On June 13, 1983, defendant moved for appointment of a bar association attorney. After explaining that counsel other than the public defender could be appointed only if a conflict of interest developed, the court denied defendant’s motion. Defendant then asked whether a legal advisor could be appointed. After speaking with the public defender, the court told defendant the public defender refused to sit in court to offer assistance to someone who did not want his advice. The court then gave defendant another opportunity to exercise his right to appointment of counsel. Defendant stated he would proceed pro se.

At trial on June 14, 1983, two corrections officers, Paul Bulzak and Terry Norgaard, testified for the State. Both officers testified defendant had hit them with a broomstick while they were engaged in a struggle with Kahn. Bulzak testified defendant had been in segregation, a place for “prisoners who can’t be kept in population due to various offenses like trying to stab someone.” Bulzak further stated he was acquainted with defendant because defendant had been brought into the prison hospital with a gunshot wound when Bulzak was present.

Defendant questioned no witnesses, did not testify, and made only a brief closing argument. The jury convicted him of two counts of aggravated battery. On July 26, 1983, the court sentenced defendant to concurrent terms of three years’ imprisonment to run consecutive to the sentence he was already serving. After a separate trial, Kahn received a sentence of 2V2 years’ imprisonment.

In order to establish a valid waiver of the right to counsel, the State must prove an intentional relinquishment of a known right or privilege. (People v. Aldridge (1980), 79 Ill. 2d 87, 93, 402 N.E.2d 176, 179.) Supreme Court Rule 401(a) (87 Ill. 2d R. 401(a)) provides:

“Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which a defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has the right to counsel and, if he is indigent, to have counsel appointed for him by the court.”

There can be no effective waiver of counsel without the proper admonitions. People v. Baker (1983), 94 Ill. 2d 129, 137, 445 N.E.2d 769, 773.

The rule provides a procedure which eliminates any doubt that a defendant understands the nature and consequences of the charge against him before a court accepts his waiver of the right to counsel and precludes him from waiving the assistance of counsel without full knowledge and understanding. (People v. Derra (1981), 92 Ill. App. 3d 1106, 1109, 416 N.E.2d 688, 690.) In Berra, we held strict compliance with the mandate of Rule 401(a) is required; substantial compliance is not enough.

The State concedes the trial court failed to inform defendant of the minimum sentence. In Berra, we reversed a defendant’s conviction because the trial court allowed him to proceed pro se without first informing him of the maximum and minimum possible sentences. The trial judge’s statement that the State had not waived the possibility of jail time was insufficient admonishment. People v. Derra (1981), 92 Ill. App. 3d 1106, 1112,- 416 N.E.2d 688, 692; see also People v. Shaw (1980), 89 Ill. App. 3d 69, 411 N.E.2d 143; and People v. Roberts (1978), 56 Ill. App. 3d 126, 371 N.E.2d 1284.

While the court told defendant the charges were four counts of aggravated battery, the court never informed him of the nature of those charges. In Derra, we relied heavily on the decision in People v. Brown (1980), 80 Ill. App. 3d 616, 399 N.E.2d 1374. The Brown court held the trial judge must personally inform defendant of not only the explicit charges but also the nature of those charges. The court added that Rule 401(a) further dictates the court determine that defendant understands those charges before accepting his waiver. (80 Ill. App. 3d 616, 622-23, 399 N.E.2d 1374, 1378.) Merely stating the charge and giving defendant a copy of the complaint, therefore, is not enough. People v. Montoya (1981), 94 Ill. App. 3d 6, 418 N.E.2d 84.

The State concedes that the trial court did not strictly comply with Rule 401(a), therefore, the State asks us to overturn Derr a and declare substantial compliance suffices. This we decline to do. Where the facts are insufficient to substantiate a knowing and intelligent waiver, every reasonable presumption against a finding of waiver will be entertained. (People v. Brown (1980), 80 Ill. App. 3d 616, 621-22, 399 N.E.2d 1374, 1378.) The conclusion that defendant has knowingly waived his right to counsel is based upon the totality of his responses to the court’s admonitions. No one admonition is either more or less important in this regard. People v. Morris (1982), 106 Ill. App. 3d 689, 693, 435 N.E.2d 1344, 1346.

In the present case, defendant did not truly wish to proceed pro se; rather, he wanted counsel other than the public defender. The trial court can force a defendant to choose either representation by the public defender or self-representation. (People v. Roofener (1981), 95 Ill. App. 3d 342, 420 N.E.2d 189; Brown.) Before the court allows defendant to represent himself, however, the court must strictly comply with Rule 401(a). The rule provides simple, minimum guidelines for advising defendant of the right to counsel and the implications of the trial before him. (People v. Brown (1980), 80 Ill. App. 3d 616, 622, 399 N.E.2d 1374, 1378.) The court’s admonitions did not meet those minimum guidelines.

For the foregoing reasons the judgment of the trial court is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

MILLS, P.J., and WEBBER, J., concur.


text:
    MERWIN O. GLASOE, Plaintiff-Appellee, v. JERRY TRINKLE et al., Defendants-Appellants.
    Fourth District
    No. 4 — 83—0354
    Opinion filed April 9, 1984.
    James Hagle, of Land of Lincoln Legal Assistance Foundation, Inc., of Champaign, for appellants.
    John E. Maloney, of Maloney & Davis, of Urbana, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendants Jerry and Diane Trinkle appeal from a judgment of the circuit court of Champaign County striking count II of their counterclaim which sought damages for the loss of use and enjoyment of a leased duplex resulting from an alleged breach of an implied warranty of habitability. The narrow issue for our review is whether an implied warranty of habitability extends to a lease of residential real estate in the absence of a building code applicable to such real estate. We affirm.

On August 18, 1978, plaintiff and defendants entered into an oral agreement to rent, on a monthly basis, a duplex located in St. Joseph, Illinois. Defendants tendered a security deposit and rent, and took possession of the premises until October 17, 1981, when they were constructively evicted from the duplex as a result of an inoperable furnace. Plaintiff-landlord later filed the present complaint, charging that defendants owed him rent in the amount of $960 for the months of July through October 1981. Defendants answered the complaint, denied that rent was due and owing, and set up four counterclaims and affirmative defenses seeking: damages resulting from their constructive eviction (count I), damages as a result of the plaintiff’s alleged breach of an implied warranty of habitability (count II), a return of defendants’ security deposit (count III), and indemnification for collect phone calls made by plaintiff to defendants’ phone (count IV).

On April 13, 1983, the trial court found that defendants had been constructively evicted; that they were entitled to rent credits for various bail bonds paid by defendants on plaintiff’s behalf; and dismissed count II of defendants' counterclaim, entering judgment for the plaintiff in the amount of $152.69. With regard to defendants’ second counterclaim, which is the only count before this court, the trial court reasoned that the counterclaim failed to state a cause of action because there was no building code applicable to the rental housing.

The sole issue presented in this appeal may be defined quite narrowly as whether the seminal opinion of Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, 280 N.E.2d 208, requires the existence of a building code to prove a breach of an implied warranty of habitability in a lease of residential real estate. In Jack Spring, the supreme court held that “included in the contracts, both oral and written, governing the tenancies of the defendants in the multiple unit dwellings occupied by them, is an implied warranty of habitability which is fulfilled by substantial compliance with the pertinent provisions of the Chicago building code.” (50 Ill. 2d 351, 366, 280 N.E.2d 208, 217.) Plaintiff argues that Jack Spring requires that there be an applicable building code before any duty arises to repair or improve leased premises, while defendants suggest that limiting Jack Spring to cities with building codes undermines the rationale of that opinion and unjustifiably discriminates between tenants living in cities with building codes and those living in areas where no building code exists.

The problem in the present case arises from the fact that the holding in Jack Spring was narrowly worded as applying to instances of building code violations while the reasoning of the court leads to the natural inference that the court was departing from the settled rule at common law that a landlord had no duty to repair or maintain leased premises, regardless of proof of a breach of a local building code. Quoting from Javins v. First National Realty Corp. (D.C. Cir. 1970), 428 F.2d 1071, the court in Jack Spring noted: .

“ ‘In our judgment the common law itself must recognize the landlord’s obligation to keep his premises in a habitable condition. This conclusion is compelled by three separate considerations. First, we believe that the old rule was based on certain» factual assumptions which are no longer true; on its own terms, it can no longer be justified. Second, we believe that the consumer protection cases discussed above require that the old rule be abandoned in order to bring residential landlord-tenant law into harmony with the principles on which those cases rest. Third, we think that the nature of today’s urban housing market also dictates abandonment of the old rule. ***’ ” 50 Ill. 2d 351, 363, 280 N.E.2d 208, 215.

In Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 417 N.E.2d 1297, the supreme court extended the implied warranty of habitability to single-dwelling units subject to municipal building codes affirming that the implied warranty of habitability applied to all leased premises and not just multiple-dwelling units, but the court did not decide whether the implied warranty applied in the absence of a building code. The court in Pole Realty recognized that the reasoning articulated in Jack Spring did not justify a restriction of its holding, but, nevertheless, the breach in Pole Realty was also alleged to have occurred because of violations of the Chicago building code. The court in Pole Realty did cite to several cases where proof of a breach of the implied warranty was held not to require evidence of building code violations, but these cases were not cited for such propositions. Foisy v. Wyman (1973), 83 Wash. 2d 22, 515 P.2d 160; Mease v. Fox (Iowa 1972), 200 N.W.2d 791; Lemle v. Breeden (1969), 51 Hawaii 426, 462 P.2d 470.

Although defendants would have us read Jack Spring as creating an implied warranty of habitability to apply to all leased real estate, two decisions in other districts of this appellate court have limited the rule in Jack Spring to cases alleging building code violations.

In Dapkunas v. Cagle (1976), 42 Ill. App. 3d 644, 356 N.E.2d 575, a tenant sued her landlord for personal injuries she sustained as a result of the landlord’s failure to maintain stairs leading to her apartment. Relief was sought on theories of negligence and implied warranty of habitability, although no building code violations were alleged. The fifth district of the appellate court affirmed the dismissal of plaintiff’s complaint noting that the implied warranty of habitability applied only to multiple-dwelling units (pre-Pole Realty) subject to building codes and that Jack Spring did not change the landlord’s tort liability for defective premises. In explaining the necessity of proving a building code violation, the court in Dapkunas relied heavily upon the fact that Jack Spring cited Schiro v. W.E. Gould & Co. (1960), 18 Ill. 2d 538, 165 N.E.2d 286. Writing for the court, Justice Jones explained that Jack Spring involved violations of the building code of Chicago and found it significant that the supreme court in Jack Spring pointed out that the situation then before it was analogous to that of an earlier case (Schiro v. W.E. Gould & Co. (1960), 18 Ill. 2d 538, 165 N.E.2d 286) where the court had held that an applicable building code was as much a part of a real estate sales contract as those parts enumerated by the parties. The opinion in Dapkunas notes that the supreme court then went on in Jack Spring to point out that the implied warranty of habitability would be fulfilled by substantial compliance with the pertinent provisions of the Chicago building code. Dapkunas concluded:

“By way of contrast, however, in the instant case plaintiff’s fifth amended complaint made no allegation of a violation of an applicable building code; nor did it even allege that a building code was in effect in Johnston City, Illinois. It can hardly be assumed, therefore, that plaintiff’s oral lease incorporated the provision of a building code just as if such provisions had been enumerated by the parties.” Dapkunas v. Cagle (1976), 42 Ill. App. 3d 644, 649-50, 356 N.E.2d 575, 579.

Following Dapkunas was Beese v. National Bank (1980), 82 Ill. App. 3d 932, 403 N.E.2d 595, which also upheld a dismissal of a complaint seeking damages for personal injury resulting from a breach of an implied warranty of habitability. The Beese court followed the reasoning of Dapkunas and denied recovery because no building code applied and plaintiff was suing for personal injuries. Again, the court relied upon Jack Spring’s citation to Schiro in support of its conclusion that Jack Spring did not intend to create new landlord common law duties but only a duty to obey municipal building codes which were implied in the lease between the parties.

Defendants criticize Dapkunas and Beese and assert that Jack Spring was meant to protect tenant’s expectations of a habitable dwelling and that such expectations exist whether or not a building code applies. They distinguish both Beese and Dapkunas as relating only to instances in which suits were brought to recover damages for personal injuries where judicial reluctance to extend the implied warranty of habitability has been most pronounced. They state that the court’s primary concern in those cases was in limiting landlord liability unless tort standards were met and that such hesitancy of extending the implied warranty of habitability to situations where no building code existed would not make sense if claims for personal injury were not involved. We are not persuaded by this distinction which defendants draw, for both Beese and Dapkunas expressly note the absence of an alleged building code violation as an alternative ground for decision. If, as defendants claim, both Dapkunas and Beese were unpersuaded that Jack Spring recognized a departure from traditional tort liability standards in the law of landlord and tenant and were focusing solely on that, any discussion of building code violations would have been unnecessary. Finally, the view adopted in Dapkunas and Beese was followed by this court in Auburn v. Amoco Oil Co. (1982), 106 Ill. App. 3d 60, 435 N.E.2d 780, and we are not persuaded that this decision has lost its validity in the short time since it has been decided. In Auburn, following Dapkunas and Beese, we held that personal injury damages were not recoverable under an implied warranty of habitability theory. As noted by Justice Green, writing for the court:

“In both cases [Beese and Dapkunas] the appellate court, in affirming the dismissal, held that the implied warranty recognized in Jack Spring did not arise unless the property was subject to a building code. Both courts also held that the complaints were also defective because no action for personal injuries can result from a breach of the implied warranty of habitability. Both courts indicated that an extension by them of the law of landlord and tenant was neither appropriate nor desirable. We are in general agreement with the reasoning of the courts in those cases.” 106 Ill. App. 3d 60, 64, 435 N.E.2d 780, 783.

We conclude that Jack Spring and Pole Realty do not require the extension of an implied warranty of habitability to leased residential real estate in the absence of a building code, unless and until further extension is required by the supreme court. We find no compelling reason to depart from what was said by this court in Auburn. Jack Spring’s reliance on Schiro also persuades us that the implied warranty of habitability becomes an implied covenant of a rental agreement only where an applicable building code provides a definite and ascertainable standard against which to measure the landlord’s duty of compliance.

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

Affirmed.

MILLER and WEBBER, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKIE BANKHEAD, Defendant-Appellant.
    Fourth District
    No. 4 — 83—0515
    Opinion filed April 9, 1984.
    Daniel D. Yuhas and Jerome McGuire, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On November 3, 1982, defendant, Rickie Bankhead, was charged in the circuit court of Vermilion County in Case No. 82CF230 with two counts of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)). Defendant had previously pleaded guilty to two unrelated counts of theft. At a January 7, 1983, sentencing hearing on the theft charges, the State introduced evidence of defendant’s conduct relating to the burglary charges. At the conclusion of this hearing, the trial court (1) sentenced defendant to concurrent terms of two years’ probation on the felony theft charge and one year of probation on the misdemeanor theft charge, with the condition that he serve a term of 90 days’ periodic imprisonment (Ill. Rev. Stat. 1981, ch. 38, pars. 16 — 1(e)(3), 16— 1(e)(1), 1005 — 7—1), and (2) noted that the evidence concerning defendant’s “subsequent criminal acts” was the only reason for the imposition of the term of periodic imprisonment.

Following a jury trial held on June 6, 1983, defendant was convicted of the offense of burglary. On June 21, 1983, the trial court sentenced him to a term of three years’ imprisonment on the burglary charge.

On appeal, defendant maintains the procedure used in this case violated Ms constitutional guaranty against double jeopardy. U.S. Const., amend. V.

The State contends that the constitutional double jeopardy issue has been waived because it was not raised by defendant in the trial. However, defendant did make a pretrial motion to dismiss based upon statutory double jeopardy (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4(a)(1)). At a hearing held on February 24, 1983, the trial judge noted that the procedure used might violate the constitutional guaranty against double jeopardy, but the judge did not dismiss the charge. We choose not to decide whether the issue was waived because we conclude that no constitutional double jeopardy occurred.

Defendant notes that the fifth amendment guaranty against double jeopardy prohibits multiple punishments for the same offense. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072.) Defendant maintains that he was punished twice for the same offense in this case where (1) the trial court, at the sentencing hearing on the theft charges, noted that the evidence of defendant’s conduct relating to the burglary charges was the only reason for the imposition of the 90-day term of periodic imprisonment, and (2) defendant was subsequently tried, convicted, and sentenced to a term of three years’ imprisonment on the burglary charges.

The sole issue presented for review is whether a trial court may properly sentence a person for certain criminal conduct after having considered such conduct as an aggravating factor in a prior sentencing hearing on unrelated charges. The parties have cited no case where a court has discussed the double jeopardy ramifications of such a procedure.

In analyzing this issue, we note that in order to select an appropriate sentence, it is essential that a sentencing court be in possession of the fullest possible information concerning a defendant’s life and characteristics. (People v. Evrard, (1965), 55 Ill. App. 2d 270, 204 N.E.2d 777.) In People v. Biggs (1967), 89 Ill. App. 2d 324, 231 N.E.2d 626, this court stated:

“Rigid adherence to restrictive rules of evidence applicable to the trial has no place in searching for information meaningful to the trial judge for use in arriving at a sentence. It seems to us abundantly clear that the trial judge is not only authorized to consider the subsequent criminal conduct of the defendant, but that his failure to do so could well result in sentencing absent the requisite relevant and material information.” 89 Ill. App. 2d 324, 327, 231 N.E.2d 626, 628.

We also note that courts have determined that procedures similar to the one at issue in this case do not violate the guaranty against double jeopardy. For example, the supreme court has determined that at sentencing the introduction of evidence concerning a defendant’s prior criminal conviction, as evidence in aggravation, does not violate the double jeopardy clause. (People v. Eldredge (1969), 41 Ill. 2d 520, 244 N.E.2d 151.) In such a case, the evidence of the criminal conduct is considered first in the proof to support the prior conviction and then in aggravation at the sentencing for the subsequent offense. Here, evidence of the criminal conduct was considered first in aggravation at the sentencing for another offense and then in proof of the instant offense. Logically, the sequence of the manner in which the evidence is considered should not determine whether the offender has been twice placed in jeopardy.

Here, the trial judge stated that evidence of the burglary offenses was the sole reason he imposed periodic imprisonment as a condition of probation for the thefts. Defendant places significance on the evidence being the sole reason for the greater severity of the sentence. We do not agree. The theory of Eldredge is that the defendant in that case was being punished for the offense for which he was charged and that consideration of the other offense in determining that punishment did not amount to punishing the defendant for the other offense. This would be so regardless of whether evidence of the other offense was the sole reason for aggravating a sentence or only one of several reasons for doing so.

We hold that the procedure used did not violate constitutional double jeopardy provisions and, accordingly, we affirm.

Affirmed.

MILLS, P.J., and MILLER, J., concur.


author: JUSTICE HARRISON

text:
    AMERICAN SAVINGS ASSOCIATION, successor in interest to Citizens Savings, Plaintiff-Appellee and Cross-Appellant, v. JOHN H. CONRATH et al., Defendants-Appellants and Cross-Appellees.
    Fifth District
    No. 5 — 83—0346
    Opinion filed April 6, 1984.

      Thomas A. Thebus, of O’Fallon, for appellants.
    Patrick M. Flynn, of Jennings, Tedesco, Flynn & Guymon, of Belleville, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

This appeal follows a judgment of foreclosure entered in the circuit court of St. Clair County. A judicial sale took place pursuant to this judgment, but was set aside by order of the trial court pending this appeal. The issues presented on appeal are (1) whether foreclosure should have been precluded as violative of the Illinois usury statute (Ill. Rev. Stat. 1981, ch. 17, par. 6404(2)(b)), (2) whether foreclosure should have been precluded as violative of Federal truth-in-lending regulations (12 CFR 226.8), and (3) whether foreclosure should have been precluded by the doctrine of equitable estoppel. The issues presented on cross-appeal are (1) whether the trial court acted properly in setting aside the judicial sale, and (2) whether the cause should be remanded to the trial court for a determination of the issue of defendant’s entitlement to attorney fees and costs incurred pursuant to the appeal.

On September 13, 1977, defendants John H. Conrath, Willard J. Conrath, Mary Beth Conrath, and Anna Conrath signed a note for $112,000, payable to Belleville Citizens Savings, predecessors in interest to plaintiff American Savings Association. As collateral for the loan, defendants mortgaged their interest in two eight-unit apartment buildings in the city of Belleville. The terms of the note called for the principal and interest to be paid in monthly installments of $902, beginning on the first day of October 1977. The instrument, as it appears in the record, proceeds to state, “The entire principal balance of this note will be due and payable five (5) years from date.” By two letters dated August 4, 1982, defendants were advised that their loan would reach maturity on September 13, 1982, and that current market conditions dictated an increase in the interest rate of the loan from 9% to 15% for the following 12 months. On August 26, 1982, defendants were notified by letter that if they failed to execute a proposed loan modification agreement subjecting the loan to the higher interest rate, the loan would be considered in default, and a foreclosure action would ensue. Defendants failed to execute the loan modification agreement, and plaintiff initiated the present action on October 8, 1982. Following judgment for plaintiff, a judicial sale was held on April 26, 1983. The order setting aside the sale was entered on May 9, 1983.

Additional documents furnished to defendants at the time the note was executed provided no indication that the balance of the loan was payable in five years. The loan settlement statement indicated only that the loan would be payable at a 9% interest rate in monthly payments of $902. The loan passbooks indicated a loan of 30 years at 9%. Federal truth-in-lending statements furnished to defendants stated that “¡pjayments for principal and interest on this transaction shall be 360 monthly installments of $902.00 beginning on the 1st day of October 1977 and due on the 1st day of each month thereafter.” Defendants John and Willard Conrath testified that they were unaware of the five-year call provision in the note, and that they would not have signed the note had they been aware of the provision. Each admitted, however, that he did not thoroughly read the note, and that the provision could have been present on the face of the note at the time of its execution. On direct examination, John Conrath alluded to an “experiment” conducted by himself and his attorney regarding the typed lines of the note:

“Q. With regard to the typing of this line [the five-year call provision], do you notice anything unusual about the way it’s typed?

A. Well, it’s - It’s regular typing from any standard typewriter. As far as unusual, it’s typed in between the standard form paragraphs. That’s about the only thing I could say is unusual about it, and the fact that it doesn’t seem to possibly be written at the same time.

Q. Okay. Did you and I conduct an experiment in my office with that - a copy of that same note with regard to how it was typed?

A. Yes, we did, uh huh.

Q. Okay, and if I could, just for purposes of illustration, let’s say that we were to draw a line on this note through the various lines of typing. Now, if you would refer to - This is a straight line, is it now, running down through the lines of typing?

A. Yes, it is.
Q. Okay, how many lines of typing does it run through?
A. It runs through four different lines of typewritten print.
* * *
Q. And what is the [fourth] typed line?
A. The next typed line reads, ‘The entire principal balance of this note will be due and payable five years from date,’ and the projected line projects down through that line and goes directly through a letter as opposed to between the spaces.
Q. Now, have you had an occasion to observe typed pages previously? I assume in your business you see typed pages?
A. Yes, that’s correct, uh huh.
Q. Do the letters that are typed on a page normally line up one above the other?
A. Yes, if you put it in the typewriter and type several lines, the typewriter make-up in itself will actually usually line the letters up to where the spaces are one above the other.
Q. What does this indicate to you as to the typing of that particular line?
A. Well, the only conclusion that I can draw from this little experiment is the fact that the main portion - main lines of the note being the amount and the other three lines that were typed were typed at one time, and the fourth line, which is the clause in question here about the five-year recall, was put into the typewriter at a different time and typed at a different time since they do not line up as they would had they been typed all at that one time.”

We consider first defendants’ contention that plaintiff’s calling of the note for defendants’ failure to execute the loan modification agreement was a violation of the Illinois usury statute (Ill. Rev. Stat. 1981, ch. 17, par. 6404(2)), which prohibits changes in interest rates on loans secured by residential property, except when such an increase is authorized by Congress or Federal regulatory agencies. Defendants argue that since the increase requested by Citizens Savings was unauthorized by congressional or regulatory action, plaintiff’s calling of the note was thus violative of the Illinois statute. Defendants’ assertion that the mortgaged apartment buildings are residential real estate within the meaning of section 6404, however, is unsubstantiated either by case law or dispassionate reason. The case of Brandenburg v. Country Club Building Corp. (1928), 332 Ill. 136, 163 N.E. 440, cited by defendants, held merely that the erection and management of an apartment building was not a breach of a covenant restricting property to residential structures. An installment contract for the sale of real estate acquired for the purpose of generating rental income has been held to be a “business loan” for purposes of the Illinois usury statute (Ill. Rev. Stat. 1981, ch. 17, par. 6404(l)(c), formerly Ill. Rev. Stat. 1975, ch. 74, par. 4(c)). (Huss v. Maras (1979), 77 Ill. App. 3d 554, 557, 396 N.E.2d 92.) Since it is undisputed that the loan executed by defendants in the instant case was for the purpose of acquiring the apartment buildings in order to generate and distribute rental profits, the property cannot properly be characterized as “residential property” within the meaning of section 6404. We therefore determine that the bank’s calling of the note on the basis of defendants’ failure to modify the loan agreement was not, in itself, a violation of State law.

We next consider defendants’ contention that plaintiff’s foreclosure action was a violation of Federal truth-in-lending regulations. Federal law in effect at the time the note was executed required specific disclosure, under certain circumstances, of the fact that a loan contained terms requiring the debtor to make any payment greater than twice the amount of an otherwise regularly scheduled payment. Defendants cite the following provisions of Federal regulation Z (12 CFR 226.8) as they existed in September of 1977:

“(b) Disclosures in sale and non-sale credit. In any transaction subject to this section, the following items, as applicable, shall be disclosed:
* * *
(3) The number, amount, and due dates of periods of payments scheduled to repay the indebtedness and, except in the case of a loan secured by a first lien or equivalent security interest on a dwelling made to finance the purchase of that dwelling and except in the case of a sale of a dwelling, the sum of such payment using the term, “total of payments.” [footnote] If any payment is more than twice the amount of an otherwise regularly scheduled equal payment, the creditor shall identify the amount of such payment by the term “balloon payment” and shall state the conditions, if any, under which that payment may be refinanced if not paid when due.”

The utilization of a 30-year amortization period in the truth-in-lending statements furnished to defendants was not, as such, a violation of Federal regulation Z, since the truth-in-lending regulations do not apply to credit transactions for business or commercial purposes. (15 U.S.C. sec. 1603(1) (1976).) (First National Bank v. Skidis (1980), 82 Ill. App. 3d 602, 403 N.E.2d 56.) Defendants argue that Citizens Savings’ successors should nevertheless be bound by the terms of these statements, since the lender, once having undertaken to furnish defendants with forms designed by the Federal government to insure that borrowers would be adequately informed of the conditions of their loans, should properly have expected defendants to rely on the information furnished by the statements. These statements plainly refer to “360 monthly installments of $902.00,” and make no reference to the “balloon payment” implicit in a five-year call provision. Since, as we have noted, Federal regulation Z is inapplicable to the instant transaction, the allegedly misleading truth-in-lending statements, together with the additional allegedly misleading statements and omissions in the loan passbooks and loan settlement statements, are properly elements to be considered in defendants’ final contention that foreclosure should be precluded on a theory of equitable estoppel.

Equitable estoppel is a doctrine invoked to prevent fraud and injustice (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 449, 220 N.E.2d 415). Employment of the doctrine requires the following elements: (1) the party against whom estoppel is asserted must, by word or conduct, have misrepresented material facts; (2) the party against whom estoppel is asserted must have known that the misrepresentations were untrue; (3) the party claiming benefit of estoppel must not have known that the misrepresentations were untrue; (4) the party against whom estoppel is asserted must have intended or expected that his or her misrepresentations would be acted upon by the party claiming benefit of estoppel; (5) the party claiming benefit of estoppel must have relied or acted upon the misrepresentations; and (6) the party claiming benefit of estoppel must be in a position of prejudice if the party against whom estoppel is asserted is permitted to deny the truth of the representations made. Stewart v. O’Bryan (1977), 50 Ill. App. 3d 108,109-10, 365 N.E.2d 1019.

The essential question, in light of these criteria, is whether the conduct of the lender was such as to constitute the requisite element of knowing misrepresentation, and whether defendants, relying on the misrepresentation, acted to their detriment in executing the note.

The record is capable of supporting two theories of misrepresentation. The first theory presupposes that the five-year call provision existed on the face of the note at the time defendants signed the instrument. In this situation, defendants, having failed to thoroughly examine the terms of the note, would have been induced to agree to terms other than those represented either by the lender’s conduct or the apparent provisions of other documents furnished to defendants pursuant to the note. Such inducement on the part of the lender is insufficient to constitute the misrepresentation requisite to estoppel. In Belleville National Bank v. Rose (1983), 119 Ill. App. 3d 56, 456 N.E.2d 281, we discussed the rule, well established in the courts of Illinois, that a defense of fraud is ordinarily unavailable to avoid the effect of a written agreement where the complaining party could have discovered the fraud by reading the instrument, and was in fact afforded a full opportunity to do so. Absent circumstances indicating a manifest inequality between the respective parties, one who is aware of the nature and character of the instrument one is signing cannot subsequently avoid the terms of the instrument by claiming that he or she was deceived by representations outside the instrument itself. (119 Ill. App. 3d 56, 61.) The record before us contains no evidence of such inequality in the positions of the respective parties. Furthermore, the label assigned to the conduct of the alleged wrongdoer is not in itself dispositive of the claim. (119 Ill. App. 3d 56, 59.) Thus, whether the allegation of deceptive conduct is presented pursuant to a theory of “fraud in the inducement,” as in Belleville, or asserted as a requisite element of “equitable estoppel,” as in the instant case, the allegation is in either situation ineffective provided that the disputed provision was present on the face of the note at its execution and the allegedly deceived party was afforded a full opportunity to read the instrument.

The second possible theory of misrepresentation is that the note was actually altered to include the five-year call provision after defendants placed their signatures on the instrument. In this situation, the misrepresentation would be sufficient to establish the requisite element of estoppel; however, the record does not demonstrate that defendants adequately met their burden of proof regarding such an alteration. Where it is admitted that the signature to an instrument is genuine, and there is nothing on the face of the instrument to create a suspicion that it was altered after its execution, the party seeking to avoid the instrument must prove such an alteration. (Osborn v. Rearick (1927), 325 Ill. 529, 534, 156 N.E. 802.) The only evidence of alteration offered at trial was defendant John Conrath’s aforementioned reference to the “experiment” conducted with regard to the manner in which the typed lines of the note lineally corresponded to the typed five-year call provision. Insofar as this experiment may be said to prove anything, it is that the five-year call provision was typed at a different time than the other typed provisions of the note. The experiment in no way proves that the five-year call provision was added to the note after defendants had signed it. The unsupported speculation of an interested party cannot alone establish the requisite proof of alteration, particularly where the party admits that he did not thoroughly read the instrument at the time he signed it. Cf. Miller v. Swanson (1965), 66 Ill. App. 2d 179, 213 N.E.2d 294.

Plaintiff cross-appeals from the trial court’s order of May 9, 1983, setting aside the judicial sale of April 26, 1983. The court reasoned that defendants reasonably relied upon a statement of the court, made in the course of a hearing on April 19, 1983, pursuant to defendants’ post-trial motion to set aside the judgment of foreclosure, that the sale scheduled for April 26, 1983, would be stayed, allowing defendants 30 days in which to post bond and file a notice of appeal. “While [defendants’] impression and that of their attorney was incorrect,” the trial court reasoned in its order setting aside the sale, “it was not unreasonable, and it has not been shown that [defendants] or their attorney acted in bad faith, nor is there any showing of prejudice to [plaintiff] if the sale were to be set aside.” A court may properly exercise its equitable powers and allow redemption of a foreclosure after the statutory time period has expired where the redemption may have been precluded due to fraud or mistake. (Mutual Life Insurance Co. v. Chambers (1980), 88 Ill. App. 3d 952, 957, 410 N.E.2d 962.) It is only reasonable that such an equitable extension should be allowed where the mistake, however inadvertently, is induced by the court itself. Our review of the record in the instant case, specifically the court’s statement made at the hearing conducted on April 19, 1983, supports the logic and equity of the trial court’s order. We thus conclude that the order setting aside the sale of April 26,1983, was properly entered.

Plaintiff further prays by cross-appeal that this court should remand the present action to the trial court for a determination of attorney fees and additional costs to plaintiff incurred by this appeal. The note and mortgages which are the subject of this appeal provided for the assessment of such fees and costs, and such an assessment was made at the time of trial. While it is not within the appellate court’s authority to assess a party’s entitlement to attorney fees and costs incurred on appeal, it is appropriate to remand the cause to the trial court for such a determination. (Haring v. Godbersen (1957), 13 Ill. App. 2d 95, 141 N.E.2d 90.) Because assessment of fees is explicitly provided for in the instrument which is the subject of this litigation, we believe that remand for such an assessment is appropriate.

For the foregoing reasons, the judgment of foreclosure is affirmed; the order setting aside the judicial sale of April 26, 1983, is affirmed; the cause is remanded for consideration of plaintiff’s claim regarding attorney fees and costs incurred on appeal; and for further proceedings with regard to an appropriate judicial sale.

Judgment affirmed; order affirmed; cause remanded for further proceedings consistent with this order.

WELCH, P.J., and JONES, J., concur.


author: JUSTICE MILLER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT E. NEAL, Defendant-Appellant.
    Fourth District
    No. 4 — 83—0223
    Opinion filed April 4, 1984.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Linda Welge, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

In May 1980 defendant, Robert Neal, was convicted of rape in a jury trial, and sentenced to a term of eight years’ imprisonment. He appealed from that conviction and we affirmed the trial court. (People v. Neal (1981), 92 Ill. App. 3d 1199, 423 N.E.2d 995 (Rule 23 order), appeal denied (1981), 85 Ill. 2d 560, cert. denied (1981), 454 U.S. 899, 70 L. Ed. 2d 216, 102 S. Ct. 402.) Neal filed a post-conviction petition in which he alleged that he had been incompetently represented at trial. After an evidentiary hearing, the petition was denied, and the defendant appeals. He contends on appeal that he was ineffectively represented at the trial level, and that the trial court erred in considering off-the-record observations in ruling on the post-conviction petition. We affirm the denial of the petition.

At the post-conviction hearing Neal testified that after he was arrested and charged with rape in Champaign County, he retained Archie Weston of Chicago as his lawyer. Neal had a 20-minute interview with Weston in January 1980. He explained the nature of the charge and told Weston the name and addresses of several alibi witnesses. Neal contacted the witnesses and asked them to testify on his behalf at trial. Weston conducted a 30-minute interview of the defense witnesses immediately before trial, but did not interview the alleged victim or any of the prosecution witnesses.

Brian Silverman, a Champaign County public defender, testified at the hearing as an expert in trial advocacy. He testified that he always asked potential witnesses about their background and the circumstances of the incident involved. Silverman said the level of competency of an attorney that did not interview witnesses until the day of trial was not “very high.” He further elaborated that that factor alone would not necessarily make the attorney incompetent.

Weston did testify at the hearing and Neal’s lawyer made an offer of proof as to Weston’s expected testimony. Weston had mishandled a client’s estate and in January 1980 had a $23,000 judgment entered against him. The Hearing Board and Review Board of our Attorney Registration and Disciplinary Commission investigated this case and recommended that Weston be disbarred. This disbarment proceeding was pending during Neal’s trial and Weston was subsequently disbarred. In re Weston (1982), 92 Ill. 2d 431, 442 N.E.2d 236.

Defendant asserts that he was denied effective assistance of counsel at trial, therefore we should reverse and remand for a new trial.

Defendant’s contention is based on Weston’s failure to interview alibi witnesses until the day of trial, and his subsequent disbarment. In an affidavit filed in the Illinois Supreme Court on December 22, 1981, in connection with Weston’s disbarment proceedings, he said that he had been under “extreme emotional stress” and “severe financial hardships over the past two years.” Defendant asserts that these factors indicate that counsel was incompetent.

The defendant cites two cases which were reversed because of Weston’s incompetence at trial. The State maintains, and we agree, that the cases are distinguishable. In People v. Williams (1982), 93 Ill. 2d 309, 444 N.E.2d 136, the Illinois Supreme Court reversed and remanded for new trial the defendant’s convictions for murder, aggravated kidnaping, and rape. The court pointed to several relevant factors in its decision, including: the failure to make a motion to suppress physical evidence — which was possibly crucial to the State’s case; the failure to object to various testimony; and the failure to make a motion for a new trial. The court also pointed out that this was a capital case, in which Weston defended three clients before two juries. The court did not apply either of the established tests for determining whether a defendant has been denied effective assistance of counsel. (See, e.g., People v. Lewis (1981), 88 Ill. 2d 129, 430 N.E.2d 1346 (appointed counsel); People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677 (retained counsel).) The court held that although Weston’s performance at trial could not be characterized as actual incompetence, “the unique circumstances and sequence of events in this capital case,” require that the defendant be granted a new trial. People v. Williams (1982), 93 Ill. 2d 309, 325, 444 N.E.2d 136, 143.

In People v. Rainge (1983), 112 Ill. App. 3d 396, 445 N.E.2d 535, the appellate court held that Williams’ codefendant was entitled to a new trial. The court followed the Williams line of reasoning, stating only that the “ ‘unique circumstances and sequence of events in this capital case *** will rarely, if ever, be duplicated ***.’ [Citation.]” 112 Ill. App. 3d 396, 413, 445 N.E.2d 535, 547.

We find that Williams and Rainge are similar to the case at bar in only one respect, i.e., Weston was the attorney in all three cases. In Williams and Rainge, Weston made several crucial errors: he failed to make a motion to suppress; he repeatedly failed to object; and he failed to make a motion for a new trial. Furthermore, Williams and Rainge were convicted of capital offenses in a complex trial. The defendant in the instant case was sentenced to eight years in a trial in which he was the only defendant. Weston asked the prosecution witnesses about inconsistencies in their testimony during cross-examination. He made a motion for a directed verdict at the end of the State’s case in chief. He put the defense witnesses on the stand in chronological order and elicited all of the relevant alibi testimony. During closing argument, he stressed the inconsistencies in the alleged rape victim’s testimony, and reiterated the defendant’s alibi. After the jury returned a verdict against the defendant, he had the jury polled. In reading the record as a whole, Weston made no serious errors at trial.

We hold that Williams and Rainge do not control in the case at bar, therefore the proper standard of review is the established test: whether the defendant’s representation is incompetent, and this incompetence produces “substantial prejudice to the defendant without which the result would probably have been different.” People v. Royse (1983), 99 Ill. 2d 163, 168, 457 N.E.2d 1217, 1220.

Defendant alleges actual incompetence of counsel based solely on counsel’s failure to interview defense witnesses until the day of trial. Defendant relies on People v. Krankel (1983), 113 Ill. App. 3d 992, 447 N.E.2d 1379, appeal allowed (1983), 96 Ill. 2d 546, in which we reversed and remanded for a new trial because the defendant’s counsel failed to investigate the only alibi witness named by defendant several months before trial. We held that counsel’s incompetence in failing to investigate a potentially crucial witness was significantly prejudicial to the defendant.

However, this case differs significantly from Krankel. In Krankel, the attorney did not interview and did not call the only alibi witness. In this case, Weston did interview the defense witnesses before trial and called each one at trial. Perhaps he should have spent more than 30 minutes with them or interviewed them before the day of trial. However, this, alone, cannot be characterized as incompetence. Counsel presented each witness in chronological order following the events of the evening in question. Each witness gave his account of what happened the night of the alleged rape. The jury was given all of the relevant facts and found the defendant guilty. Therefore, even if counsel had been ineffective, and we find that he was not, defendant was not prejudiced at trial.

Defendant also contends that the trial judge, in ruling on defendant’s post-conviction petition, erred in relying on off-the-record evidence, i.e., the trial court’s observations during trial.

The Post-Conviction Hearing Act (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1 et seq.) allows the judge wide discretion on the type of evidence admissible in a post-conviction hearing. (People v. Humphrey (1970), 46 Ill. 2d 88, 263 N.E.2d 77.) Furthermore, the judge may refer to evidence at the original trial. People v. Thomas (1960), 20 Ill. 2d 603, 170 N.E.2d 543.

The trial judge made several remarks when he ruled on the post-conviction petition. He had presided over the original trial, and had observed counsel’s presentation at trial. Counsel was on time, presented the evidence in an organized manner, and seemed to be relaxed. His remarks were all in reference to the original trial. The remarks about counsel’s demeanor reflect the opinion that the trial judge held of counsel’s performance as a whole, which is supported by the record.

The defendant argues that the judge should have recused himself. The post-conviction petition should be heard by the same judge that rendered the original judgment, unless there is a showing of substantial prejudice. (People v. Mamolella (1969), 42 Ill. 2d 69, 245 N.E.2d 485.) The trial judge has first-hand knowledge of the original proceeding and can thus correct any error that was made at trial. (People v. Sheppard (1950), 405 Ill. 79, 90 N.E.2d 78.) Therefore, the judge should not have recused himself since there was no showing of any prejudice to the defendant.

The judgment of the circuit court of Champaign County is affirmed.

Affirmed.

MILLS, P.J., and TRAPP, J., concur.