author: JUSTICE NASH

text:
    THE VENDO COMPANY, Plaintiff-Appellee, v. HARRY B. STONER et al., Defendants.—(VALLEY NATIONAL BANK OF AURORA, Third-Party Respondent-Appellant.)
    Second District
    No. 81 — 799
    Opinion filed July 14, 1982.
    Rehearing denied August 31, 1982.

      Charles J. Myler and James D. Skaar, both of Ruddy, Myler, Ruddy and Fabian, of Aurora, for appellant.
    Lambert M. Ochsenschlager, Wayne F. Weiler, and Craig S. Mielke, all of Reid, Ochsenschlager, Murphy and Hupp, of Aurora, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Third-party respondent, Valley National Bank of Aurora (Bank), appeals from a judgment entered against it for $115,146.95 in favor of plaintiff, the Vendo Company (Vendo), after a finding the Bank as a citation respondent violated section 73(4)(a) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 73(4)(a)).

Judgments obtained by Vendo against defendants Harry B. Stoner for $170,835 and Stoner Investments, Inc. (Investments) for $7,345,000 were affirmed (Vendo Co. v. Stoner (1974), 58 Ill. 2d 289, 321 N.E.2d 1, cert, denied (1975), 420 U.S. 975, 43 L. Ed. 2d 655, 95 S. Ct. 1398), and Vendo commenced supplementary proceedings to enforce them in the circuit court of Kane County. On January 4, 1975, a citation to discover assets was issued to the Bank, on order of a judge, directing it to appear before the court for examination concerning the property of the judgment debtor. The citation served upon the Bank, as authorized by section 73(4)(a), also contained the following notice:

“YOU ARE PROHIBITED from making or allowing any transfer or other disposition of, or interfering with, any property not exempt from execution or garnishment belonging to the judgement debtor or to which he may be entitled or which may be acquired by or become due to him and from paying over or otherwise disposing of any money not so exempt, which is due or becomes due to him, until the farther order of court or termination of the proceedings. ”

On January 17, a citation deposition was taken of Paul Manning, executive vice-president of the Bank, who produced documents and testified as to other matters, but did not disclose that the Bank held U.S. Treasury Notes having a par value of $110,000 which had been pledged to the Bank by Investments as collateral for a loan by the Bank to Lektro-Vend Corporation (Lektro-Vend). Lektro-Vend was not a party to the underlying litigation which resulted in Vendo’s judgment; however, Harry B. Stoner was the controlling shareholder of Investments and it was the controlling shareholder of Lektro-Vend. Stoner and members of his family also held 34 percent of the shares of the Bank, he was chairman of its board of directors and its business premises were owned by and leased from Investments.

On January 23, Stoner, Investments and Lektro-Vend filed suit against Vendo in the United States District Court alleging that Ven-do’s enforcement of its State court claims was in violation of Federal anti-trust laws and sought a preliminary injunction against Vendo. At a hearing held on February 14, the district judge suggested that the parties might enter into a “standstill agreement” to avoid the question of issuance of a temporary restraining order.. The judge inquired whether Vendo was willing to hold up on collection efforts and whether Stoner, Investments and Lektro-Vend would undertake not to transfer assets out of the ordinary course of business while the Federal court considered the evidence and briefs to be submitted to it. The parties, through their attorneys, agreed to those terms. Counsel for Vendo also advised the court that certain citations had been served prior to that time and that while their legal effects would remain, nothing further by way of enforcement would occur. The judge stated that “whatever their status was before, it continues to be.”

On March 6, however, at the direction of Harry B. Stoner, the Bank liquidated the treasury notes pledged to it by Investments to secure the loan to Lektro-Vend. The proceeds of $115,146.95 were applied to the $86,641 outstanding balance of the secured loan and also to payment of two other loans made by the Bank to Lektro-Vend, to-talling $13,666.30, which were not secured by that collateral. The Bank transferred the $14,839.65 balance from the treasury notes to Lektro-Vend as an “advance” at Stoner’s direction. This transaction was not revealed to Vendo by the Bank or the other parties at the .time it took place, but they learned of it at a later date.

The standstill agreement continued in force until June 27, 1975, when the district court entered a preliminary injunction restraining all collection proceedings by Vendo. (Lektro-Vend Corp. v. Vendo Co. (N.D. Ill. 1975), 403 F. Supp. 527.) On appeal the injunction was reversed by the United States Supreme Court (Vendo Co. v. Lektro-Vend Corp. (1977), 433 U.S. 623, 53 L. Ed. 2d 1009, 97 S. Ct. 2881), and the Federal litigation was finally dismissed in 1981.

At some time during the Federal litigation Vendo learned the Bank had held the treasury note collateral pledged by the judgment debtor, Investments, and had liquidated it and transferred the proceeds. On April 10, 1981, Vendo filed a motion in the circuit court of Kane County for judgment against the Bank, pursuant to section 73(4)(a) of the Civil Practice Act, in the amount of the value of the property of the judgment debtor allegedly transferred in violation of the restraining provisions of the citation. The Bank responded denying liability and at the hearing of Vendo’s motion for judgment Paul Manning, the Bank’s executive officer, testified he was aware of and had relied upon the standstill agreement made in the district court and that the transfer of funds from Investments to Lektro-Vend was carried out in the ordinary course of business as permitted by that agreement. Manning also testified he believed ownership of the treasury notes was transferred to the Bank when they were pledged as security and that they were not subject to disclosure under the citation. He further testified that the Bank made its decision to call the Lektro-Vend loan and liquidate the collateral because Lektro-Vend was suffering losses and the United States Comptroller of Currency referred to the loan as possible trouble. Frank Nemecheck, president of the Bank, testified that it had rejected Lektro-Vend’s application for additional loans. There was also evidence presented that the Bank had received an opinion from its attorneys that the treasury notes were not subject to the citation. After the hearing the judgment was entered from which the Bank now appeals.

The Bank contends first that the trial court erred in refusing admission of transcripts of the district court proceedings at which the “standstill agreement” was entered into between those parties. It argues the transcripts were relevant as evidence Vendo had waived its right to proceed against the Investment collateral held by the Bank and that Vendo is estopped to complain of the transfer of the treasury notes to which it implicitly agreed in order to avoid issuance of a restraining order against it. The Bank also asserts that the transcripts of the agreement offered evidence that Investments and Lektro-Vend could continue to operate and to transfer assets in the ordinary course of business, thus properly carrying out the treasury note transaction in question without violating section 73.

We agree that the transcripts, which have been preserved for our consideration by an offer of proof, ought to have been allowed in evidence. Each party is entitled to present evidence which is relevant and material to his theory of the case (Schneider v. Kirk (1967), 83 Ill. App. 2d 170, 180, 226 N.E.2d 655, 659, appeal denied (1967), 36 Ill. 2d 632), and evidence which tends to show conduct inconsistent with an opponent’s theory is admissible (Haffa v. Haffa (1969), 115 Ill. App. 2d 467, 474, 253 N.E.2d 507, 511, appeal denied (1970), 42 Ill. 2d 585; Vacker v. Yeager (1909), 151 Ill. App. 144, 152). Clearly, evidence that Vendo approved or consented to the transaction upon which it based its motion for judgment would be relevant and could be controlling of the outcome of the case. The trial court erred in refusing to admit and consider the transcripts and in denying the Bank’s offer of proof. Since they are contained in the record on appeal we will consider them as if the trial court had admitted them into evidence below. Phillips v. Salk, Ward & Salk, Inc. (1974), 20 Ill. App. 3d 359, 367, 314 N.E.2d 262, 268; Gundich v. Emerson-Comstock Co. (1960), 24 Ill. App. 2d 138, 143, 164 N.E.2d 512, 515, rev’d on other grounds (1960), 21 Ill. 2d 117,171 N.E.2d 60.

Estoppel is the good faith reliance by one party, to the extent of a change of position to his detriment, upon the conduct of the other as a result of which that other party will not be permitted to raise a contention inconsistent with his misleading conduct. (Terracom Development Group, Inc. v. Coleman Cable & Wire Co. (1977), 50 Ill. App. 3d 739, 747, 365 N.E.2d 1028, 1034; Allstate Insurance Co. v. National Tea Co. (1975), 25 Ill. App. 3d 449, 461, 323 N.E.2d 521, 530, appeal denied (1975), 58 Ill. 2d 596.) Consideration of the transcripts, however, the essential aspects of which we referred to earlier, does not find support for the Bank’s waiver or estoppel argument. At most, the agreement made in the Federal court required that Vendo not proceed in its collection efforts beyond the place it had reached at that point; no additional enforcement procedures would be undertaken by it, but the legal effect of the citation which had been served on the Bank would continue in force. It seems apparent the Bank could not rely upon the doctrines of waiver or estoppel to avoid the judgment imposed upon it. Nor can the Bank persuasively argue that the treasury note transaction was permitted as undertaken in the ordinary course of business. The collateral was held by it subject to the continuing restraints of the citation and its transfer in these circumstances may not be considered as undertaken in the ordinary course of business.

The Bank next contends the trial court erred in entering judgment for the entire value of the collateral without giving the Bank a right of set-off as the holder of a security interest. See Ill. Rev. Stat. 1979, ch. 62, par. 40.

Section 73(4)(a) of the Civil Practice Act provides, in part:

“The citation may prohibit the party to whom it is directed from making or suffering any transfer or other disposition of, or interfering with, any property not exempt from execution, a deduction order or garnishment, belonging to the judgment debtor *** until the further order of the court or the termination of the proceeding, whichever comes first. *** The court may punish any party who violates the restraining provision of a citation as and for a contempt, or if he is a third party may enter judgment against him in the amount of the unpaid portion of the judgment and costs allowable under this section, or in the amount of the value of the property transferred, whichever is lesser.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 110, par. 73(4)(a).

The Bank essentially argues that under section 73(4)(a) a citation respondent may not be restrained from transferring or making other disposition of property of the judgment debtor held by it where the property is exempt from “execution, a deduction order or garnishment.” It states that a proper interpretation of the penalty provision of the statute allows only a judgment against it for the value of the transferred property which is not so exempt, in this case the amount the value of the treasury notes exceeded the Bank’s security interest.

It is true that the Bank held the treasury notes as a security interest which arose prior to Vendo’s judgment and it was thus entitled to priority over the lien creditor. (Ill. Rev. Stat. 1979, ch. 26, par. 9— 301(4).) It is also true the Bank would have been entitled to a set-off had Vendo learned the Bank was holding property of the judgment debtor and instituted garnishment proceedings against it. (Ill. Rev. Stat. 1979, ch. 62, par. 40; Bee Jay’s Truck Stop, Inc. v. Department of Revenue (1980), 86 Ill. App. 3d 7, 13, 407 N.E.2d 755, 760, appeal denied (1980), 81 Ill. 2d 589.) The question presented by this case, however, is whether the Bank by failing to disclose it held this property of the judgment debtor and in transferring it to itself and others became subject to the penalty provisions of section 73(4)(a) for violating the restraining order of the citation.

In suggesting that the treasury notes were, in part, “exempt” from execution, a deduction order or garnishment, thus neither subject to disclosure under the citation or as a basis for imposition of a penalty, the Bank apparently considers that its position as a secured party holding property of the judgment debtor is equivalent to an exemption of that property from the requirements of the statutes relating to supplementary proceedings. It notes that a claim of an interest by a citation respondent in assets subject to discovery is determined according to the provisions of the garnishment act (Ill. Rev. Stat. 1979, ch. 110, par. 73(5)), and that property subject to a security interest is distributed first to satisfy that interest and only the balance applied to the judgment creditor’s claim. (North Bank v. F & H Resources, Inc. (1977), 53 Ill. App. 3d 950, 369 N.E.2d 174, appeal denied (1978), 71 Ill. 2d 598; see also Marcheschi v. P.I. Corp. (1980), 84 Ill. App. 3d 873, 405 N.E.2d 1230; Liberty Leasing Co. v. Crown Ice Machine Leasing Co. (1974), 19 Ill. App. 3d 27, 311 N.E.2d 250.) The Bank concedes that had it disclosed the treasury notes, Vendo would also have been entitled to tender the amount of the security interest and would then be entitled to possession of the notes (Ill. Rev. Stat. 1979, ch. 62, par. 46(b)), and argues that the most Vendo was deprived of by the Bank’s failure of disclosure was the difference between the required tender and the value of the notes. It concludes section 73(4)(a) only allows for a judgment against the citation respondent for that difference as representing the value of the nonexempt property transferred.

In considering the Bank’s argument, however, it becomes apparent it is premised upon an assumption the legislature intended that property exempt from “execution, a deduction order or garnishment” includes the treasury notes held as a security interest by the Bank as a citation respondent. We find no reference providing such an exemption in the statutes relating to that subject (see Ill. Rev. Stat. 1979, ch. 52; ch. 77, pars. 4, 10; ch. 62, pars. 39-47), and conclude the legislature did not so intend.

Supplemental proceedings under section 73 of the Civil Practice Act are designed to provide a statutory foundation for an efficient and expeditious procedure to compel discovery of assets of the judgment debtor and their application to payment of the judgment. (Ill. Ann. Stat., ch. 110, par. 73, Committee Comment, at 398 (Smith-Hurd 1968).) While certain exempt property is outside the scope of section 73, the legislative scheme clearly requires the citation respondent to hold property of the judgment debtor in its possession in status quo until the judgment creditor’s rights can be determined. (Kirchheimer Brothers Co. v. Jewelry Mine, Ltd. (1981), 100 Ill. App. 3d 360, 362, 426 N.E.2d 1110, 1113.) That was the direction of the citation served upon the Bank and which it disregarded. Section 73(5) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 73(5)) and sections 8 and 10 of the garnishment act (Ill. Rev. Stat. 1979, ch. 62, pars. 40, 42) provide means by which conflicting claims or off-setting demands against property may be determined by the trial court and make no allowance for the unilateral disposition of such property without disclosure as in this case.

The Bank principally relies upon Bee Jay’s Truck Stop, Inc. v. Department of Revenue (1980), 86 Ill. App. 3d 7, 407 N.E.2d 755, appeal denied (1980), 81 Ill. 2d 589, for its argument that the statutory sanction applied against it improperly failed to allow for set-off of the sum secured by the pledge of the treasury notes by the judgment debtor. There, a garnishee bank upon being served with summons immediately exercised its right to set-off by deducting from the judgment debtor’s funds on deposit the amount owed to the garnishee on a promissory note; it also at that time disclosed the balance remaining and subsequently disclosed the total sum held by it at the time it was served with summons. The reviewing court concluded that because the set-off was in fact made at the time of garnishment, that garnishee did not lose its set-off right as it had complied with the garnishment proceedings. Compare Burke v. Congress Hotel Co. (1935), 280 Ill. App. 493; see also Pines Trailer Corp. v. Roaring Express Co. (1970), 127 Ill. App. 2d 46, 261 N.E.2d 709; Alexander v. Live Stock National Bank (1935), 282 Ill. App. 315; Stevens v. Dillman (1877), 86 Ill. 233; Hotpoint v. Granite City Furniture, Inc. (1979), 76 Ill. App. 3d 1037, 395 N.E.2d 639, appeal denied (1980), 79 Ill. 2d 626.

Not so, however, in the present case. The Bank here failed to disclose at the citation hearing on January 17, 1975, that it held property of the judgment debtor and it was not until March 6 that it purported to exercise its right to a set-off. The Bank then liquidated the treasury notes for $115,146.95, paying itself $100,307.30 although it only had a secured claim of $86,641. The $14,839.65 balance remaining was given over by the Bank to Lektro-Vend under unclear circumstances. Vendo did not learn of the existence of the judgment debtor’s property or its disposition until much later when it learned of the transaction during discovery proceedings in the Federal litigation.

We find in these circumstances the Bank lost its right to set-off and that the trial court properly imposed the sanction provided by entering a judgment for the full value of the treasury notes thus removed out of reach of the judgment creditor in violation of the command of the citation. To conclude otherwise would foster nondisclosure of property held by a citation respondent contrary to the clear purposes of the statute.

The Bank also contends that section 73(4)(a) of the Civil Practice Act is unconstitutional insofar as it permits a citation to be issued by a clerk in the form of an injunction or restraining order. In this case, however, the clerk of the court issued the citation on the written order of a judge and we will not consider that issue further. See, e.g., Ill. Ann. Stat., ch. 110, par. 73, Historical & Practice Notes, at 401-02 (Smith-Hurd 1968).

The Bank has also contended that the evidence did not support the additional finding by the trial court in support of the judgment that the transfer of the treasury notes was a fraudulent conveyance. As we have determined the judgment was properly entered under section 73(4Xa) of the Civil Practice Act, we need not consider this issue.

Accordingly, the judgment of the circuit court of Kane County will be affirmed.

Affirmed.

UNVERZAGT and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HEIPLE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHIRLEY J. TANZY, Defendant-Appellant.
    Third District
    No. 81 — 582
    Opinion filed July 12, 1982.
    Rehearing denied August 31, 1982.

      Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

On November 17, 1977, Shirley Tanzy, the defendant, was charged with attempt murder (Ill. Rev. Stat. 1977, ch. 38, pars. 8 — 4(a), 9— 1(a)(1)), and cruelty to a child (Ill. Rev. Stat. 1977, ch. 23, par. 2368). A bench trial ensued. On March 8, 1978, a Kankakee County circuit judge acquitted defendant on the charges by reason of her insanity at the time the offenses occurred. Defendant was committed to the Department of Mental Health for one year. On July 2, 1979, defendant’s petition for discharge was denied. On September 2, 1981, a hearing was conducted so the trial court could set a maximum period of commitment for defendant. (People v. Thiem (1980), 82 Ill. App. 3d 956.) The trial judge committed defendant to the Department of Mental Health for her life. Defendant appeals from this order.

Because the trial court erred in concluding she had a maximum term of commitment for life, Mrs. Tanzy contends, this cause must be reversed and remanded for a new commitment hearing. The People agree that error occurred in calculating the maximum period of commitment, but say no remand is necessary.

The statute (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—4(b)) in effect at the time defendant was acquitted defines a trial judge’s responsibility as to committing such a defendant. It provided, in part:

“*** that the initial order for admission of a defendant acquitted of a felony by reason of insanity shall be for an indefinite period of time; provided, however, that such period of commitment shall not exceed the maximum length of time that the defendant would have been required to serve, less credit for good behavior, before becoming eligible for parole had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity.”

Under this statute a trial judge’s duty is reasonably clear. He must determine the most punitive sanction that could have been imposed upon conviction for the most serious crime charged less credit for good behavior. The time for commitment is indefinite. But by operation of law the maximum period of commitment is computed by reference to the relevant sentencing scheme. What this means is that the sentencing judge is charged with the duty of determining the maximum possible sentence, less credit for good behavior. That period is then established as the outer limit of the defendant’s commitment. The commitment is, of course, indefinite. Thus, the defendant may be released at any time up to that maximum if determined to be sane. If not determined to be sane, however, the defendant cannot be held beyond that maximum under this particular commitment scheme. Commitment beyond that time could only arise by virtue of other proceedings.

If defendant had been convicted for attempt murder, the maximum time she would have to serve in prison before becoming eligible for parole was 20 years. (Ill. Rev. Stat. 1977, ch. 38, par. 1003 — 3—3(a)(1).) When statutory credit for good behavior is computed, that term could possibly be reduced to 15 years. (Ill. Rev. Stat. 1977, ch. 38, par. 1003— 6 — 3(a).) Hence, this maximum period less time off for good behavior is the length of time for which defendant could be committed to the Department of Mental Health.

The trial judge was wrong in computing the defendant’s commitment order. If defendant had been convicted of attempt murder, life imprisonment was not a possible punishment. Also, in his commitment order, the trial judge did not make clear whether he was using the old indeterminate sentencing scheme (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 5—1 et seq.), or the new determinate sentencing statute (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 5—1 et seq.), which became effective February 1,1978. Mrs. Tanzy was originally committed on March 8,1978.

Under the new determinate sentencing statute, defendant was subject to a maximum penalty, if convicted of attempt murder, of 30 years imprisonment. (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4(cXl), 1005 — 8—. 1(3).) When one day’s credit against the aggregate sentence is allowed for each day served, the 30-year term is reduced to 15 years. (Ill. Rev. Stat. 1979, ch. 38, par. 1003 — 6—3(2).) Interestingly, and coincidentally, the maximum sentence under the old sentencing statute is exactly the same as under the new act when the statutory good-time credit is allocated. Thus, although the judge erred in not specifying which act was being utilized, and further erred in not determining whether defendant was competent to make an election as to which statute she wanted utilized, such errors were harmless. The result is the same. If competent for the purpose of making an election, defendant should be allowed to elect. The defendant has the statutory right (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1008 — 2—4(b)) to have the maximum period of commitment computed under the sentencing statute existing at the time the offense was committed (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 1—1 et seq.), or at the time she was committed (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 1—1 et seq.).

The People urge we calculate the term of the commitment order, set the maximum penalty, and not remand the case. We agree this should be done for reasons of judicial economy. Since the only correct sentence that could have been imposed in this cause under either the old or new sentencing statutes was 15 years, we fix the maximum term of commitment at 15 years. Remand here would serve no useful purpose.

The fact that a defendant sentenced to prison may be eligible for compensatory good-time credits to further reduce a sentence is a factor which a trial judge cannot take into consideration in this type of insanity commitment. Compensatory good time is administered by the Department of Corrections and is based on the inmate’s conduct while in prison. If a prisoner performs meritorious service while in prison, reduction in prison time can accrue; otherwise, no reduction is possible. Consequently, the proper calculation of such credits, if any, is left to the Department of Corrections. In the case of an insanity commitment, we do not believe the defendant is entitled to such credits. Mrs. Tanzy is not imprisoned. She is committed for an indefinite term with an outer limit of 15 years. She can be released at any point sooner than 15 years that her mental condition warrants.

For the reasons stated, we reverse the judgment of the Kankakee County circuit court fixing the defendant’s commitment to the Department of Mental Health at life. We fix her maximum term of commitment to the Department of Mental Health at 15 years. The order of commitment is modified accordingly.

Reversed. Judgment modified.

BARRY, P.J., and ALLOY, J., concur.


author: JUSTICE WEBBER

text:
      In re MARRIAGE OF PATTY ANN MILLER, Petitioner-Appellant, and ROBERT J. MILLER, Respondent-Appellee.
    Fourth District
    No. 4 — 82—0235
    Opinion filed July 19, 1982.

      Greaves, Lerner & Gadau, of Champaign, for appellant.
    Tepper & Gwinn, of Urbana (John Gwinn, of counsel), for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

In this appeal we are again called upon to adjudicate yet another aspect of the dissolution of the marriage of these parties. In In re Marriage of Miller (1980), 88 Ill. App. 3d 370, 410 N.E.2d 649, we considered a contempt citation against the husband for failure to abide the orders of the trial court. Miller v. Miller (1980), 88 Ill. App. 3d 893, 411 N.E.2d 118, concerned the proper partition of Illinois lands. We now turn our attention to certain property in Florida owned by the parties and the subject matter of this, the latest controversy to reach this court. Only Sidwell v. Sidwell (1981), 102 Ill. App. 3d 56, 429 N.E.2d 539, which was the fifth appeal between those parties, appears to have a longer tenure in the acrimony of dissolution.

The property involved in this case consists of two lots in Collier County, Florida. Copies of the deeds in the record indicate that one of them was conveyed to the respondent in his name alone; the other was conveyed to petitioner and, respondent, the exact nature of the tenancy not being clear from the instrument. In its supplemental order of dissolution distributing the property of the parties, the circuit court of Douglas County found that the Florida lots were marital property and ordered that each party take a one-half interest in each of them. There was no further order directing either party to take any action relating to the lots.

The instant litigation was commenced by petitioner’s filing in the circuit court of Douglas County a petition for rule to show cause and for injunction. In it she recited the facts concerning the Florida property, i.e., that the court had previously decreed that each party owned a one-half interest; she further alleged that respondent had refused to convey to her her one-half interest in the Florida realty; that she had filed a partition suit in Florida; and that respondent was resisting that suit. The prayer for relief was that respondent be held in contempt, presumably for his refusal to execute a deed to the Florida property; that he be directed by injunction to make such a conveyance; and that he be further enjoined from resisting the partition suit in Florida.

The record before us also contains copies of some of the pleadings in the Florida litigation. In her amended Florida complaint petitioner sets up the supplemental judgment entered in the circuit court of Douglas County, Illinois, and asks that it be made the judgment of the Florida court; she then asks that the Florida real estate be partitioned by public sale and the proceeds divided equally. Respondent filed a motion to strike the Florida complaint, alleging that the Illinois court was without jurisdiction to affect title to real estate in Florida and its judgment was void insofar as it attempted to do so; the partition aspect of the complaint was attacked as being insufficient and not stating a cause of action. The record does not disclose the progress, or lack of it, of the Florida action.

The original petition for rule to show cause and for injunction was dismissed on motion of the respondent and an amended petition in essentially the same form was filed, setting up the same allegations. After briefing, the trial court held that there was no basis for contempt since it had not ordered respondent to do anything concerning the Florida property and the request came too late, the supplemental order of dissolution having been entered in March 1979, and the petition having been filed in October 1980. The court further held that it was without jurisdiction to enjoin respondent concerning his actions in Florida. It therefore dismissed with prejudice petitioner’s amended petition, and this appeal followed.

Respondent first argues that the trial court’s order of dismissal may be sustained on the basis that the original petition was dismissed for failure to separate the causes of action, contempt and injunction, and that the amended petition suffered from the same malady. (Brainerd v. First Lake County National Bank (1969), 109 Ill. App. 2d 251, 248 N.E.2d 542.) This is undoubtedly true, and it is a matter of law only. In such a case a reviewing court may sustain the trial court’s ruling on any legal ground justified by the record. Scott v. Association for Childbirth at Home, International (1980), 85 Ill. App. 3d 311, 407 N.E.2d 71, rev’d on other grounds (1981), 88 Ill. 2d 279, 430 N.E .2d 1012.

However, we believe that the appeal is possessed of more significant issues than the technicalities of pleading and decline to dispose of it on that basis.

The common element which threads its way throughout this case is that under the supplemental judgment of March 1979, respondent was not ordered to do anything concerning the Florida property, nor to refrain from doing anything. This presents problems of the delicate balance which exists between in personam and in rem jurisdiction.

Three factors exist in this legal equation: (1) it is not disputed that the trial court had personal jurisdiction over the respondent; (2) the trial court had no jurisdiction over real estate situated in another State; and (3) the supplemental order did not direct respondent to do, or to refrain from doing, anything with regard to the Florida real estate.

As to factor No. 2: it is so well established that little citation of authority is necessary. In Proctor v. Proctor (1905), 215 Ill. 275, 74 N.E. 145, the supreme court stated:

“So much of the decree as sought to vest in defendant in error an interest in real estate in Ohio was extra-territorial and beyond the jurisdiction of the court. That part of the decree was purely a proceeding in rem, and the res having its situs in another State, must be controlled by the laws of the State of its situs. Lynn v. Sentel, 183 Ill. 382; Pennoyer v. Neff, [95 U.S. 714]; Story on Conflict of Laws, sec. 539.” 215 Ill. 275, 277, 74 N.E. 145, 146.

The appellate court has stated that the rule “is self-evident and an established conflicts of law rule.” Chirekos v. Chirekos (1975), 33 Ill. App. 3d 606, 607, 338 N.E.2d 140, 141.

It then follows that the portion of the supplemental order in the instant case which purported to adjudicate title to the Florida real estate has no extraterritorial, effect. Petitioner argues that since the trial court had personal jurisdiction over the respondent, the defect is cured; that the trial court may order him to convey in order to carry out the provisions of the order; and that it is contumacious for him to refuse and to attack the jurisdiction of the Illinois court in the Florida proceeding. We do not so view the matter.

The argument ignores factor No. 3. For whatever reason, the supplemental order stops short of ordering respondent to do, or refrain from doing, anything concerning the Florida property. The respondent is entitled to know with precision exactly what he is required to do, or not do, before he can be restrained or held in contempt. Compare O’Leary v. Allphin (1976), 64 Ill. 2d 500, 356 N.E.2d 551; Illinois School Bus Co. v. South Suburban Safeway Lines, Inc. (1971), 132 Ill. App. 2d 833, 270 N.E.2d 200.

If a court has obtained in personam jurisdiction over a respondent, it is beyond dispute that its jurisdiction continues in order to enforce its orders. (Waggoner v. Waggoner (1979), 78 Ill. 2d 50, 398 N.E.2d 5.) However, there is a distinct difference between enforcement and modification. Brickey v. Brickey (1976), 44 Ill. App. 3d 563, 358 N.E.2d 406.

As regards foreign real estate, a trial court, having personal jurisdiction, may order a conveyance thereof and enforce that order. (Brickey.) It may also impose an equitable lien thereon, since such an interest does not affect the title but is only remedial in nature. (Chirekos.) It may sequester the rents and profits. (In re Marriage of Miller (1980), 88 Ill. App. 3d 370, 410 N.E.2d 649.) No authority exists holding that an Illinois court may adjudicate title to foreign real estate in vacuo and then, because it has personal jurisdiction of the respondent, force a conveyance under the guise of enforcement.

The essence of petitioner’s pleadings is that of modification, i.e., to require a conveyance about which the supplemental order was silent. As such, and the order being more than 30. days old, they do not comply with section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510(a)), and the trial court properly dismissed them.

We turn next to the question of the Florida partition suit. Petitioner argues that respondent should be restrained from defending it and should be held in contempt for collaterally attacking the jurisdiction of the Illinois court. Respondent argues that the supplemental judgment is void insofar as the provision regarding Florida real estate is concerned for lack of subject-matter jurisdiction and thus may be attacked at any time and in any place. (Oakman v. Small (1918), 282 Ill. 360, 118 N.E. 775.) We do not agree that the order is void on its face, since the trial court had personal jurisdiction of the respondent, and if the proper case for modification could be made out, the court could indirectly affect the Florida title by compelling a conveyance. Fall v. Eastin (1909), 215 U.S. 1, 54 L. Ed. 65, 30 S. Ct. 3.

Nonetheless, we perceive no good reason for preventing the respondent from setting up the lack of extraterritorial effect of the order. The supreme court has said that enjoining foreign actions is a matter to be treated with “great delicacy” and a “great restrain.” (James v. Grand Trunk Western R.R. Co. (1958), 14 Ill. 2d 356, 363, 152 N.E.2d 858, 862.) The cases in which the power had been invoked are factually inapposite to the instant one. They all involved a defendant, who, being disgruntled with the results in Elinois, attempted to relitigate the same issues in a sister State. (E.g., Wells v. Wells (1976),, 36 Ill. App. 3d 91, 343 N.E.2d 215.) Here, the petitioner was apparently attempting to register the Elinois judgment in Florida and then use it as a springboard for a partition action. There is no indication that Florida has adopted the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1981, ch. 110, par. 12 — 601 et seq.; Ill. Ann. Stat., ch. 77, par. 88, at 128 (Smith-Hurd Supp. 1981)). Nor is there any farther indication that Florida, like Elinois (Light v. Light (1957), 12 Ill. 2d 502, 147 N.E.2d 34), would recognize a marital order under that Act.

So far as the record here indicates, respondent was simply stating the law in his motion to dismiss: (1) that the Elinois order had no extraterritorial effect, and (2) that a proper partition action had not been stated. Such action is neither contumacious nor subject to restraint.

The dismissal order of the circuit court of Douglas County was correct and it is affirmed.

Affirmed.

GREEN, EJ., and MILLS, J., concur.


author: JUSTICE TRAPP

text:
    ROYAL GLOBE INSURANCE COMPANY, Plaintiff-Appellant, v. JACK TUTT et al., Defendants-Appellees.
    Fourth District
    No. 17232
    Opinion filed July 22, 1982.
    Gary L. Borah, of Heyl, Royster, Voelker & Allen, of Springfield, for appellant.
    Harlan Heller, Ltd., of Mattoon (M. John Hefner, Jr., of counsel), for ap-pellees H. E. Kendall, Violet M. Kendall, and First National Bank of Sullivan.
    Dove & Dove, of Shelbyville, for appellee Jack Tutt.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff, Royal Globe Insurance Company (Globe), appeals from the order of the circuit court filed in behalf of the Kendalls and the First National Bank of Sullivan (Bank), as trustee, which granted a motion to dismiss Globe’s declaratory judgment. The finding of the trial court makes the order appealable. So far as the record shows, the complaint for declaratory judgment continues to pend as to other defendants.

In summary, the complaint alleged that the insureds, Tutt and Anderson, leased real estate from the Kendalls and the Bank, as trustee, for purposes of operating a restaurant, and that Globe issued a comprehensive liability policy on the premises. A fire occurred on April 12, 1975, and on January 2, 1979, lessors filed a suit against the lessees, Tutt and Anderson, alleging negligence which caused the fire. Globe’s complaint alleged that the policy contained a provision that the insurance did not apply to, or cover property owned, occupied, or rented by the insured.

The lessors filed a motion to dismiss, alleging that on February 13, 1979, attorneys retained by Globe appeared and filed an answer and a jury demand in behalf of the lessees, Tutt and Anderson. The attorneys also issued interrogatories directed to the underlying action by lessors for damages. The motion further alleged that on December 21, 1979, Globe, for the first time, asserted a “reservation of rights” upon the policy exclusion.

A copy of Globe’s “reservation” was included as an exhibit in the motion to dismiss. The document also advised of Globe’s obligation to pay the reasonable cost for defense of the underlying suit for damages, and informed Tutt that he could proceed either with the attorneys who had appeared, or choose other attorneys.

After briefs were filed and argument heard, the trial court entered its order that “The Court is of the opinion that prejudice to the insureds would be presumed” and granted the motion to dismiss Globe’s action for declaratory judgment.

The statement of the trial judge of the rationale in dismissing the action for declaratory judgment effects a conclusive presumption of prejudice to the insured. From this conclusion it is argued here that coverage exists because Globe is estopped to raise the defense of non-coverage by reason of the appearance of the attorneys. We find that the rationale of the trial court is not supported by the cases.

In argument, defendants here urge that the trial court’s judgment is to be supported by the opinion in Gibraltar Insurance Co. v. Varkalis (1970), 46 Ill. 2d 481, 263 N.E.2d 823. We turn, however, to the later opinion in Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24. There, the trial court found that there was noncoverage of liability under a policy issued by St. Paul, but that the issue was whether or not St. Paul was estopped to raise that defense when it had undertaken the defense for the insured but thereafter withdrew the answer filed and withdrew as counsel. The trial court determined that there was no coverage, but that St. Paul must defend. On review, the appellate court held that St. Paul was obligated to provide both coverage and the defense.

The supreme court reversed the appellate court upon the issue of coverage, finding that the record failed to demonstrate that the insured was induced to surrender his defense when the attorneys obtained by St. Paul entered appearance for the insured, and that by reason of such fact St. Paul was not estopped to deny coverage. In analyzing the doctrine of estoppel as applicable to the facts in Peppers, the court said:

“It is generally held that an insurer may be estopped from asserting a defense of noncoverage when the insurer undertakes the defense of an action against the insured. However, it is also the general rule that the undertaking must result in some prejudice to the insured.” (64 Ill. 2d 187, 195, 355 N.E.2d 24, 29.)

In further explication, the court continued:

“Whether an insured is prejudiced by an insurer’s conduct in entering an appearance and assuming the defense of an action is a question of fact. Prejudice will not be conclusively presumed from the mere entry of appearance and assumption of the defense. [Citations.] If, however, by the insurer’s assumption of the defense the insured has been induced to surrender his right to control his own defense, he has suffered a prejudice which will support a finding that the insurer is estopped to deny policy coverage.” (Emphasis added.) 64 Ill. 2d 187, 196, 355 N.E.2d 24, 29.

In King v. Aetna Insurance Co. (1961), 31 Ill. App. 2d 462, 176 N.E.2d 689, Aetna provided counsel who entered appearance and answered a complaint against its insured, a tenant, for fire loss brought by the landowners. Aetna subsequently withdrew and refused to defend. In his action for declaratory judgment the insured contended that there had been a waiver of the defense of noncoverage as a matter of law by reason of Aetna’s appearance when it knew, or should have known, that coverage was excluded. The reviewing court determined that prejudice is not necessarily presumed or inferred, but rather that there must be an allegation and proof of detriment, observing that the requirement was particularly so at the pleading stage or before trial.

In Apex Mutual Insurance Co. v. Christner (1968), 99 Ill. App. 2d 153, 240 N.E.2d 742, the court stated that delay in raising an issue of noncoverage is not unreasonable if that delay was not so long as to prevent an insured action which would save loss or damages.

In Old Mutual Casualty Co. v. Clark (1977), 53 Ill. App. 3d 274, 368 N.E.2d 702, the insurer sought declaratory judgment as to whether there was coverage of automobile liability for wrongful death. The insured raised the defenses of waiver and estoppel. The trial court found prejudice to the insured and estoppel to- raise the issue of noncoverage because the insured engaged counsel and believed that the insurer would investigate and defend. The reviewing court reversed the order of the trial court which found an estoppel against the insurer, saying:

“Indeed, an estoppel may arise only in cases where the party taking advantage of the estoppel has relied to his prejudice or detriment on some conduct of the other party. [Citations.] Mere delay in disclaiming liability is not enough, but where prejudice to the Clarks resulting from unreasonable delay in notifying the Clarks of the disclaimer is demonstrated by adequate proof, plaintiff is estopped to assert that its policy does not cover the accident. [Citation.] Defendants, the parties claiming estoppel, had the burden of establishing estoppel by dear, concise, and unequivocal evidence. [Citations.] Furthermore, defendants had the burden of establishing prejudicial reliance, an element of es-toppel, by clear, concise, and unequivocal evidence. The burden was never met. We hold that an estoppel may not be predicated on the mere fact that the Clarks ‘were lulled into a belief that plaintiff would conduct all investigations and ‘defend all the litigation, pending and threatened.’ The trial court held that the fact that the ‘Clarks were obliged to engage counsel’ amounted to prejudice. We do not agree, since there was no proof of injury or hurt to the Clarks arising from their engagement of counsel.” (Emphasis added.) 53 Ill. App. 3d 274, 279-80, 368 N.E.2d 702, 705-06.

Here, the trial court applied a conclusive presumption of prejudice to the insured upon the allegations of a motion to dismiss the complaint for declaratory judgment that counsel appeared, answered, and filed a jury demand on February 13, 1979, and in March served interrogatories upon the defendant, but thereafter notified the insured of the reservation of rights on December 21, 1979. There is no allegation of actual prejudice or detriment alleged in the motion, or otherwise in this record. The motion to dismiss alleges, and the lessors here argue, that as a matter of law the issue of noncoverage has been waived. We can only conclude that the argument made here, and the ruling of the trial court, is contrary to the law as stated in the several cases discussed, and that prejudice or detriment to the insured is a matter of fact (Peppers) must be alleged and proven by clear, concise, and unequivocal evidénce. Old Mutual Casualty Co. v. Clark; King v. Aetna Insurance Co.

While there is no report of proceedings as to matters argued in the trial court, the written briefs tendered to the trial judge disclose that the issue of detriment or prejudice to the insured was framed by Globe at the hearing upon the motion. The argument of defendants that the issue was not adequately presented below is not supported by the record.

The judgment of the trial court is reversed, and the cause is remanded for further hearings not inconsistent with the views expressed herein.

Reversed and remanded.

WEBBER and LONDRIGAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH D. PENERMON, Defendant-Appellant.
    Fourth District
    No. 17669
    Opinion filed July 22, 1982.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Michael W. Hogan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was charged in the circuit court of Macon County with four offenses: (1) aggravated assault in violation of section 12 — 2(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12— 2(a)(1)); (2) battery in violation of section 12 — 3(a)(1) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3(a)(1)); (3) disorderly conduct in violation of section 26 — 1(a)(1) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 26-l(a)(1)); and (4) failure to possess a valid firearm owners identification card in violation of section 2(a) of “An Act relating to the acquisition, possession, and transfer of firearms ***” (Ill. Rev. Stat. 1981, ch. 38, par. 83 — 2(a)). He entered a plea of guilty to the offense of failure to possess and at trial was found not guilty of disorderly conduct. These matters are not involved in this appeal. Following a bench trial he was found guilty of aggravated assault and battery and was sentenced to 364 days’ imprisonment.

On appeal defendant alleges two errors which are to a large extent interrelated: (1) summary denial of counsel by the trial court, and (2) failure of the trial court to obtain a knowing and intelligent waiver of counsel. The evidence is not disputed; the transcript of it has been submitted and it was prima facie sufficient to sustain the finding and judgment of the trial court. Since we find that the alleged errors deprived defendant of a fair trial, the case will be remanded for a new trial.

The record indicates that an admonition of rights occurred en masse to a group of accused persons. It included the possible penalties of each class of misdemeanor and the right to counsel. Following the general admonition, defendant was called forward to the bench and entered a plea of not guilty to all charges except the failure to possess. These events occurred on August 21, 1981. We have heretofore approved of such a general admonition as a useful tool in the expedition of judicial business. People v. Henderson (1982), 104 Ill. App. 3d 62, 432 N.E.2d 660.

The judge handling the matters on this occasion then “transferred” the case to another judge and fixed a date of September 17, 1981, for that appearance for the purpose of fixing a trial date. On September 17 defendant appeared as ordered and the court set October 8, 1981, as the date for trial by the court. Defendant orally moved for the appointment of the public defender and tendered an affidavit of assets and liabilities. The record contains no colloquy between the defendant and the court and does not indicate that the court examined the affidavit. We have only the terse statement by the court, “Motion for the appointment of public defender denied.”

On October 8, 1981, defendant again appeared as ordered and the record contains the following:.

“THE COURT: 81-CM-1015. People vs. Joseph D. Penermon.
Defendant present. People present by James Majors. Cause called for Court Trial as allotted. Defendant announces not ready and moves to continue cause.
I am going to give you time to obtain your attorney, Mr. Penermon. I want to advise you, you have previously been advised the Public Defender would not be appointed to represent you. You have adequate assets to take care of it yourself. That was done on September 17th. You indicated to me this morning you have not done anything to obtain an attorney yet. I am going to reallot this for Court Trial October the 29th at 1:30 p.m., in this courtroom. You are to be ready for trial at that time. I am advising you that you should have your attorney at that time. If you do not have your attorney present at that time the Court is going to deem that as a waiver of right to counsel. You have any questions?
DEFENDANT: No.
THE COURT: You understand what I am saying.
DEFENDANT: Uh-huh.
THE COURT: If you show up at that time without an attorney we are going to proceed to trial because I am going to then assume that you do not want an attorney.
DEFENDANT: Uh-huh.
THE COURT: Do you have any questions?
DEFENDANT: No.
THE COURT: Defendant admonished to have counsel present for Court Trial on October 29, 1981, 1:30 p.m., Courtroom 7. Failure to do so will be deemed a waiver of right to counsel. Cause so continued.”

The bench trial commenced on October 29, 1981. Prior to trial, the court initiated the following colloquy with the defendant:

“THE COURT: You don’t have an attorney here, do you, Mr. Penermon?
MR. PENERMON: No, I don’t.
THE COURT: Pardon.
MR. PENERMON: No.
THE COURT: You were previously admonished that failure to appear today without an attorney would be deemed a waiver of that right.
MR. PENERMON: Right.
THE COURT: So we are going to proceed on your case.”

The case so proceeded with the defendant acting pro se. He did not testify and presented no evidence. He was found guilty and later sentenced as heretofore described.

We hold that defendant’s fundamental constitutional right to counsel in this misdemeanor case has been so seriously infringed as to require a new trial. Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792; Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006.

The court’s abrupt order of denial on September 17 of the services of the public defender indicates that no serious inquiry had been made of defendant’s financial status. The determination as to the defendant’s indigency should be on a basis of as complete a financial picture as possible. It is not necessary that the defendant be totally devoid of means; rather, it is sufficient if the defendant lacks financial resources on a practical basis to retain counsel. (People v. Castile (1979), 71 Ill. App. 3d 728, 390 N.E.2d 426.) The method of arriving at a determination of a defendant’s ability to pay must include a balancing of assets against liabilities and also the defendant’s income. People v. Wright (1976), 41 Ill. App. 3d 364, 353 N.E.2d 711.

It is evident from the presentence report filed in this case that the defendant was a person of limited education, a fact which should have been apparent to the trial court, or at least should have been inquired into in connection with the execution of the affidavit of assets and liabilities. It contains some remarkable inconsistencies which should have alerted the trial court to make further inquiry. It shows $125 per month income “from rents, royalties, bonds, securities or interest,” the quoted portion being printed on the form; yet it discloses no assets from which such income might be derived. In fact, total assets are disclosed to be $313 and debts of $200, leaving a net worth of $113. The $125 rent item is an obvious misapprehension of fact. By referring again to the presentence report, we may ascertain that this was the rent paid by defendant for his apartment. This could have been ascertained by the trial court on October 8 by only the briefest inquiry, but it was not done. The affidavit reveals a monthly income of $750 from wages, but there is no indication whether this is a gross or net figure.

It may well be that detailed inquiry would have revealed ineligibility for the public defender. It is the failure to make even a pro forma inquiry which has fatally flawed the trial court’s procedure. The cases cited by the People (People v. Maretti (1978), 61 Ill. App. 3d 762, 378 N.E.2d 342; People v. Losacano (1975), 29 Ill. App. 3d 103, 329 N.E.2d 835) are factually inapposite. Each of them demonstrated substantial assets from which private counsel might be paid.

We observe a certain anomaly in the fact that on appeal the trial court found the defendant to be indigent and appointed the State Appellate Defender, even though no change in circumstance appears of record between the date of trial and the date of sentencing. Certainly anything which defendant had accumulated in that period, if at all, was not spent on trial counsel.

•The People argue that defendant has waived his right to counsel by his conduct. Waiver of counsel is governed by Supreme Court Rule 401(a) (87 Ill. 2d R. 401(a)), and we know of no exceptions to its mandate. It is plain from this record that there was no attempt by the trial court to comply with Rule 401(a). The question then becomes: can there be compliance by inference? We think not.

The majority of the reported cases are ones in which the defendant himself insisted on proceeding pro se. Examples of this type are People v. Derra (1981), 92 Ill. App. 3d 1106, 416 N.E.2d 688, People v. Roberts (1978), 56 Ill. App. 3d 126, 371 N.E.2d 1284, and People v. Bolden (1978), 59 Ill. App. 3d 32, 374 N.E.2d 1307. In all of these a strict compliance with the requirements of Rule 401(a) has been ordered.

A second type of case is one in which the defendant has refused the- services of the public defender and demanded appointment of private counsel. This is exemplified in People v. Brown (1980), 80 Ill. App. 3d 616, 399 N.E.2d 1374. Even though the defendant’s conduct in Brown was exasperating and provocative almost beyond endurance, the appellate court held that Rule 401(a) must be complied with.

As will be observed from our brief statement of facts in the instant case, it falls somewhere between the two foregoing types. Defendant did not elect to proceed pro se; on the contrary, he asked for the services of the public defender. Nor did he ask for the appointment of private counsel. His only transgression was his financial inability to obey the trial court’s peremptory order to retain counsel. We are unable to perceive that such conduct is a waiver by inference, but even if it were, under Brown, as adopted in Derra, the specific admonitions of Rule 401(a) are required. Furthermore, this case is not one in which the defendant sought to thwart the administration of justice by using selection of counsel as a delaying tactic. (People v. Solomon (1962), 24 Ill. 2d 586, 182 N.E.2d 736.) His dilemma was forced upon him by the court.

The People argue that the general admonitions of September 17 were sufficient under Rule 401(a). We do not agree. Those admonitions were principally directed to proceedings under Rule 402(a). In addition, the court made it plain that no waiver was being considered on September 17. It stated in part:

“*** y0U are charged with a misdemeanor you may have a lawyer. You’re not required to have a lawyer. If you want a lawyer and you are charged with a misdemeanor and you can’t afford a lawyer all you have to do is ask me for one this morning. I’ll give you a form to complete and then tell you to come back and see Judge Hendrian on another day and he will make the decision.”

A trial court may not erroneously order a defendant to obtain private counsel and then upon his failure to do so, infer a waiver of Rule 401(a) without any admonition. The admonition is required upon any waiver, voluntary or otherwise. In the instant case the trial court erred in failing to make specific inquiry as to defendant’s financial status and further erred in proceeding upon a supposed waiver of counsel.

The judgment and sentence of the circuit court of Macon County are reversed and the cause is remanded for a new trial.

Reversed and remanded.

LONDRIGAN and TRAPP, JJ., concur.


author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICKEY D. AGNEW, Defendant-Appellant.
    Fourth District
    No. 17621
    Opinion filed July 26, 1982.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Nancy Owen, State’s Attorney, of Charleston (Robert J. Biderman and Mona C. Mack, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Substitution of judge.

Motion must be in writing.

We affirm.

Agnew and three other persons were charged with armed robbery, but Agnew’s case was severed from the others. At his preliminary hearing before Judge Komada, counsel for defendant orally stated an objection to Judge Komada hearing the matter because the judge had prosecuted the defendant on a similar but unrelated charge while State’s Attorney. After some discussion, the motion was denied as untimely. The hearing proceeded, probable cause was found, and Agnew was bound over for trial.

Following a jury trial — over which Judge Komada presided— Agnew was found guilty and sentenced to 8 years’ imprisonment. His appeal raises the sole issue of the propriety of the denial of his motion for substitution.

First, we must address the question of whether defendant ever made a motion for substitution of judges under section 114 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 5(a)). The record leaves some doubt as to whether counsel was making a motion or merely bringing some facts to the court’s attention. The trial judge obviously felt that such motion was made and ruled on it. We are not in a position to second guess and will accept his judgment. The questions we must now address are whether the motion was made too early and whether it was in proper form.

TIMELINESS

The case most closely on point is People v. Bach (1979), 74 Ill. App. 3d 893, 393 N.E.2d 563. There, the defendant orally moved for substitution of judges at arraignment. The case was thereafter assigned to trial before one of the judges mentioned. The court assumed (without so stating) that the defendant could have obtained substitution at arraignment, but held that the oral motion did not divest the judge of the power to hear the case and the fact that the motion was never reduced to writing or even renewed at any of defendant’s numerous subsequent appearances before the judge constituted waiver.

People v. Samples (1982), 107 Ill. App. 3d 523, also supports the conclusion that a defendant may obtain a section 114 — 5(a) substitution before a case is set for trial, or rather before the defendant knows which judge will preside at his trial. The rationale set forth in Samples is that since a defendant may exercise his right to automatic substitution only once, it does no harm to allow him to exercise it early, especially since section 114 — 5 is to be liberally construed to grant, rather than to deny substitution. (See People v. Howell (1974), 16 Ill. App. 3d 989, 307 N.E.2d 172, aff’d (1975), 60 Ill. 2d 117, 324 N.E.2d 403.) Samples involved the question of whether the fact that .all criminal cases in a particular county are tried before one judge gave a defendant notice of the trial assignment before that judge as soon as his case was set for trial.

Although neither Bach nor Samples are directly on point, we find them persuasive and adopt the position that section 114 — 5(a) motions may be made early, but only once.

Our ruling also eliminates a potentially anomalous situation. The automatic right to substitution of judge afforded defendants by section 114 — 5(a) is terminated when that judge makes a ruling of substance in the case. What exactly is meant by a “ruling of substance” is not clear. There is some indication in People v. Chambers (1956), 9 Ill. 2d 83, 136 N.E.2d 812, that unless the court reviews defendant’s case and assesses the credibility of his evidence, a ruling is not one of substance. Since ordinarily only the State presents evidence at a preliminary hearing, the fact that a judge found probable cause would not cut off defendant’s right to automatic substitution as to that judge.

On the other hand, some cases can be read to say that any ruling on the merits (including motions to dismiss, motions to suppress, and pretrial sanity hearings) — whether or not jeopardy attaches — are rulings of substance cutting off the right to automatic substitution. (See People v. Speck (1968), 41 Ill. 2d 177, 242 N.E.2d 208.) Thus, at least in some cases, a probable cause finding at a preliminary hearing could be a ruling of substance.

If we were to hold defendant’s motion to be premature, and if a probable cause finding at a preliminary hearing is a ruling of substance, then a defendant’s section 114 — 5(a) right could be cut off before it ever came to fruition — simply by assigning the case to trial before the judge who sat at the preliminary hearing. We do not hold that a probable cause finding is a ruling of substance — it certainly is not per se. We merely note this possibility and utilize the liberal construction rule of Howell to protect against it.

FORM

The “liberal construction rule” also governs our resolution of the second question as to form. Case law is in conflict over whether courts should allow substitution motions even though not in the proper form. Bach refused to do so. People v. Kadlec (1974), 21 Ill. App. 3d 289, 313 N.E.2d 522, although it dealt with section 114 — 5(c), said procedural requirements may be ignored. The “liberal construction rule” would indicate that the latter approach is preferred, but People v. Van Pelt (1974), 18 Ill. App. 3d 1087, 311 N.E.2d 184-also dealing with section 114 — 5(c)—says the liberal construction rule does not authorize ignoring statutory requirements.

We find Bach and Van Pelt persuasive and hold that such motion must be in writing. Dispensing with all the statutory requirements will lead to the ultimate situation where a defendant must be asked at arraignment which judge he does not want to hear his case. Since this is clearly beyond the intendment of the statute, we hold that defendant’s motion was properly denied, even though the trial judge stated the wrong reason for his decision. Cf. People v. York (1963), 29 Ill. 2d 68, 193 N.E.2d 773.

The defendant’s argument that the State has waived any objection to the form of the motion is without force. The trial court denied defendant’s motion. Defendant cannot claim that the State waived error when the State received a favorable ruling. On the contrary, under the rationale of Bach, defendant has waived any error because he never renewed his single oral motion.

Affirmed.

GREEN, R J., and WEBBER, J., concur.


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE ex rel. TYRONE C. FAHNER, Attorney General, Plaintiff-Appellee, v. RAYMOND HEDRICH, Indiv. and d/b/a Oak Grove Mobile Home Village, Defendant-Appellant.
    Second District
    No. 81 — 454
    Opinion filed July 14, 1982.

      Richard D. Shearer, of Shearer, Blood, Agrella, Boose and Balog, of St. Charles, and Ronald L. Barnard and Gary B. Shulman, both of Barnard and Associates, Ltd., of Chicago, for appellant.
    Tyrone C. Fahner, Attorney General, of Chicago (William C. Shapiro, Assistant Attorney General, of counsel), for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The defendant, Raymond Hedrich, appeals from a verdict finding him guilty of violating provisions of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 1211/2, par. 261 et seq.) and the Mobile Home Landlord and Tenant Act (Ill. Rev. Stat. 1979, ch. 80, par. 201 et seq.). As a result of these violations, the court imposed an injunction and required the defendant to pay restitution, a fine and attorney fees.

For approximately 30 years, Hedrich has owned and operated the Oak Grove Mobile Home Village (Oak Grove). Through Oak Grove, the defendant rents parking spaces for owners of mobile homes. He also sells new and used mobile homes, as well as, parts and accessories for mobile homes.

Before January 1, 1980, the defendant did not use written leases when renting out a lot. The lots were rented as month-to-month tenancies. Prior to January 1, 1980, when several tenants of Oak Grove wanted to sell their mobile homes, the defendant informed them that if the mobile home was to remain on the Oak Grove lot after the sale, the tenant-seller would be required to pay a fee of approximately $1,500 to the defendant. The tenant-seller was not required to pay the fee if he removed the mobile home from the lot. None of the tenants were notified of this charge until after they had located their mobile home on the lot and were ready to sell the mobile home. The evidence indicated that there was a shortage of mobile home lots in the area and that it would cost hundreds of dollars to relocate a mobile home.

At trial, it was shown that prior to January 1, 1980, 23 tenants-sellers were required to pay $1,500 each to allow their mobile homes to remain on the lot after a sale. One tenant paid $500, and another paid $3,000. The evidence also indicates that the defendant performed little or no services in connection with the transfer.

Because of these fees, some of the Oak Grove tenant-sellers filed consumer complaints against the defendant. As a result of the consumer complaints filed with the Consumer Protection Division of the Elinois Attorney General’s Office, a subpoena issued against the defendant in November of 1979. The defendant was unable to resolve the outstanding consumer complaints. On December 13, 1979, the Attorney General’s Office filed a complaint alleging that the defendant had violated the Elinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 1211/2, par. 261 et seq.). The complaint was later amended to add a second count which alleged violations of the Mobile Home Landlord and Tenant Act (Ill. Rev. Stat. 1979, ch. 80, par. 201 et seq.). The Attorney General’s Office also filed a petition for a temporary restraining order. The trial court granted the order and restrained defendant from imposing a fee on the sale of a mobile home unless the fee was in compliance with the provisions of the Mobile Home Landlord and Tenant Act. This order became a preliminary injunction.

On January 20, 1981, after several contempt proceedings, a trial on the complaint began. On February 10, 1981, after hearing the evidence, the trial court found that the defendant had violated section 2 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 1211/2, par. 262) and sections 6, 9 and 24 of the Mobile Home Landlord and Tenant Act (Ill. Rev. Stat. 1979, ch. 80, pars. 206, 209, 224). As a result of these violations, the defendant was permanently enjoined from collecting a fee upon the sale of a tenant’s mobile home, unless the fee was an amomit directly related to services performed by the defendant, and the fee was disclosed to the tenant in a lease or by agreement prior to the sale. The trial court also ordered the defendant to pay $38,000 in restitution to the former tenants who had paid the fee. The defendant also received a $200 fine and was ordered to pay attorney fees.

Initially, the defendant contends that the trial court erred in that the Consumer Fraud and Deceptive Business Practices Act (Act) is not applicable to transactions between a mobile home park landlord and tenant. We note, however, that the applicability of the Act was never clearly raised before the trial court; therefore, it may be considered waived. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147.) However, because the issue is one of public importance concerning a matter of statutory interpretation and because all of the facts necessary for a determination of the issue are before the court, this court of review may rule on the issue. Cronin v. Lindberg (1976), 66 Ill. 2d 47, 61.

Section 2 of the Act provides that the use of any one of a variety of deceptive or unfair practices in the conduct of any “trade or commerce” is unlawful. (Ill. Rev. Stat. 1979, ch. 1211/2, par. 262.) The defendant contends that the trial court erred in finding that the business of leasing lots and providing services for mobile homes is a “ ‘trade’ or ‘commerce’ ” as defined in section 1(f) of the Act. (Ill. Rev. Stat. 1979, ch. 1211/2, par. 261(f).) Under section 1(f), the phrase “trade or commerce” means the “advertising, offering for sale, sale or distribution of any services and any property, tangible or intangible, real, personal or mixed and any other article, commodity or thing of value wherever situated ***.” (Ill. Rev. Stat. 1979, ch. 1211/2, par. 261(f).) In Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 284, the Illinois Supreme Court held that the broad language of this definition “evidences an intent that the Act have correspondingly broad applicability.” Additionally, section 11a (Ill. Rev. Stat. 1979, ch. 1211/2, par. 271a) of the Act mandates a liberal construction of the Act to effect its purposes. Under a liberal construction of the broad language of section 1(f), the defendant’s leasing of lots and providing utilities to his tenants are a “distribution of services” and, therefore, a “trade or commerce” as defined by the Act.

In Commonwealth v. DeCotis (1974), 366 Mass. 234, 316 N.E.2d 748, the Massachusetts Supreme Court was faced with the exact same question. In DeCotis the defendant, an owner of a mobile home park, was charged with committing an unfair and deceptive trade practice by charging a resale fee similar to the fee charged in the case at bar. Interpreting a definition of “trade or commerce” substantially identical to the definition in the Illinois statutes, the court held that “[c]learly the leasing of lots for. mobile homes is a ‘trade’ or ‘commerce.’ ” 366 Mass. 234, 239, 316 N.E.2d 748, 752.

The defendant cites Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, for the proposition that the Act is inapplicable because the former tenants are not “consumers” as defined in section 1(e) (Ill. Rev. Stat. 1979, ch. 1211/2, par. 261(e)). The Steinberg court held that because Steinberg was only an applicant to the school and not a purchaser of its educational services, he was not a consumer. (See Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 285.) We note, however, that in Steinberg, the issue was whether a rejected applicant was a “consumer” with standing to bring a cause of action. Thus, it appears that while the definition of consumer as set out in section 1(e) may be pertinent for determining whether a plaintiff has standing, it is not a question of importance in-a case, like the present case, which has been brought by the Attorney General’s Office. Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 285; see also Beard v. Gress (1980), 90 Ill. App. 3d 622.

Furthermore, the tenants who were required to pay the $1,500 service fee are consumers under the Act. Section 1(e) of the Act defines a consumer as “any person who purchases or contracts for the purchase of merchandise not for resale in the ordinary course of his trade or business but for his use or that of a member of his household.” (Ill. Rev. Stat. 1979, ch. 1211/2, par. 261(e).) Section 1(b) defines “merchandise” to include “any objects, ware, goods, commodities, intangibles, real estate situated outside of the State of Illinois, or services; ***.” (Ill. Rev. Stat. 1979, ch. 1211/2, par. 261(b).) From the evidence at trial it is clear that under the leasing agreement, the tenants contracted for various services to be supplied by the defendant, i.e., maintaining the utilities and road within the complex, providing snow and garbage removal, and allowing for the use of the lot. Therefore, the tenant contracted for the purchase of “merchandise” as defined in section 1(b) and, under section 1(e), is a “consumer.” (See Love v. Pressley (1977), 34 N.C.App. 503, 239 S.E.2d 574; Common wealth v. Monumental Properties, Inc. (1974), 459 Pa. 450, 329 A.2d 812.) We, therefore, conclude that the trial court did not érr in determining that the consumer fraud statute is applicable in the present case.

The defendant next contends that the charging of the transfer fee was not an unfair or deceptive practice under section 2 of the Act. Section 2 states that when determining whether a practice violates this section of the Act, consideration is to be given to the interpretations of the Federal Trade Commission and the Federal courts relating to section 5(a) of the Federal Trade Commission Act (15 U.S.C. sec. 45(a)(1) (1976)), which provides in pertinent part:

“Unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.” 15 U.S.C. sec. 45(a)(1) (1976).

In Federal Trade Commission v. Sperry & Hutchinson Co. (1972), 405 U.S. 233, 244-45 n.5, 31 L. Ed. 2d 170, 179 n.5, 92 S. Ct. 898, 905 n.5, citing 29 Fed. Reg. 8355 (1964), the court set out the standards employed by the FTC in determining whether a practice was deceptive or unfair:

“ ‘(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law or otherwise— whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).’ ”

In the present case, the facts concerning the allegedly illegal practices are undisputed. Prior to locating their mobile homes on one of the defendant’s lots, new tenants were not informed of the possibility of an assignment fee upon resale of their mobile homes. The owners incurred considerable set-up expenses when placing their mobile homes on the leased lots. Relocating a mobile home is costly. Because of these expenses and an apparent shortage of lots, an established mobile home located in a good mobile home park was easier to sell and would obtain a higher price — a price that would allow the seller to recover his initial cost of locating the home in the park. When an Oak Grove tenant told the defendant that he desired to sell his mobile home, the defendant informed the tenant that after the home was sold, the tenant could either remove the mobile home from the park or pay the defendant a $1,500 “sales commission.” The defendant performed little or no services in connection with the sales.

Under these facts, the first criterion of Sperry & Hutchinson has been met. Here, the defendant has made a practice of charging an unconscionably disproportionate price for little or no services. This practice “offends public policy as it has been established by statutes, the common law, or otherwise *** it is within at least the penumbra of some common-law statutory, or other established concept of unfairness.” Moreover, the defendant was able to collect this unconscionably large fee for little or no services merely because the tenants “were in a position in which they had no reasonable alternative but to pay and to agree to pay.” (Commonwealth v. DeCotis (1974), 366 Mass. 234, 243, 316 N.E.2d 748, 755.) This practice can be characterized as “oppressive.” Thus, the second criterion of Sperry & Hutchinson has been met.

Finally, the tenants as consumers are injured by the defendant’s charging of a $1,500 fee, but providing virtually no services for the fee. Under the three standards of Sperry & Hutchinson, the trial court did not err in determining that the resale fee was an unfair or deceptive practice under the Consumer Fraud Act. Commonwealth v. DeCotis (1974), 366 Mass. 234, 316 N.E.2d 748.

The defendant contends that he had two valid business reasons for the fee: (1) the seller could obtain a higher price for the mobile home because the home was located on Hedrich’s lot and (2) the sale of the tenant’s used mobile home would infringe upon the business of mobile home sales that Hedrich conducted at the Oak Grove Park. He-drich seems to argue that by allowing his tenants to sell their mobile homes situated on a lot, his business of mobile home sales is forced to compete on an equal footing with the tenants of the park. Apparently, the defendant believes that the $1,500 fee is a valid charge to compensate him for the loss of his competitive edge over his tenants.

Even if this court accepts the defendant’s arguments that such an assignment fee, even one that is highly disproportionate to the services rendered, is a valid fee, the defendant’s .practice is still a deceptive, illegal practice inasmuch as he has failed to inform prospective tenants of the fee until after a tenant had expended a considerable sum of money to move a mobile home onto the defendant’s park. Had the prospective tenant been aware of defendant’s intention to impose such a “sales commission,” the tenant may have chosen to locate in another park or not to purchase or reside in a mobile home at all. Because once a mobile home is located on a lot, a tenant who desires to sell the mobile home has no reasonable alternative but to pay the fee, failure to disclose such a large fee is deceptive, oppressive, and potentially injurious to the consumer. Under Sperry & Hutchinson, the failure to disclose the existence and the terms of the fee is a clear violation of the Illinois consumer fraud provisions.

The defendant next contends that finding this fee to be illegal infringes upon his right to control and freely alienate his real property. We note, however, that requiring the defendant to disclose the existence of and the terms of a resale fee, including the arbitrary manner in which the defendant intends to administer that fee, before a tenant makes the substantial investment of locating a mobile home in the park does not infringe upon these rights.

The defendant’s next claim of error arises from the trial court’s refusal to allow a line of questioning to be asked of a witness by the name of Virginia Schwenk.

During the trial, Ms. Schwenk testified that the defendant charged her a $1,500 “sales commission” at the time she sold a mobile home located on defendant’s lot. On cross-examination, it was established that she received $9,000 for the mobile home. Defense counsel then inquired if she had “investigated similar prices for mobile homes.” The plaintiff objected to the question on the ground of relevancy. The objection was sustained. Although the defense attorney spoke to the objection, he did not make a formal offer of proof.

In Hession v. Liberty Asphalt Products, Inc. (1968), 93 Ill. App. 2d 65, 71, the court noted that “the requisite formality of an offer of proof will depend upon the circumstances of the particular case. Where it is obvious that the witness is competent to testify to a fact, and it is obvious what his testimony will be if he is permitted to give it, a brief statement by counsel may suffice. ***[H]owever, where it is by no means clear what the witness will say, or what his basis will be for saying it, the offer of proof must be considerably more detailed and specific ***.” (See also Snedden v. Lavenka (1981), 92 Ill. App. 3d 979, 986.) Here, the offer of proof consisted of two comments which failed to indicate what the witness was expected to say or the basis for the testimony. An offer of proof serves no useful purpose at all if it does not demonstrate, both to the trial and to the appellate courts, the admissibility of the testimony which was foreclosed by the sustained objection. (Snedden v. Lavenka (1981), 92 Ill. App. 3d 979, 986; Miller v. Chicago Transit Authority (1966), 78 Ill. App. 2d 375, 383.) Thus, with regard to the testimony sought to be elicited from Virginia Schwenk, the defendant failed to make an adequate offer of proof at the trial level, and the trial court’s sustaining of the plaintiff’s objection is affirmed.

The defendant further contends that the trial court erred in awarding attorney fees. On February 2, 1981, Charles H. Atwell, Jr., attorney for the Attorney General’s Office, filed an affidavit with the court. In this affidavit, Atwell averred that the sum of $14,693.75 was owed to him for legal services he performed in the prosecution of the case. Atwell also stated that $7,712.50 of this amount was incurred as a result of the defendant’s failure to comply with court orders. Attached to the affidavit was a detailed statement of Atwell’s work on the case.

After closing arguments, the trial court inquired as to whether it had the authority to award attorney fees. During this time, the defendant neither commented on nor objected to the court’s authority to award attorney fees. Moreover, he did not challenge the amount of the fees as set out in Atwell’s affidavit. Only in his motion to vacate did the defendant raise any objection to the award of attorney fees. In this motion, the sole issue raised was whether the fees were “grossly unfair and unjustly punitive.” The sole issue argued on appeal is whether the trial court had authority to award attorney fees in a case brought by the Attorney General’s Office. Because this issue was never raised before the trial court, the defendant cannot raise it for the first time on review. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147.

The defendant’s final contention is that the Mobile Home Landlord and Tenant Act is unconstitutional. Specifically, the defendant challenges the constitutionality of sections 6, 8, 9, 12, 14 and 15 of the statute. (Ill. Rev. Stat. 1979, ch. 80, pars. 206, 208, 209, 212, 214 and 215.) Generally, a court of review will decide the constitutionality of only those provisions of a statute which are sought to be enforced (Goldblatt v. Town of Hempstead (1962), 369 U.S. 590, 597, 8 L. Ed. 2d 130, 136, 82 S. Ct. 987, 991), for it is well settled that constitutional questions will not be decided unnecessarily (Haughton v. Haughton (1979), 76 Ill. 2d 439, 448). In other words, to have standing to challenge the validity of a provision one must have sustained or be in the immediate danger of sustaining a direct injury as a result of the enforcement of the provision. Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 451.

Here, because the State has sought to enforce only sections 6, 9 and 24 of the Mobile Home Landlord, and Tenant Act, the defendant has standing to challenge the validity of only these three sections. Because the defendant does not challenge the validity of section 24, the only sections which the defendant has effectively challenged are sections 6 and 9.

Initially, the defendant contends that section 6 is unconstitutional in that it is special legislation in violation of article IV, section 13 of the Illinois Constitution, which provides:

“The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether general law is or can be made applicable shall be a matter for judicial determination.” Ill. Const. 1970, art. IV, sec. 13.

Special legislation is that which “confers a special benefit or exclusive privilege on a person or a group of persons to the exclusion of others similarly situated.” (Illinois Polygraph Society v. Pellicano (1980), 83 Ill. 2d 130, 137; see also Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 109-10.) If, however, there is a reasonable basis for the classification, and if it bears a reasonable and proper relation to the purposes of the act and the evil it seeks to remedy, it has not violated the constitutional proscription of special or local laws. (Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 111.) Only if a classification is unreasonable and arbitrary will a court declare the statute invalid. Thus, the special legislation section of the Illinois Constitution allows differentiations between similarly situated persons if the classification is not unreasonable in that it preferentially and arbitrarily includes a class to the exclusion of all others. Illinois Polygraph Society v. Pellicano (1980), 83 Ill. 2d 130, 138.

The defendant contends that section 6 is special legislation in that it applies only to mobile home landlords and not to landlords in general. While the defendant notes that this section “specially and negatively” affects mobile home landlords, he fails to indicate how this special effect is unreasonable, preferential or arbitrary. The plaintiff, on the other hand, contends that such a classification is reasonable. In Rezler v. Village of Riverside (1963), 28 Ill. 2d 142, 148, the court recognized that there was a necessity for special treatment of mobile home parks. From the evidence introduced at trial, it is apparent that the traditional, residential landlord-tenant relationship is different from the landlord-tenant relationship involved in the leasing of a mobile home lot. Generally, the residential landlord has a substantial investment in the improvements which he is leasing to his tenants, whereas, the mobile home landlord is basically leasing only a lot with utility hook-ups to his tenant. Unlike the traditional, residential tenant, a mobile home tenant moves his own dwelling onto the landlord’s lot, and the dwelling becomes affixed to the lot. Because the tenant moves his dwelling onto the landlord’s lot, the landlord-tenant relationship is rarely intended to be one of short duration.

Section 6, which the defendant asserts as unconstitutional special legislation, merely requires the mobile home landlord to offer prospective tenants a written lease. Because the mobile home landlord is primarily leasing the land and not improvements on the land and because of the relatively substantial cost incurred by tenants which are moving and affixing a mobile home onto a lot, requiring mobile home landlords to offer written leases is not arbitrary or unreasonable. Rather, it is “based on a rational difference of condition or situation existing in the persons or objects upon which the classification rests.” (Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305, 311.) Section 6 of the Mobile Home Landlord and Tenant Act is not special legislation which violates the Illinois Constitution.

The defendant further contends that sections 6 and 9 are unconstitutional in that they violate the equal protection clauses of the United States and the Illinois constitutions. As noted earlier, section 6 requires mobile landlords to offer written leases. Section 9 requires that the written lease clearly set forth the rental terms and specifically itemize all other charges. It is argued that these provisions of the Mobile Home Landlord and Tenant Act deny equal protection of the law “by segregating a certain class of property owners, i.e., person owning land for use by mobile home owners.”

The first test in assessing an equal protection claim is to determine if the statute in question operates to the disadvantage of a suspect class or infringes upon a fundamental right. (Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 119; see also San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 17, 36 L. Ed. 2d 16, 33, 93 S. Ct. 1278, 1288.) While the defendant does not assert that mobile home park owners are a suspect class, he does argue that the statute infringes on his fundamental right to use his property as he chooses. The statutory requirement of a written lease with a full disclosure of all terms does not infringe upon that right.

If the statute does not involve a suspect class and does not infringe on a fundamental right, “the legislation simply must bear a rational relationship to a legitimate governmental interest.” Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 120.

In Illinois Housing Development Authority v. Van Meter, the court discussed this rational-basis test:

“Under traditional concepts of equal protection, i.e., when a rational-basis test is used, a legislative classification is presumed valid. [Citations.] The burden of rebutting the presumptive validity of the classification rests upon the party challenging its constitutionality. [Citation.] Finally, a statutory classification will not be declared unconstitutional ‘if any state of facts reasonably may be conceived to justify it.’ [Citations.].” (82 Ill. 2d 116, 122, citing McGowan v. Maryland (1961), 366 U.S. 420, 426, 6 L. Ed. 2d 393, 399, 81 S. Ct. 1101,1105.)

Thus, the inquiry shifts to an analysis of a legislative purpose and a subsequent determination of whether the legislative classification is rationally related to that purpose. In re Estate of Karas (1975), 61 Ill. 2d 40, 47-48.

A reading of the Mobile Home Landlord and Tenant Act indicates that the purpose of sections 6 and 9 of the Act is to protect tenants from landlords who would take unfair advantage of a tenant by raising rental fees and adding charges after the tenant has expended funds by affixing a dwelling onto the rented premises. This appears to be a legitimate governmental interest, and the distinction between the traditional landlord and the mobile home landlord is a legislative classification which is rationally related to that purpose. Therefore, it appears that the defendant has failed to overcome the presumption of validity for both section 6 or section 9.

Finally, the defendant contends that section 9 of the Mobile Home Landlord and Tenant Act is unconstitutionally vague. In pertinent part, section 9 provides:

“The terms for payment of rent shall be clearly set forth and all charges for services, ground or lot rent, unit rent, or any other charges shall be specifically itemized in the lease and in all billings of the tenant by the park owner.” (Ill. Rev. Stat. 1979, ch. 80, par. 209.)

The trial court determined that the defendant’s leases violated this provision in that they contained a provision allowing the park owner to charge a resale-assignment fee of an unspecified amount up to $1,500. The defendant appears to concede that his failure to specify the amount of the fee violated this provision. He argues, however, that the phrase “any other charges” contained in section 9 is unconstitutionally vague.

The language of a statute is unconstitutionally vague when the terms “of the statute are so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.” (Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 299-300; Redemske v. Village of Romeoville (1980), 85 Ill. App. 3d 286, 291.) In other words, in order for a statute to be constitutional, the ordinary person must be capable of appreciating from the language of the statute how he will be affected by its operation. Redemske v. Village of Romeoville (1980), 85 Ill. App. 3d 286, 292.

While the phrase “any other charges” is not defined in the statute, it is a commonly used and understood phrase. Although “any other charges” is a general phrase, it is not a vagiie phrase. The rule of construction known as ejusdem generis is helpful in determining the meaning. When general words or phrases follow a set of enumerated things, under this rule the general word is limited in meaning to the same kind or class as those previously enumerated. (Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 436.) A mobile home landlord of common intelligence who intended to impose a charge on a tenant’s sale of his mobile home and assignment of his lease rights would be aware that this charge would be included in the section 9 category of “any other charge.” We conclude that section 9 does not appear to be unconstitutionally vague.

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

Affirmed.

SEIDENFLED, P. J., and UNVERZAGT, J., concur.