Podolsky & Associates v. Discipio
Annotate this Case
THIRD DIVISION
June 30, 1998
No. 1-97-3339
IN THE APPELLATE COURT
OF ILLINOIS
FIRST JUDICIAL DISTRICT
PODOLSKY AND ASSOCIATES L.P., as
successor and assignee of PODOLSKY AND
ASSOCIATES, LTD.,
Plaintiff-Appellant,
v.
FRANCIS M. DISCIPIO, MARY M. DISCIPIO,
JOSEPH V. DISCIPIO, ANTHONY M. DISCIPIO,
ANNETTE L. PALMIERI, OLYMPIA REMPERT,
BEATRICE DeNEAULT, LEROY J. DeNEAULT,
UNKNOWN OWNERS and NONRECORD CLAIMANTS,
Defendants-Appellees. )
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) Appeal from the
Circuit Court of
Cook County
No. 95CH4776
Honorable
Richard E. Neville,
Judge Presiding.
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
Plaintiff Podolsky and Associates L.P. ("Podolsky") appeals
a judgment entered at the close of evidence in a bench trial in
the circuit court of Cook County that it was not entitled to a
commission for a sale of real estate. It argues the court should
have entered judgment in its favor on its breach of contract
action or, in the alternative, that it is entitled to a retrial
because the court erred in excluding certain evidence. For the
reasons stated below, we affirm.
FACTS
In November 1990, Podolsky entered into two agreements
(collectively, "the listing agreements") to act as exclusive
agent with authority to sell two separate but contiguous parcels
of land (collectively, "the property"). Whether Podolsky was
entitled to a commission under the listing agreements was the
subject of its suit in circuit court. One agreement covered a
parcel of property owned by Francis and Mary Discipio, and the
other covered a parcel owned by Francis and Anthony Discipio, as
well as other persons who settled with Podolsky prior to trial.
(The defendants will thus be collectively referred to as "the
Discipios.") Other than the descriptions of the parcels and the
names of the sellers, the agreements were identical.
The Discipios demanded $5.00 per square foot for the
property, and required that the sale be made for "cash at
closing," but otherwise did not limit Podolsky's authority to
sell the property on their behalf. No reference to any other
prerequisites to a sale appear on the face of the listing
agreements. They provided that Podolsky would be entitled to a
commission "payable in full at the closing of the sale:
(a) for your [Podolsky's] services in procuring a
purchaser, on the above terms or such other terms as
the undersigned shall accept, or (b) if the property is
sold by you, by the undersigned, or by or through any
other person, during the period hereof, or (c) if the
property is sold within six (6) months after the
terminating date hereof to a purchaser, on behalf
thereof [sic], to whom it was submitted by you or your
representatives, provided such party is identified on a
list submitted to the undersigned within thirty (30)
days after the expiration of this agreement."
The agreements also provided that the Discipios would "cooperate
with you [Podolsky] in any way possible in bringing about a sale
of said property and to refer to you all inquiries of brokers or
others interested in said property, and that all negotiations or
dealings shall be with and through you as agent."
The listing agreements were of 12 months duration, but
provided that they could "be continued thereafter for additional
specified periods by mutual agreement of the parties hereto as
may be set forth in writing and signed by same." In October 1991
and November 1992 they were extended by letter agreements through
November 1992 and November 1993, respectively. They were not
extended past November 1993, and in November 1993, within 30 days
after the final term expired, Podolsky submitted a list of
purchasers to whom it had shown the property in accordance with
subsection (c), quoted above. One of the entities listed was
Town & Country Homes ("Town & Country"). The Discipios sold the
property to Town & Country more than six months after November
1993, when the listing agreements finally expired.
Before trial, the court granted the Discipios' motion in
limine to exclude any reference to the fact that Francis Discipio
had been suspended from the practice of law for two years. The
court granted the motion on the basis that the Illinois Supreme
Court "had to make a finding that he no longer was under the
burden of whatever happened before" since Francis had been
readmitted to the practice of law. Francis testified at trial
that in May 1993 Town & Country had sent him a written contract
offering to purchase the entire property at the price of $5.00
per square foot. Francis testified that he did not remember
whether the contract was already signed by a Town & Country
representative when he received it. Before receiving the
contract Francis had received a telephone call from Peter
Brennan, general counsel for Town & Country, in which Brennan
told him that Town & Country had an interest in the property.
Francis testified that he told Brennan that there was "an
exclusive" on the property, and referred him to Podolsky. He did
not negotiate with Town & Country prior to receiving the offer.
In June 1993, several months prior to the expiration of the
final extension of the listing agreements, there was a meeting
between the Discipios and Milton Podolsky, Randy Podolsky and
John Musgjerd, all of whom were representatives of Podolsky. It
was at this meeting that Podolsky first learned of the existence
of Town & Country as a potential purchaser, when Francis showed
the Town & Country offer to the Podolsky representatives.
Francis stated that Randy attempted to photocopy the offer, but
he did not allow him to do so "because I [(Francis)] wanted him
to negotiate directly with Town & Country." He allowed Randy to
write down notes regarding the offer, but never gave a copy of it
to Podolsky. He testified that he destroyed the offer at some
point after the meeting, without keeping a copy, because the
offer was "not acceptable." He testified that the contract
through which the Discipios later (after the expiration of the
listing agreement) sold the property to Town & Country differed
from the 1993 offer in that the final contract recited a minimum
square footage and also provided for the disposition of crops
being grown on the land.
Peter Brennan, general counsel to Town & Country, testified
that it was his understanding that Francis represented all of the
defendants until November 1994, at which time Brennan was
notified that certain of the defendants were being represented by
another attorney. He believed that he called Francis in June
1992 and told him that Town & Country was interested in
purchasing the property. He did not remember Francis telling him
at that or any time that the property was under an exclusive
listing agreement with Podolsky. Brennan testified that he did
not remember any negotiations regarding the purchase once Town &
Country offered $5.00 per square foot. He testified that he
never discussed issues of square footage with any of the
Discipios, and Francis never complained about how any of the
contracts were worded with respect to what was included in the
square footage subject to the contract. He also did not recall
any negotiation regarding crops. Although Brennan did not
specifically recall whether there had been any negotiation with
Francis after Brennan sent him the contracts in June 1993, he
stated that if there had been any, "it would have been minimal."
Brennan stated that it was his practice to send out Town &
Country's contracts with the "seller's [sic]" signature already
thereon, although sometimes he would not, if the contract had not
yet been negotiated. He did not have any drafts or copies of the
offer he had sent in June 1993. Brennan did not remember ever
speaking with anyone from Podolsky regarding the property.
Brennan stated that Town & Country at all times had the capacity
to close on the contracts sent to the Discipios in 1993 or 1994.
Brennan and Francis both testified that in 1989, before
entering the listing agreement with Podolsky, the Discipios had
negotiated with Town & Country for the sale of this same
property. Those negotiations had gone so far as to produce a
written contract signed by both parties, but the sale had fallen
through before closing for reasons irrelevant to this case.
Milton and Randy Podolsky testified to a different version
of what transpired at the June 1993 meeting. They both stated
that the Town & Country offer was signed, and when Francis showed
it to them he stated that he had the property "sold" for $5.00
per square foot, but he intended to wait until the term of the
listing agreement had expired to "finish the deal" so that he
would not have to pay them a commission, because they had not
done any work. He did not ask Podolsky to do anything in the
future, and said nothing about minimum square footage or crops.
Francis became angry when Randy attempted to photocopy the
contract, and when Randy returned it to him he and his brother
immediately left the office.
Milton and Randy testified that although after the June
meeting they knew that Brennan was the attorney for Town &
Country, they never called him because they believed it would
have been unethical to have done so after Francis told them that
there was a deal. They testified that no Podolsky representative
ever spoke with Brennan. Milton stated that Podolsky continued
to work on selling the land after the June meeting, although he
thought that there would have been no point to bringing in
another buyer.
Francis was recalled as a witness, and testified that he did
not say he was going to hold the contract and wait until the
exclusive agreement expired. Rather, he testified that he said
that the property would be taken off the market if it was not
sold during the term of the listing agreement. He testified that
it was taken off of the market when the agreement expired, and he
and his brother attempted to buy the smaller parcel from the
other family members during late 1993 and early 1994. These
negotiations broke down, and in May 1994 he received a letter
from Brennan inquiring about when Town & Country could expect to
receive the signed agreements. Francis testified that in
subsequent conversations with Brennan he told Brennan there were
parts of the 1993 offer which were not acceptable (no square
footage and no provisions for crops or personalty), but if those
terms were corrected, the Discipios would be willing to sell
"after the farm season" in 1994. Brennan sent him a contract in
June 1994, which the Discipios signed in December 1994.
The trial court found the Discipios were not liable for the
commission. The court found that it had not been proven that
Francis said that he would "wait until the termination of the
agreement in order to proceed with Town & Country to--to, in
effect, beat the Podolskys out of their commission." The court
rejected Podolsky's position that they could not contact Town &
Country because they were afraid of a lawsuit, and stated that
although Podolsky would have received its commission if there had
been a deal within the term of the contract, "it turned out that
the deal didn't go through within six months after the contract.
And as a result, there's no way under the contract itself that I
can find that they're entitled to collect this commission." The
court found that it did not have to resolve any issue involving
square footage or crops because of the length of time between the
actual sale and June 1993, when Podolsky was made aware of the
offer from Town & Country.
ANALYSIS
I. PODOLSKY IS NOT ENTITLED TO A COMMISSION
Podolsky first contends that it was entitled to its five
percent commission because a ready, willing, and able buyer made
an offer during the term of the agency agreements which filled
all of the requirements stated therein. We disagree.
As previously noted, the listing agreements provided for
three ways in which Podolsky could become entitled to a
commission:
(a) for your [Podolsky's] services in procuring a
purchaser, on the above terms or such other terms as
the undersigned shall accept, or (b) if the property is
sold by you, by the undersigned, or by or through any
other person, during the period hereof, or (c) if the
property is sold within six (6) months after the
terminating date hereof to a purchaser, on behalf
thereof [sic], to whom it was submitted by you or your
representatives, provided such party is identified on a
list submitted to the undersigned within thirty (30)
days after the expiration of this agreement."
Podolsky does not appear to be entitled to a commission under the
plain language of the provisions, as it did not procure a
purchaser willing to agree to the required terms and the property
was neither sold during the term of the agreement nor within six
months after the expiration of the agreement. Podolsky urges,
however, that it is nevertheless entitled to a commission because
(1) there was a "ready, willing, and able" buyer during the term
of the agreement; and (2) the Discipios committed an anticipatory
breach of the contract.
With regard to Podolsky's first contention, it relies on the
well-established rule that when a broker procures a "ready,
willing and able" buyer during the time of the agency, the seller
of land is obligated to pay the broker's commission regardless of
whether it decides to sell. E.g. Bear Kaufman Realty, Inc. v.
Spec Development, Inc., 268 Ill. App. 3d 898, 902, 645 N.E.2d 244, 247 (1994); Kennedy, Ryan, Monigal & Associates, Inc. v.
Watkins, 242 Ill. App. 3d 289, 294, 609 N.E.2d 925, 928 (1993);
Zink v. Maple Investment and Development Corp., 247 Ill. App. 3d
1032, 1037, 617 N.E.2d 1269, 1273 (1993); Restatement (Second) of
Agency 445, comment (d) ("[i]f the principal has given to the
broker what purports to be his complete terms and the broker
produces a customer ready, able, and willing to enter into the
transaction on those terms, the principal cannot avoid paying the
agreed commission by declining to enter into the transaction, or
by insisting upon variations of or additions to such prescribed
terms which the customer is unwilling to accept"). However,
Podolsky does not seriously contend that it procured Town &
Country, nor would we accept such an argument if made, since it
is clear that Town & Country was aware that the property was for
sale before Podolsky even entered into the listing agreement with
the Discipios, and Podolsky never had any contact with Town &
Country. Podolsky asserts that the rule should apply in this
case nonetheless since under subparagraph (b) of its agreement
with the Discipios it would have been entitled to a commission in
the event of a sale during the term of the agreement whether it
procured the purchaser or not. In essence, Podolsky argues that
subparagraph (b) makes this case indistinguishable from a case in
which a seller refuses to sell to an acceptable buyer whom a
broker procures. This contention is not without force. In
either case, it would appear, the seller is unilaterally
preventing the broker from receiving a commission by refusing to
sell to an acceptable buyer.
However, there is no authority stating that a broker is
entitled to a commission in the instant situation. The case
which comes closest to doing so is Hammel v. Ruby, 139 Ill. App.
3d 241, 487 N.E.2d 409 (1985), which affirmed a judgment that a
broker was entitled to a commission because of an oral sale
during the period of an exclusive listing agreement,
notwithstanding the lack of a written agreement. Accord, Bolger
v. Danley Lumber Company, Inc., 77 Ill. App. 3d 207, 209-210, 395 N.E.2d 1066 1068-69 (1979) (an oral agreement for the sale of
property during the term of an exclusive listing agreement would
entitle a broker to a commission).
However, the holdings in Bolger and Hammel turned on the
seller's agreement to sell the property during the term of the
agreement with the broker. Hammel, 139 Ill. App. 3d at 244, 487 N.E.2d at 412, Bolger, 77 Ill. App. 3d at 209, 395 N.E.2d at
1068. In the instant case, by comparison, the trial court
specifically found that there was no "deal" between Town &
Country and the Discipios until more than six months after the
expiration of the agreement with Podolsky. Podolsky has not
argued that the trial court erred in this determination, and we
would not find it to be against the manifest weight of the
evidence (see Seymour v. Williams, 249 Ill. App. 3d 264, 270, 618 N.E.2d 966, 971 (1993)) even if Podolsky had so argued. Bolger
and Hammel are thus of limited significance.
Although our attention has not been called to any Illinois
authority directly on point, decisions from other jurisdictions
appear uniformly to support the Discipios' position. Even in the
context of listing agreements under which the broker would be
entitled to a commission in the event of any sale during the term
of the agreement, the broker is not entitled to a commission when
after the agreement has expired the landowner sells to a buyer
whom the broker did not procure. E.g. Estes v. Leibsohn, 85 N.W.2d 15 (Iowa 1957); Henry S. Grinde Corporation v. Klindworth,
44 N.W.2d 417 (N.D. 1950); Lewis v. Dahl, 161 P.2d 362 (Utah
1945); Mercantile Trust Co. v. Lamar, 128 S.W. 20 (Mo. Ct. App.
1910); 12 Am. Jur. 2d Brokers 274 (1997). The rationale for
this type of case being treated differently from those in which
the broker has procured the buyer is that unlike in the latter
situation, the seller is not taking the benefit of the broker's
actions.
"[T]he contract bound [the seller] to pay the
commission if he sold the property during the period of
the agency, but did not bind him to make a sale during
said period unless a buyer was found by [the broker].
The utmost of his obligation to [the broker] was to
allow it to find a purchaser while its agency
continued, and thereby earn a commission, or to pay
[the broker] a commission not earned by it in the event
defendant found a buyer and sold during the period.
[The seller] would have been within his rights in
refusing to sell until the expiration of the agency."
Mercantile Trust Co., 128 S.W. at 23 (holding that so
long as the seller did not have an agreement with the
buyer during the term of the listing agreement, it was
free to delay selling until after the listing agreement
had expired even where the delay was "for the purpose
of escaping the payment of a commission").
Lewis and Henry S. Grinde Corp. precluded recovery despite
the existence of oral agreements between the buyers and sellers
during the brokerage agreement, because such agreements are
unenforceable as between the parties thereto. Lewis, 161 P.2d at
365-66; Henry S. Grinde Corp., 44 N.W.2d at 422-23. In Illinois,
as in Utah and North Dakota, unwritten agreements for the sale of
land are unenforceable. 740 ILCS 80/2 (West 1994). However, we
agree with Bolger, Hammel and Mercantile Trust Co. that an oral
agreement nevertheless constitutes a sale which would entitle a
broker to a commission under an exclusive listing agreement.
First, the listing agreement in this case did not require a
written sale, and an oral agreement is a sale. An oral sale of
property is voidable, not void, and may be enforced if the
statute of frauds is not pled. Koenig v. Dohm, 209 Ill. 468,
476, 70 N.E. 1061, 1063 (1904); Cain v. Cross, 293 Ill. App. 3d
255, 258, 687 N.E.2d 1141, 1143 (1997). Second, from the
standpoint of policy, we have some sympathy with the dissent in
Lewis (161 P.2d at 368 (Wade, J., dissenting) ("courts should not
place an interpretation on the meaning of words in contracts
which will encourage connivance and fraud in order to avoid
obligations")), and note that it would be more difficult for a
buyer and seller to wrongfully collude to deprive a broker of his
commission if the broker had the latitude to prove either an oral
or a written sale agreement between them. As stated in
Mercantile Trust Co.,
"The instrument by which plaintiff was appointed agent
would be defeated in one of its main provisions if a
complete agreement might have been reached [between the
buyers and sellers] and yet liability to plaintiff be
evaded by postponing the formal consummation of the
sale until its agency expired. Such an interpretation
would relieve defendant from the duty to observe good
faith in keeping his agreement with plaintiff."
Mercantile Trust Co., 128 S.W. at 22-23.
We believe it is appropriate to circumscribe the opportunity for
the buyer and seller to deliberately delay in order to avoid
payment of the commission.
Moreover, while some cases, including Mercantile Trust Co.,
have held that absent at least an oral agreement a seller may
deliberately delay acceptance with impunity even if his sole
purpose is to avoid payment of a commission, we disagree with
that result. See RE/MAX R.E. Professionals, Inc. v. Armstrong,
288 Ill. App. 3d 552, 558, 680 N.E.2d 520, 524 (1997) (Cook, J.,
specially concurring) (in context of exclusive listing agreements
a broker is entitled to a sale if the seller acts in bad faith to
delay a sale until after the agreement has expired); 12 Am. Jur.
2d Brokers 274 (the rule that a broker is not entitled to a
commission for a sale by an owner unless it is consummated within
the term of the listing agreement applies only "[i]n the absence
of collusion between the owner and the purchaser, or fraud
practiced upon the broker"). This position is consistent with
the general principle that in Illinois the parties to every
contract owe each other duties of good faith and fair dealing. J
& B Steel Contractors, 162 Ill. 2d 265, 278, 642 N.E.2d 1215,
1222 (1994); Saunders v. Michigan Avenue National Bank, 278 Ill.
App. 3d 307, 315, 662 N.E.2d 602, 609 (1996). Thus, Podolsky
would have been entitled to a commission if it had shown that the
Discipios had breached their duties of good faith or fair dealing
by deliberately delaying the sale for purposes of avoiding
payment of the commission. However, in this case the trial court
did not find any evidence of fraud or breach of good faith, and
specifically found that it had not been proven that Francis said
he was waiting to close on the sale in order to "beat [Podolsky]
out of their commission." Podolsky has not appealed this
finding, nor would we find it to have been against the manifest
weight of the evidence (see Braun-Skiba, Ltd. v. LaSalle National
Bank, 279 Ill. App. 3d 912, 665 N.E.2d 485 (1996) (reviewing
courts will defer to trial court's credibility determinations
unless against the manifest weight of the evidence)) if Podolsky
had asserted it was erroneous.
Podolsky also argues that it was entitled to its commission
because the Discipios committed an anticipatory breach of the
listing agreement by failing to notify it of the Town & Country
inquiry and by Francis's purported statement at the June 1993
meeting that he intended to hold the Town & Country contract
until after the listing agreement had expired. This contention
cannot be sustained. First, Podolsky's argument is not truly for
anticipatory breach. An anticipatory breach is a manifestation
by one party to a contract of an intent not to perform its
contractual duty when the time comes for it to do so even if the
other party has by then rendered full and complete performance.
In re Marriage of Olsen, 124 Ill. 2d 19, 24, 982, 528 N.E.2d 684,
686 (1988); Bituminous Casualty Corp. v. Commercial Union Ins.
Co., 273 Ill. App. 3d 923, 930, 652 N.E.2d 1192, 1197 (1995).
The actions of which Podolsky complains allege present breaches
of contract--failure to perform, rather than manifestations of
intent not to perform in the future. Moreover, the actions of
which Podolsky complains are not breaches. The Discipios did not
breach the contract by failing to inform Podolsky of every
inquiry which they received regarding the property. Their duty
under the contract was not to inform Podolsky about inquiries but
to "refer" inquiries to Podolsky--to tell the caller to deal with
Podolsky. This Francis claimed he did. The circuit court's
conclusion that he did is not against the manifest weight of the
evidence, nor is its conclusion that Francis did not make the
statement that he would not sell the property until after the
expiration of the listing agreement. Finally, as explained
above, the Discipios did not breach the listing agreement by
failing to complete the sale until after the listing agreement
and the six-month grace period had passed.
II THE CIRCUIT COURT DID NOT ERR IN EXCLUDING EVIDENCE
THAT ATTORNEY FRANCIS DISCIPIO HAD PREVIOUSLY BEEN
SUBJECT TO SANCTION FOR MISCONDUCT.
Podolsky's second allegation of error on appeal is that the
circuit court erred in granting the Discipios' motion in limine
excluding any evidence of the fact that Francis Discipio had been
suspended from the practice of law for splitting fees with an
attorney he knew to have been disbarred. We disagree.
First, Podolsky argues that the suspension is analogous to a
criminal conviction and may be admitted for impeachment purposes
under the framework established by our supreme court in People v.
Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971). In the
alternative, Podolsky urges us to allow the evidence as a
specific act of misconduct, noting that several other states have
allowed inquiry into disbarment for impeachment purposes (see In
re Thorman's Estate, 144 N.W. 7, 9 (Iowa 1913); Ecco Limited v.
Balimoy Manufacturing Company, 446 N.W.2d 546, 549 (Mich. Ct.
App. 1989); Fuschetti v. Bierman, 319 A.2d 781, 786 (N.J. Super.
Ct. App. Div. 1974); State v. Pearson, 120 A.2d 468, 473 (N.J.
Super. Ct. App. Div. 1956); People v. Roth, 527 N.Y.S.2d 97 (N.Y.
App. Div. 1988); Hyman v. Dworsky, 267 N.Y.S. 539 (N.Y. App. Div.
1933)), and suggesting that such inquiry would be permissible
under Rule 608(b) of the Federal Rules of Evidence, which he
urges this Court to adopt. Rule 608(b) provides that
"[s]pecific instances of the conduct of a witness, for
the purpose of attacking or supporting the witness's
credibility, other than conviction of a crime as
provided in Rule 609, may not be provided by extrinsic
evidence. They may, however, in the discretion of the
court, if probative of truthfulness or untruthfulness,
be inquired into on cross-examination of the witness
(1) concerning the witness's character for truthfulness
or untruthfulness, or (2) concerning the character for
truthfulness or untruthfulness of another witness as to
which character the witness being cross-examined has
testified." Fed. R. Evid. 608(b).
We reject each of these arguments. Rulings regarding
admission of evidence are within the trial court's discretion,
and will be upheld absent an abuse of that discretion. Mann v.
Mann, 283 Ill. App. 3d 915, 918, 671 N.E.2d 73, 76 (1996). The
only Illinois authority on point has refused to admit evidence of
prior suspension or disbarment from the practice of law. See
George S. May International Co. v. International Profit
Associates, 256 Ill. App. 3d 779, 791, 628 N.E.2d 647, 655 (1993)
(disbarment); Pros v. Mid-America Computer Corp., 142 Ill. App.
3d 453, 472, 491 N.E.2d 851, 864 (1986) (suspension). We see no
reason to depart from these cases.
Initially, we find that Francis's suspension is not
sufficiently analogous to a criminal conviction with which he
could be impeached to maintain admissibility on that basis. In
Montgomery, our supreme court adopted the 1971 draft of Federal
Rule of Evidence 609, and held that a witness may be impeached
with proof of conviction of a prior crime, but only if the crime
of which the witness was convicted (1) was punishable by death or
imprisonment for more than one year, or (2) (regardless of the
potential punishment) involved dishonesty or false statement.
Montgomery, 47 Ill. 2d at 516-20, 268 N.E.2d at 698-700;[fn1] M.
Graham, Cleary & Graham's Handbook of Illinois Evidence 609.2,
at 415-16 (6th ed. 1994). Thus attorney disciplinary proceedings
would not appear generally to be sufficiently similar to criminal
proceedings[fn2] to support the analogy. However, we need not
determine whether it would ever generally be appropriate to
impeach an attorney with a prior sanction, because it is clear
that in this case Francis's suspension from the practice of law
fits into neither of the two Montgomery categories.
First, the only possible penalties which may be imposed in a
disciplinary proceedings are disbarment, suspension (for a
specified period and/or until further order of the court),
censure, and reprimand. 155 Ill. 2d R. 771. Since none of these
potential penalties is as severe as imprisonment for one year,
attorney discipline cannot satisfy the first prong of the
Montgomery test.
In determining whether a crime involves dishonesty or false
statement under the second prong of the Montgomery test, only the
provision which the defendant is found to have violated is to be
considered; the circumstances of the defendant's commission of
the violation is not relevant. Knowles v. Panopoulos, 66 Ill. 2d 585, 590-91, 363 N.E.2d 805, 808 (1977). Francis was disciplined
for (1) aiding the unauthorized practice of law; (2) sharing
legal fees with a nonlawyer; and (3) engaging in conduct which
brought the legal profession into disrepute. In re Discipio, 163 Ill. 2d 515, 528, 645 N.E.2d 906, 912 (1994). None of these acts
of misconduct are "crimes" of dishonesty or false statement,
which would implicate Francis's propensity for falsehood on the
witness stand.
Nor would we sanction the usage of an attorney's suspension
or disbarment under the aegis of impeachment with a specific act
of misconduct. In Illinois a witness's credibility may not be
impeached by inquiry into specific acts of misconduct which have
not led to a criminal conviction. People v. West, 158 Ill. 2d 155, 162-64, 632 N.E.2d 1004, 1007-8 (1994) (rejecting argument
that specific acts of untruthfulness may be used to impeach in
cases involving children who are too young to have developed a
reputation as an exception to the rule that only reputation
evidence may be used for impeachment); People v. McGee, 286 Ill.
App. 3d 786, 796, 676 N.E.2d 1341, 1348 (1997)("specific
instances of untruthfulness are not admissible to attack a
witness's believability"); M. Graham, Cleary & Graham's Handbook
of Illinois Evidence 608.5, at 409-10 (6th ed. 1994) ("[t]he
credibility of any witness, including a reputation witness, may
not be attacked upon cross-examination by questioning the witness
concerning specific instances of her misconduct not leading to a
conviction"). But see Esser v. McIntyre, 169 Ill. 2d 292, 304-5,
661 N.E.2d 1138, 1144 (1995) (stating in dictum that with respect
to occupation testimony, a witness's "general credibility may be
attacked by cross-examining that witness regarding a disreputable
occupation," although "the cross-examiner must accept the answer
given by the witness during cross-examination"); Kelley v.
American Motors Corp, 130 Ill. App. 3d 662, 474 N.E.2d 814, 823
(1985) (implying that witnesses might be impeached with
individual acts of misconduct but holding that the trial court
had not abused its discretion in excluding such evidence); People
v. Kirwan, 96 Ill. App. 3d 121, 421 N.E.2d 317, 321 (1981)
(following Kelley). Neither arrests, indictments, charges, nor
even independent proof of the actual commission of a crime may be
introduced for impeachment purposes. People v. Pecoraro, 175 Ill. 2d 294, 677 N.E.2d 875, 883 (1997). This rule applies in
civil cases as well as criminal. Knowles, 66 Ill. 2d at 590-91,
363 N.E.2d at 808.
Inquiry regarding attorney discipline is nothing more than
an attempt to bring out prior specific acts of misconduct in
derogation of the rule barring such inquiry. Notwithstanding
that the majority of states and the federal courts might allow
inquiry into prior acts, Illinois does not; and the authorities
recognize that although this is the minority rule, it is the
better practice. See 3A Wigmore, Evidence 983 at 850 (Chadbourn
rev. 1970) ("the rule of total prohibition of cross-examination,
as well as of extrinsic testimony, on [individual acts of
misconduct], has thus received sanction, and is perhaps the one
most consonant with the needs of the time"); McCormick on
Evidence 41 at 138-39 (4th ed. 1992) ("a number of courts
prohibit altogether cross-examination as to acts of misconduct
for impeachment purposes. This latter view is arguably the
fairest and most expedient practice because of the dangers
otherwise of prejudice (particularly if the witness is a party),
of distraction and confusion, of abuse by the asking of unfounded
questions, and of the difficulties *** of ascertaining whether
particular acts relate to character for truthfulness"). We
reaffirm that Illinois bars impeachment with prior acts of
misconduct, and we accordingly decline to adopt Federal Rule of
Evidence 608(b).[fn3]
It is also important to note with respect to Rule 608(b)
that even if we had the authority to adopt the rule and felt it
were appropriate to do so, we would not adopt it in this case
because to do so would not affect the outcome of this case. The
rule leaves admission of such evidence to the discretion of the
court and we would not find the trial court to have abused its
discretion in excluding the minimally relevant fact that Francis
had shared fees with a non-lawyer in the past. As noted in our
analysis of whether the suspension would be admissible under the
Montgomery test, the connection between fee splitting and a
witness's credibility is tenuous at best.
As a final note, we recognize that the trial judge based his
decision on the fact that Francis had been allowed to regain his
license to practice law. However, we may affirm the trial court
for any reason appearing of record. Country Mutual Insurance Co.
v. Birner, 293 Ill. App. 3d 452, 459, 688 N.E.2d 859, 864 (1997).
CONCLUSION
For the reasons above stated, we affirm the judgment of the
Circuit Court of Cook County.
Affirmed.
CAHILL and BURKE, JJ., concur.
[fn1] Other requirements are imposed as well, e.g., the
conviction may not be used if more than ten years have elapsed
since the individual was convicted or released from confinement
(whichever is later), and the court may exclude the evidence if
it determines within its discretion that the prejudicial effect
of admitting the conviction would substantially outweigh its
probative value. See Montgomery, 47 Ill. 2d at 516, 268 N.E.2d
at 698, quoting proposed Rule 609(b) and proposed Rule 609(a)(3),
respectively. However, we need not apply these additional
safeguards in order to determine that the suspension in this case
would not pass the Montgomery test.
[fn2] As one example, the standard of proof in attorney
disciplinary proceedings is merely clear and convincing evidence
(155 Ill. 2d R. 753(c)(6); In re Bell, 147 Ill. 2d 15, 36, 588 N.E.2d 1093, 1102 (1992)), as opposed to beyond a reasonable
doubt.
[fn3] We note that although it is clear that the Illinois
Supreme Court has the authority to adopt a federal rule (e.g.,
Wilson v. Clark, 84 Ill. 2d 186, 196, 417 N.E.2d 1322, 1327
(1981) (adopting Federal Rules of Evidence 703 and 705);
Montgomery (adopting proposed Federal Rule 609)), it is not
entirely clear that we as an appellate court have that same
authority even were we otherwise inclined to do so. Cf. Zelinski
v. Security Lumber Co. of Kankakee, 133 Ill. App. 3d 927, 938,
479 N.E.2d 1091, 1099 (1985); People v. Krison, 63 Ill. App. 3d
531, 537, 380 N.E.2d 449, 454 (1978) (an appellate court lacks
the authority to adopt new rules or amend the present rules of
our supreme court). However, we need not finally resolve this
question because, for the reasons stated in the text, we would
not adopt the rule in this case regardless of whether we have the
power to do so.
June 30, 1998
No. 1-97-3339
IN THE APPELLATE COURT
OF ILLINOIS
FIRST JUDICIAL DISTRICT
PODOLSKY AND ASSOCIATES L.P., as
successor and assignee of PODOLSKY AND
ASSOCIATES, LTD.,
Plaintiff-Appellant,
v.
FRANCIS M. DISCIPIO, MARY M. DISCIPIO,
JOSEPH V. DISCIPIO, ANTHONY M. DISCIPIO,
ANNETTE L. PALMIERI, OLYMPIA REMPERT,
BEATRICE DeNEAULT, LEROY J. DeNEAULT,
UNKNOWN OWNERS and NONRECORD CLAIMANTS,
Defendants-Appellees. )
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)
)
) Appeal from the
Circuit Court of
Cook County
No. 95CH4776
Honorable
Richard E. Neville,
Judge Presiding.
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
Plaintiff Podolsky and Associates L.P. ("Podolsky") appeals
a judgment entered at the close of evidence in a bench trial in
the circuit court of Cook County that it was not entitled to a
commission for a sale of real estate. It argues the court should
have entered judgment in its favor on its breach of contract
action or, in the alternative, that it is entitled to a retrial
because the court erred in excluding certain evidence. For the
reasons stated below, we affirm.
FACTS
In November 1990, Podolsky entered into two agreements
(collectively, "the listing agreements") to act as exclusive
agent with authority to sell two separate but contiguous parcels
of land (collectively, "the property"). Whether Podolsky was
entitled to a commission under the listing agreements was the
subject of its suit in circuit court. One agreement covered a
parcel of property owned by Francis and Mary Discipio, and the
other covered a parcel owned by Francis and Anthony Discipio, as
well as other persons who settled with Podolsky prior to trial.
(The defendants will thus be collectively referred to as "the
Discipios.") Other than the descriptions of the parcels and the
names of the sellers, the agreements were identical.
The Discipios demanded $5.00 per square foot for the
property, and required that the sale be made for "cash at
closing," but otherwise did not limit Podolsky's authority to
sell the property on their behalf. No reference to any other
prerequisites to a sale appear on the face of the listing
agreements. They provided that Podolsky would be entitled to a
commission "payable in full at the closing of the sale:
(a) for your [Podolsky's] services in procuring a
purchaser, on the above terms or such other terms as
the undersigned shall accept, or (b) if the property is
sold by you, by the undersigned, or by or through any
other person, during the period hereof, or (c) if the
property is sold within six (6) months after the
terminating date hereof to a purchaser, on behalf
thereof [sic], to whom it was submitted by you or your
representatives, provided such party is identified on a
list submitted to the undersigned within thirty (30)
days after the expiration of this agreement."
The agreements also provided that the Discipios would "cooperate
with you [Podolsky] in any way possible in bringing about a sale
of said property and to refer to you all inquiries of brokers or
others interested in said property, and that all negotiations or
dealings shall be with and through you as agent."
The listing agreements were of 12 months duration, but
provided that they could "be continued thereafter for additional
specified periods by mutual agreement of the parties hereto as
may be set forth in writing and signed by same." In October 1991
and November 1992 they were extended by letter agreements through
November 1992 and November 1993, respectively. They were not
extended past November 1993, and in November 1993, within 30 days
after the final term expired, Podolsky submitted a list of
purchasers to whom it had shown the property in accordance with
subsection (c), quoted above. One of the entities listed was
Town & Country Homes ("Town & Country"). The Discipios sold the
property to Town & Country more than six months after November
1993, when the listing agreements finally expired.
Before trial, the court granted the Discipios' motion in
limine to exclude any reference to the fact that Francis Discipio
had been suspended from the practice of law for two years. The
court granted the motion on the basis that the Illinois Supreme
Court "had to make a finding that he no longer was under the
burden of whatever happened before" since Francis had been
readmitted to the practice of law. Francis testified at trial
that in May 1993 Town & Country had sent him a written contract
offering to purchase the entire property at the price of $5.00
per square foot. Francis testified that he did not remember
whether the contract was already signed by a Town & Country
representative when he received it. Before receiving the
contract Francis had received a telephone call from Peter
Brennan, general counsel for Town & Country, in which Brennan
told him that Town & Country had an interest in the property.
Francis testified that he told Brennan that there was "an
exclusive" on the property, and referred him to Podolsky. He did
not negotiate with Town & Country prior to receiving the offer.
In June 1993, several months prior to the expiration of the
final extension of the listing agreements, there was a meeting
between the Discipios and Milton Podolsky, Randy Podolsky and
John Musgjerd, all of whom were representatives of Podolsky. It
was at this meeting that Podolsky first learned of the existence
of Town & Country as a potential purchaser, when Francis showed
the Town & Country offer to the Podolsky representatives.
Francis stated that Randy attempted to photocopy the offer, but
he did not allow him to do so "because I [(Francis)] wanted him
to negotiate directly with Town & Country." He allowed Randy to
write down notes regarding the offer, but never gave a copy of it
to Podolsky. He testified that he destroyed the offer at some
point after the meeting, without keeping a copy, because the
offer was "not acceptable." He testified that the contract
through which the Discipios later (after the expiration of the
listing agreement) sold the property to Town & Country differed
from the 1993 offer in that the final contract recited a minimum
square footage and also provided for the disposition of crops
being grown on the land.
Peter Brennan, general counsel to Town & Country, testified
that it was his understanding that Francis represented all of the
defendants until November 1994, at which time Brennan was
notified that certain of the defendants were being represented by
another attorney. He believed that he called Francis in June
1992 and told him that Town & Country was interested in
purchasing the property. He did not remember Francis telling him
at that or any time that the property was under an exclusive
listing agreement with Podolsky. Brennan testified that he did
not remember any negotiations regarding the purchase once Town &
Country offered $5.00 per square foot. He testified that he
never discussed issues of square footage with any of the
Discipios, and Francis never complained about how any of the
contracts were worded with respect to what was included in the
square footage subject to the contract. He also did not recall
any negotiation regarding crops. Although Brennan did not
specifically recall whether there had been any negotiation with
Francis after Brennan sent him the contracts in June 1993, he
stated that if there had been any, "it would have been minimal."
Brennan stated that it was his practice to send out Town &
Country's contracts with the "seller's [sic]" signature already
thereon, although sometimes he would not, if the contract had not
yet been negotiated. He did not have any drafts or copies of the
offer he had sent in June 1993. Brennan did not remember ever
speaking with anyone from Podolsky regarding the property.
Brennan stated that Town & Country at all times had the capacity
to close on the contracts sent to the Discipios in 1993 or 1994.
Brennan and Francis both testified that in 1989, before
entering the listing agreement with Podolsky, the Discipios had
negotiated with Town & Country for the sale of this same
property. Those negotiations had gone so far as to produce a
written contract signed by both parties, but the sale had fallen
through before closing for reasons irrelevant to this case.
Milton and Randy Podolsky testified to a different version
of what transpired at the June 1993 meeting. They both stated
that the Town & Country offer was signed, and when Francis showed
it to them he stated that he had the property "sold" for $5.00
per square foot, but he intended to wait until the term of the
listing agreement had expired to "finish the deal" so that he
would not have to pay them a commission, because they had not
done any work. He did not ask Podolsky to do anything in the
future, and said nothing about minimum square footage or crops.
Francis became angry when Randy attempted to photocopy the
contract, and when Randy returned it to him he and his brother
immediately left the office.
Milton and Randy testified that although after the June
meeting they knew that Brennan was the attorney for Town &
Country, they never called him because they believed it would
have been unethical to have done so after Francis told them that
there was a deal. They testified that no Podolsky representative
ever spoke with Brennan. Milton stated that Podolsky continued
to work on selling the land after the June meeting, although he
thought that there would have been no point to bringing in
another buyer.
Francis was recalled as a witness, and testified that he did
not say he was going to hold the contract and wait until the
exclusive agreement expired. Rather, he testified that he said
that the property would be taken off the market if it was not
sold during the term of the listing agreement. He testified that
it was taken off of the market when the agreement expired, and he
and his brother attempted to buy the smaller parcel from the
other family members during late 1993 and early 1994. These
negotiations broke down, and in May 1994 he received a letter
from Brennan inquiring about when Town & Country could expect to
receive the signed agreements. Francis testified that in
subsequent conversations with Brennan he told Brennan there were
parts of the 1993 offer which were not acceptable (no square
footage and no provisions for crops or personalty), but if those
terms were corrected, the Discipios would be willing to sell
"after the farm season" in 1994. Brennan sent him a contract in
June 1994, which the Discipios signed in December 1994.
The trial court found the Discipios were not liable for the
commission. The court found that it had not been proven that
Francis said that he would "wait until the termination of the
agreement in order to proceed with Town & Country to--to, in
effect, beat the Podolskys out of their commission." The court
rejected Podolsky's position that they could not contact Town &
Country because they were afraid of a lawsuit, and stated that
although Podolsky would have received its commission if there had
been a deal within the term of the contract, "it turned out that
the deal didn't go through within six months after the contract.
And as a result, there's no way under the contract itself that I
can find that they're entitled to collect this commission." The
court found that it did not have to resolve any issue involving
square footage or crops because of the length of time between the
actual sale and June 1993, when Podolsky was made aware of the
offer from Town & Country.
ANALYSIS
I. PODOLSKY IS NOT ENTITLED TO A COMMISSION
Podolsky first contends that it was entitled to its five
percent commission because a ready, willing, and able buyer made
an offer during the term of the agency agreements which filled
all of the requirements stated therein. We disagree.
As previously noted, the listing agreements provided for
three ways in which Podolsky could become entitled to a
commission:
(a) for your [Podolsky's] services in procuring a
purchaser, on the above terms or such other terms as
the undersigned shall accept, or (b) if the property is
sold by you, by the undersigned, or by or through any
other person, during the period hereof, or (c) if the
property is sold within six (6) months after the
terminating date hereof to a purchaser, on behalf
thereof [sic], to whom it was submitted by you or your
representatives, provided such party is identified on a
list submitted to the undersigned within thirty (30)
days after the expiration of this agreement."
Podolsky does not appear to be entitled to a commission under the
plain language of the provisions, as it did not procure a
purchaser willing to agree to the required terms and the property
was neither sold during the term of the agreement nor within six
months after the expiration of the agreement. Podolsky urges,
however, that it is nevertheless entitled to a commission because
(1) there was a "ready, willing, and able" buyer during the term
of the agreement; and (2) the Discipios committed an anticipatory
breach of the contract.
With regard to Podolsky's first contention, it relies on the
well-established rule that when a broker procures a "ready,
willing and able" buyer during the time of the agency, the seller
of land is obligated to pay the broker's commission regardless of
whether it decides to sell. E.g. Bear Kaufman Realty, Inc. v.
Spec Development, Inc., 268 Ill. App. 3d 898, 902, 645 N.E.2d 244, 247 (1994); Kennedy, Ryan, Monigal & Associates, Inc. v.
Watkins, 242 Ill. App. 3d 289, 294, 609 N.E.2d 925, 928 (1993);
Zink v. Maple Investment and Development Corp., 247 Ill. App. 3d
1032, 1037, 617 N.E.2d 1269, 1273 (1993); Restatement (Second) of
Agency 445, comment (d) ("[i]f the principal has given to the
broker what purports to be his complete terms and the broker
produces a customer ready, able, and willing to enter into the
transaction on those terms, the principal cannot avoid paying the
agreed commission by declining to enter into the transaction, or
by insisting upon variations of or additions to such prescribed
terms which the customer is unwilling to accept"). However,
Podolsky does not seriously contend that it procured Town &
Country, nor would we accept such an argument if made, since it
is clear that Town & Country was aware that the property was for
sale before Podolsky even entered into the listing agreement with
the Discipios, and Podolsky never had any contact with Town &
Country. Podolsky asserts that the rule should apply in this
case nonetheless since under subparagraph (b) of its agreement
with the Discipios it would have been entitled to a commission in
the event of a sale during the term of the agreement whether it
procured the purchaser or not. In essence, Podolsky argues that
subparagraph (b) makes this case indistinguishable from a case in
which a seller refuses to sell to an acceptable buyer whom a
broker procures. This contention is not without force. In
either case, it would appear, the seller is unilaterally
preventing the broker from receiving a commission by refusing to
sell to an acceptable buyer.
However, there is no authority stating that a broker is
entitled to a commission in the instant situation. The case
which comes closest to doing so is Hammel v. Ruby, 139 Ill. App.
3d 241, 487 N.E.2d 409 (1985), which affirmed a judgment that a
broker was entitled to a commission because of an oral sale
during the period of an exclusive listing agreement,
notwithstanding the lack of a written agreement. Accord, Bolger
v. Danley Lumber Company, Inc., 77 Ill. App. 3d 207, 209-210, 395 N.E.2d 1066 1068-69 (1979) (an oral agreement for the sale of
property during the term of an exclusive listing agreement would
entitle a broker to a commission).
However, the holdings in Bolger and Hammel turned on the
seller's agreement to sell the property during the term of the
agreement with the broker. Hammel, 139 Ill. App. 3d at 244, 487 N.E.2d at 412, Bolger, 77 Ill. App. 3d at 209, 395 N.E.2d at
1068. In the instant case, by comparison, the trial court
specifically found that there was no "deal" between Town &
Country and the Discipios until more than six months after the
expiration of the agreement with Podolsky. Podolsky has not
argued that the trial court erred in this determination, and we
would not find it to be against the manifest weight of the
evidence (see Seymour v. Williams, 249 Ill. App. 3d 264, 270, 618 N.E.2d 966, 971 (1993)) even if Podolsky had so argued. Bolger
and Hammel are thus of limited significance.
Although our attention has not been called to any Illinois
authority directly on point, decisions from other jurisdictions
appear uniformly to support the Discipios' position. Even in the
context of listing agreements under which the broker would be
entitled to a commission in the event of any sale during the term
of the agreement, the broker is not entitled to a commission when
after the agreement has expired the landowner sells to a buyer
whom the broker did not procure. E.g. Estes v. Leibsohn, 85 N.W.2d 15 (Iowa 1957); Henry S. Grinde Corporation v. Klindworth,
44 N.W.2d 417 (N.D. 1950); Lewis v. Dahl, 161 P.2d 362 (Utah
1945); Mercantile Trust Co. v. Lamar, 128 S.W. 20 (Mo. Ct. App.
1910); 12 Am. Jur. 2d Brokers 274 (1997). The rationale for
this type of case being treated differently from those in which
the broker has procured the buyer is that unlike in the latter
situation, the seller is not taking the benefit of the broker's
actions.
"[T]he contract bound [the seller] to pay the
commission if he sold the property during the period of
the agency, but did not bind him to make a sale during
said period unless a buyer was found by [the broker].
The utmost of his obligation to [the broker] was to
allow it to find a purchaser while its agency
continued, and thereby earn a commission, or to pay
[the broker] a commission not earned by it in the event
defendant found a buyer and sold during the period.
[The seller] would have been within his rights in
refusing to sell until the expiration of the agency."
Mercantile Trust Co., 128 S.W. at 23 (holding that so
long as the seller did not have an agreement with the
buyer during the term of the listing agreement, it was
free to delay selling until after the listing agreement
had expired even where the delay was "for the purpose
of escaping the payment of a commission").
Lewis and Henry S. Grinde Corp. precluded recovery despite
the existence of oral agreements between the buyers and sellers
during the brokerage agreement, because such agreements are
unenforceable as between the parties thereto. Lewis, 161 P.2d at
365-66; Henry S. Grinde Corp., 44 N.W.2d at 422-23. In Illinois,
as in Utah and North Dakota, unwritten agreements for the sale of
land are unenforceable. 740 ILCS 80/2 (West 1994). However, we
agree with Bolger, Hammel and Mercantile Trust Co. that an oral
agreement nevertheless constitutes a sale which would entitle a
broker to a commission under an exclusive listing agreement.
First, the listing agreement in this case did not require a
written sale, and an oral agreement is a sale. An oral sale of
property is voidable, not void, and may be enforced if the
statute of frauds is not pled. Koenig v. Dohm, 209 Ill. 468,
476, 70 N.E. 1061, 1063 (1904); Cain v. Cross, 293 Ill. App. 3d
255, 258, 687 N.E.2d 1141, 1143 (1997). Second, from the
standpoint of policy, we have some sympathy with the dissent in
Lewis (161 P.2d at 368 (Wade, J., dissenting) ("courts should not
place an interpretation on the meaning of words in contracts
which will encourage connivance and fraud in order to avoid
obligations")), and note that it would be more difficult for a
buyer and seller to wrongfully collude to deprive a broker of his
commission if the broker had the latitude to prove either an oral
or a written sale agreement between them. As stated in
Mercantile Trust Co.,
"The instrument by which plaintiff was appointed agent
would be defeated in one of its main provisions if a
complete agreement might have been reached [between the
buyers and sellers] and yet liability to plaintiff be
evaded by postponing the formal consummation of the
sale until its agency expired. Such an interpretation
would relieve defendant from the duty to observe good
faith in keeping his agreement with plaintiff."
Mercantile Trust Co., 128 S.W. at 22-23.
We believe it is appropriate to circumscribe the opportunity for
the buyer and seller to deliberately delay in order to avoid
payment of the commission.
Moreover, while some cases, including Mercantile Trust Co.,
have held that absent at least an oral agreement a seller may
deliberately delay acceptance with impunity even if his sole
purpose is to avoid payment of a commission, we disagree with
that result. See RE/MAX R.E. Professionals, Inc. v. Armstrong,
288 Ill. App. 3d 552, 558, 680 N.E.2d 520, 524 (1997) (Cook, J.,
specially concurring) (in context of exclusive listing agreements
a broker is entitled to a sale if the seller acts in bad faith to
delay a sale until after the agreement has expired); 12 Am. Jur.
2d Brokers 274 (the rule that a broker is not entitled to a
commission for a sale by an owner unless it is consummated within
the term of the listing agreement applies only "[i]n the absence
of collusion between the owner and the purchaser, or fraud
practiced upon the broker"). This position is consistent with
the general principle that in Illinois the parties to every
contract owe each other duties of good faith and fair dealing. J
& B Steel Contractors, 162 Ill. 2d 265, 278, 642 N.E.2d 1215,
1222 (1994); Saunders v. Michigan Avenue National Bank, 278 Ill.
App. 3d 307, 315, 662 N.E.2d 602, 609 (1996). Thus, Podolsky
would have been entitled to a commission if it had shown that the
Discipios had breached their duties of good faith or fair dealing
by deliberately delaying the sale for purposes of avoiding
payment of the commission. However, in this case the trial court
did not find any evidence of fraud or breach of good faith, and
specifically found that it had not been proven that Francis said
he was waiting to close on the sale in order to "beat [Podolsky]
out of their commission." Podolsky has not appealed this
finding, nor would we find it to have been against the manifest
weight of the evidence (see Braun-Skiba, Ltd. v. LaSalle National
Bank, 279 Ill. App. 3d 912, 665 N.E.2d 485 (1996) (reviewing
courts will defer to trial court's credibility determinations
unless against the manifest weight of the evidence)) if Podolsky
had asserted it was erroneous.
Podolsky also argues that it was entitled to its commission
because the Discipios committed an anticipatory breach of the
listing agreement by failing to notify it of the Town & Country
inquiry and by Francis's purported statement at the June 1993
meeting that he intended to hold the Town & Country contract
until after the listing agreement had expired. This contention
cannot be sustained. First, Podolsky's argument is not truly for
anticipatory breach. An anticipatory breach is a manifestation
by one party to a contract of an intent not to perform its
contractual duty when the time comes for it to do so even if the
other party has by then rendered full and complete performance.
In re Marriage of Olsen, 124 Ill. 2d 19, 24, 982, 528 N.E.2d 684,
686 (1988); Bituminous Casualty Corp. v. Commercial Union Ins.
Co., 273 Ill. App. 3d 923, 930, 652 N.E.2d 1192, 1197 (1995).
The actions of which Podolsky complains allege present breaches
of contract--failure to perform, rather than manifestations of
intent not to perform in the future. Moreover, the actions of
which Podolsky complains are not breaches. The Discipios did not
breach the contract by failing to inform Podolsky of every
inquiry which they received regarding the property. Their duty
under the contract was not to inform Podolsky about inquiries but
to "refer" inquiries to Podolsky--to tell the caller to deal with
Podolsky. This Francis claimed he did. The circuit court's
conclusion that he did is not against the manifest weight of the
evidence, nor is its conclusion that Francis did not make the
statement that he would not sell the property until after the
expiration of the listing agreement. Finally, as explained
above, the Discipios did not breach the listing agreement by
failing to complete the sale until after the listing agreement
and the six-month grace period had passed.
II THE CIRCUIT COURT DID NOT ERR IN EXCLUDING EVIDENCE
THAT ATTORNEY FRANCIS DISCIPIO HAD PREVIOUSLY BEEN
SUBJECT TO SANCTION FOR MISCONDUCT.
Podolsky's second allegation of error on appeal is that the
circuit court erred in granting the Discipios' motion in limine
excluding any evidence of the fact that Francis Discipio had been
suspended from the practice of law for splitting fees with an
attorney he knew to have been disbarred. We disagree.
First, Podolsky argues that the suspension is analogous to a
criminal conviction and may be admitted for impeachment purposes
under the framework established by our supreme court in People v.
Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971). In the
alternative, Podolsky urges us to allow the evidence as a
specific act of misconduct, noting that several other states have
allowed inquiry into disbarment for impeachment purposes (see In
re Thorman's Estate, 144 N.W. 7, 9 (Iowa 1913); Ecco Limited v.
Balimoy Manufacturing Company, 446 N.W.2d 546, 549 (Mich. Ct.
App. 1989); Fuschetti v. Bierman, 319 A.2d 781, 786 (N.J. Super.
Ct. App. Div. 1974); State v. Pearson, 120 A.2d 468, 473 (N.J.
Super. Ct. App. Div. 1956); People v. Roth, 527 N.Y.S.2d 97 (N.Y.
App. Div. 1988); Hyman v. Dworsky, 267 N.Y.S. 539 (N.Y. App. Div.
1933)), and suggesting that such inquiry would be permissible
under Rule 608(b) of the Federal Rules of Evidence, which he
urges this Court to adopt. Rule 608(b) provides that
"[s]pecific instances of the conduct of a witness, for
the purpose of attacking or supporting the witness's
credibility, other than conviction of a crime as
provided in Rule 609, may not be provided by extrinsic
evidence. They may, however, in the discretion of the
court, if probative of truthfulness or untruthfulness,
be inquired into on cross-examination of the witness
(1) concerning the witness's character for truthfulness
or untruthfulness, or (2) concerning the character for
truthfulness or untruthfulness of another witness as to
which character the witness being cross-examined has
testified." Fed. R. Evid. 608(b).
We reject each of these arguments. Rulings regarding
admission of evidence are within the trial court's discretion,
and will be upheld absent an abuse of that discretion. Mann v.
Mann, 283 Ill. App. 3d 915, 918, 671 N.E.2d 73, 76 (1996). The
only Illinois authority on point has refused to admit evidence of
prior suspension or disbarment from the practice of law. See
George S. May International Co. v. International Profit
Associates, 256 Ill. App. 3d 779, 791, 628 N.E.2d 647, 655 (1993)
(disbarment); Pros v. Mid-America Computer Corp., 142 Ill. App.
3d 453, 472, 491 N.E.2d 851, 864 (1986) (suspension). We see no
reason to depart from these cases.
Initially, we find that Francis's suspension is not
sufficiently analogous to a criminal conviction with which he
could be impeached to maintain admissibility on that basis. In
Montgomery, our supreme court adopted the 1971 draft of Federal
Rule of Evidence 609, and held that a witness may be impeached
with proof of conviction of a prior crime, but only if the crime
of which the witness was convicted (1) was punishable by death or
imprisonment for more than one year, or (2) (regardless of the
potential punishment) involved dishonesty or false statement.
Montgomery, 47 Ill. 2d at 516-20, 268 N.E.2d at 698-700;[fn1] M.
Graham, Cleary & Graham's Handbook of Illinois Evidence 609.2,
at 415-16 (6th ed. 1994). Thus attorney disciplinary proceedings
would not appear generally to be sufficiently similar to criminal
proceedings[fn2] to support the analogy. However, we need not
determine whether it would ever generally be appropriate to
impeach an attorney with a prior sanction, because it is clear
that in this case Francis's suspension from the practice of law
fits into neither of the two Montgomery categories.
First, the only possible penalties which may be imposed in a
disciplinary proceedings are disbarment, suspension (for a
specified period and/or until further order of the court),
censure, and reprimand. 155 Ill. 2d R. 771. Since none of these
potential penalties is as severe as imprisonment for one year,
attorney discipline cannot satisfy the first prong of the
Montgomery test.
In determining whether a crime involves dishonesty or false
statement under the second prong of the Montgomery test, only the
provision which the defendant is found to have violated is to be
considered; the circumstances of the defendant's commission of
the violation is not relevant. Knowles v. Panopoulos, 66 Ill. 2d 585, 590-91, 363 N.E.2d 805, 808 (1977). Francis was disciplined
for (1) aiding the unauthorized practice of law; (2) sharing
legal fees with a nonlawyer; and (3) engaging in conduct which
brought the legal profession into disrepute. In re Discipio, 163 Ill. 2d 515, 528, 645 N.E.2d 906, 912 (1994). None of these acts
of misconduct are "crimes" of dishonesty or false statement,
which would implicate Francis's propensity for falsehood on the
witness stand.
Nor would we sanction the usage of an attorney's suspension
or disbarment under the aegis of impeachment with a specific act
of misconduct. In Illinois a witness's credibility may not be
impeached by inquiry into specific acts of misconduct which have
not led to a criminal conviction. People v. West, 158 Ill. 2d 155, 162-64, 632 N.E.2d 1004, 1007-8 (1994) (rejecting argument
that specific acts of untruthfulness may be used to impeach in
cases involving children who are too young to have developed a
reputation as an exception to the rule that only reputation
evidence may be used for impeachment); People v. McGee, 286 Ill.
App. 3d 786, 796, 676 N.E.2d 1341, 1348 (1997)("specific
instances of untruthfulness are not admissible to attack a
witness's believability"); M. Graham, Cleary & Graham's Handbook
of Illinois Evidence 608.5, at 409-10 (6th ed. 1994) ("[t]he
credibility of any witness, including a reputation witness, may
not be attacked upon cross-examination by questioning the witness
concerning specific instances of her misconduct not leading to a
conviction"). But see Esser v. McIntyre, 169 Ill. 2d 292, 304-5,
661 N.E.2d 1138, 1144 (1995) (stating in dictum that with respect
to occupation testimony, a witness's "general credibility may be
attacked by cross-examining that witness regarding a disreputable
occupation," although "the cross-examiner must accept the answer
given by the witness during cross-examination"); Kelley v.
American Motors Corp, 130 Ill. App. 3d 662, 474 N.E.2d 814, 823
(1985) (implying that witnesses might be impeached with
individual acts of misconduct but holding that the trial court
had not abused its discretion in excluding such evidence); People
v. Kirwan, 96 Ill. App. 3d 121, 421 N.E.2d 317, 321 (1981)
(following Kelley). Neither arrests, indictments, charges, nor
even independent proof of the actual commission of a crime may be
introduced for impeachment purposes. People v. Pecoraro, 175 Ill. 2d 294, 677 N.E.2d 875, 883 (1997). This rule applies in
civil cases as well as criminal. Knowles, 66 Ill. 2d at 590-91,
363 N.E.2d at 808.
Inquiry regarding attorney discipline is nothing more than
an attempt to bring out prior specific acts of misconduct in
derogation of the rule barring such inquiry. Notwithstanding
that the majority of states and the federal courts might allow
inquiry into prior acts, Illinois does not; and the authorities
recognize that although this is the minority rule, it is the
better practice. See 3A Wigmore, Evidence 983 at 850 (Chadbourn
rev. 1970) ("the rule of total prohibition of cross-examination,
as well as of extrinsic testimony, on [individual acts of
misconduct], has thus received sanction, and is perhaps the one
most consonant with the needs of the time"); McCormick on
Evidence 41 at 138-39 (4th ed. 1992) ("a number of courts
prohibit altogether cross-examination as to acts of misconduct
for impeachment purposes. This latter view is arguably the
fairest and most expedient practice because of the dangers
otherwise of prejudice (particularly if the witness is a party),
of distraction and confusion, of abuse by the asking of unfounded
questions, and of the difficulties *** of ascertaining whether
particular acts relate to character for truthfulness"). We
reaffirm that Illinois bars impeachment with prior acts of
misconduct, and we accordingly decline to adopt Federal Rule of
Evidence 608(b).[fn3]
It is also important to note with respect to Rule 608(b)
that even if we had the authority to adopt the rule and felt it
were appropriate to do so, we would not adopt it in this case
because to do so would not affect the outcome of this case. The
rule leaves admission of such evidence to the discretion of the
court and we would not find the trial court to have abused its
discretion in excluding the minimally relevant fact that Francis
had shared fees with a non-lawyer in the past. As noted in our
analysis of whether the suspension would be admissible under the
Montgomery test, the connection between fee splitting and a
witness's credibility is tenuous at best.
As a final note, we recognize that the trial judge based his
decision on the fact that Francis had been allowed to regain his
license to practice law. However, we may affirm the trial court
for any reason appearing of record. Country Mutual Insurance Co.
v. Birner, 293 Ill. App. 3d 452, 459, 688 N.E.2d 859, 864 (1997).
CONCLUSION
For the reasons above stated, we affirm the judgment of the
Circuit Court of Cook County.
Affirmed.
CAHILL and BURKE, JJ., concur.
[fn1] Other requirements are imposed as well, e.g., the
conviction may not be used if more than ten years have elapsed
since the individual was convicted or released from confinement
(whichever is later), and the court may exclude the evidence if
it determines within its discretion that the prejudicial effect
of admitting the conviction would substantially outweigh its
probative value. See Montgomery, 47 Ill. 2d at 516, 268 N.E.2d
at 698, quoting proposed Rule 609(b) and proposed Rule 609(a)(3),
respectively. However, we need not apply these additional
safeguards in order to determine that the suspension in this case
would not pass the Montgomery test.
[fn2] As one example, the standard of proof in attorney
disciplinary proceedings is merely clear and convincing evidence
(155 Ill. 2d R. 753(c)(6); In re Bell, 147 Ill. 2d 15, 36, 588 N.E.2d 1093, 1102 (1992)), as opposed to beyond a reasonable
doubt.
[fn3] We note that although it is clear that the Illinois
Supreme Court has the authority to adopt a federal rule (e.g.,
Wilson v. Clark, 84 Ill. 2d 186, 196, 417 N.E.2d 1322, 1327
(1981) (adopting Federal Rules of Evidence 703 and 705);
Montgomery (adopting proposed Federal Rule 609)), it is not
entirely clear that we as an appellate court have that same
authority even were we otherwise inclined to do so. Cf. Zelinski
v. Security Lumber Co. of Kankakee, 133 Ill. App. 3d 927, 938,
479 N.E.2d 1091, 1099 (1985); People v. Krison, 63 Ill. App. 3d
531, 537, 380 N.E.2d 449, 454 (1978) (an appellate court lacks
the authority to adopt new rules or amend the present rules of
our supreme court). However, we need not finally resolve this
question because, for the reasons stated in the text, we would
not adopt the rule in this case regardless of whether we have the
power to do so.
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