text:
    PHILLIP GOLD, Plaintiff-Appellant, v. JOHN RADER et al., Defendants-Appellees.
    First District (6th Division)
    Nos. 1-89-1301, 1-89-1768 cons.
    Opinion filed July 27, 1990.

      Michael W. Rathsack, of Chicago, for appellant.
    Springer, Casey, Dienstag & Devitt, P.C., of Chicago (Gary E. Dienstag and Edward J. Springer, of counsel), for appellees.
   JUSTICE EGAN

delivered the opinion of the court:

In 1981, the plaintiff, Phillip Gold (Gold), and the defendant, John Rader (Rader), entered into a joint venture agreement involving the ownership and management of an office building. In 1982, the parties entered into a dissolution agreement. The dissolution failed to come about and, in January 1985, Gold retained a law firm (Firm) to represent him in the dispute regarding the dissolution agreement and the property. A senior attorney (Partner) was in charge of the case, but other attorneys from the Firm, including at least one other partner, worked on the case. In August 1986, Gold, by the Firm, filed a complaint against Rader for partition and other relief. In June 1987, Rader filed a motion to strike and dismiss Gold’s then-amended three-count complaint. The partner told Gold about the motion to strike and dismiss, and the firm filed a response to Rader’s motion in October 1987. Gold continued to communicate with the Firm through the first quarter of 1988. Thereafter, however, Gold did not hear from his attorneys, and he assumed that this indicated a lack of material developments in his case.

Following a May 20, 1988, status call at which no one appeared for Gold, the court set a July 8, 1988, pretrial conference and required the appearances of Rader and Gold personally and their counsel. By a letter dated May 20, Rader’s attorney notified the Partner of this order. On July 3, 1988, Rader filed a pretrial memorandum and on July 6, 1988, sent by messenger a copy of the pretrial memorandum to the Partner with a cover letter notifying him of the July 8 conference.

On July 8, 1988, neither Gold nor his attorney appeared at the conference. The court set the case for July 18, 1988, for the purpose of setting a trial date and further ordered that, if Gold failed to appear in court at that time, the court would dismiss his amended complaint with prejudice, and declare Gold in default for his failure to answer or otherwise plead to Rader’s affirmative defenses and counterclaim, and hear instanter a prove up of Rader’s affirmative defenses and counterclaim. By a letter dated July 8, 1988, which was sent by certified mail, Rader’s attorney sent a copy of this order to the Partner, which was delivered July 11,1988.

Neither Gold nor his counsel appeared before the court on July 18, 1988.' Rader submitted his affidavit setting forth the parties’ interests in the property and the value of that property and asked the court to fix Gold’s interest and permit Rader to purchase that interest for $103,357.16. In his judgment order of July 18, 1988, the judge ordered Gold in default, dismissed his complaint with prejudice, found Rader’s counterclaim confessed against Gold and ordered that the joint venture be terminated by way of sale of Gold’s interest in the joint venture to Rader for $103,357.16. Gold’s attorney was sent by certified mail a copy of the July 18 default judgment which was delivered on July 21, 1988.

After July 18, according to Gold’s affidavit which he later filed in his motion to vacate the default judgment, Rader continued to send to Gold notices for arrearages that had been credited against amounts due to Gold in the judgment order of that date. Rader, however, indicated in his counteraffidavit that any such notices were computer-generated rent statements and that after July 18, 1988, Rader never attempted to collect arrearages that were credited in the judgment.

In the fall of 1988, Gold left several telephone messages for the Partner that were not returned. Thereafter, Gold spoke with another partner at the Firm, who indicated that he would ascertain the status of the case and telephone Gold; however, he did not call back.

According to Gold’s affidavit, Gold and Rader maintained separate offices in the subject office building. Also, Gold and Rader “met and spoke” at a meeting of the board of directors of an unrelated corporation, “but nothing was said concerning the lawsuit.” At no time did Rader inform Gold of the default judgment. Rader stated in his affidavit that there had been acrimony between them and that Rader preferred that all communications be made through their attorneys. Moreover, although Rader admitted that he spoke with Gold at a board meeting, he indicated that all the discussions involved the unrelated corporation and that the discussions were in the presence of other directors and were not private.

On September 21, 1988, by certified mail, Rader’s attorneys sent the Partner a notice of tender of payment, indicating that on October 5, 1988, payment of the sum would occur at the offices of Rader’s attorneys and requesting a response from Gold within seven days. This notice was delivered on September 22, 1988. Gold and his attorneys failed to respond to this notice. On September 30, 1988, Rader’s attorneys mailed notice by certified mail to the Partner of a motion set for October 11, 1988, for leave to deposit funds with the clerk of the court and for judicial assignment of Gold’s interest. This notice was received by the Firm on October 4, 1988.

On October 11, 1988, the judge granted Rader leave to deposit the funds with the court clerk and ordered that, upon such deposit, the court would execute a judicial assignment of Gold’s interest. Notice of this order was sent by certified mail to the Partner on October 12, 1988, and received by the Firm on October 14.

On November 30, 1988, after being unable to contact the Partner and after the other partner with whom he had spoken failed to return his call, Gold personally reviewed the court file for his suit and first learned of the judgment against him. Thereafter, he learned that the Partner allegedly suffered from alcoholism and that a disciplinary hearing was proceeding against the Partner. Gold hired a new firm, Altheimer & Gray, which filed a section 2 — 1401 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) petition to vacate the default judgment on January 18, 1989. The petition, which sought to vacate the default judgment, included an affidavit of Gold indicating that Gold had a 50%, rather than a 331/3%, interest in the property and included as support therefor several Federal income tax forms detailing the partners’ interests in the joint venture.

On April 20, 1989, the judge entered an order denying the petition to vacate the default judgment. The judge found that Gold’s petition sufficiently established a meritorious defense to shift the burden on that element to Rader and asked Gold’s counsel to concentrate on the due diligence element. That counsel stated, “I’m not going to try to defend *** the conduct of Mr. Gold’s prior attorneys in this case. I simply don’t think I can *** in good faith before your Honor. *** But I do believe that Mr. Gold has acted with due diligence throughout this matter”; he cited Gold’s experience with the Partner prior to the failures to appear and Gold’s efforts to check on the progress of his case.

The judge found that Gold personally acted with due diligence in presenting the petition to the court after learning of the judgment, but noted that a litigant has a duty to follow the progress of his own case. The judge held that Gold failed to establish due diligence before the judgment was entered, given the conduct of his attorney, whom Gold chose, and his attorney’s firm, and denied the section 2 — 1401 petition. In denying the petition, the court stated that there was “no reason why that money should be held any longer and it should be disbursed without prejudice to anyone’s rights, whether if any subsequent motion is made here or in the appellate court.” Gold did withdraw the money that had been deposited by Rader with the clerk of the court. On May 9, Gold filed a notice of appeal of the April 20, 1989, order denying his motion to vacate. Rader has filed a motion to dismiss the appeal which we will address first.

Rader contends that Gold’s acceptance of the funds deposited with the court clerk barred Gold from appealing the judgment that made those funds available to him. Gold recognizes a general rule that bars an appeal by one who has accepted the benefits of a judgment, but cites an exception to that rule which allows an appeal if the appellant is entitled to the accepted benefit “in any event”; i.e., regardless of the appellate court’s disposition of the appeal. (See Spanel v. Berkman (7th Cir. 1948), 171 F.2d 513, 515 (“ ‘The general rule is well settled that unless -there is a separable controversy, or unless there is some sum to which the appealing party is entitled in any event, he may not accept the benefit of the decree and later appeal. [Citations.]’ ” quoting Spencer v. Babylon R. Co. (2d Cir. 1918), 250 F. 24, 26).) Gold argues that he is entitled to the funds he withdrew regardless of how this court rules. Moreover, Gold contends that Rader has waived this issue by failing to take a cross-appeal from the portion of the judgment allowing Gold to withdraw the funds without prejudice to his rights. We deny the motion to dismiss but not on the ground that Rader failed to cross-appeal.

The default judgment was entered on April 20, 1988. On May 2, 1988, the judge denied the petition to vacate the April 20 order and, at Gold’s request, ordered that “Gold is authorized to withdraw all funds, plus accrued interest, now on deposit with the clerk of the court pursuant to the court’s order of October 11, 1988, without prejudice to rights of appeal, over objection of defendant, John Rader.” (Emphasis added.) On June 9, Rader motioned the trial court under section 2 — 1203(a) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203(a)) to vacate that part of the court’s order of May 2 allowing Gold to withdraw the funds without prejudice to his rights of appeal. Thereafter, the judge granted Rader leave to withdraw his post-trial motion “without prejudice to defendant raising the issues contained therein *** in the event the orders *** are reviewed on appeal.” (Emphasis added.) Gold contends that Rader was required to file a cross-appeal from the order of May 2. We disagree. Both parties apparently were of the view in the trial court that the trial judge could affect appealability by the inclusion of the words “without prejudice” in the May 2 order. He could not. It is for this court to determine whether actions taken by a party after the entry of an appealable order render an appeal moot, divest this court of jurisdiction or render the appeal subject to dismissal. Consequently, whether the withdrawal of the funds by Gold rendered his appeal of the order subject to dismissal was in no way affected by any language used by the trial judge in his order, and Rader was not required to file an appeal from that order.

We do believe, however, that the motion to dismiss the appeal should be denied because Gold, by withdrawing the money deposited by Rader, took nothing that is still subject to dispute. It was Rader who asked for an order permitting him to purchase Gold’s interest. In his affidavit he proffered two possible purchase prices; one was $776,000, which Rader contended was the price fixed by the joint venture agreement. The other price was for the appraised figure of $800,000. That appraisal which was submitted by Rader in his affidavit was made by an appraiser retained by Rader. Rader’s affidavit established that if the court permitted him to buy the property for $776,000, Gold would receive $103,571 for his interest. If the property were sold at $800,000 to a third party, other expenses such as broker’s fees would reduce the value of Gold’s interest to $96,554. The value of Gold’s interest under both price options was based on Rader’s claim, accepted by the court in the default judgment, that Gold was entitled to 43.64% of the purchase price and Rader himself was entitled to 56.36%. The judge ordered that Gold’s interest was purchased by Rader for $103,371 and granted Rader leave to deposit the funds. Gold took only what Rader said he was entitled to take.

The general rule in Illinois is that a litigant cannot attack a decree after enjoying its benefits, if, were the judgment reversed on appeal, the opposing party would be at a disadvantage. (In re Marriage of Kusper (1990), 195 Ill. App. 3d 494.) Rader tells us that if this case were to be reversed, he would be at a disadvantage. We fail to see any realistic possibility of any detriment to him. The judge accepted Rader’s figure of $776,000 as a reasonable purchase price. Gold has admitted that he cannot seek a rescission of the sale to Rader. Consequently, Rader’s fear that a forced sale to a third party is possible upon remand is unfounded. The only dispute that would be involved is whether Gold should get 43.64% of the $776,000 or the higher percentage claimed by Gold. For these reasons, the motion to dismiss the appeal is denied.

Turning now to the merits of the appeal, we shall consider Gold’s contention that the trial judge erred in denying his section 2 — 1401 petition on the ground that the Partner’s lack of diligence barred such relief. Gold asserts that, despite the admitted negligence of the Partner specifically and of the Firm generally, equity demands that his section 2 — 1401 petition be granted because he personally exercised diligence, he established a meritorious defense, and Rader would be unjustly enriched absent a vacation or modification of the default judgment.

The supreme court provided a detailed discussion of the burdens facing a section 2 — 1401 petitioner in Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381:

“[A section 2 — 1401 petition] must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 — 1401 petition for relief. [Citations.] The quantum of proof necessary to sustain a section 2 — 1401 petition is a preponderance of the evidence. [Citations.] Whether a section 2— 1401 petition should be granted lies within the sound discretion of the circuit court, depending upon the facts and equities presented. [Citations.] As such, a court of review is justified in disturbing the judgment of the circuit court only if it finds that the court abused its discretion. [Citations.]” 114 Ill. 2d at 220-21.

The court set forth the requirements of the second element, due diligence in presenting a defense or claim in the original action, as follows:

“Due diligence requires the section 2 — 1401 petitioner to have a reasonable excuse for failing to act within the appropriate time. [Citations.] Since section 2 — 1401 does not afford a litigant a remedy whereby he may be relieved of the consequences of his own mistake or negligence [citations], a party relying on section 2 — 1401 is not entitled to relief ‘unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court.’ [Citation.] Specifically, the petitioner must show that his failure to defend against the lawsuit was the result of an excusable mistake and that under the circumstances he acted reasonably, and not negligently, when he failed to initially resist the judgment. [Citations.] In determining the reasonableness of the excuse offered by the petitioner, all of the circumstances attendant upon entry of the judgment must be considered, including the conduct of the litigants and their attorneys. [Citations.]” (Emphasis added.) (114 Ill. 2d at 222-23.)

Finally, the court cautioned that relief under this section should not be too restricted, but that circuit courts should exercise their equitable powers and grant such petitions to avoid “unfair, unjust or unconscionable” results. 114 Ill. 2d at 225.

In Smith, the plaintiffs sued a builder for breach of contract and breach of warranties in the construction of a room addition to their home. The defendant was served with process at its place of business; service was had upon the defendant’s sales manager. The defendant did not answer or appear within 30 days of service, and the court entered a default judgment against it. The defendant was not given notice of and did not appear at a hearing on damages at which a $50,000 judgment was entered against the defendant. Subsequently, a garnishment summons was served on the defendant’s bank and a judgment was entered against the bank. The following day, the defendant, by counsel, filed a section 2 — 1401 petition asserting that its failure to respond constituted excusable mistake because (1) its duly authorized officers never received the summons and complaint from the sales manager who was served and (2) despite the defendant’s repeated presence at the plaintiffs’ home with the plaintiffs and their attorney, no mention was made of the lawsuit or the default judgment.

The supreme court held that the trial court did not err in concluding that the defendant failed to establish a good excuse for failing to appear. The court noted that while professional courtesy might require a plaintiff to notify a defendant who had failed to appear at a damages hearing or of an intent to seek a default judgment, “this alleged breach of professional courtesy on the part of the plaintiffs’ counsel is insufficient to constitute unfair, unjust, or unconscionable conduct, and does not justify this court’s easing of the due diligence requirement.” 114 Ill. 2d at 226.

In the present case, Rader’s attorney notified his opposing counsel of every step along the path to default judgment and beyond. Gold’s attorney was simply negligent, as the plaintiff admits, in failing to act on these notices. Moreover, like the trial court below, the Smith court noted that a litigant has a duty to follow the progress of his own case and that imposing a duty on litigants and their attorneys to advise their opponent regarding the proceedings “would *** undermine the adversarial nature of our legal system.” (114 Ill. 2d at 226-27.) Given the notices to Gold’s attorney of record, neither Rader nor his attorney had any duty to apprise Gold personally of the state of the proceedings involving his complaint and Rader’s counterclaim. Gold had a duty to personally follow the progress of his case which could not be shifted to his attorney. Section 2 — 1401 “does not afford a remedy to a party who has been negligent or whose trial counsel has been negligent.” (Emphasis added.) Illinois Marine Towing Corp. v. Black (1979), 74 Ill. App. 3d 909, 913, 393 N.E.2d 707, 711. See also Dudek, Inc. v. Shred Pax Corp. (1990), 196 Ill. App. 3d 720.

Gold relies on Campbell v. White (1989), 187 Ill. App. 3d 492, 543 N.E.2d 607, for the proposition that the circumstances presented are so unfair, unjust or unconscionable as to merit section 2 — 1401 relief despite the absence of due diligence in presenting his defense to the trial court. Campbell is distinguishable. The defendant, a police officer, sought to vacate a default judgment within 30 days of the judgment under section 2 — 1301(e). The motion was supported by the affidavits of the defendant and his attorney. The attorney said that he was in private practice and served as a special assistant Attorney General representing the defendant in a case in Federal court; this related action was filed against the defendant in State court and, in violation of the Attorney General’s rule that special assistants handle only those cases to which they are assigned, the attorney told the defendant that he would represent the defendant in the State court matter; the attorney’s affidavit stated that “the chief reason for my lack of diligence in this cause is an ongoing problem with alcohol.” (187 Ill. App. 3d at 498.) The defendant testified that after informing the attorney of the summons in the State court action, he called the attorney 5 to 10 times, but his calls were not returned; he did not write to the attorney nor make any attempts to go to his office; the defendant concluded that if something important happened, the attorney would contact him.

The Campbell court explicitly recognized the difference between petitions under section 2 — 1401 and motions under section 2 — 1301(e), stating that “the question on appeal is not whether the trial court committed an abuse of discretion, but whether substantial justice has been done between the parties under the circumstances of the case.” (187 Ill. App. 3d at 503.) Moreover, the court determined that in considering the movant’s lack of diligence — which is only a factor to be considered under section 2 — 1301(e), not a required element as in section 2 — 1401—it was nonetheless appropriate to charge the moving-party with his attorney’s negligence. The court concluded that the attorney — and thus the defendant — was negligent, but that this negligence did not bar relief because “[i]t was not unreasonable for the defendant to think [the attorney] represented him in [the State court] case nor was he negligent in the selection [of the special assistant Attorney General and] *** after the receipt of the order for judgment, [the defendant] immediately took action.” (187 Ill. App. 3d at 504.) The court reversed the denial of the section 2 — 1301(e) motion because, considering all the factors involved, substantial justice required the vacation of the default judgment.

The standard of review in the instant case is whether the trial judge abused his discretion, not whether substantial justice requires reversal as in Campbell. Gold chose his attorneys; neither the Firm nor the Partner was appointed by the Attorney General. Moreover, unlike the defendant in Campbell, who offered the affidavit of his attorney, Gold offered no affidavit by the Partner to support his assertion that the partner was an alcoholic or to establish some causal relationship between the asserted alcoholism and the lack of due diligence. Also, no explanation is offered for the failure of the Firm and its other attorneys to exercise due diligence in pursuing this case. Gold admits that the Firm performed negligently and is seeking compensation for that negligence in a separate suit against that firm. Imputing this negligence to Gold in the present case was not an abuse of discretion by the trial judge.

After the briefs were filed, Gold was given leave to cite additional authority, Beeson v. Smith (7th Cir. 1990), 893 F.2d 930, and Wilhelmsen v. Century 21 Bee Line Realty, Inc. (1989), 193 Ill. App. 3d 64, 549 N.E.2d 815. Both cases involved petitions to vacate which were filed within 30 days of the dismissal orders. We have already explained that such petitions are governed by standards different from those applicable here.

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and RAKOWSKI, J., concur.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    NICHOLAS PALUMBO, Plaintiff-Appellant, v. HILDA KUIKEN, Defendant-Appellee.
    First District (6th Division)
    No. 1-89-1518
    Opinion filed July 27, 1990.

      Patrick E. Dwyer, of Patrick E. Dwyer & Associates, Ltd., of Chicago, for appellant.
    Judge & Knight, Ltd., of Park Ridge (Charles C. Hoppe, Jr., Colleen H. Considine, and Janella L. Barbrow, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Nicholas Palumbo, filed a personal injury action against the defendant, Hilda Kuiken, for damages allegedly sustained when the defendant’s car collided with the rear end of the plaintiff’s pickup truck on February 14, 1986. The jury returned a verdict in favor of the plaintiff and awarded the sum of $16,500 in damages. The trial judge denied the plaintiff’s motion for a new trial on the issue of damages. The plaintiff contends that the judge committed reversible error in two evidentiary rulings.

On February 14, 1986, the plaintiff was working as a pipefitter in Hammond, Indiana. He was driving north on Torrence Avenue in his pickup truck around 5 p.m. As he approached the intersection of 176th Street and Torrence Avenue, he stopped behind a vehicle which was attempting to turn left.

The defendant was driving her son and his classmate home from school. She also was proceeding north on Torrence Avenue. She was driving 30 or 35 miles per hour when she first noticed the plaintiff’s pickup truck. She never saw the plaintiff’s brake lights or taillights illuminated.

Once she observed the plaintiff’s truck, she slammed on her brakes very hard. She could not avoid the impact; only the force of the collision itself stopped her car. The front of her car went under the back of the truck, and then it bounced back off the truck.

The plaintiff testified that he felt the impact of the collision; it was very hard. The impact jolted him back and forward and all around. While his head went back at impact, it did not hit the back of the cab. He was shaken up immediately after the collision. Nevertheless, he “ran” over to the defendant’s car and asked whether she was all right and whether anybody was hurt; the defendant was crying. She told him that his brake lights were not on.

The impact apparently knocked the plaintiff’s rear bumper into the street; and the lower fender was bent. The impact also allegedly disconnected a wire or two from the back of the truck. The grille of the defendant’s car was broken; part of the hood was crushed back toward the windshield; the headlights on the right side were broken; and the left directional signal was knocked out. The whole front end looked “like an accordion.”

The plaintiff never told anyone at the scene of the accident that he was injured. He never complained to anybody about any pain or discomfort. The defendant testified that she saw him getting in and out of his truck and picking up the pieces that fell off his truck. He never told her that he had been jolted in the accident. The defendant remained at the scene for about 45 minutes to one hour after the collision.

The plaintiff was able to drive his truck away from the scene. He testified that as he was driving home, he noticed that his neck and both shoulders were bothering him. They started to hurt, and he got a “tremendous headache.” He spent a couple of hours at home and then had his wife drive him to Palos Community Hospital (Palos). Palos admitted him and gave him a neck brace, a muscle relaxer and a pain killer. However, the plaintiff did not complain of pain to both shoulders while at the hospital. A couple of X rays were taken, and he was sent home after four hours.

The plaintiff testified that the collision also fractured one of his upper front teeth which held his bridge in place.

Four days later the plaintiff visited his family orthopedic physician, Dr. Robert J. Atkenson. Atkenson testified that the plaintiff told him that he had been in an automobile accident at 176th Street and Torrence Avenue; the plaintiff complained of neck and left shoulder pain. However, a medical questionnaire which the plaintiff filled out for the doctor indicated that he had complained only of pain to the right side of his neck. It did not indicate any complaints about his left shoulder, his back, his right shoulder, headaches or his fractured tooth.

Dr. Atkenson’s initial examination of the plaintiff’s cervical spine on February 18, 1986, revealed a cervical scoliosis. The plaintiff’s reflexes and motor neurological levels were basically normal. He had tenderness to palpation at the front of his left shoulder, and he exhibited objective signs of left shoulder pain. He also had a positive impingement sign which indicated that he suffered from an element of tendonitis or inflammation inside the left shoulder joint. A positive impingement sign can come and go. Dr. Atkenson testified that impingement syndrome was a degenerative condition, but that it was not always a degenerative process. He subsequently performed arthroscopic surgery on the plaintiff’s left shoulder on November 7, 1986. During the surgery he found a tear in the glenoid labrum, which was the lip around the shoulder socket. It was the doctor’s opinion that the injuries to the plaintiff’s left shoulder were caused by the accident.

The condition of the plaintiff’s shoulder improved significantly, but on December 4, 1986, the plaintiff complained of pain in his right shoulder. On December 26, the doctor performed an arthroscopic examination and surgery on the plaintiff’s right shoulder. The medical findings on the right shoulder were basically the same as those on the left shoulder, except for the glenoid labrum tear in the left shoulder. The cause of the pain in the right shoulder was a degenerative process which may have preexisted the accident. In the doctor’s opinion, the accident did not cause any injury to the right shoulder. He had expressed the same opinion at his deposition.

The plaintiff filed answers to interrogatories in which he claimed injuries, lost wages and medical expenses unrelated to the rear-end collision of February 14. Specifically, he claimed the medical expenses associated with arthroscopic surgery for both of his shoulders and dental treatment for gum disease unrelated to the accident. Subsequently he filed answers to supplemental interrogatories in which he was asked to describe any personal injuries sustained by him as a result of the occurrence not previously disclosed in the original answers to interrogatories. He answered, “None, except treating doctor testified that one of my shoulders was not hurt in this collision.” The plaintiff never withdrew his answers to either set of interrogatories. He never sought to amend the answers or to have them superseded in any way. Consequently, before trial, in a motion in limine, the defendant’s attorney advised the trial judge that he intended to cross-examine the plaintiff using the plaintiff’s previously filed answers to both sets of interrogatories which included claims of medical conditions and damages for injuries which were unrelated to the accident.

In response, the plaintiff’s attorney advised the trial judge that the plaintiff was withdrawing any claim for injuries to his right shoulder and for the cost of dental treatment for gum disease. The plaintiff orally moved the court to bar the parties from mentioning any injuries which were unrelated to the collision. The trial judge ruled that he would permit the cross-examination; during the trial the plaintiff’s attorney registered a continuing objection to any questioning which involved the unrelated and verbally withdrawn claims.

On cross-examination the plaintiff admitted that he had sworn to answers to interrogatories that his neck, back and both shoulders were injured because of the collision and that arthroscopic surgery to both shoulders resulted from his injuries. He admitted that he had claimed $2,180 in medical bills from Dr. Atkenson for surgery performed on the right shoulder but asserted that he had withdrawn this claim. Although he had also claimed $2,430 for dental work, he admitted that his fractured tooth and root canal did not cost $2,430. He admitted having claimed in the answers $2,327 in medical costs from St. Francis Hospital for services rendered in December 1986 for his right shoulder surgery but again asserted that he had withdrawn that claim. He said that he did not read his answers “to the letter of everything, but *** in basic form, [he] knew it.” He thought that his right shoulder injury in the December surgery was related to the accident, but after further evaluation, he learned that it was not, and he so noted it. He also admitted that his claim for lost time included the period that he was off because of the right shoulder surgery.

The plaintiff contends that the court erred in permitting the cross-examination concerning his answers to interrogatories for two reasons: (1) his attorney expressly withdrew any claim for injuries to his right shoulder and for treatment for gum disease; and (2) because the answers to interrogatories constituted opinions to which the plaintiff was not qualified to testify.

Under our supreme court rules, answers to interrogatories may be used in evidence to the same extent as discovery depositions. (107 Ill. 2d R. 213 (f).) Thus, interrogatory answers may be used to impeach a witness in the same manner as any other inconsistent statement of a party. (107 Ill. 2d R. 212(a)(1); Tower Oil & Technology Co. v. Buckley (1981), 99 Ill. App. 3d 637, 425 N.E.2d 1060.) A party may use a witness’ prior statement for impeachment as long as the statement is sufficiently inconsistent with the witness’ trial testimony and relates to a material matter. (O’Brien v. Walker (1977), 49 Ill. App. 3d 940, 364 N.E.2d 533.) The trial court has discretion to determine whether evidence is relevant, and a reviewing court will not disturb a trial court’s ruling in the absence of a clear abuse of that discretion. Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 536 N.E.2d 194.

In this case, the plaintiff implicitly concedes that his answers were not true and that they were impeaching. It is his position, however, that because he withdrew the claim for those specific damages the use of false and impeaching answers should not have been used. If his argument is correct, then in any case where a party, before trial, disavows a previous statement, that previous statement may not be used. The unacceptability of the plaintiff’s argument is obvious. Even in the case of withdrawn or superseded pleadings, those pleadings may be used for impeachment purposes. (Winn v. Inman (1983), 119 Ill. App. 3d 836, 457 N.E.2d 141; Davis v. Freels (7th Cir. 1978), 583 F.2d 337.) It should necessarily follow that so also may superseded or withdrawn answers to interrogatories be used for impeachment. Therefore, even if we were to concede that the answers had been withdrawn, their withdrawal would not bar their use for impeachment.

The plaintiff relies principally on Blazina v. Blazina (1976), 42 Ill. App. 3d 159, 356 N.E.2d 164. That case is not in point. The petitioner in that case filed a divorce action which, in part, sought the sale of his jointly owned marital home. The respondent counterclaimed; she did not seek the sale or partition of the home. Immediately before the introduction of evidence, the court permitted the petitioner to withdraw his complaint, and the case was tried on the respondent’s counterclaim alone. The trial court ordered the sale of the marital home. The appellate court ruled that the trial court abused its discretion in ordering the sale of the home because the petitioner’s complaint had been withdrawn before evidence was heard. That case involved a claim for relief which was no longer before the court, not a statement of fact.

The same distinction exists between this case and another case cited by the plaintiff, Guebard v. Jabaay (1983), 117 Ill. App. 3d 1, 452 N.E.2d 751. In Guebard, the appellate court held that by withdrawing certain counts of the complaint, the plaintiff was barred from seeking recovery on a particular theory.

The plaintiff also contends that the answers were improperly introduced because they constituted opinions to which the plaintiff could not testify. That same argument was made and rejected in People v. Edwards (1973), 55 Ill. 2d 25, 302 N.E.2d 306, and Campen v. Executive House Hotel, Inc. (1982), 105 Ill. App. 3d 576, 434 N.E.2d 511. (See also Taylor v. Manhattan Township Park District (1985), 138 Ill. App. 3d 23, 485 N.E.2d 399.) We conclude, therefore, that no error was committed by the use of the plaintiff’s answers to interrogatories.

The plaintiff next claims that the trial judge committed reversible error because he refused to admit into evidence a videotape of the plaintiff’s arthroscopic surgery and because the judge refused an in camera inspection of the videotape before determining its admissibility, thus depriving the plaintiff the opportunity to make an offer of proof.

The decision to admit videotapes into evidence is solely within the discretion of the trial judge. (See Missouri Portland Cement Co. v. United Cement, Lime, Gypsum & Allied Workers International Union, Division of Boilermakers, AFL-CIO, Local No. 138 (1986), 145 Ill. App. 3d 1023, 496 N.E.2d 489; Lawson v. Belt Ry. Co. (1975), 34 Ill. App. 3d 7, 339 N.E.2d 381.) A videotape may be admissible as long as it has a reasonable tendency to prove some material fact in issue and its probative value is not outweighed by its prejudicial effect. Georgacopoulos v. University of Chicago Hospitals & Clinics (1987), 152 Ill. App. 3d 596, 504 N.E.2d 830.

We agree with the judge’s conclusion that the videotape would have added nothing to the plaintiff’s case to which Dr. Atkenson could not and did not testify. Dr. Atkenson testified in considerable detail about the precise nature and extent of the plaintiff’s injury as well as about the surgical procedure itself. Thus, viewing a videotape with little or no probative value would have wasted judicial time to present cumulative evidence which need not be admitted. (See Simmons v. City of Chicago (1983), 118 Ill. App. 3d 676, 455 N.E.2d 232.) We cannot say, therefore, that the judge abused his discretion.

Since we have concluded that no error was committed in the refusal to admit the videotape, any discussion of whether the judge committed error in preventing the plaintiff from making an offer of proof because he refused to view the videotape before ruling would be academic. In any event, the record shows that the trial judge was well informed of the nature of the proffered videotape, how the evidence would be presented and for what purpose it would be introduced. People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018.

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


author: JUSTICE O’CONNOR

text:
      In re M.C., a Minor (The People of the State of Illinois, Plaintiff-Appellee, v. Victoria Gill, Defendant-Appellant).
    First District (1st Division)
    No. 1-89-2551
    Opinion filed July 30, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Mary C. Arundel, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Veryl L. Gambino, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from the order terminating the parental rights of Victoria Gill (Gill), mother of M.C., a minor.

Victoria Gill’s daughter, M.C., was born on October 17, 1983. In December 1985, a finding of neglect was entered and M.C. was adjudicated a ward of the court. Temporary custody was awarded to Gary T. Morgan, the Guardian-Administrator of the Department of Children & Family Services (DCFS), with the right to place M.C. in a foster home. On March 31, 1986, M.C. was placed in the foster home of Nancy and Michael Van Milligen.

On June 7, 1988, the State filed a petition for appointment of a guardian with the right to consent to adoption seeking to have Gill declared an unfit parent. The State alleged that Gill: (i) failed to maintain a reasonable degree of interest, concern or responsibility about M.C.’s welfare; (ii) deserted M.C. for more than three months prior to the proceedings for termination of parental rights; and (iii) failed to make reasonable efforts to correct the conditions which were the basis for M.C.’s removal or to make reasonable progress toward M.C.’s return within 12 months after the adjudication of neglect or dependency, in violation of sections l(D)(b) and l(D)(c) of the Adoption Act (Ill. Rev. Stat. 1987, ch. 40, pars. 1501(D)(b), (D)(c)) and section 2 — 29 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 29), respectively.

On June 26, 1989, the termination hearing began. The State’s first witness was Bonnie Crabb (Crabb), a worker assigned to M.C.’s case. Crabb testified that the case was originally brought to court because of Gill’s drug dependency and neglect of M.C. At the trial, Crabb reviewed and testified about the service plans that were developed for the family. Each service plan covered a six-month period beginning in January 1986 through May 1988.

Crabb reviewed the first service plan, which was from May 1986 through November 1986. The service plan’s goal was for M.C. to return home and included the following objectives: Gill was to attend drug counseling; M.C.’s parents were to visit her regularly; and Gill was to attend a parenting stress group. When Crabb reviewed this service plan, she evaluated that the drug counseling was satisfactory; that visitation was satisfactory; and that the parenting stress group objective was unsatisfactory due to sporadic attendance. Also at the case review, Gill participated in formulating a new service plan for November 1986 through May 1987. The goal still remained for M.C. to return home, but the drug counseling objective specified that Gill was to enter an in-patient facility. Visitation was set on a weekly basis.

Next, Crabb reviewed the November 1986 to May 1987 service plan with Gill and evaluated that the drug treatment objective was unsatisfactory because Gill entered an in-patient facility for one month, and dropped out of the program when she did not return from a temporary pass. Crabb also found that the visitation objective was unsatisfactory because Gill only visited M.C. twice during the six-month period. A new service plan was formulated for May 1987 through November 1987. The service plan’s objectives generally remained the same, but Gill and M.C.’s father were, additionally, supposed to meet with Crabb on a monthly basis.

Crabb then reviewed the May 1987 to November 1987 service plan and evaluated that the visitation objective was unsatisfactory because Gill only visited M.C. once during the six-month period. Also, she found that the drug treatment evaluation was unsatisfactory because Gill did not participate in either of the recommended programs at Women’s Residential Center and Loretta Hospital, nor was she attending the previous drug treatment program. Crabb testified that she and another worker had taken Gill to Loretta Hospital for a drug treatment program, but that Gill did not follow the hospital’s recommendations for treatment. A new service plan was formulated for November 1987 through May 1988. The service plan’s goal changed from M.C.’s “return home” to “long term foster care,” but the objectives set forth for Gill remained the same.

Finally, Crabb reviewed the November 1987 through May 1988 service plan. Crabb testified that the visitation objective was unsatisfactory because Gill did not visit M.C. during the six-month period. Additionally, Crabb found that the drug treatment objective was unsatisfactory because Gill did not attend any drug treatment facility during that period.

During cross-examination by the guardian ad litem, Crabb testified that from November 1986 through May 1988 Gill only visited M.C. three times and had not satisfactorily completed any of the drug treatment programs.

During the cross-examination by the public defender, Crabb testified that from November 1986 through May 1987 Gill was cooperative with the homemaker assigned to her and that Gill was present and signed all case reviews. Crabb also testified that Gill was not cooperative about keeping all of her appointments, but during those visits that did take place, her behavior with M.C. was appropriate.

The State also called Cindy Kirshman, a social worker, who testified that M.C. had just been taken from the long-term foster home of Michael and Nancy Van Milligen in June of 1989, and was placed in a new foster home which would lead to adoptive placement. She further testified that, in her opinion, it was in M.C.’s best interest that the DCFS Guardian-Administrator be appointed her guardian with the right to consent to adoption. After Kirshman testified, the termination hearing was continued to September 6, 1989.

On September 6, 1989, Gill testified. She stated that M.C. would soon be five years old and that she had been out of Gill’s custody for four years. She testified that she had worked with DCFS for four years trying to get M.C. back and that she had been in various drug treatment programs. Additionally, Gill testified that she was not using any drugs or alcohol and that she was on a waiting list for “outside counseling, St. Elizabeth Hospital.” Gill said that she had not visited M.C. for a long time, but said that she asked for a visit “about two months ago” and was told that she would have to wait because M.C.’s foster placement was being changed. Gill also testified that her 10-month-old daughter was living with her. The trial court sustained the State’s objection to defense counsel’s question regarding the fact that Gill’s 10-month-old daughter was living with her under a protective order. Gill testified that she wanted M.C. returned to her in the future and she wanted to have more visits. During cross-examination of Gill by the assistant State’s Attorney, Gill testified that from November 1985 through June 1988, she only visited M.C. once or twice.

Thereafter, the trial court made a finding that Gill and M.C.’s father were unfit because they had failed to maintain a reasonable degree of interest, concern or responsibility for M.C.’s welfare; that they had failed to make reasonable efforts to correct the conditions which were the basis for M.C.’s removal; and that they failed to make reasonable progress toward the return of M.C. The trial court terminated their parental rights and awarded guardianship of M.C. to DCFS with the right to consent to adoption.

Initially, Gill argues that she maintained a reasonable degree of interest, concern, and responsibility for M.C. during the four years that M.C. was in foster care. We disagree. The trial court’s findings must be given great deference since it had the opportunity to view and evaluate the witnesses’ testimony, and the trial court’s decision will not be reversed on appeal unless it is contrary to the manifest weight of the evidence. (See In re Henry (1988), 175 Ill. App. 3d 778, 530 N.E.2d 571.) Gill cites several cases where a parent was found unfit and contends that those cases are distinguishable because the facts were more egregious regarding visitation. (E.g., In re Woods (1977), 54 Ill. App. 3d 729, 369 N.E.2d 1356; In re N.H. (1988), 175 Ill. App. 3d 343, 529 N.E.2d 1115; In re Ice (1976), 35 Ill. App. 3d 783, 342 N.E.2d 460; Pyatt v. Pyatt (1980), 88 Ill. App. 3d 8, 410 N.E.2d 241; In re Perez (1973), 14 Ill. App. 3d 1019, 304 N.E.2d 109.) Contrary to Gill’s contention, more than enough evidence was presented to sustain the trial court’s determination, such as Gill’s continued addiction to drugs, her repeated failure to obtain treatment for that addiction, and her infrequent and irregular visitation with M.C. These facts are more than sufficient to warrant a finding that Gill lacked interest, concern or responsibility for M.C. Even when Gill was informed that DCFS’ goal was to place M.C. in long-term foster care, Gill failed to visit M.C.

Next, Gill challenges the court’s finding of unfitness pursuant to section l(D)(m) (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(m)), arguing that she was making reasonable efforts to correct the conditions that required M.C.’s removal and that she made reasonable progress towards the return of M.C. Again, we disagree. Section l(D)(m) (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(m)) provides that a parent may be found unfit for failure “to make reasonable efforts to correct the conditions which were the basis for the removal of the child from such parent, or to make reasonable progress toward the return of the child to such parent within 12 months after an adjudication of neglected minor.” (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(m).) “Failure to make reasonable efforts to correct conditions and failure to make reasonable progress toward return of the child are independent bases for a finding of unfitness.” (In re Henry (1988), 175 Ill. App. 3d 778, 790, 530 N.E.2d 571, 579.) “Whether a parent’s efforts to correct the conditions are reasonable involves a subjective judgment based upon the amount of effort which is reasonable for a particular person.” (In re Henry (1988), 175 Ill. App. 3d 778, 790, 530 N.E.2d 571, 579.) In contrast, whether a particular parent’s progress towards return of the child within 12 months of being adjudicated neglected is reasonable in - volves an objective judgment based upon the amount of progress measured from the conditions existing at the time custody was taken from the parent. (In re Henry (1988), 175 Ill. App. 3d 778, 790-91, 530 N.E.2d 571, 579.) At a minimum, reasonable progress requires measurable or demonstrable movement toward the goal of reunification. (In re Henry (1988), 175 Ill. App. 3d 778, 791, 530 N.E.2d 571, 579.) After reviewing the evidence presented regarding Gill’s conduct contained in the record, it is clear that Gill’s efforts and progress decreased between 1986 and 1989, since her visits within M.C. lessened and she ceased to participate in any drug treatment program. The record sustains the trial court’s finding that Gill failed to make reasonable efforts to correct the conditions which caused M.C. to be removed and that Gill failed to make progress towards M.C.’s return within 12 months from June 6,1986, the date of adjudication of neglect.

Finally, Gill argues that the trial court improperly excluded evidence regarding her 10-month-old child. We disagree. The trial court properly sustained an objection regarding further questions about the 10-month-old child because testimony regarding Gill’s ability to care for another child is irrelevant to the issue of her fitness as a parent to M.C. Nevertheless, testimony was elicited that Gill’s 10-month-old child was currently at home. Moreover, the claimed error was harmless since clear and convincing evidence was introduced to support a finding that Gill lacked interest, concern and responsibility towards M.C. and that Gill was either unwilling or unable to complete any drug treatment program.

In conclusion, the entirety of the evidence sustains the trial court’s determination that Gill is an unfit parent. Therefore, the order terminating her parental rights is affirmed.

Affirmed.

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

       Addition ally, the record reflects that Gill was present once when M.C. visited her maternal grandmother.

      Although Gill testified that M.C. would be five years old on October 17, 1989, M.C. was actually going to be six years old, having been born in 1983.


author: PRESIDING JUSTICE DiVITO

text:
    HOLLANDER AND HOLLANDER, Plaintiffs-Appellees, v. NICHOLAS KAMENJARIN, Defendant (The Department of Revenue, Defendant-Appellant).
    First District (2nd Division)
    No. 1-88-3417
    Opinion filed July 31, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen Michels Caille, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Hollander & Hollander, of Chicago (Richard J. Hollander and Michael A. Klysh, of counsel), for appellees.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

Hollander and Hollander (Hollander), a law firm and a judgment creditor of Nicholas Kamenjarin, filed an action against the Illinois Department of Revenue (the Department) to garnish certain money allegedly due Kamenjarin from the Department. The circuit court entered judgment against the Department for $3,114.38. In this appeal, the Department maintains that under the doctrine of sovereign immunity, the circuit court lacked jurisdiction to hear this case, which involved an agency of the State of Illinois.

Having obtained a judgment for nonpayment of retail occupation tax against Kamenjarin in 1979, the Department garnished $3,114.38 from him. The money was deposited in the State’s general fund. Thereafter, pursuant to Kamenjarm’s motion, the circuit court quashed service of summons and vacated judgment. The Department subsequently served Kamenjarin with a summons, but the circuit court dismissed the complaint with prejudice pursuant to Rule 103(b) for lack of diligence in obtaining service after the expiration of the statute of limitations. 107 Ill. 2d R. 103(b).

Hollander, which represented Kamenjarin during the latter proceedings, filed suit against him to collect for unpaid legal services and, on January 6, 1988, judgment was entered in its favor for $3,307.65 plus court costs. Seeking to garnish the tax refund claimed to be due Kamenjarin from the dismissal of his case, Hollander served a nonwage garnishment for $3,390.53 on the Department. Initially, the Department failed to answer, and the circuit court entered a conditional judgment against it (see Ill. Rev. Stat. 1987, ch. 110, par. 12 — 706). This judgment was later vacated. On October 17, 1988, following oral argument, the circuit court found that the Department owed $3,114.38 to Kamenjarin. On October 24, 1988, the circuit court denied the Department’s motion to dismiss and ordered it to pay $3,114.38 to Kamenjarin for the use of Hollander within 60 days.

On appeal, the Department maintains that the circuit court lacked jurisdiction in this garnishment action because the Department was a “defendant or party ” within the meaning of “An Act in relation to immunity for the State of Illinois” (Immunity Act) (Ill. Rev. Stat. 1987, ch. 127, par. 801). The Department contends that because Hollander sought a monetary judgment against an agency payable out of State funds, the proper forum was not the circuit court, but the Court of Claims.

Hollander contends that the Department was not immune from this garnishment proceeding, because in such a proceeding the State is not “a defendant or party” within the contemplation of the Immunity Act. Hollander argues that the circuit court had jurisdiction because its order was not a monetary judgment, but a remedy fashioned under its equitable powers in an equitable action.

Whether a suit is brought against the State and thus barred by the doctrine of sovereign immunity does not depend on the identity of the formal parties but rather on the issue raised, the relief sought, and the determination of whether the State is “a defendant or party” within the meaning of the Immunity Act. (Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 186, 470 N.E.2d 1029.) When the State will be directly and adversely affected by the judgment, making the State the real party against whom relief is sought, the suit is against the State. (Herget National Bank v. Kenney (1985), 105 Ill. 2d 405, 408-09, 475 N.E.2d 863.) Thus, when property of the State is involved, the State becomes directly and adversely affected by the suit and the action must be held to be one against the State. Sass v. Kramer (1978), 72 Ill. 2d 485, 491, 381 N.E.2d 975; Marriott Corp. v. Department of Transportation (1989), 186 Ill. App. 3d 167, 171, 542 N.E.2d 163.

In the instant case, Hollander initiated a garnishment proceeding which sought a judgment for the amount due to the judgment creditor. In support of its position, Hollander relies on First Finance Co. v. Pellum (1975), 62 Ill. 2d 86, 91-92, 338 N.E.2d 876, in which the court held that the State is not immune from wage-deduction proceedings under “An Act relating to wage deductions ***” (the Wage Deduction Act) (Ill. Rev. Stat. 1973, ch. 62, par. 71 et seq.) and that the circuit court has jurisdiction in a garnishment proceeding under that act. Pellum explicitly did not decide in what manner the plaintiff would enforce the collection of monies found to be subject to a deduction order. Moreover, Pellum is inapposite to the case at bar, because the issue here is not whether State-paid wages are exempt from wage-deduction proceedings but whether a monetary judgment may be entered against the State.

As the court noted in Aurora National Bank v. Simpson (1983), 118 Ill. App. 3d 392, 454 N.E.2d 1132, subjecting the State to garnishment proceedings and to conditional judgments are inherently distinguishable situations. In garnishment proceedings the State does not lose any of its money but is required only to deliver funds previously appropriated and owed to its employees (see Henderson v. Foster (1974), 59 Ill. 2d 343, 350, 319 N.E.2d 789), whereas in a conditional judgment, the State is subjected to a monetary judgment (see 111. Rev. Stat. 1987, ch. 110, par. 12 — 706) which the circuit court lacks jurisdiction to order. (Aurora National, 118 Ill. App. 3d at 398.) In this case the circuit court issued a monetary judgment payable out of the State’s general funds where the Department had properly deposited the collected revenue. The circuit court had no authority to enter such an order. See Aurora National, 118 Ill. App. 3d at 398.

Hollander’s contention that the circuit court’s order is not a monetary judgment is not supported by the record. In its oral opinion the court stated:

“You [the Department] came in not with clean hands, so I believe the overriding dignity of the Court would rise, its dignity not having been done and order you return the funds.”

Furthermore, since the October 24, 1988, order directed that the Department pay $3,114.38 to Kamenjarin for Hollander’s use within 60 days, it was a monetary judgment.

Hollander has not contended that it cannot seek relief in the Court of Claims. Section 8 of the Court of Claims Act gives exclusive jurisdiction to that court to hear and determine, inter alia, “[a]ll claims against the state founded upon any law of the State of Illinois.” (Ill Rev. Stat. 1981, ch. 37, par. 439.8(a).) The Court of Claims has been granted exclusive jurisdiction to provide for the orderly disbursement of State funds where a plaintiff’s claim has merit, even if the State has not otherwise budgeted for such payment. (See Ill. Rev. Stat. 1987, ch. 37, par. 439.24.) Though the statute prevents the circuit court from entering a monetary judgment against the State, it provides the appropriate remedy. See Aurora National, 118 Ill. App. 3d at 399.

For the foregoing reasons we conclude that sovereign immunity barred the circuit court proceedings. The judgment of the circuit court is reversed.

Reversed.

HARTMAN and BILANDIC, JJ., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN K. COLEMAN, Defendant-Appellant.
    First District (3rd Division)
    No. 1-87-1919
    Opinion filed August 1, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Ellen Fishbein and Hugh Stevens, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Adam D. Grosch, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a jury trial, defendant Brian K. Coleman was found guilty of robbery and burglary of an automobile and sentenced to serve seven years in the Illinois Department of Corrections. Defendant was charged along with codefendant Steve Davis. Davis was tried separately by the court and is not a party to this appeal. On appeal, Coleman argues that (1) the trial court erred in failing to exclude the victim’s hearsay testimony regarding the recovery of her stolen purse; (2) improper remarks made by the State during opening and closing arguments denied defendant a fair trial; and (3) the trial court improperly relied on defendant’s prior section 10 probation (Ill. Rev. Stat. 1983, ch. SG1^, par. 710) when sentencing him to serve seven years in prison and his sentence is grossly disparate to that of his co-defendant. We affirm.

Carmen Devivies testified on behalf of the State at trial. Ms. Devivies testified that on the afternoon of November 24, 1986, she was driving northbound on Pulaski Avenue in Chicago. She stopped her 1985 red Nissan Sentra automobile for a red light about two or three car lengths south of the intersection of Pulaski and Madison. Ms. Devivies testified that as she sat in her car she momentarily looked to her left when suddenly she heard a loud shattering sound, turned to her right and saw glass coming toward her. Ms. Devivies turned away from the glass, and when she looked back to the right, she observed a hand reaching for her purse on the car seat. Ms. Devi-vies grabbed the strap of her purse and began to struggle with the person who was also grabbing the purse. Ms. Devivies was unable to maintain control, and the person grabbed the purse and ran. Ms. Devivies was unable to observe the face of the offender. After the incident, she immediately drove home and later called the police.

James Lemon also testified on behalf of the State. Lemon, an 11th District beat representative and member of the Westside People for Progress Organization, testified that at approximately 1:30 or 2 p.m. on November 24, 1986, he and three other citizens were watching the intersection of Madison and Pulaski Streets because numerous “smash and grabs” had been reported in that area. Lemon testified that at approximately 5 p.m., he observed defendant, whom he knew by the nickname “Kojak,” and codefendant Davis looking into car windows. At approximately 5:30 p.m. Lemon observed both defendants approach a red Nissan auto which was stopped in traffic, northbound on Pulaski. Lemon testified that Davis smashed the car window and removed a purse while Coleman stood two to three feet away looking around the area. After Davis retrieved the purse, both defendants ran south on Pulaski and then east on Monroe. Moments later, an unmarked patrol car passed by and Lemon told the police what he had observed and gave them a description of the offenders. Approximately 15 minutes later, the police returned with the defendants, and Lemon identified them as the offenders.

Chicago police officer Eugene Zielinski was the State’s final witness at trial. He testified that on November 24, 1986, he was working as an 11th District tactical officer assigned to watch Pulaski Avenue for “smash and grabs” in an unmarked car. Officer Zielinski testified that at approximately 5:30 p.m., while driving northbound on Pulaski Avenue, he observed Coleman and Davis in the vicinity of Adams and Pulaski. Zielinski continued driving, and when he reached the intersection of Madison and Pulaski, he observed broken glass on the street. He then talked with Lemon. Zielinski was informed by Lemon that defendants had just committed a “smash and grab.” Zielinski and his partner pursued and apprehended the defendants at Jackson and Pulaski and returned them to the scene of the crime for identification. |

In his defense, defendant introduced into evidence a photograph of the area where the crime occurred. Following closing arguments, the jury found defendant guilty of burglary to auto and robbery. Davis was found guilty of the same offenses by the court.

Following a sentencing hearing, defendant was sentenced to serve seven years in the Illinois Department of Corrections. Davis was initially sentenced to serve three years in the Illinois Department of Corrections, but after a hearing on his motion to reconsider sentence, his sentence was vacated and he was resentenced to three years’ probation with the first 54 days to be served in the Cook County Department of Corrections. This appeal followed.

Defendant first argues that the trial court erred in failing to exclude the complainant’s hearsay testimony regarding the recovery of her stolen purse. We disagree.

When out-of-court statements are used for the purpose of explaining an actor’s conduct and are not used to establish the truth or falsity of the out-of-court statements, such statements do not constitute hearsay evidence. (People v. Bryant (1984), 123 Ill. App. 3d 266, 275, 462 N.E.2d 780, 786; People v. Camp (1984), 128 Ill. App. 3d 223, 230, 470 N.E.2d 540.) In the present case, while Ms. Devivies was testifying regarding the recovery of her purse, the following colloquy occurred:

“ASSISTANT STATE’S ATTORNEY: Did you ever get your purse back?
MS. DEVIVIES: I got a call about two weeks ago, maybe roughly two weeks ago, from a janitor at a public school in that vicinity telling me*”.
DEFENSE COUNSEL: Objection, judge.
THE COURT: Objection overruled. The answer will stand as far as she received a call from the janitor. She cannot go into the substance of that conversation.
ASSISTANT STATE’S ATTORNEY: What did you do after you received that call from the janitor of the school in the vicinity?
DEFENSE COUNSEL: Objection, judge.
THE COURT: Objection overruled. You may answer.
MS. DEVIVIES: I went and picked it up.
ASSISTANT STATE’S ATTORNEY: And what was inside the purse when you picked it up?
MS. DEVIVIES: Pretty much the same stuff that had been in there that I could remember when they stole it except for the money.”

Clearly, Ms. Devivies testified only that she received a phone call from a janitor at a school in the vicinity of the scene of the crime and that she went to the school and retrieved her purse. Ms. Devivies did not offer any testimony regarding the substance of her conversation with the janitor. In fact, the court prohibited Ms. Devivies from revealing the substance of her conversation with the janitor. In sum, Ms. Devivies did not offer any hearsay evidence. Her testimony merely established what her conduct was regarding the recovery of her purse and what items were missing from the purse. We therefore conclude that the trial court did not err in failing to exclude the victim’s testimony regarding the recovery of her purse.

Defendant next argues that improper remarks made by the State during opening and closing arguments denied him a fair trial. We disagree. The purpose of an opening statement is to apprise the jury of facts each party expects to prove in the course of the trial, and absent deliberate misconduct, any error is not a ground for reversal unless the reference resulted in substantial prejudice to the defendant. (People v. Davis (1982), 104 Ill. App. 3d 512, 516, 432 N.E.2d 1134, 1137.) A prosecutor is allowed wide latitude in closing arguments, and a misstatement by a prosecutor does not deprive defendant of a fair trial, unless such remark clearly affected the outcome of the case. Davis, 104 Ill. App. 3d at 516.

Every defendant is entitled to a trial free from improper prejudicial comments or arguments by the prosecutor. (People v. Bivens (1987), 163 Ill. App. 3d 472, 482, 516 N.E.2d 738, 744.) Whether a prosecutor’s comments or arguments constitute prejudicial error is evaluated according to the language used, its relation to the evidence, and the effect of the argument on the defendant’s right to a fair and impartial trial. (People v. Rader (1988), 178 Ill. App. 3d 453, 462, 532 N.E.2d 1365, 1370.) Remarks in closing arguments must be examined in the context of the remarks made by both the State and the defense; but, all remarks made in the closing arguments must be based upon the evidence presented or reasonable inferences drawn therefrom. People v. Lewis (1990), 198 Ill. App. 3d 976, 982.

Defendant complains that remarks made by the prosecutor during the opening statement had the effect of lessening the State’s burden of proving defendant guilty beyond a reasonable doubt. The prosecutor’s remarks were as follows:

“The T.V. cameras you may have seen down in the lobby are not here to see what’s going on in this courtroom because, ladies and gentlemen, what goes on in this courtroom is pretty much like life, it’s pretty routine.
You heard Judge Urso tell you yesterday that this case wasn’t going to take very long. That’s true, it’s not going to take very long. There are very few witnesses. Like life, as I said, it’s pretty routine. It’s like any other case that happens in any other courtroom in this building on any given day. What we’re doing here is not entertainment. We’re doing our jobs, all of us here. This is our job. Today it becomes your job. You’re not an audience. We’re not actresses and actors. You’re not going to see anybody up there playing any kind of role. People testifying from that witness stand will be telling you things that happened to them.”

Contrary to defendant’s assertions, the above-quoted portions of the State’s opening statement do not in any way touch on the issue of the State’s burden of proof. The statement was merely an attempt to describe to the jurors the rather routine nature of actual as opposed to fictionalized criminal trials and to explain the roles of the different parties in the process. We find nothing prejudicial in the prosecutor’s opening statement and conclude that the trial court did not abuse its discretion in allowing these remarks.

Defendant also complains that he was prejudiced by the State’s closing rebuttal argument wherein the prosecutor argued:

“Ladies and gentlemen of the jury, you know we live every day, our lives go by and we live alone for the most part, some of us. We have family, some of us. Some of us have friends. Some of us have no friends. On the night of November the 24, 1986, Carmen Devivies was alone. She had no friends. She had only her own automobile. And these two individuals like hunters in the woods going after baby seals or small animals — .
DEFENSE COUNSEL: Objection.
THE COURT: He may make argument.
ASSISTANT STATE’S ATTORNEY: -came up to that automobile and smashed that window as any coward would do, someone who could not defend themselves, and took the purse from Carmen Devivies.
Now let’s all use our common sense. Nobody told you to leave it out of the courtroom when you came in here today or yesterday. This man doesn’t have to do anything as far as reaching into the car. He was the lookout, ladies and gentlemen. He was the one who set it up. He was the one that went out into the street and looked for the car. He looked for the pigeon. He found the pigeon.
DEFENSE COUNSEL: Objection to that, judge.
THE COURT: He may make reasonable comments.”

The prosecutor’s rebuttal closing argument was based on the evidence and reasonable inferences therefrom. The evidence at trial indicated that defendant and Davis worked together to accomplish the robbery of Ms. Devivies and the burglary of her automobile. Mr. Lemon testified that he watched the defendants as they walked around and looked into several cars before they finally burglarized and robbed Ms. Devivies. The prosecutor’s argument was based on the evidence and the State’s theory of the case. We therefore conclude that the prosecutor’s remarks made during closing rebuttal argument did not deny defendant his right to a fair trial.

Finally, defendant argues that the trial court improperly relied on his prior section 10 probation when sentencing him to serve seven years in prison and that his sentence is grossly disparate to that of his codefendant. We disagree.

The court, when sentencing a defendant, may properly receive proof of criminal conduct for which no prosecution occurred. (People v. La Pointe (1981), 88 Ill. 2d 482, 499, 431 N.E.2d 344, 351.) The imposition of a sentence is a matter of judicial discretion, and absent an abuse of discretion, the sentence of the trial court will not be altered on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) Fundamental fairness requires that defendants who are similarly situated should not receive grossly disparate sentences. (People v. Jackson (1986), 145 Ill. App. 3d 626, 646, 495 N.E.2d 1207, 1222.) However, defendants are not similarly situated if there is a difference in their rehabilitative potential or a difference in the nature and extent of their participation in the crime. (Jackson, 145 Ill. App. 3d at 646.) Rehabilitative potential may be evidenced by a defendant’s criminal record. People v. Knight (1985), 139 Ill. App. 3d 188, 197, 486 N.E.2d 1356, 1362.

In the present case, the court did not abuse its discretion in sentencing defendant to serve seven years in prison for the offenses of robbery and burglary. Defendant’s criminal history, exclusive of the prior section 10 probation, justifies the court’s sentence. Defendant was on probation for burglary at the time that the offenses in this case were committed. In addition, defendant had prior misdemeanor convictions and probation sentences. In sum, defendant’s criminal history showed a lack of rehabilitative potential, and a term of imprisonment was appropriate under the facts. Similarly, defendant cannot be heard to argue that his sentence is disparate to that of his codefendant where the record indicates that the codefendant did not have a prior felony conviction at the time of sentencing.

Accordingly, for all of the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CERDA, P.J., and WHITE, J., concur.