author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LORENZO FORD, Defendant-Appellant.
    First District (4th Division)
    No. 1—91—0294
    Opinion filed April 9, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Robert D. Click, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Veronica X. Calderon, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Lorenzo Ford, was convicted of murder and sentenced to 35 years in prison. His conviction and sentence were affirmed on direct appeal. He filed a pro se petition for post-conviction relief and, through appointed counsel, a supplemental petition. The petition was dismissed without an evidentiary hearing.

On appeal, Ford argues that the trial court erred in dismissing the petition because it stated grounds for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1 et seq.).

We affirm.

Background

The post-conviction petition alleged that Ford’s trial -and appellate attorneys failed to provide him with effective assistance of counsel. Specifically, trial counsel failed to move for a severance of Ford’s trial from that of codefendant De Wayne Clemons. In addition, trial counsel failed to move for the suppression of the statement Ford gave while in police custody. Ford’s post-conviction petition further asserted that appellate counsel was ineffective for failing to raise those issues on direct appeal.

Ford asserts that the statement of Clemons, who was tried with him, differs from his own statement in the material respect of Ford’s mental state at the time he stabbed the victim, Roscoe Jenkins. Clemons told police that he, Clemons, wanted to seek out and fight the victim because of an earlier fight that evening in which the victim had hit a friend of the codefendant’s. According to Clemons, Ford took out a knife and said, “I just sharpened this knife and I’m ready to use it, and I hope we bump into the nigger that stole on Steve.”

Ford’s statement to police, on the other hand, characterizes the events as an unplanned encounter with the victim, who threatened Clemons and charged him. According to Ford, he came to the aid of Clemons and stabbed the victim.

The main thrust of Ford’s argument is that he was denied his sixth amendment right to meaningful assistance of counsel because of the failure of his attorney to move to sever the trials of Ford and Clemons. The use of Clemons’ statement in the joint trial, he claims, devastated Ford’s voluntary manslaughter defense.

Opinion

I

A

At the heart of Ford’s argument is the question of when and under what circumstances a court can permit the statement of a nontestifying codefendant, whose statement incriminates the other defendant, to be introduced in a joint trial. (See, e.g., Cruz v. New York (1987), 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714; accord People v. Mahaffey (1989), 128 Ill. 2d 388, 539 N.E.2d 1172, cert. denied (1989), 493 U.S. 873, 107 L. Ed. 2d 156, 110 S. Ct. 203 (noting that the two defendants’ confessions were of the “buck passing” variety and therefore truly unreliable); see also Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056.) In Cruz, one brother confessed that he, along with his brother and two others, robbed a gas station and killed the attendant. The brothers were tried together and the one brother’s confession was admitted at trial with a cautionary instruction that the jury could consider the confession against the one brother only. Both brothers were convicted. On appeal, the Supreme Court reversed, holding that where a nontestifying codefendant’s confession is not admissible against the other defendant, the confrontation clause of the sixth amendment bars its admission at the joint trial.

In Lee v. Illinois, both the defendant, Lee, and codefendant, Thomas, confessed to the stabbing of two people. Their confessions interlocked in several respects, including a description of the argument between codefendants and the confrontation between the victims and the defendants. The codefendants’ statements diverged, however, as to their state of mind as they committed the fatal stabbings. Thomas confessed to a premeditated plan to murder one of the victims, while Lee’s confession claimed that Thomas had been provoked by the victim’s behavior and simply snapped the night of the murders. Neither defendant testified at trial, and the court expressly used Thomas’ confession as substantive evidence against Lee.

The Supreme Court held that Lee’s conviction must be reversed and a new trial granted because the trial court erred in relying on Thomas’ confession as substantive evidence against Lee on the element of premeditation. Under the facts of the case, there was insufficient indicia of reliability, particularly since Thomas had initially refused to talk to police and only gave his statement after police told him Lee had confessed and was urging him to “share the blame.”

Ford relies heavily on Lee and Cruz to support the contention that his trial should have been severed from that of his codefendant and that his trial counsel’s failure to move for severance constitutes ineffective assistance of counsel. Ford did not raise the severance issue in his direct appeal from the conviction. He now claims that his appellate counsel, by failing to raise the issue, deprived Ford of effective assistance of appellate counsel.

Our review of the denial of the post-conviction petition is limited to a consideration of trial errors so profound as to result in a substantial denial of the petitioner’s constitutional rights. (E.g., People v. Cobb (1986), 150 Ill. App. 3d 267, 501 N.E.2d 699, appeal denied (1987), 113 Ill. 2d 578, 505 N.E.2d 356.) This court must therefore determine whether the decision not to move for severance should be deemed ineffective assistance of counsel under the standard of Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.

Strickland holds that a lawyer’s representation of a defendant is not deemed to violate constitutional safeguards unless the lawyer’s performance fell below an objective standard of reasonableness and so prejudiced the defense of the case that defendant was denied a fair trial. Defendant must rebut the presumption of competent representation by first establishing that his attorney’s performance fell below the standard of objective reasonableness; if he cannot do so, the court need not reach the issue of prejudice. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061.) Furthermore, the defendant is held to the standard of demonstrating, “not simply a possibility of prejudice, but that the claimed error worked to his actual and substantial disadvantage.” People v. Owens (1989), 129 Ill. 2d 303, 318, 544 N.E.2d 276, 282, cert. denied (1990), 497 U.S. 1032, 111 L. Ed. 2d 802, 110 S. Ct. 3294.

In the pending case, Ford must establish that his trial attorney’s failure to move for a severance cannot be justified under the objective reasonableness standard. Ford also must prove that had his attorney successfully moved for severance Ford likely would not have been convicted of first degree murder. This is not an easy burden.

As the State points out, at the time of Ford’s trial, the law permitted the use of interlocking statements in joint trials, as long as the jury was instructed to consider the statements only against their maker. (See, e.g., Parker v. Randolph (1979), 442 U.S. 62, 60 L. Ed. 2d 713, 99 S. Ct. 2132; People v. Gibons (1986), 149 Ill. App. 3d 37, 500 N.E.2d 517, appeal denied (1987), 113 Ill. 2d 579, 505 N.E.2d 357.) We do not believe that it is objectively reasonable to expect lawyers to anticipate future developments of existing law. (See Smith v. Murray (1986), 477 U.S. 527, 91 L. Ed. 2d 434, 106 S. Ct. 2661.) Moreover, the Supreme Court in Cruz specifically noted that the admission of a codefendant’s confession in a joint trial may be deemed harmless error. (Cruz, 481 U.S. at 194, 95 L. Ed. 2d at 172, 107 S. Ct. at 1718.) In the pending case, the State had two voluntary confessions and a credible eyewitness. The defendants acknowledged their shared blame for the death of the victim. Therefore, even assuming that defense counsel’s failure to request a severance in the pending action was objectively unreasonable, we do not believe Ford has established the second element of the Strickland test, that of material prejudice.

The evidence against Ford in this case was overwhelming. In addition to his own written, signed confession, a key witness testified for the State as to the role of Ford in the slaying. Krystal Warren, the victim’s former girlfriend, testified that she had been in the company of Clemons and Ford during the events that led to the stabbing. Before Warren and Clemons met up with Ford, the victim and Clemons had become involved in an altercation at Warren’s apartment. Later, Clemons introduced Warren to Ford at a liquor store. Clemons and Warren saw Ford again, later in the evening, aboard a bus. Clemons told Ford that the victim had hit a mutual friend in the face earlier in the evening. Warren testified that Ford displayed a black-handled knife with a five-inch blade while they were on the bus, and kept opening and closing it.

The witness testified that she, Clemons, and Ford left the bus and walked around her neighborhood for awhile. Then Clemons suggested that they go to his cousin’s house at an address on West Hastings. According to Warren, the victim was dating a girl who lived in the same apartment building. When Ford, Warren, and Clemons arrived at the building, the victim pushed open the door and took a step toward Clemons. According to Warren, the victim’s hands were at his side. Clemons punched him in the jaw and then grabbed his legs, throwing him to the ground. At that point, Warren went into the lobby of the building and turned to watch the three men outside. Ford was swinging his knife while Clemons held down the victim. Warren saw Ford make stabbing movements with the knife while Clemons prevented the victim from escaping. The victim finally managed to break away and run, with Clemons and Ford in pursuit. Warren testified that when the two men returned to the apartment building, they were laughing and Ford wiped the blood off of his knife with the victim’s hat.

Warren repeated some of the codefendants’ statements on the witness stand. According to her, Clemons told Ford he could have stabbed Clemons, and Ford said, “No, I wasn’t going to stab you because I was looking what I was doing.” Also, Ford told Clemons that he, Ford, “already had [his] knife out, when [he] saw the victim come out of the building.”

While Ford argued that he believed his acts were necessary to defend himself and his friend, the evidence at trial does not bear that out. Warren testified that Clemons landed the first punch, then grabbed the victim and held him down while Ford stabbed him. When he broke free, the defendants chased him. Ford admitted cutting the victim, but claimed the stabbing was in response to a perceived threat to Clemons. Even so, both defendants admitted that they did not see a weapon in the victim’s hands. The scenario thus described is the mortal stabbing of an unarmed man by one defendant while the other pinned the victim down, plus a subsequent chase after the victim.

Under these facts it is difficult to believe that Ford would have been acquitted of murder or convicted of voluntary manslaughter even in a separate trial in which the court barred Clemons’ comments about Ford’s desire for knife practice. Ford admitted that he wielded the knife, but claimed at trial that he did so only because he thought the victim was hurting Clemons. So he, Ford, swung the knife to keep the victim away. Had he intended to merely wave the knife around as a deterrent, however, it is unlikely that he would plunge it into the victim’s chest with enough force to pierce the victim’s lung and heart. Forensic evidence produced at trial described such a wound as the cause of death. The evidence further showed the presence of small incised wounds on the victim’s fingers, which are indicative of defensive wounds. This suggests that Ford swung the knife at least once before inflicting the deeper wound to the heart and lung.

We reject Ford’s contention that the admission of Clemons’ statement in the joint trial severely prejudiced his defense by suggesting that Ford acted with premeditation. The intent requirement of first degree murder does not require a well-thought-out plan in advance of the killing; rather, all that is necessary is that the fatal act be accompanied by a contemporaneous intent to kill or knowledge that one’s actions are likely to result in great bodily harm or death. Accordingly, we hold that Ford’s assertion of ineffective assistance of trial counsel fails under the Strickland standard and the trial court properly dismissed the post-conviction petition on that basis.

B

We reach a similar result on the second assertion of ineffective assistance of trial counsel — failure of the defense attorney to move to quash Ford’s arrest and suppress his confession. The confession contained exculpatory statements as to his mental state. As a trial tactic, moving to suppress a statement containing exculpatory matters might be viewed as counterproductive, especially given the expected testimony of Krystal Warren, whose eyewitness account was particularly damning. In fact, given the strength of the State’s case, Ford’s only hope for presenting a mitigating mental state was to use his own statements from the confession and to testify at trial regarding his mental state at the time of the stabbing. If the confession had been suppressed and Ford then testified at trial, the State could have used his confession in impeachment. If he declined to testify, Warren’s testimony would have provided overwhelming and unrebutted evidence of his role in the slaying. For these reasons, defense counsel clearly did not fall below the standard of objective reasonableness in electing not to challenge the admissibility of his client’s statements to the police.

Moreover, we are far from persuaded that a motion to quash the arrest and suppress the confession would have been successful, given the circumstances. Ford argues in his petition that the police acted improperly in effecting a warrantless arrest at his home. (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.) The facts, however, do not support the assertion that the police violated Payton in effecting Ford’s arrest. When the police arrived at Warren’s house to interrogate her, Clemons was present. He and Warren accompanied the police to the station for interviews. The police first spoke to Warren, then to Clemons, who admitted that he and Ford had stabbed the victim. Clemons further agreed to accompany the police to an address where Ford could be located. According to the record, the address where Ford was found was not his home address. In any event, the police arrested Ford when he came out onto the porch in response to Clemons’ entreaties. After his arrest, Ford gave police a statement, consistent with his trial testimony, in which -he attempted to show that the stabbing was in response to the victim’s attack on Clemons.

Ford does not assert that the police lacked probable cause for his arrest, but instead argues that his warrantless arrest was tainted by police deception. We agree with the State, however, that the officers’ use of Clemons to aid them in securing a peaceful arrest does not constitute the type of deceptive or coercive conduct that might taint the warrantless arrest of a person in his home. Ford was a suspect in a violent homicide and the murder weapon had not been found at the crime scene. The police reasonably believed that Ford was armed and dangerous and might have material evidence in his possession. Ford might have fled the jurisdiction. If the Payton rule against warrantless arrests in suspects’ homes even applies in this case, we believe that exigent circumstances were present when the police made the arrest. See, e.g., People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543.

We conclude that Ford’s assertions of ineffective assistance of trial counsel lack merit. The defense strategy was to minimize the severity of the offense, not deny its occurrence. The State had compelling evidence of Ford’s guilt apart from his confession and that of his codefendant.

II

Since we have held that trial counsel’s acts or omissions did not constitute ineffective assistance of counsel, it follows that appellate counsel cannot be found incompetent for failing to assert trial counsel’s incompetence. The record indicates that appellate counsel raised several issues on direct appeal, including a challenge to the court’s refusal to instruct the jury regarding voluntary and involuntary manslaughter and a challenge to the admission of rebuttal testimony tending to show that defendant had admitted a prior, unprovoked stabbing. These and two other issues on appeal were rejected as unpersuasive. This, then, is not a case in which appellate counsel can be faulted for overlooking substantial trial errors that could be viewed as contributing substantially to the conviction. Rather, the claim of ineffective assistance of appellate counsel is wholly derived from the challenge to the trial attorney’s defensive strategies. Under the Strickland standard, which applies to review of appellate counsel’s representation also (People v. Caballero (1989), 126 Ill. 2d 248, 533 N.E.2d 1089), Ford must establish that his appellate lawyer’s failure to raise a particular issue was objectively unreasonable and, but for this failure, the conviction or sentence would likely have been reversed. This he cannot do.

For the foregoing reasons, we affirm the trial court’s dismissal of Ford’s post-conviction petition.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE JIGANTI

license: Public Domain

text:
    ENIS WAKEFIELD, Plaintiff-Appellant, v. SEARS, ROEBUCK AND COMPANY et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—91—1456
    Opinion filed April 9, 1992.

      Leonard M. Ring & Associates, Inc., of Chicago (Leonard M. Ring, William J. Jovan, and Leslie J. Rosen, of counsel), for appellant.
    Arnstein & Lehr, of Chicago (Arthur L. Klein, Michael A. Stiegel, and John T. Wagener, of counsel), for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Enis Wakefield, brought a product liability action against the defendants, Sears, Roebuck and Co. (Sears) and Johnson Controls, Inc. (Johnson), seeking to recover damages for injuries he sustained when a car battery exploded. Prior to trial the defendants moved to dismiss the complaint as a discovery sanction pursuant to Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)). The motion alleged that the plaintiff failed to preserve certain evidence critical to resolving the issues of proximate causation and product misuse. Following a hearing, the trial court granted the defendants’ motion and dismissed the complaint with prejudice. The plaintiff has appealed, contending that the trial court abused its discretion in imposing so drastic a sanction.

The plaintiff was injured on June 13, 1984, when a car battery manufactured by Johnson and sold by Sears exploded near his face, causing battery acid to come into contact with his eyes. The plaintiff retained the law firm of Leonard Ring & Associates, P.C., to represent him in his lawsuit against the defendants. Tim Osicka, an associate in the firm, hired an investigator named Joel Pompa to interview witnesses to the incident.

Pompa took recorded statements from two occurrence witnesses, Gary Wakefield and Johnny Jones, and from two prior owners of the car battery, Tony Wakefield and Sedgwick Barry. Pompa then sent Tim Osicka a three-page document (the Pompa report) dated February 7, 1985. The Pompa report contained summaries of the witnesses’ statements. Also, under the heading “Attachments,” the report listed the “Recorded statements], tape[s] and resume[s]” of Gary Wakefield, Johnny Jones, Tony Wakefield and Sedgwick Barry. These recorded statements, or witness statements, are of central importance to this appeal.

During discovery, the defendants made several attempts to obtain the witness statements that were listed as attachments to the Pompa report. The plaintiff’s attorneys agreed to look for them, but their attempts were unsuccessful. The record shows that Tim Osicka left the firm and was succeeded in handling the Wakefield case first by Randall Peters, then by Henry Grass. The plaintiff suggested that the witness statements may have been lost as a result of the change of lawyers handling the file. According to the defendants, the record contains some indication that the contents of the missing witness statements may have shown that the battery was being misused at the time it exploded. Also, the defendants maintain that the record establishes that the allegedly missing witness statements were shown to the plaintiff’s expert witness at a time after the plaintiff claimed they were lost.

A summary of the parties’ theories concerning the accident and the evidence adduced during discovery is necessary to understand the significance of the missing witness statements.

The plaintiff’s theory was that no one was touching the battery at the time it exploded. As stated earlier, the Pompa report contained summaries of the recorded statements that Pompa took from Gary Wakefield and Johnny Jones, both of whom witnessed the occurrence. According to the summaries, Gary Wakefield stated that he owned a 1957 Chevy which was a collector’s item. When the car did not start on the date of the occurrence, he asked Johnny Jones to look under the hood. Wakefield stated that he and Jones “noticed that the cable to the battery was loose,” and that Jones went to get a pair of pliers to tighten the cable. When Jones returned and was about to “hover over the battery,” the battery exploded and injured the plaintiff, who was standing next to Jones. According to the summary, “Mr. [Gary] Wakefield stated that no one touched the battery, it just blew up before Johnny Jones could tighten the cable onto the battery. He could see this because when he was in the car looking the hood was up but he could see what was going on.” According to the summary of Jones’ statement, Jones also stated that he went to get the pliers and while he was standing about a foot from the car, the battery blew up. Again according to the Pompa report, “Mr. Jones also stated that he had not even touched the battery when the battery had blown.”

In his deposition on May 12, 1988, Gary Wakefield stated that prior to the date of the accident, he never had any problem starting the car. When the car would not start on the date of the accident, he checked the battery “to see if the posts was [sic] loose on it, to see if the cables was [sic] loose.” He “jiggled the cables and pushed, you know, wiggled them to see if they was [sic] loose.” Gary Wakefield found that the cables were not loose and decided to take the cables off to check for corrosion. He stated that the plaintiff went into the house for pliers and handed them to Johnny Jones. Gary Wakefield told the plaintiff and Jones to wait while he tried once more to start the car. When he turned the ignition, the battery exploded.

On May 30, 1990, the defendants deposed the plaintiff’s expert witness, Dr. Ralph E. Armington. Armington testified that in his opinion the positive post on the battery contained a manufacturing defect which caused the positive post to break into two pieces. The electrical current flowing between the two pieces produced a spark which ignited an explosive mix of gases around the top of the battery. Defense counsel questioned Armington about notes which Armington had taken in July of 1986. The notes indicated that Armington returned a telephone call from Randall Peters, then stated: “Wakefield says post loose on battery, discussion of two versions, one hr.” When asked the significance of the note, Armington replied that he thought that Peters told him one of the Wakefields said that the post was loose on the battery. As to the “discussion of two versions,” Armington explained that “before this suggestion that the post was loose on the battery I was under the impression that attempts to check the leads for looseness indicated that they were not loose and did not reveal looseness of the post on the battery.”

Defense counsel then questioned Armington concerning six pages of notes which he took on December 28, 1989, two days after the meeting with the plaintiff’s attorney, Henry Grass. The first page began with the notation “J. Pompa, 2-7-85 report, T. Osicka, three pages. Page 1, date of accident, 6-13-84, battery blew up.” The remainder of page 1 lists the four witnesses in the same order in which they appear in the Pompa report. Next to each name are notes consistent with the summaries contained in the Pompa report.

The notes on page 2 are significant because they provide the basis of the trial court’s decision to dismiss the plaintiff’s complaint. The notes state as follows:

“Per G. Wakefield: Noted + post loose (a little) prior to D/A. Starting problems intermittent - remedy wobble + post. What they were doing on D/A.
Per T. Wakefield: Noted + post loose. Wobble developed after purchase from S. Barry.
Per S. Barry: No wobble when new. Bought from Sears Ho-man.”

Armington explained that the symbol “ + ” stood for “positive” and that “D/A” meant “Date of Accident.” It is the defendants’ contention on appeal that the information contained in the above-quoted note was not contained in the Pompa report, in the deposition testimony, or anywhere else in the record and that it could only have come from the “missing” recorded witness statements. Page 3 of the notes contained a summary of information “Per Ennis Wakefield,” as well as Armington’s summary of the “Facts” and “Scenario.” Pages 3 through 6 are notes on the plaintiff’s deposition. Armington’s invoice for December 28, 1989, indicated that he billed four hours for reviewing statements and the plaintiff’s deposition.

Defense counsel asked Armington where he obtained the information on page 2 of his notes. Armington first stated that he believed the notes were taken during a rereading of the Pompa report. Armington then stated, “Or no, the looseness in Gary Wakefield’s purported statement is at the time of the accident, not earlier. I don’t recall where the things on Page 2 came from.” Later in the deposition, when asked whether he had ever seen “tapes or resumes,” Armington answered that the way he took the notes on page 2 suggested that he “saw something” but that he did not have any recollection beyond that.

Shortly after Armington’s deposition, the defendants moved to dismiss the complaint as a discovery sanction pursuant to Supreme Court Rule 219(c). (134 Ill. 2d R. 219(c).) The motion alleged that Armington’s deposition testimony showed that he had been provided with the recorded statements listed as attachments to the Pompa report after the defendants had been told that the tapes and recorded statements could not be located. The motion further alleged that, based on Armington’s notes, it was clear that the missing statements contained “crucial evidence essential to defendants’ ability to properly defend this litigation on the basis of product misuse/abuse and proximate cause.”

After considering the arguments of counsel and the documents before it, the trial court found that Armington in his deposition said things which were unfavorable to the plaintiff’s case and “totally contrary” to the statement summaries contained in the Pompa report. The court then made the following comment:

“But the point is in 1986, you said they existed. And you said then later you couldn’t find them. At the point in time you said you couldn’t find them, you produced them to the expert and now you can’t find them again. And now your expert can’t find them again. I am trying to fashion a remedy in this situation. It is difficult. What is your suggestion?”

When the plaintiff’s attorney failed to suggest a satisfactory remedy, the court specifically found that the defendants had been prejudiced by the plaintiff’s failure to preserve crucial evidence and that in its opinion dismissal of the complaint was warranted. The complaint was then dismissed.

The plaintiff filed a lengthy motion to reconsider supported by the affidavits of Armington, Grass and Peters. Grass and Peters both averred that they had never seen any witness statements other than the summaries contained in the three-page Pompa report and that they had never given any such statements to Armington. Armington stated in his affidavit that he had never “seen, obtained or reviewed the witness statements referenced in the three-page Pompa Report” and that “any and all references in my file notes to my review of any statements pertains to my review of the Pompa Report.” Armington further averred that page 2 of his December 28, 1989, notes was “a summary of information which I believe was conveyed to me orally two days earlier in meeting with H. Grass.”

The trial court denied the motion to reconsider, noting that the statements in Armington’s affidavit “absolutely” and “flatly” contradicted his earlier deposition testimony. The plaintiff then brought this appeal.

On appeal, the plaintiff contends that the trial court abused its discretion in dismissing his complaint as a discovery sanction. Specifically, the plaintiff argues that the evidence did not establish that he intentionally destroyed or concealed the missing witness statements and that any prejudice to the defendant as a result of the missing statements could have been cured by a sanction less drastic than dismissal.

Illinois Supreme Court Rule 219(c) addresses the sanctions a trial court may impose when faced with a party’s failure to comply with the discovery rules. (134 Ill. 2d R. 219(c).) The rule provides that the court may enter a “just” order where a party unreasonably refuses to comply with the discovery order. The rule then outlines a nonexclusive list of sanctions, ranging from the issuance of a stay in proceedings to the dismissal of the noncomplying party’s cause of action with prejudice.

• 2 The imposition of sanctions pursuant to Rule 219(c) is a matter generally left to the discretion of the trial court. (Wilkins v. T. Enterprises, Inc. (1988), 177 Ill. App. 3d 514, 517, 532 N.E.2d 469.) However, the court should impose sanctions with the goal of accomplishing discovery rather than punishing the offending party. (Wilkins, 111 Ill. App. 3d 514, 532 N.E.2d 469.) This court has stated that a “just” order under Rule 219(c) is one which, to the degree possible, ensures both discovery and trial on the merits. (White v. Henrotin Hospital Corp. (1979), 78 Ill. App. 3d 1025, 1028, 398 N.E.2d 24, 26-27.) An order of dismissal with prejudice is a drastic sanction to be invoked only in those cases where the party’s actions show a deliberate, contumacious or unwarranted disregard of the court’s authority. (White, 78 Ill. App. 3d 1025, 398 N.E.2d 24.) Although prejudice to the opposing party is a factor to be considered in determining the appropriateness of a sanction (Harris v. Harris (1990), 196 Ill. App. 3d 815, 823, 555 N.E.2d 10), the dismissal of a complaint should be employed only as a last resort (Wilkins, 177 Ill. App. 3d 514, 532 N.E.2d 469).

The plaintiff contends that the dismissal of his complaint constituted an abuse of discretion because the evidence did not support the trial court’s findings that the witness statements in question were in existence when the defendants requested their production and that the plaintiff showed them to his expert witness after he claimed he could not find them. The plaintiff argues that, at most, the record shows that the witness statements were at one time attached to the Pompa report but were lost as a result of the change of lawyers handling the file.

Armington’s notes of December 28, 1989, state that Gary Wake-field noted that the positive post was loose prior to the date of the accident, that starting problems were intermittent, that the remedy was to wobble the positive post and that this is what was being done on the date of the accident. There is some suggestion that as early as 1986 Tim Osicka’s file contained a note mentioning prior looseness of the positive post. Also, Gary Wakefield’s deposition refers to “jiggling” the cables and post to check for looseness on the date of the accident. We cannot find a basis in the record for Armington’s notes that the car had intermittent starting problems and that the remedy was to wobble the positive post. In his deposition, Armington said that although the way he took the notes suggested that he “saw something,” he had no independent recollection of where he obtained the information. In a subsequent affidavit, Armington averred that the information came from a meeting with the plaintiff’s attorney two days earlier. Henry Grass and Randall Peters both filed affidavits stating that they had never seen any witness statements other than the summaries contained in the three-page Pompa report and that they had never given any such statements to Armington.

The question before us is whether the evidence and the circumstances are sufficient to allow the inference that the information contained in Armington’s notes came from the allegedly missing witness statements. While there is some support for this inference, we believe that a stronger showing of wrongdoing is necessary in order to conclude that the plaintiff was guilty of a “deliberate, contumacious or unwarranted disregard of the court’s authority.” (White v. Henrotin Hospital Corp. (1979), 78 Ill. App. 3d 1025, 1028, 398 N.E.2d 24, 26-27.) As stated earlier, the dismissal of a complaint with prejudice deprives the plaintiff of his day in court and should therefore be employed only as a last resort. Wilkins v. T. Enterprises, Inc. (1988), 177 Ill. App. 3d 514, 517, 532 N.E.2d 469.

The plaintiff in his brief has suggested certain actions short of dismissal which would alleviate the prejudice suffered by the defendants as a result of the missing witness statements. He notes that the defendants would be able to cross-examine Armington about his notes and devise a scenario of product misuse based on those notes. Also, the plaintiff suggests that the defendants could seek a jury instruction on the plaintiff’s failure to produce evidence. Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed. 1992) (IPI) provides:

“If a party to this case has failed to offer evidence within his power to produce, you may infer that the evidence would be adverse to that party if you believe each of the following elements:
1. The evidence was under the control of the party and could have been produced by the exercise of reasonable diligence.
2. The evidence was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have offered the evidence if he believed it to be favorable to him.
4. No reasonable excuse for the failure has been shown.” (IPI CM 3d No. 5.01.)

While not limiting the trial court to any particular sanction or remedy, we agree with the plaintiff’s argument that the cause should be reversed and remanded for the imposition of a sanction less drastic than dismissal of the complaint.

Accordingly, the judgment of the circuit court is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

JOHNSON and LINN, JJ., concur.


text:
    ELK GROVE TOWNSHIP RURAL FIRE PROTECTION DISTRICT et al., Plaintiffs-Appellees, v. THE VILLAGE OF MOUNT PROSPECT, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—1220
    Opinion filed April 10, 1992.

      Jack M. Siegel, and Arthur M. Holtzman, of Pedersen & Houpt, P.C., both of Chicago, for appellant.
    Richard A. Cowen and Lynne R. Ostfeld, both of Cowen, Crowley & Nord, P.C., of Chicago, for appellees.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

On March 28, 1990, the circuit court granted the motion of Elk Grove Township Rural Fire Protection District for summary judgment, declaring the intergovernmental fire service agreement between it and the village of Mount Prospect null and void. The village now appeals the judgment of the trial court.

On January 9, 1989, plaintiff fire protection district (the District) filed a complaint for declaratory judgment challenging the validity of the November 7, 1988, intergovernmental fire service agreement (the Agreement) between themselves and the Village of Mount Prospect (the Village). The Agreement at issue provided that effective May 1, 1990, the Village would take over all fire protection and emergency ambulance services previously being furnished by the District to its residents. The Agreement would be binding on both parties for an initial period of 10 years, after which the District would have successive options to extend it for additional periods of 10 years each. The Agreement also contained the following provisions:

“1. That the District would at all times levy the maximum tax rate allowed by law.
2. That the District would turn over all tax revenues to the Village (less 110% of that amount necessary for the continued operation of the District).
3. That during the term of the Agreement, the District would not oppose any disannexation of territory now in the District. The District also agreed to voluntarily dismiss all pending lawsuits challenging the annexation of property to any municipality.
4. That the District would use its best efforts to sell the real estate it now owns. (The only real estate the District owned was the property on which its fire station stood.)”

Since there were no disputed issues of material fact, the trial court issued its summary judgment as a matter of law. This judgment was based on the pleadings, the attached agreement, and supporting affidavits. Count I of the complaint alleged that the Agreement was void or voidable because it required the public officials of the District to surrender or delegate in advance their governmental authority to exercise their judgment or discretion to decide issues relating to the levy of taxes, defense of litigation and sale of assets. It further stated that the Agreement required an illegal surrender of governmental authority in that it required the levy and turnover of the maximum tax permitted by law without regard to what the Village’s actual cost in providing such services would be. Count II claimed that the Agreement was void or voidable because it results in the District taxing its residents and donating a substantial part of the tax revenues to another governmental unit. It additionally claimed that the village manager of Mount Prospect stated that the approximate cost of providing service would be $250,000 less than the taxes required to be levied against the District. Count III was subsequently dropped by the plaintiffs and is not at issue here. Count IV alleged that the Agreement provided a de facto dissolution of the District in contravention of the statute.

Defendant denied virtually all allegations except admitted that the District was to turn over tax revenues to the Village (count II) and that the District had agreed to refrain from challenging efforts to dis-annex property (count IV). In its motion for summary judgment, filed March 14, 1990, defendant alleged that the Agreement was valid and enforceable and that the District had the power to levy maximum tax rates allowed by law for the duration of the Agreement, had the power to waive its rights to object to annexations during the term of the Agreement, and had the power to sell real estate during the term of the Agreement. It further alleged that the transfer of tax revenues pursuant to the Agreement was lawful consideration for the Agreement and that there was no defacto dissolution of the District.

Based on these pleadings and supporting affidavits and memoranda, the trial judge on March 28, 1990, found the Agreement between the parties void as against the public policy of this State and granted the plaintiffs’ motion for summary judgment. Defendant appeals the judgment of the trial court.

On appeal, the Village maintains that the Agreement between the parties is well supported by constitutional as well as statutory authority. As a basis for this contention, the Village cites article VII, section 10, of the Illinois Constitution (Ill. Const. 1970, art. VII, §10) in addition to the official comments to this section; the Intergovernmental Cooperation Act (Ill. Rev. Stat. 1987, ch. 127, par. 743) and the Fire Protection District Act (Ill. Rev. Stat. 1987, ch. 1271/2, par. 31a). It is the Fire Protection District Act which initially provides for the creation and organization of fire protection districts. This act provides that the board of trustees of a fire protection district has among its powers the power to do the following: pass all necessary ordinances, rules and regulations for the management of the fire protection district; contract with any corporation organized to furnish fire protection services; and accumulate funds for the building, repairing and improving, etc., of fire houses. (Ill. Rev. Stat. 1987, ch. 1271/2, pars. 31a, 26, 34.) The Village argues that this panoply of powers is broadened by article VII, section 10, of the Illinois Constitution, which clearly authorizes municipalities to enter agreements “to obtain or share services and to exercise, combine, or transfer any power or function, in any manner not prohibited by law or by ordinance.” (Ill. Const. 1970, art. VII, § 10(a).) The Intergovernmental Cooperation Act (Ill. Rev. Stat. 1987, ch. 127, par. 743), which is also relied on for its broadening powers, provides in pertinent part: “Any power or powers, privileges or authority exercised or which may be exercised by a public agency of this State may be exercised and enjoyed jointly with any other public agency of this State ***.”

The relied-on statutory and constitutional authorities do encourage governmental cooperation and do grant broad powers to municipalities or governmental units. They do grant each of the parties here the authority to provide fire protection and emergency medical service to its constituents. The cited authorities also provide each of the parties here with the power to contract for fire protection and emergency medical service. They further provide the authority to levy taxes for such purposes. What they do not provide, however, is the authority to execute blanket tax levies for extended periods of time. Illinois case law does not support the proposition that taxes may be levied for needs beyond the ensuing year; rather, it provides that tax levies may be adopted after yearly enactment of a budget and appropriate ordinances. (See Ill. Rev. Stat. 1987, ch. 85, par. 803.) Furthermore, taxes are not to be levied for possible future needs, or with the view towards accumulating funds for future needs. (See People ex rel. Reeves v. Bell (1923), 309 Ill. 387, 141 N.E. 187 (which held that a board of education is without authority to levy a tax for building purposes no part of which is needed for the ensuing year but which is levied to raise a fund for possible future use).) In Mathews v. City of Chicago (1930), 342 Ill. 120, 174 N.E. 35, the court allowed a levy for future purposes when these purposes were for known and limited expenses. Likewise in People ex rel. Harding v. Chicago & Northwestern Ry. Co. (1928), 331 Ill. 544, 163 N.E. 355, the court allowed the county board to levy taxes two years in advance only because it was for the purpose of paying bonds which were to come due at that time. In the case at bar, the Village argues that the contractual provision which allows the District to levy the maximum tax allowable by law for 10 years is not a tax for possible future needs, but is really the agreed-upon consideration for the rendering of fire service to the District. This is a distinction without merit as the tax which is to be levied is clearly for the future fire protection services to be rendered.

Moreover, the Agreement at issue does not correlate the amount of taxes to be raised with the cost of the services to be rendered. This deprives the taxpayers of their right to have separately stated the purposes for which the public money is appropriated or expended. (See People ex rel. Wilson v. Wabash Ry. Co. (1938), 368 Ill. 497, 14 N.E.2d 650.) As the trial court noted, taxation is a practical business which calls for accuracy in estimating funds needed. A tax levied in amounts largely in excess of requirements of a particular purpose during the ensuing year is illegal and void. (See People ex rel. Brenza v. Morrison Hotel Corp. (1954), 4 Ill. 2d 542, 123 N.E.2d 488.) Counsel for the Village argues that the cited authority is not relevant, as the Brenza court actually found that the accumulation of tax funds for libraries was appropriate, and further that the tax at issue is not largely in excess of the requirements of fire protection. Although counsel is correct that the Brenza court approved the accumulation of tax funds for libraries, what he has neglected to note is that the reason the accumulation of tax money was appropriate is because such accumulation was specifically authorized by the library act (Ill. Rev. Stat. 1947, ch. 81, par. 1a), which expressly authorized the accumulation of funds for construction and purchase of libraries. The Brenza court specifically noted the general rights of taxpayers to have separately stated the purposes for which public money is appropriated, and the illegality of excess accumulations. Unlike the library act, there is no specific statutory authority which provides for the accumulation of monies to provide fire protection services. Although at present the Village’s costs to provide fire protection services are $250,000 less than the District’s, the uncertain nature of future costs for the Village to provide this service to the District makes it impossible to tell what the future accumulations might be.

For the above-mentioned reasons, we find that although there is statutory and constitutional authority which would allow the District and the Village to enter into a contract for fire protection services and to levy taxes to pay for such services, this particular 10-year contract and tax levy are unsupported by Illinois law. It is by its nature unresponsive to changed conditions and clearly denies prospective administrations and taxpayers any input into future levies as required by law. It is therefore void ab initio.

Because the taxing provision alone makes the Agreement void, it is unnecessary for us to consider whether the Agreement is also void because it is a de facto dissolution of the District without a referendum, or whether the District may contractually give up its discretion as to whether or not to sell its real estate, as well as its right not to oppose annexations of its territories by other municipalities.

Finally, the Village maintains that the District is estopped from challenging the validity of the fire service agreement. We disagree. Although a municipality may not avoid enforcement of a contract based on some irregularity in the formation of the contract if it has otherwise properly entered into the contract and the other party has substantially performed its obligations, it is equally true that a contract entered into without authority is ultra vires and void. (See McGovern v. City of Chicago (1917), 281 Ill. 264, 118 N.E. 3.) Where the municipality lacked the initial power to form the contract, as it did in the case at bar, then the municipality may avoid the enforcement of the contract as void, even though the other contracting party has performed satisfactorily. See McGovern v. City of Chicago (1917), 281 Ill. 264, 118 N.E. 3. See also Village of Lisle v. Village of Woodridge (1989), 192 Ill. App. 3d 568, 548 N.E.2d 1337.

The judgment of the circuit court granting summary judgment to plaintiff is affirmed.

Affirmed.

LORENZ and MURRAY, JJ., concur.

      Counsel for the Village maintains that Dillon’s rule (that municipalities only possess express and necessarily implied powers) has been abolished with respect to both article VII, section 10, of the Illinois Constitution as well as the Intergovernmental Cooperation Act, thus allowing governmental units all powers which are not explicitly prohibited. While there is conflicting case law regarding the applicability of Dillon’s rule to non-home-rule units, the resolution of this issue is not critical to the interpretation of the agreement at bar.


author: PRESIDING JUSTICE McNULTY

text:
    JENNIFER ORR, Petitioner-Appellant, v. CHARLES ORR, Respondent-Appellee.
    First District (5th Division)
    No. 1—90—3030
    Opinion filed April 10, 1992.

      Robert J. Ralis and Hubbart & Cowell, both of Chicago, for appellant.
    Lucas, Murphy, Kerwin & Coffey, of Chicago, for appellee.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

This action was brought by plaintiff Jennifer Orr to compel her father, Charles Orr, to provide her with certain college expenses pursuant to his property settlement agreement incorporated into the judgment of divorce. The trial court dismissed plaintiff’s action finding that plaintiff lacked standing to sue. Plaintiff appeals.

The marriage of Judy Orr and defendant Charles Orr was dissolved by a judgment of divorce entered by the circuit court of Cook County on June 18, 1970. The judgment incorporated an agreement which stated, in relevant part:

“EDUCATIONAL EXPENSES OF THE CHILDREN
1. Husband desires that the minor children shall attend a college or professional school and he agrees to participate in the financial responsibility for said education. By ‘college and professional school education expenses of the children’ there is meant and included, but not by way of limitation tuition, books, supplies, registration and required fees, board and lod[g]ing, and round trip transportation expenses only between regular school semesters.
2. Husband’s obligation is conditioned upon the following:
a) The children have at that time the desire and aptitude for a college or professional school education;
b) The college education is limited to four consecutive years after graduation from high school, except the time shall be extended in the case of serious illness and the professional school education is limited to two consecutive years after graduation f[r]om high school, except the time shall be extended in case of serious illness or in the event the professional school extends for a required period beyond two years.
c) Husband has the fin[a]ncial ability to pay such college or professional school expenses.”

At the time the judgment for divorce was entered into, Judy and Charles’ daughter, Jennifer, was a minor.

In 1990, Jennifer, then an adult, filed a petition in the circuit court of Cook County against her father in order to enforce her right to certain college expenses pursuant to the settlement agreement incorporated in the judgment for divorce. The trial court dismissed the action, finding that Jennifer, “as the adult child of the parties to this proceeding does not have standing to seek the relief sought in the petition.” This appeal followed.

The sole issue on appeal is whether a child of divorced parents has standing to enforce a provision in her parents’ judgment for divorce that obligates the father to provide for the child’s educational expenses. In the First District Appellate Court case Miller v. Miller (1987), 163 Ill. App. 3d 602, 612, 516 N.E.2d 837, 844, a child of divorced parents brought suit against his father to enforce a settlement agreement incorporated into the divorce decree which obligated the father to pay the child’s college expenses. The father argued that the child lacked standing to enforce the terms of the divorce decree. The court disagreed, finding that the son, as the third party who is the direct beneficiary of the contract, had standing to enforce the obligations for his benefit incurred under that contract. In reaching the decision that the child had standing as a third-party beneficiary, the court found the following three factors controlling: (1) it must be clear from the contract that the parties to the contract intended the third party to benefit; (2) the benefit of the agreement is direct to the third party and the liability of the promisor affirmatively appears from the language of the agreement; and (3) the third party must have relied on the father’s promise in the agreement to pay his college expenses. In Miller the father expressly agreed in the divorce agreement that he would undertake the obligation to pay for the child’s college expenses. The court found that the benefit of the agreement, payment of the son’s college tuition and expenses, was direct to the son, the third person. In addition, the child relied on the father’s promise in the agreement to pay his college expenses by enrolling in and graduating from college. The court therefore held that the child as a direct third-party beneficiary to his parents’ agreement had standing to seek a court order compelling the father to comply with the agreement to pay the son’s college expenses.

Defendant relies on several cases which hold that a child does not have standing to enforce a provision of his parents’ divorce decree. In the third district case Miller v. Miller (1987), 160 Ill. App. 3d 354, 513 N.E.2d 605, the child sought a court order requiring his parents to pay his college expenses. The divorce decree contained no provision requiring either or both parents to fund the child’s college education. The child filed his complaint against his parents pursuant to section 513 of the Illinois Marriage and Dissolution of Marriage Act (Act), which states in pertinent part:

“Support for Non-minor Children and Educational Expenses. *** The Court also may make such provision for the education and maintenance of the child or children, whether of minor or majority age, out of the property and income of either or both of its parents as equity may require, whether application is made therefor before or after such child has, or children have, attained majority age. In making such awards, the court shall consider all relevant factors which shall appear reasonable and necessary, including:
(a) The financial resources of both parents.
(b) The standard of living the child would have enjoyed had the marriage not been dissolved.
(c) The financial resources of the child.” Ill. Rev. Stat. 1985, ch. 40, par. 513.

The court agreed with the parents’ argument that their son lacked standing to bring this action in his own name, finding that the Act creates no right in a child to directly petition the court for benefits which are potentially available under the provisions of the Act. The third district’s Miller differs from the instant case (and is more similar to the first district’s Miller) as it does not contain a settlement agreement and the divorce decree does not mention the child’s college expenses. Accordingly, the plaintiff did not seek to enforce any obligations which flowed to him as a third-party beneficiary.

Defendant next relies on In re Marriage of Garrison (1981), 99 Ill. App. 3d 717, 425 N.E.2d 518, a second district case, wherein the parents’ divorce decree awarded the wife the marital residence but also provided that if the residence is sold, the wife shall set up a trust for the benefit of the parties’ child. When the wife did sell the property, she failed to create a trust for the child’s benefit. The child filed a petition to compel her to do so. The court dismissed the child’s petition, finding that he lacked standing to seek enforcement of the provision of the judgment for divorce to which he was not a party. This case is also distinguishable from ours in light of the fact that the child did not allege a third-party beneficiary contract action, nor submit any evidence to the trial court in support of this theory. Rather, the child only brought his action pursuant to the Illinois Marriage and Dissolution of Marriage Act.

We also find unpersuasive the first district case Kelleher v. Kelleher (1974), 21 Ill. App. 3d 601, 316 N.E.2d 212. In Kelleher, decided under the former divorce act (Ill. Rev. Stat. 1975, ch. 40, par. 1 et seq.), the minor petitioned the court to compel his father to pay past-due child support. The court found no provision in the divorce act authorizing support payments to be made directly to the child and thus concluded that since the child was furnished support by other persons, the child had no standing to sue his father for past-due support. While in Kelleher the child sought to recover past-due support payments, which are benefits that flow directly to the custodial spouse and indirectly to the minor child, the benefits in the instant case flow directly to the adult child.

Accordingly, we decline to follow the holdings in the third district’s Miller case, Garrison and Kelleher and instead follow the reasoning in the first district’s Miller case, that an adult child of divorced parents has standing to enforce the educational provision of the divorce decree on the basis that he or she is a third-party beneficiary. “The rule is well established that where a person makes a promise to another, based upon a valid consideration, for the benefit of a third person, such third person may maintain an action on the contract.” (Joslyn v. Joslyn (1944), 386 Ill. 387, 400, 54 N.E.2d 475, 481.) Moreover, children who are beneficiaries under a contract entered into by their parents have standing to bring suit against their father to compel his compliance with the contract terms. Joslyn, 386 Ill. 387, 54 N.E.2d 475.

We note that in the first district’s Miller, there was present the aggravating factor of fraud on the part of both parents to bargain away the rights of the child. Although there is no allegation of fraud here, we do not find that fact dispositive since the critical inquiry is whether the criteria necessary to confer third-party status have been met. The record here demonstrates that plaintiff is a third-party beneficiary in her parents’ judgment for divorce, thereby giving her standing to petition the court to compel her father to provide for her college expenses. The father’s intent to benefit plaintiff by paying her educational expenses is apparent from the terms of the settlement agreement. The agreement expressly provides that the father will pay the educational expenses of the “children,” and plaintiff is one of the father’s two children born to the- marriage. (See Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp. (1991), 218 Ill. App. 3d 383, 577 N.E.2d 1344 (the contract need not specifically name a third-party beneficiary if it adequately defines a class of individual beneficiaries).) Moreover, the obligation which the defendant undertook was affirmatively stated in the following way: “Husband desires that the minor children shall attend a college or professional school and he agrees to participate in the financial responsibility for said education.” (See Larsen v. Larsen (1984), 126 Ill. App. 3d 1072, 468 N.E.2d 165 (where the obligation to provide for a child’s college expenses is included in a property settlement agreement which is later incorporated in a divorce decree, that obligation is even more definite and obligatory).) We also find that because plaintiff is the child of the divorced parents and is seeking to enforce benefits conferred upon her directly by the settlement agreement, she is a direct beneficiary of her parents’ divorce agreement. Finally, the record provides us with enough evidence from which to conclude that plaintiff relied upon the benefits of the settlement agreement by enrolling in college.

For the reasons set forth above, the order of the circuit court of Cook County dismissing plaintiff’s petition is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

LORENZ and GORDON, JJ., concur.


text:
    DOLORES GABRIEL, Plaintiff-Appellee, v. COLUMBIA NATIONAL BANK OF CHICAGO, Trustee, et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—91—0282
    Opinion filed April 10, 1992.
    Katherine A. Williams, of Chicago, for appellants.
    Frank & Levin, of Chicago, for appellee.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff Dolores Gabriel (Gabriel) brought an action against her sister, defendant Melanie Payonk (Payonk), alleging fraud and seeking to reform a land trust. The land trustee, Columbia National Bank of Chicago, is not a party for the purposes of this appeal. The dispute arose from a land trust document assigning Gabriel’s joint tenancy interest to her mother, Deana Jendricka (Jendricka), and Payonk as joint tenants.

Following are the pertinent facts. Jendricka died on October 19, 1989, survived by two daughters, Payonk and Gabriel. At the time of her death, Jendricka was living in a two-flat building located in Chicago, Illinois, with her daughter Payonk. This building is the subject of litigation initiated by Gabriel in the chancery division of the circuit court of Cook County.

The real estate was originally held in joint tenancy by Jendricka and her late husband, George. When George died, his interest passed to Jendricka as his surviving spouse. According to Gabriel and Payonk, Jendricka deeded the property to them and they deeded the property into the land trust. However, this deed was never recorded, registered or found. Before Jendricka’s death, an assignment of Gabriel’s share of the beneficial interest back to Payonk and Jendricka in joint tenancy was executed. Thus, upon Jendricka’s death, the entire interest passed to Payonk, excluding Gabriel.

Gabriel’s verified complaint alleged that the assignment from Gabriel back to Jendricka and Payonk was forged by Payonk. In response to the verified complaint, Payonk filed a verified answer, and in response to the two paragraphs alleging that Payonk caused or participated in the forgery, Payonk invoked her privilege against self-incrimination as guaranteed by the fifth amendment of the Constitution of the United States and by article I, section 10, of the Illinois Constitution (Ill. Const. 1970, art. I, §10).

Gabriel then moved for judgment on the pleadings maintaining that the invocation of the privilege was equivalent to no answer and was the same as admitting the allegations. This motion was briefed and argued, the trial court granted judgment on the pleadings, and further found that its order was final and appealable pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).

The single issue presented on appeal is whether a defendant’s invocation of the privilege against self-incrimination by verified answer in a civil case in response to a plaintiff’s verified complaint alleging defendant’s forgery is equivalent to an admission of those allegations thereby entitling plaintiff to judgment on the pleadings.

This precise issue has not been addressed by courts of review in this State. However, Federal and State courts of review in other jurisdictions have addressed this issue and Federal and State courts of review in Illinois have considered issues closely related to the one now before this court. For the reasons that follow, we reverse and remand.

The privilege against self-incrimination is available in civil matters as well as criminal matters. (Lefkowitz v. Cunningham (1977), 431 U.S. 801, 53 L. Ed. 2d 1, 97 S. Ct. 2132; McCarthy v. Arndstein (1924), 266 U.S. 34, 69 L. Ed. 158, 45 S. Ct. 16.) The privilege has been held to extend to a civil defendant, even if no criminal action is pending and the risk of criminal prosecution is remote. 10-Dix Build ing Corp. v. McDannel (1985), 134 Ill. App. 3d 664, 480 N.E.2d 1212, citing In re Master Key Litigation (9th Cir. 1974), 507 F.2d 292; see also In re Mid-Atlantic Toyota Antitrust Litigation (D. Md. 1981), 92 F.R.D. 358.

The United States Supreme Court has extended the protection of the testimonial privilege to discovery. (United States v. Kordel (1970), 397 U.S. 1, 25 L. Ed. 2d 1, 90 S. Ct. 763.) A Federal court of appeals has reached a similar conclusion in In re Folding Carton Antitrust Litigation (7th Cir. 1979), 609 F.2d 867, and another has extended it to the pleading stage of a case as well. In re Sterling-Harris Ford, Inc. (7th Cir. 1963), 315 F.2d 277, cert. denied sub nom. Silverstein v. Phelps (1963), 375 U.S. 814, 11 L. Ed. 2d 50, 84 S. Ct. 46.

One of the first cases in which a State court of review extended the protection of the privilege against self-incrimination to an answer in a chancery case was People ex rel. Moll v. Danziger (1927), 238 Mich. 39, 213 N.W. 448. Since this case was decided before the United States Supreme Court had made the fifth amendment privilege against self-incrimination applicable to State court proceedings through the due process clause of the fourteenth amendment, the court applied the protection available through the Michigan Constitution.

Danziger was charged with a bill under a Michigan statute to abate a nuisance caused by the fact that certain premises he owned were being used for the purposes of lewdness, assignation and prostitution. The defendant filed a motion to dismiss on the ground that the statute was unconstitutional for various reasons. One of the reasons set forth was that the bill accused the defendant of the commission of a crime and sought to subject him to a penalty and forfeiture. Therefore, he contended that the statutory requirement compelling him to answer allegations admitting the commission of a crime or suffer a default on the pleadings rendered the act unconstitutional and void.

The trial court agreed with defendant’s position and dismissed the bill. The Michigan Supreme Court, reversing on other grounds, reviewed the writings of legal scholars Pomeroy and Story, which enunciated the principle that a defendant in a discovery suit is never compelled to disclose facts which would tend to incriminate him or expose him to criminal punishment or prosecution. From that principle the court cited with approval the observation of a text writer that “the constitutional inhibition is directed not merely to the giving of oral testimony, but embraces as well the furnishing of evidence by other means than by word of mouth, the divulging, in short, of any fact which the accused has a right to keep secret. *** As defendant in a penal action cannot be required to furnish evidence against himself, he cannot be required to file an answer specifically denying all the allegations of the petition.” Danziger, 238 Mich. at 43, 213 N.W. at 449.

The court in its opinion cited numerous English and American cases supporting this conclusion, among them Robson v. Doyle (1901), 191 Ill. 566, 61 N.E. 435. In Robson, an action at law had been brought to recover a penalty under the Illinois criminal code prohibiting gambling in puts and calls on wheat. Plaintiff filed a bill for discovery to compel defendant to disclose his dealings in puts and calls with others. The suit was not for recovery of anything plaintiff had lost, but was a prosecution in a special action on the case for penalties for violation of the criminal law. The court held that equity will not aid actions penal in nature by compelling a defendant to disclose facts which would expose him to criminal punishment or prosecution, or to disclose any fact that might form a link in the chain of evidence establishing his liability to punishment, penalty or forfeiture. See also Hayes v. Caldwell (1848), 10 Ill. 33, 36 (where the supreme court answered defendant’s argument that the effect of dismissing the writ of error will be to compel him to make discovery as to all allegations of the bill, although he may, by so doing, subject himself to prosecution for a criminal offense: “No such result can follow. He can insist upon his rights in this respect, as well as on his answer by demurrer. He can answer the allegations that have no such tendency, and as to those, the response to which may tend to incriminate him, he may claim his privilege and decline to answer; and the court, if satisfied that he cannot safely make the discovery, will certainly protect him in refusing to do so”).

The court in Danziger cited Robson as a case “in line with the many other holdings that a defendant may not be required by his answer to state facts which will tend to [in]criminate himself.” Danziger, 238 Mich. at 46, 213 N.W. at 450. See Annot. 52 A.L.R. 143 (1950).

Danziger also disapproved of a comment by the Alabama Supreme Court in Ridge v. State ex rel. Tate (1921), 206 Ala. 349, 89 So. 742, that the invocation of the privilege against self-incrimination in a defendant’s answer to a complaint, because it was not a denial of the allegation, would normally result in a default judgment. The court stated: “This we do not approve. The assertion of a constitutional right should not deprive a party of his day in court.” (Danziger, 238 Mich. at 50, 213 N.W. at 452.) In accord are Sunley v. Badler (1942), 33 N.Y.S.2d 642, and John Manners & Co. v. Sohnen (1954), 206 Misc. 845, 134 N.Y.S.2d 162, in which the New York Supreme Court held that a verified pleading is testimony within the scope of the privilege against self-incrimination and excusing a defendant from filing a verified answer to a verified complaint where the party pleading would be privileged from testifying as a witness concerning an allegation or denial in a pleading. See also Galante v. Steel City National Bank (1978), 66 Ill. App. 3d 476, 384 N.E.2d 57 (where counter-defendants refused to answer questions at their depositions, invoking the fifth amendment privilege against self-incrimination, the trial court erred in ordering a default judgment against them because they were entitled to a question-by-question determination as to whether answers could possibly have tended to incriminate them); North River Insurance Co. v. Stefanou (4th Cir. 1987), 831 F.2d 484 (holding that the privilege against self-incrimination can be asserted in a civil case, but the claim must be made as to specific allegations in the complaint so the trial court may ascertain whether the privilege has been properly invoked).

A comment in the 1968 volume of University of Illinois Law Forum provides a synopsis of the scope of the privilege against self-incrimination in civil litigation. It observed that in addition to testimony at trial and statements at pretrial discovery, the pleadings of the parties are protected by the privilege against self-incrimination. However, it noted that problems arise when a defendant asserts the privilege in his answer. Some courts require only that the defendant notify the court of his claim and allow him to answer without responding to the objectionable paragraphs. The unanswered allegations are taken to be a denial. Other courts, on the contrary, have held that the defendant is not relieved of admitting or denying the allegations of the complaint, so silence is deemed an admission. The latter approach substantially impairs the defendant’s privilege against self-incrimination. The commentator opines that the best solution to the problem appears to be that adopted in New York where, by statute, the defendant is allowed to file an unverified answer denying matters to which his privilege pertains. This has the effect of a verified denial and requires plaintiff to prove the allegations in his complaint. Comment, The Privilage Against Self-Incrimination in Civil Litigation, 1968 U. Ill. L. Forum 75, 77-78.

Although, as mentioned previously, the reviewing courts of this State have not addressed the precise issue presented by this case, it was addressed by the United States Court of Appeals for the Seventh Circuit in National Acceptance Co. of America v. Bathalter (7th Cir. 1983), 705 F.2d 924, in construing Federal Rule of Civil Procedure 8. Plaintiff (NAC) brought a civil action against defendant (Bathalter) alleging conspiracy to extend loans to companies in which he had an interest, to extend loans to noncreditworthy companies, and to take kickbacks on the loans. Eight million dollars in damages were requested. Bathalter admitted the jurisdictional allegations and further stated that the subject matter of the complaint had been the basis for at least one grand jury investigation. Exercising his rights under the fifth amendment to the United States Constitution, Bathalter declined to answer those allegations on the ground that his answers might tend to incriminate him. He further requested that his declination have the same effect under Rule 8(d) as a specific denial of the allegations. NAC moved to strike the answer for failure to comply with the pleading requirements of Rules 8(b) and 8(d). In the alternative, NAC moved for judgment on the pleadings because as Bathalter had neither admitted, denied nor pled lack of knowledge pursuant to the requirements of Rule 8(b), those allegations were deemed admitted pursuant to Rule 8(d) leaving no unresolved issues. The district court accepted NAC’s argument, granted it judgment on the pleadings and awarded damages in excess of $8 million.

The Seventh Circuit Court of Appeals conceded that a literal reading of Rule 8 would mandate the result reached by the district court. However, it perceived the issue before it to be whether the literal language of Rule 8 must yield in order to protect Bathalter’s constitutional right to avoid self-incrimination.

The court noted that the Supreme Court had addressed the applicability of the privilege to noncriminal matters at least six times. In Spevack v. Klein (1967), 385 U.S. 511, 17 L. Ed. 2d 574, 87 S. Ct. 625, the Court held that an attorney could not be disbarred as a sanction for invoking the fifth amendment privilege. In its companion case of Garrity v. New Jersey (1967), 385 U.S. 493, 17 L. Ed. 2d 562, 87 S. Ct. 616, the Supreme Court held that a policeman’s testimony at a disciplinary proceeding, compelled by threat of discharge, could not be used in a subsequent criminal proceeding because it constituted a penalty making the assertion of the fifth amendment privilege too costly. The holdings of Spevack and Garrity were reaffirmed in Gardner v. Broderick (1968), 392 U.S. 273, 20 L. Ed. 2d 1082, 88 S. Ct. 1913, and Uniformed Sanitation Men Association v. Commissioner of Sanitation (1968), 392 U.S. 280, 20 L. Ed. 2d 1089, 88 S. Ct. 1917, where the Court held unlawful the discharge of two public employees for refusing to waive the privilege when called to testify during official investigations. Two years later the Supreme Court in Lefkowitz v. Turley (1973), 414 U.S. 70, 38 L. Ed. 2d 274, 94 S. Ct. 316, again affirmed that the threat of adverse consequences cannot be used to compel a waiver of the fifth amendment privilege. The Court declared unconstitutional a State statute that cancelled the existing contracts of two State contractors and barred them from any further State business for five years for their refusal to sign immunity waivers when called before a grand jury investigating charges of bribery and larceny in public contracts. The Court held this coercion to be indistinguishable from the threat of unemployment involved in the Spevack-Garrity line of cases.

The Seventh Circuit Court of Appeals noted in Bathalter that NAC was not in a position to offer immunity if he answered the allegations of the complaint. As a result of asserting the constitutional privilege, Bathalter had an $8.6 million judgment entered without trial or even the evidentiary showing required for summary judgment.

It observed that the only other case in which a Federal court had directly addressed this issue was de Antonio v. Solomon (Mass. 1967), 42 F.R.D. 320. In de Antonio the defendant admitted jurisdiction but refused to respond to the remaining allegations on the ground of fifth amendment privilege. The plaintiff moved for default judgment contending that the defendant failed to comply with the pleading requirements of Rule 8. Although the district court initially ruled for plaintiff (de Antonio v. Solomon (Mass. 1966), 41 F.R.D. 447), it later reconsidered its decision in light of the intervening rulings in Spevack and Garrity. (de Antonio, 42 F.R.D. 320.) Its reconsidered opinion stated:

“Although Rule 8(d), Fed.R.Civ.R, provides that averments in a complaint are admitted when not denied, the defendant’s right to assert his privilege against self-incrimination would be considerably watered down if his failure to explicitly deny averments might result in a summary judgment against him. [Citation.] Henceforth in these proceedings the defendant’s claims of the privilege in his amended answer will be treated as equivalent to specific denials.” de Antonio, 42 F.R.D. at 322.

NAC citing Baxter v. Palmigiano (1976), 425 U.S. 308, 47 L. Ed. 2d 810, 96 S. Ct. 1551, asserted that the judgment entered against Bathalter was entered not because he claimed the privilege but because he failed to respond to the allegations of the complaint and therefore he was deemed to have admitted them. The court of appeals acknowledged that the fifth amendment does not prohibit an adverse inference against civil litigants who refuse to testify in response to probative evidence offered against them. The court determined, however, that this principle was not dispositive because the question in Bathalter was whether this inference is available at the pleading stage. In answering this question negatively the court observed that “a complaint *** is not evidence. [It] contains only averments and claims which, unless admitted, must be proved in order to support a judgment.” (Bathalter, 705 F.2d at 930.) It concluded by stating, “It is our best judgment, in the light of Baxter, that even in a civil case, a judgment imposing liability cannot rest solely upon a privileged refusal to admit or deny at the pleading stage. We conclude that defendant’s claim of privilege should not have been deemed an admission, and that plaintiff should have been put to its proof, either by way of evidentiary support for a motion for summary judgment or at trial.” Bathalter, 705 F.2d at 932. Accord Kramer v. Levitt (1989), 79 Md. App. 575, 558 A.2d 760; State ex rel. Lieberman v. Goldman (Mo. App. 1989), 781 S.W.2d 802.

Gabriel relies on six cases in support of her contention that the trial court was correct in granting her judgment on the pleadings for Payonk’s invocation of her privilege against self-incrimination in her answer to allegations of forgery in the complaint.

None is dispositive of the issue before us. In Douglas v. Daniels (1978), 64 Ill. App. 3d 1022, 382 N.E.2d 90, evidence was suppressed in a criminal case because it was obtained under threat of loss of employment in violation of the privilege against self-incrimination. It was held admissible against a police officer in an administrative proceeding, resulting in his discharge from the force, on the ground that such a proceeding was not a criminal prosecution, and such ancillary use was not a violation of the fifth amendment privilege. This case does not address the issue of whether a defendant in a civil case should suffer a default judgment on the pleadings for invoking the privilege against self-incrimination. Childs v. McCord (D. Md. 1976), 420 F. Supp. 428, similar to Douglas, is also, therefore, not on point.

Similarly, Gabriel’s reliance on Baxter is also misplaced as that case was concerned with adverse inferences that might be drawn by the finder of fact at a prison disciplinary hearing from an inmate’s invocation of the privilege in response to charges of misconduct. This case will not be further commented upon as it was more fully discussed in prior portions of this opinion.

United States v. Robinson (1988), 485 U.S. 25, 99 L. Ed. 2d 23, 108 S. Ct. 864, and Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229, were both criminal cases which discussed the extent to which the government is permitted to comment at trial upon the defendant’s invocation of his fifth amendment privilege to decline to testify in his own behalf. The rulings in these cases are not germane to a determination of the consequences to a defendant in a civil case of invoking the privilege in an answer to a complaint.

The final case cited and relied upon by Gabriel, Kramer v. Levitt (1989), 79 Md. App. 575, 558 A.2d 760, in fact supports Payonk’s position in this appeal. In Kramer, defendant responded to plaintiff’s request for admissions, interrogatories and motions to produce documents by invoking his privilege against self-incrimination. The trial judge permitted the defendant to invoke his privilege but ruled that plaintiff’s requests for admission would be deemed admitted by defendant and read to the jury, which returned a substantial verdict against him.

On appeal, the reviewing court held that the trial judge erred in allowing plaintiff’s requests for admissions to be deemed admitted by defendant and read to the jury. It cited with approval the holding in Bathalter and further observed that Baxter requires that even in a civil case “a judgment imposing liability cannot rest solely upon a privileged refusal to admit or deny at the pleading stage.” Kramer, 79 Md. App. at 580, 558 A.2d at 766.

We deem the ruling in Bathalter and its construction of the pleading requirements of Federal Rule of Civil Procedure 8 read in light of the fifth amendment privilege against self-incrimination to be dispositive. Section 2 — 610 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 610) covering the pleading requirements in answers is very similar in language to that contained in Federal Rule of Civil Procedure 8. Also, the privilege against self-incrimination contained in article I, section 10, of the Illinois Constitution (Ill. Const. 1970, art. I, §10) is similar in import and intended to confer similar protections as those afforded by the fifth amendment to the United States Constitution. Therefore, we hold that it is a violation of Payonk’s State constitutional privilege against self-incrimination to grant judgment on the pleadings for defendant’s invocation of the privilege in her answer to allegations of forgery contained in Gabriel’s complaint. Accordingly, we reverse the judgment of the trial court and remand for further proceedings in accord with the views expressed herein.

Reversed and remanded.

LORENZ and MURRAY, JJ., concur.