text:
    COMMERCIAL TANK SERVICE PIPING, INC., n/k/a Johnston’s Master Service, Inc., by Florence L. Johnston, President, Plaintiff and Counterdefendant-Appellee, v. TROPICANA ENERGY COMPANY, INC., et al., Defendants and Counterplaintiffs-Appellants.
    Third District
    No. 3—90—0011
    Opinion filed March 27, 1991.

      David G. Pribyl and Ronald J. Braida, both of Goldstine & Braida, Ltd., of Summit (Robin S. Kardon, of counsel), for appellant.
    Dorothy Seaborg, of Joliet, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Tropicana Energy Company, Inc., appeals from a judgment in favor of plaintiff Johnston’s Master Service, Inc., in the sum of $78,000 entered in the circuit court of Will County following a jury trial. The matters in dispute arose out of a contract whereby plaintiff was to perform various tank service work to repair and restore to operating condition defendant’s petroleum blending plant in Forestview, Illinois.

The 1985 contract provided that defendant would pay plaintiff the cost of materials and supplies used plus 15% and would pay $30 per man hour of labor, $10 per hour for use of a welding truck, and $3 per hour for a pickup. Plaintiff performed work at defendant’s plant site from July 31, 1985, until January 29, 1986, and defendant paid about $342,500 on invoices submitted by plaintiff.

In July of 1987 plaintiff filed this breach of contract action seeking $82,515 for items billed to defendant and not paid. Defendant’s answer admitted the existence and terms of the contract as alleged by plaintiff but asserted as affirmative defenses that plaintiff had breached the contract by overcharging and by failing to perform as promised. In addition, defendant filed a counterclaim seeking damages for various breaches of contract and overcharges.

The jury was given four verdict forms, one in favor of plaintiff and one in favor of defendant on the complaint and one in favor of each on the counterclaim. At the conclusion of its deliberations, the jury returned a verdict for plaintiff in the sum of $78,000 and presented to the court the appropriate signed verdict form for the action on the complaint. Neither verdict form relating to the counterclaim was signed. At defendant’s request, the trial court polled the jury. Defendant made no objection to the jury’s failure to return a verdict on the counterclaim prior to the entry of judgment, but the issue was included in defendant’s post-trial motion. The trial court denied the post-trial motion.

On appeal defendant seeks to have the judgment reversed on the ground that the verdict on the complaint was invalidated by the failure of the jury to return a verdict on the counterclaim. '

The applicable rule has been stated as follows:

“Where, in a multiple-action trial, the jury returns a verdict on one action or claim that is silent as to the other actions submitted to them, the court will, if the manifest intention of the jury is sufficiently certain, make the verdict conform to that intention and carry their findings into effect as to the other action.” Sesterhenn v. Saxe (1967), 88 Ill. App. 2d 2, 11, 232 N.E.2d 277.

The question here is: What was the intention of the jury? The pleadings disclose that defendant’s affirmative defenses set forth virtually the same conduct on plaintiff’s part as is alleged in defendant’s counterclaim. Defendant alleged as affirmative defenses that plaintiff breached the contract by overcharging for labor, by inflating the number of hours of labor, by failing to install certain electrical lines, by failing to meet the time schedule, by providing faulty and substandard services, and by providing services not requested by defendant. Furthermore, in referring to count II of the complaint, defendant expressly incorporated the allegations of the counterclaim into the answer, and as to the affirmative defenses, defendant said that plaintiff’s wrongful acts were “stated more specifically in the counterclaim.”

The counterclaim itself alleged that plaintiff breached the contract by overcharging for labor by increasing hourly rates and wrongfully inflating the number of hours worked, by installing a concrete pad not requested, by failing to install several lines as requested, by failing to meet the required time schedule, by providing faulty and substandard installation of lines, equipment pumps, and wiring, by installing a flag pole without defendant’s request, by building a taxidermy deer stand and billing defendant, and by billing overtime at time-and-a-half while actually paying employees at regular time rates.

The jury could reasonably have concluded that a finding for plaintiff on the complaint was a finding against defendant on both its affirmative defenses and its counterclaim since the same conduct was alleged in both pleadings. The trial judge’s ruling is consistent with that view. Furthermore, having incorporated the allegations of the counterclaim into its answer, defendant is not in a position to argue that the jury’s intention as to the counterclaim cannot be determined from its verdict rejecting defendant’s defenses to the complaint. We conclude that the trial court did not abuse its discretion in allowing the judgment entered on the verdict to stand.

As a technical matter, the trial court should have entered a judgment for plaintiff on the counterclaim. The absence of any disposition of the counterclaim renders the judgment partial, not final, and thus not appealable. However, in the interest of judicial economy, we have considered the merits of this appeal as though a final judgment had been entered on all pending claims since that was plainly the intent of the trial court in denying defendant’s post-trial motion.

Defendant has also asserted a number of trial errors as grounds for reversal of the judgment entered against it. We have examined each issue, we conclude that the disputed rulings of the trial court did not amount to reversible error, either individually or collectively.

One of the errors asserted involved a motion in limine granted by the trial court barring evidence pertaining to any other claim or lawsuit against defendant. During examination of an electrical contractor who had also worked on the project, plaintiff’s counsel asked if defendant had lived up to its agreement with the witness, and the witness answered “No.” Defendant argues that this question and answer violated the order since in fact the witness had filed suit against defendant. The trial court refused to grant a mistrial on the basis of this question and answer. The witness made no mention of any claim or lawsuit, and any inference to the contrary did not constitute the sort of clear violation of a motion in limine that would so prejudice defendant as to deny it a fair trial. (Smith v. Perlmutter (1986), 145 Ill. App. 3d 783, 496 N.E.2d 358.) Here the trial court’s ruling was not erroneous.

Additionally, defendant contends that the trial court wrongly refused to grant a mistrial when plaintiff introduced religion and insurance into the proceedings. The only mention of religion was extremely remote to the cause of action. Florence Johnston, president of plaintiff corporation, explained that, when renaming the corporation, she selected the name “Johnston’s Master Service, Inc.,” because “the Lord is my master.” This remark did not, in the view of the trial court, prejudice defendant, and we agree.

Also during Florence Johnston’s testimony, she was asked why she changed the name of the corporation, and she responded that it had become difficult to obtain liability insurance under the company’s previous name. The witness was speaking of plaintiff’s insurance, not defendant’s. The testimony was stricken, and the jury instructed that insurance had nothing to do with this lawsuit and that there was no insurance coverage in this case. The trial court denied a motion for mistrial. Under the circumstances, we cannot say that the court abused its discretion.

The other rulings challenged on appeal were all matters well within the discretion of the trial court, and we find that the court did not abuse that discretion as to any ruling.

For the reasons stated, we affirm the judgment entered in the circuit court of Will County in favor of plaintiff.

Affirmed.

McCUSKEY and SLATER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CARLA M. REARDON, Defendant-Appellee.
    Third District
    No. 3—90—0266
    Opinion filed March 28, 1991.
    Erik I. Blanc, State’s Attorney, of Pekin (John X. Breslin and Elizabeth A. Klug, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Frederick A. Bernardi, of Pekin, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Carla M. Reardon, was charged by information with driving with a blood-alcohol content of .10 or more (Ill. Rev. Stat. 1989, ch. 951/2, par. 11—501(a)(1)). Following a hearing, the trial court granted her third motion to suppress. The State appeals the suppression order.

The record shows that the defendant was involved in a serious car accident on February 26, 1988, about 11:45 p.m. The defendant’s father testified that he was at the hospital when the defendant arrived at 12:53 a.m. Mr. Reardon stayed with his daughter at the hospital for the next 36 hours. He noted that Dr. Robert Wolford, the emergency room physician on duty that night, ordered various tests. Dr. Wolford subsequently referred the patient to the trauma unit, where Dr. Fred Braastad assumed her care about 1:40 a.m. At 2 a.m., a hospital technician withdrew blood from the defendant.

Katherine Cagle, a medical records department supervisor, testified that State’s exhibit No. 1 was a copy of the only record possessed by the hospital indicating any of the defendant’s blood alcohol test results. Cagle further testified that she was not familiar with how information was transferred from the lab to the emergency room or how the document in question was compiled. She admitted that there might be some interdepartmental documents that were not sent to her department.

Dr. Robert Wolford testified that he was the emergency room physician on duty when the defendant arrived at the hospital around 1 a.m. He ordered a trauma profile consisting of a battery of tests, including blood tests, performed on her. Dr. Wolford stated that he did not receive the results of those tests because he referred the defendant to the trauma service a few minutes after his initial evaluation. He noted that nursing records showed that Dr. Braastad, the senior trauma unit surgical resident on call at the time, arrived at 1:40 a.m. and assumed the defendant’s care.

Dr. Wolford further testified that State’s exhibit No. 1 looked like a final copy of the defendant’s lab reports. He explained that normally that kind of report was not received in the emergency room. Instead, the emergency room received a disposable copy from the computer printer, which was then attached to the patient’s chart while she was in the emergency room. Once a doctor had reviewed and considered the computer printout copy of a patient’s lab test results, that copy was attached to an emergency department pink copy. It was thereafter kept in the emergency department for two months. The results, but not the exact printout containing them, were ultimately recorded in the patient’s file.

Dr. Wolford further stated that although he did not receive a written result of the defendant’s blood test he believed that Dr. Braastad did. Although it is not entirely clear from the record, it appears that Dr. Wolford noted that State’s exhibit No. 1 showed that the defendant’s blood-alcohol content was .145.

Dr. Fred Braastad stated in his deposition that on. February 27, 1988, he helped treat the defendant. Between midnight and 3 a.m., he did not order any blood-alcohol tests for the defendant. He further stated that he did not receive or consider State’s exhibit No. 1 in his treatment or diagnosis of the defendant.

The evidence depositions of Drs. Robert R. Archer and Jeffrey F. Traína were also introduced into evidence. Both doctors stated that they treated the defendant but did not order blood tests for her. Dr. Archer indicated that he did not receive or consider a blood-alcohol report to assist him in either the diagnosis or treatment of the defendant at the hospital emergency room or prior to her surgery at noon on February 27.

Dr. Traína testified that he considered the information in State’s exhibit No. 1 giving the defendant’s blood count. He further testified, however, that he did not consider the blood-alcohol content information in State’s exhibit No. 1 and was not aware that such a test was conducted.

Based on the foregoing evidence, the trial court granted the defendant’s motion to suppress her blood-alcohol test results. The court ruled that the conditions set forth in section 11 — 501.4(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.4(a)) were not met in this case.

The State thereafter filed a motion to reconsider. At the hearing on the motion, the State submitted Dr. Braastad’s affidavit, in which he indicated that on February 27, 1988, he had received and considered the defendant’s lab results, including her blood-alcohol content, for the purpose of assisting him in her diagnosis and treatment.

Defense counsel argued that the applicable statute required that the physician receive and consider “written” results in order for those results to be admissible. He then pointed out that Dr. Braastad’s affidavit did not indicate whether the results were written. The trial court agreed and granted the defendant’s motion to suppress, noting that it was suppressing only State’s exhibit No. 1 and not any other blood-alcohol reports which might exist but were not produced.

On appeal, the State contends that the trial court erred in granting the defendant’s motion to suppress.

Section 11 — 501.4(a) of the Code provides the following:

“(a) Notwithstanding any other provision of law, the written results of blood alcohol tests conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule only *** when each of the following criteria are met:
(1) the blood alcohol tests were ordered by a physician on duty at the hospital emergency room and were performed in the regular course of providing emergency medical treatment in order to assist the physician in diagnosis or treatment;
(2) the blood alcohol tests were performed by the hospital’s own laboratory; and
(3) the written results of the blood alcohol tests were received and considered by the physician on duty at the hospital emergency room to assist that physician in diagnosis or treatment.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.4(a).

Absent an ambiguity, language in a statute should be given its plain and ordinary meaning. (People v. Algarin (1990), 200 Ill. App. 3d 740, 558 N.E.2d 457.) On review, a trial court’s determination regarding a motion to suppress will not be disturbed unless it was clearly erroneous. People v. Clark, (1982), 92 Ill. 2d 96, 440 N.E.2d 869.

Under the circumstances presented in the instant case, we find that the above-quoted statute is clear and unambiguous. It plainly provides that emergency room blood-alcohol test results are admissible in evidence only when the “written” results were received and considered by the physician on duty in the hospital emergency room. Here, all of the defendant’s treating physicians testified that they did not read the blood-alcohol information contained in State’s exhibit No. 1. Although Dr. Braastad attested that he considered the defendant’s blood-alcohol content, he did not say that he considered written results of State’s exhibit No. 1. Moreover, the written report of the blood-alcohol test was not produced until after the date of the emergency room treatment. Under these circumstances, we find that the State failed to comply with the statute and therefore the test results offered by the State were inadmissible. Accordingly, we hold that the trial court’s determination was not clearly erroneous.

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

Affirmed.

BARRY and SLATER, JJ., concur.


author: JUSTICE BARRY PRESIDING JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES WITVOET, d/b/a J.B. Fruits and Vegetables, Defendant-Appellee.
    Third District
    Nos. 3—90—0170, 3—90—0398 cons.
    Opinion filed April 4, 1991.
    STOUDER, P.J., specially concurring.

      Neil F. Hartigan, Attorney General, of Springfield (Thomas L. Ciecko and Terence M. Madsen, Assistant Attorneys General, of Chicago, of counsel), for the People.
    Sacks & Albrecht, of Kankakee (Adrienne W. Albrecht, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The State of Illinois appeals from the dismissal of eight indictments charging defendant James Witvoet with failing to file retailers’ occupation tax returns and failing to remit taxes collected from customers in 1986 and 1987. The trial court ruled that defendant was immune from prosecution under section 9 of the Retailer’s Occupation Tax Act (Ill. Rev. Stat. 1985, ch. 120, par. 448), and the issue on appeal is whether the trial court correctly granted immunity in this case.

Defendant James Witvoet operates a roadside fruit and vegetable stand on Route 17 in Kankakee, Illinois, where he sells produce, flowers, lawn ornaments, soft drinks, and other items. In the course of investigating defendant’s business, the Illinois Department of Revenue (Department) agents made purchases at the stand and talked with other customers. Subsequently, the Department sent defendant a “Formal Demand for Production of Books and Records,” requesting defendant’s financial records, income tax returns, cash register tapes, bank statements, and other records for the period from January 1, 1984, through December 31, 1986. The demand letter also stated, “Failure to comply with this demand may result in criminal prosecution.”

In response to the demand letter, defendant allowed revenue agents and auditors into his home, where they transcribed information from his records. Thereafter, defendant was indicted for failure to file tax returns for eight separate months and for failure to remit retailers’ occupation taxes collected during those same months.

Defendant filed a motion to dismiss all the charges on the ground that he was immune from prosecution under section 9 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1987, ch. 120, par. 448), which provides in part:

“[N]o person shall be prosecuted or subjected to any criminal penalty for, or on account of, any transaction made or thing concerning which he may testify or produce evidence, documentary or otherwise, before the department or an officer or employee thereof; provided, that such immunity shall extend only to a natural person who, in obedience to a subpoena, gives testimony under oath or produces evidence, documentary or otherwise, under oath.”

Following a hearing, the trial court allowed the motion to dismiss.

The only issue on appeal is whether section 9 grants immunity to defendant here, where he did not produce evidence under oath or in response to a subpoena.

The State contends that defendant’s response to its demand letter was voluntary and that statutory immunity does not extend to this situation, where no subpoena was issued and no evidence produced under oath. Defendant, on the other hand, insists that the grant of immunity must be as broad as the privilege against self-incrimination which is being restricted. In other words, the grant of immunity is as broad as the right of the Department to demand production of financial records. Defendant says that, since the Department could prosecute defendant for a failure to comply with its demand, the demand letter was just as compelling as a subpoena.

In a nearly identical case, People v. Beller (1977), 50 Ill. App. 3d 394, 365 N.E.2d 714, the court ruled in favor of the State. We hold that Better is controlling in the case at bar.

In People v. Beller the defendant responded to a written notice which demanded that he produce various documents and appear at an administrative hearing. He did appear with the documents, and he testified under oath in the administrative proceeding to determine civil tax liability. Subsequently he was indicted for filing fraudulent tax returns, and his claim of immunity under section 9 was granted. The appellate court reversed, stating:

“As we have noted, the plain language of the statute requires the production of documents under compulsion of a subpoena in order for its immunity provision to become effective. The fact that defendant may have testified at the administrative hearing under oath does not mean that he necessarily did so involuntarily. *** The trial court was in error in dismissing the criminal complaints against defendant on the basis of the immunity provided by section 9 [448] of the Act, absent evidence that he was compelled to testify or produce documents by a subpoena.” 50 Ill. App. 3d at 398, 365 N.E.2d at 716.

• 1,2 The court in Better specifically ruled that section 9 does not force a person to produce documents but rather empowers the Department of Revenue to conduct investigations and hearings. The Department has the option of requesting compliance with the statute or of resorting to issuance of a subpoena. Here, as in Better, without the issuance of a subpoena, defendant voluntarily produced the records which he was required to keep and did so without meeting the requirements for statutory immunity from criminal prosecution based on the contents of those records.

Obviously the Department of Revenue will consider many different factors in determining how far it wishes to pursue a civil remedy for tax liability at the expense of a possible criminal prosecution. We are not prepared to stretch the grant of legislative immunity to cover every request for documentation sent by the Department to alleged retailers, even when the request is titled a demand. To do so would emasculate the criminal enforcement provisions of the Revenue Act.

Defendant cites the appellate court decision in People v. Finkelstein (1939), 299 Ill. App. 363, 20 N.E.2d 290, where the trial court granted defendant’s motion to quash the indictment on the ground that defendant was immune from prosecution. The reviewing court affirmed, holding that the Department could not procure evidence under its investigatory powers unless the Act affords the witness immunity protection coexistensive with the immunity provisions of the constitution. In that case, the evidence was produced pursuant to a subpoena.

We do not read the appellate decision in People v. Finkelstein as contradicting our conclusion in the case at bar. The defendant there clearly came within the statutory grant of immunity since he produced documents and testified pursuant to the command of a subpoena. It should be noted that, on appeal to the Illinois Supreme Court, the appellate court decision was reversed on the ground that the trial court lacked authority to grant a motion to quash when a plea in bar was pending. (372 Ill. 186, 23 N.E.2d 34.) The supreme court did not comment upon the merits of the immunity question.

We hold that the circuit court of Kankakee County erred in dismissing the indictments. Defendant was not immune from prosecution under the circumstances of this case. We reverse the order of dismissal and remand for further proceedings.

Reversed and remanded.

SLATER, J., concurs.

PRESIDING JUSTICE STOUDER,

specially concurring:

Although I concur in the result reached, I do so only because of the authority of People v. Beller (1977), 50 Ill. App. 3d 394, 365 N.E.2d 714. I believe there are some weaknesses and deficiencies in the Better case. In Better, the record did not demonstrate that defendant was compelled to testify or produce the company documents, as required by section 9 of the Act in order for its immunity provision to be applicable. (Beller 50 Ill. App. 3d at 397, 365 N.E.2d at 716.) Here, in contrast, the record does contain the “demand” letter sent by the Department of Revenue to the defendant.

Furthermore, the letter in the instant case clearly threatens the defendant with criminal prosecution should he fail to abide by its terms. It seems abundantly clear that when the State, particularly the State agency authorized to collect taxes due, demands your financial records under a threat of criminal prosecution, one might feel “compelled” to surrender one’s records. In addition, this letter implies that, should the defendant comply with the demands of the letter, he will not be subject to prosecution. In practice, however, the defendant essentially protects himself from prosecution by not complying with the letter.

The anomalous nature of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1987, ch. 120, par. 448) should be reviewed by the legislature. It seems that the legislature provided the immunity provision in order to induce voluntary participation by the taxpayer during investigations by the Department. In practice, however, the statute is more of an entrapment device for the Department. In any event, the Better decision, like this statute, has its own unique deficiencies.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD P. COPPULA, Defendant-Appellant.
    Third District
    No. 3—90—0550
    Opinion filed April 5, 1991.

      Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (Jay R Hoffman, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Richard P. Coppula, pled guilty to theft (Ill. Rev. Stat. 1989, ch. 38, par. 16—l(a)) in exchange for the State’s agreement not to seek a term of imprisonment greater than three years. The trial court sentenced him to three years’ imprisonment. The defendant appeals, arguing that his sentence was excessive.

The presentence report indicated that the 38-year-old defendant was an attorney, with one prior conviction for speeding. He had two children and was separated from his wife. He had previously worked as an assistant State’s Attorney and was in private practice when he committed the theft in question.

At the sentencing hearing, Rick Mclntire testified that the defendant had obtained a $7,500 settlement in a suit involving the death of Mclntire’s father. Instead of giving the money to Mclntire, as he was supposed to, the defendant kept it. At one point, he sent Mclntire a check which bounced. Mclntire noted that he hoped to receive restitution.

The defendant’s probation officer and a court services officer each testified that the defendant seldom reported to probation authorities, as was a condition of his personal recognizance release. Further, he had left the State without permission.

The defendant’s wife and his psychiatrist testified that he had mental health problems. His wife stated that one moment he would be very tight with his money and the next moment he would spend it frivolously on expensive, unneeded items. The psychiatrist opined that the defendant suffered from manic depression and noted that the defendant was taking drugs to regulate his disorder. The psychiatrist was not sure whether there was any causal connection between the defendant’s mental illness and the crime he had committed.

The defendant acknowledged that he had made a mistake in spending the settlement money. He noted that he thought the check he wrote to Mclntire would clear the bank. He further noted that he wanted to pay restitution. The defendant claimed that he had received permission from his probation authorities to leave the State. He also claimed that he had reported to the probation office as often as possible under the circumstances of his construction job. At the time of the sentencing hearing, he was training to be a truck driver.

The trial court sentenced the defendant to three years in prison. In doing so, the court found that while the defendant had mental problems, he knew what he was doing when he took the money. The court further found that the most important aggravating factor was that the defendant used his professional reputation as an attorney to commit the offense. The court also noted that the sentence was necessary to deter others. It concluded with the statement that it was necessary to send a message to the public that attorneys who violated their positions of trust would be punished.

On appeal, the defendant argues that the trial court overemphasized the seriousness of the offense and did not adequately consider the mitigating evidence.

Theft of property exceeding $300 in value but not more than $10,000 is a Class 3 felony, punishable by imprisonment from two to five years. (Ill. Rev. Stat. 1989, ch. 38, pars. 16—1(b)(4), 1005—8—1(a)(6).) In determining an appropriate sentence, the defendant’s history, character, and rehabilitative potential, along with the seriousness of the offense, the need to protect society, and the need for deterrence and punishment, must be equally weighed. (People v. Darnell (1981), 94 Ill. App. 3d 830, 419 N.E.2d 384.) When mitigating evidence is before the trial court, it is presumed the court considered the evidence absent some indication, other than the sentence itself, to the contrary. (People v. Sawyer (1985), 139 Ill. App. 3d 383, 487 N.E.2d 662.) Sentencing is a matter of judicial discretion, and absent an abuse of that discretion by the trial court, a sentence may not be altered on review. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

The facts and issue in this case are quite similar to those in People v. Moskowitz (1991), 209 Ill. App. 3d 812. As in Moskowitz, we find no abuse of discretion by the instant trial court. The defendant’s sentence, while at the upper end of the limit agreed to by the State, was only a year beyond the minimum prison term. There is no indication in the record that the court failed to consider the mitigating factors before it. Additionally, the court could properly consider the seriousness of the defendant’s having violated his position of trust as an attorney and the need for deterrence. Under these circumstances, we find that the defendant’s three-year sentence was not excessive.

The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

BARRY and SLATER, JJ., concur.


author: JUSTICE GORMAN PRESIDING JUSTICE STOUDER,

text:
      In re MARRIAGE OF ANDREA L. REEDER, Petitioner-Appellant, and TERRY S. REEDER, Respondent-Appellee.
    Third District
    No. 3—90—0351
    Opinion filed April 5, 1991.

      STOUDER, RJ., dissenting.
    Donovan S. Robertson, of Braud/Warner, Ltd., of Rock Island, for appellant.
    Stewart R. Winstein, of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

The petitioner, Andrea L. Reeder, filed a petition for the dissolution of her marriage to the respondent, Terry S. Reeder, on the grounds of extreme and repeated mental cruelty (Ill. Rev. Stat. 1989, ch. 40, par. 401(a)(l)). The trial court found that Andrea had failed to pr)ve mental cruelty and therefore dismissed the petition. Andrea appeals. We reverse.

At the hearing on the petition, Andrea testified that she and Terry were married in 1980 and had two children. She stated that Terry drank daily and would become drunk about once every three weeks. When drinking, he would be loud and abusive, including using profane language around her and the children.

Andrea noted that in 1984 she and the children had moved out of the marital home due to Terry’s drinking and abuse. As a result, Terry sought alcoholism treatment. For about six months he quit drinking, but thereafter gradually returned to his old habits.

Andrea further testified that Terry had, on three occasions, physically abused her. The first incident took place in 1981 when she was pregnant. In that instance, Terry pushed her and held her wrists while attempting to force her into sex. In 1984, there was a second incident when Terry forcefully demanded sex. In March 1990, the third incident took place. Terry had come home from drinking in a bar and tried to force her to have sex. In an attempt to pull off her pants and underwear, he bruised her. The children had seen him standing naked over her.

Andrea stated that she was afraid of Terry and noted that as a result of his conduct, she had become nervous and upset. At times, it caused her to become physically ill.

Terry testified that he and Andrea got along well when he was employed, but had problems when he was unemployed. He stated that he now drank only occasionally and in moderation. The three occasions that he had tried to force her to have sex had been during times of great stress for him. He stated that he had not been very forceful and that Andrea had purposely screamed to get the children involved. He noted that he and Andrea usually had consensual sex two or three times a week.

The trial court found that the fact that Terry drank daily without getting drunk was not grounds for divorce. It further found that three instances of his attempting to force Andrea to have sex over nine years of marriage did not constitute extreme mental cruelty. The court concluded that the only basis upon which it could find mental cruelty was Terry’s practice of getting drunk once every three weeks. However, it held that while his intoxication was a problem, it did not occur frequently enough to constitute mental cruelty.

Andrea argues on appeal and we agree that the court’s decision was against the manifest weight of the evidence. In particular, she contends that getting drunk every three weeks is frequent and that the court erred in failing to consider the adverse effect Terry’s drinking had on her. She notes her uncontroverted testimony that it caused her to have mental and physical problems.

Mental cruelty is a course of unprovoked, offensive conduct toward one’s spouse which causes embarrassment, humiliation, and anguish so as to render the spouse’s life miserable and unendurable, and which actually affects the spouse’s physical or mental health. (In re Marriage of Visione (1981), 93 Ill. App. 3d 920, 418 Ill. App. 3d 191.) In determining whether the acts charged amount to mental cruelty, the trial court is to primarily consider the effect on the complaining party. (In re Marriage of Semmler (1980), 90 Ill. App. 3d 649, 413 N.E.2d 502.) At the same time, whether certain acts constitute mental cruelty depends upon the total factual background of the marriage, including the circumstances surrounding the acts in question. (Murphy v. Murphy (1975), 31 Ill. App. 3d 321, 334 N.E.2d 779.) The trial court’s decision on whether extreme mental cruelty has been proved will not be overturned unless it is against the manifest weight of the evidence. In re Marriage of Visione (1981), 93 Ill. App. 3d 920, 418 Ill. App. 3d 191.

In the instant case, the trial court accepted the petitioner’s testimony that the respondent consumes alcoholic beverages on a daily basis. The court commented that “a lot of people do that” and the court didn’t think that was grounds for a divorce.

The trial court also adopted the petitioner’s testimony that the respondent becomes intoxicated once every three weeks. The court stated that this was not a “real frequent occurrence” and thus there is an issue as to whether a “real problem” exists.

The trial court further stated that the respondent had “only” attempted to force the petitioner into involuntary sexual activity three times over the past nine years. These attempts were discounted by the court even though they were admitted to by the respondent.

The trial court applied an objective standard rather than the subjective standard as required by Akin v. Akin (1970), 125 Ill. App. 2d 159, 260 N.E.2d 481. The court’s function was not to determine whether the respondent’s conduct would have been cruel to a reasonable person or a person of average sensibilities. The court’s function was to determine whether the respondent’s conduct was, in fact, cruel to the petitioner.

The court accepted the petitioner’s statements regarding the respondent’s daily consumption of alcoholic beverages, his habit of becoming drunk once every three weeks and his attempts to force the petitioner into involuntary sexual activity. Uncontroverted was the petitioner’s testimony that she had become nervous, upset and physically ill as a result of the respondent’s actions.

We hold that the petitioner met her burden of proof in demonstrating that the respondent has been guilty of extreme and repeated mental cruelty. As to the respondent’s contention that the petitioner failed to allege that the conduct of the respondent was unprovoked, a review of the evidence indicates that respondent’s conduct constitutes a course of abusive treatment consisting of voluntary acts on his part that must, by their nature, be the result of his own action without provocation. Accordingly, the decision of the circuit court of Rock Island County is reversed.

Reversed.

BARRY, J., concurs.

PRESIDING JUSTICE STOUDER,

dissenting:

The trial court concluded that, based on the evidence presented, it could not find grounds for granting Andrea’s petition. I find the record in the instant case supports the trial court’s decision, and therefore I dissent. The trial judge is in the best position to assess the credibility of the witnesses and the nature, weight and quality of the evidence in determining the issues of mental cruelty. (In re Marriage of Semmler (1980), 90 Ill. App. 3d 649, 413 N.E.2d 502.) Andrea testified that Terry’s conduct caused her to become nervous, upset and at times physically ill. There was no other evidence presented regarding this issue. The trial court was not required to accept Andrea’s claim that Terry’s conduct caused her to have physical and mental problems. Dissolution of a marriage under section 401(a)(1) (Ill. Rev. Stat. 1989, ch. 40, par. 401(a)(1)) still requires fault on the part of the respondent. Mere allegations of mental cruelty are not enough to establish fault as a matter of law. I would affirm the trial court’s determination that Andrea had failed to present sufficient grounds.


text:
      In re MARRIAGE OF NORMAN E. JENSEN, Petitioner-Appellant, and MARY A. JENSEN, Respondent-Appellee.
    Third District
    No. 3—90—0561
    Opinion filed April 9, 1991.

      John R. Heying, of Keying & Watts, of Naperville, for appellant.
    Lee H. Russell, of Russell & Doheny, of Northlake, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The petitioner, Norman E. Jensen, appeals the denial of his petition to terminate his obligation to pay maintenance to the respondent, Mary A. Jensen.

The record shows that the parties were divorced in 1987. The settlement agreement incorporated in the order of dissolution stated that Norman was to pay “permanent maintenance” of $45 per week. After Mary remarried five months later, Norman filed a petition to terminate maintenance. The petition was based on section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 101 et seq.), which states:

“Unless otherwise agreed by the parties in a written agreement set forth in the judgment ***, the obligation to pay future maintenance is terminated upon *** the remarriage of the party receiving maintenance ***.” Ill. Rev. Stat. 1989, ch. 40, par. 510(c).

The trial court denied the petition, finding that the words “permanent maintenance” meant that the parties had agreed that in the event of Mary’s remarriage, maintenance would not be terminated under section 510(c).

On appeal, Norman argues that the trial court erred. He contends that the settlement agreement did not establish that the parties intended that maintenance payments would continue upon Mary’s remarriage.

We agree with Norman’s argument. If the parties to a settlement agreement intend to limit the automatic termination of certain terms, they must do so in clear language. (See In re Marriage of Sutton (1989), 178 Ill. App. 3d 928, 533 N.E.2d 1125.) Here, the agreement did not specificaUy state that the termination provision of section 510(c) would not apply in the event of Mary’s remarriage. Although the agreement characterized the maintenance as “permanent,” this term may also be used simply to distinguish permanent maintenance from temporary maintenance awarded during the pendency of a dissolution action. (Schoenhard v. Schoenhard (1979), 74 Ill. App. 3d 296, 392 N.E.2d 764.) As such, we find that the agreement was too vague to establish that the parties intended to contravene the general policy of Illinois and provide for continuing maintenance payments after Mary’s remarriage. We therefore reverse the trial court’s denial of the petition and remand this cause for further proceedings consistent with this opinion.

Reversed and remanded.

GORMAN and SLATER, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    THOMAS RILEY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Joseph D. Foreman Company, Appellee).
    Third District (Industrial Commission Division)
    No. 3—89—0713WC
    Opinion filed April 10, 1991.

      Patrick J. McNamara, of Schenk, Duffy, Quinn, McNamara, Phelan, Carey & Ford, of Joliet, for appellant.
    Andrew A. Galich, of Womack & Galich, of Chicago, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

An arbitrator found that the injuries sustained by the petitioner, Thomas Riley, did not arise out of and in the course of his employment with the respondent, Joseph D. Foreman Company. The Industrial Commission (Commission) affirmed the arbitrator’s decision, and the circuit court confirmed the Commission’s decision. The petitioner appeals.

At the hearing before the arbitrator, the petitioner testified that on January 19, 1984, he was working for the respondent selling water and sewer materials. That morning he called on some of his customers and then attended a luncheon meeting of the South Suburb Waterworks Association. As a member, the petitioner was required to pay dues, for which he was reimbursed by the respondent.

The petitioner testified that he had several glasses of wine at the meeting. Although the meeting ended at approximately 2:30 p.m., the petitioner stayed afterwards to visit with some of his customers who were also at the meeting. He stated that he continued drinking after the meeting.

The petitioner left the restaurant about 4:30 p.m. He testified that he planned to deliver a tool to one of his customers on his way home. He noted that the respondent was aware he would be delivering the tool to the customer. Instead, however, he fell asleep at the wheel and hit a utility pole. He was subsequently taken to St. James Hospital, where a blood test revealed he had a blood-alcohol level of .220.

The medical records showed that the petitioner suffered a concussion. He testified that as a result of the accident he suffered pain in his shoulders, neck, and head, which increased when he engaged in any strenuous activity.

The arbitrator, Commission, and circuit court found that the petitioner’s injuries did not arise out of his employment. None of them gave a basis for this finding.

The petitioner argues on appeal that the Commission’s finding that his injuries did not arise out of his employment was against the manifest weight of the evidence. Specifically, he contends that since his intoxication did not prevent him from carrying out his employment responsibilities and since it was undisputed he was engaged in a work activity when the accident occurred, the Commission erred in finding that his injury did not arise out of his employment.

An injury is compensable under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) only if it arises out of and in the course of employment. (Panagos v. Industrial Comm’n (1988), 171 Ill. App. 3d 12, 524 N.E.2d 1018.) For an injury to arise out of one’s employment, it must have an origin in some risk connected with or incidental to the employment so that there is a causal connection between the employment and the injury. (Fire King Oil Co. v. Industrial Comm’n (1976), 62 Ill. 2d 293, 342 N.E.2d 1.) An injury is in the course of employment when it' occurs within the period of employment at a place where the employee can reasonably be expected to be in the performance of his duties and while he is performing those duties or something incidental thereto. Panagos, 171 Ill. App. 3d at 15, 524 N.E.2d at 1020.

For compensation to be denied on the basis of intoxication, the evidence must show that the employee was so intoxicated that the court can say as a matter of law that the injury arose out of his drunken condition and not out of his employment. (Paganelis v. Industrial Comm’n (1989), 132 Ill. 2d 468, 548 N.E.2d 1033; District 41, International Association of Machinists & Aerospace Workers v. Industrial Comm’n (1980), 79 Ill. 2d 544, 404 N.E.2d 787.) Whenever an employee is so drunk and helpless that he can no longer follow his employment, and he is injured in that condition, his injury does not arise out of his employment. However, intoxication which does not incapacitate the employee from following his occupation is not sufficient to defeat the recovery of compensation even though the intoxication may be a contributing cause of his injury. District 141, 79 Ill. 2d at 558, 404 N.E.2d at 792-93.

Resolving disputes in the evidence and drawing reasonable inferences and conclusions therefrom is the responsibility of the Industrial Commission. (County of Cook v. Industrial Comm’n (1988), 177 Ill. App. 3d 264, 532 N.E.2d 280.) The Commission’s findings will not be reversed on appeal unless they are against the manifest weight of the -evidence. Glover v. Industrial Comm’n (1985), 140 Ill. App. 3d 361, 485 N.E.2d 605.

In the instant case, the petitioner testified that he had at least five glasses of wine throughout the afternoon. On his way home from his meeting, he was going to deliver a tool to one of his customers. However, he was unable to do so because he fell asleep at the wheel and struck a utility pole.

Intoxication is not a per se bar to workers’ compensation benefits. However, under the instant circumstances we find that the Commission could reasonably conclude that the petitioner was unable to perform his work properly and therefore was not carrying out his employment responsibilities when he had his one-car accident. Accordingly, the Commission’s conclusion that his injury did not arise out of his employment was not against the manifest weight of the evidence.

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

Affirmed.

McNAMARA, WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.

      The disposition and concurrences were made prior to March 11,1991.


author: JUSTICE GORMAN

text:
    DAVID DAIL, Plaintiff-Appellant, v. JAMES R. ADAMSON, Indiv. and as Agent and Servant of E.K. Williams and Company, Defendant-Appellee.
    Third District
    No. 3—90—0361
    Opinion filed March 4, 1991.
    Rehearing denied May 14, 1991.
    Van Hooreweghe, Fackel & Thaline, of Moline (Francis Van Hooreweghe, of counsel), for appellant.
    John W. Farber, of Geneseo, and Jerry Soper, of Coyle, Gilman & Stengel, of Rock Island, for appellees.
   JUSTICE GORMAN

delivered the opinion of the court:

This action was brought against defendants E.K. Williams and Company and their agent, James R. Adamson, to recover damages sustained by the plaintiff, David Dail, following an audit by the Illinois Department of Revenue. Defendant Adamson counterclaimed against Dail, alleging tortious interference with his business and slander. Following a bench trial, the court rendered a verdict for the plaintiff. As to the counterclaim, the court found no tortious interference with business but did find in favor of Adamson as to the slander count. The plaintiff appeals the amount of damages awarded to him and the propriety of the damages awarded against him as a result of the slander verdict. We reverse in part and affirm in part.

The plaintiff operated a gas station and convenience store known as Dail’s DX Travel Mart. Dail retained E.K. Williams & Company to perform certain accounting services. One of these services was the preparation of sales tax returns for the State of Illinois. On the closing of his business, Dail was audited by the Illinois Department of Revenue for the period of July 1984 through February 1987. Dail was found to owe additional tax of $8,268, a penalty of $426 and interest of $3,691.74. These assessments were made as a result of errors allegedly made by defendant Adamson in the preparation of the returns.

Dail brought suit against the defendants alleging negligence and breach of contract. Dail sought to recover the interest and penalty amounts, as well as the fees paid to the defendants for the incorrect services performed. Defendant Adamson counterclaimed for tortious interference with his business and slander, alleging that the plaintiff had told a third party that Adamson was a “fucking thief.”

The trial court found for the plaintiff and against both defendants. The court allowed judgment for the penalties of $426 and 10% ($420) of the fees paid to E.K. Williams & Company. The 10% was based upon defendant Adamson’s testimony that he spent approximately 10% of the time he worked for Dail on the sales tax returns and that the bulk of his time was spent on profit and loss statements. The court refused to allow as an element of damages the interest assessed by the Department of Revenue, indicating that the plaintiff had the use of the money during the period before the audit. The court felt that it would be speculative to attempt to ascertain the value of the money to the plaintiff and offset it against the interest charged by the Department of Revenue.

On the counterclaims, the court found that Dail did not tortiously interfere with defendant Adamson’s business. The court did find slander per se and awarded $500 in general damages to defendant Adam-son.

Plaintiff raises three issues for our consideration. The plaintiff initially contends that the trial court erred in refusing to allow, as an element of the damages, the $3,691.74 in interest. Citing Carlson v. Collander (1970), 126 Ill. App. 2d 236, 261 N.E.2d 817, and Central Illinois Light Co. v. Stenzel (1963), 44 Ill. App. 2d 388, 195 N.E.2d 207, the plaintiff points out that the underlying concept of all damage awards is to place the injured in the position he would have been in but for the negligence of and/or breach of contract by the defendant. Applying this precept to the case at bar, the plaintiff contends that but for the defendant’s breach of contract and negligence, he would not have been required to pay the interest. Accordingly, the defendant should be required to compensate the plaintiff for that expenditure.

We note that the parties were unable to cite to the trial court or this court an Illinois case directly addressing this issue. Our research has also yielded no Illinois cases on point. We agree with the trial court that the plaintiff’s cited case of Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 413 N.E.2d 47, is of no precedential value. In Sorenson the appellate court refused to address the propriety of awarding interest because the defendant had failed to raise the issue at trial. Sorenson, 90 Ill. App. 3d at 375, 413 N.E.2d at 54.

In a case addressing the issue of a tax preparer’s liability, the supreme court of Alaska stated: “[T]he appropriate measure of damages is the difference between what the [taxpayers] would have owed in any event if the tax returns were properly prepared, and what they owe now because of their accountants’ negligence, plus incidental damages.” Thomas v. Cleary (Alaska 1989), 768 P.2d 1090, 1091-92 n.5.

We believe that this approach properly returns the plaintiff to the position he would have been in but for the negligence of and/or breach by the defendants. In the instant case, the interest paid by the plaintiff to the State is readily ascertainable and flows directly from defendant Adamson’s error. Accordingly, we are of the opinion that the trial court erred in refusing to allow the interest as an element of damages.

The plaintiff next contends that the trial court erred in allowing the return of only 10% of the total accounting fees paid to the defendants. The plaintiff maintains that since the sales tax returns were improperly prepared, the entire work done by the defendants was defective and thus the entire accounting fees should be recovered. We disagree.

The uncontroverted evidence establishes that defendant Adamson spent 10% of his time working for the plaintiff preparing sales tax returns. Accordingly, the trial court is affirmed as to this point.

The plaintiff’s last issue contends that the trial court erred as to the $500 in general damages it assessed with regard to the slander per se count. Citing Bloomfield v. Retail Credit Co. (1973), 14 Ill. App. 3d 158, 302 N.E.2d 88, the plaintiff argues that a reduction in the award to a nominal amount is required.

General damages, without proof of loss or injury, are conclusively presumed from the publication of a slander per se statement. (Lorillard v. Field Enterprises, Inc. (1965), 65 Ill. App. 2d 65, 213 N.E.2d 1.) Bloomfield is distinguishable from the instant case because, in Bloomfield, $500,000 was assessed in compensatory damages. The appellate court found that while nominal damages are presumed, substantial damages are not so presumed and the evidence failed to support the award. (Bloomfield, 14 Ill. App. 3d at 170, 302 N.E.2d at 97.) The award of $500 herein is not substantial and was within the province of the court to award as damages. Accordingly, we reject the plaintiff’s argument and affirm the trial court as to this issue.

The decision of the circuit court of Rock Island County is affirmed in part and reversed in part.

Affirmed in part and reversed in part.

MeCUSKEY and SLATER, JJ., concur.


author: JUSTICE CHAPMAN

text:
    R.E. BATES et al., Plaintiffs-Appellees, v. ETHEL MANSFIELD et al., Defendants-Appellants (Harold Mansfield et al., Defendants-Appellees).
    Fifth District
    No. 5—89—0454
    Opinion filed March 18, 1991.
    Rehearing denied April 19, 1991.

      Peter K. Woody, of Springfield, for appellants.
    A. Ben Mitchell and L. James Hanson, both of Mitchell, Neubauer & Shaw, P.C., of Mt. Vernon, for appellee Vera L. Cummins.
    Ray Fehrenbacher, of Fehrenbacher Law Offices, of Olney, for appellees Ray Fehrenbacher and Peter Morse, Sr.
    Jerry Doyle Miller, of Olney, for other appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff-appellees, R.E. Bates et al., hereinafter referred to as plaintiffs, brought this declaratory judgment action seeking a determination of their oil and gas rights in certain land located in Richland County, Illinois. At the trial of this cause defendants-appellants, Ethyl Mansfield and Gladys Hudson, hereinafter referred to as defendants, asserted that the plaintiffs had no oil and gas rights in the property. On July 5, 1988, the trial court found that plaintiffs did in fact have interests in the oil and gas rights. The court set forth the ownership interests of the parties and ordered an accounting. It is from this judgment that defendants appeal. We affirm.

On February 20, 1967, Clifford L. Schnell and Beatrice Schnell, hereinafter referred to as lessors, executed an oil and gas lease, hereinafter referred to as “the Mansfield lease,” to defendants, covering 40 acres in Richland County, Illinois. The Mansfield lease was for a term of 90 days and so long thereafter as oil or gas was produced from the land. Defendants subsequently sold 25/32 working interest in the Mansfield lease to various investors. Another document, also dated February 20, 1967, which purported to be a contract between the Schnells as lessors and defendants as lessees, provided that defendants would drill a second well within six months from the completion of the first commercial producing well.

In March or April 1967 defendants drilled a well, the Schnell No. 1, on the north 20 acres of the 40-acre tract and began producing oil from this well. Production continued at least through October of 1982. During this time defendants took no action to drill an additional well on the south 20 acres covered by the Mansfield lease.

Sometime prior to March 18, 1981, Clifford Schnell died. On that date Beatrice Schnell executed to J.C. Cummins, “d/b/a National Petroleum Company,” hereinafter referred to as NPC, a second oil and gas lease, hereinafter referred to as the NPC lease, which covered the south 20 acres of the property previously leased to defendants under the Mansfield lease. The lease was for a term of one year and so long thereafter as oil or gas was produced from the land. Lessor warranted title to the south 20 acres.

On October 28, 1981, lessor filed an action against defendants to have the Mansfield lease declared forfeited and released of record as to the undeveloped south 20 acres. While the forfeiture action was pending, NPC drilled a well, the Schnell No. 2, on the south 20 acres, which began producing oil on February 10, 1982, and continued to produce oil at least until January of 1987. NPC assigned working interests in the NPC lease to plaintiffs on March 15,1982.

In August 1984 the trial court in the first suit ruled that the Mansfield lease was not forfeited as it related to the south 20 acres. Its decision was affirmed by this court in Schnell v. Hudson (1986), 141 Ill. App. 3d 617, 490 N.E.2d 1052. However, while the forfeiture action was still pending, the lessor, Beatrice Schnell, obtained signatures from the defendants’ investors, who had purchased 25/32 interest in the 1967 Mansfield lease, on documents entitled “partial release of oil and gas lease.” The documents read as follows:

“PARTIAL RELEASE OF OIL AND GAS LEASE KNOW ALL MEN BY THESE PRESENTS:

That the undersigned hereby release, surrender, and forever quit claim unto the Lessors named therein and their successors in interest any and all rights whatsoever acquired or held under that certain Oil, Gas and Mineral Lease dated February 20, 1967, and recorded in Book 23, at page 340, in the Office of the Recorder of Deeds of Richland County, Illinois, insofar and only insofar as said Lease covers the following described land:

The East Half (E/2) of the Southwest Quarter (SW/4) of the Southeast Quarter (SW/4) of Section Nine (9), Township Three (3) North, Range Nine (9) East, Richland County, Illinois.

The undersigned expressly reserve all their right, title and interest in and to said Lease insofar as the same covers the following described land:

The East Half (E/2) of the Northwest Quarter (NW/4) of the Southeast Quarter (SE/4) of Section Nine (9) Township Three (3) North, Range Nine (9) East, Richland County, Illinois, upon which is located an oil and gas well known as the Schnell No. 1, Union Oil Company Lease No. 2 — 2—594—632—00.

EXECUTED this 23rd day of June, 1982.”

These documents were executed by defendants’ investors between May 1982 and December 1982.

Defendants have made several arguments in support of their contention that the trial court erred in finding that the plaintiffs possess ownership interests in the south 20 acres. The major premise of defendants’ arguments is that they are “bottom” lessees and that plaintiffs are “top” lessees. Defendants assert that plaintiffs, top lessees, could not acquire any interest in the south 20 acres until the Mansfield lease, the bottom lease, was completely terminated.

Defendants cite Rorex v. Karcher (1923), 224 P. 696, and Jennings v. Elliot (1939), 186 Okla. 285, 97 P.2d 67, in support of their positions. These cases hold that while a lessor has the right to execute an oil and gas lease covering land that is already subject to an unexpired lease, the second lessee, or top lessee, does not acquire the right to explore and develop the land until the first lease, the bottom lease, is terminated. (Jennings, 186 Okla. at 288, 97 P.2d at 71; Rorex, 224 P. 696.) There is no dispute over the validity of these holdings. Moreover, our opinion in Schnell makes it clear that NPC had no authority to drill and begin producing oil from the Schnell No. 2 on February 10, 1982. The question which remains to be decided is who is entitled to the oil from the Schnell No. 2. Defendants assert that as bottom lessees they are entitled to 100% of the oil.

We might agree with defendants had they retained the entire interest under the Mansfield lease. However, defendants’ arguments ignore the fact that they sold 25/32 of the working interest of their lease to investors and that these investors subsequently conveyed the 25/32 working interest to the lessor. Defendants argue that the documents executed by their investors failed to transfer present interests to the lessor. We disagree.

The term “working interest,” as used in connection with an oil and gas lease, refers to the portion of the oil and gas that may be produced from the premises after the royalty for the share paid to the landlord is first deducted. (Illinois National Oil & Gas Co. v. Sinclair (1940), 373 Ill. 581, 27 N.E.2d 450.) In Dunbar v. Olson (1953), 349 Ill. App. 308, 110 N.E.2d 664, the court described the relationship which exists between fractional owners of the working interest under a lease:

“A mere tenancy in common, or joint ownership of the property, does not make the owners partners, and the acquisition of interest in the leasehold estate by defendants other than Shaffer made them tenants in common only [citations].” (Dunbar, 349 Ill. App. at 311-12, 110 N.E.2d at 666.)

Tenants in common are entitled to transfer their interests. Fyffe v. Fyffe (1937), 292 Ill. App. 539, 548,11 N.E.2d 857, 861-62.

The key terms contained in the documents executed by defendants’ investors which are set forth above are “release,” “surrender,” and “quit claim.” Black’s Law Dictionary defines these terms as follows:

“Release, n. ***
* * *
The conveyance of a person’s interest or right which he has in a thing to another that has the possession thereof or some estate therein. The relinquishment of some right or benefit to a person who has already some interest in the property, and such interest as qualifies him for receiving or availing himself of the right or benefit so relinquished.”
“Surrender. To give back; yield; render up; restore; and in law, the giving up of an estate to the person who has it in reversion or remainder, so as to merge it in the larger estate.”
“Quitclaim, n. A release or acquittance given to one man by another, in respect of any action that he has or might have against him. Also acquitting or giving up one’s claim or title.” (Black’s Law Dictionary 1159, 1295, 1126 (5th ed. 1979).)

Williams and Myers’ Treatise on Oil and Gas Law defines the terms “surrender” and “release” as follows:

“As applied to the oil and gas lease the terms have been used synonymously to describe the transfer of the lessee’s estate to the lessor.” (H. Williams & C. Myers, Oil & Gas Law, §412.4, n.l (1989).)

We conclude that the execution of the documents set forth above by defendants’ investors transferred all interests which they possessed in the south 20 acres to the lessor. Defendants’ investors were owners of 25/32 of the working interest in the Mansfield lease. Consequently, they were tenants in common with defendants and free to transfer their interests in the south 20 acres to whomever they pleased. The documents which they executed clearly reveal their intent to transfer all of their interest in the south 20 acres to the lessor.

Defendants next contend that a finding that the documents set forth above transferred a present interest to the lessor would be tantamount to a holding that the Mansfield lease was partially can-celled. Defendants assert that there cannot be a partial cancellation of an oil and gas lease. We disagree.

In Pieszchalski v. Oslager (1984), 128 Ill. App. 3d 437, 470 N.E.2d 1083, the successor in interest of the original lessor brought suit to terminate an oil and gas lease. The lessors brought suit against Oslager, the lessee, and Middeke, an assignee of a portion of the working interest under the lease. On the day of trial Middeke asked for and was granted a continuance. However, a default judgment was entered against the lessee, Oslager. The judgment purported to cancel Oslager's interest in the lease. On appeal Oslager argued that the judgment entered against him was void because Middeke was not a party to the judgment. The court quoted Williams and Myers’ Treatise on Oil and Gas Law:

“ ‘When there have been partial assignments by the lessee, the partial assignee is a necessary party defendant in an action to cancel the lease as to his assigned acreage. If he is not joined as a party to an action to cancel the lease, any decree of cancellation therein entered does not affect his interest. ***’ ” (Emphasis added.) (Pieszchalski, 128 Ill. App. 3d at 442, 470 N.E.2d at 1087, quoting 2 R. Williams & C. Myers, Oil & Gas Law §409.4, at 301-02 (1981).)

The appellate court held that Middeke was not a necessary party because the trial court’s decree did not attempt to cancel his interest in the lease and, therefore, the cancellation of the lessee’s interest was proper. Pieszchalski, 128 Ill. App. 3d at 443, 470 N.E.2d at 1087.

Further support for the conclusion that there can be a partial cancellation of a mineral lease can be found in McAnelly v. Graves (1984), 126 Ill. App. 3d 528, 467 N.E.2d 377. In McAnelly the plaintiff was required by the lease to make an advance royalty payment of $35,000. A provision in the lease provided that the lease could be terminated by the lessor if the plaintiff failed to mine within two years. The provision required the lessor to return to the plaintiff $30,000 of the advance payment if he exercised the right to terminate the lease. The lessor’s interest was subsequently divided into two equal portions in a divorce action. One of the lessors, Carlton, sought to cancel the lease under this provision. The appellate court held that Carlton, owning at most a one-half interest in the lease, could not cancel the entire lease as it extended to the property he did not own. However, in so holding the court stated:

“Since the original lessors’ interest in the leased property was divisible and assignable, we see no reason why the lease could not have been terminated as to part of the property while continuing as to the rest.” McAnelly, 126 Ill. App. 3d at 536, 467 N.E.2d at 382.

The cases cited above indicate that there can in fact be a partial cancellation of a mineral lease. When defendants’ investors executed the document set forth above, their interest under the Mansfield lease, 25/32 of the working interest in the south 20 acres, was transferred to the lessor, the holder of the reversionary interest. The lessor, holder of both interests, was free to lease or sell to a third party this 25/32 interest. McAnelly, 126 Ill. App. 3d 528, 467 N.E.2d 377.

Defendants next assert that the plaintiffs cannot be the owners of the 25/32 working interests. In view of our holding that defendants own no interest in the 25/32 working interest, it is unnecessary to address this argument. Any further dispute over the ownership of the 25/32 working interest would be between plaintiffs and the lessor. The lessor was a defendant in this action and has not appealed the trial court’s decision which found that plaintiffs are the owners. Therefore, the decision of the trial court on that issue has become final.

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

Affirmed.

RARICK, P.J., and GOLDENHERSH, J., concur.


author: PRESIDING JUSTICE RARICK

text:
      In re MARRIAGE OF JACK STRUNCK, Petitioner-Appellant and Cross-Appellee, and HELEN S. STRUNCK, Respondent-Appellee and Cross-Appellant.
    Fifth District
    No. 5—90—0409
    Opinion filed March 25, 1991.
    Rehearing denied April 25, 1991.
    J. Mark Maclin, of DuQuoin, for appellant.
    David R. Craig, of Herrin, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Jack Strunck appeals from .the judgment of the circuit court of Franklin County with respect to the distribution of the parties’ marital property and payment of wife’s attorney fees. Helen S. Strunck also appeals the distribution of the parties’ property. We reverse and remand.

Jack and Helen S. Strunck were married for 44 years. Both are now in their sixties. Jack is retired from the military, receiving $1,556 a month in disability retirement pay. Helen is still working, earning $800 a month as a bank teller, but is unsure how much longer she can continue to work because of her health. During the marriage, Jack inherited substantial assets in the form of stock and real estate. He sold the stock and placed the proceeds into a joint account. He later reinvested some of the proceeds in various certificates of deposit (CDs) and bank accounts, many held in his name alone. The trial court awarded Jack $100,000 of the $253,000 proceeds as nonmarital property, the remainder being included in the parties’ marital property. The court also determined Jack’s disability pension had been preempted by the United States Supreme Court from being treated as marital property subject to division by a State court. Consequently, the court awarded Helen some 74% of the parties’ marital property in lieu of maintenance. Jack was also ordered to pay Helen’s attorney fees. Jack argues on appeal the court abused its discretion in dividing the parties’ property and in ordering him to pay Helen’s attorney fees in light of the disproportionate division. Helen contends on cross-appeal she is entitled to share in Jack’s military pension and should be reimbursed or given an allowance for money spent on husband’s non-marital property. We address only one contention at this time, i.e., whether Helen can share in Jack’s military pension.

We initially note that in ruling upon the parties’ assets, the trial court in its memorandum of decision specifically stated:

“The evidence shows that Mr. Strunck receives $1,556.00 per month from a disability pension from his service in the U.S. Army. In a recent case of Mansell vs. Mansell, 104 L Ed [sic] 675, decided May 30, 1989, the United States Supreme Court holds that Congress, under 10 USCS §1408 has preempted states from treating these disability benefits as marital property subject to division by a state court. This decision results in a substantial windfall to Mr. Strunck. Added to Mr. Strunck’s good fortune is the further fact that this pension is exempt from all state, local and federal taxation (10 USC 3101 a), which results in an increase in after-tax income to him. These are all factors that this Court must take into account as a ‘relevant economic circumstance’ under Chapter 40[,] §503(d)(4).”

It is true Mansell v. Mansell (1989), 490 U.S. 581, 104 L. Ed. 2d 675, 109 S. Ct. 2023, does hold that section 1408 of the Uniformed Services Former Spouses’ Protection Act (10 U.S.C. §1408 (1982)) excludes any military retirement pay waived by the retiree in order to receive veterans’ disability benefits from being subject to division by a State court. This exclusion or exemption was limited, however, by an amendment which provides:

“(4) ‘Disposable retired or retainer pay’ means the total monthly retired or retainer pay to which a member is entitled less amounts which—
* * *
(E) in the case of a member entitled to retired pay under chapter 61 of this title [disability retirement pay], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member’s disability on the date when the member was retired (or the date on which the member’s name was placed on the temporary disability retired list)[.]” (10 U.S.C. § 1408(a)(4)(E) (1988), as added by Act of Nov. 14, 1986, Pub. L. 99—661, Div. A, Title VI, Part D, §644(a), 100 Stat. 3887.)

This amendment limits the exemption of military disability retirement pay from State marital property laws in an amount related to the retired person’s percentage of disability on the date of retirement. Consequently, all benefits paid as compensation for disability are the separate property of that individual, while any amounts paid in excess of disability compensation, even though labeled as such, would be part of “disposable retired or retainer pay” which is subject to division as marital property. (See In re Marriage of Marshall (1988), 166 Ill. App. 3d 954, 960, 520 N.E.2d 1214, 1218; see also In re Marriage of Prockish (1988), 168 Ill. App. 3d 739, 742, 521 N.E.2d 1274, 1276; Russell v. Russell (La. App. 1987), 520 So. 2d 435, 438; Evans v. Evans (1988), 75 Md. App. 364, 368, 541 A.2d 648, 650.) While the record is somewhat confusing in this instance as to what portion of Jack’s pension is attributable solely to disability, it would appear that 60% of his pension can be treated as marital property and therefore is subject to division by the trial court. We base this conclusion on an “extract” from the Department of the Army dated October 16, 1969, listing Jack’s physical disability as 40% at the time of retirement. (A letter from the Department of Veteran Affairs dated December 19, 1989, lists Jack’s disability rating as 80%, while this same letter sets forth the percentages of his service-connected conditions as totaling 120%.) Our interpreting section 1408(a)(4)(E) in this manner does not mean, however, that a court must divide that portion of the pension considered to be marital property. (See In re Marriage of Habermehl (1985), 135 Ill. App. 3d 105, 110, 481 N.E.2d 782, 785.) Rather, we are saying the court is not precluded from doing so as the amendment now stands. We recognize the trial court here specifically took into consideration Jack’s pension in apportioning the parties’ marital property, although erroneously classifying it as nonmarital property, believing it had no discretion to do otherwise. While we reiterate the trial court is not compelled to divide the pension between the parties, we do conclude that in this instance the trial court should reconsider its award in light of the present holding with respect to our interpretation of section 1408(a)(4)(E) of the Uniformed Services Former Spouses’ Protection Act.

For the aforementioned reasons, we reverse the judgment of the circuit court of Franklin County and remand for further proceedings consistent with this opinion.

Reversed and remanded.

GOLDENHERSH and CHAPMAN, JJ., concur.


author: JUSTICE HOWERTON

text:
    LEONARD CANNON et al., Plaintiffs-Appellees, v. WHITMAN CORPORATION, Defendant-Appellant (Illinois Central Railroad Company, Defendant).
    Fifth District
    No. 5—89—0062
    Opinion filed March 27, 1991.
    Rehearing denied April 25, 1991.

      John P. Scotellaro, John W. Rotunno, and Carol A. Genis, all of Bell, Boyd & Lloyd, of Chicago, and William A. Schmitt, of Thompson & Mitchell, of Belleville, for appellant.
    Steven M. Wallace, of Carr, Korein, Tillery, Kunin & Montroy, of East St. Louis, and Jerome J. Schlichter, of Schlichter Law Associates, of Fair-view Heights, for appellees.
   JUSTICE HOWERTON

delivered the opinion of the court:

Whitman Corporation appeals the issuance of a mandatory preliminary injunction by which the circuit court ordered Whitman to post an $18 million guarantee of a judgment plaintiffs had obtained in Federal court against Illinois Central Railroad Company — a judgment which had not yet been reduced to a definite amount. We affirm.

Plaintiffs are members of a class that sued the Illinois Central Railroad Company in Federal court in 1981. (Mister v. Illinois Central Gulf R.R. Co. (1987), 832 F.2d 1427.) In that action, plaintiffs alleged that the railroad had violated Federal civil rights laws by racially discriminating in hiring workers; the District Court for the Southern District of Illinois found for the railroad and against the class. The Seventh Circuit Court of Appeals, however, reversed and found the railroad liable, saying, “[i]t is hard to imagine a stronger case short of an announcement of discrimination.” The case was remanded to the district court for determination of damages to be awarded upon the finding of liability entered by the court of appeals. Plaintiffs claimed damages in the sum of $18 million and have moved to increase the addendum to $450 million.

Whitman Corporation, the appellant in the case at bar, is not a party to the Federal case. The railroad was a wholly owned subsidiary of Whitman. After the Federal case was remanded for determination of damages, however, three things happened: (1) the railroad, for the first time in 10 years, declared and paid to Whitman a dividend of $150.8 million; (2) the railroad transferred to Whitman $381.6 million of tax benefits it had coming; and (3) Whitman spun-off the railroad.

In the spin-off, Whitman would deliver all of the outstanding shares of common stock of the railroad to another wholly owned subsidiary, the Illinois Central Transportation Company. Shares of Illinois Central Transportation Company would be distributed to the shareholders of Whitman, one share of Illinois Central Transportation Company stock for five shares of Whitman stock. As a result of the spinoff, Whitman no longer would own stock in either the railroad or Illinois Central Transportation Company. Instead, Whitman’s shareholders would own all of the outstanding stock of Illinois Central Transportation Company which, in turn, would own the railroad.

Plaintiffs sued Whitman in St. Clair County circuit court to enjoin the proposed spin-off as fraudulent to creditors pursuant to “An Act to revise the law in relation to frauds and perjuries” (Act) (Ill. Rev. Stat. 1987, ch. 59, par. 4) and to set aside the dividend and the transfer of the tax benefits. The circuit court refused to enjoin the spin-off, and refused to set aside both the dividend and the transfer of tax benefits. Instead, the circuit court found that the question of insufficiency of property to pay indebtedness under the Act raised sufficient questions of law and fact to justify ordering Whitman to execute and file an $18 million guarantee for the benefit of the plaintiffs to the extent that the railroad is unable to pay that judgment. Whitman appeals from this order.

The circuit court has the discretion to issue or to deny a preliminary injunction, and the exercise of that discretion will not be disturbed on appeal absent an abuse of that discretion. (Jefco Laboratories, Inc. v. Carroo (1985), 136 Ill. App. 3d 793, 483 N.E.2d 999; Kessler v. Continental Casualty Co. (1985), 132 Ill. App. 3d 540, 477 N.E.2d 1287.) Appellate review of the issuance of preliminary injunctions is restricted to determining whether the circuit court properly exercised its broad discretionary powers. Junkunc v. S.J. Advanced Technology & Manufacturing Corp. (1986), 149 Ill. App. 3d 114, 498 N.E.2d 1179; Rao v. St. Elizabeth’s Hospital of the Hospital Sisters of the Third Order of St. Francis (1986), 140 Ill. App. 3d 442, 488 N.E.2d 685.

Two questions must be answered before we can determine whether the circuit court abused its discretion: (1) whether there was sufficient evidence presented from which the circuit court could find that the proposed spin-off might constitute a fraudulent conveyance; and (2) whether the circuit court had the power to order Whitman to post the guarantee.

As to the first question, we are not to determine in this review of the issuance of a preliminary injunction whether the spin-off would constitute a fraudulent conveyance; instead, our review is limited to whether the circuit court’s finding that such a likelihood exists is against the manifest weight of the evidence.

The Illinois Supreme Court, in Gendron v. Chicago & North Western Transportation Co. (1990), 139 Ill. 2d 422, 564 N.E.2d 1207, set out the test to be used in determining whether a challenged conveyance is fraudulent.

“Illinois recognizes two categories of fraudulent conveyances: those which are fraudulent in fact and those which are fraudulent in law. [Citations.] In fraud-in-fact cases a specific intent to ‘disturb, delay, hinder or defraud’ must be proved. [Citations.] In fraud-in-law cases, on the other hand, a conveyance may be presumed fraudulent based on certain circumstances surrounding the conveyance [citation], and intent is immaterial [citation]. In order to establish that a conveyance is fraudulent in law, three elements must be present: (1) there must be a transfer made for no or inadequate consideration; (2) there must be existing or contemplated indebtedness against the transferor; and (3) it must appear that the transferor did not retain sufficient property to pay his indebtedness.” Gendron, 139 Ill. 2d at 437-38, 564 N.E.2d at 1214.

Certain circumstances are so commonly associated with fraud that they have earned the title “badges of fraud” and when present in sufficient number, a prima facia case of fraud may be made. Among these are: (1) an existing indebtedness and pending litigation at the time the funds were transferred; (2) transfer of funds between family members; and (3) conversion of bank deposits into currency. Kaibab Industries, Inc. v. Family Ready Homes, Inc. (1978), 80 Ill. App. 3d 782, 372 N.E.2d 139.

In this case, the railroad had a judgment entered against it, and, although the judgment had not been reduced to an amount certain, it is clear that that judgment will be sizeable. In the face of that liability, the railroad bestowed unprecedented financial benefits upon Whitman. Whitman then prepared the disputed spin-off of the railroad to Whitman’s own shareholders.

In looking at the three factors, set out in Kaibab, it is clear from the manifest weight of the evidence at this stage of the case that the first is present and the other two arguably exist as well. The transfer of money between a parent corporation and its wholly owned subsidiary is akin to a familial transfer. Similarly, when Illinois Central declared a dividend and also transferred the accrued tax benefits to Whitman, the transaction was analogous to converting bank deposits to currency, i.e., turning ledger entries into liquid assets.

Under these circumstances, the circuit court was justified in finding that the plaintiffs had a reasonable likelihood of prevailing on the merits so as to warrant preliminary injunctive relief.

We next turn to whether the circuit court abused its discretion when it ordered Whitman to post the bond. It is undisputed that after a fraudulent conveyance, a creditor can still reach the transferred property. (Ill. Rev. Stat. 1987, ch. 59, par. 4.) The question is whether the creditor must wait until the transfer is complete or whether a creditor may invoke the aid of a court to prevent, what more likely than not, could be a fraudulent conveyance.

Recently, the supreme court has refused to enjoin a proposed sale of a railroad in an action also brought under the Act. (Gendron v. Chicago & North Western Transportation Co. (1990), 139 Ill. 2d 422, 564 N.E.2d 1207.) However, that case is distinguishable from the present situation, because in Gendron the plaintiffs’ claims were based on a collective-bargaining agreement, and thus, the Federal Railway Labor Act preempted application of State law. (45 U.S.C. §§151 to 188 (1982).) Here, the underlying debt arises from a suit for discrimination, a case that is within the unpreempted cognizance of the courts of this State. We feel that this is a claim similar to one for retaliatory discharge, a claim which the supreme court likewise has found not preempted. Gonzalez v. Prestress Engineering Corp. (1986), 115 Ill. 2d 1, 503 N.E.2d 308.

Given that fact, we must determine whether a debtor can be enjoined from disposing of assets, and we hold that such an injunction may be obtained for two reasons.

I

We first note that the Act (Ill. Rev. Stat. 1987, ch. 59, par. 4) has been replaced with the Uniform Fraudulent Transfer Act (Ill. Rev. Stat. 1989, ch. 59, par. 101 et seq.). While the old statute did not specifically mention injunctive relief, the current statute expressly provides for an injunction against the disposition of assets or for any other relief that the circumstances may require. (Ill. Rev. Stat. 1989, ch. 59, pars. 108(a)(3)(A), (a)(3)(C).) The old statute, not the new, was in force when this case arose. We examine whether the new statute is retroactive so as to cover this case.

At the outset, we note that the question whether a statute should be applied retroactively is decided on the basis of whether justice, fairness, and equity require retroactive application to a particular class of persons. (National Can Corp. v. Industrial Comm’n (1986), 148 Ill. App. 3d 1079, 500 N.E.2d 437.) In Farm Credit Bank v. Lynn (1990), 204 Ill. App. 3d 538, 561 N.E.2d 1355, the first Illinois case to examine the new statute, the court held that the statute can be given retroactive effect in order to enjoin the transfer of property. The court noted that whether a statute should be retroactively applied is primarily a question- of legislative intent. (Farm Credit, 204 Ill. App. 3d at 540, 561 N.E.2d at 1357, citing Champaign County Nursing Home v. Retry Roofing, Inc. (1983), 117 Ill. App. 3d 76, 452 N.E.2d 847.) Here, the legislature’s express purpose was to harmonize Illinois law with the laws of other States. Farm Credit, 204 Ill. App. 3d at 540, 561 N.E.2d at 1357; Ill. Rev. Stat. 1989, ch. 59, par. 112.

Other States which have enacted the Uniform Act have held that the statute is remedial in nature and thus can be given retroactive effect. (See, e.g., In re Gherman (S.D. Fla. 1989), 103 B.R. 326, citing City of Orlando v. Desjardins (1986), 493 So. 2d 1027.) We agree that justice would be served by applying this act retroactively.

Under the Uniform Fraudulent Transfer Act, the circuit court has the authority to order any relief it feels necessary under the circumstances. (Ill. Rev. Stat. 1989, ch. 59, par. 108(a)(3)(C).) Therefore, the circuit court was completely within its power to order Whitman to post a guarantee pending the determination of damages.

II

For a second reason, we turn to the common law. The omission of injunctive relief in the old statute did not preclude a party from seeking an injunction under the common law. (Farm Credit Bank (1990), 204 Ill. App. 3d 538, 540, 561 N.E.2d 1355, 1357.) Other States have also held that a creditor can obtain an injunction against the disposition of assets. (See, e.g., Lipskey v. Voloshen (1928), 155 Md. 139, 141 A. 402 (judgment creditor granted injunction); Oliphant v. Moore (1927), 155 Tenn. 359, 293 S.W. 541 (tort creditor granted injunction restraining alleged tortfeasor’s disposition of property).) Accordingly, even under the old statute, the trial court possessed the equitable power to enjoin the spin-off pending a hearing on the merits.

The circuit court, therefore, had the power to enjoin the spin-off. Enjoining the spin-off would have stopped an approximately $1.5 billion transaction dead in its tracks with concomitant tremors in the financial markets, but the circuit court would not have abused its discretion had it entered such an order. Requiring an $18 million guarantee is unquestionably less onerous than what the circuit court could have done. Since the circuit court could have enjoined the spinoff, a fortiori, it could require Whitman to post the guarantee, and in this manner protect the judgment creditors, prevent tremors in the financial markets, while still allowing Whitman to conduct its business.

We cannot agree that by taking measured and limited steps to insure that monies are preserved to pay plaintiffs’ judgment, the court abused its discretion.

Affirmed.

LEWIS and GOLDENHERSH, JJ., concur.