author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY L. BARNARD, Defendant-Appellant.
    Fifth District
    No. 5—89—0350
    Opinion filed February 21, 1991.

      Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    David W. Hauptmann, Special Prosecutor, of Harrisburg (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, and Joseph Roddy, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Gary L. Barnard, appeals from a judgment entered by the circuit court of Saline County on May 26, 1989, following his conviction by a jury of the offense of involuntary manslaughter for the shooting death of Dennis Price. Defendant was initially charged by information with the offense of murder. The jury was instructed on the offenses of murder, voluntary manslaughter and involuntary manslaughter. Defendant raises two issues on appeal: (1) whether the trial court erred in submitting to the jury two State-tendered instructions relating to an initial aggressor’s limited right to use force in self-defense; and (2) whether the trial court erred in refusing to submit to the jury defendant’s tendered instruction on the right to use force in defense of dwelling.

The following evidence was adduced at trial. On the evening of June 15, 1981, Bill Adams was working for the Harrisburg police department as a dispatcher. At approximately 7:45 p.m., he received a telephone call from an individual identifying himself as Gary Barnard. The individual told Adams that the police had better come to his residence because he had just shot Dennis Price. The individual gave his address and asked that an ambulance be sent. Adams dispatched a police unit to the address.

Leon Stull testified that on June 15, 1981, he was chief of the Harrisburg police department. At approximately 7:45 that evening, he received a report over his car radio of a shooting at defendant’s address. Stull proceeded to that address and approached the house. The door to the house was open, and through the screen door Stull could see a body lying on the floor, a person standing in the doorway between the kitchen and living room and a person sitting on the arm of a chair. Stull entered the house and asked who the individual on the floor was. Defendant responded, “Dennis Price.” Stull asked who had shot him and defendant responded, “I shot him. I got tired of them arguing.” Stull asked where the gun was, and defendant handed it to him. The gun contained eight live rounds of ammunition and one spent cartridge, indicating one bullet had been fired from it. At that time, other police officers and an ambulance arrived. Price was transported to the hospital. Defendant and the other individual, identified as Larry Moore, were transported to the police department.

On cross-examination, Stull testified that defendant would have been able to see him approaching the house through the screen door. Stull was in uniform that evening. Defendant made no effort to flee, but was fully cooperative. Stull testified that Larry Moore was extremely drunk. The ambulance attendants indicated that Price still had a weak pulse when they arrived. Defendant did not appear to be intoxicated at all, nor did he appear upset.

Stull did not see any weapons on the person of or near the body of the victim. However, Stull did not search Price’s body for concealed weapons.

Kenneth Childers testified that on the evening of June 15, 1981, he was employed as a police officer for the City of Harrisburg. He interviewed defendant at the police station following the shooting. Defendant told Childers that at approximately 6:45 p.m. on June 15, 1981, Dennis Price, Stanley Jackson and Larry Moore had come to defendant’s home. They had been drinking. After a few minutes, they left to get something else to drink. Defendant was afraid they might return and cause trouble so he went to his bedroom, where he loaded a .22-caliber revolver and placed it on his bed. He then proceeded to watch television. A short time later, Dennis Price and Larry Moore entered defendant’s house. Stanley Jackson remained in the car. For approximately 30 minutes, Price and Moore argued with each other, sometimes quite loudly. Defendant was concerned that they were disturbing his neighbors and asked them to be quiet. Defendant also repeatedly asked and told Price and Moore to leave, but they refused. Defendant then went into his bedroom and got the gun. He came back and again told Price and Moore to leave. Price got up from the chair in which he had been sitting and started walking toward defendant. Defendant pointed the gun at Price and said, “I told you to leave.” Price repeated, “You don’t want to do that. You don’t want to do that.” Price was holding his hands up at approximately the level of his head. When Price had approached within six feet of defendant, defendant shot him once in the chest. Defendant had not seen any weapons on Price, Price did not have his fists clenched like he was going to strike defendant and Price had not verbally threatened defendant. Defendant stated that he shot Price because he was afraid of him. After making this statement, defendant was arrested. Defendant had been cooperative in making the statement.

The Saline County coroner testified that an autopsy was performed on the body of Dennis Price. It was concluded that Price died as a result of shock from massive blood loss due to a gunshot wound to the chest. The autopsy report included a toxicology report which indicated that Price’s blood-alcohol level at the time of death was .268%.

The victim’s father, Ted Price, testified that his son was 5 feet, 9 inches in height and weighed 110 pounds. The victim had no use of his left hand and fingers as a result of an accident. The State rested.

The defense called officer Kenneth Childers to testify. He testified to the victim’s reputation in the community for violence. He had known Price since grade school and knew him quite well. Childers also knew Price in his capacity as a police officer. At times Price displayed violent behavior.

Ted Dowdy testified that on the afternoon of June 15, 1981, Dennis Price visited his home with Larry Moore. Price kept trying to start a fight with Moore. Neither Price nor Moore had any scratches, cuts or bruises at that time. Dowdy was not acquainted with the defendant.

Defendant testified in his own behalf. On June 15, 1981, defendant was living alone in a home owned by his father. At approximately 6:45 that evening, Larry Moore’s car pulled up in front of defendant’s home. Defendant walked out to the car and saw Larry Moore, Dennis Price and Stanley Jackson in the car. They engaged in conversation. Moore, Price and Jackson were “just out drinking.” Defendant testified that Price had a “crazy look on his face *** like he was mad at the world.” Price had a large bloody spot on his arm which appeared to be a recent wound. Price’s shirt was badly torn. Defendant assumed Price had been in a fight. All three men appeared to be intoxicated. The three men left to get another drink. Defendant felt afraid of them. He had read in the newspaper that Price had once made a bomb threat to the police station, and had heard that Price had been involved in a knifing. Defendant had heard rumors about Price which made him fear Price.

Defendant reentered his house. After a few minutes, he became concerned, so he went into his bedroom, where he kept a gun. He loaded the gun and placed it in a cabinet in the headboard of his bed. He closed the door to the cabinet. Defendant had never used the gun before. Defendant then returned to his living room to watch television.

Approximately 15 minutes later, Moore and Price entered his house. Defendant had not invited them in, nor had they asked permission to enter. Price and Moore began to argue with each other. The argument became very belligerent and loud. Defendant was concerned that the neighbors were being disturbed. Price and Moore were using profanity and appeared to be intoxicated. The argument continued on and off for 30 to 40 minutes. At one point, Price got up and approached Moore and became quite loud, as if he wanted to fight with Moore. Price told Moore, “Let’s just draw on it.” Defendant understood this to mean that Price might draw a gun, as Price was known to carry a gun.

Defendant noticed a large bloody spot on Moore’s leg and asked Moore about it. Moore responded that he had hurt his leg while fighting with Price, and threatened to fight with Price again. The wound was fresh, as if it had happened that day.

Defendant was afraid that they might involve him in the argument or fight. At one point, Price ordered defendant to get him a drink of water. Defendant complied.

After a while, defendant told Moore and Price that they would have to leave. They did not respond. Defendant told them again that they would have to leave, and they still did not respond. Defendant went into the bedroom and got the gun. He returned to the living room. Defendant was afraid. While holding the gun, defendant again told Price and Moore to leave. Defendant did not observe any weapon on either Price or Moore; however, he feared that Price might have a gun concealed in his cowboy boots. Defendant had heard that Price often carried a concealed gun. Price got up from the couch where he had been sitting and began walking toward defendant. Price had his hands up near his head, and defendant feared Price was going to grab for him. Price repeated, “You don’t want to do that, man. You don’t want to do that,” in an angry tone of voice. Price continued walking toward defendant. Defendant feared that Price was going to jump on him. When Price got within six feet of defendant, defendant pulled the trigger in an effort to stop Price. Defendant fired only one shot, although the gun was loaded with nine bullets. Defendant did not intend to kill or hurt Price when he fired the gun. Defendant immediately called the police and requested an ambulance for Price.

On cross-examination, defendant testified that when he was in the Army, he had been awarded a marksman’s medal for use of an M-l rifle. Defendant was not aiming the pistol when he shot Price, but was hoping to hit him in the shoulder. Price did not verbally threaten defendant, nor did he have his fists clenched as he walked toward defendant. At no time did defendant attempt to leave the house or telephone for help.

Robert Vernon Cole testified that he was acquainted with Dennis Price. He testified that on one occasion, while at Cole’s home, Price attacked him with an iron poker because Cole had told him to stop using the phone. Price had been telephoning different girls, screaming and cursing at them and using vulgar language.

April Henshaw testified that Price had been married to her mother. April had lived with them. Price would get drunk three or fours days a week. When he had been drinking, Price would become belligerent. He sometimes shot his guns at the ceiling or floor. One time, Price shot the gun in the direction of April. She felt the bullet pass by her head. Price sometimes beat April’s mother.

Defendant introduced an Illinois Department of Public Health toxicology report which indicated Price’s blood-alcohol level was .268% at the time he died. The defense rested. The State offered no rebuttal evidence.

At the instruction conference, defendant tendered his instruction number 13, which is Illinois Pattern Jury Instruction, Criminal, No. 24 — 25.07 (2d ed. 1981) (hereinafter IPI Criminal 2d), on the use of force in defense of dwelling. As tendered, that instruction reads:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to terminate another’s unlawful attack upon a dwelling.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if
the entry is made or attempted in a violent, riotous, or tumultuous manner and he reasonably believes that such force is necessary to prevent an assault upon himself or another then in the dwelling;
or
he reasonably believes that such force is necessary to prevent the commission of a felony in the dwelling.”

The State objected to the instruction, arguing that there was no evidence to indicate an attack upon defendant’s dwelling, or that entry was made in a violent, riotous or tumultuous manner or to commit a felony. Defendant argued that he had acted to prevent Price from committing an aggravated battery, a felony. The court denied the instruction, stating that the instruction was not intended for a situation such as this.

The State tendered its instruction number 13 (IPI Criminal 2d No. 24 — 25.11), which reads:

“A person is not justified in the use of force if he initially provokes the use of force against himself with the intent to use that force as an excuse to inflict bodily harm upon the other person.”

Defendant objected, arguing the instruction was unsupported by the evidence. Defendant argued that he did not provoke the use of force against himself, because there was never any force used until defendant fired the gun. Defendant argued that the shooting was not in retaliation for an act of force by Price, but was to prevent Price from committing that act of force. The State argued that defendant provoked Price by the act of getting the gun. The court agreed with the State, finding that defendant’s act of getting the gun could be interpreted by the jury as an act of provocation.

Finally, the State tendered its instruction number 12 (see IPI Criminal 2d No. 24 — 25.09), which reads:

“A person who initially provokes the use of force against himself is justified in the use of force only if,
(1) the force used against him is so great that he reasonable [sic] believes he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape the danger other than the use of force which is likely to cause death or great bodily harm to the other person.”

The State argued that, because defendant had tendered a self-defense instruction, which the court had agreed to give, there must be some evidence of an act by the victim which the jury could interpret as an act of aggression. Thus, the State argued, it should be allowed to give its instructions numbers 12 and 13. Defendant countered that there was no evidence of the use of force by Price against defendant. The court initially refused to give this instruction, stating that it did not believe the evidence supported the theory that defendant initially provoked the use of force against himself by brandishing the weapon. However, after hearing argument on whether to give State’s instruction number 13, above, the court reconsidered and agreed to give State’s instruction number 12. The court held that the act of brandishing the gun was at least the threat of the use of force by defendant and, if done with the knowledge that Price might react a certain way, justified the giving of State’s instruction number 12.

Closing arguments were heard, the jury was instructed and, after deliberations, the jury returned with verdicts of not guilty of murder, not guilty of voluntary manslaughter and guilty of involuntary manslaughter. The court sentenced defendant to a term of imprisonment of five years. Because defendant had already served that time by the time of trial, he was immediately discharged. Judgment was entered May 26,1989.

Defendant’s first argument on appeal is that, since the evidence at trial did not support a finding that defendant had initially provoked the use of force against himself, the trial court erred in giving State’s instructions numbers 12 and 13 (IPI Criminal 2d Nos. 25 — 24.09, 25— 24.11). Defendant argues that he did not initially provoke the use of force against himself, and that, in any event, he did not do so with the intent to use that force as an excuse to inflict bodily harm on Price. Defendant argues that Price was the initial aggressor and that defendant’s only intent was to have Price leave his home. The trial court found that defendant’s brandishing of the gun might be viewed by the jury as the initial act of aggression provoking the use of force by Price.

Both the State and the defendant are entitled to have the jury instructed on their theories of the case, and an instruction is warranted if there is any evidence, no matter how slight, to support it. (People v. Williams (1983), 115 Ill. App. 3d 276, 279, 450 N.E.2d 851, 854.) Instructions concerning an aggressor’s justifiable use of force may be given if the State presents evidence that the defendant was the aggressor, or even if there is a question as to whether defendant was the initial aggressor. People v. Santiago (1987), 161 Ill. App. 3d 634, 641, 515 N.E.2d 228, 233-34.

In the instant case, there was evidence that defendant pointed a loaded pistol at the victim while the victim was sitting on defendant’s couch. Up to that point in time, Price had not been arguing with defendant, had not threatened defendant in any way and had not used force against defendant. We think this evidence at least raised the question of whether defendant was the initial aggressor and justified the giving of State’s instructions numbers 12 and 13.

Defendant argues, however, that he never used force against Price and that simply pointing a loaded gun at another is not sufficient to qualify defendant as the initial aggressor. It has been held that mere words may be enough to qualify one as an initial aggressor. (People v. Greschia (1870), 53 Ill. 295; People v. Tucker (1988), 176 Ill. App. 3d 209, 217, 530 N.E.2d 1079, 1084.) In People v. Slaughter (1980), 84 Ill. App. 3d 1103, 1112, 405 N.E.2d 1295, 1303, we held that the act of brandishing a knife at another might constitute an assault sufficient to justify giving the instructions. In People v. Ellis (1982), 107 Ill. App. 3d 603, 614, 437 N.E.2d 409, 418, we held that a jury might conclude that the defendant’s act of obtaining a loaded revolver and shooting into a wall to scare the victim provoked the victim to the use of force, thus justifying the giving of the instructions.

The question of whether the use of deadly force was justified is for the jury. (Slaughter, 84 Ill. App. 3d at 1109, 405 N.E.2d at 1301.) We believe that evidence of defendant’s act of pointing a loaded gun at Price was sufficient to at least allow the question of who was the initial aggressor to go to the jury for resolution.

In Ellis, we pointed out that the giving of the instructions complained of here does not erroneously assume that the defendant was the initial aggressor and where, as here, they are given with an additional instruction concerning when a person is justified in the use of force to defend himself, the jury is able to resolve the issues on either hypothesis. (Ellis, 107 Ill. App. 3d at 614, 437 N.E.2d at 418.) We believe that the State in the instant case was entitled to have the jury instructed on its theory that, because defendant was the initial aggressor, his right to use force in self-defense was limited. Furthermore, because the jury was instructed also on defendant’s theory of self-defense, it was able to choose between the conflicting theories and resolve the issue of who was the initial aggressor on either hypothesis.

Defendant also argues that, even if there was sufficient evidence that he was the initial aggressor to warrant the giving of State’s instruction number 12 on an initial aggressor’s use of force, there was no evidence that defendant provoked the use of force against himself with the intent to use it as an excuse to harm Price. Thus, he argues, the trial court erred in giving State’s instruction number 13 on provocation of first force as excuse of retaliation. Again, we disagree.

The evidence showed that defendant readied his handgun before Price returned to defendant’s home and refused to leave. Defendant allowed Price to remain in his home 30 to 40 minutes before asking him to leave. There was testimony that defendant told a police officer that he shot Price because he was tired of him arguing. There was also evidence that defendant knew of Price’s reputation for violence. We think this evidence is sufficient to raise the question of whether defendant provoked the use of force against himself with the intent to use that force as an excuse to inflict harm upon Price. The trial court did not err in allowing the jury to be instructed on the State’s theory that defendant brandished the weapon at Price in order to provoke him into the use of force, so that defendant could then retaliate with deadly force.

Defendant’s next argument is that the trial court erred in refusing his tendered jury instruction on the right to use force in defense of dwelling. Defendant argues that this instruction should have been given because it is meant to cover not only the situation where one is attempting to protect one’s dwelling, but also the situation where the defendant, within the confínes of his dwelling, is protecting himself or others. Defendant argues that Price’s entry into defendant’s home was unlawful because he entered without permission and refused to leave when asked. Moreover, Price threatened to attack defendant by walking towards defendant. The State argues that Price lawfully entered defendant’s home and sat and watched television with defendant for 30 to 40 minutes before defendant asked him to leave. Therefore, the State argues, the defense of defense of dwelling was not available to defendant and the trial court properly refused the instruction.

While very slight evidence upon a given theory justifies giving an instruction, the “very slight evidence” test does establish a minimum standard to be met before instructions are required. (People v. Ishmael (1984), 126 Ill. App. 3d 320, 326, 466 N.E.2d 1334, 1339.) In the instant case, we think the trial court properly found that there was no evidence to support defendant’s theory that he acted in defense of his dwelling. Therefore, the trial court properly refused the instruction.

A person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes the conduct is necessary to prevent or terminate another’s unlawful entry into or attack upon a dwelling, and (1) the entry is made or attempted in a violent, riotous or tumultuous manner and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to, him or another then in the dwelling, or (2) he reasonably believes that such force is necessary to prevent the commission of a felony in the dwelling. (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 2.) We find in the instant case that the defense of defense of dwelling was not available to defendant because Price’s entry to defendant’s home was not unlawful as required by the statute.

While defendant testified that he did not invite Price and Moore into his home, and that they did not ask permission to enter, he did not object when they entered and allowed them to remain for 30 to 40 minutes watching television before he asked them to leave. The evidence further indicates that defendant and Moore had been friends and had, in fact, lived together in defendant’s home for a period of time. Defendant had seen Moore and Price at his home shortly before they returned and entered and did not tell them they were not welcome in his home. In fact, the evidence indicates that defendant fully expected them to return and prepared for their return by loading his handgun. There is no evidence that Price’s entry into defendant’s home was unlawful.

In People v. Chapman (1977), 49 Ill. App. 3d 553, 364 N.E.2d 577, we held that a defendant could not assert the defense of defense of dwelling where she shot her live-in boyfriend while he was beating her. The defendant argued that she acted to prevent the commission of a forcible felony, aggravated battery, in her home. We held that the defense was not applicable because the victim, who shared the apartment with the defendant, was not an intruder.

In People v. Brown (1974), 19 Ill. App. 3d 757, 312 N.E.2d 789, we held that the defense of defense of dwelling is not available where the victim lawfully entered the dwelling by invitation of one of the residents. Similarly, in People v. Miles (1989), 188 Ill. App. 3d 471, 544 N.E.2d 986, we held that the defense was not available where the victim entered the home without invitation or permission, but was welcomed, because the entry was not unlawful.

Finally, in People v. Ellis (1982), 107 Ill. App. 3d 603, 613, 437 N.E.2d 409, 417, we held that, in order to justify the use of force in defense of dwelling, the entry into the dwelling must be unlawful or there must be an attack upon the dwelling. In that case, we declined to hold that a defense-of-dwelling instruction should be given if the entry was lawful but the rightful occupant used force to attempt to evict one who refused to leave.

In Ellis, the defendant and victim had been living together temporarily. On the night of the offense, defendant had asked the victim to move out of the apartment and the victim had refused. A fight ensued, during which the defendant shot and killed the victim. At trial, the court refused defendant’s tendered instruction relating to the defense of defense of dwelling. We affirmed, holding that the uncontroverted evidence established that the victim’s entry into defendant’s apartment was lawful and therefore the defense of defense of dwelling was unavailable and the instruction was properly refused.

We find the instant case to be similar to Ellis and therefore hold that the trial court did not err in refusing defendant’s tendered jury instruction on the right to use force in defense of dwelling.

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

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH

license: Public Domain

text:
    SOUTHERN ILLINOIS MEDICAL BUSINESS ASSOCIATES, PlaintiffAppellee, v. TONY GAMILLO, Defendant-Appellant.
    Fifth District
    No. 5—88—0507
    Opinion filed February 22, 1991.

      Churchill & McDonnell, of Belleville (Allen D. Churchill, of counsel), for appellant.
    Farrell & Long, P.C., of Godfrey (J. Thomas Long and Phillip H. Hamilton, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Tony Camillo, appeals from an order of the circuit court of Madison County holding him in indirect civil contempt for his wilful failure to obey a preliminary injunction issued in favor of plaintiff, Southern Illinois Medical Business Associates (SIMBA), against defendant. In a separate hearing, plaintiff’s reasonable attorney fees were found to be $20,193.79. The circuit court ordered that defendant could purge himself of the contempt by paying the clerk of the circuit court on behalf of plaintiff the $20,193.79.

This is not the first time these parties have been before this court. Initially, this case began when a temporary restraining order was issued at an ex parte hearing against defendant, an ex-employee of plaintiff, on September 24, 1987. The temporary restraining order was initiated by plaintiff after defendant formed his own company, Metroplex, which was in direct competition with plaintiff and which was contrary to an employment contract between the parties. On September 29, 1987, at 11:56 a.m., defendant was served with the temporary restraining order. On October 14, 1987, after a hearing, the circuit court entered a preliminary injunction in favor of plaintiff and against defendant, from which defendant appealed to this court. Thereafter, on March 1, 1988, while the injunction was in effect and before defendant’s appeal on the preliminary injunction was heard by this court, plaintiff filed a contempt petition against defendant for allegedly violating the preliminary injunction. Testimony was taken at a hearing on plaintiff’s contempt petition beginning on March 31, 1988, and resuming on April 19, 1988. On July 19, 1988, the circuit court entered its order finding defendant in contempt for violations of the preliminary injunction. On August 18, 1988, defendant filed his notice of appeal from the contempt order. On October 30, 1989, this court reversed the preliminary injunction order entered by the circuit court on October 14, 1987, finding that plaintiff had no legitimate protectable business interest in its customers. See Southern Illinois Medical Business Associates v. Camillo (1989), 190 Ill. App. 3d 664, 546 N.E.2d 1059.

In this cause, defendant raises three issues: (1) whether our reversal of the preliminary injunction causes the contempt order to fail; (2) whether the order requiring defendant to pay plaintiff $20,193.79 for its attorney fees should be reversed; and (3) whether the contempt order is contrary to the manifest weight of the evidence. We affirm.

All facts necessary for an understanding of the background of this litigation leading up to the preliminary injunction issued on October 14, 1987, are contained in Southern Illinois Medical Business Associates v. Camillo (1989), 190 Ill. App. 3d 664, 546 N.E.2d 1059, and need not be repeated here. The following facts were adduced at the contempt hearing.

The first witness to testify was defendant, who was called as an adverse witness pursuant to section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1102). Defendant acknowledged that he was served with a temporary restraining order on September 29, 1987, and was further enjoined by a preliminary injunction entered on October 14, 1987. Defendant confirmed that his wife, Debbie Camillo, had a consulting company named DLC Consulting. DLC Consulting had a bank account over which defendant had signatory power. Defendant denied violating either the temporary restraining order or the preliminary injunction. He testified that in order to comply with the injunction, he had called the attorney who was handling the incorporation of Metroplex and told the attorney to take his name off the incorporation papers. Defendant denied making telephone calls to any nursing homes or businesses on behalf of Metroplex, even though he admitted that his telephone bill had substantially increased in the months of October and November 1987. Defendant attributed this increase to his wife’s activity on behalf of Metroplex. Defendant’s wife had assumed a position with Metroplex and was paid $800 every two weeks for her services by Dr. Jacks, originally defendant’s partner in Metroplex, but now apparently the sole stockholder in Metroplex. Defendant denied ever drawing blood or performing any technical work on behalf of Metroplex. He denied supervising Metroplex employees. Defendant did admit that he took a Metroplex employee, Kimberly Lane, to Clinical and Biochemical Procedures, Inc., in St. Louis after he had been served with the temporary restraining order. Defendant stated that he took Kim to that office to drop off specimens because she was not sure how to get to the office. Defendant admitted making deposits to the bank on behalf of Metroplex, but claimed he did so only because his wife was tied up with other matters. Defendant denied negotiating a lease on behalf of Metroplex for the Kent Building, where the new Metroplex office is located, at 2105 Vandalia in Collinsville. Defendant admitted that he may have talked to some people from the real estate company about this property and may have even looked at the office space. Defendant also admitted making the first payroll to Metroplex employees in October of 1987 out of his own pocket. Defendant explained that he paid Metroplex employees because Dr. Jacks said Metroplex had no money and defendant felt responsible for their well-being, as he was the one who hired these employees. Defendant paid four employees out of his personal checking account, but was later reimbursed by Dr. Jacks. Defendant also made a $50 personal loan to Randy Cheatham, another employee of Metroplex.

The next witness to testify was Leona Peskar, co-owner of the J.E. Kent & Company Realtors and owner of the Kent Building, where Metroplex is now located. Peskar testified that defendant called her to ask about office space in the Kent Building. Initially defendant called and inquired about the price of the space and later stopped by to examine it. According to Peskar, defendant stated that he wanted “to go on a month-to-month with some type of blood testing thing.” Peskar stated that she showed defendant the office space and received a deposit on behalf of Metroplex on October 23, 1987. Peskar was acquainted with defendant because she had been his agent on his residence. Finally, Peskar testified that she had not seen defendant on the premises since the deposit was made.

The next witness was Trina Barr, age 26, married, and an ex-employee of SIMBA and Metroplex. Barr testified that she began work for SIMBA in January 1986, and worked through September 1986, when she quit work to have a baby. She testified that she went back to work for SIMBA in September 1987, at defendant’s request. Defendant had originally hired her at SIMBA to work as a phlebotomist and courier. While she was working at SIMBA, defendant told her of his plans to open Metroplex and asked her to join his staff. Barr agreed to work at Metroplex and signed a letter of resignation to SIMBA written by defendant on her behalf. Barr stated that she began to work for Metroplex on October 8, 1987. On that date, Metroplex was being operated out of defendant’s garage. Barr arrived at 8:30 a.m. At that time, four other people were also there — defendant, Kimberly Lane, Theresa Kim-ball, and Randy Cheatham. According to Barr, these four were getting supplies set up and were spinning down blood that had been received earlier in the morning. Defendant told Barr that he had taken the supplies in his garage from SIMBA. Barr testified that the supplies allegedly taken by defendant from SIMBA included tubes, tape, needles, alcohol, and cotton. Barr testified that Metroplex operated out of defendant’s garage for approximately one month. According to Barr, defendant would call her between 8 p.m. and 10 p.m. each evening to tell her what nursing home she should go to the next day in order to draw patients’ blood samples. After she and the other phlebotomists retrieved the samples, they would return to defendant’s garage to spin down the blood in order to get it ready to take to a reference lab for testing. Defendant would then pass out reports of previously tested blood that needed to be taken back to the appropriate nursing homes. Barr stated she always received instructions from defendant, and in her mind, defendant was the boss. Barr met Dr. Jacks on only one occasion, when she went to his office to do blood work, but she never took instructions from Dr. Jacks. Barr testified that she took no instructions from Debbie Gamillo. Barr stated that during October, she was paid by defendant. Defendant would either leave the check in her mailbox or have another Metroplex employee drop it off to her. After Metroplex moved its operation from defendant’s garage to the Kent Building in November 1987, Barr assumed the positions of both phlebotomist and receptionist. Barr would go to nursing homes from approximately 5 a.m. to 8 or 8:30 a.m., and then return to the Metroplex office. Upon arrival, she would call defendant’s home to let him know that she was in the office so that calls to Metroplex could be taken there. According to Barr, when no one was in the Metroplex office, calls to Metroplex were forwarded to defendant’s home phone through a system of call-forwarding. Barr also testified that defendant had instructed her that if anyone called the office for him, she was to tell the caller that she did not know where defendant was or how to contact him. After she told the caller this, she was to beep defendant on his pager and let him know who had called him. She was also instructed to tell people who came to the office looking for him that he was not in the office and she did not know when he would be in. According to Barr, defendant instructed her to do these things because he had informed her that SIMBA had won the injunction, and he could not get caught at the Metroplex office. Barr testified that during the time she worked for Metroplex at its location in the Kent Building, from November to December 1987, defendant would come to the office approximately two to three times per week to deliver various items and just see how things were going. During this time, Barr did not see Dr. Jacks. She testified that Debbie Gamillo did call on “a couple” of occasions and give her instructions. Barr testified that defendant instructed clients to pay at the Metroplex office. Barr would charge them rates based upon defendant’s instructions to her. Additionally, Barr stated that defendant drew blood at the Kent Building on one occasion for a nurse from a nursing home in Troy. The nurse was not charged for this service because she was an employee. Barr testified that she quit her job with Metroplex in November 1987, for three reasons: (1) because she was having trouble with baby-sitters, (2) because defendant made sexual advances toward her, and (3) because she did not feel right about working there after SIMBA had won the injunction. Barr also testified that she was friends with Kimberly Lane, another Metroplex employee. One evening Lane called defendant and then Barr talked to him on the telephone and invited him to join them for a drink. Barr stated that after she had quit her job with Metroplex, she returned for a Christmas party. At this time, Barr told the new Metroplex receptionist, Vickie Krawczyk, that she was pregnant with defendant’s child. Barr testified that she did this as a joke and within five minutes told the receptionist that it was only a joke.

Barr testified that she asked defendant for a letter of reference when she quit her job at Metroplex. Although Barr was not seeking employment at that time, she felt it might be beneficial to have such a letter in the future. Barr stated that she asked defendant for the letter instead of Dr. Jacks because she really did not know Dr. Jacks and had always considered defendant her boss. Defendant told her he would give her the letter within a week, but she never received one. She did receive a letter which had been written by Vickie Krawczyk, who had signed Dr. Jacks’ name at the bottom. Barr did not accept this letter. Barr stated that she became involved in this litigation when she called Arna Trotter, SIMBA’s office manager, to apologize for the way in which she had left SIMBA and to tell Arna that she had taken some SIMBA equipment with her when she left. Barr explained that she did this to clear her conscience. She stated that she then met Arna for lunch and discussed Metroplex’s operation. At Ama’s request, Barr met with SIMBA’s attorneys. Barr testified that she has been promised nothing for her testimony. Finally, Barr testified that defendant had called her at home approximately three to four weeks before this hearing and had stated:

“I would like to thank you for all the aggravation you’ve caused me. I want you to know if I ever see you out again I am not your friend and I don’t want to speak to you and I think you’re a bitch and a slut. I’ll get you.”

Barr reported this threat to Mr. Salivar at the Troy police department and to her husband.

The next witness to testify was Kimberly Lane. Lane testified that she had been married for years and that she had worked for SIMBA for V-k months, from August 1987 through September 1987, before joining Metroplex. Defendant interviewed her for the job with SIMBA. During the interview, he informed her that he planned to start his own lab and asked her to come to work for him at the new lab when it began its operation. Defendant trained Lane for three to four weeks while both worked at SIMBA. After she worked at SIMBA for six weeks, she resigned via a letter written by defendant and signed by her and went to work for Metroplex. The night before she went to work for Metroplex, defendant called her and gave her instructions for the next day. This routine was followed during Lane’s employment with Metroplex. Lane testified that defendant was at his garage in the morning while the work was being done, that Dr. Jacks was never there, and that Debbie Camillo was occasionally present, but was not in charge. Lane testified that defendant paid her her first paycheck of $308. The rest of her checks came from a Metroplex account. Like Barr, defendant also told her that the supplies in his garage had come from SIMBA. Lane testified that sometime during the first week in October 1987, she and defendant went to Biochemical Procedures in St. Louis. While they were there, defendant talked to Dr. Toro, who was the owner of that laboratory, and to Dr. Watkins, who was the director. Defendant told them that he wanted them to do the reference work for Metroplex and then wanted to come to an agreement on cost. Defendant explained Metroplex requisitions to the doctors and then told them that the money from such requisitions would be used to pay Metroplex’s employee’s salaries.

After the Metroplex operation was relocated from defendant’s garage to the Kent Building, Lane saw defendant at the office approximately two to three times per week in the mornings. However, in December 1987 or January 1988, defendant stopped coming to the office and Vickie, the new receptionist, began calling her with her instructions for the day. Lane testified that in October or November 1987, on one of her many trips to the lab in St. Louis, she was given a check for $3,200 or $3,300 made out to Metroplex. Defendant instructed her to give this check to his wife, Debbie. Lane testified that after the injunction was issued, she went to a small nursing home with defendant and Randy Cheatham and, at that time, defendant drew blood from a patient. She stated that she only saw Dr. Jacks one time during her employment with Metroplex, which lasted from the beginning of October 1987 until the end of February or the beginning of March 1988. Sometime in November or December 1987, defendant drove Lane to a nursing home in Waterloo to save her mileage. Defendant did not go into the home at that time.

Lane explained that she did not feel things were being done properly at Metroplex. In her opinion, it was not an honest business. Dr. Jacks had no authority, and she felt that defendant was not telling her the truth. She was unable to get a check stub which showed that the proper taxes were being withheld. She felt that defendant’s telephone calls to her were becoming increasingly sexually suggestive. Defendant would call her for no apparent work-related reason and would ask her what she was wearing. According to Lane, things at Metroplex really began to deteriorate in December when she and defendant rode together to St. Louis and defendant asked her for a Christmas kiss. Lane became involved in this litigation when she invited herself to the luncheon with Arna Trotter and Trina Barr. During this luncheon, Metroplex was discussed. The following week she again talked to Arna, who informed her that SIMBA’s doctors and lawyers would like to talk to her. She decided to talk about Metroplex’s problems because she felt it was the right thing to do. Lane stated that she kept her job with Metroplex for as long as she did because defendant had made the job sound so attractive, and she wanted to see if the promises made would materialize. Lane confirmed that she and Trina Barr were friends and that they had called defendant on one occasion and asked him to meet them for drinks.

The next witness to testify was Debbie Camillo, defendant’s wife of nine years. She first testified concerning her DLC Consulting business, which was set up to sell insurance to nursing homes. Mrs. Camillo got involved in this business through her husband. The business did not flourish, and only one policy was sold. Mrs. Camillo admitted that the deposit on the Kent Building was paid out of her DLC bank account and that Dr. Jacks reimbursed her. She described her job with Metroplex as that of a bookkeeper. She does the billing and the payroll and also answers the phone after work hours and on weekends and holidays at her own home through a system of call-forwarding. She is paid $800 every two weeks for her services. The payroll is made through Metroplex’s dealings with Clinical and Biochemical Procedures, Inc. This group pays Metroplex $6,400 per month. A check is given to a Metroplex phlebotomist when he or she drops off the blood samples at the reference lab. The check is then deposited into a Metroplex account. According to Mrs. Camillo, defendant had nothing to do with Metroplex after the beginning of October. It was her job to make a list of nursing homes that had to be serviced the next day and she would give that list to Randy Cheatham. Randy Cheatham would then contact the other phlebotomists sometime after 5 p.m. and tell them where to go the next day. Mrs. Camillo stated that she did not call Kim Lane or Trina Barr concerning their assignments, but they had called her several times to tell her that they had not heard from Randy Cheatham. Mrs. Camillo stated that the supplies in the garage came from an employee of the National Health Laboratories. In addition to the supplies, they were also furnished with a printer for blood test reports. The printer was retrieved after defendant was enjoined. Mrs. Camillo agreed that defendant had written a check for $177 to start up telephone service for Metroplex out of the Gamillos’ joint account. The Gamillos were later reimbursed by Dr. Jacks, who wrote a check to Debbie Camillo; however, defendant endorsed the check and deposited it into the couple’s joint checking account.

Dr. Jacks was the next witness to testify. He stated that he is president of Metroplex and the sole stockholder. According to Dr. Jacks, since the injunction was issued, a concerted effort has been made to get defendant out of Metroplex’s business, namely: (1) defendant’s contact with customers has been brought to a halt; (2) defendant’s garage operations have ceased; (3) Metroplex telephone service at defendant’s home has been stopped; and (4) defendant has changed beepers. The Gamillos have no equity interest in Metroplex. The rent and telephone payments made by the Gamillos on behalf of Metroplex were later reimbursed by Dr. Jacks. Dr. Jacks also testified that he was the one to talk with the people from Kent Realty about the office space, but that Mrs. Camillo was the one that actually found the space on Vandalia Street. He denied ever talking to defendant about this space.

After Metroplex began work on October 1, 1987, Dr. Jacks was left with over 80 specimens that needed to be tested because the doctor who had originally agreed to test Metroplex’s specimens no longer wanted to do it. Dr. Jacks then called another doctor at Clinical and Biochemical Procedures, Inc., who agreed to perform the Metroplex testing. Dr. Jacks denied that defendant had anything to do with setting up the arrangement between Metroplex and Clinical and Biochemical Procedures, Inc. Dr. Jacks also testified concerning Debbie Camillo’s employment with Metroplex. First, he explained that Mrs. Camillo does not work out of the Kent Building office, but, rather, works out of her home because it is more convenient for her. Second, he stated that he purposely tried to limit talking to Mrs. Camillo about Metroplex when defendant was around. Third, he explained his decision to keep Mrs. Camillo as an employee of Metroplex even after the injunction was issued because he could trust her and because he needed her. He found her to be especially helpful in assisting in the licensing of Metroplex. Finally, he admitted that he did have some concerns about the propriety of Mrs. Camillo’s working for Metroplex, but had decided that there was nothing wrong with this arrangement because she had not been enjoined. He agreed that defendant indirectly benefitted by his wife’s employment with Metroplex because the money she earned paid the Camillo family bills.

On cross-examination, Dr. Jacks admitted that, after the injunction was issued, he and defendant went to Park Colonial Nursing Home together. He stated that he did a culture on a patient’s toe, but that defendant had done nothing. He also insisted that Metroplex was not using supplies taken from SIMBA. Instead, Metroplex is using equipment obtained from various reference laboratories which was furnished free of charge to Metroplex. According to Dr. Jacks, reference labs will furnish such equipment because the labs recoup this cost when Metroplex is billed for the actual testing on the specimens. Dr. Jacks admitted that sometime between October 1 and 14, 1987, defendant did take Trina Barr and Kimberly Lane over to the reference lab in St. Louis. Dr. Jacks instructed defendant to take these employees to the lab in order to familiarize them with the route. He explained that the lab is located in an undesirable area, and he did not want them to get lost.

Defendant then presented his case. He testified that he had no arrangements with Dr. Jacks pertaining to the operation of Metroplex. He stated that after the temporary restraining order was served on him, he stopped going to nursing homes for any reason. After the preliminary injunction was issued, defendant pressed Dr. Jacks to move the lab out of his garage. He admitted that he did go to look at office space for Metroplex to rent, but only because Dr. Jacks was “dragging his feet” on the matter. Defendant stated that after the injunction was entered, he stopped answering his phone at home in order to stay out of Metroplex business. Defendant denied taking any SIMBA equipment. He stated that he did have some boxes with the SIMBA logo in his garage, but that he had taken these empty boxes from SIMBA while he was still employed there.

Jeffrey Joe Eades, a sales representative for National Health Laboratories, was the next witness to testify for the defense. He testified that he set up an account with defendant on September 15, 1987. On September 28 or 29, he took a number of supplies to defendant’s home so that defendant would be able to perform laboratory tests. Defendant was not charged for these supplies because it was included in the price of the lab tests that National Health Laboratories expected to charge Metroplex. Eades estimated that the amount of supplies he gave defendant would have lasted between two weeks and one month. Eades explained that he received specimens from defendant on October 1, 1987. After that, National Health Laboratories received nothing more. Eades stated that the reason for this abrupt halt had been explained to him by defendant to be due to the injunction that had been issued.

Defendant was then recalled as a witness. He testified that Trina Barr had threatened him by requesting a letter of recommendation and further requesting that defendant get her job back at Metroplex by talking to Dr. Jacks for her. According to defendant, Barr told him that he did not want “to piss her off.”

Dr. Harry Parks, a SIMBA partner, was the next witness. He testified that he sent a letter, dated October 20, 1987, to each nursing home administrator who had cancelled their contracts with SIMBA since defendant’s departure. The letter refers to the October 14 injunction and asks them to resume service with SIMBA. Dr. Parks admitted that he had no specific knowledge that defendant had violated the injunction.

The next witness was Ruth Ann Lowry, director of nurses at Cahokia Health Care Center. Lowry stated that she had known defendant since his employment with SIMBA and that she had not seen defendant at the Cahokia Health Care Center since October 1, 1987. According to Lowry, defendant called her and told her about the injunction. She then informed all nurses at the home that defendant was not to be allowed in the nursing home. Defendant also informed Lowry during this call that she could communicate with his wife concerning Metroplex business.

Vickie Krawczyk, the Metroplex receptionist since December 1, 1987, also testified. She stated that it is her job to call the phlebotomists each evening to tell them their assignments for the next day. She stated that defendant has never assigned her any work. Krawczyk explained that she was trained by Trina Barr during her first four days on the job. Barr has since quit, but continues to come by the Metroplex office to visit Kimberly Lane approximately one to two times per week. Krawczyk confirmed the story that Barr had told her that she was pregnant with defendant’s child. However, according to Krawczyk, Barr did not tell her that this was only a joke until Barr left the office some 45 minutes later. Krawczyk also testified concerning Barr’s request for a letter of recommendation. She stated that she typed a letter for Barr after Dr. Jacks instructed her to do so, but that Barr refused to accept the letter and stated that she wanted one from defendant. Krawczyk also testified that she has only seen defendant come to the office on two occasions— one time to have his own blood drawn for testing and a second time to attend the Metroplex Christmas party. Krawczyk testified that she is Randy Cheatham’s girl friend and that defendant and Randy are good friends.

Randy Cheatham was the final witness. He stated that he is a Metroplex employee. Prior to employment with Metroplex, he was employed by SIMBA for three years and before that he was employed by Allied Labs. He has known defendant since both worked for SIMBA. He testified that while Metroplex operated out of the Gamillos' garage, defendant did not supervise the phlebotomists. Instead, assignments were made by defendant’s wife. Cheatham stated that he received his first Metroplex paycheck from defendant and, at the same time, he received a $50 personal loan from defendant. Finally, Cheatham explained that he had drawn the blood from a nurse who had come by the Metroplex office for testing.

After consideration of the evidence, the circuit court found defendant in indirect civil contempt for wilfully failing to comply with the preliminary injunction order. The circuit court found that defendant was not a credible witness, being “sometimes equivocal and evasive under cross-examination. ’ ’

The first issue we are asked to address is whether reversal of the preliminary injunction by this court causes the contempt order to fail. Defendant argues that it is contrary to the purpose of civil contempt and unjust to affirm a civil contempt order when the underlying order giving rise to the contempt order has been reversed. Plaintiff replies that reversal of the underlying order was based upon our finding that plaintiff did not have a protectable interest in its competitors, not because we found that the circuit court lacked jurisdiction. Therefore, defendant was required to obey the circuit court’s order under pain of contempt. We agree.

The question posed by defendant is not novel. The same issue was addressed in Cummings-Landau Laundry Machinery Co. v. Koplin (1944), 386 Ill. 368, 54 N.E.2d 462. In that case our supreme court defined the issue as whether the vacation or reversal of an order granting an injunction abates all pending proceedings for contempt for a violation thereof. The Koplin court held that the order or judgment of a court having jurisdiction is to be obeyed no matter how clearly it may be erroneous and such rule applies whether the contempt be technically defined as criminal or civil. The court specifically stated:

“If the case belongs to the general class of cases of which the court has jurisdiction, then it has jurisdiction to grant an injunction, although its order in granting the same may have been erroneously entered. The question of whether the court rightfully or erroneously granted the injunction is not open to litigation on a citation for contempt. If the court has jurisdiction of the cause, an injunction granted in the exercise of such jurisdiction must be obeyed. The only issue in the contempt proceedings is whether the injunction has been violated.” (368 Ill. at 385, 54 N.E.2d at 469.)

Our supreme court has continued to follow its decision in Koplin.

In Faris v. Faris (1966), 35 Ill. 2d 305, 220 N.E.2d 210, the mother of a three-year-old girl petitioned for a writ of habeas corpus to secure her daughter from her husband. Upon the husband’s failure to produce the child as ordered by the circuit court, the husband was held in contempt and ordered committed to the county jail until he complied. On appeal to the supreme court, the father argued that since he did not have actual physical control of his daughter, as she had been taken to Texas, he was under no duty to produce the child. The Faris court disagreed with the father, finding that “[i]t is no answer that the child is not in the actual physical control of a respondent if the record as a whole indicates that he has made no effort to produce the child or is insincere in his defense.” (35 Ill. 2d at 309, 220 N.E.2d at 213.) The Faris court, citing the Koplin decision, also found that “[o]ne is justified in refusing to comply with a court order only if such order is utterly void, but it is no defense in a contempt proceeding to show that the order was merely erroneous.” (35 Ill. 2d at 309, 220 N.E.2d at 212.) The Faris court also stated that if a court has jurisdiction of the subject matter and of the parties, then the court’s order must be obeyed until such time as it is set aside by either the issuing or the reviewing court. (35 Ill. 2d at 309, 220 N.E.2d at 212.) Other courts have continued to follow the line of reasoning set out by the supreme- court that one must comply with a court order unless such order is utterly void and that it is no defense in a contempt proceeding to show that the order is merely erroneous. See In re Marriage of Houston (1986), 150 Ill. App. 3d 608, 615, 510 N.E.2d 1015, 1020; People v. Halprin (1983), 119 Ill. App. 3d 922, 930, 457 N.E.2d 1010, 1015-16; Champaign County Bank & Trust Co. v. Brewer (1978), 63 Ill. App. 3d 490, 493, 380 N.E.2d 54, 56; Stern v. Stern (1963), 40 Ill. App. 2d 374, 380-81, 188 N.E.2d 97, 100.

In the instant case, there is no doubt that the circuit court had jurisdiction over the subject matter and the parties when it issued its preliminary injunction. Defendant goes so far as to admit that the circuit court had the requisite jurisdiction. Nevertheless, defendant argues that he need not obey the circuit court’s order if the circuit court’s order is eventually overturned. Defendant calls our attention to Schallau v. City of Northlake (1979), 82 Ill. App. 3d 456, 403 N.E.2d 266, and People ex rel. Scott v. Police Hall of Fame, Inc. (1979), 69 Ill. App. 3d 501, 387 N.E.2d 856, to support his proposition. Both cases were civil contempt cases in which our colleagues on the Appellate Court, First District, determined that when an underlying order is reversed in such a case, the coercive purpose of the contempt order can no longer be served because it is no longer possible for the parties found in contempt to obey the original order. In such an event, a civil contempt finding falls with reversal of the underlying order. (Schallau v. City of Northlake (1979), 82 Ill. App. 3d 456, 467, 403 N.E.2d 266, 274; People ex rel. Scott v. Police Hall of Fame, Inc. (1979), 69 Ill. App. 3d 501, 504-05, 387 N.E.2d 856, 859.) The logic of these cases comes from the distinction between criminal and civil contempt. Briefly stated, criminal contempt consists of acts tending to lessen the dignity or impede the process of the court, and such proceedings are instituted to vindicate the court’s authority. Sanctions for criminal contempt are punitive in nature. (Falcon, Ltd. v. Corr’s Natural Beverages, Inc. (1988), 173 Ill. App. 3d 291, 297, 527 N.E.2d 504, 508.) On the other hand, civil contempt typically consists of failing to do something ordered by a court and the result is a loss of benefit or advantage to the opposing party with the dignity of the court being only incidentally involved. (Sullivan v. Sullivan (1973), 16 Ill. App. 3d 549, 551-52, 306 N.E.2d 604, 605.) In a case of civil contempt, the reversal of the underlying order means that there was not a justifiable reason for ordering an opposing litigant to either perform or refrain from performing the activity complained of.

We are concerned that the effects of the holdings in Schallau and Police Hall of Fame have the potential to disrupt the orderly administration of justice. Instead, we feel bound by our supreme court’s decisions in Koplin and Faris that court orders must be obeyed until such time as they are set aside by a reviewing court or by the issuing court. This is the rule whether the contempt order is characterized as civil or criminal. To hold otherwise would encourage those who have been enjoined to disregard a circuit court’s order if they believe, rightly or wrongly, that the underlying order would be overturned on appeal. Such an interpretation would severely impede our circuit court’s power and effectiveness. As the Koplin court so eloquently stated:

“It would certainly be an innovation and establish a dangerous precedent to hold that the power of a court to punish for contempt for a violation of its injunctional, or other, orders, is dependent upon the affirmance of such orders by the highest court to which an appeal might be taken. If that were the rule, the powers of courts to preserve the status quo of litigation during the pendency thereof, would be entirely frustrated. It has always been the rule that courts of equity have power, upon a proper showing, to preserve the status of the parties, as well as the subject matter of the litigation until its final determination. Neither the court nor the parties in interest, as a condition to the exercise of such power, must guarantee the final result. The rule that, even though the court may erroneously grant an injunction, the writ must be obeyed, is too well settled to admit of doubt.” (386 Ill. at 386, 54 N.E.2d at 470.)

Therefore, the reversal of the preliminary injunction by this court did not cause the contempt order to fail.

The next issue we are asked to address is whether the order requiring defendant to pay $20,193.79 for plaintiff’s attorney fees should be reversed. Defendant argues that the payment of plaintiff’s attorney fees is a sanction which, by its very nature, is unwarranted under the facts of this case. Plaintiff responds that the award of attorney fees must be allowed to stand because attorney fees may be assessed against a party who violates a court’s order. We agree.

It is generally accepted in civil and criminal contempt that an appropriate remedy may be to require the contemnor to bear the reasonable costs of the contempt proceeding, including the assessment of attorney fees. (Frank B. Hall & Co. v. Payseur (1981), 99 Ill. App. 3d 857, 862, 425 N.E.2d 1002, 1006.) In the instant case, even though the circuit court attached the label of “sanction” to the assessment of attorney fees against defendant, we are not bound to accept this label. We find the assessment of attorney fees to be damages directly attributable to defendant’s violation of the injunction. But for defendant’s violation of the injunction, plaintiff would not have had to incur over $20,000 in attorney fees. We believe that it is not unreasonable to require defendant to pay such costs.

Defendant cites the case of Sullivan v. Sullivan (1973), 16 Ill. App. 3d 549, 306 N.E.2d 604, in which an award of attorney fees was found to be improper because the order for contempt was improper. We find Sullivan to be distinguishable from the case at bar. In Sullivan, a husband appealed from orders of the circuit court finding him in contempt, sentencing him to 90 days’ imprisonment, and assessing his wife’s attorney fees against him for failure to pay child support as ordered. The Appellate Court, First District, reversed the circuit court’s order, finding that the order for contempt was improper, first, because the order did not provide an amount the husband was required to pay, payment of which would have allowed the husband to purge himself of the contempt and, second, because there was no showing of wilful contempt. The Sullivan court determined that the husband’s failure to pay was due to the husband’s insolvency through no fault of his own. In the instant case, there is ample evidence in the record showing that the injunction had been flagrantly violated by defendant. Therefore, we find that the circuit court did not err in requiring defendant to pay plaintiff’s attorney fees.

The final issue we are asked to address is whether the contempt order is contrary to the manifest weight of the evidence. Defendant contends that the contempt order in the instant case must be reversed because the circuit court’s finding that defendant violated the injunction was against the manifest weight of the evidence. We disagree.

It is the circuit court’s function to weigh evidence presented and to make findings of fact. Unless it is found that the circuit court’s holding is manifestly against the weight of the evidence, a reviewing court will not disturb the circuit court’s decision. (Central Steel & Wire Co. v. Coating Research Corp. (1977), 53 Ill. App. 3d 943, 947, 369 N.E.2d 140, 144.) In the instant case, the circuit court found that the following actions of defendant constituted contumacious conduct:

“(a) Gamillo wrote personal checks for payroll salaries and telephone service for Metroplex, a direct competitor of SIMBA.
(b) Gamillo participated in operating laboratory services from his home and garage on behalf of Metroplex.
(c) Gamillo advised and assisted his wife, Debbie Gamillo, in conducting business for Metroplex in direct competition with SIMBA.”

Additionally, the circuit court found that defendant was not a credible witness.

As previously stated, we believe there is ample evidence in the record showing that the injunction had been flagrantly violated. Our exhaustive statement of facts in this cause demonstrates defendant’s utter disregard for the injunction issued by the circuit court, and we see no cause to repeat those violations here. The facts support the circuit court’s conclusion that defendant’s acts constituted a violation of the injunction on more than one occasion. Such violations of a circuit court’s order cannot be tolerated even if, as in the instant case, the order for injunction is later reversed because no protectable interest is found.

For the foregoing reasons, the order of the circuit court of Madison County is affirmed.

Affirmed.

LEWIS and CHAPMAN, JJ., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ENICE LYLES, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—1207
    Opinion filed December 27, 1990.

      Michael J. Pelletier and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Marilyn Schlesinger, Special Assistant State’s Attorney, and Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Enice Lyles, was charged with murder (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1) in a three-count indictment as to Mary (Nichols) Thigpen and her two sons, Robert and Roderick Nichols. After a jury trial, defendant was found guilty of the murders of Robert and Roderick Nichols, and of voluntary manslaughter (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 2) as to Ms. Thigpen. Defendant was sentenced to death for murder of the two boys and to 14 years in the Illinois Department of Corrections for the voluntary manslaughter of Ms. Thigpen. The Illinois Supreme Court vacated the judgment and remanded the cause for resentencing. Defendant was resentenced to a term of natural life imprisonment without parole for the two murders.

On appeal, defendant challenges the jury selection process at the original trial. Defendant claims that his case must be remanded because the prosecution exercised its peremptory challenges in a racially discriminatory manner in violation of the equal protection clause of the fourteenth amendment. The People maintain that a remand of defendant’s claim is barred by the preclusion doctrine of law of the case, and by other such laws and doctrines where the Illinois Supreme Court has found that defendant failed to establish a case of purposeful exclusion in jury selection.

We affirm.

Background

Defendant was charged in 1978 with the murders of Mary Thigpen and her two sons. Jury selection for the trial began on May 26, 1982. The People exercised 12 peremptory challenges to remove 12 African-American venirepersons during the voir dire. After all of the selected jurors were sworn, defendant, through his counsel, moved for a mistrial alleging that he would be denied a fair trial because the State systematically exercised its peremptory challenges to exclude blacks from the jury. In support of his motion, defendant entered into the record the names of the 12 African-American venirepersons whom the People excluded.

The trial court denied defendant’s motion. The trial court also made the following four findings: (1) the assistant State’s Attorney tendered four African-American venirepersons to defendant; (2) the People did not exclude black potential jurors on the basis of their race; (3) there were legitimate reasons for excluding six of the black venirepersons; and (4) the State exercised its challenges in an “honorable manner.” Finally, the court found defendant guilty of murder and voluntary manslaughter.

Defendant was granted a bifurcated sentencing hearing before the same jury. On July 22, 1982, defendant was sentenced to death for the murders, and 14 years in the Illinois Department of Corrections for voluntary manslaughter. The sentence was stayed pending direct appeal to the Illinois Supreme Court. Ill. Const. 1970, art. VI, §4(b); 87 Ill. 2d Rules 603, 609(a).

Defendant appealed directly to the Illinois Supreme Court and asked the court to vacate the judgment. Defendant also raised the jury selection issue. Defendant argued that he did not receive a fair trial due to the People’s discriminatory use of peremptory challenges. The court held that defendant failed to show that the State purposefully excluded African-American venirepersons. (People v. Lyles (1985), 106 Ill. 2d 373, 392-93, cert. denied (1985), 474 U.S. 859, 88 L. Ed. 2d 141, 106 S. Ct. 171.) The court found that 11 of the 12 venirepersons excluded were challenged for acceptable reasons and that the challenges had not been exercised solely on the basis of race. (See Lyles, 106 Ill. 2d at 395.) The court noted that nine of the venirepersons had been convicted or accused of a serious crime, or knew someone who had been. The Illinois Supreme Court also vacated the death penalty and remanded the cause for a new sentencing hearing.

On March 23, 1987, defendant was resentenced to a term of natural life without parole for the two murders. Prior to defendant’s second sentencing hearing, the United States Supreme Court decided Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.

Opinion

Defendant contends that he is entitled to have his case remanded for a full hearing pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Defendant asserts that he is entitled to a Batson hearing even though he was convicted prior to Batson, because Batson is applicable retroactively to all cases pending on direct appeal or not yet final at the time that Batson was announced. Defendant relies upon Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708. The People maintain that the doctrine of the law of the case precludes this court from remanding the cause where the Illinois Supreme Court reached a conclusion upon the issue in an earlier appeal.

The United States Supreme Court has held that the equal protection clause of the fourteenth amendment prohibits a prosecutor from exercising peremptory challenges to dismiss potential jurors solely on account of their race. (Batson, 476 U.S. at 89, 90 L. Ed. 2d at 83, 106 S. Ct. at 1719.) The Court mandated that where a defendant objects to the use of peremptory challenges, his cause must be remanded to the trial court for a Batson hearing, where he will have an opportunity to establish a prima facie case of discrimination.

A prima facie case of discrimination may be established in the following manner:

“[Defendant first must show that he is a member of a cognizable racial group, [citation], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ .[Citation.] Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723.)

“However, as a general rule, the mere number of black venire members peremptorily challenged, without more, will not establish a prima facie case of discrimination.” People v. Garrett (1990), 139 Ill. 2d 189, 203.

Once a defendant shows a prima facie case of purposeful discrimination, the burden shifts to the State to articulate neutral reasons for challenging black venirepersons. (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) The trial court will then determine whether the defendant has established a case of purposeful discrimination. (Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1723-24.) “In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances.” (Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) In People v. Hooper (1989), 133 Ill. 2d 469, the court stated:

“[I]n determining whether an inference of discrimination can be drawn [the court should consider the following]: a ‘pattern’ of excusing black jurors; ‘the prosecutor’s questions and statements during voir dire examination and in exercising his challenges’ [citation]; the disproportionate use of peremptory challenges to blacks [citations]; the level of black representation in the venire as compared to the jury [citation]; whether the ex-eluded blacks were a heterogeneous group sharing race as their only common characteristic [citation]; the race of the defendant and the victim [citations]; and the race of the witnesses [citation].” Hooper, 133 Ill. 2d at 503-04.

The United States Supreme Court later mandated that the standard established by Batson applies retroactively to all cases that were pending on direct appeal or not yet final. Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708.

In the present appeal, defendant argues that his case became final in 1987, one year after the Batson decision was rendered, after he was resentenced. We rule that there was not a final judgment in defendant’s case at the time the Batson decision was rendered. In Illinois, a “judgment” is defined as “an adjudication by the court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 1—12.) The Illinois Supreme Court has held that “the final judgment in a criminal case is the sentence.” (People v. Warship (1974), 59 Ill. 2d 125, 130.) Our supreme court has also held that “[a] judgment is final if it determines the litigation on the merits so that if affirmed the only thing remaining is to proceed with the execution on the judgment.” (Relph v. Board of Education of DePue Unit School District No. 103 (1981), 84 Ill. 2d 436, 441.) A judgment of a court of review is not final if such judgment does not terminate the litigation, but remands the cause to the trial court with directions that a judgment be entered, and said judgment would be appealable to the appellate court under the Illinois Constitution. Relph, 84 Ill. 2d at 442.

Upon applying the aforementioned case law, we find that the judgment in People v. Lyles (1985), 106 Ill. 2d 373, was not final until 1987, when, upon remand, the final sentence was rendered. Although the Illinois Supreme Court had already reviewed defendant’s case upon the merits by the time the Batson decision was rendered, the judgment of the supreme court was not a final judgment because it did not terminate the litigation. The supreme court remanded the case to the trial court with directions that the court resentence defendant. In addition, the new sentence was appealable to a court of review. (See Relph, 84 Ill. 2d at 442.) The Batson decision was rendered while defendant’s case was on remand for resentencing. Therefore, his case was not final at the time that Batson was announced.

However, we cannot give Batson retroactive effect in this case because a relitigation of defendant’s claim is directly barred by the preclusion doctrine of the law of the case. The People have correctly asserted that the doctrine of the law of the case precludes a remand of this cause.

The doctrine of the law of the case provides that a “determination of [a question] of law will generally be held to govern [the] case throughout all [of] its subsequent stages where such determination has already been made on a prior appeal to a court of last resort.” (Black’s Law Dictionary 798 (5th ed. 1979).) “[A]n appellate court’s determination on a legal issue is binding on both the trial court on remand and appellate court on a subsequent appeal given the same case and substantially the same facts.” Black’s Law Dictionary 887 (6th ed. 1990).

In Stallman v. Youngquist (1987), 152 Ill. App. 3d 683, rev’d on other grounds (1988), 125 Ill. 2d 267, we found that “[w]here the evidence on a subsequent appeal is the same as that on the first or prior appeal, or substantially so, the adjudications of the prior appeal become the law of the case.” (Stallman, 152 Ill. App. 3d at 689; see also Martin v. Federal Life Insurance Co. (1987), 164 Ill. App. 3d 820, 825.) There are two exceptions to this doctrine. “The first is where the supreme court, following the first appeal, makes a contrary ruling on the precise issues of law on which the appellate court had based its prior decision. The second exception allows the appellate court to find that its prior decision was palpably erroneous, but only when the court remanded the case for a new trial of all the issues.” (Stallman, 152 Ill. App. 3d at 689; see also Martin, 164 Ill. App. 3d at 825.) Neither of the exceptions applies to this case.

The doctrine of the law of the case applies to this claim because the Illinois Supreme Court reviewed defendant’s claim on the merits, and the evidence in the case at bar is the same evidence that was previously reviewed by the Illinois Supreme Court. The supreme court found that the People did not engage in the purposeful exclusion of black venirepersons during the voir dire. Therefore, the supreme court’s determination of this question of law is the law of the case, and its determination is legally binding upon this court.

For the foregoing reasons, we affirm. The People have requested costs and fees of $75 pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, and People v. Agnew (1985), 105 Ill. 2d 275. As a part of our judgment, we grant the People the aforementioned costs and fees.

Affirmed.

LINN and JIGANTI, JJ., concur.