author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. THE POLLUTION CONTROL BOARD et al., Appellees.
    Second District
    No. 2—89—0340
    Opinion filed November 17, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Michelle D. Jordan, Matthew J. Dunn, Joseph J. Annunzio, and Pamela M. Ciarrocchi, Assistant Attorneys General, of Chicago, of counsel), for the People.
    Daniel L. Siegfried, Special Attorney General, of Chicago, Betty Harrop, of Environmental Protection Agency, of Maywood, and Wayne Wiemerslage, of Environmental Protection Agency, of Springfield (Karen Rosenwinkle, Special Assistant Attorney General, of counsel), for respondent Pollution Control Board.
    Jeffrey C. Fort, Susan M. Franzetti, and Mary Beth Cyze, all of Gardner, Carton & Douglas, of Chicago, for respondent Riverside Laboratories, Inc.
   JUSTICE McLAREN

delivered the opinion of the court:

The State appeals from an order of the Pollution Control Board. We dismiss the appeal.

Riverside Laboratories, Inc. (Riverside), operates a paper-treatment plant in Geneva. In February 1987 Riverside submitted to the Environmental Protection Agency (Agency) an application for renewal of its permit for air emissions. On April 3, 1987, the Agency denied the application, finding that Riverside was subject to and not in compliance with paper-coating regulations. Riverside appealed the permit denial to the Pollution Control Board (Board). On January 5, 1989, the Board reversed and remanded for review the Agency’s determination that the regulations applied. On April 6, 1989, the Attorney General filed a petition for review on behalf of the People of the State of Illinois, seeking a reversal of the Board’s order.

We have taken with the case the Board’s motion to dismiss the appeal. The Board contends that, since the matter was remanded to the Agency for review and further action, the order giving rise to this appeal is not of a final character sufficient to support an appeal. We agree with the Board’s contention.

The Board’s order of January 5, 1989, states in relevant part:

“Based upon a review of the record and the regulations at issue, and the Board’s finding that Petitioner, Riverside Laboratories, Inc., is not subject to the paper coating regulation set forth at 35 Ill. Adm. Code 215.204(c), the Agency determination that Riverside is subject to the paper coating regulations (215.204(c)) is reversed.
The Board does not, in this proceeding, make a finding concerning the applicability of any other regulations to this Petition particularly as this issue was not fully aired; this would be the province of some future action. Likewise the Board does not order the Agency to issue the desired permit.
The Board remands this action to the Agency for review consistent with the Board’s holding that Riverside is not subject to 35 Ill. Adm. Code 215.201(c). During such review Riverside shall be afforded the opportunity to amend its application or submit additional information.” (Emphasis added.)

Final orders of the Board may be reviewed directly by the appellate court. (Ill. Rev. Stat. 1987, ch. HV-k, par. 1041; Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541.) The finality of an order is not necessarily determined by its form; a remandment does not always render a judgment nonfinal. (Wilkey v. Illinois Racing Board (1983), 96 Ill. 2d 245, 249.) Finality must be based upon a determination that the judgment fully and finally disposes of the rights of the parties so that no material controverted issue remains to be determined. (Wilkey, 96 Ill. 2d at 249-50.) Where a cause is remanded for a new trial or further proceedings involving disputed questions of law or fact, the judgment is not final. Wilkey, 96 Ill. 2d at 249.

In the case before us, the proceeding before the Board was a review of the Agency’s denial of Riverside’s permit application. The ultimate issue was whether the Agency had properly denied the application. The Board’s order concerned only the application of the paper-coating regulations to Riverside. The Board explicitly stated that it did not make a finding concerning the applicability of other regulations to Riverside, and it did not order the Agency to issue the permit. Therefore, there has not been a full adjudication on the propriety of issuing or denying the permit. The Agency must still consider Riverside’s application in light of the Board’s order and any other regulations that may apply. Since further proceedings on the application are yet required, this order was not appealable to this court as a final order of the Board.

The State argues that, with respect to the paper-coating issue, “the rights of the parties were fully and finally disposed of.” It is true that this one issue is finally resolved. However, other issues regarding Riverside’s permit application remain unresolved. To adopt the State’s position that the disposition of each issue in a proceeding is appealable is to encourage piecemeal appeal of an action. This we will not do. Neither the resources of the judiciary, nor those of the office of the Attorney General, are well utilized under such an interpretation of the law.

For these reasons, the instant appeal is dismissed.

Dismissed.

DUNN and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    CARBONIC FIRE EXTINGUISHERS, INC., Plaintiff-Appellee, v. JEFFREY HEATH, Defendant-Appellant.
    Second District
    No. 2—89—0596
    Opinion filed November 27, 1989.

      John A. Zaleski, of Algonquin, for appellant.
    Richard H. Balog, of St. Charles, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Carbonic Fire Extinguishers, Inc., filed a five-count complaint in the circuit court of Kane County seeking, inter alia, a preliminary injunction to prevent defendant, Jeffrey Heath, from contacting any of plaintiff’s customers and from disclosing any information contained in plaintiffs scheduling book and customer list. Following the issuance of a temporary restraining order, an evidentiary hearing was held, after which the circuit court issued a preliminary injunction without bond restraining defendant from contacting any customers of plaintiff and from disclosing any information contained in plaintiff’s scheduling book and customer list.

Defendant brings this interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)) from the order granting the preliminary injunction. He essentially contends that the trial court abused its discretion in granting the preliminary injunction. In particular, defendant argues that the customer list and pricing information in the scheduling book do not constitute trade secrets.

The facts, as established at the preliminary injunction hearing held on May 22, 1989, are as follows. Plaintiff is an Illinois corporation, solely owned by Daniel Heath, defendant’s brother. Plaintiff is engaged in the business of cleaning restaurant hoods and their related components and in selling and servicing of fire extinguishers. The business territory is the Chicago metropolitan area and Rockford. Plaintiff has approximately 590 customers. Plaintiff estimates that there are over 10,000 restaurants in the Chicagoland area. Defendant believes there are over 100,000 restaurants in this area.

Defendant had been employed by plaintiff intermittently for the past 10 years. He had been a manager of a cleaning truck for the last three years prior to leaving on March 16, 1989. Although it is not entirely clear from the hearing, defendant apparently drove the truck and supervised the cleaning of various restaurant hoods. There was no written employment contract between plaintiff and defendant, nor was there a covenant not to compete.

During the course of his employment, defendant utilized a scheduling book, also referred to below as a customer list, which contained the names of customers, their addresses, their telephone numbers, the customer contact person, the date of the last servicing of a particular customer, and the price to be charged a particular customer. Generally, customers were serviced on a regular basis, usually every three to six months. When defendant terminated employment with plaintiff, he failed to return the 1988 scheduling book, and, according to defendant, he threw the scheduling book in the trash after he left. He did turn in his 1989 scheduling book. Defendant testified that he knew most of the customers from memory.

Daniel Heath testified that defendant had, subsequent to his termination with plaintiff, contacted about 40 of plaintiff’s customers and performed hood-cleaning services for approximately 13 of plaintiff’s customers. Defendant also contacted approximately 25 businesses that were not plaintiff’s customers.

According to Daniel Heath, the customer list and pricing information, which is on a computer and also contained in the scheduling book, was not given to anyone who was not a manager and that it was always kept under lock and key. It was treated as confidential. Customers were developed through sales calls. Whenever a truck manager secured a new customer, he received 20% of the sales price of the job. Rick Hogrewe, general manager for plaintiff, testified that there was no written policy regarding the scheduling book and customer information although it was made known to the employees that the customer information could not be divulged. Defendant, on the other hand, stated that he took the book home with him and that his wife and other employees had access to it.

While the customer information is not made available to the general public, Hogrewe and Daniel Heath conceded that the names, addresses, and telephone numbers of various customers would generally be available in the telephone book. Hogrewe further admitted that the appropriate customer contact could usually be ascertained by contacting a particular business and inquiring in that regard.

Defendant admitted establishing his own business called Quality Hood Cleaning Company and soliciting cleaning work from various customers of plaintiff that he had developed social relationships with while employed with plaintiff. He was also solicited by several of plaintiff’s customers and has done cleaning for them. Since leaving plaintiff, defendant has serviced approximately 25 restaurants.

The trial court found that plaintiff’s accumulation of customers willing to have hoods cleaned on a regular basis and the price paid by customers were trade secrets. Defendant was preliminarily enjoined from contacting any of plaintiff’s customers and from disclosing any of the information contained in plaintiff’s scheduling book and customer list.

A preliminary injunction is an extraordinary remedy which is applicable only to situations where an extreme emergency exists and serious harm would result in the absence of an injunction. (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 386-87, 483 N.E.2d 1271.) In deciding whether to issue a preliminary injunction, the trial court must consider: (1) the possibility of irreparable harm to the plaintiff’s legal rights pending the outcome of the trial if the preliminary injunction does not issue; (2) the potential irreparable harm to the defendant’s rights if it does; and (3) the likelihood of the plaintiff succeeding on the merits. (Kanter & Eisenberg v. Madison Associates (1987), 116 Ill. 2d 506, 510, 508 N.E.2d 1053.) As to the first consideration, if there is an adequate legal or equitable remedy which will make the plaintiff whole after trial, then a preliminary injunction should not issue. (Kanter & Eisenberg, 116 Ill. 2d at 510-11, 508 N.E.2d at 1055.) Furthermore, a plaintiff must show the existence of a protectable right or interest which will suffer irreparable harm if the injunction is not issued. (Buzz Barton & Associates, 108 Ill. 2d at 387, 483 N.E.2d at 1277.) Finally, the decision to grant or deny a preliminary injunction is within the sound discretion of the trial court and should not be reversed absent an abuse of that discretion. Chicago Health Clubs, Inc. v. Picur (1988), 124 Ill. 2d 1, 7-8, 528 N.E.2d 978.

Defendant contends, in pertinent part, that plaintiff’s customer list and pricing of its services are not trade secrets. In this regard, defendant claims the scheduling book was not confidential. He further argues that the customer’s names are contained in various telephone books and the pricing information is readily available from the customer himself.

Plaintiff responds that the customer list and prices charged, both contained in a scheduling book maintained by defendant, constitute trade secrets within the meaning of section 2(d) of the Illinois Trade Secrets Act (Act) (Ill. Rev. Stat. 1987, ch. 140, par. 352(d)) and, therefore, constitute a protectable right or interest. Accordingly, we address whether the customer list is a trade secret under the Act and, therefore, a protectable right.

Section 2(d) of the Act defines trade secret as:

“(d) ‘Trade secret’ means information, including but not limited to, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, that:
(1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality.” (Ill. Rev. Stat. 1987, ch. 140, par. 352(d).)

The focus of the Act and the common law is on the secrecy of the information sought to be protected. Service Centers of Chicago, Inc. v. Minogue (1989), 180 Ill. App. 3d 447, 453, 535 N.E.2d 1132.

Both a customer list and pricing information fall within the general category of what potentially could constitute a trade secret under the definition set forth in section 2(d). Defendant does not argue to the contrary. However, in order to prove that the customer list and pricing information contained in the scheduling book constitute a trade secret within the meaning of the Act, plaintiff must establish that they are (1) sufficiently secret to derive economic value from not being known to other persons who can obtain economic value from their disclosure or use (Ill. Rev. Stat. 1987, ch. 140, par. 352(d)(1)), and (2) are the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality (Ill. Rev. Stat. 1987, ch. 140, par. 352(d)(2)). Plaintiff has failed to meet the requirements of subsection (d)(1) under the particular facts presented in this case.

In regard to the customer list, the evidence failed to establish that the list of customers contained in the scheduling book used by defendant was sufficiently secret to derive economic value from not being generally known to other persons who can obtain economic value from its disclosure or use. Plaintiff’s general manager, Rick Hogrewe, and David Heath admitted that the names, addresses, and telephone numbers of the various customers were readily obtainable from the yellow pages of the telephone directory. While we recognize that in cases decided prior to the Act a customer list in certain circumstances has been held to constitute a trade secret regardless of the availability of customer’s names in a public directory (see Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 358, 425 N.E.2d 1034 (cases cited therein)), here, plaintiff is engaged in the restaurant-hood-cleaning business, a service commonly utilized by restaurants. As such, although the actual customers using plaintiff’s services are not readily apparent from the telephone directory, anyone seeking to compete with plaintiff, including defendant, could very likely encounter plaintiff’s customers by simply contacting restaurants through the telephone directory. Thus, plaintiff has failed to establish the secrecy of the customer list. Further, other persons would not obtain economic value from disclosure or use of plaintiff’s customer list as identification of potential customers who might use a restaurant-hood-cleaning service would entail little, if any, expense beyond that ordinarily required to establish a customer relationship. (Cf. Service Centers of Chicago, Inc., 180 Ill. App. 3d at 454-55, 535 N.E.2d at 1136-37.) Consequently, plaintiff has not shown that its customer list is sufficiently secret to derive economic value from not being generally known to other persons who could obtain economic value from its disclosure or use.

The pricing information contained in the scheduling book, which is simply the sales price of the job, also does not constitute a trade secret under the Act. It too is not sufficiently secret to derive economic value from not being generally known to persons who could obtain economic value from its disclosure or use. The pricing information here, unlike a unique formula used to calculate a price but unknown to a customer or competitors (see Service Centers of Chicago, Inc., 180 Ill. App. 3d at 454-55, 535 N.E.2d at 1136-37), was available to the various customers to which it pertained. As such, those customers were at liberty to divulge such information to a competitor of plaintiff’s, or to anyone for that matter. Further, there is no evidence that someone else performing this service would not have knowledge of the normal price to be charged for this service. Plaintiff does not contend that its price for a job is unique or not generally known to others in the business. As plaintiff has failed to establish that its customer list or pricing information meet the requirements of section 2(d)(1) of the Act, we need not address whether plaintiff engaged in reasonable efforts to maintain the secrecy of its customer list or pricing information as required by section 2(d)(2) of the Act.

As we determine that neither the customer list nor the pricing information constitutes a trade secret as that term is defined in the Act, plaintiff has failed to show the existence of a protectable right or interest, and, therefore, the issuance of the preliminary injunction was improper. (See Buzz Barton & Associates, 108 Ill. 2d at 387, 483 N.E.2d at 1278.) Furthermore, plaintiff is not likely to succeed on the merits because his claim is based on the wrongful appropriation of a trade secret which, as discussed above, does not exist in this case. Thus, it was an abuse of discretion to issue the preliminary injunction.

For the foregoing reasons, we reverse the order of the circuit court of Kane County..

Reversed.

UNVERZAGT, P.J., and McLAREN, J., concur.


author: JUSTICE NASH

text:
    FREDERICK I. VOLINI, Plaintiff-Appellant, v. MARY DUBAS, Defendant (The State Bank of Woodstock, Defendant-Appellee).
    Second District
    No. 2—88—1110
    Opinion filed November 22, 1989.

      Albert Koretzky and Richard W. Laubenstein, both of DiMonte & Lizak, of Park Ridge, for appellant.
    William I. Caldwell, Jr., of Caldwell, Berner & Caldwell, of Woodstock, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Frederick I. Volini, appeals from an order of the circuit court which dismissed count V of his third amended complaint against defendant, the State Bank of Woodstock, for failure to state a cause of action. Volini contends that the court erred in finding, as a matter of law, that section 3 of “An Act in relation to land trusts and the power and authority of trustees of land trusts to deal with trust property” (Land Trust Act) (Ill. Rev. Stat. 1987, ch. 148, par. 83) eliminated any fiduciary duty of a land trustee to its beneficiaries, and that count V thus failed to state a cause of action. Volini also contends that the trial court erred in denying his motion to strike defendant’s untimely response to a request for admissions made pursuant to Supreme Court Rule 216(c) (107 Ill. 2d R. 216(c)). We reverse and remand.

In the first four counts of his amended complaint, Volini seeks relief from defendant, Mary Dubas, and we are only concerned in this appeal with the alleged breach of its fiduciary duty to plaintiff by defendant, State Bank of Woodstock, for which relief is sought in count V of the complaint.

In count V of his complaint Volini alleged that he entered into an agreement in 1977 with the defendant bank which created land trust No. 2450. The terms of the trust agreement provided, inter alia, that the corpus of the trust was to consist of two parcels of real estate known as 307 and 325 West Jackson Street in Woodstock, Illinois, and that the trustee would deal with the property, its proceeds, or its title only upon the written authorization of Volini, who was beneficiary of the trust. In June 1979, the trustee entered into an installment agreement for deed with Mary Dubas for the sale and purchase of the property at 325 West Jackson Street. In September 1979, Volini assigned his beneficial interest in trust No. 2450 to the First National Bank of Des Plaines as collateral security for a loan.

The complaint further alleged that Mary Dubas failed to make installment payments under the purchase agreement entered with the trustee and in March 1983, there was a balance due to the beneficiary, Volini, of $91,000 for principal, interest and taxes. At this time, Volini was also in default to the First National Bank of Des Plaines on his loan, which was secured by his beneficial interest in trust No. 2450, and that both Mary Dubas and defendant State Bank of Woodstock knew that Volini’s beneficial interest in the trust could be sold by the First National Bank of Des Plaines to satisfy the loan.

The complaint alleged further that the trustee bank violated its duty to plaintiff by assisting Mary Dubas in breaching her installment agreement with the trustee and acquiring plaintiff’s beneficial interest in trust No. 2450 in that it approved a mortgage loan to Dubas in January 1984, for $100,000 for the purchase of the 307 and 325 West Jackson properties, to be secured by those properties, and executed a note and trust deed, as trustee, for that purpose, without the authority or consent of Volini. It was further alleged that Dubas thus purchased at the sale by First National Bank Volini’s beneficial interest in the trust with funds financed by plaintiff’s trustee out of the trust without requiring Mary Dubas to pay the $97,308.54 then due to the trustee for the trust real estate. Volini concludes that as a proximate cause of the trustee defendant’s transactions with Mary Dubas in violation of its fiduciary obligation to him, he was deprived of the proceeds of the trustee’s installment agreement with Dubas and of his beneficial interest in the trust, for which he seeks damages and other relief.

The trial court granted defendant’s motion to dismiss count V of the complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), finding that “Count V fails to state a cause of action because Ill. Rev. Stat., ch. 148, par. 3 [sic], is applicable and eliminates any fiduciary obligation of a land trustee to its beneficiaries in dealing with the subject property.” The court further found there was no just reason for delaying enforcement or appeal of its judgment pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).

Plaintiff Volini contends first that a land trustee is subject to fiduciary duties relating to the trust and that the Land Trust Act under which count V was dismissed (Ill. Rev. Stat. 1987, ch. 148, pars. 81 through 84) did not effect a change in the law of land trusts so as to permit a trustee to deal with the corpus, contrary to the terms of the trust agreement, without the consent of the beneficiary. Volini cite Home Federal Savings & Loan Association v. Zarkin (1982), 89 Ill. 2d 232, 432 N.E.2d 841, in support of his argument.

Defendant, the State Bank of Woodstock, agrees that a land trustee owes a “certain” fiduciary duty to its beneficiary, but does not describe its terms. The bank essentially relies upon section 3 of the Land Trust Act (Ill. Rev. Stat. 1987, ch. 148, par. 83), noting it permits a bank to act both as land trustee and creditor of the same trust, citing South Chicago Savings Bank v. South Chicago Savings Bank (1988), 178 Ill. App. 3d 545, 533 N.E.2d 480, and Sanelli v. Glenview State Bank (1985), 108 Ill. 2d 1, 483 N.E.2d 226. The bank asserts that, as pleaded in count V of plaintiff’s complaint, it did not purchase the trustee beneficiary’s interest at the sale but only approved a loan which allowed Mary Dubas to purchase that interest. The bank urges that the fiduciary duties of a land trustee must be narrowly construed in light of the legislative mandate contained in the Land Trust Act (Ill. Rev. Stat. 1987, ch. 148, pars. 81 through 84). The bank does not address whether its fiduciary duty in this case would permit it to approve a loan of $100,000 to a third party secured by the trust corpus without the written consent of the trust beneficiary required by the trust agreement.

In a typical land trust, as in this case, the beneficiary retains control over the management, use and disposition of the corpus of the trust and the trustee may act only upon the direction of the beneficiary (see Haswell & Levine, The Illinois Land Trust: A Fictional Best Seller, 33 De Paul L. Rev. 277 (1984)). In Home Federal Savings & Loan Association v. Zarkin (1982), 89 Ill. 2d 232, 243, 432 N.E.2d 841, our supreme court determined that a land trustee was subject to the same fiduciary duties as are all trustees and, in that case, found that the purchase of trust property by the trustee for its own account at a sheriff’s sale breached its duty of loyalty to the beneficiary.

Shortly after the Zarkin decision,'the legislature enacted “An Act in relation to land trusts ***” (Ill. Rev. Stat. 1987, ch. 148, pars. 81 through 84), which provides, in relevant part:

“The fact that a trustee of a land trust is or becomes a secured or unsecured creditor of the land trust, the beneficiaries of the land trust, or a third party whose debt to such creditor is guaranteed by a beneficiary of the land trust, shall not be a breach of, and shall not be deemed evidence of a breach of, any fiduciary duty owed by said trustee to the beneficiaries.” (Ill. Rev. Stat. 1987, ch. 148, par. 83.)

It is apparent that the above-noted section of the Land Trust Act overturned, in part, the basis upon which Zarkin was decided by providing that it is not a breach of a fiduciary duty for a trustee of a land trust to become a creditor of the trust, its beneficiaries or a third party whose debt to such creditor is guaranteed by a beneficiary of the trust.

The Land Trust Act was subsequently considered by our supreme court in Sanelli v. Glenview State Bank (1985), 108 Ill. 2d 1, 483 N.E.2d 226, where the court determined that the Land Trust Act was to be retroactively applied and that, under it, no cause of action arose to the beneficiary where a land trustee purchased the trust property at a sheriff’s sale after default by the beneficiary of a loan from the trustee. The Sanelli court did not have occasion to address whether the Land Trust Act removed all fiduciary duties of a trustee to its beneficiary, but held that the Act met constitutional standards.

In Slovick v. All American Bank (1987), 163 Ill. App. 3d 741, 516 N.E.2d 947, the Appellate Court for the First District considered Zarkin and the Land Trust Act and concluded that under the general rules noted in Zarkin, a land trustee owes fiduciary duties to its beneficiary which were not abolished by the Act. (Slovick, 163 Ill. App. 3d at 745.) Subsequently, in South Chicago Savings Bank v. South Chicago Savings Bank (1988), 178 Ill. App. 3d 545, 533 N.E.2d 480, another panel of the Appellate Court for the First District cautioned that Slovick must be narrowly construed in light of the mandate of the legislature and the recent consideration of the Land Trust Act in Sanelli and found, under the facts alleged in the case, that no cause of action for breach of a fiduciary duty by the trustee was stated. South Chicago Savings Bank, 178 Ill. App. 3d at 554.

We find no basis to conclude, as a matter of law, that all fiduciary duties of a land trustee to its beneficiary have been eliminated. In Zarkin, the court noted the general rule:

“The fiduciary obligation of loyalty [of a land trustee] flows not from the trust instrument but from the relationship of trustee and beneficiary. The essence of this relationship is that the former is charged with equitable duties toward the latter. The law imposes the duty, whether the trust instrument mentions it or not. [Citations.]
The trustee’s duty to serve the interests of the beneficiary with complete loyalty, excluding all self-interest, prohibits him from dealing with the trust property for his individual benefit.” (Zarkin, 89 Ill. 2d at 239, 432 N.E.2d at 845-46.)

In its discussion of Zarkin when considering the Land Trust Act in Sanelli (108 Ill. 2d 1, 483 N.E.2d 226), the court found no occasion to set aside the fiduciary standards of a land trustee noted in its earlier case, except insofar as they related to the limited circumstances in .which the legislature had determined a trustee could act without breaching its fiduciary duty in section 3 of the Land Trust Act.

In the present case, plaintiff’s complaint essentially alleged that the defendant trustee entered into an agreement with a third party, Mary Dubas, to loan her $100,000 secured by the corpus of the trust, to purchase trust properties, and did so without the authority or consent of the plaintiff-beneficiary of the trust. Nothing stated in the Land Trust Act, or the cases noted herein which have considered that Act, suggests that defendant’s conduct was so clearly within the scope of its fiduciary duty to plaintiff as to require dismissal of count V of the complaint as a matter of law.

We have considered this matter pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) under which all well-pleaded facts must be considered as true, and any reasonable inferences drawn from the allegations must be construed liberally in favor of the complainant. The motion to dismiss merely tests the legal sufficiency of the allegations of the complaint and does not reach the merits of the claim. Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill. 2d 278, 286, 499 N.E.2d 1319.

We do not here intend to suggest any view as to the merits of plaintiff’s claim and find only that count V of his amended complaint should not have been dismissed as a matter of law under section 3 of the Land Trust Act (Ill. Rev. Stat. 1987, ch. 148, par. 83).

Plaintiff Volini also contends that the defendant bank’s untimely response to plaintiff’s request for admissions pursuant to Supreme Court Rule 216(c) (107 Ill. 2d R. 216(c)) should have required that the requested facts stand as admitted and that the court erred in permitting defendant to file an amended response. We have considered the arguments of the parties as to the issue and find, under the circumstances of this case, that the trial court did not abuse its discretion in the matter.

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

Reversed and remanded.

DUNN and INGLIS, JJ., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
      In re MARRIAGE OF JULIE A. BETTS, Petitioner-Appellee, and JOHN A. BETTS, Respondent-Appellant.
    Fourth District
    No. 4—89—0161
    Opinion filed November 30, 1989.
    Rehearing denied December 21, 1989.

      Kenneth A. Kozel, of La Salle, for appellant.
    Paul R. Wilson, Jr., of Wilson & Lanto, of Rantoul, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Respondent John A. Betts appeals from an order entered July 29, 1988, finding respondent in contempt of court and from an order entered February 24, 1989, denying a motion to reconsider the July 1988 order. Primarily, respondent contends the trial court erred in finding him in criminal contempt of court for failing to comply with a child support order where the order should have been civil contempt. Respondent also urges because he did not receive mail notice of the hearing on the show cause petition, the order is void and should have been vacated on February 24, 1989. For the reasons that follow, we reverse the trial court.

On April 27, 1988, petitioner, Julie A. Betts, filed a petition for rule to show cause against respondent, alleging respondent failed to comply with the December 11, 1987, court order directing respondent to pay $1,200 each semester to Jodie Betts, respondent’s daughter, or to Illinois Wesleyan University (University), where Jodie was a full-time student. The petition alleged the first $1,200 installment, due on or before December 31, 1987, was not paid. An order for a rule to show cause was issued May 2, 1988. A show-cause hearing was scheduled for May 6, 1988. An alias order to show cause was issued on May 6, 1988. A second alias order was issued on May 31, 1988, setting a hearing for June 30, 1988. On the court’s own motion, the hearing on June 30 was continued to July 29, 1988. Respondent filed a response to the show-cause order on July 29, 1988. The record reflects the respondent was properly served with the second alias order to show cause. The record does not show notice to respondent to appear at the July 29 hearing.

Respondent did not personally appear at the July 29, 1988, hearing. However, respondent’s counsel, Kenneth Kozel, appeared. The court found counsel’s appearance established that respondent was aware of the hearing, despite the fact written mail notice of the July 29 hearing was not given to the respondent. The evidence established that respondent paid only $1,240 for the 1987-88 school year to the University and received a refund of $155.84 for overpayments made. Respondent paid the aforementioned amount on June 23, 1988, six months after the court-ordered date for payment. At the time of the hearing, no amounts were due and owing the University for the previous school year because a large portion of Jodie’s tuition had been paid by various loans and scholarships and by Jodie’s employment at the school.

The docket entry in the record for July 29, 1988, reveals the court found respondent “in contempt” of court for failing to make a tuition payment in December 1987. The trial court found respondent’s payment on June 23 represented the June 1988 installment and the December 1987 payment remained unpaid. Judgment was entered for petitioner in the amount of $1,315.84, the amount of the arrearage for the 1987-88 school year. Respondent was sentenced to six months in jail, with leave to purge the contempt after 60 days in jail by paying the sum of $1,200 to petitioner for the use and benefit of Jodie.

Respondent appealed to this court on July 29, 1988. The notice of appeal stated respondent was appealing all orders of the trial court entered on July 29, 1988. On August 8, 1988, petitioner filed a motion to stay the incarceration, asserting the jail sentence without a purging provision for the first 60 days was error. On August 26, 1988, respondent filed an amended notice of appeal pursuant to Supreme Court Rule 303(c)(4) (107 Ill. 2d R. 303(c)(4)). The amended notice specified respondent sought to appeal only the money judgment entered for petitioner on July 29, 1988. On the same day the amended notice of appeal was filed, respondent filed a motion in the trial court for reconsideration of the July 29, 1988, order. This court dismissed respondent’s appeal on November 29, 1988, for respondent’s failure to file a brief. In re Marriage of Betts (4th Dist. 1988), No. 4—88—0561 (order of dismissal).

On February 24, 1989, the trial court heard arguments on respondent’s motion for reconsideration of the July 1988 order. Because of the appeal by respondent, the trial court ordered this motion “stricken from the record as not being properly filed.” By docket entry, the trial court stated that even if the motion was properly filed, it should be denied “because the respondent was properly held in indirect criminal contempt. *** For both reasons the motion to reconsider was denied.” The court, by its docket order, also stated “warrant of arrest issue *** be committed to the Ford County Jail to commence serving a term of six months imprisonment imposed upon him for indirect criminal contempt of this court on July 29, 1988.” Respondent filed a notice of appeal on February 24, 1989, from the orders of the court entered on February 24, 1989, and those orders entered on July 29, 1988. Execution of the jail sentence was stayed by this court pending this appeal.

Although not argued by the parties, we first consider the effect of respondent’s first appeal in July and August 1988, and its dismissal, on the matters presented in the appeal now before us. As noted, by the amended notice in August 1988, respondent sought review of only the money judgment entered for petitioner on July 29. Rule 303(c)(2) allows an appeal from a portion of a judgment. (107 Ill. 2d R. 303(c)(2).) Such appeals are confined to those judgments and orders which are severable because they deal with independent matters. (Kerner v. Thompson (1936), 365 Ill. 149, 154, 6 N.E.2d 131, 133.) The July 29, 1988, orders, which included a judgment civil in nature and a criminal contempt charge, were severable. The principles of res judicata bar respondent from raising any issues regarding the money judgment which was before this court in the first appeal. People v. Mitchell (1981), 95 Ill. App. 3d 779, 791, 420 N.E.2d 415, 424.

As stated, both petitioner and respondent filed motions for reconsideration of the incarceration of respondent. These motions as to the contempt charge were properly before the trial court for hearing on February 24, 1989. (107 Ill. 2d Rules 303(a)(2), (a)(4).) The appeal of the February 24, 1989, orders permits this court to review the court’s order of July 29, 1988, finding the defendant in contempt and sentencing him to jail. Although the court’s orders of July 29, 1988, and February 24, 1989, as to incarceration do not order the same term of incarceration (on July 29, 1988, respondent was ordered to serve six months, with leave to purge after having served 60 days of his sentence — on February 24, 1989, respondent was ordered to serve a term of six months for indirect criminal contempt of the circuit court on July 29, 1988), the discrepancy does not affect the disposition made here.

Respondent argues the contempt finding must be reversed because he was not advised in advance of the nature of the contempt proceedings; he did not receive notice of the hearing held on July 29, 1988; petitioner presented no evidence in support of the show-cause petition; and respondent was not found guilty beyond a reasonable doubt. Respondent relies principally on this court’s decision in In re J.L.D. (1989), 178 Ill. App. 3d 1025, 534 N.E.2d 190.

Petitioner counters that respondent, by implication, knew the July 29, 1988, hearing would involve criminal contempt since respondent, in June 1988, paid the child support claimed due in the show-cause petition. Thus, the only matters that could have been before the trial court on July 29 involved criminal, not civil, contempt. Petitioner argues the evidence of respondent’s contumacious conduct was presented by exhibit to the trial court, after respondent’s counsel elected to proceed with a full hearing on the petition. According to petitioner, this exhibit constitutes an admission in court by respondent of his contumacious conduct and, therefore, respondent was properly summarily punished. Petitioner cites People v. Boucher (1989), 179 Ill. App. 3d 832, 535 N.E.2d 56. Last, petitioner maintains respondent was afforded his due process rights in accord with this court’s decision in J.L.D.

Courts are vested with inherent power to enforce their orders by way of contempt. (In re Johnson (1985), 134 Ill. App. 3d 365, 377, 480 N.E.2d 520, 529.) Whether and on what grounds a party is guilty of contempt and the decision whether to punish the contemnor rests within the sound discretion of the trial court. (In re Marriage of Wassom (1988), 165 Ill. App. 3d 1076, 1079, 519 N.E.2d 1147, 1149.) Such discretion will not be reversed unless it has been abused or is against the manifest weight of the evidence. In re Marriage of Logston (1984), 103 Ill. 2d 266, 287, 469 N.E.2d 167, 176.

There is no dispute that the conduct here involves indirect contempt. The record shows the trial court found respondent in criminal contempt. Respondent argues the trial court could not find him in criminal contempt because failure to pay child support is recognized as civil contempt. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 167; People ex rel. Williams v. Williams (1987), 156 Ill. App. 3d 438, 509 N.E.2d 460; Sullivan v. Sullivan (1973), 16 Ill. App. 3d 549, 306 N.E.2d 604.) We disagree. In our view, the trial court had the authority to find respondent in criminal, as well as civil, contempt, for his actions lessened the dignity of the court. (Hoga v. Clark (1983), 113 Ill. App. 3d 1050, 1058, 448 N.E.2d 196, 201.) However, in criminal contempt proceedings, a contemnor is entitled to certain constitutional protections. (In re Marriage of Wilde (1986), 141 Ill. App. 3d 464, 490 N.E.2d 95.) The alleged contemnor must be (1) informed of the charges against him by rule to show cause or otherwise; (2) allowed to file an answer; (3) afforded a reasonable opportunity to defend at a hearing; and (4) found guilty beyond a reasonable doubt. (In re J.L.D. (1989), 178 Ill. App. 3d 1025, 1031, 534 N.E.2d 190, 194.) These protections the respondent did not receive.

The record reflects respondent received the rule to show cause prior to the scheduling of any hearing, yet failed to receive notice of the hearing on July 29, which had been continued from the previously scheduled date of June 30, 1988. No hearing or other action was taken on June 30, and the trial court, by letter dated July 1, 1988, and filed July 5, 1988, directed the clerk of the court to make the following entry in the docket:

“Upon motion of the court It Was Ordered that this cause be continued to July 29, 1988, at 9 a.m. for hearing on the rule to show cause.”

The next action taken by the trial court was at the hearing on July 29, where only respondent’s counsel appeared. As noted, the trial court found respondent had notice of the July 29 hearing by virtue of the appearance of his counsel.

Considering the totality of the circumstances in this case, we do not believe the appearance of respondent’s counsel at the hearing on July 29, 1988, was tantamount to notice to respondent of the July 29 hearing. Respondent argues our decision in J.L.D. requires the rule to show cause to reflect a contemnor may be found in civil or criminal contempt. We disagree. J.L.D. is distinguishable from this case because there, the contemnor had purged herself of civil contempt prior to the filing of the contempt petition. We are unable to find a rule of law which requires a trial court to specify in advance the nature of the contempt proceedings, where the contumacious conduct existing at the time of the filing of the petition involved violation of a court order. Nevertheless, we believe such a practice is preferred. In the case presented, because the July 29, 1988, hearing involved criminal contempt issues, respondent was required to be present before the imposition of a definite sentence for criminal contempt. (See Barclay v. Barclay (1900), 184 Ill. 471, 56 N.E. 821; Porter v. Alexenburg (1947), 396 Ill. 57, 71 N.E.2d 58.) Further, the record establishes two rules to show cause were pending at the time of this hearing, one directed against respondent and one directed against respondent and his attorney. Contrary to petitioner’s argument, either one of these matters could have been before the court on July 29, 1988, without respondent’s knowledge.

We further find reversible error in the failure of the trial court to recite in its mittimus or at the July 29 hearing that respondent was found guilty beyond a reasonable doubt. (J.L.D., 178 Ill. App. 3d at 1033, 534 N.E.2d at 195.) Despite the fact the record may contain evidence to sustain such a finding, it is not for this court to conclude the trial court did in fact make this finding. Hoga, 113 Ill. App. 13 at 1061, 448 N.E.2d at 203.

We reverse the July 29, 1988, and February -24, 1989, orders finding respondent in indirect criminal contempt of court. Petitioner filed a motion to strike respondent’s reply brief and portions of respondent’s brief which allegedly referred to evidence excluded by the trial court. These motions were ordered taken with the case. In view of our disposition in this matter, the motions, along with respondent’s remaining issues, will not be addressed.

The orders of the trial court are reversed.

Reversed.

SPITZ and GREEN, JJ., concur.


author: JUSTICE STOUDER

text:
    COLONIAL TRUST AND SAVINGS BANK OF PERU, as Ex’r of the Estate of Francesca Rodriguez, Deceased, et al., Plaintiffs-Appellants, v. DAVID D. KASMAR et al., Defendants-Appellees.
    Third District
    No. 3—89—0034
    Opinion filed November 3, 1989.
    Rehearing denied December 11, 1989.

      Louis L. Bertrand, of Anthony C. Raccuglia & Associates, of Peru (Anthony C. Raccuglia, of counsel), for appellants.
    D. Kendall Griffith and Peter G. Panno, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, and Cory D. Lund, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Joliet (Bruce L. Carmen, of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs appeal from the judgment of the circuit court of La Salle County, denying their motions for a new trial and for a judgment notwithstanding the verdict in their wrongful death and personal injury actions for damages sustained in a collision between the plaintiffs’ car and the defendant’s truck. On December 17, 1986, at approximately 4 p.m., Maria Rodriguez (now Maria Perez), accompanied by her mother, Francisca Rodriguez, and her sister, Christina Rocha, was driving south on U.S. 251 towards its intersection with La Salle Road in Peru, Illinois. At that intersection, which is the scene of the collision, U.S. 251 has two principal southbound lanes with additional left- and right-turn lanes for traffic preparing to enter La Salle Road and two principal northbound lanes, also with additional left- and right-turn lanes for traffic preparing to enter La Salle Road. Islands divide the north and southbound lanes on both sides of the intersection. The intersection is controlled by traffic lights, including left-turn signals for traffic turning onto La Salle Road. “Left Turn Yield on Green” signs are displayed to both the north and southbound traffic. The speed limit for the north and southbound traffic is 45 miles per hour.

Approximately 360 feet south of this intersection is another intersection of U.S. 251 with entrance and exit ramps for Interstate 80 traffic. Continuing south from the collision intersection, U.S. 251 upgrades to pass traffic over Interstate 80.

Maria Perez testified that immediately prior to her entering of the intersection to turn left onto La Salle Road, she saw the defendant’s truck coming up “the hill.” She could not give an estimate as to the speed of the truck. She turned her left-turn signal on and proceeded into her turn. She was travelling at approximately 10 to 15 miles per hour. She testified that she had the green arrow and that the arrow did not change as she entered the intersection. To travel through the intersection, her car had to pass through the width of the island divider and two northbound lanes of traffic. When her car had reached the eastmost of the northbound lanes, she looked up and saw the radiator of the defendant’s truck through the passenger window.

The driver of the truck, David Kasmar, testified that on the day of the collision, it had been raining off and on, and the roadway was wet. He testified that as he was coasting down the hill towards the collision intersection, he had a solid green light. He was travelling at approximately 30 miles per hour as he crested the hill. The tractor-trailer which he was driving weighed approximately 21,200 pounds. He testified that he first saw Perez’s car when it was in the left-turn lane and when he was approximately 200 feet south of the collision intersection. He estimates that his speed at that time was 25 miles per hour.

Kasmar testified that when he was approximately 120 to 150 feet from the intersection, the light was still green for northbound traffic, and Perez’s car was proceeding to turn onto La Salle Road. Kasmar stepped on the brake pedal. He testified that it took between IV2 to 2 seconds for the brakes to lock up and that the rear brakes were the first to lock up. The truck skidded into Perez’s car, striking its right front fender and right door. Kasmar estimated that his speed at impact was 20 miles per hour.

Perez’s mother, Francesca Rodriguez, who was sitting in the front passenger’s seat, was killed instantly. Perez’s sister, Christina Rocha, who was sitting in the back seat, suffered serious injuries. She is now a paraplegic. Perez also suffered injuries and was hospitalized for nearly a week.

Eric Sartain witnessed the collision. He first noticed Kasmar’s truck when he passed through the intersection south of Interstate 80. When the light turned green at that intersection, Sartain proceeded ahead of Kasmar’s truck. Sartain passed over Interstate 80 and prepared to make a left turn onto Interstate 80 at the intersection just south of the collision intersection. While he was waiting at the red light to make his left turn, Kasmar’s truck passed by at approximately 30 to 35 miles per hour. He testified that light at the collision intersection ahead of Kasmar’s truck was solid green. Kasmar’s truck was through the intersection where Sartain was stopped when Perez’s car began making its left turn. Sartain heard the locking of Kasmar’s brakes and saw smoke coming from the truck’s back tires. Sartain estimates that Kasmar’s truck was 20 feet from the collision intersection when he heard the brakes lock up. He had no estimate of the speed of the vehicles upon impact. He stated that Perez’s car split in half, and the truck jackknifed. The entire incident took a couple of seconds.

George Brink was driving a truck in the vicinity of the accident. He testified that he had just exited Interstate 80 and was entering the lane used for merging traffic from Interstate 80 onto northbound U.S. 251 when he first saw Kasmar’s truck in his rear view mirror. Brink estimates that Kasmar was 200 to 300 yards behind him. Brink was travelling in the merging lane at approximately 15 miles per hour. When Brink was halfway between the exit ramp and La Salle Road, he noticed that Kasmar was now approximately 100 yards behind him. He estimated that Kasmar was travelling between 30 to 50 miles per hour. The light at the collision intersection was solid green.

Brink did not see or hear the collision. He first became aware of the collision when he saw the severed front end of the Perez car directly in front of him across La Salle Road.

Peru police department officer Robert Thompson investigated the accident. He measured 114 feet of skid marks from the truck, but he could not tell whether they were left by the tractor or the trailer. The rear section of the Perez car rested 116 feet north of the intersection. The front section of the car was facing southeast and was near Kasmar's truck.

Officer Thompson spoke to Maria Perez at the hospital on the day of the accident. He testified that she was lucid at the time of their conversation. He asked Perez whether she had a green light or a green arrow, and she answered that she had a green light.

The circuit court did not permit the plaintiffs’ accident reconstruction expert, Charles C. Roberts, to testify. The plaintiffs’ offer of proof indicated that Roberts would have testified that at the start of his skidmarks, the defendant was travelling at a minimum speed of 57.1 miles per hour. He also would have testified that at the time of impact with the plaintiffs’ vehicle, the defendant was travelling at a minimum speed of 50.87 miles per hour and that the force of the impact caused the rear section of the plaintiffs’ car to project from the point of collision at a minimum speed of 45.8 miles per hour. He would further have testified that the assertions that the truck was travelling at a speed of 25 miles per hour prior to the time of braking and 20 miles per hour at the time of impact are contrary to the laws of physics.

The case went to the jury, which returned a verdict in favor of the defendants on all counts. Judgment was entered on the verdict. After the circuit court denied the plaintiffs’ motions for judgment notwithstanding the verdict and for a new trial, the plaintiffs brought this appeal.

The plaintiffs argue that the circuit court committed reversible error in refusing to permit their accident reconstruction expert to testify. We disagree.

The supreme court of Illinois has held that it is reversible error to admit into evidence accident reconstruction testimony on the issue of the speed of a vehicle where eyewitness testimony is otherwise available, because the speed of a vehicle is not a matter beyond the ken of the average juror. (Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 359, 392 N.E.2d 1, 3; see also Trillet v. Bachman (1981), 96 Ill. App. 3d 477, 481, 421 N.E.2d 580, 583-84.) In this case there was eyewitness testimony as to the speed of the truck. Kasmar testified that he was travelling at approximately 30 miles per hour as he crested the hill, at approximately 25 miles per hour when he was 200 feet from the collision intersection and at approximately 20 miles per hour at the point of impact. Sartain estimated the speed of Kasmar’s truck to be 30 to 35 miles per hour as it passed through the intersection 360 feet south of the accident intersection. Brink estimated Kasmar’s speed to be between 30 and 50 miles per hour just prior to Kasmar’s passing Brink’s truck. In addition to this eyewitness testimony, the jurors had the following evidence: photographs and diagrams of the accident intersection and the damaged vehicles, testimony as to the length of the skid marks and condition of the roadway, the stipulation that a vehicle travelling at 25 miles per hour travels 37.5 feet in one second or Vh times its speed in feet per second, and the stipulation that a vehicle travelling 25 miles per hour comes to a complete stop after it fully applies its brakes in 51.5 feet. Considering all the evidence available to the jurors regarding the speed of the truck (Trillet, 96 Ill. App. 3d at 481, 421 N.E.2d at 584), particularly the eyewitness testimony (Peterson, 76 Ill. 2d at 359, 392 N.E.2d at 3), we must conclude that the circuit court did not err in refusing to admit accident reconstruction testimony into evidence.

The plaintiffs argue collaterally that it was unfairly prejudicial, in light of the court’s refusal to admit such expert testimony, for the defendant to comment in closing argument that the physical evidence of skid marks, age of Perez’s car, weight of Kasmar’s truck and the post-impact condition of the car supported Kasmar’s testimony. The plaintiffs argue that contrary to Kasmar’s testimony, their expert would have testified that the physical evidence supported the conclusion that Kasmar was driving in excess of 57 miles per hour at the point where the skidmarks began. We note, however, that by failing to raise any objection to defense counsel’s comment at the time that it was made, the plaintiffs waived any error arising from the remark. (Friedland v. Allis Chalmers Co. (1987), 159 Ill. App. 3d 1, 4, 511 N.E.2d 1199, 1202.) We will not, therefore, decide whether such comment was unfairly prejudicial.

Finally, the plaintiffs argue that the circuit court erred in failing to grant their motions for a directed verdict, for a judgment notwithstanding the verdict and for a new trial. Again, we disagree. The supreme court of Illinois has stated that “verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) We note that it is particularly within the province of the jury to determine whether a driver’s acts or omissions fell below the applicable standard of care. (Haas v. Tomaszek (1978), 56 Ill. App. 3d 656, 659, 371 N.E.2d 1240, 1243.) In this case the plaintiffs charge that Kasmar failed to keep a proper lookout, failed to keep his vehicle under control and failed to drive at a careful speed. We note, however; that in this case there is ample evidence on either side to permit the case to be submitted to the jury. Therefore, we conclude that the circuit court did not err in denying the plaintiff’s motions for a directed verdict, for a judgment notwithstanding the verdict and for a new trial.

For these reasons we affirm the judgment of the circuit court of La Salle County.

Affirmed.

HEIPLE and SCOTT, JJ., concur.


author: JUSTICE SCOTT

text:
    ROBERT L. YETTON et al., Plaintiffs-Appellants, v. VIVIAN HENDERSON, Special Adm’r for the Estate of Johnnie W. Henderson, Defendant-Appellee.
    Third District
    No. 3-88-0846
    Opinion filed October 5, 1989.
    Rehearing denied December 19, 1989.

      Raymond C. Rose, of Raymond C. Rose, Ltd., of Peoria (James E. Shadid, of counsel), for appellants.
    McConnell, Kennedy, Quinn & Johnston, Chartered, of Peoria (Paul P. Gilfillan, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Plaintiffs-appellants Robert L. Yetton and Faye Yetton (plaintiffs) filed a two-count complaint against Johnnie W. Henderson alleging negligent operation of his truck, causing a collision with Robert Yet-ton (Yetton), resulting in permanent head injuries to Yetton. Vivian Henderson was a passenger in Johnnie Henderson’s truck. Johnnie Henderson subsequently died in an accident unrelated to this incident, and Vivian Henderson was substituted as representative of his estate.

Plaintiffs alleged that both parties were driving west on Interstate 74 in Peoria County, and that Johnnie Henderson’s truck changed lanes in front of the Yettons’ vehicle, giving Yetton no time to avoid a collision with the Henderson truck. By way of answer, defendant admits to the lane change, but denies that it caused the accident.

Defendant moved the court to apply the Dead Man’s Act (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 201) to bar Yetton from testifying as to the event. The court granted the motion and barred Yetton from testifying about the accident.

At trial, plaintiffs called Vivian Henderson to testify as an adverse witness. Mrs. Henderson testified that she was a passenger in her husband’s truck, and they were traveling west at 50 to 55 miles per hour, when they changed lanes. She related that they felt a thump in the rear of the truck just after changing lanes. She also stated that there was a light misty rain, although the investigating officer testified that it was raining harder than he had ever seen before.

Robert Yetton was allowed to testify that as he moved onto Interstate 74, he could see a slow moving truck ahead of him and then changed lanes intending to pass the truck on the left. The court then instructed that Yetton could testify no further regarding the accident.

Lieutenant David Briggs was then qualified as an accident reconstructionist. The court, however, barred Lt. Briggs from relying on testimony of Yetton, which was barred by the Dead Man’s Act in reaching his opinion.

Plaintiff also subpoenaed Trooper Dan Law, who was listed by defendant as her expert. Pursuant to defendant’s motion, the court quashed the subpoena and further refused to allow plaintiff to call Trooper Law as a witness. Trooper Law, however, was not called by defendant as a witness, and plaintiff’s additional request to call Trooper Law was denied.

Defendant presented Vivian Henderson as a witness and the following questions and answers were given:

“QUESTION: All Right, now, Mrs. Henderson, I am going to ask you some questions about your experience with your husband and your observations with your husband with respect to his driving vehicles. In the years of your marriage, did you ever have opportunities to see and be with Mr. Henderson when he was actually driving in — lets put automobiles to begin with?
ANSWER: Yes.
QUESTION: Did you during your years of marriage with your husband have numerous opportunities to have occasion to be with him while driving a farm truck or farm related trucks?
ANSWER: Yes.
QUESTION: Would that statement also be true with respect to this farm truck that you had for approximately two years before the accident?
ANSWER: Yes.
QUESTION: All right. Would that statement also be true with respect to farm related vehicles that may have drive while performing farming operations?
ANSWER: Yes.
QUESTION: Now, I don’t want any testimony, Mrs. Henderson, about the specific accident, but based upon — .
THE COURT: Excuse me, could I see you?”

After a side bar conference was held, the defendant’s attorney was allowed to withdraw the questioning, and the judge instructed the jury to disregard the testimony. The jury subsequently returned a verdict in favor of the defendant and this appeal followed.

Plaintiffs raise numerous issues on review. First, plaintiffs assert the trial court erred in applying the Dead Man’s Act to prevent Yet-ton from testifying about the accident. Plaintiffs’ first argument on this point is that since both parties had eyewitnesses to present the respective sides of the case, the Dead Man’s Act does not apply. As support, plaintiff cites Fleming v. Fleming (1980), 85 Ill. App. 3d 532, 406 N.E. 2d 879, DeMarco v. University of Health Sciences/Chicago Medical School (1976), 40 Ill. App. 3d 474, 352 N.E. 2d 356, Foster v. Englewood Hospital Association (1974), 19 Ill. App. 3d 1055, 313 N.E. 2d 255, Van Meter v. Goldfarb (1925), 317 Ill. 620, 148 N.E. 391, and Plank v. Holman (1970), 46 Ill. 2d 465, 264 N.E. 2d 12. All of these cases, however, are factually dissimilar to the present case and therefore not determinative authority.

Fleming involved an action by the decedent’s widow against the decedent’s estate to have a certain antenuptual agreement set aside on the grounds that the decedent did not disclose the extent of his estate to the widow, prior to the agreement being made. The widow sought to have certain purported conversations between herself, the decedent and others excluded under the Dead Man’s Act, wherein the value of decedent’s estate was made known to the widow. The court in deciding the issue noted that the ultimate purposes of the Dead Man’s Act are to protect the depletion of estates by removing the temptation of the survivor of a transaction to testify falsely and to equalize the position of the parties in regard to the giving of testimony. (Fleming, 85 Ill. App. 3d 532, 406 N.E. 2d 879.) Moreover, the court stated that it was not the widow who was entitled to the protection of the Dead Man’s Act, but the representatives of the decedent’s estate. Further, the representatives of the decedent’s estate, in essence, waived the privilege by testifying about the conversations, the widow was also allowed to testify regarding the conversations, and thus, the parties each had equal opportunity to present evidence on the issue. Fleming, 85 Ill. App. 3d 532, 406 N.E. 2d 879.

DeMarco, which was cited with approval in Fleming, involved a situation where a medical student sued his medical school for breach of contract. A question arose regarding whether or not a certain conversation between the student and the dean, who had since passed away, as well as the dean’s secretary, was excluded under the Dead Man’s Act. The court determined that the facts of the case did not fall within the area the Dead Man’s Act was designed to cover and allowed the secretary to testify. DeMarco, 40 Ill. App. 3d 474, 352 N.E. 2d 356.

In Foster, the widow of a decedent sued the coexecutors of a deceased doctor’s estate in a wrongful death claim. The coexecutors sought to have the testimony of the widow barred regarding her marriage to the decedent plaintiff and the birth of the couple’s children. The court found the Dead Man’s Act did not prevent this testimony, because it was testimony that the doctor, if living, could not refute. In essence, the coexecutors of the doctor’s estate had the same evidentiary capability to refute the widow’s testimony as the doctor would have had if living. Disallowing the testimony would have done nothing but defeat the valid claims of the widow and children. Foster, 19 Ill. App. 3d 1055, 313 N.E. 2d 255.

In Van Meter, three boys darted into an alley in front of the defendant’s car, and one boy was struck by the auto and subsequently died. The deceased boy was the brother of one of the other boys involved in the occurrence. The decedent’s administrator sought to have the defendant’s testimony of the occurrence barred under the Dead Man’s Act. The court stated that the defendant’s testimony was proper because the administrator had called as a witness the decedent’s brother, “a real party in interest,” who testified about the occurrence and thus the defendant was allowed to give his version of the occurrence as an exception to the Dead Man’s Act. Van Meter, 317 Ill. 620, 148 N.E. 391.

In Plank, decedent’s wife brought a wrongful death action against various defendants. The wife was an eyewitness to the collision resulting in her husband’s death. At trial, the wife attempted to admit evidence of her husband’s good driving habits to which one or more defendants objected. The court held that since the wife made no showing that her direct eyewitness testimonial evidence was unavailable, she could not make use of secondary evidence regarding safe driving habits. (Plank, 46 Ill. 2d 465, 264 N.E. 2d 12.) What the Plank court appears to be saying is that the wife had to make a choice of either testifying and waiving her right to invoke the Dead Man’s Act or simply presenting no evidence whatsoever regarding the decedent’s exercise of due care.

Plaintiff misconstrues the holdings of the above cases. None of these cases stand for the proposition that merely because there is another eyewitness to the accident, the adverse party can proceed with testimony otherwise barred by the Dead Man’s Act. The privilege of the Dead Man’s Act in this case rested with the defendant. Similarly, defendant did not waive the right to invoke the Dead Man’s Act simply because Mrs. Henderson took the stand and testified as an adverse witness.

The Dead Man’s Act states in pertinent part:

“In the trial of any action in which any party *** defends as the representative of a deceased person ***, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf *** to any event which took place in the presence of the deceased ***.” (Ill. Rev. Stat. 1987, ch. 110, par. 8-201.)

The Dead Man’s Act then lists four exceptions, none of which are applicable here. We believe the Dead Man’s Act clearly applies to the facts of this case, and plaintiff has failed to cite any other common law exceptions to the Act. Thus, the general rule must be followed barring plaintiff’s testimony, as it has in traffic accident cases in the past. See Murphy v. Hook (1974), 21 Ill. App. 3d 1006, 316 N.E. 2d 146; Compton v. Frank (1970), 126 Ill. App. 2d 356, 261 N.E. 2d 727; Heil v. Kastengren (1946), 328 Ill. App. 301, 65 N.E. 2d 579.

We realize the seemingly harsh results the Dead Man’s Act sometimes produces, but our legislature has determined the law and it is not our place to change or ignore it.

Plaintiff next charges the trial court erred in alerting defense counsel that he was waiving the Dead Man’s Act by putting in testimony of careful habits of the decedent through the decedent’s wife and then, after a conference outside the presence of the jury, allowing the defense attorney to withdraw the questions. The exact questions and answers elicited from Vivian Henderson, previously quoted, are undeniably foundation questions for testimony regarding the decedent’s careful driving habits. When such testimony is introduced by the party protected by the Dead Man’s Act, the adverse party is rendered competent to testify as to the event. (Rouse v. Tomasek (1935), 279 Ill. App. 557.) We do not believe the trial court abused its discretion in allowing the question and answers to be withdrawn. The court has inherent authority to exclude evidence on its own motion without an objection from counsel. Nor do we believe that the foundation testimony prejudiced the jury. These questions asked nothing more than whether Mrs. Henderson had the opportunity to observe the decedent driving certain types of vehicles. No ultimate questions were asked about whether Mrs. Henderson actually observed her husband use careful driving habits while operating vehicles.

The primary concern, however, is whether it was appropriate for the trial judge to halt Mrs. Henderson’s testimony, without objection of plaintiff’s counsel, when it was absolutely clear that defense counsel was about to ask questions regarding careful habits. After halting the testimony the trial judge stated:

“On the record. The reason I called them forward was that I thought I saw a foundation for careful habit testimony. And I *** the purpose of my sidebar comment was not that I had any question about careful habit testimony being admissible, but I don’t *** I wasn’t sure and I wanted to make sure before it all got before the jury, that we resolve a legal question that I thought might develop, and that is can you persist in your statutory claim under the Dead Man’s statute and still get in careful habit testimony. Because, although I have no experience with it, I don’t see how the law could possibly be that way.
Now, I am confessing on the record that I have no idea what the answer is. I haven’t had time to look it up in Cleary. It’s just before it happened, I wanted to get all this out. But it’s a red flag.”

Defense counsel then indicated he would not ask the ultimate question as to careful habit testimony with regard to Mr. Henderson always looking in his rearview mirror prior to changing lanes and withdrew his foundation questions.

Defendant cites cases for the proposition that trial judges should be granted a substantial degree of discretion in the handling and conduct of proceedings during trial (Eckley v. St. Therese Hospital (1978), 62 Ill. App. 3d 299, 379 N.E. 2d 306), and the judge’s remarks and conduct are grounds for reversal only if they are such as would ordinarily create prejudice in the minds of the jury. (Oko v. Rogers (1984), 125 Ill. App. 3d 720, 466 N.E. 2d 658.) Moreover, a party is not entitled to a perfect trial, merely a fair trial. (Zelinski v. Security Lumber Co. (1985), 133 Ill. App. 3d 927, 479 N.E. 2d 1091.) We do not refute these general propositions and believe each case was decided correctly based on those particular facts. Nonetheless, it is clear in this case that defense counsel would have introduced careful habit testimony had not the court interrupted and posed the question of waiver of the Dead Man’s Act. Plaintiff’s counsel was obviously making the strategical decision to allow said testimony, knowing full well that Yetton, who was then barred from testifying by the Dead Man’s Act, may have become competent to testify based on defendant’s waiver; and the trial judge's own remarks indicate he believed that must be the status of the law as well. Had plaintiffs then been allowed to give their rendition of the accident, we find it reasonable to believe that the jury could have decided in plaintiffs’ favor.

Trials are adversary proceedings and the trial judge, although not merely a referee or moderator, should not hinder an advocate’s strategy as long as the strategical method is within legal and ethical standards. Had the testimony being introduced been clearly irrelevant or cumulative, the trial judge, in the interest of judicial economy, would not need to wait for an objection from opposing counsel before halting the testimony. The careful habit testimony, however, was not clearly irrelevant or cumulative although possibly objectionable under the best evidence rule. In essence, the trial judge unintentionally became an advocate for the defense and in this particular situation clearly prejudiced plaintiff’s strategy.

Based on our above finding, we reverse the decision of the trial court denying plaintiffs’ motion for a new trial and motion to reconsider and remand the cause for a new trial. All other issues raised by plaintiff are, therefore, now moot and require no comment here.

Reversed and remanded.

WOMBACHER, P.J., and BARRY, JJ., concur.


author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEE MILLER, Defendant-Appellant.
    First District (1st Division)
    No. 1—85—3703
    Opinion filed March 20, 1989.
    Modified on denial of rehearing December 4, 1989.

      Steven Clark, Michael J. Pelletier, and Debra R. Salinger, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley and Cecil A. Partee, State’s Attorneys, of Chicago (Inge Fryklund, Catharine A. Forest, and Joseph G. Howard, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, Lee Miller was convicted of murder, robbery and burglary and sentenced to a term of natural life imprisonment. On appeal, he raises the following issues for review: (1) he was not proven guilty of robbery beyond a reasonable doubt; (2) the trial judge erred by denying his motion for a continuance; and (3) the State’s failure to disclose incriminating statements allegedly made by the defendant violated his right to discovery and unfairly impeded his preparation for trial. We affirm the decision of the trial court.

The principal witness for the prosecution was Tamora Martin, who was a friend of the defendant. Tamora was addicted to heroin and had turned to prostitution to support her drug habit. In June of 1981 Tamora visited the apartment of Mr. Gall, an 81-year-old man, for the purpose of engaging in sexual activity with him. Mr. Gall, however, told her that he did not have sufficient funds to pay her for her services, so she left.

Several days later, Tamora revealed, during a conversation with the defendant, Timothy Gilbert, another friend, and Betty Moore, the mother of Tamora’s boyfriend, that Mr. Gall was an elderly man who lived alone and had many valuable belongings in his apartment. The defendant proposed a plan to rob Mr. Gall, suggesting that Tamora go to the apartment and leave the front door unlocked so that the defendant could sneak in, collect the valuables and leave. Initially, Tamora refused to participate in the robbery, but on July 9 she finally agreed to do so.

Tamora called Mr. Gall and asked him if she could come over that evening but was told no. She called him again the next morning, at which time she was told to come over at 9 p.m. that evening.

At approximately 8:30 p.m. that evening, Tamora met the defendant, Timothy Gilbert, and his girlfriend, Sandra Hubson, in front of Tamora’s apartment. The foursome took Tamora’s grandmother’s car to Mr. Gall’s apartment. They arrived at approximately 10 p.m. and parked one-half block from the apartment, at which point they reviewed the robbery plan.

Tamora went to Mr. Gall’s apartment and went into the living room, which was located in the rear of the apartment. Mr. Gall offered her some refreshments, and she ate while he massaged her neck.

Fifteen or twenty minutes later, she told Mr. Gail that she had left her keys in the car and would be right back. She went downstairs and met the defendant in the courtyard of the building; he instructed her to go back to the apartment and to leave the door open. She went back to the building and rang Mr. Gall’s apartment and placed a piece of paper in the security door so that the defendant could get in. Tamora, upon arriving back at the apartment, unlocked the door when Mr. Gall was not looking. She then accompanied him into the living room, where he once again began to massage her neck.

Approximately 10 minutes later, a loud noise from the front of the apartment startled both Mr. Gall and Tamora. The defendant entered, walked over to Mr. Gall and struck him in the face. Tamora told the defendant to stop, but he hit Mr. Gall a second and a third time, knocking him unconscious. The defendant continued to beat Mr. Gall, and Tamora ran downstairs and asked Timothy Gilbert to stop the defendant.

Gilbert went up to the apartment, and Tamora waited in the car. Approximately 10 minutes later, both the defendant and Gilbert returned to the car. They told her that Mr. Gall was all right but had to be tied up. They had taken $15 and a gold watch from Mr. Gall; the defendant, Gilbert and Tamora each kept $5.

They drove to a bar where Tamora called the police. She told them that her name was Julie Adams and that screams were emanating from an apartment at 7304 Ridge. Tamora then dropped Gilbert off at the Apache Motel, where he lived with his girlfriend, and drove the defendant to his girlfriend’s house. At that point, the defendant warned Tamora not to call the police because she would be blamed for the incident.

The next day, Tamora told Betty Moore, whom she knew to be a police “snitch,” about the incident. Thereafter, she met with several police officers. Later, she turned herself into the police and admitted being involved in the incident.

At the time of defendant’s trial, Tamora was also under indictment for robbery, burglary, home invasion and aggravated battery. She stated that in return for her testimony, the assistant State’s Attorney had agreed to dismiss the home invasion, burglary and aggravated battery counts and to recommend a four-year sentence of probation for robbery.

Officer William Hougesen, a Chicago police officer, was called as a witness for the State, and he stated that on July 10, 1981, at approximately 11:20 p.m., he responded to a call at 7403 North Ridge. Officer Hougesen and his partner, Officer Judy Fells, entered the second-floor apartment and found Edward Gall lying on the floor. Mr. Gall, who appeared to have been severely beaten, was taken to St. Francis Hospital.

Chicago police detective Robert Mette also testified, and he said he was assigned to the investigation on July 12, 1981. He stated he had an evidence technician dust for fingerprints in the apartment. He further testified that Timothy Gilbert and Sandra Hubson were taken into custody first and that Tamora, Kenny Moore and Betty Moore later came into the station on their own.

The suspects were placed in separate rooms and interviewed. The defendant told Mette that he was with Tamora, Gilbert and Hubson in the Lake Hotel at the time of the robbery. Mette stated that a piece of paper with the victim’s name on it was recovered from the defendant’s wallet. At trial a Xerox copy of this paper was admitted into evidence because the original had been destroyed.

Detective Mette also interviewed Tamora, who told him in an oral statement that the defendant and Gilbert had planned the robbery. He then took a written statement from her in which she detailed the events of the robbery.

Edward Gall, Jr., the son of the victim, testified that when he had seen his father three days prior to the incident, his father had been in good health. When he saw his father on July 11, 1981, at approximately 12:30 a.m. in the emergency room at St. Francis Hospital, his face was swollen and heavily bruised with both eyes blackened. Mr. Gall, Sr., was unable to speak, ingest food or drink and had to be fed intravenously. He had bruises on his chest, back, arms and wrists. His condition deteriorated daily, and he eventually lapsed into a coma and was placed on a respirator.

In late July, Mr. Gall was given a tracheotomy because he was unable to breathe. Shortly thereafter, he had brain surgery to relieve the pressure on his brain resulting from excessive bleeding. Mr. Gall died in the hospital on August 5, 1981.

Dr. Joann Richmond, a forensics pathologist, testified that she had performed an autopsy on Mr. Gall on August 6, 1981. There were large bruises on the face and chest of the body and various scars from the surgery. The victim had a broken jaw and fractured nose and had suffered four brain hemorrhages. She stated that Mr. Gall had died as a result of multiple injuries sustained in a beating. The court refused the State’s request to introduce photographs of the victim into evidence, agreeing with the defense’s objection of gruesomeness. The defense stipulated to the cause of death. The court refused to admit the photographs on the basis of the defense’s objection.

The jury found the defendant guilty of murder, robbery and burglary. Defendant waived sentencing by the jury and allowed the judge to decide whether the death penalty should be imposed. The trial judge found the defendant eligible for the death penalty but found there were sufficient mitigating factors to reduce the sentence to natural life imprisonment.

The first issue raised on appeal is whether the trial court erred in refusing to grant defendant a continuance due to the fact that defense counsel had been tendered voluminous medical records the Friday before trial.

It is well settled that the granting of a continuance based upon defense counsel’s lack of preparation rests within the discretion of the trial court and that the denial of such a continuance will not be disturbed absent an abuse of discretion. (People v. McKay (1985), 138 Ill. App. 3d 446, 454, 485 N.E.2d 1257.) The determination of whether the trial court abused its discretion must be considered in light of two factors: (1) the diligence shown on the part of the defendant; and (2) the extent that such a denial prejudiced the defendant in the preparation of his defense. People v. Jefferson (1976), 35 Ill. App. 3d 424, 426, 342 N.E.2d 185.

The record indicates that on Friday, October 4, 1985, the State tendered medical records to defense counsel. On Monday, October 7, 1985, defense counsel requested a continuance. Applying the Jefferson test to these facts, we do not believe that defense counsel exercised due diligence or that the denial of the continuance here prevented the defendant from preparing his defense or prejudiced his rights. The defendant’s counsel contended he did not have adequate time to review the records, to prepare and investigate a possible defense, or to investigate and interview witnesses concerning the victim’s cause of death. However, as noted by the court, counsel had been the attorney of record since 1981. He had been on notice for over four years that approximately four weeks elapsed between the date of the incident and the date of the victim’s death. He had been supplied with the names of the medical personnel involved with Mr. Gall’s treatment and autopsy in 1982. He had ample opportunity during this time to investigate the victim’s cause of death and to prepare a defense. Furthermore, defense counsel chose not to cross-examine Dr. Richmond, the forensic pathologist, and offered to stipulate to the cause of death. Consequently, we find that the trial court did not abuse its discretion by refusing to grant defendant a continuance.

Defendant also argues that the State’s failure to provide defense counsel with a statement, allegedly made by the defendant to Tamora, resulted in the denial of due process and denied him a fair trial. Tamora testified at trial that a week or two before the incident involving her, she had a conversation with the defendant concerning Mr. Gall and the valuables he had in his apartment. When she was asked if the defendant said anything during this conversation, defense counsel objected and requested a sidebar. During the sidebar, defense counsel argued that the State had failed to disclose any statements made by the defendant to Tamora prior to the incident and requested that it be barred from evidence. Defendant claims that he was taken by surprise by this statement and that up to this point, he believed that Tamora had told the police that only Gilbert had planned the robbery.

Supreme Court Rule 412 requires that the State disclose “any written or recorded statements and the substances of any oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgement of such statements.” (87 Ill. 2d R. 412.) This provision encompasses not only formal statements made to the authorities, but also statements made to anyone that might have a bearing on the defendant’s guilt or innocence, as it is designed to prevent surprise and prejudice to the accused. People v. Orr (1986), 149 Ill. App. 3d 348, 358-59, 500 N.E.2d 665.

The State contends that it complied with discovery when it tendered to defense counsel the police reports and statements made by the defendant. The State’s answer to discovery stated that all memoranda reporting or summarizing statements made by witnesses were contained in the police reports. The police reports contained a summary which stated that the defendant was involved in the planning of the robbery.

Consequently, the State filed a motion to supplement the record on appeal with the police reports, pursuant to Supreme Court Rule 329.

First, as a preliminary matter, we address defendant’s argument that our use of Supreme Court Rule 329 is inappropriate. Supreme Court Rule 329 permits the amendment of the record where there are material omissions or inaccuracies or if the record is otherwise insufficient to present fully and fairly the questions involved. 87 Ill. 2d R. 329; People v. Span (1987), 156 Ill. App. 3d 1046, 1053, 509 N.E.2d 1057. See also People v. Petty (1987), 160 Ill. App. 3d 207, 211-12, 513 N.E.2d 486.

Our supreme court in People v. Chitwood (1977), 67 Ill. 2d 443, 367 N.E.2d 1331, remarked that Rule 329 is a “very broad provision” and allowed amendment of the record to supply an omission therefrom. The court there stated:

“Defendant points out that if Rule 329 is construed as allowing amendment of the record to show a waiver of jury trial, a threat is posed to the effective exercise of that constitutional right. On the other hand, we cannot disregard the fact that defendant’s construction of the rule also creates a risk — namely, that a defendant who had in fact waived a jury may, following conviction and sentence, decide to repudiate his waiver and thus to obtain a retrial of his case.” Chitwood, 67 Ill. 2d at 448.

In the case at bar, defendant argues that if we allow the State to supplement the record, we condone the State’s attempt to litigate on appeal the question of whether counsel actually received the reports under the guise of Rule 329. We reject that argument. We conclude, like the People v. Chitwood court, that a defendant cannot now allege noncompliance with discovery and then seek to repudiate receipt of the very documentation which, if amended to this record, would “present fully and fairly the questions involved.”

One of the objects of Rule 329 “is to allow the record on appeal to be amended to *** settle controversies as to whether the record on appeal accurately discloses what occurred at trial. It is designed to facilitate the amendment of the record on appeal. [Citation.]” Petty, 160 Ill. App. 3d at 211.

Further, we recognize that the police reports were not admissible at trial as substantive evidence. (People v. Morris (1978), 65 Ill. App. 3d 155, 382 N.E.2d 383.) Nonetheless, the police reports are properly a part of the record on appeal where: (1) they were referred to in the State’s answer to discovery filed on April 22, 1981; (2) the judge’s notes from November 2, 1981, reflect that they were tendered to the defense in open court; (3) they were referred to during the trial proceedings to clarify the issue whether the defendant had prior notice of the oral statements he allegedly made to Tamora; and (4) they were used extensively during cross-examination of Officer Mette. See People v. Brackett (1986), 144 Ill. App. 3d 442, 446, 494 N.E.2d 610; People v. Burnside (1985), 133 Ill. App. 3d 453, 457, 478 N.E.2d 884.

Therefore, we believe that a reviewing court can allow, as here, amendment which is verified by documentation in the record, where such amendment supplies an omission in the record without impeaching or contradicting the contents thereof (People v. Whitehead (1980), 87 Ill. App. 3d 885, 889-90, 409 N.E.2d 358), and is not used for any evidentiary purpose, but only for the very limited and narrow purpose of settling the question of whether the record conforms to the truth. We conclude that it was necessary to add the police reports to the record for the questions presented on appeal to be fully and fairly decided. As a practical matter, such supplementation aids this court in complete consideration of the merits of the case on appeal. See Petty, 160 Ill. App. 3d 207.

However, we would be remiss if we did not address the defendant’s argument that new evidence cannot be added on appeal. We agree with the defendant; and hence, we reinforce the long-established rule in this jurisdiction that our holding today in no way implies that Rule 329 may be used as a vehicle for introducing additional evidence into the record. (See People v. Prather (1977), 55 Ill. App. 3d 54, 370 N.E.2d 831.) But see People v. France (1987), 163 Ill. App. 3d 819, 516 N.E.2d 1036, where the court did not allow the State to supplement the record on appeal with photographs allegedly used in a photo identification because the issue was raised for the first time on appeal. However, we distinguish People v. France from the case at bar. The court there held that Rule 329 is not intended to add totally new material to a trial court record which already discloses accurately what occurred. Here, the State was not seeking to add new material to the record, and neither did the record clearly disclose what had occurred but for the amendment.

We now turn our attention to the question of whether the police reports are determinative of the issue whether the State complied with discovery in accordance with Rule 412. The essence of defendant’s argument is that he was not tendered the contents — and hence the substance — of inculpatory remarks allegedly made by him to Tamora during a conversation^) between the two of them and Tim Gilbert, an individual also charged in the incident, but not a party to this appeal, a week or two before the incident. Defendant maintains that he was surprised by Tamora’s testimony at trial and subsequently prejudiced by this purported discovery violation.

The State responds that the police reports adequately summarize the substance of defendant’s statements, which satisfies the Rule 412 requirements (see People v. Howard (1984), 121 Ill. App. 3d 938, 460 N.E.2d 432), and that, at best, any error was harmless error because defendant suffered no prejudice, where Tamora was originally a codefendant in the matter, defendant had an opportunity to interview her prior to trial, and defendant was apprised of this same information in other written reports and in written statements obtained from Tamora and Gilbert.

The rationale behind pretrial discovery is to afford the defense an adequate opportunity to investigate and to alleviate untimely interruptions at trial occasioned by disclosures of statements first made at trial. (People v. Moses (1957), 11 Ill. 2d 84, 142 N.E.2d 1.) Additionally, Supreme Court Rule 412 was adopted to prevent surprise and prejudice to the accused. (People v. Stewart (1980), 84 Ill. App. 3d 855, 406 N.E.2d 53.) Thus, technical compliance may be excused where the defendant had access to the statements. See People v. Sanders (1974), 56 Ill. 2d 241, 252-53, 306 N.E.2d 865; People v. Simms (1976), 38 Ill. App. 3d 703, 348 N.E.2d 478. See also People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.

In the present case, the record demonstrates that the defendant received the felony review report and police report, which were tendered in open court and referred to extensively during cross-examination of Officer Mette, and that he received Tamora’s written statement, part of which was read into the record at the request of the trial court. That part provides: “I went into the living room after Mr. Gall left [sic] into the apartment. I left the door unlocked so Lee Miller or Tim Gilbert could sneak into the apartment and steal some valuables out of the dining room china cabinet.” Defendant argues that he had no knowledge that Tamora would testify that she had a conversation with him where they “planned” the robbery, nor did he have any prior notice of any conversations.

We find defendant’s argument to be without merit. We agree with the trial judge’s pronouncements that defendant had prior notice, the State complied with discovery, and the defendant was not surprised or prejudiced at trial. Tamora was a codefendant. The defendant, along with Tamora and Gilbert, was indicted and charged with burglary, robbery, home invasion and aggravated battery. The defendant was also charged with murder. The State, during the course of discovery, revealed the substance of oral statements made by the defendant and codefendants. More importantly, even though the State did not disclose, as the trial judge remarked, “precise words,” it did disclose Tamora’s written statement which memorialized her oral statement wherein she stated the parties involved discussed “the planning” of the incident. Moreover, in addition to receiving the actual written statements, the police report corroborates the State’s position that defendant had prior notice. The police reports referred to both Tamora’s and Gilbert’s statements which implicated the defendant and explained how the incident would transpire. Inherent in “planning” is either the existence of a written plan or a discussion of the plans. Here both Tamora and Gilbert admitted planning and committing the robbery in the company of defendant. Hence, we conclude that the substance of the oral statement or “plan” was previously furnished to defendant prior to Tamora’s testimony at trial.

Moreover, we believe that when the substance of a statement is contained in a police report that has been previously furnished to the defense pursuant to discovery, the purpose of the rule has been satisfied and no prejudice results from the withholding of another memorandum of the same statement. (People v. Howard (1984), 121 Ill. App. 3d 938, 948, 460 N.E.2d 432; People v. Herrera (1981), 96 Ill. App. 3d 851, 856, 422 N.E.2d 95.) Furthermore, when defense counsel first learned of the substance of the statement, he did not request a continuance in order to investigate the circumstances of the alleged statement. When a defendant fails to request a continuance for investigation of the alleged statement and instead proceeds to trial, he cannot complain of prejudice. (People v. Cisewski (1987), 118 Ill. 2d 163, 175, 514 N.E.2d 970.) Therefore, the prosecution’s failure to provide specific notice of the statement is not reversible error.

Finally, defendant maintains that he was not proven guilty of robbery beyond a reasonable doubt because the State failed to present any evidence that the defendant used violence on Mr. Gall to force him to part with his property.

A robbery occurs when a person takes property from the person or the presence of another by the use of force or by threatening the imminent use of force. (Ill. Rev. Stat. 1985, ch. 38, par. 18— 1.) The evidence establishes that Tamora saw the defendant beating the victim in his apartment. She immediately ran to the car and asked Gilbert to go up and stop the defendant. Within 10 minutes, both the defendant and Gilbert returned to the car. Gilbert said he had taken $15 out of Mr. Gall’s pocket and stated, “This [was] all we got.” This evidence is sufficient to establish that force preceded or was contemporaneous with the taking of the property (see People v. Hepler (1985), 132 Ill. App. 3d 705, 477 N.E.2d 768) and is sufficient to establish the defendant’s guilt beyond a reasonable doubt.

For all of the above reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

QUINLAN and O’CONNOR, JJ., concur.