author: JUSTICE LUND JUSTICE COOK,

text:
      In re MARRIAGE OF SHERYL JOHNSON, Petitioner-Appellee, and LARRY JOHNSON, Respondent-Appellant.
    Fourth District
    No. 4-92-0749
    Argued April 13, 1993.
    Opinion filed June 10, 1993.
    COOK, J., dissenting.
    Steven Nardulli (argued), of Stratton, Dobbs & Nardulli, of Springfield, for appellant.
    James E. Elmore, (argued), of Elmore & Reid, of Springfield, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

This appeal is from an August 27, 1992, order of the circuit court of Logan County denying respondent Larry Johnson’s petition to modify maintenance payments. While this domestic proceeding has previously been before this court (In re Marriage of Johnson (1991), 215 Ill. App. 3d 174, 574 N.E.2d 855), we now review only evidence relevant to the current petition to modify. To modify maintenance, Larry must show a substantial change in circumstances. 111. Rev. Stat. 1991, ch. 40, par. 510(a).

The marriage of respondent and petitioner Sheryl Johnson was dissolved in November 1989. Each received a half of what was at that time perceived to be a net worth of approximately $210,000. Sheryl’s $105,000 share was basically investments and a $55,000 12-year mortgage with 6% interest which called for monthly payments of $533.78 and encumbering the real estate received by Larry. She was awarded permanent maintenance of $500 per month. Larry received the only real estate, a 12-acre tract east of Lincoln, improved with a family residence and farm buildings used in a hog-raising operation. He also received aU equipment used in the operation, but assumed all debts of the parties plus Sheryl’s $55,000 second mortgage which, at the time of hearing, had been paid down to $48,000.

While Larry blames his current economic problems on a January 1991 disease resulting in the death of 260 to 265 pigs, the undercapitalization which resulted from the dissolution may be the more likely culprit.

Larry remarried and now lives with his present wife and three stepchildren in the residence on the 12 acres. The present wife has some income which is now supporting her, the children, and, in part, Larry. Larry has been a pork producer since 1964. He did do carpentry work for a total of five or six years, all prior to 1982. He has only a high school education.

In late winter of 1991 and spring of 1992, Production Credit Association (PCA), his major source of financing, determined to cut off financing. By that time, the pig loss in early 1991 had shown up in substantially lower hog sales. By the end of May 1992, PCA had notified all those buying pigs from Larry that PCA was exercising its security agreements and that all checks for livestock purchases were to be made payable to PCA and Larry.

We must recognize in this case that evidence of farm income has no relevance in determining present and future income. A livestock operation cannot be operated without sufficient capitalization or adequate credit — Larry has neither.

Counsel for Sheryl, in suggesting Larry has financial ability, placed emphasis on the 1990 construction of a $50,000 shed by Larry. PCA provided financing for this shed. The debt, then approximately $55,000 to $57,000, was paid off in March 1992 with funds from liquidation of hogs. There was evidence that the value of market livestock and breeding livestock in January 1992 was $92,000. The liquidation to pay the $55,000 to $57,000 would have substantially reduced the value but because feeding was still continuing, inventory value would increase — being decreased only by subsequent sales.

By May 1992, PCA was advancing funds only to pay for feed for the existing livestock. All credit from suppliers had been cut off. The approximate asset and liability picture at the time of the May 15, 1992, hearing was as follows:

ASSETS
12 acres with house and farm buildings $174,000
Personal items, household goods, et cetera 19,000
Machinery and vehicles 29,000
Livestock 54,000
Total $276,000
LIABILITIES
Farm Credit Service — farm mortgage $ 82,000
PCA — two loans secured by livestock or machinery 54,000
Magna Bank — lien on 1988 Chevrolet Blazer 5,000
Sheryl Johnson — judgment 11,000
Sheryl Johnson — second mortgage on 12 acres 48,000
Unsecured claims of various creditors 38,000
Total $238,000
Assets $276,000
Liabilities -238,000
Balance $ 38,000

More important than what appears to be the net worth is the absence of credit. PCA, the major creditor, determined that the operation would not “cash flow,” and this was without considering the $6,000-per-year maintenance payment. Larry could not buy pigs or feed, thus was unable to make income from the hog operation. This situation is typical of many undercapitalized farm operations which have gone by the wayside in the last 10 years.

Sheryl argues Larry can work as a carpenter or can run the hog operation for someone else. Larry testified that he last did carpentry work in 1981. He stated he had recently sought employment as a carpenter, but no such work was presently available. While he testified the hourly rate would be $8 per hour, when asked if any work was available he said, “Not yet. I’m waiting.” Farm labor hourly rates were “[f]ive to six dollars if they’re lucky.” To conclude that Larry will have sufficient income to pay maintenance, regardless of the serious financial reversal, is pure speculation.

Testimony as to the feeding operation established that Larry cannot, because of lack of collateral and credit, restart the business. The evidence of someone hiring him to run the operation is scanty and, in any case, would not free Larry from the responsibilities of maintaining the buildings and paying the mortgages.

What we have here is an unemployed, ex-pork-producing farmer faced with paying interest payments, unpaid farm bills, and maintenance. With no funds available to make payments, unpaid interest will result in constantly increasing indebtedness, as will the unpaid maintenance. There probably is only one way out — to liquidate as quickly as possible, hopefully paying off all debts. This solution also presents problems. The sale of farms, real estate, and equipment can result in depreciation recapture, thereby creating taxable income and taxable capital gains. (See 26 U.S.C. §1245 (1988).) This taxable income does not create additional value, only additional Federal income tax. This may well be a situation where an insolvent taxpayer owes tax, while having no funds available to pay the tax.

Another problem with erroneously denying modification is that maintenance cannot be discharged in bankruptcy. (In re Marriage of Porter (1992), 229 Ill. App. 3d 697, 699, 593 N.E.2d 1138, 1139; 11 U.S.C. §523(a)(5) (1988).) You have a man here without income and, by now, 12 months after May 1, 1992, probably without a net worth. You have the maintenance obligation increasing because funds are not available to make payments. Maintenance must be abated retroactive to the filing of Larry’s petition. Any other decision threatens to condemn Larry to lifelong insolvency. A substantial change in circumstances has been shown, and the case should be reversed and remanded with directions to enter an order to abate maintenance retroactive to filing of the petition to modify.

Our holding that the trial court’s decision was contrary to the manifest weight of the evidence is based upon the evidence actually presented to the trial court and the required conclusions therefrom. If there is a substantial change in Larry’s financial status in the future, such as a lucrative lease arrangement of the farm assets or in the nature of substantial employment, then Sheryl shall be able to seek restoration of maintenance benefits. See HI. Rev. Stat. 1991, ch. 40, par. 510(a).

Reversed and remanded with directions.

STEIGMANN, P.J., concurs.

JUSTICE COOK,

dissenting:

I respectfully dissent. I agree with the proposition that in maintenance cases, as in child-support cases, “The Act is geared towards a present ability to pay support and does not suggest in its terms that possible future financial resources of a party may also be taken into account.” (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 134, 416 N.E.2d 785, 792 (child support); see also In re Marriage of Moore (1983), 117 Ill. App. 3d 206, 209, 453 N.E.2d 102, 105 (child support).) Maintenance should generally be based on the financial situation which exists on the date of trial; anticipated increases in income or expenses may be dealt with as they occur, in subsequent orders.

There are limits to this general rule. When a payor of maintenance has income which fluctuates, such as farm income, it would be ridiculous to allow the payor to abate maintenance during a month when he has no income, then require the payee to petition to reinstate maintenance the next month. Likewise, where the payor has left one job and is about to begin another it makes no sense to abate maintenance based on lack of income during the interim. A court need not limit itself to an award based on current income when that income is unusually low, or where the payor is likely to receive a bonus later in the year. In re Marriage of Butler (1982), 106 Ill. App. 3d 831, 838, 436 N.E.2d 561, 565 (court gave no weight to recent decline in earnings); In re Marriage of Reyna (1979), 78 Ill. App. 3d 1010, 1014, 398 N.E.2d 641, 645 (court considered past income, although it was uncertain whether it would continue); In re Marriage of Garelick (1988), 168 Ill. App. 3d 321, 327, 522 N.E.2d 738, 742 (court considered payor might receive a bonus).

I would be willing to consider any evidence that Larry’s current no-income status is reasonably expected to continue, or that Larry’s anticipated income is less than what he experienced in the past. Larry, however, offered no testimony that he would be without work for a substantial period of time. The evidence showed that Larry was ready to enter into a new hog operation, or do carpenter work, or perhaps both. Larry did offer testimony as to his anticipated income, but that testimony was inadequate. The party seeking, modification of a maintenance order bears the burden of persuading the trial court that a change in maintenance is justified. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 287, 469 N.E.2d 167, 176; In re Marriage of Lenkner (1993), 241 Ill. App. 3d 15, 19, 608 N.E.2d 897, 900.) The majority’s focus on the interim between jobs improperly reverses the burden of proof, imposing upon Sheryl the obligation to prove Larry’s income in order to restore maintenance benefits at a later date. The burden instead should be on Lany to seek a reduction in maintenance when the evidence is available to show that a reduced level of maintenance would be proper.

The majority opinion states it is improper to look beyond Larry’s current no-income period, but then indicates that. Larry will not be able, because of lack of collateral and credit, to restart his business. This court may know better than the trial court, or even Larry, what it takes to operate a hog business, but that knowledge should not excuse Larry’s failure to present evidence. A showing that some significant misfortune has taken place does not always mean maintenance will be terminated; reduced income may warrant reduced maintenance, and it was Larry’s burden to present evidence establishing an appropriate level. (In re Marriage of Krupp (1990), 207 Ill. App. 3d 779, 790-91, 566 N.E.2d 429, 436 (showing of substantial change in circumstances does not shift burden to payee to establish right to maintenance).) Larry did attempt to show what his anticipated income would be, but his evidence was very weak (the majority describes it as “scanty”). (245 Ill. App. 3d at 819.) The majority opinion actually is more persuasive than the evidence presented, sets out the facts much more clearly than Larry did, and resolves some conflicts in his testimony.

The most important testimony in this case concerned Larry’s anticipated income. At the May 15, 1992, hearing Larry testified he had been contacted by approximately eight people about the possibility of leasing or renting his facilities. He was interested in a farrow-to-finish operation which would include all phases: breeding, farrowing, and finishing. Compensation would not be sensitive to hog prices, but would be based on the number of hogs put through the operation. Larry would provide buildings, utilities, repairs, taxes, insurance on buildings, and “the labor, if that’s the avenue you chose. Not all of them [the potential leasing arrangements] would be labor involved.” The lessee would provide hogs, feed, medications, vet service up to a point, and insurance on the hogs if desired. In his financial affidavit (filed as an exhibit) Larry estimated his monthly payments on notes, mortgage, taxes, and utilities would be $2,837.83. He multiplied that figure by 12 to come up with $34,053.96, and concluded:

“The annualized cost of operating the hog operation for someone else on a lease at that time becomes $34,053.96 per year. Even if I earn $4,000 gross per month on the working lease my pre-tax annualized earnings will be under $14,000.00 per year.” The only testimony regarding expected income was this:
“Q. [By respondent’s attorney:] What do you hope to be able— hope to be able to obtain in a gross payment before expenses on a lease situation based upon the capacity of your hog operation?
A. [By Larry:] Well, I have to have enough to cover the expenses that are listed there yearly plus some living expense for myself. That would have to be 34 thousand annually.”

The best answer Larry could give, when his attorney asked what his income would be, was that he would have to have enough to cover his debts “plus some living expense for myself.” What Larry has to have provides no clue what the operation might actually produce. Larry testified he would receive a set amount for each hog, but did not testify what that amount was. There was no testimony how many hogs could be raised each month. There was no testimony what amount of expenses might be saved in a hog operation lease. It is interesting that Larry does not propose to liquidate his hog operation, as the majority suggests he should, but believes that he can continue in one form or another. It is also interesting that Larry constructed the $50,000 hog building in late 1990, and paid for that building within two years by two Farm Credit intermediate loans which were paid off through liquidation of his hogs. Rapid payment of long-term debt can distort an individual’s ability to pay his debts as they become due. Larry testified he was unable to get additional financing through Farm Credit, but the only other place where he sought credit was Magna Bank, and he had not heard back from them.

It was Larry’s petition and Larry’s burden of proof, and based on the evidence presented and the standard of review, the trial court did not abuse its discretion in denying the petition to modify maintenance. I would affirm the decision of the trial court.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    JEFFREY L. NORMAN, Plaintiff-Appellee, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF ZION et al., Defendants-Appellants (Ralph G. Schaffer et al., Defendants).
    Second District
    No. 2 — 92—0979
    Opinion filed May 20, 1993.

      Law Office of James S. Tukesbrey, of Waukegan (James Scot Tukesbrey, of counsel), and Michael J. Cummins, of Cummins & Mardoian, of Lake Forest, for appellants.
    Daly & Daly, of Waukegan (Dennis P. Daly, of counsel), for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Jeffrey Lee Norman, was dismissed from his job as a police officer following a hearing before defendant, the board of fire and police commissioners of the City of Zion (Board), regarding charges that he violated police department rules. Plaintiff filed a complaint for administrative review in the circuit court of Lake County against the Board and defendant Lloyd E. Detienne, Jr., the Zion police chief (chief). While the court affirmed the Board’s findings that plaintiff was guilty of violating department rules, it also found that the Board erred by depriving plaintiff of a hearing in aggravation and mitigation. Accordingly, the court set aside the order terminating plaintiff and remanded the matter for such a hearing. Subsequently, the Board again ordered plaintiff’s dismissal from the department.

The hearing in aggravation and mitigation was then reviewed by the court as part of the administrative review proceedings. The court reversed the dismissal order and again remanded the matter to the Board, this time with directions to order disciplinary action short of dismissal. Both the Board and the chief filed motions for reconsideration. Ultimately, the court ordered the Board to impose on plaintiff a 30-day suspension without pay, instead of discharge. The Board then filed this appeal, which was subsequently joined by Chief Detienne.

The pertinent facts underlying this case, as revealed at the Board hearings, are as follows. Plaintiff, a full-time police officer for the City of Zion, injured himself on September 21, 1989, while attempting to break up a fight between two teenagers. He described the injury as something like an electrical shock that ran down both legs and momentarily rendered him unable to walk. Shortly afterwards, plaintiff was taken to a hospital emergency room. The next day he went to see his family doctor who, in turn, referred him to Dr. Chhabria, a neurologist.

After taking a history and conducting an examination, Dr. Chhabria’s impression was that plaintiff had acute lumbar, or lower back, strain with radiculopathy, meaning an effect on the nerves as they come out of the spine. The doctor also initially ruled out a herniated disk and doubted that plaintiff had an interspinal injury. Dr. Chhabria advised plaintiff to stay off work and provided documentation to that effect for plaintiff’s employer.

On subsequent visits, Dr. Chhabria performed additional tests, all of which yielded normal or only slightly abnormal results. Upon reviewing a CT scan of plaintiff, Dr. Chhabria felt that there was a disk bulging in plaintiff’s lower spine and opined that such a condition would be a cause of plaintiff’s pain. The doctor testified that it is usually the inflammation in the ligaments and structures around the bulging which causes the pain, rather than the bulging disk itself. Basically, Dr. Chhabria testified that he had found no indication of nerve damage, although the straight-leg-raising test did indicate nerve root irritation. The doctor prescribed traction for plaintiff.

On October 27 plaintiff indicated to Dr. Chhabria that he was getting good relief from the traction, his back movements were improving, and he was beginning to do back strengthening exercises. Dr. Chhabria advised him to return to work and prepared a certificate indicating that plaintiff could return to work without restrictions.

Upon returning to work on October 31, 1989, plaintiff resumed the same duties he had been doing before his injury and worked full time for the next 10 months. On August 24, 1990, he complained to Dr. Chhabria of back and neck pain and pain radiating down his left leg. Plaintiff indicated that he had slowed down in trying to do his duties, i.e., he could not quickly get in and out of his squad car, could not run or jump to apprehend criminals, and was afraid he might endanger his fellow officers. Plaintiff made no report to the doctor of any new injury. Dr. Chhabria did not examine plaintiff but told him to stay off work for a week. Following this visit, an MRI scan was done on plaintiff which showed the bulging disk in his lower back. Dr. Chhabria again explained that the disk itself was not necessarily putting pressure on the nerve, but the pain could be caused by inflammation in the ligaments and the soft tissue. When asked whether an MRI looks at soft tissue, the witness stated that it would not see the inflammation in the ligaments.

On September 11 and November 2, plaintiff still complained of pain, and Dr. Chhabria again told him to stay off work. Although he did not examine plaintiff at this time, Dr. Chhabria talked to him about the possibility of having a myelogram performed. On redirect examination, the doctor explained that it was not necessary to test the plaintiff every time he saw him because most of the findings had been the same ever since he had initially examined plaintiff. Dr. Chhabria ultimately told the plaintiff he could work as a police officer only if he could do a desk job or light-duty work.

While the record is not altogether clear as to dates, it appears plaintiff requested light-duty late in 1990 or early in 1991 but was denied. Chief Detienne cited the light-duty policy, which defined light-duty as work necessary to accomplish the mission of the department, and stated that the department would not create “ ‘makework’ ” light-duty for any officer. Furthermore, light-duty assignments could be denied when an officer had no reasonable expectation of returning to regular duty within 90 days. The chief testified that he could not give plaintiff light-duty because there was no such duty available at that time and plaintiff had already applied for a disability pension, thus indicating he did not believe he could be back to his regular duties within 90 days. The record reflects that plaintiff subsequently withdrew his application for a pension.

Although Dr. Chhabria characterized plaintiff’s problem as “very minor at this point,” he testified that he would not advise plaintiff to return to the kind of job, i.e., as a police officer, that plaintiff had explained to him. In essence, on direct examination Dr. Chhabria indicated that plaintiff could very easily reinjure his back at that particular kind of job and that, if he did so, he would have a lot more problems, there being no good cures for back problems. On cross-examination, Dr. Chhabria confirmed that his concern about plaintiff returning to work, and the reason he told plaintiff not to go to work as a police officer, was that plaintiff might reinjure himself.

The evidence deposition of Dr. Ronald Pawl was submitted to the Board by counsel for Chief Detienne. Dr. Pawl, a neurosurgeon, had seen plaintiff in October 1990 at the request of the employer’s worker’s compensation administrator. The doctor testified that he had treated many policemen and was aware of a police officer’s duties. Dr. Pawl’s medical opinion as to whether plaintiff could work as a full-time, full-duty policeman directly conflicted with that of Dr. Chhabria.

Dr. Pawl took a history from plaintiff and then examined him. Plaintiff’s examination was normal. The doctor also reviewed the results of the examinations and tests that had been carried out by Dr. Chhabria. The electrodiagnostic study showed that there was no nerve damage. Neither the CT scan nor the MRI yielded findings to demonstrate any competent cause for continued complaints of pain.

In marked contrast to Dr. Chhabria’s testimony, Dr. Pawl indicated that an MRI could show inflammation of ligaments. He characterized the MRI as one of the more competent tests for diagnosing diskitis, or inflammation of the disk. According to this witness, plaintiff’s MRI did not show any inflammation of any ligaments or soft tissue areas around the bulging disk in his lower back. Nor did the test reveal encroachment upon, or pinching or compression of, the nerve roots. Dr. Pawl rendered the opinion that, as of the time he saw him, plaintiff was medically capable of carrying out the activities of a police patrolman without restrictions, including running, getting in and out of an auto quickly, lifting, wrestling or subduing offenders, or climbing stairs or ladders. Finally, the witness opined that plaintiff needed no further medical or rehabilitative care.

On cross-examination counsel brought out that Dr. Pawl had seen plaintiff only once with regard to the relevant injury, that the doctor’s examination of plaintiff took only about three to five minutes, and that the entire interview with plaintiff lasted somewhere between 15 and 30 minutes. Under very close questioning, the doctor explained why he could find no competent cause for plaintiff’s pain. Like Dr. Chhabria, Dr. Pawl indicated that a protruding disk, in and of itself, does not result in pain. Rather, the nerve must be entrapped or pinched between a portion of the disk and the bone. This can occur when a disk herniates or ruptures, or when there is a narrowing of the spinal cord. However, none of these possible causes showed up in plaintiff’s test results. Too, a pinched nerve does not function properly and an examination so demonstrates. The examinations of plaintiff reflected no improper nerve function.

In other testimony on cross-examination Dr. Pawl stated that, if plaintiff’s condition had not changed since the October 1990 examination, he would not say plaintiff was a candidate for a pain clinic. This was because plaintiff’s problem was neither medical nor rehabilitative in nature. However, according to the witness, there was a major socioeconomic issue involved, such an issue is a competent source for stress, “and stress is the single most common cause of complaints of neck and back pain.” Dr. Pawl emphasized that the socioeconomic issue was not a medical or rehabilitative problem.

When asked if he felt plaintiff was at any greater risk of injury than anyone else because of the bulging disk in his back, Dr. Pawl responded in the negative since almost everybody has a degenerated disk of some sort. He added that people who are completely free of degenerated disks are at less risk of suffering an injury like plaintiff’s than those who already have a degenerated disk because a degenerated disk is not as strong as an undegenerated disk. When asked if he would be comfortable with the risk to plaintiff by immediately putting him back on the street, Dr. Pawl said he would. The doctor added, however, that he was not sure plaintiff was in shape to be a police officer but that, with conditioning, he would allow him to go back to work. The witness further explained that nothing medically would prevent plaintiff from working, but he would stress to plaintiff, as he stressed to all police officers, paramedics, and athletes, that “strength is their protector against troubles with disks.” By conditioning, the doctor meant working out in any weight room to improve the strength in plaintiff’s musculature. Dr. Pawl stated that plaintiff was not more apt to be injured because of the protruding disk. At oral argument counsel indicated that it was after the examination by Dr. Pawl that plaintiff requested light-duty work.

Dr. Pawl had put his findings in two letters to the worker’s compensation administrator, dated October 18, 1990, and November 5, 1990. Copies of these letters were forwarded to Chief Detienne. The chief testified that in November 1990 the department was shorthanded and, in reliance on Dr. Pawl’s conclusions, he ordered plaintiff back to work on November 19, 1990. Sergeant Ward telephoned plaintiff around 2:30 p.m. and told him to report at his regularly scheduled time of 3 p.m. Plaintiff did not report to work that day or any day thereafter up to the time of the hearing.

On December 19, 1990, based on plaintiff’s failure to report to duty, the chief brought charges against plaintiff before the board of fire and police commissioners. The Board found plaintiff guilty of violating the department rules pertaining to reporting for duty and absenteeism, determined that cause for discharge existed, and ordered plaintiff removed from his position as a member of the police department of the City of Zion. Plaintiff sought administrative review of the Board’s findings and decision.

At the court ordered hearing in aggravation and mitigation, testimony regarding minor incidents of improper conduct on plaintiff’s part was presented. Plaintiff either contradicted the testimony or offered his explanation for the conduct. None of these incidents had resulted in a written reprimand. Following the hearing the Board again imposed a sanction of termination. When the matter was again remanded with directions to enter a lesser sanction, both the chief and the Board moved for reconsideration. In essence, these motions indicated that the parties wished to appeal the trial court order but believed they could not do so since the order did not direct the Board to impose a specific sanction. The trial court responded by directing the Board to impose upon plaintiff a 30-day suspension without pay. The court added that there was no just reason to delay the enforcement or appeal of the order. This appeal followed.

As a preliminary matter, plaintiff asserts that the notices of appeal filed by the Board and the chief should be dismissed. Noting that the Board never met and imposed the 30-day suspension without pay, as directed by the court, defendant argues that the order appealed from is not final and appealable since it did not terminate the litigation between the parties. There is no merit to plaintiff’s position.

Plaintiff cites Kvidera v. Board of Fire & Police Commissioners (1988), 168 Ill. App. 3d 380, where the court dismissed the board’s appeal. He focuses on the following language used by the court: “An order remanding the cause to the agency to impose a sanction other than the one imposed is not final and appealable because it does not terminate the litigation between the parties on the merits.” (Kvidera, 168 Ill. App. 3d at 381.) Read out of context, this language appears to support plaintiff’s position. However, the language does not refer to an order like the one at issue here. In Kvidera the challenged order remanded the matter to the board for imposition of “ ‘an appropriate lesser sanction.’ ” (168 Ill. App. 3d at 381.) The Kvidera court observed that if it were to affirm that order, the board would need to rule again on the appropriate sanction, and either party would then have the option of appealing to the circuit court once more. Thus, the litigation had not been terminated. The court concluded that, absent a contempt citation, “to have an appealable order the circuit court should either affirm or direct the board to impose a specific sanction.” Kvidera, 168 Ill. App. 3d at 382.

In contrast to the order at issue in Kvidera, the order here directed the Board “to impose the sanction of a 30-day suspension without pay instead of discharge.” We note that the Kvidera court relied on Mitrenga v. Martin (1982), 110 Ill. App. 3d 1006, another case where the court dismissed the board’s appeal. The order in Mitrenga directed the board to “ ‘consider an alternative sanction to that of discharge.’ ” (Mitrenga, 110 Ill. App. 3d at 1007.) In determining that this order required the board to rule again on the issue of discharge, the court said: “In order to have a final and appealable order, the judgment must terminate the litigation between the parties on the merits so that if affirmed, the trial court need only execute judgment.” (Mitrenga, 110 Ill. App. 3d at 1007.) Unlike the situation in Mitrenga, the trial court here directed the Board not to consider and again rule on what the sanction should be, but to impose a specific and defined sanction. Hence, neither party has the option of once more appealing to the circuit court since there is no Board action or decision to appeal. All that remains, pending affirmation by this court, is for the trial court to execute judgment. Accordingly, the order appealed from terminated the litigation between the parties and is final and appealable.

We turn now to the merits of the case. The scope of review of an administrative agency’s decision as to discharge is generally a two-step process. First, the court is to determine whether the agency’s guilt finding is contrary to the manifest weight of the evidence. Second, the court must decide whether the agency’s findings of fact support its conclusion that there is cause for plaintiff’s discharge. (Launius v. Board of Fire & Police Commissioners (1992), 151 Ill. 2d 419, 435; Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 105; Swanson v. Board of Police Commissioners (1990), 197 Ill. App. 3d 592, 601.) The trial court expressly ruled that the Board’s guilt findings were not contrary to the manifest weight of the evidence, and plaintiff has not appealed that ruling. Consequently, the only issue to be decided is whether the Board properly concluded that there was cause to terminate plaintiff.

“Cause” has been defined as some substantial shortcoming, recognized by law and public opinion as a good reason for termination, which renders the employee’s continued employment detrimental to the discipline and efficiency of the service. (Launius, 151 Ill. 2d at 435; Walsh, 96 Ill. 2d at 105; Fantozzi v. Board of Fire & Police Commissioners (1963), 27 Ill. 2d 357, 360.) An administrative agency’s finding of cause is to be respected, and it should be overturned only if it is arbitrary and unreasonable or unrelated to the requirements of the particular service involved. (Launius, 151 Ill. 2d at 435; Swanson, 197 Ill. App. 3d at 606.) The question is not whether the court would select a more lenient sanction than discharge if it were making the initial determination, but whether the agency acted arbitrarily or unreasonably or imposed discipline unrelated to the needs of the service. Sutton v. Civil Service Comm’n (1982), 91 Ill. 2d 404, 411; Swanson, 197 Ill. App. 3d at 606.

Plaintiff was specifically found guilty of violating department rules in that he (1) failed to report for duty on November 19, 1990, after being ordered to do so, and (2) failed to report for duty any time after November 19, 1990. Ordinarily, we believe these violations would constitute cause for discharge. The chief contends, and we consider it obvious, that the need to have a police officer report for duty is fundamental to the needs of the police department. Too, in a police department the chief must command the respect and obedience of all officers in order to establish and maintain a leadership role. (Martin v. Matthys (1986), 149 Ill. App. 3d 800, 808.) If each officer was permitted to decide for himself whether an order was lawful and reasonable, the discipline inherent in a paramilitary organization such as a police department would be destroyed. (Launius, 151 Ill. 2d at 436, citing Martin v. Matthys (1986), 149 Ill. App. 3d 800, 808.) Hence, the continued employment of a police officer who failed to report for duty despite an order to do so would generally be detrimental to the discipline and effectiveness of the department. We also think the law and public opinion usually recognize such conduct as a good cause for termination. If there were nothing more to this case than blatant or unfounded refusal to obey an order, it would be readily apparent at this point that the Board’s finding of cause was neither arbitrary nor unrelated to the requirements of the department. However, the facts here are neither so direct nor so simple.

To begin with, the record shows that plaintiff complained to Dr. Chhabria of intermittent pain in his back and leg throughout the year following the injury. Although Dr. Chhabria considered plaintiff’s problem to be minor, it is apparent from his testimony that he believed plaintiff’s pain could be caused by inflammation in the ligaments and soft tissue around the protruding disk, even though, again according to Dr. Chhabria’s testimony, he had no objective evidence of such inflammation. Dr. Pawl contradicted Dr. Chhabria as to objective evidence of inflammation and testified that he could find no competent medical cause for plaintiff’s continuing pain. We note, however, that Dr. Pawl acknowledged that trauma can injure a disk and cause pain. More significantly, though, Dr. Pawl never testified that plaintiff could not be feeling pain. On the contrary, he specifically denied saying that. In fact, despite his testimony that he could find no cause “mechanically or on the examination” for plaintiff’s pain, Dr. Pawl stated that plaintiff was likely suffering from stress, which is the leading cause of neck and back pain. In essence, Dr. Pawl acknowledged that plaintiff could be feeling the pain he described. In summary, none of the evidence showed that plaintiff could not be experiencing continuing pain.

The evidence pertinent to the presence of pain must be viewed along with plaintiff’s dialogue with his physician. By the time the chief ordered him to report for duty, plaintiff had been under Dr. Chhabria’s care for almost a year and had repeatedly been told he should not return to full-duty police work. According to the record, plaintiff first saw Dr. Chhabria on October 5, 1989, shortly after the injury occurred. The doctor examined plaintiff and told him how to take care of his back. It is evident that after this Dr. Chhabria became plaintiff’s regular doctor, at least with regard to the injury and plaintiff’s complaints of back pain. Plaintiff visited the doctor again on October 13 and 27 and in November and December 1989. The visits continued in January, April, and July 1990, and on a monthly basis thereafter. Oyer this course of time, Dr. Chhabria performed tests; reviewed plaintiff’s CT and MRI scans; prescribed heat, traction, and muscle relaxants; advised plaintiff to lose weight; suggested further testing; and generally followed up on plaintiff’s case. It was in this context of continuing care that Dr. Chhabria told plaintiff to stay off work, starting on August 24, 1990, after plaintiff complained of continuing pain and slowing down on the job.

The chief makes much of the fact that Dr. Chhabria did not himself reexamine plaintiff before authorizing him to stay off work in August 1990. However, Dr. Chhabria had been seeing plaintiff on a regular basis, was familiar with his condition, and continued to either order specific tests or suggest to plaintiff that certain tests should be done. In any event, it is clear that, by the visit of September 20, 1990, after Dr. Chhabria had seen plaintiff’s MRI scan, the message conveyed to plaintiff by his own doctor was that he should not resume his full duties as a patrolman. He was told that to do so would put him at risk of an injury which could cause him more, and more permanent, problems. Dr. Chhabria testified that he did not release plaintiff to go back to work. In fact, in October 1990 Dr. Chhabria recommended to plaintiff that he seek rehabilitation since the doctor did not anticipate plaintiff would be able to return to active police work. By the time of his November 2, 1990, visit to Dr. Chhabria, plaintiff knew the results of Dr. Pawl’s examination. He discussed Dr. Pawl’s recommendations with Dr. Chhabria. The doctor told plaintiff he did not agree with Dr. Pawl and again advised that plaintiff could work as an active policeman only if he did not do too much bending and lifting. Dr. Chhabria also discussed with plaintiff the results of an examination done by Dr. Levine in which Dr. Levine suggested that a myelogram and several other procedures be done for better evaluation of plaintiff’s back problems.

In contrast to the active and lengthy doctor-patient relationship between plaintiff and Dr. Chhabria, plaintiff saw Dr. Pawl only once relative to the injury he sustained in September 1989. According to Dr. Pawl’s own testimony, his examination of plaintiff took only about five minutes. The entire visit with plaintiff, including the examination, lasted only 15 to 30 minutes. Dr. Pawl had not yet received the results of plaintiff’s MRI scan. Consequently, the doctor did not communicate his findings or any diagnosis to plaintiff at that time.

Collectively, the evidence is compelling that on November 19, 1990, when he was ordered to report for duty, plaintiff could have believed himself to be caught between two impossible choices. Plaintiff’s own doctor, who had seen him and treated him for over a year, had told him not to return to his usual duties. Following his doctor’s orders, however, possibly meant risking the loss of his job. On the other hand, the chief issued his order in reliance on Dr. Pawl’s report — a report based on one five-minute examination and 30-minute maximum interview with plaintiff. Yet, following the chief’s orders carried the possible risk of a permanent, disabling injury. Under these circumstances we think the Board’s finding of cause to terminate plaintiff was arbitrary and unreasonable.

Although counsel attempted to pinpoint weaknesses in Dr. Chhabria’s qualifications, the evidence as a whole conveys the impression that the doctor was a dedicated, capable physician. His status as a specialist in neurology undoubtedly enhanced plaintiff’s perception of the doctor’s knowledge and expertise. In virtually the identical circumstances, the court in Pruitt v. Schultz (1992), 235 Ill. App. 3d 934, 944, stated: “Dependence and reliance on [the doctor’s] medical advice is therefore to be expected.” The Pruitt court noted that in Witherell v. Weimer (1981), 85 Ill. 2d 146, our supreme court placed great emphasis on the doctor-patient relationship. Of this relationship the Witherell court observed: “There is no real doubt, of course, that the relationship between a doctor and his patient is one in which the patient normally reposes a great deal of trust and confidence in the doctor, accepting his recommendations without question.” (Witherell, 85 Ill. 2d at 159.) While both Pruitt and Witherell are medical malpractice cases, those courts’ comments on the relationship between doctor and patient are equally valid in any context. We do not consider it reasonable to punish plaintiff to the extent of terminating his employment merely because he understandably trusted in and took the advice of Dr. Chhabria that he should not resume his full police duties.

We are further convinced that a finding of cause for discharge was unreasonable in light of plaintiff’s conduct after the initial hearing at which Dr. Pawl’s deposition testimony was offered. During the hearing in aggravation and mitigation in April 1992, plaintiff testified without contradiction that he believed he was able to return to work. He had been following a program of diet and exercise to get himself in condition, as recommended by the doctor and physical therapist he had seen for the Zion police pension board. Although a hearsay objection was sustained when counsel asked plaintiff if his doctors had told him he could return to work, in our view plaintiff demonstrated that he had reasonably come to believe that, with conditioning, he could return to full-time police duties. He also indicated he was making a sound effort to get into the condition which would ensure his safety in the event he was allowed to return to work. Plaintiff’s post-hearing conduct reflects a good-faith desire to remain on the police force and undercuts the implication that his failure to report to duty was totally unwarranted. In this regard, we take judicial notice that when a full-time police officer is injured in the line of duty, the officer is entitled by statute (111. Rev. Stat. 1989, ch. 70, par. 91) (the Public Employee Disability Act) to continue to receive full salary for up to one year in relation to the same injury.

Based on all of the facts, we do not believe public opinion would recognize plaintiff’s conduct as a good reason for termination. (See Launius, 151 Ill. 2d at 435.) In the circumstances in which he found himself, plaintiff’s failure to report for duty did not amount to the kind of shortcoming which, if he remained as a police officer, would be detrimental to the discipline and efficiency of the service. To hold otherwise would create an atmosphere of jeopardy and great uncertainty for all those police officers who, in reliance on the expertise and direction of their physicians, do not report for duty. A situation would be created where, no matter how ill or disabled the officer was, and regardless of his doctor’s advice, he would have to report when ordered to do so or risk losing his job. In our view, such a situation would be far more detrimental to the discipline and efficiency, not to mention the morale, of a police department than was plaintiff’s conduct in this case. We conclude that, since the Board’s finding of cause was arbitrary and unreasonable, the trial court correctly overturned it.

This case does not present a situation in which the police officer’s conduct is so outrageous that he must be discharged. (See Kloss v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 252 (misuse of a weapon); Carrigan v. Board of Fire & Police Commissioners (1984), 121 Ill. App. 3d 303 (misuse of a weapon); Sutton v. Civil Service Comm’n (1982), 91 Ill. 2d 404 (correctional supervisor asked inmate how much it would cost to kill the warden).) Nor did plaintiff exhibit the “[flagrant, deliberate, and continuing disobedience” condemned in Martin v. Matthys (1986), 149 Ill. App. 3d 800, 808, where the officer accepted supplemental employment outside the village, even though he had been told that such work was never allowed and permission to accept such a job had been denied by the chief; he continued with the supplemental job after again being informed in writing that he could not do so; he wrote to the village manager that he intended to accept supplemental employment until the matter was set-tied; and he had been suspended on two previous occasions for a variety of violations and improper behavior. In contrast, not only was plaintiff’s conduct here not outrageous in and of itself, but plaintiff had never previously received so much as a written reprimand.

We do not perceive this case to be like Launius v. Board of Fire & Police Commissioners (1992), 151 Ill. 2d 419, either. The discharged officer in Launius was already on duty when heavy rains created flooding and an emergency situation in the city. Fearing for the safety of his family, the officer asked for and was denied permission to leave his post but left anyway. Thereafter, he neither returned to duty nor communicated with the department. He was out of contact with the department for 12 hours although the evidence showed that, after he checked on his family’s safety, the threat of flood receded and he could have returned to the station in time to complete his assigned shift. At no time did plaintiff or his wife contact the police or fire department for assistance. Unlike the officer in Launius, plaintiff in this case had not been working for three months prior to the order to report for duty. He did not abandon a post, in violation of a direct order, during a time when he was particularly needed. And he certainly did not stay out of contact with the department during a time when he could and should have been on duty. The officer in Launius not only left his post in direct defiance of his orders, but he also chose not to return and not even to communicate with the department, even though there was no compelling reason to do so. Plaintiff here failed to respond to orders, not out of defiance, or even as a matter of his own willfulness, but simply because his doctor, on whom he relied for his own health and safety, advised him not to do so. In our view, Launius is not controlling.

Plaintiff relies heavily on Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101. While we do not find it dispositive, we recognize that Walsh more closely resembles this case than do the authorities mentioned above. The officer in Walsh had misused his weapon, an offense which warranted the board’s decision to discharge him. However, at the time of the offense the officer had been placed on medical-disability suspension and had been granted a pension. Although the matter was ultimately remanded for additional evidence, the court agreed in principle with the officer’s argument that it was arbitrary and unreasonable to grant a medical suspension and disability pension on the basis of an officer’s psychiatric problems and then discharge him and take away his pension when the psychiatric condition caused him to act in a manner that warranted discharge.

Unlike the situation in Walsh, there is no evidence that plaintiff in this case had been placed on medical suspension by Chief Detienne. Too, plaintiff had withdrawn his application for a disability pension. On the other hand, while it is not altogether clear whether Dr. Chhabria provided plaintiff with documentation to excuse him from work after the week of August 24, 1990, there is evidence in the record that plaintiff was on injury-related leave and receiving worker's compensation after that week. While the chief urges that plaintiff did not present evidence that he was off work in August 1990 as a result of his injury, the record is clear that Dr. Chhabria had never completely stopped treating him for that injury. Thus, the facts resemble those of Walsh to the extent that plaintiff’s failure to report for duty was a result of the medical problems which resulted in him being on injury-related leave in the first place. Walsh is persuasive that we have reached the right conclusion.

For all of the reasons set forth above, the order of the circuit court of Lake County is affirmed.

Affirmed.

McLAREN and COLWELL, JJ., concur.


author: JUSTICE QUETSCH

text:
    OSAGE CORPORATION, as Assignee of Beverly Bank Matteson, Plaintiff, v. MICHAEL B. SIMON et al., Defendants and Counterdefendants-Appellants (La Salle National Bank, as Successor Trustee to Northwest National Bank of Chicago, as Trustee, et al., Defendants; First Cook Bank for Savings, Defendant and Counterplaintiff-Appellee).
    Second District
    No. 2 — 92—0449
    Opinion filed April 30, 1993.
    Rehearing denied June 15, 1993.

      Jay D. Freidin, of Schwartz, Freidin & Associates, and Robert P. Sheridan, of Robert A. Clifford & Associates, both of Chicago, for appellants.
    Edward P. Freud, of Ruff, Weidenaar & Reidy, Ltd., and Sylvia Neumann, of Pierce & Associates, both of Chicago, for Osage Corporation.
   JUSTICE QUETSCH

delivered the opinion of the court:

Defendants, Michael and Heidi Simon, who are husband and wife, are coholders of the beneficial interest in residential property held in trust by La Salle National Bank (La Salle). Osage Corporation (Osage), as assignee of Beverly Bank Matteson (Beverly), sought a judgment foreclosing a trust deed on the property. First Cook Bank for Savings (First Cook) filed a counterclaim to foreclose a mortgage on the same property.

Osage received a judgment of foreclosure which defendants did not appeal. The trial court next awarded a judgment of foreclosure to First Cook, dismissing as legally inadequate the Simons’ affirmative defenses to First Cook’s claim (see 111. Rev. Stat. 1991, ch. 110, par. 2 — 615).

On appeal, the Simons argue that, because their affirmative defenses to First Cook’s action are legally sufficient, the court should not have entered judgment as a matter of law for First Cook. We hold that the Simons adequately alleged that First Cook’s mortgage was invalid because it was the result of duress against Heidi Simon. We reverse the judgment for First Cook and remand for further proceedings on First Cook’s action.

On May 14, 1990, Beverly filed a complaint to foreclose its trust deed on the property, alleging that the property secured a $65,000 note which was in default. Appended to the complaint were a copy of the trust deed, signed by an agent of La Salle, and a copy of the promissory note, which was also signed by a La Salle agent and named the Simons as “individual grantors.”

On June 21, 1990, First Cook filed its counterclaim, alleging the following. La Salle owned the property; the Simons owned the beneficial interest in the trust of which La Salle was trustee. The property was subject to a mortgage recorded February 6, 1990; this mortgage secured a debt of $185,890.47 for which Michael Simon alone was personally responsible. The mortgage was in default as the mortgagor had not timely paid principal and interest. As of June 18, 1990, at least $193,946.27 was due First Cook. First Cook requested a judgment of foreclosure plus attorney fees, costs, and expenses.

Attached to the counterclaim were (1) a copy of the mortgage; (2) a legal description of the property; and (3) a copy of the note, dated February 2, 1990, for $185,890.47. The note is signed by Michael Simon but not by Heidi Simon, and it lists Michael Simon as the borrower. An attached “exhibit,” also signed by Michael Simon, states that the loan is secured by a mortgage on the property, a lien on a car, and a man’s watch.

Horizon Federal Savings Bank (Horizon), one of the named defendants in the counterclaim, filed an answer stating that Horizon, presently in conservatorship with the Resolution Trust Corporation, currently held an interest in the property under a mortgage dated October 23, 1978, and recorded November 21, 1978. Horizon asserted further that it was the owner and holder of a note dated October 23, 1991, for an original principal amount of $100,000. The note was executed by Michael and Heidi Simon. Horizon stated that $82,866.60 was now due under the note, with additional interest still accruing. Also, Horizon stated that its mortgage securing the note was superior to any other interest in the property, including First Cook’s. Horizon attached a copy of the note, which was signed by both Simons as borrowers, and a copy of the mortgage, signed by both Michael and Heidi Simon and listing both Simons as the “mortgagor.”

On September 17, 1990, First Cook moved for a default judgment on its counterclaim, alleging that, after due notice, neither La Salle nor the Simons had filed an appearance or answered the counterclaim. On September 19, 1990, Beverly filed its answer to First Cook’s counterclaim, denying that its interest in the property was inferior to First Cook’s interest. On September 19, 1990, Beverly also moved for a default judgment on its complaint, asserting that La Salle and the Simons had been duly served but had made no appearance, answer, or pleading.

On September 19, 1990, the trial court granted First Cook a default judgment against La Salle and the Simons. However, the court also granted Beverly leave to file an answer to the counterclaim and gave the Simons until October 10, 1990, to answer the complaint and the counterclaim.

On March 27, 1991, Osage, as Beverly’s assignee, moved for summary judgment, alleging that the Simons had not answered the complaint. The trial court granted Osage summary judgment.

On March 27, 1991, First Cook also moved for summary judgment against the Simons on its counterclaim. That same day, the Simons received leave to file their answer to First Cook’s counterclaim. The Simons raised several affirmative defenses which contested the validity of First Cook’s mortgage. They admitted that Michael Simon was the guarantor of a valid and outstanding debt of $185,890.47 owed under a note to First Cook from American Sports, Ltd., whose president was Michael Simon. The Simons also admitted that, as of February 1, 1990, American Sports, Ltd., was in default of its obligations under the note.

The Simons, however, argued that the mortgage securing the otherwise unsecured obligation was invalid. They alleged that, on February 1, 1990, Michael Helikias and Robert Sherrill, respectively the vice-president and the owner of First Cook, demanded immediate repayment from Michael Simon, falsely claiming that Simon and Robert Loffredi, then president of First Cook, had conspired to obtain the money by defrauding First Cook. Helikias and Sherrill threatened that, unless the Simons immediately executed a note and mortgage for the amount in default, the officials would cause the matter to be turned over to the Federal Bureau of Investigation. Thus, according to the Simons, Michael Simon signed the note and mortgage as a direct result of duress by First Cook’s agents.

Attached as an exhibit to the affirmative defenses is a copy of a statement written by Michael Simon and signed by him and Loffredi. The statement, dated 4 p.m. February 1,1990, reads:

“I am signing these said notes *** under the duress of threat of prosecution if I do not sign the $185,890.47 mortgage note on my home.
I was further instructed by Michael Halekias [sic] and Robert Sherrill VR that if I do not sign these notes *** I would be turned over to the FBI immediately and I would be in jail tonight.
They also further stated in the presence of others that I had purposely obtained these loans with the intent to defraud First Cook Bank. Wich [sic] was never my intention. They also stipulated the President of the Bank was Quote in on this.”

On April 11, 1991, First Cook moved to dismiss the affirmative defenses as legally inadequate to allege a claim of duress. First Cook maintained that the mere threat to initiate a criminal proceeding by means available to all members of the community cannot constitute duress. On April 29, 1991, the trial court struck the affirmative defenses with leave to replead.

On May 13, 1991, the court entered a judgment of foreclosure and sale in favor of Osage. It reserved a ruling, pending resolution of First Cook’s counterclaim, on whether First Cook’s interest in the property was superior to Osage’s interest.

The Simons filed amended affirmative defenses, which were stricken with leave to replead. First Cook stipulated that Horizon’s interest in the property was superior to First Cook’s.

On February 21, 1992, First Cook moved for a ruling on its motion for summary judgment. On March 16, 1992, the court entered a judgment of foreclosure and sale. The court held that First Cook had a valid mortgage and that Osage’s lien was subordinate to First Cook’s. The court stated there was no just reason to delay enforcement or appeal of the order (see 134 Ill. 2d R. 304(a)). Also that day, the court entered summary judgment against the Simons on First Cook’s counterclaim. The order stated that the judgment would become final unless, within 14 days, the Simons filed legally sufficient affirmative defenses.

On March 30, 1992, the Simons filed their second amended affirmative defenses to First Cook’s counterclaim. The Simons alleged that the mortgage was invalid because it was the product of duress exerted upon Heidi Simon, who was not liable on the original debt and was innocent of any alleged wrongdoing. The Simons specifically alleged the following. By means of a false threat of criminal prosecution, Helikias and Sherrill forced Michael Simon to direct La Salle to execute the mortgage that First Cook sought to foreclose. Helikias and Sherrill used the threat of criminal prosecution to force Michael Simon to execute personally a note in the amount of the consideration set forth in the mortgage. Immediately after these actions, which took place at First Cook’s Chicago office, Helikias and Sherrill directed Michael Simon and Loffredi to the Simons’ residence, where Heidi Simon was told that Michael Simon would immediately be turned over to the Federal Bureau of Investigation for prosecution and incarceration unless she agreed to sign a direction authorizing La Salle to execute the mortgage that First Cook now sought to foreclose.

The Simons argued second that, because the above-described actions of First Cook’s officials were fraudulent and in bad faith, First Cook had “unclean hands” and could not invoke equitable relief against Heidi Simon.

The Simons’ third affirmative defense, on which both Michael Simon and Heidi Simon relied, was that the mortgage and underlying transaction were invalid as not in compliance with regulation Z of the Federal Truth in Lending Act, contained in the Consumer Credit Protection Act (15 U.S.C.A. §1601 et seq. (West 1982)). The Simons asserted that regulation Z required First Cook to inform the Simons of their right to rescind a credit transaction involving a security interest and that First Cook had not done so. As the right to rescind was still available, the Simons declared they were now rescinding the mortgage; thus, the mortgage was no longer valid or binding.

First Cook moved pursuant to section 2 — 615 of the Code of Civil Procedure (111. Rev. Stat. 1991, ch. 110, par. 2 — 615) to dismiss the affirmative defenses. First Cook argued as before that the Simons did not adequately plead duress. First Cook also maintained that the Truth in Lending Act did not apply because the mortgage and note were undertaken for a business or commercial purpose, although secured by the Simons’ residence.

First Cook also moved pursuant to section 2 — 619(a)(9) of the Code of Civil Procedure (111. Rev. Stat. 1991, ch. 110, par. 2— 619(a)(9)) to dismiss the affirmative defenses. Included with the motion was a February 2, 1990, hypothecation agreement signed by both Michael and Heidi Simon as “pledgor,” i.e., 100% owner of the beneficial interest in the property subject to First Cook’s mortgage. The agreement states that pledgor hereby “hypothecates, pledges, assigns, delivers and transfers” the property to the pledgee, First Cook. The agreement also states that “[i]n the event of any default [by the Simons under the note or loan documents], Pledgee shall have all the remedies for enforcement as provided in the Note and the Loan Documents. Pledgee’s rights under this Agreement, the Note, and the Loan Documents shall be cumulative.” First Cook also attached a copy of a February 2, 1990, “business purpose affidavit” signed by Michael Simon. Finally, First Cook appended an affidavit from a corporate officer stating his personal knowledge that the copies of the hypothecation agreement and business purpose affidavit were true and correct and that the documents were prepared and signed in the ordinary course of First Cook’s business.

On April 13, 1992, the trial court dismissed with prejudice all of the affirmative defenses. The court held that there was no just reason to delay either “the enforcement of the judgment of foreclosure and sale, or the appeal of this final order.” On May 13, 1992, the Simons filed their amended notice of appeal from the orders of April 13,1992, and March 16, 1992.

The Simons argue that the trial court erred in holding that their second amended affirmative defenses were legally inadequate. They concentrate on their allegation that First Cook’s threat to seek criminal proceedings against Michael Simon coerced Heidi Simon into agreeing to the mortgage and that the mortgage was invalid as the product of duress exerted upon a blameless party whose consent was necessary to the mortgage.

Before examining this argument, we hold the trial court properly dismissed the Simons’ other affirmative defenses. That First Cook did not follow a regulation of the Truth in Lending Act is of no moment. The Truth in Lending Act does not apply to extensions of credit primarily for business or commercial purposes. (15 U.S.C.A. §1603(1) (West 1982).) The record, including Michael Simon’s affidavit of business purpose, leaves no doubt that the loan on which the mortgage was based was extended for business purposes (for American Sports, Ltd.), and the fact that it was secured by a mortgage on residential property is not material. See Northwest Federal Savings & Loan Association v. Weisberg (1981), 97 Ill. App. 3d 470, 475-76.

The argument that First Cook is barred by “unclean hands” from enforcing its mortgage depends on the allegation that First Cook procured the mortgage by duress. We need not consider the argument separately. See Weisberg, 97 Ill. App. 3d at 476.

We now consider whether the Simons alleged sufficiently that the mortgage was the product of duress upon Heidi Simon. We note preliminarily that the legal sufficiency of a pleading is a question of law; a court should dismiss a pleading only if it clearly appears that no set of facts based on the pleading will entitle the claimant to relief. (Beverly v. Reinert (1992), 239 Ill. App. 3d 91, 99.) Thus, whether the mortgage actually was a product of duress is not the issue here; we consider only whether the Simons adequately set out such an affirmative defense, entitling them to a factual determination of the matter.

A contract will be voided if it is the product of duress. (Ekl v. Knecht (1991), 223 Ill. App. 3d 234, 241.) Duress exists if a party is induced by the wrongful act of another to make a contract under circumstances which deprive the party of her exercise of free will. (Ekl, 223 Ill. App. 3d at 241; First Security Bank v. Bawoll (1983), 120 Ill. App. 3d 787, 793; Corn Belt Lumber Co. v. Doty (1918), 212 Ill. App. 521.) A wrongful act need not be an illegal act, but may include one that is wrongful in a moral sense. Kaplan v. Kaplan (1962), 25 Ill. 2d 181, 186; Ekl, 223 Ill. App. 3d at 241.

We believe that case law establishes that the Simons adequately alleged that the mortgage is invalid because First Cook procured it by exerting duress upon Heidi Simon. The debt for which Michael Simon was alone responsible was originally unsecured. The mortgage gave First Cook security for the debt, but gave Heidi Simon nothing in return. The Simons allege that Heidi Simon agreed to direct La Salle to execute the mortgage because she was in fear that, otherwise, Michael Simon would face criminal prosecution. Several cases establish that this is a valid allegation of duress.

In Kronmeyer v. Buck (1913), 258 Ill. 586, Buck accused his employee Kronmeyer of stealing from Buck’s business. With Kronmeyer in Buck’s office, Buck threatened to send Kronmeyer to prison (with the aid of a police officer stationed outside the door) unless Kronmeyer executed a deed conveying property to Buck. Buck then demanded that Kronmeyer and a cosigner execute a note for $1,500. They went to the home of Mrs. Staehle, Kronmeyer’s sister. Kronmeyer told his sister that if she did not sign the note, he would go to jail. The plaintiffs, Kronmeyer and Mrs. Staehle, sued to set aside the note as a product of duress.

The supreme court held first that Buck used duress to secure Mrs. Staehle’s consent to the note. The court stressed that she was an innocent third party who was not indebted to Buck in any amount. Noting that Mrs. Staehle signed the note to keep her brother out of jail, the coercive atmosphere under which she signed the note, and the suddenness with which she was informed of her brother’s circumstances, the court reasoned that it was “but natural that she would cling to her brother and seek to aid him *** under the pressure of his importunities ***. *** While no promise of immunity was expressly made, yet it is perfectly clear that both she and Kronmeyer were influenced by the understanding, which was clearly to be implied, that if the matter was adjusted satisfactorily Kronmeyer would not have to go to jail or be prosecuted.” Kronmeyer, 258 Ill. at 595-96.

The court also held that Kronmeyer himself would be able to set the note aside if he executed the note in order to avoid prosecution for the crime that he had not committed. Kronmeyer, 258 Ill. at 597.

In Corn Belt Lumber Co. v. Doty (1918), 212 Ill. App. 521, the appellate court, without citing Kronmeyer, upheld a verdict allowing the defendant to avoid an obligation under a promissory note that she signed as surety for her husband. The court observed that the note that the defendant signed was worth more than twice what her husband owed the plaintiff’s predecessor in interest; the court noted further that the defendant had testified that she signed the note only because the plaintiff’s predecessor threatened to institute criminal proceedings against her husband. Adopting the rule of Adams v. Irving National Bank (1889), 116 N.Y. 606, 23 N.E. 7, the Corn Belt court held that it was well settled that one spouse may avoid a contract induced by the threat of the imprisonment of the other spouse, whether the threat is of a lawful or unlawful imprisonment. Corn Belt, 212 Ill. App. at 523; Adams, 116 N.Y. at 611-12, 23 N.E. at 8-9; Triad Distributors, Inc. v. Conde (1977), 56 A.D.2d 648, 391 N.Y.S.2d 897 (wife may avoid mortgage obtained by threats of imprisoning her husband, whether the threats were of a lawful or unlawful imprisonment).

In Bock v. Felker (1939), 302 Ill. App. 116, the appellate court, relying in part on Kronmeyer, held that Reuben Bock was entitled to avoid the obligation of notes that he and his brother, Harry Bock, whom the creditor had accused of embezzlement, cosigned. The court emphasized that there was no dispute that Reuben Bock had never been accused of wrongdoing and that the evidence compelled the conclusion that Reuben Bock cosigned the notes solely to keep his brother from being prosecuted. Bock, 302 Ill. App. at 127.

The aforementioned cases establish that defendants raised a legally sufficient affirmative defense to First Cook’s action on the mortgage. We find First Cook’s attempts to distinguish these cases unconvincing.

First Cook argues that the affirmative defense of duress was insufficient because there is no allegation that Heidi Simon shared in the power of direction of the beneficial interest. First Cook has waived this challenge to the sufficiency of the pleading by waiting until appellate review to raise this argument. (See Yassin v. Certified Grocers of Illinois, Inc. (1988), 178 Ill. App. 3d 498, 511-12, aff’d in part & rev’d in part on other grounds (1990), 133 Ill. 2d 458.) Waiver aside, this argument lacks merit. The affirmative defense can be read reasonably only to state that Heidi Simon’s direction was necessary to La Salle’s execution of the mortgage. Moreover, it would make no sense for First Cook’s agents to seek Heidi Simon’s agreement or knowledge of the mortgage were the entire power of direction lodged with Michael Simon. Finally, the record establishes that Michael and Heidi Simon are coholders of the beneficial interest in the land trust and that both signed certain documents as “pledgor” or “co-grantors.”

First Cook also argues that Doty is distinguishable because the note involved there was for more than twice the original debt owed by the husband. A fair reading of all the cases we have cited, including Doty, makes it clear that this evidence, though it supported the finding of duress, was not essential to a finding of duress. Here, in any event, the facts as alleged are also one-sided; First Cook received security for an otherwise unsecured loan (owed by a person who had filed for bankruptcy) with no apparent corresponding benefit to defendants other than First Cook’s implicit promise not to institute criminal proceedings against Michael Simon.

First Cook argues further that there is no duress where there has been no arrest of the debtor or pending warrant for the debtor and the creditor simply threatens to invoke the same criminal process that is available to the public generally. (See Youngs v. Simm (1891), 41 Ill. App. 28.) However, the cases we have examined make it manifest that this rule forecloses the defense of duress only for the debtor who is threatened with the consequences of nonpayment; it does not prevent a spouse from arguing duress based on the threatened action against the debtor-spouse. See Kronmeyer, 258 Ill. at 595-96.

Finally, First Cook maintains that this case is distinguishable from the type of situation involved in Doty because here the transaction involved a governmentally insured lender rather than a private lender. First Cook never explains why this fact is relevant to whether the Simons have adequately alleged that Heidi Simon signed the mortgage because her will was overborne by First Cook’s threats. Obviously, there is no difference from her perspective whether the threat emanated from an insured lender or a private party. The argument and the cases cited by First Cook on this issue are simply irrelevant to the facts presented and alleged here.

We conclude that the Simons adequately alleged that the mortgage should be set aside because it was procured by duress against Heidi Simon. Because the trial court’s grant of summary judgment for First Cook was premised on its finding that the affirmative defenses were legally insufficient, the judgment is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

UNVERZAGT and WOODWARD, JJ., concur.