author: JUSTICE SCOTT

text:
    COMMUNITY STATE BANK OF GALVA, Plaintiff-Appellee, v. HARTFORD INSURANCE COMPANY, Defendant-Appellant.
    Third District
    No. 3—88—0497
    Opinion filed August 15, 1989.

      Anthony C. Raccuglia & Associates, of Peru (Cynthia M. Raccuglia, of counsel), for appellant.
    Massie & Steele, of Alpha (R. Philip Steele, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Defendant-Appellant, Hartford Insurance Company (Hartford), appeals from certain orders entered by the trial court of Henry County granting plaintiff-appellee Community Bank of Calva’s (the Bank’s) motion for summary judgment and awarding the Bank damages under section 155 of the Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 767).

Hartford issued to the Bank a banker’s benefit bond, No. 85— BPPRR6767, covering a policy period of October 16, 1985, to October 16, 1988. The Bank alleged in its complaint filed March 26, 1987, that on or about August 17, 1986, Leland T. Everett delivered to the Bank a certain power of attorney purportedly executed by Peter S. Craig, trustee, and appointing Leland T. Everett as agent. Craig was the Bank’s customer but Everett was not. The Bank then tendered to Everett the sum of $30,000 in consideration of a promissory note executed as Peter S. Craig, trustee, by Leland T. Everett, agent. This note was executed at the request of the Bank at the same time Everett delivered the power of attorney to the Bank’s employee Barbara Nelson. There is no dispute that Nelson relied on the purported power of attorney when agreeing to lend money to Everett in exchange for the note. An extension on the remaining $20,000 balance due on the note was later given to Everett by the Bank.

It is undisputed that the power of attorney delivered to the Bank by Everett on August 12, 1985, was a forgery. As such, the Bank turned in a claim under its policy with Hartford for coverage under the blanket bond. Hartford refused coverage, thereby prompting this suit.

The relevant provisions for coverage are listed in the “Insuring Agreements” section of the policy and state as follows:

“Forgery or Alteration
(D) Loss resulting directly from
* * *
(2) Forgery or alteration of, on or in any Negotiable Instrument (except an Evidence of Debt), Acceptance, Withdrawal Order, Receipt for the Withdrawal of Property, Certificate of Deposit or Letter of Credit. ***
Securities
(E) Loss resulting directly from the Insured having, in good faith, for its own account or for the account of others:
(1) acquired, sold or delivered, or given value, extended credit or assumed liability, on the faith of, or otherwise acted upon, any original
* * *
(e) Evidence of Debt
* * *
which
(i) bears a signature of any maker, drawer, issuer, endorser, assignor, lessee, transfer agent, registrar, acceptor, surety, guarantor, or of any person signing in any other capacity which is a forgery ***.”

The Bank’s complaint alleged two counts against Hartford. The first alleged coverage for the loss resulting from reliance on the forged power of attorney and the second alleged an unreasonable and vexatious refusal to settle by Hartford and seeking damages under section 155 of the Insurance Code. (Ill. Rev. Stat. 1987, ch. 73, par. 767.) Cross-motions for summary judgment were filed, and after hearing, the trial court awarded summary judgment to the Bank on both counts against Hartford. Hartford then filed a motion for reconsideration as to the court’s ruling that its refusal to settle was unreasonable and vexatious and pointed out to the court that the Bank’s attorneys were initially relying on a portion of the insurance policy for coverage different than that relied by the trial court. The motion was denied, and the court thereafter heard testimony regarding damages. The Bank was awarded the balance due on the note plus interest to the date of judgment, attorney fees, costs and $2,500. The court reserved with the Bank the right to subsequently petition the court for additional fees.

Hartford raises two issues on appeal. First (issue 1), whether the trial court erred in granting the Bank’s motion for summary judgment and denying Hartford’s motion for summary judgment. Second (issue 2), whether the trial court’s finding that Hartford’s refusal to settle was unreasonable and vexatious, entitling the Bank to damages under the Insurance Code, was against the manifest weight of the evidence. Both parties acknowledge that no material facts are at issue. Summary judgment is clearly the proper remedy in this case.

Regarding issue 1, the trial court found that coverage existed under section E(l)(e) of the insuring agreement. Hartford’s principle argument is the Bank relied solely on the forged power of attorney when extending credit and that a power of attorney was not specifically enumerated as covered in subparagraphs D or E quoted above, and therefore, should be exempt from coverage under the exclusions provision of the policy.

The construction of insurance policies presents questions of law to be decided by the court. (Sawyer Fruit & Vegetable Co-operative Corp. v. Lumbermens Mutual Casualty Co. (1983), 117 Ill. App. 3d 407, 453 N.E.2d 826.) The language of an insurance policy is to be liberally construed in favor of the insured and against the insurer. (Baldwin v. Auto-Owners Insurance Co. (1972), 5 Ill. App. 3d 300, 282 N.E.2d 204.) Any lack of clarity of an insurance contract is the responsibility of the insurer, and in such circumstances a construction will be adopted favoring the insured and resolving uncertainty in his favor. (Tiffiny Decorating Co. v. General Accident Fire & Life Assurance Corp. (1973), 12 Ill. App. 3d 597, 299 N.E.2d 378.) Where the provisions of an insurance contract are clear and unambiguous, however, it is the court’s duty to enforce them according to their plain meaning. (Allstate Insurance Co. v. Panzica (1987), 162 Ill. App. 3d 589, 515 N.E.2d 1299.) Ambiguity should not be created where none exists. State Farm Mutual Automobile Insurance Co. v. Byrne (1987), 156 Ill. App. 3d 1098, 510 N.E.2d 131.

Paragraph (E)(1)(e) provides coverage when an insured, in good faith, extends credit on an evidence of debt that has been forged. The trial court extended coverage under this section on the basis that the promissory note signed by Everett as agent for Craig, trustee, was a forged evidence of debt. Hartford stresses, however, that the note should not be considered, as the Bank alleged in its complaint that it relied solely on the power of attorney when extending credit to Everett. We do not dispute the Bank’s contention that reliance solely on the power of attorney, without more, may not be covered under the policy. However, it is not disputed that at the time Everett presented the power of attorney, he was required to execute a promissory note, itself a forgery as that term is defined in the policy, in order to be extended credit. This is verified by Barbara Nelson’s uncontradicted affidavit testimony, and it is simply unreasonable to not take the forged note into consideration as well as the power of attorney. It is a general rule of law that instruments executed for the same purpose and in the course of the same transaction will be construed as a single instrument. (Bogdan v. Ausema (1962), 33 Ill. App. 2d 294, 179 N.E.2d 401, Feldman v. Cipolla (1955), 7 Ill. App. 2d 448, 129 N.E.2d 774.) Not only was the Bank relying on the power of attorney as granting Everett authority to obtain credit in Craig’s name, but it was also legally relying on the executed promissory note as consideration for making the loan. The documents were both necessary for Everett to complete his scheme, both delivered contemporaneously to the Bank, and both necessary in order for the Bank to extend credit.

There has been some discussion, however, regarding whether the note is an evidence of debt or a negotiable instrument as those two phrases technically have slightly different meanings under the insurance contract. This side issue is irrelevant, however, because if the note is an evidence of debt, coverage is clearly provided under paragraph E(l)(e) of the insuring agreement’s section and if the note is considered a negotiable instrument, coverage is clearly provided under paragraph (D)(2) of the insuring agreement.

In dicta, had there been no promissory note for whatever reason, coverage solely on the power of attorney appears to be provided under paragraph B(2) of the insuring agreements in that the insured paid funds on the faith of a purported written instruction of a customer.

Issue 2 concerns a discretionary decision by the trial court as to whether Hartford’s refusal to settle was unreasonable and vexatious. Section 155 of the Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 767) provides that if the trial court makes such a finding it may award attorney fees, costs, plus an additional amount within the guidelines provided for in the statute. (See Songer v. State Farm Fire & Casualty Co. (1982), 106 Ill. App. 3d 141, 435 N.E.2d 948.) The trial court, in its discretion, determined Hartford’s actions or refusal to settle unreasonable and vexatious, and therefore, awarded the Bank its attorney fees, costs and $2,500. The court also reserved any ruling on additional attorney fees.

Illinois law is well settled that where issues as to coverage are legitimately raised by an insurer, no hearing based upon an alleged unreasonable denial of claim is in order. (Kerouac v. Kerouac (1981), 99 Ill. App. 3d 254, 425 N.E.2d 543.) This is not the case herein. Hartford argues that since the Bank’s attorney initially pointed to a clearly irrelevant provision for coverage, Hartford should not be charged with unreasonableness based on its denial of the claim under that section. Moreover, Hartford claims it moved quickly to bring this matter to the summary judgment stage and was first informed of the note at the hearings in this cause. Hartford lastly asserts, based on Hall v. Svea Mutual Insurance Co. (1986), 143 Ill. App. 3d 809, 493 N.E.2d 1102, the trial court’s award of punitive damages above and beyond attorney fees and costs was clearly erroneous. We disagree with all of Hartford’s contentions.

Hartford as the drafter of the document is charged with knowing its contents, and therefore, should know the appropriate section for coverage regardless of whether the insured cites other sections for coverage. Moreover, Hartford’s claim that it brought the matter to summary judgment quickly is without merit because the unreasonable refusal to settle occurred prior to suit being filed. Also, Hartford’s statement that the note was not within its knowledge until the hearings in this cause is meritless in that a letter dated July 8, 1986, from a Hartford agent to the Bank and attached to Hartford’s attorney’s affidavit filed May 13, 1988, mentions the very note in question. Lastly, Hall concerned a factual dispute regarding coverage and the court therein applied its discretionary authority to award only attorney fees and no additional punitive amounts. In Hall, however, underlying facts were disputed and thereafter resolved based on testimony of witnesses. Quite differently, however, this case involved no disputed underlying facts, but only a question of interpretation. In this case, as in Hall, the trial court acted within its discretion based on the circumstances before it.

Therefore, the decisions and orders of the trial court are affirmed and the cause is further remanded to the trial court for hearing any motions by the Bank for additional attorney fees expended after the date of the last award.

Affirmed.

WOMBACHÉR, P.J., and HEIPLE, J., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE VILLAGE OF CREVE COEUR, Plaintiff-Appellant, v. DENNIS FLETCHER et al., Defendants-Appellees.
    Third District
    No. 3—88—0641
    Opinion filed August 16, 1989.

      Rochford & Associates, of Peoria (Michael D. Gifford, of counsel), for appellant.
    Cornfield & Feldman, of Chicago (Richard Tupper, of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

On September 11, 1986, the Board of Fire and Police Commissioners (the Board) of the Village of Creve Coeur (the Village) decided to discipline Dennis Fletcher with a 30-day suspension for conduct unbecoming of a police officer. Thereafter, Fletcher and his union, Local 463, Counsel 163, American Federation of State, County, and Municipal Employees, AFL-CIO (the Union), filed a grievance pursuant to a collective bargaining agreement with the Village, contesting the Board’s decision. Fletcher and the Union also filed a complaint for administrative review against the Village and the Board.

The Village refused to consider the grievance, declaring it nongrievable and stating that Fletcher’s only appeal was pursuant to the fire and police commission act (Ill. Rev. Stat. 1985, ch. 24, par. 10— 2.1 — 1 et seq.). The Union replied that the Village’s position was unacceptable and requested that an arbitrator be appointed. The Village then brought this action in the circuit court of Tazewell County, seeking a declaratory judgment that the disciplinary action taken by the Board against Fletcher is not subject to the grievance procedure outlined by the collective bargaining agreement. The defendants, Fletcher and the Union, counterclaimed, seeking to compel the Village to arbitrate. When the court entered its summary judgment in favor of the defendants, the Village brought this appeal, arguing that the circuit court erred in its interpretation of the collective bargaining agreement and that arbitration of the Board’s decision is barred by law.

Both parties agree that the first issue to be decided in this appeal is whether the circuit court erred when it interpreted the collective bargaining agreement to require arbitration of the parties’ dispute. When a question of interpretation arises, it is fundamental that the court adopt a construction of the contract that is reasonable rather than that which would produce an irrational or absurd result. (Scheduling Corp. of America v. Massello (1983), 119 Ill. App. 3d 355, 361, 456 N.E.2d 298, 303.) The trial court’s interpretation of the contract focused on article XII, section 1, of the collective bargaining agreement, which provides in relevant part:

“Except as provided by the Fire and Police Commission Act, disciplinary action or measures shall include only the following: Oral reprimand Written reprimand
Suspension (notice to be given in writing) Disciplinary action may be imposed upon an employee only for failing to fulfill his responsibilities as an employee. Any disciplinary action or measure imposed upon an employee may be processed as a grievance through the regular grievance procedure.”

The trial court reasoned that while the contract in this section discussed a police and fire commission act exception, the exception applied only to the first sentence and not to the remaining sentences in the section. Thus, it concluded that the fire and police commission act was not a consideration in deciding whether a particular disciplinary action could be processed through the grievance procedure. We observe that while such an interpretation may be constructionally plausible, it provides for an irrational result considering the nature of the grievance procedure. In this case, for instance, supposing that the parties proceeded pursuant to the fire and police commission act by going through the Board of Police and Fire Commissioners, the circuit court, the appellate court to the supreme court of Illinois, one of the parties, dissatisfied by the result of the supreme court, could then, according to the circuit court’s interpretation, proceed through the regular grievance procedure where a police officer’s immediate sergeant could review and decide contrary to the decision of the supreme court.

The actual result in this case of the circuit court’s interpretation is to permit the officer’s immediate sergeant to review and decide contrary to the decision of the Board of Commissioners. While such a result may not be as irrational as the hypothetical presented above, it is nonetheless irrational and, therefore, erroneous. The circuit court should have concluded that the fire and police commission act exception applied to all the sentences of the relevant section of the collective bargaining agreement and that a matter taken pursuant to the fire and police commission act, therefore, precluded use of the regular grievance procedure.

Therefore, because the circuit court erred in its interpretation of the contract, we accordingly reverse its judgment.

Reversed.

WOMBACHER, P.J., and HEIPLE, J., concur.


text:
    MELVIN THOMAS, Plaintiff-Appellee, v. JIM GREER, Warden, Defendant-Appellant.
    Third District
    No. 3—88—0360
    Opinion filed August 17, 1989.
   The above opinion was withdrawn from publication after rehearing was allowed January 22, 1990, and was modified March 30, 1990, and republished at 200 Ill. App. 3d 202.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES ROGERS, Defendant-Appellant.
    Second District
    No. 2—88—0363
    Opinion filed August 15, 1989.

      Grief, Bus & Blacklidge, of West Chicago (Dalton P. Grief, of counsel), for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Kevin T. McClain, of Immel, Zelle, Ogren, McClain, Germeraad & Costello, of Springfield (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Charles Rogers, was convicted of one count of unlawful delivery of 30 or more grams of a substance containing cocaine (Ill. Rev. Stat. 1985, ch. SGVc, par. 1401(a)(2)) and two counts of unlawful delivery of between 10 and 30 grams of cocaine (Ill. Rev. Stat. 1985, ch. 56x/2, par. 1401(b)(2)). Defendant raises the following contentions on appeal: (1) that tape recordings of conversations between him and a government informant were erroneously admitted into evidence; (2) that the trial court improperly permitted the jury to examine transcripts of the taped conversations prepared by the State while the recordings were being played; (3) that the trial court erred by denying his motion to call a certain individual as a court’s witness; (4) that the trial court erroneously prevented him from bringing out certain evidence on cross-examination and during his case in chief; (5) that the prosecution violated a court order forbidding presentation of evidence concerning drug sales to informant Kathe Hoare by individuals other than defendant or by defendant prior to December 1986; and (6) that defendant was prejudiced by several improper statements made by the prosecuting attorneys. We affirm.

The charges against defendant arose from cocaine purchases allegedly made by Kathe Hoare at the Rustic Lounge just outside West Chicago in unincorporated Du Page County on December 16, 1986, December 29, 1986, and January 30, 1987. Defendant was the manager of the lounge and lived with his family in an apartment on the premises. At the time the alleged cocaine purchases were made, Hoare was working as an informant for the Du Page County Metropolitan Enforcement Group (DUMEG). Hoare was incarcerated at the Du Page County jail on deceptive-practice charges when she agreed to become an informant. She had four prior felony convictions, having been convicted of deceptive practices in 1979, 1981, and 1987, and theft in 1981. At the time of defendant’s trial, Hoare had 13 charges pending against her in Du Page County and other counties, primarily for deceptive practices. Hoare admitted that she used cocaine on a regular basis until she became a DUMEG informant in early December 1986.

Tape recordings of numerous conversations between Hoare and defendant at the Rustic Lounge in December 1986 and January 1987 were admitted into evidence. On each of the dates on which a recorded conversation was obtained, the following events occurred. Hoare first met with DUMEG and Illinois State police agents at the West Chicago police station. Hoare and her clothing were searched by a female police officer. Agents searched Hoare’s red pickup truck. No illegal drugs or other contraband were found in any of these searches. On most of the occasions, Hoare was then outfitted with both a Nagra reel-to-reel recorder and an RF transmitter, which enabled agents parked nearby in a van to monitor the conversations. After January 20, Hoare was outfitted with only the RF transmitter.

On each of the dates, Hoare drove to the Rustic Lounge in her red pickup truck after leaving the police station. Agents- in a van and in a car followed her to the lounge and parked nearby. The agents in the van were able to overhear and monitor Hoare’s conversations. When Hoare left the lounge in her pickup truck, shé returned to the West Chicago police station. The agents in the van and car followed her. After she arrived, Hoare, her clothes, and her truck were searched once again. The only dates that Hoare possessed contraband upon her return from the lounge were December 16, December 29, January 20, and January 30.

On each of the above dates, Hoare possessed plastic baggies containing a substance. She identified four exhibits as the contraband she possessed on those dates and testified that she received the contraband from defendant. Laura Mitacek, a chemist with the Du Page County sheriff’s office, testified that each of the plastic baggies purportedly given to Hoare by defendant had a substance inside which contained cocaine. The substance turned over by Hoare on December 16 weighed 26.57 grams. The substance which she turned over on December 29 weighed 27.89 grams. The two plastic baggies which she turned over on January 30 contained a substance weighing 55.59 grams. Hoare testified that defendant gave her the plastic baggies containing these substances on the above dates after she paid him. Defendant denied making these deliveries to her. On January 20, defendant gave Hoare a plastic bag containing 1.83 grams of cocaine, purportedly as a sample for a larger proposed transaction which was never consummated. Defendant was not charged with this delivery. He admitted giving Hoare this small sample of cocaine on January 20, but stated it was cocaine that Hoare had previously given to him.

Hoare testified that she listened to each of the tape recordings admitted into evidence and that the recordings accurately depicted the conversations that took place between her and defendant on the dates in question. While the tapes were being played in court, the trial judge permitted the jury to use written transcripts of the conversations prepared by the State as a guide. Hoare and DUMEG Agent James O’Brien both testified that they assisted in the preparation of the transcripts and that the transcripts accurately described the conversations between Hoare and defendant on the dates in question. O’Brien testified that he monitored many of the conversations in the van parked near the lounge and that he listened to all the tapes. Hoare testified that DUMEG Agent Michael Sullivan and two assistant Du Page County State’s Attorneys assisted her in the preparation of the transcripts. The trial judge admonished the jury that the transcripts were not evidence and were only provided to assist the jury in listening to the tapes, which were evidence.

Defendant acknowledged during his testimony that he discussed potential cocaine sales to Kathe Hoare during many of the recorded conversations. Defendant stated, however, that he believed the West Chicago police were trying to set him up on a drug bust because of a lawsuit he had filed in Federal court against the City of West Chicago, its police chief, West Chicago police officer Jerome Dolan, and other defendants. Defendant testified that he decided to play along when Hoare asked to buy cocaine from him in an effort to determine who was setting him up. Defendant also presented evidence concerning Hoare’s poor reputation for honesty and her cocaine use. This included testimony from defendant's brother, Michael Sigler, that, in his opinion, Hoare was a cocaine addict between November 1986 and February 1987.

The jury found defendant guilty on all three counts. The trial court denied defendant’s post-trial motion and sentenced him to concurrent terms of imprisonment of eight years, four years, and four years on the three counts. Defendant now appeals.

Defendant first argues that it was error for the trial court to admit the tape recordings into evidence. Defendant contends that the State did not provide a sufficient foundation for admission of the tapes and that their admission was improper because many of the comments made were inaudible or unintelligible.

An adequate foundation exists for the admission of tape recordings into evidence if a witness to the conversation testifies that the tape accurately portrays the conversation in question. (People v. Williams (1985), 109 Ill. 2d 327, 338; People v. Gaurige (1988), 168 Ill. App. 3d 855, 863.) Kathe Hoare, a witness to each conversation, testified that all of the tapes accurately portrayed the conversations in question. The State provided an adequate foundation for the admission of the tapes.

Additionally, a partially inaudible tape recording is admissible unless the inaudible portions are so substantial as to render the recording untrustworthy as a whole. (People v. Dougherty (1987), 160 Ill. App. 3d 870, 876.) The admission of a partially inaudible recording or a recording that depicts only a portion of a conversation is a matter within the trial court’s discretion. (Dougherty, 160 Ill. App. 3d at 876.) While some portions of the tape recordings are inaudible, our review of the tapes indicates that those portions are not so substantial as to render the recordings untrustworthy as a whole. The trial court did not abuse its discretion by admitting the tapes into evidence.

Defendant also argues that the jury should not have been permitted to review transcripts of the recordings prepared by the State while the tapes were being played. It is proper, however, for a trial court to permit the jury to use written transcripts of recorded conversations in order to assist them while they listen to the conversations. (People v. Spicer (1978), 61 Ill. App. 3d 748, 759, rev’d on other grounds (1979), 79 Ill. 2d 173.) Here, as in Spicer, the transcripts were used solely for this limited purpose and were collected from the jurors after they listened to the tapes. In Spicer, the court stated it would be a better practice for the trial court to admonish the jury as to the purpose of the transcripts and instruct the jury to determine for itself the events transpiring on the tape. (61 Ill. App. 3d at 759.) In the present case, the trial judge admonished the jury that the transcripts were not evidence, but were only to be used for assistance while the jurors listened to the tapes, which were in evidence.

Defendant’s reliance upon People v. Melchor (1985), 136 Ill. App. 3d 708, is misplaced. In Melchor, tape recordings of certain conversations were admitted into evidence. There was no testimony, however, establishing the authenticity of the transcripts or the identity of the speakers on the tapes. As the court pointed out, since the identity of the speakers was never established, the tapes did not prove defendant committed the crime. Melchor, 136 Ill. App. 3d at 712.

The court ruled in Melchor that defendant suffered unfair prejudice from the use of the unauthenticated transcripts under these circumstances because the transcripts identified the alleged speakers in the left-hand column, and the trial court admonished the jury that they were merely to be used as an aid “for the limited purpose of assisting the jury in what was said at that time and who said it.” (Emphasis in original.) (136 Ill. App. 3d at 713.) The court further stated that by giving the above admonition, the trial court added its credibility to the unauthenticated transcript. 136 Ill. App. 3d at 714.

The Melchor court distinguished Spicer on the basis that in Spicer, a witness was presented to testify to the accuracy of the transcript, and defendant did not dispute its accuracy. (136 Ill. App. 3d at 714.) Here, as in Spicer, a witness testified that the transcripts accurately portrayed the conversations in question. That witness was Kathe Hoare, who was present for each of the conversations, who testified that she listened to the tapes and transcripts, and who also testified that she assisted in the preparation of the transcripts. Since Hoare was present at each recorded conversation and she testified that the transcripts were accurate, there was a sufficient foundation for use of the transcripts. See People v. Dogoda (1956), 9 Ill. 2d 198, 202 (police officer’s testimony that transcript of defendant’s statement was accurate sufficient to render transcript admissible when officer was present at time of statement).

The problem in Melchor was that the tapes did not tend to prove defendant was guilty of the crime because the speakers were never identified. The unauthenticated transcripts were then used improperly to link defendant to the crime. This problem is not present here because Kathe Hoare’s testimony authenticated the transcripts and identified the speakers on the tapes. Melchor is therefore inapposite.

Defendant also complains of alleged inaccuracies in the transcripts. He points out that the transcript for January 30, 1987, quotes Kathe Hoare as saying, “You gonna count out the money?” Defendant’s position is that Hoare actually said, “Now you are out the money,” meaning there was no deal. When defendant’s attorney asked Agent O’Brien if he heard Hoare make the latter statement when he listened to the tape, O’Brien said yes. Hoare denied making this statement, however, and instead testified that she asked if defendant was going to count out the money.

We are unable to determine from reviewing the tapes what Hoare said on this occasion. It is difficult to determine how defendant was prejudiced by the use of the transcripts with regard to the jury’s determination as to what Hoare actually said. Hoare had an independent recollection of what she said and testified concerning the same. O’Brien’s testimony that he recalled hearing something else on the tape was brought to the jury’s attention. Furthermore, the jury listened to the tapes. In our review of the tapes and transcripts, we have noted some minor inaccuracies in the transcripts, none of which were severe enough to result in any prejudice to defendant. The trial court did not err by permitting the jury to use the transcripts.

Defendant next contends that the trial court erred by denying his motion to call Harry Gangestad, a former cook at the Rustic Lounge, as a court’s witness. Defendant made this request because Gangestad allegedly told his attorney that Kathe Hoare once asked him to plant two ounces of cocaine at the Rustic Lounge. Gangestad then allegedly told an assistant State’s Attorney that Hoare never asked him to do so.

The decision as to whether to call an individual as a court’s witness rests within the trial court’s discretion. (People v. Harvey (1980), 92 Ill. App. 3d 465, 471.) The requisite foundation for having a witness declared a court’s witness consists of providing the reasons why the party wishing to call the witness cannot vouch for his or her veracity and establishing that the testimony will relate to direct issues and is necessary to prevent an injustice. (People v. Dennis (1970), 47 Ill. 2d 120, 132.) The practice of calling individuals as court’s witnesses should be employed sparingly. (People v. Moriarity (1966), 33 Ill. 2d 606, 615; People v. Jackson (1980), 89 Ill. App. 3d 461, 477.) Declaring a witness a court’s witness enables either side to impeach or cross-examine that individual. (People v. Triplett (1980), 87 Ill. App. 3d 763, 767.) The primary purpose of this practice is to enable a party to call an important witness whose veracity is doubtful without fear that the party will be unable to impeach the witness if he or she says something which damages the party’s case. (People v. Weaver (1982), 92 Ill. 2d 545, 563.) A court’s witness may only be impeached if his or her testimony actually damages the case of the examining party, not if the testimony merely fails to support that party’s position. Weaver, 92 Ill. 2d at 563.

Even if Gangestad had been called as a court’s witness and testified that Hoare did not ask him to plant cocaine at the Rustic Lounge, defendant could not have impeached him with his alleged prior, inconsistent statement. Such testimony would not have damaged defendant’s case but would have instead constituted a failure to support defendant’s position. Thus, calling Gangestad as a court’s witness could not have aided defendant.

Furthermore, it has been held that it is not erroneous to deny a party’s request to declare an individual a court’s witness until some hostility to the requesting party on the part of the witness becomes apparent. (People v. Bridgeforth (1972), 51 Ill. 2d 52, 59; People v. Collins (1962), 25 Ill. 2d 605, 610-11.) Defendant made no showing of hostility on Gangestad’s part. The trial court’s refusal to declare Gangestad a court’s witness was not error.

Defendant argues that the trial court improperly prevented him from presenting certain testimony in his case in chief and from attempting to elicit certain testimony on cross-examination. This includes the trial court’s refusal to allow defendant to call Winston Block, an attorney who purportedly would have testified that defendant spoke to him on February 19, 1987, ahd told Block he thought he was being set up by a law enforcement agency.

Additionally, defendant asserts that he was improperly barred from introducing evidence about Federal forfeiture proceedings concerning the Rustic Lounge. Defendant also contends that his cross-examination was improperly limited by the trial court in the following respects: (1) he was restricted from asking Agent O’Brien about contacts Kathe Hoare had with persons other than defendant at the Rustic Lounge; (2) he was not allowed to ask Detective Malkin about Hoare’s contacts with the West Chicago police department prior to December 1986; (3) he was not allowed to inquire about Sergeant Dolan’s prior contacts with the Rustic Lounge; (4) he was not allowed to ask Hoare about certain alleged acts of deceit which did not result in criminal charges; and (5) he was prevented from inquiring into the relationship between Hoare, Kenneth Gammill and Michael Sigler prior to December 1986. Our review of the record indicates that the first and third restrictions on cross-examination alleged by defendant did not even take place.

While defendant complains of several such evidentiary rulings by the trial court, he does not cite a single authority in support of his contention that these rulings were erroneous. Supreme Court Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)) requires citation of authority in support of contentions made on appeal. The appellate court is not a depository in which the appellant may dump the burden of argument and research. (People v. Trimble (1989), 181 Ill. App. 3d 355, 356.) In the case at bar, as in Trimble, the State pointed out the shortcomings in defendant’s initial brief, but defendant failed to cite any authority in support of his contentions in his reply brief. Instead, defendant argued in the reply brief that the contentions in question should be addressed because he presented reasoned argument in support of those contentions.

Arguments that fail to satisfy the requirements of Rule 341(e)(7) do not merit consideration on appeal. (Trimble, 181 Ill. App. 3d at 357.) It is clear from our holding in Trimble that contentions which are not supported by citations of authority do not comply with Rule 341(e)(7). (181 Ill. App. 3d at 356-57.) Such compliance is necessary in order to permit a reviewing court to ascertain the integrity of the contentions raised on appeal and to accurately determine the issues raised on appeal. (181 Ill. App. 3d at 356-57.) Defendant has waived any objection to the aforementioned evidentiary rulings of the trial court.

Defendant argues that certain testimony elicited by the State from Kathe Hoare violated court orders entered in response to defense motions in limine and that the trial court should have granted his subsequent motion for a mistrial. While defendant has not gone out of his way to provide this court with pertinent authorities in support of this argument, citing only a 1937 case from the supreme court of the State of Washington, we shall proceed to review it.

During the December 10, 1986, conversation between Hoare and defendant, defendant referred twice to a $175 debt owed by Hoare and later stated, “You’re gonna have to pay me back first.” Hoare testified that defendant was referring to a bad check she had written for $175 in October. The check was made out to cash. The prosecuting attorney then asked why Hoare had written the check and Hoare stated, “To purchase cocaine.” The attorney then asked how much cocaine she had purchased, and Hoare stated she had purchased one-sixteenth of an ounce.

The sole basis for the defendant’s contention that a mistrial should have been granted is that the State purportedly violated two court orders by eliciting the above testimony. The first order granted defendant’s motion in limine to bar evidence of drug deliveries from individuals other than defendant to Kathe Hoare. The second order was an admonishment by the trial court that the prosecution could only ask Hoare generally if defendant sold her cocaine before December 8, 1986, and could not make any more specific inquiries concerning the subject.

We agree with defendant’s assertion that the State violated the latter order, even though the trial judge did not reach the same conclusion. The prosecuting attorney admitted on the record that he knew Hoare would say she wrote the check to purchase cocaine. Thus, the prosecutor deliberately violated the court’s oral instruction to only ask the witness generally if she had purchased cocaine from Rogers before December 8, 1986, and not to ask about any specific transactions. We cannot agree with the trial judge’s conclusion that his order was not violated because the testimony did not directly tie defendant in with the transaction. Defendant clearly referred to the $175 debt on the December 10 tape as a debt owed to him. Since Hoare stated that she wrote the $175 check to purchase cocaine, the testimony tied him into a cocaine sale.

Nevertheless, because of the overwhelming evidence against defendant, we conclude that any error in this regard was harmless beyond a reasonable doubt. Hoare’s testimony that defendant sold her cocaine on the three dates in question is strongly supported by the tape recordings. Defendant admits that he discussed buying and selling cocaine with Hoare during several of these conversations.

On December 8, 1986, defendant quoted a price of $2,100 for an “ozzy” which, according to Hoare’s testimony and defendant’s admission, referred to an ounce of cocaine. On December 16, the date of the first alleged sale, defendant asked if Hoare had the money. Hoare stated that she had $1,100. Defendant then stated he would “front [Hoare] a half,” meaning one-half ounce of cocaine, according to Hoare. Defendant later told Hoare during this conversation, “I want my money, that’s all.”

Six days later, Hoare told defendant, “Here is a thousand.” Defendant then asked for another hundred. Hoare said, “I gave you 11. It’s 21, you said.” Defendant was satisfied at this point. On December 29, Hoare stated, “Here’s 1100. Is this, this is a half?” Defendant then said, “You owe me a thousand.” The recorded conversations clearly support Hoare’s testimony that on December 16 and 29, she paid for one-half ounce of cocaine and defendant gave her another half ounce on credit expecting to be paid later. Moreover, on both occasions, Hoare turned over approximately one ounce of cocaine to the agents after she left the Rustic Lounge. On January 30, 1987, the date of the alleged third sale, Hoare stated, “Here’s the four grand.” She then turned over two ounces of cocaine to the agents.

Defendant’s explanation for his statements in the recorded conversations is simply incredulous. He admitted that he was discussing potential cocaine sales with Hoare. Defendant testified, however, that he suspected all along that Hoare was an informant attempting to set him up on a drug bust. Defendant testified that he played along with Hoare in an effort to find out who was setting him up. His actions and recorded statements are not consistent with this testimony, however. Hoare told defendant several times that she was buying for other people or that another individual was putting up the money. Defendant repeatedly told her that he did not want to see or meet any of these other individuals. If defendant was really trying to find out who was setting him up, it would seem that he would have wanted to meet these other individuals.

Additionally, defendant admitted that he delivered a small amount of cocaine to Hoare on January 20, 1987. It seems incredible that an individual would deliver cocaine to someone that he believed to be a government informant. Even if we accept defendant’s testimony that Hoare had given him the cocaine, it is still incredible that he would accept cocaine from a suspected informant and keep it in his possession, even though he harbored the belief that the police were trying to set him up.

A criminal conviction will not be reversed on the basis of trial error unless it appears that the guilty verdict may have resulted from the error. (People v. Cowper (1986), 145 Ill. App. 3d 1074, 1083.) In light of the overwhelming evidence against defendant, the prosecution’s violation of the trial court’s order did not contribute to the guilty verdict.

The allegedly improper remarks made by the prosecutor also constituted harmless error. We will, however, briefly comment upon two of these remarks which were made during closing argument. At one point, the prosecuting attorney stated, “This defendant is cagey, folks, he learned from his brother, Kenny.” Defendant’s half-brother, Kenny Gammill, had previously testified and admitted to a prior conviction for conspiracy to sell cocaine. At another point, the prosecuting attorney stated, “I guess we are all supposed to hope and believe that drug dealers who sell drugs to grade school and high school kids are just pretending.”

Remarks made in closing argument such as the above which serve no purpose but to inflame the jury are manifestly improper. (People v. Threadgill (1988), 166 Ill. App. 3d 643, 651.) Although a prosecutor may denounce the accused if his or her remarks are based upon facts in evidence or inferences fairly drawn from the evidence (People v. Bryant (1983), 94 Ill. 2d 514, 524), there was not a scintilla of evidence that defendant sold drugs to school children or learned about drug trafficking from his half-brother.

Because of the overwhelming evidence against defendant, the above remarks constituted harmless error. We do not, however, condone these remarks. Such ill-considered and manifestly improper statements can jeopardize the prosecution’s entire case in appropriate instances. See Williams v. Lane (7th Cir. 1987), 826 F.2d 654, 667; Threadgill, 166 Ill. App. 3d at 651.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

LINDBERG and WOODWARD, JJ., concur.


text:
    THE DEPARTMENT OF PUBLIC AID ex rel. HEATHER CORRIGAN, Petitioner-Appellee, v. SCOTT HAWKINS, Respondent-Appellant.
    Second District
    No. 2—88—1212
    Opinion filed August 15, 1989.

      Timothy J. Klein, of Darnall, Polachek & Associates, of Franklin Park, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield, and James E. Ryan, State’s Attorney, of Wheaton (Kimary Lee, Assistant Attorney General, Robert J. Ruiz, Solicitor General, and John M. Albertine, Assistant State’s Attorney, all of Chicago, of counsel), for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

The respondent, Scott Hawkins, appeals the trial court’s denial of his post-trial motion seeking modification of a paternity and support order. On appeal, the respondent contends that the trial court lacked the authority to order him to obtain or maintain medical insurance for future medical expenses of his minor child and that the evidence adduced at the support hearing failed to support the trial court’s findings that medical insurance was available to him for the benefit of the minor child and that he should be required to bear full financial responsibility for the child’s medical expenses. We dismiss this appeal for lack of jurisdiction. The following facts are relevant to our decision.

The petitioner, Heather Corrigan, filed a petition for determination of a father/child relationship on October 21, 1987, seeking the declaration that the respondent was the father of her son, Anthony Corrigan, who was born May 11, 1985. The petition further sought an award of temporary and permanent custody of Anthony, as well as an award of temporary and permanent child support to be paid by the respondent. The petition alleged that the petitioner was without sufficient financial resources to pay for the reasonable expenses of pregnancy and delivery and to provide for Anthony’s needs; it further alleged that the respondent had sufficient financial resources to pay such expenses and provide such support.

In an agreed order dated September 14, 1988, the respondent admitted paternity and admitted his duty of financial support of the minor child as well as his duty to reimburse the Illinois Department of Public Aid for monies expended on behalf of Anthony. The agreed order awarded sole care and custody of Anthony to the petitioner.

In a subsequent support hearing concerning economic issues only, the parties presented testimony concerning their respective weekly wages and expenses. The petitioner testified that public aid had contributed to her childbirth and related medical expenses. She stated that she had received public assistance in the amount of $80 for approximately six months and had been on Medicaid for an indeterminate length of time. She further stated that she had received no payments whatsoever from the respondent. At the close of the testimony, the trial court ordered the respondent to pay all ordinary and extraordinary medical expenses of the minor child, to pay the petitioner $35 per week in child support, commencing September 27, 1988, and to maintain or obtain medical insurance coverage for Anthony. The court specifically reserved ruling on the respondent’s liability for payment of back support and medical expenses as well as the question of visitation.

The defendant’s timely post-trial motion seeking modification of that portion of the order which required him to bear 100% of the child’s medical expenses and to obtain medical insurance was denied on November 10, 1988. The respondent’s timely appeal ensued.

At the outset, we shall consider whether this appeal is properly before the court. The petitioner contends that the support order dated September 22, 1988, is not a final and appealable order in that it did not dispose of all claims or issues which are material to the litigation between the parties. Thus, the petitioner argues that we should dismiss the instant appeal for lack of jurisdiction. We agree.

In the instant case, approximately one-half of the issues in dispute between the parties were disposed of by the trial court’s order. Notably, the trial court reserved ruling regarding the amount of reimbursement of back support and medical expenses the respondent would be required to pay the petitioner and the Department of Public Aid. In Deckard v. Joiner (1970), 44 Ill. 2d 412, 255 N.E.2d 900, cert. denied (1970), 400 U.S. 941, 27 L. Ed. 2d 244, 91 S. Ct. 232, the supreme court stated that the paternity order in question was not final and appealable, “because it provided that jurisdiction would be retained for the determination of a matter of substantial controversy between the parties, viz., the amount of support and expenses for which defendant was liable.” (Emphasis added.) (44 Ill. 2d at 417, 255 N.E.2d at 903.) The supreme court stated that the trial court’s subsequent support order constituted the final determination of the parties’ ultimate rights put into issue by the paternity complaint and resolved the remaining issue, that is, the amount of support and expenses for which the defendant was liable. (44 Ill. 2d at 417, 255 N.E.2d at 903.) With the entry of the support order, the trial court’s judgment became final and appealable with only incidental issues remaining, namely, the enforcement of the support order and the increase in the amount of support if later deemed necessary. 44 Ill. 2d at 417, 255 N.E.2d at 903.

In a recent decision, the Appellate Court for the Fourth District relied on Deckard and held that an order which included a paternity finding and ordered support payments, but which reserved ruling on State aid reimbursement and payment of childbirth expenses, was not a final and appealable order. (People ex rel. Driver v. Taylor (1987), 152 Ill. App. 3d 413, 504 N.E.2d 516.) The Driver court stated that the childbirth expenses were conceivably substantial and could not be considered “merely incidental” to the issues already resolved. (152 Ill. App. 3d at 416, 504 N.E.2d at 518.) In so holding, the Driver court expressly declined to follow two earlier appellate decisions, Watkins v. Martin (1983), 115 Ill. App. 3d 417, 450 N.E.2d 866, and People ex rel. Johnson v. Payne (1984), 127 Ill. App. 3d 398, 469 N.E.2d 270. The instant respondent urges us to disregard the Driver holding in favor of the holdings in Watkins and Johnson.

In Watkins, the trial court entered a paternity order and subsequent support order. While the plaintiff’s petitions for attorney fees and costs and retroactive support during pregnancy were pending, the defendant appealed. The appellate court denied the plaintiff’s motion to dismiss, stating that the pending matters were “simply collateral” to the party’s ultimate rights in the paternity action. (Watkins, 115 Ill. App. 3d at 419, 450 N.E.2d at 868.) It stated that in such a cause, all that was needed for a final and appealable order was (1) a determination of paternity, and (2) a support order: “the two basic orders actually required for virtual completion of the case.” Watkins, 115 Ill. App. 3d at 419, 450 N.E.2d at 868.

In Johnson, as in Watkins, the mother’s right to recovery of expenses for childbirth was pending at the time of the appeal. As in Watkins, the court held such an issue to be merely incidental to the rights already adjudicated, stating:

“An order is final for purposes of review even though matters are left for future determination when those matters are merely incidental to ultimate rights which have been adjudicated by the judgment or decree; this has been held specifically applicable to an order for paternity and support which reserved the issue of potential increases in support should the need arise.” Johnson, 127 Ill. App. 3d at 404, 469 N.E.2d at 275, citing Deckard, 44 Ill. 2d 412, 255 N.E.2d 900.

In both Johnson and Watkins, the Appellate Court for the First District expressly relies on the supreme court’s holding in Deckard that the trial court's reservation of incidental issues does not render a final order in a paternity action interlocutory. In Deckard, the supreme court enumerated those issues which it considered incidental, namely, the enforcement of the support order and any increases in support deemed necessary at a later date. In Johnson and Watkins, without citation of authority, the court concludes that the determination of the amount of retroactive support and reimbursement for childbirth and related medical expenses is merely incidental to the determination of the amount of support a respondent father is to pay in a paternity action. We fail to see how these items, which can be substantial, are simply collateral to this issue. In the instant case, for example, at the date of the support hearing, the minor child was approximately 3^2 years old. As of that date, the respondent had contributed zero dollars to his support. A retroactive award of the trial court requiring the respondent to pay even one-half of the current weekly amount back to the date of birth, as well as a portion of the childbirth and related medical expenses, will result in a sizeable award amounting to thousands of dollars. We cannot say that such a determination is simply incidental to the parties’ rights in this matter, and thus we expressly decline to follow the holdings of Watkins and Johnson. We determine the reasoning of the Appellate Court for the Fourth District as set forth in Driver to be the correct interpretation of the law concerning this issue.

In view of the trial court’s reservations on the issue of retroactive support and apportionment of childbirth and related medical expenses, we conclude that the support order of September 22, 1988, is not final and, therefore, not appealable. Thus, the respondent’s appeal is premature, and we lack jurisdiction to consider it.

Moreover, we note that even if we were to hold that the remaining issues were incidental matters which would not prevent the support order from being final, the result must be the same. The order did not dispose of all claims and did not include the appropriate language required by Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Thus, the support order is not within the purview of the rule, and an appeal may not be taken at this point in the proceedings. In re Marriage of Piccione (1987), 158 Ill. App. 3d 955, 963-64, 511 N.E.2d 1157,1163.

Accordingly, the respondent’s appeal is dismissed.

Appeal dismissed.

UNVERZAGT, P.J., and INGLIS, J., concur.


author: JUSTICE HEIPLE

text:
    DARYLE J. ROWLAND et al., Plaintiffs-Appellees, v. SHORELINE BOAT & SKI CLUB, Defendant-Appellant and Counterplaintiff-Appellant (Hortense Pfaffman et al., Intervenors-Appellees; Daryle J. Rowland et al., Counterdefendants-Appellees).
    Third District
    No. 3-88-0725
    Opinion filed August 2, 1989.
    Modified on denial of rehearing September 15, 1989.
    John L. Cantlin, P.C., of Ottawa (Eric B. Deobler, of counsel), for appellant.
    William J. Wimbiscus, of Boyle, Goldsmith, Shore & Bolin, of Hennepin (Linn C. Goldsmith and John S. Duncan, of counsel), for appellees Hortense Pfaffman, William Pfaffman, and Ellen Rosenzweig.

      John S. Duncan and Douglas A. Gift, both of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle, for appellee Daryle J. Rowland.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiffs, Daryle Rowland and Sandra Rowland, brought a quiet title action against the defendant, Shoreline Boat & Ski Club, to determine the northern boundary of lots 1, 2, and 3 in block 2 of Green’s Addition to the City of Ottawa, Illinois. See attached plat. The plaintiffs are the installment land contract purchasers of the three lots in question, and the defendant is the record title holder to real estate situated to the east of the plaintiffs’ property. The defendant additionally contends that it holds title to a section of property which lies to the north of lots 1, 2, and 3, which is adjacent to the Fox River. Subsequent to the commencement of the case, the record title holders and contract sellers of lots 1, 2, and 3, Hortense Pfaffman, William Pfaffman, and Ellen Rosenzweig, petitioned to intervene in the proceedings which the trial court allowed. For purposes of this appeal, the interests of the plaintiffs and intervenors are identical. Thereafter, the intervenors filed a motion for summary judgment. The trial court, relying on the original plat of the intervenors’ property, granted summary judgment, finding that the northern boundary of lots 1, 2, and 3 was the thread of the stream of the Fox River. Since the trial court record is void of any evidence showing a contrary intent on the part of the original grantor of the subject premises, we affirm.

The original plat of Green’s Addition to the City of Ottawa was drawn by G.G. Bullock in 1835 and was recorded in La Salle County. The Bullock plat, which is included in the text of this opinion, shows lots 1, 2, and 3 in block 2 abutting the Fox River. Notably, the length of the end lots on each block bordering the Fox River contains a “ + ” symbol, which indicates no limit to the length of the lots as they extend to the river. At the time the Bullock plat was completed, title to all of the real estate presently owned by the intervenors and the defendant was held by Henry Green.

The intervenors trace title back to Henry Green in 1834. Through various conveyances in about 1847, the land now owned by all parties, except for lot 2, was owned by William Cushman. Lot 2 had previously been conveyed by Henry Green to Jeremiah Price and was described in the deed as a “water lot.” Eventually, lots 1, 2, and 3 were conveyed to Oliver Gray in 1854. The three lots were then re-conveyed several times, including the last conveyance to George and Sara Brooks. George died in 1950 and Sarah died in 1980. Sarah’s heirs, the intervenors, then sold the lots to the plaintiffs.

The defendant traces title back to William Cushman, who conveyed property to the Ottawa Manufacturing Company in 1867, which was described in the following manner:

“[T]hat part SE xk or part NW xk of said Sec. Sec. 12, T. 33 N., R. 3E. of 3rd P.M., south of said canal [Illinois & Michigan Canal] and north of Blocks 1 and 2 and Grafton Street in Green’s Addition to Ottawa containing 8.52 acres ***.” (Emphasis added.)

Until 1939, each succeeding instrument and conveyance in the defendant’s chain of title used essentially the same description. A metes and bounds survey, which was not recorded, was then included in a deed from the National Fireproofing Corporation to Alexander and Katherine McLean on March 29, 1939* This conveyance gave the following description: After 1939, the premises again went through several conveyances with substantially the same description until Claud and Lucille Waite conveyed the property to the defendant on September 8,1958.

“Known as and being a part of the N.W. xk of Sec. 12 Twp. 33 N., Range 3 E. of the 3rd P.M., starting for the same at the center of said section, thence along the east line of said quarter section, North 820 feet to a monument in the Northeast corner of Block 1 in Green’s Addition to Ottawa for the place of beginning; thence (1) along the West line of said quarter section 996.7 feet to a monument on the South line of the 90-foot reserve of the Illinois and Michigan Canal; thence (2) along the South line of said 90-foot reserve North 74 degrees 27 minutes West 227 feet, more or less, to the Easterly side of Fox River; thence (3) along the Easterly side of Fox River southerly and southwesterly 1095 feet, more or less, to the Northerly line of said Block 2 in Green’s Addition to Ottawa thence (U) Easterly along the Northerly line of said Block 2 and along the Northerly end and Easterly side of Grafton Street, 290 feet, more or less, to a monument in the Northwest corner of [sic] B-ock [sic] 1 in said Green’s Addition; thence (5) along the North line of said Block 1 South 86 degrees 36 minutes East 483.85 feet to the place of beginning, containing 8.52 acres be the same more or less, and being all of that part of said N.W. xk lying South of the Illinois and Michigan Canal, East of Fox River and North of Blocks 1 and 2 and Grafton Street in Green’s Addition to Ottawa; being the same premises described at item 6 in that deed from National Fire Proofing Company to National Fireproofing Corporation recorded in Book 690 at Page 101 as aforesaid.” (Emphasis added.)

On appeal, the defendant maintains that the trial court erred in relying on the 1835 Bullock plat since the diagram is inaccurate because it purportedly shows the Fox River in a different location than it exists today or could have existed in 1835. To support its proposition, the defendant relies on a 1932 Army Corps of Engineers’ topographical survey which is not recorded in the recorder’s office of La Salle County, the affidavit of a civil engineer, and the affidavit of a surveyor. The evidence produced by the defendant to attack the correctness of the 1835 plat, however, is immaterial to the rule of law that is applicable to this case. The only evidence of any import is evidence which reveals Green’s intent when he conveyed the land in 1836. The 1835 plat is the only recorded public document of Green’s Addition at the time Green sold the subject property. The two affidavits and the 1932 Army Corps of Engineer survey do not in any way reveal what Green’s intent was in 1836.

Therefore, the sole issue presented by this appeal is to determine what Harold Green, the original grantor, intended the northern boundary of lots 1, 2, and 3 in block 2 to be when he conveyed the property. The generally accepted rule in Illinois is that unless an intention to the contrary is manifest, a grant of land bounded on a stream will convey the land to the middle thread of the stream. (Heckman v. Kratzer (1976), 43 Ill. App. 3d 844.) Here, the 1835 Bullock plat showed the northern boundary of lots 1, 2, and 3 to be the Fox River. Green at that time owned all of the property in question up to the Fox River. Further, the use of the “ + ” symbols on the plat reveals an intent to extend the length of the lots to the river. If the northern boundary of lots 1, 2, and 3 were the bluff line or some other fixed point as argued by the defendant, an exact measurement would have been all that was necessary without the use of “ + ” symbols. Additionally, Green, in a deed conveyed one day after the preparation of the 1835 Bullock plat, referred to lot 2 as a “water lot.” In short, there is nothing in the record that shows a contrary intent on the part of Green other than to extend the northern boundary of the three lots to the Fox River. Thus, the trial court was correct in granting the interveners’ motion for summary judgment.

Finally, the defendant argues that summary judgment in favor of the intervenors was inappropriate because of its affirmative defense and counterclaims. The defendant’s affirmative defense alleges, pursuant to section 13 — 118 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 118), that the 40-year limitation on claims to real estate had expired, thus barring the plaintiffs’ quiet title action. This statute, however, does not apply in this case because there are competing chains of title. (Exchange National Bank v. Lawndale National Bank (1968), 41 Ill. 2d 316.) Further, the defendant’s counterclaims, which are based on theories of adverse possession, actual possession and payment of taxes, payment of taxes on vacant land, and accretion, are insufficient as a matter of law and undisputed fact. Initially, with respect to all of the counterclaims, the defendant fails to expressly describe the real estate which it claims through its various theories. More specifically, the defendant’s attempt to argue that it acquired the property through adverse possession fails since the defendant did not allege facts to prove hostile and exclusive possession of the land for the requisite period. Second, the theories of actual possession and payment of taxes (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 109), and payment of taxes on vacant land (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 110), are inapplicable to this case. Both theories require color of title and no color of title exists where the property is not described with reasonable certainty and where there is a dispute over a boundary line that has never been definitely established. (Chicago & Northwestern Ry. Co. v. Kennedy (1931), 344 Ill. 309.) Lastly, the defendant’s counterclaim of accretion cannot prevail against the intervenors, who, as riparian owners of the subject premises, are entitled to all accretions along the bank of the Fox River.

For all of the foregoing reasons, the decision of the La Salle County circuit court is affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.


text:
    FRANK K. PHELPS et al., Plaintiffs-Appellees, v. MICHAEL J. O’MALLEY, Defendant-Appellant.
    Second District
    No. 2—88—1149
    Opinion filed August 15, 1989.

      Uve R. Jerzy, of Mandel, Lipton & Stevenson, Ltd., of Chicago (R. Peter Carey, of counsel), for appellant.
    David I. Herbst and Martha L. Ashenhurst, both of Portes, Sharp, Herbst & Kravets, Ltd., of Chicago (Steven H. Kuh, of counsel), for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

This case comes on appeal for a second time. Defendant, Michael O’Malley, appeals from a $379,000 judgment entered against him on remand from this court. In entering this judgment, the trial court followed our mandate to enter judgment for the plaintiff for $379,000. The trial court made the judgment effective from June 26, 1986, the date of the original judgment, thus requiring defendant to pay statutory interest from this earlier date.

O’Malley first appealed after the trial court entered judgment against him for $387,500 for breach of a real estate contract. We upheld the lower court’s finding that defendant breached a contract, but ruled the court erred in allowing plaintiffs’ expert to testify as to the market value of the properties subject to sale because plaintiffs failed to comply with Supreme Court Rule 220. (Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 226.) We then ruled that, rather than remand the cause for damages, we would, pursuant to Supreme Court Rule 366 (107 Ill. 2d R. 366), set plaintiffs’ damages according to the evidence of actual sales prices introduced by defendant. We ordered the trial court to enter judgment against defendant for $379,000. (Phelps, 159 Ill. App. 3d at 226.) Defendant filed a petition for rehearing which we denied. Defendant’s petition to the supreme court for leave to appeal was also denied. Phelps, 159 Ill. App. 3d 214, appeal denied (1987), 117 Ill. 2d 553.

On this appeal, defendant raises two issues: (1) whether this court exceeded its authority in setting a damage award; (2) whether the trial court erred when it made judgment on remand effective as of the first judgment date, thus allowing for statutory interest from this date. Plaintiffs respond that defendant’s first issue is barred by law of the case. For the reasons set forth below, we affirm.

The facts that brought about this lawsuit are outlined in our first decision and need not be set out again for this appeal. See Phelps, 159 Ill. App. 3d 214.

Initially, we address plaintiffs’ motion on appeal asking this court to supplement the record with defendant’s petition for rehearing and petition for leave to appeal. Defendant objects to this motion; however, we find no merit to this objection. Both of these petitions are relevant to the issue on appeal. Under Supreme Court Rule 329 (107 Ill. 2d R. 329), this court may order any corrections in the record that will aid the presentation of the questions involved on appeal. Thus, plaintiffs’ motion is granted. Secondly, plaintiffs’ motion to strike from the record the testimony of Clarence Bruckner, which this court ruled should have been debarred, need not be decided in light of the disposition of this case.

Defendant’s first contention on appeal is that the appellate court exceeded its authority under Supreme Court Rule 366 (107 Ill. 2d R. 366) when we set damages against defendant based on evidence introduced by defendant of the sales prices of the properties which were to be sold under the contract. Plaintiffs correctly respond that this issue of appeal is improper. Defendant is improperly using a second appeal to ask this court to reconsider its earlier decision. The earlier holding established the law of the case, and an appellate court is bound by its holding on an appeal from the judgment of the circuit court entered on remand. (PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 312; see also Krentz v. Johnson (1978), 59 Ill. App. 3d 791; Foss Park District v. First National Bank (1974), 19 Ill. App. 3d 553.) When an appellate court reverses and remands the cause with a specific mandate, the only proper issue on a second appeal is whether the trial court’s order is in accord with the mandate. (Anundson v. City of Chicago (1973), 15 Ill. App. 3d 1032, 1037.) Ordinarily, a party seeking review of an appellate decision in an Illinois court has two options which do not include a second appeal. The party may file a petition for rehearing, and the party may also petition for leave to appeal to the Illinois Supreme Court. Krentz, 59 Ill. App. 3d at 792.

Defendant contends the law of the case does not apply here because he has not had an opportunity to fully and fairly litigate the issue decided by the appellate court. Defendant states that the issue of whether retail sales prices were an adequate measure of fair market value was not raised at the trial level or in the appellate briefs. Since it was not until the appellate court set damages on this basis that this became an issue, defendant contends he should be given the opportunity to address this issue in this appeal. Defendant cites MidState Savings & Loan Association v. Illinois Insurance Exchange, Inc. (1988), 175 Ill. App. 3d 265, for this proposition, but this case does not address defendant’s contention. In this case, the issue of whether a party had a fair opportunity to litigate an issue decided on appeal was never discussed. The case merely stands as an example of an appellate court using its power under Supreme Court Rule 366 (107 Ill. 2d R. 366).

Defendant fails to recognize that he has not been denied an opportunity to address his contentions to this court. This opportunity is provided to all parties of appeal through a petition for rehearing. Defendant filed a petition for rehearing and argued that striking plaintiffs’ expert’s testimony left the record without sufficient evidence to determine fair market value of the property. Defendant also contended that he would not have introduced the evidence of the sales prices had the expert been debarred. Furthermore, he argued that evidence of the lots’ sales prices did not reveal the fair market value at the time of breach because the sales, with the exception of one, occurred after the breach, some almost two years later. Defendant also argued that the gross sales figure used by this court should have been reduced by the costs involved in the sales and contended that these costs would reduce plaintiffs’ award to $48,648. It is clear from defendant’s petition that he took full advantage of the opportunity to present his contentions to this court. Though defendant did not make the argument made in this appeal that the trial court exceeded its authority, defendant clearly had an opportunity to make this argument and failed to do so. Defendant’s arguments in his petition for rehearing were considered and denied. Defendant also took advantage of his right to petition the supreme court, and this was denied. Thus, defendant has had his opportunities. At some point, there, must be an end to litigation. PSL, 86 Ill. 2d at 313.

In his reply brief, defendant cites two exceptions where an appellate court may disregard the law of the case: (1) where, subsequent to the first appeal, the supreme court makes a contrary ruling on the precise issues of law on which the appellate court based its decision; and (2) where the appellate court remands for a new trial on all the issues and the appellate court determines that its first decision was palpably erroneous. (Yonan v. Oak Park Federal Savings & Loan Association (1975), 27 Ill. App. 3d 967, 971; Weiland Tool & Manufacturing Co. v. Whitney (1968), 100 Ill. App. 2d 116, rev’d on other grounds (1969), 44 Ill. 2d 105.) The rationale for this second exception is that the appellate court would be reaching a decision based on a new and different trial. Yonan, 27 Ill. App. 3d 967.

• 6 Defendant does not argue for application of the first exception, but cites three cases that have applied the palpably erroneous exception and argues that these cases support applying it here. In Stallman v. Youngquist (1987), 152 Ill. App. 3d 683, 689, rev’d on other grounds (1988), 125 Ill. 2d 267, the court noted that in its first appellate decision, it recognized the parent-child tort-immunity doctrine as the law in Illinois, but it reversed this decision in its second opinion, applying the palpably erroneous standard. The court noted that the palpably erroneous exception applies only where the court remands the case for a new trial of all the issues. The court held that since it remanded Stallman I for a factual determination, and the parties had an opportunity to create a new record, this exception applied, even though the parties did not have a new trial. In Sjostrom v. Sproule (1964), 49 Ill. App. 2d 451, the appellate court applied the palpably erroneous exception where the cause was remanded to try one issue and the parties stipulated to the earlier record for the judge’s determination. In Thomason v. Chicago Motor Coach Co. (1939), 298 Ill. App. 626 (abstract of opinion), the appellate court remanded the cause for a new trial and on the second appeal applied the palpably erroneous exception in reversing its first decision.

These three cases are distinguished from the instant case. In each, the requirement for applying the palpably erroneous exception, that the appellate court remand for a new trial, was met. Here, the appellate court did not remand for a new determination, but instead set damages at a different amount and ordered the trial court to follow its mandate. Defendant argues that adherence to the requirement that the appellate court remand for a new trial exalts form over substance. Defendant points out that in Stallman, there was no new trial on remand, but merely a new motion for summary judgment and an affidavit filed by defendant. (Stallman, 152 Ill. App. 3d at 689.) Also, in Sjostrom, there was no new trial. The parties simply stipulated to the first record. (Sjostrom, 49 Ill. App. 2d at 452.) Defendant argues that the rationale for applying the palpably erroneous exception, that the case after remand would concern different evidence, holds no weight in light of the decision in Stallman. Defendant’s position is somewhat persuasive. It is difficult to explain these decisions based on the rationale that remanding for a new trial will create a new record. Nonetheless, the fact remains that in each of these cases the requirement that the cause be remanded for a new trial was met. Moreover, we are not persuaded that these cases stand for an abandonment of this requirement. The law of the case is a firmly established doctrine which should be followed except in rare exceptions. (Presbyterian Distribution Service v. Chicago National Bank (1962), 36 Ill. App. 2d 1, 4.) Thus, we will not apply the palpably erroneous exception to this case.

Defendant next challenges the trial court’s judgment on remand which the court purported to enter nunc pro tunc to June 26, 1986, the date of the trial court’s first judgment, and providing for statutory interest from June 26, 1986. We note that the trial court incorrectly termed the judgment on remand as a nunc pro tunc entry. This was not a nunc pro tunc entry. As stated in Black’s Law Dictionary, “nunc pro tunc” is “[a] phrase applied to acts allowed to be done after the time when they should be done, with a retroactive effect, i.e., with the same effect as if regularly done.” (Black’s Law Dictionary 964 (5th ed. 1979).) Here, the trial court was not allowing an act to be done that should have been done before. See Spears v. Spears (1977), 52 Ill. App. 3d 695, 698.

• 8 Defendant’s first contention concerning the trial court’s ruling is that in making the judgment effective from the first judgment date, the trial court was attempting to correct the court’s earlier error in computing damages. This argument is incoherent. Perhaps defendant means to argue that the trial court has attempted to subvert the mandate of the appellate court, which reduced the damage award; however, defendant alleges no facts to support this allegation, and none appear in the record.

Defendant next contends that, where an appellate court orders the trial court to enter judgment on remand, statutory interest does not begin to accrue until the trial court enters the latter judgment. Plaintiffs respond that section 2 — 1303 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1303) provides for interest from the initial judgment; therefore, it was proper to make the judgment in this case effective from the original judgment date. Section 2 — 1303 of the Code of Civil Procedure provides in pertinent part:

“When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment. *** The judgment debtor may by tender of payment of judgment, costs and interest accrued to the date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of an appeal, or other steps to reverse, vacate or modify the judgment.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1303.

It is clear that the filing of an appeal does not toll the accrual of statutory interest (see Pinkstaff v. Pennsylvania R.R. Co. (1964), 31 Ill. 2d 518), but it is not so clear what effect the appellate court’s decision should have on the accrual of this interest. Neither side has cited, nor has this court uncovered, Illinois case law that addresses the specific facts of this case, where the appellate court affirmed the finding of liability but set damages at a lower amount. Defendant cites Rosenbaum v. Rosenbaum (1981), 94 Ill. App. 3d 352, and Presbyterian Distribution Service v. Chicago National Bank (1962), 36 Ill. App. 2d 1, in support of his contention that statutory interest does not accrue until after the judgment on remand. In Rosenbaum, the appellate court reversed the trial court’s decision on the issue of attorney fees and remanded and ordered the court to recalculate the distribution. After recalculation, defendant argued that plaintiff should have to pay interest from the original trial court judgment. (Rosenbaum, 94 Ill. App. 3d at 353, 356.) The court held that where a portion of the original judgment was reversed and a new judgment was entered upon remand after recalculation by the trial court, the exact amount owed was not calculated until the disposition of the case following remandment. Therefore, interest on the judgment should run from the date of the new decree. (Rosenbaum, 94 Ill. App. 3d at 356.) The rationale for this rule is that the judgment debtor cannot protect against the accrual of interest by tendering payment when the amount is undetermined. (Rosenbaum, 94 Ill. App. 3d at 357.) In Presbyterian, the court remanded a cause with directions to the court to enter damages in accordance with the court’s directions. At the time the case was remanded, damages were undetermined. The court held that since the exact amount of damages was undetermined until the trial court disposed of the case on remand, statutory interest should run from the date of the amended decree. Presbyterian, 36 Ill. App. 2d at 6; see also Thatch v. Missouri Pacific R.R. Co. (1979), 69 Ill. App. 3d 48.

The above cases are distinguished from the instant case. In this case, the mandate by the appellate court did not leave damages undetermined. This court specifically provided that plaintiff should recover $379,000. Thus, the rationale for not applying statutory interest in Rosenbaum and Presbyterian does not apply to this case. Defendant was never denied an opportunity to halt the accrual of statutory interest.

The majority of States have held that where a money award has been modified on appeal and the only action necessary in the trial court is compliance with the mandate of the appellate court, interest on the award should accrue from the original judgment date. (See Annot., 4 A.L.R.3d 1221, 1223 (1965); 47 C.J.S. Interest & Usury §68, at 158 (1982).) We choose to follow the majority rule. In support of this holding is the supreme court case, Proctor Community Hospital v. Industrial Comm’n (1971), 50 Ill. 2d 7, which, though not directly on point, is instructive of the supreme court’s view of the application of statutory interest in light of appeal. In Proctor, the supreme court held that statutory interest accrued from the date of the original award, “notwithstanding that at an intermediate level of review the award was overturned and on further review reinstated.” (Proctor, 50 Ill. 2d at 9-10.) The respondent in Proctor argued that since the original award had been reversed, there was a period of time where respondent was not a judgment debtor; therefore, he was deprived of the privilege of stopping the accrual of interest. To this argument the supreme court said the following:

“Obviously a judgment debtor who terminates the accrual of interest in the manner provided in the statute runs the risk that even though he prevails in his appeal, the appellee will have dissipated the funds and he will be unable to effect recovery of the sums paid. There is nothing in the statute to prevent an appellee from taking the same risk and we find no arbitrary, unreasonable or discriminatory classification which renders the statute invalid.” Proctor, 50 Ill. 2d at 9.

Applying statutory interest from the date of the original judgment where the appellate court lowers the judgment is also fundamentally consistent with the approach taken in cases where the appellate court has increased the award. In Toro Petroleum Corp. v. Newell (1974), 33 Ill. App. 3d 223, 231, the appellate court held that defendant was required to pay interest on the original judgment from the date of that judgment to the date of reversal and then interest on the latter judgment from the date of the appellate court decision. (See also Owens v. Stokoe (1988), 170 Ill. App. 3d 179.) This holding makes sense since in this situation defendant could not have halted the accrual of interest on the latter judgment until after remand. The opposite is true in this case, however, where the judgment debtor realizes a reduction of liability after appeal. Here, the judgment debtor could have halted the total accrual of interest by initially paying the greater amount of the original judgment.

Finally, plaintiffs have moved this court to dismiss the first issue of defendant’s appeal and to award plaintiffs costs and attorney fees for raising a frivolous issue of appeal. This motion is denied. Defendant’s first issue of appeal is not totally frivolous given the existence of case law which has applied exceptions to the law of the case doctrine.

The judgment of the circuit court is affirmed.

Affirmed.

INGLIS and LINDBERG, JJ., concur.


author: JUSTICE NASH

text:
      In re MARRIAGE OF MARVIN S. HEAD, Petitioner-Appellee, and EVELYN J. HEAD, Respondent-Appellant.
    Second District
    No. 2—88—1222
    Opinion filed August 18, 1989.
    Peter M. Schlax, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellant.
    Robert L. Snook, Jr., of Law Offices of Robert L. Snook, of Waukegan, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Respondent, Evelyn Head, appeals from an order of the circuit court which denied her petition for child support arrearages against petitioner, Marvin Head. On appeal, Evelyn contends that a Kansas district court’s order issued pursuant to the revised Uniform Reciprocal Enforcement of Support Act (Uniform Support Act) (Kan. Stat. Ann. §23 — 451 et seq. (1988); compare with Ill. Rev. Stat. 1987, ch. 40, par. 1201 et seq.) did not modify or nullify an original Illinois support order which was entered when the parties dissolved their marriage.

On September 21, 1981, Evelyn and Marvin obtained the dissolution of their 22-year marriage in the circuit court of Lake County, Illinois. Both parties and the circuit court approved a marriage separation agreement which, in the relevant part, provided:

“That MARVIN S. HEAD shall pay to EVELYN J. HEAD the sum of $541.67 per month as and for support of the minor children, and said sum shall be reduced to $433.33 per month upon the emancipation, marriage or attainment of majority by the eldest child. Said payment for the support and maintenance of the minor children shall commence on the first day of the month immediately following the entry of any Judgment for Dissolution of this marriage that may be entered by the Court. Further, MARVIN S. HEAD shall have the right to claim the children as exemptions on his Income Tax Returns for the Federal tax as well as the State of Illinois Tax, and EVELYN J. HEAD will sign any necessary forms to approve such exemptions.”

Marvin failed to make support payments to Evelyn, and she then sought to enforce the support provision of the 1981 separation agreement by instituting a variety of court proceedings against him which included wage garnishment petitions, petitions for a rule to show cause, and a support arrearage petition. In February 1983, Evelyn filed a petition for support arrearages and an affidavit of arrearages pursuant to the Uniform Support Act (Ill. Rev. Stat. 1983, ch. 40, par. 1201 et seq.). The petition alleged that Marvin was $7,278.17 in arrears based on the 1981 separation agreement in which he had agreed to pay $541.67 per month in support. Evelyn’s petition requested that she be awarded prospective support of $541.67 per month, or whatever amount the court deemed fair and reasonable, together with any other relief provided for by law. In her petition, Evelyn claimed both of the parties’ children as dependents although the eldest child, Wanda, had become emancipated in February 1982.

Evelyn’s petition was sent to the clerk of the district court of Sedgwick County, Kansas, where Marvin resided, and Judge John Foulston of that court ordered him to appear for an April 11, 1983, hearing on the petition. Marvin was personally served with that order on February 22, 1983. When Marvin failed to appear at the April 11 hearing, Judge Foulston entered a judgment in Evelyn’s favor which directed Marvin to make prospective support payments of $250 per month and to make arrearage payments of $50 per month beginning May 1,1983.

In June 1988, Evelyn filed a petition for support arrearages in the Lake County, Illinois, circuit court. At the hearing, Marvin argued that the petition for support arrearages based on the 1981 judgment should be denied because the circuit court was obligated to give full faith and credit to the Kansas judgment. After the hearing was concluded, the circuit court made the following findings:

“1. That on February 7, 1983, Evelyn Head caused to be filed in the Circuit Court of the 19th Judicial Circuit, Lake County, Illinois, a Petition for Support under the Uniform Reciptrocal [sic] Support Enforcement Act, said Petition bearing General Number 83 — R—38.
2. That in her prayer for relief in said Petition, Evelyn Head requested an Order of Support, ‘directed to said Respondent for $541.67 per month or what may be deemed to be fair and reasonable, and for such further relief as the law provides.’
a. The amount requested of $541.67 was incorrect as only one child remained emancepated [sic].
3. That by filing a Petition with the above-quoted language, Evelyn Head authorized a modification of the child support order originally set forth in the Judgment for Dissolution entered 9/21/81 in the above-captioned matter for purposes of URESA.
4. That on April 18, 1983, Judge John E. Foulston of the 18th Judicial District, District Court, Sedgwick County, Kansas, Domestic Department in Case NO. 83 — R—38 found that Respondent Marvin Stanley Head should pay continuing child support in the sum of $230.00 per month, and so ordered such payments to commence May 1, 1983.
5. That for Evelyn Head to now assert a child support arrearage based upon the originally ordered' monthly child support amount would permit a fraud upon the Court.
6. That Evelyn Head is estopped from petitioning for a Judgment for child support arrearage based upon the Judgment for Dissolution entered in this matter on 9/21/81.
7. That between 12/1/82 and 9/19/88 there was owing to Evelyn Head in child support $15,965.00.
8. That from 12/1/82 to 9/19/88 there was due and owing to Evelyn Head for maintenance $20,700.00.
9. That from 12/1/82 to 9/19/88 there was due and owing to Evelyn Head for a marital property settlement $6,900.00
10. That from 12/1/82 to 9/19/88 Respondent, Marvin Head, has made payments to Evelyn Head totaling $31,158.70.
11. That from 12/1/82 to 9/19/88 there is a resulting, combined arrearage for child support, maintenance and a marital property settlement totaling $12,407.00.”

A judgment of $12,407 was entered against Marvin, and Evelyn appeals from that order.

The sole issue raised on appeal is whether the Kansas support order issued pursuant to Kansas’ Uniform Support Act modified or superseded the original 1981 Illinois order of support. A similar issue was raised in In re Marriage of Gifford (1988), 122 Ill. 2d 34, 521 N.E.2d 929. In Gifford, our supreme court was confronted with the issue of whether a Michigan support order issued pursuant to Michigan’s Uniform Support Act modified or superseded an order of support which was initially entered in Illinois. (Gifford, 122 Ill. 2d at 36, 521 N.E.2d at 929.) To resolve that issue, our supreme court applied the antisupersession clause of Michigan’s Uniform Support Act, and we begin our analysis with the antisupersession clause of Kansas’ Uniform Support Act.

In relevant part, section 23 — 480 of the Kansas Statutes Annotated provides:

“A support order made by a court of this state pursuant to this act does not nullify and is not nullified by a support order made by a court of this state pursuant to any other law or by a support order made by a court of any other state pursuant to a substantially similar act or any other law, regardless of priority of issuance, unless otherwise specifically provided by the court.” (Emphasis added.) (Kan. Stat. Ann. §23 — 480 (1988).)

We note that section 23 — 480 is identical to section 31 of the Uniform Support Act (Ill. Rev. Stat. 1983, ch. 40, par. 1231). According to the express provisions of section 23 — 480, an order entered pursuant to the Uniform Support Act does not nullify a previous support order unless such order specifically so provides. (Wornkey v. Wornkey (1988), 12 Kan. App. 2d 506, 512, 749 P.2d 1045, 1050.) Therefore, an antisupersession clause allows a responding court to set an amount of support which differs from that set in the original support order while not modifying or superseding the original order. See Gifford, 122 Ill. 2d at 40, 521 N.E.2d at 431.

Marvin cites Sullivan v. Sullivan (1981), 98 Ill. App. 3d 928, 424 N.E.2d 957, for the proposition that under the Uniform Support Act, an Illinois court must give full faith and credit to a responding State's modification order where that order is based on a finding of changed circumstances. He argues that because there was a change of circumstances in this case by reason of the emancipation of the parties’ eldest child, we should uphold the Kansas district court’s order as a modification of the 1981 Illinois separation agreement.

The record does not support Marvin’s assertion that the Kansas court modified the 1981 separation agreement based on a change in circumstances. The Kansas court’s order does not state that it intended to nullify the 1981 Illinois support order, nor does it set forth any of the reasons for which Marvin’s support obligation was there reduced. In the absence of a clear statement of an intent to nullify a prior support order, we consider the Kansas district court’s order as merely providing Evelyn with an additional and separate means for enforcing Marvin’s support obligations. See Wornkey, 12 Kan. App. 2d at 512, 749 P.2d at 1050.

We conclude that the circuit court erred when it found that Evelyn authorized a modification of Marvin's support obligations under the Uniform Support Act and that she was estopped from pursuing her rights under the 1981 separation agreement. That portion of the circuit court’s order which denied Evelyn recovery for arrearages due under the 1981 separation agreement must be reversed.

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

Reversed and remanded.

McLAREN and REINHARD, JJ., concur.