author: JUSTICE McNAMARA

text:
      In re MARRIAGE OF CHARANJEET RAI, Petitioner-Appellant, and KRISHAN D. RAI, Respondent-Appellee.
    First District (6th Division)
    No. 1—87—3562
    Opinion filed September 29, 1989.

      William Harte, Ltd., of Chicago (William Harte, of counsel), for appellant.
    Joel Ostrow, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

The trial court dissolved the 13-year marriage of petitioner, Dr. Charanjeet Rai (the wife), and respondent, Krishan D. Rai (the husband), and following a bench trial, determined their property rights. Petitioner appeals, contending that the trial court erred in awarding an inequitable distribution of marital property in favor of respondent, who made little or no homemaker or financial contribution, and who dissipated the marital assets; that the trial court erred in failing to determine respondent’s obligation to support the parties’ two minor children; and that the trial court abused its discretion in ordering petitioner to pay a portion of respondent’s attorney fees. Petitioner asks this court to enter judgment in her favor for an amount “significantly more than 50% of the marital assets,” or in the alternative, to remand for a new trial on all issues.

The parties were married on May 24, 1970, in India. Petitioner is a licensed physician, specializing in obstetrics and gynecology, earning over $200,000 per year at the time of the 1983 dissolution of marriage. Respondent has several degrees in engineering, but has not worked in that field since 1975. Instead, he claimed some part in running petitioner’s medical practice, and he invested in several restaurants, which allegedly brought him a net income of $4,800 during the entire period of their marriage.

The parties’ daughter, Tanya, was born June 1, 1973, and a son Erik was born January 1, 1975. Petitioner filed for dissolution of the marriage on June 17, 1982. She retains custody of the minor children, and neither the dissolution nor custody is an issue in this case. Petitioner alleged in her petition for dissolution that respondent dissipated the marital assets and should receive no portion of the marital estate. On October 12, 1983, the trial court granted a bifurcated judgment for dissolution of marriage and reserved all remaining issues for trial. The trial took place over a two-year period, involving 19 days of hearings. Both sides offered evidence as to their marital assets; their respective efforts in caring for the children and home; their respective financial contributions; and respondent’s dissipation of marital assets.

On October 15, 1986, the trial court rendered an oral decision on the remaining bifurcated issues. On February 6, 1987, the court entered an order relative to valuations of the marital assets. On April 2, 1987, a supplemental judgment for dissolution of marriage was entered.

On October 27, 1987, the trial court entered a final order, distributing the property as follows:

To Respondent:
1. Oak Brook home, including the debt thereon. (Value per respondent: $117,931; value per petitioner: $91,533; value per court: $104,732.) This home was built in 1981 for investment purposes and for use on weekends by petitioner and the children.
2. Petitioner would pay Oak Brook home’s mortgage principál, interest, taxes and insurance for three months following entry of trial court judgment. Upon sale of this home, respondent could keep a net distribution of $370,000.
3. Pension Accounts — one-half interest, not including the Keoughs or IRA’s transferred to avoid current tax consequences to petitioner. (Value per respondent: $232,680; value per petitioner: $114,000; total value as of October 12, 1983: per court $247,000.)
To Petitioner:
1. Lake Shore Drive Condominium. (Value per respondent: $166,000; value per petitioner: $150,000; value per court: $158,000.) The court found this was the family home where petitioner and the minor children resided.
2. Keough Plan and IRA’s. (Value per respondent: $46,815; value per petitioner: $35,200; value as of October 1983, per court: $35,200.)
3. Automobiles, furniture, furnishings and jewelry in her possession and including the contents of both homes. (Value per respondent: $172,100; value per petitioner: $50,000; minimal value per court: $100,000.)
4. Stocks and Bonds. (Value per respondent: $99,700; value per petitioner: $12,500; minimum value as of October 1983, per court: $12,500.)
5. Medical practice, as nonmarital property. (Value per respondent: $150,000; value per petitioner: $40,000 to 60,000; value per court: $70,000.)
6. Oak Brook home. Petitioner will retain a lien on any amount in excess of a net distribution to respondent of $370,000, after deducting costs of sale.
7. Pension accounts — one-half thereof.

In regard to the dissipation of marital funds, the court found on April 2, 1987, that “neither party has dissipated the marital property.” In its memorandum of opinion, the court found that respondent’s investment in a vending machine business and in restaurants may have been unprofitable, but did not amount to dissipation. Such business ventures were considered, however, in assessing respondent’s contribution to the acquisition of marital assets.

In regard to respondent’s contributions as a homemaker, the court found that his contributions were not so minimal or negative to preclude him from any significant share in the marital estate. The court went on to state: “[t]he fact that Dr. Rai’s income has generated all of the assets acquired by the parties since 1975 together with the fact that she has been the sole financial support of the minor children of the parties since that time, equitably requires that she receive a significantly greater apportionment of the marital assets.” The court further stated “[d]ue to Dr. Rai’s superior capability to acquire future assets and income, Mr. Rai is entitled to a[n] equitable share in the marital assets.” The court originally directed petitioner to pay her husband monthly maintenance but, noting among other things that respondent had remarried prior to the supplemental judgment, ordered that petitioner was not required to pay maintenance to her husband.

In regard to child support, the trial court found that petitioner had been the sole economic support of the children since 1975. “[D]ue to the economic circumstances of Mr. Rai, it cannot be anticipated that any monetary support contributions from him will be forthcoming in the foreseeable future.” The trial court reserved the issue of respondent’s payment of child support.

In regard to attorney fees, the court found that in light of his property award, respondent had a substantial capacity to pay attorney fees and costs. The court held, however, that in view of petitioner’s property award and greatly superior earning capacity, it was appropriate that she pay $65,000 of respondent’s attorney fees and costs.

Petitioner contends that the trial court abused its discretion when it inequitably distributed marital property in favor of respondent. Petitioner points to the factors of respondent’s lack of contribution either financially or as a homemaker; respondent’s dissipation of assets; and respondent’s employability and opportunity for future acquisition of assets and income.

From our view of the record, we agree with the trial court that because of respondent’s contribution as a homemaker, he was entitled to a significant share of the marital assets. Both sides offered detailed testimony as to whether respondent made a contribution as a homemaker. Petitioner offered strong evidence that respondent made no contribution as a homemaker. Yet the court’s finding that respondent’s contribution as a homemaker was not so minimal or negative as to deprive him of a significant share of the assets is not against the manifest weight of the evidence. We also agree with the trial court’s determination that because she generated all of the marital assets and was the sole support of the minor children, petitioner would receive a significantly greater apportionment of the marital assets.

Petitioner argues, however, that despite its statement, the trial court did in fact distribute the marital property in favor of respondent. Petitioner maintains that respondent received over 50% of the assets, urging that she received an award of $364,200 while respondent received $558,000.

We find that we cannot resolve that issue because of the apparent unresolved conflict as to the value of the Oak Brook property. Petitioner submitted a figure of $91,533 as its net equity. Respondent submitted a figure of $117,931 as its net worth, but testified that the property had a net worth of $900,000. The trial court found that the property had a net worth of $104,732, but ordered that petitioner retain a lien on any amount in excess of a net distribution to respondent of $370,000, after deducting costs of sale of the Oak Brook property. In view of the obvious uncertainty of that valuation, we cannot determine whether the trial court distributed the marital assets in favor of respondent. We find, however, that the trial court erred in holding that respondent had not dissipated marital assets. Consequently, the matter must be remanded in order that the trial court may grant a greater share of the marital assets to petitioner in light of that dissipation.

Dissipation has been defined as one spouse’s use of marital property for his or her own benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. (In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 453 N.E.2d 866.) A party can be found guilty of dissipation even though the act occurred prior to separation or prior to the commencement of the dissolution proceedings. (In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 471 N.E.2d 1008; In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087.) Whether a given course of conduct constitutes dissipation depends upon the facts of each case. (In re Marriage of Drummond (1987), 156 Ill. App. 3d 672, 509 N.E.2d 707.) The explanation given by the spouse charged with dissipation as to how funds were spent requires the trial court to determine his or her credibility. (In re Marriage of Lord (1984), 125 Ill. App. 3d 1, 465 N.E.2d 151.) Where the funds are spent for legitimate family expenses, and necessary and appropriate purposes, there is no dissipation. (In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 453 N.E.2d 866.) The spouse charged with dissipation of marital funds has the burden of showing, by clear and specific evidence, how the funds were spent. (In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 471 N.E.2d 1008.) If expenditures are not documented adequately by the person charged with dissipation, courts will affirm a finding of dissipation. (In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 471 N.E.2d 1008.) General and vague statements that funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation. (In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 507 N.E.2d 207.) Whether there was dissipation is a matter for the trial court’s discretion, and a finding concerning dissipation will not be disturbed unless it is against the manifest weight of the evidence. (In re Marriage of Ryman (1988), 172 Ill. App. 3d 599, 527 N.E.2d 18.) In the present case, we believe that the trial court’s finding of no dissipation is against the manifest weight of the evidence.

Initially, we observe that strong evidence was presented that the marriage began breaking down in 1976. Navas testified that the marital relationship was not good during the mid-1970’s. Dr. Williams testified for petitioner that the marital difficulties were obvious in 1976. Dr. Ilahi testified that the marital breakdown was obvious in the mid or late 1970’s. Petitioner testified that the marital problems had been ongoing since 1976. There is sufficient evidence that the breakdown began in 1976.

In April 1976, respondent went into the restaurant business. He owned and operated the Green Garden Mandarin Restaurant, but never received any income from that restaurant. In 1978, respondent formed a corporation to open the Copa Casino restaurant (later called the Tropic Zone). The bartender and waiter ran it until October 1980, when respondent began to run it. In 1984, respondent made $7,000 from the restaurant, all in cash. Respondent had worked as an engineer from 1965 to 1975. In 1975 he chose to stop working in that field.

With regard to concealment, dissipation and the purpose of his many expenditures, we note that respondent testified that he was also known as “Chris,” or “Krishan.” He had no account in another name. Having so stated, he then admitted having one account in the name of “Rai K. Dave” and one in the name of “Dave K. Rai.” Respondent could not explain why the bank used those names on at least 20 statements over a three-year period. Although respondent never supplied those names to the bank, he signed those names on checks. Respondent used separate accounts in order to keep track of how much money he was losing in Green Garden.

Respondent testified that deposits to his account came from selling stock out of the parties’ “Merrill-Lynch joint account” or from “the [medical] business — personal joint account.” He would transfer it into his single account. Petitioner could not write checks on the single account. Respondent then took petitioner’s salary from the joint account and placed it in his separate account. Respondent did not remember if he asked her. The funds from his separate account were rarely used for anything but respondent’s restaurant business.

From 1978 through 1982, the two restaurants earned gross receipts of $40,000 to $70,000. He paid the employees out of those receipts. He paid the employees by check until 1982, when he began paying them in cash. Respondent made deposits, and he kept some of the money. He placed the money in the “Rai K. Dave” account. He never gave any of the funds to his wife or the children.

Stuart Levin, an accountant testifying for petitioner, offered significant information regarding funds earned in respondent’s restaurant businesses. Levin testified that $190,000 in “loans” were repaid to respondent from the businesses. In addition, the restaurant tax returns were not prepared properly. A missing $250,000 was needed to make the returns balance properly. Either income was understated or the amount which respondent used to fund the business was understated by $250,000. Also, while there were heavy losses, there was no indication of where the money came from to fund those losses, i.e., the source of the funds used to operate the businesses on a continuing loss basis. On the returns, in 1979 “all of a sudden, all this past money missing *** magically appears on a return in one year.” Levin could not determine whether the missing $250,000 came from loans to the businesses by respondent, or “whether it was unreported receipts.” It was impossible for Levin to evaluate the restaurant businesses.

Levin also noted that the reported wages paid to employees were extremely low. For example, in fiscal year ending 1981, the restaurant paid $1,420 in wages. Even at minimum wage, the figures averaged out to 300 hours per year, which would mean less than one hour of work a day per person.

Petitioner testified that respondent often told her that the restaurants were earning money. He brought home $500 to $1,000 in cash each night, and would put it in a safe deposit box. In 1977 or 1978, he told her that $30,000 was stolen from a box he kept in the restaurant. Respondent told her many times that he made $100,000 to $150,000 in cash each year. He also kept cash in the bedroom closet. In 1980, he kept $50,000 there.

Respondent testified that he could have deposited petitioner’s public aid reimbursement checks in his account “to use for business purposes if I am losing money.” This included a $2,417 public aid check in 1978. Petitioner testified that the check was stamped for deposit in the medical account. That stamp was crossed off, was signed by “Rai K. David,” and was deposited into respondent’s account.

Respondent often took money from the medical account as his wife’s salary and deposited it in his own account. Respondent could not remember what he did with the funds, totalling thousands of dollars, which he took from the medical account by writing checks made out to respondent, signing petitioner’s name.

On November 17, 1976, respondent paid $15,000 to one account, and on December 31, 1976, he paid $13,000 to another account, signing petitioner’s name to the checks. Respondent testified that the $13,000 went to the pension fund, but petitioner introduced a different check for the same amount, written one day earlier which showed the pension account number. Respondent testified that from the $15,000 check, $5,000 went into the medical account, and $10,000 was used to buy a dining room set. Petitioner, however, introduced photographs which established that the dining room set was purchased the previous year.

Respondent stated that he paid restaurant employees from the medical account as wages for cleaning petitioner’s office. Petitioner offered corroborated evidence that no restaurant employee ever cleaned her office.

Respondent stated that he paid a public relations man several thousand dollars in 1977 from the medical account for both the restaurant and medical practice public relations advice. The medical practice paid for all of it because the medical practice “was benefiting more” than the restaurant. Petitioner offered corroborated testimony that no public relations work was ever done for the medical practice.

Respondent paid electric bills from the medical account, but admitted it could have been for the restaurant since the building in which the medical practice was located included electric service as part of the rent.

Respondent testified that he paid Antonio Salas for painting the medical office, paid Sidney Supply, paid a plumber, and made monthly payments to a heating company, all of which were medical practice expenses. Petitioner testified that she never heard of Salas. Sidney Supply was never used for the medical office. The heating company serviced the air conditioning at her office once, but it was three years after respondent wrote several checks to the company. Petitioner’s building provided heat.

Respondent testified that he often took money from the “joint account,” which was the account for the medical practice. “I am treating that as a joint account” because it was a “family business which we were doing.” Respondent testified that he also kept a safe deposit box from 1975 to 1981. In 1976, he began putting cash from the medical practice into the box.

Respondent also admitted charging things and signing petitioner’s name on her American Express account. In 1979 or 1980, he used the account to pay a travel agent for a trip, but took a $2,000 cash refund. Petitioner did not give permission for that transaction. Petitioner testified that respondent did not have permission to use the American Express account.

Respondent testified that he signed his wife’s name to checks and documents with her permission:

“It was the understanding between my wife and myself that Dr. Rai is very, very busy person. So, she doesn’t have time to sign and pay whoever comes and looks for Dr. Rai. So, when they come, I just sign it. and I give it to them. Whomever comes. But she has to give me the authority to issue the checks.
***
Well, when I say authority, it was an understanding between Dr. Rai and me. When Dr. Rai is busy, I take care of her business, collect the money, sign the checks when Dr. Rai doesn’t have the time.”

Respondent initially testified that he made daily bank deposits for the medical practice until 1980 and that petitioner herself made out the deposit slips. He then stated that petitioner only made out the deposit slips when she had time. At his deposition, respondent stated that he had never prepared a deposit slip.

Petitioner testified that she never authorized respondent to sign her name on the medical practice checking account. She first learned of it when her attorney collected documents for the divorce proceedings.

We find no evidence that petitioner was an active participant in the manner in which respondent disposed of, concealed and dissipated marital assets. (Cf. In re Marriage of Ryman (1988), 172 Ill. App. 3d 599, 527 N.E.2d 18 (husband active participant in wife’s purchase of $8,000 car; abuse of discretion to find wife dissipated that asset).) The evidence shows that petitioner, while a physician of some sophistication, had little or no knowledge as to what her husband was doing with the substantial funds she earned. (See In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 507 N.E.2d 207 (court upheld finding that the husband, a homemaker, dissipated over $2 million of marital assets earned by the wife, a psychiatrist).) An abuse of discretion occurs where no reasonable person would take the view of the trial court. (In re Marriage of Los (1985), 136 Ill. App. 3d 26, 482 N.E.2d 1022.) We conclude that the trial court’s finding that respondent did not dissipate assets was an abuse of discretion. See Klingberg v. Klingberg (1979), 68 Ill. App. 3d 513, 386 N.E.2d 517.

Respondent here has failed to establish by clear and specific evidence how the funds were spent or that he used them for marital purposes. (See In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 471 N.E.2d 1008; In re Marriage of Greenberg (1981), 102 Ill. App. 3d 938, 429 N.E.2d 1334.) Respondent gave vague statements that the funds were spent on certain items, but petitioner often established that respondent’s testimony was false. Respondent also admitted that he was unsure of where the money went or how the funds were spent.

Respondent has been caught in a dilemma. On the one hand, he has tried to show that he worked hard to run the medical practice, in an unsuccessful attempt to persuade the trial court to find that he had generated marital assets. On the other hand, he has tried to prove he had nothing to do with the operation of the medical practice in an attempt to establish that he could not have dissipated funds, or that petitioner acquiesced in the alleged dissipation.

Respondent’s income from the restaurant business was far from clear since he operated on a cash basis and his tax returns did not support this testimony. Respondent failed to explain the numerous discrepancies in the record. (See In re Marriage of Cook (1983), 117 Ill. App. 3d 844, 453 N.E.2d 1357.) Much of respondent’s income was unreported and use of that money constituted dissipation. See In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 500 N.E.2d 612.

After the marital problems became obvious in 1976, respondent concealed, manipulated and dissipated marital funds. (See In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087.) His vague, contradictory explanations for existence and the use of the funds failed to meet the burden of establishing by clear and specific evidence how the funds were spent for marital expenses. (See In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 511 N.E.2d 676.) Moreover, many of the expenditures were not for marital purposes. See In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 511 N.E.2d 676.

The evidence demonstrates blatant dissipation and complete failure to account for inordinate amounts of missing funds. (See In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 471 N.E.2d 1008.) Respondent was unable or unwilling to explain the losses. His inconsistent, vague testimony was unsupported by any credible documentation. Respondent lied with respect to much of his testimony. He made no substantial financial contribution after early 1975, bringing in only a few thousand dollars in eight years. He diverted many thousands of dollars for his own use, hid assets, and spent huge sums without petitioner’s knowledge. Respondent altered financial documents and misled petitioner regarding his income and investments. He deprived the medical practice of great sums of money, and falsified petitioner’s name to documents, all while he was allegedly unemployed and earning nothing. See In re Marriage of Westcott (1987), 163 Ill. App. 3d 168, 516 N.E.2d 566.

Thus, there is overwhelming evidence of respondent’s dissipation of a large portion of the assets earned by petitioner. We believe the trial court failed to adequately consider this evidence in distributing the marital assets. Consequently, we remand the cause so that the trial court may conduct hearings enabling petitioner to receive a greater portion of the marital assets.

Petitioner also contends that the trial court erred when it failed to determine respondent’s obligation to support the parties’ two minor children. We agree. Although we are remanding the cause in order that petitioner may receive a more favorable distribution of the marital assets, it is apparent that respondent will still receive an award sufficient to support himself and at the same time make a contribution to the support of his children. Moreover, respondent is an engineer who worked in that field from 1965 to 1975. In 1975, he chose to stop working in the field where he received several degrees and had 10 years’ experience. While respondent offered evidence that he was unemployable, he also agrees that a father must recognize his obligation to contribute to the support of his children when he has the ability to do so. Respondent also asserts that he has worked all his life and will continue to do so. We do not believe that because children receive adequate support as a result of one parent’s efforts the other parent is excused from all obligations of support. We direct that the trial court determine the amount of child support respondent is required to pay. We reject, however, petitioner’s claim that a trust fund be established to insure respondent’s payment of child support.

Petitioner finally contends that the trial court abused its discretion in ordering her to contribute $65,000 toward respondent’s attorney fees and costs. We agree.

Respondent’s attorney fees were $154,369 plus costs of $14,190. It is evident that petitioner has the financial means to contribute to those fees and costs. At the same time, respondent will receive funds which will be adequate to pay those fees. Moreover, it was respondent’s actions in dissipating marital assets and, more importantly, his concealment of that dissipation which largely contributed to the necessity of those well-deserved fees. We do not believe that respondent should be rewarded by compelling petitioner to contribute to the payment of thdse fees. We find that the court erred in ordering petitioner to pay this portion of respondent’s attorney fees and costs.

For the foregoing reasons, the judgment of the circuit court of Cook County directing petitioner to pay a portion of respondent’s attorney fees and costs is reversed. The order distributing the marital property and the order reserving the obligation of respondent’s support of the minor children are reversed, and the cause is remanded for further proceedings in accordance with the views expressed herein.

Reversed and remanded.

EGAN, P.J., and QUINLAN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    MARY DOE et al., as Next Friends of John Doe et al., Two Unnamed Patients of Parkside Lodge of Illinois, d/b/a Parkside Youth Center, Inc., et al., Plaintiffs-Appellees and Cross-Appellants, v. JOHN THEODORE SANDERS, as Supervisor of the Illinois State Board of Education, et al., Defendants-Appellants and Cross-Appellees.
    First District (6th Division)
    Nos. 1—88—2915, 1—88—3023 cons.
    Opinion filed September 29, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellants John Theodore Sanders and Illinois State Board of Education.
    Clausen, Miller, Gorman, Caffrey & Witous, of Chicago (James T. Ferrini, Michael R. Grimm, and Edward M. Kay, of counsel), for appellant James L. Elliot.
    Mayer, Brown & Platt, of Chicago (Lynne M. Raimondo and Michael Alter, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, Mary Doe and Richard Jones, brought this declaratory action against State and local educational authorities seeking damages and injunctive relief in connection with payment for high school tuition for out-of-district students. Plaintiffs filed suit as next friends of minors John Doe and Jane Jones, two unnamed patients of plaintiff Parkside Lodge of Illinois, Inc., d/b/a Parkside Youth Center, Inc., a private residential center for treating alcohol and drug abuse.

Defendants include John Theodore Sanders, in his official capacity as Superintendent of the defendant Illinois State Board of Education, and the State Board of Education itself (these defendants referred to herein as State Board). The other defendants are Dr. James L. Elliot, in his official capacity as superintendent of defendant Maine Township High School District 207 Board of Education, and the Maine Township High School District 207 itself (these defendants referred to herein as local defendants, or local school district).

After the trial, the trial court entered judgment for plaintiffs with respect to their count alleging violation of the Elinois School Code (Ill. Rev. Stat. 1987, ch. 122, par. 1 — 1 et seq.). The court enjoined defendants from the practice of charging nonresident tuition to plaintiffs, and awarded damages for previous tuition payments in the amount of $60,731.60. The court denied plaintiffs any relief under section 504 of the Federal Rehabilitation Act of 1973 (29 U.S.C. §794 (1982)). The court stayed enforcement of its order pending appeal.

All defendants appeal from the trial court order entering judgment for plaintiffs on their count alleging violation of the Elinois School Code. Plaintiffs cross-appeal from the trial court order denying additional relief, including attorney fees, under the Rehabilitation Act.

On appeal, defendants contend that plaintiffs are not entitled to a free public education while residing at Parkside. They argue that the trial court erred in construing the tuition funding provision in section 18 — 3 of the Elinois School Code to include substance abuse centers for adolescents voluntarily placed by their parents and not requiring special education services. The local school district and its superintendent also argue on appeal that the school district is not liable for any tuition reimbursement because it does not set State educational policies; and that the trial court abused its discretion in denying them leave to file an answer.

Parkside is a nonprofit corporation affiliated with Lutheran General Hospital. It provides extended residential treatment for adolescent children suffering from alcoholism or other disabling substance abuse problems. There are only two other such facilities in Illinois. The patients at Parkside are from 14 to 21 years old, and they remain in residence for about 6 to 12 months.

Mary Jane Bressler, the director of Parkside, testified that it is very important that Parkside’s patients attend school because part of the recovery includes providing a normal environment for the adolescents. Most of the children in the program had experienced truancy and delinquency problems prior to coming to Parkside. In Bressler’s opinion, the Parkside patients are “maladjusted” because the substance abuse had adversely affected their emotional and behavioral ability to adjust to their environment. They were often several years behind their expected developmental level and suffered from various impairments limiting their major life activities.

Until the 1987-88 school year, Parkside patients attending Maine South High School received a free education. They were not required to pay nonresident tuition fees. Instead, the local school district received payments from the State pursuant to section 18 — 3 of the School Code.

On July 16, 1987, the State Board issued a memorandum to all school districts, including the local defendant school district, establishing a new statewide policy for funding the education of .children residing in substance abuse detoxification facilities. The State Board announced that children whose functioning was impaired by reason of dependency or addiction to alcohol or other substances were not “maladjusted” within the meaning of section 18 — 3, and therefore, such children were not eligible for educational funding under section 18 — 3. If the children’s parents reside outside the district, the local school district must charge tuition.

Parkside began paying the tuition of $6,500 per pupil per year, or $36.40 per day. As of September 15, 1988, Parkside had paid $60,731 in nonresident tuition fees. Payments were made directly to the local school district. As a result, Parkside was forced to cut admissions to its treatment program.

On August 5, 1988, the trial court entered an interlocutory order declaring that defendants had violated section 18 — 3; preliminarily and permanently enjoining defendants to provide plaintiffs with a free public education and tuition payments; and awarding money damages for tuition reimbursement to be calculated at a later date. The court ruled that defendants had not violated section 504 of the Rehabilitation Act.

The local defendants moved to vacate the order, contending they should not be held liable to plaintiffs because they were not responsible for setting education policies. Instead, they merely acted pursuant to their official duties to abide by policies set by the State Board of Education. The local defendants also sought leave to file an answer to the complaint instanter. The answer stated that by law they were not responsible for setting education policies and were not financially responsible for payment of plaintiffs’ tuition. Plaintiffs objected. The court denied the local defendants leave to file the answer instanter, noting that the answer added nothing that was not already before the court.

On September 15, 1988, the trial court entered final judgment declaring that all defendants violated section 18 — 3; permanently enjoining all defendants from requiring tuition payments; and awarding plaintiffs tuition reimbursement of $60,731.60.

Defendants contend that the trial court improperly construed and applied section 18 — 3 to encompass a short-term substance abuse center for adolescents who are voluntarily placed by their parents and do not need special educational services.

Section 18 — 3 of the Illinois School Code provides that the State shall pay tuition costs of maladjusted children residing in a home for maladjusted children:

“§18 — 3. Tuition of children from orphanages and children’s homes, or in State housing units.
When the children from any home for orphans, dependent, abandoned or maladjusted children maintained by any organization or association admitting to such home children from the State in general or when children residing in a school district wherein the State of Illinois maintains and operates any welfare, penal or educational institution on property owned by the State of Illinois, which contains houses, housing units or housing accommodations within a school district, attend grades kindergarten through 12 of the public schools maintained by that school district the Superintendent of Public Instruction shall direct the State Comptroller to pay a specified amount sufficient to pay the annual tuition cost of such children who attend such public schools ***.” Ill. Rev. Stat. 1987, ch. 122, par. 18 — 3.

Words used in a statute are to be given their ordinary and popularly understood meaning. (Maloney v. Bower (1986), 113 Ill. 2d 473, 498 N.E.2d 1102; Kozak v. Retirement Board of Firemen’s Annuity & Benefit Fund (1983), 95 Ill. 2d 211, 447 N.E.2d 394.) The plain language of section 18 — 3 compels the conclusion that the legislature intended the State to pay for the public education of children residing in homes for treatment of substance abuse. The term “maladjusted children” is not defined in the School Code. “Maladjusted” is commonly defined as “poorly or inadequately adjusted; lacking harmony with one’s environment from failure to reach a satisfactory adjustment between one’s desires and the conditions of one’s life.” (Webster’s Third New International Dictionary 1365 (1981).) Under this common and popularly understood meaning, children recovering from chemical addiction and requiring special services of an extended care residential treatment center are “maladjusted.”

Furthermore, until 1987, the State Board’s own policy was to fund the public school education of students residing at substance abuse residential treatment centers. Because section 18 — 3 was not repealed or amended when other sections of the School Code were being extensively revised, we presume that the legislature agreed with the long-term, consistent interpretation given to section 18 — 3 by the administrative agency charged with its enforcement. (See Citizens Utilities Co. v. Illinois Pollution Control Board (1985), 133 Ill. App. 3d 406, 478 N.E.2d 853; Pielet Brothers Trading, Inc. v. Pollution Control Board (1982), 110 Ill. App. 3d 752, 442 N.E.2d 1374.) The State’s decision in 1987 to reverse its policy does not alter this reasoning. See Immigration & Naturalization Service v. Cardoza-Fonseca (1987), 480 U.S. 421, 446 n.30, 94 L. Ed. 2d 434, 457 n.30, 107 S. Ct. 1207, 1221 n.30 (Court holds that agency interpretation which conflicts with agency’s earlier interpretation is entitled to considerably less deference than a consistently held agency view).

We hold, therefore, that under section 18 — 3, the State is required to pay for the public education of children residing at Parkside and attending public school within that local school district.

Defendants ask this court to construe section 18 — 3 in conjunction with two repealed definitions of “maladjusted” under other sections of the School Code. Defendants assert that this court “has authority to delete, modify, alter or supply language to a statute in order to achieve legislative intent.” We need not consider these former definitions. When the meaning of a statute is clear on its face, a court need look no further to ascertain legislative intent. In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 167.

Moreover, even if we were to read section 18 — 3 in conjunction with the former definitions, our holding would not change. Those sections related to special educational services. In 1947, “maladjusted children” meant children who were “truant, incorrigible, delinquent or in need of special education facilities designed to prevent their becoming truant, incorrigible or delinquent.” (Ill. Rev. Stat. 1947, ch. 122, par. 12 — 20 (provision for establishing special educational facilities).) In 1961, the definition was changed to include children “who because of social or emotional problems are unable to make constructive use of their school experience and require the provisions of special services designed to promote their educational growth and development.” (Ill. Rev. Stat. 1961, ch. 122, par. 14 — 1 (provision for establishing special education facilities).) Since 1979, the School Code contains no definition of “maladjusted children,” and replaces seven categories of handicapped children with one general definition of children requiring “special education services.” (Ill. Rev. Stat. 1979, ch. 122, par. 14 — 1.02.) This definition remains substantially the same. Ill. Rev. Stat. 1987, ch. 122, par. 14 — 1.02.

Section 18 — 3, however, has nothing to do with special education. It defines children, including “maladjusted,” “orphan,” “dependent” and “abandoned” children, who are in need of a regular education, not special education. In fact, there is a specific funding statute covering special education services for children living in homes. (Ill. Rev. Stat. 1987, ch. 122, par. 14 — 7.03.) Under defendants’ reasoning, section 18 — 3 would be rendered superfluous. Defendants argue then, that section 18 — 3 should be treated as a “legislative oversight” and that it is “redundant and unnecessary” to have a funding provision for students in homes for maladjusted children when the handicapped and special education provisions cover such children. Defendants wish us to construe section 18 — 3 as though it did not exist. This is contrary to statutory construction rules requiring us to interpret a statute so that effect is given to its provisions, and no part will be superfluous or inoperative. (Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 323 N.E.2d 73.) Thus, we see little reason to use the prior definitions of “maladjusted” under the special education provisions of the School Code.

Moreover, both the 1947 definition (“truant, incorrigible, delinquent”), and the. 1961 definition (“social or emotional problems [and] unable to make constructive use of their school experience”) certainly include children addicted to alcohol and drugs undergoing rehabilitation at Parkside.

Defendants’ reliance on School District No. 153, Cook County v. School District No. 1541/2, Cook County (1977), 54 Ill. App. 3d 587, 370 N.E.2d 22, is misplaced. In that case, the court had to decide which of two school districts should pay for a child’s education — the district where the State residential facility of the handicapped child was located, or the school district where the child’s mother lived. This court held that the school district where the child’s mother resided must either enroll the child in its own special education program or reimburse the other school district for the cost of providing special education. Section 18 — 3 was not discussed in that case. Thus, that case supports the proposition that children leaving their districts to receive residential treatment are entitled to a State-funded education. The question of whether the minor plaintiffs’ tuition should be paid by the parents’ school district is not at issue in the present case.

The local school district additionally argues that it should not have to reimburse plaintiffs for the tuition because it is not responsible for setting statewide education policy and it has no duty to plaintiffs. This argument is without merit. Parkside has paid approximately $67,731 to the local school district. Having received those funds, the school district would be unjustly enriched if it were not required to make restitution, notwithstanding the fact that the school district may have acted pursuant to policies enacted by the State Board. (See People v. Meyerowitz (1975), 61 Ill. 2d 200, 335 N.E.2d 1 (county liable for restitution of fines illegally collected).) We note that the local school district has not filed a third-party action against the State Board.

The local school district’s reliance on Pierce v. Board of Education (1977), 69 Ill. 2d 89, 370 N.E.2d 535, is misplaced. In Pierce, plaintiff did not seek the return of money unlawfully obtained by defendant.

The local school district also contends that the trial court abused its discretion by denying its motion for leave to file an answer. Whether a party may file a late answer rests within the sole discretion of the trial court. (Greenlee Brothers & Co. v. Rockford Chair & Furniture Co. (1969), 107 Ill. App. 2d 326, 246 N.E.2d 64.) The school district did not seek to file an answer until after the evidentiary hearing was held, after the court had decided the case on the merits, and after the court had issued its order. We find no abuse of discretion here.

In their cross-appeal, plaintiffs contend that they are entitled to relief, including attorney fees, under section 504 of Title V of the Rehabilitation Act of 1973 (29 U.S.C. §794 (1982)). Plaintiffs have not established that they are being denied a free education “solely on the basis of their handicap.” (See Parks v. Pavkovic (7th Cir. 1985), 753 E2d 1397.) The only reason plaintiffs are not obtaining a free education is because they are attending a school outside their home districts. The residency requirement has nothing to do with a “disability” or “handicap.” The trial court properly found their section 504 claim to be without merit.

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

Judgment affirmed.

EGAN, P.J., and LaPORTA, J., concur.


author: JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD BANKS, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—0041
    Opinion filed September 29, 1989.

      Michael J. Pelletier and Martin Carlson, both of State Appellate Defender’s Office, and Chadwell & Kayser, Ltd., both of Chicago (Craig T. Maxwell, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Carol Gaines, and Janet C. Mahoney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Following a jury trial, defendant Ronald Banks was convicted of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2(a)) and sentenced to a term of natural life imprisonment. On appeal, defendant argues that he should receive a new trial because (1) the trial court should have allowed his motion to quash his warrantless arrest and to suppress evidence seized during and following that arrest; and (2) he was denied effective representation of counsel at trial. We affirm.

Defendant was tried by a jury for the armed robbery of a currency exchange that occurred at approximately 6 p.m. on October 1, 1985. Dorothy Harrison (Harrison), an employee at the currency exchange, testified that at that time she had closed the business for the day and was preparing to leave the building. As she exited the building, a man grabbed her from behind, put a hand over her mouth, and held a large butcher knife up to her face. Harrison testified that the man forced her back into the currency exchange and told her that he had a stick of dynamite. The assailant ordered her to open the safe and put money into a plastic bag that he handed to her. Harrison complied, placing money, food stamps, city stickers, and six money orders for $250 each, which he directed her to make, into the bag. The man then demanded her car keys, which she gave to him, and also took her wallet. The offender then directed Harrison to stay in a certain area of the currency exchange and fled in her car.

Harrison summoned the police, who arrived shortly thereafter. She told them that the assailant was a black male with a medium complexion, 30 to 35 years old, 6 feet tall, 180 pounds, and that he had black nappy hair and a mustache. Harrison also told police that the offender was wearing a blue jean jacket and dark pants. She said that the man had taken over $5,000 in cash, $8,000 in food stamps, the money orders, and a number of city stickers, CTA tokens and coins, as well as Harrison’s car, wallet, and keys. At trial, Harrison identified defendant as the offender.

At approximately 10:30 p.m. the day after the incident, the police received an anonymous tip that a man was selling food stamps from a room in a hotel located approximately three miles from the currency exchange that had been robbed the previous evening. The caller’s description of the man matched that which Harrison had given, except that the anonymous caller’s description did not include a mustache. As relayed to investigating officers, the caller said that he believed the man was the person who had robbed the currency exchange the day before, that the man “was currently at the hotel, but he was leaving his room right now, and he would be leaving the hotel shortly.” Based on this information, Chicago police officers proceeded to the hotel and set up surveillance of the front and rear of the hotel. After a short period of time, the police officers waiting in front of the hotel saw a man who fit Harrison’s description go into a hotel room. After verifying with the hotel manager that the man was renting this room, the officers went to the door of the hotel room and knocked on the door, announcing that they were police officers. The man answered that he would come to the door in a minute. The officers waited a few minutes, knocked again, and the man opened the door. The officers could see into the room through the open doorway, and observed several large stacks of food stamps on a nightstand in the room. The man attempted to close the door, but the officers held the door open and the man ran into a bathroom in the hotel room. The officers then entered the room and placed the man under arrest. The person so arrested was defendant. The officers recovered the food stamps that were in plain view in the room. They also seized a blue nylon bag that was open on a bed in the hotel room, searched the bag, and found additional evidence therein, including Harrison’s wallet. Later they recovered Harrison’s car keys from defendant, as well as Harrison’s car, which was parked in a location to which defendant had directed the officers.

Defendant was then taken to a police station for processing. During post-arrest interrogation conducted by officers following defendant’s waiver of his Miranda rights, defendant admitted to the robbery of the currency exchange. In this statement, defendant told the officers that after he had taken all the proceeds from the safe, and taken Harrison’s keys and wallet from her possession, defendant “showed” Harrison a knife. Defendant’s statement made no reference to threatening to use dynamite at any time during the robbery. While at the police station, defendant was placed in a lineup, where he was positively identified by Harrison.

A fingerprint recovered from the inside surface of a door that led to the employee work area of the currency exchange was found to match defendant’s fingerprints. No knife was ever recovered from the currency exchange, from defendant’s hotel room, or from Harrison’s car.

Defendant’s defense at trial was that the State’s evidence was insufficient to prove him guilty beyond a reasonable doubt of armed robbery, on the premise that the State’s evidence did not establish that he had used a knife during the course of the robbery. In his defense, defendant called a Chicago police officer who spoke to Harrison shortly after the incident. The officer testified that according to the narrative portion of the officer’s report, Harrison did not mention to the officer that her assailant had used a knife. In rebuttal, the State called another police officer who had also talked with Harrison shortly after the incident; this officer testified that Harrison did state that the offender had used a knife to gain entry to the currency exchange and force her to turn over the items taken during the course of the incident.

Based upon this evidence, the jury found the defendant guilty of armed robbery. The trial court sentenced the defendant to a term of natural life imprisonment, and he now appeals.

Opinion

Defendant argues first that the trial court should have allowed his motion to quash arrest and suppress evidence seized during that arrest. Defendant asserts that there were no exigent circumstances to justify the police officers’ failure to obtain a warrant for his arrest. We disagree. In People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677, the Illinois Supreme Court set forth the following guidelines with respect to exigent circumstances that obviate the necessity of an arrest warrant:

“[Exigent] circumstances must ‘militate[ ] against delay and justiffy] the officers’ decision to proceed without a warrant.’ [Citation.] In addition, the police officers must act in a ‘reasonable fashion.’ [Citation.] The guiding principle is reasonableness, and each case must be decided on the basis of the facts presented [citation] and known to the officers at the time they acted. [Citation.] While no list of factors bearing on exigency can be considered exhaustive, we have in the past taken into account: (1) whether the offense under investigation has been recently committed [citation]; (2) whether there was any deliberate or unjustified delay by the officers during which time a warrant could have been obtained [citation]; (3) whether a grave offense is involved, particularly a crime of violence [citation]; (4) whether the suspect is reasonably believed to be armed [citations]; (5) whether the police officers were acting upon a clear showing of probable cause [citations]; (6) whether there is a likelihood that the suspect will escape if not swiftly apprehended [citation]; (7) whether there is strong reason to believe that the suspect is in the premises [citation]; and (8) whether the police entry, though nonconsensual, is made peaceably [citation]. All of these factors are guidelines, not cardinal maxims to be applied rigidly in each case. [Citation.]” 117 Ill. 2d at 216-17.

Applying these factors to the case at bar, we find no abuse of discretion in the trial court’s determination that exigent circumstances excused the officers’ failure to obtain an arrest warrant prior to their apprehension of the defendant in his hotel room. The record shows that the armed robbery of the currency exchange had been committed only a day earlier and that the offender had used a butcher knife to perpetrate the crime. The officers proceeded to the hotel immediately upon their receipt of the anonymous tip, saw the defendant enter the hotel shortly thereafter, and ascertained upon their sighting of him that he fit the description given by the victim and the tipster. The officers then went to the hotel room, knocked on the door and announced their office, and waited for defendant to open the door. When the defendant did so, the officers saw a large quantity of food stamps in the room. They then entered the room before the door was shut as the defendant began to run from the doorway. The tipster had informed the police that the defendant “would be leaving the hotel shortly,” and the defendant’s flight from the doorway and the officers served only to confirm the possibility of defendant’s attempt to flee. Given these circumstances, we find no abuse of discretion in the trial court’s determination that the officers were faced with exigent circumstances that justified their decision to arrest the defendant immediately, rather than await the issuance of a formal arrest warrant.

Defendant argues that the trial court erred in its denial of defendant’s motion to quash, because the trial court based this denial solely upon a finding that the police had probable cause to arrest the defendant. The record shows that the trial court did not base its ruling exclusively or predominantly upon a finding of probable cause, however. Rather, the record shows that the defendant argued that his motion to quash should be allowed because there was no probable cause to arrest him, and that even if there was probable cause, there were no exigent circumstances to justify the absence of an arrest warrant. In its oral pronouncements denying the defendant’s motion to quash, the trial court determined that there was probable cause to arrest the defendant, and that there were also exigent circumstances to justify the officers’ failure to obtain an arrest warrant. In finding exigent circumstances, the trial court made a thorough review of the evidence and the applicable legal principles with respect to the question. Defendant’s argument that the trial court based its denial of defendant’s motion to quash on an improper reliance upon probable cause finds no support in the record before us.

Defendant further contends that because the police made a “conscious, deliberate decision” to arrest the defendant when they received the anonymous tip and proceeded to the hotel, there could be no exigent circumstances justifying their failure to first obtain a warrant for the defendant’s arrest, citing 2 W. LaFave, Search & Seizure section 5.1(a), at 391 (1987), People v. Wilson (1980), 86 Ill. App. 3d 637, 408 N.E.2d 988, United States v. Morgan (6th Cir. 1984), 743 F.2d 1158, People v. Hogan (Colo. 1982), 649 P.2d 326, and United States v. Morse (1984), 125 N.H. 403, 480 A.2d 183. We are not persuaded by defendant’s claim, however, since in none of the cases cited were the police acting under the reasonable belief that the defendant would soon flee the premises where he could be located. Under the facts of this case, we conclude that the officers were faced with exigent circumstances that justified their decision to arrest the defendant without a warrant.

Defendant also maintains that the police acted unlawfully when they seized and searched defendant’s nylon bag, found on a bed in the hotel room, without first obtaining a search warrant. Defendant never argued this point to the trial court, however, and the issue is waived upon review. (See People v. Turner (1989), 128 Ill. 2d 540, 555, 539 N.E.2d 1196.) In view of the overwhelming evidence of the defendant’s guilt, we would not consider this alleged deficiency to amount to plain error.

Defendant’s second point of asserted error pertains to the competency of the legal representation he received at trial. Specifically, defendant challenges his attorney’s decision to concede that defendant committed a robbery and to argue that defendant did not commit an armed robbery. Defendant’s trial attorney adopted the position throughout the course of the trial that the State’s evidence would fail to prove beyond a reasonable doubt that the defendant used a weapon to commit the robbery. Defendant contends that this representation was so deficient that it amounted to the absence of any meaningful legal representation. On this basis, defendant asserts that he is entitled to a new trial.

To support this argument, defendant relies upon People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513. In Hattery, the court determined that defendant was denied effective assistance of counsel because his trial attorney told the jury during opening statement that the defendant committed the murder for which he was charged and that “the only question facing you, will be whether to impose the death penalty.” (109 Ill. 2d at 458-59.) Defendant’s counsel also presented no evidence on defendant’s behalf, engaged in no cross-examination of State witnesses to cast doubt on the defendant’s guilt, and made no closing argument to the jury. Relying on United States v. Cronic (1984), 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039, the court held that the defense attorney’s representation of the defendant provided no meaningful adversarial testing to the State’s case, and therefore, denied defendant effective assistance of counsel under Cronic.

Recently, in People v. Chandler (1989), 129 Ill. 2d 233, the Illinois Supreme Court distinguished Hattery. In Chandler, the defendant was accused of murder, arson and residential burglary upon a theory of accountability. The defendant had admitted his involvement in the incident to police during post-arrest interrogation, and defense counsel’s statements to the jury attempted to reconcile the State’s evidence with these admissions. In so doing, defense counsel conceded that defendant had participated in the incident, but argued that defendant was not guilty of murder because he had not inflicted the wounds that caused the victim’s death. The Illinois Supreme Court concluded that defense counsel’s legal representation did not fall within the Hattery standard, reasoning as follows:

“Counsel admitted only what defendant had already confessed to, and the jury heard a police officer testify to defendant’s statements. Counsel vigorously argued that the jury should believe everything that defendant told the police, including defendant’s denial of killing the victim, and did not concede any fact to which defendant did not admit in his statements to the police. We have held that similar admissions by counsel do not fall under the Hattery rule. See People v. Emerson (1987), 122 Ill. 2d 411, 428-31.” Chandler, 129 Ill. 2d at 245-46.

• 6 In our view, the legal representation provided to defendant in the case at bar was substantially similar to that found adequate in the Illinois Supreme Court’s decision in Chandler and is in accord with Hattery. Defendant’s trial counsel in the instant cause agreed only to those matters to which defendant had already confessed, and the jury heard the police testimony regarding defendant’s statement. Defendant’s trial counsel also advocated to the jury that it should believe everything that defendant told the police, including defendant’s denial that he used a weapon to commit the robbery, and counsel did not concede any fact to which defendant did not admit in his statement to the police. Furthermore, defense counsel cross-examined State witnesses to develop this defense strategy and presented the testimony of a police officer whose narrative portion of her police report indicated that Harrison had said nothing about her assailant’s use of a knife to commit the robbery. In view of the substantial similarities between the instant cause and Chandler, we conclude that defendant was not denied effective assistance of counsel within the holding of Hattery.

We also note that defendant consented at trial to the strategy of which he now complains upon review. The record shows that following opening statement, but before the taking of any testimony, the trial court judge said to the defendant, “Mr. Banks, as you know, in his opening remark [your attorney] has, in effect, conceded that you were there and participated in an armed robbery [sic] but your defense is that it wasn’t an armed robbery. Is that the type of defense that you want in this case? Is that what you understand is the strategy your counsel are employing?” The defendant answered, “Yes.” In Hattery, the Illinois Supreme Court recognized that if a defendant knowingly and intelligently consents to his counsel’s trial strategy conceding a portion of the State’s case, the defense attorney’s representation will not be found inadequate. (Hattery, 109 Ill. 2d at 464-65.) The record in the instant cause demonstrates that defendant consented to the trial strategy adopted by his defense counsel. We find no merit to defendant’s appellate argument that this consent could not have been knowing and voluntary on the theory that the trial judge asked defendant a compound question and inadvertently misstated that defense counsel’s trial strategy was to “concede[ ] that [defendant] w[as] there and participated in an armed robbery,” rather than to concede that defendant participated in a robbery but not an armed robbery.

Although not argued by defendant upon review, we also consider whether defendant’s trial attorney’s representation amounted to ineffective assistance of counsel under Strickland, v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, adopted by the Illinois Supreme Court in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246. “Strickland requires a defendant to prove (1) that his counsel’s performance was deficient by having made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the sixth amendment, and (2) that his counsel’s deficiencies prejudiced the defendant. [Citations.] To prove this, a defendant must show that his counsel’s errors were so serious that they deprived the defendant of a fair trial, a trial whose result is reliable. [Citation.]” Chandler, 129 Ill. 2d at 242.

In Chandler, the Illinois Supreme Court found the defense attorney’s representation deficient under Strickland, reasoning:

“Defendant was charged with four counts of murder, including felony murder [citation]. Counsel’s apparent strategy was to convince the jury, in closing argument, to believe defendant’s denial, in his statements to the police, of killing the victim. This strategy was the basis of counsel’s deficiency. Counsel did not attempt to develop a theory of innocence during his cross-examination of several witnesses, and did not cross-examine several key witnesses at all. Moreover, counsel presented no witnesses on behalf of the defense and failed to call defendant to the stand even though he had stated in his opening argument that defendant would testify and tell the jury what he did and did not do. Defense counsel apparently mistakenly believed that the jury could find defendant not guilty of murder if they believed that he had not inflicted the fatal wounds to the victim. *** The jury, however, having been instructed on both felony murder and accountability, had no choice but to find defendant guilty of murder, residential burglary and arson.
The jury could have returned a not-guilty verdict on the charged offenses only if it had chosen to disregard the jury instructions. Counsel had admitted that defendant was telling the truth in his statements to the police, and that he had broken into the victim’s house. The ultimate error of counsel’s strategy, however, is revealed by the fact that even if counsel had succeeded in persuading the jury that defendant did not stab the victim, the jury was still instructed to find defendant guilty of murder under the law of accountability or felony murder.” Chandler, 129 Ill. 2d at 246-47.

Chandler is distinguishable from the case at bar, however. In the instant cause, defense counsel argued to the jury that the State’s evidence was insufficient to prove beyond a reasonable doubt that defendant used a weapon to commit the robbery. If the jury had been persuaded by defense counsel’s argument and properly applied the instructions given by the trial judge, the jury would not have been obligated to find the defendant guilty of armed robbery. Furthermore, defense counsel here did cross-examine State witnesses to develop his trial strategy that the evidence did not prove beyond a reasonable doubt that defendant used a weapon to commit the robbery. Defense counsel also presented evidence on defendant’s behalf to support this trial strategy. In view of these circumstances, we conclude that defendant was not denied effective assistance of counsel under Strickland.

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

Pursuant to the State’s request and in accord with People v. Nicholls (1978), 71 Ill. 2d 166, and People v. Agnew (1985), 105 Ill. 2d 275, we hereby assess defendant $75 as costs for this appeal and incorporate it as part of our judgment.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


text:
    JAMES WINTERS, Plaintiff-Appellant, v. ANDREW M. GREELEY, Defendant-Appellee.
    First District (4th Division)
    No. 1—87—3513
    Opinion filed September 29, 1989.

      William D. Maddux and Ellen L. Spahr, both of William D. Maddux & Associates, of Chicago, for appellant.
    Richard J. Phelan, Maryann Hayes, and Amy R. Kaufman, all of Phelan, Pope & John, Ltd., of Chicago, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

This is an interlocutory appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308) from an order of the circuit court of Cook County striking plaintiff’s claim for punitive damages in a libel action and certifying the following question of law for our review:

“[Whether] [w]here the Court has found as a matter of law that the plaintiff is a limited purpose public figure, the plaintiff is not entitled to punitive damages.”

On July 21, 1982, plaintiff, the managing editor of a university magazine, instituted this libel action against defendant, an author and syndicated columnist. In his two-count amended complaint, plaintiff alleged that defendant made statements in a press release and during the taping of a television interview which falsely accused him of lying, of having committed various criminal offenses and of lacking the integrity required of a writer, reporter and editor actively in pursuit of a career in journalism. Plaintiff further alleged that defendant was aware that the statements were false when made, and that he intended them to be published without regard to their truth or falsity. According to plaintiff, defendant’s statements caused him damage to his reputation and standing in the community and to his reputation and integrity as a managing editor and aspiring journalist, personal humiliation, mental anguish, and hindered him in the pursuit of his chosen profession. Count I of the complaint alleged libel per se; count II alleged negligence in the making of the statements. Each count sought $1 million in compensatory damages and $2 million in punitive damages.

The trial court found plaintiff to be a public figure for a limited purpose and denied defendant’s motion for summary judgment. The court granted defendant’s motion to strike plaintiff’s claim for punitive damages on the basis of the decision in Costello v. Capital City Communications, Inc. (1987), 153 Ill. App. 3d 956, 505 N.E.2d 701, wherein the Fifth District Appellate Court held that where actual malice is the gist of an action for libel, an award of both compensatory and punitive damages constitutes an impermissible double recovery. (153 Ill. App. 3d at 974.) On November 6, 1987, the trial court entered an order striking plaintiff’s punitive damage claim and certified the question of law quoted above.

Opinion

The certified question presents the issue of whether a public figure plaintiff is precluded, as a matter of law, from recovery of punitive damages in a libel action because the threshold of liability, i.e., “actual malice,” which must be proved to support a punitive damage award is the same as the threshold of liability which is necessary for recovery of compensatory damages.

The current state of the law of defamation evolved from the landmark case of New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710. In that case, the United States Supreme Court held that protection of first and fourteenth amendment rights (U.S. Const., amends. I, XIV) precludes a public official from recovering damages for publication of a defamatory statement, except where it is proved by clear and convincing evidence that the defamatory statement was made with “actual malice.” The showing of “actual malice” required to permit recovery was defined by the New York Times court as “knowledge [of the statement’s falsity] or with reckless disregard of whether it was false or not.” (New York Times, 376 U.S. at 279-80, 11 L. Ed. 2d at 706, 84 S. Ct. at 726.) The New York Times rule was extended to libel actions brought by persons who may not have been public officials but who were, in some sense, “public figures.” (Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975.) The Curtis Court further held that where a public figure proves that the defamatory matter was published with knowledge of or reckless disregard for its falsity, punitive damages are not precluded by the first and fourteenth amendments. See also Fopay v. Noveroske (1975), 31 Ill. App. 3d 182, 334 N.E.2d 79.

In the case at bar, the trial court ruled that plaintiff is a limited purpose public figure. Thus, the stringent requirements of New York Times are applicable, and, in order to recover any damages, plaintiff must establish that the defendant acted with “actual malice” by proving that the allegedly defamatory statements were made with knowledge of their falsity or reckless disregard for their truth or falsity.

In the law of defamation, “actual malice” has a .unique legal meaning which differs significantly from the common law meaning of malice applied in other tort actions. The United States Supreme Court in Cantrell v. Forest City Publishing Co. (1974), 419 U.S. 245, 42 L. Ed. 2d 419, 95 S. Ct. 465, an invasion of privacy/false light action, stated:

“ ‘[A]ctual malice’ [as defined in New York Times] is a term of art created to provide a convenient shorthand expression for the standard of liability that must be established before a State may constitutionally permit public officials to recover for libel in actions brought against publishers. As such, it is quite different from the common-law standard of *** ‘malice’ generally required under state tort law to support an award of punitive damages. In a false-light case, common-law malice — frequently expressed in terms of either personal ill will toward the plaintiff or reckless or wanton disregard of the plaintiff’s rights— would focus on the defendant’s attitude toward the plaintiff’s privacy, not toward the truth or falsity of the material published.” 419 U.S. at 251-53, 42 L. Ed. 2d at 426-27, 95 S. Ct. at 470.

Where a public figure plaintiff establishes by clear and convincing evidence that the defendant acted with knowledge or reckless disregard of the falsity of the defamatory statement, it is unnecessary to additionally prove the existence of personal animosity, evil motive or intent to injure the plaintiff to recover damages for the defamation. The. reverse, however, is not true. Proof that the defendant made the statement with rancor toward or intent to injure the plaintiff, without clear and convincing evidence of the defendant’s knowledge or reckless disregard of the statement’s falsity, is constitutionally insufficient to impose any liability upon the defendant. Rosenblatt v. Baer (1966), 383 U.S. 75, 15 L. Ed. 2d 597, 86 S. Ct. 669; see Fopay v. Noveroske (1975), 31 Ill. App. 3d 182, 334 N.E.2d 79.

We neither ascribe to the reasoning that New York Times “actual malice” is simply a more strict or higher version of the common law malice standard, nor do we ascribe to the theory that common law malice is encompassed within the New York Times standard. In our view, any such equation of the two concepts is, using a common metaphor, like comparing apples and oranges. Rather, in defamation cases, common law malice, denoting ill will or evil motive, and New York Times “actual malice,” denoting “knowledge of or reckless disregard for the falsity of a defamatory statement” are distinct and incomparable standards requiring different proofs (e.g., Erickson v. Aetna Life & Casualty Co. (1984), 127 Ill. App. 3d 753, 469 N.E.2d 679; Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 415 N.E.2d 434; Durso v. Lyle Stuart, Inc. (1975), 33 Ill. App. 3d 300, 337 N.E.2d 443; Carson v. Allied News Co. (7th Cir. 1966), 529 F.2d 206; see generally Note, Reports Upon Public Proceedings & Documents: Absolutely Protected by Constitutional Privilege, 1985 U. Ill. L. Rev. 1059, 1075-80).

As noted earlier, the trial court in the instant case struck plaintiff’s claim for punitive damages on the basis of the Fifth District Appellate Court holding in Costello v. Capital Cities Communications, Inc. (1987), 153 Ill. App. 3d 956, 505 N.E.2d 701. Costello was an action tried under the New York Times “actual malice” standard of liability. The plaintiff filed suit against the owner of a local, general circulation newspaper and an editor of the newspaper following the publication of an editorial which, he alleged, constituted libel per se. The jury awarded plaintiff both compensatory and punitive damages. The appellate court, with one justice dissenting, affirmed the judgment for plaintiff, but reduced the award of compensatory damages as being excessive and reversed the judgment awarding punitive damages in its entirety.

Relying on the supreme court cases of Dethloff v. Zeigler Coal Co. (1980), 82 Ill. 2d 393, 412 N.E.2d 526, Hammond v. North American Asbestos Co. (1983), 97 Ill. 2d 195, 454 N.E.2d 210, and Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 489 N.E.2d 1374, the Costello court reasoned:

“It is with the teaching of the foregoing cases, and with consideration given to the policy regarding punitive damages, that we hold that where actual malice is the gist of an action for libel, as here, both compensatory damages and punitive damages cannot be recovered. In essence and in fact, the nature of the conduct that will justify a recovery of compensatory damages is the same as the conduct that must be shown in order to recover punitive damages. Accordingly, to allow both would constitute a double recovery.” Costello, 153 Ill. App. 3d at 976.

Plaintiff in the instant case urges that Costello v. Capital Cities Communications, Inc. (1987), 153 Ill. App. 3d 956, 505 N.E.2d 701, relied on by the trial court, lacks any basis in authority and should not be followed. Plaintiff argues that Costello ignored numerous longstanding decisions holding that where “actual malice” is proven in an action for libel, punitive damages may be awarded.

Adopting the reasoning of the Costello majority, defendant posits that the basis of lability for an award of punitive damages cannot be the same as that vhich is required to recover compensatory damages, and that because recovery of compensatory damages in a libel action involving a public figure requires proof of actual malice, the same standard of proof and evidence cannot be used to also sustain an award of punitive damages.

Subsequent to oral arguments in the instant case, Costello was reversed by the Illinois Supreme Court in Costello v. Capital Cities Communications, Inc. (1988), 125 Ill. 2d 402, 532 N.E.2d 790, on other grounds. The issue of the propriety of the appellate court’s vacatur of the punitive damages award was not raised by the parties or addressed by the supreme court. For the reasons stated herein, we do not agree with the appellate court’s pronouncement in Costello on the issue of punitive damages, and consequently, we decline to follow Costello in ruling on the question presented in this appeal.

In Smith v. Wade (1983), 461 U.S. 30, 75 L. Ed. 2d 632, 103 S. Ct. 1625, the United States Supreme Court considered and rejected an argument nearly identical to the position taken in Costello and by defendant, i.e., that an award of punitive damages cannot be based on the same conduct necessary to establish liability in the first instance. Although Smith was not a defamation action, we find the Court’s reasoning to be instructive in our consideration of the position taken in Costello and by defendant.

The Supreme Court in Smith noted that irrespective of how egregious a defendant’s conduct may be, punitive damages are never to be awarded as a matter of right, but are allowed only upon a finding that defendant’s conduct met the recklessness threshold required in the Smith complaint and also merited a punitive damage judgment. In contrast, the Court observed that if liability is found, compensatory damages in an amount appropriate to compensate for plaintiff’s loss, as determined by the evidence, are mandatory. The Court concluded that compensatory and punitive damages are not awarded on the same standard, noting that to make its punitive damage award, the jury is required to find not only that the defendant’s conduct met the recklessness threshold, which is a question of fact, but also that his conduct merited a punitive award which is a “discretionary moral judgment.” 461 U.S. at 52, 75 L. Ed. 2d at 649, 103 S. Ct. at 1638.

Following its discussion of this distinction, the Smith Court continued:

“Moreover, *** [tjhere has never been any general common-law rule that the threshold for punitive damages must always be higher than that for compensatory liability. On the contrary *** in situations where the standard for compensatory damages is as high or higher than the usual threshold for punitive damages, most courts will permit awards of punitive damages without requiring any extra showing. Several courts have so held expressly. Many other courts *** have held that punitive damages are available on the same showing of fault as is required by the underlying tort in, for example *** defamation of a public official or public figure ***. *** See, e.g., *** Fopay v. Noveroske (1975), 31 Ill. App. 3d 182, 334 N.E.2d 79.” 461 U.S. at 53-54 & n.19, 75 L. Ed. 2d at 649-50 & n.19, 103 S. Ct. at 1638-39 & n.19.

Similarly, in Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975, the Supreme Court stated,

“Where a publisher’s departure from standards of press responsibility is severe enough to strip from him the constitutional protection our decision acknowledges, we think it entirely proper for the State to act not only for the protection of the individual injured but to safeguard all those similarly situated against like abuse. Moreover, punitive damages require a finding of ‘ill will’ under general libel law and it is not unjust that a publisher be forced to pay for the ‘venting of his spleen’ in a manner .which does not meet even the minimum standards required for constitutional protection. Especially in those cases where circumstances outside the publication itself reduce its impact sufficiently to make a compensatory imposition an inordinately light burden, punitive damages serve a wholly legitimate purpose in the protection of individual reputation. We would hold, therefore, that misconduct sufficient to justify the award of compensatory damages also justifies the imposition of a punitive award, subject of course to the limitation that such award is not demonstrated to be founded on the mere prejudice of the jury.” 388 U.S. at 61, 18 L. Ed. 2d at 1114, 87 S. Ct. at 1994.

Defendant contends that States have the authority to impose additional tests for the recovery of punitive damages under the first amendment. Relying primarily on the Illinois Supreme Court decisions discussed in Costello, defendant argues that in Illinois punitive damages are not recoverable where, as in public figure defamation cases, a special remedy exists to adequately compensate the plaintiff or where the other types of damages available are themselves punitive in nature.

Defendant in his brief argues that compensatory damages in defamation actions are not limited to “special” damages based on quantifiable economic loss, but also include “presumed” damages which provide recovery for mental suffering, personal humiliation, and impairment of personal and professional reputation and standing in the community without evidence assigning a monetary value to the injury. Defendant reasons that “presumed damages therefore consist of the same unquantifiable elements resulting from damaged reputation as do punitive damages *** [and] clearly are not compensatory in the traditional sense of compensating a victim for demonstrated economic loss or quantifiable injury” but, rather, are punitive in nature. Defendant further argues that presumed damages are also a special remedy designed to fully compensate defamation victims. Defendant concludes that presumed damages are punitive in nature and are tantamount to a special remedy, and therefore, an additional award of punitive damages would result in an impermissible windfall to plaintiff of what would be punitive damages upon punitive damages. We disagree with defendant’s reasoning, and, in our view, the cases he relies upon do not support the proposition he advances.

First, defendant cites to no authority, nor have we encountered any in our research, for the proposition that presumed damages are punitive or anything other than compensatory in nature or in fact. Presumed damages are those which the law presumes must actually, proximately and necessarily result from the publication of the defamatory matter. (Brown v. Farkas (1987), 158 Ill. App. 3d 772, 511 N.E.2d 1143.) The amount awarded is an estimate of the extent of the loss the plaintiff has suffered in the past and would suffer in the future, either from a monetary or enjoyment of life standpoint. Lorillard v. Field Enterprises, Inc. (1965), 65 Ill. App. 2d 65, 213 N.E.2d 1; Brown & Williamson Tobacco Corp. v. Jacobson (7th Cir. 1987), 827 F.2d 1119; Babb v. Minder (7th Cir. 1986), 806 F.2d 749.

That the plaintiff is not required to prove a specific monetary value on the injury or loss resulting from the defamation does not make the damages any less compensatory in nature. The rationale for the presumed damages rule was based on the recognition that it is often extremely difficult, if not impossible, for the average plaintiff in such an action to present evidence which would support an award of compensatory damages based upon the actual harm sustained. Presumed damages are similar to the general damages awarded a personal injury plaintiff for the pain, suffering and disability resulting from an injury. Although pain and suffering and disability are not susceptible to precise pecuniary valuation, their existence is assumed from the fact of the injury, and they are recognized as compensable losses. Similarly, there is no scale by which to measure the monetary value of reputation, good will, loss of esteem and the like. The law nevertheless recognizes the impairment of reputation and standing in the community, the loss of esteem, personal humiliation and anguish as actual injuries which naturally flow from the publication of a defamatory falsehood. Indeed, impairment of one’s reputation is the essential element and basis for an award of compensatory damages. See, e.g., Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997; Restatement (Second) of Torts §§621, 903 through 908 (1977).

Defendant’s argument that punitive damages should not be awarded because presumed damages adequately and fully compensate the defamation victim ignores the fundamental principle that compensation is not the purpose of punitive damages. Punitive damages have two purposes: to punish the tortfeasor and to deter him and others like him from similar future conduct. (Smith v. Wade (1983), 461 U.S. 30, 75 L. Ed. 2d 632, 103 S. Ct. 1625; Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997; Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975; Brown v. Farkas (1987), 158 Ill. App. 3d 772, 511 N.E.2d 1143; Brown & Williamson Tobacco Corp. v. Jacobson (7th Cir. 1987), 827 F.2d 1119.) In awarding compensatory damages, the focus is on the plaintiffs losses, whether special or presumed. In contrast, the focus in a determination of whether punitive damages should be imposed and in what amount is on the character of the defendant’s conduct. (E.g., Smith v. Wade (1983), 461 U.S. 30, 75 L. Ed. 2d 632, 103 S. Ct. 1625.) If the character of the conduct is of the sort that calls for deterrence and punishment over and above that provided by a compensatory award, then it is appropriate to allow a jury to assess punitive damages, subject to the limitation that such an award is not founded on the mere prejudice of the jury. (Curtis v. Butts (1967), 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975.) They are in the nature of a private fíne levied by civil juries to punish reprehensible conduct and deter its future occurrence. (Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997.) As previously stated, punitive damages are never awarded as a matter of right. Thus, no matter how egregious the defendant’s conduct may be, the jury is never obliged to assess punitive damages. Smith v. Wade (1983), 461 U.S. 30, 75 L. Ed. 2d 632, 103 S. Ct. 1625.

Illinois courts have consistently recognized the availability of punitive damages in defamation cases which have applied the New York Times “actual malice” standard of liability. E.g., Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997; Tunnell v. Edwardsville Intelligencer (1969), 43 Ill. 2d 239, 252 N.E.2d 538; Brown v. Farkas (1987), 158 Ill. App. 3d 772, 511 N.E.2d 1143; Erickson v. Aetna Life & Casualty Co. (1985), 127 Ill. App. 3d 753, 469 N.E.2d 679; Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 415 N.E.2d 434; Davis v. Keystone Printing Service, Inc. (1982), 111 Ill. App. 3d 427, 444 N.E.2d 253; Fopay v. Noveroske (1975), 31 Ill. App. 3d 182, 334 N.E.2d 79; Brown & Williamson Tobacco Corp. v. Jacobson (7th Cir. 1987), 827 F.2d 1119; Babb v. Minder (7th Cir. 1986), 806 F.2d 749; Gertz v. Robert Welch, Inc. (7th Cir. 1982), 680 F.2d 527.

Defendant argues that those cases not involving public figures are irrelevant to the question presented in this appeal. We note, however, that Fopay v. Noveroske (1975), 31 Ill. App. 3d 182, 334 N.E.2d 79, and Brown & Williamson Tobacco Corp. v. Jacobson (7th Cir. 1987), 827 F.2d 1119, were cases in which awards of punitive damages to public figures were upheld. Indeed, the Seventh Circuit Court of Appeals in Brown & Williamson expressly declined to follow the decision in Costello, stating that the Costello court had cited no authority for its ruling and that the decision “stands alone among the Illinois cases” (827 F.2d at 1142 n.12). The cases relied upon by Costello and defendant do not support a contrary conclusion. We have carefully reviewed each of these cases, find they are factually and analytically distinguishable from the issue before us, and that extended discussion of them is unnecessary.

We determine that in a defamation action involving a public figure, where the plaintiff has satisfied the standard necessary to constitutionally permit recovery of compensatory damages, i.e., he has proven by clear and convincing evidence that the defendant made or published the defamatory statement with knowledge of its falsity or reckless disregard for whether it was true or false, the allowance of punitive damages in addition to compensatory damages does not, as a matter of law, constitute an impermissible double recovery or violate defendant’s constitutional protections.

Thus, we respond to the question certified for our review in the negative. Restating that question, we hold that punitive damages are not barred, as a matter of law, in a defamation action by a limited purpose public figure who satisfies the New York Times “actual malice” burden of proving that the defamatory statement was made with knowledge of its falsity or with reckless disregard of its falsity provided that any such award of punitive damages is supported by the evidence and not based on the mere prejudice of the jury.

For the reasons stated, the order of the trial court striking plaintiff’s claim for punitive damages is reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

JIGANTI, P.J., and JOHNSON, J., concur.