author: JUSTICE CHAPMAN JUSTICE GOLDENHERSH,

text:
    CLARENCE JACKSON, Plaintiff-Appellee, v. THE VILLAGE OF CASEYVILLE, Defendant-Appellant.
    Fifth District
    No. 5—87—0674
    Opinion filed November 15, 1990.

      GOLDENHERSH, J., concurring in part and dissenting in part.
    G. Edward Moorman, of Williamson, Webster, Groshong, Moorman & Falb, of Alton, for appellant.
    Harry J. Sterling, of Sterling, Stanley & Kelley, P.C., of Fairview Heights, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff, Clarence Jackson, brought this action for negligence against defendant, Village of Caseyville, to recover damages for flooding of his farmland. A jury returned a verdict for plaintiff and assessed damages for crop damage and mortgage interest. The circuit court of St. Clair County entered judgment upon this verdict. On appeal, defendant raises issues regarding the damage award only. This court affirms in part and reverses in part.

In 1974, plaintiff conveyed an easement to defendant for the purposes of maintaining a drainage pump station. Nonetheless, during 1982 and 1983, plaintiff experienced several floods on his crop because of rainfall. On February 4, 1985, plaintiff filed this action alleging that defendant had negligently failed to maintain its drainage system, which included the operation of the drainage pumps located at or near land owned or farmed by plaintiff from 1982 through 1985. Plaintiff’s property was damaged due to flooding. After a jury trial, a judgment was entered in favor of plaintiff and awarded $37,000 for loss of crops and $17,628 for interest expense. Plaintiff was not awarded damages for the loss in the sale of his farm equipment or for the use of equipment and labor. Defendant appeals.

Defendant’s first issue on appeal is whether plaintiff’s evidence of crop damages was properly admitted. Defendant argues that the proper measure of damages to growing crops is the value of the crop as it was when it was destroyed, together with the right of the owner to mature and harvest the crop, citing Zuidema v. Sanitary District of Chicago (1921), 223 Ill. App. 138, 147, and Kankakee & Seneca R.R. Co. v. Horan (1885), 17 Ill. App. 650.

Plaintiff responds that defendant has waived the issue because defendant did not tender any other jury instructions setting forth any of the four rules used in Kankakee. Furthermore, plaintiff was not required to introduce evidence of his expenses in raising and harvesting his crops as a prerequisite to recovering damages for the destruction of his crops.

This court agrees that defendant has waived the issue because defendant failed to object to the calculation of damages at trial and in its post-trial motion. Although in its post-trial motion defendant made a general objection, it is well established that a general objection does not comply with the statutory requirement. (Ill. Rev. Stat. 1985, ch. 110, par. 2—1202(b); 107 Ill. 2d R. 366(b)(2)(iii).) However, this court will review this issue in light of the case law and both of the parties’ positions.

In Kankakee, the court set out the following rules for the measure of damages to crops:

“1st. That for the lands plaintiff was prevented from tilling, he is entitled to recover the rental value.
2d. That for the lands where the crops were not up, the damage should be estimated upon the basis of the rental value, and the costs of seed and labor in breaking up and planting or sowing.
3d. That in cases of destruction where the crops were up or more or less matured, plaintiff should recover as is last above stated, and in addition thereto the cost of any labor bestowed after the planting or sowing; or, at his option, he may recover the value of the crop at the time of its destruction, with the right to the purchaser to mature the crop and harvest or gather it.
4th. That where the crop was injured but not destroyed, the assessment should be commensurate with the depreciation in value.” (Kankakee & Seneca R.R. Co. v. Horan (1885), 17 Ill. App. 650, 651.)

The Kankakee court reversed and remanded the case because the jury was not instructed on what rule should control and was not given evidence on rental value, cost of seed or labor as well as the time of the injury or destruction. The third rule was reiterated in Zuidema v. Sanitary District of Chicago (1921), 223 Ill. App. 138.

Later, the court in Johnson v. Sleaford (1963), 39 Ill. App. 2d 228, 188 N.E.2d 230, established what a plaintiff is entitled to recover “to secure the full benefit to arise from the annual harvest according to the season.” (39 Ill. App. 2d at 237, 188 N.E.2d at 234-35.) In concluding its list of values and deductions, the court stated that the measure of damages “is ascertained by the probable amount of grain the crop would produce, and the probable value of the same in the market at the market season, deducting therefrom the necessary cost of cultivating, harvesting, and taking the same to market.” (39 Ill. App. 2d at 237, 188 N.E.2d at 234-35.) The court, however, realized that the above-mentioned calculation is hypothetical and then concluded with the best way to measure damages, stating:

“[A]n opinion thereon can only be formed by considering the average yield at the place and under like circumstances and the average value of the products in the market at the place and time of market: Chicago and R. I. R. R. Co. v. Ward (1855), 16 Ill. 521.” (39 Ill. App. 2d at 237-38, 188 N.E.2d at 235.)

The final calculation does not include the deduction of expenses as defendant argues. While Kankakee provided a specific calculation for crop damage at the time the crop was damaged, Johnson determined the evidence necessary.

In this case, the crop for each year in question was damaged by several floods occurring throughout each year which eventually affected the final harvested crops. At trial, plaintiff used the eventual crop yields without deducting expenses for labor and costs expended during the season to either plant, save or harvest the crop. This court finds that since plaintiff had already expended money and labor, the only matter left was the eventual amount of money he would have received at the market if the crop had not been injured. Whether plaintiff “saved” money and labor on part of the crop that did not produce is immaterial. Although plaintiff may have had more time to devote to the remainder of his crops, that “savings” is of no solace to plaintiff, who eventually lost the needed income to continue his farm operations of 40 years. This court finds that the evidence of crop summaries was properly admitted.

Defendant also argues that expert testimony should have been offered to prove probable yields. This court finds that plaintiff was qualified as an expert because of his nearly 40 years of farming experience on the lands in question and with the crops grown. Kaiser Agricultural Chemicals v. Rice (1985), 138 Ill. App. 3d 706, 486 N.E.2d 417.

Defendant’s second issue on appeal is whether the mortgage interest was a proper measure of damages as a result of plaintiff’s inability to pay a mortgage loan on his own property.

The jury awarded plaintiff $17,628 for the interest on a loan that the bank eventually foreclosed. Although plaintiff sought $22,955.11, the jury determined that only $17,628 was an expense that would not have been incurred or paid.

On the matter of the interest award, the plaintiff acknowledges that there are no cases directly on point, but relies upon Gent v. Collinsville Volkswagen, Inc. (1983), 116 Ill. App. 3d 496, 451 N.E.2d 1385, and Bank of Lyons v. Schultz (1980), 78 Ill. 2d 235, 399 N.E.2d 1286. The Gent case dealt with a claim based on fraudulent representations of a used car dealer and allowed recovery of interest expense incurred as a direct result of the defendant’s representations. Bank of Lyons v. Schultz was a malicious prosecution case which approved a claim by a widow against the bank for the loss of her home due to the wrongful acts of the defendant in repeatedly enjoining her from using her husband’s life insurance proceeds. While both of these cases could be distinguished on the basis that the underlying theories of recovery were different, i.e., fraud and malicious prosecution as opposed to negligence, such an approach is unnecessary because the plaintiff herein simply did not prove that the interest expense was the proximate result of the defendant’s conduct.

The $17,628 in damages awarded by the jury represented the interest accrued at 13% from July 31, 1984, to August 8, 1986. This interest was due on a mortgage indebtedness incurred in May 1977, several years prior to the events complained of in this case. Had it been necessary for the plaintiff to obtain loans to continue his farming operation because of an unfavorable case flow situation caused by the defendant’s negligence, the interest on these loans might be a recoverable element of damages. The only evidence in this record that remotely supports that contention is a single question and answer:

“Q. You were required to borrow money to keep your operation going in ’82, ’83, ’84?
A. Yes. The fact of the matter is since the Farmers Home Administration had backed the village and given me grant money I thought that — and I incurred these losses, you know —.”

Contrasted with this brief testimony is plaintiff’s exhibit 14, the judgment order on the foreclosure suit that clearly indicates that the interest expense was incurred as a result of the 1977 mortgage note. The fact that the plaintiff was unable to pay the interest because of the defendant’s negligence does not mean that he incurred the interest expense because of its negligence.

In view of the record we hold that the plaintiff failed to meet his burden of proof on the $17,628 interest expense and that the trial court erred in denying the defendant’s post-trial motion as to that figure, and therefore the judgment allowing mortgage interest should be reversed.

Defendant’s last issue on appeal is whether the trial court properly refused defendant’s instruction number 2, which provided:

“Where a municipality provides ample sewers and drains to carry off all water likely to fall or accumulate under ordinary conditions, the fact that the drains prove inadequate to carry off all the water from an extraordinary rainstorm does not subject the municipality to liability for damages caused by the surplus water.”

The court refused the instruction because it was argumentative, it unfairly and inaccurately stated the law, and it did not follow the evidence.

Defendant argues that the evidence revealed that the pumps could only handle normal rain, not extraordinary rains in the area. It is well established that an instruction may be given only if evidence has been introduced at trial which supports the theory of the instruction. (Illinois State Trust Co. v. Walker Manufacturing Co. (1979), 73 Ill. App. 3d 585, 392 N.E.2d 70.) This court finds that defendant’s argument is not supported by the evidence.

The evidence revealed: plaintiff received several rains in 1982 and 1983 which caused several floods in both years. Plaintiff had more flooding in either 1982 or 1983 than he received during 1974 through 1982, although the evidence revealed that the rains which fell during 1982 and 1983 were normal rains. The evidence also revealed that the pumps and the ditches were not properly maintained during 1982 and 1983. If the pumps were maintained, the normal rains of 1982 and 1983 would not have caused the flooding. Thus, the evidence does not support defendant’s argument that 1982 and 1983 had extraordinary rains.

In light of the evidence, defendant’s instruction is argumentative. It assumes that the evidence revealed that defendant’s pumps were adequate to deal with the water from ordinary rainfalls and that the pumps were inadequate for extraordinary rainfalls. The instruction assumes the correctness of defendant’s version of the facts, and as such, was improper. (Pioneer Hi-Bred Corn Co. v. Northern Illi nois Gas Co. (1975), 61 Ill. 2d 6, 14, 329 N.E.2d 228, 231-32.) Thus, this court finds that the trial court properly refused defendant’s instruction.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed in part and reversed in part.

Affirmed in part and reversed in part.

RARICK, J., concurs.

JUSTICE GOLDENHERSH,

concurring in part and dissenting in part:

I respectfully dissent as to the majority’s holding concerning the award of interest in the amount of $17,628. As to the rest of the majority’s opinion, I concur.

The majority opinion obliquely considers the cases cited by plaintiff, Bank of Lyons v. Schultz and Gent v. Collinsville Volkswagen, Inc., but concentrates more pointedly on a supposed failure of proof at trial. In both respects the majority’s analysis is erroneous.

The majority, in considering Gent and Schultz, notes that these cases could be distinguished on the basis that the theories of recovery are different than the underlying theory in the instant case. What they stand for, however, is a basic proposition that when interest expenditure, because of the actions of the party held liable, is, in essence, a useless act and a waste of resources, the party ultimately held liable may also be held responsible for those resources thus wasted. Gent v. Collinsville Volkswagen, Inc. is more in point as an example of that, a situation in which a wronged consumer was permitted to recover as part of compensatory damages the interest paid by that consumer on a loan obtained to finance an automobile which, because of the actions of the seller, he was unable to use.

In the instant case, the majority notes that there was “brief testimony” concerning the interest expenditure and that plaintiff’s exhibit 14, the judgment order on the foreclosure suit, indicates that the interest obligation was incurred as part of a 1977 mortgage note. The sentence following that belies the weakness of the majority’s position: “The fact that the plaintiff was unable to pay the interest because of the defendant’s negligence does not mean that he incurred the interest expense because of its negligence.” (214 Ill. App. 3d at 1063.) This position confuses the assumption of an obligation, the 1977 mortgage note, with the inability of plaintiff to maintain that obligation due, as the jury found, to the negligence of defendant. Further, the jury had before it sufficient evidence to conclude that both the failure to meet the 1977 mortgage note obligations and the sums borrowed in certain years were causally related to defendant’s negligence. Viewing the record in terms of the evidence and properly separating the assumption of an obligation from the actions of an outside party that render a person unable to discharge his obligations, and further considering that these matters were fairly placed in front of a jury that found in favor of plaintiff in an amount that is not against the manifest weight of the evidence, this court’s majority has erred in concluding that the award of interest is not supported by the record in this cause. Plaintiff clearly met his burden of proof on the $17,628 interest expense.

Based on the above, I respectfully dissent from the majority’s reversal of the circuit court in denying defendant’s post-trial motion as to the interest figure and concur with the majority in all other aspects of this opinion.


source: Caselaw Access Project

author: JUSTICE WELCH JUSTICE CHAPMAN,

license: Public Domain

text:
    CARLOS MAPLE et al., Plaintiffs-Appellants, v. MERVIN E. GUSTAFSON, Defendant-Appellee.
    Fifth District
    No. 5—90—0151
    Opinion filed June 4, 1991.
    Rehearing denied July 5, 1991.
    CHAPMAN, J., dissenting.

      Michael R. Bilbrey, of Bono, Goldenberg, Hopkins, Bilbrey & Hendricks, of Granite City, for appellants.
    Martin K. Morrissey and Curtis L. Blood, both of Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge, P.C., of Edwardsville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiffs Carlos Maple and Mary Maple appeal from a judgment against them and in favor of defendant, Mervin E. Gustafson, following a jury trial in the circuit court of Madison County. Plaintiffs had brought suit against defendant for personal injuries incurred when a car driven by plaintiff Carlos and in which plaintiff Mary was a passenger collided with a car driven by defendant. The trial court directed a verdict in favor of plaintiffs on the issue of negligence, leaving the issues of Carlos’ contributory negligence, proximate cause, and damages for the jury. The jury returned a verdict in favor of defendant and against plaintiffs.

Plaintiffs appeal, raising three issues for our review: (1) whether the jury’s verdict was contrary to the manifest weight of the evidence; (2) whether plaintiffs were prejudiced by the testimony of defendant’s expert witness that the hospital at which defendant received a CT scan was predisposed to making diagnoses involving disk trauma; and (3) whether plaintiffs were prejudiced by the admission at trial of surprise evidence of previously undisclosed repairs to defendant’s vehicle. Because we find that the jury’s verdict in favor of defendant was against the manifest weight of the evidence and reverse on that basis, we need not discuss the other issues raised on appeal. They are unlikely to recur on retrial. (See Smith v. Metropolitan Sanitary District of Greater Chicago (1978), 61 Ill. App. 3d 103, 107, 377 N.E.2d 1088, 1091, aff'd (1979), 77 Ill. 2d 313, 396 N.E.2d 524.) This cause is remanded on the issue of the amount of damages only.

Plaintiffs claim injuries as a result of a vehicle collision which occurred on October 8, 1986. Just prior to the collision, plaintiffs’ vehicle was traveling 35 miles per hour. Defendant’s vehicle pulled out in front of plaintiffs’ vehicle and stopped. Carlos tried to stop his vehicle by braking, but collided with defendant’s vehicle. Carlos and Mary were not thrown about the interior of the vehicle. Their vehicle received slight damage to the front bumper and grill. Defendant’s vehicle received damage to the driver’s door, which was repaired with used parts at an approximate cost of $900. Neither defendant nor his grandson who was with him was injured. Defendant’s vehicle did not move as a result of the collision. At the time of the accident, plaintiffs did not think they were injured. After talking to a police officer at the scene, they proceeded to a McDonald’s restaurant for coffee. Approximately one week later, plaintiffs began to experience pain in their necks and backs. One week thereafter, they sought treatment from a chiropractor.

Chiropractor Charles King testified that he first saw plaintiffs on October 21, 1986. Carlos was complaining of neck pain and low back pain which had grown steadily worse following the accident. At the time, Carlos weighed 300 pounds and was suffering from palpable cervical and lumbar muscle spasm. Carlos had decreased cervical and lumbar ranges of motion. Carlos was able to raise his legs only 45 degrees in the straight-leg maneuver, indicating some nerve root or disk pathology. X rays revealed no fractures or dislocations of the spine. King began treatment of Carlos the next day. When Carlos failed to improve, King scheduled him for a CT scan at Wood River Township Hospital. The CT scan report from Wood River Township Hospital revealed a minimal bulging cervical disk, a bulging lumbar disk with minimal herniation, and two other herniated lumbar disks. King sent Carlos for a consultation with an orthopedic surgeon, Dr. Maurice Miller. King continued to treat Carlos, who improved over time. King released Carlos on July 10, 1987. King opined that Carlos’ injuries were related to the car accident.

With respect to Mary, King testified that her X rays revealed degenerative arthritis of the spine. She had suffered neck and low back injuries in a car accident in 1978. She had decreased range of cervical motion, palpable cervical spasm, and multiple trigger points. She had no palpable spasm in her low back, but had limited range of lumbar motion. Mary was treated conservatively to reduce inflammation and muscle spasm. Mary had slight improvement. She was released on June 3, 1987. King opined that the instant car accident aggravated Mary’s preexisting degenerative arthritic condition.

The evidence deposition of Dr. Maurice H. Miller was read to the jury. Miller specializes in orthopedic surgery. He first saw Carlos on April 6, 1987, on referral from King. Carlos had a reduced range of motion in his cervical and lumbar spine. When subjected to a sensation test, Carlos described altered sensate over a cervical distribution and a lumbar distribution which corresponded with the particular disks shown to be bulging or herniated by the CT scans. Miller identified the CT scans taken of Carlos on February 13, 1987, at the Wood River Township Hospital. He testified that the scans were of good diagnostic quality. Miller testified that the scans indicated two bulging disks in the lumbar area, one bordering on herniation. The scans also revealed a bulging disk in the cervical area. Miller prescribed a pain killer for Carlos and recommended conservative treatment. Carlos’ condition improved over time. Dr. Miller released Carlos on July 28, 1987.

Plaintiff Mary Maple testified that she was 63 years of age at the time of trial. She first began to experience pain in her neck and back approximately one week after the accident. She went to see King in response to an advertising flier she received in the mail. She improved under King’s treatment. However, she still suffers from her injuries.

Plaintiff Carlos Maple also testified. He was 22 years old at the time of trial. He first began experiencing pain in his neck and back approximately one week after the accident. He testified to his continuing problems as a result of the accident. Plaintiff rested.

Defendant’s first witness was his expert, Dr. Raymond Frederick. Just prior to his testimony, plaintiffs made an oral motion in limine to bar Frederick from testifying that the radiology department at Wood River Township Hospital and the results of its CT scans are unreliable. This motion was denied.

Dr. Frederick testified that he is a general surgeon. He examined Carlos Maple at defendant’s request on August 31, 1987. As a result of the history he received from Carlos and his examination, Frederick opined that Carlos was not injured in the accident or was only slightly injured. Frederick was certain that some of Carlos’ complaints were not a result of the accident. Carlos’ obesity placed extra strain on his bones, joints, and muscles. Carlos’ entire examination was normal. Frederick found no objective evidence of any injury and did not believe Carlos was physically impaired. The accident definitely was not related to Carlos’ back symptoms, and any neck symptoms were mild and insignificant.

Frederick was asked, “Did you place any significance, I’ll ask it this way, on the fact that Carlos Maple told you about a Wood River Township report with some kind of disks or something?” He responded, “Only that they seemed very fond of making this diagnosis over there.” Plaintiff’s objection was sustained, the response was stricken, and the jury was admonished to disregard the remark. Frederick then stated, “How can I put it? They do make this diagnosis frequently at this particular hospital.” Plaintiff’s objection was again sustained and the jury was instructed to disregard the remark.

With respect to Mary Maple, Frederick testified that any injury she sustained in the automobile accident was minor. Frederick found Mary’s complaints to be functional rather than organic and believed her symptoms were exaggerated. He found no evidence of any disk injury. Mary suffered from advanced degenerative arthritis of her entire spine as a result of the aging process which caused pain and stiffness. The arthritis was not connected to the accident in any way. Frederick found no objective evidence of any soft tissue injury or muscular strain. Mary’s arthritis accounted for her complaints.

On cross-examination, Frederick testified that he is not qualified to read CT scans. X rays do not show the disk area of the spine; CT scans do. Frederick did not review Carlos’ CT scans. On redirect examination, Frederick testified that CT scans are not infallible and the results may vary depending on who reads them.

Defendant testified that the day after the accident he had a minor repair made to the latch on the driver’s door so that it would open and close. Eventually, the entire door had to be replaced, but this repair was not done until later. On cross-examination, plaintiffs asked defendant why he had failed to reveal the repair to the latch in his deposition. Defendant replied that he had not been asked about it and it was a minor adjustment which cost only $30. In closing argument, plaintiffs’ counsel argued that defendant had tried to hide from the plaintiffs and the jury the repair to the door latch in order to minimize the damage to the car and the severity of the collision and therefore the extent of plaintiffs’ injuries. He argued that the photographs of defendant’s car after the accident did not accurately depict the extent of damage, as plaintiffs had testified, because they had been taken after the latch repair. Plaintiffs’ counsel argued that the damage to defendant’s vehicle had been much greater than revealed.

In their post-trial motion, plaintiffs sought a new trial on the issue of damages only. Their motion was denied by the trial court on February 8,1990.

The trial court directed a verdict in favor of plaintiffs on the issue of defendant’s negligence. The jury returned a verdict in favor of defendant and against plaintiffs. It follows, therefore, that the jury determined that, although defendant was negligent in failing to yield the right-of-way to plaintiffs, plaintiffs sustained no injuries as a result of the accident. In other words, the jury found for the defendant on the issue of proximate cause. This finding is contrary to the manifest weight of the evidence.

A verdict is contrary to the manifest weight of the evidence only when, upon review of all the evidence in the light most favorable to the party who prevailed at trial, an opposite conclusion is clearly apparent or the jury’s finding is palpably erroneous and wholly unwarranted, is clearly the result of passion or prejudice, or appears to be arbitrary and unsubstantiated by the evidence. (Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 156, 507 N.E.2d 1213, 1227.) We think that, even viewing all the evidence in the light most favorable to defendant, it is clearly apparent that plaintiffs did sustain injuries and that those injuries were proximately caused by the accident. We therefore reverse the judgment of the circuit court and remand this cause for retrial on the issue of the amount of damages only.

Both plaintiffs, their chiropractor, and Carlos’ orthopedic surgeon testified that plaintiffs were injured. The chiropractor found objective evidence of injury in both plaintiffs in the form of limited range of motion and palpable muscle spasm. Dr. Miller, Carlos’ orthopedic surgeon, also found objective evidence of Carlos’ injuries in the form of palpable muscle spasm, limited range of motion, and CT scans showing bulging disks. Finally, Wood River Township Hospital CT scans revealed bulging and herniated disks in Carlos. Although defendant’s expert found no objective evidence of injury in either plaintiff, it is noteworthy that he did not examine plaintiffs until after they had been released by Drs. King and Miller, more than 10 months after the accident. Therefore, their injuries were to some extent healed and may not have been as objectively evident to Dr. Frederick as they had been to Drs. King and Miller. Furthermore, Dr. Frederick conceded in his testimony that plaintiffs may have been slightly injured.

Both plaintiffs, the chiropractor, and the orthopedic surgeon also testified that plaintiffs’ injuries were related to the car accident. Both Drs. King and Miller testified that an accident such as plaintiffs’ could have caused the injuries of which plaintiffs complained. Plaintiffs’ symptoms did not arise until approximately one week after the car accident and therefore did not preexist it. There is no evidence of any other trauma or injury to Carlos or any occurrence other than the accident which could have aggravated Mary’s preexisting arthritic condition. Again, defendant’s expert conceded in his testimony that plaintiffs’ injuries, if any, could have been caused by the car accident.

In order to find that plaintiffs were not injured, or that their injuries were not proximately caused by the accident, the jury had to disbelieve virtually all of the evidence they heard from the witnesses. It is true that Dr. Frederick testified that he found no objective evidence of injury to either plaintiff and that he did not believe they were injured in the car accident. However, he also conceded that plaintiffs could have been slightly injured in the accident. Frederick also testified that many symptoms of injury would lessen or subside over time, thereby lessening the import of his failure to find any objective evidence of injury. We think on this evidence, a verdict contrary to that returned by the jury is clearly apparent. Accordingly, we reverse the judgment of the circuit court of Madison County and remand this cause for retrial on the issue of the amount of damages only.

For the foregoing reasons, the judgment of the circuit court of Madison County is reversed, and this cause is remanded for further proceedings not inconsistent with this order.

Reversed and remanded.

RARICK, RJ., concurs.

JUSTICE CHAPMAN,

dissenting:

I respectfully dissent.

I cannot agree that the jury’s finding is palpably erroneous and wholly unwarranted by the evidence. The jury could in fact have properly found for the defendant because defendant’s expert witness, Dr. Raymond Frederick, testified that Carlos and Mary Maple were not injured in the accident, and that their injuries, if any, were caused by unrelated circumstances.

The majority states that Dr. Frederick conceded that plaintiffs may have been slightly injured and that their injuries could have been caused by the car accident. No such conclusions were drawn by Dr. Frederick. He in fact found no objective evidence of injury to Carlos Maple. Likewise, no physical impairment was found in his examination of Mr. Maple. When Dr. Frederick was asked whether he has an opinion whether the accident was related to the symptoms Carlos Maple complained of, the doctor stated:

“Certainly not the back symptoms. I think that is fairly definite. His other symptoms are quite mild. I don’t know what to say about neck, feeling fatigue when he is watching television and driving. That is a very low grade, subjective complaint. I guess if he were my patient I would tell him to exercise and lose weight and lead a normal life and that it would go away.”

Dr. Frederick opined that Mary Maple’s complaint several days after the accident of neck and back pain suggested to him that hers was a “relatively minor injury.” Dr. Frederick testified that he suspected that her symptoms were exaggerated. EL found that she had been in a prior automobile accident in 1978 and that she suffered from osteoarthritis, which can cause pain and stiffness. He testified that this condition was in no way connected with the accident at bar. Dr. Frederick concluded that Mary Maple has advanced arthritis and degenerative disease, obesity and general infirmities to entirely account for her present state of health.

In light of the evidence, I believe the jury’s verdict may have been the result of its assessment of Dr. Frederick’s testimony that Carlos and Mary Maple were not injured in the accident and that any injuries complained of were caused by circumstances other than the accident. The question of what evidence to believe and what evidence to reject is a decision for the trier of fact, whose determination should not be upset on review unless manifestly erroneous. (Hall v. Northwestern University Medical Clinics (1987), 152 Ill. App. 3d 716, 725, 504 N.E.2d 781, 787.) I would affirm the judgment of the circuit court.

As for the remaining issues raised by the plaintiffs which the majority did not address, I do not find the alleged errors sufficient to reverse.

Plaintiffs argue that they were prejudiced by the testimony of Dr. Frederick that the hospital at which the plaintiffs received a CT scan was predisposed to making diagnoses involving disc trauma. Plaintiffs filed a pretrial motion in limine requesting that the court preclude Dr. Frederick from testifying concerning the CT scans of Wood River Township Hospital that he reviewed subsequent to his deposition of April 4, 1988. The trial judge denied plaintiffs’ motion. However, during trial the court twice promptly sustained the plaintiffs’ objection to Dr. Frederick’s testimony as to the hospital’s predisposition to making disc-trauma diagnoses, and the jury was instructed to disregard the comments. Under these circumstances, I cannot conclude that any prejudicial error occurred.

The third issue raised by the plaintiffs is whether they are entitled to a new trial because of newly discovered evidence. During pretrial discovery, the plaintiffs inquired of Gustafson as to the type and costs of repairs to his car. At trial Mervin Gustafson testified that he had a $30 adjustment made to the driver’s side door latch. Plaintiffs argue that because this evidence came as a surprise they are entitled to a new trial.

Generally, to justify a new trial on the basis of newly discovered evidence, the evidence must:

“(1) appear to be of such a character that it will probably change the result if a new trial is granted; (2) have been discovered since trial; (3) be such as could not have been discovered before trial by the exercise of due diligence; (4) be material to the issue; and (5) not be merely cummulative [sic] of evidence offered at trial.” Waltz v. Schlattman (1980), 81 Ill. App. 3d 971, 977, 401 N.E.2d 994, 999.

Plaintiffs did not express surprise or request a continuance after Gustafson testified as to the door latch repair. Plaintiffs cross-examined Gustafson as to the door latch repair and argued to the jury that the photograph of defendant’s vehicle did not accurately depict the extent of damage to defendant’s car after the accident because the photograph was taken after the door latch adjustment. The evidence of the door latch adjustment was discovered at trial and was presented to the jury, and counsel was permitted to cross-examine defendant as to the evidence. Plaintiffs have failed to demonstrate how this newly discovered evidence has prejudiced them or that it is of such a character that it would change the result if a new trial were granted.

Based on the foregoing, I would affirm the decision of the trial court.


author: JUSTICE HARRISON

text:
    SULLIVAN'S WHOLESALE DRUG COMPANY, INC., Plaintiff-Appellant, v. FARYL'S PHARMACY, INC., et al., Defendants-Appellees.
    Fifth District
    No. 5—90—0344
    Opinion filed June 4, 1991.
    Rehearing denied July 8, 1991.

      Carl E. Hasten and Nancy L. Ruyle, both of Phelps, Carmody, Hasten, Verticchio & Ruyle, of Carlinville, for appellant.

      Jason M. Rugo, of Gallop, Johnson & Neuman, of St. Louis, Missouri, for appellees Health Group Care Centers, Inc., and Miller Rutledge Corporation.
    Frederic L. Kenney and Glen A. Featherstun, both of Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur, for appellee Enloe Drugs, Inc.
    No brief filed for appellee Faryl’s Pharmacy, Inc.
   JUSTICE HARRISON

delivered the opinion of the court:

Sullivan’s Wholesale Drug Company, Inc. (Sullivan’s), filed a five-count complaint in the circuit court of Montgomery County against Faryl’s Pharmacy, Inc. (Faryl’s); Enloe Drugs, Inc. (Enloe); Health Group Care Centers, Inc. (Health Group Care); and Miller Rutledge Corporation to challenge what it alleged was an illegal kickback scheme involving the sale of drugs to nursing home residents. Count II of Sullivan’s complaint, as amended, was dismissed, and only counts I, III, IV, and V are now before us on appeal. Count I was directed against Faryl’s and Enloe and alleged tortuous interference with business relations. Count III was directed against all of the defendants and alleged violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1983, ch. 121½, par. 261 et seq.). Counts IV and V were likewise directed against all defendants, but they advanced no additional theories of recovery. They merely reiterated the substantive allegations contained in counts I and III. The only significant difference was that count IV added a prayer for punitive damages, while count V asked for injunctive relief. Following extensive discovery, the circuit court entered summary judgment in favor of defendants and against Sullivan’s as to all these counts. Sullivan’s now appeals. We affirm in part, reverse in part, and remand.

The standards governing an award of summary judgment are well established. The purpose of summary judgment is not to try an issue of fact, but to determine whether a triable issue of fact exists. Although summary judgment is recognized as a salutary procedure in the administration of justice, it should be granted with caution so that the right to trial of conflicting facts and inferences is not usurped. Only when the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law should summary judgment be awarded. O'Brien v. Rogers (1990), 198 Ill. App. 3d 341, 344, 555 N.E.2d 1005, 1007.

Because of the extreme nature of summary judgment, a court must exercise extraordinary diligence in its review of the record so as not to preempt a party’s right to fully present the factual basis for its claim. The court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. If any material facts upon which reasonable persons may disagree are identified, or if inferences which may be drawn from those facts lead to different conclusions, the court must deny the motion and direct that resolution of those facts and inferences be made at trial. 198 Ill. App. 3d at 345, 555 N.E.2d at 1007.

The record in this case is voluminous, but the basic facts and allegations are relatively straightforward. Maurice Sullivan is a registered pharmacist who operated a retail pharmacy business in Hillsboro, Illinois. In 1978, Sullivan began providing pharmacy service to the residents of a nursing home known as Hillsboro Hawthorne Lodge (the nursing home). A large number of the nursing home’s residents had been customers of Sullivan before they entered the facility, they remained his customers after entering the home, and he continued to service them through numerous changes in the nursing home’s ownership.

Ownership of the home was eventually transferred to Miller Rutledge Corporation, which was, in turn, acquired by Health Group Care in 1982. At that time, Sullivan provided pharmacy services to the nursing home through his company, Sullivan’s Wholesale Drug Company, Inc. (Sullivan’s), the nominal plaintiff in this litigation. Services were provided pursuant to an agreement terminable by either party on 30 days’ notice. Under the agreement Sullivan’s billed patients of the home individually, just as if they were customers of its retail pharmacy, and it assumed full responsibility for collecting amounts due.

In the spring of 1983, Health Group Care advised Sullivan’s that it intended to amend the agreement’s terms. A new contract was presented to Sullivan’s by Wilma McCammack, the nursing home administrator. It provided that Sullivan’s would retain responsibility for billing Medicaid patients, but that Medicare and private patients, i.e., those whose care was paid for by private insurance or by the patients themselves, would now be billed directly by the nursing home. The nursing home would then forward payment to Sullivan’s. However, Sullivan’s was not entitled to the full amount of the patient billings. Rather, the contract authorized the nursing home to deduct 15% of the total amount billed and to keep that amount for itself.

Sullivan’s believed that this proposed 15% deduction was, in effect, a kickback which the nursing home sought to exact in exchange for granting the pharmacy exclusive access to the business generated by the home’s Medicaid patients. It protested that such kickbacks were illegal, unethical, and immoral, and refused to sign. Sullivan’s was then contacted by Joyce Finkenstein, Health Group Care’s regional supervisor, who told Sullivan’s that if it would not agree to the new terms, it would not have the business and that Health Group Care would find a different pharmacy provider.

Sullivan’s explained to Finkenstein why it felt as it did, but was told simply, “Well, we have to generate money from any way we can [sic].” When Sullivan’s continued to adhere to its position, Finkenstein directed McCammack to notify Maurice Sullivan that the nursing home intended to terminate him as its consultant pharmacist and that it would no longer use his company as its primary pharmaceutical provider. By letter dated April 25, 1983, McCammack so notified Sullivan of his termination, effective in 30 days.

Sullivan’s ceased servicing the nursing home on or about June 1, 1983, and was replaced by defendant Faryl’s. With this change, the residents of the nursing home were no longer able to buy their drugs through Sullivan’s. They were required to use Faryl’s. Although there is considerable uncertainty as to whether Faryl’s actually signed the proposed contract which had been rejected by Sullivan’s, there is no dispute that Faryl’s agreed to and abided by the 15% kickback scheme to which Sullivan’s had objected.

In the circuit court, defendants attempted to justify the 15% deduction on the grounds that it was common practice and represented reasonable compensation for services provided, costs incurred, and risks assumed by the nursing home under the pharmacy provider agreement. The agreement itself stated that the 15% was compensation for “the expense incurred for labor, materials, and management time” by the nursing home. Evidence adduced by defendants, however, indicated that the 15% was also intended (1) to help offset the risk of bad debt and billing services, which were now assumed by the nursing home and not the individual pharmacy, and (2) to compensate the nursing home for various services it provided to the pharmacists, including ordering, storing, and accounting for drugs.

Sullivan’s, for its part, asserted that these claimed services were in fact illusory. According to the evidence which it adduced, the 15% charge bore no relation to the actual cost of services and risks which the nursing home assumed. Responsibility for preparing statements of charges to individual patients remained with the pharmacists. The nursing home simply incorporated the pharmacy’s statement into its billing to the nursing home residents. The only real savings to the pharmacy was that it no longer had to prepare and pay to have the individual bills mailed, and even that burden was evidently inconsequential. As for the risk of bad debt, deposition testimony was presented from various pharmacists in central Illinois which showed that the payment rate among private-paying nursing home residents was extremely high and that the risk of nonpayment was very low. There was even testimony that the new system was actually detrimental to the pharmacy provider because (1) it now took the pharmacy longer to receive payment from the nursing home than it would have if the individual patients had been billed directly, and (2) given the real possibility that the nursing home might fail financially, the pharmacy provider now risked never receiving any payment at all.

The evidence established that when the new system went into effect, the pharmacy charges to the nursing home’s residents increased. When complaints were made regarding the change and the attendant price increases, the nursing home’s administrator issued a letter in which she represented that the change had been made “[d]ue to circumstances beyond our control.” The letter further indicated that the increase in the pharmacy bills was attributable to the fact that “we had to order from both pharmacies to get started on the new system,” and that the increases would only be temporary.

The nursing home never did inform its residents of the terms of the new contract or of the 15% cut it was now taking from their pharmacy bills. Under the new system, the home simply continued to send residents itemized pharmaceutical bills like the ones issued when the residents had been billed directly by the pharmacist under the old system. Each patient would receive such a statement (they were now called “Patient Profile Reports”), and the statement would give the name of the pharmacy, the prescription number, the drug prescribed, the name of the prescribing doctor, the date of the prescription, the quantity of medication involved, the price of that medication, and the initials of the pharmacist by whom the prescription was filled. If there were multiple prescriptions, this data would be given separately for each one, and the total pharmacy charge for all prescriptions would be indicated at the bottom of the page.

The only real change for the residents under the new system was that they did not pay the pharmacy charges separately. Rather, the total charge as indicated on the Patient Profile Report was carried over to the basic nursing home bill and listed there under the category “drugs,” along with the other charges for nursing care, laundry, and the like. This permitted the residents to pay all the charges related to their care at one time with one check. The convenience of such a system is beyond dispute. Also beyond dispute, however, is that it gave residents the impression that they were being billed by the nursing home for exactly what the pharmacist was charging for the medication. That this was not so, that residents were actually being charged 15% more than the drugs cost, did not come to light until the wife of one of the residents complained directly to Faryl’s and was told that the price increases were attributable to the 15% cut the nursing home now demanded.

After several months, the nursing home replaced Faryl’s with Enloe, supposedly because of the excessive charges imposed by Faryl’s on the nursing home residents. Health Group Care had actually been in contact with Enloe even before Sullivan’s was terminated, and Maurice Sullivan testified in his deposition that McCammack had told him that if he would not sign and the nursing home could not get another local pharmacy to sign, they would use Enloe.

Enloe ultimately operated at the nursing home on the same terms which had been offered to, but rejected by, Sullivan’s. For Enloe, the 15% kickback scheme was not novel. At the time it took over from Faryl’s, Enloe was already providing pharmacy services under similar terms to another nursing home operated by defendant Health Group Care in Pana. Testimony also showed that at other nursing homes owned by different parties, Enloe permitted the homes to retain up to 25% of the gross pharmacy billings.

As indicated at the outset of this opinion, count I of Sullivan’s amended complaint sought to impose liability on Faryl’s and Enloe based on tortuous interference with business relationships. To establish a cause of action for tortuous interference with a business relationship, a plaintiff must plead and prove the existence of a valid business relationship or expectancy, the defendant’s knowledge of that relationship or expectancy, intentional interference by the defendant which induced or caused the breach or termination of the relationship or expectancy, and resulting damage. Alfieri v. CSX Corp. (1990), 201 Ill. App. 3d 559, 569, 559 N.E.2d 166, 173.

In the record before us there is no evidence that Faryl’s or Enloe induced or caused either the residents of the nursing home or the nursing home itself to sever the business relationships which they had with Sullivan’s. Although there was certainly communication between Health Group Care and Faryl’s and Enloe prior to the termination of plaintiff’s services, there is no genuine issue that those communications were initiated by Health Group Care, not Faryl’s or Enloe. There is absolutely no indication that Faryl’s or Enloe actively solicited Sullivan’s business. They merely agreed to take over that business after Sullivan’s was terminated. Plaintiff has not cited and we have not found any authority which suggests that such an agreement, standing alone, is sufficient to constitute actionable inducement. Summary judgment in favor of Faryl’s and Enloe and against Sullivan’s was therefore proper on count I of Sullivan’s amended complaint. The circuit court was likewise correct in granting summary judgment in favor of Faryl’s and Enloe on counts IV and V to the extent that those counts sought relief on a tortuous interference theory.

We turn then to count III, which alleged that all defendants had violated the Consumer Fraud Act (Ill. Rev. Stat. 1983, ch. 121½, par. 261 et seq.). Section 2 of the Act (Ill. Rev. Stat. 1983, ch. 121½, par. 262) provides:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the ‘Uniform Deceptive Trade Practices Act’ *** in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.”

In construing the terms of this statute, consideration is to be given to the interpretations of the Federal Trade Commission and the Federal courts relating to section 5(a) of the Federal Trade Commission Act (FTCA) (15 U.S.C. §45(a) (1973)). (Ill. Rev. Stat. 1983, ch. 121½, par. 262.) The Federal courts have held that section 5(a) of the FTCA prohibits conduct which violates section 2(c) of the Clayton Act (Laughlin v. Evanston Hospital (1990), 133 Ill. 2d 374, 389, 550 N.E.2d 986, 992), as well as “unfair” conduct which is neither in violation of the Federal antitrust laws nor deceptive (see, e.g., Spiegel, Inc. v. Federal Trade Comm’n (7th Cir. 1976), 540 F.2d 287). The Federal courts have further held that in determining whether a practice that is neither deceptive nor in violation of the Federal antitrust laws is nonetheless unfair, the factors to be considered include:

“ ‘(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise— whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).’” Federal Trade Comm’n v. Sperry & Hutchinson Co. (1972), 405 U.S. 233, 244 n.5, 31 L. Ed. 2d 170, 179 n.5, 92 S. Ct. 898, 905 n.5, quoting 29 Fed. Reg. 8355 (1964).

Drawing on this expansive interpretation of the FTCA, Sullivan’s argues that defendants should be held liable here not only because their conduct was deceptive, but also because it constituted an “unfair method of competition” in that it violated the provisions of section 5(a) of the Federal Trade Commission Act (15 U.S.C. §45(a) (1973)), section 10—1 of the Illinois Pharmacy Practice Act (Ill. Rev. Stat. 1983, ch. 111, par. 4032), and section 2(c) of the Clayton Act, as amended by the Robinson-Patman Act (15 U.S.C. § 13(c) (1988)). This analysis cannot withstand scrutiny.

While the construction placed on the FTCA by the Federal courts should be considered in construing the Consumer Fraud Act, the two statutes are not coextensive. Just because conduct may run afoul of the FTCA or section 2(c) of the Clayton Act does not mean that it automatically violates the Consumer Fraud Act. To the contrary, our supreme court has now held quite explicitly that, unlike the Federal law, the reach of the Consumer Fraud Act is “limited to conduct that defrauds or deceives consumers or others.” (Laughlin v. Evanston Hospital (1990), 133 Ill. 2d 374, 390, 550 N.E.2d 986, 993.) Thus, Sullivan’s cause of action must stand or fall on whether defendants’ conduct was deceptive. If it was not deceptive, whether it violated other laws or ethical standards is irrelevant.

Defendants argue vigorously that Sullivan’s has no standing to sue them under the Consumer Fraud Act (Ill. Rev. Stat. 1983, ch. 121½, par. 261 et seq.) because it is not a “consumer.” They are wrong. The protections of the statute are not limited to consumers. That this is so is made clear by the full title of the act itself, which indicates that it is “An Act to protect consumers and borrowers and businessmen against fraud, unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce ***.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 121½, par. 261 et seq.) Moreover, section 10a of the Act (Ill. Rev. Stat. 1983, ch.121½, par. 270a) provides that “[a]ny person who suffers damage as a result of a violation of *** this Act committed by any other person may bring an action against such person.” (Emphasis added.) The Act expressly defines the term “person” to include any corporation, company or business entity. Ill. Rev. Stat. 1983, ch. 121½, par. 261(c).

To accept defendants’ position would require us to ignore the clear and unambiguous language of the statute. It would also require us to ignore the admonition in section 11a of the statute (Ill. Rev. Stat. 1983, ch. 121½, par. 271a) that the Act “shall be liberally construed to effect the purposes thereof.” Thus, while some authorities may be construed as holding otherwise, we believe that the only possible conclusion is that aggrieved businessmen do have standing to bring suit under the Act. See Downers Grove Volkswagen, Inc. v. Wigglesworth Imports, Inc. (1989), 190 Ill. App. 3d 524, 531-34, 546 N.E.2d 33, 39-41.

Defendants Health Group Care and Miller Rutledge contend that they cannot be liable to Sullivan’s because their arrangement with the company was terminable at will and, as a matter of law, a “party to an at-will contract does not incur tort liability to the other party, under any theory, when it terminates the contract according to its terms.” (Emphasis in original.) The problem with defendants’ argument is that count III does not purport to advance a common law tort claim. This is a statutory action under the Consumer Fraud Act (Ill. Rev. Stat. 1983, ch. 121½, par. 261 et seq.). In order to establish a violation of the Consumer Fraud Act, a party must show a deceptive act or practice, intent by the defendant that others rely on that deception, and that the deceptive act or practice occurred in the course of conduct involving trade or commerce. (Ill. Rev. Stat. 1983, ch. 121½, par. 262; Lane v. Fabert (1989), 178 Ill. App. 3d 698, 705, 533 N.E.2d 546, 551.) Common law notions of at-will contracts do not enter into this formula. Accordingly, the fact that one party may terminate his business relationship with another at will does not give that party license to engage in deceptive practices which are unlawful under the statute.

Defendants next argue that they cannot be held liable because they engaged in no deceptive practice. The record showed, however, that all of the defendants participated in issuing bills to the residents of the nursing home which indicated that those residents were being charged a specified amount for specified drugs, when in fact the charge for pharmacy services was only 85% of what the patients were required to pay. A trier of fact could certainly conclude that such a practice was patently deceptive.

Defendant Health Group Care attempted to establish that its 15% fee was justifiable for services rendered, but we are aware of no authority for a “services rendered” exception for conduct which is otherwise deceptive. Moreover, as our discussion of the evidence has indicated, substantial testimony was adduced which indicated that the 15% charge bore no real relationship to the actual value of the services provided by the nursing home, which were de minimis. At the very least, there was a genuine issue of fact as to this point.

Defendants further argue that their billing practices were not deceptive because a copy of the contract disclosing the 15% kickback scheme had been submitted to regulatory authorities and therefore could have been reviewed by any resident of the home who was interested in its contents. We find this argument singularly unpersuasive.

Defendants base their argument on Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill. 2d 278, 499 N.E.2d 1319, where an insurance company was charged with selling policies with limits higher than potential liability under State law. In that case, the supreme court found that there was no deceptive practice because the legal limits were defined by statute, and the statute was a matter of public record available to whomever was interested. That result is not surprising considering that all persons are presumed to know the law. (114 Ill. 2d at 292, 499 N.E.2d at 1325.) Here, however, the same presumption does not apply, for we are not dealing with a matter which is specified by statute, and it is by no means clear that the agreement in dispute was, in fact, readily available for review.

Defendants cite numerous Federal regulations governing nursing homes which receive Medicare and Medicaid payments. Those regulations do require that disclosure of pharmacy provider agreements be made to State and Federal agencies, and the evidence indicated that such disclosure was made to the relevant governmental agencies. However, there is nothing before us which indicates that those agencies had any provisions for allowing residents of the nursing home or members of the public to review the copies of the pharmacy provider agreements submitted to them.

Moreover, the regulations invoked by defendants pertain solely to Medicare and Medicaid. Medicaid patients, however, were not even subject to the 15% kickback scheme. The scheme was directed in large part to private-pay patients, and we have difficulty understanding why such patients would ever have thought to check with the governmental agencies charged with enforcing Medicare and Medicaid rules for information regarding the charges for their medication. If those patients checked with anyone, presumably it would be with their private insurers, and there is nothing before us to suggest that any private insurers were advised of the kickback agreement here.

We are likewise unpersuaded by defendants’ claim that the agreement was not deceptive because it was on file in the nursing home office and could have been reviewed there on demand. As a preliminary matter, there is a genuine issue as to whether Faryl’s ever signed the pharmacy provider agreement which contained the kickback clause. Defendants argue that this is immaterial because even if Faryl’s did not actually sign the agreement, a copy of the unsigned agreement was on file at all times in the nursing home office. We fail to see, however, how an unsigned agreement could possibly have placed the residents of the nursing home on notice of anything. If the agreement was not signed, a reasonable inference would be that Faryl’s had not agreed to it and that it had no effect.

Furthermore, we cannot understand under the circumstances present here when a resident of the nursing home would ever have even thought to check the nursing home’s records regarding charges for pharmaceutical services. The bills themselves gave absolutely no indication that any charge was made for anything except the actual price of the drugs, and when the nursing home was questioned regarding the change in pharmacists, it gave no hint that a new charge was being imposed by the nursing home under the new system.

In any case, we do not believe the onus of discovering the changes in the agreement was on the residents. Rather, the nursing home was obliged to affirmatively disclose those changes. Indeed, the very regulations invoked by defendants expressly state that nursing home residents must be “informed in writing of all changes in services and charges before or at the time of admission and on a continuing basis.” (Long Term Care Survey Forms, 53 Fed. Reg. 22868 (1988).) This was not done here. As previously noted, the residents were never informed by the nursing home that it was taking a 15% cut from their pharmacy bills. Defendants’ “public record” defense must therefore fail.

Defendants argue that summary judgment was properly granted in their favor because there was no showing that their conduct resulted in public injury. This argument is also without merit. No allegation of public injury is required to recover money damages under the Consumer Fraud Act. (Duncavage v. Allen (1986), 147 Ill. App. 3d 88, 102, 497 N.E.2d 433, 441; see Warren v. LeMay (1986), 142 Ill. App. 3d 550, 568, 491 N.E.2d 464, 475 (single transaction sufficient); Tague v. Molitor Motor Co. (1985), 139 Ill. App. 3d 313, 316, 487 N.E.2d 436, 437 (action not defeated on grounds it constituted only private wrong).) This was so before and it has now been made explicit by the legislature. See Ill. Rev. Stat. 1989, ch. 121½, par. 270a(a) (“Proof of a public injury, a pattern, or an effect on consumers generally shall not be required”).

In any case, evidence of public injury was presented. As our statement of the facts indicated, prices did go up, at least under Faryl’s, when the 15% kickback was instituted. Moreover, expert testimony was presented by plaintiff which showed that kickback schemes of this sort have an adverse effect on competition among pharmacy service providers, with a corresponding detriment to the consuming public. This conclusion is scarcely surprising. If the evidence thus far presented is correct, the nursing home residents were clearly paying for goods and services they were not receiving. It is difficult to see how there can be any possible social utility in this.

There can be no dispute that the misrepresentation made by the defendants went to a material fact, i.e., the price which the nursing home residents were being charged for their prescriptions, and we think it obvious that defendants intended for the nursing home residents to rely on their misrepresentation. Actual reliance was established. The nursing home residents paid the bills in full. In any case, actual reliance was not required. Misrepresentations are actionable even when actual reliance has not been established. Salkeld v. V.R. Business Brokers (1989), 192 Ill. App. 3d 663, 677, 548 N.E.2d 1151, 1160.

Defendants claim that Sullivan’s failed to establish that the injuries it allegedly sustained were proximately caused by their allegedly deceptive conduct. Proximate cause, however, is a question of fact for resolution by the trier of fact (Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 393, 493 N.E.2d 1022, 1028), and we do not believe that there was an adequate basis here for concluding that the requisite causal link was absent as a matter of law. Nor do we believe that the circuit could have concluded as a matter of law that the damages sought by Sullivan’s were too speculative. We also do not believe, on the record before us, that there is any absolute legal impediment to the recovery by Sullivan’s of punitive damages. We therefore reverse the entry of summary judgment against Sullivan’s on count III of its complaint and on count IV to the extent that count IV is premised on a violation of the Consumer Fraud Act.

However, we affirm the entry of summary judgment against Sullivan’s as to count V, which sought preliminary and permanent injunctive relief to bar defendants “from performing further under the arrangements and contracts” described in the complaint. The circuit court found that Health Group Care and Miller Rutledge Corporation are no longer in the nursing home business and that both Faryl’s and Enloe are no longer the primary pharmacy providers under the challenged agreements. This finding has not been challenged by Sullivan’s. Sullivan’s request for injunctive relief is therefore moot. Under these circumstances, we need not reach defendants’ contention that, as a matter of law, injunctive relief is never available under the Consumer Fraud Act under the circumstances present here.

For the foregoing reasons, the judgment of the circuit court is affirmed insofar as it granted summary judgment to defendants on counts I and V and that portion of count IV which sought recovery based on tortuous interference with a business relationship. The judgment is reversed to the extent it granted summary judgment to defendants on count III and that portion of count IV based on the Consumer Fraud Act, and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

HOWERTON and WELCH, JJ., concur.

       Because conduct which is merely unethical is not actionable under the Consumer Fraud Act, the circuit court here also properly refused to consider the expert testimony adduced by Sullivan’s that defendants’ conduct did not comport with the professional standards governing pharmacy providers.


author: JUSTICE HOWERTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY JOHNSON, Defendant-Appellant.
    Fifth District
    No. 5—89—0740
    Opinion filed June 5, 1991.
    Rehearing denied July 9, 1991.

      Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    No brief filed for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

The defendant, Stanley Johnson, was convicted of burglary by a jury in the circuit court of Clinton County. Defendant was sentenced to nine years’ imprisonment and ordered to pay $19,998.78 restitution to J.C. Penney’s, the victim of his burglary. On appeal, defendant contends that the court abused its discretion in ordering him to pay restitution of $19,998.78, or in the alternative, this cause should be remanded to the trial court in order that a time limit or method of payment be established. On motion of the State, this cause was taken under advisement without appellee’s brief and without oral argument (134 Ill. 2d R. 352(a)). We must dismiss this appeal because of defendant’s failure to file a post-trial motion.

Section 116—1 of the Code of Criminal Procedure of 1963 states:

“(a) Following a verdict or finding of guilty the court may grant the defendant a new trial.
(b) A written motion for a new trial shall be filed by the defendant within 30 days following the entry of a finding or the return of a verdict. Reasonable notice of the motion shall be served upon the State.
(c) The motion for a new trial shall specify the grounds therefor.” (Ill. Rev. Stat. 1989, ch. 38, par. 116—1.)

The filing of a post-trial motion is applicable to a bench trial as well as a jury trial. (People v. Enoch (1988), 122 Ill. 2d 176, 187-88, 522 N.E.2d 1124, 1130.) The filing of a post-trial motion is not without its purpose. Failure to raise issues in the trial court denies that court the opportunity to grant a new trial, if warranted, or correct other errors which may have occurred at the trial level. This casts a needless burden of preparing and processing appeals upon appellate counsel for the defense, the prosecution, and upon the court of review. Without a post-trial motion limiting the consideration to errors considered signifleant, the appeal is open-ended. Appellate counsel may comb the record for every semblance of error and raise issues on appeal whether or not trial counsel considered them of any importance. People v. Caballero (1984), 102 Ill. 2d 23, 31, 464 N.E.2d 223, 226.

There have been exceptions to the requirement of filing a post-trial motion by a defendant. It has been held that the requirement of a written motion can be waived if a defendant makes an oral motion for a new trial and the State does not object. The defendant may then avail himself of any ground for a new trial which might appear in the record. This apparent circumvention of the requirement that the motion for a new trial be in writing and specify the grounds is based on the concept of waiver. Since the State failed to object to the oral motion, it has waived the requirement of the statute. (Enoch, 122 Ill. 2d at 188, 522 N.E.2d at 1130-31; People v. Flynn (1956), 8 Ill. 2d 116, 118-20, 133 N.E.2d 257, 258.) However, when no motion for a new trial is made, the first opportunity that the State has to object to defendant’s failure to comply with the statute is when the defendant raises issues on appeal. (Enoch, 122 Ill. 2d at 188, 522 N.E.2d at 1131.) Defendant in the case at bar also failed to make a motion to present an oral post-trial motion.

Another exception to the filing of a written post-trial motion is the plain-error doctrine of Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). That rule provides that any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court. (Enoch, 122 Ill. 2d at 189, 522 N.E.2d at 1131.) Failure to file a written post-trial motion limits appellate review to: (1) constitutional issues which have been raised at trial and which can be raised later in a post-conviction petition (Ill. Rev. Stat. 1989, ch. 38, par. 122—1); (2) sufficiency of the evidence; and (3) plain error. By limiting appellate review in cases where no post-trial motion is filed, judicial economy and finality of judgments will be promoted. At the same time, the integrity of the judicial system and the rights of criminal defendants will be protected. Enoch, 122 Ill. 2d at 190, 522 N.E.2d at 1132.

In People v. Hammond (1977), 48 Ill. App. 3d 707, 362 N.E.2d 1361, this court dismissed defendant’s appeal for his failure to file any post-trial motion. The issues presented for review on that appeal were the propriety of the trial court’s refusal to instruct the jury on the offense of criminal damage to property and the correctness of the jury’s determination that the intoxication defense was not valid. In dismissing the appeal, we explained that the reasons for the waiver rule are two-fold: to inform the trial court of a possible mistake so as to give it an opportunity to correct the mistake, and to not allow a defendant to object to that which he had acquiesced in; therefore, the policy behind the waiver rule is broader than merely the situation where a defendant fails to include an issue in his written post-trial motion. We further explained that a defendant who failed to file any post-trial motion also fails to inform the trial court of an alleged error so as to give it the opportunity to correct the error and such a failure may also have been, in fact, an acquiescence in the error alleged. Hammond, 48 Ill. App. 3d at 708-09, 362 N.E.2d at 1362.

In People v. Fernandez (1978), 66 Ill. App. 3d 103, 383 N.E.2d 663, the defendant, who was sentenced to concurrent terms of imprisonment of 20 to 40 years for armed robbery and one to three years for aggravated battery, alleged on appeal that he was not proved guilty beyond a reasonable doubt, that the jury was improperly selected, that certain evidentiary rulings by the trial court denied him a fair trial, that he was prejudiced by prosecutorial misconduct, and that the sentences imposed were excessive. Fernandez, however, failed to file any post-trial motion. This court noted that the failure to file any post-trial motion in the trial court could be deemed a waiver of all contentions of error, resulting in dismissal of the appeal. (Fernandez, 66 Ill. App. 3d at 104-05, 383 N.E.2d at 664.) After this court failed to find plain error, it did, however, discuss certain alleged errors and affirm the conviction.

In the case at bar, the defendant is not attacking his conviction but is attacking only a portion of his sentence. In People v. Parr (1976), 35 Ill. App. 3d 539, 341 N.E.2d 439, this court held that the failure to file a motion to reduce sentence does not constitute a waiver of the severity of the sentence imposed. Parr, however, is factually distinguishable from the case presently before us. Parr was convicted of involuntary manslaughter by a jury and received a sentence of from three to nine years’ imprisonment. On appeal, beside excessiveness of sentence, Parr contended that he was not proved guilty beyond a reasonable doubt and the trial court erred in giving a certain non-Illinois Pattern Jury Instruction. There is no indication in the Parr opinion that a post-trial motion was not filed. In the case at bar, no post-trial motion in any form was filed; therefore, as held in Fernandez, this cause can be dismissed.

In the case at bar, defendant only questions the imposition of restitution pursuant to section 5—5—6 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—6). No plain error is alleged and no exception to the waiver rule applies. Not only did he not file a written post-trial motion, he failed to request of the trial court a statement of reasons for the sentence to pay restitution, which also waives the issue for appeal. See People v. Davis (1982), 93 Ill. 2d 155, 162-63, 442 N.E.2d 855, 858; see also People v. Wallace (1991), 143 Ill. 2d 59.

For defendant’s failure to file a written post-trial motion, this appeal is dismissed; see People v. Hammond (1977), 48 Ill. App. 3d 707, 362 N.E.2d at 1362.

Appeal dismissed.

RARICK, P.J., and LEWIS, J., concur.


text:
      In re MARRIAGE OF JOHN E. HUMPHREY, Petitioner, and LULA D. HUMPHREY, Respondent-Appellee (Verlyn L. White, d/b/a Medic's Ambulance Service, Intervenor-Appellant).
    Fifth District
    No. 5—90—0148
    Opinion filed June 6, 1991.

      Eric M. Rhein, of Edward J. Blake, Jr., P.C., of Belleville, for appellant.
    Patrick M. Flynn, of Flynn & Guymon, of Belleville, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

The judgment that dissolved the Humphrey marriage ordered the husband to pay maintenance and child support. He did not pay. The circuit court held him in contempt of court, entered judgment against him for arrearages, and ordered him to pay 25% of the gross proceeds payable from the Illinois Department of Public Aid to his business, Medic’s Ambulance Service.

The husband then sold the ambulance service to Earl Allston, who in turn sold it to Verlyn White, who filed a motion for leave to intervene and a motion for declaratory relief. The intervenor claimed that she owed neither support nor maintenance and therefore should not be required to pay over to the ex-wife 25% of Medic’s Public Aid receipts.

The circuit court allowed intervention but denied declaratory relief and instead ordered the intervenor to pay 25% of the proceeds she had received from Public Aid and imposed a constructive trust on 25% of all future Public Aid receipts. The circuit court based its ruling on the following findings: (1) intervenor had received Public Aid money; and (2) the husband, in reality, had not sold the ambulance service, but instead the deal he made with intervenor was a “sham and a subterfuge” that allowed him to retain the control of the ambulance service and to avoid attachment of the income generated by the ambulance service.

A constructive trust arises by operation of law (Anderson v. Lybeck (1958), 15 Ill. 2d 227, 154 N.E.2d 259) and requires for its imposition some form of wrongful or unconscionable conduct. (Sutiles v. Vogel (1988), 126 Ill. 2d 186, 533 N.E.2d 901.) Constructive trusts are imposed when: (1) there has been actual fraud; or (2) a fiduciary relationship has been abused. Lux v. Lelija (1958), 14 Ill. 2d 540, 152 N.E.2d 853.

In the case at bar, there was no fiduciary relationship between the intervenor and the children and the ex-wife to whom support was owed. The question for the circuit court was whether the evidence established fraud so that a trust, pro tanto 25% of the receipts from Public Aid, could be imposed. The circuit court ruled that the evidence established fraud and imposed the trust. For us, the issue is whether that ruling is against the manifest weight of the evidence.

The husband sold the ambulance service to Earl Allston, who, in turn, sold the business to Verlyn White, the intervenor. Allston testified:

“Q. Prior to signing this agreement, had you discussed with Mr. Humphrey that an agreement would be prepared?
A. Well, he had agreed to pay me back, you know.
Q. What did he agree to do?
A. Just repay the loan back.
Q. Okay. I don’t understand. What loan?
A. Well, you know, the monies for purchasing the ambulance service.
Q. What money would that be? Do you understand the question, Mr. Allston?
A. I’m getting confused.
Q. Okay. Let’s back up a minute. Forgetting about the agreement, can you tell me what was your understanding as to the purchase of the business? What were you going to do? What was Mr. Humphrey going to do?
A. Well, he was just going to be employed once we had got the business, taken over and stuff, if things were going to go right.
* * *
Q. You said a while ago that Mr. Humphrey had agreed to repay the loan; that was the money for the purchase of the business. Do you remember saying that?
A. Yes.
Q. What loan are you talking about?
A. Well, see my father was going to loan me the money to go into business with a friend of mine. He had a lawsuit. He was in an accident, so he had the money.
* * *
Q. Now, this money that you were going to borrow from your father, was it your understanding that Mr. Humphrey was going to help you repay that loan?
A. Yes.
* * *
Q. When you signed the agreement, did you give Mr. Humphrey any money?
A. No, sir.
Q. Did he give you any money?
A. (Nodding)
Q. Did he give you anything?
A. Nope.
* * *
Q. Right. In connection -with business, sorry. Did you ever take control of the business?
A. Not really.
Q. Did you ever begin to operate the business?
A. No. Like I told you before, I didn’t know a lot of things about it anyway.”

It is obvious that no real purchase was contemplated. Rather, the evidence established a ruse to defeat the order of support. It is equally obvious from Allston’s testimony regarding the sale of the business to Verlyn White that Mr. Humphrey, now ostensibly just an employee, was actively involved in the sale of the business to Verlyn White. When testifying about signing the contract to sell the business to Verlyn White, Allston testified as follows:

“Q. Who gave you the document? Who gave you the document to sign?
A. Mr. Humphrey.
Q. Who else was present at the time that you signed it?
A. Mrs. White.”

The evidence amply supports the circuit court’s finding that these “transactions” were shams, tools of subterfuge, and therefore fraudulent. Accordingly, the circuit court did not err by imposing a constructive trust, pro tanto, 25% of whatever the ambulance service would receive from Public Aid. The circuit court, exercising its equity powers, had the discretion to do more: it could have imposed a trust on all the assets of the ambulance service.

The circuit court is affirmed.

Affirmed.

LEWIS and GOLDENHERSH, JJ., concur.


text:
    FRANCES M. THOMPSON, Mother and Next Friend of William Matthew Abel, et al., Plaintiff-Appellant, v. ARTHUR TITE, d/b/a Ye Ole Tavern, et al., Defendants-Appellees.
    Fifth District
    No. 5—90—0181
    Opinion filed June 7, 1991.
    James S. Reeves, of Alton, for appellant.
    Thomas L. Kilbride, of Klockau, McCarthy, Ellison & Marquis, P.C., of Rock Island, for appellees.
   JUSTICE HOWERTON

delivered the opinion of the court:

We reverse the summary judgment granted to defendants in this dramshop case. Plaintiff sued pursuant to the Liquor Control Act of 1934, commonly known as the Dramshop Act (Ill. Rev. Stat. 1989, ch. 43, par. 135), for loss of means of support caused by an intoxicated person. The circuit court granted summary judgment because decedent had not kept his child support payments current.

A motion for summary judgment is properly granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005; Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457; Jones v. Petrolane-Cirgas, Inc. (1989), 186 Ill. App. 3d 1030, 542 N.E.2d 1186.) A reviewing court may reverse the circuit court if it finds that a genuine issue of material fact exists. (Rubin v. City National Bank & Trust Co. (1980), 81 Ill. App. 3d 1020, 402 N.E.2d 281.) In determining whether a genuine issue of material fact exists, this court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. (Baier v. State Farm Insurance Co. (1975), 28 Ill. App. 3d 917, 329 N.E.2d 543, aff'd (1977), 66 Ill. 2d 119, 361 N.E.2d 1100.) In the case at bar, if plaintiff’s claim of future support has a factual basis, then granting summary judgment against her was error.

The pleadings, depositions and affidavits provide the following facts: Frances Thompson, plaintiff, and William Abel were married in 1965 and were divorced in 1971. The divorce decree ordered William to pay $150 each month in child support. In 1979, that amount was increased to $275 each month. Because William stopped making regular payments in 1980, Frances, in 1987, filed a petition for rule to show cause. Two weeks later and before the hearing on the rule to show cause, an intoxicated gunman shot and killed William Abel in the Ye Ole Tavern parking lot. Frances, as next friend to her three children, sued Ye Ole Tavern and Congress of Independent Unions for loss of the means of support pursuant to the Dramshop Act, which provides that a cause of action shall lie for injuries to means of support caused by an intoxicated person.

Defendants, in their motion for summary judgment, argued that William Abel had not paid child support for over six years, that therefore plaintiff was unable to show that her ex-husband was providing actual support, and that without proof of actual support, summary judgment should be entered.

Recovery for loss of support under the Dramshop Act does not necessarily die with the person actually contributing support, but will survive if it can be shown that support likely would have continued had death not intervened. (Angeloff v. Raymond, (1979), 70 Ill. App. 3d 594, 388 N.E.2d 1128.) However, recovery cannot be based on a mere future potentiality of support not presently provable. See Farmers State Bank & Trust Co. v. Lahey's Lounge, Inc. (1988), 165 Ill. App. 3d 473, 519 N.E.2d 121, appeal denied (1988), 121 Ill. 2d 568, 526 N.E.2d 829; Stevens v. B & L Package Liquors, Inc. (1978), 66 Ill. App. 3d 120, 383 N.E.2d 676; Shiflett v. Madison (1969), 105 Ill. App. 2d 382, 245 N.E.2d 567; Robertson v. White (1956), 11 Ill. App. 2d 177, 136 N.E.2d 550.

Defendants claimed that since William Abel was in arrears on child support, plaintiff’s children had only a future potentiality of support. We disagree. To recover under the Dramshop Act, plaintiff must prove actual support prior to the injury or death and prove that this support would have continued but for the injury. See Robertson v. White (1956), 11 Ill. App. 2d 177, 136 N.E.2d 550.

Though defendants argue to the contrary, no cases hold that loss of support can be proved only by showing actual present support. In fact, the opposite is true. In Judy v. Day (1979), 68 Ill. App. 3d 156, 385 N.E.2d 891, the court stated that proof of present support being provided at the time of the violation of the Dramshop Act is not the sole method of determining whether a reasonable expectation of future support exists; rather, it is merely the easiest and most reliable method. (Judy, 68 Ill. App. 3d at 159, 385 N.E.2d at 893-94.) The fact that William Abel was not making regular child support payments at the time of his death does not, as a matter of law, prove that plaintiff would be unable to prove a loss of means of support. Judy v. Day (1979), 68 Ill. App. 3d 156, 385 N.E.2d 891.

Here, the record shows that: (1) William Abel was under a court order to pay child support; (2) William Abel paid child support until 1980; (3) William Abel was killed one week before he was to appear in court to show cause why he had not paid child support; and (4) William Abel was employed and capable of providing support. These facts present a genuine issue of material fact; namely, whether his children lost means of support caused by an intoxicated person.

The circuit court is reversed and the cause remanded.

Reversed and remanded.

LEWIS and GOLDENHERSH, JJ., concur.


author: JUSTICE CHAPMAN

text:
    JOHN KLEE, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF BELLEVILLE, Defendant-Appellee.
    Fifth District
    No. 5—90—0158
    Opinion filed June 7, 1991.
    Melroy B. Hutnick, of Belleville, for appellant.
    Robert J. Sprague, of Sprague & Sprague, of Belleville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The chief of police of the City of Belleville, Illinois, charged Officer John Klee with violating departmental regulations in connection with an incident which occurred on January 31, 1989. Klee was charged with violating the following sections of the police manual:

(1.) 30.08 — Members shall conduct themselves to avoid bringing the department into disrepute.
(2.) 30.16(B) — Members shall preserve the peace.
(3.) 30.16(E) — Members shall enforce all Federal, State, and local laws and ordinances coming within departmental jurisdiction.
(4.) 30.28 — Members shall observe and obey all laws and ordinances and all rules and regulations of the department.
(5.) 36.20 — Malicious assaults or batteries committed by members constitute gross misconduct.
(6.) 37.24 — Members shall be courteous and orderly in their dealing with the public. They shall perform their duties quietly avoiding harsh, violent, profane or insolent language and shall always remain calm regardless of provocation to do otherwise.

In an administrative proceeding, the Board of Fire and Police Commissioners of the City of Belleville (Board) found Klee guilty on all charges and ordered him suspended for 10 days.

Klee sought review of the Board’s decision in the circuit court, which affirmed the Board’s decision. On appeal, Klee contends that the Board’s finding that he violated department regulations is against the manifest weight of the evidence, and that, even if the Board’s findings were correct, the 10-day suspension was unwarranted.

On January 31, 1989, Officer Klee was the “maintaining” officer and the “investigation of inoperable vehicles” officer for the City of Belleville. Klee testified that on January 31, 1989, he was investigating a complaint of a possible inoperable vehicle. The automobile was a brown Lincoln Continental which belonged to Ernst Steele. Klee testified that he observed the Lincoln along with a second vehicle parked next to it at approximately 10:15 a.m. on January 31, 1989. He also observed a man working on the second vehicle. Klee asked the man his name, but the man was reluctant to respond. Eventually the man identified himself as Robert Steele, the brother of Ernst Steele. Klee testified that he attempted to convince Robert Steele to take the inoperable vehicle notice and notify his brother of the problem. Robert Steele refused to accept the notice and placed his hands in his pockets. Klee testified that he then “grabbed” Robert Steele’s coat lapel and “stuck a notice in his coat and walked away.” Klee described why he took hold of Robert Steele’s jacket: “[Mjainly because I had listened to him enough and I explained it to him and I thought it would help to cooperate by notifying his own brother about the problem that he had.” Klee admitted that when questioned about the incident, he told Thelma Stoops, Robert Steele’s sister, that he was having a bad day. Klee also testified that he had been a member of the force for 121/2 years and had been serving as inoperable vehicles officer for the past 10 months. He had received no specific guidelines from the department for the inoperable vehicles position. Klee testified that he adopted his own procedures for issuing inoperable vehicle notices. He would try to contact the owner personally, and if that failed, he would wait a specified period of time and then have the vehicle towed. Klee stated that whenever possible he would serve the notice on family members so that they could contact the owner. He used this procedure in an attempt to prevent the owner from incurring the towing expense. He testified that this procedure was successful on 40 or 50 prior occasions. He admitted that when serving papers for inoperable vehicles an officer should not touch the person if he refuses to accept the papers.

Robert Steele testified that he did not want to take the notice because it did not “pertain” to him and because he had just been released from the penitentiary and did not need any trouble. Steele stated that he began walking away when Klee told him to “wait a minute.” Steele responded, “I don’t have to accept this.” Klee then grabbed Steele by the shirt and “shoved” the derelict notice down his “chest.” Steele stated that the notice was torn while Klee was shoving it into his “chest.” He also stated that Klee had yelled at him during the incident. Steele admitted that he was not injured during the dispute and that he had previously been convicted of two felonies.

Thelma Stoops, Steele’s sister, testified that Steele was upset immediately after the incident. She stated that when she confronted Klee shortly after the incident occurred, Klee told her that he was having a bad day. She testified that Klee was abrasive towards her during the conversation.

The decision of an administrative agency should not be set aside unless the opposite conclusion is clearly evident. (King v. City of Chicago (1978), 60 Ill. App. 3d 504, 508, 377 N.E.2d 102, 106.) The reviewing court can only set aside the findings of the administrative agency if they are against the manifest weight of the evidence. (Moriarty v. Police Board (1972), 7 Ill. App. 3d 978, 289 N.E.2d 32.) On review, we determine only whether there is evidence which fairly tends to support the Board’s decision. (Everly v. Chicago Police Board (1983), 119 Ill. App. 3d 631, 637, 456 N.E.2d 992, 996.) The assessment of the credibility of the witness is a matter for the trier of fact. (Douglas v. Daniels (1978), 64 Ill. App. 3d 1022, 1028, 382 N.E.2d 90, 95.) We conclude that there was sufficient evidence to support the Board’s determination that Klee violated the departmental rules set forth above. There was evidence that he raised his voice, grabbed Steele, and shoved the notice in Steele’s coat. Such conduct is clearly in violation of the departmental rules.

Klee next contends that any violations that he committed were so minor that the 10-day suspension was unwarranted. We disagree.

A single, valid finding of a violation of departmental rules will authorize dismissal. (King, 60 Ill. App. 3d at 508, 377 N.E.2d at 106; Moriarty, 7 Ill. App. 3d at 982, 289 N.E.2d at 35.) “By the very nature of his employment a police officer is in the eyes of the public and for the good of the department must exercise sound judgment and realize his responsibilities to the department and the public at all times.” (Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill. App. 3d 864, 870, 278 N.E.2d 212, 216.) Officer Klee failed to exercise sound judgment in this case and violated departmental rules. The Board has broad discretion in imposing penalties, and we conclude there was no abuse of discretion in the imposition of a 10-day suspension under the circumstances of this case. Zinser v. Board of Fire & Police Commissioners (1961), 28 Ill. App. 2d 435, 172 N.E.2d 33.

For the foregoing reasons, the judgment of the circuit court of St. Clair County, Illinois, is affirmed.

Affirmed.

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