text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD SMITH, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—2613
    Opinion filed June 29, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kathleen Howlett, and Lisa Goldsand, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant Ronald Smith was found guilty of four counts of armed robbery and sentenced to 14 years of imprisonment, with three years of mandatory supervision upon release. Defendant also pleaded guilty to a charge of unlawful use of a firearm, for which he was sentenced to four years of imprisonment to be served concurrently with the armed robbery sentence. For the following reasons, we affirm.

The transcript of proceedings taken at the trial of this case indicates the following. Patrick Henson, a sales clerk at a 7-11 store in Riverside, testified that defendant entered the 7-11 at about 1 a.m. on December 7, 1985. Defendant asked to pin-chase beer. Henson replied that the local law prohibited him from selling beer after 11 p.m., but that the neighboring town of Lyons allowed the sale of beer until 4 a.m. Defendant commented that the local law was stupid and asked to buy cottage cheese. Henson assisted defendant in finding cottage cheese and potato chips. As defendant approached the sales counter, Henson noticed defendant had a limp. Henson did not notice anything else unusual about defendant.

After placing the goods on the counter, defendant produced a gun and demanded that Henson empty the cash register onto the counter, except for the change. Defendant then asked for Henson’s own money. Henson also testified that defendant left the money on the counter for several minutes. Defendant told two other people in the store, who were friends of Henson, to go over by the automatic teller machine, where they could not be seen by people outside the store. Defendant then had Henson get him two six-packs of bottled Old Style beer, cartons of Kool cigarettes and five bottles of wine. Defendant asked for hard liquor.

Next, defendant stood behind a cigarette display, where he could not be seen, while a woman entered the store, bought a soda, then departed. Defendant began to drink from a bottle of beer. However, as more people entered the store, defendant would order them to empty their pockets and lie on the floor in the second aisle of the store, where they could not be seen from outside the store. Defendant told Henson to remain behind the counter to make it look like he was doing business as usual. At some point, defendant told Henson to wave the police on if they should drive through the store’s parking lot.

Henson further testified that defendant surprised between 15 and 20 customers in this manner in about 20 to 30 minutes. Defendant told Henson to open the store’s safe or he would start shooting the customers at the count of five. Henson replied that he was unable to open the safe, which had a time lock. Defendant appeared frustrated, then asked if his gun would be able to shoot the safe open; Henson stated that he did not know.

At one point, defendant went to the customers on the floor and threw handfuls of candy to them; defendant stuck a lollipop in the mouth of one customer and stuffed crackers in the mouth of another. Defendant also asked one customer if he had any money. The customer replied that he did not, upon which defendant kicked him in the leg and asked him why he was in the store. Defendant then returned to the front of the store and ordered Henson to lie facedown on the floor; Henson complied. Defendant told everyone to remain where they were for five minutes and that defendant had a “buddy” who would watch them. Henson heard the door close, then heard it reopen and heard defendant tell everyone that they were doing a good job. Henson again heard the door close.

Henson also testified that he had previously identified defendant from a series of photographs provided by the police. Henson further identified defendant’s gun and marked photographs of various places in the store mentioned in Henson’s testimony.

James Durham testified that he and his friend, Eric Anderson, were in the 7-11 store on December 7, 1985, when defendant entered the store. Durham stated that defendant pulled a gun out from under his jacket on his way to the counter and told them that “This is a stick-up.” Defendant asked Durham and Anderson if they had any money; they did not. Defendant then told Durham and Anderson to lie on the floor. Defendant then told them to get up while a woman entered and left the store. The two men were then told to lie on the floor again. Durham could hear parts of a conversation between Henson and defendant, including defendant telling Henson to open the safe or he would start “blowing away these people two by two.” More people were ordered to lie on the floor. Defendant told the customers to remain on the floor after he left and told them that they did not know what he looked like. According to Durham, one customer then stated that defendant was a short, black man (the record indicates that defendant is a tall Caucasian). Defendant left, returned to tell everyone they were doing a good job and left again.

Frank Ruffolo testified that on December 7, 1985, he was the owner of a Rosati’s Pizza restaurant located next to the 7-11 in Riverside. Ruffolo stated that he entered the 7-11 between 1 and 1:30 a.m. to get a cup of coffee after closing the restaurant. As Ruffolo passed by defendant on the way to the coffee machine, defendant pointed the gun at him, stating “Join the party, bro, get around the corner with the rest of them and empty your pockets.” Ruffolo could see four people on the floor in the aisle. Before joining them, Ruffolo produced about $250 and two checks made out to Rosati’s Pizza, which defendant took. Ruffolo characterized some of defendant’s tone of voice as “■witty.” Defendant did not stumble in the store.

Ruffolo then stated that at least four more people were ordered into the aisle, including at least one woman and Ruffolo’s father. Defendant did not take money from Ruffolo’s father. Defendant shouted at the sales clerk to open the safe; some of the women in the aisle were screaming, crying and telling Henson to open it. Defendant threatened to shoot the customers two at a time.

Ruffolo further testified that he had noticed blood on defendant’s pants leg. As defendant threatened to shoot the customers, defendant stated, “And if you think I’m kidding, I just got in a fight [-with an Hispanic] [a]nd I shot him twice and he shot me once in the leg and I’m not kidding, open the safe.” The record appears to indicate that defendant’s leg wound was self-inflicted. Ruffolo also corroborated the sequence of defendant’s departure.

Len Howard testified that he and Julie Dunn arrived at the 7-11 in Riverside shortly after 1 a.m. on December 7, 1985. As the two entered the store, Howard noticed the number of cars parked outside the seemingly empty store and asked the cashier, “Where’s the party?” Defendant, pointing a gun at the pair, told them to give him their money and lie down in an aisle behind the candy rack. Howard noticed five or six people already lying on the floor. Howard referred to the conversation between Henson and defendant regarding the safe, as well as the sequence of defendant’s departure. After two or three minutes, Howard got up, jumped over the counter and called the police. The police arrived a few minutes later.

Howard also testified to identifying defendant from police photographs and identified defendant’s gun. Dunn testified to the same basic version of events as Howard.

Brenda Pauley testified that when she entered the 7-11 store at the time in question, defendant told her “to come over and join the rest of them.” At first, Pauley proceeded to get a soda, thinking that defendant was just trying to “hassle” her. Defendant then pointed his gun at Pauley and told her to get down on the floor with the others. Pauley told defendant there was no room; defendant told Pauley to find room. While Pauley characterized defendant’s tone of voice as “casual” when she walked in, the tone became “higher, more demanding” during the discussion regarding the safe. Pauley further testified that when defendant told the customers that nobody knew what he looked like, one customer said, “All I heard of was you’re short.” Pauley testified that defendant is not short.

Riverside police officer Hoes testified that he and Officer Gordon, responding to a dispatch, arrived at the 7-11 at about 1:28 a.m. on December 7, 1985. Officer Hoes spoke to the persons in the store and obtained a description of the perpetrator. This description was relayed to Officer Gordon, who was searching the area around the store, and was then broadcast over the air. Officer Gordon found a bag containing cartons of Kool cigarettes and an open bottle of Old Style beer near the store.

Officer Markas of the Cicero police department testified that at about 1:35 a.m. on December 7, 1985, he observed defendant driving a gray Toyota left of the center lane on the 2500 block of Austin Avenue. Officer Markas curbed the vehicle about six blocks northeast at 57th Street. Officer Markas was backed up by Officer Serat, who was soon replaced by Officer Nudera. When Officer Markas asked defendant for his driver’s license, defendant sped away. Officer Markas called in a chase; Officers Markas and Nudera curbed the Toyota at the intersection of Cermak and Central, where the car had spun out. Several other squad cars arrived on the scene.

Lieutenant Zalas testified that he had been in the area of Officer Markas’ initial traffic stop when he observed the Toyota leaving the scene. Lieutenant Zalas had been the first car to reach the Toyota after it spun out at Cermak and Central. Lieutenant Zalas took control of the keys to the Toyota. Officers Markas and Nudera assisted Lieutenant Zalas in removing defendant from the Toyota. Lieutenant Zalas noticed the butt of a revolver sticking out of defendant’s belt. Later examination showed this to be a .38 caliber revolver with two live cartridges and one spent shell. Officer Nudera transported defendant to the station. When Lieutenant Zalas noticed the bloodstain on defendant’s pants at the station and discovered that defendant appeared to have suffered a bullet wound to the knee, defendant was taken to the nearest hospital.

Officer Nudera corroborated parts of the testimony of Officer Markas and Lieutenant Zalas. Officer Nudera also testified that the Toyota was taken to the station and inventoried. Officer Nudera discovered beer cans and an open carton of Kool cigarettes in the car. Defendant was questioned at the station and seemed coherent at the time. Officer Nudera also had defendant empty his pockets; defendant removed $464 and two checks made payable to Rosati’s Pizza.

Defendant proceeded, raising the defense theory of involuntary intoxication. Dr. James O’Donnell, a pharmacologist and pharmacist, testified as an expert. At the time of the trial, Dr. O’Donnell had been a teacher of physiology and pharmacology for about 12 years. He had also been a consultant to agencies such as the State Attorney General’s office, the Department of Public Health, the Cook County State’s Attorney’s office, the Chicago police department and the Cook County public defender’s office on subjects including alcohol dependency for about the same period of time.

Dr. O’Donnell stated that defendant had been a patient at the MacNeal Hospital Alcohol Treatment Center (MacNeal) from December 2 through 6, 1985. Dr. O’Donnell then testified that Valium is a minor tranquilizer which may be used in the treatment of alcohol dependency to prevent withdrawal symptoms and control seizures. Valium is given in high doses initially, when the alcohol is stopped, with the dosage being decreased gradually over a five- to seven-day period. A normal dosage of Valium for alcohol dependency treatment would be 10 to 20 milligrams four times a day. Valium has a long “half-life,” which means that the drug’s effects can linger for. hours after the final dose.

Dr. O’Donnell then testified that he had reviewed defendant’s medical records from MacNeal, which indicated that the dosage of Valium given to defendant had substantially increased, rather than decreased, from December 2 to December 6, 1985. In the 24 hours prior to defendant’s elopement from the hospital, defendant had been given 155 milligrams of Valium. Dr. O’Donnell stated that the largest dose he had seen for detoxification was 80 to 90 milligrams per 24 hours; he had seen 105 to 110 milligrams given to prevent seizures.

Dr. O’Donnell further testified that 155 milligrams of Valium would have an intoxicating effect on a person. Such a dose could cause a “paradoxical reaction,” meaning unexplained or unexpected reactions including rage, confusion, hyperexcitability, behavioral abnormalities and impaired cognitive and judgmental abilities. Dr. O’Donnell opined that defendant was involuntarily intoxicated at the time he left MacNeal. Defendant would have been drugged at the time of the offense and that condition would show up on a blood test.

On cross-examination, Dr. O’Donnell admitted that he did not know the legal definition of involuntary intoxication. The doctor did not mean that defendant took the Valium against his will. The doctor did not know if, at the time of the offense, defendant could appreciate the criminality of his conduct or if defendant was unable to conform his conduct to the requirements of the law.

In rebuttal, the State called Dr. Glen Nelson, who treated defendant at MacNeal from December 2 through December 6, 1985. During his residency training at MacNeal, Dr. Nelson took three months of courses on alcohol and drug dependency treatment, including the use of Valium to treat alcoholism. Dr. Nelson later became assistant medical director of MacNeal’s drug and alcohol treatment program from 1984 to 1987. He was also board certified by the American Medical Society on Alcoholism and Other Drug Dependencies in 1986. At the time of the trial, Dr. Nelson had treated between 800 and 1,000 cases of alcohol or drug dependency. On cross-examination, the court sustained the State’s objection to defense inquiries about Dr. Nelson’s technical knowledge of the effects of Valium. The doctor was deemed an expert by the trial court.

Dr. Nelson testified that defendant was never forced to take Valium while at MacNeal. Dr. Nelson had explained the medical effects of Valium to defendant both upon his admission and again the following day, because patients may be intoxicated upon their admission to MacNeal. Defendant did not respond to the Valium as Dr. Nelson had expected; the dosage was increased each day because defendant continued to have high blood pressure, tremors and restlessness. Dr. Nelson stated that there were three possible reasons for defendant’s unresponsiveness to treatment: defendant could have been ingesting unprescribed stimulants; defendant may not have been ingesting all of the doses; or defendant’s high tolerance to sedatives may have made him resistant. The record does not contain evidence regarding the first two possibilities; the trial court sustained the State’s objection to cross-examination concerning Dr. Nelson’s prior treatment of defendant as it might relate to a tolerance for sedatives.

Dr. Nelson further testified that he treated defendant on December 7, 1985, for the gunshot wound to defendant’s knee. The doctor did not prescribe Valium at this time. A urine screening for drugs taken at the time was negative for Valium, which indicates that the urine contained less than one microgram per milliliter. MacNeal performs urine tests instead of blood tests because the former are quicker and detect more types of drugs. Defendant was transferred to Cook County Hospital later that same day. Based on the urine test results, Dr. Nelson opined that defendant would not have been under the influence of Valium at 1:30 a.m. on December 7, 1985. The trial court sustained the State’s objection to cross-examination of Dr. Nelson concerning the results of a blood test conducted at Cook County Hospital.

The State also called Dr. Albert Stipes, who was employed by the Cook County Psychiatric Institute and Loyola Medical School, as an expert witness. After interviewing defendant and reviewing medical records and the police reports, Dr. Stipes diagnosed defendant as having a “mixed substance dependency” and a “mixed personality disorder.” Dr. Stipes also stated that the dosage of Valium given to defendant was not unusually high and that defendant’s withdrawal symptoms continued despite these doses. Dr. Stipes opined that based on the medical and police reports, defendant was not involuntarily intoxicated at the time of the offense; defendant was able to appreciate the criminality of his conduct and conform his conduct to the requirements of the law.

On cross-examination, Dr. Stipes admitted that he had no experience in detoxifying a person with Valium. Nevertheless, Dr. Stipes stated that current practice is to start with a smaller dose of Valium and work upwards in order to determine the patient’s tolerance for the drug. Dr. Stipes also agreed that an excessive dose of Valium could affect a person’s judgment and behavior. Dr. Stipes also reviewed the blood test conducted at Cook County Hospital, which indicated a measurable amount of benzodiazapine, a component of minor tranquilizers including Valium. However, on redirect, Dr. Stipes noted that this could be attributable to drugs aside from Valium and that the amount measured would have had little effect on defendant.

After the close of evidence, the trial court sustained the State’s objection to tendering an instruction on involuntary intoxication. The jury found defendant guilty of armed robbery; defendant later pleaded guilty to the charge of unlawful use of a weapon. Defendant now appeals.

I

Defendant first argues that the trial court denied him due process of law by refusing to instruct the jury on the affirmative defense of involuntary intoxication set forth in section 6 — 3 of the Criminal Code of 1961, which provides in relevant part that:

“A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition either:
* * *
(b) Is involuntarily produced and deprives him of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” Ill. Rev. Stat. 1985, ch. 38, par. 6 — 3(b).

On appeal, defendant argues that a patient’s unexpected intoxication resulting from medication prescribed and dispensed in a hospital is involuntarily produced. Defendant contends that his reasonable reliance on professional medical treatment renders him morally blameless for the offense at issue in this case. There do not appear to be any Illinois cases directly addressing the issue of whether intoxication of the type alleged here is “involuntarily produced” within the meaning of the statute.

However, we need not reach that issue in this case. Defendant is entitled to a jury instruction regarding an affirmative defense only when he has presented “slight” evidence on each element of that defense. (People v. Wielgos (1991), 142 Ill. 2d 133, 136, 568 N.E.2d 861, 862-63.) In this case, the record clearly demonstrates that defendant failed to present any evidence that his treatment deprived him of substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Dr. O’Donnell, defendant’s expert witness, testified on cross-examination that he did not know the legal definition of involuntary intoxication. Dr. O’Donnell also testified that he did not know if, at the time of the offense, defendant could appreciate the criminality of his conduct or if defendant was unable to conform his conduct to the requirements of the law. Thus, defendant presented no evidence on these elements of the defense. Nor could defendant have relied on evidence introduced by the State; according to Dr. Stipes, one of the State’s experts, defendant was able to appreciate the criminality of his conduct and conform his conduct to the requirements of the law. In sum, defendant has failed to show from the record that he was entitled to a jury instruction on the defense of involuntary intoxication.

II

Defendant’s second contention on appeal is that the trial court erred in ruling that Drs. Nelson and Stipes were expert witnesses. Defendant argues that so ruling improperly bolstered Dr. Nelson’s credibility because he was not an expert at the time he treated defendant. Defendant also argues that Dr. Stipes was not an expert in any field which would allow him to comment on whether defendant was involuntarily intoxicated.

Defendant is required to raise these issues by objection at trial and in his written post-trial motion to preserve the issue for appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Here, defendant failed to object to the court’s determinations that Drs. Nelson and Stipes were experts in his written post-trial motion; thus, the arguments are waived.

III

Defendant’s third contention is that the trial court erred in refusing to allow cross-examination of Dr. Nelson on the issue of defendant’s tolerance for Valium and on the blood test conducted at Cook County Hospital. Defendant argues that the record of Dr. Nelson’s prior treatment of defendant does not support Dr. Nelson’s opinion at trial that defendant had a high tolerance for Valium. Defendant also argues that the results of the blood test could have been used to impeach Dr. Nelson’s opinion that defendant was not intoxicated at the time of the offense.

The record indicates that defendant failed to object to the rulings preventing cross-examination on defendant’s tolerance for Valium. Nor did defendant make an offer of proof to the trial court in order to show what testimony defendant expected to elicit. Thus, the issue is waived on appeal. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130; see also People v. Cobb (1989), 186 Ill. App. 3d 898, 905, 542 N.E.2d 1171, 1176 (offer of proof is not required unless testimony sought is obviously relevant and material).) Moreover, even if defendant had objected at trial, no amount of impeachment on the issue of defendant’s tolerance would have changed the verdict in this case because there was no evidence that defendant’s treatment deprived him of the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

IV

Defendant next raises several allegations that he was denied effective assistance of counsel guaranteed by the sixth amendment to the United States Constitution. Typically, to prove ineffective assistance of counsel, defendant must prove both prongs of the test set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) The requirements are that the errors must be so great that counsel is not acting as “counsel” as guaranteed by the sixth amendment and defendant was deprived of a fair trial as a result. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) Counsel’s competence is to be determined from the totality of counsel’s conduct, not isolated incidents, and a reviewing court will not extend its inquiry into areas involving the exercise of judgment, discretion, trial tactics or strategy. People v. Thurman (1988), 169 Ill. App. 3d 996, 1005, 523 N.E.2d 1184, 1190.

In this case, defendant primarily argues that the State’s case was not subjected to meaningful adversarial testing, thus depriving him of the effective assistance of counsel guaranteed by the sixth amendment to the United States Constitution. (See United States v. Cronic (1984), 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039.) Defendant particularly relies upon People v. Robinson (1979), 70 Ill. App. 3d 24, 387 N.E.2d 1114, in which defense counsel argued the defense of dwelling in a murder case, despite the fact that the trial judge refused to instruct the jury on that defense.

Robinson is distinguishable. In that case, the court remarked that defendant’s testimony indicated that he admitted shooting the victim, but was obviously relying on the justifiable use of force as a defense. (Robinson, 70 Ill. App. 3d at 27, 387 N.E.2d at 1116.) In this case, defendant has failed to show some defense other than involuntary intoxication was available to him. Moreover, the tone of the entire closing argument in Robinson was characterized as “offensive” by this court (Robinson, 70 Ill. App. 3d at 28, 387 N.E.2d at 1117); here there is no such claim.

Defendant also argues that he was denied effective assistance of counsel because denial of the defense instruction left defendant with an admission of guilt and no defense. (See People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513.) In Hattery, however, defense counsel told the jury that they would find the defendant guilty, supposedly as a strategic move to avoid the death penalty. Where defense counsel does not confess his client’s guilt, Hattery will not compel a reversal. See People v. Emerson (1987), 122 Ill. 2d 411, 430, 522 N.E.2d 1109, 1116.

In this case, the record indicates that defense counsel continued to pursue the involuntary intoxication defense and attack the strength of the State’s case during closing arguments, concluding that the jury would find defendant not guilty. Defendant has not pointed to any other course of action which could have been taken by his attorney. A decision to rely on one defense theory to the exclusion of others is generally a matter of trial tactics. (People v. Gallardo (1983), 112 Ill. App. 3d 764, 770, 445 N.E.2d 1213, 1218.) Defense counsel is not required by the sixth amendment to manufacture a defense which does not exist. (People v. Holman (1983), 115 Ill. App. 3d 60, 65, 450 N.E.2d 432, 435.) Thus, defense counsel’s decision to argue the defense, despite the trial court’s refusal to instruct the jury on it, was not ineffective assistance of counsel.

Defendant further argues that he was deprived of effective assistance of counsel when his attorney approved a plea agreement on the related offense of unlawful use of a weapon (UUW). In particular, defendant argues that he was not advised of his rights before entering his plea, as required by law. See 134 Ill. 2d R. 402; see also Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (to sustain a conviction, the record must indicate that the defendant’s guilty plea was entered into knowingly and voluntarily).

The State does not dispute that defendant was not informed of his rights before entering the guilty plea. In this case, however, the plea served the strategic purpose of obtaining a concurrent, rather than consecutive, sentence. Unlike Hattery, upon which defendant relies, the defendant here was already found guilty of the armed robbery charge; thus, guilt on the related UUW charge may have been conceded to show that defendant was accepting responsibility for his acts and thereby obtain a concurrent sentence. Accordingly, defendant has failed to demonstrate that reversal is mandated in this case.

y

Finally, defendant contends that his sentence is excessive because his acts were due in part to an adverse reaction to prescribed drugs. In sentencing a defendant, the trial court may consider the gravity and circumstances of the offense, as well as defendant’s mental capacity, age, demeanor and credibility. (E.g., People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) Furthermore, the trial court must balance the objectives of protecting society and rehabilitating the defendant. (See People v. Harris (1989), 187 Ill. App. 3d 832, 844, 543 N.E.2d 859, 866.) Once struck, a reviewing court will hesitate to upset this balance, especially where the sentence falls within the statutory limitation. People v. Lambrechts (1977), 69 Ill. 2d 544, 559, 372 N.E.2d 641, 649.

The record in this case indicates that defendant was sentenced to 14 years’ imprisonment, which is well within the statutory guidelines for a Class X felony such as armed robbery. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(3).) The record further indicates that the trial court took defendant’s substance abuse problem into account in noting defendant’s need for rehabilitation. The record further indicates that the trial court took into account the seriousness of the offense and defendant’s prior history of criminal activity, including several prior convictions. Given this record, defendant has failed to demonstrate that his sentence is excessive.

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

Affirmed.

BUCKLEY, P.J., and MANNING, J., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    AUGUST ELKE, Plaintiff-Appellee, v. ZIMMER, INC., et al., Defendants-Appellants.
    First District (1st Division)
    No. 1—91—2628
    Opinion filed June 29, 1992.

      Coffield, Ungaretti & Harris, of Chicago (J. Timothy Eaton and Frank E. Pasquesi, of counsel), for appellants.
    Patrick Mahoney & Associates, P.C., of Chicago (Patrick E. Mahoney and Thomas A. Goldrick, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

In this appeal, we have been asked to answer the following certified question:

“Whether section 13 — 213 or section 13 — 212 of the Code of Civil Procedure applies to a cause of action against a hospital that distributes or sells a defective hip prosthesis which was in the same condition as originally designed, packaged and shipped by co-defendant, manufacturer Zimmer Inc.”

On April 30, 1991, plaintiff, August Elke, filed a four-count complaint against defendants Mercy Hospital and Zimmer Manufacturing Company. Elke sought to recover damages for personal injuries he sustained due to the failure of a hip prosthesis which was inserted into him at Mercy Hospital on October 27, 1980. Stating that he first learned of his injuries from the prosthesis failure on May 3, 1990, Elke, in counts I and IV of the complaint, alleged a products liability action against both Mercy Hospital and Zimmer. Counts II and III contained allegations of breach of both express and implied warranties against Zimmer and Mercy Hospital. Elke further charged that the prosthesis was sold to him by Mercy Hospital, but was manufactured, designed, and distributed by Zimmer.

Mercy Hospital filed, and the circuit court subsequently denied, its section 2 — 619 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) motion to dismiss the complaint based on the four-year health care providers’ statute of repose contained in section 13 — 212(a) of the Code of Civil Procedure (Code) (section 13 — 212(a)) (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212(a)). The court ruled that the action was governed by the 10-year product liability statute of repose contained in section 13 — 213 of the Code (section 13 — 213) (Ill. Rev. Stat. 1989, ch. 110, par. 13— 213), which the trial judge characterized as an exception to the provisions in section 13 — 212. The trial judge certified the issue for review by this court (134 Ill. 2d R. 308), and Mercy Hospital now appeals.

Mercy Hospital argues that although the circuit court determined that Elke’s action against it was a product liability action rather than a medical malpractice action, it erroneously applied the limitations provision in section 13 — 213, pertaining to product liability, rather than the health care providers’ statute of repose found in section 13— 212(a).

Section 13 — 212(a) of the Code provides, in pertinent part, that

“[ejxcept as provided in Section 13 — 215 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.” (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212(a).)

Section 13 — 213 provides that no product liability action shall be commenced except within the applicable limitations period and, relevant here, within 10 years from the date of the first “sale, lease or delivery of possession to its initial user.” Ill. Rev. Stat. 1989, ch. 110, par. 13—213(b).

The issue presented is one of first impression. However, in Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 557 N.E.2d 873, our supreme court, in a somewhat analogous situation, addressed section 13 — 212(a) and its effect on contribution actions. There, the court held that section 13 — 212(a) governs contribution actions based on medical malpractice brought from underlying complaints which also allege medical malpractice. (Hayes, 136 Ill. 2d at 460.) Specifically, the court ruled that the phrase “action for damages” (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212(a)) “bars any action after the period of repose seeking damages against a physician or other enumerated health-care provider for injury or death arising out of patient care, whether at law or in equity.” (Emphasis added.) (Hayes, 136 Ill. 2d at 456.) This holding was based upon the conclusion that the inclusion of the language “or otherwise” (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212(a)) indicated that the legislature intended the term to be “all-inclusive.” (Hayes, 136 Ill. 2d at 458-59.) The language “demonstrates the General Assembly’s desire at the time it originally enacted the statute to limit a physician’s exposure to liability for damages for injury or death arising out of patient care under all theories of liability.” (Emphasis added.) (Hayes, 136 Ill. 2d at 459.) This holding was reaffirmed several months later in Vogt v. Corbett (1990), 138 Ill. 2d 482, 563 N.E.2d 447, and recently was iterated in Antunes v. Sookhakitch (1992), 146 Ill. 2d 477, 588 N.E.2d 1111. Under this analysis, Elke’s product liability action falls within the ambit of section 13 — 212(a).

Elke maintains that the circuit court correctly found section 13— 213 to be an exception to section 13 — 212(a). Where a court is asked to interpret a disputed statutory provision, it must ascertain and give effect to the intent and meaning of the legislation by first examining the language of the statute. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 167.) Unambiguous terms, when not specifically defined, must be given their plain and ordinary meaning. (People v. Moore (1978), 69 Ill. 2d 520, 372 N.E.2d 666.) Upon review of statutory provisions, courts should refrain from adding words into a legislative enactment when the statute otherwise presents a cogent and justifiable legislative scheme. Hayes, 136 Ill. 2d at 456.

Here, the statute plainly states that “[ejxcept as provided in Section 13 — 215 of this Act [exception for fraudulent concealment], no action for damages *** whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought.” (Ill. Rev. Stat. 1989, ch. 110, par. 13—212(a).) Our supreme court recently interpreted a similar statutory provision, “[a]ctions based upon tort, contract or otherwise” found in section 13 — 214 (Ill. Rev. Stat. 1989, ch. 110, par. 13—214), and defined “tort” as

“ ‘[a] private or civil wrong or injury, other than breach of contract, for which the court will provide a remedy in the form of an action for damages.’ ” (Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 195, quoting Black’s Law Dictionary 1335 (5th ed. 1979).)

We note that a product liability action is an action for damages based upon tort law (see Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182; Restatement (Second) of Torts §402A (1965)) and, as such, falls within the statutory language of section 13 — 212(a). Moreover, the legislature provided the fraudulent concealment exception in addition to an exception for legal disability (Ill. Rev. Stat. 1989, ch. 110, par. 13—212(c)) to the provision. The legislature, presumably, could have added another exception for product liability actions if it so intended. We, therefore, must decline Elke’s invitation to insert into the statute the exception urged here. See Hayes, 136 Ill. 2d at 456.

Elke also argues that the repose limitations set out for product liability actions in section 13 — 213 actions supersede the statute of repose contained in section 13 — 212(a). However, in Hayes, the supreme court rejected a similar argument, refusing to find that the statute of limitations for contribution actions contained in section 13— 204 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 13—204) supersedes section 13 — 212(a)’s statute of repose. (Hayes, 136 Ill. 2d at 459.) Accordingly, we find that the repose period contained in section 13 — 213 does not supersede that of section 13 — 212(a).

Finally, Elke points to Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, 266 N.E.2d 897, and Dubin v. Michael Reese Hospital & Medical Center (1979), 74 Ill. App. 3d 932, 393 N.E.2d 588, rev’d (1980), 83 Ill. 2d 277, 415 N.E.2d 350, as support for applying section 13 — 213 to the present case. Neither case, however, addresses the question presented here, as both concern the propriety of bringing a product liability action against a hospital for products such as blood and X rays.

For the foregoing reasons, the question certified by the circuit court is answered: Section 13 — 212 applies to a hospital which distributes or sells a defective hip prosthesis under the facts presented here. The judgment of the circuit court, therefore, must be reversed and the cause remanded for further proceedings.

Certified question answered; judgment reversed, and cause remanded.

Judgment reversed and cause remanded.

BUCKLEY, P.J., and CAMPBELL, J., concur.

      Counts II and III of the complaint were dismissed by the circuit court on June 24,1991. The propriety of that dismissal is not at issue in the present appeal.


author: JUSTICE SCARIANO

text:
    UNIVERSITY OF CHICAGO HOSPITALS, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, Defendant-Appellee.
    First District (2nd Division)
    No. 1—90—1776
    Opinion filed June 30, 1992.
    Knepper & Moga, P.C., of Chicago (Margaret McCaskill Visek, of counsel), for appellant.
    Keck, Mahin & Cate, of Chicago (Robert E. Arroyo and Robert A. Roth, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

University of Chicago Hospitals (hospital) appeals from the circuit court’s dismissal of its single-count complaint filed against United Parcel Service (UPS), in which it sought to recover damages incurred as the result of a negligent misrepresentation alleged to have been made by a UPS employee regarding the health insurance coverage of Sylvia Chodacki (Sylvia), the spouse of a retired UPS employee.

In October of 1988, shortly after Sylvia’s husband had executed an assignment of benefits in favor of the hospital, UPS, through its employee, Esther Brown, represented to an employee of the hospital that Sylvia had $350,000 in health insurance benefits available to her through UPS’ Retirees’ Insurance Program. In reliance upon the information furnished by UPS, the hospital rendered Sylvia hospital and medical services amounting to $318,007.30, but when the hospital sought payment, UPS denied the claim for the reason that the extent of the benefits provided under its insurance program was only $50,000, and not $350,000, as was initially represented by UPS’ employee. After deducting all credits and setoffs, the hospital was still due $266,884.82.

On January 4, 1990, UPS filed a section 2 — 615 motion (111. Rev. Stat. 1987, ch. 110, par. 2 — 615) to dismiss the hospital’s action, claiming (1) that the complaint failed to state a cause of action for negligent misrepresentation because it failed to allege that UPS was in the business of supplying information for the guidance of others; (2) that the complaint lacked specificity because it did not indicate the person who made the misrepresentation; and (3) that the complaint was not properly verified. After the hospital obtained leave to file an amended complaint, UPS was allowed to have its original section 2 — 615 motion stand against the amended complaint as well. During the hearing on that motion, the hospital argued to the trial court that UPS was involved in two businesses — (1) the delivery of packages and (2) the providing of health insurance coverage to its retired employees and their dependents. In essence, the hospital contended before the court that UPS is self-insured with respect to the health benefits it provides for its retirees. The trial court dismissed the hospital’s cause of action with prejudice but without giving grounds therefor.

The hospital then filed a motion to reconsider and to vacate the order, on the grounds that The hospital asked the trial court, alternatively, for leave to file a second amended complaint which it had attached to its motion. At the hearing on the motion to reconsider, the hospital argued that it was unaware of the reasons as to why the trial court had dismissed its cause of action with prejudice, and that it had been disadvantaged in attempting to cure any defects in its pleading since the trial court never indicated to it that its pleading was defective. Nonetheless, the trial court denied the hospital’s motion to reconsider and reaffirmed its previous order “based upon a reading of the cases cited in UPS’ motion to dismiss as well as the cases cited in University of Chicago Hospitals’ briefs and oral argument.” The hospital filed a timely notice of appeal.

“[1] the trial court erred in its application of existing law if it dismissed plaintiff’s case for failure to state a cause of action; [2] the trial court erred in its application of existing law if it dismissed plaintiff’s complaint for lacking specificity; [3] the trial court erred in its application of existing law if it dismissed plaintiff’s amended complaint for failing to be properly verified; and [4] even if plaintiff failed to state a cause of action, failed to plead with specificity or failed to properly verify its complaint, the trial court erred in its application of existing law by dismissing plaintiff’s complaint with prejudice.”

The hospital contends that the trial court’s dismissal of its cause of action with prejudice, without first informing it of the reasons as to why the court believed the amended complaint to be defective, and the judge’s denying it the opportunity to amend its complaint at least once after he had ruled on the motion to dismiss, is an abuse of discretion for the reason that amendments proposed in the early stages of litigation are normally granted as a matter of course. The hospital argues that only when certain circumstances exist is it within the discretion of a trial court to deny a plaintiff the right to amend its pleadings. Such circumstances are: (1) repeated, unsuccessful attempts to state a cause of action after a pleading has been stricken (Ledford v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co. (1939), 298 Ill. App. 298); (2) filing an amendment without the necessary leave of court (Reinhardt v. Security Insurance Co. (1936), 287 Ill. App. 320); and (3) where a motion to amend was not timely made (Flannery v. Marathon Oil Co. (1979), 75 Ill. App. 3d 690).

The hospital posits that none of these circumstances exists here. It claims that inasmuch as it had only one opportunity to amend its complaint, a voluntary action which it took one month prior to the trial court’s determination that the amended complaint was defective, the hospital could not have known at that time whether the trial court believed it had stated a valid cause of action. Thus, the hospital concludes, the trial court’s dismissal of the cause of action with prejudice constituted an abuse of discretion.

In support of its position, the hospital points out that there is an absence of Illinois authority which supports the dismissal of an action with prejudice in which the plaintiff had “at least two or more opportunities to amend its pleadings.” (See B.C. v. J.C. Penney Co. (1990), 205 Ill. App. 3d 5, appeal denied (1991), 136 Ill. 2d 541; Thomas v. Davenport (1990), 196 Ill. App. 3d 1042.) The cases it cites, however, give no holding nor afford any reasoning on this point; rather, the hospital appears to draw that conclusion only from the results reached in those cases. Moreover, the hospital argues, Illinois courts have held that rulings on motions to dismiss generally do not dispose of actions, but allow plaintiffs an opportunity to amend their complaints unless it becomes apparent that there is no set of facts that could be pleaded which would entitle a plaintiff to recover. Fanning v. Lemay (1966), 78 Ill. App. 2d 166, 172, reversed on other grounds (1967), 38 Ill. 2d 209.

In paragraph 5 of its proposed second amended complaint, the hospital alleges that in addition to being in the business of delivering packages, “the defendant is in the business of providing information for the guidance of others.” The hospital further asserts that this statement is supported by factual allegations that UPS provided information to Sylvia and to the hospital.

UPS denies, however, that the hospital’s proposed second amended complaint pleads facts that would show that UPS is in the business of supplying information. In paragraph 4 thereof the hospital alleges that “UPS provided information to its employees *** relative to the extent and type of insurance coverage which UPS provided.” In paragraph 6, the hospital alleges that “UPS provided its employees with a booklet explaining how the ‘Health & Welfare Plan is Administered.’ ” Neither paragraph, UPS points out, contains any factual allegation indicating that it was UPS’ business to supply such information.

UPS also argues that the hospital has had sufficient opportunities to plead a cause of action, and it cites numerous cases in which appellate courts have affirmed the dismissal of a complaint without allowing the plaintiff at least two opportunities to amend. See, e.g., Deasey v. City of Chicago (1952), 412 Ill. 151; Century Universal Enterprises, Inc. v. Triana Development Corp. (1987), 158 Ill. App. 3d 182.

Based on our conclusion below, however, we need not address this portion of plaintiff’s appeal, for even if the hospital had pleaded a factually sufficient complaint, it nonetheless could not have set forth a legally recognized claim. It is now the law in Illinois that purely economic loss will not support a cause of action sounding in negligent misrepresentation. (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69.) Moorman recognizes an exception to this rule, however, “where one who is in the business of supplying information for the guidance of others in their business transactions makes negligent representations.” Moorman, 91 Ill. 2d at 89.

Although neither of the parties cites any Illinois authority as to whether or not insurance carriers are in the business of supplying information, the District Court for the Northern District of Illinois provides a case on point. In International Surplus Lines Insurance Co. v. Fireman’s Fund Insurance Co. (N.D. Ill. Aug. 17, 1989), No. 88 — C—320 (memorandum opinion), the defendant maintained that the plaintiff’s claim of negligent misrepresentation “must be dismissed because it fails to allege, and cannot allege, that [the defendant] was in the business of supplying information.” (Fireman’s Fund, slip op. at __) The plaintiff retorted that the defendant’s “business — indeed, the raison d’etre of insurance — is supplying and receiving information.” (Fireman’s Fund, slip op. at__) The court found this argument to be unconvincing, holding that the business of an insurance company is

“accepting a risk in return for money. [The defendant] is not ‘in the business’ of supplying information for the guidance of others. To hold otherwise would render every commercial enterprise which enters into a contract [with] a company in the business of supplying information, thereby opening the flood-gates for negligent misrepresentation litigation. Accordingly, because [the plaintiff] has failed to allege and cannot allege that [the defendant] is in the business of supplying information, Count II must be dismissed.” (Fireman’s Fund, slip op. at__)

While the hospital would contend that International Surplus Lines is not binding on this court, we find it to be persuasive authority.

Accordingly, we uphold the trial court’s granting of UPS’ motion to dismiss the first amended complaint and denying the motion to reconsider. We also affirm the court’s denial of the hospital’s alternative motion for leave to file a second amended complaint.

Affirmed.

DiVITO and McCORMICK, JJ., concur.


author: JUSTICE DiVITO

text:
    JOSEPH L. BATTAGLIA, Plaintiff-Appellee, v. FRANK P. BATTAGLIA, Defendant-Appellant.
    First District (2nd Division)
    No. 1—92—0445
    Opinion filed June 30, 1992.

      William J. Stevens and DeWolfe, Poynton & Stevens, both of Chicago (John C. DeWolfe, Jr., of counsel), for appellant.
    Grippo & Elden, of Chicago (Theodore W. Grippo, Irving C. Faber, and Eric D. Brandfonbrener, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Joseph L. Battaglia brought suit for injunctive relief against his brother and co-owner of Battaglia Holding, Inc., Frank P. Battaglia, alleging breach of fiduciary duty, breach of a shareholders agreement, breach of an oral agreement, and fraud, resulting from Frank’s purchase of 3,000 shares of Battaglia Holding from their brother Anthony Battaglia. Following hearings, the circuit court issued a preliminary injunction, directing Frank, among other things, to hold in constructive trust the shares he acquired from Anthony. Approximately one year after the issuance of the preliminary injunction, Frank filed a motion to dissolve it, asserting that a recently discovered document disposed of all the grounds upon which the injunction was based. The circuit court denied Frank’s motion; Frank appeals the court’s denial, contending that the circuit court abused its discretion in denying his motion to dissolve the preliminary injunction.

Beginning in the late 1930’s, Joseph, Frank, and Anthony Battaglia worked for their father, August Battaglia, in the family’s wholesale produce business. After their father’s death in 1950, the three brothers incorporated the family business under the name August Battaglia Co., which has, since that time, expanded into new areas related to the original wholesale business, including food service and restaurant supply (Battaglia Distributing Corporation), nut and food processing (August Battaglia Processing Company, Inc., and Virginia Peanut Processors Company, Inc.), and various other processed food businesses (Beatrice Caramel Apple Company, Inc., and Growers Prepackage Company). Sometime in 1972, the three brothers set up Battaglia Holding, an Illinois corporation, for the purpose of holding the stock of the several Battaglia-affiliated companies. As equal owners, Frank, Joseph, and Anthony each owned 3,000 shares of Battaglia Holding stock. In addition, each of the three brothers served as a director and officer of Battaglia Holding.

On April 30, 1973, the three brothers and Battaglia Holding entered into an agreement (Buy/Sell Agreement) in order to ensure that the family business would continue to be owned exclusively by Battaglia family members and in order to provide a death benefit to each of the three brothers’ wives and children. The Buy/Sell Agreement provided in pertinent part:

“1. So long as this Agreement shall remain in effect, none of the individual parties hereto shall sell, assign, transfer, mortgage, alienate, hypothecate or in any way encumber or dispose of the shares of stock of the corporation which he now owns or which he hereafter acquires, without the written consent of the corporation and of all the then surviving individual parties ***.
2. Upon the death of any of the three officers of the corporation, *** all of the shares hereafter acquired by that officer *** shall be sold to and purchased by the Corporation *** and any balance of such shares *** shall be sold to and purchased by the [surviving brothers], share and share alike ***.”

In 1979, by which time the sons of each of the Battaglia brothers had become involved in the family business, the three brothers realized that the Buy/Sell Agreement would prevent their sons from inheriting any ownership interest in Battaglia Holding. Consequently, at an October 1, 1979, directors’ meeting, the three brothers agreed to rescind the Buy/Sell Agreement. According to the minutes of the director’s meeting,

“[Frank Battaglia] stated that the majority stockholders of the company had a buy-sell agreement between them which provided that in the event of the death of one of them, the stock of the deceased stockholder would be offered to the company for redemption to the extent legally possible and any other balance of the stock would be offered to the remaining stockholders. He said he felt that such an agreement would no longer be in the best interests of the company as it would deprive the deceased stockholders’ sons of an ownership interest in the corporation and would eliminate some of the incentive for them to put their best efforts into making the company as large a success as possible.
Joseph Battaglia stated that he was in agreement with Frank Battaglia. He made a motion that the corporation request the majority stockholders to rescind the agreement and to record the revision of the agreement by the corporation. The motion was seconded, voted upon and unanimously passed.”

On January 23, 1990, Frank negotiated a stock purchase agreement with Anthony, whereby Frank personally agreed to purchase all of the shares of Battaglia Holding and affiliated companies owned by Anthony and his wife. Under the stock purchase agreement, Frank was to pay Anthony $25,000 of the approximately $1.5 million purchase price, with the balance to be paid off in weekly installments of $1,500, interest-free for the first eight years.

As a result of Frank’s purchase of Anthony’s stock, on August 13, 1990, Joseph brought suit for injunctive relief against Frank, alleging that Frank, in acquiring Anthony’s shares, had breached his fiduciary duty to Joseph, as a co-owner of a close corporation; had breached the Buy/Sell Agreement; had breached an oral contract with Joseph that both Joseph and Frank would equally purchase Anthony’s shares; and had committed common law fraud. Joseph sought an injunction providing that the shares of Battaglia Holding stock formerly owned by Anthony be turned over to Battaglia Holding for deposit into the company’s treasury, with the company assuming the obligation to pay Anthony; and that Frank and Joseph be deemed equal shareholders in, and the only directors of, Battaglia Holding.

Shortly after Joseph filed suit, Frank called a special meeting of the board of directors of Battaglia Holding. Because Joseph feared that Frank, whom he believed owned two-thirds of Battaglia Holding, would use the special meeting to curtail his rights as a director, he sought an order directing Frank to hold the shares acquired from Anthony in constructive trust on behalf of Battaglia Holding and to refrain from holding a special directors’ meeting.

On August 22, 1990, the circuit court entered an order temporarily restraining Frank from holding any meeting of shareholders or directors of Battaglia Holding pending a hearing on the matter. On August 31, 1990, a hearing was held to determine whether a temporary injunction should issue.

The testimony at that hearing established that, although the brothers each supervised and ran separate companies, any decision affecting the Battaglia-affiliated companies was made by mutual consent of the three brothers, with each brother having one “vote.” Likewise, each brother received the same salary regardless of his particular company’s profits or losses. Moreover, any profits generated by the Battaglia-affiliated companies was funneled into Battaglia Holding rather than paid out as dividends.

According to Joseph, the three brothers ran Battaglia Holding as “a team,” and, prior to 1990, always managed to agree on the direction of the company. In 1973, the brothers had agreed that, in order to maintain a family business, they should enforce the Buy/Sell Agreement. In 1979, when it became apparent that that agreement would prevent their sons from inheriting the business, the brothers decided to rescind that portion of the agreement restricting death benefit provisions; the section of the agreement restricting transfers of Battaglia Holding stock with the consent of each brother, however, remained in force.

Joseph also testified that in 1989, he spoke with Frank about the possibility of the two of them buying Anthony’s shares on behalf of Battaglia Holding. Shortly before Christmas 1989, Joseph and Frank agreed that they would buy Anthony’s stock for the fair market price to be later determined. Joseph left for Florida immediately after Christmas. Near the end of January, while in Florida, Joseph learned of the stock transaction between Frank and Anthony, and he objected strongly to Frank’s actions, telling Frank, “[tjhat’s not right.”

Joseph further testified that, after he bought the shares, Frank took over the August Battaglia Processing Company, which Joseph had managed for many years and which Joseph’s son August was managing at the time. In addition, Frank attempted to fire Joseph and also replaced August with his own son.

Although Frank did not deny buying Anthony’s stock for himself, he testified that such an action was necessary to save the company from Joseph’s and his son’s mismanagement. According to Frank, under Joseph’s and August’s management, Battaglia Processing Company had developed severe financial problems and had posted large losses. He further testified that Joseph, without either his or Anthony’s consent, had made numerous company decisions which the two brothers reluctantly ratified.

Frank further testified that in 1989, because of Anthony’s illness, he and Anthony agreed to the sale of Anthony’s shares to him. At no time, however, did Frank agree with Joseph that the two brothers would buy Anthony’s stock; rather, a day or two before he bought Anthony’s stock, Frank informed Joseph that he was buying the shares “to let [Joseph] find out before he found out from anybody else.” Furthermore, Frank did not believe that the sale was prohibited by the Buy/Sell Agreement because that entire agreement had been “washed out” at the subsequent 1979 directors’ meeting.

According to Anthony, he decided to sell his stock to Frank because he “felt that to save the company [he] had to sell the stock to [his] brother Frank so he could take charge and straighten out the mess that [his] brother Joe and his two boys put it into.” However, Anthony admitted that his only knowledge of Joseph’s mismanagement of the company came from what Frank had told him; Anthony never spoke with Joseph or his sons about their management of the company. Anthony explained that he had been ill and “on his back” for 14 years and, thus, was unable to participate in the company to the same extent as his brothers; however, he was kept informed by his sons and Frank as to what was happening in the company. Anthony believed the sale of stock to Frank was proper because, as far as he was concerned, he was “at liberty to sell” the shares to whomever he wanted.

In response to Frank’s allegations that Joseph mismanaged the company, Joseph’s son August testified that the business was cyclical and typically posted losses at certain times of the year while showing large profits at other times. August further testified that between October 1989 and January 1990, prior to his ouster by Frank, the company began a profitable period. Thus, the losses shown by the company were not attributable to his alleged mismanagement of the company nor were the profits a direct result of Frank’s later control of the company.

After hearing all the evidence, the circuit court found that Battaglia Holding was a closely held corporation and that it was operated as a partnership among equals. Thus, the court found that, given Frank’s position as a director and shareholder of a close corporation, he owed Joseph a fiduciary duty. The court further found that, in acquiring Anthony’s stock without permission from either Joseph or Battaglia Holding, Frank “took opportunity as a director without offering that opportunity to the corporation [to which] he had a fiduciary duty.” The court also found that Joseph’s expectation of continued equality was protected by the 1989 oral agreement in which he and Frank agreed to buy Anthony’s shares on behalf of Battaglia Holding, thereby preserving their equal status. Likewise, the court found that Joseph had a right to continued equality based on the first section of the Buy/Sell Agreement, which prohibited one brother’s transfer of Battaglia Holding stock without the others’ consent.

In response to Frank’s argument that his purchase of Anthony’s stock did not change Joseph’s position as a director, the circuit court stated:

“It’s pure, legal sophistry to argue that the sale of Anthony’s stock to Frank, rather than to the company, has not changed Joseph’s interest.
Prior to that sale, [Joseph] was an equal shareholder with each of his brothers. Subsequent to that purported sale, [Joseph] is a minority shareholder to the only remaining brother in the company.
To suggest that that’s not a significant change is to ignore the realities of stock ownership in a corporation.
This stock transfer has changed Joseph’s status. The status has changed from a participant in management affairs to either a rubber stamp for Frank or meaningless dissent vote against Frank.”

Accordingly, in September 1990, the court ruled that Joseph had a certain and clearly ascertainable right to his continued ownership and control of Battaglia Holding at a level equal to Frank’s, that Joseph would suffer irreparable injury if an injunction did not issue, that Joseph did not have an adequate legal remedy, and that Joseph showed a likelihood of succeeding on the merits of his complaint. On September 19, 1990, a preliminary injunction was entered directing Frank to hold the shares of Battaglia Holding acquired from Anthony in constructive trust on behalf of Battaglia Holding; designating Frank and Joseph equal shareholders of Battaglia Holding; and prohibiting any meeting of directors of Battaglia Holding to be called or held. Frank’s immediate motion for reconsideration was denied by the court.

On September 16, 1991, Frank moved to dissolve the preliminary injunction, contending that a document discovered after Anthony’s death disposed of all the grounds on which the injunction was based. That document, dated November 16, 1979, and signed by all three brothers and Battaglia Holding, provided:

“THIS AGREEMENT MADE THIS 16TH DAY OF NOVEMBER 1979 BETWEEN AUGUST BATTAGLIA HOLDING CO., LTD., ANTHONY J. BATTAGLIA, FRANK P. BATTAGLIA AND JOSEPH L. BATTAGLIA.
IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO THAT THE BUY AND SELL AGREEMENT ENTERED INTO ON THE 30TH DAY OF APRIL 1973 IS HEREBY CANCELLED AND HELD FOR NAUGHT.”

Frank argued that this document sanctioned his purchase of Anthony’s stock because it unambiguously showed the brothers’ intention to abandon the equality of ownership that they had always shared. Frank further maintained that the 1979 document evidenced the parties’ intent that the corporation’s stock could be sold or transferred without limitation.

Following arguments, the circuit court concluded that the bulk of its September 1990 findings was unaffected by the newly discovered 1979 document. Although the court acknowledged that the 1979 document changed its findings with respect to the Buy/Sell Agreement, the court noted that removal of that restriction did not release Frank from the other obstacles to his acquisition of Anthony’s stock, namely his fiduciary duty to Joseph and his 1989 oral agreement with Joseph. In denying Frank’s motion to dissolve the preliminary injunction, the court stated:

“The impediment to Frank’s purchase of this stock is not relieved by *** this new document. The impediment to Frank’s purchase of Anthony’s stock arises not from any restriction on stock’s transferability, but rather from the fiduciary position which Frank was in as to both the corporation and his partner, brother Joseph.
The late arriving November 18, 1979 document does not excuse Frank’s breach of the duty of loyalty that he owed to the company and to Joseph, his co-equal partner. It does not cloud the reality that Frank was engaged in self-dealing.
It does not authorize Frank’s breach of the oral agreement he made with Joseph to have the company buy-out Anthony’s shares. And it does not negate forty years of custom and practice regarding unanimity in corporate decisions and undertakings.”

Frank initially contends that he had no duty to refrain from buying Anthony’s stock, and thus the circuit court erred in granting the preliminary injunction. Specifically, Frank contends that he owed no fiduciary duty to Joseph as another shareholder; that he did not usurp a corporate opportunity; that Joseph had unclean hands and thus could not assert any wrongdoing by him; and that the 1979 document left him free to purchase shares from, or to sell shares to, anyone he wished. Further, Frank maintains that the circuit court’s finding that he and his brothers had operated Battaglia Holding through unanimous action for 40 years was against the manifest weight of the evidence. Frank further asserts that the court erred in finding an alleged oral agreement between Joseph and him, contending that the agreement was impossible. Finally, Frank maintains that Joseph did not establish his right to a preliminary injunction.

In response, Joseph initially contends that the majority of Frank’s arguments are waived; he maintains that the sole issue on appeal is the propriety of the court’s denial of the motion to dissolve the temporary injunction based upon the 1979 document and not the propriety of the grant of that injunction. Joseph asserts that, because Frank failed to perfect his appeal from the grant of the preliminary injunction (the appeal having been dismissed by this court), the order issuing the preliminary injunction is now the law of the case and res judicata for Frank’s present appeal. Thus, Joseph contends that Frank cannot request review of the grant of the preliminary injunction due to his failure both to perfect that appeal and to raise those same issues in his motion to dissolve.

“In general a party’s failure to timely appeal an order appeal-able under Rule 307(a) renders that order the law of the case and that part of the resulting judgment res judicata." (Wolfe v. Illini Federal Savings & Loan Association (1987), 158 Ill. App. 3d 321, 324, 511 N.E.2d 828.) Correspondingly, the failure to appeal in a timely fashion from a trial court’s order denying a motion to dissolve a temporary restraining order renders that order the law of the case from which a later appeal cannot be taken. (Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1983), 94 Ill. 2d 535, 544, 447 N.E.2d 288; Emerson Electric Co. v. Sherman (1986), 150 Ill. App. 3d 832, 502 N.E.2d 414; Baird & Warner, Inc. v. Gary-Wheaton Bank (1984), 122 Ill. App. 3d 136, 138, 460 N.E.2d 840.) Further, an order or decree from which an appeal might have been taken may not be reviewed on appeal from a subsequent order entered in the same cause. Baird & Warner, Inc. v. Gary-Wheaton Bank, 122 Ill. App. 3d at 138-39; Johnson v. Coleman (1977), 47 Ill. App. 3d 671, 673-74, 365 N.E.2d 102.

In the instant case, on October 18, 1990, after the circuit court entered the preliminary injunction, Frank appealed; however, no briefs or record were ever filed in connection with that appeal and this court subsequently dismissed it on March 31, 1992, refusing to consolidate it with the instant appeal. Thus, although he had the opportunity to appeal the circuit court’s grant of the preliminary injunction, Frank neglected to perfect that appeal. Accordingly, he cannot now assert those issues and arguments which he failed to pursue in his first appeal. Rather, he is confined to whatever issues were presented to the circuit court in his motion to dissolve the preliminary injunction, namely the effect of the 1979 document on the preliminary injunction and Joseph’s alleged mismanagement of the company. See International Association of Firefighters Local No. 23 v. City of East St. Louis (1990), 206 Ill. App. 3d 580, 565 N.E.2d 264.

Nevertheless, Frank argues that the propriety of the grant of the preliminary injunction is reviewable by this court, relying upon International Association of Firefighters Local No. 23 v. City of East St. Louis (206 Ill. App. 3d 580, 565 N.E.2d 264). That case, however, is inapposite. In International Association of Firefighters, the respondent argued on appeal that the trial court abused its discretion in refusing to dissolve an injunction. The petitioner replied that the respondent waived any error in the issuance of the preliminary injunction because it failed to raise any such issue or objection prior to the issuance of the injunction. In holding that the respondent did not waive the issue of improper issuance of the injunction, the appellate court relied upon the fact that “[a]ll of the issues raised in this appeal by [the respondent] were before the trial court on the motion to dissolve the injunction.” International Association of Firefighters Local No. 23 v. City of East St. Louis, 206 Ill. App. 3d at 584.

Unlike International Association of Firefighters, “all of the issues raised in this appeal” by Frank were not before the circuit court on his motion to dissolve the injunction. Rather, the only issues presented to the circuit court on the motion to dissolve the preliminary injunction were the impact of the 1979 document on the injunction and the alleged wrongdoing committed by Joseph and his sons. Accordingly, we find that those issues before the circuit court on the motion to dissolve the preliminary injunction are the only reviewable issues on appeal.

Here, the circuit court’s denial of Frank’s motion to dissolve the preliminary injunction was premised in part on its finding that the 1979 document, though controlling as to the Buy/Sell Agreement, was irrelevant to its earlier findings that Frank breached a fiduciary duty to Joseph and that Frank breached an oral agreement with Joseph. Frank asserts that the court erred in so holding, contending that the 1979 document evidenced the brothers’ intent to abandon the equality of ownership, and thus, no fiduciary duty existed.

A party seeking injunctive relief must establish that it has a clear right which ought to be protected; that it is likely to succeed on the merits; that there is no adequate remedy available at law; and that irreparable harm will occur if the injunction is not granted. (American National Bank & Trust Co. v. Chicago Title & Trust Co. (1985), 134 Ill. App. 3d 772, 776, 481 N.E.2d 71.) Correspondingly, the issuance of a preliminary injunction is within the sound discretion of the circuit court upon a prima facie showing of necessity. (Stasica v. Hannon (1979), 70 Ill. App. 3d 785, 787, 388 N.E.2d 1110.) A court’s exercise of discretion in ordering a preliminary injunction and in denying a motion to dissolve that injunction will not be overturned absent a clear showing of abuse. (American National Bank & Trust Co. v. Chicago Title & Trust Co., 134 Ill. App. 3d at 777.) Thus, a court on review will not reverse the judgment of the circuit court unless its ruling constituted an abuse of discretion as being against the manifest weight of the evidence. American National Bank & Trust Co. v. Chicago Title & Trust Co., 134 Ill. App. 3d at 777.

In considering the record in the instant case, we find that the circuit court’s order denying the motion to dissolve the preliminary injunction did not amount to an abuse of discretion. Indeed, the record supports the court’s order.

Contrary to Frank’s interpretation of the 1979 document, the conduct of the brothers in the 11 years following 1979 indicates that they had not rejected their traditional way of equally sharing decisions. No sales of stock to outsiders occurred; rather, the brothers’ only transfer of Battaglia Holding shares was to their wives, an agreed-upon transfer for estate planning purposes. Although the 1979 document, on its face, cancelled the Buy/Sell Agreement, minutes of the directors’ meeting, on which the 1979 document was based, indicate a different desire. Those minutes show that the three brothers wanted to specifically rescind that portion of the Buy/Sell Agreement restricting the inheritance of stock to their sons; no mention of the nontransferability of shares is discussed.

Notwithstanding the conflict, the circuit court nevertheless held that, even if the entire Buy/Sell Agreement were cancelled, the injunction was properly issued on several other grounds, none of which were affected by the 1979 document. In so holding, the court found:

“It’s clear that the document dated November 16, 1979 does not impeach or contradict the evidence, or this Court’s findings regarding[:] one[,] the company being a closed corporation; two, *** the fact that the brothers treated it like a partnership; three, the fact that all decisions were unanimous; four, the fact that all unilateral actions were ratified, thereafter unanimous; five, that the percentage of stock ownership was never a consideration in business decisions[;] [s]ix[,] that a pattern and practice of absolute equality between three brothers was not interrupted or changed in any manner by the November 16, 1979 document, and was indeed a pattern and practice which was continuous for forty years[;] [s]even[,] that Frank and Joseph had agreed that the company would buy Anthony’s stock[;] [a]nd eight[,] that in the sale of the stock by Anthony to Frank, neither relied on the November 16, 1979 document because neither had any recollection of such an instrument.”

Because the record contains substantial support for the circuit court’s findings, we find that the court did not abuse its discretion in denying Frank’s motion to dissolve the preliminary injunction. The testimony presented at the hearing established that Battaglia Holding was operated as a close corporation. (See Galler v. Galler (1964), 32 Ill. 2d 16, 203 N.E.2d 577; Hagshenas v. Gaylord (1990), 199 Ill. App. 3d 60, 557 N.E.2d 316, appeal denied (1990), 133 Ill. 2d 556, 561 N.E.2d 691.) Here, for over 50 years, one family operated and controlled the Battaglia-affiliated companies. At no time was anyone other than the three Battaglia brothers and their wives a shareholder in the company; rather, since its inception, the three brothers have been the sole directors and officers of Battaglia Holding. Furthermore, the conduct of the brothers over the course of 40 years indicates that they maintained a fiduciary duty to each other similar to that of partners. (See Illinois Rockford Corp. v. Kulp (1968), 41 Ill. 2d 215, 242 N.E.2d 228.) Although the 1979 document may have can-celled the brothers’ Buy/Sell Agreement, nowhere does the 1979 document evidence the brothers’ intent to relinquish their status as equals in the company. We thus find that the court properly held that the 1979 document did not abrogate the pattern and practice of equality between the three brothers.

Although there was some conflict between Joseph’s and Frank’s testimony concerning whether the two had an oral agreement to purchase Anthony’s shares, the court’s determination that such an agreement existed is supported by the record. Frank’s contention that such a contract was impossible because Anthony would never have consented to the sale of his shares to Joseph is simply not borne out by the record; although Anthony testified that he wanted Frank to run the company because of Joseph’s mismanagement, he also admitted that it was Frank who had informed him of the alleged mismanagement. Accordingly, we do not find that the court abused its discretion in denying the motion to dissolve the injunction.

Furthermore, Frank’s contention during oral arguments that Joseph “waived” his right to object to the sale of the shares because he did nothing for eight months after the transaction must fail. This argument was neither raised in the briefs on appeal, nor was it addressed in the circuit court. It is axiomatic that issues not raised in the circuit court are deemed waived and may not be raised for the first time on appeal. Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500-01, 475 N.E.2d 872; see Holmstrom v. Kunis (1991), 221 Ill. App. 3d 317, 325, 581 N.E.2d 877.

Based on the foregoing, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

SCARIANO and McCORMICK, JJ., concur.

      Since the inception of Battaglia Holding, the three brothers have been the sole directors. Sometime in 1988 or 1989, each brother, by agreement, transferred half his stock to his wife for estate planning purposes. When Anthony transferred shares to his sons, however, Joseph objected to the transfers as prohibited and Anthony then recovered his stock.

      Prior to 1989, Anthony had been physically incapacitated and confined to his bed for over 10 years. Although Anthony drew the same salary as the two brothers, his illness prevented him from working to the same degree as his brothers in the business.

      On October 18, 1990, Frank filed an interlocutory appeal of the circuit court’s order; that appeal was subsequently dismissed for want of prosecution on March 31, 1992.


author: PRESIDING JUSTICE JIGANTI

text:
    WASTE MANAGEMENT, INC., et al., Plaintiffs-Appellees, v. INTERNATIONAL SURPLUS LINES INSURANCE COMPANY et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—90—2979
    Opinion filed June 30, 1992.

      Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers, Robert J. Franco, Scott 0. Reed, and Michael A. Clarke, of counsel), for appellants.
    Joseph V. Giffin and Frank K. Heap, both of Bell, Boyd & Lloyd, of Chicago, for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The defendants, International Surplus Lines Insurance Company, International Insurance Company and American Special Risk Insurance Company (insurers), moved for a preliminary injunction to prevent the plaintiffs, Waste Management, Inc., and Chemical Waste Management, Inc. (Waste), from further disseminating a letter which the insurers claim is protected by the attorney-client and work-product privileges. The letter was written by counsel for the insurers and was sent to the insurers and to several unidentified reinsurers and retrocessionaires who share a common interest with the insurers in defending against this litigation. Waste obtained the letter from the public file of the Federal district court in Chicago, where it had been placed by one of the reinsurers in a lawsuit against defendant International Insurance Company. Waste moved to strike the insurers’ motion for a preliminary injunction. The trial court granted Waste’s motion to strike, finding that a preliminary injunction would not be effective in preserving the status quo because the letter had already been disseminated.

The insurers have appealed, contending that their motion properly pleaded a cause of action for a preliminary injunction based on the attorney-client and work-product privileges and that the trial court erred as a matter of law in striking the insurers’ motion pursuant to section 2 — 615 of the Code of Civil Procedure. Ill. Rev. Stat. 1989, ch. 110, par. 2—615.

This action arose on cross-complaints for a declaratory judgment to determine the parties’ rights and obligations under a number of environmental impairment liability (EIL) insurance policies affecting coverage for underlying actions involving five waste disposal sites located throughout the country. Waste defended and settled several of the underlying actions, then sought indemnity from the insurers. The EIL policies were issued as part of an international insurance program, or pool, involving various insurers, reinsurers, retrocessionaires, underwriting agents, engineering surveyors and claim handling agents. The Societe Commerciale de Reassurance (SCOR) was one of the lead reinsurers. SCOR retained the law firm of Denenberg, Tuffley, Bocan, Jamieson, Black, Hopkins & Ewald, P.C. (the Denenberg firm), to coordinate the legal defense of claims made against EIL policies issued through the pool. The Denenberg firm was also retained by the defendant insurers.

On March 14, 1990, during a hearing on an unrelated discovery matter, counsel for Waste attempted to introduce into evidence a letter from the Denenberg firm to Melvyn L. Berliner, a claims consultant for SCOR with respect to the claims made by Waste in this litigation. Waste did not disclose the manner in which it obtained the letter.

On March 21, 1990, the insurers filed under seal an emergency verified petition for preliminary injunction, permanent injunction and other relief. The petition alleged that the letter was protected by the attorney-client and work-product privileges because it contained “communications constituting legal advice and containing mental impressions with respect to matters in which litigation had occurred and/or was anticipated.” The petition alleged that the recipient of the letter, Melvyn Berliner, was within the control group of SCOR and therefore within the class of persons intended to be protected by the attorney-client privilege. On March 22, 1990, the trial court denied the petition on the grounds that the allegations were insufficient to establish that Berliner was within the control group of SCOR.

On March 29, 1990, Waste filed under seal a request for production of documents. Attached as exhibits to the request were several documents which the insurers claimed were protected by the attorney-client privilege and work-product doctrine. The insurers filed a privilege log identifying the nature of the privilege claimed in connection with each document.

On July 2, 1990, the insurers filed a new motion for a preliminary injunction and other relief. The motion asked the court to restrain Waste “from disseminating, receiving, copying or communicating in any fashion or media” the Berliner letter or any of the documents identified in the privilege log. It asked that discovery be permitted to determine the source of Waste’s possession of the letter and other documents and to determine whether Waste disseminated them. The motion also asked the court to grant the insurers leave to file supplemental interrogatories. Attached to the motion were a memorandum of law and 37 exhibits. One of the exhibits was the letter in question, which does not contain language stating that its contents were to be treated as confidential. The affidavit of George F. Curran III, one of the authors of the letter, named several recipients of the letter, then stated that it was also distributed to a number of unnamed “reinsurers of [defendant] International and retrocessionaires of SCOR with respect to [the EIL] policies.” Curran further averred that the reinsurers who received the letter shared a “community of interest” with the insurers and that the letters and other documents claimed as privileged were “treated in confidence and no copies or other disclosures of the confidential information contained therein, have been provided by the Denenberg firm to any non-client or other entity who does not share a community of interest with the [insurers].”

An affidavit by Melvyn Berliner stated that Berliner was a claims consultant employed by SCOR, that his duties included the supervision of coordinating counsel and that Berliner’s advice formed the basis of SCOR’s decisions in certain specified areas.

John W. Dondanville, an attorney with the law firm of Baker & McKenzie, filed an affidavit stating that he was counsel for defendant International in a Federal court action brought by International against Certain Underwriters at Lloyd’s, London et al. (Certain Underwriters). The suit sought the recovery of reinsurance proceeds with respect to payments made by International to one of its insureds under an EIL policy. Dondanville averred that on March 21, 1990, he became aware of the “probable improper source for Waste Management’s possession” of the Berliner letter and the other allegedly privileged documents. According to Dondanville, on February 13, 1990, counsel for Certain Underwriters filed the letter and other documents in the Federal district court as a group exhibit to a motion to disqualify Baker & McKenzie from acting as counsel for International. Upon motion by Baker & McKenzie, these documents were sealed by the Federal court on March 22, 1990. Dondanville further averred that “prior to February 13, 1990, the [firm representing Certain Underwriters] had been advised that the privilege of such documents must be preserved and the *** firm acknowledged that they and their clients had a substantial obligation to preserve these privileges.”

Waste filed a motion to strike the insurers’ motion for a preliminary injunction. Waste’s motion alleged primarily that the insurers either failed to preserve or waived the confidentiality of the documents in question, and that an injunction would be ineffective in maintaining the status quo because the documents had already been disseminated. Hearings were held on July 31, 1990, August 21, 1990, and September 20,1990.

At the July 31, 1990, hearing, counsel for the insurers stated that he believed Waste obtained the documents from the Federal district court file before it was sealed. The trial court then asked, “What’s the purpose of having this hearing? The documents are out. *** How could I enjoin what’s already been distributed?” Counsel replied:

“The best thing we can get would be an order giving us that document back, giving us back the other documents obtained from whatever source in fact they were obtained from, getting them back from the other parties or other entities to whom they have distributed them, and entering an order barring any use of that document in this case.”

At the August 21, 1990, hearing, counsel for the insurers stated that the letter and other documents “have been produced in three cases. They have been produced in California, they have been produced in a case in Pennsylvania, and they have been produced in a case here — in this case.” Counsel further stated that the Federal court file from which the documents were obtained had been sealed. At the September 20,1990, hearing, the court made the following comment:

“The purpose of a preliminary injunction is to obtain a determination so that a status quo can be maintained until a permanent injunction is obtained.
Now, the Court has reviewed aU of the allegations, affidavits, exhibits, and everything, with a view as to whether or not there are sufficient statements there to warrant the hearing on a preliminary injunction.
The particular area which does not seem to be sufficiently addressed in the preliminary injunction is whether or not a preliminary injunction will maintain a status quo.
* * *
*** I just don’t think that the preliminary injunction, the hearing, is going to accomplish anything with respect to obtaining the status quo since there has already been exposure of the letter in the Court file through no fault of [Waste].”

The court then invited further argument on the issue of whether a preliminary injunction would be effective in preserving the status quo. Counsel for the insurers argued that to the best of his knowledge Waste had not disseminated any of the allegedly privileged materials and that a preliminary injunction would prevent it from doing so until a permanent injunction could be obtained. The court then granted Waste’s motion to strike, finding that “[t]he status quo was the distribution of the documents, and therefore, there is no status quo to maintain here.”

On appeal, the insurers contend that the trial court erred as a matter of law in striking the motion for a preliminary injunction on the grounds that it failed to state a cause of action.

After oral argument was held in this cause, we became concerned about the appealability of the order before us and ordered the parties to brief the issue of jurisdiction. Although injunctions may be the subject of an interlocutory appeal (134 Ill. 2d R. 307(a)(1)), discovery orders may not. (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 429 N.E.2d 483.) In determining whether an order is appealable as an injunction, a reviewing court must look to the substance of the order rather than to its form. In re A Minor (1989), 127 Ill. 2d 247, 260, 537 N.E.2d 292.

In their motion for a preliminary injunction, the insurers requested various relief in addition to an order enjoining Waste from disseminating the Berliner letter. They asked that Waste be ordered to return all copies of the letter and other allegedly privileged materials. The insurers also asked the court to allow discovery to proceed in order to determine the source of the letter and to grant their motion for leave to file supplemental interrogatories. To a large extent, the relief requested by the insurers involved discovery matters. Our concern is with the possibility of having appellate jurisdiction improperly conferred upon this court simply by the characterization of an otherwise nonappealable interlocutory discovery order as an injunction.

In briefing the issue of jurisdiction, the parties agree that In re A Minor (1989), 127 Ill. 2d 247, 537 N.E.2d 292, is the controlling case on whether an order is properly appealable as an injunction. There, the supreme court drew a distinction between ministerial or administrative orders, which regulate only the procedural details of the litigation before the court, and true injunctive orders, which affect the relationship of the parties in their everyday activities apart from the litigation. After considering A Minor and our decision in Cum mings v. Beaton & Associates, Inc. (1989), 192 Ill. App. 3d 792, 549 N.E.2d 634, we are persuaded that the relief requested by the insurers went beyond ministerial matters involving the procedural aspects of the lawsuit. Although we believe this to be a close question, it appears that the matter is properly appealable as the denial of an injunction.

A preliminary injunction is a provisional remedy grounded in equity. (Schnepper v. American Information Technologies, Inc. (1985), 136 Ill. App. 3d 678, 680, 483 N.E.2d 987.) Its purpose is not to determine controverted rights or to decide the merits of the case. (In re Marriage of Schwartz (1985), 131 Ill. App. 3d 351, 354, 475 N.E.2d 1077.) Rather, the purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits. (Schnepper, 136 Ill. App. 3d 678, 483 N.E.2d 987.) The status quo is defined as the last, actual, peaceable, uncontested status which preceded the controversy. Spunar v. Clark Oil & Refining Corp. (1977), 53 Ill. App. 3d 477, 481, 368 N.E.2d 990.

A court exercises broad discretionary powers in determining whether a preliminary injunction should issue. (American National Bank & Trust Co. v. Chicago Title & Trust Co. (1985), 134 Ill. App. 3d 772, 776-77, 481 N.E.2d 71.) A reviewing court may consider substantive issues only so far as necessary to determine whether the trial court acted within the parameters of its authority. American National Bank & Trust Co., 134 Ill. App. 3d 772, 481 N.E.2d 71.

In the case at bar, the insurers maintain that the sole question considered by the trial court was whether the allegations of the insurers’ motion for a preliminary injunction sufficiently stated a cause of action. They maintain that the issue was simply one of law and that the trial court did not exercise its discretion in striking their motion. We disagree. Our review of the record leads us to conclude that the trial court determined that, even accepting the insurers’ allegations as true, a preliminary injunction would not be effective in preserving the status quo — a matter of discretion.

The motion and exhibits filed by the insurers show that the letter from the Denenberg firm to Melvyn Berliner was distributed to several unnamed reinsurers and retrocessionaires. Although affidavits from some of the recipients stated that the letter was treated as confidential, the letter itself did not contain any language directing that it be held in confidence. One of the reinsurers, in an unrelated lawsuit against defendant International, filed a letter in the Federal district court in Chicago, where it remained accessible to the public for a period of five weeks. When the insurers here discovered that Waste had obtained the letter, the district court file was sealed. However, counsel for the insurers acknowledged that the letter and other allegedly privileged documents had been produced in other lawsuits in different States. Thus, the court was aware that the documents had been accessible to the public and were being used by litigants in other lawsuits. We believe that under the circumstances, the trial court acted within its discretion in determining that a preliminary injunction preventing Waste from disseminating the documents in question would not be effective in maintaining the status quo.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.