author: JUSTICE LINN

text:
    THOMAS CUMMINGS et al., Plaintiffs-Appellants, v. BEATON & ASSOCIATES, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—89—0336
    Opinion filed December 14, 1989.
    Rehearing denied January 22, 1990.
    Sachnoff, Weaver & Rubenstein, Ltd., and Becker & Tenenbaum, both of Chicago (Lowell E. Sachnoff, Arnold A. Pagniucci, Theodore M. Becker, J. Samuel Tenenbaum, and Steven C. Daily, of counsel), for appellants.

      Foran, Wiss & Schultz, Sonnenschein, Carlin, Nath & Rosenthal, Ross & Hardies, Lord, Bissell & Brook, Connelly, Mustes & Palmer, Thomas J. Reed, and Harvey J. Barnett & Associates, Ltd., all of Chicago (Thomas A. Foran, Richard G. Schultz, James R. Figliulo, Steven H. Gistenson, Alan Silberman, Michael King, Kurt L. Feuer, Evan A. Burkholder, John M. Hughes, Michael P. Connelly, Kathleen A. Bridgman, and Michael S. Blazer, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiffs, Thomas and Barbara Cummings, appeal from an order of the trial court that impounded the trial record and ordered the parties to refrain from discussing certain allegations found in the second amended complaint. Defendants are McDonald’s Corporation, private investigative agencies and their agents, and certain individuals who allegedly conspired to harass and intimidate a witness in related litigation and who allegedly committed other acts that “corruptly influenced the administration of justice.”

On this interlocutory appeal, plaintiffs assert that the order entered constitutes prior restraints on speech; is overbroad and vague; and also violates the right of public access to court files. Defendants respond that the court has inherent power to supervise its own records and that the order is not appealable under Supreme Court Rule 307(a) (107 Ill. 2d R. 307(a)). In addition, they state that the allegations in question include “vicious” and untrue rumors of a murder plot and that the order does not violate plaintiffs’ constitutional rights.

Background

In December of 1985 the plaintiffs filed the original complaint, which they amended in June 1986. By agreement of the parties the action was stayed because of the pendency of a related action in the Federal court. Discovery in that suit proceeded until the Federal court granted the defendants’ motion to dismiss the action.

Several months after the Federal lawsuit had been dismissed, plaintiffs sought leave to file a second amended complaint and to lift the stay of the pending State court action. The hearing on this motion took place on January 6,1989.

At the hearing, defendants objected to the filing of the second amended complaint, in part because it contained “scurrilous” allegations that had not been raised in the original or first amended complaint; furthermore, the Federal discovery proceedings established that these allegations had no basis in fact.

One of the allegations of the second amended complaint concerned a statement that supposedly tied the chairman of the board of McDonald’s to a plot to murder one of the plaintiffs, Thomas Cummings. At the January 6 hearing defense counsel told the court that the source of the rumor had denied making this statement in a deposition taken in the Federal court proceeding. Defendants’ attorneys therefore requested the court to grant them leave to file written objections to the plaintiffs’ motion to file the second amended complaint. Plaintiffs told the court that they must file it immediately to avoid problems with the statute of limitations. In an attempt to accommodate both sides, the trial court allowed plaintiffs to file the second amended complaint and ordered the file to be impounded until the court could rule on defendants’ objections to the amended pleading. In addition, the court prohibited the parties and their agents from disseminating information contained in the complaint. The court then set a briefing schedule on defendants’ objections to the plaintiffs’ motion.

On January 24, 1989, plaintiffs filed a motion to vacate the impoundment order. Both sides filed memoranda, and the court held a hearing on February 3, 1989.

The court commented that the order was intended to be provisional in nature and to simply give defendants an opportunity to show that whatever had been filed was false and should be stricken, to avoid a public display if the charges were found to be meritless. Plaintiffs’ counsel argued, among other things, that the order was too broad. The court then modified its January 6 order, prohibiting only the dissemination of matters relating to specific paragraphs of the second amended complaint.

The trial court’s initial order impounded the entire file and enjoined the parties and their agents from “disseminating any of the impounded documents, matters relating to this case or information derived from the case with anyone.” The amended order attempted to narrow this by limiting the “gag” aspects to specific paragraphs. In pertinent part the amended order from which this appeal is taken states as follows: “It is further ordered that all parties, agents and attorneys are enjoined from disseminating any of the impounded documents or information which relates in any way to paragraphs 31, 32, 33, 38(a), 38(b), 38(c), 38(d), 38(e), 39 through 45, inclusive, 58 through 68 inclusive and 71 of the Second Amended Complaint to anyone including the media and a copy of this order shall be served on new parties to be served herein. All pleadings shall be filed with this order.”

Since the filing of the plaintiffs’ notice of interlocutory appeal, on February 3, 1989, defendants have filed certain motions directed at the pleadings, plus a motion for partial summary judgment. During oral argument the parties informed the court that defendants’ motion to strike the second amended complaint has been granted in part and that only two paragraphs are still in dispute. Defendants’ motion for summary judgment is pending, and a motion to modify the impoundment order is also pending, apparently subject to plaintiffs’ objection on jurisdictional grounds.

Opinion

Plaintiffs initially attack the order as violating the free speech and due process clauses of the Federal and State Constitutions. Characterizing it as a prior restraint on speech, they assert that the gag portions of the order are presumptively unconstitutional. Specifically, they assert that the prohibition against the parties and their agents from disclosing information regarding the allegations of the second amended complaint is a “predetermined judicial prohibition restraining specified expression,” violation of which is punishable by contempt even if it is constitutionally infirm. (Chicago Council of Lawyers v. Bauer (7th Cir. 1975), 522 F.2d 242, 248.) Therefore, the court must review the gag order with a “heavy presumption” that it is unconstitutional. (E.g., Organization for a Better Austin v. Keefe (1971), 402 U.S. 415, 419, 29 L. Ed. 2d 1, 5, 91 S. Ct. 1575, 1578.) Because of the free speech protections that the first amendment provides, restricting comment on matters pending in court should be limited to those “that pose a ‘serious and imminent threat’ of interference with the fair administration of justice.” Chicago Council of Lawyers v. Bauer (7th Cir. 1975), 522 F.2d 242, 249.

Plaintiffs also attack the impoundment of the court file as improperly restricting public access to court records. They contend that the standard for preventing access to judicial proceedings requires a showing of a “compelling governmental interest” and a narrow tailoring of the order to fit that interest.

Defendants take an entirely different view of the order, characterizing it as an exercise of the trial court’s inherent power to supervise its records and control its docket. They note that the order was intended to be provisional, lasting only until the court could rule on the challenged allegations of the second amended complaint, and that the order is not appealable as an injunction under Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307).

I

We first address the appealability of the order. Rule 307(a)(1) allows interlocutory appeals to be taken from injunctive orders. By its terms, the order in this case restrains the parties from disseminating certain information. The Illinois Supreme Court views orders that restrain parties and their attorneys from making extrajudicial comments about a pending civil matter as orders subject to interlocutory review. (See Kemner v. Monsanto Co. (1986), 112 Ill. 2d 223, 492 N.E.2d 1327; In re a Minor (1989), 127 Ill. 2d 247, 537 N.E.2d 292.) In Kemner, the order in question restrained the parties from discussing the case with the media or issuing further press releases that might be read by the jury. No one challenged the order as not being appealable under Rule 307(a)(1). Subsequently, in Minor, the supreme court noted that it had “assumed” that the Kemner order was a proper one for interlocutory review.

Minor involved an interlocutory order that prohibited a newspaper from publishing information relating to a juvenile hearing. The court explicitly held that order to be appealable as an injunction under Rule 307(a)(1). The court acknowledged that ministerial orders regulating the procedural details of litigation are not proper subjects of interlocutory review, and gave as examples discovery orders and subpoenaes. (127 Ill. 2d at 262, 537 N.E.2d at 298, citing People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 429 N.E.2d 483.) The court went on to hold that “interlocutory restraints upon publication of information are reviewable as interlocutory injunctive orders under Rule 307(a)(1).” 127 Ill. 2d at 263, 537 N.E.2d at 299.

Kemner and Minor lead us to conclude that the challenged order in this case is proper for interlocutory review as an injunction because it is a restraint on speech that goes beyond ministerial matters involving only procedural aspects of the litigation. While we believe that the trial court was attempting to fashion a temporary and perhaps mildly restrictive order to accommodate the parties’ conflicting interests, we do not believe that the order entered falls into the category of administering to procedural details of the litigation. As written, the order clearly prohibits certain speech, including the publication of information related to the case. Therefore, we find that the order is properly before us pursuant to Rule 307(a)(1).

II

Our finding as to appealability is also relevant to the merits. Once the order is characterized as an injunction against certain speech, as opposed to a ministerial order, the first amendment analysis applies. Defendants’ arguments regarding the inherent power of the court to supervise its records therefore lose significance. Instead, we must consider whether the restraint imposed by the order promotes a compelling governmental interest that outweighs the “heavy presumption” that the order is unconstitutional. Press-Enterprise Co. v. Superior Court (1984), 464 U.S. 501, 78 L. Ed. 2d 629, 104 S. Ct. 819; Organization for a Better Austin v. Keefe (1971), 402 U.S. 415, 419, 29 L. Ed. 2d 1, 5, 91 S. Ct. 1575, 1578.

In Kemner, the Illinois Supreme Court held that a trial court could only restrain parties and their attorneys from making extrajudicial statements about a pending civil case if the court made specific findings that the conduct posed a “clear and present danger or a serious and imminent threat to the fairness and integrity of the trial.” (Emphasis in original.) (Kemner, 112 Ill. 2d at 244, 492 N.E.2d at 1337.) No such findings were made in the pending case.

It is true that this case is at a preliminary stage and does not involve an ongoing trial. Information obtained through pretrial discovery in civil proceedings may be restricted, upon a showing of good cause, as where the discovered facts are incidental to the material issues and might be used to invade privacy interests or to damage reputations. (Seattle Times Co. v. Rhinehart (1984), 467 U.S. 20, 81 L. Ed. 2d 17, 104 S. Ct. 2199 (Courts may restrict the dissemination of information obtained through discovery before trial to prevent “abuse of its processes”).) The Seattle Times court, however, also reiterated the general rule that speech shall not be restricted unless such restraints are no greater than is necessary to the protection of an important or substantial governmental interest unrelated to the suppression of expression. 467 U.S. at 32, 81 L. Ed. 2d at 26, 104 S. Ct. at 2207.

In the pending case defendants have not demonstrated what important or substantial governmental interest is at stake in need of protection by the gag order. We do not believe that the order entered in the pending case is necessary to protect the judicial process. The matters suppressed are matters that have already received press coverage, including the allegation or rumor concerning the murder plot. The record on appeal contains articles from newspapers, as well as transcripts from radio news programs, which report the assertions. These news reports also carry a strong denial from the source of the alleged rumor that he ever implicated the corporate official in any such plot. Therefore, without considering the truth or falsity of the suppressed allegations, or their possibly defamatory nature, we find that there is no substantial governmental interest in barring public access to the court file or preventing the parties from discussing the allegations with witnesses and other persons.

We limit our holding to the particular circumstances contained herein, and we do not express any opinion as to why a court file might properly be impounded in the course of pretrial proceedings. Courts have recognized that the public’s right to inspect court records is not absolute and that the courts have an inherent power to control their records. (See Nixon v. Warner Communications, Inc. (1978), 435 U.S. 589, 598, 55 L. Ed. 2d 570, 580, 98 S. Ct. 1306, 1312; Deere & Co. v. Finley (1981), 103 Ill. App. 3d 774, 431 N.E.2d 1201.) In the pending case, however, the sensitive allegations are in the public domain. The impounding of the file and the restraint on the dissemination of the challenged information therefore serve no real purpose and protect no governmental interest. We conclude that the trial court’s order of January 6, 1989, as amended by the order of February 3,1989, must be vacated.

Because of our determination that the impoundment and gag provisions of the order are not justified under the circumstances, we do not address the overbreadth and vagueness issues.

For the foregoing reasons, we vacate the order of the trial court and remand this cause for further proceedings.

Vacated and remanded for further proceedings.

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

      We hesitate to approve a procedure in which a judicial finding of the truth or falsity of allegations is required before a complaint may be filed of record.

      There are several situations in which the private interests of litigants may be served by the entry of orders which restrain the dissemination of information. For example, the parties may agree to or the court may enter a protective order to prevent confidential information or trade secrets from being released to third parties. In Seattle Times Co. v. Rhinehart (1984), 467 U.S. 20, 81 L. Ed. 2d 17, 104 S. Ct. 2199, the Court upheld a restraint on the dissemination of material obtained through discovery and dealing with the financial affairs of a litigant because the information was not material to the issues and could be damaging to the party who sought to have it suppressed.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    IMOGENE BOSAK, Plaintiff-Appellant, v. THOMAS McDONOUGH, Defendant-Appellee (Gerald E. Murphy et al., d/b/a Century 21 Realtors, Defendants).
    First District (2nd Division)
    No. 1—88—3074
    Opinion filed December 19, 1989.

      John W. Long, of Chicago, for appellant.
    Horvath & Wigoda, of Chicago (John F. Horvath and Paul E. Kantwill, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff-appellant Imogene Bosak sued defendant-appellee Thomas McDonough and defendants Gerald E. Murphy and John C. Kmiecik, alleging fraud and conspiracy to defraud against all defendants and breach of fiduciary duty against McDonough, in connection with four loans totalling $240,000 made to Murphy to cover shortages in Murphy’s real estate escrow account. Bosak now appeals from the trial court’s order granting McDonough’s motion for summary judgment, raising as issues (1) whether the trial court erred in granting summary judgment in favor of McDonough on Bosak’s conspiracy to defraud count; (2) whether the trial court erred in granting summary judgment in favor of McDonough on Bosak’s breach of fiduciary duty count; and (3) whether Bosak is estopped to assert fraud against defendants because she participated in wrongdoing by loaning Murphy money knowing that it would be used for illegal purposes.

Bosak, a widow who received large sums of money upon her husband’s death, met Murphy in a bowling alley in November 1979. Beginning in December 1979, Murphy, a real estate broker and owner of Gerald E. Murphy & Associates, Ltd. (GEMA), illegally commingled the funds in his real estate escrow account with the funds in his general business account. In March 1980, Murphy needed money to cover shortages in the escrow account. After being refused loans from several banks, he approached Bosak, explained to her the purpose of an escrow account, and told her that if he did not cover the shortage, he would lose his real estate license. Bosak gave Murphy $80,000 in exchange for a promissory note at 16% interest and a stock certificate for all outstanding shares in GEMA. Murphy deposited the money in his escrow account and told Bosak that because she had 100% of the stock, she had become the owner of the company.

In the summer of 1980, Murphy told Bosak he needed more money for the escrow account and Bosak loaned him an additional $55,000, which she had obtained through a loan from a bank. Bosak later testified at her deposition that she loaned Murphy the money to “save his license and protect her prior investment.” She did not receive any collateral for the $55,000 loan.

After receiving the second loan from Bosak, Murphy contacted McDonough and told him he was $100,000 short in his escrow account. McDonough told Murphy that the shortage in the escrow account was illegal, and advised him to contact Bosak to “create some money.” Bosak then met with Murphy and McDonough. McDonough explained to Bosak that if the shortage was not covered, Murphy would lose his license and she would lose the money she had already invested. McDonough then prepared a loan application for Bosak, which Bosak reviewed and signed. McDonough drove Bosak to the bank, telling her again that if Murphy did not get money into his escrow account, “people would know there [was] trouble” and she would lose “everything that [she had] in there.” Bosak obtained $40,000 from the bank and loaned it to Murphy.

Two weeks later, Murphy again told Bosak that the escrow fund was short and Bosak loaned Murphy yet another $50,000. This money was also obtained through a bank. Bosak filled out the application herself, but McDonough prepared the necessary documents to place the deed to Bosak’s home in a land trust as collateral. Bosak asserts that McDonough received $2,500 from the proceeds of the loans as fees for the loan transactions, but McDonough maintains that he received only money that Murphy already owed him. Bosak testified later at her deposition that she would not have made the loans to Murphy had she known the seriousness of the troubled condition of the business.

In early 1981, Murphy’s escrow account was still short and Murphy, concerned that State authorities would soon audit his escrow account, asked Kmiecik if he would consider buying GEMA. Revocation of Murphy’s corporate, branch office, and broker’s licenses became imminent, and Murphy told McDonough that a buyer had to be found and that he had spoken with Kmiecik in that regard. McDonough informed Murphy of a possible buyer other than Kmiecik and also advised Murphy that bankruptcy was an alternative. Nevertheless, Murphy met with Kmiecik and agreed that Kmiecik would purchase GEMA for the amount of the deficient escrow account plus the total outstanding obligation to Bosak. These discussions all occurred without Bosak’s knowledge.

On March 15, 1981, State authorities discovered the illegal shortage in the escrow account. Murphy and McDonough traveled to Springfield, where it was agreed that Murphy would surrender his broker’s license, but the corporate and branch office licenses would remain intact until the sale of the business was completed.

Bosak, meanwhile, learned of the meeting with Kmiecik and requested that she be permitted to attend subsequent meetings involving the business. At the first meeting she attended, she was asked if it “would be agreeable to her for Kmiecik to run [GEMA].” Bosak indicated that such an arrangement would be agreeable. Although it is not clear whether Bosak agreed that Kmiecik would repay her loans, that topic was discussed at the meeting.

At the second meeting Bosak attended, she asked the lawyers present if she should have her own lawyer. Both McDonough and Kmiecik’s lawyer told Bosak that she should have her own lawyer, whereupon Bosak stated she would consult with a lawyer named Tony Sisliano, with whom she was acquainted. McDonough responded that “he might blow the whistle on the whole deal” if he learned about the deficient escrow account, and referred Bosak to a lawyer named Hammer, with whom he was acquainted. Eventually, the subject of the money owed to Bosak was discussed. According to Bosak, she agreed to an arrangement under which Kmiecik would take over GEMA, but only under the condition that Kmiecik paid her $165,000 of the $250,000 owed by Murphy.

At the third meeting Bosak attended, she was represented by a lawyer named Axelrod, an associate of Hammer’s. The parties discussed the sale of the business to Kmiecik. At the fourth meeting attended by . Bosak, she was represented by Hammer. At that meeting, the parties agreed that as part of the sale of the business, Kmiecik would pay Bosak the money she was owed. McDonough, Hammer, and Kmiecik’s lawyer told Bosak to “forget about”.the GEMA stock she owned; that Murphy was going to lose his corporate and broker’s licenses; and that Kmiecik would run the business. They also told her that only a licensed real estate broker could have, an ownership interest in the agency. Bosak was not a licensed broker, but apparently had twice applied for a license without success.

A fifth meeting was held, at which Bosak was represented by a lawyer named Shields, whom Bosak had retained and who was not associated with either Hammer or Axelrod. At that meeting, Kmiecik again agreed to pay Bosak the money she had lent to Murphy.

On May 11, 1981, without Bosak’s knowledge or express consent, McDonough, Murphy, and Kmiecik met and agreed to transfer all of GEMA’s salespersons and real estate licenses to Kmiecik. Before the sale of the business could be completed, however, Murphy’s corporate and broker’s licenses were suspended by the State authorities. Murphy and Kmiecik went to Springfield, where State officials reissued the corporate and broker’s licenses under Kmiecik’s name. Kmiecik then took possession of the offices, fixtures, and accounts of GEMA, and had all listing contracts changed to his company. Kmiecik made one interest payment on one of Bosak’s bank loans, but then “decided not to pay anything.”

In November 1982, Bosak filed a four-count complaint against Murphy, McDonough, and Kmiecik, alleging fraud and conspiracy to defraud against all three individuals, and breach of fiduciary duty against McDonough. In November 1986, McDonough moved for summary judgment. His motion was first granted on count II, the conspiracy to defraud count, and denied on count IV, the breach of fiduciary duty count. After further discovery, the motion was also granted on count IV. Murphy has not moved for summary judgment, and Kmiecik’s motion for summary judgment was denied. This appeal concerns only issues raised by the dismissal of the counts directed against McDonough.

I

Bosak maintained first that summary judgment on the conspiracy to defraud count was improperly granted. She argues that Mc-Donough’s participation in a conspiracy to defraud may be inferred from the circumstances, especially McDonough’s “strong role in guiding the actions of Murphy and Kmiecik” and that McDonough, who was fully aware of Murphy’s fraudulent acts, is not shielded from liability by his membership in the legal profession. Bosak also argues that summary judgment was improvidently granted because there were disputed issues of fact as to whether McDonough induced her to make loans to Murphy knowing that Murphy’s real estate business was worthless. We disagree.

The elements of a cause of action for conspiracy to defraud are: (1) a conspiracy; (2) an overt act of fraud in furtherance of the conspiracy; and (3) damages to the plaintiff as a result of the fraud. (Abell v. First National Bank (1987), 153 Ill. App. 3d 946, 948, 506 N.E.2d 684; Commercial Products Corp. v. Briegel (1968), 101 Ill. App. 2d 156, 164, 242 N.E.2d 317.) A “conspiracy” is a combination of two or more persons to accomplish the concerted action an unlawful purpose or a lawful purpose by unlawful means. (Abell v. First National Bank, 153 Ill. App. 3d at 948, 506 N.E.2d 684; Celano v. Frederick (1964), 54 Ill. App. 2d 393, 400 n.3, 203 N.E.2d 774.) Because a conspiracy is difficult to prove -with direct evidence, it may be established with circumstantial evidence and legitimate inferences therefrom. (Majewski v. Gallina (1959), 17 Ill. 2d 92, 99, 160 N.E.2d 783.) Proof of civil conspiracy, however, if made solely by circumstantial evidence, must be clear and convincing. (Tribune Co. v. Thompson (1930), 342 Ill. 503, 529, 174 N.E.2d 561; Abell v. First National Bank, 153 Ill. App. 3d at 948, 506 N.E.2d 684.) If a conspiracy is shown, an injured plaintiff need only establish that an overt fraudulent act in furtherance of the conspiracy was committed by one of the alleged conspirators. See Wolf v. Liberis (1987), 153 Ill. App. 3d 488, 505 N.E.2d 1202.

In this case, summary judgment in favor of McDonough was properly granted because the facts, read in the light most favorable to Bosak, do not establish that McDonough participated in a conspiracy. There is no evidence that McDonough counseled Murphy to accomplish by concerted action an unlawful purpose or a lawful purpose by unlawful means. On the contrary, the undisputed evidence shows that McDonough did not counsel Murphy with the object of defrauding Bosak, or agree in any way to perpetrate a fraud against Bosak, but merely advised Murphy to cover the unlawful shortage in his escrow account. McDonough told Bosak, correctly, that Murphy stood to lose his real estate licenses and, consequently, his business, if the shortage in the escrow account was not covered. Bosak agreed to make two additional loans to Murphy, fully aware that if the deficiency in Murphy’s escrow account persisted, the business would fail and she would lose her prior investment. Bosak’s bald assertion that she would not have loaned Murphy any money had she known the seriousness of Murphy’s troubles, and that McDonough concealed knowledge that the business was worthless, is not supported by the record and does not raise a genuine issue of fact precluding summary judgment.

Although McDonough might have been ethically obligated to disclose that he was laboring under potential conflict of interest in assisting Bosak with a loan application form and with documents transferring the deed to her home into a land trust account, there is no evidence that McDonough’s purpose in assisting Bosak in obtaining bank loans was fraudulent. There is evidence to the contrary that Mc-Donough assumed the money was to be deposited into Murphy’s escrow account, pursuant to the wishes of both Murphy and Bosak, received only legal fees for services performed on Murphy’s behalf, and did not otherwise benefit from the loan transactions.

There is also no evidence that McDonough had a fraudulent purpose in facilitating the sale of the business. Indeed, when Murphy was still unable to cover the deficiencies in his escrow account and informed McDonough that he wished to sell the business, McDonough told Murphy that bankruptcy was a possibility, or if that did not appeal to Murphy, that he knew of a potential buyer. Murphy stated that he already had a buyer in mind, whereupon discussions ensued between McDonough, Murphy, and Kmiecik. McDonough acted only as Murphy’s lawyer in negotiating for the sale of the business. There is no evidence that McDonough intended to exclude Bosak from any meeting and, indeed, Bosak attended the meetings after she learned about them without any objection from McDonough. Although Mc-Donough was reluctant to deal with a certain lawyer acquainted with Bosak, he in fact advised her to obtain a lawyer in the first instance and did not object when a lawyer retained by Bosak with whom he was not acquainted attended the meetings. Finally, the record shows that McDonough, like Bosak, understood that the business was to be sold to Kmiecik for a price which included either a lump sum payment to Bosak, or Kmiecik’s assumption of Murphy’s debt to Bosak. Mc-Donough even offered to assist Kmiecik in obtaining the needed funds to complete the sale, which presumably would have benefited Bosak, if only Kmiecik had paid her as promised.

Because there is no evidence that McDonough participated in a conspiracy, we need not decide whether evidence of an overt fraudulent act in furtherance of the conspiracy exists precluding summary judgment in favor of McDonough.

II

Bosak maintains next that the trial court erred in granting summary judgment in favor of McDonough on her breach of fiduciary duty count. Bosak argues that she placed her trust and confidence in McDonough, creating a fiduciary relationship, and that McDonough breached his fiduciary duty by persuading her to make loans to Murphy knowing that the value of Murphy’s business was worthless. We disagree.

A fiduciary relationship exists where one person places trust and confidence in another who thereby acquires dominance and influence over that person. (Ray v. Winter (1977), 67 Ill. 2d 296, 367 N.E.2d 678.) A fiduciary relationship may arise incident to a legal, social, domestic, or personal relationship. (Wolinsky v. Kadison (1983), 114 Ill. App. 3d 527, 449 N.E.2d 151.) The existence of a fiduciary relationship must be shown by clear and convincing proof leading unequivocally and unmistakably to the conclusion that a fiduciary relationship existed. Carey Electric Contracting, Inc. v. First National Bank (1979), 74 Ill. App. 3d 233, 392 N.E.2d 759.

In this case, summary judgment in favor of McDonough was properly granted because the undisputed facts, and the disputed facts read in the light most favorable to Bosak, do not provide clear and convincing evidence of the existence of a fiduciary relationship. On the contrary, even if Bosak placed her trust in McDonough, the evidence shows that she was predisposed to loan money to Murphy. It is undisputed that McDonough had no involvement whatsoever in the first two loans. With respect to the third and fourth loans, Mc-Donough merely informed Bosak that the money was needed to prevent Murphy from losing his real estate licenses, without which he would lose his business and Bosak would lose her investment. This fact was already known to Bosak, who admitted that she loaned Murphy additional money to protect her investment. It cannot be said that McDonough persuaded Bosak to make the loans by assisting her with her loan application, or by preparing the necessary documents to put her house up as collateral. By that time, Bosak had already decided to make the loans. She provided McDonough with the necessary information and reviewed the documents he prepared. All the evidence shows that Bosak acted independently and was neither dominated nor influenced by McDonough’s actions. Certainly, clear and convincing proof of the existence of a fiduciary relationship is lacking, and summary judgment in favor of McDonough was properly granted.

Because of our conclusions above, we do not reach the other issues raised by McDonough.

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

Judgment affirmed.

BILANDIC, P.J., and SCARIANO, J., concur.


author: JUSTICE HARTMAN

text:
      In re MARRIAGE OF CAROLE LAI, Petitioner-Appellee, and ANTONIO LAI, Respondent-Appellant.
    First District (2nd Division)
    No. 1—88—3329
    Opinion filed December 19, 1989.
    Joel Ostrow, of Chicago, for appellant.

      LeVine, Wittenberg, Eisner, Newman & Silverman, Ltd., of Homewood (Howard LeVine and Ross Shugan, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Respondent-appellant, Antonio Lai, appeals the dismissal of his petition for rehearing as to his default judgment and seeks review of the underlying judgment for dissolution of marriage. He raises as issues whether: (1) the doctrine of res judicata precluded the circuit court from hearing his petition for rehearing on the merits; (2) the circuit court erred in defaulting respondent as a sanction for a discovery violation; and (3) the judgment for dissolution of marriage is so fundamentally unjust as to require reversal.

Carole and Antonio Lai were married on June 10, 1973. A daughter, Carla, was bom December 22, 1976. Carole filed a petition for dissolution of marriage on March 10, 1982. On November 12, 1982, the circuit court awarded Carole temporary custody of Carla; gave Carole exclusive use of the marital home held in joint tenancy by the couple; and directed Antonio to leave the house by December 1,1982.

On May 31, 1983, the court ordered Antonio to pay $45 per week in temporary child support to Carole. After several attorney substitutions, Antonio filed a motion in June 1983, seeking to take Carla to Italy to visit her dying grandmother. Orders entered July 15 and July 26, 1983, directed both parties to accompany Carla to Italy for three weeks.

On August 23, 1983, Carole filed a petition for a rule to show cause alleging that, while in Italy, Antonio kidnapped Carla, in violation of the July court orders. An agreed order, dated September 29, 1983, required that the child be returned to Carole and Antonio’s visitation rights be restored to him. Antonio had the child returned to the United States in October; however, he remained in Italy until April 5, 1984. The order later was vacated after Carole alleged that she agreed to it under duress to ensure Carla’s release, and Antonio was ordered to pay all the attorney fees that Carole incurred while she attempted to locate Carla.

On December 29, 1983, the circuit court held a hearing and found Antonio in willful contempt of the July travel agreement. On January 31, 1984, the court found Antonio in violation of the child support order and sentenced him to one day in jail for every day the violation continued, retroactive to January 8, 1984. Also on January 31, 1984, pursuant to Carole’s request, the circuit court required Antonio’s employer to pay his employee pension over to Carole.

Carole’s attorney scheduled a deposition for Antonio on February 16, 1984. Antonio, still in Italy, failed to appear. Carole immediately filed a motion for sanctions against him and asked the court to set a date certain for the deposition. The court scheduled the deposition two days thereafter, on March 29, 1984, which Antonio again failed to attend. The court struck his pleadings and entered a default on April 2, 1984. On April 13, 1984, Antonio’s then counsel, Michael Penn, petitioned that Carole pay his fees and filed a motion to withdraw alleging that Antonio failed to maintain communication with him. A notation on the fee petition states that a mailgram was sent to Antonio in Italy on March 31, 1984. Further, the petition shows that Penn maintained a correspondence with Antonio and attempted to keep his client fully abreast of the developments in the litigation, including the receipt of a Supreme Court Rule 201(k) letter. (107 Ill. 2d R. 201(k).) Another attorney substituted as Antonio’s counsel.

A prove up on the default was held on May 1, 1984. The court entered judgment, making the following dispositions: (1) sentenced Antonio to 118 days in jail; (2) provided Carole with custody of Carla with no visitation; (3) gave Carole the marital home and the family car, both owned jointly by the couple; and (4) incorporated all prior orders into the judgment. Antonio’s attorney fee petition was to be heard separately with a later hearing date. Antonio filed a motion to set aside the judgment on May 10, 1984, alleging that he did not know he was unrepresented at the time the default was entered; his limited knowledge of the English language rendered communication with his attorney difficult; he remained in Italy because his attorney told him he would be arrested if he returned; and he returned to the United States on the advice of an Italian lawyer. Carole objected on the ground that the default had been entered more than 30 days before the motion was filed. The circuit court denied the motion on September 27, 1984. Antonio filed a petition to vacate the order pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1401) (Code), on December 5, 1984, which was denied. On appeal from that order to this court, we ruled that the orders theretofore entered were not yet appealable.

On March 18, 1988, the attorney fee petition was disposed of by an order which directed Antonio to pay Penn $900. Subsequently, he filed a petition for rehearing under section 2 — 1203 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—1203), alleging that he was improperly defaulted as a discovery sanction and attacking the substantive provisions of the dissolution order. On November 1, 1988, the circuit court ruled that, under the doctrine of res judicata, the May 1, 1984, order could not be considered since the issues had been dealt with during the arguments on the pre-appeal motions. Counsel objected that the section 2 — 1401 petition was a nullity since judgment only became final on March 18, 1988, with the disposition of the attorney fee issue.

Antonio initially contends that the circuit court erred when it refused to hear the merits of his petition for rehearing under section 2 — 1203 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—1203).

Antonio’s first motion, filed on May 10, 1984, following default and judgment, was an unlabeled petition to set aside judgment, which appears to fall under section 2 — 1301(e) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—1301(e)). The motion raised Antonio’s lack of counsel and inability to adequately speak English, among other issues. After this motion was denied, Antonio filed a section 2 — 1401 petition alleging that the child support arrearage figure included in the dissolution judgment was fraudulent. He also challenged the substantive aspects of the divorce decree in regard to valuations of both the home and the marital assets and expenditures, supported by an affidavit stating that he complied with the temporary child support by paying $450. He averred that he was in Italy during the pendency of the litigation and was led to believe that no activity was being undertaken in the case. Attached to the affidavit were copies of checks made out to Carole signed by Antonio, totaling $505 in addition to two checks to Carole from Antonio’s employer, representing the pension plan. These checks totaled $8,630.25.

Antonio maintains here, as he did below, that the December 5, 1984, section 2 — 1401 petition should not have been ruled upon, since the dissolution judgment did not become fully adjudicated until March 18, 1988. (In re Marriage of Lentz (1980), 79 Ill. 2d 400, 403 N.E.2d 1036.) Section 2 — 1401 is a procedural device to vacate a final order or judgment where it would achieve justice and fairness while avoiding an unconscionable result. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381; Ill. Rev. Stat. 1987, ch. 110, par. 2—1401.) We are of the opinion that Antonio’s section 2 — 1401 petition to set aside the judgment was premature and should have been dismissed. See Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 470 N.E.2d 290.

After the judgment became fully adjudicated, respondent filed a timely petition for rehearing under section 2 — 1203 of the Code, alleging that (1) the court improperly defaulted the respondent; (2) the judgment was contrary to all applicable law; (3) the trial judge was vindictive toward the respondent; (4) the award of attorney fees was against the manifest weight of the evidence; and (5) other aspects of the dissolution of judgment, namely, visitation, pension distributions and the contempt sentence, were contrary to both the applicable law and the evidence of the case. The circuit court ruled that the appealability of the May 1, 1984, judgment “does not invalidate the adjudication of the issues and the reality of all that, exists in orders [and preappeal orders, including the post-trial hearings].” The court held that the doctrine of res judicata applied to all the issues presented in the petition for rehearing except the issues as to Penn’s attorney fees. Consequently, the petition for rehearing was dismissed on res judicata principles as to all issues except attorney fees; and, the circuit court denied the petition for rehearing as to these fees, specifically finding that Penn “had a terrible situation to deal with. *** [A]nd he did it the best he could.”

Our supreme court has ruled that until all ancillary issues of a dissolution proceeding are resolved, the petition is not fully adjudicated. (In re Marriage of Leopando (1983), 96 Ill. 2d 114, 119, 449 N.E.2d 137 (Leopando).) Here, too, the pre-March 18, 1988, orders did not fully adjudicate the dissolution proceedings. Leopando has been construed in several appellate court decisions as precluding consideration of issues which may be interrelated until all have been decided, including those situations where attorney fees are still under consideration. (In re Marriage of Derning (1983), 117 Ill. App. 3d 620, 453 N.E.2d 90; Pruitt v. Pruitt (1984), 129 Ill. App. 3d 50, 471 N.E.2d 1051; In re Marriage of Piccione (1987), 158 Ill. App. 3d 955, 511 N.E.2d 1157.) In Piccione, the appellate court observed (158 Ill. App. 3d at 963):

“Since attorney fees are dependent upon and integrally related to decisions regarding the financial resources of each of the parties, a disposition of their allocation should be made before the reviewing court can properly assess the trial court’s decision regarding the child-support orders.”

Of course, here the issue is not finality for purposes of appeal, but finality for purposes of res judicata, based upon the fact that post-order motions were made and ruled upon before the attorney fee issue had been resolved. In Leopando our supreme court noted (96 Ill. 2d at 119):

“A petition for dissolution advances a single claim; that is, a request for an order dissolving the parties’ marriage. The numerous other issues involved, such as custody, property disposition, and support are merely questions which are ancillary to the cause of action. (See In re Marriage of Lentz (1980), 79 Ill. 2d 400, 409 (Ward, J., concurring).) They do not represent separate, unrelated claims; rather, they are separate issues relating to the same claim. In fact, it is difficult to conceive of a situation in which the issues are more interrelated than those involved in a dissolution proceeding. Should the trial court decline to grant the petition for dissolution, no final relief may be obtained relevant to the other issues involved. On the other hand, where a dissolution of marriage is granted, a determination as to which party receives custody will necessarily affect how much, if any, support and maintenance are paid. Practically speaking, then, until all of the ancillary issues are resolved, the petition for dissolution is not fully adjudicated.” (Emphasis added.)

The circuit court in the present case, in order to fully adjudicate the petition for dissolution and its ancillary issues prior to the award of attorney fees, was required to consider the parties’ financial resources. This issue was clearly interrelated with issues previously considered, including child support, Carole’s attorney fees, and disposition of valuable assets, such as the marital home, automobile and Antonio’s pension proceeds.

Does it make a difference that the issue remaining to be decided in 1988 was the amount of money due as fees for Antonio’s own lawyer, Michael Penn? The petition for fees sought payment from Carole, noting that she “is employed and earns a substantial salary, and with the division or contemplated division of marital assets is well able to pay,” whereas Antonio was unemployed. Carole objected, relying upon section 508(a) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 508(a)), which authorizes the imposition of attorney fees for maintenance or defense of any proceeding under the Act “after considering the financial resources of the parties,” among other factors. (Emphasis added.) (See, e.g., In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 1121, 421 N.E.2d 1308; In re Marriage of Stewart (1979), 79 Ill. App. 3d 1125, 398 N.E.2d 1199.) To foreclose consideration of the totality of interrelated circumstances by construing post-order determinations, rather than post-judgment determinations on the basis of res judicata principles would preclude the full and fair adjudication of issues which may bear an interrelationship, if not an interdependency, and would avoid the prescribed consideration of “all matters incident to the dissolution in a single judgment.” (Emphasis added.) In re Marriage of Cohn (1982), 93 Ill. 2d 190, 197-98, 443 N.E.2d 541.

The doctrine of res judicata contemplates that “a cause of action finally determined between the parties on the merits, by a court of competent jurisdiction, cannot again be litigated,” except on appeal. (Cooper v. Cooper (1978), 59 Ill. App. 3d 457, 462, 375 N.E.2d 925.) In the present circumstances, all matters incident to the dissolution were not concluded and, therefore, not final. The doctrine of res judicata should not have been applied to dismiss the 1988 petition for rehearing. The circuit court should have ruled on the merits of respondent’s petition, which in fact raised some new issues not previously raised in the earlier untimely petitions. The cause must be reversed and remanded for proceedings consistent with this opinion.

In view of our disposition in this matter, we are not, at this time, required to consider other issues raised in this appeal.

Reversed and remanded.

BILANDIC, P.J., and DiVITO, J., concur.


text:
    GLORIA LINTON, Plaintiff-Appellee, v. CHICAGO MOTOR CLUB, INC., Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—3614
    Opinion filed December 19, 1989.

      Christine Smith and John O’Connor, both of Chicago, for appellant.
    Spencer W. Schwartz & Associates, of Chicago (Paul Armstrong, of counsel), for appellee.

      Defendant in this case is, more properly, Chicago Motor Club Insurance Co.; it was incorrectly sued as “Chicago Motor Club, Inc.”

   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff Gloria Linton sought to reform an insurance policy issued to her by Chicago Motor Club Insurance Co. (defendant), which was authorized to write automobile insurance policies in Illinois. Cross-motions for summary judgment were filed by each party. Plaintiffs motion was allowed, and defendant’s motion was denied. On appeal, defendant claims error in the circuit court’s reformation of the insurance policy, effected by increasing uninsured motorist and underinsured motorist benefits.

Around July 14, 1983, defendant’s agent, Herb Scally, gave a written quotation for automobile insurance coverage to plaintiff which included, inter alia, two alternative options: bodily injury liability limits of $15,000 each person and $30,000 each occurrence ($15,000/$30,000), at a premium of $70, with uninsured motorist protection limits of $15,000/$30,000 at an additional premium; or bodily injury liability limits of $25,000/$50,000, at a premium of $85, with uninsured motorist protection limits of $15,000/$30,000 (at the same additional premium quoted in the first option). The written quotation also provided designated spaces for the limits and corresponding premium for underinsured motorist protection, which were left blank under both of the options offered to plaintiff. Plaintiff elected coverage with $15,000/$30,000 bodily injury liability limits and was issued a policy, effective from July 14, 1983, to January 1, 1984, which included bodily injury liability, uninsured motorist, and underinsured motorist limits of $15,000/$30,000.

On July 22, 1983, plaintiff was seriously injured in an automobile accident resulting in damages which exceeded the $15,000 bodily injury limits available under the insurance policy of the at-fault driver. After exhausting the insurance coverage of the at-fault driver in a settlement, plaintiff demanded from defendant increased underinsured motorist benefits in the amount of $25,000/$50,000, asserting Scally’s quotation to her violated section 143a — 2 of the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1983, ch. 73, par. 755a—2). Defendant refused. This action followed, seeking to reform the policy to reflect uninsured motorist and underinsured motorist limits of $25,000 each person/$50,000 each occurrence.

Plaintiffs motion for summary judgment was supported by an affidavit in which she averred, in part:

“If I had been aware that the increased coverage quoted would also give me the opportunity to purchase increased coverage to me under my uninsured motorist and underinsured motorist coverage at a comparable increase in rates, I would have elected to purchase the increased liability, uninsured and underinsured motorist coverage from Chicago Motor Club.”

The circuit court struck that portion of plaintiff’s affidavit in which she claimed she would have elected to purchase increased coverage if offered. The court then found defendant’s alternative written quotation of bodily injury limits of $25,000/$50,000 with uninsured motorist limits of $15,000/$30,000 constituted a “faulty offer” to plaintiff under section 143a — 2 of the Code. Concluding that defendant’s failure to offer additional uninsured motorist coverage with limits of $25,000/$50,000 violated the statute, the circuit court granted plaintiff’s, and denied defendant’s, motion for summary judgment. The court then reformed the insurance policy to reflect increased limits of $25,000/$50,000 uninsured motorist and underinsurance coverage. Defendant appeals. Whether defendant’s offer of additional uninsured/underinsured motorist coverage under section 143a — 2 of the Code was faulty, or not, we conclude that the circuit court erred in reforming the insurance policy to reflect increased uninsured/underinsured motorist coverage limits of $25,000/$50,000, for reasons which follow.

Plaintiff argues that because defendant failed to offer uninsured motorist coverage in an amount equal to the offer of bodily injury liability coverage ($25,000/$50,000), the policy must be reformed to reflect such additional coverage in that increased amount. Defendant contends that the amount of bodily injury liability coverage actually retained by an insured determines the maximum amount of uninsured (and underinsured) motorist coverage available; it concludes that, because plaintiff selected bodily injury liability limits of $15,000/ $30,000 and rejected increased limits of $25,000/$50,000, she is entitled only to $15,000/$30,000 of uninsured motorist coverage.

Plaintiff relies on Logsdon v. Shelter Mutual Insurance Co. (1986), 143 Ill. App. 3d 957, 493 N.E.2d 748, to support the reformation of the policy as ordered here by the circuit court. In Logsdon, the Third District Appellate Court attempted to determine the amount of increased coverage to be implied by law where an insurer failed to offer underinsured motorist coverage as required by the Code. The insured in that case sought the implication as a matter of law of underinsured motorist coverage in an amount sufficient to fully cover his damages or, alternatively, reformation of the policy up to the maximum bodily injury coverage offered by the insurer for the last renewal period prior to the injury. The insurer, on the other hand, sought to limit the underinsured motorist coverage to be implied by law to the amount of the insured’s uninsured motorist coverage. Preferring to avoid an unlimited or “open-ended” remedy, the court held that the amount of increased coverage implied by law should equal the maximum amount of bodily injury liability limits available from the insurer at the time the offer was made. (Logsdon, 143 Ill. App. 3d at 964.) The court found it important that section 143a — 2 was intended to protect consumers, and considered the maximum amount of coverage available from an insurer to be an appropriate remedy where the insurer failed to make a sufficient offer under the statute. Logsdon, 143 Ill. App. 3d at 961, 964.

The remedy adopted by the Logsdon court was rejected four months later by the fifth district in Fuoss v. Auto Owners (Mutual) Insurance Co. (1986), 148 Ill. App. 3d 526, 499 N.E.2d 539, aff’d (1987), 118 Ill. 2d 430, 516 N.E.2d 268. The appellate court in Fuoss reformed an insurance policy and implied underinsured motorist coverage in an amount equal to the bodily injury liability limits selected by the insured. Noting that bodily injury liability limits of $500,000/ $1,000,000 commonly were available from insurers, it found the “limitation” on the remedy selected by the Logsdon court to be illusory. 148 Ill. App. 3d at 535.

This conflict between appellate court districts was resolved implicitly by our supreme court in its review of Fuoss. (Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill. 2d 430, 516 N.E.2d 268 (Fuoss).) In Fuoss, the insured sought reformation of an insurance policy based on an alleged violation of section 143a — 2, namely, the insurer’s failure to offer underinsured motor vehicle coverage as part of his policy. The policy he purchased included bodily injury liability limits of $25,000/$50,000, and uninsured motorist insurance of $15,00/$30,000. The insured was injured in an automobile accident and eventually settled with the at-fault driver for $100,000, the maximum amount payable under the at-fault driver’s policy. Seeking additional amounts from his own insurer to cover all damages from the accident, the insured sought to reform his policy to include underinsurance. The insured there filed an affidavit similar to plaintiff’s affidavit here, to the effect that he would have purchased an amount of underinsured motorist coverage that would have been sufficient to cover his loss if he had known of the existence and the availability of underinsured motorist coverage (118 Ill. 2d at 432), which the court held to be too ambiguous. 118 Ill. 2d at 434.

The supreme court observed (Fuoss, 118 Ill. 2d at 434):

“Should we reform [the insured’s] policy in accordance with the Code, we could imply coverage at no more than either $15,000/$30,000 (as the circuit court did) — the amount of his uninsured limits — or $25,000/$50,000 (as the appellate court did) — the amount of his bodily injury liability insurance.”

Since the insured’s $100,000 settlement was greater than the $15,000 or $25,000 he could collect under either interpretation, the supreme court refused to grant further relief. Fuoss, 118 Ill. 2d at 434.

The Fuoss case did not decide which limit to apply (uninsured or bodily injury) for determining coverage to be implied by law; it did implicitly reject Logsdon, however, since no mention was made of that court’s remedy which provided coverage in amounts equal to the maximum bodily injury liability limits available from an insurer. (See Overbey v. Illinois Farmers Insurance Co. (1988), 170 Ill. App. 3d 594, 604, 525 N.E.2d 1076.) In determining the amount of increased underinsured motorist coverage to be implied by law in light of Fuoss, this court has stated that “the implied amount should equal either the amount of bodily injury liability coverage actually retained by the insured, or the amount of uninsured motorist coverage actually retained on the insured’s vehicle.” (Emphasis added.) Blake v. State Farm Mutual Automobile Insurance Co. (1988), 168 Ill. App. 3d 918, 923, 523 N.E.2d 85 (Blake).

In light of Fuoss and Blake, the maximum uninsured/underinsured motorist coverage which can be implied by law in this case is $15,000/$30,000, the amount of bodily injury liability coverage actually retained by plaintiff. The insurance policy at issue here already included those limits; the circuit court should not have reformed the policy to provide increased coverage.

Plaintiff’s attempted distinctions of Fuoss and Blake are unpersuasive. Moreover, some of the concerns enunciated in Fuoss are relevant here. As in Fuoss, allowing the reformation sought by plaintiff in this case “would permit [her] to choose, after the fact, underinsurance [and uninsured motorist] coverage in an amount greater than [she] originally selected for bodily injury liability coverage with the result that [plaintiff] would be providing more protection for [herself] than [she] was originally willing to extend to the general public.” (Fuoss, 118 Ill. 2d at 435.) Such an outcome would be “repugnant” to the court’s sense of justice. Fuoss, 118 Ill. 2d at 435.

Plaintiff next argues this court can presume that, based upon the legislative history of section 143a — 2, the insured would have chosen increased coverage if fully informed of its costs and benefits. Such a presumption, however, is speculative in nature and is proscribed under Fuoss. Plaintiff nevertheless suggests that, unlike Fuoss, the amount of additional coverage sought here is reasonably ascertainable from the written quotation and does not involve self-serving speculation on plaintiff’s part. Whether plaintiff would have chosen increased coverage, particularly since she rejected bodily injury liability insurance in the same amount in which she now seeks protection for herself, remains speculative. Plaintiff’s suggestion that she chose the lower bodily injury liability coverage solely because the offer of increased coverage did not have a corresponding offer of increased uninsured motorist limits also must be rejected.

Based on Fuoss and its subsequent interpretation in Blake, the maximum amount of uninsured/underinsured motorist coverage that could be implied by law was $15,000/$30,000, the amount of bodily injury liability actually retained by plaintiff. Entry of summary judgment for plaintiff, which reformed the insurance policy to reflect increased uninsured/underinsured motorist limits of $25,000/$50,000, was in error and must be reversed.

Reversed.

BILANDIC, P.J., and DiVITO, J., concur.

      In her brief, plaintiff also argues that defendant failed to offer underinsured motorist coverage. Under section 143a—2(5) (Ill. Rev. Stat. 1983, ch. 73, par. 755a—2(5)), defendant was no longer required to offer such coverage in policies such as that of plaintiff issued after July 1, 1983. For those policies, defendant is required to include underinsured motorist coverage in an amount at least equal to the total amount of uninsured motorist coverage provided in the policy (where the uninsured motorist coverage exceeds $15,000/$30,000). See Eipert v. State Farm Mutual Automobile Insurance Co. (1989), 189 Ill. App. 3d 630, 545 N.E.2d 497; Overbey v. Illinois Farmers Insurance Co. (1988), 170 Ill. App. 3d 594, 600-01, 525 N.E.2d 1076.

      The circuit court in the instant case correctly struck this portion of plaintiff’s affidavit based on Fuoss, wherein the supreme court rejected the strikingly similar affidavit. Fuoss, 118 Ill. 2d at 434-35.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS HALL, Defendant-Appellant.
    First District (4th Division)
    No. 1—86—3064
    Opinion filed December 21, 1989.

      Michael J. Pelletier and Thomas J. Long, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Kenneth T. McCurry, and Inez Toledo-Bargioni, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Curtis Hall, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12—14(a)(2)) and robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18—1) following a jury trial in the circuit court of Cook County. The trial judge sentenced defendant to the penitentiary for concurrent terms of 60 years on the aggravated criminal sexual assault conviction and 14 years on the robbery conviction.

On appeal, defendant contends that he was denied a fair trial due to the admission of irrelevant evidence. Defendant also contends that he was denied a fair trial because, during closing argument, the trial judge expressed his opinion that the State had proved beyond a reasonable doubt defendant’s guilt, and the prosecutor made improper and prejudicial remarks. Defendant lastly contends his extended-term sentence for robbery must be vacated.

We affirm, as modified.

Background

The record contains the following pertinent facts. Defendant was charged in a 15-count indictment with various offenses relating to criminal sexual assault, robbery, and kidnapping. Prior to trial, the State entered a nolle prosequi on all but four counts. Defendant was tried to a jury on aggravated criminal sexual assault based on the victim’s bodily harm, robbery, kidnapping, and aggravated criminal sexual assault based on kidnapping.

The State’s evidence at trial is summarized as follows. On the afternoon of July 30, 1984, the victim, a 16-year-old girl, left her home to pick up a relative, her godparents’ grandchild, at school. After she exited a bus near 120th Street and Racine Avenue, she began walking on a dirt road towards Racine Avenue. As she walked, she saw defendant appear approximately 20 feet in front of her.

As they neared each other, defendant crossed the victim’s path. He then wrapped his arms around her neck, choking her and inflicting pain. When she attempted to escape, he tightened his grip so that she could not breathe. He dragged her backwards into a vacant lot. He pulled her through the lot and under a broken fence, and into an area of tall bushes and trees.

Defendant threw the victim to the ground. She screamed for her mother; defendant struck her forehead with his fist. Defendant then pulled the victim’s pants down and forcibly subjected her to sexual intercourse. Defendant then sat next to the victim for approximately five minutes, took her pants off, again punched her face, and subjected her to sexual intercourse a second time. Defendant then took the victim’s social security card, told her to “shut up” and “stay there,” and then departed.

Seconds after defendant left, the victim got up and ran. She climbed over a barbed wire fence, sustaining injuries to her legs and hands. She found newspapers to cover the bottom half of her body. The victim ran to a nearby house where a woman assisted her and called the police and the victim’s mother.

Police officers took the victim to Roseland Hospital, where she was met by her mother and other relatives. Her mother observed the victim’s cuts and bruises. The victim gave Chicago police officer Leroy Johnson a description of the defendant. The victim was then taken to a medical clinic at 111th and State Streets. There the treating physician noticed swelling around the victim’s neck and bruises on her forehead. As part of the examination, the physician prepared a Vitullo kit, a medical test used in sexual assault investigations, which included samples taken from the victim’s vagina.

A police criminologist examined the Vitullo kit, as well as blood and saliva samples from both the victim and defendant. Semen was present in the samples. The criminologist concluded essentially that she could not specifically identify the semen as defendant’s. However, she also concluded that the test did not exclude defendant as the source of the semen. She stated that the test results were consistent with defendant being the source of the semen.

The victim subsequently identified defendant’s photograph and swore out a criminal complaint. Defendant was arrested on September 16, 1984. A lineup was held the next day; the victim identified defendant.

Defendant’s case consisted of an examination of Officer Johnson, to impeach his testimony regarding defendant’s description.

The jury convicted defendant of aggravated criminal sexual assault based on the victim’s bodily harm, and robbery. The jury acquitted defendant of kidnapping and aggravated criminal sexual assault based on kidnapping.

At the sentencing hearing, the trial judge denied defendant’s post-trial motion. At the close of the hearing, the trial judge sentenced defendant to the penitentiary for a term of 60 years on the aggravated criminal sexual assault conviction, and an extended term of 14 years on the robbery conviction, the sentences to run concurrently. Defendant appeals.

Opinion

I

Defendant contends that he was denied a fair trial due to the admission of irrelevant evidence. He claims that the results of the blood and enzyme tests were irrelevant to whether he committed the offense.

The general test for the admissibility of evidence is its relevance. Evidence is admissible where it fairly tends to prove the particular offense charged. Any circumstances which tend to make the proposition at issue more or less probable may be put into evidence. Evidence is therefore relevant where the fact or circumstance offered tends to prove or disprove a disputed fact or to render the matter at issue more or less probable. Relevance can also be established by means of inference. People v. Jones (1982), 108 Ill. App. 3d 880, 884-85, 439 N.E.2d 1011, 1015-16.

The determination of whether evidence is relevant rests in the discretion of the trial court. The trial court’s decision will not be disturbed on review absent an abuse of discretion to the prejudice of defendant. Even where there is error, if the evidence of guilt is overwhelming, i.e., it is so convincing that the jury would have convicted even if the irrelevant evidence had been excluded, reversal is not required. Jones, 108 Ill. App. 3d at 884, 439 N.E.2d at 1015.

As we mentioned earlier, the blood and enzyme tests could not identify defendant as the particular source of the semen. Rather, all that the test could do, statistically, was place defendant in a large group of possible sources of the semen, between 40% and 60% of the black male population. Defendant argues that his membership in such a large category of possible offenders is not relevant to whether he committed the offense. Thus, defendant concludes that the criminologist’s testimony that the test results were consistent with defendant being the offender were irrelevant and prejudicial.

We disagree. “This court and others have recognized heretofore that evidence of hair, blood, and semen found at the scene of the crime may be admitted, with appropriate foundation, even though its probative value may not be considerable.” (People v. Johnson (1976), 37 Ill. App. 3d 328, 332, 345 N.E.2d 531, 535 (and cases cited therein).) The evidence in the case at bar was relevant insofar as it tended to exclude other persons and failed to exclude defendant as a possible offender. (See Johnson, 37 Ill. App. 3d at 332, 345 N.E.2d at 534.) Here, as in People v. Wright (1989), 186 Ill. App. 3d 159, 542 N.E.2d 367, the victim’s identification of defendant, with the other corroborating evidence, “served to define the group of possible assailants (one), and the tests supported the identification by showing that he could not be ruled out. Thus, the blood group tests were admissible.” Wright, 186 Ill. App. 3d at 165, 542 N.E.2d at 371.

As our supreme court noted in People v. Free (1983), 94 Ill. 2d 378, 416, 447 N.E.2d 218, 236, “[w]e must not confuse the distinction between the admissibility of evidence and its probative value.” In the case at bar, defendant was entitled to argue to the jury the lack of any connection between him and the semen. He could have stressed the weak probative value of the test results, but he could not have barred their admission. (See Free, 94 Ill. 2d at 417, 447 N.E.2d at 237.) We hold that the trial court did not abuse its discretion in admitting into evidence the blood and enzyme test results, and the criminologist’s opinion based on those results.

II

Defendant contends he was denied a fair trial also because, during closing argument, the trial judge expressed his opinion that the State had proved beyond a reasonable doubt defendant’s guilt.

Defendant misreads the record. In a supplemental record, a court reporter certified as follows:

“I reported in shorthand the proceedings had in the above entitled cause; that page 373 [page 458 of the record on appeal] has been corrected from ‘Not every piece of evidence has been proved beyond a reasonable doubt, certainly every piece has been proved beyond a reasonable doubt.’ To, ‘Not every piece of evidence has been proved beyond a reasonable doubt, certainly every piece has to be proved beyond a reasonable doubt.’ which I hereby certify is a true and correct transcript of the proceedings ***.” (Emphasis added.)

We hold that the trial judge’s comments did not deny defendant a fair trial.

Ill

Defendant contends he was denied a fair trial also because the prosecutor made improper and prejudicial remarks during closing argument. He cites four instances of this alleged misconduct. A prosecutor has great latitude in presenting his or her closing argument. A reviewing court is reluctant to set aside a verdict based on remarks made during closing argument and does so only where the remarks are clearly prejudicial. In determining whether the remarks are prejudicial, a court must refer to the content of the language used, its relation to the evidence, and the effect of the argument on the rights of the accused to a fair and impartial trial. (People v. Franklin (1976), 42 Ill. App. 3d 408, 421, 355 N.E.2d 634, 645.) Also, the trial court is in a better position than a reviewing court to determine the prejudicial effect of a remark made during closing argument. Absent a clear abuse of discretion, its ruling should be upheld. People v. Smothers (1973), 55 Ill. 2d 172, 176, 302 N.E.2d 324, 327.

A

Defendant claims that the following remark by the prosecutor during closing argument was improper and prejudicial:

“Now ladies and gentlemen, the word reasonable doubt, has come up during the course of this trial. And I want you to understand something. We are not under an obligation to prove every piece of evidence that you heard from that stand, the testimony, beyond any reasonable doubt.”

The trial judge sustained defendant’s objection and instructed the jury with the remark discussed in Part II of this opinion. Thus the error, if any, was cured. See People v. Lloyd (1981), 93 Ill. App. 3d 1018, 1025, 418 N.E.2d 131, 136.

B

Defendant claims that the prosecutor made “personal attacks on the integrity and tactics of defense counsel” and, therefore, were beyond the scope of proper argument. During his closing rebuttal argument, the prosecutor urged the jury not to allow defense counsel to put a “guilt trip” on them to obtain an acquittal.

The record shows that defense counsel invited these remarks. Defense counsel exhorted the jury not to judge defendant harshly. He even invoked the ancient admonition “Judge not [lest] ye be judged.” Since defense counsel invited the prosecutor’s remark, defendant cannot now rely on the statement as error. See People v. Vriner (1978), 74 Ill. 2d 329, 344, 385 N.E.2d 671, 677.

C

The prosecutor also argued that one reason why the victim’s identification of defendant was accurate was because his “face would be the last face she might ever see on this earth.” Defendant argues that this statement was not based on the evidence.

We disagree. It is quite settled that “a prosecutor may reflect unfavorably upon an accused and indulge in invective in urging the fearless administration of the law, based upon the evidence and legitimate inferences drawn from it.” (People v. Hovanec (1979), 76 Ill. App. 3d 401, 424, 394 N.E.2d 1340, 1356.) In the case at bar, the defendant literally snatched the victim from the street, choked her and treated her violently, and struck her twice. After reviewing the record, we conclude that the complained-of remark was a legitimate inference drawn from the evidence.

D

Defendant assigns error to the following statement: “Pam Fish [the police criminologist] said that the enzymes are consistent with what you could expect to find if [defendant] had raped [the victim].” Defendant claims that this remark was not based on the evidence.

We disagree. The criminologist did testify that the blood and enzyme test results were consistent with defendant being the source of the semen found in the victim. That the semen might have come from another source did not preclude the argument that it came from defendant. The State was not prevented from arguing and drawing the inference which connected the victim with defendant. (See People v. Smith (1974), 19 Ill. App. 3d 138, 145, 310 N.E.2d 818, 823.) We hold that none of the prosecutor’s remarks, considered individually or cumulatively, denied defendant a fair trial.

IV

Defendant lastly contends that his extended-term sentence of 14 years on the robbery conviction must be vacated. The State concedes error. (See People v. Jordan (1984), 103 Ill. 2d 192, 203-06, 469 N.E.2d 569, 574-75.) Robbery is a Class 2 felony. (Ill. Rev. Stat. 1983, ch. 38, par. 18—1(b).) The prescribed sentence for a Class 2 felony is a prison term of not less than three years and not more than seven years. (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8—1(a)(5).) We reduce defendant’s sentence on the robbery conviction from 14 years to 7 years. 107 Ill. 2d R. 615(b).

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed as modified by this opinion.

Affirmed, as modified.

JIGANTI, P.J., and McMORROW, J., concur.


author: JUSTICE JOHNSON

text:
    HOWARD SAFFOLD et al., Plaintiffs-Appellees, v. THE CITY OF CHICAGO et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—88—2496
    Opinion filed December 21, 1989.

      Margaret A. Daley, of Kirkland & Ellis, of Chicago, for appellant Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago.
    David R. Kugler, of Chicago, for appellees Frank Lee and Edgar Gosa.
   JUSTICE JOHNSON

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County granting the summary judgment motion of plaintiffs, Frank Lee and Edgar Gosa. Howard Saffold is not a party to this appeal. The trial court found that the crime prevention work performed by plaintiffs was creditable service pursuant to the Policemen’s Annuity and Benefit Fund Act of the Illinois Municipal Code (Ill. Rev. Stat, 1987, ch. 1081/2, par. 5—214(c) (hereinafter Act)). Defendants, City of Chicago, the Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago (hereinafter Board), and Richard Jones, executive director of the Board, present the following issues on appeal: (1) whether employment by the League to Improve the Community (hereinafter League) constitutes creditable service for purposes of the Act, and (2) whether the Board acted arbitrarily in denying plaintiffs’ request to contribute money to the Police Pension Fund for their respective leaves of absence.

We affirm.

Plaintiff Lee has been a member of the Chicago police force since March 1, 1965. He was granted a leave of absence from the force from November 16, 1974, to November 28, 1977, to work for the League. Plaintiff Gosa has been a Chicago police officer since July 19, 1965. He was also granted an approved leave of absence from November 17, 1974, to November 14, 1976, in order to work for the League. According to the record, plaintiffs coordinated crime prevention activities and educational programs for low income, inner-city communities during their tenure with the League.

The League was a program funded in part by the Federal government through the Law Enforcement Assistance Administration (hereinafter LEAA). The LEAA was established by the Crime Control Act of 1973 (42 U.S.C. §3701 et seq. (1982)). The stated purpose of the Crime Control Act, which was later repealed, was “to assist State and local governments in strengthening and improving law enforcement and criminal justice at every level by Federal assistance.” 42 U.S.C. §3701 (1982).

On September 23, 1984, plaintiffs sent a letter to defendant Jones requesting official computations of their outstanding pension payments during their respective leaves of absence. According to plaintiffs, contributing to their pensions for the period in which they took their leaves of absence would enable them to have uninterrupted police service records for purposes of pension distribution.

On March 27, 1986, the Board denied plaintiffs’ request. Subsequently, plaintiffs filed a request seeking an administrative review of the Board’s decision. Plaintiffs’ request to contribute to the fund was again denied. The Board did, however, vote to allow Howard Saffold full credit for his leave of absence with the League when he served as president of the League pursuant to subparagraph (b) of section 5— 214 of the Act. Ill. Rev. Stat. 1987, ch. IO8V2, par. 5-214(b).

Plaintiffs later filed a motion for summary judgment which was granted on July 12, 1988. The trial court found that plaintiffs’ work with the League was within the ambit of section 5 — 214(c) of the Act (Ill. Rev. Stat. 1987, ch. lOSVa, par. 5 — 214(c)), and that the Board had acted arbitrarily in denying plaintiffs’ request. It is from this decision that defendants appeal.

Defendants first contend that the trial court erred in granting summary judgment in favor of plaintiffs. Defendants argue that plaintiffs are not entitled to credit for service under section 5 — 214(c) of the Act since employment by the League does not constitute work for the county, State or Federal government. Defendants point out that there was no employer-employee relationship established between plaintiffs and the Federal government as required by the statute. Section 5 — 214 provides in pertinent part, as follows:

“Any participant in this fund *** who has rendered service as a member of the police department of the city for a period of 5 years or more is entitled to credit for the various purposes of this Article for service rendered prior to becoming a member or subsequent thereto for the following periods:
(c) While performing safety or investigative work for the County in which such city is principally located or for the State of Illinois or for the Federal government, on leave of absence from the department of police.” Ill. Rev. Stat. 1987, ch. lOS1^, par. 5 — 214(c).

Pension statutes are to be liberally construed in favor of those who benefit under them. (People ex rel. Anastasia v. Civil Service Comm’n (1973), 10 Ill. App. 3d 583, 586.) “The general assembly in passing the pension law endeavored to provide for the aged policemen who have served the city for a long period of time. *** It was adopted for a humane purpose and should be given a liberal construction.” Donahue v. Board of Trustees (1931), 263 Ill. App. 568, 572.

The trial court, in construing the section, found that plaintiffs’ work was of a safety or investigative nature and that plaintiffs did in fact work for the Federal government by participating in the League’s program. Even assuming, arguendo, that plaintiffs were not employees of the Federal government, the court noted that subparagraph (c) does not require that the officers be employees. Subparagraph (c) mandates that the officers perform safety or investigative work for the county, the State or the Federal government. The court construed the subparagraph as not requiring an employer-employee relationship. We agree. If the legislature had intended as a condition precedent to receiving credit for other services, under this particular subparagraph, that an employer-employee relationship would be established, specific language to that effect would have been included in the subparagraph.

For example, as plaintiffs correctly point out, in subparagraph (b) of the section, an officer may receive credit for service if the officer is an “employee” of the Policemen’s Annuity and Benefit Fund. (Ill. Rev. Stat. 1987, ch. 1081/2, par. 5 — 214(b).) Subparagraph (c), however, does not require that the officer be an “employee” of the county, the State or the Federal government. We find, therefore, that plaintiffs were within the ambit of the section.

Next, defendants contend that summary judgment was improperly entered in favor of plaintiffs since the Board had not acted arbitrarily in denying plaintiffs credit for service with the League. The trial court set aside the Board’s decision, finding that the summary denial of plaintiffs’ request without giving them the opportunity to be heard, present evidence, or have counsel present at the hearing was in effect a denial of plaintiffs’ due process rights. We also find the record bereft of any indication that counsel for plaintiffs was present at the time of the hearing, that plaintiffs were heard, or that plaintiffs were afforded the opportunity to present evidence. Under these circumstances, we find that the trial court properly considered due process violations.

The trial court also found that the Board acted arbitrarily in giving section 5 — 214(c) a narrow construction. As previously held, pension statutes are to be given broad construction in favor of those who benefit under them. (People ex rel. Anastasia v. Civil Service Comm’n (1973), 10 Ill. App. 3d 583, 586; Donahue v. Board of Trustees (1931), 263 Ill. App. 568, 572.) Erroneous, arbitrary, or unreasonable construction of a statute constitutes grounds for setting aside an administrative decision. Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, 331.

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

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    MARK HOPPA, Plaintiff-Appellee, v. JOHN P. SCHERMERHORN, a/k/a J.P. Schermerhorn, et al., Defendants-Appellants (Clifford D. Kemper et al., Defendants).
    First District (4th Division)
    No. 1—89—0233
    Opinion filed December 21, 1989.
    Rehearing denied January 18, 1990.
    Richard L. Hoffman, of Chicago, for appellants.

      Mark S. Smith and Stephen B. Engelman, both of Engelman & Smith, of Skokie, for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Mark Hoppa, secured a default judgment against defendants J.P. Schermerhorn & Company, and J.P. Schermerhorn, individually. Thereafter, Schermerhorn & Company was added to the judgment pursuant to Hoppa’s section 2 — 401(b) motion to correct a misnomer. (Ill. Rev. Stat. 1987, ch. 110, par. 2—401(b).) J.P. Schermerhorn & Company, Schermerhorn & Company, and J.P. Schermerhorn, individually, moved to vacate the default judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401). The trial court denied the motion, and Schermerhorn & Company and J.P. Schermerhorn, individually, appeal from the trial court’s decision. They contend that the default judgment entered against them is void for want of personal jurisdiction. J.P. Schermerhorn & Company is not a party to this appeal.

To arrive at appeal, the parties took the following procedural path. In February of 1984, the plaintiff, Mark Hoppa, filed his initial action for injuries he sustained in a traffic accident. At that time, neither J.P. Schermerhorn & Company nor J.P. Schermerhorn, individually, was named as a defendant. In February of 1985, the court granted Hoppa leave to amend his complaint to implead defendant J.P. Schermerhorn & Company. Hoppa amended the complaint and served process on J.P. Schermerhorn & Company. In April of 1985, J.P. Schermerhorn & Company responded to the amended complaint with an appearance and answer. J.P. Schermerhorn & Company’s attorney later sought leave to withdraw from representation of the company. The court granted the attorney’s request, Hoppa subsequently deposed J.P. Schermerhorn as an officer of J.P. Schermerhorn & Company. On July 1,1985, J.P. Sehermerhom & Company was dissolved. On the same day Schermerhorn & Company was incorporated. On July 29, 1986, the court granted Hoppa leave to file a second amended complaint with summons to issue against J.P. Schermerhorn, individually Hoppa attempted service on the individual, J.P. Schermerhorn; however, the summons was returned in August of 1986 marked “not served.”

J.P. Schermerhorn, individually, never filed an appearance or an answer to Hoppa’s second amended complaint. In October of 1987, Hoppa settled with the defendants initially named in his suit. At that time the court entered a default judgment against defendant J.P. Schermerhorn & Company for failure to appear. The court also entered a default judgmerit against J.P. Schermerhom, individually, even though he had not been served with process, nor had he filed an appearance. In January of 1988, Hoppa filed a section 2 — 401(b) motion to amend the judgment, alleging that J.P. Schermerhom & Company was a misnomer for Schermerhom & Company. The court granted Hoppa’s motion and added Schermerhom & Company to the judgment order. Hoppa filed a non-wage garnishment against Schermerhom & Company, J.P. Schermerhom & Company, and J.P. Schermerhom, who then filed a section 2 — 1401 petition to vacate the default judgment. The court denied the motion, and J.P. Schermerhom, individually, and Schermerhom & Company filed this appeal.

J.P. Schermerhom, individually, and Schermerhom & Company allege that the court lacked the personal jurisdiction necessary to enter a judgment against them, therefore, the default judgment is void. We agree. To have a valid judgment, the court must have personal jurisdiction over the parties. (In re Marriage of Verdung (1989), 126 Ill. 2d 542, 535 N.E.2d 818.) The personal jurisdiction may be acquired through statutorily directed service of process, or through the party’s general appearance in the court. In the present case, neither of the appellants was served, nor did either file an appearance in court.

Hoppa does not deny that J.P. Schermerhom, individually was never served. Hoppa’s contention is that the court acquired jurisdiction over J.P. Schermerhom through his general appearance before the court. Hoppa cites to the case of Mauro v. Peterson (1984), 122 Ill. App. 3d 466, 461 N.E.2d 564, to support his argument that any action a litigant takes which recognizes the case as being in court will amount to a general appearance unless the action is for the sole purpose of objecting to jurisdiction. Hoppa notes that J.P. Schermerhom appeared at a deposition in November of 1985 without contesting jurisdiction. Hoppa does not offer any authority, however, to support the proposition that a litigant’s appearance at a deposition amounts to action recognizing a case as being in court. Furthermore, the deposition to which Hoppa refers occurred before J.P. Schermerhom, individually, was joined in the lawsuit. In Hoppa’s own statement of facts before this court, he acknowledges that the notice of deposition was served upon J.P. Schermerhom & Company. Presumably, J.P. Schermerhom appeared at the deposition, not individually but as an officer of J.P. Schermerhom & Company.

Hoppa’s further argument is that J.P. Schermerhorn’s general appearance before the court is evidenced through an affidavit J.P. Schermerhom provided to the court in which he stated he had attended court on numerous occasions during the pendency of the proceedings. J.P. Schermerhorn submitted the affidavit, part of the record of the court, in support of his argument that the default judgment should be vacated. It is not clear, however, whether J.P. Schermerhorn meant to attest that he appeared in court on behalf of himself, or on behalf of J.P. Schermerhorn & Company, or merely that he was present in the courtroom during many of the proceedings. Hoppa cites to the case of Lakeview Trust & Savings Bank v. Estrada (1985), 134 Ill. App. 3d 792, 480 N.E.2d 1312, for the proposition that a defendant’s multiple in-court appearances during the original action, without contesting jurisdiction, constitutes a waiver of the defendant’s right to contest jurisdiction on the basis of lack of service. In Lakeview Trust, however, the defendant’s appearance in court as a respondent to the plaintiff’s motion is noted in the subsequent court order. In the present case, there are no statements of the court to confirm J.P. Schermerhom’s appearance before the court between the time Hoppa filed his second amended complaint, naming J.P. Schermerhorn, individually, and the time the court entered the default judgment. Moreover, in Lakeview Trust, the court’s notation that the plaintiff appeared in response to a motion indicates the plaintiff’s participation in the proceedings. In the present case, there is no evidence that J.P. Schermerhorn, individually, participated in the proceedings. Hoppa has presented no authority to suggest that mere physical presence, as opposed to active participation, can be construed as the type of general appearance which serves to provide the court with personal jurisdiction.

Nor does J.P. Schermerhorn’s appearance before the court to present a motion to vacate after the default judgment was entered serve as a general appearance for the purpose of validating the court’s previous orders. In appearing with his motion to vacate the default judgment, Schermerhorn submitted only to the court’s prospective jurisdiction. In re Marriage of Verdung, 126 Ill. 2d 542, 535 N.E.2d 818.

Hoppa also argues that even if the court did not have jurisdiction over him at the time of the default judgment, J.P. Schermerhorn has waived his right to object to jurisdiction on appeal because he failed to contest jurisdiction in any of the proceedings below. Schermerhorn correctly counters that a judgment void for lack of personal jurisdiction may be attacked and vacated at any time or in any court, either directly or collaterally. (State Bank v. Thill (1986), 113 Ill. 2d 294, 497 N.E.2d 1156.) Further, a party attacking a judgment for lack of personal jurisdiction on the grounds of defective service of process is not restricted by the time limitations or due diligence requirements of section 2 — 1401 of the Code of Civil Procedure. (State Bank v. Thill, 113 Ill. 2d 294, 497 N.E.2d 1156.) We believe that the court lacked the necessary jurisdiction to pronounce a valid judgment against J.P. Schermerhorn, individually.

The court also lacked personal jurisdiction over Schermerhorn & Company. J.P. Schermerhorn & Company was not a misnomer for Schermerhorn & Company as Hoppa contends. It was therefore error for the court to amend the default judgment, to add Schermerhorn & Company. Hoppa does not deny that J.P. Schermerhorn & Company was voluntarily dissolved approximately four months after it was impleaded into this lawsuit. On the date of dissolution, a new corporation, Schermerhom & Company, was formed. In his section 2 — -401(b) motion to add Schermerhorn & Company to the final judgment order, Hoppa stated that he believed the two companies were “one and the same” because they conducted business from the same address, had the same telephone number, and in nearly all other respects were identical. Other than his impression that the two corporations “appeared to be identical,” Hoppa has offered us no grounds for finding J.P. Schermerhorn & Company and Schermerhorn & Company are one and the same company. The facts indicate that the legal entity of Schermerhorn & Company was not in existence when the suit against J.P. Schermerhorn & Company was instituted. “The general rule is that a corporation, as a legal entity, has an existence distinct from all other business concerns.” (Cigan v. St. Regis House Hotel (1979), 72 Ill. App. 3d 884, 888, 391 N.E.2d 197, 200.) Under this rule, Schermerhorn & Company and J.P. Schermerhorn & Company cannot be treated, as Hoppa attempts to do, as interchangeable parties. Service of process on J.P. Schermerhorn & Company did not accomplish service on Schermerhorn & Company. Nor can J.P Schermerhorn & Company’s appearance and answer in response to Hop-pa’s amended complaint be interpreted as a general appearance by Schermerhorn & Company. Because Schermerhorn & Company was not served and did not make a general appearance in court, we believe the court lacked the necessary jurisdiction to pronounce judgment over Schermerhorn & Company.

In conclusion, we believe that the default judgment against J.P. Schermerhorn, individually and Schermerhorn & Company is void for want of personal jurisdiction. The addition of Schermerhorn & Company to the final judgment order was an improper section 2 — 401(b) amendment. Accordingly, the decision of the trial court is reversed.

Reversed.

JOHNSON and LINN, JJ., concur.