author: JUSTICE INGLIS

text:
    WILLIAM L. GILMAN, JR., et al., Plaintiffs-Appellants, v. GENE KESSLER, d/b/a Gene’s Oasis, et al., Defendants-Appellees.
    Second District
    No. 2—89—0310
    Opinion filed December 29, 1989.

      John A. Leemon, of Mount Carroll, for appellants.
    Jack L. Brooks, of Bozeman, Neighbour, Patton & Noe, of Moline, and Robert L. Ellison, of Klockau, McCarthy, Ellison & Marquis, P.C., of Rock Island, for appellee Gene Kessler.
    Raphael E. Yalden II and Joseph D. Olsen, both of DeBruyne, Yalden & Olsen, of Rockford, for appellee Sue Mills.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, William and Cathy Gilman, appeal from jury’s verdicts entered against them on their dramshop and negligence actions brought against defendants, Gene Kessler, d/b/a Gene’s Oasis, and Sue Mills, d/b/a Palisades Tap. The actions arose from an incident occurring between William Gilman and John Rubio, at Gene’s Oasis on November 8, 1984. Rubio was allegedly intoxicated at the time. William was injured as a result of the incident and brought suit against the owner of Gene’s Oasis and the owner of Palisades Tap, a tavern Rubio had visited earlier that day. The jury returned verdicts against plaintiffs, and the trial court entered judgment on the verdicts. Plaintiffs filed this appeal. Plaintiffs raise the following issues on appeal: (1) whether the jury verdicts are supported by the evidence; (2) whether the trial court erred in finding that provocation was a defense to the negligence actions; (3) whether defendants’ closing arguments were improper and prejudicial to plaintiffs; (4) whether the trial court incorrectly permitted defendants to question witnesses as to their intoxication; and (5) whether the jury instructions were erroneons and misleading. We affirm.

The facts, as set forth by the parties at trial and in their briefs presented to this court, are complicated and controversial. Below, we have summarized the facts and testimony pertinent to this appeal.

On November 8, 1984, at 2 p.m., John Rubio picked up his then girlfriend, Candy Orth, at Pool 13 Supper Club, where they each had one beer. They then went to Gene’s Oasis at approximately 2:30 p.m. where Rubio had two or three beers. Rubio and Candy left Gene’s at approximately 4:30 p.m. with Glen and Terry Derrer and went to Palisades Tap. Candy testified that Rubio had “maybe three beers and a couple of peach schnapps” at Palisades. Rubio, Candy and the Derrers then went to the Derrers’ home, where Rubio had nothing to drink. Rubio and Candy stayed at the Derrers for an hour or two and then returned to Palisades where, according to Candy, Rubio had “a can of beer and peach schnapps on the rocks.” Candy testified that Rubio got into an argument at Palisades with Gary Derickson. The bartender at Palisades, Terry Prowant, told Rubio “to get out,” which he did. Candy opined that Rubio was “definitely intoxicated” at that time and she, herself, was “not far behind.”

Terry Prowant, the bartender at Palisades and defendant Sue Mill’s sister, testified that she served Rubio one drink that night. She stated that Rubio got into an argument with Vinny Poliso, not Gary Derickson. Prowant stated that she then asked Rubio to leave and that he did. Prowant did not recall Rubio slurring his words or having any problems walking that night. However, she did testify that Rubio was obnoxious. When asked, “Did you tell Bill Gilman that John Rubio was intoxicated when he was there that evening?” she testified, “[t]he longer he was there, it was more noticeable, yeah.”

From Palisades, Rubio and Candy proceeded to Gene’s Oasis. Approximately 30 patrons were present at Gene’s that evening with only one employee working, Brenda Brinkmeier. What occurred after Rubio arrived varies somewhat with each witness.

William Gilman testified that he had been at Gene’s since approximately 7:15 p.m. playing pool in a league along with Rick Miller, Kent Rettenberger, Lee Woodhurst and Rick Crest. According to William, Rubio was loud, angry and obnoxious when he entered Gene’s, which was sometime after 10 p.m.. Shortly after Rubio arrived, he kicked a bar stool at Dick Arisio and had a few words with him. About five minutes later, Rubio yelled obscenities at Lee Woodhurst. However, nothing became of the incident, and Rubio did not pursue it. Ten minutes later, Rubio shoved Woodhurst and there was more shouting.

William testified that the physical contact between Rubio and Woodhurst ceased “for a little while.” About 10 minutes after the second episode between Woodhurst and Rubio, William Gilman went to the restroom. When William exited the restroom about two minutes later, he observed a scuffle 20 to 30 feet away between Kent Rettenberger, John Rubio, and Lee Woodhurst. Rettenberger was trying to “contain” Rubio, who was trying “to get at” Woodhurst. William testified that he thought Rubio had a hold of Woodhurst’s arm and that Rettenberger was trying to break the hold. William then walked over to Rubio, grabbed his arm, and told him to “knock it off.” According to William, Rubio kept after Woodhurst, so William picked Rubio up and “set” him on a table so Woodhurst could get out the back door. William then released Rubio “because they were friends” and stepped back a couple of steps. Rubio then shoved William back, pulled William’s shirt over his head, and shoved William again. As William braced himself against Rubio’s shove, his knee “went” and he fell to the floor.

William admitted that Rubio had no problems walking or talking that night. William recalled nothing unusual about Rubio’s behavior other than that he was in an angry mood and it was clear that Rubio was not getting along with his girlfriend, Candy, that night as they were arguing. On redirect examination, however, William testified that he felt Rubio was intoxicated when he first saw him at Gene’s because Rubio was loud and obnoxious. William testified that later that evening after the incident, Rubio came back to Gene’s and apologized to William for what had happened.

When asked as to the amount of alcohol consumed that night, William stated that he saw Rubio order a beer for himself and a beer for his girlfriend. Wilnam testified that he, himself, had four or five beers at Gene’s and by 10:30 p.m. was “relaxed,” “feeling pretty good,” and maybe “a tad light-headed.”

Candy testified that she and Rubio arrived at Gene’s sometime after 9 p.m. Upon entering the bar, Candy went to the restroom, and when she came out, Rubio was arguing with Woodhurst over darts. Ru-bio was poking Woodhurst in the chest with his finger. Candy testified that she told Rubio “to stop arguing and to just knock it off,” and after she “found out that he wasn’t going to stop, [she] just turned around and left the bar.” Rubio did not have a beer in his hands when Candy left or prior to that time. Candy stated that Rubio came out of Gene’s “fifteen minutes or more” later.

Candy testified that Rubio changes when he drinks in that he gets “mean,” “pushy,” and “violent.” Candy admitted that on January 13, 1986, she wrote and signed a written statement in which she stated, among other things, that both she and Rubio were sober. Candy testified that the statement contained what Rubio told her to write; and, while she did not agree with what he was saying, she wrote.it because she was “scared of him.” Candy admitted that she married Rubio in April 1986 and divorced him two years later. Plaintiffs’ attorney represented Candy in her divorce from Rubio. She discussed the Gilman case with him after coming back from court for her final appearance in her divorce case. She gave plaintiffs’ attorney a statement regarding the Gilman case in June 1988.

Richard Miller, a member of William’s pool team, and William’s brother-in-law, testified that Rubio came into Gene’s at approximately 9:30 or 9:45 p.m. Rubio started arguing with Woodhurst, who ignored Rubio. Rubio pushed a chair at Steve Schneider, who also ignored Ru-bio. Rubio then left and did not return to Gene’s until about one-half hour later. Miller testified that Rubio “started back in” with Woodhurst again. William went to the restroom, and Miller followed soon after. When Miller came out of the restroom, Rettenberger and William were standing in front of Rubio so Woodhurst could leave. Miller did not see William pick Rubio up, but he saw Rubio pull William’s shirt up and push him backwards. William then fell and twisted his knee.

As to intoxication, Miller opined that there was not much doubt that Rubio was intoxicated when he came into Gene’s. Miller testified that Rubio gets violent when he has had too much to drink and that Rubio was pretty loud that evening. Rubio had a can of beer in his hand the first time he was at Gene’s, but Miller could not recall if Ru-bio had any beer the second time. Miller testified that he, himself, had “probably five or six” drinks between 6:30 and 9:30 p.m. but was not affected by it.

Kent Rettenberger, also a member of William’s pool team, testified that Rubio came into Gene’s around 9:15 or 9:20 p.m. Rubio walked up to Woodhurst and started yelling at him, but there was no physical contact. Rubio had words with Gary and John Derickson and kicked a bar stool at Arisio. About 45 minutes later, Rubio came up to Woodhurst and pushed him. They “wrestled around,” and Rettenberger stated that he then went between Rubio and Woodhurst as Woodhurst was attempting to get out of Gene’s. Rettenberger stated that it was at this point that William came out of the restroom. However, Rettenberger later stated that he had a hold of Rubio when William came out of the restroom and that Woodhurst was half way out the door.

Rettenberger testified that when William came out of the restroom, Rubio pushed William and William put his arms out to push back at Rubio. Rubio then pulled William’s shirt over his head. Rettenberger did not see William put Rubio in a bear hug or pick him up.

As to intoxication, Rettenberger testified that he did not know if Rubio was intoxicated when he came into Gene’s but stated that Rubio was loud and obnoxious. Rettenberger stated that Rubio was served a beer and a mixed drink three to five minutes after he came into Gene’s, but Rettenberger did not know if there was alcohol in the mixed drink. Rettenberger did not recall Rubio slurring his speech or having any trouble walking. However, when Rettenberger held Rubio, he came to the opinion that Rubio was intoxicated because Rubio was not normally a troublemaker and he could smell alcohol on Rubio. Rettenberger had no alcohol to drink that night.

At the close of plaintiffs’ case, the trial court granted directed verdicts for Harry Martin, d/b/a Pool 13 Supper Club and Pool 13 Supper Club, Inc. Plaintiffs apparently are not appealing this part of the trial court’s ruling as they have presented no argument in their post-trial motion or in their briefs to this court in that regard.

In his case in chief, defendant Kessler, d/b/a Gene’s Oasis, called Lee Woodhurst. Woodhurst, who is also a member of William’s pool team, testified that when he first saw Rubio, Rubio was at the bar and looked “a little outraged or something.” Woodhurst asked Rubio twice “[H]ow’s it going?” to which Rubio did not reply. Woodhurst then asked Rubio, “[W]ell, what’s your problem?” Rubio turned around, swore at Woodhurst, and started to come at Woodhurst. Woodhurst had his back to the pool table. Rubio came up and pinned Woodhurst against the table with his knees and “just held [him] there.” Woodhurst pushed Rubio back. Other patrons grabbed Rubio and broke it up. Woodhurst heard the bartender screaming to stop it.

Woodhurst then tried to get out the back door. Rubio lunged for Woodhurst as he was half way out the door. Rubio’s lunge pushed Woodhurst out the door. Other patrons grabbed Rubio, and the door slammed. According to Woodhurst the whole incident took place within about 12 minutes because Woodhurst did not notice Rubio until about 12 minutes before he left. Woodhurst did not see William pick Rubio up or set him on a table.

As to intoxication, Woodhurst testified that he did not see Rubio stagger or stumble but that Rubio was in a “very bad” mood and was “spitting and slobbering and making no sense.” In answer to a question as to whether Rubio looked any different from other persons Woodhurst had seen who had been very angry, but had not been drinking, Woodhurst stated, “I don’t know. If I wasn’t in a bar, I wouldn’t have said he was drinking. I don’t know.”

After defendants had rested, plaintiff made an oral motion dealing “with the fact that provocation is not a defense to an action under the Dram Shop Act.” The issue was argued, and the trial court ruled in plaintiff’s favor. Defendants then moved for a mistrial based upon the court’s ruling because plaintiff failed to bring his motion regarding provocation until all of the evidence had been introduced. The court denied defendants’ motions.

After closing arguments were given, the case went to the jury. The jury returned verdicts in favor of both remaining defendants. Plaintiffs filed a post-trial motion on January 25, 1989, which was denied on March 2, 1989. On March 27, 1989, plaintiffs filed their notice of appeal.

We initially address a jurisdictional argument made by defendants on appeal. Defendants argue that plaintiffs’ post-trial motion was not timely filed and, therefore, the appellate court lacks jurisdiction to hear the cause even though plaintiffs timely filed their notice of appeal. 107 Ill. 2d R. 303(a).

Section 2 — 1202(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1202(c)) requires a post-trial motion to be filed “within 30 days after the entry of judgment.” The record indicates that the jury returned a verdict on December 2, 1988, which was recorded on the trial court’s docket. However, the trial court did not enter a written judgment order until January 24, 1989. Defendants contend that the recordation of the jury verdict is the date on which the judgment was entered, and because plaintiffs filed their post-trial motion on January 25,1989, it was untimely.

Supreme Court Rule 272 is controlling in this case and provides as follows:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.” (107 Ill. 2d R. 272.)

Defendants contend that because the docket entry, which was entered at the time the verdicts were returned, made no requirement that a written judgment be submitted to the judge for his signature, the date of the verdict notation is the controlling date. In support of their contention, defendants cite four cases: Marotta v. General Motors Corp. (1985), 108 Ill. 2d 168; Davis v. Carbondale Elementary School District No. 95 (1988), 170 Ill. App. 3d 687; People v. Dickerson (1984), 129 Ill. App. 3d 59; and Drulard v. Country Cos. (1981), 99 Ill. App. 3d 1031.

We find defendants’ argument unpersuasive. Supreme Court Rule 272 speaks to the “notation of judgment,” not to the notation of the jury’s verdict. There was no judgment entered in the case at bar until January 24, 1989. The cases cited by defendants are distinguishable. Marotta v. General Motors Corp. dealt with the refusal of the circuit court to enter judgment on the jury’s verdict. In the case at bar, a judgment was clearly entered. The remaining three cases cited by defendants, Davis v. Carbondale Elementary School District No. 95, People v. Dickerson, and Drulard v. Country Cos., are distinguishable in that a final judgment notation was recorded. Again, in the case at bar, the notation recorded on December 2, 1988, was that of a jury verdict, not a final judgment. The judgment was not ordered until January 24, 1989, which makes plaintiffs’ January 25, 1989, post-trial motion timely.

Second, we address plaintiffs’ argument that the jury verdicts are against the manifest weight of the evidence. In making such a determination, the inquiry on appeal is not whether conclusions other than that reached by the jury are possible; rather, the reviewing court must determine whether the result reached is reasonable on the facts and evidence, and will not disturb the jury’s findings unless it is able to say that there is no evidence which fairly tends to support the verdict. J.F. Equipment, Inc. v. Owatonna Manufacturing Co. (1986), 143 Ill. App. 3d 208, 216; Zelinski v. Security Lumber Co. (1985), 133 Ill. App. 3d 927, 932.

As to the dramshop actions, the jury was instructed that plaintiff William had the burden of proving each of the following: (1) that Rubio was intoxicated at the time he pushed William; (2) that defendant sold or gave Rubio intoxicating liquor; (3) that the liquor thus consumed caused the intoxication of Rubio; (4) that Rubio’s intoxication was at least one cause of the occurrence in question; and (5) that as a result of the occurrence William suffered injury.

Plaintiff contends that at least five witnesses testified that Ru-bio was intoxicated and that “[t]he record is devoid of any evidence that Rubio was not intoxicated.” We disagree. The witnesses that testified as to intoxication were merely rendering their opinions, which the jury was free to reject. The jury is entitled to determine the credibility of the witnesses and the weight to be given to the testimony of each of them. Jurors may take account of any bias a witness may have and the reasonableness of the witness’ testimony considered in light of the evidence in the case.

The jury may have taken into account that a number of plaintiff’s witnesses were members of his pool team. Their opinions regarding intoxication were based primarily on the fact that Rubio was angry and loud that night and that he usually did not act that way. However, no witness testified that Rubio was stumbling or slurring his words. While the latter two characteristics are certainly not required to prove intoxication, they are nonetheless generally considered when forming an opinion as to intoxication. Additionally, the testimony of Candy Orth, plaintiffs’ strongest witness regarding intoxication, is impeachable on the basis that she had given a written statement almost two years before her trial testimony containing exactly the opposite opinion.

Aside from the possibly biased opinion testimony, there was also conflicting evidence as to the amount of alcohol consumed by Rubio. The jury could have found that given the length of time over which the alleged consumption took place, Rubio was not intoxicated at the time of the occurrence.

Even if the jury did find that Rubio was intoxicated at the time of the occurrence, this would not necessarily lead the jury to find against defendants. Plaintiff had the burden of proving the remaining four elements. In part, plaintiff had to prove that Rubio’s intoxication was at least one cause of the occurrence in question. As defendant Kessler points out, it would be reasonably conceivable for the jury to find that even a sober man would have responded in the same fashion as Rubio. According to William’s testimony, before he got involved, Rubio was arguing with Woodhurst and Rettenberger, with Rettenberger being in the middle. There was no physical violence at this point. William then exited the bathroom, walked a distance of 20 paces over to where the argument was occurring, picked Rubio up and “set” him on a table. When William released Rubio, Rubio shoved William, pulled his shirt over his head, and shoved him again. As a result, William was injured. Given the facts, the jury could have reasonably found that Rubio’s intoxication was not a cause of William’s injuries because Rubio would have reacted the same way whether he was intoxicated or not. Therefore, the jury’s finding for the defendants was not against the manifest weight of the evidence on the dramshop counts.

Plaintiffs also contend that the jury’s finding for defendant Kessler on the negligence counts was against the manifest weight of the evidence. As to the negligence actions, the jury was instructed, in part, that plaintiffs had the burden of proving each of the following: (1) that defendant was negligent by failing to keep the tavern premises safe when he knew or should have known of the danger presented to plaintiff by Rubio, in that defendant failed to make any comment to Rubio about his conduct or condition or failed to request Rubio to leave the tavern, failed to call the police, or failed to take any steps to protect William; (2) William was injured; and (3) the conduct of defendant was a proximate cause of the injury.

Defendant argues that the jury could have reasonably concluded from the evidence that defendant neither knew, nor should have known, of the danger presented to William by Rubio. Defendant claims that the incident happened “quickly and was totally unexpected.” In support, defendant argues that William admitted immediately prior to the injurious incident, he did not feel that anyone, including himself, was in any danger, nor did he expect any trouble. Various testimonies were given as to the amount of time involved between Rubio kicking the bar stool, Rubio’s first confrontation with Woodhurst, and the final incident.

While this court may have found that, given Rubio’s conduct, defendant Kessler should have known of the danger presented, there was nonetheless sufficient evidence for the jury to reasonably conclude to the contrary. Thus, the jury’s finding on the negligence count was not against the manifest weight of the evidence.

Third, we address plaintiffs’ contention that the trial court committed error when it ruled under the evidence that provocation was a defense to the negligence actions. Our review of the record does not indicate that the trial judge made such a ruling. Rather, the judge ruled that the issue of contributory negligence was questionable enough to send to the jury and thus prevented a finding as a matter of law that Williams was not contributorily negligent.

The law of contributory negligence has been defined as follows:

“A plaintiff is contributorily negligent when she acts without that degree of care which a reasonably prudent person would have used for her own safety under like circumstances, and which action is the proximate cause of her injury. [Citation.] Generally, the issue of whether plaintiff exercised due care, for her own safety is a question of fact for the jury. [Citation.] The burden of proving oneself free from contributory negligence rests with the plaintiff. [Citation.] In Illinois, contributory negligence is no longer a complete bar to recovery and goes only to diminution of the damage award. [Citation.]
Where a danger is obvious to a person of ordinary intelligence, the law will charge one with knowledge of it. [Citation.] It is incompatible with the exercise of due care for one’s own safety and protection to voluntarily expose oneself to danger of which one is aware; ordinary prudent persons do not knowingly place themselves in a position of peril or danger. [Citation.] The mere fact that one has the right to proceed in a certain manner does not justify exposing oneself to a known hazard in the act of proceeding.” Blacconeri v. Aguayo (1985), 132 Ill. App. 3d 984, 988-89.

In ruling that the contributory negligence issue should go to the jury, the trial judge commented:

“I have a problem with your reasonable man standard because three people testified that, ‘Hey, I didn’t want to get involved. I walked away.’ That’s something for the jury, a factual question, is going to have to decide; was Bill Gilman acting in a reasonable man standard when he intervened? *** I don’t think that we’re in a position where I can say it is a matter of law that the reasonable man standard absolutely is in favor of Bill Gilman when we have other people on this record testifying that they didn’t want to get involved because they didn’t want to get hurt.”

We find no error in the trial court’s ruling, and plaintiffs’ argument that any “provocation” by William was abandoned when William released Rubio is without merit given that the concepts of provocation and contributory negligence are separate and distinct doctrines.

Fourth, we address plaintiff’s contention that defendants’ closing arguments were improper and prejudicial to plaintiff. In support of his contention, plaintiff argues that defendants improperly argued provocation as to the dramshop counts, and secondly, that defendant Kessler improperly commented on the fact that Rubio did not testify.

We will first address the provocation issue. Defendants argue that the trial court erred when it held that provocation is not a defense to a claim under the Dramshop Act (Ill. Rev. Stat. 1987, ch. 43, par. 135), and, therefore, the arguments made during closing were proper. Defendants contend that the trial court erred in its application of Nelson v. Araiza (1978), 69 Ill. 2d 534, to the case at bar. The Nelson case involved a plaintiff drinking in the company of an alleged intoxicant before an automobile accident. The supreme court had to determine whether the conduct of plaintiff constituted complicity which would bar her recovery in a dramshop action as a matter of law. The court concluded that the evidence adduced at trial raised a question of fact on the issue of complicity but did not require a directed verdict in favor of defendants. Provocation was not an issue in Nelson. Thus, the court’s following comment regarding provocation was merely dicta and is not controlling:

“Assertions that one who provokes an attack is barred by complicity [citations] are incompatible with the doctrine. Complicity is not predicated on the plaintiff’s contribution to his injury but only upon his contribution to the inebriate’s intoxication.
The orderly administration of justice dictates that a clear rule of complicity be distilled. That rule, predicated on the better-reasoned decisions and the concept of the doctrine is this: only one who actively contributes to or procures the intoxication of the inebriate is precluded from recovery.” 69 Ill. 2d at 543.

It is not entirely clear how to interpret the court’s statement. It appears to propose that provocation is not complicity. This is different than stating that provocation is simply not a defense. Nonetheless, the Appellate Court for the Fifth District, in a dramshop action arising from a tavern brawl, relied upon Nelson to hold that provocation is not a defense to a dramshop action in Illinois. Galyean v. Duncan (1984), 125 Ill. App. 3d 464, 466.

More recently, however, the Appellate Court for the Third District held to the contrary. (Akin v. J.R.’s Lounge, Inc. (1987), 158 Ill. App. 3d 834.) In Akin, the plaintiff was injured as a result of an argument between the plaintiff and the intoxicant. Plaintiff brought a dramshop action against the tavern. The jury returned a verdict in the plaintiff’s favor, and the trial court entered judgment on the verdict. The defendant tavern appealed, contending that the trial court erred in striking its affirmative defense of provocation. The appellate court agreed and reversed and remanded the cause for retrial.

The court in Akin recognized that there are cases going both ways on the issue but held that “the weight of authority, and the better reasoned view as well, is that provocation is an affirmative defense in a dramshop case.” (Akin, 158 Ill. App. 3d at 837.) The appellate court distinguished Nelson by finding that the supreme court did not expressly rule that provocation would be unavailable as a defense in an appropriate case. The Akin court cited a long line of precedent recognizing provocation as a defense available to a defendant in dramshop litigation (Williams v. Franks (1973), 11 Ill. App. 3d 937; Tresch v. Nielsen (1965), 57 Ill. App. 2d 469; Bowman v. O’Brien (1940), 303 Ill. App. 630; Foster v. Lanciault (1979), 70 Ill. App. 3d 962; Taylor v. Hughes (1958), 17 Ill. App. 2d 138; Martin v. Blackburn (1942), 312 Ill. App. 549), and noted that the court in Nelson v. Araiza did not purport to overrule these earlier decisions, and thus, declined to do so as well.

Because we believe that Akin v. J.R.’s Lounge, Inc. is the better reasoned view, we find that the trial court erred in the case at bar when it ruled that provocation is not a defense under the Dram-shop Act. As such, defendants’ comments in their closing arguments were not improper.

Even if we were to accept the trial court’s interpretation of the law as correct, it does not appear that the comments made by defendants were improper. The closing arguments by defendants were substantially similar on this point as they both appear to argue causation, not provocation. Specifically, defendant Kessler argued in pertinent part:

“The other element in the Dram Shop case is that the intoxication of John Rubio has to cause the injury to Bill Gilman. It didn’t. The injury to Bill Gilman was caused because he intervened in a situation where he was not needed; not to come to the defense of someone who was in any peril, who restrained that person, who picked him up and, I use this as Mr. Gilman described it. I asked him, ‘Did you pick him up like in a bear hug?’ He said, ‘Yes.’ I asked him that a couple of time and he reiterated that, yes, that’s the way he picked him up. He came out of the restroom and walked 20 paces, by his own account, over to where Lee Woodhurst and John Rubio were talking and were separated by a 6’2”, 230 pound weight lifter. He walked over, picked up John Rubio in a bear hug, turned him around and sat him on the poker table. He restrained him for a few moments while Lee Woodhurst left. Now, Ladies and Gentlemen, I haven’t had a drop to drink, but if someone is going to pick me up in a bear hug and set me on that table, I would be mad. I would be outraged and without having anything stronger this morning than coffee, I might very well have jumped off the table and done more than just pick up somebody’s shirt and pull it over his head and push him back. That’s all John Rubio did. Even then he didn’t swing at Bill Gilman. All he did was respond naturally to what Bill Gilman had done to him. He got up off that table and went like this and pushed him back and accidentally, not because of any misconduct on Rubio’s part, but by accident, his knee locked and he fell and his knee moved laterally. He fell backwards and he had an injury. John Rubio was very sorry about that. He came back in and apologized. He didn’t mean to hurt anybody. He didn’t in fact hurt Bill Gilman. Bill Gilman hurts himself.
There is no causation.”

Defendant Mills argued:

“Ladies and Gentlemen: Even if you assume that John Rubio was intoxicated and even if you assume that Sue Mills forced alcohol down his throat, Plaintiffs haven’t done the proving because Plaintiff’s [sic] haven’t proved anything Rubio drank caused the bear hug, pushing incident. This is not a case of an innocent party getting run over by a drunk driver. It’s not a case of someone sitting at [sic] a bar stool watching television and someone comes out of nowhere and clubs him. I don’t know why John Rubio was in an ugly mood that night. Many people testified they had seen him drink before, but had never seen him like that.
I do know the cause of this incident is that if you’re asking for trouble, and if you pick someone up that’s mad, and you sit him on a table, you know there’s going to be trouble.
You remember all those questions you were asked when you were picked? You were asked about someone who tries to break up a fight. That was not the evidence. That’s not what happened here. If all the Plaintiff was interested in doing was breaking up somebody, the bear hug would have been enough. Once you already have someone restrained in a bear hug, why did you pick them up especially someone that’s smaller and shorter than yourself? You pick them up like a child and set them on a table and then it’s not to restrain them. It’s to add a little insult.”

Plaintiff objected, and the court sustained the objection on the basis that provocation is not a defense to a dramshop cause of action. After two more objections in this regard were sustained, the court terminated the argument of defendant Mills.

The jury was instructed that in order for plaintiff to recover under the Dramshop Act, he had to prove the intoxication of John Ru-bio was at least one cause of the occurrence in question. However, there seems to be a fine line between causation and provocation. The question of causation is a question of fact to be determined by the jury from a consideration of all the evidence (Caruso v. Kazense (1974), 20 Ill. App. 3d 695, 697; Casey v. Burns (1955), 7 Ill. App. 2d 316, 326), including the actions of William Gilman before he was injured. Danhof v. Osborne (1957), 11 Ill. 2d 77.

In Danhof v. Osborne, our supreme court held that liability under the Dramshop Act did not extend to a case where an assault was prompted by matters independent of the sale of alcoholic beverages. (Danhof, 11 Ill. 2d at 81-83.) Similarly, the jury in the case at bar could have found that the sale of alcoholic beverages to John Rubio did not cause the incident between William and Rubio. Therefore, arguments to that effect were proper.

However, regardless of the propriety of the closing arguments, a reviewing court may not reverse a judgment on these grounds unless the closing argument is “clearly improper and prejudicial.” (Boasiako v. Checker Taxi Co. (1986), 140 Ill. App. 3d 210, 214.) Given the fine line between causation and provocation, it would be difficult to say that the arguments were clearly improper.

Plaintiff challenges defendant Kessler’s closing argument on a second ground: that defendant Kessler improperly commented on the fact that Rubio did not testify. The argument to which plaintiff objected at trial is as follows:

“[T]he Judge is going to tell you right at the outset when he gives you the instructions is that your verdict must be based on the evidence and not on speculation, guess or conjecture. So you have to decide the question of liability and legal responsibility in this case not on what may have happened or might have happened, but on what you heard the witnesses say did happen.
Now, this whole incident took place four years ago and, as Mr. Leemon [counsel for plaintiff] pointed out, there have been differences in the recollection of different witnesses, but there is a series of gaps in the evidence presented here too. We didn’t hear anything from John Rubio in this case. We don’t know what he said or how he felt or whether he — .”

Plaintiff’s counsel then objected, and the trial court made the following comment:

“Counsel is aware that John Rubio was directed to appear as a party to this case and the jury should disregard any absence of him from the case because all efforts were made according to statute to have his appearance here.”

Defendant’s counsel then continued without further objection:

“My only point, Ladies and Gentlemen of the Jury, is we don’t know what he had to say. I’m not commenting on anybody’s failure to produce him or the fact that he wasn’t produced. I am saying we don’t know his version for whatever reason. We don’t know the Derrers version of this case. There is another gap. We don’t know the version of the other 30 people who were, by someone’s estimation, in the tavern at the time of this incident. We have a view of what happened only through the eyes of a few witnesses. These witnesses, as you will recall, all gave several accounts of what happened. The Plaintiffs’ version of what happened is different substantially from the version of Lee Woodhurst who was right there, and of Kent Rettenberger who was right there.
You’re going to have to assess the credibility of the witnesses who testified and decide which versions are more probably true than not true.”

It is generally improper for a defendant to comment upon plaintiff’s failure to call a witness who is not under plaintiff’s control or who is equally available to the defendant. (Lebrecht v. Tuli (1985), 130 Ill. App. 3d 457, 484.) However, it is not improper for counsel to compare and contrast testimony presented and to draw reasonable inferences and conclusions from the evidence and disparities which may be found therein. Chavez v. Watts (1987), 161 Ill. App. 3d 664, 669; Lebrecht, 130 Ill. App. 3d at 484.

In the case at bar, defendant was not commenting upon plaintiff’s failure to call a witness. Rather, the comment was directed toward the disparities and gaps in the testimony presented. Nonetheless, any impropriety of the statement was sufficiently addressed and corrected by the trial court.

Fifth, we consider plaintiffs’ contention that the trial court incorrectly permitted defendants to question witnesses as to their drinking of alcohol on November 8, 1984. Plaintiffs argue that evidence of alcoholic consumption is so prejudicial that more than mere drinking must be shown in order to permit such evidence to go to the jury; actual intoxication with impairment of physical or mental capabilities is required. Wagner v. Zboncak (1982), 111 Ill. App. 3d 268, 270.

However, the admissibility of evidence lies within the sound discretion of the trial court. (People v. Gosse (1983), 119 Ill. App. 3d 733, 738.) The admission of such irrelevant evidence is ground for reversal only if it results in prejudicing the jury’s verdict. (Gilberto v. Nordtvedt (1971), 1 Ill. App. 3d 677, 679-80.) After reviewing the record, we find no such prejudice in the case at bar and find any error that may have been committed to be harmless.

Finally, we consider plaintiffs’ contention that certain instructions given to the jury were erroneous and misleading. In their argument of this issue, plaintiffs refer to nine jury instructions. We find that plaintiffs have waived any error regarding all but one of the instructions. Questions on instructions need not be reached on appeal where a post-trial motion was not sufficiently specific to preserve the objection. (Statler v. Catalano (1988), 167 Ill. App. 3d 397, 408; Riley v. Fair & Co., Realtors (1986), 150 Ill. App. 3d 597, 598-99.) In their post-trial motion, plaintiffs specifically objected to instruction 15 of defendant Kessler and set forth the basis for that objection. However, as to the remaining instructions, the plaintiffs merely stated that “[t]he Court erred in giving instructions offered by the Defendant, Gene Kessler, and which were objected to by the Plaintiffs.” Such a statement is insufficient to preserve the issue on appeal. Riley, 150 Ill. App. 3d at 598-99; Williamson v. Opsahl (1981), 92 Ill. App. 3d 1087, 1089-90.

As to instruction 15 of defendant Kessler, plaintiffs claimed it was prejudicial to them because it was “misleading[,] causing the jury to believe that it was the precise moment John Rubio pushed the Plaintiff, William L. Gilman Jr., that the duty of Defendant, Gene Kessler, to patrons of his establishment arose.”

We note initially that plaintiffs' objection apparently goes to instruction 15A which explains the duty owed by defendant Kessler to William, not to instruction 15, which explains the meaning of proximate cause.

Instruction 15A provides:

“The defendant, Gene Kessler, d/b/a Gene’s Oasis, owed the plaintiff, William L. Gilman, Jr., the duty to take affirmative action to protect William L. Gilman, Jr. against misconduct of third persons, if the danger to plaintiff was apparent or the circumstances are such as to put a reasonably prudent person on notice of the probability of danger and if the defendant had the reasonable opportunity to prevent it.”

In support of their contention that the jury was misled as to when defendant’s duty arose, plaintiffs argue that the jury should have been instructed that defendant had a duty to act when defendant “became aware or should have been aware of the danger to any patron in the tavern, not just the plaintiff, William L. Gilman, Jr.” However, plaintiffs cite no authority for their contention that the instruction given was erroneous. In addition, the instruction sufficiently supported plaintiffs’ contention that the duty could arise prior to the time William was actually in danger by providing that it could arise if “the circumstances are such as to put a reasonably prudent person on notice of the probability of danger and if the defendant had the reasonable opportunity to prevent it.”

For the above-stated reasons, we affirm the judgment of the trial court.

Affirmed.

UNVERZAGT, P.J., and DUNN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    GLUTH BROTHERS CONSTRUCTION, INC., et al., Plaintiffs-Appellees, v. UNION NATIONAL BANK, Defendant-Appellant.
    Second District
    No. 2—89—0352
    Opinion filed December 29, 1989.

      Robert A. Chapski, of Law Office of Robert A. Chapski, Ltd., of Elgin (Randy K. Johnson, of counsel), for appellant.
    Caldwell, Berner & Caldwell, of Woodstock (James E. Berner, of counsel), for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Union National Bank, appeals from an order of the circuit court of McHenry County entering judgment in favor of plaintiffs, Gluth Brothers Construction, Inc., and Wayne E. Zimmerman, d/b/a Wayne E. Zimmerman Construction, in the sum of $195,609.56, plus interest and costs. Defendant also appeals from the circuit court’s order denying its petition filed pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). On appeal, defendant contends that: (1) the trial judge acted improperly in not recusing himself from the case given that plaintiffs’ attorney was the chairman, and the attorney’s wife, the treasurer, of the judge’s lawyers committee (a campaign committee); and (2) it is entitled to a setoff on the judgment entered for the amounts plaintiffs received as creditors in a bankruptcy proceeding. We affirm in part, reverse in part, and remand.

The facts in this case were set out in a previous opinion issued by this court. (Gluth Brothers Construction, Inc. v. Union National Bank (1988), 166 Ill. App. 3d 18.) We will only set out additional facts pertinent to the issues present in this appeal.

On August 19, 1982, plaintiffs filed a two-count complaint in the circuit court of McHenry County alleging that defendant, Union National Bank, improperly set off $195,609.56 in funds deposited by Valley Engineering Company (Valley). Plaintiffs alleged that the funds were the proceeds of a joint venture comprised of plaintiffs and Valley and, as such, constituted trust funds which were beyond defendant’s reach. On October 27, 1982, plaintiffs filed a motion for a change of venue, which was subsequently granted. The case was thereafter assigned to the Honorable Roland A. Herrmann.

On May 21, 1985, plaintiffs were granted leave to file an amended complaint adding count III. In addition, plaintiffs requested leave to file a jury demand. On June 10, 1985, Judge Herrmann heard arguments on plaintiffs’ jury demand and thereafter denied plaintiffs’ request. The case proceeded to trial.

Following a bench trial, the trial court found in favor of plaintiffs and entered judgment against defendant in the amount of $334,380.86, plus $156,968.92 in interest, for a total award of $491,349.78. On appeal, this court affirmed the trial court as to liability but reversed as to damages. On remand, the trial court was instructed to enter judgment for plaintiff in the amount of $195,609.56, plus interest at the then current prime rate. Gluth Brothers, 166 Ill. App. 3d at 29-30.

On September 15, 1988, the appellate court mandate was filed in the circuit court of McHenry County. On October 6, 1988, defendant filed a motion for a setoff, alleging that a Federal judge in Valley’s bankruptcy proceeding distributed over $180,000 to plaintiffs as a creditor of Valley. On the same day, plaintiffs filed a motion objecting to the setoff, contending that the circuit court did not have jurisdiction to deviate from the appellate court mandate.

On October 14, 1988, defendant filed a motion for a change of venue, alleging that plaintiffs’ attorney had a “long-standing” relationship with Judge Herrmann and, as a result, defendant was entitled to a new trial before a different judge. On the same day, Judge Herrmann recused himself from the case, and the case was subsequently assigned to the Honorable Ward S. Arnold.

On November 29, 1988, plaintiffs filed a motion to enter judgment pursuant to the appellate court mandate. On December 2, 1988, defendant filed a petition pursuant to section 2 — 1401 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401) to “vacate and/or refuse to enter judgment.” On December 19, 1988, a hearing was held, after which the trial court denied defendant’s request for a setoff and awarded plaintiffs $195,609.56, plus interest and costs. The court also denied defendant’s request for a new trial, finding that defendant had failed to establish any actual prejudice as a result of the relationship between Judge Herrmann and plaintiffs’ attorney. Defendant’s motion for reconsideration was denied, and this appeal followed.

Defendant’s first contention on appeal is that it was entitled to a new trial due to the relationship between Judge Herrmann and plaintiffs’ attorney. Defendant alleges that this relationship was not disclosed to defendant before trial and, consequently, made it impossible for defendant to receive a fair trial.

It is undisputed that plaintiffs’ attorney served as the chairman of the Executive Committee Lawyers For Herrmann in 1976. In addition, the attorney’s wife served as the treasurer of the same committee. At no time during the trial did Judge Herrmann advise defendant of this relationship. It is on these facts that defendant based its section 2 — 1401 petition for a new trial.

The trial court denied defendant’s petition, stating that Judge Herrmann was not required to recuse himself from the case. As such, the court held that “the motion is not well taken unless Union National Bank [defendant] can show something in conjunction with his [the trial judge’s] refusal or lack of disqualification which would bolster its argument that he was not impartial or that he showed partiality to one side or the other.”

Defendant contends that the trial court erred by requiring “actual prejudice” in a case in which an appearance of impropriety was present. In addition, defendant argues that, even assuming arguendo that it was necessary to show actual prejudice, such a showing was demonstrated in the present case.

Plaintiffs respond by arguing that defendant’s section 2 — 1401 petition did not meet the statutory requirements and thus was not sufficient to obtain relief. In particular, plaintiffs allege that the petition was not supported by an affidavit and did not allege that defendant had a meritorious defense.

A section 2 — 1401 petition must set forth facts showing the existence of a meritorious defense and must be supported by an “affidavit or other appropriate showing as to matters not of record.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401(b); In re Petition of the Village of Kildeer to Annex Certain Territory (1988), 124 Ill. 2d 533, 544-45.) In addition, due diligence in presenting both a defense at trial and the petition to vacate must be demonstrated. (Carroll Service Co. v. Schneider (1986), 144 Ill. App. 3d 38, 40.) Plaintiffs do not contend that defendant was not diligent; thus, we will not consider this requirement on appeal.

We disagree with plaintiffs’ contention that defendant’s petition did not satisfy the statutory requirements under section 2 — 1401 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401). Defendant attached copies of Judge Herrmann’s election commission reports to the petition, thus satisfying the requirement that the petition be supported by an “appropriate showing.” In addition, the allegation that defendant did not receive a fair hearing before an impartial trier of fact satisfies the requirement of a meritorious defense. In Brewer v. Moore (1984), 121 Ill. App. 3d 423, the court determined that a section 72 petition (the predecessor of a section 2 — 1401 petition) should be utilized to prevent injustice, including preventing the enforcement of an unfair or unjust judgment. (Brewer, 121 Ill. App. 3d at 428-29.) Furthermore, in Village of Kildeer, our supreme court stated that a section 2 — 1401 petition should be utilized to “avoid unjust, unfair or unconscionable circumstances.” (Village of Kildeer, 124 Ill. 2d at 542.) In the present case, defendant alleged that it did not receive a fair trial due to the trial judge’s relationship with plaintiffs’ attorney. With these considerations of fairness and justice in mind, it is our opinion that defendant’s petition satisfied the requirements of section 2 — 1401 of the Code.

We next consider whether the trial court erred in denying defendant’s section 2 — 1401 petition. Whether a section 2 — 1401 petition should be granted or denied lies within the sound discretion of the trial court, and its decision will not be disturbed on appeal absent an abuse of discretion. Village of Kildeer, 124 Ill. 2d at 544; Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 221.

In the case at bar, defendant argues that the trial court abused its discretion in denying its section 2 — 1401 petition given the fact that plaintiffs’ attorney worked as Judge Herrmann’s campaign manager in 1976. Thus, according to defendant, it was incumbent upon Judge Herrmann to disclose to defendant the nature of his relationship with plaintiffs’ attorney, and the failure to do so created an appearance of impropriety which deprived defendant of its right to a fair trial.

At the time of trial, Supreme Court Rule 61 (103 Ill. 2d R. 61) governed the standards of judicial conduct. Rule 61(c)(4) provided, in pertinent part:

“A judge’s official conduct should be free from impropriety and the appearance of impropriety; *** and his personal behavior, not only upon the Bench and the performance of judicial duties, but also in his everyday life, should be beyond reproach.” (103 Ill. 2d R. 61(c)(4).)

Effective January 1, 1987, the Illinois Supreme Court adopted a new Code of Judicial Conduct (Judicial Code) (107 Ill. 2d Rules 61 through 68). Canon 2 of the Judicial Code states that a judge should avoid impropriety and the appearance of impropriety in all of his or her activities. (107 Ill. 2d. R. 62.) In addition, Canon 3 governs situations in which a judge should disqualify himself from a proceeding in which his impartiality may reasonably be questioned, including a situation in which the judge “has a personal bias or prejudice concerning a party or his lawyer.” 107 Ill. 2d R. 63(C)(1)(a).

After a review of the above-stated supreme court rules, we disagree with defendant’s contention that there is an appearance of impropriety in this case. We make this determination after considering that Judge Herrmann was not obligated to inform defendant that plaintiffs’ attorney served as the judge’s campaign manager in the 1976 campaign, nearly six years before the complaint in the present case was filed. In addition, Judge Herrmann complied with all applicable election disclosure laws by filing a copy of his political committee’s statement of organization, along with financial disclosure reports, with the State Board of Elections in Springfield. These documents were public knowledge and apparently were the method by which defendant initially became aware of the judge’s relationship with plaintiffs’ attorney.

Defendant cites several cases from other jurisdictions to support its position that the relationship in the present case created an appearance of impropriety. In Caleffe v. Vitale (Fla. App. 1986), 488 So. 2d 627, one of the attorneys involved in the case was the cochairman of the judge’s pending reelection committee. The court held that this relationship created an appearance of impropriety requiring the judge to disqualify himself from the case at issue. (Caleffe, 488 So. 2d at 629.) The court based its decision on the fact that the attorney “is actually running the judge’s ongoing reelection campaign.” 488 So. 2d at 629.

In Stephens v. Stephens (1982), 249 Ga. 700, 292 S.E.2d 689, the judge’s son was an attorney in the law firm which was representing one of the parties. The court held that the father-son relationship would require the judge to disqualify himself in any case in which any partner or associate of the law firm which employs his son actively participates. (Stephens, 249 Ga. at 703, 292 S.E.2d at 692.) The court determined that the judge’s impartiality “might reasonably be questioned” solely on the basis of the father-son relationship, even though his impartiality was not called into question by any other facts. Stephens, 249 Ga. at 701-04, 292 S.E.2d at 691-92.

Likewise, in SCA Services, Inc. v. Morgan (7th Cir. 1977), 557 F.2d 110, the judge’s brother was a senior partner in the law firm representing one of the parties. The court determined that this relationship was sufficient to create an appearance of impropriety in the public’s mind. (SCA Services, 557 F.2d at 116.) The court reasoned that the “natural assumption” that the brothers would be inclined to support each other’s interests would not “reassure a public already skeptical of lawyers and the legal system.” 557 F.2d at 116.

Defendant correctly points out that each of the cases discussed above involve a judge’s relationship with an attorney which lead to an appearance of impropriety. However, the common theme in each of the cases was that the judge had a present, ongoing relationship with the attorney while the case was still pending. Thus, the courts held that it was reasonable to conclude that an appearance of impropriety existed in situations which involved a current relationship between the judge and one of the attorneys.

In the present case, there was no allegation, or any evidence to support such an allegation, that plaintiffs’ attorney had a present, ongoing relationship with the judge as his campaign manager, or in any other capacity. Rather, the evidence indicated that the relationship existed solely for Judge Herrmann’s 1976 election campaign, a campaign which ended nearly six years before the complaint in the case at bar was filed. Absent any such evidence, and given that the attorney’s position as chairman of Judge Herrmann’s lawyers committee in 1976 was a matter of public record, it is our opinion that there was no appearance of impropriety in this case.

Defendant also argues that it demonstrated the actual prejudice of Judge Herrmann during the course of the trial. This court has recently determined that a showing of actual prejudice is necessary to obtain a change of venue after the judge has made a substantive ruling in the case. (In re Marriage of Click (1988), 169 Ill. App. 3d 48, 53.) In Click, the petitioner, represented by the same attorney who is representing defendant in the case at bar, alleged that the trial judge was biased due to his relationship with respondent’s attorney in an “exclusive” organization (The American Academy of Matrimonial Lawyers). (Click, 169 Ill. App. 3d at 52.) This court held that the trial judge was not required to recuse himself from the case or disclose his membership in the organization. (Click, 169 Ill. App. 3d at 53.) We noted that the fact that the judge and attorney were acquainted was not an adequate demonstration of actual prejudice. Click, 169 Ill. App. 3d at 53.

In addition, in Malawy v. Richards Manufacturing Co. (1986), 150 Ill. App. 3d 549, the court determined that the defendant was not entitled to a change of venue simply because a partner in the law firm representing the plaintiff was the treasurer of the judge’s election campaign in 1982. (Malawy, 150 Ill. App. 3d at 568-69.) The court failed to find any evidence demonstrating actual prejudice which would warrant such a change of venue. Malawy, 150 Ill. App. 3d at 569.

A review of the record in the present case leads us to the conclusion that defendant failed to demonstrate actual prejudice which would entitle it to a new trial. Defendant argues that the judge made several “inappropriate” remarks during the liability portion of the case, and then awarded plaintiffs damages based on defendant’s liability. A review of the record presented on this appeal fails to reveal any “inappropriate” remarks made by the judge which thereby caused prejudice to defendant. As such, we do not agree with defendant’s contention that it demonstrated actual prejudice, and thus agree with the trial court’s conclusion that defendant was not entitled to a new trial based upon an appearance of impartiality.

Defendant also contends that the trial court erred in entering judgment pursuant to this court’s mandate without first granting defendant a setoff for the amount plaintiffs recovered in Valley’s bankruptcy proceeding. Defendant argues that the setoff was necessary to prevent plaintiffs from receiving a “double recovery.” Defendant also made a “double recovery” argument in its section 2— 1401 petition, noting that the amount recovered in the bankruptcy proceeding was not known until after this court issued its mandate.

Plaintiffs argue that defendant is not entitled to a setoff for any amounts recovered in the bankruptcy proceeding, contending that defendant failed to offer any evidence to the trial court showing that it is entitled to such a setoff. Plaintiffs further argue that refusing to grant defendant a setoff will not result in any “double recovery” given that plaintiffs proved damages in their claim in the Valley bankruptcy proceeding in excess of defendant’s liability to plaintiffs in the present case.

Initially, we note that defendant made a similar argument in the prior appeal regarding a setoff from the amounts plaintiffs recovered in the Valley bankruptcy proceeding. We determined that the trial court did not err in failing to deduct the amount that plaintiffs would receive from the bankruptcy proceeding because plaintiffs had not yet received any money from the proceeding. (Gluth Brothers, 166 Ill. App. 3d at 29.) However, plaintiffs have now received their share of the claims in the bankruptcy proceeding, so we will reconsider defendant’s argument concerning its entitlement to a setoff.

Plaintiffs contend that the trial court did not have jurisdiction to award defendant a setoff, arguing that the court was required to enter judgment pursuant to the appellate court mandate. The mandate of an appellate court is its judgment which, when transmitted to the trial court, revests that court with jurisdiction. Thereupon, a trial court must follow the specific directions of the appellate court’s mandate to the letter to insure that the decree is congruent with the decision of the higher court. (PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 308-09.) Normally, the correctness of a trial court’s action on remand is determined from the appellate court’s mandate as opposed to the appellate court’s opinion. However, if the direction is to proceed in conformity with the opinion, the content of the opinion then becomes significant. The trial court may only do those things directed in the mandate and has no authority to act beyond the dictates of the mandate. PSL Realty Co., 86 Ill. 2d at 308-09.

Where the directions of a reviewing court are specific, a positive duty is placed upon the court to which the cause is remanded to enter an order or decree in accord with the directions contained in ■the mandate. (Thomas v. Durchslag (1951), 410 Ill. 363, 365.) In the present case, the directions concerning the entry of the judgment were specific, and the trial court had no authority to grant additional relief. Thus, the trial court did not err in entering judgment pursuant to this court’s mandate.

We next consider whether the trial court erred in denying defendant’s request for a setoff in its section 2 — 1401 petition. Defendant argues that the trial court should have granted its request for a setoff to prevent plaintiffs from receiving a “double recovery.” A review of the record in the case at bar now indicates that plaintiffs could receive the following amounts in damages:

Judgment in Present case, unpaid— $195,609.56
Claim paid in Bankruptcy case— $182,465.35
Total Recovery, if judgment is paid— $378,074.91

However, plaintiffs point out that the amount recovered in the bankruptcy proceeding was far less than the $334,380.31 in damages actually proved in the bankruptcy proceeding. Plaintiffs contend that they are entitled to a full recovery for $334,380.31 in damages proved, which is in excess of the $195,609.56 recoverable against defendant in the present case. It is plaintiffs’ position that allowing them to retain the judgment in the present case, along with the amount recovered in the bankruptcy proceeding, will not result in a double recovery or a “windfall.”

Defendant contends that the $195,609.56 judgment represented the amount of money plaintiffs had to pay the creditors of Valley as a result of defendant’s improper setoff of the money in the trust account. Since plaintiffs paid the creditors, they were entitled to submit a claim in the Valley bankruptcy proceeding to recoup the amount paid. In fact, plaintiffs did receive $182,465.34 from the Valley bankruptcy proceeding. Thus, according to defendant, plaintiffs should not be permitted to retain the money from the bankruptcy proceeding in addition to the judgment entered in the present case. To do so would improperly award plaintiffs a double recovery for the same alleged injury.

Both parties agree that Illinois courts will allow a plaintiff to recover only once for any particular injury. (Dial v. City of O’Fallon (1980), 81 Ill. 2d 548, 558; Brown v. Timpte, Inc. (1985), 137 Ill. App. 3d 1053, 1057.) To allow otherwise would bestow a windfall on the plaintiff and would be tantamount to a double recovery. Dial, 81 Ill. 2d at 558.

Applying these principles to the case at bar, it is our opinion that the trial court should now consider if a setoff is required to avoid duplication of monetary damages. A reading of our prior opinion in this case indicates that we stated that there was no evidence of any double recovery because plaintiffs had not yet recovered any money from the bankruptcy proceeding. (Gluth Brothers, 166 Ill. App. 3d at 29.) The evidence now indicates that plaintiffs have received such a recovery. However, a review of the record does not indicate whether the bankruptcy recovery was in fact from the same claim as that present in the case at bar. Given that it is impossible for us to make such a determination from the record on appeal, we have no alternative but to remand this case back to the trial court to determine whether plaintiffs have received a double recovery in this case.

On remand, the trial court should determine whether the recoveries in the bankruptcy proceeding and this case did actually arise from the same claim. If so, the court should award defendant a setoff against the $195,109.56 judgment to avoid a double recovery. If the court determines that two different claims are involved, no setoff is then required and the judgment for plaintiffs in the amount of $195,109.56 should stand. In either case, plaintiffs are entitled to interest on the judgment at the then current prime rate.

For the above stated reasons, the judgment of the circuit court of McHenry County denying defendant’s request for a new trial based on the trial judge’s appearance of impropriety is affirmed. The order entering judgment on this court’s mandate is also affirmed. However, that portion of the order denying defendant’s request for a setoff (based on section 2 — 1401 of the Code) is reversed, and the cause is remanded for a determination of whether defendant is entitled to a setoff for the amount of money plaintiffs recovered in the bankruptcy proceeding.

Affirmed in part; reversed in part and remanded.

UNYERZAGT, P.J., and REINHARD, J., concur.


author: PER CURIAM:

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY KAEDING, Defendant-Appellant.
    Second District
    Nos. 2—88—0464, 2—88—0555 cons.
    Opinion filed December 19, 1989.

      No brief filed for appellant.
    Roger T. Russell, State’s Attorney, of Belvidere (William L. Browers and Martin R Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PER CURIAM:

The defendant, Gary Kaeding, appeals from two orders finding him in direct criminal contempt of court. We affirm in part and vacate and remand in part.

On February 25, 1988, the defendant appeared in the trial court and stated he was Dennis H. Anderson, a party in the case called for hearing. The defendant repeatedly represented himself to be Dennis Anderson, even though the court personally knew he was Gary Kaeding. The court therefore found the defendant in direct criminal contempt for misrepresenting his identity to the court.

Thereafter, the defendant filed a civil suit in Federal court against the trial judge. The defendant also subpoenaed the trial judge and the judge’s father. The trial judge thereafter summarily found that the suit was filed for the sole purpose of intimidating the court. The judge therefore held the defendant in direct criminal contempt.

On May 5, 1988, following a sentencing hearing on the contempt findings, the trial court fined the defendant $500 on the first contempt order. On the second contempt order, the court fined the defendant $500 and sentenced him to six months in jail.

Initially, we note that the defendant’s pro se brief presents numerous issues, many of which are nonsensical. For instance, he argues that this court has no jurisdiction over his appeal. We find this a strange argument since the defendant is bringing the appeal. Given the nature of the defendant’s brief, we will only address those issues bearing a semblance of rationality.

The defendant argues that the trial court lacked jurisdiction to enter an order of contempt against him. We disagree. As long as the trial court had jurisdiction over the parties and subject matter, the court also had jurisdiction to enter an order of contempt. (People v. Draves (1986), 149 Ill. App. 3d 657, 500 N.E.2d 1072.) In the instant case, the trial court had personal jurisdiction over the defendant from his appearance in court. We therefore hold that the court had the jurisdictional authority to enter a contempt order against him.

The defendant also argues that he should not have been held in contempt for misrepresenting his identity to the court. We find this argument meritless.

Criminal contempt of court has been defined as conduct which is calculated to embarrass, hinder, or obstruct a court in its administration of justice or derogate from its authority or dignity, thereby bringing the administration of law into disrepute. (People v. Smith (1981), 102 Ill. App. 3d 226, 429 N.E.2d 870.) Direct criminal contempt results when the contemptuous conduct occurs in the presence of the trial judge, making all of the elements of the offense matters within his personal knowledge. People v. Whitlock (1988), 167 Ill. App. 3d 984, 522 N.E.2d 100.

In the instant case, we find that the defendant’s misrepresentation of his identity was conduct calculated to obstruct the trial court in its administration of justice. We also find that the conduct occurred within the presence of the trial court and that the trial judge personally knew the defendant’s real identity. We therefore hold that based on this conduct, the trial court’s finding of direct criminal contempt was proper.

The next issue on appeal is whether the trial court properly found the defendant in direct criminal contempt based on the defendant’s conduct of filing a lawsuit in an alleged effort to intimidate the court. Although the trial court’s finding of intimidation appears correct, we nonetheless must vacate this contempt order and remand the cause for a hearing.

An indirect contempt is one which occurs out of the presence of the judge and is therefore dependent for its proof upon evidence of some kind or upon facts of which the court has no judicial notice. (People v. Jashunsky (1972), 51 Ill. 2d 220, 282 N.E.2d 1.) The filing of contemptuous documents is a type of indirect criminal contempt. (See People ex rel. Finck v. Locher (1988), 172 Ill. App. 3d 706, 526 N.E.2d 935.) In proceedings to punish indirect criminal contempt, due process requires that the accused be accorded notice and a hearing. People v. Waldron (1986), 114 Ill. 2d 295, 500 N.E.2d 17.

In the instant case, we find that the defendant’s conduct occurred outside the presence of the trial court and, as such, was indirect criminal contempt. We therefore hold that the defendant was entitled to notice and a hearing. Furthermore, we hold that on remand the judge against whom the lawsuit was filed should recuse himself from the defendant’s indirect contempt hearing so as to avoid the appearance of impropriety.

The judgment of the circuit court of Boone County is affirmed as to the first direct criminal contempt finding; the judgment on the second direct criminal contempt finding is vacated, and the cause is remanded for further proceedings consistent with our findings.

Affirmed in part; vacated and remanded in part.