author: JUSTICE McMORROW

text:
    NORELL SANDERS, Petitioner-Appellee, v. O.D. SHEPHARD, a/k/a Odell Shephard, Respondent-Appellant.
    First District (4th Division)
    Nos. 1-87-3631, 1-88-2070, 1-88-2100, 1-88-3714 cons.
    Opinion filed June 22, 1989.

      Steven E. Glink, of Chicago, for appellant.
    Joan S. Colen and Cathleen Cohen, both of Legal Assistance Foundation, of Chicago, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

O.D. Shephard (Shephard) appeals from three successive contempt orders entered November 19, 1987 (docket number 87 — 3631), May 17, 1988 (docket numbers 88 — 2070 and 88 — 2100), and November 18, 1988 (docket number 88 — 3714). Each of these contempt orders directed Shephard’s imprisonment for six months or until he returns his biological daughter, Deborah Sanders (Deborah), to the custody of the child’s natural mother, Norell Sanders (Sanders). The contempt orders resulted from Shephard’s failure to comply with the trial court’s October 16, 1987, plenary protection order that Shephard return the child to her mother. The trial court entered this plenary protection order, following a hearing, pursuant to a petition filed by Sanders under the Illinois Domestic Violence Act of 1986 (Ill. Rev. Stat. 1987, ch. 40, par. 2311 — 1 et seq.). Sanders filed her petition for protection a few days before Shephard was released on parole from his criminal conviction for having abducted the child. (See Ill. Rev. Stat. 1983, ch. 38, par. 10 — 5(b)(3) (child abduction); People v. Shephard (1988), 171 Ill. App. 3d 977, 525 N.E.2d 1102 (affirmance of conviction).) For the reasons stated below, we affirm.

Sanders filed a civil petition seeking both emergency and plenary protection orders under the Illinois Domestic Violence Act on October 2, 1987. In support of her petition, Sanders stated in an affidavit that Shephard had telephoned her from prison and repeated prior threats to kill Sanders or do bodily harm to both Sanders and Deborah upon Shephard’s release from prison. Sanders further stated in her affidavit that she believed Shephard would make arrangements to further conceal Deborah and destroy evidence of her whereabouts if Sanders were required to notify Shephard prior to attempting to obtain the emergency protection order.

On the basis of this petition and supporting affidavit, the trial court issued an emergency ex parte order of protection. The order directed Shephard not to strike, threaten, harass, or interfere with the personal liberty of Sanders or her family. It also ordered Shephard to initiate no contact whatsoever with Sanders. The trial court’s order directed Shephard to appear in court on October 9, 1987, with the minor child, Deborah. It further noted, in bold, large print, “Willful violation of any provisions of this order constitutes contempt of court and may further result in fine or imprisonment.” The emergency order was set to expire by its own terms in two weeks. Copies of the summons and order were mailed to Shephard in prison by both direct and certified mail the same day the emergency order was entered.

The day following the court’s entry of the emergency order, a court-appointed special process server attempted to serve Shephard with summons and a certified copy of the emergency order. Shephard refused to take these documents from the special process server, and the process server orally informed Shephard of the full contents of the summons and the emergency order, including the court’s order that he appear in court on October 9 with Deborah.

On October 9, 1987, Shephard appeared in court without an attorney. He did not bring Deborah to court on that day or explain her absence from court. The transcript reflects that on that day Sanders presented to the court a verified petition for rule to show cause why Shephard should not be held in contempt of court for failure to produce the child, although Sanders’ verified petition does not appear in the record upon review. Based upon Sanders’ petition for a rule to show cause, the court held a contempt hearing instanter. Sanders testified that Shephard took Deborah from her in September 1984 and that Sanders had not seen the child since that time. An Illinois State Police officer testified that investigation revealed the child had not been seen since October 1984, and that Shephard was the last person seen with the child at that time.

Shephard requested that counsel be appointed to represent him at the contempt hearing. The court declined to do so, explaining to Shephard that the matter was a civil proceeding and that he was entitled to appointed counsel only in criminal proceedings. The court suggested that Shephard could later obtain counsel if he should choose to do so and that any contempt order entered that day would then be vacated. Under examination by the court, Shephard testified that he returned Deborah to Sanders in December 1984. Shephard also attempted to cross-examine Sanders, but his questions pertained to matters irrelevant to the proceedings. Sanders testified that Shephard had not returned the child to her.

Following this testimony, the trial court held Shephard in contempt of court for violating the October 9, 1987, order to produce Deborah. The court ordered Shephard imprisoned in Cook County jail for six months or until Shephard “purge[d] himself of contempt by producing the minor child Deborah Sanders.” The court’s order recited that it had been entered pursuant to hearing on Sanders’ “verified petition for rule to show cause” and that Shephard “appeared pro se.” While Shephard was present in court, he was informed that a hearing date of October 16, 1987, was set on Sanders’ petition for a plenary order of protection. Shephard was also handed a copy of Sanders’ petition for the protection orders and a copy of the court’s emergency, ex parte order of protection. A notice of hearing was sent to Shephard at Cook County jail by certified mail on October 14, 1987.

The record bears no indication that Shephard requested to be brought to court or that the court ordered Shephard returned from jail for the scheduled October 16, 1987, hearing on Sanders’ request for a plenary order of protection, and no attorney filed an appearance on Shephard’s behalf prior thereto. The plenary protection hearing was held in Shephard’s absence. The court inquired of Sanders’ counsel whether Shephard had committed any additional acts in violation of the court’s emergency protection order. In response, counsel informed the court, and Sanders confirmed, that Sanders had received a telephone call from an unnamed woman. This caller informed Sanders that if she wanted to see Deborah alive, Sanders should tell the trial court at the plenary hearing that she “had been lying about everything.” The court determined that it would not “sanction” Shephard at that time for this alleged violation of the court’s emergency protection order. On October 16, 1987, the court entered a plenary protection order which inter alia directed Shephard to immediately return the minor child to Sanders. The plenary order was set to expire by its own terms in two years. A certified copy of the plenary protection order was personally served upon Shephard at Cook County jail by a deputy sheriff on October 23,1987.

A few weeks later, on November 2, 1987, counsel filed an appearance on behalf of Shephard and presented to the trial court a petition to vacate the October 16, 1987, contempt order and release Shephard from jail. Shephard’s counsel also filed a motion to declare unconstitutional certain provisions of the Illinois Domestic Violence Act. On the same day, Sanders filed a verified petition for another rule to show cause, and a copy thereof was given to Shephard’s attorney. The court issued the rule and set November 19, 1987, for hearing on the rule and on Shephard's pleadings.

At the hearing on the parties’ motions, held on November 19, 1987, the court first considered Sanders’ petition for a rule to show cause. At this time, Sanders again presented her testimony and the testimony of family members and investigating police officers to the effect that Shephard had taken Deborah from Sanders in September 1984, was the last person seen with the child in October 1984, and had not returned the child to Sanders at any date following September 1984. Shephard, represented by counsel, testified on his own behalf that he had returned the child to Sanders in December 1984.

The trial court determined that Shephard “knows where the child is and was and is the last person to be seen with her.” The court found that Shephard’s “proffered explanation that he returned the child to [Sanders] in December, 1984, is not credible and is therefore unworthy of belief.” The court found Shephard guilty of contempt for failure to comply with the October 16, 1987, protective order to produce the child and ordered Shephard incarcerated in Cook County jail for six months “or until such time as [he] purges himself of contempt by returning Deborah Sanders” to her mother. The trial court also vacated its October 9 contempt order, but denied Shephard’s motion to declare unconstitutional certain provisions of the Illinois Domestic Violence Act. Shephard’s appeal followed (docket number 87 — 3631).

In May 1988, and again in November 1988, the trial court found Shephard guilty of contempt and ordered Shephard’s continued imprisonment for additional periods of six months from the dates of the orders or until such time as he purges himself of contempt by returning Deborah to her mother. Shephard was notified of each of these proceedings, provided an opportunity to respond, and was given hearings wherein he was represented by counsel. Shephard also appeals from these contempt orders entered in May 1988 (docket numbers 88 — 2070, 88 — 2100), and November 1988 (docket number 88 — 3714).

The following chronology of the proceedings in the trial court is presented to facilitate reference for the purpose of review:

October 2, 1987:
Ex parte emergency protective order entered directing Shephard to appear in court on October 9, 1987, with the child;
October 9, 1987:
Shephard held in contempt of court for his failure to comply with October 2, 1987, order; Shephard ordered imprisoned for six months or until such time as he purged the contempt by returning the child to Sanders;
October 16, 1987:
Plenary order of protection, valid for two years, entered directing Shephard to return the child to Sanders;
November 2, 1987:
Attorney filed appearance for Shephard; Shephard filed petition to vacate October 9, 1987, contempt finding and petition to declare certain provisions of Illinois Domestic Violence Act unconstitutional; Sanders filed new petition for rule to show cause for Shephard’s failure to comply with October 16,1987, order;
November 19 and 20, 1987:
October 9, 1987, contempt order vacated; on petition for rule filed on November 2, 1987, Shephard found in contempt for failure to comply with October 16, 1987, order; Shephard ordered imprisoned for six months, or until such time as he purged the contempt by returning the child to Sanders; Shephard’s motions to declare unconstitutional certain provisions of Illinois Domestic Violence Act and to be released from jail were denied; Shephard appealed from these orders;
May 17, 1988:
Shephard held in contempt for failure to comply with October 16, 1987, order; Shephard ordered imprisoned for six months, or until he purged the contempt by returning the child to Sanders; Shephard appealed from this order;
November 18, 1988:
Shephard held in contempt for failure to comply with October 16, 1987, order; Shephard ordered imprisoned for six months, or until he purged the contempt by returning the child to Sanders; Shephard appealed from this order.

Initially we note that although Shephard appeals from the trial court’s contempt orders of November 1987, May 1988, and November 1988, Shephard has not filed a notice of appeal from the trial court’s emergency and plenary orders of protection. Nevertheless, Shephard’s appellate brief challenges the procedural due process sufficiency of the court’s emergency and plenary protection orders. Because the court’s contempt orders, from which Shephard does appeal, were based upon Shephard’s failure to comply with the terms of the court’s protection orders, we find it appropriate to recognize Shepard’s arguments regarding the procedural due process sufficiency of the court’s emergency and plenary protective orders.

Shephard argues that the trial court’s emergency order of protection entered on October 2, 1987, did not satisfy procedural due process, because he was not given prior notice of Sanders’ petition for the emergency protective order. We disagree. There is no procedural due process defect in obtaining an emergency order of protection without notice to a respondent, when the petition for the emergency protection order is supported by affidavits that demonstrate exigent circumstances justifying entry of an emergency order without prior notice. (See, e.g., Mitchell v. W.T. Grant Co. (1974), 416 U.S. 600, 40 L. Ed. 2d 406, 94 S. Ct. 1895.) The Illinois Domestic Violence Act states that the trial court shall issue an emergency order of protection “regardless of prior service of process or of notice upon the respondent, because *** the harm which [the remedy requested by the petitioner] is intended to prevent would be likely to occur if the respondent were given any prior notice.” Ill. Rev. Stat. 1987, ch. 40, par. 2312 — 17(a)(3)(i).

In the case at bar, Sanders requested the remedy, provided for under the Illinois Domestic Violence Act, that the respondent be “[o]rder[ed] *** to appear in court, *** with a minor child, to prevent *** concealment of the child.” (Ill. Rev. Stat. 1987, ch. 40, par. 2312 — 14(7).) Sanders’ affidavit in support of the emergency order of protection recited that she feared prior notice to Shephard of the petition for the emergency protection order would cause him to further conceal the child. In light of this allegation of harm if Shephard were given prior notice, the procedures utilized in this case to obtain the court’s emergency order of protection did not violate procedural due process.

Shephard also contends that the court’s plenary order of protection was obtained in violation of his procedural due process rights. In our view, Shephard has waived this claim for purposes of review. If Shephard had alerted the court at its November 19, 1987, hearing that Shephard believed he was entitled to a new hearing with respect to the court’s plenary protection order, the trial court could have granted Shephard’s request and held both a new plenary protection hearing and thereafter a new contempt hearing on November 19. However, Shephard did not argue to the trial court that he believed he was entitled to a new hearing on the petition for plenary protective order because of procedural due process violations. Under the facts of this case, Shephard’s argument amounts to an “after-the-fact complaint about an avoidable situation” that Shephard could have prevented had he presented this argument to the trial court in a timely fashion. (Crossman v. Curless (1988), 178 Ill. App. 3d 97, 100-01, 532 N.E.2d 1110.) We are also of the opinion that the evidence presented at the trial court’s November 19, 1987, hearing on Sanders’ contempt petition would have been essentially the same evidence which would have been presented at the hearing on the petition for plenary protection and that the evidence presented at the contempt hearing would have been sufficient to support the entry of a plenary protection order. See Ill. Rev. Stat. 1987, ch. 40, par. 2312 — 14(7); see generally In re Marriage of Hagaman (1984), 123 Ill. App. 3d 549, 462 N.E.2d 1276.

Shephard also argues that provisions of the Illinois Domestic Violence Act regarding emergency protection orders (Ill. Rev. Stat. 1987, ch. 40, par. 2312 — 17(a)(3)), plenary protection orders (Ill. Rev. Stat. 1987, ch. 40, par. 2312 — 19), and body attachment (Ill. Rev. Stat. 1987, ch. 40, par. 2312 — 23(b)(1)) are unconstitutional on their face for lack of adequate procedural due process guarantees. We disagree. As noted above, procedural due process with respect to the issuance of an emergency protection order does not require prior notice to a respondent where there is a showing of exigent circumstances. (See, e.g., Mitchell v. W.T. Grant Co. (1974), 416 U.S. 600, 40 L. Ed. 2d 406, 94 S. Ct. 1895.) Contrary to Shephard’s contention, the Illinois Domestic Violence Act does require prior notice of a hearing with respect to a petition for plenary order of protection. (Ill. Rev. Stat. 1987, ch. 40, par. 2312 — 19; see also In re Marriage of Lenhardt (1989), 176 Ill. App. 3d 429, 531 N.E.2d 123.) Also, since no body attachment (see Ill. Rev. Stat. 1987, ch. 40, par. 2312 — 23(b)(1)) was ordered in the case at bar, Shephard cannot properly contest the Act’s procedural requirements with respect thereto. See, e.g., Kluk v. Lang (1988), 125 Ill. 2d 306, 531 N.E.2d 790.

Having considered Shephard’s arguments regarding the court’s emergency and plenary orders of protection, we turn to Shephard’s claims regarding the trial court’s contempt orders. Shephard asserts that the court’s first contempt order, entered October 9, 1987, was in error because he was not accorded appointment of counsel. Although the trial court later vacated its October 9 contempt order, we elect to address Shephard’s claim on its merits. We note that the court’s contempt order was for indirect contempt, since the basis for Shephard’s failure to comply with the court’s order to produce the child in court required proof of matters outside the immediate knowledge of the court. (See People v. L.A.S. (1986), 111 Ill. 2d 539, 490 N.E.2d 1271 (attorney’s failure to appear in court on specified date and time amounted to indirect contempt because reasons for failure to appear not in immediate direct knowledge of trial court judge).) Furthermore, the court’s indirect contempt order was civil in nature rather than criminal, since the purpose of the court’s order was to compel Shephard’s production of the child rather than punish him for contumacious conduct. See People v. Rodriguez (1987), 162 Ill. App. 3d 149, 514 N.E.2d 1033 (court’s order that respondent be imprisoned until production of child was order for civil contempt); see generally Burr, The Law of Contempt in Illinois, 19 Loy. U. Chi. L.J. 827 (1988).

We hold that Shephard was entitled to counsel at the court’s hearing with respect to whether Shephard should be imprisoned for indirect civil contempt. In so holding, we find applicable to the case at bar the reasoning of the court in Walker v. McLain (10th Cir. 1985), 768 F.2d 1181, in which an individual was imprisoned in an indirect civil contempt action for nonpayment of child support:

“ ‘It is the defendant’s interest in personal freedom, and not simply the special sixth and fourteenth amendment right to counsel in criminal cases, which triggers the right to appointed counsel.’ Lassiter v. Department of Social Services of Durham County, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 *** (1981). It would be absurd to distinguish criminal and civil incarceration; from the perspective of the person incarcerated, the jail is just as bleak no matter which label is used. In addition, the line between criminal and civil contempt is a fine one, and is rarely as clear as the state would have us believe. The right to counsel, as an aspect of due process, turns not on whether a proceeding may be characterized as ‘criminal’ or ‘civil,’ but on whether the proceeding may result in a deprivation of liberty. [Citation.]” 768 F.2d at 1183.

Virtually every reported decision which has considered the issue of whether a respondent is entitled to counsel in an indirect civil contempt proceeding has rejected the argument that a distinction should be drawn between civil and criminal contempt when the respondent faces the possibility of incarceration if held in contempt. The courts have based these decisions upon the United States Supreme Court’s decision in Lassiter, in which the Court recognized a presumption that due process requires the representation by counsel to all persons who may lose their liberty regardless of the nomenclature used to describe the proceeding. In light of Lassiter, courts have uniformly concluded that, when imprisonment is a possible result of the indirect civil contempt proceeding for a respondent’s failure to make court-ordered child support payments, due process requires that the respondent be provided the opportunity to obtain legal representation, and that the indigent respondent be appointed counsel to represent him at the contempt proceeding if he desires legal representation. (Ridgeway v. Baker (5th Cir. 1983), 720 F.2d 1409; Sevier v. Turner (6th Cir. 1984), 742 F.2d 262; Walker v. McLain (10th Cir. 1985), 768 F.2d 1181; Johnson v. Zurz (N.D. Ohio 1984), 596 F. Supp. 39; Lake v. Speziale (D. Conn. 1984), 580 F. Supp. 1318; Cobb v. Green (W.D. Mich. 1983), 574 F. Supp. 256; Mastin v. Fellerhoff (S.D. Ohio 1981), 526 F. Supp. 969; Padilla v. Padilla (Colo. App. 1982), 645 P.2d 1327; Dube v. Lopes (1984), 40 Conn. Sup. 111, 481 A.2d 1293; In re Marriage of Stariha (Ind. App. 1987), 509 N.E.2d 1117; Rutherford v. Rutherford (1983), 296 Md. 347, 464 A.2d 228; Cox v. Slama (Minn. 1984), 355 N.W.2d 401; Tetro v. Tetro (Wash. 1975), 544 P.2d 17; see generally Comment, Indigent Defendant’s Right to Court-Appointed Counsel in Civil Contempt Proceedings for Nonpayment of Child Support, 50 U. Chi. L. Rev. 326 (1983).) This same reasoning based upon Lassiter has led courts to recognize the right to counsel in proceedings for indirect civil contempt when an individual may be imprisoned for his failure to testify before a grand jury under a grant of immunity. In re Di Bella (2d Cir. 1975), 518 F.2d 955; In re Kilgo (4th Cir. 1973), 484 F.2d 1215; United States v. Anderson (8th Cir. 1977), 553 F.2d 1154; In re Grand Jury Proceedings: United States v. Sun Rung Rang (9th Cir. 1972), 468 F.2d 1368.

In our view a respondent imprisoned for failure to produce a minor child is in similar circumstances to those individuals incarcerated for refusal to testify before grand juries, or for failure to make court-ordered child support payments. In each situation, the individual facing imprisonment for indirect civil contempt should be accorded counsel to represent him, including appointed counsel if the respondent is indigent. (Lassiter v. Department of Social Services (1981), 452 U.S. 18, 68 L. Ed. 2d 640, 101 S. Ct. 2153.) We therefore determine that Shephard was entitled to representation by an attorney at the court’s October 9 contempt hearing. If he could not afford an attorney, the court was obligated to appoint one to represent him.

We also agree with Shephard’s assertion that the court’s October 9 contempt hearing was held without adequate notice to him, in violation of procedural due process. Although Shephard was notified that the court’s emergency protection order directed his appearance in court with the child, nothing advised Shephard that his failure to do so would result in an order finding him in contempt and ordering his incarceration. Sanders did not notify Shephard of her intention to seek a rule to show cause contempt finding at the court’s October 9 hearing. Absent prior notice of the contempt consequences of his failure to appear in court with the child on the date specified, the court should not have found Shephard in contempt of court at its October 9 hearing. See People ex rel. Williams v. Williams (1987), 156 Ill. App. 3d 438, 509 N.E.2d 460.

With regard to the court’s contempt orders of November 1987, May 1988, and November 1988, Shephard asserts that, because he has been previously convicted and sentenced for having abducted the child, his subsequent incarcerations for indirect civil contempt violate double jeopardy. We disagree. In order to convict Shephard of child abduction, the State was required to prove that Shephard removed Deborah without Sanders’ consent and that Shephard was Deborah’s putative father. (See Ill. Rev. Stat. 1983, ch. 38, par. 10— 5(b)(3).) In order to determine that Shephard had committed acts of indirect civil contempt, it was necessary for the trial court to determine that Shephard had wilfully violated a valid court order that Shephard produce the minor child in court. (See, e.g., Central Production Credit Association v. Kruse (1987), 156 Ill. App. 3d 526, 509 N.E.2d 136.) Because the elements of the crime of Shephard’s child abduction conviction and the elements in the indirect civil contempt judgment were not identical, Shephard’s imprisonment for indirect civil contempt did not violate double jeopardy. See People v. Totten (1987), 118 Ill. 2d 124, 514 N.E.2d 959; People v. Doherty (1988), 165 Ill. App. 3d 630, 518 N.E.2d 1303; People v. Rodriguez (1987), 162 Ill. App. 3d 149, 514 N.E.2d 1033; see generally Brady, The Illinois Domestic Violence Act of 1986: A Selective Critique, 19 Loy. U. Chi. L.J. 797 (1988).

Shephard further complains that the trial court’s successive contempt orders in themselves violate double jeopardy. In this regard Shephard claims that double jeopardy is violated by the court’s subsequent contempt orders, entered in May and November 1988, when these contempt orders are premised on the same factual basis for the court’s first contempt order entered in November 1987. As a general rule, however, double jeopardy attaches for subsequent or multiple criminal prosecutions, not for subsequent or multiple civil proceedings. (See, e.g., People v. Doherty (1988), 165 Ill. App. 3d 630, 638, 518 N.E.2d 1303.) As stated more fully below, the trial court’s contempt orders in the case at bar are in the nature of civil contempt rather than criminal contempt, since the trial court’s contempt orders contain provisions permitting Shephard to purge himself of the contempt by his return of the child to Sanders and are designed to protect Sanders’ custody interest in her daughter. (See Doherty, 165 Ill. App. 3d at 634-37.) Because the court’s orders pertain to civil contempt, double jeopardy does not bar the court’s successive contempt orders upon the expiration of each six-month period. Doherty, 165 Ill. App. 3d 630, 518 N.E.2d 1303.

Shephard also contends that the trial court’s “continuous and consecutive contempt orders made without any factual basis to believe that [Shephard] can comply with the order, [have] become punitive in nature.” According to Shephard, “It is the repeated actual and potential (apparently without any limit) number of contempt prosecutions in this case that trigger [sic] the protections of the double jeopardy clause.” We disagree.

Based upon our review of the record, we conclude that the trial court’s successive contempt orders in the case at bar do not amount to findings of criminal contempt against Shephard such that principles of double jeopardy would apply. Each of the trial court’s contempt orders grants Shephard the explicit, unconditional right to purge himself of contempt by returning the child to Sanders. The trial court’s oral pronouncements demonstrate that the court’s objective is to benefit Sanders, by recognizing and protecting her right to physical custody of her minor child, and to prompt Shephard’s compliance with the court’s plenary order of protection. We do not believe, under the facts of this case, that the court’s successive contempt orders, now amounting to Shephard’s imprisonment for approximately 19 months, are so onerous in their aggregate that the contempt orders should be characterized as criminal, rather than civil, contempt. See Shillitani v. United States (1966), 384 U.S. 364, 16 L. Ed. 2d 622, 86 S. Ct. 1531 (defendants’ two-year imprisonment for refusal to answer grand jury questions found to be in the nature of civil contempt); see also United States v. Halper (1989), 490 U.S. _, _, 104 L. Ed. 2d 487, 502, 109 S. Ct. 1892, 1902 (“under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution”); Hicks v. Feiock (1988), 485 U.S. 624, 631, 99 L. Ed. 2d 721, 731, 108 S. Ct. 1423, 1429 (“the critical features” that distinguish civil and criminal contempt “are the substance of the proceeding and the character of the relief that the proceeding will afford”).

Shephard also asserts that he is entitled to credit for the time he “served” pursuant to the court’s October 9 contempt order which the court later vacated. Although Shephard contends that this result would be equitable, he has provided to this court no specific legal basis for his argument in this regard. Consequently, we are unable to properly review the validity of Shephard’s claim on this point, and the question is waived on review. See, e.g., In re Marriage of Talmadge (1989), 179 Ill. App. 3d 806, 534 N.E.2d 1356.

Shephard argues that all of the court’s contempt orders must be reversed because they are against the manifest weight of the evidence. However, Shephard had the burden of proving that he was unable, through no fault of his own, to comply with the court's order that he produce the child. (See In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 167; Central Production Credit Association v. Kruse (1987), 156 Ill. App. 3d 526, 509 N.E.2d 136.) We also note that placement of this burden upon Shephard does not violate due process, because the court’s orders were in the nature of civil rather than criminal contempt. Hicks v. Feiock (1988), 485 U.S. 624, 99 L. Ed. 2d 721,108 S. Ct. 1423.

The trial court determined that Shephard had provided no valid basis for his failure to comply with the court’s order that he return the minor child to Sanders. Based upon our review of the record, we cannot say that the trial court’s factual findings were against the manifest weight of the evidence. Sanders testified that Shephard took the child from her in September 1984, and denied Shephard’s assertion that he returned the child to her in December 1984. The trial court credited Sanders’ testimony that Shephard had not returned the child to her. Police investigation revealed that Shephard was the last person seen with the child and that this sighting occurred in October 1984. Accordingly, the evidence presented to the trial court permits the inference that Shephard knows of the child’s whereabouts, is able to obtain her presence in court; and has wilfully failed and refused to do so in violation of the court’s order that Shephard produce the child.

Shephard also argues that the trial court’s contempt orders were improperly influenced by certain testimony from Sanders at the court’s plenary protection hearing. Sanders informed the court at this hearing that an unnamed woman had telephoned Sanders, after the emergency protection order was entered, and told Sanders that if she wanted to see Deborah alive, she should tell the trial court at the court’s plenary protection hearing that she “had been lying about everything.” However, the court’s oral pronouncements at the court’s later contempt hearings indicate that the court gave little or no weight or significance to this incident. As a result, we cannot conclude that the trial court’s contempt rulings were improperly influenced by Sanders’ testimony regarding the telephone call.

For the reasons stated, the orders of the circuit court of Cook County are affirmed.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    TRUSTEES OF CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, Plaintiff, v. La SALLE NATIONAL BANK, as Trustee, Defendants (Wayne Jackson, Petitioner-Appellant; Trustees of Central States, Southeast and Southwest Areas Pension Fund et al., Respondents-Appellees).
    First District (4th Division)
    No. 1-87-1339
    Opinion filed June 22, 1989.
    Rehearing denied August 1,1989.

      Ronald Gertzman, of Chicago, for appellant.
    John O. Collen, of Chapman & Cutler, of Chicago, for appellee Trustees of Central States, Southeast and Southwest Areas Pension Fund.
    J. Mark Fisher and Marc W. O’Brien, both of Schiff, Hardin & Waite, of Chicago, for appellee Johnstown/Consolidated Realty Trust.
   JUSTICE JOHNSON

delivered the opinion of the court:

Petitioner, Wayne Jackson, appeals from an order of the circuit court of Cook County denying his petition to void the sale of commercial property located in Chicago, Illinois. The sole issue presented for review is whether the trial court erred in failing to find that it lacked statutory jurisdiction to appoint a commissioner to conduct a sale of real estate subject to a mortgage foreclosure judgment.

We affirm.

Petitioner is the sole general partner of an Illinois limited partnership that held 100% of the beneficial interest in American Land Trust. American Land Trust held legal title to the commercial office building that was the subject of the action in foreclosure. The property was encumbered by three mortgage liens as of January 3, 1986. The first mortgage was held by respondent Trustees of Central States, Southeast and Southwest Areas Pension Fund. Lincoln National Pension Insurance Company held the second mortgage. The third mortgage was held by Johnstown/Consolidated Realty Trust, also a respondent. These mortgages secured a principal amount of debt in excess of $12 million.

Petitioner’s partnership defaulted on the mortgage payments and respondents and Lincoln filed to foreclose their mortgage lien on the property. Petitioner’s partnership then filed a Chapter 11 voluntary bankruptcy on February 13, 1986. On April 28, 1986, an agreed bankruptcy order was entered which set the terms of an agreed order of foreclosure for the judicial sale of the property. Petitioner’s partnership was given a grace period in which to find a third-party purchaser for the property. The partnership failed to find a purchaser within the specified period of time.

On June 13, 1986, the agreed order for judgment of foreclosure was entered. This order and the agreed bankruptcy order called for the judicial sale of the property on July 7, 1986. A commissioner was appointed by the trial court to take bids on the property in the bankruptcy court. This allowed the bankruptcy judge to observe the sale. The sale took place on July 24, 1986. Johnstown/Consolidated Realty Trust was the only bidder at $10.4 million. On August 15, 1986, respondents and Lincoln jointly moved to confirm the sale. The sale was confirmed on September 3,1986.

Petitioner then filed a petition to set aside the order confirming sale and to void the commissioner’s sale on December 16, 1986, more than three months after the sale had been confirmed. Petitioner argued that the sale was void because, although the agreed foreclosure order was entered in circuit court, the sale was held on Federal property in a bankruptcy courtroom. On January 15, 1987, after the property was sold to a third-party purchaser, petitioner filed an amendment to set aside the order confirming sale, to avoid the commissioner’s sale, and to void a portion of the judgment foreclosure.

On March 3, 1987, the amended petition was denied. The court found that its order of June 13, 1986, was not void and that there were no grounds to vacate, since the June 13 order was entered with petitioner’s consent and no motion to vacate was filed until six months after its entry. This appeal followed.

Petitioner contends that the court order confirming the sale of the real estate is void and, therefore, subject to collateral attack. “Any petition to vacate an order, judgment, or decree, filed more than 30 days after the entry thereof, even though made to the court that rendered it, constitutes a collateral attack.” (People v. O’Keefe (1960), 18 Ill. 2d 386, 391.) In the case of collateral attack, all presumptions are in favor of the validity of the attacked judgment and the face of the record. (Scheller v. Trustees of Schools (1978), 67 Ill. App. 3d 857, 866.) In the area of judicial sales, collateral attacks are limited to sales which are void because of a lack of jurisdiction of the court over the subject matter or person or due to fraud in procuring the sale. City of Chicago v. Central National Bank (1985), 134 Ill. App. 3d 22, 26.

In the instant case there are no allegations of fraud in the sale proceedings nor is there a claim that the court lacked subject matter or personal jurisdiction over the sale. Petitioner maintains that the trial lacked statutory jurisdiction to appoint a commissioner to conduct the sale pursuant to article VI, section 14, of the 1970 Illinois Constitution. Section 14 provides, in pertinent part, that “[tjhere shall be no fee officers in the judicial system.” Ill. Const. 1970, art. VI, §14.

Petitioner cites Factor v. Factor (1975), 27 Ill. App. 3d 594, to support his proposition that it is jurisdictional error for the court to appoint a commissioner to conduct the sale in question. (Factor, 27 Ill. App. 3d at 597.) Factor was a post-dissolution of marriage proceeding which involved the direct appeal of a contested court order directing a commissioner to conduct the private judicial sale of marital property. The Factor court held that article VI, section 14, of the 1970 Illinois Constitution prohibits the appointment of a commissioner for the purpose of selling real estate. Factor, 27 Ill. App. 3d at 597.

Petitioner asserts, pursuant to Factor, that the sale was void because the trial court lacked statutory authority to appoint a commissioner. However, even if the trial court lacked statutory authority to appoint a commissioner, the error would not be jurisdictional. The error would result in a voidable judgment and would not, therefore, be the proper subject of a collateral attack. Stark v. Stark (1955), 7 Ill. App. 2d 442, 444; Phillips v. O’Connell (1947), 331 Ill. App. 511, 528-29.

The case at bar is analogous to the situation in Phillips v. O’Connell (1947), 331 Ill. App. 3d 511. In Phillips, a belated objection was made to the appointment of a special commissioner on the grounds that the trial court lacked statutory authority to refer chancery matters to a special commissioner. The appellate court held that the trial court properly had jurisdiction of the subject matter and the parties and that the improper reference resulted in a proceeding that was voidable at most. We, therefore, find that the trial court did not err in finding that the appointment of a commissioner to take bids at the sale in question did not result in a void proceeding.

Further, the case at bar also involves the jurisdiction of the Federal bankruptcy court. The agreed bankruptcy order entered in Federal bankruptcy court provided for the appointment of a commissioner to conduct the sale by requiring entry of the agreed foreclosure order which provided for the appointment of a commissioner. Respondents are correct in their assertion that the agreed bankruptcy order supersedes the applicable State law regardless of any alleged impropriety of the sale by an appointed commissioner.

“The [bankruptcy] court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the rising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.” 11 U.S.C.A. § 105(a) (West Supp. 1989).

“Article I, section 8 of the United States Constitution provides that the Congress shall have power to establish uniform bankruptcy laws throughout the Nation. Any such laws promulgated by the Congress operate to suspend any state law in conflict with them. [Citations.]” (Brown v. Buchanan (E.D. Va. 1975), 419 F. Supp. 199, 201.) We, therefore, find that the appointment of the commissioner pursuant to the agreed bankruptcy order entered by the Federal bankruptcy court was valid even if the Illinois Constitution were to be construed so as to prohibit the appointment of the commissioner in these circumstances.

Finally, we will address vacation of the order confirming the sale pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401). The trial court, after finding that the order of June 13, 1986, was not void, also concluded that petitioner did not meet the requirements of section 2 — 1401 to have the order vacated on equitable grounds. A section 2 — 1401 petition invokes the court’s equitable power to vacate a judgment attended by unfair, unjust or unconscionable circumstances, and it is incumbent on the petitioner to show that his meritorious defense was diligently brought to the court’s attention. City of Chicago v. Central National Bank (1985), 134 Ill. App. 3d 22, 25.

We are in agreement with the trial court that petitioner failed to diligently protect his alleged rights. Since the order was entered with petitioner’s consent, the motion to vacate was not raised until six months after its entry, and petitioner objected to confirmation of the sale on other grounds, we find that the trial court did not err in denying petitioner’s petition to set aside the order confirming the sale and voiding the commissioner’s appointment.

Petitioner also alleges that the commissioner’s taking of the bids in the foreclosure sale prejudiced him because it dissuaded potential purchasers from participating in a sale which would later be declared void. This argument, however, assumed that petitioner’s posture is legally correct. We find, to the contrary, that petitioner’s argument is without merit and, therefore, petitioner was not prejudiced by the appointment of the commissioner.

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

Affirmed.

LINN and McMORROW, JJ., concur.


author: JUSTICE LINN

text:
      In re CUSTODY OF YVONNE GENEVIEVE CARUSO, a Minor (Frank A. Caruso, Petitioner-Appellee, v. Elizabeth Murphy, Respondent-Appellant).
    First District (4th Division)
    No. 1-87-3819
    Opinion filed June 22, 1989.

      Walter A. Hess, of Chicago, for appellant.
    Joan I. Norek, of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

The circuit court of Cook County awarded attorney fees and costs to petitioner, Frank Caruso, under section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). The court entered the order against respondent, Elizabeth Murphy, now known as Elizabeth Smeja, and Elizabeth’s attorney, Walter Hess. Elizabeth appeals, contending: (1) the present version of section 2 — 611 was not in effect at the time the parties filed their pleadings, and (2) the trial court abused its discretion in making the award.

We affirm the order of the trial court in all respects.

Background

The record shows that on June 19, 1985, Frank petitioned the trial court for custody of Yvonne. (See Ill. Rev. Stat. 1985, ch. 40, par. 601.) Frank alleged, inter alia, that Yvonne was born on October 4, 1984, that he was her father, and that it would be in Yvonne’s best interests for her to be placed in his custody. Elizabeth filed her response to Frank’s custody petition on December 3, 1985. Elizabeth alleged, inter alia, that Frank was not Elizabeth’s father.

On January 8, 1986, the trial court ordered that Frank, Elizabeth, and Yvonne be administered the necessary blood tests to determine Frank’s paternity. On January 22, 1987, the court held a contested trial on the issue of paternity. On February 5, 1987, the trial court entered an order declaring Frank to be Yvonne’s natural father.

In addition to its paternity order, the trial court also granted Frank leave to file a petition for sanctions pursuant to section 2 — 611. Frank charged Elizabeth with contesting his paternity despite the following pertinent facts: (1) Frank was in the hospital delivery room with Elizabeth, with her consent, when Yvonne was bom; (2) Frank is named as Yvonne’s father on her birth certificate, the truth of which Elizabeth certified; (3) blood tests were sent to Hess, Elizabeth’s attorney, around March 7, 1986, showing a 99.99% probability that Frank was Yvonne’s father; (4) Frank and Elizabeth lived together during the time of Yvonne’s conception; and (5) only Elizabeth could have obtained a court order, via a paternity action, requiring blood testing of a man outside of the present lawsuit, and that she never brought such an action by the time of the paternity trial.

Frank additionally alleged that Elizabeth delayed the paternity trial twice, once to locate a man for blood testing, and the second continuance for obtaining the blood tests; at the paternity trial, Elizabeth submitted no evidence of any other blood test, her sole evidence was her uncorroborated testimony that she and Frank did not have intimate relations during the time of Yvonne’s conception; and the trial court found this testimony unworthy of belief.

On February 18, 1987, Elizabeth filed a “Third Party Complaint for Paternity,” in which she named the above-mentioned man as Yvonne’s father. Elizabeth filed her response to Frank’s petition for sanctions on March 27, 1987. She again claimed that Frank was not Yvonne’s father. Elizabeth’s pertinent allegations included: Yvonne’s birth certificate did not name Frank as the father when Elizabeth signed it, but Frank later agreed to have his name entered as the father; the paternity test assumed that Frank and Elizabeth had intimate relations, which they did not; and assuming intimate relations had occurred, the probability of Frank’s paternity would not be 99.99%, but rather only 99%.

Elizabeth also alleged that the man who she claimed to be Yvonne’s father admitted his paternity and was initially willing to undergo testing. However, the man was outside of Illinois for most of 1986; she had spoken with him in November 1986, but could not obtain an address for service of process. Further, she did all that she could do to bring in this man, which accounted for the continuances of the paternity hearing.

Elizabeth further alleged that, under Illinois law, she had an absolute right to a paternity trial, regardless of the results of the paternity test. Additionally, the trial court was neither fair nor impartial. Rather, the court prejudged the case, intimidated and berated Elizabeth, and generally acted on Frank’s behalf. Elizabeth also alleged that section 2 — 611, as amended, which required Hess’ signature, became effective long after Elizabeth had filed her response to Frank’s custody petition.

On April 1, 1987, the trial court held a hearing on Frank’s petition for sanctions. The trial court first repeated its finding, which it made at the paternity trial, that Elizabeth’s uncorroborated testimony was unworthy of belief. The court next found that Hess failed to make a reasonable investigation to determine whether Elizabeth’s pleading was well grounded in fact. Pursuant to section 2 — 611, the trial court awarded Frank $1,100 in attorney fees and $56 in costs. The court assessed the award against both Elizabeth and Hess. Elizabeth appeals.

Opinion

Prior to its recent amendment, section 2 — 611 of the Code of Civil Procedure subjected a party to sanctions for pleading allegations and denials made without reasonable cause and found to be untrue. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611.) However, section 2 — 611, as amended effective November 25, 1986, requires an attorney to sign pleadings and other papers filed with the court. By his signature, the attorney certifies that he has made a reasonable inquiry into its basis and believes that it is well grounded in fact, warranted by existing law, and is being made in good faith. Ill. Rev. Stat. 1987, ch. 110, par. 2-611.

Section 2 — 611, as it now reads, is intended to prevent counsel from making assertions of fact or law without support. We have interpreted the section as imposing an obligation on an attorney not to file frivolous pleadings. Pleadings and other papers filed in violation of section 2 — 611 subject the party, the party’s attorney, or both, to an appropriate sanction. That sanction may include an order to pay the other party’s attorney fees and costs. People v. King (1988), 170 Ill. App. 3d 409, 413-14, 524 N.E.2d 723, 726.

I

We first address Elizabeth’s contention that the amended section 2 — 611 does not apply to this case. Elizabeth notes that the amended provision became effective on November 25, 1986. Thus, it was not in effect at the time she filed her response to Frank’s custody petition. She argues that Hess was not required to sign, nor did he sign, her pleading.

Frank notes, however, that the amended provision was effective on the date of the paternity trial, January 22, 1987. He claims that immediately prior to trial, the court requested each attorney to sign his or her pleading, and that each attorney did so. Hess denies that he signed Elizabeth’s pleading.

The appellate record does not contain a record of the paternity trial. At oral argument in this court, Hess was questioned as to why he failed to incorporate the paternity trial record into the record on appeal, since the issue of his signature was important to the case. He responded that the paternity trial was not at issue, but rather the hearing on sanctions.

This statement is error. An appellant carries the burden of presenting a sufficiently complete record of the proceedings at trial to support a claim of error. In the absence of such a record on appeal, it will be presumed that the order entered by the trial court conformed to the law and had a sufficient factual basis. Any doubts that may arise from the incompleteness of the record will be resolved against the appellant. Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (and cases cited therein).

Applying these principles to the case at bar, it is clear that we must reject this contention. Elizabeth is the appellant. Therefore, she carried the burden of supplying this court with a complete record that we can review. Without the record of the paternity trial, we, of course, cannot even determine what occurred at the trial, much less determine whether the trial court abused its discretion. In the absence of the record, we must assume that Hess signed Elizabeth’s pleading, and that the trial court conformed with the law. Consequently, we hold that the amended section 2 — 611 applies to the case at bar.

II

Elizabeth next claims that the trial court abused its discretion in imposing section 2 — 611 sanctions against her and Hess. Elizabeth contends that she had an absolute right to a judicial determination of paternity, regardless of the paternity test results and the other evidence. Additionally, Hess contends that Elizabeth’s denial of Frank’s paternity obliged him to seek a judicial determination.

Hess misperceives his professional obligations. “Section 2— 611 imposes upon both client and counsel the duty to make a reasonable inquiry into the facts to support a legal claim or defense before pleadings and other legal papers are filed with the court.” (Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 622, 532 N.E.2d 595, 600.) In Chicago Title & Trust, this court thoroughly reviewed the nature and extent of an attorney’s duty of reasonable inquiry; we need not repeat our analysis here. It suffices to say that “if all the attorney has is his client’s assurance that facts exist, he has not satisfied his obligation.” (177 Ill. App. 3d at 624, 532 N.E.2d at 601, quoting Schwarzer, Sanctions Under the New Federal Rule 11 — A Closer Look, 104 F.R.D. 181, 186-87 (1985).) We note lastly that we will not disturb a trial court’s imposition of sanctions absent an abuse of discretion. 177 Ill. App. 3d at 625, 532 N.E.2d at 601.

Hess, of course, has a professional obligation to Elizabeth. However, we agree with the court in Van Berkel v. Fox Farm & Road Machinery (D. Minn. 1984), 581 F. Supp. 1248, which held that an attorney has a professional duty to promptly dismiss a baseless lawsuit, even over the objection of the client, when the attorney learns that the client has no case. The court reasoned:

“Attorneys are officers of the court and their first duty is to the administration of justice. Whenever an attorney’s duties to his client conflict with those he owes to the public as an officer of the court, he must give precedence to his duty to the public. Any other view would run counter to a principled system of justice.” (581 F. Supp. at 1251.)

Further, we “emphatically reject any suggestion that a lawyer may shield his transgressions behind the simplistic plea that he only did what his client desired.” (Blair v. Shenandoah Women’s Center, Inc. (4th Cir. 1985), 757 F.2d 1435, 1438.) Additionally, we hold that an attorney may not shield his transgressions behind the equally simplistic plea that he was only exercising his right to a trial.

After reviewing the record, we cannot say that the trial court abused its discretion in imposing sanctions against Elizabeth and Hess. As stated earlier, Frank’s petition for section 2 — 611 sanctions lists the facts which Hess could have discovered after making a reasonable inquiry. Frank was in the hospital delivery room with Elizabeth, with her consent, when Yvonne was born. Frank is named as Yvonne’s father on her birth certificate, the truth of which Elizabeth certified. Blood tests were sent to Hess showing a 99.99% probability that Frank was Yvonne’s father. Frank and Elizabeth lived together during the time of Yvonne’s conception. Also, only Elizabeth could have obtained a court order, via a paternity action, requiring blood testing of a man outside of the present lawsuit; she never brought such an action by the time of the paternity trial. Approximately 10 months elapsed between the time Hess received the paternity test report and the paternity trial.

At trial, Elizabeth’s only evidence of Frank’s nonpaternity was her uncorroborated testimony, which the trial court found unworthy of belief.

“An attorney is obligated to dissuade his client from pursuing specious claims, and thereby avoid possible sanctions by the court, as well as unnecessary costs of litigating a worthless claim. Although reasonable attorneys may differ about whether a particular claim is deserving of litigation, the obligation [1] to counsel the client against bringing meritless claims, and [2] to conduct reasonable inquiry before instituting suit, are clear and unambiguous in all cases.” Mohammed v. Union Carbide Corp. (E.D. Mich. 1985), 606 F. Supp. 252, 261.

We uphold the trial court’s imposition of section 2 — 611 sanctions against Elizabeth and Hess.

For the foregoing reasons, the order of the circuit court of Cook County is affirmed in all respects.

Affirmed.

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


author: PRESIDING JUSTICE JIGANTI

text:
    PAMELA SZYMAKOWSKI, Guardian of the Estate of Steven John Szymakowski, a Minor, et al., Intervening Plaintiffs-Appellants, v. VERBENA SZYMAKOWSKI, Adm’r of the Estate of Steven Szymakowski, Deceased, Plaintiff-Appellee (Martin Marketing Corporation, Defendant).
    First District (4th Division)
    Nos. 1-88-1496, 1-88-1659, 1-88-1660 cons.
    Opinion filed June 22, 1989.

      Robert Schey & Associates, of Chicago (Robert Schey and Earle S. Karno, of counsel), for appellants.
    Robert W. Karr & Associates, Ltd., of Chicago (Robert W. Karr and John J. Dwyer, Jr., of counsel), for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

This appeal arises out of the settlement of a wrongful death and survival actions. Intervening plaintiffs appeal the portion of the distribution order awarding fees to the attorneys for the administrator. No objection is raised regarding the amount of the settlement.

Steven Szymakowski died on December 25, 1986, as a result of injuries he sustained during a fire and explosion of a fuel storage tank. Steven was survived by his father Frank Szymakowski, his mother Verbena Szymakowski, and two minor children Steven John and Francis William. The children were both from previous marriages — Steven John by the marriage to Pamela Szymakowski, and Francis William by the marriage to Denise Szymakowski.

Shortly after Steven’s death, the trial court appointed Frank to serve as special administrator of the decedent’s estate. As special administrator, Frank filed a survival action and a wrongful death action against Martin Marketing Corporation, not a party to this appeal. After filing the complaint, Frank was appointed administrator of the estate and given letters of office under the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. llO1^, par. 1 — 1 et seq.). However, the trial court subsequently found Frank ineligible to serve as administrator. Verbena was then appointed successor administrator. Verbena, through her attorneys, Robert W. Karr & Associates, pursued the wrongful death and survival actions. Pamela and Denise, acting in their capacity as guardians of the estate of their minor children, were granted leave to intervene. As intervening plaintiffs in the wrongful death and survival actions, Pamela and Denise, and their attorneys, Robert Schey & Associates, were entitled to appear and be present during hearings, pretrials, and settlement negotiation conferences but were limited to the filing of pleadings only by leave of court.

After several months of negotiations, a settlement proposal was presented before the trial judge. Following a hearing, the trial judge entered a distribution order which provided for a structured settlement for the minor children, the beneficiaries of the estate. The present cash value of the settlement was approximately $600,000. Pursuant to a one-third contingency fee agreement between Verbena, as administrator of the estate, and her attorneys, Karr & Associates, the trial judge also ordered the defendant in the wrongful death and survival actions to issue a check for $182,618 to Karr & Associates in attorney fees. An order was also entered finding that Robert Schey & Associates, the attorneys for Pamela and Denise, guardians of the estate of their minor children, had no lien upon the funds which were the subject of the distribution order. The distribution order was subsequently approved by a judge in the probate division.

On appeal, the intervening plaintiffs argue that Karr & Associates are not entitled to attorney fees because they breached their fiduciary duty to the minor children, the beneficiaries of the estate. Although they give a lengthy account of the events surrounding the opening of the estate and the pursuit of the wrongful death and survival actions, the intervening plaintiffs essentially argue that Karr & Associates breached their fiduciary duty to the minor children by asserting a recovery for Verbena and Frank, the parents of the decedent.

It is well established that an administrator of an estate stands in a fiduciary relationship to the beneficiaries under the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, pars. 1, 2) and therefore is obligated to act in good faith to protect their interests. (Johnson v. Village of Libertyville (1986), 150 Ill. App. 3d 971, 974, 502 N.E.2d 474, 477.) Similarly, an attorney who represents an administrator stands in a fiduciary relationship to the beneficiaries. (In re Estate of Halas (1987), 159 Ill. App. 3d 818, 825, 512 N.E.2d 1276, 1280.) If an attorney acts in bad faith and against the interest of the beneficiaries of the estate, attorney fees may be denied. Halas, 159 Ill. App. 3d at 831, 512 N.E.2d at 1284.

In the instant case, Karr & Associates represented Verbena, the administrator of the estate. Verbena rightfully received letters of administration pursuant to section 9 — 3 (Ill. Rev. Stat. 1985, ch. 110x/2, par. 9 — 3). As administrator, Verbena had the sole right to pursue and control the wrongful death action. (Rodgers v. Consolidated R.R. Cory. (1985), 136 Ill. App. 3d 191, 482 N.E.2d 1080.) Any recovery in a wrongful death action is for the benefit of the surviving spouse and next of kin of the decedent. Ill. Rev. Stat. 1987, ch. 70, par. 2.

Both parties agree that the two minor children are considered “next of kin” and entitled to recover under the Wrongful Death Act. During the course of litigation, Karr & Associates made several representations that Verbena and Frank, parents of the decedent, may also fall under the category of “next of kin,” thereby entitling them to recover under the Wrongful Death Act. According to the intervening plaintiffs, these representations were made on at least three occasions: in an affidavit of heirship filed with the court on February 25, 1987, in oral argument before the court during the proceedings of March 6, 1987, and in oral argument before the court during the proceedings of April 1,1987.

Intervening plaintiffs maintain that under Maga v. Motorola, Inc. (1987), 163 Ill. App. 3d 524, 516 N.E.2d 774, Frank and Verbena were not entitled to recover in the wrongful death action and therefore the efforts on the part of Verbena, as administrator, and Karr & Associates as her attorneys, to seek recovery constitutes a breach of fiduciary duty to the minor children, the beneficiaries of any recovery in the wrongful death action.

We disagree with intervening plaintiffs’ contention that asserting recovery for the parents in the instant case constituted a breach of fiduciary duty. In Maga, the decedent was survived by a wife, parents, and siblings. On appeal, the court considered the certified question of “ ‘[w]hether the term “next of kin” as used in section 2 of the Wrongful Death Act means the persons nearest of kindred to the decedent, that is, those who are most nearly related to him by blood, or, whether said term means only those who are entitled to take under statutory distribution of intestate’s estate.’ ” (Maga, 163 Ill. App. 3d at 526, 516 N.E.2d 775.) In determining that only the wife could recover, the court in Maga held that only those persons entitled to share in decedent’s intestate estate under the Probate Act qualify as beneficiaries under the Wrongful Death Act.

Under Maga, Frank and Verbena clearly are not entitled to recover under the Wrongful Death Act. However, Maga was decided in November 1987. By letter dated July 16, 1987, an attorney for Verbena informed the attorneys for the guardians that the parents were making no claims for compensation. Thus, Karr & Associates abandoned any claim for recovery for Frank and Verbena before Maga was decided.

At the time the claims for compensation were considered, there was a question as to whether the term “next of kin” in the wrongful death statute equated with the provisions in the Probate Act concerning intestate distribution. In Johnson v. Village of Libertyville (1986), 150 Ill. App. 3d 971, 502 N.E.2d 474, decedent was survived by his wife and parents but no children. In allowing recovery under the Wrongful Death Act for both the spouse and the parents, this court departed from the traditional interpretation that only those entitled to take under the intestate distribution scheme could recover in a wrongful death action. The same departure was undertaken in Rusher v. Smith (1979), 70 Ill. App. 3d 889, 388 N.E.2d 906. While we recognize the obvious weakness in asserting recovery for Frank and Verbena when the decedent is survived by children, we believe that asserting such a position was a reasonable extension of the departure undertaken in Johnson and Rusher.

Furthermore, the mere fact that an administrator may have a personal interest in the outcome of a wrongful death action is not by itself so conflicting or so adverse to the interest of the other beneficiaries that both interests cannot be protected by the administrator. (Johnson, 150 Ill. App. 3d at 975, 502 N.E.2d at 477.) Intervening plaintiffs, who make no objections to the $600,000 settlement, fail to indicate how these representations adversely affected the interest of the beneficiaries. (See Halas, 159 Ill. App. 3d at 831, 512 N.E.2d at 1284.) Thus, we find no merit to the intervening plaintiffs’ contention that the representations concerning a recovery for Frank and Verbena made by Karr & Associates but abandoned prior to Maga constitute a breach of fiduciary duty.

Intervening plaintiffs argue that even if entitled to attorney fees, Karr & Associates are not entitled to take their one-third fees from the up-front cash available under the settlement agreement. Intervening plaintiffs maintain that the terms of the agreement for legal services were never disclosed to the beneficiaries of the estate and the agreement between Verbena and Karr & Associates failed to indicate that the one-third fee would be taken from the up-front cash available under the structured settlement agreement. Intervening plaintiffs conclude that these omissions violated the requirements of Rule 2 — 106 of the Illinois Code of Professional Responsibility (107 Ill. 2d R. 2 — 106), which deals with the obligation of attorneys to disclose their terms of representation. Karr & Associates owed this obligation to Verbena, the administrator. There is no argument made concerning any lack of understanding or knowledge on the part of Verbena regarding the terms of their representation. Therefore, we reject intervening plaintiffs’ contention that Karr & Associates are not entitled to their fees.

Finally, intervening plaintiffs, or rather their attorneys, argue that they are entitled to attorney fees from the wrongful death recovery because they are the ones who really represented the interest of the beneficiaries. We fail to find any merit to this novel argument advanced without any citation to authority.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

LINN and JOHNSON, JJ., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT STIFF, Defendant-Appellant.
    First District (6th Division)
    No. 1-86-3077
    Opinion filed June 23, 1989.

      Michael Pelletier and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Marie Quinlivan Czech, and Ina C. Kantor, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant Vincent Stiff was convicted of aggravated criminal sexual assault and aggravated battery. The trial court sentenced him to a term of 23 years’ imprisonment. No sentence was imposed for the charge of aggravated battery. Defendant appeals, contending that the trial court improperly limited testimony regarding the victim’s use of drugs; that prosecutorial remarks were prejudicial; and that his conviction for aggravated battery should be vacated where it was a lesser included offense of aggravated criminal sexual assault based on bodily harm.

The victim testified that on June 6, 1985, shortly after midnight, she drove to a game room where she played pool and looked for a friend, Willie. She saw defendant, whom she denied knowing, with several other men and heard him being called “Flavor.” When the victim left the game room and walked across the street to her car, defendant approached her, grabbed the keys, pushed her into the car, and drove away. As she struggled, defendant struck her in the face with his fist, saying that he would take her to Willie. He parked the car and forced the victim into an abandoned building, repeatedly striking her in the face. Defendant raped the victim, as he held her down and continued to beat her. Defendant apologized, drove her back to the game room, and exited the car.

The victim testified that she drove for one block, stopped a police car, and reported that she had just been raped and beaten. Officer Quintín Black returned with her to the abandoned building, where they found her wallet, which she had not realized was missing. The victim was then treated at the hospital for her injuries. The victim identified defendant’s photograph in a mug book and later identified him in a lineup.

Officer Gregory Baiocchi testified that he met Black and the victim at the abandoned building on June 6, 1985, where he saw fresh blood on the remnants of a hide-a-bed.

Officer Black testified that at 3 a.m. on June 6, 1985, the victim stopped his squad car. She was crying and there was blood around her mouth. They went to the abandoned building, which was filled with debris and animal excrement. The victim’s wallet was lying on the floor.

Dr. Barbara Robinson testified that on June 6 she examined the victim at the hospital. The victim was in a great deal of pain. She had suffered a fractured nose, perforated right eardrum, blackened right eye, cut lip, other facial lacerations, a sprained left ankle, and decreased range of motion in her neck and right arm. The vaginal vault held a large amount of white fluid and blood which did not result from menstruation. There was a tear at the base of the vaginal opening and blood, indicating forced intercourse. On cross-examination, Dr. Robinson emphasized that the vaginal abrasion was inconsistent with consenting intercourse, particularly where the victim had vaginally delivered two children.

Officer Lawrence Fenlon testified that the victim made the photographic identification. She said that defendant’s name was “Little Vince” and gave him defendant’s telephone number, which somebody had given her.

Officer Richard Rybicki testified that on June 25, 1985, he approached defendant on the street. Defendant ran, and Rybicki chased and apprehended him.

Mary Baker and Jenevae Sawyer testified for defendant that they had seen the victim and defendant together in the neighborhood. They did not know the victim personally.

Willie Bolden testified for defendant that he had planned to meet the victim at the game room on June 5 at 11:30 p.m. but she did not arrive. The court sustained the State’s objections to questions of Bolden regarding whether he had ever used narcotics with the victim and whether he had ever had sex with her.

Defendant testified that at 11:30 p.m. on June 5 he saw the victim, who used to be his girlfriend. They argued, and he slapped her. Shortly thereafter, the victim offered him a ride. They drove to his cousin’s apartment, where they drank champagne, watched a movie and had sex. The victim was high on crack. She dropped defendant off shortly after midnight. The court sustained the State’s objections to defense counsel’s questions regarding whether defendant could remember any other times when the victim appeared high.

On cross-examination, defendant testified that he first met the victim in summer 1984, when she was looking for crack. He helped her buy some crack. When he saw the victim on the night of June 5 she was not injured. He denied seeing her on June 6 and denied causing her injuries.

In rebuttal, the State introduced evidence of defendant’s two prior robbery convictions.

Defendant first contends that the trial court improperly prevented the introduction of evidence showing the victim used narcotics. On direct examination, defendant was asked whether he had ever gotten high with her. The court sustained an objection as to foundation. Defendant then testified that he had seen the victim use narcotics on some occasion. Asked when, defendant replied, “The first night I met her.” The trial court sustained an objection as to relevancy, struck the answer and instructed the jury to disregard the question and answer.

In addition, Bolden was asked whether he used narcotics with the victim at their first meeting, three days before the rape. The court sustained objections, struck the affirmative answer, and instructed the jury to disregard it. Defendant now complains that evidence of the victim’s use of narcotics on the night of the offense was vital to her ability to observe, recall and accurately report events, and that the impact of general drug use would affect her overall truthfulness and credibility. Defendant concedes that no offer of proof was made at trial, but maintains that the “details” can be brought out in a new trial.

Notwithstanding the failure to object at trial or include the issue in his post-trial motions (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124), and the failure to introduce an offer of proof (see People v. Stalions (1986), 139 Ill. App. 3d 1033, 488 N.E.2d 297), we will address the issue. While evidence that a witness used drugs at or near the time of the crime may show an impaired ability to observe, recollect and narrate (People v. Castiglione (1986), 150 Ill. App. 3d 459, 501 N.E.2d 923), in the present case the stricken questions and answers did not focus on the victim’s use of drugs at or near the time of the offense and therefore were improper. (See People v. Castiglione (1986), 150 Ill. App. 3d 459, 501 N.E.2d 923.) We find no abuse of discretion in the trial court’s decision to limit this area of cross-examination. Moreover, as to the victim’s use of drugs on the night of the offense, the court properly permitted testimony from her that she used no drugs that night and testimony from defendant that the victim did use crack that night.

Defendant’s reliance on People v. Stations is misplaced. In Stations, this court held that it was improper to restrict cross-examination regarding the witness’ glue-sniffing habit where an offer of proof showed the habit had lasted three years and may have affected her mental processes. No such suggestion or offer of proof was presented here which might place this case in a factual setting similar to Stations.

Defendant next contends that prosecutorial comments in rebuttal closing argument distorted the evidence and unfairly attacked the defense. A prosecutor is allowed a great deal of latitude in closing arguments, and absent a clear abuse of discretion, the trial court’s determination as to the propriety of the argument will be followed. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.) The prosecutor argued here:

“PROSECUTOR: *** [T]here is no culture that accepts this, that tolerates this. None that I know of.
Ladies and gentlemen, defendant is surrounded by guilt. He has nowhere to go so he decides to kick out and lash out at the police and kick out and lash out—
DEFENSE COUNSEL: Objection, judge.
PROSECUTOR: —at [the victim]—
THE COURT: Overruled.
PROSECUTOR: —because he is stuck, he is trapped because the defense would have you believe that everybody lied here. Everybody made this up.”

These comments were supported by the evidence of defendant’s flight from the arresting police officer, the victim’s and Dr. Robinson’s evidence of the injuries suffered, and defendant’s admission that he struck the victim. The comments were not improper.

Defendant complains of prosecutorial argument that the case was “about freedom to go out at night”; “freedom to visit whoever you want to see”; “freedoms to shoot a game of pool, be with friends”; and “those such as the defendant who would take away those kinds of freedoms so he can satisfy his own dirty, filthy, selfish needs.” A prosecutor may comment on the evils of crime, denounce the accused, and urge the fearless administration of justice. People v. Thomas (1988), 172 Ill. App. 3d 172, 526 N.E.2d 467; People v. Grover (1983), 116 Ill. App. 3d 116, 451 N.E.2d 587.

Defendant also complains of the prosecutor’s statements that defendant could not remember when he first met the victim and that defendant gave two different stories, first saying he was going to help her buy crack and then later saying he was taking her to visit her aunt. Defendant testified on cross- and re-cross-examination that he met the victim outside a pool hall when she was looking for “happy sticks.” He drove her to a place where she bought some crack and smoked it. The victim then asked defendant to drop her off at the hospital to visit her aunt. On recross, the prosecutor insisted, “Didn’t you just testify two minutes ago that you met her because she wanted to buy happy sticks?” Defendant again stated: “That’s when I first met her. *** She was looking for a stick. She smoked the stick, she said, ‘Would you drop me off at the hospital? My auntie down there.’ I say, ‘Yeah, I drop you off.’ ” Thus, defendant did not offer two contradicting stories of their first meeting.

It is improper for a prosecutor to misstate the evidence. However, no reversal is necessary here where the issue of whether defendant drove the victim to see her aunt in the hospital was not a material factor in defendant’s conviction, particularly where he was able to testify about the victim’s alleged use of drugs on that first meeting. See People v. McKnight (1979), 72 Ill. App. 3d 136, 390 N.E.2d 379.

The prosecutor also commented that a person who has been convicted of a felony does not have respect for telling the truth. The prosecutor is permitted to refer to defendant’s prior conviction in regard to defendant’s credibility. People v. Smith (1980), 88 Ill. App. 3d 897, 410 N.E.2d 973.

In regard to the characterization of defendant as a liar, we have held that it is improper to charge a defendant with lying only where there is no basis for that charge in the record. (See People v. Thomas (1988), 172 Ill. App. 3d 172, 526 N.E.2d 467; People v. Strange (1984), 125 Ill. App. 3d 43, 465 N.E.2d 616.) There was some basis in the record for the charge. Defendant admitted striking the victim and then later having consenting sex with her, yet denied causing her the injuries. Her testimony, with corroboration from that of the police officers, evidence at the abandoned building, and the medical evidence, established the contrary. Furthermore, these arguments were made in rebuttal in response to defense counsel’s repeated accusations in closing argument that the victim lied when she testified. (See People v. Thomas (1988), 172 Ill. App. 3d 172, 526 N.E.2d 467.) Moreover, if the comments were improper, we believe that the trial court’s instruction to the jury to disregard any misstatement of the evidence makes reversal unwarranted. See People v. Washington (1984), 127 Ill. App. 3d 365, 468 N.E.2d 1285.

Defendant complains that the prosecutor unfairly attacked defense witnesses and accused defense counsel of fabricating a defense in the following comment:

“PROSECUTOR: You heard the solid, credible, believable testimony from [the victim] and the police officers who investigated. And then you heard about the story from all the defense witnesses. The ladies in the neighborhood. I don’t want to go through the testimony with you because you listened. You saw what they had to say. Needless to say, they are friends of the family. They want to help out [defendant’s family].”

The prosecutor may comment on the credibility of the witnesses. (People v. Thomas (1988), 172 Ill. App. 3d 172, 526 N.E.2d 467.) We find no error here.

We conclude that, taken as a whole, the entire record, including closing arguments, establishes that the prosecutorial comments at issue did not improperly prejudice defendant or require reversal. Moreover, proper jury instructions were given to disregard argument not based on the evidence and to consider only the evidence presented to the jury. See People v. Perez (1983), 113 Ill. App. 3d 143, 446 N.E.2d 1229.

Defendant finally contends that he was improperly convicted of aggravated battery since it was a lesser included offense of aggravated criminal sexual assault, and the State agrees. The conviction for aggravated battery must be vacated. (See People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1.) We find it unnecessary to remand for re-sentencing. There is no indication that the vacated conviction was considered in sentencing defendant for the aggravated criminal sexual assault conviction. (See People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1; People v Johnson (1987), 161 Ill. App. 3d 551, 515 N.E.2d 173; People v. Hines (1982), 105 Ill. App. 3d 35, 433 N.E.2d 1137.) The 23-year sentence falls within the maximum 30-year sentence permitted for Class X felonies and was proper in view of the particularly brutal nature of the attack, the serious injuries suffered by the victim, and the fact that defendant has been convicted of robbery twice. We find no abuse of discretion.

Accordingly, the judgment of conviction for aggravated criminal sexual assault is affirmed. The judgment of conviction for aggravated battery is vacated.

Affirmed in part, vacated in part.

QUINLAN and LaPORTA, JJ., concur.


author: JUSTICE PINCHAM

text:
    JACK H. JOHNSON, Plaintiff, v. R.R. DONNELLEY & SONS COMPANY et al., Defendants (R.R. Donnelley & Sons Company et al., Third-Party Plaintiffs-Appellants; R.J.R., Inc., Third-Party Defendant-Appellee).
    First District (5th Division)
    Nos. 1-86-2911, 1-86-3022, 1-86-2998 cons.
    Opinion filed June 23, 1989.
    Rehearing denied August 11,1989.
    Nicholas A. Riewer, of Brinton & Bollinger, of Chicago, for appellant Crown Corr Erection, Inc.
    David J. Loughnane, of Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers, of counsel), for appellee.
   JUSTICE PINCHAM

delivered the opinion of the court:

Jack H. Johnson, plaintiff, was injured when he fell from a scaffold on which he worked installing metal siding at defendant R.R. Donnelley’s (Donnelley’s) plant. Crown Corr Erection, Inc. (Crown Erection), contracted with Donnelley to install the siding and subcontracted with R.J.R., Inc., whereby R.J.R. was to provide the labor for the installation of the siding. To recover damages for his injuries, plaintiff Johnson filed a complaint against defendants Donnelley and Mid-American Engineers, Inc., in which he alleged a violation of the Illinois Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, pars. 60 through 69). Plaintiff Johnson also filed a strict products liability action (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 621) against Crown Erection for supplying the allegedly defective scaffold. Crown Erection filed a third-party complaint against R.J.R. under the Structural Work Act, products liability (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 621), and the Illinois Contribution Act (Ill. Rev. Stat. 1985, ch. 70, par. 301), which sought contribution from R.J.R. for its pro rata share of the fault which contributed to plaintiff Johnson’s injuries. The cause was tried before a jury, and at the close of all the evidence, the trial court granted R.J.R.’s motion for a directed verdict against Crown Erection. The jury then returned a verdict in favor of plaintiff Johnson and against the defendants, Donnelley, Mid-American Engineers, R.J.R. and Crown Erection. R.R. Donnelley, Mid-America, and Crown Erection all appeal, and the sole issue on appeal is whether the trial court erred when it directed a verdict in favor of R.J.R. For the following reasons, we reverse the trial court’s order directing a verdict in favor of R.J.R., and we remand the cause for a new trial on the contribution complaints of R.R. Donnelley, Mid-America and Crown Erection against R.J.R.

Prior to trial, the trial court granted Crown Erection’s motion in limine to bar admission of any evidence that Crown Erection and R.J.R. were not separate and distinct legal entities.

The trial evidence established the following. Crown Erection, Inc., contracted with Donnelley to furnish and install metal siding at the Donnelley plant in Mattoon, Illinois. Crown then entered into a subcontract with R.J.R., Inc., whereby R.J.R. was to provide the labor for the erection of the metal siding at the Donnelley plant. Crown also leased the necessary scaffolding to R.J.R. to perform the labor. At the time the subcontract and lease were entered into between R.J.R. and Crown, R.J.R. acknowledged that the scaffold equipment was received by R.J.R. in good condition for the purpose for which it was intended, i.e., the installation of siding at Donnelley’s Mattoon, Illinois, plant. Mel Lolkema, an employee of R.J.R., went to a union hall and hired plaintiff, Jack H. Johnson, to work on the installation of the siding at the Donnelley plant. Plaintiff Johnson was injured when he fell from a swing stage scaffold which was being used on the jobsite.

R.J.R.’s motion for a directed verdict against Crown Erection was premised on the grounds that although Mel Lolkema, who hired plaintiff Johnson, was an employee of R.J.R., nevertheless, R.J.R. contended, Mel Lolkema was not acting as R.J.R.’s agent, but, rather, Mel Lolkema was acting as Crown’s agent when he hired plaintiff Johnson, as well as on the jobsite when and where plaintiff’s injury occurred. The trial court granted R.J.R.’s motion for a directed verdict against Crown Erection. Crown’s post-trial motion to vacate the trial court’s order for a directed verdict in favor of R.J.R. contended that the question of whether an agency relationship existed between Mel Lolkema, R.J.R. or Crown Erection was a question of fact which was properly to be decided by the jury and was not to be decided by the trial court in the form of directing a verdict. Crown Erection further contended that there was overwhelming evidence that Mel Lolkema was an agent of R.J.R.

A verdict should not be directed unless all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based upon that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) This rule has been applied to cases brought under the Structural Work Act (Lyle v. Sester (1981), 103 Ill. App. 3d 208, 430 N.E.2d 699) and also to cases brought under strict liability theories (Crump v. Universal Safety Equipment Co. (1979), 79 Ill. App. 3d 202, 398 N.E.2d 188). The evidence in the case at bar, when viewed in its aspect most favorable to Crown Erection, does not so overwhelmingly favor R.J.R. that no contrary verdict based upon that evidence could ever stand. The evidence in the case at bar creates a substantial question of fact with respect to the agent status of Mel Lolkema, as well as to other acts or omissions of the other R.J.R. crew members which Crown Erection contends contributed to plaintiff’s injuries.

The trial court’s directed verdict was based upon its conclusion that Mel Lolkema was acting as the sole agent of Crown Erection. In so concluding, the trial court ignored the evidence that Mel Lolkema was acting as an agent for R.J.R. Lolkema was an employee of R.J.R. and was the installation foreman on the job. Lolkema was paid by R.J.R. and, if circumstances so arose, could have been terminated by R.J.R. Lolkema was the individual who hired the R.J.R. crew members from the union hall and executed the working agreement on behalf of R.J.R. between it and the union. Additionally, Lolkema’s fellow workers testified that Lolkema was the R.J.R. foreman.

The only evidence which tended to establish some relationship between Crown and Lolkema was the testimonies of Crown’s president, Joseph Reliar, and Crown’s vice-president, Richard Pellar. Both indicated that Lolkema was Crown’s representative on the jobsite. The testimonies of the Pellars, however, only created a question of fact regarding Lolkema’s status with Crown. They did not establish as a matter of law that Lolkema was an agent of Crown, or that Lolkema was not an agent of R.J.R., as the trial court concluded.

Additionally, the trial court, in basing its ruling on the agent status of Mel Lolkema, completely ignored the acts and or omissions of the R.J.R. crew members, including the plaintiff. The trial evidence established that when the component parts which comprised the scaffold arrived at the jobsite, the scaffold was erected by plaintiff Johnson and other R.J.R. employees. During the installation of the metal siding, Johnson and the other R.J.R. employees on several occasions moved the scaffold from one side of the building to another, sometimes completely disassembling and then reassembling it. Two days prior to the accident a fourth level was added to the scaffold by the R.J.R. crew. Dennis Brady, an employee of R.J.R., testified that he noticed that the addition of the fourth level caused the scaffold to feel “spongy” and he therefore attempted to determine the weight ratio between the counterweights and the load on the scaffold. He stated that there were too many variables in determining the weight ratio so he and the crew gave up trying to make the calculations. Brady further testified that because of this spongy feeling, he was concerned and made his concerns and observations about the scaffold and counterweights known to the R.J.R. crew. Brady and the R.J.R. crew were aware of the potentially dangerous and unsafe condition of the scaffold, about which they did nothing, just two days prior to the accident. R.J.R., as their employer, became vicariously aware of and responsible for their knowledge and inaction.

On the morning of the accident, January 18, 1984, the scaffold was moved to a new position which required the removal of some of the counterweights. The scaffold was then restacked by the R.J.R. crew, after which plaintiff Johnson was injured.

From the evidence, the jury could have concluded that the knowledge, acts and omissions of Brady, Lolkema and the other R.J.R. crew members contributed in whole or in part to plaintiff’s injuries and that Mel Lolkema was not acting as the sole agent of Crown but was also acting as an agent of R.J.R. The trial court therefore erred in granting R.J.R.’s motion for a directed verdict against Crown’s contribution claim. Accordingly, we reverse the trial court’s order for the directed verdict and we remand the cause for a new trial on Crown’s contribution complaint against R.J.R.

Reversed and remanded.

LORENZ and COCCIA, JJ., concur.