author: JUSTICE MURRAY

text:
    MONICA HOLDEN, Plaintiff-Appellant, v. NATIONAL BOULEVARD BANK OF CHICAGO, Defendant-Appellee.
    First District (5th Division)
    No. 1—91—2118
    Opinion filed June 12, 1992.

      Glenn Seiden and David T. Rothal, both of Glenn Seiden & Associates, of Chicago, for appellant.
    Richard J. Prendergast, Ltd., of Chicago (Richard J. Prendergast, James Prendergast, and Jane F. Anderson, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff, Monica Holden (Holden), appeals from an order of the trial court denying her request for a mandatory injunction attempting to restrain the National Boulevard Bank of Chicago (Boulevard). Holden sought to enjoin the Boulevard from seizing certain assets of her trust.

In 1984 Holden became socially acquainted with Parviz Zargarpoor (Zargarpoor). Zargarpoor was an architect and president of Zargarpoor & Associates, Inc. (Associates). In the fall of 1984 Holden agreed to loan Zargarpoor $25,000. In January 1985 Zargarpoor approached Boulevard requesting a loan secured by his personal residence. Boulevard refused to make a loan secured by Zargarpoor’s personal assets. When Boulevard refused to make a loan secured by Zargarpoor’s personal assets, Holden offered to pledge a portion of her trust assets to secure Zargarpoor’s loan. Consequently, Boulevard agreed to loan Zargarpoor $150,000. The loan agreement provided for quarterly interest payments with the principal balance due on January 27, 1986.

On January 24, 1985, Holden executed a letter agreement assigning $150,000 of her trust assets to Boulevard for the purpose of securing Zargarpoor’s loan.

Holden’s letter agreement provides in pertinent part:

“Relative to my Agency Account, known on your Trust Department records as No. 600644100 in addition to any and all other pledges to you. I hereby assign, transfer and pledge to you.
ALL ASSETS UP TO $150,000.00 TO SECURE LOAN OF PARVIZ ZARGARPOOR & ASSOCIATES, INC.
This assignment, transfer and pledge has been made as collateral security to secure any and all notes and indebtedness and other liabilities of the undersigned to your Bank due or to become due or that may heretofore have been or hereafter be contracted.”

On January 25, 1985, Holden executed an hypothecation agreement and a pledge agreement pledging $150,000 of her trust assets to secure Zargarpoor’s loan. The hypothecation agreement provides in relevant part:

“1. The interest created by this Agreement secures the payment of all debts, obligations and liabilities of Debtor to Secured party incurred either contemporaneously herewith or hereafter, (collectively ‘Liabilities’).
2. Undersigned hereby assigns, transfers and pledges with Secured Party *** Assets in Custodial Account #600644100 up to $150,000 plus interest to secure loan of Parviz Zargarpoor & Assoc.
6. Secured Party may from time to time, without notice to Undersigned, and without impairing or affecting the interest created hereunder *** (c) modify, extend or renew for any period any of the Liabilities or (d) resort to the Collateral for payment of the Liabilities whether or not Secured party shall have resorted to other collateral or proceeded against any other party (including Debtor) primarily or secondarily liable on the Liabilities.”

The pledge agreement provides in relevant part:

“WHEREAS, this Agreement is made in consideration of any loan or extension of credit contemporaneously or hereafter made to Pledgor by Secured Party.
1. The interest created by this Agreement secures the payment of all debts, obligations and liabilities *** incurred either contemporaneously herewith or hereafter ***.” On January 25, 1985, Zargarpoor directed Boulevard to disperse a portion of the loan proceeds in the amount of $25,368.17 to satisfy a debt to Holden. Zargarpoor also requested that a cashier’s check for $72,000 be issued to the First National Bank of Lincolnshire, a cashier’s check for $12,000 be issued to First National Bank of Lincolnshire, and $10,631.83 be deposited to the account of Associates. The balance of $30,000 was to remain as reserve until further notice.

On January 27, 1986, Zargarpoor's loan matured and the principal became due and payable. Zargarpoor was unable to pay the principal balance and requested an extension. On January 27, 1986, Boulevard agreed to extend Zargarpoor’s loan until April 28, 1986.

On April 28, 1986, Zargarpoor requested another extension. Boulevard agreed to extend Zargarpoor's loan until July 28, 1986. When the loan came due on July 28, 1986, Zargarpoor again requested an extension. Boulevard again agreed to renew Zargarpoor’s loan, but required Zargarpoor to begin reducing the principal balance of the loan as follows: $5,000 principal reduction due on October 28, 1986; $10,000 principal reduction due on January 28, 1987; $15,000 principal reduction due on April 28, 1987; $30,000 principal reduction due on July 28, 1987; and $90,000 balloon balance due on October 28, 1987.

Zargarpoor paid the $5,000 principal reduction payment due on October 28, 1986, but then failed to make the $10,000 principal reduction. By letter dated April 23, 1987, Boulevard demanded that Zargarpoor pay the then outstanding balance of the loan in the amount of $145,000 principal plus interest in the amount of $4,058.99. Boulevard sent a copy of the April 23, 1987, letter to Holden.

When Zargarpoor was unable to pay the outstanding balance of the loan, Boulevard agreed to renew Zargarpoor’s loan. The April 26, 1987, agreement required Zargarpoor to reduce the principal balance by making six monthly installment payments of $1,726.19 with a final balloon payment of $134,642.86 due on June 1, 1988. Zargarpoor also signed a personal guaranty. At the same time, Boulevard asked Holden to execute an additional guaranty. Holden refused to execute an additional guaranty because Boulevard failed to obtain a third mortgage on Zargarpoor’s home as additional security. Zargarpoor complied with the principal reduction terms of the April 26, 1987, extension but was unable to make the June balloon payment. Boulevard agreed to extend the due date of the balloon payment until August 26,1989.

In July 1989 Zargarpoor’s loan was once again in arrears. By letter dated August 28, 1989, Boulevard demanded payment in full in the amount of $140,787.01 with a per diem of $44.95 for each day after August 26, 1989. A copy of the August 28 letter was sent to Holden. In late 1989 Zargarpoor filed for bankruptcy.

After defendant informed plaintiff that it intended to debit plaintiff’s account in the amount of $145,283.30, and according to the trial court decision, actually debited her account, Holden filed the instant complaint to enjoin the withdrawal of funds. On January 24, 1990, the parties agreed to establish an account, pending the outcome of this suit.

On June 6, 1991, the trial court issued an order denying plaintiff’s request for an injunction. The trial court’s decision indicated the following. The 1985 note was extended three times and by April 26, 1987, another note was signed by Zargarpoor to evidence the same $150,000 debt. “It provided for a different payment schedule.” Plaintiff first argued that the April 26, 1987, loan agreement was a “new” agreement rather than a “renewal” and contained material differences from the original promissory note of January 25, 1985, and therefore the hypothecation agreement was discharged. Second, plaintiff argued consent was not obtained before material changes were made in the liabilities secured, and thus, the collateral was by law released.

The trial court held that pursuant to the January 1985 hypothecation agreement Holden agreed to secure loans up to $150,000 made contemporaneously with or after the agreement was signed, Boulevard was not seeking more than Holden had agreed to secure, and Boulevard gave Zargarpoor no new money after the January 1985 note. The trial court also found that Holden agreed that Boulevard need not notify her if it modified, extended or renewed the liabilities that she secured, and thus plaintiff was bound by the April 1987 order. Boulevard did not obtain Holden’s consent because pursuant to the agreement it was not required to notify her. Finally, the trial court noted that Holden had agreed Boulevard could resort to her collateral whether or not it resorted to other collateral. On that same day the trial court entered an order directing the funds in the segregated account to be turned over to Boulevard.

Holden appeals the two orders of June 6, 1991. Holden argues on appeal that the trial court took the language of the hypothecation agreement between the parties out of context. Holden argues that Boulevard, by renewing the agreement with time provisions and a subject matter outside the original agreement, released her and breached its agreement with her.

We disagree with Holden’s argument and affirm the decision of the trial court.

At the request of Zargarpoor, Boulevard made a number of extensions on the loan, including one on April 28, 1986. It is these extensions that Holden claims relieve her from liability based on their hypothecation agreement. Holden claims on appeal that by renewing the agreement with time provisions and a subject matter outside the parties’ original agreement, Boulevard breached its agreement with her. She also claims on appeal that she never agreed to allow perpetual modifications or renewals of their January 1985 agreement and did not intend to modify the agreement to such a degree that the new agreement would not even resemble the original.

Plaintiff maintains that the January 1985 note plainly states that it was due in January 1986 so it would be unreasonable to allow renewals and modifications after that time. She argues that in January 1986, under the terms of the agreements with Zargarpoor and plaintiff, defendant had a choice between using plaintiff’s collateral towards any payments which were past due or returning the collateral to plaintiff. Plaintiff did not present this argument to the trial court and has thus waived the issue on review. Nevertheless, we find that pursuant to the terms of the agreements of the parties this argument lacks merit.

Zargarpoor’s 1985 note provides in relevant part:

“The undersigned authorizes the holder hereof, without giving notice and without affecting the liability of the undersigned to *** (c) extend the time of payment of this Note in whole or in part * * *.
No delay on the part of any Holder exercising any right under this Note, any security agreement, guaranty or other undertaking securing this Note shall operate as a waiver of such right or any other right under this Note ***.”

In addition, all of the security agreements executed by Holden provided that Boulevard may modify, extend or renew Zargarpoor’s loan without affecting its right against plaintiff. Zargarpoor’s 1985 note did not limit Boulevard’s power to extend Zargarpoor’s loan or to extend the security agreements executed by Holden.

Alternatively, plaintiff argues that even if defendant was not in breach of its agreement with plaintiff in January of 1986, it breached the agreement when: first, defendant formed a new agreement with Zargarpoor in April 1987 which plaintiff refused to guaranty; and second, after informing plaintiff that it intended to debit her account, Boulevard still maintained its right to collect upon the collateral, even after plaintiff expressed her disapproval of such actions by filing against defendant.

Holden contends that the 1987 extension constitutes a new debt which she never agreed to secure. Holden points to the following facts. The January 1985 agreement was for $150,000 and Zargarpoor signed the instrument in his corporate capacity whereas the April 1987 agreement was for $145,000 and Zargarpoor signed the note in both a corporate and a personal capacity. In addition, the payment schedules for the two notes were different.

We agree with the trial court’s analysis in rejecting this argument. Holden agreed to secure loans made contemporaneously with or after the note was signed. Boulevard did not loan any new funds to Zargarpoor after the January 1985 note. Boulevard was not seeking more than Holden had agreed to secure. Moreover, Holden agreed that Boulevard need not notify her if it modified, extended, or renewed the liabilities she secured. The hypothecation agreement provides in relevant part:

“Secured Party may from time to time, without notice to undersigned, and without impairing or affecting the interest created hereunder *** (c) modify, extend or renew for any period any of the Liabilites or (d) resort to the Collateral for payment of the Liabilities whether or not Secured Party shall have restored to other collateral or proceeded against any other party (including Debtor) primarily or secondarily liable on the Liabilites.”

The April 26, 1987, note provided new payment terms for the original debt. Pursuant to the terms of her agreement Boulevard was not required to notify Holden of the new payment terms.

Holden cites to Illinois Law and Practice, a restatement excerpt and a law review article to support her position that she was automatically released when the 1985 note was modified. Plaintiff’s authorities support the position that a guarantor is ordinarily released if the underlying debt is modified without the guarantor’s consent. (See Restatement of the Law of Security, §36 (1941); 30 Ill. L. & Prac. Quo Warranto §25 (1957); Robbins, The Pledge as an Illinois Security Device: Part II, 31 Chi.-Kent L. Rev. 201, 219-20 (1953).) However, pursuant to the terms of the hypothecation agreement, Holden consented to the modification, and as a result, Holden’s aforecited authorities are not relevant to the present case.

For the reasons set forth above, we find that the April 26, 1987, note did not create an impermissible new debt. The trial court also found that even if the April 26, 1987, note is “new,” Holden agreed that any liabilities incurred after the hypothecation agreement were also secured.

The 1985 letter agreement provides that Holden shall be liable for all existing and future loans. It states in relevant part:

“This assignment, transfer and pledge has been made as collateral security to secure any and all notes and indebtedness and other liabilities of the undersigned to your Bank due or to become due or that may heretofore have been or hereafter be contracted.”

Both the hypothecation agreement and the pledge agreement provide that “the interest created by this Agreement secures the payment of all debts, obligations and liabilities of [debtor or pledgor] to Secured Party incurred either contemporaneously herewith or hereafter.” We agree with the trial court that even if the April 1987 note could be deemed a new note, under the terms of her agreements, Holden remains liable.

“A contract’s meaning must be determined from the words or language used, and a court cannot place a construction on the contract which is contrary to the plain and obvious meaning of the language.” (Johnstowne Centre Partnership v. Chin (1983), 99 Ill. 2d 284, 287, 458 N.E.2d 480.) Where the contract is unequivocal it must be carried out in accordance with its language. (United Airlines, Inc. v. City of Chicago (1987), 116 Ill. 2d 311, 507 N.E.2d 858.) A contract of guaranty is generally to be construed by the rules of construction applicable to other contracts. State Bank of East Moline v. Cirivello (1978), 74 Ill. 2d 426, 386 N.E.2d 43.

Holden argues that Boulevard’s actions in renewal of the loan is contrary to her intent. Intention of the parties is determined by the parties’ written agreement. It is only where there is an ambiguity that the court looks into the factual intention of the parties. Whether or not an ambiguity exists is a matter of law for the court to determine. (National Tea Co. v. American National Bank & Trust Co. (1981), 100 Ill. App. 3d 1046, 1049, 427 N.E.2d 806.) A provision in a contract is not rendered ambiguous simply because parties do not agree on its meaning. (Johnstowne Centre Partnership v. Chin (1983), 99 Ill. 2d 284, 287, 458 N.E.2d 480.) Where the question before the court is one involving contract construction, a reviewing court may ascertain the meaning of contract provisions from the instrument itself, it having become a matter of law, not of fact. Newcastle Properties, Inc. v. Shalowitz (1991), 221 Ill. App. 3d 716, 582 N.E.2d 1165.

As the court stated in Du Quoin State Bank v. Daulby (1983), 115 Ill. App. 3d 183,185-86, 450 N.E.2d 347, 348-49:

“The rules of construction applicable to contracts generally also apply to contracts of guaranty [citation] and if such a contract is unambiguous it must be enforced as written. [Citations.] These principles apply even in cases *** where the guaranty agreement contains broad statements of guarantor liability. [Citation.]”

A guarantor is not liable for anything which she did not agree to. A guarantor is given the benefit of any doubt which may arise from the language of the contract; her liability may not be varied or extended beyond its precise terms by construction or implication; and she is only bound to the extent and in the matter and under the circumstances pointed out in her obligation. Exchange National Bank v. Bergman (1987), 153 Ill. App. 3d 470, 505 N.E.2d 1236.

The terms of Holden’s agreement are clear and unequivocal and thus must be carried out in accordance with its language. Had Holden wanted to limit the terms of the hypothecation agreement to prohibit renewal or to prohibit changes in the terms of Boulevard’s loan with Zargarpoor, she could have done so by inserting those terms in the hypothecation agreement or by refusing to sign the agreement as written. The only limitation made in the hypothecation agreement is that Holden’s liability is limited to $150,000 of loans to Zargarpoor. Holden entered into the agreement; neither the trial court nor this court may alter the terms of that agreement. The agreement must be enforced as written.

Accordingly, for all the reasons set forth above, we affirm the decision of the trial court.

Judgment affirmed.

LORENZ and GORDON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    DONALD LoBIANCO et al., Plaintiffs-Appellants, v. ESSAC CLARK et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—90—3453
    Opinion filed June 15, 1992.

      Muscarello, Crisanti & Young, P.C., of Elgin (Thomas P. Young, of counsel), for appellants.
    Brittain & Ketcham, P.C., of Elgin (Leo M. Flanagan, Jr., of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs, Donald and Opal LoBianco, owners of lots numbers 10 and 11 in the subdivision of Shady Oaks, Elgin, Cook County, Illinois, brought action against defendants, owners and other, interested parties in lots 1 through 9 of the subdivision, to remove certain alleged restrictions from the development of their lots. The parties stipulated to the facts, and after cross-motions for summary judgment, the trial court denied plaintiffs’ motion and granted defendants’ motion. On appeal, plaintiffs contend that the trial court erred in finding that the facts as stipulated by the parties indicated a general plan of development regarding the use of the land within the Shady Oaks subdivision. For the following reasons, we affirm.

The following are the stipulated facts. There are 11 lots located within the subdivision of Shady Oaks, all originally owned by Harold E. and Anna M. Dab and Lillian R. and John H. Rauschert, who are all now deceased. The original plat of subdivision for Shady Oaks contained no restrictions as to building.

The original deed to lot 1 contained a restriction allowing only the construction of a residential building with a minimum square footage of 1,200 square feet and a further limitation that the plans and specifications had to be approved by the grantors, Harold and Anna Dab, or their legal representatives. Subsequent deeds to lot 1 did not contain this restriction.

The original deeds to lots 2 and 3 contained the restriction that the buildings and plans had to be approved by Harold Dab and John Rauschert, but did not limit the type of structure or provide that the structure must be residential in nature.

Lot 4 contains the restriction “subject to building lines, covenants, conditions and restrictions of record.” Lot 5 never contained any restrictions. Lots 4 and 5 were the developers’ own lots, and they built single-family homes upon the lots. The original deed to lot 6 contained the restriction “no private residence less than 1,200 square feet.” Lot 7 never contained any restrictions dealing with the use of the property.

The original deed to lot 8 contained the restriction that any structure constructed on the premises must conform to other dwelling houses in the subdivision unless the plans and specifications were approved by one of the grantors or their legal representatives. The original deed to lot 9 contained a restriction that no private residence less than 1,200 square feet could be erected on the premises.

On May 29, 1973, the plaintiffs purchased lots 10 and 11 in the subdivision of Shady Oaks, with no restrictions recorded in the deeds. However, the deeds to lots 10 and 11 contain the following restriction in the chain of title:

“No structure of any kind shall be erected or permitted upon said premises or any part thereof except if it is of new construction and in general conformity with the present dwelling houses in this subdivision, with not less than 1200 square feet of living area, and unless the plans and specifications for the same shall first have been submitted to and approved by at least one of the grantors or his legal representatives.”

To date, lots 1 through 9 are improved with single-family residences and occupied as such.

In examining the evidence, the court determined that a general plan of development existed for the subdivision, and that the covenants to lots 10 and 11 ran with the land. Plaintiffs’ timely appeal followed.

Plaintiffs contend that the trial court erred in finding a general plan of development regarding the use of the land within the Shady Oaks subdivision. Plaintiffs argue that because the original grantors failed to record the restrictions with the original plat of subdivision and failed to apply uniform restrictions to all of the lots a general plan is not established.

The law is well settled that a restriction or covenant contained in a deed relating to the manner of use of land may be enforced against the original grantee’s successors where it can be shown, expressly or by fair implication from the circumstances, that the restriction or covenant is part of a general scheme or plan for the mutual benefit of the owners of all lots in a particular tract. (Wallace v. Hoffman (1949), 336 Ill. App. 545, 84 N.E.2d 654.) In determining whether a general plan or scheme exists for a subdivision, courts consider the following factors: (1) whether the restrictions are included in all deeds to the subdivision; (2) whether the restrictions have been previously violated; (3) whether the burdens imposed are generally equal and for the mutual benefit and advantage of all lot owners; and (4) whether notice of the restrictions is given in the recorded plat of subdivision. (Cornell v. County of Du Page (1978), 58 Ill. App. 3d 230, 374 N.E.2d 1; Wallace, 336 Ill. App. at 552-53.) The existence of a general plan does not depend upon any particular one of these circumstances, but upon the weighing of all pertinent circumstances. (Wallace, 336 Ill. App. at 553.) A general plan may be found even where there are complete omissions of restrictions from some deeds. (Pasulka v. Koob (1988), 170 Ill. App. 3d 191, 524 N.E.2d 1227.) The absence of a restriction from a deed succeeding the grantor’s deed to the same lot is of no consequence; where the deeds are recorded and the restriction appeared in the chain of title, subsequent notice is given to purchasers of the existence and binding force of the restriction. Housing Authority v. Church of God (1948), 401 Ill. 100, 81 N.E.2d 500; Dolan v. Brown (1930), 338 Ill. 412, 170 N.E. 425.

The trial court found that the evidence indicated the following:

(1) That restrictions were included in a substantial number of the deeds; (2) that none of the restrictions were previously violated; (3) that the restrictions are not identical, but that the purpose was to have dwelling houses there; and (4) that the burdens imposed are generally equal and for the mutual benefit of all the other lot owners.

Summary judgment is proper when the parties have stipulated to the facts and the moving party is entitled to judgment as a matter of law. (Giardino v. American Family Insurance (1987), 164 Ill. App. 3d 389, 517 N.E.2d 1187.) We agree with the trial court that from the facts, a general plan of subdivision is established.

In the present case, the subdivision consists of 11 lots. All but three of the lots contain restrictions, and two of the three lots that do not contain restrictions were the homes of the developers of the subdivision. Restrictions appear in the chain of title to both of plaintiffs’ lots, 10 and 11, even though the restrictions do not appear in plaintiffs’ deeds. All nine lots owned by the defendants are developed as single-family homes and occupied as such. The facts do not show that the restrictions have been waived or abandoned through violations. See Wallace, 336 Ill. App. at 552 (buildings on 5 out of 12 lots were 100% in violation of building line restriction, thus general plan could not be enforced).

Plaintiffs further contend that the change in character of the neighborhood renders the restrictions unenforceable. Plaintiffs argue that their lots border on Illinois Route 58, that the property across Route 58 from the subdivision is commercial, and that property to the west of plaintiffs’ lots is zoned commercial.

It is well settled that restrictive covenants will not be enforced where there has been such a change in the character and environment of the property that either the objective of the restrictions cannot be accomplished by their enforcement or if by such change it would be unreasonable or oppressive to enforce them. Exchange National Bank v. City of Des Plaines (1970), 127 Ill. App. 2d 122, 262 N.E.2d 48.

Plaintiffs’ contention is without merit. The trial court found that a common plan existed “because of the character of the area.” The evidence indicates that none of the residential restrictions have been abandoned in lieu of commercial purposes. Further, the evidence does not show that any of the commercial property in the vicinity of the subdivision is subject to the same restrictions as the property within the subdivision. See Ewertsen v. Gerstenberg (1900), 186 Ill. 344, 353, 57 N.E. 1051.

In light of the above, plaintiffs have failed to show that the trial court erred in finding a common plan in the development of the Shady Oaks subdivision.

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

Affirmed.

O’CONNOR and MANNING, JJ., concur.


author: PRESIDING JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. J.D. YOUNG, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—1498
    Opinion filed June 16, 1992,

      nunc pro tunc June 2, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Donald S. Honchell and John T. Kennedy, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Susan R. Schierl, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, J.D. Young, appeals his jury conviction of possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56½, par. 1402), arguing that (1) the court’s coercion of a defense witness deprived him of due process; (2) the defense witness was not entitled to invoke his fifth amendment privilege; and (3) defendant’s cross-examination of witnesses was restricted improperly.

Defendant and his accomplice, Gene Raper, were charged with possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(2).) Prior to trial, Raper pled guilty and was sentenced to a term of probation. Defendant’s first trial ended in a mistrial when the jury was unable to reach a verdict.

At the second jury trial, Chicago police officers William Taylor, Charles Toussas, and Phillip Bryant testified that on January 15, 1988, at about 8 p.m., they proceeded to a building at 1518 South Keeler. Bryant walked to the front door, knocked, and a man later identified as Raper answered; defendant was standing behind him. Bryant asked for a $20 bag of “coke” and handed Raper a $20 bill with a prerecorded serial number. Raper turned around and gave the bill to defendant, who put it in his pocket. When Raper turned back, he handed Bryant four “pyramid packs.” Bryant returned to his fellow officers and examined the packets, which contained white powder.

All three officers returned to the front door of the building. They heard footsteps moving toward the front door as other officers entered the building through the rear entrance. Toussas hit the door with his shoulder and forced it open. Defendant, Raper, and a woman were inside.

Taylor searched Raper and recovered a fully loaded automatic pistol and eight pyramid packs containing white powder. Toussas searched defendant and found 48 pyramid packs of white powder and $584 in cash, including the $20 bill which Bryant had used to make the controlled purchase. A search of the female yielded nothing, and she was released. The parties stipulated that the white powder in the 48 packets tested positive for cocaine and weighed 4.03 grams. The four pyramid packs purchased by Bryant, however, did not contain a controlled substance.

The defense called Raper to the stand, but he invoked the fifth amendment and did not testify. At the first trial, Raper had testified that neither he nor defendant had possessed cocaine on the date in question.

Defendant testified that he was at 1518 South Keeler drinking and playing cards on January 15, 1988. He admitted that he had been carrying $564 in cash, but denied that he had any cocaine. He did not take a $20 bill from Raper and saw no drugs on the premises.

The jury found defendant guilty of possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56½, par. 1402(b)), and he was sentenced to a two-year period of probation.

I

At issue is whether the circuit court coerced Raper not to testify and thereby deprived defendant of due process.

During the first trial, Raper testified that neither he nor defendant had any drugs on the date in question. He admitted that previously he had pled guilty to possession of a controlled substance with intent to deliver before the same judge, and then was asked the following question:

“[DEFENSE COUNSEL:] And you told the judge that you were guilty?
A. No, sir.”

The court immediately called for a sidebar and expressed its concern for accepting an involuntary plea from an innocent man. The judge remarked:

“They won’t lie about what I did to them and get away, so again, I will move hell and high water to have that gone over, and I would even direct the State to indict him, you know, if he tells and if he says he did something that causes me to look like I am lying.
*** I have a fellow who has been in jail now for about a year on contempt, you understand. *** I don’t hesitate. I will put somebody underneath the jail for lying on me.”

When direct examination resumed, Raper said that he pled guilty because the case had been pending for over two years and he “was about to have a nervous breakdown.” On cross-examination, Raper said he voluntarily entered his guilty plea.

Prior to the second trial, the judge indicated that he intended to give Raper an opportunity to withdraw his guilty plea. Defense counsel argued that the court was taking away his client’s defense by threatening Raper with a possible armed violence conviction, as the State might reinstitute such charge. Defendant’s subsequent motion for substitution of judge was denied.

At trial, but outside the presence of the jury, Raper appeared before the court with his own attorney and was asked if he wished to withdraw his earlier guilty plea. He declined. Raper was called by the defense to testify, but he relied upon the fifth amendment and remained mute.

A fundamental element of due process is the right of an accused to present witnesses in his own defense. (Washington v. Texas (1967), 388 U.S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920.) That fundamental right is violated if the State or the court exerts improper influence on defense witnesses causing them not to testify. (Webb v. Texas (1972), 409 U.S. 95, 98, 34 L. Ed. 2d 330, 333, 93 S. Ct. 351, 353 (per curiam) (Webb); People v. Cross (1981), 101 Ill. App. 3d 435, 437, 428 N.E.2d 588 (Cross); see also Annot., 88 A.L.R.4th 388, 438 (1991).

Defendant relies upon Webb, in which the trial court, on its own initiative, directly addressed the sole defense witness, who had a prior criminal record and was then serving a prison sentence, and threatened him with prosecution for perjury if he lied. Following the judge’s monition, characterized by the supreme court as “lengthy and intimidating,” the witness refused to testify. It was held that defendant’s right to due process had been violated and his conviction was reversed, as “the unnecessarily strong terms used by the judge could well have exerted such duress on the witness’ mind as to preclude him from making a free and voluntary choice whether or not to testify.” Webb, 409 U.S. at 98, 34 L. Ed. 2d at 333, 93 S. Ct. at 353.

Unlike Webb, this case does not involve the trial court’s gratuitous admonishment of a defense witness who is on the stand. In fact, it appears from the record that Raper was not present when the allegedly coercive statements were made during a sidebar discussion. Raper was addressed directly by the court only when he was given the option of withdrawing his guilty plea. It is within the sound discretion of the circuit court to determine whether a plea of guilty, once entered, may be withdrawn to correct manifest injustice. (People v. Smithey (1983), 120 Ill. App. 3d 26, 31, 458 N.E.2d 87.) The court did not abuse its discretion in that regard.

In similar situations, this court has found no violation of due process. In People v. Davis (1980), 88 Ill. App. 3d 265, 410 N.E.2d 533, the court declared two of the State’s witnesses to be hostile and warned them that if their answers were substantially different on a material point from their prior sworn testimony, they could be charged with perjury and contempt of court. Defendant objected to the caveat, made outside the presence of the jury, arguing that it intimidated the witnesses to testify exactly as they had during the prior trial of a codefendant. The appellate court distinguished Webb and held that the admonition was informative rather than threatening and did not intimidate the witnesses. Davis, 88 Ill. App. 3d at 270.

In Cross, defendant’s witness was arrested when the victim recognized him in the courtroom as defendant’s accomplice. The court advised the witness of his Miranda rights and appointed counsel to represent him. When called to testify by defendant, the witness asserted his fifth amendment privilege and refused to answer questions. It was held that neither the prosecution nor the court exerted improper influence to prevent the witness from testifying, and defendant was not denied due process. Cross, 101 Ill. App. 3d at 437-38.

Here, the circuit court did not exert such duress over Raper as to deter him from testifying. The court did not threaten Raper with perjury charges, and it was not suggested that he withhold testimony. On the advice of his own counsel, Raper asserted the fifth amendment, and a criminal defendant cannot force a witness to testify over such a claim. (Cross, 101 Ill. App. 3d at 438.) Raper’s refusal to testify on behalf of defendant was not the product of coercion by the circuit court.

II

Defendant contends that Raper was not entitled to assert his fifth amendment privilege.

A witness in a criminal case may, under the aegis of the fifth amendment, refuse to answer questions which might incriminate him, but only when he has reasonable cause to believe he might subject himself to prosecution if he answers. (People v. Redd (1990), 135 Ill. 2d 252, 304, 553 N.E.2d 316.) Neither an unreasonable fear of self-incrimination nor a mere reluctance to testify is a ground for claiming the privilege, and the circuit court determines if, under the particular facts, there is a real danger of incrimination. (Redd, 135 Ill. 2d at 304.) A witness may be denied the privilege only when it is perfectly clear, considering all the circumstances, that the answers sought cannot possibly have a tendency to incriminate. People v. Cooper (1990), 202 Ill. App. 3d 336, 342, 559 N.E.2d 942.

Defendant asserts that Raper did not have reasonable grounds to fear self-incrimination. Raper, however, might have committed perjury had he testified further. (See Ill. Rev. Stat. 1987, ch. 38, par. 32 — 2(a).) In pleading guilty to possession of a controlled substance with intent to deliver, Raper admitted all the elements of that offense and every material fact alleged in the indictment. (See People v. Caplinger (1987), 162 Ill. App. 3d 74, 79-80, 514 N.E.2d 1221.) At the first trial, however, he denied that he had possessed cocaine. When given an opportunity to withdraw his plea, Raper declined. No error was committed in allowing Raper to assert his fifth amendment privilege, as he had reasonable cause to believe that he might incriminate himself for perjury.

III

Lastly, defendant claims that the court restricted his cross-examination of the State’s witnesses in violation of the sixth amendment.

In criminal proceedings, the scope of cross-examination is determined by the circuit court, whose decision will not be overturned absent an abuse of discretion resulting in manifest prejudice to defendant. (People v. Hunter (1984), 124 Ill. App. 3d 516, 538, 464 N.E.2d 659.) If the record shows that the jury had been made aware of adequate factors concerning relevant areas of impeachment of a witness, no constitutional issue arises merely because defendant had been prohibited on cross-examination from pursuing other areas of inquiry. People v. Maldonado (1989), 193 Ill. App. 3d 1062, 1069, 550 N.E.2d 1011.

Defendant challenges four instances where his cross-examination of the police officers allegedly was restricted, none of which constitutes an abuse of discretion. The jury was provided with sufficient information from which to determine the credibility of each officer. Defense counsel was given wide latitude during cross-examination, and his inquiry into irrelevant and collateral matters was restricted properly. We find sufficient cross-examination to satisfy the constitutional guarantee.

Further, even if the court erred in restricting defendant’s cross-examination of the officers, reversal is not warranted unless there remains a reasonable doubt whether defendant has been prejudiced thereby or the outcome of the trial would have been different had the error not been made. (People v. Sprawls (1990), 205 Ill. App. 3d 337, 342, 562 N.E.2d 1065.) Here, there is no such reasonable doubt.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

SCARIANO and DiVITO, JJ., concur.

      Defendant asserts in his brief that the judge violated the statute prohibiting intimidation of witnesses. That offense, however, requires the direct or indirect communication of knowingly false information or threat of injury, neither of which is present here. See Ill. Rev. Stat. 1987, ch. 38, par. 32 — 4(b).


author: PRESIDING JUSTICE GREIMAN

text:
    TIMOTHY SCHELLENBERG, a Minor, by his Father and Next Friend, Robert Schellenberg, Plaintiff-Appellant, v. WINNETKA PARK DISTRICT, Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—1081
    Opinion filed June 17, 1992.

      Cooney & Conway, of Chicago (Robert J. Cooney, Jr., of counsel), for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, James O. Nolan, and Edward M. Kay, of counsel), for appellee.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court;

Plaintiff, 15-year-old Timothy Schellenberg, appeals from the circuit court’s entry of summary judgment in favor of defendant, Winnetka Park District, in a negligence action.

Plaintiff’s sole theory on appeal is that summary judgment was not proper because genuine issues of material fact exist as to whether or not defendant’s duty to exercise reasonable care encompassed a duty to warn minors of the danger of shallow water diving under the circumstances of this case.

On appeal, plaintiff asserts that summary judgment was not proper because he did not appreciate the risk involved in diving, defendant had a duty to warn minors of the danger of shallow water diving, and the issue as to his appreciation of the danger was a question of fact to be determined at trial.

We agree with plaintiff because of plaintiff’s minority and reverse the order of the circuit court granting summary judgment for defendant.

On August 3, 1983, at the Tower Road Beach in Winnetka, 15-year-old plaintiff dove into the water from a standing position in the water, hit his forehead on the sandy bottom of the lake and suffered a spinal cord injury which rendered him a quadriplegic. Defendant owned and operated Tower Road Beach.

In his deposition, which was attached to the motion for summary judgment, plaintiff testified that he entered into the water from the shoreline by running three to four steps, putting his arms in front of his head, and performing a surface dive, i.e., staying bn or near the surface of the water upon entry. Plaintiff believed there was no risk in making a surface dive in shallow water but understood that if he went under the water instead of on the surface, he could get injured. Plaintiff did not know what caused him to go under the water. Prior to the day of his accident, plaintiff had been to the Tower Road Beach about five times in his entire life and he normally swam at the Glencoe beach. Plaintiff described himself as an average swimmer and diver, stating “I wasn’t bad, I wasn’t good.”

Plaintiff first learned to swim at age five or six at a YMCA. In sixth grade, plaintiff attended a swimming program at a day camp and received some diving instructions. Plaintiff sporadically participated in swimming and diving activities during junior high school and his first two years in high school. Plaintiff recalled seeing a 60 Minutes show about people in Florida getting injured when they dove off a diving board into pools with shallow water but believed that bouncing on a diving board differed from just diving into water. Plaintiff felt there was no risk and no danger at all in making the surface dive into shallow water.

Plaintiff’s expert, Dr. Alan Caskey, testified in his deposition that defendant was negligent in not prohibiting and preventing the run- and-plunge dive. The run-and-plunge activity, according to Dr. Caskey, is not a safe practice for the general public because they do not know how little force it takes to incur a spinal injury. Dr. Caskey opined that defendant should have been aware of the frequency of serious injury from the run-and-plunge dive into a natural body of water, posted signs banning this dive, and trained its lifeguards to stop persons from engaging in this activity.

Defendant’s director of parks and recreation, Daniel Newport, testified that there were not any “no diving” signs at Tower Road Beach because there was nothing to dive off, such as a pier or a side of a pool. Mr. Newport described plaintiff’s maneuver into the water as body surfing which was, and continues to be, a very common and permitted practice at the beach. Mr. Newport was not aware of any danger associated with a body surf entry into shallow water.

During the time of plaintiff’s accident, defendant employed Richard Kehoe as its lakefront manager who supervised the personnel including the lifeguards. Mr. Kehoe’s deposition testimony essentially mirrored the testimony given by Mr. Newport. Mr. Kehoe also testified that there were no rules about running into the water and that the lifeguards were not instructed to prevent or dissuade beach patrons from making body surf entries into the water. Mr. Kehoe described the Tower Road Beach as the most crowded beach and primarily a “young kids’ beach.”

The circuit court granted defendant’s motion for summary judgment, relying on Dowen v. Hall (1989), 191 Ill. App. 3d 903, 548 N.E.2d 346, which affirmed the entry of summary judgment in favor of the defendant landowners where an adult plaintiff sustained a paralyzing spinal cord injury after attempting a flat dive off a pier into the shallow water of a natural lake. The Dowen court concluded that, as a matter of law, the risk of paralysis from executing a flat dive off the pier into the uncertain depths of the lake was open and obvious and thus defendant landowners owed no duty to the plaintiff licensee to warn of the danger. Dowen also provided that the risk was open and obvious even without the presence of a pier although the court was clear that a different result would have obtained for a minor plaintiff.

In response, defendant contends that summary judgment was appropriate because the danger was obvious and plaintiff understood the risk.

The conduct to be considered in the instant case is a common sight on beaches everywhere and within the general experience of those who have engaged in swimming activities at beaches. Plaintiff entered the water from a standing position and made a surface dive.

Plaintiff contends that the decisions in Leonard v. Pitstick Dairy Lake & Park, Inc. (1984), 124 Ill. App. 3d 580, 464 N.E.2d 644 (Leonard I), and Leonard v. Pitstick Dairy Lake & Park, Inc. (1990), 202 Ill. App. 3d 817, 560 N.E.2d 467 (Leonard II), support a reversal of the summary judgment in the present case. We agree.

Like plaintiff in the present case, the 15-year-old plaintiff in the Leonard cases was rendered a quadriplegic from spinal cord injuries incurred after performing a dive from the shoreline into the shallow water of a commercial beach. Like defendant in the present case, the Leonard defendant was the owner and operator of the beach. The case was tried on the same negligence theories which are alleged by the present plaintiff, i.e, that the defendant landowner was negligent in permitting young persons to perform surface dives in shallow water and in failing to post signs warning of the danger. Leonard appealed from a jury verdict entered for the defendant.

On appeal, the court in Leonard I held that the trial court committed reversible error in excluding the opinion of plaintiff’s expert that the unique characteristics of teenage boys made surface diving an unsafe practice in the shallow area of a beach and that the accident could have been prevented if warning signs had been posted and if the lifeguards had been instructed to prohibit diving in shallow water. The court reasoned:

“[T]he danger of diving head first into shallow water may seem at first glance to be a matter of common knowledge and understanding for which expert opinion is not needed. However, closer examination of the evidence indicates that the nature and extent of the danger of surface or horizontal diving by teenagers in all probability is not commonly understood, even by many adults of considerable experience.” Leonard, 124 Ill. App. 3d at 586.

The court further found that the age of the 15-year-old plaintiff at the time of the accident was an important factor because “[i]t was precisely the unique characteristics of teenage boys, newly grown taller and heavier and stronger, that in [the expert’s] opinion made surface diving an unsafe practice in the shallow area of defendant’s beach.” Leonard, 124 Ill. App. 3d at 587.

After a retrial, the court in Leonard II reiterated its finding in Leonard I that “the law in Illinois requires adults to use extra care and additional vigilance where the safety of minors is involved as compared to the care required for the safety of adults.” Leonard, 202 Ill. App. 3d at 825-26.

Contrary to defendant’s assertion that the thoughtfully written Dowen case mandates the entry of summary judgment, we find Do-wen distinguishable. (Dowen, 191 Ill. App. 3d 903, 548 N.E.2d 346.) The 23-year-old plaintiff in Dowen became permanently paralyzed when, sometime after midnight, he dove off a pier which extended about 100 feet from the shoreline into a muddy lake. The Dowen court concluded that “an attempt to execute a flat dive into the uncertain depths of muddy lake waters presents an open and obvious danger of paralysis to a reasonable adult of plaintiff’s age and experience” and thus, “as a matter of law, defendants owed plaintiff no duty under the facts of this case.” Dowen, 191 Ill. App. 3d at 904-05.

Plaintiff in the present case is a minor while the Dowen plaintiff is an adult. The present case involves a municipal defendant who supervised the public beach where the accident occurred while the defendant in Dowen is a private landowner who owes a licensee only the limited duty to warn of concealed defects that are known to the owner. The court in Dowen expressly recognized that Leonard I was inapposite because it “involved a landowner’s duty under ordinary negligence principles to protect children from foreseeable injuries not open and obvious to the children.” Dowen, 191 Ill. App. 3d at 909.

As recognized in the Dowen and Leonard decisions, the law affords special protection for children in certain cases. Even where the children are trespassers, a landowner bears a duty to protect them from injury due to a dangerous, nonobvious condition. (Ford v. Wilson (1989), 184 Ill. App. 3d 374, 540 N.E.2d 1.) In Ford, a 13-year-old plaintiff, while riding a bicycle from a bike path into a parking lot of a shopping center, was hit by a car on the road which encircled the mall. The Ford court concluded that the intersection of a bike path and a roadway adjacent to a shopping mall could constitute a dangerous condition which was not obvious to children. In its discussion of the Ford case, the Leonard II court found, and we agree, that “[i]f a landowner is responsible for preventing foreseeable harm to children who trespass upon the owners’ property, surely the owner must be even more responsible in the case of a minor invited to purchase a ticket and to swim at the owner’s public recreational beach facility.” Leonard, 202 Ill. App. 3d at 827.

The additional cases defendant cites (Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 564 N.E.2d 778; Shull v. Harristoum Township (1992), 223 Ill. App. 3d 819, 585 N.E.2d 1164; Hagy v. McHenry County Conservation District (1989), 190 Ill. App. 3d 833, 546 N.E.2d 77) are also factually distinguishable. The diving at issue in Hagy was a headfirst vertical dive from an embankment of 8 to 12 feet in height into a muddy creek of uncertain depth which the defendant district had not developed as a recreational area. The Hagy court specifically recognized that the diving considered in Leonard, i.e., surface diving in shallow water at a commercial lake, was quite a different activity.

In Shull, an eight-year-old boy injured his hand while swinging on a sliding gate of a fence that surrounded the defendant township’s storage yard. The Shull court found that, as a matter of law, the gate was not a dangerous condition from which the township had to protect children of the plaintiff’s age and maturity but rather posed an obvious risk of injury. Shull, 223 Ill. App. 3d at 829.

In Logan, a boy was injured when he fell out of a tree and into the water. The Logan court concluded that the risk of falling out of a tree, not diving, was an obvious danger which the plaintiff was reasonably expected to understand and thus the defendants had no legal duty. Logan, 139 Ill. 2d at 241; see also Barrett v. Forest Preserve District (1992), 228 Ill. App. 3d 975.

The purpose of warning is to apprise a person of the existence of a danger of which he is not aware. (Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 365 N.E.2d 80.) Thus, a duty to warn arises where the existence of a dangerous condition is known or could have been known, and it is not apparent to the other party. (Pitler v. Michael Reese Hospital (1980), 92 Ill. App. 3d 739, 415 N.E.2d 1255.) “ ‘A duty to warn exists where there is unequal knowledge, actual or constructive [of a dangerous condition], and the defendant possessed of such knowledge, knows or should know that harm might or could occur if no warning is given.’ ” (Pitler, 92 Ill. App. 3d at 745, quoting Kirby v. General Paving Co. (1967), 86 Ill. App. 2d 453, 457, 229 N.E.2d 777.) The duty to warn coexists with the corresponding liability for the hazards of the condition if no warning is given. (Chisolm, 47 Ill. App. 3d 999, 365 N.E.2d 80.) Accordingly, whether a plaintiff was aware of the risk at issue and whether a defendant knew or should have known of the danger must be considered by the trier of fact.

Conversely, a landowner has no duty to warn a person of a risk that is open and obvious. (Bowen, 191 Ill. App. 3d 903, 548 N.E.2d 346.) The Illinois Supreme Court has specifically recognized three risks as being obvious to children, i.e., water, fire, or falling from a height. (Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177.) Any child of an age to be allowed at large is expected to appreciate an obvious and open danger. Corcoran, 73 Ill. 2d at 327.

The obvious risk as applied to most cases involving water is the danger of drowning. Cope, 102 Ill. 2d 278, 464 N.E.2d 1023; Old Second National Bank v. Aurora Township (1987), 156 Ill. App. 3d 62, 509 N.E.2d 692 (the danger of drowning by inner tubing on fast-moving floodwater in a ditch presented an obvious risk which the 14-year-old decedent could not have failed to appreciate); Durham v. Forest Preserve District (1986), 152 Ill. App. 3d 472, 504 N.E.2d 899 (defendant, as a matter of law, owed no duty to the 16-year-old decedent who drowned because the retention pond, which was used for fishing, not swimming, presented an obvious and open danger).

Even if a risk is considered open and obvious, a duty to warn may still be imposed. In addressing the obvious risk principle, the Illinois Supreme Court found that a rule consistent with an owner’s general duty of reasonable care “recognizes that the ‘obviousness’ of a condition or the fact that the injured party may have been in some sense ‘aware’ of it may not always serve as adequate warning of the condition and of the consequences of encountering it” (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 148-49, 554 N.E.2d 223.) If the plaintiff “was also guilty of negligence contributing to his injury, then that is a proper consideration under comparative negligence principles.” Ward, 136 Ill. 2d at 152.

Applying these principles to the present case, we believe that summary judgment was not appropriate because the trier of fact has the function of determining whether or not defendant’s duty to use reasonable care included a duty to warn, and whether plaintiff’s understanding of the risk relieved defendant of any duty to warn.

The cases relied on by the present parties which specifically address the danger of shallow water diving do not suggest a different result.

Judgment reversed and remanded.

TULLY and CERDA, JJ., concur.

      In the trials which preceded the decisions in both Leonard I and Leonard II, the juries returned verdicts for the defendant.


author: JUSTICE CERDA JUSTICE TULLY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD CEASAR, Defendant-Appellant.
    First District (3rd Division)
    No. 1—90—1570
    Opinion filed June 17,1992.
    TULLY, J., dissenting.
    Randolph N. Stone, Public Defender, of Chicago (Beth I. Solomon and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

Defendant, Richard Ceasar, appeals after a jury trial from his conviction of theft (Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1(a)(1)). Defendant argues on appeal that: (1) the State failed to prove beyond a reasonable doubt that he committed theft; (2) the trial court erred in permitting the introduction of the hearsay evidence of a conversation; (3) his right to a fair trial was violated by the introduction of other crimes evidence; (4) the trial judge abandoned his role as an impartial party and erroneously assumed the role of advocate by giving his opinion regarding what the evidence proved; (5) the trial court failed to advise him of the option of sentencing under the Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1989, ch. lll½, par. 6360 — 1) where the trial court had reason to believe that defendant was a drug addict; and (6) the trial court abused its discretion in sentencing defendant to a term of imprisonment greater than the maximum permissible sentence.

Ruth Qualkenbush testified at the jury trial to the following. She arrived at Midway Airport at approximately 6:30 a.m. on February 6, 1989. She had a wallet inside her purse that day, and she had a $20 bill, a $10 bill, and three $1 bills. She missed her wallet when she went to the coffee shop after taking care of her ticket. But she had other money and did not think more about it until she was taken off the plane and told someone had taken her wallet. She never saw the person who took her wallet.

David Holmes testified to the following. He was a passenger service agent for Midway Airlines. On February 6, 1989, at approximately 7:30 a.m., he had a conversation with a passenger in front of the ticket counter where he was working. After this conversation, he told a police officer that there was a pickpocket in front of the ticket counter. Holmes pointed out defendant and codefendant Jerrell Russell to the officer; the two men were standing near the exit door. Earlier, he saw codefendant bumping into people in ticket lines and defendants talking to each other.

Chicago police officer Joseph Carone testified to the following. Holmes told him that two men had picked a woman’s purse, and Holmes pointed out defendants. Defendants exited the airport together at a very fast pace, and Carone pursued them. Defendants crossed the street, started running, and constantly looked back towards Carone, who was wearing his police uniform. Defendants boarded a bus, which the officer stopped and boarded. He observed defendants sitting together in the rear. Codefendant took a wallet from his pocket and dropped it on the floor. Carone recovered the wallet and took defendants back to the airport. Mrs. Qualkenbush identified the wallet as hers. Carone recovered a $20 bill, a $10 bill, and three $1 bills from codefendant but recovered nothing from defendant. Neither defendant had an airline ticket or a receipt.

The jury found defendants guilty of theft.

Defendant filed a motion for a new trial in which he argued, inter alia, that the State failed to prove that a theft occurred and that defendant aided a theft. The motion was denied. Defendant was sentenced to six years’ imprisonment.

Defendant argues on appeal that there was no evidence supporting his conviction for theft based on accountability.

Defendant was charged with theft in that he “knowingly *** obtained] or exert[ed] unauthorized control over property of the owner.” (Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1(a)(1).) A person is legally accountable for the conduct of another when:

“Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1989, ch. 38, par. 5 — 2.)

The elements of accountability are: (1) defendant elicited, aided, abetted, agreed, or attempted to aid another person in the planning or commission of the offense; (2) this participation took place before or during the commission of the offense; and (3) there was a concurrent and specific intent to promote or facilitate the commission of the offense. (People v. Valen (1989), 183 Ill. App. 3d 571, 577, 539 N.E.2d 261.) Mere presence at the scene of a crime, even with knowledge that the crime is being committed, is not enough to prove participation. Valen, 183 Ill. App. 3d at 577.

The only evidence of defendant’s possible involvement with the theft of the wallet was that he was seen with codefendant after the theft must have taken place and that he ran with codefendant to the bus upon being pursued by a police officer. That defendant was in the presence of a thief and ran from the police did not establish that he participated in or facilitated the theft.

The judgment of the circuit court is reversed.

Reversed.

RIZZI, J., concurs.

JUSTICE TULLY,

dissenting:

After examining the record and briefs in this case, I am of the opinion that the decision to reverse the conviction of Richard Ceasar is in error. The basic facts of this case are that the victim in this instance had her wallet removed from her possession while purchasing a ticket at Midway Airport in Chicago. She did not realize this until later informed of the theft while on the airplane. After buying her ticket, she noted that she did not have her wallet, but having other money, she did not begin to search for it. Police officer Carone later showed her the missing wallet. She indicated that she gave no permission to any of the individuals, who were subsequently charged as defendants in this case, to take her wallet or money. She did not see anyone remove her wallet. She did not see defendant Ceasar or codefendant Russell reach into her purse, where she kept the wallet. She remembered being in a ticket line of moving people at the crowded airport, although she did not recall any particular shoving by anybody.

An agent by the name of David Holmes testified that he was employed for over six years as a service agent at the terminal area checking people in. On February 6, 1989, he was at the front counter helping passengers. At 7:30 a.m., he had a conversation with a passenger and went to the security area approximately 65 or 75 feet away to call a police officer. He told the officer that a “pickpocket” was in front of the Midway Airlines ticket counter and pointed two men out to the officer. Holmes singled out the defendant and Jerrell Russell. At that point, they were about five feet from an exit, looking towards Holmes and the officer. As the police officer walked towards them, they began to quickly walk away.

The ticket agent said that he had seen the defendant and Jerrell Russell talking with each other and walking down the line of waiting customers, bumping into people. Russell was about 5 to 15 feet away and Holmes asked him if he needed some help. Russell said that he did not. The two men left together and five minutes later, they were brought back by two police officers. The officers returned with a woman’s wallet recovered from Russell and found the complainant Ruth Qualkenbush’s driver’s license within. Qualkenbush identified the wallet as hers.

The ticket agent did not see the defendant take the wallet, nor did he see the defendant with the wallet, or near the victim, nor did he know the name of the original person who pointed out the crime. He was, however, able to describe the defendant’s clothes, gym shoes and beard. He also noted Russell had a scar near his left eye.

Officer Carone had been assigned to the eighth district and was working at Midway Airport in the security screening area when Holmes informed him that two men had taken a woman’s purse and a wallet in the ticket line area. Holmes gave Officer Carone a description of two black males in dark clothing, carrying a cleaner’s bag. As they approached the ticket line area, Holmes identified the defendant and Jerrell Russell, who were standing about 75 feet away. The defendant and Russell looked toward Carone and then exited at a very rapid pace.

They moved towards Cicero Avenue and started to run, crossing the street, repeatedly turning back at Officer Carone, who was about 100 to 150 feet behind. At 59th and Cicero streets they boarded a bus, but Officer Carone stopped the bus and boarded it. The two men were sitting together at the rear, Russell on the aisle seat and the defendant by the window. No other black males were on the bus. Russell took a wallet from his right-hand pocket and dumped it on the floor between his legs.

Carone removed the wallet and brought the two men back to the airport terminal. Both men were short of breath from running. Carone opened the wallet and found the victim’s driver’s license. Holmes identified defendant and Russell as the two men he had pointed out and left to locate the victim. The victim indicated that $33 was missing from her wallet. The exact amount was recovered in the form of a $20 bill, a $10 bill and three singles, which was the amount and the type of money that was missing from the victim. The money was in Russell’s right-hand pocket. Defendant had no money at all. Neither person had airline tickets or receipts, yet they had been standing in the ticket line. During the entire incident, defendant and Russell were always together at the airport and while running or while on a bus.

Defendant Ceasar was proven guilty beyond a reasonable doubt of theft and received a sentence that was in line with the sentencing provisions of the Illinois criminal code. The court examined the defendant’s criminal record and considered the length of the defendant’s sentence in the Illinois Department of Corrections. The court indicated that the defendant had committed numerous crimes and that the public should be protected from him. The State had asked for the maximum extended term, noting his extensive criminal record, which included three crimes to which he had pled guilty on April 19, 1990. The first two crimes were committed while the defendant was out on bond. One was a similar theft case based on a visual account by a police officer who saw the defendant stand behind a woman in line at a restaurant, reach into the victim’s purse, remove her wallet and put it in his pocket.

The evidence was not so improbable in this case that it created a reasonable doubt of defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) In People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461, the court considered, after viewing the evidence in the most favorable light to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. That was the relevant question. In People v. Rodgers (1987), 160 Ill. App. 3d 238, 513 N.E.2d 582, the court held that in order to secure a conviction on accountability principles, the State need not show defendant’s actual participation, but it must show his involvement in some fashion and a sharing of the criminal purpose underlying the defense. As to the defendant’s argument that there was no evidence that a theft even occurred, it should be noted that both the defendant and Russell ran as soon as they saw the ticket agent pointing them out to the police. Both were apprehended together on the bus with the victim’s wallet on the floor in full view of Officer Carone. The service agent, Holmes, had seen Russell walking down a line of customers, bumping into people. Clearly, Russell and the defendant were mutually involved with this incident.

The defendant relies on People v. Thompson (1975), 35 Ill. App. 3d 105, 340 N.E.2d 631, where the court held that presence at the scene of a crime coupled with knowledge that a crime was in progress was not enough to support a conviction. However, there were no eyewitnesses in that case placing the defendants at the exact scene of the crime. In the instant case, the defendant was seen bumping into people at the ticket counter, where the victim had earlier stood. Moreover, the defendants in Thompson did not flee upon seeing the police. This is an important distinction in this case. As to the argument by the defendant, that there was insufficient proof that he took part in this theft, the evidence shows that the defendant participated in the incident and that he took part in the ultimate criminal goal of the offense, which obviously was to take the victim’s money.

Russell and the defendant were apprehended on a bus. Defendant, in fact, lives on the north side of Chicago and was at Midway Airport on the south side at 7:30 a.m. without any airline ticket or money. Certainly, these are interesting circumstances to consider. The ticket agent also testified that apart from pointing them out to the police, the defendant and Russell were seen talking to each other. Upon seeing the officer and the agent talking to each other, both left the airport and continued to flee with the police in pursuit. There was no halting or stopping by the defendant. He ran. There is no reason for a court of review to substitute its judgment for that of the trial court unless the evidence is so improbable as to raise a reasonable doubt of the defendant’s guilt. People v. Hoffman (1970), 45 Ill. 2d 221, 226, 258 N.E.2d 326.

As to the argument by the defendant that the trial court permitted improper hearsay evidence into the case by allowing police officer Carone to testify to the general substance of his conversation with David Holmes, the service agent, the relevancy of the testimony does not depend on the truth of the matter asserted or defendant’s belief in its truth. It was never offered to show the truth of the matter asserted, but rather, to explain why the police officer approached and then pursued the defendant and Russell. The description of the defendant fit the type of crime being investigated. Police officers may properly testify about otherwise hearsay material to explain police action and investigation. People v. Jenkins (1989), 190 Ill. App. 3d 115, 116, 545 N.E.2d 986, 987; see also People v. Daniel (1989), 191 Ill. App. 3d 837, 840, 548 N.E.2d 354, 357.

Moreover, this objection was never raised at trial nor in a post-trial motion. It was raised for the first time at appeal and is, thus, waived. The evidence in this case was not so closely balanced that the verdict would have been different pursuant to Supreme Court Rule 615. Accordingly, the plain error rule would not apply in this instance. (134 Ill. 2d R. 615.) Ample evidence was presented through David Holmes and Officer Carone. The jury weighed and considered this and concluded that the defendant had committed theft. The evidence overwhelmingly proved beyond a reasonable doubt that the defendant was guilty of the crime. It is clear that the defendant aided and abetted the commission of this crime with the other person, Russell. Illinois law indicates that an individual is legally accountable for the conduct of another when his conduct complies with certain statutory requirements. (Ill. Rev. Stat. 1989, ch. 38, par. 5 — 2.) If accountability is defined according to the majority opinion which was utilized here, the elements of accountability are: (1) defendant enlisted, aided, abetted, agreed or attempted to aid another person in the planning or the commission of the offense; (2) this participation took place before or during the commission of the offense; and (3) there was a concurrent and specific attempt to promote or facilitate the commission of the crime.

Sufficient elements of this definition are present to hold the defendant accountable. Therefore, I would find that there is sufficient evidence to support the conviction of theft based on accountability. The State did prove that a theft occurred and that defendant aided the theft. The sentence that defendant received was proper and in line with the applicable statute. The conviction as well as the sentence of six years should be affirmed. The majority has misconstrued the law in the instant case.


text:
    PHILIP GROARK, Plaintiff-Appellant, v. THORLEIF LARSEN AND SON, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—91—0160
    Opinion filed June 17, 1992.

      McKenzie & McKenzie, P.C., of Chicago (Kevin D. Sprow and Robert E. McKenzie, of counsel), for appellant.
    Kirk L. Miller, of Highland Park, for appellees.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

In this retaliatory discharge action, plaintiff, Philip Groark, appeals from the circuit court’s dismissal of his complaint as against one defendant, Larsen/Precision Joint Venture, upon its motion under section 2 — 619 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619).

We affirm.

Plaintiff filed a two-count second amended complaint seeking damages for retaliatory discharge against three named defendants: (1) Thorleif Larsen & Son, Inc. (Larsen); (2) Precision Contractors, Inc. (Precision); and (3) Larsen/Precision Joint Venture (Joint Venture). Count I of the complaint was directed against both Larsen and Joint Venture. Count II was directed against Precision only and is not at issue on this appeal. Joint Venture is the only defendant involved in this appeal.

In his complaint, plaintiff alleges that he was hired by Joint Venture in April 1986. From April 15, 1986, to October 12, 1987, he was employed by Joint Venture and Larsen at various times as a brick layer and as a foreman. The W-2 tax forms for 1987 attached to plaintiff’s complaint reveal earnings of approximately $1,277 from Joint Venture and $12,338 from Larsen.

On April 8, 1987, plaintiff was injured while in the scope of his employment -with Joint Venture, but he continued to work through May 1, 1987, at respective times for Larsen and Joint Venture. On May 1, 1987, plaintiff notified Larsen and Joint Venture that he could no longer work due to his April 8 injury.

Joint Venture or its insurer paid plaintiff’s medical bills and temporary total disability through June 6, 1987. On July 16, 1987, plaintiff filed a workers’ compensation claim against Joint Venture.

On October 11, 1987, plaintiff’s doctor authorized him to return to work but plaintiff was then advised by Larsen and Joint Venture that his employment was terminated.

In the October 25, 1987, Chicago Tribune newspaper, an advertisement for bricklayers appeared for Larsen for a construction job in Oak Lawn.

Plaintiff alleges that the sole reason for his termination was based on his seeking workers’ compensation.

By affidavit, plaintiff also declares that Joint Venture and Larsen occupied the same office space, used the same telephones, and employed many of the same personnel. Plaintiff further states that Larsen exercised discretionary authority over the allocation of his assignments between Larsen and Joint Venture.

By written agreement, Joint Venture was created between Larsen and Precision for the sole and limited purpose to bid, obtain and perform the masonry work on one project, i.e., the construction of a terminal facility for United Airlines at O’Hare Airport. The agreement specifically provides that “the parties hereto desire to enter into this Joint Venture Agreement for the joint performance of the CONTRACT of United Airlines.” Larsen had a 70% interest and Precision had a 30% interest.

The airline project consisted of two phases. During phase I, Joint Venture employed up to 82 field personnel on a daily basis. Phase I was substantially completed by August 4, 1987. After the completion of phase I, Joint Venture reduced its work force to five or less workers. Phase II could not commence until March 1, 1988. Accordingly, when plaintiff attempted to return to work on October 11, 1987, Joint Venture did not require a bricklayer.

On May 21, 1990, the circuit court granted defendants’ section 2— 619 motion to dismiss count I of plaintiff’s complaint as against Joint Venture and stated “[y]ou [plaintiff] can’t collect twice.” On December 11, 1990, the circuit court denied plaintiff’s motion to reconsider and indicated that it had dismissed count I against Joint Venture due to the unavailability of work at Joint Venture when plaintiff attempted to return to work.

Plaintiff first submits that the circuit court erred when it dismissed his claim against Joint Venture on May 21, 1990, because the circuit court reasoned that he “can’t collect twice.” To the extent that the circuit court based its decision on the belief that a discharged employee could not pursue a retaliatory discharge action after receiving workers’ compensation benefits, such reasoning is incorrect. However, “[i]t is well settled that on appeal the correctness of the trial court’s action, and not its reasoning, is the subject of review.” Village of Northbrook v. Cannon (1978), 61 Ill. App. 3d 315, 319, 377 N.E.2d 1208.

Plaintiff recognizes that the unavailability of work has been held to be a valid and nonpretextual basis to discharge an employee in Lewis v. Zachary Confections Co. (1987), 153 Ill. App. 3d 311, 505 N.E.2d 1087, but attempts to distinguish Lewis on the grounds that it did not involve a joint venture.

In response, Joint Venture contends that it cannot be held liable for retaliatory discharge because it had no work available at the time plaintiff attempted to return to work, relying on Lewis.

Section 2 — 619(a)(9) provides for the involuntary dismissal of an action where “the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9).) Accordingly, in a motion brought under section 2 — 619, the court must consider whether the defendant has brought forth facts which constitute an affirmative defense that could defeat the plaintiff’s cause of action. Prodromos v. Poulos (1990), 202 Ill. App. 3d 1024, 1028, 560 N.E.2d 942.

In the present case, plaintiff’s cause of action is based on retaliatory discharge and the “affirmative matter” advanced by Joint Venture to defeat plaintiff’s claim is the unavailability of work.

An at-will employment relationship generally may be terminated at any time for any reason or no reason at all. (Marin v. American Meat Packing Co. (1990), 204 Ill. App. 3d 302, 562 N.E.2d 282.) The tort of retaliatory discharge was recognized as an exception to the general rule in order to prevent employers from putting employees in a position of having to choose between their jobs and seeking their remedies under the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 184, 384 N.E.2d 353.) Illinois has a strong public policy to insure the protection of workers covered by the Workers’ Compensation Act. Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 150, 473 N.E.2d 1280.

Three elements are necessary to state a cause of action for' retaliatory discharge for filing a workers’ compensation claim: (1) the plaintiff’s status as an employee of the defendant before injury; (2) the plaintiff’s exercise of a right granted by the Workers’ Compensation Act; and (3) the employee’s discharge causally related to the filing of the workers’ compensation claim. (Lewis, 153 Ill. App. 3d at 315.) The first two elements are not in dispute in the present case.

The mere discharge of an employee who has filed a workers’ compensation claim does not satisfy the requirement of causal relationship if the basis for the discharge is valid and nonpretextual. Slover v. Brown (1986), 140 Ill. App. 3d 618, 488 N.E.2d 1103 (an employer may fire an employee for excessive absenteeism).

A valid nonpretextual basis for discharge which would negate this element includes the discharge of an employee due to lack of work. (Lewis, 153 Ill. App. 3d at 316.) In Lewis, the court reversed a jury verdict for the plaintiff because the evidence was insufficient to support the verdict that the plaintiff was a victim of retaliatory discharge. The plaintiff, as well as 8 or 10 other employees, had been laid off due to a slowdown of production.

Similarly, where the uncontradicted evidence revealed that the plaintiff’s termination was part of a general cutback in employment by the defendant, no retaliatory cause of action was found to exist. Armstrong v. Freeman United Coal Mining Co. (1983), 112 Ill. App. 3d 1020, 446 N.E.2d 296 (the court affirmed the entry of summary judgment for the defendant).

Like the defendants in Lewis and Armstrong, Joint Venture had reduced its work force. In August 1987 after the work on phase I of the airline project had been completed, Joint Venture cut back the number of its employees from about 82 to 5 workers. Plaintiff wanted to return to work in October of 1987. Phase II of Joint Venture’s project was to commence in March of 1988.

In light of Joint Venture’s overall reduction in its work force, we find that the elements required to sustain a cause of action for retaliatory discharge against Joint Venture have not been met.

Next plaintiff asserts that it was error to dismiss his complaint against Joint Venture because Joint Venture and Larsen are not separate entities. Plaintiff argues that Joint Venture cannot be treated separately from its participants, i.e., Larsen and Precision. Plaintiff submits that even if Joint Venture had no work available, Larsen had work available as evidenced by the newspaper ad for bricklayers. Thus, under plaintiff’s “one entity” theory, the unavailability of work at Joint Venture is immaterial because work was available at Larsen and Larsen shifted its workers between assignments at Larsen and Joint Venture.

A joint venture is an association of two or more persons to carry out a single enterprise for profit. (Smith v. Metropolitan Sanitary District of Greater Chicago (1979), 77 Ill. 2d 313, 318, 396 N.E.2d 524; Ambuul v. Swanson (1987), 162 Ill. App. 3d 1065, 516 N.E.2d 427.) A joint venture is not regarded as identical with a partnership, although, as a practical matter, the only distinction between the two entities is that a joint venture relates to a single specific enterprise or transaction while a partnership relates to a general business of a particular kind. Smith, 77 Ill. 2d at 317-18; Ambuul, 162 Ill. App. 3d at 1070.

Partnership principles govern joint ventures. Bachewicz v. American National Bank & Trust Co. (1986), 111 Ill. 2d 444, 448, 490 N.E.2d 680; Smith, 77 Ill. 2d at 318 (the rights and liabilities of the members of a joint venture are tested by the same legal principles which govern partnerships); Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 438, 394 N.E.2d 380 (“[w]hen a joint venture is found to exist, the legal principles pertaining to the relationship between partners govern”); Ambuul, 162 Ill. App. 3d at 1070 (a joint venture “relationship is governed by the legal principles applicable to partnerships”).

A joint venture, like a partnership, is liable to third persons for wrongful acts of its venturers done in the course of the joint venture agreement. See Tassan v. United Development Co. (1980), 88 Ill. App. 3d 581, 588, 410 N.E.2d 902 (“[e]very member of a joint venture is liable to third persons for acts of his fellow venturers done in the course of the enterprise”); Baker Farmers Co. v. ASF Corp. (1975), 28 Ill. App. 3d 393, 396, 328 N.E.2d 369 (“one member of the joint venture is liable to third parties for acts of his fellow venturer made in the course of the enterprise”); Joseph W. O’Brien Co. v. Highland Lake Construction Co. (1972), 9 Ill. App. 3d 408, 413, 292 N.E.2d 205 (“each member of a joint venture, like a partner, is liable to third persons for the acts of any other member within the scope of the joint venture agreement”).

The sole business purpose of Joint Venture related to the construction of the airline terminal at O’Hare Airport. Applying the partnership liability principle, Joint Venture can only be liable to third persons for the acts or omissions of its members relating to that project. Accordingly, Joint Venture cannot be held liable because of the availability of work at Larsen’s Oak Lawn project, such work being outside the stated scope of the joint venture.

Our decision in this case regarding Joint Venture does not affect the remaining defendants, Larsen and Precision. An employee can state a valid cause of action for retaliatory discharge against an employer who discharges the employee for filing a workers’ compensation claim against a former employer. Darnell v. Impact Industries, Inc. (1984), 105 Ill. 2d 158, 473 N.E.2d 935.

Next plaintiff contends that even if no work was available in October of 1987, Joint Venture had a duty to recall him when work began on phase II in March of 1988. Plaintiff first advanced the right to recall issue in his reply brief to this court and relied on Motsch v. Pine Roofing Co. (1988), 178 Ill. App. 3d 169, 533 N.E.2d 1.

We find that plaintiff has waived this issue for purposes of appeal. Supreme Court Rule 341 mandates that points not argued in appellant’s original brief “are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.” (134 Ill. 2d R. 341(e)(7); see also Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 141-42, 478 N.E.2d 384 (“an issue not raised in the circuit court cannot be raised for the first time on appeal”); Yates v. Doctor’s Associates, Inc. (1990), 193 Ill. App. 3d 431, 442, 549 N.E.2d 1010 (“an issue not presented to or considered by the trial court cannot be raised for the first time on review”).) Failure to propose a particular theory before the circuit court and then to advance it before the appellate court is unfair to the other party, who had no opportunity to present pertinent rebuttal evidence on such theory which could have had a bearing on the disposition of the case. See People v. Edwards (1976), 35 Ill. App. 3d 807, 809, 342 N.E.2d 800.

Moreover, the Motsch case is clearly distinguishable from the present case. Unlike plaintiff in the instant case, the plaintiffs in Motsch expressly alleged in their complaint a cause of action for retaliatory discharge and a separate count for retaliatory refusal to recall.

Judgment affirmed.

TULLY and CERDA, JJ., concur.