author: JUSTICE KNECHT

text:
      In re GUARDIANSHIP OF CLIFFORD A. BABB (Glenn P. Babb, Guardian of the Person and Estate of Clifford A. Babb, Petitioner-Appellee, v. The City of Champaign, Respondent-Appellee (Ed Roesch Equipment Company, Intervening Petitioner-Appellant; Reach All et al., Intervenors-Appellants)).
    Fourth District
    No. 4—90—0425
    Opinion filed June 29, 1992.
    Rehearing denied August 27, 1992.

      James C. Kearns, of Heyl, Royster, Voelker & Allen, of Urbana, for appellant Ed Roesch Equipment Company.
    Richard F. Record, Jr., and Mark R. Karpus, both of Craig & Craig, of Mattoon, for appellant Goforth Industries, Inc.
    Lord, Bissell & Brook, of Chicago (R. Bruce Duffield, Hugh C. Griffin, Diane I. Jennings, and Rebecca S. Kallas, of counsel), for appellant Reach All.
    Donald M. Tennant and Renee L. Monfort, both of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellant Sweeney Industries, Inc.
    John T. Coleman and Richard B. Foster III, both of Baker & McKenzie, of Chicago, for appellant Ford Motor Company.
    Ronald F. DeNardis, of DeNardis, McCandless & Mueller, P.C., of Detroit, Michigan, for appellant Parker Fluid Connectors.
    Richard R. Harden, of Thomas, Mamer & Haughey, of Champaign, for appellee City of Champaign.
   JUSTICE KNECHT

delivered the opinion of the court:

Ed Roesch Equipment Company (Roesch) appeals from an order of the Champaign County circuit court approving a settlement agreement between the estate of Clifford Babb and the City of Champaign (City) in this guardianship case and before any lawsuits were filed in relation to the injuries underlying the claim upon which the settlement agreement was based. On appeal, we have allowed Reach All, Goforth Industries, Inc. (Goforth), Ford Motor Company (Ford), Sweeney Industries (Sweeney), and Parker Fluid Connectors (Parker) to intervene as appellants. We affirm.

Clifford Babb, a city employee, sustained severe and permanent injuries on September 14, 1988, when he fell 20 to 40 feet, onto his head, from a cherry picker when the truck supporting the cherry picker caught fire. Clifford was then 33 years old. Medical records accompanying the guardianship petition indicate Clifford suffers severe cognitive deficits; his cognitive abilities are below the first percentile for American adults his age. His reading, writing, and mathematical skills are poor and he has difficulty with reasoning and memory. In short, the medical reports conclude Clifford will be unable to manage his own affairs for the rest of his life. The Champaign County circuit court appointed Glenn Babb, Clifford’s father, as his guardian.

Glenn, as guardian of Clifford’s estate, petitioned the court for approval of a partial settlement, with the City, of the “personal injury claim.” The petition alleged there were meritorious primary liability claims available against the manufacturer, distributor, modifier, and component suppliers of the truck. Secondary liability could, according to the petition, be asserted against the City by the primary defendants in the contemplated action, exposing the City to substantial financial liability.

The petition also alleged an agreement wherein the City would be released from secondary liability in exchange for payment of $400,000 from the City’s insurer to Clifford’s estate. The workers’ compensation claim was not settled and the parties agreed benefits would continue to Clifford. The attorney for the Babbs, Robert Auler, was to receive $133,333.33 of the $400,000 as the fee for legal representation in the “partial settlement.” Further, Auler was to receive $35,000 to cover expenses incurred during litigation of primary liability.

The parties did not submit the agreement itself to the court; the petition contained only a description of the agreement. The court entered an order allowing Glenn’s petition seeking approval of the settlement agreement, stating: “[T]he petition is allowed and the settlement of the potential claim or claims against the City of Champaign in the sum of 400,000 dollars is authorized and Attorney Robert Auler is directed to proceed with all steps necessary to secure the afore said [sic] settlement.”

Glenn and the City filed a motion for a finding of good faith on the same day the court entered the above order. Attached to the motion was a copy of the settlement agreement and release. The settlement agreement itself provided, in pertinent part:

“1. The parties to this contract agree that CHAMPAIGN[, the City,] shall pay to BABB the amount of $400,000.00, of which amount $50,000.00 shall be without recourse. BABB shall repay to CHAMPAIGN, or its insurer, the amount of $350,000.00 from any recovery BABB may receive from any other party by settlement, verdict, judgment or otherwise, pertaining to the injuries and damages suffered by CLIFFORD BABB as aforesaid.
3. The parties to this contract agree that BABB waives, releases and forever discharges, in favor of CHAMPAIGN, any rights BABB has to recover any attorney’s fee and costs out of sums to be paid to CHAMPAIGN, or its insurer, as reimbursement or as a credit against future payments, for any payments CHAMPAIGN, or its insurer, has made pursuant to its obligation to CLIFFORD BABB under the Workers’ Compensation Act. BABB further agrees to negotiate and consummate a contract with any attorneys retained subsequent to Robert I. Auler whereby a waiver, release and discharge of said attorney fee, plus costs, is incorporated as part of said retention of counsel.
4. The parties to this contract agree that CHAMPAIGN, or its insurer, will continue to meet all legal obligations to CLIFFORD BABB pursuant to the Workers’ Compensation Act despite any right CHAMPAIGN may have to suspend payments from said obligations by operation of law because of any recovery of any settlement, verdict or judgment, or any partial recovery of any settlement, verdict or judgment, by BABB against any other party for the injuries and damages suffered by CLIFFORD BABB as aforesaid, and CHAMPAIGN will continue to so refrain from suspending payments from its Workers’ Compensation Act obligations until all settlements, verdicts or judgments against all parties against whom BABB makes a claim have been fully paid to BABB. At that time CHAM-PAIGN, or its insurer, shall be entitled to suspend payments as permitted by law to the extent any sums received by BABB by settlement, verdict or judgment from other parties exceed the total amount BABB is obligated by this agreement to repay to CHAMPAIGN, or its insurer, at that time.
5. The parties to this contract agree that settlement will not be made by BABB against any third party without the written consent of CHAMPAIGN.
9. The parties to this contract agree that it is conditioned upon entry of an Order by a Court of competent jurisdiction that this Settlement Agreement and the release contemplated in Paragraph 10 below, are made in good faith for purposes of Chapter 70, section 301, et seq., of the Illinois Revised Statutes, commonly known as the Contribution Act.
10. The parties to this contract agree that upon a finding of good faith as contemplated in Paragraph 9 above, BABB will execute a full and final release in favor of CHAMPAIGN and its insurer.”

Roesch’s brief indicates counsel for the City represented to the court, outside the record, that the then present cash value of past and future workers’ compensation payments (the value of the City’s lien) was estimated to be $2,400,000.

After receiving notice from Auler of a claim against Roesch for Clifford’s injuries, Roesch, seller of the truck to the City in 1979, filed a petition seeking to intervene herein and object to Glenn’s motion for a finding of good faith. Roesch’s petition alleged that because the settlement was contingent on a finding of good faith, (1) the petition therefore sought an advisory opinion from the court, (2) the good-faith question was premature because not all necessary parties had been made parties to the proceedings, and (3) the settlement itself was not executed in good faith. The court apparently granted Roesch’s motion to intervene.

The circuit court subsequently sent letters to each party stating, in part:

“[T]he ‘Settlement Agreement’, which is the subject at hand, was not fully — and in the court’s view, adequately — described in the March 13th Petition for Approval to Settle Cause of Action. The actual ‘Settlement Agreement’ is apparently contingent upon the court’s finding good faith and contains what is commonly known as ‘loan receipt’ provisions that gives a payback to the City of Champaign of $350,000 of a total $400,000 under certain conditions, although the attorney’s fee is payable presently and based upon the entire cash settlement amount of $400,000. The court is not at this time granting to the guardian of the estate and person of Clifford A. Babb approval to enter into the ‘Settlement Agreement’ attached to the motion for a good faith finding. Although that ‘agreement’ has been signed, there has not been any execution of it, if the contingency of a finding of good faith remains in effect, as I assume it does. It goes without saying that the court will not decide whether or not the ‘settlement’ is in good faith.” (Emphasis in original.)

The court appointed a guardian ad litem, Michael Tague, to review the settlement proposal and advise the court as to Clifford’s best interests. Tague concluded the proposed settlement agreement was in Clifford’s best interests.

The court then sent letters to each party directing Glenn and the City to resubmit the settlement agreement with the additions recommended by Tague and the City. The court also stated: “A contingency clause in my opinion renders a finding of good faith inappropriate. If the contingency of a finding of good faith is removed from the settlement agreement, I will entertain a Motion for finding in good faith.” Later correspondence from the court to the parties indicated the court did not intend to imply it would automatically make a finding of good faith.

Glenn and the City filed herein a second petition for approval to settle cause of action and a petition for finding of good faith. The revised settlement agreement omitted the good-faith-finding requirement but added new language. The following language was added to paragraph four of the original agreement:

“It is the intention of this Agreement that the entitlement to suspension of workers’ compensation benefits, as permitted by law, shall not exceed the net sums received by BABB from any civil litigation arising out of the events giving rise to his work-related injury. The parties recognize that the current state of the Illinois law relating to the mechanics of suspension of payments is unsettled and the parties wish to fix their respective rights relating to a potential for suspension of payments and to such extent their Agreement herein relating to suspension of payments shall be contractual between them.”

The revised agreement also provided if aggregate payments of all settlements or verdicts against other parties is less than $350,000, Babb is not obligated to pay back any sums other than those sums less than $350,000 actually recovered from third persons.

The court approved the “revised settlement agreement” between Babb and the City and made a separate finding of good faith. Roesch, as intervenor, filed a timely notice of appeal, invoking jurisdiction under Supreme Court Rule 304(b) (134 Ill. 2d R. 304(b)), because the circuit court refused to grant its motion for a Rule 304(a) (134 Ill. 2d R. 304(a)) finding.

The parties agree Babb filed a complaint on August 24, 1990, against Roesch, Reach All, Goforth, Ford, Sweeney, Parker, Delta Mobile Testing, and TBA Sales alleging various products liability theories. After the complaint was filed, Roesch and Babb entered into a tentative settlement agreement; the circuit court, however, denied Roesch’s motion for a good-faith finding in that case.

Various defendants then filed third-party complaints seeking contribution from the City. The City then moved to dismiss all third-party complaints and to stay proceedings pending this court’s decision on Roesch’s appeal herein from the good-faith finding entered in the agreement between Babb and the City. The record does not reveal the court’s ruling on this motion. Reach All, Goforth, Ford, Sweeney, and Parker moved to intervene as appellants in this cause, however, to protect their contribution rights against the City. This court granted the motions.

“An Act in relation to contribution among joint tortfeasors” (Act) (Ill. Rev. Stat. 1987, ch. 70, pars. 301 through 305) discharges from further liability for contribution an alleged tortfeasor who, prior to a judicial determination of liability, settles in good faith. (Ill. Rev. Stat. 1987, ch. 70, pars. 302(c), (d); Jochera v. Blake-Lamb Funeral Homes, Inc. (1989), 189 Ill. App. 3d 281, 285, 545 N.E.2d 314, 317.)

“Settlement agreements *** are supported by a public policy which favors the peaceful and voluntary resolution of claims. (Meyer v. Murray (1979), 70 Ill. App. 3d 106, 387 N.E.2d 878.) Where there is a resolution of a claim by virtue of a release or covenant, a presumption of validity is created. (McComb v. Seestadt (1981), 93 Ill. App. 3d 705, 417 N.E.2d 705.) Thereafter, the party challenging the release carries the burden of proving any assertion of invalidity. (Hudson v. Thies (1962), 35 Ill. App. 2d 189, 182 N.E.2d 760.) The evidence [of invalidity] must be ‘clear and convincing’ inasmuch as the law favors compromise. Martin v. Po-Jo, Inc. (1969), 104 Ill. App. 2d 462, 244 N.E.2d 851.” Wasmund v. Metropolitan Sanitary District of Greater Chicago (1985), 135 Ill. App. 3d 926, 928, 482 N.E.2d 351, 352-53.

See also Cleveringa v. J.I. Case Co. (1989), 192 Ill. App. 3d 1081, 1085, 549 N.E.2d 877, 879; Pritchard v. SwedishAmerican Hospital (1990), 199 Ill. App. 3d 990, 996-97, 557 N.E.2d 988, 992-93.

Roesch and the intervenors first contend the circuit court should not have ruled on Babb’s motion for finding of good faith. They assert such proceedings were improper in the guardianship case, and should have occurred only after the filing of a personal injury suit. They present several arguments in support of this position.

First, Roesch argues the good-faith question was not ripe for judicial determination because there was no pending litigation and, thus, the need for relief was speculative. Roesch cites dicta from Aetna Life Insurance Co. v. Haworth (1937), 300 U.S. 227, 81 L. Ed. 617, 57 S. Ct. 461, to support its ripeness argument. There, the Court distinguished actual justiciable controversies from hypothetical or abstract disputes. Roesch argues until litigation was filed, no one knew who the defendants would be and whether they would seek contribution from the City. The City’s claim for relief was speculative because the circuit court could not know whether Glenn would actually file any lawsuits on Clifford’s behalf, as there were no suits pending when he entered the settlement agreement herein. The need for a good-faith finding was speculative until the filing of contribution claims. Roesch maintains any named defendants should instead make a determination as to whether and/or when to seek contribution from the City after the filing of a lawsuit by Babb; at such a contribution hearing, not before, the good-faith issue would be raised by the defendants seeking contribution from the City.

The City responds by noting the Act does not limit the time for settling claims. “A cause of action for contribution among joint tort-feasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action.” (Ill. Rev. Stat. 1987, ch. 70, par. 305.) In Laue v. Leifheit (1984), 105 Ill. 2d 191, 196, 473 N.E.2d 939, 941, the Illinois Supreme Court interpreted this section of the Act, stating:

“We interpret section 5 as the Appellate Court, First District, did in Tisoncik v. Szczepankiewicz (1983), 113 Ill. App. 3d 240. In that case, the appellate court held that the language in section 5 providing that a contribution claim may be asserted by a ‘separate action before or after payment’ covers situations where no suit is pending which was initiated by the injured party ***.”

In Christmas v. Hughes (1989), 187 Ill. App. 3d 453, 543 N.E.2d 274, the plaintiff sustained injuries in a collision between a Yellow Cab, driven by Lawrence Williams, and a car driven by Jesse Hughes. She executed a covenant not to sue the Yellow Cab Company, its agents, servants, and employees in exchange for $300,000. Approximately one year later the plaintiff filed suit against Hughes, who immediately filed a third-party complaint for contribution from Williams. The circuit court dismissed the third-party complaint because Williams was protected by plaintiff’s covenant not to sue. The appellate court affirmed, holding the Act did not require a showing of good faith but required Hughes prove the covenant was executed in bad faith. Christmas, 187 Ill. App. 3d at 455, 543 N.E.2d at 276.

The same court approved a similar pretrial settlement in Was-mund. The plaintiff there sustained injuries when the car in which she was a passenger hit a raised manhole. Robert Look was the driver of the car. Prior to suit, the plaintiff’s insurer settled a claim against Look for $7,000 and the plaintiff executed a covenant not to sue him. The plaintiff then filed suit against various parties. One defendant filed a third-party contribution claim against Look. The circuit court dismissed the third-party complaint because of the covenant the plaintiff had executed. Wasmund, 135 Ill. App. 3d at 927-28, 482 N.E.2d at 352.

Roesch’s ripeness argument lacks merit because the Act does not preclude prelitigation settlement agreements. The Christmas and Wasmund courts did not set aside the settlement agreements entered before litigation. Further, section 5 of the Act (Ill. Rev. Stat. 1989, ch. 70, par. 305), as well as Laue, allow Roesch to file contribution claims at any time against any of the defendants subsequently named in a lawsuit. Settlement is a goal of the Act. That goal would be thwarted if an injured party is absolutely required to file a personal injury action before a settlement could occur and a good-faith determination could be made.

Roesch and the intervenors next argue the circuit court should not have ruled on Babb’s motion for a good-faith finding because it denied them due process. Reach All maintains where the injured claimant and the settling tortfeasor institute proceedings to determine whether the settlement was made in good faith for purposes of the Act, parties affected by such a finding are entitled to notice and an opportunity to object. Reach All contends the guardianship proceeding herein was not the proper forum for determining the contribution rights of nonparties because the only evidence before the court was of the occurrence of the injury. There were no affidavits or depositions indicating the cause of the accident and the relative liabilities of potential parties. Reach All claims the court should have reserved ruling on Babb’s motion until Babb filed suit and all parties had a chance to investigate the accident and present factual material to the court. Although a hearing to determine good faith may be informal, Reach All argues no court has ever held such a hearing may be so informal as to eliminate the rights of the affected parties to receive notice and be heard before their rights of contribution against one or more parties are foreclosed.

Illinois courts have not required a separate evidentiary hearing to determine good faith. Instead, the circuit court has discretion to determine what type of hearing is necessary to fully adjudicate the issue of good faith. (Perez v. Espinoza (1985), 137 Ill. App. 3d 762, 765, 484 N.E.2d 1232, 1235; see also Lorenz v. Air Illinois, Inc. (1988), 168 Ill. App. 3d 1060, 1064, 522 N.E.2d 1352, 1355.) The court can decide the good-faith issue on the basis of the arguments of trial counsel alone. (McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 526, 515 N.E.2d 157, 163; see also Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 128, 478 N.E.2d 581, 587.) The court can also base the decision on affidavits, depositions and other discovery materials of record. Baretto, 133 Ill. App. 3d at 128, 478 N.E.2d at 587, citing Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 96, 463 N.E.2d 792, 793.

Roesch’s due-process argument focuses on the issue of necessary parties. Roesch contends the circuit court prematurely considered the good-faith issue because not all necessary parties were present.

“A necessary party is one whose presence in the suit is required for any of three reasons: (1) to protect an interest which the absentee has in the subject matter of the controversy which would be materially affected by a judgment entered in his absence; (2) to reach a decision which will protect the interests of those who are before the court; or (3) to enable the court to make a complete determination of the controversy.” (Flashner Medical Partnership v. Marketing Management, Inc. (1989), 189 Ill. App. 3d 45, 53, 545 N.E.2d 177, 182.)

(See also West Bend Mutual Insurance Co. v. Salemi (1987), 158 Ill. App. 3d 241, 252, 511 N.E.2d 785, 791.) This definition of a “necessary party” assumes the presence of a pending lawsuit. Because the Act allows settlement before a lawsuit has filed, the “necessary party” concept is irrelevant here.

Goforth argues the hearing on the settlement agreement is analogous to a declaratory judgment proceeding. (Banks v. R.D. Werner Co. (1990), 201 Ill. App. 3d 762, 559 N.E.2d 217.) Under this analysis, the court erred in considering Babb’s motion because there was no actual controversy, no discovery, and not all necessary parties were present. We do not consider the analogy to declaratory judgment proceedings relevant or helpful in this action.

The settlement agreement did not deny Roesch or the intervenors due process of law. The fourteenth amendment’s due-process clause protects the interests a person has already acquired in the property. (Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 576, 33 L. Ed. 2d 548, 560, 92 S. Ct. 2701, 2708.) “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Roth, 408 U.S. at 577, 33 L. Ed. 2d at 561, 92 S. Ct. at 2709; see also Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 395 N.E.2d 1376.

The intervenors’ claims to contribution were too speculative, at the time Babb and the City entered the settlement agreement, to constitute property interests protectable by the due-process clause. Although the settlement agreement indicated Babb intended to pursue litigation, no complaint had yet been filed and the court could not be certain a complaint would ever be filed. The court could not have known whom plaintiff would sue if he did file a complaint. Nor was it certain plaintiff would prevail in the personal injury suit. Even if plaintiff won, the court could not have predicted the damages award and the parties from whom plaintiff might recover. The foreclosure of a speculative right of contribution by potential parties to a lawsuit not yet filed does not constitute a denial of due process.

The final argument made in support of the claim that the circuit court prematurely considered the good-faith issue involves discovery. Once a showing of good faith has been made, the burden shifts to the party challenging it to show the settlement was not in good faith or was collusive. (Barreto, 133 Ill. App. 3d at 128, 478 N.E.2d at 588.) Although it bore this burden, Roesch argues it could not engage in discovery and, thus, could not sustain the burden, stating:

“CHAMPAIGN was allowed by the Court to present to the Court a motion on which ROESCH had the burden of proof; CHAMPAIGN was thus allowed to choose the forum and the time to present the motion; it chose circumstances under which ROESCH had no opportunity to gather evidence.”

Because Roesch was unable to engage in discovery, it argues the court made a decision without all relevant facts, and thus failed to consider the totality of the circumstances.

The City contends Roesch has waived this argument because it failed to ask the circuit court for leave to conduct discovery or for a continuance.

The First District Appellate Court addressed such a discovery issue in Snoddy v. Teepak, Inc. (1990), 198 Ill. App. 3d 966, 556 N.E.2d 682. There, the plaintiffs sued Stauffer Chemical Company and PPG Industries, alleging the companies manufactured or supplied one of the chemicals used in the Teepak factory which allegedly injured the plaintiffs. The plaintiffs and Teepak reached a settlement agreement and Teepak sought a hearing on its motion for a good-faith finding. At the hearing, Stauffer and PPG argued discovery was necessary to challenge the good faith of the settlement agreement. The circuit court stated the standard for determining good faith was the absence of tortious conduct. (Snoddy, 198 Ill. App. 3d at 969, 556 N.E.2d at 684.) Stauffer and PPG subsequently filed motions to compel outstanding discovery. The court denied these motions, ruling sufficient evidence had been heard to preclude the need for an evidentiary hearing. The court approved the agreement because there was no evidence of tortious conduct. On review, the appellate court stated:

“[T]he trial court did not abuse its discretion by finding the settlement in good faith, even though there were outstanding discovery requests, and by denying an evidentiary hearing. The question of whether additional materials are necessary to make a finding of good faith is subject to the trial court’s discretion. [Citations.] The trial court refused to compel the requested Stauffer and PPG discovery because its scope was broad and not calculated to develop specific probative evidence, regarding the issue of fraud, collusion, or tortious conduct. The discovery requests were merely a ‘fishing expedition,’ which would have been conducted with the hope of finding something relevant. Accordingly, there is no merit to defendants’ claim that the lack of discovery precludes a finding of good faith.” (Snoddy, 198 Ill. App. 3d at 969, 556 N.E.2d at 684.)

(See also Ruffino v. Hinze (1989), 181 Ill. App. 3d 827, 830 & n.1, 537 N.E.2d 871, 873 & n.1.) Roesch’s discovery argument is thus without merit.

The circuit court properly considered Babb’s petition for partial settlement of his personal injury claim with the City.

The second issue on appeal is whether the circuit court erred in finding good faith. Roesch and the intervenors argue the settlement was not a settlement but a loan-receipt agreement. They urge this court to hold loan-receipt agreements invalid under the Act and contrary to public policy.

“Loan receipt agreements have been found to exist where the benefit received by the plaintiff must be repaid to the defendant upon settlement with or judgment against a third party. (Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 303 N.E.2d 382; Schoonover v. International Harvester Co. (1988), 171 Ill. App. 3d 882, 525 N.E.2d 1041.)” Cleveringa, 192 Ill. App. 3d at 1087, 549 N.E.2d at 881.

Reach All contends the loan-receipt agreement here was not contemplated by the Act because it circumvents the Act in two ways. First, the amount of the settlement would not be set off from any judgment against the nonsettling defendants because Babb must repay the settlement money to the City. As noted in Reach All’s brief:

“Although in this case $50,000 was purportedly paid ‘without recourse,’ the order below required Babb to immediately set aside $35,000 to finance further litigation (which would benefit the City because its worker’s [sic] compensation lien was not waived) and also purchased Babb’s agreement to forego his right to demand that the City share in any further recovery expenses. Specifically, the City, by statute, would be required to pay 25 percent of any recovery on its worker’s [sic] compensation lien to Babb’s attorney. (Ill. Rev. Stat. ch. 48, par. 138.5(b). See, e.g., Langley v. H.K. Ferguson Co., 186 Ill. App. 3d 1036, 542 N.E.2d 1200 (1989).) Under the agreement, Babb’s attorneys are required to forego that recovery, thus looking only to Babb for recovery of their fees, a potential savings to the City of as much as $600,000 if it recovers its full lien at a claimed value of $2.4 million.”

Second, Reach All contends the agreement circumvents the Act because under its terms the City would, in essence, be maintaining an action for contribution through the loan-repayment scheme.

Reach All cites two cases in support of its arguments, In re Waverly Accident of February 22-21, 1978 (M.D. Tenn. 1979), 502 F. Supp. 1, and Moore v. Subaru of America (10th Cir. 1989), 891 F.2d 1445. A review of both cases reveals neither is helpful. The agreement in In re Waverly Accident was quite different from that in this case. There, the agreement required plaintiff relinquish a great measure of control over settlement with other respondents in order to obtain the settlor’s guaranty of recovery. The Moore case is distinguishable because Oklahoma law clearly does not recognize loan-receipt agreements as valid loan transactions. (See Moore, 891 F.2d at 1450.) The Illinois Supreme Court has expressly sanctioned loan-receipt agreements. See Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 361-64, 303 N.E.2d 382, 385-87 (although there contemplating the efficacy of such agreements in situations in which a concurrent tortfeasor may escape liability and judgment by loaning funds to a plaintiff).

Goforth argues although the Illinois Supreme Court sanctioned loan-receipt agreements in the early 1970’s (Reese, 55 Ill. 2d at 364, 303 N.E.2d at 387; Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill. 2d 445, 322 N.E.2d 58; Gatto v. Walgreen Drug Co. (1975), 61 Ill. 2d 513, 337 N.E.2d 23), such agreements became invalid after the court’s decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, and enactment of the Act. Goforth claims dicta in Henry v. St. John’s Hospital (1990), 138 Ill. 2d 533, 563 N.E.2d 410, cert. denied (1991), 499 U.S. 976, 113 L. Ed. 2d 720, 111 S. Ct. 1623, supports its argument:

“Sections 2(c) and 2(d) [(Ill. Rev. Stat. 1987, ch. 70, pars. 302(c),(d))] explain the only way a defendant can escape joint and several liability under the Act — a release, or covenant not to sue or not to enforce judgment of that tortfeasor’s liability, which a plaintiff gives in good faith.” (Henry, 138 Ill. 2d at 542, 563 N.E.2d at 414-15.)

If loan-receipt agreements were still valid, Goforth asserts the court would have included them in its list of ways a defendant can escape joint and several liability. Henry never mentions loan-receipt agreements.

Roesch objects to the City, rather than Babb, receiving the first $2,750,000 Babb recovers from third parties, without any liability for its own misconduct. According to Roesch, the settlement agreement leaves the City in a better financial position than it would have been in without such an agreement. Under the terms of the agreement, the City is funding litigation against what otherwise would have been joint tortfeasors. And finally, Roesch maintains the loan-receipt agreement frustrates the purpose of the Act, which is to apportion liability based on fault.

The City contends there was no loan-receipt agreement because the agreement contained no absolute payback requirement. Instead, the agreement allows Babb to keep $50,000. Further, there is no requirement Babb file a lawsuit against anyone. If the agreement was a loan-receipt agreement, the City argues it was made in good faith and should be accepted, as have other loan-receipt agreements as shown by the opinions of other Illinois courts. Reese did not raise or address good faith, though the court approved the loan-receipt agreement. The court again approved a loan-receipt agreement in Popovich v. Ram Pipe & Supply Co. (1980), 82 Ill. 2d 203, 412 N.E.2d 518, except to the extent the agreement allowed double recovery.

“[A] loan receipt agreement between a settling defendant and the plaintiff will be given effect as a loan agreement only to the extent that the money advanced thereunder is to be repaid by plaintiff to the defendant. (82 Ill. 2d at 210.) Whatever amount of the loan would be forgiven if the loan agreement were carried out according to its literal terms, however, is treated as an ordinary, unconditional payment for a covenant not to sue and must be set off against the verdict as a partial satisfaction of judgment. (82 Ill. 2d at 210.)” Schoonover v. International Harvester Co. (1988), 171 Ill. App. 3d 882, 885, 525 N.E.2d 1041, 1043.

See also Greco v. Coleman (1988), 176 Ill. App. 3d 394, 399-400, 531 N.E.2d 46, 50.

In the absence of a supreme court decision or statute to the contrary, the court’s decision in Reese continues as the law of this State: loan-receipt agreements are valid. Passage of the Act has not rendered such agreements invalid as against public policy. The agreement in this case was valid and the court did not err in entering a finding of good faith. Roesch’s presence at the hearing on good faith rendered the proceedings adversarial. At this hearing, the court fully considered the agreement. There was no evidence the guardianship was filed to circumvent the Act and no evidence indicating wrongful or tortious conduct in the making of the settlement agreement. An advantageous settlement is a far cry from a collusive one.

Roesch next argues the settlement agreement was not in good faith because it does not reduce litigation. It sets aside $35,000 to fund future litigation and eliminates the incentive to settle with other defendants. Roesch also contends the agreement gives Babb’s power to decide to settle with other defendants to the City.

The agreement does, however, reduce litigation, as it removes the City from the list of defendants that can be named in a lawsuit, and precludes litigation by such defendants seeking contribution from the City.

“A settlement agreement may be considered made in good faith when it is based on consideration (Doellman v. Warner & Swasey Co. (1986), 147 Ill. App. 3d 842, 849-50; see also Ballweg, 114 Ill. 2d at 122) and when no tortious or wrongful conduct on the part of the settling party has been shown. (Jachera v. Blake-Lamb Funeral Homes, Inc. (1989), 189 Ill. App. 3d 281, 286.)” (Pritchard, 199 Ill. App. 3d at 997, 557 N.E.2d at 992.)

“[T]he good faith of a settlement is not judged by the obstacles it creates for the nonsettling tortfeasor.” (Cleveringa, 192 Ill. App. 3d at 1086, 549 N.E.2d at 880.) Further, a settlement agreement is not made in bad faith even if its purpose is to eliminate third-party litigation. Dixon v. Northwestern Publishing Co. (1988), 166 Ill. App. 3d 745, 752, 520 N.E.2d 932, 937.

Trial courts have the discretion to determine whether a settlement has been made in good faith. A Federal district court, in attempting to discern some guiding principles from Illinois cases as to good-faith settlements, noted three important considerations: the trial court should determine whether the settlement is within the reasonable range of the settlor’s fair share; the trial judge should draw on personal experience since a fact question is presented on good faith; and the trial court should be guided by a public policy favoring settlement. Arkwright Mutual Insurance Co. v. Garrett & West, Inc. (N.D. Ill. 1991), 782 F. Supp. 376.

In this case, an experienced trial judge approved the settlement agreement and made a separate finding of good faith only after securing a report from the guardian ad litem for Babb, permitting Roesch to intervene, reviewing extensive briefing and conducting a hearing. The circuit court did not err in entering the finding of good faith. The order of the Champaign County circuit court is affirmed.

Affirmed.

STEIGMANN and LUND, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LaPORTA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT HOVENEC, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—2543
    Opinion filed July 6, 1992.
    Michael J. Pelletier and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Brian Clauss, and Deborah Alexander, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Defendant was charged with armed robbery. Following a bench trial, the court convicted him of robbery and sentenced him to three years’ imprisonment. On appeal, defendant contends that: (1) since the trial judge concluded that no force was used until after the taking, his robbery conviction must be reversed; (2) the trial judge erred in failing to appoint new counsel to investigate his claim of ineffective assistance of counsel; and (3) he did not make a knowing and intelligent waiver of his right to counsel at his post-trial hearing.

Complainant Shukri Judeh testified that he owned a liquor store at 5053 South Ashland Avenue in Chicago. On March 24, 1990, he was outside the store while his son Joseph was working inside. Defendant and Patrick Freeman walked into the store, and Freeman later walked out with a paper bag. While defendant was still inside the store, Joseph called his father into the store and asked if defendant had paid him any money. Complainant testified that he told his son “No.” When defendant put a wine bottle into his pocket, complainant tried to take it from defendant. Defendant pulled a knife and swung it at complainant’s head, then backed up to the door as complainant swung his cane at defendant. Defendant walked to his friend’s truck as complainant tried to stop defendant, who was still swinging the knife. Complainant followed defendant in his car, then alerted police, who arrested defendant and took the knife and the stolen bottle of wine.

Joseph Judeh testified that he was working at the register when defendant and Freeman entered the store. Freeman purchased alcoholic beverages and left. Defendant had a bottle of wine and said that he had paid Joseph’s father, who was outside. Joseph called to his father, who came inside, and Joseph asked if defendant had paid for the wine. Complainant said that defendant had not paid for the wine and therefore he attempted to grab the wine bottle from defendant, who pulled out a knife and swung it above his head. Defendant backed out the door and left followed by complainant.

Chicago police officer Thomas Coughlin testified that complainant told him that he had been robbed at knifepoint and had followed the offender. Complainant then took him to a house and identified defendant, who ran into the house. The officer apprehended defendant in the hallway and recovered a hunting knife, which defendant had removed from a sheath, and a bottle of wine, which the complainant identified as the proceeds of the robbery.

The trial court originally convicted defendant of armed robbery. However, at the hearing on defendant’s pro se post-trial motion, the court made the following statement:

“However, the Court has considered and reconsidered the evidence, and even though there’s no question but that you employed a knife in the store, to give you every benefit of the doubt, the knife was employed not so much to effect the theft or the robbery of the merchandise, but to effect an escape, and so to give you every benefit of the doubt, we’re going to vacate the finding of armed robbery and find you guilty of robbery.”

A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force. (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 1.) A person commits armed robbery when he or she violates section 18 — 1 while he or she carries on or about his or her person, or is otherwise armed with, a dangerous weapon. Ill. Rev. Stat. 1989, ch. 38, par. 18-2.

Defendant contends that in his case no force was used until after the robbery and therefore his conviction for robbery must be reversed. He argues that the defense testimony and an affidavit attached to his post-trial motion establish that he did not take the bottle of wine but instead he attempted to buy it with food stamps.

Defendant emphasizes that a robber must use violence or fear of violence as the means to take property in control of the victim, and where the evidence does not show beyond a reasonable doubt that the violence was exerted as a means to take the property, a conviction for robbery or armed robbery must be reversed. People v. Tiller (1982), 94 Ill. 2d 303, 316, 447 N.E.2d 174.

Once a defendant has been convicted, a reviewing court should evaluate the evidence in the light most favorable to the prosecution, and the relevant inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Tye (1990), 141 Ill. 2d 1, 13-14, 565 N.E.2d 931.) We find that the trial court’s remarks reducing the conviction from armed robbery to robbery indicate the court believed force had been used in complainant’s store. The evidence clearly established that defendant used force and the threat of force to obtain the wine and that complainant made a strenuous effort inside as well as outside his store to prevent defendant from taking the bottle of wine. The trial judge’s comment at defendant’s sentencing focused on the fact that defendant may not have used a weapon for the actual robbery. But this cannot be interpreted as a factual finding by the judge that no “force” was used. Such a finding would have been inconsistent with the court’s robbery finding.

In People v. Ortiz (1987), 156 Ill. App. 3d 170, 509 N.E.2d 633, the court rejected the argument that the force used must have taken place before or contemporaneously with the taking of the property to sustain a robbery conviction. (Ortiz, 156 Ill. App. 3d at 174-75.) A robbery is complete when property is moved from its customary location with the intent to deprive the owner of the property even though escape with the property is thwarted, and while the initial taking may be accomplished without force, the offense is robbery if the departure is accomplished by the use of force. People v. Ditto (1981), 98 Ill. App. 3d 36, 38, 424 N.E.2d 3.

We find that evidence established defendant used force when he put the bottle of wine in his pocket, thwarted complainant’s efforts to retrieve the wine and then waved his knife around in his effort to make good his escape. We hold that defendant was proved guilty of robbery beyond a reasonable doubt.

Second, defendant contends that he was denied effective assistance of counsel because the trial judge failed to either appoint new counsel at his pro se post-trial motion hearing or inquire further of defendant with regard to his allegations. Defendant contends that he was not even present at the post-trial hearing where the judge considered his pro se motion and then denied the motion.

The record establishes that defendant was not present. At the hearing the trial judge spoke with defendant’s counsel and reviewed defendant’s motion, stating: “The allegations in the petition are that the Public Defender assigned to him, Patrick Moriarity knows a John Champain, but they have it here as Champlain, with him [sic] the petitioner had some difficulty in 1982.” Defense counsel notes for the record that Champain used to be a public defender. The court replied: “That is what it says here. And that you know him, and so the petitioner is assuming that there may be some conflict of interest because you know him. He also complains of no visits at the jail, and he hasn’t been provided with copies of documents and access, and he needs better access to the law library at the jail than he’s been getting. These are his reasons for requesting the appointment of a lawyer other than the Public Defender. This motion is denied.”

Defendant’s handwritten motion contends that he was represented by Champain in 1982 and that Champain was allegedly involved in improprieties with regard to defendant’s court proceeding. Defendant contended that his current public defender, Moriarity, admitted that he knew Champain and spoke well of Champain. Based on these facts, defendant contended that “there may be a conflict of interest.” Defendant contends on appeal that the judge erred when he failed to inquire into this potential conflict of interest.

The court in People v. Jackson (1985), 131 Ill. App. 3d 128, 474 N.E.2d 466, relying on People v. Krankel (1984), 102 Ill. 2d 181, 189, 464 N.E.2d 1045, and People v. Johnson (1981), 98 Ill. App. 3d 228, 424 N.E.2d 610, explained how a court should handle a defendant’s post-trial motion claiming ineffective assistance of counsel:

“The trial court should examine the factual matters underlying the defendant’s claim. *** If the claim goes to matters of trial tactics or strategy, the defendant’s claim should be found spurious and his request for new counsel denied. This was the case in Johnson. If, however, the factual matters show possible neglect of the defendant’s case, the court should appoint new counsel who can undertake an independent evaluation of the defendant’s claim and present the matter to the court from a detached, yet adversarial, position. This was the case in Krankel, where defendant alleged that his attorney failed to interview an alibi witness.” Jackson, 131 Ill. App. 3d at 139.

Though the opinion was published after defendant’s trial in this case, the Illinois Supreme Court approved of the Jackson court’s interpretation of Krankel in People v. Nitz (1991), 143 Ill. 2d 82, 572 N.E.2d 895, and more recently in People v. Williams (1991), 147 Ill. 2d 173, 250-52.

In Williams the court stated that a pro se motion for a new trial alleging ineffective assistance of counsel does not per se require appointment of new counsel. The court found that “[o]nly if the allegations show possible neglect of the case *** should new counsel be appointed.” Williams, 147 Ill. 2d at 251.

We find that, under the standards reaffirmed in Williams, the trial judge had no facts before him to indicated a “possible neglect of the case” that would have warranted appointment of new counsel to explore defendant’s allegations.

Finally we consider defendant’s contention that he did not make a knowing and intelligent waiver of counsel at his post-trial hearing and therefore his case should be remanded for a new hearing. Under Supreme Court Rule 401(a), waiver of counsel cannot occur until a court informs the defendant of and determines that he understands: (1) the nature of the charge; (2) the minimum and maximum sentence prescribed by law, including when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and (3) that he has the right to counsel and, if indigent, to have counsel appointed for him by the court. People v. Reed (1987), 160 Ill. App. 3d 606, 609, 513 N.E.2d 1193.

In defendant’s motion for a rehearing or new trial he proceeded as his own counsel. His motion begins: “I, defendant Robert Hovenec, Sr., acting as my own attorney, as is my right under the Constitution of the United States ***.” In a post-trial hearing, the following colloquy occurred:

“THE COURT: We have a motion for rehearing as to Robert Hovenec. Here’s a copy for the State and defense. *** Is Mr. Hovenec representing himself now, Mr. Moriarity? That’s what he says in his petition.
MR. MORIARITY: Your Honor, I’m not totally correct in what procedures I have to follow, but I know that I have filed a post-trial motion in the matter. I have also prepared and had him sign a notice of appeal. I do not know to what degree else I should be involved in it. *** I’m not sure that other forms will be lacking in my participation in the matter, but at Mr. Hovenec’s request—
THE COURT: Good afternoon, Mr. Hovenec. Mr. Hovenec, according to your most recent petition here, you are representing yourself now?
DEFENDANT HOVENEC: Well I wasn’t represented all through the trial.
THE COURT: Wait. No. Just answer the question. *** You’re representing yourself, is that right?
DEFENDANT HOVENEC: Yes, sir.
THE COURT: Well, we’re at the sentencing stage here, so if you’re representing yourself, we are going to give you and the State a copy of the pre-sentence report. You understand that this is the sentencing stage before we get to your motion here, and that you’ve been found guilty of armed robbery and that the least sentence is six years and the maximum is thirty. And you have a right to an attorney.
DEFENDANT HOVENEC: I’d like to have one that’s competent.
THE COURT: Just a minute. And you do not want the services of any public defender. Is that right? Is that what you have told us?
DEFENDANT HOVENEC: Yes, sir.
THE COURT: All right. So you’re choosing to represent yourself.
DEFENDANT HOVENEC: Yes, sir.”

We find that the requirements of Supreme Court Rule 401(a) as articulated in Reed were satisfied and therefore reject defendant’s contention that he did not make a knowing and intelligent waiver of his right to counsel. Therefore, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


author: JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL HOBBS, Defendant-Appellant.
    First District (1st Division)
    Nos. 1—87—3476 through 1—87—3478 cons.
    Opinion filed July 6, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Shelton 0. Green, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (David Stabrawa and Caren J. Armbrust, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant Michael Hobbs was convicted of burglary and sentenced to three years’ probation, with the first six months in Cook County Department of Corrections. Defendant argues on appeal that: (1) he was denied his constitutional right to a fair trial; (2) the prosecutor’s misstatement of the law denied him a fair trial; and (3) the trial court’s ruling denied his constitutional right to a fair trial.

On December 20, 1986, defendant Michael Hobbs and his accomplices (Roosevelt Martin, James Ward and Shawn Hobbs) were arrested after fleeing from property of the Illinois Central Gulf Railroad while being pursued by Officers Soukup and Krull. Officer Soukup testified that on December 20, 1986, he was employed as a railroad policeman with the Illinois Central Gulf Railroad at 31st Street and Da-men in Chicago. He testified that he was responsible for protecting the sealed trailers located on the property.

Soukup testified that, as he left the railroad yard traveling southbound on Wood Street, he observed two vans, one blue and the other white, travelling in front of his car. The blue van pulled over to the left side of Wood Street and the white van pulled over to the right side of Wood Street. Soukup stated that he travelled one block past the vans and wrote down the license plate number of the blue van, parked his car, then surveyed the vans through his binoculars. He stated that the area was well lighted and that there were no obstructions blocking his view. Soukup stated that he observed two black male passengers in the blue van and two black male passengers in the white van. Soukup radioed for assistance, and Officer Krull responded to the call.

After Officer Krull- arrived at the scene, he and Officer Soukup continued to maintain surveillance of the two vans for about 25 minutes. Soukup testified that he observed one passenger (later identified as Roosevelt Martin) exit the blue van from the driver’s side and walk north toward the railroad tracks, while the second occupant exited the white van, walked north and met the driver of the blue van. They then walked toward the railroad track. Soukup drove his car one block from where defendants were, climbed an embankment and followed after the defendants as they walked down the tracks. Officer Krull remained in the car and kept surveillance of the offenders who remained in the blue van.

Soukup testified that he later noticed the men on property adjacent to the railroad’s property pulling apart a chain link fence. Soukup stated that accomplice James Ward climbed through the hole and walked down an embankment onto the railroad’s trailer facility. Hobbs and Martin remained by the fence. Soukup testified that he viewed Ward through his binoculars break the seal on five trailers, enter inside each one for a few seconds, then exit and close the rear door.

Soukup testified that after Ward entered a fifth trailer, Hobbs and Martin approached the trailer and the three unloaded boxed merchandise from one trailer and carried it to the fence where the hole had been created. The men made about six trips from the trailer to the fence. Soukup stated that Hobbs then began walking back towards the van parked on Wood Street. Martin and Ward remained stationed at the fence with the merchandise. Soukup stated that he then notified Krull that Hobbs was headed back toward the van, and he also notified the Chicago police department.

Soukup testified that he remained on the elevated tracks and continued to monitor Hobbs through binoculars. Hobbs walked to the blue van, which was parked on Wood Street, opened the door, and then he and the passenger walked over to the white van. Soukup stated that the passenger was much shorter than Hobbs and appeared to be a juvenile. Hobbs then started the van, turned on his headlights as Officer Krull drove his vehicle forward and Soukup immediately approached the scene from the rear of the white van.

Soukup testified that he learned the younger man’s name was Shawn Hobbs, the brother of Michael Hobbs. Soukup stated that Shawn Hobbs entered the white van and sat in the back seat, while Michael Hobbs sat in the driver’s seat. Both were arrested. A Chicago police officer summoned Detective Dwyer, who answered the call and was advised by Soukup that the men had been arrested for burglary and that there were two additional subjects in the area.

Detective Dwyer remained at the scene with Hobbs, while Officers Soukup and Krull drove back to the area of the railroad property where the merchandise had been removed from the trailers. Soukup stated that he observed the other two men there, and the merchandise was stored near the embankment by the hole in the fence. As Officers Soukup and Krull approached the area, Ward and Martin fled. Soukup and Krull left their vehicle and pursued them on foot. Ward ran toward the van, but Martin ran westbound on the railroad tracks. They continued to pursue Ward, but not Martin. Ward later collapsed in an alley, was arrested and transported to the station. An assisting officer apprehended Martin.

Officer Soukup returned to the area where the merchandise was stacked. He stated that a hole large enough for three adult persons to fit through appeared in the fence separating the Illinois Motor Service parking lot from the Illinois Central Gulf Railroad property. Seals from the trailers were also lying on the ground. Soukup stated that photographs were taken of the merchandise before it was taken back to the original trailers. Soukup testified that approximately 35 boxes were removed from the trailers valued at $4,000. He stated that he never recovered any tools from the scene that would have been used to break the seal on the trailers.

Detective Dwyer testified that about 3 a.m. on December 20, 1986, he answered a call for assistance and drove to Archer and Wood Street. He pulled his car up to the white van, where the railroad police were standing with two men. He stated that a second van was across the street facing southward. Dwyer stated that he was advised that the men were being held for burglary and was asked to hold them while Officers Krull and Soukup went back onto the railroad property. Dwyer stated that he waited with the two men until other officers arrived. He then turned the men over to the other officers because he was outside his area. Dwyer identified Michael Hobbs in open court.

Officer Rogers testified that about 2:50 a.m. on December 20, 1986, he and his partner answered a call for assistance at Archer and Wood Street in Chicago. Rogers stated that when they arrived at the scene, Detective Dwyer was standing near a white van with two men in custody. Rogers identified Michael Hobbs in open court. Rogers stated that he handcuffed them and placed Shawn Hobbs in the back seat of their vehicle and Michael Hobbs in another car that arrived on the scene. Rogers left on foot to assist Officers Krull and Soukup, while his partner and a second officer remained with the Hobbs brothers.

Rogers stated that, as they approached the railroad tracks, he observed Martin at the top of the railroad tracks who began to run. Rogers pursued him on foot, and Martin was eventually apprehended. Rogers identified Martin in open court.

Wendy Harris testified that about 11 p.m. on December 19, 1986, she and Ward left her home in his blue van headed for a party at 57th Street and Stewart. Wendy stated that they arrived at the party about 12 a.m. where they saw Michael Hobbs collecting money at the door. They left the party about 12:30 p.m. and headed for White Castle at 31st Street and Ashland. Wendy testified that on their way they stopped at 51st Street and Laflin, where they met Martin and his friend Betty. Wendy stated that after leaving White Castle the four drove back to the party.

Wendy claimed that en route the van broke down at Ashland and Archer Street. Ward and Martin exited the van and, after inspecting it, they pushed the van around the corner to Wood Street. The four then walked back to White Castle. Harris stated that Ward asked several persons for a jump, but no one assisted them. Ward then made a telephone call home to ask for help. Wendy stated that the four then walked back to the van, where they remained 20 minutes, and after no one came, Ward and Martin walked Wendy and Betty to a bus stop at Ashland. Wendy stated that this occurred about 2:20 a.m., and they did not see Martin and Ward after that time.

Sandra Ward testified that about 12:30 a.m. on December 20, 1986, she was preparing for bed when she received a telephone call from Ward. After receiving the call, Sandra walked next door to Michael Hobbs’ home, told him that Ward and Martin were stranded, and Hobbs placed a car battery in his white van and then left. Sandra testified that she received another telephone call about 2 a.m. from Hobbs.

Michael Hobbs testified that about 12 a.m. on December 20, 1986, he was at home assisting his brother in collecting money at a party. He stated that Ward and Wendy came to the party and left about 12:30 a.m. Hobbs claimed that he told Ward to bring Martin back to the party. He testified that later that morning he had a conversation with Sandra Ward, then went to her home to get a battery for Ward. He claimed that he placed the battery in his van, then he and someone named Woody left the party.

When he arrived at Archer and Wood Street, Ward’s van was facing north and no one was inside. Hobbs claimed that he walked over to the van, looked inside and found no one there. He then changed the battery. He testified that after he changed the battery he walked to a gas station on Damen and Archer to make a telephone call to Sandra. He stated that he told Sandra to advise Ward that the battery had been changed, then drove back to the van to get Shawn Hobbs.

Hobbs testified that as he and Shawn drove away from the van, a police officer stopped them at the corner of Archer and Wood Street. He stated that he saw Martin walk toward the van at that time, and after the police shouted “Hold it, police,” Ward ran and Martin threw his arms out. Hobbs claimed that he never went onto the property of the Illinois Central Gulf Railroad tracks, nor did he climb through any hole in the fence on that embankment. He also claimed that he never removed any property from the trailers in the yard.

Hobbs stated that the person he was with that night was no relation to him. On cross-examination he was asked “To your knowledge the police didn’t know who Woody was or his name either, did they?” Hobbs responded that he did not know.

Roosevelt Martin testified that about 12:30 a.m. on December 20, 1986, he and his girl friend Betty left his home headed for a party. He stated that Ward and his girl friend Wendy picked them up in Ward’s van and drove to the party. On their way to the party, they stopped at White Castle and the van broke down at Archer and Wood Street. He stated that he and Ward unsuccessfully attempted to start the van and eventually pushed it onto Wood Street. All four then walked back to White Castle, where Ward asked several customers for a jump. He claimed that it took about 15 minutes to walk to White Castle, that he called Michael Hobbs from there, and that he and Ward walked back to the van.

Martin stated that they waited at the van about 15 minutes. They then walked the two women to a bus stop at Ashland and Archer. Martin testified that after leaving the women, they then walked back toward the van and a police officer placed a gun in his face and told him to put his hands in the air.

Martin denied ever being on the Illinois Central Gulf Railroad property, climbing through any fence, and carrying any boxes from the trailers.

On cross-examination Martin stated that there was a gas station not far from where the van broke down, but that he did not push the van into that gas station.

John Isorio testified that about 1:15 a.m. on December 20, 1986, he was inside White Castle when Ward approached him and requested a jump for his vehicle. Isorio declined to give Ward a jump, but he did give him the telephone number of a friend who was a mechanic. Isorio stated that he had never seen Ward before that morning, nor did he ever see the vehicle.

Officer Krull testified that on December 20, 1986, he was employed by the Illinois Central Gulf Railroad as a patrolman on the 11 p.m. to 7 a.m. shift. About 1 a.m. that morning he received a radio communication from Officer Soukup and went to Archer and Wood Street to survey two vans. Krull stated that both vans were facing south and were occupied with two persons in each one. Krull testified that he used binoculars to enhance his view. Krull stated that about 10 minutes after he arrived, one of the occupants exited the blue van. He stated that there were no women present in the van.

Krull testified that two individuals left the white van, and one person left the blue van and walked north on Wood Street. Officer Soukup followed the three while Krull kept the vans under surveillance. Krull eventually received a telephone communication from Officer Soukup telling him that one of the men was returning to the van. He stated that when the man returned to the van a second man exited the blue van and the two walked over to the white van.

Krull testified that he then drove his vehicle and blocked the van, and exited as Officer Soukup came to assist him. Krull stated that the defendants were arrested, told him that their names were Michael and Shawn Hobbs, and that he turned them over to Detective Dwyer.

Krull and Soukup then drove down Wood Street to the railroad embankment, where he saw Martin and Ward crouching down over boxes. As the officers drove up, the defendants ran. The defendants were apprehended, arrested and placed in the custody of the Chicago police department. Krull testified that he returned to the area where the defendants were first observed and inspected the holes in the south and north fences. Krull described the holes in the fence as “man-size.” He stated that he never saw anyone cut a hole in the fence, nor did he see anyone remove boxes from the railroad yard. He did, however, identify Ward and Martin at trial.

Defendant Michael Hobbs argues that certain actions by the assistant State’s Attorney denied him a fair trial. He first contends that the State ignored and violated the court’s rulings and implied to the jury that it was being prevented from introducing important evidence.

During redirect examination of Charles Soukup, the State elicited answers from Soukup that would have revealed to the jury that prior burglaries had occurred at the railroad property. During a sidebar the court instructed the State not to ask questions that concerned any burglaries other than the one for which defendant was on trial. After admonishment by the court, the prosecutor asked three other questions of the witnesses which defendant challenges; these were:

“Q. Without talking about any event that might have happened prior to December 20th ***.***
Q. Well, without telling us about the prior events of December 20th ***.***
Q. They [the fences] had been cut on the prior occasion, right?”

Defendant also asserts that the State made reference to the prior burglaries during closing argument.

We first note that defendant did not raise this issue in a post-trial motion and, therefore, has waived it on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Assuming it has not been waived, we do not find that the State violated the trial court’s ruling. Prosecutorial misconduct occurs when the State ignores a trial court’s ruling and continues the line of questioning ruled on by the court. (People v. Weinger (1981), 101 Ill. App. 3d 857, 428 N.E.2d 924.) The trial court’s ruling here admonished the State to refrain from eliciting testimony that prior burglaries had occurred. The State’s questions to Soukup were aimed at eliciting the conditions of the fence prior to the burglary for which defendant was on trial. Officer Soukup’s testimony established only that there had been prior damage to the fence, not that defendant was the offender, nor that other burglaries had occurred at the Illinois Central Gulf Railroad.

Defendant also contends that the State committed reversible error by implying in its questions that he had previously been involved in the burglary of the railroad property and used the same exact point of entry on this particular occasion. The statement which defendant bases his allegation on is:

“Q. [Assistant State’s Attorney]: *** There was a hole from a previous occasion in the exact location of the south fence that you saw defendants going through on this particular occasion [right]?”

Defendant asserts that the reasonable implication to be drawn from the statement was that defendant must have committed the prior burglary and the one for which he was on trial.

While it is improper for a prosecutor to proffer evidence of other crimes than the one for which defendant is charged, a prosecutor can argue any logical inferences that can be drawn from the evidence. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) The question asked of defendant by the prosecutor was intended to show that the fence had previously been cut and to support the State’s theory of how defendant was able to enter the property without bolt cutters. The comments did not state that defendant had committed a prior burglary, nor was the word “burglary” ever used. Therefore, the prosecutor did not inform the jury of other burglaries or imply that defendant was guilty of other crimes.

Defendant further argues that the State proffered a prejudicial statement that a defense witness refused to testify and that the witness was fictitious.

In its closing argument the State asserted:

“The fictitious Betty *** why, because that is all the defense can go to because even Wendy and the fictitious Betty who wouldn’t come in and testify ***.”

Defendant maintains that this comment created the presumption in the jury’s mind that Betty did not exist, when the State had no evidence of that fact.

Where a defendant injects into the case the name of an alibi witness and then fails to call the witness, the State may legitimately comment on the lack of such evidence although it may not be relied upon as proof of the charge. People v. Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d 247.

Defendant finally assigns error to a comment made by the State during opening statement when the State asserted that Shawn Hobbs was the fourth defendant in this case. Defendant maintains that he denied that Shawn Hobbs was his nephew or brother, and that the fourth person in the automobile with him on the morning of the incident was a friend named Woody. He contends that the only evidence that the fourth person was named Shawn Hobbs came from Detective Dwyer and Officer Soukup. Defendant argues that the lack of evidence in the record that Shawn Hobbs was related to him, and that the State’s questioning of him, implied to the jury that he had brought a juvenile into a criminal activity.

Where argument is based on facts in evidence, and inferences which may be drawn therefrom, argument is proper. (People v. Pryor (1988), 170 Ill. App. 3d 262, 524 N.E.2d 700.) Here, Detective Dwyer and Officer Soukup testified that the younger person arrested at the scene was named Shawn Hobbs. Although defendant Michael Hobbs stated that the person accompanying him was named “Woody,” throughout his testimony Hobbs referred to the person as Shawn Hobbs. While there was no express evidence that Michael and Shawn were related, under the circumstances it was reasonable to infer that they were. Shawn accompanied Michael from the party at Michael’s home to the location of the van and spent about two hours with him. We find that a reasonable inference to be drawn from the evidence was that Michael and Shawn Hobbs were related.

However, even if the prosecutor’s comments were improper, absent deliberate misconduct on the part of the prosecutor, the error was not grounds for reversal unless it resulted in substantial prejudice to defendant. (People v. Kelly (1985), 134 Ill. App. 3d 732, 480 N.E.2d 1343.) We cannot say that the prosecutor’s identification of Shawn Hobbs as a relative of Michael Hobbs resulted in substantial prejudice to defendant.

Defendant also argues that he is entitled to a new trial because the prosecutor misstated the law and made arguments contrary to the evidence. Specifically, he asserts that during closing argument the State, in referring to Michael Hobbs, advised the jury that “if the name is Hobbs, then you can presume there’s a relation.” Defendant cites to People v. Lawler (1990), 194 Ill. App. 3d 547, 551 N.E.2d 799, in support of his argument.

In Lawler, the defendant was charged with aggravated criminal sexual assault. The prosecutor asserted that because of defendant’s prior conviction, “ ‘then the law presumes that he is willing to lie.’ ” (194 Ill. App. 3d at 559.) The court reversed the conviction because the prosecutor’s statement clearly misstated the law, and the court was not able to determine what effect the prejudicial statement had on defendant’s conviction.

Lawler is distinguishable from the instant case. Here, the statement by the prosecutor simply identified Shawn Hobbs as a relative and accomplice of Michael Hobbs, a reasonable inference that could be drawn from the evidence. The prosecutor’s comments were not blatant misstatements of the law such as those in Lawler, nor can we say that the statement was a factor in defendant’s conviction for burglary.

Defendant finally argues that the trial court made incorrect rulings which denied him a fair trial. Specifically, he points to the court’s failure to allow defendant to question the State’s witness regarding the absence of a confession.

In reviewing the record in this case, it is clear that defense counsel attempted to elicit testimony from Officer Soukup that he did not obtain a confession from defendant. However, defendant did not, either at trial or in his post-trial motion, raise any issue related to the trial court’s restriction of cross-examination. Failure to raise the issue of improper restriction of cross-examination in defendant’s post-trial motion constitutes waiver. (People v. Graves (1986), 142 Ill. App. 3d 885, 492 N.E.2d 517.) Further, defendant offers no authority for the proposition that the failure of the State to obtain a confession is proper impeachment. Thus, we must conclude that even if the question was improper, defendant’s failure to raise a timely objection constitutes waiver.

Defendant also maintains that the trial court erred in allowing Officer Rogers to testify to information contained in reports prepared by other officers. In determining whether an accused has been prejudiced by the admission of evidence that was improper, so as to require a reversal of the judgment, a reviewing court will look to the entire record to see if the admitted evidence could have reasonably affected the verdict. (People v. Hoddenbach (1983), 116 Ill. App. 3d 57, 452 N.E.2d 32.) Where a different result would not have occurred in the absence of the admitted evidence, a reviewing court will not disturb the judgment. People v. Graves (1986), 142 Ill. App. 3d 885, 492 N.E.2d 517.

Here, Officer Soukup gave credible testimony of how he observed defendant and two others through binoculars remove items from the trailer, carry the items through a hole in the fence, stack them and walk back to the van. Officer Soukup also identified defendant in court. Officer Krull testified that, when he arrived, defendant Hobbs was in custody and that Officer Soukup advised him that defendant was being held for burglary. In light of this evidence, any error that might have resulted by Officer Rogers’ testimony to the information contained in the police reports was harmless error.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.