author: JUSTICE COUSINS

text:
    ALFREDO GARCIA, Adm’r of the Estate of Victoria Garcia, Deceased, Plaintiff-Appellee, v. EDGEWATER HOSPITAL, Defendant-Appellant and Third-Party Plaintiff-Appellant (Shiley, Inc., Third-Party Defendant-Appellee).
    First District (5th Division)
    No. 1—90—3663
    Opinion filed March 26,1993.
    Rehearing denied May 19, 1993.

      Lord, Bissell & Brook, of Chicago (Harold L. Jacobson, Hugh C. Griffin, David C. Hall, and Sandra K. Macauley, of counsel), for appellant.
    Carr & O’Rourke Associates, of Chicago (Donald A. Carr and Roland P. Ernst, of counsel), for appellee Alfredo Garcia.
    Mayer, Brown & Platt, of Chicago (Robert F. Finke, Michele Odorizzi, Priscilla P. Weaver, and Kurt D. Williams, of counsel), for appellee Shiley, Inc.
   JUSTICE COUSINS

delivered the opinion of the court:

Defendant, Edgewater Hospital (Edgewater), appeals an $845,000 jury verdict rendered against it in a wrongful death action brought by plaintiff, Alfredo Garcia (plaintiff), as administrator of the estate of his deceased wife, Victoria Garcia (Mrs. Garcia).

While at Edgewater, Mrs. Garcia died after surgery performed by Dr. Jafar Shah-Mirany (Dr. Shah-Mirany). At trial, plaintiff’s sole theory against Edgewater was that Edgewater was liable for breach of implied warranty of merchantability under the Illinois Uniform Commercial Code (Commercial Code or Code) (Ill. Rev. Stat. 1983, ch. 26, par. 1 — 101 et seq.). The basis for plaintiff’s implied warranty claim was a defective prosthetic heart valve, manufactured by Shiley, Inc., which lengthened the time necessary to perform Mrs. Garcia’s heart surgery because the defective valve had to be replaced by a second valve. As a result, Mrs. Garcia died from blood loss when, due to their religious beliefs, the Garcias refused to permit a blood transfusion.

The jury returned a verdict in plaintiff’s favor in the amount of $845,000 which was later reduced to $645,000 to reflect a prior $200,000 settlement between plaintiff and the manufacturer, third-party defendant Shiley, Inc. The jury found against plaintiff and in favor of codefendant Dr. Shah-Mirany, on allegations of medical malpractice for unnecessary and negligent performance of the surgical procedure.

Edgewater’s third-party complaint against Shiley seeking indemnity based on breach of warranty allegations was dismissed prior to trial.

The issues presented for review are: (1) whether the trial court erred in ruling that Edgewater’s liability could be premised on breach of an implied warranty of merchantability under the Illinois Commercial Code, (2) whether the trial court erred in ruling that section 2— 621 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 621) did not apply to actions premised on breach of implied warranty of merchantability, (3) whether plaintiff’s claim was barred by the “Refusal To Permit Blood Transfusion” signed by Mrs. Garcia and the “Special Consent And Release” signed by Mr. and Mrs. Garcia, and (4) whether the trial court erred in ruling that the hospital’s third-party complaint for indemnity against the manufacturer was barred by the manufacturer’s previous settlement with plaintiff pursuant to the Contribution Act (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.).

Reversed and remanded with directions.

Background

Mrs. Garcia had a history of heart problems. On July 19, 1982, Mrs. Garcia was admitted to Edgewater Hospital for mitral valve replacement surgery which was to occur on July 21, 1982. The mitral valve connects the heart’s atrial and ventricular chambers and allows blood to properly flow between the two chambers, thereby providing normal heart function. During this surgical procedure, the diseased mitral valve would be removed and replaced with an artificial valve prosthesis so that it would perform the same heart function.

Because Mr. and Mrs. Garcia were of the Jehovah’s Witness religion, Mrs. Garcia agreed to have surgery subject to the condition that there would be no transfusion of blood or blood derivatives, no matter what unforeseen or untoward event occurred. Consequently, on July 20, 1982, the day before the mitral valve replacement surgery, Mrs. Garcia executed two releases.

The “Refusal To Permit Blood Transfusion” signed by Mrs. Garcia provided, in pertinent part, that Mrs. Garcia released

“the attending physician, his assistants, the hospital and its personnel from any responsibility whatever for any untoward results due to my refusal to permit the use of blood or its derivatives.”

The “Special Consent And Release” which was signed by Mr. and Mrs. Garcia read, in pertinent part, as follows:

“[U]nforeseen conditions may be revealed that would medically necessitate a transfusion of human blood or blood derivatives ***. In the event of my death as a result of not administering blood, we hereby absolve Dr. J. Shah-Mirany, his assistants, his designees, and Edgewater Hospital of Chicago and its agents from liability.”

Dr. Shah-Mirany performed the surgery on July 21, 1982. He placed Mrs. Garcia on a cardiopulmonary bypass machine at 9:36 a.m., opened the heart, and removed the diseased valve. Dr. Shah-Mirany then attached a Shiley prosthetic valve to tissues in Mrs. Garcia’s heart, closed the heart, and took steps to close the chest incision.

Mrs. Garcia was then put on partial bypass, her heart was restarted and rewarmed. However, her heart was not functioning properly and Dr. Shah-Mirany took steps to understand and correct the nature of the malfunction. Dr. Shah-Mirany reopened Mrs. Garcia’s heart and found that part of the Shiley valve was floating in the heart’s chamber. Dr. Shah-Mirany removed the defective Shiley valve and replaced it with another Shiley valve. Mrs. Garcia was still on the cardiopulmonary bypass machine. Dr. Shah-Mirany closed Mrs. Garcia’s heart and chest. Surgery ended at 3:10 p.m., and Mrs. Garcia was transferred to the recovery room with her heart functioning satisfactorily.

Mrs. Garcia remained on the cardiopulmonary bypass machine for 3 hours and 49 minutes, which was longer than originally anticipated. Because of the extended time on the bypass machine, Mrs. Garcia developed coagulopathy, a clotting disorder which occurs when the blood will not clot. Mrs. Garcia lost all of her blood, became anemic, and died several hours after her surgery.

Edgewater contends that because Mrs. Garcia was on the cardiopulmonary bypass machine longer than anticipated, she lost more platelets than normal. Dr. Shah-Mirany stated that he repeatedly asked Mr. Garcia to consent to a blood transfusion, but Mr. Garcia repeatedly refused. Dr. Shah-Mirany contends that if Mrs. Garcia had been given blood, she probably would have recovered.

Plaintiff contends that because Mrs. Garcia was on the cardiopulmonary bypass machine too long, the coagulopathy which existed in Mrs. Garcia was irreversible, and a transfusion of platelets would not have reversed the coagulopathy or saved Mrs. Garcia’s life.

However, one of plaintiff’s witnesses, on cross-examination, admitted that the only chance of stopping coagulopathy is to give blood or blood products. This witness also testified that if Mrs. Garcia had received blood or blood products early enough during the bypass, she would have had a chance of surviving.

Plaintiff originally brought an action against other defendants, including the manufacturer of the defective heart valve, Shiley, Inc., Dr. Shah-Mirany and the anesthesiologist alleging claims of strict liability, medical malpractice and negligence. The anesthesiologist was dismissed from the action and Shiley ultimately settled plaintiff’s claim against it for $200,000.

Plaintiff amended his complaint to add an implied warranty theory to his negligence theory against Edgewater. Edgewater then filed a motion to dismiss and/or for summary judgment asserting that section 2 — 621 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 621) mandated Edgewater’s dismissal from the implied warranty cause of action. Edgewater also filed a third-party complaint against Shiley, Inc., seeking implied warranty indemnity in the event that plaintiff prevailed on his implied warranty theory against Edge-water.

Shiley moved to dismiss the third-party complaint on the grounds that the Contribution Act protected it from indemnity because plaintiff’s seventh amended complaint still included allegations of negligence against Edgewater.

The trial court found that Shiley’s settlement barred Edgewater’s indemnity claim pursuant to the Contribution Act and dismissed Edgewater’s third-party complaint.

Plaintiff subsequently dismissed the negligence claims against Edgewater and proceeded to trial solely on the theory that Edgewater’s provision of the Shiley mitral valve was a “sale” under the Illinois Commercial Code and that Edgewater, as merchant under the Code, breached the implied warranty of merchantability by providing a defective valve. Plaintiff also brought a medical malpractice/negligence action against Dr. Shah-Mirany.

The jury returned a verdict against Edgewater in the amount of $845,000 which the trial court reduced to $645,000 to reflect a setoff for the $200,000 settlement with Shiley. The jury returned a verdict in favor of Dr. Shah-Mirany on the medical malpractice/negligence claim. Edgewater filed motions for judgment notwithstanding the verdict, a new trial and/or reinstatement of its third-party complaint all of which were denied. This appeal followed.

Opinion

I

Edgewater contends that the trial court erred in ruling that its liability could be premised on breach of implied warranty of merchantability under the Illinois Commercial Code. We disagree.

Section 2 — 314(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 2 — 314(1)) provides:

“Unless excluded or modified *** a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." (Emphasis added.)

A merchant is:

“a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction ***.” Ill. Rev. Stat. 1983, ch. 26, par. 2-104(1).

Article 2 of the Illinois Commercial Code is limited in its application to “transactions in goods” (Ill. Rev. Stat. 1983, ch. 26, par. 2— 102).

Where a hospital, as an ancillary part of its services, supplies whole blood to a patient by way of a transfusion, it has made a sale rather than performed a service and is therefore subject to liability under a theory of strict tort liability, although the providing of blood is not a principal function of the hospital, for a hospital’s contract with a patient is divisible as to the medical and administrative acts involved. Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, 451, 266 N.E.2d 897.

We note that section 2 of the Blood and Organ Transaction Liability Act (Ill. Rev. Stat. 1983, ch. HV-k, par. 5102) has reversed Cunningham as to blood and blood derivatives. That statute provides:

“§2. Limitation of liability. The procuring, furnishing, donating, processing, distributing or using human whole blood, plasma, blood products, blood derivatives and products, corneas, bones, or organs or other human tissue for the purpose of injecting, transfusing or transplanting any of them in the human body is declared for purposes of liability in tort or contract to be the rendition of a service by every person, firm or corporation participating therein, whether or not any remuneration is paid therefor, and is declared not to be a sale of any such items and no warranties of any kind or description nor strict tort liability shall be applicable thereto, except as provided in Section 3.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. llDk, par. 5102.

The legislature has determined that blood should be treated differently from drugs, surgical implements, food and other articles intended for use in the human body. Hill v. Jackson Park Hospital (1976), 39 Ill. App. 3d 223, 226, 349 N.E.2d 541.

Therefore, Cunningham is still controlling with respect to other sales, i.e., Edgewater’s sale of the two mitral valves to Mrs. Garcia.

In support of its argument, the defendant hospital in Cunningham cited Perlmutter v. Beth David Hospital (1954), 308 N.Y. 100, 123 N.E.2d 792, for the proposition that the transfusion of blood did not constitute a sale pursuant to the sales act in force in New York at that time. (308 N.Y. 100, 123 N.E.2d 792.) The Perlmutter rationale was that when a person enters a hospital as a patient, he goes there not to purchase pills, bandages, etc. but to obtain a course of treatment. (308 N.Y. at 104, 123 N.E.2d at 796.) However, the Cunningham court, unable to accept the reasoning of Perlmutter, stated:

“To assert that the transfusion of whole blood by a hospital into a patient, for which a charge is made, does not give rise to implied warranties because no ‘sale’ is involved is in our judgment simply unrealistic.” Cunningham, 47 Ill. 2d at 450.

The Cunningham court continued that it would be a distortion to try to twist what would be at least arguably a sale into the shape of a service. Cunningham, 47 Ill. 2d at 450.

Edgewater cites WICO Corp. v. Willis Industries (N.D. Ill. 1983), 567 E Supp. 352, 355, Bob Neiner Farms, Inc. v. Hendrix (1986), 141 Ill. App. 3d 499, 501, 490 N.E.2d 257, and Pitler v. Michael Reese Hospital (1980), 92 Ill. App. 3d 739, 742, 415 N.E.2d 1255, for the proposition that the predominant purpose test is applied in Illinois to determine whether contracts are for the sale of goods or for services when both are involved, and that, as such, Edgewater should not be considered a merchant of the mitral valves which it supplied to Mrs. Garcia.

Also, in its supplemental brief, Edgewater cites additional authority in support of the predominant purpose test’s application to this case. (Stiffler v. Lutheran Hospital (7th Cir. 1992), 965 F.2d 137; Elke v. Zimmer, Inc. (1992), 231 Ill. App. 3d 597, 596 N.E.2d 661.) However, these two cases are inapposite as neither deals with breach of warranty or any other provision of the Commercial Code. Rather, the holdings in these cases were based on the statute of repose governing actions against hospitals.

Further, Edgewater cites dicta from Stiffler regarding a hospital’s role. Much of the language in Stiffler parallels language from the Perlmutter case.

The plaintiff, in Elke, initially brought a products liability action against Zimmer and Mercy Hospital. Plaintiff’s second and third counts contained allegations of breach of express and implied warranties against Zimmer and Mercy Hospital. In that case, the express and implied warranties counts were subsequently dismissed by the circuit court.

In the instant case, the hospital charged Mrs. Garcia for two mitral valves. The holding as propounded by our supreme court in Cunningham makes it clear that the supplying of the mitral valves constituted a sale. Therefore, the trial court did not err in ruling that Edgewater’s liability could be premised on breach of implied warranty.

II

Edgewater asserts that the trial court erred in ruling that section 2 — 621 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 621) (products liability actions) did not apply to actions premised on breach of implied warranty of merchantability. We disagree.

Section 2 — 621 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 621) provides:

“(a) In any product liability action based *** on the doctrine of strict liability in tort commenced or maintained against a defendant *** other than the manufacturer, that party shall upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer of the product allegedly causing injury, death or damage ***.
(b) Once the plaintiff has filed a complaint against the manufacturer or manufacturers, and the manufacturer or manufacturers have or are required to have answered or otherwise pleaded, the court shall order the dismissal of a strict liability in tort claim against the certifying defendant or defendants ***.” (Emphasis added.)

The language is inclusive, and the section applies to all strict liability actions. Edgewater contends that the implied breach of warranty action is in reality a strict liability action.

The theories of breach of implied warranty and strict liability are nearly identical. (Nave v. Rainbo Tire Service, Inc. (1984), 123 Ill. App. 3d 585, 592, 462 N.E.2d 620.) A breach of implied warranty theory is a form of strict liability without the necessity of proving negligence or fault on the part of the defendant. Nave, 123 Ill. App. 3d at 592.

The strict liability theory is essentially the liability of implied warranty divested of the contract doctrines of privity, disclaimer and notice. Dunham v. Vaughn & Bushnell Manufacturing Co. (1967), 86 Ill. App. 2d 315, 333, 229 N.E.2d 684, ajf’d (1969), 42 Ill. 2d 339, 247 N.E.2d 401.

The existence of a defect in a product has been held to be a necessary requirement to prevail under either theory. State Farm Fire & Casualty Co. v. Miller Electric Co. (1990), 204 Ill. App. 3d 52, 62, 562 N.E.2d 589.

Courts have held that to recover under a breach of implied warranty of merchantability theory, a plaintiff must establish (1) a sale of goods, (2) that the seller of the goods is a merchant with respect to those goods, and (3) that the goods were not of merchantable quality. Malawy v. Richards Manufacturing Co. (1986), 150 Ill. App. 3d 549, 558, 501 N.E.2d 376.

Also, implied warranty of merchantability is an action in contract. (See Ill. Rev. Stat. 1983, ch. 26, par. 2 — 314.) Strict liability is a tort action. (Restatement (Second) of Torts §402A, Comment m (1965).) Contribution is grounded in tort. Faier v. Ambrose & Cushing, EC. (1993), 154 Ill. 2d 384, 387.

Although the two theories are nearly identical, they are not synonymous. The ultimate participant in strict liability actions is the manufacturer, whereas the ultimate participant in implied warranty of merchantability actions is a merchant. The court did not err in ruling that section 2 — 621 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 621) did not apply to actions premised on breach of implied warranty of merchantability.

Ill

Edgewater contends that the “Refusal To Permit Blood Transfusion” signed by Mrs. Garcia and the “Special Consent And Release” signed by Mr. and Mrs. Garcia barred plaintiff’s claim as a matter of law against Edgewater. We agree.

At oral argument, plaintiff for the first time argued that the “Jehovah Witness Special Consent And Release” which was executed by both Mr. and Mrs. Garcia did not bar plaintiff’s claim because it did not contain express reference to the language under the Uniform Commercial Code (UCC) to disclaim the implied warranties of merchantability and fitness for a particular purpose. (Ill. Rev. Stat. 1983, ch. 26, par. 2 — 316(2).) Defendant Edgewater contends that because plaintiff did not raise this issue below or in his appellate brief, it is waived. We agree. 134 Ill. 2d R. 341(e)(7); Robles v. Chicago Transit Authority (1992), 235 Ill. App. 3d 121, 131, 601 N.E.2d 869 (argument raised for first time in oral argument waived pursuant to Rule 341(e)(7)); Consentino v. Price (1985), 136 Ill. App. 3d 490, 494, 483 N.E.2d 297, 300 (theory upon which a case is tried cannot be changed on review, issue not presented to or considered by the trial court cannot be raised for the first time on appeal); Klubeck v. Division Medical X-Ray, Inc. (1982), 108 Ill. App. 3d 630, 635-36, 439 N.E.2d 506 (theory advanced below cannot be changed on review).

Moreover, appellate courts should not consider different theories or new questions if proof might have been offered to refute them had they been presented at trial. Klubeck, 108 Ill. App. 3d at 636.

We also consider that the purpose of section 2 — 316(2) of the Uniform Commercial Code is to protect the buyer from unbargained language of disclaimer by denying effect to such language when inconsistent with contract language of express warranty, and it permits the exclusion of implied warranties by conspicuous language in the contract. First National Bank v. Husted (1965), 57 Ill. App. 2d 227, 235, 205 N.E.2d 780.

In the case at bar, the “Refusal To Permit Blood Transfusion” provided:

“I request that no blood or blood derivatives be administered to myself Victoria Garcia during this hospitalization, notwithstanding that such treatment may be deemed necessary in the opinion of the attending physician or his assistants to preserve life or promote recovery. I release the attending physician, his assistants, the hospital and its personnel from any responsibility whatever for any untoward results due to my refusal to permit the use of blood or its derivatives.”

The “Special Consent And Release” stated:

“I hereby authorize Dr. J. Shah-Mirany and/or such assistants as may be selected by him to treat my heart condition by the performance of the following surgery: open heart surgery, mitral valve replacement and possible IAB cardiac arrest.
The procedures necessary to treat my condition have been explained to me by Dr. J. Shah-Mirany, and I understand the nature of the procedures to be opening the chest, removing the diseased valve and replacement and any other procedure necessary[.]
It has been explained to me that during the course of the operation, unforeseen conditions may be revealed that would medically necessitate a transfusion of human blood or blood derivatives. I do not authorize the above-named surgeon, his assistants, or his designees to perform such transfusion. I fully recognize that failure to transfuse blood may result in my death.
In the event of my death as a result of not administering blood, we hereby absolve Dr. J. Shah-Mirany, his assistants, his designees, and Edgewater Hospital of Chicago and its agents from liability.” (Emphasis added.)

While we are mindful that exculpatory contracts are not favored and must be construed against the benefitting and drafting party, they will be enforced unless it would be against public policy, or there is something in the social relationship of the parties militating against upholding the agreement. Harris v. Walker (1988), 119 Ill. 2d 542, 548, 519 N.E.2d 917.

We are also mindful that releases which spell out the intention of the parties with great particularity generally will not be construed to defeat a claim which is not explicitly covered by the terms of the release. Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 ILl. 2d 378, 395, 493 N.E.2d 1022.

Here, in construing the releases against the hospital and in reviewing the record for violation of public policy, there are no policy reasons which would indicate that the releases should not be upheld.

The releases explicitly delineated the desires and intentions of both parties. Mrs. Garcia did not want a blood transfusion under any circumstances and the hospital would not be responsible whatever untoward result occurred from her refusal to permit such transfusion.

Also, the Illinois Supreme Court has held that a Jehovah’s Witness’ first amendment rights preclude them from being forced to accept blood transfusions. In re Estate of Brooks (1965), 32 Ill. 2d 361, 372, 205 N.E.2d 435.

We note that plaintiff cites Corlett v. Caserta (1990), 204 Ill. App. 3d 403, 407, 562 N.E. 2d 257, for the proposition that the releases which were executed by Mrs. Garcia did not relieve Edgewater from being obligated to furnish her with a heart valve that was fit for its intended purpose.

However, Corlett is distinguishable from the case at bar. In Corlett, plaintiff’s wrongful death suit was founded upon the defendant doctor’s alleged negligent failure to timely diagnose and treat the decedent’s gastric bleeding following colon surgery. The suit was not predicated upon the defendant doctor’s respect for the decedent’s refusal-to-transfuse-blood release. Consequently, the court found that the release did not relieve the defendant doctor from liability for alleged negligence.

In the case at bar, releases were necessary to protect the hospital from unforeseen developments such as the one which occurred. The releases were straightforward and unambiguous. They expressly addressed the possibility of unforeseen conditions (i.e., the defective Shiley mitral valve) and acknowledged that if unforeseen conditions occurred, Mrs. Garcia’s refusal to permit a blood transfusion might result in her death.

As such, we hold that the releases barred plaintiff’s claim against Edgewater. Although we must reverse because of this holding, for completeness, we will address the remaining issue relating to the dismissal of Edgewater’s third-party complaint for indemnity against Shiley.

IV

Edgewater contends that the trial court erred in granting defendant Shiley’s motion to dismiss Edgewater’s third-party complaint on the ground that Edgewater’s third-party complaint for indemnity against Shiley was barred by Shiley’s previous settlement with plaintiff pursuant to the Contribution Act. We agree.

A

The right to indemnity and the right of contribution are separate and distinct concepts. Contribution contemplates the distribution of liability for a loss among joint tortfeasors according to each tortfeasor’s percentage of relative fault. However, indemnity allows one tortfeasor to shift the entire loss to another tortfeasor. (Dixon v. Chicago & North Western Transportation Co. (1992), 151 Ill. 2d 108, 118, 601 N.E.2d 704.) The Illinois Supreme Court has held that the implied warranty in a defective products case remains available only where the party seeking the right was not negligent or otherwise at fault in causing the loss. Dixon, 151 Ill. 2d at 120-21.

Generally, indemnity is the obligation resting on one party (the indemnitor) to make good a loss or damage another (the indemnitee) has incurred. The right to be indemnified by another may be express, as in a contractual provision, or it may be implied, which would arise in situations in which a promise to indemnify can be implied from the relationship between the tortfeasors. Dixon, 151 Ill. 2d at 118.

Subsequent to the Dixon case, the Illinois Supreme Court directly considered whether the Contribution Act abolished common law implied indemnity in quasi-contractual situations. The supreme court has held that acts in relation to contribution among joint tortfeasors do not effectively abolish actions for common law implied indemnity in vicarious liability actions. American National Bank & Trust Co. v. Columbus Cuneo-Cabrini Medical Center (1992), 154 Ill. 2d 347 (modified upon denial of rehearing, February 1, 1993).

Also, the circumstances in the case at bar relative to the right to indemnity is also analogous to Faier where our supreme court held that a defendant-attorney who settled the entire claim of plaintiff in a legal malpractice action had the right to maintain an action for contribution and implied indemnity against a released, nonsettling attorney. Faier, 154 Ill. 2d at 387.

Following the American National Bank and Faier cases, we now hold that the trial court erred in ruling that Edgewater’s third-party complaint for indemnity against Shiley was barred by Shiley’s previous settlement with plaintiff.

B

Shiley contends that Edgewater’s implied indemnity claim is barred by the UCC four-year statute of limitations contained in section 2 — 725 of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 2 — 725), which provides that UCC actions must be filed within four years of the contract breach. We disagree.

The Illinois Supreme Court and the Illinois Appellate Court have established that even where the parties have an underlying contractual relationship, an implied indemnity action is still an action sounding in tort and therefore the UCC four-year statute of limitations does not apply. Instead, the applicable limitation statute is the general five-year provision contained in section 13 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 205), which provides that the limitation does not run until judgment is entered against the party seeking indemnity. Maxfield v. Simmons (1983), 96 Ill. 2d 81, 86, 449 N.E.2d 110; Anixter Brothers, Inc. v. Central Steel & Wire Co. (1984), 123 Ill. App. 3d 947, 953, 463 N.E.2d 913.

In Maxfield and Anixter Brothers, the defendant/third-party plaintiff (like Edgewater) was sued on a contractual theory. In Max-field, defendant/third-party plaintiff, Simmons, was sued in contract for installing defective materials in a home. Simmons had purchased the defective materials from the third-party defendants. Thus, Simmons filed a third-party complaint for implied indemnity against the third-party defendants who claimed that the implied indemnity action was barred by the four-year statute of limitations under the Uniform Commercial Code. Our supreme court rejected the UCC argument and held that although the relationship between the parties was premised on contract, the implied indemnity action itself was still premised on tort principles and thus:

“A recognition of this implied right of indemnity does not ‘eviscerate’ the UCC’s statute of limitations contained in section 2— 725, since it has no application to the indemnity cause of action.” Maxfield, 96 Ill. 2d at 86.

In Anixter Brothers, the plaintiff, Anixter Brothers, brought an action for breach of contract and breach of warranty against Central Steel & Wire Co. (Central) to recover damages for the replacement of defective brass tubing. Central then brought a third-party implied indemnity action against Bridgeport Brass Co., which had sold the allegedly defective brass tubing to Central. Bridgeport moved to dismiss inter alia on the grounds that the third-party complaint was barred by the four-year UCC statute of limitations. Following Max-field, the appellate court held that although the relationship between Central and Bridgeport arose as a result of a contract, the implied indemnity action is still a tort recovery and, therefore, the UCC period of limitations for bringing an action under the UCC is inapplicable. Anixter, 123 Ill. App. 3d at 953.

For the foregoing reasons, we reverse and remand with directions that the judgment against Edgewater be vacated and that judgment be entered for Edgewater and against plaintiff.

Reversed and remanded with directions.

MURRAY and McNULTY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNULTY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN GOLDEN, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 92—0456
    Opinion filed April 16, 1993.

      Rita A. Fry, Public Defender, of Chicago (Tina Liebling, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Barbara L. Jones, Kelly S. Caner, and Jason H. Payne, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

Defendant Melvin Golden was charged with first-degree murder. Codefendant Vincent Williams was also charged with first-degree murder on an accountability theory. After a joint bench trial, Golden was convicted of second-degree murder and sentenced to 12 years in the penitentiary. Williams was acquitted on a motion for directed finding. Golden has timely appealed his conviction and sentence pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603).

The three following issues are presented for review: (1) whether the court properly found defendant guilty of second-degree murder upon finding that due to mitigating circumstances the State had not proved defendant guilty of first-degree murder; (2) whether the murder statute satisfies due process constitutional principles by requiring defendant to prove by a preponderance of the evidence that his belief in self-defense was unreasonable; and (3) whether the court abused its discretion in sentencing defendant to 12 years’ imprisonment.

On February 16, 1990, defendant Melvin Golden shot and killed Anthony McGruder. Defendant asserted that he had shot McGruder in self-defense. The State presented three occurrence witnesses: Mervin Douglas, Trina Steward (deceased’s sister) and Ronie Brown. Defendant and Pamela Williams (codefendant Williams’ sister) testified for the defense.

Mervin Douglas testified that on February 26, 1990, between 6:30 and 7:30 p.m., he was walking east on Washburne Street in Chicago, Illinois, toward his aunt’s house. It was dark out but there were streetlights.

As Douglas approached 1942 West Washburne Street, he saw the deceased, codefendant Williams, and defendant on the sidewalk in front of Williams’ house. He was on the same side of the street as they were. Douglas was 16 years old and had known Williams and the deceased for over five years, but had known defendant for less than two months. Defendant and Williams were two to three feet apart, facing west on Washburne toward Damen Avenue.

Douglas further testified that Williams, Golden and the deceased were arguing. There was shouting, but he could not tell who was doing the shouting. There were at least seven people on the porch of Williams’ house on Washburne Street. In a blue car double-parked in the street were Trina Steward, Andrew Howard, Simmy McGruder and another man Douglas did not recognize. Trina Steward was sitting in the driver’s seat. He stopped about 10 or 12 feet away and listened, but could not understand what the three men were saying, except for hearing the deceased mention his cousin DeWayne McGruder. He denied on cross-examination that he heard the deceased say, “My cousin is too little for you, and if anything happens to him I’ll get you.” It was, however, stipulated that Douglas made the statement to a detective investigating the homicide of Anthony McGruder.

The three men walked away from each other and then walked back toward each other. Codefendant Williams then pushed the deceased on the upper part of his body. At that point, to avoid involvement, Douglas testified that he got off the sidewalk, went around a red car parked at the curb, walking onto the street. He stopped and looked. He was then a few feet from the blue car in which Steward, Howard and Simmy McGruder sat. He stopped, looked and saw shots from a gun which he described as two sparks of “fire jumping out of a gun.” He did not see who was holding the gun but saw that the shots came from defendant. The deceased’s back was to Douglas and only defendant faced Douglas. He did not know the number of shots fired. Defendant, however, at that point stood beside codefendant Williams, about four or five feet from the deceased.

After seeing the two sparks from the gun, Douglas lay down in the street beside the red car. He heard more gunshots and eventually got up from the ground. He looked around and saw that Williams and Golden were gone. He watched the deceased run around the rear of the red car and into the street, where he collapsed. Simmy McGruder and Andrew Howard picked up the deceased, put him in the blue car, and rode away. Douglas testified that he did not see the deceased with a gun at any time.

A few moments later Douglas saw defendant; defendant stumbled, but did not fall down. Douglas asked defendant if he had been shot. Defendant said, “No, get away from me,” and pointed a gun at Douglas.

Deceased’s sister, Trina Steward, also testified. She was 25 years old at the time of the trial. She had known codefendant Williams for over 10 years, but had known defendant for less than two months. At about 7 p.m. Trina was driving her car. In the car with her were the deceased, Ronie Brown and Andrew Howard. On direct examination she stated that Simmy McGruder was not in the car, but on cross-examination she stated that Simmy was in the car, but got out at some point. Trina double-parked her car two houses from Williams’ house at 1942 West Washburne, and the deceased got out of the car. Williams was standing in front of his house. The deceased and Williams talked for about 15 minutes, but Trina could not hear what they said. She was talking to Ronie Brown and the car radio was playing. Then codefendant Williams and the deceased raised their voices and began arguing. At that point Trina turned the radio volume down and began watching them. She saw Williams push deceased in the chest. At some point defendant came out from “by the hallway” and stood down the street about 15 feet away from Williams. Williams was facing Trina. Deceased was wearing a coat and had his back towards her. Before Williams pushed the deceased, defendant had not argued with the deceased. After Williams pushed the deceased, defendant said something, after which Trina heard about two gunshots that came from where defendant stood. On cross-examination she testified she heard a total of four shots. She immediately turned around and saw defendant shooting from about 15 feet away. At the time she heard the gunshots she could not see the deceased’s hands, although she saw him make a hand motion. His back was to her during the shooting but she never saw him with a gun while she was at the scene. After the shooting Trina saw the deceased run toward her car, falling down. He yelled that he had been shot. Howard got out of the car first, followed by Trina and Brown. Howard and Brown picked up the deceased and put him in the car. Trina did not see the deceased with a gun. She saw no one shooting that night except defendant. She saw that the deceased was injured and drove him to the hospital. On cross-examination she acknowledged that there was “bad blood” between her family and defendant.

The last witness for the prosecution was Ronie Brown, who had been at the scene of the shooting as a passenger in Trina’s car. He had known the deceased for about five years and the deceased was his good friend. He had known codefendant Williams for about one year. He testified that he saw Williams and the deceased talking. He then heard their voices get louder and asked Trina to turn the car radio down, which she did. Brown then heard someone say, “I’m not afraid to die,” but did not know who made the statement. Then Brown saw codefendant push the deceased. Neither Williams nor the deceased had anything in his hands. He heard two gunshots. He did not see another person with codefendant and the deceased, but he saw the gun and the hand that held it. The hand with the gun was behind codefendant, between him and the house at least three to four feet behind and at an angle to codefendant. After he heard the two gunshots, Brown ducked and then heard two or three more shots but did not know where they came from.

When he got up, Brown saw some people running through a vacant lot, but did not know who they were or how many there were. No one remained on the sidewalk or on the porch of Williams’ house. The deceased was running toward the car. Howard got out of the car and went up to the deceased, who said he had been hit. Howard and Brown helped deceased into the car and drove to the hospital. Brown testified that the deceased did not have a gun when he helped him into the car.

The parties stipulated that if Dr. Tae Lyong, a forensic pathologist who examined Anthony McGruder’s body, were called he would testify that Anthony McGruder’s death was caused by the gunshot wounds he received.

At the close of the State’s case, codefendant Williams’ motion for a directed finding was granted and a similar motion by defendant was denied.

Pamela Williams, codefendant’s sister, testified for the defense. She stated that she had lived with her brother Vincent and other family members at 1942 West Washburne, on the second floor, for a period of six years. In January or February 1990, defendant, who is her cousin, came to live with them.

She testified about an incident that took place in January 1990, before the shooting that occurred on February 26, 1990. On that unspecified date in January, she was alone on the front porch of her house when she saw a mob of people following her brother Vincent Williams and cousin Melvin Golden to their house. One of the mob had a shovel, one had an axe and others had sticks in their hands. She recognized four of the group as Trina McGruder (also known as Trina Steward), Martha McGruder, DeWayne McGruder and Calvin McGruder. The deceased was not among them. They were cursing Williams and Golden, who were returning the epithets. Williams and defendant had no weapons. She told Williams and defendant to “just come on and leave it alone.” Christopher McGruder, the deceased’s brother, stopped the hostilities and sent his sisters and nephews home.

Pamela further testified that on the date of the shooting she was at home. She looked out the window and saw her brother Vincent, her cousin Melvin, the deceased, Anthony McGruder, and Andrew Howard standing on the sidewalk. Williams and the deceased were arguing. She came downstairs and joined two cousins who were standing on the porch. Defendant was standing next to Williams. Andrew was standing to the right of Anthony, the deceased. She saw Trina’s car in the street with Ronie Brown in it.

She walked within a foot of the deceased and asked what was happening, but no one answered. Pamela then testified that the deceased was wearing a coat but it was unzipped. She then saw a black gun in the deceased’s waistband and said she was going to call the police. As she was walking away she heard shots and ran next door to call the police. She made the call but did not see the shooting. After the shooting, defendant and Williams disappeared, and she had not seen defendant since the night of the shooting.

On cross-examination Pamela testified that she told Detective Harris that she saw the deceased with a gun when Harris came to her grandmother’s home at 1948 West Washburne about two months after the shooting.

Finally, defendant testified in his own behalf. He corroborated Pamela’s testimony about the hostile incident that occurred in January 1990 between him, his cousin Vincent and several of the McGruders. However, he also stated, as did Pamela, that the deceased was not among the group. He further testified to another hostile confrontation with some McGruders at a neighborhood basketball center, but stated that the deceased was not in that group either. However, he testified that he and one of the McGruders got into a fist fight on that occasion.

He testified about a third incident in which he and Williams and a third person were fired upon by a group of men as they were on their way to a tavern. He did not call the police, but he got a gun.

Defendant’s version of the shooting which occurred on February 26, 1990, was materially different than that testified to by the prosecution witnesses. He testified that he was at the neighborhood basketball center where he met some of the McGruders. No hostilities occurred and the exchange of words was conciliatory in nature. Later, codefendant Williams arrived at the center and he and defendant went home together.

As they approached the house, a car pulled up to defendant’s right. He got up on the porch of the building where he and Williams lived, but Williams was off the porch. A woman was driving the car. The deceased got out of the car with some other people. Defendant testified that although he had not had problems with the deceased in the past, he focused his attention on the deceased in particular because he saw a gun when the deceased opened his coat.

The deceased walked up and said he planned to talk to codefendant about a fight with his cousin. The deceased then put a finger up to Williams’ head and Williams knocked it off. Defendant then testified that the deceased, whose jacket was open, reached for a gun. Defendant saw the butt of the gun sticking out of the deceased’s pants. Williams then pushed the deceased back and the deceased grabbed the gun, saying, “I’ll kill you and your cousin [sic].” Defendant was then closer than six to seven feet from the deceased. As the deceased grabbed his gun, defendant reached for his own gun. The deceased fired at defendant and defendant returned the fire. The deceased fired again, defendant covered his face with his left hand. Defendant then fired two shots, and the deceased fired two or three shots. Defendant testified that he was trying to hit the deceased’s gun arm, but he could not see the deceased because of the sparks from the deceased’s gun. Defendant did not get hit by a bullet, but the deceased was shot in the face and chest. After the shots were fired, both defendant and the deceased turned around and tried to run. Defendant saw the deceased stumble a little, but kept running until he could not see the deceased any more.

Defendant further testified that he ran through a vacant lot where he dropped the gun. He then started up an alley when he saw codefendant Williams come out of a gangway. Williams fell and defendant asked him if he had been shot. Williams said he was all right, and each man then ran in opposite directions.

A man was following defendant. Defendant fell and the man stopped and asked defendant if he was shot. Defendant got up and ran away. He concluded his testimony by stating that at the time he fled the scene he did not know that Anthony had been killed or even hit. Much later in July of 1990, he turned himself in to the police when he found out that Anthony McGruder had died and that codefendant Williams had been arrested for the shooting.

After hearing closing arguments by both sides, the court found defendant not guilty of first-degree murder, but guilty of second-degree murder. After conducting a sentencing hearing including evidence and argument in aggravation and mitigation, and defendant’s statement in allocution, the court sentenced defendant to 12 years’ imprisonment. This appeal followed.

I

Defendant contends that because the court made a finding that first-degree murder had not been proved, defendant was entitled to an acquittal. His theory is as follows: second-degree murder requires proof of all the elements of first-degree murder, plus additional proof of one of two mitigating factors, the one relevant to this case being unreasonable belief in the necessity to use deadly force in self-defense. Once the court found that first-degree murder had not been proved, an essential element to the finding of second-degree murder was therefore absent, thus entitling him to an outright acquittal. This argument misperceives the court’s finding and the necessary elements of proof required for a conviction of second-degree murder.

First, the court found that defendant intentionally fired the weapon that caused the death of Anthony McGruder on February 26, 1990. That finding contained all the necessary elements of first-degree murder. However, the court went on to say that on the preponderance of the evidence presented, a mitigating circumstance existed that would warrant a finding of guilty of second-degree murder rather than first-degree murder. The State’s witnesses all testified that the deceased did not have a gun at the time of the shooting. Defendant and his witness testified to the contrary that Anthony McGrunder had a weapon at the time of his quarrel with codefendant Williams and defendant. The court’s finding was obviously predicated upon its determination that the State’s witnesses who testified that the deceased had no weapon were more credible than defense witnesses who testified that he had one. Therefore, the court properly concluded that defendant’s belief that it was necessary to use deadly force to defend himself and his cousin was unreasonable, but nevertheless a mitigating factor sufficient to reduce his culpability to second-degree rather than first-degree murder.

The State, however, carried its entire burden of proving beyond a reasonable doubt the existence of each of the elements of first-degree murder and the absence of circumstances at the time of the killing that would justify or exonerate the killing under principles stated in article 7 of the Illinois Criminal Code of 1961. Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2.

The evidence presented by the State and the defense in addition established by a preponderance of the evidence the mitigating factor of defendant’s subjective but unreasonable belief in the need to use deadly force in self-defense thus resulting in the finding of guilty of second-degree murder.

Illinois law presumes that a judge conducting a bench trial understands and follows the law. (People v. Stewart (1970), 130 Ill. App. 2d 623, 264 N.E.2d 557.) However, this presumption is rebutted when the record affirmatively demonstrates the contrary. (People v. Francis (1978), 73 Ill. 2d 184, 383 N.E.2d 161.) Defendant contends that the judge failed to follow the law by failing to first determine whether the State disproved beyond a reasonable doubt that defendant acted in self-defense before considering whether mitigation existed that would reduce the offense to second-degree murder. The record does not support this argument. The statute requires that the State prove beyond a reasonable doubt each element of first-degree murder and, when appropriately raised, i.e., by the defendant or the State’s own evidence, the absence of circumstances that would justify or exonerate the killing. The State presented evidence that the deceased was unarmed which the court found sufficient to prove beyond a reasonable doubt that there were no circumstances existing at the time of the killing which justified defendant’s use of deadly force in defense of himself and his cousin. The fact that defendant presented contrary evidence that the deceased had a firearm at the time was a conflict resolved by the trier of fact against defendant. Defendant’s contention that the court failed to consider defendant’s self-defense argument is belied by the record and the court’s own finding. It accepts defendant’s contention that he acted in self-defense but rejects the argument that it justified or exonerated the killing because the evidence established beyond a reasonable doubt that defendant’s use of deadly force was unreasonable.

II

Defendant next argues that the second-degree murder statute violates his due process rights because it precludes a trier of fact from finding a defendant who is charged with first-degree murder and claims self-defense to be guilty of second-degree murder. Contrary to defendant’s contention, he was found guilty in this case of second-degree murder and thus lacks standing to challenge the constitutionality of the statute because he has not been directly injured or in immediate danger of direct injury by the statute’s enforcement. People v. Esposito (1988), 121 Ill. 2d 491, 521 N.E.2d 873.

Even if defendant had standing to challenge the constitutionality of the statute, his constitutional argument is not persuasive. Defendant is not required to prove a mitigating factor. A conviction is reduced from first-degree to second-degree murder when a preponderance of the evidence establishes a mitigating factor. (People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335.) This evidence could be provided by the defendant, but it could be established as well by the State. Pattern jury instructions for determining first-degree or second-degree murder state that a defendant is not required to present evidence of a mitigating factor and direct the jury to consider all the evidence to determine the existence of a mitigating factor. Illinois Pattern Jury Instructions, Criminal, Nos. 2.03A, 7.06A (2d ed. Supp. 1989).

Defendant’s analogy to the pattern jury instructions found erroneous in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, is inapt. In Reddick, the instructions stated that the State was required to prove mitigating circumstances to reduce murder to manslaughter whereas the applicable law required the State to disprove mitigating factors. Since this case was a bench trial and not a jury trial, instructions were not involved. It is clear from the record, however, that the trial court correctly applied the law in finding defendant guilty of second-degree murder and thus defendant’s due process rights were not violated.

Defendant’s final due process attack on the statute alleges that it relieves the State of its constitutional burden of proving all elements of first-degree murder by requiring a defendant to prove a mitigating mental state. In support of his argument he relies on Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881. In Mullaney, the Supreme Court struck down the Maine murder statute because it required a defendant to prove that he killed with provocation, or malice, an element of the crime under Maine law that was im-

plied. The court held that this statutory scheme was a violation of the due process principles set forth in In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068, because absence of provocation was a part of the definition of malice and thus an element of the crime.

The Illinois murder statute does not require the defendant to prove a less culpable mental state to reduce first-degree murder to second-degree murder. (People v. Newbern (1991), 219 Ill. App. 3d 333, 579 N.E.2d 583.) Both degrees of murder require intent to kill or knowledge that one’s act will cause death or great bodily harm or knowledge that one’s act will create a strong probability of death or great bodily harm. (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1, 9 — 2.) The State must prove this element beyond a reasonable doubt. This statute is similar to the New York statute approved by the Supreme Court in Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319. In Patterson the State had to prove all the required elements of the crime charged including the mental state. Only then did the statute shift the burden to the defendant to prove by a preponderance of the evidence an affirmative defense of extreme emotional disturbance to reduce the crime to manslaughter from murder. Patterson, 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319.

The murder statute in Illinois meets the constitutional requirements that the State must prove all the essential elements of the crime. It is not unconstitutional for the legislature to require a defendant to prove a mitigating factor that would reduce the crime from first- to second-degree murder. Martin v. Ohio (1987), 480 U.S. 228, 94 L. Ed. 2d 267, 107 S. Ct. 1098; McMillan v. Pennsylvania (1986), 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411; Patterson, 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 3219.

Furthermore, the Illinois Supreme Court and numerous appellate court opinions have stated that the murder statute requires the State to prove the essential elements of first-degree under the law now in effect. (People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141; People v. Mitchell (1991), 221 Ill. App. 3d 926, 583 N.E.2d 78; People v. Wright (1991), 218 Ill. App. 3d 764, 578 N.E.2d 1090; People v. Willis (1991), 217 Ill. App. 3d 909, 577 N.E.2d 1215; People v. Jerome (1990), 206 Ill. App. 3d 428, 564 N.E.2d 221; People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335.) The Illinois Supreme Court stated in Reddick that mitigating factors which reduce the crime from murder to manslaughter are not elements of the offense, but are affirmative defenses that do not bear upon the ultimate burden of proof. Reddick, 123 Ill. 2d at 196, 526 N.E.2d at 145.

When a defendant is charged with first-degree murder he may choose to present evidence of mitigating factors sufficient to reduce his degree of culpability. The State must still prove all the elements of the crime. Failure to do so exonerates the defendant regardless of whether he presents mitigating evidence, but if he does so, the State must disprove those factors beyond a reasonable doubt. Buckner, 203 Ill. App. 3d at 533, 561 N.E.2d at 341.

A defendant charged with second-degree murder is not required to prove anything. The State is required to prove all the elements of first-degree murder and concede the mitigating factors. Buckner, 203 Ill. App. 3d 525, 561 N.E.2d 335.

For the reasons set forth above, the murder statute is constitutional.

Ill

Finally, defendant argues that his sentence of 12 years’ imprisonment was excessive. Imposition of sentence is a matter within the sound discretion of the trial court. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) A reviewing court may reduce a sentence imposed by the trial court only when the record affirmatively shows that the trial court abused its discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Defendant was convicted of second-degree murder, a Class I felony with a maximum sentence of 15 years’ imprisonment. The trial court carefully considered the mitigating factors, such as defendant’s age of 19 at the time of his arrest for this offense and his lack of a prior serious criminal record.

Aggravating factors were also present and were considered by the court in the case at bar. Defendant and his cousin Vincent Williams had experienced ongoing difficulties with certain members of the Mc-Gruder family. Instead of seeking peaceful solutions, defendant’s response was to arm himself with a gun. The argument that led to Anthony McGruder’s death began as a quarrel between the deceased and defendant’s cousin Vincent into which defendant injected himself with tragic consequences. There was no prior history of trouble between defendant and Anthony McGruder. The court recognized a mitigating factor by finding defendant guilty of second-degree murder, based upon defendant’s unreasonable belief that the use of deadly force was necessary in defense of himself and his cousin Vincent. Although defendant claimed Anthony McGruder was armed, the prosecution witnesses all testified that Anthony had no weapon and the trial court resolved this conflict against defendant. Under such circumstances the use of deadly force was neither mature nor responsible. An important factor that a court must consider in sentencing a defendant is the necessity to deter others from committing similar criminal conduct. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5—3(a), (f); People v. Burrett (1991), 216 Ill. App. 3d 185, 576 N.E.2d 293.) A sentence of 12 years or more has been given in other cases of second-degree murder or voluntary manslaughter. (People v. Murillo (1992), 225 Ill. App. 3d 286, 587 N.E.2d 1199; People v. Fisher (1989), 186 Ill. App. 3d 255, 542 N.E.2d 1127; People v. Gaurige (1988), 168 Ill. App. 3d 855, 522 N.E.2d 1306.) A sentence of 12 years’ imprisonment was appropriate to show those who witnessed the violence in this case as well as others that arming oneself with a gun as a means to settle disputes will receive a serious societal response.

For the reasons set forth above, defendant’s conviction and sentence are affirmed. As part of our judgment, we grant the State’s request and assess defendant $50 as costs for this appeal.

Affirmed.

GORDON, P.J., and COUSINS, J., concur.


author: PRESIDING JUSTICE INGLIS

text:
    BRIEN J. NAGLE et al., Plaintiffs-Appellees, v. NADELHOFFER, NAGLE, KUHN, MITCHELL, MOSS AND SALOGA, P.C., d/b/a Nadelhoffer, Campbell, Kuhn, Mitchell, Moss, and Saloga, P.C., et al., Defendants-Appellants.
    Second District
    No. 2—92—1176
    Opinion filed May 5,1993.
    Rehearing denied June 9,1993.

      Gary E. Campbell, of Nadelhoffer, Nagle, Kuhn, Mitchell, Moss & Saloga, P.C., of Naperville, for appellants.

      Stephen D. Helm and Scott M. Day, both of Helm & Day, of Naperville, for appellees.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendants, the law firm of Nadelhoffer, Campbell, Kuhn, Mitchell, Moss and Saloga (NCK) and several individual partners thereof, appeal under Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)) the trial court’s interlocutory denial of their motion to compel the arbitration of a dispute between them and plaintiffs, Brien Nagle, Patricia Higgins, and the law firm of Nagle & Higgins (N & H).

NCK was formerly known as Nadelhoffer, Nagle, Kuhn, Mitchell, Moss & Saloga. It was organized on September 30, 1987, as a professional corporation. On September 14, 1988, Nagle began employment with NCK as an attorney, corporate secretary, and partner. He also became a stockholder in NCK. Nagle and NCK entered into an employment agreement whereby Nagle was entitled to certain compensation upon the termination of his employment with NCK. The employment agreement contained the following arbitration clause:

“18. ARBITRATION. Any controversy or claim arising out of, or relating to this Agreement, or the breach thereof, shall be settled by arbitration in the City of Naperville in accordance with the rules then in effect of the Chicago Chapter of the American Arbitration Association, and judgment upon the award rendered may be entered in any court having jurisdiction thereof.”

On September 29, 1989, NCK entered into a stock redemption agreement with all of its shareholders, including Nagle, whereby NCK agreed to purchase the shares of any shareholder who terminated his employment with the firm. The stock redemption agreement contained no arbitration clause.

On April 17, 1989, Patricia Higgins became an associate attorney with NCK. She entered into no employment agreements with NCK.

On March 5, 1992, both Nagle and Higgins resigned their positions with NCK effective March 7, 1992, and formed N & H. Soon thereafter, Nagle requested payment from NCK of money he claimed the firm owed him under the stock redemption agreement and the compensation provisions of the employment agreement.

A letter of May 13, 1992, from defendant Gary Campbell to Nagle stated the following:

“In light of the circumstances under which you left the firm, the partners have asked me to determine whether any breach of fiduciary duties occurred and, if so, what are the consequences.

As an officer-shareholder (‘partner’) you had a fiduciary duty of good faith, loyalty, and fair dealing to the firm. We believe that fiduciary duty was breached in two respects. First, without our consent, you, while still a partner, entered into negotiations with the firms’ [sic] employee, Pat Higgins, to form a rival firm, and did in fact form a rival firm.

Second, you have appropriated firm business for the benefit of the rival firm. Brien, it appears that our options at this point are either to negotiate a resolution with takes into account these breaches, or proceed with litigation. The choice is yours.

Should you wish to negotiate these issues, please provide us with an accounting of all income taken in by the firm of Nagle & Higgins resulting from work which was initiated while you and Pat were at our firm.

We must also resolve through negotiation or litigation the issue of compensation to our firm from the lost profits occasioned by the loss of Pat Higgins. Based on last year’s figures, the firm had a reasonable expectation of making at least $100,000 from Pat’s time during the current year.

We think a strong case can be made for the proposition that because of the aforementioned breaches of fiduciary duty, you are not entitled to any deferred compensation at all. Numerous cases have held that an agent who stands in breach of his fiduciary duty of loyalty is not entitled to compensation.

I think you will agree that it is at least unreasonable for you to negotiate with Pat behind our backs to form a rival firm, take firm clients to the rival firm, and then expect to be paid deferred compensation by our firm.

In spite of our deep disappointment with your actions, the partners have elected to proceed with negotiations, should you desire to, rather than simply invite a law suit [sic]. In that spirit, we have prepared calculations of the sums which would otherwise be due to you, under the employment agreement and the stock redemption agreement, but for your breaches of fiduciary duty.

If you wish to proceed with a negotiated disposition of these issues, we would expect you to reciprocate and prepare an accounting for us of all monies received or billed by your new firm for work which was initiated at our firm. ***”

Nagle took the position that neither he nor N & H was liable to NCK for any income he derived from former clients of NCK, with the exception of one case. He agreed to account for the income he received for that one case. He also contended that NCK was not entitled to any damages stemming from Higgins’ leaving NCK. He therefore refused to prepare the accounting that NCK requested.

Nagle, Higgins, and N & H filed a declaratory judgment action against NCK, seeking a declaration that (1) N & H may continue to represent former clients of NCK; (2) neither Nagle, Higgins, nor N & H has an obligation to account to NCK for fees earned from former clients of NCK; (3) NCK is obligated to account to Nagle for money owing under the compensation provision of the employment agreement and under the stock redemption agreement; (4) NCK’s refusal to account is vexatious and willful; and (5) NCK should pay interest from the date it refused to account for money owing under the employment and stock redemption agreements. Defendants moved to compel arbitration on the ground that the' dispute fell under the arbitration clause of the employment agreement.

In opposition to defendants’ motion, plaintiffs argued that the dispute was outside the scope of the arbitration clause because the dispute involved N & H, which was not a party to the arbitration agreement, and issues that were beyond the scope of the employment and stock redemption agreements. The trial court agreed with plaintiffs and denied NCK’s motion.

After the trial court entered its order denying defendants’ motion to compel arbitration, defendants filed their answer to plaintiffs’ complaint. They also filed a document waiving and releasing any claims that they might have had against Higgins, N & H, and any claims against Nagle for forming a business relationship with Higgins. They reserved their claims against Nagle for breach of loyalty in appropriating unfinished firm business for his own benefit.

We first note that although this appeal is not from a final order, we have jurisdiction under Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)) because a motion to compel arbitration is analogous to a motion for injunctive relief. Robert A. Besner & Co. v. Lit America, Inc. (1991), 214 Ill. App. 3d 619, 622-23; J &K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 667.

The Uniform Arbitration Act (the Act) (Ill. Rev. Stat. 1991, ch. 10, par. 101 et seq.) governs the interpretation and enforcement of arbitration agreements. “The Act embodies a legislative policy favoring enforcement of agreements to arbitrate future disputes.” (Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr (1988), 124 Ill. 2d 435, 443.) At a hearing to compel arbitration, the only issue for the trial court is whether an agreement exists to arbitrate the dispute in question. Nelson v. Roger J. Lange & Co. (1992), 229 Ill. App. 3d 909, 911; J&KCement, 119 Ill. App. 3d at 669.

Defendants are correct that the arbitration clause in this case, which provides that all claims “arising out of, or relating to” the agreement shall be settled in arbitration, is considered a “generic” arbitration clause. (Johnson v. Baumgardt (1991), 216 Ill. App. 3d 550, 558.) Parties who enter into agreements containing such “generic” arbitration clauses are obligated to arbitrate any dispute that arises under the agreement. Johnson, 216 Ill. App. 3d at 559; Ill. Rev. Stat. 1991, ch. 10, par. 101.

On the other hand, “[t]he parties to an agreement are bound to arbitrate only those issues which by clear language and their intentions expressed in the language show they have agreed to arbitrate.” (Rauh v. Rockford Products Corp. (1991), 143 Ill. 2d 377, 387; see also Johnson, 216 Ill. App. 3d at 558.) By the same token, “persons not parties to an arbitration agreement cannot be compelled to participate in arbitration.” Mid-America Regional Bargaining Association v. Modern Builders Industrial Concrete Co. (1981), 101 Ill. App. 3d 83, 86.

Plaintiffs argue that arbitration is not appropriate in this case because the core of the dispute does not concern NCK’s obligation to Nagle under either the employment agreement or the stock redemption agreement. According to plaintiffs, the calculation of Nagle’s entitlements under those agreements is straightforward and NCK does not dispute the calculations. Plaintiffs claim, however, that the real dispute concerns plaintiffs’ liability to NCK for starting a rival firm and doing business with former clients of NCK. They contend that this dispute does not fall within the arbitration clause.

A dispute concerning whether Nagle breached a fiduciary duty arguably falls within the scope of the arbitration clause in the employment agreement. A generic arbitration clause in an employment contract is broad enough to encompass any dispute which concerns Nagle’s employment with NCK or his termination thereof, including the issue of breach of fiduciary duty. Atkins v. Rustic Woods Partners (1988), 171 Ill. App. 3d 373, 378.

Further, the fact that the dispute involves multiple parties, some of which are not subject to binding arbitration, does not persuade us that the arbitration provision should be ignored. The fifth district case

that denied arbitration in a multiparty situation, J.F. Inc. v. Vicik (1981), 99 Ill. App. 3d 815, 820, has been criticized and questioned by other districts, including our own. (See M.D. Building Material Co. v. 910 Construction Venture (1991), 219 Ill. App. 3d 509, 519; Kurland Steel Co. v. Carle Foundation Hospital (1989), 185 Ill. App. 3d 624, 627; J & K Cement, 119 Ill. App. 3d at 674-75.) In J & K Cement, this court found that, even in a multiparty lawsuit in which all parties are hot subject to arbitrating their disputes, arbitration is the favored policy in Illinois despite the existence of claims by third parties. (J & K Cement, 119 Ill. App. 3d at 679.) The J & K Cement court further reasoned:

“Parties agree to broad arbitration clauses *** specifically to encompass disputes which are not foreseeable at the time of contracting and expect that such agreements will be specifically enforceable in a court action. To deny [the] motion to compel arbitration here would deny parties the right to their contractually chosen method of dispute resolution. We are not prepared to ignore the policy favoring arbitration simply because of the presence of multiple parties. Similarly, we believe the drafters of the Uniform Arbitration Act anticipated multiparty problems and intended that arbitration agreements nonetheless be enforced in such situations.” J & K Cement, 119 Ill. App. 3d at 682.

Normally, we would stay that portion of the action adjudicating arbitrable issues that are severable from nonarbitrable issues pursuant to section 2(d) of the Uniform Arbitration Act (Ill. Rev. Stat. 1991, ch. 10, par. 102(d)) and allow the continued adjudication of nonarbitrable issues. (See First Condominium Development Co. v. Apex Construction & Engineering Corp. (1984), 126 Ill. App. 3d 843, 849; J & K Cement, 119 Ill. App. 3d at 682.) However, in an answer filed after NCK’s notice of appeal was filed, NCK released Higgins and N & H from liability, focusing the issues for arbitration on the disputes between Nagle & NCK. Defendants argue that the waiver and release of claim that they executed in plaintiffs’ favor renders moot any dispute that NCK had with Higgins and N & H. Plaintiffs argue that we cannot consider the waiver and release of claim because that document was not before the trial court.

Defendants are correct that we cannot review issues once circumstances have rendered the controversy underlying those issues moot, even when those circumstances occurred after the order appealed from. (Harry W. Kuhn, Inc. v. County of Du Page (1990), 203 Ill. App. 3d 677, 685.) We take judicial notice of the answer and waiver filed by defendants releasing all claims “it may have to any set-offs [sic] to Nagel’s right to payment under the Stock Redemption Agreement based upon Nagel’s breaches of fiduciary duty.” Defendants also waived and released any claims for setoff based on Nagle forming a rival partnership. Finally, defendants also waived and released all possible claims against Higgins and N & H.

In the waiver and release of claim, defendants contend that their only claim is that “Nagle *** breached his fiduciary duty of loyalty and good faith arising out of his Employment Agreement with, and ownership of, [NCK] by appropriating unfinished firm business of [NCK] for his own benefit by diverting said unfinished firm business through [N & H], a firm which Nagle formed prior to leaving [NCK] and which Nagle caused to be incorporated on or about March 13, 1992.” Defendants also provided a full accounting to Nagle under the stock redemption agreement. In defendant’s own words, “[t]he only dispute between Defendants and Nagle is Nagle’s claimed right to compensation under the Employment Agreement, and Defendants^] contention that Nagle breached his fiduciary duty arising out of the Employment Agreement.”

Pursuant to our authority under Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), we accept defendants’ answer and waiver and release of claims, in effect, as a dismissal with prejudice. (See Messenger v. Rutherford (1970), 130 Ill. App. 2d 407, 414 (allegation in defendant’s amended answer that he owed a debt sought in plaintiffs’ complaint was a judicial admission and was conclusive against the pleader).) Thus, the only issues that are left to be resolved are (1) the amount Nagle is entitled to under the stock redemption agreement; (2) the amount Nagle is entitled to under the employment agreement; (3) whether Nagle is entitled to interest on monies owed under the employment and stock redemption agreements; and (4) whether Nagle breached his fiduciary duty to NCK by appropriating unfinished firm business.

We believe the last issue is limited to Nagle accounting for work performed by NCK for which Nagle, either individually or through N & H, received compensation. Nagle agreed to account for those situations in a correspondence of July 8, 1992, attached to the complaint and believes that there is only one file that qualifies as work performed by NCK which resulted in income for N & H. However, the number of files that qualify is to be determined by the arbitrator. N & H and Higgins do not have legal interests in this dispute simply because each may have monetarily benefitted from Nagle’s alleged breach of fiduciary duty.

In their brief, plaintiffs argue that the declaratory judgment action exists to determine that N & H can exist as a “rival” firm; that NCK may not procure monetary compensation for lost profits for the loss of Higgins; and that N & H need not pay NCK for work N & H performed after a client fired NCK. We hold that NCK has waived any possible claim based upon these issues. Thus, the trial court need not decide these nonarbitrable issues in plaintiffs’ declaratory judgment complaint.

We have already determined that an employee’s alleged breach of fiduciary duty is arbitrable when an employment agreement contains a generic arbitration clause. (Atkins, 171 Ill. App. 3d at 378.) We also find that the arbitrator should decide whether the stock redemption agreement is incorporated into the employment agreement such that the arbitration clause applies to issues related to the stock redemption agreement.

When parties enter into an agreement which has a generic arbitration clause, that arbitration clause covers a dispute arising under a subsequent agreement between the same parties as long as the original agreement and the subsequent one concern the same subject matter. (A.E. Staley Manufacturing Co. v. Robertson (1990), 200 Ill. App. 3d 725, 730-31.) In Staley, an executive entered into an agreement with his employer providing for retirement benefits. This agreement contained a generic arbitration clause. (Staley, 200 Ill. App. 3d at 726-27.) Subsequently, the executive entered into an additional agreement with his employer providing for supplemental retirement benefits. The second agreement contained no arbitration clause. A dispute arose concerning the employer’s obligation under the supplemental retirement benefits agreement. (Staley, 200 Ill. App. 3d at 728.) The reviewing court determined that the subject matter of both agreements was the same; both agreements concerned “benefits to be afforded to defendant in the event of his retirement or termination.” (Staley, 200 Ill. App. 3d at 730.) The court further found that the agreements were not separate and distinct, but that they had to be read in conjunction with each other. (Staley, 200 Ill. App. 3d at 731.) The court held, therefore, that under the broad scope of the generic arbitration clause, a dispute arising under the second contract was arbitrable. Staley, 200 Ill. App. 3d at 731.

The court in Staley relied on its prior decision in Ozdeger v. Altay (1978), 66 Ill. App. 3d 629. In Ozdeger, plaintiffs entered into a contract with defendants whereby defendants were to act as architects and general contractors in connection with the construction of a house. The contract contained a generic arbitration clause. (Ozdeger, 66 Ill. App. 3d at 630.) Subsequently, the parties orally agreed that defendants would act as carpentry managers. This oral agreement contained no provision for arbitration. A dispute arose with regard to defendants’ performance as architects, general contractors, and carpentry managers. (Ozdeger, 66 At the time of trial, Shawntha Robinson had known Ross for approximately two years and was the mother of his child. She was eight months pregnant when the group went to the “point” on July 4, 1990. They were all traveling in her mother’s car.Ill. App. 3d at 630.) The court held that the entire dispute, including the dispute arising out of defendants’ performance as carpentry managers, was arbitrable. (Ozdeger, 66 Ill. App. 3d at 631.) The court reasoned that the carpentry contract was part of the same general agreement to build plaintiff’s house as the original contract and, therefore, the dispute over the carpentry management “arose out of or related to” the agreement which contained the arbitration clause. Ozdeger, 66 Ill. App. 3d at 632-33.

In this case, the employment agreement described Nagle’s duties at the firm. Under the employment agreement, Nagle was to act as attorney and as assistant secretary for the firm. The employment agreement also provided that if Nagle’s employment with the firm terminated, Nagle would receive specified deferred compensation for accounts receivable on which he had worked. Nagle subsequently entered into the stock redemption agreement as a shareholder of the firm. Section 2 of the agreement provided that if a shareholder terminated his employment with the firm, the firm would buy his shares.

Defendants argue that because the stock redemption agreement refers in section 2 to the shareholder’s employment with the firm, Nagle’s rights under the stock redemption agreement must be read in conjunction with the employment agreement. According to defendants, therefore, because both agreements concern Nagle’s employment with the firm, the arbitration clause in the employment agreement covers a dispute under the stock redemption agreement.

The two agreements in this case, however, are not as closely connected as were the agreements in Staley and Ozdeger. In Staley, both agreements concerned the executive’s retirement benefits, and the second agreement, by its terms, was supplemental to the first. (Staley, 200 Ill. App. 3d at 728.) In Ozdeger, the second agreement was part of a general agreement concerning the construction of a house. (Ozdeger, 66 Ill. App. 3d at 632.) In this case, the employment agreement concerns Nagle’s rights and obligations as an employee of the firm, and the stock redemption agreement concerns his rights and obligations as a shareholder in the firm.

The extent to which the stock redemption agreement depends on, or is interrelated with, the employment agreement is unclear from the record before us. Our supreme court has recently held that “when the language of an arbitration clause is broad and it is unclear whether the subject matter of the dispute falls within the scope of [the] arbitration agreement, the question of substantive arbitrability should initially be decided by the arbitrator.” (Donaldson, 124 Ill. 2d at 447-48.) The arbitrator, not the court, is the entity designated to interpret ambiguities in the contract. (Donaldson, 124 Ill. 2d at 448.) Therefore, we conclude that the question of whether the arbitration clause in the employment agreement covers disputes under the stock redemption agreement is itself arbitrable.

For the foregoing reasons, we reverse the order of the circuit court denying defendant’s motion to compel arbitration and remand for further proceedings. The arbitrator shall determine (1) the amount Nagle is entitled to under the employment agreement, including whether Nagle is entitled to interest; (2) whether Nagle breached his fiduciary duty in appropriating unfinished firm business of NCK through N & H, which is limited to a determination of the amount owed to NCK for unpaid work it performed for a client before the client fired NCK and hired N & H; and (3) whether the issue of compensation under the stock redemption agreement is arbitrable, and if so, what amount is owed to Nagle under the stock redemption agreement, including whether Nagle is entitled to interest. We further hold that all other issues in plaintiffs’ declaratory judgment complaint are moot because defendants forever have waived and released any possible claims pertaining to those issues. As such, because the only issues remaining in plaintiffs’ declaratory judgment complaint are arbitrable, pursuant to section 2(d) of the Uniform Arbitration Act, the declaratory judgment action is stayed pending the decision of the arbitrator. See Contract Development Corp. v. Beck (1991), 210 Ill. App. 3d 677, 679.

Reversed and remanded.

GEIGER and DOYLE, JJ., concur.