text:
    WOOD RIVER AREA DEVELOPMENT CORPORATION, on Behalf of Itself and Other Persons and Corporations Similarly Situated, Plaintiffs-Appellees, v. GERMANIA FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellee (Marvin Rochleau et al., Objecting Class Members, Plaintiffs-Appellants).
    Fifth District
    No. 5—88—0297
    Opinion filed June 1, 1990.

      Edward T. McCarthy, of Edwardsville, for appellants Donald G. Soffer and Pearl Soffer.
    L. James Struif, of Alton, for appellants Marvin Rochleau and Doris Rochleau.
    Steven N. Mottaz, of Thomas, Mottaz, Eastman & Sherwood, of Alton, and Robert M. Lucy and Mark S. Deiermann, both of Bryan, Cave, McPheeters & McRoberts, of St. Louis, Missouri, for appellee Germania Federal Savings and Loan Association.
    John Dale Stobbs and James S. Sinclair, both of Stobbs & Sinclair, of Alton, for appelle Wood River Area Development Corporation.
   JUSTICE HOWERTON

delivered the opinion of the court:

“Dragged out of the litigative attic at half-century intervals to deal with exotic cases of traveling preachers and bankrupt fraternal lodges, the class suit, as it had come to be called, was clearly good for something, even if no one could quite figure out what.” Yeazell, From Group Litigation to Class Action, Part II: Interest, Class, and Representation, 27 UCLA L. Rev. 1067, 1098 (1980).

Of course, class actions are good for those cases in which they are appropriate; indeed, the issue here is whether a class action is appropriate in this case.

There is, however, a most crucial distinction between a class suit and a suit where numerous parties are joined for trial. In the class suit, each class member gives up the right to conduct and control his own case, even though each class member is bound by the outcome, bound without his day in court. In contrast, where parties have been joined, each party conducts and controls his own case, and the outcome binds no one else. This is no small difference, and this difference should always be kept in mind in deciding between certifying a class on the one hand, or joining parties, on the other: “A class suit works best when persons are clothed in a sort of anonymity and lost in the crowd. When they take on significant characteristics as individuals, they had better be in court.” Z. Chafee, Some Problems of Equity 215 (1950) (hereinafter Chafee).

We hold that 21 members do not render this proposed class “so numerous that joinder of all members is impracticable” (Ill. Rev. Stat. 1987, ch. 110, par. 2—801(1)), and reverse and remand for decertification as well as for further proceedings.

Wood River Area Development Corporation (Wood River) filed a multicount complaint against Germania Federal Savings and Loan Association (Germania), including a class-action count which alleged that Wood River was 1 of 21 commercial borrowers that had signed loan agreements with Germania by which Germania unilaterally was allowed to raise interest rates.

The circuit court of Madison County certified the class; three members opted out.

Wood River and Germania negotiated a proposed settlement that would bind all class members, including plaintiffs, Donald G. Soffer, Pearl Soffer, Marvin Rochleau, and Doris Rochleau.

Plaintiffs appeared at the settlement hearing and objected to the settlement.

The Soffers not only objected to the settlement, but also objected to being members of the class, and petitioned to intervene individually.

The Rochleaus asked for a continuance, moved to be excluded from the class, moved for decertification of the class, and objected to the proposed settlement as being unfair.

All motions by the Soffers and the Rochleaus were denied, and the circuit court entered judgment on the settlement of the class action claim.

On appeal, numerous issues are raised, but we address only the issue of class certification, as it is dispositive of the entire appeal.

I

THE HISTORY OF CLASS ACTION PRACTICE

The class action is a seventeenth-century invention created by English chancery courts to cope with disputes between such groups as rural tenants and landlords, and parishioners and parsons. (See, e.g., How v. Tenants of Bromsgrove (1681), 1 Vern. 22, 23 Eng. Rep. 277; Brown v. Vermuden (1676), 1 Ch. Cas. 272, 22 Eng. Rep. 796.) Because each tenant or parishioner had a similar interest at stake, it was economical to settle common questions of law and fact in a single chancery suit. Further, because many were often people of small means, they welcomed the opportunity to pool their resources and allow their trusted leaders to champion their cause. In these class-action case precursors, the parties were interested in a single piece of property, or the tithe, or the village common. English judges then slid easily from the church and the village common to the joint-stock company and the financial syndicate, extending the rules to include them. Still, the class action was one that involved a multitude, each with a common interest. Chafee, at 201-02, 212.

Imported to the United States, the class action was used in Federal courts for much the same purposes.

Justice Douglas, joined by Justices Brennan and Marshall in a partially dissenting opinion, perhaps said best the true purpose of class actions, when he said:

“I think in our society that is growing in complexity there are bound to be innumerable people in common disasters, calamities, or ventures who would go begging for justice without the class action but who could with all regard to due process be protected by it. ***
The class action is one of the few legal remedies the small claimant has against those who command the status quo. I would strengthen his hand with the view of creating a system of law that dispenses justice to the lowly as well as to those liberally endowed with power and wealth.” Eisen v. Carlisle & Jacquelin (1974), 417 U.S. 156, 185-86, 40 L. Ed. 2d 732, 753, 94 S. Ct. 2140, 2156-57 (Douglas, J., dissenting).

No matter how refined, how revised, or how evolved this flashy import becomes, the goal of the class action remains the same — justice for the lowly, the tenants, the parishioners, the multitudes.

II

CLASS ACTION PRACTICE IN ILLINOIS

Class actions in Illinois are governed by section 2—801 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—801) (formerly section 57.2 of the Civil Practice Act). It provides:

“§2 — 801. Prerequisites for the maintenance of a class action. An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representative party of the class only if the court finds:
(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy.” Ill. Rev. Stat. 1987, ch. 110, par. 2-801.

If the prerequisites of section 2—801 are not satisfied, a class action is not proper. Kulins v. Malco, A Microdot Co. (1984), 121 Ill. App. 3d 520, 459 N.E.2d 1038.

The dispositive question is whether 21 members suffice to make a class.

The circuit court found the class to be made up of 21 commercial borrowers. After the class was certified and notice was given, three members opted out.

Wood River has not offered, nor has our research led us to, any Illinois case wherein a class as small as 21 has been found “so numerous” so as to satisfy section 2—801(1).

In contrast, however, a leading Illinois case has held that 46 members were not enough to maintain a class action. (Board of Education of Community Unit School District 201-U v. Pomeroy (1977), 47 Ill. App. 3d 468, 362 N.E.2d 55.) Pomeroy says that “ ‘[representation by a few on behalf of many as a device to conclude the rights of the absent parties must be regarded by the courts as conduct requiring close and vigilant scrutiny.’ ” (Pomeroy, 47 Ill. App. 3d at 472, 362 N.E.2d at 59, quoting Reardon v. Ford Motor Co. (1972), 7 Ill. App. 3d 338, 341, 287 N.E.2d 519, 522.) Pomeroy considers class size, convenient access to the courts by each class member and whether the claims are based on separate transactions all as factors in assessing the propriety of certifying a class. This implies pretty clearly that there is no number magic to the creation of a class. No other Illinois case has been found that deals with relatively small numbers.

Because the language of section 2—801(1) is taken verbatim from Federal Rule of Civil Procedure 23(a)(1), and because no Illinois case has been found, Federal case law may be considered as exegetic in deciding whether 21 are so numerous that joinder is impracticable under the Illinois statute. Ill. Ann. Stat., ch. 110, par. 2—801, Historical & Practice Notes, at 90 (Smith-Hurd 1983).

Federal cases establish no bright line. There is no “magic number” below which there cannot be a class, but above which there can. The number of class members is relevant, not determinative. DeMarco v. Edens (2d Cir. 1968), 390 F.2d 836.

One leading scholar has offered the following guideline:

“If the class has more than forty people in it, numerosity is satisfied; if the class has less than twenty-five people in it, numerosity probably is lacking; if the class has between twenty-five and forty, there is no automatic rule and other factors, *** become relevant.” Miller, An Overview of Federal Class Actions: Past, Present, and Future, Federal Judicial Center, at 22 (1977) (hereinafter Miller).

Our research has supported this guideline. See, e.g., Miller v. Motorola, Inc. (N.D. Ill. 1977), 76 F.R.D. 516 (20 aggrieved persons in a class are not so numerous as to make joinder impracticable); Williams v. Wallace Silversmiths, Inc. (D. Conn. 1976), 75 F.R.D. 633, appeal dismissed (2d Cir. 1977), 566 F.2d 364 (37 class members insufficient); McClinton v. Turbine Support, Division of Chromalloy American Corp. (W.D. Tex. 1975), 68 F.R.D. 236 (29 members not enough); Minersville Coal Co. v. Anthracite Export Association (M.D. Pa. 1971), 55 F.R.D. 426 (330 anthracite coal companies “not so numerous”); see also Pomeroy, 47 Ill. App. 3d 468, 362 N.E.2d 55. But see Cypress v. Newport News General (4th Cir. 1967), 375 F.2d 648 (18 Negro physicians denied staff privileges because of race a proper class); Manning v. Princeton Consumer Discount Co. (E.D. Pa. 1975), 390 F. Supp. 320, aff'd (3d Cir. 1976), 533 F.2d 102 (15 consumers sufficient to bring action under Truth in Lending Act).

Since there is no bright line, no magic number, and also since 21 seems relatively close to the gray area, spoken of by Miller, where there is no automatic rule and where other factors become relevant, we feel justified in looking to those other factors.

Where the number of class members is at best fairly small, courts require demonstration of additional reasons why joinder is impracticable. Carr v. New York Stock Exchange, Inc. (N.D. Cal. 1976), 414 F. Supp. 1292.

These additional factors include: (1) the class members’ geographical distribution; (2) the ability to identify and locate the class members; (3) the degree of knowledge and sophistication of the class members and their need for protection; (4) the amount of the claims of the individual class members; and (5) the nature of the cause of action.

1. GEOGRAPHICAL DISTRIBUTION

The geographical distribution of the class members is relevant in determining the practicality of joinder. (DeMarco v. Edens (2d Cir. 1968), 390 F.2d 836.) If the proposed class “is relatively small and the members all live within a particular city or some similarly contained area, it is not unreasonable to expect them to join and a class action probably is unnecessary.” (Miller, at 23.) For example, in Carr v. New York Stock Exchange, Inc. (N.D. Cal. 1976), 414 F. Supp. 1292, a class action was brought on behalf of 100 persons who purchased securities in a brokerage house. The district court held that all plaintiffs except two were residents of the district in which the action was brought, and therefore, joinder was not impracticable.

In comparison, the class members in this case were either residents of Madison County or were doing business there, and all were amenable to service of process in Madison County.

2. EASE OF IDENTIFICATION AND LOCATION

Where the class number is small and each of the class members can be easily identified, located, and informed of the pendency of the action, joinder, rather than a class action, is appropriate. Doe v. Charleston Area Medical Center, Inc. (4th Cir. 1975), 529 F.2d 638; Murray v. Norberg (D.R.I. 1976), 423 F. Supp. 795.

During discovery, Germania produced a complete list of the commercial borrowers along with their addresses. Therefore, each class member is easily identifiable and each is easily able to be located.

3. KNOWLEDGE AND SOPHISTICATION

The degree of knowledge and sophistication of the class members along with their need for protection is also a consideration in determining whether a class action is appropriate. Gordon v. Forsyth County Hospital Authority, Inc. (M.D.N.C. 1976), 409 F. Supp. 708, modified (4th Cir. 1976), 544 F.2d 748; Carr v. New York Stock Exchange, Inc. (N.D. Cal. 1976), 414 F. Supp. 1292.

Dolgow v. Anderson (E.D. N.Y. 1968), 43 F.R.D. 472, 484-85, said it well:

“The class action is particularly appropriate where those who have allegedly been injured ‘are in poor position to seek legal redress, either because they do not know enough or because such redress is disproportionately expensive.’ [Citation.] Its ‘historic mission’ has been to ‘[take] care of the smaller guy.’ Statement of Professor Ben Kaplan, Reporter of the new Rules, quoted in Frankel, Amended Rule 23 From A Judge’s Point of View, 32 Antitrust L.J. 295, 299 (1966).” (Emphasis added.)

Here, the proposed class was not made up of the “smaller guy.” Instead, the class, for the most part, was composed of corporate, commercial borrowers. Even Wood River, both in its brief and in oral argument, conceded that objectors Donald G. Soffer and Marvin Rochleau were “two businessmen who are astute,” and were “sophisticated business borrowers.”

We believe that these commercial borrowers were knowledgeable, sophisticated and in a position to seek legal redress individually.

We do not believe that denying class certification, in this instance, would be “almost equivalent to closing the door of justice” on these commercial borrowers. See Weeks v. Bareco Oil Co. (7th Cir. 1941), 125 F.2d 84, 90.

4. SIZE OF INDIVIDUAL CLAIMS

The size of the individual class member’s claims is also relevant.

“If [the claims] are small, the chances are that there is impracticability of joinder, because people are not likely to become involved in litigation if only a small amount of money is at stake. On the other hand, if the class is composed of people with very large claims, joinder is far more feasible economically and impracticability will exist only if the group is larger.” Miller, at 23.

The loans and the interest amounts on them, here, were sizable, with original balances ranging from $120,000 to $1,050,000. At the time of the interest-rate increase, the loans had account balances ranging from $49,327 to $798,203. These claims are not too small for individual pursuit. See Weeks v. Bareco Oil Co. (7th Cir. 1941), 125 F.2d 84; Swanson v. American Consumer Industries, Inc. (7th Cir. 1969), 415 F.2d 1326, 1333 n.9.

5. NATURE OF THE CAUSE OF ACTION

The nature of the cause of action is a last factor. Cases brought to vindicate constitutional or civil rights, or brought for declaratory and injunctive relief, may result in a relaxation of the requirement for larger numbers. Jenkins v. United Gas Corp. (5th Cir. 1968), 400 F.2d 28; see, e.g., Cypress v. Newport News General (4th Cir. 1967), 375 F.2d 648.

This case was not brought to vindicate a constitutional right. This case champions no civil right. In this case, plaintiffs want money for breach of contract. There is no compelling need for relaxation of the requirement for larger numbers.

Consideration of these additional factors show no demonstration of any reason why joinder is impracticable for this small group.

Whether an action may proceed as a class action is discretionary with the circuit court. On appeal, the circuit court’s decision may not be reversed absent a clear abuse of discretion. McCabe v. Burgess (1979), 75 Ill. 2d 457, 389 N.E.2d 565.

Here, we find that the circuit court abused its discretion when it certified this class. We do not believe that this class was so numerous so as to make joinder impracticable under these circumstances. Therefore, we reverse the circuit court and remand for decertification and further proceedings.

For symmetry, we close as we opened, with a quote from Yeazell.

“Yet somehow, under the pressure of events, courts have fashioned the device into a sporadically effective means of dealing with groups as various as the disgruntled tenantry of the parish of Wem and the victims of refrigerator sales fraud. However untidy the doctrine, that’s not a bad track record for a device no one understands.” Yeazell, From Group Litigation to Class Action, Part II: Interest, Class, and Representation, 27 UCLA L. Rev. 1067, 1121 (1980).

Reversed and remanded.

LEWIS, P. J., and HARRISON, J., concur.

       Although there were originally 23 loans containing the complained-of interest-rate provision, four borrowers had more than one loan. Additionally, some of the loans were paid off prior to class certification. For the purposes of this appeal, we will nonetheless accept the finding of the circuit court that the class was composed of 21 commercial borrowers.


source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
    PAULA M. ROE, Plaintiff-Appellee and Cross-Appellant, v. JODELL CRADDUCK et al., Defendants-Appellants and Cross-Appellees.
    Fifth District
    No. 5—88—0353
    Opinion filed June 4, 1990.

      Brocton Lockwood, of Marion, and William A. Schoreder, of Southern Illinois University School of Law, of Carbondale, for appellant Jodell Cradduck.
    William J. Novick, of Fowler & Novick, of Marion, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Paula Roe, filed a four-count complaint in the circuit court of Williamson County against the defendants, Jodell Cradduck and Delta Health Care Support Systems Foundation. Counts I and II alleged wrongful discharge, count III sought damages for violation of “An Act to permit employees to review personnel records ***” (the Review of Personnel Records Act) (Ill. Rev. Stat. 1987, ch. 48, par. 2001 et seq.), and count IV alleged invasion of privacy. Count III was voluntarily dismissed prior to trial. Pursuant to a motion by defendants, the trial court directed a verdict for defendants on the issue of punitive damages as to count IV. The jury returned a verdict for the defendants on counts I and II, and in favor of Roe on count IV, awarding her $5,000 in damages. Defendants appeal the judgment against them on count IV, and Roe cross-appeals the trial court’s directed verdict on the issue of punitive damages.

Cradduck was the executive director of a day care center which was operated by Delta. Roe was hired by Cradduck as director on July 9, 1984. Beginning in January 1985, Cradduck began receiving complaints from parents and teachers that Roe was losing control and becoming hysterical with the children. Some of these complaints involved Roe’s administering corporal punishment to her own two children, who were students at the day care center.

On May 2, 1985, Roe did not report to work because of illness, but dropped her children off at the center. Several hours later, she received a call from the school indicating that her children were misbehaving. Roe returned to the school and took her children out to the parking lot, where she spanked them.

Cradduck learned of the spanking incident on May 6, 1985, from Roe herself. Cradduck had met with Roe to tell her things were not working out and to give her the option of resigning. After talking with Roe, she agreed to arrange a meeting between Roe and the board of directors.

The next day, Cradduck began receiving calls from parents who were concerned that Roe had spanked their children. Evidence indicates that these calls were prompted when, in an effort to recruit support, Roe contacted her sister and another friend, who in turn contacted other parents and told them Roe was being discharged for spanking her own children. Cradduck then mailed a letter to the parents of the children enrolled in the preschool, indicating that Roe had spanked only her own children and that she had been discharged because of the incident. Cradduck was interviewed by the Southern Illinoisan newspaper for an article which appeared in the paper on May 10, 1985. In the article, Cradduck indicated that the school was not administering corporal punishment, that Roe had spanked only her own children, and that she had been discharged.

The appeal and cross-appeal in this case deal solely with count IV of the complaint, the allegation of invasion of privacy. Defendants appeal the $5,000 judgment in Roe’s favor, and Roe appeals the trial court’s directed verdict on the issue of punitive damages.

Professor William Prosser has delineated four distinct types of invasion of privacy, and his approach has been adopted by the Restatement of Torts. The four types are: (1) intrusion on the seclusion of another (Restatement (Second) of Torts §652B, at 378 (1977)); (2) appropriation of another’s name or likeness (Restatement (Second) of Torts §652C, at 380 (1977)); (3) publicity given to private life (Restatement (Second) of Torts §6521), at 383 (1977)); and (4) publicity placing a person in false light (Restatement (Second) of Torts §652E, at 394 (1977)). (See also W. Keeton, Prosser & Keeton on Torts §117 (5th ed. 1984).) The Restatement’s categorization was implicitly recognized by our supreme court in Lovgren v. Citizens First National Bank (1989), 126 Ill. 2d 411, 534 N.E.2d 987.

Invasion of privacy was first recognized as an actionable wrong in Illinois in Eick v. Peak Dog Food Co. (1952), 347 Ill. App. 293, 106 N.E.2d 742. Eick, and the cases that followed it, dealt with the “appropriation of name or likeness” category. (See also Annerino v. Dell Publishing Co. (1958), 17 Ill. App. 2d 205, 149 N.E.2d 761.) Our supreme court recognized the appropriation category of invasion of privacy in Leopold v. Levin (1970), 45 Ill. 2d 434, 259 N.E.2d 250. The “false light” category was recognized in Lovgren (126 Ill. 2d at 417, 534 N.E.2d at 989). Our supreme court declined in Lovgren to settle the issue of whether the “intrusion on seclusion” category is actionable in Illinois, and there remains a conflict between the districts of the appellate court as to whether this cause of action is recognized. (See Melvin v. Burling (3d Dist. 1986), 141 Ill. App. 3d 786, 490 N.E.2d 1011 (recognizing cause of action); Kelly v. Franco (1st Dist. 1979), 72 Ill. App. 3d 642, 391 N.E.2d 54 (not recognizing the cause of action); Bank of Indiana v. Tremunde (5th Dist. 1977), 50 Ill. App. 3d 480, 365 N.E.2d 295 (impliedly recognizing cause of action); Bureau of Credit Control v. Scott (4th Dist. 1976), 36 Ill. App. 3d 1006, 345 N.E.2d 37 (not recognizing cause of action).) The final category of invasion of privacy, public disclosure of private facts, was recognized as a cause of action in Midwest Glass Co. v. Stanford Development Co. (1975), 34 Ill. App. 3d 130, 339 N.E.2d 274. It is the “public disclosure of private facts” type of invasion of privacy that we are concerned with in this case. Midwest Glass is the only Illinois case to date which deals specifically with this type of invasion of privacy, however, and therefore there is little guidance as to the elements of the tort.

Count IV of Roe’s complaint was based on section II, paragraph A, of the day care center’s Personnel Policies Manual; provisions of the Child Care Act of 1969 (Ill. Rev. Stat. 1985, ch. 23, par. 2211 et seq.), and related Department of Children and Family Services (DCFS) regulations; and provisions of the Review of Personnel Records Act.

Addressing the last first, Roe relied in part on section 7(1) of the Review of Personnel Records Act, which provides that an employee’s disciplinary record cannot be disclosed without his or her written consent. (Ill. Rev. Stat. 1987, ch. 48, par. 2007(1).) We need not address the merits of this argument, however, as the Review of Personnel Records Act has been declared unconstitutional. Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 515 N.E.2d 1222.

Roe also relied on DCFS’s rule, subchapter e, Requirements for Licensure; Part 407, Licensing Standards for Day Care Centers. Section 407.32(c) provides that a day care facility shall maintain records on all employees. (89 Ill. Adm. Code §407.32(c) (1985).) Section 407.32(m) provides that authorized Department representatives shall have access to the records and reports and that all persons who have such access shall respect their confidential nature. (89 Ill. Adm. Code §407.32(m) (1985).) Section 407.33(a) provides that day care center personnel shall respect the confidential nature of the child and personnel records. (89 Ill. Adm. Code §407.33(a) (1985).) There are no specific provisions in either the Child Care Act or the DCFS regulations governing day care facilities which provide a private cause of action for wrongful disclosure of information contained in an employee’s personnel file. Where not specifically provided for, violation of a statute will give rise to a cause of action if the plaintiff was a member of the class the statute was intended to protect and the harm plaintiff suffered resulted from a hazard the statute was meant to eliminate. (Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231, 507 N.E.2d 1193.) Neither condition exists in this case. The Child Care Act was promulgated to protect children by regulating child care facilities. It was not designed to protect the reputations of employees of covered facilities, and the provisions of the statutes and regulations requiring confidentiality of employee records are incidental to its main purpose. Likewise, the harm Roe has allegedly suffered, injury to her reputation, did not arise from any hazard the Child Care Act was designed to eliminate. While Roe was the mother of two of the children in the facility’s care, her invasion of privacy action is based on her status as an employee, and the private fact disclosed was the disciplinary action taken against her for violating the facility’s rules and regulations banning corporal punishment. An injury to an ex-employee’s reputation is not a hazard the confidentiality section of the Act was designed to eliminate.

The third basis advanced in Roe’s complaint was that the facility’s Personnel Policies Manual provides that employee personnel records will be kept confidential. Roe maintains that she is entitled to rely on the manual and that it gives rise to a legal duty on the defendants’ part not to disclose information contained in an employee’s file. It is important to note that Roe is not alleging that the provisions of the manual were part of her employment contract which the defendants breached. No breach of contract argument was raised in her complaint or on appeal. Instead, she relied on the Personnel Policies Manual as a basis for her tort claim.

In Quinn, the court stated that internal guidelines of a voluntary unincorporated association did not provide a legal duty from which a cause of action for negligence could arise. We believe the situation here is analogous, and Roe has cited no authority holding otherwise.

Defendants also argue that the trial court erred in failing to dismiss count IV of Roe’s complaint because it incorporated three different theories of recovery into a single count in violation of section 2—603(b) of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—603(b); see also Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 384 N.E.2d 91), and that the trial court erred in not directing a verdict in their favor on count IV as Roe failed to show that the disclosure of information was the proximate cause of any damage to her. Having determined that Roe could not have prevailed on the merits of count IV, we need not address these arguments.

On her cross-appeal, Roe argues that the trial court erred in directing a verdict in favor of the defendants on the issue of punitive damages under count IV. Punitive damages may be awarded where torts are committed with fraud, actual malice, or with such gross negligence as to demonstrate a wanton disregard for the rights of others. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) There is no evidence of malice on the defendants’ part, nor can it be said that they acted with wanton disregard for Roe’s privacy. Both the letters to the parents and the interview with the newspaper were prompted by inquiries from parents concerned about whether Roe was administering corporal punishment to their children. It was Roe herself who first publicized the fact that she was discharged for spanking her own children when she called her sister and her friend. The defendants were simply responding to inquiries from parents to assure them that the school was not permitting the use of corporal punishment. The evidence presented, when viewed in a light most favorable to Roe, is insufficient to show that the defendants acted with malice or wanton disregard, and no verdict so finding could be permitted to stand. Therefore, the trial court properly directed a verdict on the claim for punitive damages. See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504; Del Muro v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 473, 464 N.E.2d 772.

For the reasons set out above, we reverse the judgment of the circuit court of Williamson County with respect to the judgment in favor of Roe on count IV of her complaint and affirm the trial court’s decision directing a verdict for defendants on the punitive damages claim.

Affirmed in part; reversed in part.

WELCH and GOLDENHERSH, JJ., concur.


author: JUSTICE McNAMARA PRESIDING JUSTICE BARRY,

text:
    EDWARD E. BEASLEY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (E & B Coal Company, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5—88—0779WC
    Opinion filed June 7, 1990.

      BARRY, P.J., specially concurring.
    Edward J. Kionka, of Carbondale, and Thomas E Crosby, of Winters, Brewster, Murphy, Crosby & Patchett, of Marion, for appellant.

      William Lemp, of Keefe & DePauli, P.C., of Fairview Heights, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimant, Edward E. Beasley, sought worker’s compensation benefits following an alleged back injury suffered while working for respondent E & B Coal Company. An arbitrator awarded no benefits after finding that claimant failed to prove he sustained accidental injuries arising out of and in the course of his employment by respondent. The Industrial Commission (Commission) upheld the arbitrator’s findings and decision. Claimant appealed.

Judge Howerton of the circuit court of Williamson County found the Commission’s decision was against the manifest weight of the evidence. The court reversed the Commission’s decision and remanded with directions to determine the extent and period of disability.

On remand, the Commission awarded claimant $266.66 per week for life for a total permanent disability, plus $26,010 for medical expenses. Respondent appealed.

Judge Nelson of the circuit court of Williamson County reversed. He found subject-matter jurisdiction was lacking in the matter before Judge Howerton because claimant failed to physically display to the clerk of the circuit court a receipt for payment of the cost of the transcript of the arbitration proceedings. Thus, the court reinstated the original decision of the Commission, awarding no benefits. Claimant now appeals to this court, contending that subject-matter jurisdiction existed and that the evidence mandates a finding that he suffered a compensable injury.

On February 15, 1982, claimant worked as a dragline operator for respondent. Claimant testified that on that day, he and his brother were lifting a 200-pound box when claimant felt a pain in his shoulder and right leg. He continued his work and did not report the injury to respondent.

Ten days later, petitioner saw Dr. Edward Corder, who believed that the condition could be multiple sclerosis, from which claimant’s sister suffered, or amyotrophic lateral sclerosis. Other physicians later diagnosed the condition as a herniated disc, and a discectomy was performed on March 15, 1982. It was then that claimant “first realized that the lifting incident on February 15 was responsible for his condition.” Several weeks later, he notified respondent that the injury was work related.

On September 30, 1982, Dr. Michael Murphy performed a laminectomy. Claimant has not worked since that time. There is no dispute that claimant is permanently and totally disabled.

On May 19, 1983, the arbitrator issued a decision awarding no benefits. On May 2, 1984, the Commission issued a decision affirming the arbitrator’s decision. On July 31, 1984, the Commission entered its written decision.

On August 14, 1984, claimant filed for review with the circuit court. However, he did not file with his review a receipt for the transcript of the arbitration proceedings. On September 27, 1984, claimant filed that receipt, showing that payment had been made on August 16,1984.

On March 26, 1985, Judge Howerton reversed the decision of the Commission, finding it was against the manifest weight of the evidence. The court also denied respondent’s motion to dismiss the appeal for claimant’s failure to comply with the jurisdictional requirements of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.).

On remand, claimant filed a motion pursuant to section 20 of the Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.20) to have him declared a poor person. The Commission granted the petition, relating it back to February 1982.

In its written decision of January 7, 1988, the Commission found that claimant was permanently and totally disabled. The Commission awarded benefits and medical expenses. It denied a claim for rehabilitation.

On September 26, 1988, Judge Nelson found that claimant had failed to perfect the original review into the circuit court, and thus, that all proceedings following the original 1984 decision of the Commission were void.

On appeal, claimant challenges Judge Nelson’s finding that no subject-matter jurisdiction existed.

Section 19(f)(1) of the Act mandates that in its decision the Commission shall determine the amount of probable cost of the record. “[N]o request for a summons may be filed and no summons shall issue unless the party seeking to review the decision of the Commission shall exhibit to the clerk of the Circuit Court a receipt showing payment of the sums so determined to the Secretary or Assistant Secretary of the Commission, except as otherwise provided by Section 20 of this Act.” Ill. Rev. Stat. 1983, ch. 48, par. 138.19(f)(1) (fourth paragraph).

In the present case, the Commission issued a written decision denying benefits on July 31, 1984. Claimant filed for review in the circuit court within 20 days. However, he failed to file with his review “a receipt showing payment” as provided in section 19(f)(1). On September 27, 1984, after the 20-day period had run, claimant filed the receipt. Thus, the circuit court clerk issued the summons prior to claimant’s having exhibited or filed a receipt proving payment of the probable cost of the record on appeal.

Proceedings under the Workers’ Compensation Act are purely statutory, and courts can obtain jurisdiction only in the manner provided by that Act. (Peter H. Clark Lodge No. 483 v. Industrial Comm’n (1971), 48 Ill. 2d 64, 268 N.E.2d 382; Malone v. Industrial Comm’n (1986), 141 Ill. App. 3d 116, 489 N.E.2d 1167.) Thus, statutory requirements for the circuit court’s subject-matter jurisdiction under the Act demand strict compliance. (Arrington v. Industrial Comm’n (1983), 96 Ill. 2d 505, 451 N.E.2d 866.) Proof of the court’s jurisdiction must affirmatively appear in the record. (Arrington v. Industrial Comm’n, 96 Ill. 2d 505, 451 N.E.2d 866.) Absent that proof, no jurisdiction exists. Wabash Area Development, Inc. v. Industrial Comm’n (1981), 88 Ill. 2d 392, 430 N.E.2d 1002.

Claimant has conceded that on March 5, 1985, when Judge Howerton denied respondent’s motion to dismiss for lack of jurisdiction, the circuit court in fact had no jurisdiction. Claimant admits that his failure to exhibit to the clerk a receipt within the 20-day period under section 19(f)(1) deprives the court of subject-matter jurisdiction. See McGehee v. Industrial Comm’n (1987), 160 Ill. App. 3d 618, 513 N.E.2d 1136.

Consequently, at the expiration of the 20-day period the Commission’s decision denying all benefits became conclusive under section 19(f), and the circuit court had no jurisdiction to issue the summons. (Boalbey v. Industrial Comm’n (1977), 66 Ill. 2d 217, 362 N.E.2d 286.) Since the trial court never acquired jurisdiction to review the initial decision of the Commission, the proceedings following the Commission’s decision were nullities. (See Simpson v. Industrial Comm’n (1982), 91 Ill. 2d 452, 440 N.E.2d 94 (20-day period ran prior to petitioner’s filing for review, and thus, everything following Commission’s original decision, including the trial court’s remand order, Commission’s decision on remand, and second trial court order, were all nullities); Chambers v. Industrial Comm’n (1985), 132 Ill. App. 3d 891, 478 N.E.2d 498 (20-day period ran prior to claimant’s filing for review, and therefore, trial court’s remand order, Commission’s second order, and trial court’s confirming order were void for lack of jurisdiction).) Thus, Judge Howerton’s order reversing the Commission’s original decision and remanding with directions to award benefits was void. Similarly, the Commission’s decision on remand, awarding benefits, was void.

Claimant argues however, that whether he “complied with all the technical requirements connected with the payment of that fee [in August 1984] becomes moot” when the Commission declared him a pauper in November 1986 and related the order back to 1982. Thus, he contends the Commission retroactively excused him from the section 19(f)(1) requirements.

We reject claimant’s argument for several reasons.

The appeal process is relatively simple. After receiving the Commission’s decision, an appealing party must complete several tasks within a 20-day time period. First, he must read the portion of the Commission’s decision stating the “amount of the probable cost of the record to be filed as a part of the summons.” (Ill. Rev. Stat. 1983, ch. 48, par. 138.19(f)(1) (fourth paragraph).) Then he must pay that fee to the Commission and obtain a receipt. Next he must bring the receipt to the clerk of the circuit court and “exhibit” it as proof of payment. Without the exhibition of the receipt, the. clerk is prohibited from issuing a summons to the Commission. Ill. Rev. Stat. 1983, ch. 48, par. 138.19(f)(1) (fourth paragraph).

The clerk then issues a summons, which thereby commences the proceeding for review within the 20-day period, triggering the Commission’s duty to certify the record of its proceedings to the circuit court. Ill. Rev. Stat. 1983, ch. 48, par. 138.19(f)(1) (third paragraph).

Section 19(f)(1) refers to the section 20 fee exception in three places. Significantly, those three references all trace back to the time requirement of filing the receipt within the 20-day time period after receiving the Commission’s decision.

Section 19(f)(1) provides that within the 20-day period, “no summons shall issue unless the party *** shall exhibit to the clerk of the Circuit Court a receipt showing payment of the sums *** except as otherwise provided by Section 20 of this Act.” Ill. Rev. Stat. 1983, ch. 48, par. 138.19(f)(1) (fourth paragraph).

Section 19(f)(1) provides that within the 20-day period, the summons shall issue and then “[i]t shall be the duty of the Commission upon such payment, or failure to pay as permitted under Section 20 of this Act, to prepare *** such record.” Ill. Rev. Stat. 1983, ch. 48, par. 138.19(f)(1) (third paragraph).

Conversely, section 19(f)(1) provides that if, within the 20-day period, there is no payment and the summons does not issue, “[t]he Commission shall not be required to certify the record of their proceedings to the Circuit Court [absent such payment] *** except as otherwise provided by Section 20 of this Act.” Ill. Rev. Stat. 1983, ch. 48, par. 138.19(f)(1) (third paragraph).

Thus, in section 19(f)(1), every provision traces back to the 20-day period. Our reading of the statute indicates that section 19(f)’s provision regarding the section 20 waiver of fees also refers back to the 20-day period. To construe the statute otherwise would mean a claimant could file a pauper petition at any time in order to evade the section 19 filing fee requirements.

While it may sometimes be proper on appeal to correct a mistake, it is not permitted to belatedly supply an essential jurisdictional requirement. Claimant here cannot attempt to cure a jurisdictional flaw after the expiration of the 20-day period. His attempt was ineffectual and no jurisdiction was conferred. See Sears, Roebuck & Co. v. Industrial Comm’n (1971), 133 Ill. App. 2d 439, 273 N.E.2d 725 (no jurisdiction where 20-day limit ran before employer filed for review; employer’s later filing of counsel’s affidavit that notice of Commission’s decision was mislaid cannot serve to cure defect retroactively) (cited in Boalbey v. Industrial Comm’n (1977), 66 Ill. 2d 217, 362 N.E.2d 286); see also Fortson v. Industrial Comm’n (1989), 184 Ill. App. 3d 794, 540 N.E.2d 815 (claimant’s pending section 20 motion seeking relief from payment of the record preparation fee did not excuse claimant from compliance with the section 19(f)(1) requirement that the fee be paid before filing for review in the circuit court); Lipkin v. Roxy Cleaners & Laundry, Inc. (Fla. 1953), 67 So. 2d 660 (in worker’s compensation case, party could not attempt to cure failure to name return day for summons in notice of appeal after expiration of time to appeal; no jurisdiction was conferred).

In Village of Glencoe v. Industrial Comm’n (1933), 354 Ill. 190, 188 N.E. 329, the court held that the clerk’s formal written approval of the sureties on the bond was necessary before the circuit court had jurisdiction. Later, in Republic Steel Corp. v. Industrial Comm’n (1964), 30 Ill. 2d 311, 196 N.E.2d 654, the court overruled Glencoe and held that formal written approval of the sureties was not necessary. However, the court in Republic Steel did not disturb the holding in Glencoe that a party cannot go back to the circuit court clerk 10 months after filing an appeal and attempt to cure a jurisdictional defect. During the 10 months prior to that attempt, the trial court had a record showing no jurisdiction and the court “could not by a nunc pro tunc order confer jurisdiction *** on itself. Neither could an affidavit [of the court clerk stating he did in fact approve the bond but merely forgot to sign the endorsement] be made effective [retroactively] for such purpose.” Village of Glencoe, 354 Ill. at 195, 188 N.E. at 332.

Furthermore, the Commission was in an unusual position when it granted the section 20 pauper petition in November 1986. The trial court had already determined that jurisdiction was conferred upon it, notwithstanding claimant’s failure to exhibit the receipt to the court clerk. The trial court then remanded with directions that the Commission award benefits. The Commission is absolutely bound by the circuit court’s directions on remand. It is bound by both the rules of law announced and the directions given by the court. Stockton v. Industrial Comm’n (1977), 69 Ill. 2d 120, 370 N.E.2d 548.

The commissioner hearing the case on remand indicated that the Commission could not address the jurisdiction question.

“RESPONDENT’S ATTORNEY: I would also object to Petitioner’s motion relating a poor person as it goes back to February 28, 1982. I don’t know the exact purpose of the motion, but if it is an attempt to justify not having paid the filing fee or not having filed — .
CLAIMANT’S ATTORNEY: Objection to the argument here.
RESPONDENT’S ATTORNEY: I would like to state my objection.
COMMISSIONER: What’s February of ’82?
RESPONDENT’S ATTORNEY: His motion states that he would like to have this person declared a poor person retroactive to February of ’82. My objection to that is if that’s intended to circumvent the requirements of section 19, in not filing the payment or not filing necessary affidavit, then it’s our position that that would be improper and an attempt to retroactively correct an error in filing and that would be against both the intent of 19 and 20.
COMMISSIONER: Well, I don’t know, that issue really isn’t before me. The proper filing and the jurisdiction, that’s been decided by the Court and they sent the case back for us to decide again. So, you know, certainly that’s not going to be disturbed by the Commission.
RESPONDENT’S ATTORNEY: I just want to renew my objections for purposes of appeal. And also that you know of our objection to his motion pursuant to section 20.
COMMISSIONER: I guess I’m asking you what that has to do, I haven’t looked at the petition pursuant to section 20, frankly I just saw it was here. But let’s go off the record a minute so I can read it. (Off the record discussion was had.)
COMMISSIONER: Back on the record. Do you want to call your witness in support of the petition?
* * *
RESPONDENT’S ATTORNEY: I will again just so I don’t have to keep interrupting, to make my position clear, I just want to state that any poor person petition going retroactively as far as any jurisdictional evidence I object to. I know it’s not your place to decide that but I am just preserving my record on appeal. And also if that is the intent I don’t know why this evidence wasn’t put on before.
CLAIMANT’S ATTORNEY: Excuse me, this speaks for itself and we’re not on appeal.”

Thus, upon presentation of the petition for pauper status, the Commission could not refuse to grant the petition if the financial requirements were met.

Moreover, the Commission’s waiving the fee requirement would have no effect after the time when it no longer has jurisdiction. See Sweitzer v. Industrial Comm’n (1946), 394 Ill. 141, 68 N.E.2d 290 (no petition for review filed, and therefore Commission’s granting extension past 20-day time period was ineffectual).

We recognize that section 20 provides the petition can be approved by the Commission at any time. The Commission can, “before or after any hearing, proceeding or review to any court” be satisfied that the person cannot pay costs. (Ill. Rev. Stat. 1983, ch. 48, par. 138.20.) Moreover, section 20 must permit the approval at any time, because a person can become unable to pay costs, e.g., at the time he seeks review from the Commission’s second decision on remand from the circuit court. Worker’s compensation proceedings often extend for a number of years, during which time many things can happen to affect a claimant’s financial status. We do not believe, however, that this means section 20 can be used to retroactively cure jurisdictional defects.

Notwithstanding our holding that no jurisdiction existed for review of the Commission’s original order, we go on to find that even with jurisdiction, we would hold that the Commission’s original decision to deny all benefits was not against the manifest weight of the evidence, and thus, would not be disturbed by this court. See Odie v. Industrial Comm’n (1982), 88 Ill. 2d 514, 431 N.E.2d 374.

Most notably, as to causal connection between the disability and any possible work accident, Dr. Welch opined that the cause was undetermined. Neither Dr. Corder nor Dr. Welch was given a history of injury from claimant. Respondent was not informed of an injury. Dr. Kuhlman, an orthopedic surgeon, testified that the ankle clonus which now disables claimant was “totally unrelated” to the alleged injury of February 15, 1982. Instead, the clonus was due to a progressive neurological problem resulting from an underlying degenerative condition of the nervous system. While Dr. Murphy found some causal connection, the Commission was not required to accept his opinion over that of the other medical evidence.

For the foregoing reasons, the judgment of Judge Nelson of the circuit court of Williamson County finding that subject-matter jurisdiction was lacking is affirmed, and the original order of the Industrial Commission awarding no benefits, is reinstated.

Judgment affirmed.

WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.

PRESIDING JUSTICE BARRY,

specially concurring:

I agree with my colleagues’ determination that petitioner’s failure to comply with section 19(f)(1) of the Workers’ Compensation Act mandates an affirmance of the circuit court’s disposition here. The facts presented in this case fall far short of the “unique circumstances” that inspired my dissent in Fortson v. Industrial Comm’n (1989), 184 Ill. App. 3d 794, 540 N.E.2d 815. In Fortson, it was clear that petitioner had made bona fide efforts to timely comply with sections 19 and 20, but was thwarted in her efforts by circumstances outside her control. By contrast, the exception petitioner Beasley seeks to establish would effectively obviate the 20-day jurisdictional limitation, as noted by the majority in this case.

In my opinion, this court’s resolution of the jurisdictional question amply disposes of the appeal. The majority’s gratuitous comments thereafter upon the merits of the Commission’s original decision to deny compensation are pure obiter dieta to which I do not subscribe.


author: PRESIDING JUSTICE LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROGER A. ARKEBAUER, Defendant-Appellee.
    Fifth District
    No. 5—89—0077
    Opinion filed June 5, 1990.

      Michael Kiley, State’s Attorney, of Shelbyville (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor's Office, of counsel), for the People.
    Michael B. Metnick, D. Peter Wise, Diana N. Cherry, and Richard D. Frazier, all of Metnick & Barewin, of Springfield, for appellee.
   PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

The State appeals from an order suppressing the defendant’s, Roger A. Arkebauer’s, statements. In issue is whether the circuit court’s determination that the defendant’s statements were involuntary because the statements were induced by the promise of immunity was against the manifest weight of the evidence.

Before considering the propriety of the circuit court’s suppression of the defendant’s statements, we must first address the defendant’s motion to strike portions of the State’s brief which was raised in the defendant’s brief. The defendant contends that portions of the State’s statement of facts must be stricken from its brief as the facts contained on numerous pages therein are from documents not properly of record, i.e., facts that were obtained from the grand jury transcript, from police reports, and from transcripts of tape recordings of court-authorized overhears. We decline to grant the defendant’s motion as the material was properly included in the record on appeal; however, we will not rely upon this evidence in our determination of the issue presented. People v. Brackett (1986), 144 Ill. App. 3d 442, 494 N.E.2d 610.

In this case, the defendant was promised on January 15, 1988, that he would not be prosecuted for the offenses of solicitation to commit murder (Ill. Rev. Stat. 1987, ch. 38, par. 8—1(a)) and conspiracy to commit murder (Ill. Rev. Stat. 1987, ch. 38, par. 8—2(a)) by the assistant State’s Attorney for Macon County and by the Illinois State Police, if he would cooperate in the investigation of Raymond Ruhl’s plot to murder his wife. Subsequently, on April 12, 1988, a bill of indictment for these offenses was returned against the defendant in Shelby County. The defendant filed a motion to suppress several statements given to the Illinois State Police and the Macon County assistant State’s Attorney as a result of his agreement with the Macon County assistant State’s Attorney, which was granted by the circuit court. It is from this order of the court that the State appeals.

At the hearing on the motion to suppress the defendant’s statements, the Honorable Jerry Patton, circuit judge for the Sixth Judicial Circuit, testified that on January 15, 1988, at about 2:30 p.m., it came to his attention by way of a telephone call from either Jack Ahola or Gerry Sheehy, that an order for an eavesdrop was needed. Sometime later, Judge Patton met with Officer McClearen, Jack Ahola, the defendant, and possibly Officer Bensyl and Gerry Sheehy. At this meeting, the judge was presented with two complaints, one for a search warrant of Raymond Ruhl’s residence and one for a court-authorized eavesdrop. Judge Patton inquired as to why the wiretap was brought in Macon County as the earlier wiretap had been brought in Champaign County, and the judge was told that time was of the essence for the eavesdrop and that the defendant worked in Decatur, Macon County, Illinois. The defendant was introduced to the judge, and the judge inquired of the defendant as to whether he understood his consent to the eavesdrop to which the defendant responded affirmatively. Neither the judge nor anyone in the judge’s presence discussed granting immunity to the defendant at this time. The judge admitted that he had no knowledge of any statements that were made to the defendant outside of his presence. As a result of the defendant’s and Officer McClearen’s statements, Judge Patton issued a search warrant and an order for an eavesdrop.

Jack Ahola testified that he was the assistant State’s Attorney in charge of the criminal division for Macon County, Illinois. According to Ahola, at about 7 a.m. on January 15, 1988, he met with Agents Mc-Clearen and Bensyl in his office to discuss this case. The agents were aware that the defendant was a pivotal figure in a proposed murder plot, and the decision was made that the defendant should be brought in and asked to give information which would enable the agents to arrest Raymond Ruhl. At this meeting, Ahola and the agents discussed making a deal with the defendant wherein he would not prosecute the defendant, if the defendant cooperated. The details of the agreement with the defendant were not discussed among the three of them, but Ahola stated that it was thought that the defendant could provide information to obtain an eavesdrop order, a search warrant and an arrest warrant.

After the meeting, the agents left Ahola’s office and went to Caterpillar Tractor Company to pick up the defendant. The agents brought the defendant back to Ahola’s office at approximately 9 a.m. Ahola told the defendant that if the defendant cooperated, “we” would not prosecute him, and the defendant agreed to help. Ahola denied that he promised the defendant immunity, and he stated that he specifically never discussed transactional immunity with the defendant.

Ahola informed the defendant that they were investigating Raymond Ruhl and Ruhl’s attempts to have his wife murdered. Ahola did not advise the defendant of his Miranda warnings (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602), and he told the defendant that they were not trying to prosecute him. The defendant talked with Ahola for a couple of hours, during which the defendant related facts regarding the contemplated murder plot of Mrs. Ruhl. After Ahola’s discussion with the defendant, he accompanied the defendant to Judge Patton’s chambers where, with the help of the defendant, Ahola obtained a search warrant and an eavesdrop order. While in Judge Patton’s presence, immunity was not discussed with the defendant by him or by anyone else. Neither was the promise not to prosecute the defendant discussed before the judge.

After going before the judge, the defendant participated in the eavesdrop by calling Ruhl from the State’s Attorney’s office. According to Ahola, the defendant gave them much information and cooperated. Ahola stated that the defendant had done everything expected of him with the exception that it was understood that the defendant would testify against Ruhl at some future date. However, Ahola expected the defendant’s cooperation to run for some months in the future as there was no expectation that Ruhl would die, and Ahola’s promise not to prosecute was to last throughout the prosecution of Raymond Ruhl. Ahola explained that the investigation of Ruhl encompassed events which had occurred in four separate counties, Shelby County, Christian County, Champaign County, and Macon County.

When Ahola discussed his promise not to prosecute with the defendant, Ahola did not tell the defendant that he would be immunized in Macon or any other county. Additionally, Ahola did not tell the defendant that their discussion only applied to Macon County. Ahola could not recall if the defendant was present when he and Agent Bensyl discussed which county the charges against Ruhl would be filed. Ahola admitted that he could not say with absolute certainty that the term “immunity” was not used in his discussion with the defendant.

Sometime after January 15, 1988, but before the defendant was indicted in Shelby County, Guy Casey, an attorney, indicated to Ahola that he represented the defendant. Ahola advised Casey that he had agreed not to prosecute the defendant as long as the defendant cooperated and told the truth. Casey asked Ahola if formal immunity had been granted to the defendant, and Ahola denied that this was done. Ahola explained that for formal immunity to be granted, he would have to present a motion for immunity to the court and an order would have to be entered.

On cross-examination, Ahola testified that he assumed that Ruhl would be prosecuted in Macon County at the time he talked to the defendant. Ahola admitted that even though there were different counties involved, it was still the same police agency involved in the investigation. Ahola did not tell the defendant, after Ruhl’s death, that his promise to the defendant had ended. Ahola stated that he had no further conversation with the defendant after January 15, 1988. Ahola acknowledged that the indictments brought against the defendant in Shelby County were substantially the same charges for which Ahola had promised the defendant he would not be prosecuted.

David McClearen testified that he was an agent with the Department of the State Police in the Division of Criminal Investigation (DCI). He had received information that Raymond Ruhl was attempting to hire a person to kill his wife, and as a result of his investigation of Ruhl, McClearen had contact with the defendant. McClearen, accompanied by Agent Lee Bensyl, first saw the defendant on January 15, 1988, at the security office at the Caterpillar Tractor Company in Decatur. Prior to the meeting with the defendant that day, McClearen and Bensyl had met with Gerry Sheehy, an investigator for the State’s Attorney’s office, and with Jack Ahola, at the State’s Attorney’s office, to discuss the subsequent meeting with the defendant. McClearen did not recall the word “immunity” being used during the discussion with Sheehy and Ahola, but he did recall that Ahola agreed not to prosecute the defendant in Macon County in exchange for the defendant’s cooperation. It was McClearen’s understanding that the defendant’s cooperation was to include his helping with the arrest of Ruhl, his telling everything he knew about Ruhl’s plot, and his 100% cooperation with them.

McClearen met with the defendant about 9 or 10 a.m. on the morning of January 15, 1988. At the beginning of their meeting, the defendant was first advised of his Miranda warnings and was told about their investigation of Ruhl. In addition, the defendant was told that he was not under arrest, and that the assistant State’s Attorney had offered not to prosecute the defendant if he agreed to cooperate with them in their investigation. The defendant agreed to talk with the officers, but because the security office did not provide an adequate place to talk, McClearen asked the defendant to come down to the State’s Attorney’s office.

Upon their arrival at the State’s Attorney’s office, the defendant was introduced to Jack Ahola. Before any discussions were initiated, the agents drew Ahola aside and told Ahola what had been discussed at the Caterpillar security office, and the agents asked Ahola if he would like to talk to the defendant. According to McClearen, Ahola talked to the defendant for a lengthy interval, during which McClearen was in and out of the room. McClearen testified that he did not hear any conversation regarding immunity between Ahola and the defendant, but that he did hear Ahola tell the defendant that he would agree not to prosecute the defendant in return for the the defendant’s cooperation, i.e., the defendant would do anything they asked. At no time during the discussion was mention made of other counties.

McClearen stated that he was present during the meeting with Judge Patton and during the defendant’s telephone call to Ruhl for the eavesdrop. McClearen corroborated Ahola’s testimony that the defendant helped to obtain a search warrant and an eavesdrop order. Mc-Clearen also stated that no discussion of immunity for the defendant was held in Judge Patton’s presence. While McClearen met with Judge Patton, Agent Bensyl contacted the Shelby County State’s Attorney’s office. Subsequent to the eavesdropped conversation between the defendant and Ruhl, a meeting was held in which the officers discussed their plan to arrest Ruhl.

After the defendant had gone before the judge, and after he had participated in the eavesdrop, McClearen told the defendant that it would be best if the defendant did not return to his home on the chance that Ruhl would try to contact him there. The defendant told McClearen that he was going to a movie and that he would then go to his cabin on Lake Pana.

McClearen testified that he was satisfied with the defendant’s performance of his tasks. However, McClearen was concerned that the defendant had “tipped Ruhl off” about Ruhl’s pending arrest after their meeting on January 15, 1988. McClearen admitted that a thorough investigation and a polygraph examination administered to the defendant regarding whether the defendant had advised Ruhl of the pending arrest revealed that there was no evidence that the defendant had done so. In McClearen’s opinion, the defendant had only told them of his limited involvement with Ruhl, and that later the police discovered that the defendant’s involvement was more extensive than the defendant had revealed. However, McClearen admitted that the defendant had told the officers that it was he who had approached Bennett to inquire about a “hit man” for Ruhl, that the defendant had given Bennett a photograph and information about Ruhl’s wife, that it was the defendant who told Bennett that no payment would be made until the job was done, that Bennett told the defendant the price of the job, and that the defendant told Ruhl that he had found a person to kill Ruhl’s wife. McClearen testified that he never talked to the defendant again after January 15,1988.

McClearen was briefly recalled to testify during the defendant’s case in chief. At that time, McClearen could not recall telling Agent Erlenbush that the defendant was granted immunity, but he did recall telling Erlenbush that the defendant was not going to be charged. Mc-Clearen stated that at the time he was interviewed by Erlenbush, he was in the hospital with wounds to his head, hand, and his wrist from the shooting of January 15,1988, and that he was on medication.

Jack Eckerty, a sergeant with the Illinois State Police, DCI, testified that he investigated the shooting of January 15, 1988. (At this time, we note for clarification that during this shooting, which occurred during the course of the State Police’s attempt to arrest Ruhl, Raymond Ruhl was killed as was Agent Lee Bensyl.) In the course of his investigation, he interviewed the defendant at the Pana police department at approximately 12:40 a.m. on January 16, 1988. Agent Erlenbush was also present at the interview. Eckerty advised the defendant of his rights before he questioned the defendant, and the defendant agreed to talk to him. The purpose of Eckerty’s questioning of the defendant was to determine if the defendant had talked to Ruhl after the defendant’s meeting with the assistant State’s Attorney and the police on January 15, 1988.

At the beginning of the defendant’s interview, the defendant told Eckerty that he had been promised immunity by the State’s Attorney in Macon County. Neither Eckerty nor Agent Erlenbush told the defendant that he had not been given immunity, nor did Eckerty attempt to discover whether the defendant had been given immunity as the defendant said. After questioning the defendant as to whether the defendant had talked to Ruhl after the meeting of January 15, 1988, Eckerty was satisfied that the defendant had not alerted Ruhl to the pending arrest.

Fred Paoletti testified that he was a polygraph examiner employed by the Illinois State Police and that on January 16, 1988, at about 4 a.m., he interviewed the defendant. His interview with the defendant centered on whether the defendant had warned Ruhl of the pending arrest. At no time during his conversation with the defendant did he discuss the events prior to January 15, 1988, or the meeting in the State’s Attorney’s office on January 15, 1988. The defendant did not tell him anything regarding promises that were made, and Paoletti was unaware of any grant of immunity or of promises not to prosecute given to the defendant. The defendant freely answered the questions asked by Paoletti, and the defendant denied that he falsified or concealed information regarding the case.

Michael Mannix testified that he was a special agent with the Illinois State Police in the Division of Internal Investigation (DII). Mannix stated that he first interviewed the defendant at his home on February 3, 1988. Mannix was accompanied at this interview by Agent Erlenbush. Prior to the interview, Agent Erlenbush advised the defendant of his Miranda warnings, the defendant was told that they were investigating a possible conspiracy, and the defendant agreed to answer their questions. Before any questions were asked, the defendant informed Mannix that he had immunity in Macon County. According to Mannix, Agent Erlenbush responded to the defendant’s statement of immunity by saying that “that had to do with Macon County, we were here on a different investigation.” The interview proceeded and lasted approximately two to three hours. Mannix stated that neither he nor Agent Erlenbush promised the defendant immunity or offered the defendant other inducements for his statements.

Mannix interviewed the defendant a second time on February 9, 1988, at the defendant’s home, and Mannix was again accompanied by Agent Erlenbush. The defendant was advised of his rights prior to the interview, and the defendant agreed to talk. The defendant was told that this interview was a follow-up to the interview of February 3, 1988. Mannix did not recall that the defendant stated anything about immunity at this interview, and likewise, neither of the agents promised the defendant immunity or promised the defendant he would not be prosecuted.

Mannix admitted that at the time he interviewed the defendant on February 3, 1988, he was aware that a promise not to prosecute the defendant or immunity had been offered to the defendant, as Agent Erlenbush had advised him that he had heard that the defendant had been given immunity in Macon County prior to this interview. However, Mannix did not discuss this matter with the State’s Attorney. Mannix was unaware that the defendant’s part of the agreement was that he was to cooperate with the law enforcement officers. Mannix admitted that the defendant cooperated with them, and the defendant told them he had had numerous conversations with Ruhl. Mannix further admitted that anytime they (the State Police) interviewed anybody, they always advised the person of their rights, and that, at the defendant’s interview, either he or Agent Erlenbush told the defendant that informing the defendant of his rights was a matter of procedure or policy. Additionally, neither Mannix nor Erlenbush told the defendant that he was the subject of a grand jury investigation or that the defendant could no longer rely on Jack Ahola's agreement. Mannix stated that he attempted to interview the defendant on a third occasion at the defendant’s place of employment.

Stuart Erlenbush testified that he was a master sergeant with the Illinois State Police assigned to DII. On January 16, 1988, after the shooting incident, he went to the Pana police department. He arrived at the police department at about midnight and interviewed the defendant at approximately 12:30 a.m. Agent Eckerty was also present at the interview. Eckerty advised the defendant of his rights, and the defendant agreed to talk. The defendant advised the agents that he had been granted immunity by Macon County, but Erlenbush did not confirm or inquire into whether this was so. Erlenbush asked the defendant what occurred after his meeting with the police on January 15, 1988, and the defendant told him that after leaving the agents, he went to a movie in Springfield and then to his cabin on Lake Pana. Erlenbush asked the defendant to submit to a polygraph examination, and the defendant agreed. During the interview, Erlenbush did not promise or offer inducements to the defendant for his statements.

During the late morning of January 16, 1988, Erlenbush interviewed Agent McClearen in the hospital. Erlenbush asked McClearen about the events of the previous day, including the events at the Macon County State’s Attorney’s office. At some point in the interview with McClearen, Erlenbush was advised that the defendant was granted immunity by the Macon County State’s Attorney’s office. Erlenbush recalled that McClearen used the term “immunity” in this discussion.

Erlenbush next saw the defendant at his home on February 3, 1988, with Agent Mannix. At the beginning of the interview, he gave the defendant his Miranda warnings, which prompted the defendant to state that he had been granted immunity in Macon County. Erlenbush had not talked to Jack Ahola at any time between January 16, 1988, until the time of this interview, to determine whether the defendant had immunity. Erlenbush told the defendant that they were not from the Macon County State’s Attorney’s office and that he was unaware of what arrangements the defendant had with Macon County. At the time of the interview of February 3, 1988, the grand jury had not convened.

Erlenbush, along with Agent Mannix, next interviewed the defendant on February 9, 1988, at which time Erlenbush again advised the defendant of his rights. Erlenbush did not recall that the defendant said anything about immunity on this occasion. Erlenbush testified that he did not offer any inducement or make any promise to the defendant to obtain his statements at this interview or at any of the previous interviews. Erlenbush admitted that he did not tell the defendant at this interview, or at the interview of February 3, 1988, that he did not have immunity. Erlenbush further admitted that it was possible that the defendant was told at an interview that the administering of his rights was just routine procedure. Erlenbush also testified that the investigation of the murder plot against Ruhl’s wife involved Champaign, Shelby, Christian and Macon Counties.

After the interview of February 9, 1988, Erlenbush and Mannix attempted to interview the defendant once again. Erlenbush advised the defendant of his rights, and the defendant refused to talk to the agents. The defendant explained that he had been to his bank, and that the bank told him that his records had been subpoenaed. Because of the subpoena, the defendant did not want to talk to the agents.

Guy Casey testified on behalf of the defendant. Casey stated that he first saw the defendant on March 17, 1988. At that time, the defendant told Casey that he was under the understanding that he had immunity from the Macon County State’s Attorney’s office. The defendant assumed that his subsequent conversations with the law enforcement officers were covered under the immunity from Macon County. The defendant told Casey that a subpoena had been issued by Shelby County and that he did not understand what was occurring since he thought he had immunity. The defendant asked Casey to inquire into this situation.

In response to the defendant’s request, Casey met with Jack Ahola on one occasion and talked to Ahola twice on the telephone. At the meeting with Ahola, Ahola told Casey that he had promised the defendant immunity, but that he had not taken the defendant in front of a judge to obtain formal immunity. Casey suggested to Ahola that Ahola should formalize the immunity at this time; however, Ahola said he could not do so as Ruhl was dead and there was no case pending.

Casey testified that he had also talked to Erlenbush on March 30, 1988. According to Casey, Erlenbush told Casey that he had heard that the defendant had been given immunity.

Casey stated that the defendant always referred to the term “immunity” whenever the defendant discussed the situation with him. When Casey discussed immunity with Ahola, Ahola did not state that the immunity was restricted to Macon County. Casey acknowledged that there was not a court order granting the defendant immunity, and that, at best, the defendant had received a promise of immunity.

The defendant testified in his own behalf. He stated that on January 15, 1988, he was summoned to the security chiefs office at his place of employment, Caterpillar Tractor Company. At the security office, he met Agents Bensyl and McClearen, who identified themselves as agents of the Illinois State Police. The agents told the defendant they were aware of Ruhl’s plan to have his wife killed, and that they knew that the defendant was involved in the plan. The agents advised the defendant of his rights and explained to the defendant that they were authorized to give him immunity if he were willing to cooperate in their investigation of Ruhl. The defendant asked them to explain this offer. According to the defendant, Agent Bensyl told him that they were authorized to make the defendant an offer that would let him walk away free, and that the defendant would not be arrested, prosecuted or have a criminal record. The defendant asked the agents for verification of this offer, whereupon the agents told the defendant they would take him to the State’s Attorney’s office, and the State’s Attorney would elaborate.

When the defendant arrived at the State’s Attorney’s office, he was introduced to Jack Ahola. Ahola stated that he was authorized to offer the defendant immunity if the defendant would cooperate with the State Police, and if the defendant would tell them what he knew about Ruhl’s plan. When Ahola made this offer, Ahola neither placed a geographic limit nor a time limitation on the offer. Ahola told the defendant that he would have to help obtain an arrest warrant and an eavesdrop order, and that the defendant would have to participate in the eavesdrop and would have to testify in court. The defendant asked Ahola if this was “full immunity,” and Ahola responded that it was. The defendant accepted this agreement and talked to Ahola. A typed version of the defendant’s statements was prepared for the defendant to sign, and armed with these statements, the defendant and Ahola went to the judge’s chambers. The judge questioned Ahola and the defendant as to the truth of the defendant’s statements, and both stated that the statements were true.

The defendant and Ahola returned to the State’s Attorney’s office and, upon his return, the agents prepared questions for the defendant to ask Ruhl during the eavesdrop. The defendant participated in the call, and afterwards, the agents said they were pleased with the results. While the defendant was still in their presence, the agents began planning the strategy of Ruhl’s arrest. Before the defendant left the State’s Attorney’s office, one of the agents wrote their names and telephone numbers down and gave them to the defendant. The agents told the defendant that he should call one of them late that night to find out if it was safe for the defendant to return to his home. Ahola asked the defendant not to go home, and the defendant told Ahola that he would go to a movie and then go to his lake home and stay the night, which he did.

At about midnight that night, law enforcement officers appeared at his cabin at the lake and took the defendant to the Pana police department. At this time, the defendant was told that the police were investigating the shootout. The defendant was given his rights, which the defendant questioned since he had been given immunity. Erlenbush told the defendant that they wanted to know what had happened after the defendant had left the State’s Attorney’s office, and the agents wanted to know if the defendant had informed Ruhl about his pending arrest, Erlenbush asked him if he would consent to take a polygraph examination, and the defendant consented. Again, prior to the administration of the polygraph examination, the defendant was given his rights. The defendant questioned again the necessity of being given his rights as he believed he had immunity.

The defendant confirmed that Agents Mannix and Erlenbush interviewed him on February 3, 1988. According to the defendant, the agents identified themselves and stated that they wanted to ask him more questions. The defendant explained that he believed he had to talk to the agents since Ahola had told him that he had to cooperate with the State Police under the terms of his grant of immunity, and that if he did not speak to the agents, he would jeopardize his immunity. The defendant stated that when Erlenbush advised him of his rights he felt apprehensive and that he asked Erlenbush why he was read his rights when he had an agreement. Erlenbush told the defendant that the reading of his rights was just a formality and a procedure, and that the signed waiver form verified that the agents had seen and had spoken to the defendant. The defendant was also told by Erlenbush that Erlenbush had not spoken with Ahola, but that other agents in the department had told him that the defendant had been given immunity. At the conclusion of the interview on February 3, 1988, Erlenbush told the defendant that he or other agents would be in contact with the defendant in the future.

The defendant could not recall the date of the next interview that he had with the agents, but he testified that, at this interview, Erlenbush again advised him of his rights. When the defendant commented on the reading of his rights, defendant was again told it was the agents’ procedure and a formality and that the defendant ought to be familiar with this procedure by now. The defendant talked to the agents at this interview as he believed that this was required under his agreement with Ahola.

The agents returned to talk to the defendant on yet another occasion, but this time the defendant refused to talk to them. The defendant explained that he had gone to his bank to obtain a loan which was refused because the bank was not interested in doing business with him due to a subpoena that had been issued for the defendant’s bank records. The bank’s attorney advised the defendant to talk to his attorney, which prompted the defendant to contact Guy Casey. Therefore, when the agents returned for another interview, the defendant mentioned to them that he had had problems at his bank and that he wanted to talk to his attorney. Erlenbush told the defendant that there was no arrest warrant against the defendant and that he knew of no prosecution pending against the defendant. The defendant told the agents that he wanted to cooperate; however, he was not comfortable doing so since the incident at the bank.

The defendant testified that had he known that his agreement was not in effect on January 16, 1988, and at the subsequent interviews with the agents, he would have asked to consult with his attorney. The defendant admitted that he did not ask Ahola if there were geographical limits to his agreement. The defendant also admitted that Erlenbush advised him that he had not talked to anyone at Macon County about the defendant’s agreement, but that the defendant agreed to talk to the agents. However, Erlenbush also told the defendant on February 3, 1988, that if the defendant had immunity, then he had nothing to worry about.

Lastly, Michael Kiley, the Shelby County State’s Attorney, testified that Agent Bensyl had contacted him on January 15, 1988, regarding the potential prosecution of Raymond Ruhl. As a result of his conversation with Agent Bensyl, Kiley wrote a letter to the Illinois State Police summarizing his conversation with Agent Bensyl. In the letter, Kiley stated that he and Agent Bensyl had briefly discussed an arrangement entered into by the Macon County State’s Attorney’s office in which a promise of a grant of immunity was given to an unknown individual whom Kiley subsequently knew to be the defendant. Kiley stated that it had been described to him that the defendant had been promised that he would not be prosecuted in Macon County, and Agent Bensyl asked Kiley if he would be interested in talking to the defendant about a similar arrangement in Shelby County.

After considering the foregoing evidence, the circuit court took the defendant’s motion under consideration. Subsequently, the court entered an order on the docket sheet on December 22, 1988, in which the court held that the defendant’s motion to suppress all evidence of guilt induced under the governmental promise of immunity must be granted. The court found that the defendant had been promised he would not be prosecuted for his involvement with Raymond Ruhl if he cooperated with the investigation of Ruhl. The court determined that under this promise, the defendant believed he had been offered immunity from prosecution and that he was never advised that a promise not to prosecute was not the same as immunity or that the promise was only good in Macon County. The court found that the defendant had a reasonable belief that he had immunity and that he cooperated with the police in accord with that belief. Further, because the subject of the investigation remained the same at the subsequent interviews by the State Police, the assistant State’s Attorney’s promise also induced the defendant’s statements given at these interviews. Therefore, the court held that the defendant’s statements were inadmissible.

On appeal, the State argues that the defendant’s statements were admissible as the statements were voluntarily made. In support of its assertion, the State raises four subissues, which are as follows: (1) that the defendant was not granted immunity, (2) that the promise not to prosecute the defendant given by the Macon County Assistant State’s Attorney cannot be binding on the Shelby County State’s Attorney, (3) that the defendant did not fulfill the obligation of his agreement to cooperate which vitiated the agreement, and (4) that the investigation in Shelby County was conducted by different authorities than in Macon County. While these subissues do come into our consideration of this appeal, the primary question to be determined is whether the defendant’s statements were voluntarily made.

The basic tenet of the law is that in considering whether a statement is voluntary, the surrounding circumstances of the statement must be considered in their totality. (People v. Overturf (1979), 67 Ill. App. 3d 741, 385 N.E.2d 166.) While the failure to advise a defendant of his constitutional rights renders a statement per se involuntary, the converse, that the administering of a defendant’s rights and a defendant’s waiver of those rights makes the statement voluntary, is not true. (Overturf, 67 Ill. App. 3d 741, 385 N.E.2d 166.) Additionally, a statement is not voluntary where it was obtained by a governmental promise of immunity. (Shotwell Manufacturing Co. v. United States (1963), 371 U.S. 341, 9 L. Ed. 2d 357, 83 S. Ct. 448; People v. Bogolowski (1927), 326 Ill. 253, 157 N.E. 181.) A court’s determination of the voluntariness of a defendant’s statements will not be overturned on review unless it is contrary to the manifest weight of the evidence. People v. King (1986), 109 Ill. 2d 514, 488 N.E.2d 949; People v. Tan ser (1979), 75 Ill. App. 3d 482, 394 N.E.2d 616.

In this case, it is clear that while the defendant was not granted transactional immunity pursuant to statute (Ill. Rev. Stat. 1987, ch. 38, par. 106—1 et seq.) or use immunity, he was given a promise not to prosecute by both the Macon County assistant State’s Attorney and by the agents of the Illinois State Police. This promise by the governmental authorities prompted not only his statements of January 15, 1988, but also his subsequent statements of January 16, 1988, February 3, 1988, and February 9, 1988. It was eminently reasonable for the defendant to believe that his agreement applied to his subsequent interviews, for there was a continuity of agents conducting the interviews, in that the agents were all with the Illinois State Police; the subject matter of the interviews related to the same ongoing investigation as the one covered by his agreement; and the defendant was never disabused of his belief that he would not be prosecuted by any of the agents at the interviews. Additionally, suffice it to say that this court has relied heavily upon the facts of this case in its determination, and, having already extensively set forth those facts, there is no need to further reiterate them at this juncture. Therefore, we find that the totality of the circumstances surrounding the defendant’s statements in the case sub judice render the defendant’s statements involuntary, and the circuit court’s granting of the defendant’s motion to suppress was not against the manifest weight of the evidence.

We note that while the State is correct that a State’s Attorney of one county cannot bind another State’s Attorney of another county with his promises, that problem does not arise here. The circuit court determined that the defendant could be prosecuted in Shelby County, and we find this a proper determination; however, because the defendant’s statements were involuntary, the defendant’s statements cannot be used in the Shelby County prosecution.

For the foregoing reasons, the judgment of the circuit court of Shelby County, granting the defendant’s motion to suppress his statements, is affirmed.

Affirmed.

HARRISON and WELCH, JJ., concur.