author: PRESIDING JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REYMAR CLINIC PHARMACY, INC., Defendant-Appellant.
    First District (5th Division)
    Nos. 1 — 91—1153, 1—91—2181 cons.
    Opinion filed March 26, 1993.

      Patinkin & Torf, Ltd., of Deerfield (Phillip R. Torf, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (Terence Madsen and Bradley Halloran, Assistant Attorneys General, of Chicago, of counsel), for the People.
   PRESIDING JUSTICE GORDON

delivered the opinion of the court:

The corporate defendants, Reymar Clinic Pharmacy (hereinafter Reymar), and Englewood Clinic Laboratory, Inc. (hereinafter Englewood), along with two individuals, Henry Piemental, M.D. (hereinafter H.P.), and Oscar Hosenilla, were indicted in several counts, including count I charging vendor fraud, which is the only count pertaining to this appeal. The indictment alleged that defendants defrauded the Illinois Department of Public Aid in obtaining more than $10,000 in payments for medical services which it never ordered or delivered.

On May 11, 1990, defendants H.P., Englewood and Reymar were found guilty on the charges of vendor fraud pursuant to a guilty plea purportedly entered by H.P. on his behalf and on behalf of the corporate defendants. Each received a sentence of conditional discharge for a period of 24 months.

Englewood and Reymar each filed post-conviction petitions pursuant to section 122 — 1 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1), which were summarily denied by the trial court. Each defendant also filed petitions to vacate the judgment pursuant to section 2 — 1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401), which were also summarily denied without an evidentiary hearing.

Each corporate defendant filed a notice of appeal and both appeals were consolidated before this court. Subsequently, appellant Reymar’s appeal was stricken, leaving Englewood as the sole remaining appellant. Although filed separately and at different times, the grounds alleged in the respective post-conviction petitions and motions to vacate filed by Reymar and by Englewood are substantially identical. Although the court ruled on Reymar’s post-conviction pleadings first, the trial court assigned the same reasons for the denial of the petitions in Englewood as it had articulated previously with respect to Reymar.

In its post-conviction petition, Englewood avers that H.R, who purported to represent it in entering a plea of guilty on its behalf, was unauthorized to do so. Englewood’s post-conviction petition avers that H.P. was neither a shareholder, director nor officer of Englewood. It further states that H.P. made false representations as to his authority to enter a plea for Englewood. The petition contends that neither Englewood nor its officers, true agents or directors ever received notice of its “alleged violations.”

The petition states that as a result of the conviction, Englewood’s eligibility to remain a vendor of laboratory services to public aid recipients was being terminated and its principals (officers and shareholders) would be barred from participating in the State’s medical assistance program.

Englewood’s petition urges that its rights under the fourteenth amendment of the United States Constitution and article I, section 2, of the Constitution of the State of Illinois were violated by the lack of notice of the charges and the fraudulent testimony of H.P.

Supporting affidavits were filed under oath by Dr. Suck Oo Kim, president, director and 50% shareholder of Englewood, and by Dr. Lamberto Piemental, secretary-treasurer and owner of the other 50% of Englewood’s stock. Dr. Lamberto Piemental is H.P.’s brother.

The section 2 — 1401 petition of Englewood contained allegations substantially identical to those in its post-conviction petition and was apparently filed contemporaneously. The section 2 — 1401 petition explicitly avers that Englewood did not discover that it was convicted until it was notified of the conviction by the Illinois Department of Public Aid, more than six months later, in November 1990.

The same sworn affidavits submitted by Englewood in support of its post-conviction petition were also submitted in support of its section 2 — 1401 petition.

As noted, the trial court adopted its reasons for denying the petitions of Reymar as its reasons for denying the petitions of Englewood. The trial court held that the post-conviction remedy provided under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.) was not available to corporations. The trial court reasoned that since corporations could not be imprisoned, they were not the intended beneficiaries of the relief provided under that statute.

The reasons assigned by the trial court for the denial of Englewood’s section 2 — 1401 petition are less clear. Although the trial judge stated that his grounds for denying Englewood’s section 2 — 1401 petition were the same as those which controlled his dismissal of the Reymar petition, there were distinct differences between the two petitions. In Reymar, affidavits submitted in support of the section 2 — 1401 petition were unsigned, while those submitted by Englewood were signed and sworn to. In Reymar, the face of the “Domestic Corporation Annual Reports” filed with the Secretary of State showed that H.P. was an officer of that corporation while the “Domestic Corporation Annual Reports” filed by Englewood showed that Drs. Suck Oo Kim and Lamberto Piemental were its only officers and fiduciaries.

Unlike his statement regarding the post-judgment petition, the trial judge did not pinpoint the reasons for denying Reymar’s section 2 — 1401 petition. He did state that for purposes of section 2 — 1401 the claim regarding H.P.’s fraud or lack of authority was collateral and tenuous “at best.” He also stated that he saw nothing in the record “that shows Henry Piemental committed or perpetuated any fraud upon this court” in entering his plea for Reymar. He concluded “in the. absence of any direct affirmative showing” of Henry Piemental’s lack of authority, the petition “must fail.”

We shall first address the question raised by Englewood’s post-conviction petition.

The Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1) provides in pertinent part:

“Any person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article.”

Although the explicit language of this provision requires that the petitioner be imprisoned in the penitentiary in order to institute a post-conviction proceeding, our supreme court in construing this provision has deemphasized the necessity of actual imprisonment. Thus, our courts have allowed post-conviction petitions from defendants sentenced to probation (People v. Montes (1980), 90 Ill. App. 3d 355, 412 N.E.2d 1363), as well as from defendants who were on mandatory supervised release. People v. Correa (1985), 108 Ill. 2d 541, 485 N.E.2d 307.

In People v. Martin-Trigona (1986), 111 Ill. 2d 295, 489 N.E.2d 1356, a post-conviction petition from a defendant who was released on bond when the petition was filed was allowed. In People v. Placek (1976), 43 Ill. App. 3d 818, 357 N.E.2d 660, cited with approval by our supreme court in People v. Martin-Trigona, a post-conviction petition from a defendant on parole and in a work release program was considered on its merits.

While in each of these cases no actual imprisonment was required for the petition to be available, in each the possibility of custodial incarceration was present at least as of the time that the petition was filed. This was perceived by our supreme court to be the controlling factor. See People v. Martin-Trigona (111 Ill. 2d at 300):

“As with actual incarceration, restraints on liberty accompanying probation, parole and release on appeal bond are unacceptable when they are imposed in violation of an individual’s State or Federal constitutional rights. Recognition of this principle undergirds the decisions in Correa, Montes, and Placek, and it is controlling in this case. Release on an appeal bond carries seriously restrictive conditions [citation], and it was uncontested in this case that Martin-Trigona, being subject to an appeal bond, could not leave the confines of the State without permission of the court, could not depart the country under any circumstances, and was restricted in his ability to change his place of residence within the State.
In Correa, we allowed convicted persons on mandatory supervised release to petition under the Act because ‘the released prisoner may be taken into custody for a violation of the conditions of his release.’ [Citation.] The same may be said for convicted persons released on appeal bond ***. We therefore hold that defendants who avoid incarceration by posting an appeal bond are ‘imprisoned in the penitentiary’ within the meaning of the Act.”

It is a truism that the potential risk of imprisonment is totally lacking in the case of a corporation. (See People v. Valley Steel Products Co. (1978), 71 Ill. 2d 408, 418, 375 N.E.2d 1297 (“[corporations], in the nature of things, could not be imprisoned”).) Thus, since the potential of custodial confinement is lacking, the post-conviction statute cannot apply. We cannot superimpose upon the post-conviction statute a construction which would totally abolish and ignore the requirement that it apply to “a person imprisoned in the penitentiary.”

That this conviction may nonetheless result in damage to the commercial enterprises of the corporation would not be sufficient under the Act to provide a basis for its invocation. See People v. Martin-Trigona, 111 Ill. 2d 295, 489 N.E.2d 1356; People v. Davis (1973), 54 Ill. 2d 494, 298 N.E.2d 161.

We next consider defendant’s contention of trial court error in summarily denying its section 2 — 1401 petition. The procedural requirements attendant to section 2 — 1401 petitions have been extensively reviewed by our supreme court in Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253. There our supreme court held among other things that (1) a petition under section 2 — 1401 is a pleading in a new action; (2) it is subject to the procedural safeguards provided in the Code of Civil Procedure with respect to pleadings; and (3) a motion to dismiss it will admit all facts as well pleaded and should not be granted unless it clearly appears that no set of facts could ever be proved as to entitle petitioner to prevail. See also Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348; Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 165 N.E.2d 294.

Moreover, under Ostendorf the rule is clear that where the central facts of a section 2 — 1401 petition are controverted, an evidentiary hearing must be held. (Accord Mercantile All-In-One Loans, Inc. v. Menna (1978), 63 Ill. App. 3d 931, 380 N.E.2d 944.) The Illinois Supreme Court in Ostendorf declared:

“We believe that this rule is sound. In a section 72 proceeding, as in a proceeding on a summary judgment motion, factual disputes may arise that cannot be resolved solely on the basis of pleadings, affidavits, and the record of the prior proceeding. Where there is a genuine dispute as to an issue of fact, that issue must be determined by the trier of fact.” Ostendorf 89 Ill. 2d at 286.

Here the central facts are at issue. The representation of H.P. to the trial court that he had authority to speak on behalf of Englewood has been directly challenged by the affidavits of his brother, Lamberto, and of Dr. Kim, and by the extrinsic submission of the “Domestic Corporation Annual Report” of Englewood showing the affiants to be Englewood’s only officers and agents.

Accordingly, the summary disposition of defendant’s petition by the trial court was clearly outside the latitude of his discretion. While the petition does not allege due diligence on its face, it has not been challenged on that ground either below or in this appeal. Nor was that omission referred to or alluded to by the trial judge.

Defendant also contends that the trial court lacked in personam jurisdiction over it to enter a conviction predicated upon the entry of an unauthorized guilty plea. Under section 107 — 13 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 107 — 13), jurisdiction over a corporation charged with an offense is acquired through service of summons. The record on appeal in this case is devoid of any reference to service of summons. However, the State in its oral argument has conceded that if defendant’s assertions regarding the lack of agency and authority of H.P. to enter a guilty plea on its behalf were correct, the trial court would be without jurisdiction and its judgment would be void.

Where a void judgment is attacked, no special appearance need be filed once the judgment is entered. (See DiNardo v. Lamela (1989), 183 Ill. App. 3d 1098, 539 N.E.2d 1306.) Moreover, if the movant mislabels his motion attacking the judgment, the courts should be liberal in recognizing the motion as a collateral attack upon a void judgment. (See DiNardo v. Lamela, 183 Ill. App. 3d 1098, 539 N.E.2d 1306; Giralamo v. O’Connell (1986), 145 Ill. App. 3d 527, 495 N.E.2d 1180.) Consequently, as in DiNardo, we are free to recognize defendant’s section 2 — 1401 petition as also presenting a collateral attack on a void judgment even though not designated as such.

The differences between a section 2 — 1401 motion and a motion attacking a void judgment are largely procedural in that an attack on a void judgment is not subject to the time constraints of a section 2— 1401 motion, nor is it subject to any due diligence requirements. (See generally R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 489 N.E.2d 1360.) However, since this petition is filed within the two-year period provided under section 2 — 1401 and the State has not challenged defendant’s requisite diligence, these procedural differences are inconsequential. Moreover, whether we view defendant’s motion as a section 2 — 1401 motion or as a motion attacking a void judgment, the central issue of fact is identical. In either case, the question turns upon whether H.P. was authorized by Englewood to enter a guilty plea on its behalf. As previously noted this dis-positive fact question is in dispute. It must therefore be determined by an evidentiary hearing which the trial court failed to provide. See Ostendorf, 89 Ill. 2d 273, 433 N.E.2d 253; DiNardo, 183 Ill. App. 3d 1098, 539 N.E.2d 1306.

Accordingly, the order of the trial court summarily denying defendant’s post-conviction petition under section 122 — 1 (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1) is affirmed. The order of the trial court denying defendant’s petition pursuant to section 2 — 1401 is reversed and remanded with instructions to conduct an evidentiary hearing.

Affirmed in part; reversed in part and remanded.

MURRAY and COUSINS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRYL TOLIVER, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 91—3008
    Opinion filed April 19, 1993.

      Rita A. Fry, Public Defender, of Chicago (John T. Kennedy, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Margaret J. Faustmann, and Fabio Valentini, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Defendant Darryl Toliver was convicted by a jury of aggravated criminal sexual assault and armed robbery. Defendant was sentenced to consecutive extended terms of 60 years for each of the two offenses. Defendant appeals his conviction and sentences.

J.M. testified that she left work at 5:30 p.m. on Friday, November 3, 1989, and went to Ranalli’s, where she drank iced tea and ate appetizers for three hours with her girl friends. Thereafter, J.M. went to Diana’s in Greek Town to have dinner with her friends. At about 10:30 p.m., she went to a bar in Greek Town, Dugan’s, where she consumed a total of three beers. At approximately 2 a.m., J.M. left Dugan’s and entered a yellow car she believed was a cab and told the driver to go to 6101 North Sheridan. The driver turned around and she saw his face.

Defendant drove two blocks south on Halsted, turned right onto Van Burén and drove another two blocks, before stopping the car. Then, defendant jumped into the back seat and covered J.M.’s head with a towel. J.M. was forced out of the car and into the driver’s side of a van. She further testified that defendant said he was going to kill her. Defendant forced J.M. to lie down with her head on his lap while he drove, holding a switchblade knife against her face.

J.M. testified that she thought the van was proceeding on the expressway because it was not stopping. Then, the van got off the expressway and made some stops and turns before coming to a complete stop. Defendant forced her through the bucket seats of the van into the back seat. Defendant unzipped his pants and ordered her to perform oral sex on him. J.M. claimed to be too drunk. Thereafter, defendant forced off one leg of her pantyhose and underpants. Defendant put his penis into J.M.’s vagina and had forced sex with her while repeatedly hitting her on the right side of the face with the butt of the knife.

After defendant sexually assaulted J.M., he forced her back into the front seat and demanded money from her. Defendant went through her purse. Then, defendant told her that he was “gonna take [her] out by the airport and slice [her] up.” Defendant also ordered J.M. to give-him her jewelry. She replied “fuck you,” opened the door and fell out the passenger side of the van. She ran towards the rear of the van to the first block, turned around, looked at the license plate and memorized the number. J.M. then ran to a house in the residential area, where she hid in the bushes. J.M. testified that defendant drove the van around the block four or five times before leaving the area. After 20 minutes of hiding in the bushes, she went into the middle of the street to stop a car. She asked the driver of the car to take her to a police station and help her remember the license plate number.

Upon arriving at the station, J.M. went to the front desk and wrote down the plate number. The police took her to a hospital, where photographs were taken of her wrist, foot and back, which showed scrapes from the attack. Also, a photograph of her inner thigh showing bruises was taken. Two days after the incident, a professional photographer took pictures of J.M.’s face with a black eye and bruises.

Next, Officer Joann Hammermeister testified that she was working the front desk of the police station when J.M. entered. Hammermeister testified that J.M. was “upset, she had marks, bruises, some blood on her face.” She informed Hammermeister that she had been raped and robbed in a windowed livery van. Hammermeister wrote down the plate number J.M. gave her, 7167LY. She testified that J.M. described her assailant as a black male, approximately 6 feet tall, and 175 to 180 pounds. Although Hammermeister detected an odor of alcohol on J.M.’s breath, she testified that J.M. did not appear to be intoxicated, did not slur her speech or need assistance in walking. Hammermeister’s report indicated that the offense occurred at 4:15 a.m.

Alvin McCune testified on behalf of the State that he worked the midnight shift on November 4, 1989, as the dispatcher for Plaza Limousine located at 1014 West Van Burén. McCune testified that only himself, defendant and James Thomas worked that morning. Thomas was assigned to drive a stretch limousine. At about 1 a.m., defendant requested use of a van to go get something to eat. Defendant left in a dark Ford Aerostar with the license plate 7167LY and did not return until approximately 5:30 a.m. Lastly, McCune testified that he did not have contact with defendant during the time that he was out.

Officer Butler, an evidence technician for the Chicago police department, testified that he photographed a stain located on the rear seat of a dark Ford Aerostar bearing the license plate number 7167LY. A sample of the stain was also taken. Butler further testified that the van had bucket seats.

Denise Troche, a criminalist for the Chicago police department, testified that the sample of the above stain revealed the presence of semen. Troche further testified that she examined a sexual assault kit of samples taken from J.M. These samples also revealed the presence of semen.

Mark Heimberger testified on behalf of the State that he was employed as a detailer by Plaza Limousine. He stated that on November 2 he detailed the van with the license plate 7167LY and did not notice any stains in the rear seat.

The State’s last witness was Detective Mook who, pursuant to a check on the license plate number which J.M. had provided, went to Plaza Limousine. Mook saw the van. He, too, observed a dried stain on the rear seat. Mook arrested defendant at Plaza Limousine. On Sunday morning, November 5, Detectives Mook and Dorsch visited J.M. and displayed seven photographs. She identified defendant as the man who robbed and raped her. J.M. informed Mook that defendant had used a towel to cover her face. Mook went and reinspected the van and found a towel under the driver’s bucket seat. That evening, J.M. viewed a lineup. Each subject in the lineup was told to say some lines. She picked defendant out of the lineup because she recognized his face and his voice.

The State introduced several exhibits into evidence, expressly excluding police reports. Upon the State resting its case, defendant moved for a directed verdict, which was denied.

The defense entered a stipulation that defendant stands 5 feet 8 inches tall. Thereafter, defendant rested.

The jury found defendant guilty of aggravated criminal sexual assault and armed robbery. Defendant’s motion for new trial was denied.

At sentencing, the State presented evidence of a certified copy of a 1986 conviction for aggravated criminal sexual assault, armed robbery and armed violence for which defendant received a six-year prison sentence. The State also presented a certified copy of a 1983 conviction for robbery. In mitigation, defense counsel argued that defendant had been “gainfully employed.” The circuit court sentenced defendant to two consecutive extended terms of 60 years’ imprisonment. Defendant appeals his conviction and sentences.

First, defendant contends that the State improperly commented during rebuttal argument on his failure to testify, urged the jury to “try” defense counsel and not him, and abused the rape shield statute to exhort the jury that the victim not get “raped” again. Defendant argues that the above errors deprived him of a fair trial.

The State is generally given wide latitude in its closing and rebuttal arguments. (People v. Smith (1990), 199 Ill. App. 3d 839, 557 N.E.2d 596.) The State’s arguments, however, must be based on the evidence or be a reasonable inference drawn therefrom. (Smith, 199 Ill. App. 3d at 854, 557 N.E.2d at 607.) When reviewing allegations of prosecutorial misconduct, the complained-of statements must be considered in the context of the entire closing argument of both the State and the defendant. (Smith, 199 Ill. App. 3d at 854, 557 N.E.2d at 607-08.) Moreover, if the complained-of statements are within the rebuttal argument, the statements will not be held improper if they appear to have been provoked or invited by the defense counsel’s argument. (People v. Lyles (1985), 106 Ill. 2d 373, 390-91, 478 N.E.2d 291, 297.) Even if the statement is found to be improper, it will be considered prejudicial only where defendant can show that the jury would have reached a contrary verdict had the improper statements not been made. (People v. Manley (1991), 222 Ill. App. 3d 896, 584 N.E.2d 477.) Furthermore, if the complained-of statement was not objected to at trial or not raised in defendant’s written post-trial motion, any error is waived unless the statements are so prejudicial as to deprive defendant of a fair trial or so flagrant as to threaten deterioration of the judicial process. People v. Albanese (1984), 104 Ill. 2d 504, 518, 473 N.E.2d 1246, 1251-53.

The defendant contends that the following State’s rebuttal comment improperly referred to his failure to testify:

“The defendant’s attorney stands here and tells you that the [defendant asserted his innocence, well, we have the burden of proof, ladies and gentlemen. The [defendant is not obligated to present any evidence. He is not obligated to testify and you will be instructed that the fact that he did not testify cannot be held against him or used upon by you in any manner in reaching your determination of his guilt.
That is not the same thing as stating that he did not do it.”

The above comment was a response to defense counsel’s closing argument, which stated:

“You heard that Detective Mook spoke to [defendant]. As [co-defense counsel] told you during opening, [defendant] has asserted his innocence from the beginning.”

The implication of defense counsel’s argument is that defendant asserted his innocence to Mook. Although defendant asserted his innocence by pleading not guilty, a review of Mook’s testimony failed to reveal any inference that defendant affirmatively asserted his innocence directly to Hook.

In determining whether a defendant’s right to remain silent has been violated, the test is whether the complained-of reference was calculated to direct the attention of the jury to defendant’s failure to avail himself of his legal right to testify. (People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180.) The complained-of statement is permissible when it is motivated by the purpose of demonstrating the absence of any evidentiary basis for defense counsel’s argument, rather than for the purpose of calling attention to the fact that defendant did not testify. People v. Cooper (1985), 136 Ill. App. 3d 517, 483 N.E.2d 309.

The State’s complained-of comment, which was invited by defense counsel’s implication during closing argument that defendant asserted his innocence to Hook, was made to clarify the fact that defendant did not assert his innocence to Hook. The State did not make the complained-of remark to draw attention to the fact that defendant did not testify. In fact, the State clearly and correctly informed the jury that defendant did not have to present any evidence or testify and the fact that he did not testify could not be used in any way in reaching the determination that defendant was guilty.

Defendant’s next allegation of prosecutorial misconduct is that the State urged a guilty verdict based upon fear. Initially, the State argues that defendant has waived this issue by failing to include it in his post-trial motion. We disagree that it was waived because paragraph 13(f) of defendant’s post-trial motion alleges that the State made prejudicial, inflammatory and erroneous statements during closing argument, including the comment “God forbid we become a victim of a sexual assault.” Defense counsel objected to this statement during rebuttal argument and the circuit court sustained the objection. Therefore, defendant did, not waive this argument because he made a contemporaneous trial objection and included the complained-of statement in his written post-trial motion.

Defendant attempts to liken the State’s above comment to that made in People v. Gutirrez (1990), 205 Ill. App. 3d 231, 564 N.E.2d 850. In Gutirrez, the State argued “[h]ow many of you, ladies and gentlemen, getting into your automobile, put your hands in the pockets, making yourselves the victim of this man.” (Gutirrez, 205 Ill. App. 3d at 249, 564 N.E.2d at 862.) Defendant also cited People v. Frazier (1982), 107 Ill. App. 3d 1096, 1101-02, 438 N.E.2d 623, 627, wherein the State argued to the jurors that their sisters, wives and daughters might be raped someday because they happened to be sitting next to someone like the defendant. The State’s comment in this case, however, is distinguishable from those comments in the cases cited by defendant. In the instant case, the State is not suggesting that defendant is going to make the jurors themselves or any of their family members his next victim. In fact, the complained-of statement refers to the victim’s ability to identify defendant. The full context in which the complained-of statement was made is as follows:

“You know that she had an opportunity to observe him, ladies and gentlemen, because the degree of attention that she had was necessarily high. Many of us, God forbid that we should ever be the victim’s [sic] of sexual assault — [objection sustained] — any person, God forbid that anyone should be the victim of such a vile, heinous attack — [objection overruled] — would almost necessarily, and you know this by common sense, would pay attention to the man who was attacking you.”

The State’s rebuttal argument was not intended to inflame the jury and it did not prejudice the jury against defendant. The State did not urge the jury to convict defendant out of fear. Additionally, defense counsel invited the State’s comments by repeatedly implying that J.M.’s identification of defendant was suspect through comments like “[J.M.’s] memory, her opportunity and the reasonableness of her testimony, that’s what you’re here for.” The State is permitted to respond that J.M.’s identification of defendant is reasonable because he was on top of her while sexually assaulting her. Furthermore, any error which may have occurred concerning these statements was cured by the circuit court sustaining objections and instructing the jury that “any statement or argument made by the attorneys which is not based on the evidence should be disregarded.”

Defendant further argues that the State committed prosecutorial misconduct because it “diverted [its] argument to an attack on defense counsel, distracting the jurors from the relevant issues.” During rebuttal argument, the State commented that after J.M. had been robbed, raped, beaten, and searched for while she hid in the bushes, defense counsel wanted the jury to look down on her because in response to defendant’s demand for her jewelry she said “fuck you.” The State included this argument in rebuttal because defense counsel argued in closing, “[w]hat did [J.M.] tell [defendant] when he demanded [her] jewelry? Excuse my language. She said, ‘F you.’ She didn’t say ‘F.’ ” Defense counsel’s argument that J.M. used profanity is irrelevant and was argued to suggest that the use of profanity should be weighed against J.M. The State did not want to lend credence to this suggestion by not responding to the argument during rebuttal. The rebuttal argument was invited by defendant. (People v. Jennings (1986), 142 Ill. App. 3d 1014, 492 N.E.2d 600.) Again, the circuit court cured any error by instructing the jury to “consider only the evidence as it applies to the defendant.”

Defendant’s last contention, that the State’s comments during rebuttal argument amounted to prosecutorial misconduct, focuses on the statement: “we try to do everything we can to make sure that [J.M.] doesn’t get raped again.” This argument was a response to defense counsel’s closing wherein he argued that the sperm from J.M.’s vagina had not been tested to determine from whom it came. The State was explaining to the jury that it is improper to question a victim about prior sexual activity. The State’s comment that the statute protects a victim from being “raped again” was objected to by defendant, and the court sustained the objection and instructed the jury to disregard that comment. The alleged error was cured and did not contribute to the jury’s guilty verdict.

We find that the complained-of statements did not constitute prosecutorial misconduct. Accordingly, defendant is not entitled to a new trial on this basis.

Second, defendant contends that the circuit court improperly allowed the State to use police reports as substantive evidence. We agree with defendant that police reports are generally not admissible into evidence. (People v. Morris (1978), 65 Ill. App. 3d 155, 382 N.E.2d 383.) Police reports are not to be used to divulge substantive evidence, but may be used for impeachment or to refresh a witness’ recollection. (Morris, 65 Ill. App. 3d 155, 382 N.E.2d 383; People v. Williams (1992), 240 Ill. App. 3d 505, 608 N.E.2d 510.) The reason such reports are inadmissible is because they are the product of secondhand knowledge and, hence, hearsay. (People v. Garrett (1991), 216 Ill. App. 3d 348, 576 N.E.2d 331.) Hearsay, however, in the form of prior consistent statements is admissible to rebut an inference that testimony is a recent fabrication. (People v. Manley (1982), 104 Ill. App. 3d 478, 432 N.E.2d 1103.) Thus, prior consistent statements are admissible to show that a declarant told the same story before the alleged recent fabrication. (Manley, 104 Ill. App. 3d 478, 432 N.E.2d 1103.) In the instant case, the circuit court overruled defendant’s objection to the use of the police* report based on the recent fabrication exception to hearsay.

On cross-examination, defense counsel .questioned J.M. about supplying information to a police officer while in the hospital. Specifically, defense counsel asked J.M., “do you recall telling [the detectives] that [the license plate number] was either 716744 or 716748?” J.M. responded that she had always remembered the license plate as 7167LY. The defense counsel implied that J.M. had not accurately recalled and/or identified the license plate number of the van in which the assault took place. This inference was unsupported by evidence. The additional implication of defense counsel’s questioning was that J.M.’s testimony that she had informed the police that the plate number was 7167LY was a fabrication. To rebut these inferences, the State inquired of Hook what the license plate number was which was written in the police report. Hook read from the report the number 7167LY. The State never attempted to introduce the report, itself, into evidence. We find that the officer’s use of the report was not improper.

Finally, defendant contends that the circuit court considered improper factors in aggravation during his sentencing. Defendant argues that the circuit court improperly used his employment history and his failure to visit or support his two children born out of wedlock as factors in aggravation. We disagree.

Defense counsel attempted to assert defendant’s past and cur- ' rent employment as a factor in mitigation. The circuit court responded that after reviewing defendant’s employment history, it was evident that “most of the time [defendant was] unemployed.” Although defendant was employed at the time of his arrest for this crime, no court should be willing to accept his employment as a factor in mitigation since he used a tool of his employment, namely the livery van in which he raped and robbed his victim, to commit his crimes. The circuit court merely refused to consider defendant’s employment history as a factor in mitigation. The record is devoid of any indication that the circuit court, instead, considered his employment history as an aggravating factor.

Defendant’s claim that the circuit court improperly considered his failure to support his two children, a nonstatutory factor in aggravation, is meritless. A sentencing court is entitled to consider nonstatutory factors in aggravation when imposing an extended-term sentence. (People v. Diaz (1989), 189 Ill. App. 3d 473, 545 N.E.2d 399.) A sentencing court is allowed to consider defendant’s history and character when imposing a sentence. (People v. Robinson (1991), 221 Ill. App. 3d 1045, 582 N.E.2d 1299.) Therefore, the circuit court properly considered defendant’s lack of responsibility towards his children. Defendant argues that People v. Smothers (1979), 70 Ill. App. 3d 589, 388 N.E.2d 1114, supports his argument that a sentencing court cannot consider a defendant’s failure to support and accept responsibility for his children as an aggravating factor. Smothers, however, held that the circuit court abused its discretion by considering the defendant’s choice to live with a woman to whom he was not married when sentencing him. (Smothers, 70 Ill. App. 3d at 591, 388 N.E.2d at 1115.) The defendant in Smothers did contribute to the support of his children. Therefore, defendant’s citation of Smothers is unpersuasive.

For the foregoing reasons, we affirm the conviction and sentences of the circuit court of Cook County.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.


author: JUSTICE CAMPBELL

text:
    ST. PAUL INSURANCE COMPANY OF ILLINOIS, Plaintiff-Appellee, v. LANDAU, OMAHANA AND KOPKA, LTD., et al., Defendants-Appellants.
    First District (1st Division)
    No. 1 — 91—2008
    Opinion filed April 19, 1993.

      Landau, Omahana & Kopka, Ltd. (Robert J. Kopka, of counsel), and Frederick A. Lurie, both of Chicago, for appellants.
    Hinshaw & Culbertson, of Chicago (Thomas M. Hamilton, Nancy G. Lischer, and Gary J. Bazydlo, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant law firm Landau, Omahana & Kopka, Ltd. (the firm), and defendants Byron Landau, Gail Omahana, Robert Kopka and Jeffrey Herden (the Landau defendants) appeal from an order of the circuit court of Cook County granting plaintiff St. Paul Insurance Company of Illinois’ (St. Paul’s) motion for judgment on the pleadings. The order grants the relief requested in plaintiff’s motion for a declaratory judgment, which contended that plaintiff was not obligated to defend or indemnify defendants in a defamation suit brought by defendant Karen Conti, a former employee of the firm.

The record indicates the following facts. St. Paul had issued a commercial general liability policy to the firm for the period between May 29, 1988, through May 29, 1989. That policy provided, in relevant part, as follows:

“What This Agreement Covers
* * *
Personal Injury and advertising injury liability. We’ll pay amounts any protected person is legally required to pay as damages for covered personal injury or advertising injury that’s caused by an offense committed while this agreement is in effect.
* * *
Personal injury means injury, other than bodily injury, caused by any of the following offenses that result from your business activities, other than advertising, broadcasting, publishing or telecasting done by or for you:
* * *
—libel or slander;
—written or spoken material made public which belittles thfe products or work of others ***.
Advertising injury means injury caused by any of the following offenses that result from the advertising of your products or work:
—libel or slander;
—written or spoken material made public which belittles the products or work of others *** * * *
Exclusions — What This Agreement Won’t Cover * * *
False material. We won’t cover personal injury or advertising injury that results from written or spoken material made public by or for the protected person if the material is known by that person to be false.”

On February 18, 1990, defendant Conti filed a two-count complaint against the other defendants, alleging wrongful termination, unpaid compensation and defamation arising out of her dismissal from the firm. However, by December 19, 1990, Conti had filed a nine-count verified amended complaint in her suit against defendants, alleging: (1) breach of contract; (2) wrongful discharge; (3) theft of property; (4) failure to reimburse expenses; (5) failure to pay earned fees; (6) defamation; (7) intentional interference by the Landau defendants with Conti’s business relationship with the firm; (8) intentional interference by the Landau defendants with Conti’s business relationship with clients; and (9) intentional interference with prospective business relationships.

Generally, the verified amended complaint alleges that Conti was fired to cover up a mistake made by Landau in handling a case and because Omahana was jealous of Conti. The complaint further alleges that after firing Conti, the Landau defendants stated to other firm employees and to third parties that Conti was incompetent and had defrauded the firm. The specific allegations made in the complaint will be discussed below, when appropriate.

On December 19, 1990, St. Paul filed a complaint for declaratory judgment against defendants, seeking declarations that it had no duty to defend or indemnify the firm or the Landau defendants against Conti’s suit. On March 11, 1991, St. Paul moved for judgment on the pleadings, pursuant to section 2 — 615(e) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2— 615(e)). The transcripts of proceedings on this motion indicate that the trial court found that count VI of the Conti complaint, alleging defamation, was the only count which would raise the possibility of coverage under the St. Paul policy. The trial court indicated that the alleged conduct in this case could be considered business activity within the scope of the St. Paul policy. However, the trial court also indicated that the allegations of the Conti complaint alleged that the firm and the Landau defendants knew the statements they made about plaintiffs were false. Thus, coverage of the claim made in count VI of the Conti complaint was excluded by the language of the policy. Accordingly, the trial court granted judgment on the pleadings in favor of St. Paul. The firm and the Landau defendants filed a timely notice of appeal to this court.

On appeal, the firm and the Landau defendants contend that the trial court erred in granting judgment on the pleadings because the allegations of the Conti complaint trigger St. Paul’s duty to defend.

This appeal concerns a motion for judgment on the pleadings (see Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615(e)), which is similar to a motion for summary judgment insofar as both suggest that no material issue of fact exists. In deciding such a motion, the court must determine from the allegations in the pleadings, construing them most strongly against the movant, whether there is a question of material fact that would bar entry of judgment on the movant’s behalf. (Daymon v. Hardin County General Hospital (1991), 210 Ill. App. 3d 927, 932, 569 N.E.2d 316, 319.) This court may review the question of whether an issue of material fact existed and, if not, whether the motion was properly granted or denied. See Mitchell v. Waddell (1989), 189 Ill. App. 3d 179, 182, 544 N.E.2d 1261, 1263.

In this case, plaintiff moved for judgment on the pleadings regarding plaintiff’s complaint for declaratory judgments that it had no duty to defend or indemnify the firm and the Landau defendants against the Conti lawsuit. Generally, an insurer’s duty to defend an action brought against an insured is determined solely from the allegations of the complaint. In turn, when a complaint sets forth allegations which are within or potentially within the coverage of the policy, the insurer must defend the action. (Thornton v. Paul (1978), 74 Ill. 2d 132, 144, 384 N.E.2d 335, 339; La Rotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 451, 408 N.E.2d 928, 933.) The duty to defend extends to cases where the complaint alleges several causes of action or theories of recovery against an insured even if only one or some of them are within the policy coverage. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 194, 355 N.E.2d 24, 28.) The insurer may safely refuse to defend only when the allegations clearly show that the claim alleged is beyond coverage. La Rotunda, 87 Ill. App. 3d at 451, 408 N.E.2d at 933.

Conti’s verified amended complaint, which is attached as an exhibit to St. Paul’s complaint, contains the following allegations:

“2. By their conduct, defendants maliciously breached Ms. Conti’s employment contract as an associate and an attorney with the Landau law firm, wrongly terminated Ms. Conti’s employment, willfully interfered with Ms. Conti’s present and future business and professional relationships, fraudulently refused to pay monies due to Ms. Conti, intentionally stole property from Ms. Conti, and deliberately made false statements concerning Ms. Conti’s character and competency and accusing her of fraud.
3. This illegal, tortious, and outrageous conduct was motivated, planned, and performed by defendants recklessly and maliciously and with the intent to damage Ms. Conti and to place her in a false light.
* * *
7. Each defendant, except Mr. Herden, knowingly, willfully, and fully participated in the misconduct described in this complaint. Mr. Herden became a member of the Landau firm shortly after December 10, 1988, the date of Ms. Conti’s wrongful termination. Mr. Herden knowingly, willfully, and fully participated in the misconduct that occurred after he joined the Landau firm.
* * *
30. Shortly after December 10, 1988, Mr. Landau, acting for himself and for the other defendants, falsely stated to professional and non-professional employees of the Landau firm that Ms. Conti had incompetently handled all files assigned to her, that she was not competent to practice law, that she had not attended the New York City seminar [which Conti alleges she attended], and that she defrauded the Landau firm. Ms. Conti did not learn about the actual statements made by Mr. Landau until shortly before the filing of [the] action.
31. Further, on information and belief, on dates and at times presently unknown to Ms. Conti and which will be obtained by discovery of the clients of the Landau firm, defendants repeated these false statements to clients of the Landau firm.
32. Moreover, after Ms. Conti began her efforts to mitigate her damages by seeking new professional employment, defendants received requests from prospective professional employers about Ms. Conti's relationship with the Landau firm. On February 16, 1989, one or more of the individual defendants repeated these false statements to third parties.
33. These statements were false when they were made.
34. Defendants knew and intended that these statements were false.
35. Defendants knew and intended that these statements would injure and damage Ms. Conti in her person, in her profession, and in her property.
* * *
37. These statements were made maliciously, in bad faith, and without basis or justification.
* * *
53. The false statements made by defendants constitute defamation per se.”

In this case, the trial court determined that St. Paul had no duty to defend or indemnify the firm or the Landau defendants because the St. Paul policy does not “cover personal injury or advertising injury that results from written or spoken material made public by or for the protected person if the material is known by that person to be false.” The trial court indicated that its decision relied on this court's opinion in Aetna Casualty & Surety Co. v. Freyer (1980), 89 Ill. App. 3d 617, 411 N.E.2d 1157. In Freyer, the insurer claimed it had no duty to defend against claims for assault and battery and property damage because the policy excluded coverage for bodily injury or property damage “which is either expected or intended from the standpoint of the insured.” (Freyer, 89 Ill. App. 3d at 620, 411 N.E.2d at 1159.) This court held there was no duty to defend against a complaint alleging assault and battery or other intentional injury and not also alleging negligence. Freyer, 89 Ill. App. 3d at 621, 411 N.E.2d at 1160.

The Freyer court also noted that “malice or an intention to injure is the gist of an action for assault and battery.” (Freyer, 89 Ill. App. 3d at 622, 411 N.E.2d at 1161.) The Freyer court then listed a number of definitions for the term “malice,” including: (1) the intentional doing of a wrongful act without just cause or excuse, with an intent to inflict injury or under circumstances that the law will imply an evil intent; (2) an intent to do wrongful harm and injury and without just cause; and (3) a wrong inflicted on another with an evil intent or purpose, requiring the intentional perpetration of an injury or wrong on another. See Freyer, 89 Ill. App. 3d at 622, 411 N.E.2d at 1161 (and citations therein).

Yet the tort of defamation is historically and analytically distinct from torts such as assault and battery. Historically, the common law provided strict liability for defamatory falsehoods, subject only to the defenses of truth or privilege. (See Rosner v. Field Enterprises, Inc. (1990), 205 Ill. App. 3d 769, 781, 564 N.E.2d 131, 137.) However, a number of landmark United States Supreme Court decisions interpreting the first and fourteenth amendments greatly altered the landscape of defamation law. (See Rosner, 205 Ill. App. 3d at 781-85, 564 N.E.2d at 137-40.) Without repeating this court’s lengthy discussion and analysis of those Supreme Court decisions, the result of these decisions is that a defamation is now generally governed by two standards of fault and proof — negligence and actual malice. See, e.g., Rosner, 205 Ill. App. 3d at 781, 564 N.E.2d at 137.

“Actual malice” is a term of art developed in the aforementioned Supreme Court decisions. A plaintiff required to meet this standard must plead and prove that a statement was made with knowledge of its falsity or in reckless disregard of its truth or falsity. (See Mittleman v. Witous (1989), 135 Ill. 2d 220, 237, 552 N.E.2d 973, 981.) “Reckless disregard” may be defined as publishing a defamatory statement despite a high degree of awareness of its probable falsity or entertaining serious doubts as to its truth. (Mittleman, 135 Ill. 2d at 237-38, 552 N.E.2d at 981.) A plaintiff required to show actual malice need not show malice in the moral sense of hate, vindictiveness or animosity. (Edwards v. University of Chicago Hospitals & Clinics (1985), 137 Ill. App. 3d 485, 490, 484 N.E.2d 1100, 1105.) Nor is actual malice to be equated with an intention to do an act from which injury may be expected. See Reed v. Northwestern Publishing Co. (1988), 124 Ill. 2d 495, 522, 530 N.E.2d 474, 486.

The concept of “actual malice” is important here because the above-cited Mittleman decision involved a factual matrix largely similar to that presented in the Conti complaint. In Mittleman, our supreme court held that the plaintiff would be required to plead and prove actual malice, rather than mere negligence. (Mittleman, 135 Ill. 2d at 237, 552 N.E.2d at 981.) Without expressing any opinion regarding the Conti lawsuit, it would appear that the Conti complaint strives to meet the actual malice standard and not run afoul of Mittleman. The various paragraphs of the Conti complaint quoted above allege that defendants acted not only intentionally but also recklessly and maliciously. Thus, it appears that the “gist” of count VI of the Conti complaint is actual malice.

As the above discussion indicates, a plaintiff need not plead or prove that a defendant knew a statement was false to plead or prove actual malice. In this case, Conti pleaded recklessness in paragraph 3 of her verified amended complaint and this allegation is incorporated in the defamation count of the complaint. Allegations of recklessness may bring a defamation claim within the potential coverage of a policy which covers defamation but excludes knowing falsehoods. See, e.g., E E O C v. Southern Publishing Co. (5th Cir. 1990), 894 F.2d 785.

In its brief, St. Paul quotes Conti’s response to the motion for judgment on the pleadings, in which she characterizes her verified amended complaint as alleging “no negligent or unintentional or unknowing act of liability.” As noted above, St. Paul’s duty to defend must be determined by reference to the four corners of the complaint. Plaintiff’s later characterization of that complaint is not to be considered here. Nor need we consider the contention of the firm and the Landau defendants that a determination of non-coverage is premature where Conti could amend her complaint to allege simple negligence.

For all of the aforementioned reasons, we reverse the judgment of the circuit court of Cook County and remand the case for further proceedings consistent with this opinion.

Reversed and remanded.

BUCKLEY and O’CONNOR, JJ., concur.


author: JUSTICE SCARIANO

text:
    WILLIAM ROHTER, Plaintiff-Appellant and Cross-Appellee, v. GILBERT PASSARELLA et al., Defendants-Appellees and Cross-Appellants.
    First District (2nd Division)
    Nos. 1 — 91—4052,1—92—0107 cons.
    Opinion filed April 20, 1993.

      Ditkowsky & Contorer, of Chicago (Kenneth K. Ditkowsky, of counsel), for appellant.
    Storino, Ramello & Durkin, of Rosemont (Angelo Del Marto, of counsel), for appellees.
   JUSTICE SCARIANO

delivered the opinion of the court;

Plaintiff William Rohter appeals from the trial court’s grant of a motion for a “directed” finding brought by defendants Gilbert and Patricia Passarella, Dorothy Passarella, 707 Devon Corp., and Park Ridge Travel Bureau, Inc. (the travel bureau). Defendants cross-appeal from the court’s earlier denial of their section 2 — 619 motion (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) which had sought a determination that portions of plaintiff’s claims were barred due to the expiration of the limitations period.

On December 7, 1990, plaintiff filed four separate but identical complaints alleging that defendants retained him to provide accounting services, including the preparation of State and Federal corporate and individual tax returns, and that from tax year 1980 through tax year 1986, he performed these services at the request of defendants but received no compensation. The complaints also alleged that he had tendered a bill for past nongratuitous services rendered to defendants which they had subsequently refused to pay.

Defendants each filed a timely appearance and moved to consolidate the four separate actions. Thereafter, they brought a section 2— 619 motion which asserted that all claims of plaintiff which accrued prior to December 6, 1985, were time barred under section 13 — 205 of the Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par. 13— 205.) As to the portion of plaintiff’s claims which accrued after that date, i.e., the services rendered for tax year 1986, defendants filed a section 2 — 615 motion (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) asserting that because plaintiff was not a certified public accountant, having never passed the exam, he could not charge individuals for whom he rendered public accounting. The circuit court denied both motions without explanation.

On July 22, 1991, defendants filed an answer to the complaint, generally denying liability to plaintiff and asserting, in the alternative, the same affirmative defenses which had been the subject matter of their previous motions. However, only the travel bureau was named in the caption of the answer, and in the text of that pleading only the travel bureau made answer to the complaint. In response to plaintiff’s motion for a default judgment, the four defendants who had not filed an answer sought leave to amend the travel bureau’s answer by adding their names to that of the travel bureau in the caption thereof; but they made no further or other request of the court in their motion for leave to amend. The trial court denied leave to amend and also denied plaintiff’s motion for a default judgment, stating that it fully appreciated the issues before it and that, therefore, the various motions relating to the pleadings were not needed.

The following evidence was adduced during a bench trial. Plaintiff, a former supervisor at the Internal Revenue Service’s Chicago office and, by the time of trial, the chief auditor for the Regional Transportation Authority, testified that in 1976, in his time away from work, he carried on the accounting practice of his brother. Defendants had been clients of his brother and did not register an objection when plaintiff replaced him as their accountant. From 1977 until 1980, he performed general accounting duties for them, including the preparation of their State and Federal tax returns; and upon completion of the forms, he presented them with an annual bill for his services rendered throughout the year.

In 1980, while continuing to perform accounting services for defendants, plaintiff inexplicably stopped billing them for the services of the prior year. This practice of performing accounting services without billing for them continued until 1987, when defendants did not seek plaintiff’s assistance in the preparation of their tax returns. Upon learning that he would not be needed for tax preparation work that year, he tendered a bill to the corporate defendants for services rendered from 1980 to 1987, and he tendered a bill to the individual defendants only one month before filing the instant action in the circuit court.

On cross-examination, plaintiff admitted that he did not perform all the work on defendants’ tax returns, but that some tasks were completed by two bookkeepers who periodically worked for him. He also confessed that he could not affirmatively state the precise amount of time it took him or his staff to complete the forms, and that he calculated his bill on information contained in a general time sheet kept by one of his employees reflecting the time she spent working on the returns. He conceded that he kept no records indicating the time he dealt with the defendants' accounting work and that his bill was merely a two or three times multiple of the amount he paid the bookkeepers for their efforts on defendants’ tax returns.

Defendant Gilbert Passarella, the president of the corporate defendants, was called by plaintiff as an adverse witness. He testified that from 1980 through 1986, he retained the tax return preparation services of plaintiff and that he would also periodically seek his advice with regard to other accounting matters. He conceded that although he expected to pay for the services, he did not do so because no bill was ever tendered. Each year he requested a bill and plaintiff responded that he would “get around to it,” but Passarella inquired no further when no bill was forthcoming.

To prove the value of his services, plaintiff entered into evidence the estimates of the IRS regarding the average amount of time a competent tax professional would need to complete the various tax forms. In addition, he called Joseph Dubow, a certified public accountant with 34 years’ experience as a tax accounting practitioner who specialized in rendering accounting services for small businesses. Du-bow opined that the IRS estimates constituted a reasonable approximation of the amount of time the average taxpreparer would spend completing the various tax forms. He also stated that in his opinion, the amount that plaintiff billed defendants in 1987 reflected the reasonable value of the services he had rendered them between 1980 and 1986.

At the close of plaintiff’s case, defendants moved for a “directed” finding, questioning only the adequacy of plaintiff’s proof with regard to the value of his services. They maintained that in order to establish a prima facie right "to recovery in quantum meruit, plaintiff must offer proof which is specific and detailed, and that since plaintiff offered only evidence on the reasonable value of his services, he did not bear his burden of production.

The court agreed with defendants. Because the parties offered no case law which touched on what an accountant must prove to recover in quantum meruit, the court found itself governed by cases which discussed the reasonableness of attorney fees. Applying that standard, it ruled that plaintiff’s evidence fell well short of the type and quantity of evidence called for in the attorney fee petition cases. Accordingly, the court granted defendants’ section 2 — 1110 motion and dismissed all four actions. Plaintiff filed a timely notice of appeal from the order dismissing his causes of action, and defendants filed a timely notice of a cross-appeal, contending that the trial court erred when it denied their section 2 — 619 motion, which asserted that plaintiff’s claims that arose before December 6, 1985, were time barred.

I

In his first assignment of error, plaintiff claims that the trial court erred by denying his motion for a default judgment because, although all five defendants entered a general appearance in this action, only one defendant out of the five filed an answer to his complaint. Plaintiff overlooks, however, that concomitantly with the court’s consideration of his motion for a default judgment, the four defendants who had not filed their answers moved to amend the answer of the travél bureau in the already consolidated action to include their names in the caption thereof. Although the trial judge denied the motion to amend, he stated that he recognized that all of the defendants were advancing a general denial to plaintiff’s claim; consequently, in light of the fact that all defendants were represented by one attorney and that the omission had been inadvertent, the judge treated the answer of the travel bureau as the answer of all defendants. Since this was a bench trial, and the finder of fact acknowledged that he was sufficiently informed with regard to the few and simple factual issues of the case which were common to all of the defendants, we decline to hold that the court’s denial of plaintiff’s motion for a default judgment constitutes error.

II

The critical issue in this appeal is whether the trial court erred when it granted defendants’ motion for a “directed” finding. In Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43, our supreme court held that in a nonjury civil action, after the plaintiff has presented his case in chief, the defendant may move for judgment in his favor pursuant to section 64(3) of our former Civil Practice Act (now recodified at Ill. Rev. Stat. 1991, ch. 110, par. 2—1110). When ruling on the motion, the trial court is not to view the evidence in the light most favorable to the plaintiff. (But cf. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504 (holding that when resolving a motion for a directed verdict, the trial court is to view the evidence in its aspect most favorable to the nonmoving party).) Instead, it “must consider all of the evidence, including any favorable to the defendant, and is to pass on the credibility of witnesses, draw reasonable inferences from the testimony, and generally consider the weight and the quality of the evidence.” Kokinis, 81 Ill. 2d at 154, 407 N.E.2d at 44.

On appeal, this court must let stand the trial court’s resolution of the section 2 — 1110 motion unless we determine that its decision is against the manifest weight of the evidence. (Kokinis, 81 Ill. 2d at 154, 407 N.E.2d at 45, citing City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 57-58, 349 N.E.2d 399.) Manifest weight is that quantum of evidence which makes the existence or nonexistence of a fact “clearly evident, plain and indisputable.” (Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 83, 392 N.E.2d 628, 634; Haas v. Woodard (1965), 61 Ill. App. 2d 378, 384, 209 N.E.2d 864, 367.) We have held that a finding of fact is contrary to the manifest weight of the evidence “only when an opposite conclusion is clearly evident or *** [the finding] is palpably erroneous.” Fakhoury v. Vapor Corp. (1991), 218 Ill. App. 3d 20, 28, 578 N.E.2d 121, 127.

Here, the trial court found that plaintiff had not presented a prima facie case to establish his right to recover under quantum meruit. Specifically, thé court concluded that plaintiff had offered no evidence which tended to prove precisely the time, effort and expense put forth in his performance of accounting tasks for the benefit of defendants. Given this absence of proof which the court deemed to be essential to plaintiff’s cause of action, it granted defendants’ motion and found in their favor. Therefore, the issue before us, properly framed, is whether under Kokinis, the trial court’s determination that plaintiff did not establish all the elements of a quantum meruit action was against the manifest weight of the evidence.

The literal translation of quantum meruit is “as much as he deserves.” (Black’s Law Dictionary 649 (abr. 5th ed. 1983); Nardi & Co. v. Allabastro (1974), 20 Ill. App. 3d 323, 327, 314 N.E.2d 367, 370.) The common law adopted the term to describe a cause of action which seeks to recover the reasonable value of services which have been nongratuitously rendered, but where no contract exists to prescribe exactly how much the renderer should have been paid. (Ekl v. Knecht (1991), 223 Ill. App. 3d 234, 240, 585 N.E.2d 156, 162; Van C. Argiris & Co. v. FMC Corp. (1986), 144 Ill. App. 3d 750, 753, 494 N.E.2d 723, 725.) In the absence of an enforceable agreement, the law will find that the recipient of the services implicitly promised to compensate his provider for the benefit received. (In re Estate of Callahan (1991), 144 Ill. 2d 32, 40, 578 N.E.2d 985, 988, citing Ashton v. County of Cook (1943), 384 Ill. 287, 301, 51 N.E.2d 161.) Otherwise, absent this implied agreement, the beneficiary would be unjustly enriched by his ability to retain an unintended largess (Callahan, 144 Ill. 2d at 40-41, 578 N.E.2d at 988); accordingly, “the measure of recovery is the reasonable value of plaintiff’s services.” (Ellis v. Photo America Corp. (1983), 113 Ill. App. 3d 493, 500, 447 N.E.2d 852, 857.) It is perfectly apparent that the trial court did not apply this rule when it found that plaintiff offered no proof of damages, yet our review of the record discloses that it contains ample proof on the reasonable value of the benefit received by defendants.

For instance, plaintiff entered into evidence a publication of the IRS which instructs those who are engaged in the practice of preparing tax returns how to complete various IRS forms and schedules properly. Pursuant to the Paper Work Reduction Act of 1980 (5 U.S.C. §5313 (1988)), each instruction also includes an estimated average time required to complete the particular form or schedule. Plaintiff also offered the testimony of Joseph Dubow, who, upon being found by the court to be an expert after testifying in almost excruciating detail about the practice of tax accounting, informed the court how long it takes the average accountant to complete various forms and schedules and what would constitute a fair price for that service. He also affirmed that each of the charges for which plaintiff billed defendants represented a reasonable reflection of the value they received when the services were rendered.

The trial court did not deem sufficient this general evidence which tended to establish the reasonable value of the services at issue. Instead, it wanted specificity, such as evidence by which “a reasonable finder of fact could conclude with anything approaching what work was done, for what services rendered, on what basis of calculation.” Since plaintiff offered no evidence, in the words of the trial court, on “the transactional occurrences,” the court found that he did not establish a prima facie case of quantum meruit. We hold that the court erred thereby.

The standard which the court applied, one which requires a minute detailing of all efforts put forth by the party seeking compensation for those efforts, is appropriate where the party is seeking the benefit of its bargain. Where one sues for breach of an express contract, he must precisely establish the damages he suffers thereby. See Plepel v. Nied (1982), 106 Ill. App. 3d 282, 287-88, 435 N.E.2d 1169, 1174 (holding that where an architect-plaintiff who was prevented from full performance of his contract with the defendant offers no evidence on the percentage of work completed to provide a reasonable basis to calculate damages arising from a breached oral contract, he is not entitled to the full benefit of the contract, but could nonetheless seek quantum meruit).

But where the party seeks not the benefit of his bargain but sues only to disgorge an unjust enrichment, the proper inquiry is the reasonable value of the benefit received. (See Leonard Ashbach Co. v. Lear, Inc. (1954), 3 Ill. App. 2d 254, 121 N.E.2d 343 (abstract of opinion) (finding plaintiff seeking quantum meruit had proven the amount of commission to which he was entitled because a jury could estimate, based on the evidence offered, the reasonable amount due); cf. Big Farmer, Inc. v. Agridata Resources, Inc. (1991), 221 Ill. App. 3d 244, 581 N.E.2d 783 (affirming trial court’s denial of the plaintiff’s motion to amend complaint to add a quantum meruit count, because, although the plaintiff offered detailed evidence on the actual work done for the defendant, it declined to offer any evidence on the reasonable value of the benefit to the defendant).)

“If no contract exists and services are rendered, liability arises only when the results and the benefits of services are accepted by the other party m which case liability arises out of such acceptance of the fruits of the other’s labor. In all such cases liability is measured, not by the amount of time and energy expended by the laboring party but by the value of such services to the beneficiary.” In re Irving-Austin Building Corp. (7th Cir. 1938), 100 F.2d 574, 578.

Here, because the trial court did not view the evidence before it through the proper optic, it was unable to appreciate the authority commanded by the evidence plaintiff offered on the issue of the reasonable value of the benefit to defendants. Of course, while presenting their case, defendants are free to offer evidence which denies, rebuts, controverts or otherwise explains plaintiff’s proof on the reasonable value of the services rendered. But since the record before the circuit court in the case at bar did not contain any such evidence, it erred by giving no respect to plaintiff’s proof. Consequently, its “directed” finding, which is wholly unsupported by the record, must be reversed.

Ill

The final issue stems from defendants’ cross-appeal of the trial court’s denial of their section 2 — 619 motion “for involuntary dismissal” of plaintiff’s complaint. They assert that plaintiff’s right to seek compensation for preparing tax returns accrued as soon as he completed the forms for that year. According to defendants, since plaintiff filed this action on December 6, 1990, he may seek recovery only for those services provided after December 6, 1985, as any right to quantum meruit he may have had for services he rendered prior to that date would be time barred by section 13 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 205). In response, plaintiff maintains that, given the nature of the practice of accounting and the almost symbiotic relationship an accountant must have with his clients, his right to recover was actionable only after he presented defendants with a statement for his services and they denied owing him any amount.

Both parties agree, as they must, that the five-year limitation period of section 13 — 205 applies to quantum meruit actions. (Brown v. Forest Park Foundation (1974), 17 Ill. App. 3d 718, 308 N.E.2d 310; see also P-K Tool & Manufacturing Co. v. General Electric Co. (N.D. Ill. 1985), 612 E Supp. 276.) The only real question, then, becomes one of when the period began to run with regard to plaintiff’s claims: upon presentment and subsequent rejection of a bill for services, or as soon as the services were rendered. The general principle is that a “statute of limitation begins to run when the party to be barred has the right to invoke the aid of the court and to enforce his remedy.” (Berg & Associates, Inc. v. Nelsen Steel & Wire Co. (1991), 221 Ill. App. 3d 526, 532, 580 N.E.2d 1198, 1201, appeal denied (1991), 143 Ill. 2d 635, 587 N.E.2d 1011.) Pursuant to that rule, plaintiff clearly could have billed defendants as soon as he rendered his services to them. Plaintiff obviously appreciated that he was entitled to bill defendants annually because for the tax years of 1976 though 1980 he did precisely that. Once he had billed defendants, plaintiff could have sought the assistance of the courts in recovering the debt owed. See Partipilo v. Hallman (1987), 156 Ill. App. 3d 806, 510 N.E.2d 8 (finding that a homeowner who erroneously paid the property taxes of another property owner was time barred to recover the unjust enrichment because his right to seek disgorgement accrued each year beginning when he erroneously paid the taxes).

We deem plaintiff’s contention that the interdependent relationship of an accountant with his client is such that no clear point of demarcation exists to mark where one year of services ends and the next begins to be belied by his past billing practices and, more important, inapposite to well-established law. From 1976 until 1980, plaintiff was able to find an appropriate break in the year where he could bill defendants for the services he provided. Each year that respite coincided with his completion of their tax returns. For some unexplained reason, it was only after the 1980 tax year that he found it impossible to determine when it was appropriate to seek remuneration for services rendered. We find that the practice of the parties from 1976 through 1980 evinced an understanding shared by all that plaintiff was entitled to be paid annually upon completion of his tax services for each tax year. Furthermore, nothing in the record indicates that plaintiff acted in such a way after that date which would inform defendants that the old rule had changed and that he would now bill them only when their relationship ended. See Ennis v. Pullman Palace Car Co. (1896), 165 Ill. 161, 46 N.E. 439 (holding that where, based on three years of past practice, the parties understood that plaintiff was to be employed and compensated on a month-to-month basis, his right to sue, for the purposes of the statute of limitations, accrued each month, and each unpaid month constituted a separate cause of action).

Accordingly, here, based on his own prior conduct, plaintiff’s right to be compensated accrued each year, and thus under the general rule, the statute of limitations with regard to judicial enforcement of his right of compensation began to run at the close of that year.

Finally, our supreme court has held:

“In respect to the Statute of Limitations *** [if] no time was fixed as to when such labor and services were to be paid for, the law would presume that they were to be paid for at the end of the year ***.” (Schmidt v. Pfau (1885), 114 Ill. 494, 503, 2 N.E. 522, 527.)

(See also Ennis, 165 Ill. at 173, 46 N.E. at 442 (“Ordinarily, when a man is employed under a general agreement which fixes no term of service, and continues in service a long time, the hiring will be treated as a hiring by the year”).) Plaintiff offers nothing which would rebut the long-standing presumption that he was employed on a year-to-year basis and that his cause of action to recover the value of services accrued at the close of each year. Any services which plaintiff rendered prior to December 6, 1985, are therefore outside the limitations period and are time barred. Consequently, the court erred when it denied defendants’ section 2 — 619 motion which asserted the statute of limitations as a defense to part of plaintiff’s claim and must be reversed.

In summary, on remand, after conducting the remainder of the trial which ordinarily would have been conducted after plaintiff’s case, the trial court is to make a determination of the reasonable value of the services rendered by plaintiff to defendants after December 6, 1985.

Reversed and remanded for further proceedings consistent with the views expressed in this opinion.

McCORMICK, P.J., and DiVITO, J., concur.

      Sinee nowhere in our Code of Civil Procedure do we find a motion for a “directed” finding, we assume that what defendants actually brought was a motion pursuant to section 2 — 1110 of the Code of Civil Procedure, entitled “Motion in a non-jury case to find for defendant at close of plaintiff's evidence.” Based on defendants’ persistent mischaracterization of the motion they filed after plaintiff’s presentation of evidence, it would appear that our observations concerning the motion practice in the criminal division of the circuit court of Cook County might be appropriate as well to motions brought in the municipal division. Accordingly, we provide once again our thoughts on the matter:
      “We find no provision in the Code of Criminal Procedure of 1963 or in the rules of the supreme court regarding the invocation of a ‘directed finding’ in cases tried without a jury. However, there appears to have arisen among both bench and bar the curious notion that a trial judge may ‘direct’ himself to make a ‘finding’ at the request of a litigant. Heaven forfend, though, that we should be iconoclastic enough to shatter a practice that has evidently enjoyed such long-continued use as to become at least a quasi-prescriptive entitlement of litigants in civil and criminal cases alike — a quaint example of the role of folklore in the development of our law.” People v. Davilla (1992), 236 Ill. App. 3d 367, 373 n.3, 603 N.E.2d 666, 669 n.3.


author: JUSTICE MURRAY

text:
    THOMAS SCHRATZMEIER, Plaintiff-Appellant, v. MARK MAHONEY et al., Defendants-Appellees.
    First District (5th Division)
    No. 1 — 91—3897
    Opinion filed April 23, 1993.
    John Thomas Moran, Jr., of Law Offices of John Thomas Moran, of Chicago (Barry S. Grossman, of counsel), for appellant.
    Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Nancy J. Arnold, Stephen J. Smalling, and William E. Spizzirri, of counsel), for appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff, Thomas Schratzmeier (Schratzmeier), a former police officer for the Village of Bensenville, brought a negligence action against Metrocom and Metrocom’s employee, Mark Mahoney, seeking recovery for injury to his back. Schratzmeier claimed that his back was injured when Mahoney negligently modified the seats of the Bensenville police department’s new patrol cars by removing “shims and brackets” or “washers” to lower the seats. After considerable activity in the case, which included defendants’ filing various pleadings and motions and Schratzmeier amending the complaint, the circuit court granted defendants’ motion for summary judgment, finding that Schratzmeier was collaterally estopped from pursuing his claim based upon the findings of the Bensenville Police Pension Board (Board). Schratzmeier now appeals from the order granting summary judgment. For reasons that follow, we affirm the judgment of the circuit court.

Background

In 1982, around the time that the Bensenville police department obtained new squad cars, Schratzmeier began experiencing back pain. Within a week of driving one of the new squad cars, Schratzmeier noticed some back pain, and after two weeks, he complained to his shift commander about the seats of the new squad car. Although Schratzmeier suspected a correlation between the seats of the new squad car and his back pain, he continued to use the new squad car without making any adjustments to the seat. In August 1982 his back pain became so severe that he sought medical attention and subsequently underwent spinal fusion surgery for disc herniation and spinal stenosis. As a result, Schratzmeier was unable to work from August 16, 1982, until January 1, 1983.

Due to his inability to work, Schratzmeier applied to the Board for disability benefits. He sought “line of duty” pension benefits, pursuant to section 3 — 114.1 of the Illinois Pension Code (Code) (Ill. Rev. Stat. 1981, ch. 1081/2, par. 3 — 114.1), based upon his belief that his back pain had been caused by the squad car seat. In the alternative, Schratzmeier requested “not line of duty” pension benefits, pursuant to section 3 — 114.2 of the Code (Ill. Rev. Stat. 1981, ch. 1081/2, par. 3-114.2).

The board of trustees for the Bensenville Police Pension Fund, which has exclusive authority to control and manage the pension fund, subject to judicial review pursuant to the Administrative Review Law (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.; Ill. Rev. Stat. 1981, ch. 1081/2, pars. 3 — 132, 3 — 133, 3 — 148), held an evidentiary hearing on Schratzmeier’s application on December 16, 1982. Schratzmeier, represented by an attorney, attended and testified at the hearing.

Considerable evidence was presented at the pension board hearing, including the testimony of two doctors, a mechanical engineer and two fellow Bensenville police officers. According to Schratzmeier’s own testimony, he was a police officer for the Bensenville police department since 1972 with a history of back pain. In 1978, after being involved in an automobile accident in a police chase, he underwent surgery for the removal of a herniated disc. In 1980, after having knee surgery due to a work-related fall, he was hospitalized and placed in traction for muscle spasms in his back. After this 1980 hospitalization Schratzmeier didn’t experience any back pain until sometime around July 1982, about three days after the police department obtained new squad cars. By August 16, 1982, Schratzmeier had to be hospitalized due to the back pain and subsequently underwent surgery.

Schratzmeier further testified that he was aware that the fleet of new 1982 Ford LTD squad cars were all modified at the police department prior to their being put into service. The modification consisted of the removal of certain shims or washers to provide more head room. It was Schratzmeier’s belief that the modified seat of his new squad car caused his back pain. However, he admitted that he never drove the new squad car without the modification. Therefore, he could not say whether or not the seat caused him any pain prior to the modification.

Two other Bensenville police officers testified. Each officer drove a different squad car. One officer testified that initially he did not experience any pain using the new, modified squad car seat. However, after returning from a leave he began to suffer from headaches, which he believed were caused by stress on his back and shoulders due to the car seat. About 10 days later the seat of his squad car broke. The officer indicated that the modified seat tilted back, so that it rested on the “cage.” This apparently caused the seat to break. After the seat was repaired the officer, on his own, placed three washers under the seat. This seemed to eliminate the backward tilt to the seat and he no longer experienced headaches.

The second officer indicated that he never experienced any back pain with his own squad car, which apparently had the same modification as the other squad cars (including Schratzmeier’s), but that he did experience back pain on one occasion when he used Schratzmeier’s squad car.

A mechanical engineer, who was hired by the board, testified concerning measurements he took of a squad car seat. He also presented a drawing he made from these measurements. According to his testimony, the modification of the squad car seats due to the removal of washers from the floor brackets resulted in an extremely minor alteration to the tilt of the seat. In fact, according to his calculations, the change in the angle of the seat was only .08 of an inch.

Two doctors also testified, each indicating that Schratzmeier’s back pain could have been caused by the new, modified squad car seat. Although one doctor indicated that a change of .08 of an inch to the tilt of the seat was probably not significant enough to cause a problem, the other doctor indicated that Schratzmeier’s previous back injury made him predisposed to injury and more likely to be affected by minor changes. In fact, this second doctor indicated that something as minor as a sneeze could bring on recurrent back problems.

After considering all of the evidence, the board of trustees decided to grant Schratzmeier a “not line of duty” disability payment, indicating that Schratzmeier did not prove by a preponderance of the evidence that his back injury was related to his modified squad car seat. Schratzmeier apparently accepted the nonline of duty pension and did not seek judicial review of the Board’s decision to deny the line of duty pension.

Over a year later, on August 14, 1984, Schratzmeier filed suit against Metrocom and Mahoney. In the complaint Schratzmeier alleged that he sustained back injury as a result of Mahoney’s negligent modification of the seats on the Bensenville police department’s new squad cars.

Initially, defendants moved for summary judgment on the basis of the statute of limitations. However, when that motion was denied, defendants moved for summary judgment contending that Schratzmeier was collaterally estopped, by virtue of the pension board’s findings, from relitigating the issue of the cause of his back pain. This motion was granted, and the order, dated September 3, 1991, stated that “there is no just cause or reason to delay enforcement or appeal of this order.” Schratzmeier filed a motion to reconsider, which was denied in an order dated November 26, 1991. This timely appeal followed.

Opinion

Collateral estoppel is a branch of the judicial doctrine of res judicata, whose underlying policy is to limit parties to a single opportunity to litigate a claim or issue fully and fairly. (Raper v. Hazelett & Erdal (1983), 114 Ill. App. 3d 649, 449 N.E.2d 268.) Collateral estoppel precludes the relitigation of any matter in issue which was actually or necessarily decided in a previous claim or cause of action between the same parties or their privies. (Godare v. Sterling Steel Casting Co. (1981), 103 Ill. App. 3d 46, 50, 430 N.E.2d 620.) It is well settled that this doctrine is applicable to the decisions of administrative agencies, as long as the agency was acting in an “adjudicatory,” “judicial” or “quasi-judicial” capacity and there is an “identity of issues,” that is, that the disputed issue of fact properly resolved by the agency is identical to the issue presented in the new claim. Raper, 114 Ill. App. 3d at 652; Godare, 103 Ill. App. 3d at 51.

Although plaintiff Schratzmeier recognizes this general principle of law, he seeks to avoid its application to this case by arguing that he was not afforded due process or given a full and fair opportunity to litigate the issue of causation at the disability hearing conducted by the Board. He concludes, therefore, that it would be manifestly unjust to give collateral estoppel effect to the Board’s decision. We disagree.

As stated in Raper, for collateral estoppel to apply, the “full and fair opportunity to litigate” requirement is satisfied even if only a slight amount of evidence was presented on the disputed matter actually decided in the first suit. (Raper, 114 Ill. App. 3d at 653.) The record shows that at the pension board hearing there was a considerable amount of evidence presented on Schratzmeier’s claim that he became disabled when the modified seats of his new squad car caused injury to his back. Furthermore, Schratzmeier was represented by an attorney, he presented witnesses and had an opportunity to cross-examine the expert witness brought in by the Board. The Board resolved the disputed issue of causation by rejecting Schratzmeier’s claim for a line of duty pension and, instead, granting him a nonline of duty pension. Although Schratzmeier was free to appeal the Board’s decision, he apparently did not do so and merely accepted the nonline of duty pension.

Under the above-stated circumstances, we believe that collateral estoppel must apply and that Schratzmeier is estopped from re-litigating the question of whether his injuries were caused by the modified squad seats. By accepting the Board’s decision and the non-line of duty pension, Schratzmeier accepted the Board’s determination that his back injury was unrelated to his work, i.e., the modified squad car seat.

The decision in McCulla v. Industrial Comm’n (1992), 232 Ill. App. 3d 517, 597 N.E.2d 875, compels the same conclusion. In McCulla a fireman sought benefits under the Worker’s Compensation Act (Ill. Rev. Stat. 1991, ch. 48, par. 138.1 et seq.), contending that he had suffered injuries arising out of his employment. However, the Industrial Commission denied benefits on the basis of collateral estoppel because the firemen’s pension board previously awarded the fireman a “not in duty” pension based upon its finding that the same injury was not work related. On review the court affirmed the Industrial Commission’s decision, finding that the fireman was collaterally estopped from relitigating the issue of causation.

We note that defendants also raise the question of whether the trial court erred in determining that the statute of limitations did not bar Schratzmeier’s claim. However, because we find that this is a classic case of collateral estoppel, we need not reach the limitations issue.

The order of the circuit court granting defendants summary judgment on the basis of collateral estoppel is hereby affirmed.

Affirmed.

McNULTY and COUSINS, JJ., concur.

      Spinal stenosis was explained by plaintiff’s doctor as a narrowing of the spinal cord which results in the entrapment of the nerve roots. It is a degenerative disc disease that occurs over time.

      Schratzmeier’s testimony at the hearing indicates that he began experiencing back pain shortly after the new squad cars were received by the police department, which Schratzmeier estimated to be in July 1982. However, in his deposition testimony Schratzmeier indicated that the new squad cars were delivered in early May 1982 and put into service soon after. Therefore, he states in his deposition that he began experiencing pain as early as May 1982.